Rajasthan High Court - Jaipur
Mustaq Khan vs State on 22 October, 2009
Author: Dalip Singh
Bench: Dalip Singh
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT 1. D.B.CRIMINAL APPEAL NO.1566/2002. MUSHTAQ KHAN. VERSUS STATE OF RAJASTHAN. 2. D.B.CRIMINAL JAIL APPEAL NO.1016/2006. MUSTAQ KHAN. VERSUS STATE OF RAJASTHAN. AGAINST THE JUDGMENT AND CONVICTION ORDER DATED 02.11.2002 PASSED BY SHRI AJAY KUMAR MEENA, R.H.J.S., ADDITIONAL DISTRICT AND SESSIONS JUDGE (FAST TRACK), JAIPUR DISTRICT, JAIPUR IN SESSIONS CASE NO.10/2002 WHEREBY THE ACCUSED APPELLANT HAS BEEN CONVICTED AND SENTENCED FOR LIFE IMPRISONMENT FOR THE OFFENCE UNDER SECTION 302 AND 201 I.P.C. Date of Judgment. : October 22nd, 2009. PRESENT HON'BLE MR.JUSTICE DALIP SINGH HON'BLE MR.JUSTICE K.S.CHAUDHARI Mr.A.K.Bhandari, Senior Counsel assisted by Mr.Kinsukh Jain, for the appellant. Mr.J.R.Bijarnia, Public Prosecutor for the State. BY THE COURT (PER HON'BLE SINGH,J.):
D.B.CRIMINAL APPEAL NO.1566/2002 This appeal has been preferred by the accused appellant Mushtaq Khan through the counsel and the accused appellant is represented by Senior Counsel Mr.Abhay Kumar Bhandari assisted by Mr.Kinsukh Jain and D.B.Criminal Jail Appeal No.1016/2006 has been sent by post from jail by the same accused who has been convicted for the offence under Section 302 and 201 I.P.C. The accused appellant has been sentenced for imprisonment for life with a fine of Rs.5,000/-; in default of payment of fine to further undergo one year's rigorous imprisonment for the offence under Section 302 I.P.C. and for the offence under Section 201 I.P.C. has been sentenced for five years rigorous imprisonment with a fine of Rs.3,000/-; in default of payment of fine to further undergo six months rigorous imprisonment.
2. The facts, in brief, are that a written report (Exhibit P-1) was lodged by PW-1 Himmat Khan with the Police Station Govindgarh on 07.11.2001 at 7:15 PM on which the FIR No.264/2001 was registered. The FIR (Exhibit P-1) reads as follows:-
''???? ???, ???????? ??????? ????
????? ???? ???????????
????:- ???? ?????? ??? ???? ?? ?????? ???? ?????
?????, ?????? ?? ?? ??? ???????? ??????? ??? s/o ???? ??????? ???? ??? ??????- ????????? ?? ???? ???? ???? ??? ??? ?????? 06.11.2001 ?? ????? ???? 4 ??? ???? ??? ?? ??? ???? ??? ??? ??? ?? ?????? 7.11.2001 ?? ??? ????? 1 ??? ???? ???? ????? ???? ?? ??? ?? ????? ?? ???? ????? ??? ???? ????-7 ???? ?? ?? ???? 8 ??? ???????? ???? ??? ?? ??? ??? ??? ??? ??? ?? ?? ?? ???? ???? ??? ????? ??? ???? ?? ?? ????? ??? ?? ??? ??? ???? ??? ??? ?? ??? ???? ?? ????? ???? 4.30 ?? ????????? ?????? ???? ?? ?????? ?? ??? ???? 100 ???? ?? ???? ?? ???? ?????? ?? ???????? ?? ?????? ???? ??? ??? ??????? ???? ?? ??? ???? ???? ??? ???? ?? ???? ????? ???, ???? ??? ?? ????? ????? ??????? ?? ?? ??? ???? ???? ?? ???????? ?? ?? ?? ?????? ???? ?????? ???? ??? ????? ?????? ?? ??? ???? ???? ?? ???? ?????? ??? ???? ?? ??? ????? ???? ????????? ?? ???? ?????? ??? ???? ?? ??? ?? ?????? ??? ??? ???????????? ???? ???? ???? ?????? ????????? ?? ?????''
3. The police started investigation and during the course of investigation, body of the deceased was recovered and sent for post mortem. The post mortem report is Exhibit P-13. During the course of investigation, the photographs of the place of incident were taken which are Exhibit P-3 and the site plan was also prepared which is Exhibit P-4. During the course of investigation, the police also lifted the footprints from the place of incident which is Exhibit P-5. The cloths of the deceased were also seized vide Exhibit P-7 and Exhibit P-8. The arrest memo of the accused appellant is Exhibit P-9 and the shoes which he was wearing were seized vide Exhibit P-10. The medical examination of the accused appellant was conducted after his arrest and the certificate issued by the Doctor is Exhibit P-18. After the arrest of the accused appellant, the information given by the accused appellant under Section 27 of the Indian Evidence Act was recorded with regard to the article Sariya vide Exhibit P-24, with regard to the place of incident Exhibit P-25, with regard to the cloths Exhibit P-26 and with regard to the piece of rope vide Exhibit P-27. The site plan with regard to the place of recovery of angle iron is Exhibit P-15. After investigation, the police filed challan under Sections 302, 376, 377 and 201 I.P.C.
4. The learned trial court vide judgment dated 02.11.2002 acquitted the accused appellant of the offence under Section 376 and 377 I.P.C. for lack of evidence but convicted the accused appellant for the offence under Section 302 and 201 I.P.C. and sentenced him as indicated above.
