Allahabad High Court
Gaffer Alias Kana And Another vs State Of U.P. on 30 May, 2022
Bench: Sunita Agarwal, Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 11.03.2022 Delivered on 30.05.2022 Court No. - 46 Case :- CRIMINAL APPEAL No. - 4540 of 2014 Appellant :- Gaffer Alias Kana And Another Respondent :- State of U.P. Counsel for Appellant :- A.V. Chaurasia,Amit Daga,D.S. Khan Counsel for Respondent :- Govt.Advocate,Pankaj Bharti Alongwith Case :- CRIMINAL APPEAL No. - 4541 of 2014 Appellant :- Farman And Another Respondent :- State of U.P. Counsel for Appellant :- A.V. Chaurasia,Amit Daga,D.S. Khan,Pawan Singh Pundir Counsel for Respondent :- Govt.Advocate,Pankaj Bharti Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Vikas Kunvar Srivastav,J.
(Delivered by Justice Sunita Agarwal)
1. Heard Diwan Saifullah Khan learned counsel for the appellants in both the connected appeals, Sri Pankaj Bharti learned counsel for the first informant and Sri Patanjali Mishra learned A.G.A. for the State-respondents.
2. At the outset, it may be noted that the appellant No.1 Gaffar @ Kana son of Niaz Ali had died and the appeal on his behalf has been abated. The appeal, thus, survives on behalf of three appellants namely Imran, Farman and Buddhu.
3. The present appeal is directed against the judgement and order dated 03.11.2014 passed by the Additional Sessions Judge, Court No.15, Muzaffar Nagar in S.T. No.842 of 2011 arising out of Case Crime No.17 of 2011 under Section 364, 302, 201 IPC, P.S. Thana Bhawan , District Muzaffar Nagar connected with S.T. No.843 of 2011 arising out of Case Crime No.214 of 2011 under Section 25/4 of Arms Act, Police Station Thana Bhawan, District Muzzafar Nagar whereby four appellants in two connected appeals have been convicted under Section 364, 302 read with Section 34 and Section 201 IPC and the accused-appellant Imran has also been convicted under Section 25/4 Arms Act. The accused persons have been awarded sentence of life imprisonment with Rs.10,000/- each, for the offence under Section 364 IPC; The default punishment for which is 10 months additional imprisonment for each accused. Under Section 302 read with Section 34 IPC, the appellants have been sentenced for life imprisonment with Rs.10,000/- fine each; the default punishment for each accused is 10 months additional imprisonment. The appellants have been sentenced for 5 years rigorous imprisonment with fine of Rs.5000/- each for the offence under Section 201 IPC; the default punishment of which is 5 months additional imprisonment. The accused-appellant Imran has been sentenced for one year imprisonment with Rs.5000/- fine under Section 25/4 Arms Act, the default punishment for which is 5 months additional imprisonment. All the sentences are to run concurrently.
4. The prosecution case starts with the first information report lodged on 14.01.2011 at about 11.05 AM for the incident occurred on 13/14-01-2011, between 04.00 PM to 09.00 AM. The written report of the occurrence was lodged by Yunus son of Gafoor with the assertion that his grandson Talib was missing from his house since 04.00 PM on 13.01.2011 and while they were searching the dead body of Talib was found on 14.01.2011 at about 09.00 AM in the field of Iqbal son of Ummed Ali @ Medu. Someone had killed him by slashing his neck. The body was lying on the spot.
5. The check report was prepared by PW-4, the Head Moharir posted in P.S. Thana Bhawan on the basis of the written report submitted by Yunus. It is proved by PW-4 that the check report was in his handwriting and signatures, marked as Exhibit Ka-2-A. The G.D. Rapat No.15 at 11.05 AM of the lodging of the report was prepared in the same process and the carbon copy of which on record was proved by PW-4 from the original G.D. brought in the Court as Exhibit Ka-3. The check report of case crime No.214 of 2011 under Section 25/4 Arms Act against Imran was also prepared by PW-4 and proved as Exhibit Ka-4, being in his handwriting and signatures. The G.D. entry of the same namely G.D. Rapat No.25 at 12.30 PM was proved as Exhibit Ka-5.
6. It was stated by PW-4, in cross, in relation to the G.D. No.25 of Case Crime No.214 of 2011 that the original was not brought in the Court.
7. PW-4 further proves G.D. Rapat No.37 at 23.50 hrs dated 14.01.2011 wherein it was noted that one Mustaqeem son of Jamshed resident of Maishani was interrogated. The said G.D. was proved as Exhibit Kha-1. Similarly G.D. No.9 at 08.20 AM dated 15.01.2011 having entry of interrogation of three persons Altaf son of Ummed Ali, Yaqoob son of Naseem and Iqram son of Altaf had been proved by PW-4 as Exhibit Kha-2.
8. PW-4 stated that the special report of the case was sent on 15.01.2011 and denied the suggestion of the first information report being ante-time. PW-4 was confronted with the date of the signature of the Chief Judicial Magistrate on the first information report and stated that it seemed that the date was not clear. The suggestion that no FIR was in existence at the time of inquest was denied by him. The inquest was conducted on 14.01.2011 and commenced at about 12.15 PM, ended at 14.00 hrs. The inquest report records that the dead body of Talib was lying in the open field of Ummed son of Jhanda in flat position.
9. The doctor PW-6 who conducted the postmortem stated that the dead body was received by him alongwith police papers and it was brought by two police personnel in sealed state; the body was identified by the Constables who brought it. The age of the deceased was about 12 years and the proximate time of death was 10.00 hrs before the postmortem. Rigor mortis was present over the entire body and both eyes were half opened. The ante-mortem injuries found on the person of the deceased are:-
"One incised would size 10 cm x 5 cm x soft tissue throat deep. Trachea esophagus and below carotid arteries were also cut and muscle around them, present in front and .....neck. The injury is 6 cm below from chin and 5 cm above from suprasternal notch and is 3.5 cm below from left ear and is 6 cm below from right side ear."
