Uttarakhand High Court
Mohammad Akram 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.177 of 2012
Mohammad Akram ....... Appellant.
Versus
State of Uttarakhand .....Respondent
Mr. B.S. Parihar, Advocate for the appellant.
Mr. D.K. Sharma, Senior Addl. Advocate General for the State.
Reserved on:24.07.2017
Delivered on:28.07.2017
Coram : - Hon'ble Rajiv Sharma , J.
Hon'ble Sharad Kumar Sharma, J.
Per : Hon'ble Rajiv Sharma , J.
This criminal appeal is instituted against the judgment and order dated 22.05.2012 rendered by learned Additional Sessions Judge, Nainital in Sessions Trial No.88 of 2006, whereby the appellant who was charged with and tried for the offence under Section 302 IPC, was convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of one year.
2. The case of the prosecution, in a nutshell, is that PW-1 Javed lodged a first information report stating therein that his mother went with appellant on 03.12.2004. His father died in the year 1994. His mother developed intimacy with the appellant. The appellant was married in the month of January, 2003. Thereafter, quarrel took place between 2 the wife of appellant namely Khusnuma @ Gudia and his mother. On 03.12.2004, the appellant took away his mother on the pretext that he will get her treated at Aligarh. Appellant came back to Moradabad on 04.12.2004 but his mother did not come. He made enquiry from appellant. Appellant told that his mother is under treatment. However, on 09.12.2004, a photograph of his mother appeared in the daily Edition of Amar Ujala Newspaper. According to PW-1 Javed, appellant has killed his mother in the Hotel at Nainital.
3. A first information report was registered in the matter and post mortem of the dead body was conducted. The matter was investigated and Challan was put up before the Court after completing all the codal formalities.
4. The prosecution has produced as many as eight witnesses in order to prove its case.
5. The statement of appellant was also recorded under section 313 Cr.P.C. He denied the case of the prosecution and claimed to be tried. After conclusion of the trial, appellant was convicted and sentenced as noticed hereinabove. Hence, the present appeal.
5. Mr. B.S. Parihar, Advocate appearing for the appellant, has vehemently argued that the prosecution has failed to prove its case against the appellant.
6. Mr. D.K. Sharma, Senior Addl. Advocate General for the State has supported the impugned judgment dated 22.05.2012.
37. We have heard learned counsel for the parties and also gone through the judgment and record carefully.
8. PW-1 Javed is the son of the deceased. He deposed that appellant was closely related to him. He lived in Moradabad. Appellant used to come to his house. He was married with one Shabnam @ Gudia, thereafter, he stopped coming to his house. His mother used to go to the house of appellant. There was a constant quarrel between his mother and appellant's wife. On 03.12.2004, appellant came to his house and told that he will take his mother to the Hospital for her treatment at Aligarh. However, the appellant took his mother to Nainital. He was seen by Bhura and Noor Mohammad. She did not come back. On 05.12.2004 he went to the factory where appellant was employed. Thereafter, a photograph appeared in the daily edition of Amar Ujala Newspaper. He recognized his mother's photograph.
9. PW-2 Dr. Rajesh Shah has conducted the post mortem. According to him, the deceased died due to poisoning between 03.12.2004 to 04.12.2004.
10. PW-3 Atul Sah is the formal witness.
11. PW-4 Bhagat Ram deposed that he was working as a Manager in the Tourist Hotel, Tallital on 03.12.2004. One person at about 03.30 P.M. came to the Hotel with one woman. He was allotted Room No.18. He paid the rent also. The woman was carrying the polythene bag. The codal formalities were completed in the hotel. Appellant has given wrong description in the register. Appellant asked for a cup 4 of tea. Tea was served. Appellant has ordered for dinner. The dead body of the woman was recovered on the next day. He recognized the appellant in the Court. In his cross examination, he deposed that he had gone for test identification parade.
