PW-13, Ramnath, Investigation Officer has stated
that he got conducted the potency test of accusedpersons.
Though the prosecution has not produced and
proved the report of potency test of the accusedpersons
but only because of non-production of the test
reports it cannot be presumed that accused-appellants
are unfit to commit the offence of Section 377 of IPC.
To our mind, the above circumstance goes against the
accused-appellants.
IN THE HIGH Court OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR
D.B. Criminal Appeal No. 72/2011
Mohammad Arsad @ Layak V State of Rajasthan
PRESENT
MR. JUSTICE AJAY RASTOGI
MR. JUSTICE DINESH CHANDRA SOMANI
Citation:2017 CRLJ 684 Raj
This Criminal Appeal No. 72/2011 has been filed
under Section 374 of CrPC against the judgment of
conviction and order of sentence dated 26.11.2010
passed by the learned Additional Sessions Judge (Fast
Track) No. 2, Bharatpur Camp Kaman in Sessions Case No.
32/2008 whereby the accused-appellants have been
convicted under Sections 364, 377, 302/34 & 201 of IPC
and sentenced as follows:
-For the offence under Section 364 of IPC
sentenced for ten years' rigorous
imprisonment with fine of Rs. 2,000/- each
and in default of payment of fine to further
undergo one year's rigorous imprisonment.
-For the offence under Section 377 of IPC
sentenced for ten years' rigorous
imprisonment with fine of Rs. 2,000/- each
and in default of payment of fine to further
undergo one year's rigorous imprisonment.
-For the offence under Section 302/34 of IPC
sentenced for life imprisonment with fine of
Rs. 5,000/- each and in default of payment of
fine to further undergo one year's rigorous
imprisonment.
-For the offence under Section 201 of IPC
sentenced for five years' rigorous
imprisonment with fine of Rs. 1,000/- each
and in default of payment of fine to further
undergo six months' rigorous imprisonment.
The substantive sentences were ordered to run
concurrently.
Prosecution story in brief is that on 10.06.2007,
the complainant, Noor Mohammad submitted a written
report (Ex.P-1) to Damodar (PW-14), Assistant Sub
Inspector of police at the place of occurrence stating
therein that one Kalaam, Sayaboo, Tahir, and Asru
introduced in our village Kharbar, one Maulana named
Arsad to be well known to them, then the villagers on
their recommendation, appointed Arsad for imamat in
mosque. Arsad performed imamat in village mosque for a
period of one year. Thereafter, he left imamat and
went away before one month, after taking his salary.
That in the intervening night of 08.06.2007 and
09.06.2007 at about 12:00 AM, Buddan, Fazzu, Maulana
Arsad, Anwar, Mufti Azam and one other man armed with
weapons came in a white coloured Esteem Car No. DL-2C-
0098 and one more car which was parked on Gadhaner
Road. Aforesaid accused-persons kidnapped my minor
son, Irfan. Upon raising voice by Irfan, I, along with
Azeem, Hassan and other villagers reached to save Irfan
from accused-persons but they forcibly dragged Irfan
inside the car, opened fire and fled. Thereafter, they
made a search for three days, then dead body of Irfan
was discovered muffed in canal which is 100 meters away
from Gadhaner Road.
That on the basis of above written report, FIR No.
113/2007 was registered at Police Station Pahari,
District Bharatpur for the offences under Sections 147,
148, 149, 364, 302, 201 and 336 of IPC and
investigation commenced. After completion of
investigation, the Police filed charge-sheet against
accused-appellants under Sections 364, 302, 201, 120-B
and 377 of IPC. The trial Court framed charges against
the appellants for the offence under Sections 120-B,
364, 377 alternatively 377/34, 302 alternatively 302/34
and 201 of IPC. Charges were read over and explained to
the accused-appellants who pleaded not guilty and
sought to be tried.
In order to support its case, prosecution examined
16 witnesses and exhibited 27 documents.
Thereafter, learned trial court put oral evidence
of the prosecution witnesses and documentary evidence
produced by the prosecution to the accused-appellants
under Section 313 of CrPC. In reply to the prosecution
evidence, the accused-appellants stated that the
statements of witnesses are not true, there is
animosity between the complainant, Noor Mohammad and
other villagers and because of that Irfan was murdered
and they have been falsely implicated in the alleged
crime. The appellants did not produce any witness in
defence. After completion of trial, the learned
trial court acquitted the accused-appellants from the
charge of Section 120-B of IPC and convicted them for
the offence under Section 364, 377, 302/34 and 201 of
IPC and sentenced them as indicated hereinabove.
Being aggrieved with the judgment of conviction
and order of sentence awarded to the accusedappellants,
they preferred the present appeal before
this Court against the judgment of learned trial court
dated 26.11.2010.
Mr. Anshuman Saxena, learned counsel for the
accused-appellants submitted that there are several
infirmities and contradictions in the statement of
prosecution witnesses, therefore, no reliance can be
placed on the testimony of such witnesses. The
prosecution witnesses have suppressed the genesis of
the occurrence and have changed their statements at
various places, therefore, the prosecution witnesses
cannot be treated as credible and reliable witnesses.
Therefore, the conviction and sentence based on the
statements of such witnesses is not sustainable and is
liable to be quashed and set aside.
Learned counsel for the accused-appellants also
submitted that the case rests upon circumstantial
evidence and golden rule for the same is that there
should be no missing link in the chain of circumstances
and all the chain of circumstances should be completed,
but in the present case, the prosecution has miserably
established any of the circumstances. Learned counsel
also submitted that in the case of circumstantial
evidence, conviction cannot be based only upon the
theory of last seen together.
Learned counsel for the accused-appellants further
submitted that there is material delay in lodging the
FIR and the same has not been explained properly and it
reveals that the case is falsely fabricated against the
appellants. It is pertinent to mention that it is
unbelievable that where a person has been kidnapped
through fear of weapons by opening fire in presence of
numerous persons and in such a case FIR is lodged after
two days.
Learned counsel for the accused-appellants also
submitted that the learned trial court has neither
properly considered nor critically examined the
statements of prosecution witnesses and in routine has
discussed the same and passed the impugned judgment of
conviction which is against the criminal jurisprudence,
thus, the conviction of the accused-appellants is bad
in law.
Learned counsel for the accused-appellants further
submitted that recovery of slipper and cap of the
deceased have falsely been connected with the
appellants because the said recoveries have been made
from the place which is near to the scene of crime
which was already known and detected in site plan,
Ex.P-12, therefore, the alleged information of
appellants cannot be taken as adverse circumstance
against them in the light of Section 27 of the Evidence
Act. It is also argued that the learned trial court
has failed to appreciate the statements of appellants
recorded under Section 313 of CrPC in which they
specifically stated the reason of their false
implication and prayed to accept the appeal, setting
aside the impugned judgment of conviction and order of
sentence and to acquit the accused-appellants for the
charges levelled against them.
Learned Counsel for the accused-appellants placed
reliance on :
1. 1994 Supp (2) Supreme Court Cases 372
Arjun Marik & Ors. Vs. State of Bihar
2. (2002) 8 Supreme Court Cases 45
Bodhraj @ Bodha & Ors. Vs. State of Jammu and
Kashmir
3. (2005) 12 Supreme Court Cases 438
Jaswant Gir Vs. State of Punjab
4. 2008 (3) RLW 2135 (SC)
Sattatiya @ Satish Rajanna Kartalla Vs. State of
Maharashtra
5. AIR 2014 Supreme Court 2548
Krishnan @ Ramasamy & Ors. Vs. State of Tamil
Nadu
On the other hand, Mr. S.K. Saini, learned Public
Prosecutor has supported the impugned judgment and
submitted that the learned trial court has rightly
convicted the accused-appellants on the basis of cogent
and reliable evidence which prove their guilt beyond
reasonable doubt.
Learned Public Prosecutor also contended that the
accused-appellants can be convicted only on last seen
theory because the time-gap between the point of time
when the appellants and the deceased were seen last
alive and when the deceased, Irfan was found dead is so
small that possibility of any person other than the
accused-persons being the author of the crime became
impossible.
Learned Public Prosecutor further contended that
the complainant is an illiterate person of rural
background. His son was kidnapped in the intervening
night of 8
th and 9
th, June 2007. Marriage of his two
elder sons was fixed to be solemnized on 09.06.2007 in
another village, baarat of his sons proceeded in
morning and returned in the night of 09.06.2007. In the
meantime and after the return of baarat, he and other
persons continued the search of the deceased and
informed the police through Sarpanch on 10.06.2007 soon
after dead body of the deceased was discovered. In
this way, the prosecution explained the delay in
lodging the FIR. Therefore, the delay occurred is not
fatal to the prosecution's case. The prosecution has
proved the offence against the accused-appellants
beyond reasonable doubt and prayed to dismiss the
appeal being devoid of merits.
