Hashmat Ali Kodhi vs State of U.P.

U.S. Tripathi, J.—This appeal has been preferred from jail against the judgment and order dated 20.8.1996, passed by I Ind Additional Sessions Judge, Bareilly, in Sessions Trial No. 1054 of 1994 convicting the Appellant under Sections 302 and 377, I.P.C. and sentencing him to undergo imprisonment for life and fine of Rs. 2,000 u/s 302, I.P.C. and R.I. for a period of five years and fine of Rs. 1,000 u/s 377, I.P.C. In default of payment of fine he was further sentenced to one year R.I. on each count.

The prosecution story, briefly stated, was that the Appellant Hashmat was suffering from leprosy. He was turned out of the village and was residing in a room constructed near Imratiya Tal. Rafiq Ahmad deceased aged about 12 years was son of Laiq Ahmad (P.W. 1). On 22.9.1994, Rafiq Ahmad deceased along with Ansar Ali (P.W. 4) aged about 10 years was grazing his she-goats at Ram Tundmai near his village. At about noon Appellant Hashmat came there and took Rafiq deceased under the pretext of providing sugarcane to him. The Appellant was also seen taking the deceased towards sugarcane field by Irshad (P.W. 2). Rafiq deceased did not return to his house in the night. His father Laiq Ahmad (P.W. 1) searched him but he was not traceable. Therefore, he lodged report at P.S. Cantt. Bareilly, at 1.00 a.m. on 23.9.1994 that his son was missing. The above report was endorsed at G.D. report (Ext. Ka-8) by constable clerk Gayasi Ram. On 23.9.1994 Laiq Ahmad (P.W. 1) was searching the deceased along with villagers and the police. While he was searching the deceased Suleman Khan, Shamshad and Irshad (P.W. 2) told him that on previous day at about 12.00 noon they had seen his son Rafiq deceased along with Hashmat Appellant going towards sugarcane field of Babu Kalev Ali Khan. On above information Laiq Ahmad (P.W. 1) and other persons went towards above sugarcane field where dead body of Rafiq deceased was lying. The dead body was naked and underwear was lying near his legs. There were ligature marks on the neck of the deceased and blood on his anus. Leaving dead body there Laiq Ahmad (P.W. 1) again came to police station cantonment and lodged written report (Ext. Ka-1). On the basis of written report chik F.I.R. (Ext. Ka-5) was prepared by head constable Yad Ram Singh (P.W. 8) who made an endorsement of the same at G.D. report (Ext. Ka-6) and registered a case against the Appellant under Sections 377 and 302, I.P.C.

Investigation of the case was taken up by Sri Preetam Singh, Investigating Officer (P.W. 11). The Investigating Officer along with police force and the S.I. Shiv Raj Singh (P.W. 10) reached the spot and found dead body of the deceased in the sugarcane field. He got conducted inquest of the dead body through inspector Shiv Raj Singh (P.W. 10) who prepared inquest report (Ex. Ka-3) and other relevant papers. He sealed the dead body and handed over to constable Ranveer Singh (P.W. 7) for post mortem. The Investigating Officer inspected place of occurrence and prepared site plan (Ext. Ka-14). He interrogated Suleman Khan (P.W. 3), Ansar (P.W. 4), Nisar Ali (P.W. 6) and others.

The autopsy on the dead body of the deceased was conducted on 23.9.1994 by Dr. Suresh Chandra (P.W. 9) who found abraded contusion on the back of chest, multiple abraded contusion on left of forearm and ligature mark around the neck and laceration on the wall of anus. Cause of death was asphyxia as a result of strangulation. He prepared post mortem (Ex. Ka-7).

On 24.9.1994, the Investigating Officer apprehended the Appellant from his kothari and on his pointing out recovered a rope and on completion of investigation submitted charge-sheet against the Appellant.

Cognizance of the case was taken by the Magistrate who committed the case to the Court of Sessions.

The Appellant was charged with the offence punishable under Sections 377, 302 and 201, I.P.C. He pleaded not guilty and contended that he was suffering from leprosy for last 35 years and his hands and legs had become out of order. The villagers were annoyed with him and falsely implicated him.

The prosecution in support of its case examined Laiq Ahmad (P.W. 1), Irshad (P.W. 2), Suleman Khan (P.W. 3), Ansar (P.W. 4), Nausey Ali Khan (P.W. 5), Nisar Ali (P.W. 6), Constable Ranveer Singh (P.W. 7), Head Constable Yadram Singh (P.W. 8), Dr. Suresh Chandra (P.W. 9), Shiv Raj Singh (P.W. 10) and Preetam Singh, Investigating Officer (P.W. 11).

The Appellant did not adduce any evidence in his defence.

