RAZAK KHIZAR Vs. STATE

JUDGEMENT

(1.) RAZAK Khizar appellant was tried for an offence under Sections 302/394 RPC by the learned Sessions Judge Srinagar. By his order dated 19-1-66 the learned Sessions Judge has acquitted the accused under Section 302 RPC but has convicted him under "section 201 RPC and sentenced him to five years rigorous imprisonment and to a fine of Rs. 100. About the offence under Section 394 RPC the learned Sessions Judge has not returned any express finding, but from his judgment it can be concluded that he has not found that offence proved against the accused. Against his conviction and sentence Razak Khizar has filed an appeal. The State has also Bled an appeal against the order of the learned Session Judge acquitting the accused under Sections 302 and 394 RPC.

(2.) THE facts that have led to the convietion of the accused-appellant are as under;

(3.) RAZAK Khizar (who hereinafter will be referred to as the accused) was a cook-cum-bearer in the Embassy Hotel situate at Dalgate Srinagar. He performed the duties of Chowkidar also. On 1st June 1964 a visitor by name R. Mohan from outside the State was brought to the hotel by one Ghulam Mohd. Shala, a Commission agent, P. W. 2. He was given room No. 19 and he stayed in the hotel till 7th June 64. The accused attended on this visitor. On the 8th June the headless body of a human. being was discovered at Chinarbagh Bund. A Cld constable, who was no other than the father of the accused, by name Ramzan Khizar, informed the Kothibagh thana about the incident. The police reparied to the scene and prepared a seizure list Ex. PDI of the headless body. Investigation started. The hotel people made inquiries on 8th June but no trace of the visitor R. Mohan was found. On the 8th June room No. 19 of the Hotel was searched and whatever articles were recovered from that room, a seizure list was prepared which is marked Ex. PB. On 9th June a report was lodged by Janki Nath Jinsi Manager of the Embassy Hotel with the DSP Syed Wali Shah about the disappearance of the visitor, R. Mohan. This report is marked Ex. PA. In the afternoon the police were informed that a human head was lying in a latrine at Arampura Rainawari. The police went on spot, recovered the head and prepared the seizure list Ex. PP. The accused was interrogated because he was suspected to have something to do with the disappearance and possible murder of R. Mohan. In the afternoon of the 10th the accused made a statement which was reduced to writting and which is marked Ex. PX. When this statement was reduced to writing, three gentlemen, namely, Abdul Kabir, PW 12, Som Nath PW 18 and Mohd. Ismail were sent for by the police. On the basis of this document Ex. PK the following recoveries were made at the instance of the accused. One blood stained bag gunny P 1 from the attic of the Embassy hotel which was seized (Ex. PH/1 ). From the hall of the hotel which was near this attic some blood stains were removed and their seizure list Ex. PS was prepared. At the instance of the accused from the kitchen of the hotel out of a number of knives the accused produced one knife which is Ex. P 2 and a seizure list thereof was made vide Ex. PD. There were some blood stains on this knife which were removed by the police. the instance of the accused further, a pair of pants belonging to the accused was recovered from one PW Ghulam Mohd. Dhobi PW 23. The pants had been washed but they still contained some stains of blood. At the instance of the accused the father of the accused Mohd. Ramzan Khizar produced Rs. 390 in Rs. 10 currency notes which bear the marks V 27-778831 to V 27-778846 and V 27-778355 to V 27778377. A seizure list of these notes produced by the father of the accused was prepared which is marked EX PF, At the instance of the accused on the same day the boat of one G. M. Karnai P. W. 11 was seized. The accused pointed out this boat as having been used by him for carrying the deceased R. Mohan to the place where he was alleged to have been murdered. The police also seized a shirt worn by the accused by means of a seizure list Ex. PKI and a Rs. 10. 00 currency note No. V 27-778848. Further, from the garments worn by the deceased another currency note No. V 27778351 was recovered which was seized by means of Ex. PQ by the police. One handkerchief was recovered from an Almirah of the hotel at the instance of the accused which was seized by means of Ex. PL. All these blood stained articles recovered namely, the bag, butcher's knife, the shirt, the handkerchief, and the blood stains recovered from the hall near the attic were sent to the Chemical Examiner along with the pair of pants recovered from GM Dobi. The Chemical Examiner was of the opinion that all these articles as also blood stains removed from the knife and the hall and were stained with human blood. About the pair of trousers the chemical Examiner was of the opinion that due to the pants being washed, the blood had disintegrated and therefore, no opinion could be given about these stains on the pants which persisted on them despite their being washed. The report of the Chemical Examiner is marked Exs. B/2 and C/2.