` We have given our anxious consideration to the
rival submissions of learned counsel for the accusedappellants
and learned Public Prosecutor for the State
and perused the material on record.
PW-1, Noor Mohammad is father of the deceased,
Irfan and the FIR was registered on his written report
Ex.P-1. According to the statement of PW-1, his two
sons were going to marry before about 14 months, thus,
they were busy in that programme. At about 12:00 hours
in midnight of date 8
th and 9
th, Arsad, Anwar and three
others came in a white coloured Esteem car of Delhi
number, parked it at some distance from the road and
came to his house armed with country made pistol
(Katta) and gun. These persons kidnapped his son,
Irfan aged about 13-14 years. The witness himself,
Hasan, Azeem and many other persons saw the accusedpersons
taking Irfan with them. They ran after them to
save the child but the accused-persons dragged the
child forcibly in the car, opened fire and fled. They
made a search of the child. Dead body of the child was
discovered in the side of canal on 10
th at about 11-12
hours. They saw that the dead body was swollen, fowl
smelling and bleeding in anus of the child. Soon after
that police was informed and the police came on the
spot where he gave written report Ex.P-1.
PW-2, Azeem is brother-in-law of the complainant
who gave the same statement as given by PW-1, Noor
Mohammad. The witness also stated that he himself,
Hassan, Noor Mohammad and others ran after the accusedpersons
to save Irfan but the accused-persons opened
fire, thus, they returned and thereafter, they became
busy in the affairs of the marriage of his nephews.
PW-3 Chander Khan, PW-4 Waheed, PW-5 Fakru and PW-
6 Hassan are the neighbours of the complainant Noor
Mohammad who witnessed the incident of kidnapping of
Irfan by accused-appellants in the midnight on gun
point and supported the statement of PW-1, Noor
Mohammad and PW-2, Azeem.
PW-11, Sahaji is wife of the complainant, Noor
Mohammad and mother of Irfan, the deceased. This
witness has stated that they were busy in the marriage
function of her sons Arsad and Irsad. In the night at
about 12:00 AM, Arsad, Anwar and three others dragged
forcibly her younger son, Irfan aged 13-14 years in
their car on gun point and fled. The witness also
stated that Arsad taught Quran to her son Irfan in
mosque. Irfan told her that before two months of the
incident, Arsad committed sodomy with him in night.
Then she scolded Arsad and asked him to leave the
place. He left the place and because of that, he
kidnapped her son Irfan and committed his murder.
PW-2, Azeem is brother-in-law of complainant, Noor
Mohammad and he was in the village because of marriage
of his two nephews, therefore, his presence in the
house of the complainant at the time of incident of
kidnapping of Irfan is natural. The witness has no
animosity with the accused-persons. Therefore, there is
no reason to disbelieve on the evidence given by PW-2,
Azeem merely on the ground of relationship with the
complainant.
PW-3 Chander Khan, PW-4 Waheed, PW-5 Fakru and PW-
6 Hassan are residents of village Kharbar and
neighbours of the complainant. There is no evidence of
animosity of the witnesses with the accused-appellants
and presence of these witnesses at the time of incident
is natural, therefore, evidence given by them cannot be
disbelieved.
PW-8, Dr. Naresh Yadav and PW-10, Dr. Sunil Sharma
performed the autopsy over the dead body of the
deceased, Irfan as the members of Medical Board and
prepared post-mortem report, Ex.P-14. According to the
post-mortem report, Ex.P-14 and the evidence given by
PW-8 and PW-10, multiple abrasions (nail marks) with
contusions were found around the mouth and nostrils of
the deceased. The body of the deceased was partially
decomposed, fowl smelled, swollen with peeling skin &
black-brownish coloured body. The witnesses also found
tears in anus and in their opinion, the cause of death
is due to asphyxia with consistent anal sexual
intercourse which is sufficient to cause death in the
ordinary course of nature. The death of the deceased
was caused within 36 to 72 hours prior to post-mortem
examination. Therefore, it is proved that Irfan died a
homicidal death.
PW-14 Damodar, ASI in Police Station, Pahari on
10.06.2007, has stated that he reached in the jungle of
village Kharbar Mazra on information where Noor
Mohammad (PW-1) gave him a written report, Ex.P-1. He
sent the report to police station with Constable
Bhudev. Dead body of complainant's son, Irfan was
partially muffed in the ground of canal. He prepared
Panchnama Ex.P-2, memo of condition of dead body Ex.P-3
and memo of delivery of dead body Ex.P-4. He took
samples of blood smeared and control soil from the
spot, sealed the same and marked “A” vide memo, Ex.P-5.
Vide memo Ex.P-6, he seized pajama (pantaloon) of the
deceased, two pieces of naada, one blue coloured ball
pen and a handker chief, produced by complainant, Noor
Mohammad stating the same to be belongings of the
deceased. He also seized one more ball pen and
disposable glasses of the deceased vide memo, Ex.P-7.
He prepared site plan, Ex.P-12 and conducted postmortem
of the deceased from the Medical Board. Place
of recovery of dead body was photographed. In crossexamination,
the witness stated that he did not prepare
site plan of house of Noor Mohammad. They had no
information about the incident prior to 10.06.2007.
PW-7, Subba also proved inquest report Ex.P-2,
memo of condition of dead body Ex.P-3, seizure memo of
blood smeared soil and control soil Ex.P-5, seizure
memo of belongings of deceased, Irfan Ex.P-6, seizure
memo of pen and disposable glasses Ex.P-7, site plan
Ex.P-12 and Ex.P-13.
PW-15, Bhoop Singh stated that he took
photographs, Ex.P-21 to Ex.P-26 on 10.06.2007 on police
request through digital camera.
PW-16, Harmukh Lal, ASI in police Station, Pahari
on 10.06.2007, has stated that on that day Constable
Bhudev Singh brought written report, Ex.P-1 from the
place of incident, whereupon, he registered FIR No.
113/2007 which is Ex.P-27.
PW-9 Ramkishan was Head Constable and Maalkhana
Incharge of Police Station, Pahari, has stated that
Investigation Officer deposited four sealed packets on
10.06.2007 and two sealed packets marked “E” and “F” on
27.06.2007 in Maalkhana and the entries were made in
Maalkhana Register, Ex.P-5.
PW-12, Siyaram, Constable proved the arrest memo,
Ex.P-16 and Ex.P-17A of accused-persons.
PW-13, Ramnath, the then SHO of Police Station,
Pahari, Second Investigation Officer of the case, gave
a detailed account of the investigation conducted by
him and proved the informations, Ex.P-17 and Ex.P-18
given by the accused-appellants under Section 27 of the
Evidence Act, recovery of cap of the deceased vide
Ex.P-9 at the instance of accused-appellant No.2,
Mohammad Tariq Anwar, in consequence of information
given by him and site plan of place of recovery of cap,
Ex.P-11, recovery of slippers of the deceased vide
Ex.P-8 at the instance of accused-appellant No. 1,
Arsad, in consequence of information given by him and
site plan of place of recovery of slippers Ex.P-10. The
witness also stated that vide Ex.P-13, the accusedpersons
certified the place of occurrence where they
committed sodomy with the deceased, killed him and
muffed his body in the earth, in consequence of
informations, Ex.P-19 and Ex.P-20, given by them under
Section 27 of the Evidence Act.
From the evidence given by PW-1, PW-2, PW-3, PW-4,
PW-5, PW-6 and PW-11, it is proved that the accusedappellant
No. 1, Mohammad Arsad performed imamat in the
village mosque for about a year and he left the job of
imamat and village before a month of the incident.
Accused-appellant No. 2, Mohammad Tariq Anwar was also
an Imam in the mosque of neighbouring village Hujra and
he used to come to the appellant No. 1 to meet.
Therefore, both the accused-appellants were known to
the above prosecution witnesses. It is also not in
dispute and it is proved by the evidence given by PW-1
to PW-6 and PW-11 that marriage of two elder sons of
the complainant was going to be solemnized on
09.06.2007 and the complainant arranged a dinner on
08.06.2007 on the eve of marriage. The baarat of sons
of complainant proceeded to village Punhana in the
morning of 09.06.2007 and returned in the late evening
on the same day. The case of the prosecution is based
on following circumstances:
A. Motive
B. Last seen theory
c.Recovery of slippers and cap of the deceased at the
instance of accused-appellants.
