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Judgment
This common judgment shall govern disposal of (i) Criminal Reference No.03/2016 made by 2 nd Additional Sessions Judge,
Shajapur against the death sentence passed by him in judgment dated
10.06.2016, in Session Trial No.114/2013, wherein the learned
Sessions Judge found the accused persons Aamin Kha S/o Kadar Kha,
Mithun S/o Babulal, Sheikh Dawood S/o Kadar Kha and Sheikh
Amjad S/o Kadar Kha guilty under Sections 302 / 34, 201 of IPC and
sentenced them to death and rigorous imprisonment of 7 years
respectively and fine of Rs.25,000/- and rigorous imprisonment for 1
year by way of default stipulation, thereafter, the reference is made
under Section 366 of Cr.P.C. for confirmation of death sentence; and
(ii) Criminal Appeal No.823/2016 preferred to this Court by all the
accused persons aggrieved by the aforesaid impugned judgment of
conviction and sentence.
The prosecution story in brief is that Yunus Kha, brother of the
deceased Yakub Kha lodged a report of missing person on 25.12.2012,
in which, it was stated that his brother, deceased Yakub Kha went to
Dhanana from Akodiya. He had to recover amount of loan from the
accused Aamin Kha S/o Kadar Kha. He talked on phone from village
Dhanana, and thereafter, he went to some other place from Dhanana
and, thereafter, he was not traceable. His brother went to village
Dhanana on a motorcycle bearing registration No.MP-04-NA-7558
and was carrying a mobile phone.
On 11.01.2013, a phone call was received by Station In-charge
Salsalai, District Shajapur at 10:20 a.m. from some unknown person.
On telephone, the Station Incharge was informed by the caller that the
accused Aamin Kha resident of Dhanana alongwith his two brothers
Sheikh Dawood Kha and Sheikh Amjad Kha and also with Mithun,
their friend, committed murder of the deceased. They dismembered
his body into pieces and put the body pieces into a dry tubewell
situated on the land of accused Aamin. This information was recorded
by the Station Incharge in Station Daily Diary on 11.01.2013 at Sr.
No.197 at 10.20 a.m. He informed his senior officers and this fact
was also recorded by him at Sr. No.198. He sent a letter for obtaining
permission to Sub Divisional Magistrate to dig open the tubewell, and
thereafter, he proceeded to village Dhanana in a official vehicle
bearing registration No.MP-03-AC-529.
Reaching the place where the dry tubewell was located, he
obtained permission from Tehsildar Ms. Asha Parmar and with help of
an excavating machine, at 2.00 p.m., digging of the tubewell was
begun. At about 4.00 p.m. pieces of body of the deceased and his
clothes were visible. Two palms of the body were recovered in which
rings were present. Alongwith him, he took brother of the deceased
Yunus Kha (P.W.-2) and also paternal uncle Gul Akbar Kha (P.W.-5)
and Abdul Akbar (P.W.-14) cousin brother of the deceased. With help
of the rings and clothes that came out of the dry tubewell, they
identified the body of the deceased. Thereafter, he registered dehati
merg Exb. P-13 and dehati nalish Exb.P-34 and sent them to police
station for registration of the crime. On the basis of dehati nalish, the
crime was registered and the First Information Report was prepared,
which is Exb.P-35.
Digging of tubewell continued till 15.01.2013. In all 60 pieces
of body were recovered, which were collected and sent for
postmortem. Postmortem was conducted by Dr. N.K. Gupta (P.W.-13).
Dr. N.K. Gupta was at that time posted at District Hospital Shajapur
on the post of Medical Officer. After examining the pieces of the dead
body, he referred the matter to Medico Legal Institute Bhopal. He
alongwith other two doctors, Dr. Kelu Grewal and Dr. G.L. Gupta,
who were specialists posted at Medico Legal Institute Bhopal,
performed postmortem on the dead body of the deceased. In
postmortem report, it was found that the death was homicidal. There
were signs that injury on his head was caused by hard and blunt object
and also on pieces of his neck, signs of throttling were present.
