Punjab-Haryana High Court
State Of Haryana vs Ikram on 27 February, 2018
Author: A.B. Chaudhari
Bench: A.B. Chaudhari, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Murder Reference Case No. 1 of 2016
AND CRA-D-1702-DB-2015
Date of decision : February 27, 2018
Ikram ....... Appellant
VERSUS
State of Haryana ..... Respondent
CORAM : HON'BLE MR. JUSTICE A.B. CHAUDHARI
HON'BLE MR. JUSTICE INDERJIT SINGH
PRESENT: Mr. R.S. Rai, Sr. Advocate, with
Mr. Deepinder Brar, Advocate, for the appellant in
CRA-D-1702-DB-2015.
Mr. Vivek Saini, Deputy Advocate General, Haryana.
...
1. Whether Reporters of local newspapers may be allowed to
see the judgment? YES/NO
2. To be referred to the Reporter or not? YES/NO
3. Whether the judgment should be reported in the digest?
YES/NO
Per A.B. Chaudhari, J.
The present reference as well as CRA-D-1702-DB-2015, arise out of the judgment and order dated 10.12.2015, passed by M.M. Dhonchak, Sessions Judge, Mewat, by which he held the accused/convict Ikram son of Isab, resident of Village Manota, Police Station Punhana, District Mewat, guilty of murder of his daughter-Sahiba under Section 302, Indian Penal Code, and sentenced him to death.
Facts :
1 of 31 ::: Downloaded on - 11-03-2018 02:10:01 ::: The prosecution case is that on 15.02.2014, a telephonic information was received in Police Station, Punhana that there was a quarrel in Village Manota. On receipt of the said information, Inspector Allah Bux, Station House Officer, along with other police officials reached Village Manoha. Ikram-convict submitted an application, Ex.PW12/A to the Station House Officer. He stated in that application that on that day i.e. 15.02.2014 at about 8 a.m., he along with his brother Imran was present at the house and, later on, his father also came there.
Nasru son of Imrat, co-villager, had slaughtered a cow for serving his relatives. Over the quality of beef, there was exchange of abuses and Nasru son of Imrat, Hakmuddin son of Imrat, Khurshid son of Nijjar and Irshad son of Imrat came there armed with lathis, farsas and knives. They encircled the convict Ikram. They climbed the roof of his house by breaking the wall of East side. Nasru was holding a knife in his hand, which either belonged to him or the convict. Nasru, thereafter, gave a blow in the neck of Sahiba, the deceased, who was seven years old daughter of the convict. She died on the spot. Before that, Nasru had given a lathi blow on the right hand and with a brick on the finger of the left hand of the convict. At that time, Hakmuddin and Irshad caught hold of the convict and later on they fled away. The dead body of Sahiba was sent for post mortem and investigation was handed over to Inspector Sanjay Kumar, the then Station House Officer and as per para No.16 of Daily Dairy No.2 dated 16.02.2014, Nasru, Hakmuddin, Irshad, Khurshid, Sehju and Halima were found innocent during investigation made by Inspector Sanjay Kumar and it was revealed that, in fact, Sahiba, daughter 2 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: of the convict, had been done to death by the convict himself.
The convict was arrested on 20.03.2014 in a case arising out of FIR No.47 dated 15.02.2014 for commission of offence punishable under the Punjab Prohibition of Cow Slaughter Act, 1955 (for short 'the Act'), of Police Station Punhana. On his interrogation, he suffered a disclosure statement confessing about the present crime and his disclosure statement was obtained from Assistant Sub Inspector Hadi Khan and the convict was joined in the investigation in the murder case. On 21.03.2014, the convict got demarcated the place of occurrence and the knife used in the commission of the offence and the clothes worn by the convict at the time of the occurrence, were duly recovered. After completion of investigation, the challan was filed in the Court. The trial started and the prosecution examined as many as 13 witnesses whereas the defence examined one witness. The trial Court, after recording of the evidence of the prosecution witnesses and the defence witness, found the convict guilty of the offence of murder and convicted him as such and awarded death sentence. Hence the appeal by him and the reference made by the trial Court since it awarded the death sentence. Arguments:
(i)In support of the appeal, Mr. R.S. Rai, learned Senior Advocate, for the appellant, submitted that the prosecution had firstly relied on the alleged extra judicial confession to Aziz, who was not examined by the prosecution but he was examined by the defence as DW-1. Therefore, the prosecution did not prove the evidence regarding the alleged extra judicial confession, though according to PW-6, the convict was 3 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: produced before him by Aziz on 20.03.2014.
(ii)The Investigating Officer, who first made the investigation on 16.02.2014; namely, PW-11 Inspector Sanjay Kumar, though claimed that he had examined about 24-25 villagers during the investigation of the present offence out of hundred persons who had gathered, he neither named a single villager witness nor produced any record, including the statements under Section 161, Code of Criminal Procedure, of those witnesses whom he had examined. Thereafter, he came to the conclusion that the persons named by Ikram as accused of murder of his daughter were innocent whereas Ikram was the real culprit. His evidence is too vague to be believed.
(iii)Learned counsel for the appellant, then, contended that the father of the convict was arrested in FIR No.47 dated 15.02.2014 at about 8 p.m. on the same day for the offence punishable under the Punjab Prohibition of Cow Slaughter Act, 1955 but the appellant was never arrested in FIR No.47 nor there is any evidence that Ikram was absconding.
