A.M. Khanwilkar, J. - (1.) This appeal emanates from the judgment and order passed by the High Court of Judicature at Allahabad dated 30th July, 2009 in Criminal Appeal No.1631 of 2008, whereby the High Court upheld the conviction recorded against the appellants for an offence punishable under Section 302 of the Indian Penal Code (IPC) but converted the sentence of death into imprisonment for life with fine, and confirmed the conviction under Section 201 of the IPC and sentence of 2 years' imprisonment and fine, as awarded by the Additional Sessions Judge/Special Judge, J.P. Nagar in Sessions Trial No.155/2004.
(2.) Briefly stated, one Shababul (PW7) gave information to the Police Station, Dedoli on 24th January, 2004 about one Zahida Begum, the second wife of appellant No.3, Akhtar Mohammad, son of Munshi, and their son Ishlam (aged about 11 years) who had gone missing from the village for the last two months, despite which their family members had not reported the matter to the police. The appellant Nos.1 and 2, Asar Mohammad and Asraf Mohammad respectively, are the two sons of appellant No.3 Akhtar Mohammad, from his first wife. Thus, deceased Zahida Begum is the step mother of appellant Nos.1 & 2, Asar Mohammad and Asraf Mohammad. On the basis of the aforementioned report, the Head Constable Surendra Singh (PW10), who was posted as Head Moharrar, made an entry in GD No.32 (Ext. Ka17). Acting on that report, PW9 Virendra Kumar Tyagi, Station House Officer of Police Station, Dedoli, visited the village along with SI Doonger Singh Verma (PW6), Mangey Ram Tomar, Nath Prakash Gupta, Constable Asqar Ali and SSI Harendra Singh (PW4). On enquiries with Asar Mohammad (appellant No.1/accused No.1), he disclosed that Zahida was his step mother and her son Ishlam was his step brother. He confessed that he, along with the other two appellants committed the murder of both Zahida and Ishlam and thereafter, dumped their dead bodies into the septic tank in the backyard of their house. He then led the police party to the septic tank and removed the lid with the help of Mangat and Jagadish Valmiki (PW8), wherefrom the dead bodies were taken out. The dead bodies were highly decomposed and virtually reduced to skeletons. The body of Zahida Begum was found tied with nylon cord (Ext. Ka18). Thereafter, the memo of recovery of the dead bodies was prepared by Harendra Singh (PW4). SI Doongar Singh Verma (PW6) conducted the inquest and gave the inquest report. He also prepared the necessary papers concerning the dead bodies and drew a site plan of the place of recovery (Ext.Ka19). The dead bodies were then dispatched for postmortem examination on the next day, i.e. 25th January, 2004. The Investigating Officer then recorded the statement of the inquest witnesses and proceeded to arrest Asraf Mohammad (appellant No.2/accused No.2), whose statement was recorded on the same day. The statements of Begum Banu (PW1) and Akram were recorded on 26th January, 2004. The appellant No.3 Akhtar came to be arrested on 10th February, 2004. The postmortem of the dead bodies was conducted by Dr. Kuldeep Singh (PW5) who noted that the body of Zahida Begum inter alia had fracture of Hyoid bone and Hyoid Cartilage which, in his opinion, was the cause of death due to asphyxia (fracture of Hyoid bone and Thyroid Cartilage) and that the death had occurred more than one month back. With regard to the dead body of Ishlam, he inter alia noted that the cause of death was due to asphyxia (fracture of Hyoid bone). After completion of the investigation, chargesheet (Ext. Ka21) was submitted before the jurisdictional Court on 11th February, 2004. The said Court committed the case to the Sessions Court at J.P. Nagar where it was registered as Sessions Trial No.155/2004. The Sessions Court on 5th August, 2004 framed charges against the appellants as under: "Charges I, Mushaffey Ahmad, Addl. Sess. Judge, hereby charge you, Asar Mohammad, Asraf and Akhtar as follows: That you on two months ago from 24.1.2004 (date of information to the PS) at 1 am in the village of Panyati within the limits of PS Didopli Distt. J.P. Nagar committed murder by intentionally or knowingly causing the death of Smt. Zahida and Ishlam and thereby committed an offence punishable under Section302 IPC and within the cognizance of this court of session. That you on above date, time and place having the reason to believe that certain offence to with murder punishable with death has been committed, did cause certain evidence of, the said offence, to disappear, to with threw the dead bodies of victims, into gutter with the intention of screening the said Asar Mohammad, Asraf and Akhtar from legal punishment, and thereby committed an offence punishable u/s 201 of the Indian Penal Code and within the cognizance of this court of Sessions. And I hereby direct that you be tried on the said charge of this court of session."
(3.) The prosecution examined 10 witnesses, namely, PW1 Begum Bano, PW2 Haji Iqbal, PW3 Nawab Jan, PW4 Harendra Singh, PW5 Dr. Kuldeep Singh, PW6 Doonger Singh Verma, PW7 Shababul, PW8 Jagdish, PW9 V.K. Tyagi and PW10 Surendra Singh. The defence of the accused was of total denial. They did not produce any evidence. The Sessions Court, after evaluating the entire evidence on record, eventually found that even though it was a case of circumstantial evidence, the prosecution had succeeded in establishing the guilt of the accused beyond all reasonable doubt and found them guilty of offences under Sections 302 and 201 of the IPC. As aforesaid, the Sessions Court vide judgment and order dated 1st March, 2008 awarded the death sentence with fine, for having committed the offence under Section 302 of IPC, and 2 years of imprisonment with fine in respect of offence under Section 201 of IPC to each of the appellants.;