Iqbal Ahmad, Member
1. This is an appeal by Wali Dar against his conviction under Section 302, R.P.C. and the sentence of death passed on him. The charge against the appellant was that, on the night intervening between the 3rd and 4th of Jan. 1952, he caused the death of his sister Mst. Fazi by strangulation. The fact that on the night in question Mst. Fazi was strangulated to death is proved from the medical evidence in the case, and the sole question for consideration in the case is whether or not the charge under Section 302, R.P.C. was brought home to the appellant.
2. It is one of those cases in which it is not possible to be dogmatic but, after making due allowance for the fact that there are grounds for grave suspicion against the appellant the Board, in view of certain extraordinary features of the case and the extremely unsatisfactory nature of the evidence, is unable to share the conviction of the Courts below as regards the guilt of the appellant.
3. The case for the prosecution is that in the dead of night Wali Dar entered the room in which Fazi was sleeping, alone with Mst. Jainti, the wife of Wali Dar and certain children and there he strangulated her to death by fastening and tightening a rope round her neck. Thereafter he lifted the dead body on his shoulders and proceeded to the courtyard of Abdullah (P.W. 3) and put the same there.
4. On a perusal of the evidence recorded-by the Sessions Judge, it was manifest that certain matters having vital bearing on the case were left in a state of absolute obscurity and the Board, accordingly, summoned some of the important witnesses for further examination and recorded their evidence.
5. Wali Dar & his sister Fazi originally resided in village Shalhal. Fazi was married to one Jabbar Mir, resident of village Lachh. Fazi had two children by Jabbar Mir viz., Ali Mir (P.W. 5) a lad of about nine or ten years of age and Sona Mir who is about 5 or 6 years old. Jabbar Mir died in or about the year 1948. Jabbar Mir had 139 kanals of land in village Lachh, and after his death, at the request of Mst. Fazi, Wall Dar with his wife Mst. Jainti came to and began to reside in village Lachh with Mst. Fazi, and looked after the cultivation of the land. About two years after the death of Jabbar. Mir. Mst. Fazi married Rasul Wani (P.W. 1) son of Abdullah (P.W. 3) who also is resident of village Lachh and was the neighbour of Jabbar Mir. Rasul Wani's first wife Mst. Mehtabi is still alive and Rasul Wani has 4 children by her. It is, however, a fact that Mst. Mehtabi is a cripple.
6. The case for the prosecution is that the marriage of Mst. Fazi with Rasul Wani was bitterly opposed by Wali Dar, but this is disproved by the statement made before the Board
by Rasul Wali's father Abdullah (P.W. 3). Indeed the evidence recorded by the Board puts it beyond doubt that Wali Dar joined the marriage and partook of the feast given by Abdullah on the occasion of the marriage of Rasul Wani with Mst. Fazi. In view of this evidence the evidence tending to show that after the second marriage of Mst. Fazi there was bickering between her and Wali Dar, must be rejected.
7. It would be noted that the period intervening between Fazi's marriage with Rasul Wani and the murder of Mst. Fazi was about 8 months and, even though Mst. Jainti (P.W. 4) the wife of Wali Dar tried to prove that during this period there used to be quarrel between Fazi and Wali Dar, and the latter at times beat Fazi, the evidence, as a whole, negatives the truth of this statement and points to the conclusion that the brother and sister amicably lived together, and the brother throughout had a controlling hand in the management of the land originally owned by Jabbar Mir.
8. To begin with, therefore, the prosecution is up against difficulty of failing to attribute a motive to Wali Dar for the alleged commission of the dastardly crime by him. It was, v,aguely alleged that Wali Dar desired Mst. Fazi to transfer the land to him or, at any rate, to let him have a share out of the same. This, to say the least, is improbable, for the simple reason that, during the minority of her two children, Mst. Fazi had no right to give away the land that belonged to the two children. Again it was. further sought to be made out that Wali Dar entertained the apprehension that sooner or later he will be deprived of the land of Jabber Mir and possession of the same will be taken by Rasul Wani. This part of the prosecution case, however, receives a rude shock from the statement made by Rasul Wani (P.W. 1) before the Byard. He stated that no interference whatsoever was made by him in the control of the management of the land by Wali Dar, and that Fazi was agreeable to and held out a promise to let Wali Dar have one third share in the land on her two children attaining majority.
9. In view of what has been just stated, it is imperative to approach the consideration of the evidence in the case in the light of the cardinal fact that no convincing motive for the commission of the crime by Wali Dar has been brought home to him.
