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ALLAHABAD HIGH COURT
Surendra Vikram Singh Rathore, Anil Kumar Srivastava-II, JJ.
Usman alias Khalnayak - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 2040 of 2008 & Criminal Appeal No. 2039 of 2008
Decided On : 09-08-2016
Circumstantial Evidence - Murder - IPC 302/34, IPC 201 - [IPC 302/34, IPC 201] - The court discussed the chain of circumstances, last seen theory, and the admissibility of evidence under section 27 of the Evidence Act. It highlighted the importance of completing the chain of circumstances to prove guilt and emphasized that the last seen theory alone cannot be the sole ground for conviction. The court found the prosecution's evidence unreliable and untrustworthy, leading to the acquittal of the accused.
Fact of the Case:
The case involved the disappearance and subsequent recovery of a dead body, leading to the trial of the accused under IPC sections 302/34 and 201. The prosecution relied on circumstantial evidence to prove the guilt of the accused.
Finding of the Court:
The court found the evidence presented by the prosecution to be unreliable and untrustworthy, emphasizing the importance of completing the chain of circumstances to prove guilt. It concluded that the prosecution had failed to prove its case beyond reasonable doubt, leading to the acquittal of the accused.
Issues: The key issues revolved around the reliability of circumstantial evidence, the last seen theory, and the admissibility of evidence under section 27 of the Evidence Act.
Ratio Decidendi: The court emphasized that the last seen theory alone cannot be the sole ground for conviction and highlighted the need to complete the chain of circumstances to prove guilt. It also stressed the importance of reliable and trustworthy evidence, particularly in cases relying on circumstantial evidence.
Final Decision: The appeals were allowed, and the judgment of conviction and sentence passed by the trial court was set aside. The accused were acquitted and ordered to be released from jail.
Anil Kumar Srivastava-II, J. –
Heard Shri R.N.S. Chauhan learned counsel for the appellant and Ms. Madhulika Yadav learned A.G.A. for the State.
2. Instant appeal have been preferred against the judgment and order dated 22.8.2008 passed by learned Additional Sessions Judge, Fast Track Court No.4, Lucknow in Sessions Trial No.762 of 2005, case crime no.234 of 2001, under section 302/34 IPC and 201 IPC, Police Station Malihabad, District Lucknow, State v. Naushad and others whereby accused Naushad and Usman alias Khalnayak were convicted under section 302 IPC read with section 34 IPC and section 201 IPC and sentenced to imprisonment for life and fine of Rs.15,000/- and imprisonment for five years and fine of Rs.3,000/- respectively. Accused Babboo, Sirdar and Siraj were acquitted of charges under section 302 IPC read with section 34 and 201 IPC.
3. According to the prosecution version, a written report was lodged by complainant Gulzar on 13.8.2001 at 07.50 PM at Police station Malihabad stating that on 09.8.2001 at about 06.00PM he sent his son Munish to Naushad son of Sirdar for bringing the amount from him. Munish went to village Kahla through LBM and met Naushad at his house. Rauf, son of Razzak was also present there. They purchased 100 gms andharse from the shop of Puttan halwai. Rauf asked Munish to accompany him to Baldevkhera. Munish told Naushad that he will accompany him after getting the amount from Naushad. Naushad told Munish that he will pay the amount at Charbagh railway station. Munish and Naushad proceeded towards Kahla railway station. Rauf stayed at the house of Puttan. When Munish did not return to his house then complainant inquired about him then Rauf told him all these facts. When complainant inquired from Naushad, he told him that Munish accompanied him in local train up to Alamnagar and got down at Alamnagar. Thereafter he slept and went to Barabanki. On the basis of this information a chik FIR was lodged about disappearance of Munish.
4. On 10.8.2001, an unknown dead body was found near village Kahla on the railway line. Inquest proceedings were conducted on 10.8.2001. Postmortem was conducted on 11.8.2001 at 03.30 PM.
5. Thereafter, another application was moved by one Sharif son of Gulzar on 20.8.2001, stating that report of disappearance of Munish was lodged by his father Gulzar on 13.8.2001. Complainant Sharif came to know that unknown dead body was recovered by the police on 10.8.2001. When he inquired from the police station GRP Charbagh Lucknow and saw the shoes which were recovered near the dead body. He identified the shoes of his brother Munish. It is further stated that Naushad, Babboo, Sirdar have committed murder of his brother. On the basis of this information GD entry was made at GD No.34 dated 20.8.2001 and a case at crime no.234 of 2001 under section 302, 201 IPC was registered. Investigation was handed over to investigating officer. During investigation investigating officer arrested one accused Usman alias Khalnayak. Recovery of pant, shirt and angauchcha of deceased was made on his pointing out under section 27 of Evidence Act. Site plan was prepared. Recovered clothes were identified by Gulzar. After investigation charge sheet was submitted against the accused person namely Naushad, Babboo, Siraj, Usman alias Khalnayak and Siraj. Accused were charged under section 302, read with section 34 and 201 IPC. They denied the charge and claimed trial.
6. In order to prove its case prosecution has produced PW-1 Gulzar complainant and father of the deceased, PW-2 Sharif brother of the deceased, PW-3 Rauf who was declared hostile, PW-4 Ram Prakash Yadav who was declared hostile, PW-5 Rajjan Awasthi declared hostile, PW-6 Shahid Ali declared hostile, PW-7 Nasir declared hostile, PW-8 Barkat Ali witness of recovery of clothes, PW-9 Magre, PW-10 Usman, PW-11 Maloha Prasad who was declared hostile, PW-12 Shakir Ali declared hostile PW-13 Avinash Chandra Pandey Investigating Officer, PW-14 HC Kan
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