Allahabad High Court
Shaudan vs State Of U.P. on 11 December, 2013
Bench: Amar Saran, Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 46 Case :- CAPITAL CASES No. - 953 of 2013 Appellant :- Shaudan Respondent :- State Of U.P. Counsel for Appellant :- Sushil Kumar Pandey,Narayan Singh,Satyendra Narayan Singh Counsel for Respondent :- Govt. Advocate ALONG WITH Case :- CRIMINAL APPEAL No. - 858 of 2013 Appellant :- Suleman Respondent :- State Of U.P. Counsel for Appellant :- Pankaj Bharti,M.J.Akhtar Counsel for Respondent :- Govt. Advocate AND Reference No. 5 of 2013 Hon'ble Amar Saran,J.
Hon'ble Mrs. Sunita Agarwal,J.
(Delivered by Hon'ble Amar Saran, J) An FIR was registered at case crime No. 148 of 2000, under section 302, 201 I.P.C. at P.S. Bhopa on 27.6.2000 at 8.30 A.M by the informant Mohd. Sainul son of Mohd. Ishak alleging that the informant's brother Saimoon, co-villager Musharraf and Musharraf's brother Fakhrul and Javed and the co-villagers Mangta and Ikbal used to trade in hay (bhoosa) and had gone to Dhariwla, P.S. Kakrauli on 26.6.2000 for purchasing hay. Javed, Mangta, Ikbal and Fakhrul returned to their village Nagla Bujurg on 26.6.2000 at 3.00 P.M along with a trolley of hay. Saimun and Musharraf went on a scooter to Kasampur Khaula, P.S. Meerapur looking for more hay. When they did not return in the night, the informant thought that they may have spent the night with some relations. In the morning of 27.6.2000 at about 8.00 A.M, Saleem son of Fakeera and Irshad son of Hamid approached them and informed them that when they had gone to their sugarcane fields they had found Saimun lying in a drain near the sugarcane field of Saleem and the dead bodies of Musharraf and Shamshad ( resident of village Jatwara) lying on the chak road near the sugarcane field of Sarfaraz. There were marks of injuries on the three corpses and the pajamas of all the three deceased were tied on their necks and the hands of Samshad and Musharraf were tied with their "Tahmats". No one was named as an accused in the said FIR.
On investigation, the appellants Shaudan and Suleman were implicated in this case. Three other accused persons Sayyad, Zulfekar and Munfait were nominated subsequently in this case but they absconded. Shaudan, Zulfikar and Sayyad were arrayed as accused in S.T. No. 20 of 2003 under sections 364, 302, 201, 404 I.P.C and also in S.T. No. 21 of 2000, under section 25/4 of Arms Act.
Suleman who absconded and surrendered later was charged under sections 302/149 and 201 I.P.C and faced trial in S.T. No. 256 of 2011.
The Additional District and Sessions Judge (Court no.9), Muzaffarnagar clubbed the three trials and by the judgment and order dated 21.2.2013, the appellant Shaudan was awarded death sentence under section 302/149 I.P.C together with a fine of Rs. 50,000/. He was also convicted and sentenced to undergo imprisonment for life under section 364 I.P.C together with a fine of Rs. 50,000/. The appellant Shaudan was also awarded three years RI with a fine of Rs. 5000/ under section 404 I.P.C. He was to undergo six months additional imprisonment for not depositing the fine. Under section 201, he was to undergo five years R.I., with a fine of Rs. 5000/ and on failure to deposit the fine, he was to undergo one year additional imprisonment. Under section 4/25 of Arms Act, he was awarded six months RI with a fine of Rs. 2000/ and in default of payment of fine, he was to undergo one month additional imprisonment. The sentences were to run concurrently.
The appellant Suleman was awarded imprisonment for life under section 302/149 I.P.C together with a fine of Rs. 5000/.
A Criminal Capital Appeal No. 953 of 2013 has been preferred by the appellant Shaudan, who is represented by Sri S.K. Pandey and Sri S.N. Singh. Criminal Appeal No. 858 of 2013 has been preferred by appellant Suleman, represented by Sri Pankaj Bharti, Advocate.
