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2008 DIGILAW 2343 (ALL)

NOOR ALAM, ETC v. STATE OF U. P. AND OTHERS, ETC

2008-11-26

AMAR SARAN, R.K.RASTOGI

body2008
JUDGMENT Honble Amar Saran, J.—Aggrieved by the judgment and order dated 30.3.2007 passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Siddharth Nagar in ST No. 41 of 1999, the appellants before us have preferred the connected criminal appeals. 2. Criminal Appeal No. 2837 of 2007 has been filed by appellant Noor Alam, who has been convicted and sentenced to death and a fine of Rs. 10,000/- under Section 302/34, IPC. In case of default the appellant is to undergo six months additional rigorous imprisonment. The appellant Noor Alam was further convicted and sentenced to six years rigorous imprisonment and a fine of Rs. 5000/- under Sections 201/34, IPC and in case of default the appellant was to undergo three months additional rigorous imprisonment. A Criminal Reference No. 13 of 2007 was also sent by the learned Sessions Judge under Section 366 of the Code of Criminal Procedure for the confirmation of the sentence of death awarded to the appellant Noor Alam. The appellant Noor Alam is represented by Shri R.B. Sahai. 3. The appellant Jalaluddin in connected Criminal Appeal No. 2542 of 2007, who is represented by Shri P.N. Mishra, the appellant Sunil Kumar alias Babloo Pathak, in connected Criminal Appeal No. 2423 of 2007, who is represented by Shri V.C. Tiwari, and the appellant Kranti Kumar in connected Criminal Appeal No. 2837 of 2007, who is represented by Shri G.P. Dixit, have all been convicted and sentenced to life imprisonment and a fine of Rs. 10,000/- each under Section 302/34, IPC, and in case of default to six months additional rigorous imprisonment, and to six years rigorous imprisonment and a fine of Rs. 5000/- each under Section 201/34, IPC. On default they shall have to undergo additional 3 months rigorous imprisonment. 4. In a short compass the facts of this case were that on 25.11.1998 at 4.30 p.m. an FIR was lodged by one Sahdev, P.W. 1, the Chaukidar of village Kodra, police station Tetri Bazar, district Siddharth Nagar that on the same day in the afternoon he learnt from some villagers that near the Basauni culvert a headless dead body of a young man is lying and that the assailants have taken away the head. 5. 5. On the basis of this information, P.W. 9, S.O. of police station Tetri Bazar registered a case at case crime No. 520 of 1998, under Sections 302/201/34, IPC against unknown persons. After preparing the Nakal report and Nakal chik, he reached the spot along with force and got the inquest (Ext. Ka. 5) written out by P.W. 7 S.I. D.S. Yadav on his dictation. As the bloodstained pass-book of Gramin Bank, Chilhya was found in the pant of the deceased, which mentioned the name of Zabir Husain of village Phulwara, hence information was sent by R.T. set to SO, Siddharth Nagar to contact some family members in the house of Zabir Husain and to bring him immediately to the village Basauni culvert. On this information Sakir Husain, P.W. 6 arrived at Basauni culvert along with Pradeep Singh and after looking at the dead body, pass-book and clothes of the deceased, he identified the dead body to be of his brother Zabir Husain. After inquest, the dead body was sent for post-mortem. The post-mortem was conducted by Dr. R.S. Shukla, P.W. 8 at 3.30 p.m. on 26.11.1998 at District Hospital, Siddharthnagar on the headless dead body of the deceased. He found the following ante-mortem injuries : “(1) Penetrating wound margins sharp 3 cm x 1 cm on mid-abdomen, 7 cm below umbilicus 3 feet intestine. Peritoneum prolapsing. (2) Penetrating wound including 3 cm x 1 cm right iliac fossae. (3) 3 penetrating wounds margins sharp on right lower thoracic region penetrating to liver. (4) Penetrating injury by sharp edged weapon, on the right side front of lower part of chest 2 x 1 cm, penetrating to lung. (5) Incised wound 6 cm above root of neck all over neck, the head part of the body was absent. The duration of death was about 40-48 hour and the death was caused due to haemorrhage and shock." 6. A search was made for the head of the deceased near the place where the dead body was found, but it was traceless. 7. After that on 26.11.1998 itself, the statement of Sakir Husain was recorded by the investigating officer, who suspected the involvement of the appellant Noor Alam, who was a partner in the PCO, which the deceased Zabir Hussain and appellant Noor Alam had purchased from Rais Ahmad. 7. After that on 26.11.1998 itself, the statement of Sakir Husain was recorded by the investigating officer, who suspected the involvement of the appellant Noor Alam, who was a partner in the PCO, which the deceased Zabir Hussain and appellant Noor Alam had purchased from Rais Ahmad. A search was made for Noor Alam in Tetri Bazar where it was learnt that Noor Alam had just left for Sohas Road on a scooter at about 10.50 a.m. on the same day. The investigating officer was able to apprehend Noor Alam on the identification of Sakir Husain along with the appellant Jalaluddin and Kranti Kumar near the wooden bridge (Kaath Ka Pul). There the appellants are said to have confessed their guilt before the police and the witnesses and agreed to show the place where they had hidden the head of the deceased Zabir Husain. On the pointing out of the three appellants, at about 1.00 p.m., the head of the deceased was retrieved from the water below the culvert to the south of village Jagdishpur Raja by Noor Alam, which Sakir identified to be the head of his brother Zabir. Thereafter the inquest of the head (Ext. Ka 4) was conducted by SI R.K. Sharma on the dictation of P.W. 9, R.A.S. Yadav. 