Research › Search › Judgment

Uttarakhand High Court · body

2022 DIGILAW 56 (UTT)

Sakir Ali v. State of Uttarakhand

2022-03-24

R.C.KHULBE, S.K.MISHRA

body2022
JUDGMENT : S.K. MISHRA, J. 1. In this appeal, convict appellant Sakir Ali has assailed his conviction under Section 302 of the Indian Penal Code (hereinafter referred to as the “Penal Code” for brevity) and sentence to undergo imprisonment for life and to pay a fine of Rs. 10,000/- and in default, to further undergo simple imprisonment for six months recorded by the Additional Sessions Judge, Khatima, District-Udham Singh Nagar, in Sessions Trial No. 293 of 2011 (F.I.R. No. 119 of 2011, police station - Sitarganj, District - Udham Singh Nagar) as per the judgment dated 10.07.2014. 2. The case of the prosecution, in short, is that around the year 2000, appellant and the deceased were married; they were blessed with 07 (seven) children; about a year prior to the occurrence, the appellant developed illicit relations with one Sarla Begum, resident of village - Lalpur, police station - Kichcha; they eloped; the deceased was residing with her children in Sisaiya Bhatta and earning her livelihood by doing labour. The prosecution further alleged that the appellant was frequently visiting the house of deceased, situated at Sisaiya Bhatta along with his paramour - Sarla Begum and he used to assault the deceased in order to evict the deceased and their children from the house. However, the deceased continued to stay in that house along with her children. It is further alleged that the appellant was assaulting the children also and threatened that they should leave their house, so that he could reside with other woman therein. The appellant met the complainant (PW-6 Rifaqat) on 15.07.2011 in Kichcha and he gave a threat to the complainant (PW-6 Rifaqat) saying that he should take away his sister and her children from that house, otherwise, he would kill the deceased. On 20.07.2011, the appellant came to the house at Sisaiya Bhatta along with his paramour and on the next day i.e. 21.07.2011, in the morning, dead body of the deceased was found in the open field. Since the complainant, being the brother of the deceased, believed that the appellant has committed murder of the deceased along with his paramour, he submitted a report in Sitarganj Police Station. 3. On such report, an FIR No. 119 of 2014 was registered under Sections 302, 201, 120B of the Penal Code. The Investigating Officer took up the investigation of the case. 3. On such report, an FIR No. 119 of 2014 was registered under Sections 302, 201, 120B of the Penal Code. The Investigating Officer took up the investigation of the case. During the course of investigation, he held an inquest on the dead body of the deceased; post mortem of dead body was conducted; he has examined the witnesses, who are relevant to the case; and, on completion of investigation, he submitted charge-sheet for the offences mentioned, supra, against the appellant and Sarla Begum. 4. The accused took a plea of simple denial and false accusation by the prosecution. 5. The prosecution in order to prove its case, examined ten witnesses on its behalf. PW-4 Km. Sayra, happens to be the daughter of the appellant and the deceased. She has stated about the presence of the appellant along with his paramour in their house in the night, preceding the recovery of the dead body of the deceased from the open field. PW-6 Rifaqat is the informant of the case. He told about the estranged relationship between the deceased and the appellant; assault on the deceased by the appellant. PW-2 Shahid Ali is the witness on whose evidence learned Additional Sessions Judge, Khatima, District-Udham Singh Nagar, has relied upon heavily to come to the conclusion that the prosecution has proved its case beyond reasonable doubt. He stated about the last seen of the appellant with the deceased at about 11:00 p.m. on 20.07.2011. PW-1 Chand Ali has stated that he saw the accused travelling in bus towards Kichcha. Rest of the witnesses are formal witnesses. PW-7 Lady Constable Beena Goswami is a witness of the inquest. PW-5 Dr. I.A. Khan has conducted post mortem examination on the dead body of the deceased. PW-8 Zahid Ali is also a witness of the inquest. PW-9 Dharm Singh is a Sub-Inspector. PW-10 Uttam Singh is the S.H.O. and Investigating Officer of this case. In addition to the aforesaid examination of witnesses, the prosecution has also led evidence of about 15 (Fifteen) exhibits. On behalf of the defence, four witnesses namely DW-1 Sazid, son of Sakir, DW-2 Mohd. Asif Ali, DW-3 Quttubuddin and DW-4 Sajid S/o Shakir were examined. 6. The learned Additional Sessions Judge mainly relying upon the evidence PW-1 Chand Ali, PW-2 Shahid Ali, PW-4 Km. On behalf of the defence, four witnesses namely DW-1 Sazid, son of Sakir, DW-2 Mohd. Asif Ali, DW-3 Quttubuddin and DW-4 Sajid S/o Shakir were examined. 