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2007 DIGILAW 1995 (RAJ)

Taju Khan v. State of Rajasthan

2007-10-11

R.S.CHAUHAN, SHIV KUMAR SHARMA

body2007
Honble CHAUHAN, J.–Since both these appeals challenge the judgment dated 7.8.2003 passed by the Additional Sessions Judge, Fast Track, Laxmangarh, District Alwar, these appeals are being decided by this common judgment. (2). The discovery of the dead body of Sarfudeen, the alleged recovery of few articles from the appellants, their conviction for offence under Section 302/34 and 120-B of Indian penal Code (for short, `IPC) forms the background of this case. (3). For the offence under Section 302/34 IPC, the appellants have been sentenced to life imprisonment and have been imposed with a fine of Rs. 500/- each and in default to further undergo six months of rigorous imprisonment. For offence under Section 120-B IPC, they have been sentenced to ten years of rigorous imprisonment and have been imposed with a fine of Rs. 500/- each and in default to further undergo six months of rigorous imprisonment. (4). According to the prosecution, on 7.5.2002 at 10:30 AM, the Circle Officer, Laxmangarh gave a telephonic information to the Station House Officer (for short, `SHO), Laxmangarh informing him that in the jungle of village Kajota, a dead body is lying. He directed the SHO to reach the spot. On this information, SHO, Ramesh Singh Tanwar (PW.18), alongwith other police personnels, reached the jungle. At the site, a written report (Ex.P/6) was submitted by Sharif Khan to the police, wherein he claimed that "on 5.5.2002 in between 9:00-10:00 AM his brother, Sarfudeen, left for Alwar. Yesterday on 6.5.2002 around 7:00 PM one Mr. Sunil S/o Banwari, resident of Kajota, had seen his brother in Baran coming towards the village on foot. On 7.5.2002 in the morning at about 9:00 AM, Syaboo S/o Badlu came to his house and informed him that a dead body is lying in his field." On the basis of this report, "Mrig" FIR No. 5/2002 was registered under Section 174 of the Criminal Procedure Code (for short, `Cr.P.C.). Subsequently, after the post-mortem of the dead body, a formal FIR, FIR No. 112/02 was chalked for offence under Section 147, 302 and 120-B IPC. After completing the investigation, the police filed a charge-sheet against the appellants for offences under Section 302 and 120-B IPC. In order to prove its case, the prosecution examined twenty witnesses and submitted forty documents. Although, the statement of the appellants were recorded under Section 313 Cr.P.C., but they did not produce any witness in defence. After completing the investigation, the police filed a charge-sheet against the appellants for offences under Section 302 and 120-B IPC. In order to prove its case, the prosecution examined twenty witnesses and submitted forty documents. Although, the statement of the appellants were recorded under Section 313 Cr.P.C., but they did not produce any witness in defence. After going through the oral and documentary evidence, the appellants were convicted and sentenced as aforementioned. Hence, these appeals before this Court. (5). When the first appeal was taken up for hearing, it was noticed by this Court that Aashik Illahai @ Happaji @ Mullaji, a co-accused, who was also convicted and sentenced as the appellants, Taju Khan, Huru and Kishori, had not filed any appeal. Therefore, the Superintendent, Central Jail, Bharatpur was directed to inform this Court whether a criminal appeal had been filed by Aashik Illahai @ Happaji @ Mullaji through the jail or not. Subsequently, the second appeal was received in this Court. Vide order dated 9.10.2007, Mr. K.A. Khan, who was already representing the three appellants in D.B. Criminal Appeal No. 1270/03, was appointed as an amicus curiae on behalf of Aashik Illahai @ Happaji @ Mullaji. (6). Mr. K.A. Khan, the learned counsel for the appellants and the learned amicus curiae, has raised the following contentions before this Court: firstly, the case is based entirely on circumstantial evidence. But, the chain of circumstances is incomplete. The circumstances do not unerringly point towards the guilt of the appellants. Secondly, the entire case rests on the testimony of Taiyab (PW. 4), who has been produced by the prosecution to prove the fact of ``last seen. However, Mr. Taiyab is an unreliable witness. Therefore, the conviction cannot be based on his testimony. Thirdly, the other witnesses namely Mr. Sahab Din (PW. 10), Mr. Ajamat (PW. 12), Mr. Naseeb (PW. 13) and Mr. Nuroo (PW. 14) are all related witnesses. Therefore, their evidence needs to be accepted with due caution. Fourthly, although the prosecution has claimed through Mr. Sahab Din (PW. 10), Mr. Ajamat (PW.12), Mr. Naseeb (PW. 13) and Mr. Nuroo (PW. 14) that Aashik Illahi, otherwise also known as Mullaji had made an extra judicial confession before these witnesses, but, the same cannot be accepted. Lastly, the recoveries have not been proven by independent witnesses. Therefore, the recoveries do not connect the appellants to the alleged crime. (7). 