Sanaullah vs State of U.P.

Surendra Kumar, J.—Heard Sri Patanjali Mishra, learned amicus curiae for the appellant and Smt. Raj Laxmi Sinha, learned A.G.A. for the State.

The instant criminal appeal has been filed by the sole appellant Sanaullah, resident of village Kaulsena, Police Station Chandpur, District Bulandshahar, by invoking appellate jurisdiction of this Court u/s 374(2). Cr.P.C. against the judgment and order dated 26.7.1982 passed by IVth Additional Sessions Judge. Bulandshahar, in Session Trial No. 9 of 1982, State v. Sanaullah u/s 302, I.P.C. relating to Police Station Chandpur, District Bulandshahar whereby the appellant Sanaullah has been convicted u/s 302, I.P.C. for committing the murder of Alia Bux, aged about 30 years, by inflicting repeated blows of knife and sentenced to undergo imprisonment for life.

The facts giving rise to the appellant''s prosecution, as unfolded in the first information report by Abdul Razzak (real brother of the deceased) lodged on 21.10.1981 at 12:10 p.m. at Police Station Chandpur after covering a distance of four kilometers from the place of the occurrence, in brief, are that his brother Alla Bux had got an agreement for sale of a house executed in his favour from Sanaullah. On the expiry of the agreed period. Alla Bux called upon the accused to execute the sale-deed or refund the earnest money. Sanaullah kept postponing the matter and when finally Alla Bux made an affective demand, he was threatened by the accused that he would soon see him. On that day, i.e., 21.10.1981 at about 7:00 a.m. Alla Bux had gone to plough his field situated in village Neemkhera and as he reached near the field of Badri Prasad, the appellant stabbed him from the back with a knife declaring that he was executing the sale-deed by murdering him. The incident was witnessed by Sher Mohammad P.W. 3, Mushtaq Khan P.W. 2 and Yasin, on whose arrival, the appellant ran away treating the victim to be dead. The appellant was given a chase but he could not be apprehended and managed to escape towards the river.

The victim was immediately rushed to the District Hospital where he was medically examined and his injury report was submitted at the Police Station while lodging the first information report. Chik report No. 311 dictated by Abdul Razzaq was recorded by H.C. Hariya Singh who registered the case u/s 307, I.P.C. in G.D. at Serial No. 21. the investigation of which was taken up by S.I. Shishpal Sharma P.W. 4. The victim who was admitted in the District Hospital, was in the meantime operated upon by the surgeon but he succumbed to his injuries on 23.10.1981 at 10:50 p.m. His dying declaration was, however, recorded on the same day at 6:00 p.m. by Sri Bahadur Singh, Executive Magistrate P.W. 8 when the victim was certified to be in full senses while making the dying declaration by Dr. R.R. Tyagi P.W. 9 who was on emergency duty.

The inquest on the dead body of the deceased was conducted by S.I. Surendra Pal Singh of Police Station Kotwali and the dead body was forwarded for autopsy duly sealed through constables Kaliram and Narottam Singh. The autopsy was performed by Dr. M.P. Agarwal P.W. 7 who confirmed the death of the victim due to shock and haemorrhage resulting from ante-mortem injuries inflicted to him.

The Investigating Officer, S.I. Shishpal Sharma P.W. 4 interrogated the scribe of the first information report on the following day of the registration of the crime and proceeded to the District Hospital where statement of the informant Abdul Razzaq was recorded who furnished the blood stained clothes of the victim bearing the cut marks of the knife. Thereafter, he recorded the statement of the victim which was also sought to be used as dying declaration at trial. Thereafter, the Investigating Officer proceeded to the spot and prepared site plan. He also collected blood stained earth from there. At the spot, he interrogated eye-witness Yasin but Sher Mohammad could not be available. The appellant too was found absconding. Sher Mohammad was interrogated on 24.10.1981. On receipt of the report of autopsy, the case was converted into one u/s 302, I.P.C. on 7.11.1981. The appellant surrendered himself before the learned Chief Judicial Magistrate on 28.10.1981 and was interrogated by the Investigating Officer in the lock-up on 9.11.1981. On that very day, remaining witnesses Mushtaq and others were interrogated and after completion of the investigation, the appellant was charged sheeted.

