Islam & Others vs State Of Uttarakhand

Ravindra Maithani, J

These appeals are preferred against the judgment and order dated 07.01.2019 and 11.01.2019, passed by the court of learned Second Additional Sessions Judge, Kashipur, District Udham Singh Nagar, in Sessions Trial No. 296 of 2009, State Vs. Shahnawaj and others and Sessions Trial No. 66 of 2015, State Vs. Murad Ali. By the impugned judgment and order, the appellants Shahnawaj, Islam and Murad Ali have been convicted under Sections 302, 201 and 120-B IPC and appellant Nargis has been convicted under Section 120-B IPC. The appellants Shahnawaj, Islam and Murad Ali have been sentenced as hereunder:-

"(i)       Under Section 302 IPC imprisonment for life, and a fine of Rs.4,000/-. In default of payment of fine, to undergo rigorous imprisonment for a further period of two years.

(ii)        Under Section 201 IPC, with rigorous imprisonment for three years and a fine of Rs.2,000/-. In default of payment of fine, to undergo rigorous imprisonment for a further period of one year.

(iii)       Under Section 120-B IPC imprisonment for life, and a fine of Rs.4,000/-. In default of payment of fine, to undergo rigorous imprisonment for a further period of two years.

The appellant Nargis has been sentenced as hereunder:-

(i)         Under Section 120-B IPC imprisonment for life, and a fine of Rs.4,000/-. In default of payment of fine, to undergo rigorous imprisonment for a further period of two years."

Sakir Ali has been acquitted of the charges under Sections 302, 201 and 120-B IPC and appellant Nargis has been acquitted of the charges under Sections 302 and 201 IPC.

Since common question of law and facts are involved in all these appeals, therefore, same are being taken up together and decided by this common judgment.

The prosecution case, as unfolded, is as hereunder:-Appellant Nargis had illicit relationship with appellant Shahnawaj. All the appellants conspired together and killed the husband of the appellant Nargis. His name was Nasir. The appellant Nargis herself lodged a report on 26.05.2009 at 12:45 noon with Police Station Kashipur, District Udham Singh Nagar. According to it, her husband, the deceased Nasir had gone to get vegetables at 06:00 PM on 25.05.2009 but he did not return. He was searched but could not be traced. His dead body was found near Polytechnic. Somebody had killed him. Based on this report, of the appellant Nargis a case under Section 302 IPC was lodged.

Inquest of the deceased was prepared on 26.05.2009. In fact, the dead body was found in a canal. According to the witnesses to the inquest, the death was caused due to drowning on 26.05.2009 at 02:45 PM. The post-mortem was conducted and according to the doctor, the death was caused as a result of anti-mortem strangulation. The appellants Shahnawaj, Islam and Murad Ali were last seen with the deceased on 25.05.2009 at about 5:30-06:00 PM. The appellants were arrested, they confessed their guilt. At the instance of appellant Murad Ali, a rope was also recovered on 09.06.2009 by which the deceased was killed. After investigation charge-sheet was submitted against the appellants and co-accused Sakir. Cognizance was taken and the case was committed to the Court of Sessions for trial.

On 01.11.2010 charges under Section 302, 201 and 120-B IPC were leveled against the appellants, to which they denied and claimed trial.

Prosecution in order to prove the case, examined as many as twelve witnesses, namely, PW1 Shakeel, PW2 Reshma, PW3 Jafar Ali, PW4 Parwej, PW5 Munawar Ali, PW6 Constable Ashish Sharma, PW7 Dr. Madan Mohan, PW8 A.S.I. Neeraj Kumar, PW9 S.S.I. K.R. Arya, PW10 S.I. Vinay Kumar, PW11 M.B. Singh PW12 Jagdish Lal Tamta (PW12 was re-examined in the case but he was inadvertently numbered as PW13).

Appellants were examined under Section 313 of the Code of Criminal Procedure (hereinafter referred to as "the Code"), they denied their implications. According to them, they have been falsely implicated and they are innocent. Appellants Nargis and Shahnawaj denied of having any relationship between them. The learned court below after considering the matter convicted and sentenced the appellants, as stated hereinbefore. Aggrieved, the instant appeal.

Learned counsel for the appellant would argue that this case is based on circumstantial evidence. The chain of evidence is not complete. There are two witnesses of last seen. They are PW1 Shakeel and PW4 Parwej but, both are not reliable. The statement of PW1 Shakeel is self-contradictory and the statement of PW4 Parwej does not inspire confidence. He is a chance witness and had no occasion to see the appellants with the deceased. The motive is not proved. The statement of PW2 Reshma with regard to relationship between the appellant Shahnawaj and Nargis is not reliable, there is much inconsistencies in her statement, therefore, it is argued that the prosecution utterly failed to prove the charges against the appellants and they deserve to be acquitted and appeal allowed.

