Madhya Pradesh High Court
Ruda Khan @ Luda Khan vs State Of M.P. on 3 April, 2018
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
Cri.As. No.285/2007 & 478/2007
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(DB : VIVEK AGARWAL & G.S. AHLUWALIA, JJ.)
Criminal Appeal No.285/2007
Ruda Khan alias Luda Khan
v.
State of Madhya Pradesh
Shri Mahaveer Pathak, learned counsel for the appellant.
Shri B. K. Sharma, learned Public Prosecutor for respondent-
State.
Criminal Appeal No.478/2007
Firoz Khan
v.
State of Madhya Pradesh
Shri A. K. Jain, learned counsel for the appellant from Legal Aid.
Shri B. K. Sharma, learned Public Prosecutor for respondent-
State.
Date of hearing : 24.03.2018.
JUDGMENT
(Delivered on 3rd April, 2018) Per Vivek Agarwal, J.
These criminal appeals have been filed by the appellants under the provisions of Section 374 of the Criminal Procedure Code (for short 'Cr.P.C.') after being convicted by the Court of Additional Judge to the Court of Additional Sessions Judge (Fast Track), Gwalior, in Sessions Case No.104/2006 vide judgment dated 14.03.2007 convicting the appellants under Section 302 read with 34 of the Indian Penal Code (for short 'IPC') and sentencing them for life imprisonment with fine of Rs.1,000/-. They have also been convicted under Section 201 of IPC and sentenced for 07 years' rigorous imprisonment with fine of Rs.1,000/-; in default of payment of fine for each of the offences separately, they were to undergo two years rigorous 2 Cri.As. No.285/2007 & 478/2007 imprisonment.
2. On 24.03.2018, when both these appeals have been heard, another connected Criminal Appeal No.299/2007 filed on behalf of accused Lakhan Kushwah Son of Balkishan Kushwah has been withdrawn by his counsel and the same has been dismissed by recording separate ordersheet as withdrawn. Therefore, this order deals with only two criminal appeals respectively filed by Ruda Khan alias Luda Khan son of Shri Nanhe Khan and Firoz Khan son of Shri Ahmed Khan.
3. Prosecution story in short is that accused persons Firoz Khan, Ruda Khan alias Luda Khan and Lakhan Kushwah were accused of committing murder of Baijad son of Shahzad Khan in the intervening night of 21st-22 nd January, 2006 at the house of Lakhan Kushwah alongwith absconding co-accused Chaiya Khan and Shekhu alias Iqabal and further with an intention to remove the evidence, they had thrown the dead body of deceased Baijad on the plot of Kuldeep Singh Senger. They were charged under the provisions of Section 302 in the alternative under Section 302/34 in the alternative under Sections 302/149, 148, 201 of IPC and Section 25 (1) (1-B) (a) of the Arms Act.
4. On 22.01.2006, PW16 Kuldeep Singh Senger saw a person lying in his plot boundary situated at Gol Pahadiya behind Ganesh Temple adjacent to Raja Gas Godown when he had called his neighbourers. They discovered that the body was lying in a blood pool and there were several stab wounds of a knife on the chest, stomach and region of the ear. The body was medium built, single frame having whitish colour and aged about 35 years. Body was not recognized immediately, but when trail of blood was traced, then it was traced upto the 3 Cri.As. No.285/2007 & 478/2007 house of Lakhan Kushwah. Lakhan Kushwah was not found at his residence, but his room was open and blood stains were found in his room. On the basis of such exploration, Kuldeep Singh Senger (PW16) alongwith his neighbourer Prem Singh Parmar had lodged a report at 08.45 A.M. at Police Station Janakganj, which is Ex.P/13. This report was recorded by ASI Lal Singh Bhagel (PW9) against unknown persons and marg was also recorded vide Ex.P/14.
5. Station House Officer, Janakganj, Ravi Garg (PW17) started investigation on the same day and at about 10.40 AM prepared spot map (Ex.P/2) in front of Kuldeep Singh Senger (PW16) and Prem Singh Parmar (PW1). Blood spots were traced, blood stain soil and knitting rope of the Cot containing blood stains were sealed and seizure memo (Ex.P/5) was prepared. Another spot map, where the dead body was lying, was prepared as Ex.P/3. Naksha Panchnama was prepared vide Ex.P/4 in front of Kuldeep Singh Singer (PW16) and his neighbourers. Fourteen wounds were found on the dead body in the stomach and chest region caused by sharp cutting weapon. On the basis of examination of the body because of circumcision of the private part, it was reported to be that of a Muslim gentleman. Body was sent for post-mortem to identify the person, whose body was found, photograph (Ex.P/9) was taken and was published in the newspaper.
