Furqan vs State Of U.P.
2019 Latest Caselaw 1720 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							  Reserved on 13.3.2019
 
Delivered on 27.3.2019
 

 
CRIMINAL APPEAL No.8154 of 2008
 

 
		Furqan				........Appellant
 
Vs
 
  State of Uttar Pradesh	            ........Respondent
 
AND
 
CRIMINAL APPEAL No.6494 of 2008
 

 
		Imran					........Appellant
 
Vs
 
  		State of Uttar Pradesh		........Respondent
 
____________________________________________________
 
For Appellants			: Sri I M Khan
 
					  Sri M P S Chauhan
 
					  Sri Noor Mohammad (Junior)
 
					  Ms Sweta Pandey
 
					  Ms Punita Pandey, Advocates
 
					   
 
For Respondent/State		: Sri Ankit Prakash, AGA	  ________________________________________________________
 

 
Hon'ble Pritinker Diwaker, J.

Hon'ble Raj Beer Singh, J.

Per: Pritinker Diwaker, J.

1. These two appeals arise out of judgments dated 22.8.2008 and 20.11.2008 passed by the Additional District & Sessions Judge, Fast Track Court No.4, District Aligarh in Sessions Trial No.616 of 2005 (State v. Imran & Shahjad) and No.616-A of 2005 (State v. Furqan) respectively, convicting the accused appellants under Sections 302/149 and 201 of IPC and sentencing them to undergo imprisonment for life, with a fine of Rs.20,000/- each, in default thereof, twenty months' additional simple imprisonment, and to undergo three years' rigorous imprisonment, with a fine of Rs.3000/- each, in default thereof, three months' additional simple imprisonment.

2. As per prosecution case, accused Furqan was in the business of selling and consuming drugs (smack). Deceased Anees was one of his customers. Further case of prosecution is that Anees and Furqan were having strange relations as on the report of Anees, Furqan was sent to Jail for committing an offence under Section 302 of IPC. On 12.1.2005, in the night, deceased Anees was seen entering the house of Furqan by (PW-3) Aleem and one Sharif, uncle of the deceased and on the next date, i.e. 13.1.2005, in the morning hours, dead body of the deceased was found in an abandoned area, which is about two kilometers away from the house of accused Furqan. On 13.1.2005 at 9:05 am, FIR, vide Ex.Ka-16 was lodged by (PW-1) Parvez under Sections 302 and 201 of IPC, showing suspicion against accused Furqan and his friends.

3. Inquest on the dead body of the deceased was conducted on 13.1.2005 and the body was sent for postmortem, which was conducted on the same day by (PW-5) Dr. Pramod Kumar, vide Ex. Ka-16.

As per Autopsy Surgeon, following four injuries were found on the body of the deceased:

"1. A half circle ligature mark in 17 cm x 2 cm on front of neck & on both sides laterally. Not knought marker present, and multiple incised wound (11 eleven in numbers) size 1 cm x 0.3 cm x muscle & trachea deep on front of neck on left side, clotted blood present & neck muscle are conjested underneath the ligature marked.

2. An abraded contusion in 9 cm x 6 cm on right side of forehead and head.

3. A.L.W. in 3 cm x 2 cm x muscle deep on front of left ear.

4. A.L.W. in 4 cm x 3 cm x muscle deep behind the left ear."

According to Autopsy Surgeon, the cause of death of the deceased was 'due to shock, hemorrhage and asphyxia, as a result of antemortem injury & throttling'.

4. At the instance of accused Furqan, on 18.2.2005, one knife was seized from Qabristan (graveyard) which was sent to FSL, however, as per FSL report, blood on the knife was found to be disintegrated, likewise, the clothes seized from co-accused Imran were also sent to FSL, but the origin of blood could not be proved, as the sample was found to be disintegrated. After investigation, charge-sheet was filed against accused Imran, Furqan and deceased accused Shahjad @ Babbu.

5. While framing charge, the trial Judge has framed charge against accused Imran, Furqan and deceased accused Shahjad @ Babbu under Sections 302/34 and 201 of IPC.

6. So as to hold accused persons guilty, prosecution has examined seven witnesses. Statements of accused persons were also recorded under Section 313 of Cr PC in which, they pleaded their innocence and false implication.

7. By the impugned judgments, the trial Judge has convicted all the accused persons under Sections 302/149 of IPC (though charge was framed against the accused persons under Sections 302/34 of IPC) and 201 of IPC and sentenced them, as mentioned in paragraph no.1 of this judgment.

8. During pendency of these appeals, accused Shahjad @ Babbu has expired and, therefore, his appeal has already been abated and the present appeals confine only in respect of accused Furqan and Imran.

9. Learned counsel for the appellants submits:

(i) that a very improbable story has been put forth by the prosecution, where it is alleged that accused Furqan was implicated by deceased Anees in a murder case, as a result of which, Anees was having fear that he would be killed by Furqan, but yet on the date of incident, i.e. 12.1.2005, deceased Anees had gone to the house of Furqan for alleged consumption of drugs (smack).