5. The State has not preferred any appeal against the acquittal of the accused appellant for the offence under Section 376 and 377 I.P.C.. The accused appellant has preferred this appeal against his conviction and sentence for the offence under Section 302 and 201 I.P.C.
6. Learned Senior Counsel appearing for the accused appellant submitted that present one is a case of no evidence and that the learned trial court has committed an error in convicting the accused appellant for the offence under Section 302 and 201 I.P.C. He submitted that the learned trial court has taken into account the circumstantial evidence produced by the prosecution in the present case and on the basis of the same has convicted the accused appellant. The circumstances which have been pointed out are of last seen which is in the form of the statement of the sister of the deceased namely PW-18 Salma Khatoon. As per her statement, which has been relied upon by the learned trial court, the witness PW-18 Salma Khatoon is said to have seen the accused appellant coming from the river side where the deceased had gone in the morning to answer the call of nature. She is reported to have told her mother PW-10 Mehtab Khatoon, who was also the mother of the deceased, that Noorjahan (the deceased) had not returned after answering the call of nature. Upon hearing this PW-10 Mehtab Khatoon is alleged to have sent PW-18 Salma Khatoon to go and look for her but Salma could not find her. She has further stated that thereafter they informed PW-1 Himmat Khan, the husband of PW-10 Mehtab Khatoon and father of the deceased, who had gone away to Sikar on phone and PW-1 Himmat Khan came back to the village at about 4:00 in the evening. The relevant portion of the statement of PW-10 in examination in chief reads as follows:-
''??? ???? ?? ??????? ?? ???? ??? ???? 6 ????? ?? ??? ???? ??? ???? ???? ????? ?? ? ???? ????? ??????????? ?? ??????? ???? ??????? ???? ??? ??? ?? ??????? ???? ???? ???? ??? ?? ???? ?????? ???? ?? ???? ????? ????? ?? ???? ????? ???? ???? ???????? ??? ??? ???? ?? ????? ??? ?? ???? ????? ??? ???? ??? ?? ?? ???? ??? ??? ?? ???? ??? ???? ?????? ???? ?? ????? ??? ??? ???? 4 ??? ?? ???? ??? ????? ?? ?? ? ???? ???? ????? ??? ???? ???? ?? ??? ??????? ???? ??? ??? ???? ??? ?? ??? ?? ??? ??? ??? ?? ???? ????? ??? ???? ?? ??? ???? ??? ??? ??? ???? ??? ??? ??? ??? ??? ??? ?? ?? ???? ????? ???? ?? ???????? ?????? ??????????? ???? ?? ??? ??? ???? ?? ??? ?? ???? ??? ????? ??? ??? ???? ??? ???? ???''
7. Learned counsel submitted that if the aforesaid statement of PW-10 Mehtab Khatoon, mother of the deceased Noorjahan, is taken on the face value then PW-18 Salma Khatoon is in fact the eye witness to the act of rape and murder as well as concealing the evidence by burying the dead body of deceased Noorjaha. He submits that having led direct evidence that Salma had seen the occurrence, in the form of the statement of PW-10 Mehtab Khatoon, the prosecution cannot rely upon the circumstantial evidence of last seen in the form of the statement of PW-18 Salma Khatoon which is contradictory.
8. PW-10 Mehtab Khatoon has further deposed that Salma came home and in the first instance did not tell her mother anything but subsequently, she informed her about what she had seen. The relevant portion of the statement of PW-10 Mehtab Khatoon, mother of the deceased is as follows:-
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
9. With a view to appreciate the above, it is necessary to extract the relevant portion of the examination-in-chief from the statement of PW-18 Salma Khatoon, which is as under:-
''??? ???? ???? 8 ??? ??????? ???? ??, ???? ???? ??? ???? ??? ??? ??????? ??? ??? ??????? ???? ? ??? ??, ???? ??? ????? ???????? ??? ?? ??? ?? ??? ??? ????? ??? ??? ?? ?? ??, ??? ????? ??????? ????,???? ??? ???? ?????? ?? ??? ?? ??????? ??? ?? ?? ?? ???? ??? ?? ????? ??? ?? ??????? ?? ??? ??? ??? ????, ? ?????? ??? ?? ?? ???? ??, ?? ??? ?? ???? ?????? ??? ????? ?? ??? ??? ???? ??? ???? ???? ???? ????? ?? ??? ??? ???? ?????? ?? ????? ???? {???? ??? ?? ??} ??? ????? ??? ???? ?? ??? ?? ???? ???? ????? ???? ??? ?? ??? ??? ??? ???? ??? ?? ???? ? ??? ??, ?? ??????? ?? ??????? ???? ??? ??, ?? ???? ??????? ?? ?????? ??? ??? ???? ??? ??, ?? ???? ????? ?? ??? ??? ??????? ???? ??? ???? ???? ????? ?? ??? ????? 12 ??? ??????? ???? ???, ?? ?? ??????? ??? ????? ???? ??? ?? ???? ??? ???? ???? ? ???? ??? ??? ???? ????, ???? ??? ???? ?? ?????? ??????? ???? ??? ??, ???? ?? ?? ??? ???? ??? ???? ???? ?? ???? ????? ?? ????? ?? ??? ??? ??????? ?? ???? ?? ????? ??? ????? ???? ???? ??? ??? ??? ????? ????? ???????? ?? ???? ?? ???? ???? ??? ?? ?? ???? ??? ??? ???''
