Ashghar Ali @ Moharaam Ali vs State of U.P.

D. K. Trivedi, J.—The present Criminal Appeal arises out of the judgment and order dated 1261997 passed by the II Additional Sessions Judge, Rae Bareli, convicting the appellant Asghar Ali alias Moharram Ali under Section 302I.P.C. and sentencing him to imprisonment for life and to pay a fine of Rs.500/and in default of payment of fine to further undergo simple imprisonment for two months.

According to the prosecution case the incident took place in the night between 9h/10th of July, 1993 at about midnight. It is said that in the said night, deceased Guru Saran Lal Srivastava was sleeping on a cot outside his house under the Chhappar in village Hardoi, Police Station Bachhrawan District Rae Bareli. It is further said that Asghar Ali accused was also sleeping on a separate cot and Navneet and Puneet son of deceased Guru Saran Lal Srivastava were also sleeping there. It is further said that Smt. Sita Devi wife of Guru Saran Lal Srivastava was sleeping inside the house. According to the prosecution case, at about midnight Sant Saran Srivastava as well as his neighbours reached the house of Smt. Sita Devi hearing the alarm raised by Navneet and Puneet. The witnesses flashed their torches and saw that accused Asghar Ali, who was armed with blood stained Banka was trying to run away. It is said that the witnesses caught hold of the appellant alongwith the Banka and they also found the dead body of Guru Saran Lal Srivastava on a cot. A lantern was burning in the Chappar and in the said light also they saw and recognised Asghar Ali and caught hold of him. According to the prosecution case Smt. Sita Devi wile of Guru Saran Lal Srivastava and appellant Asghar Ali, who was the Baba of Bachhrawan Mazaar had developed illicit relations with each other. It is said that Asghar Ali used to visit the house of the deceased in order to exorcize (deliverance from he influence of evil spirits) his children. It is said that Guru Saran Lal Srivastava on several occasions had asked Asghar Ali not to come to his house but he continued to visit his house. It is further said that on 571993 Smt. Sita Devi had gone to Rae Bareli for Adult Education'' Training and on 971993 at about 7.00 p.m. Smt. Sita Devi had returned back to her house alongwith Asghar Ali. It is said that, due to the fact that Guru Saran Lal Srivastava did not like the visit of Asghar Ali, therefore, Asghar Ali started harbouring grudge against Guru Saran Lal Srivastava and it is said that the gruesome murder of Guru Saran Lal Srivastava was the fall out of the said enmity.

An F.I.R. in respect of this incident was lodged by complinant Sant Saran Srivastava, brother of the deceased at Police Station Bachhrawan on 1071993 at about 2.30 a.m. The distance of Police Station is four miles from the place of the incident. P.W. 7 S.I., Bal Mukund Pandey, was present at the Police Station at the time of registration of the First Information Report and, therefore, he was handed over the investigation of the case. He immediately reached the place of the incident and took Asghar Ali accused in his custody. He thereafter prepared Fard in respect of the blood stained Banka alleged to have been recovered from the possession of Guru Saran Lal Srivastava. He recorded the statements of the witnesses and prepared the inquest report as well as collected blood stained and plain earth from the place of the incident and after completing the investigation he submitted chargesheet against the accused.

The autopsy on the dead body of deceased Guru Saran Lal Srivastava was conducted by P.W. 4 Dr. P.N. Mahrotra, Medical Officer, District Hospital, Rae Bareli. Dr. Mahrotra found an incised wound 8 cm. x 2.5cm. on the right side of neck of the deceased. The Doctor further found, on internal examination, the cervical vertebrae cut. The Doctor also found both chambers empty, small intestines were full of gases and the large intestines were full of faecal matter and gases.

According to the Doctor the death was caused due to shock and haemorrhage as a result of ante mortem injuries.

The prosecution, in support of its case examined seven witnesses in all. Out of them P.W. 1 Sant Lal Srivastava, R.W. 2 Smt. Sita Devi and P.W. 3 Ram Pher are the witnesses of fact. P.W 4 Dr. P.N. Mahrotra conducted autopsy on the dead body of the deceased and proved the postmortem report Ext. Ka2. P.W 5 Nand Kumar is the witness of recovery memo. P.W. 6 Head Moharrir Ashok Kumar Misra proved the First Information Report as well as the chik F.I.R. and other General Diary entries. RW. 7, S.O., Bal Mukund Pandey conducted investigation in this case and submitted chargesheet after completing the investigation.

On the other hand the accused denied the prosecution case and stated that he has been falsely implicated in this case. He also denied that he knew Smt. Sita Devi from before. He further stated that he was sleeping on the Mazaar and the police arrested him and falsely implicated in him in this case

The learned Additional Sessions Judge after considering the evidence on record came to the conclusion that the prosecution has successfully proved the guilt of the appellant beyond reasonable doubt, and, therefore, convicted and sentenced the appellant as mentioned above. Aggrieved from the said judgment and order the appellant has filed the present appeal in this Court.

We have heard the learned Counsel for the appellants and the learned Additional Government Advocate at length and perused the record.

The main contention of the appellant''s Counsel is that in the instant case the First Information Report is not a genuine document and the prosecution story about the incident and arrest of the appellant on the spot is not free from doubt and, therefore, the learned Court below committed an error in holding that the prosecution successfully proved the guilt of the appellants beyond reasonable doubt.

