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2012 DIGILAW 156 (CHH)

MOHAMMED IKLAKH v. STATE OF C. G.

2012-06-22

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT As per Hon'ble Shri Radhe Shyam Sharma, J.:- 1. This appeal is directed against judgment dated 29-9-2011 passed by Additional Session Judge, Durg in Session Trial No.155/2009. By the impugned judgment, accused/appellant Mohammed Iklakh has been convicted and sentenced in the following manner with a direction to run the sentences concurrently :- Conviction Sentence Under Section 302 IPC Imprisonment for life and to pay fine of Rs.5,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 6 months. Under Section 201 IPC Rigorous Imprisonment for 3 years and to pay fine of Rs.1,000/-, in default of payment of fine, to further undergo rigorous imprisonment for month. 2. Case of the prosecution, in brief, is as under : Deceased Kanija Begum was wife of the appellant. Three children born out of their wedlock. The appellant was employed at Durg 1 year prior to the date of incident. On 14-8-2009, the appellant committed murder of the deceased pressing her neck with a computer wire. Dead body of the deceased was found in Shivnath River below the graveyard situated in Village Piparchhedi. Smt. Anita Rawna (PW-1) informed Police Station Pulgaon telephonically. Dehati Merg Intimation (Ex.P-1) was recorded. The Investigating Officer reached the place of occurrence, gave notice (Ex.P-2) to Panchas and prepared inquest (Ex.P-3) on the dead body of the deceased. Identification Panchnama of the dead body of the deceased was prepared vide Ex.P-10. The dead body of the deceased was sent to District Hospital, Durg for post mortem examination vide Ex.P-4. Dr. Vipin Jain (PW-3) conducted post mortem examination of the dead body of the deceased and gave his report (Ex.P-7), in which, he found (i) contusion, 2 cms x 2 cms on nose, (ii) contusion, 1.5 cms x 2 cms between left cheek and eye, (iii) two abrasions on the left forehead and (iv) ligature mark, 14 cms to 18 cms was seen on the neck. He opined that the deceased died due to asphyxia as a consequence of strangulation and the death was homicidal in nature. In further investigation, pair-patti (leg belt), bajaroo bichhiya, bajaroo khinwa and bajaroo copper ring were seized vide Ex.P-6. Memorandum statement of the appellant was recorded under Section 27 of the Evidence Act vide Ex.P-9 and at his instance, computer wire was seized from him vide Ex.P-11. In further investigation, pair-patti (leg belt), bajaroo bichhiya, bajaroo khinwa and bajaroo copper ring were seized vide Ex.P-6. Memorandum statement of the appellant was recorded under Section 27 of the Evidence Act vide Ex.P-9 and at his instance, computer wire was seized from him vide Ex.P-11. Hero Honda Motor Cycle and its registration and insurance papers were seized from the appellant vide Ex.P-12. Regular Merg Intimation (Ex.P-13) and First Information Report (Ex.P-14) were recorded in Police Station Pulgaon. Spot-Map (Ex.P-15) was prepared by Investigating Officer Inspector S.R. Pathare (PW -7). Slippers, nylon rope and bottle were seized from the place of occurrence vide Ex.P-16. Visitors' Register of Hotel Kunal situated at Durg was seized from Manager of the hotel, namely, Manoj Thakur (PW-8) vide Ex.P-17. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Durg, who, in turn, committed the case to the Court of Session, Durg, from where it was received on transfer by Additional Session Judge, Durg, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Vivek Sharma, learned counsel for the appellant argued that the finding of guilt recorded on the basis of evidence of last seen together, memorandum statement of the appellant and recovery of nylon rope and visitors' register of Hotel Kunal, Durg is unreasonable. The above circumstances are not proved beyond reasonable doubt. Even if the circumstances are taker on their face value, it cannot be said that it was the appellant who committed murder of the deceased. Learned counsel further argued that the seized articles were not properly identified. It is well settled that a strong suspicion is not a substitute for a proof, therefore, the finding of guilt recorded by the learned Additional Session Judge is not sustainable and the appellant is entitled for acquittal. 4. Smt. Madhunisha Singh, learned Panel Lawyer for the State/ respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Session Judge do not warrant any interference by this Court. 5. We have heard learned counsel for the parties at length and have perused the record of Session Trial No. 155/2009. Admittedly, there is no eyewitness to the incident and the case of the prosecution is based on the circumstantial evidence. 5. We have heard learned counsel for the parties at length and have perused the record of Session Trial No. 155/2009. Admittedly, there is no eyewitness to the incident and the case of the prosecution is based on the circumstantial evidence. The main circumstances, which the learned Additional Session Judge appears to have taken note of, are as follows:- (i) The deceased was last seen in the company of the appellant, (ii) Memorandum statement of the appellant and at his instance, recovery of computer wire, and (iii) False explanation given by the appellant. 