Abdul Hamid v. State — 1994 DIGILAW 664 (BOM)

JUDGMENT A.P. Shah, J. - The aforesaid two Criminal Appeals by the accused NO.1 Shabbir and the accused No.2 Hamid seek to challenge the order of the Sessions Judge; South Goa, convicting them under Section 302 read with Section 34 of the I.P.C. for committing murder of one Dangappa Pujari and sentencing them to imprisonment for life and to pay a fine of Rs. 2000/- or in default to undergo 6 months of imprisonment. 2. Briefly, the prosecution case is that deceased Dangappa Pujari was residing with his family at Monto Dongor, Margao. Deceased Dangappa was working as a mason. Both the accused were also living in the same area and were also working as mason. The accused used to visit Dangappa's house frequently. On March 2,1991 the accused Nos. 1 and 2 alongwith one Tipu Sultan came to Dangappa's house and called Dangappa, who was sitting inside the house chitchatting with his father Bhirappa P.W. 4. Bhirappa asked his daughter Laxmi P.W. 3 to see who is calling Dangappa. Laxmi came out and saw accused Nos. 1 and 2 standing outside. Dangappa then came out and all of them went away on a motor-bike. Accused then took Dangappa to the Government forest at Matrojem and there the accused murdered Dangappa with blows of a knife and left his body in the forest. Since Dangappa failed to return after he left the house on the night of March 2,1991 Bhirappa started to search for Dangappa. After about 3 days, Bhirappa also lodged a missing report with the police. On May 4, 1991, one Madhu came to the Panchayat Office of Kirlapal-Dabal and informed P.W. 1 Ashok Patil, a member of Panchayat, that dead body of a person was lying in the jungle of Matojem. Thereupon, P.W. I informed the police about the discovery of the dead body. The police finally managed to recover the dead body from the forest on May 8, 1991. The F.I.R. then came to be recorded. The accused were arrested on May 17, 1991. 3. It may be mentioned that the prosecution case is that besides the two accused, Tipu Sultan was also involved in the offence as he had accompanied the accused to the Government forest and that he had also taken part in the assault on the deceased. The accused were arrested on May 17, 1991. 3. It may be mentioned that the prosecution case is that besides the two accused, Tipu Sultan was also involved in the offence as he had accompanied the accused to the Government forest and that he had also taken part in the assault on the deceased. However, Tipu Sultan was not charged with the offence as he had been granted pardon in terms of Section 306 of Cr.P.C. 4. At the trial, the prosecution examined in all 26 witnesses including Tipu Sultan, who was examined as P.W. 23, but he did not support the prosecution. None of the prosecution witnesses is an eye witness to the incident. The prosecution thus mainly relied on the evidence which was of circumstantial nature. The learned Sessions Judge, on appreciation of evidence led by the prosecution, held, inter alia, that the prosecution has proved the charge against both the accused beyond reasonable doubt and in that view of the matter, the accused were found to be guilty of offence under Section 302 read with Section 34 of the I.P.C. 5. Mr. Sawant, learned counsel for the accused Nos. 1 and 2, strenuously urged that there was utter non-compliance of Clause (a) of Sub-section (4) of Section 306 of Cr. P.C. in as much as that after recording the statement of the approved Tipu Sultan under Section 164 of the Cr. P.C. and after granting him pardon the 2pprover was not examined as witness. by the learned Magistrate, who took cognizance of the offence as required by Clause (a) of sub-section (4) of Section 306 of Cr. P.C., but he was examined as a witness only at the time of trial and as such not only the committal order but the entire trial was vitiated. Mr. Sawant placed heavy reliance on the decision in Kalu Khoda and Ors. v. State1, In re Ramasamy and Ors.2 and Uravakonda Vijayaraj Paul v. The State and Ors.3. Mr. Sawant also relied upon judgments of Supreme Court in State (Delhi Admn.) v. Jagjit Singh4 and Suresh Chandra Bahri and Ors. v. State of Bihar5 in support of his plea that the committal order and the prosecution are rendered illegal on account of non-compliance of the mandatory provision of sub-section (4) of Section 306 Cr.P.C. Mr. Mr. Sawant also relied upon judgments of Supreme Court in State (Delhi Admn.) v. Jagjit Singh4 and Suresh Chandra Bahri and Ors. v. State of Bihar5 in support of his plea that the committal order and the prosecution are rendered illegal