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2014 DIGILAW 919 (RAJ)

State of Rajasthan v. Peer Mohd.

2014-04-11

ATUL KUMAR JAIN, GOVIND MATHUR

body2014
JUDGMENT : ATUL KUMAR JAIN, J. By judgment dated 26.8.2013 in Sessions Case No. 39/11 (16/11), the Court of Addl. Sessions Judge, Nagaur had acquitted three accused-persons, namely, (1) Peer Mohd., (2) Ms. Munni Bano and Anwar alias Badda from the charges of Sections 302, 201 and 120B of Indian Penal Code and remaining two accused-persons, namely, (1) Shrawan Singh and (2) Barkat had been acquitted from the charge under Section 201 of Indian Penal Code. 2. The State of Rajasthan has filed D.B. Criminal Leave to Appeal No. 211/2013 against all the five accused-persons against the said judgment and Nawaji Khan, who is uncle of deceased Samaruddin has filed D.B. Criminal Appeal No. 922/2013 against the said judgment. 3. After perusal of the record of the court below and after hearing the learned Public Prosecutor as well as learned counsel for appellant Nawaji Khan, this Court is of the view that no case for leave to appeal is made out in this case in favour of the State of Rajasthan and D.B.Criminal Appeal filed by the uncle of the deceased is also not meritorious and hence without issuing notice to any of the accused-persons, that appeal also deserves to be summarily dismissed at this stage only, for the following reasons:- (1) It has been argued by the State that Ms. Munni Bano(respondent No. 2) was wife of deceased Samruddin and she was having illicit relations with Anwar alias Badda (respondent No. 3) and Samruddin used to admonish Ms. Munni Bano for her illicit intimacy with Anwar alias Badda and because of that reason Ms. Munni Bano had filed a dowry case also against Samruddin and in that case, a compromise had taken place between Samruddin and Ms. Munni Bano and this was a strong motive behind the murder of deceased Samruddin by Ms. Munni Bano in conspiracy of respondent nos. 1 and 3 but the trial court has ignored this strong motive. After hearing the parties before us, this Court is convinced that a person cannot be convicted only on the basis of strong motive unless his involvement or complicity in the alleged offence is proved beyond doubt. Hence the first argument raised by the learned Public Prosecutor as well as by the uncle of the deceased is not tenable. After hearing the parties before us, this Court is convinced that a person cannot be convicted only on the basis of strong motive unless his involvement or complicity in the alleged offence is proved beyond doubt. Hence the first argument raised by the learned Public Prosecutor as well as by the uncle of the deceased is not tenable. (2) Second argument raised by the learned Public Prosecutor as well as by Nawaji Khan is that the deceased was last seen with respondent No. 2 by PW-5 Abdul Gafar and PW-31 Ali Mohd. and still the trial court has not properly appreciated the ' last seen evidence in the true perspective. It has further been argued that when the dead body of Samruddin was recovered in a decomposed condition from a Well, Ms. Munni Bano (respondent No. 2), being wife of Samruddin, neither felt sorry nor had offered any condolence towards the dead body and in spite of the fact that she was in knowledge that her husband might have been murdered by some one, she did not try to search for her husband and in spite of this evidence, the trial court has ignored the facts of the case and acquitted the accused. It has also been argued that PW-8 Pankaj Soni had stated in his statements under Section 161 Cr.P.C. that Ms. Munni Bano offered him to pay rupee one lac for murder of her husband and he did not accept the offer but in spite of such cogent evidence Ms. Munni Bano has wrongly been acquitted by the trial court. The aforesaid argument raised by the learned counsel for appellant-Nawaji Khan is also misconceived because PW-8 Pankaj Soni has been found to be a totally hostile witness and he has totally refused to have given any statement (Ex.P.26) to the police and he states that Ms. Munni Bano had never offered him rupees one lac to kill her husband. 4. So called ' last seen evidence of PW-5 Abdul Gafar and PW-31 Ali Mohd. has also been duly analyzed by the trial court. PW-5 Abdul Gafar says that he had seen Samruddin wearing the same clothes which were worn by the decomposed dead body. He states that he had seen Samruddin on 12.9.2010 or 13.9.2010. He has not been able to give the correct date. He says that perhaps on 12.9.2010 he had seen Samruddin and Ms. PW-5 Abdul Gafar says that he had seen Samruddin wearing the same clothes which were worn by the decomposed dead body. He states that he had seen Samruddin on 12.9.2010 or 13.9.2010. He has not been able to give the correct date. He says that perhaps on 12.9.2010 he had seen Samruddin and Ms. Munni Bano at Harsor crossing. It is pertinent to mention here that the dead body was recovered from the Well on 18.10.2010. This witness, thus cannot be called a witness of last seen evidence. He states that he had started for search of Samruddin on 17.9.2010 and thenafter, perhaps after an interval of 25 days, he had come to know that Ms. Munni, Anwar, Peer Mohd and Barkat had killed Samruddin in conspiracy and they had thrown the dead body in the Well. He says that Pankaj Soni was saying that he had been offered an amount of rupee one lac for killing Samruddin. It is also worth mention here that PW-8 Pankaj Soni has not supported the statement of Abdul Gafar and he has been found to be a hostile witness. Thus, it can be said that so called last seen evidence given by PW-5 Abdul Gafar is meaningless and he has not been able to connect any of the accused-persons with the offence charged. 