Madhya Pradesh High Court
Ashraf vs The State Of Madhya Pradesh on 25 January, 2023
Author: Prakash Chandra Gupta
1
Cr.A. No.417 of 2011
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 25th OF JANUARY, 2023
CRIMINAL APPEAL No. 417 of 2011
BETWEEN:-
ASHRAF S/O KHAJU KHAN, AGED ABOUT 36 YEARS, HATPURA
AGAR, P.S. AGAR, DISTIRICT- SHAJAPUR (MADHYA PRADESH)
.....APPELLANT
(MS. SHARMILA SHARMA, LEARNED COUNSEL FOR THE
APPELLANT.)
AND
THE STATE OF MADHYA PRADESH GOVT. THROUGH POLICE
STATION- AGAR, DFISTT. SHAJAPUR (MADHYA PRADESH)
.....RESPONDENTS
( SHRI KAMAL KUMAR TIWARI, LEARNED GOVT. ADVOCATE FOR
STATE.)
Reserved on : 16.01.2023
Pronounced on : 25.01.2023
------------------------------------------------------------------------------------
This appeal having been heard and reserved for judgement,
coming on for pronouncement this day, Hon'ble Shri Prakash
Chandra Gupta pronounced the following:
JUDGEMENT
Cr.A. No.417 of 2011
Appellant has filed this appeal under section 374 of the Code
of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.),
being aggrieved by the judgment dated 03/02/2011, passed by
Additional Sessions Judge, Agar, District-Shajapur in S.T. No.
118/2010, whereby the learned trial court has convicted and
sentenced the appellant as under:-
Offence Sentence awarded Fine amount Imprisonment in lieu
of fine amount
302 of the IPC Life Imprisonment Rs.1,000/- 6 months R.I.
450 of the IPC 5 years R.I. Rs.500/- 3 months R.I.
324 of the IPC 2 years R.I. Rs.200/- 1 month R.I.
2. Prosecution case in brief is that the deceased Razia Bee was
daughter of Rani Bee (PW/4). Earlier Rani Bee (PW/4) was married
to Chhotu Khan. Deceased Razia Bee was the daughter from the
wedlock of Rani Bee (PW/4) and Chotu Khan. After death of Chotu
Khan, Rani Bee (PW/4) remarried with Bhuru Khan and since then
she was living separately in Multani Mohalla, Hatpura, Agar, Distt-
Shajapur with her husband Bhuru Khan. Since childhood deceased
Razia Bee had been living with her maternal grandparents
(hereinafter referred to as grandparents), Sattar Khan (PW/5) and
Saida Bee (PW/2). Sarfaraz Khan (PW/1) is maternal uncle of the
deceased.
3. The appellant Ashraf lives in the neighbour of the place where
deceased used to live. The appellant was married and has children.
He wanted to marry with deceased Razia Bee but the grandparents
Cr.A. No.417 of 2011
had refused for the proposal of the marriage because of which he
was pressurizing her grandparents. 8-10 days prior to the incident,
the grandparents of the deceased had got the engagement of the
deceased Razia Bee done in village Karnawat. In response appellant
Ashraf said that if Razia would not marry him, he will not let her
marry with anyone. At the time of incident, preparation for marriage
of deceased was being carried on. In consonance with the foregoing
reasons, on 14/03/2010 at about 04:30 PM, deceased was cleaning
clothes, the appellant entered in the house of Sattar Khan (PW/5)
carrying a knife and intended to kill the deceased. The appellant
repeatedly stabbed her with a knife. Sarfaraz Khan (PW/1) tried to
intervene, then appellant also inflicted blows upon him with knife.
Saida Bee (PW/2) and Irshad Khan (PW/3) also came to rescue her.
Thereafter appellant fled away. Deceased Razia Bee was taken to
hospital where she died.
4. On being intimated about the incident the police had come to
civil hospital Agar. Sarfaraz Khan (PW/1) had intimated the incident
to the inspector P.L. Raj (PW/11). P.L. Raj (PW/11) had lodged
Dehati Nalishi (Ex.P/1) against the appellant on the same day at
05:10 PM and also lodged Dehati Merg (Ex.P/2). On the basis of
Dehati Nalishi (Ex.P/1) and Dehati Merg (Ex.P/2), head constable
Harish Chandra Jurri (PW/7) had lodged an FIR (Ex.P/8) and Merg
Intimation (Ex.P/9) respectively on the same day.