Sri Akhilesh Singh, learned Government Advocate, assisted by Sri Anand Tiwari appeared for the State.
The informant Mohd. Sainul has been examined as PW-1 in S.T. No. 20 of 2003, State Vs. Shaudan and as PW-4 in S.T. No. 256 of 2011 (State Vs. Suleman). He reiterated his FIR version in both the Sessions trials, and admitted in his cross examination that he had not mentioned the names of any of the accused persons in his FIR and that he was not an eye witness.
Dr. Ashok Kumar Tyagi has been examined as PW-7 in S.T. No. 20 of 2003. He has conducted the post-mortem examination of Saimun aged 32 years on 27.6.2000 at District Hospital, Muzaffarnagar. He found 13 incised wounds on the cheek, chest and and head of the deceased. The cause of death was due to shock and hemorrhage as a result of the ante-mortem injuries which were about one day old at the time of autopsy.
On 27.6.2000 at 8.05 P.M, he also conducted the autopsy on the dead body of Samshad aged 30 years. He found six incised wounds and one contusion on the face, chest and ankle and abdomen. He opined that the deceased had died one day earlier due to shock and hemorrhage as result of the ante-mortem injuries.
On 27.6.2000 at 8.30 P.M, he conducted the post-mortem on the dead body of Musharraf aged 29 years. He found 7 incised wounds on the chest and trunk regions of this deceased. In his opinion, the deceased had died one day earlier due to shock and hemorrhage as a result of the ante-mortem injuries.
Witnesses of last seen.
PW-4 Rustam has given evidence of last seen in S.T. No. 20 of 2003. He deposed that on the date of incident, he was going from Muzaffarnagar to his village Nagla Bujurg at about 8.00 P.M along with Shrawan and Rahmatulla. However, he disclaims having met the appellant Shaudan on the way. In the morning he learnt that Saimun, Musharraf and Shamshad have been done to death and their corpses were lying in the jungle. He admitted having given a statement under section 164 Cr.P.C to a Magistrate but he claims to have mentioned the names of Munfait, Shaudan, Zulfikar and Sayyad in the statement on account of the threats of the police officer. So far as the affidavit dated 10.4.2001 submitted to the S.S.P, Muzaffarnagar was concerned, he stated that he did not know the contents of the said affidavit and that same was not read out to him by the advocate. He was an illiterate person and could not read himself but he admitted that the the affidavit contained his photograph and thumb impression. He was declared hostile. In his statement given as PW-2 in S.T. No. 256 of 2011, he has deposed that he was 85 years in age. The incident had taken place 11 years earlier. Saimun and Musharraf and one other person belonging to another village had been murdered in the night in the jungle. He had given the affidavit dated 10.4.2001 to the S.S.P, Muzaffarnagar. He admitted his photograph and signature on the affidavit. He further stated that on 26.6.2000 at 8.00 P.M, he had got down from the Bus at Kasampur Chauraha and when he reached near the fields of the Jatavs in his village, he saw some persons looking like Zulfikar, Sayyad and Munfait. He however, named the appellant Suleman on the dictation of the police. He claims to have given his statement to the Magistrate under section 164 Cr.P.C on 24.5.2001 which bore his thumb impression. In his cross-examination by the defence, he admitted that he was 85 years in age and could see very little with his eyes. He was not able to see in the night and even in the day time his vision was weak. He was told by Shrawan and Rahmatulla that there was one person who resembled Suleman. He did not know Suleman, who was a resident of Mega Kheri as he had never met him before. He had given the affidavit on the dictation of an Advocate. A photograph had been taken from him. The police without reading it out had made him affix his thumb impression on the affidavit. He claims to have given the statement to the Magistrate at the instance of the police. He did not know who had committed the murder.
