Javed vs State of U.P.

Surendra Kumar, J.—This criminal appeal has been preferred by the accusedappellant Javed challenging the judgment and order dated 23.7.1983 passed by the Sessions Judge, Rampur in Session Trial No. 197 of 1982State of U.P. Vs. Javed, whereby the accusedappellant had been convicted under Section 302 I.P.C. and was sentenced to imprisonment for life thereunder.

The facts of the prosecution case, as narrated by Munney Khan (first informant and PW1), son of Ikram Khan, resident of Mohalla Mom Ka Tazia, Police Station Kotwali, District Rampur, in his written report Ext. Ka1, disclosed during investigation and also during evidence recorded in the trial court, are that the marriage of his sister Shama Parveen was settled with the accusedappellant Javed four months ago but the marriage could not be solemnized due to some differences between two sides regarding payment of some items including money. Thus, the first informant refused to marry his daughter Shama Parveed with the appellant Javed. Thereafter the marriage of Shama Parveen was performed with the deceased Mohd. Qasim, son of Dulah Khan, resident of Mohalla Sarai Tareen, Police Station Sambhal, District Moradabad on 15.8.1982. The marriage of Shama Parveen with the deceased Mohd. Qasim infuriated the appellant Javed, giving rise to enmity with the first informant as well as Mohd. Qasim. Prior to the murder of Mohd. Qasim, husband of aforesaid lady Shama Parveen, the appellant Javed visited the house of first informant several times and threatened that he would not let alive the deceased Mohd. Qasim. The appellant also visited to the locality of the first informant. 34 days prior to the murder of Mohd. Qasim in the present incident, Mohd. Qasim had come in his Sasural at the house of the first informant. On 13.10.1982 at about 7.15 A.M., the appellant armed with Tamancha came inside the house of the first informant through the open door and after entering into the room, where the deceased Mohd. Qasim was lying, placed Tamancha at the mouth/face of the deceased and fired, resulting into instantaneous death of Mohd. Qasim at the spot. After committing murder of the deceased, the appellant immediately ran away and since the appellant was holding a Tamancha in his hand, due to fear, he could not be caught or nabbed. At the time of said murder, the first informant Munney Khan PW1, Riaz Ahmad (stepfather of the first informant), Smt. Shama Parveen (PW7), wife of the deceased and Saeeda Begum were present and they witnessed this incident of murder. When the appellant after committing the murder of Mohd. Qasim was coming out from the house of the first informant, the appellant was seen by his neighbour Zahid Khan PW8 and others.

Thus, the incident of murder took place on 13.10.1982 at 7.15 A.M. and the F.I.R. thereof was registered same day on 13.10.1982 at 7.45 A.M., within half an hour by Munney Khan (PW1), brotherinlaw/Sala of the deceased, after covering a distance of three furlongs, naming the appellant Javed as murderer, as Crime No. 361 of 1982, under Section 302 I.P.C. at Police Station Kotwali Rampur, District Rampur. H.C. Suraj Singh PW6 registered the F.I.R. on the basis of written report Ext. Ka1 and prepared chik report Ext. Ka3 and made reference thereof in Roznamcha Aam/G.D., Ext. Ka4. Special report of the incident was dispatched from the police station on 14.10.1982.

Retired S.S.I. Begraj Singh PW9, Investigating Officer, was the Police Officer in whose presence case was registered on 13.10.1982 at 7.45 A.M. He recorded the statement of first informant Munney Khan PW1 at the police station itself. Sri Kunwal Singh, Police Inspector, proceeded to the place of occurrence immediately and went to the spot, where PW9 after recording statement of Munney Khan also arrived. He found dead body of Mohd. Qasim on a cot/Palang in the room, conducted inquest on the dead body and prepared Panchayatnama Ext. Ka5, Photo Lash Ext. Ka6, Challan Lash Ext. Ka7 and report for postmortem Ext. Ka8. The clothes which were near the dead body, were bundled by him in a sealed packet and sample seal Ext. Ka9 was also prepared. The dead body was sealed and was handed over along with necessary papers to the constables Mulayam Singh Yadav PW3 and Talvinder Singh.

The dead body of the deceased Mohd. Qasim aged about 24 years, was taken by constable Mulayam Singh PW3 on 13.10.1982 and entrusted to Dr. K. Chandra PW2 at 4.00 P.M. in a sealed condition. PW3 identified the dead body when produced before Dr. K. Chandra PW2 . So long as the dead body remained in his custody, none was allowed to touch or tamper with the seal of the dead body. Dr. K. Chandra PW2 after postmortem of the dead body, delivered one sealed bundle of clothes and one envelope containing pellets to the constable Mulayam Singh PW3 and these sealed articles were produced by PW3 at the police station on that very day.

Dr. K. Chandra PW2, Medical Officer, District Hospital, Rampur performed autopsy on the dead body of the deceased Mohd. Qasim on 13.10.1982 at 4.00 P.M. and prepared postmortem examination report Ext. Ka2. As per postmortem examination report Ext. Ka2, the deceased Mohd. Qasim was aged about 24 years and about half day had passed since his death. The body was average built. Rigor mortis was present in both extremities. Postmortem staining was present over back and buttocks. Eyes were found closed. Clotted blood was present from both nostrils and ears over the face. The following single antemortem injury was found on the person of the deceased Mohd. Qasim:

"Firearm wound of entry 3 cm. x 3 cm. x brain cavity deep on the left side of face, 3 cm. below the outer angle of left eye. Blackening, charring and tattooing present."

