HIGH COURT OF JUDICATURE AT ALLAHABAD
RESERVED
Criminal Appeal No. 136 of 2001
Bhoora..................................................Appellant
(In jail)
Vs.
State of U.P..........................................Respondent
************************************
Hon. Shiv Charan,J.
Hon. Vijay Kumar Verma,J.
(Delivered by Hon. Vijay Kumar Verma,J).
Challenge in this appeal is to the judgment and order dated 20.12.2000 passed by the Additional Sessions Judge Court No. 14, Moradabad, in S.T. No. 517 of 1998 (State vs. Bhoora), whereby the accused-appellant Bhoora has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2000/- with default stipulation under section 302 IPC and one year rigorous imprisonment under section 4/25 Arms Act.
2.Briefly stated, the case of the prosecution as unfolded during trial is that dead bodies of a Muslim woman and a female child aged about 1 ½ year were found lying in the sugar-cane field of first informant Bhoorey s/o Faquer Mohammad, situated within the limits of village Jivai under the jurisdiction of P.S. Didauli, District J.P. Nagar. Written report Ext. Ka 1 was submitted at P.S. Didauli by the first informant on 31.01.1998. It was stated in that report by Bhoorey that when he went to his sugar-cane field on 31.01.1998 at about 2.00 p.m., he found that dead bodies of a Muslim woman and a female child aged about 1-1 ½ year were lying in his sugar-cane field situated on the side of chakroad going to Chaudarpur from his village. The woman was wearing burka and neck of both the deceased was cut. The people of nearby villages saw the dead bodies, but nobody could identify them. On the basis of the written report Ext. Ka 1, the then head moharrir Lovkesh Sharma prepared chik FIR Ext. Ka 6 and registered a case under section 302 /201 IPC against unknown person at Crime No. 47/98, entry of which was made in the GD vide Ext. Ka 7. After registration of the FIR, investigation was taken up in his hands by the then SHO Sri K.C. Pundhir P.W. 6. During the course of investigation, an application Ext. Ka 2 was handed over to the investigating officer by Muzaffar Shah (P.W.2), father of the deceased Sanno. It was alleged in that application that his daughter Sanno was married to Bhoora s/o Itwari Shah r/o Mohallah Dehli Darwaja, Sambhal. Before Eid festival, Sanno along with her one year daughter had come to his house to meet him. At that time she had told that her husband blames her be to characterless and he says that her daughter is born due to illicit relations. It was further stated in the said application that when Bhoora came on 27.01.1998, he assured that he would not suspect about the character of Sanno in future. Thereafter Sanno was sent with him. It is also alleged that on 12.02.1998, Smt. Noor Jahan w/o Akhtar Husain r/o Mohallah Dehli Darwaja, Sambhal came to Rampur to meet the complainant Muzaffar Shah, but he was not there at the house. Noor Jahan returned to her house informing the daughter of the complainant that when her father comes back to house, he be informed to meet Mazeed in kasba Sambhal. When on arrival to his house, Muzaffar Shah went to Sambhal on 15.02.1998 to meet Mazeed, then Mazeed show the photos of Sanno and her daughter, which were published in Amar Ujala news paper of 11th February 1998 of Moradabad edition. Seeing those photos, the complainant identified them. Thereafter, Mazeed and Noor Jahan told the complainant that when after seeing and identifying the photo of Sunno in the news paper, they asked Bhoora on 12.02.1998 about Sanno, he told that "Maine badchalani ke shak par Sanno wa uski bachchi ko Jivai ke taraf jangal men mar diya hai. Ab Khuda ke waste meri galti maph kar do. Main yahan se bahut door ja raha hun". Mazeed and Noor Jahan also told the complainant that they tried to catch Bhoora, but he fled away. Further case of the prosecution is that during investigation Bhoora was arrested on 05.03.1998 and on the basis of his discloser statement one knife was recovered on his pointing out from Kachchi chak-road filled with mud and water in the jungle of village Jivai. After completion of the investigation, one charge-sheet under section 302/201 IPC and another charge-sheet under section 4/25 Arms Act were submitted against the appellant-accused Bhoora.
