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Madhya Pradesh High Court · body

2015 DIGILAW 13 (MP)

Afsar Khan v. State of M. P.

2015-01-06

AJIT SINGH, N.K.GUPTA

body2015
JUDGMENT Gupta, J. -- 1. Both the criminal appeals which have been filed against the common judgment dated 10.4.1997 passed by the Additional Sessions Judge, Begumganj District Raisen in S.T. No.72/1992, are being disposed off by the present judgment. 2. The appellants have preferred these appeals against the aforesaid judgment whereby each of them have been convicted for an offence under section 302 read with section 34 of IPC and sentenced to life imprisonment with fine of Rs.1,000/-. The default sentence of 4 months' simple imprisonment was also inflicted in lieu of payment of fine. 3. The prosecution's case, in short, is that on 20.9.1991 a dead body of Mushtaque Ahmed was found in the field of Satyanarayan Dubey at Village Kundali (Police Station Bamhori District Raisen). The dead body was decomposed, however it was sent for the post-mortem. Dr. B.D.Khare (PW9) performed the postmortem on the body of Mushtaque Ahmed at the Community Health Centre Bareli and gave his report Ex.P-5. He found that the deceased Mushtaque had died 48-72 hours prior to the time of post-mortem. He found mainly three injuries on the deceased. Out of them, one injury was on the left neck, the second injury was on the back below the right shoulder and the third was on the left arm. In his opinion, the deceased had died due to internal hemorrhage and shock. However, his viscera was preserved and sent for forensic science analysis. After recovery of the body of deceased, the Investigation Officer had examined the witnesses. Rukhsana (PW2) had informed that on 18.9.1991 at about 7-8 p.m. the appellants came to her house and took the deceased with them. On interrogation the appellants accepted their guilt under section 27 of the Evidence Act and a dagger each was recovered from them. Some injuries were also found on appellant Asharam at his medico legal examination co-relating with the tim of crime. After due investigation, a charge-sheet was filed before the JMFC Raisen, who committed the case to the Court of Sessions, Raisen and ultimately it was transferred to the First Additional Sessions Judge, Raisen Camp at Begumganj. 4. The appellants abjured their guilt. They did not take any specific plea in defence and therefore no defence evidence was adduced. 5. The Additional Sessions Judge, Begumganj after considering the prosecution evidence convicted and sentenced the appellants as mentioned above. 6. 4. The appellants abjured their guilt. They did not take any specific plea in defence and therefore no defence evidence was adduced. 5. The Additional Sessions Judge, Begumganj after considering the prosecution evidence convicted and sentenced the appellants as mentioned above. 6. We have heard the learned counsel for the parties. 7. In the present case there is no ocular evidence and the case depends upon circumstantial evidence. In such cases, each of the circumstances against the appellants are to be considered one by one. In the present case the first circumstance is whether the death of the deceased was homicidal or not. According to the witnesses Shafique Ahmed (PW1) and Mukhtar Ahmed (PW4) the dead body of the deceased was found in the field of one Satyanarayan Dubey. A foul smell was emitting from the dead body. Dr. B.D.Khare, who did the post-mortem on the body of the deceased gave his report Ex.P-5 wherein he opined that the deceased died due to hemorrhage caused by various injuries, and therefore according to him, the death was homicidal in nature. Though Dr. Khare had also preserved the viscera of the deceased for its examination, but looking to his post-mortem report, different injuries specially injuries No.1 and 2 which found on the neck and back of the deceased, were responsible for a heavy hemorrhage. The description of those injuries is as under : (i) Lacerated wound on the left side of the neck extending from 1½” lateral to the midline anterior aspect below the left ear, obliquely placed 4”x1½” bone deep. Wound was full of maggots. (ii) Lacerated wound on the right side of the chest extending from below right intra scapular region upto 2” lateral to right border (lower) of the sternum. 11”x2” bone deep, obliquely placed. Wound was full of maggots. 8. The dead body was found in an open field and the injuries were of such nature that they could not be caused by the deceased himself and there was no possibility of any accident so that the deceased would have sustained such injuries and could not move from the field. For such circumstance, if the opinion of Dr. Khare is added, then though he preserved the viscera of the deceased for its analysis, the death of the deceased is established to be homicidal one. It cannot be suicidal or accidental. 9. For such circumstance, if the opinion of Dr. Khare is added, then though he preserved the viscera of the deceased for its analysis, the death of the deceased is established to be homicidal one. It cannot be suicidal or accidental. 9. The prosecution has also alleged that the weapon of offence was recovered from each of the appellants. However, it appears that the Investigation Officer of the case could not be examined before the trial Court. Mohd. Shafique (PW11), who was the witness of seizure, has turned hostile. No FSL report was filed before the trial Court relating to the seized daggers, and therefore, the prosecution could not prove beyond doubt that any weapon of offence was seized. Also it could not be established that any blood stain was found on such weapons. No clothes of the appellants having any blood stains were recovered. 