Gulshan S/O Ahmed Ali vs State
2005 Latest Caselaw 688 Del

JUDGMENT

Manmohan Sarin, J.

1. This is an appeal preferred against the judgment and order of sentence dated 29th November, 1996 passed by Mr. R.K.Tewari, Addl. Sessions Judge convicting the appellant Gulshan under Section 302 IPC and sentencing him to imprisonment for life and to pay a fine of Rs. 1000/-, in default, further RI for one month. Appellant had also been charged under Section 201 IPC but was acquitted of the same.

2. The appellant was charged with having committed murder of minor Parvez @ Naneh on 29th April, 1995 at Ganda Nala, Kadam Puri, Opp. Yamuna Vihar. It would be relevant at this stage to notice inter se relationship between the appellant, deceased and others who are witnesses in the case.

The appellant/accused's father Ahmed Ali (DW2) married Shahida Begam (PW1), a divorcee having daughters Shabana (PW2) and another daughter, from previous marriage. Kabir (PW-3) is the son-in-law of Shahida Begum and husband of her second daughter. Ahmed Ali also has siblings from a previous marriage, appellant/accused being one of the sons. Ahmed Ali had started cohabiting and residing with Shahida Begum and her family. Deceased-Nanhe was the minor son of Shabana.

3. The prosecution case is that on account of marriage and cohabitation of Ahmed Ali with Shahida Begum, the appellant/accused was inimical towards Shahida Begum, Shabana and the deceased. PW-3, Kabir states that appellant/accused in a drunken state used to visit Shahida Begum and Shabana and have quarrel with them. Kabir deposed that on 28th April, 2005 at 9 P.M., he had seen the appellant/accused with the deceased going on a rickshaw towards Brahmpuri near pulia. He did not enquire anything from the appellant/accused as he was often taking the deceased with him, but he told these facts to Shahida Begum and Shabana.

4. There is no eye witness to the crime. It is a case of circumstantial evidence. Prosecution relied on the following circumstances to claim that chain and circumstantial evidence was complete so as to prove the guilt of the appellant/accused:-

(i) That the deceased Parvez was found missing on 28.4.1995 and was taken away by the accused.

(ii) That the deceased was last wearing a 'Tabeez'.

(iii) That the dead body of the deceased had been recovered on 29.4.1995.

(iv) That the accused was arrested in the above case on 1.5.1995 and the above Tabeez had been recovered from his possession.

(v) That the deceased was last seen in the company of the accused by PW-3, Kabeer at 9 P.M. On 28.4.1995.

5. PW-3, Kabeer had been examined as the main witness of the prosecution, who deposed having last seen the deceased going on a rickshaw towards Brahm Puri on 28th April, 1995 at 9 P.M along with the appellant/accused. PW-3 in his cross-examination stated that he had told Shahida Begum and Shabana about the same around the midnight of 28th April, 1995 itself. He claims that he searched for the deceased along with both of them. Report was not lodged with the police earlier as they were under the impression that appellant/accused would bring back the child. Father of the appellant also told them to wait for the appellant. There was a function in the family on 30th April, 1995, which was also attended by the appellant who had been invited. The trial court found the testimony of PW-3, Kabir trustworthy and reliable and unshaken in cross-examination. It held that it was proved on record beyond reasonable doubt that deceased was last seen in the company of appellant/accused alive on 28th April, 1995 at 9 P.M by PW-3 Kabir. The motive in the present case was taken as enmity of the appellant/accused with the family of the deceased with whom the father of the appellant had started living. The next incriminating piece of evidence on which reliance was placed by the trial court was Tabeez, exhibit P1 worn by the deceased being recovered from the possession of the appellant/accused. This was taken as a strong circumstance pointing towards guilt of the appellant/accused. PW-11, Inspector A.Banerjee, second IO who had arrested the appellant, stated that at the time of arrest in the presence of Shahida Begum and Shabana, a Tabeez was recovered from the right side pocket of the pant of the appellant/accused and the same was identified as Tabeez worn by the deceased by PWs 1 & 2.

6. The appellant/accused in his statement under Section 313 Cr.P.C claimed to be innocent and falsely implicated. He stated that P.Ws 1 & 2 namely Shahida Begum and Shabana were ladies of loose character. They were having illicit relationship with many persons. Shabana, PW-2 was having illicit relation with Mohd Rafiq since prior to her marriage and even thereafter. Her husband and she were having strained relationship on this count and living separately. Her husband Poonam Jama had doubted that the deceased was born from illicit relation of PW2 with Mohd Rafiq and they both had a lot of quarrel on this account. Accordingly, counsel urged that the crime of others was perhaps sought to be fastened on the appellant.

