JUDGMENT Vijay Kumar Verma, J.
1. By means of these appeals, preferred under Section 374 (2) of the Code of Criminal Procedure (in short 'the Cr.P.C.'), the appellants Adil, Irfan and Abdul Tahir(herein-after to be referred as 'the accused')have challenged the judgment and order dated 24.01.2007 passed in S.T. No. 84 of 2001 (State v. Abdul Tahir and Ors.) by Sri D.K. Nelwal, the then Additional Session Judge, Court No. 8, Meerut, who convicted and sentenced the appellants to death sentence under Section 302/34 and to undergo rigorous imprisonment for seven years under Section 376/511 of Indian Penal Code (in short' the IPC).
2. Capital sentence reference in terms of Section 366 Cr. P. C. has been sent by the Trial Court for confirmation of death sentence.
3. One Rizwana (herein-after referred to as 'the victim'), who had not even seen eleven summers in her life, lost her life on account of homicidal death, which is said to have been caused by the appellants-accused after making attempt to commit rape on her. When the victim went away from the tea stall after giving food to her father and brother on 13.09.2000, they would have never thought in their wildest dreams that she would not reach home and would fall victim to the barbaric and inhuman acts of some anti-social elements.
4. In a nutshell, the accused faced trial in the following backdrop:
The tea stall of P.W. 1 Aftab @ Abbu, s/o Fida Husain, r/o Mohallah Jalaluddin Pura, Kasba Kithore was situated in kasba Kithore near telephone exchange and petrol pump within the limits of Police station Kithore, district Meerut. The victim Rizwana, aged about 10 years, was the daughter of Aftab. P.W. 3 Mustafa is his son. On 13.09.2000 Aftab and Mustafa were on their tea stall. The victim had brought food for them at about 12.00-12.30 p.m. and after giving them food, she left the shop for going to home at about 1.00 p.m. carrying two empty steel containers with her, but she did not reach home. At about 3.00 or 3.30 p.m. the wife of Aftab came on the shop and informed that Rizwana has not yet reached home. On this, Aftab and Mustafa after closing their shop started the search of the victim. When after making search, the victim was not found, announcement from Maszids on loudspeakers was got made, but in vain. On 14.09.2000 missing report was lodged by Aftab at P.S. Kithore. Aftab and his son with some other persons continued to make search of the victim and when search was being made in the jungle of Kasba Kithore, the dead body of victim was found lying in a naked condition on 15.09.2000 at about 8.30 a.m. in the sugar-cane field of Intzar, situated near the razwaha (bamba). The salwar of the victim was tied on her neck. Two empty steel containers and a pair of her chappals were found lying near the dead body.
5. On recovery of the dead body of the victim, her father Aftab P.W. 1 got the written report Ext. Ka 1 scribed by Taiyyab Ali, s/o Mohd. Hanif and made over the same at P.S. Kithore. It was informed through this report that the dead body of Rizwana has been found lying in the sugar-cane field of Intzar s/o Ishak. On the basis of this report, P.W. 6 Rohtash Kumar prepared chik FIR Ext. Ka 5, and registered a case under Section 302/201 IPC at Crime No. 357/2000 against unknown persons on 15.09.2000 at 9.30 a.m., entry of which was made in the G.D. at Serial No. 24 vide Ext. Ka 6.
6. On the basis of the missing report dated 14.09.2000, the then S.S.I. of P.S. Kithore Sri Lala Ram Sharma (P.W. 7) started investigation. When he was busy in investigation and in search of the victim, on getting information of finding the dead body, he reached on the place of occurrence. The copy of the chik FIR and G.D. of registration of the case along with inquest papers were handed over there to P.W. 7, who conducted inquest proceedings on the dead body and prepared inquest report Ext. Ka 7 with connected papers Ext. Ka 8 to Ext. Ka 9 and, thereafter, the dead body in a sealed condition was handed over to constable Vijendra Singh and H.G. Raj Singh, who carried the same to Meerut for post-mortem examination, which was conducted by Dr. Anil Prakash (P.W. 5) on 15.09.2000 at 4.20 p.m. According to the post-mortem report Ext. Ka 4, the following ante-mortem injuries were found on the person of deceased:
1. Multiple contusion in an area of 20cm x 15 cm. on front of both sides of chest,...(paper torn) cartilages of 2nd to 7th ribs fractured on both sides.
2. Abraded contusion 4cm x 3cm on dorsum of right wrist.
3. Multiple abraded contusion on left side of fact in an area of 3cm x 4cm, 2cm below pinna.
4. Abraded contusion 15cm x 10cm on front of right thigh.
5. Contusion 20cm x 10 cm on front of left thigh.
6. Multiple abrasion 7cm x 5cm on front of right knee joint.
7. Contusions 7cm x 5cm on front of left leg, upper part.
In internal examination, face was bloated, eyes were bulging and tongue was protruding, abdomen was distended, breasts were swollen and blisters were present, skin was peeled off at places and maggots 0.5cm to 1cm in length were found present. Membrances and brain were congested. Pleura was lacerated on both sides, Larynx, Trachea & Bronchi were congested. Trachea contained bloody froth. Stomach contained 150 ml. Of partially digested food. Small and large intestines contained gases and faecal matter. Liver and Gall Bladder were congested.
On local examination of genital organs, no external injury inside the vagina or cervix was seen. Hymen was patent. Two slides were prepared, which were sent to pathological department of P.L. Sharma Hospital Meerut.
On Local examination of the Neck, no external injury was found around the neck and on dissection of the neck, no ecchymosis or haematoma were seen in the subcutaneous and muscular plane. Hyoid bone was intact. Bloody froth was present inside the lumen of trachea.
According to Dr. Anil Prakash, the death was caused due to asphyxia as a result of anti-mortem injuries sustained by the deceased.
7. During investigation, S.S.I. Lala Ram Sharma P.W. 7 prepared site plan Ext. Ka 15 on 15.09.2000. Empty steel containers and the pair of chappals were taken into possession and, thereafter, given in the supurdagi of P.W. 3 Mustafa vide fard supurdaginama Ext. Ka 2. On 17.09.2000 P.W. 3 Mustafa got the application Ext. Ka 3 scribed by Saraf Chaudhary and handed over the same at P.S. Kithore. After receiving the application Ext. Ka 3, P.W. 7 recorded the statements of witnesses Amir Ahmad (P.W. 4) and Abdul Halim (P.W. 2) on 23.09.2000 and arrested the accused Adil, Abdul Tahir and Irfan on 25.09.2000. Offence under Section 376/511 was added on 18.10.2000 vide GD No. 25 (Ext. Ka 13) and after completion of the investigation, chargesheet Ext. Ka 14 under Section 302, 201 and 376/511 IPC was submitted against the appellants-accused on 20.10.2000.
