Nizam-ud-Din and Others vs State

J.N. Wazir, C.J.—These are two separate appeals, one by Moh'd Yusaf and the other by Nizam - ud - Din, Mehanda alias Moh'd Khan

and Saida against their convictions under Sections 302 and 201 R.P.C. and the sentences passed thereunder by the Additional Sessions Judge of

Poonch. The accused were put on trial for the murder of Khadaim Hussain, Forest Guard on 5th Chet 2018 corresponding to 18-3-1962 and for

causing the evidence of the commission of that offence to disappear. The accused denied the charges and pleaded not guilty. After considering the

evidence the learned Additional Sessions Judge convicted Moh'd Yusaf accused u/s 302, R.P.C. and sentenced him to death and a fine of Rs.

200/ -. He was also convicted u/s 201, R.P.C. and sentenced to undergo two years' rigorous imprisonment. The other accused were convicted u/s

302, R.P.C. and sentenced to imprisonment for life and a fine of Rs. 200/ - each. They were also convicted u/s 201 R.P.C. and sentenced to two

years' rigorous imprisonment each. The sentences of imprisonment were ordered to run concurrently,

Briefly put the story for the prosecution is as follows:

Khadim Hussain deceased was the sister's son of Moh'd Yusaf accused. He was married about two years before the date of occurrence to one

Gul Begum, daughter of Zahur Hussain. The deceased was very friendly with his maternal uncle and used to visit his place frequently. He

developed illegal intimacy with Amrit Bano daughter of his maternal uncle. Moh'd Yusaf was a poor man and did not do any work for his living

except that he dispensed some medicines and practised sorcery. He had some disciples who used to learn the art of sorcery from him. Moh'd

Shafi, approver, Nizam - ud - Din, Saida and Mehanda accused were learning sorcery from Moh'd Yusaf accused. It is alleged that Moh'd Yusaf

felt insulted on hearing about the illicit relations which developed between the deceased and his daughter. Moh'd Yusaf had already borrowed Rs.

500/ - from the deceased which he had not paid to him in spite of his demands. He had promised the deceased that he would get his daughter

divorced from her husband and give her in marriage to the deceased.

It is alleged that on 5th Chet, 2018 corresponding to 18th of March, 1962 the deceased visited the house of his maternal uncle, Moh'd Yusaf, and

demanded Rs. 500/ - from him. Moh'd Yusaf accused promised to pay him the amount on the following day. The accused had approached Moh'd

Shafi approver to assist him in murdering Khadim Hussain and had promised to pay him Rs. 50/ - for it. Moh'd Shafi had first refused but later

when he was again asked by Mohd. Yusaf in presence of Nizam - ud - Din to help him to murder the deceased he agreed to do so. Both Moh'd

Shafi and Nizam - ud - Din came on the; fateful night to the house of Moh'd Yusaf and they were followed by Mehanda and Saida the other

disciples of Moh'd Yusaf accused.

On behalf of the prosecution it is further alleged that Moh'd Yusaf handed over a rope to Nizam - ud - Din and asked him to put it round the neck

of the deceased who was lying asleep on a cot in Yusaf's house but he did not succeed. Then Moh'd Yusaf himself put the rope round Khadim

Hussain's neck. Mehanda accused caught hold of the deceased by his arms and Saida caught his legs. Moh'd Yusaf accused caught hold of

Khadim by his genitals. The rope was pulled by Nizam - ud - Din and Moh'd Shafi approver from both ends and Khadim Hussain was strangled

to death. His body was taken out of the house and dragged from there to Yusaf's field where it was buried. Zahur father of the deceased and

Talab Din his brother went out in search of the deaceased and came to the house of Moh'd Yusaf accused. They enquired from him but got no

information about the deceased.

Zahur Din made an application to the Superintendent of Police at Poonch on 20th March 1962 about his missing son. The Superintendent of Police

endorsed the application to the D.S.P. Rajouri who forwarded the same to Police Post, Thana, where constable Ghulam Nabi was deputed to

search and trace the deceased. Ghulam Nabi went to Moh'd Yusaf s house and contacted his wife Abdul Bano and his daughter, Amrit Bano from

whom he got some clue about the commission of the offence. Nizam - ud - Din and Moh'd Shafi accused were sent for and at the instance of

Nizam - ud - Din the dead body of the deceased was discovered lying buried in the field of Moh'd Yusaf accused. Saida and Mehanda were also

arrested and at the instance of Mehanda shoes of the deceased were recovered a blanket and a towel belonging to the deceased were recovered

from the house of Moh'd Yusaf accused. The dead body was sent to the Hospital at Rajouri where Dr. Hans Raj Gupta performed the post

mortem examination on 25-3-1962 and the following injuries were found on the body of the deceased:

I. Bleeding from both the nostrils and fluid blood was still bleeding.

Bloody matter over tongue and teeth.

