1

Court No.52

AFR

CRIMINAL APPEAL NO. 2600 OF 1982

Aslam and others ….......... Appellants

Vs.

State of U.P. …................. Opposite Party

Hon'ble Vinod Prasad, J.

Hon'ble Y.C. Gupta, J.

( Delivered by the Bench)

All the three appellants Aslam (A-1), Imtiaz (A-2) and

Badrruddin @ Yusuf (A-3) have approached this Court being

aggrieved by the judgment and order of their conviction dated

5.5.2006 passed by Additional Session's Judge/ Fast Track Court

No.I, Mirzapur, in two connected Sessions Trials, S.T. No. 142 of

2001, State Vs. Aslam and others under section 302/34 IPC and 7 of

Criminal Law Amendment Act (relating the crime no. 929 of 2000)

and S.T. No. 143 of 2001, State Vs. Aslam, under section 25 Arm’s

Act (relating to crime no. 5 of 2001),both relating to P.S. Kotwali

Katra, District- Mirzapur. Learned Trial Judge after vetting the

evidences tendered before it, collating facts and circumstances of the

incident in question has convicted all the appellants u/s 302/34 IPC

and 7 Criminal Law Amendment Act and has sentenced them to

imprisonment for life with Rs. 10,000/- fine and in default in

payment of fine to undergo six months further R.I. for the first

Neutral Citation No. - 2012:AHC:110165-DB

2

charge and 4 months R.I. for the second charge. Both the sentences

were directed to run concurrently by the learned trial Judge. Hence

this appeal challenging the said conviction and sentences.

Prosecution story narrated briefly, as was slated in the written

F.I.R., Exhibit Ka-1, narrated during investigation and subsequently

deposed during Sessions Trial were that one Aslam Khan was a

resident of village Chitawanpur which is at a distance of 4 KMs from

Kazi Talab, Jangi Road. Aslam Khan had five sons Adam, Azam,

Daud, Munaf (informant), Mumtaz and Mustaq (deceased). Zubair

Khan is the son of Adam Khan and Parvez Khan, eye witness of the

incident and scribe of the FIR is his grandson being son of Zubair

Khan. Mustaq Khan (deceased) had five sons, out of whom one was

mentally unsound. Rest of his sons are Mustaq, Haider, Tauhid and

Shahmir. To complete the narration of pedigree, it is pointed out that

appellant Badruddin and Imtiaz are real brothers being sons of

Mohd. Haq @ Mak and Appellant Aslam belongs to a different family.

As a motive for the present crime it was alleged that Mustaq

(deceased) along with his aforesaid four sons had committed

murder of Asif @ Sonu, aged about 9-10 years of age, eldest son of

appellant Aslam Khan(A-1) one and half or two years prior to the

present incident and trial of that crime was proceeding on the date

when the present incident occurred.

3

On 20.12.2000 at 9.30 a.m., informant Munaf Khan, PW-1,

along with deceased Mustaq, his son Parvez (PW2) and Nasib were

going to Mirzapur. PW-1 &2 were on one cycle, whereas Nasib was

another cycle. Deceased was on a third cycle. Deceased was going to

the courts in connection with pairvi of the case of his son , whereas

rest of the three were going to nursing home of Dr. Meena

Vishwakarma to see Farzana, informant’s daughter, who was blessed

with a girl child on 18.12.2000, two days prior to the present

incident. At 9.30 a.m., when all the four of them reached at Kazi

Talab Jangi Road, in front of shop of Rajendra Vishwakarma,

carpenter, then all the three accused appellants approached them

from behind on a Suzuki motorcycle and rounded up Mustaq

(deceased). Each one of them, then shot at Mustaq (deceased) from

their country made pistols from point blank range causing him three

fatal gunshot injuries, as a result of which Mustaq, squatted on the

ground and died instantaneously. Assailants thereafter started

brandishing their weapons to terrorrise people, who started running

hither and thither. Doors of the houses and shutters of the shops

were pulled down. When informant and others tried to apprehend

murders, they were threatened with life and therefore terror striken

witnesses because of fearsome psychosis could not muster enough

courage to apprehend the culprits and kept themselves at bay. After

4

committing deceased’s murder accused escaped on their motorcycle.

