Allahabad High Court
Kabir Khan And Others vs State Of U.P. on 6 November, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.48 Criminal Appeal No.903 of 1990 1. Kabir Khan 2. Mangali Khan 3. Pattalley Khan @ Irshan Ahmad Khan 4. Jabir Khan (Dead) ----Appellants Vs State of Uttar Pradesh ---- Respondent For Appellants : Sri N I Jafri, Senior Counsel, assisted by Sri Surendra Kumar, Advocate. For Respondent/State : Sri Amit Sinha, AGA Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Pritinker Diwaker, J.
(6.11.2019) This appeal arises out of impugned judgment and order dated 26.4.1990 passed by Special Judge (Dacoity Affected Areas), Farrukhabad in Sessions Trial No.107 of 1987, convicting the appellants under Sections 302 and 201 of IPC and Section 14 of U P Dacoity Affected Areas Act, and sentencing them to undergo imprisonment for life; seven years rigorous imprisonment and seven years rigorous imprisonment respectively.
2. Case of the prosecution, in brief, is that on 20.5.1985 at about 9.00 pm, deceased Buddha Khan left his house after informing his family members that he is going to village Jahangirpur for watching musical and dance programme (HkkaMks dk rek'kk). It is said that when the deceased did not return, he was searched and then on 23.5.1985, a written report was lodged by (PW-1) Sharif Khan, cousin brother of the deceased based on which, offence under Section 364 of IPC was registered against unknown persons. Further case of the prosecution is that the dead body of the deceased was recovered on 27.5.1985 in the Well of one Autar Singh situate at village Rohilla. Initially, the same was identified by the villagers on the basis of his clothes and thereafter, the body was shown to the relatives of the deceased and it was identified to be that of Buddha Khan. According to prosecution, in the musical and dance programme, deceased was seen in the company of the accused persons and based on that, present appellants, deceased-appellant Jabir Khan, acquitted accused Munnu @ Aminoor and Puttu Khan were tried for the offence under Sections 302 and 201 of IPC read with Section 14 of Dacoity Affected Areas Act.
3. Inquest on the dead body of the deceased was conducted vide Ex. Ka.8 on 27.5.1985 and the body was sent for postmortem which was conducted on 28.5.1985 vide Ex. Ka.4 by (PW-4) Dr Manohar Singhal.
As per Autopsy Surgeon, following injuries were noticed on the body of the deceased:
"Anti-mortem injuries:
(1) Ligature mark 37 cm x 3 cm below the Thyroid Cartilage all around the neck. Horizontally placed. Groove Soft & black, Subcutaneous tissue underneath shows Ecchymosis. The platysma shows congestion.
(2) Contusion 11 cm x 5 cm over the front chest in the middle, underneath .... (sic) shows Ecchymosis.
(3) Contusion 12 cm x 6 cm over the Ankro- Medial aspect of left Thigh, underneath Ecchymosis present."
Cause of death of the deceased was due to asphyxia as a result of strangulation.
4. While framing charge, the trial judge has framed charge against all the accused persons under Sections 302 and 201 of IPC and Section 14 of Dacoity Affected Areas Act.
5. So as to hold accused persons guilty, prosecution has examined 13 witnesses. Statements of the accused persons were recorded under Section 313 of Cr PC in which, they pleaded their innocence and false implication.
6. By the impugned judgment and order, the trial Judge has acquitted accused Munnu @ Aminoor Khan and Pattu Khan, whereas remaining four accused persons were convicted and sentenced, as mentioned in paragraph no.1 of this judgment. Hence this appeal.
7. During pendency of this appeal, accused Jabir Khan has expired and, therefore, present appeal confines only in respect of accused-appellants Kabir Khan, Mangali Khan and Pattalley Khan @ Irshad Ahmad Khan.
8. Counsel for the appellants submits:-
(i) that there is no eyewitness account to the incident and the appellants have been convicted solely on the basis of circumstantial evidence.
(ii) that the nature of circumstantial evidence is not as such which can be made basis for convicting the appellants.