A:- Motive :
It is not in dispute and is proved from the
evidence of PW-1 to PW-6 and PW-11 that appellant No. 1
was appointed Imam in the mosque of complainant's
village to perform imamat. From the statement of PW-1,
Noor Mohammad and PW-11, Sahaji, it is proved that the
deceased, Irfan used to go to appellant No. 1 in mosque
to study the Quran. According to the statement of PW-
11, the deceased Irfan told her before two months of
the incident that appellant No. 1 committed sodomy with
him. Thereafter she (PW-11) scolded the appellant No.
1 and asked him to leave the place. According to the
statement of PW-5, Fakru given in his crossexamination,
appellant No. 1 used to beat, abuse and do
villainy with the children to whom he used to teach.
According to the statement of PW-6, Hassan, he heard
that appellant No. 1 beats the children and is indulged
in wrong-doings with children and because of that he
was removed from the work of imamat. The above
evidence puts a question mark on the character of the
appellant No. 1. From the evidence of PW-8, Dr. Naresh
Yadav, PW-10, Dr. Sunil Sharma and post-mortem report
of the deceased, Ex.P-14, it is proved that the
deceased, Irfan was subjected to consistent anal sexual
intercourse before his death.
PW-13, Ramnath, Investigation Officer has stated
that he got conducted the potency test of accusedpersons.
Though the prosecution has not produced and
proved the report of potency test of the accusedpersons
but only because of non-production of the test
reports it cannot be presumed that accused-appellants
are unfit to commit the offence of Section 377 of IPC.
To our mind, the above circumstance goes against the
accused-appellants.
B:- Last seen theory:
From the evidence given by PW-1, PW-2, PW-3, PW-
4, PW-5, PW-6 and PW-11, it is proved that in the
intervening night of 8
th and 9
th June of 2007 at about
12:00 AM, the accused-appellants and three others came
to the village of the complainant in a white Esteem Car
of Delhi number, parked the car at some distance from
the road and came to the house of the complainant armed
with country made pistol (Katta) and gun. These
persons kidnapped Irfan aged about 13-14 years who is
son of the complainant, Noor Mohammad. After hearing
voice of Irfan, PW-1, PW-2, PW-3, PW-4, PW-5 and PW-6
tried to save the child, Irfan from the accused-persons
but the accused-persons dragged the child forcibly in
their car, opened fire and fled. It is argued that
regarding genesis of the occurrence, there are
contradictions in the statements of prosecution
witnesses recorded by the Investigation Officer under
Section 161 of CrPC and statements recorded in the
Court. It is pertinent to note that all the eye
witnesses of incident of kidnapping of the deceased
appears to be illiterate or semi-literate and are of
rural background, therefore, some contradictions are
natural but the contradictions are not so material,
which may impress us to throw the prosecution case in
whole. It is also pertinent to note that it is not the
case of accused-appellants that they did not go to the
house of the complainant and they were present at any
different place at the relevant time. Moreover, it was
suggested to PW-1, Noor Mohammad in his crossexamination
that he invited the appellants for dinner
on the eve of marriage of his sons. PW-1, Noor Mohammad
however, denied the suggestion that he invited the
appellant for the dinner. Almost the same suggestion
was given to PW-11, Sahaji in her cross-examination and
she also denied the suggestion having invited the
accused-appellants for dinner. In this way, accusedappellants
indirectly admitted their presence at the
house of complainant at the relevant time, thus, it is
proved that accused-appellants went to the house of
complainant, Noor Mohammad in the intervening night of
8
th and 9th June, 2007 and kidnapped his minor son, Irfan
aged 13-14 years.
After the incident of aforesaid kidnapping of the
deceased Irfan, he was never seen anywhere with any
person and his dead body was discovered in the jungle
on 10.06.2007 at about 11-12 hours in the canal which
is about 600-700 meters away from the house of the
complainant. This fact is proved from the statements
of PW-1 Noor Mohammad, PW-2 Azeem, PW-5 Fakru, pW-6
Hassan, PW-7 Subba, PW-11 Sahaji, PW-14 Damodar and
documentary evidence i.e. written report Ex.P-1,
inquest report Ex.P-2, memo of condition of dead body
Ex.P-3 and site plan Ex.P-12.
From the post-mortem report, Ex.P-14 and
statements of PW-8, Dr. Naresh Yadav and Pw-10, Dr.
Sunil Sharma, it is proved that autopsy over the dead
body of Irfan was performed on 10.06.2007 at about 3:50
PM and probable time of death of Irfan was within 36-72
hours at the time of post-mortem examination.
Therefore, the time of kidnapping of the deceased falls
within the probable time of death mentioned in the
post-mortem report, Ex.P-14.
In view of the discussions made above, it is
proved that the deceased, Irfan was last seen in the
intervening night of 8
th and 9
th June of 2007 at about
12:00 AM with the accused-appellants in the village
Kharbar when he was kidnapped by the appellants and
three others and was forcibly dragged in a Esteem Car
in which the accused-appellants came to the house of
the complainant and fled from there. The body of the
deceased was recovered from the side of canal which is
situated about 600-700 meters away from the house of
the complainant. The said recovery was made on
10.06.2007 at about 11-12 hours. In this way, there is
a gap of almost 36 hours only between the point of time
when the accused-appellants and the deceased, Irfan
were seen last alive and when the deceased is found
dead. The said time gap is so small that possibility
of any person other than the accused-appellants being
the author of the crime becomes almost impossible. This
circumstance of last seen goes against the accused-
appellants.
It is pertinent to note that the complainant has
named five persons including both accused-appellants in
his report, Ex.P-1 but after investigation, the police
did not charge-sheet the remaining three persons
finding them to be not involved in the incident,
therefore, it is not necessary to discuss in the
judgment, the role of other three persons.
C:- Recovery of slippers and cap of the deceased
at the instance of accused-appellants:
From the statement of PW-14, Damodar who is the
first Investigation Officer, it is proved that on
10.06.2007, he seized one ball pen from the spot vide
Ex.P-7 alleged to be of accused-appellant No. 1,
Mohammad Arsad. At the time of seizure, PW-1, Noor
Mohammad claimed the ball pen to be of appellant,
Arsad. But no other prosecution witness stated that the
ball pen seized from the spot vide Ex.P-7 was of
accused-appellant No.1 Mohammad Arsad or was ever seen
with him and he can identify the pen to be of accusedappellant
No.1. To our mind, only on this weak
evidence, the accused-appellant No. 1 cannot be
connected with the crime of which he has been charged.
According to the statement of PW-12, Siyaram,
accused-appellant No.1 and 2 were arrested on
18.06.2007 vide Ex.P-16 and Ex.P-17A respectively .
According to the statement of PW-13, Ramnath
Investigation Officer, he seized one pair of slippers
of deceased at the instance of appellant No. 1,
Mohammad Arsad vide Ex.P-8 on 27.06.2007 in consequence
of information given by him vide Ex.P-18 and site plan
of place of recovery Ex.P-10 was prepared. According
to the witness, he also seized one cap of the deceased
on 27.06.2007 at the instance of appellant No. 2,
Mohammad Tariq Anwar vide memo Ex.P-9, in consequence
of information Ex.P-17 given by him under Section 27 of
the Evidence Act and site plan of place of recovery,
Ex.P-11 was prepared. The above statement is supported
by the evidence given by PW-1, Noor Mohammad.
From perusal of the site plan of place of
occurrence, Ex.P-12 prepared on 10.06.2007, site plan
of place of recovery of slippers, Ex.P-10 prepared on
27.06.2007 and site plan of place of recovery of cap,
Ex.P-11 prepared on 27.06.2007, it reveals that the
places of recoveries of slippers and cap of the
deceased, Irfan are very near to the place of recovery
of his dead body, which is already known to the police
personnels, the complainant and other witnesses of site
plan, Ex.P-12 and other memos i.e. Ex.P-2, Ex.P-3,
Ex.P-5, Ex.P-6, Ex.P-7 as they have visited the place
on 10.06.2007. Therefore, the recoveries of pair of
slippers and cap of the deceased on 27.06.2007 do not
inspire confidence and the alleged informations of the
appellants cannot be taken as adverse circumstance
against them.
Delay in lodging FIR :
It is argued by learned counsel for the appellants
that there is material delay in lodging the FIR and the
same has not been explained which is fatal to the
prosecution.