After the incident, Munaf Khan P.W.-1 got scribed incident FIR

Ext. Ka-1, from his grandson Parvez Khan, P.W.- 2 and carried it to

the Police station Katra Kotwali, Mirzapur, at a distance of one mile

and lodged it the same day at 10.30 a.m., as crime no. 929 of 2000,

under section 302/34 I.P.C. and 7 Criminal Law Amendment Act.

Constable Shamshad Ansari, P.W.-3, registered the crime by

preparing chik FIR Ext.Ka-5 and G.D. Entry Ka-6 and SHO Surendra

Tiwari P.W. 5 immediately took over the investigation.

I.O., PW-5, first of all copied Ext. Ka-5& 6, and thereafter came

to the murder spot from where he collected bloodstained and plain

earth, sealed it and prepared recovery memo Ext. Ka-3, which was

signed by P.W.-1&2 both. Cycle of the deceased by which he was

going to the court was seized and handed over to PW1 and seizure

memo Ext. Ka-2 was penned down. I.O., PW-5,thereafter recorded

statements of PW1& P.W.2. At the pointing out of the informant, spot

inspection was conducted by the I.O. who also prepared the site plan

map Ext. Ka-9.Accused appellant Badruddin thereafter was arrested

on 21.12.2000 and his statement was recorded. On 22.2.2012, I.O.

copied the post mortem examination report of the deceased and on

the subsequent day 23.12.2000 interrogated witness Nasib. Other

witnesses of locality Amrit Lal and Riaz were interrogated by him and

5

thereafter on 27.12.2000 witness Tasdique was interrogated and his

statement was noted. On. 2.1.2001, rest of the two appellants Aslam

(A-1) and Imtiaz (A-2) were arrested from trisection of Baraudha

Kachar at 1 p.m. along with Suzuki Motorcycle UAD 394, which was

used during the crime by the accused persons. From the possession

of appellant Aslam(A-1), a country made pistol of .315 bore, a live

and an empty cartridges were recovered. One more live cartridge

was fixed in the barrel of the country made pistol. The recovered

weapon and cartridges were seized and a recovery memo was

dictated to SSI H.N. Pandey, which was signed by the I.O. and other

witnesses, which is Ext. Ka-10.Seal impression was also prepared.

Recovered weapon was also dispatched for forensic test after

obtaining courts order. Country Made pistol, live and empty

cartridges are material Ext.-2,3 &4.Bullets recovered from the

cadaver of the deceased are material Ext.5 to 7. Testing cartridges

are Ext.8,9,10 &11. Forensic science laboratory report is Ext. Ka-11.

Blood stained attires of the deceased, Ext. 14, 15, 16, 17, 18 & 19,

which was sent by the post mortem doctor were also sent for

chemical testing along with blood stained and plain soils, Ext.

12&13, and report in it’s respect is Ext. ka-12, which all has been

proved by I.O., P.W. 5. The motorcycle, which was used in the crime

was challaned under the Motor Vehicles Act. After copying the

6

inquest memo and other relevant papers prepared by PW6, and

concluding investigation PW5 charge sheeted all the accused vide

Ext. Ka-13.

Under the guidance of the I.O. PW5, S.I. Shiv Prasad Chandra,

P.W.6, had conducted inquest on the cadaver of the deceased and

prepared inquest memo Ext. Ka-4. Other relevant papers, copy of

chik Ext. Ka 14,letter to CMO, Ext. Ka-15,Letter to RI, Ext. Ka-16,

Seal sample, Ext. Ka-17,Form No. 13, Ext. Ka-18,Form No.33, Ext.

