Full Text
HIGH COURT OF DELHI
SHAMIMA KHATOON .....Appellant
Through: Mr. M.A. Niyazi, Amicus Curiae
Through: Mr. Ritesh Kumar Bahri, APP for the State
Insp. Kuldeep Singh, P.S. Kotwali
JUDGMENT
1. The present appealunder Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as, ‘CrPC’) has been filed assailing the judgment of conviction dated 19th January, 2002 and order on sentencedated 22nd January,2002passed by Mr. P.C. Ranga, Ld. Addl. Sessions Judge, Tis Hazari Court, Delhi, whereby the Appellant has been convicted in Sessions Case No. 23/2001 arising out of FIR No. 645/1999, registeredat Police Station Kotwali, under Sections 302/34 of the Indian Penal Code (hereinafter referred to as, ‘IPC’).
2. Vide theaforesaidimpugned judgementofconviction and order on sentence, the Appellant had been convicted for the offences punishableunder Sections302 and 34 of the IPC. The Appellant has been sentenced to undergo imprisonment for life and a fine of Rs. 1000/-, and in default of paymentoffine, to further undergo a rigorous imprisonment for a period of one month for the offences under Sections 302 and 34 of the IPC.
BRIEF BACKGROUND
3. Brief facts necessary for thedisposal of the present appeal are as follows: i) On 6th November, 1999, at 06:45 a.m., the Appellant lodged a missing report regarding her husband, Naushad, i.e., the deceased, who went missingafter he had left his jhuggi in Mool Chand Basti on thepreviousevening, i.e., on 5th November, 1999 at about 5 p.m. The Appellant further gave the description of her husband, Naushad. Based on thesaid information, DD No. 23A (Ex. P[4]) was recorded at P.S. Kotwaliby Head ConstableAttar Singh, PW-10. Theinformation of this incident was given to Police Control Room and a copy of the said DD was marked to one Pardeep Kumar, in-charge, P.P. Yamuna Pushta. On thesameday, theAppellant went to P.S. Darya Ganj and lodged another missing report of her husband, after which DD NO. 19A (Ex. P[3]) was recorded at about 9:30 a.m. ii) On 6th November, 1999 information was received by P.P. Yamuna Pushta of P.S. Kotwali regarding a dead body which was lying in the fields near the bank of River Yamuna. Based on the said information, DD No. 10 (Ex. PW-17/A, 18/A) was recorded at P.P. YamunaPushta ofP.S. Kotwali by Constable Rajeev Kumar, PW-17. A copy ofthe said DD was handed over to SI Naresh Kumar, PW-5. Thereafter, SI Naresh Kumar along with other police officials including Head Constable Mansab Ali, Constable Suresh and ConstableBrahmpalwent to theplace of occurrence, i.e., field of one Ganga Ram near Yamuna Pushta, IndiraColonyand foundthe corpse of an unknownmalelying there. Subsequently, the S.H.O., Inspector Rajaram, PW-18and InspectorUmesh Singh, PW-21reached thespot, after which PW-5 handed over DD. No. 10 to PW-18. iii) PW-18 then made an endorsement (Ex. PW18/A) and sent the ruqqa to P.S. Kotwali on the basis of which FIR No. 645/1999 was registered in the present case on 6th November, 1999 by ASI Shashi Gupta,PW-15. Further, PW-18 inspected the spot and prepared the unscaled site plan (Ex. PW-18/B). The crime team and the photographer were also summoned to photograph the spot, accordingly, thecrimeteam inspected the spot. PW-18 further seized blood-stained from thespotwhich was placed into sealed parcels and were taken into possession vide seizure memo (Ex. PW5/A). iv) PW-18 also removed theshoesofthe deceased which were then sealed and were also taken into possession vide seizure memo (Ex. PW5/B). Inquest proceedings were also conducted in respect of the deceased Naushad after he was identified by Mohd. Farooq (PW-2) and Mohd. Sagir (PW-3). Statementsofthesaid prosecutionwitnesses were also recorded by PW-18 as Ex. PW2/A and Ex. PW 3/A respectively. v) The body ofthedeceased was sent to Aruna Asaf Ali Hospital by PW-18 to conduct the post-mortem. Post-mortem was conducted by Dr. K. Goel, PW-1 and the report dated 8th November, 1999 (Ex.PW-1/A)was obtained. Asper the said report, the cause of death was determined as asphyxia caused due to ligature strangulation. vi) As per theReport, there were multiple abrasions with bruises, scattered over the right side of the forehead and multiple small abrasions scattered over the left elbow and left forearm of the deceased. It was opined that all the injuries were ante-mortem in natureand the ligature mark was caused by some hard flexible cord like ligature. Additionally, PW-1 