Rajasthan High Court - Jaipur
Abdul Naiem vs State on 12 April, 2012
Bench: Mohammad Rafiq, Bela M. Trivedi
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. D.B. Criminal Appeal No.263/2003 Abdul Naiem Vs. The State of Rajasthan through Public Prosecutor
2. D.B. Criminal Appeal No.86/2006 Ramesh Loola Vs. The State of Rajasthan through Public Prosecutor Date of Order ::: 12th April, 2012 Present Hon'ble Mr. Justice Mohammad Rafiq Hon'ble Ms. Justice Bela M. Trivedi Shri Surendra Sharma and Ms. Shalini Sharma, Counsel for appellants Shri Amit Poonia, Public Prosecutor for the State #### //Reportable// By the Court (Per Justice Mohammad Rafiq):-
These two appeals have been preferred by accused Abdul Naiem and Ramesh Loola, against the judgment dated 04.01.2003, whereby learned Additional Sessions Judge (Fast Track) Baran, convicted them for offence under Section 302 read with Section 34 of the Indian Penal Code, and sentenced them to undergo imprisonment for life and a fine of Rs.500/-, each, in default of payment of fine, they were to further undergo simple imprisonment of six months.
Prosecution story as unfolded in the impugned judgment is that one Mohammad Farooq submitted a written report to the Station House Officer, Police Station Anta, District Baran, on 17.08.1999 stating that Amir Khan S/o Noor Mohammad, Aged 35 Years, R/o Nainwa, residing at Sanjay Nagar, Kota, who is his brother-in-law (loser), has been murdered. On receiving such telephonic information, he reached the place of incident at Siswali Road, where he saw dead body of Amir Khan lying on the ground. Two injuries were visible on both sides of his neck and another sharp edged injury was seen on his head. As a result of those injuries, he died. On enquiry, he learnt that Amir Khan left his house at Sanjay Nagar, Kota at 9.00 PM the previous night on 16.08.1999 but he was not aware who brought him to Siswali Road and murdered him by inflicting injuries with sharp edged weapon. He therefore requested that action be taken against the culprit.
Police after investigation filed challan against the accused-appellants Abdul Naiem and Ramesh Loola and third accused Sadakat Ali for offence under Section 302/34 IPC. Charges for offence under Section 302 IPC simplicitor and in the alternative, for offence under Section 302/34 IPC, were framed against them, to which they pleaded not guilty and claimed to be tried. Prosecution examined as many as 32 witnesses and exhibited 27 documents in support of its case. Defence did not adduce any evidence though the accused in their examination under Section 313 Cr.P.C. denied allegation against them. Learned Additional Sessions Judge on conclusion of the trial, while acquitting co-accused Sadakat Ali @ Babbi, convicted the above referred to two accused Abdul Naiem and Ramesh Loola under Section 302/34 IPC and awarded afore-indicated sentence. Aggrieved thereby, appellants have preferred these two appeals.
We have heard Shri Surendra Sharma, learned counsel for appellants and Shri Amit Poonia, learned Public Prosecutor.
Shri Surendra Sharma, learned counsel for the appellants, argued that there is no direct evidence against the accused-appellants and that the learned trial court has held the offence proved against accused-appellant merely on the basis of circumstantial evidence. In doing so, learned trial court has ignored two cardinal principles of criminal jurisprudence that guilt of the accused must be proved beyond reasonable doubt and burden of proof on the accused is not so heavy to prove his plea as on the prosecution to prove his guilt. Learned trial court has wrongly relied on the testimony of witnesses PW-7 Sagir Mohammad, brother of the deceased, PW-12 Raies, son of the deceased and PW-13 Salma, wife of the deceased, who have merely expressed doubt about role of the accused-appellants and not given any cogent and convincing evidence to bring home their guilt. All that PW-13 Salma has stated is that it were the accused, who came to her residence and took the deceased with them. PW-12 Raies has stated that accused-appellant Abdul Naiem and Ramesh Loola and one Sadakat Ali @ Babbi used to threaten his father. They came to their house two-three times. Then they had dinner with his father and also all had drinks together. He (witness) was sitting in a commander jeep. Sharif Mamu also came there and enquired about his father. When he pointed towards his father, Sharif talked to all of them and went back. He last saw his father going with these accused. PW-7 Sagir Mohammad stated that accused appellant Abdul Naiem and Ramesh Loola and Babbi came to him and told that deceased Amir Khan owed certain money to them and that this witness should ask his brother to pay that money. Accused Abdul Naiem told that his brother Amir Khan had threatened them that he would get them beaten by goondas whereupon he told that he (Naiem) too could collect goondas of Kota city and recover the money from deceased. Accused appellant Abdul Naiem used to work as driver and accused-appellant Ramesh Loola as khalasi on the truck of deceased Amir Khan and that Sadakat Ali @ Babbi used to accompany them.
