Mainu and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—Mr. Khaleeq Ahmad Khan, learned counsel for the appellants and Mr. Sharad Dixit, learned AGA for the State were heard.

Under challenge in the instant criminal appeal is the judgment and order dated 23.11.1982 passed by II Additional Sessions Judge, Bahraich, in Sessions Trial No. 295 of 1981 arising out of Case Crime No. 92 of 1981, under Sections 302 /34 and 201 IPC, Police Station Kaiserganj, Bahraich, whereby the present appellants and two other appellants (since dead) were held guilty for the offence under Section 302 IPC read with Section 34 IPC and were sentenced to undergo imprisonment for life.

During pendency of the instant appeal, appellant No. 3 Naeem and appellant No. 4 Wazeer expired, therefore, the appeal, so far as it related to them, was abated.

In brief, the case of the prosecution was that appellants Mainu and Mustafa are real brothers and they are sons of appellant Wazeer (since dead). The other appellant Naeem was the son in law of Bashir, who was the real brother of Wazeer. Thus, all four accused persons were closely related. One Ishtiaq is alleged to have been murdered in this case, who was a young boy aged about 23 years. He was son of Ali Bahadur of the village Belahari, Police Station Colonelganj, Gonda. Deceased Ishtiaq was married in the same village with the daughter of Bahadur. Raees was son of Bahadur and brother in law (Sala) of the deceased Ishtiaq. The appellants had enmity with Bahadur. Several criminal and civil cases were being contested by them. Accused Mainu and Mustafa were arrested in a case of dacoity and they had an impression that it was Ishtiaq on whose secret information they have been arrested by the police. In another criminal case lodged by Bahadur, Ishtiaq was a witness against appellants Mainu and Mustafa and because of these facts, appellants had animosity against deceased Ishtiaq. Prior to murder of Ishtiaq, accused Mainu and Mustafa were acquitted in the case of dacoity and thereafter all four accused persons, who were named in the first information report, came to the house of the deceased and extended threats of dire consequences to him. This incident was witnessed by Ali Bahadur (PW-2), father of deceased Ishtiaq. Deceased Ishtiaq, as per case of the prosecution, had gone to Lucknow to pull rickshaw from where he was missing. Therefore, an information of missing was given by Ali Bahadur that his son had pulled rickshaw up to 28.02.1981 and thereafter he was missing. He came to Lucknow on 12.03.1981 and made an inquiry then he came to know that appellants Mainu and Mustafa had disappeared with his son Ishtiaq. He also mentioned in the said information of missing of his son that the age of his son was 23 years. Thereafter on 30.03.1981, a dead body was seen by several persons floating in a pond. So, the village Chowkidar gave information of the recovery of the headless dead body to the police on the basis of which the case was registered. Thereafter inquest proceedings were conducted and the dead body was sent for post-mortem. As per post-mortem report, the age of the deceased was about 35 years and following ante-mortem injury was reported by the doctor:--

"Incised wound 35 cm in circumference around neck at the level of 4th/5th cervical vertebra on back root of neck in front, clotted blood was present in and around the wound. The head was absent and the neck was cut.

In the opinion of the doctor, the cause of death was shock and haemorrhage due to ante-mortem injury."

During course of investigation, the clothes, which were recovered from the body of the deceased, were taken into custody and on 22.04.1981 the same were identified by the complainant as the clothes of his son. During investigation on 09.05.1981, appellant Naeem (since dead) was arrested and on his pointing out, the weapon of offence, which was a Gandasa, was recovered. He also disclosed the name of the co-accused persons who were involved in this incident.

After completing the investigation, charge sheet was filed against the appellants and two other accused persons (since dead).

The case of the defence was of denial and their false implication because of enmity.

In order to prove its case, the prosecution has examined PW-1 Hameed - the village Chowkidar, PW-2 Ali Bahadur - father of the deceased who had recognized the clothes of the deceased, PW-3 Rashool Bux - the tailor who claimed that he had seen the deceased alive in the company of the appellants Mainu and Mustafa, PW-4 Dr. S.K. Gupta, who had conducted post-mortem on the body of the deceased, PW-5 Ati Ullah, who had come along with deceased and accused persons on a bus from Lucknow up to Ghaghra Ghat and further towards Bahraich side of the river and had last seen the deceased along with accused persons, PW-6 Siraj is a witness of recovery of Gandasa under Section 27 of the Indian Evidence Act at the instance of accused Naeem, PW-7 Constable Bhawani Prasad Singh is the persons who had taken the dead body to mortuary for post-mortem, PW-8 SI Hem Narain Singh was the Investigating Officer of this case, PW-9 is Shri R.N. Singh, the Sub-Divisional Magistrate, who had conducted the test identification parade of accused Mainu and Mustafa in district Jail Bahraich, PW-10 Shri Manjeet Singh is the photographer who had taken photographs of the headless dead body.