12. PW-5 Jagdish Ram deposed that he was working as waiter in the Tourist Hotel on 03.12.2004. A couple had come between 3.00 - 3.30 p.m. in the Hotel. They have been provided room No.18. At 07.00 p.m. an order for dinner was placed. Dinner was served. The dead body of a woman was recovered on the next day. Appellant was identified by the witness in the Court. In the cross examination, he deposed that he had gone to Sub-Jail, Haldwani in order to identify the appellant. However, he got frightened. The persons produced in the line were wrapped in blanket and plaster was put on their mouth. Thus, he could not recognize the appellant.
13. PW-6 Prakash Chand Mathapal was the Investigating Officer in the matter. He has put up the challan before the Court after completing all the codal formalities.
14. PW-7 Brijendra Sharma was the constable. He is the formal witness.
15. PW-8 Mohammad Ali was posted as A.S.I. in Police Station, Tallital who has partially investigated the matter. He deposed that PW-1 Javed came to the police station on 11.12.2004 and identified the clothes of his 5 mother. He did not lodge the first information report on the same day on the pretext that they were perplexed.
16. The case of the prosecution is entirely based on circumstantial evidence and it is necessary for the prosecution to complete the entire chain to ensure that all the circumstances must exclusively indicate towards the guilt of the appellant. It has come on record that appellant has took away the mother of PW-1 Javed to Nainital instead taking her for treatment at Aligarh. He stayed in the Hotel at Nainital. Father of PW-1 Javed died in the year 1994. PW-1 Javed's mother and appellant developed intimacy. Appellant was married in the year 2003. There was a quarrel between his mother and wife of the appellant. The appellant took away mother of PW-1 Javed on 03.12.2004. PW-1 Javed enquired about his mother. He visited the factory on 05.12.2004. The statement of PW-4 Bhagat Ram is material. PW-4 Bhagat Ram has categorically deposed that appellant came in the hotel on 03.12.2004 and booked room No. 18 with the mother of PW-1 (Javed). He was served tea and dinner. The dead body of the mother of PW-1 (Javed) was recovered on the next day. He has recognized the appellant in the Court. PW-5 Jagdish Ram has also identified the appellant in the Court. According to him, appellant was provided room No.18. He was served tea and dinner. He could not recognize the appellant in the Sub-Jail Haldwani since he was frightened. He further deposed in his cross examination that all the persons were standing in queue for test identification parade wrapped in the blanket and on their mouth tapes were fixed. The cause of the death as per the statement of PW-2 Dr. Rajesh Shah is poisoning. Prosecution has proved the charges against the appellant 6 beyond reasonable doubt that appellant took away the mother of PW-1 (Javed) at Nainital and killed her by giving her poison. He was identified by PW-4 Bhagat Ram and PW-5 Jagdish Ram. The motive attributed to the appellant was that he wanted to eliminate the mother of PW-1 (Javed) after his marriage in the year 2003.
17. Their Lordships of the Hon'ble Supreme Court in AIR (2003) 7 SC 2471, in the case of "Visveswaran Vs. State", have held that identification of accused in court or in test identification parade is not a sine qua non for conviction. Commission of crime can be proved by circumstantial evidence. Their Lordships have held as under :-
11. It is unfortunate that despite the aforesaid facts, the test identification parade was not held.
An important aspect of the case is that the appellant had beard and moustaches when PW 1 and PW 2 were examined as witnesses for the prosecution. It was not so at the time of the occurrence. PW 1 and PW 2, therefore, it is evident, could not identify him in Court and stated in their deposition that the said person is not in Court. It does not mean that the acquittal is to follow as a natural corroboratory (sic) from the statements of PW1 and PW 2. The identification of the accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a time, crimes are committed under the cover of darkness when none is able to identify the accused. The commission of a crime can be proved also by circumstantial evidence. In the present case, there are clinching circumstances unerringly pointing out the accusing finger towards the appellant beyond any reasonable doubt.