8. The site plans of the places where the dead body and head of the deceased were recovered has been prepared by the investigating officer P.W. 9., R.A.S. Yadav. On the pointing out of the accused two knives were recovered (Ext. Ka. 16) towards the south of the Basauni culvert. After that the apprehended accused were taken to the police station along with the recovered items, and knives and the recovered items were kept in the Malkhana. The fourth accused Sunil Kumar could not be traced out and he surrendered in Court on 5.12.1998 after initiation of proceedings under Sections 82 and 83 of the Code of Criminal Procedure against him. 9. The charge-sheet was prepared on 9.12.1998 against the four accused persons. On 8.1.1999 the recovered items along with the weapons, plain and bloodstained earth were sent for chemical examination to the Forensic Science Laboratory. 10. In support of its case the prosecution has examined as many as nine witnesses in this case. 9. The charge-sheet was prepared on 9.12.1998 against the four accused persons. On 8.1.1999 the recovered items along with the weapons, plain and bloodstained earth were sent for chemical examination to the Forensic Science Laboratory. 10. In support of its case the prosecution has examined as many as nine witnesses in this case. P.W. 1, Sahdev, the Chaukidar of village Kodra who lodged the report after the recovery of the unidentified dead body, P.W. 2, Babu Lal, who was examined for proving the discovery of the knives, P.W. 3, Padeep Singh, a witness of recovery of the head of the dead body from under the Basauni culvert, P.W. 4, Sohavat Ali, the witness of last seen, who is said to have last seen the deceased with the appellant Noor Alam. P.W. 5, Shabbir Husain is also a witness of last seen P.W. 6, Sakir Husain, who is the brother of the deceased is a witness of the recovery of the head of the deceased after the apprehension of the accused-appellants Noor Alam, Jalaluddin and Kranti Kumar P.W. 7 D.S. Yadav is the officer, who has conducted the inquest, P.W. 8, Dr. R.S. Shukla, who has conducted the post-mortem examination as described above. P.W. 9, R.A.S. Yadav, is the investigating officer and witness of recoveries and the investigation conducted by him as already described hereinabove. 11. P.W. 1, Sahadev is the Chaukidar of village Kodra, who has lodged the first information report. He has reiterated the versions mentioned in the FIR. 12. P.W. 2, Babu Lal, was a witness of the recovery memo (Ext. Ka 2). He has been examined to prove the recovery of the knives at the instance of the appellants who dug them out from a field in village Khajuria. One knife was dug out by Kranti Kumar and the other by Jalaluddin, which were said to be bloodstained as per the recovery memo. He further stated in his examination-in-chief that the investigating officer had dug out two knives from the field and that he was not prepared to identify the accused in Court. To a specific question by the Court also, he stated that he does not recognize the accused in whose presence the knives were recovered. He has further stated that when he reached the place, the investigating officer had already dug out the knives and placed them on the Medh of the field. To a specific question by the Court also, he stated that he does not recognize the accused in whose presence the knives were recovered. He has further stated that when he reached the place, the investigating officer had already dug out the knives and placed them on the Medh of the field. He also stated in response to a Court query that the appellant Sunil Pathak was not there. 13. P.W. 3, Pradeep Singh stated that on 25.11.1998 he was present at his house when the S.O. of police station Chhilhya called him to come to the Basauni culvert along with the brother of the deceased as the S.O. of police station Tetri required his presence. Thereafter, this witness proceeded with Sakir Husain, P.W. 6, the brother of the deceased on a motor-cycle to the Basauni culvert. The headless dead body was lying there. After seeing the clothes, pass-book and key etc. which were found on the dead body, Sakir started crying and said that the dead body was of his brother. Then they kept searching for the head of the dead body, but the same was traceless. Sakir said that he suspected Noor Alam of having committed the crime. After that they came to the PCO where Noor Alam was not present. Then they went to his house, where again they did not find him. They then proceeded to the petrol pump where they were told that three people were going towards Sohas on a scooter and Noor Alam was with them. After that they proceeded towards the Sohas culvert along with the police party. When they reached Sohas culvert, three persons started running away after abandoning their scooter. Then the police apprehended these three persons, who disclosed their names to be Noor Alam, Kranti and Jalaluddin. The three accused persons confessed to their guilt before the police and these witnesses. Thereafter they offered to get the head recovered. Then the witnesses along with the police party and three accused Noor Alam, Kranti and Jalaluddin reached jagdishpur Raja. When they reached the culvert to the south of the village, then the three accused entered into the water and started looking for the head. Noor Alam picked up the head and took it out. Then the witnesses along with the police party and three accused Noor Alam, Kranti and Jalaluddin reached jagdishpur Raja. When they reached the culvert to the south of the village, then the three accused entered into the water and started looking for the head. Noor Alam picked up the head and took it out. All the three appellants disclosed that it was the head of the deceased and they had committed the murder in the night of 24.4.1998 at 10.30 p.m., and hidden the head under the culvert. The investigating officer prepared the recovery memo of the head (Ext. Ka-3) in the presence of this witness and Sakir. He is also a witness of the inquest of the head (Ext. Ka-4). 