Shri Surendra Sharma, learned counsel for the accused appellants, argued that the prosecution in order to prove the factum of last seen of the accused with deceased also produced PW-8 Ghasi Lal, on the plea that he used to sell eggs/omelet at the highway road crossing where the deceased took dinner and had drinks with the accused but this witness has turned hostile. PW-9 Onkar Lal at whose 'dhaba' the accused and deceased allegedly had dinner together has also turned hostile. PW-17 Mahesh Vijay, who runs a betel-nut shop, at the road crossing, where the accused were lastly seen with the deceased, has also turned hostile. PW-18 Ram Babu, who was set up as a witness to say that he saw the deceased with the accused while crossing the toll naka, has also turned hostile. PW-24 Pratap Singh, from whose shop accused and deceased allegedly bought liquor, has also turned hostile. PW-19 Moolchand and PW-20 Babulal, witnesses of recovery of jeep, have turned hostile. PW-4 Pramod Kumar, a witness of site plan and panchnama of dead body, also did not support the prosecution case and has been declared hostile. PW-11 Abdul Salam, who was produced as a witness by the prosecution to prove that he was with accused-appellants and deceased at the time of stealing rear tyres of a truck parked in front of the polytechnic school and that there was dispute about payment of their respective share of the value thereof, also did not support the prosecution story and was declared hostile. PW-14 Abdul Hamid and PW-23 Abdul Hanif, who were motbir witnesses of recovery of knife vide Exhibit p-15 at the instance of accused-appellant Abdul Naiem and sword vide Exhibit P-16 at the instance of accused-appellant Ramesh Loola, respectively, have both turned hostile and did not support the prosecution case. PW-15 Abdul Salim, who was produced by the prosecution as a witness of last seen, also turned hostile. PW-16 Dimple Chadda, who was sought to be produced as a witness by the prosecution to prove that the nylon rope, pieces of which were recovered from the place of incident, was purchased from his shop, also did not support the prosecution case and was declared hostile. PW-17 Mahesh Vijay, who was produced by the prosecution to prove that the deceased was last seen with the accused at the road crossing sitting in a jeep and passing through the toll naka, has also turned hostile. PW-18 Rambabu and PW-19 Moolchand and PW-20 Babulal, witnesses, who were produced by the prosecution to prove recovery of commander jeep vide Exhibit P-20, also turned hostile. PW-21 Ishaq Mohammad, who too was produced by the prosecution as a witness of last seen, has also turned hostile. PW-22 Abdul Wahid, who was produced by the prosecution as a witness to show that recovery of T-shirt of the deceased vide Exhibit P-14 and witness to Photography of the dead body vide Exhibit P-19, denied having witnessed such recovery and was declared hostile. PW-26 Motilal, who was produced as a witness to the panchnama of the dead body vide Exhibit P-2, has also turned hostile. PW-27 Mohammad Shafi, a witness of recovery of shirt of accused Abdul Naiem, has also turned hostile. PW-30 Ramniwas Bairwa, who was produced as a witness by the prosecution to prove that the deceased was last seen with the accused while crossing through the toll naka, where this witness was working, has also turned hostile. Witnesses of recovery of shirt of the accused appellant Abdul Naiem has turned hostile and not supported the recovery. PW-25 Abdul Ajij and PW-27 Mohammad Shafi, who was shown as a witness of recovery of shirt vide Exhibit P-23 from the place from such recovery was made vide Exhibit P-24, has turned hostile. In the recovery memo Exhibit P-23, it was mentioned that the shirt contained blood stains on its right shoulder whereas in the FSL report Exhibit P-28, the shirt was shown to have been recovered vide Exhibit P-11 (in packet J), whereas blood could not be detected in the shirt. Only the afore-mentioned four witnesses and the investigating officer and few formal witnesses of the police, have supported the prosecution case, otherwise, the very fact that large number of witnesses have not supported the prosecution version, clearly show that the accused appellants have been falsely implicated in the matter and that there is no evidence against them.
