(RESERVED) Case :- CRIMINAL APPEAL No. - 6039 of 2010 Appellant :- Mohd. Aslam Respondent :- State Of U.P.
Counsel for Appellant :- Gaurav Kakkar,H.C.Mishra,Manish Tiwary,N.D.Rai,Raj Kumar Tripathi Counsel for Respondent :- Govt. Advocate
Hon'ble Rajesh Dayal Khare,J. Hon'ble Rajiv Gupta,J.
Heard Sri N.D. Rai learned counsel for the appellant and the learned A.G.A. for the State.
Present appeal has been filed against the judgment and order of conviction dated 31.8.2010 passed by the Additional Sessions Judge (FTC) No.1 Saharanpur in Sessions Trial No. 336 of 2009 arising out of case crime No. 273 of 2009 under Sections 302, 201 IPC, police station Sadar Bazar, district Saharanpur whereby the appellant has been convicted and sentenced to undergo life imprisonment and to pay fine of Rs. 10000/- for the offence under Sections 302 IPC and in case of default in payment of fine to further undergo imprisonment of one year, to undergo rigorous imprisonment of three years and to pay fine of Rs. 5000/- for the offence under Section 201 IPC and in case of default of payment of fine to further undergo imprisonment of six months.
Learned counsel for the appellant contends that the alleged incident is said to have taken place on 24.4.2009 at 12.00 noon inside the house of the accused-appellant for which the first information report was lodged at police station Sadar Bazar district Saharanpur on 25.4.2009 itself at 06.05 a.m.. Pursuant to lodging of the F.I.R., investigation was carried out and after investigation, charge sheet was filed against the appellant and as the appellant pleaded not guilty, he was put to trial and after considering the facts and circumstances and after hearing the parties, the trial Court returned the verdict of conviction vide the judgment and order impugned which is under challenge in the present appeal.
Learned counsel for the appellant contends that as per the prosecution story, the appellant had moved an application before the concerned administration of Sadar Bazar, Saharanpur on 24.4.2009 stating therein that the appellant was married about a year back to one Yasmin but before that he had relations with the deceased Kamla who was a divorced lady but after the appellant's marriage with Yasmin, Kamla started threatening the appellant and demanding Rs. Two lacs and on the fateful day, Kamla came to the house of the appellant and started threatening the appellant that she would expose him and discredit him in the society unless he gives the money and started to pull the appellant outside the house, on account which the appellant committed the alleged offence by strangulating her and thereafter by cutting/slitting her throat and the dead body of the deceased was disposed of at night. First information report further states that as the appellant's conscious was racking, therefore, he came to the police station and has reported the incident. As many as nine prosecution witnesses were examined namely P.W.-1 and P.W.-2 Bobby and Jugnu brother of the deceased, P.W.-3 Deepak Grover who allegedly came to the house of the appellant to enquire about her whereabouts on the date of alleged incident, P.W.-4 and P.W.-5 Rajendra Panchal and Anil Panchal, witnesses of recovery, P.W-6 Rajesh Kumar who is alleged to be the husband of the deceased Kamla with whom she obtained divorce, P.W.-7 Dr. Keshaw Swami who conducted the Post Mortem of the deceased, P.W.-8 Dal Chand the Investigating Officer and P.W.-9 Ashok Kumar Head Moharrir.
Learned counsel for the appellant has drawn the attention of this Court to the recovery memo of Purse and Mobile phone of the deceased at page-6 of the paperbook, dead body of the deceased at page-8 of the paperbook, recovery of clothes of the deceased and Pass book at page-9 and recovery of knife at page-10 of the paperbook, recovery of blood stained pant of the accused from the washing machine at page-11 of the paperbook and has argued that recovery of purse and mobile, dead body of the deceased, clothes of the deceased as well as recovery of knife-weapon of assault is said to have been made from open place at the pointing out of the appellant, in which Bobby and Rajendra Panchal are witnesses. It is further contended that only recovery of the appellant's blood stained pant which is said to have been made from the house of the appellant in which again the witnesses are the same.
Learned counsel for the appellant has drawn the attention of this Court to the statement of the P.W.-1 Bobby-brother of the deceased and has contended that he has stated in his cross examination that recovery of clothes and mobile of the deceased was not made from the place where it is said to have been recovered at the pointing out of the appellant but the investigating officer has asked him to get these things from the house and hand it over to the police so that the same can be used against the appellant and reference has been drawn to page-18 of the paperbook. He has also referred to cross examination of the said witness at page-21 wherein it has been stated that the said witness has categorically stated that no Fard, which has been shown as Ex.1 ,2 and 3, were prepared in his presence and that the police had obtained his signatures on blank paper. Reference has also been made to page-35of the paperbook which is cross examination of the same witness and has stated that when the said witness had gone to the police on receiving information, the police asked him whether he was suspecting anybody who had committed the alleged offence, on which the appellant was apprehended from his house and was brought to the police station and when the police sought information from him, no information was given on account of which he was physically tortured and thereafter the said witness was asked to bring the personal items of the deceased from his house so that the same can be used against the appellant. The said witness has stated that no statement of any kind was recorded by the police. Learned counsel for the appellant contends that same statement has been repeated by the P.W.-2 second brother of the deceased and has referred to page-30 of the paperbook to show that even P.W.-2 had also stated that nothing was recovered in his presence and that the appellant was falsely implicated on account of existing animosity as the appellant was a Muslim and the deceased was Brahmin and the P.W.-1 and P.W.-2 did not want to continue with their relationship as it was giving them a bad name as has also been stated by P.W.-2 in his statement. Learned counsel for the appellant has again drawn the attention of this Court to the statement of P.W.-3 Deepak Grover, who is alleged to have come to the appellant's house to enquire about the deceased's whereabouts alongwith Rajesh her husband but it is contended that the said witness has categorically denied that he did not go to the appellant's house to make any enquiry.