Cr.A. No.417 of 2011
5. During investigation Inspector P.L. Raj (PW/11) gave notice
(Ex.P/4) and prepared Lash Panchnama (Ex.P/5). He sent the body
of the deceased for post-mortem through constable Madan Lal. Dr.
Anil Agrawal conducted autopsy and gave post-mortem report
(Ex.P/7). During post-mortem Dr. Anil Agrawal (PW/6) preserved
and sealed Kurti, Salwar, Chunri and Sameej of deceased and
handed over to the concerning constable. He sent Sarfaraz Khan
(PW/1) for medical examination. Dr. Anil Agrawal (PW/6)
examined Sarfaraz Khan (PW/1) and gave MLC report (Ex.P/6).
6. Inspector P.L. Raj (PW/11) inspected the place of incident and
prepared a spot map (Ex.P/3) at the instance of Sarfaraz Khan
(PW/1). He seized blood sample from the floor through cotton ball
and a blood stained ladies Paijama vide seizure memo (Ex.P/15)
from the place of incident. On 16/03/2010, he arrested the appellant
vide arrest memo (Ex.P/11), he seized a blood stained shirt from the
appellant vide seizure memo (Ex.P/13), thereafter he recorded
disclosure statement of appellant vide disclosure memo (Ex.P/12).
He recovered a blood stained knife at the instance of appellant vide
seizure memo (Ex.P/14). On 27/03/2010 Inspector P.L. Raj (PW/11)
sent the knife to doctor for examination and opinion along with
letter (Ex.P/16). Dr Anil Agrawal (PW/6) examined the knife and
gave his opinion on the back side of the letter (Ex.P/16). Head
constable Harish Chandra Jurri (PW/7) seized a sealed packet
containing clothes of deceased produced by constable Pradeep
Cr.A. No.417 of 2011
Yadav from hospital vide seizure memo (Ex.P/10). Inspector P.L.
Raj (PW/11) sent the seized articles to FSL Sagar for chemical
examination through letter (Ex.P/17). Statement of witnesses was
recorded and after completion of investigation, charge-sheet was
filed before concerning Magistrate. The offence was triable by court
of sessions, therefore, the case was committed before the court of
sessions.
7. The learned trial court framed charge against the appellant.
The appellant abjured his guilt and sought trial. In turn prosecution
in order to prove its case, examined 11 witnesses. After completion
of prosecution evidence, the appellant was examined under section
313 of Cr.P.C. The appellant had taken defence that he has not
committed the offence and he has been falsely implicated in the
offence due to animosity. Though, he has not examined any witness
in his defence.
8. Criticising the impugned judgment, counsel for the appellant
has submitted that there is no independent witness in the case. Rani
Bee (PW/4), Sattar Khan (PW/5) and Ashiq Ali (PW/10) are not the
eye-witnesses of the incident, they are only hear-say witnesses,
therefore, their statement is not admissible in evidence. Other eye-
witnesses of incident Sarfaraz Khan (PW/1), Saida Bee (PW/2) and
Irshad Khan (PW/3) are related witnesses of the deceased. There
was animosity in the relationship between appellant and
Cr.A. No.417 of 2011
grandparents of deceased. Therefore, their statement is also not
trustworthy. Seizure witness Kamaruddin (PW/8) is also related
witness, therefore, his statement is not reliable but the learned trial
court has not considered properly the aforesaid factum. Therefore,
impugned judgment is liable to be set aside.
9. Learned Government Advocate appearing for the State has
supported the impugned judgment passed by the learned trial court.
10. We have heard learned counsels for the parties and perused
the records.
11. Entering upon the defence, this court thinks it apposite to find
out as to whether the death of the deceased Razia was homicidal in
nature?
12. Dr Anil Agrawal (PW/6) stated that, on 14/03/2010, he was
posted as a Medical Officer at C.H.C. Agar. On the said date the
dead body of deceased was brought before him for post-mortem. He
examined and found following injuries on the body:-
1. Incised wound 1"x 1" over right shoulder near acromian
process.
2. Incised wound over upper outer aspect of left shoulder
size 1" x 1" vertically on coracoid process.
