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2022 DIGILAW 179 (ALL)

Noor Fatima v. State of U. P.

2022-02-11

SUBHASH VIDYARTHI, VIVEK KUMAR BIRLA

body2022
JUDGMENT : Subhash Vidyarthi, J. 1. Heard Sri Akash Deep Srivastava, learned counsel for the appellant and Sri Ratan Singh, learned AGA for the State on admission of the appeal and perused the record. 2. The respondents-accused were charged for committing an offence under Section 364, 302 and 201 IPC in Case Crime No.56 of 2012, P.S. South, District, Firozabad. 3. The prosecution case, briefly stated, is that on 07.01.2012, the informant Noor Fatima gave a typed information to the Superintendent of Police, firozabad stating that her son Furkan had enticed away Sindal daughter of Late Khalil and had married her after running away from the home. Danish (respondent no.2) brother of Sindal used to keep animosity from the informant’s son and Danish forcibly took away his sister Sindal from the informant’s house. Thereafter he got a forged Talaknama prepared. It is alleged that Danish used to beat and threaten the informant’s son. On 1.1.2012 at about 08:00 P.M., informant’s son Furkan received a call on his mobile no. 7417110595 and when she asked her son that who had made phone call, she said that Zubair alias Chapta (respondent no.3) had made the phone call and he left home. Nadeem son of Manjoor and Irfan son of Zahid had seen Furkan with Zubair alias Chapta at Urvashi Chauraha at 08:30 P.M. and Danish was also standing there at a short distance. Since then informant’s son did not return home. The informant alleged that Danish and Zubair alias Chapta have abducted her son along with their companions and they have killed her son. During trial, as many as nine witnesses were produced by the prosecution to prove its case. Accused produced Mohd. Monis as D.W.-1. The learned Trial Court has stated that as the case is based on circumstantial evidence, motive for committing the murder assumes much significance. The informant Noor Fatima (P.W.1) has stated in the FIR that her son had enticed away and married Danish’s sister Sindal and due to this Danish used to keep animosity against Furkan. Danish is a man of criminal nature. Along with his accomplices, Danish threatened and forcibly took away Sindal from the informant’s house and he got a fictious Talaknama prepared. However, in her cross examination, P.W.1 stated that Danish or any member of his family did not register any case against Furkan. Danish is a man of criminal nature. Along with his accomplices, Danish threatened and forcibly took away Sindal from the informant’s house and he got a fictious Talaknama prepared. However, in her cross examination, P.W.1 stated that Danish or any member of his family did not register any case against Furkan. She expressed ignorance regarding whether both the families were at talking terms or whether there was any tension between their families. 4. Analyzing the statements of the witnesses to ascertain the motive for committing the offence, the learned Trial Court held that as the informant herself stated that Danish had pressurized his sister and she had been taken away to her home, the motive for murder could have vanished. But at this stage it cannot be denied that he might be having some annoyance for the reasons that the deceased had taken away his sister and had married her. Therefore, Danish had a motive to kill the deceased. 5. The deceased is said to have gone missing on 01.01.2012 and the informant reported matter to the Superintendent of Police, Firozabad on 07.01.2012. The Superintendent of Police instructed the Sub-Inspector concerned to lodge an FIR on the same day. Even after the superintendent of Police had issued a direction for lodging the FIR on 07.01.2012 and had handed over the application to the informant herself, she did not go to the police station till as late as on 15.01.2012. The explanation given by the informant that the accused persons used to threaten her, was not found to be believable as she clearly stated that she kept on visiting the police station and when the police did not register her report, she had submitted the application to the Superintendent of Police. Taking into consideration all these facts, the learned court below recorded a finding that in spite of the Superintendent of Police having issued a direction for registration of the FIR on 07.01.2012, the failure of the informant to lodge the FIR for eight more days clearly indicates that the informant has lodged the FIR with delay, for which no explanation has been given by her. 6. In the present case, there is no direct evidence to prove the guilt of the accused persons and it is a case of circumstantial evidence. 6. In the present case, there is no direct evidence to prove the guilt of the accused persons and it is a case of circumstantial evidence. It is obligatory upon the prosecution to form a chain of circumstances so complete that there is no evidence from the conclusion that the crime was committed by the accused persons. The informant alleged that the deceased Furkan had received a phone call on his mobile no. 7417110595 and he told him that Zubair alias Chapta had made the phone call. Furkan left immediately after receiving the call. However, the Investigating Officer did not obtain call details record of the mobile number of the deceased, which was a serious error in carrying out investigation of the case and due to which it cannot be ascertained as to whether the accused Zubair alias Chapta had made a phone call on the number of the deceased or not and no finding to this effect could be recorded in absence of the call details record. 