On the other hand, the Additional Government Advocate stated that the statements of the three eyewitnesses and the fact that the appellant was arrested on the spot just after the incident alongwith blood stained Banka clearly prove the guilt of the appellant beyond reasonable doubt and, therefore, the learned Trial Judge committed no illegality or impropriety in convicting and sentencing the appellants in this case.

The learned Counsel for the appellant, in support of his contention pointed out some contradiction and infirmities in the statements of the witnesses and on their basis tried to say that the prosecution story is not worth to be accepted. He pointed out that initially it is said that the witnesses reached there on the spot hearing the alarm raised by Navneet and Punit but before the Trial Judge Smt. Sita Devi stated that she came out of her house on hearing the alarm raised by her husband as well as children. He further pointed out that Smt. Sita Devi in her crossexamination stated that the accused had already given one Banka blow and when he was going to give another Banka blow, she tried to save her husband but the accused did not try to assault her. He further pointed out that Smt. Sita Devi stated that when P.W. 1 Sant Saran Srivastava reached there she was sitting on the cot but this fact did not find place in the First Information Report. He further pointed out that Smt. Sita Devi further stated that when the witnesses reached there the accused was standing near the Charpoy and he was arrested by the witnesses. The learned Counsel further pointed out that the accused was chased and then arrested becomes doubtful in view of the statement mentioned above. All the above mentioned facts, in our opinion, are not fatal to the prosecution case. There are minor contradictions and discrepancies and on the basis of these minor contradictions and discrepancies, the prosecution case cannot be thrown out It is the consistent case of the prosecution that the witnesses reached there on hearing the sound of Navneet and Puneet and if Smt.Sita Devi further stated that she also heard the cries of her husband then the same cannot be said to be unnatural. Smt. Sita Devi in her statement clearly staled that she heard the alarm raised by the witnesses and her husband and saw the accused assaulting the deceased with Banka. The other witnesses also consistently stated that they heard the alarm raised by the children of the deceased and reached the spot and found that the appellant armed with a blood stained Banka and the deceased was found lying on the cot. The witnesses consistently stated that they arrested the accusedappellant with the blood stained Banka and thereafter they informed the police and when the police reached the place of the incident, they handed over the accused to the police. This fact further find supports from the statement of the Investigating officer who clearly stated that he reached the place of the incident just after the registration of the case and found the appellant in the custody of the village persons. There is nothing on record to show that these witnesses had any motives or reason to falsely implicate the appellant in this case. The case of the appellant that he was sleeping at Bachhrawan Mazar is, on the face of it becomes doubtful because he was arrested in village Hardoi. Apart from this, the Doctor who conducted autopsy on the dead body of the deceased found Banka injuries on the dead body of the deceased and, therefore, the medical report also corroborates the testimony of the eye witnesses.

There is very important piece of evidence i.e., blood stained Banka which was alleged to have been recovered just after the incident from the possession of the accused appellant. The Banka was sent for chemical examination and after chemical examination it was found that the Banka was stained with human blood. These facts further support and corroborate the testimony of the eye witnesses and, therefore, in these circumstances, it cannot be said that the prosecution has falsely implicated the accused in this case.

As regards the First Information Report, the same was lodged by the brother of the deceased immediately at Police Station Bachhrawan at about 2.30 a.m. in the F.I.R. each and every detail has been given and the contents of the First Information Report find support from the testimony of the eyewitnesses as well as medical evidence and other circumstances of the case. The contention of the learned Counsel for the appellant that this F.I.R. was antedated and antetimed is not acceptable. No doubt one of the witnesses, namely P.W. 3 Ram Pher stated that the report was dictated by the Darogaji at the police station. This statement appears to have been given under some confusion. P.W. 3 Ram Pher clearly stated that Sant Saran Srivastava written the report and he went in the Thana and lodged the report. He further stated that he remained outside the Police Station and did not enter the Thana. Thereafter he stated that the Darogaji himself wrote down the report which is on the face of it incorrect because the F.I.R. was a written report and the same was lodged by Sant Saran Srivastava. Sant Saran Srivastava consistently stated that he prepared the report at the village itself and thereafter went to the Police Station and handed it over to Munshiji.

The next contention of the appellant''s Counsel is that Navneet Kumar and Puneet Kumar sons of the deceased who are said to have witnessed the occurrence were not produced by the prosecution in this case and, therefore, a doubt arose about the prosecution version. No doubt. Navneet Kumar and Puneet Kumar were present at the time of the incident but Smt. Sita Devi has already been examined alongwith others and in these circumstances it was not necessary for the prosecution to examine each and every witness of the case and after considering, the circumstances as well as the testimony of the eye witnesses, recorded a finding that the prosecution has successfully proved the guilt of the appellant beyond reasonable doubt. The learned Counsel for the appellant has failed to point out any illegality in the said finding and we also do not find any illegality in the said finding. The evidence on record clearly proved that the appellant is the person who has committed this crime and the prosecution in our opinion, has successfully proved the guilt of the appellant beyond reasonable doubt.

In view of the aforesaid discussion we find that the appeal has got no force and is liable to be dismissed.

The appeal is dismissed. The judgment and order passed by the II Additional Sessions Judge, Rae Bareli convicting and sentencing the appellant are hereby confirmed. The appellant is in Jail. He shall serve out the sentence awarded by the Court below.