6. On 23.01.2006, the dead body was identified by the paternal uncle of deceased Sher Khan as that of Baijad Khan son of Shahzad Khan, aged about 25 years. Post-mortem report (Ex.P/33) was obtained, which disclosed 19 ante-mortem wounds on the body and attributed shock and excessive loss of 4 Cri.As. No.285/2007 & 478/2007 blood as the cause of death, which was termed to be homicidal.
7. Statements of mother of the deceased Anisa Begum (PW2), brother Rinku (PW3), brother-in-law Ishaq Khan (PW14) were recorded, which reveal that on 21.01.2006 at about 5.00 PM, Firoz Khan, Ruda Khan and Chaiya Khan had taken the deceased with them and thereafter on 23.01.2006, the dead body of the deceased was found. PW2 Anisa Begum revealed in her police case diary statement that her son had informed her about his dispute with the accused party.
8. On the basis of the aforesaid investigation, Firoz Khan and Ruda Khan were arrested on 29.01.2006. Arms, namely, katar and knife were recovered on their identification vide Ex.P/23 and Ex.P/24 respectively and similarly on 02.02.2006, accused Lakhan Kushwah was arrested and on his identification, a knife in the shape of Katar was recovered vide seizure memo (Ex.P/22).
9. After making such recovery, reports (Exs.P/31 and 32) were obtained from Regional Forensic Science Laboratory. As per Ex.P/31, no poison was found in the viscera of the deceased. As per report (Ex.P/32), human blood was found on the shoes and clothes of the deceased from E-1 to E-6 grouping of which was AB. Similarly, blood group of the stains found on the rope of the Cot and blood stains soil recovered from the house of Lakhan Kushwah was also found to be of blood group AB. It was also reported that except Article-B soil, blood stains were found on the clothes and weapons of Firoz and Ruda so also on Lakhan, but such marks were disintegrated and blood was insufficient on the clothes of Firoz and Ruda so that grouping could not be done.
5Cri.As. No.285/2007 & 478/2007
10. After investigation, chargesheet was filed. Since accused Chaiya alias Sattar, Shekhu alias Iqbal were absconding, chargesheet was filed in their absence under Section 299, Cr.P.C. Matter was committed to the Court of Session. Two issues were framed whether death of Baijad was homicidal and secondly whether Baijad was murdered in the intervening night of 21-22nd January, 2006 by the named accused persons and in the alternative whether in pursuance of common intention, the accused persons alongwith the absconding accused Chaiya and Shekhu alias Iqbal committed murder of the deceased and in the alternative whether the murder of the deceased was carried out by the named accused and the absconding accused in pursuance of common intention. The issue was also framed as to whether the named accused persons tried to remove the evidence and had accordingly thrown the dead body on the plot of Kuldeep Singh Senger. Another charge was whether an unlawful assembly was formed to commit murder and had caused nuisance armed with the weapons. A charge was also framed that whether the accused persons were keeping arms in violation of the provisions of the conditions of the licence and the terms and conditions of the State Government for keeping arms.
11. Learned Sessions Court has convicted all the three accused persons under the provisions of Sections 302/34 and 201 of IPC sentenced them for life imprisonment and 07 years' R.I. with fine of Rs.1,000/- each under both the heads and in default of payment of fine, two years' R.I., but acquitted them under the provisions of Section 148 of IPC and Section 25-A (1- B) (A) of the Arms Act.
6Cri.As. No.285/2007 & 478/2007
12. On behalf of appellant Ruda alias Luda Khan and Firoz Khan, it is submitted that they have been falsely implicated and have been convicted on the basis of theory of last seen, whereas that theory is not applicable inasmuch as PW2 Smt. Anisa Begum has admitted that the theory of last seen will not be applicable inasmuch as the deceased had returned back to his home after being taken by accused Ruda Khan and Firoz Khan and thereafter he had gone to his material uncle Munna, therefore, only on the basis of theory of last seen, they cannot be convicted.
