Murder convictions based on circumstantial evidence were set aside because the incriminating circumstances were not proved beyond reasonable doubt. The court allowed both appeals and acquitted all three appellants.
Convictions under Section 302 read with Section 34 I.P.C. set aside; all three appellants acquitted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Reserved on 18.07.2019 Delivered on 05.08.2019
Court No. 47
Case :- CRIMINAL APPEAL No. 3252 of 2014 Appellant :- Haseena And Another Respondent :- State Of U.P. Counsel for Appellant :- Raj Kumar Tripathi, Arvind Kumar Singh, Ramesh Chandra Srivastava, Nazrul Islam Jafri, Counsel for Respondent :- Government Advocate
Connected with
Case :- CRIMINAL APPEAL No. 3253 of 2014 Appellant :- Abdulla Respondent :- State Of U.P. Counsel for Appellant :- Raj Kumar Tripathi, Arvind Kumar Singh, Ramesh Chandra Srivastava, Nazrul Islam Jafri, Counsel for Respondent :- Government Advocate
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Umesh Kumar,J.
[Delivered by Ram Surat Ram (Maurya),J.]
1. Heard Sri Nazrul Islam Jafri, for the appellants, in both the appeals and Sri I.P. Srivastava, A.G.A. 1st and Sri Om Prakash, A.G.A., for State of U.P.
2. Haseena, Wakeel and Abdulla have filed the aforementioned appeals, from the judgment of Additional Session's Judge, Court No. 6, Saharanpur dated 07.07.2014, passed in S.T. No. 469 of 2011, State of U.P. Vs. Haseena and others [arising out of Case Crime No. 71/301 of 2011, under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred to as the IPC), P.S. Nakud, district Saharanpur, convicting them under Section 302 read with Section 34 I.P.C. and sentencing for imprisonment for life and fine of Rs. 10000/- each with default stipulation.
3. On the written complaint (Ex-Ka-1) of Iliyas (PW-1), FIR (Ex-Ka-2) of Case Crime No. 71/301 of 2011, under Section 302 IPC was registered on 01.06.2011 at 9:30 hours, at the police outpost Ambehta, P.S. Nukud, district Saharanpur, by Constable Clerk Mukesh Kumar (PW-3) against Haseena, Wakeel and Abdulla. It has been stated in the FIR that Nanu son of Majeed, resident of village Kheda Afgan, was murdered in last night of 01.06.2011, by his wife Haseena, his son Wakeel and Abdulla son of Abdulbari, paramour of Haseena, jointly by throttling. Shamshad son of Ibrahim and Khalil son of Harun, residents of the mohalla had heard one shriek at about
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1.00 AM at the house of Nanu. Thereafter, they saw that Wakeel son of Nanu and Abdulla were coming out from the house of Nanu, while running in flustered position. At that time the witnesses made query from Haseena about the shriek. Then she, closing the doors, told that she did not know. In morning Shadab son of Nanu, who was sleeping in another room, finding his father as dead, started shouting in neighbourhood, then the correct facts regarding incident was disclosed. They went and saw that there were injury marks on the neck and wrist of Nanu. Nanu was murdered by his wife Haseena, son Wakeel and Abdulla, paramour of Haseena. After lodging FIR, legal action be taken.
4. After registration of FIR, In-charge Inspector V.R. Verma (PW-7), started investigation in the matter. He copied check FIR and G.D. entry in case diary and came on the spot on the spot on 01.06.2011. On the spot, he recorded statements of the informant Iliyas, Shadab, Shamshad. He inspected the spot on the pointing out of the informant and prepared site-plan (Ex-Ka-5). He searched Khalil but he had gone on his work. He arrested the accused Wakeel from Railway Station, Saharanpur on 01.06.2011 and recorded his statement. On the pointing out of Wakeel, a plastic rope (Ex-Ka-13) was recovered from the house of the accused, which was concealed below the quilt, in his house. Wakeel informed that this rope was used for tiding hands and legs of Nanu at the time of throttling. On 02.06.2011, a raid was made at the house of Abdulla but he could not be arrested. Haseena was arrested on 02.06.2011 at 6:30 AM from burial ground of village Ghausala. He recorded statements of Haseena. On 06.06.2011, he recorded statements of Khalil and Panches of the Inquest, namely Jahid, Khalil, Rakam Singh, Jaheer and Irshad. He copied Inquest and postmortem report in case diary. He recorded statements of the witnesses of recovery memo namely Islam, Isrial, Rakam Singh and the constable Mukesh Kumar. On 06.06.2011, he inspected the torch of Shamshad and prepared its recovery memo (Ex-Ka-18). After completing investigation, he submitted charge sheet (Ex-Ka-19) against accused on 06.06.2011 on which cognizance was taken.