stated that the mechanical pressure over the neck by ligature was sufficient to cause death in ordinary courseof nature. Thetimesince death was determined to betwo and a half days prior to conducting the post-mortem. vii) During the investigation, the Appellant was suspected for involvement in the murder of her husband. She was arrested three days later, on 9th November, 1999. Disclosure Statement of the Appellant was recorded (Ex. PW-5/E) on the same day, where she admittedher complicityin the murder ofher husbandNaushad. In the said statement, she disclosed certain facts regarding her illicit relationship with one Niyaz, with whom she made a plan to kill Naushad. In pursuanceof thesaid plan, on the night of 5th November, 1999, the Appellant and the deceased went for a walk after dinner during which she took him to the fields near Yamuna River. She further disclosed that Niyazand oneAkbarShah werealready present at the spot, after which Niyaz and Akbar Shah proceeded to strangulate Naushad which caused his death. After doing so, the Appellant proceeded to file a missingpersonreport on 6th November, 1999 at P.S. Kotwaliand P.S. Daryaganj respectively, in continuance of the sameplan. AkbarShah, one of the co-accused was arrested on 28th January,2000. Accused Niyazcould not betraced by thepoliceas he had escaped, and, therefore, he was declared as a proclaimed offender.
4. After the investigationwas concluded, charges were framed on 17th May, 2000by the learned Trial Court against the Appellant and co-accused Akbar Shah in furtherance of the common intention to causethe death ofNaushad by strangulation thereby murdering him and for committingan offencepunishableunder Sections 302/34 IPC. Both theAppellantand theco-accused AkbarShahpleaded not guilty to the aforesaid charges and claimed trial.
5. Prosecution has examined 21 witnesses in order to prove the charges levelled against theAppellantandtheco-accused AkbarShah. Learned TrialCourtafter examiningthetestimonies oftheprosecution witnesses andanalysingvariousotherevidences placed on record and statementsoftheAppellantandco-accused AkbarShahunder Section 313 of theCr.P.C. proceeded to acquit Akbar Shah as it did not find sufficient evidence on record to convict the said co-accused. The Appellant was, however, convicted and sentenced for the offence punishable under Sections 302/34 of the IPC, as already noted, hereinabove. Hence, thepresentappeal has been filed challenging the impugned judgment of conviction and order on sentence. In the presentappeal, vide order dated 4th March, 2003, the sentence of the Appellant wassuspended duringthependency of the appeal by a Ld. Division Bench of this Court.
SUBMISSIONS ON BEHALF OF THE APPELLANT
6. Vide order dated 9th April, 2024, Mr. M.A. Niyazi, ld. Counsel was appointedas an Amicus Curiae in the present matter in order to assist the Appellant. Learned Amicus, has addressed the following submissions on behalf of the Appellant: (A) Circumstantial Evidence i. Ld. Counselfor the Appellant submits that the present case is based entirely on circumstantialevidencewhich requires each chain of facts to be fully established pointing towards the guilt of the Appellant. He urged that the following facts brought forth by the prosecution need to be examined to identify whether they actually establish the guilt of the Appellant beyond reasonable doubt. The Counsel for the Appellant further raised following questions: (a)Whether theAppellant anddeceased were husband and wife or were living as husband and wife? (b)Whether they were living together in the jhuggi mentioned by the prosecution?
(c) Whether Naushad met and explained PW-2, Mohd Farooq and PW-3, Mohd Sagir abouttheproblems faced in his marital relationship becauseof theillicit relationship between Appellant and Niyaz or between Appellant and Niyaz & Akbar?
(d) Whether Naushadhad received any threats from Niyaz and
Akbar? (e) Whether PW-2 had met or seen Niyaz& Akbar together and then Naushad and Appellant together? (f) Whether PW-2 saw allfour persons going towards Yamuna river in the night around 10:00 p.m. on 05th November, 1999? (g) Whether Naushadand Appellant were last seen together on 5th November, 1999 around 10 p.m. pm before the death of Naushad ? (h) Whether the Appellant lodged missing report of Naushad dated 6th November 1999 alleging that Naushad was missing since around 5 pm on 5th November,1999?
