Uttarakhand High Court
Shoab And Another ................ ... vs State Of Uttarakhand on 22 October, 2018
Author: Lok Pal Singh
Bench: V. K. Bist, Lok Pal Singh
IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL
Criminal Appeal No. 247 of 2010
Shoab and another ................ Appellants
versus
State of Uttarakhand ................ Respondent
Ms. Pushpa Joshi, Senior Advocate assisted by Mr. Mohd. Safdar and Ms.
Chetna Latwal, Advocates for the appellants.
Mr. Amit Bhatt, Deputy Advocate General for the State.
with
Criminal Appeal No. 215 of 2010
Jeeshan ................ Appellant
versus
State of Uttarakhand ................ Respondent
Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Hemant Mehra,
Advocate for the appellant.
Mr. Amit Bhatt, Deputy Advocate General for the State.
Coram : Hon'ble V. K. Bist, J.
Hon'ble Lok Pal Singh, J.
Hon'ble V.K. Bist, J.
Both the appeals have arisen out of the same judgment and order dated 30.07.2010, passed by learned Addl. Sessions Judge / I F.T.C., Roorkee, Haridwar, in S.T. No. 370 of 2009, whereby all the appellants have been convicted under Sec. 302 read with Sec. 34 of IPC, Sec. 201 read with Sec. 34 of IPC, Sec. 436 IPC, Sec. 392 of IPC, Sec. 411 of IPC, and Sec. 427 of IPC. Each one of them has been sentenced to imprisonment for life under Section 2 302/34 of IPC; five years rigorous imprisonment under Section 201/34 of IPC; seven years rigorous imprisonment under Sections 436 and 392 of IPC; three years rigorous imprisonment under Section 411 of IPC and rigorous imprisonment for a period of one year under Section 427 of IPC. All the sentences were directed to run concurrently. These two appeals are clubbed together and are being decided by a common judgment.
2) Prosecution story, in brief, is that complainant Riyasat Ali lodged a complaint with P.S. Kotwali Gangnahar, Roorkee, stating therein that he received a phone call from his younger brother Rashid on 18 / 19.08.2009, at 04:00 A.M., that his sister Samarjahan and niece Sazia, who used to live in Mohalla Teliwala of village Padli Gurjar were murdered and some unknown miscreants have set the house on fire. The dead bodies of the two were lying in charred condition in different rooms and the entire household goods, including the jewellery, was reduced to ashes.
3) On the basis of said complaint, case crime no. 228 of 2009, under Sections 302, 201, 427, 436, 392, 411 of IPC was registered at P.S. Kotwali Gangnahar on 19.08.2009, at 11:00 A.M., against unknown persons. The investigation of the case commenced. The Investigating Officer sent the dead bodies for postmortem, took evidence of the witnesses, inspected the place of incident and prepared site plan.
34) Dr. Ajay Mohan Agarwal (PW6) conducted postmortem examination on the dead body of Samarjahan on 19.08.2009, at 03:20 P.M., and prepared postmortem report (Ext. A-2). The Medical Officer found following postmortem injuries on the dead body at the time of autopsy:-
Whole of the body charred, except left leg and left forearm, bones of both thighs, pelvis, neck exposed. Right leg bones exposed and foot and ankle missing. No vesicles, line of redness found on less burned areas (left leg and forearm).
On internal examination, both frontal bones were found fractured. According to the Medical Officer the cause of death of Samarjahan was coma due to ante mortem head injury. The burn injuries are post mortem.
5) The same Medical Officer conducted autopsy on the dead body of Sazia on 19.08.2009, at about 04:15 P.M. and prepared the postmortem report (Ext. A-3). The Medical Officer has recorded in the postmortem report that mouth is found gagged with a cloth which is tightly clinched between teeth, external part of cloth is partially burned while internal part is wet and intact. He found following postmortem injuries on the body of the deceased:
Whole of the body is deeply burnt and charred, thoracic and abdominal courtis are open, loops of intestines, lungs and heart are burnt and baked. Right foot is missing, right leg bone is burned and exposed.4
In the opinion of the Medical Officer, who conducted the autopsy, the probable cause of death of Sazia was asphyxia due to ante mortem gagging. The burns are post mortem.