6. So far as the above circumstances are concerned, the learned Additional Session Judge held in paragraph 25 of the impugned judgment that the dead body of the deceased (wife of the appellant) was found at the bank of Shivnath River near the graveyard situated in Village Piparchhedi on 14-8-2009 and the deceased died due to asphyxia as a consequence of strangulation and the death was homicidal in nature. He further held that the appellant and the deceased had stayed in Hotel Kunal, Durg from 10-8-2009 to 6 A.M. of 14-8-2009, but the appellant gave false information regarding death of the deceased. He further held that the appellant had illicit relationship with another lady, which indicates reason for commission of murder of the deceased by the appellant. He further held that the circumstantial evidence go to show that it was the appellant who committed murder of the deceased. 7. In State of Uttar Pradesh Vs. Ram Balak and another (2008) 15 SCC 551, the Hon 'ble Supreme Court held as follows:- "11. "9. it has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, 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. (See Hukam Singh v. State of Rajasthan, (1977) 2 SCC 99, Eradu v. State of Hyderabad, AIR 1956 SC 316, Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330, State of U.P. v. Sukhbasi, 1985 Supp SCC 79, Ba/winder Singh v. State of Punjab, (1987) 1 SCC 1, and Ashok Kumar Chatterjee v. State of MP., 1989 Supp (1) SCC 560). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR 1954 SC 621, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 10. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P., (1996) 10 SCC 193, wherein it has been observed thus: (SCC pp. 206-07, para 21) '21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." 8. In Pad ala Veera Reddy Vs. State of Andhra Pradesh and other AIR 1990 SC 79, the Hon'ble Supreme Court held as follows: "10. ......... This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:- (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 the 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. .........." 9. In Ramreddy Rajesh Khanna Reddy and another Vs. .........." 9. In Ramreddy Rajesh Khanna Reddy and another Vs. State of A.P. (2006) 10 SCC 172, the Hon'ble Supreme Court held as follows: "27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration." [See also Inspector of Police, Tamil Nadu Vs. John David (2011) 5 SCC 509, and State of U.P. Vs. Satish (2005) 3 SCC 114]. 10. Now, we shall proceed to examine the evidence led by the prosecution in order to prove the offence against the appellant and to see whether the prosecution has been able to prove the offence against the appellant inconformity with the above principles. 11. It is not disputed that the deceased was wife of the appellant. It is also not disputed that her dead body was found at the bank of Shivnath River near the graveyard situated in Village Piparchhedi. 12. Asgar Ali (PW-5) deposed that on being asked by the appellant telephonically, he had left his sister (the deceased) in the village of the appellant. Brother of the appellant had taken the deceased from the village to Durg. Thereafter, the appellant had killed the deceased. On 28-8-2009, sister of the appellant talked to him telephonically and told that the deceased had fallen in the water and, therefore, died. He further deposed that on being asked by them the appellant had told that he had killed the deceased. The appellant also told that he killed the deceased due to affair with some other girl. Thereafter, they had gone to Shivnath River. Police Officials had also gone there. The appellant stated there that he killed the deceased pressing his neck with a wire and threw her in the water. The memorandum statement given by the appellant is Ex.P-9, which bears his signatures. He further deposed that his sister (the deceased) was not taken by the appellant. She was taken by the brother of the appellant. He further deposed that the police officials had given 2-3 slaps to the appellant. Police officials beat the appellant saying that why did he kill his wife (the deceased)? He further deposed that his sister (the deceased) was not taken by the appellant. She was taken by the brother of the appellant. He further deposed that the police officials had given 2-3 slaps to the appellant. Police officials beat the appellant saying that why did he kill his wife (the deceased)? It is true that due to beating by the police, a person states the same as the police seeks. He further deposed that his diary statement was recorded by the police after 20 days of the incident. 13. Akhtar Ali (PW-6) deposed that the appellant had stated in the police station that he had killed the deceased pressing her neck with a wire. He further deposed that he had recognised the photo of the deceased affixed on the board of the police station. He further deposed that it is true that while making statement before the police, he had raised a doubt about the death of the deceased and, therefore, he had come to Durg along with his brother Asgar Ali (PW-5) and Israr, brother-in-law (Devar) of the deceased. In cross examination, he deposed that the appellant had stated regarding the killing in Police Station Bilaspur, Yamuna Nagar, Haryana. It is true that police officials of Yamuna Nagar and police officials of Durg Police Station were present-in Police Station Bilaspur (Haryana). He further deposed that they had come to Durg after about 25 days of the incident. What was done by the police during those 25 days was not known to him. 14. From the evidence of Asgar Ali (PW-5) and Akhtar Ali (PW-6), it appears that the appellant made his confessional statement before the police officials, which is not admissible in evidence and cannot be used against the appellant. It also appears that due to torture by the police officials, the appellant gave the same statement as the police officials intended. Therefore, the confessional statement of the appellant made before the police officials cannot be used against the appellant. 