Mastan Shah and Another vs State of U.P.

Dharnidhar Jha and Pankaj Naqvi, JJ.—How judicial enthusiasm may put into peril the lives of innocent persons is best illustrated by the impugned judgment on the basis of which the learned Additional Sessions Judge, Court No. 6, Badaun, was making reference u/s 366 Cr.P.C. to this Court to confirm the sentence of death, passed on two pitiable souls, who are the respondents in the death reference and who have also preferred their appeal against the judgment dated 20.4.2013 passed by the above-noted Court in Sessions Trial No. 882 of 2012. Two dead bodies were found in the house of the respondents-appellants. At the time of the recovery of the dead bodies, undisputedly, the respondent Mastan Shah was not at his house. The other respondent, i.e., his wife Shakila was there. The police seized the dead bodies, but what appears from the prosecution case, is that it had been moved to come to the place of occurrence only on the basis of the written report Ex. ka-1, which recited that the son of PW-1, named, Idrish @ Kallu, aged 28 years, had cosy relationship with the daughter of respondents-appellants Mastan Shah and Shakila. they had fallen in love for each other and used to meet which had caused a sense of annoyance in the mind of Mastan Shah.

It was further alleged that on 29.6.2012 at about 7 pm, the son of the informant, who is one of deceased, namely, Idrish @ Kallu, left his house, telling his family members that he was going to visit a mela at village Gunnaur. He did not come back in the night, as such, a search was made for him in night itself. The informant again, at 6.30 AM, went out in search of his son and when he had come in front of the house of respondent-appellant Mastan Shah, found him standing in front of it. As soon as appellant Mastan Shah saw the informant-PW-1, he stated to him that what he was looking for and that he and his wife, the other appellant, Shakila, had killed both Idrish and their own daughter Km. Chandani inside their house, because the meeting between the two deceased had greatly tarnished the respect and image of appellant Mastan Shah in the estimations of the villagers and the society.

Saying this, it was alleged that appellant Mastan Shah moved towards the village, whereafter, the informant along with other villagers came inside the house of appellant Mastan Shah to find that the two dead bodies of Idrish and Km. Chandani were lying in the verandah of the house of the appellants. The informant alleged the twin murders had been committed during night.

On the basis of Ex. ka-1, the written report, the FIR of the case, Ex. ka-4 was drawn up and, as may appear from the evidence of PW-5 SI Laxmi Shanker, he came to the place of occurrence and found the two dead bodies lying in the verandah of the house and held inquest upon them and prepared the inquest reports in presence of the witnesses. He sent the two dead bodies for post-mortem examination, inspected the place of occurrence and prepared the sketch map thereof, which is Ex. ka-6/1. He recorded the statements of witnesses and finding the complicity of the two appellants, sent them up for trial.

The pleas of the appellants, as appears from the evidence of PW-1, were that he had himself lodged the report about the twin murders, which was committed by someone else and the police did not act upon it and after obtaining a collusive report from the informant (P.W.1), as appears suggested to him at pages 18 & 19 of the paper book, a false case was foisted upon the two appellants.

On perusal of evidence of PW-5, the Investigating Officer, it appears mat the two dead bodies were found lying outside the rooms in the verandah and there was copious blood lying there. From the mere look of the two dead bodies, it appeared that the two deceased had been killed by their throats being slit. The description of the place of occurrence is vividly given in the evidence of PW-5 and it appears that there was no blood either in the room or in the outer area where the cattle-shed, the bathrooms and the lavatories were situated and there was no incriminating article found, though the evidence of PW-1 and other witnesses indicated that the deceased had been killed after being tied down on their feet and hands. On perusal of the evidence of the doctor-PW-2, it appears that there was no signs anywhere either on the hands or legs of the two deceased indicating that they had been tied down and killed by slitting their throats.

