Sachchan Khan and Others vs State of U.P.

Vishnu Sahai, J.—Five persons, namely, Sachchan Khan, Lal Mian, Umar Daraz, Mehndi Khan and Chhottan were charged by the Special and Additional Sessions Judge, Hardoi for offences punishable under Sections 302 read with 149, I.P.C., 148, I.P.C. and 201, I.P.C. Vide judgment dated 21.8.1985, the learned Judge convicted and sentenced them in the manner stated hereinafter:

(i) u/s 302 read with 149, I.P.C. to undergo imprisonment for life ;

(ii) u/s 148, I.P.C. to undergo two years'' R.I. ; and (iii) u/s 201, I.P.C. to undergo four years'' R.I.

Their substantive sentences were directed to run concurrently.

Aggrieved by their aforesaid convictions and sentences Sachchan Khan, Lal Mian, Umar Daraz and Mehndi Khan preferred Criminal Appeal No. 567 of 1985 in this Court and Chhottan preferred Criminal Appeal No. 568 of 1985.

During the pendency of Criminal Appeal No. 567 of 1985, Appellant Sachchan Khan died and a Division Bench of this Court comprising of Hon''ble Virendra Saran and R. D. Mathur, JJ. vide order dated 18.8.2000 directed his appeal to abate.

Since both these appeals arise out of a common factual matrix and judgment, we are deciding them with a common judgment.

Shortly stated, the prosecution case runs as under:

Informant Smt. Suraiya Begum, P.W. 1 and Km. Aisha P.W. 2 are the wife and daughter respectively of the deceased Haggu alias Aizaz Khan. At the time of the incident, they along with the deceased and Appellants Sachchan Khan, Lal Mian, Umar Daraz and Mehndi Khan were living in village Nizampur, within the circle of P.S. Pali, district Hardoi. At the said time, Appellant Chhottan was living in Pali.

There was enmity between the Appellants and the deceased because the latter was having illicit relationship with the wife of Appellant Sachchan Khan. Appellant Chhottan was the brother of Appellant Sachchan Khan and the other Appellants are said to be associates of Appellant Sachchan Khan.

On 30.6.1984 Suraiya Begum, P.W. 1 accompanied by her husband Haggu alias Aizaz Khan and her daughter Aisha, P.W. 2 had gone to Hardoi to take medicine and thereafter to Pali to make some purchases in connection with festival. At about 11 a.m. while she, her daughter Aisha and her husband, were returning and had reached east of the grove situated a little before their village, Appellant Sachchan Khan armed with a gun, Appellants Lal Mian and Umar Daraz armed with pistols, Appellant Mehndi Khan armed with a bhala and Appellant Chhottan armed with a gandasa emerged. Seeing them, Haggu alias Aizaz Khan threw his cycle and ran in east-south direction. The Appellants followed him. When he had crossed the road, Sachchan Khan fired on him. Thereafter Lal Mian and Umar Daraz fired on him. As a consequence thereof, Haggu alias Aizaz Khan fell down in the field of Fakhrudin. The informant and her daughter Aisha, who were running behind Haggu alias Aizaz Khan, reached the said field. In the said field, Chhottan severed the head of Haggu alias Aizaz Khan with a gandasa while the other four Appellants were catching hold of him. Then the Appellants took off the Tahmad, Baniyan, Kurta and underwear from the person of Haggu alias Aizaz Khan and along with his head, ran away.

Thereafter on the place of the incident itself, informant got the F.I.R. scribed by one Hasib Khan. Whatever she dictated to him, he scribed. She then affixed her thumb impression on the F.I.R. and sent it to the police station Pali through her father.

The evidence of Station Officer R. K. Tewari, P.W. 6 shows thus: On 30.6.1984 he was posted in the said capacity at police station Pali. The F.I.R. was lodged in his presence and on its basis. Head Constable Umesh Pal Singh prepared chik F.I.R. at 12.05 p.m. (a perusal of the chik F.I.R. shows that the distance between the place of the incident and police station Pali was 2 kilometres). He thereafter took over the investigation. He recorded the statement of the informant''s father and then left for the place of the incident where he performed the inquest on the corpse of the deceased, seized blood stained clothes of the deceased and sent the corpse for autopsy. He recovered from the place of the incident plain and blood stained earth in two separate containers, vide separate recovery memos. He then recorded the statements of Suraiya Begum and Aisha and prepared site plan Exhibit Ka-16. He started searching for the head of the deceased. On 6.7.1984 at 10 a.m. one Murti Kishore, resident of Pali, brought the severed head of the deceased to the police station. He made an entry in the General Diary (Exhibit Ka-17), regarding this fact. He showed the severed head to the informant Smt. Suraiya Begum and her daughter who identified it to be that of the deceased. He thereafter performed inquest on the head of the deceased and also sent it for autopsy. He did some other investigation also, but since in our view a reference to it is not necessary for the disposal of these appeals, we are not adverting to it. After completing the investigation, he submitted charge-sheet.

