Afsar Ali vs State

K.S. Rakhra, J.—Appellant Afsar Ali has preferred this appeal against the impugned Judgment and order dated 28.1.1982 passed by the IInd Additional Sessions Judge Rampur convicting him u/s 302/34 and 394 1397 IPC and sentencing him with life imprisonment on the first head and seven years RI with fine of Rs. 1500/- under the second head. By the same judgment, co-accused Jabbar who was tried in Sessions Trial No. 2000 of 1980 along with appellant has been acquitted by the trial, court.

Preceding facts against the appellant are that on 24.2.1980 deceased Behari accompanied with his two sons Dori Lal and Brij Mohan and one Chhote Lal P.W. 2 had gone to Panwaria weekly market under circle of Police Station civil lines District Rampur to sell his two buffalo calves. Ganga Ram P.W. 3 of village Narainpur and Ram Prasad of village Midholi had also brought their catties for sale. In that fair near the check post Ram Singh of village Megha Nagla settled the deal for purchase of the calves of Behari for a sum of Rs. 1360/-. How ever a dispute arose as to who would pay the scribing charges for the sale receipt. The said dispute was resolved by two strangers in the market who advised each of them to pay half of the scribing charges. The sale letter was accordingly executed and transaction was completed and the deceased kept the sale consideration in his pocket.

It is alleged that on their way back home, Behari and his younger son Chhote Lal P.W. 2 moved ahead whereas elder son Dori Lal P.W. 1 along with Ganga Ram P.W. 3 and Ram Prasad stayed back in the market for a short while to make some purchases. At about 3.00 PM Dori Lal, Ram Prasad and Ganga Ram were returning to their houses, when they saw the same two strangers catching hold and assaulting Behari with knife near bone mill. One of them was giving knife blows while the other was forcibly taking out money from the pocket of Behari at gun point. Behari''s younger son Chhote Lal was making hue and cry and was crying for help. When Behari fell on the ground, the two culprits on seeing Dori Lal etc. advancing towards them ran away towards the cloth mill. Behari died on the spot. The two culprits had robbed Behari of Rs. 1360/- which he had collected by selling his buffalo calves.

The place of occurrence was about 1� miles south from Police Station Civil Lines Rampur. P.W. 1 Dori Lal went to the police station and lodged a written report of the incident at 4.00 P.M. The police registered the FIR as Crime No. 77 of 1980 u/s 302 and 394 IPC. No-one was named in the first information report.

The informant resident of village Ladora, Police Station Pafwari District Rampur had given description of the two culprits in the first information report itself by stating that they were young persons aged about 30 to 32 years. One of them was dark complexioned of average height and stout. He was wearing white shirt and pyjama. The other one was short stature dark complexioned and was wearing white shirt with light blue stripes and white pyjama. The informant as well as his companions i.e. Ram Prasad, Ganga Ram as well as purchaser of the calves Ram Singh would be able to identify the culprits if shown to them.

Sri R.S. Chauhan P.W. 9 Sub-inspector of Police Station Civil Lines Rampur took up investigation. He recorded the statement of Dori Lal at the police station and then proceeded to the place of occurrence where he performed the inquest on the dead body of Behari and prepared all other relevant papers. The dead body was despatched for autopsy through constable Ajai Pal Singh and Braham Swaroop and blood stains and plain earth were collected by the investigating officer. He also prepared a site plan of the occurrence which is Ex. Ka. 18. The statement of Chhote Lal P.W. 2 and other witnesses were recorded on 25.2.1980. The investigating officer deposed in the trial that on 17.4.1980 he received information from a Mukhbir that two persons with illegal arms and ammunitions were coming from the side of Ashram. Working on this information he apprehended appellant Afsar Ali and his companion Jabbar at about 4.30 P.M. Illegal arms were recovered from their possession. They were immediately made Baparda on the spot and were lodged in the police lock up at the police station at 1735 hrs. Entry to this effect was made in G.D. No. 24 dated 17.4.1980, a copy whereof is Ex. Ka. 4. On a report given by investigating officer for conducting test identification parade of the aforesaid persons their identification test was conducted on 1.5.1980. Ex. Ka. 17 is the test identification report the genuineness of which was admitted by the defence. Appellant Afsar Ali was rightly identified by Dori Lal P.W. 1, Chhote Lal P.W. 2, and Ganga Ram P.W. 3 and they committed no mistake in identifying him. Jabbar who has been acquitted by the trial court was also identified by Dori Lal and Ganga Ram aforesaid but the trial court has acquitted him because Dori Lal, when examined in the trial, gave contradictory statement and was declared hostile. This left Jabbar with a single good identification which the trial court found not sufficient evidence to convict him.

In the trial prosecution had led link evidence to show that the appellant was kept Baparda from 17.4.1980 from the time of his arrest till conducting of his identification parade and nobody was allowed to see his face.