7. Regarding the allegation that the deceased was last seen with the accused persons, learned Trial Court analysed the statement of the prosecution witnesses and found that there were serious contradictions in the statements of P.W.2 Irfan. In his cross examination, P.W.2 stated that on 01.01.2012, he and his uncle Nadeem had seen the deceased with Zubair alias Chapta and Danish was standing at some distance. P.W.2-Irfan stated that after returning from the godown he had gone to his uncle’s home without having his dinner. He stated that when he returned from the godown, Furkan was at his residence. After returning from the godown he had dinner but Furkan did not eat with him. At one place he stated that Furkan left hom after he had gone from there while at another place he stated that Furkan left in his presence wearing grey colour pants. Then P.W.2-Irfan has made self contradictory statements in his cross examination due to which the learned Trial Court has found his statements notworthy of belief. 8. P.W.2- Irfan stated that when he last saw Furkan with the accused Zubair alias Chapta, Nadeem was also there but the prosecution did not examine Nadeem as witness. 9. Then P.W.2-Irfan has made self contradictory statements in his cross examination due to which the learned Trial Court has found his statements notworthy of belief. 8. P.W.2- Irfan stated that when he last saw Furkan with the accused Zubair alias Chapta, Nadeem was also there but the prosecution did not examine Nadeem as witness. 9. The prosecution relied upon a decision of the High Court in Heera Lal and others vs. State of U.P., 2011 (8) ADJ 189 : 2011 (75) ACC 8, in which the High Court has held that “the prosecution is not bound to produce all the ocular witnesses to prove a particular fact. It is the quality and not quantity of evidence which matters more in criminal cases to prove a particular fact. No adverse interference can be drawn against the prosecution on the ground of non-examination of other ocular witnesses of the incident.” However, as in the evidence must be corroborated by examination of an independent witness. In the present case, P.W.2-Irfan is the real brother of deceased-Furkan and as such, he is an interested witness and there are material self contradictions in his statement, the other witness Nadeem ought to have been examined by the prosecution but it has not been done. P.W.-3, Afsar has also stated that he did not see the deceased-Furkan with the accused persons. He stated that although he saw the deceased-Furkan for the last time on 01.01.2012 but does not recognize the persons, who were sitting with the deceased-Furkan. After examining and analyzing the statements of prosecution witnesses, the learned Trial Court came to a conclusion that the prosecution could not establish that the deceased was last seen with the accused persons. 10. The prosecution case was that after the arrest of accused persons on 15.01.2012 and on their pointing out the knife used in the murder, the clothes of the deceased, a skeleton and shoes were recovered from Bhuda Nahar and the deceased's brother P.W.-2-Irfan identified the skeleton on the basis of his clothes and no such evidence was produced by the defence to doubt the identification of the dead body of the deceased. However, independent witness of recovery, P.W.-3 Afsar has stated that no knife was recovered in his presence. P.W.-7 and P.W.-9, the Investigating Officers have stated that knives were not sent for forensic examination. However, independent witness of recovery, P.W.-3 Afsar has stated that no knife was recovered in his presence. P.W.-7 and P.W.-9, the Investigating Officers have stated that knives were not sent for forensic examination. It could only be ascertained by a forensic examination as to whether there was human blood on the knives or not but this has not been done by the Investigating Officers. Further the sample of soil from the place of alleged occurrence has not been taken and sent for forensic examination. For these reasons, the alleged knives recovered cannot be connected with the incident so as to prove that the same were used in committing murder of the deceased. 11. The skeleton received had some flesh only on the toes of foot and there was no flesh on any other part of the body. The skeleton consisted of only skull, nose, the bones of upper and lower jaws and there were only 13 partial ribs and ten rings of spinal cord and parts of the hip bones of both sides. 12. The Investigating Officer P.W.-9 has stated that the skeleton was found in the canal and there were a jacket, shoes and socks on the skeleton. He has stated that in both the sleeves of the jacket, some portion of the hand were there which had been torn away by the animals but this statement was not supported by the statement of P.W.5-Dr. Prakash Mohan, who carried out the postmortem. He has stated that there were no signs of animal bite on the skeleton. P.W.-4, Dr. Suresh Chandra Mittal, Government Medical Jurisprudence Expert has stated that a dead body gets converted into a skeleton within a period of one to three months and it depends upon the place from where the body is found. As per the statement of P.W.-4, even the minimum duration within which a dead body is converted into a skeleton is one month. In the present case, the period between disappearance of the deceased and recovery of skeleton is merely 15 days and it is not possible that during this period a dead body can get converted into skeleton having no pieces of flesh on it. 13. The learned Trial Court has also taken into consideration the fact that for establishing that the skeleton recovered was of the deceased-Furkan. 