Mustkeem @ Sirajudeen
Vs. State of Rajasthan
J U D G M E N T
Deepak Verma, J.
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 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
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
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
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.
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.
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.
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
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.
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.
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
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.
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
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.
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.
- 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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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".
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.
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.
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.
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".
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
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.
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.
[ASOK KUMAR GANGULY]