Shajid and Others vs State of Rajasthan and Others

Nisha Gupta, J.—Since both these appeals arise out of the same and one judgment, they are being decided by this Court by way of this common judgment.

D.B. Criminal Appeal No. 1249/2007 (Shajid @Babuda Vs. State of Rajasthan) has been filed against the judgment dated 30/04/2007 passed by Additional Sessions Judge (Fast Track), Sikar in Sessions Case No. 42/2005 (State Vs. Shajid @Babuda) whereby, the accused-appellant has been convicted and sentenced for offence u/Ss. 302 and 376 IPC and D.B. Criminal Appeal No. 210/2015 (State of Rajasthan Vs. Shajid @Babuda) has been filed by the State against the judgment dated 30/04/2007 passed by Additional Sessions Judge (Fast Track), Sikar in Sessions Case No. 42/2005 (State Vs. Shajid @Babuda) seeking enhancement of sentence of accused-Shajid @Babuda from life imprisonment to death sentence for offence u/S. 302 IPC. The accused-appellant/Shajid @Babuda has been convicted and sentenced, as under:-

for offence u/S. 302 IPC:- Life Imprisonment and pay a fine of Rs. 10,000/- and in default thereof, to further undergo six months simple imprisonment.

for offence u/S. 376 IPC:- Rigorous Imprisonment for ten years and pay a fine of Rs. 5,000/- and in default thereof, to further undergo three months simple imprisonment.

The facts giving rise to these appeals in brief are that Moinuddin (PW2) submitted a written report (Ex.P7) to Station House Officer, Police Station Kotwali, Sikar with the contention that in the morning at about 7.30 when he was at his home, Nasir Ahmed Farukhi came to his house and informed him that today as usual he went to ''kabristan'' (graveyard) and there he found dead-body of a girl-child. This fact was relayed to Police Station Kotwali, Sikar and it has also been heard that the daughter of Balji Meer is missing since evening. Balji Meer was called and he identified dead-body as his daughter Hina @Langdi. Dead-body was having injury on her head and blood was oozing from her private parts and nose. She was undressed and her salwar was taken-off and there was a loop around her neck. On this information, formal FIR No. 245/2005 (Ex.P10) was registered at Police Station Kotwali, Sikar for offence u/S. 302 IPC and after usual investigation, the police filed charge-sheet against the accused-appellant for offence u/Ss. 302 and 376 IPC in the court of sessions, which was entrusted for trial to Additional Sessions Judge (Fast Track), Sikar.

After committal of the case, the trial court framed the charges against accused-appellant for offence u/Ss. 302 and 376 IPC. The charges were read over to the accused-appellant but he denied the charges and claimed to be tried.

To support the case, the prosecution produced 19 witnesses from PW1 to PW19 viz. Gulabchand Saini (PW1), Moinuddin Khan (PW2), Dr. S.S. Sharma (PW3), Laxman Singh (PW4), Banwarilal (PW5), Balbir Singh (PW6), Nisar Ahmed Farukhi (PW7), Tejaram (PW8), Sadiq Ali (PW9), Sajjan Kumar (PW10), Haseena (PW11), Abdul Gaffar (PW12), Shafim Mohammed (PW13), Kumari Baby (PW14), Dr. Mahesh Chandra Sharma (PW15), Heeralal (PW16), Pooran Singh (PW17), Abrar @Bablu (PW18) and Devendra Sharma (PW19) and exhibited 98 documents from Ex.P1 to Ex.P98, whereas from the side of the defence i.e. the accused-appellant, four witnesses were examined i.e. Allanoor as DW1, Sheikh Ahmad as DW1, Nooran as DW3 and Sajid Ali as DW4, whereas in documentary evidence, the defence exhibited eight documents from Ex.D1 to Ex.D8 viz. statements of witnesses viz. Moinuddin, Nisar Ahmad, Haseena, Baby and Abrar etc. recorded u/S. 161 Cr.P.C. and informations u/S. 27 of the Evidence Act.

After conclusion of the trial, the present appellant has been convicted and sentenced in the manner as stated hereinabove. Hence, accused-appellant-Shajid @Babuda has filed D.B. Criminal Appeal No. 1249/2007 seeking acquittal, whereas the State has filed D.B. Criminal Appeal No. 210/2015 seeking enhancement of sentence of the accused-respondent-Shajid @Babuda from life imprisonment to death sentence for offence u/S. 302 IPC.