10. It was submitted by the learned counsel for the State that the appellants had motive to kill the deceased. This submission is quoted on the statement made by witness Abrar Ahmed (PW8), brother of the deceased. Abrar Ahmed has stated that 15 days prior to the date of incident, a quarrel took place between his deceased brother Mushtaque Ahmed and the appellants. However, in para 5 of his cross-examination, he has admitted that appellant Afsar Khan was friend of deceased Mushtaque Ahmed and he was a frequent visitor to his house. He did not tell the reason of quarrel between the appellants and the deceased in his case diary statement. On the other hand, Rukhsana (PW-2), sister of the deceased and Sagira Bi (PW3), mother of the deceased have stated that the relations of the appellants with deceased were cordial. These two witnesses did not say anything about the enmity between the appellants and deceased. According to the prosecution story, the deceased went with appellant Asharam for an urgent work. If the deceased would not have cordial relations with Asharam, then there was no possibility that he would have gone with him. Under these circumstances, the prosecution could not prove that the appellants had any motive to kill deceased. 11. Dr. M.G. Rampuri (PW7) has proved the MLC report Ex.P-4 relating to examination of appellant Asharam on 26.9.1991. He found a healed incised wound caused to appellant Asharam on his right wrist and right little finger. According to Dr. Under these circumstances, the prosecution could not prove that the appellants had any motive to kill deceased. 11. Dr. M.G. Rampuri (PW7) has proved the MLC report Ex.P-4 relating to examination of appellant Asharam on 26.9.1991. He found a healed incised wound caused to appellant Asharam on his right wrist and right little finger. According to Dr. M.G. Rampuri the injury was 7-9 days old and possibility cannot be ruled out that it found to appellant Asharam could have been caused prior to the incident. There was no story told by any witness that any quarrel took place between the deceased and Asharam and appellant sustained such injuries in the quarrel, and therefore by proof of MLC report Ex.P-4, no circumstance was created against Ashram. 12. According to the prosecution, the entire case was dependent upon the sole circumstance i.e. the fact of last seen. In this connection, witnesses Sagira Bi (PW3), Mukhtar Ahmed (PW4) and Abrar Ahmed (PW8) are not the witnesses who had seen the appellants with the deceased. Their testimony depends on the information given by Rukhsana (PW2), sister of the deceased, and therefore the evidence of these witnesses falls in the category of hearsay evidence. 13. Rukhsana (PW2) has stated that on Wednesday at about 7-8 p.m. her deceased brother was present in the house. He was making the bundles of bidis, whereas she was rolling the bidis. At that time Asharam came to their house along with Afsar Khan. Some talk took place between them in the house and thereafter deceased took a sum of Rs.20/- from her and went away with the appellants. Witness Rukhsana has further stated that her father was not in the house at that time. He had already left for Bharkachha. Her father had returned at about 9:00 p.m. in the night and she told him that deceased had left the house with appellant Asharam and Afsar Khan. On the next day, Abrar Ahmed, younger brother of Rukhsana was sent to his mother and search was made by the family members, but nothing positive could be found. After two days body of deceased was found lying in the field of Satyanarayan Dubey. On the next day, Abrar Ahmed, younger brother of Rukhsana was sent to his mother and search was made by the family members, but nothing positive could be found. After two days body of deceased was found lying in the field of Satyanarayan Dubey. If the evidence of witness Rukhsana (PW2) is examined minutely, then it would be apparent from her case diary statement that she did not mention definitely before the police that Afsar Khan was present when talk took place between Asharam and the deceased. She had stated to the police that a companion of Asharam was standing behind a curtain made of bamboo (bans ki tatiyan) in the courtyard of the house and she thought that it was Afsar Khan. Thereafter, she improved her statement in the Court that Afsar Khan also came inside the house and participated in the talks. By such improvement, the testimony of witness Rukhsana (PW2) becomes doubtful. She could not see Afsar Khan at the time when the deceased left with Asharam. She has also admitted that it was dark in the night, and therefore, she could not say if that person, who was standing behind the curtain, was Afsar Khan. Under these circumstances, the evidence of last seen for appellant Afsar Khan goes away. 14. Similarly, for Asharam, she has stated that a talk took place between him and the deceased and thereafter deceased took a sum of Rs.20/- from a box and left the house with Asharam. In the cross-examination she has admitted that she did not state before the police that the deceased took a sum of Rs.20/- from the box and went along with Asharam. In her case diary statement Ex.D-1, witness Rukhsana (PW2) had stated that deceased went out of the house to talk with Asharam and after sometime he demanded a sum of Rs.10/- from