PW-3 Shrawan was another witness of last seen in S.T. No. 3 of 2003, who appeared as PW-6 in S.T. No. 256 of 2011. He deposed that about ten years earlier at about 8.00 P.M, he along with Rahmatullah and Rustam had dismounted the Bus at Kasampur Chauraha and were going on foot towards their village Nagla Bujurg. When they went 1 Km ahead, near the fields of the Jatavs of Regta village, they saw Munfait, Sayyad alias Andha, residents of his village, Zulfikar, resident of Kasauli and Suleman resident of Megha Kheri roaming around. He also saw someone looking like Shaudan from some distance. The next day he learnt that Ishak, Musharraf and Shamshad had been murdered. He had given an affidavit to the S.S.P. on 10.4.2001 which he affirmed in his cross examination. He stated that he did not recognize the appellant Shaudan properly and was unable to say with certainty that the appellant was present there. He had seen a person looking like Shaudan from a distance of 60-65 meters. The affidavit was prepared in the Kutchery by an advocate and the same was not read out to him. He denied the contents of the affidavit. He denied having given any statement under section 161 Cr.P.C to the police. He deposed in a similar manner to PW-6 in S.T. No. 256 of 2011, where he again did not support the prosecution version in his cross examination. The prosecution also declared this witness hostile and have cross examined him.
Irshad has been examined as PW-5 in S.T. No. 256 of 2011 but he does not appear to have been examined in S.T. No. 20 of 2003. He claims to know Suleman, resident of Megha Kheri. On 26.6.2000 at about 9.00 P.M, he claims to be going from Kasampur to his village Nagla Bujurg along with Riyasu and Kara. When they proceeded about 1 km ahead, near the fields of the Jatavs, they saw Munfait, Sayyad, Suleman, Zulfikar and Shaudan standing there. The deceased Saimun, Musharraf and Shamsad were also standing there and were talking. When he asked the accused persons to accompany them, they answered that they would come after easing themselves. Thereafter, the witnesses along with others reached their village. On the next morning on 27.6.2000, there was discussion that the corpses of Saimun, Musharraf and Shamsad were lying in the jungle. He was convinced that the murders had been committed by Munfait, Sayyad, Suleman, Zulfikar and Shaudan. He admitted having given a statement to the Magistrate under section 164 Cr.P.C.
In his cross examination however he denies having given any such statement under section 161 Cr.P.C statement to the police. He claimed to have given the statement to the Magistrate on 24.5.2001 on the instigation of the police officer and that he had told this fact to the Magistrate. He admitted in his cross examination that on 26.6.2000 at 8.00 P.M, that he had not seen Munfait, Sayyad, Suleman, Zulfikar and Shaudan standing at the Kasampur Chauraha. He denied having disclosed the appellant Suleman and Shaudan's names to the Magistrate. He denied having turned hostile out of fear.
Gayur was also to be produced as a witness of last seen as PW-9 in S.T. No. 20 of 2003. In his evidence although he claimed to know the appellants Suleman and Shaudan but he deposed that on 26.6.2000 he was doing election work with his cousin Azad and he had not gone to village Nagla Bujurg in the night nor had he seen Irfan, Riyasu, Anwar, Khalil, Moharram and Teora standing in the jungle of Nagla Bujurg. He had also not seen three deceased. On the next day, he had learnt that three deceased had been murdered and their corpses were lying in the jungle. He had also reached the spot at that time.
This witness was declared hostile by the A.D.G.C and was cross examined. He denied having given any such statement under section 161 Cr.P.C to the police. He affirmed that he was involved in election work with his maternal uncle's son and that he had not seen the accused or the deceased persons standing at the time alleged.
The witnesses of extra-judicial confession.
