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2010 DIGILAW 926 (ALL)

SALEEM v. STATE OF U. P.

2010-03-19

A.K.ROOPANWAL, VINEET SARAN

body2010
JUDGMENT Hon’ble Vineet Saran, J.—This is an appeal filed against the judgment and order dated 9.5.2005 of the trial Court whereby the appellants Saleem, Shaukeen (both sons of Mauji), Irfan (son of Sher Mohd.) and Haroon (son of Allah Banda) have been convicted under Sections 302/34, I.P.C. and sentenced to imprisonment for life with a fine of Rs. 5,000/- each and in case of default of payment of fine, to further undergo one year imprisonment. The said appellants have further been convicted under Section 201, I.P.C. and sentenced to five years rigorous imprisonment with a fine of Rs. 3,000/- each and in case of default of payment of fine, to further undergo six months imprisonment. All the sentences have been made to run concurrently. 2. In brief, the case of the prosecution is that Shaukeen, aged about 16 years, son of Liyakat (complainant) had, on 28.8.1998 at about 8.30 p.m., left the house for easing himself but did not return back thereafter. When his whereabouts could not be traced out, then on 31.8.1998 the complainant Liyakat reported to the police regarding disappearance of Shaukeen alongwith his photographs. Thereafter in the morning of 2.9.1998 Khursheed and Faiz Mohammad (examined as P.W. 2 and P.W. 3 respectively) informed the complainant that they had last seen Shaukeen in the company of the accused-appellants on 28.8.1998 at about 9.30 p.m. and that they had heard one of the appellants asking Shaukeen to come alongwith them to the well of Munshi where they would sit and chat and that thereafter the appellants and Shaukeen left towards the well. In his complaint the complainant Liyakat also stated that about six months back the appellants had a fight with the complainant over some issue because of which there was enmity and when the complainant informed of the incident as narrated by Khursheed and Faiz Mohammad to his family members and other villagers, several persons of the village gathered and all the four accused-appellants were produced before the Panchayat, where all the accused-appellants accepted that because the family members of the complainant had beaten them earlier, to take revenge, they started being friendly with Shaukeen son of Liyakat and that on 28.8.1998 they took Shaukeen for a stroll and then about 10.30 p.m. throttled him to death and threw him in the well. It is stated that thereafter all the four accused-appellants along with full Panchayat went to the place where Shaukeen was murdered, which was about ten yards from the well. On peeping in the well they saw the decomposed body of Shaukeen floating in the well. On seeing this, the persons present got excited and caught hold of all the four accused. However, two of the accused-appellants, namely, Irfan and Haroon managed to escape and the other two accused appellants Saleen and Shaukeen both sons of Mauji were taken to the police station where a first information report was lodged with aforesaid facts at 12.05 p.m. on 2.9.1998 which was registered under Sections 302 and 201, I.P.C. The police thereafter visited the spot and recovered the dead body of Shaukeen from the well, whereafter the Panchnama was prepared and the dead body was sent for post mortem. After investigation, a charge sheet was submitted against all the four accused. Since the accused pleaded not guilty, trial was held in which they have been all convicted and sentenced as mentioned above. Challenging the said judgment of the trial Court, this appeal has been filed. 3. We have heard Sri N.I.Jafri, learned counsel for the appellants and Sri R.K.Singh, learned A.G.A. appearing for the State and have perused the record. 4. The appellants have been convicted primarily on the basis of the extra judicial confession made by them before the Panchayat of the village held on 2.9.1998 and also on the basis of the evidence of the decased Shaukeen having been last seen in the company of the appellants. It has been submitted that the extra judicial confession made before the Members of the Panchayat of the village is very doubtful and that the evidence of the deceased having been last seen in the company of the accused-appellants is wholly unreliable and has various contradictions. 5. It is submitted that there is no independent evidence adduced by the prosecution to show that any Panchayat was held on 2.9.1998 in which the accused-appellants are said to have appeared and confessed their crime. On the other hand, the defence produced Almuddin as D.W.1 who is a member of the Panchayat of the village who has categorically stated that no such Panchayat was held in which the accused-appellants had appeared nor they had ever made any confession regarding the crime having been committed by them. On the other hand, the defence produced Almuddin as D.W.1 who is a member of the Panchayat of the village who has categorically stated that no such Panchayat was held in which the accused-appellants had appeared nor they had ever made any confession regarding the crime having been committed by them. It has further been submitted that in the statement of the accused persons recorded under Section 313, Cr.P.C. no question regarding confession of the accused-appellants having been made before Panchayat, was put to them and it has been thus contended that if no such suggestion was put to the accused, the same could not have been made basis for their conviction. The Apex Court in the case of Harijan Megha Jesha v. State of Gujarat, AIR 1979 SC 1563 has held that if any incriminating circumstance appearing in evidence has not been put to the accused in his statement under Section 342 (now 313) Cr.P.C., the prosecution cannot be permitted to rely on such circumstance in order to convict the accused. This proposition of law is well settled by the Apex Court in several other cases also. By such provision, a duty is cast on the Court that the incriminating circumstances are put to the accused and his response solicited so that the accused gets an opportunity to offer his explanation for such incriminating material appearing against him. 6. In the present case, neither any independent evidence had been produced by the prosecution to prove that any such Panchayat was held in which the accused-appellants had made any confession nor any suggestion of the accused having made any such confession before the Panchayat was put to them and as such, in our view, the conviction of the appellants on this ground cannot be sustained in the eyes of law. It is noteworthy that although several persons have been named in the first information report as members of the Panchayat who are said to have been present in the Panchayat but none of the members of the Panchayat have been produced by the prosecution and the only member of Panchayat who has been produced as a witness (D.W.1) was by the defence who has categorically denied the story of any Panchayat having been held on the said date and for such purpose. 