10. From the above and reading the same in the light of the statement of PW-10, learned counsel submitted that PW-18 Salma Khatoon has nowhere stated, as stated by her mother PW-10 Mehtab Khatoon that she had seen the accused commtting the act of rape and murder and concealing the dead body. On the contrary, she is alleged to have seen the accused appellant coming from the river side in the morning when she was returning after answering the call of nature. Learned counsel then pointed out that PW-18 in cross examination has deposed as follows:-
''???????? ??? ????? ????? ?????? 7.11.2001 ?? 4 ??? ??? ???? ??? ??? ??,???? ??? ??? ???? ??, ???? ??? ????? ??, ???? ??? ?????''
11. Further on being cross examined, the witness categorically deposed as follows:-
''???? ?? ??? ?????: 8 ??? ?? ???? ?? ???? ???? 4 ??? ?? ????? ?????? 7.11.2001 ?? ????? ???????? ?? ??? ???? ?? ?? ??? ???? ????? ???? ?? ?? ??? ?? ?? ???????? ??? ?? ? ??? ???''
12. Learned counsel for the accused appellant, therefore, submits that so far as PW-18 Salma Khatoon is concerned, she has not stated that she saw the accused appellant with the deceased. All that she has stated is that she saw the accused appellant coming from the river side. On the basis of the above, learned counsel contended that there was inherent contradiction in the statements of PW-10 Mehtab Khatoon and PW-18 Salma Khatoon inasmuch as PW-10 Mehtab Khatoon has contended that PW-18 Salma Khatoon is an eye witness whereas PW-18 Salma Khatoon has not corroborated the statement of PW-10 Mehtab Khatoon and has rest content by stating that she saw the accused appellant coming from the river side at about 4:00 in the evening, whereas, in the examination-in-chief she stated, which has been recorded above, that she has seen the accused appellant coming from the river side in the morning when she went to answer the call of nature and then the witness PW-18 Salma Khatoon has stated that she saw the accused twice, both in the morning and in the evening. He thus submitted that the evidence of alleged last seen is contradictory in the light of the statement of the mother of the deceased PW-10 Mehtab Khatoon.
13. Learned counsel for the accused appellant then drew the attention of the court to the statements of three prosecution witnesses namely PW-8 Saleem, PW-12 Iqbal and PW-13 Sagarmal. It has been submitted by the learned counsel for the accused appellant that none of these witnesses have been declared hostile by the prosecution and they have been relied upon by the prosecution.
14. PW-8 Saleem has stated in his statement that Mushtaq, accused appellant, was with him between 4th to 7th (of November, 2001) and has given the details of their whereabouts and that they had returned to the village only on 07.11.2001 at about 4:00 in the evening and that they were not in the village prior to that and came to know about the girl having gone missing only on arrival in the village. The statement of PW-8 Saleem reads as follows:-
''6 ??? ???? ?? ??? ??? ??? ??? ???? ?? ????? ???? ???????? 4 ?? ???? 7 ????? ?? ???? ??? ??? 4 ????? ?? ??? ? ???????? ???? ?????? ??????? ??? ?? ? ??? ???? ??? ?? ????? ? ??? ??? ??? ???? ????? ??? ?? ????? ? ??? ??? ????? ?? ????? ???? ???? ?? ????? ??? ???? ????? ?? ??? ????? ??? ??? ??? ?? ???? ???? ??? ???? ???? ??? ?? ???- ????? ??? ??? ??????? ?? ??? ??? ?? ??????? ??? ?? ???? ?? ???? ????? ??? ???? ??? ??? ?? ???????? ?? ????? ???? ?? ???? ???????? ?? ???? ?? ???, ?? ???? ??? ????? ???????? ?? ????? ???? ??? ?? ????? ??? ??? ?? ????
???? ?????? ?? ?? ???- ???????:- ????????? ?? ?? ??
?? ?????? 4.11.2001 ?? 7.11.2001 ?? ??? ? ???????? ???-??? ?? ??? 4.11.2001 ?? ?? ?? ???? ?? ??? ?? 7.11.2001 ?? ??? ?? 4 ??? ?? ???? ?? ??? ?? ?? 4 ??? ???? ?????? ??, ?? ???? ????? ?? ???? ?? ???? ??? ??? ??? ?????? 7.11.2001 ?? ???? 7 ??? ?? ???? ??? ?? ???? ????? ??? ??? ? ???????? ?? ??? ?? ??? ?? ????? ??? ? ???????? ??? ???? ???? ????? ??? ???? ??? ???? ?? ???-????? ??? ??? ???? ????? ??? ??? ?????? 7.11.2001 ?? ???? 4 ??? ??? ?? ?? ?? ??? ???????? ?? ???? ?????''
15. Similarly, PW-12 Iqbal has deposed and has corroborated the statement of PW-8 that he saw PW-8 Saleem and Mushtaq, the accused appellant, together at about 11:30 12:00. PW-13 Sagarmal is also the prosecution witness and has deposed as follows:-
''??? ??? ????? ???? ???? ??? ?? ?????? RJ 14 P 8361 ??? ???? ??? ???? ?? ????????? ???????? ??? ???? ??? ?????? ???????? ?????? 7.11.2001 ?? 2.30- 3.00 ??? ???? ??? ??? ???? ?? ???? ??? ???? 4.00 ??? ????????? ????? ??? ??? ????? ???????? ? ?? ????? ???? ?? ?????? ???? ???? ??? ?????? ?? ??? ?? ?????? ???? ???? ??? ???????? ?? ??? ????? ????????? ?? ?? ???? ??? ???? ???''