8. On the case being committed to the court of session for trial, charges under Section 376,302 read with Section 34 and 201 IPC were framed on 29.03.2001 against the accused, to which they pleaded not guilty and claimed to be tried.
9. The prosecution in order to prove its case examined eight witnesses in all. P.W. 1 Aftab is the father of victim. He has proved his written report Ext. Ka 1. P.W. 2 Abdul Halim is said to be the eye witness of the incident of seeing the victim and the accused going on the patri of rajwaha on 13.09.2000 at about 1.30 p.m. and snatching steel containers from the victim by the accused Adil and thereafter, carrying the victim in the sugar cane field of Intzar by the accused Irfan and Tahir on the pretext of getting the containers returned from Adil. P.W. 3 Mustafa is the brother of victim. He has proved fard supurdaginama Ext. Ka 2 and his application Ext. Ka 3. P.W. 4 Amir Ahmad is said to be the eye witness of seeing the accused coming out from the sugar-cane field of Intzar on 13.09.2000 at about 2.30 or 3.00 p.m. in a perplexed (Badahawasi) condition. P.W. 5 Dr. Anil Prakash has proved post-mortem report Ext. Ka 4. P.W. 6 constable-clerk Rohtash Kumar is the scribe of the chik FIR Ext. Ka 5, which has been proved by him along with the copy of the GD of registration of the case (Ext. Ka 6). P.W. 7 Lala Ram Sharma is the investigating officer, who has proved inquest report Ext. Ka 7, photo lash Ext. Ka 8, chalan lash Ext. Ka 9, letter R.I. Ext. Ka 10, letter CMO Ext. Ka 11 and site plan Ext. Ka 12. Fard supurdaginama of empty steel containers and pair of chappal Ext. Ka 2, copy of GD No. 25 dated 18.10.2000 Ext. Ka 13 and chargesheet Ext. Ka 14 also have been proved by this witness. P.W. 8 constable Vijendra Singh, is the dead body carrier, who carried the dead body of the victim for post-mortem examination.
10. In their statements recorded under Section 313 Cr. P.C., the accused denied their participation in the alleged incident and they have stated that due to political pressure and enmity, Parvez and Mumtaz had got the false report lodged against them by Mustafa.
The accused Abdul Tahir has further stated in his statement that he was engaged for performing the duty of chaukidar in telephone exchange, Kithore. At that time, the building of the exchange was being constructed. The complainant Mustafa and Aftab constructed their house after committing theft of building material from the telephone exchange and when he restrained them from carrying the building material, they abused him and threatened to falsely implicate him in some case.
The accused Adil has stated in his statement that at the time of alleged incident, he was serving in the cement factory under the contractor, where he used to go to work at about 8.00 a.m. and return at about 5.00 p.m. The accused Irfan has further stated in his statement that he was working at the Ara Machine, where he used to go at about 7.00 a.m. and return in the evening at about 6.00 p.m.
11. The accused have not led any evidence in their defence.
12. We have heard Sri Satish Trivedi, learned senior counsel appearing for the accused-appellant Abdul Tahir, Sri N.I. Jafri, learned Counsel for the accused-appellants Adil and Irfan and Sri R.K. Singh, learned AGA for the State at considerable length and perused the entire record carefully.
13. Admittedly there is no direct evidence about making attempt by the accused to commit rape on the victim and to commit her murder. The case of the prosecution is based upon circumstantial evidence of lastly seeing the victim going with the accused in the sugar-cane field of Intzar on 13.09.2000 at about 1.30 p.m. and thereafter seeing the accused coming out from the field in a perplexed condition at about 2.30 or 3.00 p.m. To establish these facts, witnesses Abdul Halim and Amir Ahmad have been examined by the prosecution as P.W. 2 and P.W. 4 respectively. In his statement recorded on 04.06.2002 as P.W. 2, Abdul Halim has stated that on 13.09.2000, he had gone to purchase diesel from a petrol pump at about 1.00 p.m. and when after purchasing the diesel, he was coming back to his house, in the way Km. Rizwana, D/o Aftab was going ahead of him at a distance of about 10-12 paces and when she reached on the patri of rajwaha, the accused Adil, Abdul Tahir and Irfan present in court met her there. Adil snatched the empty container of milk from the hand of Km. Rizwana on which she began to weep and asked Adil to give her the empty containers, but Adil entered into the sugar-cane field of Intzar carrying the containers. On this the accused Irfan and Tahir told Km. Rizwana that they would get her empty containers returned from Adil and they carried her with them in the field of Intzar. It is further stated by this witness that after the aforesaid incident he came back to his house and then went away to village Khajuri and when after three days he returned to his house and came to know that the dead body of Km. Rizwana has been found lying in sugar-cane field of Intzar, he went to the house of Aftab and told him about the incident, which he had seen on 13.09.2000.
14. The statement of P.W. 4 Amir Ahmad was recorded on 21.08.2002. In that statement he has stated that on 13.09.2000 at about 21/2-3.00 p.m., he had gone to ease himself towards rajwaha and when he was going towards the field from the patri of rajwaha for the purpose of easing himself, he saw that the accused Adil, Irfan and Tahir present in court were coming out from the sugar-can field of Intzar in a perplexed condition and from their appearance, it was appearing that they have committed some wrong act. It is further stated by this witness that when the accused went away from his side, he after easing himself came back to his shop and from there he went to his Nanihal (house of Nana) and when he returned from his Nanihal on 16.09.2000 and came to know that the dead body of Km. Rizwana has been found lying in the sugar-cane field of Intzar, then he went to the house of Mustafa (brother of victim) and informed him and his father that on 13.09.2000 at about 2 1/2 -3.00 p.m. he had seen Adil, Irfan and Tahir coming out from the sugar-cane field of Intzar in a perplexed condition.
15. The learned Trial court believing the statements of aforesaid witnesses has convicted and sentenced the accused as mentioned in para one above. Before making comments on the testimony of these witnesses,let us have a look on the legal position to base a conviction on circumstantial evidence. It is often said that witnesses may lie, but the circumstances cannot. To convict a person on the basis of circumstantial evidence, all the circumstances relied upon by the prosecution must be clearly established. The proved circumstances must be of such a nature as would reasonably exclude the possibility of innocence of the accused. The circumstantial evidence should be consistent with the guilt of the accused and inconsistent with his innocence. The chain of circumstances, furnished by the prosecution, should be so complete as not to lead any reasonable ground for conclusion consistent with the innocence of the accused. The Hon'ble Apex Court has consistently held that when the evidence against the accused, particularly when he is charged with a grave offence like murder, consists of only circumstances, they must be qualitatively such, that on every reasonable hypothesis, the conclusion must be that the accused is guilty; not fantastic possibilities nor freak inferences, but rational deductions which reasonable minds make from the probative force of facts and circumstances.