Ka-19, Sketch of cadaver, Ext. Ka-20, were also prepared by PW6,

who has proved it all. After the inquest proceeding was performed,

corpse was sealed and was handed over to constable Dayakant

Yadav and Sarvajeet to be carried to the mortuary for autopsy

purposes.

Crime against the appellant Aslam (A-1) under Section 25 Arms

Act was registered as cr. No. 5 of 2000,u/s 25 Arm’s Act, vide chik

no.2 of 2001 vide Ext. Ka-21 by CP Mohan Prasad Gupta, PW-7. The

said crime was registered in the GD by Constable Moharrir Kamla

Shankar Pandey, P.W. 8, at 2.55 p.m. on 2.1.2001. Copy of said GD is

Ext. Ka-22. S.I. Makhan Lal Kanaujiya, P.W.9 had investigated the

said crime, interrogated the witnesses and recorded their statements

and had prepared site plan map Ext. Ext. Ka-13, and concluding it

had charge sheeted accused appellant Aslam (A-1) vide Ext. Ka-24.

7

Sanction to prosecute the said appellant accorded by the District

Magistrate Sri Chandrama Prasad, on 30.1.2001 is Ext. Ka-25.

Autopsy on the corpse of the deceased was conducted by Dr.

K.K. Kanaujiya P.W.4 on 21.12.2000 at 3.15 p.m. and he had

prepared post mortem examination report Ext. Ka-8. In doctors

estimation deceased was having average built, and rigor mortis was

present in his both the extremities. In his thoracic cavity blood clots

were present. In the stomach semi digested food was present where

as small intestine had gases and large intestine had fecal matter and

gases. Doctor had noted following ante mortem external physical

injuries, which were sustained by the deceased:-

“fire arm injury:- (1) Entry wound 8cm x 3cm burst like

injury up to right lip corner to right cheek maxillary and mandible

bone multiple fracture. One bullet received deep in the mouth.

(2) Entry wound 1cm x 1cm in left chest 3cm below and medially

from left clavicle bone, and 3cm left side from sternum 9cm distance

upper medial side from left nipple. Edge inverted and slight bleeding

present and tattooing absent.

Tract Bullet enter and touch rib and coming low skin near left

nipple, one bullet recover below skin near left nipple.

(3) Entry wound 1cm x 1cm in the middle chest at a distance from

right nipple 9cm to middle. Edge inverted. Slight bleeding present

and tattooing absent.

Track Bullet enter and fracture IIIrd rib of right side and rupture right

lung and go left side near second rib (left) at back chest.

Bullet recover in back chest.”

8

Laid charge sheet in court by the investigating officer against

accused appellants resulted in registration of case against them in

the committal court of CJM, Mirzapur, who after summoning of the

accused appellants committed their case to the Sessions Court for

trial on 13.3.2001.

Learned trial Judge/Additional Sessions Judge, charged the

appellants under section 302/34 IPC and 7 Criminal Law Amendment

Act, which charges were read out and explained to them, and since

all the accused appellants abjured those charges and claimed to be

tried consequently to bring home their guilt, their trial commenced

by resorting to sessions trial procedure by the learned trial Judge.

Prosecution in an effort to substantiate framed charges and

establish appellants' guilt relied upon oral testimonies of nine

witnesses, out of whom informant Munaf Khan P.W.1, scribed and

eye witnesses Parvez Khan P.W.2 are the two fact witnesses. List of

former witnesses consists of constable Shamshad Ansari P.W.3, Dr.

K.K. Kanaujiya P.W.4, inspector, I.O Surendra Tiwari P.W.5, S.I. Shiv

Prasad Chandra P.W. 6, constable Mohan Prasad Gupta P.W.7,

constable Kamla Shankar Pandey P.W.8 and S.I. Makhan Lal

Kanaujiya P.W.9.

