Haneef and Others vs State

Surendra Vikram Singh Rathore, J.—Both these jail appeals, preferred by appellants Haneef and Nanhkau respectively, arise out of a common judgement, hence these are being disposed of together.

Heard Shri Vaibhav Kalia, Amicus curiae for the appellants, and Mrs. Madhulika Yadav, learned AGA for the State.

Under challenge in the aforesaid criminal appeals is the judgment and order dated 13.04.2005 passed by Additional Sessions Judge, Court No. 1, Unnao, in Sessions Trial No. 84 of 2004, arising out of Case Crime No. 243 of 2003, Police Station Sohramau, District Unnao, whereby both the appellants namely Haneef and Nanhkau were convicted and sentenced as under:--

"i) For the offence under Section 364 IPC - Seven years'' rigorous imprisonment and fine of Rs. 5,000/- with default stipulation of one year''s simple imprisonment;

ii) For the offence under Section 394 IPC - Seven years'' rigorous imprisonment and fine of Rs. 5,000/- with default stipulation of one year''s simple imprisonment;

iii) For the offence under Section 302 /34 IPC - Imprisonment for life, and

iv) For the offence under Section 201 IPC - Five years'' rigorous imprisonment."

All the sentences were directed to run concurrently.

In brief, the case of the prosecution was that the complainant Lal Mohammad lodged a first information report at Police Station Sohramau on 21.12.2003 at 07.10 AM alleging therein that on 17.12.2003 his brother Bakreedi had gone to Nawabganj to ply his Kharkhara (a cart driven by horse). At about 02.00 PM, appellants Nanhkau and Haneef, who belong to his village, had taken Bakreedi with his Kharkhara towards Kusumbhi. They were seen at Nawabganj going towards Kusumbhi by Madar Bux @ Madau and Ali Hasan. When Bakreedi did not come back till late in the night then on the next day in the morning the complainant started his search. His efforts failed. Ultimately he got a first information report of this case scribed by Ram Gulam and on 21.12.2003, he lodged the first information report of this case.

On the basis of this first information report, the police came into action. During course of investigation, on 21.12.2003 appellant Haneef was arrested. He made confession of this offence that he along with his father Nanhkau has committed this offence and on his pointing out, the dead body of the deceased was taken out from a well with the help of rope and Kaanta. The dead body was recognized by the complainant. Inquest proceedings were conducted and the dead body was sent for postmortem, which was conducted on 22.12.2003 at 02.30 PM and the following ante-mortem injury was reported by the doctor:--

"Ligature mark present all around neck 26 cm x 40 cm. On dissection, ecchymosis present. Trachea and hyoid bone were found fractured. Base of groove (ligature) was soft and reddish.

In the opinion of the doctor, the cause of death was asphyxia as a result of ante-mortem strangulation. The duration of death was reported by the doctor to be about five days."

During the course of investigation, on 30.12.2003 on the information received from a secret informer, appellant Nanhkau was arrested from Jogi Sarai Tiraha with horse and Kharkhara of the deceased Bakreedi. It is alleged that in custody appellant Nanhkau also made confession of this offence and disclosed that horse and Kharkhara were of the deceased. The place of occurrence and the places of recovery were inspected and its memos were prepared.

After completing the investigation, charge sheet was filed against both the appellants.

The case of the defence was of total denial and their false implication. Appellants have stated that they were taken by the police from Kanpur and they have been falsely challaned in this case. Witnesses are giving false evidence as all are related to the deceased and complainant.

In order to prove its case, the prosecution has examined PW-1 Mohd. Madar Bux, PW-2 Lal Mohammad - the complainant, PW-3 Rahmat Ali, PW-4 SI Srikrishna Singh - Investigating Officer of this case, PW-5 Head Constable Babu Ram Singh, who has prepared chik report and GD of this case. The documents on which the prosecution had placed reliance were admitted by defence, therefore, such formal witnesses were not examined in this case.

No evidence in defence was adduced on behalf of the appellants.

Learned trial court, after appreciating the evidence on record, has convicted the appellants, as above, hence these criminal appeals.

Submission of learned counsel for appellants was that in this case recovery of horse and Kharkhara was highly doubtful. The evidence adduced by the prosecution to prove this circumstance was not the least reliable. Evidence of PW-1 Madar Bux regarding last seen was also not reliable. Apart from it, the prosecution evidence suffers from material contradictions on each material particulars regarding the arrest of the accused persons and the recovery on their pointing out or from their possession but the learned trial court has failed to appreciate the evidence in correct perspective which has rendered its judgment unsustainable under law.

Per contra, learned AGA, appearing for the State, has submitted that learned trial court has given valid reasons and has convicted the appellants. The judgment needs no interference by this Court in the instant appeal.

