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2015 DIGILAW 477 (UTT)

SADAB ALI ANSARI v. STATE OF UTTARAKHAND

2015-09-29

SERVESH KUMAR GUPTA, SUDHANSHU DHULIA

body2015
JUDGMENT : Hon’ble Sudhanshu Dhulia, J. 1. This criminal appeal arises out of the judgment and order dated 07.03.2014 passed by the learned Sessions Judge, Chamoli in Session Trial No. 10 of 2009, State Vs Sadab Ali Ansari whereby the accused/appellant has been convicted and sentenced for life imprisonment and a fine of Rs. 10,000/- under Section 302 of I.P.C. and further sentenced for ten years R.I. and fine of Rs. 10,000/- under Section 364 of I.P.C., in addition to a sentence for three years R.I. and fine of Rs. 5,000/- under Section 201 of I.P.C. 2. The crime was allegedly committed on 23.02.2009 at Chamoli, in Uttarakhand, which is a hill town, en route to the “Badrinath” shrine. As per the First Information Report lodged by the complainant – Subodh Agarwal on 23.02.2009, (P.W.1, who has a shop in the main market at Chamoli) states that he noticed at about noon that his two years old daughter was missing. He tried to search for her but in vain and later that evening he reported the matter to the police that his two years old daughter is missing since noon. The body of his daughter was discovered a week later on 02.03.2009 from the cremation grounds at Chamoli. The dead body was wrapped inside a bag, and discovered by sheer chance by a villager who had gone to the ground to collect fodder for his cattles. 3. The inquest report was prepared on 02.03.2009 at about 05:00 p.m. which shows that the place where the body was recovered is about half-kilometer away from the police station, and is a cremation ground. The body was in a “Khakhi” bag, which was lying behind wild bushes on the ground. The postmortem was conducted on 02.03.2009 at 07:00 p.m. at District Hospital Gopeshwar, Chamoli. The report shows that there were maggots present on the body, the face was discoloured and had turned black. There were multiple abrasions on anteromedian surface of right thigh, which were reddish-brown in colour. Multiple abrasions were also present on the back side of her left thigh, as well as on lower back and buttocks, which were reddish-brown in colour. Post mortem report further states that lacerated wound were on the left parietal region, size about 4 X 2 cm, bone deep and left parietal bone was fractured. Multiple abrasions were also present on the back side of her left thigh, as well as on lower back and buttocks, which were reddish-brown in colour. Post mortem report further states that lacerated wound were on the left parietal region, size about 4 X 2 cm, bone deep and left parietal bone was fractured. The medical opinion states that “the cause of death is due to neurogenic shock, as a result of cervical cord injury done to A.M. cervical vertebrae fracture.” C-1 and C-2 vertebrae were broken. 4. The police investigated the matter and arrested the accused/appellant on 06.03.2009. The accused/appellant allegedly confessed his guilt before the police, that he has committed the crime. He also speaks about his motive for having committed this crime, to which we will revert in a while. 5. On the pointing out of the accused the “Payal” and “Chappal” of the deceased were later recovered from the shop’s godown of the accused. The police hence filed its charge-sheet in the court under Sections 302/364/201 of I.P.C. The learned Magistrate committed the case to the court of sessions for trial and the learned Sessions Judge, after hearing the parties, framed charges under Sections 302/364/201 of I.P.C. against the accused/appellants on 18.07.2009. 6. The prosecution in order to prove its case produced as many as twelve witnesses. These were Subodh Agarwal (P.W.1) –complainant/father of the child, Avtar Singh (P.W.2) - the owner of the bag in which the body of the deceased was discovered, Balwant Lal (P.W.3), Laxmi Narayan (P.W.4), Furkan (P.W.5), Shoor Singh Negi (P.W.6), Prabal Singh Negi (P.W.7), Shanti Godiyal (P.W.8), Dr. V.P. Singh (P.W.9) – Doctor who conducted the autopsy, Birendra Singh (P.W.10), Jawahar Singh (P.W.10), Nakli Singh (P.W.11) – first Investigation Officer and Mr. Anil Joshi (P.W.12) – second Investigating Officer. Apart from this other evidences were also presented before the trial court. The trial court ultimately convicted the appellant and sentenced him under the provisions, already referred above. 