16. On the basis of the above testimony of PW-12 and 13, who are the prosecution witnesses and upon whom the prosecution sought to rely, learned counsel for the accused appellant contended that the testimony of PW-8 Saleem stands corroborated that on 07.11.2001 the accused appellant Mushtaq was in the company of PW-8 Saleem and reached Hasteda village, the place of occurrence, only at about 4:00 in the evening on 07.11.2001. Learned Senior Counsel further sought to contend that since the prosecution has relied upon PW-8 Saleem and has not chosen to declare him hostile, the entire statement of PW-8 Saleem which has been quoted above if looked into then the accused appellant was with PW-8 Saleem from 4th to 7th November, 2001 and the details of their whereabouts have been given in the said statement and that they returned to the village Hasteda, the scene of occurrence, only at about 4:00 in the evening on 07.11.2001. Thus, learned counsel seeks to contend that the story with regard to PW-18 Salma Khatoon having seen the accused appellant in the morning of 07.11.2001 coming from the river side after the deceased went missing cannot be relied upon and it is only that on 07.11.2001 that accused appellant returned to the village at about 4:00 in the evening and it is at that point of time the witnesses saw the accused appellant in the village.
17. On the basis of the above, learned Senior Counsel appearing for the accused appellant contended that the evidence of last seen in the morning as alleged by PW-18 Salma Khatoon is false. So far as the evidence of the accused having been seen in the evening is concerned, PW-10 Mehtab Khatoon has stated that she and PW-18 Salma Khatoon had already found the dead body of Noorjahan in the morning about 10 O'Clock and the police had arrived at about 11 O'Clock. Her statement (PW-1)) is very categorical. Hence, the evidence of the circumstance of the accused having been last seen in the morning coming from the side of the river cannot be relied upon.
18. The next circumstance which is sought to be relied upon by the prosecution is of the footprints lifted from the scene of occurrence tallying with the shoes of the accused appellant. So far as the evidence with regard to the lifting of footprints is concerned, it was pointed out by Shri Bhandari, learned Senior Counsel for the accused appellant that the footprints of the accused appellant were lifted from the scene of occurrence vide Exhibit P-5 on 08.11.2001 i.e. the next day after the occurrence. It is submitted that apart from the fact that at the scene of occurrence several people had collected when the dead body was discovered which has also come in the prosecution evidence itself and that there were several footprints of different shapes and sizes out of which PW-5 Raghuveer Singh lifted just one for no obvious reason, therefore, no reliance can be placed on the tallying of the alleged footprints. He further submits that the Exhibit P-5 does not disclose that after the lifting of footprints from the crime scene, the moulds were sealed in any manner. The Exhibit P-5 does not bear any specimen seal nor is there any narration in the same that after preparing the moulds and lifting the footprints of the shoe of left foot, the moulds were sealed. It is, therefore, contended that the aforesaid evidence of alleged lifting of footprints from the scene of occurrence has no evidentiary value as it cannot rule out the possibility of the impression having been taken of the shoes after the arrest of the accused appellant in the police station itself. It has further been contended that the prosecution has not produced the independent witness Rashid before whom the footprints were lifted and the only witness produced in this behalf is PW-5 Raghuveer Singh who is the police Head Constable and who himself lifted the footprints from the site. Learned Senior Counsel pointed out from the statement of PW-5 Raghuveer Singh that he himself admittd that sealing was not done on the spot and that moulds were taken to the police station without being sealed and were sealed in the police station. On the basis of the above, learned Senior Counsel contended that the evidence with regard to the footprints cannot be relied upon. Apart from the above, in this connection, learned counsel for the accused appellant sought to contend that the prosecution did not produce the F.S.L. Report at the time of trial but was submitted by the learned Public Prosecutor by means of an application on 09.07.2002 and the report of the FSL clearly states that the packet containing the moulds of the footprint was received in an unsealed condition. In that view of the matter, no reliance can be placed on the report of the FSL relating to the footprint.
19. The last piece of evidence relied upon by the prosecution is of the recovery of the piece of angle iron and a rope. The angle iron was recovered on the information allegedly given by the accused appellant vide Exhibit P-14 for which the witnesses are PW-14 Abid Khan and PW-20 Waheed Khan. So far as the recovery of piece of angle iron is concerned, learned Senior Counsel contended that assuming that there is a recovery at the instance of the accused appellant, the prosecution has failed to connect this recovery of the angle iron with the alleged crime. Learned Senior Counsel drew the attention of the court to the Post Mortem Report (Exhibit P-13) and the statements of the Doctors PW-4 Dr.Meena Ahuja and PW-7 Dr.Raj Kumar Vijayvargiya who constituted the Board which conducted post mortem. On the basis of the above and looking to the nature of the injuries found on the body of the deceased and the fact that the cause of death of the deceased was by strangulation, in the opinion of the Board, therefore, there was nothing to connect the said article with the alleged crime by the accused appellant. Similarly, the recovery of the piece of rope vide Exhibit P-21, the learned Senior Counsel submitted, also, could not be connected with the alleged crime as PW-4 Dr.Meena Ahuja had deposed that the injury on the neck as shown in the Post Mortem Report (Exhibit P-13) at A to B cannot be caused by a rope. The relevant portion of her statement on which the learned counsel sought to rely upon reads as follows:-
''??????? ??.13 ??? ????? ? ?? ?? ?????? ??? ?????? ?? ???? ? ????? ??? ?? ??? ????? ???? ??? ???? ?? ??? ??? ??.1 ?? ??? ?????? ??, ??? ?????? ?? ? ???? ??, ??? ???? ??? ????? ??? ?????? ??? ??.2 ?? ???? ??? ?? ??? ???? ??? ?????''
20. Similarly PW-7 Dr.Raj Kumar Vijayvargiya stated in the cross examination as follows:-
''??? ?? ????? ??? ???????? ?????? ???? ??, ??????????? ??? ????? ?? ??? ????? ?? ???????: ?? ?????????? ???? ? ????? ???????? ?? ??? ?? ??, ???? ?????? ??? ???? ??? ?????''