On the other hand, learned State counsel would argue that PW1 Shakeel and PW4 Parwej had seen the appellants with the deceased and thereafter, deceased was found dead. It was the burden on the appellants to tell, as to what happened to the deceased thereafter, when they were spotted with him; PW2 Reshma has stated about the relationship between appellants Shahnawaj and Nargis, which is a motive to eliminate the deceased. PW3 Jafar Ali has stated about recovery of the rope at the instance of the appellant Murad Ali by which the deceased was strangulated. Medical evidence supports the prosecution case. It is argued that the prosecution has been able to prove the charges against the appellants. No interference is warranted and the appeal deserves to be dismissed.

PW1 Shakeel is the brother-in-law of the deceased. He has stated about his relationship with the deceased. According to him, deceased left his house on 25.05.2009 but did not return. At 05:00 in the evening, he had seen the deceased Nasir with the appellants Shahnawaj and Islam on a motorcycle. According to him, on the next day, when he went to see appellant Nargis then he came to know that deceased did not return on the previous night. PW1 Shakeel has stated that on 31.05.2009, all the appellants except Nargis came to him in the night and confessed their guilt. Appellant Shahnawaj told this witness that he was in love with Nargis and wanted to marry her, therefore, he should settle the matter. They also told that they had killed Nasir by strangulation on 25.05.2009. He is the witness of recovery of rope also. According to him, on 09.06.2009, he was called by the Police and took him alongwith appellants Murad Ali and witness Zafar Ali. When they reached near a forest, appellant Murad Ali got the vehicle stopped and from behind the bushes got a plastic rope recovered and told that they killed the deceased Nasir with the help of the rope. A memo was prepared which, this witness proved.

PW2 Reshma is the wife of PW1 Shakeel , she has stated about the relationship of Shahnawaj with Nargis. According to her, she had tried to persuade appellant Nargis for not continuing her relationship with appellant Shahnawaj but she was not agreeable. Appellant Shahnawaj, according to this witness, proposed to marry appellant Nargis before him. Appellant Nargis told him that until her husband Nisar is alive, she could not marry him.

PW3 Jafar Ali is a witness of recovery of rope by Murad Ali on 09.06.2009. PW4 Parwej is the witness of last seen. According to him, on 25.05.2009, he on his motorcycle was going from Ramnagar to Kashipur. Near Peerumadara, he saw the deceased with appellants Shahnawaj, Islam and Sakir. It was about 05:30-06:00 PM. He asked the deceased to stop, they talked for a while. Deceased told him that he was going for a party in Peerumadara.

PW5 Munawar Ali is the father of the deceased. He is a witness of inquest. According to him, deceased had seen appellants Shahnawaj and Nargis together and it was a cause of quarrel between the deceased and appellant Nargis. PW6 Constable Ashish Sharma is also a witness of recovery of rope at the instance of the appellant Murad Ali.

PW7 Dr. Madan Mohan conducted post-mortem of the deceased. He proved the report; the cause of death was asphyxia, as a result of anti-mortem strangulation.

PW8 A.S.I. Neeraj Kumar is also a witness of recovery of the rope at the instance of Murad Ali. PW9 S.S.I. K.R. Arya investigated the matter and arrested the appellant Nargis. PW10 Vinay Kumar is also a witness of recovery of rope at the instance of appellant Murad Ali. PW12 S.S.I. M.B. Singh continued investigation and submitted charge-sheet. PW12 H.C.P. Jagdish Lal Tamta is formal witness, he proved chik FIR and General Diary entries. He has been again examined as PW12 H.C.P. Jagdish Lal Tamta to prove certain other documents.

The case is based on circumstantial evidence and on the basis of last seen theory. PW1 Shakeel has stated three things namely, (i) having seen appellants Shahnawaj and Islam with deceased Nisar at 05:00 PM on 25.05.2009, (ii) on 31.05.2009, extra judicial confession made to him by appellants Shahnawaj, Islam, Murad Ali and Sakir and (iii), recovery of rope on 09.06.2009 at the instance of appellant Murad Ali.

Insofar as having seen the deceased in the company of appellants Shahnawaj, Islam, Sakir and Murad Ali is concerned, the statement of PW1 Shakeel, in fact, is not reliable. In para no.2 page no.5 of his statement, he states that on 25.05.2009 at 05:00 PM. he was in his house. He further states that whole day on 25.05.2009, he remained in his house, because his son was sick. This is his statement in the cross-examination. It demolishes the statement given by him in his examination-in-chief of having seen the deceased Nasir with appellants Shahnawaj and Islam at 05:00 PM on 25.05.2009.

Insofar as extra judicial confession is concerned, according to him, on 31.05.2009, it was made before him by the appellants Shahnawaj, Islam, Murad Ali and Sakir. But he never disclosed it to Police. When asked in the cross-examination, he states that he did not tell it to the Police that appellants confessed their guilt before him on 31.05.2009. If appellants had confessed before him sometimes, in the year 2009, what prevented this witness to reveal it to the Police so that the investigation may be strengthened. For the first time, he deposed about extra judicial confession, on 04.05.2014 before the Court.

