Wakkar & Anr vs State Of U.P

WAKKAR & ANR. ... APPLLANTS

VERSUS

THE STATE OF U.P. ... RESPONDENT

WITH

CRIMINAL APPEAL NO. 201 OF 2006

SHEIKH ZAKAULLAH ... APPELLANT

VERSUS

AKHLAQ & ORS. ... RESPONDENTS

WITH

CRIMINAL APPEAL NO. 767 OF 2006

STATE OF U.P. ... APPELLANT

VERSUS

AKHLAQ & ORS. ... RESPONDENTS

JUDGMENT

B. SUDERSHAN REDDY, J.

1. These three appeals by special leave arise out of a

common judgment made in Criminal Appeal Nos. 445 of

2

2005, 701 of 2005 and Capital Sentence Reference No. 2

of 2005, dated 7th October, 2005 on the file of High Court

of Judicature at Allahabad. The appellants in Criminal

Appeal No. 200 of 2006 along with other accused by

name Akhlaq, Salman and Nanha Pahalwan were tried for

offences punishable under Sections 148, 302 read with

Sections 149 and 201, IPC and Section 25 (4) of the Arms

Act. The trial Court sentenced all the five accused persons

to death for the offences punishable under Section 302

read with Section 149, IPC. Various other sentences have

been awarded to the accused for the offences punishable

under Sections 148 and 201, IPC. They were also

sentenced to undergo rigorous imprisonment for six

months each for the offence punishable under Section

25(4) of the Arms Act. The aggrieved appellants in

Criminal Appeal No. 200 of 2006 along with co-accused

Nanha Pahalwan and Salman have preferred their appeals

in one set jointly being Criminal Appeal No. 445 of 2005

and the other accused Akhlaq preferred Criminal Appeal

3

No. 701 of 2005 in the High Court. The High Court

confirmed the conviction of the appellants Akhlaq, Wakkar

and Imtiaz for the offences punishable under Sections

302/149, 201, IPC and Section 25(4) of the Arms Act and

commuted their sentence for the offences punishable

under Section 302/149, IPC from death penalty to that of

imprisonment for life. That, so far as the accused Nanha

Pahalwan and Salman were concerned, they were

convicted only for the offence punishable under Section

25(4) of the Arms Act and they were acquitted of the

offences punishable under Sections 302/149 and 201,

IPC. Hence, Criminal Appeal No. 200 of 2006 is preferred

by the appellants Wakkar and Imtiaz challenging their

conviction and sentence for the offences punishable under

Sections 302/149, 148 and 201, IPC and Section 25(4) of

the Arms Act and Criminal Appeal No. 767 of 2006 is

preferred by the State of U.P. pleading for award of death

sentence against the accused. Likewise, Criminal Appeal

No. 201 of 2006 is preferred by the complainant Sheikh

4

Zakaullah (PW 1) challenging the decision of the High

Court acquitting some of the accused and as well as

reducing death penalty to that of imprisonment for life.

2. According to the prosecution, on 9th August, 2000, the

deceased Sujaullah @ Mintu left home at about 9 a.m. to

his workplace and returned back at about 8 p.m. At 8.30

p.m., the accused Akhlaq gave a telephone call to the

deceased whereupon, he told his wife Zebi (PW 3) that he

was going to Akhlaq's shop as he must have called him to

receive payment of money and would be returning within

a short time, but the deceased did not return. At about 11

p.m., the complainant (PW 1), Sheikh Zakaullah, who is

none other than the brother of the deceased got anxious

and went out in search of his brother. At about 11.45

p.m., he came across Hamraj `Furniture-wala' from whom

he inquired about his brother. He told PW 1 that he had

seen the deceased at about 10 p.m. at the accused

Akhlaq's shop where he and the accused Imtiaz, Wakkar

and Akhlaq were also present. PW 1 continued his search

5

for his brother but could not trace him and he came back

to his foundry and sat there for awhile. At about 12.15

am, he noticed the accused Wakkar, Akhlaq and Imtiaz

along with two others coming down the stairs of first floor

room of Akhlaq's shop. On seeing them, PW 1 inquired

about his brother and the accused Akhlaq told him that

the deceased Mintu, in all probability, might have gone to

Chandigarh as told to him. Next morning, at about 9 a.m.