3. Incised wound 1.5" x 1" x muscle deep, vertically over
right forearm, flexor aspect 2 inch below of elbow joint.
Cr.A. No.417 of 2011
4. Incised wound 2" x 1" vertically over lower 1/3 rd of right
forearm, extensal surface.
5. Incised wound 2" x 1" vertically over antero-medial
aspect of left upper arm below the head of humar.
6. Incised wound 1.5" x 1" over inner upper quadrant of
right breast, over 4th ICS 2 inch away from the right sternal
border.
7. Incised wound 1" x 1" horizontally just over the right
areola.
8. Incised wound 1" x 1" vertically over upper outer
quadrant of right breast, 3" away from sternal border.
9. Incised wound 1.5" x 1" vertically over lower inner
quadrant, 1" away from right sternal border.
10. incised wound 1" x 1" obliquely, over upper inner
quadrant of left breast, 1" lateral to left sternal border.
11. Incised wound over left breast, size 1" x 1", upper outer
quadrant, vertically placed close to anterior axillary line.
12. Incised wound 1.5" x 1.5" over chest, 4 th ICS, close to
left sternal border.
13. This witness stated that all injuries present on the body of the
deceased were caused by pointed and sharp object and were ante-
mortem in nature.
14. Dr. Anil Agrawal (PW/6) further stated that in internal
examination, he found that there were fractures in 5 th right rib and 3rd
left rib. An incised wound 2" x 1" on lower lobe of right lung. Incised
wound 2" x 1" was present passing through both the ventricle of the
heart. 400Ml blood was present in the thoracic cavity. He stated that
Cr.A. No.417 of 2011
clothes worn by deceased were sealed by him and handed over to the
concerning constable. The witness opined that cause of death was
shock and internal haemorrhage due to injury to heart and right lung.
He proved post-mortem report (Ex.P/7). No amount of cross-
examination could cause scratch on the statement of this witness.
Therefore, the statement of this witness appears to be reliable. Hence,
from the statement of this witness, it appears that there were 12 ante-
mortem incised wounds present on the body of the deceased and she
died because of internal haemorrhage and shock due to injury in heart
and right lung. It also appears that death of deceased was homicidal in
nature.
15. The next question arises that whether Sarfaraz Khan (PW/1)
sustained injuries?
16. In this respect Dr. Anil Agrawal (PW/6) stated that on
14/03/2010, injured Sarfaraz Khan (PW/1) was brought before him
for medical examination. He examined and found following injuries
on his body:-
1. Abrasion 1" x 0.5" on left palm index finger.
2. Abrasion 1" x 0.5" on middle finger, lower palm, phalynx
region.
3. Abrasion 1" x 0.5" on right index near palmer surface.
4. Incised wound 3" x 1/4" x 1/4" on right hand.
17. Dr. Anil Agrawal (PW/ 6) opined that all the injuries present
on the body of injured were simple in nature and caused within 24
Cr.A. No.417 of 2011
hours. He proved MLC report (Ex.P/6). Though the witness has not
stated that through which type of object, the injuries could have
been caused to the injured Sarfaraz Khan (PW/1) but it is mentioned
in MLC report (Ex.P/6) that all the injuries are caused by sharp
object. Statement of witness appears to be reliable and it is clear that
Sarfaraz Khan (PW/1) has received injuries.
18. The next question arises that whether the appellant/ accused
Ashraf committed house-trespass and intentionally inflicted injuries
on the body of deceased Razia to cause her death and to Sarfaraz
Khan (PW/1) with intention to cause hurt with sharp object?
19. Sarfaraz Khan (PW/1), Saida Bee (PW 2), Rani Bee (PW/4)
and Irshad Khan (PW/3) are close relatives of the deceased. Irshad
Khan (PW/3) in paragraph 6 of cross-examination has stated that
Sarfaraz Khan (PW/1) is son of his maternal uncle. Seizure witness
Kamaruddin (PW/8) in paragraph 5 of cross-examination has
admitted that Sattar Khan (PW/5) is his maternal uncle. Therefore, it
appears that aforementioned witnesses are relatives. The trial Court
has relied on the statement of aforesaid witnesses.