Shri Surendra Sharma, learned counsel for the appellants, argued that accused Sadakat Ali @ Babbi, too was named by PW-7 Sagir Mohammad, brother of deceased, as one, who had come to him complaining about his brother and asking him to persuade him to give them money. PW-12 Raies, son of the deceased, also gave similar statement that Babbi also used to come to their house along-with accused-appellants and used to threaten. These witnesses were not believed in respect of co-accused Sadakat Ali @ Babbi and the same set of evidence therefore could not be relied on for convicting accused-appellants. Learned counsel argued that PW-12 Raies has given altogether different story than other witnesses. What he has said is that accused-appellant Abdul Naiem, who was driver on their truck, and Ramesh Loola, who was khalasi, came to his father with stolen tyre and asked his father to keep these stolen tyres, however the deceased Amir Khan refused to oblige and rather removed them from employment.
Shri Surendra Sharma, learned counsel for accused-appellants, argued that the deceased owed certain money for the stolen tyres to the accused, can hardly be said to be such a dispute as would make a person of ordinary prudence believe that the accused would take the extreme step of committing his murder. Witnesses of recovery of knife and sword have turned hostile. Even otherwise, what has been shown recovered at the instance of accused appellant Ramesh Loola is not a sword but an object which look like the sword and does not have any handle (hattha) attached to it. Recovery of handle has been shown from the place of incident. Recovery of handle of the sword has been shown vide Exhibit P-5 but recovery of these two objects has been made separately and from two different places, which by itself cannot be sufficient to connect them with the crime. The prosecution has neither produced those two objects in the court nor confronted accused or even the investigating officer with the same to prove that the handle, which has been recovered from the place of incident is that of the same sword or the object which looks like the sword, which has been shown to have been recovered at the instance of the accused appellant Ramesh Loola. The prosecution has also not produced any expert on the subject to prove this fact. In the chain of circumstances, this was an important link, which is found completely missing. The recovery becomes highly doubtful particularly when both the witnesses of the recovery PW-23 Abdul Hanif and PW-14 Abdul Hamid, turned hostile. The fact that the investigating officer while recording the information received from the accused Ramesh Loola under Section 27 of the Evidence Act has at the out set mentioned that the accused can produce the sword without handle, raises a serious doubt as to why the accused would give the information in advance that the sword did not have handle.
Learned counsel for the appellants further argued that all the independent witnesses of last seen, motive and recovery of weapons, have turned hostile. The statements of PW-7 Sagir Mohammad, brother of deceased, PW-12 Raies, son of deceased, PW-13 Salma, wife of deceased, cannot be relied on to convict the accused as they did not prove his guilt beyond reasonable doubt. There are several missing links in the chain of circumstances yet on that basis the learned trial court has convicted the accused-appellant. It does not appeal to the reason that if the appellants were on a look out for the deceased and expressed their anger at him to his brother PW-7 Sagir Mohammad, still they would not only have dinner with him but also have drinks together. This story has not been corroborated by any other witnesses produced by the prosecution.
Per contra, Shri Amit Punia, learned Public prosecutor argued that even if other witnesses have turned hostile, evidence of PW-7 Sagir Mohammad, brother of deceased, PW-12 Raies, son of deceased, PW-13 Salma, wife of deceased, clearly proved the motive of accused in committing murder of Amir Khan, which is that they demanded certain money from the deceased, which he refused to pay. This is also proved from the evidence of these witnesses especially from the statements of PW-7 Sagir Mohammad and PW-12 Raies that accused had threatened the deceased of dire consequences if he did not pay the money. Statement of PW-12 Raies and PW-13 Salma clearly prove that it were accused, who were last seen with deceased. Their evidence cannot be discarded merely because they are related to the deceased, particularly when it is corroborated by recovery made at the instance of each of the accused-appellants.