(iv)The complaint given by Ikram to the Station House Officer was first in point of time but was registered at 11.55 a.m. while information about cow slaughtering was given later on but still was registered as FIR No.47, one number before FIR No.48. The prosecution did not prove before the Court the original station dairy to explain the discrepancy.
(v)For proving the offence of murder against the convict, the prosecution has not brought any ocular evidence but has merely relied on the disclosure statement, demarcation report, recovery of weapon and 4 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: recovery of blood stained clothes of the convict and the medical evidence. The prosecution failed to prove its case and did not discharge the initial burden of proof but the trial Court raised a presumption under Section 106 of the Indian Evidence Act and convicted Ikram.
(vi)The alleged motive shown by the prosecution is highly improbable that the convict would kill his own daughter just to involve the persons named by him in his application, Exh.PW12/A, to the police.
(vii)No conviction could have been recorded by the trial Judge only on the basis of detection of blood on the knife and clothes as the girl had died in the house itself in which the appellant was also staying and, therefore, such evidence could not be relied upon. There is no explanation why the entire house was not searched on 15.02.2014 and 16.02.2014 itself when bowl and earth mixed with blood was collected. Hence recovery of knife and clothes after 1 month and 5 days was planted.
Learned counsel for the appellant, therefore, submitts that the appellant is liable to be acquitted.
Per contra, learned counsel for the respondent-State opposed the appeal preferred by Ikram and submitted that the reasons given by the trial Court for recording conviction of the appellant are based on evidence, which are legal, correct and proper, and there is no perversity committed by the trial Court by recording the finding of conviction. He further submitted that the disclosure statement, recovery of knife and blood stained clothes belonging to the appellant and silver bowl, which was blood stained, from the house of the appellant, coupled with the 5 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: evidence of witnesses, including PW-11 Sanjay Kumar and others, the prosecution proved its case beyond reasonable doubt and, therefore, the benefit of doubt could not have been given to the convict. The prosecution evidence shows that the appellant wanted to take revenge against the persons named by him in his complaint, which was given by him vide application, Exh.PW12/A but then it was for him to explain as to how his daughter died in his house. The presumption raised by the trial Court under Section 106 of the Indian Evidence Act has been correctly raised and it was for the appellant to explain how his daughter died in his own house and none else. He submitted that the prosecution evidence is trustworthy, convincing and, therefore, the finding of conviction deserves to be confirmed. According to him, the offence being gruesome, the trial Court has rightly sentenced the convict to death. The appellant furnished contradictory and false explanation in his statement under Section 313, Code of Criminal Procedure. He, therefore, prayed for answering the reference accordingly and for dismissal of the appeal filed by Ikram. Consideration :
With the assistance of the learned counsel for the rival parties, we have gone through the entire record so also the evidence tendered before the trial Court.
We would first like to express that undoubtedly a small girl of seven years; namely, Sahiba, daughter of appellant-Ikram was done to death by causing a chop wound at the anterior aspect of neck cutting skin, trachea, esophagus, both carotid arteries and jugular vein up to vertebra, as if some animal was cut. Undoubtedly, that was the highest order of
6 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: cruelty. The trial Court has relied on the evidence led by the prosecution and given the following reasons, which we quote hereunder:-
(i)there was a chop wound over the neck and the death was instantaneous, as per medical evidence.
(ii)On 16.02.2014, PW-11 Sanjay Kumar with PW-12 Allah Bux, Station House Officer, swung into action, went to the village, made investigations and found that the persons named by appellant-Ikram in his application, Exh.PW12/A, were innocent and that it was the appellant-Ikram himself, who had committed the murder of his daughter in order to take revenge against the persons named by him.
(iii)The appellant was arrested on 20.03.2014 in a case punishable under the Act and while in custody in that case, as deposed by PW-6 Head Constable Gajender Kumar, Aziz son of Yakub, produced Ikram before Inspector Allah Bux. Aziz got recorded his statement before Inspector Allah Bux, who stated about extra judicial confession to him by Ikram.
Upon interrogation, Ikram suffered disclosure statement, Exh. PW6/A, about his involvement in the crime and agreed to get recovered knife used in the crime and the clothes smeared with blood of his daughter from his house and also agreed to demarcate the place of occurrence and, accordingly, the seizures were effected by going to the house of the convict.
(iv)PW-9 Khurshid (who was named as murderer by Ikram in his application, Exh.PW12/A) stated that because he had informed the police about slaughter of cow by the appellant and his brother, Ikram had committed murder of his daughter to involve them and the 7 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: Investigating Officer had verified the facts and found the convict as murderer.
(v)The appellant failed to give any satisfactory explanation he being the inmate of his house. Hence with the aid of Section 106 of the Indian Evidence Act, adverse inference was liable to be drawn against him.
