Full Text
Date of Decision: 18th March, 2010
MOHD. INTIZAR ..... APPELLANT
Through: Mr.K.B.Andley, Sr. Advocate with Mr. M.L.Yadav, Advocate
Through: Mr.Sunil Sharma, Advocate
HON'BLE MR. JUSTICE AJIT BHARIHOKE
JUDGMENT
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in Digest ? AJIT BHARIHOKE, J (ORAL)
1. This appeal is directed against the impugned judgment dated 8th July, 1997 in Sessions Case No.116/1996, FIR No.456/1995, Police Station Gokalpuri, convicting the appellant Mohd. Intizar for the offences punishable under Section302/201 IPC as also the consequent order on sentence dated 9th July, 1997 vide which the appellant has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2000/-, in default of payment of which to undergo R.I. for a further period of one month for the offence punishable under section 302 IPC, and for the offence punishable under section 201 IPC, to undergo rigorous imprisonment for 5 years and also to pay fine of 2010:DHC:1609-DB Rs.1000/-, in default of payment of which to undergo further R.I. for 15 days, with both sentences to run concurrently.
2. Briefly stated, case of the prosecution is that on 31st August, 1995 at about 07:00 pm, Mashkoor Ahmed went to Police Post Shri Ram Colony, P.S. Gokalpuri and lodged a complaint that his wife Shahana was missing since 29th August, 1995 regarding which he had not lodged any missing report with the police as he had been searching for his wife on his own. About half an hour before his visit to the police post, he had noticed loose earth in a portion of his courtyard, so he got suspicious and dug that portion with the help of a „phawra’ (spade). On digging the earth, he noticed a human body. On digging further, knees of the dead body were exposed, which appeared to be of his wife, so he stopped digging and rushed to the police post to report the matter. His aforesaid statement was recorded as DD No. 20 dated 31st August, 1995 (Ex.PW1/A) at the police post. Copy of the DD report was entrusted to SI B.L. Phulwari (PW14), who went to the spot and got that and recovered the dead body of a lady which was identified by the complainant as the body of his wife Shahana. SI B.L. Phulwari appended his endorsement Ex.PW11/A on the copy of the DD report and sent it to the police station for the registration of the case and formal FIR Ex.PW6/A was recorded on 31st August, 1995 at 09:50 p.m. The Investigating Officer prepared the rough site plan of the spot from where the dead body was recovered. Later on during investigation, a scaled site plan was also prepared. The dead body was sent for postmortem examination vide request Ex.PW14/B and as per the postmortem examination, cause of death was opined as incised cut throat wound of neck.
3. During investigation, it was revealed that the complainant had developed intimate sexual relations with the appellant since long. The deceased came to know about their relationship. Few days prior to the occurrence, she also caught them indulging in sodomy. Thus, she protested and impressed upon her husband to tell the appellant to leave their house. This is projected as motive of the crime.
4. It is further the case of the prosecution that on 29th August, 1995, the complainant claimed that he left his house for work in the morning and when he returned back, he found his wife missing. On 31st August, 1995 at about 06-06.30 am, he noticed the appellant pressing loose earth at the spot from where the body was dug out and asked as to what he was doing. The appellant explained that water had flooded the ground as a result of which earth in that portion had become loose. At 11:00/11:30 am, he again noticed the appellant repeating that exercise. Thereafter, he went in search of his wife and returned at 03:00/3.30 pm and found that the appellant was not there, so he got suspicious. Meanwhile, his brother-in-law Anis (PW[4]) and his sister came to find out about the deceased and at around 6:00 pm, they started digging that place, which ultimately resulted in the recovery of the dead body.
5. It is further the case of the prosecution that on 3rd September, 1995, the appellant was arrested. On interrogation, he made a disclosure statement Ex.PW1/C wherein he disclosed that he had buried the dead body of the deceased in the compound of the house of the complainant. He also disclosed that he had concealed his bloodstained clothes, which he was wearing at the time of murder, as also the knife used for committing the crime in the house of the complainant. Pursuant to said disclosure statement, he led the police party to the house of the complainant and pointed out the place where he buried the dead body and also got recovered the knife and bloodstained clothes hidden under a heap of cow dung cakes.