In defence, to prove enmity between two sides, certain documents were filed.

After appreciating the evidence on record, learned trial court convicted the appellants, as above, hence the instant appeal.

Submission of learned counsel for the appellants was that in the instant case it is not confirmed that the headless dead body, which was recovered, was of the deceased Ishtiaq because as per information of missing given by the father of the deceased, the age of the deceased was about 23 years while the dead body, which was recovered, was of about 35 years of age. It is submitted that only evidence against the present appellants even if taken to be true would be, at best, of last seen.

Learned AGA has argued that judgment of the learned trial court is well reasoned. He has drawn out attention towards following paragraph of the judgment:--

"To sum it up, it is clear that there a number of circumstances showing the complicity of these four accused in this crime. Firstly it is an admitted fact that there was enmity between the accused and deceased Ishtiaq and the family members of the deceased Ishtiaq; secondly that the accused had extended threat to the deceased Ishtiaq prior to his murder to kill him and had a motive to commit the crime in question; thirdly that after the disappearance of Ishtiaq, Ali Bahadur, the father of Ishtiaq, had lodged a report about the disappearance at police station Kotwali Chowk Lucknow in which the accused Mainu and Mustafa were shown as abductors; fourthly that the deceased Ishtiaq was last seen firstly by the tailor master Rashool Baksh at his tailoring shop at Lucknow with the accused Mustafa and secondly by Atiullah PW-5 along with all the four accused who travelled with the accused and the deceased from Lucknow to Ghaghra Ghat by bus; fifthly that there was an extra judicial confession by the accused Naeem regarding the guilt; sixthly that there was recovery of weapon of the offence namely Gandasa under Section 27 of the Indian Evidence Act at the instance of the accused Naeem; and lastly the subsequent conduct of the accused Mainu and Mustafa in keeping themselves hidden and secret just after the murder of Ishtiaq which is relevant under Section 8 of the Indian Evidence Act. The totality of these circumstances appearing against the accused explicitly establish the complicity of the accused in this crime."

On the basis of above noted findings learned AGA has argued that the chain of circumstances was complete.

It is a case of circumstantial evidence. Law is settled on the point that all the circumstances must be established by the prosecution beyond reasonable doubt. All the circumstances taken together must form a chain so complete in itself that it should not be capable of any other interpretation except the guilt of the accused. Reference on this point may be made to the pronouncement of Hon''ble the Apex Court in the case of Sk. Yusuf Vs. State of West Bengal, 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 on circumstantial evidence, but the Court must bear in mind the aforesaid tests while deciding a case involving the commission of a serious offence.

Hon''ble the Apex Court in the case of Manthuri Laxmi Narsaiah Vs. State of A.P., has held in paragraph No. 6 as under:--

"6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence."

The aforementioned judgments have been followed in a recent judgment in the case of Sangili Vs. State of Tamil Nadu, .

Hon''ble the Apex Court in the case of Satni Bai Vs. State of Madhya Pradesh (Now Chhattisgarh), .

"11. It has been consistently laid down by this Court, that when a case rests only on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances (See State of U.P. v Satish reported in 2005 SCC (Crl) 462).

In Joseph Poulo Vs. State of Kerala, , the Court has explained under what circumstances conviction can be based purely on circumstantial evidence. It is observed that:

"It is often said that though witnesses may lie, circumstances will not, but at the same time, it must cautiously be scrutinised to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain, unerringly pointing to the guilt of the accused."

This Court in Padala Veera Reddy Vs. State of Andhra Pradesh and others, has observed that when a case rests on circumstantial evidence, the following tests must be satisfied:

(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; and

(4) 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.

In C. Chenga Reddy and Others Vs. State of Andhra Pradesh, this Court has held that:

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn, should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

In State of U.P. Vs. Ashok Kumar Srivastava, , it was pointed out that:

"9. ...Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted."

"9. ...The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of {the guilt}."

The principle that would emerge from these decisions is that conviction can be based solely on circumstantial evidence, but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court."

Learned trial court has relied upon the enmity of the deceased with the appellants and also relied on the ground that threat was extended by the accused persons to the deceased. Admittedly, no first information report of any such threat was lodged with the police. The information of missing of the deceased was also taken as an additional circumstance against the appellant in which accused Mainu and Mustafa were shown as abductors and the evidence of last seen by the tailor master Rashool Bux and also the evidence of PW-5 Atiullah. Recovery of weapon under section 27 of the Indian Evidence Act on the pointing out of appellant Naeem was also taken as an additional circumstance and the subsequent conduct of appellants Mainu and Mustafa that they kept themselves hidden was also taken as an additional circumstance against them.

