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2016 DIGILAW 445 (ALL)

Nafees v. State of U. P.

2016-02-04

ARVIND KUMAR MISHRA I, ARVIND KUMAR TRIPATHI

body2016
JUDGMENT (Arvind K.Tripathi, J) The present Criminal Appeal has been preferred assailing the judgment and order of conviction and sentence dated 5.4.2003 passed by learned Additional Sessions Judge, Court No.5, Bijnor in Sessions Trial No.454 of 2000 (State vs. Nafees) arising out of Case Crime No.271/2000 under sections 364,302 and 201 I.P.C. PS.Noorpur, District Bijnor convicting and sentencing the appellant for life imprisonment under section 302 I.P.C. and fine for a sum of Rs.5000/-, seven years' R.I. under section 201 I.P.C. with a fine of Rs.2000/- and in default, six months' further imprisonment. Further directed that all the sentences would run concurrently. However, he was acquitted under section 364 I.P.C. No appeal has been preferred against the acquittal under section 364 I.P.C. 2. Mr.Mukhtar Alam, learned Advocate, appeared for the appellant, Mr.Akhilesh Singh, Government Advocate and Mr.Chandrajit Yadav, learned A.G.A. appeared on behalf of the State. 3. The brief facts of this case, in view of the First Information Report lodged by Mohd.Tahseen, brother of deceased Famida alias Mem is that the informant Mohd.Tahseen was resident of Rasoolpur, village Nagla, PS.Chandpur, District Bijnor. His sister Fahmida alias Mem, aged about 28 years was married 11 years back with Nafees s/o Matloof, r/o Noorpur, Tehsil Chandpur, District Bijnor. On 1.9.2000 at about 2.00 P.M.(noon) Nafees, the appellant was going alongwith his sister Fahmida alias Mem, niece (bhanji) Angoori aged about five years and nephew (bhanja) aged about three years towards Khera and in the way Naseera s/o Basheer r/o Rasoolpur saw them on the same day at about 4.00 P.M. Nafees returned to his house and thereafter he left the village. However, his sister and niece did not return. They were not traceable, hence the request was made to lodge the Report to search his sister and niece and to take appropriate steps. The report was got written by scribe Zeemal Ahmad s/o Ridku Khan, r/o Rasoolpur Nagla, Bijnor and the same was lodged and registered at Police Station Noorpur on 6.9.2000 at 7.25 P.M. 4. While the informant and other family members and villagers were searching Fahmida alias Mem and her daughter Angoori, they met to the mother of the appellant Bhuri and his sister Sarofan in the village who informed that the appellant Nafees came at their residence and confessed that he killed his wife and daughter Angoori by pushing in Gogan River near Asgaripur. Thereafter they started searching the body of the deceased on 7.9.2000 and the allegation was made that Fahmida alias Mem and niece Angoori was drowned to death by his brother-in-law Nafees. 5. Further according to prosecution on 11.9.2005 dupatta of the deceased was recovered near sugarcane field under the sisam tree on pointing out of the appellant Nafees when he was apprehended. Thereafter on pointing out of appellant Nafees, the dead body of Fahmida was recovered at the other end of the river near agricultural field of one Chhotey Mistri. He also informed that he pushed his wife Fahmida alias Mem and daughter Angoori in the river and they were killed. The dead body was taken. Panchayatnama was prepared and the dead bodies were sent for postmortem examination. 6. The statement of Nafees was recorded who confessed his guilt. The arrest of Nafees was shown at about 11.00 A.M. on 11.9.2000 from triangle of Asgaripur, Moradabad. While he was in the police custody, he was produced next day i.e. on 12.9.2000 before the First Class Magistrate, Bijnor and his statement was recorded under section 164 Cr.P.C. in which he admitted his guilt that by pushing his wife Fahmida alias Mem he killed her. When her daughter Angoori saw, she also entered into the river and she was drowned to death. According to him the incident took place at 12.00 P.M. Thereafter he took his son and came at his house at about 3.30 P.M. Thereafter leaving his son at house, he left for Moradabad and when he was coming to surrender at the Police Station, he was caught hold by the police station Akilpur crossing. 7. The dead body of Angoori and Fahmida alias Mem were sent for post mortem examination. Since cause of death could not be ascertained, hence viscera was preserved. According to Chemical Analysist Report 'Orgenoclore Insecticide' Poison was found in the sample of intestine, liver kidney and spleen in respect of both Angoori and Fahmida alias Mem. After completing investigation and other formalities the charge sheet was submitted against the appellant by the investigating officer. The case was committed to the court of sessions. Charges were framed and the appellant pleaded to be tried. 8. The prosecution to prove its case examined as many as 12 witnesses. After completing investigation and other formalities the charge sheet was submitted against the appellant by the investigating officer. The case was committed to the court of sessions. Charges were framed and the appellant pleaded to be tried. 