' ABDUL SHAUJRUL SALAM, J.-This order will dispose of Murder Reference No, 134 of 1976 and Criminal Appeal No, 424 of 1976.
2. The prosecution case in brief is that Muhammad Wazir, P. W. 5, used to go early in the morning to his Karyana shop in the Main Bazar and his daughter Shamshad Begum (deceased) aged 14/15 years would bring his breakfast. About 7/8 days earlier than the occurrence dated 1-6-1975 while the deceased was bringing his breakfast, Muhammad Sherif alias Maulvi, appellant, cut dirty jokes with her and she retaliated by calling him names. The deceased narrated the incident to her father.
Therefore, the latter alongwith Muhammad Raman, P. W. (given up as won over) and his own brother Muhammad Nazir, P. W. 8 went to the father of the appellant and protested. The latter apologized and said that he would advise his son, the appellant, and restrain him from doing anything of the kind again. On the day of occurrence viz. 1-6-1975 at 6-30 a.m. Wild the complainant Muhammad %lair, P. W. 5 was sitting with Bashir Ahmad, P. W. 6 and Muhammad Ibrahim, P. W. 7 in a room of his house and smoking Huqqa and the deceased was sitting in the courtyard making tea, the appellant entered in the courtyard all of a sudden, gave a lalkara to Shamshad Begum (deceased) that he would avenge the insult and started giving blows with a chhuri on the face, chest, back, neck, arms and legs of Mst. Shamshad Begum. On their raising alarm, the appellant ran away waving the chhuri. The complainant alongwith his companions brought the injured to the hospital for admission. The injured was examined by Dr. Haft Ghias-ud- Din, P. W. I. On receipt of a telephonic message from the Hospital, Muhammad Anwar Khan, S. I., P.
W. 9 reached there and recorded the statement of the complainant, Muhammad Wazir, P. W. 5, at 7-30 a.m. Exh. P. A. Which was sent to the Police Station for recording of F. I. R. Exh. P. A/1 which was done at 7-40 a.m. The same day Le. 1-6.1975. He enquired vide application Exh. P. J. From the Medical Officer as to whether the injured was fit enough to make a statement to which reply was made in the negative vide Exh. P. J./1. The deceased died the same day at 9.15 a.m. And her post- mortem examination was conducted by the above-named doctor who found the following injuries :- {{TABLE}} "(1) Incised wound 4' x x muscle deep on right side face.
(2) Incised wound 3/4' x 4" x skin deep on the left side chin.
(3) Incised wound 1.1-4" x x chest cavity on the front of middle of chest. Slight to the right.
(4) Incised wound 3/4' x 4' x chest cavity on the left side of chest away from memory gland.
(5) Incised wound x x muscle deep on the left upper arm, deltoid region.
(6) Incised wound 3' x 1' x muscle deep on the inner aspect of left upper arm, in upper portion.
(7) Incised wound 1.1-4 x x chest cavity on the back of chest, below left scapula, just away from thoracic spinal column.
(8) Incised wound rx abdominal cavity at the left lower chest at the level of 11 thoracic vertebra.
(9) Incised wound 3/4' x x skin deep on the inner aspect of right upper arm.
(10) Incised wound 14' x 4' x bone deep on the front of right knee-joint.
(11) Incised wound 34' x x muscle deep on the inner aspect of left thigh in middle.
(12) Incised wound 1.1-2 x 4" x skin deep on the front of left knee joint. {{TABLE}} ' Scalp, skull, vertebrae membrane, brain, spinal cord, healthy. In chest-wells ribs and cartilage injured vide Injury Nos. 3, 4, 7 and 8. Pleura was injured vide Injury Nos. 3, 4 and 7. Plenty of bloody fluid present in both pleural cavity. Larynx and trachaea healthy. Right lung injured under Injury No
3. Left lung injured under Injury Nos. 4 and 7. Pericardium and heart and blood vessels healthy. In abdomen all the organs were healthy, except liver, which was injured under Injury No, 8.