Plura was adherent with chest wall over left lung.

Petechial haemorrhages and Ecchymosis over an area 3"" x 11/2"" on lateral and diaphragmatic surface of right lower lobe of lung.

Fluid blood about 11/2 pint in peritoneal cavity clotted blood in Mesentry.

Five transverse irregular ruptures varying from 2"" to 4"" on anterior and inferior surface of right lobe of liver.

Rupture of upper Pole of Right Kidney with clotted blood in the substance and in the perinephritic tissue.

Contused wound 11/2"" x 1/2"" on back of left side of occipit cum depression, depressing of bones underneath.

Contused wound 2"" x 1"" on left parietal being 3"" from ear.

Commuted fracture into several parts of left temporal, left parietal, left part of occipital bones extending into middle and posterior cranial fossa

with extra dural and sub dural haemorrhages (clotted blood) on left cerebral hemisphere sub dural haemorrhage (clotted blood) on right cerebral

hemisphere from which brain matter was coming out.

4"" x 1/2"" abrasion underneath left ramus of mandible.

Multiple abrasions varying from 1/2"" x 1/2"" to 1"" x 1/2"" on left cheek, left temporal region, left side of neck, behind and below left ear.

Depressed mark 31/2"" x 1/2"" with abraded surface on right side of neck, 1"" above thyroid cartilages and below right Ramus Mandible.

(4) Dissection did not reveal any haemorrhage underneath, nor Hyoid bone found fractured.

Parchment like abrasions 1"" x 1/2"", 11/2"" x 1"", 1/2"" x 1/2"" on front of larynx.

Parchment abrasions 2"" x 2"" on top of right shoulder.

Parchment abrasions 1"" x 1/2"" each of lateral sides of right and left fore - arms and right knee.

The doctor opined that the cause of death was due to fracture of skull with brain haemorrhage, rupture of liver, rupture of right kidney and

asphyxia due to violence. The doctor added that because of petechial haemorrhage and ecchymosis of right lower lobe of lung and multiple

abrasions on left side of neck behind and below left ear, left cheek, left temporal region, and on front of larynx he was of opinion that throttling had

also been adopted which caused asphyxia. According to the doctor all these injuries were ante mortem.

Moh'd Shafi was tendered pardon and was made an approver. The accused Moh'd Yusuf, Nizamu - ud - Din, Mehanda and Saida were

R.P.C. and sentenced as stated above.

In order to prove this case the prosecution has examined a number of witnesses, among whom Mst. Abdul Bano the wife of Moh'd Yusaf

accused and his daughter, Amrit Bano, claim to be the eye witnesses of the occurrence. Before dealing with their evidence it is necessary to

mention in detail the statement made by the approver. According to the approver Moh'd Yusaf accused is his uncle. He used to teach him charms

and spells. The approver stated that one day Moh'd. Yusuf came to his house and told him that Khadim Hussain had developed illicit intimacy with

his daughter, Amrit Bano and that for that reason he wanted to murder him. He promised to pay the approver Rs. 50/ - and asked him for help.

The approver stated that he refused to accede to his request. The accused Moh'd Yusaf again came to his house and repeated his offer but then

also the approver did not accede to his request. Five or seven days after, Moh'd Yusaf again came to the approver's house but he did not find him

there. He then went to Nizamud - Din's house and found the approver sitting there. According to the approver Moh'd Yusaf accused asked Nizam

- ud - Din to help him in murdering Khadim Hussain. Nizam - ud - Din agreed to do so and the approver also agreed to the proposal. They were

asked by Moh'd Yusaf to come to his house during the night. They went there at night and saw Khadim Hussain sleeping on a cot. Abdul Bano,

wife of Moh'd Yusaf and his daughter, Amrit Bano were sleeping on Anr. cot on one side.