5. Then comes the statement of PW-31 Ali Mohd, who says that about three years ago, he had seen Samruddin going with Ms. Munni Bano at Harsor crossing. He says that both were saying that they were going to Borawad via Degana and they were saying that they will bring a tractor from Borawad. He does not give the date of incident in his statement. He has not been able to tell the court how many days after that incident, Samruddin was murdered. Thus, so called ' last seen evidence given by this witness is also not worth merit and on the basis of such an ambiguous statement, any person cannot be convicted of the charge of Section 302 or 120B or 201 of Indian Penal Code. 6. Thus, it appears that only on the basis of a motive, the prosecution wants the conviction of the accused-persons. The motive, however strong it may be, cannot take place of the proof of commission of offence. The lady was allegedly having inimical relations with her husband. 6. Thus, it appears that only on the basis of a motive, the prosecution wants the conviction of the accused-persons. The motive, however strong it may be, cannot take place of the proof of commission of offence. The lady was allegedly having inimical relations with her husband. It cannot be supposed that the husband will accompany her to sell her house to purchase a tractor out of the sale proceeds. It appears that Ms. Munni Bano has been prosecuted only because she was allegedly having illicit relations with Anwar alias Badda who is respondent No. 3 in this case. This Court is of the view that merely because of the illicit relation of one accused with another accused, they cannot be prosecuted for murder of Samruddin. 7. Here statement of PW-12 Dr. G.R. Besarwal may also be referred, who states that a decomposed dead body was examined by him. There was no head on the dead body. The post-mortem was conducted by a Medical Board. The Post-mortem Report Ex.P.28 was exhibited by this doctor and it was stated in the report that cause of death could not be given without FSL report. He admits that body was there in the water of the Well since last four to six weeks, but he was not able to explain the basis of that duration. He states that age of the deceased could not have been determined by the post-mortem by the dead body. PW-27 Dr. Kana Ram has also given no extra facts in his statement in this regard. 8. From 13.9.2010 when the deceased was allegedly seen for the last time with Ms. Munni Bano to 17.10.2010 when the decomposed dead body was recovered from the Well, so many circumstances had taken place and the prosecution was not able to explain the chain of circumstances. The prosecution was not able to connect all the links of the incident. It is also worth mention here that on 29.9.2010 only missing person’s report was lodged and no case of murder was registered against the accused-persons, though the relatives of the deceased were sure that the murder has been committed by Ms. Munni Bano in conspiracy with her alleged paramour Anwar and other accused persons. 9. The trial court has also observed that Ms. Munni Bano was wife of the deceased and if some clothes of deceased are recovered from the house of Ms. Munni Bano in conspiracy with her alleged paramour Anwar and other accused persons. 9. The trial court has also observed that Ms. Munni Bano was wife of the deceased and if some clothes of deceased are recovered from the house of Ms. Munni bano, then it cannot be said an evidence of murder by that lady of her husband. One more important fact which has come to the notice of this Court is to the effect that the sample of viscera of dead body and sample of tissues of the parents of the deceased had been sent for examination relating to DNA by FSL but the samples were not found fit for DNA examination and thus, here also an important evidence is missing. 10. In the circumstances of the case, much importance cannot be given to other witnesses, namely, PW-1 Pabu Ram, PW-2 Kanhaiya Lal, PW-3 Smt. Jyoti, PW-4 Sadula Ram, PW-6 Bajrang Lal, PW-7 Imarata Ram, PW-9 Sarajuddin, PW-10 Izaz Mohd., PW-11 Hussain Mohd., PW-13 Tej Singh, PW-14 Ramdev, PW-15 Babib, PW-16 Sajjat Singh, PW-17 Hasam Khan, PW-18 Mubarak, PW-19 Salim, PW-20 Vighore Rastogi, PW-21 Kishan Lal, PW-22 Mohd. Salim, PW-23 Nawaji Khan, PW-24 Mohan Singh, PW-25 Jai Narayan, PW-26 Mukut Bihar, PW-28 Hasan Khan, PW-29 Ramji Lal and PW-30 Safi Mohd. 11. No other arguments have been submitted by the learned Public Prosecutor or the learned counsel for appellant Nawaji Khan, who is uncle of the deceased and hence this Court is in perfect agreement with the detailed appreciation of evidence done by the trial court. The prosecution has not been able to prove the charge of Section 302 or 201 or 120B of Indian Penal Code against any of the accused-persons. 12. In the result, the leave to appeal filed by the State is hereby refused. The appeal filed by the uncle of deceased Nawaji Khan is also not worth acceptance, which is also hereby dismissed and the judgment of the trial court shall remain undisturbed. Record of the court below be sent back with a copy of this judgment immediately. Appeal dismissed.