On internal examination he found fracture of left frontal, parietal and temporal bones. The scalp over this region was echymosed. The membranes were lacerated and congested. The brain was lacerated. 20 pallets and one wad piece were recovered from the brain substance. Brain was found congested. The base of the skull was found fractured. There was effusion of blood in cranial cavity. In the opinion of Dr. K. Chandra PW2, the cause of death was coma as a result of antemortem firearm injury. As per cross examination of Dr. K. Chandra PW2, death of deceased might have occurred at 3.00 or 4.00 A.M. on 13.10.1982.

S.S.I. Sri Begraj Singh PW9, Investigator of the case, after conducting inquest on the dead body and entrusting the dead body to the constables for postmortem and after recording statements of Riaz Ahmad, Zarina Begum, Saeeda Begum and Shama Parveen, inspected the spot, prepared site plan Ext. Ka10 and found Dari on that Palang/cot, on which the deceased was lying, one Tehmad and one Chadar. All these articles were bloodstained which he took into possession. Even Niwad of the Palang was bloodstained, some blood had fallen on the cemented floor below the Palang. He took in his possession a piece of Niwad after cutting it and collected after scraping bloodstained cement from the floor and also plain cement from near that place. He sealed clothes and piece of Niwad in one bundle and the scrapped cement in two separate pots vide memo Ext. Ka11. Outside the house of Riaz Ahmad PW5 (fatherinlaw) of the deceased) on the road near culvert, he found a empty cartridge (Ext3), which this Investigating Officer took into possession through memo Ext. Ka12 and sealed the same at the spot. Thereafter this PW9 recorded the statements of other witnesses namely, Zahid Khan, Zafar Ali and others and searched for the appellant who was an absconder. This Investigating Officer raided the house of the appellant but the appellant was not found there nor any incriminating article was recovered from the house of the appellant. This PW9 on that very day at 7.30 P.M. came to the police station and deposited the bundle of sealed articles in the Malkhana/storeroom of the police station. He on 14th, 15th, 16th and 17th October, 1982 searched for the appellant but the appellant could not be traced out. On 20.10.1982, the appellant surrendered in the court. The Investigating Officer interrogated the accusedappellant in the lock up and he sought police remand of the accused appellant but his request was declined. PW9 after completing investigation, submitted charge sheet (Ext Ka13) against the accused appellant.

After submission of the charge sheet and furnishing of the copies of the relevant papers to the accused appellant, the case was committed by the Chief Judicial Magistrate, Rampur on 18.11.1982 to the court of Session for trial where it was registered as Sessions Trial No. 197 of 1982 and trial proceeded as sessions case.

The accused appellant Javed was charged by the Sessions Judge, Rampur under Sections 449 and 302 I.P.C. on 15.12.1982. The charges were read over and explained to the appellant, who pleaded not guilty and claimed to be tried on the said charges.

In order to prove the charges levelled against the accused appellant Javed, the prosecution examined first informant Munney Khan PW1 (brotherinlaw of the deceased), and Zafar Ali Khan PW4, scribe of the F.I.R. and also Panch of the inquest of the deceased. The prosecution also examined Riaz Ahmad PW5, fatherinlaw of the deceased, Smt. Shama Parveen PW7, wife of the deceased and Zahid Khan PW8, neighbour, as eye witnesses.

The prosecution in formal evidence examined Dr. K. Chandra PW2 who conducted autopsy on the dead body and proved postmortem examination report of the deceased Ext. Ka2. Constable Sri Mulayam Singh Yadav PW3 was examined to prove that dead body after being sealed at the spot was handed over to him and his companion Talvinder Singh along with relevant papers and the same was handed over by this PW3 to Dr. K. Chandra PW2 along with relevant papers, the dead body during his custody was not allowed to be touched by any body and seals of the dead body remained intact throughout. H.C. Sri Suraj Singh PW6 was also examined by the prosecution to prove that chik F.I.R. Ext. Ka3 was prepared by him on the basis of written report Ext. Ka1 and entry thereof was made in G.D. Ext. Ka4. The prosecution examined retired S.S.I. Sri Begraj Singh PW9, Investigating Officer of the case, to prove the steps taken and evidence collected during investigation. He proved the evidence collected by him during investigation and proved filing of charge sheet against the accused appellant Javed on finding sufficient evidence against him for trial.

The accused appellant Javed in his statement recorded under Section 313 Cr.P.C. admitted that one Smt. Rehana, another daughter of Riaz Ahmad PW5 and wife of Ameer Ahmad of his own village resided and there were 23 houses in between their houses. The accused also admitted that his mother demanded the hand of Shama Parveen for marrying her with the accused Javed. The marriage was initially settled but due to demand of jewellery by father of Shama Parveen, he (accused appellant) denied to marry Shama Parveen. The accused Javed denied other allegations of the prosecution on some facts expressing his ignorance. According to his statement, Shama Parveen wanted to marry him (accused appellant) in spite of his refusal to marry her and even after her marriage with the deceased, she wrote letters and the said letters were taken away by the police during attachment proceeding of his house. He also alleged his false implication due to enmity. According to the accused Javed, Shama Parveen in spite of her marriage with deceased, did not want to live with her husband (deceased) as behaviour of the deceased towards her was not proper. No defence evidence was adduced on behalf of the accused appellant in the trial court.

We have heard Sri G.S. Hajela, learned counsel for the appellants, Smt. Raj Laxmi Sinha, learned A.G.A. for the State respondent and perused the evidence available on record, in the light of the arguments advanced by learned counsel for both sides.

