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CASE NO.: Appeal (crl.)  165 of 2003

PETITIONER: Munney @ Rahat Jan Khan

RESPONDENT: State of U.P.

DATE OF JUDGMENT: 03/08/2006

BENCH: G.P. Mathur & R.V. Raveendran

JUDGMENT: J U D G M E N T

G. P. MATHUR, J.

       This appeal, by special leave, has been filed against the  judgment and order dated 23.11.2001 of High Court of Judicature at  Allahabad by which the appeal filed by the appellant against his  conviction under Section 302 read with Section 34 IPC and sentence  of imprisonment for life imposed by learned First Additional Sessions  Judge was dismissed and his conviction and sentence was affirmed. 2.      Two persons, namely, the appellant Munney @ Rahat Jan Khan  and Sarwar were tried for offences under Sections 302 and 307 both  read with Section 34 IPC for having committed the murder of Iqbal  Farooq Ahmad and for having attempted to commit murder of Abrar  Ahmad @ Raju when Sarwar fired upon him by country made pistol.   According to the case of the prosecution, the deceased Iqbal Farooq  Ahmad was working as Reader in District Court at Rampur.  His  father Abdul Gaffar Querreshi, who had retired from the post of  Munsarim in the District Court, had purchased a house in Mohalla  Guiyan Talab in the city of Rampur in which Sakhawat accused was a  tenant.  A suit for arrears of rent and eviction was filed by Abdul  Gaffar Querreshi which was decreed and in execution of the decree  Sakhawat was evicted from the house on 16.10.1978 and some of his  moveable properties were attached.  After attachment moveable  properties were kept in the same house and it was locked and they  were given in the custody of PW-1 Mohammad Zaman Khan.   According to the case of the prosecution PW-1 Mohammad Zaman  Khan, PW-2 Abrar Ahmad @ Raju (younger brother of the deceased),  PW-3 Fasih Uddin and Abdul Gaffar Querreshi came to see the house  in the morning of 11.11.1978.  At about 8.45 a.m. accused Sakhawat,  Sarwar and Munney @ Rahat Jan Khan (appellant) came to the house  and immediately Sakhawat said that he was evicted and was thrown  out of the house as Iqbal Farooq Ahmed was working as Reader in the  District Court and, therefore, he should be finished.  All the three  accused surrounded Iqbal Farooq Ahmad (deceased) and Sakhawat  gave a blow in his abdomen by a big dagger.  After receiving the  injury the deceased fell down and thereafter Munney @ Rahat Jan  Khan (appellant) and Sarwar also assaulted him by daggers.  PW-2  Abrar Ahmad @ Raju tried to save his brother but Sakhawat  instigated Sarwar to shoot him on which the latter took out his country  made pistol and fired.  However, as Abrar Ahmad @ Raju managed to  enter inside the room, the gun shots did not hit him but hit the wall.   Thereafter the accused ran away.  An FIR of the incident was lodged  by PW-1 Mohammad Zaman Khan at 9.10 a.m. on 11.11.1978 at P.S.  Ganj, which is half a mile from the place of occurrence.  4.      The police, after usual investigation, submitted charge sheet  against the appellant Munney @ Rahat Jan Khan and Sarwar accused.   Sakhawat accused could not be arrested as he absconded and,