Dharamveer has been examined as PW-6 in S.T. No. 20 of 2003 and as PW-1 in S.T. No. 256 of 2011 as a witness of extra judicial confession. He deposed in S.T. No. 20 of 2003 on 21.5.2010 that 10 years earlier, he was sitting in his house on 22.7.2000 at about 10.00 A.M, along with Ahsan. At that time, Munfait along with one other person (whose names he did not know) but was later on informed to be one Suleman resident of Megha Kheri appeared before him and disclosed that he along with Shaudan, Sayyad, Munfait and Zulfikar had murdered Saimun, Musharraf and Samshad in the night of 26.6.2000. They realized their mistake and as he used to sit with the police, he could save them. Munfait has however, not disclosed the name of Shaudan. He had given an affidavit to the S.S.P, Muzaffarnagar on 10.4.2001 which bore his photograph and signature but he denied disclosing Shaudan's names and was surprised how the typist had written the name of Shaudan. The police has produced him before the Magistrate on 24.5.2001, when he gave his statement under section 164 Cr.P.C which was sealed. He admitted giving the statement but denied the role of Shaudan in it. He was then declared hostile by the A.D.G.C. He denied giving any statement under section 161 Cr.P.C to the police. The affidavit to the S.S.P was not read out to him by the advocate or notary. He denied excluding the names of Shaudan in Court because of fear. He claims to have told the Magistrate that he had given his 164 Cr.P.C statement on the threats of the police. He claims to have given the names of accused persons because the police threatened to falsely implicate him in a case and to send him to jail, unless he gave out the names of the accused.
PW-6 Dharamveer has also appeared as PW-1 in S.T. No. 256 of 2011. He again in a similar fashion, in his cross examination has disclaimed knowing Suleman from before, but he claims that Munfait had told him Suleman's name. He had never seen Suleman before. As it was 10-11 P.M in the night, hence he could not properly identify the person, who had accompanied Munfait. He had seen Suleman for the first time in court on 30.6.2011. Suleman had not been put up for test identification before him. He again claims that he only signed the affidavit which was not read out to him. He had never been the Pradhan or Surpanch or even a member of the village committee and had enjoyed no political post though he used to meet the police when they visited in the village. He had given the statement to the Magistrate u/s 164 Cr.P.C at the instance of the police. He denied giving any 161 Cr.P.C statement to the police.
Ahsan has appeared as PW-5 in S.T. No. 20 of 2003. He deposed that on 22.7.2000 at 10. P.M when he was sitting in the house of Dharamveer, Munfait along with another person had come there and said that he along with Sayyad, Zulfikar and Suleman had murdered Saimun, Musharraf and Shamsad. He had however, denied the name of the appellant Shaudan in committing the murder. Munfait had told him that as he used to sit with the police, he could help them. He had given an affidavit to the S.S.P including Shaudan's name in it. He stated that the police had taken him before the Magistrate, where he gave his statement under section 164 Cr.P.C because of the threat of the police, in which he had also nominated the appellant Shaudan. After the A.D.G.C declared him hostile, in his cross examination he denied having voluntarily given the name of Shaudan in his affidavit or having failed to support the prosecution case on account of the threat of the police.
Hasan Ali was examined as PW-12 in both S.T. No. 20 of 2003 and S.T. No. 256 of 2011 on 10.5.2012 because at that time the two trials were clubbed together.
Riyas Uddin has been examined as PW-10 in S.T. No. 20 of 2003. He again claims to know the two appellant Suleman and Shaudan, although in his examination-in-chief he admitted having giving the statement under section 164 Cr.P.C to the Magistrate on 24.5.2001. He admitted returning in the night of 26.6.2000 at 9.00 P.M by the last Bus to Kasampur and dismounting the bus at Kasampur to go to his village Nagla Bujurg. Near the fields of the Jatavs , he had seen Munfait, Shaudan, Zulfikar, Suleman and Sayyad and the deceased Saimun, Shamshad and Musharraf standing at some distance. Irshad and Kara were also present with him. When he asked them, why they were not coming home, Munfait and others had replied that they would come after easing themselves and were talking about bhoosa. He had then returned home and had learnt the next morning that three corpses were lying in the jungle. He affirmed giving statements to the Magistrate and the police.
However, in his cross examination, he disclaimed knowing Suleman or the appellant Shaudan or of having seen them before. He stated that Irshad and Munfait had told him their names. As it was 10-11 o'clock in the night, hence he could not recognize the person accompanying Munfait. He had only seen Suleman and Shaudan in court and they were not put up for test identification before him. He did not know who had murdered the three deceased. He had given the statement to the Magistrate at the instance of the police.
