Mustkeem @ Sirajudeen vs State Of Rajasthan

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1327 OF 2008

Mustkeem @ Sirajudeen ....Appellant

Versus

State of Rajasthan ....Respondent

WITH

Criminal Appeal No.1369/2008; and

Criminal Appeal No.1370/2008

J U D G M E N T

Deepak Verma, J.

1. This judgment and order shall govern disposal of

Crl. A. No. 1369 of 2008 Nandu Singh @ Vikram

Singh Vs. State of Rajasthan and Crl. A.No. 1370

of 2008 Arun Joseph Vs. State of Rajasthan as

they arise out of the common judgment and order

recorded by Division Bench of the High Court of

Judicature for Rajasthan, Bench at Jaipur in D.B.

Crl. A. No. 1327 of 2008 2

Criminal Appeal No. 125/2005, 210/2005 and

1176/2005 decided on 03.12.2007, arising out of

judgment and order of conviction recorded by

Special Judge SC/ST (PA Cases) Jaipur in Sessions

Case No. 02/2004 decided on 10.02.2005.

2. The trial court vide its judgment and order held

the Appellants guilty for commission of offence

under Section 302/34 of the Indian Penal Code (in

short 'IPC') and awarded life imprisonment with

fine of Rs. 1000/- and in default of payment of

fine further three months simple imprisonment and

under Section 4/25 of the Arms Act one year R.I.

and fine of Rs. 500/- and in default of payment

of fine to further suffer one month imprisonment.

The sentences were directed to run concurrently.

3. Feeling aggrieved by the said judgment,

Appellants had preferred three appeals as

mentioned hereinabove before the Division Bench

of the High Court of Judicature for Rajasthan at

Crl. A. No. 1327 of 2008 3

Jaipur Bench. The High Court, after considering

the matter from all angles also came to the

conclusion that no interference was called for

against the said judgment of the trial Court and

dismissed the appeals. In all, there were five

accused out of which one Abrar was declared

absconder and Abdul Wahid was acquitted by the

Trial Court. Thus these appeals by the three

convicted accused.

4. We have, accordingly, heard learned Counsel Mr.

R.K. Kapoor, Ms. Shweta Kapoor, Mrs. Mansi Dhiman

for the Appellants and Mr. Milind Kumar, Mr.

Imtiaz Ahmeda and Ms. Archana Pathak Dave for the

Respondent State and perused the record.

5. Facts giving rise to the prosecution story,

ultimately resulting in conviction of the

Appellants, are as under:-

Crl. A. No. 1327 of 2008 4 On 24.07.2003 at 5.45 p.m. Diwakar Chaturvedi

SHO Police Station Vidhan Sabha, Jaipur received

telephonic information about murder of a person in

Kathputli Colony. After recording the said

information in Rojnamcha, SHO rushed to the spot

with police squad and found a person lying dead in

a pool of blood.

6. On inquiries being made P.W.3 - Ashok Kumar,

present at the place of occurrence informed

Diwakar that the name of the deceased was Ram Pal

Yadav. He further informed that the murder of Ram

Pal Yadav has been caused by Mustkeem, Nandu and

one other person by inflicting injuries on his

person with sword and knife. The third person

was later identified as Arun Joseph. On receiving

the said information SHO recorded the Parcha

Bayan of P.W.3 - Ashok Kumar and registered a

case under Section 302/120B of the IPC. Thus the

investigation machinery was set into motion. Dead

Crl. A. No. 1327 of 2008 5

body was sent for autopsy, necessary memos were

drawn, statements of witnesses were recorded,

accused were arrested and on completion of

investigation charge sheet was filed.

7. Charges under Section 302/149 IPC and Section

4/25 of the Arms Act were framed against the

accused. They denied the charges and prayed for

being tried. The prosecution in support of its

case examined 19 witnesses. The statements of the

Appellants under Section 313 of Cr. P.C. were

recorded, who claimed innocence and prayed for

their acquittal.

8. As per the post mortem report Ex. P.34, deceased

Ram Pal Yadav had received 38 ante mortem

injuries and from the evidence of P.W.13 - Dr.

Sumant Dutta, cause of death was stated to be due

to hemorrhagic shock as a result of injuries to

chest, lungs and skull and on account of

excessive bleeding. In the light of the Post

Crl. A. No. 1327 of 2008 6

Mortem Report and the evidence of P.W.13 - Dr.

