Shakeel Ahmad vs State of U.P.

Vipin Sinha, J.—Heard Sri G.S. Chaturvedi, learned senior advocate, assisted by Sri Alok Ranjan Misra and Sri Kamal Kumar Singh learned counsel for the appellant and Sri Akhilesh Singh, learned Government Advocate assisted by Sri Rajeev Gupta for the State.

The present appeal has been filed being aggrieved against the judgment and order dated 22.12.2011 and 10.1.2012 passed in S.T. No. 15 of 2000 by Sri D.C. Singh (H.J.S.), Additional Sessions Judge, Court No. 3, by virtue of which the sole appellant Shakeel Ahmad (accused) has been convicted and sentenced herein as under:

"(a) Under Section 302, I.P.C. -death sentence + a fine of Rs. 25,000 and in case of default in payment of fine, further rigorous imprisonment of five years.

(b) Under Section 376, I.P.C. life imprisonment + a fine of Rs. 15,000 and in case of default in payment of fine, further imprisonment of two years.

(c) Under Section 201, I.P.C. 7 years rigorous imprisonment + a fine of Rs. 2,000 and in case of default in payment of fine, one month additional imprisonment."

In the present case, the sole accused Shakeel Ahmad who was aged about 43 years, at the time of incident, has been accused of brutally raping and causing murder of a child aged about five years namely Km. Afreen daughter of Ishrat Ali.

The factual scenario which emerges is to the effect that Ishrat Ali, father of Km. Afreen had lodged an F.I.R. on 26.11.1999 at about 10.35 p.m. at P.S. Kotwali, District Mau. The averments as made in the F.I.R. were to the effect that his daughter namely Km. Areen aged about 5 years was missing since 21.11.1999 at about 3.00 p.m., with regard to which a gumsudgi report was filed/given to the police on 24.11.1999. On 26.11.1999, one Rais Ahmad son of Khalikurrehman had given information to the first informant, Ishrat Ali that he had seen his daughter in the company of one Shakeel Ahmad. Thereafter, the said Ishrat Ali confronted Shakeel Ahmad who gave only vague answers and that thereafter Ishrat Ali had gone to the vicinity of the residence of said accused Shakeel Ahmad where he found foul smell coming from the vicinity/backyard of the house of Shakeel Ahmad and thereafter, he informed the police and on the arrival of police at about 9.00 p.m., at night, the body of his daughter Km. Afreen was recovered from a room existing in the backyard of the house of Shakeel Ahmad which was being used for storing ''kabad'' (refuse) and thereafter, the F.I.R. was lodged.

The post-mortem on the body, which was found on 26.11.1999 at about 9.00 p.m. was done on 27.11.1999 at about 3.15 p.m. and as per the post-mortem report and information of doctor the cause of death was asphyxia due to strangulation and factum of rape was also confirmed by the doctor.

It was further mentioned that the death was possible on 21.11.1999, any time after 3 p.m. in the night.

A perusal of the post-mortem report shows herein as under:

"Body was blotted and smelling foul, eyes and mouth open, tongue protruded and swollen, eye balls bulging from socket, rigor mortis absent, abdomen distended blisters present over pelvic and perineal region, greenish colouration present in both iliac fossa. Neck tied with cloth rope in three layers. Scalp hair easily pulled out and maggots crawling all over the body."

Ante Mortem Injuries.--(I) Ligature mark 26 cm. x 2 cm., around the neck interlying the cloth rope tied in three layers, knot present over back of neck, on opening the knot, the size of rope is 170 cm. on cut the ligature mark, muscles and soft tissues are echymosed.

(II) Labora majora swollen and reddened and perineal tear present at 6 o''clock position."

Cause of death has been shown as asphyxia as a result of ante-mortem strangulation. It is being reiterated that as per the doctor''s opinion, there were signs of rape on the body of the deceased and further the death was possibly caused on 21.11.1999 any time after 3.00 p.m. in the night.

In support of its case, the prosecution has examined eight witnesses including the doctor who had conducted the post-mortem, from the side of defence apart from the statement of the accused under Section 313, Cr.P.C. One other witness Ghani Ahmad Nomani, advocate was examined as D.W. 1.

Sri Rais Ahmad son of Khalikurrehman was examined as P.W. 1, who in his statement, even though has admitted the recovery of the body but however, has resiled from the role as attributed to him in the F.I.R. However, he further submits that:

Thus, it is evident that even though as per the F.I.R., it was alleged that Rais Ahmad had informed the first informant Ishrat Ali of having seen her daughter Afreen with the accused Shakeel Ahmad but no such statement has been given by him in his statement recorded as P.W. 1.