(ii) that once relations between deceased Anees and accused Furqan were not cordial and Anees was apprehending some untoward incident at the behest of Furqan, he would not have gone to his house.

(iii) that though at the instance of accused Furqan, on 18.2.2005, one knife is alleged to have been seized from Qabristan (graveyard), however, the seizure of the said knife has no evidentiary value because as per FSL report, blood found on the knife was disintegrated. It has been argued that once the origin of blood has not been proved, seizure of weapon is of no consequence. Likewise, at the instance of accused Imran, his clothes have been seized, but here also in the FSL report, sample of blood was found to be disintegrated.

(iv) that the accused persons have been convicted under Sections 302/149 of IPC. Admittedly, there are only three accused persons, charge was never framed against the accused persons under Section 149 of IPC, and, therefore, their conviction with the aid of Section 149 of IPC is totally against the law.

(v) that the main piece of evidence against the accused persons is the statement of so called witness of last seen (PW-3) Aleem. It has been argued that Aleem is alleged to have seen deceased Anees entering the house of accused Furqan sometime in the night of 12.1.2005, whereas the dead body of the deceased was found in an abandoned area, about two kilometers away from the house of Furqan. In the given facts and circumstances of the case, theory of 'last seen' cannot be applied in the case of accused Furqan.

(vi) that accused Imran and deceased accused Shahjad @ Babbu have not been named in the FIR, nor any identification parade was conducted by the prosecution and, therefore, joining them as accused is impermissible under the law and their conviction deserves to be set aside on this ground alone.

(vii) that accused Furqan is in Jail since last more than ten years, whereas accused Imran, who was earlier on bail, is also in Jail pursuant to non-bailable warrant issued by this Court, vide order dated 4.8.2015.

10. On the other hand, supporting the impugned judgments, it has been argued by State Counsel that the conviction of the appellants is in accordance with law and there is no infirmity in the same.

11. We have heard learned counsel for the parties and perused the record.

12. (PW-1) Parvez, is the father of the deceased. He states that on 12.1.2005 at about 10:00 am, his son Anees (deceased) had left his house, he was extensively searched by him and on the next day at about 7:30 am, he came to know that one dead body has been found near ADA Colony and when he reached there, he noticed that the body was of his son. He states that he was informed by the members of vicinity that his son was seen in the company of accused Furqan. He further states that on previous occasions, he asked his son to go and work in Super Colony, but the deceased had refused to go there by saying that, if he will go to the said place, he would be killed by accused Furqan as, at his instance, Furqan was arrested in a murder case by the police. This witness further states that Anees had further informed him that he was threatened by Furqan. It is relevant to mention here that this statement of PW-1, is an improvement, while deposing in the Court, because in the FIR lodged by him, no such statement was made.

In the cross-examination, he states that distance between the house of Furqan and the place where the dead body of Anees was found is about two kilometers. He further states that in the night of 12.1.2005, he waited for his son till about 1:00 am (in the morning of 13.1.2005) and his brother (Sharif) was present in his house, who was residing adjacent to his house. He further states that he was informed about the dead body of his son by his brother Sharif.

13. (PW-2) Shakil, is a witness of inquest.

14. (PW-3) Aleem, is a witness of last seen. He states that on 12.1.2005, he had gone to the house of his friend Rashid for dinner and when he was returning after attending the same, he noticed Furqan and two other persons in front of the house of Furqan. He further states that he saw deceased Anees entering the house of Furqan at about 10:15 pm. He further states that accused Furqan was in the business of smack and deceased Anees was one of his customers. He further states that Anees was the informer of the police and at his instance, accused Furqan was made an accused under Section 302 of IPC as a result of which, Furqan had threatened the deceased for dire consequences. He further states that uncle of deceased, namely Sharif was aware about the strange relation between Furqan and the deceased and, while the deceased was entering the house of accused Furqan, they were seen by the uncle of the deceased, Sharif. However, Sharif did not make any effort to stop Anees from entering the house of Furqan.

15. (PW-4) Vinod Kumar Payal, is an Investigating Officer.

16. (PW-5) Dr. Pramod Kumar, conducted the postmortem on the body of the deceased.

17. (PW-6) Nishar Ahmad, Head Constable, who assisted during investigation.

18. (PW-7) Layak Ram, is a Police Constable, who also assisted during investigation.

