Aziz Ahmad and Another vs State

M.M. Gupta, J.—Aziz Ahmad and Mohammad Hanif preferred this appeal against their conviction by the I Vth Additional Sessions Judge Bareilly. Mohammad Hanif was convicted u/s 302 Indian Penal Code u/s 307 read with Section 34 Indian Penal Code and u/s 450 Indian Penal Code . Under these sections he has respectively been sentenced to undergo imprisonment for life, rigorous imprisonment for five years, and rigorous imprisonment for six years. Appellant Aziz Ahmad was convicted u/s 302 read with Section 34 Indian Penal Code, u/s 307 simpliciter and u/s 450 Indian Penal Code and u/s 25(b) Arms Act. Under these sections he has been respectively sentenced to undergo imprisonment for life, rigorous imprisonment for five years, rigorous imprisonment for six years and rigorous imprisonment for six months.

Afzal Hyder and his father Mustaqe Ahmad resided in a house in Mohalla Kela Bagh of Bareilly town within the Police Circle of Qila. In a part of the house the Appellants who were brothers resided as their tenant. The Appellants were in heavy arrears of rent. In the rains preceding the occurrence a portion of the wall had fallen down. The Appellants accused Afzal Hyder and Mustaq Hyder of demolishing a portion of the wall.

The prosecution case now is that on 19th September 1978 at about 8 A.M. Mustaq Hyder along with his son Afzal Hyder were sitting inside their house. The two Appellants with knives in their hands entered the house. Aziz Ahmad caught hold of Afzal Hyder by his collar saying:

Tujhe Jan Se Khatma Kar Dunga Aaj Aur Tujhe Deewar Khisana Aaj Sikha Dunga.

Thus saying he stabbed in his back and dragged him out of his house. Outside the house Aziz Ahmad gave several knife blows to Afzal Hyder. On seeing her brother attacked Km. Anwar Sultana tried to intervene. She also received injuries in the process. Mustaq Hyder on seeing his son caught by Aziz Ahmad raised an alarm. Thereupon Mohammad Hanif gave several knife blows to Mustaq Hyder. The alarm raised by the victims attracted to the scene of occurrence Israt Ali, Abdul Hamid and others. On their challenging them the Appellants ran away from the scene of occurrence. Both the injured proceeded to Police Station Qila but on their way to the Police Station Afzal Hyder got the report typed by a Hindi Typist and lodged it at the Police Station Qila on 19th September at 8.30 A.M.

The investigation was taken up by PW 6 Ram Pal Singh. He commenced the investigation by recording the statements u/s 161 Code of Criminal Procedure of Afzal Hyder and Mustaq Hyder.

Both the injured were sent to the District Hospital Bareilly for their medical examination and attention. Mustaq Hyder was examined by Dr. A.K. Bansal PW 5 on 19th September 1978 at 9.20 A.M. He found the following injuries on his persons:

* * * * The injuries were fresh. Bleeding was present. Injuries Nos. 1 and 2 were simple and the rest were under observation. All injuries were caused by sharp edged object. Duration was fresh.

Afzal Hyder was examined by Dr. A.K. Bansal on the same day at 9.35 A.M. Dr. Bansal found on his person the following injuries:-

* * * * All horizontal. All injuries were fresh and caused by sharp edged object. Injuries Nos. 1, 2 and 3 were kept under observation. Injuries Nos. 4 and 5 were simple.

