Mohd. Jamal vs State

Dr. S. Muralidhar, J

This appeal is directed against the impugned judgment dated 29th November 2013 passed by the learned Additional Sessions Judge-3/South District,

Saket Courts, New Delhi (ASJ) in Sessions Case No.23 of 2013 arising out of FIR No.89 of 2010 registered at Police Station (“PSâ€) Fatehpur

Beri convicting the Appellant for the offence under Sections 302 and 201 IPC. This appeal is also directed against the order on sentence dated 30th

November 2013 whereby for the offence under Section 302 IPC he was sentenced to undergo imprisonment for life with a fine of Rs. 5,000 and, in

the event of non-payment of fine, to further undergo simple imprisonment (“SIâ€) for a period of one year. By the same order, for the offence

under Section 201 IPC, he was sentenced to undergo five years of rigorous imprisonment (“RIâ€) with a fine of Rs. 2,000, and in default of

payment of fine, to undergo further SI for a period of six months.

At the outset, it requires to be noticed that the Appellant was also charged with the offence under Section 363 IPC but has been acquitted by the

trial Court of that offence. Although the FIR included Section 376 IPC, he was not charged for that offence.

Case of the prosecution

The deceased in this case, Shabnam, was aged 11 years at the time of death. She was the daughter of Hazra (PW-6) and Abdul Sattar (PW-5),

both of whom are residents of Mandi Pahadi Village, Bapu Colony, Fatehpur Beri, New Delhi.

The case of the prosecution is that on the intervening night of 16th/17th May 2010, PW-5 came to PS Fatehpur Beri and lodged a complaint about

the deceased having gone missing from his house since 6 pm on 16th May 2010. This was noted down as DD No.4A (Ex.PW-18/A and 1/A) and was

marked to Assistant Sub Inspector (“ASIâ€) Lal Singh (PW-1). In the said entry it was noted that a 11-year-old girl who was around 4 feet in

height, fair coloured and round faced, wearing black hawaii chappal and yellow coloured salwar suit and who was studying in Class V had gone

missing. PW-5 informed the police that his daughter was at home with his wife, Hazra (PW-6), at 4 pm. Thereafter, at 6 pm, they realized that their

daughter was not to be found. Assuming that the child had left their home without informing them, they searched the neighbourhood but were unable

to find her. PW-5 specifically stated that “hame kissi par koi shaq shukwa nahi haiâ€​.

It appears that PW-1 went to the house of the complainant at 45-A, Bapu Camp, Mandi Pahadi, Delhi, prepared the tehrir (Ex.PW-1/A) and then

dispatched it to the PS for registration of the FIR. He went back to the spot to record the statements of both PWs 5 and 6 under Section 161 Cr PC

(neither of which have been exhibited). PWs 5 and 6 stated that they suspected one Jamal @ Rafu who lived in the neighbourhood and took the child

away at around 4 pm stating that he needed help with some iron (loha) lying in the jungle and that he would pay the deceased Rs. 20. This was the

initial statement of PW-5 and also the first time the Appellant’s name figured. Nevertheless, at that stage, the police do not appear to have taken

any steps which is strange considering that the Appellant is a resident of the same area.

According to PW-5, on 19th May 2010, he came to know through certain public persons that the body of a child was lying in the ridge area of

Mandi Pahadi. In the morning, at 8.45 am on 19th May 2010, Inspector A.K. Singh (PW-16) was informed of this development. He reached the spot

where the dead body of the child was found. When he arrived there, PSI Amit, HC Mahavir (PW-8) and Ct. Dinesh had already reached. The dead

body was in a highly decomposed state. PW-5 was already present and he identified it to be that of his daughter, Shabnam.

Since FIR No. 89 of 2010 had already been registered under Section 363 IPC, Inspector A K. Singh (PW-16) took up the investigation. With his

own digital camera, he took some photographs (Ex.PW-16/P1 to P5) and also prepared a rough site plan (Ex.PW-16/A) of the location where the

dead body was found. From the spot, PW-16 lifted body fluid mixed with earth and hairs of the deceased in separate plastic containers. These were

then sealed with the seal of ‘AKS’. The dead body was shifted to All India Institute of Medical Sciences (‘AIIMS’).

