GULZAR Vs. STATE OF U P

JUDGEMENT

(1.) Heard Mr. Bijai Prakash Tiwari, learned Amicus Curiae, appearing for appellant and Sri Rishi Chaddha, learned A.G.A. for the State.

(2.) This Appeal under Sec. 374(2) of Code of Criminal Procedure 1973 (hereinafter referred to as 'Cr.P.C.), has been filed by convict-appellant Gulzar, S/o Intizar, against judgment and order dated 28.05.2004, passed by Court No. 6 of Additional District and Sessions Judge, Bijnor in Sessions Trial No. 8 of 2003, State of U.P. Vs. Gulzar, wherein judgment of conviction with sentence of life imprisonment and fine of Rs.5,000.00 under Sec. 302 I.P.C. and ten years' rigorous imprisonment with fine of Rs.2,000.00 under Sec. 376 I.P.C. has been passed, with this contention that judgment and order was against weight of evidence on record, sentence is too severe and excessive in the eyes of law. There was no evidence of committing murder and rape with Gulistan, rather trial was based on evidence of last seen, which was untrustworthy, but impugned judgment has been passed, relying the same.

(3.) From the very perusal of record, prosecution case, as reveals, is that Chick F.I.R. (Ext. Ka-5) was got registered as Case Crime No. 1733 of 2002, under Sections 376, 302 I.P.C. at Police Station Kotwali City, District Bijnor on 14.10.2002 at 00.05 A.M. upon written report, scribed by Shah Alam, S/o Mohd. Yameen, R/o Eidgah Road, Bijnor and singed by Mahfooj, S/o Maqsood, R/o Mohalla Kajipara, Police Station Kotwali City, Bijnor, presented by Mahfooj, against Gulzar, R/o Mohalla Kajipara, Police Station Kotwali City, Bijnor, with this contention that informant's niece Gulistan, aged about seven years, who was residing with her grand-mother at Mohalla Bhataan, had gone on 13.10.2002 at 11 A.M. to her parents' house at Mohalla Fareedpur Kazi, Eidgah Road, Bijnor, but she did not turn back till 2 P.M. She was being searched and at about 8 P.M. Wahid, S/o Subrati, apprised that he had seen Gulistan, going with Gulzar, towards sugarcane field of Ram Singh, situated near garden of Shamim. Informant along with Shah Alam, Mahboob Alam @ Chhotey and Chhotey @ Wasir and many others went at sugarcane field of Ram Singh, situated near garden of Shamim, where the dead body of Gulistan, having a leash tying over her neck and her saalwar being open, was recovered from "Bhuse ka Bugga". Gulistan was enticed and taken in above sugarcane field by Gulzar, where she was subjected to rape and murdered by tying leash over her neck. The dead body was lying at above field and this report was submitted. The criminal machinery was put in motion. Sub-Inspector K.L. Sharma, along with his police team, rushed towards the spot, from where dead body was recovered under above said position. The leash was got cut and taken into custody. Recovery memo (Ext. Ka-2) under handwriting and signature of this Sub-Inspector as well as S.H.O. and two witnesses was got prepared. The sleeper, recovered from nearby place, was taken in custody and recovery memo (Ext. Ka-3) was accordingly prepared. Inquest proceeding by way of preparation of inquest report (Ext. Ka-8) and other requisite papers i.e. letter R.I. (Ext. Ka-9), letter C.M.O. (Ext. Ka-10), letter Superintendent (Ext. Ka-11) and Challan Dead Body (Ext. Ka-12) were prepared. Autopsy examination of dead body was got conducted. Autopsy Examination Report (Ext. Ka-7) along with Inquest Report (Ext. Ka-8) established commission of rape with murder of deceased, which resulted filing of Charge Sheet (Ext. Ka-17) against Gulzar, S/o Intizar, for offence punishable under Sec. 376, 302 I.P.C. The Magistrate took cognizance over this Charge Sheet on 09.12.2002. As offence of murder was exclusively triable by court of Sessions, hence file was committed to court of Sessions Judge, Bijnor, which was made over to Court of First Additional Sessions Judge, Bijnor, where after hearing learned public prosecutor and learned counsel for defence, charge for offence of murder punishable under Sec. 302 read with offence of rape punishable under Sec. 376 I.P.C. was framed on 12.05.2003, which reads as under:-