(i) Whether themissingreportsDD No. 23A and DD. No. 19A appear to be genuine?
(j) Whether Appellant wascorrectlyapprehendedby thepolice? (k) Whether acquittal of Akbar Shah breaks the chain of circumstances in the prosecution case, if at all any chain is made qua the accused Appellant?
(l) Whether thechain of events is completeand points towards the guilt of the Appellant? ii. Learned Counselplaces relianceon the followingjudgements to summarize the law laid down by the Hon’ble Supreme Court regarding circumstantial evidence: a) Ramanand alias Nandlal Bharti v. State of Uttar Pradesh[1], b) Rahul v. State of Delhi & Anr.[2]
3) and Smt. Shama (PW-6). It is argued that testimony of PW-2 has several contradictions and infirmities. It is submitted that PW2’s testimony is not believableas he has met the deceased only twice i.e., once ten days before the incident on 6th November, 1999 and, thereafter,oneday beforethedead body was recovered. It is submitted that PW-2 is related to the deceased as the deceased was his saadu’s son. Theentirecase of theprosecutionis based on testimony of PW-2 to the effect that helast saw the Appellant- Shamima Khatoon along with the deceased on 5th November, 1999 in the evening at about 10:00 p.m. and he also saw the other two accused persons namely Niyazand Akbar around10:00p.m. at thesametimearound thebanks of river Yamuna. iv. It is the caseof theAppellant that the prosecution has tried to connect the testimony of PW-2 to state that this was the last seen evidence and thereis a live link between his testimony and the death of the deceased. However, the prosecution has been unable to deal with the contradictions in the testimony of PW-2 in respect of the identification ofthedeceased and whether hewas in fact a reliable and credible witness at all. It is also submitted that the co-accused Akbar has been acquitted dueto contradictions in the testimony of PW-2 in respect ofthepossessionofthe watch which belonged to thedeceased, which allegedly is stated to havebeen recovered from the co-accused Akbar. Ld. Amicus further states that there have been no recoveries from the Appellant or any other evidence which can connect the Appellant to the demise of Naushad. v. As far as PW-3, Mohd Sagir is concerned, the Ld. Amicus submitsthatthetestimony given by PW-3 is not corroborated by PW- 2 in any manner. In fact, PW-3 had testified to the effect that he had met Naushad, the deceased on 4th November, 1999 and that relationshipsbetween him and his wife were cordial. Thus, there were no circumstances which were mentioned by PW-3 except the alleged hearsayevidencethat Naushad had informed PW-3 that his wife was havingan affair with Akbar and Niyaz. Apart from this, evidence of PW-3 also contradicts thetestimony ofPW-2 to the effect that he had met theAppellantfor thefirst timeas stated in his cross-examination. Further, PW-3 was notawareas to who theco-accused Akbarwas. He has also stated that hedid not haveany acquaintance with either Niyaz or Akbar Shahexcept on oneoccasion wherehe saw them passing by, it is thus submitted, that this is not sufficient evidence to convict the Appellant.
(PW-6) vi. It is further submittedby theld. Counsel for the Appellant that PW-6, Smt. Shamahad deposed thattheAppellant used to reside at a distancefrom 4-5 jhuggis from PW-6’s jhuggi. Further, she deposed that thedeceased used to residein thesame jhuggi with the Appellant and worked as a rickshaw puller. It was also deposedby PW-6 thatshe knew the other co-accused Akbarand Niyazwho alsoused to residein thejhuggisof her basti. It was furtherstatedby her, that she had seen the Appellant and the deceased quarrelling almost daily, she also deposedthattherehadbeen maar-peetbetween theAppellant and the deceased. Ld. Counsel for the Appellant submits that upon being confronted with her statement (Ex. PW.6/DA), the abovementioned facts were not recorded in the said statement. vii. Ld. Counselfor theAppellant further submits thatthePW-6 had not met theAppellantbeforeand her evidence is contradictory to the effect that she states the deceased and wife were quarrelling, at the sametime shestated thatshemet theAppellantonly for the first time while she was eloping with one of the co-accused. In her crossexamination, PW-6 also statesthatshemet the Appellant for the first time when she was arrested. According to the ld. Counsel for the Appellant,thedepositionof PW-6 establishes the fact she is a stockwitness, her examination in chief was an improved one even on the most material facts. viii. Ld. Counselfor the Appellant therefore has submitted that an analysis of the depositions of PW-6, Smt. Shama, along with the testimonies ofPW-5, PW-18 and PW-21 is sufficient to state that she was a stock witness as also a police informer. It is clear from the depositionsofPW-18 and PW-21 thatthey had falsely implicated the present Appellant at the instance of PW-6. It is also submitted that both the Investigating Officers have acted on surmises, conjectures and hearsay evidence without examining any material evidence.