Dr. V.C. Goyal P.W. 5 had medically examined the victim Alla Bux in the operation theatre of the District Hospital on the same day, i.e., 21.10.1981 at 9:00 a.m. and found following injuries on his person:

(i) Incised wound (stab wound) 10 c.m. x 4 c.m. cavity deep on the left side of chest in the lower portion. 6 c.m. below the left nipple (transverse in direction), loop of transverse colon and ruptured lung tissue coming out. It was a sucking wound, i.e., air was passing through it.

(ii) Incised wound (stab wound) 3 c.m. x 2 c.m. x abdominal cavity deep on the left side abdomen, 2 c.m. above left iliac crest (loop of intestine coming out).

(iii) Stab wound 5 c.m. x 2 c.m. x bone deep on right upper arm outer aspect in the upper 1/3rd.

(iv) Incised wound (stab wound) 3 c.m. x 1 c.m. x cartilage deep on tip of nose.

(v) Incised wound (stab wound) 3 c.m. x 2 c.m. x muscle deep on outer aspect of left forearm front of upper 1/3rd.

(vi) Incised wound (stab wound) 7 c.m. x 3 c.m. x muscle deep on left lumber region just above left iliac crest.

(vii) Incised wound (stab wound) 3 c.m. x 2 c.m. x muscle deep in the middle of left scapular region.

All injuries were simple except injury Nos. 1 and 2 which were dangerous to life, caused by sharp weapon and duration was fresh. The general condition was very low. Injury report is Ext. Ka-8.

The doctor confirmed that the victim was admitted in the hospital for treatment and injuries caused to the victim could be of 7:00 a.m. on the same day. He opined that injuries were sufficient in the ordinary course of nature to cause death.

The autopsy on the dead body of the deceased Alla Bux aged about 30 years was conducted on 24.10.1981 at 3:40 p.m. by Dr. M.P. Agarwal P.W. 7 who after conducting autopsy prepared post-mortem examination report Ext. Ka-14. Dr. M.P. Agarwal P.W. 7 received the sealed dead body from constables Kaliram and Narottam Singh alongwith relevant papers. Following ante-mortem injuries were found on the dead body of the deceased Alla Bux:

(i) Stitched wound 4" long with ten stitches front of left side chest, 1-1/2" below nipple and placed parallel to clavicle.

(ii) Stitched wound 1" long with four stitches on nose.

(iii) Stitched wound 2-1/2" long on the back of the left shoulder with five stitches.

(iv) Stitched wound with 15 stitches 4" long right on front upper part and above extending clavicle.

(v) Stitched wound 2" long with 4 stitches, lower part of left side back.

(vi) Incised wound 1/2" x 1/4" x muscle deep on chest left side, 4" below axillary joint.

(vii) Longitudinal stitched wound parallel to mid line of abdomen left side, abdomen 2" out to mid line, 6" long with 20 stitches extending 1-1/2" away (sic).

(viii) Stitched wound right side of abdomen from 1" below belly, 5" out to vessel at 9 O''clock position, 3" c.m. long with 7 stitches, a rubber tube intubated under abdomen.

(ix) Incised wound 1/2" x 1/4" x muscle deep on left leg of lower part.

(x) Traumatic swelling 8" x 4" on the right front, ankle and lower part of right leg.

(xi) Stitched wound 3" long left upper side extending from elbow to back of left forearm, 6 stitches.

(xii) Rubber tube intubated through abdomen left side, 6 c.m. outer to vessel at 4 O''clock position.

During internal examination, Dr. Agarwal found peritoneum of the abdomen was ruptured at places. Small and large intestine of the deceased were also ruptured at several places. The death of the deceased had taken place 18 hours prior to the time of autopsy, which was caused due to so-called as a result of ante-mortem injuries. Dr. Agarwal further proved that the deceased had died in the hospital on 23.10.1981 at 10:15 p.m. as was evident from Bed Head Ticket Ext. Ka-15.

The charge u/s 302, I.P.C. was framed on 25.2.1982 against the accused-appellant. The charge was read over and explained to the appellant who pleaded not guilty and claimed to be tried.