13. Learned Public Prosecutor, on the other hand, has drawn attention of this Court to the statement PW3 Rinku to point out that the theory of last seen has been rightly applied by the learned Sessions Court and the learned Sessions Court has rightly convicted the accused persons, therefore, no interference is called for in the impugned judgment.
14. Learned counsel for the appellants Shri Mahaveer Pathak and Shri A. K. Jain submits that on perusal of the impugned judgment, conviction of the appellants has been recorded on the basis of circumstantial evidence, but as per the law laid down by the Hon'ble Supreme Court in the case of Kansa Behera v. State of Orissa as reported in AIR 1987 1507 so also the law laid down by the Hon'ble Supreme Court in the case of Raghunath v. State of Haryana with Ramkishan & Others v. State of Haryana & Another as reported in AIR 2003 SC 165, the case is to be proved beyond doubt, failing which the accused are entitled to acquittal.
15. The ratio in the case of Kansa Behera (supra) is that it is settled rule of circumstantial evidence that each one of the 7 Cri.As. No.285/2007 & 478/2007 circumstances has to be established beyond doubt and all the circumstances put together must lead to the only inference and that is of the guilt of the accused. It has been further held that as far as recovery of clothes and weapon is concerned, the report of FSL did not show matching of the blood group on the clothes of the accused and the weapon so recovered from the accused with that of the deceased and the evidence of blood group is not conclusive to connect the blood stains with the deceased. In absence of such evidence, this could not be a circumstance, on the basis of which any inference can be drawn. It has been further held that the only circumstance, which could be said to have been established, is of the appellants being with the deceased in the evening and on that circumstance alone, the inference of guilt could not be drawn especially in the circumstances of the case where another accused person from whom an instrument of evidence was recovered and who had a grudge against the deceased, had been let off. It is submitted that there is material omission and contradiction in the evidence of the prosecution witnesses and, therefore, the chain of circumstances pointing towards the guilt of the appellants is not complete and, therefore, they are entitled to be acquitted. It is also submitted that in fact though the appeal had been withdrawn for accused Lakhan Kushwah, but the fact remains that all the circumstances were indicating towards Lakhan Kushwah not towards the appellants.
16. In this backdrop, the evidence, which has come on record, is to be appreciated.
17. FIR (Ex.P/13) was recorded against unknown persons at the instance of Kuldeep Singh Senger (PW16) who is a Primary 8 Cri.As. No.285/2007 & 478/2007 School Teacher and has mentioned in his statement that when he noticed a body on his plot, he had given intimation to the neighbourers, and several people had collected at the place, he had telephoned the Police, the Police had come on the scene of occurrence, then at the insistence of the Police, he had gone to the Police Station alongwith his uncle Prem Singh and FIR (Ex.P/13) was recorded. He also supported Panchnama (Ex.P/3), but submitted that Naksha-a-mauqa of the house of Lakhan Kushwah was not prepared in front of him. He further submits that no seizure was made in front of him by the Police though his signatures are there on the seizure memo. In his cross-examination, he has categorically mentioned that around 200-250 people had accumulated at the scene of crime; when the Police had arrived, the Police had obtained signatures on several blank papers and the Police had not read over anything to him and had written words on their own.
18. Similarly, Prem Singh (PW1), who is the author of the FIR, has categorically mentioned in his statement that at the instance of Kuldeep Singh Senger, who is the neighbourer, he had seen a dead body, at that time, other neighbourers Devendra, Mukesh and Vinod were also standing and the dead body was flat on the abdomen. Nearly after half an hour, the Police had come when the Police had sent him to the Police Station for lodging of FIR. This witness was declared hostile and he clearly deposed that he did not know Lakhan Kushwah. He denied his case diary statement. He submitted that he had not seen the person whose dead body was lying on the vacant plot. He denied that they had seen any trail of blood from the place where the body was lying to nobody's house. He also 9 Cri.As. No.285/2007 & 478/2007 admitted that certain blank papers were signed in the Police Station.