Witnesses of investigation.
Nazar Mohammad has been examined as PW-3 in S.T. No. 256 of 2011. He merely stated that he was a witness of inquest which was filled up in his presence after the three corpses of Saimun, Musharraf and Samshad were found in the jungle. He has not even cross examined.
SI Satyapal Singh has been examined as PW-14 in S.T. No. 20 of 2003. He deposed that he was posted as a constable at police station Bhopa. On 30.6.2000 he along with S.O Puran Mal Kashyap (the I.O. who died before the trial) and the appellant Sheodan who was in custody had left the police station at 5.50 P.M and arrived at the spot. When they proceeded 1 km towards Nagla Bujurg, then the appellant asked them to stop the jeep. The appellant Shaudan got down from the jeep and proceeded to the bajra field of Satyaveer Jat from where he took out a knife. The appellant Shaudan is also said to have signed on the recovery memo, but he admitted that the recovery memo was missing from the file, although its check report is present which is marked Ext. Ka-28. He claims to recognize the signature of S.O Puran Mal Kashyap, who had died. The site plan prepared by him is Ext. Ka-32 and also the site plan from where the knife was got recovered by the appellant Shaudan (Ext. Ka-33). The G.D entry of his leaving the police station was not present on the record. The recovered knife was not present in Court when his evidence was recorded. He had never seen the recovered items. There was no public witness of the recovery as no one had agreed to be a witness of the recovery.
SI Sanjay Verma has been examined as PW-15 in both S.T. No. 256 of 2011 and S.T. No. 20 of 2003. He stated that on 21.1.2011, he was posted as S.O at police station Bhopa. He had gone to District Jail for recording the statement of appellant Suleman. On 31.1.2011, he had submitted a charge sheet against Suleman bearing Charge Sheet No. 135A/2000, under section 302 and 201 I.P.C. It was not pointed out as to which knife was recovered from the appellant Shaudan and which knife was recovered at the instance of Sayyad.
Evaluation of the evidence This is a case of circumstantial evidence and it needs to be evaluated whether the circumstances and the evidence adduced in this case lead to only one conclusion, that of the complicity of the appellants in this offence and whether the chain of circumstances against the appellants for establishing their complicity in this offence is complete, and whether the evidence adduced leads to no other hypothesis other than the guilt of the accused.
The questions which arises for consideration in this case are:
One, whether it is established that the deaths of the three deceased were homicidal.
Two, whether the evidence that has been collected in this case i.e. the evidence of last seen, extra judicial confessions, the affidavits and the statements before the Magistrate under section 164 Cr.P.C and the recovery of the knife allegedly at the instance of the appellant Shaudan are sufficient for establishing the complicity of the appellants in this offence.
Death is homicidal So far as the first question as to whether the deceased died a homicidal death is concerned, from the post-mortem reports of the three deceased which clearly show the presence of a large number of incised wounds on the three deceased, it is apparent that the deaths of the three deceased were homicidal. No dispute was also raised by the appellants that the cause of death was not homicidal.
Reliability of the evidence against the appellants We find that in both Sessions Trials which were decided by a common judgement and in which some of the evidence was also recorded together after Suleman the absconding accused had surrendered, an appraisal of the evidence shows that the evidence of the witnesses produced was not sufficiently reliable or sufficient for connecting the appellants with this crime.
Thus so far as the testimony of PW-4 Rustam, is concerned who has given evidence of last seeing the appellants with the deceased, we find the evidence of this witness to be vacillating and unreliable. Thus, PW-4 Rustam has at one stage disclaimed having met the appellant Shaudan on his way from Muzaffarnagar to his village Nagla Bujurg. He also stated that he had given the statement to the Magistrate under section 164 Cr.P.C mentioning the names of the accused persons on the threats of the police officer. So far as the affidavit submitted to the S.S.P dated 10.4.2001 was concerned, he stated that he did not know its contents, as the same was not read out to him by the advocate. In S.T. No. 256 of 2011, he however states when he was returning to his village from Muzaffarnagar having got down the bus at Kasampur, then he saw persons who appeared to resemble the absconding accused Zulfikar, Suleman, Munfait, but he did not know the appellant Suleman at that time whose names he has mentioned on the dictates of the police. He stated that he was 85 years in age and his eye sight was weak.