20. In the judgment of Rajinder Singh and Anr. Vs. State of
Haryana [AIR 2009 SC 1734], Hon'ble the Apex Court has
observed as under:-
"23. ...It is well settled that if the witness is
related to the deceased, his evidence has to be
Cr.A. No.417 of 2011
accepted if found to be reliable and believable
because he would inter alia be interested in
ensuring that real culprits are punished."
21. In the case of Kuldeep Singh Rajawat Vs. State of Madhya
Pradesh [Criminal Appeal, 502 of 2011], this Court has held as
under:-
(37) It is settled principle of law that merely
because the witnesses may be related to the victim
or the deceased, their testimony may not be
rejected. There is no legal canon that only
unrelated witnesses shall be considered credible.
On the contrary, we are of the view that it is not
natural for the related witnesses to implicate a
person falsely leaving aside the actual culprit. It
is pertinent to mention here that only the
interested witnesses want to see the real culprit is
brought to book.
22. In the case of Dalbir Kaur Vs. State of Punjab, [(1976) 4
SCC 158], the Apex Court has observed as under:-
"11. The defence pleaded innocence and Ajit
Singh particularly pleaded alibi and stated that he
had never gone to the Village Marrar Kalan
Cr.A. No.417 of 2011
where the occurrence had taken place. It might be
mentioned here that the appellant Puran Singh
was a full brother of Bhiro while Ajit Singh was
her cousin. The central evidence against the
appellants consists of the statements of PW 3
Jaswant Kaur and PW 4 Shiv Kaur who have
given a complete narrative of the prosecution case
as indicated above. These two eyewitnesses have
been described as interested witnesses by counsel
for the appellants but we do not subscribe to this
view. There can be no doubt that having regard to
the fact that the incident took place at midnight
inside the house of Ajaib Singh, the only natural
witnesses who could be present to see the assault
would be Jaswant Kaur and her mother Shiv
Kaur. No outsider can be expected to have come
at that time because the attack by the appellants
was sudden. Moreover a close relative who is a
very natural witness cannot be regarded as an
interested witness. The term "interested"
postulates that the person concerned must have
some direct interest in seeing that the accused
person is somehow or the other convicted either
because he had some animus with the accused or
for some other reason. Such is not the case here.
Cr.A. No.417 of 2011
In the instant case there is absolutely no evidence
to indicate that either Jaswant Kaur or Shiv Kaur
bore any animus against the accused. This Court
had an occasion to decide as to whether a relative
could be treated as an interested witness. In Dalip
Singh v. State of Punjab this Court expressed its
surprise over the impression which prevailed in
the minds of the members of the bar that relatives
were not independent witnesses and in order to
dispel the same the qualities of independent
witnesses were clearly elucidated. In this
connection, Vivian Bose, J. speaking for the Court
observed as follows:
"We are unable to agree with the learned Judges
of the High Court that the testimony of the two
eyewitnesses requires corroboration. If the
foundation for such an observation is based on the
fact that the witnesses are women and that the fate
of seven men hangs on their testimony, we know of
no such rule. If it is grounded on the reason that
they are closely related to the deceased we are
unable to concur. This is a fallacy common to
many criminal cases and one which another
Bench of this Court endeavoured to dispel in
Rameshwar v. State of Rajasthan. We find,
Cr.A. No.417 of 2011
however, that it unfortunately still persists, if not
in the judgments of the courts, at any rate in the
arguments of counsel.
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. It is true, when
feelings run high and there is personal cause for
enmity, that there is a tendency to drag in an
innocent person against whom a witness has a
grudge along with the guilty, but foundation must
be laid for such a criticism and the mere fact of
relationship far from being a foundation is often a
sure guarantee of truth."
23. Therefore, it is clear that testimony of related witness, if
found to be truthful, can be the basis of conviction. It also can not
be forgotten that related witness would be the last person to screen
the real offender by dragging an innocent person and falsely
implicating him. The related witnesses are the ones who always
strive to get the real offender punished for their acts.
