Uttarakhand High Court
Zulfiqar Alias Mota vs State Of Uttarakhand on 4 October, 2024
Author: Alok Kumar Verma
Bench: Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
THE HON'BLE CHIEF JUSTICE MS. RITU BAHRI
AND
THE HON'BLE JUSTICE SRI ALOK KUMAR VERMA
4th OCTOBER, 2024
CRIMINAL APPEAL NO.333 OF 2014
Zulfiqar alias Mota ........Appellant
Versus
State of Uttarakhand ........Respondent
Counsel for the : Mr. Nandan Arya,
Appellant Advocate.
Counsel for the State : Mr. Amit Bhatt,
Government Advocate.
Reserved on: 02.05.2024
Delivered on: 04.10.2024
Judgment: (per Mr. Alok Kumar Verma, J.)
The present Appeal has been filed against the
judgment dated 08.10.2014/09.10.2014, passed by
learned District and Sessions Judge, Nainital in
Sessions Trial No. 44 of 2011, "State vs. Zulfiqar alias
Mota and Another", whereby the appellant - accused
has been convicted and sentenced to undergo
imprisonment for life along with a fine of Rs.20,000/-
for the offence under Section 302 of the Indian Penal
Code, 1860 (in short, "IPC"); he has been convicted
and sentenced to undergo rigorous imprisonment for a
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period of ten years with a fine of Rs.10,000/- for the
offence punishable under Section 394 IPC; and, he has
been further convicted and sentenced to undergo
rigorous imprisonment for a period of two years for the
offence under Section 411 IPC with default
imprisonment. All the sentences have been directed to
run concurrently.
2. Briefly stated the prosecution case as it
emerges from re-appreciation of the evidence on record
is that the informant Ashok Kumar Pandey (PW1) had
lodged an FIR (Ext. Ka.6) through his written
information (Ext. Ka.1) that he and his wife are
teachers. This morning his daughter and his son went
to school at around 7 a.m. He and his wife also went to
school. His mother Smt. Rewati Devi Pandey was at
house. When he and his wife came their house at
around 1:30 p.m., they saw that the articles inside the
house were scattered and his mother's dead body was
lying in the kitchen and there was blood. At that time
they did not see which item was missing. His mother
had a Samsung mobile phone No.9012666540, which
was switched off. He thought that the miscreants had
taken that mobile phone with them.
3. The police received the information about the
dead body of the deceased at 13.40 hrs. on
01.09.2010. Sub-Inspector Pan Singh (PW10) reached
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the spot along with other police personnel. The inquest
proceeding was conducted by him.
4. The First Information Report (Ext. Ka.6) was
registered on 01.09.2010 at 17.05 hrs. against the
unknown person under Section 302 IPC.
5. The investigation was handed over to Sub-
Inspector Umed Singh Danu (PW15).
6. The post-mortem examination of the dead
body of the deceased was conducted by Dr. C.P.
Bhaisoda (PW7) at 7.45 p.m. on 01.09.2010.
7. A list dated 03.09.2010 (Ext. Ka.2) was given
by the informant to the police in which it was
mentioned that one pair of gold earrings, which was
worn by his mother, one pair of gold earrings, which
were kept in the bedroom cupboard, Rs.6,000/- and a
Samsung mobile phone were looted from his house.
8. During the investigation, it was revealed that
the appellant had done carpentry work at the
informant's house. On the morning of 01.09.2010, he
was seen with one Naresh and Istiaq outside the
informant's house.
9. The appellant was arrested on 15.10.2010.
He confessed his guilt. The confessional statement of
the appellant led to the recovery of a Samsung mobile
phone of the deceased (International Mobile Equipment
Identity (in short, "IMEI") number 353350032799810)
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(Material Ext.1). There was no Subscriber Identity
Module (in short, "SIM") in the mobile phone. A pair of
gold tops (Material Ext.2) were recovered from his
house. The police seized the said articles vide Memo
Ext. Ka.4. Call details of the deceased's mobile phone
and the appellant's mobile phone number 7827670183
were obtained by the investigating officer. After
completion of the investigation, Sub-Inspector Umed
Singh Danu (PW15) filed the charge-sheet (Ext. Ka.27)
against the appellant along with Istiaq under Sections
302, 394, 411 and Section 34 IPC.