When the Investigating Officer- Manohar Singh (P.W.-16)
reached on the spot, all the four appellants were present there on
11.01.2013. They remained with the police till 16.01.2013 when they
were formally arrested. After their arrest, their disclosure memo were
prepared. From their disclosure memo, some instruments known as
''Baka'' which was used for chopping of meat, axe and knives were
recovered from a nearby field, which were kept hidden by the
appellants. According to prosecution story, these instruments were
used for dismembering the body of the deceased. One slipper
allegedly worn by the deceased, was also recovered, which was blood
stained. Also the motorcycle of the deceased was recovered from a
small pond located in Rajasthan adjacent to the border of Madhya
Pradesh. This motorcycle was recovered on 18.01.2013. One register
was also seized by the investigating officer from Himalaya Lodge
located at district headquarter Agar, where it was alleged that accused
Aamin and Mithun stayed for night when they were coming back after
throwing the motorcycle of the deceased.
The piece of femur bone of the deceased Yakub Kha, his hair,
his muscles, blood sample of Haji Kha, father of the deceased, blood
sample of his brother Yunus Kha were sent for DNA examination.
Other articles like blood stained soil, plain soil, clothes of the
deceased, slipper of the deceased, which was recovered on memo, one
axe, one knife and one baka were sent for serological examination to
Forensic Science Laboratory.
After completing all the investigation as aforesaid, the charge-
sheet was filed. The learned Judge of the trial Court framed charges
under Sections 302 / 34 and 201 of IPC and after recording evidence of
both the prosecution and the defence and also examining the accused
under Section 302 IPC, the accused were convicted and sentenced as
aforesaid.
Aggrieved by the judgment of conviction, the appellants filed
this appeal on following grounds :-
(i) That the judgment is contrary to law and fact.
(ii) That the judgment passed by the learned trial Court is
against the established principles of law.
(iii) The learned trial Court erred in discarding the defence
version altogether.
(iv) The inferences drawn by the trial Court were unwarranted and not substantiated by legally admissible
evidence.
(v) There were material omissions and contradictions in the
statements of the prosecution witnesses, which were not taking
into consideration by the trial Court.
(vi) The conviction is bad in law.
Learned counsel for the respondent/State submits that the
inferences drawn by the learned trial Court are based on evidence
produced by the prosecution, which is admissible and lead to the
conclusion that the present appellants committed the crime, and
therefore, no inference is called for. He submits that the appeal filed
by the present appellants may be dismissed and death sentence passed
on them may be confirmed.
Before proceeding to examine the evidence produced by the
prosecution, we may enlist here, what evidence is available against
the appellants. The evidence that is available is as follows :-
(i) That the pieces of dead body of the deceased were
found from a dry tubewell located on a land, which was
allegedly in possession of the appellant Aamin.
(ii) On disclosure memo of the appellants, one knife, one
baka, one axe were recovered from the nearby field hidden
under the crop.
(iii) One motorcycle belonging to the appellants was
recovered hidden on their disclosure memo, one motorcycle
belonging to the deceased, on which, the deceased travelled
upto village Dhanana was recovered on disclosure memo of
the appellants from Jhalra Patan, Rajasthan, village Kedla
from a small pond.
(iv) During the postmortem, the team of doctor opined that
the deceased was given a blow by hard and sharp object on
his head which could be caused by the axe recovered on
disclosure memo by the present appellants.
Learned counsel for the appellants submits that Gul Akbar Kha
(P.W.-5), who is real paternal uncle of the deceased and Akbar (P.W.-
14), who is cousin brother of the deceased, were made attesting
witnesses of all the documents prepared by the investigating officer, at
the time of investigation. From identification of the dead body, two
disclosure memos under Section 27 of Evidence Act and various
seizure memos, they were made attesting witness throughout.