14. P.W. 4, Sohavat Ali is the witness, who is said to have last seen the deceased with the appellant Noor Alam. He deposed that he had gone to Naugarh and as the deceased Zabir was the son of his Sala he had gone to his PCO for making a telephone call in the evening at about 8.00 p.m. on 24.11.1998. The deceased Zabir and the appellant Noor Alam were present there. After that Zabir and Noor Alam decided to go to Kesari for a spree at that place and they requested this witness to look after the PCO in the meanwhile. At that moment one boy arrived, whom he did not recognise, who took Noor Alam and Zabir on his scooter. After one and half hours Noor Alam returned along with two persons, whom he did not recognise. When this witness questioned Noor Alam as to where Zabir was, Noor Alam replied, that as his house fell near Kesri, he has gone home. After three days, he learnt that Zabir had been murdered. He denied falsely deposing against the accused Noor Alam. 15. P.W. 5 Sabir Husain has deposed that Mohammad Umar, father of the deceased Zabir Husain, was his uncle. Zabir Husain was running a PCO at Naugarh-Basi road at Khajuria. He had purchased this PCO for Rs. 70,000/- from Rais, who was a resident of Tetri Bazar. Zabir had taken the PCO in the partnership of his friend Noor Alam, who was a resident of Khajuria. He identified Noor Alam in Court. Zabir had paid Rs. 30,000/- for the PCO whilst Noor Alam had paid only Rs. 10,000/-. He had purchased this PCO for Rs. 70,000/- from Rais, who was a resident of Tetri Bazar. Zabir had taken the PCO in the partnership of his friend Noor Alam, who was a resident of Khajuria. He identified Noor Alam in Court. Zabir had paid Rs. 30,000/- for the PCO whilst Noor Alam had paid only Rs. 10,000/-. After the incident Sakir, younger brother of Zabir had come to his house. Sakir told him that there was a phone call at Pradeep’s residence from the PCO asking Pradeep to send Zabir’s younger brother along with Rs. 10,000/- to the PCO at Tetri Bazar because the bill of the PCO was to be paid. As there were no funds in the house, Sakir had gone empty handed to the PCO, but he did not meet Zabir there. Noor Alam and the appellant Bablu Pathak were sitting at the PCO. When Sakir questioned them about the whereabouts of Zabir, they replied that a friend of Zabir had come from Basi and Zabir had gone to see a film with this friend the previous night and thereafter he had gone to Basi. On that information Sakir came to his house and after meals, left for his home at about 1.00 p.m.. This witness had himself gone to the PCO where he met Bablu Pathak and Noor Alam, but on his enquiry they said that Zabir had gone to Basi during day time. On the date of incident at about 7.00 p.m., it was informed that on the Basauni culvert a headless corps had been found. From the khaki pant, the pass book and the key ring found on the headless dead body it was identified that the dead body was of Zabir. 16. P.W. 6, Sakir Husain, the brother of the deceased, had disclosed that his elder brother used to run a PCO in Khajuria Tetri bazar, which he had purchased from Rais Mohammad for Rs. 70,000/-. Rs. 40,000/- had already been paid, out of which Zabir had paid Rs. 30,000/- and Rs. 10,000/- only had been paid by Noor Alam, but the PCO had not been transferred to their names as the entire agreed amount had not been paid. When the issue of transfer arose, then Zabir had suggested to Noor Alam that he should take back his Rs. 30,000/- and Rs. 10,000/- only had been paid by Noor Alam, but the PCO had not been transferred to their names as the entire agreed amount had not been paid. When the issue of transfer arose, then Zabir had suggested to Noor Alam that he should take back his Rs. 10,000/- and that Zabir would get the PCO transferred in his name alone, otherwise he should also pay half of the amount. At the time of incident Sakir Husain was in his house when a telephone call was received by him on Pradeep’s telephone. He heard a soft saying that he was Zabir, Sakir’s brother and that Rs. 10,000/- were lying in the house and he would send Noor Alam and the amount should be handed over to him or he should himself come to pay the bill of the PCO. When he reached the PCO, then he saw that Noor Alam was sitting there. He enquired from him as to where Zabir was. Noor Alam replied that he had gone with a friend to Basi. When he enquired as to when Zabir would return, he was informed that Zabir would return by evening. Then he left for his elder uncle’s place in village Khajuria. When he questioned his elder uncle’s son Shabeer Hussain, about the whereabouts of his brother then Sabir replied that he disclosed that at about 2.00 p.m. after taking his meal, he had gone to the PCO, but had not returned since. Then this witness left Khajuria for his village Belwa. At Belwa he learnt that a wireless message has been received at police station Chilhya from Police Station Tetri Bazar, that S.O. Chilhya had contacted Pradeep Singh and told him that a dead body was lying at the Basauni culvert and if any member of Zabir’s family was present, then he should go