Rajasthan High Court - Jaipur
Sayeed Moeen And Ors. vs State Of Rajasthan on 11 July, 2006
Equivalent citations: RLW2006(4)RAJ3036
JUDGMENT Shiv Kumar Sharma, J.
1. Sayeed Moeen, the appellant herein, along with three co-accused, was put to trial before the learned Additional Sessions Judge (Fast Track) Ajmer, who vide judgment dated January 16, 2003 convicted and sentenced the appellant as under:
Under Section 302 I.P.C.
To suffer imprisonment for life and fine of Rs. 5,000/-, in default to further suffer simple imprisonment for six months.
Under Section 3/25 Arms Act:
To suffer imprisonment for three years and fine of Rs. 1,000/-, in default to further suffer simple imprisonment for one month.
The substantive sentences were ordered to run concurrently.
Co-accused Hussain Ujjaman was discharged and Sayeed Fareed and Aziz Rehman stood acquitted. Acquittal of co-accused has been assailed by the State of Rajasthan and complainant in appeal No. 1248/2003 and revision petition No. 559/2003 respectively.
2. As per the prosecution story Saiyad Riyaz Ali @ Pappu suddenly disappeared on September 24, 1999. His elder brother Hasan Mazhar Ali lodged missing report at Police Station Dargah Ajmer on September 25, 1999 at 6.15 PM. In the course of investigation a dead body was identified as of Saiyad Riyaz Ali. On the basis of evidence collected during investigation the 10 nabbed the accused persons and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Ajmer. Charges under Sections 302, 201, 120B I.P.C. and 3/25 Arms Act were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 26 witnesses. In the explanation under Section 313 Cr.P.C. the appellant claimed innocence. The witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above.
3. We have pondered over the submissions and with the assistance of learned Counsel carefully scanned the record.
4. Since there was no eye-witness of the occurrence the prosecution based its case on circumstantial evidence. It is well settled that case based on circumstantial evidence must satisfy three tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
5. Circumstantial evidence means the evidence afforded not by the direct testimony of an eye witness to fact to be proved, but by the bearing upon that fact or other and subsidiary facts which are relied upon as inconsistent with any result other than truth of the principal facts. Circumstantial evidence is not an evidence direct to the point in issue, e.g. the statement of a person that he saw another giving a fatal blow to the deceased, but evidence of various fact other than the fact in issue which are so associated with the fact in issue that taken together they form a chain of circumstances leading to an inference or presumption of the existence of the principal fact. The circumstantial evidence should be like spider's web leaving no exit for the accused to slip away. The various links in the chain, when taken in isolation, might not connect the accused with the commission of the crime but when taken together may unmistakably point out the guilt of the culprit.
6. Bearing these principles in mind we have to adjudge the cumulative effect of two circumstances that were found established by the learned trial Judge against appellant Sayeed Moeen. They are as under:
(i) Homicidal death.
(ii) Recovery of country made pistol at the instance of Sayeed Moeen.
Homicidal Death:
7. Death of Sayeed Riyaz Ali @ Pappu was undeniably homicidal in nature. As per post mortem report (Ex. P-28) as many as 20 antemortem injuries were found on the dead body. In the opinion of Dr. Nand Lai (PW-17), who conducted autopsy on the dead body, the cause of death was injuries to vital organs i.e. head, neck and lungs. Thus the prosecution is able to establish that death of deceased was homicidal.
Recovery of Pistol:
8. Regarding the circumstance of recovery of country made pistol at the instance of appellant Moeen. Devi Singh IO (Pw. 26) in his deposition stated that Moeen gave information under Section 27 of Evidence Act on September 29, 1999 regarding the country made pistol and used cartridge (Ex. P-47) and the same got recovered vide Ex. P-18 from the office near Dargah. Site plan (Ex.P-19) of the place of recovery was drawn. Motbir Sakhawat Ali (Pw. 11) supported the recovery, Devi Singh 10 further stated that the seized articles were sent to FSL on October 26, 1999 through Suraj Mal (Pw. 25) vide receipts (Ex.P-43 to P-45).
9. Learned Counsel for the appellant urged that the recovery of country made pistol from the appellant is concocted and fabricated as the appellant had not given any information and the place from where the pistol got recovered was not in exclusive possession of the appellant. He further urged that without prior sanction of District Magistrate under Section 39 of the Arms Act the appellant could not be charged and convicted under Section3/25 Arms Act. Learned Counsel also urged that the FSL report could not be read against the appellant since no question regarding the same was put to him under Section 313 Cr.P.C.
10. We have given our anxious consideration to the submission of learned counsel. FSL report in regard to one country made pistol, one cartridge case and one bullet was marked as Ex.P-50 on September 6, 2002 but in the order sheet dated September 6, 2002 it was not staled that the FSL report was taken on record. The order sheet dated September 6, 2002 reads thus:
6-9-02 S.P.P. Jh jkeLo:i mi- A vfHk;qDrx.k rhuksa J/c ls mi- k muds vf/koDrkx.k mi- lk{; vfHk;kstu esa xokg PW 26 nsohflag ds c;ku vkt iwjs gq, A SPP us lk{; vfHk;kstu lekIr dhA i=koyh okLrs c;ku eqyfteku fn 24-9-02 dks isk gks A It appears that neither the copy of FSL report (Ex. P-50) was handed over to the appellant nor it got exhibited in the presence of the appellant. Statement of appellant under Section 313 Cr.P.C. was recorded on September 24, 2002 but report Ex. P-50 was not put to appellant.