As discussed above, it is evident that the
complainant is an illiterate person of rural
background. Marriage of his two elder sons was fixed to
be solemnized on 09.06.2007 in another village Punhana.
The deceased, Irfan was kidnapped in the intervening
night of 8
th and 9
th June, 2007 at about 12:00 AM.
Baarat of complainant's sons proceeded in morning and
returned in the late evening of 09.06.2007. From the
evidence available on record, it is not in dispute that
the village of the complainant is 15 kilometers away
from Police Station, Pahari and about 3 kilometers away
from Police Out Post (Police Chowki).
According to the prosecution, the deceased was
kidnapped from his house in the intervening night of 8th
and 9
th June of 2007. It is not in dispute that the
police was not informed soon after the incident of
kidnapping, rather the police was informed on
10.06.2007, i.e. after discovery of the dead body of
Irfan.
From the statements of PW-1, Noor Mohammad and PW-
2, Azeem, they started searching for the deceased soon
after his kidnapping and after sometime became busy in
departure of baarat and in the meantime continued the
search. The police was informed through Sarpanch on
10.06.2007 soon after the dead body was discovered. In
the circumstances of the present case, the delay of
about 36 hours occurred in lodging the FIR due to
aforesaid reasons cannot be said to be unusual because
a proper explanation has come out for the said delay.
Therefore, the plea of delayed FIR has been rightly
held to be without any substance.
In 1994 Supp (2) Supreme Court Cases 372, Arjun
Marik & Ors. Vs. State of Bihar (supra), according to
the informant (PW-6), the accused-persons came to the
house of deceased persons on 19.07.1985 to raise
further loan to purchase buffaloes and the deceased was
not agreeable to advance them further loan. It is said
that the accused-appellants stayed at the house of
deceased persons to settle their previous account in
morning & were served meals in the night. The accusedpersons
were lodged in a room on the upper storey of
the house for the overnight stay, while deceased
persons slept in the varandah adjacent to the said
room. Next morning at about 6:00 AM, the house owner
and his wife were found lying dead in a pool of blood
and theft also took place. Hon'ble Supreme Court
observed that the evidence that the appellant had gone
to the deceased in the evening of 19.07.1985 and had
stayed in the night at the house of deceased persons is
very shaky and inconclusive.
In (2002) 8 Supreme Court Cases 45, Bodhraj @
Bodha & Ors. Vs. State of Jammu and Kashmir (supra),
Hon'ble Supreme Court has held that last seen theory
comes into play where the time-gap between the point of
time when the accused and the deceased were seen last
alive and when the deceased is found dead is so small
that possibility of any person other than the accused
being the author of crime becomes impossible.
In (2005) 12 Supreme Court Cases 438, Jaswant Gir
Vs. State of Punjab (supra), the main incriminating
fact relied upon was that the deceased was last seen by
PW-14 in the company of the appellant and the other
accused and that he was given lift in the vehicle
belonging to the appellant. The destination of the
deceased was Pehwa, whereas the vehicle had come from
Pehwa and was proceeding towards Devigarh which is in a
different direction. Hon'ble Supreme Court observed
that there is no apparent reason why the deceased would
have chosen to go in the vehicle which was proceeding
to some other destination and there is considerable
time gap between the deceased boarding the vehicle of
the appellant and the time when PW-11 found the dead
body. In the absence of any other links in the chain
of circumstantial evidence, it is not possible to
convict the appellant solely on the basis of last seen
evidence, even if the version of PW-14 in this regard
is believed.
In 2008 (3) RLW 2135 (SC), Sattatiya @ Satish
Rajanna Kartalla Vs. State of Maharashtra (supra),
Hon'ble Supreme Court found that witness of “last seen”
was untrustworthy and his evidence is full of
contradictions, place of recovery of weapons was open
place where everybody had access and the evidence of
hawker could not be believed, thus, allowed the appeal
and ordered to acquit the accused-appellant.
In AIR 2014 Supreme Court 2548, Krishnan @
Ramasamy & Ors. Vs. State of Tamil Nadu (supra), as
per the prosecution story, the deceased was last seen
on 4
th April, 2004 in the company of accused-persons
during festival at temple and the body of the deceased
was taken from borewell by the fire service personnels
after more than seven days. Hon'ble Supreme Court
found that there is no other positive material on
record to show that the deceased was last seen together
with the accused and during intervening period of seven
days. There was nobody in contact with the deceased,
thus, allowed the appeal of accused-persons and
directed to release them.
Because of difference in facts and circumstances
of the case, the cases cited by the learned counsel for
the appellants are not of much help to the appellants.
Moreover, it reveals that the accused-persons can be
convicted only on the last seen theory, provided the
time-gap between the point of time when the accused and
the deceased were seen last alive and when the deceased
is found dead is so small that possibility of any
person other than the accused-person being the author
of the crime becomes impossible.
The appellants in their statements recorded under
Section 313 of CrPC have stated that the statements of
witnesses are not true. There is animosity between the
complainant, Noor Mohammad and other villagers and
because of that Irfan was murdered. They have been
falsely implicated in the alleged crime. When asked
about the evidence given by PW-12, Siyaram regarding
arrest of appellants vide arrest memo Ex.P-16 and Ex.P-
17, the accused-appellants stated that it is incorrect.
It is pertinent to note that the appellants in their
statements recorded under Section 313 of CrPC, took the
defence that Irfan was murdered due to animosity
between the complainant, Noor Mohammad and other
villagers but no such suggestion was given to any
witness in his cross-examination, therefore, the
defence taken by the appellants in statements under
Section 313 of CrPC is afterthought.
In Munna Kumar Upadhyaya @ Munna Vs. State of
Andhara Pradesh reported in (2012) 6 SCC 174, Hon'ble
Apex Court has held that statement under Section 313 of
Cr.P.C. is to serve a dual purpose, firstly, to afford
to the accused an opportunity to explain his conduct
and secondly, to use denials of established facts as
incriminating evidence against him. If the accused
gave incorrect or false answers during the course of
his statement under Section 313 of Cr.P.C., the Court
can draw adverse inference against him.
As discussed above, the appellants denied the fact
of their arrest which is otherwise proved by the
prosecution by cogent evidence. The allegation levelled
by PW-11, Sahaji in her statement recorded in the
Court, regarding character of the appellant No. 1, was
put to the appellants under Section 313 of CrPC but
instead of giving any explanation, they merely said
that it is incorrect. In this way, the appellants used
denial of established facts as incriminating evidence
against them and gave incorrect or false answers during
the course of recording their statements under Section
313 of CrPC. The appellants also took an afterthought
defence of animosity between the complainant and other
villagers which resulted in the murder of Irfan. The
said defence is not proved, rather it is unfounded.
Therefore, this circumstance also goes against the
appellants.
In Vijay Shankar Vs. State of Haryana reported in
(2015) 12 SCC 644, Hon'ble Supreme Court has held that
in each and every case, it is not incumbent on the
prosecution to prove the motive for the crime. Often,
motive is indicated to heighten the probability of the
offence that the accused was impelled by that motive to
commit the offence. Proof of motive only adds to the
weight and value of evidence adduced by the
prosecution. If the prosecution is able to prove it's
case on motive, it will be a corroborative piece of
evidence. But even if the prosecution has not been able
to prove it's case on motive that will not be a ground
to throw the prosecution case nor does it corrode the
credibility of the prosecution case. Absence of proof
of motive only demands careful scrutiny of evidence
adduced by the prosecution.
For a doubt to be a reasonable, it is trite that a
reasonable doubt is not an imaginary or frivolous
doubt. It must not be based on sympathy or prejudice
but should be founded on reasons and common-sense and
should be logically derived from the evidence brought
on record or absence of evidence.
Each of the circumstances when joined together
firmly and fully rule out the possibility of any such
hypothesis, which may be compatible with the innocence
of the accused-appellants. All the circumstances
unerringly points towards the guilt of the accused-
appellants. The evidence produced by the prosecution
is cogent and reliable and the prosecution has
successfully proved the charge of Section 364, 377,
302/34 and 201 of IPC against the accused-appellants
beyond reasonable doubt. The learned trial court has
looked into every material aspect of the matter and was
fully justified in convicting the appellants. There is
no scope to interfere in the impugned judgment of
conviction and order of sentence passed by the learned
trial court.
For the above reasons, we see no infirmity in the
impugned judgment to call for our interference.
Resultantly, the appeal is dismissed.
(Dinesh Chandra Somani),J. (Ajay Rastogi),J.