there. Then this witness along with Pradeep, P.W. 3 left for Basauni culvert on his motor-cycle. They found a headless dead body there. Near the dead body clothes, some items and a key and pass book of Gramin Bank were lying, which belonged to his brother and helped to fix his identity. Then they came to the PCO along with the police, where they found the younger brother of Noor Alam sitting. On enquiry regarding the whereabouts of Noor Alam, it was stated that he was at home. Then they came to the PCO along with the police, where they found the younger brother of Noor Alam sitting. On enquiry regarding the whereabouts of Noor Alam, it was stated that he was at home. Then they proceeded to the home of Noor Alam, where he was not present. At the house of Noor Alam someone told the S.O. that Noor Alam had gone towards Belsadh from the side of Gowarhava. After that while they were going from the station side, they saw Noor Alam along with two others going towards Sohasa. When this witness pointed out Noor Alam to the S.O., then Noor Alam and the two other accompanying persons fell from the scooter and they were apprehended. When the investigating officer asked their names, they disclosed their names to be Noor Alam, Jalaluddin and Kranti Kumar. The appellants were identified by the witness in Court. They revealed that they had cut the neck of the deceased and put it under the Jagdishpur Raja culvert. The three appellant-accused entered the water and Noor Alam picked up the head of the deceased and waved it saying that they had kept the head of the deceased there. P.W. 6 Sakir Hussain was a witness of the recovery of the head (Ext. Ka-3), and he was also the witness of the inquest (Ext. Ka-4). 17. P.W. 7, SI D.S. Yadav, in-charge police outpost Naugarh, police station Tetri Bazar, conducted the inquest on the unknown body of the deceased in the presence of S.O. Rav Autar Yadav on his directions. In the opinion of the inquest witnesses the cause of death was due to cutting of the neck of the deceased with a sharp edged weapon. The inquest of the dead body was marked as (Ext. Ka-5). He also prepared photo Lash, form 31, letter for CMO, letter for District Hospital, Siddharth Nagar, letter for R.I. in his handwriting, which are marked as (Ext. Ka-6 to 10). 18. P.W. 8, Dr. R.S. Shukla, Medical Officer, District Hospital, Siddharth Nagar conducted the post-mortem examination in the district hospital at 3.30 p.m. on 26.11.1998. The injuries have been described above. 19. He also conducted the post-mortem examination of the head of the deceased Zabir on 26.11.1998. Ka-6 to 10). 18. P.W. 8, Dr. R.S. Shukla, Medical Officer, District Hospital, Siddharth Nagar conducted the post-mortem examination in the district hospital at 3.30 p.m. on 26.11.1998. The injuries have been described above. 19. He also conducted the post-mortem examination of the head of the deceased Zabir on 26.11.1998. at 4.30 p.m. The ante-mortem injuries on the head of the deceased were as follows : “Incised wound just below head and neck all over upper part of neck. Only head part is present, rest of the body absent. Upper vertebrae of the neck were cut." 20. The time of death was about 40-48 hours prior to the examination of the dead body. 21. P.W. 9, Ram Autar Singh Yadav, S.O. Tetri Bazar, the investigating officer commenced the investigation on 25.11.1998 after the report was lodged by Sahdev Singh, the Chaukidar of village Kodra and the case was registered at case crime No. 520 of 1998, under Section 302/201, IPC. The steps taken by him for investigation of the case have already been described in the earlier part of the judgment. 22. In their statements under Section 313 of the Code of Criminal Procedure the appellants belied the incident and stated that they have been falsely implicated and claim to be tried. 23. Appellant Noor Alam in his statement under Section 313, Cr.P.C. has stated that he had been falsely implicated in this case due to enmity. 24. No evidence was led in defence by the appellants. 25. The principal accused in this case is Noor Alam. We have heard Shri R.B. Sahai for this appellant at length. He has also taken us through the entire record and we also heard Shri P.N. Mishra, V.C. Tiwari and G.P. Dixit on behalf of the other appellants. 26. We have also heard Shri Neeraj Kant Verma, learned Additional Government Advocate, who is representing the State. 27. According to Shri Sahai this is a case of circumstantial evidence and the chain of circumstances are not so clinching and compelling so as to lead to the only inference of complicity of the appellant Noor Alam in this crime. No. value could be given to the joint confessional statement and joint recovery of the head by this appellant and other appellants Jalaluddin and Kranti Kumar. He has also drawn our attention to the statement of Dr. No. value could be given to the joint confessional statement and joint recovery of the head by this appellant and other appellants Jalaluddin and Kranti Kumar. He has also drawn our attention to the statement of Dr. R.S. Shukla, P.W. 8, who has admitted at one point in his cross-examination that there was no sign on the head as well as on the dead body that the same were lying in water, nor has he mentioned the presence of any slush etc. on the dead body or the head in the post-mortem reports. The motive for commission of the crime was not clear. Pradeep, P.W. 3 has not mentioned the fact of the earlier telephone call to the telephone at his place from the PCO for Sakir Husain, P.W. 6. Babulal, P.W. 2 the witness of the alleged recovery of the two knives by the appellants, has not supported the prosecution case relating to the recovery. 