5. Under the direction of In-charge Inspector V.R. Verma, SI Sushil Kumar conducted Inquest (Ex-Ka-6) of the dead body on 01.06.2011 during 10:15 to 12:30 hours. He prepared photo lash, challan lash and letters to the authorities (Ex-Ka-7 to Ka-10) for conducting postmortem of dead body and handed over
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dead body to constables Manoj Kumar and Mahendra Kumar, for taking the dead body up to mortuary. Dr. Dheer Singh (PW-6) conducted autopsy of dead body on 01.06.2011 at 4:30 PM and prepared Postmortem Report (Ex-Ka-4) in which following ante-mortem injuries were noted:-
(i) Multiple abrasions on right side of neck 2 x 1 cm, 2 cm below right angle of mandible.
(ii) Multiple abrasions 2 x 2 cm on left side of neck, 2 cm below the left angle of mandible.
In internal examination, membranes and pleura were found congested. Bone of larynx are fractured. Haematoma present around the larynx. Both lungs and pericardium were congested. Left chamber of heart was full and right chamber was empty. Peritoneum congested. About 200ml. liquid was found in the stomach. Gaseous and fecal matter found in small and large intestines. Gall bladder congested and half full. Pancreas, spleen and kidneys were congested. Bladder was empty.
In the opinion of the Doctor, cause of death was "Asphyxia, as a result of ante-mortem throttling" .
6. On committal, the case was registered as S.T. No. 469 of 2011, State Vs. Haseena and others. Additional Session's Judge framed charges against the accused on 31.10.2011. The accused pleaded “not guilty” and claimed for trial. In order to prove the charges, apart from documentary evidence, the prosecution examined Iliyas (PW-1), the informant, Khalil (PW-2), the witness, who had heard the shriek of Nanu and thereafter seen the accused Wakeel and Abdulla, coming out from the house of Nanu, Constable Mukesh Kumar (PW-3), to prove check FIR, Shadab (PW-4), the son of the deceased, Rakam Singh (PW-5), a Panch of Inquest (Ex-Ka-6) and to prove extrajudicial confession of the accused Haseena and Wakeel, Dr. Dheer Singh (PW6), to prove Postmortem Report (Ex-Ka-4), Inspector V.R. Verma (PW-7) Investigating Officer and Islam (PW-8), to prove recovery of the rope.
7. After completion of the evidence of the prosecution, all the incriminatory facts and materials were put to the accused under Section 313 CrPC. They denied the facts and materials and claimed for false implication
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due to party-fraction in the village between the persons of teli community and pathan community as the accused Abdulla belonged to pathan community and the informant and the witnesses Iliyas, Khalil, Shadab and Islam belonged to teli community. Haseena and Wakeel stated that although Nanu belonged to teli community but he used to work as an agricultural labourer at the houses of Abdulla and other pathans . They stated that Khalil and Iliyas used to keep bad eyes upon Haseena due to which they had falsely implicated them. They stated that Shadab developed bad habits and was a loafer. They ousted Shadab from their house. He was not present at the house on the date of incident. In revenge, he gave false statements. Haseena denied her illicit relation with Abdulla. They examined Shakil Ahmad (DW-1), younger brother of the deceased Nanu, to prove that Shadab had developed bad habits as such Nanu ousted him from his house. He was not living at his house.