P.W. 5 Mohd. Hasan Head Moharrir of Police Station Civil Lines Rampur stated that on 17.4.1980 the appellant was lodged in the Hawalat of the Police station at 17.35 hrs and a corresponding entry was recorded in G.D. No. 24 and this detention was in connection with offence u/s 25 Arms Act. He has also stated that appellant was kept Baparda and on 18.4.1980 at 11.00 a.m. he was taken out of the Hawalat vide G.D. entry No. 15 and was handed over to constables Munendra Singh, Khan Chand, Vinod kumar and Suraj for being taken to District Jail. P.W. 8 Munendra Singh is one of the aforesaid constable who had confirmed the fact that appellant was kept Baparda and nobody was allowed to see his face. He was also produced Baparda before the Magistrate for remand.

Nine witnesses were examined in the trial court in all. Out of them Dori Lal P.W. 1, Chhote Lal P.W.2, Ganga Ram P.W. 3 are eye witnesses and had also identified appellant in test identification parade. P.W. 4 Ram Swamp is formal witness of inquest. Mohd Hasan P.W. 5 was Head Moharrir at the relevant time at police station Rampur about which reference has already been made. Dr. M.S. Seth P.W. 6 had conducted post mortem examination and had given his report Ex.Ka. 6. to the effect that victim had suffered punctured and incised wounds of various description on his body and in the opinion of the doctor Behari had died at about 3.00 P.M. on 24.2.80. Cause of his death was shock & haemorrhage as a result of ante-mortem injury. His report also shows that pleura, left lung and lever of the deceased were punctured. P.W. 7 Ram Narain is Munshi of Panwaria market and had scribed sale letter of the two calves of Behari sold to Ram Singh.

In the trial Ganga Ram P.W. 3 and Chhote Lal P.W. 2 fully supported the prosecution story with regard to time, date and place of occurrence and the manner in which robbers had attacked Behari and snatched away Rs. 1360/-. They also deposed that they were accompanying Behari in the market. Chhote Lal P.W. 2 was accompanying Behari also at the time of the incident whereas Ganga Ram P.W. 3 and Dori Lal etc. were following them with a gap of some time, as they had stayed back for making some purchases in the market. All of them stated that they have seen faces of the culprits and had identified them in jail and also in the court. They have clearly stated that they did not know the culprits from before.

Sri P.N. Misra, learned Counsel for the appellant contended that the appellant should be acquitted because the witnesses knew him from before and therefore, no value can be attached to the result of test identification conducted in this case. He has drawn our attention on the testimony of Dori Lal P.W. 1 who had supported the prosecution version fully in his examination in chief saying that the appellant was one of the culprits and he had identified him and he did not know him from before but on the deferred date of cross examination he stated that the appellant used to operate diesel engine pump for irrigating the fields in his village and he had done so in the field of this witness also. According to him both accused used to visit their village in connection with irrigation of fields by diesel engine pump. A perusal of his statement shows that while at one time he was saying that he knew the accused from before in connection with irrigation of his field but at another point he again reiterated that he did not know the culprit from before. He also denied the suggestion that Afsar and Jabbar had not killed and looted his father. When this witness was declared hostile and was cross examined by the prosecution he deposed that he was in jail for last twenty days in connection with some other crime and out of two accused persons of this crime one was also lodged in the same jail. On the previous date i.e. 23.4.1981 this witness and one of the accused of the present case were brought to the court together. He admitted that he was brought to the court in same vehicle in which accused was brought and the two of them had spoken to each other.

Close scrutiny of the deposition of Dori Lal P.W. 1 clearly shows that he was under threat from the accused and was under pressure on account of which he gave contradictory statements some time saying that he did not know accused from before and some time suggesting that he had seen the accused from before and knew them.

We are unable to accept the argument of Sri P.N. Misra, learned Counsel for the appellant that on the basis of the statement given by Dori Lal P.W. 1. it should be inferred that the appellant was known to other two witnesses Chhote Lal and Ganga Ram also. There is nothing on record to show that witnesses had any occasion to know the appellant from before. They have clearly stated that they did not know them from before. It is significant to note that there is no previous enmity between the appellant and the first informant or any of the witnesses. There is therefore, no chance of false implication. Further if the appellant was known to the complainant or witnesses from before and if they wanted to implicate him falsely in the case, the most convenient course for them was to have named him in the first information report itself. As stated earlier, the first information report does not name anyone as accused.

We are therefore, of the opinion that testimony of Chhote Lal and Ganga Ram can be safely relied upon and the same has been correctly relied upon by the trial court in holding Afsar Ali guilty of the aforesaid charges. Act of the appellant and his companion giving four cavity deep punctured wounds on the chest and abdomen of the victim clearly makes out a case of murder and the forcible snatching of Rs. 1360 would bring the ofence within the scope of Section 394 read with Section 397 IPC.

There is therefore, no illegality or error in the judgment of the trial court. The appeal has no force. It is accordingly dismissed. The appellant is on bail. His personal security bonds are cancelled. He shall be immediately arrested and sent to the jail to serve out sentences.

A copy of this Judgment be certified to the trial court for compliance.