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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
ASHWANI KUMAR MISHRA, RAJNISH KUMAR, JJ.
Mustqeem & Ors. - Appellants
Versus
State of U.P. - Respondent
Criminal Appeal No. 4209 of 2013, Criminal Appeal No. 4003 of 2013
Decided On : 24-05-2022
Indian Penal Code, 1860 - Section 302 read with Section 34 – Criminal Procedure Code, 1973 - Sections 313, 161 and 342 - Evidence Act - Section 106 - Offence of murder – Examination of accused – Examination of accused by Police - (PW-1) Village of Village informed Station House Officer of Police Station by means of a written report (Exhibit Ka-1) aged about 15 years daughter Appellant has died due - Her dead body is lying in her house. Aforementioned report further states that he (PW-1) heard in village that deceased had gone to her relatives place in Village from where she returned along with a resident of village (PW-5), son of (PW-2) - Written information was entered in GD of concerned police station and is recorded as GD entry - Chain of evidence to prove the guilt of accused is clearly broken and the possibility of an alternative hypothesis, except the one, putforth by the prosecution, cannot be ruled out - none of the ingredients of proving the charge by way of circumstantial evidence existed and, therefore, the findings of guilt returned by the trial court will have to be held as based only on assumptions. [Para 35,36]
Finding of the Court:
Evidence of affair between deceased and PW-5 or deceased having been brought by PW-5 it proceeded to hold that charge of murdering deceased on account of honour killing has been proved – Court cannot approve of conclusions drawn by trial court after minutely examining the evidence on record – Court find that none of ingredients of proving charge by way of circumstantial evidence existed findings of guilt returned by trial court will have to be held as based only on assumptions - Court are of considered opinion that judgment and order passed by the Additional District and Sessions Judge - prosecution has failed to prove charge of murder against appellants beyond reasonable doubt and sentence and conviction of accused appellants is set aside.
Result: Appeals are allowed.
JUDGMENT :
Ashwani Kumar Mishra, J.
1. Appellants in these two appeals are the parents of deceased, who have been convicted for murdering their only daughter Rehana, under Section 302 read with Section 34 IPC vide judgment and order dated 12.8.2013, passed by the Additional District and Sessions Judge, Court No.6, Moradabad, in Sessions Trial No.439 of 2011 (State Vs. Mustqeem & Khursheeda) arising out of Case Crime No.538 of 2010, Police Station Asmauli, District Moradabad and sentenced to imprisonment for life alongwith fine of Rs.15,000/- each and to undergo three months' additional imprisonment on failure to deposit the fine.
2. Sharafat (PW-1) the Village Chowkidar of Village Mawai Thakuran informed the Station House Officer of Police Station Asmauli on 24.11.2010, by means of a written report (Exhibit Ka-1), that Rehana, aged about 15 years (hereinafter referred to as ''deceased'), daughter of Mustqeem son of Hameed Teli (hereinafter referred to as ''appellant no.1') has died due to unknown reasons in the night of 23/24 November, 2010 and her dead body is lying in her house. Aforementioned report further states that he (PW-1) heard in the village that deceased had gone to her relatives place in Village Shahpur Sirpuda from where she returned alongwith a resident of the village namely Bhoora (PW-5), son of Mewaram Prajapati (PW-2), and was at her home and that matter is suspicious. Accordingly, necessary action be taken. The written information was entered in GD of concerned police station and is recorded as GD entry No.5 at 5.30 a.m. The scribe of the written report is Pooran Singh, the Village Pradhan (DW-2). On the basis of aforementioned information the inquest of the deceased was conducted.
3. Sub-Inspector Laxmi Shankar on receiving the aforesaid information reached the spot and found relatives of deceased alongwith other villagers to be present at the house of appellants. He thereafter proceeded to get the inquest (panchayatnama) of the deceased conducted. At the time of inquest certain injuries were found on the body of the deceased. However, no opinion could be given by panch witnesses regarding the nature of death i.e. whether the same is homicidal or suicidal. The concerned Sub-Inspector thereafter prepared the inquest report (Exhibit Ka-6) at 6.30 a.m. on 24.11.2010 at Village Mawai Thakuran itself. Having completed the aforesaid formality Sub-Inspector prepared the detailed report and dispatched the dead body for post-mortem.
4. The post-mortem report is Exhibit Ka-2. According to the autopsy surgeon the cause of death of deceased is asphyxia due to throttling. Age of deceased as per medical opinion was found to be 15 years. The autopsy surgeon found following four ante-mortem injuries on the body of the deceased:-
(2) Multiple abraded contusion (3cm x 2cm) in the front of neck 6 cm above the sternal notch.
(3) Abraded contusion 1cm x ½cm on the dorsum of Lt. wrist joint.
(4) Abraded contusion 4cm x 1cm on the mid of front of Rt. leg."
5. Investigation was concluded and ultimately chargesheet No.37 of 2011 was submitted. Appellants (parents of the deceased) were arrested on the charge of murdering their daughter. After submission of chargesheet cognizance was taken by the court concerned. The case was committed to the court of sessions as offence was triable by the court of sessions. The then Additional Sessions Judge, Court No.6, Moradabad charged the appellants with murder of their daughter, as a result of honour killing, under Section 302/34 IPC, vide order dated 5.5.2011. The appellants denied the charge and demanded trial.
6. Prosecution in order to bring home the charge so framed adduced documentary evidence i.e. written report (Exhibit Ka-1), postmortem report (Exhibit Ka-2), panchayatnama (Exhibit Ka-6), chargesheet (Exhibit Ka-5). The prosecution has also adduced Sharafat (PW-1), M
Point of Law : Any weakness in the defence case would not obviate the prosecution from establishing the charge based on circumstantial evidence.
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In criminal cases based on circumstantial evidence, the prosecution must establish a complete and unbroken chain of evidence that conclusively points to the guilt of the accused, and mere suspicion i....
The court established that circumstantial evidence and motive for honour killing justified the conviction for murder, while mitigating factors led to the commutation of the death penalty to life impr....
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