Unknown vs State Of Uttarakhand
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Uttarakhand High Court

Unknown vs State Of Uttarakhand on 21 May, 2024

    IN THE HIGH COURT OF UTTARAKHAND
               AT NAINITAL
           HON'BLE THE CHIEF JUSTICE MS. RITU BAHRI
                             AND
            HON'BLE SRI JUSTICE ALOK KUMAR VERMA

                              21ST MAY, 2024
            CRIMINAL APPEAL No. 383 OF 2014

Zahur Ahmad @ Guddu @ Mohammad.

                                                                     ...Appellant
                                     Versus

State of Uttarakhand.
                                                                  ...Respondent

Counsel for the appellant.                :   Mr. Prateek Tripathi, learned legal-aid
                                              counsel.

Counsel for the respondent.               :   Mr. J.S. Virk, learned Deputy Advocate
                                              General with Mr. Rakesh Kumar Joshi,
                                              learned Brief Holder for the State of
                                              Uttarakhand.


JUDGMENT :

(per Ms. Ritu Bahri, C.J.)

The appellant has come up in appeal against

the judgement and order dated 10.11.2014, passed by

the learned 1st Additional Sessions Judge, Rudrapur,

U.S. Nagar, Uttarakhand in Sessions Trial No. 58 of

2009, whereby the appellant - Zahur Ahmad @ Guddu @

Mohammad has been convicted for the offence

punishable under Sections 302 and 201 of the Indian

Penal Code, 1860, and sentenced to undergo life

imprisonment and to pay a fine of Rs. 10,000/-, and in

default of payment of fine to undergo further imprisonment of one year for the offence under Section

302 IPC. He has been further sentenced to undergo

rigorous imprisonment of two years and a fine of Rs

1,000/- and in default of payment of fine to undergo

further imprisonment for six months for the offence

under Section 201 IPC.

2. The case of the prosecution, in brief, is that an

FIR was registered against the unknown accused on

09.11.2006 on the basis of hand-written complaint dated

09.11.2006 given by one Rafiq Ahmad S/o Shri Haji

Kudratullah, R/o Ward No.7, Boring Gali Kichha, Udham

Singh Nagar stated that on 09.11.2006 at around 08:30

A.M., one Muhammad Aamir S/o Intezar Khan came to

his shop and told him that a dead body of a woman was

lying in the inner part of his half-built house on his

vacant land. When the complainant went to the spot, he

saw a woman who had cut marks on her cheeks, her

face was swollen, and there was dry blood in her nose,

ears and mouth. Later, on 15.11.2006 another

complaint was given by one Shri Shaukat Ali Khan S/o

Mehboob Ali Khan, in which it was mentioned that the

complainant lives in the same locality where Zahur @

Guddu lives with Mrs. Ruksana, and an 8-9 year old son.

The complainant stated that a month ago Zahur told him

that the house in which he lives is small and asked him

to help him in taking Liaqat's house as the same is big.

On the request of Shaukat Ali, Liaqat gave the house on

rent to Zahur. Thereafter, Zahur was missing from

07.11.2006 after locking his house and the dead body of

the woman was received on 09.11.2006 in the same

locality. The complainant stated there was discussion in

the locality that the dead body was that of Rukshana,

but due to fear no one was ready to tell. He further

stated that today i.e. 15.11.2006, Zahur @ Guddu came

to his shop and said that on 07.11.2006 after getting

angry his wife went somewhere, since then he was

searching for her but did not find anywhere. On which

he said that there was discussion in the locality that the

dead body that was found on 09.11.2006 was of

Rukshana and you killed her. Thereafter, Zahur @

Guddu said to Imtiaz Malik S/o Ishaq Ali who was sitting

on the shop that he had made a mistake and

strangulated Rukshana with a dupatta in anger and had

poured acid on her face so that no one could identify her

and asked to help him. On this Complaint of Shri

Shaukat Ali, copy of report no. 43 was done and the

duplicate report was handed over to Senior Sub

Inspector for necessary action.

