In Chamber Reserved on 08.07.2019 Delivered on 26.07.2019
Case :- CRIMINAL APPEAL No. - 1512 of 2011 Appellant :- Shabbir Respondent :- State Of U.P.
Counsel for Appellant :-Janardan Prasad Tripathi, Dharmendra Singhal, S.Irfan Ali Counsel for Respondent :-Government Advocate
Hon'ble Ram Surat Ram (Maurya) ,J. Hon'ble Raj Beer Singh, J.
[Delivered by Ram Surat Ram (Maurya), J.]
1. Heard Sri Dharmendra Singhal, Senior Advocate, assisted by Sri Ankit Singhal, for the appellant and Sri Om Prakash, A.G.A., for State of U.P.
2. Shabbir has filed aforementioned appeal from the judgment of Additional Session's Judge, Court No. 11, Aligarh, dated 11.02.2011/ 15.02.2011, passed in S.T. No. 462 of 2010, State vs. Shabbir, [arising out of Case Crime No. 114 of 2010, under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as the IPC), Police Station Dehali Gate, district Aligarh, convicting the appellant, under Section 302 IPC and sentencing for imprisonment for life and fine of Rs. 5,000/-, with default stipulation.
3. On the written complaint (Ex-Ka-1) of Babu (PW-1), FIR (Ex-Ka-4) of Case Crime No. 114 of 2010 was registered under Section 302 IPC, at P.S. Dehali Gate, district Aligarh on 14.02.2010 at 23:45 hours, by Constable Clerk Om Prakash Chaturvedi (PW-5), against Shabbir. It has been stated in the FIR that there had been an aversion between Shabbir and Parveen (the son and the daughter-in-law of the informant). Today an altercation had taken place between his son and his wife Parveen. During altercation, his son Shabbir committed murder of his wife Parveen, cutting her neck through a knife at about 10:30 PM, in night. Dead body of Parveen was lying on the spot, in the house. After lodging the report, legal action be taken.
4. After lodging of FIR, SI Rajendra Singh (PW-8) started investigation. He copied the check FIR and G.D. entry in case diary and recorded statements of the informant and constable Om prakash Chaturvedi. He came on the spot and took blood stained floor and plain floor and prepared its recovery memo (Ex-Ka-2). He arrested the accused and took into possession his blood stained pant and prepared its recovery memo (Ex-Ka-3). He took into possession one knife from the room and prepared its recovery memo (Ex-Ka-11). He made spot inspection on the pointing out of the witnesses and prepared site-plan (Ex-Ka-12). He conducted Inquest (Ex-Ka-6) of the dead body on 15.02.2010 during 2:15 AM to 4:00 AM. He prepared photo lash, challan lash and letters to the authorities (Ex-Ka-7 to Ka-10) for conducting postmortem of the dead body and handed over the dead body to the constables Prem Kumar and Layak Ram, for taking the dead body up to mortuary. Dr. Santosh Kumar (PW-9) conducted autopsy of the dead body on 15.02.2010 at 4:00 PM and prepared Postmortem Report (Ex-Ka-13) in which following ante-mortem injuries were noted:-
(i) Lacerated wound of 5cm x 3cm at right forehead.
(ii) Incised wound of 5cm x 1cm x Trachea deep.
(iii) Trachea and neck vessels are cut.
In internal examination, Trachea and neck vessels were found cut. About 200 ml. pasty food was found in the small intestine.
In the opinion of the Doctor, cause of death was due to shock and hemorrhage, as a result of ante-mortem injury to the neck.
5. Thereafter, SHO Uday Veer Malik (PW-10) undertook investigation. He copied the recovery memo in case diary. He recorded statements of the Panches of Inquest on 27.02.2010. He recorded statements of Anis and Salim. He recorded statements of Fayyaz and Banne Khan (father and brother of the deceased) on 12.03.2010. He sent the recovered material to State Forensic Laboratory on 31.03.2010. After completion of investigation, he submitted charge sheet (Ex-Ka-14) against the accused on which cognizance was taken.
