Rajasthan High Court - Jaipur
Kasim Beg @ Anr. vs State Of Rajasthan on 5 January, 2006
Equivalent citations: RLW2006(4)RAJ2837, 2006(2)WLC1
Author: R.S. Chauhan
Bench: R.S. Chauhan
JUDGMENT R.S. Chauhan, J.
1. The alleged murder of Shakir @ Guddu, in the dead of the night, the discovery of his dead body in a Nala (culvert) the next morning, the testimony of a chance witness and splattering of circumstantial evidence led to the conviction of the appellants, Kasim Beg, (appellant No. 1, for short), Nafeesa Bano, (appellant No. 2, for short) and Ballu Khan (appellant No. 3, for short) for offences under Sections 302, 201 IPC. Vide judgment dated 2.8.2004, the Additional Sessions Judge (Fast Track) No. 2, Kola, convicted the appellants for offence under Section 302 IPC and sentenced them to undergo Life Imprisonment and to pay a fine of Rs. 2,000/- and in default thereof, to further undergo two months' S.I. He also convicted them for offence under Section 201 IPC and sentenced them to five years R.I. and to pay a fine of Rs. 1000/- and in default thereof, to undergo one month's S.I. Hence, these appeals before us. As both the appeals arise out of the same impugned judgment, the appeal are being decided by this common judgment.
2. The brief facts of the case are that on 23.6.2003, Shabir Ali (PW. 1) submitted a written report (Ex. P. 1) to the police wherein he claimed that "on the night of 22.6.2003, his younger brother Shakir @ Guddu left his house, but never came back. In the morning, he was informed that there is a dead body, which is lying in the culvert. When he went there, he discovered that it was his brother's body. There were certain injury marks on the head and the ear of the dead body. Someone in the crowed told him that a gunny bag, which was tied with a rope, covered the head. The body was lying half in water and half outside. People had pulled the body out of the water and had untied the gunny bag. The gunny bag and the rope were lying near the body. He further claimed that somebody had killed his brother in the night. His maternal uncle, Abdul Naeem told him that around 10.30 at night, he had seen Shakir going towards Kasim's house. He further claimed that he saw a trail of blood droplets from the place where the body was lying to Kasim's house, which is situated in the culvert itself, and ending there. He suspected that someone had killed his brother where the trial of blood droplets ended. He further suspected that the body had been dragged and dumped at the place where it was discovered."
3. On the basis of the written report, a formal FIR (Ex. P. 11) was chalked out for offences under Sections 302, 201 IPC. Subsequently, during the course of investigation, the appellants were arrested. A charge sheet for offence under Sections 302, 201 and 34 IPC was submitted against them. In order to support their case, the Prosecution examined 13 witnesses and submitted 36 documents. Although the statements of the accused appellants were recorded under Section 313 Cr.P.C., but no witness was produced by the defence. But, the defence did produce seven documents to fortify their case. After going through the oral and documentary evidence, the learned Additional Sessions Judge convicted the appellants as aforementioned.
4. The Prosecution story, as unfolded during the trial, is that Shakir, the deceased, had an illicit relationship with Nafeesa, Kasim wife. Meanwhile, Ballu, appellant No. 3, also had an illicit relationship with Nafeesa, appellant No. 2. When Kasim and Ballu discovered Shakir's relationship with her, the three of them-the appellants, decided to kill him. According to PW. 2 Badri Bai, the appellants Kasim and Nafeesa, along with their children, a son and a daughter, and Ballu came to her house between 11.00 to 12.00 O'clock at night to watch a firm on T.V. After about half an hour or so, Kasim and Ballu left her house. Nafeesa and her children stayed at Badri house. When she asked Nafeesa, "who was the man with Kasim?" She was told that it is Ballu. She further claimed that both Nafeesa and she went to sleep. Around 5.00 O'clock when she woke up, she found neither Nafeesa, nor her son at her house. Only Nafeesa's daughter was sleeping in her house. Around 7.00 O'clock in the morning Kasim came to her house and took his daughter away. According to PW. 3 Om Prakash, who is Badri Bai's brother, Kasim, Nafeesa and Ballu came to their house around 12.00 O'clock in the night to watch a movie. According to him, Nafeesa stayed throughout the night at Badri Bai's house. It is only around 5.00 O'clock that Kasim and Ballu took Nafeesa and her son away. He further states that Nafeesa was wearing a Salwar Kamiz when she came in the night, but there were no bloodstains on it.
