Allowed

Firoj Khan S/O Noor Mohammed B/C Musalman v. State of Rajasthan through Pp

Rajasthan HC3 Jul 2019CRLAD/50/2019

Case brief

AI extract

What is this about?

Appeal against conviction and sentence for murder. High Court held that prosecution failed to establish a complete chain of circumstantial evidence. Disbelieved trial court's reasoning regarding chappal recovery and injuries. Acquitted appellant giving benefit of doubt and set him at liberty on bond.

What did the court decide?

Impugned judgment set aside. Appellant acquitted under Sections 302, 454 IPC. Acquittee set at liberty on bond of Rs. 25,000/- along with surety.

Firoj Khan S/O Noor Mohammed B/C Musalman Vs… — Murder and Culpable Homicide | Rajasthan HC (2019)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

D.B. Criminal Appeal No. 50/2019

¶3

Firoj Khan S/o Noor Mohammed B/c Musalman, R/o Kila Sagar Mohalla Ward No 27 Dausa Ps Kotwali Dausa Dist. Dausa Raj. (At Present Accused Appellant Is Confined In Central Jail Jaipur)

¶4

----Appellant

¶5

Versus

¶6

State Of Rajasthan Through Pp, Raj.

¶7

----Respondent

¶8

For Appellant(s) : Mr. Nawal Singh Sikarwar For Respondent(s) : Mr. Javed Choudhary, PP

¶9

HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

¶10

Order

¶11

03/07/2019

¶12

Appellant has filed this appeal challenging his conviction and sentence as ordered by the trial court vide impugned judgment/order dated 17.12.2018 under Section 302 and 454 Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’).

¶13

Prosecution story, in brief, is that complainant was Principal of Central Academy, Dausa. Abhay Pandey was working as a cashier in the school and was residing in the school campus. Rahul Kandera and Makhan were working as Chowkidars . Rahul Kandera remained on duty from 6.30 a.m. to 6.30 p.m., whereas, Makhan remained on duty from 6.30 p.m. to 6.30 a.m. Abhay Pandey was murdered on the night of 14.9.2016. Complainant received a phone call from Director Vijay Laxmi Mishra on 14.9.2016 at 9.15

¶14

(2 of 11) [CRLAD-50/2019]

¶15

p.m. that Abhay Pandey had been murdered. He immediately reached the school premises. Police was already present at the spot. He was informed by Ojha that Laptop, mobile phone and money lying on the rack were missing.

¶16

On the basis of the statement of the complainant, formal FIR No.596 dated 14.9.2016 was registered at Police Station Kotwali, Dausa under Section 302 IPC.

¶17

After completion of investigation and necessary formalities, challan was presented against the appellant and his co-accused Rahul Kandera and Sunil Khan. Accused did not plead guilty and claimed trial.

¶18

Charges were framed against the accused under section 392, 302, 454 and 120B IPC. Charge was also framed against the appellant under section 4/25 of the Arms Act 1959 (hereinafter referred to as ‘the Act’).

¶19

In order to prove its case, prosecution examined 12 witnesses. Appellant when examined under Section 313 Cr.P.C., after the close of prosecution evidence, prayed that he was innocent and had been falsely involved in this case. His signatures had been obtained on blank papers after giving beatings to him. False recoveries had been shown from him.

¶20

Accused did not examine any witness in their defence.

¶21

Trial court vide impugned judgment/order dated 17.12.2018 ordered the conviction of the appellant under Section 302 and 454 IPC and acquitted him of the charges framed against him under section 392, 392/120B IPC and Section 4/25 of the Act. Appellants

¶22

(3 of 11)

¶23

[CRLAD-50/2019]

¶24

Rahul Kandera and Sunil Khan were acquitted of the charges framed against them. Hence, present appeal by the appellant.