Medical Evidence

The post-mortem of the deceased was performed by Dr. Akhilesh Raj (PW-13). In his post-mortem report dated 19th May 2010 (Ex.PW-13/A) he

inter alia noticed that the body was in an advanced stage of decomposition. He noted that a foul smell was emanating from the body and there were

maggots distributed all over the body. He noticed that a salwar and a kurta were present on the body and skeletisation of skull was present. The right

leg below the knee was missing. The left leg below the knee was also missing but fibia was found attached to the knee joint. Both hands were

missing. Numerous maggots were present over the anterior neck, vagina and anus. There were 11 teeth in the upper jaw and 6 teeth in the lower jaw

and 15 teeth were loosely attached to the sockets. There was extravasation of blood into the subcutaneous tissues of the lateral aspects of the neck

and also into inter-muscular planes and muscles. It is also noticed that the hyoid bone was found to be fractured. A bruise of size 6 x 4 cm was

present over middle back, 3 cm right of midline, 17 cm above right iliac chest. A bruise of size 10 x 7 cm was present in the middle back, 2 cm lateral

to midline towards left side and 15 cm above left iliac chest. No external injuries are applicable. Right fibia and fibula and left fibula are separately

present.

The time since death was noted as three days. Among the swabs taken were vaginal swab, anal swab, control swab, sternum for DNA and blood

in gauze. The opinion as to the cause of death was asphyxia due to throttling. The viscera was preserved to rule out any intoxication. The possibility of

sexual assault could not be commented upon till the results of the vaginal and anal swabs were known.

Arrest of the Appellant and subsequent recoveries

On 21st May 2010, Inspector Vijender Jain (PW-15), who was the Station House Officer (“SHOâ€) of PS Fatehpuri Beri took over the

investigation of the case. He received information that the Appellant might be present at the Mandi bus stand. Accompanied by Head Constable

(“HCâ€) Mahavir (PW-8) and Ct. Prem, he reached the bus stand and at the instance of the informer, apprehended the Appellant. His disclosure

statement (Ex.PW-8/E2) was recorded. In the said disclosure statement, inter alia, the Appellant offered to get recovered a slipper of the deceased,

the water bottle which the deceased had brought with her and his own underwear which had the blood stains of the deceased which he had thrown

away in the jungle.

According to PW-15, the Appellant first took them to his own house at 57, Bapu Camp, Mandi and got recovered a yellow colour shirt of check

design which he purportedly was wearing at the time of the incident. The shirt was purportedly having human hairs on it. The shirt was then kept in

the pulanda and sealed with the seal of “VJâ€​ and seized under memo Ex.PW-8/F.

The Appellant then took the police to the jungle area of Mandi Pahadi from where he purportedly got recovered “one pair of hawai chappal

make Relaxo†which were of the deceased. The Appellant also supposedly pointed out another place at Mandi Pahadi and got recovered from near

a bush one small ear-ring of orange colour having some hair on it belonging to the deceased. After his medical examination was undertaken, the

Appellant apparently again took the police to the area of Mandi Pahadi and from near the bushes got recovered the underwear which he was wearing

at the time of the incident.

S. 164 Cr PC statement of PW-6

On 12th August 2010, the statement of PW-6, the mother of the victim, was recorded before the learned Metropolitan Magistrate (“MMâ€)

under Section 164 Cr PC. In the said statement (Ex.PW-14/F), PW-6 stated as under:

“On 16th of May of this very year, I had taken some medicines and gone to sleep. At around 3 or 4 p.m. my daughter Shabnam woke me up and

informed me that Rafu had asked her to take some water and come to the pit because there was some iron belonging to him which was lying there

and that he was calling the kabadiwala to that very spot to dispose of that iron and he would pay her Rs.20/-. I do not know what happened

thereafter.â€​

Thereafter, the charge-sheet was filed on 16th August 2010 against the Appellant for the offences under Sections 302/376/363 and 201 IPC. As

already noticed earlier, when charges were framed against the Appellant by the order dated 8th August 2011, there was no charge framed under

Section 376 IPC. He was, however, charged with the offences under Sections 363/302 and 201 IPC.

Forensic evidence

While the trial was in progress, the results of the Forensic Science Laboratory (“FSLâ€) were made available. The DNA Fingerprinting Unit

sent its report dated 15th March 2011 stating, inter alia, that DNA could not be isolated from Ex.3 which was one ear-ring having some filamentous

material type of hair. Further, a DNA profile could not be generated even from the shirt seized from the Appellant which appears to have long

filamentous material like hair attached to its buttons.