In the eye witness account, there is evidence of Munney Khan PW1, Zafar Ali Khan (PW4), scribe of the F.I.R., Riaz Ahmad PW5, Smt. Shama Parveen PW7 and Zahid Khan PW8.

Before discussing or analysing the evidence on record, a perusal of the evidence of the eye witnesses is necessary.

Zafar Ali Khan PW4 is scribe of the written report and prepared written report Ext. Ka1 at the dictation of Munney Khan PW1. This scribe proved that he wrote the facts as narrated to him by Munney Khan PW1 at the house of PW1. The scribe was called by Munney Khan PW1 to his house for writing report of the incident. This scribe when reached the place of occurrence, also made enquiries from Riaz Ahmad PW5, father of PW1 about the incident, who told him that the accused Javed had killed his soninlaw Mohd. Qasim and had run away. Since Munney Khan''s father was weeping and crying, written report was dictated by Munney Khan PW1. PW1 during cross examination at page 18, bolstered the same by stating that whatever he witnessed, he dictated it to Zafar Ali Khan and the same was written in the written report Ext. Ka1. Thus, it is evident that written report dictated by PW1 and scribed by PW4 at the dictation of PW1 contained all the facts, which were witnessed by PW1 at the time of the incident, which took place in one of the rooms of the house of first informant Munney Khan PW1.

The first informant Munney Khan PW1 in his evidence stated that accused Javed was resident of village Loha, in which village Ameer Ahmad, another Behnoi of this witness, was residing and the house of the accused was 23 houses away from the house of Ameer Ahmad. Saeeda Begum, elder sister of Shama Parveen was already married to Ameer Ahmad, resident of village Loha and the accused Javed used to visit the house of Ameer Ahmad. Shama Parveen used to visit the house of her Behnoi Ameer Ahmad along with her mother at several occasions and she knew about the accused Javed when Javed came to the house of her Behnoi Ameer Ahmad in village Loha during her stay there. Because of the connections with Ameer Ahmad, accused Javed used to come even to the house of Munney Khan in the city of Rampur, where Shama Parveen was living with her parents and brothers. Subsequently, negotiations for marriage of Shama Parveen with the accused Javed started at the instance of her Behnoi Ameer Ahmad. The marriage of accused Javed and Shama Parveen was settled. The marriage just thereafter regarding number of members of marriage party of the bridegroom in the marriage feast and also on ornaments etc. and other dowry items, was cancelled by father of Munney Khan PW1. The accused even thereafter used to come to the house of Shama Parveen and pressed for his marriage with her. Thereafter Munney Khan''s father got Shama Parveen married with deceased Mohd. Qasim on 15.8.1982. The murder of Mohd. Qasim was committed by accused Javed on 13.10.1982 at 7.15 A.M. at the house of first informant where the deceased had come 34 days prior to his murder when Shama Parveen was already at her parental house. This PW1 at that time was standing on the roof cleaning his teeth and he noticed the accused coming in the courtyard of the house. Seeing the accused Javed coming in the courtyard of the house, this PW1 came down stairs, by the time he reached there, the accused Javed was running back after making fire. This PW1 had seen Tamancha in the hand of accused when the accused was entering the courtyard/Sehanchi of the house of PW1 and also when the accused after making fire at the deceased was retreating. At the time of said murder, Riaz Ahmad, father of PW1, mother Smt. Zareena Begum and sister Shama Parveen and Saeeda, who were near the room of the murder of the deceased, reached that room in which Mohd. Qasim was lying and found Mohd. Qasim dead. Blood was coming out from the cheek of the deceased and wound was of the fire shot. This PW1 dictated the written report of the incident to PW4 and written report was prepared, which he carried to the Police Station Kotwali and delivered there. According to evidence of Munney Khan PW1, his mother Smt. Zareena Begum had married Riaz Ahmad PW5 after the death of her first husband Ikram. Saeeda Begum and Shama Parveedn are daughters of Smt. Zareena Begum from Riaz Ahmad and PW1 also lived in the same house with his stepfather. The accused Javed came in the locality of PW1 several times even after the marriage of Shama Parveen with the deceased Mohd. Qasim and every time the accused went away after threatening that he will kill Mohd. Qasim, husband of Shama Parveen.