Extra judicial confession in itself is not strong evidence, it's a weak kind of evidence but when a witness speaks about it five years after the incident, for the first time in the Court, it becomes much weaker kind of evidence, which may not be acted upon, unless it is corroborate in any material particulars with some other evidence. In the instant case, this Extra Judicial Confession, about which PW1 Shakeel has stated, is not corroborated from any other evidence. Hence, it cannot be relied upon.

PW2 Reshma speaks about relationship between appellants Nargis and Shahnawaj. They are relatives; deceased Nasir was her cousin; in her examination-in-chief, she speaks that she persuaded appellant Nargis for not continuing her relationship with the appellant Shahnawaj but, according to this witness appellant Nargis was reluctant. In May 2009, according to this witness appellant Shahnawaj proposed to marry Nargis but, Nargis told him that until Nasir (his husband) is alive, she cannot marry him. But this witness did not tell it to any of her relatives. She is not neighbour of the deceased. The distance between their houses is about 100-500 meters.

In her examination, she states that she had five children. When the incident occurred, all the time she used to remain busy in maintaining her children. She had no time left. She states that she never saw appellants Nargis and Shahnawaj doing "Galat Kam". In her cross-examination she states that, just one month prior to the incident, she doubted that appellants Shahnawaj and Nargis are in relationship. In her examination-in-chief, this witness states that in front of her, appellant Shahnawaj proposed to marry Nargis and she also stated that, in fact, she persuaded her to discontinue her relationship with Shahnawaj. Whereas, in her cross-examination, she says that she doubted the relationship between Nargis and Shahnawaj, just one month prior to the death of Nasir. If PW2 Reshma doubted the relationship, then how could she witness both the appellant Nargis and Shahnawaj proposing and talking about their love affairs. Why this witness did not reveal about the relationship of appellants Nargis and Shahnawaj to any of the family members or to even her husband. It doubts the credibility of this witness, it is inconsistent and not reliable.

There is one more witness, PW4 Parwej. This witness is not of the same locality. Deceased was residing in Kashipur, whereas, PW4 Parwej is a resident of Rudrapur. He is a chance witness. He is not the relative of deceased. According to him, he had an acquaintance with the deceased Nasir. According to him, while going from Ramnagar to Kashipur, he saw the deceased on a motorcycle, he shouted and signaled him to stop. This witness at one stage says that he knew appellants Shahnawaj, Islam and Murad Ali, because they used to visit the deceased's house but in the next sentence he says that he asked about the appellants and then the deceased introduced Shahnawaj, Islam and Murad Ali to him. If this witness already knew the appellants, what was the need for him to enquire about them from deceased? And, what was the occasion of the deceased to introduce the appellants to this witness? It creates doubt about the credibility of PW4 Parvez. Even PW4 Parvez could not states as to at what place exactly, he stopped the deceased. There is no site plan of it. Which way was the deceased going? How could he identify, if both were going in the opposite directions on motorcycles? They must have crossed each other with a great speed. If they were going on the same side, how could he identify the deceased because, according to PW4 Parvez, there were three persons with the deceased. If they were on motorcycle, they must have helmet on. This witness & deceased were not frequent visitors. How did they identify each other? These all things are not explained or established by the prosecution. The statement of PW4 Parvez is not lending confidence.

According to the prosecution, a rope was recovered at the instance of Murad Ali. Ex A-1 is the recovery memo. PW1 Shakeel has stated about the recovery. According to him, on 09.06.2009 appellant Murad Ali got a rope recovered from bushes. PW3 Jafar Ali, PW6 Constable Ashish Sharma, PW8 A.S.I. Neeraj Kumar and PW10 Vinay Kumar have also stated about the recovery of the rope. How is this rope connected with the crime? Has it has been send to forensic science examination. Rope is allegedly recovered from some open place. In the instant case, this Court is of the view that this factum of recovery also does not connect the appellants with the offence.

Having considered the material on record, this Court is of the view that prosecution has not been able to prove its case beyond reasonable doubt. Learned court below committed an error in convicting and sentencing the appellants. Therefore, this Court is of the view that all the appellants ought to be acquitted of the charges framed against them and the appeals deserve to be allowed.

All the appeals are allowed. The impugned judgment and order is set aside insofar as it convicts the appellants. Appellants Shahnawaj, Islam and Murad Ali are acquitted of the charges under Sections 302, 201 and 120-B IPC. Appellant Nargis is acquitted of the charge under Section 120-B IPC.

All the appellants are in jail. They be released forthwith if not wanted in any other case, subject to their furnishing personal bonds and two sureties by each one of them, each of the like amount to the satisfaction of the court concerned under Section 437-A of the Code.

Let a copy of the judgment alongwith Lower Court Record be sent to the court below for compliance.