Malkhan (In Jail) vs State of U.P.

M.C. Jain, J.—This appeal is directed by the Appellant Malkhan against the judgment and order dated 15th of September, 1980 passed by Sri Y. P. Singh, the then Ist Additional Sessions Judge, Budaun in Sessions Trial No. 135 of 1979. He has been convicted u/s 364, I.P.C. and 302, I.P.C. Ten years'' rigorous imprisonment has been awarded u/s 364, I.P.C. and life imprisonment u/s 302 I.P.C. Both the sentences have been ordered to run concurrently.

The prosecution case was that Babu Ram (deceased) was a rickshaw puller and the accused-Appellant was also doing the same job. On 9th February, 1979 the deceased went from his house as usual with his rickshaw. He did not return in the evening. Therefore, his father P.W. 1 Narain made a search for him. The rickshaw of the deceased was found parked in the verandah of Primary School in Mohalla No. 3 of Bilsi, but the whereabouts of the deceased were not known. His father continued his search the next day also and was told by Badri, Nausey and Nanhe that on the previous day, they had seen Babu Ram with Malkhan accused-Appellant ; that Babu Ram was demanding his watch from the accused-Appellant and some quarrel was going on between them ; that they had even asked the two the cause of the quarrel but to no effect and the two had gone away quarreling. P.W. 1 Narain then went to the Police Station and lodged the report by oral narration at 8.20 p.m. A case u/s 364, I.P.C. was initially registered and P.W. 10 S. I. Gopal Das started the investigation. On 11th February, 1979, the Investigating Officer was informed by an informer that the accused-Appellant could be found at the Idgah between Bilsi and Agoli. He went there with the witnesses at about 6 or 6.30 a.m. and arrested him. At his instance, he recovered the wrist watch of the deceased from P.W. 5 Chhuttan with whom he (accused-Appellant) had pawned the same. The dead body of the deceased had also been received at his pointing in the jungle of Sirasaul. A muffler had been found tied around the neck of the deceased. After completion of necessary formalities, the dead body was sent for post-mortem which was conducted on 12th February, 1979 at 1.15 p.m. by P.W. 4 Dr. Hamidullah. The deceased was aged about 18 years and about 2days had passed since he died. The following two ante-mortem injuries were found on his person.

Lacerated wound 3 cm. x 1 cm. x cavity deep on right eye socket. Right eye was missing.

Circular ligature mark all around the neck, measuring 3.5 cm. x 29 cm. with 2 abrasions in front of neck in the middle in the area of 2 cm. x 1 cm. Subcutaneous tissues below injury No. 2 congested. Hyoid bone fractured, trachea congested, contained frothy mucus.

The death had occurred due to asphyxia (strangulation). On conclusion of the investigation, a charge-sheet was laid against the accused-Appellant.

The accused pleaded not guilty. According to him, he did not know if the deceased plied rickshaw. He also denied the recovery of wrist watch of the deceased at his pointing as also the recovery of his dead body at his pointing. He took the defence that he had been falsely implicated as he was not allowing the witnesses to sit in his rickshaw free of cost.

The prosecution examined ten witnesses. P.W. 1 Narain was the father of the deceased. P.W. 2 Badri and P.W. 3 Nanhe were the witnesses of having last seen the deceased in the company of the accused-Appellant. P.W. 4 Dr. Hamidullah had performed the autopsy on the dead body of the deceased. P.W. 5 Chhuttan was the person with whom the deceased had pawned the wrist watch of the deceased. P.W. 6 Constable Milap Singh had taken the dead body of the deceased for post-mortem. P.W. 7 Jamshed Ali proved the sale of wrist watch to P.W. 8 Ram Saroop to whose sister''s daughter the deceased had been married. P.W. 8 Ram Saroop had given the said wrist watch as a present at the time of marriage. P.W. 9 Kishan Chandra was a witness of recovery of watch and the dead body of the deceased at the instance of the accused-Appellant and P.W. 10 SI Gopal Das was the Investigating Officer.

The accused did not produce any evidence in defence.

At the hearing of the appeal, none turned up from the side of the accused-Appellant to argue it out though he is represented on record by Pt. Mohan Chand, Advocate. We heard learned A.G.A. on behalf of the State and ourselves examined the record of the lower court containing the evidence and other material.