Munney Khan PW1 deposed that he also used to go to village Loha to the place of his stepsister Smt. Rehana and Shama Parveen also used to go there. At times Shama Parveen also used to live at Loha at the house of Smt. Rehana for 5 to 10 days, when accused Javed used to visit the house of Smt. Rehana. The accused Javed also used to come to their house from Loha when Smt. Rehana used to send any message or article through accused. Subsequently, the accused sometimes used to visit the house of PW1 at Rampur even without any work and without any message from Smt. Rehana. The marriage of accused with Shama Parveen was settled but broken immediately thereafter as the family members of accused Javed had started saying that particular number of Baraties/marriage party would attend the marriage party and particular quantity and kind of food would be served in the marriage feast. These talks about breaking of the relationship took place with Javed''s mother, uncle and sister as they had settled the marriage. According to evidence of Munney Khan PW1, Shama Parveen had no relationship of any kind whatsoever with the accused Javed. Qasim and Qasim''s family were aware about the earlier settlement of marriage between Shama Parveen and accused Javed and also breaking of the said settlement. The family members of the deceased Mohd. Qasim Khan were also aware that the accused Javed used to visit the house of first informant and Shama Parveen used to go to Loha at the house of her sister. Munney Khan PW1 clearly denied the defence suggestion that the accused Javed refused to marry Shama Parveen because Munney Khan had misbehaved with the guests who had come for engagement /betrothal ceremony. It is further evident from the testimony of Munney Khan PW1 that at the time of the incident of this murder, Nisar and Hanif were not at home and this PW1 himself lived with his family in the room situated on the roof of the house. Nisar lived in the ground floor room of the house. Whenever Shama Parveen and her husband deceased Mohd. Qasim came at the house of the first informant, Nisar used to sleep in the Dalan/courtyard of the house. On the day of incident, this PW1, his wife and children had got up early in the morning and children used to go to school those days at 6.00 or 6.30 A.M. The children had gone to the school before this occurrence occurred. Munney Khan PW1 also deposed that when first of all his eye fell upon the accused from the roof where he was cleaning his teeth, the accused was entering the gate of Sehanchi/courtyard and at that time, his father, mother and sister Shama Parveen were in the Dalan. Shama Parveen had reached there with tea which she was offering to her father. The murder took place in the bigger room which is in southern side of the Dalan. The witness recognized the accused Javed when Javed entered into the house of the witness and just on seeing Javed entering the house, PW1 came down within one or two minutes. The witness on reaching down stairs, heard the fire shot and immediately then saw the accused running away with his pistol from that room where the deceased Mohd. Qasim was sleeping. The witness clearly deposed that he could not chase the accused as the accused was armed with revolver, immediately then the witness went to the room where the deceased was lying dead on a cot/Palang. PW1 denied the defence suggestion about antetiming of the F.I.R. of this murder case after consultation with police and legal advice. The witness also denied defence suggestion to the effect that marriage of Shama Parveen with the deceased Mohd. Qasim was performed against the will of Shama Parveen or that Shama Parveen was keen to marry accused Javed. PW1 further deposed that on the day following the marriage of Shama Parveen with the deceased, they had brought her to their home for the purpose of Chauthi ceremony (fourth day ceremony). The witness further denied that thereafter Shama Parveen was not willing to go with her husband Mohd. Qasim and she was forced to go again to the house of her husband Mohd. Qasim. The witness further denied that Shama Parveen humiliated Mohd. Qasim and left the house of her husband and came to her parental home. PW1 also denied the defence suggestion that he did not see the accused Javed either entering or going out of the house and the accused was falsely implicated in this case.

Riaz Ahmad PW5, fatherinlaw of the deceased and Smt. Shama Parveen PW7, wife of the deceased, also reiterated and supported the prosecution story as narrated by Munney Khan PW1 in the trial court. According to evidence of Riaz Ahmad PW5, his elder daughter Smt. Rehana was married with Ameer Ahmad in village Loha. Accused Javed was also a resident of the same village Loha and used to come to the house of his elder daughter Smt. Rehana, which was in the same vicinity of village Loha. The accused Javed also used to come to the house of this witness. This witness was suggested by his soninlaw Ameer Ahmad to marry Shama Parveen with accused Javed and thereafter the mother and uncle of the accused came to the house of this witness with this proposal. The witness became ready to perform the marriage of Shama Parveen with accused Javed and the witness sought one day time to give reply. The mother and uncle of the accused Javed were ready and willing to perform Mangni/engagement /betrothal ceremony on that very day. On the next day, they stated that the witness will have to feed a Barat/marriage party of five hundred persons and will have to serve vegetarian and nonvegetarian food and they also told the articles to be given in the dowry. Since the witness was unable to fulfil these demands and these demands were beyond his capacity, the witness refused for the said marriage. Thereafter the accused Javed used to come to the locality of the witness and accused told several persons to have his marriage settled with Shama Parveen to which the witness did not agree. After about 78 days of the cancellation of the proposed marriage, this PW5 received a message from his wife''s brother Dulah Khan proposing marriage of the deceased Mohd. Qasim with his daughter Shama Parveen. The witness gave his consent and Nikah of Shama Parveen with the deceased Mohd. Qasim took place on 15.8.1982. After this marriage, the accused Javed started nursing a big grudge against him. The accused Javed used to come to the house of the witness and gave threat that he will kill the deceased Mohd. Qasim, husband of Shama Parveen. The witness came to know about these threats by accused when the witness came back to his home. According to testimony of this PW5 Riaz Ahmad, his soninlaw deceased Mohd. Qasim had come to the house of the witness 34 days earlier and on 13.10.1982 around 7.15 A.M. when the witness and his wife Zarina Begum were sitting in Dalan of the house, his elder daughter Saeeda was washing utensils in the courtyard, Shama Parveen had brought tea for serving the same to this witness and other family members. Munney Khan PW1 was cleaning his teeth with Datun standing on the roof of the house. The deceased Mohd. Qasim was sleeping inside the nearby room of the house. When all of a sudden on hearing some commotion, the witness saw the accused Javed coming in the courtyard from the gallery and entering Sehanchi. The witness objected to the accused asking why he had come there, immediately thereafter the accused Javed entered into the room in which the deceased was lying and fired a shot from Tamancha, after placing the same on the left cheek of the deceased Mohd. Qasim. This PW5 is an eye witness of this incident of murder by accused Javed by firing Tamancha at the deceased from close range. Tamancha was placed by the accused on the left cheek/face of the deceased and then fire shot was made by him. The place of incident was just in front of the place where this PW5 and his other family members were sitting and he had seen the incident. The witness just then entered the room but the accused Javed succeeded in running away from the place with Tamancha and Mohd. Qasim was found dead in the room. According to evidence of Riaz Ahmad PW5, Shama Parveen''s engagement ceremony never took place with the accused Javed but negotiations started and negotiations came to an end before any engagement ceremony. During cross examination, this PW5 stated that he had told about threats given by the accused Javed to the lawyer in the same locality but the lawyer did not advise any action as the said action would further increase the enmity.