It is not in dispute that the incident took place on 15.02.2014 and the appellant had given an application, Exh.PW12/A to PW-12 Allah Bux when the police party immediately visited the village. In the said application, it was alleged that Nasru and others had a quarrel and exchange of abuses and during quarrel, Nasru gave a knife blow in the neck of the daughter of the appellant. It is the prosecution case that again on 16.02.2014 PW-11 Sanjay Kumar with PW-12 Allah Bux, Station House Officer visited the Village for investigation as he was the Investigating Officer and he recorded the statements of 24-25 villagers out of hundreds of persons present in the village and came to the conclusion that all the persons named by the appellant were innocent and that the appellant had caused the death of his daughter. It would be appropriate to quote the evidence of PW-11 in examination-in-chief, which reads thus:
"On 16.2.2014, I was posted as Inspector/S.H.O., Police Station Punhana. On that day, I along with Sub- Inspector Allabux and Constable Dinesh in Government vehicle driven by Exempted Head Constable Nanak went to village Manota for investigation of this case. We verified the facts from the villagers and found Nasru son of Imrat, Hakmuddin son of Nijjar, Irshad son of Imrat, Sehju son of Sarab Khan, Halima wife of Mishru and Khursheed son of Nijjar were found innocent in this case and complainant
8 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: Ikram son of Yusuf was found as accused in this case, as he had murdered his daughter and filed false complaint against above said person, who were found innocent in my investigation. I recorded the statements of witnesses under section 161 of the Code of Criminal Procedure, 1973. Accused is present in the Court today."
A careful perusal of the above evidence of PW-11 shows that he had gone to the Village on 16.02.2014 for investigation. He has not named a single villager from whom he had verified the facts about the offence in question. He has not disclosed as to on what basis he found appellant-Ikram as murderer of his daughter. He stated in the cross- examination that out of hundreds of persons, he had recorded statements of 24-25 persons under Section 161, Code of Criminal Procedure, but he cannot tell the names of those witnesses. He did not produce any record before the Court in support of his aforesaid statement that he had recorded 24-25 statements under Section 161, Code of Criminal Procedure, nor he has bothered to disclose the names of those witnesses whom he had examined and found appellant-Ikram as the real culprit. To my mind, his evidence is as vague as it could be and if he came to the conclusion that the appellant was the murderer, he ought to have produced the entire record of his investigation and proved the same before the trial Court. As narrated in the facts, para No.16 of Daily Dairy No.2 dated 16.02.2014 indicated about the investigation made by him but even this document was not produced on record of the trial Court. Thus, the contemporaneous record of the investigation, made by him immediately on the second day to say that the appellant was the murderer, was not produced and proved on 9 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: record and for which no reason/explanation is forthcoming. His parole evidence cannot be even considered much less believed. On the contrary, the trial Court has given the following reason for that purpose which is contrary to what PW-11 stated. The reason given is as under:-
".... It is true that the statements of so many persons are not available on the case file, but that is not fatal to the case of prosecution as PW11 might have verified the facts of the investigation without recording the statements under Section 161 of the Code of Criminal Procedure, 1973. ......"
The reason given is, obviously, in contradistinction to what PW11 Sanjay Kumar deposed in his examination-in-chief. The same reads as under:-
" ...... Out of 100 persons, I recorded the statements of about 24-25 persons under section 161 of the Code of Criminal Procedure, 1973 but I cannot tell the names of those witnesses. The accused persons named in the complaint made by Ikram (now accused) were found innocent during my investigation. .... "
As stated earlier, PW-11 Sanjay Kumar filed his report on 16.02.2014 vide para No.16 of Daily Dairy No.2 dated 16.02.2014 that it was the appellant who was the murderer of his daughter and others were innocent. If that was so, the prosecution has not tendered any explanation from any witness as to why the appellant was not arrested on 16.02.2014 or thereafter in the present crime for interrogation or as the case may be. What is strange is that he was arrested in a less serious offence of cow slaughtering, that too as late as on 20.03.2014 in FIR No.47; and during interrogation, he is said to have disclosed about the murder. But then his 10 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: father was already arrested on the same day i.e. 15.02.2014 at 8.00 p.m. Why the appellant was not arrested with his father? It is not the case of the prosecution that Ikram had absconded from the village or that he was not available.
The prosecution examined one of the persons who was named by the appellant as accused of murder of his daughter; namely, PW-9 Khursheed son of Nijjar. He is not an eye witness of the incident in question. But he stated that he and others were attempted to be involved by appellant-Ikram as he had informed the police about cow slaughtering in the yard of the house of the appellant by Ikram, Irfan and Imran sons of Yusuf and Yusuf himself. He also vaguely stated in his evidence that during investigation, it came to light that appellant-Ikram murdered his daughter and that the murder took place at 10.00 a.m. Again, he is silent about the basis on which he was saying so.
The prosecution examined PW-12 Inspector Allah Bux, who deposed thus in his evidence :-
"On 15.2.2014, I was posted as Sub-Inspector at Police Station Punhana. On that day, I received telephonic message to the effect that a quarrel had taken place in village Manota. On the basis of said information, I along with Head Constable Mohan Lal, Head Constable Ram Kumar, Constable Sarjeet in Government vehicle driven by Exempted Head Constable Nanak went to village Manota and Ikram presented written application Ex.PW 12/A, on which I made my endorsement Ex.PW-12/B and sent the same through Constable Sarjeet to the Police-Station Punhana, for registration of the case. I inspected the place
11 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: of occurrence and prepared rough site plan Ex. PW 12/C with marginal notes, which bears my signature. I took the blood-stained earth from the spot with the help of cotton and put in a plastic vial and then converted the same into a sealed parcel sealed with the seals of monogram of A.B. I also took a blood-stained bowl (Katora) and converted the same into a sealed parcel sealed with the seals of monogram of A.B. After use seal was handed over to Head Constable Mohan Lal. Both the parcels were taken into possession of police vide recovery memo EX.PW7/A, which was signed by Head Constable Mohan Lal and Head Constable Ram Kumar. On the same day, the dead body of deceased Sahiba was inspected and thereafter, I prepared inquest papers Ex.PW12/D. I recorded the statements of witnesses under section 161 of the Code of Criminal Procedure, 1973. .........