The Investigating Officer after recording the statements of the two injured proceeded to the scene of occurrence. He arrested Aziz Ahmad Appellant near the shop of one Munnu who caters in Chat. When the Appellant was arrested he was wearing a Khaki shirt and a Khaki patloon which had blood stains on them. His blood stained clothes were taken into possession and their memo was prepared. The statement of Aziz Ahmad was recorded in which he stated that the knife which was used in the crime was washed by him and was hidden by him. The Appellant had also an injury in his finger at that time. He took the Appellant and witnesses towards his house from where the Appellant produced the knife, a Khukhri and two swords. All these articles were sealed in a bundle and their memorandum was prepared. Thereafter he inspected the scene of occurrence. He recovered blood stains on the Takhat and also blood on the floor. They were taken into possession and sealed and their memo was prepared. He also recovered blood from the ground under the Pakar tree. He took blood stained and unstained earth from there and sealed them separately. He found Kumari Anwar Sultana, daughter of Mustaq Hyder injured. However, since she was alone in the house she was not sent for medical examination by him. The recovered articles which were sealed and the Appellant Aziz Ahmad were taken to the Police Station where a further case under Arms Act (b) Arms Act was registered against him. The Investigating Officer had also prepared two site plans one related to the scene of occurrence and the other to the house of the Appellant from where the incriminating knife, Khukhri and swords were recovered.

Mustaq Hyder succumbed to his injuries at 12.20 P.M. on 19th September 1978 in the District Hospital Bareilly.

After receiving intimation of the death of Mustaq Hyder in the District Hospital, Bareilly the case was registered u/s 302 Indian Penal Code in addition to other sections under which the case was registered. The Investigating Officer thereafter proceeded to the Hospital where he prepared the diagrame of the dead body of Mustaq Hyder showing injuries in it and the inquest report. The body after being sealed was sent for autopsy.

The autopsy on the body of the deceased was performed by Dr. S.K. Khare on 19-9-1978 at 4.45 P.M. The following antemortem injuries were found on his person:-

* * * On internal examination intercostal space between 4th and 5th right back were cut. Right back upper pleura was cut. Middle lobe upper part and right lung were cut in size 2 cm x lobe deep. There was blood in its cavity. In the abdominal cavity two liters of blood was present. The liver was cut to the extent of 1.5 cm in its right lobe. The death, in the opinion of the doctor, was due to shock and haemorrhage as a result of these injuries.

On 20th September 1978 Sri Ved Prakash Singh, Inspector of Police, took up the investigation from Sri Ram Pal Singh. However, the case u/s 25(b) Arms Act was separated and Sri Ram Pal Singh continued it. Sri Ram Pal Singh submitted the chargesheet u/s 25(b) Arms Act against Aziz Ahmad on 26-9-1978. Sri Ved Prakash Singh after completing the investigation submitted the charge sheet against the Appellants.

Aziz Ahmad Appellant claimed that there was litigation between Rashiduddin and the deceased. Rashiduddin was inimical to him as he had appeared as a witness for the deceased against Rashiduddin. He claimed that on the date of occurrence at about 7.30 A.M. when he returned from his duty he found one man standing on the door with his face covered with Dhata. He took him (the Appellant) to be a police man. Thereafter he gave him a knife blow. When Aziz Ahmad Appellant entered the house he found that three persons were beating Mustaq Hyder and Afzal Hyder. Mustaq Hyder had asked the Appellant to call the Police force. A little later Rashiduddin arrived on the scene with a Sub-Inspector of Police and asked him to arrest the Appellant. Thereafter they obtained plain clothes from his house and took his uniform in their possession. Thereafter he was sent to jail. Appellant Mohammad Hanif also denied having committed the offence in question. He claimed that he was falsely implicated at the instance of Rashiduddin. He was not at his house at that time. He was a cleaner of a truck.

The prosecution in support of its case examined Afzal Hyder PW 1 and Kumari Anwar Sultana PW 2 among the injured. Both of them claimed to be the eye-witness to the occurrence. Jabbar Hussain PW 3 is the witness of arrest and the recovery of the incriminating articles, against Aziz Ahmad Appellant. Dr. A.K. Bansal PW 5 had examined the injuries of the two injured. Dr. S.K. Khare PW 7 had performed autopsy on the body of the deceased Mustaq Hyder. Sri Ram Pal Singh PW 6 is the Investigating Officer. PW 4 Sukhdeo Singh is the Headmoharrir who had received the written report of the case on 19-9-1978 and also the report lodged by Sri Ram Pal Singh Investigating Officer after arresting the Appellant Aziz Ahmad, On the same date besides these witnesses a couple of formal witnesses were also examined.

