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2017 DIGILAW 1074 (ALL)

MAHBOOB @ DHUMAL v. STATE OF U. P.

2017-04-21

BHARAT BHUSHAN, SHAILENDRA KUMAR AGRAWAL

body2017
(Delivered by Hon. Bharat Bhushan, J. 1. Appellant Mahboob @ Dhumal has assailed the judgment and order dated 15.2.2001 passed by the then Sessions Judge, J.P.Nagar in Sessions Trial No. 49 of 1999 arising out of Case crime no. 541 of 1999 whereby he was convicted under sections 302, 376, 363 and 201 Indian Penal Code (in short, I.P.C.) and sentenced to undergo life imprisonment and a fine of Rs.5,000/-, 10 years imprisonment and a fine of Rs.5,000/-, 7 years imprisonment and a fine of Rs.3,000/- and 3 years imprisonment and a fine of Rs. 2,000/-respectively with default stipulations. All the sentences were directed to run concurrently. 2. Prosecution case, in brief, is that 8 years old daughter of informant Barkatullah (PW-1) was sitting at his door steps on 20.8.1999 at about 8:00pm in the light of Gas. Suddenly, her neighbour appellant Mahboob @ Dhumal arrived at his door steps and enticed away the little girl (referred to as 'victim' in view of bar of Section 228-A IPC). 3. It is alleged that complainant Barkatullah (PW-1) his father and other members of family chased appellant Mahboob @ Dhumal but failed to apprehend him and victim though they were reportedly seen by several persons of locality, who allegedly informed the family members that appellant Mahboob @ Dhumal was dragging away the victim. 4. Prosecution has further alleged that family members of victim initiated a search for the victim on the next day i.e. 21.8.1999 at about 3:00am in the morning. The corpse of victim was found in a dry well located in the agricultural field of Sufi Malik. A Shalwar (a lower garment) of the victim was lying besides the corpse, which gave indication that victim had been sexually assaulted. Complainant Barkatullah (PW-1) got the First Information Report (in short, FIR) (Ex.Ka. 1) scribed by one Mahtab Amrohi, which was subsequently lodged at the Police Station (in short, P.S.) Amroha Nagar at 4:00pm. The prosecution has alleged that appellant Mahboob @ Dhumal is a man of criminal antecedent and that some altercation had taken place between mother of appellant and wife of complainant which resulted in antagonistic relationship between both the families. 5. After registration of the case, investigation was initiated by PW-6 Rajvir Singh, Investigating Officer (in short, I.O.). Inquest report (Ex. Ka. 4) was prepared. The corpse was sent for postmortem. Two site-plans (Ex. Ka. 11 & Ex. Ka. 5. After registration of the case, investigation was initiated by PW-6 Rajvir Singh, Investigating Officer (in short, I.O.). Inquest report (Ex. Ka. 4) was prepared. The corpse was sent for postmortem. Two site-plans (Ex. Ka. 11 & Ex. Ka. 12) were prepared. Then appellant Mahboob @ Dhumal was arrested. Ex. Ka 11 is site-plan of dry well where corpse of victim was recovered. Ex. Ka. 12 is the site-plan depicting places where victim was playing, raped and murdered. After conclusion of the investigation, charge sheet, Ex. Ka.-13 was submitted against the appellant. 6. On receipt of case after commitment, trial Judge framed charges against appellant Mahboob @ Dhumal under sections 363, 376, 302, 201 IPC on 23.2.1999, who pleaded not guilty and claimed to be tried. 7. Prosecution adduced the evidence of Barkatullah (complainant-father of the deceased victim) as PW-1, Munno @ Chandni as PW-2, Azmat Ali as PW-3, Dr. Vijay Kumar Goel as PW-4, Dr. N.V.Sharma (Pathologist) as PW-5 and Inspector Rajvir Singh as PW-6. The statement of appellant was recorded under section 313 Cr.P.C. wherein appellant denied all the allegations and claimed false implication on account of previous enmity. 8. Defence also produced two witnesses, namely, Munawar Ali as DW-1 and Rafiq Ahmad as DW-2. On conclusion of trial, trial Judge held appellant Mahboob @ Dhumal guilty of offences under section 302, 363, 376 and 201 IPC and awarded various sentences, as aforesaid. This judgment is under challenge before his Court. 9. Heard Sri Abhishek Sharma, learned Amicus Curiae for appellant and Sri Nagendra Kumar, learned AGA for the State. 10. Learned Amicus Curiae has pointed out that entire prosecution case is merely dependent upon the last seen story and that no one has, in fact, witnessed the incident. Learned Amicus Curiae has submitted that last seen story of prosecution is not trustworthy on account of significant and vast discrepancies. He has also argued that evidence demonstrated that both PW-1 Barkatullah and PW-2 Munno@ Chandni had not seen disappearance or departure of victim in the company of accused. It was also argued that all the witnesses of fact are partisan and on inimical terms with appellant. 