5. On the other hand, according to PW. 6, Shamim Bano, the alleged eyewitness, when she was returning around 10.30 to 11.00 o'clock after having her meals at Janglee Shan Baba, she saw Nafeesa standing outside her house. She further states that when Nafeesa saw her, she went inside her house. She further states that Nafeesa did not close the door and she saw Ballu hitting Shakir with a Saria (iron rod) (iron rod) once on the face and once on the forehead. She also saw Nafeesa striking Shakir with a knife on his ear. She further claims that when Shakir shouted, Kasim put his hand on Shakir's mouth. However, she did not tell any of her family members about the alleged incident. She claims that the next morning, when the dead body was discovered, she told Dheeraj Verma, probably a Station House Officer at Kishorepura Police Station, that she had seen the murder on the previous night. However, the prosecution did not examine Dheeraj Verma as Prosecution witness. The Prosecution further claimed that upon information given by Kasim, a blood stained Saria (iron rod) was recovered, upon information given by Ballu, a blood stained Saria (iron rod) was also recovered and upon information given by Nafeesa, a blood knife and her blood soaked Salwar Kamiz were recovered. The Prosecution further alleged that the place where the dead body was discovered, there was a trail of blood droplets from that site to Kasim's house. PW. 13, Akhilesh Kumar, the investigating Officer, further claimed that when he visited Kasim's house, he saw red colored water in the drain coming out of the house. But, the said mixture of water and of alleged blood was neither collected by the police, nor sent for analysis to the FSL.
6. In order to convict the appellants, the trial Court had relied upon the testimony of PW. 6 Shamim Bano as she is the sole eyewitness of the alleged incident. It has also relied on the testimony of PW. 2 Badri Bai, PW. 3 Om Prakash, PW. 7 Dr. Govind Gupta and PW. 13 Akhilesh Kumar. It has also relied on the circumstantial evidence of the recoveries at the information of the appellants, the trail of blood and the possible motive of illicit affair between the deceased and Nafeesa for the alleged murder. On the basis of direct and circumstantial evidence, it has convicted the appellants.
7. Mr. Amarjeet Singh Narang, the learned Counsel for the appellant, has argued that initially the Prosecution case rested solely on circumstantial evidence. However, in order to strengthen its case, the Prosecution introduced Shamim Bano, PW. 6, as an eyewitness. She is not only a chance witness, but is also an unreliable one. The Prosecution case rests on the testimony of the sole eyewitness. But, since she is not a witness of sterling worth, the conviction cannot be based on her testimony. He has further argued that the Prosecution evidence is self-contradictory. On the one hand, Shamim Bano claims that she has witnessed the murder committed by the three appellants, but on the other hand, PW. 3 Om Prakash claims that Nafeesa was at their house from 11 o'clock in the night to 5 clock in the morning. He has further contended that in case Shamim Bano's testimony is discarded, then only scattered circumstantial evidence exist, which do not point unerringly to the appellants' guilt. Hence, they cannot be convicted on the basis of the circumstantial evidence. Lastly, he has argued that the Prosecution case has too many loose ends; therefore, the benefit of doubt should be given to the appellants. And they should be acquitted. Mr. Unus Khan, learned Counsel for Kasim and Nafeesa has echoed Mr. Narang's arguments. Therefore, they need not be repeated.
8. On the other hand, Mr. M.L. Goyal, the learned Public Prosecutor has argued that Shamim Bano, PW. 6, is a reliable witness. And the conviction can be based on the testimony of a sole eyewitness. Secondly, a strong motive for getting rid of Shakir exists in the minds of Kasim and Ballu as the first is married to Nafeesa and the second has an illicit affair with her. Since Shakir also had an illicit affair with Nafeesa, therefore, Shakir had to be eliminated. Thirdly, that the recoveries made on the basis of the information given by the appellants, the FSL Report, the post-mortem report and the medical evidence, the trail of blood from the culvert to Kasim's house all unerringly point to the appellants guilt. Therefore, he has supported the impugned judgment.