Cr.A. No.417 of 2011
24. Sarfaraz Khan (PW/1) stated that on 14/03/2010 at about
04:30 p.m. he, his mother Saida Bee (PW/2), deceased Razia and
witness Irshad Khan (PW/3) were present in the house. This witness
alongwith Irshad Khan (PW/3) was getting the paint job of the
house done in first floor. All of a sudden heard scream of deceased
Razia then he saw that appellant Ashraf was sitting on top of
deceased and she was lying down, and he was stabbing in the chest
of deceased Razia. In order to save her, he came to ground floor and
caught hold the appellant, then appellant gave blows by knife upon
this witness, because of which the forearm of this witness got
injured. While trying to hold the knife in his hand, he sustained
injuries in fingers and palm of both the hands. Irshad Khan (PW/3)
and Saida Bee (PW/2) came to the place of incident, then the
appellant/ accused Ashraf fled away. Saida Bee (PW/2) and Irshad
Khan (PW/3) also supported the statement of Sarfaraz Khan (PW/1)
in their statement.
25. Irshad Khan (PW/3) in paragraph 14 of his cross-examination
has answered on being questioned by the defence counsel that as
Irshad Khan (PW/3) came downstairs, then only the appellant had
fled away. Saida Bee (PW/2) in paragraph 2 of her examination-in-
chief has stated that deceased was cleaning clothes near the stairs at
ground floor. Then accused came and physically assaulted the
deceased with means of knife. Irshad Khan (PW/3) in paragraph 5
of cross-examination has admitted that he had not seen the appellant
Cr.A. No.417 of 2011
while he was assaulting the deceased, but in paragraph 2 of
examination-in-chief has stated that he was trying to catch hold the
appellant alongwith Sarfaraz Khan (PW/1) but appellant fled away
and he saw there were injuries on the body of Sarfaraz Khan (PW/1)
and blood was oozing from the wound, therefore, it appears that
Irshad Khan (PW/3) has not seen the appellant while he was
assaulting the deceased but he saw the appellant when he was
running from the spot.
26. Ashiq Ali (PW/10) stated that at the time of incident he saw
the appellant when he was coming out alongwith knife in his hand
and Sarfaraz Khan (PW/1) was trying to catch hold the appellant but
the appellant fled away towards Jhanda Chowki. This witness
entered in the house of Sarfaraz Khan (PW/1) and saw that deceased
was lying down near the stairs in injured state and Saida Bee
(PW/2) told him that the appellant has physically assaulted the
deceased with knife. Therefore, it appears from the statement of this
witness that right after the incident he saw the appellant running
away with knife in his hand from the house of Sattar Khan (PW/5)
and he also saw the deceased in injured state. At that time Saida Bee
(PW/2) told him that Razia said that appellant Ashraf has physically
assaulted the deceased with the means of knife.
27. Mother of deceased Rani Bee (PW/4) and maternal
grandfather Sattar Khan (PW/5) were not present at the spot at the
Cr.A. No.417 of 2011
time of incident. Rani Bee (PW/4) stated that she heard that
appellant assaulted the deceased by knife and Sattar Khan (PW/5)
stated that he was grazing cattle in his farm at the time of incident
and Guddu Khan received telephonic message and he told this
witness that the appellant has assaulted the deceased by knife.
Therefore, it appears that both the witnesses Rani Bee (PW/4) and
Sattar Khan (PW/5) are hear-say witnesses, hence, their statement is
not admissible in evidence.
28. Gabru Khan (PW/9) is not a witness of the incident he stated
that at the time of incident he was in Ujjain and Sarfaraz Khan
(PW/1) intimated him through telephone that deceased has been
murdered. Thereafter, he intimated head constable Harish Chand
Jurri (PW/7) by phone. This witness has not supported the case of
prosecution, hence, the prosecution has declared him hostile and
cross-examined this witness. In paragraph 3 of cross-examination
this witness admitted that Sarfaraz Khan (PW/1) had intimated that
appellant killed the deceased by means of knife. Therefore, it is
clear that this witness is also a hear-say witness, hence, his
statement is also not admissible in evidence in respect of incident.
29. Inspector P.L. Raj (PW/11) deposed that on 14/03/2010,
Sarfaraz Khan (PW/1) had given intimation in respect of incident,
on the basis of said intimation, he lodged Dehati Nalsi (Ex.P/1) and
also lodged a Merg intimation (Ex.P/2). Sarfaraz Khan (PW/1) also
stated that police had come at Agar hospital and on the basis of his
Cr.A. No.417 of 2011
intimation police had lodged Dehati Nalsi (Ex.P/1) and Merg
intimation (Ex.P/2). Inspector P.L. Raj (PW/11) further stated that
he sent Dehati Nalsi (Ex.P/1) and Dehati Marg intimation (Ex.P/2)
to police station for registration of crime through constable Brajesh
Jaat. Head constable Harish Chandra Jurri (PW/7) stated that he
lodged an FIR (Ex.P/8) and Merg intimation (Ex.P/9) on the basis of
Dehati Nalsi (Ex.P/1) and Dehati Marg (Ex.P/2) respectively.
