Guddu Alias Haseeb Khan vs State Of U.P.
2019 Latest Caselaw 3063 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on : 14.03.2019
 
Delivered on : 17.04.2019
 
Court No. - 34
 

 
Case :- JAIL APPEAL No. - 45 of 2016
 

 
Appellant :- Guddu Alias Haseeb Khan
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Avinash Jaiswal,Avinash Jaiswal A/C,Avinash Jaiswal Ac,Sandhya Singh A. C.
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Rajendra Kumar-IV,J.

(Delivered by Hon'ble Rajendra Kumar-IV,J.)

1. Present jail appeal has arisen from judgment and order dated 17.06.2015 passed by Additional Sessions Judge / F.T.C., District Kannauj in Session Trial No.261 of 2012 (State Vs. Guddu @ Haseeb Khan Crime No. 198 of 2012) under Section 302 IPC, Police Station Tirwa, District Kannauj whereby Trial Court has convicted the accused Guddu @ Haseeb Khan and sentenced him to rigorous imprisonment for life with a fine of Rs.25,000/- under Section 302 IPC and in default of payment of fine, further imprisonment of six months.

2. Prosecution story in brief is that P.W. 1 presented a written Tehrir Ex.Ka-1 getting it scribed by one Kitabuddin in police Station Tirwan on 9.6.2012 alleging therein that his nephew Guddu (accused) was working as labour in Mohalla Hamalipura and living in Kannauj with his family, sometime used to visit the village and tell that he was a poor man and not in a position to marry two daughters due to his poverty and he would finish them.

3. Ex-Ka-1 further recites that On 8.3.2012 accused Guddu came to house with his daughter Khushnuma aged about 9 years and Sawa Parveen aged about six years from Kannauj, stayed in the house in the night and on 9.6.2012 he, along with her daughter Khushnuma and Sawa Parveen, went at about 7 in the morning by saying that they were going to Tirwan. After three hours, he came back to house without his daughters and started washing his blood stained hands. P.W.-1 inquired about daughters whereupon he (accused) told that he has killed both of them by Basuli (Brick Cutter) in the corn field near one Jalees and saying so he ran away from house P.W. -1 went to spot and saw dead bodies of two girls (daughters) lying there.

4. On the basis of written Tehrir Ex.Ka-1 a chick F.I.R was registered by Constable clerk Pati Ram as being case Crime No. 198 of 2012 and entry of case was made by him in General Diary No. 24 at 11:15 a.m., same day, in police station concerned.

5. Under the direction of Investigating Officer, P.W.-9 S.I. Harnath Singh held inquest over the dead body of Km. Khushnama aged about 9 years and Km. Sawa Parveen aged about 6 years, prepared inquest report Ex.Ka-3 and Ex.Ka-2, respectively, and prepared other relevant papers thereto. Dead body of both the deceased were duly sealed and sent to District Hospital, Kannauj for post mortem.

6. P.W. 7, Dr. C.P. Singh, conducted autopsy over the dead body of Km. Sawa Parveen and Km. Khushnuma, prepared post mortem report of Sawa Parveen Ex. Ka-9 and post mortem report of Khushnama Ex.Ka-10.

7. P.W.-8 Inspector Khursheed Ahmad commenced investigation, visited spot and prepared site plan, Ex.Ka-11; collected Blood stained and simple earth, cloths and sleepers from spot and prepared their recovery memo as Ex.Ka-4, Ex.Ka-5, Ex.Ka-6 and Ex.Ka-7; traced out accused Guddu; and apprehended him at about 2:00 p.m. On being inquired accused Guddu admitted his guilt and on his information, recovered Basuli (Brick Cutter) from corn field before Jalees Ahmad and Kitabuddin. Recovered Basuli (Brick Cutter) was duly sealed and recovery memo Ex.Ka-8 was prepared by S.I. B.K. Saxena under the dictation of P.W.-8 Khursheed Ahmad. P.W.-8 prepared site plan of spot Ex.Ka-12 from-where recovery was made. Thereafter, completing entire formalities, P.W.-8 submitted charge sheet Ex.Ka-13 against the accused under Section 302 I.P.C.