Khursheed Ahmad was examined as P.W. 2, however, the said witness was declared hostile.

Ajhar Ali was examined as P.W. 3 who is a witness to the panchyatnama and has proved the panchayatnama.

Ishrat Ali, who is the first informant was examined as P.W. 4, who in his statement has reiterated his averments as made in the F.I.R. However, he has further submitted in his statement that:

He had further stated that Shakeel Ahmad alongwith his family members consisting his wife, two children, two sisters was residing in the same house and that the father of Shakeel Ahmad was also alive at the time of incident and was living in the same house.

P.W. 4, Ishrat Ali in his statement has further submitted that:

Mohd. Tayyab, son of Abdul Gaffar was examined as P.W. 5. Mohd. Tayyab is the brother of Ishrat Ali, who is the first informant, in his statement he has stated that Rais Ahmad had informed his brother Ishrat Ali on 26.11.1999 that he had seen his missing girl Afreen in the company of accused-appellant Shakeel Ahmad. He has further stated that:

P.W. 5, Mohd. Tayyab has also stated that announcement was made vide loudspeaker regarding missing of the girl Afreen in the village and almost everybody in the village was aware regarding missing of the said child and in fact everybody was searching for the girl. He has also stated that:

The said witness has lastly stated that:

Shyam Nath Singh was examined as P.W. 6 who is the Investigating Officer, in his statement he has stated that Gumsudgi report was lodged on 24.11.1999 at about 10.20 a.m. He has further stated that:

He has also stated that:

Dr. Sanjeev Saxena was examined as P.W. 8, who in his statement has opined to the following effect:

Apart from the aforesaid prosecution witnesses, Sri Ghani Ahmad Nomani, advocate was examined as D.W. 1, who in his statement has stated that he is known to Ishtiyaq Ahmad, who is the brother of Shakeel Ahmad. On 26.11.1999, Sri Ishtiyaq Ahmad had informed him telephonically regarding the discovery of a body in a tin-shed from where a foul smell was coming and that thereafter he had accompanied Ishtiyaq Ahmad to the house of accused-appellant Shakeel Ahmad and had thereafter approached the police and informed them.

Sri Gopal Chaturvedi, learned senior advocate appearing for the accused-appellant has strongly contended that as there was no ocular evidence on record which may connect the accused-appellant with the actual crime and as nobody has seen the accused committing the actual act of rape and murder of deceased Km. Afreen, the appellant could not have been convicted for the offences as has been done.

It has been further contended that the place from which the body was recovered was a room covered by tin-shed located within the premises of the house of accused-appellant Shakeel Ahmad, which was surrounded by a very small boundary wall and was easily accessible to the outsiders and thus, mere discovery of a body from the room situated within the premises (backyard) of the campus of the house of the accused will not by itself be sufficient to convict the accused for a crime under Sections 302/376, I.P.C. and thus, in all probabilities, the dastardly act has been done by some outsider and thereafter, the body has been kept/thrown there.

It has further been submitted that as per the evidence on record the accused was living in the same house within the same premises alongwith his wife and his two children and two sisters and also his father and thus, it was not possible for him to have committed the alleged act of rape and murder of a small child in the presence of so many family members.

An attempt has also been made by the learned senior counsel to show that any outsider could have committed the murder after committing rape on a small child and thereafter, he could have thrown the body at the place from where it was recovered as the place from where the body was located, was accessible to general public, in view of small height of the boundary wall and thus, the rape and murder could have been committed by an outsider, with the intention of implicating the accused falsely.

It has also been submitted that even as per the doctor''s report, foul smell would start coming within a few hours after the death of a person and after two and three days, it would be strongly pungent and thus, even if the appellant had committed the crime, he would have surely disposed of the body and would not have waited for so many days and in any view could have easily thrown the body outside and could not have kept it within the premises itself and moreover, a person cannot be convicted on the ground of solitary evidence of recovery of a body.

Learned A.G.A. on the other hand has submitted that the body has in fact been recovered from the backyard of the same premises of the house in which the accused was residing and that too from inside a room.

Learned A.G.A. on the contrary has argued, on the basis of finding recorded by the court below itself, that so far as the disposal of the body is concerned, it is apparent that the body was kept hidden with the intention to dispose of the same at some convenient time, however, as the applicant could not find the opportune time to dispose of the same, he was caught and the body was discovered from his own house.

It has been further argued that the court below has recorded a finding that there were looms working around the clock especially at night and there being a lot of activities in the said area with people coming in and going out, the accused could not find time to dispose of the same and also on account of the fact that the people of the adjoining area were well aware of the fact of the missing girl.

