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2012 DIGILAW 349 (UTT)

RITA RANI v. STATE OF UTTARANCHAL

2012-07-04

SERVESH KUMAR GUPTA, SUDHANSHU DHULIA

body2012
JUDGMENT Per: Hon’ble Servesh Kumar Gupta, J. (Oral) In criminal appeal no.160/2005, the appellant Rita Rani is being represented by Mr. Tapan Singh, Advocate, i/b Mr. Lokpal Singh, Advocate but there is no representation on behalf of any other appellants. Since Mr. Tapan Singh is apprised with the entire facts of the case, so this Court, purely in the interest of justice, appoints him as amicus curiae for rest of the appellants, with his consent. Consequently, this Court has given hearing to Sri Tapan Singh, Advocate, appearing for all the appellants as well as Sri R.P. Nautiyal, Deputy Advocate General (Criminal) for the State and perused the entire material available on record. 2. All these criminal appeals are being disposed of by this common judgment and order, as they have arisen out of the same judgment. 3. The challenge, by way of all these appeals, is to the judgment and order dated 7.10.2003, rendered by the Additional Sessions Judge/Ist FTC, U.S. Nagar, while adjudicating the Sessions Trial No.74 of 2000, State Vs. Nasir and four others, whereby the appellants/accused Nasir, Ikram, Shakeel and Smt. Rita Rani have been convicted for the offences of Section 302/34 IPC and sentenced to undergo imprisonment for life. These all accused have further been convicted for the offence of Section 201 IPC and each of them has been sentenced to undergo five years’ R.I. However, the appellant/accused Asbey Ali was convicted for the offence of Section 201 IPC and sentenced to undergo R.I. for five years. 4. In brief, the facts, as disclosed from the FIR (Ex.A-1) lodged by Nazir Ahmed (father of deceased) on 26.7.1999, are that his son Nafees Ahmed, who used to live along with the accused Rita Rani R/o ‘Khera Rudrapur’ within the territorial jurisdiction of P.S. Rudrapur, was missing since 3.7.1999. The complainant made a massive search for his son but in vain. On this report, the police came into motion and arrested the accused/appellant Nasir, who disclosed to PW2 S.I. Surendra Pal Singh that with the aid and assistance of other co-accused persons, ‘Nafees’ was first murdered and later been buried in the forest of ‘SWAR’ (District Rampur). The complainant made a massive search for his son but in vain. On this report, the police came into motion and arrested the accused/appellant Nasir, who disclosed to PW2 S.I. Surendra Pal Singh that with the aid and assistance of other co-accused persons, ‘Nafees’ was first murdered and later been buried in the forest of ‘SWAR’ (District Rampur). The sub-inspector took brothers of deceased, namely Shakeel Ahmed and Kafil Ahmed, with him at the afore-named forest, where at the instance of accused Nasir, the dead body of Nafees was recovered after one month and eighteen days from the date of missing. The recovery memo was also prepared at the spot, which is Ex.A-2. The dead body was found in a highly decomposed state and the same was almost unidentifiable, but somehow, it could be identified by his above-named brothers. 5. The inquest report (Ex.A-4) was prepared on 18.8.1999 at 3:45 PM. The witness of inquest (Panchas) could not assign any reason about the cause of death, inter alia, for the reason that the body was in a highly decomposed state. 6. The autopsy (Ex.A-12) was conducted on 19.8.1999 at 12:00 noon by PW3 Dr. Raj Kishore Tandon, who found that it was a putrefied body having bones and some of rotten flesh. The medical officer was also of the view that the over femur part of the organs were badly putrefied and nothing could be identified except prostrate in pelvic region. As such, the medical officer, who conducted the autopsy, could not ascertain the cause of death. 7. The police, after completion of investigation, submitted chargesheet against all the five accused, namely, Nasir, Ikram, Shakeel, Smt. Rita Rani and Asbey Ali for the offences of Section 302/201 IPC. Learned Additional Sessions Judge on 14.9.2000 framed charge against all the five accused under Sections 302/34 and 201 IPC, which was abjured by them. 8. The prosecution, in order to prove its case, has examined PW1 Nazir Ahmed, who is father of deceased, PW2 S.I. Surendra Pal Singh, who started the investigation, PW3 Dr. Raj Kishore Tandon, who conducted the autopsy, PW4 Shakil Ahmed, who is the witness of recovery of dead body and PW5 S.I. B.P.S. Malik, who submitted the chargesheet against the accused. 