11. He has also argued that evidence demonstrated that both PW-1 Barkatullah and PW-2 Munno@ Chandni had not seen disappearance or departure of victim in the company of accused. It was also argued that all the witnesses of fact are partisan and on inimical terms with appellant. 11. On the contrary, learned AGA has submitted that it was inhuman case of rape and murder of a little girl and; that victim was last seen in the company of appellant by parents and other members of the locality and that thereafter, victim was found dead in a dry well and there is no other explanation for the death of deceased victim except the culpability of appellant. 12. We have carefully examined all the materials available on record. It is evident that offence is shocking but gravity of offence can not by itself impel us to convict the appellant. For convicting any person in a criminal case, legal proof is required. It is true that whenever any person is last seen in the company of victim, he/she would be prime suspect unless there are circumstances exonerating accused. But as far as legal adjudication is concerned, suspicion howsoever strong can not take place of proof. 13. In the instant case, certain glaring discrepancies are visible. The FIR (Ex.Ka.-1) claims that victim was playing at her door steps on 20.8.1999 at about 8:00pm and there was sufficient light of Gas. Appellant Mahboob @ Dhumal came at the door steps to lure away the victim and they were chased by the family members of victim including appellant. They were also seen by several persons of the locality who reportedly informed the complainant that victim was being dragged by the appellant. 14. These facts enshrined in the FIR have been repeated by PW-1 Barkatullah (father of deceased victim) as well as PW-2 Munno @ Chandni (mother of deceased victim). 15. This story and evidence should be seen in the backdrop of antagonistic relationship between rival parties. It is also not disputed that appellant is immediate neighbour of the complainant. PW-1 Barkatullah and his wife PW-2 Munno @ Chandni have claimed that they had seen the appellant Mahboob @ Dhumal with victim; that they had also actually witnessed the enticement of victim by appellant; and that they had chased the appellant and victim but failed to apprehend them. 16. Now this story is little bizarre. PW-1 Barkatullah and his wife PW-2 Munno @ Chandni have claimed that they had seen the appellant Mahboob @ Dhumal with victim; that they had also actually witnessed the enticement of victim by appellant; and that they had chased the appellant and victim but failed to apprehend them. 16. Now this story is little bizarre. Complainant and his wife belong to an ordinary lower middle class family. They were certainly not residing in a palace or big house. If they had seen enticement of deceased victim by appellant Mahboob @ Dhumal, then it would have been impossible for appellant to drag away the victim. The evidence gives two versions; that victim was enticed away meaning thereby no force was used to take away the victim but they have also claimed at other places that victim was dragged away and yet the entire family could not apprehend or stop the appellant from taking away the victim. We do not believe that it was possible for appellant to abduct the victim in the presence of entire family and in presence of large number of people in the locality. 17. Even if, this story is accepted at its face value, the presence of both PW-1 Barkatullah and PW-2 Munno @ Chandni at the time of disappearance of victim is highly doubtful. 18. If indeed appellant had forcibly abducted the victim in presence of her parents, then we believe that it would not have been possible for appellant to successfully take away the victim and thereafter to rape and murder her in the vicinity. Evidence discloses that dead body of victim was found at the distance which could have been traversed within ten minutes as stated by PW-1 Barkatullah in paragraph 10 of his statement. 19. Both the site-plans (Ex.Ka-11 and 12) also indicate that dry well from, where victim's cadaver was recovered, is not at a great distance from the residence of the complainant and appellant also. This place is also surrounded by several residences. There is a mosque and cinema nearby. 19. Both the site-plans (Ex.Ka-11 and 12) also indicate that dry well from, where victim's cadaver was recovered, is not at a great distance from the residence of the complainant and appellant also. This place is also surrounded by several residences. There is a mosque and cinema nearby. It is inconceivable that an eight year old girl was dragged by appellant in front of her house, taken through the various lanes surrounded by residential houses, thereafter, raped and murdered at a particular place shown by alphabet 'E' in site-plan (Ex.Ka.