On 16.2.2014, I along with Inspector/S.H.O. Sanjay Kumar went to village Manota and verified the facts of this case. On verification, complainant Ikram was found as accused in this case and the persons named in the application/complaint were found innocent in this case. ......."
A reading of his entire evidence does not show as to why the appellant was not immediately arrested on 15.02.2014/16.02.2014 when PW-11 Sanjay Kumar and PW-12 Allah Bux came to the conclusion that the appellant himself was the murderer. It is further seen from his evidence that on 15.02.2014, he had inspected the place of occurrence and prepared the rough site plan. Not only that he had also taken blood stained earth from the spot with the help of cotton and put it in a plastic vial as also blood stained bowl and sealed the same. It is strange that 12 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: when he had inspected the place of occurrence i.e. house of the appellant, on 15.02.2014 itself, he did not claim that he had searched the entire house and that he did not find the clothes of the deceased and the appellant and the blood stained knife in the house. It is difficult to understand as to why both the police officers, PW-11 and PW-12, did not record the statements of the wife of the appellant and other male and female members of the family, which seems to be consisting of more than 5 members. The mother of the deceased i.e. wife of the appellant, could have disclosed the truth. It is significant to note that in the application, Ex.PW12/A, it was stated as under by the convict/appellant-Ikram:-
"...... after breaking open eastern wall of the house, all of them came on first floor of our house."
There is absolutely no investigation or verification of this fact mentioned in the application by any of the officers.
As to the arrest of the appellant, the evidence goes to show that it was Aziz, who had produced the appellant before PW-12 Inspector Allah Bux on 20.03.2014 i.e. after a period of 1 month and 5 days, and thereafter, in the disclosure statement to PW-12 Inspector Allah Bux, appellant had suffered the disclosure statement. Aziz has not been examined by the prosecution but he was examined by the defence, who supported the defence. None of the Investigating Officers, PW-11 and PW-12, have at all furnished any explanation as to what they were doing from 16.02.2014 till 20.03.2014, when the appellant was found to be the culprit as per report No.16 of Daily Dairy No.2 dated 16.02.2014 of PW- 11 Sanjay Kumar. It is only after his arrest on 20.03.2014 in FIR No.47 13 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: that he made the disclosure statement and got recovered knife and clothes. It is in this context, the delay of 1 month and 5 days, without any explanation, is fatal to the prosecution particularly because there were number of other members in the family of the appellant, who were in occupation of the house throughout, coupled with the fact that on 15.02.2014, PW-12 Allah Bux has no explanation to offer as to why he did not search the entire house or that despite search he did not find the knife and the clothes. In our opinion, the prosecution is guilty of withholding the important evidence from the Court; namely, para No.16 of Daily Dairy No.2 dated 16.02.2014, the investigation report by PW-11 Sanjay Kumar for which there is no explanation as well and in which report the appellant was found to be the murderer.
The burden to explain the delay in such a serious case of murder was surely on the prosecution, which has completely failed to furnish any explanation. It is important to note that para No.16 of Daily Dairy No.2 dated 16.02.2014 has not even been placed on the record of the trial Court much less proved. That was a very important document which the prosecution could not have withheld from the Court as it was the very first report filed by PW11 Sanjay Kumar about others being innocent and the appellant being the murderer. It was for the first time despite the above position that the prosecution claimed that on 20.03.2014, it was revealed that the appellant was the murderer and that too on the basis of disclosure statement made by the appellant which is not admissible in evidence.
The trial Court as well as the prosecution relied upon the 14 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: recovery of articles; namely, blood stained knife and clothes of the deceased and the convict, from the house of the convict and the demarcation was got made by him. All this is stated to have been done on 21.03.2014 i.e. after 1 month and 5 days. It is not in dispute that the appellant was residing with his brothers and father and female members in the same house where the murder is stated to have been committed. In all fairness, the prosecution ought to have examined the witnesses in the neighbourhood of the house of the appellant. The delay of 1 month and 5 days in making the recoveries must be looked with suspicion in the wake of the above facts. At any rate, since the deceased daughter of the appellant was murdered in the house itself, the recovery of blood stained knife, clothes of the convict and silver bowl could not be a circumstance, that too after 1 month and 5 days, to convict the present appellant. The prosecution miserably failed to prove the alleged incriminating evidence of recovery, etc. to discharge its initial burden of proof. In the case of Musheer Khan @ Badshah Khan and anr. v. State of Madhya Pradesh, AIR 2010 Supreme Court 762, the Apex Court stated thus in paras 48, 49 and 50:-
"48. Chief Justice Fletcher Moulton once observed that "proof does not mean rigid mathematical" formula since "that is impossible". However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been compared by Lord Coleridge "like a gossamer thread, light and as unsubstantial as the air itself and may vanish with the merest of touches". The learned Judge also observed that such evidence may be strong in 15 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence.