Accused in their statements under section 313 Cr.P.C. took a

common defence of their false implication because of the existing

9

enmity. They further stated that two fact witnesses were related,

inimical, partisan and got up witnesses and they had falsely

implicated them in a fabricated case after deceased was shot dead

by unknown assailants. None of the two witnesses were present at

the incident scene and FIR is ante timed and ante dated. To

substantiate their defence claim that the prosecution story had not

seen light of the day prior to conducting of inquest, as alleged by

the prosecution, they had examined S.I. Ram Adhar Rai, D.W.1.

As has already been mentioned herein above, learned trial

Judge/Additional Session's Judge/FTC I

st

, Mirzapur, through

impugned judgment and order, held the appellants guilty under

section 302/34 IPC and 7 Criminal Law Amendment Act and

therefore, convicted them for both the crimes and sentenced them,

as has already been recorded in the opening paragraph of this

judgment and hence is being eschewed from being repeated and

consequently challenge in this appeal has been made to the

aforesaid judgment and order by all the convicted and sentenced

accused.

On the aforesaid sketched background facts, we have heard Sri

V.P. Srivastava, learned senior counsel assisted by Sri Dharmendra

Vaishya, advocate for the appellants, Sri D.R. Chaudhari, learned

counsel for the informant and Sri N.K.S. Yadav, learned AGA for

10

respondent State for and against this appeal and have ourselves

perused and vetted through oral and documentary evidences exiting

on the trial court record.

Assailing the impugned judgment and snipping the prosecution

story and evidences and castigating it, it was vehemently argued on

behalf of the appellants that none of the two fact witnesses were

present at the spot. They, after receiving the message of deceased

murder, came to the murder spot, saw the dead body and after

inquest was over, that they, in consultation with the police, feigned

and fabricated FIR version to nail in the appellants because of

existing rivalry. FIR saw the light of the day after inquest was over

and was registered ante time. No independent witness nor even of

res-gestie came forward to lend credence to the prosecution story

which castes a serious doubt on the genuineness of the prosecution

version. Two fact prosecution witnesses examined during trial,

Munauv Khan P.W. 1 and Parvez Khan P.W. 2 both are related,

inimical, partisan, planted and got up witnesses and their testimonies

are unreliable to which no credence can be attached harangued

learned counsel. Facts as are mentioned in the inquest memo are at

variance with facts recorded in chik FIR and GD entry and hence

defence suggestion is quite probable on preponderance of

probabilities submitted learned counsel. On the second page of the

11

inquest memo no crime number etc. is mentioned which indicates

that FIR was not in existence at the time when inquest was

conducted. Munauv Khan P.W. 1 and Parvez Khan P.W. 2 were

endeavoured to be made omnipresent at all stages of investigation

and were made witness of inquest as well as of the recovery and,

therefore, all endeavour of the I.O. was to suppress actual incident

and consequently, analyzing on the touch stone of probability and

acceptability, none of the facts witnesses should be relied upon is the

argument, which was raised before us. It is further contended that

the story that informant was proceeding towards the nursing home

of Dr. Meena Vishwakarma along with other witnesses, was never

divulged to the I.O. during the investigation nor was sketched when

the FIR was being scribed and, therefore, the same is an embellished

concoction, which should be discarded from consideration as being a

fabricated version is yet another criticism by the appellants counsel.

Primarily, on these submissions, learned senior counsel contended

that the case of the prosecution has not been established by cogent,

reliable and creditworthy evidences and the appeal deserves to be

allowed and appellants be acquitted. On the motive part, it is urged

that prosecution witnesses had enough and compelling reasons to

frame the appellants in a teradiddle as, because of murder case of

son of appellant Aslam, two of the accused were still languishing in

12

jail and one of them was absconding. Therefore, there was enough

reason for the prosecution to avenge the said crime by implicating

the appellants in the present incident.