7. The entire case of the prosecution is based on circumstantial evidence. There is no eyewitness or a direct witness to the alleged crime. The most important witness of the prosecution is Mr. Avtar Singh (P.W.2), who is an ex-serviceman residing in a village at Chamoli. He runs a small shop, which is few kilometers away from the main bazaar, at Chamoli. There is no eyewitness or a direct witness to the alleged crime. The most important witness of the prosecution is Mr. Avtar Singh (P.W.2), who is an ex-serviceman residing in a village at Chamoli. He runs a small shop, which is few kilometers away from the main bazaar, at Chamoli. The deceased child, as we have noticed, was recovered from a bag, which was lying in the cremation ground. This bag belongs to PW2 who is said to have left this bag at the shop of the accused/appellant on 31.01.2009, few weeks prior to the incident. The name of PW2 was written on this bag in white paint. He recognized the bag during trial and has also given a few other identifications of the bag, in order to prove that the bag belongs to him. This bag naturally is hence an important piece of evidence for the prosecution, and P.W.2 their star witness. 8. In his examination-in-chief P.W.2 narrates that he goes for a periodic visit to Chamoli bazaar to collect consumable items for his own small shop. On 31.01.2009 he had gone to Chamoli Bazaar for that reason and had left his bag at the shop of the accused/appellant. By the time he returned to collect his bag, the shop was closed. A few days later he met the appellant and asked for his bag and was promised that it will be returned soon. Sometime later the Investigating Officer came to his village, looking for the owner of the bag, which was identified by PW2. 9. The bag and PW2 are crucial for the prosecution. Apart from the bag, what links the accused to the crime, as per the prosecution is the recovery of “Payal” and “Chappal” of the deceased which is recovered from the shop of the accused/appellant on 06.03.2009 from the pointing out of the accused/appellant and hence as per the prosecution, would be admissible in evidence under Section 27 of the Indian Evidence Act. The entire case of the prosecution, hence rests on these important pieces of evidences. First is the bag and second is the testimony of P.W.2 and third is the recovery of “Payal” and “Chappal” of the deceased. 10. It would be trite to repeat the well settled paradigm in a case of circumstantial evidence. Though conviction can be based on circumstantial evidence, yet such a case must meet some absolutely essential criterias. First is the bag and second is the testimony of P.W.2 and third is the recovery of “Payal” and “Chappal” of the deceased. 10. It would be trite to repeat the well settled paradigm in a case of circumstantial evidence. Though conviction can be based on circumstantial evidence, yet such a case must meet some absolutely essential criterias. The principles laid down by the Hon’ble Apex Court in the case of Hanumant Govind Nargundkar & another vs. State of Madhya Pradesh reported in AIR 1952 SC 343 are essential for the appreciation of evidence in a case of circumstantial evidence, such as the one at hand. It would be worthwhile to refer to this important and frequently referred judgment, which states as under:- “It is well to remember that in case where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstance should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 11. Firstly, the circumstances from which the inference of guilt is to be established must be firmly established. These circumstances must definitely point towards the guilt of the accused. All the circumstances taking together should form a complete chain from which there is no escape from the fact that it is only the accused who has committed the crime and none else! 12. The question, therefore, is does the circumstantial evidence placed by the prosecution in the present case, meet the above conditions? We have already examined the examination-in-chief as well as the cross examination of PW2. PW1-Subodh Agarwal is the father of the deceased. 23.02.2009 was Shivratri. At about 10.00 a.m, he opened his shop at Chamoli. On that day his two year old daughter had also accompanied him to the shop. We have already examined the examination-in-chief as well as the cross examination of PW2. PW1-Subodh Agarwal is the father of the deceased. 