¶25

Learned counsel for the appellant has submitted that the present case rests on circumstantial evidence. Prosecution was required to establish complete chain of circumstances leading to the guilt of the appellant. Trial court has not believed the recoveries allegedly effected on the basis of disclosure statements suffered by the appellant or his co-accused during trial. Consequently, appellant was acquitted of the charges framed against him under section 392 IPC. Recovery of Knife from the appellant and his co-accused was also disbelieved by the trial court. Due to this reason, appellant was acquitted of the charge framed against him under section 4/25 of the Act. Thus, there was no motive against the appellant to have committed murder of deceased. Appellant was not known to the deceased. Appellant does not have any criminal antecedents. The circumstance of footprints lifted from the spot, which had allegedly matched with the chappal of the appellant, has been falsely foisted by the prosecution to implicate the appellant in this case. Case of the appellant was on a similar footing as that of Rahul Kandera. However, accused Rahul Kandera was acquitted by the trial court. Appellant was also liable to be acquitted.

¶26

Learned State counsel has opposed the appeal and has submitted that the appellant has been rightly convicted by the trial court.

¶27

Present case relates to murder of Abhay Pandey. Deceased was residing in the school premises. Case rests on circumstantial evidence. It has been held by the Hon’ble Supreme Court in case

¶28

(4 of 11)

¶29

[CRLAD-50/2019]

¶30

of Brajendrasingh vs. State of Madhya Pradesh AIR 2012

¶31

Supreme Court 1552 , as under:-

¶32

“There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial. ”

¶33

It has also been held by the Hon’ble Supreme Court in Bachan Singh vs. State of Punjab 1980 (2) SCC 684 , as

¶34

under:-

¶35

“ In the light of the above conspectus, we will now consider the effect of the aforesaid legislative changes on the authority and efficacy of the propositions laid down by this Court in Jagmohan's case. These propositions may be summed up as under:

¶36

(5 of 11)

¶37

[CRLAD-50/2019]

¶38

(i) The general legislative policy that underlies the structure of our criminal law, principally contained in the Indian Penal Code and the Criminal Procedure Code, is to define an offence with sufficient clarity and to prescribe only the maximum punishment therefore, and to allow a very wide discretion to the Judge in the matter of fixing the degree of punishment. With the solitary exception of Section 303, the same policy permeates Section 302 and some other sections of the Penal Code, where me maximum punishment is the death penalty.

¶39

(ii) (a) No exhaustive enumeration of aggravating or mitigating circumstances which should be considered when sentencing an offender, is possible. "The infinite variety of cases and facets to each case would make general standards either meaningless 'boiler plate' or a statement of the obvious that no Jury (Judge) would need." (Referred to McGantha v. California (1971) 402 US 183 (b) The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment.

¶40

(iii) The view taken by the plurality in Furman v. Georgia decided by the Supreme Court of the United States, to the effect, that a law which gives uncontrolled and un-guided discretion to the Jury (or the Judge) to choose arbitrarily between a sentence of death and imprisonment for a capital offence, violates the Eighth Amendment, is not applicable in India. We do not have in out Constitution any provision like the Eighth Amendment, nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply "the due process" clause. There are grave doubts about the expediency of transplanting western experience in our country. Social conditions are different and so also the general intellectual level. Arguments which would be valid in respect of one area of the world may not hold good in respect of another area.

¶41

(iv) (a) This discretion in the matter of sentence is to be exercised by the Judge judicially, after balancing all the aggravating and mitigating circumstances of the crime.

¶42

(b) The discretion is liable to be corrected by superior courts. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused.

¶43

In view of the above, it will be impossible to say that there would be at all any discrimination, since crime as crime

¶44

(6 of 11)

¶45

[CRLAD-50/2019]

¶46

may appear to be superficially the same but the facts and circumstances of a crime are widely different Thus considered, the provision in Section 302, Penal Code is not violative of Article 14 of the Constitution on the ground that it confers on the Judges an un-guided and uncontrolled discretion in the matter of awarding capital punishment or imprisonment for life.

¶47

(v) (a) Relevant facto and circumstances Impinging on the nature and circumstances of the crime can be brought before the Court at the pre-conviction stage, notwithstanding the fact that no formal procedure for producing evidence regarding such facto and circumstances had been specifically provided. When counsel addresses the Court with regard to the character and standing of the accused, they are duly considered by the Court unless there is something in the evidence itself which belies him or the Public Prosecutor challenges the facts.