Another witness of last seen PW-3 Shravan in S.T. No. 20 of 2003, (who was PW-6 in S.T. No. 256 of 2011) claims to have dismounted the bus at Kasampur and was proceeding on foot to his village Nagla Bujurg. One kilometer ahead, near the fields of the Jatavs of Regda village, he saw Munfait, Sayyad and Suleman and he also saw someone looking like Shaudan from some distance. He also admits not recognizing Shaudan properly and was unable to state with certainty that the appellant was present there. He had seen a person looking like Shaudan from a distance of 60-65 meters. The affidavit was prepared at the Kutchery by an advocate and the same was not read out to him. He denied the contents of the affidavit but he admits his photograph and signature on the same. This witness appears to have partly supported the prosecution case in his examination in chief but to have resiled in his cross examination.
PW-5 Irshad, who appeared in S.T. No. 256 of 2011 claims to know the deceased Shaimun and Musharraf and appellant Suleman from before. Near the fields of the Jatavs, he claims to have seen Munfait, Sayyad, Suleman, Zulfikar and Shaudan standing. The deceased Saimun, Musharraf and Shamsad were also standing there and were talking. When he questioned the accused as to when they would be coming home, they replied that they would come after easing themselves. There were rumours, the next morning that the corpses of three persons Saimun, Musharraf and Shamsad were lying in the jungle and he thought that the murders had been committed by Munfait, Sayyad, Suleman, Zulfikar and Shaudan. He admitted to have given the statement under section 164 Cr.P.C but this witness again has resiled from his evidence in his cross examination, wherein he denied giving any statement under section 161 Cr.P.C. He also claims to have given a 164 Cr.P.C statement to the Magistrate on 24.5.2001 at the instigation of the police officer.
PW-9 Gayur, another witness of last seen in S.T. No. 20 of 2003 claims to know the appellant Suleman and Shaudan but he claims that on 26.6.2000, he was doing election duty work with his cousin Azad and had not gone to village Nagla Bujurg in the night nor had he seen the deceased or any accused person. He has not supported the prosecution case at all.
Thus we notice the vacillating and inconsistent nature of these testimonies, and the fact that the aforesaid witnesses have all resiled from their earlier versions, and claim to have given their 161 Cr.P.C statements, the affidavits to the SSP, and the 164 Cr.P.C statements on the threats of the police.
Even if we ignore the aforesaid weaknesses in these testimonies, the fact still remains that the evidence was only that the witnesses had seen the appellants and the absconding accused in the night, where the deceased were also present, and they refused to go home with the witnesses, but stated that they were going to ease themselves and were discussing some matters. By merely seeing of the accused and deceased together at that time, could not lead to an irresistible inference, that the appellants and the co-accused had committed the murder of the deceased. We find, how the deceased were found with their necks tied with their pajamas, and their hands tied with their tahmats. This picture does not square with the account of the witnesses when they say that they saw the accused talking to the deceased. Rather, it seems to suggest that some unknown persons might have way laid the deceased and may have been inquiring about some money etc. from them, for extracting which information, the hands and necks of the deceased may have been tied up. But in view of the intrinsic weaknesses in the testimonies of the witnesses we need not enter into the realm of speculation on this point.