As far as the Biology Division of the FSL was concerned, in its report dated 11th July 2011, it found no reaction as far as semen stains on the

Appellantâ€s own underwear was concerned. In the report of the same date, the semen stains could not be detected on control swab of the deceased

(Ex.P-1), the vaginal swab of the deceased (Ex.P-2), the anal swab of the deceased (Ex.P-3) or the Penile Swab of the Appellant (Ex.R-2). This

perhaps was the reason why no charge for the offence under Section 376 IPC was framed against the Appellant by the order dated 8th August 2011.

Eighteen witnesses were examined by the prosecution. In his statement under Section 313 Cr PC, the Appellant denied the circumstances put to

him by the prosecution and stated that he has been falsely implicated in this case.

Impugned judgment of the trial Court

In the impugned judgment, dated 29th November 2013, the learned trial Court came to the following conclusions:

(i) The argument that PW-6 herself did not see the accused and the deceased going together and what was told to her by the deceased was nothing

but hearsay, was without substance. PW-6 was present in the house when the deceased left the house and there was no time gap in the “narration

of the act of her going by her daughter to herâ€. Since the fact was conveyed by the daughter herself and not by anyone else, the deposition of PW-6

was considered to be in the “nature of res gestae which is very much admissible in law by virtue of Section 6 of the Evidence Actâ€​.

(ii) There was no delay in the registration of the FIR.

(iii) Non-joining of an independent public witness in the recovery of the dead body did not caste any doubt on the prosecution story.

(iv) The evidence of PWs 4 and 5 as regards identification of the dead body was believable.

(v) The argument that there was a considerable time gap in the recovery of the dead body and the girl having gone missing and the possibilities of any

other person, other than accused, being the author of the crime was without substance. The mere delay in holding the TIP on 12th July 2010, forty

days after the recovery of the chappal on 22nd May 2010, was not fatal to the prosecution case since the prosecution case otherwise stood on firm

ground.

(vi) The recovery of the articles upon the disclosure statement given by the Appellant were believable and admissible under Section 27 of the Indian

Evidence Act (“IEAâ€​).

(vii) The offence under Section 363 IPC was not made out as there was no evidence to show that the deceased was taken away from the

guardianship of her mother without the consent of the mother. However, the guilt of the Appellant for the offences under Sections 201and 302 IPC

was proved beyond reasonable doubt.

This Court has heard the submissions of Mr. A.J. Bhambani, learned Senior counsel and Ms. Inderjeet Sidhu, learned counsel for the Appellant.

Ms. Kusum Dhalla, learned APP, has presented arguments on behalf of the State.

Law relating to circumstantial evidence

This is a case based on circumstantial evidence. The law in relation to circumstantial evidence is fairly well-settled. In Jawahar Lal Dass v. State

of Orissa (1991) 3 SCC 27, the Supreme Court set out three conditions that required to be satisfied in a case of circumstantial evidence as under:

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

(ii) those circumstances should be of a definite tendency unerringly pointing towards the 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 it should also be incapable of explanation on any other hypothesis than that of

the guilt of the accused.â€​

In Hanumant v. State of MP AIR 1952 SC 343, the Supreme Court cautioned as under:

“In dealing with circumstantial evidence, there is always the danger that conjecture or suspicion may take the place of legal proof. It is therefore

right to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn

should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.

Again, the circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis but the one proposed

to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with

the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.â€​

In the same judgment, the Court referred to the warning issued by Baron Alderson to the jury in Reg v. Hodge (1838) 2 Lew. 227, where he said:

“The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form

parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and

mislead itself, to apply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them

complete.â€​

The Court further observed in para 9 of the decision in Jawahar Lal Dass v. State of Orissa (supra) as under:-

“It may not be necessary to refer to other decisions of this Court except to bear in mind a caution that in cases depending largely upon

circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion howsoever

strong cannot be allowed to take the place of proof. The court has to be watchful and ensure that conjectures and suspicions do not take the place of

legal proof. The court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed

chain must be such as to rule out a reasonable likelihood of the innocence of the accused. Bearing these principles in mind we shall now consider the

reasoning of the courts below in coming to the conclusion that the accused alone has committed the offence.â€​

Evidence of ‘last seen’ not proved

The first circumstance that has been relied upon by the prosecution in the present case is that the deceased proceeded with the accused upon his

asking and she conveyed this to her mother at around 4 pm on 16th May 2010.

In order to prove the circumstance, reliance is placed on the evidence of PW-6 herself. It is already noted that at the very first instance when the

complaint was lodged with the police by the father of the deceased, i.e. PW-5, at 12:10 am on 17th May 2010, he specifically stated that he did not

suspect anyone being involved behind his daughter going missing. What is also significant is that in that statement he states that his daughter left home

without informing anyone.