Contention of the learned counsel for the accused-appellant is that the case rests on circumstantial evidence and chain of circumstance is not complete so as to connect the appellant with the crime. The first circumstance, which has been used against the appellant is evidence of Baby (PW14) as she had ''last seen'' the deceased with the appellant but taking the statement of Baby (PW14) at its face value, it cannot be termed as evidence of last seen. Haseena (PW11) sister-in-law of the deceased has tried to implicate the appellant with the aid of extra juridical confession, which was demolished in the cross-examination of the witness. The evidence of foot-moulds and matching of the same with the shoes of the appellant has been projected as another incriminating circumstance but same is a very weak type of evidence and cannot be relied on to base conviction. Hence, there is no evidence to connect the appellant with the crime.

Per contra, the contention of the learned Public Prosecutor is that Baby (PW14) has stated that on the day of incident, Babuda came to the house and took Hina @Langdi with him and, thereafter, they both did not return. Thereafter, extra judicial confession has been made by the appellant in the presence of Haseena (PW11). Foot-moulds have been taken from the scene of occurrence, which match with the shoes of the appellant and the F.S.L. report connect the appellant with the crime. The blood stains have been found on the clothes, which were recovered at the instance of the appellant. Appellant also sustained injuries, which also connect him with the crime and the court below has rightly convicted him for the alleged offence and hence, there is no need for any interference.

Heard learned counsel for the accused-appellant, learned Public Prosecutor for the State and perused the impugned-judgment as well as original record of the case.

There is no doubt about the fact that the case rests on circumstantial evidence. The first evidence, which has been used against the appellant, is that the deceased was last seen with the appellant and Baby (PW14) is the only witness for the same. Baby (PW14) has stated that on the day of occurrence, three sisters of the appellant were going to be married and on that day, she was at the house of the appellant and there, she and deceased were playing. At that time, appellant came there and he asked the deceased to accompany him as he intended to buy biscuits for her. Deceased went with the appellant and on that day, they did not return and, thereafter, she went to her house. Baby (PW14) has been confronted with her previous statement Ex.D4 in which, it has been stated that at 7-7.30 p.m. when deceased was standing with her, one another person came there and asked for Babuda then, Langdi called Babuda and the appellant, deceased and unknown person went outside. Thereafter, appellant returned back but deceased and unknown person did not return. But all these facts have been denied by witness-Baby (PW14) in the court hence, the evidence of Baby (PW14) seems to be not trustworthy. She has denied the fact that when appellant took the deceased, one other person was there. Apart from it, she has made contradictory statement about the time of disappearance of the deceased. In cross-examination, she has stated that altercation took place between the appellant and his brother but at that time, she was not present; and at another place, she has stated that after altercation between the two, the deceased was found missing, whereas her other contention is that from the evening, deceased was missing and she denied the fact that she narrated to the police that from 7-7.30 p.m., the deceased went with unknown person. Her further statement is that Hina did not leave the house at 5-6 p.m. but she was found missing in the midnight. Thus, the statements of Baby (PW14) are not trustworthy as she had contradicted her previous statement recorded by the police u/S. 161 Cr.P.C. Heeralal (PW16), the investigating officer had also admitted the fact that Baby stated to him that in the evening at 7-7.30, deceased went with the appellant and one other person. Appellant returned back but other person did not return, which clearly rules out the evidence of last seen in regard to the appellant. Haseena (PW11), sister-in-law of the deceased, Abrar @Bablu (PW18) and other witnesses of the incident have stated that on the day of incident, deceased was at the house of Shajid but Haseena did not say anything as regards to the evidence of last seen. Abrar @Bablu (PW18) had stated that on the day of incident, altercation took place between Babuda and his brother at about 12.00 in the night but he did not state anything as regard to the fact that deceased was last seen with Babuda. Inspite of fact that all these witnesses were also at the house, where the marriage function was going on and presence of the appellant and deceased has been shown hence, it is not safe to base conviction on the testimony of Baby (PW14). Reliance has been placed on the judgment of Supreme Court in State of Goa Vs. Sanjay Thakran and Another, , wherein the Supreme Court in paras 31, 32, 33 and 34 of the said judgment has held, as under:-

"31.....It is a settled rule of criminal jurisprudence that suspicion, however grave, cannot be substituted for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence. This Court has applied the above-mentioned general principle with reference to the principle of last seen together in Bodhraj v. State of J and as under: (SCC p.63, para 31)

"31. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases..." [See also: State of U.P. v. Satish (SCC para 22) and Ramreddy Rajesh Khanna Reddy v. State of A.P. (SCC para 27)].