9. We have heard the learned Counsels for the parties and have examined the record before us.
10. While deciding a criminal case, one cannot forget that the burden of proving the guilt of the accused lies squarely on the Prosecution. The distance between "may be true" and "must be true" is a long distance, which the Prosecution must cover with cogent, reliable and convincing evidence, presumptions, unless warranted by law, cannot buttress the Prosecution case. And suspicions, no matter how strong, cannot take the place of prove. These settled principles of criminal jurisprudence should guide the judicious mind while deciding a criminal case. The trial Court has ignored some of these cardinal principles.
11. Shamim Bano (PW. 6) is the star witness of the prosecution. Yet, her entry into the case is delayed and her stand before the court is feeble. She claims that while she was returning back to her house, she saw Nafeesa standing outside of her house. When Nafeesa saw her, she went inside her house. But, Nafeesa did not close the door. She leaves the door quite open for the eyewitness to see the alleged assault on the deceased. Shamim Bano claims that she saw Ballu hitting the deceased twice with a Saria (iron rod), she saw Nafeesa striking the deceased with a knife and she saw Kasim capping the deceased's mouth with his hands. Despite seeing such a ghastly scene, she does not shout. But, she quietly walks away to her house. In her cross- examination she admits that even after arriving at her own house, she did not bother to tell her husband or the family members about the alleged incident. She claims that on the next day she told Dheeraj Verma, the SHO of Police Station Kishorepura. However, the prosecution never produced Dheeraj Verma as a witness. Surprisingly, Shamim Bano's statement is recorded four days later on 27.6.2003. In her statement to the police (Ex. D. 3), she claimed that she had seen the incident at 12.30 AM, yet in her testimony she changes her stand and claims that she had witnessed the incident at 10.30 at night. When she is confronted with this contradiction in her cross-examination, she merely states that she did not tell the police that the incident occurred at 12.30 at night. But according to PW. 13, Akhilesh Kumar, the I.O., he had recorded her statement as given by her. However, considering the fact that PW. 2 Badri Bai and PW. 3 Om Prakash stated in their testimony before the court that by 11.00 O'clock in the night, the appellants were at the Badri Bai's house, it was essential for PW. 6 Shamim Bano (who was certainly examined after the testimony of PW. 2 and PW. 3) to change her stand with regard to the time and to prepone the incident from 12:30 AM to between 10.30 to 11.00 P.M. Therefore, she custom tailors her testimony to the needs of the prosecution. The change in the timing, casts a serious doubt about the veracity of her testimony.
12. Moreover, in her examination in chief, she claims that she told about the incident to Dheeraj Verma. Yet, in her cross- examination she admits that she neither remembers the place where she had told Dheeraj Verma, nor the time when she had informed Dheeraj Verma about the incident. In case she had, in fact, informed Dheeraj Verma, the Prosecution would have produced him as a witness. His conspicuous absence from the witness box damages the prosecution case. Moreover, PW. 13, Akhilesh Kumar, the Investigating Officer, clearly states in his cross- examination as under:
I do not know Shamim Bano. It is correct that during investigations I obtained Shamim Bano's statement Under Section 161 Cr.P.C. I can tell on seeing the case diary on which day they were taken. It is correct that I took the statement on 27/6/03. Before 27/6/03, Shamim Bano did not meet me. The suggestion is wrong that she may have met me on 23/6/03. It is wrong that on 23/6 Shamim Bano may have told me through Sub Inspector Dheeraj Verma that she was an eyewitness of the incident. It is correct that on 25/6/03 at the time of recovery of Saria (iron rod) vide discovery of Saria (iron rod) vide discovery memo Ex. P. 12, Shamim Bano was present and she signed on Ex.P.12.
Therefore, neither Dheeraj Verma, nor Shamim Bano tells the Investigating Officer that she was an eyewitness to the alleged incident. Even though Shamim Bano is present before the Investigating Officer on 25.6.03 when the Saria (iron rod) is discovered, even then she maintains a studied silence. She does not tell Akhilesh Kumar, the IO about her being an eye-witness. The Prosecution does not offer any explanation as to how the Investigating Officer came to know that Shamim Bano was an eye- witness. The Prosecution also does not explain the delay of four days in recording her statement under Section 161 Cr.P.C. Her silence for four days creates a doubt about the veracity of her testimony and about her being a true eye-witness.