3.On the instruction of SHO Sri K.C. Pundhir (P.W.6), S.I. Gokul Chandra Sharma conducted inquest proceedings on the dead body of both the deceased persons, during which inquest reports Ext. Ka 9 and Ext. Ka 10 with connected papers Ext. Ka 11 to Ext Ka 17 and Ext. Ka 18 to Ext. Ka 24 were prepared and both the dead bodies in sealed condition were handed over to the constables Rajesh Tomar and Jagdish Singh, who carried them to mortuary for post-mortem examination, which was conducted on 01.02.1998 by Dr. K.Kumar P.W. 5. Following ante-mortem injuries were found on the person of deceased female child vide post mortem report Ext. Ka 4.
Incised wound on the front of neck 16cm x .5cm at the level of 2nd cervical vertebrae sharply cut. These trachea vessels & oesophagus are on cut. The neck is attached with a (sic) fleep of skin & muscle.
In internal examination there was cut at the 2nd cervical vertebrae. Gases and faecal matter were found present in large intestine.
4.On the dead body of unknown female, the following ante-mortem injuries were found vide post-mortem report Ext. Ka 5:-
1. Incised wound part of the front of neck 22cm long 3.5 cm. cut at the level 3rd . cervical vertebrae all are NAD. Trachea Oesophagus muscles all are cut.
2. Multiple incised wound 3cm x 1.5 cm in area of 15 x 12 cm. on right side chest is (sic). Axillary line chest cavity deep. On exploration Larynx Pleura all cut.
3. Multiple Abrasion on part of both knee front & temp. region.
On Exploration. The uterus is gravid & a dead male fetus weight 450 grm & 11.5" long present.
In internal examination 8th, 9th, and 10th ribs of right side were cut at place. There was cut in right side pleura. There was cut 3rd cervical vertebra. Gases and faecal matter was found present in large intestine.
According to Dr. K. Kumar, death of both the deceased was caused due to shock & haemorrhage as a result of ante-mortem injuries.
5.After sending the dead bodies for post-mortem examination, P.W. 6 K.C. Pundhir prepared site plan Ext. Ka 8 of the place where the dead bodies were found lying. On the basis of the recovery memo Ext. Ka 3 relating to the recovery of knife on the pointing out of accused Bhoora, a case under section 4/25 Arms Act was got registered against him by P.W. 6. Chik FIR Ext. Ka 26 under section 4/25 Arms Act was prepared by the then head moharrir Veer Singh. Site plan Ext. Ka 27 of the place of recovery of knife was also prepared by P.W. 6 and after completion of the investigation of case crime No. 47/98 under section 302/201 IPC, charge sheet Ext. Ka 27 was submitted against the accused.
6.Investigation of the case under section 4/25 Arms Act was handed over to P.W. 7 SI Raj Singh, who prepared site plan Ext. Ka 30 of the place of recovery of knife and after completing the investigation, submitted charge-sheet Ext. Ka 31 under section 4/25 Arms Act against the appellant.
7.On the cases being committed to the court of session for trial, charge under section 302 IPC and separate charge under section 4/25 Arms Act were framed against the accused-appellant, to which he pleaded not guilty and claimed to be tried.
8.The prosecution in order to bring home the charges to the accused, examined seven witnesses in all. P.W. 1 Bhoora is the first informant, who had lodged the FIR at P.S. Didauli on 31.01.1998 at 4.00 p.m. regarding lying the dead bodies of a Muslim woman and a female child in his field. He has proved written report Ext. Ka 1, which was got scribed by him from Idrish. P.W. 2 Muzaffar Shah is the father of deceased Sanno. He has given evidence regarding the motive. He has proved the application Ext. Ka 2 in his statement. P.W. 3 Abdul Majeed has been examined to prove that accused Bhoora had confessed his guilt before him. P.W. 4 S.I. Satya Pal Singh is said to have accompanied the investigating officer K.C. Pundhir (P.W.6) at the time of arrest of the accused on 05.03.1998 and recovery of knife on his pointing out. P.W. 5 Dr. K. Kumar had conducted post-mortem examination of both the dead bodies. He has proved post-mortem reports Ext. Ka 4 & Ext. Ka 5. P.W. 6 K.C. Pundhir is the investigating officer of the case of Crime No. 47/98, under section 302 IPC. He has proved various papers which we have mentioned herein-above. One knife is said to have been recovered by this witness on the pointing out of the appellant-accused Bhoora after his arrest on 05.03.1998. P.W. 7 S.I. Raj Singh is the investigating officer of the case of Crime No. 63/98, under section 4/25 Arms Act. He has proved site plan Ext. Ka 30 and charge-sheet under section 4/25 Arms Act Ext. Ka 31.