21. Learned Senior Counsel on the basis of the above piece of evidence of both the Doctors who conducted post mortem contended that there was no evidence to connect the alleged angle iron and rope which were recovered at the instance of the accused appellant with the alleged crime.
22. Learned Senior Counsel further submitted that the recovery of the rope was made on 16.11.2001 i.e. after nearly nine days of the alleged incident and as per the statement of PW-21 Khursheed Khan, the witness to the recovery, the recovery of rope, article in question, was made from a distance of about two feet from where the dead body of the deceased Noorjahan was recovered. The relevant portion of the statement on which the reliance has been placed is as follows:-
''????? ?? ??? ??? ????? ??? ??, ???? ?? ??? ??? ?? ?? ?????? ????? ?? ???''
23. Learned counsel submitted that it is highly improbable that this piece of rope which was lying about two feet away from the place where the dead body had been concealed was not visible to the police (Investigating Officer) at the time when the dead body was recovered on 07.11.2001. On both the counts, learned counsel submits that recovery of articles, in the facts and circumstances, is highly improbable and suspicious and also there is no connection of the alleged recovered articles with the alleged crime and, therefore, this piece of evidence is of no use for the prosecution.
24. Learned Public Prosecutor, on the other hand, supported the judgment of the learned trial court and also submitted that apart from the above, there is also another set of evidence of recovery of a plastic can (dibba) used by the deceased while going to toilet in the morning. In this connection, learned Public Prosecutor drew the attention of the court to the evidence of PW-9 Padam Chand who has stated that in the morning at about 11 O'Clock when he went to the toilet in the jungle, he saw a plastic can (dibba) near a babool tree and he brought it back and left the same at the handpump. He has stated that at that time a young girl came and asked him as to from where he has brought the said plastic can (dibba) and he told her that if it belongs to her, she can take it. He then heard in the village that a dead body had been recovered.
25. We have gone through the record and heard learned Senior Counsel for the accused appellant as well as the learned Public Prosecutor.
26. Before we consider the rival submissions, it would be necessary to deal with the evidence of two more witnesses namely PW-19 Daud Khan and PW-1 Himmat Khan, father of the deceased.
27. PW-1 Himmat Khan who lodged the FIR is the father of the deceased and he has stated that he received a phone call at about 1 O'Clock in the afternoon at Sikar where he had gone to meet his sister. The said phone call had been made by PW-18 Salma Khatoon his daughter and she told him that Noorjahan is missing since 8 O'Clock in the morning after she has gone to the jungle for toilet and as such he should return to the village immediately. He states that on receiving the aforesaid information, he left Sikar and reached village Hasteda, the scene of occurrence, at about 4 O'Clock in the evening. He states that at about 4:00 in the evening when he got down from the Bus at the Bus Stand, Hasteda, he asked the villagers whether his daughter has been found and he received the information in the negative thereafter he met PW-11 Mahboob Khan and PW-19 Daud Khan and both of them told him that at one place they had found fresh sand which had been dug out and they would like to go there and look there. They went to the place and searched and upon removing the sand they were able to see the fingers of a human being and on further removal of the sand, he saw the hand of his daughter and identified it on account of the bangles which she was wearing. The people who were accompanying PW-1 Himmat Khan, the villagers, did not allow him to dig any further and remove the dead body. Thereafter, the police at Chowki was informed. The police at the Chowki informed the Thana and after the police party from the Thana arrived, they removed the body of the child Noorjahan from where it had been buried. The body was then taken to the Thana and the report was lodged which is Exhibit P-1. Thereafter, panchnama of the dead body was prepared. Along with his statement, the statement of PW-19 Daud Khan, whose presence is shown by PW-1 Himmat Khan, may also be noted.
28. PW-19 Daud Khan has stated that near the house of PW-1 is the shop of his son who is a cloth merchant. When he came at the shop from home at about 1 O'Clock, at that time, Noorjahan's mother PW-10 Mehtab Khatoon told him that her daughter Noorjahan is missing since 7:30 or 8:00 in the morning and despite that they have looked for her they have not been able to trace her. He stated that Himmat Khan was not at his home at that time and he had gone to Sikar. He has also stated that Salma informed Himmat Khan on phone and called him. He has also stated that PW-9 Padam Chand had returned with an empty plastic can and had left it near the handpump. He further stated that he inquired from PW-9 Padam Chand as to whose plastic can it was and PW-18 Salma Khatoon, daughter of PW-1 Himmat Khan identified it as one belonging to them. Interestingly PW-19 Daud Khan then deposed as follows:-
''?? ??? ????? ?? ???? ?? ??????? ?????, ?? ?????? ?? ?? ???? ???, ????? ???, ??? ????? ?? ?? ?????? ?? ?? ??? ??, ???? ??? ?? ??????? ??? ?? ?? ?????? ?? ? ??? ??? ??? ????? ?? ????? ?? ?? ??? ?? ???? ??????? ????? ??, ?? ???? ?? ?? ??? ??? ??? ?????? ?? ??????? ?????, ???? ????? ??? ???? ?????? ????? ??, ???? ??? ???????? ?? ??? ?? ????? ?? ??? ??????? ??? ?? ?? ????? ?? ????? ????? ???? ?? ???? ????? ?? ??? ????? ?? ????? ???? ????? ????? ???? ??? ??, ????? ???? ? ????''