6. It is further the case of the prosecution that the knife Ex.P-5 and the shirt Ex.P-6 of the appellant were sent to CFSL along with other exhibits and as per CFSL report, human blood was found on the knife Ex.P-5 as also the shirt of the appellant but the blood group could not be ascertained.
7. On completion of the investigation, challan against the appellant was filed. He was charged for the offences punishable under Section 302/201 IPC. The appellant pleaded innocence and claimed to be tried.
8. On perusal of the impugned judgment, it transpires that the learned Trial Court has convicted the appellant on the strength of the following circumstances taken to be proved:
(i) That the deceased was last seen alive in the company of the appellant.
(ii) That the appellant had a very strong motive to commit the murder of the deceased.
(iii) That the appellant made a false representation to the complainant regarding whereabouts of the deceased.
(iv) That the appellant was seen by the complainant trying to press the loose earth at the spot in the courtyard of house of the complainant from where the dead body of the deceased was recovered.
(v) That the appellant absconded w.e.f. 31st August, 1995 after the complainant got suspicious that he may have buried the dead body in the courtyard.
(vi) That the medical evidence of the Autopsy Surgeon to the effect that the fatal injury that was found on the neck of the deceased could have been caused by the knife purportedly recovered at the instance of the appellant.
9. Since the case is based upon the circumstantial evidence, it would be useful to have a look on the law relating to the circumstantial evidence. In the matter of Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706, it was laid down by the Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: “10.(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) 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 none else; and (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.”
10. The above enunciated principle of law was reiterated in the matter of State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86, where the Supreme Court, inter alia, observed thus:
11. In the light of the above enunciated principles of appreciation of circumstantial evidence, we now proceed to analyse the evidence on record.
12. As regards motive, learned counsel for the appellant has submitted that it is not disputed that there was a gay relationship between the appellant and the complainant and the deceased was opposed to the complainant maintaining such relationship with the appellant and she in fact, had told the complainant to ask the appellant to leave their house for good. Learned counsel submitted that this has been taken as a motive on the part of the appellant to kill the deceased whereas this circumstance can equally be construed as the motive on the part of the complainant Mashkoor Ahmed because opposition of the deceased to the gay relationship between the complainant and the appellant would equally have deprived the complainant of sexual satisfaction which he had been deriving from his long drawn relationship with the appellant. From this, learned counsel has urged us to infer that complainant is an interested witness and as such is not a reliable witness.
13. Learned counsel for the State has refuted this argument. He submitted that the opposition of the deceased to the physical relationship between the complainant and the appellant was a cause of annoyance to the appellant; as such the Trial Court has rightly concluded that the appellant had a motive to get rid of the deceased in order to protect his gay relationship with the complainant.
14. No doubt, in view of the above referred undisputed factual matrix, the inference drawn by the learned Trial Judge that the appellant had a motive to kill the deceased as she was a hindrance in the continuation of his gay relationship with the complainant cannot be faulted, but it cannot be ignored that on the same logic, the complainant also had a motive to get rid of the deceased. As such, too much reliance cannot be placed upon the evidence of motive. Learned counsel for the State has tried to convince us that the motive on the part of the appellant was of higher degree than the motive on the part of the complainant by drawing our attention to the testimony of PW[1] Mashkoor Ahmed that while he and the appellant were staying together in Saudi Arabia, the appellant seduced him to indulge in sexual relationship with him and sodomize him. We are hardly convinced with this contention of learned counsel for the State. In a criminal trial based upon circumstantial evidence, motive is one circumstance in a chain of circumstances which may lead the Trial Judge to an inference that the accused may have committed the offence because he had a reason to do so. But the motive itself cannot be the sole basis of holding the accused guilty. Further, it is not always that existence of the motive would lead a person to commit the crime. In a criminal trial, while dealing with the issue as to which of the two persons having the motive might have committed the crime, the Trial Court is not expected to compare the gravity of the motive on the part of the said two persons in a weighing scale to fix the guilt. In the instant case, since both the complainant and the appellant were consensual partners in gay relationship, they both had a motive. Therefore, a possibility cannot be ruled out that the complainant might have killed his wife and buried her body in the compound, more so, because of the fact that the dead body was found buried in the courtyard of the complainant.
