MOHD ASLAM Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri V.P. Srivastava, Senior Advocate, assisted by Sri H.C. Misra, learned counsel for the appellant, learned A.G.A. for the State of U.P.

(2.) This bail application has been moved with a prayer that the appellant may be released on bail during the pendency of this appeal, which has been filed against the judgement and order dated 31.8.2010 passed by the learned Additional Sessions Judge/ F.T.C. No.1 Saharanpur in S.T. No. 336 of 2009 whereby the appellant has been convicted under section 302 I.P.C. and sentenced for life imprisonment with a fine of Rs. 10,000/- in default of the payment of fine, the appellant was to further undergo sentence of one year, the appellant has been further convicted under section 201 I.P.C. and sentenced for 3 years R.I. with a fine of Rs. 5,000/- in default of payment of fine, the appellant was further to undergo maximum sentence of six months, both the sentences were to run concurrently.

(3.) It is contended by the learned counsel for the appellant that it is a case in which FIR has been lodged by the appellant alleging therein that he has committed the murder of his wife by way of throttling and caused injury by using knife blow. There is no eye witness to support the prosecution story. At the stage of trial, the appellant stated that he was tortured by the police and he was compelled to write an application on which an FIR was registered. According to the FIR the appellant was having friendship with the deceased for the last four years, in the beginning, the deceased was serving at a Nursing home of doctor Gupta, thereafter, she was serving at doctor Garg Hospital in Roorkee, about one year prior of the alleged incident, the appellant was married with Yasmin, since then the deceased was threatening the appellant to defame him. She was demanding Rs. 2 lakhs. The wife of the appellant was a teacher in Rainbow Public School. On 24.4.2009 she had gone to her college, at that time the appellant was alone at the house, at about 11.00 a.m. the deceased came to the house of the appellant and demanded money, she was tried to be persuaded by the appellant but she was not agreed. Thereafter, she started shouting and indulged in scuffling, she was trying to drag the appellant outside his house by saying that she would defame him in the eyes of the whole of mohalla, then due the fear of defame in a perturb condition, the appellant pressed the neck of the deceased, she was taken to the bath room and her neck was cut by knife and thereafter, by bring his wife from the school, she was left to her parent's house, at about 8.00 p.m., Rajesh came to his house to know the whereabouts of the deceased Kamla, but he was told by the appellant that the deceased was not at his house, thereafter,the dead body of the deceased was thrown outside the house from the back door, the bath room was washed, the appellant was disappointed and his sole was condemning him. The appellant was having the respect of law that is why he reduced in writing what had happened for necessary action. The FIR was registered at the police station on 25.4.2009 at 6.05 a.m. in respect of the incident allegedly occurred at 12.00 O' clock in day, on 24.4.2009 the appellant himself went to the police station where he was arrested. Thereafter, at the pointing out of the appellant the purse and mobile was recovered beneath the over bridge, its recovery was made on 25.4.2009 and at the pointing out of the appellant the recovery of the dead body of the deceased was made which was lying under the tree of guava and pomegranate (Anar) by disclosing the fact that she was killed by him in his house, thereafter, she was shifted to the place of recovery, the recovery of the dead body was made on 25.4.2009, on the same day from the house of the appellant, a polythene bag was recovered in which the pass book of the deceased and her cloths were found/recovered, at the pointing out of the appellant one knife was recovered on 25.4.2009 from the Janakpuri Railway Bridge, which was used by the appellant in causing the injury on the person of the deceased, blood stained pant was also recovered on 25.4.2009, which was recovered from the washing machine of the first informant on the same day, a blood stained earth was taken from the place of the body and blood stained floor of the deceased was also taken in possession by the I.O., the recovery memo were prepared. According to the post mortem examination report incised wound and ligature mark around her neck were found. P.W. 1 Boby is not an eye witnesses, but she came to know with a person who committed the murder of the deceased and surrendered before the police P.W. 2 Jugnu, brother of the deceased has been examined before the trial court, who proved the some recovery memo, but he was not knowing that the appellant after committing the murder of the deceased had confessed before the police. This witness was declared hostile by the prosecution. Deepak Gorver P.W. 3 has also been examined. He stated that he was not knowing the place from where the dead body of the deceased was recovered. This witness was also declared hostile. Rajendra Panchal P.W. 4 was examined who was a witness of the recovery of the dead body and other items, he stated that the signature was obtained on the blank papers and in his presence no recovery was made. He has also been declared hostile Anil Panchal has also been examined as P.W. 5, he did not prove exhibit Ka-6 by stating that the police has obtained his signature on blank papers. He has also been declared hostile. Rajesh Kumar P.W. 6 has been examined by the witness of the inquest report, He stated that inquest report was having the signature, he has also been declared hostile. Dr. Keshav Swami, C.M.O. has been examined, he prepared the post mortem examination report. He stated that the death of the deceased was possible on 24.4.2009 at about 4.00 O'clock in day. Dal Chand Pramod, Sub Inspector has been examined as P.W.-8, he is I.O. of this case, H.C.P. Ashok Kumar has been examined as P.W.-9, he proved the chick and G.D. of lodging the FIR. Sri Raj Kumar Gupta has been examined as C.W.-1, he stated that he was not knowing the deceased Kamla on 25.4.2009. The inquest report of the deceased was prepared on railway line. He was the witness of the inquest report. The total evidence against the appellant as mentioned above, at the most it may be said that the appellant had made the confessional statement before the police by way of lodging the FIR. The alleged recovery have not been proved by the witnesses examined by the trial court, the same is not admissible. On the basis of the evidence adduced the conviction of the appellant is not possible. The appellant was on bail during the pendency of the trial, he has not mis-used the liberty to bail, therefore, he may be released on bail.