6) The names of accused-appellants came into light on the statements and applications of witnesses Ahsan and Mohd. Avesh on 19.08.2009.
Accused-appellants Shoab and Shahnawaz were arrested on 20.08.2009 and apparels worn at the time of incident, mobile of the deceased and some sleeping pills were recovered on their pointing underneath a tree opposite to canal from a polythene bag. Looted silver ornaments of the sister of complainant were recovered on the pointing of accused-appellant Jeeshan from a different place after his arrest on 27.08.2009. Recovery memos were prepared on the spot. Site plans of the place of incident and place of recovery (Ext. A-10, Ext. A- 14 and Ext. A-15) were prepared and after completion of investigation, the Investigation officer submitted charge sheet (Ext. A-16) against accused- appellants Shoab and Shahnawaz under Sections 302, 201, 427, 436, 392 of IPC, and the one under Sections 302, 201, 427, 436, 392 and 411 of IPC against accused-appellant Jeeshan.
7) The concerned Magistrate, on receipt of charge sheet and after giving necessary copies to the accused persons, committed the case to the court of sessions for trial. After hearing the parties on charge, learned Sessions Judge, Haridwar framed charge against the three accused-appellants relating to offences punishable under Sec. 302 read 5 with Sec. 34 of IPC, Sec. 201 read with Sec. 34 of IPC, Sec. 436 of IPC, Sec. 427 of IPC, Sec. 392 of IPC and Section 411 of IPC. All the accused pleaded not guilty and claimed to be tried.
8) On this, prosecution examined PW1 Riyasat Ali (complainant); PW2 Aslam, PW3 Ahsan, PW4 Mohd. Avesh, PW5 Shahzad, PW6 Dr. Ajay Mohan Agarwal; PW7 Rajeev Rauthan, PW8 S.I. Sachidanand and PW9 S.I. Neerja Yadav. Accused persons were offered as to whether they wish to adduce evidence in defence. In response, the accused persons led defence evidence through DW1 Constable Chandra Mohan and DW2 Naseem Ahmad. The oral and documentary evidence were put to the accused-appellants under Section 313 of the Cr.P.C., to which they alleged that they have been falsely implicated in the crime. After hearing the parties, learned Addl. Sessions Judge / I F.T.C., Roorkee, District Haridwar found all the accused- appellants guilty of the charge of offences punishable under Sections 302/34, 201/34, 436, 392, 411, 427 IPC and each one of them was convicted and sentenced to imprisonment for life under Section 302/34 of IPC; five years rigorous imprisonment under Section 201/34 of IPC; seven years rigorous imprisonment under Sections 436 and 392 of IPC; three years rigorous imprisonment under Section 411 of IPC and rigorous imprisonment for a period of one year under Section 427 of IPC. Feeling aggrieved against the same, aforementioned criminal appeals have been preferred.
69) We heard learned counsel for the parties and perused the entire evidence on record.