29. Other witness in this regard is PW-11 Mehboob Khan has also vertually narrated the incident as narrated by PW-19 Daud Khan. In this very context the statement of PW-10 Mehtab Khatoon which has been quoted above in extenso shows that as per her statement, PW-18 Salma Khatoon had seen the accused appellant concealing the dead body in the riverbed and she told her mother at about 10 in the morning about the aforesaid fact. More interestingly as per PW-10 Mehtab Khatoon the police had arrived at 11 O'Clock in the morning and this witness PW-10 Mehtab Khatoon had told the police about the entire incident and the police had gone to the place of incident with her daughter PW-18 Salma Khatoon and, therefore, at the time when PW-1 Himmat Khan returned from Sikar, if the witness PW-10 Mehtab Khatoon is to be believed, they already knew that Noorjahan had been murdered and that Mushtaq has concealed her body in the riverbed which PW-18 Salma Khatoon had witnessed and the witness PW-10 Mehtab Khatoon on being informed by her daughter PW-18 Salma Khatoon had gone to the spot and told the police, when police came to the village at about 11:00 in the morning, about the entire incident. In that view of the matter, the prosecution story about the discovery of dead body in the manner suggested by PW-1 Himmat Khan and PW-2 Daud Khan becomes wholly false. Thus, remained the three circumstances i.e. (i) of the accused appellant being seen by PW-18 Salma Khatoon returning from the river side where the dead body was alleged to have been found; (ii) matching of footprints which were lifted from the scene of occurrence with those of the shoes that the accused appellant was wearing at the time of arrest; and (iii) the recovery of angle iron and the piece of rope at the instance of the accused appellant which have been relied upon by the learned trial court.
30. So far as the circumstance relating to the accused appellant having been seen by PW-18 Salma Khatoon coming from the river side where the dead body of the deceased was recovered, if PW-10 Mehtab Khatoon, who is the mother of the deceased, is to be believed, PW-18 Salma Khatoon had in fact seen the accused appellant committing the murder and concealing the body. So far as the aforesaid piece of evidence is concerned PW-18 Salma Khatoon herself who has appeared in the witness box has not stated so. However, the prosecution had tried to lead direct evidence against the accused appellant alleging that PW-18 Salma Khatoon actually witnessed the crime and being an eye witness to the incident as PW-10 Mehtab Khatoon. This fact has not been corroborated from the FIR (Exhibit-1) or from the testimony of any other witness including PW-18 Salma Khatoon herself. Therefore, so far as PW-18 Salma Khatoon having witnessed the crime is concerned, there is no evidence to suggest the same and the testimony of PW-10 Mehtab Khatoon cannot be relied upon in view of the fact that PW-18 Salma Khatoon herself has not testified to that effect.
31. As regards PW-18 Salma Khatoon having witnessed the accused appellant coming from the river side where the dead body of the deceased was recovered in the morning there is a conflicting version in the statement of PW-18 Salma Khatoon herself. In the opening part of the statement in the examination-in-chief she has deposed that Noorjahan, the deceased, had gone to the toilet at about 8:00 in the morning and she followed her after about half an hour and when she was returning she saw Mushtaq, the accused appellant, coming from the river side. If this statement is to be seen then the accused appellant was seen coming from the river side by the witness PW-18 Salma Khatoon in the morning. She thereafter has stated in the later part of the statement that Mushtaq Khan, the accused appellant, had come to the village at about 4:00 in the evening on 07.11.2001. She then goes to say that she had seen Mushtaq in the evening at 4 O'Clock. Thus, as per her statement she saw Mushtaq twice on 07.11.2001 i.e. firstly in the morning and then at 4 O'Clock in the evening. Apart from the above, the solitary statement of PW-18 Salma Khatoon there is no other piece of evidence to suggest that the accused appellant was seen coming from the river side in the morning. His coming from the river side in the morning is of importance as if the totality of evidence of prosecution is to be seen then by 4 O'Clock in the evening, the fact of Noorjahan having been murdered and buried at the place in the river was known in the light of the statement of PW-2 Daud Khan, PW-9 Padam Chand and PW-11 Mehboob Khan and the statement of PW-10 Mehtab Khatoon. If the statement of PW-10 Mehtab Khatoon is to be taken as correct, then the fact about the murder of the deceased Noorjahan and the place where she was buried was known even before 11 O'Clock and the police had arrived by that time. So far as the presence of the accused appellant in the village Hasteda in the morning of 07.11.2001 is concerned, the prosecution has itself examined PW-8 Saleem who has deposed that between 4th of November, 2001 and 7th of November, 2001, the accused appellant and the witness PW-8Saleem were not in the village Hasteda and that the accused appellant Mushtaq during the aforesaid period was with this witness at Bhensawa and then they went to village Rojda from Rojda they went to Jaipur where they made certain purchases of cloth and returned to Rojda. From Rojda they again went to Jaipur and returned to Hasteda on 07.11.2001 at about 4:00 in the evening. The witness has categorically stated in cross examination that on 07.11.2001 from 7:00 AM till about 2:30 PM in the afternoon, this witness PW-8 Saleem and the accused appellant Mushtaq were together at village Rojda. The testimony of this witness has been corroborated by other prosecution witness PW-12 Iqbal who has stated that he saw and met Mushtaq and PW-8 Saleem together at about 11:30 or 12:00. It is important to note that the witness PW-12 Iqbal had stated that the deceased was the daughter of his Mama and so is a relative of the deceased and there is no reason to disbelieve him.