While recovery of handle of sword vide Exhibit P-16 has been made from the place of incident itself, which is indicated at place other than in the site-plan Exhibit P-3. The very fact that the handle was recovered from the place closed to the dead-body and the sword that has been recovered at the instance of the accused-appellant Ramesh Loola conclusively connects with the crime because it is a matter of sheer coincidence that the sword that has been recovered at the instance of the said accused would be without handle. Similarly, the recovery of the knife has been made at the instance of accused-appellant Abdul Naiem vide Exhibit P-15. The knife (khanjar) that was sent to the forensic science laboratory was found having blood stains, although it is another matter that the blood was not sufficient to detect its group and RH factor. The sword, which was lying concealed under the land, was having rot and therefore it was not possible to determine whether or not it contained blood stains but nevertheless the recovery of sword which did not have the handle (Exhibit P-16) clearly proved that it was the same sword which was used by the accused in the commission of crime. Learned Public Prosecutor argued that doubt should be reasonable and therefore when both the accused have made disclosure about the weapons which they used in the commission of crime and they were last seen with the accused, this court ought not to indulge in splitting of the evidence.
Learned Public Prosecutor further argued that the motive of the crime is also clearly proved from the evidence of not only PW-12 Raies, son of deceased and PW-13 Salma wife of deceased, but also PW-7 Sagir Mohammad, brother of deceased, all of whom have stated that the deceased owed certain money to the accused, which they have demanded and its refusal led to his murder. Even if this money was share of the accused in the value of stolen tyres, this nevertheless was the reason why the accused felt strongly against deceased and ultimately committed his murder.
Mere fact that the witness of recovery of knife and sword have turned hostile, does not disprove the recovery because the evidence of PW-31 Khem Raj Chauhan, the investigating officer, who conducted the investigation and also made the recovery, would be sufficient to prove the factum of recovery against the accused. It is therefore prayed that the appeals may be dismissed.
We have bestowed our anxious consideration to rival submissions and carefully scanned the record. Before dealing with the arguments advanced at the bar, we deem it appropriate to briefly marshal the evidence of the prosecution to find out as to in what degree and proportion, it has been able to bring home the guilt of the accused-appellants.
Deceased died homicidal death is not in dispute and has been proved by PW-28 Kishan Kumar Gupta, the medical officer, according to whom death took place due to shock as a result of excessive bleeding which has occasioned on account of injury to the great vessel and he has proved the postmortem report Exhibit P-25. PW-31 Khem Raj Chauhan, the investigating officer, has proved various steps taken by him in the course of investigation. There is no direct evidence and entire matter hinges on circumstantial evidence. Question that arises for consideration of this court is whether is whether on the basis of available evidence, guilt of the accused appellants is proved beyond reasonable doubt.
There are basically in this case three factors, which weighed with the learned trial court in convicting the accused-appellants, first - evidence of last seen, second motive, and third - recovery. We shall subject the prosecution evidence on each of these three counts to critical examination in the light of submissions made by the learned counsel for the appellants and learned Public Prosecutor.
Examining first of all the evidence of last seen, PW-7 Sagir Mohammad, brother of the deceased, is not a witness of last seen. All what he said is that accused came to him and enquired about the deceased. PW-12 Raies, son of the deceased and PW-13 Salma, wife of the deceased, are only two witnesses of last seen, who have supported the prosecution story. PW-12 Raies has stated that the accused came to his house to enquire about his father. He told them that his father had gone to market. His father then came from market on a sunny scooter. He bought a new black T-shirt. Accused then had dinner with his father and also consumed liquor. During all this time, he was sitting in a commander jeep. When deceased left the house, he was wearing black T-shirt and black jeans. After some time Sharif Mamu also came there and enquired about his father. He pointed towards his father. Sharif Mamu talked to all these persons and went back. His father left for Nainwa with accused-appellants and rather told him that he was going to Nainwa and left with accused at 8-8.30 pm. His father gave him a currency note of Rs.10/- and asked him to go home. PW-13 Salma W/o deceased has stated that accused-appellants came to their house and took the deceased with them. Deceased was in a blue T-shirt. Her son told her next day in the morning that the deceased was taken by the accused in the jeep. This witness in the cross-examination stated that the accused and deceased did not have dinner at their residence and that they met at the road crossing. PW-12 Raies, son of deceased, does not specifically say that the deceased and the accused had dinner together at a 'dhaba' on the road crossing, which in fact was the case sought to be set up by the prosecution with various other witnesses such as PW-17 Mahesh Vijay 'paanwala', PW-9 Onkar Lal 'dhabawala', PW-18 Rambabu 'toll-nakawala' PW-8 Ghasi Lal 'egg-vendor, PW-24 Pratap Singh 'liquor-vendor', but all those witnesses have not supported the prosecution case and turned hostile.
