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2019 DIGILAW 1502 (RAJ)

Mohammad Imran v. State of Rajasthan

2019-05-14

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT Vinit Kumar Mathur, J. - The instant appeal was admitted by this Court on 27/02/2017. The Secretary, Legal Services Authority of Rajasthan High Court, Jodhpur vide its order dated 24/04/2019 appointed Shri Ashok Kumar Upadhyay as an Amicus Curiae to contest the present appeal on behalf of the accused-appellant. 2. The present appeal has been preferred by the accusedappellant Mohammad Imran against the judgment dated 18/01/2017 passed by learned Additional Sessions Judge No.02, Jodhpur, Metropolitan in Sessions Case No.02/2015, whereby the accused Mohammad Hussain and Mohammad Rizwan were acquitted by the trial Court by extending the benefit of doubt to them while the accused-appellant was convicted and sentenced as under :- Offence Sentence Fine In default 302 IPC Life Imprisonment 10,000/- 6 months' R.I. 201 IPC Seven years R.I. 5,000/- 2 months R.I. All the sentences were ordered to run concurrently. 3. The prosecution story as disclosed in the report (Ex.P.22) lodged by Devilal (P.W. 2) to the S.H.O. Police Station Pratap Nagar, District Jodhpur on 09/04/2013 is that he was resident of Sanjay (C) Colony, Pratap Nagar, Jodhpur. His daughter Neetu developed a love affair with Imran and was married to him for last two and half years and both were living together. She had a 6-7 months old son from the wedlock. Neetu often complained about the maltreatment and assault at the hands of her husband Imran. On 09/04/2013 at around 6 p.m., Azam Khan resident of their colony came to his residence and told that Neetu had been murdered by her husband Imran and her dead body had been disposed of by Imran and his two brothers Hussain and Rizwan the previous night. When he enquired from the residents of colony then he came to know that whatever Azam Khan had stated was correct. Therefore, he reported the matter to the Police Station for appropriate action. 4. On this written report, an FIR No. 178/2013 (Ex.P.33) was registered by the Circle Inspector, Police Station Pratap Nagar, District Jodhpur on 09/04/2013. The investigation was commenced. After completion of the investigation, police filed a charge-sheet against the accused-appellant for the offences under Sections 201, 302/34 IPC. 5. Learned Trial Court framed, read over and explained the charge for the offences under Sections 302, 201 I.P.C to the accused-appellant, who denied the charge and sought trial. 6. The investigation was commenced. After completion of the investigation, police filed a charge-sheet against the accused-appellant for the offences under Sections 201, 302/34 IPC. 5. Learned Trial Court framed, read over and explained the charge for the offences under Sections 302, 201 I.P.C to the accused-appellant, who denied the charge and sought trial. 6. During the trial, the prosecution produced 13 witnesses apart from 54 documents to prove their case. 7. The accused-appellant was examined under Section 313 Cr.P.C. and he was confronted with the evidence adduced against him during the course of trial, which he denied and stated that he had been falsely implicated in the case and was innocent. Neetu was not staying with him at the time of the incident. 8. Learned trial Court, after hearing the arguments from both the sides, taking into consideration and appreciating the documentary evidence and the statement of witnesses, convicted and sentenced the accused-appellant as above vide judgment dated 18/01/2017. Hence this appeal. 9. We have heard learned amicus curiae appearing on behalf of the accused-appellant and the learned Public Prosecutor. 10. Shri Ashok Kumar Upadhyay, learned Amicus Curiae appearing on behalf of the accused-appellant has vehemently and fervently argued that this is a case of circumstantial evidence. The prosecution has failed to prove the allegations levelled against the appellant beyond all reasonable doubt. The chain of circumstances is not so complete which could indicate that it was none other than the appellant who was involved in the murder of his wife Neetu. Two brothers of the appellant, namely, Mohammad Hussain and Mohammad Rizwan have been acquitted in the case and, therefore, for the same reasons, learned trial Court should have acquitted the appellant as well because if the prosecution story is believed then one person alone cannot carry the dead body from the house of the appellant to the graveyard and, therefore, learned trial Court was not correct in convicting the appellant for the offences alleged in the case. 11. He further contends that it has come on record that the appellant along with his two brothers were brought to the Police Station on 09/04/2013 itself, however, his formal arrest has been shown on 10/04/2013. The police has manipulated the memos in order to falsely implicate the present appellant. 12. 11. He further contends that it has come on record that the appellant along with his two brothers were brought to the Police Station on 09/04/2013 itself, however, his formal arrest has been shown on 10/04/2013. The police has manipulated the memos in order to falsely implicate the present appellant. 12. He further contends that the star witness of the prosecution i.e. PW.3 Azam Khan has been declared hostile, therefore, the entire prosecution story is highly doubtful. 13. On the strength of the submissions made above, learned amicus curiae for the appellant has prayed that the present appeal deserves to be allowed and the appellant is entitled to be acquitted of the charges levelled against him by setting aside the judgment dated 18/01/2017 passed by learned trial Court. 