Hussain & Anr Vs. State of Uttar Pradesh
 INSC 206 (5
E.S. (J) Venkataramiah, E.S. (J) Singh, K.N. (J)
1987 SCALE (2)693
Penal Code, 1860: Sections 210, 302 and 364- Appellants convicted by Trial
Court-High Court confirming conviction-On appeal) Supreme Court acquitting
accused holding that circumstantial evidence falls short of required standard
on all material particulars.
prosecution case was: the appellants, who were of bad character, had an evil
eye on the lands belonging to the younger brother of PW 1, in furtherance of
which they got a fraudulent sale deed executed and murdered him in order to
eliminate the possibility of the fraud being detected.
foul play of the appellants, PW 1 lodged an FIR.
instance of appellant No. 2, who was first arrested, a dead body was recovered
from a water logged pond and was identified to be that of PW 1's younger
brother, on the basis of a shirt and a tahmad. The doctor; who conducted the
post mortem. could not give the cause of death or its duration.
appellants were convicted and sentenced under ss. 302, 364 and 210 IPC by the
trial Judge. On appeal, the High Court maintained the conviction and sentence
of appellant No. I but reduced the same of appellant No. 2 to one under s. 201.
The evidence against the appellants is purely circumstantial. But the
circumstantial evidence falls short of the required standard on all material
particulars. The conviction of the appellants cannot. therefore, be sustained.
[247H, 2490A] There is no satisfactory evidence that the sale deed in question
was executed by somebody impersonating the deceased. Though PW 12, who was
identified by PW 11, scribe of the sale deed, as the person who impersonated
the deceased, deposed that he had put his thumb impression an the sale deed,
the thumb impression of the executant and the admitted thumb impression of pW
12 were not sent for expert opinion. Nothing could be elicited from, nor any
question was put to PW 20 to corroborate the version of PW II, as to PG NO 245
PG NO 246 the contents of the sale deed or the identity of the persons who
accompanied him to PW 11 or those who put the thumb impression on the sale
deed. [248B-D] The evidence on record is equally unsatisfactory as to
identification of the dead body. Post-mortem was done more than three months
from the date of alleged disappearance of the deceased. The doctor who
conducted the post-mortem stated that it was skeleton of a young adult male and
was unable to give the cause of death or when the death took place owing to the
condition of the body. The two panch witnesses for the recovery of the dead
body could not identity the clothes recovered from the dead body as belonging
to the deceased. Though clothes were said to have been identified by PW 1 and
his wife, a perusal of PW 1's evidence would indicate that the identification
was nothing but farce. The body was not recovered at his instance. He could not
have seen the dead body with the clothes, as these were removed, washed, dried
and packed separately with the seal of the panchas. He was called to the Court
only for the identification of the clothes and body. lie stated that the dead
body by appearance looked like that of his brother. He could identify the
clothes by a chit and a knot on them. The witnesses, who were stated to have
seen the deceased going with the appellant No. 1 and his father-in-law did not
speak anything about the dress which the deceased was wearing at that time.
PVI: Is evidence could not be believed since he and the deceased were living
separately and he could not have seen all that he had stated in evidence. [24E,
G- H,249A-B, D-H] Conviction and sentence of appellants set aside. They are
acquitted of all charges. [250A]
APPELLATE JURISDICTION: Criminal Appeal E No. 289 of 1978 were Cri. Appeal No.
403 of 1978.
the Judgment and Order dated 10.5.1978 of the Allahabad High Court in Criminal
Appeal No. 213 of 1973.
and K. B. Rohtagi of the Appellant inn Crl. A. No. 289 of 1978.
Jain, Rakesh Khanna and R.P. Singh for the Appellant in Crl. A. No. 403 of
Raj Singh and Dalveer Bhandari for the Respondent.
247 The Judgment of the Court was delivered by JAGANNATHh SHETTY, J. This
appeal by Special leave is from a Judgment of the Allahabad High Court dated 10 May 1978 dismissing Criminal Appeal No. 1 13 of 1973.
appellants were convicted and sentenced under Section 302,364 and 210 IPC by the
trial Judge. On appeal, the High Court maintained the said conviction and
sentence of appellant No. (1), but reduced the same of appellant No. (2) to one
under Section 201. The prosecution case in brief is as follows:
the deceased, is the younger brother of Shabbir (PW 1). They were not living
together. The former used to live with his mother. Islam had his own share of
lands measuring 16 Bighas. He was separately cultivating the same.
appellants were once his close associates. They were of bad character. So
mother and brother advised lslam to part company with them. So lslam did and
went on minding his own work. He was unmarried. The appellants had an evil eye
on the property of Islam. They got executed a fraudulent sale deed (Ex. Ka.
12). The deed Was dated 15 February. 1971. One Ahsan who has been examined as
PW 1' has impersonated Islam before the Sub-Registrar. They deed purports to
transfer that agricultural land of Islam in favour of the wife of appellant
No. ( 1). It is said that the appellants in order to eliminate the possibility
of this fraud being detected.
suspecting foul play of the appellants lodged a report on 21 April, 1971. Zakir Ali appellant No, (1) was
first arrested. He pointed out a dead body on IX July, 1971.
wits recovered from a place deeply burried in a water logged pond. However, it
was said to be identified as that of islam. The identification was based on a
shirt (Ex. 1) and a tahmad (Ex. 2.).
the post-mortem. the Doctor was unable to give his opinion regarding the cause
of death or its duration.
evidence against appellants is purely circumstantial: (i) motive for the crime
(ii) the evidence as to last seen (iii) recovery of the body at the instance of
Appellant No. (2), and (iv) identification of the clothes with which the dead
body was found.