9.In his statement recorded under section 313 Cr.P.C., the appellant has denied all the allegations and he has stated that due to enmity he has falsely been roped in this case and the witnesses have deposed against him due to police pressure. The following further statement has been made by the appellant in answer to question no. 14
"मेरा सौतेला भाई जहूर है । वह मेरी वीवी को गंदी नजर से देखता था। मेरी वीवी ने मुझसे शिकायत किया था। जब मैने उससे पूछा तो उसने कहा झूठ बोलती है। जब एक दिन मै रिक्शा चलाकर वापस आया तो मालूम हुआ कि मेरा भाई जहूर मेरी पत्नी को रामपुर ले गया है। फिर उसके बाद मेरी पत्नी का पता नहीं चला। मैने तलाश किया। उसके बाद मैने थाने पर शिकायत किया था। दरखास्त लिखाया था। उसके बाद मुझे पुलिस वाले पकड़ ले गये। दरोगा ने बताया था जहूर ने मेरी पत्नी व बच्ची की हत्या की है। मुझसे कह रहे थे कि मुल्जिम को पकड़वा दो। मै पकड़वा नहीं पाया। "
10. In defence, the appellant has examined Mohd. Nazim as D.W. 1. He has stated that he had seen Sanno, wife of accused Bhoora, going with Jahoor, step brother of Bhoora with a female child in her lap.
11. The learned trial court having considered the evidence adduced by the prosecution, convicted and sentenced the accused-appellant as stated in para 1 above. Hence this appeal.
12. We have heard amicus curiae Sri Samit Gopal Advocate appearing for the accused-appellant and Sri A.K. Dwevedi learned AGA for the State and perused the entire material on record carefully.
13. Before adverting to the arguments advanced by the learned counsel for the parties, we shall at the threshold point out that in the present case there is no direct evidence about committing the murder of deceased persons and the prosecution rests its case solely on circumstantial evidence. The Hon'ble Apex Court in a series of decisions has consistently held 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 of 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.
14. As far back as in 1952 in Hanumant Govind Nargundkar v. State of M.P. (AIR 1952 Sc 3443), it was observed thus:-
" 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."
15. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra 1984 (4) SCC 116 = AIR 1984 SC 1622. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are (SCC pp. 185, para 153):
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established'
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) 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.
16. We may also make a reference to a decision of Apex Court in C. Chenga Reddy v. State of A.P., 1997 JIC 258 (SC) = 1996 (10) SCC 193, wherein it has been observed thus:
"(21). 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."
17. The following observations made in para 7 & 8 by Hon'ble Apex Court in the case of State of U.P. vs. Hari Mohan and others AIR 2001 SC 142 are worth mentioning:-
7. "While appreciating the ocular testimony of witnesses and the circumstantial evidence in a criminal case, the criminal courts are expected to keep in mind the observations of this Court in State of Punjab vs. Jagir Singh, Baljit Singh and Karam Singh (1974) 3 SCC 277: (AIR 1973 SC 2407: 1973 Cri.LJ 1589), wherein it was held (para 23 of AIR,Cri LJ):
"A criminal trial is not like a fairy tale, wherein one is free to give fight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arrainged at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
8. This Court again in State of Himachal Pradesh vs. Lekh Raj and Sons (1999) 9 JT (SC) 43: (1999 AIR SCW 4008: AIR 1999 SC 3916: 2000 Cri LJ 44) reiterated the position of law and while reminding the criminal courts of their obligations held (Para 10 of AIR, Cri LJ):
"The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt rational approach and Judge the evidence by its intrinsic worth and the animus of the witnesses. The hyper-technicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstances keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a Utopian thought but have to be considered as part and parcel of the human civilization and the realities of life. The Courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and the mankind."