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therefore, he was not sent for trial.  After commitment of the case the  learned First Additional Sessions Judge framed charges under  Sections 302 and 307 both read with Section 34 IPC against both the  accused.  In order to establish the case prosecution mainly relied upon  the testimony of three eye witnesses, namely, PW-1 Mohammad  Zaman Khan, PW-2 Abrar Ahmad @ Raju and PW-3 Fasih Uddin.   PW-6 Dr. R.N. Bhardwaj, who had performed post mortem  examination on the body of the deceased at 2.30 p.m. on 11.11.1978,  proved the post mortem report in his deposition before the court.   Besides them the Investigating Officer of the case, namely, PW-5  Surat Singh, Station Officer, P.S. Ganj and some other formal  witnesses were also examined.  The accused examined DW-1 K.K.  Srivastava, Assistant Jailor, District Jail, Bareilly, who deposed that  Rahat son of Nawab Jan resident of Station Road, P.S. Civil Lines,  Distt. Moradabad, was admitted in the District Jail, Bareilly on  25.1.1979 in connection with a case under Section 112 of Railways  Act and after deposit of fine, he was released from jail on 27.1.1979.   The learned First Additional Sessions Judge, after careful analysis of  the evidence on record, found the prosecution to be correct and  convicted both the accused, namely, the appellant Munney @ Rahat  Jan Khan and Sarwar under Section 302 read with Section 34 IPC and  sentenced them to imprisonment for life under the said count.  Sarwar  was also convicted under Section 307 IPC whereunder he was  sentenced to three years RI and his sentences were ordered to run  concurrently.  Both the accused preferred appeal against their  conviction and sentence before the High Court, but the same was  dismissed by the judgment and order dated 23.11.2001. 5.      The present appeal has been filed by Munney @ Rahat Jan  Khan alone.  Learned counsel for the appellant has submitted that the  eye witnesses examined by the prosecution were not residents of the  locality where the incident took place and as such their presence on  the spot at the time of the occurrence is highly doubtful.  He has also  submitted that PW-2 Abrar Ahmad @ Raju was younger brother of  the deceased and PW-3 Fasih Uddin was his brother-in-law and being  close relatives of the deceased they were highly interested witnesses  and it would not be safe to place reliance on their testimony.  Learned  counsel has further submitted that the identity of the appellant  Munney @ Rahat Jan Khan has not been fully established as there  were several other persons having the same name. 6.      It is well settled that while hearing an appeal under Article 136  of the Constitution this Court will normally not enter into reappraisal  or review of the evidence unless the trial court or the High Court is  shown to have committed an error of law or procedure and the  conclusions arrived at are perverse.  The Court may interfere where on  proved facts wrong inference of law is shown to have been drawn (see  Duli Chand vs. Delhi Administration (1975) 4 SCC 649, Mst. Dalbir  Kaur and others vs. State of Punjab (1976) 4 SCC 158, Ramanbhai  Naranbhai Patel and others vs. State of Gujarat (2000) 1 SCC 358 and  Chandra Bihari Gautam and others vs. State of Bihar JT 2002 (4) SC  62). Though the legal position is quite clear still we have gone  through the evidence on record in order to examine whether the  findings recorded against the appellants suffer from any infirmity  mainly because the sentence imposed is imprisonment for life. 7.      There is no dispute that the house in which Sakhawat accused  was residing had been purchased by Abdul Gaffar Querreshi, who is  father of the deceased Iqbal Farooq Ahmad and he had filed a suit for  arrears of rent and eviction, which was decreed and in execution of  the decree Sakhawat was evicted from the house on 16.10.1978 and  his moveable properties were also attached and were given in the  custody of PW-1 Mohammad Zaman Khan.  The moveable properties  were not removed from the house and the house had been locked.  It is  the specific case of the prosecution that the deceased Iqbal Farooq  Ahmad and PW-1 Mohammad Zaman Khan, in whose custody the  moveable properties had been given, had gone to see the house in the  morning of 11.11.1978 and PW-2 Abrar Ahmad @ Raju and PW-3

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Fasih Uddin had also accompanied them.  That the murder of Iqbal  Farooq Ahmad took place right in front of the house is not open to  challenge, as PW-5 Surat Singh, Station Officer, P.S. Ganj has  deposed that he reached the place of occurrence at 10.00 a.m. and  found the dead body lying just in front of room on the right side of the  house.  He also found considerable quantity of blood lying on the spot  and took in his possession plain and blood smeared earth from the said  place.  According to the report of the chemical analyst (Ex. Ka-2) the  blood smeared earth contained human blood.  The house belonged to  Abdul Gaffar Querreshi and there is nothing unnatural if his two sons,  namely, the deceased Iqbal Farooq Ahmad and PW-2 Abrar Ahmad  @ Raju went to see the same as the house had been locked and no  body was living there.  Similarly, the presence at the spot of PW-1  Mohammad Zaman Khan is also very natural as he was the  ’supurdgar’ and moveable properties had been given in his custody  and thus he was responsible for their safety.  Therefore, the presence  on the spot of the three eye witnesses examined by the prosecution is  very natural and the mere fact that they do not belong to the same  ’mohalla’ cannot be a ground to discard their testimony.  Both PW-1  Mohammad Zaman Khan and PW-3 Fasih Uddin are residents of  same police station Ganj in the city of Rampur and consequently their  houses would not be at a great distance from the place of occurrence. 8.      We have also gone through the testimony of the three eye  witnesses examined by the prosecution.  They have consistently  deposed that Sakhawat accused first gave a blow by a big size dagger  on the abdomen of the deceased and after receiving the injury the  deceased fell down on the spot.  Thereafter, the appellant Munney @  Rahat Jan Khan and Sarwar accused gave blows by dagger on the  neck, face and hand of the deceased.  The doctor, who performed post  mortem examination, found the following ante mortem injuries on the  body of the deceased: - "1)     Incised wound 11 cm x 1 cm x bone deep on right  side face across the middle of nose cutting through  the bone of nose & cheek bone. 2)      Incised wound 14 cm x 4 cm x bone deep on right  side neck just below lower jaw across neck, cutting  the major vessels of neck and extending deeper  down to the vertebral column. 3)      Incised wound 3 cm x 1.5 cm x muscle deep across  right side neck adjacent to injury no. (2). 4)      Incised wound across the neck starts from centre  extends to left of neck 5 cm x 1.5 cm x cutting the  trachea and 3 cm above left sternoclavicular joint. 5)      Incised wound 9 cm x 2 cm x bone deep on back  of right forearm just below elbow joint.  This  wound across the right forearm has cut through a  chip of ulna bone. 6)      Incised wound 15 cm x 8 cm on right side  abdomen obliquely across, 6 cm right to umbilicus.   The wound is abdomen cavity deep.  Loops of  intestine coming out of the wound and they are  divided at three places."