While deposing in the Court PW-6 stated:

“my neighbour namely Rafu whose real name I do not remember, had taken my daughter to the mines area on the pretext that his iron articles

were lying and he would bring a rickshaw and stated that he would give her Rs.20/- and he required water.â€​

She then stated that her daughter had taken water in a bottle “and she informed me that she was going with Rafu, who was present in the

Court todayâ€. From this it would appear as if the Appellant had, in the presence of PW-6, taken the deceased along with him to help bring the iron

lying in the mine area.

However, as already noted, in the statement of PW-6 first recorded when ASI Lal Singh, i.e. PW-1, went to their house after receiving the

complaint, PW-6 is supposed to have stated that the accused came to the house and informed her that he was taking the child away to help him with

some iron belonging to him which is lying in the jungle and that he would pay her Rs.20/- for that. However, this is not what PW-6 stated before the

MM when her statement was recorded under Section 164 Cr PC. That statement (Ex.PW-2/B) has already been extracted hereinbefore. In that

statement all she says is that her daughter came to wake her up when she was sleeping at around 4 pm and told her that she had been asked by the

Appellant to come to the ridge area where his iron was lying and that after disposing it all to a kabadiwala whom he had called there, he would pay her

Rs. 20. There was a considerable difference between the statement made to the police in the first instance by PW-6 and what she told the MM under

Section 164 Cr PC. In other words, she did not herself see the Appellant going away with the deceased. This, therefore, certainly cannot be

considered to be “last seenâ€​ evidence.

The trial Court appears to have been conscious that the above evidence of PW-6 was in the nature of “hearsay†but has strained itself in

reading the evidence so as to somehow bring it under Section 6 IEA and held that it was in the nature of “res gestaeâ€, i.e. forming part of the

same transaction. This Court is unable to agree with the trial Court. There is no clarity whether PW-6 was in fact aware that the child had gone away

with the Appellant. In her statement under Section 164 Cr PC, recorded nearly three months after the incident, she makes it appear that the child

came and told her about having been called by the Appellant to a certain spot. These two disjunctive statements cannot be said to be the part of

“the same transactionâ€. It is not possible to infer from the subsequent statement under Section 164 Cr PC that the child was seen actually going

away with the Appellant from her house. Needless to say, there is a considerable difference between going along with the Appellant and being asked

by the Appellant to reach a particular spot where he would also reach. The long and short of the above discussion is that PW-6 cannot be stated to be

a witness to the circumstance to the “last seenâ€​.

In any event, the last seen evidence by itself cannot be a strong circumstance to draw the conclusion about the guilt of an accused. In Nizam v.

State of Rajasthan AIR 2015 SC 3430:

“Undoubtedly, ""last seen theory"" is an important link in the chain of circumstances that would point towards the guilt of the accused with some

certainty. The ""last seen theory"" holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to

the cause of death of the deceased. It is well-settled by this Court that it is not prudent to base the conviction solely on ""last seen theory"".

Last seen theory"" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that

precede and follow the point of being so last seen.â€​

The mere circumstance of last seen cannot be used to arrive at a conclusion as to the guilt of an accused person, particularly when there is a time

gap between when the person was last seen and when the dead body of such person was discovered. Secondly, when the place where the deceased

was last seen with the accused is different from the place where the body of the deceased was found, that again weakens the circumstance of

“last seenâ€​.

In the present case, as has already been noticed, there is no clear and cogent evidence that the deceased was last seen with the accused outside her

own house. Secondly, a dead body was found more than three days after she went missing and at a considerable distance from her house. Therefore,

in the present case, the above circumstance of last seen cannot be said to have been conclusively proved by the prosecution.

Appellant’s subsequent conduct

As far as the circumstance of the Appellant absconding after the incident, it is seen that he is a resident of the same area and the only evidence

that has come forth is that as a result of some information passed on by a secret informer, the police apprehended him at the Mandi bus stop, which is

again in the same area itself. The Court is therefore, not convinced that the Appellant tried to run away after the incident as is sought to be projected

by the prosecution.

It was submitted by the learned APP that it was incumbent upon the Appellant to have explained under Section 313 Cr PC as to where he was in

the interregnum. It is only if the Appellant is going to plead alibi that there would be a burden on him to explain his whereabouts in the interregnum.

However, in the present case, the Appellant is not pleading alibi at all. It is seen that he was in fact arrested from the very same area where he

ordinarily resides.