However, a perusal of the entire evidence on record shows that it is not being disputed that the body was recovered from a bigger room. which is adjacent to a smaller room and which is located in the backyard of the house of accused Shakeel Ahmad within the same premises and the entire area is surrounded by a small boundary wall of about 1.5 to 3 feet. It has also not been disputed that the body was not found at any open area adjacent to the boundary wall but it was found inside the room and to some extent hidden in refuse (kabad).

We have also perused the photographs which are available on record, from perusal of which it is apparent that there was small amount of blood on the vaginal region of the deceased girl and apart from the ''perineal tear'' as mentioned by the doctor in the post-mortem report there was no other injury on the body of the deceased and thus, in view of this specific fact that there being no other injury on the body apart from the perineal tear and discovery of mud underneath with blood, shows that brutal act of rape on the girl was committed on the spot itself otherwise there was no occasion for discovery of ''khoonaludamitti'' from the spot itself and thus, discovery of ''khoonaludamitti'' from the spot itself clinches the fact that the act of rape was committed on the spot itself from where the body was recovered.

It has also to be appreciated that the body was recovered from inside the room and not from any open area or by the boundary wall. Thus, it is apparent that the foul deed has been committed by an insider/inmate of the house itself as it is not possible for an outsider to take the child inside the room located within the premises of somebody else''s house and commit rape and thereafter, hide the body under kabad. Thus, it is apparent that the said crime has been committed by an inmate of the house itself and none else.

A perusal of evidence on record shows that even though in the F.I.R. it has been mentioned by Ishrat Ali, the first informant that Rais Ahmad had given information to the first informant that he had seen the daughter of the first informant in the company of Shakeel Ahmad but, however, Rais Ahmad who was examined as P.W. 1, in his statement has completely denied the said fact. In his statement, he has categorically stated that:

As far as P.W. 2 is concerned, he was declared hostile. P.W. 5 is Mohd. Tayyab, who is the brother of the first informant namely Ishrat Ali, in his statement has submitted that Rais Ahmad had informed his brother Ishrat Ali that he had seen Km. Afreen in the company of Shakeel Ahmad.

A faint plea has been taken by the accused-appellant that the body was discovered by the accused-appellant himself who had thereafter, informed his brother who is an advocate residing separately, who in turn informed D.W. 1 and D.W. 2 and they together had informed the police. However, the said point was found to be incorrect as is evident from the statement of P.W. 6 who specifically stated in his statement that:

In this regard, the court below has recorded a categorical finding to the effect that:

It may further be appreciated that had the crime been committed by an outsider, he would have simply thrown the body inside the premises and he would not have entered into the premises itself with the sole purpose of hiding the body in the ''kabad''. Moreover, the recovery of ''khoonaludamitti'' from the spot itself and there being no other injury on the body of the deceased except for the ''perineal tear'', makes it apparent that crime was committed on the spot itself from where the body was recovered and that too by an inmate of the house within which premises the room was located from which the body was recovered.

Sri G.S. Chaturvedi, learned senior advocate contends that it is admitted position on record that on the date of occurrence, the father of the accused-appellant was also residing in the same house, who has neither been examined nor any inquiry has been conducted with regard to the father of the accused who, was the other male member living in the said house and thus, there being two male members living in the same house and there being no ocular evidence on record, there was nothing on record to fix the identity of the accused, thus, it would not be safe for the court to presume that the accused-appellant alone is guilty for the present crime. It has also come on record that the father of the accused-appellant has expired some time in the year 2006.

This Court finds substantial force in the contentions of learned senior advocate appearing for the accused-appellant that there being two male members in the house from where the body was recovered, the identity of the accused could not be fixed on the basis of meagre evidence available on record and thus, the accused-appellant is entitled to acquittal.

The facts and circumstances of the case show that entire story of prosecution is based on circumstantial evidence.

Needless to say that very edifice of the circumstantial evidence got destroyed at the initial stage when Rais Ahmad, P.W. 1 did not support the evidence of last seen.

This Court has no hesitation in holding that prosecution has not been able to establish its case with clinching evidence that the deceased was seen lastly in the company of the accused-appellant.

The story of circumstantial evidence got further demolished when evidence came on record that the appellant was not the sole male inmate of the house in question.

In reference to cases where there is no direct evidence and the decision has to rest on circumstantial evidence, the Supreme Court in a line of decisions has consistently held that such evidence must satisfy the following tests:

"(1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be consistent with his innocence."