Print Page
that he got conducted the potency test of accusedpersons.
Though the prosecution has not produced and
proved the report of potency test of the accusedpersons
but only because of non-production of the test
reports it cannot be presumed that accused-appellants
are unfit to commit the offence of Section 377 of IPC.
To our mind, the above circumstance goes against the
accused-appellants.
IN THE HIGH Court OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR
D.B. Criminal Appeal No. 72/2011
Mohammad Arsad @ Layak V State of Rajasthan
PRESENT
MR. JUSTICE AJAY RASTOGI
MR. JUSTICE DINESH CHANDRA SOMANI
Citation:2017 CRLJ 684 Raj
This Criminal Appeal No. 72/2011 has been filed
under Section 374 of CrPC against the judgment of
conviction and order of sentence dated 26.11.2010
passed by the learned Additional Sessions Judge (Fast
Track) No. 2, Bharatpur Camp Kaman in Sessions Case No.
32/2008 whereby the accused-appellants have been
convicted under Sections 364, 377, 302/34 & 201 of IPC
and sentenced as follows:
-For the offence under Section 364 of IPC
sentenced for ten years' rigorous
imprisonment with fine of Rs. 2,000/- each
and in default of payment of fine to further
undergo one year's rigorous imprisonment.
-For the offence under Section 377 of IPC
sentenced for ten years' rigorous
imprisonment with fine of Rs. 2,000/- each
and in default of payment of fine to further
undergo one year's rigorous imprisonment.
-For the offence under Section 302/34 of IPC
sentenced for life imprisonment with fine of
Rs. 5,000/- each and in default of payment of
fine to further undergo one year's rigorous
imprisonment.
-For the offence under Section 201 of IPC
sentenced for five years' rigorous
imprisonment with fine of Rs. 1,000/- each
and in default of payment of fine to further
undergo six months' rigorous imprisonment.
The substantive sentences were ordered to run
concurrently.
Prosecution story in brief is that on 10.06.2007,
the complainant, Noor Mohammad submitted a written
report (Ex.P-1) to Damodar (PW-14), Assistant Sub
Inspector of police at the place of occurrence stating
therein that one Kalaam, Sayaboo, Tahir, and Asru
introduced in our village Kharbar, one Maulana named
Arsad to be well known to them, then the villagers on
their recommendation, appointed Arsad for imamat in
mosque. Arsad performed imamat in village mosque for a
period of one year. Thereafter, he left imamat and
went away before one month, after taking his salary.
That in the intervening night of 08.06.2007 and
09.06.2007 at about 12:00 AM, Buddan, Fazzu, Maulana
Arsad, Anwar, Mufti Azam and one other man armed with
weapons came in a white coloured Esteem Car No. DL-2C-
0098 and one more car which was parked on Gadhaner
Road. Aforesaid accused-persons kidnapped my minor
son, Irfan. Upon raising voice by Irfan, I, along with
Azeem, Hassan and other villagers reached to save Irfan
from accused-persons but they forcibly dragged Irfan
inside the car, opened fire and fled. Thereafter, they
made a search for three days, then dead body of Irfan
was discovered muffed in canal which is 100 meters away
from Gadhaner Road.
That on the basis of above written report, FIR No.
113/2007 was registered at Police Station Pahari,
District Bharatpur for the offences under Sections 147,
148, 149, 364, 302, 201 and 336 of IPC and
investigation commenced. After completion of
investigation, the Police filed charge-sheet against
accused-appellants under Sections 364, 302, 201, 120-B
and 377 of IPC. The trial Court framed charges against
the appellants for the offence under Sections 120-B,
364, 377 alternatively 377/34, 302 alternatively 302/34
and 201 of IPC. Charges were read over and explained to
the accused-appellants who pleaded not guilty and
sought to be tried.
In order to support its case, prosecution examined
16 witnesses and exhibited 27 documents.
Thereafter, learned trial court put oral evidence
of the prosecution witnesses and documentary evidence
produced by the prosecution to the accused-appellants
under Section 313 of CrPC. In reply to the prosecution
evidence, the accused-appellants stated that the
statements of witnesses are not true, there is
animosity between the complainant, Noor Mohammad and
other villagers and because of that Irfan was murdered
and they have been falsely implicated in the alleged
crime. The appellants did not produce any witness in
defence. After completion of trial, the learned
trial court acquitted the accused-appellants from the
charge of Section 120-B of IPC and convicted them for
the offence under Section 364, 377, 302/34 and 201 of
IPC and sentenced them as indicated hereinabove.
Being aggrieved with the judgment of conviction
and order of sentence awarded to the accusedappellants,
they preferred the present appeal before
this Court against the judgment of learned trial court
dated 26.11.2010.
Mr. Anshuman Saxena, learned counsel for the
accused-appellants submitted that there are several
infirmities and contradictions in the statement of
prosecution witnesses, therefore, no reliance can be
placed on the testimony of such witnesses. The
prosecution witnesses have suppressed the genesis of
the occurrence and have changed their statements at
various places, therefore, the prosecution witnesses
cannot be treated as credible and reliable witnesses.
Therefore, the conviction and sentence based on the
statements of such witnesses is not sustainable and is
liable to be quashed and set aside.
Learned counsel for the accused-appellants also
submitted that the case rests upon circumstantial
evidence and golden rule for the same is that there
should be no missing link in the chain of circumstances
and all the chain of circumstances should be completed,
but in the present case, the prosecution has miserably
established any of the circumstances. Learned counsel
also submitted that in the case of circumstantial
evidence, conviction cannot be based only upon the
theory of last seen together.
Learned counsel for the accused-appellants further
submitted that there is material delay in lodging the
FIR and the same has not been explained properly and it
reveals that the case is falsely fabricated against the
appellants. It is pertinent to mention that it is
unbelievable that where a person has been kidnapped
through fear of weapons by opening fire in presence of
numerous persons and in such a case FIR is lodged after
two days.
Learned counsel for the accused-appellants also
submitted that the learned trial court has neither
properly considered nor critically examined the
statements of prosecution witnesses and in routine has
discussed the same and passed the impugned judgment of
conviction which is against the criminal jurisprudence,
thus, the conviction of the accused-appellants is bad
in law.
Learned counsel for the accused-appellants further
submitted that recovery of slipper and cap of the
deceased have falsely been connected with the
appellants because the said recoveries have been made
from the place which is near to the scene of crime
which was already known and detected in site plan,
Ex.P-12, therefore, the alleged information of
appellants cannot be taken as adverse circumstance
against them in the light of Section 27 of the Evidence
Act. It is also argued that the learned trial court
has failed to appreciate the statements of appellants
recorded under Section 313 of CrPC in which they
specifically stated the reason of their false
implication and prayed to accept the appeal, setting
aside the impugned judgment of conviction and order of
sentence and to acquit the accused-appellants for the
charges levelled against them.
Learned Counsel for the accused-appellants placed
reliance on :
1. 1994 Supp (2) Supreme Court Cases 372
Arjun Marik & Ors. Vs. State of Bihar
2. (2002) 8 Supreme Court Cases 45
Bodhraj @ Bodha & Ors. Vs. State of Jammu and
Kashmir
3. (2005) 12 Supreme Court Cases 438
Jaswant Gir Vs. State of Punjab
4. 2008 (3) RLW 2135 (SC)
Sattatiya @ Satish Rajanna Kartalla Vs. State of
Maharashtra
5. AIR 2014 Supreme Court 2548
Krishnan @ Ramasamy & Ors. Vs. State of Tamil
Nadu
On the other hand, Mr. S.K. Saini, learned Public
Prosecutor has supported the impugned judgment and
submitted that the learned trial court has rightly
convicted the accused-appellants on the basis of cogent
and reliable evidence which prove their guilt beyond
reasonable doubt.
Learned Public Prosecutor also contended that the
accused-appellants can be convicted only on last seen
theory because the time-gap between the point of time
when the appellants and the deceased were seen last
alive and when the deceased, Irfan was found dead is so
small that possibility of any person other than the
accused-persons being the author of the crime became
impossible.
Learned Public Prosecutor further contended that
the complainant is an illiterate person of rural
background. His son was kidnapped in the intervening
night of 8
th and 9
th, June 2007. Marriage of his two
elder sons was fixed to be solemnized on 09.06.2007 in
another village, baarat of his sons proceeded in
morning and returned in the night of 09.06.2007. In the
meantime and after the return of baarat, he and other
persons continued the search of the deceased and
informed the police through Sarpanch on 10.06.2007 soon
after dead body of the deceased was discovered. In
this way, the prosecution explained the delay in
lodging the FIR. Therefore, the delay occurred is not
fatal to the prosecution's case. The prosecution has
proved the offence against the accused-appellants
beyond reasonable doubt and prayed to dismiss the
appeal being devoid of merits.