16. The following observations made in para 7 & 8 by Hon'ble Apex Court in the case of State of U.P. v. Hari Mohan and Ors. 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 v. Jagir Singh, Baljit Singh and Karam Singh ), 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 v. Lekh Raj and Sons 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.
17. It has been consistently laid down by Hon'ble Apex Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person(See Hukum Singh v. State of Rajasthan , Eradu v. State of Hyderabad , Earabhadrappa v. State of Karnataka , State of U.P. v. Sukhbasi , Balwinder Singh v. State of Punjab and Ashok Kumar Chatterji v. State of M.P. . The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab , it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances, must be such as to negate the innocence of the accused and bring home the offences beyond any reasonable doubt.
18. We may also make a reference to a decision of Hon'ble Apex Court in C. Chenga Reddy v. State of A.P. , Wherein it has been observed thus in para 21:
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.
19. In Padala Veera Reddy v. State of A.P. , 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.
20. In State of U.P. v. Ashok Kumar Srivastava , 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.
21. 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.
22. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by Hon'ble Apex Court as far back as in 1952. In Hanumant Govind Nargundkar v. State of M.P. It was observed thus:(SCR PP 1097-98) 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.
23. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra . Therein, while dealing with circumstantial evidence, it has been held that the onus is on the prosecution to prove that the chain is complete and the infirmity or lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of Hon'ble Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153) (1) 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:
(2) 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:
(3) the circumstances should be of a conclusive nature and tendency:
(4) they should exclude every possible hypothesis except the one to be proved; and (5) 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.
24. Let us now analyse the evidence in the background of the principles highlighted above. We have already mentioned the statements made by P.W. 2 Abdul Halim and P.W. 4 Amir Ahmad in their examination-in- chief. If the afore cited statements of these witnesses are believed to be true, then there is no impediment in convicting the accused for the murder of the victim, because in that case, on the basis of afore-cited statements of these witnesses, the only inference that can be drawn would be that the murder of victim might have been committed by the accused and none else.
25. The testimony of the witnesses Abdul Halim and Amir Ahmad has been assailed by the learned Counsel for the appellants contending that both these persons are got-up witnesses and their statements do not inspire confidence and hence the conviction of the accused recorded by the learned Trial Court on the basis of the testimony of these witnesses is wholly illegal. Having carefully gone through the statements of the witnesses Abdul Halim and Amir Ahmad, we find force in the aforesaid submission made by learned Counsel for the appellants-accused.
26. The main witness of this case is P.W. 2 Abdul Halim. This witness has stated in his statement that after seeing the incident on the patri of rajwaha on 13.09.2000, he went away to village Khajuri and when he came back after three days to his house and came to know that the dead body of the victim has been found lying in the sugar-cane field of Intzar, then he went to the house of complainant Aftab and told him about the incident, which he had witnessed on 13.09.2000. This statement made by P.W. 2 in Trial court about going to village Khajuri on 13.09.2000 after seeing the alleged incident, is a clear improvement, because no such statement was made by him before the investigating officer, as he himself has admitted in his statement. Therefore, this part of the statement of Abdul Halim cannot be believed. The story of going of P.W. 2 to village Khajuri has been purposely invented by the public prosecutor in the Trial Court with a view to show him away from Kasba Kithore for three days to justify non disclosure of the incident by him prior to 16.09.2000. Therefore, it is not safe to place reliance on the statement of the witness Abdul Halim about his going to village Khajuri after seeing the alleged incident on the patri of rajwaha on 13.09.2000.
27. P.W. 3 Mustfa is the brother of the victim. In his statement this witness has stated during cross-examination on 24.07.2002 that information about not reaching of the victim at her house was given to him by his mother at about 4.00 or 4.30 p.m. and, thereafter, he and his father after closing the shop began to make a search for the victim and when she was not found anywhere, announcements by loudspeakers were got made from Maszids. It is specifically stated by P.W. 3 Mustafa that the announcements from loudspeakers were got made from all the big Maszids including Hakeem Ji Wali Maszid, Ganjey Wali Maszid, Dada Wali Maszids and Waith-Ul-Ulam Wali Maszid. It has came in the testimony of this witness that on making the announcements by loudspeakers from these Maszids, the sound spreads in the whole village. Admittedly, the witness Abdul Halim is a near relative of the complainant, as his grandfather Umar Khan was the real brother of Nazar Khan, grandfather of the complainant Aftab. Although vigorous search for the victim was being made in Kasba Kithore and other villages also and announcement by loudspeakers was also got made from many Maszids about the missing of the victim, but the witness Abdul Halim remained silent and he did not disclose to any person the fact of seeing the victim and the accused going on the patri of rajwaha on 13.09.2000 and carrying her into the sugar-cane field of Intzar by the accused. This conduct of the witness Abdul Halim makes his testimony wholly unreliable, because this conduct is against human nature. If actually the witness Abdul Halim had seen the victim and the accused going into the sugar-cane field of Intzar on 13.09.2000, then he would have certainly disclosed this fact to the father and brother of the victim when search for her was being made and announcement about missing of the victim was also got made by loudspeakers from many Maszids. Non-disclosure of the alleged incident by the witness Abdul Halim to the father and brother of the victim or any other person even after announcement by loudspeakers from Maszids, shows that actually no incident as alleged by this witness had occurred and he did not see the accused carrying the victim into the sugar-cane field of Intzar as stated by him in his statement. Had he actually seen such an incident as alleged by him in his statement, then he would have certainly disclosed this fact at least to the father or brother of the victim after coming to know that the victim was missing. It cannot be believed that the witness Abdul Halim did not remain present in Kasba Kithore after seeing the alleged incident and went away to village Khajuri, as this witness did not tell the Investigating Officer during investigation that after seeing the alleged incident on 13.09.2000, he had gone away to village Khajuri. As we have stated above, a false story of going of the witness Abdul Halim to village Khajuri on 13.09.2000 after seeing the alleged incident has been invented for the first time in the Trial Court by the public prosecutor with a view to justify non-disclosure of the incident prior to 16.09.2000 and to further justify the delay in lodging the second FIR (Ext Ka 3) naming the appellants-accused. Therefore, for the reasons mentioned above, no reliance can be placed on the testimony of the witness Abdul Halim.