So far as witnesses of extra judicial confession are concerned, PW-6 Dharamveer in S.T. No. 20 of 2003 and (PW-1 in S.T. No. 256 of 2011) is concerned, he deposed that 10 years earlier when he was sitting in his house on 22.7.2000 at about 10.00 A.M, along with Ahsan, then Munfait along with one other person, whose name he did not know at that time but later on learnt to be Suleman, resident of Megha Kheri had come to him and confessed to have murdered Saimun, Musharraf and Shamsad with the help of Shaudan, Sayyad, Munfait, Zulfikar. The two persons were admitting their mistake and were seeking his help as they found him to be close to the police. He however, corrected himself that Munfait had not revealed the name of the appellant Shaudan and had given an affidavit to the S.S.P on 10.4.2001. But he denied disclosing Shaudan's name and was surprised how Shaudan's name was mentioned therein. He then denied giving any 161 Cr.P.C statement to the police but admitted having given his 164 Cr.P.C statement to the Magistrate. He further stated that his affidavit to the S.S.P was not read out to him by an advocate or notary. He claims to have given the statement to the Magistrate on the threat of the police, who threatened to implicate him falsely in the case if he did not depose in the manner suggested by them.
PW-6 Dharamveer, who appeared as PW-1 in S.T. No. 20 of 2003 (and PW-6 in S.T. No. 256 of 2011) again disclaimed knowing Suleman from before, but claims that Munfait had told him Suleman's name. As it was 10 or 11 in the night, he could not even identify the person, who was accompanying Munfait. He had seen Suleman for the first time in Court on 30.6.2011 and Suleman had not been put up for test identification before him. He claims to have signed the affidavit which had not been read out to him, but denied that he was ever the Pradhan or the Sarpanch or even a member of the village committee and enjoyed any political post. He however admitted that he used to meet the police when it came to in the village. He claims to have given the statement to the Magistrate at the instance of the police. He denied of giving any 161 Cr.P.C statement to the police.
Ahsan, who appeared as PW-5 in S.T. No. 20 of 2003 stated that on 22.7.2000 at 10.00 P.M when he was sitting in the house of Dharamveer, the accused Munfait along with other persons had come there and said that he along with Sayyad, Zulfikar and Suleman had murdered Sainul, Musharraf and Samshad. He however, denied the involvement of Shaudan in this offence. He disclaims to have given the statement to the police and claims to have given the statement to the Magistrate on the threats of the police.
Apart from the fact that these witnesses of extra-judicial confession have given vacillating testimonies, and appear to be very uncertain as to the participation of the appellants Shaudan and Suleman, but even otherwise, we see no good reason for the accused to have made such disclosures to these witnesses, as these witnesses do not appear to be enjoying any such position that they could help the accused in any manner. It appears to us that they are got up witnesses for buttressing a weak case. The police, in view of the fact that three persons were murdered, appears to be making a desperate effort to anyhow implicate some persons for showing the crime as solved.
It is well settled that extra-judicial confessions constitute a weak piece of evidence. There must be some very good reasons for making the disclosure by the accused to the witnesses for this Court to place reliance on the same. The said reasons are missing in this case. Thus upon reviewing the case law it has been held in Sahadevan v. State of T.N., (2012) 6 SCC 403, at page 410 :
14: It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration We also find that the so called statement to the police under section 164 Cr.P.C was made after eleven months of the incident on 24.5.01. Even the affidavits to the SSP were given after ten months on 10.4.01. There appears to be no reasonable explanation for these delays, save that they were procured by the police for buttressing a weak case, in which there was no reliable evidence for connecting the accused with this offence. Notably earlier a final report under section 169 Cr.P.C was prepared in this case by an earlier investigating officer, but was not allowed to be filed.
The alleged recovery of the knife from the appellant Shaudan also does not inspire confidence. There is no public witness of the recovery of this knife from the field of Satveer Singh Jat at the instance of the appellant. PW 14 SI Satyapal Singh, who was the police witness of recovery, and who also identified the writing of S.O. Puranmal Kashyap, (who had died before the trial commenced), who sealed the knife and prepared its recovery memo, admitted that the recovery memo was not on the record. S.I. Satyapal Singh further admits that he had not signed the alleged recovery memo. The recovered knife was not even available in Court at the time of PW 14's evidence. When the witnesses had left the police station, along with Shaudan for recovery of the knife, no General Diary entry of their departure was made. The Forensic Laboratory Report dated 28.2.2000 shows that of the two knives (one which was got recovered by the absconding accused, Saiyaad, and the other from the appellant Shaudan) which were sent to the laboratory, one contained blood, and the other contained human blood. But it has not been clarified whether the knife recovered at the instance of the appellant, or the one got recovered by Saiyyad contained human blood. Even no specific question regarding the alleged recovery of the knife from him was put to the appellant under section 313 Cr.P.C, which would be another reason for discarding this circumstance against the appellant Shaudan.
