Hamid and Others vs State of U.P.

These appeals arise out of the same judgment and order dated 13.02.2015 passed in Sessions Trial No. 204 of 2011 [State Vs. Mohammad @ Faisal and others], they have been heard together and decided by a common order.

In the aforesaid appeals the appellants Mohammad @ Faisal, Safi Raza and Hamid @ Sukkha have been convicted and sentenced as under:

U/s. 302/34 IPC

:

Life Imprisonment with fine of Rs. 50,000/- each

:

In default of payment of fine two years RI.

U/s. 120B IPC

:

Life Imprisonment with fine of Rs. 50,000/- each

:

In default of payment of fine two years RI.

U/s. 394 IPC

:

Three years RI with fine of Rs. 5000/- each.

:

In default of payment of fine 8 months RI.

U/s. 411 IPC

:

Two years RI with fine of Rs. 2000/- each.

:

In default of payment of fine 6 months RI.

In these appeals facts of the prosecution case may be summarized as under:

That on 16.09.2010 at 3.10 P.M. Mohmmad Idrish @ Babu gave a written information that his daughter-in-law Shayra, resident of house No. 532/211, Aliganj, District Lucknow, was lying dead, her both hands were tied, on her neck there were knife injuries, he received the information about her death on that day at 2.00 P.M., when he reached there he also found that dead body was lying on the floor and she has bleeded much.

At this, chick FIR was scribed, Case Crime No. 446 of 2010, under Section 302 IPC was registered against unknown (persons). Requisite entry was made in the report of the general diary. Investigation was entrusted to SI Kalyan Sagar. Inquest proceedings were held by SI Shiv Kant Tripathi, dead body was sent to mortuary for autopsy. During autopsy eight ante mortem injuries were found on her person, out of these six were caused by sharp edged weapon. During the investigation husband of the deceased Nasir on 19.09.2010 furnished the list of articles taken from the house after the murder, at this information Section 394 IPC was added. On 29.09.2010 names of accused Faisal and Safi Raza came into light and part of the case property was recovered from their possession. From their confessional statements name of accused Hamid @ Sukkha came into light. He was taken on police remand, on his pointing out part of case property and two knife were recovered.

During the investigation, name of Aquil also came to light. Against first three accused charge-sheet was submitted. After further investigation against the accused appellant Aquil charge-sheet under Section 394 IPC was also submitted.

All the four accused were charged by the Court of Session under Sections 302, 394, 411, 120B IPC, which they denied and claimed to be tried.

In order to prove the charges, during trial on behalf of the prosecution documentary evidence was filed and in oral evidence eight witnesses were examined. Thereafter statements of the accused persons were recorded wherein they denied the facts of the prosecution case. Accused Mohammad @ Faisal admitted that the deceased was her maternal aunt but claimed that the investigating officer took jewellery of his family and had shown false recovery. All the other accused denied the recovery and claimed that the prosecution witnesses were giving false evidence. No evidence in defence was given. After hearing the arguments, the learned trial Judge acquitted the accused Aquil and convicted the present appellants under Sections 302/34, 120B, 394, 411 IPC and sentenced them as above.

Feeling aggrieved the appellants have preferred separate appeals.

Heard Sri Arun Sinha, Mr. Nadeem Murtaza and Mr. Atul Verma, Advocates for the appellants, Ms. Ruhi Siddiqui, learned Additional Government Advocate for the State-respondent and perused the record.

In support of the appeals, the learned counsel for the appellants have submitted very briefly that there is no eye witness account, the only witness who had identified the recovered case property is Ikara P.W. 4 daughter of the deceased, who has admitted in her cross-examination that when she identified the case property, it was not mixed with other property. According to learned counsel for the appellants such identification is impermissible in law. He further submits that during the trial none of the recovered articles were produced in the Court. According to him, none has seen the murder or robbery, the only evidence was of recovery, which could not be established for the reasons indicated above.

Learned Additional Government Advocate has repelled these arguments but conceded that against the acquittal of accused Aquil no appeal has been preferred by the State.

Before entering into the merits of the appeal, we would like to recall the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [, 1995 Supreme Court Cases (Crl.) 222] whereby duties of the appellate court have been outlined. Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [, 1995 CRI.L.J. 2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

In the present matter, in reference to the murder of the deceased there is no direct eye witness account, her daughter Ikara P.W. 4 has merely stated that the day before she was murdered, deceased was visited by Mohammad @ Faisal and Safi Raza. Motive is said to be robbery but there is no eye witness.

On behalf of the appellants before the learned trial Judge, homicidal death of the deceased was not disputed. Though on behalf of the prosecution Dr. Suresh Ahirwar P.W. 6 has been examined, who conducted the postmortem examination on the dead body of the deceased and proved the postmortem report Ext. Ka-6. Since there is no challenge to his testimony or correctness of the postmortem report, reproduction of ante mortem injuries found on the person of the deceased is needless. These have been fairly narrated in the impugned judgment, from there, they can be gainfully referred. On the basis of evidence of Dr. Suresh Ahirwar P.W. 6, postmortem report Ext. Ka-6 we hold that Smt. Shayara was done to death by inflicting six knife injuries. Her death would have occurred in between 8.00 A.M. to 4.00 P.M. on 16.9.2010.

The only evidence against the appellants is the evidence of recovery.

On behalf of the prosecution SI Kalyan Sagar has been examined to prove the factum of recovery. No independent person has been examined, who had witnessed these recoveries. Since case property has not been produced during the trial, nor it was identified before the Court, mere its identification during the investigation is not a substantive piece of evidence, therefore, we think that the recovered property belonged to the deceased has not been proved by the prosecution, hence factum of recovery cannot be taken into consideration against the present appellants. When we reach to this conclusion the prosecution case which rests on circumstantial evidence crumbles. In this regard, the learned trial Judge has not applied his mind in the right manner, even he has ignored that the list was submitted belatedly and case property was neither identified nor produced before the Court. We find that the evidence of recovery could not have been taken into account by the learned trial Judge and on this point he committed legal error.

In absence of evidence of recovery nothing remains against the present appellants. We notice that the evidence of Ikara P.W. 4 does not unmistakenly lead to conclusion that the murder and robbery was committed by the present appellants. Against them charges could not be proved by the prosecution beyond reasonable doubts. Findings recorded by the learned trial Judge are against the evidence on record and legal principles. There are factual and legal infirmities and they deserve to be set aside. The appeals have substance. They deserve to be allowed.

Accordingly, all the criminal appeals are allowed and the judgment and order dated 13.02.2015 passed as also conviction and sentences awarded to the appellants by learned IInd Additional Sessions Judge, Lucknow in S.T. No. 204 of 2011 [State Vs. Mohammad @ Faisal and others] arising out of Case Crime No. 446 of 2010, under Sections 302, 394, 411, 120B I.P.C., P.S. Aliganj, District Lucknow are hereby set a side. The appellants are acquitted from the charges levelled against them. The appellants are in jail. They be released forthwith, in case, they are not wanted in some other case, provided they file their personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance of Section 437 Cr.P.C.

Office is directed to certify this order to the court concerned forthwith for compliance and to send back the lower court record.