23.02.2009 was Shivratri. At about 10.00 a.m, he opened his shop at Chamoli. On that day his two year old daughter had also accompanied him to the shop. Right outside the shop there was a stool where she was sitting and nibbling “Kurkure”, which were given to her. He further states that his daughter often used to come with him to his shop. On that fateful day, after sitting outside the shop for sometime she was not to be seen and when he came out of his shop and didn’t find his daughter he went for her search, but in vain. He kept searching for his daughter till evening that day. Later at 5.50 p.m., accompanied by his friend Devendra Goswami he went to the police station and lodged the missing report regarding his daughter. He did not suspect any person till that point of time. Thereafter during the police investigation he told the Investigating Officer, who was Inspector Nakli Singh (PW-11), that he suspects Sadab Ali Ansari (present appellant) and his brother Katib Ali in the matter. The reason being that in 2008 (a year earlier), on the day of “holi” festival Sadab Ali had attacked him with an iron rod, inflicting injuries on him and consequently he had also lodged the First Information Report against him under Section 307 of I.P.C. As a consequence, both the brothers i.e. Katib Ali and Sadab Ali were arrested and remained in jail for about 22 to 25 days. P.W.1 hence points towards a prior enmity and though in the earlier case (under Section 307 I.P.C.) there was some sort of compromise between the parties, yet the two brothers nursed a grudge against him, he states. He further states that after telling the Investigation Officer -Nakli Singh about his suspicion, Mr. Nakli Singh had called the two brothers (Sadab Ali and Katib Ali) at the police station the next day. He too reached unannounced at the police station at the same time and saw Nakli Singh having tea with the two brothers. All three of them were surprised to see PW1 at the police station. Nakli Singh had called the two brothers (Sadab Ali and Katib Ali) at the police station the next day. He too reached unannounced at the police station at the same time and saw Nakli Singh having tea with the two brothers. All three of them were surprised to see PW1 at the police station. The two brothers left the police station immediately and he was assured by Nakli Singh that his daughter is safe and she will be recovered soon, all he needs to do is to tell him the names of other persons he suspects. Nakli Singh then gave a few names of his acquaintances at Chamoli. A suggestion here seems to have been made by PW1 that he was not satisfied with the investigation of PW11. Nakli Singh. 13. He then says that on 02.03.2009 he was sitting with his father-in-law and Inspector Nakli Singh in his shop when he received a phone from his house and was informed that three boys are waiting for him at his residence. When he reached his house, the three boys, out of which he knew at least two, asked him to accompany them to the cremation ground, where they have discovered a bag, which has a dead body of a child. When he enquired as to where and how have they discovered this bag, he was told by one of them (i.e. Babloo Lal), that his wife and he used to collect grass from the cremation ground and while they were doing just that in the morning, they discovered a bag which was open at one end and they could see a Pink colour sweater and the face of a child. They suspected it to be the child of PW1 and hence they had come to inform him. 14. Immediately they reached the cremation ground along with Nakli Singh and other policemen. Necessary work was done, including inquest report was prepared. P.W.1 was shown the bag which was exhibited Ka-9, which had the dead body of his daughter, which he recognized. 15. In his examination-in-chief he further says that he not only suspects Sadab Ali, but his brother and bhabhi as well, as Sadab Ali could not have committed this crime alone and the police were protecting the brother and the bhabhi of the accused. He further said that Sadab Ali had admitted that when Km. 15. In his examination-in-chief he further says that he not only suspects Sadab Ali, but his brother and bhabhi as well, as Sadab Ali could not have committed this crime alone and the police were protecting the brother and the bhabhi of the accused. He further said that Sadab Ali had admitted that when Km. Diya reached his shop calling him Chacha and asked him for a toy, something came to his mind and he took the child to his godown and gave a jerk on her neck, due to which she was killed instantly. He later wrapped the body, put it in the bag and threw it on the cremation ground on 09.03.2009. During the course of investigation, the Investigating Officer was changed and the new Investigating Officer Mr. Anil Joshi informed him that the accused Sadab Ali has conferred that “Payal” and “Chappal” of the deceased are in the godown of his shop and since recovery is to be made he should come as a witness which he did. In his cross-examination he says that he is in Chamoli since 1970. Chamoli is not a big market and the population of the Chamoli would not be more than a thousand. Sadab Ali along with his brother also run a shop in the same market since 1995. 