8. After hearing the parties, Additional Session's Judge, by impugned judgment held that the defence filed copies of FIR of Case Crime No. 105 of 2012, under Section 302 IPC, Case Crime No. 146 of 2012, under Section 147, 148, 324, 307 IPC and Case Crime No. 71 of 2013, under Section 323, 504, 506, 307 IPC, to prove that they were falsely implicated by the persons of teli community due to party-fraction between teli community and pathan community in the village but these cases were subsequent to the incident as such these were not relevant, for proving false implication. Khalil has no enmity with the accused as such there was no reason for him to give false statement. Site-plan (Ex-Ka-6) was proved from the statement of V.R. Verma (PW-7). Shadab (PW-4) was son of the deceased and a most natural witness, who has fully proved the prosecution case. The deceased Nanu had no enmity with any other person, who could have committed his murder. The charges are fully proved from the statements of Khalil, Shadab and Rakam Singh (PWs-2, 4 and 6). On these findings, he convicted the appellants under Section 302 read with Section 34 IPC and sentenced as mentioned above. Hence, these appeals have been filed.
9. We have considered the arguments of counsel for the parties and examined the record. There is no direct evidence to prove that the appellants have committed the murder of Nanu. The prosecution case is based upon circumstantial evidence. Privy Council in Queen Impress Vs. Hosh Nak,
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1941 ALJ 416 (PC) has held that to prove a case by circumstantial evidence four things are essential i.e. (i) The circumstances from which the conclusion is drawn be fully established; (ii) All the facts should be consistent with the hypothesis, (iii) The circumstances should be of conclusive nature and tendency and (iv) The circumstances should, to moral certainty, actually exclude every hypothesis but the one proposed to be proved.
Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , has held five golden principles which have been stated to constitute the “panchsheel” of the proof of the case based on circumstantial evidence are:
( i ) that the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely “may be” fully established;
( ii ) that 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;
( iii ) that the circumstances should be of a conclusive nature and tendency; ( iv ) that they should exclude every possible hypothesis except the one to be proved; and
( v ) that 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.
Same view has been followed in Padala Veera Reddy v. State of A.P., (1991) SCC (Cri) 407 and Satish Nirankari v. State of Rajasthan, (2017) 8 SCC 497. In Satish Nirankari's case , Supreme Court further held that suspicion, however grave, cannot take place of legal proof. In the case of circumstantial evidence, the influence of guilt can be justified only when all the incriminating facts and circumstances are found to be not compatible with the innocence of the accused or the guilt of any other person.
10. According to the prosecution, following circumstances exist in the present case, namely (i) Haseena had illicit relation with Abdulla, due to which Haseena and Nanu had strained relation. (ii) Few days prior to the incident, Nanu brutally assaulted Haseena, due to which blood had come from her
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private parts, on which Haseena told her son that either he would finish Nanu or she would end her life. (iii) Khalil (PW-2) and Shamshad son of Ibrahim heard one shriek from the house of Nanu on 01.06.2011 at about 1:00 AM. (iv) Immediately thereafter, they rushed towards the house of Nanu and found that the accused Wakeel and Abdulla were coming out from the house of Nanu in flustered position and run away. (v) The witness made query from Haseena about the shriek, then she closed the door and said that she did not know. (vi) On 01.06.2011, in the morning, when the dead body of Nanu was found by Shadab, Haseena and Wakeel were not present at their house. (vii) A plastic rope of three feet length was recovered, on the pointing out of Wakeel, which was allegedly used in tiding the hands and legs of Nanu at the time of throttling. (viii) Haseena and Wakeel made extra-judicial confession before Rakam Singh (PW-6), (ix) Nanu did not have enmity with any other person.