49. To my mind, the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. {See Raghav Prapanna Tripathi and others v. State of U.P., AIR 1963 SC 74}.
50. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused."
To sum up, the prosecution has failed to discharge its initial burden of proof. Not only the appellant but number of other members of family of the appellant were living in the house. The presumption under Section 106 of the Indian Evidence Act could not have been raised against the appellant by the trial Court. In the case of Ch. Razik Ram v. Ch. J.S. Chouhan and others, AIR 1975 Supreme Court 667, the Apex Court held thus in para-116:-
"116. In the first place, it may be remembered that the principle underlying Section 106, Evidence Act which is an exception to the general rule governing burden of proof
- applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant-respondent. It cannot apply when the fact is 16 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: such as to be capable of being known also by persons other than the respondent. ......"
At any rate, the case in question is one of giving benefit of doubt which should always go to the accused rather than the prosecution.
Hence the appeal is allowed and the appellant is acquitted of the charges levelled against him. The Murder Reference stands dismissed.
February 27, 2018 (A.B. CHAUDHARI)
Kang JUDGE
17 of 31
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(i) Murder Reference No.01 of 2016
State of Haryana
...Prosecutor
VERSUS
Ikram
...Accused-convict/Respondent
(ii) Crl. Appeal No.D-1702-DB of 2015 (O&M)
Ikram
...Appellant
VERSUS
State of Haryana
...Respondent
Date of Decision: February 27, 2018
CORAM: HON'BLE MR. JUSTICE A.B.CHAUDHARI
HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr.Vivek Saini, Deputy Advocate General, Haryana
for the State (in Murder Reference No.1 of 2016) and for the respondent-State (in CRA No.D-1702-DB of 2015). Mr.R.S.Rai, Senior, Senior Advocate with Mr.Deepinder Brar, Advocate, for the accused-appellant (in CRA No.D-1702-DB of 2015) and for convict-respondent (in Murder Reference No.1 of 2016). INDERJIT SINGH, J.
I, respectfully disagree from the view expressed by my learned brother Hon'ble Mr. Justice A.B.Chaudhari and therefore, vide separate judgment, I am giving my own findings.
18 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: This judgment shall dispose of above mentioned two connected cases arising out of the same judgment.
State of Haryana has filed Murder Reference No.1 of 2016 for confirmation of death sentence awarded to Ikram by learned Sessions Judge, Mewat, vide judgment dated 10.12.2015 and accused-appellant Ikram has filed CRA No.D-1702-DB of 2015 challenging the judgment of conviction and order of sentence dated 10.12.2015 passed by learned Sessions Judge, Mewat, whereby he was convicted under Section 302 IPC and awarded death penalty, subject to confirmation of the same by this Court.
The brief facts of the case are that FIR in the present case has been registered on the basis of the application given by present accused Ikram to SHO, Police Station Punhana, for initiating legal action. The contents of the application are as under:-
"It is submitted that I Ikram son of Yusuf caste Kureshi am resident of village Manota. Sir, today 15.02.14 morning at 8.00 I alongwith my brother Imran were at our house. After some time my father also reached home. Nasru son of Imrat caste meo resident of Manota made us to slaughter a cow to serve meat to his relatives. Regarding quality of meat there was exchange of hot words between us, upon which Nasru son of Imrat, Hakmudeen son of Imrat, Khursheed son of Nijjar, Irshad son of Imrat all residents of village Manota came to our house duly armed with lathi, Pharsa and knives etc. and they surrounded us and after breaking open eastern wall of the house, all of them came on first floor of our house. I myself saw Churri (big knife) in the hand of Nasru son of Imrat. Said knife either belongs to us or to Nasru son of Imrat and with the help of the said knife Nasru son of Imrat gave a blow on the throat of my daughter Saiba aged about 7 years and as a result of said injury Saiba met with death on the spot.
Nasru gave me a lathi blow on my right hand and gave a brick blow on finger of my left hand Hakmudeen son of Imrat and Irshad son of Imrat caught hold of me and then after releasing me they fled away.
Thereafter, Saibu son of Shorab Khan came to spot and Halima wife of Mishru also climbed on the roof."
19 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: On the basis of this application, FIR was registered. During the investigation, version of Ikram was found incorrect and it is found by the Investigating Officer that Ikram himself has committed murder of his minor daughter Saiba in the morning of 15.02.2014 on the first floor of his house and to mislead the police and to take revenge against Nasru, Hakmudeen, Khursheed, Irshad, Sehju and Halima, false application was given against them regarding murder of daughter of present accused-convict. The dead body was sent for post-mortem examination. Accused was arrested. Statements of witnesses were recorded. After necessary investigation, challan was presented against the accused-convict Ikram.