3. In the further investigation, the investigating

officer opened the lock of the house that was taken on

rent by Zahur Ahmad @ Guddu and took possession of it

and after inspecting the house and recovered blood-

stained soil and a piece of torn shirt pocket, plain soil

and acid soil were took into possession and after

inspecting the incident site, prepared a map. After the

post-mortem, the dead body was identified on the basis

of the clothes worn on its body and photographs, the

statements of the witnesses were also recorded. After

due investigation, the chargesheet against the accused

Zahur Ahmad @ Guddu @ Mohammad was sent to

Magistrate Court under Section 302, 201 of the Indian

Penal Code, 1860.

4. The Magistrate Court took cognizance against

the accused Zahur @ Guddu @ Mohammad, ensured his

presence and gave him the copies of the document and

committed the case to Sessions court. The Charges were

framed under section 302, 201 of the Indian Penal Code,

1860 against the accused. The accused denied the same

and demand a trial.

5. After the charge-sheet, the following

documentary evidence were present on behalf of the

prosecution to prove the case against the accused:

i. Exhibit Ka-1 Tehrir ii. Exhibit Ka-2 Panchnama iii. Exhibit Ka-3 Tehrir iv. Exhibit Ka-4 Postmortem Report v. Exhibit Ka-5 Map Nazri vi. Exhibit Ka-6 Fard for opening House of the lock vii. Exhibit Ka-7 Map Nazri viii. Exhibit Ka-8 and Ka-9 Fard for collecting blood sample, acidic and plain soil sample ix. Exhibit Ka-10 Chargesheet x. Exhibit Ka-11 Chik FIR xi. Exhibit Ka-12,13,14,15 Nakal Rapat xii. Exhibit Ka-16 Photograph of the dead body

xiv. Exhibit Ka-18 Sample Seal xv. Exhibit Ka-19 Letter sent to CMO U.S. Nagar by Senior Sub Inspector

6. The following witnesses were examined for the

purpose of proving the charges on behalf of the

prosecution:

i. PW-1 Rafiq Ahmad ii. PW-2 Abbas Malik iii. PW-3 Zia-ul- Hassan iv. PW-4 Shaukat Ali v. PW-5 Liaqat vi. PW-6 Dr. R.S. Kuwar vii. PW-7 Inspector BL Verma viii. PW-8 Mrs. Rehana ix. PW-9 Aamir

7. After the prosecution concluded its evidence,

the statement of accused Zahur @ Guddu @ Mohammad

was recorded under Section 313 Cr.P.C. in which the

accused denied the fact of living with his wife and

children in the house of Liaqat on and before 07.11.2006

and also denied of knowing Liaqat and Shaukat Ali. The

accused also denied the fact that on 07.11.2006 he

strangulated his wife Rukshana with a rope/dupatta and

also denied the fact that acid was poured on her face

with the intention of destroying the evidence and the

body was thrown in the room of Rafiq Ahmad's under

construction house. The accused also denied the fact of

accepting the murder of Rukshana in front of Shaukat

Ali, Imtiaz Ali and Ibne Ali and said it was wrong. The

accused denied and termed the testimony of all the

prosecution witnesses as false and refused to present

oral or documentary evidence in defence saying that the

trial was a false one and declared himself innocent.

8. After going through all the evidence produced

by the prosecution before the trial court, the trial court

observed that it becomes clear from the evidences and

oral testimony of the prosecution witnesses that the

prosecution has proved the date, time, place of the

incident of murder and throwing the dead body in the

semi-built house of Rafiq Ahmad. The statements of the

witnesses of fact corroborate each other. The

prosecution appears to have been successful in proving

the former conduct of the accused as well as the

subsequent conduct of the accused of locking the house

at the scene of the incident and disappeared

immediately also shows his involvement in the incident.

The trial court held that it becomes clear that the

prosecution succeeded in proving the facts beyond

reasonable doubt that the accused Zahur @ Guddu @

Mohammad, with a prior motive, Rukshana was

murdered by beating and strangulating her in the rented

house of Liaqat and pour acid on her face to destroy the

evidence and thrown the dead body in the semi-built

house of Rafiq. The Trial Court accordingly convicted the

accused under Section 302 and 201 of the Indian Penal

Code.

