This is an appeal against the judgment of III Additional Sessions Judge, Hyderabad dated 7May, 1980, whereby he has convicted the appellant under section 302, P. P. C. And sentenced him to life imprisonment.
2. The facts of the case are that P. W. 1 Beejal had lodged an F. I. R. With Tando Jam Police Station, District Hyderabad on 4th October, 1978, at 19-00 hours alleging that Popat was his co-hari and his niece Mst. Sharimati Balho daughter of Harji was were of Popat and he was brother of Harji, who has come to see his daughter from Tando Soomro. He further stated that on the same day at 5-30 p. m. When he and his son Dayo were sitting in the field, cries came from Devi Jungle and before that Popat and his were Balho have gone to the Jungle of Devi trees for collecting Devi sticks, on cries he and his son rushed. His brother Harji also came from a distance and they saw Popat armed with a hatchet giving sharp side hatchet blows to Sharimati Balho, who shouted not to kill.
Popat dealt 4-5 blows to her at her neck. Popat then fled away and he came for report. He had further stated that Popat suspected his were Shirimati Balho to be in toe with his brother Krishin.
Balho had died on the spot.
3. The prosecution relied upon the oral evidence of the complainant Beejal, the son Dayo and Harji, who was the father of the deceased. However, out of them Beejal and Dayo have not supported the prosecution and Beejal had stated in his evidence that he had signed the F. I. R. Without the contents being read over to him and that the contents of the same are not true. He stated that a boy had told him that accused had killed the deceased. His statement is, therefore, not helpful to the prosecution, and the same has the effect of rendering the F. I. R. As ineffective as it could be used only to corroborate the statement of the complainant.th
4. Similarly P. W. Dayo has also not supported the prosecution and he was declared hostile as he stated that he was in his house at the time of incident. The cross-examination by A. P. P. Has not helped the prosecution at all and on the other hand he said that Harji was not in village, but was called by Police from Tando Soomro.
5. The only eye-witness to support the prosecution is the P. W. 3 Harji, who is father of the deceased and he stated that he had gone to see his daughter in village of Yousaf and he was in the house of Beejal, the complainant, and he went to jungle at about 5-30 p. m. To ease himself, when he heard cries. He, Beejal and Dayo went there, the girl was lying dead with hatchet injuries and bleeding.
Popat was also there. He also stated that he saw Popat causing injuries to Balho with hatchet on her neck and then Popat went away to his Village. He sat with the dead body while Beejal went to lodge the F. I. R. He stated that he was examined by the Police. He did not know as to why Popat killed her. In cross-examination he admitted that he resides 20 miles away from the wardat and he had come to collect wheat seed from Beejal. He further stated that there was cotton cultivation in those days and he stated that he was about four acres away from the wardat. He denied the suggestion that Popat's sister was to be married to his son in exchange of Balho and since Popat had refused to honour that promise, therefore, he was not on visiting terms with Popat. He denied that he did not witness the incident. He admitted that ten other persons of neighbourhood had collected at the wardat. He further admitted that there was affection amongst spouses.
6. Mr. Aftab Ahmed Akhund, the learned counsel for the appellant had submitted that this witness should not be believed as he is father of deceased and resides 20 miles away from the wardat. I do not find any justification to do so. There is no enmity between him and his son-in-law Popat proved on record. He cannot be called as an unnatural witness as he was father of the deceased and it was natural for him to visit her. Moreover, his own brother Beejal was also living in the same village and he could visit him as well.
7. Mr. Aftab Ahmed Akhund contends that he has given two different reasons of his visit, one was that he had come to meet his daughter and the other was that he came to collect wheat seed from his brother. It is quite possible that this witness could be having both the purposes in view when he had come to the house of his brother Beejal.
8. Mr. Aftab Ahmad Akhund says that P. W. Dayo has made the presence of these persons at the time of wardat as doubtful as he had stated Harjee was called by the Police. But, this statement appears to be designed to favour the defence because I find that the village of Harjee is 20 miles away and the F. I. R. Was lodged at 7-00 p. m. And since the village of Harjee was very far of it would not have been possible to secure his presence on the same day, but I find that the Investigating Officer, namely, P. W, Shah Nawaz has clearly stated that he had examined P. Ws. Dayo and Harjee on the same date and had thereafter arrested the accused,/appellant vide Exh. 12 and that Exh. 12 shows the arrest at 2200 hours. There is no allegation that Police had used any transport in securing the presence of Harjee or that there was road accessible to his village, and therefore, if Harji was not already in the village it would not have been possible for him to reach and so the statement of Dayo is not worth being believed. Even otherwise it is difficult to conceive that Harjee would give a false statement involving his son-in-law with the murder of his daughter without any apparent reason particularly, when there-was affection amongst spouses. I, there--fore, believe the statement of Harjee to the extent that he heard the cries and on hearing the cries he went to the spot and saw the girl lying dead with hatchet injuries and bleeding and Popat was there and he had seen Popat causing injuries.
9. The injuries on the person of the deceased were proved by Dr. Abdul Majeed P. W.
5. Who found incised injuries on lower jaw, right side of neck, back of neck, below right ear, front of right shoulder, back of right shoulder, right scapular region and three hand fingers were separated. The nature of the injuries showed a clear intention on the part of the assailant to kill the deceased. The prosecution has also tried to prove that blood-stained clothes were recovered from the person of the accused/appellant and the accused/appellant had also led the Police party and produced blood-stained hatchet from under bushes, but it was rightly pointed out by Mr. Aftab Ahmad Akhund that mashir Yousuf has not supported the prosecution and had stated clearly that no blood-stained hatchet was produced by the accused/appellant in his presence and further stated in cross-examination that the blood-stained clothes were lying in the jeep, when he was called by the Police.