Sumant Dutta, it cannot be disputed nor has been

disputed before us that deceased had met with

homicidal death.

9. Now the question that arises for our

consideration in this and the connected appeals

is as to who were the perpetrators of the crime

and whether the trial Court and High Court were

justified in holding the appellants guilty for

commission of the said offences.

10.Before we proceed to do so it is necessary to

point out that the solitary star witness of the

prosecution P.W.3 - Ashok Kumar had turned

hostile and was declared as such.

11.In fact, it is pertinent to mention here that

the main material witnesses were declared

hostile. The Trial Court observed in this context

that P.W.1 Mohd. Ayub (recovery witness), P.W.3

Crl. A. No. 1327 of 2008 7

Ashok Kumar and P.W.2 Prakash (both eye-

witnesses) had retracted their statements made

under Section 161 Cr.P.C. during examination.

Furthermore, it has also refused to attach much

credence to the deposition of P.W.19 Yogesh

Kumar, owing to the clear contradictions in his

statement and aforesaid deposition regarding his

presence at the scene of crime. Thus, in a

nutshell, Trial Court had also found them

unreliable and has not based the Appellants

conviction on the basis of their statements.

Similarly High Court has not taken their evidence

into consideration. Thus, it is neither required

nor is necessary to deal with their evidence.

Trial Court had recorded a finding that the case

is without any eye witness and is based on

circumstantial evidence.

12.It is therefore necessary to discuss the

evidence of P.W.8 - Smt. Supyar Kanwar, P.W.9 -

Crl. A. No. 1327 of 2008 8 Lali Devi and P.W.10 - Chittar so as to find out

the element of truth in the same and to discern

any motive behind the commission of the offence.

13.It is fully established that the prosecution

case is based on circumstantial evidence. In this

view of the matter, we have to see if the chain

of circumstances was so complete so as to

unerringly point the finger only at the

Appellants as perpetrators of crime. Before

delving into the legal analysis, however, we

would like to examine the statements of P.W.8 and

P.W.10 in brief.

14.As per the prosecution story, Appellants

Mustkeem and Arun had met P.W.10 - Chittar a day

before the occurrence, in whose house deceased

Ram Pal Yadav, was residing as a tenant, for

last 5 to 6 years and he deposed that Appellants

Mustkeem and Arun had told him that, that day

it would be the last visit of Ram Pal and he

Crl. A. No. 1327 of 2008 9

will not come to his house again. Similar is the

evidence of P.W.9 - Lali Devi, wife of P.W.10.

She has repeated the same version as had been

deposed by P.W.10- Chittar.

15. P.W.8 - Smt. Supyar deposed that Mustkeem, Arun

and Nandu used to visit Ram Pal Yadav regularly

as all of them were dealing in illicit liquor

trade. On coming to know from Lali Devi that

Arun, Mustkeem and Nandu were keen to eliminate

Ram Pal Yadav, she had telephonically asked him

to meet her at the earliest. When deceased Ram

Pal Yadav met Smt. Supyar, she informed him about

the intentions of the accused. She also told him

that Arun and Mustkeem both had said that it

would be the last visit of Ram Pal Yadav to her

house as they were planning to eliminate him.

16.Thus, from an appraisal of the evidence of

P.W.8, P.W.9 and P.W.10, the Trial Court and the

Division Bench of the High Court ruled that

Crl. A. No. 1327 of 2008 10

prosecution has been able to establish that

deceased Ram Pal Yadav and Appellants were all

involved in illegal trade of liquor and a day

prior to the date of incident, Arun and Mustkeem

had expressed their intentions to eliminate Ram

Pal to P.W.9 and P.W.10.

17.High Court while considering the Appellants'

appeal found this factor as one of the

incriminating circumstances to eventually hold

the Appellants guilty for the aforesaid offence.

18. The other circumstance found against the

Appellants by High Court was that, on the basis

of the disclosure statements of the Appellants,

weapons alleged to be used in the commission of

offence and clothes stained with human blood

were recovered. In its Judgment, the High Court

has discussed in extenso the effect of Section

27 of the Indian Evidence Act (hereinafter shall

Crl. A. No. 1327 of 2008 11

be referred to as 'Act') and subsequent

discovery of the material objects thereafter.

19.On the basis of the report of the serologist, it

has come on record that traces of AB blood group

were found on the pants and baniyan of the

deceased. The prosecution has also averred that

Sword and clothes stained with human blood group

AB were also recovered at the instance of

Appellants, from the places shown by them and

known only to them and none others. On account of

aforesaid circumstances, the High Court was of

the opinion that the chain of circumstances was

complete and the completed chain of circumstances

pointed the finger for commission of the said

offence only by the Appellants.