6. The learned Additional Sessions Judge mainly relying upon the evidence PW-1 Chand Ali, PW-2 Shahid Ali, PW-4 Km. Sayra and PW-6 Rafaqat and came to the conclusion that the prosecution has proved its case beyond reasonable doubt. He reflected in the judgment impugned that the evidence of PW-4 Km. Sayra is corroborated by PW-1 Chand Ali and PW-2 Shahid Ali. In the impugned judgment, the learned Additional Sessions Judge has observed that PW-1 Chand Ali stated that appellant was travelling to Sisaiya Bhatta by bus, PW-4 Km. Sayra saw her father in their house in the night along with his mother and they were talking each other. He further held that as per the evidence of PW-2 Shahid Ali, they were seen near the pond (Talaab) together on the footpath (Pagdandi) and on the next date, the dead body of the deceased was found in the open field. The learned Additional Sessions Judge has further held that in the examination under Section 313 of the Criminal Procedure Code, 1973, (hereinafter referred to as “Code” for brevity), the appellant has not explained these facts appearing against him nor has given any evidence in defence of his case. 7. In that view of the matter, the learned Additional Sessions Judge came to the conclusion that the prosecution has proved its case beyond all reasonable doubt and convicted the appellant under Section 302 of the Penal Code but acquitted the appellant of the charge of offences under Section 201 and 120B of the Penal Code and also acquitted accused no. 2- Sarla Begum, wife of Shri Rahmat Ali, of the charge of offences under Section 302, 201 and 120B of the Penal Code. 8. Assailing the judgment of conviction and order of sentence, Ms. Shruti Joshi, learned counsel for the appellant would argue that the prosecution has not established its case beyond reasonable doubt and in fact, no incriminating material has been led into evidence by the prosecution in this case against the appellant. 8. Assailing the judgment of conviction and order of sentence, Ms. Shruti Joshi, learned counsel for the appellant would argue that the prosecution has not established its case beyond reasonable doubt and in fact, no incriminating material has been led into evidence by the prosecution in this case against the appellant. She would criticize the evidence of PW-2 Shahid Ali - the only witness, who has stated about the last seen of the appellant in the company of the deceased at 11:00 p.m. on 20.07.2011, in the sense that this witness has not stated about this occurrence, for one and a half month before anybody and after one and a half month, he stated about this fact before the Police allegedly because of his conscience told him to do so. She would also criticize the evidence of this witness on the ground that in the cross examination he has admitted that when he came to depose in the Court, he had written the relevant dates on his palm and, therefore, she would submit that this witness is a tutored witness. As far as PW-4 Km. Sayra is concerned, learned counsel for the appellant would argue that it is all but natural for PW-4 to see her father talking to her mother in their house and it is not incriminating circumstances as far as, the appellant is concerned. 9. Learned counsel for the appellant would also emphatically argue that in this case, the Investigating Officer has not prepared the site plan showing the place where the appellant and the deceased were allegedly seen by PW-2-Shahid Ali on 20.07.2011 and the place where the dead body was found. In other words, learned counsel would also argue that the distance between the place where the appellant was allegedly last seen with the deceased and the place where dead body of the deceased was found, has not been shown. In other words, she would submit, the distance between the two places has not been objectively determined by the Investigating Officer. 10. She would also rely upon several judgments of the Hon’ble Supreme Court, which will consider in the succeeding paragraphs. Ms. Shruti Joshi, learned counsel for the appellant would argue that the learned Additional Sessions Judge has convicted the appellant only on conjecture and surmises and has come to patently erroneous conclusions. 11. Mr. 10. She would also rely upon several judgments of the Hon’ble Supreme Court, which will consider in the succeeding paragraphs. Ms. Shruti Joshi, learned counsel for the appellant would argue that the learned Additional Sessions Judge has convicted the appellant only on conjecture and surmises and has come to patently erroneous conclusions. 11. Mr. J.S. Virk, learned Deputy Advocate General, on analysis of the evidence available on record, would argue that the prosecution has established that the death of the deceased was homicidal in nature and was as a result of strangulation. He would also argue that there was illicit relationship between the appellant and co-accused-Sarla Begum and that the appellant was assaulting his wife and children in order to throw them away from the house; appellant and Sarla Begum were residing together and both were absent from their house in the morning of 21.07.2011, therefore, learned Deputy Advocate General would argue that this is a fit case for upholding the conviction and findings recorded by the learned Additional Sessions Judge should be upheld in this appeal. 