7. 7. With regard to the evidence of the deceased having been last seen in the company of the accused-appellants, from the record it is evident that the prosecution has not been able to prove the same beyond doubt. The evidence of last seen is primarily based on the statements of Khursheed P.W.2, Faij Mohammad P.W.3 and Zila P.W.5. Admittedly Khursheed and Faij Mohammad are closely related to the deceased. As per the prosecution case, although they had seen the deceased in the company of the accused-appellants in the night of 28.8.1998 but could not inform Liyakat of the same till 2.9.1998 as in the morning of 29.8.1998 they both had left for Delhi from where they are said to have returned only on 2.9.1998. P.W. 5 Zila in his cross examination has categorically stated that he had also seen the deceased in the company of the accused-appellants in the night of 28.8.1998 and had informed Liyakat of the same on the very next day i.e. 29.8.1998. If that was so, then it is not understood as to why the names of the accused persons were not mentioned in the report lodged by Liyakat on 31.8.1998 regarding disappearance of Shaukeen. Further, in his cross examination P.W. 1 Liyakat stated that he had lodged the report regarding disappearance of Shaukeen on 31.8.1998 on the asking of Khursheed P.W.2 and other persons. If that be so, then it is also not understood as to why Khursheed had not informed the complainant Liyakat of his son Shaukeen having been seen in the company of the accused-appellants and why they were not named in the report dated 31.8.1998. There is further contradiction in such story of the prosecution as on the one hand it is stated that the report of disappearance lodged on 31.8.1998 was lodged on the asking of Khursheed P.W.2 whereas on the other hand it has been stated that Khursheed had left for Delhi in the morning of 29.8.1998 and returned on 2.9.1998 when he informed the complainant Liyakat of having seen Shaukeen with the accused-appellants in the night of 28.8.1998. In his statement P.W. 3 Faij Mohammad has categorically stated that he left for Delhi on 29.9.1998 and returned back to his village only in the evening of 2.9.1998 at about 7.00 p.m. The first information report is said to have been lodged on 2.9.1998 at 12.05 p.m. In his evidence P.W. 3 Faij Mohammad has also stated that the Panchayat (which is said to be one of the basis for lodging the first information report) was held on the next day i.e. 3.9.1998 although from the record it is clear that the first information report had already been lodged a day earlier in which the holding of Panchayat has been mentioned. As such there are material contradictions in the statements of Khursheed P.W.2, Faij Mohammad P.W.3 and Zila P.W.5 who all claim to have last seen the deceased in the company of the accused-appellants in the night of 28.8.1998. 8. The case being of circumstantial evidence, the chain of events have to be properly knotted and should be in continuity. In the present case, there are numerous contradictions and missing links in the prosecution story. In the given circumstances, in our opinion, the chain of events, as set out by the prosecution, is not complete and it is not a case where the prosecution can be said to have proved the involvement of the accused appellants beyond all reasonable doubts. As such the benefit of doubt should be given to the accused appellants. 9. Not only this, the submission of the learned counsel for the accused-appellants that the Panchnama was prepared before the lodging of the first information report appears to be correct. The case of the defence is that on having received information of a dead body lying in the well, the police had gone there prior to the lodging of the first information report and for that reason in the Panchnama there is no mention of crime number or reference to the chick report and it has only been mentioned that some unidentified persons killed the deceased. The submission that if the first information report had been lodged before the Panchnama was prepared, the names of the accused-appellants would have been mentioned in the Panchnama raise some doubt regarding the fairness of the investigation. The submission that if the first information report had been lodged before the Panchnama was prepared, the names of the accused-appellants would have been mentioned in the Panchnama raise some doubt regarding the fairness of the investigation. We have also noticed from the record that there is clear over-writing of date in the ‘challan-nash’ which also creates a reasonable doubt that there could be manipulations by the police during the investigation. 10. Considering the aforesaid facts and the totality of the circumstances of this case, in our view, the conviction of the appellants is not based on cogent grounds and that the case against the accused-appellants cannot be said to have been proved beyond all reasonable doubt on the basis of which the appellants could be convicted. 11. In the result, this appeal stands allowed. The conviction and sentence of the appellants recorded by the trial Court are set aside and they are acquitted of the charges under Sections 302/34 and 201, I.P.C. Appellants Irfan and Haroon are on bail. They need not surrender. Their bail bonds are cancelled and sureties stand discharged. Appellants Saleem and Shaukeen are in jail. They shall be released forthwith, if not required or detained in any other case. 12. The office is directed to certify the judgment to the Court concerned for necessary action. ————