Munna And Another vs State
2018 Latest Caselaw 3940 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 3
 
     CRIMINAL APPEAL No. 745 of 1987
 
Munnu and Ors.				-----	Appellant
 
Versus
 
State of U.P.					  -----	  Respondent 
 
And
 
CRIMINAL APPEAL No. 718 of 1987
 
Abbas Ali @ Laddoo			-----	Appellant
 
Versus
 
State of U.P.				           -----	Respondent 
 
_______________________________________________________________
 
For Appellant	            :             Sri Raj Kumar Sharma
 
For Respondent/State :             Sri Amit Sinha, learned, AGA  _______________________________________________________________
 
Hon'ble Pritinker Diwaker, J.

Hon'ble Umesh Kumar, J.

Per : Pritinker Diwaker, J.

1. As these two appeals arise out of the common judgment and order dated 07.03.1987 passed by Sessions Judge, Jaunpur, in Sessions Trial No. 77 of 1985 convicting and sentencing the appellants to undergo life imprisonment under Sections 302/34 of I.P.C.; to undergo life imprisonment under Section 364 of I.P.C.; to undergo three years rigorous imprisonment under Section 201/34 of I.P.C. and to undergo imprisonment for life under Section 120B read with Section 302 of I.P.C, they are being disposed of finally by this common order.

2. As per prosecution case, acquitted accused Anjum Fatima, wife of Aftab Ahmad, was having illicit relation with the accused Abbas Ali @ Laddu, who was a motor mechanic. It is said that accused Abbas Ali and Anjum Fatima were seen in compromising position by the deceased Firoz Hasan, aged about 12 years. After seeing Aftab and Anjum in the said position, the deceased Firoz Hasan told the acquitted accused Anjum that he would disclose the said fact to Aftab Ahmad and then it is said that conspiracy was hatched by the acquitted accused Anjum, Abbas and Munnu and deceased accused Akram with acquittted accused Aslam to eliminate Firoz Hasan.

3. Further case of the prosecution is that the deceased Firoz Hasan was taken by the accused persons to a different district i.e. P.S. Mubarakpur, District Azamgarh and there he was killed and the body was thrown in the bushes outside the town. On 26.08.1983, missing report exhibit Ka-1 was lodged by PW-1 Azhar Hasan, father of Firoz Hasan, informing the police that his son Firoz Hasan is missing since 20.08.1983. This missing report was registered by P.S. Kotwali, District Jaunpur.

4. On 23.08.1983, an unidentified dead body was found in a highly decomposed condition at P.S. Mubarakpur, District Azamgarh. Inquest on the said body was conducted vide exhibit Ka-6 on 23.08.1983 and as per the inquest report, most of the parts of the body were missing as the body was eaten by the dogs.

5. It has been further mentioned in the inquest report that body was unidentifiable. Postmortem on the dead body was conducted on 24.08.1983 vide exhibit Ka-10. However, the cause of death could not be ascertained.

6. It is further alleged that on 08.03.1984, extra judicial confession was made by the deceased-accused Akram before PW-2 informing him that he with the help of other accused persons have killed the deceased on 20.08.1983. On 08.06.1984, the full pant, seized from the unidentified body was identified by PW-1 Azhar Hasan, PW-2 Aftab Ahmad and one Sarfaraj to be that of deceased Firoz Hasan.

7. Further case of the prosecution is that three witnesses PW-3 Sri Ram, PW-4 Mohd. Ayub and PW-9 Mohd. Hasan had seen the deceased in the company of the accused persons. However, statement of these witnesses have been recorded after about seven months of the incident. FIR, exhibit Ka-2 was registered on 09.03.1984 against the accused persons under Sections 364, 302, 201 and 120B of I.P.C. While framing the charge, the learned trial Judge has framed the charge against the accused Munnu, Akram and Abbas Ali under Sections 302, 364, 120B and 201 of I.P.C. whereas against accused Anjum Fatima and Aslam, charge was framed under Sections 120B, 302, 201 of I.P.C. So as to hold the accused persons guilty, prosecution has examined eleven witnesses. Statement of accused persons were also recorded under Section 313 of Cr.P.C., in which they pleaded their innocence and false implication. By the impugned judgement, the trial judge has acquitted accused No. 1 Anjum Fatima and accused no. 2 Aslam, however, accused Munnu, Akram and Abbas have been convicted under Sections 302/34, 364, 201/34 & 120B of I.P.C. During pendency of this appeal, accused Akram has expired and, therefore, appeal in his respect stands abated and at present this Court is confining these appeals in respect of Munnu and Abbas.

8. Learned counsel for the appellants submits that:

1. The accused appellants have been convicted solely on the basis of circumstantial evidence but the nature of circumstantial evidence is so weak based on which the appellants cannot be convicted.

