Sardar Khan and Others vs State of Uttrakhand

Prafulla C. Pant, J.—These two appeals, preferred u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter referred as Cr. P.C.) are directed against the judgment and order dated 8th November, 1982, passed by learned I Ind Additional Sessions Judge, Nainital in Sessions Trial No. 233 of 1981, whereby the accused/Appellants Basaruddin, Sardar Khan alias Bholey Khan, Islam Khan (S/o Aslam Khan), and Islam Khan (S/o Sadi Khan) are convicted u/s 302 read with Section 34 and u/s 394 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). Each one of the convicts is sentenced to imprisonment for life u/s 302/34 of I.P.C. and rigorous imprisonment for six years u/s 394 of I.P.C. On said count, (under Section 394, I.P.C.) each convict is further directed to pay fine of Rs. 3,000. In default of payment, the defaulter is directed to undergo rigorous imprisonment for further period of one year.

Heard learned Counsel for the parties and perused the lower court record.

Prosecution story in brief is that Shiv Hari Sharma (deceased) and Radhey Raman (P.W. 3) were partners in a firm, which used to be run as M/s. Raman and Company, Kalibari, Bareilly. The said firm used to supply and sell pulses (daal). The supplies of daal was used to be made by the Firm on credit basis to various traders of Khatima, Tanakpur, Banbasa, Sitarganj etc., in District of Nainital (now Khatima is part of District Udham Singh Nagar). Accused/Appellant Basaruddin was proprietor of Firm M/s. Kamal Kirana Store, Khatima, who used to buy the pulses from M/s. Raman and Company on credit basis. Usually, on every Tuesday, Shiv Hari Sharma (deceased) used to go to Khatima, Banbasa, Tanakpur, Sitarganj to collect and realize the payment due from the traders. On 28.7.1981, when Shiv Hari Sharma (deceased) had gone to collect the price of the goods from the traders, Rs. 1,139 was outstanding against the accused Firm M/s. Kamal Kirana Store, Khatima run by the accused/Appellant Basaruddin. On said date, when the deceased demanded money accused (Basaruddin) paid only Rs. 20 on which there had been heated exchange of words between the deceased and the accused Basaruddin. Again on next Tuesday, i.e., 4.8.1981, Shiv Hari Sharma went from Bareilly to collect the dues from the traders but did not return back in that night. Family members of the deceased got anxious and on 5.8.1981, his brother Brahm Shankar Sharma (P.W. 1) went alongwith Radhay Raman (P.W. 3), one Pradeep Kumar, Dev Dutt Sharma, Vijay Nath and Suresh Baboo to Khatima by bus. They inquired about whereabouts of Shiv Shankar Sharma (deceased) from various Firms namely M/s. Sudesh Kumar Puran Chand Kirana Store, M/s. Durga Kirana Store, M/s. Ashok Kirana Store, M/s. Ram Gopal Munna Lal Kirana Store, M/s. Satya Narain Vinod Kumar Kirana Store and Rohela Kirana Store. All the above firms confirmed that Shiv Hari Sharma (deceased) did visit their shop on 4.8.1981 and took the payments. They came to know on inquiry from Virendra Prakash (P.W. 2) landlord of Kamal Kirana Store run by the accused (Basaruddin) that on 4.8.1981 at about 5 p.m., the deceased went to Kamal Kirana Store, Khatima. On this, complainant (Brahm Shankar Sharma) (P.W. 1) and Ors. went to Kamal Kirana Store, but the said shop was found locked. Thereafter, the complainant and his above associates tried to trace out Basaruddin in Banbasa, Tanakpur and other places, but he could not be found. Finally, the complainant (Brahm Shankar Sharma) (P.W. 1) gave a written report (Exhibit A-1) on 5.8.1981 at Police Station Khatima, at about 11.15 p.m. that his brother Shiv Hari Sharma is missing and it was also mentioned that there had been some quarrel with the owner of the Kamal Kirana Store about a week before. The complainant suspected some untoward incident might have taken place with the deceased. On this Assistant Sub-Inspector Radha Kishan Bahuguna (P.W. 11) alongwith Assistant Sub-Inspector Vikram Singh Bisht (P.W. 10) started making inquiry to trace out Shiv Hari Sharma (deceased) and tried to contact Basaruddin, who used to run Kamal Kirana Store. On 6.8.1981, when Basaruddin''s shop was found closed, the Police made efforts to find him out in Sahdaura (the village to which he belonged) and thereafter, they went to Rampura (within the limits of Police Station, Bhojipura, District Bareilly, where father-in-law of Basaruddin used to live, but Basaruddin could not be found out anywhere. Thereafter, the Police tried to trace Basaruddin in place of his brother-in-law in village Khanjanpur and there also he could not be found. Ultimately, they returned back to Khatima alongwith complainant and again went to M/s. Kamal Kirana Store. They found the shop still lying closed, but there was a foul smell coming out of the shop and some dogs were found roaming around. On this, they suspected foul play and in the presence of the public witnesses, the lock of the shop was broken. When the Police, complainant and other neighbouring witnesses entered inside the shop, they found dead body of Shiv Hari Sharma lying there. On this, inquest