11. In order to prove extra-judicial confession, the prosecution has examined Rakam Singh (PW-5), who has stated that Haseena had illicit relation with Abdulla. Due to which, Nanu used to assault Haseena. The accused Wakeel and Haseena came to his house on 01.06.2011 at about 6:00 AM and said that you were leader and had approach in government offices and police stations and you save them. On inquiry about the incident, they informed that Nanu used to assault Haseena. At this time, Nanu had badly assaulted her due to which blood had come from her private parts. Wakeel said that he could not tolerate this time; Haseena told him that if he would not kill Nanu then she would end her life. They along with Abdulla committed murder of Nanu at about 1:00 AM, by pressing his neck. You save them.
In cross-examination, he stated that Investigating Officer had recorded his statement under Section 161 Cr.P.C. In which, he had stated that Wakeel was son of Nanu. Haseena had illicit relation with Abdulla. Due to her illicit relation Nanu used to assault her. If these facts were not mentioned in his statements under Section 161 Cr.P.C., then he cannot give any reason. He never saw Abdulla while committing any indecedent act with Haseena but had heard in this respect. He has informed Investigating Officer about extrajudicial confession of Haseena and Wakeel, at the time of recording his statement under Section 161 Cr.P.C. If this fact has not been mentioned in his statements under Section 161 Cr.P.C. then he could not give its reason.
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According to Inspector V.R. Verma (PW-7), he has recorded statement of Rakam Singh on 06.06.2011. According to Rakam Singh, extra-judicial confession was made on 01.06.2011 at 6:00 AM. But this fact has not been recorded in his statements under Section 161 Cr.P.C., which was a material improvement. As such extra-judicial confession has not been proved beyond reasonable doubt.
12. Supreme Court in Sahadevan v. State of T.N., (2012) 6 SCC 403 , has held that upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extrajudicial confession an admissible piece of evidence, capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:
( i ) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
( ii ) It should be made voluntarily and should be truthful.
( iii ) It should inspire confidence.
( iv ) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
( v ) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. ( vi ) Such statement essentially has to be proved like any other fact and in accordance with law.
Same principles have been propounded in Pargan Singh v. State of Punjab, (2014) 14 SCC 619.
13. Now we have to examine the motive for committing crime, which is an essential factor in the cases, based upon circumstantial evidence. Circumstances (i) and (ii) mentioned in paragraph-10 (supra) relate to the motive. Supreme Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, has held that proof of motive satisfies the judicial mind about the likelihood of the authorship but its absence only demands deeper forensic search and cannot undo the effect of evidence
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otherwise sufficient. Motives of men are often subjective, submerged and unamenable to easy proof that Courts have to go without clear evidence thereon if other clinching evidence exists. In the case on hand the enmity with Sita Ram being active and admitted, the pique against Hariba, his loyal dependent, is understandable. In Vijay Shankar v. State of Haryana, (2015) 12 SCC 644, has held that in each and every case, it was not incumbent on the prosecution to prove the motive for the crime. Often, motive is indicated to heighten the probability of the offence that the accused was impelled by that motive to commit the offence. Proof of motive only adds to the weight and value of evidence adduced by the prosecution. If the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence. But even if the prosecution has not been able to prove its case on motive that will not be a ground to throw the prosecution case nor does it corrode the credibility of the prosecution case. Absence of proof of motive only demands careful scrutiny of evidence adduced by the prosecution. In the present case, absence of convincing evidence as to motive makes the court to be circumspect in the matter of assessment of evidence and this aspect was not kept in view by the High Court and the trial court. In Abdul Waheed v. State of U.P., (2016) 1 SCC 583, has held that proof of motive of the accused towards the deceased heightens the possibility of the crime. Proof of motive adds weight and value to the evidence of the eyewitnesses.