In support of the prosecution story, there is evidence of Smt. Shama Parveen PW7, wife of the deceased. According to her evidence, the accused Javed used to come to the house of her elder sister Rehana at Loha where the accused also resided in the vicinity. The witness used to go to her sister''s house along with her mother and there she had seen the accused and in this way, she knew the accused Javed. The talks of her marriage with Javed had taken place but it broke down. Thereafter proposal of her marriage came from Mohd. Qasim and her marriage took place with Mohd. Qasim about 8 � months prior to the murder of her husband. 34 days prior to this occurrence, her husband Mohd. Qasim was at her father''s house at Rampur. She was also at her father''s house and it was 7.007.15 A.M., her husband Mohd. Qasim was sleeping inside the room, her parents were sitting in Verandah, her elder sister Saeeda was washing utensils at the tap and PW7 was serving tea to her parents in Dalan. Her brother Munney Khan was doing Datun (cleaning teeth) standing on the roof. At that time, the accused Javed entered the courtyard and through Sehanchi/Verandah went inside the room where her husband was lying. The accused Javed keeping Tamancha on the cheek of her husband fired and went away through that very passage. She and others went inside the room and saw that her husband Mohd. Qasim had died. According to cross examination of Shama Parveen, she never remained at her sister''s house at Loha alone but she stayed there even upto 46 days along with her mother. During period of her stay at her sister''s house, neither she talked to Javed nor Javed talked to her. She denied that she was keen to marry accused Javed. She further denied that her marriage with Mohd. Qasim took place without her consent. She is illiterate. She can neither read nor write Hindi. She admitted that she can not read or even write Urdu but she can only write her name. She clearly admitted that she had written her name on the Nikahnama when the same was performed with the deceased Mohd. Qasim. She also denied her writing or signature on the letter (Ext2) allegedly written by her to the accused. According to evidence of Shama Parveen PW7, her Mangni/ engagement ceremony had taken place with the accused Javed but on the very next day, Mangni/engagement ceremony was broken. After marriage with the deceased Mohd. Qasim, she went to Sambhal at Mohd. Qasim''s place and next day she returned to her father''s place as Nisar etc. had gone to call her for Chauthi. Again after 67 days, her husband Mohd. Qasim and his family members came for her Vidai and following day she left with them for Sambhal. She clearly denied that she never agreed to go to Sambhal at her husband''s place or she was forcibly sent to Sambhal. She and her husband Mohd. Qasim had slept in the room in the night preceding the murder of her husband. She got up early in the morning at about 6.45 A.M. when her husband was still sleeping. Her husband Mohd. Qasim used to get up at 8.00 or 8.15 A.M. Her husband had a brass bangles manufacturing machine at his place. According to evidence of Shama Parveen PW7, her parents were in Dalan when she was serving tea to them. When she was giving tea, the accused Javed arrived. The accused Javed armed with Tamancha entered inside the room and he committed the murder of her husband inside the room by making fire shot. She emphatically denied the defence suggestion that she did not permit her husband to lay his hand and she avoided her husband after Nikah. She further denied that she liked accused Javed and wanted to marry him. She also denied that her relations with her husband were strained after her husband came to know about settlement of her marriage with the accused. She clearly denied the defence suggestion that she had not seen the accused Javed on the day of the incident in her house and deposed falsely under pressure of her father and brother.

Zahid Khan PW8 is the eye witness, who had heard sound of fire from inside the house of Riaz Ahmad when the witness was going to the milk shop of Ashif to bring milk around 7.15 A.M. on the day of occurrence. This witness had also seen the accused Javed while Javed was coming out from the house of Riaz Ahmad and was going towards graveyard. When this witness had seen the accused Javed, Javed had a pistol in his hand. Just after two minutes, Munney Khan PW1 came out from his house who was told by witness that he had seen the accused Javed while the accused Javed was coming out from the house. The house of this witness was about 200 yards from the said graveyard. The place of incident i.e. house of Riaz Ahmad was about 4050 steps from the graveyard. Between the house of witness and house of Riaz Ahmad where the incident took place, there were 23 shops. This witness knew the accused for 24 days prior to the present incident. He had seen the accused Javed 56 times before this incident during those 24 days. The witness deposed that for the first time, he had seen the accused sitting near the shop in the same vicinity where the murder took place. This PW8 is an independent witness having no enmity with the accused and also having no affinity with the prosecution side. This PW8 clearly stated that since the accused Javed had Tamancha in his hand, he did not try to catch him nor he chased. The witness denied defence suggestion that he deposed falsely under the influence of Nisar and Nisar''s family.

The prosecution also tendered in evidence the reports of chemical examiner and Serologist which are Exts. C1 and C2. The report of chemical examiner shows that all the nine items namely, cement from the place of occurrence, pillow cover, one pillow cover printed, Dari, Tehmad, Chadar, Niwad piece, Banyan and underwear of deceased had blood spots. The report of Serologist confirmed that all these items had human blood. On items 2 to 6 blood was of A.B. Group.

Before arriving at any conclusion, it is necessary for us to consider the merits of the submissions raised by learned counsel for the rival parties.

The first submission of the learned counsel for the appellant is that the F.I.R. of the incident was not promptly written otherwise it must have reached the Chief Judicial Magistrate prior to 20.10.1982, as the Chief Judicial Magistrate was competent to take cognizance of the offence. A perusal of the evidence on record negates this submission.