The prosecution in support of the charge levelled against the appellant examined the first informant Abdul Razzak (brother of the deceased) P.W. 1, Mushtafa Khan @ Mushtaq P.W. 2, Sher Mohammad P.W. 3 as eye-witnesses of the occurrence.

The prosecution also examined S.I. Shishpal Sharma P.W. 4 who proved Chik F.I.R. Ext. Ka-1 and G.D. entry thereof Ext. Ka-3 having been prepared. In the handwriting and signature of Head Moharrir Hariya Singh. Head Moharrir Hariya Singh was posted with P.W. 4, hence P.W. 4 proved these two documents on the basis of his familiarity with the handwriting and signature of the Head Moharrir Hariya Singh. P.W. 4 was entrusted with the investigation of this case. He interrogated scribe of the first information report and proceeded to the District Hospital where he recorded the statement of the first informant Abdul Razzak. The first informant Abdul Razzak furnished blood stained clothes of the deceased bearing cut marks of the knife vide memo Ext. Ka-2. Thereafter, the Investigating Officer P.W. 4 proceeded to the spot and prepared site plan Ext. Ka-5 on 22.10.1981. P.W. 4 also collected blood from place of the incident and sealed plain earth and blood stained earth in separate containers vide memo Ext. Ka-6 and recorded statement of the victim Alla Bux u/s 161, Cr.P.C. Ext. Ka-4 which was also sought to be used as dying declaration at trial.

The Investigating Officer. S.I. Shishpal Sharma P.W. 4 recorded statement of the other eye-witnesses and reached house of the appellant Sanaullah but he was absconding. The case was converted into one u/s 302, I.P.C. on 7.11.1981. The appellant Sanaullah was interrogated in the lock-up on 9.11.1981. On completion of the investigation, charge-sheet Ext. Ka-7 was filed against the accused.

A close scrutiny of the cross-examination of the Investigating Officer P.W. 4 makes it clear that the investigating Officer before recording statement of the victim u/s 161, Cr.P.C. did not feel any necessity of taking a certificate from the doctor about mental and physical capacity of the victim to give statement. P.W. 4 clearly stated that when he recorded investigatory statement of the victim, the victim was clearly and coherently speaking and was responding to the questions properly. It is evident that the statement of the victim was recorded as narrated by the victim. The Investigating Officer candidly denied defence suggestion that the victim was not able to speak and was not capable to give the statement at the time of his statement allegedly recorded. The Investigating Officer clearly admitted the fact that he did not send the blood stained earth and blood stained clothes of the victim for chemical examination as the same were not needed. The reason for not taking police custody remand of the appellant was narrated by the Investigating Officer that since the appellant did not show his willingness to get the weapon of offence recovered, no police custody remand was applied.

The prosecution examined Dr. V.C. Goel P.W. 5 to prove the injury report of the victim and also Dr. M.P. Agarwal P.W. 7 to prove the postmortem report of the victim. The prosecution examined S.I. Surendra Pal Singh P.W. 6 who proved inquest of the deceased dated 24.10.1981 Ext. Ka-9 and also proved preparation of letter to R.I., letter to Chief Medical Officer, Challannash and Photonash Ext. Ka-10 to Ext. Ka-13. Thereafter, the dead body was sealed in a piece of cloth and sent for post-mortem through constable Kaliram and Narottam Singh alongwith relevant papers.

The prosecution also examined Shri Bahadur Singh, Executive Magistrate P.W. 8 who proved dying declaration of the victim dated 23.10.1981 Ext. Ka-16. The prosecution examined Dr. R.R. Tyagi P.W. 9 who certified that at the time of the dying declaration, the victim Alla Bux was in full senses and was mentally and physically fit to give the statement. Dr. Tyagi proved the certificate about mental and physical fitness of the victim as Ext. Ka-17 and also proved that he (P.W. 9) identified the victim before Shri Bahadur Singh, Executive Magistrate.

It may be noted here that the dying declaration of the victim Alla Bux was recorded by the Executive Magistrate P.W. 8 on 23.10.1981 at 6:00 p.m. at the hospital and before recording the dying declaration. Dr. Tyagi P.W. 9 certified at the bottom of the statement that at the time of recording of the dying declaration, the patient/victim remained in full senses. The dying declaration was proved as Ext. Ka-16 and endorsement of the certificate by the doctor as Ext. Ka-17.