8. Case being exclusively triable by Court of Session, after making compliance under section 207 Cr.P.C. was committed to the Court of Sessions for trial. The Sessions Judge framed charge against accused under Section 302, which reads as under :-

आरोप

"मैं मोहम्मद बाबर सत्र न्यायाधीश, कन्नौज आप अभियुक्त गुड्डू उर्फ हसीब को निम्न आरोप से आरोपित करता हूँ।

1- यह कि दिनांक 09.06.2012 को समय करीब 7:00 बजे सुबह स्थान मक्का के खेत जलीश चक्की वाले ग्राम सुजान थाना तिर्वा के क्षेत्राधिकार जिला कन्नौज में अभियुक्त ने अपनी पुत्रियों खुशनुमा उम्र 9 वर्ष व सवापरवीन उम्र 6 वर्ष की लोहे की बसूली से मारकर मृत्यु कारित करने के उद्देश्य से साशय हत्या कर दी। इस प्रकार आपने धारा 302 भारतीय दण्ड संहिता के अन्तर्गत दण्डनीय अपराध कारित किया जो सत्र न्यायालय के संज्ञान के अन्तर्गत है।

आप, अभियुक्त को पढ़कर सुनाया व समझाया गया। अभियुक्त ने आरोपों को इन्कार करते हुये विचारण की मांग की।

C H A R G E

I, Mohd Babar, Sessions Judge, Kannauj, charge you, accused Guddu alias Haseeb, as under:

1. That on 09.06.2012, at around 7 am, in the maize field of Jaleesh chakki wala at village Sujan under jurisdiction of P.S. Tirwa, Distt Kannauj, you , the accused, with the intention to kill your daughters Khushnuma, aged 9 years, and Sabaparveen, aged 6 years, gave blows with iron basuli (a kind of sharp-edged weapon) and intentionally caused their deaths, thereby committing an offence punishable under section 302 IPC which is within the cognizance of Sessions Court.

The charges were read over and explained to you, the accused. Accused pleaded not guilty and prayed for trial.

(English Translation by Court)."

9. Accused-appellant denied charges levelled against him and claimed trial.

10. To prove its case, prosecution examined PW-1 Jamiwar, PW-2 Ibrar Khan, PW-3 Rafi Mohd son of Ali Saraj, PW-4 Rafi Mohd. son of Lal Mohd., PW-5 Parvez Alam, PW-6 Kitabuddin, PW-7 Dr. C.P. Singh, PW-8 Khursheed Ahmad and PW-9 Harnath Singh and P.W. 10 Brij Kishore Saxena in oral evidence as well documentary evidence. P.W. 1 and P.W.-5 are witnesses of fact, rest are formal witnesses.

11. On closure of prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded by the Court explaining all incriminating other evidences and circumstances. Accused denied prosecution case in toto and all formalities of investigation were said to be wrong, claimed false implication on account of enmity. He did not adduce any evidence.

12. Ultimately, Sessions Trial came to be heard and decided by Additional Sessions Judge / F.T.C., Kannauj.

13. After hearing counsel for the parties and analyzing entire evidence led by prosecution on record, Trial Court has found appellant guilty and convicted him as stated above. Feeling aggrieved with impugned judgement and order of conviction, present appeal has been filed from Jail.

14. We have heard Sri Avinash Jaiswal, Advocate (Amicus Curiae) for appellant and Sri Rishi Chaddha, learned A.G.A for State-respondent at length and have gone through the record available on file carefully with the valuable assistance of learned counsel for the parties.

15. Learned Amicus Curiae appearing for appellant has challenged conviction of accused-appellant, advancing his submissions, in the following manner :-

(i) This is a case of circumstantial evidence and there is no motive to accused to commit murder of his daughters, namely, Km. Khushnuma and Km. Sawa Parveen.

(ii) There is no complete chain of evidence so as to indicate that accused is the only person who has committed crime.

(iii) P.W.-1 Jamiwar is not an eye witness, he turned hostile and did not support prosecution case. He is only witness of fact, who has been produced from the side of prosecution to substantiate its case. No other witness is present to support him.

(iv) P.W.-1 is said to have seen accused going with his daughters from the house and returning to home without his daughters and washing his bloodstained hands. He is also the witness of extra-judicial confession but he did not prove it.

(v) There are several contradictions rendering prosecution case doubtful.

16. Per contra learned AGA opposed submissions and urged that PW-1 is only witness of fact. Though he has turned hostile and did not support prosecution case in toto since he is the real brother of accused so he has a reason for not supporting the prosecution but in his examination in chief he admitted that he has seen accused going with his daughters from his house. It is settled principle of law that on the ground of hostility entire statement cannot be thrown out. Prosecution has established a complete chain of circumstantial evidence to connect accused with present crime. Accused is the only person who committed murder of his daughters.

17. We now proceed to consider rival submissions on merits.

18. Admittedly, there is no eye-witness in the present case. This case rests upon circumstantial evidence. It is no doubt a case where there is no eye witness of crime. Prosecution totally rests on circumstantial evidence. P.W.-1 deposed that on 8.6.2012 accused Guddu came to village along with two daughters. On the next day, in the morning, he (accused) went along with daughter Km. Khurshnuma and Km. Sawa Parveen saying that they were going to Tirwan market. But he did not went there. After about two hours he heard a rumour that dead bodies of two girls were lying in the corn field near field of Jalees. He went there and saw dead bodies of both daughters of Guddu lying there. He did not know as to who killed them and why. Thereafter, he went to police station and gave information of dead bodies. He is not a literate person so he got the tehrir scribed by one Kitabuddin but he did not know about the contents of tahrir which was not read over and explained to him. He only put his thumb impression on tahrir. Witness did not support prosecution therefore, he was declared hostile. But in cross-examination made by A.D.G.C. (Criminal) on behalf of State he admitted that accused Guddu took his both daughters at 7:00 O'clock in the morning, on fateful day, by saying that they were going to Tirwan Bazar. Thereafter, he did not see both daughters alive except their dead bodies.