28. It is argued by Shri V.C.Tiwari, learned counsel for the appellant-Kranti Kumar, that there is no evidence of motive against the appellant-Kranti Kumar and his no earlier association with Noor Alam is established. No value could be given to the alleged recovery of one knife by the appellant- Kranti Kumar and another by the appellant- Jalaluddin after digging the ground from a field, as P.W. 2-Babulal the only non-police witness of the recovery of the knives, has not supported the prosecution case. Furthermore the knives contained disintegrated blood. As such there is no evidence for connecting these appellants with the crime. There is some confusion as to whether the head and the dead body were recovered on the same day or on different dates as P.W. 6, Sakir has stated in his cross-examination at one point that the head was recovered the next day. Learned counsel also questioned the value of joint recovery and joint disclosure statements made by the three appellants, Noor Alam, Kranti Kumar and Jalaluddin. 29. Learned counsel also questioned the value of joint recovery and joint disclosure statements made by the three appellants, Noor Alam, Kranti Kumar and Jalaluddin. 29. In addition to the aforesaid submissions, Shri P.N. Mishra, learned counsel for the appellant-Jalaluddin, has argued that P.W. 2, Babulal, the witness of recovery, has stated at one point that the investigating officer dug out the knives and subsequently stated that knives were lying on the Medh and the investigating officer had not dug out the knives and thus, he has not supported the prosecution case even though he has not been declared hostile.The joint recovery is unreliable as it does not contain the signatures of the accused and the omnibus disclosure statements by all the accused are inadequate for proving the prosecution case. 30. It is further suggested that P.W. 4, Sohavat Ali, the Phupha of the deceased, who is the only witness of last seeing the appellant and the deceased together has been examined by the police three days after the dead body was found. 31. On the other hand, it was argued by Shri Neeraj Kant Verma, learned Additional Government Advocate that there was sufficient evidence of motive as well as recovery for linking the appellant Noor Alam and other appellant with this crime and the chain of circumstances is complete for recording the conviction of the appellants. 32. The approach to appreciation of the evidence in cases of circumstantial evidence has been aptly enunciated in the case of Padala Verabira Reddy v. State of A.P., 1989 Supp (2) SCC 706, in paragraph 10, on pages 710-711, which we respectfully adopt. The principles laid down are as follows : “10. 32. The approach to appreciation of the evidence in cases of circumstantial evidence has been aptly enunciated in the case of Padala Verabira Reddy v. State of A.P., 1989 Supp (2) SCC 706, in paragraph 10, on pages 710-711, which we respectfully adopt. The principles laid down are as follows : “10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) 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 none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” It has however been made clear in the case of H.P. Administration v. Om Prakash, AIR 1972 SC 975 that the meaning of reasonable doubt in a case of circumstantial evidence should not be construed to mean any shadow of doubt which might appeal to a flickering, vacillating and sceptical mind. Paragraph 6 of H.P. Administration v. Om Prakash may be usefully cited in this connection : ......... It is not beyond the ken of experienced able and astute lawyers to raise doubts and uncertainties in respect of the prosecution evidence either during trial by cross-examination or by the marshalling of that evidence in the manner in which the emphasis is placed thereon. But what has to be borne in mind is that the penumbra of uncertainty in the evidence before a Court is generally due to the nature and quality of that evidence. It may be the witnesses are lying or where they are honest and truthful, they are not certain. It is therefore difficult to expect a scientific or mathematical exactitude while dealing with such evidence or arriving at a true conclusion. It may be the witnesses are lying or where they are honest and truthful, they are not certain. It is therefore difficult to expect a scientific or mathematical exactitude while dealing with such evidence or arriving at a true conclusion. Because of these difficulties corroboration is sought wherever possible and the maxim that the accused should be given the benefit of doubt becomes pivotal in the prosecution of offenders which in other words means that the prosecution must prove its case against an accused beyond reasonable doubt by a sufficiency of credible evidence. The benefit of doubt to which the accused is entitled is reasonable doubt—the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy—though unwittingly it may be—or is afraid of the logical consequences, if that benefit was not given or as one great judge said it is “not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticism.” It does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so, the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether. It is for this reason the phrase has been criticized. Lord Goddard CJ in Rex v. Kritz, (1950) 1 KB 82 at p. 90 said that when in explaining to the juries what the prosecution has to establish a judge begins to use the words “reasonable doubt” and to try to explain what is a reasonable doubt and what is not. He