7. The legal position regarding conviction in case of last seen together and the nature of circumstantial evidence required for conviction may be noted:

(i) In Arvind v.State (Delhi Administration) reported at (1999) 4 Supreme Court Cases 486, the Supreme Court observed as under:-

"The standard of proof required to convict a person on circumstantial evidence is now well established. According to that standard the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and that all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime."

(ii) The circumstantial evidence can even be more dependable than the direct evidence provided that no link in the chain is missing. While it is possible that each of these links may not by itself incriminate the accused or be conclusive against him the linking of all of them may forge the chain in arriving at that conclusion. H.P. Adminstration v. Om Prakash reported at 1972 (1) Supreme Court Cases 249.

(iii) Reference may also be usefully made to the Bhalinder Singh v. State of Punjab reported at 1994 (1) SCC 726, where the Supreme Court set aside the conviction of the accused by the Trial Court and the High Court and acquitted the appellant. In the cited case, the circumstance relied upon by the prosecution before the Trial Court and the High Court were:-

1. Last seen together;

2. Recovery of the shoes of the deceased at the instance of the appellant pursuant to a statement under Section 27 of the Evidence Act, besides recovery of empty liquor bottles and a glass;

3. Extra judicial confessions made before Sarpanch of the Village;

4. A false explanation given by the appellant to the father of the deceased when he went looking for his son on the night of the occurrence.

Supreme Court held that all the above circumstance, even taken together, do not lead only to the hypothesis of the guilt of the appellant and are not inconsistent with the theory of his innocence. It held that none of the circumstances relied upon by the prosecution have been established in the case beyond a reasonable doubt and the chain of the circumstantial evidence is so incomplete that it cannot justify the conviction of the appellant at all.

(iv) Even in Anant Bhujangrao Kulkarni v. State of Maharashtra reported at 1993 Supp. (2) SCC 267, Supreme Court set aside the conviction of the appellant where the allegation was that the appellant had informed the deceased's son about murder of the deceased and the body had been thrown in a raised platform hollow from inside, situated near the residential portion of the appellant. The deceased had been last seen alive in the company of the appellant and the recovery of the dead body was also from the platform near the residential portion of the appellant. These circumstance found on facts not to be inconsistent with innocence of the appellant. The alleged recovery of the wrist watch of the deceased at the instance of the appellant and the conduct of the appellant in giving vague and evasive replies, being the two proved circumstance alone would not lead to an irresistible conclusion that the appellant alone was a party to the murder of the deceased and hence conviction was set aside.

8. From the foregoing judicial decisions and the principles enunciated therein, it would be seen that the chain of circumstantial evidence when the deceased had been stated to be last seen with accused should be such as to lead to the conclusion that it was the accused alone who could have committed the offence and none else.

9. Let us consider the present case in the light of the decision and principles enunciated therein. As noted, the conviction here is based on circumstantial evidence of the deceased having been last seen alive with the appellant by Kabir around 9 P.M on 28th April, 1995. PW-3, Kabir deposed that he had duly informed grand mother and mother of the deceased on 28th April, 1995 of seeing the deceased going with appellant in a rickshaw. It is wholly inexplicable that despite knowledge of appellant allegedly having taken the deceased on a rickshaw, the report Exhibit PW 2/A, which is lodged by Shanana, PW-2, and registered as DD No.33B dated 29th April, 1995 was of a missing person in the following terms:-

"Smt.Shabana w/o Yunus Zaman aged 22 years

R/o Jhuggi No.B-16, 550, near culvert of Brahampuri, Seelampuri, Delhi.

Information regarding missing of a boy aged 6 years

Time: 12.5 P.M.

The aforesaid lady has got a report lodged to the effect that her son namely Parvez aged 6 years, fair complexion, round face, stout body, height about 3 Â1/2 feet who was bare footed and wearing black pants and printed bushirt of black colour and who can tell his name and who had gone for playing and did not come back and to whom she is still searching and on not finding him. She has come to get lodged a report in the said regard. He may be traced out.

I have heard the statement and the same is correct.