report (Exhibit A-4) was got prepared by the Police in the presence of the complainant and witnesses. P.W. 10 Assistant Sub-Inspector, Vikram Singh Bisht alongwith P.W. 11 Assistant Sub-Inspector Radha Kishan Bahuguna prepared Police Form No. 33 (Exhibit A-9), Form No. 13 (Exhibit A-13), Sample seal (Exhibit A-10) Sketch of the dead body (Exhibit A-14) and letter to Chief Medical Officer for post mortem examination. On 7.8.1981, P.W. 5 Dr. V. P. Agarwal conducted post mortem examination on the dead body of Shiv Hari Sharma and prepared post mortem examination report (Exhibit A-3) and he opined that the cause of the death of the deceased was asphyxia due to strangulation. A case u/s 302 of I.P.C. appears to have been registered and investigation was taken over by P.W. 12 Laxmi Ram Arya. Meanwhile, the Police also took the blood-stained soil and plain soil from the shop and prepared memorandum (Exhibit A-5). They also recovered a pair of Sandle and prepared recovery memo (Exhibit (A-6). After interrogating witnesses and completing the investigation, the Investigating Officer submitted charge sheet (Exhibit A-19) against accused/ Appellants Basaruddin, Sardar Khan alias Bholey, Islam Khan (son of Aslam Khan) and Islam Khan (son of Sadi Khan) relating to offence under Sections 302, 394 and 201, I.P.C. The Magistrate on receipt of the charge-sheet, after giving necessary copies to the accused as required u/s 207 of Cr. P.C. committed a case to the Court of Sessions for trial. Learned I Ind Additional Sessions Judge, Nainital to whom trial was transferred, after hearing the parties, framed the charge of offences punishable under Sections 394, 302 and 201, I.P.C. against all the four accused namely Basaruddin, Sardar Khan alias Bholey, Islam Khan (son of Aslam Khan), Islam Khan (son of Sadi Khan). All the accused pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. 1 Bramha Shankar (complainant), P.W. 2 Virendra Prakash the landlord of the shop of the accused, P.W. 3. Radha Raman-partner of the deceased, P.W. 4 Ghanshyam Dass neighbouring shop keeper, P.W. 5 Dr. V. P. Agarwal, who conducted the post mortem examination, P.W. 6 Bhagirathi Gupta, in whose presence dead body was recovered from the shop of Basaruddin, P.W. 7 Harish Kumar Bhatia, who had last seen deceased before he went to Kamal Kirana Store of the accused Basaruddin, P.W. 8 Constable Prem Ballabh, who took dead body of the deceased for post mortem examination in a sealed condition, P.W. 9 Constable Govind Singh, who made entry in the General Diary on receiving report (Exhibit A-1) from the complainant, P.W. 10 Assistant Sub-Inspector Vikram Singh Bisht, who started inquiry of the missing person (deceased), P.W. 11 Assistant Sub-Inspector Radha Kishan Bahuguna and P.W. 12 Laxmi Ram Arya Investigating Officer. Oral and documentary evidence was put to the accused u/s 313 of Cr. P.C. In reply to which, accused (Basaruddin) admitted that Shiv Hari Sharma was brother of Bramha Shankar Sharma (complainant) and partner of Radha Raman (P.W. 3). He also admitted that the Firm M/s. Raman and Company used to run by Sri Shiv Hari Sharma and Radhey Raman Sharma and used to supply pulses and he (Basaruddin) used to purchase pulses for Kamal Kirana Store. He also admitted that Shiv Hari Sharma used to go to collect dues from the traders on Tuesdays and Wednesdays. He also admitted that on 28.7.1981 Shiv Hari Sharma (deceased) had gone to the accused in Khatima to collect the dues and he made payment of Rs. 20 to him. Rest of the evidence was denied by the accused (Basaruddin) as false. Other accused/Appellants denied entire evidence as false. However, no evidence in defence was given on behalf of the accused/Appellants. After hearing the parties, the trial court found all the four accused namely Basaruddin, Sardar Khan alias Bholey, Islam Khan (son of Aslam) and Islam Khan (son of Sadi Khan) guilty of charge of offences punishable under Sections 394 and 302/34, I.P.C. However, they were not found guilty of charge of offence punishable u/s 201, I.P.C. After hearing on sentence, each of the convicts is sentenced to imprisonment of life u/s 302, I.P.C. and to rigorous imprisonment for six years u/s 394, I.P.C. On said count (under Section 394, I.P.C.), convicts were further directed to pay a fine of Rs. 3,000 and in default of payment, the defaulter was to undergo further one year''s rigorous imprisonment. Aggrieved by the said judgment and order dated 8th November, 1982, passed by the learned I Ind Additional Sessions Judge, Nainital in Sessions Trial No. 233 of 1981 convicts Sardar Khan alias Bholey Khan, Islam Khan (son of Aslam Khan) and Islam Khan (son of Sadi Khan) preferred Appeal No. 2905 of 1982 (now renumbered as 176 of 2008) and accused Basaruddin preferred Appeal No. 2906 of 1982 (now renumbered as Criminal Appeal No. 177 of 2008) before the Allahabad High Court on 23rd November, 2008, where the two appeals were admitted on the same day. Both the appeals are received by transfer, by this Court u/s 35 of the U. P. Reorganisation Act, 2000 (Central Act No. 29 of 2000), for their disposal.