when accused Akhlaq came to his shop, PW 1 once again

inquired from him about his brother and the reply of

Akhlaq was the same but Akhlaq looked quite disturbed

which gave rise to some suspicion in the mind of PW 1

and as such he insisted Akhlaq to show his first floor

room, but the accused Akhlaq avoided to show the room

on the pretext that he was not having the keys of the

room. Thereafter, PW 1 Zakaullah with the help of a

ladder got into the roof of said first floor room of Akhlaq

and found some blood lying on the floor. He peeped into

the room and saw that several pieces of dead body of his

6

brother Sujaullah @ Mintu were lying there. These pieces

were kept in bags. He was shocked at the scene and

started raising alarm. He got down and told the people

present there about what he has seen. It is at that point

of time, Sompal (PW 6) told him that in the night at about

11 p.m., while he was present at his furniture shop, he

heard some shrieks from the first floor room of Akhlaq.

Thereafter, the door of the first floor room of Akhlaq's

shop was broken open by the agitated crowd collected

there and found the scene inside the room as horrifying

where the pieces of the body of the deceased Sujaullah @

Mintu were lying on the floor. Immediately, PW 1

prepared the written report (Ext. Ka-1) and lodged it at

the police station on 10th August, 2000 at 10 a.m.

3. On lodging of the first information report, the case under

Sections 147, 148, 302, 149 and 201, IPC was registered

and the Inspector, R.P. Sharma (PW 14) commenced the

investigation. During the process of investigation, the

Investigating Officer (PW 14) noticed that the body of the

7

deceased Sujaullah @ Mintu cut into pieces was lying in

the shop of Akhlaq. He prepared the inquest report (Ext.

Ka-26). Site plan (Ext. Ka-25) was drawn and the pieces

of the dead body were sealed and sent for postmortem.

The next day i.e. 11th August, 2000, the I.O. arrested the

accused Akhlaq and interrogated him. Relying upon the

statement of Akhlaq, the scooter of the deceased was

recovered. The blood stained knife was also found inside

the box of the scooter. The other accused Nanha

Pahalwan, Salman and Wakkar were absconding.

However, Wakkar was arrested on 16th August, 2000 and

one blood stained dagger used by him in the crime was

recovered from a graveyard (Kabristan) in the presence of

the witness Jeeshan and Zakaullah (PW 1). The recovery

memo (Ext. Ka-4) was prepared by the I.O. and the

recovered dagger was got sealed. The accused Imtiaz was

arrested on 19th August, 2000 and knife used by him in

the crime was recovered at a place called Kabir Nursery in

the presence of the witnesses. Recovery memo (Ext. Ka-

8

48) was prepared on the spot and site plan of the place of

recovery (Ext. Ka-49) was also prepared. Nanha Pahalwan

surrendered himself before the Court on 30th August,

2000 followed by Salman's surrender on 2nd September,

2000. Blood stained knife used in the crime and blood

stained watch of the deceased were recovered from the

accused Salman.

4. Postmortem examination was conducted on 10th August,

2000 at about 9.30 p.m. by Dr. K.K. Mehta (PW 4) who

vide his report (Ext. Ka-4) found ten incised wounds

which included the complete amputation of the left arm

from elbow joint, right arm from the elbow joint, right leg

from the knee joint, left leg from the knee joint. The head

from the neck was cut through and through which neck

bone was cut at Sl. No. 2. The head and face of the

deceased had also several cut injuries. In the opinion of

Dr. Mehta, the deceased had died about 18 hours before

the autopsy. The death was on account of shock and

9

hemorrhage as a result of aforementioned ante mortem

injuries.

5. On completion of the investigation, charge sheet (Ext. Ka-

62) was laid against the five accused under Sections 147,

148, 149, 302, 201 and 120B, IPC and additionally

charges under Section 25(4) of the Arms Act were also

framed.

6. The prosecution, in support of its case, has examined

Zakaullah, the complainant (PW 1), Safullah (PW 2), a

witness of recovery of the articles (scooter belonging to

the deceased and blood stained knife used in the crime)

on the disclosure made by the accused appellant Akhlaq.