Appellant Aziz Ahmad examined DW 1 Dr. R.C. Srivastava to prove the injury received by him at the time of the occurrence. Appellant Mohammad Hanif examined DW 2 Sadeek Khan and DW 3 Jahid Khan to prove his alibi.

The learned Sessions Judge relied on the eye-witnesses account furnished by PW 1 Afzal Hyder and PW 2 Kumari Anwar Sultana and on the statement of the deceased Mustaq Hyder held to be admissible u/s 32(3) of the Indian Evidence Act and accordingly convicted the Appellants u/s 302 Indian Penal Code or u/s 302 read with Section 34 Indian Penal Code , u/s 307 Indian Penal Code and u/s 450 Indian Penal Code and sentenced them accordingly. He also found the case u/s 25(b) Arms Act established against Appellant Aziz Ahmad and convicted and sentenced him accordingly.

The resume of the prosecution case narrated above would show that we have the eye-witnesses account consisting of the statements of Afzal Hyder PW 1 and Kumari Anwar Sultana PW 2 who were both injured. The statement of Mustaq Hyder recorded by the Investigating Officer u/s 161 Code of Criminal Procedure and the evidence of the discovery of the knife used in the crime and the recovery of the Khukri and two swords. We will now propose to discuss them seriatum.

Afzal Hyder PW 1 claims that the Appellants who were real brothers are their tenants. They had, however, not paid the rent for about two years preceding the date of occurrence. The wall of the southern portion of that house had fallen down. The Appellants accused him and his father of demolishing that wall. The witness and the deceased, were demanding the arrears of rent. This led to the strained relations between them. The fact that the southern corner portion had fallen down had been found by the Investigating Officer Sri Rampal Singh PW 6 at the time of his visiting the scene of occurrence who had shown this fact in the site plan. The fact of the falling down of the wall and strained relations on that account also finds corroboration from the first information report lodged by this witness only half an hour after the occurrence. There is, therefore, no reason to disbelieve this witness that on account of non-payment of arrears of rent and on account of the Appellants accusing the witness and the deceased of demolishing the wall the relations between them had become highly strained. The defence of the Appellants that the relations were not strained, therefore, cannot be believed in the circumstances of the case.

Regarding the occurrence itself Afzal Hyder PW 1 states that at the time of the occurrence at about 8 A. M. he and his father Mustaq Hyder were sitting on the Takhat in the Sehan of their house. At that time the two Appellants came in the Sehan brandishing their knives. On seeing them coming in this way his younger brothers who were also present there ran outside the house raising an alarm. Aziz Ahmad Appellant caught hold of him by his collar and said, "Aaj Tujhe Deewar Khasana Va Makan Khali Karane Ka Maja Chakha Denge." At that time his sister Kumari Anwar Sultana PW 2 and her mother were also present there. Aziz Ahmad Appellant gave a knife blow in his back and Mohammad Hanif Appellant started giving knife blows to his father Mustaq Hyder when he raised an alarm. His mother and sister also raised an alarm. Thereafter Aziz Ahmad Appellant dragged him outside the house and brought him under the Pakar tree and gave him a number of knife blows. When Kumari Anwar Sultana PW 2 rushed to his rescue and tried to catch hold of the knife of Aziz Ahmad Appellant she also received knife injuries in her hand. Meanwhile the witnesses had also arrived and on seeing them the Appellants make their escape good. The witness asserted that he did not cause any injury to Aziz Ahmad Appellant. He denied the suggestion that a quarrel had taken place between him and his father on the one hand and the men sent by Rashiduddin on the other. He also denied the suggestion that in the quarrel between them and the men sent by Rashiduddin Aziz Ahmad tried to intervene by trying to save them and in the process he received the injuries. He further denied the suggestion that Aziz Ahmad Appellant was arrested when he himself went to lodge the report. He further denied the suggestion that Mohammad Hanif Appellant at the time of the occurrence was employed at Rampur. He has further asserted that the entire occurrence took place in 8 or 10 minutes and during that period Aziz Ahmad Appellant went on giving him knife blows. All the blows given by Aziz Ahmad struck him and Mohammad Hanif Appellant caused injuries to his father. In the first information report lodged by this witness it was not mentioned that his sister Kumari Anwar Sultana PW 2 had intervened and had received injuries. The witnesses explained this fact and has said that while he was on his way to the Police Station he dictated the report to a Hindi Typist. At that time he was carrying his father in the same rickshaw. His father had received serious injuries and he had succumbed to his injuries at 12-20 P. M. In such atmosphere of shock and nervousness with which he was affected he forgot to mention this fact in the first information report. The learned Counsel for the Appellants has drawn our attention to the fact that although Afzal Hyder and Mustaq Hyder were examined by Dr. A.K. Bansal on 19th September 1978 at 9.20 and 9.35 A.M. respectively but Kumari Anwar Sultana was medically examined by A.K. Bansal on 20th September 1978 at 10.45 A.M., that is more than 24 hours after the occurrence. It may be mentioned here that the Investigating Officer Sri Rampal Singh PW 6 had commenced the investigation at the Police Station immediately after the report was lodged. In the statement u/s 161 Code of Criminal Procedure Mustaq Hyder had stated that his daughter was also injured by Aziz Ahmad Appellant. Kumari Anwar Sultana PW 2 had stated that after the occurrence the Investigating Officer had come to her house and had recorded her statement at 9 or 10 A.M. She was alone in the house at that time as her mother had also gone to the Hospital. The reason for not getting Kumari Anwar Sultana examined on 19-9-1978 is, therefore, fully explained and so far as this case is concerned there can be no doubt that Kumari Anwar Sultana had also received the injuries found by Dr. A.K. Bansal PW 5 in Ex. Ka-12.