` We have given our anxious consideration to the
rival submissions of learned counsel for the accusedappellants
and learned Public Prosecutor for the State
and perused the material on record.
PW-1, Noor Mohammad is father of the deceased,
Irfan and the FIR was registered on his written report
Ex.P-1. According to the statement of PW-1, his two
sons were going to marry before about 14 months, thus,
they were busy in that programme. At about 12:00 hours
in midnight of date 8
th and 9
th, Arsad, Anwar and three
others came in a white coloured Esteem car of Delhi
number, parked it at some distance from the road and
came to his house armed with country made pistol
(Katta) and gun. These persons kidnapped his son,
Irfan aged about 13-14 years. The witness himself,
Hasan, Azeem and many other persons saw the accusedpersons
taking Irfan with them. They ran after them to
save the child but the accused-persons dragged the
child forcibly in the car, opened fire and fled. They
made a search of the child. Dead body of the child was
discovered in the side of canal on 10
th at about 11-12
hours. They saw that the dead body was swollen, fowl
smelling and bleeding in anus of the child. Soon after
that police was informed and the police came on the
spot where he gave written report Ex.P-1.
PW-2, Azeem is brother-in-law of the complainant
who gave the same statement as given by PW-1, Noor
Mohammad. The witness also stated that he himself,
Hassan, Noor Mohammad and others ran after the accusedpersons
to save Irfan but the accused-persons opened
fire, thus, they returned and thereafter, they became
busy in the affairs of the marriage of his nephews.
PW-3 Chander Khan, PW-4 Waheed, PW-5 Fakru and PW-
6 Hassan are the neighbours of the complainant Noor
Mohammad who witnessed the incident of kidnapping of
Irfan by accused-appellants in the midnight on gun
point and supported the statement of PW-1, Noor
Mohammad and PW-2, Azeem.
PW-11, Sahaji is wife of the complainant, Noor
Mohammad and mother of Irfan, the deceased. This
witness has stated that they were busy in the marriage
function of her sons Arsad and Irsad. In the night at
about 12:00 AM, Arsad, Anwar and three others dragged
forcibly her younger son, Irfan aged 13-14 years in
their car on gun point and fled. The witness also
stated that Arsad taught Quran to her son Irfan in
mosque. Irfan told her that before two months of the
incident, Arsad committed sodomy with him in night.
Then she scolded Arsad and asked him to leave the
place. He left the place and because of that, he
kidnapped her son Irfan and committed his murder.
PW-2, Azeem is brother-in-law of complainant, Noor
Mohammad and he was in the village because of marriage
of his two nephews, therefore, his presence in the
house of the complainant at the time of incident of
kidnapping of Irfan is natural. The witness has no
animosity with the accused-persons. Therefore, there is
no reason to disbelieve on the evidence given by PW-2,
Azeem merely on the ground of relationship with the
complainant.
PW-3 Chander Khan, PW-4 Waheed, PW-5 Fakru and PW-
6 Hassan are residents of village Kharbar and
neighbours of the complainant. There is no evidence of
animosity of the witnesses with the accused-appellants
and presence of these witnesses at the time of incident
is natural, therefore, evidence given by them cannot be
disbelieved.
PW-8, Dr. Naresh Yadav and PW-10, Dr. Sunil Sharma
performed the autopsy over the dead body of the
deceased, Irfan as the members of Medical Board and
prepared post-mortem report, Ex.P-14. According to the
post-mortem report, Ex.P-14 and the evidence given by
PW-8 and PW-10, multiple abrasions (nail marks) with
contusions were found around the mouth and nostrils of
the deceased. The body of the deceased was partially
decomposed, fowl smelled, swollen with peeling skin &
black-brownish coloured body. The witnesses also found
tears in anus and in their opinion, the cause of death
is due to asphyxia with consistent anal sexual
intercourse which is sufficient to cause death in the
ordinary course of nature. The death of the deceased
was caused within 36 to 72 hours prior to post-mortem
examination. Therefore, it is proved that Irfan died a
homicidal death.
PW-14 Damodar, ASI in Police Station, Pahari on
10.06.2007, has stated that he reached in the jungle of
village Kharbar Mazra on information where Noor
Mohammad (PW-1) gave him a written report, Ex.P-1. He
sent the report to police station with Constable
Bhudev. Dead body of complainant's son, Irfan was
partially muffed in the ground of canal. He prepared
Panchnama Ex.P-2, memo of condition of dead body Ex.P-3
and memo of delivery of dead body Ex.P-4. He took
samples of blood smeared and control soil from the
spot, sealed the same and marked “A” vide memo, Ex.P-5.
Vide memo Ex.P-6, he seized pajama (pantaloon) of the
deceased, two pieces of naada, one blue coloured ball
pen and a handker chief, produced by complainant, Noor
Mohammad stating the same to be belongings of the
deceased. He also seized one more ball pen and
disposable glasses of the deceased vide memo, Ex.P-7.
He prepared site plan, Ex.P-12 and conducted postmortem
of the deceased from the Medical Board. Place
of recovery of dead body was photographed. In crossexamination,
the witness stated that he did not prepare
site plan of house of Noor Mohammad. They had no
information about the incident prior to 10.06.2007.
PW-7, Subba also proved inquest report Ex.P-2,
memo of condition of dead body Ex.P-3, seizure memo of
blood smeared soil and control soil Ex.P-5, seizure
memo of belongings of deceased, Irfan Ex.P-6, seizure
memo of pen and disposable glasses Ex.P-7, site plan
Ex.P-12 and Ex.P-13.
PW-15, Bhoop Singh stated that he took
photographs, Ex.P-21 to Ex.P-26 on 10.06.2007 on police
request through digital camera.
PW-16, Harmukh Lal, ASI in police Station, Pahari
on 10.06.2007, has stated that on that day Constable
Bhudev Singh brought written report, Ex.P-1 from the
place of incident, whereupon, he registered FIR No.
113/2007 which is Ex.P-27.
PW-9 Ramkishan was Head Constable and Maalkhana
Incharge of Police Station, Pahari, has stated that
Investigation Officer deposited four sealed packets on
10.06.2007 and two sealed packets marked “E” and “F” on
27.06.2007 in Maalkhana and the entries were made in
Maalkhana Register, Ex.P-5.
PW-12, Siyaram, Constable proved the arrest memo,
Ex.P-16 and Ex.P-17A of accused-persons.
PW-13, Ramnath, the then SHO of Police Station,
Pahari, Second Investigation Officer of the case, gave
a detailed account of the investigation conducted by
him and proved the informations, Ex.P-17 and Ex.P-18
given by the accused-appellants under Section 27 of the
Evidence Act, recovery of cap of the deceased vide
Ex.P-9 at the instance of accused-appellant No.2,
Mohammad Tariq Anwar, in consequence of information
given by him and site plan of place of recovery of cap,
Ex.P-11, recovery of slippers of the deceased vide
Ex.P-8 at the instance of accused-appellant No. 1,
Arsad, in consequence of information given by him and
site plan of place of recovery of slippers Ex.P-10. The
witness also stated that vide Ex.P-13, the accusedpersons
certified the place of occurrence where they
committed sodomy with the deceased, killed him and
muffed his body in the earth, in consequence of
informations, Ex.P-19 and Ex.P-20, given by them under
Section 27 of the Evidence Act.
From the evidence given by PW-1, PW-2, PW-3, PW-4,
PW-5, PW-6 and PW-11, it is proved that the accusedappellant
No. 1, Mohammad Arsad performed imamat in the
village mosque for about a year and he left the job of
imamat and village before a month of the incident.
Accused-appellant No. 2, Mohammad Tariq Anwar was also
an Imam in the mosque of neighbouring village Hujra and
he used to come to the appellant No. 1 to meet.
Therefore, both the accused-appellants were known to
the above prosecution witnesses. It is also not in
dispute and it is proved by the evidence given by PW-1
to PW-6 and PW-11 that marriage of two elder sons of
the complainant was going to be solemnized on
09.06.2007 and the complainant arranged a dinner on
08.06.2007 on the eve of marriage. The baarat of sons
of complainant proceeded to village Punhana in the
morning of 09.06.2007 and returned in the late evening
on the same day. The case of the prosecution is based
on following circumstances:
A. Motive
B. Last seen theory
c.Recovery of slippers and cap of the deceased at the
instance of accused-appellants.