The learned Sessions Judge on considering evidence of the prosecution held that the prosecution has successfully proved the guilt of the Appellant for the offences punishable under Sections 302 and 377, I.P.C. and offence punishable u/s 201, I.P.C. was not proved. With these findings he convicted and sentenced him as mentioned above.

Aggrieved with his above conviction and sentence the Appellant preferred this appeal.

Notice of the appeal was served on the Appellant through Superintendent, Central Jail, Bareilly, but he did not engage any counsel and therefore, we appointed Sri A. K. Awasthi advocate as amicus curiae to argue the appeal on behalf of the Appellant.

We have heard Sri A. K. Awasthi, learned amicus curiae and learned A.G.A. and have perused the evidence on record.

There is no direct evidence in this cases. The case is based on circumstantial evidence.

The law regarding circumstantial evidence is well-settled. When a case rests upon circumstantial evidence, such evidence must satisfy three tests ; (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.

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. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (Vide Gambhir Vs. State of Maharashtra,

In this case, the prosecution has relied on three circumstances, which are as under:

(1) The Appellant had taken the deceased from the place where he was grazing his she-goats under the pretext of providing him sugarcane.

(2) The Appellant was last seen taking the deceased towards sugarcane field.

(3) A rope was recovered on the pointing out of the Appellant.

Before considering the above circumstances, we would like to consider the medical evidence.

Dr. Suresh Chandra (P.W. 9) who conducted autopsy on the dead body of the deceased found following facts:

The deceased was of average built body of boy. Rigor mortis absent in the upper limb and passing off from lower limb. Discolouration present on both iliac fossa. Abdomen distended. Face swollen and cyanosed. Blood stranded fluid coming out from the both nostrils and mouth. Right eye congested left eye wall lacerated and maggots 3 mm. size present corresponding on the left eye and neck. Tongue swollen and bruised. Lips congested. The Doctor found following ante-mortem injuries on the person of deceased:

(1) Abraded contusion multiple in an area of 24 cm. ? 12 cm. on the back of chest and lumber region varying from 1.5 cm. ? 0.5 cm. and 0.5 cm. ? 0.5 cm. On dissection underlying congestion.

(2) Multiple abraded contusions in an area of 6 cm. ? 4 cm. on the back of left forearm just below the elbow joint.

(3) Ligature mark two in number one 2 cm. ? 1 cm. all around the neck between hyoid bone and thyroid prominence in front circling both side and posteriorly. Margins congested and echymosed on dissection. Blood clots present underlying hyoid bone. Right cornea fractured. Second ligature 16 cm. ? size on front and left side of neck on the thyroid prominence. On dissection thyroid cartilage fractured. Margins of ligature congested and echymosed.

(4) Posterior and lateral wall of anus lacerated and congested.

Internal examination showed that brain was congested. Both lungs congested. Neck vessels congested. Cause of death was due to asphyxia as a result of strangulation.

The above medical evidence has not been challenged. The medical evidence shows that unnatural offence was committed on the deceased as the posterior and lateral wall of anus were lacerated and congested. Dr. Suresh Chandra (P.W. 9) has further clarified that the lacerated of posterior wall of anus was due to insertion of blunt object in the anus and penis is also blunt object. It further shows that deceased was done to death by pressing his neck by some rope or clothe as there were two ligature marks on his neck and cause of death was asphyxia due to strangulation. Therefore, it is established that unnatural offence was committed on the deceased and thereafter, he was strangulated to death.

On the circumstance No. 1 there is evidence of Ansar (P.W. 4) aged about 10 years. He stated that Rafiq deceased was his friend and he was residing near his house. On the date of occurrence at about 9.10 a.m. he and Rafiq had taken their she-goats to Ram Tundamai for grazing. After 12 noon when there was Azan the Appellant Hashmat came there and asked Rafiq to go with him as he would provide him sugarcane. Rafiq deceased went with the Appellant. He waited Rafiq for some time but he did not come. Therefore, he came to his house taking his she-goats and that of Rafiq and slept. In his cross-examination he stated that he was interrogated by the Investigating Officer after 15 days. While grazing she-goats he was sitting at a distance of two fields from Rafiq. The Appellant did not come to him nor he went near him and he had hidden himself. He had heard Hashmat Appellant saying Rafiq to provide sugarcane.