8. The prosecution to prove its case examined as many as 12 witnesses. PW-1 Mohd.Naseer, PW-2 Mohd.Tahseen, the informant, PW-3 Mohd.Tausheer, the brother of the deceased Fahmida alias Mem, PW-4 Dr.Anand Swaroop Jain who conducted the post mortem examination on the body of the deceased Fahimda alias Mem, PW-5 A.S.I. Ram Bharosey who prepared panchayatnama of the deceased Fahmida alias Mem, PW-6 Bahadur Singh Chauhan,Investigating Officer, PW-7 Dr.A.S.Rathore, who conducted the post mortem examination on the body of the deceased Angoori on 8.9.2000, PW-8 Head Constable Harishanker, who prepared chick report and registered the First Information Report and written G.D. entry on 6.9.2000. Thereafter another application was given on 7.9.2000. The case was converted under sections 364, 302, 201 I.P.C., PW-9 Constable Rajesh Kumar Sharma who carried the dead body of Angoori for postmortem examination, PW-10 constable Tejan, PW-11 Nathoo Singh who carried the sample for viscera report from hospital to Vidhi Vighyan Prayogshala and PW-12 Raj Singh Verma, ACJM before whom the statement of the accused appellant was recorded under section 164 Cr.P.C. 9. After the evidence was closed by the prosecution the statement of the accused appellant was recorded under section 313 Cr.P.C. According to him he did not confess his guilt and he had not killed his wife and daughter. Thereafter in defence as he desired, his statement was recorded. 10. The trial court found that the prosecution could not be proved the case under section 364 I.P.C, hence acquitted under section 364 I.P.C. However, the trial court found that the guilt under sections 302 and 201 I.P.C. have been proved by the prosecution, hence convicted and sentenced under section 302 & 201 I.P.C. by the impugned judgment. Being aggrieved against the impugned judgment and order the present appeal has been preferred. 11. We heard learned counsels for the parties at lenth and the judgment was reserved on 4.1.2016. 12. Learned counsel for the appellant submitted that the prosecution failed to prove the guilt against the appellant. He has not killed his wife and daughter. With ulterior motive under pressure of the police the alleged confessional statement was got recorded, merely due to suspicion. 12. Learned counsel for the appellant submitted that the prosecution failed to prove the guilt against the appellant. He has not killed his wife and daughter. With ulterior motive under pressure of the police the alleged confessional statement was got recorded, merely due to suspicion. Without any evidence the appellant has been implicated and convicted for murder of his wife and daughter. According to prosecution case and alleged confession of the appellant, he pushed his wife into the river. It was a case of drowning and daughter also just went towards her mother while she was drowning and she was also drown to death but from a perusal of the postmortem examination reports it is clear that the cause of death was not drowning. Viscera was preserved and according to report received from the chemical analyst it was a case of poisoning as 'orgenoclore insecticide' was found. There is no evidence to show who administered the poison, whether she herself took poison and also given it to her daughter or any other person forcibly administered poison. The dead body was recovered after a week in decomposed condition and both bodies were not identifiable but it was shown to have been identified on the basis of cloths. The recovery was shown from a open place on the alleged pointing of the appellant on 11.9.2000 but she disappeared on 1.9.2000. The last seen evidence is not reliable because according to the doctor he conducted the postmortem examination on 12.9.2000 who died about one week back, hence it appears that she died on 5th or 6th September 2000. According to statement of the appellant he gave a sum of Rs.200/- to his wife for expenses as she wanted to go to his parental house before a day from the date of alleged incident i.e. on 31.8.2000 and thereafter he went to Moradabad. When he came to know regarding the incident and while he was coming to his house he was apprehended by the police. He was kept in 'lock up' at the police station for two days and he was given meals by the police, only when he agreed to confess his guilt. He was taken to the court concerned in police custody by the sub inspector and three constables. No other person and family members were there. He was kept in 'lock up' at the police station for two days and he was given meals by the police, only when he agreed to confess his guilt. He was taken to the court concerned in police custody by the sub inspector and three constables. No other person and family members were there. He was very much fearful as he was threatened by the sub inspector and the sub inspector threatened in the court also. Thereafter he was produced before the Magistrate who was sitting in chamber, his thumb impression was obtained on plain paper. 13. The counsel for the appellant further contended that since she died due to poisoning, hence after throwing the dead body in the river, false story cooked up and the appellant was implicated in the present case. It is also incorrect to say that the dead bodies were recovered on his pointing out. The alleged confessional statement is not independent and not voluntarily statement as he was produced from the police custody and on the same day immediately his statement was recorded without giving some adequate period to think and to remove threat and pressure as he was got terrified when he was produced in police custody. Even the Magistrate did not inform before recording alleged confessional statement that he was the Magistrate before whom the statement was to be recorded and if the statement was given, then it should go against his interest. 14. In view of the facts the alleged confessional statement is not reliable and as such the impugned judgment and order of conviction is liable to be set aside. 15. Learned counsel for the appellant relied the following judgment: Shivappa vs. State of Karnataka, SCC 1995(Crl.) 323, Bhagwan Singh & others vs. State of M.P., SCC 2003 (Crl.) 712 : 2003 (46) ACC 454 (SC), Rabindra Kumar Pal @ Dara Singh vs. Republic of India, SCC 2003 Vol-II page 490, Naresh vs. State of U.P., 1997 Alld. Crl.Report 495 : 1997 (35) ACC 629 (HC). 