Uttarakhand High Court
Athar And Another vs State Of Uttarakhand on 28 July, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.08 of 2012
Athar & another ....... Appellants
Versus
State of Uttarakhand ...... Respondent
Mr. Navneet Kaushik, Advocate, for the appellants.
Mr. Amit Bhatt, Dy. Adv. General, for the State.
Mr. Syed Nadim, Advocate, for the complainant.
Dated: July 28, 2017
Coram: Hon'ble Rajiv Sharma , J.
Hon'ble Sharad Kumar Sharma , J.
Per: Hon. Rajiv Sharma, J.
This appeal is directed against the judgment and order dated 24.12.2011 rendered by learned Sixth Additional Sessions Judge, Haridwar in S.T. No.80/1999, whereby the appellants were charged with and tried for the offences punishable under Sections 302, 201 and 364 IPC. The Trial Court convicted both the appellants u/s 302 IPC and sentenced each of them to undergo imprisonment for life with fine of Rs.10,000/- each and in default of payment of fine, to undergo one year's additional simple imprisonment. Both the appellants were further convicted u/s 364 IPC and sentenced to undergo seven years' R.I. with fine of Rs.5,000/- each and in default of payment of fine, to undergo six months' additional simple imprisonment. Both the appellants were further convicted by the Trial Court u/s 201 IPC and sentenced to undergo three years' rigorous imprisonment with fine of Rs.3,000/- each and in default of payment of fine, to undergo three months' additional 2 simple imprisonment. All the sentences were directed to run concurrently.
Case of the prosecution in a nutshell is that PW2 Mohd. Yaseen moved a complaint on 20.3.1996, stating therein, that he was the resident of Village Sultanpur. He was the owner of a flour-mill. The flour- mill was run by him and his son. His son was keeping the accounts. The appellants used to come at his flour- mill in his absence. He forewarned his son about the activities of the appellants. On 26.1.1996 at about 8 AM, the appellants came to his flour-mill. They entered into a conversation with his son. The appellants asked his permission to take away his son. He refused. However, the appellants persuaded him to let his son go with them. At that time, Abdul Salam, Hasrat and Syed were present in his flour-mill. His son Mohd. Adil did not come back thereafter. He has raised suspicion that his son was killed by the appellants. Copies of the complaint were sent to the District Magistrate, Haridwar and D.I.G. Police, Meerut Range.
After moving the aforesaid complaint, the complaint moved a missing report on 9.4.1996.
Thereafter, on 14.5.1996, complainant Yaseen moved another application addressed to Dy. S.P., Haridwar with the same averments. On that application, Dy. S.P., Laksar directed the S.H.O. Laksar to register the case, in compliance whereof, the F.I.R. was registered on 19.5.1996 at 8 AM against the appellants.
The matter was investigated and Challan was put up after completing all the codal formalities.
3Prosecution has examined as many as eleven witnesses in support of its case.
Appellants were also examined u/s 313 Cr.P.C. They denied the case of prosecution.
Appellants were convicted and sentenced by the Trial Court, as noticed hereinabove. Hence this appeal.
Learned Counsel, appearing on behalf of the appellants, has vehemently argued that the prosecution has failed to prove its case against the appellants beyond reasonable doubt.
Learned Dy. Advocate General for the State as well as learned Counsel for the complainant, have supported the judgment dated 24.12.2011.
We have heard learned counsel for the parties and perused the entire material available on record.
PW1 Habibur Rehman has testified that eight years back, at 8 AM, he had gone to lift the flour from the flour-mill of Yaseen. Appellants were present. They were insisting to take Aadil, son of Yaseen with them. In his cross-examination, he has deposed that Aadil was 17-18 years old. He was wearing a T-shirt and trouser.
PW2 Mohd. Yaseen is the father of the deceased. He deposed that on 26.1.1996, appellants came to his flour-mill. They were insisting to take his son. Appellants have taken away the deceased Aadil in presence of Habibur Rehman and Hasrat. After few days, appellant Munna came back. He made enquiry from Munna about his son. Munna told that his son was with 4 Athar. He had gone to lodge the FIR on 20.3.1996. On 9.4.1996, he lodged the missing report. He also deposed that he met with a police constable at Roorkee who informed him that one body was recovered by Bijnaur Police. Thereafter, he went to the police station where he identified the clothes of his son. According to him, his son was Rasuliya.
PW3 Sayed deposed that on 26.1.1996 at 8 AM, he went to drop his children at school. When he reached at Bus Stand, Sultanpur, he saw that Aadil, Athar and Munna were standing. Thereafter, Aadil did not come back.
PW4 Manohar Singh has seen the skeleton in his field. One Jerrycan was lying on the spot. Police reached the spot and the inquest report was prepared.