The approver further stated that Mehanda and Saida also reached on the spot. Moh'd Yusaf accused handed over a piece of rope to Nizam - ud -

Din. Nizam - ud - Din tried to put the rope round the deceased's neck but he did not succeed. Moh'd Yusaf then himself placed the rope round the

neck of Khadim Hussain and tied that into a loose knot. He placed one end of the rope in the approver's hand and the other end he gave to Nizam

- ud - Din. Moh'd Yusaf caught hold of the accused by his genitals, Mehanda caught hold of his legs and Saida his arms. The approver stated that

he and Nizam - ud - Din pulled the rope at both ends and strangulated the deceased. Mehanda gave two or three kicks on the deceased's

abdomen and so did Saida. Abdul Bano, wife of Moh'd Yusaf accused, protested as to why this heinous offence was being perpetrated but Moh'd

Yusaf accused told her that if she made any noise she would meet the same fate. At this she kept quiet.

The body of Khadim Hussain was taken out of the house and from there it was dragged to the place where it was buried. The approver further

stated that Moh'd Yusaf noticed that the deceased was still breathing and took up a stone with which he pounded his head and the dead body was

put into a ditch. Moh'd Yusaf next went to his house and got two shovels and a spade. He gave one shovel to the approver and the other he kept

to himself. Some earth was dug and put on the corpse in order to bury it completely. The approver stated that having buried the dead body of

Khadim Hussain they all left the place. Money was demanded by the approver from Moh'd Yusaf but he told him that he had no money and that

he would pay him next day. Mehanda was given a pair of shoes belonging to the deceased. The approver and Nizam - ud - Din then returned to

their home. The approver admitted that he was learning the art of Jantar Mantar from Moh'd Yusaf accused and so was Nizam - ud - Din. This is

the statement of the ap prover.

Mst. Abdul Bano and Amrit Bano gave full details of the occurrence before the Committing Magistrate. They deposed that the accused Moh'd

Yusaf did not do anything special for his living but used to practise the art of sorcery and also dispensed medicines. Khadim Hussain visited their

house frequently and developed intimacy with Amrit Bano. He had advanced Rs. 500/ - to Moh'd Yusaf and demanded that money from him.

Moh'd Yusaf had promised to obtain divorce of his daughter Amrit Bano from her husband and give her in marriage to Khadim Hussain deceased.

On the fateful night Khadim Hussain was sleeping on a cot in their house. Moh'd Shafi and Nizam - ud - Din came to the house and they were

followed by Meranda and Saida. According to the eye witnesses Moh'd Yusaf handed over a piece of rope to Nizam - ud - Din and asked him to

tie the same round the neck of Khadim Hussain. He could not do it and then Moh'd Yusaf himself tied it round Khadim Hussain's neck. Nizam -

ud - Din and Moh'd Shafi pulled the rope at both ends. Saida caught hold of the arms of the deceased and Mehanda his legs. Moh'd Yusaf caught

hold of the genitals of the deceased. That is how the deceased was murdered by all the accused. The dead body was taken out of the house. Mst.

Abdul Bano stated that she told her husband as to why he was perpetrating this heinous crime. She was threatened by him that she also will be

killed if she made a noise and therefore she kept quiet.

Ghulam Nabi constable arrived on the scene after a few days and she narrated the whole story to him. But both these witnesses resiled from their

previous statements in the Sessions Court. They stated before the Sessions Court that they did not know anything about the occurrence and

pleaded complete ignorance. It was further stated by them that the statements which they made before the Tehsildar Magistrate u/s 164, Code of

Criminal Procedure and before the Committing Court were due to police pressure and torture. The learned Additional Sessions Judge has

remarked that on account of near relationship with Moh'd Yusaf accused these witnesses were trying to favour him by resiling from their previous

statements; therefore, u/s 288, Code of Criminal Procedure he has transferred the previous depositions of Abdul Bano and Amrit Bano to the

Sessions file in order to use them as evidence against the accused. If we take these statements of the eye witnesses to be correct there is

independent evidence connecting all the accused with the commission of the crime. These statements fully corroborate the evidence of the

approver. But the learned Counsel for the Appellants has argued that the statements made by Abdul Bano and Amrit Bano before the Committing