28. Assuming for the sake of argument that the witness Abdul Halim had gone away on 13.09.2000 to village Khajuri, then also his testimony about seeing the accused carrying the victim into the sugar-cane field of Intzar on 13.09.2000 cannot be believed, because he did not inform the father or brother of the victim about that incident on 15.09.2000 after returning from Khajuri or at the time of burying the dead body of the victim on 16.09.2000. In Muslim religion, a prayer is offered before burying the dead body, which is called Namaz of Janaza. P.W. 2 Abdul Halim has admitted in his statement in para 36 at page 26 of paper book that he had read over the Namaz of Janaza of Rizwana and he had participated in her janaza. In para 38 of his statement, Abdul Halim has stated that the dead body of the victim was buried on 16.09.2000. P.W. 3 Mustafa (brother of the victim) has stated in his statement at page 41 of paper book that dead body of Rizwana was buried on 16.09.2000 at the time of morning. Although P.W. 2 Abdul Halim had participated in janaza of victim and he had also read over the Namaz of Janaza on 16.09.2000, but he did not disclose the incident of seeing the accused Adil snatching empty containers from the victim and thereafter carrying her by the accused Abdul Tahir and Irfan into the sugar-cane field of Intzar on the pretext of getting the containers returned to her. As stated above, according to the witness Mustafa, the dead body of his sister Rizwana was buried at the time of morning on 16.09.2000. No explanation has been furnished by P.W. 2 Abdul Halim as to why he kept silent at the time of burying the dead body or up to evening of 16.09.2000 and did not disclose the alleged incident to any person during this period. This conduct of Abdul Halim also is against human nature, which totally falsifies his testimony. If actually this witness had seen the alleged incident on the patri of rajwaha on 13.09.2000, then he would have certainly disclosed this fact at least at the time of burying the dead body of the victim, but as stated above, he remained silent and did not tell to any person that he had seen the victim going with the accused into the sugar-cane field of Intzar on 13.09.2000. This fact shows that no such incident as has been stated by the witness Abdul Halim had actually taken place and a false story has been concocted.
29. There is material contradiction in the statements of P.W. 2 Abdul Halim and P.W. 3 Mustafa on the point of giving information about the alleged incident of 13.09.2000. P.W. 3 Mustafa has stated in his statement at page 41 of paper book that Abdul Halim had come to his house on 16.09.2000 in the night at about 8.30 or 9.00 p.m. and at that time he had told about the incident, which he had witnessed on 13.09.2000 on the patri of rajwaha. From this statement of P.W. 3 Mustafa, this fact is borne out that information about the alleged incident of 13.09.2000 was given to him and his father by Abdul Halim (P.W. 2) in the night at about 8.30-9.00 p.m. on 16.09.2000 at their house, but the aforesaid statement of P.W. 3 Mustafa is contradicted by Abdul Halim (P.W. 2). In his statement at page 28 of paper book, P.W. 2 Abdul Halim has stated that he had not told about the alleged incident to Aftab and Mustafa at their house, but he had told them about that incident in the mohalla. It is specifically stated by P.W. 2 Abdul Halim in his statement at page 28 of the paper book that he had told about the incident to Aftab and Mustafa in front of his house and not at their house. It has come in evidence that there are about 50 houses in between the house of Abdul Halim and complainant Aftab. The aforesaid material contradiction regarding the place of giving information by Abdul Halim to Mustafa and Aftab about the alleged incident shows that a false story of seeing the victim and accused together on 13.09.2000 at about 1.30 p.m. on the patri of rajwaha and carrying her by the accused into the sugar-cane field of Intzar and giving information by Abdul Haleem regarding that incident to Aftab and Mustafa on 16.09.2000 has been concocted by the prosecution with a view to falsely implicate the accused in this case.
30. From the statement given by the witness Abdul Halim to the investigating officer during investigation, this fact is borne out that this witness had come to know on 15.09.2000 that the dead body of the victim has been found lying in the sugar-cane field of Intzar. At page 23 of paper book, Abdul Halim (P.W. 2) has admitted that he had made the following statement to Daroga Ji (Investigating Officer):
tc rhljs fnu fn0 15-09-2000 dks eSus lquk fd vkQrkc dh yM+dh fjtokuk dh yk'k bfUrtkj ds [ksr esa cEcs ds ikl feyh gS] rc eS le> x;k Fkk fd ml fnu rkfgj] bjQku o vkfny fMCcs ds cgkus mls bZ[k ds [ksr esa ys x;s vkSj mls uaxk djds cqjk dke djus dh dksf'k'k dh] dke;kc u gksus ij mls xyk nckdj ekj fn;kA
31. Aforesaid statement of Abdul Halim has been proved by Investigating Officer Lala Ram Sharma (P.W. 7) also in his statement at page 77 of the paper book. It is further stated by Abdul Halim in his statement at page 23 of the paper book that on returning from outside, he came to know on 15.09.2000 at about 2.00 p.m. from the mohalla people that the dead body of the victim was found lying in the sugar-cane field of Intzar. From the aforesaid statement of P.W. 2 Abdul Halim, this fact is borne out that he was present in kasba Kithore on 15.09.2000 at about 2.00 p.m. and he came to know on that very day that the dead body of the victim was found lying in the sugar-cane field of Intzar. Abdul Halim has stated in his statement at page 23 of the paper book that he immediately informed Aftab and Mustafa about the incident, which had occurred in his presence with Rizwana, although changing this statement he has stated immediately thereafter that he had informed them in the evening. From the aforesaid statement of Abdul Halim recorded at page 23 of paper book, the statement of witness Mustafa about getting information from Abdul Halim on 16.09.2000 in the night at about 81/2-9.00 p.m. at his house is totally falsified, because according to the statement of Abdul Halim recorded at page 23 of paper book, he had given information to Aftab and Mustafa on 15.09.2000. The application Ext. Ka 3 naming the accused was given at P.S. Kithore by Mustafa on 17.09.2000. He has not furnished any explanation as to why no report was lodged by him or his father Aftab immediately after getting information on 15.09.2000 regarding the alleged incident from Abdul Halim and waited upto 17.09.2000. In the application Ext. Ka 3, no date of giving of the information by Abdul Halim and Amir Ahmad has been mentioned. Due to non mentioning of the date of giving the information by Abdul Halim and Amir Ahmad in the application dated 17.09.2000 Ext. Ka 3 and having regard to the aforesaid material contradiction about the date and place of giving of the information by Abdul Halim, the only inference that can be drawn would be that a false story has been concocted about carrying the victim by the accused inside the sugar-cane field of Intzar on 13.09.2000 and seeing that incident by Abdul Halim and giving information by him about that incident to Mustafa and Aftab on 16.09.2000. Therefore, no reliance can be placed on the testimony of Abdul Halim or Mustafa as their statements do not inspire confidence.