' In my opinion the cause of death was shock and haemorrhage. Injuries Nos. 3, 4, 7 and 8 were sufficient to cause death in ordinary course of life. All the injuries were anti-mortem and caused by sharp-edged weapon. The duration between injuries and death was 3 hours approximately, while between death and post-mortem was within 4 hours approximately. The dead body, post-mortem report, police papers and garments of the deceased, were handed over to the police. Exh. P. M. Is the correct carbon copy of my post-mortem report while Exh. P. M./l is the sketch of injuries, Vide rukka No, P. N. I informed the S. H. 0,, P. S. City Wazirabad, about the death of Mst. Shamshad daughter of Muhammad Wazir. On the police application Exh. P. 1/1 reported vide my report Exh. P.
3/1 that Mst. Shamsbad Begum was not fit to make a statement.
' The Investigating Officer P. W. 9 took into possession blood-stained earth from the place of occurrence vide memo. Bah. P. B. And arrested the accused appellant the same day. He interrogated the accused appellant who led to the recovery from his house of blood-stained clued, P. 3 which was taken into possession vide memo. Esh. P. D. He also took into possession the blood- stained clothes Shalwar P. 4 and Kurta P. 5 from the person of the accused appellant, vide memo. &h. P. E. These recoveries were effected in the presence of Bashir Ahmad, P. W. 6 and Muhammad Ibrahim, P. W.
7. The accused appellant had injuries on his person and he was got medically examined. Dr. Hafiz Ghiasuddin, P. W. 1 examined him at 7-00 p.m. The same day viz. 1-6-1975 and found the following injuries I "(1) Incised wound r x 1/12'x skin deep on outer aspect of index finger of right hand at the level of second inter phalyngeal joint.
(2) Abrasion 1/4' x on the outer aspect of index finger of right hand. About half inch below Injury No, 1.
' Both the injuries were simple. Injury No, 1 caused by sharp object while Injury No, 2 by blunt object, within the duration of 12-13 hours. Exh. P. H./1 is my report, which is in niy hand and bears my signature."
' The blood-stained earth, blood-stained chhuri and blood-stained clothes of the appellant were found to be stained with human blood by the Serologist vide report &h. P. P. After investigation, the accused appellant was sent up for trial and the learned Magistrate First Class, Wazirabad committed him for trial to the learned Sessions Judge under sections 452 and 302, P, P. C. For having committed criminal trespass after making preparations to cause hurt and murder of Mst.
Shamshad Begum deceased vide order dated 21-7- 1975.
3. The complainant Muhammad Wazir appeared as P. W, 5 in the trial Court and supported the prosecution case as given above. He was supported in all material particulars by Bashir Ahmad, P.
W. 6 and Muhammad Ibrahim. P. W.
7. The defence of the appellant was bare denial and false implication before the learned trial Court.
He said that "Muhammad Sharif who resides in the first storey of the building in which house of P. W.
Muhammad Wazir is situate, developed illicit intimacy with Met. Shamshad Begum deceased. I informed P. W. Weak about it but he was annoyed and abused me. He has got me falsely implicated in this case". When asked about the injuries on his right hand, he said that "I work as a carpet weaver. On 1-6-75 at about 12-00 noon I suffered these injuries with a churri when I was engaged in weaving the carpet". The learned Sessions Judge accepting the evidence of motive, eye-witness account, medical evidence and the recoveries, found the accused appellant guilty under action 302, P. P. C. And sentenced him to death subject to confirmation by this Court. He, however, did not impose any sentence of fine because according to him the appellant seemed "to be a destitute and nothing may be recovered for payment to the heirs of the deceased as compensation". This is vide order dated l8-3-1976. Thus the case is before us for confirmation of sentence of death under section 374, Cr. P. C. And the appellant has also filed an appeal. Both these matters will be disposed of by this order.
4. Learned counsel for the appellant has contended that the motive is not proved against the appellant and the only witness is Muhammad Wazir, P. W. 5 who had said that the deceased had complained to him about the misbehaviour of the appellant. He has submitted that one of the witnesses, Muhammad Raman, has been given up and the other witness Nazir Ahmad, P. W. 8 besides being a brother of the complainant was also not present when the deceased had narrated about the misbehaviour of the appellant to the complainant. He has, next, contended that the three eyewitnesses are interested, the first Muhammad Wazir, P. W. 5 being a father of the deceased and the other two Bashir Ahmad, P. W. 6 and Muhammad Ibrahim, P. W. 7 being friends of P. W. 5 and refugees like him. He has also contended that Bashir Ahmad, P. W. 6 and Muhammad Ibrahim, P. W. 7 are chance witnesses and their statements that they had come to see one Muhammad Sharif living in the same house who was not available and while waiting they started smoking Huqqa with the complainant is all lame excuse. It is, next, contended that the inmates of the house and the other immediate neighbours have not been produced by the prosecution.
