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2015 DIGILAW 1712 (RAJ)

Sabir Ali v. State of Rajasthan

2015-09-24

GOPAL KRISHAN VYAS, VIJAY BISHNOI

body2015
JUDGMENT 1. - This appeal is directed against the judgment dated 03.05.2006 passed by Additional Sessions Judge (Fast Track), Parbatsar (for short 'the trial court' hereinafter) in Sessions Case No.26/2005 (32/2005), whereby the trial court has convicted and sentenced the accused-appellant as under: U/s 302 IPC : Life imprisonment and a fine of Rs. 2000/-, in default of payment of fine, further to undergo two months' simple imprisonment. U/s 201 IPC : Three years' rigorous imprisonment and to pay a fine of Rs. 1000/-, in default of payment of fine, further to undergo one month's simple imprisonment. Both the sentences were ordered to run concurrently. 2. Brief facts, necessary for disposal of the instant appeal, are that PW.2 Firoza Begum w/o Maqbool Chirag filed a written report (Ex.P/3) to the Station House Officer, Police Station, Makrana on 23.06.2005 stating therein that her husband is an Imam by profession and used to perform Namaz-e-Janaza in Kabristan Masjid, Makrana and used to live there. Every day he used to come home for taking meal and thereafter go back to the Masjid. On 31.05.2005 at about 8:30 P.M., her husband after taking meal, went to graveyard and did not return to home for 2-3 days. One day, Bihari Mulla came to her house and informed her that her husband has not been coming to Kabristan Masjid from last 2-3 days. Then she and her brother Khursheed Alam have searched for her husband in all Masjids and Dargahs of Makrana as well as to their relatives up to 23.06.2005 but they have not been able to trace him out. It is further stated that she has heard from the people that her husband was last seen with Haji Badruddin Gesawat, Noor Hasan, Shabbir Ahmed and Nannu Bandia. 3. On receiving the aforesaid report, the police registered a missing person report (Ex.P/13). Later on, on the basis of confessional statement of accused-appellant, the FIR No.250/2005 (Ex.P/32) was registered at Police Station, Makrana on 27.06.2005 for the offences punishable under sections 302, 302/34 IPC by PW.8 Jai Singh, wherein it is stated that in relation to the missing person report (Ex.P/13) lodged by PW.2 Firoza Begum, when PW.8 Jai Singh interrogated the accused-appellant Sabir Ali after brought him to the Police Station, Makrana then during the course of investigation, he has confessed that he has murdered Maqbool Chirag by burring him in a pit. He has stated that Badrudin had told him that people are saying that in his house, treassure belonging to his forefathers is buried and if he wants the said treasure, he has to sacrifice himself, then how he would use the same. The accused-appellant asked him that any other person can be sacrificed in his place. Badrudin had asked him that whether he can manage for any other person for sacrificing, then he agreed that he can manage it. He has further stated that on the fateful day, he asked the deceased to come to Badrudin's plot for the purpose of retrieving the treasure and thereafter in the morning of 02.06.2005 both of them started digging a pit and when the pit was dug up to the depth, a standing man cannot be seen, the deceased was in the pit; accused-appellant passed on the powder of some sleeping pills to the deceased and asked him to consume it so that the bad souls would not trouble him. After consuming the said powder, when the deceased went into deep sleep, he buried him in that pit and thereafter for 6 days he read 'Wazifa' over there but when the neighbours objected to it then he went to Deedwana. 4. After investigation, the police has filed charge-sheet against the accused-appellant along with four other persons for the offences punishable under sections 302, 120-B and 201 IPC. The trial court has also framed charges for the aforesaid offences against the accused-appellant and other accused-persons. The prosecution has got examined as many 37 witnesses and also exhibited certain documents and articles. The statements of accused-appellant and other accused-persons were recorded under section 313 CrPC. The learned trial court, after hearing the Additional Public Prosecutor and the counsels for the accused-persons as well as the complainant has acquitted the other accused-persons viz. Nannu Bandia, Badrudin and Noor Hasan, however, convicted the accused-appellant for the offence punishable under sections 302 and 201 IPC and sentenced him accordingly. 5. Learned counsel for the accused-appellant has argued that the trial court has convicted the accused-appellant for the offence punishable under sections 302 and 201 IPC on two counts, first is that the deceased was last seen with the accused-appellant before his murder and second is that the dead body of the deceased was recovered at his instance. 