32. The next witness of circumstantial evidence is Amir Ahmad, who has been examined as P.W. 4. He claims to have seen the accused persons coming out from the sugar-cane field of Intzar in a perplexed condition at about 21/2-3.00 p.m. on 13.09.2000. We have carefully gone through the statement of this witness also. He is not only a chance witness, but his testimony also is not worthy of credence, as he has made contradictory statements about seeing the accused persons on 13.09.2000. In his examination-in-chief recorded on 21.08.2000, Amir Ahmad (P.W. 4) has stated that when on 13.09.2000 at about 21/2-3.00 p.m. he had gone to ease himself towards the rajwaha and when he was going for easing himself in the field from the patri of rajwaha, he saw the accused Adil, Irfan and Tahir coming out from the sugar-cane field of Intzar in a perplexed condition. This statement has been contradicted by this witness himself during cross-examination. At page 54 of the paper book, Amir Ahmad has stated that his stomach had become out of order all of a sudden on the shop and hence he had gone to ease himself. At page 52 of the paper book also, it is stated by the witness that he had gone on that day per chance for easing himself, as his stomach had become out of order. It shows that Amir Ahmad is merely a chance witness. It has come in the testimony of this witness that there is a jungle behind the Mawana bus stand in kasba Kithore and that jungle is nearer than the place where Amir Ahmad claims to have gone to ease himself. If actually the stomach of Amir Ahmad had become out of order, due to which he had to rush to ease himself, then he could easily sit to ease himself in any field in the jungle situated behind the Mawana bus stand and there was no need to go upto the rajwaha. This shows that Amir Ahmad also has concocted a false story of going upto the rajwaha to ease himself on 13.09.2000.
33. Although as mentioned above, P.W. 4 Amir Ahmad has stated in his examination-in-chief that he had seen the accused persons coming out from the sugar-cane field of Intzar,but changing this version in cross-examination, it is stated by this witness in his statement at page 59 of the paper book that when he had seen the accused persons, they were running towards Garh through the fields and their back side was towards him. Again this version has been changed by Amir Ahmad and he has stated in his statement at page 61 of the paper book that for the first time, he had seen the accused persons face to face at a distance of 10 or 15 furlangs and seeing him, the accused persons had fled away towards Indira market. These material contradictions regarding the manner of seeing the accused persons by Amir Ahmad make his testimony unworthy of credence.
34. Material improvement has been made in the statement of P.W. 4 Amir Ahmad also, as he too was sent to his nanihal on 13.09.2000 by the public prosecutor at the time of recording his statement in Trial court. It is stated by P.W. 4 Amir Ahmad in his examination-in-chief at page 49 of the paper book that after seeing the incident on 13.09.2000, he had gone away to his nanihal in district Muzaffar Nagar. No such statement was made by this witness to the investigating officer during investigation at the time of recording his statement under Section 161 Cr. P. C. Although this witness has stated at page 62 of the paper book that he had told Daroga Ji that he had gone to his nanihal on 13.09.2000, but from a perusal of the statement of this witness recorded under Section 161 Cr. P. C. in the case diary, it is observed that no such statement was made by him to the investigating officer, as it is nowhere mentioned in that statement that he had gone to his nanihal on 13.09.2000. Although during cross-examination of the investigating officer Lala Ram Sharma P.W. 7 in Trial court, due to inadvertence on the part of defence counsel, it was not asked from him whether the witness Amir Ahmad had told him that he had gone to his nanihal, but exercising the power conferred by Section 172 Cr.P.C. we ourself have perused the statement of Amir Ahmad recorded in the case diary under Section 161 Cr. P. C. by the investigating officer to ascertain the above fact. Had Amir Ahmad told the Investigating Officer that he had gone to his Nanihal on 13.09.2000, then this fact would have been certainly mentioned in the statement of this witness recorded under Section 161 Cr.P.C. in the case diary, but it is nowhere mentioned in the statement of Amir Ahmad that he had gone away to his nanihal after seeing the incident on 13.09.2000. Therefore, being an improvement, the story of going of the witness Amir Ahmad to his nanihal on 13.09.2000 cannot be believed and this story also has been invented by the public prosecutor merely to keep this witness out of kasba Kithore up to 16.09.2000 with a view to justify non-disclosure of the incident by this witness up to 16.09.2000.
35. From the statement of witness Amir Ahmad recorded under Section 161 Cr. P. C. by the investigating officer, this fact is borne out that he was very much present in kasba Kithore at the time when the dead body of the victim was found lying in the sugar-cane field of Intzar. At page 59 of the paper book, P.W. 4 Amir Ahmad has made following statement:
eq>s /;ku ugh fd eSaus njksxk th dks ;g c;ku fn;k fd "tc nks fnu ckn bartkj ds mlh [ksr esa] ftl bZ[k ds [ksr ls bjQku] vkfny o rkfgj fudy dj Hkkxs Fks] eqLrQk dh cgu fjtokuk dh yk'k feyh"A fQj dgk fd fn;k FkkA eSus njksxk th dks ;g c;ku fn;k Fkk fd "eSaus ;g iwjh ckr eqLrQk dks vkSj mlds firk vCcw dks crkbZA From the afore cited statement of Amir Ahmad it is established that this witness was present in kasba Kithore at the time when the dead body of the victim was found lying in the sugar-cane field of Intzar and on that very day he had narrated the entire story to the father and brother of the victim. On the basis of aforesaid statement made by Amir Ahmad during investigation, the story of his going to his nanihal on 13.09.2000 and returning from there on 16.09.2000 and then informing the father and brother of the deceased about the alleged incident is falsified. If actually the witness Amir Ahmad had seen the accused persons coming out from the sugar-cane field of Intzar in a perplexed condition on 13.09.2000 at about 21/2-3.00 p.m. as claimed by him and from their appearance it was appearing to him that they have committed some wrong act, then he should have disclosed this fact to the father or brother of the victim after hearing the announcement made by loudspeakers from the masjids in the evening on 13.09.2000 regarding her missing or at least on 15.09.2000 after the dead body of victim was found lying in the sugar-cane field of Intzar, but he kept silent and for the first time in the night of 16.09.2000 he is said to have informed Aftab and Mustafa about the aforesaid incident. This conduct is against human nature. Remaining silent and not disclosing the aforesaid incident to any person even after the dead body of the victim was found lying in the sugar-cane field of Intzar is indicative of the fact that no such incident as stated by Amir Ahmad in his statement had occurred and a false story has been concocted by him for the reasons best known to him. With a view to fill up this lacuna, the public prosecutor at the time of examination of Amir Ahmad in Trial court, sent him also to his nanihal. It is worthwhile to mention that the witness Abdul Halim also was sent by the public prosecutor to his nanihal in village Khajuri, although his sasural is also there in village Khajuri. The public prosecutor has purposely made improvement in the testimony of both these witnesses by sending them to their nanihal on 13.09.2000 after seeing the alleged incident, merely with a view to justify the delay in lodging the second FIR (Ext. Ka-3) naming the accused. Hence no reliance can be placed on the testimony of witness Amir Ahmad also.