10. The charges under Section 302 IPC read with
Section 34 IPC, Section 394 IPC and Section 411 IPC
were framed against the appellant and Istiaq. As the
appellant and Istiaq pleaded innocence, trial was held.
11. In order to establish the accusations,
prosecution examined 15 witnesses.
12. Statements under Section 313 of the Code of
Criminal Procedure, 1973 were recorded. Appellant and
Istiaq denied all the incriminating evidence, produced
by the prosecution. According to the appellant, he does
not know carpentry work.
13. The trial court after hearing counsel for the
respective parties and considering the material
available on record, by the impugned judgment while
acquitting Istiaq of the charges under Section 302 IPC
4
read with Section 34 IPC, Section 394 IPC and Section
411 IPC convicted the appellant under Section 302 IPC,
394 IPC and Section 411 IPC.
14. Mr. Nandan Arya, learned counsel for the
appellant contended that the appellant has been falsely
implicated in this matter. The confessional statement is
not admissible. The alleged recoveries are false. There
was no independent witness at the time of the alleged
recoveries. The alleged recovered tops were not
identified. There are serious contradictions in the
statements of prosecution witnesses, and, no reliable
evidence is available on record against the appellant.
15. Mr. Amit Bhatt, learned Government
Advocate has supported the impugned judgment. He
contended that the chain of circumstances proved on
the record against the appellant is as under:-
(i) The appellant had done carpentry work at the
informant's house and on the morning of the day
of incident, he was seen outside the informant's
house.
(ii) The appellant had confessed his guilt.
(iii) A mobile phone of the deceased and a pair of
gold earrings were recovered from the appellant.
16. The present case rests on the circumstantial
evidence. No one had seen the assault by the appellant
on the deceased.
5
17. It is a well established law that in cases of
the circumstantial evidence, all circumstances relied
upon by the prosecution must be established by cogent
and reliable evidence and all the proved circumstances
must provide a complete chain. The chain of evidence
should be 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.
18. In Sharad Birdhi Chand Sarda vs. State of
Maharashtra, (1984) 4 SCC 116, the Hon'ble
Supreme Court held that when a case rests on
circumstantial evidence, such evidence must satisfy
these tests:-
(i) The circumstances from which the
conclusion of guilt is to be drawn, should be
fully established.
(ii) The facts so established should be
consisted only with the hypothesis of the guilt
of the accused, that it is to say, they should
not be explainable on any other hypothesis
except that the accused is guilty.
(iii) The circumstances should be of a
conclusive nature and tendency.
6
(iv) They should exclude every possible
hypothesis except the one to be proved.
(v) There must be a chain of evidence to
show 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 probabilities, the act must have
been done by the accused.
19. The principle of circumstantial evidence has
been reiterated by the Hon'ble Supreme Court in a
plethora of cases. In C. Chenga Reddy vs. State of
A.P., (1996) 10 SCC 193, the Hon'ble Supreme Court
observed, "In a case base 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." The same
principles were reiterated by the Hon'ble Supreme Court
in Trimukh Maroti Kirkan vs. State of Maharashtra,
(2006) 10 SCC 681, Mohd. Arif alias Ashfaq vs.
State (N.C.T. of Delhi), (2011) 13 SCC 621, Sunil
7
Clifford Daniel vs. State of Punjab, (2012) 11 SCC
205 and a number of other decisions.
20. On the basis of the above well-settled
principles, we proceed to examine whether the appellant
can be held to be guilty.
21. PW1 Ashok Kumar Pandey is the informant and
PW2 Smt. Vinita Pandey is the wife of the informant.
They stated that when they came their house at around
01:30 p.m. on 01.09.2010, they noticed that the articles
inside the house were scattered and the dead body of
Smt. Rewati Devi Pandey was lying in the kitchen and
there was blood on the floor.