The wife of the deceased Smt. Zebi (PW 3) and the Doctor

who conducted the postmortem, Dr. K.K. Mehta (PW 4)

were also examined. One Sompal (PW 6), the owner of

furniture shop in the neighbourhood of the shop of

accused Akhlaq was also examined. He is the witness who

heard the human shrieks from the first floor room of the

shop of Akhlaq.

10

7. A short question that arises for our consideration is

whether the various circumstances available on record

forms a chain pointing only to the guilt of the accused?

Whether the evidence adduced by the prosecution proves

particular facts relevant for the purpose of the case and

further question arises whether the facts are capable of

giving rise only to any inference of the guilt of the

accused persons?

8. It is well settled and needs no restatement at our hands

that the principle for basing a conviction on the basis of

circumstantial evidence is that each and every

incriminating circumstance must be clearly established by

reliable and clinching evidence and the circumstances so

proved must form a chain of events from which the only

irresistible conclusion about the guilt of the accused can

be safely drawn and no other hypothesis against the guilt

is possible. It is also well settled as held by this Court in

more than one decision that the Courts have to be

watchful and avoid the danger of allowing the suspicion to

11

take the place of legal proof for sometime, unconsciously

it may happen to be a short step between moral certainty

and legal proof. "That there is a long mental distance

between `may be true' and `must be true' and the same

divides conjectures from sure conclusions" [see Tanviben

Pankajkumar Divetia v. State of Gujarat1].

9. Admittedly there is no eyewitness to the occurrence. The

entire case of the prosecution rests only on certain pieces

of the circumstantial evidence to substantiate the charges

levelled against the appellants. The circumstances

formulated at page 19 of the judgment of the High Court

are:

(1) P.W. 3, the witness Smt. Zebi has deposed

about the fact that her husband, the

deceased in the night of incident when came

back from his karkhana (iron foundry) at

about 8.00 p.m., he, soon after received a

telephonic call from the appellant accused

Akhlaq at about 8.30 p.m. whereafter he

intimated her about Akhlaq's call and

immediately went to him by his scooter at

8.30 p.m.

(2) P.W. 1 Zakaullah when noticed that his brother Mintu did not return till late in the

1 (1997) 7 SCC 156

12

night, he has deposed before the court that

he went out in his search and reached

Akhlaq's shop nearby his foundry. There he

was told by 'Hamraj Furniturewala' that he

had seen Mintu at the shop of accused

Akhlaq. After he sat down at his foundry on

the chair, he in the hours of mid night

noticed the accused Akhlaq, Imtiaz and

Wakkar along with two others coming down

the stairs from first floor room of the

accused. He also noticed that Akhlaq was

extremely perplexed when he inquired from

him about his brother. He was told by Akhlaq

that Mintu, the deceased was telling him

about his likely departure for Chandigarh.

(3) P.W. 1 remained in his foundry till morning

and at 9.00 a.m. of 10.8.2000 when Akhlaq

again visited the shop. P.W. 1 further

inquired from him about his brother and at

that juncture also the accused (Akhlaq)

looked nervous giving rise to some suspicion

in the mind of the complainant.

(4) P.W. 1 asked Akhlaq to show his first floor room which he avoided on the pretext of not

possessing the key of locked room.

(5) On account of suspicion so arisen in the mind of P.W. 1, he, in hope of getting some clue in

the room about his brother, ascended the

roof of the said room through a ladder from

the side of saw machine of Bhoora behind the

building of accused Akhlaq. From the roof he

got down through the stairs and found

presence of blood there and when he peeped

from the crevices of door in the room he was

shocked at the sight of the pieces of his

13

brother's dead body wrapped in the pvc bags

and some cloth.

(6) P.W. 1 having been completely frightened at

the scene of the room rushed down and

raised alarm which attracted people from

among whom P.W. 6 Sompal came to him

and told of having heard the shrieks of man

coming from the room of the incident.

(7) P.W. 6 Sompal states that in the night of

9.8.2000 at about 11.00 p.m. he heard the

shrieks of a man coming from the first floor

room of the accused Akhlaq's shop.

(8) The last circumstance relating to the incident,

which has come in the evidence before the

trial court, is the evidence of recoveries of

instruments used in the crime by the accused

persons and also the recoveries of the

scooter, watch and trouser all blood stained

belonging to the deceased from the

possession of those accused, as detailed

above.