Kumari Anwar Sultana PW 2 fully supports the statement of Afzal Hyder PW 1. She claims that when her father Mustaq Hyder and brother Afzal Hyder PW 1 were sitting at the Takhat the two Appellants entered her house with knives in their hands. Her younger brothers ran out of the house raising an alarm. The Appellant Aziz Ahmad at that time was wearing Khaki clothes. Afzal Hyder PW 1 was caught hold of by Aziz Ahmad Appellant by his collar and was given a knife blow in his back and thereafter he was dragged outside the house. When her father raised an alarm Mohammad Hanif gave him a knife blow. His father fell down on the Takhat. Aziz Ahmad Appellant dragged out her brother Afzal Hyder outside the house and when he was dragging him under the Pakar tree she tried to intervene. She also received the knife blows. Her presence inside the house cannot be doubted. She is a young girl aged about 16 and her presence inside the house is very natural. She had also received the injuries. She appears to be a fully reliable witness. She has been subjected to cross-examination. We do not think that she was at all shaken in her statement.

The Investigating Officer Sri Ram Pal Sing PW 6 claims that he had found on inspecting the scene of occurrence blood on the Takhat and on the ground under it. He had taken the blood from those places in his possession. He prepared their memo. The fact that the Investigating Officer had also found blood near the Pakar tree is also shown in the site plan Ex. Ka-14 prepared by the Investigating Officer. There can therefore be no doubt about the fact that the injuries were caused to Mustaq Hyder deceased and Afzal Hyder PW 1 inside the house and outside the house Afzal Hyder had also received injuries under the Pakar tree.

PW 6 Ram Pal Singh, Investigating Officer, claims further that he had recorded the statement of Mustaq Hyder deceased u/s 161 Code of Criminal Procedure immediately after the report was lodged. He had come to the Police Station along with Afzal Hyder PW 1 the first informant. The statement runs as follows:-

Aaj 8 Baje Mere Ghar Men Ghus Kar Mere Larke Afzal Hyder Va Mujhe Chaku Se Aziz Ahmad Va Mohammad Hanif Putragarn Nazir Khan Ne Ghar Me Mara Va Bahar Mara Mere Chaku Hanif Ne Mara Va Mere Larke Ko Aziz Ne Mara. Meri Larki Ko Bhi Aziz Ne Mara. Mohalle Ke Hanif Va Ishrat Ali Va Wahid Va Inam Mian Aadi Logon Ne Hamen Bachaya Hamen Yeh Jan Se Mama Chahate They Mere Makan Me Kaee Varsha Se Bina Kiraya Diye Rah Rahe Hain. Barsat Men Diwar Gir Gayee Thee Isi Ranjish Ke Karan Inhone Hamen Mara Hai Aaj Iski Janch Mauke Par Kar Len Khoon Takhat Par Sahan Men Va Bahar Para Hai Hamen Jaldi Se Jaldi Aspatal Bhijavaya Jave.