(iii) that the evidence of last seen collected by the prosecution is very weak and the same does not find any support from the other evidence.
(iv) that there was no motive for the appellants to commit the murder of the deceased.
(v) that no incriminating article has been seized from the possession of the appellants.
9. On the other hand, supporting the impugned judgment and order, it has been argued by learned State Counsel that the conviction of the appellants is in accordance with law and there is no infirmity in the same.
10. We have heard learned counsel for the parties and perused the record.
11. (PW-1) Sharif Khan, is a cousin brother of the deceased and the informant. He states that a missing report was lodged by him vide Ex. Ka.1. He further states that he came to know from other persons that the deceased was kidnapped.
12. (PW-2) Mohd. Halim Khan, is a witness of last seen. He states that about 4 years back in between 9:00-10:00 pm, when he was coming on his bicycle, he saw the deceased in the company of the accused persons and when he returned to his house, he came to know that the deceased has been kidnapped.
13. (PW-3) Dafedar, who has also been examined as a witness of last seen, states that in torch light he saw Mangali, Patalley, Jakir, Hamim, Haseem and other persons along with deceased.
In cross-examination, he has stated that till the dead body of the deceased was recovered, all the accused persons were in the village.
14. (PW-4) Dr Manohar Singhal, conducted postmortem on the body of the deceased.
15. (PW-5) Munnoo @ Aminoor, has been declared hostile.
16. (PW-6) Balak Ram, Village Chaukidar, has not stated anything against the accused persons.
17. (PW-7) Zumman Khan, Scribe of FIR, for the first time has stated in Court that accused persons took the deceased along with them.
18. (PW-8) Ram Kumar, recorded the chik FIR. (PW-9) Onkar Singh, is a Photographer. (PW-10) Ramakant Chaturvedi, is the second Investigating Officer. (PW-11) Virendra Singh Verma, prepared the inquest. (PW-12) G.S. Raghav, is the first Investigating Officer. (PW-13) P.S. Pandey, filed charge-sheet.
19. Close scrutiny of the evidence makes it clear that but for the evidence of 'last seen' by (PW-2) Mohd. Halim Khan and (PW-3) Dafedar, there is absolutely no other evidence against the appellants. Even (PW-2) Mohd. Halim Khan and (PW-3) Dafedar have casually stated that they saw the deceased along with the appellants. They have not made it clear as to on which date and at what time, they exactly saw the appellants along with deceased and according to them, other persons were also along with the appellants and the deceased.
20. True it is that conviction of accused can be made on the basis of last seen alone but for that, the evidence of last seen is required to be conclusive and clinching. Law in this respect is very clear.
In Kanhaiya Lal vs. State of Rajasthan1, the Apex Court held as under:
"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.
15. The theory of last seen - the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh vs. State of Rajasthan, (2010) 15 SCC 588."
In Ganpat Singh vs. State of Madhya Pradesh2, the Apex Court held as under:
10. Evidence that the accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. The settled formulation of law is as follows:
"The last-seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
21. Applying the above principles of law in the present case, it is apparent that there is no conclusive and clinching evidence pointing the guilty of accused persons alone. Moreover, accused persons remained in the village throughout even after the deceased was found missing and, if (PW-2) Mohd. Halim Khan and (PW-3) Dafedar had seen the accused persons in the company of the deceased, they ought to have disclosed this fact to the police authorities. There is no other supporting evidence connecting the accused persons in commission of murder of the deceased and, therefore, they deserve 'benefit of doubt'.
22. In this view of the matter, we are of the considered opinion that the trial Court has erred in law in convicting the accused persons. Accordingly, the appeal is allowed and the conviction and sentence imposed on the appellants are set aside and they are acquitted of the charges giving them 'benefit of doubt'.
23. The appellants are reported to be on bail and, therefore, no further order is required in their respect.
24. Let a copy of this order be sent to the concerned trial Court for compliance.
Dated:6.11.2019
RKK/Akhilesh
(Raj Beer Singh, J) (Pritinker Diwaker, J)