15. In the present case, the prosecution adduced the circumstance that the appellant and the deceased had stayed at Hotel Kunal, Durg from 10-8-2009 to 6 A.M. of 14-8-2009. For proving this circumstance, the prosecution examined Manoj Singh Thakur (PW-8). 16. Manoj Singh Thakur (PW-8) deposed that police had seized the register of Hotel Kunal. 15. In the present case, the prosecution adduced the circumstance that the appellant and the deceased had stayed at Hotel Kunal, Durg from 10-8-2009 to 6 A.M. of 14-8-2009. For proving this circumstance, the prosecution examined Manoj Singh Thakur (PW-8). 16. Manoj Singh Thakur (PW-8) deposed that police had seized the register of Hotel Kunal. He further deposed that in the said register, entries were made regarding the customers who stayed in the hotel. At page 44 of the said register, entry was made regarding the appellant and the deceased that they stayed in Room No. 104 of the hotel. 17. Now, we shall examine whether it is established from the evidence of Manoj Singh Thakur (PW-8) that the appellant and the deceased had stayed at Hotel Kunal, Durg? 18. Manoj Singh Thakur (PW-8) deposed that he was sitting on the counter of the hotel from 9:30 A.M. to 9:30 P.M. In addition to him, Raju and Sagar were also sitting on the counter. He further deposed that the entries made in the register (Ex.P-22) were not made by him. He was not able to recognise the person about whom entry was made regarding his stay in the hotel. 19. The appellant is said to have made an entry in the register duly maintained by Hotel Kunal. So far as this entry is concerned, the same has been exhibited on the basis of statement of Manoj Singh Thakur (PW-8). Though he has nowhere stated that he knew either the writings or signatures of the appellant, undisputedly, the appellant never made the entry in presence of Manoj Singh Thakur (PW-8). Thus, the entry in the register having not been legally proved is not admissible in evidence. The prosecution has not adduced any evidence to the effect that the signature of the appellant was present in the register (Ex.P-22C) of the hotel. There is no other evidence in relation to stay of the appellant in the hotel from 10-8-2009 to 6 A.M. of 14-8-2009. There being no substantive evidence in relation to this very circumstance, we are of the view that the same cannot be proved by the statement of Manoj Singh Thakur (PW-8). 20. In the instant case, brother of the appellant, who had taken the deceased to Durg, was a material witness for the prosecution, but the prosecution did not examine him. There being no substantive evidence in relation to this very circumstance, we are of the view that the same cannot be proved by the statement of Manoj Singh Thakur (PW-8). 20. In the instant case, brother of the appellant, who had taken the deceased to Durg, was a material witness for the prosecution, but the prosecution did not examine him. For want of that, it is not proved that the appellant had stayed in Hotel Kunal at Durg along with the deceased. 21. Asgar Ali (PW-5) deposed that on 28-8-2009, the appellant telephoned him that the deceased fell down in the water and died. 22. So far as the evidence of last seen together is concerned, the prosecution adduced evidence of Asgar Ali (PW-5) and Manoj Singh Thakur (PW -8). From their evidence, it is not proved that the appellant had stayed in Hotel Kunal at Durg along with the deceased. The prosecution did not prove that the deceased was last seen in the company of the appellant. Therefore, the last see theory is not proved by the prosecution. 23. The next circumstantial evidence adduced by the prosecution is alleged false explanation given by the appellant regarding death of the deceased. 24. Asgar Ali (PW-5) deposed that the appellant informed him telephonically that the deceased fell down in the water and died. He further deposed that on being asked, the appellant told him that he took the deceased to Shivnath River and killed her there. Akhtar Ali (PW-6) deposed that the appellant told him that he killed the deceased by throttling. 25. Now, we shall examine whether the evidence of above two witnesses are cogent and reliable? 26. Asgar Ali (PW-5) deposed that his sister (the deceased) was not taken by the appellant. She was taken by the brother of the appellant. He further deposed that police officials had given 2-3 slaps to the appellant. Police officials had asked the appellant why did he kill his wife and they continued to torture him. It is true that due to torture by the police officials, the appellant gave the same statement as the police officials intended. 27. Akhtar Ali (PW-6) deposed that the appellant had informed about the death of the deceased. On 30-8-2009 that the deceased died due to her fall in the water. It is true that due to torture by the police officials, the appellant gave the same statement as the police officials intended. 