14. Per contra, learned public prosecutor, while supporting impugned judgment dated 18/01/2017 has vehemently and fervently argued that the prosecution had been able to prove the charges levelled against the accused-appellant beyond all reasonable doubt. He contends that the deceased was staying with Imran and if at all she had been missing from the house of the appellant then it was his duty to make an enquiry regarding her whereabouts. But there is nothing on record to show that any such effort was made by the appellant for tracing her. 15. He further contends that since the deceased was staying with the appellant then circumstances leading to her disappearance would have been best known to the appellant alone. He further urges that the relationship between the couple was not cordial. 16. The appellant has not given any explanation about the factum of disappearance of his wife which was especially within his knowledge, therefore, he has not satisfactorily discharged his burden as per Section 106 of the Indian Evidence Act. The other corroborating circumstances clearly prove the involvement of the appellant in the murder of his wife. 17. He further contends that the dead body was recovered vide Recovery Memo (Ex.P.3) in furtherance of the information (Ex.P.40) supplied by the appellant under Section 27 of the Indian Evidence Act. The recovery of the dead body and the cause of death as per the postmortem report (Ex.P.28) being asphyxia due to throttling concretely establishes the fact of involvement of the appellant in the murder of his wife. 18. The recovery of the dead body and the cause of death as per the postmortem report (Ex.P.28) being asphyxia due to throttling concretely establishes the fact of involvement of the appellant in the murder of his wife. 18. The recovery of bloodstained Chunni (Ex.P/.5) was made on the information (Ex.P.43) supplied by the accused-appellant under Section 27 of the Indian Evidence Act. The bloodstains on Chunni, pieces of floor and pant matched with the blood group of deceased Neetu i.e. 'AB' as per the FSL Report Ex.P.28 which provides yet another link to connect the appellant with the commission of offences alleged in the case. 19. On the strength of these arguments, learned public prosecutor submitted that the prosecution has proved the charges levelled against the accused-appellant beyond all manner of doubt and, therefore, learned trial Court was perfectly justified in convicting the appellant for the offences alleged vide judgment dated 18/01/2017. 20. We have considered the submissions made at bar and have minutely sifted through the record of the case as well as the impugned judgment dated 18/01/2017 rendered by the trial Court. 21. Pw.1 Jagdish Harijan being uncle of the deceased stated that appellant was staying with Neetu in a rented house. He affixed his signatures on the memos prepared by the police during the course of investigation. During the cross-examination, this witness deposed that Devilal is his real brother. He & Devilal were staying in a separate house at Sanjay Colony. His niece Neetu had performed a love marriage with the appellant Imran and both were staying together in a rented accommodation. He had never visited their house. He was told about the incident in the evening of 9th April, 2013. He accompanied his brother to the police station for lodging the report. 22. Pw.2 Devilal being father of the deceased stated that his daughter Neetu was married to Imran for about two and half years. It was a love marriage. They had 6-7 months' old son. Whenever Neetu met him, she often complained about the harassment and maltreatment meted out to her by the appellant. On 09/04/2013 at around 6 p.m. Azam Khan( PW.3) came at his residence and told him that Neetu had been murdered by appellant last night. The appellant and his two brothers buried the dead body during the night. Whenever Neetu met him, she often complained about the harassment and maltreatment meted out to her by the appellant. On 09/04/2013 at around 6 p.m. Azam Khan( PW.3) came at his residence and told him that Neetu had been murdered by appellant last night. The appellant and his two brothers buried the dead body during the night. When he went to the colony where Neetu was staying and enquired about the incident, he realized that whatever Azam Khan told him was correct. His daughter has been murdered by Imran and his brothers. He reported the matter to the police and went to the house of appellant along with police. 23. Pw.3 Azam Khan was although declared hostile, yet he testified that he went to the house of Devilal (PW.2) and informed that he should find out the whereabouts of Neetu. During his cross-examination, this witness stated that the residents of the colony were talking about disappearance of Neetu and, therefore, he went and informed PW.2 Devilal. 24. Pw.10 Deravar Singh is the Police Officer who partly investigated the matter and thereafter PW.11 Somkaran Charan completed the investigation. 25. P.W. 11 Somkaran Charan stated that during the course of investigation, he recorded statements of witnesses, collected samples, prepared memos in accordance with the provisions of law. 26. Pw.6 Dr. Kamlesh Purohit who was a Member of Medical Board conducted the autopsy upon the dead-body of the deceased Smt. Neetu and described the dimensions and places of injuries present on the body of deceased and stated that the cause of death was asphyxia due to throttling. 