her and she told him to take that amount from the box. Also when she counted the amount of the box, she found that a sum of Rs.20/- was short in her cash and therefore she thought that deceased went with Asharam after taking that amount from the box. Such statement of witness Rukhsana creates a doubt that when Asharam came to her house, she gave him a sum of Rs.10/- and he left the house. Thereafter the deceased took a sum of Rs.10/- from the box and left the house. Such statement of witness Rukhsana creates a doubt that when Asharam came to her house, she gave him a sum of Rs.10/- and he left the house. Thereafter the deceased took a sum of Rs.10/- from the box and left the house. According to the evidence given by Rukhsana (PW2), it appears that she could not see her brother when he left his house, and, therefore, her evidence depends upon the suspicion that deceased went with Asharam. If deceased met with Asharam and Asharam left the house and after sometime deceased left his house, then the fact of last seen against Asharam also goes away. 15. It is strange that even after two days of the deceased remaining missing, no FIR or missing report was lodged. The incident of missing took place on 18.9.1991 and the dead body of the deceased was recovered on 20.9.1991. After recovery of the dead body, the witnesses kept silent fora pretty long time. Rukhsana (PW2) gave her statement about the factum of last seen on 25.9.1991 i.e. five days after recovery of the body, and therefore the possibility may not be ruled out that she has given her statement about the fact of last seen against Asharam on the basis of some suspicion otherwise it was not for her to keep silent for five days after recovery of body of the deceased. Witnesses Abrar Ahmed, Sagira Bi and Mukhtar Ahmed etc. have corroborated the information given by witness Rukhsana (PW2), but all these witnesses are relatives of the deceased, and that information was not given within seven days of disappearance of deceased to any independent person like Village Kotwar or Sarpanch. Under these circumstances, the prosecution could not prove beyond doubt that actually the deceased went along with Asharam. 16. The learned senior counsel for appellant Afsar Khan has submitted that such type of evidence cannot be relied upon for conviction. Under these circumstances, the prosecution could not prove beyond doubt that actually the deceased went along with Asharam. 16. The learned senior counsel for appellant Afsar Khan has submitted that such type of evidence cannot be relied upon for conviction. In this connection, reliance was placed on the judgment of Hon'ble the apex Court in the case of Ramreddy Rajesh Khanna Reddy v. State of Andhra Pradesh [(2006)3 SCC (Cri.) 512], in which it is held that the last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and the point of time when 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 and in such cases Courts should seek some corroboration. In the case of Jaswant Gir v. State of Punjab [ (2005)12 SCC 438 ]. Hon'ble the apex Court has held that in absence of other links in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of “last seen together” evidence even if version of the prosecution witness in this regard is believed. Also in the case of Subhash Chand v. State of Rajasthan [ (2002)1 SCC 702 ]. Hon'ble the apex Court has held that conviction should not be based upon the suspicion only. 17. In the present case it is highly doubtful from the evidence of witness Rukhsana (PW2) that Afsar Khan had visited the house of the deceased along with Asharam. Also, it is not proved beyond doubt that the deceased went with Asharam after a meeting took place between them. If it is presumed that deceased left his house along with Asharam, then there is no other circumstantial evidence to corroborate the prosecution story. No seizure of weapon could be proved by the prosecution. It was not proved that any blood stain was found on weapons seized. There was no motive for the appellants to kill the deceased. If the deceased left with Asharam on 18.9.1991, then by such fact alone it cannot be said that he was killed by Asharam. No seizure of weapon could be proved by the prosecution. It was not proved that any blood stain was found on weapons seized. There was no motive for the appellants to kill the deceased. If the deceased left with Asharam on 18.9.1991, then by such fact alone it cannot be said that he was killed by Asharam. In the light of judgment of Hon'ble the apex Court in the case of Jaswat Gir (supra), other links in the chain of circumstantial evidence are not only missing, but the absence of motive negates the sole link of chain of circumstantial evidence that Asharam was seen with the deceased soon before the incident. Under these circumstances, there is no evidence against Afsar Khan. Asharam also cannot be convicted on the mere basis of mere fact that he was the person who met deceased soon before his death. The chain of circumstantial evidence is broken and doubt is created in favour of the appellants Afsar Khan and Asharam. Under these circumstances, benefit of doubt is to be given to them. The learned Additional Sessions Judge has committed an error of law in convicting the appellants of offence punishable under section 302/34 of IPC. 18. On the basis of the aforesaid discussion, both the criminal appeals preferred by the appellants are hereby allowed. They are acquitted from all the charges appended against them by giving them benefit of doubt. .............