is much more likely to confuse the jury than if he tells them in plain language. “It is the duty of the prosecution to satisfy you of the prisoner’s guilt”. What in effect this approach amounts to is that the greatest possible care should be taken by the Court in convicting an accused who is presumed to be innocent till the contrary is clearly established which burden is always in the accusatory system, on the prosecution. “It is the duty of the prosecution to satisfy you of the prisoner’s guilt”. What in effect this approach amounts to is that the greatest possible care should be taken by the Court in convicting an accused who is presumed to be innocent till the contrary is clearly established which burden is always in the accusatory system, on the prosecution. The mere fact that there is only a remote possibility in favour of the accused is itself sufficient to establish the case beyond reasonable doubt. This then is the approach.” (Emphasis ours) 33. In our view, we need to examine the cases against the appellant Noor Alam and the other appellants separately. 34. So far as the appellant Noor Alam is concerned, P.W. 6, Sakir Husain, the brother of the deceased has clearly stated that Noor Alam and the deceased Zabir had purchased a PCO from Rais Mohammad, resident of Tetri Bazar for Rs. 70,000. Rs. 40,000/- has already been paid, out of which Zabir paid Rs. 30,000/- and Rs. 10,000/- had been paid by Noor Alam. The PCO had not been transferred in the names of Noor Alam and Zabir till then because Rs. 30,000/- still remained to be paid to Rais Mohammad. The deceased was telling Noor Alam that he should take back his Rs. 10,000/- and he would get the PCO transferred in his name, or else Noor Alam should also pay half of the amount for purchasing the PCO from Rais. These facts could easily have caused resentment in Noor Alam and the temptation to become the solitary owner of the PCO could have provided a good motive for committing the crime. P.W. 6, Sakir Husain has further stated that a phone call had been received around the time of incident at the telephone of Pradeep from the PCO, and he had answered the phone. The voice, which he heard, was soft. The speaker claimed to be his brother Zabir and instructed him to bring Rs. 10,000/- which was lying in the house and that either Noor Alam would go to get it or he should bring the amount himself as the bill of the PCO had to be paid. As the voice was soft he was not sure whether it was the voice of his brother Zabir or the voice of someone else which had raised the demand for the money. As the voice was soft he was not sure whether it was the voice of his brother Zabir or the voice of someone else which had raised the demand for the money. After that he did not find money in his house. He had gone from his house to the PCO in Tetri Bazar, but found Noor Alam only sitting there and Noor Alam had told him that the deceased had gone with a friend to Basi, whereupon he had gone to the house of his elder uncle at Khajuria and from there he had left for his home. After that an information was received in his village Belwa from the police station Chilhya that a dead body was lying at the Basauni culvert and he had gone there and found that the headless body of his brother lying there. It was obvious, therefore, that a false explanation had been given by Noor Alam that the deceased had gone to Basi with his friend and he would return in the evening. 35. Likewise, a false explanation had also been given to his cousin brother Sabir, P.W. 5, son of his elder uncle Murtaza Husain, who had visited the PCO and enquired about Zabir from Bablu Pathak and Noor Alam, who were sitting there and who had said that Zabir had gone to Basi, but his headless body was found on the same evening at the Basauni culvert. 36. The third circumstance was the evidence of P.W. 4, Sahavat Ali, who was the Phupha by relation of the deceased as the deceased was the son of his Sala. He had gone to the PCO on 24.11.1998 at about 8.00 p.m. as he had come from his village Khetwal to tehsil Naugarh for some mutation work. At that time Noor Alam and Zabir were there. They decided to go to roam around in Kesari. On the request of Zabir he stayed there to look after the PCO for sometime, then one unknown person had arrived who had taken Noor Alam and Zabir on his scooter. After one and half hours Noor Alam and two other persons, whom he did not identify, had returned. When he asked Noor Alam as to where Zabir was, he told him that as Zabir’s house is near to Kesari, he had proceeded to his house. After one and half hours Noor Alam and two other persons, whom he did not identify, had returned. When he asked Noor Alam as to where Zabir was, he told him that as Zabir’s house is near to Kesari, he had proceeded to his house. Then he had handed over the key of the PCO to Noor Alam and left for his home. 37. The evidence of this witness is quite natural and a false explanation was also given to this witness about the deceased going to Kesari and then proceeding to his home, which fact was incorrect. 38. To the criticism of his evidence as to why he had narrated about the incident three days after the dead body was recovered and why he had approached the police so late, it has rightly been explained by the learned Additional Government Advocate that as he was a resident of Khetwal Tewari and not of Naugarh or Tetri Bazar, the delay is understandable as he may have had no information immediately after the commission of the crime and recovery of the dead body. There was no abnormality if this witness came after three days to give information of last seeing the deceased and the appellant together on the date of incident and we find no ground to disbelieve the testimony of this witness. 