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ALLAHABAD HIGH COURT
Imtiyaz Murtaza, Vishnu Chandra Gupta, JJ.
Naviullah @ Magroo -Appellant
Versus
State of U.P. -Respondent
Criminal Appeal No. 853 of 2005
Decided On : 04-07-2013
CRIMINAL - EVIDENCE ACT, 1872 - SECTION 24 - CONFESSION - VOLUNTARINESS - JUDICIAL CONFESSION - RECORDING OF - PROCEDURE - SECTION 164 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - COMPLIANCE - CIRCUMSTANTIAL EVIDENCE - CHAIN OF INCRIMINATING CIRCUMSTANCES - COMPLETENESS - INFERENCE OF GUILT - TEST - LAST SEEN THEORY - APPLICATION - RECOVERY OF INCRIMINATING ARTICLES - CONNECTION WITH CRIME - BURDEN OF PROOF - SEROLOGIST REPORT - RELEVANCE - ADMISSIBILITY OF CONFESSION - SECTION 463 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - APPLICABILITY.
Fact of the Case:
The appellant was convicted under Section 302 IPC for the murder of a 9-year-old girl. The prosecution's case was based on circumstantial evidence, including the last seen theory, recovery of a scissor from the appellant's shop, and a judicial confession recorded under Section 164 Cr.P.C. The appellant challenged the conviction, arguing that the circumstantial evidence was not complete and the confession was not voluntary.
Finding of the Court:
The court held that the prosecution had failed to prove its case beyond reasonable doubt. The last seen theory was not applicable as there was a wide gap of time between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead. The recovery of the scissor from the appellant's shop was not connected with the crime. The judicial confession was not voluntary as it was recorded in violation of the mandatory provisions of Section 164 Cr.P.C. The court also held that the serologist report was relevant and should have been considered by the trial court.
Issues: 1. Whether the circumstantial evidence was sufficient to prove the guilt of the appellant beyond reasonable doubt? 2. Whether the judicial confession was voluntary and admissible in evidence? 3. Whether the serologist report was relevant and should have been considered by the trial court?
Ratio Decidendi: 1. The court held that the circumstantial evidence was not sufficient to prove the guilt of the appellant beyond reasonable doubt. The last seen theory was not applicable as there was a wide gap of time between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead. The recovery of the scissor from the appellant's shop was not connected with the crime. 2. The court held that the judicial confession was not voluntary and admissible in evidence. It was recorded in violation of the mandatory provisions of Section 164 Cr.P.C. 3. The court held that the serologist report was relevant and should have been considered by the trial court.
Final Decision: The appeal was allowed, the conviction was set aside, and the appellant was acquitted.
Challenge in the present appeal is to the Judgment and order dated 10.05.2005, passed by IV Additional Sessions Judge, Gonda in Sessions Trial no.59 of 2002 arising out of Case Crime No.132 of 2000 Police Station Sadulla Nagar, District Gonda (Present District Balrampur), whereby appellant-accused was convicted under Section 302 IPC and sentenced to life imprisonment with fine of Rs.10,000/- and two years rigorous imprisonment in default stipulation.
2. The brief conspectus of prosecution version shun unnecessary details is such that P.W.1 Masiuddin S/o Zhau R/o Village Ali Kulhiya, Pure Kulhiya, P.S. Sadulla Nagar the then District Gonda now Balrampur lodged a report at Police Station Sadulla Nagar on 13.03.2000 at 8.15 a.m., got written by Majibullah Siddiqui of Village Newada, that his daughter Reshma Bano aged about 9 years left home towards North at about 7.00 PM on 11.03.2000 to purchase biscuit from a nearby kiosk (Dabli) but disappeared in front of the house of Tikai Verma, he then alongwith other villagers went in search of his daughter but could not found till the morning of 13.03.2000 when he found the mutilated cadaver of his daughter in the sugarcane field of Tikai Verma. The chik FIR no.28 (Ext.Ka10) was prepared by Head Moharrir Ravi Pratap Singh (P.W.7) at P.S. Sadulla Nagar on 13.03.2000 at 8.15 AM and Case Crime No.132 of 2000 was registered under Section 302, 201 I.P.C. against unknown miscreant, the text of which was entered in GD no.16 (Ext.Ka-9); SO Vijay Bahadur Singh has been entrusted the investigation and after collecting other material and completing requisite procedure of investigation submitted charge sheet under Sections 302, 201 and 376 I.P.C. The case was committed to the court of Sessions.
3. The Sessions Judge has framed charges against the appellant under Sections 302, 201 and 376 I.P.C. The case of the appellant was of false implication and claimed trial. The prosecution in order to prove its case examined eight witnesses. P.W.1 Masiuddin (father of deceased), P.W.2 Ramzan Ali (real paternal uncle of deceased), P.W.3 Rabia (mother of deceased), P.W.4 Nur Mohammad (witness of memo of recovery of excreta of deceased & plain earth, scissor, cloth of appellant, cloth of deceased, plain & blood soaked earth), P.W.5 Dharm Raj (last seen witness), P.W.6 Indra Dev Dubey A.C.J.M. (recorded statement of appellant u/s 164 Cr.P.C.), P.W.7 Ravi Pratap Singh (scribe of chik FIR, GD & appeared as secondary witness for I.O. Vijay Bahadur Singh) and P.W.8 Dr.P.S.Singh (conducted post mortem of deceased); the appellant has produced two witnesses D.W.1 Home Guard no. 2312 Amin Ahmad (he alongwith a constable took appellant to court on 15.03.2000 at 10.15 a.m.) and D.W.2 Mahesh Dutt Tiwari, Bandi Rakshak, District Jail Gonda (produced Gate Book of Jail filed a copy of Jail register dated 15.03.2000, 19.20 hrs. (Ext.Kha-1).
4. The learned Sessions Judge convicted appellant under section 302 IPC and acquitted under section 376 and 201 IPC. Hence this appeal.
5. We have heard Sri Shailesh Kumar Srivastava and Sri C. M. Shukla Advocate for the appellant and Ms. Ruhi Siddiqi learned AGA for the State.
6. The Learned Counsel for appellant submitted that there is no direct evidence in the case. The chain of incriminating circumstances is not complete.The recoveries do not connect appellant with the crime.The Sessions Judge wrongly placed reliance on judicial confession which has been recorded in contravention of mandatory provisions of law.
7. Per contra learned AGA has supported the findings recorded by the trial court.
8. In order to appreciate the rival contentions of the counsel for the parties it is necessary to examine the evidence on record.
9. PW-1 Masiuddin deposed that on 11.3.2000 at about 7:00 his daughter Reshma Bano aged about 9 years, had gone to purchase biscuit from the shop of Nabiullah alias Mangru. A little earlier his eldest daughter Sakina Bano had gone to purchase Pan from the shop
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