Consequently, there is no independent evidence against the appellant. He has, then, contended that if the witnesses were there, they would not have allowed the appellant to inflict injuries on the deceased without any interference and their saying that the appellant had threatened them is mere improvement because it had not been so stated by them in their statements before the Police. Lastly, the learned counsel has contended that the appellant was 14/15 years of age at the time of occurrence and his age has been recorded as 15 years by the committing Court. He has referred to Muhammad Afzal v. The State (1) and Rashid alias Kaka v. The State (2) to urge that the appellant is not liable to the extreme penalty of death.
5. Learned counsel appearing for the State has submitted that the case against the appellant is fully supported by the evidence on record. However, he has admitted that the appellant was 15 years of age, as recorded by the committing Court, at the time of the occurrence.
6. After hearing the learned counsel for the appellant at length as well as the learned counsel for the State and perusing the record with their assistance, we feel that there is no force in the contentions of the learned counsel for the appellant. The deceased was injured at 6-30 a.m. And was straight taken to the hospital. She was medically examined. On receipt of telephonic information of the arrival of the injured, the S. I. Muhammad Anwar Khan, P. W. 9 reached the hospital and recorded the statement of the complainant, father of the injured, at 7-30 a.m. Which contained all the material particulars and tames of the witnesses. From these facts, it would appear that there was hardly any time for the father or the injured, the complainant Muhammad Weak, P. W. 5, to either concoct a false story or falsely implicate the appellant No doubt, the complainant is father of the deceased but be is a natural witness because it was in his house that his daughter had been done to death. The presence of the two other witnesses Bashir Ahmad, P. W.
6 and Muhammad Ibrahim, P. W. 7 cannot be doubted simply because they happened to be refugees like the father of the deceased. They are not related with the complainant in any manner.
There is nothing on the record to show that these witnesses had any enmity against the appellant to falsely depose against him. Muhammad Ibrahim, P. W. 7 is an elderly man and has been serving as a Postman. He appears hardly to be a person who would depose falsely in a murder ease.
Therefore, it cannot be said that the eye-witness account implicating the appellant is not reliable.
Then the recovery of blood-stained chhuri, P. 3 and the blood-stained clothes of the appellant Shalwar, P. 4 and Kurta, P. 5 recovered vide memo. Exhs. P. D. And P. E. Respectively have been found
(1) PLD 1976 SC 568 (2) 1971 P Cr. L 1 976 to be stained with human blood vide the report of the Serologist Exh. P. P. These recoveries corroborate the ocular testimony. Then, the injuries on the appellant, an incised wound 1/12 x' skin deep on outer aspect of index eager of right hand at the level of second inter phalyngeal joint and an abrasion halt an Lah below the former, caused within a duration of 12-13 hours as deposed to by the Doctor, P. W. 1 would fit in with the time of occurrence. Explanation of the appellant that the injury had been caused by a churri while be was weaving at about 12-00 noon is not only belated having been given for the first time before the learned trial Court but is also inconsistent with medical evidence as regards the timing. Thus, the injuries on the appellant further corroborate the prosecution evidence. The plea of false implication has no substance and the appellant's statement that another Muhammad Sharif had developed illicit relations with the deceased and he himself had pointed that out to the complainant which caused the latter to falsely implicate him is far-fetched. If it were so, the complainant would have grouse against the aforesaid Muhammad Sharif and implicate him, rather than the appellant. The aforesaid Muhammad Sharif is a grown-up man having grown-up daughters of his own as deposed to by the eye-witness Muhammad Wazir, P. W.
5. Further, it is not the case of the appellant that the aforesaid Muhammad Sherif had committed the murder. In all the circumstances of the case, we are satisfied that the plea of false implication is without any basis. The ocular evidence coupled with the recovery of blood-stained chhuri, blood-stained clothes of the appellant and the injuries on himself leave no doubt that the appellant has rightly been found guilty by the learned trial Court.
7. Coming to the sentence, the learned Sessions Judge has observed that "the act of the accused was certainly wanton and dastardly. Despite his young age, therefore, I do not see any reason as to why extreme penalty be not exacted from him". Accordingly, he sentenced the appellant to death.