18. In Padala Veera Reddy vs. State of A.P. 1989 Supp (2) SCC 706: AIR 1990 SC 79, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10).
"10.(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 circumstance, 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."
19.In State of U.P. vs. Ashok Kumar Srivastava (1992) 2 SCC 86: 1992 Cri. L.J.1104, it was pointed out that 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. It was also pointed out that the circumstances 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 guilt.
20. Sir Alfred Wills in his admirable book 'Wills' Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability: (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits: (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon an other reasonable hypothesis than that of his guilt: and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
21.Bearing the above principles of law enunciated by the Hon'ble Apex Court, we have scrutinized scrupulously and examined carefully the circumstances appearing in this case against the accused-appellant Bhoora. In order to proved the guilt of the accused the prosecution has relied upon the following three circumstances:-
i. Motive
ii. Extra Judicial confession and
iii. Recovery of knife on the pointing out of the appellant.
22. We first take up the evidence regarding extra judicial confession. It is alleged that after seeing the photograph of the deceased Sanno and her daughter in Amar Ujal news paper of 11th February 1998, when P.W. 3 Abdul Majeed had asked the accused Bhoora about his wife Sanno and daughter, then the accused is said to have confessed his guilt before him. This witness was declared hostile and when he was cross-examined by the ADGC (Criminal) on behalf of State, then he stated that after seeing the photos in news paper, when he went to Bhoora and asked him about what was published in the news paper, then Bhoora told him that he had committed the murder of Sanno and her daughter. On perusal of the impugned judgment, it is revealed that the learned trial court has not placed reliance for convicting the appellant on the evidence of alleged extra judicial confession, as the learned trial Judge has not discussed the evidentiary value of this extra judicial confession in his impugned judgemnt. Although mention of the alleged extra judicial confession of the accused Bhoora before the witness Abdul Majeed has been made at page 7 ( paper no. 57 of the paper book) of the impugned judgment, but evidentiary value of alleged extra judicial confession has not been discussed in other paras of the judgment. On this basis it can be said that learned trial Judge himself was not convinced about the evidentiary value of the alleged extra judicial confession of the accused before the witness Abdul Majeed and it was for this reason that the said extra judicial confession has not been made the basis of conviction of the appellant. We too are not inclined to give any importance to the alleged extra judicial confession of the appellant before the witness Abdul Majeed. It is worthwhile to mention that Abdul Majeed is the mausera brother (khala Jat Bhayee) of the complainant Muzaffar Shah. He has stated at page 4 (paper no. 32 of the paper book) of his statement that his relations with police are neither good nor bad. That being so, Abdul Majeed was not in a position to save the accused Bhoora from the police. The alleged extra judicial confession by the appellant is said to have been made before Abdul Majeed on 12.02.1998. At that time no report was lodged against the appellant and police was not searching him on the charge on committing the murder of his wife and daughter. Therefore, there was no occasion for the appellant to confess his guilt before mausera brother of his father-in-law Muzaffar Shah. When Abdul Majeed was not having any influence over the police and was not in a position to save the accused from the police, then why the accused would confess his guilt before him. When the accused was not wanted on 12.02.1998 in the case of the murder of his wife and daughter, then why he would confess his guilt before a person who might have got him arrested. Therefore, the learned trial court has rightly not placed reliance on the evidence of alleged extra judicial confession of the accused which is said to have been made before Abdul Majeed. Otherwise also, the evidence of extra judicial confession is very weak type of evidence. Therefore, the evidence of alleged extra judicial confession of the appellant before P.W. 3 Abdul Majeed is not of any assistance to the prosecution in proving the guilt of the accused.