6. On committal, the case was registered as S.T. No. 462 of 2010. Additional Session's Judge framed charges on 24.06.2010, against the accused. The accused pleaded “not guilty” and claimed for trial. In order to prove the charges, the prosecution examined Babu (PW-1), the informant, Chhote (PW-2), the witness of recovery memo (Ex-Ka-2 and Ka-3), Shabuddin (PW-3), the Panch of Inquest (Ex-Ka-4), Banne Khan (PW-4) the witness of recovery memo (Ex-Ka-11) of knife, Om Prakash Chaturvedi (PW-5) to prove check FIR, Fayyaz (PW-6), the father of the deceased, Banne Khan (PW-7), the brother of the deceased, SI Rajendra Singh (PW-8) the first Investigating Officer, Dr. Santosh Kumar (PW-9), to prove Postmortem Report (Ex-Ka-13) and SI Uday Veer Singh (PW-10), second Investigating Officer and filed documentary evidence. Out of the aforesaid witnesses, Babu (PW-1), Chhote (PW-2) and Banne Khan (PW-4) did not support the prosecution story and were declared hostile.
7. All the incriminatory materials and facts were put to the accused, under Section 313 CrPC. He denied the evidence and materials and claimed false implication. He stated that on the date of incident, he was not in Aligarh.
8. Additional Session's Judge, after hearing the parties, by the impugned judgment held that there was prompt FIR of the incident, in which Shabbir was named as an accused by Babu (PW-1), who later on did not support the prosecution case, being father of the accused. Fayyaz and Banne Khan (PWs- 6 and 7) have proved that Shabbir was a habitual drinker and after drinking, he used to assault Parveen (the deceased). Previously, he had burnt Parveen for which her treatment was done at Medical College. SI Rajendra Singh (PW-8) has stated that he had arrested Shabbir on 15.02.2010 at 5:30 AM, from a place near the police outpost Shahjamal. After arrest he took into possession the blood stained pant (Ex-Ka-3) of Shabbir. On the pointing out of Shabbir, the knife (Ex-Ka-11) was recovered from underneath the bed of the accused. There is no reason to disbelieve the statements of SI Rajendra Singh (PW-8). There was clerical mistake in respect of date of recovery memo (Ex-Ka-3). On these findings, he convicted the appellant and sentenced as mentioned above. Hence, this appeal has been filed.
9. We have considered the arguments of the counsel for the parties and examined the record. There is no direct evidence to prove the charges, rather the case is based upon circumstantial evidence. From the evidence on record, it is proved that Smt. Parveen was murdered on 14.02.2010 at 22:30 hours, in the house of the accused at mohalla Mahfoojnagar. It is alleged that on the written complaint of Babu (PW-1), FIR of the incident was lodged at the police station on 14.02.2010 at 23:45 hours. Babu (PW-1) has stated that Smt. Parveen was married to his son Shabbir, 10-12 years prior to the incident. From their marital relation, three sons and two daughters were born to Smt. Parveen. Shabbir was residing at mohalla Mahfoojnagar, while he was residing at Shahjamal, which was at a distance of about one kilometer. He was at his house at Shahjamal on the date of incident and Shabbir had gone to Etah. He received an information that his daughter-in-law was murdered. The police called him at the police station, where he had seen her dead body. After that the prosecution declared him hostile and cross- examined him.
In cross-examination, Babu has admitted his thumb impression on his written complaint (Ex-Ka-1) but stated that the police had obtained his thumb impression on a blank papers, which were utilized for preparing written complaint. He disowned the contents of written complaint and FIR, being written on his dictation. He stated that Shabbir and his wife had good relation. The police called him from his house and took him to the house of Shabbir at about 4:00 AM.
Babu (PW-1) has stated that he was residing at mohalla Shahjamal and Shabbir was residing at mohalla Mahfoojnagar, along with his wife and children. Distance between the two places was one kilometer. This fact could not be controverted by the prosecution. Babu (PW-1) was residing at a different place, as such his presence at the place of incident at 10:30 PM was not probable. Even if he has admitted his thumb impression on written complaint (Ex-Ka-1), the facts mentioned in it cannot be taken to be true, as he was not present on the spot. There is no evidence on the record to prove that the accused was present at his house at 10:30 PM on 14.02.2010.