The appellant in his examination u/s 313, Cr.P.C. denied his participation in the murder and gave out that he had taken the land of the deceased on lease for two years and had paid Rs. 2,000 in cash and Rs. 1,600 was to be paid later on. He further added that about 1-1/2 years earlier, he had been threatened by the witness Sher Mohammad to pay Rs. 2,000 otherwise he would see him and Sher Mohammad had also teased his wife upon which he had a quarrel with him. He had categorically denied the execution of an agreement for sale of his house in favour of the deceased. The defence had examined constable Rajeshwar Prasad D.W. 1 to prove the F.I.R. of Crime No. 21 registered against Sher Mohammad and 4-5 others under Sections 395, 397, 429 and 436, I.P.C. at Police Station Chandpur and another non -cognizable report No. 191 dated 12.10.1981 lodged by the appellant against the deceased and his brother under Sections 323, 504 and 506, I.P.C. for assaulting his wife, D.W. 2 Ataur Rahman Khan, advocate to prove the reply of the notice sent by the appellant to the deceased, D.W. 3 Harish Chand Mittal, advocate to prove the notice served on behalf of the deceased upon the appellant demanding the execution of the sale deed in terms of the agreement for sale. The postal acknowledgment of the receipt of reply of notice by the deceased was also filed in defence. Thus, the constable Rajeshwar Prasad D.W. 1. Ataur Rahman Khan D.W. 2, Harish Chand Mittal D.W. 3 were examined in the defence evidence.

A look at the defence evidence exhibits that D.W. 1 proved the same G.D. Ext. Kha-1 relating to Chik No. 19 dated 13.1.1980 wherein final report dated 12.7.1980 was filed after inquiry. D.W. 2 was an advocate, who proved reply to the notice sent by him at the instance of the appellant. Reply to the notice was proved as Ext. Kha-3 by D.W. 2, D.W. 3 who is also an advocate, proved that at the instruction of Alla Bux on 1.9.1981, he (D.W. 3) had sent a notice through registered post to Sanaullah. The said notice was proved as Ext. Kha-4 by D.W. 3.

Now, a close scrutiny of the evidence of the eye-witnesses Abdul Razzak P.W. 1, Mushtafa Khan @ Mushtaq P.W. 2 and Sher Mohammad P.W. 3 is very necessary for coming to our own independent conclusion.

Abdul Razzak P.W. 1 is the first informant as well as real brother of the deceased Alla Bux. He had lodged the first information report of the occurrence Ext. Ka-1 after about five hours and ten minutes of the occurrence, i.e. On 21.10.1981 at 12:10 p.m. after covering a distance of four kilometers from the place of the occurrence, jungle of village Neemkhera. The appellant Sanaullah was named in the promptly lodged first information report of this murder and the same contained a detailed account of the occurrence as well as motive for the murderous attack upon the victim Alla Bux. Even name of the eye-witnesses Mushtafa Khan @ Mushtaq P.W. 2 and Sher Mohammad P.W. 3 examined in the court were mentioned in the first information report. Though delay in lodging the first information report has been assailed before us during arguments but there is Very valid and plausible explanation for the delay that the victim having been injured seriously was rushed to the District Hospital and only after medical examination which was conducted at the District Hospital on 21.10.1981 about 9:00 a.m. vide injury report Ext. Ka-8, the first information report could be lodged at the Police Station Chandpur. Medical examination of the victim was conducted in the operation theatre, his general condition was poor and, therefore, brother of the victim P.W. I would have naturally been interested in ensuring proper and timely medical aid to the victim rather than to rush to the Police Station for lodging the first information report. Thus, there is no delay in lodging the first information report and the time between the occurrence and lodging of the first information report has been satisfactorily explained by Abdul Razzak P.W. 1.

