MOHD HANIF Vs. STATE

JUDGEMENT

(1.) THIS appeal challenges a judgment and order of the learned Additional Sessions Judge dated 01.10.1997 in S.C. 91/1996. The accused/appellants were convicted for the offences punishable under Sections 302/37/34 IPC, and sentenced to undergo life imprisonment, besides fine. The Appellant Hanif was convicted, in addition, under Section 308 IPC and directed to undergo rigorous imprisonment for two years as well as pay fine. The appellant Sharif was, in addition, convicted under Section 27 of the Arms Act, and directed to undergo rigorous imprisonment for two years with fine.

(2.) THE prosecution alleged that in the early hours of 08.01.1994, the police received information through D.D. (Ex. PW-16/A), intimating about the occurrence of a crime in a room on the third floor of H. No. 9/4422, Gali No. 7, Ajit Nagar, Gandhi Nagar. THE police found goods scattered in the room on the third floor and the dead body of Vidya Ram Fauji in a pool of blood. Sardev, the injured was present and gave an eyewitness narrative, which was recorded as Ex. PW-10/A. This resulted in the registration of the First Information Report (FIR) in the case, Ex. PW-27/A, at 03.30 AM. Sardev, who deposed as PW-10 stated that he used to work in the factory of Vidya Ram (who had established and was managing a tailoring shop). THE factory was in the third floor; Vidya Ram used to reside in the same premises. It was further stated that PW-1 Ram Prakash and other employees used to reside in the premises and used to sleep on the third floor. Vidya Ram was sleeping in an adjacent room. He narrated having witnessed the deceased being assaulted by Hanif and Sharif. THE police recorded the statement; PW-10 was also medically examined, since he had sustained injuries, allegedly inflicted by the attackers upon him. THE prosecution alleged that after seizing the articles, collecting blood samples and lifting specimen finger prints from the spot, the investigation commenced, which evidently led to the arrest of the accused/appellants on 15.01.1994 and the subsequent recovery of objects, pursuant to their disclosure statements. After completion of investigation, a charge sheet was filed; the Appellants denied their guilt and claimed trial. THE prosecution relied on the testimony of 31 witnesses, besides placing several exhibits on the record. After considering these and the submissions made on behalf of the parties, the Trial Court convicted the Appellants and sentenced them in the manner described previously in this judgment.

(3.) LEARNED APP argued that too much weight cannot be attached to the inconsistencies between the testimonies of PWs-1 and 10. Clearly PW-10 was an eyewitness, who received injuries as a result of the assault. He had by all accounts heard the commotion and gone to investigate the matter. In the process, he was criminally attacked by the accused, whose motive was to rob Vidya Ram and kill him. LEARNED APP submitted that both PW-10 and PW-1 were consistent that the appellants worked with Vidya Ram and used to stay there like other co-employees. The evidence also suggested that even though there was no light in the premises, there was adequate light outside in the neighbourhood, to enable identification of the assailants. Tracing the sequence of events, it was urged that upon hearing the commotion, PW-10 apparently told PW-1 that it would be necessary to go and find-out what was happening. They discovered that the room door was bolted from outside; as a result, they used the window to reach the place. PW-10 reached the place where the incident occurred first and was, therefore, attacked by the accused. PW-1, who was following him, happened to witness the attack; he also saw that the accused were assaulting Vidya Ram and as a result of the fright, went up. However, a cumulative reading of the evidence and these two witnesses clearly proved that it was the two accused, who murderously assaulted Vidya Ram Fauji and robbed him of ` 2 lakhs which he had kept to get his daughter married.