10) PW1 Riyasat Ali is the complainant of the case. PW1 stated in his examination-in-chief that he received a phone call from his brother Rashid on 18 / 19.08.2009, at 04:00 A.M. that someone has set the house of his sister Samarjahan on fire, who used to live in Teliwala, as a result of which his sister Samarjahan and niece Sazia died due to burning. The entire household goods are also reduced to ashes. PW1 got scribed the complaint through Iqbal, r/o Padli Gujjar and submitted the same in P.S. Kotwali Gangnahar. He also appended his signature on the complaint. The charred dead bodies of his sister and niece were found lying in different rooms. PW1 further stated that as his niece Sazia was going to be married, all the articles, including clothes, furniture and jewellery were kept inside the house. The miscreants took away the jewellery with them. Police doused the fire and prepared the panchayatnama of the dead bodies. PW1 appended his signatures over the same. According to PW1, police recovered a bloodstained grinding stone from the verandah of the house and a bloodstained chunni from the cot in his presence. PW1 also stated that after the burial took place, Avesh (PW4) and Ahsan (PW3), who are residents of village Teliwala, told him that when they were passing through the house of Samarjahan, they saw Shoab, Jeeshan and Shahnawaz coming out of the house of Samarjahan. PW1 took these witnesses to P.S. Gangnahar and submitted an application 7 (paper no. 15A) in this regard. PW1 stated that after the arrest of Jeeshan, police got recovered the jewellery, viz., bracelet (kangan), anklets, necklace and tikka etc. and worn apparels of Jeeshan from a condemned house from its verandah on his pointing out. PW1, who was present at the place of recovery, recognized the jewellery that it is the same jewellery which he had purchased for the marriage of his niece. PW1 was also the witness of preparation of recovery memos.
11) PW1 was cross-examined at length. In his cross-examination, PW1 stated that his younger sister Samarjahan got married to Irfan. Irfan died 17-18 years ago. Samarjahan inherited the property of Irfan. She constructed a house in village Teliwala. The house of Samarjahan is at a distance of about 400-500 meters from the house of PW1's father. PW1 reached the place of occurrence within 20-25 minutes after receiving the telephone call. Police was already there at the place of occurrence. PW1 deposed that he is illiterate and only knows to append his signatures. PW1 denied the fact that police took his signatures on blank papers. PW1 also denied the fact that in order to grab the property of Samarjahan, he connived with witness Ahsan and falsely implicated accused Shahnawaz in the crime. PW1 stated that he had no previous or present enmity with Shahnawaz.
12) PW1, in his cross-examination, further deposed that earlier it appeared that entire household goods and the jewellery were gutted in 8 fire, but when the jewellery was recovered on the pointing of accused Jeeshan, he realized that the jewellery was of his sister. PW1 denied the fact that no recovery of apparels and jewellery was made on the pointing of Jeeshan and the said recovery was a false recovery. PW1 also denied the fact that the accused persons were falsely implicated in the crime by concocting a false story.
13) PW2 Aslam stated that on the day of incident at 04:00 A.M. he was returning to his house, as usual. PW2 noticed smoke coming out of the roof of the house of Samarjahan. He raised an alarm. On entering the house, he found smoke everywhere. Dead bodies of Samarjahan and Sazia were charred. The entire household goods were also gutted in fire. It appears that someone has set them on fire after committing the murder. In his cross-examination PW2 deposed that his house is opposite to the house of Samarjahan. He is acquainted with Ahsan and Avesh. They are also the residents of the same village. PW2, in his cross- examination, has denied the fact that he has not seen smoke coming out of the house. He also denied the fact that he is adducing false evidence being sympathetic to Samarjahan as she was his neighbour.
14) PW3 Ahsan, who is also a resident of village Teliwala, stated on oath that he is acquainted with accused Shoab, Jeeshan and Shahnawaz. PW3 further stated that on the fateful day at 07:00 A.M. his tenant woke him up and told 9 that somebody has killed Samarjahan and her daughter by setting them on fire. PW3 reached the place of occurrence at 07:30 A.M. Samarjahan was cousin of PW3. PW3 used to visit her occasionally on Eid festival. PW3 also stated that he had not seen accused persons near the house of Samarjahan on the day of incident. On this, prosecution got declared PW3 hostile. In his cross- examination, PW3 deposed that he was interrogated by the police regarding the said incident. PW3 proved his writing and signatures on paper no. 16A. He deposed that he had written on said paper that 'I have full belief that these three had killed the victims by setting them on fire'. PW3 denied the fact that he is in collusion with the accused persons and is stating incorrect facts in order to save them. PW3 was also cross-examined on behalf of the defence. He deposed that whatever is written in paper no. 16A, the same was so written on being asked by the police. The said paper is undated. PW3 deposed that he is class III pass. PW3 was present at the time of postmortem and burial of the deceased. PW3 denied the fact that Avesh was present at the time of postmortem and during burial of the dead bodies.