23. Now we take up the evidence regarding recovery of knife on the pointing out of the appellant on 05.03.1998 and its evidentiary value in improving the guilt of the accused. Having gone through the material on record, there is no evidentiary value of the alleged recovery of the knife on the pointing out of the appellant to prove his guilt, because the knife which is said to have been recovered on the pointing out of the appellant was not stained with blood and there is nothing on record to show that this very knife was used in committing the murder of Sanno and her daughter. So far as the alleged confession of the accused before the police at the time of his arrest is concerned, the said confession is not admissible in evidence, being made before the police and only that part of the alleged discloser statement is admissible in evidence which relates to the discovery/ recovery of the knife on the pointing out of the accused. As such the evidence regarding alleged recovery of knife on the pointing out of the appellant is also not of any assistance in bringing home the charge to the accused about the commission of the murder of his wife and his daughter.
24. Now the only circumstance against the accused which has been made the basis of his conviction by learned trial court is the evidence of motive. It is alleged in the application Ext. Ka 2 regarding motive that the accused Bhoora used to blame his wife Sanno to be character-less and he used to say that her youngest daughter is illegitimate and due to this suspicion the accused is said to have committed the murder of his wife and youngest daughter. In trial court also P.W. 2 Muzaffar Shah has stated that his son-in-law Bhoora was suspecting the character of Sanno and he used to say that her daughter is illegitimate. When the witness was cross-examined on this point on behalf of accused, he has stated at page 3 (paper no. 25 of the paper book) that his daughter did not make any complaint to him by her mouth, but from her face it was appearing that she was perturbed. Although from this statement made by Muzaffar Shah in his cross-examination, the evidence of alleged motive also is vanished, but assuming for the sake of argument that Bhoora was suspecting the character of his wife and also was blaming her to give birth to a female child by illicit relations with some other person, even then in our opinion the appellant could not be convicted for the murder of his wife and his daughter, because merely on the basis of motive or suspicion, no person can be convicted of any offence. It is well settled principles of criminal jurisprudence that suspicion howsoever strong it may be, cannot take the place of proof and merely on the basis of suspicion no person can be convicted for any offence. Therefore, in present case also, mere suspicion about the character of Sanno is not sufficient to convict the appellant Bhoora for committing these two murders, because there is no other reliable evidence on record to show the complicity of the appellant in the incident of committing the murder of his wife and her daughter.
25. A perusal of the impugned judgment shows that the learned trial court has convicted the appellant mainly on the basis of the evidence of motive and presumption under section 114 Evidence Act. It would be proper to reproduce Section 114 of the Evidence Act, which reads thus:
114. Court may presume existence of certain fact--The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations
(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
(b) That an accomplice is unworthy or credit, unless he is corroborated in material particulars;
( C) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;
(d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence;
(e) That judicial and official acts have been regularly performed;
(f) That the common course of business has been followed in particular cases;
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
(h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;
(i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.
26. The learned trial Judge making reference of Section 114 of Evidence Act in the impugned judgment has held that there was motive for the accused Bhoora to commit the murder of his wife, as he was suspecting that she has illicit relation with some other person and her daughter is born due to those relations and hence in view of section 114 Evidence Act it shall be presumed that only the accused had committed the murder of his wife and daughter. It is also held by the learned trial Judge that after getting information on 29.01.1998 about disappearance of his wife from the house, the accused did not inform the police and hence on this ground also, it shall be presumed that the murder of deceased persons was committed by the accused and for this presumption also, reference has been made to section 114 Evidence Act in the impugned judgment. We have carefully considered this matter and after going through the entire record, we fail to understand as to how the accused can be convicted for committing the murder of deceased persons merely on the basis of motive with the aid of Section 114 Evidence Act. We have cited above all the clauses of Section 114 Evidence Act. In our considered opinion, merely on the basis of motive, it can not be presumed under section 114 Evidence Act that murder of deceased persons was committed by the appellant accused. In criminal trial, the motive alone is not sufficient to convict any person for committing the offence, unless there is presumption of law for convicting the accused on the basis of motive. In the entire Evidence Act or any other statute, there is no such presumption that merely on the basis of motive an accused can be convicted for committing a criminal offence. Therefore, the learned trial judge was wholly unjustified to apply Section 114 Evidence Act for convicting the appellant for the murder of his wife and daughter merely on the basis of motive. As we have stated above, there is no presumption in Section 114 Evidence Act or any other section of this Act or any other statute that a person who has motive to commit a particular crime is guilty for the commission of that crime. Therefore this part of the impugned judgment cannot be sustained and the appellant cannot be held guilty for committing the murder of his wife and daughter with the aid of section 114 Evidence Act on the basis of presumption.