Going backwards, autopsy on the headless corpse of deceased Aizaz Khan as also on his head was conducted by Dr. R. N. Gupta, P.W. 3 on 1.7.1984 at 2 p.m. and on 6.7.1984 at 6 p.m. respectively.

On the headless corpse of the deceased, Dr. R. N. Gupta found the following ante-mortem injuries:

(1) Head is missing at the level of cervical 6 vertebra. Vertebra is cut through and through. Cut is clean cut. Diameter of the neck is 14 cms. and circumference is 34 cms.

(2) Firearm wound of entry of size 3-1/2 cm. - 3 cm. - wound of exit on left side chest, 8 cm. away from the left nipple at 10.30 O''clock. Margin inverted and lacerated. Blackening present. Direction from left to right and downwards and backwards.

(3) Firearm wound of exit of size 8 cm. - 4 cm. - comm. to injury No. 2 on right side abdomen, 9 cms. away from umbilicus at 10 O''clock position. Margin lacerated and inverted.

(4) Firearm wound of size 8 cm. - 5 cm. - through and through on right palm, front. Margin lacerated body. Blackening and tattooing present.

(5) Eight incised wounds of varying sizes from 6 cm. - 3 cm. - muscle to 3 cm. - 1 cm. - muscle on right upper extremity.

(6) Multiple abraded contusion varying in size from 6 cm. - 2 cm. to 2 cm. - 2 cm. on chest and abdomen.

(7) Lacerated wound size 4 cm. - 2 cm. - muscle on left forearm back.

(8) Incised wound size 3 cm. - 1 cm. - muscle on back left side.

(9) Two incised wounds of size 8 cm. - 3 cm. - muscle, 7 cm. - 4 cm. - scrotal muscle on pubic and scrotal region.

(10) Lacerated wound 2 cm. - 1 cm. - muscle deep on left thigh, middle front.

In the opinion of Dr. Gupta, the deceased died on account of shock and haemorrhage as a result of the ante-mortem injuries.

On the head of the deceased, Dr. Gupta found thus:

At places skin is absent. Spectal on mandible and tip of nose is absent. Skin on cheek is coming out. Eyes closed. Teeth are loose almost falling to the respective sockets. Tempro mandible joint loose and skin on the scalp C hair present. Hairs are just stuck on the scalp. Hairs are of about 4 cm. in length, almost black in colour. Maggots at places crawling over head.

Dr. Gupta also found vertebra C6 clean cut and left mandible cut.

In the opinion of Dr. Gupta, the deceased died on account of shock and haemorrhage on account of the ante-mortem injuries on the head.

The case was committed to the Court of Sessions in the usual manner where the Appellants were charged on the counts mentioned in paragraph 1. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial.

During trial, in all the prosecution examined six witnesses. Both the eye-witnesses, i.e., Suraiya Begum and Aisha, P. Ws. 1 and 2 respectively were examined. During cross-examination, they were suggested that they did not see the incident and were falsely deposing against the Appellants, which suggestion they obviously denied.

In defence, no witness was examined.

The learned trial Judge believed the ocular account furnished by the prosecution and convicted and sentenced the Appellants in the manner stated in paragraph 4.

Hence, this appeal.

We have heard learned Counsel for the parties and have gone through the entire record and have no reservations in observing that these appeals deserve to be allowed.

As would become manifest from the above, the conviction of the Appellants is based on the ocular account furnished by Suraiya Begum, P.W. 1 and Aisha, P.W. 2, wife and daughter respectively of deceased Aizaz Khan. In our view, it would not be safe to accept their testimony. We would first enumerate the common reason for reaching the said conclusion.

The evidence of Suraiya Begum, P.W. 1 shows that the deceased was only fired upon by Appellants Sachchan Khan, Lal Mian and Umar Daraz. Evidence of Aisha, P.W. 2 shows that the said Appellants fired upon him and Appellant Mehndi Khan assaulted him with a bhala (in her cross-examination, she stated about assault by bhala by Mehndi Khan). It is significant to mention that the evidence of both these witnesses shows that the three Appellants named above were armed with firearms, Appellant Chhottan was armed with a gandasa and Appellant Mehndi Khan was armed with a bhala. Their evidence shows that none of the five Appellants had any blunt weapon with them. In such a factual matrix, their claim of having seen the incident is blasted by the circumstance that on the headless corpse of the deceased, the autopsy surgeon Dr. R. N. Gupta found three blunt weapon injuries which are numbered as ante-mortem injury Nos. 6, 7 and 10 and which read thus:

Multiple abraded contusion varying in size from 6 cm. - 2 cm. to 2 cm. - 2 cm. on chest and abdomen.

Lacerated wound size 4 cm. - 1 cm. - muscle on left forearm back.