15) PW4 Mohd. Avesh stated that accused persons are residents of his village. He was also acquainted with Sazia and Samarjahan. PW4 stated that on 18th / 19th August 2009, at about 03:30-04:00 A.M., when he left his house to go to Laksar by train to visit his maternal uncle and reached in front of house of Rizwan, he saw accused 10 persons coming out from the house of Samarjahan speedily. Shahnawaz was related to Sazia. Shoab and Jeeshan used to visit them as they are friends of Shahnawaz. PW4 returned back from Laksar at 07:30 P.M. on the same day. Many relatives were assembled there. On being asked, PW4 was informed that somebody has killed Samarjahan and her daughter Sazia by setting them on fire. PW4 narrated what he witnessed in the morning to Rashid and Rifakat. PW4 as well as Rashid and Rifakat disclosed the same to PW1 Riyasat. The three accused were not present in the village after the incident. In his cross-examination, PW4 deposed that his house is opposite to the house of Rashid and Rifakat, both brothers of Samarjahan. On seeing paper no. 15A, PW4 told that the contents made therein are in his handwriting. Said paper contains the same contents which he disclosed to Riyasat. PW4 further deposed that he pointed out the place to the I.O. from where he saw the accused persons coming out from the house of Samarjahan. PW4 also deposed that the fact of accused persons coming out from the house of Samarjahan, which he witnessed when he was in front of the house of Rizwan, is not mentioned in his statement recorded under Section 161 Cr.P.C., as also in paper no. 17A. PW4 denied the fact the he had not witnessed the accused coming out from the house of Samarjahan on 19.08.2009, at 03:30 A.M. PW4 also denied the fact that he is adducing false evidence after taking legal opinion. This witness also denied the fact that he has been made a 11 witness of the case on being asked by Riyasat at the instance of police.
16) PW5 Shahzad stated on oath that he was acquainted with the deceased as well as the accused persons. PW5 is a witness of recovery of the polythene containing bloodstained apparels worn by accused Shoab at the time of occurrence, mobile owned by Sazia and sleeping pills. He is also a witness of recovery of another polythene containing bloodstained apparels worn by accused Shahnawaz at the time of occurrence. The articles recovered were sealed by the police in his presence. PW5 is also a witness of preparation of recovery memos. PW5 further stated that accused Shoab and Shahnawaz disclosed that they have killed Samarjahan and Sazia. PW5 proved his signatures on the recovery memos and the material exhibits, viz., M.Ext. 42 (mobile Nokia), M.Ext. 43 (matchbox) and M.Ext. 45 (leaf of sleeping pills), M.Ext. 46 (parcel containing clothes worn by accused Shoab), M.Ext. 47 (jeans), M.Ext. 48 (t-shirt); M.Ext. 49 (parcel containing clothes worn by accused Shahnawaz), M.Ext. 50 (trouser), M.Ext. 51 (shirt). PW5 also disposed that the tablets recovered contained narcotics. According to PW5, accused persons confessed in his presence that they have killed both the victims. Shoab also disclosed in his presence that the tablets which were missing from the leaf used to be mixed in the milk. PW5 also stated that Shoab owns milk dairy and was saying that after mixing the tablets in the milk he used to deliver the same in the house of Samarjahan. PW5 12 was cross-examined at length, but nothing material has come in his cross-examination to demolish the case of prosecution and to support the defence version.