Magistrate should not be relied upon as they were made under police pressure and coercion. These witnesses have completely denied any

knowledge of the commission of the offence by the accused before the Sessions Court. From the evidence of Mohammad Bashir prosecution

witness it appears that these witnesses were kept in his house for 7 days when the police was there and they were given beating. In the Sessions

Court Moh'd Bashir denied that beating was administered to these eye witnesses. But when he was confronted with his previous statement made

before the Committing Court in which he deposed that police gave some beating to the eye witnesses, he stated, that when he made the statement

before the Committing Court his mind was disturbed on account of the demise of his son. Moh'd Bashir has not denied having made the statement

before the Committing Magistrate that beating was given to the eye witnesses by the police. Under these circumstances much reliance cannot be

placed on the statements of the eye witnesses Abdul Bano and Amrit Bano made by them before the Committing Court which were transferred to

the file of the Sessions Court u/s 288, Code of Criminal Procedure.

Before the Sessions Court, as pointed out above, they have completely denied any knowledge of the occurrence. If we discard the testimony of

these two witnesses we are left with the statement of the approver alone. An accomplice is competent witness and conviction can rest on his

testimony but the Courts will rely on such testimony only if they are satisfied in regard to its truthfulness. The learned Counsel for the Appellants

argued that the evidence of the approver is not fully corroborated and, therefore is not worthy of credence. We do not agree with this contention.

It is not necessary to seek corroboration in regard to every minor detail appearing in the statement of the approver. In Rameshwar Vs. The State

of Rajasthan, their Lordships of the Supreme Court have laid down:

It would be impossible, indeed it would be dangerous, to formulate the kind of evidence which should, or would, be regarded as corroboration. Its

nature and extent must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence

charged. But to this extent the rules are clear:

It is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the

case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction. All that is required is that

there must be some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe

to act upon it.

The independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend

to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed

the crime.

The corroboration must come from in dependent sources and thus ordinarily the testimony of one accomplice would not be sufficient to

corroborate that of Anr. .

The corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his

connection with the crime.

The approver stated that the body of Khadim Hussain was taken to Moh'd Yusaf s field and was buried there by the accused. We have it from the

evidence of the prosecution witnesses Talab Din, Zahur Din, Saif Ali and Dost Moh'd that the dead body of the deceased was recover ed at the

instance of Nizam - ud - Din from the field of Mob'd Yusaf. The approver mentioned in his statement that Nizam - ud - Din took part in the

commission of the offence and accompanied the dead body to the place where it was buried. This part of the statement of the approver connecting

Nizam - ud - Din accused with the commission of the crime is fully corroborated by the recovery of the body of the deceased at the instance of

Nizam - ud - Din accused. The shoes of the deceased, Ex. P.F., were recovered at the instance of Mehanda accused, as is clear from the

evidence of Talab Din, Saif Ali, Munshi, Faiz Moh'd and Gian Singh, prosecution witnesses. The approver stated that Moh'd Yusaf accused gave

shoes of the deceased to Mehanda accused. The shoes recovered from Mehanda were identified by Guj Begum to be belonging to the deceased.

The approver's statement therefore connecting Mehanda with the commission of the crime is fully corroborated by the recovery of shoes at the

instance of Mehanda. We have, therefore, no hesitation in holding that Mehanda also took part in the murder of Khadim Hussain deceased. As

regards Moh'd Yusaf accused the approver has stated that Moh'd Yusaf came to his house and asked him to help him in murdering Khadim

Hussain and that he will pay him Rs. 50/ - as his remuneration. The approver did not accede to is request. Two or three days after Moh'd Yusaf

again came to his house and repeated the request which was turned down by the approver. Again after a few days Moh'd Yusaf called at the

approver's house but as he was not there he went to Nizam - ud - Din's house and requested him as well as the approver who happened to be

there to help him in murdering Khadim Hussain. The approver deposed that he and Nizam - ud - Din agreed to do so. They went to Moh'd

Yusaf's house in the evening and perpetrated the atrocious crime. After murdering Khadim Hussain, Moh'd Yusaf and other accused persons took

his body into the field and buried it. The approver has stated that a blanket and a towel were lying under the head of the deceased at the time when

he was strangulated. The same blanket and the towel which were identified by the approver to be belonging to the deceased and which were under

his head at the time of the commission of the crime were recovered from the house of Moh'd Yusaf. The prosecution has adduced evidence to

show that the blanket and the towel belonged to Khadim Hussain deceased.

