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2014 DIGILAW 473 (ALL)

MAQSOOD v. STATE OF U. P.

2014-02-12

AMAR SARAN, VIRENDRA VIKRAM SINGH

body2014
JUDGMENT Hon’ble Virendra Vikram Singh, J.—This criminal appeal has been filed against the judgment and order dated 8.4.1999 passed by the Additional Sessions Judge, Jalaun at Orai whereby the appellant Maqsood has been convicted for offence under Sections 302, 376 and 201 read with Sections 302/376 IPC and has been sentenced to undergo ten years RI for offence under Section 376 IPC, life imprisonment for offence under Section 302 IPC and five years RI for offence under Section 201 read with Section 302/376 IPC. However, all the sentences were directed to run concurrently. 2. As per prosecution version, as it has come forth in the FIR lodged by Jameel Ahmad, the father of the deceased-victim, Km. Rukhsar is that on 10.11.1996 his daughter Km. Rukhsar aged about seven years left the house at 8.30 in the evening for purchase of crackers. When she did not return till 9.00 p.m. that he went out in search of his daughter. During the course of search, the witness, Sadiq informed that Rukhsar was seen in the company of Maqsood, appellant. While he was going back to his house that the witnesses, Chunna and Kabir Ansari again informed that Rukhsar was seen by them, being taken by Maqsood by way of Dhansu Dhobi lane. Despite the intensive search, neither Rukhsar nor Maqsood could be detected. On the next day morning while the search for Rukhsar was repeated by the complainant alongwith his associates that Maqsood was seen coming from the side of Badimata. He was apprehended by the complainant and villagers making search for Rukhsar. While Maqsood, the appellant was interrogated about the whereabouts of Rukhsar and was threatened of being handed over to the police, that he confessed that he took away Rukhsar with him to the field of Hardas where at about 10.30 in the night, he committed rape with Rukhsar and while she fell unconscious, he strangulated her to death and throw the dead body to the Nala of the pond. The appellant is also said to have pointed out the dead body, which was seen by the complainant and the witnesses. 3. The complainant, Jameel Ahmad got scribed written report Exhibit Ka-1 and lodged the same at police station, Konch. The Investigating Officer visited the spot and conducted inquest proceedings of the dead body of Rukhsar and sent the cadaver for post-mortem. 3. The complainant, Jameel Ahmad got scribed written report Exhibit Ka-1 and lodged the same at police station, Konch. The Investigating Officer visited the spot and conducted inquest proceedings of the dead body of Rukhsar and sent the cadaver for post-mortem. After investigation, a charge-sheet was submitted against the appellant for the offences under Sections 376, 302 and 201 IPC for which the accused faced trial and was convicted in the manner described above. A charge under Sections 376, 302 and 201 IPC was framed against the appellant on 5.5.1997. He denied the charges and claimed to be tried. 4. In order to prove its case, the prosecution has examined P.W. 1, Jameel Ahmad, P.W. 2 Zahiruddin, P.W. 3 Chunna, as witnesses of fact P.W. 4 Dr. S.C. Paliwal, who conducted the post-mortem of Rukhsar, P.W. 5 S.I. Sher Singh Yadav, the Investigating Officer, P.W. 6 retired S.I. Ganpat Singh, who conducted inquest and Inspector, Saroj Pal Manoj, the other Investigating Officer of the case. After the closure of the prosecution evidence while the incriminating circumstances appearing against the appellant were put to him, he has denied all the accusations against him and has stated that the complainant, Jameel Ahmad owed a sum of Rs. 1,50,000/-(rupees one lac fifty thousand) to him and while this money was demanded by the appellant, he was handed over to the police and was falsely implicated in this case. 5. We have heard Shri Vinay Saran, learned Amicus Curiae for the appellant, Shri R. K. Singh and Shri Vimlendu Tripathi, learned Additional Government Advocate for the State and perused the record of the case. On behalf of the appellant, it has been argued that the evidence against the appellant is circumstantial in nature and the circumstance that has been brought forth against the appellant does not make the chain of evidence so complete that no inference other than the guilt of the appellant could be gathered. In respect of different circumstances, the evidence has been referred, which shall be discussed under each heads of the circumstances that appeared against he appellant. Evidence of Last seen: 6. The evidence of last seen has been relied upon by the prosecution as a vital circumstance to indicate the commission of offence by the appellant. 7. In respect of different circumstances, the evidence has been referred, which shall be discussed under each heads of the circumstances that appeared against he appellant. Evidence of Last seen: 6. The evidence of last seen has been relied upon by the prosecution as a vital circumstance to indicate the commission of offence by the appellant. 