The Apex Court in the case of Dhananjay Chatterjee alias Dhana Vs. State of W.B., , while considering the question of circumstantial evidence has noted as under:

"It is settled law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis, except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinise the evidence lest suspicion takes the place of proof."

The Apex Court even as in the year 2014 in the case in Dhan Raj @ Dhand Vs. State of Haryana, , while considering the question of circumstantial evidence has observed as under:

"17. We have noticed in the case of Madhu v. State of Kerala (supra), facts of which were discussed earlier, that this Court inspite of the factum that the accused were sighted close to the place of occurrence at around the time of occurrence reversed the conviction as guilt was not established. In the present factual matrix, it is only an interested witness stating that the accused had come asking for the deceased. This factum alone does not establish guilt as no other evidence is found that they were near the Bizdipur area where the crime was committed or had visited the house of the deceased.

For establishing the guilt on the basis of circumstantial evidence, it is also to be taken into account that the chain of circumstantial evidence must be completed. It appears from the facts that the said chain of circumstantial evidence cannot be concluded in the manner sought to be done by the prosecution. The circumstances must be conclusive in nature. In the instant case, after analysing the facts, it appears to us that there is a gap between the circumstances tried to be relied upon to hold the appellants as guilty. Thus, we find many loopholes in the case of the prosecution and grounds on which the High Court has convicted the accused appellants.

We would refer to the decision of this Court in Munish Mubar v. State of Haryana, wherein Dr. Justice Chauhan has very aptly and succinctly stated the following:

The circumstantial evidence is a close companion of factual matrix, creating a fine network through which there can be no escape for the accused, primarily because the said facts, when taken as a whole, do not permit us to arrive at any other inference but one indicating the guilt of the accused."

However, another important aspect of the case is that the body of the deceased girl was recovered from the house/room located within the premises of the house of the accused-appellant and that body was found hidden in the kabad, therefore, it can be safely presumed that the accused-appellant at least had intention of destroying the evidence of the case by disposing of the body at some convenient time which unfortunately the accused-appellant could not get.

It is also evident from the report of the doctor which shows that:

Thus, it can also be safely presumed that at least inmates of the house including appellant were aware of the foul smell of the body and thus, it was incumbent upon them to have informed the police regarding smell emitting from the room located in the backyard of their own house, which also, however, has not been done by them. The burden under Section 106 of the Evidence Act has not been discharged by the appellant.

It is also being brought on record that after the judgment was reserved in the present appeal, an application has been filed on behalf of accused-appellant under Section 367 read with Section 391 of Cr.P.C. bringing on record the details of the family members who were residing in the said house at the time of alleged incident. As per the said application, apart from the father of the accused, who was alive at the said time and was living with the appellant, two other male members being sons of the accused-appellant were also living in the same house. However, the fact remains that with regard to two other male members who are the sons of the accused-appellant no reference was made either at the stage of investigation or at the stage of evidence. Even at the stage of 313, Cr.P.C. no reference was made to the male members whose names have been mentioned in the present application under Section 391, Cr.P.C.

This Court, at this stage, cannot permit the defence to come up with a new version and set up a new story/defence and accordingly, the said application is being rejected.

Keeping in view the aforesaid facts and circumstances of the case and the consistent legal position with regard to the circumstantial evidence or even to the fact as to whether the appellant was the sole male member residing in the said house, this Court deems it fit to record its displeasure in the lackluster manner in which the investigation has been conducted by the prosecution/State. It is obvious that the investigating agency did not take any pain whatsoever to inquire into the conduct of other male member of the family who was living in the same house or the premises from which the body was recovered or even to the fact as to whether the appellant was the sole male member residing in the said house.

Thus, in view of the contentions as raised by learned senior advocate appearing for the accused-appellant and the factual position as it exists on record, it is apparent that prosecution has miserably failed to fix the identity of the accused. There being no direct evidence on record, ocular or otherwise which may connect the present accused-appellant with the alleged crime and also in view of the fact that there was another male member (father) present in the same house against whom no inquiry was conducted, this Court has been left with no option but to disbelieve the story of the prosecution inasmuch as involvement of the accused-appellant is concerned under Sections 376/302, I.P.C. is concerned.

However, be as it may, in view of aforesaid facts and circumstances of the case, the conviction and sentence of the appellant under Sections 376 and 302, I.P.C. is set aside and the appellant is acquitted of the charges under Sections 376, 302, I.P.C.

The sentence and conviction under Section 201, I.P.C. is affirmed and the appellant who is in jail shall serve out the remaining sentence.

In view of aforesaid observation, the present appeal is partly allowed.