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2019 DIGILAW 1031 (ALL)

Mobin v. State of U. P.

2019-04-22

ANIL KUMAR IX, NAHEED ARA MOONIS

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JUDGMENT : 1. Heard Sri V.P. Srivastava, learned Senior Advocate asissted by Sri Onkar Singh, learned counsel appearing on behalf of the appellant and the learned AGA and have been taken through the materials on record. 2. An application supported by affidavit has been filed on behalf of the appellant seeking bai lduring the pendency of appeal against the judgment and order dated 13.1.2011 passed by the learned Additional District & Sessions Judge Court No.13 Muzaffar Nagar whereby the appellant has been convicted and sentenced to undergo life imprisonment with fine of Rs. 5000/-in default of payment of fine, the appellant has to undergo additional sentence of six months for the offence punishable under sections 302/34 IPC in Sessions Trial No. 592 of 2005 arising out of Case Crime No. 107 of 2005 Police Station Budhana District Muzaffar Nagar 3. It is submitted by the learned counsel for the appellant that it is a case of circumstantial evidence . Three persons were named in the first information report. The trial proceeded against Mobin & Aas Mohammad @ Asu and the trial of Meharban was separated as he was declared juvenile. There is no eye witness to connect the complicity of the appellant for the commission of said offence as such the prosecution cannot be said to have proved the guilt of the accused appellant beyond all reasonable doubt. The conviction of the appellant cannot be sustained solely upon his disclosure before the complainant and some other persons which had led to the discovery of the dead body of deceased Irshad. All the incriminating articles like clothes and the weapons i.e. knife and sword as well as recovery of the dead body of deceased Irshad at the pointing of the appellant and co-accused in police custody is hit by section 27 of the Evidence Act. Such recovery is not admissible in view of the disclosure already made by the appellant before the villagers then again made disclosure before the police. The object of sections 25 & 26 of the Evidence Act is to prevent the abuse of powers by the police, and hence confessions made by accused person before the independent person cannot be proved against him unless made in presence of a magistrate. The custody of a police officer provides easy opportunity of coercion for extorting confession obtained from accused appellant through any undue influence exerted upon him. The custody of a police officer provides easy opportunity of coercion for extorting confession obtained from accused appellant through any undue influence exerted upon him. The conviction of the appellant Mobin being based on such recovery on the basis of confessional evidence cannot be said to have proved all the links to hold him guilty for the alleged offence. The discovery must be on some fact which was not known previously from other sources and knowledge of the fact was first derived from information given by the accused to the police. Two conditions are prerequisite under section 27 of the Evidence Act, firstly information must be such as has caused discovery of the fact and secondly the information must relate distinctly to the fact discovered. The learned counsel for the appellant stressed that in the present case, it has already been mentioned in the first information report that the accused appellant had disclosed to the complainant and other persons that the corpse of Irshad had been concealed in the field of Shiv Charan Gujar, therefore, alleged discovery/recovery by the appellant is inadmissible.The appellant has been incarcerating in jail since 2005 hence deserves to be enlarged on bail taking into account the longevity of fourteen years inside the bar. 4. Per contra learned AGA contended that there is active participation of the appellant along with two other accused persons in the commission of said offence. Circumstances and evidence have led to the conclusion that the accused appellant shared with co-accused persons to commit murder of Irshad. The injuries caused were multiple incised wound sufficient in ordinary course of nature to liquidate the deceased. There is a chain of evidence delineating that in all human probability the accused appellant has participated in the commission of said offence. The testimony of eye witnesses is unimpeachable and any minor contradictions found therein were not fatal to the prosecution case. The extra judicial confession of the appellant regarding the manner of incident has been proved by the witnesses which has led to the discovery of the dead body of the deceased and the weapon used in the commission of offence hence the appellant does not deserve any indulgence merely on the ground of long incarceration. 5. The extra judicial confession of the appellant regarding the manner of incident has been proved by the witnesses which has led to the discovery of the dead body of the deceased and the weapon used in the commission of offence hence the appellant does not deserve any indulgence merely on the ground of long incarceration. 