10), Mr. Ajamat (PW.12), Mr. Naseeb (PW. 13) and Mr. Nuroo (PW. 14) that Aashik Illahi, otherwise also known as Mullaji had made an extra judicial confession before these witnesses, but, the same cannot be accepted. Lastly, the recoveries have not been proven by independent witnesses. Therefore, the recoveries do not connect the appellants to the alleged crime. (7). On the other hand, Mr. Suresh Dhanwal for Mr. Praveen Balwada, for the complainant, and Mr. B.N. Sandu, the learned Public Prosecutor for the State, have argued that Mr. Taiyab (PW. 4) is a reliable witness as he has clearly stated in his testimony that the deceased was last seen in the company of the appellants. Moreover, the recovery connects the appellants to the alleged crime and lastly all the circumstances narrated by the prosecution unerringly point to the guilt of the appellants. (8). We have heard the learned counsels for the parties, have perused the impugned judgment and have examined the record. (9). The principle for convicting a person in case of circumstantial evidence, by now, is well-settled. In the case of Trimukh Maroti Kiran vs. State of Maharasthra, (2006) 10 SCC 681 , the Honble Supreme Court stated the principle with regard to circumstantial evidence as under:- The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. (10). Moreover, in the case of Ramreddy Rajesh Khanna Reddy vs. State of A.P., (2006) 10 SCC 172 , the Apex Court observed that "To base a conviction on circumstantial evidence prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. Suspicion, however grave, cannot be a substitute for a proof and the courts should take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence." Therefore, while assessing the evidence, in the present case, the above principles need to be borne in mind. (11). Undoubtedly, the present case is based on circumstantial evidence. Mr. Taiyab (PW. 4) is the star witness of the prosecution. In his examination-in-chief, he tells us that on 9o clock at night, he was watering his field, which is adjacent to the field of appellant No. 1, Taju Khan. He further tells us that he had seen seven people, namely Bhuru, Kishori, Taju, MullaJi, Jasmal, Islam and Sarfoo. According to him, he went to these seven persons to share "Hukka". After half of hour, he came back to his field. About midnight, he heard the scream from the house of Taju and radio was also playing at that time; the scream was that of Sarfudeen. According to the witness, he went to the Tajus house, where he saw Huru and Kishori standing outside the door. He asked them "what was going on?". They replied, "nothing is going on, only the radio is playing." He came back to his field and started watering the field again. At dawn, there was a power-cut and therefore he went to sleep. Next day, around 12o clock in the afternoon he discovered that Sarfudeen had been killed. In his examination-in-chief he further claimed that at the time of burial, he told the sarpanch and others that he had seen the deceased with Taju. But, in his cross-examination, confronted with omissions in his statement under Section 161 Cr.P.C., he claims that although he had narrated the details of the night, the same have not been recorded by the police. He further admitted that at the burial, he did not speak to Sharif, the complainant. Interestingly, his statement was recorded by the police almost four days after the incident. (12). Despite the fact that Taiyab (PW. 4) claims to be a witness of last seen, neither at the burial nor sometime thereafter does he reveal the fact that he had seen the deceased in the company of the appellants. According to Sharif (PW. 3), Taiyab (PW. 4) had told him at the burial about the fact of the last seen. Despite the fact that Taiyab (PW. 4) claims to be a witness of last seen, neither at the burial nor sometime