30. On perusal of Dehati Nalsi (Ex.P/1) it appears that the
incident occurred on 14/03/2010 at 04:30 p.m. and Dehati Nalsi was
lodged on the same day at 05:10 p.m. i.e. within 40 minutes of the
incident. Statement of Sarfaraz Khan (PW/1) is supported by Dehati
Nalsi (Ex.P/1) and eye-witness Saida Bee (PW/2). Though Irshad
Khan (PW/3) has not seen when the appellant was assaulting the
deceased but he saw the appellant when he was running from the
spot and also saw the deceased and Sarfaraz Khan (PW/1) in injured
state. Therefore, the aforementioned statement of this witness
partially supports the statement of Sarfaraz Khan (PW/1). Ashiq Ali
(PW/10) is not an eye-witness but just after the incident he saw the
appellant fleeing away from the house of Sattar Khan (PW/5)
carrying knife in his hand. Therefore, statement of this witness also
partially supports the statement of Sarfaraz Khan (PW/1).
31. Statement of Sarfaraz Khan (PW/1) and Saida Bee (PW/2) is
also supported by statement of Dr. Anil Agrawal (PW/6). Though
Dr. Anil Agrawal (PW/6) has not stated that from which type of
Cr.A. No.417 of 2011
object the injury would have been inflicted on the body of Sarfaraz
Khan (PW/1) and also has not stated the probable time of death of
the deceased. But it is mentioned in MLC (Ex.P/6) of Sarfaraz Khan
(PW/1) that injuries of Sarfaraz Khan (PW/1) could have been
caused by sharp object. Apart from that the case depends on the
statement of eye-witnesses and they have clearly stated that the
appellant caused the injuries on the body of the deceased and on the
body of Sarfaraz Khan (PW/1) by means of knife. Thereafter, the
deceased had died as well as Sarfaraz Khan (PW/1) had received
injuries. There is nothing to show in cross-examination of the
witnesses that they are lying or were interested to falsely implicate
the appellant Ashraf in the offence. Therefore, their statement is
reliable.
32. Inspector P.L. Raj (PW/11) stated that he prepared spot map
(Ex.P/3) at the instance of Sarfaraz Khan (PW/1). Sarfaraz Khan
(PW/1) also stated that the police had come on spot and the police
had prepared spot map (Ex.P/3) at the instance of this witness.
Therefore, their statement is reliable.
33. Inspector P.L. Raj (PW/11) deposed that on 14/03/2010, he
collected blood present on the place of incident through cotton ball
and seized a blood stained ladies paijama (salwar), prepared seizure
memo (Ex.P/15). His statement is supported by Ashiq Ali (PW/10).
In paragraph 9 of cross-examination Ashiq Ali (PW/10) has denied
that he put his signature on seizure memo (Ex.P/15) at police
Cr.A. No.417 of 2011
station. Statement of both the witnesses is supported by seizure
memo (Ex.P/15). Therefore, their statement is reliable.
34. Inspector P.L. Raj (PW/11) stated that during investigation, he
arrested the appellant vide arrest memo (Ex.P/11). The witness
further stated that he seized a blood stained shirt of appellant at
Police station vide seizure memo (Ex.P/13). He also stated that at
the time of interrogation, the appellant disclosed that he has hidden
a knife above the frame of the main door at his home vide
disclosure memo (Ex.P/12). This witness further stated that he
recovered a knife at the instance of the appellant, produced by him
from above the frame of the main door at his home, vide seizure
memo (Ex.P/14). The aforesaid statement of this witness is not
challenged in his cross-examination by appellant. Statement of this
witness is supported by Kamaruddin (PW/8). In paragraph 6 of
cross-examination, Kamaruddin (PW/8) admitted that he had put his
signature on (Ex.P/11- P/14) at the police station. On perusal of
panchnamas (Ex.P/11- P/14) it appears that except seizure memo
(Ex.P/14) all the other panchnamas (Ex.P/11 - P/13) were prepared
at police station and (Ex.P/14) was prepared at the house of the
appellant. In paragraph 4 of examination-in-chief Kamaruddin
(PW/8) clearly stated that, this witness alongwith police and
appellant went to house of appellant from police station and after
recovery of knife the police prepared seizure memo (Ex.P/14).