on account of non-compliance of the mandatory provision of sub-section (4) of Section 306 Cr.P.C. Mr. Sawant brought to our notice that the application of the State for sanction to prosecute Tipu Sultan under Section 308 of Cr.P.C. was dismissed by this Court. Mr. Sawant pointed out that it was held by this Court that the requirement of Section 306(4) Cr.P.C. was not complied with. Mr. Sawant also pointed out that Tipu Sultan was subsequently prosecuted in Sessions Case No. 23 of 1993 and the learned Sessions Judge acquitted him under his judgment dated August 16, 1994. Mr. Sawant contended that the order of conviction is liable to be set aside on the ground of in fraction of Section 306(4) of Cr.P.C. It was also urged by Mr. Sawant that the circumstances relied upon by the learned Sessions Judge for conviction of the accused are not completing the chain so as to lead to the conclusion that the accused and no other could have been the assailants. Mr. Sawant further urged that the circumstances brought on record are not sufficient to establish the guilt of the accused beyond reasonable doubt. 6. We find considerable substance in the contentions of Mr. Sawant. There is no dispute that the approver Tipu Sultan was not examined as a witness as required by the provisions of Section 306 (4) Cr.P.C. Admittedly, the pardon was granted by the Chief Judicial Magistrate on May 27, 1991. The Chief Judicial Magistrate recorded the statement of Tipu Sultan on May 31,1991 but was of no consequence as admittedly the charge-sheet came to be filed much later on June 28, 1991 and the Chief Judicial Magistrate was required to examine Tipu Sultan as a witness after taking cognizance of the offence. However, the Chief Judicial Magistrate without complying with sub-section (4) of Section 306, proceeded to pass order or committal on June 29, 1991. Thus, admittedly, the provisions of sub-section (4) of Section 306 were not complied with before committing the accused to the Sessions Court. 7. However, the Chief Judicial Magistrate without complying with sub-section (4) of Section 306, proceeded to pass order or committal on June 29, 1991. Thus, admittedly, the provisions of sub-section (4) of Section 306 were not complied with before committing the accused to the Sessions Court. 7. It is well settled that provision of Section 306 (4) are mandatory and non-compliance of the said provisions will render the committal order and consequently, the prosecution itself illegal. In Jagjit Singh's case (supra) the Supreme Court held that sub-section (4) of Section 306 casts an obligation on the prosecution to examine the approver as witness both in the committal Court as well as in the trial Court. In Suresh Chandra's case (Supra), the Supreme Court observed as follows : "A bare reading of Clause (a) of subsection (4) of Section 306 of the Code will go to show that every person accepting the tender of pardon made under subsection (1) has to be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial if any. Sub-section (5) further provides that the Magistrate taking cognizance of the offence shall, without making any further enquiry in the case, commit it for trial to anyone of the Court mentioned in Clause (i) or (ii) of sub-section (5), as the case may be. Section 209 of the Code deals with the commitment of cases to the Court of Session when offence is tried exclusively by that Court. The examination of accomplice or an approver after accepting the tender of pardon, as a witness in the Court of the Magistrate taking cognizance of the offence is thus a mandatory provision and can't be dispensed with and if this mandatory provision is not complied with it vitiates the trial. As envisaged in sub-section (1) of Section 306, the tender of pardon is made on the condition that an approver shall make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. Consequently, the failure to examine the approver as a witness before the Committing Magistrate would not only amount to breach (s) of the mandatory provisions contained in clause of sub-section (4) of Section 306, but it would also be inconsistent with and in violation of the duty to make a full and frank disclosure of the case at all stages. Consequently, the failure to examine the approver as a witness before the Committing Magistrate would not only amount to breach (s) of the mandatory provisions contained in clause of sub-section (4) of Section 306, but it would also be inconsistent with and in violation of the duty to make a full and frank disclosure of the case at all stages. Thus breach of the provisions contained in Clause (a) of Sub-section (4) of Section 306 is of a mandatory nature and not merely directory and, therefore, noncompliance of the same would render committal order illegal." 