248 We will first examine whether the motive which is of course relevant in
this case has been satisfactorily established. Ex. Ka. 12 is the sale deed by
which the properties belonging to Islam were said to have been sold to the wife
of Sardar Hussain, appellant No. (1). Usman Ali (PW 11), who is the scribe of
the sale deed, has deposed to its contents. He has stated that one Sarfaraz (PW
20) along with the accused came to him with a request to draft the sale deed.
They gave the particulars. He has written the sale deed of which the executant
was Islam. In the Court, he has identified Ahsan (PW 12) as the person who
impersonated Islam and put his thumb impression. He has also identified Zakir
Ali-appellant No. (2) who affixed his thumb impression to the sale deed as a
witness. But when Sarfaraz Hussain was examined as PW 20 in the Court. nothing
was elicited about the sale deed or the persons who accompanied him to PW 1 1.
No question was put to him as to the contents of sale deed Ex. Ka. 12 or to the
identification of persons who affixed the thumb impressions thereon. PW 12 has,
no doubt deposed that he had put his thumb impression on Ex. Ka. 12. But the
prosecution has not sent the thumb impression of the executant of Ex. Ka. 12
with the admitted thumb impression of PW 12 for expert opinion. There is,
therefore, no satisfactory evidence that the sale deed Ex. Ka. 12 was executed
by somebody impersonating Islam.
identification of the dead body, the evidence on record is equally
unsatisfactory. Shabbir (PW 1) has deposed that about 14 months before, Islam
was taken by Sardar Hussain and Yasin. Yasin is the father-in-law of Sardar Hussain.
He has also stated when Islam went with them, he was wearing a Shirt of green
check and a black striped tahmad. Islam was taken on the pretext that they
would get him married. He has further stated that Mian Jan (PW 1) and,Sadiq (PW
3) and one other person called Majid had seen Islam going with the Sardar Hussain
and Yasin. But Main Jan (PW 2) and Sadiq (PW 3) did not speak anything about
the dress which Islam was wearing when he was taken by Sardar Hussain and Yasin.
Secondly, how could Shabbir see all that he had stated. Islam and Shabbir were
living separately. Islam was not taken after a meeting with Shabbir. It is not
the case of Shabbir that Islam came to him and told him about the purpose of
his going with the accused. If the purpose was to get Islam married. why did he
allow Islam to go with the accused. Islam had by then parted company with them
at the instance of Shabhir and mother, because they were of bad character. Is
it understandable that such bad characters should arrange the marriage without
the assistance or approval of Shabbir and mother? It is difficult to believe Shabbir
in the circumstances.
249 Islam was said to have disappeared on 12 Aprial, 1971.
lodged the report on 21
April, 1971. The dead
body was recovered on 18
July, 1971. The
post-mortem was done on 20
July, 1971. It was
more than three months from the date of alleged disapearance of Islam. Dr. D.P.
Manchanda (CW 1) who conducted the post-mortem was not able to give the cause
of death. He has stated that it was a skeleton of a young adult male. According
to him, it would be difficult to tell correctly as to when the death of the
deceased had taken place. There was no flesh left in the body. The eye-balls
were missing. The Vertabrae was not found attached to the skull. With this
condition of the skeleton the Doctor could not have given any better opinion.
Singh (PW 7) is a Panch witness for the recovery of the dead body. He has
deposed that when the body was removed, the tahmad and shirt were intact and
they were taken out by Sub-Inspector. Man Singh (PW 8) is another Panch
witness. He has also stated that the shirt and tahmad were removed by the
Sub-Inspector. washed, packed and sealed. The Panch witnesses could not
identify the shirt and tahmad as belonging to the deceased.
clothes are said to have been identified by Shabbir and his wife Smt. Bhoori
(PW 13) . The identification was conducted by Ramakant Dube (PW 9). He had
mixed up the said clothes with five like clothes resembling with each other.
stated that Shabbir and Smt. Bhoori correctly identified them and did not
commit mistake. But if one carefully peruses his evidence, the identification
was nothing but farce. The dead body was not recovered in the presence of Shabbir.
He was called to tbe Court of the Magistrate only for the identification of the
clothes and the body. He has stated that the dead body by appearance looked
like that of his brother. We have earlier seen that the Sub-Inspector had
removed the clothes, washed dried and packed them separately with the seal of
the panchas. Shabbir could not have seen the dead body with the clothes. The
shirt (Ex. 1) and tahmad (Ex. 2) were no doubt mixed up with other similar
clothes for the purpose of identification as deposed by PW 9. But the witness
identified Ex. 1 because there was paper chit pasted on it. He identified Ex. 2
because it had a knot. That is why we said earlier that the identification was
a farce. We are surprised that the Courts below should rely upon this kind of
evidence. The circumstantial evidence in the case thus falls short of the
required standard on all material particulars. We are, therefore, unable to
sustain the conviction of the appellants.
250 In the result, these appeals are allowed. The conviction and sentence
passed against the appellants are set aside.
are acquitted of all the charges. They be set at liberty if they are in
custody, and if they are not required in any other case.