According to him, Section 100 (4) of Cr.P.C . provides as under :-
"(3) ....................... (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. (5) ............................." 13. This sub section provides that search should be in presence of
two or more independent and respectable habitants of the locality,
where the search was made. Attesting witness could be of other
locality, but for that a condition ought to be satisfied that no habitants
of the locality was available to the investigating officer or that the
persons who were available there were not willing to be witnesses to
the search.
Learned counsel appearing for the appellants argues that there is
nothing on any of the documents to show that no other person was
available on the spot or the available persons were not willing to act
as attesting witnesses. He further submits that the investigating officer
did not make any search of the area near the tubewell while the JCB
machine was excavating the tubewell to make sure whether any
instrument or weapon of murder was available around. Baka, knife
and axe recovered by the police were recovered from a place very
near to the tubewell, and therefore, there was a lapse on part of the
investigating officer. He also submits that recovery of motorcycle is
also doubtful. Commission of the crime was not in exclusive
knowledge of the present appellants. Admittedly, some unknown
persons informed the police about the incident. The investigating
officer admitted in his statement in para 43 that before proceeding to
village Dhanana, he knew the names of the accused persons and also
knew how the crime was committed. Somebody must be knowing that
the dead body was in the tubewell, and therefore, it is also possible
that somebody knew that where the motorcycle belonging to the
deceased was, and therefore, when factum of presence of a thing is in
knowledge of some other persons also such piece of evidence is not
relevant and cannot form basis of conviction.
In light of above submissions, we may now proceed to examine,
the evidence produced by the prosecution in detail.
In this matter, oral evidence is not very important, as the
prosecution case is purely based on circumstantial evidence. The
family members of the deceased only deposed in respect of purpose
for which the deceased visited village Dhanana. There are three main
witnesses examined by the prosecution. Yunus Kha (P.W.-2) is real
brother of the deceased. He stated that on 18.12.2012, he went to
Kalapipal and left home at about 9.45 a.m. At about 3.23 p.m., he
received a phone call from the deceased Yakub Kha. He informed him
that he caught hold of accused Aamin Kha near Gulana and he also
informed him that accused Aamin told him that he would repay the
amount within 3 - 4 days. He informed his brother and father on
phone, who told him that they would take money later on.
Subsequently, he called his brother (the deceased) at 5.00 p.m. on his
mobile phone No.9926376059, but his mobile phone was switched
off. Thereafter, he did not come back home, and therefore, from
19.12.2012, they started searching for him. Finally, after 6-7 days, he
lodged a complaint of missing person, which is Exb.P-3. A similar
statement that the deceased went to village Dhanana to recover the
amount back, which he lent to accused Aamin, also given by (P.W.-3)
Haji Kha and wife of the deceased Soni Bee (P.W.-7). All these three
witnesses basically deposed that the accused Aamin owed Rs.17,000/-
to the deceased, which he obtained from the deceased to meet
expenses of delivery of his wife and for recovery of which, the
deceased went to meet him on 18.12.2012. This piece of evidence is
presented by the prosecution to show that he was last seen together
with deceased Aamin alive. However, strictly speaking, this does not
amount to evidence regarding last seen together alive because the
prosecution witnesses did not see him with the accused Aamin and
only on phone, they came to know that he met him when he talked to
them whether the accused Aamin was with him or not, was not
proved. Once he left company of the deceased, the principle of last
seen together cannot be used as a piece of evidence against the
accused. This apart, oral information on phone by the deceased to his
brother and father was not covered by Section 32 of Evidence Act and
was a hearsay evidence, not admissible as such. Another important
oral evidence is medical evidence of Dr. N.K. Gupta (P.W.-13), who
performed postmortem on the basis of body recovered from the
tubewell alongwith two other specialists doctors at Medico Legal
Institute Bhopal. The important aspect of his evidence is that death of
the deceased was homicidal and also that they found signs of one
lacerated wound on his skull, which could be caused by hard and
blunt object and also there were sign of strangulation found on his
neck. Since, the body was cut into various pieces, there could be no
doubt that the nature of death was homicidal and not accidental or
suicidal, and accordingly, on this point, no further discussion is
required.