15. Another circumstance which weighed with the learned Trial Judge is the evidence of last seen. Last seen evidence in this case is provided by PW[1] Mashkoor Ahmed who stated that on 29th August, 1995, he gave Rs. 45/- to the appellant to pay for the fare for going to his house at Deoband, District Saharanpur and left for work leaving behind his wife as well as the appellant and his two children. When he came back from work, he found his wife missing. The witness also stated that he asked his daughter Hina, about the whereabouts of his wife and she responded that when she left for the school in the morning at around 07:30 a.m, his wife was at home. From this, learned Prosecutor has urged us to infer that the appellant was last available in the house of the complainant alongwith the wife of the complainant, as such, he alone had an opportunity to kill the deceased because she was not seen by anyone thereafter. On the other hand, learned counsel for the appellant has submitted that this version of the complainant is not reliable because the complainant himself is a suspect, as such an interested witness.
16. On careful consideration of the evidence, we find that as per the complainant, when he asked his daughter Hina about the whereabouts of his wife, she responded that when she left for the school at 07:30 a.m., the deceased was there in the house. If this version is true that Hina was the last person who saw the appellant and the deceased in the house, therefore, Ms. “Hina”, who was a school going girl was the best witness to corroborate the version of the complainant and to establish the last seen circumstance. The prosecution has neither cited nor produced daughter of the complainant, “Hina” to prove that the appellant was the person last seen in the house with the deceased. Since the prosecution has withheld the best witness to establish the last seen circumstance, we are inclined to draw an adverse presumption that had said girl Hina been produced in the court, she would not have supported the version of the complainant Mushkoor Ahmed. Thus, we do not find it safe to rely upon the last seen evidence provided by PW[1] Mushkoor Ahmed who, in view of the above discussion, falls within the category of a suspect as well as an interested witness.
17. Another incriminating circumstance which weighed with the learned Trial Judge is that the prosecution, from the testimony of PW[1] Mashkoor Ahmed, has been able to establish that in the evening of 29th August, 1995, when the complainant asked the appellant about his wife, he gave a misleading statement that the deceased had left the house wearing a burka immediately, soon after the appellant had gone for work. Learned counsel for the appellant has submitted that the learned Trial Judge has erred in relying upon the aforesaid uncorroborated version of PW[1] Mashkoor Ahmed ignoring the fact that he himself had a motive to kill the deceased and as such, he fell within the category of an interested witness. Learned counsel for the State, on the other hand, submitted that there is no reason to suspect the credibility of above referred version of PW[1] Mashkoor Ahmed as he had withstood the rigours of the cross-examination and his testimony could not be shaken.
18. On careful consideration of the record, we find that the above referred finding regarding conduct of the appellant is based upon the uncorroborated testimony of PW[1] Mashkoor Ahmed. In view of our discussion above, Mashkoor Ahmed also had a motive to get rid of the deceased, as such he can safely be termed as an interested witness. Thus, we do not find it safe to rely upon his testimony. Result is that the prosecution has not even been able to establish this circumstance.
19. Learned counsel for the appellant further submitted that the next incriminating circumstance taken against the appellant that he absconded from the house of the complainant on 31st August 1995 is not firmly established. He contended that as per the case of prosecution, the wife of the complainant was murdered on 29th August 1995 and even thereafter the appellant continued to live with the complainant. In view of the aforesaid, there was no justification to conclude that the appellant had absconded after the occurrence. Learned counsel for the State has refuted this argument by submitting that till 31st August 1995 there was no reason for the appellant to abscond as by that time nobody was aware that the dead body of the deceased has been buried in the courtyard of the house of the complainant. It is only on 31st August 1995 when the complainant noticed the appellant trying to press loose earth above the site of burial initially at 6:00/6:30 am and thereafter again around 11:30 am, the appellant got afraid and thinking that the complainant had become suspicious, he absconded from the house of the complainant.