9. The pivotal issue to be determined in this

appeal is whether the prosecution has successfully

proven the appellant's guilt beyond a reasonable doubt

based on the evidence presented. Additionally, it must

be assessed whether the lower court's decision to

impose the punishment, as stated in the impugned

judgment, was justified.

10. This case hinges on circumstantial evidence,

as no one witnessed the commission of the offence. It is

well established that a conviction based on

circumstantial evidence can only be upheld if the

prosecution proves a chain of events that exclusively

points to the accused's guilt, without any plausible

hypothesis of innocence. This legal standard was clearly

articulated by the Hon'ble Supreme Court in the case of

Sharad Birdhichand Sarda v. State of Maharashtra,

(1984) 4 SCC 116, a precedent that has been

consistently followed. In light of the Supreme Court's

judgment in Sharad Birdhichand Sarda (Supra), this

Court must scrutinize the prosecution's evidence in the

present case to determine if it meets the required legal

standards. The relevant observations from Sharad

Birdhichand Sarda (supra) are outlined in paragraphs

152 to 154, where the Hon'ble Supreme Court stated :

"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the

cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]:

"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 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."

153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" 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" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Cri LJ 1783] where the observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(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.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

11. The records clearly reveal that the accused

was living in the house of Liaqat on rent with Rukshana

and her 8-9 years old son, Aamir. The PW-8 Mrs.

Rehana has said in her statement that deceased

Rukshana was her elder sister. Rukshana was married

to Shamim and she had three sons and two girls from

Shamim. Shamim has died and thereafter Rukshana

started living with the accused Zahur. She used to visit

Rukshana's house in Kichha. It is clear from the

testimony of PW-8 that the accused and the deceased

used to live together in Kichha. The same was also

confirmed by the statement of PW-9, Aamir, the son of

the deceased. In his statement, the witness stated that

Rukshana was her mother, and she was killed by Zahur.

Before killing her mother, Zahur had beaten her. He

himself saw that Zahur killed her mother by

strangulating her with a rope. At the time of incident,

he was at home. He also stated that he lived in Kichha

with her mother Rukshana and Zahur. The statement of

PW-9 has also supported the statement of PW-8. These

statements also supported the statement of the

Investigation Officer PW-7, as well as has supported the

medical evidences.

12. The PW-7 also stated that the accused has

been absconding from the day of the incident till the day

he surrendered in the Court on 08.12.2006. There were

independent witnesses also on record, who gave their

testimony and the same corroborated with the facts of

the case. PW-1, Rafiq Ahmad was not a relative of the

deceased. He gave his testimony to support the

complaint. PW-4, Shaukat Ali, who was also an

independent witness, gave his testimony and stated that

on 15.11.2006, Zahur Ahmad came to his shop and said

that his wife was missing since 07.11.2006 and when

this witness said to the accused that there was

discussion in the colony that the recovered dead body

was of your wife Rukshana and you killed her. On this

the accused had said to Imtiaz Malik and Ibne Ali, who

were also sitting in the shop, that he has made a

mistake in anger, and had killed his wife Rukshana by

strangulating her with a scarf (dupatta).

13. PW-5 has also admitted in his statement that

the accused Zahur @ Guddu used to live in his house on

rent. He has also said in his statement that the room in

his house, in which the accused was living as a tenant,

was locked and the accused was missing. He also

testified that the blood stained soil, torn cloth of shirt's

pocket and plain soil taken from the rented portion of his

house at the spot of murder related to the murder

incident. It is also clear from the statement of PW-6,

Dr. R.S. Kumar, who has stated that the deceased died

due to suffocation and ante mortem cut wounds were

also present on her neck and nose.

14. The present facts of the case sufficiently

complete the circumstantial chain of the events, and are

also corroborated with the statements of the prosecution

witnesses, and the independent witnesses also prove the

case of the prosecution. Therefore, there is no need to

interfere with the judgment of the Trial Court, as the

same has been passed after evaluating the evidences by

correctly forming the circumstantial chain of evidence

completely.

15. The appeal is, hereby, dismissed on the basis

of the above-said discussion.

16. Pending application(s), if any, also stand

disposed of accordingly.

______________ RITU BAHRI, C.J.

___________________ ALOK KUMAR VERMA, J.

Dt: 21st May, 2024 Rahul