12. In a case of murder, the most important fact that needs to be established is homicidal nature of death of the deceased. Learned Additional Sessions Judge, after taking into consideration evidence available on record i.e. the oral testimony of PW-5 Dr. I.A. Khan and the contents of the post mortem examination has come to the conclusion that the death of the deceased was homicidal in nature, it has resulted because of strangulation leading to asphyxia. 13. Learned counsel for the parties have not disputed that the death of the deceased is homicidal in nature, therefore, we come to the conclusion that in view of the aforesaid observations of this Court, the finding of the learned Additional Sessions Judge that the death of the deceased was homicidal in nature, is not disputed in this case so there is no requirement of a detailed discussion of this aspect of the case. 14. As far as, the complicity of the appellant in the commission of crime of the crime is concerned, the prosecution relies on the following circumstances: (i) PW-1 Chand Ali has stated that on 20.07.2011, he saw the appellant coming to village - Sisaiya Bhatta by bus; and that the appellant was trying to hide his face. PW-4 Km. 14. As far as, the complicity of the appellant in the commission of crime of the crime is concerned, the prosecution relies on the following circumstances: (i) PW-1 Chand Ali has stated that on 20.07.2011, he saw the appellant coming to village - Sisaiya Bhatta by bus; and that the appellant was trying to hide his face. PW-4 Km. Sayra has stated, on oath, that appellant was present along with his paramour (Sarla Begum) in their house in the night of 20.07.2011. In the night, the appellant and deceased were talking each other. She further stated that whenever appellant and Sarla came to their house, her mother used to cook food in spite of the fact that Sarla would remain present in the house and that the appellant used to assault the deceased. (ii) That the appellant was having illicit relationship with Sarla Begum, who was married to another man. (iii) It is apparent from the record that appellant was seen with the deceased at about 11.00 p.m. in the night on 20.07.2011, near the footpath (pagdandi) (iv) Both appellant and Sarla Begum were absent from their house in the morning of 21.07.2011. 15. Taking into consideration each aspect one by one, we come to the conclusion that the most important aspect of the case is the statement of PW-4 Km. Saira, who stated that her father came to their house along with Sarla Begum on the night of 20.07.2011 but from the evidence available on record such visit to their house by the appellant along with his paramour is not unusual. In the past also, they have been visiting their house and on many occasions there was dispute between the deceased and the appellant; and appellant assaulted the deceased and children. Such incident had not happened for the first time on the alleged date of incident. Secondly, the finding recorded that the appellant was talking to the deceased at about 11.00 p.m. in the night is not an incriminating circumstance, as it is normal and natural for the appellant to visit his house and meet his wife and children and talk to his wife. 16. We are of the opinion the prosecution itself has relied upon the circumstances, which is not consistent only with the guilt of the appellant. 17. 16. We are of the opinion the prosecution itself has relied upon the circumstances, which is not consistent only with the guilt of the appellant. 17. Evidence of PW-2 Shahid Ali, which has been relied upon by the learned Additional Sessions Judge, heavily in the impugned judgment did not, in fact, enhance the case of prosecution though it may treated as one of the supporting fact if other witnesses are fully able to prove the guilt of the appellant. 18. As far as evidence of PW-2 Shahid Ali is concerned, we consider it appropriate to re-appreciate the same. PW-2 Shahid Ali has stated, on oath, that he went to his agricultural field as he was informed that a grave has been dug in his land; that on 20.07.2011 at about 11.00 p.m. he saw appellant and the deceased near the pond and they were going towards the road but he did not talk to them. In the cross examination, he stated that this incident took place on 20.07.2011 and till 07.09.2011, he did not speak about this incident to anybody and only on 07.09.2011 because of voice of his conscience, he went to the police station and revealed this fact before the Investigating Officer. No explanation has been given by him for the delay in making such disclosure. Why he did not reveal this fact to anybody, not necessarily to police, is not known. Moreover, it is apparent from the record that he kept silent for one and a half month, even though dead body was found on the very next day in the morning of 21.07.2011. In that view of the matter, case of the prosecution has become doubtful, though we hold that not in all cases where there is delay in disclosure by the prosecution witness, evidence shall not become susceptible or doubtful. But in the facts