Aziz Ahmad vs State of U.P.

The appellant has preferred this appeal against the judgment dated 29101991 passed by Vth Addl. Sessions Judge, Lucknow convicting him under Section 302, I.P.C. and sentencing him to life imprisonment and a fine of Rs. 1,000/ and in default to further undergo six months R.I.

The appellant as well as Ashfaq Alam deceased both were residents of Bihar. The deceased hailed from Purnia district of Bihar. Both were young persons in their twenties. Within the jurisdiction of Hazratganj Police Station in Nanpara House, Star Montessori School was functioning of which P. W. 4 Mohd. Zameer was the Manager. P.W. 6 Khilawan was working as Chowkidar of the school and used to reside in a room of that building. The deceased as well as the appellant were working as watch repairers in two different watch shop although owned by same person, situated in Aminabad area. The Manager of the school had rented out a room in the building of the school to the deceased and the appellant where they used to reside. P.W. 2 Wasiqur Rahman complainant also belonged to Purnia district of Bihar. Father of the deceased had taught the complainant in a Primary School there.

The murder of Ashfaq Alam took place during the night of 17/18101989 in the same room in which he and the appellant used to reside together which was a part of the school building. This murder was not seen by anyone. P.W. 3 Dr. Heera Lal Mehrotra had conducted postmortem examination of the deadbody of Ashfaq Alam on 19101989 at 2.30 p.m. He found multiple incised wounds on different parts of the body which according to him would have been inflicted during the night of 17/18101989. According to Dr. Mehrotra Ashfaq Alam died because of antemortem injuries inflicted on him.

F.I.R. of the case was lodged by P.W. 2 Wasiqur Rahman on 18101989 at 10.30 a.m. at Hazratganj Police Station in which none has been named as an accused. However, it is mentioned that his suspicion was that the appellant had committed the murder of Ashfaq Alam. It is mentioned in the F.I.R. that P.W. 4 Mohd. Zameer came to the house of the complainant at about 8.00 a.m. and informed him that P.W. 6 Khilawan Chowkidar had informed P.W. 4 Mohd. Zameer that deadbody of Ashfaq Alam was lying in the room where the appellant and the deceased used to reside. Deadbody was bearing injuries and blood was lying in the room. The appellant was missing. It is also mentioned in the F.I.R. that since Ashfaq Alam deceased had no relations in Lucknow city, therefore written report was being lodged by Wasiqur Rahman P.W. 4. Investigation was commenced by P.W. 7 Ram Prasad Bharti, Inspector of Hazratganj Police Station. He recovered two Inland letters one of which was addressed to the appellant and the other was addressed to the deceased. He also recovered samples of bloodstained and simple earth. He prepared a recovery memo regarding personal articles of the deceased. The bloodstained clothes of the deceased were also recovered. Similarly, blood stained cot etc. were also recovered. He interrogated the witnesses examined by prosecution in this case on the same day and prepared the site plan.

Investigation was completed by P.W. 9 Inspector R.P. Singh who submitted chargesheet after the accused was arrested. Proceedings under Section 82/83, Cr. P.C. had to be drawn against the appellant before he could be arrested.

The prosecution had examined 9 witnesses in all, out of whom P.W 2 Wasiqur Rahman is the complainant. P.W. 4 Mohd. Zameer is Manager of the School. P.W. 6 Khilawan is Chowkidar of the School, and P.W. 8 Km. Shamim Bano had turned hostile. P.W. 1 Syed Fakhrool Hasan had prepared Chik F.I.R. P.W. 5, Constable Ayodhya Prasad had taken the deadbody for postmortem examination. P.W. 3 Dr. Heera Lal Mehrotra had conducted autopsy of the deadbody of the deceased and the remaining two witnesses are formal.

No eyewitness account is available in his case and, therefore, prosecution case hinges on circumstantial evidence. It was stated by P.W. 6 Khilawan Chowkidar of the school building in a room of which this murder had taken place, that at about 9.00 p.m. he had seen the appellant and the deceased coming into the room during night. He was awakened by sound of the opening of the gate of the premises, one key of which used to remain with the appellant and the deceased and he saw the appellant going out of the gate of the premises with bloodstained clothes and blood stained hands. It is significant to find that P.W. 2 Wasiqur Rahman had lodged F.I.R. on the basis of the information given to him by P.W. 4 Mohd. Zameer who was Manager of the School. P.W. 4 Mohd. Zameer stated that information regarding murder of Ashfaq Alam was given to him by P.W. 6 Khilawan. It is strange to find that in spite of this information having been given by Khilawan there is no mention in the F.I.R. that immediately after the murder the appellant was seen going out of the gate with blood stained clothes and hands. Only this much has been mentioned in the F.I.R. that the complainant had suspicion that the deceased was done to death by the appellant. The prosecution has also neither given any evidence regarding motive nor anything had appeared during investigation. The motive may not be very material in those cases where eyewitness account is available but where the case depends upon the circumstantial evidence, the motive assumes its own importance. Not only that, there is no evidence of motive but on the other hand P.W. 6 Khilawan admitted that he had never seen the appellant and the deceased quarrelling with each other. On the other hand, he has seen them living with amity. Learned Additional Government Advocate urged that the appellant owed an explanation as to how murder of Ashfaq Alam was committed when he was also present in the room. It is no doubt true that the appellant should have in ordinary course given an explanation but this circumstance alone is not sufficient to uphold conviction of the appellant because it does not lead to the only inference that it was appellant alone and none else who had committed this murder. Suspicion, howsoever strong it may be, cannot substitute for proof. The room where murder was committed is situated in the outer part of the building which is easily accessible from the gate, and therefore, possibility that there was another person also in the room of the deceased, cannot be ruled out. Khilawan stated that boundary wall of the premises was 34'' high whereas the Manager Mohd. Zameer stated that it was 7'' high. Whatever height of the boundary wall is taken it was not difficult for any one to have crossed the boundary and come into the room where the deceased and appellant were living.

It is also worthy of notice that P. W. 2 Wasiqur Rahman complainant stated that he wrote the F.I.R. according to the directions of the Police and therefore, the F.I.R. has to be taken with a pinch of salt. Khilawan also admitted that the appellant and the deceased frequently used to go out during night time. The complainant came to know about the incident a about 8.00 a.m. and he took more than 21/2 hrs. to lodge the F.I.R. whereas the Police Station is situated at a stone''s throw distance from the place of occurrence.

In view of the above, the prosecution has failed to bring home the guilt against the appellant beyond reasonable doubt. The appellant is extended benefit of doubt.

The appeal is accordingly allowed, the conviction and sentence of the appellant are hereby set aside. The appellant is acquitted for the offence under Section 302, I.P.C. He is in Jail. He shall be released from jail forthwith unless wanted in any other case. Appeal allowed.