Section 157 of the Code of Criminal Procedure, 1973 deals with procedure for investigation. According to which, an officer in charge of a police station, if on receipt of an information or otherwise, has reason to suspect the commission of an offence which he is empowered under Section 156 Cr.P.C. to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as may be prescribed by the State Government, to proceed to the spot and to investigate the facts and circumstances of the case. The purpose for forthwith sending the report to the concerned Magistrate is to keep the concerned Magistrate informed of the investigation of a cognizable offence so that he may be able to control the investigation and if required, to issue appropriate directions. Mere delay in the despatch of the F.I.R. itself is no ground to throw away the prosecution case in its entirety. Sending the report to the concerned Magistrate is a circumstance which provides a basis to raise suspicion that the F.I.R. is the result of consultation and deliberations and it was recorded much later than the date and time mentioned in it, and discloses that the investigation is not fair and forth right. This view was taken in Swati Ram Vs. State of Rajasthan (1997) 2 Crimes 148 (Raj.).

This submission raised by learned counsel for the appellant lacks merit because a perusal of the chik F.I.R. of this case makes it evident that special report of the incident as required under Section 157 of the Code of Criminal Procedure, 1973 was despatched from the police station on 14.10.1982, the next day of lodging of the F.I.R. at the Police Station Kotwali Rampur. This submission is also unworthy of acceptance because it is difficult to believe that the F.I.R. of murder case would remain unwritten for a week. The F.I.R. of this incident of murder was lodged within half an hour of the said murder by first informant after measuring a distance of three furlongs from the place of incident to the police station, excluding every chance of lodging of the F.I.R. antetimed. The F.I.R. was lodged immediately after the murder without any consultation, deliberation or embellishment. The investigation of this case started promptly and statement under Section 161 Cr.P.C. of the first informant was recorded at the police station just after lodging of the F.I.R. The Investigating Officer reached the place of occurrence without any delay and started investigation. There is no delay in recording the statements of the witnesses or in conducting investigation. After lodging of the F.I.R., inquest on the dead body was promptly conducted on 13.10.1982, the day of the incident itself. The inquest report (Ext. Ka5), Photo Nash (Ext. Ka6), letter (Ext. Ka8) and other papers prepared for sending dead body for post mortem examination, contained crime number as 361 of 1982 and other required details. Autopsy on the dead body of the deceased Mohd. Qasim was also performed on 13.10.1982 at 4.00 P.M., the day of the incident of murder. Postmortem examination report (Ext. Ka2) was also prepared on 13.10.1982 at 4.00 P.M. and when the dead body was received by doctor PW2, copy of the F.I.R. and other relevant papers were received by him. It is fully established from the evidence on record that the F.I.R. was lodged at the date and time stated by prosecution namely, 13.10.1982 at 7.45 A.M. and copy thereof was sent along with sealed dead body of the deceased Mohd. Qasim to the doctor and all other papers in this regard were in existence before start of autopsy on the dead body. Thus, this contention of the learned counsel for the appellant is meritless and is repelled.

The next contention of the learned counsel for the appellant is that the accusedappellant has been falsely implicated in this murder case due to the reason that his proposed marriage with Smt. Shama Parveen was revoked.

The prosecution case since the beginning is that negotiations for marriage of appellant with Smt. Shama Parveen PW7 were held and when the family members of the appellant made certain terms and conditions, like offering food to more than 500 persons of the marriage party and that too serving them vegetarian and non vegetarian food both and demand of certain other items in dowry, the proposed marriage was within no time revoked. Even after the revocation of the proposed marriage, the appellant used to visit the locality where the house of the first informant PW1 and Smt. Shama Parveen was situated. He extended repeated threats to her brother Munney Khan PW1 and father Riaz Ahmad PW5 warning them of dire consequences, if they failed to get the marriage of Smt. Shama Parveen performed with him. Smt. Shama Parveen was got married to Mohd. Qasim on 15.8.1982 and due to appellant''s infatuation towards Smt. Shama Parveen, the appellant committed murder of Mohd. Qasim, husband of Smt. Shama Parveen within two months of their marriage. The evidence on record further establishes that the appellant committed the murder of Mohd. Qasim, husband of Smt. Shama Parveen out of jealousness, infuriation, exasperation or so called frustration. An attempt has been made on behalf of the appellant that the appellant himself revoked the marriage with Smt. Shama Parveen as his guests in the engagement ceremony were ill treated and the appellant was not keen for marriage with Smt. Shama Parveen, rather Smt. Shama Parveen herself had immense infatuation for accused appellant Javed and she wanted to marry him and she was against her marriage to deceased Mohd. Qasim as the said marriage was performed against her wishes and will. A perusal of the evidence negates all these contentions. The accusedappellant had sufficient motive to commit the murder of Mohd. Qasim within two months of deceased''s marriage with Smt. Shama Parveen PW7, when the deceased was in his inlaws house, by placing Tamancha or pistol on the face of the deceased and making fire shot. Firearm injury caused by fire shot proved fatal and resulted in instantaneous death of deceased Mohd. Qasim, therefore, the contention of false implication of the appellant and absence of motive for the appellant to commit murder are bereft of merits and are unworthy of acceptance. A close and careful scrutiny of the evidence on record takes us to the conclusion that there is no possibility, even remotely of the false implication of the accusedappellant in this case of murder and it was the appellant who had committed the said murder by firing with a firearm on 13.10.1982 at 7.15 A.M. at the house of first informant PW1 and the incident was witnessed by PW1, PW5, PW7 and PW8.