20. As regards the motive (if any) behind the

homicide, on review of the relevant deposition

of the witnesses, we are of the opinion that one

of the circumstances found against the present

Crl. A. No. 1327 of 2008 12

Appellants, that deceased and Appellants

indulged in illegal trade of liquor and thus

were having enmity with each other, is not based

on any cogent and reliable evidence much less on

the evidence of P.W.8, P.W.9 and P.W.10. This

could not have been the motive of killing Ram

Pal.

21.In fact, the omissions on the part of all three

witnesses namely, P.W.8, P.W.9 and P.W. 10 to

state certain material facts in the course of

making their statements before the police, which

they have categorically admitted in their

depositions may even be considered as

"contradictions" as per the Explanation to

Section 162 of the Cr.P.C.

22. Their evidence, that they had intimated P.W.8 a

day prior to the date of incident, that they would

eliminate Ram Pal is also not trustworthy. On

account of several discrepancies appearing in their

Crl. A. No. 1327 of 2008 13

evidence, P.W.8 is absolutely an hearsay witness

which is borne out from their evidence. Similarly

the evidence of P.W.9 and P.W.10 does not establish

the intention on the part of the accused to murder

Ram Prasad. Since no enmity could be established on

record between them there was nothing which

warranted to eliminate Ram Pal.

23. The AB blood group which was found on the

clothes of the deceased does not by itself

establish the guilt of the Appellant unless the

same was connected with the murder of deceased by

the Appellants. None of the witnesses examined by

the prosecution could establish that fact. The

blood found on the sword recovered at the instance

of the Mustkeem was not sufficient for test as the

same had already disintegrated. At any rate, due

to the reasons elaborated in the following

paragraphs, the fact that the traces of blood found

on the deceased matched those found on the

Crl. A. No. 1327 of 2008 14

recovered weapons cannot ipso facto enable us to

arrive at the conclusion that the latter were used

for the murder.

24. In fact, the recovery of the weapons on

disclosure of the Appellants itself becomes

doubtful. The witness of Recovery Memo P.W.1 -

Mohd. Ayub Khan was declared hostile and another

witness P.W.10 - Chittar admitted that signatures

were obtained on the memos and annexures at the

Police Station itself. It is also pertinent to

mention here that P.W.1 - Mohd. Ayub Khan was

residing 4 Kms. away from the place of recovery and

P.W.10 - Chittar was residing 8 Kms. away from the

place of recovery and were also declared hostile.

Prosecution failed to establish as to why none of

the local persons were called to be the witnesses.

The conduct of the prosecution appears to be

extremely doubtful and renders the case as

concocted, to falsely implicate the Appellants.

Crl. A. No. 1327 of 2008 15 Recovery Memos also reflect that there were

overwriting on the same which has not been

explained by P.W.16 - Diwakar Chaturvedi

(Investigating Officer). He admitted that memos and

annexures were prepared in his own handwriting but

also admitted in his cross examination that the

same were in a different handwriting. This lacuna

should have been explained by the prosecution more

so when the whole case rested only on

circumstantial evidence. Thus looking to the matter

from all angles we are of the considered opinion

that it would not be safe and proper to hold the

Appellants guilty for commission of offence.

25. It is too well settled in law that where the

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. No doubt,

Crl. A. No. 1327 of 2008 16

it is true that conviction can be based solely on

circumstantial evidence but it should be decided on

the touchstone of law relating to circumstantial

evidence, which has been well settled by law by

this Court.

26. In a most celebrated case of this Court

reported in 1984 (4) SCC 116 Sharad Birdhichand

Sarda Vs. State of Maharashtra in para 153, some

cardinal principles regarding the appreciation of

circumstantial evidence have been postulated.

Whenever the case is based on circumstantial

evidence following features are required to be

complied with. It would be beneficial to repeat the

same salient features once again which are as

under:-

"(i) The circumstances from which the

conclusion of guilt is to be drawn must

or should be and not merely 'may be'

fully established,

(ii) The facts so established should be

consistent only with the hypothesis of

Crl. A. No. 1327 of 2008 17

the guilt of the accused, that is to say,

they should not be explainable on any

other hypothesis except that the accused

is guilty,

(iii) The circumstances should be of a

conclusive nature and tendency,

(iv) They should exclude every possible

hypothesis except the one to be proved,

and

(v) There must be a chain of evidence so

complete as not to leave any reasonable

ground for the conclusion consistent with

the innocence of the accused and must

show that in all human probability the

act must have been done by the

accused".