10. So far as recovery of blood stained pant (Ex-Ka-3) and knife (Ex-Ka- 11) is concerned, SI Rajendra Singh (PW-8) has stated that he had arrested the accused on 15.02.2010 at 5:30 AM, from a place near the police outpost Shahjamal and took into possession his blood stained pant and prepared its recovery memo (Ex-Ka-3). He took into possession one knife at about 6:30 AM from the room and prepared its recovery memo (Ex-Ka-11). He took blood stained floor and plain floor and prepared its recovery memo (Ex-Ka- 2). In none of these recovery memos, he had mentioned time of recovery. In Ex-Ka-2 and Ka-3, on the top, date "14.02.2010" was mentioned, but below his signatures, the date "15.02.2010' was mentioned. In both these recovery memo, Chhote and Anis were witnesses. In recovery memo (Ex-Ka-11) on the top and below his signature, "dated 15.02.2010" has been mentioned and Suleman and Banne Khan were witnesses. Chhote (PW-2) did not prove recovery of blood stained pant (Ex-Ka-3). Banne Khan (PW-4) did not prove recovery of knife (Ex-Ka-11) before them. The police has not recorded disclosure statement of Shabbir which was necessary for recovery. From the report of State Forensic Laboratory dated 20.12.2010, it was not proved that the blood stains on knife and pant were human blood. Recovery of blood stained knife and pant was not proved beyond reasonable doubts.
11. So far as, statements of Fayyaj and Banne Khan (PW-6 and 7) are concerned, they did not claim to be eye witnesses. They admitted that after receiving information of murder of Parveen, they came to the place of incident, in morning on 15.02.2010. They admitted that the deceased Parveen had five children (three sons and two daughters) from her marital relation. Although, they have stated that Shabbir was a habitual drinker, after drinking he used to assault the deceased and at one time, he had attempted to burn her, for which, she was treated at medical college. But they admitted that no complaint regarding assault/burn was made. They could not file any paper relating to treatment of the deceased after alleged burn.
12. Supreme Court in Satish Nirankari v. State of Rajasthan, (2017) 8 SCC 497, has held that it is now well established, by a catena of judgments of this Court, that circumstantial evidence of the following character needs to be fully established:
(i) Circumstances should be fully proved.
(ii) Circumstances should be conclusive in nature.
(iii) All the facts established should be consistent only with the hypothesis of guilt.
(iv) The circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused (see State of U.P. v.
Ravindra Prakash Mittal, (1992) 3 SCC 300; Chandrakant Chimanlal Desai v. State of Gujarat, (1992) 1 SCC 473). It also needs to be emphasised that what is required is not the quantitative, but qualitative, reliable and probable circumstances to complete the claim connecting the accused with the crime. Suspicion, however grave, cannot take place of legal proof. In the case of circumstantial evidence, the influence of guilt can be justified only when all the incriminating facts and circumstances are found to be not compatible with the innocence of the accused or the guilt of any other person.
13. So far as the presumption under Section 103 and 106 of Evidence Act, 1872 is concerned, Supreme Court in Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404, dealing with the interpretation of Section 106 of the Evidence Act has held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well-nigh impossible or extremely difficult for the prosecution to prove that fact. Section 101 lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are ‘especially’ within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word ‘especially’ stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.
This judgment has been followed by Supreme Court in Vikramjit Singh @ Vikki Vs. State of Punjab, (2006) 12 SCC 306, Prithipal Singh Vs. State of Punjab, (2012)1 SCC 10, State of Rajasthan v. Thakur Singh, (2014) 12 SCC 211 and Joyeb Patra Vs. State of W.B, (2014) 12 SCC 444.
14. In view of the aforesaid discussions, the appeal succeeds and is allowed. Conviction and sentence of the appellant, passed by Additional Session's Judge, Court No. 11, Aligarh, dated 11.02.2011/ 15.02.2011, passed in S.T. No. 462 of 2010, State vs. Shabbir, [arising out of Case Crime No. 114 of 2010, under Section 302 IPC, Police Station Dehali Gate, district Aligarh, is set aside. The appellant shall be released from jail forth with.
Order Date :- 26.7.2019 Jaideep/-
[Raj Beer Singh,J.] [ Ram Surat Ram (Maurya),J.].