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Allahabad High Court · body

2016 DIGILAW 2090 (ALL)

AZAD @ AJJU v. STATE OF U. P.

2016-05-30

PRATYUSH KUMAR, VIKRAM NATH

body2016
JUDGMENT : Hon'ble Pratyush Kumar, J. The above two criminal appeals have been preferred by the appellants assailing the correctness of the judgment and orders dated 30.08.2006 passed by the Additional District and Sessions Judge, Court No.10, Ghaziabad, in Sessions Trial No.1068 of 2001, State vs. Azad and others, arising out of Case Crime No.333 of 2001, under sections 302, 364, 201 IPC, P.S. Murad Nagar, District Ghaziabad, whereby all the accused appellants have been convicted under sections 364/34, 302/34 and 201/34 IPC and sentenced to undergo rigorous imprisonment for 10 years alongwith fine of Rs.2,000/- under sections 364/34 IPC; rigorous imprisonment for life under section 302/34 IPC alongwith fine of Rs.10,000/- and rigorous imprisonment for 3 years under section 201/34 IPC alongwith fine of Rs.1000/- and in default of payment of fine additional imprisonment for 3 months, 6 months and one month respectively. On 19.9.2001 at 4.30 p.m. Yamin son of Bande Khan gave a written report (Ex. Ka-1) written by Rais Ahmad son of Washir Ahamd to the police Station Murad Nagar, District Ghaziabad stating that on 17.09.2001 at about 3.00 p.m. his son Dilshad @ Billu aged about 11 years went missing. His daughter Shabnam informed him that his neighbour Azad @ Ajju son of Ishaq had taken Dilshad alongwith him. The informant searched for him and also made inquiry when he came to know that Ajju alongwith his acquaintance Shabbu @ Shabuddin son of Riyaz and Shahanwaz son of Yunus Ansari residents of Mohalla Kotla, District, Meeurt had allured and enticed away his son and had taken him to their elder brother Shahjad and brother-in-law Wakil, residents of Kotla, District Meerut. The complainant further mentioned that despite all efforts the accused persons did not return his son. He apprehended that some untoward incident might not have taken place with his son, his report might be registered and his son be traced. On this complaint Check FIR was prepared and registered as Case Crime No.333 of 2001 (Ex. Ka-11) by Head Moharrir Jogendra Singh (PW-7) and corresponding entries were made in the General Diary. Two of the named accused Azad @ Ajju and Shabbu alias Shabuddin were arrested and on their pointing out the Investigating Officer recovered the dead-body of Dilshad on 20.09.2001 and a Fard was prepared (Ex. Ka-8). Inquest report was also prepared on the same day (Ex. Two of the named accused Azad @ Ajju and Shabbu alias Shabuddin were arrested and on their pointing out the Investigating Officer recovered the dead-body of Dilshad on 20.09.2001 and a Fard was prepared (Ex. Ka-8). Inquest report was also prepared on the same day (Ex. Ka-2) and the dead-body was sent for post-mortem alogwith relevant police papers. The post-mortem-examination was conducted on the same day i.e. 20.09.2001 at 4.45 p.m. by Dr. K.N. Tiwari, Surgeon at the District Hospital, Meerut (PW-8). The following antemortem injuries were noted in the post-mortem-report- 1. Incised wound 15 cm x 22 cm x bone deep on the right side of face, right ear was found missing, right eye was damaged, bones of face are appearing and the temporal bone of the right side of head was found fractured. 2. Incised wound on the right wrist, there in the wound deep right hand was found missing. In the internal examination, bleeding was found on the head, the dead body was in decayed condition, dead body and stomach was swallowed, foul smell was coming from the dead body and insecticide were present there, cause of death was due to shock and haemorrhage as a result of ante mortem injuries. Body was three days old. The Investigating Officer after completing the investigation submitted the charge sheet (Ex. Ka-10) on 5.10.2001. Before the concerned Magistrate plea was taken regarding juvenility of Shabbu @ Shabuddin. His matter was referred to the Juvenile Justice Board, Agra constituted under Juvenile Justice (Care and Protection of Children) Act, 2000 where he was declared juvenile and as such his trial was reported and sent for inquiry by the Juvenile Justice Board. With regard to other two accused i.e. Azad alias Ajju and Shahanwaz the trial Judge framed the charges on 20.04.2002 and read them out to the accused, which they denied and claimed to be tried. With regard to other two accused i.e. Azad alias Ajju and Shahanwaz the trial Judge framed the charges on 20.04.2002 and read them out to the accused, which they denied and claimed to be tried. Prosecution examined the informant Yamin as PW-1, Shabnam daughter of Yamin as PW-2, witness of last seen, Saleem son of Rashid as PW-3 also witness of last seen, Hazi Yusuf son of Hazi Subrati as PW-4 witness of the recovery of the dead-body, Sub Inspector Hem Singh PW-5 who had prepared the inquest and other police papers and had proved the same, Sub Inspector O.P. Singh Chauhan as PW-6 the Investigating Officer and who had also submitted the charge sheet and Head Constable Jogendra