The contention of the learned Counsel appearing for the appellants was that the informant had himself lodged a report by going to the police station and this was duly admitted by PW-1 at pages 17 & 18 of the paper book and the prosecution was guilty of suppressing that report only because the facts, which were true and properly reported by the appellant to the police, were telling a different story from the one, which was subsequently created by the police in connivance with the informant. It was further contended that the very reason for commission of the twin murders, which was the very substratum of the prosecution case, as per the written report, appears given a go-bye by the informant when he stated that there was no relationship between his son and the daughter of the present appellants and nor any rumours were making round in the village and he had not narrated that particular fact about the love between the two deceased in his written report. The learned Counsel appearing for the appellants also submitted that police had already reached at the place of occurrence in pursuance to the report lodged by the present appellant and for any particular reason, the police pressured the informant and dictated a report to him, which is contained in Ex. ka-1, which is evidently clear from the evidence of PW-1 at page 17 of the paper book, implicating the present appellants Mastan Shah and his wife. Some words were put into his mouth that he had killed the two deceased and the learned Trial Judge ignoring the same and some strong possibilities, convicted the appellants and condemned the two to death. It was further contended that some of the circumstances, which were utilized against the appellants in convicting them, were never put to them in their statements u/s 313 Cr.P.C. and that vitiated the whole trial.

Sri Akhilesh Singh, the learned Government Advocate and Sri A.N. Mulla, the learned AGA valiantly attempted to convince us that it was a proved murder of two young persons, which was committed by the two appellants and the sentence of death was proper.

PW-1 is the witness, who was, firstly confronted by appellant Mastan Shah when he was out of the house in search of his son as per his evidence. It is alleged that appellant Mastan Shah stated to him that what he was looking for, the matter was finished as he had already murdered Idrish, the son of PW-1 and his own daughter Chandani. Thus, these are words spoken allegedly by P.W.1 by way of his confession to PW-2. What further appears from the written report is that after stating these facts, appellant Mastan Shah disappeared in the fields. The informant, thereafter, went with others inside the house of the appellant to find the two dead bodies lying there. It appears from the cross-examination of PW-1 that he wrote his written report after 10 a.m. and by that time the police had already taken away the two dead bodies to the police station. This evidence appears at page 17 of the paper book. PW-1 stated that before he wrote his report, the police was already in the village. Thus, what appears from the above evidence of P.W.1 is that the police had arrived at the place of occurrence and had taken the two dead bodies in its custody prior to the written report having been brought into existence. This was very clear that PW-1 at the same page-17 of the paper book, stated that he had written his report outside the police station and at that time the two dead bodies were lying in the police station. Thus, the simple question arises as to how the police had reached the place of occurrence, if there was no report presented before it.

We have all the reasons to safely conclude that when the police had reached the village and by the time held inquest and had taken the dead bodies to the police station, there was no report lodged with it by the informant as per the claim of the prosecution and still proceeding of investigation had started. We have also all the reasons to note that the police had some information about the twin murders having been committed and the two dead bodies lying outside in the verandah of the house of appellant Mastan Shah, then only it had reached the village and had started the proceeding of inquest and had seized the two dead bodies and had taken them away to the police station as admitted by PW-1.

PW-1 at page 18 of his deposition sheet, as per the paper book, had stated that before he came to the police station, appellant Mastan Shah had already reached there and he had already lodged a report. It raises another question of probability as there is strong probability arising in our mind that there was a definite information regarding the murders, given by appellant Mastan Shah to the police prior to the arrival of the informant or anybody there at the police station and probably on account of that information the police had arrived at the house of appellant Mastan Shah and had started the proceedings of inquest and had taken away the dead bodies to the police station. If this was so, then there is another legitimate question requiring to be answered regarding the report lodged by appellant Mastan Shah. Why the prosecution was suppressing that report? We have a very simple and acceptable answer that, because the story which was narrated by appellant Mastan Shah was quite different from what the police subsequently framed by framing facts and it was not suited to the whims and desires of the police officers and for any particular reason, it by putting some words in the mouth of PW-1 and was getting a report subsequently drafted after the two dead bodies were taken to the police station for implicating the two appellants.

The above inference of ours gets very prominent when we consider the other aspect of evidence of PW-1, which further convinced us that the whole prosecution story was a fabrication, thoughtfully made by mischievous imaginative minds so as to making out a convincing case and this was the reason that a motive for committing the two murders was introduced in that story.