A:- Motive :
It is not in dispute and is proved from the
evidence of PW-1 to PW-6 and PW-11 that appellant No. 1
was appointed Imam in the mosque of complainant's
village to perform imamat. From the statement of PW-1,
Noor Mohammad and PW-11, Sahaji, it is proved that the
deceased, Irfan used to go to appellant No. 1 in mosque
to study the Quran. According to the statement of PW-
11, the deceased Irfan told her before two months of
the incident that appellant No. 1 committed sodomy with
him. Thereafter she (PW-11) scolded the appellant No.
1 and asked him to leave the place. According to the
statement of PW-5, Fakru given in his crossexamination,
appellant No. 1 used to beat, abuse and do
villainy with the children to whom he used to teach.
According to the statement of PW-6, Hassan, he heard
that appellant No. 1 beats the children and is indulged
in wrong-doings with children and because of that he
was removed from the work of imamat. The above
evidence puts a question mark on the character of the
appellant No. 1. From the evidence of PW-8, Dr. Naresh
Yadav, PW-10, Dr. Sunil Sharma and post-mortem report
of the deceased, Ex.P-14, it is proved that the
deceased, Irfan was subjected to consistent anal sexual
intercourse before his death.
PW-13, Ramnath, Investigation Officer has stated
that he got conducted the potency test of accusedpersons.
Though the prosecution has not produced and
proved the report of potency test of the accusedpersons
but only because of non-production of the test
reports it cannot be presumed that accused-appellants
are unfit to commit the offence of Section 377 of IPC.
To our mind, the above circumstance goes against the
accused-appellants.
B:- Last seen theory:
From the evidence given by PW-1, PW-2, PW-3, PW-
4, PW-5, PW-6 and PW-11, it is proved that in the
intervening night of 8
th and 9
th June of 2007 at about
12:00 AM, the accused-appellants and three others came
to the village of the complainant in a white Esteem Car
of Delhi number, parked the car at some distance from
the road and came to the house of the complainant armed
with country made pistol (Katta) and gun. These
persons kidnapped Irfan aged about 13-14 years who is
son of the complainant, Noor Mohammad. After hearing
voice of Irfan, PW-1, PW-2, PW-3, PW-4, PW-5 and PW-6
tried to save the child, Irfan from the accused-persons
but the accused-persons dragged the child forcibly in
their car, opened fire and fled. It is argued that
regarding genesis of the occurrence, there are
contradictions in the statements of prosecution
witnesses recorded by the Investigation Officer under
Section 161 of CrPC and statements recorded in the
Court. It is pertinent to note that all the eye
witnesses of incident of kidnapping of the deceased
appears to be illiterate or semi-literate and are of
rural background, therefore, some contradictions are
natural but the contradictions are not so material,
which may impress us to throw the prosecution case in
whole. It is also pertinent to note that it is not the
case of accused-appellants that they did not go to the
house of the complainant and they were present at any
different place at the relevant time. Moreover, it was
suggested to PW-1, Noor Mohammad in his crossexamination
that he invited the appellants for dinner
on the eve of marriage of his sons. PW-1, Noor Mohammad
however, denied the suggestion that he invited the
appellant for the dinner. Almost the same suggestion
was given to PW-11, Sahaji in her cross-examination and
she also denied the suggestion having invited the
accused-appellants for dinner. In this way, accusedappellants
indirectly admitted their presence at the
house of complainant at the relevant time, thus, it is
proved that accused-appellants went to the house of
complainant, Noor Mohammad in the intervening night of
8
th and 9th June, 2007 and kidnapped his minor son, Irfan
aged 13-14 years.
After the incident of aforesaid kidnapping of the
deceased Irfan, he was never seen anywhere with any
person and his dead body was discovered in the jungle
on 10.06.2007 at about 11-12 hours in the canal which
is about 600-700 meters away from the house of the
complainant. This fact is proved from the statements
of PW-1 Noor Mohammad, PW-2 Azeem, PW-5 Fakru, pW-6
Hassan, PW-7 Subba, PW-11 Sahaji, PW-14 Damodar and
documentary evidence i.e. written report Ex.P-1,
inquest report Ex.P-2, memo of condition of dead body
Ex.P-3 and site plan Ex.P-12.
From the post-mortem report, Ex.P-14 and
statements of PW-8, Dr. Naresh Yadav and Pw-10, Dr.
Sunil Sharma, it is proved that autopsy over the dead
body of Irfan was performed on 10.06.2007 at about 3:50
PM and probable time of death of Irfan was within 36-72
hours at the time of post-mortem examination.
Therefore, the time of kidnapping of the deceased falls
within the probable time of death mentioned in the
post-mortem report, Ex.P-14.
In view of the discussions made above, it is
proved that the deceased, Irfan was last seen in the
intervening night of 8
th and 9
th June of 2007 at about
12:00 AM with the accused-appellants in the village
Kharbar when he was kidnapped by the appellants and
three others and was forcibly dragged in a Esteem Car
in which the accused-appellants came to the house of
the complainant and fled from there. The body of the
deceased was recovered from the side of canal which is
situated about 600-700 meters away from the house of
the complainant. The said recovery was made on
10.06.2007 at about 11-12 hours. In this way, there is
a gap of almost 36 hours only between the point of time
when the accused-appellants and the deceased, Irfan
were seen last alive and when the deceased is found
dead. The said time gap is so small that possibility
of any person other than the accused-appellants being
the author of the crime becomes almost impossible. This
circumstance of last seen goes against the accused-
appellants.
It is pertinent to note that the complainant has
named five persons including both accused-appellants in
his report, Ex.P-1 but after investigation, the police
did not charge-sheet the remaining three persons
finding them to be not involved in the incident,
therefore, it is not necessary to discuss in the
judgment, the role of other three persons.
C:- Recovery of slippers and cap of the deceased
at the instance of accused-appellants:
From the statement of PW-14, Damodar who is the
first Investigation Officer, it is proved that on
10.06.2007, he seized one ball pen from the spot vide
Ex.P-7 alleged to be of accused-appellant No. 1,
Mohammad Arsad. At the time of seizure, PW-1, Noor
Mohammad claimed the ball pen to be of appellant,
Arsad. But no other prosecution witness stated that the
ball pen seized from the spot vide Ex.P-7 was of
accused-appellant No.1 Mohammad Arsad or was ever seen
with him and he can identify the pen to be of accusedappellant
No.1. To our mind, only on this weak
evidence, the accused-appellant No. 1 cannot be
connected with the crime of which he has been charged.
According to the statement of PW-12, Siyaram,
accused-appellant No.1 and 2 were arrested on
18.06.2007 vide Ex.P-16 and Ex.P-17A respectively .
According to the statement of PW-13, Ramnath
Investigation Officer, he seized one pair of slippers
of deceased at the instance of appellant No. 1,
Mohammad Arsad vide Ex.P-8 on 27.06.2007 in consequence
of information given by him vide Ex.P-18 and site plan
of place of recovery Ex.P-10 was prepared. According
to the witness, he also seized one cap of the deceased
on 27.06.2007 at the instance of appellant No. 2,
Mohammad Tariq Anwar vide memo Ex.P-9, in consequence
of information Ex.P-17 given by him under Section 27 of
the Evidence Act and site plan of place of recovery,
Ex.P-11 was prepared. The above statement is supported
by the evidence given by PW-1, Noor Mohammad.
From perusal of the site plan of place of
occurrence, Ex.P-12 prepared on 10.06.2007, site plan
of place of recovery of slippers, Ex.P-10 prepared on
27.06.2007 and site plan of place of recovery of cap,
Ex.P-11 prepared on 27.06.2007, it reveals that the
places of recoveries of slippers and cap of the
deceased, Irfan are very near to the place of recovery
of his dead body, which is already known to the police
personnels, the complainant and other witnesses of site
plan, Ex.P-12 and other memos i.e. Ex.P-2, Ex.P-3,
Ex.P-5, Ex.P-6, Ex.P-7 as they have visited the place
on 10.06.2007. Therefore, the recoveries of pair of
slippers and cap of the deceased on 27.06.2007 do not
inspire confidence and the alleged informations of the
appellants cannot be taken as adverse circumstance
against them.
Delay in lodging FIR :
It is argued by learned counsel for the appellants
that there is material delay in lodging the FIR and the
same has not been explained which is fatal to the
prosecution.