Singh as PW-7, who had prepared the Check FIR and had made entry in the General Diary, Dr. K.N. Tiwari as PW-8 Surgeon who had conducted the autopsy on the dead-body of Dilshad and had proved the post-mortem-report Both the accused were examined under section 313 Cr.P.C. Azad @ Ajju has stated that he has been falsely implicated on account of enmity and that he was arrested on 17.09.2001 from Delhi at 2.00 p.m. Accused Shahanwaz has stated that he has also been implicated on account of enmity, that Azad had falsely taken his name as he was acquainted to him through his sister. The defence examined Mohd. Sayeed son of Zamal Uddin as DW-1, who has stated that on 17.09.2001 Azad was with him at Ramleela Ground, Delhi and he was taken by the police of the Police Station, Murad Nagar on the pretext of some inquiry. The trial Judge after considering the material evidence on record convicted the two appellants Azad @ Ajju and Shahnawaz and sentenced them, details whereof are mentioned in the opening paragraph of this judgment. We have heard Sri Arvind Kumar-II, Advocate appointed by High Court Legal Services Authority to defend accused appellant Azad @ Ajju and also as Amicus Curiae appointed by us to assist the Court and defend accused appellant Shahnawaz and Sri P.S. Yadav, learned A.G.A. for the State and have perused the record. We have heard Sri Arvind Kumar-II, Advocate appointed by High Court Legal Services Authority to defend accused appellant Azad @ Ajju and also as Amicus Curiae appointed by us to assist the Court and defend accused appellant Shahnawaz and Sri P.S. Yadav, learned A.G.A. for the State and have perused the record. Learned Amicus Curiae for the appellant has submitted that as no one had seen the commission of the crime and the present case being based on circumstantial evidence, require that the prosecution should prove all the links of the chain of events so as to indicate that only conclusion be that the crime was committed by the accused and no other hypothesis is possible. According to the Amicus Curiae the prosecution first failed to prove the motive, and secondly apart from the facts that there was a weak evidence regarding last seen there were no evidence to prove other links of the chain of events, which the prosecution must prove so as to prove establish that the appellants are guilty of the charges. He has also submitted that the Juvenile Justice Board, Agra vide order dated 2.7.2013 had declared the appellant Azad @ Ajju as juvenile after, due inquiry and obtaining the report of the Medical Board. Copy of the said order has been filed alongwith the third bail application. The other relevant documents have also been filed alongwith the third bail application. He has further submitted that even if the Court comes to the conclusion that the conviction of Azad @ Ajju could be maintained, he would be entitled to be set at liberty in as much as he has already spent more than 11 years in jail whereas under Juvenile Justice (Care and Protection of Children) Act, 2000 a juvenile could not be kept in detention for more than 3 years. In so far as the appellant Shahnawaz is concerned the learned Amicus Curiae has submitted that the prosecution has not been able to lead any evidence which could hold him guilty. Even the recovery has not been made at the pointing out of Shahnawaz. It was only on the pointing out of the accused Azad @ Ajju and Shabbu @ Shabuddin. According to the learned Amicus Curiae appellant Shahnwaz is already on bail and would be entitled to be acquitted. Even the recovery has not been made at the pointing out of Shahnawaz. It was only on the pointing out of the accused Azad @ Ajju and Shabbu @ Shabuddin. According to the learned Amicus Curiae appellant Shahnwaz is already on bail and would be entitled to be acquitted. On the other hand Sri P.S. Yadav, learned A.G.A. has submitted that the prosecution has fully proved the chain of events which would lead to only conclusion that Azad @ Ajju alongwith two of his accomplices committed the crime. According to him there is last seen evidence of Shabnam PW-2 and Saleem PW-3. It is further submitted that Azad @ Ajju had admitted the fact not only before father of Dilshad but also in his confessional statement under section 164 Cr.P.C. about the commission of the crime alongwith specific roles of his two accomplices. He has further submitted that the appellants had failed to explain and discharge the burden of section 106 Evidence Act by stating that as to when Dilshad had separated from them. In reference to our obligation as an appellate court hearing appeal against conviction, we would like to refresh our mind by recalling the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under: "4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained." In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below: "5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence." Keeping in mind the law laid down by the Hon'ble Apex Court in reference to duties of the appellate court hearing criminal appeal against conviction and powers thereof we propose to reexamine and re-appreciate