The internal examination showed that Trachea was cut under injury  number 4, large vessels were cut under injury number 2 and small  intestines were cut at three places under injury number 6.  In the  opinion of the doctor the cause of death was shock and haemorrhage  as a result of multiple injuries.  The eye witnesses account find  complete corroboration from the medical evidence.  It may be noted  that in the FIR, which was very promptly lodged within 25 minutes of  the occurrence at 9.10 a.m., it was mentioned that intestines of the  deceased had come out, which fact is also noted in the post mortem  report while describing injury number 6.  The lodging of a prompt  FIR within 25 minutes of the occurrence wherein names of all the  three eye witnesses were also mentioned coupled with the fact that the

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Investigating Officer reached the place of occurrence at 10.00 a.m.  lend complete assurance to the prosecution case.  Nothing has come  out in the cross-examination of the witnesses, which may throw even  a slightest doubt upon the veracity of the prosecution version of the  incident. 9.      Learned counsel for the appellant has next submitted that the  identity of the appellant Munney @ Rahat Jan Khan was not  established.  It may be mentioned here that in the FIR it was  mentioned "Munney resident of Jail Road".  All the three eye  witnesses while deposing in the court have specifically stated that the  three accused standing in the dock were the assailants.  The accused in  his statement under Section 313 Cr.P.C. also gave his address as Jail  Road.  No evidence has been adduced by the defence to show that  there are many persons having the name of Munney and are residing  on Jail Road.  Nothing has come out in the cross-examination of the  witnesses to show that apart from the appellant Munney @ Rahat Jan  Khan, there are other persons having the same name and are residing  on Jail Road.  Thus the contention raised by the learned counsel has  no substance. 10.     Learned counsel has lastly submitted that the appellant Munney  @ Rahat Jan Khan was less than sixteen years of age and as such he  was entitled to the benefit of Juvenile Justice Act, 1986.  It may be  mentioned here that the incident in question took place on 11.11.1978  and the learned First Additional Sessions Judge convicted the  appellant by judgment and order dated 26.2.1980.  The Juvenile  Justice Act came into force in 1986.  At the relevant time Uttar  Pradesh Children Act, 1951 was applicable.  This Act afforded  protection to a child and the definition of child under Section 2(4) of  the said Act said that a child means a person under the age of sixteen  years.  The statement of the appellant under Section 313 Cr.P.C. was  recorded on 19.1.1980, i.e., nearly 14 months after the occurrence  wherein he gave his age as 18 years and further stated that he was  studying in Class XII.  Thus on his own showing he was nearly 17  years of age at the time of occurrence.  No plea regarding the fact that  the appellant was a child within the meaning of Uttar Pradesh  Children Act, 1951 was taken either during the course of his trial or in  appeal before the High Court.  If the appellant was a child such a plea  would have certainly been taken at the earliest possible opportunity at  the initial stage when he was arrested or in the trial.  We are clearly of  the opinion that the appellant was not a child at the time of  commission of the offence and he was not entitled to the benefit or  protection of the Uttar Pradesh Children Act, 1951. 11.     For the reasons discussed above we find no merit in the appeal,  which is hereby dismissed.