Point of law : Conviction upheld - Ocular testimony stands corroborated with medical evidence - Recovery of weapon at the instance of accused.

JUDGMENT :

Syed Aftab Husain Rizvi, J.

1. Heard Sri Lal Ji Chaudhary, learned Amicus Curiae for the appellant, learned A.G.A. for the State and perused the record.

2. This criminal appeal has been filed against the judgment and order dated 16.11.1988 passed by Ist Additional Sessions Judge, Aligarh in Session Trial No. 70 of 1987 and connected Session Trial No. 659 of 1987 convicting and sentencing the appellant to undergo life imprisonment under section 302 IPC.

3. In brief the prosecution case is that complainant Sultan gave an application dated 16.5.1986 at P.S. Harduwaganj alleging therein that on 15.5.1986 at 8:35 P.M. his younger brother Saddiq has gone to fetch bidi from the shop situated beneath the mosque. When he was coming back and reached near the house of Mazhar Husain, then Nizam resident of Jalali, P.S. Harduwaganj who is a bad character and criminal and Saddiq used to desist him from such acts, stabbed Saddiq with knife. On cries of Saddiq complainant, Shakir, Shabbir and other persons came there and Nizam ran away. When Saddiq was taken to hospital he died there.

Before his death Saddiq has said that Nizam has inflicted knife blows on him.

On the aforesaid information Case Crime No. 96 of 1986, under section 302 IPC was registered against accused Nizam. Investigation of the case was conducted by S.I. Dal Chand. The inquest proceeding of the dead body was conducted and related papers were also prepared and body was sealed and sent for postmortem examination. The Investigating Officer recorded the statements of complainant and other witnesses, visited the place of occurrence and prepared the site plan. Accused Nizam was arrested by the police station Quarsi, District Aligarh and on his interrogation by the Investigating Officer he disclosed that the knife used in the incident has been concealed by him and at his instance on 19.5.1986 at 8:00 P.M. one knife with blood stains was recovered from the ‘Chhappar’ in the house of Nanna, the maternal uncle of accused Nizam. Memo was prepared and knife was sealed and sent for forensic examination. Nanna was also implicated as an accused and after completion of investigation separate charge-sheet under section 302 IPC was filed against Nizam and Nanna.

Two session trial nos. 70 of 1987 and 659 of 1987 committed to the court of session were consolidated.

The trial court framed charge under section 302 IPC against accused Nizam and under section 302/34 IPC against accused Nanna.

The prosecution produced 7 witnesses who have proved 9 prosecution papers Ex. Ka-1 to Ex. Ka-9 and one material Exhibit (Knife). Statements of accused under section 313 Cr.P.C. were recorded in which they denied the prosecution case and statements of witnesses. Accused Nizam has also said that witnesses are deposing against him due to enmity. One defence witness Aharpal Singh, Junior Engineer has been produced as D.W. 1. The learned trial court by the impugned judgment has convicted accused Nizam under section 302 IPC and sentenced him to life imprisonment while acquitted accused Nanna from the charge under section 302/34 IPC.

4. The conviction of accused Nizam is under consideration in this appeal.

5. Postmortem of deceased Saddiq has been conducted on 16.5.1986 at 5:00 P.M. by Dr. I.H. Qureshi who has appeared as P.W. 5 and has proved the postmortem report as Ex. Ka-12.

According to postmortem report the age of the deceased was about 45 years. In external examination Average built body, rigor mortis was present in both upper and lower extremities, eyes closed, mouth half open, abdomen slightly distended, no signs of decomposition. Following ante mortem injuries were present on the body of the deceased:

1. Incised wound 1½ cm. X ½ cm x muscle deep on the right side chest, 1 cm. above right nipple.

2. Incised wound 5 cm. X 1½ cm. X chest cavity on the right side lower chest, 11 cm. below right nipple.

3. Incised wound 4 cm. X 1½ cm. X abdomen cavity on the left side upper abdomen, 12 cm. above umbilicus.

4. Incise