13. The learned trial Court has certainly mis-appreciated the evidence with regard to her telling Dheeraj Verma about the incidence. Despite the fact that Dheeraj Verma has not been examined as a witness, the learned trial Court still believes Shamim Bano's testimony that she told him about the incidence. The learned trial Court concludes that since she told Dheeraj Verma about the incident, even if there is a gap of four days, the fault does not lie with her, but lies with the Investigating Officer, PW-13, Akhilesh Kumar. Unless Dheeraj Verma corroborates her testimony, her statement cannot be accepted as a gospel truth, especially in the light of Akhilesh Kumar's testimony. Dheeraj Verma, being a police officer, was readily available to the prosecution. Yet, the prosecution chose not to bring him to the witness box. Perhaps he would not have supported the prosecution case and would have have revealed to the Court that Shamim Bano never informed him that she is an eye-witness of the incident. The withholding of Dheeraj Verma as a witness should be interpreted adversely and against the prosecution. Therefore, her inordinate silence weakens her trustworthiness.
14. The learned Public Prosecutor has argued that Shamim Bano's testimony is corroborated by the medical evidence and by the testimony of Dr. Govind Gupta, P.W.7. Considering the fact that the Post-Mortem was performed on 23.6.2003 and Shamim Bano's statement under Section 161 Cr.P.C. were recorded on 27.6.2003, it is not surprising that her statement echoes the Post-Mortem Report. Moreover, since she has changed her stand about the time of the occurrence, in order to tailor it to the requirement of the Prosecution, her testimony would follow the contours of the Prosecution case. But as she is not a witness of sterling worth, the conviction cannot be based on her testimony.
15. Allegedly the murder took place around 10.30 p.m. in June. According to Shamim Bano, there are other houses right next to Kasim's house. In the summer month, one would expect people to be outside their house. Since the locality is that of poor, one would also expect people to sit or sleep outside their house during the summer months. According to Shamim Bano, the deceased not only shouted for help, but also asked whether the assailants were planning to kill him. Curiously, but for Shamim Bano, no one else in the locality has heard his pleas for being rescued. The deceased is allegedly assaulted with Saria (iron rod) and knife, yet no one else has heard his shouts. This aspect of the prosecution case weakens the stand of the prosecution that deceased was killed in Kasim's house at 10.30 p.m.
16. Even the trail of blood from the place where the dead body was discovered to Kasim's house, or the statement of the I.O. that he saw red colored water coming out of Kasim's house does not support the prosecution case. For, there is no evidence that the police picked up blood droplets or that the red colored water was collected by the police. Furthermore, the blood soaked soil seized from Kasim's house, does not reveal the blood group of the deceased according to the FSL report. Therefore, the alleged trail of blood and the alleged red colored water does not point of the guilt of the appellants,
17. The learned trial Court has relied heavily on the discovery of the knife (Ex.P/9) and the discovery of the blood soaked Salwar Kamiz (Ex.P/10) at the instance of Nafeesa. Interestingly, the recovery witnesses of this recovery are Abdul Naeem, the maternal uncle of the deceased and the complainant Shabtr Ali, PW.1. As they are related to the deceased, therefore, they certainly do not qualify as independent witness of the locality. It is, indeed, trite to state that law requires that two respectable member of the locality should be associated with the recovery. Moreover, It is essential that the witnesses should be independent and not interest one. The involvement of the complainant and of a close relative of the deceased creates a doubt about the veracity of the recovery. Of course, Shamim Bano also claims to be a witness of the recovery, but in her cross- examination she admits that she did not enter into the house where the knife was recovered, but was standing outside the 'Tappri' (hut). Therefore, she does not support the recovery. As far as the blood soaked Salwar Kamiz are concerned, according to the FSL Report, it contained blood group-A, which allegedly is the blood group of the deceased. But, the prosecution has not eliminated the possibility that the said blood group could also belong to Nafeesa herself. In order to pin point the criminal liability, it was essential for the prosecution to prove that the blood group-A does not belong to the accused Nafeesa, but belongs only to the deceased Shakir. Until and unless this possibility is eliminated, the criminal liability cannot be hoisted on Nafeesa. The Salwar Kamiz has also been recovered before the complainant and the uncle of the deceased. According to Ex.P/10, the yellow colored Kameez had bloodstains in two places at the back. The Salwar also had few blood stains. Since women are known to bleed, it was imperative for the prosecution to eliminate the possibility that bloodstains on the Salwar Kameez were not caused by Nafeesa's blood. Since the prosecution has not eliminated this possibility, the recovery of the blood stained Salwar Kameez cannot be held to connect Nafeesa to the alleged crime.