Lacerated wound 2 cm. - 1 cm. - muscle deep on left thigh, middle front.

A perusal of these injuries makes it manifest that they are typical blunt weapon injuries. In this connection, we would like to mention that the prosecution being conscious that there was no explanation for these three blunt weapon injuries in examination-in-chief did not question Dr. R. N. Gupta how these injuries were caused. However, the defence did not miss the opportunity and in his cross-examination asked him how they were caused and he replied that they were possible with a blunt object.

In our judgment, had Suraiya Begum, P.W. 1 and Aisha, P.W. 2 seen the incident, they would have been obviously explained how the deceased sustained these three blunt weapon injuries. In our view, this circumstance alone is sufficient to negative their claim of having seen the incident ; more so, because they are highly interested persons, being the wife and daughter respectively of the deceased.

We feel it pertinent to mention that we ourselves meticulously went through the evidence of both Smt. Suraiya Begum, P.W. 1 and Aisha, P.W. 2 and the entire record to find out whether there was any possible explanation for the three blunt weapon injuries found on the headless corpse of the deceased, namely, ante-mortem injury Nos. 6, 7 and 10, but we did not find any explanation. It is significant to mention that right from the F.I.R., which was lodged by eye-witness Smt. Suraiya Begum, P.W. 1, the prosecution case is that after the murder, the Appellants left the headless corpse of the deceased on the place of the incident and went away carrying the head of the deceased. Thereafter, the evidence shows that the headless corpse of the deceased was under the care of villagers till the investigating officer, the same afternoon, seized it, performed inquest on it ; and sent it for autopsy.

There is another reason which makes us doubt the claim of Smt. Suraiya Begum, P.W. 1 of having seen the incident. In her cross-examination (in paragraph 7) she stated that the Appellants had cut the nose, tongue and lips of the deceased and had taken them with them. It is pertinent to mention that the autopsy surgeon Dr. R. N. Gupta, P.W. 3 in his cross-examination candidly admitted that he found the nose and lips present on the head of the deceased. In our judgment, since Smt. Suraiya Begum did not see the incident, she drew from her imagination that the Appellants had cut the tongue and lips of the deceased. On no other rational hypothesis, the said statement of Smt. Suraiya Begum, P.W. 1 can be explained.

There are also some other reasons as to why we do not find the evidence of Aisha, P.W. 2 to be reliable. If the F.I.R. is carefully perused, then it appears that in the beginning the informant Smt. Suraiya Begum, P.W. 1 has categorically stated that she along with the deceased was returning from Hardoi where they had gone to take medicine and from there to Pali where they had gone to make some purchases in connection with festival. However, after describing the pattern of assault, in the F.I.R. she stated that her daughter was also raising cries and had seen the incident. How she reached the place of the incident is not clear from a perusal of the F.I.R. It is significant to point out that prosecution was conscious of this infirmity and consequently Smt. Suraiya Begum, P.W. 1 and Aisha, P.W. 2 stated in their examination-in-chief that the latter was also returning along with the deceased.

Matters did not end here. It is significant to mention that in her cross-examination Aisha, P.W. 2 has come out with an altogether new case. She stated that Appellant Mehndi Khan assaulted her father (the deceased) with a bhala, but she did not remember the number of blows given by him. It is significant to point out that apart from the fact that neither her mother Smt. Suraiya Begum has stated in the F.I.R. nor in her substantive statement nor she (Aisha) in her examination-in-chief that the deceased was assaulted with a bhala, we find no punctured wound injury on the corpse of the deceased. This obviously shows that the story of deceased being assaulted by a bhala, as deposed to by her, is a figment of her imagination and it is common knowledge that the imagination of a witness runs riot if she/he has not witnessed the incident. We make no bones in observing that this is exactly the case with Aisha, P.W. 2.

For the aforesaid reasons, we feel that it would be extremely unsafe to accept the testimony of Smt. Suraiya Begum, P.W. 1 and Aisha, P.W. 2. Since, there is no other evidence to connect the Appellants with the crime, we are left with no alternative but to acquit them.

In the result:

A. Criminal Appeal No. 567 of 1985:

The appeal preferred by Lal Mian, Umar Daraz and Mehndi Khan is allowed. Their convictions and sentences for the offences punishable under Sections 302 read with 149, I.P.C., 148, I.P.C. and 201, I.P.C. are set aside. They are acquitted thereunder. They are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged.

As mentioned in paragraph 2, since Appellant Sachchan Khan is dead, the appeal preferred by him abates.

B. Criminal Appeal No. 568 of 1985:

The appeal is allowed. The conviction and sentence of Appellant Chhottan for offences punishable under Sections 302, read with 149, I.P.C., 148, I.P.C. and 201, I.P.C. are set aside. He is acquitted thereunder. He is on bail. His bail bonds shall stand cancelled and sureties discharged.