14. The prosecution has examined, Iliyas, Khalil and Shadab (PWs-1, 2 and 4) as the witnesses of facts. Iliyas (PW-1) has stated that he knew the accused Haseena, Wakeel and Abdulla, resident of his village Afgan Kheda. Haseena was wife of Nanu. Abdulla had illicit relation with Haseena from a long time. Nanu used to object and forbid his wife Haseena and Abdulla in this respect. He had also assaulted Haseena prior to the incident. The accused Wakeel used to take side of his mother Haseena and abide her. Due to this reason, the accused used to keep enmity with Nanu. In cross-examination, he stated that he was next door neighbour of Nanu. He has no visiting term to the house of the deceased. Nanu had nine children. Among them, the eldest was about 20 years old and youngest was 3 years old. Nanu married Haseena about 30 years ago. He knew Abdulla from a long time. Age of Abdulla was about 30 years. He was a driver in Roadways. Nanu was aged about 45 years. At the time of
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incident, he was driving tractor of Khan Sahab.
15 . Khalil (PW-2) stated that he knew the accused Haseena, Wakeel and Abdulla, resident of his village Afgan Kheda. Haseena was wife of Nanu. Abdulla had illicit relation with Haseena, which was known to all the persons of the mohalla. Haseena had eloped one or two times with Abdulla. If any one tried to pacify them, then they used to say that do not talk about their relation. He had heard that Nanu had assaulted Haseena prior to the incident. In crossexamination, he stated that the fact that “Abdulla and Haseena had illicit relation between them, which was known to all the persons of the mohalla; Haseena had eloped one or two times with Abdulla; If any one tried to pacify them, then they used to say that do not talk about their relation.” has been informed by him to Investigating Officer. If these facts were not recorded in his statements under Section 161 Cr.P.C., then he could not give reason. He had visiting term to the house of Nanu. It was incorrect to say that Wakeel used to forbid him for visiting his house due to that reason, he had falsely implicated them.
16. Shadab (PW-4) stated that Nanu was his father. The accused Haseena, was his mother, Wakeel was his brother and Abdulla was resident of his village Afgan Kheda. Abdulla had illicit relation with his mother Haseena, who used to come his house. His mother also used to go the house of Abdulla. His father Nanu used to forbid his mother Haseena from meeting with Abdulla. But his mother usually did not abide him. For this reason his father used to assault his mother, in which his brother Wakeel used to take side of his mother. All the three accused used to threaten his father to kill him. Three-four days prior to the incident, his mother went to the house of Abdulla. For which his father had assaulted his mother then his mother had threatened him that now she would not escape him alive. In cross-examination, he stated that his father Nanu was married once only. They were nine brothers and sisters. There names were Wakeel (eldest), Danish, Shadab, Altaf, Munna, Sayeesta, Gulfasa, Samaiya and Chand. Sayeesta was married to Azam resident of Gageet. Remaining were living at his house. Thereafter said that Danish was doing work of painter and living in Himachal Pradesh. On the date of incident, he was not at the house. Shadab was doing tailoring work. His father was driver on the tractor of Ashraf, from many years. It is correct to say that his father, brother, sister or he
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had not taken any proceeding in the Court or police station, in respect of illicit relation of his mother and Abdulla. He had informed Investigating Officer that the accused Abdulla used to threaten. If this facts was not mentioned in his statements under Section 161 Cr.P.C., then he could not give any reason. He or his father did not make any complaint of the incident, occurred two-three days prior to the incident.
17. From the statements of Iliyas, Khalil and Shadab (PWs-1, 2 and 4), it was proved that Haseena was aged about 43 years and Abdulla was aged about 30 years at the time of occurrence. Haseena married to Nanu thirty years back and had nine children, among them Wakeel was eldest and youngest was three years old. Nanu was doing the work of driver on the tractor of Ashraf. Abdulla was driver in Roadways bus. So far as illicit relation of Abdulla and Haseena was concerned there was no consistency between the statement of the witnesses. Iliyas and Khalil (PWs-1 and 2) have stated that Haseena had eloped with Abdulla one or two times. His statement in this respect is not corroborated with the statements of Shadab. Statements of the witnesses in this respect was hearsay and material improvement in Court. If Haseena would have eloped then some complaint in this respect would have been given of Nanu. Similarly, if Nanu had brutally assaulted Haseena three-four days prior to the incident, then she would have made complaint in this respect before herself committing murder of her husband, from whom she had nine children and her husband was an earning member of the family. It does not inspire confidence that Wakeel, who was eldest son of Nanu, would commit his murder and help his mother to live in unchastity. Circumstances (i) and (ii) as mentioned in paragraph-10 (supra) are not proved beyond reasonable doubt.
