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IN THE HIGH COURT OF ALLAHABAD
D. N. Roy and D. P. Uniyal, JJ.
STATE - Appellant
Versus
HOTEY KHAN - Respondents
Criminal Appeal 379 Of 1958
Decided On : 01/01/1960
CRIMINAL APPEAL - Murder - Acquittal - Appeal by State - Evidence - Motive - Threat - Eye-witness account - Circumstantial evidence - Appreciation of evidence - Corroboration of evidence - Section 288 Cr. P. C. - Use of previous statements - Discretion of Court - Weighing of evidence - Presumption of innocence - Interference with acquittal.
Fact of the Case:
The State appealed against the acquittal of two respondents, Hotey Khan and Zahoor, who were charged with the murder of one Shahzor Khan. The prosecution's case was that the respondents, along with one Yunis, were wanted by the police in connection with a robbery case and that Shahzor, acting as an informer, helped the police in arresting Yunis. The respondents allegedly got wind of this and threatened Shahzor with death if he did not desist from his activities. The next day, the respondents allegedly went to Shahzor's house and assaulted him with a gandasa, causing his death. The prosecution relied on evidence of motive, a threat, and eyewitness accounts to support its case.
Finding of the Court:
The court found that the evidence of motive and the threat was not clear, cogent, and convincing. The eyewitness accounts were also found to be unreliable and discrepant. The court further held that the trial court erred in admitting the earlier statements of two witnesses under Section 288 Cr. P. C. without putting those statements to the witnesses and without affording the accused an opportunity to cross-examine them on the previous statements.
Issues: 1. Whether the evidence of motive and threat was sufficient to establish the guilt of the respondents. 2. Whether the eyewitness accounts were reliable and credible. 3. Whether the trial court erred in admitting the earlier statements of two witnesses under Section 288 Cr. P. C. without putting those statements to the witnesses and without affording the accused an opportunity to cross-examine them on the previous statements.
Ratio Decidendi: 1. The court held that the evidence of motive and threat was not clear, cogent, and convincing. The court relied on the fact that the evidence of the witnesses who testified about the motive and the threat was inconsistent and unreliable. 2. The court held that the eyewitness accounts were unreliable and discrepant. The court noted that the witnesses gave conflicting accounts of the incident and that their testimony was inconsistent with the medical evidence. 3. The court held that the trial court erred in admitting the earlier statements of two witnesses under Section 288 Cr. P. C. without putting those statements to the witnesses and without affording the accused an opportunity to cross-examine them on the previous statements. The court held that the trial court's failure to follow the proper procedure under Section 288 Cr. P. C. rendered the admission of the earlier statements inadmissible.
Final Decision: The court dismissed the State's appeal and upheld the acquittal of the respondents.
ROY, J.
( 1 ) THIS is an appeal by the State against an order of acquittal of the two respondents, Hotey Khan and Zahoor, who were charged under Section 302 I. P. C. , for the murder of one Shahzor Khan in his Kotha in village Chitta within police circle Kotwali Buland-shahr on 21-4-1957 at about 2 p. m.
( 2 ) THE story on which the nrosccution was founded was briefly this. Hotey Khan and Zahoor along with one Yunis were wanted by the Pilkhwa police in connection with a case under section 396 I. P. C. A requisition was received from that police station by police station Kotwali bulandshabr for the arrest of these three persons who had for some time past been evading arrest. Shahzor Khan, the deceased, was acting as an informer, and with his help Mahabir Singh constable P. W. 6 assisted by another constable and a Chowkidar was able to arrest Yunis on 19-4-1957 when Yunis was engaged along with Karam Sher Khan P. W. 1 in working a Persian wheel over a well. On that date Hotey Khan and Zahoor, although wanted by Mahabir Singh constable, could not be arrested. It is, however, said that Shahjor gave a promise to Mahabir Singh constable that he would try his level best to get Hotey Khan and Zahoor arrested. The prosecution contended that Hotey Khan and Zahoor got scent of the matter and on the following day, namely, 20-4-1957, they went to the gher of Shahzor at about midday and there, in the presence of Kalian P. W. 5, they reprimanded Shahzor for his solicitude in helping the police in getting them arrested, and they further gave him a threat that if he did not desist from his activities they would kill him. As has been stated by Kalian P. W. 5, Shahzor did not take the matter seriously; and he gave a challenge to Hotey Khan and Zahoor that they may try to kill him if they could, and that he himself would deal with them in such fashion as he thought proper. One day later, that is on 21-4-1957, the murder of Shahzor is said to have been committed in his Kotha where Shahzor had been sleeping at about 2 p. m. Shahzor was lying over a cot. Another cot in the same Kotha was occupied by imam Khan P. W. 2, his relation. Hotey Khan and Zahoor, it is said made appearance there. Zahoor pressed Shahzor over the cot and Hotey started inflicting injuries on him with a gandasa. Shahzor woke up and raised shrieks. Upon his shrieks Imam Khan also woke up. Imam Khan, it is said, reprimanded the two assailants but they asked him to keep mum else he would be visited with the same consequences. Imam Khan, however, continued to raise cries which attracted Na-zecr Khan P. W. 3 and Nasseb khan P. W. 4. Na-zeer Khan was coming from his field and was going to the village and when he was at a distance of about 25 yards from the gher of Shahzor he heard the cries. Nasseb Khan was at his threshing floor which was at a distance of 25 paces from the Kotah of Shahzor and he too was attracted by the cries. These two persons, upon the evidence propounded by them, either saw the actual assault on shahzor or they saw Hotey Khan and Zahoor coming out of the Kotha of Shahzor after committing the crime and running away towards the grave-yard where they were chased by these persons as also by Karam Sher Khan P. W. 1, a cousin of the deceased, who was proceeding from his house to his Kotha which lay at a distance of about 150 yards from the Kotha of shahzor. Their effort to apprehend the two culprits was not successful. The culprits ultimately escaped. Shahzor met with an instantaneous death.
( 3 ) A report of the occurrence was lodged at police station Kotwali by Karam Sher Khan P. W. 1 on that very day at 4-55 p. m. , the police station having been at a distance of about 3 3/4 miles from the place of occurrence. Karam Sher Khan although not an actual eye-witness of the occurrence formulated the first information report upon the information that had been given of the matter to him by Imam Khan, Nasseb Khan and Nazeer Khan. At the time of the making of this report Sub-I
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