True, this is a case of circumstantial nature but we find that the link or chain of the circumstances is complete excluding every hypothesis excepting that it was the accused-Appellant who committed this crime. To begin with, there were as many as two witnesses namely, P.W. 2 Badri and P.W. 3 Nanhey who had last seen the deceased in the company of the accused-Appellant when the two were quarrelling and the deceased was demanding his wrist watch from the accused-Appellant. Both of these witnesses have stated that the accused-Appellant had asked the deceased to accompany him to get his wrist watch and both of them had left towards Raipur. They had so last seen the deceased in the company of the accused-Appellant at about 5 p.m. on the next day of which they had spoken about this factum to the father of the deceased. It would be recalled that in the first information report lodged by the deceased''s father on oral narration on 10th February, 1979, he had stated that these two witnesses (and one Naushey) had told him that the deceased and the accused-Appellant were quarrelling the previous day and the deceased was demanding his wrist watch from the accused-Appellant. This is the first chain of circumstances established by the prosecution against the accused-Appellant who has not been able to assign any reason against the said witnesses for falsely deposing against him.

The second link is the recovery of the wrist watch of the deceased at the pointing of the accused-Appellant from P.W. 5 Chhuttan to whom he had pawned it for Rs. 30. It had been so pawned by him with him a day before the recovery was made by the Investigating Officer at his instance. The accused-Appellant could not assign any reason for false implication against this witness either. This wrist watch Ex. 1 was the same which had been purchased by P.W. 8 Ram Saroop-maternal uncle of the wife of the deceased and had presented him in his marriage. The sale and purchase of the said watch stood proved by the testimony of P.W. 7 Jamshed Ali, watch seller and P.W. 8 Ram Saroop purchaser.

The third link is the recovery of the dead body of the deceased at the instance of the accused-Appellant. P.W. 9 Kishan Chandra is the witness of the recovery of the wrist watch and the dead body of the deceased at the instance of the accused-Appellant. It would be recalled that the statement of P.W. 5 Chhuttan is also there that it was the accused-Appellant who had pawned the watch in question to him (a day before the same was recovered) by the Investigating Officer from him with whom the accused-Appellant had come to his shop. The accused-Appellant could not show that either of P.W. 2 Badri, P.W. 3 Nanhey, P.W. 5 Chhuttan or P.W. 9 Kishan Chandra had any enmity with him. His defence put forth in his statement u/s 313, Cr. P.C. could not be accepted that the witnesses were speaking falsely against him because he did not use to carry them in his rickshaw without fare. It may also be mentioned that the deceased belonged to a very low strata of society begin a rickshaw puller and his father P.W. 1 Narain could not at all be in a position to influence the Investigating Officer to cook up a false case against the accused-Appellant. The accused-Appellant could not impute any motive against the Investigating Officer either for his false implication. Rather we are of the opinion that the Investigating Officer P.W. 10 SI Gopal Das acted with requisite swiftness and successfully worked out this crime. It is obvious that after a brief quarrel on 9th February, 1979 at about 5 p.m. the accused-Appellant coaxed the deceased to accompany him on the pretext of making over his wrist watch to him, but taking him unawares strangulated him with muffler and abandoned his dead body wherefrom he got it recovered to the Investigating Officer on 11th February, 1979. It has come in the testimony of P.W. 4 Dr. Hamidullah that a single man could strangulate the other provided the attack was made unawares. This is what had happened in the present case.

So, on taking a holistic view on judicial appreciation of the evidence on record, we find ourselves in complete agreement with the finding of guilt recorded by the learned Additional Sessions Judge against the accused-Appellant. The chain of circumstantial evidence was complete leading to the only conclusion that the culprit was the present accused-Appellant and no one else. To recapitulate, the circumstances clinchingly proved by the prosecution for establishing the guilt of the accused-Appellant that there was a quarrel between the accused-Appellant and deceased on 9th February, 1979 at about 5 p.m. over the wrist watch of the latter which he was demanding from the former ; that they had both left towards Raipur from which side the dead body of the deceased was ultimately recovered at the instance of the accused-Appellant ; that the accused-Appellant had after committing the murder of the deceased pawned his wrist watch with P.W. 5 Chhuttan and he got recovered the same to the Investigating Officer; that a muffler was found wrapped around the neck of the deceased wherewith he had been strangulated by taking him unawares. There was also a plausible reason as to why the deceased accompanied the Appellant after a brief quarrel on 9th February 1979. The reason was that the accused-Appellant had made him to go with him on the pretext that he would return his wrist watch.

In view of the above discussion, we do not find any merit in this appeal and we hereby dismiss it. The accused-Appellant shall undergo ten years rigorous imprisonment u/s 364, I.P.C. and life imprisonment u/s 302, I.P.C. as awarded to him by the judgment under appeal. Both the sentences shall run concurrently. The Appellant is on bail. His bail is cancelled. The Chief Judicial Magistrate, Budaun is directed to get the accused-Appellant arrested and to commit him to prison to serve out the sentences awarded.

Let a copy of this judgment along with record of the case be immediately sent to the Court below for needful compliance under intimation to this Court within two months positively.