18. Circumstances (iii) that Khalil (PW-2) and Shamshad son of Ibrahim heard one shriek from the house of Nanu on 01.06.2011 at about 1:00 AM. (iv) that immediately thereafter, they rushed towards the house of Nanu and found that the accused Wakeel and Abdulla were coming out from the house of Nanu in flustered position and run away and (v) that the witness made query from Haseena about the shriek, then she closed the door and said that she did not know, are being proved from the statements of Khalil (PW-2). Shamshad, who was allegedly having torch at that time, did not enter the witness box. Khalil (PW-2) is a chance witness. Supreme Court in Satbir v. Surat Singh, (1997) 4
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SCC 192, Harjinder Singh v. State of Punjab, (2004) 11 SCC 253, Acharaparambath Pradeepan v. State of Kerala, (2006) 13 SCC 643, Sarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360) and Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 has held that the evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence. In Shankarlal v. State of Rajasthan, (2004) 10 SCC 632 has held that deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded.
19. Khalil (PW-2) stated that on the date of incident, he was doing labourer work at the tent shop of Rizwan of his village. He was coming back to his house after finishing tent work on 01.06.2011 at about 1:00 AM. When he reached at the chowk of his village, Shamshad met him. They heard a shriek coming from the house of Nanu. When they went in the lane, they found that Abdulla and Wakeel were coming out in flustered position. Haseena was standing on the door of the house of Nanu. When they asked her about the shriek, then she told that this was usual sound and closed her door. He had seen the aforesaid incident, in the light of torch belonging to Shamshad. Next day, he came to know through Shadab that his father had died in night. Then he had informed the persons collected there about the incident, occurred in night. In morning Haseena was not present at her house. In cross-examination, he stated that in the night of the date of occurrence, he had booking for installing tent at villages Dhakdehi and Kheda villages. He installed the tent at village Dhakdehi first. At village Kheda, other labourers installed the tent. He started installing tent from 8:00 PM and finished it up to 11:00 PM. From Dhakdehi he proceeded for his shop at 11:00 PM and reached within one hour. Distance between Dhakdehi to his shop, which situated at Kheda-Gangoh road, was about 7.5 kilometer. Mangeram was also with him and they had come on a motorcycle. From his tent shop, he and Mangeram came to his house, whose house was at distance of 100 paces, from the road. His house was at a distance of 20-25 paces from chowk in south. Distance of the house of Mangeram, from his tent shop was about 300 paces and his house was 20-25 paces. There was light of trucks on the road. On his pointing out, spot inspection made after six days of the incident, by Investigating Officer. After
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lodging FIR, he came to know that the police had come on the spot at about 10:00 to 10:30 AM. When the police came on the spot he was at the place of incident. The date of incident was a dark night and on that day, there was no power supply in the village. Shamshad had grossery shop, which he used to close after sun set.
20. From the statement of Khalil (PW-2), it is clear that he was installing tent at village Dhakdehi on 31.05.2011. From Dhakdehi he proceeded for his shop at 11:00 PM, on a motorcycle. Distance between Dhakdehi to his shop was about 7.5 kilometer. Distance between his shop to his house was 20-25 paces only. It was not probable that after finishing the work of installation of tent at 11:00 PM, a labourer would spent his time anywhere instead of going to his house. He would not take more than half an hour in covering the distance of 7.5 kilometer from a motorcycle. His presence at the chowk at 1:00 AM, was highly doubtful. According to him, he was present on the spot on 01.06.2011 at about 10:00 to 10:30 AM, when the police came on the spot. Inspector V.R. Verma (PW-7) stated that after reaching at the spot, he recorded statements of the informant Iliyas, the son of the deceased Shadab and the witness of FIR Shamshad. Khalil was also mentioned as the witness in FIR but his statement was recorded by Investigating Officer on 06.06.2011. If he was present on the spot, there was no reason for not recording his statements by Investigating Officer on 01.06.2011. Presence of Khalil (PW-2) at 1:00 AM on 01.06.2011 at the chowk was doubtful. Circumstances (iii), (iv) and (v) as mentioned in paragraph-10 (supra), are also not proved beyond reasonable doubts.