According to the evidence of Abdul Razzak P.W. 1, the deceased Alla Bux was his real brother, on the day of the occurrence around 7:00 a.m., the witness was going towards his field situated in village Neemkhera. At that time his brother deceased Alla Bux was going to plough his filed. The witness heard some cries from the side of field of Badri Prasad when the witness was few steps away from the field of Yasin. P.W. 1 immediately reached the spot namely field of Badri Prasad where Mushtafa Khan @ Mushtaq P.W. 2, Sher Mohammad P.W. 3 and Yasin were raising cries and when the witness reached the spot, he saw the appellant Sanaullah with a knife in his hand running towards river and his brother victim Alla Bux was lying in an injured condition in the agriculture field of Badri Prasad, P.W. 1, P.W. 2, P.W. 3 and Yasin chased the appellant Sanaullah who could not be apprehended. When the witness came back to the spot, the victim Alla Bux had bleeding knife injuries on his body. Just then P.W. 1 took his brother victim Alla Bux to the District Hospital. Bulandshahr by transporting him in the tonga of Yasin. The victim Alla Bux was medically examined at the District Hospital and admitted there. P.W. 1 went to the Police Station Chandpur alongwith injury report where he gave oral information about the incident and the first information report of the incident Ext. Ka-1 was lodged at his dictation. The victim Alla Bux remained under treatment for three days at the District Hospital and during treatment on the 3rd day, he succumbed to his injuries.

The deceased Alla Bux got an agreement for sale of the house of the appellant Sanaullah executed for a sum of Rs. 2,100 which was a registered agreement. The limitation for executing the sale deed was settled as one year. The deceased Alla Bux several times asked the appellant Sanaullah to execute the sale deed in pursuance of the registered sale deed but the appellant did not oblige and when lastly one day the deceased Alla Bux asked the appellant to execute the sale deed, the deceased was threatened saying that he would pay the whole amount with interest. P.W. 1 handed over blood stained clothes of the deceased to the Investigating Officer and the same were sealed vide memo Ext. Ka-2 whereupon P.W. 1 put his signature.

Abdul Razzak P.W. 1 in his evidence at the trial, in all fairness confined himself to have seen the appellant running away towards river with knife in his hand and his brother, the deceased Alla Bux was lying injured in the agricultural field of Badri Prasad. The deceased Alla Bux was bleeding from his stab wounds, the appellant Sanaullah could not be apprehended despite the chase. The facts narrated in the first information report were deposed by P.W. 1 in his evidence at trial and he fully corroborated the prosecution version as was given in the first information report lodged by him. The same facts were told by P.W. 1 to the Investigating Officer without there being any material omission or any kind of contradiction. The blood was found at the place of the incident which was shown by letter ''A'' in the site plan Ext. Ka-5 and from point "A", blood stained earth and plain earth were taken by the Investigating Officer.

Abdul Razzak P.W. 1 clearly denied the defence suggestion that the deceased Alla Bux had given his 18 bighas agricultural land to the appellant Sanaullah for Rs. 3.600 for the period of two years of which a sum off Rs. 2,000 was paid as earnest money by the appellant to the deceased Alla Bux. P.W. 1 further clarified the defence suggestion that since the deceased Alla Bux had no agricultural land in his name, there was no question of giving any land on the lease by the deceased to the appellant Sanaullah. The whole agricultural holding was in the name of the father of the deceased Alla Bux and his chacha. The suggestion denying the execution of any sale agreement of the house of the appellant Sanaullah in favour of the deceased Alla Bux was put to P.W. 1 by defence and the suggestion was denied by P.W. 1.

It is evident from testimony of P.W. 1 that in the evening of the previous day of the incident, the deceased Alla Bux compelled the appellant to execute the sale deed of the house of the appellant in his favour in pursuance of the registered sale agreement. P.W. 1 clearly stated in his evidence that P.W. 1 also had agricultural plot in that direction. The plot of the witness was towards the East to the field of Badri Prasad. At the time of the occurrence, P.W. 1 had gone to his field to bring fodder for the cattle and while going towards his field, he heard cries from the field of Badri Prasad. P.W. 1 clearly denied defence suggestion that the witness did not witness the incident of murder of the deceased Alla Bux and the appellant has been falsely implicated in the said murder on account of enmity.