Police proceedings:

A report as per the dictation of the complainant has been entered in the Rojnamcha which was read over to the aforesaid lady who having admitted the same to be correct put her signatures in Hindi there under. The case is found to be missing of a child. Hence, the copy of report is being sent to ..............(Sig) who will take appropriate action. The P.C.R is being informed.

Note: It is true copy of the original."

9. Moreover it is in evidence that Shahida Begum and Kabir himself had accompanied Shabana for lodging of the report. It is not comprehensible as to how the mother and grand mother of the deceased as also uncle Kabir, did not mention to the police even after one & half days that it was appellant/accused, who had taken the deceased in a rickshaw and was last seen with him. Instead the report lodged was that deceased Parvez was wearing black pants and printed shirt of black colour and who had gone for playing and did not come back. It was a report of missing person. In the natural and ordinary course of events, the mother of the deceased and the grand mother would certainly have disclosed the factum of the child having been last seen with the appellant/accused. This raises a doubt on the testimony of PW-3 with regard to having last seen the deceased with the appellant/accused.

10. Coming to the second circumstance regarding the recovery of Tabeez allegedly worn by the deceased round his neck from the accused, it would be pertinent to quote from the deposition of Shahida Begum:-

"In the hospital we identified the dead body of Parvez. At that time the `Tabiz' were not present around the neck of deceased which he was wearing when he was taken away from the house. The accused was arrested by the police and police informed us that a `Tabeez' had been recovered from the pocket of accused at the time of his search. I identified the said `Tabeez' of the deceased. The said `Tabeez' is Ex.P1. The accused was interrogated in our presence and he disclosed the manner and the place where the deceased was murdered. It is correct that 'Tabeez' Ex.P1 was recovered from the right pocket of the pant of the accused in the presence of Shabana and Kabir Ahmad and myself and we identified the same then and there. Tabeez Ex.P1 was taken into possession vide memo Ex.PW1/A."

11. It would be seen that in the above deposition, she firstly deposed that they were informed by the police that a `Tabeez' had been recovered from the pocket of accused at the time of his search. She subsequently states that `Tabeez' was recovered in their presence from the right side pocket of the pant of the accused.

PW-10, SI Rakesh Kumar deposed that at the time of arrest of accused at Gali No.35, 66 futa Road, a Tabeez was recovered from the right side pocket of the pant of the accused. The same was sealed in parcel with the seal of A.B and the same was taken into possession vide recovery memo Ex.PW 1/A. Taabez in question is of copper with silver colour coating. No special characteristic or unique feature of the `Taabez' so as to identify as the `Taabez' worn by the deceased have been pointed out, except the statement of PW1 & PW2. It was an ordinary Taabez. It is also not disputed that such like Taabez would be available in the market generally. Appellant/accused has denied the factum of recovery of Taabez from him or any disclosure at his instance.

12. There is merit in the contention of learned counsel for the appellant that it was extremely unlikely for perpetrator of a crime to firstly remove a copper Taabez which is hardly of any value, and then carry the same in his trouser's pocket for a period of three days. In these circumstances, the possibility of the Taabiz not having been recovered from appellant or being planted on him cannot be ruled out. The test and requirement as in Arvind v. State (supra) of circumstances cumulatively taken, pointing only to the guilt of accused are not established.

13. It may also be noted that it is not a case where the appellant was absconding and had disappeared from the scene. Rather the appellant forth-rightly attended the function of "Chhati" at the family of PW-1 on 30th to which he had been invited. Thus it was not a case where the appellant/ accused had absconded or was evading or shirking the family members after the alleged perpetration of a crime.

14. In view of the foregoing discussion, a nagging doubt arises with regard to the deceased having been last seen with the accused in view of the failure of the mother and grand mother of the deceased as also PW-3, Kabir, who failed to so state in the report lodged after one and half days. The report lodged was one "of missing person" despite the aforesaid knowledge. Doubt has also arisen connecting the appellant with crime on the basis of Taabez allegedly recovered from his trouser, three days after the crime as discussed above.

In these circumstances, it cannot be said that prosecution has proved the guilt of the appellant/accused beyond a reasonable doubt. In view of the foregoing discussion, the appellant who has already undergone over six years of incarceration, is entitled to the benefit of doubt. Appeal is accordingly allowed. The order of conviction and sentence is set aside giving the benefit of doubt to the appellant. Appellant is directed to be released forthwith.