PW5 Mohd. Yakub deposed that he did not know the appellants. Appellants have never visited his house. He was declared hostile. In his cross- examination, when he was confronted with his statement recorded u/s 161 Cr.P.C., he denied that he has given any such statement.
PW6 Dr. V.K. Mishra has conducted the post- mortem examination. According to him, the body was brought by the police on 30.10.1996 at 2:30 PM. The age of the deceased was about 25 years. The private part of the deceased was not circumcised. According to him, the body appeared to be of a Hindu. The body was decomposed. It was eaten away by the wild animals. According to him, the cause of death was shock and hemorrhage as a result of ante-mortem injuries.
5PW7 Ranvir Singh has deposed that he prepared the inquest report of the dead body.
PW8 S.I. Ram Prakash Yadav is a formal witness.
PW9 S.I. Inder Singh has deposed that he had gone with the father of deceased at P.S. Kotwali Bijnaur on 24.7.1999 to get the clothes of deceased identified.
PW11 Dr. Yogesh Chandra Sharma deposed that he was working as a Medical Officer for last 31-32 years. There is no reference of circumcision in the medical history. The circumcision is also done due to some disease. According to him, the body starts decomposing after 36 hours.
According to the prosecution, the appellants have taken way the deceased from the flour-mill on 26.1.1996. When he did not come back, his father made enquiry from the appellant Munna. Appellant Munna told that he was in the company of appellant Athar. The initial application was given by the complainant on 20.3.1996 and thereafter, on 9.4.1996, the missing report was filed. Case of the prosecution is that PW2 Mohd. Yaseen was informed by a police constable that a dead body of a young boy was recovered by the Bijnaur Police. He went to Bijnaur and identified the body.
According to the complaint moved u/s 364 Cr.P.C. (Ex.Ka-1) before the Superintendent of Police, Haridwar, the appellants took away the deceased from the flour-mill. PW2 Mohd. Yaseen was present at the flour-mill. According to him, Abdul Salam, Hasrat and Sayed were present at the flour-mill. However, when he 6 lodged the missing report on 9.4.1996 (Ex.Ka-4), he deposed that he had gone out and when he came back, he was told by Hashrab and Abdul Salam that his son was taken away by the appellants. He made enquiry from appellant Munna. Appellant Munna informed that his son was with appellant Athar. There is variance in the contents of reports filed by PW2 Mohd. Yaseen. In one report, he was present at the flour-mill but in the missing report, he says that he had gone out and he was told by Hashrab and Abdul Salam that his son had gone with the appellants. In case PW2 Mohd. Yaseen knew that appellants have taken away his son on 26.1.1996, he should have lodged the FIR immediately instead of waiting for almost three months.
PW1 Habibur Rehman has deposed that he has seen the deceased in the company of the appellants. According to PW2 Mohd. Yaseen, when the appellants came at his flour-mill, they sought his permission to take his son. According to the contents of report dated 20.3.1996, PW3 Sayed was also present at the flour-mill. However, PW3 Sayed has admitted in his cross- examination that he has not gone to Yaseen's flour-mill. PW2 Mohd. Yaseen has further deposed that he met a constable at Roorkee who told him about the recovery of dead body by P.S. Bijnaur. PW2 Mohd. Yaseen in his cross-examination has admitted that he did not have any acquaintance with that constable and nor that constable had any acquaintance with him. Why a man without knowing PW2 would tell him that a dead body was discovered by Bijnaur Police.
Now, as far as motive is concerned, PW2 Mohd. Yaseen has categorically admitted in his cross-
7examination that there was no enmity between him and the appellants. But his son had enmity with the appellants. However, he has not stated this fact to the S.O. PW3 Saeed, in his cross-examination, has admitted that he saw the deceased only in the company of appellants. However, he did not know where they had gone thereafter. The case of the prosecution is that the deceased was aged about 17-18 years but as per PW6 Dr. V.K. Mishra, who conducted the post-mortem examination, the body which was brought before him to conduct the post-mortem examination was about 25 years of age. The Court can take judicial notice of the fact that in the Muslims, the circumcision is performed, however, when the dead body recovered, there was no circumcision. The body was decomposed. According to PW6 Dr. V.K. Mishra, it seemed to be the body of a Hindu. However, the prosecution has tried to fill up this gap by producing PW11 Dr. Yogesh Chand Sharma. PW11 Dr. Sharma has deposed that the circumcision is also performed for curing some disease. Thus, there is also a doubt with regard to the identification of dead body, more particularly, when PW2 Yaseen never knew the constable who met him at Roorkee. The constable who met him at Roorkee was never produced as a witness.