In the instant case, the first information report was lodged with considerable delay of four days. According to the prosecution version the fact that the deceased was missing and he was last seen in the company of the appellants came in the notice of the complainant on that very day through PW-1 Madar Bux and Ali Hasan but the prosecution could not explain the delay in lodging the first information report.

Law is settled on the point that only on the basis of delay in the first information report entire case of the prosecution can not be discarded but duty is cast upon the Court to scrutinize the prosecution evidence with extra care and caution.

Hon''ble Apex Court has considered the effect of delay in the F.I.R. and has held in the case of Kanhaiya Lal and Others Vs. State of Rajasthan, as under:--

"12. It is settled in law that mere delay in lodging the First Information Report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered, by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory. In this regard, we may refer with profit a passage from State of Himichal Pradesh Vs. Gian Chand, , wherein a three-Judge Bench of this Court has expressed thus: - "Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."

In Ramdas and Others Vs. State of Maharashtra, , this Court has observed that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and, in a given case, the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court has to consider whether the delay in lodging the report adversely affects the case of the prosecution."

Since this case is based on circumstantial evidence, therefore, before proceeding further, we would like to consider the guidelines which have to be followed in recording conviction in the cases based on circumstantial evidence.

Hon''ble the Apex Court in the case of Sk. Yusuf Vs. State of West Bengal, in para 26 has held as under:

"Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

Hon''ble the Apex Court in the aforesaid case has followed its earlier pronouncements in the following cases:

" Sharad Birdhichand Sarda Vs. State of Maharashtra, , Krishnan Vs. State represented by Inspector of Police, and Wakkar and Another Vs. The State of U.P., ." In the case of Haresh Mohandas Rajput Vs. State of Maharashtra, , Hon''ble Apex Court following its earlier decision in the case of Krishnan Vs. State represented by Inspector of Police, observed that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

"(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be definite tendency unerringly pointing towards guilt of the accused;

(iii) 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

(iv) 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."

Thus, though a conviction can be based solely on circumstantial evidence, but the Court must bear in mind the aforesaid tests while deciding a case involving the commission of a serious offence.

The prosecution, in the instant case, has proposed to prove the following circumstances against the appellants:

"i) Evidence of last seen at Nawabganj Chauraha;

ii) Evidence regarding recovery of dead body from the well on the pointing out of appellant Haneef on 21.12.2003 situate on Miyaganj to Aasheewan road, Police Station Aasheewan, and

iii) Recovery of horse and Kharkhara from the possession of appellant Nanhkau on 30.12.2003 from Jogi Sarai Tiraha."

Now, we will consider whether the prosecution was successful in proving such circumstances by reliable evidence.

{(i) Evidence of last seen}

As per the first information report, the deceased was last seen alive in the company of the appellants by PW-1 Madar Bux and Ali Hasan. The complainant himself is not a witness of this fact. Ali Hasan, the other witness who is alleged to have seen the deceased in the company of the appellants, has not been examined. So, on this point, there remains the sole testimony of PW-1 Madar Bux. This witness is the resident of village Sarai Joga, Police Station Sohramau, District Unnao. He is not resident of the village where deceased was last seen alive. He has stated that on 17.12.2003, he had gone to the market of Nawabganj. On that day, Bakreedi was present with his Kharkhara and his horse to go towards Kusumbhi. He had seen that in the Tanga of Bakreedi, Haneef and Nanhkau, who were the residents of the same village, were sitting. Thereafter, he came back. He submits that he had not asked the appellants as to where they were going. Thus, the evidence of this witness is only to the extent that the appellants were found sitting in Tanga. Thereafter, he came back. He has nowhere disclosed the time at which he had seen the appellants sitting in Tanga. Sitting in Tanga, which was being plied for passengers, by itself, cannot be taken to be an incriminating circumstance unless it is accompanied by other evidence. In his cross examination, PW-1 has stated that he several times had seen the appellants sitting in Tanga and therefore he had not asked them as to where they were going because they frequently used to sit in Tanga. No other witness of fact has given evidence on this point.

PW-3 Rahmat Ali in his examination in chief has stated that Madar Bux and Ali Hasan had told him that they had seen the deceased along with the appellants going towards Kusumbhi. But PW-1 does not say that he had seen them going towards Kusumbhi but has only stated that he had seen them sitting in Tanga. This witness happens to be the real maternal uncle of the deceased. Even if, on this point, the evidence of PW-1 is relied upon even them the only fact that the prosecution could prove is that the appellants were sitting in the Tanga of Bakreedi. No other witness of Nawabganj could be examined by the prosecution on this point. Thus, in these circumstances, we are of the considered view that prosecution could not prove this circumstance beyond reasonable doubt.