21. Next circumstance is that on the pointing out of Wakeel, a plastic rope of three feet length was recovered. So far as recovery of plastic rope is concerned, from Postmortem Report (Ex-Ka-4), it is not proved that Nanu had any abrasion/contusion on his wrist or legs. Tying of his wrist and leg were not proved.
22. Next circumstance is that on 01.06.2011, in the morning, when the dead body of Nanu was found by Shadab, Haseena and Wakeel were not present at their house. The manner in which, FIR was lodged was very strange. In the FIR, it has been stated that in morning, Shadab son of Nanu, who was sleeping in another room, finding his father as dead, started shouting in neighbourhood,
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then the correct facts regarding incident were disclosed. They went and saw that there were injury marks on the neck and wrist of Nanu. The written complaint (Ex-Ka-1) was scribed by Zahid Hasan and signed by Iliyas (PW-1). Shadab (PW-4) in his cross-examination has stated that he woke up in between 7:00 - 8:00 AM in the morning, After freshening up, he found that his father was lying dead inside the kachcha room. Then he went to the house of Mustkim son of Majid, his neighbourer and called him. From the house of Mustkim, his wife and children had also come, then it was about 9:00 AM. When Iliyas, Khalil and Shamshad went to police station, they did not meet him. FIR was lodged at the police station at 9:30 AM on 01.06.2011, which shows that Zahid Hasan scribe had manipulated in lodging the FIR, without there being any talk with Shadab. When Shadab (PW-4), the son of the deceased, was present at his house, then why the FIR was lodged by Iliyas (PW-1), who even did not have any visiting terms with Nanu. After lodging FIR, it may be probable that Haseena and Wakeel might have avoided their arrest, although Wakeel was arrested on the same day.
23 . So far as enmity with the witnesses and the informant is concerned, the accused took defence that due to party-fraction in the village, the witnesses have falsely implicated him and are giving false statements. Iliyas (PW-1) in his cross-examination admitted that Jahid belonged to teli community and has contested election of Pradhan against Mahendra Pradhan and murder of Yasin (father of Jahid) had taken place in which Allahrakkha, Mohd. Umar and Abid were the accused. He was given suggestion that during election, Nanu had supported Jahid, instead of supporting Mahendra (the elected candidate), due to which Jahid had scribed false complaint against the accused. This fact has also been admitted that Khalil (PW-2) in his cross-examination has admitted that Allahrakkha, the accused, was Pradhan. According to the accused, deceased Nanu although belonged to teli community, but was working as a labour at the house of Pathan. Papers relating to same cases, i.e. Case Crime No. 105 of 2012, u/s 302 IPC, Case Crime No. 146 of 2012, u/s 147, 148, 324, 307 IPC and Case Crime No. 71 of 2013, u/s 323, 504, 506, 307 IPC were filed, but these papers were not accepted by the Trial Court on the ground that the incident in these cases were subsequent to the present incident, but from these cases also, party-fraction in the village between the teli community and
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Pathan community was proved. Similarly, Smt. Haseena has stated that Iliyas and Khalil (PW-1 and 2) were having bad eyes upon her, due to which they have falsely implicated her in the murder of her husband. Similar statement has also been given by Wakil. Thus, on behalf of the accused, motive for false implication has also been given.