10. On internal examination, both the lungs were congested, heart was empty, liver was congested. 300 ML semi digested food was found in the stomach, the gallbladder was half filled, urinary bladder was empty. The cause of death as per the opinion of the doctor was shock and hemorrhage due to ante-mortem injuries. The clothes found on the dead body were kept in a sealed cloth and handed over to the police personnel alongwith police papers. The postmortem report was proved as exhibit Ka-6 by PW-6, being in his handwriting and signatures. It was stated by PW-6 that there was possibility of the death having being caused on 14.01.2011 in the morning between 06.00-07.00 AM by knife and the injuries could be the immediate cause of the death.
11. In cross, the PW-6 was confronted on the presence of rigor mortis, the proximate time of death and the state of the stomach narrated in the report. The suggestion that the death could not have been caused on 14.01.2011 at about 06.00-07.00 AM was denied by PW-6. He further denied the suggestion that death of the deceased could have been caused on 13.01.2011 between 08.00-09.00 PM.
12. PW-7 is the Sub-Inspector posted in the police station concerned on 14.01.2011 who proved the inquest and other related papers prepared by him under the instruction of the Investigating Officer (PW-8), as Exhibit Ka-7 to Exhibit Ka-11, being in his handwriting and signatures. He stated that the dead body was sealed and sent for postmortem with two Constables namely Akbar Ali and Amit.
13. In cross, PW-7 stated that when he reached the spot, family members and villagers were collected and the experts were called to crack the incident. He denied the suggestion that the FIR was not lodged till the inquest was completed and that the inquest was ante-time, prepared at the police station.
14. PW-8 is the Investigating Officer of the Case Crime No.17 of 2011 lodged under Section 302, 201 IPC. It was stated by PW-8 that the said criminal case was registered on the written report given by Yunus son of Gafoor o 14.01.2011 and the FIR was unnamed. The investigation was received by him and the check report and report G.D. were copied in the C.D. After recording statement of the first informant, the site plan was prepared at the instance of the first informant, it was proved as Exhibit Ka-13 being in the handwriting and signature of PW-8. The Recovery memo of blood stained and plain earth was proved as Exhibit Ka-14. It is stated by PW-8 that the statements of the witnesses were recorded on 15.01.2011 and the postmortem report was entered in the case diary on the same date. The search for the accused was conducted but no-one could be nabbed. On 30.01.2011, the accused appellant Farman was arrested who took names of three accused/appellants Imran, Gaffar and Buddhu.
15. Section 364 IPC was added by making an entry in the G.D. on 30.01.2011, copy of which was made in the C.D. The said G.D. was proved as Exhibit Ka-15 being in the handwriting and signatures of the Constable clerk posted in the police station, identified by PW-8. The accused Buddhu was arrested on 21.02.2011 from his house. Accused Gaffar had surrendered in the Court on 21.02.2011. Accused-appellant Imran was arrested on 26.04.2011 in another criminal case by the Shamli Police, information of which was received in the police station Thana Bhawan. The Investigating Officer PW-8 stated that he went to P.S. Shamli to interrogate the accused Imran and on his disclosure statement, the murder weapon knife was recovered from a graveyard in the presence of the witnesses, recovery memo of which was proved as Exhibit Ka-2. At this stage, a sealed bundle was opened in the court and the knife found therein was proved being the same article recovered by PW-8, exhibited as Material Exhibit-1. The clothes of the deceased were shown to this witness who proved them as Material Exhibit 3 to 7. The blood stained and plain earth were marked as Material Exhibit 8 & 9 after its identification by PW-8. It was stated by PW-8 that in G.D. Rapat No.11 at 07.15 hrs dated 30.01.2011, the interrogation of accused Farman had been recorded and the said G.D. was proved as Exhibit Ka-18.
16. In cross, PW-8 stated that the case was registered in his presence and he immediately went to the spot. Lot of crowd was collected there and the public was making demonstration and pressing for the arrest of the accused. He stated that in order to crack the crime, many persons were interrogated and entries in that regard were made in the G.D. He further stated that the family members of the deceased were also pressurizing the police for unveiling the crime. He stated that the site plan was prepared at the instance of the first informant and by the time he filed the charge sheet, the FSL report was not received. No DNA test was conducted. PW-8 was confronted with the statement of the witnesses interrogated by him as also the statement of the first informant about the place of recording of their statement and the motive stated by the first informant in his previous version. He was also confronted with the first statement (section 161 Cr.P.C.) of the witnesses.
17. It has come in the cross-examination of PW-8 that he interrogated one Altaf on 15.01.2011 at about 11.00 PM in the village, in front of the house of the deceased. The statements of three other persons Shaqeel, Mustafa and Gaffar were also recorded on the same day. Before taking statement of Altaf neither the name of any accused nor any witness came into picture. Altaf was also taken into police custody and G.D. entry of the same namely Rapat No.9 dated 15.01.2011 at 08.20 was proved as Exhibit Kha-2.
18. The statement of PW-8, in cross, has been brought to the notice of the Court that during investigation Altaf and Mustafa disclosed that they had seen the accused with deceased alive and no other witness disclosed the same.
19. PW-8 further stated that he had recorded the statement of the mother of the deceased on 03.03.2011 and before that she was not in a mental state to give any statement. Section 364 IPC was added on the basis of the statement of accused Farman. He then stated that he did not send the clothes of the deceased or recovered articles to the forensic laboratory and apart from three persons namely Imrana, Mustafa and Shaqeel, no-one told him that he had seen the deceased alive in the company of the accused persons. Imrana (mother of the deceased) told him that she had seen accused Imran (only) with the deceased. He was further confronted with the statement of the witnesses of last seen and denied that he had recorded forged statements and submitted a false charge sheet on the basis of a forged investigation.