7. It has been argued on behalf of the appellant that P.W. 1, Jameel Ahmad is not a witness to the evidence of last seen. The other witness, P.W. 3, Chunna in his cross-examination has stated that he saw the appellant, Maqsood with Rukhsar at 5.00 p.m., which is not believable as according to the own prosecution case in the FIR and otherwise, Rukhsar was found missing and was kidnapped sometimes after 8.30 in the evening while she left her house for purchase of crackers. About the other witness, P.W. 2, it was argued that this witness has stated that he informed to have witnessed Rukhsar with the appellant on the next day whereas Jameel Ahmad has stated that he was informed about the fact of last seen of Rukhsar with the appellant on the same day in the evening. 8. It is true that P.W. 1, the complainant has not given the evidence of last seen. The factum of last seen has been supported by two witnesses, P.W. 2, Zahiruddin and P.W. 3, Chunna. The statements of these witnesses have been recorded in Court, after a period of about sixteen months from the date of occurrence and with the lapse of time, which took in recording the statements of witnesses before the trial Court as also the environment of the Court and trauma and teasing cross-examination, such contradictions are likely to occur in the statements of witnesses. The contradictions as it have been pointed out are of a trifle nature and do not demolish the very edifice of the prosecution version. In any case, the contradictions are not so vital so as to dislodge the prosecution version or to hold that the appellant was never seen in the company of Rukhsar. Thus, from the evidence adduced the prosecution has successfully proved the circumstance that the appellant was seen in the company of Rukhsar for the last time and, thereafter, she was never seen alive and her dead body was detected. Confession of the accused. 9. Thus, from the evidence adduced the prosecution has successfully proved the circumstance that the appellant was seen in the company of Rukhsar for the last time and, thereafter, she was never seen alive and her dead body was detected. Confession of the accused. 9. It has been argued by the Learned Amicus Curiae that since the confession was not made before the police, the benefit of Sections 27 of the Indian Evidence Act is not available to the prosecution. It has again been argued that as per admitted case of the prosecution, the appellant was threatened of dire consequence and against this threatening by a mob, the appellant is said to have confessed his guilt. It has also been argued that the appellant after his arrest by the public was manhandled and severely assaulted. The injuries were noted in the injury report though the same has not been proved by the prosecution or the defence. It cannot be disputed that the provisions of Sections 27 of the Indian Evidence Act are not available to the prosecution as the confession was not made by the appellant while he was in custody of the police. Section 27 of the Evidence Act is an exception to Sections 25 and 26 of the Evidence Act, which makes the confession made by accused in the custody of police as irrelevant. Section 27 of Act provides an exception to the earlier Sections that only such part of the confession recorded in custody of the police, which leads to the discovery may be relied upon. Thus, whenever the accused is said to have confessed before the police while being in custody, a restriction is always imposed about the admissibility of the statement of the accused, but no such restriction has been laid down when the accused is not in the custody of the police and he has made the confession before the private persons. 10. It is true that Section 24 of the Indian Evidence Act provides that any confession obtained under inducement, threat or promise is not admissible, but in order to attract this provisions, it is necessary that such inducement, threat or promise must have flown from a person in authority. 10. It is true that Section 24 of the Indian Evidence Act provides that any confession obtained under inducement, threat or promise is not admissible, but in order to attract this provisions, it is necessary that such inducement, threat or promise must have flown from a person in authority. It is nowhere the case of the prosecution nor any suspicion could be raised on behalf of the accused-appellant that any of the persons in the mob was a person in authority and the appellant confessed his guilt against such inducement. The injury report of the accused has not been proved by any of the party. It is most natural that whenever any person is found of committing the crime specially of the nature involved in the present case, the mob does not spare the accused but in the present case there is no evidence that the appellant confessed his guilt following the assault by the mob. Thus it cannot be said that the confession made by the appellant was hit or was not admissible in view of the provisions of Section 24 of the Indian Evidence Act. The contents of confession again finds