17) PW6 Dr. Ajay Mohan Agarwal (Medical Officer) conducted autopsy on the dead bodies of Samarjahan and Sazia. PW6 proved the postmortem reports of both the deceased. Accused- appellants have not denied the veracity of the postmortem report. It is not necessary to reproduce the ante mortem / postmortem injuries found on the person of both the deceased as the same have already been discussed in the foregoing paragraphs. PW6 was also cross-examined on behalf of the defence. Nothing has come in his cross- examination which could be of any help to the accused-appellants.
18) PW7 S.I. Rajeev Rauthan is the Investigating Officer of the case. He recorded the
statement of the complainant and prepared site plan of the place of occurrence. He also took into possession plain piece of floor & bloodstained piece of floor, grinding stone, ashes of both the deceased and bloodstained chunni and sealed the same in the presence of witnesses. PW7 proved site plan of the place of incident (Ext. A-10). The I.O. arrested accused Shoab and Shahnawaz on 20.08.2009. During investigation both the accused confessed that they have killed Samarjahan by hitting her with grinding stone and Sazia was killed by throttling. PW7 also recovered the articles (as mentioned 13 above) on the pointing of accused Shoab and Shahnawaz. He also prepared recovery memos of the same. After the arrest of accused Jeeshan on 27.08.2009, on his pointing, looted jewellery and apparels worn by him at the time of incident were recovered. PW7 prepared recovery memos in this regard. He also procured call details of the mobile owned by Sazia. From the delivery report dated 18.08.2009 it has come to the fore that 10 messages were sent by Sazia on the mobile of accused Shoab. Ext. A-13 was prepared in this regard. On 13.09.2009, entries in respect of postmortem reports of deceased Samarjahan and Sazia as well as panchayatnamas were made in the case diary. On 17.09.2009, statements of scribe of complaint and witness Shahzad were recorded in the case diary. After completion of investigation, PW7 submitted charge sheet (Ext A-16) against all the accused-appellants. PW7 was cross-examined at length. In his cross-examination PW7 deposed that during investigation the fact that a litigation was going on between deceased Samarjahan and his in- laws in respect of some land was revealed. The names of the accused came to light from the applications of Riyasat, Ahsan and Avesh. PW7 denied the fact that the applications were got scribed in the police station itself. He also denied the fact that the applications were not received on 19.08.2009 and due to this reason there is no entry regarding the same in the general diary and for the same reason the applications were left undated. PW7 also denied the fact that nothing was recovered 14 on the pointing of accused persons and the recovery made is false.
19) PW8 S.I. Sachidanand was posted as such in P.S. Kotwali Gangnahar on 17.08.2009. He was a member of the police party which got recovered looted jewellery and bloodstained clothes worn by accused Jeeshan, on his pointing. He sealed the articles recovered on the spot. He also proved the recovery memo (Ext. A-12) regarding recovery of looted jewellery, which was under his signatures. In his cross-examination, PW8 deposed that he took witnesses Nawab and Tehsin along with the police party at the time of recovery made on the pointing of accused Jeeshan. PW8 deposed that after recovery of stolen articles, section 411 of IPC was also added to the crime. He denied the fact that no recovery was made from the accused Jeeshan and a false case was registered in the police station against him.
20) PW9 S.I. Neerja Yadav was posted in P.S. Kotwali Gangnahar on 19.08.2009. She appointed the panches and prepared panchayatnamas of deceased Samarjahan and Sazia on the said date. She also took the dead bodies in her possession and after sealing the same sent them for postmortem. PW9 denied the fact the she had completed the entire proceedings from the police station itself and not by visiting the place of occurrence. She also denied the fact that the panchayatnamas were not done on the time which was disclosed in it.
1521) In defence, DW1 Constable Chandra Mohan Negi was got examined. In his examination- in-chief, DW1 stated that he is familiar with the handwriting and signatures of H.C. Satyendra Kumar made in the General Diary. DW1 remained posted with Satyendra Kumar. DW1 proved the handwriting and signatures of Satyendra Kumar and entry (Ext. B-1) made thereof in the General Diary.