18. According to PW.2 Smt. Badri Bai and PW.3 Om Prakash, Kasim, Nafeesa and Ballu came to their house at 1.00 O' clock. Moreover, according to Om Prakash, Nafeesa stayed at Badri Bai's house till 5 O'clock in the morning. Therefore, Nafeesa could not have been involved in the alleged murder, which look place initially according to the prosecution at 12.30 at night. Furthermore, if Nafeesa was, indeed, having the illicit affair with Shakir, the deceased and Ballu, the appellant No. 3 and was married to Kasim, appellant No. 1, there is no reason why she would want to get rid of the deceased. Considering the testimony of PW.2 and PW.3 and the lack of motive for Nafeesa, the statement of Shamim Bano that she saw Nafeesa strike the deceased with a knife becomes highly doubtful.
19. According to the Prosecution the only role assigned to Kasim is that he capped Shakir's mouth when he shouted for help. According to Shamim Bano only Ballu had struck the deceased with a Saria (iron rod) and not Kasim. Yet, according to the Prosecution, a Saria has been recovered at Kasim's instance. In case Kasim never used Saria to assault the deceased, it is surprising that a Saria (iron rod) has been recovered upon his information. In fact, in its zeal to strengthen the case, the investigating agency has recovered too many iron rods; one from Kasim (Ex.P/14), one from Ballu (Ex.P/12) and according to P.W.9, Abdul Naeern, a saria was also produced by Nafeesa when the knife and salwar kameez were recovered on Nafeesa's instance. However, there are only two recovery memos of saria recovered from Kasim and Ballu. There is no recovery memo of saria recovered from Nafeesa, although Abdul Naeem repeatedly claims that it was recovered from Nafeesa as well. Too many iron rods have spoilt the prosecution case. In its zeal to connect Kasim to the alleged crime, the investigating agency seems to have recovered the Saria (iron rod) upon his information. According to the FSL Report (Ex.P/34) this Saria has blood group A-the blood group of the deceased. The recovery of the Saria and its having the blood group of the deceased, especially when there is no allegation of Kasim having used the Saria to assault the deceased, clearly raises doubts about the bona fide of the Investigating Agency. Furthermore, P.W.9, Abdul Naeem and P.W. 13, Akhilesh Kumar admit that the Saria (iron rod) was recovered from an open place. Hence, the recovery loses its significance. But, for the recovery of the Saria (iron rod) and for the statement of Shamim Bano, there is nothing to connect Kasim to the alleged murder. However, we do not find Shamim Bano as witness of sterling worth. Even the recovery is doubtful. Thus, the prosecution has failed to prove its case against the appellant Kasim.
20. Similar is the case with Ballu, but for Shamim Bano's testimony-an unreliable testimony and the recovery of Saria (iron rod) at his instance there is nothing to connect Ballu with the alleged crime. According to the FSL Report (Ex.P/34) no blood was detected on this saria. Hence, the recovery of the Saria at Ballu's instance does not connect him to the crime. Merely because Ballu allegedly had an illicit relationship with Nafeesa, and is known to Kasim, merely because he went to Badri Bai's house along with Kasim and Nafeesa would not lead one to conclude that he is involved in the alleged crime. Suspicion, no matter how strong, cannot supplant proof. Hence, the prosecution has failed to prove its case against Ballu also.
21. In conclusion, the direct evidence of the sole eye-witness is not credit-worthy. The circumstantial evidence of recoveries, FSL Report, trail of blood do not unerringly point to the appellants guilt. In the result, the appeals are accepted. The impugned judgment dated 2.8.2004 is quashed and set aside. The appellants are directed to be released forthwith, in case they are not wanted for any other offence.