Before further discussions, we think it just and proper to mention here, the ante mortem injury found by P.W. 5 Dr. V. P. Agarwal, who conducted post-mortem examination on the dead body of the Shiv Hari Sharma and prepared Autopsy Report (Exhibit A-3). The post mortem report discloses following ante mortem injury:

On removing the rope from the neck a ligature mark of 4.5 cm. x .4 cm. around whole of the neck in the middle. The mark was well defined narrow and about 5 cm. below right ear and 5.5 cm. below left ear. The ligature mark was hard, dry and parchment like.

On internal examination, the Medical Officer observed that the dead body was three days'' old and found the brain and its membrane congested, hyoid and thyroid bone ruptured, pleura congested, larynx, trachea and bronchi congested and ruptured under the ligature mark. The Medical Officer also observed in the Autopsy Report that rigor mortis had passed off, tongue was pressed between the teeth and lips were swollen and everted. Frothy reddish fluid had come out from mouth and nostrils. He opined that cause of death was asphyxia due to strangulation.

The evidence of the Dr. V. P. Agarwal P.W. 5 read with Autopsy Report (Exhibit A-3) clearly establishes that the deceased had died of asphyxia due to strangulation.

It is a case of circumstantial evidence and this Court has to see as to whether the prosecution has successfully proved all the circumstances establishing the complete chain showing that it was only accused/Appellant, who committed murder of the deceased and robbery or not. Apart from the medical evidence discussed above, following are other circumstances which has been brought on record and proved by the prosecution:

(I) It has been proved by the complainant P.W. 1 Bramha Shankar Sharma-brother of the deceased and P.W. 2 Radhey Raman-partner of the deceased in the Firm Raman and Company that the deceased used to supply pulses on credit to various traders including accused (Basaruddin) and used to collect outstanding dues on every Tuesday from the traders.

(II) A motive has been brought on record and proved that when there had been quarrel between the deceased and accused Basaruddin on 28.7.1981 at the time of recovery of the dues sought by the deceased and accused (Basaruddin) gave a threat to the deceased to see him on next Tuesday (4.8.1981).

(III) P.W. 7 Harish Kumar Bhatia, who also runs a shop in Khatima, has stated that on 4.8.1981 at about 4.45 p.m. Shiv Hari Sharma (deceased) met him and told that on that day he had realised money from other traders and he has to recover his dues only from Kamal Kirana Store where he was going before proceeding for Bareilly.

(IV) P.W. 2 Virendra Prakash-landlord of accused (Basaruddin) told that he saw Bareilly VALE SHARMA JEE (deceased) going inside Kamal Kirana Store. This fact has been corroborated by P.W. 4 Ghanshyam Das the neighbouring shop-keeper that at 5.15 p.m. he also saw Shiv Hari Sharma (deceased) going inside the Kamal Kirana Store.

(V) P.W. 2 Virendra Prakash-landlord has told that the accused Sardar Khan, Islam Khan (S/o Aslam Khan) and Islam Khan (S/o Sadi Khan) were sitting in the shop of Basaruddin on the day of incident.

(VI) P.W. 1 complainant (Bramha Shankar), P.W. 3 Radhey Raman, P.W. 10 Vikram Singh Bisht and P.W. 11 Radha Kishan Bahuguna have proved that after the incident accused/Appellant closed his shop and left Khatima and he was not traceable at the place in his village or in place of his relatives.