10. Mr. Aftab Ahmad Akhund, the learned counsel for the appellant further contended that the clothes or hatchet have not been sent to the Chemical Analyser, and therefore, it may not be said with certainty that there was human blood on those articles. Submission is justified, and therefore, those articles have to be left out of consideration. The prosecution had also proved the judicial confession made by the accused Popat before Mr. Shamsuddin P. W, 7, who was Mukhtiarkar and F.
C. M., Hyderabad. The confession was recorded on 5th October, 1978 which was the next day of the arrest and I find that Mr. Shamsuddin had taken the usual precautions of informing the accused that he was not bound to make confession and he had given three hours to the accused for reflection, got his hand cuffs removed and put him in his chamber under supervision of his peon.
He had also searched the person of the accused /appellant and did not find any mark of injury on his person nor the accused/appellant complained of any such injury. He was of the view that the confession was voluntary. The confession is to the following effect:- "Yesterday at about 3-00 O'clock after making and taking tea, I and my were both went to collect wood. I got sudden fits, due to which, I feel bitings in my stomach, "and pinches and bitings in my back with severe bitings in my brain and my tongue gets dried and I go out of my senses. I met the same fate even yesterday when we had gone to collect the wood. I had a hatchet in my hand, and therefore, in the same state. I gave the hatchet blows to my were. We are settled in the land of, Seth Kader whence we have, gone to collect wood at the railway line. As I was not in my senses, I do not recollect at which places I had given her hatchet blows."
11. Mr. Aftab Ahmed Akhund had argued that Shamsuddin had admitted that the S. H. O. Was allowed to get copy of the confession recorded by him on that day and he had further admitted that the accused was handed over to the Police for taking him to judicial lock-up. I do not consider it of much consequence that the S. H. O. Was allowed to get the copy of the confession. In respect of handing over the accused to the same Police for being taken to judicial lockup. Mr. Murtaza Hussain, the learned counsel for the State had submitted that since the accused/ appellant was remanded to judicial custody, therefore, it was mere temporary custody to the Police and was of no consequence. Mr. Murtaza Hussain submitted that the accused in his statement, under section 342, Cr. P. C. Has admitted to have made: the statement, but he merely had stated that it was tutored confession and was neither true nor voluntary and that he had been told by S. H. O. That after that statement he will be again handed over to the Police and that he would be maltreated and the women folks would be disrespected if he did not make the statement. That statement the Investigating Officer has in fact denied that he had tutored the accused/appellant and had given him an assurance of being let of and he had also denied that the accused/appellant was handed over to him after recording his confession. I consider the confession to be true and voluntary and I find that the inculpatory part of this confession where the accused/appellant admits to have caused hatchet injuries to the deceased is supported by the statement of P. W. Harji In fact this confession further appears to be voluntary on account of the fact that the accused has tried to exculpate himself by stating that he had caused the injuries under a fit. The fit part of it has not been proved by the accused nor he has even put a suggestion either to Beejal or Dayo or even Harjee that Popat accused/appellant was subject to any fits, and therefore that particular portion of the confession has to be disregarded. Under section 64 of the P. P. C. The appellant could get out of the offence if he had proved that at the time of causing injuries, by reason of unsenseness of mind, he was incapable of knowing the nature of the act. The burden of the plea under section 84 of P. P. C. Is however upon the accused and he has utterly failed to discharge the burden of that plea by not making even a statement to that effect under section 342 of Cr. P. C. Or by examining any one in his defence or even by putting some suggestions of that type to the P. Ws. In fact he failed to suggest these questions even to P. Ws. Beejal and Dayo who had given statements in his favour and had failed to support the prosecution evidence. I am, therefore, of the view that the confession was voluntary and the inculpatory part of the confession is duly supported by P. W. Harji while exculpatory part of the statement is not proved and was intended merely to get out of a difficult situation and the same also proves that it was a voluntary confession. Moreover, since, the appellant has not alleged any violence by the police after he was remanded to judicial custody inspite of the fact he had made confession, which was exculpatory nature it shows that the Police had neither exercised and influenced upon him nor had threatened him of any maltreatment.
12. The prosecution has, therefore, brought home guilt to the appellant by the statement of Harjee and proving that the confession was voluntary. Mr. Aftab Ahmad Akhund had submitted that there was no motive for the offence, and therefore, there could be no reasonable cause of the murder.
The submission is correct to the extent that there is no motive proved but it is not necessary that motive must be proved in every case as the state of mind of the assailant is known to him alone.
Mr. Aftab Ahmed Akhuad further submitted that other independent person who were available at the wardat had not been produced. But since I believe Harjee and further believe that the confession was voluntar therefore, non-examination of other persons is of no consequence particularly when the complainant and his son appeared to have gone back on their previous statements. It appears to the that the complainant side has softened in their attitude against the accused/appellant, and therefore, two of them who are the brother and son of P. W. Harji have supported the accused/appellant. One reason may be that there is a minor son of the appellant, who is to be looked after. But the same has not affected the veracity of the prosecution case and it has been proved beyond reasonable doubt. Mr. Aftab Ahmed Akhund had argued with a great deal of force that F. I. R. Could rot be used for any purpose. I do agree with him, and therefore, I have not used it.
13. In these circumstances, this Appeal is found to be without merit and is dismissed.
14. Mr. Aftab Ahmed Akhund had submitted that since the complainant side had softened it's attitude therefore a lenient view may be taken but I find that section 302, P. P. C. Does not allow any other sentence except that of death or imprisonment for life and since only the sentence of life imprisonment has been awarded to the appellant, therefore, this Court has no further power of showing further leniency. Any further leniency can be shown only by the Provincial Government or Central Government if they are approached in the matter.