The learned Counsel for the Appellant has contended that the statement recorded u/s 161 Code of Criminal Procedure cannot be used for any purpose on account of the prohibition contained in Section 162(1) Code of Criminal Procedure. However, this contention has no force as Sub-section (2) Sub-clause (ii) of Section 162 Code of Criminal Procedure prohibits the application of the prohibition u/s 162(1) to the statements, falling under Sub-section (1) of Section 32 of the India Evidence Act.

The learned Counsel for the Appellants has further pointed out that the learned Sessions Judge had observed that the dying declaration recorded u/s 161 Code of Criminal Procedure can form the sole basis for conviction. In support of his contention the learned Counsel for the Appellants has cited. Balak Ram Vs. State of U.P., . In that case it was observed by Chandrachud, J. (as then he was) that it is not prudent to base the conviction on the dying declaration made to an Investigating Officer. It was also pointed out that the Investigating Officer had not obtained the signatures of the deceased or at least the signatures of the large number of persons who had surrounded there. According to Article 250 of the Police Regulations it specially enjoins the Investigating Officer to record a dying declaration, if at all, in the presence of two-respectable witnesses and after obtaining the signature of thumb mark of the declarant. The Supreme Court in Munnu Raja and Another Vs. The State of Madhya Pradesh, again considered the admissibility and the evidentiary value that is to be attached to the statement recorded u/s 161 Code of Criminal Procedure by the Investigating Officer and subsequent to the recording of such statements the maker of those statements had succumbed to his injuries. Hon''ble Chandrachud, J. (as then he was) was also one of the Judges constituting the Bench and who had also delivered the judgment of that case observed: "It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated." However, regarding the statement recorded by the Investigating Officer, it was observed: "if the Investigating Officer thought that the declaration was in a precarious condition he ought to have requisitioned the services of a Magistrate for recording the dying declaration. The Investigating Officers are naturally interested in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged." We have considered the effect of both the Supreme Court cases cited above. It is not held in any one of them that the statement recorded by the Investigating Officer u/s 161 Code of Criminal Procedure is inadmissible in evidence. If the statement is recorded u/s 161 Code of Criminal Procedure then as a rule of caution or prudence the Court should not normally rely solely on the statement recorded u/s 161 Code of Criminal Procedure by the Investigating Officer. Such statements can be relied upon if their corroboration in material particulars is also found. The latter case, however, deprecates the tendency of the Investigating Officer himself to record the dying declaration without obtaining the services of the witnesses or the Magistrate if he could be available for recording such dying declaration. If it is a mere statement recorded u/s 161 Code of Criminal Procedure of a person who succumbs to his injuries later on the statement would be admissible in evidence but as a rule of prudence the Court would seek its corroboration from some independent source. So far as the instant case is concerned, the statement u/s 161 Code of Criminal Procedure of the deceased Mustaq Hyder is fully corroborated by the eye-witness account furnished by the two other injured of this case. It has been contended that none of the independent witnesses who had come on the scene were produced in eviderce. The Appellants and the deceased and the injured all live in the same locality. It is, therefore, not surprising that none of those witnesses came forward to support the prosecution case. We are not prepared to attach any importance to such a contention.