(VII) Dead body of Shiv Hari Sharma (deceased) was recovered by Police from the shop of the accused (Basaruddin) after breaking it open in presence of P.W. 1 (complainant), P.W. 6 Bhagirath Gupta and other public witnesses.

(VIII) It has also come on record from the evidence that the deceased had recovered a sum of Rs. 3,000 on that day from other traders, but when the dead body was recovered, there was no money with him.

From the above circumstances established on record, it is clear that chain of circumstances is complete on the record only as against accused Basaruddin. As far as other three accused/Appellants namely Sardar Khan alias Bholey Khan, Islam Khan (S/o Aslam Khan), Islam Khan (S/o Sadi Khan) are concerned only this much is proved that they were also present in the shop of Basaruddin on 4.8.1981. Merely for that reason, it cannot be said that it is proved beyond reasonable doubt that they were also involved in commission of murder of Shiv Hari Sharma and committed robbery. We agree with the submission of Mr. S. K. Agarwal, senior advocate, learned Counsel for Appellants that it is unnatural on the part of Basaruddin to disclose the names of his relatives Sardar Khan alias Bholey Khan, Islam Khan (S/o Aslam Khan) and Islam Khan (S/o Sadi Khan), who belong to Bareilly as they were not known to the witnesses. We are of the view that the prosecution has not been successful to prove the charge of offences punishable u/s 302 read with Section 34 and that of Section 394 of I.P.C. against other accused namely Mr. Sardar Khan alias Bholey Khan, Islam Khan (S/o Aslam Khan), Islam Khan (S/o Sadi Khan).

Mr. S. K. Agarwal, senior advocate, argued that the blood stained soil and simple soil collected by Investigating Officer was not sent for chemical examination and it was not proved that blood stained soil contained human blood. We are of the view that this slackness on the part of the Investigating Officer does not shake the case of prosecution, as it is a case of strangulation and there is a recovery of dead body from the shop of the accused Basaruddin in presence of witnesses of neighbourhood.

It is also contended on behalf of the Appellants that as mentioned in the site plan (Exhibit A-15), there was a back-side door in the shop of Basaruddin and landlord used to live just behind that door and it is possible that the dead body might have been kept by him. We cannot accept such presumption as against the landlord as neither there was any motive on the part of the landlord (Virendra Prakash) of the accused Basaruddin nor there is evidence that door of that side remained open. Rather, the evidence on record shows that the door was lying closed.

Lastly it has been submitted on behalf of the Appellants that Bahadur-servant of accused (Basaruddin) was earlier servant of P.W. 7 Harish Bhatia and as such, such witness had grudge against the accused (Basaruddin). The submission advanced on behalf of the Appellants, in our opinion carries little force as Harish Bhatia (P.W. 7) has supported prosecution only to the extent that on 4.8.1981 Shiv Hari Sharma came to his shop before going to the shop of Basaruddin. The witness has not stated anything which creates any doubt in his testimony or smells that he has stated anything out of grudge against Basaruddin.

Having reassessed the evidence on record, for the reasons as discussed above, we uphold the conviction and sentence recorded by the trial court as against accused/ Appellant Basaruddin. However, we hold that the prosecution has not successfully proved the charge of offences punishable under Sections 302/34 and 394, I.P.C. as against the rest of the accused namely Sardar Khan alias Bholey Khan, Islam Khan S/o Aslam Khan and Islam Khan, S/o Sadi Khan beyond reasonable doubt. Therefore, their appeal deserves to be allowed and they are entitled to be acquitted. Accordingly, Criminal Appeal No. 176 of 2008 (old No. 2905 of 1982) is allowed. Conviction and sentence recorded by the trial court as against accused/Appellants Sardar Khan alias Bholey Khan, Islam Khan (S/o Aslam Khan) and Islam Khan (S/o Sadi Khan) is set aside. They are acquitted of the charge of offences punishable under Sections 302/34 and 394, I.P.C. They are on bail. They need not surrender. Their bail bonds are discharged. To the extent of conviction and sentence of Sardar Khan, Islam Khan (S/o Aslam Khan) and Islam Khan (S/o Sadi Khan) the impugned judgment and order passed by the trial court stands set aside. However, Criminal Appeal No. 177 of 2008 (old No. 2906 of 1982) filed by accused/Appellant Basaruddin is dismissed. His conviction and sentence recorded by the trial court is affirmed. He is on bail. His bail is cancelled. Registry is directed to send the lower court record back to the trial court so that the accused/Appellant Basaruddin is made to serve out the sentence awarded against him.