ANWAR KHAN AND ANOTHER Vs. STATE

JUDGEMENT

(1.) JUDGMENT This appeal, preferred by the appel­lants u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter to be re­ferred as Cr.P.C.), is directed against the judgment and order dated 24.02.1994 passed by Special Judge (Additional Sessions Judge), Nainital in Sessions Trial No.287 of 1989, State Vs. Anwar Khan and Smt. Hasina, whereby the learned Special Judge (Additional Ses­sions Judge) has convicted the appel­lants/accused Anwar Khan and Smt. Hasina under Section 306 of Indian Pe­nal Code, 1860 (hereinafter to be re­ferred as I.P.C.) and sentenced each of them to seven years' rigorous imprison­ment with fine of Rs.5,000/- and in de­fault of payment of fine, further three months' R.I. was awarded to each of them.

(2.) CHIEF Judicial Magistrate, U.S. Nagar vide his report dated 1.12.2008 has informed that appellant No.2-Smt. Hasina had died on 28.9.2004. As such, the appeal filed by appellant no.2-Smt.Hasina stands abated.

(3.) IN brief, the prosecution case is that Nabi Sher Khan (P.W.1) lodged an FIR at P.S. Kichha with the averments that appellant/accused Anwar Khan was married with Ishrat Jahan (deceased) before 5-6 years of the said incident and father of deceased Ishrat Jahan namely Jabar Khan (P.W.3) is resident of Vil­lage Ali Nagar, Bhojipura, Distt. Bareilly. From the aforesaid wedlock, a son was also born. Appellant/accused Anwar Khan was having, illicit relations with one Hasina and before one year of the said incident, appellant/accused Anwar took Hasina along with him in his house. Ap­pellant/accused Haseena (now de­ceased) was a lady of loose character and she had been already married many times in the past. After arrival of Hasina in the house of appellant/accused Anwar, he started harassing his wife Ishrat Jahan (deceased) physically and mentally. It was further stated that in the intervening night of 29/30.4.1989 at about 1:00 A.M., complainant Nabi Sher Khan went to the houses of Asgar Khan and Nanhey Khan (P.W.2) to engage and bring them for harvesting his wheat crop. When the complainant along with the aforesaid persons was coming back, then he heard shrieks from the house of appellant/accused Anwar Khan. Then the complainant Nabi Sher Khan knocked the door and after some time, appellant/accused Anwar Khan opened the door and tried to run but he was stopped by the complainant and his as­sociates. Appellant/accused Haseena was also present there and the dead body of Ishrat Jahan was lying on the cot and ligature marks were also present on the neck of Ishrat Jahan. Appellants/accused Anwar and Hasina (now de­ceased) confessed their guilt before them. Meanwhile, the villagers also ar­rived at the place of occurrence and before the villagers also, appellants/ac­cused Anwar Khan and Hasina (now deceased) confessed their guilt. In the morning, complainant (P.W. 1) Nabi Sher Khan with the help of P.W.2 Nanhey and Asgar Khan brought the appellants/accused in the police station and lodged the report Ex.Ka-1 on 30.4.1989 at 7:35 A.M. On the basis of this report Ex.Ka-1, CHIK FIR was pre­pared by Head Moharrir Gajraj Sharma, i.e. Ex.Ka-13. The necessary entry was also made in the G.D. by him, the car­bon copy of which is Ex.Ka-14. Special Report of the case was prepared by Constable Clerk A.A. Khan, the carbon copy of which is Ex.Ka-15. The investi­gation of this case was entrusted to S.I. Surendra Singh (P.W.7). The inquest of dead body of Smt. Ishrat Jahan was prepared on 30.4.1989, i.e. Ex.Ka-2. Along with the inquest report, specimen of seal Ex.Ka-3, Police Form No.33 Ex.Ka-4, letter to the M.O. I/C Civil Hospital. Haldwani for conducting the post-mortem (Ex.Ka.5), sketch of dead body (Ex.Ka-6) and Police Form No.13 (Ex.Ka-7) were also prepared. After that the dead body was sent for post-mortem and the post-mortem on the dead body of Smt. Ishrat Jahan was conducted by P.W.8 Dr. Gurnam Singh, the post­mortem report is Ex.Ka-12. During the course of investigation, the I.O. in­spected the place of occurrence and pre­pared the site plan, i.e. Ex.Ka-8. The I.O. also recovered a DIBIA which was lightning on the place of occurrence at the time of incident and prepared a Fard, i.e. Ex.Ka-9. The said DIBIA was given in the Supurdgi of Smt. Nanhi. The I.O. during the course of investiga­tion also recovered the rope and the pieces of bangles from the place of oc­currence and prepared a Fard, i.e. Ex.Ka-10. During the course of investi­gation, the I.O. recorded the statements of witnesses and after completing the investigation, he filed the charge sheet against the appellants/accused, i.e. Ex.Ka-11.