Sri Ram Pal Singh PW 6 has stated that after recording the statements of the injured Afzal Hyder and Mustaq Hyder he proceeded in search for the Appellants. He arrested Appellant Aziz Ahmad near the shop of Munna Chatwala at 9.15 AM. He was at that time wearing Khaki Shirt and a patloon. His clothes had blood stains on them. The arrest was made in the presence of Jabbar Hussain PW 3 and one Subhash. He took those blood stained clothes in his possession and prepared their memorandum. Thereafter he recorded the statement of Aziz Ahmad Appellant who was in his custody. In that statement the admissible part is:

Vah Chalkar Vah Chaku De Sakata Hai Jisse Usne Afzal Hyder Ke Choten Panhuchai Thi Aur Use Dhokar Chhupa Diya Hai.

Thereafter the Appellant took the police party to his house and brought out the knife from a Kandia in his house. That knife is Ex. 6. Besides this the Appellant Aziz Ahmad also handed over a Khukri and two swords Exs. 7 to 9 to the Investigating Officer. This statement is supported by Jabbar Hussain PW 3. Aziz Ahmad Appellant was put the question about the recovery of blood stained shirt and patloon from his possession at the time of his arrest. He denied the arrest near the shop of Munnu Chatwala and claimed that he was arrested at the Police Station. In view of the categorical evidence of the Investigating Officer Sri Ram Pal Singh PW 6 and PW 3 Jabbar Hussain we do not find any substance in his defence that he was arrested at the Police Station. He has not given any satisfactory explanation of his patloon and shirt being blood stained. The clothes admittedly were taken into possession by the Investigating Officer. These clothes were sent to the Chemical Examiner and the Serologist. The clothes of the deceased Mustaq Hyder and Afzal Hyder PW 1 were also taken into possession at the Police Station and sealed. They were also sent to the Chemical Examiner and the Serologist. The Chemical Examiner and the Serologist gave Nos. 1 and 2 to the clothes of Afzal Hyder and Nos. 8 and 9 to the shirt and patloon of the Appellant. The Chemical Examiner found them to be human blood and on grouping items 1 and 2 the clothes of Afzal Hyder PW 1 and items 8 and 9--the clothes of the Appellant were found to contain blood of Group B. Thus, the Chemical Examiner and Serologist''s report Ex. Ka-24 also corroborates the prosecution case.

So far as the blood stained knife discovery of which was made at the instance of the Appellant Aziz Ahmad is concerned, it was not found to contain blood stains. Unless the discovery of blood stains was made it cannot be held that there was any connection between the knife discovered and the crime committed in this case. It has, therefore, no evidentiary value.

The defence of the Appellant Aziz Ahmad is that there was litigation between Rashiduddin, a lawyer, and Mustaq Hyder deceased over the property. In that case he had appeared as a witness for Mustaq Hyder. Rashiduddin, therefore became inimical to him. When he returned from duty at 7.30 A.M. on the date of occurrence he found some person standing with his face covered with a Dhata. He took him to be a Police Officer. The Appellant was given a knife blow by him. Inside the house he saw three persons causing injuries to Mustaq Hyder and Afzal Hyder. He was asked by Mustaq Hyder to inform the Police but when he went to the Police Station Rashiduddin also reached there and after some talk with the Sub-Inspector by him he was placed under arrest. It is difficult to believe such defence. If Rashiduddin was instrumental in getting the deceased and Afzal Hyder stabbed by some other persons the deceased and Afzal Hyder would surely have accused Rashiduddin and his companions of committing the crime. They would not have, in the circumstances of the case, implicated the Appellant Aziz Ahmad. Moreover, the person or the persons in the position of the deceased and Afzal Hyder will not leave out the real assailants to implicate the innocent persons.

It has also been contended that according to the Investigating Officer at the time of the arrest the Appellant Aziz Ahmad had an incised wound and two abrasions which were also found by Dr. R.C. Srivastava DW I on his person who had examined him on 19-9-1978. The incised wound found by him was 2.5 cm x . 5 cm over middle portion of right middle finger palmer surface. And two abrasions one on the middle right index finger palmer side and the other over left cheek. Duration of these injuries is mentioned one to two days. If these injuries were received by Aziz Ahmad Appellant at the time of the occurrence then they could not be one or two days old but they too ought to have been only half a day old. K is no doubt true that Dr. R.G. Srivastava has stated that these injuries could be received at about 8 A.M. on 19-9-1978. We are some what different to accept the statement of Dr. R.C. Srivastava as in his estimate there could be a margin of difference of a few hours on either side but it could not be of twelve hours or one and a half days as the duration given by him 1 to 2 days.

