KALU Vs. STATE

JUDGEMENT

(1.) THE three appellants, Kalu, Wazir Hussain and Mohammad Hus-sain were charged in the court of Sessions Judge, Poonch, with having committed offences punishable under Sections 302/201 read with Section 34, R. P. C. at the trial the learned Sessions Judge found that the first appellant, Kalu, was guilty of both the offences and sentenced him to death for the offence under Section 302, R. P. C. and to rigorous imprisonment for five years and a fine of Rs. 500/- for the offence under Section 201, R. P. C. He however, found that the offence under Section 201, R. P. C. alone was brought home to the other two accused and sentenced them each to rigorous imprisonment for five years and a fine of Rs. 500/ -. By this appeal the accused challenge their conviction as also the sentenced imposed on them. There is also a reference from the Sessions Judge for the confirmation of the death sentence imposed on Kalu. This judgment will govern the disposal of both the appeal and the reference.

(2.) BRIEFLY stated, the prosecution case-is that in the early hours of the morning on 7-8-1970, the accused kalu, acting in concert with the other two accused, caused the death of the deceased, Mir Hussain, by cutting him with an axe while he lay asleep on a cot in a room in the house of the accused. it is suggested that the accused wanted to get rid of the deceased because of certain disputes existing between him and kalu, one relating to Nautor Land and the other respecting sheep which were allegdly stolen by Kalu from the possession of the deceased and later on resorted to the deceased through the intervention of the village Baradari. In order to achieve his object, as the story goes, Kalu, acting in collaboration with the other two accused, invited the deceased to his house on the day preceding the night of occurrence falsely holding out to him that they would sit together and compose their differences. Having murdered the deceased, as the story goes further, the accused wrapped the dead body in a loi (Blanket) and deposited it in their field nearby amidst maize crop grown over it. On the night following they lifted the body from there and carried it to Jabreli Nullah where they hid the trunk of the body in the bushes and the head underneath the stones. Thereafter on the expiry of about 10/11 days they removed the trunk from the bushes and threw it into the Nullah. The current of the water swept the trunk down the Nullah, until it was discovered at a distance by Alam Din P. W. 6 on 21-8-1970 with its one leg and one feat missing. The body was identified on the next day by Sakhi Mohammad. Numberdar P. W. 1; as that of Mir Hussain. He conveyed the information to the police as per Ex. A. Investigation ensued during the course of which certain recoveries were made by the police particularly that of the head of the deceased and the axe at the instance of the accused Kalu. Eventually the accused were tried, convicted and sentenced, as aforesaid.

(3.) ON behalf of the accused-appellants, it was contended before us as before the learned Sessions Judge that the prosecution had failed to prove that the trunk and the head belonged to the body of the deceased. The learned Sessions Judge has rejected the argument observing: The most important question in the present case that warrants a careful consideration of the prosecution evidence is the identification of the dead body. It is on record that the dead body of Mir Hussain deceased was recovered after a number of days. The learned Counsel for the accused argued that the dead body as it was lying in the Nala was without head and that it could not be identified and also that the skull which is supposed to have been recovered at the instance of the accused Kaloo had also decomposed and was without skin and hair and that it was not identifiable. He, therefore, stressed the point that there is no evidence on record to indicate that the dead body was that of Mir Hussain and that unless this fact is proved, the accused cannot be convicted for the murder of Mir Hussain. It is in evidence that the face of the skull that was recovered at the instance of Kaloo accused was without skin, but above the eyelids there was some skin and hair on the skull thus recovered. It was, therefore, not difficult for Kaloo P. W. brother of the deceased to identify the skull as that of Mir Hussain deceased. There is plenty of evidence on record that when the dead body of Mir Hussain was located in Nala, P. Ws. Sakhi Mohd. and Kaloo brother of the deceased identified the dead body as that of Mir Hussain deceased. Sakhi Mohd. P. W. , therefore, made a report Ex. A to the police station Darhal and in that report he has categorically stated that the dead body infact is that of Mir Hussain deceased. This Sakl' Mohd. P. W. has in clear terms stated that the deceased besides being his neighbour had also worked as his employee and that he identified the dead body to be that of Mir Hussain deceased after examining its arms and nails. He further identified the skull of the dead body. Similarly Kaloo P. W. who is the step brother of the deceased Mir Hussain who also identified both the dead body as well as the skull to be that of his deceased brother Mir Hussain. Nabi Baksh P. W. has also identified the dead? body as that of Mir Hussain deceased. P. W. Dr. Abdul Rehman has categorically stated that bones of the Vault of the skull were examined by him and he found them to be that of a male human being aged about 35 years. Bones comprised of two parietal and one occipital were together and there was no trace of any tissue attached with the bones. The Doctor on clinical examination came to the conclusion that these bones were parts of' the dead body of the deceased on which he conducted the post mortem. He further states that due to the external appearance of the Vault of the skull it could be detected that it belonged to the dead body and the skeleton was also having resemblence. This opinion of the Doctor was assailed by the learned Counsel for the accused after taking support from Dr. K. L. Sharma, Surgeons Specialist District Hospital Rajouri who 00 examination stated that the age and sex cannot be determined by these bones as stated by Dr. A. Rehman. He, therefore, is of the. view that in view of the opinion of the Surgeon Specialist Dr. Rehman's statement to the effect that the vault of the skull belonged to the same dead body should be brushed aside. After considering the entire facts and1 after taking into consideration the series of events that led to the murder, discovery of the dead body and skull and other discoveries I find myself in complete disagreement with the learned Counsel for the accused : What Dr. A. Rehman has said is that on clinical examination he found the head to be belonging to the same dead body. Dr. K. L. Sharma D. W's opinion cannot be considered in isolation of other facts of this case and when Dr. A. Rehman's opinion is combined with other facts and events one can easily conclude that the skull belonged to the dead body of Mir Hussain deceased that was recovered from the Nala. In this connection it is important to record that the dead body was identified by Kaloo brother of the deceased and Sakhi Mohd. P. W. a neighbour and once a master of the deceased. He identified the dead body on examination of its arm and nails. Such type of identifications are possible particularly when a P. W. had a chance to be very close to the deceased. Over and above this it is in evidence that when the skull was recovered, it was found containing some hair and some skin was in tact though above the eyelids; Kaloo P. W. brother of the deceased identified the head as that of Mir Hussain deceased. Besides what is more important is that the deceased was last seen with the accused and thereafter he disappeared. It was the accused Kaloo who pointed to the place where he had concealed the skull of the dead body and it was within his exclusive knowledge. Above all the shirt, under coat and the umbrella of the dead body of Mir Hussain were also hidden by the accused Kaloo and thesse articles were recovered at his instance. In their confessional statements also the accused Wazir Hussain and Kaloo have admitted that they had hidden the head of the deceased at a particular place. All these facts combined together if looked at and if the statements and opinion of Dr. A. Rehman is considered in conjunction with these facts, one can easily conclude that the head that was recovered at the instance of Kaloo accused belonged to the dead body of Mir Hussain deceased. Therefore, clinical examination apart the facts, evidence and circumstances leave no doubt in my mind that the head recovered by the police was that of the dead body of the deceased Mir Hussain, In these circumstances I am of the opinion that despite the decomposition of the dead body it has sufficiently been identified by the prosecution witnesses. These observations of the learned Sessions Judge are as much erroneous and unconvincing as they are high sounding. He has mixed up the various circumstances of the case least realising that each circumstance is separate from the other and must stand or fall on the affirmance or nonaffirmance of the features peculiar to it. His appreciation of the evidence is laconic and faulty.