We have noted at many earlier occasions that FIR is not a substantive piece of evidence, nonetheless it does not lose its importance, as the whole prosecution evidence has to be judged on the scales of the initial prosecution version. Besides, it also has to be found out as to whether the prosecution had embellished the story by making improvements after departing from the original narration and by substituting the original from the artificial one. For this purpose alone, we want to point out that the FIR in the present case stated that the son of the'' informant, namely, Idrish and the daughter of appellant Mastan Shah, namely, Chandani had fallen in love for each other and they were meeting very often with each other and that fact was not liked by appellant Mastan Shah and that was the reason that he had killed the two. When it came to supporting this prosecution version, PW-1 was making a complete turn round from his earlier version by stating that he did not know about any relationship between Chandani and his son, Idrish and there was no rumour in the village either regarding it also. PW-1 further stated that had he known about the relationship between the two deceased, he could have persuaded his son to give up it and could have implored his son to walk out of the relationship. He had never seen his son with deceased Chandani nor Chandani ever came to his house to meet his son. There was absolutely no whisper in the village about the love affairs between the two deceased. These were the evidence of P.W.1 on the motive. The abject hostility to his own statement, which was accepted by PW-1, was so deep that he stated at page 17 of the paper book, that he in fact had never mentioned the fact regarding the love affairs in his written report, which is a completely fake and untrue statement. Thus, the evidence of PW-1, as we have just noticed, lead us to sheer confusion, which makes his evidence not only unacceptable, but beset with falsity which merits rejection outright and as such, the evidence of PW-1, in our opinion, was not such, which could be accepted for holding, firstly, that the appellants had committed the twin murders and secondly, to raise an inference of rarest of rare culpability so as to directing them to be hanged by their necks.

PW-3 is the brother of PW-1 and he is as interested a person as was the informant himself on account of some clear attempt to make out a case, which was never existent and it was never in respect of truth as regards the twin murders. PW-3 had given the evidence as was given by his brother, which was a rank fabrication done by the police for any particular reason. Moreover, his evidence was also beset with infirmities, like, not supporting the substratum of the prosecution case that the two deceased persons were dying for each other in love and there was a strong wind blowing in the village about their affairs. PW-3 stated that he did not ever had any such information nor ever he heard the same earlier. This evidence appears at page 28 of the paper book. Another fact, which comes from the evidence of PW-3 is that when they had seen appellant Mastan Shah, no blood stain was found on his clothes. It was a brutal intentional murder of two adult persons. It would not have bled merely, the blood could have gushed out of the two dead bodies in a jet which could have splattered the person of third killers. For the above reasons, we find that it is not safe to rely upon the evidence of PW-3 also.

What we find is that the two appellants had been convicted, because appellant Mastan Shah had made a statement before the informant and others of having killed the two persons for a particular motive and the other circumstance was that the dead bodies were found inside his house.

On perusal of the sketch map, which appears at page 19 of the paper book, what we find is that there were two rooms, which were facing south and were located on the northern side of the premises of the appellant and a verandah was situated just south to the two rooms, doors of which opened into the verandah. On the western extremity was a stair-case for going up and the two dead bodies were found almost near the stair-case at places shown by letters ''A'' and ''B''. To the further south of the verandah was an open place, which came upto the brick-laden road and there was a gate fixed in it. The dead bodies were seized from there and taken to the police station, but the circumstances of the two dead bodies being found in some part of the house of an accused, may not always be clinching. But considering for the sake of argument that it may be clinching, what this Court desired to was that if this particular circumstance was used by the Court below as a circumstance of culpability of the two appellants, was not it extremely desirable that this fact ought to have been put to the accused as a circumstance against them at the time of their examination u/s 313 Cr.P.C. In addition to that, what was also desirable for the learned Trial Judge, was that he ought to have put the circumstance of making the statement to the informant and others of having murdered the two deceased. What we find from the perusal of the statements of the two appellants recorded by the learned Trial Judge, copies of which in their photostat form are at pages 42 and 44 that there was not even a mention of the two facts by way of framing a question, even generally and this non-compliance to the provisions of section 313 Cr.P.C. itself had vitiated the whole trial. What had distressed us the most was that the learned Trial Judge was at all not trained in framing the questionnaire u/s 313 Cr.P.C., which was required to be put to the accused. Statement u/s 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice and fair trial. What also distressed us the most was that by a new amendment to sub-section (5) to section 313 Cr.P.C. liberty has been granted to the Public Prosecutor and the defence Counsel to assist the Court in framing relevant questions, which are to be put to the accused. On a bare perusal of the 5 questions, which were put to the two appellants, we could find that the learned Trial Judge was at all not concerned about this part of the trial and was merely fulfilling the formalities, as if it were a mere a paper work to be done by him. Thus, what we find is that by not religiously observing the formalities of section 313 Cr.P.C. the whole trial was vitiated and the accused persons could not have been convicted using the two most important circumstances, which were appearing against them, without seeking their explanation by properly examining them u/s 313 Cr.P.C.