7. Ld. APP for the State, Mr. Ritesh Bahri has refuted the contentionsmadeby theld. Counsel for the Appellant by stating the following factors which have led to the conviction of Appellant: i. It is submitted by theLd. APPthat theAppellant had sufficient motive to kill her husband Naushad as she was in an illicit relationship with two other individuals, namely Niyaz and Akbar.TheAppellanttried to file two missing reports, despite her involvement in the murder of her husband. The entire purposeoffiling the two missingreports by the Appellant was to merely mislead thepolice. Further, Mohd. Farooq, PW-2 has also testified abouttheprior quarrelthattook placebetween the Appellant and the deceased. PW-2 in his testimony has also mentioned that hehad met theAppellantand thedeceased while they were coming from the side of the Mool Chand Basti as also thetwo other co-accused, Akbarand Niyaznear the“drumwala pul” on the bank of river Yamuna at 10 p.m. on 5th November, 1999, which is, therefore, the last seen evidence in the present case. ii. It is further submitted that the Appellant had tried to abscond after the dead body of Naushad was found on 6th November, 1999 and she was finally traced only on 9th November, 1999, thereafter, she was arrested by the Police upon receiving information. Thus,theld. Counsel submits that conduct of the Appellant alsoshows thather initialintentionwas to completely mislead thePolice and not to cooperate with them. Mr. Ritesh Bahri, ld. APP also highlights the fact that the Appellant had lodged the missing report at 6.45 a.m. on 6th November, 1999 statingthatthe deceased was missing from the evening of 5th, November, 1999, since 5 p.m. after leaving the jhuggi. iii. It is further arguedthattheAppellant has tried to create a false defense in her favour as per her statement under Section 313 Cr.P.C.by statingthatthedeceased was not even her husband. Hence, the Appellant has tried to connive that the Police had fabricated the two missing reports. PW-2, Mohd. Farooq and PW-3, Mohd. Sagir haveclearly deposed thattheAppellantwas married to the deceased since one and a half years. iv. Learned APP further contends that the testimony of PW-2 is corroboratedby thepost-mortemreport (Ex.PW-1/A)to support thefact that when PW-2 met theAppellant and the deceased at 10 p.m., they had informed him that they had just taken their meal and were going for a stroll towards the Yamuna river. v. It is also thecase of the prosecutionthatsince the post-mortem was conductedon 8th November, 1999 andthefact that thefood had remained completely undigested shows that the last seen evidence is connected to thedeath of thedeceased who appears to be murdered when they were taking a stroll on the banks of the Yamuna river immediately after consuming dinner. The post-mortemreportsupports the testimony of PW-2 and, thus, thecircumstantial evidence is sufficient to convict the accused Appellant. vi. It is further statedthattheAppellant tried to givean impression to both PW-2 and PW-3 that her relationship was cordial with Naushadon 6th November, 1999also depictsthattheAppellant was merely trying to give a false impression to the said witnesses while having oblique motives. vii. It is submitted by the Ld. APP that the mere mentioning of the disclosure statement and the contents of the same in the impugned judgementdoes not mean thattheld. Trial Court had relied on thesame. Theld. TrialCourthas acted independently on the basis of the evidence which has been brought forth before the Court. viii. Finally, it is submitted by Mr. Bahri, Ld. APP that the question relatingto rigor mortis was not put to PW-1, Dr. K. Goel who had conductedthepost-mortem and, therefore, no reliance can be placed on the said argument.
ANALYSIS AND FINDINGS
8. Heard learned Counsel for the parties and perused the record.
9. The wholeprosecution case, is based upon the theory that the presentAppellantwas married to the deceased, Naushad, and during the subsistence of the marriage, she got romantically involved with co-accused, Niyaz(since declared Proclaimed Offender). On account of this relationship, it is thecase of the prosecution,thattheAppellant alongwith, Niyaz, and his friend, AkbarShah (since acquitted), acted in furtheranceoftheir common intention to strangulate the deceased. The prosecution for the purpose of proving that the Appellant was married with Naushad and that she was having a relationship with Niyaz, haverelied upon the testimonies of the following witnesses: -
(i) PW-2: Mohd. Farooq,
(ii) PW-3: Mohd. Sagir; and
(iii) PW-6: Smt. Shama.