the evidence adduced by the prosecution. We have considered the submissions and our findings are as follows- Motive has an important role to play in a case of circumstantial evidence. Although in the FIR and in the statement of the PW-1 apparently there is no mention of any motive against any of the accused. But Azad @ Ajju in the statement under section 164 Cr.P.C. had stated that he had enmity with the father of Dilshad however the background of the same had not been disclosed in the statement. In his statement to the Investigating Officer, Azad had stated that father of Dilshad had purchased land of his father but had not paid the money which was the reason for enmity. Further recovery of the dead-body made on the pointing out of Azad @ Ajju has been duly proved by the prosecution through independent witness. Hazi Yusuf proved the recovery in addition to the statement given by the police officers. Azad had not been able to explain as to what time Dilshad separated from him and was not in his company at the time of his death. The post-mortem-report also suggested that the death had taken place three days ago i.e. 17.09.2001 the date on which Azad @ Ajju was last seen with the deceased Dilshad. Azad had not been able to explain as to what time Dilshad separated from him and was not in his company at the time of his death. The post-mortem-report also suggested that the death had taken place three days ago i.e. 17.09.2001 the date on which Azad @ Ajju was last seen with the deceased Dilshad. Azad never challenged or disputed or filed any objection regarding his statement under section 164 Cr.P.C. either soon after its recording or at any stage during the trial. Now that Azad @ Ajju has been declared juvenile apparently no purpose would be served by sending the matter for re-trial by Juvenile Justice Board since he has already undergone more than ten years' incarceration when law permits only three years. Apex Court in such cases faced with similar situation has already held that it will be proper to release the juvenile convict rather than referring the matter to the Juvenile Justice Board for a fresh trial. Reference may be had to the following cases- 1. Abdul Razzaq vs. State of U.P, Criminal Misc. Petition No.17870 of 2014 in Special Leave Petition (Crl.) No.2838 of 2000. 2. Criminal Misc. Petition No.7526 of 2015, Ram Narain vs. State of U.P. in Special Leave Petition (Crl.) No.1446 of 2004. We accordingly affirm the conviction of appellant Azad @ Ajju. However in view of the peculiar facts of the case we modify the life sentence awarded by the Trial Judge to the period already undergone. The appeal of Azad @ Ajju is partly allowed to the aforesaid extent. In view of the above discussion we direct that the appellant Azad @ Ajju be released forthwith. Copy of the judgment be sent to the Trial Judge for necessary compliance. Now coming to the case of appellant Shahnawaz, Shahnawaz was not present at the time of recovery of the dead-body. The dead-body has not been recovered on his pointing out. Apart from the statement that he was friend of accused Azad there was no other motive assigned to Shahnawaz to commit the crime. He was produced before the Magistrate on 26.09.2001 when he refused to give any statement as such the application of the Investigating Officer was rejected. Thus, only evidence against Shahnawaz is that of last seen and that the statement of co-accused Azad @ Ajju. He was produced before the Magistrate on 26.09.2001 when he refused to give any statement as such the application of the Investigating Officer was rejected. Thus, only evidence against Shahnawaz is that of last seen and that the statement of co-accused Azad @ Ajju. In the facts and circumstances of the case we are unable to hold that there was sufficient evidence led by the prosecution to establish the charges against Shahnawaz. In this regard, we would like to refresh our mind when the circumstantial evidence can be treated to be conclusive so as to prove the guilt of the accused. In the celebrated case of Sharad Birdhi Chand Sarda vs. State of Maharashtra, AIR 1984, S.C., 1622, the Hon'ble Supreme Court has lucidly enumerated when the circumstantial evidence can be treated to be conclusive. The relevant observation reads hereunder:- 152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973)2 SCC 793 where the following observations were made: "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 153. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." We accordingly allow the appeal of Shahnawaz, set aside the judgment dated 30.08.2006 of the trial Judge to that extent and acquit Shahnawaz of the charges. He is already on bail. His bail bonds are cancelled and sureties are discharged. He need not surrender, provided he files a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance of section 437-A of the Cr.P.C. The appeal of Azad @ Ajju is partly allowed, impugned judgment and orders stand modified to the extent indicated above. Office is directed to communicate this order to the Court concerned for compliance forthwith and to send back the Lower Court Record.