20. PW-9 is the Investigating Officer who conducted investigation of Case Crime No.214 of 2010 under Section 4/25 Arms Act. He proved the recovery and the statements recorded by him during the investigation and the charge sheet submitted by him as Exhibit Ka-20. PW-9 was confronted with the recovery of weapon Knife and all suggestions of false recovery were denied by him.
21. Amongst the witness of fact, PW-1 Yunus is the first informant and grandfather of deceased Talib. He stated in the examination-in-chief that Talib got missing from his house on 13.01.2011 at about 04.00 PM. They kept on searching for him and the dead body was found on 14.01.2011 at about 09.00 AM in the sugarcane field of Iqbal. The child Talib was killed by slashing his neck. He further proved the written report submitted by him in the police station as Exhibit Ka-1 and stated that the report was written by Pappu son of Altaf on his dictation and it was read over to him and then he put his thumb impression. PW-1 further stated that they had no enmity with the accused persons and narrated some purchase of plots by his brother Jamshed from one Moosa about 10-15 days prior to the incident. He then stated that accused Imran was a history sheeter and life convict. Accused Farman is brother of Imran and his accomplice. Accused Gaffar @ Kana was charged with the Gangster Act.
22. In cross for accused Imran, PW-1 described the pedigree of his family and stated that the deceased child Talib was grand son of his brother Munfait. The names of parents of the deceased child has been disclosed as Mangtudeen and Imrana. From the statement of PW-1, it has come that all the prosecution witnesses were family members of PW-1, i.e. related to each other.
23. It is then stated by PW-1 that he was interrogated by the police on the next date of the incident and the fact of purchase of plot was disclosed to the Investigating Officer. He stated that the dead body of Talib was found in the field of Iqbal. He went near the dead body before the Investigating Officer came. When the Investigating Officer came; the dead body was taken out from the sugarcane field and it was not in the sugarcane field of Talib. Further, when the Investigating Officer came, the body was in the field of Jhanda.
24. The suggestion that the accused Imran was falsely implicated after three days of the incident at the instance of the police was denied by PW-1.
25. In cross for other accused persons, the location of the place of the recovery of the dead body, i.e. field of Iqbal had been explained by PW-1 with the names of owners of the adjoining fields. He then stated that he came to know at about 04.00 PM that the deceased was missing and the said information was given by grandmother and mother of the deceased. At that time, he was present in his Gher which was at a distance of 100 meter from his house and he was all alone. On getting the information, they started searching for the child Talib and announcement on mike was made from an STD shop at about 05.00 PM. The entire village started searching for the child and atleast 200 villagers were collected. They could not get any information during night though the search was conducted throughout the night.
26. The body was first located by some children of the village and on receipt of the said information, when they went near the dead body, blood was oozing out from the wounds and that the body was recovered around 09.00 AM. They went to the police station after recovery of the dead body and the names of the persons who accompanied PW-1 to the police station had been disclosed by him.
27. It has come in the cross-examination of PW-1 that Altaf son of Ummed, a family members of PW-1 had a dispute with accused Gaffar due to a litigation going on in the chakbandi Court. He then stated that the police reached at the spot alongwith him after lodging of the first information report and the necessary formalities were completed. On confrontation, PW-1 stated that the body was taken out from the sugarcane field not by the police but by some children, who he could not recollect. The place of the recovery of the body was 100 meter from the house of Mangte, father of the deceased child. There were blood stains on the sugarcane leaves but he could not recollect whether blood stained leaves were seized by the Investigating Officer.
28. When confronted about his statement under Section 161 Cr.P.C., PW-1 stated that when the Investigating Officer recorded his statement at his house on the next day i.e. a day after the recovery of the dead body, other persons of the family members were also interrogated. He, however, could not tell that the statement of father, mother and grandmother of the deceased were also recorded by the Investigating Officer or not. It was then stated by PW-1 that by the time his statement was recorded he did not have any conversation with Gaffar, Altaf, Shaqeel and Mustafa and they did not tell him anything.
29. PW-1 then stated that before his statement under Section 161 was recorded, he met his brother Munfait, father of the deceased Mangtudeen and they discussed about the incident but he did not tell him anything about the occurrence. Even the family members of Altaf, Mustafa and Shaqeel did not pass on any information to him about the incident to whom he also talked. He then stated that no-one was interrogated at his house on the date when the Investigating Officer interrogated him and that the Investigating Officer remained in the house of PW-1 for 15-20 minutes. He then stated that after about 2 days of recording of his statement, he talked to Altaf, Shaqeel, Gaffar and Mustafa and, thereafter, they kept on discussing about the incident.
30. In cross, PW-1 stated that the mother of the deceased told him that deceased Talib was playing with the children but he did not try to ascertain the names or address of those children with whom Talib was playing, as the mother of deceased Talib told him that she did not know as to who were those children. It was then stated by PW-1 that in a criminal case which was going against Gaffar, a settlement had been arrived. The suggestion of false implication of the accused persons due to enmity related to Pradhani of the village had been denied by PW-1.
31. PW-2 is Gaffar son of Munfait, uncle of the deceased Talib. PW-2 stated that on the day, when the dead body of the deceased was recovered from the field of Iqbal, he and Shaqeel went to the field of Hamizurrahman in the morning to attend the call of nature. Four accused persons namely Gaffar, Imran, Farman and Fukran were coming out from the field of Iqbal at that time and that they (accused) were quite disturbed and went hurryingly towards the west. He and Shaqeel saw the four accused as soon as they sat in the field to defecate. Accused Imran was carrying knife in his left hand. Seeing them, the accused persons tried to hide themselves and went to the field of Kamil. P:W-2, in chief itself stated that he could not disclose the aforesaid fact to Yunus (first informant) before lodging of the first informant report as he did not met Yunus being unwell. He then stated that he met Yunus at about 01.00 AM (in the night) only after the deceased Talib was cremated. The said fact was also disclosed to the Investigating Officer. PW-2 then stated that the deceased Talib was killed by the accused persons out of greed for money.