Gul Begum, the wife of the deceased identified these articles as belonging to the deceased. The dead body was recovered from a field and there is

evidence of Abdul Bano and Amrit Bano to show that the field belonged to Moh'd Yusaf accused. The fact that the blanket and the towel which

were lying under the head of the deceased at the time of his murder were recovered from Moh'd Yusaf's house and also the fact that the body of

the deceased was recovered from his field are sufficient corroboration of the statement of the approver connecting Moh'd Yusaf accused with the

commission of the crime. Dil Pazir and Wazir Mah'd, prosecution witnesses, have been produced to prove extra - judicial confession alleged to

have been made by Moh'd Yusaf accused before them. According to Dil Pazir, Moh'd Yusaf came to the house of Wazir Moh'd and asked for

some food. The witness was also there and he enquired from the accused about the murder of Khadim Hussain. It is stated by the witness that

Moh'd Yusaf accused admitted having murdered Khadim Hussain. Wazir Moh'd also made a statement to the same effect in which he mentioned

that Moh'd Yusaf Accused admitted before him that he had murdered Khadim Hussain. We are not impressed by the testimony of these two

witnesses. It is highly improbable that - Moh'd Yusaf accused would admit his guilt before total strangers whom he had never met before. The

evidence of Dil Pazir and Wazir Moh'd is not convincing and we do not propose to rely on it.

Apart from this evidence, there is the statement of the approver connecting Moh'd Yusaf accused with the commission of the crime which is

corroborated by the recovery of the towel and the blanket of the deceased which were lying under his head at the time of murder from the house

of the accused. Lastly, we will examine the evidence adduced by the prosecution in regard to Saida accused. It is true that the approver has stated

that Saida accused caught hold of the arms of the deceased at the time when he was being strangulated. This is part of the statements made by

Mst. Abdul Bano and Mst. Amrit Bano, but as stated above, we do not propose to place any reliance on their evidence because the statements

before the Tehsildar Magistrate u/s 164, Code of Criminal Procedure and before the Committing Court were made by them under coercion and

police pressure. No reliable evidence has been produced by the prosecution to corroborate the statement of the approver connecting Saida with

the commission of the crime. Under these circumstances it is not safe to convict Saida on the uncorroborated testimony of the approver in regard

to his participation in the crime.

We are satisfied that the evidence produced by the prosecution fully brings home the offence u/s 302, R.P.C. against Moh'd Yusaf, Nizam - ud

- Din and Mehanda. There is also evidence produced by the prosecution to show that Moh'd Yusaf, Nizam - ud - Din and Mehanda after

committing the murder of Khadim Hussain caused the evidence of the commission of that offence to disappear by burying the body of the

deceased in Moh'd Yusuf's field. Their conviction under Sections 302 and 201, R.P.C. have been rightly recorded by the earned Additional

Sessions Judge.

Moh'd Yusaf accused has been sentenced to death u/s 302, R.P.C. whereas Nizam - ud - Din and Mehanda are sentenced to imprisonment for

life. We are unable to find Any distinction between the case of Moh'd Yusuf and that of the other two accused. On the other hand, Moh'd Yusaf,

as appears from the evidence, was put to great ignominy by the act of the deceased who had contracted illicit intimacy with his daughter, Amrit

Bano. Moh'd Yusaf accused committed this heinous crime because he felt that he was disgraced by the deceased. Under these circumstances he

does not deserve the extreme penalty of law u/s 302, R.P.C. We, therefore, allow his appeal to this extent that while maintaining his convictions

under Sections 302 and 201, R.P.C. we commute his sentence prom death to imprisonment for life. The fine of Rs. 200/ - is remitted. The

sentence of two years rigorous imprisonment u/s 201, R.P.C. is maintained. As regards Nizam - ud - Din and Mehanda both their convictions and

sentences of imprisonment under Sections 302 and 201, R.P.C. are maintained but their fines u/s 302, R.P.C. are remitted and if paid, shall be

refunded to them. Sentences of imprisonment shall run concurrently. We allow Saida's appeal and giving him the benefit of doubt quash his

convictions and sentences under Sections 302 and 201, R.P.C. He shall be set at liberty forthwith unless required in connection with some other

case. Fine, if paid, shall be refunded to him. The reference is disposed of accordingly.

S. Murtaza Fazl Ali, J.

I agree.