10. It is equally well settled that in a case which is based on

circumstantial evidence, motive for committing the crime

on the part of the accused assumes importance. The

suggested motive is that the deceased Mintu joined a

lottery/money circulation scheme run by accused Akhlaq

and invested a sum of Rs.60,000/- in the said business.

14

On some pretext or the other, the accused Akhlaq was

postponing the payment due to the deceased. On 7th

August, 2000, the deceased insisted for the payment

whereupon the accused Akhlaq along with other accused

told him that they would make the payment at their

convenience and further threatened the deceased that

they would eliminate him if he keeps insisting for the

payment of money.

11. The only question that arises now for our consideration in

these appeals is as to whether the circumstances and the

chain of events conclusively establish the involvement of

all the accused in committing the crime of murder of the

deceased?

12. Shri Nagendra Rai, the learned senior counsel appearing

for the appellants in Criminal Appeal No. 200 of 2006,

submitted that it would be unsafe to convict the accused

based on the sole and interested testimony of PW 1,

who is none other than the brother of the deceased. He

also submitted that the circumstantial evidence is so weak

15

and it is impossible to arrive at any proper conclusion that

the appellants, in any way, were responsible for the

commission of murder of the deceased. There is not even

an iota of evidence suggesting that the deceased and the

appellants were last seen together and there was no

motive attributed to the appellants herein for indulging in

the ghastly crime of committing murder of the deceased.

13. Shri R.K. Dash, learned senior counsel appearing for the

State and Shri Dinesh Kumar Garg, learned counsel

appearing for the appellant in Criminal Appeal No. 201 of

2006 strenuously contended that all the accused including

those who were acquitted by the High Court were

responsible for the commission of murder of the

deceased. The circumstantial evidence and the chain of

events conclusively suggest the involvement of all the

accused in the brutal murder of the deceased. They have

pleaded for restoration of judgment of the trial Court and

for convicting and sentencing all the accused with death

penalty.

16

14. We have considered the rival submissions and perused

the material available on record. Before we proceed

further to discuss and consider the submissions made by

learned counsel appearing on behalf of their respective

parties, it is just and necessary to notice that Akhlaq (A 1)

who is stated to be the main culprit, did not prefer any

appeal against his conviction and sentence of life

imprisonment granted by the High Court. The entire case

depends upon the evidence of PWs 1, 2, 3 and 6 as

examined by the prosecution. It is they who speak about

incriminating circumstances and the chain of events.

There is no dispute whatsoever that the prosecution has

clearly established that the murder of deceased Sujaullah

@ Mintu took place in the room located on the first floor

of a shop which was under the occupation of Akhlaq (A 1)

and others. The pieces of dead body of the deceased

Sujaullah @ Mintu were recovered from that room. This is

one of the strong circumstances suggesting the

involvement of Akhlaq in the crime. There is no

17

explanation whatsoever much less any cogent one

forthcoming from the accused as to how the body of the

deceased cut into pieces was found in the shop premises

which is in the possession of Akhlaq and others. This is

the strong circumstance which the prosecution has

clinchingly established that the dead body was found in

the shop belonging to Akhlaq where some business

was being carried on by Akhlaq along with his kith and

kin.

15. Secondly, there is absolutely no reason to disbelieve the

evidence of Smt. Zebi (PW 3), wife of the deceased who

in clear and categorical terms stated that the deceased

received a telephone call at about 8.30 p.m. on the fateful

day from the accused Akhlaq to come over to the shop

and receive the payment of lottery money which was due

in respect of which persistent demands were there from

the deceased. It is in her evidence that the deceased

immediately after receiving the telephone call, left on his

scooter but did not return back to home. It is further in

18

her evidence that having waited till about 11 p.m. in the

night, she informed Zakaullah (PW 1) who is none other

than the elder brother of her deceased husband. Her

evidence receives complete corroboration from the

statement of PW 1 that he was informed by Smt. Zebi

(PW 3) that the deceased left home on receiving

telephone call from the accused Akhlaq but did not return

thereafter.