32. PW-2 is also the witness of recovery of knife (murder weapon) on the pointing out of accused Imran and stated that the police came to them on 26.04.2011 and told them to be witness of recovery. PW-2 had identified his signatures on the recovery memo which was exhibited as Exhibit Ka-2.
33. The pedigree of his family was narrated by PW-2 and it was stated that witness Shaqeel is a family member. Altaf and Mustafa, two witnesses interrogated by the police, are also members of the same family. The topography of the field of Iqbal, Altaf, Kamil and Gaffar and the crops standing therein at the time of the incident had been described by PW-2. He then stated that the dead body was recovered in the same field of Iqbal as described by him. He stated that no-one informed him that the child was missing but he presumed at about 05.00-05.30 PM that the child got missing while playing with other children as the child (deceased) was not seen. The exact time of the incident could not be told by him.
34. PW-2 then stated that on the date of the incident, in the morning, he went to his field at around 10.00 AM and in the evening at about 05.00-05.30 PM and when he came back, people were already searching for the child and he also joined them. By 06.00 PM, the entire locality knew that Talib was missing. All the members of the family were searching for the missing child and they kept the searches on for the whole night. He then stated that the information of missing of the child was given at the police station which was barely 05 KM from his village but no written report was given and he did not know as to who went to the police station to give the information of missing child. The police personnel though came in the night but they did not search for the child and went away.
35. He then stated that the Investigating Officer recorded his statement but before his interrogation, he did not meet Yunus, (the first informant) and, that is why he could not tell him of having seen the accused persons going in a hurried manner. This fact had also not been noted in his statement under Section 161 Cr.P.C. and the reasons for that could not be known to him. When confronted with his statement under Section 161 Cr.P.C., PW-1 stated that the fact that he met Yunus at about 01.00 AM (in the night) and that the accused persons killed the deceased due to greed of money were told to the Investigating Officer but why it was not mentioned in his statement was not known to him. He was confronted and then told that he did not consult any doctor for his ailment. It was then stated by PW-2 that Iqbal in whose field the dead body was found is brother of Altaf and he did not know as to whether any litigation in Chakbandi court was going on between the accused Gaffar and the witness Altaf. In the same breath, PW-2 denied any such enmity between Gaffar and Altaf.
36. It was admitted by PW-2 that the police had interrogated Mustafa brother of Shaqeel and witness Altaf in the matter of missing of the child Talib. In cross, PW-2 was further confronted with his previous version under Section 161 Cr.P.C. and he stated that the fact that he went outside his house to defecate and that the accused persons went to the field of Kamil, if not mentioned in his statement, the reason could not be known to him. On further confrontation, PW-2 admitted that a toilet (latrine) was existing in an open plot in front of his house. He also admitted that the crop of wheat was standing in the field of Hamizurrahman and there was a chak road at the east side of the said field. PW-2 further stated that though it was a winter month but there was no fog and the sky was clear. When he sat to defecate, no fires were made. He was at the western side in the field of Hafizurrahman and the accused persons were at a distance of 10-11 paces from there and they were not covered with a sheet. When he went to defecate, he did not know that his family members were searching for his nephew (son of his real brother).
37. The place were they went to defecate was not shown to the Investigating Officer. He then stated that he did not interrupt the accused Imran even after seeing knife in his hand and he did not go to see the place wherefrom the accused persons came out with the knife. He did not ask the accused the reason for running away nor raised the alarm. He simply defecated and went to his home and, thereafter, he started searching for Talib. Even at the time of searches he did not inform to any member of his family that he saw accused persons coming out of the field of Iqbal having knife in their hand. The dead body was recovered after one and a half hours of him seeing the accused persons coming out of the field of Iqbal. At the time when the dead body was recovered, he was in his house and when he heard lot of hue and cry, he went to the field of Iqbal where the dead body was recovered. He did not disclose any of the witnessing about the accused having been seen near the scene of the crime even after the recovery of the dead body.
38. He then stated that only after the cremation of the dead body, he disclosed to his Uncle (PW-1) that he saw the accused persons coming out of the sugarcane field and before that this fact was not told to anyone.
39. Giving description about seeing the accused persons at the place of the incident, it was narrated by PW-2 that all the accused persons came out one after the other and accused Imran was the last. PW-2 denied the suggestion that it was wrong to say that he did not go to defecate in the field of Hamizzurahman and did not see the accused coming out of the field of Iqbal. He stated that though the motive of commission of crime was not disclosed to the Investigating Officer, the reason as to why it was not mentioned was not known to him.
40. PW-2 was further confronted with the recovery and stated that he put his signatures on the memo of recovery of the knife and the said memo was prepared on the spot. A suggestion of enmity related to the election of Gram Pradhan was given to PW-2 to which he replied that the accused and the complainant side were supporting two rival candidates.
41. PW-3 Mustafa is son of Faiyaz who stated that he knew the accused persons as also the father of deceased Talib as they were residents of the same village. At about 06.00 PM, while he was going alongwith Altaf towards his house through Byepass he saw accused persons namely Imran and Gaffar @ Kana going on a motorcycle alongwith deceased Talib. On seeing them, Imran and Gaffar tried to hide their faces, but both he and Altaf identified the accused persons. On coming back to the village, he and Altaf went to their own houses and on the next morning at about 06.00 AM, he went to Delhi to see his son. He came to know about the murder of Talib through telephone after he reached Delhi and also came to know that the dead body was recovered. On the next day, he came back to his village by afternoon from Delhi. The Investigating Officer was then met and the entire incident was narrated by him.