The next eye-witness Mushtafa Khan @ Mushtaq P.W. 2 at the time of the incident was on the way to his field, he heard alarm of the deceased Alla Bux when he had reached near the plot of Madan Kishan. On reaching the plot of Badri Prasad from where alarm of Alla Bux was coming, P.W. 2 noticed the appellant inflicting knife blows upon Alla Bux on the boundary of the field of Badri Prasad. P.W. 2 further confirmed that Sher Mohammad P.W. 3 and Yasin had also reached the spot alongwith him. P.W. 2 further confirmed the presence of Abdul Razzak, brother of the deceased.

According to the testimony of Mushtafa Khan @ Mushtaq P.W. 2, the appellant took to his heels and he could not be apprehended in spite of the chase by the witnesses. The victim was rushed to the hospital in Pushcart/Rehri of Yasin. Since P.W. 2 was going at the time of the incident to his field when he witnessed, on 21.10.1981 at 7:00 a.m., that the appellant Sanaullah was inflicting knife blows upon the victim Alla Bux, therefore, the presence of P.W. 2 at the spot was natural and he cannot be treated as a chance witness. P.W. 2 gave correct topography of the spot which shows that P.W. 2 had the field near place of the occurrence. P.W. 2 further maintained that maize crops between his plot and the plot of Badri Prasad which belonged to Madan and Faqira has already been harvested and there was no obstruction for P.W. 2 to witness the incident namely attack upon the victim by the appellant Sanaullah with knife in the field of Badri Prasad from his own field. P.W. 2 was natural witness because he used to visit his field for keeping the watch as it had sugarcane crop. The field of the witness was in the vicinity of the place of the incident namely agriculture field of Badri Prasad. On hearing cries of the victim, P.W. 2 rushed to the victim and had full occasion to witness the actual attack by the appellant Sanaullah with knife upon the victim Alla Bux. P.W. 2 further stated that presence of Sher Mohammad P.W. 3 and Yasin at the spot was quite natural as their fields were adjoining to his field.

Mushtafa Khan @ Mushtaq P.W. 2 specifically stated that he witnessed the appellant giving knife blows to the victim from a close distance, i.e., only 6-7 paces and as such he could not be mistaken in identifying the assailant. P.W. 2 accompanied the victim to the hospital but this does not make P.W. 2 a partisan witness because every person developed sympathy with the victim who sustained serious injury so as to assist him in sending him to the hospital for medical aid. On a close scrutiny of the evidence of P.W. 2, we find his testimony perfectly trustworthy and reliable and we place reliance upon the same.

The third and last eye-witness Sher Mohammad P.W. 3 also rushed from his field to the field of Badri Prasad on the alarm of the deceased. P.W. 3 further testified that besides him, Mushtafa Khan @ Mushtaq P.W. 2 and Yasin had also arrived there. P.W. 3 claims to have seen the appellant inflicting knife injuries to the deceased Alla Bux in the field of Badri Prasad. On seeing the witness, the appellant made good his escape. Even Abdul Razzak P.W. 1 who was at a short distance had also arrived and all of them gave a chase to the appellant but the appellant escaped. Thereafter, the deceased Alla Bux was rushed to the hospital for treatment by Abdul Razzak. P.W. 3 clearly deposed in his evidence at trial that he had witnessed the appellant inflicting knife blows to the deceased Alla Bux in the field of Badri Prasad. P.W. 3, at the time of the incident, i.e., 7:00 a.m., was at his field when he heard noise and cries of Alla Bux from field of Badri Prasad and then he saw the whole incident. P.W. 3 was suggested on behalf of the appellant that the witness had teased the wife of the appellant Sanaullah prior to the occurrence but the witness denied the suggestion. The witness further denied defence suggestion that he wanted to establish illicit relation with wife of the appellant Sanaullah. Thus, a vain attempt was made on behalf of the appellant to create a probability of some kind of illicit relation with wife of the appellant to him. P.W. 3 also denied the defence suggestion that a case of theft and dacoity was proceeded against him. The witness was suggested that he did not witness the incident and the deceased Alla Bux was murdered in the dark by some unknown murderers. The suggestion was denied by P.W. 3.