On presentation of challan, copies of challan and other documents were supplied to the accused-convict under Section 207 Cr.P.C. Finding prima facie case, accused-convict was charge-sheeted under Section 302 IPC, to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW-1 Dr.Praveen Raj Tanwar, who deposed that board of three doctors conducted post-mortem examination on the dead body of Saiba. In their opinion, the cause of death in this case was injury, which was a chop wound at anterior aspect of neck involving skin, trachea, esophagus, both carotid artery and jugular vein upto vertebra which was homicidal in manner and sufficient to cause death in ordinary course of nature. Injury was ante mortem in nature. He further deposed that probable time that elapsed between injury and death was minutes and between death and post-mortem examination, was within 06-36 hours. PW-2 Dr.Mohd. Rizwan Alam and PW-5 Dr.Raman Kapil, who were also members of board of doctors, deposed same facts as deposed by PW-1. PW-3 Head Constable Dharam Pal mainly proved the scaled site 20 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: plan Ex.PW3/A. PW-4 Constable Vijender Kumar deposed regarding delivering of special report to higher officers. PW-6 Head Constable Gajender Kumar, deposed that he was associated with Inspector/SHO Allabux and Aziz in the investigation of this case. He further deposed that Aziz son of Yakub produced accused Ikram before Inspector Allabux. He also deposed that on interrogation, accused Ikram suffered disclosure statement Ex.PW6/A, in which he admitted his involvement in this crime and he also stated that he could get recovered the knife, which was used in the crime and the clothes which were smeared with blood of his daughter from his house at Manota and also could get demarcated the place of occurrence. This witness further deposed that on 21.03.2014, in pursuance of disclosure statement, accused Ikram let the police party consisting him (this witness), Inspector Allabux and Aziz to his house at village Manota and he got demarcated the place of occurrence and also got recovered one blood-stained knife, one trouser of black colour having white lines, one blood-stained shirt of sky blue colour having white lines from the room of his house. Knife and clothes were converted into two parcels sealed with seal bearing impression 'AB' and same were taken into police possession vide recovery memo Ex.PW6/C. This witness further deposed that the blood-stained metallic knife is Ex.P1, blood-stained trouser is Ex.P2 and blood-stained shirt is Ex.P3 and these are the same, which were got recovered by the accused. PW-7 Head Constable Ram Kumar deposed that on 15.02.2014, he associated with Inspector/SHO Allabux and other police officials. Blood- stained earth which was lying near the dead body of Saiba was lifted with the help of cotton . Thereafter, a blood-stained bowl was also sealed with the seal bearing impression 'AB'. All the recovered articles were 21 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: taken into police possession vide recovery memo Ex.PW7/A. PW-8 Head Constable Jai Parkash, is a formal witness, who tendered into evidence his affidavit Ex.PW8/A. PW-9 Khursheed deposed that his wife Jarina is Sarpanch of Gram Panchayat of village Manota. There is ban of cow slaughter and selling of beef in the village. On 15.2.2014, Ahru and Sehju informed that Ikram, Irfan and Imran slaughtered a cow in the yard of the house and they violated the ban of cow slaughter imposed in the village. Then he informed the police in this regard and got registered a case against them i.e. FIR No.47 dated 15.02.2014. He further deposed that police had taken Yusuf and beef with them. Due to this enmity, Ikram murdered his daughter Saiba in the room at first floor of his house in order to involve him (this witness), Nasru, Hakmuddin, Irshad, Sehju and Halima, in a false case of murder of his daughter. This witness also deposed that on 16.02.2014, police came to the village and investigated the matter. During investigation, facts were verified and it came to the light that accused Ikram himself murdered his daughter. The police recorded his statement under Section 161 Cr.P.C. PW-10 ASI Hadi Khan deposed regarding recording of FIR Ex.PW10/A. He also deposed that on 20.03.2014, in case FIR No.47 dated 15.02.2014 for commission of offence punishable under Sections 3/8, 5/8 and 2/80 of the Punjab Prohibition of Cow Slaughter Act, accused Ikram was interrogated by him. PW-11 Inspector Sanjay Kumar mainly deposed that on 16.02.2014, he along with SI Allabux and Constable Dinesh, verified the facts from the villagers and found Nasru, Hakmuddin, Irshad, Sehju, Halima and Khursheed as innocent in this case and complainant Ikram was found as accused as he had murdered his daughter and filed false complaint against above-said persons, who were found innocent in his 22 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: investigation. PW-12 Inspector Allabux, Investigating Officer, deposed regarding investigation conducted by him in the present case. He also deposed regarding arrest of the accused, disclosure statement suffered by him and recovery of blood-stained knife as well as clothes. He further deposed that he recorded statements of witnesses under Section 161 Cr.P.C. and prepared report under Section 173 Cr.P.C. PW-13 Israil mainly deposed that he identified the dead body of deceased Saiba.