-12) and then again corpse was taken to a dry well of Sufi Malik in the vicinity of mosque and cinema hall and dropped into it and yet no one witnessed any part of incident. All three witnesses have merely said that they had last seen the deceased victim in the company of appellant. 20. Interestingly, the place where the victim was allegedly raped and murdered is depicted in the site-plan (Ex. Ka.-12) by alphabet 'E' yet there is no evidence on record to establish this fact. Who informed the I.O. that victim was raped and murdered at this place ? Why no blood stained earth was taken from the said place ? The evidence of I.O. does not give any indication that under what circumstances he had identified the place of rape and murder and yet no blood stained or simple earth was taken from the said place. 21. Coming back to the factual evidence, it is pertinent to point out that FIR indicates that body of the victim was recovered at 3:00am from the dry well. If there was some confusion in this regard, it was cleared by PW-1 Barkatullah (father of the deceased victim) in his examination-in-chief wherein he has specifically asserted that cadaver of victim was recovered from the well at 3:00am in the morning, but PW-2 Munno @ Chandni has given dramatically opposite statement in this regard. She has stated that corpse of victim was recovered at 3:00pm on 21.8.1999 i.e. after almost 19 hours of disappearance of victim. Difference of almost 12 hours in the testimonies of parents is very significant and creates doubt about the credibility of both persons. She has stated that corpse of victim was recovered at 3:00pm on 21.8.1999 i.e. after almost 19 hours of disappearance of victim. Difference of almost 12 hours in the testimonies of parents is very significant and creates doubt about the credibility of both persons. It is pertinent to point out that PW-1 Barkatullah, later on, rescinded from his statement and stated that body was recovered at 3:00pm and stated that body was recovered at 3:00pm on the next day and that he had wrongly shown the recovery of cadaver of victim at 3:00am. 22. Aforesaid discrepancy alone is not detrimental to the prosecution case. PW-1 Barkatullah (father of the deceased victim) has given interesting twist to the prosecution story. First he said that he had seen appellant taking away his daughter and he tried to apprehend them but he could not do so because of darkness. Claim of darkness is little surprising for the simple reason that prosecution story says that Gas light was available at the place of occurrence. 23. Another surprising statement was made by PW-1 Barkatullah in paragraph-5 of his evidence wherein he has stated that he was taking his food at the time of enticement of the victim by the appellant. PW-3 Azmat has indicated that appellant Mahboob @ Dhumal was dragging away the victim. Dragging away necessarily indicates use of physical force in taking away the victim. If, physical force was used to drag-away the victim, then the story of luring away of victim is not consistent with the evidence of PW-3 Azmat. A person can either lure away the victim or drag her by using force. Ordinarily both conducts are not consistent with each other. This inconsistency, in fact, further reinforces the contention of learned Amicus Curiae that eyewitnesses were not present on the spot otherwise there would not have been such a serious inconsistency in the prosecution evidence. 24. Coming back to the evidence of PW-1 Barkatullah that he was taking food at the time of disappearance of victim with appellant, the interesting aspect of his evidence recorded in paragraphs 5, 6, 7 and 8 of his testimony discloses significant facts. PW-1 Barkatullah has said that he saw disappearance of victim in the company of appellant while taking his dinner but he calmly continued to take his dinner for another 15-20 minutes and thereafter commenced search for his daughter. PW-1 Barkatullah has said that he saw disappearance of victim in the company of appellant while taking his dinner but he calmly continued to take his dinner for another 15-20 minutes and thereafter commenced search for his daughter. This was highly incongruous conduct. This is obviously not a mistake for the reason that PW-2 Munno @ Chandni (mother of deceased victim) reiterated the same. She has also stated that appellant Mahboob @ Dhumal was enticing her daughter while she was taking her dinner and they only commenced search after completing their dinner and thereafter conducted search for whole the night claiming that loud-speaker was also used for announcing the disappearance of victim. Question is why were parents nonchalantly kept on taking the dinner while appellant Mahboob @ Dhumal was dragging away their 8 year old girl in their presence and in their sight. This strange description merely indicates an attempt to manufacture and create evidence. We believe that neither PW-1 Barkatullah nor PW-2 Munno @ Chandni had seen disappearance of their daughter personally and certainly not in the company of appellant Mahboob @ Dhumal. 25. PW-1 Barkatullah made another confession in paragraph-7 of his testimony wherein he has said that he came out of house after 15-20 minutes of taking dinner and did not find the girl, then was informed by PW-3 Azmat and one Idrees in the night at about 9:00pm that his daughter had been dragged away by appellant Mahboob @ Dhumal. This statement is again inconsistent with the original story. In paragraph-13 of his testimony, another claim was made by Barkatullah. He stated that victim was shouting and crying at the time of her abduction as allegedly communicated to him by PW-3 Azmat and Idrees but they did not interfere as both PW-1 Barkatullah and appellant were neighbours. Interestingly, PW-3 Azmat has completely demolished the evidence of PW-1 Barkatullah in this regard. He has specifically asserted that he had seen deceased in the company of appellant but did not intervene because he thought that he was taking victim for providing her some articles. He has denied that victim was crying and raising alarm. He has specifically stated in paragraph-8 of his testimony that appellant was taking the victim quite casually and easily. 26. It is evident that there are significant discrepancies in the statements of all the eyewitnesses. He has denied that victim was crying and raising alarm. He has specifically stated in paragraph-8 of his testimony that appellant was taking the victim quite casually and easily. 26. It is evident that there are significant discrepancies in the statements of all the eyewitnesses. In any case, upshot of testimonies tendered by these eyewitnesses is that victim was taken away by appellant Mahboob @ Dhumal or that victim was last seen in the company of appellant Mahboob @ Dhumal. There is no evidence of using any force or subjecting victim to any assault by appellant. This case is not completely based on chain of circumstantial evidence. This case is merely based on 'last seen' allegations of prosecution which have not been established by trustworthy evidence. 27. It is alleged that 8 year old daughter was taken away in presence of parents and yet both parents continued to take dinner for another 15-20 minutes and thereafter commenced search for their little daughter. This conduct is strange and belies their presence on the spot. The fact that FIR was lodged after 20 hours without any satisfactory explanation is also detrimental to the prosecution case. It is true that delay in lodging the FIR per se is not necessarily detrimental to prosecution case in every eventuality but in the instant case, if we accept the prosecution story and evidence, it is revealed that parents were aware of disappearance of their daughter at 8:00pm in the evening. On the other hand, if we assume that they became aware of disappearance of their daughter, after receiving information from PW-3 Azmat at 9:00pm, even then there was no reason for complainant to wait for almost 20 hours for lodging the FIR. Chik Report (Ex.Ka-14) indicates that the place of occurrence is merely 2 km. away from Police Station. The incident occurred within jurisdiction of P.S. Amroha Nagar, District J.P. Nagar. PW-6 Rajvir Singh, I.O. has admitted that he had received information at about 4:00pm and yet no satisfactory explanation has been given by prosecution for delay in lodging the FIR which substantially demolishes prosecution case. 28. The prosecution story indicates that dead body of deceased was found in the dry well of Sufi Mullik. There are some residential houses in addition to houses of Mohsin, Jhamman Shah, Ghazi and Shiv etc. 28. The prosecution story indicates that dead body of deceased was found in the dry well of Sufi Mullik. There are some residential houses in addition to houses of Mohsin, Jhamman Shah, Ghazi and Shiv etc. The fact that 8 year old girl was raped, murdered and then dragged to dry well without anybody noticing this incident is quite unbelievable. 29. There is no evidence on record to indicate how the witnesses came to know the presence of dead body in a dry well which was more-than 20 feet deep. As admitted by PW-1 Barkatullah, dead body was not taken out of well instead PW-1 Barkatullah chose to report the matter to the Police. PW-1 Barket Ullah has claimed that he went to Police Station for lodging the report at 4:00pm and that certain person accompanied him at the time of lodging of the report. In paragraph20, he has specifically asserted that he was accompanied by Mahtab Amrohi, the scribe of report, as well as several men and women. Unfortunately, this contention does not find support from the documents executed at the Police Station Amroha Nagar. The extract of General Diary (in short, G.D.) is available on record (Ex.Ka-15) which says that only PW-1 Barkatullah went to the Police Station for lodging the report. Propensity of PW-1 Barkatullah to manufacture facts and evidence is palpable. This has damaged his credibility. PW-6 Rajvir Singh, I.O. has also not disclosed the presence of any person at the time of lodging of the FIR. 30. Learned counsel for the appellant has also pointed out that PW-3 Azmat himself is highly doubtful witness. This witness did not interfere despite being related to the victim and did not intervene when victim was allegedly being dragged away. Admittedly, he did not stop them or intervene. It is pertinent to understand the psychology of small town of Uttar Pradesh. An eight year old girl was taken away in the night at about 8:00-9:00pm by enemy of the family yet PW-3 Azmat, uncle of the victim did not intervene at all. If we examine the prosecution case minutely, it would indicate that victim was allegedly crying and shouting at the time and yet her so called uncle PW-3 Azmat did not intervene in the abduction of victim and allowed her to be raped and murdered nonchalantly. This story and evidence are not acceptable. If we examine the prosecution case minutely, it would indicate that victim was allegedly crying and shouting at the time and yet her so called uncle PW-3 Azmat did not intervene in the abduction of victim and allowed her to be raped and murdered nonchalantly. This story and evidence are not acceptable. Victim's mother Munno @ Chandni (PW-2) has admitted in paragraph-8 of her testimony that accused was merely 5-6 steps away from her when he was abducting/luring the victim and yet the family merely kept taking the dinner in a very relaxed manner. Admittedly, family hired loud-speaker for announcing the disappearance of victim. It has been admitted by PW-3 Azmat Ali, who claims to have accompanied Barkatullah for lodging the FIR yet FIR was lodged after 20 hours at the Police Station which was merely two km. away. 31. We have also noticed that motive attributed to the appellant is weak. It is alleged that the mother of appellant had an altercation with the mother of victim some 15 days prior to the incident due to children. Prosecution claims that on account of that finding, the appellant committed the murder. We find that this motive does not appeal to the reason especially in the light of significant discrepancies in the prosecution evidence. 32. PW-1 Barkatullah says that appellant was arrested on 21.8.1999 while official record discloses that appellant was apprehended on 22.8.1999. What is the reason for this discrepancy ? 33. We have carefully perused all the material on record. We are not satisfied with the quality of evidence adduced by prosecution. We have lingering doubts about the genesis of case and prosecution evidence produced in support of allegations. The victim was taken away on 20.8.1999. Her postmortem was conducted on 22.8.1999 at 11:30pm. Her dead-body was found in a dry well and maggots were present on the person of deceased. Rigor mortis had passed away. The condition of body of victim creates doubt about the timing of death, considering the fact that cadaver was found in the dry-well. In any case, there is no direct evidence of stated crime of appellant. The entire case depends merely on 'last seen' theory of prosecution which has not been established by trustworthy evidence. We believe that appellant is entitled for benefit of doubt. 34. In the result, the appeal is allowed. In any case, there is no direct evidence of stated crime of appellant. The entire case depends merely on 'last seen' theory of prosecution which has not been established by trustworthy evidence. We believe that appellant is entitled for benefit of doubt. 34. In the result, the appeal is allowed. The judgment and order dated 15.2.2001 passed by the then Sessions Judge, J.P.Nagar in Sessions Trial No. 49 of 1999 (State versus Mahboob @ Dhumal) arising out of Case crime no. 541 of 1999 whereby he was convicted under sections 302, 376, 363 and 201 I.P.C. is set aside. Appellant Mehboob alias Dhumal is acquitted of charge under Sections 302, 376, 363 and 201 I.P.C. Appellant need not surrender before the trial court if on bail in this case. 35. Office is directed to certify the judgment to the concerned court through Sessions Judge, J.P.Nagar within 15 days. The concerned court shall send the compliance report within one month thereafter.