In Ramreddy Rajesh Khanna Reddy, this Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.

In Jaswant Gir v. State of Punjab, it was observed that (SCC p.441, para 5)

"5......In the absence of any other links in the chain of circumstantial evidence, it is not possible to convict the appellant solely on the basis of the ''last seen'' evidence, even if the version of PW 14 in this regard is believed..." 34. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case".

The other fact, which has been brought against the appellant, is that he had also suffered injuries. Dr. S.S. Sharma (PW3) has stated that he medically examined the appellant and found injuries on his person. As per injury report (Ex.P9), he suffered three injuries but suffering of injuries could not connect the appellant with the crime as the deceased was a little child and it was not possible for her to inflict injuries to the appellant and no such evidence has been brought on record. Apart from it, prosecution evidence speaks that on the day of occurrence, there was altercation and assault between the appellant and his brother. Hence, injuries suffered by the appellant could not connect him with the crime and possibility could not be ruled out that it may have been caused in the altercation between the appellant and his brother.

Haseena (PW11), sister-in-law of the deceased stated that appellant came to the house, where wedding ceremony was going on. He was having the sheets with blood stains and at that time, appellant confessed to his wife that he has committed a very wrong act. He asked her wife to bring 2-3 buckets of water and, thereafter, he took bath but in the cross-examination, she clearly stated that this fact had not been narrated in her previous statement (Ex.D3) hence, it is a case of improvement and it can be concluded without hesitation that no extra judicial confession was made by the appellant.

The last fact, which has been brought against the appellant, is the evidence of matching of footprints lifted from the scene of occurrence with the shoes of the appellant, which were recovered at his instance.

Balbir Singh (PW6) is a photographer, who lifted the footprints from the scene of occurrence and his contention is that two footprints of the shoes and two prints of bare-foots were taken from the scene of occurrence and seizure-memo Ex.P37 and Ex.P38 were prepared. His further contention is that footprints of the shoes were taken from 50-60 meters away from the dead-body and prosecution came with the case that as per F.S.L. Report (Ex.P.95), footprints, which were lifted from the scene of occurrence vide Ex.P.37, tallies with the shoe-sole of the appellant and it connect the appellant with the crime. Admittedly, footprints were lifted from an open place and even Balbir Singh could not state that the shoes were either of male or female.

Abdul Gaffar (PW12) and Shafim Mohammed (PW13) are the witnesses in whose presence, foot-moulds of shoes were taken. Abdul Gaffar (PW12) also could not say that footprints were either of male or female.

Heeralal (PW16), the investigating officer stated that in his presence, foot-moulds were taken from the scene of occurrence in the presence of Abdul Gaffar (PW12) and Shafim Mohammed (PW13) but he had admitted the fact that no footprints from dead-body of Hina were taken but in cross-examination, he had stated that from the scene of occurrence, footprints of child were taken, which is of no significance as no F.S.L. Report has been brought on record, which could connect the footprints of deceased with the footprints taken from the scene of occurrence. He further accepted the fact that footprints taken from the spot were not sealed.

Devendra Kumar Sharma (PW19), other investigating officer, has testified that on the disclosure furnished by the appellant, the shoes, which the appellant was wearing at the time of occurrence, were recovered vide Ex.P.88 and admittedly the shoes, which were recovered vide Ex.P.88 are in pieces, which were fixed with feviquick and, thereafter, sealed and sent to the F.S.L. and surprisingly, the F.S.L. opined in its report that footprints lifted from the scene of occurrence tallied with the shoe-sole seized vide Ex.P88. The shoe-sole was recovered in pieces and, thereafter, it was re-assembled. Hence, the nature of evidence in itself is not sufficient to conclude that this circumstance has connected the appellant with the crime.

Counsel for the accused-appellant has relied on the judgment of Supreme Court in Mohd. Aman, Babu Khan and another Vs. State of Rajasthan, contending that since the science of identification of footprints is not too well developed, it is a weak sort of evidence for convicting the accused. Moreover, the identity of the culprit has to be established firstly, by other evidence before the footprints can be used for their identification. But here in the present case, admittedly, there is no evidence to connect the identity of the culprit and only on the evidence of footprints that is also too shaky as observed earlier, the chain of circumstance is not complete, which could lead to the inescapable conclusion that only the appellant has committed the crime.