PW-13 Salma, wife of deceased, has categorically denied that they had dinner at her residence but has stated that the deceased had gone with the accused. Deceased left her house with the accused at 8-8.30 pm and her son told her that he left with them in a jeep but in cross-examination she has clarified that they did not have dinner at her residence and met at the road crossing. This witness does not say that PW-12 left with the accused when the accused came to her residence to call the deceased but has rather stated that her son told her about the deceased having left with the accused in a jeep the preceding night. PW-12 Raies thus remains the only witness of last seen. While PW-12 Raies has stated that deceased when he left home was wearing a black T-shirt whereas PW-13 Salma has stated that he was wearing a blue T-shirt. In view of the inconsistency between the statements of two, the prosecution was required to prove by producing the evidence of last seen by producing independent witnesses but those witnesses such as PW-17 Mahesh Vijay 'paanwala', PW-9 Onkar Lal 'dhabawala', PW-18 Rambabu 'toll-nakawala' PW-8 Ghasi Lal 'egg-vendor' and PW-24 Pratap Singh 'liquor-vendor', though produced have not at all supported the prosecution case. PW-8 Ghasi Lal, the egg-vendor, has denied the suggestion of the prosecution that the accused Amir Khan got down from a jeep and came to his stall to bye eggs. PW-9 Onkar Lal, 'dhabawala', has denied the suggestion that accused had dinner at his 'dhaba' with the deceased and that the accused Abdul Naeem paid to him the bill after taking money from deceased Amir Khan. PW-17 Mahesh Vijay, 'paanwala', has also not supported the prosecution story that he saw the deceased with accused at the road crossing on the fateful day. PW-18 Ram Babu, who worked at toll naka, has also not supported the prosecution case that he saw deceased with the accused and co-accused Sadakat Ali @ Babbi in a jeep while crossing through the toll naka. PW-24 Pratap Singh has also not supported the prospection case that he told police that on 16.08.1999 the deceased Amir Khan has purchased liquor from his shop and that he was accompanied by two other persons in a commander jeep. PW-30 Ram Niwas has also not supported the prosecution case that he told the police that co-accused Sadakat Ali @ Babbi passed through the toll naka at about 11 or 12'O clock in the night of 16.08.1999 with 3-4 persons.
Apart from the fact that so many independent witnesses, who were produced by the prosecution to prove the evidence of last seen, have not supported the prosecution case, the prosecution has also withheld from the court a significant witness referred to as Sharif Mamu by PW-12 Raies, who happens to be his maternal uncle. According to him, Sharif came to him when he was sitting in a jeep, and enquired about his father i.e. the deceased. He pointed at his father, then Sharif talked to all these persons which means that Sharif even talked to the accused. Thus it is clear that it is only two witnesses that PW-12 Raies and PW-13 Salma, who have stated that they last saw the deceased in the company of the accused persons. But their statements also do not agree with each other.
Significantly enough, PW-12 Raies has stated that he saw three accused; the present accused appellants Abdul Naeem and Ramesh Lula and co-accused Sadakat Ali @ Babbi, who left in a jeep for Nainwa. PW-13 Salma has stated that it were only present two accused-appellants, who came to her house to fetch her husband. She does say about their leaving together for Nainwa but stated that this was so told to her by PW-12 Raies the following morning. PW-12 Raies son of deceased, in his statement, does not categorically state that the accused had dinner with his deceased father at the road side dhaba, which is what the prosecution sought to prove by the producing several witnesses of the road side dhaba, though none of them have supported the prosecution story on that aspect. PW-13 Salma wife of deceased, has also not given any categorical evidence as to exactly at which place the accused and deceased had dinner together; whether at his residence or road side dhaba. In view of the major contradictions between their statements that we have noticed above, conviction of the accused can not be sustained on the basis of their testimony alone unless it finds some corroboration from other evidence.