The next contention of the learned counsel for the appellant is that there was illicit intimacy between the accusedappellant and Smt. Shama Parveen prior to her marriage with the deceased. This contention is also not supported by any evidence on record, even this suggestion was not put to the prosecution witnesses. It is evident from the evidence on record that Smt. Shama Parveen did not talk to the accused nor accused ever talked to her during her stay at the place of her sister in village Loha where the accused resided and used to visit. There is no evidence, even no whisper in the evidence to indicate any illicit relations between the accusedappellant and Smt. Shama Parveen. The accused could not bear the trauma of the marriage of Smt. Shama Parveen with the deceased Mohd. Qasim and he committed murder of Mohd. Qasim, husband of Smt. Shama Parveen, within two months of their marriage. A futile attempt was made on behalf of the appellant by inviting our attention to the letter (Ext.2) allegedly written by Smt. Shama Parveen to the accused, but she had clearly denied that the said letter (Ext.2) was ever written by her. Smt. Shama Parveen PW7 admitted in her evidence that she is illiterate and could write only her name in Urdu and also admitted her signature on the Nikahnama with the deceased. No evidence was adduced by accusedappellant in the trial to establish that the said love letter was written by her or was in her handwriting.

The next contention of the learned counsel for the appellant is that Munney Khan, first informant PW1, brotherinlaw of the deceased, Riaz Ahmad PW5, fatherinlaw of the deceased and Smt. Shama Parveen PW7, wife of the deceased, are related and interested witnesses and their testimony does not inspire any confidence and their evidences are unreliable.

Learned A.G.A. per contra, has submitted that since the murder took place in the house of these eye witnesses, they are natural and truthful witnesses and their presence in their own house on 13.10.1982 at 7.15 A.M. is natural and probable. Their testimony cannot be discarded just on the ground of their being interested or related witnesses.

It is settled by a catena of judgments of the Apex Court that testimony of any interested or related witness cannot be discarded merely because of their being related or interested witnesses but the same requires cautious and deep scrutiny by Court. We have cautiously, carefully and deeply analysed the evidence of the aforesaid eye witnesses. We find no cogent or sufficient substance to disbelieve their testimony. Their presence on the date, time and place of the incident is fully established and proved by their evidences and further corroborated by testimony of Zahid Khan PW8, a witness of their neighbourhood. Ocular testimony is further corroborated by medical evidence and by reports of Chemical Examiner and Serologist (Exts. C1 and C2).

The last contention of the learned counsel for the appellant regarding the fact that these eye witnesses did not make any attempt to apprehend the accusedappellant when he was running away from their house after committing the murder of Mohd. Qasim and the conduct of the eye witnesses is unnatural and improbable, is also not acceptable. We have again and again pondered over this submission but there is no force in this submission. It has come in the evidence of these eye witnesses that since the accusedappellant was armed with pistol or Tamancha at the time of murder and while fleeing from there after committing murder, he was waving his Tamancha and they could not hotly chase him. When the appellant was coming out from the house with the said firearm after committing murder, he was spotted by their neighbour Zahid Khan PW8. The conduct of the eye witnesses cannot be said to be improper in the facts and circumstances of the case.

On the point of interested witnesses, the Hon''ble Supreme Court in State of U.P. Vs. Jagdeo, 2003 Cri.L.J. 844 (S.C.) observed that only on the ground of interested or related witnesses, their evidence cannot be discarded. Most of the times eye witnesses happen to be family members or close associates because unless a crime is committed near a public place, strangers are not likely to be present at the time of occurrence.

In Har Singh M. Vasava Vs. State of Gujrat, AIR 2002 Supreme Court 1212 it was observed by the Hon''ble Apex Court that mere relationship between complainant/tenant and deceased/landlord cannot be stressed to hold that the complainant was interested witness in the case of murder of landlord. The murder took place in the house of the complainant, a tenant of deceased and the F.I.R. was lodged promptly by the complainant. The evidence of complainant, who was eye witness and natural witness, which was corroborated by medical evidence, the other witnesses present on the place of occurrence were declared hostile. This fact would not render the testimony of complainant inadmissible. Further his failure to intervene to save life of the deceased cannot be a ground to discard his testimony particularly, when he was not asked as to what restrained or refrained from his intervening. The conviction of accused in the case in the circumstances was not interfered by the Hon''ble Apex Court.

In Mst. Dalbir Kaur Vs. State of Punjab, 1976 Cr.L.J. 418 (S.C.) following observations were made:

(i) Interested witness: Relatives who are natural witnesses are not interested witnesses and their testimony can be relied upon.

The term ''interested'' postulates that the person concerned must have some direct interest in seeing that the accused is somehow or the other is convicted either because he had some animus with the accused or for some other reason. In the reported case the incident took place at mid night inside the house, the only natural witnesses who could be present to see the assault were the persons present in the house at that time. No outsider can be expected to have come at that time because the attack was sudden. Moreover a close relative who is a very natural witness cannot be regarded as an interested witness.

(ii) Witness gained over by accused not examined by the prosecution held withholding or keeping back of witnesses is not unfair and adverse inference cannot be drawn. There is no duty on the prosecution to examine witnesses who might have been gained over by accused and even if those witnesses are not produced by the prosecution, there is nothing to stop accused from applying to the court for examining such witnesses.

(iii) witness who gives details with absolute accuracy is trustworthy.