19. PW2 Smt. Anisa Begum deposed that she had 05 children, out of which one was Baijad Khan, who has been murdered. She deposed that at about 6.00 AM, Chaiya and Firoz had visited her house to call Baijad. She further identified Firoz and Ruda alias Luda and deposed that they had hurled abuses at her residence and threatened that if money is demanded, then they shall kill Baijad. On the same day at about 11.00 AM, there was verbal duel between Baijad and Chaiya. Then she submitted that on the same day at about 4.00 PM on Saturday, first Ruda visited her house, then Firoz came to call Baijad and they had informed Baijad that Chaiya is calling him. Then Baijad had gone with them. He had returned back about 6.00 PM and had again left saying that his friends are sitting at Chungi and he is going to his maternal uncle Munna's place. He did not return in the night and she was waiting for him. She thought that since Baijad had gone to her maternal uncle's place, therefore, he must have stayed there and he will come back. She had visited the house of Firoz on 2-3 occasions, but his mother informed her that Firoz was out to Dabra. Then she read about dead body in the newspaper and had gone to see the dead body, where she identified the dead body. She further submitted that her son Baijad has been murdered by Chaiya, Firoz and Shekhu because they had threatened him. She admitted that the news was published in the newspaper after his murder that he was involved in many cases of burglary at Jaipur and Gwalior, but submitted that this news was published by Shekhu and Chaiya. She admitted her relationship with Ruda 10 Cri.As. No.285/2007 & 478/2007 that he is maternal nephew of her brother-in-law Sher Khan. She admitted that her son had come back in the evening at 6.00 PM. She further admitted that her son was sentenced for 10 years' imprisonment in a case under Section 307 of IPC.
20. Rinku (PW3), brother of Baijad, deposed that in the evening Firoz, Ruda and Chaiya had taken Baijad in a taxi and thereafter his brother never returned back. This is contradictory to the statements given by PW2 Anisa Begum, the mother of Baijad. He has admitted that Luda is maternal nephew of his paternal uncle Sher Khan (PW12). There was no dispute with Luda. In fact, the dispute was with Chaiya. He further admitted that when his brother-in-law had read news about death of his brother, then only he had come to know that since when his brother was missing from the house. He further admitted that he had seen his brother going alongwith the accused persons from Chungi because he works at Chungi. On the contrary, he has mentioned in his examination-in-chief that three persons had taken his brother Baijad in a taxi from his residence. He has further denied that he had not given this intimation to the Police that last he had seen his brother going alongwith the accused from Chungi. Thus, this story of PW3 Rinku that he had seen his brother going in a taxi with the accused persons at Chungi from his own shop is an improvisation from the statement recorded in Ex.D/2 on 24.01.2006. He has admitted in his cross-examination that when he had gone alongwith Janakganj Police to see the dead body, he had not informed the Police that his brother was, for the last time, taken by the accused persons. He has also admitted in his cross-examination that there was no enmity with Firoz and he was visiting their house regularly.
11Cri.As. No.285/2007 & 478/2007
21. PW10 and PW15 namely, Guddu alias Dinesh and Devendra Pachori are witnesses of the seizure.
22. PW10 Guddu has been declared hostile and did not recognize the accused persons Firoz and Luda. He denied that he had signed on Ex.P/15 and Ex.P/16 at the instance of the Police and he had no information as to what is written in it. He further admitted that his signatures were obtained close to Gas Godown by the Police. He had not visited the Police Station. He denied giving any information by accused Luda Khan that Luda, Firoz, Chaiya, Lakhan Kushwah and another accomplice had killed Baijad inside the house of Lakhan Kushwah. He has specifically denied that no such information was given to the Police by Luda Khan. He further denied that no seizure was made of the Katar from Jinnaton-ki-Pahadia at the instance of Luda Khan. Similarly, he denied that Firoz Khan had given any statement that alongwith Chaiya, Lakhan Kushwah and Luda, they had murdered Baijad Khan and had thrown the dead body on a vacant plot.
23. Similarly, PW15 Devendra Pachori has though admitted that Ex.P/15 and Ex.P/16 were recorded in front of him, but in cross-examination, he admitted that accused persons were tortured and beaten when such statements were given. He further denied to visit Jinnaton-Ki-Pahadia for the purpose of seizure. He admitted that he is a milkman who often visits the Police Station and the localities adjacent to the Police Station to distribute milk. He has further admitted that he denied timings of the Panchnama to be 11.55 and 11.40. He further admitted that he had never read this Panchnama and was not mindful of the fact that on which papers his signatures were obtained.