22) DW2 Naseem Ahmad is also a resident of village Teliwala. He is a witness of postmortem supurdigeenama. He proved his signatures on Ext. B-2 and Ext. B-3. DW2 deposed that he and Avesh are residents of same village and he recognizes the signatures of Avesh. There is no other person by the name Avesh in his village. He further deposed that the deceased were his relatives, therefore, he attended their burial. Accused Shahnawaz is nephew of DW2 by distant relation. Accused Shoab and Jeeshan also reside in his neighbourhood. He denied the fact that the person named Avesh s/o Asgar, whose name is mentioned in Ext. B-2 and Ext. B-3, is not the same person who resides in his village. He also denied the fact that he is adducing false evidence as the accused persons were his neighbours and relative, respectively.
23) It is not a case of direct evidence but a case of circumstantial evidence. As such, this Court has to examine whether the prosecution has been successful in proving all the links of the chain of circumstances to establish that the accused-
16appellants and none else have committed the crime as alleged in the charges framed against them.
24) Learned Senior Counsel appearing on behalf of accused-appellants Shoab and Shahnawaz contended that the appellants were not named in the FIR. It is a case of circumstantial evidence and not of direct evidence and there is no strong motive on the part of the appellants to commit the murder of both the victims, therefore, appellants cannot be held guilty.
25) It is true, that the case in hand is of circumstantial evidence and not of direct evidence. Firstly, strong motive has to be there for circumstantial evidence. PW5 is a witness of recovery of bloodstained clothes worn by accused- appellants Shoab and Shahnawaz on their pointing. It has come on record in the evidence of PW5 that both the accused confessed in his presence that they killed Samarjahan and Sazia. At the time of recovery of sleeping pills (sedative) from accused- appellant Shoab, he disclosed that he used to mix the tablets, which were missing from the leaf, in the milk. Shoab owns a milk dairy and he used to mix the tablets in the milk supplied to the house of Samarjahan. It appears that there were illicit relationship between accused-appellant Shoab and victim Sazia. Shoab used to supply milk laced with Aprozolan (a sedative) in the house of victims, which Sazia used to offer to her mother. Shoab and Sazia often used to meet at late night in the house of Samarjahan. Mobile phone of Sazia was recovered 17 on the pointing of Shoab. The call details of the conversation which took place between them revealed that 10 messages were sent by Sazia to Shoab on the date of occurrence. Samarjahan has fixed the marriage of Sazia elsewhere and Shoab was not happy with this. He along with accused- appellants Shahnawaz and Jeeshan, who are his friends, planned to loot the jewellery purchased for the marriage of Sazia. Unfortunately, during loot Sazia identified the accused-appellants Shahnawaz and Jeeshan and her mother Samarjahan woke up, and due to this reason accused-appellants killed both of them. As such, the motive disclosed by the prosecution appears to be just and reasonable.
26) Present case is not a case of direct evidence in which any witness has seen accused persons committing murder of the two deceased and setting the house at fire. But there is chain of circumstances which is alleged by prosecution and in support of which evidence has been adduced to prove the charges against the appellants. The chain of circumstances consists of following links:
i) There is strong evidence of last seen against all the accused-appellants.
ii) The postmortem reports clearly indicate that both the victim died homicidal death and the burn injuries sustained by them were postmortem.
iii) There were illicit relationship between accused-appellant Shoab and victim Sazia.
iv) Looted articles, viz. mobile, silver ornaments, bloodstained clothes worn 18 by the accused- appellants at the time of occurrence were recovered on their pointing.
v) The mobile phones of all the accused were found active on the fateful day, i.e., 19.08.2009 at the same place at Padli Gujjar, Telliwala, which fact is duly corroborated in the testimony of PW7 also.
vi) The call details of accused Shoab and deceased Sazia reveals that there are 10 massages sent by Sazia to the accused Shoab between 08:00 P.M. to 09:00 P.M. on 18.08.2009.
vii) The house was set on fire to eliminate entire evidence of murder. The dead bodies of the deceased were charred beyond recognition.