22. PW3 Smt. Maya Sharma has stated that she
used to do sweeping work at the informant's house. On
01.09.2010 at 07:30 a.m., she had gone to the
informant's house for work. By that time, the informant,
his wife and their two children had gone to school. The
informant's mother had opened the door. When she was
leaving the house after finishing her work at 08:30, a
newspaper hawker came there. She called the
informant's mother. The informant's mother came and
took the newspaper. She had locked her house from
inside. She has further stated that when she came out,
Zulfiqar and Naresh were reading newspapers on the
platform in front of the house. At around 09:30, she saw
8
both the accused going out of the informant's house. She
received the information about the murder of the
deceased at 06:00 p.m. on the same day.
23. PW4 Jitendra was the newspaper hawker. He
has stated that on 01.09.2010 at about 08:30 a.m., two
boys had bought the newspapers from him. The
informant's house was about 125 steps away from where
those two persons were sitting. He had given the
newspaper to the woman working in the informant's
house. At that time, she was inside the gate.
24. PW5 Jagdish Chandra Joshi is the witness of
the inquest proceedings. He has stated that on the
morning of the incident, he saw Zulfiqar and Naresh
coming out of the gate of the informant. At that time,
Istiaq was also outside the gate.
25. PW6 Sub-Inspector Pratap Singh Negi and
PW14 Sub-Inspector Vinod Yadav are the witness to the
arrest of the appellant Zulfiqar and recoveries.
26. PW7 Dr. C.P. Bhaisoda, had conducted the
post-mortem examination of the dead body of the
deceased. He has proved the post-mortem report (Ext.
Ka.5). According to him, the cause of death was shock
and haemorrhage due to cut throat injury to neck
9
following sharp cutting injury to neck by sharp cutting
weapon.
27. PW8 Sub-Inspector Hem Chandra Joshi is the
scriber of the First Information Report (Ext. Ka.6).
28. PW9 Kamar Aalam has stated that he used to
receive calls from the mobile phone of the accused
Zulfiqar.
29. PW10 Sub-Inspector Pan Singh and PW12
Ghanshyam Pandey are the witnesses of the inquest
proceedings.
30. PW11 Naresh Kumar Verma did not support
the case of the prosecution.
31. PW13 Atikurrahman has stated that Zulfiqar
used to learn carpentry work from Hazi Asif.
32. PW15 Sub-Inspector Umed Singh Danu is the
investigating officer.
33. According to the appellant, he did not know the
work of carpenter. Ashok Kumar Pandey (PW1) has
stated in his cross-examination that two - three months
before the incident, Zulfiqar had left his work as a
carpenter at his house. Smt. Vinita Pandey (PW2) has
stated that before this incident, Zulfiqar, Hazi Asif and a
man named Mian had worked as carpenters at her
10
house. Ashok Kumar Pandey (PW1) has stated in his
examination-in-chief that Zulfiqar and Naresh were sent
by his fellow teacher Atikurrahman while Atikurrahman
(PW13) has stated that Zulfiqar used to learn carpentry
work from Hazi Asif but he had not asked them to do the
carpentry work at the informant's house. Therefore, in
view of these contradictions, the prosecution's case that
the appellant had actually worked as a carpenter at the
informant's house is not found reliable.
34. According to the prosecution, Zulfiqar, Naresh
and Istiaq were involved in the murder of the deceased.
The trial court has acquitted the accused Istiaq. The
order of acquittal of the accused Istiaq has not been
challenged by the prosecution. As per the prosecution,
role of the appellant Zulfiqar and Naresh was same. But,
the prosecution has also failed to clarify whether any
charge-sheet was filed against the accused Naresh.
Therefore, these circumstances also make the
prosecution case doubtful.
35. Section 25 of the Indian Evidence Act is
broadly worded and it excludes from evidence a
confession made by the accused to a police officer under
any circumstances and a confession made by a person
while he was in the custody of the police is also
11
inadmissible under Section 26 of the Indian Evidence Act
unless made in the immediate presence of a Magistrate.
36. As per the written information (Ext. Ka.1) of
the informant Ashok Kumar Pandey (PW1), he and his
wife saw that the articles inside the house were scattered
and his mother's dead body was lying in the kitchen. At
that time, they did not see which item was missing.