10. The case of theprosecutionfurther is based uponcircumstantial evidence by way of last seen evidence and for thesaid purpose, again, the prosecution relies upon the evidence of PW-2 and PW-3.
11. Analysis of evidence of PW-2/Mohd. Farooq i) PW-2 stated thatthedeceased was son ofhis brother-in-law, cobrother (Sadhu). He deposed that the deceased was married to the Appellant 1 ½ years ago from the date of his death and was residing with her at jhuggi. Asper thiswitness, co-accused, Akbar and Niyaz, were friends of the deceased, who were living in the same locality. This witness statesthatten daysbefore06th November, 1999 (date on which body of the deceased was discovered), the deceased came to him and had told him that co-accused, Niyaz, had developed illicit relationship with theAppellant.To this, PW-2 reverted that he would try and make her understand. He further stated that thereafter, deceased had told him that his wife had told him that Niyaz was like her brotherand therewas no relationship between thetwo ofthem. He further states that on 05th November, 1999, after closing shop at around 10 P.M., he went to meet the Appellant and her husband in order to make her understand. When he reached near “drum-wala” bridge(pul), near bank ofYamuna,hesaw that co-accused,Niyaz and Akbar, weregoingtowards bank ofYamuna. Asper thiswitness, when he went further towards MoolChandBasti, he met the Appellant and deceased, and the deceased told him that he has no danger from the aforesaidco-accused persons and he was living nicely and that they had taken the meal and were going towards river for a stroll. This witness statedthathewent back and next day he came to know about a dead body lyingat the bank of Yamuna River and at around 01:00 P.M., he and his brother-in-law, Sagir (PW-3), went to see the dead body and identified to be that of Naushad. ii) The prosecution relies on this aforesaid witness to prove three circumstances,i.e., (a) theAppellantwasmarried to the deceased; (b) the Appellant was having relationship with Niyaz; and (c) that the Appellant was seen last with the deceased as well as the other two accused persons. iii) Learned counsel appearing on behalf of the Appellant has placed on record by way ofwritten submissions, contradictions in the testimony oftheaforesaidwitness (PW-2). The same are reproduced as under: - “Self-Contradictions in the depositions of PW-2. (xii)He identified the deceased's dead body, inter alia, through the wrist watch worn by deceased. Then the same PW-2 identified the wrist watch at the time of arrest of Akbar who allegedly was wearing the wrist watch of the deceased. Even from the sealed cover, opened in Court and wrist watch shown to him was identified by PW-2 that of deceased Naushad which was being worn by Akbar. Realising his self-contradiction, he then deposed that there was no watch in the wrist of deadbody of Naushad. Again at page 9 of the paperbook PW-2 deposed that he saw accused Akbar wearing watch but was not identified by him. He says that he did not tell the police in his statement about the make of the watch (confronted with his statement Ex 2/DB where it is so recorded). (xiii)ln the cross examination PW-2 deposed firstly that Naushad was living in the Mahalia for 6-7 years then said he was living nearly place for 1-1/2 years. (xiv)He deposed that he never went to meet Naushad, however Naushad used to come to meet him. Then he said Naushad met me 10 days back prior to 06-11-1999 and before that day he never met me.