16. PW-3 is one Balwant Singh, who had discovered bag in the graveyard and had informed PW-1, father of the deceased girl, about the bag and the body of a child inside the bag. To the extent, he was a witness to the recovery, he has supported the case of the prosecution. Similarly, PW5 is a witness to the inquest report and to that extent he too has supported the case of the prosecution. 17. PW-6 is Head Constable - Surpal Singh Negi, who was on duty at the Police Station and had written the missing report lodged by PW-1 at 5:30 pm. 18. PW-7, Prabal Singh Negi, is the witness to the recovery memo prepared by the police of the Chappal and the Payal of the deceased – Km. Diya. In his examination-in-chief he states that he had heard about the fact that the daughter of P.W.-1 was killed and consequently he had gone to PW-1 house to give his condolence. There, he met three or four policemen who asked him to sign certain papers which he signed. Diya. In his examination-in-chief he states that he had heard about the fact that the daughter of P.W.-1 was killed and consequently he had gone to PW-1 house to give his condolence. There, he met three or four policemen who asked him to sign certain papers which he signed. According to him, the Chappal and the Payal were shown to him in a bag at the house of Subodh Aggarwal only. He recognized the Payal as well as the Chappal when he was shown the exhibits in the court but categorically said that this was shown to him at the residence of PW1 and not at the godown where they were allegedly recovered by the police. 19. PW8, Shanti Godiyal, who was the member of the police team, along with Nakli Singh, SHO, Chamoli who had again gone to the graveyard where the bag was recovered. It was she who prepared the inquest report. Similarly, PW10, Jawahar Singh was also police personnel at the relevant time, he was witness to the inquest. To the 1extent, there are limited witnesses they have supported the case of the prosecution. 20. PW11 and PW12 are the two Investigating Officers. PW11-Nakli Singh who was initially the Investigating Officer of the case but after the discovery of the bag the investigation shifted and SHO Anil Joshi was appointed the Investigating Officer who after completion of the enquiry filed the charge sheet which fully supported the case of the prosecution. Dr. V.P. Singh-PW9 is another important witness as he had conducted the autopsy on the deceased on 02.03.2009. In his deposition, he has said that there was no rigor mortis, the left eye was open and the right eye was depressed in fact there was no right eye as it was eaten away by maggots. There were maggots present all over the body. In his opinion, the death of the deceased was due to Nerogenic sock which was caused due to the injury on the cervical cord. He clearly says that in case head of two years old child cord is given a strong jerk C-1 and C-2 vertebrae can be broken. 21. As we have clearly seen this case is of circumstantial evidence where a two years old innocent child has been brutally killed. It is a crime most foul. He clearly says that in case head of two years old child cord is given a strong jerk C-1 and C-2 vertebrae can be broken. 21. As we have clearly seen this case is of circumstantial evidence where a two years old innocent child has been brutally killed. It is a crime most foul. But then fouler the crime, higher the proof, is the principle which must be followed in our adversarial system, and suspicion no matter how strong can never take the place of proof! All the circumstances from which the guilt of the accused is being drawn must be fully established. Not only should these circumstances be firmly established but they should be conclusive and certain with only one hypothesis i.e. the guilt of the accused. In other words the “circumstances” should be incapable of drawing any other conclusion save the guilt of the accused. 