¶48

(b) It is to be emphasised that in exercising its discretion to choose either of the two alternative sentences provided in Section 302, Penal Code, "the Court is principally concerned with the facts and circumstances Whether aggravating or mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance With the provisions of the Indian Evidence Act in a trial regulated by the Cr. P. C. The trial does not come to an end until all the relevant facts are proved and the counsel on both sides have an opportunity to address the Court. The only thing that remains is for the Judge to decide on the guilt and punishment and that is what Sections 306(2) and 309(2), Cr. P. C. purport to provide for. These provisions are part of the procedure established by law and unless it is shown that they are invalid for any other reasons they must be regarded as valid. No reasons are offered to show that they are constitutionally invalid and hence the death sentence imposed after trial in accordance with the procedure established by law is not tin-constitutional under Article 21.”

¶49

Let us examine whether, in the present case, prosecution has been successful in bringing on record the entire chain of circumstances leading towards guilt of the appellant.

¶50

(7 of 11)

¶51

[CRLAD-50/2019]

¶52

PW-6 Makhan deposed that on 14.9.2016, he had gone to the school at 7.45 p.m. to perform his duty. He saw that the main shutter was locked and there was a lock on the Principal’s room. The room where Pandey Sir was residing, was bolted from outside but was not locked. He stayed outside and waited for Pandey Sir believing that Pandey Sir must have gone here and there to roam around. After some time he called Pandey Sir but he did not get any response. At about 8.30 p.m. he made a phone call to Ojha Sir, telling him that Pandey Sir was not answering his call. However, Ojha Sir did not pick-up the phone and the call was answered by his wife. After some time, Ojha Sir called him and he informed him that Pandey Sir was not responding to his call. He was told by Ojha Sir that he should go inside the room and check. Then, he informed Ojha Sir that the main shutter of the room of the Principal were locked. Then, Ojha Sir came to the spot at about 9.00 p.m. alongwith his wife. Then they opened the room of Pandey Sir and saw that the key of the room was blood stained. Articles on the table were lying in scattered condition. They opened the lock of the Principal room and saw that Pandey Sir was lying dead in a pool of blood. Pandey Sir had been murdered with the help of a Knife. They informed the police. Police reached the spot. Police made inquiry from him and Rahul Kandera. Rahul Kandera stated that on account of greed for money, he alongwith Firoz Khan had committed murder of Pandey Sir and had taken away laptop, mobile phone and some cash.

¶53

Statement of PW-6 is one circumstance relied upon by the prosecution. So far as PW-6 is concerned, he has stated that in his presence, Rahul Kandera has stated before the police that he

¶54

(8 of 11) [CRLAD-50/2019]

¶55

alongwith Firoz Khan had committed murder of Abhay Pandey. However, Rahul Kandera has been acquitted by the trial court. Any confession made by Rahul Kandera before the police, in itself cannot bind the appellant Firoz Khan.

¶56

During investigation recoveries of laptop, mobile phone, Knife and blood stained shirt were effected on the basis of the statements of appellant as well as Rahul Kandera suffered under section 27 of Indian Evidence Act 1872. However, the said recoveries were disbelieved by the trial court and all the accused were acquitted qua the charges framed against them under section 392 IPC. Appellant was also acquitted qua the charge against him under section 4/25 of the Act.

¶57

Since, the present case rests on circumstantial evidence, motive gains significance. Since recoveries allegedly effected during investigation at the behest of the accused, had not been believed by the trial court, appellant cannot be said to be having any motive to commit the murder of Abhay Pandey. Prosecution has not brought any circumstance on record to establish that the appellant had any ill-will or enmity against Abhay Pandey to have committed his murder. The plea of the prosecution that the accused had committed murder of Abhay Pandey with a view to loot laptop, mobile phone and cash etc. falls flat as recoveries of the said articles during investigation have been disbelieved by the trial court and accused have been acquitted with regard to the charge framed in this regard under section 392 IPC.