24. So far as Sadab (PW-4) is concerned, Smt. Haseena and Wakil have stated that Sadab had developed bad character and was loafing, therefore, he was ousted from the house, as such, he was annoyed and was giving false statement against them. Statement of Sadab (PW-4) in respect of sleeping of Nanu was not consistent inasmuch as in his cross-examination, at one place he had stated that his father Nanu was sleeping in the front kuttcha room, but at another place, he stated that his father was sleeping in inner side kuttcha room, while his brother Wakil and mother Smt. Haseena were sleeping in front side of kuttcha room. Dead body of Nanu was found in the tirpal shed, which was outside the kuttcha room. It is admitted that youngest child of Smt. Haseena was three years old and in usual course, the mother used to sleep along with her tender aged child in the night. On the basis of the aforesaid facts, presence of Sadab at his house also appears to be doubtful, inasmuch as, if Sadab was present, he would have lodged the FIR and would have also been made panch in the inquest, but neither he lodged the FIR, nor he was made panch in the inquest.
25. In view of aforesaid discussions, Criminal Appeal No. 3252 of 2014 and Criminal Appeal No. 3253 of 2014 succeed and are allowed . The judgment of Additional Session's Judge, Court No. 6, Saharanpur dated 07.07.2014, passed in S.T. No. 469 of 2011, State of U.P. Vs. Haseena and others (arising out of Case Crime No. 71/301 of 2011, under Section 302 read with Section 34 IPC), P.S. Nakud, district Saharanpur, convicting them under Section 302 read with Section 34 I.P.C. is set aside. The appellants are acquitted from the charges.
26. Office is directed to remit the original record to the court below and send a copy of the judgment for its compliance.
Order date: 05.08.2019 Jaideep/-
[Umesh Kumar,J.] [ Ram Surat Ram (Maurya),J.]
3 issues framed by the court
Did the circumstantial evidence establish the appellants' guilt of murder beyond reasonable doubt?
Was the alleged extra-judicial confession proved beyond reasonable doubt?
Could the chance witness's testimony be accepted when his presence at the place of occurrence was doubtful?
Colour shows how this judgement treated each authority
Queen Impress Vs. Hosh NakRelied on¶28
1941 ALJ 416 (PC)
Sharad Birdhichand Sarda v. State of MaharashtraApplied¶29
Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 · Who else cites this
Padala Veera Reddy v. State of A.P.Relied on¶34
Padala Veera Reddy v. State of A.P., (1991) SCC (Cri) 407 · Who else cites this
Satish Nirankari v. State of RajasthanRelied on¶34
Satish Nirankari v. State of Rajasthan, (2017) 8 SCC 497. · Who else cites this
Sahadevan v. State of T.N.Relied on¶42
Sahadevan v. State of T.N., (2012) 6 SCC 403 · Who else cites this
Pargan Singh v. State of PunjabRelied on¶48
Pargan Singh v. State of Punjab, (2014) 14 SCC 619. · Who else cites this
Shivaji Sahabrao Bobade v. State of MaharashtraRelied on¶49
Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, · Who else cites this
Vijay Shankar v. State of HaryanaRelied on¶51
Vijay Shankar v. State of Haryana, (2015) 12 SCC 644, · Who else cites this
Abdul Waheed v. State of U.P.Relied on¶51
Abdul Waheed v. State of U.P., (2016) 1 SCC 583, · Who else cites this
Satbir v. Surat SinghRelied on¶62
Satbir v. Surat Singh, (1997) 4 SCC 192, · Who else cites this
Harjinder Singh v. State of PunjabRelied on¶62
Harjinder Singh v. State of Punjab, (2004) 11 SCC 253, · Who else cites this
Acharaparambath Pradeepan v. State of KeralaRelied on¶62
Acharaparambath Pradeepan v. State of Kerala, (2006) 13 SCC 643, · Who else cites this
Sarvesh Narain Shukla v. Daroga SinghRelied on¶62
Sarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360) · Who else cites this
Jarnail Singh v. State of PunjabRelied on¶62
Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 · Who else cites this
Shankarlal v. State of RajasthanApplied¶62
Shankarlal v. State of Rajasthan, (2004) 10 SCC 632 · Who else cites this
2 provisions across 2 enactments
Haseena
Wakeel
Abdulla
State Of U.P.
Ram Surat Ram (Maurya)
Umesh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