5. Having weighed the rival submissions advanced by the learned counsel for the parties, we find no substance in the submissions advanced by the learned counsel for the appellant that on the disclosure statement made by the appellant twice, recovery at his pointing would be inadmissible by section 27 of Evidence Act and such recovery is not a substantive piece of evidence hence the conviction and sentence of the appellant cannot sustain. According to the first information report lodged by Khalil Ahmad , the accused appellant Mobin had attributed allegations upon Irshad,the son of the complainant with regard to tease and torment by him to his sister prior to 15 days of the incident. The matter was settled on the intervention of the respected persons of the locality but the accused appellant was rearing animus and grudge against Irshad, the son of the complainant. On this score, the accused appellant developed friendship with Meharban , the son of the brother of complainant who called to his son Irshad. When he did not return back, he started to search out his son. In these situation, it came out that on 14.2.2005 at about 7.30 p.m. Irshad (deceased) Meharban, Aas Mohammad alias Aasoo and Mobin were seen by Istkhar and Rais going towards Chanddheri Road. At the noon, Meharban came at his residence and divulged that Irshad (deceased) had gone with Aas Mohammad alias Aasoo. Mobin (appellant) and Aas Mohammad alias Aasoo were searched by Iqbal Dilshad and Shamshad alias Sada Haji, Munshi Akhtar and Chaudhary Naseem and others, then it revealed that Mobin had gone to his Sasural at Nirpura. On meeting with Mobin (appellant) and Aas Mohammad alias Aasoo, they enquired about Irshad (deceased), it was exposed by them that Irshad had gone with Meharban. On meeting with Mobin (appellant) and Aas Mohammad alias Aasoo, they enquired about Irshad (deceased), it was exposed by them that Irshad had gone with Meharban. Mobin (appellant) and Aas Mohammad alias Aasoo were brought at the residence of Nasroo on 15.2.2005 at about 6.00 p.m. and then in front of Meharban, Mobin divulged that Irshad (deceased) was done to death by inflicting blows with knife and sword on 14.2.2005 at about 9.00 p.m. in association with Aas Mohammad and Mehbarban and his dead body was inhumed in the field of Shiv Charan Gujar situate at village Chandheri. Aas Mohammad alias Asoo and Meharban had also confessed with regard to the murder of Irshad in front of a number of persons and confessed that they will recover the dead body of Irshad. Thereafter all of them were taken to the police station and the first information report was lodged and were taken into custody. On 16.2.2005 while in custody at the pointing of appellant (Mobin), a blood stained knife was recovered from the field of Shiv Charan Goojar. A blood stained sword was recovered at the pointing of Aas Mohammad alias Asoo. From the possession of Meharban a blood stained sword was recovered. The recovery of the dead body and incriminating articles were recovered in the presence of Abad s/o Saleem, Rais son of Sabbir and Shamshad son of Yamin which were marked as Exhibit Ka.5. 6. It has emerged that the accused appellant had firstly disclosed to the complainant and other persons that the dead body of the deceased Irshad was concealed in the field of Shiv Charan which demonstrates that it was within the exclusive knowledge of the accused appellant that the dead body of deceased Irshad was hidden at the particular place hence the discovery of dead body and other incriminating articles at the pointing of accused appellant distinctly relates to the object recovered.The extra judicial confession made by the accused appellant before the complainant and three other witnesses namely Khalil, Rais, Haji Akhtar and Istekhar who were examined as P.W.1,2,3 & 4 was not before any person in authority to attract section 25 & 26 of the Evidence Act. It was an extra judicial confession made by the accused appellant which was spontaneous inflow of emotions voluntary in nature made before the witnesses to shed his cloak of guilt. It was an extra judicial confession made by the accused appellant which was spontaneous inflow of emotions voluntary in nature made before the witnesses to shed his cloak of guilt. The motive behind the commission of the crime is also evident from the FIR. There is consistency in the statement of the prosecution witnesses about extra judicial confession of the accused appellant. The recovery of the dead body and other weapon of assault thereafter have been made at the disclosure of the accused persons while in custody which was within their exclusive knowledge is admissible under section 27 of the Evidence Act. The factum of recovery at the instance of an accused appellant under section 27 of Evidence Act has been proved like any other fact by the reliable prosecution witnesses. 7. Section 27 of the Evidence Act is based on the doctrine of confirmation by subsequent events. If any fact is discovered on the strength of any information obtained by the accused while in custody such a discovery is guarantee that the information supplied by the accused is true. The testimony of prosecution witnesses cannot be doubted in the absence of any material to show that they had been motivated to falsely implicate the appellant rather motive for crime clearly brought on record. 8. The bail application sans merits and is accordingly dismissed.