1969 PLP 833 (SCMR)

The autopsy on the dead body of Nabi Bakhsh revealed a big incised wound on the neck, cutting the spinal cord and another incised wound over the right cheek. His tongue was also cut in the middle. There is thus no doubt that the deceased died as a result of the injuries caused with a sharp‑edged weapon. Bachal, on medical examination, was found to bear an oblique incised wound, 6" x I" muscle deep, over the face, extending from the right cheek up to the left cheek, passing over the middle of the nose. He also had a contusion, 2" x 1", over the left side of his back. Direct evidence was given at the trial as to the commission of the crime by Mst. Kouri, Bachal and Mst. Jamul. Mst. Kouri appears to have retained a soft corner for the appellant, in whose favour she made certain admissions in her cross-?examination. Although she had supported the prosecution story in her examination‑in‑chief, she accepted the defence suggestions made to her that her deceased husband was carrying on a sexual intrigue with Mst. Jamul and that it was Bachal P. W. who had attacked her husband and who was injured by him. She was declared to have turned hostile, and her state?ment, as recorded by the Committing Magistrate, was transferred to the Sessions file and read out as evidence under section 288, Criminal Procedure Code. That statement did not contain any admission in favour of the accused such as has been mentioned above. The High Court considered the testimony of Muhammad Bachal and his wife, Mst. Jamul, to be entirely trustworthy. Muhammad Bachal was injured by the assailant of the deceased and, as he lives practically in the same house with the deceased, with whom he shared a common compound, there can be no doubt about his and his wife's presence on the spot at the material time. Apart from the suggestion made by Mst. Kouri that Bachal might have been the murderer there is nothing in the record of evidence to suggest why Bachal and his wife should have tried to implicate the appellant falsely in this case. The oral testimony of the direct witnesses was corroborated by Minhoon who arrived on the scene and found the appellant present at the spot with a hatchet in his hand. The appellant warned him not to approach him and the witness, therefore, refrained from physical interference with the appellant. Ghulam Ali P. W. is another Zamindar of the village. On learning of the murder that very night, he went to the house of the deceased and found him lying dead on his cot. He also saw Bachal with a bleeding injury on the face. On learning from the eye‑witnesses that the murderer was Haji, he went to the appellant's house, with two of his servants. He found the appellant with a blood‑stained hatchet in his hand and with the help of his servants, he placed him under arrest. Haji is said to have confessed to him that he committed the murder. When the police arrived, Ghulam Ali produced the appellant with the blood‑stained hatchet before them. His clothes were taken off the person of the appellant by the police as they appeared to be blood‑stained. These clothes as well as the hatchet were proved by expert evidence of the Chemical Examiner to be smeared with human blood. On the 6th of May 1957, the appellant was produced from police custody before a Magistrate who recorded his confession. This confession goes generally to corroborate the prosecution story‑. The plea of the appellant in the Courts below was one of innocence. When questioned by the Committing Magistrate as to whether he had confessed his crime to Ghulam Ali and surrendered his blood‑stained hatchet to him, he replied that he did so on account of maltreatment and coercion to which he was subjected by Ghulam Ali. He denied that the police had secured any clothing with blood‑stains from his person. About the extra judicial confession, he told the Committing Magistrate that he was not in his proper senses when he made that statement. In the trial Court, however, he went back on his admissions made before the Committing Magistrate. He then came out with the version that he was caught hold of, in his house, by Ghulam Ali at about 8 or 8‑30 a.m. on the morning following the night of the occurrence. He had no weapon with him. He was falsely charged with the murder and detained in Nabi Bakhsh's house. He disowned the hatchet that was an exhibit in the case. He suggested that it was brought by one, Muhammad Ali a servant of Rais Husan Ali, and foisted on him. He condemned his judicial confession as false and inspired by coercion exercised by the police. In respect of the motive, he said that Nabi Bakhsh had suspected him of a liaison with his wife about a year prior to the murder but that he had satisfied him by taking an oath on the Qur'an. He alleged that his own wife was being detained by Rais Husan Ali as a mistress. The High Court fully relied on the statements of the eye?witnesses, but considered it doubtful whether Minhoon had arrived in time to see the appellant at the spot. The allegation of the prosecution witnesses that a lantern was burning at the spot at the time of the occurrence was also not accepted as correct by the learned Judges. They considered the evidence of the recovery of the blood‑stained hatchet and the blood‑stained clothing from the accused to be trustworthy. They also thought that the extra‑judicial confession and the judicial confession of the appellant were not proved to have been vitiated by any coercion or maltreatment exercised by the P. Ws. or the police. They commented on the reasons given by the learned Sessions Judge for the acquittal and found them to be unconvincing. After hearing learned counsel for the appellant and going through the record, we see no reason to differ from the estimate of that evidence arrived at by the High Court. The learned counsel attempted to argue that the judicial confession was not a dependable piece of evidence, as the learned Magistrate, who recorded it, returned the accused to police custody, after it was over, and that he did not exercise that much care in taking down the statement which would make it safe to hold that the confession was a voluntary one. Even if, however, the confessions were to be ruled out of consideration, there was ample evidence on the record to sustain the conviction of the appellant on the charge of murder. The suggestion made through the mouth of Mst. Kouri that Bachal P. W. may have been the murderer is entirely discounted by the recovery of the blood‑stained hatchet and blood‑stained clothing from the appellant. These recoveries are established by good evidence on the record. The bona fide of this, P. W., therefore, cannot be attacked. The evidence given by him and his wife is extremely cogent and suffices to bring the offence home to the appellant. The theory, that Rais Husan Ali might have contrived to involve the appellant falsely in the case, does not appear to have substance in it. It is significant that the alleged enmity with Husan Ali was not even put to him when he came into the witness‑box. Reliance was mainly placed in this behalf on the admissions made by Mst. Kouri which cannot be accepted on their face value. After careful consideration of all the facts and circumstances brought out in the evidence in this case, we can discover no ground for interference with the order passed by the High Court. The appeal is dismissed. Appeal dismissed.