Therefore, a list dated 03.09.2010 (Ext. Ka.2) was given
by him to the police in which it was mentioned that one
pair of gold earrings, which was worn by his mother, one
pair of gold earrings, which was kept in the bedroom
cupboard, Rs.6,000/- and a Samsung mobile phone were
looted from his house. Contrary to his written
information (Ext. Ka.1), he has stated in his
examination-in-chief that after seeing his mother, he
searched all the articles in the house. He also searched
the cupboard and noticed that the gold earrings of his
mother were also missing.
37. As per the recovery memo, there was no
independent witness present at the time of the alleged
recoveries. After the alleged recovery, the recovered
articles were not identified by the informant or his wife.
It has been stated by Sub-Inspector Umed Singh Danu,
the Investigating Officer (PW15), in his cross-examination
that no disclosure statement of the appellant was
12
recorded before the recovery. When there is no
disclosure statement then without disclosure statement
recovery is meaningless. Therefore, the alleged recovery
cannot be relied upon.
38. Ashok Kumar Pandey (PW1) has stated in his
cross-examination that he had not given any document
related to Samsung mobile phone to the police. Sub-
Inspector Umed Singh Danu, the Investigating Officer,
(PW15) has stated in his cross-examination that he does
not know in whose name the IMEI number of the
Samsung mobile phone was issued and the call details
obtained by him are not verified.
39. The IMEI number is a unique number for
identifying a device. It identifies the mobile phone's
model, date of purchase etc. IMEI numbers help track
down the stolen mobile phone. The prosecution has not
produced any reliable evidence that the Samsung mobile
phone number 9012666540 belonged to the deceased
Smt. Rewati Devi Pandey.
40. In Bhagwan Singh and Others vs. State of
M.P., (2002) 4 SCC 85, the Hon'ble Supreme Court
observed that the golden thread which runs through the
web of administration of justice in criminal case is that if
two views are possible on the evidence adduced in the
case, one pointing to the guilt of the accused and the
13
other of his innocence, the view which is favorable to the
accused should be adopted.
41. It is also a basic rule of the criminal
jurisprudence that suspicion, however, strong cannot
take place of proof. In Sujit Biswas vs. State of
Assam, AIR 2013 SC 3817, the Hon'ble Supreme Court
held that suspicion, however grave it may be, cannot
take the place of proof, and there is a large difference
between something that "may be" proved, and
something that "will be proved". In a criminal trial,
suspicion no matter how strong, cannot and must not be
permitted to take place of proof. This is for the reason
that the mental distance between "may be" and "must
be" is quite large, and divides vague conjectures from
sure conclusions. In a criminal case, the Court has a duty
to ensure that mere conjectures or suspicion do not take
the place of legal proof. The large distance between
"may be true" and "must be true", must be covered by
way of clear, cogent and unimpeachable evidence
produced by the prosecution, before an accused is
condemned as a convict, and the basic and golden rule
must be applied.
42. In light of above discussion, it is found that the
statements of the prosecution witnesses do not inspire
14
confidence to convict the appellant as creating serious
doubt.
43. Thus, taking into consideration the nature and
quality of over all evidence, oral and documentary, on
record, we find it difficult to uphold the conviction of the
appellant under Sections 302, 394 and Section 411 IPC
and in the facts and circumstances of the case, he
deserves to be acquitted of these charges. The appeal is
allowed.
44. Accordingly, the judgment of conviction and
sentence dated 08.10.2014/ 09.10.2014 passed against
the appellant in Sessions Trial No.44 of 2011, "State vs.
Zulfiqar alias Mota and Another" is set aside. Appellant is
acquitted of the charges under Sections 302, 394 and
Section 411 IPC.
45. The appellant is on bail. His bail bonds are
cancelled and the sureties are discharged.
________________
Ritu Bahri, C.J.
_________________
Alok Kumar Verma, J.
Dated: 04.10.2024
Pant/
PANKAJ
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COURT OF UTTARAKHAND,
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KUMAR PANT
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serialNumber=4FA443614ABEBC1A2C417A645E31B2B4B
9D897811D160D334C31AA4BA6D48D32, cn=PANKAJ
KUMAR PANT
Date: 2024.10.04 18:08:41 +05'30'