13. The learned Trial Court has also taken into consideration the fact that for establishing that the skeleton recovered was of the deceased-Furkan. It was incumbent upon the prosecution to conduct a DNA test which was not done in the present case. P.W.-4 has stated that on the basis of X ray only, he could not tell as to whether the skull and the other body parts of the skeleton were of the same person or not. He further stated that, he ascertained the age of the deceased from his skull. As the hip bones were not complete and only a part of which was found, the age of deceased could not have been ascertained from the hip bones. For ascertaining as to whether the skull and the bones of the other parts of body belonged to the same person, DNA test was necessary, which was not done. 14. P.W-7 the Investigating Officer has stated that requisite documents relating to the skeleton were not sent to the forensic laboratory and a report was prepared merely on the basis of X-Ray. During this period, the skeleton was kept in the police station but no entry of this fact was made in the general diary. In these circumstances, there is an apprehension regarding proper preservation of skeleton kept in the police station as also against the identity of the same to ascertain as to whether the skeleton on which the postmortem was conducted and the skeleton on which the X-Ray was the same as was recovered in this case. However, the prosecution could not prove these facts. 15. Regarding the clothes and shoes recovered with the skeleton, the learned Trial Court has taken into consideration the evidence on record and has observed that the informant has not described that the deceased was wearing the aforesaid clothes when he left his home for the last time. In the statement of the informant and Nadeem recorded under Section 161 Cr.P.C. also these persons did not give any information regarding the clothes worn by the deceased. In the statement of the informant and Nadeem recorded under Section 161 Cr.P.C. also these persons did not give any information regarding the clothes worn by the deceased. The Investigating Officer has stated that the jacket and jeans were present on the skeleton but the court below has disbelieved this statement of Investigating Officer on the ground that as per the statements of the expert witnesses P.W.-4 and P.W.-5, the condition of the skeleton was such as makes it impossible that it had a jacket put on it and a jeans tied around its waist. 16. Keeping in view the statement of expert witnesses, the learned court below came to a conclusion that the statement of the Investigating Officer in this regard is not believable. Even the other Investigating Officer P.W.-9 has admitted that the jacket was found near the body of the skeleton and not on it. Moreover the clothes on the basis of which the skeleton has been identified to be of Furkan are only jacket, jeans, shoes and socks but the other clothes such as shirt, vest and sweater etc. have not been recovered from the place of occurrence. After a thorough discussion of these facts, learned Trial Court has came to a conclusion that on the basis of the clothes it cannot be held that the skeleton was of the deceased-Furkan and while arriving at this conclusion, the learned Trial Court has also kept into consideration the fact that the clothes which are said to have been recovered from the place near the skeleton, have not been produced before the court. 17. After a detail analysis of the entire evidence, the learned Trial Court has arrived at a finding that in a case based on circumstantial evidence the prosecution has failed to complete the chain of circumstances implicating the accused persons for committing the alleged offence. It is a settled principle of law that an accused person cannot be penalized only on the basis of motive. The prosecution could not prove that the deceased was last seen with the accused persons. It could not establish that the recovered skeleton was of the deceased-Furkan. It is a settled principle of law that an accused person cannot be penalized only on the basis of motive. The prosecution could not prove that the deceased was last seen with the accused persons. It could not establish that the recovered skeleton was of the deceased-Furkan. As per the principles of medical jurisprudence as well as the statement of the expert witness, it was not possible that within a period of 15 days from the disappearance of the deceased, his body could have converted into a skeleton having no flesh on it. The DNA test of recovered skeleton was also not conducted. So the prosecution could not establish as to whether the skull and other bones of the body of the recovered skeleton were of the same person or not. There were severe discrepancies in the statement of clothes found from the place of occurrence. Keeping in all these facts, the Trial Court has recorded that it cannot be said that the prosecution could not establish its case only because of the defects in investigation and the evidence adduced by the prosecution could not establish even a single link of the chain to prove the guilt of the accused persons. Accordingly, the Trial Court acquitted all the accused persons for the charges leveled against them. 18. Sri Akash Deep Srivastava, learned counsel for appellant has assailed the aforesaid judgment and order of acquittal mainly on the ground that the accused persons had a motive for committing murder of the deceased. He has also submitted that the dead body of the deceased and the weapon used in the murder were also recovered at the pointing out of the accused persons. The body of the deceased was identified by the informant in presence of the Investigating Officer. The sole ground for acquittal of the accused persons is that the prosecution did not get a DNA examination conducted which was not required in as much as the brother of the deceased had identified the dead body of the deceased and, therefore, there is no doubt regarding the identification of the dead body of the deceased. His submission is that when the prosecution has clearly established the motive behind the murder of the deceased, then merely because of certain negligence during investigation by the Investigating Officer, an order of acquittal cannot be passed. 