20. We are not convinced with the argument of learned counsel for the State. The evidence of the PW[1] Mashkoor Ahmed regarding the conduct of the appellant and his absconding on 31st August, 1995 is not worthy of credence, firstly because of the reason that PW[1] Mashkoor Ahmed, the sole witness, is an interested witness who also had a motive to kill the deceased. Secondly, perusal of DD No.20 (Ex.PW1/A), which formed basis for registration of the case, reveals that in the evening of 31st August 1995 while reporting the matter to the police the complainant did not express his suspicion against the appellant nor did he say anything about the suspicious conduct of the appellant to the police. Thus, we do not find it safe to rely upon the sole testimony of PW[1] pertaining to absconding of the appellant.
21. Coming to the recovery of incriminating articles. Case of the prosecution is that on 03rd September 1995, the appellant, on interrogation, made a disclosure statement detailing the manner in which he committed the crime and pursuant to said disclosure statement, he got recovered the knife Ex.P-5 and the blood-stained shirt Ex.P-6. Ex.PW1/C and Ex.PW1/E are the relevant disclosure statement and seizure memo claimed to have been prepared by the Investigating Officer. On perusal of these documents, we find that the recording of disclosure statement as well as recovery is witnessed by PW[1] Mashkoor Ahmed (complainant) and Constable Inderjeet. Prosecution has not examined Constable Inderjeet to prove either the disclosure statement of the appellant or the recovery at his instance. Though PW[1] Mashkoor Ahmed has supported the prosecution story in his testimony, we do not deem it safe to rely upon his testimony because of the fact that he also had a motive to kill the deceased, as such he can be termed as an interested witness having an interest to depose falsely with a view to shift the blame on the appellant. Thus, we are left with uncorroborated testimony of the Investigating Officer PW14 SI B.L. Phulwari. At this juncture, it is pertinent to note that the investigation in this case has been done in a most inept manner. The Investigating Officer appears to have proceeded on the assumption that the allegations in the complaint were true and he did not even try to explore the possibility of the complainant having been involved in the murder despite of the fact that as per the facts narrated in the complaint Ex.PW1/A, the motive on the part of the complainant was obvious. The Investigating Officer, for the reasons known to him, has not cared to investigate the case to rule out the complicity of the complainant in the crime. This circumstance casts a doubt on his fairness. Under these circumstances, we do not find it safe to rely upon the testimony of PW14 SI B.L. Phulwari regarding the disclosure statement of the appellant followed by the recovery at his instance. Otherwise also, even if for the sake of argument, it is assumed that the knife Ex.P-5 and shirt Ex.P-6 were recovered at the instance of the appellant, then also the prosecution has failed to connect the said two articles with the murder of the deceased. Perusal of CFSL Report Ex.PW14/E reveals that though on analysis, human blood was found on the knife Ex.P-5 and the shirt Ex.P-6, the blood group of the human blood found on those exhibits could not be matched with the blood group of the deceased as the samples did not give any reaction for blood group. Thus, in our view, even this circumstance has not been firmly established.
22. The result of above discussion is that the prosecution has failed to firmly establish the incriminating circumstances forming a chain so complete so as to lead to an irrefutable inference of guilt of the appellant. As discussed above, the complainant also had a motive to kill his wife, thus a possibility cannot be ruled out that the complainant, prompted by the said motive, got rid of his wife and in order to escape the blame, he lodged a report against the appellant vide DD No.20 (Ex.PW1/A), which angle has not been investigated. Thus, in our view, appellant is entitled to benefit of doubt.
23. Thus, we find ourselves unable to sustain the impugned judgment of conviction and consequent order on sentence. We accordingly set aside the conviction of the appellant under Section 302 IPC and acquit him of the charge, extending the benefit of doubt to him.
24. The appellant is on bail. His bail-cum-surety stands discharged.
25. The appeal is disposed of accordingly. A.K. SIKRI, J. AJIT BHARIHOKE, J. MARCH 18, 2010 akb/pst