11. The Hon'ble Supreme Court in Kanhai Mishra v. State of Bihar (2001) SCC (Cri) 537 : RLW 2001 (2) SC 321, propounded that the circumstance which is not put to the accused under Section 313 Cr.P.C. cannot be used against him.
12. Division Bench of this Court in Dhula v. State of Rajasthan 1996 Cr.L.J. (Raj.) 771 held that without putting the FSL report to the accused in his statement Under Section 313 Cr.P.C. it could not have been read against the accused because it is the requirement of law that anything adverse to the accused, if relied upon, then the accused should be given an opportunity to explain that adverse circumstance. The trial court, therefore, committed an error in considering the FSL report against the accused without being put to him in his statement Under Section 313 Cr.P.C.
13. Having considered another submissions of learned Counsel about prior sanction of District Magistrate we notice that no sanction as mentioned by Section 39 of the Arms Act was accorded by the District Magistrate. Section 39 of the Arms Act provides thus:
39. Previous sanction of the District Magistrate necessary in certain cases - No prosecution shall be instituted against any person in respect of any offence under Section 3 without the previous sanction of the District Magistrate.
Since previous sanction of the District Magistrate was not sought prosecution of the appellant under Section 3/25 Arms Act was not legal and he could not be convicted for the said offence.
14. There is yet another weakness in the prosecution case. It could not established that the place from where the country made pistol was exclusively owned and possessed by the appellant. Devi Singh IO (Pw. 26) in his cross examination deposed thus:
;g ckr lgh gS fd eqyfte eksbZu ls tgka ls cjken fd;k x;k gS] ogka ih&18 esa crk;s x;s Lfky ij eksbZu ds vykok vU; mlds ifjtu Hkh jgrs gSA ftl dejs ls cjkenxh dh xbZ mlds rkyk yxk gqvk ugha Fkk] ij dqUnh yxh gqbZ Fkh----- eksbZu ls ftl LFkku ij cjkenxh dh xbZ og LFkku dk;kZy; eksbZu dk gh gks bl laca/k esa eSaus dksbZ nLrkost ughs fy;k FkkA Thus the fact of recovery cannot be regarded as conclusive proof that the appellant was in possession of the article so recovered.
15. Their Lordships of the Supreme Court in Trimbak v. State of M.P. indicated that when the Field from where the ornaments were recovered was an open one and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of the articles. The fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles.
16. Division Bench of this Court in Sunder Singh v. State of Rajasthan 1976 Cr.L.R. (Raj.) 322 held thus:
The recovery of blood stained kulhari from the Chhappar of the house of the accused in pursuance of the information given by the accused while he was in custody. This circumstance alone is not sufficient, in our opinion, to fasten the guilt on the shoulders of the accused appellant especially when the recovery was made after about 10 days and that too from a place which is accessible to all and sundry.
17. In Chandra Bhan v. State of Rajasthan 1979 Cr.L.r. (Raj.) 52 it was held as under:
So far as the evidence of recovery is concerned, less said, about it, is better. The direct evidence in this case has failed. The accused were arrested long after the incident and the articles were recovered somewhere near about the scene of occurrence in an open field. On such evidence, no court can base conviction against the accused.
18. Again the Division Bench of this Court in Mohan v. State of Rajasthan 1985 RCC 406 indicated that where a weapon from open place got recovered after more than a month of occurrence, no reliance can be placed on such recovery.
19. The recovery of pistol and cartridge in the instant case has been affected under suspicious circumstance from a place which was not in exclusive possession of the appellant Moeen. This only shows that entire recovery of pistol and cartridge at the instance of appellant is a myth.
Criminal Appeal and Revision Respectively Preferred by State and Complainant:
20. We have heard learned Public Prosecutor and learned Counsel for the complainant and to appreciate their contention scanned the record. It appears that on the basis of disclosure statements of accused Fareed and Aziz Rehman blood stained pant and knife got recovered. The learned trial Court however did not find the recovery cogent and convincing and acquit the accused. Learned Counsel for the complainant and learned PP took us to the relevant memos and statements of witnesses and persuaded us to take a different view but we find ourselves unable to agree with the submissions. Since the blood group of accused Fareed had not been determined, the prosecution in our opinion has not been able to establish that the blood found on his pant was not the blood of accused Fareed himself. Even otherwise this solitary evidence is not sufficient to hold that the accused Fareed was the perpetrator of the crime. Similarly the recovery of knife at the instance of accused Aziz Rehman was affected from the house vide (Ex. P-22) and Devi Singh IO (Pw. 26) in his statement could not establish that the place from where recovery got affected was exclusively owned and possessed by Aziz Rehman and not accessible to all and sundry. It is well settled that finding of acquittal recorded by the trial court cannot be interfered with only on the ground of possibility of different view. (Vide State of Rajasthan v. Ram Niwas 2002 WLC (SC) Criminal 396.
21. For these reasons, we dispose the instant matters in the following terms:
(i) We allow the appeal of Sayeed Moeen and set aside his conviction and sentence under Section 302 I.P.C. and 3/25 of Arms Act and acquit him of the said charges. Appellant Sayeed Moeen, who is in jail shall be set at liberty forthwith, if not required to be detained in any other case.
(ii) We find no merit in DB Criminal Appeal No. 1248/2003 and DB Criminal Revision Petition No. 559/2003 and the same accordingly stand dismissed.