There are two other witnesses Gul Akbar Kha (P.W.-5). He is
real paternal uncle of the deceased and he alongwith Abdul Akbar Kha
are the attesting witness of all the seizure memo and disclosure memo
under Section 27 of Evidence Act etc. In respect of these witnesses,
the counsel appearing for the appellants submits that as per the
provisions of Section 100 quoted above, it is incumbent on the
investigating officer to prepare the seizure memo before the local
residence, in case, no such resident is available or those who were
available, were unwilling to act as attesting witness, there should be a
note on the memorandum. In this case, however, no such note was
appended on the seizure memo, instead, same witnesses, who were
closely related to the deceased, acted as attesting witnesses throughout
and according to learned counsel for the appellants, this creates a
doubt on the story of the prosecution.
Learned counsel for the State, however, submits that there is no
bar in Evidence Act that a close relative of the deceased cannot act as
attesting witness.
In our opinion, however, it is true that there is no bar that close
relatives of the deceased can act as attesting witnesses, however, their
probative value diminishes considerably. Being close relatives of the
deceased, their oral evidence has to be subjected to close scrutiny.
In this case, so far as the facts of recovery of pieces of the dead
body from the tubewell is concerned, such facts were not disputed and
also identity of the deceased was also not disputed by the appellants.
However, the case of the prosecution hinges on recovery of weapons,
which were used for dismembering the body of the deceased, and axe,
which was allegedly used for murder, and finally, the recovery of
motorcycle from a bordering village located in the State of Rajasthan.
Taking into consideration the recovery of instruments used for
dismembering the body, the investigating officer Manohar Singh
Thakur (P.W.-16) prepared seizure memo on the basis of disclosure
memo of accused Aamin Kha Exb.P-17. In his disclosure memo, he
stated that the axe and other instruments were in the standing crop in
his field. On the basis of this memorandum, one knife was recovered
by Exb.P-20, one axe was recovered by Exb.P-21, one baka was
recovered on disclosure memo by Dawood Kha by Exb.P-25 from the
field of Aamin Kha on which there was crop standing. This apart, one
slipper was recovered on the disclosure memo by Mithun from bushes
near Rani Rupmati Tomb, Sarangpur, allegedly belonging to the
deceased and stained with blood and also one motorcycle belonging to
the accused persons was recovered hidden in a fodder.
These are the articles recovered after 17.01.2013 onwards.
Learned counsel for the appellants submits that when the
investigating officer received information on telephone regarding
commission of an offence, he was already knowing that offence was
committed by the present appellants. This fact was admittedly
informed to him on telephone by a stranger. He called all the accused
persons on 11.1.2013 when digging of tubewell began. The appellants
were with him throughout, but he did not make any search around the
tubewell and in the adjacent field and only recovered the articles after
16.01.2013 when the present appellants were formally arrested. These
indicates that he was already knowing the facts that such instruments
were around the tubewell from where the dead body was recovered.
Here, also no independent witness from village Dhanana was called
and while preparing the seizure memos and disclosure memos, very
close relatives of the deceased were made attesting witnesses of these
documents, and therefore, their statements are doubtful.
Going through the statement of investigating officer, it is
apparent that the present appellants were available on the spot when
digging of tubewell started on 11.01.2013. By 6:00 o''clock, on
11.01.2013 body of the deceased was identified. Dehati merg and
dehati nalish prepared by the investigating officer. There was no
reason for not recording their disclosure memo because for recording
disclosure memo, their formal arrest was not necessary and they may
be formally arrested, as the body was identified. Instead the
investigating officer waited upto 16.01.2013, and thereafter, he
recorded the statements. The possibility cannot be ruled out that
between 11-16.01.2013, he was already knowing existence of such
instruments in the crop and there is also possibility that such
instruments were implanted in the nearby crop to implicate the
accused persons. It is also unnatural on the part of the present
appellants that they would throw the instruments in the crop when
parts of the body including clothes of the deceased were thrown in the
tubewell and, as such, the instruments could also be thrown in the
tubewell alongwith body. This appears unnatural.