19. PW-2 Ibrar Khan, turned hostile and did not support prosecution case. P.W. 3 Rafi Mohd, witness of inquest has deposed that on 9.6.2012, after receiving information of death, he went to the spot. Police held inquest before him. Dead bodies of both were found in the corn field of Jalees. Inquest report was prepared before him. He also put his thumb impression. In this way witness proved inquest report. Witness also proved recovery of Chappal, Salwar Kurta, Dupatta one frock from spot, their fards and memo of simple and bloodstained earth collected by I.O. from spot.

20. PW-4 Rafi Mohd. son of Lal Mohd., turned hostile but admitted that dead body of Khushnuma and Sawa Parveen was found lying in the corn field of Jalees.

21. P.W. 7 Dr. C.P. Singh conducted autopsy over the dead body of Khushnuma and Sawa Parveen and prepared post mortem report expressing opinion that death of Khushnuma and Sawa Parveen might have been at 7:00 onward on 9.6.2012, by some sharp weapon, and they died on account of ante-mortem injuries. He further opined that death of Khushnuma would have been caused due to asphyxia on account of anti-mortem strangulation. P.W.-7 found four injuries i.e. one abrasion, one abraded contusion and two incised wounds as ante mortem injuries on the body of Sawa Parveen and three injuries i.e. one incised wound, one abraded contusion and one contusion as ante-mortem injuries on the dead body of Khushnuma.

22. From the evidence of P.W.-1 P.W.-3, 4 and P.W.-7 Dr. C.P. Singh conducting post mortem and P.W.-9 Harnath Singh conducting inquest, following circumstances are clearly established :

A. Km. Sawa Parveen was murdered by using sharp cutting weapon and Km. Khushnuma was done to death by strangulation on 9.6.2012 at about 7:00 O'clock in the morning onward.

B. Dead bodies of Km. Sawa Parveen and Km. Khushnuma were found in the corn field of Jalees on 9.6.2012.

C. Post-moterm report reveals that death of Km. Sawa Parveen and Km. Khushnuma would have occurred on 9.6.2012 on account of ante-mortem injuries and it was homicidal.

D. Time, death and place of evidence, though not disputed by accused, are clearly established.

23. In case in hand there is no eye witness of occurrence and case of prosecution rests on circumstantial evidence. There cannot be any dispute as to the well settled proposition that the circumstances from which the conclusion of guilt is to be drawn must or "should be" and not merely "may be" fully established. The facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explicable through any other hypothesis except that the accused was guilty. Moreover, the circumstances should be conclusive in nature. There must be a chain of evidence so complete so as to not leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must show that in all human probability, the offence was committed by the accused.

24. Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343, is the basic judgment of the Supreme Court on appreciation of evidence, when the case depends only on circumstantial evidence, which has been consistently relied in later judgments. In this case as long back as in 1952 Hon'ble Mahajan, J expounded various concomitant of proof of a case based purely on circumstantial evidence and said:

"... 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...... it must be such as to show that within all human probability the act must have been done by the accused."

25. In Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063, Court said, where a case rests clearly on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person.

26. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that chain is complete. Infirmity or lacuna, in prosecution, cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent :-

(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.

(emphasis added)

27. In Ashok Kumar Chatterjee v. State of Madhya Pradesh, AIR 1989 SC 1890, Court said:

"...when a case rests upon circumstantial evidence such evidence must satisfy the following tests :-

(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."

(emphasis added)

28. In C. Chenga Reddy and Others v. State of Andhra Pradesh, 1996(10) SCC 193, Court said:

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. "

(emphasis added)

29. In Bodh Raj @ Bodha and Ors. v. State of Jammu and Kashmir, 2002(8) SCC 45 Court quoted from Sir Alfred Wills, "Wills' Circumstantial Evidence" (Chapter VI) and in para 15 of judgement said:

"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;

(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;

(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;

(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt,

(5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."

(emphasis added)

30. The above principle in respect of circumstantial evidence has been reiterated in subsequent authorities also in Shivu and Another v. Registrar General High Court of Karnataka and Another, 2007(4) SCC 713 and Tomaso Bruno v. State of U.P., 2015(7) SCC 178.

31. Now the only question remains for consideration is as to who is the prepetrator of this crime and killer of both daughters.

