Munawwar vs The State Of Uttar Pradesh

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELATE JURISDICTION

CRIMINAL APPEAL NO. 1211 OF 2014

MUNAWWAR ….. APPELLANT(S)

VERSUS

STATE OF UTTAR PRADESH ….. RESPONDENT(S)

JUDGMENT

SANJIV KHANNA, J.

The sole appellant, Munawwar, in this appeal assails his

conviction for murder and kidnapping of a seven-year old boy, ‘X’

under Sections 302 and 365 read with Section 34 of the Indian

Penal Code, 1860 (for short, ‘IPC’) as also causing disappearance

of evidence of offence under Section 201 read with Section 34

IPC. The appellant stands sentenced to undergo imprisonment

for life, seven years and three years rigorous imprisonment

respectively, which sentences, it is directed, shall run concurrently

(no separate sentence for fine has been imposed but we are not Signature Not Verified commenting and examining this aspect in the present appeal and Digitally signed by R NATARAJAN Date: 2019.07.20 11:26:14 IST Reason: judgment).

Criminal Appeal No. 1211 of 2014 Page 1 of 9

2. Learned counsel for the appellant has submitted that the principle

of last seen has been wrongly invoked, for even if the Court were

to accept the testimony of Mohd. Sayeed (PW-2), Ashraf (PW-3),

Sayeed Ahmed (PW-5), and Mustak (PW-7), ‘X’ was last seen in

the company of the appellant, along with the appellant’s brothers

Noor Mohammad, Tahir (since deceased) and a third person

Shamim, at Laddawala, Muzaffarnagar, Uttar Pradesh on April 01,

1988, whereas two ransom notes were purportedly received by

Mohd. Khurshid (PW-1), father of ‘X’, on April 03, 1988 and April

07, 1988, and subsequently, ‘X’s dead body was exhumed at a

different location on April 18, 1988. Reference was made to

Jaswant Gir vs. State of Punjab 1 and State of Goa vs. Sanjay

Thakran & Another2. The appellant also submitted that there was

a delay in recording the First Information Report (FIR) under

Section 365 IPC, which, it was highlighted, was registered at

Police Station, Kotwali, Muzaffarnagar on April 07, 1988 at about

9:40 p.m.

3. We have considered the contentions but do not find any good

ground and reason to differ and upset concurrent finding of

conviction as recorded by the Additional District and Sessions

1 (2005) 12 SCC 438 2 (2007) 3 SCC 755 Criminal Appeal No. 1211 of 2014 Page 2 of 9 Judge vide judgment dated August 19, 1992 and in the impugned

judgment of the Allahabad High Court dated March 08, 2013.

4. Co-accused and convicts Noor Mohammad and Shamim have not

filed an appeal before this Court and Tahir as noticed above has

since died. Hence, we are examining and deciding the present

appeal preferred by Munawwar.

5. The fact that ‘X’, son of Mohd. Khurshid who has appeared as

PW-1, was kidnapped on April 01, 1988 and his dead body was

exhumed on the basis of the disclosure statement made by Noor

Mohammad on April 18, 1988 has been proved and established

beyond debate and doubt. It is also an accepted position that the

appellant-Munawwar, Noor Mohammad, Tahir (since deceased)

are brothers. Mohd. Khurshid (PW-1) in his deposition was lucid

that his seven-year old son, ‘X’, who had gone to a neighbourhood

shop on asking of his mother to purchase dal at about 4 p.m. on

April 01, 1988 did not return and was untraceable. PW-1, who

was working in the Tehsil, on return from work had searched and

looked desperately for ‘X’ but without success. Upon enquiring in

the neighbourhood, PW-1 had learnt that ‘X’ was last seen with

Noor Mohammad at the shop of Ashraf, as told to him by Ashraf

who had deposed as PW-3 and confirmed the fact. Mohd. Criminal Appeal No. 1211 of 2014 Page 3 of 9 Khurshid (PW-1) had also spoken to Mohd. Sayeed (PW-2), who

was standing a few feet away from the shop of Ashraf (PW-3), and

had seen ‘X’ with the appellant- Munawwar, Noor Mohammad,

Tahir (since deceased) and Shamim who had taken ‘X’ with them

on foot towards Sultan Industries. This narration was affirmed by

Mohd. Sayeed (PW-2), who had seen ‘X’ in the lap of Noor

Mohammad as they had moved out of the shop to the road where

the appellant-Munawwar, Tahir (since deceased) and Shamim

were present. Mohd. Sayeed (PW-2) had also testified that the

accused were maternal uncles of ‘X’ and they would daily take ‘X’

for a walk and get things for him to eat. Therefore, PW-2 had no

reason to suspect and did not deem it proper to intervene. PW-2

has confirmed his interaction with PW-1 in the evening when PW-

1 had made enquiries about his son.

6. We have the testimony of Mustak (PW-7), who has stated that he

knew ‘X’, son of Mohd. Khurshid (PW-1), who were residing in the

same mohalla. On April 01,1988 at about 5 p.m. PW-7 had

returned from Devband by bus. While proceeding towards

Laddawala, PW-7 had seen ‘X’ with the appellant- Munawwar,

Noor Mohammad, Tahir (since deceased) and Shamim, who were

taking him towards the hill. He had not objected because he knew

Criminal Appeal No. 1211 of 2014 Page 4 of 9 that the persons were relatives of ‘X’ and had thought that they

were possibly taking him for a walk.

