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SUPREME COURT OF INDIA
A.M. Khanwilkar, L. Nageswara Rao, JJ.
Asar Mohammad and Ors. - Appellants
Versus
The State of U.P. - Respondent
Criminal Appeal No. 1617 of 2011
Decided On : 24-10-2018
(1989) Supp. (2) SCC 706; (1992) 3 SCC 43 – Relied upon
(b) Criminal trial – Circumstantial evidence – Deceased and appellants related and residing in same house – Both deceased went missing – No information filed for two months – Appellants maintaining abject silence and failing to explain incriminatory circumstances against them – Bodies recovered at instance of appellants – Held, courts below rightly convicted the appellants. (Para 11, 12, 14)
(1972) 2 SCC 80; (2006) 10 SCC 681 – Relied upon
(c) Indian Evidence Act, 1872 – Section 27 – ‘Fact’ – Not limited to “actual physical material object” – Includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. (Para 13)
(2015) 1 SCC 253 –Relied upon
(d) Criminal trial – Circumstantial evidence – Appellant 1 held guilty of offence u/s 302 IPC – No independent evidence against appellants 2 and 3 for convicting them u/s 302 IPC except confessional statement of appellant 1 before police – Well settled that confession of the co-accused by itself cannot be the basis to proceed against the other accused unless something more is produced to indicate their involvement in the commission of the crime – Held, it is not permissible to proceed against appellant nos.2 and 3 solely on the basis of the confession of appellant No.1 made before the police, even if relevant part of the confession is admissible and has been duly proved. (Para 15, 16)
1952 SCR 526; (1948-49) 76 IA 147; ILR (1931) 54 Mad 75; ILR (1911) 38 Cal 559; (1964) 6 SCR 623 ; AIR 1964 SC 1184 – Relied upon
(e) Indian Penal Code, 1860 – Sections 302 and 201 – Three accused convicted for offences u/s 302 and 201 – Conviction of accused 1 upheld – Conviction of appellant and 3 not upheld – Held, reprieve from conviction u/s 302 cannot extricate them from the offence u/s 201 – Appellants residing in the same house with the two deceased – Appellants 2 (son of appellant3 and deceased Zahida) and appellant 3 (husband of Zahida) making no efforts to search the deceased for two months after they went missing – Not even making report to police – Appellants 2 and 3 not challenging identity of two dead bodies recovered from their premises – Trying to screen appellant 1 – Not offering any explanation about their conduct – Held, appellants 2 and 3 are guilty u/s 201 and rightly convicted as such. (Para 17)
Facts of the case:
High Court upheld the conviction recorded against the appellants for an offence punishable under Section 302 of the Indian Penal Code but converted the sentence of death into imprisonment for life with fine, and confirmed the conviction under Section 201 of the IPC and sentence of 2 years’ imprisonment and fine, as awarded by the Additional Sessions Judge/Special Judge.
Finding of the Court;
While appellant 2 and 3 are not guilty u/s 302; all the theww appellants are guilty u/s 201.
Result: Appeal filed by appellant No.1 dismissed. Appeal filed by appellant Nos.2 and 3 partly allowed.
JUDGMENT :
A.M. Khanwilkar, J.
1. This appeal emanates from the judgment and order passed by the High Court of Judicature at Allahabad dated 30th July, 2009 in Criminal Appeal No.1631 of 2008, whereby the High Court upheld the conviction recorded against the appellants for an offence punishable under Section 302 of the Indian Penal Code (IPC) but converted the sentence of death into imprisonment for life with fine, and confirmed the conviction under Section 201 of the IPC and sentence of 2 years’ imprisonment and fine, as awarded by the Additional Sessions Judge/Special Judge, J.P. Nagar in Sessions Trial No. 155/2004.
2. Briefly stated, one Shababul (PW7) gave information to the Police Station, Dedoli on 24th January, 2004 about one Zahida Begum, the second wife of appellant No.3, Akhtar Mohammad, son of Munshi, and their son Ishlam (aged about 11 years) who had gone missing from the village for the last two months, despite which their family members had not reported the matter to the police. The appellant Nos.1 and 2, Asar Mohammad and Asraf Mohammad respectively, are the two sons of appellant No.3 Akhtar Mohammad, from his first wife. Thus, deceased Zahida Begum is the step mother of appellant Nos.1 & 2, Asar Mohammad and Asraf Mohammad. On the basis of the aforementioned report, the Head Constable Surendra Singh (PW10), who was posted as Head Moharrar, made an entry in GD No.32 (Ext. Ka17). Acting on that report, PW9 Virendra Kumar Tyagi, Station House Officer of Police Station, Dedoli, visited the village along with SI Doonger Singh Verma (PW6), Mangey Ram Tomar, Nath Prakash Gupta, Constable Asqar Ali and SSI Harendra Singh (PW4). On enquiries with Asar Mohammad (appellant No.1/accused No.1), he disclosed that Zahida was his step mother and her son Ishlam was his step brother. He confessed that he, along with the other two appellants committed the murder of both Zahida and Ishlam and thereafter, dumped their dead bodies into the septic tank in the backyard of their house. He then led the police party to the septic tank and removed the lid with the help of Mangat and Jagadish Valmiki (PW8), wherefrom the dead bodies were taken out. The dead bodies were highly decomposed and virtually reduced to skeletons. The body of Zahida Begum was found tied with nylon cord (Ext. Ka18). Thereafter, the memo of recovery of the dead bodies was prepared by Harendra Singh (PW4). SI Doongar Singh Verma (PW6) conducted the inquest and gave the inquest report. He also prepared the necessary papers concerning the dead bodies and drew a site plan of the place of recovery (Ext.Ka19). The dead bodies were then dispatched for postmortem examination on the next day, i.e. 25th January, 2004. The Investigating Officer then recorded the statement of the inquest witnesses and proceeded to arrest Asraf Mohammad (appellant No.2/accused No.2), whose statement was recorded on the same day. The statements of Begum Banu (PW1) and Akram were recorded on 26th January, 2004. The appellant No.3 Akhtar came to be arrested on 10th February, 2004. The postmortem of the dead bodies was conducted by Dr. Kuldeep Singh (PW5) who noted that the body of Zahida Begum inter alia had fracture of Hyoid bone and Hyoid Cartilage which, in his opinion, was the cause of death due to asphyxia (fracture of Hyoid bone and Thyroid Cartilage) and that the death had occurred more than one month back. With regard to the dead body of Ishlam, he inter alia noted that the cause of death was due to asphyxia (fracture of Hyoid bone). After completion of the investigation, chargesheet (Ext. Ka21) was submitted before the jurisdictional Court on 11th February, 2004. The said Court committed the case to the Sessions Court at J.P. Nagar where it was registered as Sessions Trial No.155/2004. The Sessions Court on 5th August, 2004 framed charges against the appellants as under:-
“Charges
I, Mushaffey Ahmad, Addl. Sess. Judge, hereby charge you, Asar Mohammad, Asraf and Akhtar as follows:-
That you on t
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