Both the respondent counsels submitted to the contrary and

canvassed that it was a day light incident with eye witness account,

prompt FIR and consistent medical evidence and consequently, entire

prosecution story coalescenced together present a conglomerated

credible version without any embellishment or concoction and,

therefore, conviction of the appellants is well merited, and does not

call for any interference by this court. It should be affirmed as no

contrary view, than what has been taken by the learned trial Judge in

the impugned judgment, is possible contended learned AGA. They,

therefore, argued that the appeal lacks merit and be dismissed in

full.

We have considered the arguments by both the sides in the

light of oral and documentary evidences and summated and collated

the facts and circumstances of the appeal. From our such an exercise

we find that some vital and important facts of the prosecution story

remains un-challenged. These facts include date, time and place of

the incident and murder of the deceased by gun fire. Since accused

have not challenged these vital facts, they have to be taken as

proved beyond doubt. Learned senior counsel has also not addressed

13

and harp much on these aspects and hence there is no difficulty in

concluding that the deceased was done to death on the date, time

and place alleged by the prosecution and had prosecution has

discharged it’s initial burden of proof by tendering credible evidences.

Thus the question which remains to be adjudicated and bone of

contention is as to whether appellants were involved in the crime and

orchestrated it or it was committed by unknown persons unnoticed

by the witnesses.

When prosecution evidences is summated to verify the veracity

of above aspect it transpires that from the initial stages prosecution

version is consistent that it were the appellants who had executed

the murder. At no point of time during the trial both the witnesses

budged from their such an allegation. They were subjected to serious

tests in cross examination but the defence failed to dislodge their

allegations. Learned appellant counsel castigated their testimonies

for the reasons that neither in the FIR nor during investigation it was

divulged by them that they were proceeding to the nursing home of

Dr. Meena Vishwakarma and that the deceased was going to the

court in connection with the murder of his son. It was further argued

that even on the first day of his examination informant had not

brought the documentary evidences from nursing home and it was

only on the subsequent day of his deposition that he had brought the

14

documents and, therefore, the entire story of going to nursing home

is a fabricated version. Second reason for castigation is that the

inquest report contained some different noting that the chik FIR and

GD entry. The noting, which were pointing out is in respect of

distances mentioned in the chik FIR and inquest report from the

police station to the place of occurrence and none mentioning of

crime number on the second page of the inquest memo. It was

further pointed out that on the second page of inquest memo wrong

Rapat no. was mentioned as Rapat No. 21, whereas the crime in

question was registered vide Rapat no.22, because FIR was not in

existence when inquest was conducted on the cadaver of the

deceased.

Dealing with both the submissions in seriatim, we first take up

the castigation regarding omission in the FIR and 161 Cr.P.C.