This Court in D.B. Criminal Appeal No. 1011/2012 : Sunder and Ors. Vs. State of Rajasthan decided on 27/01/2015 had an occasion to explain the procedure regarding lifting of the footprints, and while elaborating the provisions of Rule 6.26 of the Rajasthan Police Rules, 1965, the court has held, as under:-

"6.26. Importance of footprints and track evidence. - (1) Footprints are of the first importance in the investigation of crime. For this reason all officers in-charge of police stations shall instruct their subordinates as well as all chaukidars that, when any crime occurs all footprints and other marks existing on the scene of the crime should be carefully preserved and a watch set to see that as few persons as possible are permitted to visit the scene of the crime.

(2) When it is desired to produce evidence of the identity of tracks found at the scene of or in connection with a crime, the procedure for securing the record of such evidence shall be similar to that prescribed in rule 7.31 for the identification of suspects. The attendance of a magistrate of the highest available status, shall be secured or, if that is impossible, independent witnesses of reliable character shall be summoned. In the presence of the magistrate or other witnesses, and in conformity with the reasonable directions which they may give, ground shall be prepared for the tests. On this ground the suspect or suspects, and not less than five other persons shall be required to walk. The magistrate, or in his absence the police officer conducting the test, shall record the names of all these persons and the order in which they enter the test ground. While these preparations are preceding the tracker or other witness, who is to be asked to identify the tracks shall prevent from approaching the place or seeing any of the persons concerned in the tests. When all preparations are complete the witness shall be called up and required to examine both the original tracks and those on the test ground, and thereafter to make his statement. The magistrate, or in his absence, the police officer conducting the test shall record the statement of the witness as to the grounds of his claim to identify the tracks, and shall put such other questions as he may deem proper to test his bona fides. The officer investigating the case and his assistants shall be allowed no share in the conduct the test.

Track found, which it is desired to test by comparison as above, shall be protected immediately on discovery, and their nature, measurements and peculiarities shall be recorded at the time in the case diary of the investigating officer.

The details of the preparation of the test ground and the actions required of the suspect and those with whom his tracks are mixed must vary according to the circumstances of the case. The officer conducting the test in consultation with the magistrate or independent witnesses, shall so arrange that the identifying witness may be given in a fair chance, but under the strictest safeguards, of comparing with the original tracks, other tracks made on similar ground and in similar conditions.

(3) The evidence of a tracker or other expert described in the foregoing rule can be substantiated by the preparation of moulds of other footprints of the criminal or criminals found at the scene of the crime.

(4) The footprints found on scene of the crime must be pointed out to the reliable witnesses at the time and these same witnesses must be present during the preparation of the moulds.

(b) The latter must also be signed or marked by the witnesses and the officer preparing them while still setting.

(c) After the procedure described in Sub-rule (2) above has been completed a mould should be prepared in the presence of the Magistrate or witnesses of one of the foot prints of the suspect made in their presence. This mould should be signed by the Magistrate or witnesses when still setting.

(d) Both moulds should be carefully preserved for production in court for identification by witnesses and comparison by the Court."

Thus, Rule 6.26(3) requires that prior to taking the impression of the footprints and before making a mould, the footprints found on scene of the crime must be pointed out to the reliable witnesses. However, in the present case, neither Prahlad Singh (P.W.22), nor Jagdish (P.W.13) states that the footprints of the alleged accused persons were pointed out to them. According to Rule 6.26(3)(c), the moulds of the footprints should be made either in front of Magistrate, or in front of witnesses. The said moulds have to be signed either by the Magistrate, or the witnesses. According to Rule 6.26(3)(d), during the course of trial the mould should be produced in the court for identification by the witnesses and comparison by the court."

However, in the present case, the foot-moulds have not been lifted in front of Magistrate. They have not been produced in the court for identification and apart from it, the same have been lifted from an open and accessible place and it is a very weak type of evidence and it is not safe to be relied upon.

Admittedly, the incident took place on 05/05/2005 and on the same day, incident was reported. The shoes of the appellant, which he was wearing at the time of incident, have been shown to be recovered at his instance on information furnished on 11/05/2005. The delay in recovery creates doubt and admittedly when the shoes were recovered in pieces, the evidence of matching of footprints lost its significance.