So far as slipper of the deceased is concerned, the slipper was
recovered on the basis of disclosure memo of Mithun on 17.01.2013.
This slipper was sent for serological examination to Forensic Science
Laboratory. It was not sent for DNA test and in the serological
examination, no blood was found on the slipper. No identification was
done by the family members of the deceased to show that the slipper
belonged to the deceased. The family members were available
throughout and they identified clothes and rings worn by the
deceased, but the investigating officer failed to get the slipper
identified by them and, in this situation, it cannot be said that slipper
recovered by the police during the investigation belonged to the
deceased. Over the instruments recovered from the nearby field, in the
FSL report, human blood was found. However, blood group could not
be ascertained and results were inconclusive, and therefore, it was
also not proved that they were the same instruments used for
dismembering body of the deceased.
This brings us to the another important piece of evidence
produced by the prosecution i.e. recovery of motorcycle belonging to
the deceased. The motorcycle was recovered from village Bagdal,
State of Rajasthan from a small pond, which is located near a blue
coloured temple and which is located at 7 km. before Jhalra Patan on
Dhar Road. According to Investigating Officer- Manohar Singh (P.W.-
16), he proceeded to village Bagdal on 18.01.2013 alongwith two
attesting witnesses Gul Akbar (P.W.-5) and Akbar (P.W.-14) and they
recovered a Hero Honda motorcycle bearing registration No.MP-04-
NA-7558, which belonged to the deceased and on which, he travelled
to village Dhanana. To show that the appellants- Aamin and Mithun
travelled upto village Bagdal on this motorcycle, prosecution has
examined Pirulal Soni (P.W.-1), owner of Himalaya Lodge at Agar
Malwa. In his examination-in-chief, he turned hostile, however, he
stated that Sheikh Dawood and Sheikh Amjad came to his lodge at
about 6-8 months before the date on which his statement was recorded
and they stayed in his lodge for the night. The police came to his
lodge subsequently. They enquired about the appellants, and
thereafter, they seized one register, seizure memo which is Exb.P-1.
He signed the seizure memo.
This witness was declared hostile, however, in cross
examination, he admitted that he gave statement to the police which is
Exb.P-2. In his statement which is marked as Exb.P-2, this witness
stated that on 19.12.2012 at about 9.30, two boys came to his lodge
and when he asked their names, they gave their names as Mithun S/o
Babulal and Aamin Kha S/o Kedar Kha Musalman. They also told
him that they were coming from Ramganj Mandi, Rajasthan and they
would go to Baiyar Nagar. Next morning, they left the lodge. On close
examination of the register, which is marked as Article A-11 and the
statement of Perulal (P.W.-1), Exb.P-2, there appears to be some
discrepancy in the register. The room, where they slept was shown as
Room No.12 and date of arrival was 21.11.2012. No explanation was
sought by the prosecution in respect of date mentioned in the register.
However, looking to the earlier entries even if it is assumed that the
date is 21.12.2012, it did not match with the statement, he gave on
18.01.2013 when register was with him stating that the appellants
came to stay on 19.12.2012. This apart, no time of leaving the lodge is
mentioned in front of their names and also one more customer was
shown as stying in the same room. Whether the room which was
allegedly given to the appellants contained three beds or two beds or it
was a dormitory hall, was not clarified by the prosecution. Moreover,
there was no explanation from the investigating officer as to how he
came to know that two appellants stayed in Himalaya Lodge while
they were coming back from village Bagdal. In their disclosure memo
under Section 27 of Evidence Act, which are marked as Exb.P-16 and
P-17, the two appellants Mithun Malviya and Aamin Kha did not
disclose anything about their stay in Himalaya Lodge and this made
the entries in the register highly suspicious. This apart, the attesting
witnesses as stated earlier were close relatives of the deceased and
their statements cannot be easily relied upon. It is also very strange
that no person from village Bagdal was examined by the prosecution
to show that the police came to village Bagdal. They took out the
motorcycle from the small pond with help of a rope. Who brought the
rope, who went inside the pond, who tied the rope to the motorcycle
was not proved by the prosecution. No intimation was given to the
local police station while conducting investigation in different state, in
territory of a different police station, in which the I.O. had no
authority to investigate. These aspects were not explained by the
investigating officer and this creates a doubt whether infact they went
to the village Bagdal to recover the motorcycle or they created a false
evidence merely to implicate the present appellants, and therefore, this
recovery of motorcycle from village Bagdal from a small pond is not
reliable.