10. It is common ground that on the night in question Mst. Fazi and her two children were sleeping in a room in Jabbar Mir's house alone with Mst. Jainti and her two babies, and the room was bolted from inside. Wali Dar was sleeping in an adjoining verandah. It is also a fact that oh the morning of Jan, 4, the dead body of Fazi was first seen by Abdullah lying in the courtyard of Rasul Wani's house and the sole question for decision in the case was whether Wali Dar was responsible for the murder. The conviction of Wali Dar has been based by the Courts below wholly and solely on the testimony of Mst. Jainti (P.W. 4) and Ali Mir (P.W. 5) who profess to be eye-witnesses of the murder. In order to assess the value to be attached to the testimony of these two witnesses it is necessary to refer briefly to the events that, according to the prosecution evidence, followed the discovery of the dead-body.
11. It appears from the evidence of Abdullah (P.W. 3) that, no sooner he noticed the dead body of Fazi, he jumped to the conclusion that Wali Dar had murdered her, and his neighbours, to whom he immediately conveyed the news about the discovery of the dead body, also straightway said that Wali Dar was responsible) for the murder. Soon after the Numberdar, the Halqa President, etc. appeared on the scene and Wali Dar was taken into custody. It is important to bear in mind in this connection that till then there was not even a whispar either by Mst. Jainti or Ali Mir that they had witnessed the commission of the crime.
12. A report Ex. G. was then drawn up and the same was signed by Mohd. Sultan Numberdar and Jabbar Chowkidar of the village, Mohd Sultan was not called as witness in the case. Jabbar (P.W. 6) however, stated that he and Sultan got the report written by one Aziz Mir. The report was taken by the Numberdar & the Chowkidar and delivered at Police Station Handwara. Frem Nath, Sub-Inspector, (P. W. 12), who investigated the case, has stated before the Board that this report reached Handwara Police Station at about 3 p.m.. It further appears from his evidence that the distance between village Lachh and Handwara by roact is about six miles and by a short-cut foot path is about 4 miles, and that this distance could be covered on foot in about an hour and a half. It is, therefore, permissible to presume that the Numberdar and the Chowkidar did not leave village Lachh with the report till about 1 p.m.. In other words, there was an interval of about six hours between the discovery of the dead body and the despatch of the first report from the village. The report merely mentions the fact of the discovery of the dead body and is conspicuous by an entire absence of any reference to any suspicion being harbored against Wali Dar. The report is, therefore, proof positive of the fact that till the dispatch of the report neither Jainti nor Ali Mir had disclosed that they had witnessed the commission of the crime.
13. It is said that Rasul Wani was absent from the village on the night in question and had gone to village Yamlahr, which is 3 miles away, to attend some Niaz ceremony at the house of one Nura Mir. It is alleged that on 4th Jan. at about 9 a. m. one Shams Gujri, a servant of Abdullah, conveyed the news to Rasul Wani about the discovery of the dead body of Fazi. It is further alleged that Jamal Wani, the brother of Rasul Wani was also absent from the village on that night. The simultaneous absence of these two brothers from village Lachh is, to put it mildly, a bit extraordinary, and therefore the omission by the prosecution to call Nura Mir and Shamas' Gujri as witnesses to testify to the absence of Rasul Wani from village Lachh on the night of the murder is significant.
14. The case for the prosecution is that Rasul Wani, on receipt of the information, proceeded to Ms native village, saw the dead body, and then truth came to the surface with starting rapidity. Rasul Wani deposed that on reaching his village he forthwith enquired from Ali Mir and the latter then told him that Wall Dar had tied a rope round the neck of Fazi and strangulated her to death and, thereafter, removed the dead body from the room and put the same in the courtyard of Abdullah. It is said that Rasul Wani then immediately proceeded to the Police Station and there lodged a report Ex. P. A. In the report the alleged information given by Ali Mir to Rasul Wani is set forth. But there is no mention in the report of any enquiries having been made from Mst. Jainti, Ghulam Qadir, the Halqa President, (P.W. 7), however, stated before the Board that on the arrival of Rasul Wani in the village & on enquiries being made by him both Ali Mir and Mst. Jainti straightway disclosed the fact that Wali Dar had committed the murder. On this point it is impossible to reconcile the evidence of Rasul Wani with the evidence of Ghulam Qadir.
15. It has already been stated that it is common ground that on the night in question Fazi slept with her two sons and. Mst. Jainti in one & the same room. It is, therefore, manifest that, on the discovery of the dead body, Abdullah, the Numberdar, the chowkidar, the Halqa President and ali concerned must have made close enquiries from Jainti and Ali Mir about this mysterious murder. Further if these two persons, who now pose as eye-witnesses of the incident, had then said what they say now, the fact that Wali Dar was responsible for the murder would have been mentioned in the report lodged by the Numberdar and Chowkidar. The conclusion, is therefore irresistible that till late in the afternoon of the 4th of Jan. neither Ali Mir nor Jainti disclosed any fact pointing to the guilt of the appellant. If Ali Mir, who is a lad of 9 or 10 years of age, had witnessed the murder of his mother, it is difficult, if not impossible, to believe that he would not have in the morning, on enquiries being made from him, disclosed the fact to the villagers. The story about the studious silence of Ali Mir till the alleged arrival of Rasul Wani from village Yamlehr and then prompt disclosure by him of the prosecution case in all its details appears to the Board a little too refined and a little too ingenious and has very much the complexion of fabrication.
