MOHAMMAD SHER BAHADUR KHAN Vs. STATE

JUDGEMENT

(1.) These two appeals are inter-linked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Sher Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgement shall govern both the appeals.

(2.) Challenge in these two appeals is to legality of judgement and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, 'IPC'), and sentenced to undergo imprisonment for life. Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120-B/109, read with Section 34, IPC, and Section 5(3)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').

(3.) Prosecution version shorn of unnecessary details is as follows :-On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P. S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Khan publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some of their other relatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased and kept in a hole of that verandah at the time of occurrence.Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.