16. Learned A.G.A. vehemently opposed the aforesaid prayer and submitted that there is recovery of dupatta and the dead body of the deceased Fahmida alias Mem and Angoori, wife and daughter of the accused appellant on his pointing out. There was extra judicial confession before his sister and mother and confessional statement before the Magistrate concerned. 16. Learned A.G.A. vehemently opposed the aforesaid prayer and submitted that there is recovery of dupatta and the dead body of the deceased Fahmida alias Mem and Angoori, wife and daughter of the accused appellant on his pointing out. There was extra judicial confession before his sister and mother and confessional statement before the Magistrate concerned. Apart from that the Magistrate was examined who has proved the statement recorded under section 164 Cr.P.C. There was no reason to give false statement by the Magistrate recorded (ACJM). When both the deceased were taken by the appellant before they were killed, how and when the poison was administered by the appellant is not clear but the same was to be explained by the appellant and there is last seen evidence. They were in custody of the police, hence merely on the ground that the cause of death was poisoning, the prosecution case is not to be disbelieved. The trial court rightly convicted and sentenced the appellant under sections 302 and 201 I.P.C. as the prosecution proved the guilt against the appellant. Hence the present appeal being devoid of merit is liable to be dismissed. 17. We considered the submissions of the learned counsel for the parties and perused the record. 18. In the present case the report was lodged on 6.9.2000 by Mohd.Tahseen with the allegation that her sister alongwith her daughter Angoori and son went alongwith her husband appellant Nafees on 1.9.2000 at about 2.00 P.M. Nafees came back alongwith his son (Bhanja of the informant) aged about three years and after dropping him at his house, he left the village. However, his sister and niece did not return. They were searched but not traceable. On 7.9.2000 the report was lodged that as per information he received during search, that before the mother and sister, the appellant confessed his guilt that he drowned his wife and daughter in the river and killed them. Thereafter while searching he got the dead body of Angoori, his niece (daughter of the appellant) on 7.9.2000 which was in decomposed condition and was identified only by cloths and regarding that the information was given to the police. Thereafter while searching he got the dead body of Angoori, his niece (daughter of the appellant) on 7.9.2000 which was in decomposed condition and was identified only by cloths and regarding that the information was given to the police. Subsequently the arrest of the appellant was shown on 11.9.2000 and on his pointing out the recovery of duppatta of his wife Fahmida alias Mem and recovery of her dead bodies was shown, which was also in decomposed condition and was not identifiable. 19. According to prosecution the accused appellant also confessed his guilt before the Investigating Officer, hence he was also produced before the Magistrate on 12.9.2000 where his statement was got recorded. 20. From a perusal of the statement recorded under section 164 Cr.P.C. it is clear that it was not informed that before whom he was giving statement, he was Magistrate and no oath affirmation was recorded. No time for reflection and relaxation was given because immediately his statement was recorded when he was produced from the police custody. 21. Regarding extra judicial confession before the mother and sister the same was not proved by examining them. The alleged confession before the Magistrate was on the same day when he was brought from the police custody. According to his statement he was tortured and meals were not provided. He was kept two days in police custody at Police Station. He was threatened by Sub inspector, hence he confessed that he killed his wife and daughter seeing her mother went towards her mother in the river, hence drowned to death. Before the trial court he stated that he had not confessed his guilt, and his thumb impression was obtained on plain paper. He was not aware regarding whereabouts of his wife and daughter because when he came from Moradabad, as per demand he paid a sum of Rs.200/- to his deceased wife Fahmida as she wanted to go her parental house. Thereafter he returned to Moradabad. Subsequently when he came to know regarding the incident, then he proceeded from Moradabad to his village. However, he was caught hold by the police at Asgaripur crossing when he alighted from the bus. He was kept at police station for two days and he produced in police custody in chamber of the Magistrate. Thereafter he returned to Moradabad. Subsequently when he came to know regarding the incident, then he proceeded from Moradabad to his village. However, he was caught hold by the police at Asgaripur crossing when he alighted from the bus. He was kept at police station for two days and he produced in police custody in chamber of the Magistrate. When the appellant was produced before the Magistrate concerned,even the Magistrate has not given sufficient time for relaxation and to remove pressure and influence of police personnel for recording his voluntary statement which was necessary and basic requirement, when he was in police custody and under police influence. Till viscera report was not available, investigating officer was not aware that it was a case of poisoning, hence his alleged confession was got recorded that she was drowned to death though according to postmortem examination, it was not a case of drowning. From the medical report dated 28.9.2000 it is clear that orgenocloro insecticide was found in sample of viscera the body of the deceased, hence the cause of death was poisoning and not drowning. According to doctor who conducted the postmortem examination, death occurred about one week back. Postmortem examination was conducted on 12.9.2000, hence it appears that both died in between 4th to 6th September 2000 but not on 1.9.2000 when the witness alleged to have last seen, both the deceased in the company of the appellant. 