32. The third witness is PW-13 Sagarmal who has stated that on 07.11.2001 at 2:30 or 3:00 in the afternoon he brought Mushtaq by his jeep from Chomu and left him at village Hasteda at about 4 in the evening. If the above evidence of the prosecution witnesses PW-8 Saleem, PW-12 Iqbal and PW-13 Sagarmal is to be believed and there is no reason for not believing them as the prosecution has not chosen to cross examine these witnesses or declare them hostile, the accused appellant was not in the village on 07.11.2001 before 4:00 PM which casts a doubt on the testimony of PW-18 Salma Khatoon that she saw the accused appellant in the village in the morning on 07.11.2001. Apart from the solitary statement of PW-18 Salma Khatoon the prosecution has not been able to bring any evidence even to suggest that the accused appellant was in the village Hasteda in the morning on 07.11.2001, while there is conclusive prosecution evidence to show that the accused appellant was not in village Hasteda between 4th November to 7th November, 2001 till 4 O'Clock in the evening.
33. The accused appellant further in his statement under Section 313 Cr.P.C. is very categorical and has stated as follows:-
''???????-29 ???? ?? ??? ???? ?? ?
??????- 4.11.2001 ?? 7.11.2001 ?? ??? ???? ????????? ??? ???? ??? 7.11.2001 ?? ???? 4 ??? ??? ??? ???? ????? ?? ???? ?? ??? ????????? ?????? ??? ??? ??? ???? ? ?????, ????, ???? ????? ????? ?? ???? ??????????? ??? ?? ???? ???? ?? ???? ??????? ??? ????? ?????? ???? ?? ???? ???? ??? ??? ???? ??? ???? ???''
34. In answer to the question No.8 with reference to the statement of PW-8 Saleem, the accused appellant has stated that what the witness PW-8 Saleem has stated is correct.
35. In view of the above and more particularly the prosecution evidence in the form of PW-8 Saleem, PW-12 Iqbal and PW-13 Sagarmal it is doubtful that the accused appellant was in the village Hasteda, the scene of occurrence, in the morning of 07.11.2001 and, therefore, the testimony of PW-18 Salma Khatoon to the effect that she saw the accused appellant coming from the river side, scene of occurrence, towards the village is doubtful. The aforesaid piece of evidence cannot be relied upon to connect the accused appellant with the aforesaid crime.
36. The other circumstantial piece of evidence is with regard to the lifting of footprints from the scene of occurrence and comparing them with the footprints of the shoes taken of the accused appellant after his arrest.
37. In this behalf Exhibit P-5 is the memo of taking of the footprints from the place of incident. A look at the above goes to show that it does not contain any mention of sealing the same after the lifting of footprints and preparing the moulds the same or were sealed in the presence of the witnesses. The said memo reads as follows:-
''???? ???? ????? ?? ??? ???????? ?? ???????? ??0 ??0 ??0 264/2001 ???? 302,201IPC ?????? 7.11.2001 ???? ???????????
????? ????????
1. ???? ???? ??? ????? ???? ??????? ?? ????-??????? ????-52 ???? ??. ?????? ????-???????????
2. ???? ???? ??? ????? ???? ???? ??? ????- ??????? ????-35 ???? ??. ????? ??.20 ?????? ?? ???????? ???? ???? ?????
???????? ???????? ?? ????? ???? ????? ?? ??? ???????? ( ????? ???) ???? ?? ???? ?????? ???? HC No.301 ????? ???????? ???? ????? ??????? ???????? MOB ???? ????? ?? ???? ????? ???? ???? ??? ???? ?????? ????? ??? ???? ???? ???? ???? ???? ?? ??????? ?? ????? A ????? ???? ????
???? ????? ????? ??????? ?? ???????? ?? ????? ????? ??? ??? ???? ?????????? ?????''
38. Thus, from the above, it is clear that the moulds of footprints were not sealed by the police after they were lifted. Learned counsel for the appellant submitted that in the absence of sealing of moulds, as mentioned in Exhibit P-5, the possibility that moulds were prepared subsequently after the arrest of the accused appellant and the seizure of his shoes vide Exhibit P-10 cannot be ruled out which would create a serious doubt about the authenticity of the above piece of evidence to be used against the accused appellant to the effect that there footprints were in fact found on the scene of the crime.
39. Learned counsel for the appellant further drew the attention of the court to the statement of PW-5 Raghuveer Singh who lifted the footprints from the scene of occurrence, more particularly, to the following portion:-
''??? ???????? ?? ???? ??? ?? ???? ?? ?? ??? ??, ???? ??? ???? ????, ???? ?? ??? ???? ???....... ??? ???????? ???? ?? ?????? ????? ?? ??? ??? ?? ?????? ???? ??? ????-??? ??? ???????? ??, ?????? ?? ????? ?? ?? ?? ??? ???????? ????? ??? ????? ??? ???????? ???-??? ??? ?? ??? ?? ??? ???????? ????? ??, ?? ??? ??? ???, ????? ????? ???? ??, ????? ??? ???? ??, ????? ????? ???? ??????.....?? ??? ??? ?? ?? ???? ?? ??? ???????? ????? ??, ?? ??????, ???????????, ??? ?????? ???? ?????? ???''