Therefore, his statement can not be made a subject to be doubted
Cr.A. No.417 of 2011
upon on the basis of aforementioned minor discrepancy. Statement
of both the witnesses is supported with panchnamas (Ex. P/11-
P/14). Therefore, their statement is reliable.
35. Inspector P.L. Raj (PW/11) deposed that he sent the knife
alongwith letter (Ex.P/16) to Dr. Anil Agrawal (PW/6) for opinion.
Dr. Anil Agrawal (PW/6) stated that he received a sealed packet of
knife from police station Agar and after examining the knife, he
found that length of knife was 28 cm and width was 3 cm. He has
also opined that the injuries found on the body of the deceased and
on her clothes could have been caused from the seized knife. He has
given opinion B to B and signed C to C on the letter (Ex.P/16).
Statement of this witness appears to be reliable and in support of
statement of Sarfaraz Khan (PW/1) and Saida Bee (PW/2).
36. Sattar Khan (PW/5) stated that appellant wanted to marry
deceased Razia, but this witness did not want deceased Razia to
marry him and this witness told appellant that he is quite elder than
deceased and has children as well. Sattar Khan (PW/5) got
engagement of deceased Razia done with Bhaiyu Khan at Karnawat,
because of which appellant was filled with anger and in
consequence he killed the deceased. Statement of this witness is
supported by Sarfaraz Khan (PW/1), Saida Bee (PW/2), Rani Bee
(PW/4) and Ashiq Ali (PW/10). therefore, statement of Sattar Khan
(PW/5) is reliable, and appears that the appellant wanted to marry
with deceased and on being denied by the grandparents of the
Cr.A. No.417 of 2011
deceased, he was annoyed from the deceased as the grandparents of
the deceased had got her engagement done with Bhaiyu Khan at
Karnawat. This being the reason, which clearly exhibits that
appellant had a strong motive to kill the deceased.
37. From the statement of Dr. Anil Agrawal (PW/6) and post-
mortem report (Ex.P/7) it appears that the appellant was repeatedly
stabbing the deceased on her body. At the time of post-mortem Dr.
Anil Agrawal (PW/6) had found 12 incised wounds on the body of
the deceased. He had also found that most of the injuries were
inflicted on the vital parts of the body. Therefore, it appears the
appellant had intention to kill the deceased. Such act of the
appellant clearly shows that he had an intention to cause injury on
the body of the deceased, sufficient in ordinary course of nature to
cause death of the deceased. Act of the appellant does not fall in any
exception under section 300 of IPC. The appellant Ashraf has
committed murder of deceased which is punishable under section
302 of IPC having punishment of death or imprisonment for life and
the appellant entered in the house of Sattar Khan (PW/5) and
committed murder of deceased, hence it is clear that the appellant
has committed house-trespass in order to commit offence
punishable with life imprisonment. It is also clear from the above
discussion that the appellant has voluntarily caused injuries on the
body of Sarfaraz Khan (PW/1) by means of sharp object i.e. knife
which is punishable under section 324 of IPC.
Cr.A. No.417 of 2011
38. On the basis of foregoing discussion, it is clear that the
learned trial court has properly assessed the evidences available on
record and has rightly convicted and sentenced the appellant under
section 450, 302 and 324 of IPC. The learned trial court has not
committed any error by convicting the appellant for the offences.
The learned trial court has also given the minimum sentence to the
appellant, hence, conviction and sentence deserves to be
maintained.
39. Resultantly, the appeal filed by the appellant/ accused is
dismissed and conviction and sentence passed by the learned trial
court is hereby upheld.
4. Copy of this order alongwith record of the learned trial court
be sent to the learned trial court for information and compliance.
The appellant is serving in jail, be intimated about the outcome of
this appeal through the jail superintendent.
Certified copy, as per Rules.
(S. A. DHARMADHIKARI) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
Ajit/-
Digitally signed by AJIT
KAMALASANAN
Date: 2023.01.25 16:30:58
+05'30'