27) Now, this Court has to see that to what extent the prosecution has succeeded in proving the aforesaid circumstances and whether, all the links are complete to bring home the charges framed against the accused-appellants, or not?
28) The first circumstance, and most important of all, relates to last seen evidence. The said fact of last seen is established not only from the oral evidence on record by the statement of PW4 Mohd. Avesh, but from paper no.15A also. PW4 stated on oath that on 18/19.08.2009, between 03:00 to 04:00 A.M., at mohalla Teliwala, Village Padli Gujjar, he had seen the accused-appellants coming out of the house of deceased Samarjahan.
19PW4 was going to his maternal uncle's house at Laksar by train. When he returned back to his house in the evening at about 7:30 p.m., many a villagers were assembled there. On inquiry he was told that someone had killed Samarjahan and Sazia by putting them on fire. PW4 also took the police to the place from where he has witnessed the accused- appellants coming out from the house of deceased Samarjahan. This witness proved paper no.15A, which was in his handwriting and contains the same contents which he disclosed to complainant Riyasat. The evidence adduced by PW4 appears to be natural and reliable.
29) Though PW3 Ahsan was declared hostile by the prosecution, but before that he deposed that marriage of Sazia was to be solemnized after a month. PW2, who is also a resident of same village, stated on oath that on the fateful day when he was returning to his house at about 03:45 A.M. he noticed smoke emanating from the house of deceased Samarjahan. When PW2 went inside the house there was smoke everywhere and dead bodies of Samarjahan and Sazia were lying in charred condition. Thus, in view of this Court, this circumstance is fully proved on record that the accused-appellants have killed both the victims and set the house on fire to cause disappearance of evidence.
30) The next circumstance relates to the fact that the postmortem reports clearly indicate that both the victim died homicidal death and the burn 20 injuries sustained by them were postmortem which corroborate the prosecution story. The postmortem reports (Ext. A-2 and Ext. A-3) of Samarjahan and Sazia respectively, read with statement of PW6 Dr. Ajay Mohan Agarwal, who conducted the postmortem examination, clearly shows that cause of death of Samarjahan is coma due to ante mortem head injury and cause of death of Sazia is asphyxia due to ante mortem gagging. Mouth of deceased Sazia was found gagged with a cloth tightly clinched between teeth, external part of cloth was found partially burned while internal part was found wet and intact. The house was set on fire thereafter with an intention to cause disappearance of evidence after committing double murder. Both the dead bodies were also found charred beyond recognition. As such, this circumstance is also proved on the record.
31) The third circumstance is that there were illicit relationship between accused-appellant Shoab and victim Sazia. It has come in the statement of PW5 Sahzad that Shoab owns a milk dairy and he used to mix the tablet Aprozolan (a sedative) in the milk supplied to the house of Samarjahan and Sazia used to offer the milk laced with sedative to her mother. It appears that there were illicit relationship between accused-appellant Shoab and victim Sazia. Shoab and Sazia often used to meet at late night in the house of Sazia. Accused-appellants Shahnawaz and Jeeshan have confessed that Shoab and Sazia had a love affair since 5-6 month and mother of Sazia had fixed her marriage at Sultanpur and said 21 marriage was scheduled after Eid. Shoab was not happy with this marriage. Jewellery was also purchased for the said purpose. Shoab himself told this fact to the other two accused-appellants. On 18.08.2009, all of them chalked out a plan of loot in the house of Samarjahan which turned into a catastrophe. As such, this fact is also proved beyond doubt.