42. PW-3, in cross, stated that he did not have knowledge of the place of recovery of the dead body and that he went to Delhi about 2-3 days prior to the recovery of the dead body. He then stated that he came to know about the recovery of the dead body in Delhi through telephone and then came back to the village. PW-3 was confronted with his statement under Section 161 Cr.P.C. and stated that he told the investigating officer that he had seen the deceased alive with the accused Imran and Gaffar @ Kana on 13th (13.01.2011) while they were going on motorcycle but as to how the date 14.01.2011 was mentioned therein could not be known to him. He then reiterated that the accused persons had crossed them from the front while taking the deceased on the motorcycle. The description of the motorcycle was not noticed by him. PW-3 further stated he had informed Yunus and other family members of deceased Talib about the last seen on the date of the incident itself, but the said fact was not told to Mangtudeen (father of the deceased). He also told the Investigating Officer that the fact of last seen was disclosed to Yunus, the first informant. The suggestion of enmity on account of the election of Gram Pradhan was denied by PW-3. On further confrontation, PW-3 stated that he was related to Yunus and deceased Talib and the father of deceased Talib was his nephew.
43. PW-3 further, in cross, stated that the police had interrogated him on 13.01.2006 at about 12.00-01.00 PM (during day time) at the place of the incident and in the same breath, he further stated that he was interrogated at the house of Yunus where many people were collected.
44. Mother, father and grandmother of the deceased were also present and they were interrogated. PW-3 admitted that a litigation related to chakbandi case was going between his nephew Altaf and accused Gaffar for about 6 months prior to the incident.
45. He then stated that those who were arrested by the police to investigate the crime were released on the second day of the recovery of the dead body. He then stated that on the day of the recovery of the dead body he was sitting at the Kolhu of Altaf which was closed and he did not went near the dead body nor to the police station with Yunus to lodge the report. PW-3 goes on to say that he did not go near the dead body after police came on the spot, people were talking about the taking away of the dead body by the police but he did not know the time as he went to his house and did not go to see the dead body. He further stated that he did not remember as to when he came to know about the recovery of the dead body and then stated that he was not amongst those who were searching for deceased Talib.
46. When further confronted, PW-3 stated that on the date when the dead body was recovered he went to the 'Kolhu' of Altaf in the morning and was sitting there about 1-2 hours before the recovery. The place where the dead body was recovered was about 100 yards away from the field of Altaf. PW-3 then stated that when he came back to his house after seeing the accused persons on the motorcycle with the deceased alive, he did not cross the house of Mangtudeen (father of the deceased) and took a different route. He further stated that when he came to the 'Kolhu' of Altaf, at that time family members of deceased Talib were searching, and he met Yunus (the first informant), Mangtudeen (father of the deceased), Gaffar (Uncle of the deceased) and Shaqeel, (the witness). He then stated that he told all of them that he and Altaf had seen deceased Talib going alongwith the accused persons on a motorcycle. On further confrontation, PW-3 stated that he gave the statement to the Investigating Officer that he saw accused persons on motorcycle on 14.01.2011 at about 06.50 PM and it was also told that he went to Delhi, but as to why the fact of going to Delhi and that he came to know about the recovery of the dead body there only, were not mentioned in his statement, by the Investigating Officer, was not known to him. PW-3 further stated that he did not see the field of Iqbal son of Ummed, wherein the dead body was recovered. He then stated that the accused persons were also covering themselves with sheets and he could tell the colour of it and further whether they were wearing helmet or not.
47. Lastly on the suggestion, that he did not see the accused Imran and Gaffar alongwith the deceased alive on the motorcycle on 13.01.2011 was denied by PW-3, he stated that it was wrong to say that he did not see anyone and nothing happened before him. On the asking he stated that he could not remember as to what clothes were worn by the deceased. He also denied the suggestion that the fact of going to Delhi was stated by him for the first time in the Court and that he was making a false statement.
48. At this stage, we may note that the statement of PW-3 is full of contradictions as he kept on oscillating on the statement of last seen. At one point of time, he stated that he had seen the deceased alive with the accused on 13th (13.01.2011), the day when the deceased child had gone missing and another point of time he stated that he saw the accused persons with the deceased alive on 14.01.2011, the day when the dead body was recovered in the morning. The statement of PW-3 that after seeing the deceased alive in the company of the accused persons he went to Delhi in the next morning is also in contradiction with his statement in cross, when he fixed his presence at the 'Kolhu' of Altaf near the place of recovery of the dead body on the date of recovery itself and stated that he did not go to see the dead body as there was a lot of crowd and kept on sitting in the Kolhu of Altaf. The weight of the testimony of the PW-3 would, however, be analysed at the time of discussion on the evidence of last seen.
49. The last witness is Imrana who is mother of the deceased Talib, examined as PW-5. She stated on oath that on the fateful day at about 05.00 PM while she was coming to her house after defecating, accused Imran was taking away Talib and thereafter the child did not return back and on the next day his dead body was recovered in the jungle.
50. In cross, PW-5 stated that while she was coming back to her house at about 05.00 PM after defecating, her son Talib was playing near her house alongwith some children and accused Imran was standing there and that she saw that the accused Imran was taking away Talib towards the east. As Imran was a neighbor, she did not think it necessary to call back her son Talib and she came to her house. After 30-45 minutes, around 5.45-06.00 PM when she came out and Talib was not there but she did not ask anyone and did not even search for him. She remained in her house for the entire night and only told her mother-in-law about Talib. PW-5 further stated that as soon as search was on, she told her mother-in-law about Talib. Her husband was in 'Kolhu' for work at that time and she did not send any intimation to him. Neither she told anything to any of the members of her family even in the morning. She then stated as no male members came to her house and everyone already knew and as such she did not tell anyone.