9. Raj Kishore Tandon, who conducted the autopsy, PW4 Shakil Ahmed, who is the witness of recovery of dead body and PW5 S.I. B.P.S. Malik, who submitted the chargesheet against the accused. 9. Thereafter, statements of the accused persons were recorded u/s 313 Cr.P.C., who have simply denied their involvement in the crime but no evidence was led by them in defence. 10. This Court, having heard learned counsel for the parties, finds that the trial court has based its findings of conviction solely on the confession made by accused Nasir before the Investigating Officer Surendra Pal Singh (PW2). According to P.W.2, he arrested the accused Nasir during the course of investigation, who disclosed that on 30.6.1999, he along with accused/appellants Ikram, Shakeel and Rita Rani took deceased Nafees at ‘Swar’ (District Rampur). In the intervening night of 30.6.99/1.7.99, they all stayed at the house of his (Nasir’s) maternal uncle Asbey Ali, where the accused Nasir, Ikram and Shakeel slept in a room while the accused Reeta Rani slept in a thatch outside the room. On that fateful night, accused Reeta Rani, who had allegedly hatched this conspiracy, tied a rope around the neck of Nafees when he was fast asleep and strangulated him. This task was facilitated by the accused Ikram and Shakeel. The accused Rita Rani also smothered Nafees whereas the accused Nasir pressed his stomach. In this manner, Nafees was killed. Later on, with the assistance of Asbey Ali, all of them carried the dead body of Nafees to the nearby forest where they buried the dead body. The Investigating Officer has also adverted the place of burial in the site plan (Ex.K-11) at point ‘A’. 11. Later, at the instance of Nasir, PW2 S.I. Surendra Pal Singh recovered the dead body in a highly decomposed state, as afore-mentioned, and thus, on the basis of this recovery, the trial court has accepted the disclosure from the accused Nasir as admissible under Section 27 of the Evidence Act to the extent of finding all the accused persons guilty, as afore-stated. 12. Even the statement of accused Nasir has not been got recorded by the Investigating Officer before the Magistrate under Section 164 Cr.P.C. 13. In the instant case, PW1 Nazir Ahmed is the father of deceased who has proved the missing report (Ex.A-1) in respect of his son lodged by him, whereas PW3 is Dr. 12. Even the statement of accused Nasir has not been got recorded by the Investigating Officer before the Magistrate under Section 164 Cr.P.C. 13. In the instant case, PW1 Nazir Ahmed is the father of deceased who has proved the missing report (Ex.A-1) in respect of his son lodged by him, whereas PW3 is Dr. Raj Kishore Tandon, who conducted autopsy on the so recovered body, has proved the autopsy report Ex.Ka-12. PW4 Shakil Ahmed is simply a witness of the recovery of dead body, who has proved the recovery memo (Ex.A-2), while PW5 is S.I. B.P.S. Malik, who submitted chargesheet in the matter when the investigation was made over to him at a later stage. 14. We, however, are of a considered view that the prosecution could not produce any substantial testimony in order to prove the guilt against any of the accused persons. In our opinion, the accused/ appellants cannot be held guilty solely on the basis of statement of accused/appellant Nasir, which was made by him u/s 161 Cr.P.C. before the Investigating Officer, coupled with the recovery of dead body of deceased Nafees, much less the corpse was in such a highly decomposed state as to make it completely unidentifiable. Therefore, the findings, arrived at by the trial court in recording the conviction, are patently perverse and cannot be sustained in the eyes of law. 15. In view of what has been stated above, all the four appeals are allowed. The conviction and sentence, as imposed by the trial court against each of the appellants/accused, is hereby set aside. The appellants are already on bail. They need not surrender. Their sureties are hereby discharged.