In Yakub Ismail Bhai Patel Vs. State of Gujrat, 2004 Cr. L.J. 4205 (S.C.) and also 2004 Cr. L.J. 3118 (S.C.), it was observed by the Hon''ble Supreme Court that human behaviour or conduct of a witness depends upon facts and circumstances of each given case and there is no set rule of natural reaction. The evidence of any eye witness cannot be discarded merely on the ground that he did not react in any particular manner in a particular situation. In Yakub Ismail Bhai Patel''s case, the accused inflicted injuries on vital organs of the deceased, eye witnesses, friends of the deceased present on the spot did not go forward to help deceased at the time of incident and did not stop the accused. The Hon''ble Supreme Court observed that these cannot the circumstances to disbelieve testimony of the said witnesses, particularly when rest of testimony of the witnesses is tested with cross examination.

In State of Rajasthan Vs. Smt. Kalki, 1981 Allahabad Criminal Rulings, 254 (S.C.) it was held that in the depositions of witnesses, there are always normal discrepancies however, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory, due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence and the like material discrepancies are those which are not normal and not expected of a normal person.

Regarding conduct of prosecution witness, the Hon''ble Supreme Court in Rana Pratap and others Vs. State of Haryana, 1983 C.A.R., 379 (S.C.) observed that to doubt the presence of witnesses because they did not go to rescue the deceased was unnatural because no set rule of natural reaction is made. Every witness reacts in his own special way.

In Chand Khan Vs. State of U.P., AIR 1995 Supreme Court 2140, it was observed that minor discrepancies in evidence of eye witnesses who have given convincing and reliable evidence with regard to details and manner of assault will not affect their evidentiary value. Absence or insufficiency of motive is immaterial if the incident is proved by evidence of eye witnesses.

The Hon''ble Apex Court in State of Rajasthan Vs. Arjun Singh and others, (2011) 9 Supreme Court Cases 115 has recently observed that non recovery of pistol or cartridge namely crime incriminating material or other articles does not detract the case of the prosecution where clinching and direct evidence is acceptable. Likewise, absence of evidence regarding recovery of used pellets, bloodstained clothes etc. cannot be taken or construed as no such occurrence had taken place. In this case law, regarding motive, it has been observed that motive for doing a criminal act is generally a difficult area for the prosecution to prove since one cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Even in the absence of specific evidence as to motive, in view of the fact that in the case on hand, two persons have been killed and one sustained injuries due to firearms, the case of the prosecution cannot be thrown out on this ground. It has further been observed in this case that the testimony of interested witnesses should not be rejected merely because witnesses are related to the deceased. Their testimonies have to be carefully analysed because of their relationship and if the same are cogent and if there is no discrepancy, the same are acceptable.

The Hon''ble Supreme Court in the case of Gosu Jairami Reddy and another Vs. State of A.P., 2011 Crl. L.J. 4387 (S.C.), has recently observed in paragraph No. 13 that it is settled by a series of decisions of the Apex Court that in cases based on eye witness account of the incident proof or absence of a motive is not of any significant consequence. If a motive is proved it supports the prosecution version. But existence or otherwise of a motive plays a significant role in cases based on circumstantial evidence.

The Hon''ble Supreme Court in the case of Atmaram and others Vs. State of Madhya Pradesh (2012) 5 SCC 738 has recently observed that the motive for commission of the offence which, of course, is not an essential but is a relevant consideration.

The Hon''ble Apex Court in Thoti Manohar Vs. State of A.P., 2012 (78) ACC, 511 (S.C.) in paragraph 24 thereof has held that if the occurrence partly takes place inside the house and partly outside it, the family members and the close relatives are bound to be the natural witnesses. By no stretch of imagination, it can be said that they are most natural witnesses. In paragraph 30 thereof it has further been observed that the minor discrepancies on trivial matters not touching the core of the matter cannot bring discredit to the story of the prosecution. Giving undue importance to them would amount to adopting a hypertechnical approach. The Court, while appreciating the evidence, should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of the prosecution case are to be ignored.

In Thoti Manohar''s judgment, it has further been held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person.

The Hon''ble Supreme Court in Masalti Vs. State of U.P., AIR 1965 SC 202, ruled that normally close relatives of the deceased would, not be considered to be interested witnesses who would also mention the names of the other persons as responsible for causing injuries to the deceased.

In Jai Prakash Singh Vs. State of Bihar and another, 2012 Crl. L.J. 2101 (S.C.) it has been observed by Hon''ble Supreme Court that the F.I.R. in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant''s version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question.

The presence of the eye witnesses on the date, time and place of the incident is fully established and proved by their evidences and further corroborated by testimony of Zahid Khan PW8, a witness of their neighbourhood. Ocular testimony is further corroborated by medical evidence and by reports of Chemical Examiner and Serologist (Exts. C1 and C2). The prosecution has absolutely succeeded to prove its case against the appellant beyond any shadow of reasonable doubt by the evidence of truthful and reliable eye witnesses, corroborated by medical evidence and ocular testimony of Zahid Khan PW8. The charge of murder of Mohd. Qasim levelled against the appellant is proved from the evidence on record. After analysing the evidence discussed above, we affirm and confirm the findings recorded by the learned trial Judge vide impugned judgment and order dated 23.7.1983 and there appears to be no reason to deviate from those findings. The conviction and sentence of the appellant as ordered by the trial court is hereby confirmed. The appeal is devoid of merits and is accordingly dismissed.

Since the appeal of the appellant Javed is dismissed, his bail bonds and surety bonds are cancelled. He is directed to surrender before the trial court immediately to serve out remaining part of the sentence awarded to him. If he fails to surrender, 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 23.7.1983.

Let a copy of this judgment be certified to the trial court for its intimation.