12Cri.As. No.285/2007 & 478/2007
24. PW12 Sher Khan has admitted that at the time of handing over of the dead body, the Police had obtained his signatures on some documents, he was declared hostile. He denied that any intimation was given by accused Lakhan Kushwah that he and his accomplices Firoz Khan, Ruda alias Luda Khan, Chaiya alias Sattar Khan and Shekhu had committed murder of Baijad Khan. He denied making of any seizure of arm in front of him. He further admitted that he is not aware as to the contents of the papers on which his signatures were obtained.
25. Admittedly, there are no eye-witnesses to the incident.
26. PW18 Dr. J.N. Soni, Professor of Forensic Medicine Department, G.R. Medical College, Gwalior had conducted post- mortem on 23.01.2006 at 12.10 Noon. He had found as many as 19 injuries on the body of the deceased and the cause of death was excessive bleeding and shock. He opined that the death was homicidal. He further opined that the death was caused within 6-24 hours of the post-mortem. He further admitted that he was not shown any of the weapons recovered to corroborate the nature of the injuries and whether such injuries could have been caused by such weapon or not.
27. PW17 Ravi Garg is the Investigating Officer of the matter and he was posted as SHO on the relevant date. He has admitted that newspaper publication was made in relation to an unknown body. He had recorded thereafter statements of Devendra Kumar, Mukesh Kumar Son of Laxmi Narayan, Smt. Sadhna Singh Parmar, Jugal Kishore, Vinod Kumar, Smt. Ganga Bai Batham and Kuldeep Singh Senger as they were given to the Police. He admitted to have prepared memo Ex.P/21 and Ex.P/22. Ex.P/21 is the memorandum of Lakhan Kushwah and 13 Cri.As. No.285/2007 & 478/2007 Ex.P/22 is seizure memo dated 03.02.2006. Similarly, Ex.P/15 is the memorandum under Section 27 of Firoz Khan and Ex.P/16 is the memorandum under Section 27 of accused Ruda Khan alias Luda Khan. He admitted that he had not taken help of Dog Squad or the Sniffing Dog to ascertain identity of the accused and to trace the blood trail. He further admitted that the place from where knife was recovered is an open place. He also admitted that in Ex.P/22, Panchnama, there is no mention of sealing the knife by placing it in a cloth. He has further admitted that PW3 Rinku while giving his case-diary statement (Ex.P/2) had not informed him that he had gathered information from the newspaper about recovery of blood stains from the house of Lakhan. He had also not informed about threat from the accused demanding money, failing which they will commit murder of Baijad Khan. He further admitted that PW3 Rinku in his case-diary statement (Ex.D/2) neither informed about any threat nor his spotting Baijad with Chaiya and Firoz at 6.00 PM. PW3 Rinku had also not given statement that he had last seen Baijad with the accused persons or had seen Baijad going with the accused in a taxi towards Bahodapur. He admitted that even PW3 Rinku had not given statement that when the accused had taken his brother. On that day, Firoz and Chaiya had visited their house and had threatened on the issue of demand of money. This statement contradicts the testimony of PW3 Rinku. He also admitted that the place, from where knife was recovered at the instance of Firoz, was an open space and he has not mentioned in his seizure memo as to how he had sealed and wrapped the knife. Similar facts have been admitted in relation to accused Ruda. He admitted that he gathered information about Ruda 14 Cri.As. No.285/2007 & 478/2007 from an informant whose name is not known to him and in regard to whom he had not prepared any Panchnama.
28. Learned Sessions Court has dealt with different aspects of circumstantial evidence and has recorded a finding that the statements of PW2 Anisa Begum, PW3 Rinku and PW14 Ishaq Khan though have contradictions, but looking to their job profile and the fact that they belong to lower strata of the society, such contradictions cannot be ignored.
29. In fact, all the 12 aspects to connect the accused persons with the crime on the basis of circumstantial evidence, namely, accused persons having taken Baijad on 21.01.2006, dispute of Baijad with them, recovery of blood soaked body from the plot of Kuldeep Singh Senger, blood trail from the house of Lakhan Kushwah to that of plot of Kuldeep Singh Senger, availability of blood stains in the room of Lakhan and on the Cot of Lakhan and the corroboration of blood group of the deceased with the blood stains found in the house of Lakhan and in the Cot found in the house of Lakhan, absconding act of Firoz, matching of blood group of the blood stains found on the body of the deceased and one recovered from the room and Cot in the room of Lakhan and recovery of weapons from Ruda, Firoz and Lakhan on their identification, at the most points out guilt of Lakhan against whom the appeal has already been withdrawn.