32. It is a case where there is no eye witness. None has seen the accused murdering Km. Sawa Parveen and Km. Khushnuma. P.W.-1 although not supported prosecution case as he is real brother of accused. However, he has deposed that on the fateful day, in the morning, at 7 O'clock, he saw accused taking his both daughters on the pretext of going to Tirwan Bazar. Immediate thereafter within two hours dead bodies of both girls were found lying in the corn field. P.W.-5 deposed that he was going to his field which was ahead 2 - 3 fields to the field of Jalees Ahmad at about 9:30 a.m. and saw that accused Guddu @ Haseeb resident of same village was taking his daughters namely, Km. Sawa Parveen and Km. Khushnuma towards the corn field. Thereafter when he was returning, there was a crowd and dead bodies of both daughters were lying with blood. Witness was cross-examined by defence but nothing material could be brought on record which may dent his statement. P.W.-6 Kitabuddin, witness of recovery of Basuli, has deposed that on pointing of accused, police recovered Basuli (brick cutter) from corn field of Jalees. Basuli was duly sealed and recovery memo was prepared in his presence and that of Jalees. This witness with stood his cross-examination by defence but nothing material or contradiction could be brought on record which may give doubt to prosecution story.

33. Here it is necessary to keep in mind Section 106 of Indian Evidence Act, 1872 which says that when any fact is especially within the knowledge of any person, burden to prove that fact is upon him.

34. Accused was last seen going with his two victim daughters by P.W.-1 on the pretext of going to Tirwan Bazar. He was also seen going with these two daughters towards the corn field of Jalees by P.W. -5 at about 9:30 a.m. on the fateful day. Later on after sometime both the girls were found dead with blood in corn field of Jalees. Hence it was only accused who could explain circumstances in which Km. Khushnuma and Km. Sawa Parveen died.

35. It is also note-able that on the pointing out of accused, Basuli, which was used in the commission of murder of two daughters, was recovered by police from the field where dead bodied were lying. Accused was seen by P.W. 5, along with his two victim daughters going towards the corn field. It was only the accused who could explain as to what happened with the girls in corn field. Burden was upon accused who has failed to discharge. The accused by virtue of his special knowledge must offer an explanation which might lead the Court to draw a different inference.

36. In Ganeshlal v. State of Maharashtr,a (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife.

37. In so far as discrepancies, variation and contradiction in the prosecution case are concerned, we have analyzed entire evidence in consonance with the submissions raised by learned counsel's and find that the same do not go to the root of case.

38. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124, Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.

39. In Sachin Kumar Singhraha Vs. State of Madhya Pradesh in Criminal Appeal Nos. 473-474 of 2019 decided on 12.3.2019 Hon'ble Supreme Court has observed that the Court will have to evaluate the evidence before it keeping in mind the rustic nature of the depositions of the villagers, who may not depose about exact geographical locations with mathematical precision. Discrepancies of this nature which do not go to the root of the matter do not obliterate otherwise acceptable evidence. It need not be stated that it is by now well settled that minor variations should not be taken into consideration while assessing the reliability of witness testimony and the consistency of the prosecution version as a whole.

40. We lest not forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. Reference may be made to a recent decision of the Apex Court (3 Judges) in Criminal Appeal No. 56 of 2018, Smt. Shamim v. State of (NCT of Delhi), decided on 19.09.2018.

41. In the entirety of the facts and circumstances and legal preposition discussed herein before, we are of considered view that prosecution has successfully proved its case beyond reasonable doubt against accused-appellant and Trial Court has rightly convicted him for having committed an offence under Section 302 IPC. No interference is warranted. Appeal lacks merit and liable to be dismissed.

42. So far as sentence of accused-appellant is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.

43. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].

44. Hence, applying the principles laid down in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused-appellant-Guddu @ Haseeb Khan by Trial Court in impugned judgment and order is not excessive and it appears fit and proper and no question arises to interfere in the matter on the point of punishment imposed upon him.

45. In view of above discussion, the appeal lacks merit and is dismissed. Impugned judgement and order dated 17.06.2015 passed by Additional Sessions Judge / F.T.C., District Kannauj in Session Trial No.261 of 2012 (State Vs. Guddu @ Haseeb Khan Crime No. 198 of 2012) under Section 302 IPC, Police Station Tirwa, District Kannauj, is maintained and confirmed.

46. Lower Court record along with the copy of this judgment be sent immediately to Court and Jail Superintendent concerned for necessary compliance and to apprise the accused forthwith. Compliance report be also submitted to this Court.

47. Lower Court record along with a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action.

48. Before parting, we provide that Sri Avinash Jaiswal, Advocate, who has appeared as Amicus Curiae for appellant in present Jail Appeal, shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.

Order Date :-17.04.2019

Manoj