19. Close scrutiny of the evidence makes it clear that relations between deceased Anees and accused Furqan were not cordial and according to Anees, he was apprehending some untoward incident from accused Furqan, as at his instance, Furqan was booked in a murder case. The fact of animosity between Anees and Furqan was within the knowledge of (PW-1) Parvez and uncle of the deceased, namely, Sharif (not examined). Despite such relations between Anees and Furqan, further case of the prosecution is that Anees was seen by (PW-3) Aleem entering the house of Furqan and, according to Aleem, this could be for purchasing of drugs (smack). This improbable story put forth by the prosecution creates a doubt as to what is the correct factual position. If the relations between Anees and Furqan were inimical, Anees was apprehending some action at the instance of Furqan and on an earlier occasion, Anees had refused to go to the area where Furqan was residing, under these facts, Anees would not have gone to the house of Furqan, that too in the night. Uncle of the deceased, namely Sharif, who had seen Anees entering the house of Furqan, was aware about their relations, but he did not make any effort to stop Anees entering the house of Furqan.

20. The most important aspect of the case is that (PW-3) Aleem saw the deceased entering the house of accused Furqan along with two other persons. How accused Imran and deceased accused Shahjad @ Babbu have been figured out in the case, is difficult to understand. No test identification parade in respect of Imran and Shahjad has been conducted by the prosecution and yet they have been joined as accused only on the basis of some recovery made at the instance of accused Imran.

(PW-3) Aleem had seen deceased Anees entering the house of Furqan, whereas the dead body of the deceased was found on the next day near ADA Colony in an abandoned area, just about two kilometers away from the house of Furqan. There is absolutely no evidence on record as to how the body of deceased Anees was taken from the house of Furqan to ADA Colony.

21. Yet another important aspect of the case is that recovery of knife has been made at the disclosure statement of Furqan, but in the FSL report, sample was found to be disintegrated. Similar is the position where, at the instance of accused Imran, certain clothes have been seized, but here also sample was found to be disintegrated. In the absence of proving the origin of blood, seizure of weapon and certain clothes are of no consequence and cannot be used against the accused persons.

22. So far as the statement of (PW-1) Parvez that relations between Anees and Furqan were not cordial and deceased had refused to go to the area of Furqan because of threat being extended by Furqan is concerned, this statement is nothing but an improvement on the part of (PW-1) because in the FIR, no such statement was made by him.

23. The entire case of the prosecution is that the deceased was last seen in the company of the accused Furqan. The 'last seen' theory in the present case has two facets: (i) in terms of proximity of time and (ii) as regards the place itself, as the deceased was seen by (PW-3) Aleem entering the house of Furqan on 12.1.2005 at about 10:15 pm, whereas the dead body of the deceased was found on the next day near ADA Colony in an abandoned area, just about two kilometers away from the house of Furqan. The law on the point is summed up by the Apex Court in State of Uttar Pradesh v. Satish1 as under:

"The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible."

The last seen theory in the present case having dimensions in terms of time as well place, would certainly clinch the matter if the testimony of (PW-3) Aleem is accepted. Everything hinges on his testimony. He is the sole witness. It was stated by the Apex Court in Joseph v. State of Kerala2 that where there is a sole witness, his evidence has to be accepted with an amount of caution and after testing it on the touchstone of other material on record. Further, in State of Haryana v. Inder Singh3, it was laid down that the testimony of a sole witness must be confidence inspiring and beyond suspicion, thus, leaving no doubt in the mind of the Court. Noticing these two judgments, the Apex Court in Ramnaresh v. State of Chhattisgarh4 summed up the principles as under:

"The principles stated in these judgments are indisputable. None of these judgments say that the testimony of the sole eyewitness cannot be relied upon or conviction of an accused cannot be based upon the statement of the sole eye-witness to the crime. All that is needed is that the statement of the sole eye-witness should be reliable, should not leave any doubt in the mind of the Court and has to be corroborated by other evidence produced by the prosecution in relation to commission of the crime and involvement of the accused in committing such a crime."

24. The evidence of the sole witness thus needs to be considered with caution and after testing it against other material and further, such evidence must inspire confidence and ought to be beyond suspicion.

In the present case, the statement of (PW-3) Aleem does not inspire confidence of the Court and in the absence of any corroborative piece of evidence, it will not be safe for us to convict the accused persons solely on the basis of his statement. Accordingly, the accused persons are entitled for benefit of doubt.

25. Yet another important aspect of the case is that charges were framed against the accused persons under Sections 302/34 read with Section 201 of IPC, whereas they have been convicted under Section 302/149 of IPC. Undisputedly, there are only three accused in the present case and, therefore, conviction of the accused persons under Sections 302/149 of IPC is also not permissible in law.

26. Taking cumulative effect of the evidence, we are of the view that the story put forth by the prosecution is doubtful and on the basis of the material available on record, it would not be safe for this Court to uphold the conviction of the accused-appellants. They are entitled to get benefit of doubt.

27. The appeals succeed and are allowed. The judgments dated 22.8.2008 and 20.11.2008 are set aside. As the accused appellants are reported to be in Jail, they be set free forthwith, if not required in any other case.

Dated: 27 March, 2019

RKK/-AV

(Pritinker Diwaker, J)

(Raj Beer Singh, J)