8. Keeping in mind the mandatory nature of the provisions of Section 306(4), we have no option but to hold that the committal order and the prosecution are rendered illegal. Normally, we would have remanded the matter, before the Committal Magistrate for following the procedure prescribed by law, but having regard to the subsequent developments, we find that it is not possible to cure the said defect in the prosecution' at this stage. As already noted, prosecution applied for sanction under Section 308 to prosecute Tipu Sultan for not complying with conditions of pardon, but the said application came to be rejected by this Court though liberty was given to the prosecution to prosecute Tipu Sultan. Thereafter, Tipu Sultan was tried by the Sessions Court and acquitted by an order dated August 16, 1994. In view of these subsequent developments, it will not be open for the prosecution to examine Tipu Sultan as a witness and, therefore, the conviction of the accused will have to be set aside. 9. Even on merits, we are of the opinion that the evidence on record falls short of proving the guilt of the accused beyond all reasonable doubt. On a careful scrutiny of the material produced by the prosecution, we find that the circumstantial evidence relied upon by the Sessions Court for conviction of the accused is not completing the chain so as to lead to conclusion that accused and no other could have been the assailants of deceased Dangappa. On a careful scrutiny of the material produced by the prosecution, we find that the circumstantial evidence relied upon by the Sessions Court for conviction of the accused is not completing the chain so as to lead to conclusion that accused and no other could have been the assailants of deceased Dangappa. In order to bring home the guilt of the accused, the prosecution has mainly relied upon the following circumstances: (1) that the deceased was enticed away from his house by the accused and thereafter his dead body was discovered in the Forest of Matojem two months after the disappearance; (2) that there was discovery of the knife at the instance of the accused; (3) that blood stained cloilies were recovered from the accused; (4) that accused No.2 hired a motorcycle for taking the deceased to the Forest of Matojems and (5) that there were cuts and injuries on the hands of the accused No.1, which, in the opinion of the doctor, were caused while stabbing the deceased. These are the main circumstances on which the prosecution is heavily relying for securing conviction under Section 302. 10. Adverting to the first circumstances that the accused enticed deceased Dangappa from his house the prosecution mainly placed reliance upon the evidence of P.W. 2 Laxmi, the sister of the deceased and P.W. 4 Bhirappa, the father of the deceased. P.W. 2 Laxmi in her statement says that the two accused were living in the same ward of Moti Dongor at Margao where the family of the deceased was staying; that both the accused used to come frequently during about one year before the incident, to her father's house to meet Dangappa; that the last time she saw her brother Dangappa was on the day subsequent to the Idd Festival (Friday), which was a Saturday. Laxmi then goes on to say that on the said Saturday at about 8.00 p.m. Dangappa and her father were having dinner when both the accused came to their door and called Dangappa; she came to the door and saw both the accused; Dangappa came out of the house and went to speak to the accused, then all three of them went on foot; she told her father that Shabbir and Hamid (accused Nos. 1 and 2) had come and that Dangappa had gone with them; her father told her to go to sleep; then she went to sleep. P.W.4 Bhirappa says in his evidence that Dangappa used to work as labourer in constructions; that both the accused arc residents of the same ward where he lives; accused NO.1 used to come to his house frequently to see Dangappa; he further says that one night before rainy season while he was having dinner at the house, somebody called from outside, his wife told their daughter Laxmi to go to the door and see who was calling, Laxmi went to the door and told that accused No.1 Shabbir and accused No.2 Hamid was calling Dangappa; Dangappa stood tip and went out of the house; Dangappa never returned to the house thereafter. We feel the fact that the deceased went with the accused from his house and that