At the close of prosecution evidence, the accused-appellant was examined under Section 313 Cr.P.C. He was confronted with the evidence of the prosecution and he denied the correctness of the evidence and pleaded himself as innocent. He further pleaded that Lallu, husband of his father's sister had slaughtered some cows at their village. Beef was demanded by Sarpanch of their village for serving to his guests but that was denied by Lallu and an attack was launched by about 50 persons at his house because Lallu had run to his (accused) house when the attack was launched upon him by the members of group of Sarpanch somewhere outside their house. In that attack, his daughter was also killed and injuries were also caused to him. In defence, accused examined DW-1 Aziz, who mainly deposed that on 15.02.2014, at about 9.30 a.m., a quarrel occurred between accused Ikram with Nasru, Halima, Khursheed and their family members in village Manota. Khursheed was having lathi in his hands and Nasru was having knife. Nasru murdered Saiba with the help of knife. On 16.02.2014, police called him in the police station Punhana and joined him in the investigation and police obtained his signatures on some blank papers. He further deposed that police reached village Manota at about 9.45 a.m. and recovered dead body from the spot and took it to Government Hospital, Mandikhara, 23 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: for post-mortem examination. Accused Ikram was falsely implicated in this case. In cross-examination, this witness sated that Ikram is his relative (brother-in-law). He went to the police station Punhana once on 16.02.2014. Firstly, Ikram was the complainant in this case. He further deposed that he went to police station Punhana but police did not inquire about the matter from him.
The learned trial Court, after appreciation of the evidence, convicted and sentenced the accused-appellant as stated above.
Aggrieved from the above-said judgment of conviction and order of sentence, accused-convict has filed above appeal, whereas, murder reference has been filed to confirm death penalty.
At the time of arguments, learned counsel for the accused- convict Ikram mainly argued that accused has been falsely implicated in this case and the persons, named in the application/FIR, being influential persons, have not been challaned by the police. He further argued that as per prosecution version, police had enquired from 20-25 persons and then found the persons named in the application/FIR as innocent but none of those persons has been examined. He next contended that recoveries have been planted upon the accused-convict and investigation is defective. The Investigating Officer has shown the arrest of the accused on 20.03.2014 and has stated that he was already in custody in FIR No.47. Learned counsel for the appellant further argued that as per prosecution version, accused-convict has made extra judicial confession before one Aziz, but he has not been examined by the prosecution and extra judicial confession stated by PW-6 Head Constable Gajender Kumar is inadmissible in evidence. It is further argued by learned counsel for the appellant that FIR No.47 has been 24 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: registered later on in the evening whereas FIR No.48 was registered earlier, which creates reasonable doubt in the prosecution version. He next contended that there is motive to cause murder of daughter of accused- convict by the persons named in the application/FIR. He also contended that prosecution has failed to prove its case against the accused-convict beyond reasonable doubt.
On the other hand, learned State counsel argued that prosecution has duly proved its case by leading cogent evidence. The witnesses are reliable witnesses and there are no material contradictions or improvements in the statements of the PWs. He further argued that there is motive for the accused-convict to commit the murder of his daughter to falsely implicate the persons, who have got registered FIR on that very day against him and his father etc. Learned State counsel also contended that chain of circumstances is complete and are pointing towards the guilt of the accused-convict and none else. Learned State counsel argued that the death penalty has been rightly imposed upon accused-convict and therefore, the murder reference should be confirmed.
After hearing learned State counsel as well as learned counsel for the accused-convict and after going through the record, I find that in the present case, prosecution has duly proved its case by leading cogent evidence. No material contradictions or improvements have been pointed out by learned counsel for the accused-convict at the time of arguments. There is nothing in the evidence which may make the version of prosecution improbable. Present case relates to circumstantial evidence and in the case of circumstantial evidence, chain of circumstances should be complete and should point towards the guilt of the accused only and none else. In the 25 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: present case, blood-stained knife and blood-stained clothes of accused- convict have been got recovered by the accused-convict as per his disclosure statement. PWs have duly proved the recoveries as per Section 27 of the Evidence Act. As per FSL report, the knife, shirt and pant were stained with human blood. This is one stance in the chain of circumstances, which point towards the guilt of the accused-convict.
Secondly, in the FIR, which is registered on the basis of the application of the present accused-convict, it is written that weapon of offence in the hand of Nasru i.e. knife, either belongs to them (accused- convict) or to Nasru. It is also stated by the accused-convict in the application/FIR that Nasru gave him lathi blow on his right hand and gave a brick blow on finger of his left hand. As per FIR, Ikram, who is now accused, has suffered injuries with lathi on his right hand and also by brick blow on his finger but he did not get himself medico legally examined to prove these injuries, which means that he has not suffered any injury on his person and his version in the FIR qua receiving of injuries is false.
Further, I find that in the case of circumstantial evidence, motive is significant. In the present case, prosecution has duly proved the motive for registering the FIR by the accused against Khursheed etc., as earlier in the morning, Ikram along with others, slaughtered a cow in their house, which is clear from the FIR which was got registered by the present accused-convict. It is duly proved on the record and admitted fact that FIR No.47 was got registered against Ikram and his family members and as per evidence, police took father of Ikram along with him and others. As per prosecution version, to take revenge of FIR No.47, present accused-convict murdered his own daughter and got registered FIR No.48 against Khursheed 26 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: etc. i.e. complainant party of FIR No.47. The motive has been duly proved by the prosecution.