The act of the appellant was no doubt heinous and for that reason he has been found guilty. The question as to what sentence he should suffer has to be considered in the context of all the circumstances of the case alongwith a reference to his young age. The deceased was a young girl C of 14/15 years. The motive ascribed to the appellant is that he had indecent jones with her. Sho hai admonished him and complained to her father who had protested to the father of the appellant and the latter had promised to refrain the appellant from misbehaving in future. This had happened 7/8 days earlier to the occurrence. There is nothing on the record to suggest as to what had gone on during the 7/8 days and what exactly had transpired immediately before the occurrence. Circumstances immediately leading to the occurrence are undisclosed and are shrouded in mystery. The appellant is himself a youth of 15 years, the same age group as the deceased. In the two aforementioned authorities quoted by the learned counsel for the appellant, the age of the accused was taken into account for not imposing a sentence of death. In the second case, the accused was about 16 years of age. The sentence of death was substituted for life imprisonment. In the present case, the appellant was 15 years at the time of occurrence. Therefore, in all the circumstances of the case and in view of the youth of the appellant, extreme penalty of death is not warranted. Therefore, the sentence of death is not confirmed but the appellant shall suffer imprisonment for life. Sentence of fine is not imposed, as the learned Sessions Judge had not done so on the ground that the appellant was a destitute and nothing may be recovered for payment to the heirs of the deceased as compensation and there is nothing urged to the contrary.
8. Before concluding this order, it is to be noticed that the appellant was committed by the learned Magistrate to stand his trial under sections 452 and 302, P. P. C. For having committed criminal trespass after making preparations to cause hurt and murder by intentionally causing the death of Mst. Shamshad Begum deceased. Ho was put to trial on both the charges. However, the appellant was not put any question when examined under section 342, Cr. P. C. With regard to charge under section 452, P. P. C., nor, has the learned Sessions Judge said anything in relation to the charge under section 452, P. P. C. Section 240 of the Code of Criminal Procedure, 1898 provides that "When a charge containing more heads than one is framed against the same person, and when a conviction has been had on one or more of them, the complainant or the officer conducting the prosecution, may, with the consent of the Court, withdraw the remaining charge or charges, or, the Court of its own accord may stay the inquiry into or trial of such charge or charges. Such withdrawal shall have the effect of an acquittal on such charge or charges unless the conviction be set aside, in which case the said Court (subject to the order of the Court setting aside the conviction) may proceed with the inquiry into or trial of she charge or charges so withdrawn."
' In a case Emperor v. Sadasibo Mafia and others (1), some accused were charged under sections 449, 396 and 302, I. P. C. At the time of trial, the accused ware charged under section 302/34, I. P. C.
Two of them were found guilty and sentenced to death subject to confirmation by the High Court.
When the reference came up before a Division Bench, Rowland, J. In the leading judgment observed that "As regards the charge under sections 449 and 396 against accused 1 to 5, he (the learned Agency Sessions Judge appears neither to have cancelled these charges nor to have taken up the trial of them. The Sessions Judge ought to have recorded some order in respect of these charges and should not have left them in the air. He bas given no reason for not trying them t and he was not competent (under section 215) to quash the commitment, though he could (under section 240) stay the trial of some charges or allow them to be withdrawn on conviction being had on the murder charge ; in that case the consequences set forth in section 240 would follow in the event of the conviction being set aside".
' Conviction being upheld on under section 302, I. P. C. No separate order was passed in relation to the left out charges in the above...Mentioned case.
10. With reference to a case quoted by Shaukat Mahmood as 5 D L R 26 (which, however, is not available) in his commentary on Criminal Procedure Code, Vol. II, 1969 Edition, it is stated "it is not open to a Magistrate to pass no order on a charge framed against an amused person. The inference which would follow from not recording a conviction would be that the accused was found not guilty and was acquitted".
11. In the present case, since, the conviction of the appellant is maintained under section 302, P. P. C and he has been sentenced to imprisonment for life, it does not appear to be necessary to direst the learned Sessions Judge to examine the accused appellant under section 342, Cr. P. C. And record a finding with regard to the charge under section 452, P. P, C. As was not so done by the learned Division Bench of the Patna High Court in the case quoted above and it was part of the same transaction.
(1) AIR 1939 Pat. 35
12. With the above observation and subject to the modification in the sentence, the two titled matters are thus disposed of.