22. Since we are dealing with a crime which is gruesome and repulsive, we have to be even more cautious in our appreciation of evidence. The Hon’ble Apex Court while dealing with a similar situation as the case at hand cautioned as under:- “Undoubtedly, this case demonstrates the actions of a depraved soul. The manner in which the crime has been committed in this case, demonstrates the depths to which the human spirit/soul can sink. But no matter how diabolical the crime, the burden remains on the prosecution to prove the guilt of the accused. Given the tendency of human beings to become emotional and subjective when faced with crimes of depravity, the courts have to be extra cautious not to be swayed by strong sentiments of repulsion and disgust. It is in such cases that the court has to be on its guard and to ensure that the conclusions reached by it are not influenced by emotion, but are based on the evidence produced in the court. Suspicion no matter how strong cannot, and should not be permitted to take the place of proof. Therefore, in such cases, the courts are to ensure a cautious and balanced appraisal of the intrinsic value of the evidence produced in court.” 23. Suspicion no matter how strong cannot, and should not be permitted to take the place of proof. Therefore, in such cases, the courts are to ensure a cautious and balanced appraisal of the intrinsic value of the evidence produced in court.” 23. The circumstantial evidence on the basis of which appellant/accused has been convicted are primarily three:- first the bag which has a link towards the accused, second is the discovery of “Payal” and “Chappal” from the pointing out of the accused and to the extent which may be read evidence under Section 27 of the Indian Evidence Act and third the post mortem report and deposition of the PW9 Dr. V.P. Singh who has said that the death can be caused due to Neroganic sock which can be caused due to the injury on the cervical cord. The fourth is the deposition of PW2-Avtar Singh the owner of the bag. 24. Is this evidence sufficient and are the circumstances proved? The recovery of “Payal” as well as “Chappal” from the godown of the deceased does not inspire confidence inasmuch as, it has come in the evidence of PW1-Subodh Aggarwal that the landlord of the accused is his friend and after the arrest of the accused he had vacated the property and handed over its possession to the landlord. Under these circumstances from the date the premises was handed over to the landlord, the accused had no access to the godown and therefore the recovery being made from the godown becomes highly doubtful, particularly considering the deposition of the PW7 Prabal Singh Negi who is the witness to the recovery memo and says that he had not signed the memo at the shop or the godown but at the residence of PW1 i.e. Subodh Aggarwal. 25. As far as, linkage of the bag is concerned, undoubtedly it is the most important piece of evidence for the prosecution but here again there are discrepancies. It has not been explained by the prosecution as to why did PW2-Avtar Singh leave his bag at the shop of the accused where he was not doing any business, as he has clearly stated that he used to buy all the articles for his shop from another shop at Chamoli market, called “Meharban Agency”. It has not been explained by the prosecution as to why did PW2-Avtar Singh leave his bag at the shop of the accused where he was not doing any business, as he has clearly stated that he used to buy all the articles for his shop from another shop at Chamoli market, called “Meharban Agency”. The deceased was discovered in the bag, yet the inquest report does not show that the name of PW2 Avtar Singh was written on the bag and there is no such description of the name of Avtar Singh written on the bag as it has clearly come in the evidence that Avtar Singh was written by white paint on the bag. 26. We have gone through the evidence of the prosecution and having pondered over it long and hard we conclude that these circumstances themselves firstly are not factually established and proved. Not only is the linking of the bag with the PW2 is doubtful but the recovery of “Chappal” and “Payal” from the godown of the accused leaves much to be desired. The name of PW2 Avtar Singh was written in white paint on the bag has never been noticed in the inquest report, which is silent about this. It is true that an inquest report is primarily to ascertain that the death is unnatural and other broad circumstances and it is not a substantive piece of evidence, yet the bag itself at best is merely a link to the chain. It is not the chain. Why was this bag left only at the shop of the accused has not been satisfactorily explained. As far as the recovery of “Payal” and “Chappal” of the deceased from the godown are concerned it was made from the godown of the shop which was on that day not in the possession of the accused but with the landlord, namely, Anurag Verma, who is a friend of the complainant. The possession of the shop as well as the godown was taken away from the accused on 06.03.2009 when he was arrested, and the