ASAR MOHAMMAD Vs. STATE OF U P

JUDGEMENT

(1.) THIS criminal appeal has been preferred against the judgement and order dated 01.3.2008, passed by Addl. Sessions Judge/Spl. Sessions Judge, J.P. Nagar in Sessions Trial No.155 of 2004, whereby the appellants have been convicted under section 302 I.P.C. and sentenced to death together with fine of rupees ten thousand each and in default of payment of fine, two years imprisonment. They have been further convicted under section 201 I.P.C. and sentenced to two years imprisonment and fine of rupees one thousand each and in default of payment of fine further imprisonment for three months.

(2.) BRIEF facts of the case are that the present case commenced on a report made by village Chowkidar namely, Shababul on 24.1.2004 at the police station Dedoli informing about missing of Smt. Zahida Begum , the second wife of Akhtar and her son aged about 10 years. The report precisely mentioned that the aforesaid two persons were missing for the last two months and that their family members did not report the matter of their being missing to the police. The report aforesaid is marked as Ext. Ka 16. Consequent upon this report, the Head Constable Surendra Singh who was posted as Head Moharrir made entry of the report in G.D. No. 32 which is marked as Ext. Ka 17. Virendra Kumar Tyagi, Station officer of P.S.Dedoli, acting on the report, visited the village alongwith S.I.Mangey Ram and S.S.I Dharendra Singh and interrogated Asar Mohammad who confessed to the crime and spilled the beans that Zahida was his step mother and her son was his step brother and that after committing their murder, the dead bodies were dropped in the Septic Tank in the courtyard of the house. On his pointing out, the lid of septic Tank was removed and with the help of Mangat and Jagdish Valmiki, the dead bodies were taken out which were highly decomposed and were reduced to skeleton and were without any strip of clothing. The body of Zahida Begum was found with nylon card tied round her feet and recovery memo of Nylon cord was marked as Ex ka 18. Memo of recovery of dead bodies was prepared by Harendra Singh. S.I.Dongar Singh Verma conductd inquest and prepared report. He also processed relevant papers of dead bodies and drew site plan of the place of recovery which is marked as Ext ka 19. The dead bodies were despatched for post mortem examination. On 25.1.2004, the investigating officer recorded the statements of inquest witnesses. Accused Ashraf was arrested on 25.1.2004 and his statement was recorded the same day. On 26.1.2004, statement of Smt. Begum Bano and Akram were recorded. Accused Akhtar was arrested on 10.2.2004. After completion of investigation, charge sheet was submitted in the courton 11.2.2004 which is marked as Ex Ka 21. The post-mortem on the dead bodies of the deceased was conducted by Dr. Kuldeep Singh. While conducting autopsy of the dead body of Zahida Begum, he noted that whole body had decomposed. No presence of hair all over the body. In Right arm, all bones were present and in left arm only Humerus bone was present. All Carpel bone and Meta-carpel bone and all phallynges were missing. He also found fracture of Hyoid bone and Hyoid cartilage. According to his opinion, cause of death was Asphyxia (fracture of Hyoid bone and Thyroid cartilage). The duration of death was more than one month.

(3.) PW-1 Begum Bano did not support the prosecution case. The precise she made before the Court. She stated that she had no intimate knowledge about Zahida nor had she arranged the marriage of Zahida with Akhtar as she belonged to Bihar while Zahida was a Bengali. She also denied knowledge about the children of Zahida or that she had any child from first marriage. However, she stated that she had heard of Zahid being missing from village people. She also stated that she came to know from village people that dead bodies of Zahida and Islam were recovered from the spetic tank situated in the court yard of Akhtar. She denied to have made any statement under section 161 Cr.P.C before the police. This witness was declared hostile and upon being cross examined, upon a question being put to her she pleaded ignorance that Zahida wanted certain land to be transferred in the name of her son. She however conceded the factum of coming to terms with the accused persons.