That brings us to the evidence of recovery against accused-appellants. PW-14 Abdul Hamid and PW-23 Abdul Hanif, who were the motbir witnesses of recovery of knife vide Exhibit p-15 at the instance of accused-appellant Abdul Naiem and sword vide Exhibit P-16 at the instance of accused-appellant Ramesh Loola, have both turned hostile and did not support the prosecution case. Even otherwise what has been shown recovered at the instance of accused appellant Ramesh Loola is not a sword but an object, which looks like sword and does not have any handle (hattha) attached to it. Recovery of handle has been shown from the place of incident and position of the same has been indicated at place 'C' in the site plan Exhibit P-3. Recovery of handle of the sword has been shown vide Exhibit P-5. But the recovery of these two objects has been made separately from different places, which by itself cannot be sufficient to connect them with each other. The prosecution has utterly failed to either produce two objects in the court and confront the investigating officer or any other witnesses with them to show that the handle, which has been recovered from the place of incident is that of the sword or the object which looks like the sword, which has been allegedly shown to have been recovered at the instance of accused appellant Ramesh Loola nor has the prosecution produced in evidence an armour as expert on the subject to prove this fact. In the chain of circumstances, this was an important link, which is found completely missing. The recovery becomes highly doubtful particularly when both witnesses of the recovery PW-23 Abdul Hanif and PW-14 Abdul Hamid, turned hostile. The fact that the investigating officer while recording information received from the accused Ramesh Loola under Section 27 of the Evidence Act has at the out set mentioned that the accused can produce the sword without handle, raises a serious doubt as to why the accused would give such information in advance that the sword did not have handle. This clearly shows that the police, while recording such information, has known it from before, that the sword, which is to be recovered does not have the handle, which has been already recovered from the place of incident.
Adverting now to the factor of motive, it must be observed that motive by itself is a very weak evidence and cannot alone form basis for conviction. Even then, if the motive in the present case is independently examined, the only motive that the prosecution has attributed to the accused for committing murder of the deceased is that they had together sometime back stolen two rear tyres of a truck, parked outside the polytechnic school and that those tyres were retained by the deceased, who did not pay to the accused their share and this led to the accused committing murder of the deceased. PW-11 Abdul Salam was produced as a witness by the prosecution to prove that he along-with accused-appellants Abdul Naiem, Ramesh Loola and the deceased Amir Khan had stolen those two tyres but this witness has denied having given any such statement to the police vide Exhibit P-12. PW-12 Raies has given an altogether different story about the stolen tyres. He has stated that accused-appellants Abdul Naiem and Ramesh Loola were engaged as driver and khalasi on the truck of the deceased; they brought stolen tyres to his father Amir Khan and asked him that he should retain them. But his father flatly refused and rather removed them from service, therefore, they had murdered him. PW-13 Salma has stated that some altercation took place between the accused and her husband about the incident of tyres but she has not clarified what she meant by the dispute about tyres. PW-7 Sagir Mohammad has merely stated that accused-appellants Abdul Naiem and Ramesh Loola and co-accused Sadakat Ali @ Babbi came to him enquiring about his brother Amir Khan and told him that he was not paying the money that he owed to them but he has not stated anything about the allegedly stolen tyres or that the money which the accused demanded from the deceased, was for those tyres. PW-12 Raies, though in the beginning of his statement, has said that the accused-appellants Abdul Naiem and Ramesh Loola and co-accused Sadakat Ali @ Babbi used to come to their house and threatened. There are thus these two versions which are contradictory to each other. One version that the prosecution sought to prove by producing PW-11 Abdul Salam was that the deceased retained the stolen tyres and did not pay to the accused their due share which led to the unfortunate incident of his murder. The other version is the one given by PW-12 Raies, son of the deceased. Moreover, evidence of motive loses its significance, once it is shown that accused and the deceased happily had dinner and drinks together.