39. After the dead body was found and Sakir Husain, the brother of the deceased had expressed a suspicion that Noor Alam, his brother’s partner in the PCO could have been involved in this crime, the investigating officer, P.W. 9, R.A.S. Yadav, P.W. 3, Pradeep and this witness P.W. 6, Sakir, had gone to the PCO where they had not found Noor Alam and were directed to his home where again Noor Alam was missing. Then they proceeded to the petrol pump where someone disclosed that three persons were going towards Sohran on a scooter and Noor Alam was with them. Then the police also proceeded towards the direction of Sohran pul where three persons started running after leaving the scooter behind. Then the police apprehended the three persons, who were Noor Alam, Jalaluddin and Kranti Kumar. Absconding from the PCO and trying to run away from the place when the police and this witness and Pradeep caught them at the Sohran Pul was the fourth circumstance for connecting the appellant Noor Alam with this crime. 40. Then the police apprehended the three persons, who were Noor Alam, Jalaluddin and Kranti Kumar. Absconding from the PCO and trying to run away from the place when the police and this witness and Pradeep caught them at the Sohran Pul was the fourth circumstance for connecting the appellant Noor Alam with this crime. 40. The main circumstance, however, for connecting the appellant Noor Alam with the crime, was that after the apprehension of the appellant-Noor Alam along with appellants Jalaluddin and Kranti, he confessed to his guilt and agreed to get the missing head of the deceased recovered from under the Jagdishpur Raja culvert. Then all three persons had entered into the water and it was the appellant Noor Alam, who had picked up and retrieved the head and handed it over to the police, whereupon inquest and post-mortem was conducted on it. 41. So far as appellant-Noor Alam is concerned, we feel the fourth circumstance and especially the last circumstance of his getting the head of the deceased recovered from under the Jagdishpur Raja Pul is sufficient for establishing the complicity of the appellant in the crime. In Mohd. Abdul Hafeez v. State of Andhra Pradesh, (1983) 1 SCC 143 , importance was not given to the joint statement of the appellant along with two other accused, whereby they led the police to the shop of the goldsmith-cum-jeweller from whom the ring that they had sold to him, was recovered. In the present case although it was alleged that all the three appellants led the police for recovering the amputated head from under the Jagdishpur Raja culvert, but it is made clear that it was the appellant Noor Alam who retrieved the head from under the water, which atleast establishes his complicity in the offence, as the police did not have any information that the head was lying hidden under the water. In an old Full Bench decision in the case of Emperor v. Misri, 1909 ILR (XXXI) 592, where the accused had got recovered certain ornaments of the deceased on an inducement being given while in police custody, that nothing would happen to her if she got the ornaments recovered, the Court held that whatever limitation would be placed on the admissibility of the evidence in view of the fetters contained in Sections 24 to 27 of the Evidence Act, the evidence that she went to a particular place and got the ornaments recovered, was relevant to the conduct of the accused and was admissible under Section 8 or other preceding sections of the Indian Evidence Act. 42. A similar question arose in Ramkishan v. Bombay State, AIR 1955 SC 104 , that where certain properties had been recovered on the pointing out by the accused, but the investigating officer had failed to record and prove the statements of the accused, whether the evidence relating to the recoveries ought to have been excluded from consideration in view of Section 27 of the Evidence Act. The Court opined that even independent of the provisions of Section 27 of the Evidence Act, it would be possible to take into account the conduct of the accused, and thus the Apex Court observed in paragraph 23 : “What was stated by the Investigating Officer, Hujur Ahmad Khan in the present case was that certain information was supplied to him by the accused 1 in consequence of which he took certain steps. He did not seek to prove that information or any part thereof in the evidence which he gave before the Court. Even when he said that Baliram dug out the tin box from the mud floor of a house at the instance of the accused 1 he did not seek to prove what that information was. The operation of Section 27 was therefore not attracted and ‘prima facie’ there was nothing to prevent that evidence being admitted against the accused 1.” 43. Some doubt is sought to be made about recovery of the head when it was lying in water, because Dr. The operation of Section 27 was therefore not attracted and ‘prima facie’ there was nothing to prevent that evidence being admitted against the accused 1.” 