It had also been stated by Balbir Singh (PW6) that footprints of bare-foots were also been lifted from the scene of occurrence vide Ex.P.38 but admittedly no footprints of appellant were taken, whereas provisions of Sections 4 and 5 of the Identification of Prisoners Act, 1920, entitles the investigation officer to have the footprints of the accused. Hence, in view of the above, Rajasthan Police Rules prescribe the elaborate procedure for lifting the footprints. In the present case, the police officer has not secured the attendance of a Magistrate nor followed the procedure prescribed by the rules.

For the sake of argument, it can be presumed that footprints were taken as per the prescribed procedure still, the science of identification of footprints is not yet developed and hence, it is a very weak type of evidence and only on this weak evidence, conviction cannot be based and reliance has been placed on the judgment in Leela Ram and Ashok Vs. State of Rajasthan, , wherein this Court had expressed its opinion that foot impression mould should be taken either before a magistrate, or at his direction, or under his order. In the case of Mohd. Aman, Babu Khan and another Vs. State of Rajasthan, , the Apex Court has disbelieved the evidence of footprint inter-alia on the ground that the sample was not taken before a Magistrate. The Apex Court further observed that the science of identification of footprints is not a fully developed science. In the case of Balbir Singh and Another Vs. State of Punjab, , the Hon''ble Supreme Court opined that where the prosecution has failed to prove as to whose footprints were lifted and examined, the trial court is unjustified in treating the evidence of the footprint as conclusive circumstance for establishing the complicity of the accused in the crime. Likewise, in the present case, the prosecution has failed to prove as to whose footprints were lifted and from where they were lifted from. Thus, the evidence of the footprints cannot be read against the appellant. Therefore, this Court does not find the evidence of footprints as a reliable piece of evidence for convicting the appellant.

Hence, in view of above, the circumstances, which have been brought against the appellant could not lead to a conclusion of guilt and even circumstances have not been fully established in the facts and circumstances of the present case and counsel for the appellant has relied upon the judgment of the Supreme Court in Hanumant Vs. The State of Madhya Pradesh, and another judgment of the Supreme Court recently passed in the case of Vasant Sampat Dupare Vs. State of Maharashtra, , wherein Hon''ble Supreme Court has reiterated the principles governing the appreciation of evidence in a case based on circumstantial evidence, as under:-

"It is well 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." 24. Hence, in conclusion, the prosecution has failed to prove the chain of circumstance against the appellant, which could lead to the conclusion of guilt against the appellant.

A critical and holistic analysis of the evidence clearly reveals that the prosecution has failed to travel the distance between "may be true" and "must be true". Although the prosecution has produced certain evidence, but there are too many pieces of the jigsaw puzzle, which are conspicuously missing. The evidence is neither cogent nor convicting for upholding the conviction of the appellant for the alleged crime. Therefore, the appellant deserves to be given the benefit of doubt by this Court.

One other fact has also been tried to be brought on record by the learned Public Prosecutor that clothes of the appellant have been seized on which human blood was found. Heeralal (PW16), the investigation officer has stated that as per the information of the appellant u/S. 27 of the Evidence Act, his clothes viz. pent, underwear and belt have been recovered vide Ex.P.81 and F.S.L. has been called for and as per F.S.L. Report (Ex.P.98), the human blood has been found on underwear and leather belt but no blood group could be ascertained. Admittedly, blood group of deceased and appellant has been brought on record and it is an admitted case of the prosecution that at the time of incident, there was an altercation and assault between the appellant and his brother hence, presence of possibility of human blood on the clothes of accused cannot be ruled out and this piece of evidence is also inconclusive to connect the appellant with the crime and hence, the appellant deserves acquittal.

In view of above, D.B. Criminal Appeal No. 1249/2007 (Shajid @Babuda Vs. State of Rajasthan) is allowed. The judgment dated 30/04/2007 passed by Additional Sessions Judge (Fast Track), Sikar in Sessions Case No. 42/2005 (State Vs. Shajid @Babuda) is set-aside. The accused-appellant Shajid @Babuda S/o Shahjad @Neta is acquitted of the charge for offence u/Ss. 302 and 376 IPC. He be released forthwith, if not required in any other case.

Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, 1973, accused-appellant Shajid @Babuda S/o Shahjad @Neta is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- (Rupees Twenty Thousand) and a surety bond in the like amount, before the trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellant, on receipt of notice thereof, shall appear before the Supreme Court.

Consequently, D.B. Criminal Appeal No. 210/2015 (State of Rajasthan Vs. Shajid @Babuda) stands dismissed. The record be sent back to the trial court forthwith.