On consideration of the evidence, which was adduced in the Lower Court, there was a serious doubt in the very prosecution story and the evidence itself indicated that the prosecution had not put forth the true and correct version of the story and was guilt of suppressing the version, which was firstly reported in time by appellant Mastan Shah. The charges, in our opinion, had not been established to the hilt. The accused persons deserved to be acquitted and we, accordingly, acquit them by setting aside the judgment of conviction and order of sentence, which was passed against each of them.

The two appellants of Capital Cases No. 2021 of 2013 who are the respondents of Death Reference No. 7 of 2013 are acquitted. The death reference is negatived.

Appeal is allowed in the terms as indicated above. Let the two appellants Mastan Shah and Shakila be released forthwith, if they are not wanted in any other case. Before we part, we want again to put on records some of our opinions regarding the trials, which are held by the Officers manning the Court of Sessions. No criminal trial or an appeal is decided by taking note of plethora of judgments either of the High Courts or of the Supreme Court. Criminal trials and appeals are decided on their respective facts and there could be seldom a need to look to any authority either of a High Court or of the Supreme Court to decide a case unless any intricate point of law or principle of criminal jurisprudence is required to be considered and an opinion rendered in deciding a particular issue of facts. It is too well-known to be pointed out that no judgment of a High Court or the Supreme Court works as a magic wand, so that if the precedent is shown to the facts of a case, a judgment could jump out of the record. The Judges are expected to marshal the facts appropriately and raise an inference, as per the provisions of section 114 and other provisions of the Indian Evidence Act. The Judges, manning the Court of Sessions, have also to keep in their minds some of the salutary principles of criminal jurisprudence, which set down the standards of proof for a prosecution and the defence. Unfortunately, we have been regularly finding that the Judges, manning the Court of Sessions, are making their judgments weighty and long by noting down citations-over-citations of various Courts, the principles enunciated in which, are not applicable to the facts of the case, which could have been in the hand of a particular Sessions Judge. The merit of judgment, and for that matter the merit of an Officer, is not judged by any higher Court by looking to the aspect of his judgment as regards noting down citations in his judgment; it is judged more by appreciation of facts by intelligence. Likewise, we often find that after having anyhow convicted the accused, the Judges do refer to some of the leading cases setting down the examples of rarest of rare cases, but they forget that merely holding a case to be one among the rarest of the rare cases, would not be enough. The Court has also to draw a balance-sheet of circumstances, which puts the case into the rarest categories of rare cases and then to judge those circumstances by preparing another sheet of extenuating situation. The Judges have never to be blood-thirsty, they have to be genuinely concerned about the interest of the accused as genuinely they have to be concerned also about the legal requirement that no offence goes unpunished, if the facts of the case so warrant. Number of deaths have never been held without any supporting evidence and in want of sound reasons for convicting the accused and the same could never be, in our opinion, always taken into account for inflicting sentences upon the convicted accused. Simple logical conclusions, which could be easily derived, are often missed out by the Judges, as had happened in the present case and a sentence of death was passed after inappropriate appreciation and marshalling of facts. We do not know how this judicial behaviour could be cursed, because not only the principles of framing charges alternatively are not found followed by the Judges, manning the Court of Sessions, they are also found lacking in applying the principles of criminal jurisprudence and are further found lacking in even appropriately framing the questionnaire u/s 313 Cr.P.C. We direct that a copy of this judgment may be sent to the two Hon''ble Judges who form a Committee, looking after the affairs of the Judicial Training and Research Institute, Lucknow, U.P., so that Their Lordships issue appropriate directions for devising a course-module on criminal trial in various sessions and head-wise, which may also include the art of judgment writing.