It is trite that in a case of circumstantial evidence there must be complete chain of evidence which should lead to conclusion that the accused was the only person, who could have committed offence and none else. Each of circumstances that is proved against the accused should form a chain so complete so as to rule out every other hypothesis, which may be compatible with innocence of the accused. The fact that the prosecution sought to produce a large number of independent witnesses to prove the factum of last seen, motive and recovery against accused-appellants and all such wintesses have turned hostile, delivers a serious blow to the credibility of the prosecution case, which now entirely rests on the evidence of the PW-7 Sagir Mohammad, brother of deceased, PW-12 Raies, son of deceased, and PW-13 Salma wife of deceased, whose testimony stands on a shaky ground and has many contradictions, inconsistencies and does not prove any of those three factors, viz., last-seen, recovery and motive, beyond reasonable doubt. It has not been able to prove any of these three circumstnaces independently beyond reasonable doubt, let alone forming a chain of circumstance. Analysis of the evidence that we have made above, makes it evident that there are several missing links in the chain of circumstances, which cannot be accepted to be so complete as to point out to guilt of the accused and none else and when every single possibility of accused being innocent and not the real culprit, is ruled out.
The Supreme Court in Ashish Batham vs. State of M.P.- (2002) 7 SCC 317, in Para 8 of the judgment, held as under:-
Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record.
It may be noted that in Ashish Batham, supra, the case was entirely based on circumstantial evidence in which recovery of chain of the deceased and knife used in the commission of offence as well as blood stained clothes of the accused crept suspicion about role of the accused but recovery being delayed, having been made after second remand of the accused, was itself held to be doubtful and the factum about motive that accused was in love with the deceased also not accepted. It was held that only for this reason it cannot even remotely presumed that this could be the cause of murder unless it was substantiated by credible evidence that affair broken beyond redemption. Motive factor was held to have no legal basis to constitute sufficient circumstance to connect the appellant with the crime. The accused was therefore acquitted.
In Mohd. Arif v. State (NCT of Delhi) (2011) 13 SCC 621, the Supreme Court held that each of the circumstances has to be assessed on its own merits. Quality rather than quantity of evidence is crucial factor in a case of circumstantial evidence. The court has to be cautious against imaginary inferences or its prejudices, which may unwittingly creep in. Its verdict must be based on clear and irrefutable logic. Responsibility of the prosecution in a case of circumstantial evidence is more as compared to the cases where ocular testimony or the direct evidence is available.
In Kulvinder Singh v. State of Haryana (2011) 5 SCC 258, also it was held by the Supreme Court that in exceptional cases, conviction of accused can be based solely on circumstantial evidence but in that case the prosecution has to establish its case beyond reasonable doubt and cannot derive any strength from weakness of defence put up by accused. Circumstances from which guilt is to be drawn should be fully established and should be of a conclusive nature and exclude all possible hypotheses except the one to be proved. Facts so established must be consistent with hypothesis of guilt of accused and chain of evidence must be so complete as not to leave any reasonable ground for a conclusion consistent with innocence of accused and must show that in all human probability the act must have been done by accused and none else.
In Inspector of Police, Tamil Nadu Vs. John David (2011) 5 SCC 509, also the Supreme Court sounded a word of caution that the court must be cautious against conjectures and surmises taking place of proof. Circumstances so proved must form a chain of events pointing to guilt of accused beyond all reasonable doubt without there being possibility of any other hypothesis. Each and every incriminating circumstance must be clearly established by reliable and clinching evidence, and the circumstances so proved must form chain of proof from which natural and irresistible conclusion could be drawn as to the guilt of accused and no other hypothesis against guilt is possible. It was further observed by their Lordships that in a case depending largely upon circumstantial evidence, there is always a danger that conjectures and surmises may take place a legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such complete chain of events must be such as to rule out a reasonable likelihood of innocence of the accused. The court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof. There is a long mental distance between 'may be true' and 'must be true' and the same divides conjectures from sure conclusions. It was further observed that when important link goes, the chain of circumstances gets snapped. This is what has happened in the present case because of failure of the prosecution to connect the recovered handle of the sword from the place of incident with the sword recovered at the instance of the accused, and also the evidence of last seen and recovery against the accused stands on shaky ground.
In our considered opinion, therefore, it would be highly unsafe to sustain conviction of the accused-appellants on the kind of evidence that has been adduced in this case. Both the appeals filed by the accused appellants, therefore, deserve to succeed and are accordingly allowed. Conviction of accused appellants, namely, Abdul Naiem and Ramesh Loola, is set aside. Accused appellants, who are in jail for last about more than nine years and six months and fifteen days, if not required in any other case, may be set at liberty forthwith.
Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants Abdul Naiem and Ramesh Loola are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months. In the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Supreme Court.
(Bela M. Trivedi) J. (Mohammad Rafiq) J. //Jaiman//
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW