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2017 DIGILAW 365 (UTT)

Mehboob v. State of Uttarakhand

2017-07-10

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2017
JUDGMENT : Rajiv Sharma, J. 1. Since common questions of law and facts are involved in the above-titled criminal appeals, hence the same are taken up together and are being adjudicated by this common judgment. 2. These appeals are directed against the judgment and order dated 18.09.2012, rendered by learned Vth Additional Sessions Judge, Haridwar in Session Trial No. 429 of 1998, whereby the appellants-accused, who were charged with and tried for the offences under Section 302 read with Section 149 of IPC were convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each and in default of payment of fine to under additional imprisonment for a period of six months. They were also convicted and sentenced to undergo rigorous imprisonment punishable under Section 148 of IPC for a period of three years and to pay a fine of Rs. 1,000/- each and in default of payment of fine to undergo additional imprisonment for a period of one month. They were further convicted and sentenced to undergo rigorous imprisonment punishable under Section 147 of IPC for a period of one year and to pay a fine of Rs. 1,000/- each and in default of payment of fine to undergo additional imprisonment for a period of one month. 3. The case of the prosecution, in a nutshell, is that PW-1 Zakir lodged an FIR on 23.05.1998 to the effect that his 20 years old son was driving tempo. He had gone out of house on 22.05.1998 at 10:00 PM. He thought that he had gone to answer the call of nature. He has gone to sleep. On 23.05.1998 at 6:00 PM, he came to know from the night watchman of village Ghodewala that the dead body of his son was lying in the field of Noor Ahmad. He went to the spot and saw bullet marks on the body of his son. A country made pistol was lying near the body. His son was killed. The postmortem was conducted and the investigation was carried out and the challan was put up after completing all the codal formalities. The prosecution has examined as many as ten witnesses in its support. The statements of the accused were also recorded under Section 313 of Cr.P.C. They have denied the case of the prosecution. The accused were convicted and sentenced, as noticed hereinabove. Hence, these appeals. 4. The prosecution has examined as many as ten witnesses in its support. The statements of the accused were also recorded under Section 313 of Cr.P.C. They have denied the case of the prosecution. The accused were convicted and sentenced, as noticed hereinabove. Hence, these appeals. 4. Learned Counsel for the appellants have vehemently argued that the prosecution has failed to prove its case. Learned counsel on behalf of the State has supported the judgment dated 18.09.2012. 5. We have heard learned counsel for both the parties and perused the judgment and record carefully. 6. According to the contents of FIR, Jahangir has left his house on 22.05.1998 at 10:00 PM. PW-1 Zakir thought that his son has gone out to answer the call of nature. He was informed at 6:00 AM in the morning by the night watchman of village Ghodewala that the dead body of his son was lying in the field of Noor Ahmad. He went there and saw the dead body of his son. 7. PW-1 Zakir is the father of the deceased. According to him, his son was 22 years old. He has gone out from his home at 10:00 PM. He was sleeping. He was informed by the night watchman of village Ghodewala at 6:00 AM that the dead body of his son was lying in the field of Noor Ahmad. He went to the spot. He found his son dead. He noticed bullet injury on the body of his son. A local made pistol and cartridges were lying on the spot. He lodged the FIR. In his cross-examination, he has not mentioned about the inimical relations with Mehboob before any authority except SHO. In his earlier FIR, he has not mentioned about the inimical relations with one of the accused namely Mehboob. 8. PW-2 Meharban has deposed that he along with Ilias were irrigating their fields. They noticed the accused and deceased going towards village Ghodewala. They recognized them with the help of torch. They did not have any conversation with them. Next day, they came to know that Jahangir was murdered. In his cross-examination, he has admitted that his statement was never recorded by the police. 9. PW-3 Mehboob has deposed that in the year 1998 at 1:00 AM, he was coming from Badhedi. He heard the noise of gunshot coming from the back side of the house of Noor Ahmad. Next day, they came to know that Jahangir was murdered. In his cross-examination, he has admitted that his statement was never recorded by the police. 9. PW-3 Mehboob has deposed that in the year 1998 at 1:00 AM, he was coming from Badhedi. He heard the noise of gunshot coming from the back side of the house of Noor Ahmad. He and Ayyaz saw the accused running from the spot. They have seen them with the help of torch. In the morning, they came to know that Jahangir was murdered. 10. PW-4 Barkat is the material witness. According to him, one Kala, S/o Ali Hassan, has told him that dead body of Jahangir was lying in his field at 5:30 AM. He went to the spot. He recognized the body of Jahangir. Thereafter, he went to the house of Zakir and told him that the dead body of his son was lying in his field. Thereafter, he went to the police station. 11. PW-5 Dr. K.K. Karoli has conducted the postmortem examination. He prepared the postmortem report. He has noticed number of injuries on the dead body. According to him, injuries are possible with gunshot. 12. PW-6 Kamil has deposed that he knew the deceased. He was the son of Zakir of his village. He reached the spot. SHO prepared the inquest report. One country made pistol and one live cartridge and one empty cartridge were lying near the dead body of Jahangir. The blood soaked soil was also taken into possession. He signed the recovery memo. 13. PW-7 Ayyaz in his examination-in-chief has deposed that on 22.05.1998 at 1:00 AM, he along with Mehboob were going towards their village. When they reached near village Ghodewala, they heard the noise of gunshot from the backside of the house of Noor Ahmad. They noticed the accused running from the spot. They recognized them with the help of torch. He was declared hostile and cross-examined by learned public prosecutor. In his cross-examination, he has deposed that he has gone to his in-laws house one day before the incident. His in-laws house falls within the limits of police station Jwalapur. When he came back from his in-laws house, he got the news that Jahangir was killed. He had come to house of the deceased next day at 8:00 PM. He was told about the incident by Mehboob. His in-laws house falls within the limits of police station Jwalapur. When he came back from his in-laws house, he got the news that Jahangir was killed. He had come to house of the deceased next day at 8:00 PM. He was told about the incident by Mehboob. He has further deposed that his statement was never recorded by the police. He told the persons present in the spot that he has gone to his in-laws house one day before the incident. He has come back in the morning. 14. PW-8 Shanti Prasad Bishnoi has deposed that he reached the spot. One country made pistol and two live cartridges and one empty cartridge were recovered near the dead body of Jahangir. 15. PW-9 Mehek Singh is the official witness. He has stated that a country made pistol was sent for forensic examination. Finger print was not lifted. 16. PW-10 Bhrampal Pal Singh is the formal witness. 17. The case is based on circumstantial evidence. It is settled law that in order to prove the case based on circumstantial evidence, the chain must be completed and all the circumstances must exclusively bound towards the guilt of the accused. 18. PW-4 Barkat has deposed that one Kala, S/o Ali Hassan has told him that a dead body was lying in his field. He went to the spot. He saw dead body of Jahangir lying in his field. However, in FIR exhibit A-1, it is stated that dead body was recovered from the field of Noor Ahmad. PW-1 Zakir in his statement has also deposed that PW-4 Barkat has told him that dead body was lying in the field of Noor Ahmad. Similarly, PW-2 Meherban has also deposed that on 23.05.1998 at 9:00 AM, they came to know that Jahangir was killed. His body was lying in the field of Noor Ahmad. 19. The prosecution has not examined Kala S/o Ali Hassan, who for the first time, has disclosed about the presence of dead body in the field of PW-4 Barkat. PW-4 Barkat has categorically stated that the dead body was lying in his field, but in the FIR and in the statements of PW-1 Zakir and PW-3 Mehboob, it has come that dead body was recovered from the field of Noor Ahmad. 20. The case of the prosecution is based on the theory of last seen alive. PW-4 Barkat has categorically stated that the dead body was lying in his field, but in the FIR and in the statements of PW-1 Zakir and PW-3 Mehboob, it has come that dead body was recovered from the field of Noor Ahmad. 20. The case of the prosecution is based on the theory of last seen alive. According to the prosecution, PW-2 Meherban and Ilias have seen the accused last time in the company of the accused on 22.05.1998. They were going towards village Ghodewala. They came to know in the morning that Jahangir was killed. PW-2 Meherban and Ilias have met the deceased in the company of the accused at 11:00 PM, but surprisingly, they have not exchanged any pleasant reason. PW-2 Meherban has also told PW-1 Zakir (father of the deceased) that he had seen the deceased in the company of the accused. However, in his cross-examination, PW-2 Meherban has categorically admitted that his statement was never recorded by the SHO. He was the vital link in this case. His statement ought to have been recorded by the SHO to complete the chain. 21. According to the case of prosecution, PW-3 Mehboob and PW-7 Ayyaz have heard the gunshot at 1:00 AM when they were coming back towards Bathedi. They saw the accused running from the spot. They have heard the gunshot at the backside of the house of Noor Ahmad. PW-7 Ayyaz, though, in his examination-in-chief has stated that he has seen the accused running from the spot but he was declared hostile. In his cross-examination, he has categorically stated that he has gone to his in-laws house one day before the incident and he came back in the morning next day. Thus, he has neither heard the gunshot nor he has seen the accused running from the spot. PW-3 Mehboob says that he was in the company of Ilias but Ilias has not supported the version of PW-3 Mehboob. 22. The weapon of offence used in the crime is a country made pistol. It was recovered by the police in the presence of PW-6 Kamil. It has come in the statement of PW-9 Mehek Singh that the country made pistol was sent for FSL examination but there was no report on the record. 22. The weapon of offence used in the crime is a country made pistol. It was recovered by the police in the presence of PW-6 Kamil. It has come in the statement of PW-9 Mehek Singh that the country made pistol was sent for FSL examination but there was no report on the record. The prosecution should have obtained the report to ensure that the gun and one empty cartridge found on the spot used for crime of offence were sent for FSL examination or not. 23. This is a serious lacuna in the case of prosecution. It has also come on record that the motive attributed is the enmity between PW-1 Zakir’s family and Mehboob Ali’s family. The enmity is the double edged weapon. The possibility of the accused being falsely implicated in the case due to enmity also cannot be ruled out. 24. Their Lordships of the Hon’ble Supreme Court in (2014) 4 SCC 715 , in the case of Kanhaiya Lal vs. State of Rajasthan, have held that circumstance of last seen together does not by itself necessarily lead to inference that it was accused who committed crime. There must be something more establishing connection between accused and crime. That if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. He must furnish an explanation which appears to the court to be probable and satisfactory. Their Lordships have held as under:- “12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.” 25. Their Lordships of the Hon’ble Supreme Court in (2015) 4 SCC 393 , in the case of Ashok vs. State of Maharashtra, have held that last seen together itself is not conclusive proof but along with other circumstances surrounding the incident, like relations between accused and deceased, enmity between them, previous history of hostility, recovery of weapon from accused, etc. non-explanation of death of deceased, etc. may lead to presumption of guild of accused. Their Lordships have held as under:- “8. non-explanation of death of deceased, etc. may lead to presumption of guild of accused. Their Lordships have held as under:- “8. The “last seen together” theory has been elucidated by this Court in Trimukh Maroti Kirkan vs. State of Maharashtra, in the following words: (SCC p. 694, para 22) “22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. Thus, the doctrine of last seen together shifts the burden of proof onto the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him.” 9. In Ram Gulam Chaudhary vs. State of Bihar, the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor was his body found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy. 10. In Nika Ram vs. State of H.P. it was observed that the fact that the accused alone was with his wife in the house when she was murdered with a “khukhri” and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. 11. The latest judgment on the point is Kanhaiya Lal vs. State of Rajasthan. In this case this Court has held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing the connectivity between the accused and the crime. The latest judgment on the point is Kanhaiya Lal vs. State of Rajasthan. In this case this Court has held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing the connectivity between the accused and the crime. Mere non-explanation on the part of the accused by itself cannot lead to the proof of guilt against the accused. 12. From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non-explanation of death of the deceased, may lead to a presumption of guilt. 20. From the above discussion, we conclude that the prosecution has not brought any clinching evidence in support of the last seen together theory so as to shift the burden of proof on the appellant-accused. In light of this, the prosecution has evidently failed to prove the guilt of the appellant-accused beyond doubt. Therefore, the appeal is allowed and the judgment and order1 passed by the High Court as also by the trial court are set aside. The appellant is directed to be released forthwith if not required in connection with any other case. 26. Their Lordships of the Hon’ble Supreme Court in (2016) 1 SCC 550 , in the case of Nizam and Another vs. State of Rajasthan, have explained the principle of last seen theory. Their Lordships have held as under:- “14. The courts below convicted the appellants on the evidence of PWs. 1 and 2 that the deceased was last seen alive with the appellants on 23.1.2001. Their Lordships have held as under:- “14. The courts below convicted the appellants on the evidence of PWs. 1 and 2 that the deceased was last seen alive with the appellants on 23.1.2001. Undoubtedly, the “last seen theory” is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The “last seen theory” holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled by this Court that it is not prudent to base the conviction solely on “last seen theory.” “Last seen theory” should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.” 27. Thus, the prosecution has failed to provide complete chain of circumstances. There are major contradictions in the statements of witnesses. The prosecution has miserably failed to prove the theory of last seen together. The gun was fired at 1:00 AM. It would have drawn the attention of residents of the village. However, it has not come in record that villagers had come on the spot. Moreover, neither PW-3 Mehboob nor PW-7 Ayyaz have gone to the spot. 28. The prosecution has failed to prove its case beyond reasonable doubt. Accordingly, the appeals are allowed. The judgment dated 18.09.2012 is set aside. The appellants are on bail. They need not to surrender. Their bail bonds and sureties are discharged. 29. Let a copy of this judgment along with LCR be sent to the trial court.