We think that the trial Court has gravely erred in utilizing the belated and inadmissible 161 Cr.P.C statements recorded in the case diary or the 164 Cr.P.C. statements to the Magistrate dated 24.5.01, or the affidavits to the police dated 10.4.01, which seem to have been dictated by the police for propping up a weak case.
In Baij Nath Sah v. State of Bihar, (2010) 6 SCC 736, it has been held at page 737 :
We see from the judgments of the courts below that the only material that has been used against the appellant is the statement under Section 164 CrPC. This Court in Ram Kishan Singh v. Harmit Kaur, (1972) 3 SCC 280 has held that a statement under Section 164 CrPC is not substantive evidence and can be utilised only to corroborate or contradict the witness vis-à-vis statement made in court. In other words, it can be utilised only as a previous statement and nothing more.
Substantial portions have however been extracted from the case diary and the said material has wrongly been treated as substantive evidence, when the said could only have been used for corroborating or contradicting the evidence of the witnesses. Only the evidence adduced during trial in Court constitutes substantive evidence. For the reasons noted above, we see how faltering and unreliable is the vacillating evidence of witnesses who have in any case turned hostile, for connecting the appellants with the offence. The belated affidavits or 164 Cr.P.C statements cannot provide any corroboration to the weak, inadequate and unreliable testimony available in this case for connecting the appellants with this offence.
Illegitimate use has also been made of an application dated 5.5.01 given by Sri Mangeram Sharma, Advocate, on behalf of the appellant pleading guilty in the connected case under section 25/4 of the Arms Act for establishing the complicity of the appellant in the present case under section 364/302/201 IPC. According to section 43 of the Evidence Act, the judgments, other than those mentioned in sections 40, 41, or 42 of the Evidence Act are irrelevant, unless the existence of such judgment is a fact in issue, or is relevant under some other provisions of the Act. Thus K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87, at page 97 holds as follows:
30.What emerges from the aforesaid discussion is ? (1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicata may apply; (3) in a criminal case, Section 300 CrPC makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein. The findings and reasons in a judgment or evidence recorded in one case, cannot be used in another case.
Moreover in the case under section 25/4 of the Arms Act, the appellant had given an application on 5.5.2001, in which he mentioned that in the case under section 364/302/201 IPC, at Crime No. 148/2000 the police had submitted a final report at that stage. Even the release order had reached the jail in the said case, but no proceedings were taking place in the case under the Arms Act. He was in jail for a long period of time, and he was not interested in contesting the Arms Act any more and it should be finally decided on the basis of his confession and non-contest, and he should be released in terms of the period undergone by him. Merely from the application confessing to an offence under section 25(4) of the Arms Act, that the appellant did not have a license to keep the knife recovered from him (which was given in the aforesaid circumstances for securing his release from jail in the Arms Act case, for which he was being unnecessarily detained) would not amount to any admission of the appellant as to the ingredients of the crime, in the instant case under sections 364/302/201 IPC.
In the light of the aforesaid discussion it is abundantly clear that in this case based on circumstantial evidence, the prosecution have failed to indicate that the chain of circumstances for establishing the complicity of the appellants is so complete, or that the evidence adduced leads to no other inference except the guilt of the appellants.
The result is that we are of the opinion that the prosecution has failed to establish the complicity of the appellants in this offence beyond reasonable doubt. The appeals therefore succeed and are allowed. The conviction and sentence of the appellants by the trial Court is therefore set aside. The appellants are in jail, they shall be set at liberty forthwith, unless wanted in connection with some other case.
Order Date :- 11.12.2013 sfa/