43. Some doubt is sought to be made about recovery of the head when it was lying in water, because Dr. R.S. Shukla, who had conducted the post-mortem examination did not find any slush and mud on the head and he has stated in his cross-examination on 1.2.2003 that he could not find any sign that the dead body and head were lying in the water. As to whether the body and head had been lying in the water, is a matter which is unrelated to the cause of death. No note may have been made with regard to the same by the doctor in his report. In any case, after five years when he was examined in Court, he could not have recalled the condition of the head, as to whether slush or mud was present on it or not. 44. Intrinsically also we find little reason why a false story of the head being found under the Jagdishpur Raja bridge by the appellant Noor Alam along with the other two accused would have been invented, if the head had actually been discovered at some other place. 45. We also do not give much importance to the discrepancy that at one point P.W. 6 Sakir Husain has stated that the head was recovered the second day after the recovery of the dead body as he has later corrected himself in paragraph 10 of his cross-examination and has clarified that the head and dead body were recovered on the same day. 46. In any case even the head was discovered the next day, if it was retrieved from the water under the bridge by the appellant Noor Alam, it would be a important circumstance for establishing his complicity in the offence, and the day of recovery of the head loses any importance. 47. So far as the cases of the appellants-Jalaluddin and Kranti Kumar are concerned, we think that the learned counsel are right in contending that there is no evidence of earlier association of these appellants with appellant-Noor Alam. 47. So far as the cases of the appellants-Jalaluddin and Kranti Kumar are concerned, we think that the learned counsel are right in contending that there is no evidence of earlier association of these appellants with appellant-Noor Alam. It is noteworthy that according to the witness of last seen, P.W. 4, Sohavat Ali, Phupha, by relation, of the deceased Zabir, in front of whom the deceased had left with Noor Alam and another unknown person on a scooter and thereafter when Noor Alam had returned to the PCO along with two other persons, he gave a false explanation that the deceased Zabir had gone from Kesari to his house. These two other persons, have not been identified to be the appellants Jalaluddin and Kranti Kumar by Sohavat Ali. 48. Therefore, the mere two circumstances that at the time when the party consisting of the police of police station Tetri Bazar, S.O. R.A.S. Yadav, Pradeep Singh, P.W. 3 and Sakir, P.W. 6 caught up Noor Alam, these two appellants were also present there and started running away after dropping the scooter and at the time when the head was retrieved from the water by the appellant Noor Alam, these two appellants were present, and immediately after their apprehension by the police party they allegedly made a joint confessional statement, which is hit by Section 27 of the Evidence Act, are not sufficient to prove the complicity of these two appellants also in the crime, keeping in mind the fact that this case is based on circumstantial evidence and there is no evidence of motive etc. against these accused-appellants. The head was also not picked up by these appellants and only a joint recovery and joint confessional statements by these appellants in the presence of the police are alleged which in our opinion are not sufficient for connecting these appellants with the crime. 49. So far as the appellant-Sunil @ Babaloo Pathak is concerned, there appears to be a solitary circumstance, viz. the evidence of Sabir Husain, P.W. 5, who stated that when Sakir, P.W. 6 had gone to the PCO of Zabir and Noor Alam after receiving information that Zabir required Rs. 49. So far as the appellant-Sunil @ Babaloo Pathak is concerned, there appears to be a solitary circumstance, viz. the evidence of Sabir Husain, P.W. 5, who stated that when Sakir, P.W. 6 had gone to the PCO of Zabir and Noor Alam after receiving information that Zabir required Rs. 10,000/- Noor Alam and Bablu Pathak @ Sunil were present at the PCO at that time and when he asked them as to where Zabir was, they disclosed that one friend of Zabir had come the previous night and Zabir had gone to see a film with him and thereafter they had gone to Basi. 50. Significantly, this evidence is of hearsay nature because P.W. 6, Sakir Husain himself did not mention that the appellant Sunil @ Babalu Pathak was present with Noor Alam when he went to meet his brother Zabir after receiving the phone call from the PCO. Therefore, this is a case of virtually no evidence against this appellant-Sunil. 51. In this view of the matter, we are of the opinion that the prosecution has succeeded in establishing the guilt of Noor Alam only for the offences under Section 302/34 and 201/34, IPC. But so far as appellants Jalaluddin, Kranti Kumar and Sunil Kumar @ Babaloo Pathak are concerned, we think that the circumstances are not sufficient for confirming the findings of the trial Court convicting them and consequently they are acquitted of the charges levelled against them. 52. However, so far as the appellant-Noor Alam is concerned, as this is a case of circumstantial evidence only in which we are acquitting the other three co-accused, we think it would not be proper to impose a sentence of death as it cannot be said that the other option of awarding the lesser sentence of imprisonment for life is unquestionably foreclosed. We, therefore, substitute the sentence of imprisonment for life in place of sentence of death, but uphold the fine imposed by the trial Court. 53. The appeal is partly allowed as above. The criminal reference preferred by the learned Sessions Judge for confirming the sentence of death is rejected. 54. Office is directed to send a copy of this order to the Chief Judicial Magistrate, Siddharth Nagar for information and necessary compliance. ————