Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(Raj) 2381

RAJASTHAN HIGH COURT AT JAIPUR BENCH
Dalip Singh, K.S.Chaudhari, JJ.
Mushtaq Khan - Appellant
Versus
State of Rajasthan - Respondent
D.B. Criminal Appeal No.1566 of 2002 with D.B. Criminal Jail Appeal No.1016 of 2006.
Decided On : 22-10-2009

For the Appellant:Mr. A.K. Bhandari, Senior Counsel assisted by Mr. Kinsukh Jain, Advocates.
For the State: Mr.J.R. Bijarnia, Public Prosecutor.

In a criminal case, the prosecution must prove the guilt of the accused beyond reasonable doubt. Circumstantial evidence alone can be sufficient to establish guilt, but it must be strong and convincing and must lead to the only conclusion that the accused is guilty.

Headnote:
CRIMINAL APPEAL - [SECTION 302, 201 IPC] - EVIDENCE ACT, 1872 - SECTION 27 - CIRCUMSTANTIAL EVIDENCE - RELIABILITY - BURDEN OF PROOF - LAST SEEN EVIDENCE - FOOTPRINTS - RECOVERY OF ARTICLES - CONNECTING THE ACCUSED WITH THE CRIME - MEDICAL EVIDENCE - MOTIVE - SECTION 376, 377 IPC - ACQUITTAL - NO APPEAL BY STATE - ABSENCE OF MOTIVE - CONVICTION SET ASIDE - ACCUSED ACQUITTED.
Fact of the Case:

The accused-appellant was convicted for the offence of murder under Section 302 IPC and sentenced to life imprisonment with a fine of Rs. 5,000/-; in default of payment of fine to further undergo one year's rigorous imprisonment. He was also convicted for the offence under Section 201 IPC and sentenced for five years rigorous imprisonment with a fine of Rs. 3,000/-; in default of payment of fine to further undergo six months rigorous imprisonment. The prosecution alleged that the accused-appellant had committed rape and murder of the deceased and concealed the dead body. The trial court convicted the accused-appellant based on circumstantial evidence, including last seen evidence, footprints lifted from the scene of occurrence, and recovery of a piece of rope and an angle iron.
Finding of the Court:

The High Court found that the circumstantial evidence relied upon by the prosecution was not sufficient to establish the guilt of the accused-appellant beyond reasonable doubt. The court noted that the last seen evidence was contradictory and unreliable, the footprints lifted from the scene of occurrence were not properly sealed and could have been taken after the arrest of the accused-appellant, and the recovery of the rope and angle iron could not be linked to the crime. The court also noted that the medical evidence did not support the prosecution's case, and that there was no motive for the accused-appellant to commit the crime. The court further noted that the accused-appellant had been acquitted of the charges of rape and unnatural sex under Sections 376 and 377 IPC, and that the State had not appealed against the acquittal.
Issues: 1. Whether the circumstantial evidence relied upon by the prosecution was sufficient to establish the guilt of the accused-appellant beyond reasonable doubt? 2. Whether the last seen evidence was contradictory and unreliable? 3. Whether the footprints lifted from the scene of occurrence were properly sealed and could have been taken after the arrest of the accused-appellant? 4. Whether the recovery of the rope and angle iron could be linked to the crime? 5. Whether the medical evidence supported the prosecution's case? 6. Whether there was a motive for the accused-appellant to commit the crime? 7. Whether the acquittal of the accused-appellant for the offences under Sections 376 and 377 IPC had any bearing on the present case?
Ratio Decidendi: 1. The court held that the circumstantial evidence relied upon by the prosecution was not sufficient to establish the guilt of the accused-appellant beyond reasonable doubt. 2. The court found that the last seen evidence was contradictory and unreliable. 3. The court held that the footprints lifted from the scene of occurrence were not properly sealed and could have been taken after the arrest of the accused-appellant. 4. The court held that the recovery of the rope and angle iron could not be linked to the crime. 5. The court found that the medical evidence did not support the prosecution's case. 6. The court held that there was no motive for the accused-appellant to commit the crime. 7. The court held that the acquittal of the accused-appellant for the offences under Sections 376 and 377 IPC had a bearing on the present case, as it showed the absence of motive.
Final Decision: The High Court allowed the appeal filed by the accused-appellant and set aside the impugned judgment dated 02.11.2002 of conviction and sentence awarded by the learned trial court convicting the accused-appellant under Section 302 and 201 IPC. The accused-appellant was acquitted of the charges and ordered to be released forthwith, if not required in any other case.

JUDGMENT

1. -D.B.Criminal Appeal No.1566/2002This appeal has been preferred by the accused appellant Mushtaq Khan through the counsel and the accused appellant is represented by Senior Counsel Mr.Abhay Kumar Bhandari assisted by Mr.Kinsukh Jain and D.B.Criminal Jail Appeal No.1016/2006 has been sent by post from jail by the same accused who has been convicted for the offence under Section 302 and 201 I.P.C. The accused appellant has been sentenced for imprisonment for life with a fine of Rs.5,000/-; in default of payment of fine to further undergo one year's rigorous imprisonment for the offence under Section 302 I.P.C. and for the offence under Section 201 I.P.C. has been sentenced for five years rigorous imprisonment with a fine of Rs.3,000/-; in default of payment of fine to further undergo six months rigorous imprisonment.