Learned counsel has next drawn the attention of this Court to the statement of P.W.-4 and P.W.-5 Rajendra Panchal and Amit Panchal who are witness of recovery and has argued that the said witness have stated that no recovery was made in their presence nor any statement was given by them to the investigating officer and reference has also been drawn to the statement of P.W.-6 Rajesh Kumar, who is divorced husband of the deceased, wherein he has stated that he never knew the deceased nor the appellant nor he went to the appellant's house on 24.4.2009 to enquire about the deceased. Learned counsel for the appellant has next drawn the attention of this Court to the statement of the investigating officer P.W.-8 and has made special reference to page-46 wherein the I.O. has stated that he had not taken the statement of the witnesses and accused nor there was any public witness to the said statement recorded by him and therefore, it is argued that the investigation which has been done is totally faulty and cannot be relied upon. Learned counsel for the appellant has next contended that all the witnesses of fact from P.W.-1 to P.W.-7 have been declared hostile. Learned counsel has further drawn the attention of this Court to the report of Chemical Analyst which is on record and which shows that there were no blood stains either on the knife which is said to be the weapon of assault or on the cement which was taken from the bathroom of the appellant where the alleged offence is said to have been committed nor on the pant, which the appellant was wearing at the time of alleged offence which also shows that the prosecution story, as set up, is totally false. It is next contended that it is a case of circumstantial evidence and the appellant has been falsely implicated on the basis of confessional statement and that too has been obtained in police custody under coercion.
From the facts of the case, as has been detailed in the preceding paragraphs of this judgement, it is borne out that both the witnesses of fact, P.W. 1 and P.W. 2, Bobby and Jugnu, brother of the deceased did not support the prosecution version and were declared hostile. They had categorically stated in their cross-examination and examination-in-chief that recovery of clothes and mobile of the deceased was not made from the place where it is said to have been recovered at the pointing out of the appellant but the investigating officer has asked him to get these things from the house and hand it over to the police so that the same can be used against the appellant and that the police had obtained their signatures on blank paper. As per the prosecution, P.W.-3 Deepak Grover who is said to have gone to the house of the appellant to enquire about whereabouts of the deceased along with Rajesh Kumar and both these people had denied the aforesaid fact. The argument of the defence is that the recovery of articles of the deceased, the weapon of assault and recovery of the appellant's blood stained pant which are said to have been recovered from the house of the appellant, in which both the witnesses of recovery are same and further report of chemical analyst does not support the prosecution version, whereby he has reported that no blood stains either on the knife which is said to be the weapon of assault or on the cement which was taken from the bathroom of the appellant where the alleged offence is said to have been committed were found.
The present case is of a circumstantial evidence, in which motive was shown that the deceased, who was a divorced lady, was having relation with the appellant and when the appellant married one Yasmin, the deceased threatened the appellant that she would expose him and also demanded money and tried to pull the appellant outside the house, on account which the incident took place. The motive as shown that the deceased was Hindu and appellant is Muslim, therefore, P.W.1 and 2 were not happy with the said relation. Thus, it is argued on behalf of the defence that, the motive which was shown is extremely weak and the offence cannot be defined as heinous crime.
Learned A.G.A. has referred the judgment of Hon'ble Apex Court in the matter of Ranganayaki Vs. State by Inspector of Police reported in (2004) 12 SCC 521, in which Hon'ble Apex Court has held as under:-
"The motive for committing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of another. Motive is in the mind which impels a man to do a particular act. Such impulsion need not necessarily be proportionally grave to do grave crimes. Many murders have been committed without any known or prominent motive. It is quite possible that the aforesaid imputing factor would remain undiscovered."
Learned A.G.A. has also referred judgment of Hon'ble Apex Court in the matter of Thaman Kumar vs. State of Union Territory of Chandigarh reported in 2003 (47) ACC 7 (SC) wherein Hon'ble Apex Court has held as under:
"There is no principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trust- worthy and reliable and finds corroboration from the medical evidence, finding of guilt can safely be recorded even if the motive for the commission of the crime has not been provided."
However, considering the facts and circumstances of the case as well as evidence in totality it is borne out that evidence in the present case does not support the medical evidence on record, therefore, it cannot be said that motive of the present case is of no importance as has been argued by the defence.
In view of the discussions made above and after perusing the entire material on record as well as the judgment and conviction of the present case, this Court is of the considered view that the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt, therefore, impugned judgment and order dated 31.08.2010 passed by the Additional Sessions Judge (FTC) No.1 Saharanpur in Sessions Trial No. 336 of 2009 arising out of case crime No. 273 of 2009 under Sections 302, 201 IPC, police station Sadar Bazar, district Saharanpur cannot be sustained in the eye of law, accordingly, same is set aside.
The present appeal is, accordingly, allowed. If the appellant is in jail, he may be released forthwith if is not wanted in any other case. The lower court record alongwith copy of this judgement and order be transmitted to the lower court for compliance.
Order Date :- 31.5.2018 Ashish