ISH MOHAMMAD Vs. STATE OF U P

JUDGEMENT

(1.) -This appeal filed by Ish Mohd. and Smt. Ido is directed against the judgment and order dated 30-6-1978 passed by the IV Additional Sessions Judge, Mainpuri, whereby he has convicted and sentenced the appellants Ish Mohd. and smt. Ido under sections 302/34 I.P.C. and sentenced each of them to imprisonment for life. The third accused Smt. Batasho was given the benefit of doubt and acquitted of the charges.

(2.) Briefly the facts of the prosecution case are that the complainant Karim Khan (P. W. 1) Shahzada and Talewar deceased are real, brothers. They use to live in village Rampur and later on separated. After separation they came to live at Nagla Dali hamlet of village. Garhi. Two years before the occurrence Shahzada and TalewarT also separated on account of differences between the ladies. Talewar deceased built his own house in which he lived along with his wife Smt. Ido appellant and-mother-in-Law Smt. Batasho (acquitted accused) at a distance of 60 yards from the house of Shahzada Khan. Smt. Ido, appellant is divorced lady She was married to Talewar deceased about 8 or 9 years back. From their wedlock these children were born. Appellant Ish Mohammed r/o village Padma is a sisters son of Talewar deceased and used to visit Talewars house. It is alleged that Ish Mohd. appellant had illicit relations with Smt. Ido and a week prior to the actual occurrence a wordy quarrel took place between the deceased and the appellants which lasted for about four hours from 8 p.m. to mid night. The next day on 18th September, 1977, at about 5 p.m. Smt. Ido Informed Shahzada (P.W. 5), brother of the deceased that Talewar had left the house and had gone away on account of some displeasure. Shahzada conveyed this information to his elder brother Karim Khan, complaint, who lived in village Rampur. Next morning on 19th September, 1977, Karim Khan and Shahzada went in search of Talewar deceased and visited Firzabad, Patau, Raimja and Adampur and returned to Rampur on the fifth day at about 4 p.m. on the 6th -day they came to Dali Nagla and found Talewar's house locked. Thereafter they went to village Padan to find out if they were there. When no one was found Karim Khan and Shahzada broke open the lock of Talewars house, on entering inside they found foul smell coming from inside the Kotha where Bhoosa was stored. On removing the Bhoosa they recovered the dead body of Talewar deceased, which was about 9 inches under the earth. The dead body was taken up and kept in the court-yard at 10 or 10-30 a.m.

(3.) Karim Khan (P.W. 1) went to the Police Station and got the written report. (Ex. Ka-1) scribed by Hon Lal Panwari who keeps a shop outside the Police Station and delivered the same at the Police Station. A case was registered against all the three accused under sections 302/34 I.P.C. and it was entrusted for investigation to Sri Nathu Singh Yadav, S.I. (P.W. 6) who was present at the Police Station. He reached the spot on 26th September, 1977, at about 5-30 p.m. Soon after a list of articles in respect of Talewars property (Ex. Ka-4) was handed over to him by Shahzada Khan (P. W.5) He inspected the spot and prepared site plan (Ex. Ka-10). Karim Khan (P.W. 1) was interrogated and the inquest report (Ex. Ka-5), photo lash (Ex. Ka-6), challan lash (Ex. Ka-7) and covering letter (Ex. Ka-8) were prepared by Nathu Singh, S.1. The dead body of Talewar deceased was sent through Chandrapal constable and Chaukidar for post mortem examination which was conducted by Dr. R.S. Gupta (P.W. 7) on 27 September, 1977 and he found the following antemortem injury on his person: Incised wound 9 cm. x 3 cm x bone deep on front of neck on mid of thyroid cartilage; No other injury recognizable on the dead body was found. On internal examination thyroid cartilage on neck vessels was found but: surrounded vessels also cut. In the opinion of the doctor the death was caused due to shock and haemorrhage due to injury noted above.