(xv) PW-2 then deposed that He only met me on 05-11-1999 (it is not clear whether PW-2 is referring to deceased Naushad or Niyaz, to show contradictions/self-contradictions). (xvi)PW-2 denied that he told police that Naushad told. him that Naushad saw his wife with Niyaz in objectionable position, however it is so stated in his statement (on confrontation). (xvii)PW-2 deposed that from the place where Akbar and Niyaz met him, Shamima and Niyaz met me ahead at a distance of about 100/150 yards. However he then said that Akbar and Niyaz were also coming from the same direction following Shamima and Naushad (this shows that Akbar and Niyaz were following Naushad and Shamima and they were behind Naushad and Shamima. Again at page 9( pdf 13) of the paperback PW-2 says Accused Niyaz and Akbar preceded the deceased and Shamima. The deposition in chief as well as in cross are self contradictory. (xviii)PW-2 also admits that at that time Naushad had no dispute with Shamima. (xix)PW-2 at one place says Niyaz and Akbar lived together but at the same time says, he does not know whether Akbar Lived with Niyaz.” iv) Another circumstance which is noted by this Court is that on 06th November, 1999, an unknown person had informed the Police Post Yamuna Pushtaat about10:45 A.M. that a dead body was lying in the bank ofriver, Yamuna. Thesaid informationwas duly registered and theSHO of P.S. Kotwali, Insp.Raja Ram, reached the spot where no eye witnesses were found. However, later on the said body was identified as that ofNaushad by PW-2 and PW-3, who gavethedetails of parents of the deceased, and, accordingly, the parents of the deceased were informed. Theaforesaid was duly recorded in Ex.PW- 18/D (brief facts). Similarly, PW-2 and PW-3 identified thedead body vide Ex.PW-2/Aand Ex.PW-3/A, respectively. It is pertinent to note that in both theseidentificationmemos, thesewitnesses had identified thedeceased and had given details of his village address.This witness (PW-2), as per theaforesaid records,did not inform the Investigating Officer (PW-21) with regard to the existence of the Appellant being the wife of the deceased. If the testimony of PW-2 is to be believed that he had met the Appellant and the deceased just a night before, then theintimationabouttheAppellant would have been given to the Police. However, he gave the address of deceased’s village in Samastipur, Bihar and in Ex.PW-18/D, Insp. Raja Ram records the fact that the parents of the deceased have been informed. This circumstance definitely creates a doubt on the version of PW-2. Similarly, another grave inconsistency in the testimony of PW-2, is that hehas, in his cross-examination,admittedthat prior to his death, thedeceased had met him ten days prior to 06th November, 1999 (the date when body of the deceased was discovered), and that he had never met him beforethat day. It is most unlikely that a person, who was otherwise not on visiting terms with someone, would go and confide to such a person about his wife’s illicit relationships. Another reason to doubtthetestimonyofPW-2 is that Insp. Raja Ram,PW-18, in his cross-examination, has stated as under: - “…..From our local inquiry, the. police intelligence, etc., I suspected the involvement-of Samima, Niaz and Akbar. One Shama lady, met in Mool Chand Basti, who gave information, about; the involvement of the accused persons, in this crime. Shama met me in- Mod Chand Basti for the first time on 6.11.i999. I did not record her statement to this effect- on 6.11.99. She met me at around -3-4 p.m.in Modi Chand basti, when I was making enquiries. There were many persons, but I do not remember their names. PWs Farooq and Sagir met me on the spot. However, I did not visit their jhuggi, but they reside in Yamuna Pusta. It is a big place. I do not remember, if I had enquired from PW Farooq as to whom deceased Naushad was married. I did not come to know in my local inquiry of the spot, as to whom deceased Naushad was married. Volunteered, but I came to know that deceased Naushad used to reside with Shamima Khatoon. I cannot say, if Shamima Khatoon is not a legally wedded wife of deceased Naushad or not. I had not sent any of my officials, during the investigation, remained with me, to ascertain, as to whom, deceased Naushad was married. -PW Shama was not known to me, prior to the day, i.e. 6.11.99. So long l remained in the police station Kotwali, no complaint regardingthe harassment of the people of the locality, Mool Chand Basti, by PW Shama, came to my notice. I have no knowledge, if the residents of the locality of Mool Chand Basti, had sent a complaint, addressed to DCP North, complaining against PW Shama. I left the charge of P.S. Kotwali, as the SHO on 8.11.1999, on account of the transfer. It is incorrect to suggest that PW Shama is the police informer and is our stock-witness. It is incorrect to suggest that PWs Farooq and Sagir, did not make any statement to me or that I recorded their statements, of my own. It is incorrect that I falsely suspected accused Shamima, Niyaz and Akbar accused. It is incorrect that the accused persons have been falsely implicated in this case.” (emphasis supplied) A perusal of the aforesaid testimony of PW-18 would reflect that PW-2 and PW-3 did not inform Insp. Raja Ram about the Appellant andher involvementin thepresentcase was brought to his knowledgeby PW-6, Shama.Thefact that PW-2 did not inform PW- 18, Inspector Raja Ram about the Appellant being the wife of the deceased becomes relevant and thesamefurther showsthatPW-2 was a planted witness. v) Even the contradictions, pointed outby learned Counsel for the Appellant,as recorded hereinabove, further fortifies the conclusion of this Courtthatno reliancecan be placed on thetestimonyof PW-2 for either of the three circumstances sought to be proved through the testimony of PW-2.