30. The fact of the matter is that PW2 Anisa Begum has categorically mentioned that her son was taken by Firoz and Ruda and thereafter he had returned back home and thereafter had left the home on his own at 6.00 PM to visit his maternal uncle Munna. Learned Sessions Judge has also not taken into consideration any fact of the blood stains on the weapons 15 Cri.As. No.285/2007 & 478/2007 recovered from Ruda Khan vide seizure memo Ex.P/23 and Firoz Khan vide seizure memo Ex.P/24. These recoveries were made in presence of PW14 Ishaq Khan and PW12 Sher Khan, who are respectively brother-in-law and paternal uncle of the deceased and cannot be termed as independent witnesses. This recovery was made from an open space at Jinnaton-ki-Pahadia, Bahodapur and these weapons were not sealed properly as has been admitted by PW17 Ravi Garg, Investigation Officer of the case. FSL reports Exs.P/31 and P/32 reveal that blood stains on Article-K Katar seized from Ruda and Article-I knife seized from Firoz contained some rust like brown material, but such spots on the recovered arms were disintegrated and were not sufficient to form any opinion and, therefore, no information was given as to whether they contained the blood group of the deceased or not.
31. One of the witnesses to the seizure PW12 Sher Khan was declared hostile. He denied seizure of any knife from accused Firoz Khan or from Ruda Khan. He further admitted that the Police had obtained his signatures on the blank papers.
32. The fundamental principle of Criminal Jurisprudence is that the onus of proof is entirely on the prosecution and a man must be presumed to be innocent until he is proved to be legally guilty beyond doubt and if there is any doubt at all he must be given benefit of doubt and acquitted although greatest suspicion may exist against him.
33. The first circumstance, which has been pointed out by the learned Sessions Court that accused Firoz, Ruda alias Luda had taken Baijad on 21.01.2006, is not solely reliable inasmuch as, as per the evidence of PW2 Anisa Begum, he had returned back 16 Cri.As. No.285/2007 & 478/2007 home at about 6.00 PM, after being taken. There is no independent evidence to corroborate the statement of PW2 Anisa Begum that there was past dispute between the accused persons. In fact, she has admitted that there was no dispute with Ruda Khan and Firoz Khan and the dispute was only with Chaiya Khan. Therefore, this circumstance as is evident from the evidence of PW2 Anisa Begum, appears to have been overlooked.
34. It is true that the dead body of Baijad was found on the plot of Kuldeep Singh Senger on 22.01.2006 and there was a trail of blood spots from the plot of Kuldeep Singh Senger to the house of Lakhan Kushwah and the house of Lakhan was open and the blood stains were found on the Cot, but that does not point out the guilt of the present appellants, namely, Ruda Khan alias Luda Khan and Firoz Khan. Merely because Firoz and Lakhan were absconding cannot by implication be permitted to indict Firoz and Ruda because there was neither any blood trial nor there was matching of blood group on the clothes recovered from Firoz an Ruda and so also from the knife and Katar recovered from Firoz and Ruda alias Luda Khan. Merely presence of blood stains on the Cot can at best be used as evidence against Lakhan and not against Firoz and Ruda. As per FSL report, if blood group AB was found on the clothes and shoes of the deceased so also from the room and Cot lying in the house of Lakhan that itself is not sufficient to indict the present appellants inasmuch as the blood group was disintegrated and the weapons namely knife and Katar, recovered from an open area, were not properly sealed and in view of the statement given by PW12 Sher Khan, such recovery 17 Cri.As. No.285/2007 & 478/2007 from the open space also becomes doubtful and further no finger print matching was carried out and the theory of last seen has to be discarded in view of the evidence given by PW2 Anisa Begum and PW17 Ravi Garg, IO, contradicting the statement given by PW3 Rinku in regard to last seen. Therefore, the totality of the evidence available in the matter is not sufficient to hold that there was a group rivalry between the deceased and Ruda Khan and Firoz Khan. No motive has been attached to Ruda and Firoz in regard to whom PW2 Anisa Begum has deposed to have had normal relationship and rivalry being only with absconding accused Chaiya. Therefore, looking to the fact that the prosecution evidence consists of interested or inimical witnesses, this fact gathers further significance that weapons seized at the instance of the accused were not subjected to exhibition before PW18 Dr. J.N. Soni to solicit his response where such weapons could have caused injuries as were sustained by the deceased.