16. In this context, the evidence of PW 1 assumes significance

that in pursuance of the information received from his

sister-in-law (PW 3), he left the house in search of his

brother (the deceased) and ultimately leading to

discovery of the dead body of the deceased from the

place of occurrence i.e. the first floor of the shop

belonging to Akhlaq. The evidence of PW 3 read together

with that of PW1's statement, unerringly establishes that

the deceased had gone to the shop belonging to the

accused Akhlaq on receiving a telephone call from Akhlaq

19

in connection with the payment that was due to him from

Akhlaq and others.

17. There is nothing to disbelieve the evidence of Sheikh

Zakaullah (PW 1) that till midnight he could not trace the

deceased and out of desperation he returned to his work

place and by midnight he noticed the accused Akhlaq,

Imtiaz and Wakkar along with two other persons coming

down from the stairs of the first floor room of the shop of

Akhlaq where the dead body was later on found. It is in

his evidence that he enquired from Akhlaq about his

brother and Akhlaq gave an evasive answer. There is no

dispute whatsoever that the murder of the deceased took

place during that night only at the shop belonging to the

accused where all the three accused Akhlaq, Imtiaz and

Wakkar were seen coming from the scene of offence. It is

undoubtedly a very strong circumstance which unerringly

points towards the culpability and involvement of these

three accused. The High Court, in our considered opinion,

on reappreciation of the evidence available on record,

20

believed the evidence of PWs 1 and 3 in this regard and

rightly taken circumstances into consideration leading to

an irresistible conclusion that these three accused namely

Wakkar, Akhlaq and Imtiaz were involved in the

commission of the crime. It is also crucial to note that

upon suspicion, PW 1 insisted Akhlaq to show the first

floor room of his shop but there was no response

whatsoever as the accused just avoided stating that he

was not in possession of the key of the locked room and

at that point of time, the accused Akhlaq was very

nervous. It is at that time, PW 1 became suspicious about

the whole thing and in the process, PW 1 with the help of

a ladder, climbed to the roof of the said first floor room of

the shop from behind and on reaching the roof got down

through the stairs of the first floor and noticed scattered

blood on the floor and found pieces of dead body of his

brother. The trial Court and as well as the High Court

have properly appreciated the evidence of PW 1 in this

regard and there is nothing on record to disagree with the

21

view taken by the Courts below.

18. PW 6 is one Sompal who heard the human shrieks coming

out from the first floor room of the shop belonging to the

accused Akhlaq. This witness has a furniture shop in the

neighbourhood of the shop of Akhlaq. It is in his evidence

that he told Zakaullah (PW 1) that in the previous night

he had heard human shrieks coming out of the first floor

room of the shop. This witness was not subjected to any

cross examination except by the counsel representing the

accused Akhlaq. We cannot disbelieve the presence of this

witness in his own shop at about 9 p.m. on the fateful

night. It is in his evidence that on that fateful night of the

incident, there was some `pooja' in the vicinity and

therefore, he stayed back to have some prasad after

pooja. His presence at that time in the neighbourhood of

the place of incident cannot be doubted. No particular

reason suggested to him in the cross examination as to

why he should give a false statement.

22

19. The last one of the foremost circumstances which is

brought on record through the evidence of the witnesses

examined on behalf of the prosecution relates to the

recoveries of incriminating articles made from the accused

Akhlaq, Wakkar and Imtiaz. It is on record that blood

stained knives and daggers allegedly used in the crime

and the blood stained scooter, trouser and watch

belonging to the deceased were recovered and these

articles have contained human blood stains on them.

These articles are said to have been recovered on the

disclosure made by the appellants to the police. There

was some criticism that there were no independent

witnesses to the recovery except PW 1 and the

Investigating Officer, R.P. Sharma, PW 14. But, we are

not inclined to reject the evidence of PW 1 merely

because he happened to be the brother of the deceased.

It is true that recovery of certain incriminating articles at

the instance of the accused under Section 27 of the

Evidence Act by itself cannot form the basis of conviction.

23

The recovery of incriminating articles and its evidentiary

value has to be considered in the light of other relevant

circumstances as well and the chain of events suggesting

the involvement of the accused. The trial Court and as

well as the appellate Court did not rest the conviction of

the appellants solely based on the recoveries. The fact

remains that the recovery of articles used in the

commission of offence has been taken into consideration

together with other incriminating circumstances brought

on record by the prosecution.