2. The chain of circumstantial evidence is not completed.

3. The dead body of the deceased has not been identified and merely on the basis of pant, allegedly seized from the dead body, it has been stated by the prosecution that the unidentified dead body of the deceased, which was highly decomposed, was of the deceased Firoz Hasan.

4. Even the dead body was not exhumed by the police authorities and they could have done so for conducting the DNA test and for further relevant evidence.

5. That the evidence of last seen, which is weak in nature in the present case, has not been proved by the prosecution because the witnesses to the same i.e. PW-3 Sri Ram, PW-7 Naseem Ahmad & PW-9 Mohd. Hasan have not supported the prosecution case and PW-4 Mohd. Ayyub is nothing but a hearsay witness to whom the incident has been informed by PW-9 Mohd. Hasan.

6. The evidence of extra judicial confession allegedly made by accused Akram before PW-2 is wholly unreliable as while making such statement, he was in a drunken condition.

7. On the same set of evidence, accused Anjum Fatima & Aslam have already been acquitted by the trial court and, therefore, under no stretch of imagination, the accused persons could have been convicted.

9. On the other hand, supporting the impugned judgement, it has been argued by the State counsel that the conviction of the appellants is in accordance with law.

10. Heard counsel for the respective parties and perused the material brought on record.

11. PW-1 Azhar Hasan is the father of the deceased. He has stated that the accused Anjum Fatima is the wife of his brother-in-law, Aftab Ahmad. His son went missing from 20.08.1983 for which a missing report was lodged on 08.03.1984. He was informed by Aftab Ahmad that the deceased has been killed and after seeing pant of his son, he informed the appellant that the said pant was of the deceased.

12. PW-2 Aftab Ahmad is the husband of the accused Anjum Fatima. He states that the deceased Feroz Hasan went missing and on 8.3.1984 he met with the accused Akram, who was in a drunken condition and was talking absurd and he was informed by him that Feroz Hasan had been killed. He has categorically stated that as Akram was so drunk he could not understand as to what he was saying. He informed the Magistrate that the pant shown to him was of the deceased but he never saw the deceased wearing the said pant.

13. PW-3 Sri Ram is witness of last seen and has turned hostile.

14. PW-4 Mohd. Ayyub is also witness of last seen. He has stated that about three years prior, he saw the accused persons alongwith the deceased in a train. It is relevant to note here that this witness has not disclosed even the date as to when he saw the deceased alogwith the accused persons.

15. PW-5 Mohd. Mustafa has stated that the accused Abbas Ali @ Laddu was having illicit relation with Anjum Fatima.

16. PW-6 Ashfaq Ahmad, PW-7 Naseem Ahmad, and PW-8 Shishir Kumar have not stated anything specific. PW-9 Mohd. Hasan is a witness of last seen and has turned hostile. PW-10 Rajnath is the Magistrate before whom the pant was identified by some of the witnesses saying that it was of the deceased. PW-11 Mahendra Narain Mishra is the Investigating Officer.

17. Close scrutiny of the evidence makes it clear that there is absolutely no legally admissible evidence against the appellants showing their involvement in the commission of offence and their conviction rests solely upon circumstantial evidence. The witnesses of the last seen have not supported the prosecution case and likewise the witnesses of extra judicial confession is not reliable because the said extra judicial confession was allegedly made by the accused Akram before PW-2 Aftab Ahmad, who has categorically stated that Akram was so drunk that he could not understand as to what he was saying. Most importantly, the dead body of the deceased was not identified by any one. Merely on the basis of pant, it has been stated that the said pant was of the deceased. The prosecution has not adduced any evidence that at the time of death, the deceased was wearing the said pant. The prosecution has not even bothered to exhume the dead body of the deceased for its identification or for conducting DNA test or other related advance test.

18. In Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra, (2008) 3 SCC 210 the Supreme Court while dealing with circumstantial evidence observed as under:

"11. In Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343], which is one of the earliest decisions on the subject, this court observed as under:

"10. ...... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

12. In Padala Veera Reddy v. State of A.P. [(1989) Supp (2) SCC 706], this court held that when a case rests upon circumstantial evidence, the following tests must be satisfied:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

13. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

(2) 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;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) 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.

19. Taking cumulative evidence of the witnesses, we are of the considered view that the trial court has erred in law in convicting the appellants.

20. Resultantly, the appeals are allowed. The impugned judgment dated 07.03.1987 is hereby set aside acquitting the appellants of the charges under Section 302/34, 364, 201/34 & 120B of I.P.C of IPC. The appellants are already on bail. Therefore, no further orders are required.

Order Date :- 26.11.2018

nethra/s.k.

                              (Umesh Kumar,J)          (Pritinker Diwaker, J)