and circumstances of the present case, the evidence of this witness is doubtful and basing only on his evidence, we cannot come to the conclusion that actually deceased and appellant were seen alive for the last time together at about 11.00 p.m. near pond on the footpath (Pakdandi). Hence, we are of the opinion that learned Additional Sessions Judge has committed an error on record in relying upon the evidence of this witness to the hilt and believing that the prosecution has proved its case beyond reasonable doubt. Hence, we are of the opinion that learned Additional Sessions Judge has committed an error on record in relying upon the evidence of this witness to the hilt and believing that the prosecution has proved its case beyond reasonable doubt. We are of the opinion that there is a reasonable doubt regarding evidence of this witness. He cannot be a wholly reliable witness or even his evidence is not partly reliable and requiring us partly unreliable. His evidence cannot be accepted to convict the appellant. 19. The other aspect brought out by the learned counsel for the appellant before us is that this witness admitted in the cross examination that his memory is weak and he is unable to remember so he has written relevant dates and other information on his palm when he came to depose in the Court. 20. This witness appears to be a tutored witness. He deposed in the court by resorting to the information written on his palm. If we consider in entirety the evidence of this witness, we are of the opinion that PW-2 Shahid Ali is not a very reliable witness. Even record shows that the appellant was arrested on 16.08.2011 still this witness did not reveal this fact referred, supra, to anybody or to the police. 21. Another aspect brought out by the learned counsel for the appellant is that the time gap between the last seen and the death of the deceased is 8 hours, which rules out the possibility of the appellant being the only person, who could commit the murder. In this connection, reliance has been placed on the judgment passed by the Hon’ble Supreme Court in the case of State of Goa vs. Sanjay Thakran and Another, (2007) 3 SCC 755 . In that case, the Hon’ble Supreme Court has considered its earlier judgment in the case of Bodhraj vs. State of J&K, (2002) 8 SCC 45 . In that case, the Hon’ble Supreme Court has held that the last seen theory comes into play where the time-gap between the point of time, when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person, other than the accused being the author of the crime, becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long time gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In the cases of State of U.P. vs. Satish (2005) 3 SCC 114 and Ramreddy Rajesh Khanna Reddy vs. State of A.P. (2006) 10 SCC 172 same view has been taken by the Hon’ble Supreme Court. In the case Ramreddy Rajesh Khanna Reddy (supra) the Hon’ble Supreme Court opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration. In the case of Jaswant Gir vs. State of Punjab, (2005) 12 SCC 438 the Hon’ble Supreme Court has observed that in the absence of any other links in the chain of circumstantial evidence, it is not possible to convict the appellant solely on the basis of the ‘last-seen’ evidence, even if the version of PW-14 in this regard is believed. In the cases of Kanhaiya Lal vs. State of Rajasthan, (2014) 4 SCC 715 and Musheer Khan @ Badshah Khan vs. State of Madhya Pradesh, (2010) 2 SCC 748 similar view was taken by the Hon’ble Supreme Court. 22. Thus, on the conspectus of material available on record and the precedents guiding the field, we are of the opinion that this is not a case where prosecution has established its case beyond reasonable doubt that the deceased was last seen with the appellant alive soon before her death. There is considerable time gap between the alleged last seen and discovery of the dead body of the deceased. Moreover, the evidence of PW-2 Shahid Ali, a star witness of the prosecution, is not reliable. His statement cannot be made the sole basis of conviction of the appellant. There is considerable time gap between the alleged last seen and discovery of the dead body of the deceased. Moreover, the evidence of PW-2 Shahid Ali, a star witness of the prosecution, is not reliable. His statement cannot be made the sole basis of conviction of the appellant. We are of the opinion that prosecution has failed to establish complete chain of evidence unerringly pointing towards the guilt of the appellant and there is not enough evidence regarding the complicity of the appellant in commission of crime alleged. 23. In result, the Criminal appeal is allowed. Judgment and order dated 10.07.2014 passed by Addl. Sessions Judge, Khatima, District Udham Singh Nagar in Sessions Trial No. 293 of 2011 (State vs. Sakir Ali and Another) are hereby set aside. Appellant-Sakir Ali is held not guilty and is acquitted of the charge of offence punishable under Section 302 of the Penal Code. Appellant is in custody. He be set at liberty forthwith, if his detention is not required in any other criminal case.