Mohd. Aman: Babu Khan vs State Of Rajasthan

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(SC) 849

1997(4) Supreme 635
Supreme Court of India
(From Rajasthan High Court)
M.K. Mukherjee & K. Venkataswami, JJ.
Mohd. Aman & Anr. etc. -Appellants
versus
State of Rajasthan -Respondent
Criminal Appeal No. 1749 of 1996
with
Criminal Appeal No. 1833 of 1996
Decided on 8-5-1997
Counsel for the Parties :
For the Appellant : H.M. Singh Advocate.
For the Respondent : K.S. Bhati, Advocate.

Headnote:(i) Appeal Against Conviction-Indian Penal Code, 1860-Sections 302 and 460-Conviction for offence under-Challenged-Homicidal death-No eye witness-House found ransacked-Conviction of appellant based on his finger prints found on a brass jug in house of deceased-Failure to establish that seized articles were not or could not be tampered with before it reached Bureau for examination-Articles were kept in police station for five days without any justifiable reason-Seal, mark of which was put on articles was with IO since time of seizure-Letter forwarding seized articles to Bureau contains an overwriting as regards date of its writing/despatch-Specimen finger prints of appellant never taken before or under order of a Magistrate in accordance with Section 5 of Identification of Prisoners Act-Brass jug never exhibited and produced during trial-Conviction of appellant not sustainable. (Para 8)
       (ii) Indian Penal Code, 1860-Sections 302, 460 and 380-Conviction under-Appeal-Prosecution relied upon find of appellant s finger print on a glass tumbler, his foot prints in house of deceased and recoveries of four silver rings belonging to wife of deceased-Possibility of fabrication of evidence to implicate him not ruled out-Missing link between identity of articles seized and identity of articles examined by Finger Print Bureau-Non production of glass tumbler during trial-Sample foot prints not taken before a Magistrate-FIR did not give any list of articles stolen-No evidence that seized articles belonged to wife of deceased-Conviction not legally sustainable.
       Held; unless the prosecution conclusively establishes that the articles recovered were stolen when the murder was committed, and not on an earlier occasion, there would be a missing link in the chain so far as the specific accusation levelled against the accused is concerned. Once it is found that the evidence relating to find of foot prints and finger prints of the appellant and the recovery of the four silver rings cannot be safely relied upon, the proof of the other two circumstances, namely that a blood stained knife was recovered after fifteen days of the incident pursuant to the statement of the accused and that few simple injuries were found on his person on April 20, 1983 when he was arrested would only raise a strong suspicion against him and not a conclusive inference of his guilt. The conviction of Mohd. Yusuf therefore cannot also be maintained. (Para 9)
       (iii) Indian Penal Code, 1860-Sections 302, 460 and 380-Conviction under-Prosecution relied upon recovery of a pair of anklets of deceased s wife from appellant s possession-Circumstance relating to recovery not reliable-Recovery of blood stained trouser from house of PW 9 who turned hostile-Recovery made after 10 days of incident-Simple injuries on person of appellant-Such circumstances do not establish his guilt-Conviction held legally sustainable. (Para 10)
       (iv) Evidence Act, 1872-Section 3-Identification of foot prints-Evidence may be used only to reinforce conclusions as to the identity of culprit already arrived at on basis of other evidence. (Para 9)

Judgment

M.K. Mukherjee, J.-These two appeals have been heard together as they are directed against one and the same judgment rendered by the Rajasthan High Court while disposing of D.B. Criminal Appeal No. 118 of 1985. By the impugned judgment the High Court upheld the convictions and sentences recorded against Mohd. Aman (one of the appellants in Criminal Appeal No. 1749 of 1996) under Sections 302 and 460 IPC and against Mohd. Yusuf (the other appellant in Criminal Appeal No. 1749 of 1996), Babu Khan (appellant in Criminal Appeal No. 1833 of 1996) and one Mohd. Iqbal (who has not filed any appeal) under Sections 302, 460 and 380 IPC.

2. The prosecution case, briefly stated, is as under :

(a) Jafar Alam (the deceased), who was a widower and had no issue, was a resident of Mohalla Bas, in the town of Nagaur. He had no arrangement of his own for cooking food and his close relatives including Sabir Hussain (P.W.10) who lived nearby used to serve him daily. On April 13, 1983 at or about 10 A.M. when her niece Mrs. Manohar (P.W.3), went to his house carrying his food she found the main door of the house open. She entered the house and called Jafar Alam but did not get any response. She then went to the inner room and found to her utter dismay that he was lying dead on the floor in a pool of blood. She rushed out of the house and informed Sabir Hussain and others. All of them then came back and noticed that there were a number of injuries on the person of the deceased, that his mouth was gagged with his tehmat and that the house was ransacked.

(b) Sabir Hussain then went to Nagaur police station and lodged a first information report (Ext. P/7). On the report a case under Section 302 IPC was registered and investigation was taken up. In course of the investigation the side was inspected and a number of articles were seized, some of which appeared to have finger prints on them. Besides, a foot print was noticed there, photographs of which were taken.

(c) The three appellants were arrested in connection with the case on April 20, 1983 and pursuant to the statement of Babu Khan a pair of silver anklets belonging to the wife of the deceased were recovered and his blood stained clothes were seized. Statement made by Mohd. Yusuf resulted in recovery of a blood stained knife and our stolen silver rings.

(d) Specimen finger prints and foot prints of the appellants were taken by the Investigation Officers and they were sent to the Expert for comparison with the finger prints and foot prints earlier found in the house. The seized knives and the wearing apparels of Babu Khan were also sent for examination by the Forensic Science Laboratory. After receipt of the report of the experts and on completion of investigation police submitted charge sheet against the four accused persons including the three appellants.

3. The appellants pleaded not guilty to the charges levelled against them and contended that they had been falsely implicated at the instance of the police.

4. In absence of any eye witness to prove its case the prosecution relied upon the following circumstances to connect the three appellants with the offences alleged against them :

(i) The three appellants and Mohd. Iqbal were seen by Habib Khan (P.W.7) loitering near the house of the deceased at or about 10 P.M. on April 12, 1989;

(ii) Hanif Khan (P.W. 8) saw all four of them at or about 3 A.M. on April 13, 1983 proceeding across his house towards Ginani;

(iii) In the house of the deceased finger prints of appellants Mohd. Aman and Mohd. Yusuf were found on a brass jug and a glass tumbler respectively;

(iv) Foot print of Mohd. Yusuf were found in the house of the deceased;

(v) Injuries were found on the persons of Mohd. Yusuf and Babu Khan when they were arrested by the police on April 20, 1983; and

(vi) Four silver

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1997 Supreme(SC) 849

Cases Referred (1)