As discussed above, it is evident that the
complainant is an illiterate person of rural
background. Marriage of his two elder sons was fixed to
be solemnized on 09.06.2007 in another village Punhana.
The deceased, Irfan was kidnapped in the intervening
night of 8
th and 9
th June, 2007 at about 12:00 AM.
Baarat of complainant's sons proceeded in morning and
returned in the late evening of 09.06.2007. From the
evidence available on record, it is not in dispute that
the village of the complainant is 15 kilometers away
from Police Station, Pahari and about 3 kilometers away
from Police Out Post (Police Chowki).
According to the prosecution, the deceased was
kidnapped from his house in the intervening night of 8th
and 9
th June of 2007. It is not in dispute that the
police was not informed soon after the incident of
kidnapping, rather the police was informed on
10.06.2007, i.e. after discovery of the dead body of
Irfan.
From the statements of PW-1, Noor Mohammad and PW-
2, Azeem, they started searching for the deceased soon
after his kidnapping and after sometime became busy in
departure of baarat and in the meantime continued the
search. The police was informed through Sarpanch on
10.06.2007 soon after the dead body was discovered. In
the circumstances of the present case, the delay of
about 36 hours occurred in lodging the FIR due to
aforesaid reasons cannot be said to be unusual because
a proper explanation has come out for the said delay.
Therefore, the plea of delayed FIR has been rightly
held to be without any substance.
In 1994 Supp (2) Supreme Court Cases 372, Arjun
Marik & Ors. Vs. State of Bihar (supra), according to
the informant (PW-6), the accused-persons came to the
house of deceased persons on 19.07.1985 to raise
further loan to purchase buffaloes and the deceased was
not agreeable to advance them further loan. It is said
that the accused-appellants stayed at the house of
deceased persons to settle their previous account in
morning & were served meals in the night. The accusedpersons
were lodged in a room on the upper storey of
the house for the overnight stay, while deceased
persons slept in the varandah adjacent to the said
room. Next morning at about 6:00 AM, the house owner
and his wife were found lying dead in a pool of blood
and theft also took place. Hon'ble Supreme Court
observed that the evidence that the appellant had gone
to the deceased in the evening of 19.07.1985 and had
stayed in the night at the house of deceased persons is
very shaky and inconclusive.
In (2002) 8 Supreme Court Cases 45, Bodhraj @
Bodha & Ors. Vs. State of Jammu and Kashmir (supra),
Hon'ble Supreme Court has held that last seen theory
comes into play where the time-gap between the point of
time when the accused and the deceased were seen last
alive and when the deceased is found dead is so small
that possibility of any person other than the accused
being the author of crime becomes impossible.
In (2005) 12 Supreme Court Cases 438, Jaswant Gir
Vs. State of Punjab (supra), the main incriminating
fact relied upon was that the deceased was last seen by
PW-14 in the company of the appellant and the other
accused and that he was given lift in the vehicle
belonging to the appellant. The destination of the
deceased was Pehwa, whereas the vehicle had come from
Pehwa and was proceeding towards Devigarh which is in a
different direction. Hon'ble Supreme Court observed
that there is no apparent reason why the deceased would
have chosen to go in the vehicle which was proceeding
to some other destination and there is considerable
time gap between the deceased boarding the vehicle of
the appellant and the time when PW-11 found the dead
body. In the absence of any other links in the chain
of circumstantial evidence, it is not possible to
convict the appellant solely on the basis of last seen
evidence, even if the version of PW-14 in this regard
is believed.
In 2008 (3) RLW 2135 (SC), Sattatiya @ Satish
Rajanna Kartalla Vs. State of Maharashtra (supra),
Hon'ble Supreme Court found that witness of “last seen”
was untrustworthy and his evidence is full of
contradictions, place of recovery of weapons was open
place where everybody had access and the evidence of
hawker could not be believed, thus, allowed the appeal
and ordered to acquit the accused-appellant.
In AIR 2014 Supreme Court 2548, Krishnan @
Ramasamy & Ors. Vs. State of Tamil Nadu (supra), as
per the prosecution story, the deceased was last seen
on 4
th April, 2004 in the company of accused-persons
during festival at temple and the body of the deceased
was taken from borewell by the fire service personnels
after more than seven days. Hon'ble Supreme Court
found that there is no other positive material on
record to show that the deceased was last seen together
with the accused and during intervening period of seven
days. There was nobody in contact with the deceased,
thus, allowed the appeal of accused-persons and
directed to release them.
Because of difference in facts and circumstances
of the case, the cases cited by the learned counsel for
the appellants are not of much help to the appellants.
Moreover, it reveals that the accused-persons can be
convicted only on the last seen theory, provided the
time-gap between the point of time when the accused and
the deceased were seen last alive and when the deceased
is found dead is so small that possibility of any
person other than the accused-person being the author
of the crime becomes impossible.
The appellants in their statements recorded under
Section 313 of CrPC have stated that the statements of
witnesses are not true. There is animosity between the
complainant, Noor Mohammad and other villagers and
because of that Irfan was murdered. They have been
falsely implicated in the alleged crime. When asked
about the evidence given by PW-12, Siyaram regarding
arrest of appellants vide arrest memo Ex.P-16 and Ex.P-
17, the accused-appellants stated that it is incorrect.
It is pertinent to note that the appellants in their
statements recorded under Section 313 of CrPC, took the
defence that Irfan was murdered due to animosity
between the complainant, Noor Mohammad and other
villagers but no such suggestion was given to any
witness in his cross-examination, therefore, the
defence taken by the appellants in statements under
Section 313 of CrPC is afterthought.
In Munna Kumar Upadhyaya @ Munna Vs. State of
Andhara Pradesh reported in (2012) 6 SCC 174, Hon'ble
Apex Court has held that statement under Section 313 of
Cr.P.C. is to serve a dual purpose, firstly, to afford
to the accused an opportunity to explain his conduct
and secondly, to use denials of established facts as
incriminating evidence against him. If the accused
gave incorrect or false answers during the course of
his statement under Section 313 of Cr.P.C., the Court
can draw adverse inference against him.
As discussed above, the appellants denied the fact
of their arrest which is otherwise proved by the
prosecution by cogent evidence. The allegation levelled
by PW-11, Sahaji in her statement recorded in the
Court, regarding character of the appellant No. 1, was
put to the appellants under Section 313 of CrPC but
instead of giving any explanation, they merely said
that it is incorrect. In this way, the appellants used
denial of established facts as incriminating evidence
against them and gave incorrect or false answers during
the course of recording their statements under Section
313 of CrPC. The appellants also took an afterthought
defence of animosity between the complainant and other
villagers which resulted in the murder of Irfan. The
said defence is not proved, rather it is unfounded.
Therefore, this circumstance also goes against the
appellants.
In Vijay Shankar Vs. State of Haryana reported in
(2015) 12 SCC 644, Hon'ble Supreme Court has held that
in each and every case, it is not incumbent on the
prosecution to prove the motive for the crime. Often,
motive is indicated to heighten the probability of the
offence that the accused was impelled by that motive to
commit the offence. Proof of motive only adds to the
weight and value of evidence adduced by the
prosecution. If the prosecution is able to prove it's
case on motive, it will be a corroborative piece of
evidence. But even if the prosecution has not been able
to prove it's case on motive that will not be a ground
to throw the prosecution case nor does it corrode the
credibility of the prosecution case. Absence of proof
of motive only demands careful scrutiny of evidence
adduced by the prosecution.
For a doubt to be a reasonable, it is trite that a
reasonable doubt is not an imaginary or frivolous
doubt. It must not be based on sympathy or prejudice
but should be founded on reasons and common-sense and
should be logically derived from the evidence brought
on record or absence of evidence.
Each of the circumstances when joined together
firmly and fully rule out the possibility of any such
hypothesis, which may be compatible with the innocence
of the accused-appellants. All the circumstances
unerringly points towards the guilt of the accused-
appellants. The evidence produced by the prosecution
is cogent and reliable and the prosecution has
successfully proved the charge of Section 364, 377,
302/34 and 201 of IPC against the accused-appellants
beyond reasonable doubt. The learned trial court has
looked into every material aspect of the matter and was
fully justified in convicting the appellants. There is
no scope to interfere in the impugned judgment of
conviction and order of sentence passed by the learned
trial court.
For the above reasons, we see no infirmity in the
impugned judgment to call for our interference.
Resultantly, the appeal is dismissed.
(Dinesh Chandra Somani),J. (Ajay Rastogi),J.
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