2. The facts, in brief, are that a written report (Exhibit P-1) was lodged by PW-1 Himmat Khan with the Police Station Govindgarh on 07.11.2001 at 7:15 PM on which the FIR No.264/2001 was registered. The FIR (Exhibit P-1) reads as follows:-

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Jheku~ bapktZ lkgc iqfyl Fkkuk xksfoUnx<+
fo"k; %& esjh cPph uwj tgka dh gR;k djus ckcr~A egksn;] fuosnu gS fd eSa izkFkhZ fgEer [kka S/o Jh vcnqy d;we [kka fuoklh&gLrsM+k dk jgus okyk gwaA eSa dy fnukad 6-11-2001 dks djhcu lka; 4 cts esjh cgu ds ikl lhdj x;k gqvk FkkA vkt fnukad 7-11-2001 dks le; djhcu 1 cts esjh cM+h yM+dh lyek us Qksu ij crk;k fd NksVh yM+dh uwj tgka mez&7 o"kZ ?kj ls lqcg 8 cts ysV~hax djus x;h Fkh unh esa x;h FkhA vHkh rd ?kj ij okfil ugha vk;h pkjksa rjQ ryk'k dj yh ysfdu vHkh rd dksbZ irk ugha pyk gSaA lks eSa lhdj ls jokuk gksdj 4-30 ij gLrsM+k igqapk xako ls mRrj dh rjQ djhc 100 ehVj dh nwjh ij esjh cPph tks ysV~hax dk MCck ysdj x;h FkhA fMCck dwps ds ikl iM+k feyk mlh vk/kkj ij geus egcwc [kka] nkmn [kka vkSj vU; xzke okfl;ksa us vkl ikl ryk'k fd;k rks dwPpks dh vkM ds vUnj rktk feV~Vh [kqnh gqbZ feyhA feV~Vh dks gVk djds ns[kk rks esjh cPph uwj tgka dh yk'k feyhA fdlh O;fDr us esjh cPph dks ekj dj feV~Vh esa nck fn;kA fjiksVZ djrk gawA mfpr dkuwuh dk;Zokgh dh tkosA"

3. The police started investigation and during the course of investigation, body of the deceased was recovered and sent for post mortem. The post mortem report is Exhibit P-13. During the course of investigation, the photographs of the place of incident were taken which are Exhibit P-3 and the site plan was also prepared which is Exhibit P-4. During the course of investigation, the police also lifted the footprints from the place of incident which is Exhibit P-5. The cloths of the deceased were also seized vide Exhibit P-7 and Exhibit P-8. The arrest memo of the accused appellant is Exhibit P-9 and the shoes which he was wearing were seized vide Exhibit P-10. The medical examination of the accused appellant was conducted after his arrest and the certificate issued by the Doctor is Exhibit P-18. After the arrest of the accused appellant, the information given by the accused appellant under Section 27 of the Indian Evidence Act was recorded with regard to the article "Sariya" vide Exhibit P-24, with regard to the place of incident Exhibit P-25, with regard to the cloths Exhibit P-26 and with regard to the piece of rope vide Exhibit P-27. The site plan with regard to the place of recovery of angle iron is Exhibit P-15. After investigation, the police filed challan under Sections 302, 376, 377 and 201 I.P.C.

4. The learned trial court vide judgment dated 02.11.2002 acquitted the accused appellant of the offence under Section 376 and 377 I.P.C. for lack of evidence but convicted the accused appellant for the offence under Section 302 and 201 I.P.C. and sentenced him as indicated above.

5. The State has not preferred any appeal against the acquittal of the accused appellant for the offence under Section 376 and 377 I.P.C.. The accused appellant has preferred this appeal against his conviction and sentence for the offence under Section 302 and 201 I.P.C.

6. Learned Senior Couns

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2009 Supreme(Raj) 2381

RAJASTHAN HIGH COURT AT JAIPUR BENCHDalip Singh, K.S.Chaudhari, JJ.Mushtaq Khan - AppellantVersusState of Rajasthan - RespondentD.B. Criminal Appeal No.1566 of 2002 with D.B. Criminal Jail Appeal No.1016 of 2006.Decided On : 22-10-2009

In a criminal case, the prosecution must prove the guilt of the accused beyond reasonable doubt. Circumstantial evidence alone can be sufficient to establish guilt, but it must be strong and convincing and must lead to the only conclusion that the accused is guilty.

RAJASTHAN HIGH COURT AT JAIPUR BENCH
Dalip Singh, K.S.Chaudhari, JJ.
Mushtaq Khan - Appellant
Versus
State of Rajasthan - Respondent
D.B. Criminal Appeal No.1566 of 2002 with D.B. Criminal Jail Appeal No.1016 of 2006.
Decided On : 22-10-2009