27. The learned trial judge has held in the impugned judgment that after getting information about disappearance of his wife on 29.01.1998, the accused did not inform the police and hence it shall be presumed that murder of deceased persons was committed by him. This finding of the learned trial judge is against the record. We have extracted above the statement of appellant Bhoora recorded under section 313 Cr.P.C. It is specifically stated by the accused in answer to question no. 14 in his statement under section 313 Cr.P.C. that when one day he returned to his house after pulling rickshaw and came to know that his step brother Jahoor has carried his wife to Rampur, then he made search of his wife and thereafter, he went to police station to make complaint and he had given an application there, but he was apprehended by the police. From this statement of the accused, it is very much clear that when he came to know that his step brother Jahoor has carried his wife, then after making search for her the accused had gone to police station to make complaint and he had given an application there. If the police did not lodge the FIR about missing the wife of accused on the basis of the application handed over by him at the police station, then how the appellant can be convicted for committing the murder of his wife and daughter merely on the basis of presumption under Section 114 Evidence Act without any other legal evidence on record. It is well known that U.P. Police hesitates to lodge the FIR in such matters and particularly when the informant is poor person. The accused Bhoora was a rickshaw puller. He had done what he could do to lodge the FIR regarding disappearance of his wife. If the police had not lodged his FIR and could not trace Jahoor against whom complaint was made by the appellant for carrying his wife, then how the appellant can be convicted on this ground for these two murders. From the statement of D.W. 1 Mohd. Nazim, this fact is borne out that the accused Bhoora had gone to lodge the FIR against Jahoor for carrying his wife, but the police had not lodged the FIR and hence this witness had advised Bhoora to make report to the Superintendent of Police, if the police has not lodged the FIR. There is no reason to disbelieve the statement of D.W.1 Mohd. Nazim. On the basis of the statement of this witness, this fact also is established beyond reasonable doubt that at about 12.00 O'clock in the day, Jahoor, step brother of Bhoora, had carried the wife of Bhoora and at that time she was having a female child in her lap. The testimony of D.W.1 cannot be discarded merely on the ground that he has been examined by the accused in his defence. In any criminal case, the testimony of the witnesses examined by the accused cannot be discarded merely on the ground that the accused has examined him/them to save himself. As such on the basis of the statement of the appellant recorded under section 313 Cr. P. C. and reliable testimony of D.W. 1 Mohd. Nazim, it is established that the accused Bhoora had given information to the police about disappearance of his wife when on arrival to his house after rickshaw pulling he came to know that his step brother Jahoor had carried his wife Sanno. From the testimony of Mohd. Nazim (D.W.1), this fact also is borne out that after the incident of carrying Sanno, Jahoor is continuously absconding and his whereabouts are not known. In answer to question no. 14, the accused Bhoora has stated in his statement under section 313 Cr.P.C. that the SI (Daroga) had told him that Jahoor has committed the murder of his wife and daughter and he (Daroga) was saying to him that you get the accused arrested, but he could not get him arrested and Jahoor is absconding. Having regard to the statement of the accused recorded under section 313 Cr.P.C. and testimony of D.W.1 Mohd. Nazim, it cannot be said that after getting information about disappearance of his wife, the accused had not informed the police. Hence, the learned trial judge was wholly unjustified to draw adverse inference against the accused and convict him merely on the basis of presumption under Section 114 Evidence Act.