12. Analysis of evidence of PW-3/Mohd. Sagir i) The aforesaidwitnessstated to bethe brother-in-law (Saala) of PW-2/Farooq and stated that he lives with him only. This witnesses statesthathedid not know whether Naushad hastold anyoneabout his wife’s illicit relationship withNiyaz, however he had told him. PW-3 also states the same thing as PW-2 that about 10 days prior to 06th November, 1999,thedeceased had told abouttheillicit relationship of theAppellant with Niyaz and that also with co-accused Akbar. This witness deposed on similar lines as PW-2 that on knowing about the dead body, they went together and identified that of the deceased Naushad. This witness further states that the deceased had told him that he could be killed by Niyaz and Akbar. ii) The aforesaidwitnessin his cross-examinationhas contradicted himself on various facts. This witness also, in fact, never met the deceased, Naushad, 10 days prior to 06th November, 1999. The readingof the aforesaid testimony of this witness would reflect that thesame is on thelines of PW-2 and strangely the deceased who had never met earlier went and confided to him in respect of his wife’s illicit relationship. iii) Even this witness as pointed out herein before in the identification memo Ex. PW-3/A does not say anything about the Appellant being wife of the deceased Naushad and in view of the testimony of PW-18 reproduced hereinbefore, the same parameter would apply to the present witness as well and this witness again in the considered opinion of this Court cannot be relied upon.
13. Analysis of evidence of PW-6/Smt. Shama i) This witness is statedto havebeen residing at a distance of 4-5 jhuggisfrom the jhuggi of the Appellant. According to this witness, theAppellantwas residingwith her husband, the deceased, Naushad. As per this witness,sheknew co-accused, Akbar andNiyaz, who also used to reside in the jhuggis in the basti and that she had seen deceased, Naushad, quarrelling with Appellant and there used to be physicalfights between them. In her cross-examination, this witness was confronted with her statement under Section 161 of the Cr.P.C. (Ex. PW-6) wherein, theaforesaidfact was not stated. Similarly, this witness was alsoconfronted on variousfacts narrated in her testimony with her statement recorded under Section 161 of the Cr.P.C. in her cross-examination. In effect, this witness substantially improved upon on her earlier statements given before the Police. In her crossexamination, PW-6 also admitted to the fact that she did not know whether theAppellantwas marriedto the deceased or not. It has also come on record in thetestimonyofthis witness thatsheis a witness in two cases belongingto P.S. Kotwaliand P.S. Darya Ganj. She further admits, in her cross-examination, that she used to inform the police about any happenings in the area to help them. ii) This witness was cited by the prosecution to show that the Appellant wasmarried to thedeceased and thatthereused to be fights between them on account of relationship between the Appellant and the other co-accused person. The reading of the testimony of this witness does notinspireany confidenceas sheherselfhas admitted to be a police informer and it can be seen from her cross-examination that shehas substantially improvedher version and tried to introduce new facts which makes her testimony totally unreliable.
14. The prosecution has, thus, not been able to establish beyond reasonabledoubtthattheAppellantwas ever married to the deceased or that therewas any relationship between theAppellantand other coaccused persons.Thelearned TrialCourt acquitted the other accused namely, AkbarShah,whileholdingthat the prosecution has not been able to proveany motive qua thesaid accused to have committed the crime. It is pertinentto note that, as per case of the prosecution, this accused, Akbar, was seen with the other accused, Niyaz, and the Appellant alongwith thedeceased, theday before his dead body was found. The learned Trial Court has further expressed doubt on the testimony of PW-2 where he had stated that he had seen this coaccused on that day or not. Similarly, the learned Trial Court had disbelieved testimonyofPW-6 qua the co-accused on the ground that she had improved her versionfrom her previous statements and also recorded thatthedefence had attributed rivalry between this witness and said co-accused on accountofpossession of site for construction of jhuggis. Learned TrialCourthasfurther disbelieved therecovery of wrist watch of the deceased from this witness. It is pertinent to note that PW-2, in fact, had identified the dead body from the ring, locket and also the watch that the deceased was wearing. It is noted by the learned TrialCourtthatPW-2 had categorically stated that hehad seen thewatch on the dead body ofNaushadwhen police reached there. In these circumstances, the learned Trial Court came to the conclusion that the case of the prosecution regarding the recovery of the watch from this accused, when PW-2 had seen the wrist watch on the dead body of the deceased become highly doubtful.