corroboration from the fact that in the post-mortem examination report, such injuries were found, which supported the confession of the appellant that he forcibly committed rape over the young kid Rukhsar and while she went unconscious he strangulated her and had thrown the dead body. In the post-mortem report laceration pf the hymen was detected and the cause of death was found to be strangulation. Other injuries were also noted over the dead body which apparently appears to have been caused due to the resistance raised by the deceased. On behalf of the appellant while placing reliance on the judgment of the Apex Court in Param Hans Yadav and Sadanand Tripathi v. State of Bihar and others, (1987) 2 SCC 197 , it has been argued that since the confession of the appellant was obtained after extending threat and manhandling him, the same cannot be relied upon. 11. In the case before the Hon’ble Apex Court, the facts were different. The appellant Param Hans Yadav was severely beaten and manhandled by the mob where after he made the confession. The Hon’ble Apex Court has observed that Param Hans Yadav was beaten up, he confessed his guilt to ensure that the assault be stopped. 11. In the case before the Hon’ble Apex Court, the facts were different. The appellant Param Hans Yadav was severely beaten and manhandled by the mob where after he made the confession. The Hon’ble Apex Court has observed that Param Hans Yadav was beaten up, he confessed his guilt to ensure that the assault be stopped. His plea in such a situation would neither be voluntary nor natural. It would not be proper to rely upon the same for any purpose. The facts in the present case are altogether different. There is no evidence to the effect that the appellant was assaulted or manhandled to extract confession from him. The only evidence is that he was given a threat of being handed over to the police. The injury report of the appellant though, available on the record, but neither the prosecution nor the accused has taken any step to get this injury report proved by the concerned witnesses. Hence, the fact that the appellant was manhandled or received injuries remains unproved. 12. Apart from it as per the provision of Section 24 of the Indian Evidence Act, the inducement, threat or promise to extract confession must have been flown from a person in authority. This evidence is definitely lacking in the present case as none of the member of the mob was a man in authority. 13. The question as to whether the close relative of the deceased could be termed as the person in authority has been considered by the Apex Court in the case of (Darshan Lal v. State of Jammu and Kashmir, (1975)4 SCC 33 . In this case the only evidence was that the accused was charged with the murder of his wife and the only evidence was the confession of the accused before the wife’s uncle and the cousin. The Apex Court considered the fact as whether these close relatives of the deceased could be the persons in authority and whether the confession made before these witnessed is reliable. In para 5 of the judgment the Apex Court has observed: “The wife’s uncle has stated that he told the appellant that what had happened and he should tell the truth about his wife and that on this accused told him that he had killed his wife with a knife and thereafter thrown her body in the river. In para 5 of the judgment the Apex Court has observed: “The wife’s uncle has stated that he told the appellant that what had happened and he should tell the truth about his wife and that on this accused told him that he had killed his wife with a knife and thereafter thrown her body in the river. To the same effect is the statement of his son. We agree with the High Court that these two persons cannot be said to be the persons in authority and the confession made by the appellant does not suffer from any legal infirmity. If that confession is reliable the confession of the appellant has to be upheld” 14. The similar facts are involved in the present case where the confession has been made before the father of the deceased and also before the independent witnesses. There does not appear any infirmity in the statement of the witnesses nor such persons can be termed as the man in authority. The evidence of these witnesses is intact and the confession made by the accused is found to be proved. 15. The confession is relevant under Section 8 of the Indian Evidence Act, as it shows the conduct of the appellant. When the whereabouts of the deceased were not known to anyone that it was the appellant who after the confession pointed out the dead body of Rukhsar lying in the pond. The confession also appears to be relevant under Section 9 of the Indian Evidence Act, which reads as follows : “9. Facts necessary to explain or introduce relevant facts.—Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose. Illustrations (a) The question is, whether a given document is the will of A. The state of A’ s property and of his family at the date of the alleged will may be relevant facts. Illustrations (a) The question is, whether a given document is the will of A. The state of A’ s property and of his family at the date of the alleged will may be relevant facts. (b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged to be libellous is true. The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue. The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though the fact that there was a dispute may be relevant if it affected the relations between A and B. (c) A is accused of a crime. The fact that, soon after the commission of the crime, A absconded from his house, is relevant under Section 8, as conduct subsequent to and affected by facts in issue. The fact that at the time when he left home he had sudden and urgent business at the place to which he went, is relevant, as tending to explain the fact that he left home suddenly. The details of the business on which he left are not relevant, except in so far as they are necessary to show that the business was sudden and urgent. (d) A sues B for inducing C to break a contract of service made by him with A. C, on leaving A’ s service, says to A-” I am leaving you because B has made me a better offer.” This statement is a relevant fact as explanatory of C’ s conduct, which is relevant as a fact in issue. (e) A, accused of theft, is seen to give the stolen property to B, who is seen to give it to A’ s wife. B says as he delivers it-” A says your are to hide this.” B’ s statement is relevant as explanatory of a fact which is part of the transaction. (f) A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of the transaction.” 16. The confession made by the appellant in the present case explained and elopement of Rukhsar. The fact in issue in the present case is how Rukhsar was murdered. The cries of the mob are relevant as explanatory of the nature of the transaction.” 16. The confession made by the appellant in the present case explained and elopement of Rukhsar. The fact in issue in the present case is how Rukhsar was murdered. This fact stood explained with the confession of the appellant, hence the same is also admissible under the provisions of Section 9 of the Indian Evidence Act. 17. Even if, for the sake of argument, it be assumed that the confession is not a relevant piece of evidence in toto and was not admissible in evidence in view of the bar provided under Section 24 of the Indian Evidence Act, the confession made by the appellant tells of his conduct and it was in pursuance of the confession that the dead body of Rukhsar could be detected and thus the confession of the appellant made the recovery of the dead body possible and thus this piece of evidence was also admissible in view of the provisions of Section 8 and Section 9 of the Indian Evidence Act. 18. Corroborative evidence to confession made by the appellant. Now, the Court proceeds to examine whether the confession made by the appellant had any corroboration behind it. The appellant as per the prosecution case and the confession made by him took away Km. Rukhsar, a young girl of about seven years to a lonely place, committed rape over her and thereafter strangulated her to death. Thereafter, the dead body was stated to have been thrown in the nearby pond. The post-mortem examination report of Km. Rukhsar shows that as many as twelve different injuries were found over the cadaver including the laceration of the hymen, which is injury No. 2. Other injuries, which were in the form of abraded contusions over different parts of the body appear to have been caused to subside the resistance, the deceased must have raised. The cause of death was found to be asphyxia as a result of strangulation and five abraded contusions were also found around the neck, which show the pressure made by the appellant over the neck of Km. Rukhsar in order to ensure her death. The dead body was also recovered in pursuance to the confession made by the appellant. The cause of death was found to be asphyxia as a result of strangulation and five abraded contusions were also found around the neck, which show the pressure made by the appellant over the neck of Km. Rukhsar in order to ensure her death. The dead body was also recovered in pursuance to the confession made by the appellant. Thus, all what has been said by the appellant in the shape of confession has fully been corroborated in terms of injuries shown in the post-mortem examination report and the recovery of the dead body of Km. Rukhsar from the place pointed out by the appellant. 