40. from the above, learned counsel for the appellant contended that admittedly at the scene of occurrence there were more than one footprint, about 5 to 7 in number to be precise and were of different persons and the witness lifted only one footprint as the others were not clear. The place from where the footprint was lifted was said to be loose desert sand and, therefore, the possibility of the footprints being intact was remote. The very fact that sealing, as per PW-5 Raghuveer Singh, was done only in the Police Station, it cannot be ruled out that in fact the footprints were taken of the shoes after the arrest of the accused appellant and the seizure of his shoes vide Exhibit P-10 and, therefore, the evidence of footprints cannot be taken to be conclusive against the accused appellant. Moreover, it was contended by the learned counsel for the appellant that it has come in the evidence of the witnesses that at the place where the body of Noorjahan, the deceased, was recovered several people had gathered at the time when the body was extracted and for the police to have taken only one particular footprint amongst all the footprints and that matches that of the accused who was arrested later is highly improbable and too much of a coincidence to be true. So far as the above contentions are concerned, we are not inclined to go into the aforesaid realm of conjectures for the simple reason that we find from the Exhibit P-5 that after the lifting of footprints there is no mention in Exhibit P-5, the memo, that the moulds were put in sealed condition and taken from the place where they were lifted or that they were sealed in the presence of the witnesses. We may add here that the report which was received from the Forensic Science Laboratory confirms the fact that the moulds were received in a packet which was unsealed. The relevant portion of the report reads as follows:-
DESCRIPTION OF PACKET(S) RECEIVED AND CONDITION OF SEALS The packet One in number, marked as E was properly sealed and the impression of the seals tallied with the specimen seal impression forwarded. The Moulds One in number, marked as A was received unsealed.
(Emphasis supplied.)
41. Thus in the face of the memo (Exhibit P-5) and the report of the FSL, the moulds were never sealed and, therefore, the statement of PW-5 Raghuveer Singh that the moulds were sealed cannot be relied upon. Thus, the fact that moulds were never sealed is sufficient to cast a doubt on the prosecution case and the possibility that the footprints were taken on the moulds after the arrest of the accused appellant cannot be ruled out in the totality of the circumstances of the case.
42. The last piece of evidence which has been considered against the accused appellant and relied upon by the prosecution is the recovery of piece of rope and piece of angle iron. So far as the piece of rope is concerned, as has been mentioned above, it was recovered from the place where the dead body was recovered after nine days when the dead body was recovered. It is most unlikely that the piece of rope which was found lying at the place where the dead body had been buried would have been allowed to remain there for nine days after the recovery of dead body, as is evident from Exhibit P-21 and was not noticed at the time the police went to recover the dead body or prepare the site plan. Even if, for the sake of arguments, it is accepted that the piece of rope was recovered from the scene of occurrence there is nothing to connect the same with the murder of the deceased, as PW-4 Dr. Meena Ahuja has categorically stated that the injury marks shown on the neck of the deceased at A to B in Exhibit P-13, the Post Mortem Report, could not have been caused by a rope. In that view of the matter, there is nothing to link the rope with the murder of the deceased and the prosecution has failed to establish any link of the piece of rope alleged to have been recovered at the instance of the accused with the alleged crime. In that view of the matter, the recovery of the rope is of no consequence in the facts and circumstances of the present case.
43. The other piece of evidence is the recovery of piece of angle iron vide Exhibit P-14 and is alleged to be the weapon of offence. The injuries as found in the Post Mortem Report (Exhibit P-13) on the deceased do not in any manner show that any of the injuries could have been caused by the alleged object recovered vide Exhibit P-14. A look at the Exhibit P-14 also shows that it has specifically been noted that there is no blood mark visible on the piece of angle iron. In view of the fact that neither the injuries mentioned in Post Mortem Report (Exhibit P-13) can be attributed to the said angle iron nor are there any blood marks on the article recovered. On the contrary the statement of PW-7 Dr.Raj Kumar Vijayvargiya who conducted the post mortem is that the injuries No.1 and 2 could not have been caused by any object such as lathi but could have been caused by applying pressure by the thumb or hand. The relevant portion of the statement reads as follows:-
''???? ?? ?? ???? ? ????? ?? ????? ????? ?????? ?? ??? ?? ?????? ????? ?? ? ???? ???''
44. In that view of the matter, the recovery of article angle iron vide Exhibit P-14, in the facts and circumstances of the present case, could not connect the accused appellant and the crime as it cannot be said that the said angle iron was the weapon of offence.
45. We are, therefore, of the opinion that the circumstance involving the recovery of piece of rope and angle iron at the instance of the accused could not be linked by the prosecution to the crime and the accused appellant.
46. In this case, though during the investigation, the clothes of the accused appellant were seized and sent for forensic examination, the report of the FSL has not been able to establish any link of the accused appellant with the alleged crime.
47. The prosecution initially had also filed challan agianst the accused appellant under Section 376 and 377 I.P.C. but the learned trial court has acquitted the accused appellant for the aforesaid offences and there is no State appeal against the judgment of acquittal of the accused appellant for the said offence under Section 376 and 377 I.P.C. In that view of the matter, we find a total absence of motive in the facts and circumstances of the present case.
48. In the facts and circumstances, therefore, we find that the circumstantial evidence relating to the evidence of last seen, lifting of footprint from the scene of occurrence and recovery of piece of rope and angle iron cannot lead to the only conclusion that it was the accused appellant who had committed the murder of deceased Noorjahan. The prosecution has failed to bring home the charge against the accused appellant and we are inclined to accept the appeal filed by the accused appellant and set aside the impugned judgment dated 02.11.2002 of conviction and sentence awarded by the learned trial court convicting the accused appellant under Section 302 and 201 I.P.C.
49. Consequently, D.B.Criminal Appeal No.1566/2002 is allowed. The accused appellant is acquitted of the charges. The accused appellant is in jail, he shall be released forthwith, if not required in any other case.
D.B.CRIMINAL JAIL APPEAL NO.1016/2006
50. In view of the fact that D.B.Criminal Appeal No.1566/2002 has been allowed, no separate judgment is required to be passed in the present jail appeal. The same stands covered and decided by the judgment passed in D.B.Criminal Appeal No.1566/2002. The jail appeal accordingly stands disposed of.
(K.S.CHAUDHARI),J. (DALIP SINGH),J. Solanki DS, Jr.P.A