7. Mohd. Khurshid (PW-1) has deposed that on April 03,1988 he had

received ransom letter (Ext. 1) for payment of Rs. 21,000/- for safe

release of ‘X’. Money was to be paid at the railway bridge.

Thereupon, PW-1 had proceeded to the house of the appellant

Munawwar and his brothers and had met Tahir (since deceased)

and had informed him about the ransom note and enquired if he

could tell him his son’s whereabouts. Tahir (since deceased) had

thereupon asked PW-1 to arrange for the money and to write a

letter seeking 2-3 days’ time to make payment. Several other

persons, including Kallu, were present with PW-1 at that time. On

the request of Tahir (since deceased), PW-1 had written a letter

and gave it to Tahir (since deceased) asking for 2-3 days’ time to

arrange for money. The aforesaid factum has been proved and

also testified by Sayeed Ahmad (PW-5) who was present with PW-

1 when the latter had spoken to Tahir (since deceased) about ‘X’

and the ransom note, and wrote the letter requesting for extension

of time to make the payment. On April 05, 1988, Tahir (since

deceased) had informed PW-1 that the letter had reached the

persons and they had given PW-1 time to arrange money.

Criminal Appeal No. 1211 of 2014 Page 5 of 9

8. Mohd. Khurshid (PW-1) has also testified about the second

ransom letter (Ext. 2) for payment of Rs. 22,000/- which was

thrown in his house by Shamim, one of the accused, an act which

was seen by Islam (PW-4) and Sayeed Ahmad (PW-5) who had

tried to apprehend and catch Shamim but were unsuccessful as

Shamim had managed to run away. Islam (PW-4) had also

testified that ‘X’ was missing and this fact was known to the entire

neighbourhood.

9. After receipt of the second ransom note, Mohd. Khurshid (PW-1)

had proceeded to lodge the police report/complaint vide Exhibit

KA-1. PW-1 had testified that upon submitting the scribed report,

the police report was made and read out to him, and having

understood the contents, he had put his signatures. Explaining the

reason for the delay in filing the FIR, PW-1 had elucidated that he

was arranging the money and perceiving danger and threat to the

life of ‘X’, he did not initially lodge a police report. Further, till the

second ransom note was thrown by one of the accused Shamim,

PW-1 was uncertain on whether or not Tahir (since deceased) was

trying to mislead him and also on participation and involvement of

the appellant and his brothers. PW-1 has also spoken about his

relation with the accused Shamim. Khalil who was uncle of his

wife was the brother-in-law of the accused Shamim, a fact stated Criminal Appeal No. 1211 of 2014 Page 6 of 9 by PW-1 in the cross-examination but not controverted or put for

denial.

10. Equally important is the evidence of recovery of the dead body of

‘X’ pursuant to the disclosure statement made by Noor

Mohammad upon his arrest on April 18, 1988. Noor Mohammad

had thereupon taken the police and PW-1 and others to Bajheri

jungle and the tube well of Irshad @ Yaseen and had shown the

place where the dead body of ‘X’, his clothes and the knife by

which he was killed had been buried in a ditch. Thereupon, after

digging earth, the dead body of ‘X’ was exhumed, and his clothes

and the knife were recovered vide Memo, Exhibit KA-2. PW-1 had

identified the dead body of his son ‘X’ by looking at his face.

Recovery of dead body of ‘X’ at the instance of Noor Mohammad

is a fact also affirmed by Mustak (PW-7) and Police Sub-Inspector

Raj Kishor Singh (PW-11).

11. The present case would not in a strict sense be a case of mere

‘last seen’. ‘X’ was kidnapped at about 4:00 p.m. on April 01,

1988 when he was seen in the custody of the present appellant,

Noor Mohammad, Tahir (since deceased) and Shamim near the

shop of Ashraf (PW-3). ‘X’ was a young boy, seven years in age,

who was close to and friendly with the appellant-Munawwar, his

Criminal Appeal No. 1211 of 2014 Page 7 of 9 brothers namely Noor Mohammad and Tahir (since deceased) and

also knew Shamim who was living in the neighbourhood. The

factum that ‘X’ was kidnapped on April 01, 1988 at about 4:00 –

4:30 p.m. has been established and proved beyond doubt. The

identity of the kidnappers which includes the present appellant has

also been established. Reliance placed on the two judgments

relating to the “last seen” principle vide Jaswant Gir vs. State of

Punjab (supra) and State of Goa vs. Sanjay Thakran & Another

(supra) would not support the submissions on behalf of the

appellant, for, in the present case, there is direct evidence in the

form of ocular testimonies, as discussed above, which establish

that the present appellant and others had kidnapped and had held

their captivity. Further, there was no time gap or interregnum

between ‘X’s disappearance and kidnapping; they were

simultaneous. Subsequent evidence, including the conduct of

Shamim, who had thrown the second ransom note, and Noor

Mohammad, who had given the disclosure statement leading to

recovery of the dead body, would implicate and establish the

charge and the case of the prosecution.

12. Hence, we do not find any merit in the present appeal and we

affirm the judgment of the High Court accepting the judgment of

the Additional Sessions Judge convicting the appellant- Criminal Appeal No. 1211 of 2014 Page 8 of 9 Munawwar under Sections 302, 365 and 201 read with Section 34

of the IPC. The appeal has no merit and is dismissed.

......................................J. (INDIRA BANERJEE)

......................................J. (SANJIV KHANNA) NEW DELHI;

July 16, 2019.

Criminal Appeal No. 1211 of 2014 Page 9 of 9