22. So for as the informant is concerned, he has not seen the deceased in the company of the appellant and the last seen whatever he has stated that was on the basis of hearsay evidence. The informant was examined as PW-2. There were three issues from the wedlock of the deceased and the appellant. According to the First Information Report the deceased were seen in the company of the appellant at about 2.00 P.M.(Noon). However, according to the statement of the informant (P.W.2) they were seen at about 12.00 P.M. On 1.9.2000. According to PW-1 Naseer they were seen in the company of the appellant at 11.30 A.M. PW-3 is also brother of the informant and deceased. According to his statement he also saw while they were going alongwith the appellant. However, according to the statement of the informant (P.W.2) they were seen at about 12.00 P.M. On 1.9.2000. According to PW-1 Naseer they were seen in the company of the appellant at 11.30 A.M. PW-3 is also brother of the informant and deceased. According to his statement he also saw while they were going alongwith the appellant. Hence, even if they were seen in the company of the appellant on 1.9.2000 and what has happened in 2-3 days where Fahmida alias Mem herself took poison and also administered to her daughter or any other person gave them poison is not clear because neither there is evidence nor it was a case of the prosecution that the poison was administered to the deceased wife and daughter. Had there been voluntary confessional statement of the appellant, then he might have disclosed the fact of giving poison to both the deceased. Apart from that there is no even last seen evidence soon before the incident. Further there are contradictions in the timing of alleged last seen evidence. 23. In the case of Rabindra Kumar Pal @ Dara Singh vs. Republic of India(supra) the law laid down by the Apext with regard to the reliability of extra judicial confessional statement is as follow: Para-64 "The following principles emerge with regard to Section 164 CrPC: i)The provisions of Section 164 CrPC must be complied with not only in form, but in essence ii)Before proceeding to record the confessional statement a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. iii)A Magistrate should ask the accused as to why he wants to make a statement which surely shall be against his interest in the trial. iv)The maker should be granted sufficient time for reflection. v)He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement. vi)A judicial confession not given voluntarily is unreliable, more so, which such a confession is retracted, the conviction cannot be based on such retracted judicial confession. v)He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement. vi)A judicial confession not given voluntarily is unreliable, more so, which such a confession is retracted, the conviction cannot be based on such retracted judicial confession. vii)Non-compliance with section 164 Cr.P.C. goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence. viii)During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him. ix)At the time of recording the statement of the accused, no police or police official shall be present in the open court. x)Confession of a co-accused is a week type of evidence. xi)Usually the court requires some corroboration from the confession statement before convicting the accused person on such statement." 24. Considering the fact of the present case and judgement of the Apex Court it is clear that the sufficient time was to be granted for reflection and to remove influence and pressure from the side of the police. According to accused appellant he was in police custody for two days and according to prosecution case itself he was arrested on 11.9.2000 and was produced before the Magistrate on 12.9.2000 from the police custody and no adequate time was given to the appellant for complete reflection. However, according to the appellant his thumb impression was obtained on plain paper but it is clear that no averment was made before recording the confessional statement to ascertain and decide that the statement of the accused was not on account of any influence of the police, even if, there is no corroboration by any reliable evidence of the alleged confessional statement which is normally a week type evidence because according to the prosecution case and alleged confessional statement it was a case of drowning though as per medical report and report of chemical analysis, it was a case of poisoning. Hence it is clear that the case of the prosecution regarding the alleged confession is doubtful and the prosecution statement failed to prove its case beyond reasonable doubt, hence the appellant is entitled for the benefit of doubt. 25. In view of the aforesaid discussions, the impugned judgement and order of conviction and sentence dated 5.4.2003 passed in S.T.No.454 of 2000 arising out of Case Crime No.271/2000, PS.Noorpur, District Bijnor, is hereby set aside. Accordingly the present criminal appeal is hereby allowed. The appellant is in jail, hence he shall be released forthwith if he is not wanted in any other case after compliance of the provision of Section 437-A Cr.P.C. 26. Office to communicate this order to the court concerned to ensure the compliance of the judgment.