16. Be that as it may, the case for the Prosecution, resting as it does on the testimony of the two alleged eye-witnesses, can succeed only if implicit reliance can be placed on their evidence. The evidence of these witnesses, however, does not command such reliance. The Board had the opportunity of watching Ali Mir in the witness-box. He is an extremely young and simple lad incapable, on his own initiative, of testifying in detail about various processes by which her mother was done to death and the dead body was lodged in the courtyard of Abdullah. Indeed, the Board is of the view that he is got-up witness and was well drilled to narrate the story that he did in Court.
17. There remains the evidence of Mst. Jainti, and the Board has no hesitation in rejecting her evidence. It is patent from her evidence that she is extremely hostile to the appellant. On every possible point, she attempted to stretch points against the appellant and went to the length of stating that the appellant was a dangerous character. Such being her attitude towards the appellant one would have expected her to come out with the story that she now narrates, at the earliest possible moment when the villagers assembled round the dead body. One, however, finds that in the report Ex. P.A. there is no mention of any enquiry having been made by Rasul Want' from Jainti nor is there any suggestion in that report that. Jainti supported the alleged statement of Ali Mir about the appellant being responsible for the murder.
18. Apart from this, it is impossible to overlook the improbabilities in the story given out by Jainti. To begin with she stated that the room being locked, the appellant jumped into the same through an aperture in the wall, and when he committed the crime shrieks were raised not only by Fazi but also by Jainti. It may be, that in the dead of night, those shrieks did not reach the ears of the neighbours, but what is curious is that even though Jainti and Ali Mir, according to their statements, were lulled into silence by the threat of being put to death, they unhesitatingly broke their silence on the arriva, of Rasul Wani in the village. The story about the removal of the dead body by the appellant single-handed is also a bit curious. Jainti first deposed that the body was taken from the room through the aperture in the wall. She, however, presumably appreciating the absurdity of this portion of her statement, corrected herself, and said that the appellant unbolted the door of the room and then took the dead body out and after depositing the dead-body in the courtyard came back to the room and bolted the same from inside and thereafter went out of the room through the aperture in the wall.
19. The conduct of the appellant on the morning of the 4th January, as disclosed by Mst. Jainti, shakes confidence in the truth of her statement. She admitted that, on coming to know of the fact of the murder of Fazi, the appellant clung to her body and was bitterly weeping. This, to say the least, is not the conduct of a person who, a few hours before, had mercilessly murdered his own sister who was a source of livelihood to him, his wife and his children.
20. It is clear from the evidence in the case that Wali Dar was, rightly or wrongly, regarded by residents of Lachh as the village-bully. This accounts for the fact that not one single resident of that village lent a helping hand to Wali Dar during the trial of the case and Jainti, his wife, went to the length of appearing as an eye-witness against him. Abdullah (P.W. 3) has stated that on the discovery of the dead body the suspicion of the villagers fell upon-Wali Dar, and circumstances point to the conclusion that by hook or crook, the villagers managed to induce Ali Mir and Jainti to implicate the appellant. The story told by Rasul Wani that he reached village Lachh at about 10. a. m. and then Ali Mir told him that the appellant was responsible for the murder is falsified by the evidence of the investigating Officer, Prem Nath. It is clear from, his evidence that till 1. p.m. nobody had connected the appellant with the commission of the crime. The mystery surrounding the two reports in the Police Station is not solved by the evidence in the case and the conclusion is irresistible that the 2nd report lodged by Rasul Wani was the outcome of a conspiracy between and belated decision by the villagers to implicate the appellant. On the evidence in the case, it is impossible to record a definite finding on the cardinal question as to whether Fazi was murdered in one of the rooms of Ali Jabbar's house or the scene of murder was some other -place. It follows that this must remain a casa of undetected crime.
21. On a consideration of the entire evidence in the case, the Board has come to the conclusion that there is room for grave doubt in the truth of the prosecution story and the appellant is entitled to the benefit of that doubt.
22. For the reasons given above, this appeal must be allowed, the conviction of and the sentence of death passed upon the appellant must be set aside and he should be acquitted, and the Board will humbly advise His Highness accordingly.