Sher Mohammad P.W. 3 in his cross-examination gave out position of the field of Badri Prasad from his own field as twenty paces to the North and thus P.W. 3 was able to witness the attack made upon the deceased Alla Bux. Since field of Mushtafa Khan @ Mushtaq P.W. 2 adjoined the field of P.W. 3, therefore. Mushtafa Khan @ Mushtaq P.W. 2 was natural and probable witness of the occurrence. Since P.W. 3, at the time of the incident, was present in the field situated in the close vicinity of the place of the incident namely field of Badri Prasad, P.W. 3 on the cry of the deceased rushed towards the deceased and the witness should not have taken any time to reach the spot and to have a clear view of the murderous attack upon the deceased Alla Bux and, therefore, maize crop could, by no means, have been an obstruction in his viewing the occurrence. P.W. 3 clearly stated that the appellant gave two or three knife blows upon the deceased Alla Bux and the deceased Alla Bux sustained knife blows while standing. P.W. 1 and P.W. 3 both had given size of the knife including handle of the said knife. P.W. 3 clearly denied having any relationship with the informant Abdul Razzak but P.W. 3 helped in taking the victim to the hospital. P.W. 3 also repudiated the defence suggestion that he demanded Rs. 2,000 from the appellant two years ago and on his refusal, he had threatened him.

Learned defence counsel relied upon the first information report No. 19 lodged against Sher Mohammad P.W. 3 on 13.1.1980 under Sections 395 and 397, I.P.C. which was proved as Ext. and Kha-1 and assailed testimony of P.W. 3 saying that P.W. 3 was arrayed as an accused in that case. Constable Rajeshwar Prasad D.W. 1, who proved the F.I.R. Ext. Kha-1, in his cross-examination admitted that final report was submitted in the first information report No. 19 Ext. Kha-1 which means that the first information report lodged against P.W. 3 turned out to be false and, therefore, no stigma attached against P.W. 3 nor it can ever be argued that he was a man of shady character. A close and careful scrutiny of the testimony of Sher Mohammad P.W. 3 establishes that he was present at the spot at the date and time of the occurrence and he was quite natural witness having his field close by the place of the occurrence and having no enmity against the appellant nor any affinity for the deceased. We find the testimony of P.W. 3 creditworthy and reliable in the facts and circumstances of the case.

Thus, we find testimonies of the informant Abdul Razzak P.W. 1, Mushtafa Khan @ Mushtaq P.W. 2 and Sher Mohammad P.W. 3 as natural, reliable and creditworthy. They remained quite unshaken during cross-examination. No circumstance has been argued on behalf of the appellant to create any doubt about veracity or creditworthiness of the testimonies of any of these eyewitnesses, Their evidences are in conformity suffering from no material discrepancies or contradictions.

Apart from testimonies of these three eye-witnesses, there is dying declaration of the deceased, Ext. Ka-16 which was recorded by Shri Bahadur Singh. Executive Magistrate P.W. 8 on 23.10.1981 at 6:00 p.m. Before recording the dying declaration, the Executive Magistrate P.W. 8 obtained a certificate about physical and mental condition of the victim Alla Bux from Dr. R.R. Tyagi P.W. 9, who was posted as Emergency Medical Officer at District Hospital, on 23.10.1981. Before recording dying declaration of the victim Alla Bux, the victim was medically examined by the doctor P.W. 9 who had found the victim in full consciousness and in proper condition to give the statement. Thus there is no reason to disbelieve the dying declaration Ext. Ka-16 of the victim Alla Bux. The victim Alla Bux was physically and mentally fit to give his statement and remained in full consciousness during the time his dying declaration was recorded. According to the dying declaration of the victim, it was the appellant Sanaullah who gave knife blows to the victim as some dispute regarding sale-agreement of the house of the appellant was going on at that time.

The other corroborating evidence on record is memo of taking blood stained clothes of the victim by the police in possession and kurta worn by the victim at the time of the incident having many cut marks of knife. Besides blood stains, cut marks of the knife on the kurta of the deceased further corroborate the prosecution version. The statement of the victim Alla Bux recorded by the Investigating Officer u/s 161, Cr.P.C. (Ext. Ka-4) was also proved by the Investigating Officer through his evidence at trial. The statement of the victim Ext. Ka-4 fully corroborates the prosecution case in all details.