It is, therefore, not improbable that the injuries received by the Appellant Aziz Ahmad were not received by him at the time of the occurrence. Even if we assume that the injuries of Aziz Ahmad Appellant was received by him at the time of the occurrence the incised wound was received by him in the middle of his middle finger palmer surface. Such injury could not be received by him at the time of his causing injuries to Afzal Hyder. Moreover, it is not claimed that Aziz Ahmad received any injury at the hand of either Anwar Sultana or Aziz Ahmad. Thus, we do not find any substance in the defence case of Aziz Ahmad Appellant.

Mohammad Hanif Appellant claimed that on the date of the occurrence he was not at his house. He is a cleaner of a truck; he was there and was not present on the scene of occurrence on the date when the occurrence took place. In support of his alibi he has examined DW 2 Sadeek Khan. He has stated that Mohammad Hanif Appellant was employed by him as his cleaner of his truck No. USI 1718 on a monthly pay of Rs. 150. He worked with him from: 1-8-76 to April 1979. He also produced the daily diary maintained by him and claimed that on 19th and 20th August 1978 the Appellant was on duty with him in the truck. Bareilly and Rampur are adjoining. A truck does not remain stationery at one place. It moves from town to town with the goods it carries. In these circumstances it is difficult to believe that about one and a half years after the occurrence it would be possible for a truck owner to remember if his driver was present at his house in the morning. Thus, much importance cannot be attached to the plea of alibi of Mohammad Hanif Appellant The statement of DW 3 Jahid Khan, who stated about the place of arrest of Mohammad Hanif. He stated that he was arrested from Rampur and not from Bareilly. We do not think that his statement is at all helpful in support of the plea of alibi raised by Mohammad Hanif Appellant. We are, therefore, of the opinion that the prosecution has fully succeeded in establishing its case against both the Appellants, that is Aziz Ahmad Appellant to have caused injuries to Afzal Hyder and Mohammad Hanif Appellant having caused injuries to Mustaq Hyder who succumbed to his injuries on the same day.

From the facts established above, it appears that both the Appellants had come to the house of Mustaq Hyder to cause the death of Afzal Hyder. Aziz Ahmad Appellant had caught hold of Afzal Hyder. When Mustaq Hyder raised an alarm on his son being caught by Aziz Ahmad Appellant only then Mohammad Hanif Appellant gave several knife blows to Mustaq Hyder. Aziz Ahmad Appellant had dragged and caught hold of Afzal Hyder and had given him a knife blow at his back inside the house and dragged him outside the house and gave several knife injuries to him under the Pakar tree outside the house. These facts go to show that the Appellants had not come with the intention of causing injuries to Mustaq Hyder who was an old man aged about 65. He was caused injuries only when he raised an alarm. Thus it is obvious that Aziz Ahmad Appellant did not share the intention of Mohammad Hanif in committing the murder of Mustaq Hyder. Aziz Ahmad would, therefore, be responsible for the act of causing injuries to Afzal Hyder alone who was intended to be killed by both the Appellants. Injuries Nos. 1, 2 and 3 of Afzal Hyder, according to the medical evidence of Dr. A.K. Bansal PW 5, were dangerous to life. Aziz Ahmad was, therefore, rightly found guilty of offence u/s 307 Indian Penal Code simpliciter, Mohammad Hanif Appellant shared his common intention. He would also be guilty of offence u/s 307 read with Section 34 Indian Penal Code . The Appellants were rightly found guilty of offence u/s 450 Indian Penal Code .