{(ii) Recovery of dead body on the pointing out of appellant Haneef }

As per case of the prosecution, appellant Haneef was arrested by the police on 21.12.2003 and on his pointing out, the dead body is alleged to have been was recovered on the same day from a well situated on the southern side of Miyaganj to Aasheewan road within the circle of police station Aasheewan. PW-1 Madar Bux has also given evidence on this point. He has stated that on 21.12.2003, he met with Haneef. He arrested him and handed over to the police. Police made an inquiry regarding Bakreedi then Haneef told the police that after committing murder of Bakreedi, his dead body has been thrown in the well. Thus, this witness says that he himself had arrested appellant Haneef and had handed him over to the police. Thus, this evidence of the witness demolishes the prosecution story regarding the arrest of appellant Haneef by the police. He has stated in his examination in chief that along with police personnel, he and Lal Mohammad also accompanied to the well as disclosed by the appellant Haneef. He has stated that he had brought Kanta from Aasheewan and took out the dead body. On this point, in cross examination this witness has stated that the police personnel of Aasheewan were not present at the well. Darogaji was not present there. He along with other persons reached at the well at 2.00 AM in the intervening night of 20/21.12.2003 and the dead body could be taken out on 21.12.2003 at about 04.00 PM. In the night, they remained in the Police Station Aasheewan because the said well was within the territorial area of Aasheewan police station. He has further stated that by the time, he went with the police of police station Sohramau then the dead body was not in the well. Only one slipper was seen floating on the water of the well which was taken out and from the said slipper, he recognized that it was of his Bhanja Bakreedi. They had taken out the slipper with the help of thin log of Eucalyptus tree. After recovery of slipper, they were satisfied that the dead body must be in the same well and thereafter they went to Aasheewan police station. At that time Incharge Sohramau and police personnel were also accompanying them. This statement of the witness shows that because of the recovery of slipper (Chappal) of the deceased it was suspected that the dead body may be in the well while the police claims that it was recovered on the pointing out of appellant Haneef. The dead body was taken out by him. Thus, this witness states that appellant Haneef was arrested by him on 20.12.2003 and not on 21.12.2003 as claimed by the prosecution. Once the story, date, time and place of arrest is found to be falsified by the evidence of this star witness of the prosecution then the recovery made subsequent thereto shall also come under the shadow of doubt.

Learned AGA has half heartedly argued that by mistake this witness might have said that it was 20.12.2003 but we are not the least convinced with this argument because this witness has also narrated the correct date of incident i.e. 17.12.2003 on which he had seen the appellants sitting on Tanga of the deceased. Apart from it, in his cross examination, he has made it absolutely clear that they reached the well at about 02.00 AM in the night and by that time the date changed and it was 21.12.2003. So, this witness was not only well aware about the dates but also about the fact as to when the date changes. In subsequent cross-examination, this witness has stated that they had brought Haneef on 20.12.2003 at 05.30 PM from Kanpur wherefrom he was taken to police station in between 10.30-11.00 PM. By that time the case had been registered at the police station. This statement of this witness goes absolutely against the case of the prosecution.

PW-2 Lal Mohammad has stated that the police had arrested appellant Haneef on the day when he lodged the report from the road near Bhalla farm when he got down from the truck.

PW-3 Rahmat Ali has also stated that appellant Haneef was arrested at Kanpur-Lucknow road near Bhalla farm in between 12.00-12.30 PM. But as stated earlier there stands major contraction in the evidence on this point.

SI Srikrishna Singh has also supported this fact but evidence of PW-1 is absolutely contrary to the case of the prosecution and this witness has also not been declared hostile on this point. According to the evidence of this witness, appellant Haneef was arrested by him from Kanpur and was handed over to the police. Appellants have also come with specific defence that they were arrested from Kanpur and have been falsely implicated in this case. The evidence of PW-1 makes the defence theory probable. Thus, the evidence on this point regarding date, time and place of arrest of appellant Haneef and subsequent recovery on his pointing out comes under shadow of doubt and this circumstance cannot be said to be proved beyond doubt.

{(iii) Recovery of horse and Kharkhara from the possession of appellant Nanhkau on 30.12.2003 }

PW-1 has also given evidence on this point. This witness was also a witness of recovery memo of this recovery. In the examination in chief, he has supported the recovery but on this point in his cross examination he has stated that he is not aware of the fact as to how many days after the incident appellant Nanhkau was arrested. When horse and Kharkhara were brought to the police station is not known to him. He has stated that at that time on Kharkhara some small children were sitting. The horse of the Kharkhara was apprehended by the persons of village Teji Khera. At that time Darogaji was not there and only he was present there along with horse and Kharkhara. The persons of village Teji Khera had not gone to the police station. He has stated that he along with natives of village Teji Khera had taken horse and Kharkhara in custody and thereafter information was sent to the police station and on their information the police had come there. The police reached Teji Khera at about 12.00 in the Noon. Admittedly, PW-1 Madar Bux is the real maternal uncle of the deceased and the complainant. He is an omni present witness. He had seen the deceased in Nawabganj in the company of the appellants. He went to Kanpur to arrest them. He recovered the dead body on 20.12.2003 from the territory of Police Station Aasheewan and thereafter informed the police and with the help of persons of the village Teji Khera, he recovered horse and Kharkhara of the deceased. Apart from it, his evidence goes absolutely contrary to the case of the prosecution regarding date, time, place and the manner of recovery.