36. On the basis of the aforesaid discussion, we come to the definite conclusion that testimony of the witnesses Abdul Halim and Amir Ahmad is wholly unreliable and hence no reliance can be placed on their testimonies. After careful scrutiny of the statements of these witnesses, it is fully established beyond any doubt that a false story of snatching empty containers from the hands of victim by the accused Adil on 13.09.2000 at about 1.30 p.m. and carrying her inside sugar-cane field of Intzar by accused Abdul Tahir and Irfan on the pretext of getting the containers returned from Adil and thereafter seeing the accused persons coming out from that field at about 21/2-3.00 p.m. in perplexed condition has been concocted with a view to falsely implicate the accused persons in this case due to political pressure and enmity as stated by the accused in their statements recorded under Section 313 Cr. P. C.
37. In addition to pointing out the aforesaid weakness of the testimony of the witnesses Abdul Halim and Amir Ahmad, it was vehemently contended by the learned Counsel for the appellants that the learned court below has committed serious infirmity in examination of the accused under Section 313 Cr.P.C., as the incriminating material evidence appearing in the evidence has not been put to the accused at the time of recording their statements under Section 313 Cr. P. C. In this regard, it was contended by learned Counsel for the appellants that the entire prosecution case is based on two circumstances, which have been believed to be proved by the learned Trial court. The first circumstance is that on 13.09.2000 at about 1.30 p.m., the accused Adil had snatched empty containers from the hand of the victim and he entered into the sugar-cane field of Intzar carrying the containers and thereafter the accused Abdul Tahir and Irfan carried the victim in side that field on the pretext to get the empty containers returned to her from Adil. This incident is said to have been witnessed by P.W. 2 Abdul Halim. While examining the accused persons under Section 313 Cr.P.C., the learned trial court did not formulate any question regarding the evidence led by the prosecution to establish the aforesaid circumstance. Question No. 7 of the examination of the accused under Section 313 Cr.P.C. has been framed by the learned Trial court in the following manner:
iz'u la0 7& vfHk;kstu dk lk{; gS fd lk{kh vkfey vgen] vCnqy gyhe us vki rkfgj] vkfny o bjQku dks fjtokuk ds lkFk [ksr eas tkrs ns[kk Fkk] t(R) ?kVuk LFky ds ikl FkkA bl ckjs esa vkidks D;k dguk gS\ This question is misconceived, as no witness named Amil Ahmad had seen the accused and victim together entering into the field of Intzar. The only witness of aforesaid fact is Abdul Halim, who has been examined as P.W 2. It is not mentioned in question No. 7 as to on which date and time and in whose field, the witness Abdul Halim had seen the accused and victim entering together. No question has been framed by the learned Trial court about the incident of snatching empty containers from the hand of victim by accused Adil on 13.09.2000 at about 1.30 p.m. as stated by P.W. 2 Abdul Halim in his statement. In the like manner no question has been framed by the learned Trial court on the point of carrying the victim by the accused Tahir and Irfan inside the sugar-cane field of Intzar on the pretext of getting the empty containers returned to her from Adil.
38. The second circumstance is that the accused persons are said to have been seen by P.W. 4 Amir Ahmad coming out from the sugar-cane field of Intzar on 13.09.2000 at about 21/2-3.00 p.m. in a perplexed condition. Surprisingly, the learned Trial court has not framed any question on the aforesaid circumstance also. Barring question No. 7, which is misconceived as stated above, the learned Trial court did not take pain to frame any question on the aforesaid material circumstances, on which the entire prosecution case is based. No question has also been framed on the point of going of the witnesses Abdul Halim and Amir Ahmad to their nanihal on 13.09.2000 after seeing the alleged incident, as stated by them in their statements. It has come in the testimony of P.W. 3 Mustafa that the witnesses Abdul Halim and Amir Ahmad came to his house on 16.09.2000 in the night and told him about the incident, which they had witnessed on 13.09.2000 near the rajwaha. On the basis of that information, report Ext. Ka 3 naming the accused showing their complicity in the incident of committing murder of the victim was lodged by Mustafa at P.S. Kithore on 17.09.2000, but no question was framed by the learned Trial court on this point also.
39. The question that arises for consideration is whether the omission to put the aforesaid material incriminating circumstances appearing in the evidence to the accused at the time of their examination under Section 313 Cr.P.C. is fatal to the prosecution case. The circumstances referred to above appearing in the evidence against the accused are material circumstances, on which the entire prosecution case is based. In our considered view, the omission to frame questions regarding the aforesaid circumstances is fatal for the prosecution case. We fully agree with the contention of the learned Counsel for the appellants that due to omission to put questions to the accused regarding these material incriminating circumstances appearing in the evidence has seriously prejudiced the accused in their defence.
40. The purpose of Section 313 Cr.P.C. is set out in its opening words- "for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him." In Het Singh, Bhagat Singh v. State of Madhya Pradesh , it has been laid down by Hon'ble Apex Court as under:
The statements of accused persons recorded under Section 313 of the Code 'are among the most important matters to be considered at the trial'. It was pointed out that the statements of the accused recorded by the committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box and that they have to be received in evidence and treated as evidence and be duly considered at the trial. This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there.
The object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.
41. The Hon'ble Apex Court has held in the case of Ajay Singh v. Stae of Maharashtra 2007 (58) ACC 1061 that:
The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances 'which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.
42. It is further held by Hon'ble Apex Court in the case of Ajay Singh (supra) in para 13 that:
It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accusd is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstances should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand.
43. In the case of Jaidev and Anr. v. State of Punjab while examining the effect of Section 342 of the Code as it then stood, the Hon'ble Apex Court held thus:
The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him he did get an opportunity to say what he wanted to say in respect of prosecution case against him.
44. It is observed by Hon'ble Apex Court in the case of Harijan Megha Jesha v. State of Gujrat that if any incriminating circumstance appearing in evidence has not been put to the accused in his statement under Section 342(now 313) Cr. P. C., the prosecution cannot be permitted to rely on that circumstance in order to convict the accused. Similar view has been expressed by Hon'ble Apex Court in the case of Lallu Manjhi and Anr. v. State of Jharkhand 2003 S.C.C. (Cri.) 544.
45. In the case of State of Maharashtra v. Sukhdeo Singh and Anr. 1992 Crl. LJ 3454 the Hon'ble Apex Court has held as under:
It is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence of circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. Section 313 imposes a heavy duty on the Court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words 'shall question him' clearly bring out the mandatory character of the clause and cast an imperative duty on the Court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him.