The evidence of Laiq Ahmad (P.W. 1) the father of the deceased shows that he started searching the deceased when he did not return to his house and at about 1.00 a.m. in the night he lodged report of the missing of his son Rafiq. The above report was endorsed at G.D. report (Ext. Ka-8). Perusal of the above report (Ext. Ka-8) shows that he had not mentioned in his above report that Ansar Ali (P.W. 4) had told him that the deceased was taken by the Appellant. Contrary to it, it is mentioned in it that on 22.9.1994 his son Rafiq had gone to graze she-goats along with Ansar Ali (P.W. 4). That Ansar Ali came to his house at about 12.00 noon, but his son did not return. He and other village people searched the deceased but he was not traceable. The Baniyan of the deceased was lying in a field near Imratiya Talab. In case the deceased did not return to his house and his she-goats were brought by Ansar Ali (P.W. 4) Laiq Ahmad (P.W. 1) must have asked Ansar why his son did not return and Ansar Ali (P.W. 4) would have told that he was taken by Hashmat and this fact must have been mentioned in report (Ext. Ka-8). Omission of this fact in the above report by the father of the deceased that Ansar Ali (P.W. 4) had seen the Appellant taking the deceased on the pretext of providing sugarcane leads to infer that the evidence of Ansar Ali (P.W. 4) is not believable. Moreover, Ansar ali (P.W. 4) was interrogated by the Investigating Officer after 15 days of the occurrence. No sufficient explanation had been offered about his belated interrogation.

It appears that Ansar Ahmad (P.W. 4) was subsequently prepared to become a witness of the above fact. Therefore, the above circumstance has not been fully established.

The next circumstance is that of the last seen. On this point there is evidence of Irshad (P.W. 2) and Suleman Khan (P.W. 3). Irshad (P.W. 2) stated that on the date of occurrence at about 10-10.30 a.m. he was going to attend call of nature and had seen the Appellant in the company of the deceased going towards sugarcane field. On 25th (25.9.1994) he told this fact to Laiq Ahmad (P.W. 1). Then he went to police station and told this fact to the police. When Rafiq deceased was being searched he was not present in the village. In his cross-examination he stated that he was not interrogated by the Investigating Officer and had not told anything before him.

Suleman Khan (P.W. 3) stated that on the date of occurrence he was returning to his village from village Parsona along with Shahanshah. He had seen the Appellant going with Rafiq. He had not objected. After taking food he went to his field. On next day at about 10.00 a.m. he told this fact to Laiq Ahmad (P.W. 1). In his examination-in-chief, he had not stated that he had seen the deceased and the Appellant going towards sugarcane field nor this fact finds place in his statement before the Investigating Officer .

Irshad (P.W. 2) admittedly told the factum of last seen to Laiq Ahmad (P.W. 1) on 25th (25.9.1994). He was not present in the village when search of Rafiq was being made by Laiq Ahmad and others. But Laiq Ahmad (P.W. 1) has mentioned in his report (Ext. Ka-1) which he lodged on 23.9.1994 that Irshad son of Chhotey Khan and others told him that they had seen the Appellant taking the deceased. Thus, the fact mentioned in the F.I.R. (Ext. Ka-1) that Irshad (P.W. 2) had also told Laiq Ahmad (P.W. 1) about last seen of the deceased in the company of the Appellant was not in the knowledge of Laiq Ahmad (P.W. 1) on 23.9.1994 when he lodged the report and it shows that both Laiq Ahmad (P.W. 1) and Irshad (P.W. 2) are not reliable witness. Therefore, above evidence of last seen is not worth reliance.

The last circumstance is recovery of rope on the pointing out of the Appellant. The evidence of recovery on the pointing out of the Appellant is corroborative evidence and it is not substantive evidence. In this case assuming that rope was recovered on the pointing of the Appellants, there is no circumstance to connect the above rope with the murder of the deceased as no blood mark or any other mark was found on the rope. The rope was also not shown to Dr. Suresh Chandra (P.W. 9) to prove that the ligature marks, found on the neck of the deceased, were caused by that very rope. As such the recovery of rope does not link the Appellant with the crime.

Thus, the circumstances relied on by the prosecution do not conclusively prove the guilt of the appellangt. It is evident from the evidence on record that Laiq Ahmad (P.W. 1) while searching the deceased, had found Baniyan of the deceased lying in a field near Imratiya Talab as mentioned in G.D. report (Ext. Ka-1). The kothari of the Appellant existed near Imratiya Talab and the Investigating Officer had arrested him from the said kothari. It appears that on recovery of Baniyan, a suspicion was raised that the Appellant would have taken the deceased and on this suspicion entire prosecution story was set up, after the recovery of dead body of the deceased. Thus the prosecution could not establish the circumstances, which it relied and therefore, the guilt of the Appellant had not been established. The appeal thus succeeds.

The appeal is accordingly allowed. Conviction and sentence of the Appellant is set aside and he is acquitted of the offences for which he was tried. He is in jail and shall be released forthwith unless wanted to be detained in some other case.

Copy of this order be sent to C.J.M., Bareilly and Superintendent, Central Jail, Bareilly, for information and necessary action.