28. It was vehemently contended by the learned AGA that in view of Section 106 Evidence Act, there will be presumption that the accused alone had committed the murder of his wife and daughter, because the accused has not satisfactorily discharged the burden cast upon him under section 106 Evidence Act. The contention of the learned AGA was that it was in the special knowledge of the accused Bhoora that his wife has disappeared with her daughter from his house and hence the accused was under obligation to furnish explanation about the murder of his wife and daughter and since no satisfactory explanation has been furnished by him either in the statement under section 313 Cr.P.C. or by way of evidence, hence it shall be presumed that murder of Smt. Sanno and daughter was committed by the accused Bhoora. We are not impressed with this contention also. From the application Ext. Ka 2 of the complainant Muzaffar Shah, this fact is borne out that the accused Bhoora had brought his wife Sanno with her daughter on 27.01.1998 from her maiyaka in Rampur. It is not the case of prosecution that murder of Sanno and her daughter was committed on 27.01.1998. The post-mortem reports Ext. Ka 4 and Ext. Ka 5 show that murder of both the deceased was committed about two days ago. The post-mortem examination was conducted on 01.02.1998 at 3.20 and 3.40 p.m. It means that according to the post-mortem reports, the murder of both the deceased might have been committed on 30.01.1998. There is no evidence worth the name to show that both the deceased were seen in the company of accused Bhoora on 30.01.1998. Evidence has been led by the accused to show that his step brother Jahoor had carried Sanno and her daughter and, thereafter, they both were not seen alive and when the accused Bhoora came to know about disappearance of his wife, he made every possible effort to lodge FIR, but in vain. From the impugned judgement itself it is revealed that when FIR of the accused was not registered by the police of police station concerned, then the accused had sent an application to Senior Superintendent of Police Moradabad on 09.02.1998. Therefore, in this case, in our opinion, the accused Bhoora can not be convicted for committing the murder of his wife and daughter with the aid of section 106 Evidence Act also, because the accused has satisfactorily explained that after getting information about disappearance of his wife and daughter and carrying them by his step brother Jahoor, he (accused) had gone to lodge the FIR at the police station concerned and also had given an application there, but the police did not to register the FIR and when he could not be get Jahoor arrested, then he was made accused for committing the murder of his wife and daughter. Therefore, having regard to all these facts and evidence led by the appellant, no adverse inference under section 106 Evidence Act can be drawn against the appellant and with the aid of this section, he can not be convicted for committing the murder of his wife and daughter.
29. It was also contended by learned AGA that there was strong motive for the appellant Bhoora to commit the murder of his wife and daughter, because he was suspecting that her youngest daughter is the result of illicit relation of his wife with some other person. It was submitted by the learned amicus curiae appearing for the appellant that assuming for the sake of argument that there was motive for the appellant to commit the murder of his wife, then also conviction of the appellant cannot be sustained, because merely on the basis of motive or suspicion, a person cannot be convicted. Having given our thoughtful consideration to the rival submissions made by parties counsel, we agree with argument of the learned amicus curiae that merely on the basis of motive and suspicion, no person can be held guilty for committing an offence, unless there is presumption of law in any statute for convicting a person on the basis of motive. When a heinous crime like murder is committed and murderer is not known, then different type of stories are concocted. In criminal trial it is not always possible for the accused to establish as to why he has been falsely implicated in the case. We can do no better in this regard than to refer the following observations made by the Hon'ble Apex Court in the case of Shankarala Gyarsi Lal Dixit vs. State of Maharashtra (AIR 1981 SC 765) in para 33:-
"Our judgment will raise a legitimate query: If the appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely? The answer to such questions is not always easy to give in criminal cases. Different motives operate on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions. In the instant case, the dead body of a tender girl, raped and throttled, was found in the appellant's house and, instinctively, everyone drew the inference that the appellant must have committed the crime. No one would pause to consider why the appellant would throw the dead body in his own house, why would he continue to sleep a few feet away from it and whether his house was not easily accessible to all and sundry, as shown by the resourceful Shrinarayan Sharma. No one would even care to consider why the appellant's name was not mentioned to the police until quite late. These are questions for the Court to consider."