keys of the shop were with the owner – Anurag Verma since then. Further the police had taken the keys of this shop, from where the recovery was made, from the owner of the shop Anurag Verma on 09.03.2009. This has come in the cross examination of P.W.1 – Subodh Agarwal at para 37. Further the police had taken the keys of this shop, from where the recovery was made, from the owner of the shop Anurag Verma on 09.03.2009. This has come in the cross examination of P.W.1 – Subodh Agarwal at para 37. Further PW7 who is shown to be a witness of this recovery in his deposition categorically states that he signed the recovery memo at the residence of the complainant PW1 and not at the godown of the shop. This makes the recovery doubtful. 27. The discovery of the bag is in any case an incriminating piece of evidence against the accused. The circumstances under which the bag was left in the shop of the accused has already been stated above, hence some reasonable explanation must come forward from the accused, regarding this bag. This question, about the identity of the bag and it being left by PW-2 in the shop of the accused was put to the accused under Section 313 CrPC. To this question the accused has specifically replied that he does not know PW-2 Avtar Singh and that he had never left the bag at his shop. Again we find that the prosecution has not placed any evidence before the Court to falsify this explanation of the accused that the accused is not known to him. 28. The main reason for conviction of the present appellant under Section 302 of I.P.C. by the learned Sessions Judge is given in para 31 of the judgment, where the learned Judge finds that the statement of Dr. V.P. Singh (P.W.9) i.e. the Doctor (who had conducted the autopsy) and the “confessional statement” of the accused under Section 161 of Cr.P.C. totally match. What is this statement? The Doctor in his deposition had said that C-1 and C2 bone of the deceased were broken and this was the cause of her death. The accused/appellant in his statement under Section 161 of Cr.P.C. to the police is alleged to have said that on that fateful morning of 23.02.2009 the two year old daughter of P.W.1 Subodh Agarwal had came outside his shop and asked him of “a Khilona” (toy). Seeing the daughter of his sworn enemy (P.W.1) outside his shop, he took her inside his shop, towards the interior of the store of the shop and there he throttled her to death. Seeing the daughter of his sworn enemy (P.W.1) outside his shop, he took her inside his shop, towards the interior of the store of the shop and there he throttled her to death. Later that day he transferred the dead body inside a “bag” which was lying under a stool of his shop. The bag was then thrown by him in the cremation ground. It is this “bag” which has been linked to P.W.2, whose deposition has already been examined. 29. The statement of an accused under Section 161 of Cr.P.C. cannot be read in evidence (Section 25 and 26 of the Indian Evidence Act). Hence relying on this statement as well as the statement of P.W.12 (the investigation officer), who has corroborated that the accused confessed the crime before him during interrogation, is the most glaring anomaly in the trial court’s judgment. 30. In the judgment the trial court while convicting the accused has assigned its reasons that the statement of the Dr. V.P. Singh PW9 that injury caused by the C-1 and C-2 and the so called confessional statement of the accused recorded under Section 161 CrPC (wherein he had allegedly confessed that he had given a jerk to the neck of the child thereby causing her death) are conclusive proof! Linking the medical evidence with the alleged statement of guilt of the accused under Section 161 CrPC in which the trial court found an exact match and hence convicted the accused under Section 302 IPC and a sentence of life imprisonment has been awarded. This could not have been done as the confessional statement of accused to the police under Section 161 CrPC cannot be read in evidence. 31. In the present case, the circumstances are neither overwhelming nor can they be said to be complete so as to exclude the hypothesis of innocence of the accused. It is a case of circumstantial evidence where the chain of circumstances is neither established nor complete, the appellant is at least entitled for the benefit of doubt. 32. The appeal hence succeeds and is hereby allowed. The conviction and sentence imposed on the appellant by the trial court vide order dated 07.03.2014 is hereby set aside. The appellant who is presently in jail shall be released forthwith, unless he is wanted in some other case.