51. On further confrontation, PW-5 stated that she did not go to the house of Imran, nor her mother-in-law informed her that the said fact was told to her husband and father-in-law. She did not know as to whether police came to her house and then stated that the police interrogated her after two and a half months and that she did not talk to anyone about the incident.
52. On further confrontation with her statement under Section 161 Cr.P.C, PW-5 stated that she did not know as to why the fact of Imran taking away Talib towards the hill was not mentioned in her statement under Section 161 Cr.P.C. though it was disclosed to the Investigating Officer. The suggestion that she was making a false statement due to the enmity with the family of Imran was denied.
53. Placing the statements of the prosecution witnesses, it is argued by the learned counsel for the appellants that it is a case of absolutely no evidence. The evidence to two witnesses of last seen PW-3 and PW-5 are full of contradictions and both the witnesses could not fix their presence at the place wherefrom they allegedly had seen the deceased alive in the company of the accused persons.
54. As regards PW-3, he stated that he has seen the deceased alive in the company of accused Imran and co-accused Gaffar @ Kana whereas PW-5 stated that the deceased had left in the company of accused Imran and she had seen them leaving but did not tell anyone at home even when the search was on. The statement of PW-3 that he had seen the deceased alive in the company of the accused on the date when child had gone missing and then went to Delhi in the next morning, is demolished with the cross-examination of this witness, itself.
55. As regards PW-1, he is the first informant and a witness of only lodging of the first informant report after recovery of the dead body. No motive could be assigned by PW-1 for committing the crime and the statement with regard to the motive made by him is at variance.
56. PW-2 is a relative of the deceased and being related to the first informant, he made a false statement of having seen four accused persons coming out from the field of Iqbal. The reason given by him to go to the nearby field, i.e. field of Hamizurrahman for defecation was contradicted with his admission in the cross-examination that there existed a toilet in front of his house. Further, it cannot be accepted that PW-2 despite having seen the accused persons with knife in the hands of one of them (Imran) would not raise any doubt despite knowing that his nephew went missing and then that he was killed.
57. It is, thus, argued that in the totality of the facts and circumstances of the present case, the prosecution has not been able to establish the circumstances pointing towards the guilt of the accused persons leaving aside all reasonable hypothesis of them being innocence. The evidence is not conclusive in nature and by tendency it is at variance. No motive at all had been assigned to the accused person. No-one had seen the occurrence. The prosecution case is defective and hence liable to thrown away.
58. Learned AGA, in rebuttal, argued that the first information report was lodged against unknown persons which itself is the proof of the fact that there was no reason of false implication of the accused person. Four accused persons were seen on the date of the incident by PW-2 and their presence nearby the place of recovery of the dead body matches with the time of the incident shown in the first information report and the recovery of the dead body. Two witnesses namely PW-3, Uncle of the deceased and PW-5, mother of the deceased also corroborated the testimony of PW-2 and fixed that they had seen the deceased alive in the company of the accused persons at different points of time, soon after he had gone missing.
59. The time gap between the missing of the child and recovery of his dead body is not long so as to raise any doubt upon the testimony of the prosecution witnesses of last seen. The proximity of time with the consistent evidence of last seen by three witnesses of fact (PW-2, 3 & 5) forms a complete chain with the prompt FIR lodged soon after the recovery of the dead body. The trial court cannot be said to have committed any error of law so as to call for any interference in its judgement.
60. Having heard learned counsels for the parties and perused the record, it is evident that the prosecution story is based entirely on circumstantial evidence and there is no eye witness to the occurrence. As per the statement of the first informant, grandfather of the deceased, the first information of missing of the child while playing with some children outside his house was given by the mother and grandmother of the deceased.
61. PW-5, mother of the deceased was, thus, the first person to report about her missing child. As per the version of PW-5, her son Talib went away with accused Imran on 13.01.2011 at about 05.00 PM while he was playing outside her house alongwith some children. It is stated by PW-5 that she had seen her deceased child leaving the place outside her house in the company of the accused Imran. Though she gave an explanation that she did not call her child back as Imran was a neighbour but her statement that she did not tell anything to any of her family members except her mother-in-law even when the search for the missing child was started is to be taken into consideration while evaluating her evidence of last seen.
62. On confrontation, PW-5 stated that as everyone knew, she did not tell anything and further that no male member of the family came to her house and as such there was no occasion for her to tell anyone that her child had left in the company of Imran. She also admitted that she did not go to the house of Imran to enquire the whereabouts of her child. To the contrary, PW-1 stated that they have started searching for the missing child in the evening of 13.01.2011 itself and an announcement on the loudspeaker was also made in the village at about 05.00 PM. The entire village (almost 200 people) was collected to search for the missing child. PW-1 also stated the mother of the deceased told him that deceased Talib had gone missing while he was playing outside her house with some children and upon asking as to who were they she told that she did not know anyone.
63. In the light of the above statement of PW-1 and 5, grandfather and mother of the deceased, it cannot be accepted that the mother (PW-5) would not name the person who took away her child or with whom the deceased child had left the place outside her house where he was playing with some children. There was no reason for PW-5 not to disclose the identity of the person (Imran) with whom her child had left when an extensive search was on and accused Imran was a neighbour. Further, it is evident from the testimony of PW-5 (mother of the deceased) and PW-8 (the Investigating Officer) that the name of accused Imran was mentioned for the first time by PW-5 in her statement under Section 161 Cr.P.C., recorded on 03.03.2011, after 2-2½ months of the incident, much after the case under Section 364 IPC was registered on 30.01.2011, after arrest of the co-accused Farman who took names of all four accused including Imran and also after the arrest of the co-accused Buddhu and recording of the statement of the co-accused Gaffar.
64. The statement of PW-5 being the first witness of having seen her deceased son leaving her house in the company of accused Imran, therefore, is liable to be disbelieved.