The evidence of the two advocate witnesses D.W. 2 and D.W. 3 is that D.W. 3 proved notice given by him on behalf of the deceased Alla Bux to the appellant and reply to the notice given by D.W. 2 as per instructions of the appellant to the deceased Alla Bux. We have considered the effect of notice and reply to the notice while dealing with the motive for the murder. There was sufficient motive for the appellant to have committed the murder of the deceased Alla Bux. It is evident from evidence that the appellant Sanaullah executed agreement for sale of his own house in favour of the deceased Alla Bux for a certain consideration of money and the time for executing the sale deed was settled between them. The appellant obtained some amount as earnest money from the deceased Alla Bux at the time of the registration of the sale agreement. The sale agreement was registered according to the provisions of the Indian Registration Act. The appellant inspite of repeated requests made by the deceased Alla Bux did not execute the sale deed of his house in favour of the deceased Alla Bux within the period of limitation provided. The appellant neither executed sale deed of his house nor returned earnest money obtained by him from the deceased. Thus, there was sufficient motive and the prosecution successfully proved the said motive.

The submission of the learned counsel for the appellant that evidence of the informant Abdul Razzak P.W. 1 being brother of the deceased Alla Bux is not reliable, is not acceptable to us. A close and careful scrutiny and analysis of the testimony of P.W. 1 shows his testimony natural and trustworthy, further corroborated by his oral F.I.R. His evidence cannot be eschewed only on account of his relationship with the deceased Alla Bux. The next contention of the learned counsel for the appellant is that evidences of P.W. 2 and P.W. 3 are not reliable as they were chance witnesses. We are unable to accept this contention also because P.W. 2 and P.W. 3 each had field in the vicinity of the spot namely field of the Badri Prasad and they had every occasion to reach the spot particularly when they were going towards field or were at their fields. P.W. 2 and P.W. 3 reached the spot which was corner of the field of Badri Prasad and their presence at the relevant time was quite natural and probable and they could by no stretch of imagination be termed as chance witnesses.

In Raju alias Rajendra Vs. State of Maharashtra, , it was observed by the Hon''ble Apex Court that where incident takes place on a public road, passers-by would be the best witnesses and rejection of their evidence on ground that they were chance witnesses is not justified. It has also observed that conduct of the witness in not reporting the matter to the police till examined by the Investigating Officer on the following day does not render his testimony unreliable.

After a close and careful analysis of the above evidence, we agree with the findings recorded by the trial court vide impugned judgment. There is no cogent reason to distract from them. The conviction of the appellant vide impugned judgment recorded by the trial court is well merited and well founded leaving no doubt about involvement of the appellant in this case. The presence and participation of the appellant in this murder case on the day, time and place of the occurrence is established and proved beyond any shadow of reasonable doubt. The eye-witnesses have given truthful version of the prosecution story and their evidence is further strengthened by the medical evidence. The statements of the eyewitnesses conform to each other, suffer from no major or material contradictions. The presence of the eye-witnesses on the date, time and place of the incident is established beyond doubt. The first information report in this case was lodged without any consultation or deliberation and there is no chance of any false implication of the appellant.

We had been taken through the entire record by the learned counsel for the parties. In view of the above meticulous analysis of the whole evidence available on record, we do not find any ground, on the basis of which we may reach conclusion that any of the findings recorded by the trial court is improbable or does not require affirmation. We do not see any cogent reason to interfere with the judgment and order dated 26.7.1982 passed by IVth Additional Sessions Judge. Bulandshahar, recording conviction and sentence of the appellant. Consequently, the impugned judgment and order is hereby affirmed. The appeal filed by appellant lacks merit and is, accordingly dismissed.

Since the appeal is dismissed, the bail bonds and surety bonds of the appellant are cancelled. The appellant is directed to surrender before the trial court immediately to serve out the remaining part of the sentence awarded to him. If he falls to surrender within one month, the trial court is directed to get the appellant arrested and send him to jail for serving out the remaining part of the sentence awarded by the trial court by means of the impugned judgment and order dated 26.7.1982.

Let a copy of this order be sent to the trial court forthwith for compliance.