46. In the case of Yusuf @ Babu Khan v. State of Rajasthan 2003 SC Cr. R. 782 the material circumstance was that the appellants were found in a Maruti van which carried the explosives, but this circumstance was not put to the appellants when their statements were recorded under Section 313 Cr. P. C. The Hon'ble Apex Court has held that omission to put this material circumstance to the accused in their examination under Section 313 Cr. P. C. would go to the root of the prosecution case and the benefit of which omission would naturally go to the accused and therefore, any conviction in spite of such omission is per-se contrary to the requirement of law, therefore, prejudice is inherent on the face of the record. Omission to put the circumstance that these appellants were found in the Maruti van in which explosives were found is such a material omission which has gone to the root of the prosecution case and which has prejudiced the defence of the appellant, hence has vitiated the trial'. With these observations, appeals were allowed by the Hon'ble Apex Court setting aside the judgment and conviction of the designated court.
47. In the case of Nirmal Pasi and Anr. v. State of Bihar 2003 SCCr R 1030, the Hon'ble Apex Court has made the following observations regarding the effect of the omission to put the material circumstance to the accused in the examination under Section 313 Cr.P.C.:
The purpose of recording statement under Section 313 of the Cr.P.C. is to enable the accused person to explain any circumstances appearing in the evidence against him. A piece of incriminating evidence relied on by the prosecution and found proved by the Court so as to rest the conviction of the accused thereon must be put to the accused in his statement under Section 313 of the Cr.P.C. enabling him to offer such explanation as he may choose to do. Unless that is done, the piece of incriminating evidence cannot be relied on for finding a verdict of guilty.
48. In the case of Sharad Birdhichand Sarda v. State of Maharashtra also it is held by the Hon'ble Apex Court that if any material incriminating circumstance appearing in the evidence has not been put to the accused, then the evidence regarding such circumstance can not be used against the accused and such evidence is to be excluded from consideration, because the accused did not have any chance to explain that circumstance.
49. In view of the observations made by the Hon'ble Apex Court in the aforesaid cases,in our view, in the instance case also, the appellants-accused have been seriously prejudiced in their defence due to the omission to put in their examination under Section 313 Cr.P.C. the aforesaid material incriminating circumstances appearing against them in the evidence, as they have been deprived of an opportunity to offer explanations regarding those circumstances. Hence the above mentioned circumstances appearing in the statements of the witnesses could not be used against the appellants-accused, but unfortunately the learned Trial court has recorded the conviction of the appellants-accused taking that circumstantial evidence also into consideration, which was not put to them in their statements recorded under Section 313 Cr. P .C.
50. Therefore, for the reasons mentioned here-in-above, in our opinion, the conviction of the appellants-accused on the basis of the evidence of the witnesses Abdul Halim and Amir Ahmad is bad in law, as not only the testimony of these witness is wholly unreliable, but the material circumstances appearing in their evidence were not put to the accused at the time of their examination under Section 313 Cr. P. C., which is fatal to the prosecution case.
51. Drawing our attention towards Bimbadhar Pradhan v. State of Orissa 1956 SC 469, State of Punjab v. Swaran Singh , Rautu Bodra and Anr. v. State of Bihar 1999 SCC (Cri) 1319 and Suresh Chandra Bahri v. State of Bihar , it was submitted by learned AGA that the witnesses Abdul Halim and Amir Ahmad have been cross-examined at length on behalf of the accused persons, who were knowing the charges against them and hence it can not be said that any prejudice has been caused to the accused due to omission to put the questions regarding snatching of empty containers from the hands of the victim by the accused Adil on 13.09.2000 at about 1.30 p.m. and thereafter, carrying her into the sugar-cane field of Intzar by the accused Tahir and Irfan on the pretext of getting the empty containers returned to her from Adil and also seeing the accused coming out from that field at about 21/2-3.00 pm. as appearing in the statements of the witnesses Abdul Halim and Amir Ahmad. It was further submitted by the learned AGA that if this Court feels that any prejudice has been caused to the accused due to the omission to put the material circumstances in their examination under Section 313 Cr. P. C., then either the case should be remitted to the Trial court for re-examination of the accused under Section 313 Cr.P.C. or the accused be summoned from jail and their statements under Section 313 Cr. P. C. be recorded by this Court. Having carefully gone through the rulings referred by learned AGA, we are not impressed with the aforesaid submissions made by him. As we have stated above, the entire case of the prosecution is based on the circumstantial evidence regarding snatching the empty containers from the victim by the accused Adil and thereafter carrying her in the sugar-cane field of Intzar by accused Irfan and Tahir at about 1.30 p.m. on 13.09.2000 and seeing the accused coming out from that field in a perplexed condition at about 21/2-3.00 p.m. on that day. Unfortunately both these circumstance were not put to the accused in their statements recorded under Section 313 Cr. P. C. Therefore, having regard to the law laid down by the Hon'ble Apex Court in the cases which we have mentioned above, in our considered view, omission to put the aforesaid circumstances to the accused at the time of their examination under Section 313 Cr. P. C. is fatal to the prosecution case and in our opinion, the accused have been seriously prejudiced in their defence due to such omission. Since, for the reasons mentioned above, the testimony of the witnesses Abdul Halim and Amir Ahmad is wholly unreliable and conviction recorded by learned Trial court on the basis of the testimony of these witnesses can not be sustained, hence no useful purpose would be served to remit the case to the trial court for re-examination of the accused under Section 313 Cr. P. C. Although this Court also can record the statements of appellants-accused under Section 313 Cr.P.C. as held by Hon'ble Apex Court in the case of State (Delhi Administration) v. Dharam pal 2002 (46) A.L.R. 579 (SC), but for the reasons mentioned above, summoning the appellants-accused from jail for recording their statements under Section 313 Cr. P. C. would not yield any fruitful result. Hence we are not inclined to summon the appellants from jail for the purpose mentioned above.