Apart from this, the trite law is that recovery should be from
such place which is exclusively in knowledge of the appellants. When
there is possibility of knowledge of the place to some other person,
such recovery is of no use. On this point, the learned counsel for the
appellants relied on judgment of Chhatisgarh High Court in case of
Bhoklo vs. State of Madhya Pradesh; 2013 Cri.L.J. 2858 in which
the Chhattisgarh High Court placing reliance on judgment of Hon''ble
Apex Court in various cases observed that when there is possibility of
third person, other than accused, being assailant and knowing the
place where such property was hidden, this piece of evidence cannot
form basis of conviction in the present case. It is admitted that some
stranger informed the police about the presence of body in the
tubewell. Investigating Officer Manohar Singh Thakur (P.W.-16) in
para 43 of his statement said that the source which informed him
about the crime, also informed names of all the accused persons and
also how the crime was committed. There is possibility that he was
also informed about the motorcycle of the deceased, and therefore,
when fact of the article, which was recovered on the basis of the
disclosure memo under Section 27 of Evidence Act was already in
knowledge of some persons other than the appellants, such pieces of
evidence is not reliable.
Last aspect of the prosecution case is the motive. The motive in
this case is shown to be the amount of Rs.17,000/- which the deceased
lent to accused Aamin Kha and as per the prosecution story, the
deceased went to recover the amount from Aamin. However, the
amount of Rs.17,000/- appears to be too meagre to commit a murder
of a person. There was no evidence of enmity between the appellants
and the deceased. It did not instill any confidence in this Court to
believe that a person would kill only because he owed him
Rs.17,000/-. The appellant Aamin Kha is stated to be owner of
Agricultural land, may be on a particular time, he was in need of
money, so he obtained the loan from the deceased. However, he would
kill the deceased for such a small sum makes no sense.
Learned counsel for the appellants placed reliance upon the case
of Sharad Birdhichand Sarda vs. State of Maharashtra ; (1984) 4
SCC 116 in which the Hon''ble Apex Court laid down the requirement
when the case is purely based on circumstantial evidence. On the
similar aspect, he cited judgment of Aghnoo vs. State of Bihar ; AIR
1966 SC 119, Kansa Behera vs. State of Orissa ; (1987) 3 SCC 480
and Sangili @ Sanganatham vs. State of Tamil Nadu ; AIR 2014
SC 3756.
As stated earlier, in this case, the evidence produced by the
prosecution is not reliable. The circumstances in this case are not fully
established which conclusively indicate towards the guilt of the
appellants and also they are not consistent with hypothesis of guilt of
the appellants. There are possibilities that some other person who
informed the police regarding commission of the crime, was the actual
culprit. The investigating officer Manohar Singh Thakur failed to
identify and locate the person to ascertain how he came to know about
the incident.
In such a situation, we are of the opinion that the appeal filed by
the appellants deserves to be allowed and accordingly allowed. The
appellants are acquitted from charges under Section 302 / 34 and 201 of
IPC.
The fine if deposited by the appellants may be refunded to
them.
The mobile phone recovered from appellant- Amjad Kha may
be returned to him and other property mentioned in para 78 of the
judgment of the trial Court shall be destroyed.
The motorcycles are already on supurdaginama to Sheikh
Dawood and Haji Kha. The supurdaginama of these motorcycles are
hereby discharged.
As a result of allowing of appeal filed by the appellants
bearing No.Cr.A.823/2016, the criminal reference No.03/2016 fails
and answered accordingly.