Recovery unhelpful to the prosecution

The next important circumstance that is relied upon by the prosecution is the disclosure statement made by the Appellant leading to the recovery

of four articles: (i) the ear ring of the deceased; (ii) the chappal of the deceased; (iii) the underwear of the accused; and (iv) the shirt of the accused.

As regards the recovery of the shirt, as already noticed, it was recovered from the Appellantâ€s house and was not therefore secreted away. The

attempt at showing that the human hair found on his shirt belonged to the deceased failed as the FSL report was unable to substantiate this.

Even the recovery of the semen-stained underwear of the Appellant from somewhere in the ridge area does not really connect the Appellant to

the crime. It was unable to be shown by the forensic evidence that there was anything on that underwear which connected him with the deceased.

As regards the recovery of the ear ring and a chappal, there was no separate site plan drawn up to show the exact area from where these two

articles were recovered. Even if this Court were to accept that in the TIP conducted for these articles more than forty days after the recovery, they

were identified correctly by PW-5, the fact remains that unless these two articles were recovered from a place not already visited by the police prior

to 22nd May 2010 (when they were actually recovered), this recovery would lose all meaning. It is for this purpose that it was essential for the police

to have drawn up a site plan for the recovery of these two articles.

The medical evidence in this case shows that the body was severely decomposed and that the arms and legs of the deceased were missing. It

should also be remembered that this was a jungle area inhabited by animals and the possibility of the parts of the body being eaten away by the

animals could not be ruled out. In that eventuality, finding a chappal of the deceased from the same area from where the dead body lay cannot be

considered to be an incriminating circumstance vis-a-vis the Appellant. Even as regards the discovery of the ear ring, it was again in an open area and

under the bushes and in the same area where the dead body lay. No DNA profile could be generated using the human hair attached to the ear-ring

that could connect the Appellant to this crime. Therefore, this recovery also cannot be said to be incriminating vis-a-vis the Appellant.

Possibility of non-homicidal death not ruled out

The next circumstance put forth by the prosecution is that the death was said to be homicidal and by throttling of the deceased.

The Court has carefully perused the photographs taken of the dead body when it was discovered and also carefully perused the post mortem

report. It does appear that the head itself was only in a skeletonised form. It appears that there were bruises noticed by the Doctors conducting the

post mortem. The possibility of the death being caused as a result of attack by wild animals is not totally ruled out by the medical evidence. In other

words, the medical evidence does not lend assurance to the Court that the death was only homicidal by human intervention and not in any other

manner. So, even the manner of the death of the deceased as described by the prosecution cannot be said to have been proved.

Conclusion

In Kishore Chand v. State of Himachal Pradesh (1991) 1 SCC 286, the Supreme Court explained as under:-

“4. … In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently

established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be

of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis

but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences

to the accused beyond all reasonable doubt. It is not necessary that each circumstance be itself be conclusive but cumulative must form unbroken

chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable

hypothesis then the accused must have the benefit of that hypothesis.

In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words

when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must

be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for

conclusion consistent with the innocence of the accused. If any of the circumstances proved in a case are consistent with the innocence of the

accused or the chain of the continuity of the circumstances is broken, the accused is entitled to the benefit of the doubt.â€​

The Court in the above decision also emphasised that there is a long distance between “may be true†and “must be trueâ€. In that regards,

it opined as follows:

“There is a long distance between may be true and must be true. The prosecution has to travel all the way to establish fully all the chain of events

which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclusive nature and tendency and

they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. In other words, there must be a chain of

evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it

must be such as to show that in all probability the act must have been done by the accused and the accused alone.â€​

In the present case, the prosecution has not successfully bridged that gap between “may be true†and “must be trueâ€. The Court is,

therefore, not able to concur with the trial Court that the prosecution has been able to prove every link of the chain of the circumstances in a manner

that the guilt of the Appellant, and the Appellant alone, stands established beyond reasonable doubt. The benefit of doubt ought to be granted to the

Appellant.

Accordingly, the Court acquits the Appellant of the offences under Sections 302 and 201 IPC and sets aside the impugned judgement dated 29th

November 2013 and the order on sentence dated 30th November 2013 passed by the trial Court.

The appeal is allowed. The Appellant shall be released forthwith unless wanted in some other case. The Appellant will comply with the

requirements of Section 437A Cr PC to the satisfaction of the trial Court. The trial Court record be returned forthwith along with a certified copy of

this judgment.