19. His submission is that when the prosecution has clearly established the motive behind the murder of the deceased, then merely because of certain negligence during investigation by the Investigating Officer, an order of acquittal cannot be passed. 19. So far as the submission of learned counsel for appellant that the accused persons had a motive to commit murder of the deceased, we may see that although, in a case based on circumstantial evidence, motive assumes significant, but the existence of motive alone can hardly be a ground for conviction in absence of other material sufficient to establish a single link of the chain to prove the guilt of the accused persons. 20. In Sampath Kumar v. Inspector of Police, (2012) 4 SCC 124 , the Hon’ble Supreme Court referred to and relied upon its previous decisions and proceeded to hold that motive alone can hardly be a ground for conviction. The relevant passage of the aforesaid judgment is as follows: - “29. In N.J. Suraj v. State the prosecution case was based entirely upon circumstantial evidence and a motive. Having discussed the circumstances relied upon by the prosecution, this Court rejected the motive which was the only remaining circumstance relied upon by the prosecution stating that the presence of a motive was not enough for supporting a conviction, for it is well settled that the chain of circumstances should be such as to lead to an irresistible conclusion, that is incompatible with the innocence of the accused. 30. To the same effect is the decision of this Court in Santosh Kumar Singh v. State and Rukia Begum v. State of Karnataka where this Court held that motive alone in the absence of any other circumstantial evidence would not be sufficient to convict the appellant. Reference may also be made to the decision of this Court in Sunil Rai v. UT, Chandigarh. This Court explained the legal position as follows: (Sunil Rai case, SCC p. 266, paras 31-32) “31. … In any event, motive alone can hardly be a ground for conviction. 32. On the materials on record, there may be some suspicion against the accused, but as is often said, suspicion, howsoever strong, cannot take the place of proof.” 21. This Court explained the legal position as follows: (Sunil Rai case, SCC p. 266, paras 31-32) “31. … In any event, motive alone can hardly be a ground for conviction. 32. On the materials on record, there may be some suspicion against the accused, but as is often said, suspicion, howsoever strong, cannot take the place of proof.” 21. Regarding the second contention of learned counsel for appellant that the dead body and the weapon used in the murder were recovered at the pointing out of the accused persons and the body was identified by the informant in presence of the Investigating Officer, the learned court below examined the evidence on record in minute details and after a detail examination of the same has recorded a finding that the body recovered was merely a skeleton with only traces of flesh on the toes of foot and it was not possible that a dead body can be converted into such a skeleton within a short period of merely 15 days. Moreover, the skeleton was also not complete and the P.W.4-Government Medical Jurisprudence Expert stated that the hip bone was not complete and age determination was not possible from it. The age of the deceased had been determined from the skeleton. It could have been established as to whether the skull and the remaining body of the skeleton is of the same person or not, could have been established only by a DNA test which has not been done. Since, it is a case based on circumstantial evidence, the opinion of the expert witnesses namely P.W.-4 the Government Medical Jurisprudence Expert and P.W.-5, the doctor who conducted the postmortem examination of the dead body assumed a greater significance. The statements of witnesses regarding recovery of clothes are also contradictory as the prosecution could not establish the complete chain of circumstances to establish the guilt of the accused persons. 22. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213 , the Hon’ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against an order of acquittal passed by a Trial Court in the following words : “The power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ‘possible view’. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re-appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact.” 23. After a thorough scrutiny of statements of witnesses, we find that the judgment of the Trial Court acquitting the accused persons is based on a proper appreciation of the evidence and the findings of the court below are not perverse and it needs no interference by this Court. 24. In view of the aforesaid discussion, we are of the view that there are no sufficient ground for admitting the appeal. The appeal is dismissed summarily at the stage of admission.