thereafter he was not seen at all and his dead body was discovered two months thereafter, by itself, is not a conclusive piece of circumstantial evidence to establish the guilt of the accused. In any case, we find that the prosecution has failed to establish this circumstance beyond reasonable doubt as there is a serious doubt about the version given by P.W. 2 Laxmi and P.W. 4 Bhirappa that the deceased was last seen in the company of the accused. P.W. 4 Bhirappa admitted in the cross-examination that though he lodged a missing report with the police, he did not mention in the said report that deceased was last seen in h is company of the accused before his disappearance. In his cross-examination, Bhirappa also admitted that before his statement was recorded by the police on May 14, 1991, he did not tell anybody that his son Dangappa had gone in the company of the accused. On perusal evidence, it is also seen that P.W.6 Somnath Gaude, who was posted as Head Constable at Margao Town Police Station at the relevant time and recorded the missing report, in his eye cross-examination admitted that Bhirappa only told him that his son had left his house at 8.30 p.m, by on March 1, 1991, but he did not give anyother pro details. The prosecution has not produced on record the missing report, thrown some light Oil real state of affairs. The prosecution has not produced on record the missing report, thrown some light Oil real state of affairs. In our opinion, it is improable that the father will not disclose to the police the names of the accused, who allegedly accompanied his son before his disappearance. Bhinippa's failure to mention the names of the accused to the police creates a doubt about the prosecution story that the deceased was enticed away from the house by the accused. The next circumstance of discovery of knife on which considerable reliance- was placed by the prosecution is also in our opinion insufficient to implicate the accused in the commission of the offence. Admittedly, no blood stains were found on the knife recovered at the behest of the accused In and, therefore, this circumstance also cannot help at the prosecution to establish the guilt of the accused. Similarly, the recovery of the blood stained clothes is also not helpful to the prosecution inasmuch as the Chemical Analyser's report is inconclusive. We are also unable to give any importance to the medical report of the injuries on the hands of the accused No.1. In this behalf, the prosecution has mainly relied upon the evidence of P.W. 10 Dr. A.N. Jeswal, who has deposed that the accused NO.1 was examined by him on March 3, 1991, i.e. on the next day, after the disappearance of Dangappa and he found that there were injuries on both the hands of the accused, which, in his opinion, are likely to be caused while giving knife blows to the deceased. The doctor Jeswal has testified that on March 3, 1991, the accused No.1 was bought to him by the police. We are unable to understand as to how the police came into picture on March 3, 1991 when admittedly the dead body was discovered on May 4, 1991 and the F.I.R. was lodged on May 8, 1991. It is, therefore, not safe to rely upon the evidence of Dr. Jeswal. 11. It may be mentioned that the prosecution has failed to establish that accused No.2 had hired a motorcycle from P.W. 7 for taking Dangappa to the Forest as P.W. 7 has merely stated that the accused No. 2 sometimes used to hire the motors-cycle was taken on hire by accused No.2. Jeswal. 11. It may be mentioned that the prosecution has failed to establish that accused No.2 had hired a motorcycle from P.W. 7 for taking Dangappa to the Forest as P.W. 7 has merely stated that the accused No. 2 sometimes used to hire the motors-cycle was taken on hire by accused No.2. thus, in our opinion, the prosecution has failed to establish any of the circumstantial evidence should not only be consistent with the guilt of the accused but should inconsistent with his innocence. Before the Court can act on circumstantial evidence, the evidence must exclude the guilt of the accused. Taking an overall view of the case, we find that the prosecution has failed to establish its case beyond reasonable doubt and, therefore, the accused are liable to be acquitted. 12. In the result, both the appeals succeed. The judgment and order dated December 30,1992 passed by the Sessions Case No. 13 of 1991 is quashed and set aside. The accused shall be set free. Appeals allowed. 1.A.I.R 1962 Guj. 283. 2.1976 Cri. L.J. 770. 3. 1986 Cri. LJ. 2104. 4. A.I.R. 1989 S.C. 598. 5. 1994 Current Crl. Reports (3) 636.