PW-2 is the complainant who is the brother of the deceased and Bhanja of PW-1 Madar Bux. He has also admitted the presence of PW-1 at the time of recovery of dead body and as discussed earlier, the evidence of Madar Bux PW-1 is contrary to the case of the prosecution. According to the evidence of PW-2, Madar Bux was also present at the time of recovery of horse and Kharkhara and on this point, the evidence of PW-2 has already been discussed earlier. In cross examination this witness has stated that his mother had told him that appellants have taken the deceased with them. He expressed his ignorance whether his mother had seen the appellants in the company of the deceased or not but he has fairly admitted that relying upon the information given by his mother, he lodged the report against the accused persons. This witness has also expressed his ignorance whether he went to the police station after recovery of the dead body or before recovery of the dead body. At this place, he has not stated that PW-1 Madar Bux had told him that he had seen the deceased and appellants sitting on Tanga. So this version of first information report also stands falsified. This witness has expressed his ignorance regarding time at which the dead body was taken out. He has also expressed his ignorance regarding the fact whether the police of police station Aasheewan was present there or not. Regarding recovery, this witness has stated that horse and Kharkhara were recovered and thereafter alarm was created. Hearing the alarm, he also went there. However, he could not tell whether the police reached after or before the said recovery. He has admitted that PW-1 Madar Bux was with him.

PW-3 is Rahmat Ali. He has also stated that appellant Haneef was arrested near Bhalla farm when he got down from a truck. But he has admitted in his cross examination that at the time of taking out of the dead body from the well, the Kanta was thrown by the police but the rope was pulled by Haneef and Nanhkau. Thus, this version falsifies the arrest and recovery from Nanhkau on 30.12.2003 because he was in police custody on the day when dead body was taken out from the well i.e. 21.12.2003.

In the instant case, the witnesses of the prosecution are closely related. PW-3 Rahmat Ali is the Pradhan and PW-1 and PW-2 helped him in his election. The prosecution has mainly relied upon the evidence of PW-1 Madar Bux and perusal of his evidence shows that his evidence was highly unnatural because be was present at every relevant place and has given an entirely different story regarding the date, time and place of arrest of appellant Haneef and Nanhkau. This witness has nowhere been declared hostile. Thus, the circumstances regarding arrest and recovery on the pointing out of appellant Haneef and also arrest of appellant nanhkau and recovery of horse and Kharkhara comes under shadow of doubt.

In the incident of this case, the three circumstances on which the prosecution has placed reliance occurred at three different places. No part of the incident is alleged to have taken place in village Sarai Joga where all the three witnesses reside. Incident of last seen took place at Nawabganj. Incident of recovery of dead body took place within the circle of police station Aasheewan and arrest of Nanhkau and recovery of horse is alleged to have taken place at Teji Kheri Tiraha which as per evidence of PW-3 is at a distance of 3 kilometres from his village Sarai Joga. Admittedly not even a single person of the village where any part of incident had taken place is a witness in this case. All the three witnesses who are resident of village Sarai Joga are present at every place. This is highly unnatural. Evidence of PW-1 shows that the accused persons were arrested by him from Kanpur and were handed over to the police and thereafter he took out the dead body because he suspected that it was in the well. PW-3 says that rope of Kanta was pulled by Haneef and Nanhkau. Thus, the evidence of this witness is virtually fatal to the prosecution.

In view of discussions made above, we are of the considered view that the prosecution has failed to prove all the circumstances against the appellants beyond shadow of doubt and the chain of circumstances was incomplete and does not point towards the guilt of the appellants. Learned trial court has not considered the prosecution evidence in correct perspective which rendered its judgment unsustainable under law. Thus, Criminal Appeal No. 699 of 2005 preferred by appellant Haneef and Criminal Appeal No. 702 of 2005 preferred by appellant Nanhkau deserve to be allowed and are hereby allowed. They are acquitted of all the charges levelled against them. They be set at liberty. They are in jail. They shall be released forthwith if not wanted in any other case.

Office is directed to communicate this order to the court concerned for immediate compliance and also to send back lower court record.