27. With regard to Section 27 of the Act, what is

important is discovery of the material object at

the disclosure of the accused but such disclosure

alone would not automatically lead to the

conclusion that the offence was also committed by

the accused. In fact, thereafter, burden lies on

the prosecution to establish a close link between

discovery of the material objects and its use in

the commission of the offence. What is admissible

Crl. A. No. 1327 of 2008 18

under Section 27 of the Act is the information

leading to discovery and not any opinion formed on

it by the prosecution.

28. If the recovery memos were prepared at the

Police Station itself then the same would lose its

sanctity as held by this Court in Varun Chaudhary

Vs. State of Rajasthan reported in AIR 2011 SCC 72.

29. The scope and ambit of Section 27 were also

illuminatingly stated in AIR 1947 PC 67 Pulukuri

Kotayya & Ors. Vs. Emperor reproduced

hereinbelow:-

"...it is fallacious to treat the 'fact

discovered' within the section as equivalent

to the object produced; the fact discovered

embraces the place from which the object is

produced and the knowledge of the accused as

to this, and the information given must

relate distinctly to this fact. Information

as to past user, or the past history, of the

object produced is not related to its

discovery in the setting in which it is

discovered. Information supplied by a person

in custody that 'I will produce a knife

concealed in the roof of my house' does not

lead to the discovery of a knife; knives

Crl. A. No. 1327 of 2008 19

were discovered many years ago. It leads to

the discovery of the fact that a knife is

concealed in the house of the informant to

his knowledge, and if the knife is proved to

have been used in the commission of the

offence, the fact discovered is very

relevant. But if to the statement the words

be added 'with which I stabbed A' these

words are inadmissible since they do not

relate to the discovery of the knife in the

house of the informant."

The same were thereafter restated in

another judgment of this Court reported in 2004

(10) SCC 657 Anter Singh Vs. State of Rajasthan.

30. The doctrine of circumstantial evidence was

once again discussed and summarised in 2008 (3) SCC

210 Sattatiya @Satish Rajanna Kartalla Vs. State of

Maharashtra in the following terms:

"10. ..It is settled law that an offence

can be proved not only by direct evidence

but also by circumstantial evidence where

there is no direct evidence. The court

can draw an inference of guilt when all

the incriminating facts and circumstances

are found to be totally incompatible with

the innocence of the accused. Of course,

the circumstance from which an inference

as to the guilt is drawn have to be

Crl. A. No. 1327 of 2008 20

proved beyond reasonable doubt and have

to be shown to be closely connected with

the principal fact sought to be inferred

from those circumstances".

31. As regards scope of interference against

concurrent findings of fact, powers under Article

136 of the Constitution can be exercised, in the

manner described in para 14 of the aforesaid

judgment reproduced hereinbelow:-

"14. At this stage, we also deem it

proper to observe that in exercise of

power under Article 136 of the

Constitution, this Court will be

extremely loath to upset the judgment of

conviction which is confirmed in appeal.

However, if it is found that the

appreciation of evidence in a case,

which is entirely based on

circumstantial evidence, is vitiated by

serious errors and on that account

miscarriage of justice has been

occasioned, then the Court will

certainly interfere even with the

concurrent findings recorded by the

trial court and the High Court. [Bharat

Vs. State of M.P. 2003 (3) SCC 106] Crl. A. No. 1327 of 2008 21

32. After having discussed the entire evidence, we

have no doubt in our mind that the same is vitiated

by serious errors and if Appellant's conviction is

upheld then it would amount to miscarriage of

justice.

33. In the light of the aforesaid well settled

principles of law by several authorities of this

Court, we are of the opinion that the judgment and

order of conviction as recorded by Trial Court and

confirmed by High Court in Appellants appeals

cannot be sustained in law. The same are,

therefore, hereby set aside and quashed. Appeals

are allowed. Appellants are acquitted of the

charges levelled against them. The Appellants be

set at liberty, if not required in any other

criminal cases.

.....................J.

[ASOK KUMAR GANGULY]

Crl. A. No. 1327 of 2008 22

....................J.

[DEEPAK VERMA]

New Delhi

July 13, 2011