5. Learned counsel for the accused-appellant has argued that the trial court has convicted the accused-appellant for the offence punishable under sections 302 and 201 IPC on two counts, first is that the deceased was last seen with the accused-appellant before his murder and second is that the dead body of the deceased was recovered at his instance. It is submitted that the learned trial court has placed reliance on the statements of PW.12 Anwer Ahmed alias Raju and PW.13 Mohammed Ishaq to hold that the accused-appellant was last seen with the deceased before his murder. Learned counsel for the accused-appellant has argued that both the witnesses PW.12 Anwer Ahmed alias Raju and PW.13 Mohammed Ishaq have been declared hostile and the trial court has grossly erred in placing reliance upon the statements of the said witnesses. It is also argued that even if the evidence of PW.12 and PW.13 is taken as true, it cannot be said that the prosecution has proved beyond reasonable doubt that on the day of the incident, the deceased, before his murder, was last seen with the accused-appellant. It is further argued that there are serious contradictions in the testimonies of PW.12 and PW.13 as both of them have mentioned different places where they had last seen the accused-appellant with the deceased. It is also argued that the above mentioned two witnesses are not reliable but the trial court has grossly erred in placing reliance upon them. 6. Learned counsel for the accused D. appellant has further argued that the trial court has also grossly erred in placing reliance upon Ex.P/61, the alleged information given by the accused-appellant under section 27 of the Indian Evidence Act regarding the dead body of the deceased. It is argued by the learned counsel for the accused-appellant that information given by the accused-appellant under section 27 of the Evidence Act vide Ex.P/61 is said to have been prepared on 28.06.2005, whereas in the complaint filed by PW.8 Jai Singh (Ex.P/31) dated 27.06.2005 the place where the body of the deceased buried has already been disclosed. In such circumstances, it cannot be said that the accused-appellant has given the information regarding the dead body of the deceased for the first time on 28.06.2005 vide Ex.P/61. 7. In such circumstances, it cannot be said that the accused-appellant has given the information regarding the dead body of the deceased for the first time on 28.06.2005 vide Ex.P/61. 7. It is contended that the trial court has not relied upon the extra-judicial confession made by the accused-appellant vide Ex.P/31 before PW.8 Jai Singh because the same was before a police officer in police custody and when the same has not been relied, the trial court has grossly erred in placing the reliance upon the information (Ex.P/61) furnished under section 27 of the Evidence Act against the accused-appellant. 8. Learned counsel for the accused-appellant has, therefore, argued on both the counts i.e. the evidence of last seen and recovery of the dead body at the instance of the accused-appellant, the trial court has erred in convicting the accused-appellant, though there is no cogent and reliable evidence to connect him with the commission of the said offences. 9. Per contra, learned Public Prosecutor has argued that from the evidence of PW.12 Anwer Ahmed alias Raju and PW.13 Mohammed Ishaq, it is proved that the deceased was last seen with the accused-appellant just before the incident and, therefore, the trial has not committed any illegality in placing reliance upon the testimonies of the said witnesses. It is also argued that the dead body of the deceased was recovered at the instance of the accused-appellant, who gave information under section 27 of the Evidence Act and, therefore, the trial court has rightly placed reliance upon the said piece of evidence and has rightly concluded that the prosecution has sufficiently proved the connection of the accused-appellant with the commission of crime. Learned Public Prosecutor has, therefore, argued that there is no force in this appeal and the same is liable to be dismissed. 10. Heard learned counsel for the rival parties and carefully scrutinised the record. 11. The trial court has held the accused-appellant guilty for the offences punishable under sections 302 and 201 IPC while concluding that the accused-appellant was last seen with the deceased soon before the incident and the dead body of the deceased was recovered at his instance, who has voluntarily given the said information to PW.8 Jai Singh under section 27 of the Evidence Act vide Ex.P/61. 12. 