52. It was further submitted by learned Counsel for the appellants that admittedly no rape was committed on the victim and since there was no other motive for the accused to commit the murder of the innocent child, hence on this ground, it can be said that an important link in the chain of circumstantial evidence is missing, benefit of would go to the accused. This submission made by learned Counsel for the appellants-accused has also got force. Undisputedly rape was not committed on the victim and learned trial court also has not convicted the accused-appellants under Section 376 IPC, although charge was framed in this section. The finding of making an attempt to commit rape on the victim has been recorded by learned trial court, although there is no evidence to show that any attempt to commit rape on the victim was made. No person had seen the actual incident. In our view merely on the basis of ante-mortem injuries on the breast or other parts of the body of the victim, inference of making an attempt to commit rape on her cannot be drawn. There are four stages of the crime; they are (1) intention (2) preparation (3) attempt and (4) commission. Preparation and attempt are two different stages of the crime. When preparation is complete, then attempt starts. In the case of rape, there is a thin difference between preparation and attempt. Finding of attempt to commit rape can be recorded only when the accused does some act towards actual commission of rape. Outraging the modesty of a woman in making preparation to commit rape is punishable under Section 354 IPC and not under Section 376 read with Section 511 IPC. In the instant case, there is no evidence to show that the person/persons, who had committed murder of the victim, had done some act beyond outraging her modesty in making the preparation to commit rape on her. No injury was found on the private part of the victim at the time of the post-mortem examination of her dead body. On the basis of findings recorded in the post-mortem report, inference of making attempt to commit rape on the victim cannot be drawn. Hence, in our view, the conviction of the appellants-accused for the offence punishable under Section 376/511 IPC is not in accordance with law. Had the victim, who was a minor child aged about 10 years at the time of incident, was taken away by the appellants-accused with the intention to commit rape on her, then there was no difficulty for them to satisfy their lust by committing sexual intercourse with the victim by over-powering her, as she was not in the position to put any resistance in the presence of three young persons and rape could easily be committed on her by the accused. With a view to restrain the victim from making a noise or cry, her mouth could be easily closed by one accused and other accused could commit rape on her. Admittedly no rape was committed on her. No other motive to commit the murder of victim by the appellants-accused has been brought on record by the prosecution. This fact, in our considered view, is certainly consistent with the innocence of the appellants-accused.
53. The learned AGA further submitted that there was no reason for the witnesses Abdul Halim and Amir Ahmad to falsely implicate the appellants-accused in this heinous crime, because there was no enmity of these witnesses with the accused. It is true that the accused persons have not led any evidence to show that there was any enmity between them and the witnesses Abdul Halim and Amir Ahmad, but merely on this ground inference of guilt cannot be drawn on the basis of the testimony of these witnesses, because as mentioned above, their testimony is wholly unreliable. In a criminal trial it is not always possible for the accused to establish as to why he has been falsely implicated in the case. Just as the prosecution does not sometime succeed to prove the motive on the part of the accused to commit the crime, in the like manner sometimes the accused also is not in a position 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 Hon'ble Apex Court in the case of Shankarala Gyarsi Lal Dixit v. 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 ne 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 appellants name was not mentioned to the police until quite late. These are questions for the Court to consider.
54. Therefore, merely because the accused have not led any evidence to show any enmity between them and the witnesses Abdul Halim and Amir Ahmad, it cannot be said that these witnesses cannot tell lie. We have already held that the testimony of these witnesses about the alleged incident which is said to have been witnessed by them on 13.09.2000 near the rajwaha is wholly unreliable, because being present in kasba Kithore on 15.09.2000 as is evident from their statements recorded under Section 161 Cr.P.C., even after recovery of the dead body of the victim in the morning of 15.09.2000 in the sugar-cane field of Intzar, they remained silent and did not disclose this fact to the brother and father of the victim or any other person, which makes their testimony unworthy of reliance.
55. It is settled principle of law that burden to prove its case beyond reasonable doubt is always on the prosecution and any weakness of defence case will not help the prosecution in bring home the guilt to the accused. Therefore, in the instant case also, the appellants-accused cannot be held guilty merely because they have not been able to show any enmity between them and the witnesses Abdul Halim and Amir Ahmad. The unfortunate girl fell victim to the inhuman and barbaric acts of some anti-social elements and her death is shrouded in mystery. It has come in the statement of P.W. 2 Abdul Haleem at page 22 of the paper book that he had told Daroga Ji (Investigating Officer) that the accused persons used to joke and laugh with Rizwana at the tea stall of her father. It appears that after the dead body of the victim was found lying in the sugar-cane field of Intzar in the morning on 15.09.2000, the previous conduct of appellants-accused joking and laughing with the victim appears to have created suspicion in the minds of the people that these accused might have committed murder of the deceased after remaining unsuccessful in committing rape on her and due to that suspicion, the false story of seeing the victim and the accused together on 13.09.2000 at about 1.30 p.m. at razwaha and carrying her by the accused inside the sugar-cane field of Intzar on the pretext of getting the empty containers returned to her from Adil and thereafter seeing them coming out from that field in a perplexed condition at about 21/2-3.00 p.m. appears to have been invented by the police with the help of the got-up witnesses Abdul Halim and Amir Ahmad, who unsuccessfully tried to support that false story in the trial court in their deposition.
56. It is a well settled principle of criminal jurisprudence that suspicion howsoever strong can not take the place of proof. The learned trial court has not properly appreciated the evidence of witnesses and the conviction of the appellants-accused has been recorded merely on the basis of the testimony of the witnesses Abdul Halim and Amir Ahmad, which is not worthy of credence for the reasons which we have mentioned above. While appreciating evidence in a criminal trial, the paramount consideration of the court is to ensure that miscarriage of justice is prevented. The miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of the innocent. Keeping in view this settled principles of law, we cannot uphold the trial court's judgment regarding conviction and sentence of the appellants-accused.
57. Some defects and irregularities of investigation were also brought to our notice by the learned Counsel for the appellants-accused. It was contended in this regard that although the names of the accused and witnesses have come to light on 17.09.2000 on the basis of the application Ext. Ka 3, but statements of the witnesses Abdul Halim and Amir Ahmad were recorded by the investigating officer after great delay on 23.09.2000 and since no explanation for this delay has been furnished by the investigating officer, hence the delay in examination of the witnesses is fatal to the prosecution. It was further submitted regarding the investigation that no site plan was prepared by the investigating officer after carrying the witnesses Abdul Halim and Amir Ahmad at the place of incident. Regarding the infirmities of the investigation, it is suffice to mention that due to faulty investigation, the case of the prosecution cannot be discarded, if otherwise the case is found to be true. The full Bench of this Court has held in the case of Gopal and Ors. v. State of U.P. 1999 (1) JIC 858 that weakness of investigation is no ground to reject the direct testimony of the prosecution witnesses. Reference in this regard may be made to the case of Ambika Prasad and Anr. v. State (Delhi Administration) (2000) 2 SCC 646 also, in which Hon'ble Apex Court has held that negligence of investigating officer should not result in acquittal of the accused, when prosecution case is otherwise established. There are a number of rulings on this point, but no useful purpose would be served to burden this judgement by citing so many rulings, as it is a settled principle of law that if the evidence led by the prosecution is found reliable, then due to any weakness of the investigation or laches/ negligence on the part of the investigating officer, the prosecution case cannot be discarded.
58. For the reasons mentioned herein-above both the appeals are allowed. The impugned judgment and order are set aside and the appellants-accused Adil, Irfan and Abdul Tahir are hereby acquitted of the offences with which they have been charged in case crime No. 357/2000 of P.S. Kithore, District Meerut. They shall be set at liberty, if not required to be detained in jail for some other case.
Capital sentence reference for confirmation of the death sentence is rejected.
The office is directed to send a copy of this judgment immediately along with lower court record to the trial court concerned for necessary action.