20.Now the only question that remains for our consideration

is whether the case on hand is one of over implication?

21. Learned senior counsel for the appellants strenuously

contended that there is no evidence available on record to

show the involvement of these appellants in the crime.

The submission was that no motive has been suggested

as against these appellants as to why they should commit

the murder of the deceased. We shall consider the same.

24

22. It is in the evidence of PW 1 that the accused Nanha

Pahalwan, Salman and Imtiaz are real brothers. Wakkar is

none other than the son of their step brother Irshad. The

evidence available on record shows that the deceased

Sujaullah invested a sum of Rs.60,000/- in the

lottery/money circulation scheme which was being run by

these persons along with Akhlaq. The deceased was

repeatedly demanding for return of his amount from all

the accused. In the circumstances it becomes difficult to

accept the submission of learned senior counsel that the

appellants Wakkar and Imtiaz were in no way involved in

the conduct of business of lottery/money circulation

scheme along with the accused Akhlaq at the shop

belonging to Akhlaq. For the aforesaid reasons, we hold

that the trial Court and as well as the High Court have

rightly concluded that the immediate impelling motive on

the part of the appellants which led them to commit the

crime in question is traceable to their involvement in the

business and persistent demands from the deceased for

25

return of his money. We are not inclined to accept the

submission made by the learned senior counsel that there

is no evidence suggesting that the appellants were also

involved in the said finance business along with Akhlaq.

Like Akhlaq, the appellants also had the impelling motive

which led them to commit the crime in question. It is not

a case of any over implication. In this context, the

evidence of PW1 becomes relevant that he noticed the

accused Akhlaq, Imtiaz and Wakkar along with two other

persons coming down from the stairs of the first floor

room of Akhlaq's shop where the dead body of the

deceased was later on found. The findings recorded by the

trial Court and confirmed in appeal by the High Court

finding the appellants to be guilty of the charged offences

along with Akhlaq are unassailable. Both these appellants

have been rightly convicted for the offences so charged.

23. What remains for our consideration is whether the High

Court committed any error in acquitting the accused

persons Salman and Nanha Pahalwan. They were

26

convicted only for the offence of illegal possession of the

illicit arms punishable under Section 25(4) of the Arms

Act. The High Court rightly refused to convict them based

only on the recovery of incriminating material objects.

The High Court has noted that their names did not find

place in the FIR (Ext. Ka-1) initially given at the police

station by PW 1 which consists of the names of three

accused persons Akhlaq, Wakkar and Imtiaz and two

more persons whom PW 1 was not able to identify. The

names of Nanha Pahalawan and Salman have figured on

subsequent information received by PW 1. The

circumstance pressed into service that the deceased was

last seen in the company of the accused including Nanha

Pahalwan and Salman has been rightly disbelieved by the

High Court. The statement of Irfan `panwala' which is the

root suggesting that the deceased was last seen with the

accused including Nanha Pahalwan and Salman is of no

consequence since he has not been examined as a

witness by the prosecution. Thus, there is no evidence

27

whatsoever to connect Nanha Pahalwan and Salman with

the commission of the crime. The High Court, in our

considered opinion, rightly acquitted both the said

accused.

24. Whether the case falls in the category of `rarest of rare'

for awarding death sentence? There is no direct evidence

as to the manner in which the gruesome murder had

taken place. It is not possible to discern and arrive at any

definite conclusion as to the role played by each of the

accused in the commission of the dastardly crime. No

doubt they committed the crime in cold blood but did it

quite stealthly. The entire case rests on the circumstantial

evidence. The High Court having taken all relevant factors

into consideration rightly came to the conclusion that the

case is not the one which falls in the category of `rarest of

rare'. We are in agreement with the conclusion arrived at

by the High Court and its decision to award life

imprisonment alone and not the death sentence.

28

25.For all the aforesaid reasons, we confirm the judgment of

the High Court and accordingly dismiss all the appeals.

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

(B. SUDERSHAN REDDY)

NEW DELHI, ................................................J.

FEBRUARY 3, 2011. (SURINDER SINGH NIJJAR)