30. Therefore, even if there was strong motive for the appellant Bhoora to commit the murder of his wife and daughter on the basis of alleged suspicion, in our considered opinion, then also the appellant cannot be convicted for their murder merely on the basis of so called strong motive, as there is no presumption in the Evidence Act or any other statute that merely on the basis of motive, an accused can be convicted for committing the offence, without there being any legal evidence to establish his complicity in the commission of crime.
31. The appellant has been convicted under section 4/25 Arms Act also. One knife is said to have been recovered on the pointing out of the appellant on 05.03.1998. Ext. Ka 3 is the recovery memo, which shows that alleged recovery of knife was made in presence of two independent witnesses namely, Mushahid Husain and Raheesh, but none of them has been examined by the prosecution in trial court and only on the basis of two police witnesses the appellant has been convicted for the offence punishable under section 4/25 Arms Act. Although there is no legal bar to base conviction on the testimony of police officials, but when independent witnesses are joined in the recovery of illicit and incriminate article, then non-examination of independent witnesses becomes material. The prosecution has not shown any reason as to why the independent witnesses Mushahid Husain and Raheesh have been withheld. It was submitted by learned amicus curiae that due to non-examination of independent witnesses, adverse inference should be drawn against the prosecution and benefit of this fact should be extended to the appellant. We find force in this contention of the learned amicus curiae.
32. Regarding conviction of the appellant under section 4/25 Arms Act, it was further submitted by learned amicus curiae that neither in the charge-sheet Ext. Ka 32 nor in the charge framed by the learned trial court, number of that Notification has been mentioned, under which the possession of knife having the blade of particular length has been made punishable and hence on this ground the conviction and sentence of the appellant under section 4/25 Arms act is bad in law. In our opinion, this contention has also got force. Charge under section 4/25 Arms Act was framed against the appellant on 17.08.1998 by Sri C.K. Tyagi, the then 14th Additional Sessions Judge Moradabad, but surprisingly there is no mention of any Notification under which possession of knife of particular length is prohibited and punishable. In the charge-sheet also, the investigating officer has not mentioned any Notification which makes the possession of knife having a blade of particular length punishable. Therefore, we agree with the contention of learned amicus curiae that conviction of the appellant under section 4/25 Arms Act is not in accordance with law.
33. Next submission regarding the conviction of appellant under section 4/25 Arms Act was that investigation of the case under section 4/25 Arms Act was conducted by S.I. Raj Singh (P.W.7), who was subordinate to the then SHO P.S. Didauli K.C. Pundhir and on this ground the investigation is vitiated. This submission also is not without force. Alleged recovery of knife on the pointing out of the appellant Bhoora is said to have been made by the then SHO P.S. Didauli K.C. Pundhir P.W. 6. He had got a case under section 4/25 Arms Act registered against the appellant at P.S. Didauli. Investigation of that case was conducted by P.W. 7 S.I. Raj Singh, who admittedly was working under SHO K.C. Pundhir at the time of conducting investigation. Therefore, we agree with the contention of learned amicus curiae that investigation of the case under section 4/25 Arms Act was not fair, because subordinate police officer cannot go against the wishes of his senior officer.
34. For the reasons mentioned herein-above, the impugned judgment and order whereby the appellant- accused Bhoora has been convicted and sentenced under section 302 IPC and section 4/25 Arms Act cannot be sustained.
35. Consequently, the appeal is allowed. Setting aside the conviction and sentence recorded in S.T. No. 517 of 1998 vide impugned judgment and order, the appellant-accused Bhoora is acquitted of the charge under section 302 IPC and section 4/25 Arms Act. The appellant is undergo sentence in jail. He shall be set at liberty, if not required to be detained in jail for some other case.
The Office is directed to send a copy of this judgment immediately along-with trial court record for necessary compliance.
36. Amicus curiae Sri Samit Gopal Advocate will get Rs. 8000/- (Rupees eight thousand only) as his fee.
Dated: 17th February 2009.
v.k.updh
