FARMAN SHAH Vs. STATE

JUDGEMENT

(1.) THIS is an appeal filed by the accused -convict against the order of conviction under sections 302 and 392 R. P. C - passed by the Sessions Judge, Anantnag vide his order dated 23 -12 -1978, The accused - appellant has been sentenced to life imprisonment u/s 302 RPC and to rigorous imprisonment for seven years u/s 392 RPC. It has been, directed by the learned Sessions Judge, that the sentences shall run concurrently.

(2.) THE story of the prosecution which has been relied upon by the Sessions Judge, in brief, is that the appellant was serving as a house - hold servant of one Yousuf Peer in the village Seer -kanli Gund, Anantnag. On 29 -2 -1976 he told the Peer that he has to go to Bijbehara to see an acquaintcnce and on this pretext left the house. He, however, went to the house of the deceased, Ama Gujri, who also was living in the same village and with whom he is alleged to have developed some sort of acquaintance. One of the witnesses, namely Reshi Wagay went to the house of the deceased at the time of Khaftan prayers (at about 8 -9 P.M.) and saw the accused -appellant sitting with Ama Wagay in the latters house. Reshi Wagay PW took the deceased with him to his house, for meals as the deceased told him that the dinner at his own house had become cold. The deceased took his meals at Reshi Wagays house and returned home. Early next morning when Reshi Wagay passed by the house of the deceased, he found the doors of the house open. This raised a suspicion in his mind. He called out for the deceased but there was no reply. In the meanwhile some people were coming from the mosque after having offered their prayers. The witness told them that the doors of the house of deceased were open and there was no reply from inside the house. Thereupon a number of them went inside the house and saw that the deceased was lying dead in blood. The Lumberdar, Chowkidar and the Sarpanch were sent for. In the room all the house -hold goods, such as, boxes utensils etc. were found in pell -mell. They also found one foot of a boot and a kangri and an axe lying there. The whole village collected and one of them namely, Rahim Soft FW, told some of the persons present that he had seen the appellant at dead of night coming to the mosque and washing his hands. Rahim Sofi has claimed, and other witnesses have supported him .in his claim, that he always spends his nights in prayers in the mosque of the village though he was a private servant of one of the Peers residing in the same village. He as a habit offers Tahjud prayers (the prayers which are offered at or immediately after mid -night) On this particular night there was no light in the mosque. He heard some one opening the door of the mosque and entering into one of the bath rooms. Rahim Sofi PW called out as to who he was, but there was no reply. The person who had entered the mosque, however, lighted a match in the bath room and in that light Rahim Sofi saw that he was appellant who after washing his hand, and feet left the mosque without talking to him. Rahim Sofi continued to remain in the mosque to offer his naful prayers. When the time of morning prayers came and people began to assemble for prayers, Rahim Wagay also came to the mosque and Rahim Sofi told him what he had seen at night. Immediately thereafter people came in and said Ama Gujray had been murdered.

(3.) GHULAM Nabi PW the Numberdar of the village went to the police and lodged the report. Before going to the Police he went to the house of the deceased and saw that the deceased was dead in blood. He found the house -hold things in the room thrown" here and there and also saw a right foot of a boot and a kangri and an axe lying there On .the arrival of the police a number of articles were seized and papers were prepared. Kangri and the right foot of the shoe and the axe were kept separately arid the police enquired from the persons present to identify as to whom these things belong. From the house of the deceased only one white Chadar -Pati was found to be missing. It was on the 3rd day of the murder that the accused was apprehended by the police and brought to the village. The accused indicated to the police the place where he had allegedly hidden left foot of the shoe of which the other foot was found in the house of the deceased, the police prepared a document which the witness Numberdar also signed. A month or so before the occurance Yousuf Shah had told the Numberdar that the appellant was his servant. On investigation conducted by the SHO Anantnag, Mr. Paul who was helped by some other officers of the police, including the S. V. Mr. Watali the Police came to the conclusion after recording evidence of a number of witnesses that it was the appellant who had committed murder of Ama Gujri as the appellant was under the impression that the deceased was a moneyed person and wanted to deprive him of this money. The police recorded the statements of the Saif -ud -Din Koka, Rahim Sofi, Reshi Wagay. Rahim Wagay, Gh. Mohd Khan, Nisar Abroad, Qurnar -ud -Din, Gh. Mohd Shah, Gh. Hassan Head Constable, Mohd Iqbal, Munsiff Judicial Magistrate Anantnag; Dr. Abdul Rashid, Medical Officer who conducted the postmortem on the dead body, and Sh. G. M. Paul S. I. Police and also that of Makban Lal Raina, S.I.Police.