32) Fourth circumstance against the accused-appellant Jeeshan is that looted articles, viz. mobile, silver ornaments, bloodstained clothes worn by him at the time of occurrence were recovered on his pointing. Jeeshan confessed his guilt after his arrested on 27.08.2009 before the Investigating Officer. The memo of recovery made on the pointing of Jeeshan is exhibited as Ext. A-12. Accused-appellants Shoab and Shahnawaz were arrested on 20.08.2009 and the bloodstained apparels worn at the time of incident, mobile of the deceased and some sleeping pills were recovered on their pointing from different places. Whereas the accused-appellants have not denied the fact that the clothes recovered does not belong to them in their statement recorded under Section 313 of Cr.P.C., the prosecution witnesses of said recovery have fully proved that these clothes were recovered on the pointing of accused-appellants. The report of FSL, Dehradun also proved the fact that the blood stains found on these apparels contained human blood. Therefore, this fact also fully corroborates the prosecution version. Both the recoveries were made in the presence of PW7 Rajeev Rauthan (I.O.), 22 who has proved Ext. A-11 and Ext. A-12 prepared in this regard. The statement of this witness is natural and also appears to be true, and there is no reason on the record to disbelieve the statement of this witness as he has no enmity with the accused- appellants.
33) Fifth circumstance against the accused- appellants is that the mobile numbers of all the accused were found active on the fateful day, i.e., 19.08.2009 at the same place at Padli Gujjar, Telliwala, which fact is duly corroborated in the testimony of PW7 also. PW7 stated on oath that he received the call detail report from SOG office, Haridwar regarding mobiles phones of all the appellants which contain the call details from late night of 18.08.2009 till the morning of 19.08.2009. The location of tower was also shown at village Padli Gujjar. There is nothing on record which creates reasonable doubt as to the veracity of statement of this witness.
34) Sixth circumstance, which is found proved on the record, is that the call details of accused-appellant Shoab and deceased Sazia reveals that there were 10 massages sent by Sazia to Shoab between 08:00 P.M. to 09:00 P.M. on 18.08.2009. A perusal of the content of these massages would reveal that deceased Sazia had intimate relations with accused-appellant Shoab. From these messages the fact relating to sending of sleeping pills to Sazia; serving the same to her mother Samarjahan with limewater or vegetable and sending the pills through Shahnawaz and picking 23 the same from staircase came to light. This clearly establishes the fact that on 18.08.2009, accused- appellant Shoab and deceased Sazia were in constant contact with each other and there was conversation over mobile and exchange of messages between them, which fact is corroborated by PW7 (I.O.) in his statement recorded on oath. As such, this circumstance also stands proved on the record.
35) Seventh circumstance is that the house of the deceased Samarjahan was set on fire to eliminate entire evidence of murder. Co-accused Shahnawaz while confessing his guilt stated that as per their plan first of all Shoab entered the house, thereafter he (Shahnawaz) along with Jeeshan entered the house. Sazia identified the two and they killed her by throttling. In the meantime, Samarjahan also woke up. Accused-appellants caught hold of her on the bed and Shoab gave a blow on her head with the grinding stone, as a result of which she fell down. Accused-appellants collected the valuables, including the jewellery, from the house and with the intention to eliminate the evidence set fire on the household articles. The dead bodies of the deceased were found charred beyond recognition. This fact is also verified by PW7 in his statement recorded on oath, which fully corroborates the prosecution story.
36) In view of above discussion, all the circumstances in the form of complete chain are proved and leave no room for doubt as against the accused-appellants, as to their involvement in the commission of murder of Samarjahan and Sazia, 24 with common intention in the crime. Therefore, we are in agreement with the learned trial court that the prosecution has been successful in proving the charges framed against the appellants beyond reasonable doubt.
37) In the above circumstances, in view of the reasons discussed above, both the appeals are liable to be dismissed. The same are dismissed. All the appellants are in jail. The Registry is directed to send the lower court record back to the trial court to make the convicts-appellants serve out the sentence awarded against them.
38. Let a copy of this judgment be kept in the file of connected criminal appeal no. 215 of 2010.
(Lok Pal Singh, J.) (V.K. Bist, J.) Dt. October 22, 2018. Negi