15. The legal maxim falsusin uno, falsusin omnibus is not the rule of law applied by the Courts in India, however, in light of the aforesaiddiscussions, thefact that the testimonies of these witnesses were discarded by thelearned TrialCourt for acquitting the other coaccused, Akbar, is a relevant factor as, in effect, the learned Trial Court disbelieved the prosecution version of last seen evidence qua thesaid co-accused. It is pertinent to note that the charge framed by the learned ASJ on 17.05.2000 against the present Appellant along with the co-accused, Akbar, reads as under: - “….. That on the night intervening 5-6/1 1/99, at Yamuna Bank, field of Ganga Ram, Indira Colony, behind Vijay Ghat, within the jurisdiction of P.S. Kotwali, you both, alongwith your co-accused Niaz, (a P.O.), in furtherance of your common intention, caused the death of Naushad s/o Mohd. Kalan, by strangulation, and thereby murdered him and committed an offence punishable under Section 302/34 of the IPC and within my cognizance. And I hereby direct that you be tried by this court under the aforesaid offences. …..” Thus, the crux of the prosecution case was that the Appellant alongwith Niyazand Akbar in furtheranceoftheir common intention caused the death of the deceased-Naushad by strangulation. As pointed out above,thepresenceof theAppellant, Niyaz and Akbar as last seen with the deceased is being sought to be proved by the prosecution through the testimony of PW-2. By discarding the testimony ofPW-2 qua co-accused, Akbar,thelearned TrialCourt has disbelieved the main charge of the prosecution. At this stage, it is apposite to refer to the decision of the Hon’ble Supreme Court in Ugar Ahir and Others v. State of Bihar10, wherein, it has been observed and held as under: - “7. The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelive the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest. ……..”
16. It was argued by learned APP for the State that the fact that Appellant was absconding after the discovery of dead body of the deceased on 6th November, 1999 and she was arrested only on 9th November,1999 is also a vital link in the chain of circumstances. Similarly, the fact that the Appellant tried to mislead the police by making missing complaints in the morning of 6th November,1999 is further an additional circumstance pointing towards the guilt of the Appellant. In case of circumstantial evidence, each chain/link has to be established pointing towards the guilt of the Appellant. In the presentcase, thefoundation of the case of prosecution was last seen 10 1964 SCC OnLine SC 90: AIR 1965 SC 277 evidence which was being proved by way oftestimonies of PW-2 and PW-3. As noted hereinabove, thetestimonies ofthesaid witnesses are totally unreliableand therefore, thelink gets broken. Thus, even if, the contention on behalf of the State is accepted that the Appellant has absconded or shetried to mislead the police, the same would merely raisesuspicionand it would not besafe to rely on the same to convict the Appellant. It is the duty of the prosecution to prove their case beyond reasonable doubt.
17. The Hon’bleSupremeCourt in Shailendra Rajdev Pasvan v. State of Gujarat11, while affirming the judgment of acquittal passed by the Trial Court therein based on the circumstantial evidence, has observed and held as under: -
(2006) 10 SCC 681: (2007) 1 SCC (Cri) 80] which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.” **** **** ****
17. It is well settled by now that in a case based on circumstantial evidence the courts ought to have a conscientious approach and conviction ought to be recorded only in case all the links of the chain are complete pointing to the guilt of the accused. Each link unless connected together to form a chain may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused.
18. The inferences or presumptions can be drawn with the aid of Section 106 of theIEA only if thefoundationalfacts havebeen proved by the prosecution and in the present case, as already discussed, the said burden hasnot been discharged by the prosecution. The Hon’ble SupremeCourt in Shambhu Nath Mehra v. State of Ajmer13, while dealing with theapplicabilityofSection 106 of the IEA, has observed and held as under: -
section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts.”
19. In the totality of the facts and circumstances of the case and in view of the law laid down by the Hon’ble Supreme Court in the aforementionedcases, theimpugned judgmentofconviction dated 19th January, 2002 andorderon sentence dated 22nd January, 2002 are set aside.
20. The present appealis allowed. TheAppellantstands acquitted of the charges levelled against her.
21. Bail bonds stand discharged.
22. Pendingapplications, if any, also stand disposed of accordingly.
23. Copy of the judgment be sent to the concerned Jail Superintendent for necessary information and compliance.
24. Judgment be uploaded on the website of this Court, forthwith.
AMIT SHARMA (JUDGE)
PRATHIBA M. SINGH (JUDGE) DECEMBER 12, 2024