Sri Ram Pal Singh PW 6 has stated that after arresting the Appellant Aziz Ahmad the Appellant had made a statement which led to the discovery of a knife from his house and also recovery of a Khukri and two swords from his house. The evidence of recovery of the Khukri and the swords is also supported by the statement of Jabbar Hussain PW 3. The possession of these articles u/s 25(b) Arms Act read with the Notification No 7472-R/VIII-B-11-372-60 dated September 20, 1967 in respect of swords, spears, spear heads, ballams, kantas, karaulis, daggers, pharsas, bhujalis, bayonets, knives with blades longer than 10.16 cm is an offence. The learned Counsel for the Appellants has pointed out that the recoveries in this case were made by Sri Rampal Singh PW 6 himself and he had himself submitted the charge-sheet against Aziz Ahmad Appellant u/s 25(b) Arms Act while the charge-sheet under other Sections were later on submitted by the Inspector of Police Sri Ved Prakash Singh who had taken over the investigation from Sri Rampal Singh in respect of those offences on 20-9-1978. The learned Counsel for the Appellants in support of his contention has cited 1980 AWC 197--Pir Bux v. State--1980 AWC 197 in which it was held that the purpose of investigation is to find out the truth of the allegations of the prosecution version. Therefore, a person, who is an eye-witness himself, cannot be the Investigating Officer. If a Police Officer who is not an eye-witness, is made Investigating Officer, there is some assurance that the prosecution witnesses had given out a correct version of the occurrence at the earliest opportunity. If a Police Officer is an eye-witness and becomes Investigating Officer then there is no assurance that what the eyewitnesses have stated was true. In such cases the accused persons are highly prejudiced They cannot make use of the provisions of Section 161 Code of Criminal Procedure. So far as this proposition is concerned it was rightly laid down in the circumstances of that case. We sitting in the law courts have generally deprecated such tendency on the part of the Investigating Officers as they themselves are interested in the successful prosecution of the case. We, therefore, attach great importance to the impartial investigation in the case. However, the circumstances of the instant case are somewhat different and the above proposition would not apply to the facts of the instant case. In the instant case a murder case was being investigated by Sri Ram Pal Singh PW 6 and in the course of the investigation he had made recoveries of the incriminating articles in question in the presence of the witness whose statements were also recorded in the course of that investigation. Thereafter so far as the offence u/s 25(b) Arms Act is concerned there was nothing left except to submit the charge sheet which was submitted by him on the 26th September 1978. Thus the mere submission of the charge-sheet in the instant case by Sri Ram pal Singh PW 6 in any way does not prejudice the accused in this case. We, therefore, do not attach any importance to it. The case against Aziz Ahmad Appellant u/s 25(b) Arms Act is fully established.

As a result of the above findings, appeallant Aziz Ahmad is guilty of offences u/s 307 Indian Penal Code simpliciter, Section 450 Indian Penal Code and u/s 25(b) Arms Act, Mohammad Hanif Appellant is guilty of offences u/s 302 Indian Penal Code, 307 read with Section 34 Indian Penal Code and Section 450 Indian Penal Code . The sentences imposed under the above sections against the two Appellants were, in our opinion, fully merited and do not call for any interference.

The appeal on behalf of Mohammad Hanif Appellant is hereby dismissed. His conviction under Sections 302 Indian Penal Code simpliciter and the sentence of imprisonment for life imposed against him is maintained. His conviction u/s 307 read with Section 34 Indian Penal Code and u/s 450 and sentences respectively of five years and six years'' rigorous imprisonment imposed thereunder are maintained. All sentences are to run concurrently. The appeal on behalf of Aziz Ahmad Appellant is partly allowed. His conviction u/s 302 read with Section 34 Indian Penal Code and the sentence imposed thereunder are hereby set aside. His conviction u/s 307 Indian Penal Code simpliciter, Section 450 Indian Penal Code and u/s 25(b) Arms Act and the sentences respectively of five years, six years and six months rigorous imprisonment imposed against him thereunder are hereby maintained. All sentences shall run concurrently. Mohammad Hanif Appellant was released on parole by the order of this Court dated 24th July 1981 for a period of two months. If he has not surrendered already he shall be taken into custody to serve out the unexpired sentences as maintained by this Court. Aziz Ahmad Appellant is already in jail. He shall continue to remain in jail to serve out the unexpired portion of his sentences as maintained by this Court.

Ordered accordingly.