So far as the circumstance of recovery under Section 27 of the Indian Evidence Act is concerned, it was only regarding the appellant Naeem (since dead). So such recovery could have been used only with regard to appellant Naeem. His statement wherein he has disclosed the name of other accused persons was inadmissible in evidence as the same did not lead to any recovery. The perusal of evidence of two witnesses who have given evidence on the point of last seen shows that they have not stated on which date and at what time they had seen the deceased in the company of the appellants. PW-3 Rashool Bux has stated that he had seen the deceased in the company of the present two surviving appellants who had come to his shop but he has no where stated as to on what date or how many days prior to the death of the deceased he had seen the deceased alive in the company of two accused persons. Thus, the evidence of this witness cannot be treated to be the evidence of last seen because the dead body of the deceased was recovered on 30.03.1981 and this witness has nowhere stated that as to how many days prior to said recovery of the dead body he had seen the deceased in the company of the appellants.

Next witness on the point of last seen was PW-5 Atiullah. He has stated that he sat in a bus at Nishatganj Chauraha, Lucknow. He was coming on bus in the evening. In that bus, all four accused persons were also sitting. He came to Ghaghra Ghat where all passengers got down from the bus and crossed the river on their feet. Thereafter, he along with Ameer Hasan again boarded the bus for their homes. However, deceased Ishtiaq and accused persons did not board the bus. He made an inquiry as to whether they will not go to their house then they told him that their house is at a shorter distance from Ghaghra Ghat and they shall go on feet. He has stated that he is a rickshaw puller. He had gone to Lucknow to pull rickshaw 8-10 days prior to the said incident. He has also stated that after about one month he had disclosed this fact to the complainant but the evidence of this witness is absolutely silent on the point as to when or how many days prior to recovery of the dead body he had seen these persons in the company of the deceased. In such nature of cases this time factor assumes great importance because shorter the time gap the greater shall be the burden of the accused persons to explain as to where they left the deceased. But in the instant case these two witnesses of last seen have nowhere stated as to how many days prior to recovery of the dead body they had seen the deceased in the company of the appellants. According to post-mortem report, the duration of death was about one week. The post-mortem on the dead body was conducted on 31.03.1981. So the death of the deceased must have occurred on or about 24.03.1981. In absence of any evidence as to when these witnesses saw the deceased alive, this evidence of last seen becomes meaningless in absence of any other circumstance to connect the appellants with the present offence. Learned trial court has not the least considered the main weakness of the prosecution''s case that in the information of missing the age of the deceased was mentioned by his father to be 23 years while the headless dead body which was recovered was of a man aged about 35 years. This important fact goes very much against the prosecution case. The dead body was recovered on 30.03.1981 and the clothes of the deceased were identified as per Ext. Ka-9 proved by PW-8 on 22.04.1981. So even if all the circumstances are taken together even then the only thing that remained against the appellants was that of strong motive but law is settled on the point that motive, howsoever strong, cannot take place of proof. Apart from it, there is no evidence as to how many days before the recovery of the dead body the deceased was seen in the company of the accused persons. The evidence of last seen cannot be taken to be any incriminating circumstance against the appellants because if the time gap is long enough then this evidence would become meaningless. In the instant case, the deceased was missing since 28.02.1981 and the clothes of the deceased were identified on 22.04.1981 while the death, as per medical evidence, took place on or about 24.03.1981.

PW-9 R.N. Singh has proved the identification memo of the accused, wherein the accused was correctly identified by the witness but the witness who has identified the accused persons was a witness of last seen. As stated earlier, the witness during trial has not disclosed the date, time and place on which he has seen the deceased in the company of the appellants. Learned trial court has also taken into consideration the post incident conduct of the appellants that they hide themselves but no such circumstance was put to the appellants in the statement under Section 313 Cr.P.C., and therefore, the appellants could not get any opportunity to explain the said circumstance as to where they remained. Even the Investigating Officer has not stated in his evidence as to when these persons were arrested or surrendered. The charge sheet in this case was filed by the police on 22.07.1981. It transpires from perusal of the record that appellant Mustafa was in custody in some other case and he was summoned under Section 267 Cr.P.C. by the court in the instant case. Thus, the post event conduct of the appellants could not have been taken as an additional circumstance against them because the same was not put to them as an incriminating circumstance.

After going through the entire prosecution evidence, we are of the considered view that the prosecution has failed to complete the chain of the circumstances against the appellants and therefore the conviction of the appellants recorded by the learned trial court becomes unsustainable under law. Accordingly, this appeal deserves to be allowed and is hereby allowed. Appellants Mainu and Mustafa are hereby acquitted of all the charges levelled against them. They be set at liberty. They are in custody. They shall be released forthwith if not wanted in any other case.

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