The case is based on circumstantial evidence. In order to prove the case based on
circumstantial evidence, the chain should be complete. All the facts must point out exclusively towards the guilt of the accused. The motive is also a very important factor to be taken into consideration when the case is 8 based on circumstantial evidence. In the present case, the chain is not complete. There is variance in the reports recorded on 20.3.1996 and 9.4.1996. In earlier report, PW2 Yaseen was present at the flour-mill but in the report lodged on 9.4.1996, he has stated that he had gone out of station. The recovery of dead body is also doubtful. PW2 Yaseen has never mentioned in his report that there was any enmity of the appellants with the deceased. According to the prosecution, the deceased was aged about 17-18 years but as per the post-mortem examination, the body of a 25 years' boy was brought for post-mortem examination. The boy had gone missing on 26.1.1996. The earlier report was submitted on 20.3.1996 followed by the missing report dated 9.4.1996. The inordinate delay in lodging the report has not been explained by the prosecution when PW2 Yaseen knew the identity of the accused. Though, PW2 Yaseen has deposed that one of the appellants asked for money but he has not stated so in his earlier report.
Their Lordships of the Hon'ble Supreme Court in 1984 Vol 4 S.C.C. 116 in the case of Sharad Birdichand Sarda Vs. State of Maharashtra have laid down the following conditions, which the prosecution must satisfy, in a case based on circumstantial evidence.
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be"
established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra19 where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] 9 "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, 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, (4) they should exclude every possible hypothesis except the one to be proved, and (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."
Their Lordships of the Hon'ble Supreme Court in (2012) 10 Supreme Court Cases 464, in the case of Munish Mubar Vs. State of Haryana, have held that in a case of circumstantial evidence, circumstances must be fully established and all facts so established, must be consistent with hypothesis regarding guilt of accused. It is further held that in the case of circumstantial evidence, motive assumes great significance and importance. Their Lordships have held as under:-
"28. Undoubtedly, in a case of circumstantial evidence, all the circumstances must be fully established and all the facts so established, must be consistent with the hypothesis regarding the guilt of the accused. The circumstances so established should exclude every other possible hypothesis except the one sought to be proved. The circumstances must be conclusive in nature. The circumstantial evidence is a close companion of factual matrix, creating a fine network through which there can be no escape for the accused, primarily because the said facts, when taken as a whole, do not permit us to arrive at any other inference but one indicating the guilt of the accused."
Their Lordships of the Hon'ble Supreme Court in (2013) 12 Supreme Court Cases 551 in the case of Rishipal Vs. State of Uttarakhand have held that while motive does not have a major role to play in cases based on eyewitness account of incident, it assumes importance in cases that rest entirely on circumstantial evidence. Their Lordships have held as under:-
10"15. The second aspect to which we must straightaway refer is the absence of any motive for the appellant to commit the alleged murder of Abdul Mabood. It is not the case of the prosecution that there existed any enmity between Abdul Mabood and the appellant nor is there any evidence to prove any such enmity. All that was suggested by the learned counsel appearing for the State was that the appellant got rid of Abdul Mabood by killing him because he intended to take away the car which the complainant Dr Mohd. Alam had given to him. That argument has not impressed us. If the motive behind the alleged murder was to somehow take away the car, it was not necessary for the appellant to kill the deceased for the car could be taken away even without physically harming Abdul Mabood. It was not as though Abdul Mabood was driving the car and was in control thereof so that without removing him from the scene it was difficult for the appellant to succeed in his design. The prosecution case on the contrary is that the appellant had induced the complainant to part with the car and a sum of Rs 15,000. The appellant has been rightly convicted for that fraudulent act which conviction we have affirmed. Such being the position, the car was already in the possession and control of the appellant and all that he was required to do was to drop Abdul Mabood at any place en route to take away the car which he had ample opportunity to do during all the time the two were together while visiting different places. Suffice it to say that the motive for the alleged murder is as weak as it sounds illogical to us. It is fairly well settled that while motive does not have a major role to play in cases based on eyewitness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. (See Sukhram v. State of Maharashtra, Sunil Clifford Daniel v. State of Punjab and Pannayar v. State of T.N.) Absence of strong motive in the present case, therefore, is something that cannot be lightly brushed aside."
Their Lordships of the Hon'ble Supreme Court in (2015) 12 Supreme Court Cases 644 in the case of Vijay Shankar Vs. State of Haryana have summarized the principles of circumstantial evidence as under:-
"8. There is no eyewitness to the occurrence and the entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence vide Sharad Birdhichand Sarda v. State of Maharashtra. The same view was reiterated in Bablu v. State of Rajasthan."
In view of the definite law laid down by the Hon. Apex Court, we find that the chain of the circumstances linking the appellants with the crime is incomplete. The prosecution has miserably failed to 11 prove its case against the appellants beyond reasonable doubt.
Accordingly, the appeal is allowed. Judgment, under challenge, is set aside. Appellants are acquitted of the charges framed against them. They are already on bail. They need not to surrender. Their bail bonds and sureties are discharged.
Let a copy of this judgment along with the LCR be transmitted to the Court for information.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) Rdang