65. Coming to the evidence of PW-3, his oral testimony is full of contradictions and he kept on oscillating and vacillating on vital points during his chief and cross examination. This witnesses claimed himself to be the witness of last seen of the deceased alive in the company of two accused Imran and Gaffar @ Kana while they were going on a motorcycle, on 13.01.2011, the day when the child had gone missing. This witness had been brought by the prosecution as a second witness of last seen having seen the deceased after he left the place outside his house in the company of Imran in continuation with the testimony of the mother (PW-5).
66. According to his version in the examination-in-chief, after having seen the deceased alive in the company of two accused persons, on the next morning i.e. 14.01.2011 at about 06.00 AM he went to Delhi and came to know about the murder of the deceased and the recovery of the dead body through telephone when he was in Delhi. From the statement of this witness in the examination-in-chief, atleast, it can be seen that as per his version, he had seen the deceased in the company of accused persons Imran and Gaffar @ Kana on 13.01.2011 at about 06.00 PM while he was coming to his house alongwith Altaf via Byepass and on the next morning i.e. on 14.01.2011 at about 06.00 AM he left the village to go to Delhi. The information of the murder of the child Talib and recovery of dead body was received by him in Delhi. Whereas in his previous version under Section 161 Cr.P.C., the date of last seen of the deceased alive in the company of the accused had been recorded as 14.01.2011. The Investigating Office when confronted about the statement of PW-3 recorded by him stated that this witness (Mustafa) and another witness Altaf (not produced) told him that they had seen the deceased with the accused on a motorcycle on 14.01.2011 at around 06.30 PM and not at 06.00 PM and it was not told by Mustafa (PW-3) to him that he had gone to Delhi in the next morning.
67. In the examination-in-chief, PW-3 stated that after getting information of the recovery of dead body he came back to the village on the next date and reached the village around afternoon, whereas, in cross, he stated that he went to Delhi about 02-3 days prior to the recovery of the dead body. The version of PW-3 in one breath, i.e. in the examination-in-chief and on the second occasion i.e., in cross, as also his statement under Section 161 Cr.P.C. are completely contradictory to each other. His entire testimony shows that he was completely shaken when confronted and he changed his stand repeatedly throughout his cross-examination. At one point of time, in the cross-examination PW-3 also stated that he kept sitting at the 'Kolhu' of Altaf on the day when the dead body was recovered and did not go to see the dead body and went back to his house and further that he was sitting at the 'Kolhu' of Altaf since morning about ½ hrs before the recovery of the dead body.
68. It is, thus, evident that PW-3 was not sure about his presence in the village either on 13.01.2011 or 14.01.2011, the date when the deceased had gone missing and when his dead body was found in the field. This witness is found wholly unreliable and his testimony is rejected as such.
69. Now the only witness left is PW-2, who had also been projected as the third witness of last seen, who stated that he had seen four accused persons together in the morning on 14.01.2011 coming out of the field of Iqbal while he and Shaqeel went to the field of Hamizurrahman to defecate. PW-2 also stated that he had also seen the knife in the hands of the accused Imran. PW-2 is also the witness of recovery of knife, the murder weapon at the instance of Imran.
70. Testing the testimony of PW-2, we may note that, in cross, he admitted that in his previous statement, the reason for going to the field, i.e. to defecate was not mentioned and further he admitted that there existed a toilet (latterine) in front of his house. The Investigating Officer (PW-8) was also confronted on this issue and he had categorically stated that Gaffar (PW-2) did not tell him that he and Shaqeel went to the field of Hafizurrahman to defecate on the day of recovery of the dead body, rather they told that they went to the field of Iqbal where dead body was recovered.
71. PW-2 also admitted that there was a standing crop of wheat in the field of Hamizurrahman where they allegedly went to defecate. He also admitted that he did not raise any suspicion upon the accused persons while search for the child was going on. PW-2 also did not mention the time when he went to defecate in the field of Hamizurrahman and left this fact for the guess or imagination of the Court.
72. Further there is also a doubt about the place of the recovery of the dead body as PW-1 stated that when the Investigating Officer came, the dead body was already removed from the sugarcane field of Iqbal and that it was in the field of Jhanda. In the inquest, the body was shown to have been lying in the empty field of Ummed son of Jhanda, whereas in the site plan the place where the inquest of the dead body of Talib was conducted has been shown as 'XC' which is mentioned therein as the empty field of Ummed son of Jhanda. The Investigating Officer though has shown the place of recovery of the dead body as 'XA', the sugarcane field of Iqbal but the said information was given to him by the first informant. He further mentioned that blood stained earth was recovered from the said place itself but from the FSL report, it could not be ascertained that the blood found in the recovered blood stained earth was human blood as blood was disintegrated. The statement of the Investigating Officer in the site plan about the place of recovery of the dead body (shown as XA), not based on his observation but the information passed on by PW-1 the first informant at whose instance the site plan was prepared, would be a statement which would fall under Section 161 Cr.P.C. and cannot be relied being hit by Section 162 Cr.P.C. Further, the recovery of blood stained earth allegedly from place 'XA', without the proof of the blood found on the earth being human blood is of no help to the prosecution.
73. Thus, from the careful reading of the entire testimony of PW-2, his version that he had seen four accused persons near the place of the recovery of the dead body on 14.01.2011 before it was allegedly recovered in the field of Iqbal is of no help to the prosecution. Assuming without admitting, even if the evidence of PW-2 is accepted as trustworthy, it would not take the prosecution case any further, in as much as, the testimony of PW-2 cannot kept in the category of evidence of last seen of the deceased alive in the company of the accused persons. At the most, his version could raise a suspicion about the involvement of the accused persons in the commission of the crime for they were seen together near the place of recovery of the dead body sometime soon before its recovery. As evidence of last seen brought by the prosecution in the shape of version of PW-3 and PW-5 has been held unbelievable, the version of PW-2 is of no consequence. His testimony cannot provide any link in the chain of circumstances and no chain could be formed till the time this witness had seen the accused persons together.