thereafter does he reveal the fact that he had seen the deceased in the company of the appellants. According to Sharif (PW. 3), Taiyab (PW. 4) had told him at the burial about the fact of the last seen. Clearly there is a contradiction between testimony of Taiyab (PW. 4) and that of Sharif (PW. 3). Moreover, Taiyab (PW. 4) does not explain about his studied silence of four days. A witness who claims to have known the deceased, who had seen the deceased alongwith the appellants, who has attended the burial, surprisingly the witness does not reveal the factum of "last seen" for four long days. Such inordinate delay creates a doubt about the veracity and creditworthiness of the witness. His trustworthiness is further shattered by the fact that although in his examination-in-chief, he claims that a light bulb was lit when he saw seven persons alongwith the deceased, but in his cross-examination, he admits that there was no electric connection at the well. Further more, he claims that a radio was playing at the dead of the night around 12o clock at midnight. In a village, it is unlikely that a radio would be playing at midnight. Moreover, no radio has been recovered from Tajus house by the police. Because of the inherent weakness in the testimony of Taiyab (PW. 4), it would be unwise to convict the appellants on such a testimony. (13). Of course, it is a settled principle of criminal jurisprudence that the testimony of the interested witness cannot be thrown out in toto. But, the testimony of interested witness should be accepted with caution and after due corroboration. In the present case, Mr. Sahab Din (PW. 10), Mr. Ajamat (PW. 12), Mr. Naseeb (PW. 13) and Mr. Nuroo (PW. 14) claimed that Aashik Illahai @ Happaji @ Mullaji made an extra-judicial confession wherein he claimed that he alongwith Taju, Kishori, Huru, Jasmal, Ismal have killed Sarfudeen because they wanted to rob him of the money which he was carrying. But, all these witnesses are related to the deceased. Moreover, none of these witnesses tell us the exact words used by Aashik Illahai @ Happaji @ Mullaji. But, all these witnesses are related to the deceased. Moreover, none of these witnesses tell us the exact words used by Aashik Illahai @ Happaji @ Mullaji. Before an extra judicial confession can be accepted, it must pass through three tests: firstly, that an extra-judicial confession would be made to a person in whom the accused reposes inherent faith and trust. Secondly, it must be voluntary in nature. Thirdly, it should not be result of coercion or entricement etc. In the present case, there is no reason for Aashik Illahai @ Happaji @ Mullaji to make an extra-judicial confession to the persons who are related to the deceased. There is no evidence to show that such an extra-judicial confession was made voluntarily by Aashik Illahai @ Happaji @ Mullaji. Lastly, such an extra-judicial confession although claimed to have been made in front of the villagers, no independent has been produced to prove the said extra-judicial confession. Therefore, the extra-judicial confession cannot be relied upon to convict the appellants. (14). The recoveries allegedly made from the appellants have not been supported by the independent witnesses. Moreover, the FSL report does not prove any linkage between the appellants and the alleged recoveries. Therefore, the recoveries are irrelevant as the recoveries do not connect the appellants to the alleged crime. (15). It is also settled principle of criminal jurisprudence that prosecution must prove its case through cogent evidence. In the case of circumstantial evidence, each link of the chain of the circumstances must unerringly point to the guilt of the accused persons. However, in the present case, there are gaping holes in the case of the prosecution. Therefore, the prosecution has not been able to establish its case. No matter how strong the suspicion may be, conviction cannot be based on suspicion. A conviction has to be based on cogent evidence. In the present case, cogent evidence is conspicuously missing. (16). For these reasons, we allow the appeals and set aside the impugned judgment dated August 7 2003 of the learned Addl. Sessions Judge Fast Track, Laxmangarh, District Alwar. We acquit the appellants of the charges under Section 302/34 of the IPC. The appellants Taju Khan, Huru, Kishori and Aashik Illahai, who are in jail, shall be set at liberty forthwith, if they are not required in any other case.