12. After carefully reading the statements of PW.12 Anwer Ahmed alias Raju and PW.13 Mohammed Ishaq, we have found that both the witnesses have been declared hostile by the prosecution. PW.12 Anwer Ahmed alias Raju in his statement though has stated that he was known to accused-appellant as he brought his brother for some treatment to the accused-appellant earlier. However, he has clearly stated during the cross-examination by the counsel of one of the accused that he was not sure that on which date he had seen the accused-appellant with the deceased. He has asserted that he is not sure that on which date whether first or second, he had seen the deceased with the accused-appellant and he did not know that what was the day on first or second of that month. 13. PW.13 Mohammed Ishaq in his statement has even not stated that he was known to the accused-appellant prior to the incident and has also said that he had seen the accused-appellant with the deceased on first or second of the month. No specific date has been mentioned by PW.13 on which, he had seen the accused-appellant with the deceased. It is also important to note that during his cross-examination, PW.13 has admitted that the deceased was his 'Samdhi'. 14. In view of the above noted facts, we are not convinced that the evidence of last seen of the accused-appellant with the deceased just before the incident is available on record. Therefore, the prosecution has failed to prove that just before the incident, the accused-appellant was seen with the deceased. We are of the opinion that the trial court has erred in placing reliance upon the testimonies of PW.12 Anwer Ahmed @ Raju and PW.13 Mohammed Ishaq to conclude that just before the incident, the accused-appellant was last seen with the deceased. 15. The trial court has also placed reliance upon Ex.P/61, the information given by the accused-appellant under section 27 of the Evidence Act regarding the dead body of the deceased. It is noticed that the said information was recorded by the police vide Ex.P/16 on 28.06.2005 at 7:15 A.M., however, before the preparation of Ex.P/61, PW.8 Jai Singh had already recorded the confession of the accused-appellant on 27.06.2005 vide Ex.P/31, on the basis of which FIR No.250/2005 was registered at Police Station, Makrana. It is noticed that the said information was recorded by the police vide Ex.P/16 on 28.06.2005 at 7:15 A.M., however, before the preparation of Ex.P/61, PW.8 Jai Singh had already recorded the confession of the accused-appellant on 27.06.2005 vide Ex.P/31, on the basis of which FIR No.250/2005 was registered at Police Station, Makrana. In Ex.P/31, it is mentioned that the accused-appellant has informed PW.8 that he has buried the deceased in the plot of Badrudin. When the place where the deceased was buried, had already been disclosed to PW.8 Jai Singh on 27.06.2005, the information recorded by him under section 27 of the Evidence Act on 28.06.2005 vide Ex.P/61 is doubtful. The Investigating Officer PW.8 Jai Singh was aware about the place where the deceased was buried before recording of the information under section 27 of the Evidence Act given by the accused-appellant, then such information inspires no confidence. 16. So far as the extra-judicial confession of the accused-appellant is concerned, the trial court while deciding the Issue No.6 has clearly held that the said extra-judicial confession is not admissible in evidence because the same was made by the accused-appellant before PW.8 Jai Singh while he was in police custody. When the extrajudicial confession of the accused-appellant was disbelieved by the trial court, wherein the accused-appellant has disclosed the place where he had buried the deceased, later information furnished by him in respect of the very fact is inconsequential and cannot be relied upon. 17. In view of the above circumstances, we are of the opinion that the trial court has erred in placing reliance upon Ex.P/61. 18. In view of the above discussions, we find that the prosecution has failed to prove beyond reasonable doubt that the accused-appellant has committed the offences punishable under sections 302 and 201 IPC as alleged by the prosecution. 19. Resultantly, this criminal appeal is allowed. The judgment dated 03.05.2006 passed by Additional Sessions Judge (Fast Track), Parbatsar is set aside. The accused-appellant Sabir Ali is acquitted from the offence punishable under sections 302 and 201 IPC. He be released forthwith, if not required in any other case. Keeping in view the provisions of section 437A CrPC, the accused-appellant Sabir Ali is directed to forthwith furnish a personal bond in the sum of Rs. The accused-appellant Sabir Ali is acquitted from the offence punishable under sections 302 and 201 IPC. He be released forthwith, if not required in any other case. Keeping in view the provisions of section 437A CrPC, the accused-appellant Sabir Ali is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- along with one surety bond of like amount before the Additional Sessions Judge (Fast Track), Parbatsar, which shall be effective for a period of six months so that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant - Sabir Ali, on receipt of notice thereof, shall appear before Hon'ble Supreme Court.Appeal allowed. *******