27. Akhtar Ali (PW-6) deposed that the appellant had informed about the death of the deceased. On 30-8-2009 that the deceased died due to her fall in the water. He further deposed that the appellant had admitted before the police officials regarding throttling of neck of the deceased by him. 28. S.R. Pathare (PW -7) deposed that it is true that at the time of inquest proceeding, nobody had told him that the appellant was seen at the place of occurrence. It is also true that during the investigation, he did not get any evidence which could show that the appellant was seen with any lady on any motor cycle. He did not know that the appellant had informed about missing of his wife in the village or to the family members or not. He further deposed that the appellant had gone to Haryana and informed to his family members that his wife fell down in the river and died. He further deposed that he did not produce any document in this regard. 29. Looking to the evidence of Asgar Ali (PW-5) and Akhtar Ali (PW6), it appears that the appellant confessed before the police officials, therefore, the confessional statement of the appellant is not admissible in evidence. No such evidence is adduced by the prosecution which could show that the appellant gave false information regarding death of the deceased. So far as the evidence of Asgar Ali (PW-5) and Akhtar Ali (PW-6) is concerned, the same is not reliable, cogent and trustworthy. 30. The next circumstantial evidence adduced by the prosecution is memorandum and recovery. 31. S.R. Pathare (PW -7) deposed that he recorded the statement of the appellant under Section 27 of the Evidence Act vide Ex.P-9 and at his instance, computer wire was seized vide Ex.P-11. Asgar Ali (PW-5) deposed that on being given by the appellant, a wire was seized. Akhtar Ali (PW-6) deposed that he did not see the wire. S.R. Pathare (PW -7) deposed that it is true that the place of occurrence is an open place near which National Highway is situated and the same is accessible by all. It is true that he had not arranged identification of the seized articles chappal, bottle, etc. Akhtar Ali (PW-6) deposed that he did not see the wire. S.R. Pathare (PW -7) deposed that it is true that the place of occurrence is an open place near which National Highway is situated and the same is accessible by all. It is true that he had not arranged identification of the seized articles chappal, bottle, etc. It is also true that arrangement for identification of the articles, seized vide Ex.P-6, was not made. He further deposed that it is also true that the seized articles are easily available in the market. 32. The computer wire was recovered from the graveyard which was an open place. It was accessible by anybody else. The computer wire is a common article. There is possibility of throwing of the computer wire in the graveyard as it is a common article used by any person. 33. The prosecution has not been able to prove that the seized motor cycle was used by the appellant and the deceased and the appellant was last seen in the company of the deceased on the said motor cycle. 34. In Ashish Batham Vs. State of Madhya Pradesh AIR 2002 SC 3206, the Hon'ble Supreme Court held that mere suspicion, however, strong or probable it may be is no effect substitute for the legal proof required to substantiate the change of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between 'may be true' and 'must be true' and this basic and golden rule only helps to maintain the vital distinction between 'conjectures' and 'sure conclusions' to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record. 35. The circumstances, namely, finding of computer wire and seizure of motor cycle, which, according to the prosecution, were used by the appellant and the deceased on the date of occurrence are insufficient. The prosecution did not adduce any cogent and reliable evidence that the deceased was last seen in the company of the appellant. The prosecution utterly failed to prove circumstantial evidence of last seen together. The prosecution did not adduce any cogent and reliable evidence that the deceased was last seen in the company of the appellant. The prosecution utterly failed to prove circumstantial evidence of last seen together. It is difficult to connect that the seized computer wire and motor cycle were used by the appellant. It is difficult to rely upon these circumstances as incriminating circumstances. Therefore, the circumstantial evidence of last seen together, memorandum statement and recovery of computer wire are not convincing and reliable and cannot be based for conviction of the appellant. 36. We have carefully examined the entire evidence available on record. We are of the view that the learned Additional Session Judge erred in law in resting the conviction of the appellant on the circumstantial evidence of last seen together, memorandum statement and recovery of computer wire and motor cycle. We are of the view that the conviction of the appellant under Sections 302 and 201 IPC cannot be sustained on the basis of above circumstantial evidence. We find that the chain of circumstances is not at all complete. 37. In the result, the appeal is allowed. The conviction and sentences of the appellant under Sections 302 and 201 IPC are set aside. He is acquitted of the charges framed against him. He is in jail. He be set at liberty forthwith, if not required in any other case. Appeal Allowed.