35. Thus, in the light of the law laid down by the Hon'ble Supreme Court in the case of Raghunath v. State of Haryana (supra) and Kansa Behera (supra), this Court is of the opinion that the circumstantial evidence alone was not sufficient, but the learned Sessions Court was required to also appreciate that whether there was a common intention between the accused persons to have committed such act especially when PW2 Anisa Begum has categorically deposed that there was no rivalry between the deceased and the present appellants. In fact, Ruda was related to the deceased. Thus, so as to prove a circumstantial evidence, well settled law is that for conviction on circumstantial evidence, the following conditions 18 Cri.As. No.285/2007 & 478/2007 must be fulfilled :-
i) the circumstances from which the conclusion of guilt is to be drawn, should be fully established and not "may be"
established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved";
ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
iii) the circumstances should be of a conclusive nature and tendency;
iv) they should exclude every possible hypothesis except the one to be proved; and
v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
36. In fact, the Hon'ble Supreme Court has in the case of Naresh Kumar v. State of Maharashtra as reported in AIR 1980 SC 1168 held that the circumstances in question must be satisfactorily established and the proved circumstances must bring home the evidence to the guilt of the accused beyond all reasonable doubt. However, these circumstances can be explained by any reasonable hypothesis, then the accused must have the benefit of the hypothesis.
37. Recently Hon'ble Supreme Court in the case of Vasant Sampat Dupare Vs. State of M.P. as reported in (2015) 1 19 Cri.As. No.285/2007 & 478/2007 SCC 253 has reiterated five golden principles which have been stated to constitute the 'Pansheel' of the proof of the case based on circumstantial evidence and in the case of Nagaraj Vs. State represented by Inspector of Police, Salem Town, Tamil Nadu as reported in (2015) 4 SCC 739, the Hon'ble Supreme Court has held that if there are inconsistency in the case of prosecution and various witnesses gave contradictory statements as in the present case where there is contradictions in the statements of P.W.2, P.W.3 and P.W.14 and also finger prints were not lifted from the scene, then failure of the prosecution to prove the case beyond reasonable doubt would result in acquittal.
38. In case of Vijay Shankar Vs. State of Haryana as reported in (2015) 12 SCC 644, the Hon'ble Supreme Court has held that in a murder trial case based on circumstantial evidence where prosecution relied on the circumstances of the motive; last scene theory; extra-judicial confession and recovery of blood stained clothes and knife, circumstances not proved beyond reasonable doubt, conviction was reversed. In the present case, no motive has been attributed to the present appellants. Last scene theory has been contradicted by P.W.2 and there is no extra-judicial confession. There is no matching of blood group on the blood stained clothes of the accused and the weapons recovered from the accused. Therefore, conviction on the basis of circumstantial evidence not proved.
39. It is also settled law that conjectures or suspicion cannot take place of legal proof. Though mind sways to overreach and mislead itself to establish a theoretical link that may be wanting, but since the law is clear that suspicion and conjectures cannot 20 Cri.As. No.285/2007 & 478/2007 take place of legal proof, therefore, in absence of any legal proof, showing involvement of present appellants Firoz and Ruda and also the fact that the theory of last seen has not been conclusively proved and there are several holes in such story as has been put forth by PW3 Rinku and contradicted by PW2 Anisa Begum and PW17 Ravi Garg, IO, the accused are entitled to the benefit of doubt and deserves to be acquitted and are hereby acquitted from the charges under Sections 302 read with 34 and 201 of IPC.
40. Appellant Ruda Khan is on bail vide order dated 02.04.2008 when his jail sentence was suspended. It is also informed that appellant Firoz Khan was also on bail vide order dated 11.04.2008 till April 2017 and thereafter is lodged in jail in another case.
41. In view of the aforesaid since the appellants have been acquitted in the present case, they be released forthwith from jail, if they are not required in any other case, and their bail bonds be discharged.
(Vivek Agarwal) (G.S. Ahluwalia)
Judge Judge
03.04.2018 03.04.2018
Mehfooz/-
Digitally signed by MEHFOOZ AHMED
Date: 2018.04.04 12:42:31 +05'30'