13. Reverting to the instant case, it is no doubt true that if the evidence of witnesses is examined in isolation, without having regard to the aforesaid 7 principles, there may be considerable force in the submission that the identity of the appellant has not been established and likewise as a result of defective investigation of not holding the test identification parade, the benefit should go to the appellant. However, when the case is examined having regard to the aforesaid legal principles, the result would be otherwise. Circumstances which have been taken into consideration against the appellant by the trial court as well as the High Court are that the appellant, a police official, was caught from a room in a hotel. The proprietor of the hotel was examined as PW 3. The hotel record (Exhibits P-4 and P-5) showed booking of the room in that hotel by the appellant and also payment of advance of Rs 100. PW 3 had also been examined by PW 14. The appellant could not explain his whereabouts during the time the offence was committed. He was not cooperative during investigation. He declined to give sample of his semen. He was having different appearance at the time of examination of PW 1 and PW 2 in Court. At the time of commission of offence, he did not have beard and moustaches. However, when PW 1 and PW 2 were examined in Court, he had beard and the moustaches and was wearing dhoti. The testimony of PW 1 and PW 2 was straightforward. The witnesses, immediately after the commission of offence, had named the appellant. The non- holding of the test identification parade, having regard to the facts of the case, is not fatal and does not create any reasonable doubt in the case of the prosecution. We are unable to accept the contention that the identity of the appellant had not been proved. From the proved circumstances, it has been fully established that PW 1 was picked up and raped in a hotel room as per the case set up by the prosecution by a police constable who was none other than the appellant. There is no infirmity in the impugned judgment of the High Court.
18. Their Lordships of the Hon'ble Supreme Court in (2002) 7 SCC 295, in the case of "Dana Yadav @ Dahu and others vs. State of Bihar", have held that even if TI 8 parade is not held and witnesses identify the accused for the first time before the court, evidence regarding identification in court does not become inadmissible and cannot be discarded on ground of not being preceded by TI parade. Their Lordships have held as under :-
11. This question was the subject-matter of consideration before different High Courts as well as this Court. It is well settled that no test identification parade is called for and it would be a waste of time to put him up for identification if the victim mentions name of the accused in the first information report or he is known to the prosecution witnesses from before. Reference may be made in this regard to the cases of Dharamvir v. State of M.P.18 and Mehtab Singh v. State of M.P.19 In the case of Sajjan Singh v. Emperor20 the Court while examining the case in similar circumstances observed (at AIR p. 50) thus:
"If an accused person is already well known to the witnesses, an identification parade would, of course, be only a waste of time. If, however, the witnesses claim to have known the accused previously, while the accused himself denies this, it is difficult to see how the claim made by the witnesses can be used as reason for refusing to allow their claim to be put to the only practical test. Even if the denial of the accused is false, no harm is done, and the value of the evidence given by the witnesses may be increased. It is true that it is by no means uncommon for persons who have been absconding for a long time to claim an identification parade in the hope that their appearance may have changed sufficiently for them to escape recognition. Even so, this is not in itself a good ground for refusing to allow any sort of test to be carried out. It may be that the witnesses may not be able to identify a person whom they knew by sight owing to some change of appearance or even to weakness of memory, but this is only one of the facts along with many others, such as the length of time 9 that has elapsed, which will have to be taken into consideration in determining whether the witnesses are telling the truth or not."
38. In view of the law analysed above, we conclude thus:
(a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same.
19. Their Lordships of the Hon'ble Supreme Court in (2011) 3 SCC 654, in the case of "Sheo Shankar Singh vs. State of Jharkhand and another", have held that identification of accused in court by witness constitutes substantive evidence in a case.
20. Their Lordships of the Hon'ble Supreme Court in (2012) 9 SCC 284, in the case of "Ravi Kapur vs. State of Rajasthan", have held that identification in the court is a good identification in the eye of the law and need not always be preceded by test identification parade. Their Lordships have held as under :-
37. In our considered view, it was not necessary to hold the test identification parade of the appellant for two reasons. Firstly, the appellant was already known to the passers-by who had recognised him while driving the bus and had stated his name and, secondly, he was duly seen, though for a short but reasonable period, when after parking the bus, he got down from the bus and ran away.
21. Accordingly, there is no force in the appeal and the same is hereby dismissed. Appellant/appellant is on bail. His bail is cancelled. Let he be taken into custody 10 forthwith to serve out the sentence so awarded to him by the trial court.
22. Let a copy of this judgment along with lower court record be transmitted to the court below for compliance of the judgment forthwith.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) JKJ .28.07.2017