¶58

Circumstance relied upon by the trial court against the appellant is with regard to the recovery of his chappals, which were allegedly stained with blood. As per the prosecution story

¶59

(9 of 11)

¶60

[CRLAD-50/2019]

¶61

footprints lifted from the spot matched with the right foot chappal of the appellant. As per the Forensic Science Laboratory report, the blood stains found on the chappals worn by the appellant matched with the blood group of the deceased.

¶62

Investigating Officer PW-11 in his cross examination admitted that he had not lifted any other footprints from the spot, apart from the chappals of appellant Firoz Khan. He admitted that the some other footprints were also available at the spot. Exhibit P-8 is the memo whereby chappals worn by the appellant were taken in police possession. The said memo has been attested by witnesses Laxmi Kant and Pradosh Lal. Both the said witnesses are police officials. PW-3 Pradosh Lal in his cross-examination deposed that the chappals which were taken in possession vide memo Exhibit P-8 were lying near the door of the house. PW-4 Laxmi Kant deposed in his cross-examination that when they went to the house of the appellant, the door was open from inside and mother of the appellant was present there. When they met the appellant, it appeared that he was sleeping and had just got up and come out of the room when called. He wore the chappals which were lying outside the door. The In-charge police officer had not enquired from the mother of the appellant or from the neighbours that who had kept the chappals near the door. No independent witness was joined at the time of recovery. In such a situation, it would not be a safe to base conviction of the appellant on this circumstance.

¶63

Another circumstance taken into consideration by the trial court to the order conviction of the appellant is that he had suffered four injuries as per his medical examination and the said

¶64

(10 of 11) [CRLAD-50/2019]

¶65

injuries might have been received by the appellant at the time of incident. Incident had occurred in the night of 14.9.2016. Appellant was arrested on 15.9.2016. On that day, appellant was not got medically examined. However, appellant was got medically examined on 17.9.2016 and it was found that there were four bruises on the person of the appellant. Injuries were also found on the person of Rahul Kandera, when he was got medically examined on 17.9.2016. Since, appellant was not got immediately medically examined after his arrest, the circumstance that there were injuries on his person fails to advance the prosecution story.

¶66

Thus, in the present case circumstances brought on record by the prosecution fail to complete the chain of circumstances leading to the guilt of the accused and negate the possibility of someone else having committed the crime.

¶67

It is a settled proposition of law that an accused is presumed to be innocent till proved guilty. Prosecution is required to prove its case against the accused beyond the shadow of reasonable doubt. However, in the present case, prosecution story is rendered doubtful in view of discussion made herein above.

¶68

Accordingly, we are of the opinion that the trial court has erred in ordering the conviction of the appellant under section 302 and 454 IPC. Appellant is liable to be acquitted of the charges framed against him by giving him benefit of doubt.

¶69

Accordingly, this appeal is allowed. Impugned judgment/ order passed by the trial Court dated 17.12.2018 are set aside. Appellant is acquitted of the charges framed against him under Sections 302, 454 IPC by giving him benefit of doubt. Appellant

¶70

(11 of 11)

¶71

[CRLAD-50/2019]

¶72

who is in custody be set at liberty forthwith, if not required in any other criminal case.

¶73

In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant Firoj Khan S/o Noor Mohammed is directed to furnish a personal bond in the sum of Rs.25,000/-, and a surety in the like amount, before the Registrar(Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.

¶74

(GOVERDHAN BARDHAR),J

¶75

(SABINA),J

¶76

Brijesh 71.

Firoj Khan S/O Noor Mohammed B/C Musalman v. State of Rajasthan through Pp

Case brief

What is this about?

What did the court decide?

Firoj Khan S/O Noor Mohammed B/C Musalman v. State of Rajasthan through Pp

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ramswaroop @ Pappu S/O Bhagwana Ram B/C Gurjar Vs State of Rajasthan

Smt. Madhu Devi Wife of Kailash Daroga Vs State of Rajasthan

Sohan Lal S/O. Raghuveer Vs State of Rajasthan

Kalicharan S/O Shri Brijmohan @ Badshah B/C Prajapat Vs State of Rajasthan

Chetram S/O Chhote Lal B/C Mali Vs State of Rajasthan

Mohan Lal Dhanka S/O Late Sh. Birdharam B/C Dhanka Vs State of Rajasthan