statement about proceeding towards nursing home on cycles and

deceased going to the court. The testimonies of both the witnesses

are that informant’s daughter Farzana was blessed with a female

child in the nursing home two days prior to the incident and both the

witnesses and their companion were going to see her when this

incident happened all of a sudden without their knowledge. PW1 had

lost his brother whereas PW2 has lost his father in a most dare devil

act in day light on a busy road. Informant had rushed to the police

15

station to register his FIR without any delay, as just after one hour it

was lodged after it was scribed meanwhile. Thus there was no time

left for the two witnesses to manufacture a false story. They must

have taken some time to compose themselves and come out of the

deleterious shock of losing their most dear one. How then it can be

expected from the informant to act with such prudence so as to

record each and every minute detail in his FIR. Without wasting any

time he dictated what was absolutely necessary to get his FIR

registered in Ext.ka-1. It was also deposed by PW1&2 that they

were on same cycle whereas deceased and other witness were on

separate cycles and when the deceased was shot at he was on the

other side of the road in front of Rajendra Vishwakarma’s carpenter

shop. They in no uncertain terms had stated that they were

proceeding towards Mirzapur. Considering the fact that a real brother

and a son had lost their real sibling brother and father, the omission

pointed out by the appellants counsel seems to be wholly

insignificant and insipid. FIR contains narration that the entire area

was engulfed with terror and insecure atmosphere. In such fact

scenario it was not expected of the informant to mention ignorable

facts in his FIR. Natural omission indicates that the FIR is neither

embellished nor fabricated and rule out defence suggestion of it

being cooked up, which chance to our mind was very remote and

16

scanty. FIR, therefore, was prompt which lends assurance to the

prosecution story. It is categorically mentioned in the FIR Ext. Ka-1

that the informant and the deceased were proceeding towards

Mirzapur. Coming to omission in 161 Cr.P.C. statements it is to be

observed that it shows that prosecution and witnesses have not

endeavoured to expatiate their story and introduce facts. We,

therefore do not find that omission to mention proceeding towards

nursing home and court by the witnesses and the deceased in any

anyway affects the authenticity and credibility of the prosecution

case and veracity of testimonies of PW1&2. On such facetious

reasons we are not inclined to throw out entire prosecution story and

discard eye witnesses testimonies as unreliable. For the above

reasons we hereby repel appellants first submissions.

Coming to the second snipping regarding discrepancies in

distance and Rapat No. in inquest memo and chik and GD, we find

that no doubt there is some differences and these mistakes do occur

in the documents, but the reasons for these are very evident and

obvious. Rapat No.21 and 22, both were related with the same

incident of murder of the deceased. While Rapat No. 21 was

dispatched from Mandi Samiti police out post, which was hundred

paces away from the place of the incident, vide Rapat No.22 FIR Ext.

Ka-1 was registered. Rapat No. 21 was a cryptic information. Inquest

17

was conducted by P.W. 6, whereas P.W. 5 had investigated the crime.

Thus because of slip of pen, if Rapat No.21 is mentioned in the

inquest memo, instead of Rapat No.22, it does not affect prosecution

case at all. Similarly instead of mentioning distance between place of

incident and police station, by mistake it was mentioned in the

inquest memo the distance between village of the deceased and the

place of the incident. These are insignificant errors because of which

eye witness account testified for the murder of most dear ones, who

had no reason to spare the real assailants cannot be ignored and

discarded. Such petty and trifling mistakes cannot be burgeoned to

absolve, perpetrators of a day light murder crime, of their guilt. In

such a view, these insignificant contradictions occurring in the

inquest memo without any supporting evidence, does not appeal to

reason to castigate the entire prosecution story. It has already been

observed herein above that FIR is prompt and seems to contain

actual narration about the incident and hence prosecution case

cannot be doubted because of such inchoate and tenuous assailing.

Special report was also dispatched with promptness at 11.30 a.m.

which further lends support to the prosecution case.

Ocular testimonies of P.W. 1 & 2 is corroborated by autopsy

report Ext. Ka-8 and deposition by doctor K.K.kanaujia P.W. 4.

Injuries as noted in the post mortem examination report were

18

sufficient to cause death in ordinary course of nature and deceased

had expired soon after sustaining those injuries and hence act of the

appellants is well within the ambit of murder punishable u/s 302

I.P.C. Defence has not been able to point out discrepancies galore to

make appellants conviction indefensible. It has also failed to extricate

appellants and point out that, but for the appellants anybody else

would have motive to commit deceased murder. Contrary to it,

appellants had sufficient motive to avenge the death of Aslam’s son.

In such a view, when the incident had occurred in day light with

consistent medical evidence and credible ocular testimonies of close

relatives, who had no reason to spare real culprits, we do not find

any reason to take a different view from that of learned trial Judge.

Wrapping up our discussion, we find no merit in this appeal, which

stands dismissed.

Appellants are in jail. They shall remain in jail to serve out their

sentence.

Let the copy of the judgment be certified to the trial court for

it's intimation.

Dt.3.9.2012

Arvind/Tamang-