74. Further, no motive at all had been assigned to the accused persons to commit the crime either by PW-1, the grandfather or PW-5, the mother of the deceased. As per the version of PW-5, mother of the deceased, she had no suspicion about her child going in the company of accused Imran as he was a neighbour. As per the statement of PW-1, there was no enmity of the complainant with the accused persons.
75. The motive assigned by PW-2 to accused due to greed of money is only his own concoction. The absence of motive in a case depending entirely on the circumstantial evidence is a factor that weigh in favour of the accused, as "often forms the fulcrum of the prosecution story".
Reference be made to Babu Vs. State of Kerala1, Kulvinder Singh & another Vs. State of Haryana2, Dandu Jaggaraju Vs. State of A.P.3, Nandu Singh Vs. State of Madhya Pradesh4.
76. On a careful analysis of the overall fact situation of the case, we are of the considered opinion that the chain of circumstantial evidence relied upon by the prosecution to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the material on record do raise a needle of suspicion towards the accused persons, the prosecution, however, has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof. (Reference Nathiya vs State Tr.Insp.Of Police,Vellore5).
77. As noted in Nathiya (supra), the classic enunciation of the law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable to the decision of this Court in Sharad Birdhichand Sarda vs. State of Maharashtra6. The relevant paragraph is are quoted as under:-
"The classic enunciation of the law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable to the decision of this Court in Sharad Birdhichand Sarda vs. State of Maharashtra. The relevant excerpts from paragraph 153 of the decision is assuredly apposite:
"153.(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused...they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
* * * (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
78. The Apex Court in Nathiya (supra), while relying upon two other decisions in Sujit Biswas vs. State of Assam7 and Raja @ Rajendra vs. State of Haryaya8; has noted that it has been propounded therein that in scrutinizing the circumstantial evidence, a court is required to evaluate it to ensure that the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. It was underlined therein that whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. That in judging the culpability of the accused, the circumstances adduced when collectively considered, must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime alleged. That the circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused, was emphatically propounded.
79. Tested on the touchstone of the above judicially evolved parameters, defining the quality and content of the circumstantial evidence essential to bring home the guilt of an accused person on a criminal charge, as noted in Nathiya (supra), we arrived at an irresistible conclusion that the prosecution, in the instant case, has failed to meet the standards, i.e. to establish the circumstances of a conclusive nature consistent with only the hypothesis of the guilt of the accused and inconsistent with all reasonable hypothesis of their innocence.
80. We rather find that the prosecution had utterly failed to establish that the deceased child had left his house in the company of one of the accused persons namely Imran. There is no evidence of last seen of the deceased alive in the company of the accused persons (four in number) in or around his house in between the time he had gone missing and his dead body was found. No burden, as such, could be laid upon the accused appellants to explain the circumstances in which the dead body of the child was found in an open place.
82. It is settled that the evidence of last seen is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The last seen theory holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. If the accused then fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provide an additional link in the chain of circumstances proved against him. The last seen theory, thus, is based on Section 106 of the Evidence Act. However, Section 106 does not shift the burden of proof in a criminal trial which is always upon the prosecution. The burden would shift upon the accused only when the prosecution has been able to discharge its burden of proof of the circumstances establishing implication of the accused in the crime.
83. As in the instant case, the prosecution has not been able to discharge its burden, the onus to prove the circumstances beyond the place of missing of the child would not shift upon the accused persons and the accused persons are not liable to offer any explanation. There is absolutely no evidence of commission of the offence under Section 364 IPC as also for conviction of the appellants under Section 302 read Section 34 IPC.
84. In view of the above discussion, having reached at an irresistible conclusion that the prosecution has utterly failed to establish a complete chain of circumstance to exclude every hypothesis other than the guilt of the appellants, we find that the conviction of the appellants under Section 364, 302 IPC read with Section 34 & 201 IPC cannot be sustained in view of the inherent flaws in the prosecution case. The conviction of the appellants under Section 201 IPC would automatically fail. The recovery of the murder weapon at the instance of accused Imran leading to his conviction under Section 25/4 of the Arms Act is liable to discarded for the inherent infirmities and improbabilities in the prosecution case.
85. In the totality of the facts and circumstances of the prosecution case, we find that the conviction and sentence of the appellants for the alleged crime with regard to the kidnapping and murder of the child, deceased Talib could not be proved by the prosecution beyond all reasonable doubt. The benefit of doubt, therefore, is to go in favour of the accused persons-appellants herein.
86. Accordingly, the judgement and order dated 03.11.2014 passed by the Additional Sessions Judge, Court No.15, Muzaffar Nagar in S.T. No.842 of 2011 arising out of Case Crime No.17 of 2011 under Section 364, 302, 201 IPC, P.S. Thana Bhawan , District Muzaffar Nagar connected with S.T. No.843 of 2011 arising out of Case Crime No.214 of 2011 under Section 25/4 of Arms Act, Police Station Thana Bhawan, District Muzzafar Nagar, is set aside.
87. The accused-appellants are entitled to be acquitted of all the offences of which they were charged. Their conviction is liable to be set aside.
88. The appeals are hereby allowed.
89. The appellant Budhu @ Furkan is on bail. His sureties shall stand discharged and bail bonds is cancelled.
90. The appellants Imran and Farman are in jail. They shall be released forthwith, in case they are not needed in any case.
91. The office is directed to send back the lower court record along with a certified copy of this judgment for information and necessary action.
92. The compliance report be submitted to this Court through the Registrar General, High Court, Allahabad.
(Vikas Kunvar Srivastav,J.) (Sunita Agarwal, J.)
Order date:- 30.05.2022
Himanshu