Further, I find that the present accused-convict has given one version in the FIR and another different version has been given in the statement under Section 313 Cr.P.C. There is nothing on the record or in the cross-examination of the witnesses, which may show that version given by the accused-convict is correct one. DW-1 Aziz has been examined but it is not the case of Ikram in the FIR that Aziz was present at that time in the house. Aziz or any near relative of Ikram has also not filed any application or representation to any higher officer/authorities regarding false implication of accused-convict. Even present accused Ikram has not filed any criminal complaint that Khursheed has committed the murder of his daughter. No relatives, who were present in the house had come to witness box to support the version of accused-convict given in the FIR or in the statement under Section 313 Cr.P.C. Giving separate version in the statement under Section 313 Cr.P.C., itself show that statement of accused-convict cannot be relied upon as version given in the FIR and version given in the statement under Section 313 Cr.P.C. are totally different, which also shows that version given by the accused-convict in the FIR is not supported and corroborated from any fact and is a false version, which is given to mislead the police. PW-9 Khursheed has been examined by the police to prove the version of prosecution. The version given by accused-convict in the FIR is also not believable. If 5-6 persons had come aggrieved from Ikram that he slaughtered a cow, why those persons would not cause any injury to Ikram and instead, would murder minor girl aged about 7 years. Even, version given in the statement under Section 313 Cr.P.C. is 27 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: improbable that 50 persons would attack the house of the convict and would not cause any injury to any other person and would not cause any damage to property and would only cause one injury i.e. on the neck of the minor girl, especially when as per version given in the statement under Section 313 Cr.P.C., the cow was slaughtered by one Lallu, husband of convict's father's sister. Admittedly, the murder has been committed on the first floor of the house of the present convict. The version given by accused-convict has been found false. These are special facts which are in the knowledge of Ikram as to how the murder took place. As per Section 106 of the Indian Evidence Act, burden is upon present convict Ikram to prove the fact regarding murder of his daughter because this fact is specially within his knowledge. The version given by the accused-convict Ikram, as already discussed, in the FIR is not supported and corroborated by any cogent evidence and has been found false by the police. This fact also goes against the accused-convict and completes the chain of circumstances, which point towards the guilt of the accused only and none else.
The arguments of learned counsel for the accused-
convict/appellant that recoveries have been planted or no action has been taken against the persons named in the application/FIR, are having no merits. It is for the prosecution to prove the case by producing the witnesses. The prosecution has duly proved the guilt of present accused-convict beyond reasonable doubt. It is not necessary that every person who was joined in the investigation, should be examined. The investigation of this case further supports the prosecution version. Even if, there is some defect in the investigation, it cannot be held as fatal to the prosecution case. The argument of learned counsel for the accused-convict that FIR No.47 has 28 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: been registered later on and FIR No.48 was registered earlier, is not supported and corroborated by any evidence. The copy of FIR No.47 has not been proved on the record. Similarly, it is in the evidence that Aziz produced accused Ikram, who was required in both the cases i.e. FIR No.47 and FIR No.48 and he was arrested on 20.03.2014. Therefore, on this ground also, there is nothing which may create doubt in the prosecution version.
From the perusal of the evidence on record, I find that there is nothing in the cross-examinations of the PWs, which may make their statements unreliable. PWs are reliable witnesses. The oral evidence has been corroborated by medical evidence, investigation of the case, recoveries of weapon and blood-stained clothes and FSL report.
In view of the above discussion, I find that the judgment of conviction dated 10.12.2015 passed by learned Sessions Judge, Mewat is correct, as per evidence and law and does not require any interference from this Court.
As regarding sentence, I find that the present case, in no way, can be held as rarest of the rare cases, though the present accused-convict has murdered his minor daughter aged 7 years to falsely implicate other persons. In the facts and circumstances of the present case, I find that this case does not fall under the category of rarest of rare cases. Therefore, the sentence imposed upon accused-convict Ikram is modified and he is sentenced to undergo imprisonment for life instead of death penalty and he is also directed to pay fine of `10,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of six months.
Therefore, murder reference No.1 of 2016 is declined and CRA 29 of 31 ::: Downloaded on - 11-03-2018 02:10:02 ::: No.D-1702-DB of 2015 stands dismissed with the modification in the sentence as stated above.
February 27, 2018 (INDERJIT SINGH)
Vgulati JUDGE
Whether speaking/reasoned Yes
Whether reportable No
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MRC No.1 of 2016 and
CRA-D-1702-DB of 2015
Ikram
versus
State of Haryana
Present: Mr. R.S. Rai, Senior Advocate with
Mr. Deepinder Brar, Advocate for the appellant
in CRA-D-1702-DB of 2015.
Mr. Vivek Saini, DAG, Haryana.
*****
Per. A.B. Chaudhari J.
Appeal is allowed. The judgment and order of conviction of appellant for offence of murder, is set aside. Appellant is acquitted of the charges levelled against him. Appellant be released forthwith, if not required in any other crime. Hence, Murder Reference Case is dismissed. Per. Inderjit Singh J.
Appeal is partly allowed. The judgment and order of conviction of the appellant for offence of murder is maintained. However, the order of sentence of death is set aside and modified and the appellant is sentenced to undergo imprisonment for life and to pay a fine of `10,000/- and in default rigorous imprisonment for six months.
In view of difference of opinion between us, Registry is directed to place the papers before Hon'ble the Chief Justice for obtaining necessary orders.
(A.B. CHAUDHARI) JUDGE (INDERJIT SINGH) JUDGE February 27, 2018 anju rani 31 of 31 ::: Downloaded on - 11-03-2018 02:10:02 :::