19. Whenever, any dead body or any article is recovered in pursuance to the pointing out of any accused, it necessarily gives rise two different interpretations firstly, that the accused was the person who concealed the dead body or such article at the place he pointed out and secondly that the accused had simply the knowledge of the presence of dead body or article to be at the place, he pointed out. 20. In the present case, there is no case of the defence nor even any suggestion has been put to any of the witnesses that the dead body was recovered prior to the confession of the accused or that the accused simply had the information about the presence of the dead body at the place, he pointed out. Thus, the only inference, which follows is that it was the appellant, who concealed the dead body at a place from where it was recovered. Under the circumstances of the case, the confession of the appellant stands proved and is also corroborated from the post-mortem examination report and the recovery of dead body. 21. On behalf of the prosecution reliance has been placed on the report of the chemical examiner dated 9.5.1997 whereby the frock, panty, earrings, vagina slid of the deceased, Rukhsar and the underwear of the accused were found to be blood-stained and further semen was also detected over the frock, panty and the underwear of the accused. On behalf of the prosecution post-mortem of Km. Rukhsar has been proved, which shows that article No. 1 to 4 mentioned in the report were collected from the dead body at the time of post-mortem examination. On behalf of the prosecution post-mortem of Km. Rukhsar has been proved, which shows that article No. 1 to 4 mentioned in the report were collected from the dead body at the time of post-mortem examination. However, there is no evidence on record as to how and in what manner the underwear of the appellant was taken in police custody and as such the report of the chemical examiner dated 9.5.1997 can only be relied upon to the extent that the clothes and the vagina slid of the deceased were found carrying human blood and semen over it, but no such conclusion can be recorded that the underwear of the accused was found to be blood stained. Defence of the appellant 22. On behalf of the appellant, a defence has been adduced that the complainant, Jameel Ahmad, father of the deceased owed a huge amount of Rs. 1,50,000/-(rupees one lac fifty thousand) from the appellant and in order to escape his liability of re-payment by utilizing the murder of his daughter, he has falsely implicated the appellant in this case. On behalf of the appellant, no evidence at all has been adduced as to what for or for what occasion, the complainant, Jameel Ahmad borrowed this money and further what was the source of income of the appellant and how he was so capable to impart one and a half lacs of rupees. 23. On the contrary, the evidence of P.W. 1, Jameel Ahmad shows that the appellant was employed with the complainant, P.W. 1 and was getting a meager wages of RS. 50/-(rupees fifty) per day. It has also been admitted that the appellant, Maqsood was the son of his wife’s maternal uncle, This fact stated by P.W. 1, has nowhere been challenged in the cross-examination thus, it can never be assumed that a person earning the wages to the tune of Rs. 50/- per day shall be able to lend an amount of Rs. 1,50,000/- to his master/employee. Thus, it is also evident that the appellant has taken up a false case in defence. 24. The discussion made above abundantly goes to show that the prosecution on the basis of the evidence adduced by it has succeeded in proving the following circumstance against the appellant: 1. That the deceased Rukhsar was last seen alive in the company of the appellant on 10.11.1996 in the late evening. 2. 24. The discussion made above abundantly goes to show that the prosecution on the basis of the evidence adduced by it has succeeded in proving the following circumstance against the appellant: 1. That the deceased Rukhsar was last seen alive in the company of the appellant on 10.11.1996 in the late evening. 2. That on the very next day in the morning the appellant was apprehended by the complainant and the other independent persons with him who were in search of the deceased Rukhsar. 3. That the appellant is said to have made a confession that he sexually ravished Rukhsar and strangulated her to death. 4. That following the confession of the appellant the dead body was found lying at the place pointed out by the appellant. 5. That then complainant did not have any motive to falsely implicate the appellant who happened to be distant relative. 6. That the confession made by the appellant was supported by the recovery of dead body and the injuries noted over the dead body of the deceased Rukhsar. 7. That the appellant adduced a false defence. While these circumstances are found appearing against the appellant, no other inference than that it was the appellant and none else who committed rape over Rukhsar and strangulated her to death can be gathered. Thus the offence under Sections 302, 376 and 201 I.P.C is made out against the appellant and is found proved beyond any reasonable doubt. The conviction of the appellant for these offence has rightly been recorded by the trial. There is no factual of legal flaw in the judgment of the trial Court which deserves to be upheld. The appeal being devoid of merits is liable to be dismissed. Appeal dismissed. The conviction and the sentence of the appellant is hereby upheld. The appellant is detained in custody and he shall face the detention for the period of the sentence imposed on him by the judgment of the trial Court.