27. The postmortem report is Ex.P.28 wherein the cause of death was opined to be asphyxia as a result of throttling. FSL Report is Ex.P.35 wherein 'AB' group blood was found on the bloodstained Chunni, Pieces of Floor and Pant (Trouser). Recovery memo of bloodstained Chunni is Ex.P.5 which was recovered on the information (Ex.P.43) supplied by the accused appellant under Section 27 of the Indian Evidence Act. The recovery memo of dead body of the deceased is Ex.P.3 which too was recovered on the information supplied by the appellant under Section 27 of the Indian Evidence Act is Ex.P.40. 28. The undisputed fact which has come on record is that the appellant was married to Neetu. It was a love marriage. Neetu was staying with her husband Imran in a rented premises. 28. The undisputed fact which has come on record is that the appellant was married to Neetu. It was a love marriage. Neetu was staying with her husband Imran in a rented premises. The appellant used to harass and assault her as she often complained of the same to her father. Thus, the fact that the deceased was in the company of the appellant is proved beyond any doubt. The burden to prove anything to the contrary would be on the appellant who failed to provide any proof in this regard other than making a bald aspersion in his 313 Cr.P.C. statement. 29. On the fateful night, when Neetu was assaulted and murdered, the floor of the room and the pant (trouser) of the appellant got bloodstained with the blood of the deceased. Thereafter, her dead body was taken to the graveyard and buried in the night. We note that statement of the appellant under Section 313 Cr.P.C falls flat to the ground for the reason that when the husband and wife both were staying in a rented premises and if Neetu(wife) of the appellant was missing, the normal and natural conduct of the appellant should have been to make all efforts and endeavours to find the whereabouts of his wife. Such efforts or endeavours are conspicuously missing in the case. Therefore, it can be safely presumed that the appellant was in the company of his wife Neetu. 30. The recovery of dead body of Neetu from the graveyard on the information supplied by the appellant under Section 27 of the Indian Evidence Act is an important fact as on the next morning, the place was identified by the appellant from where the body was exhumed. As per the memo (Ex.P3), the body was partially buried and had been mutilated by animals. Thus, the hurried manner in which the body was partially buried also shows that the appellant wanted to dispose of the body in the hot haste so that it may not be noticed by anybody. Normally nobody other than a person belonging to Muslim Community can generally enter in the Kabristan/graveyard and the appellant is a Muslim, therefore, it can be presumed that the deceased was taken to Kabristan/graveyard by none other than the appellant. Normally nobody other than a person belonging to Muslim Community can generally enter in the Kabristan/graveyard and the appellant is a Muslim, therefore, it can be presumed that the deceased was taken to Kabristan/graveyard by none other than the appellant. After the body was exhumed, the postmortem was conducted which shows the presence of injuries on the body of the deceased and the cause of death was reported to be asphyxia due to throttling. Besides, the recovery of bloodstained Chunni, pant (trouser) of the accused and the bloodstained pieces of floor of the room of appellant having the blood group of deceased i.e. 'AB' completes the chain of circumstances fortifying the fact that it was none other than the appellant who was involved in the murder of his wife Neetu. 31. The argument of learned Amicus Curiae that two of the coaccused i.e. brothers of the appellant have been acquitted by learned trial Court on the same set of evidence and, therefore, parity should have been maintained is noted to be rejected as the appellant cannot be absolved of the charges which have been proved beyond all reasonable doubt by the prosecution, as discussed above. 32. The argument with respect to the fact of appellant having been arrested on the same evening and arrest memo being prepared on 10/04/2013 is of very little importance as it is a general practice that if the Investigating Agency has a reasonable doubt on any person then during the course of investigation that person can be interrogated and after the Investigating Agency is satisfied and has a reason to believe that the person is involved in the commission of offence then only a formal arrest is made. 33. The argument with respect to declaration of PW.3 Azam Khan as hostile is of no significance in the case as the other chains in the links of circumstantial evidence established against the appellant are sufficient to prove the offences alleged against him beyond all manner of doubt. 34. In our view, the chain of circumstances in the present case is so complete which indicates that it was the appellant alone and none else who had committed the murder of Neetu and, therefore, learned trial Court was perfectly justified in convicting the appellant for the offence alleged in the present case. 35. The Hon'ble Supreme Court in the case of Sonu @ Amar Vs. 35. The Hon'ble Supreme Court in the case of Sonu @ Amar Vs. State of Haryana , (2017) AIR SC 3441 has held that in the case of circumstantial evidence, certain principles are to be followed which are as under: "1. The circumstances from which an inference of guilt is sought to be proved must be cogently or firmly established. 2. The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. 3. The circumstances taken cumulatively must form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. 4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 36. In the wake of the above discussion, we do not find any merit in the present criminal appeal and the same is, accordingly, dismissed. The judgment dated 18/01/2017 passed by trial Court is upheld. The record of the trial court be returned forthwith.