Decided on August 08,2012

SHAMSHAD Appellant
State Uttaranchal Respondents


BARIN GHOSH, J - (1.) A First Information Report was lodged by the brother of the victim stating that victim has been kidnapped while he was on a rickshaw, which was, then, being pulled by Wasim (P.W.2). This information led to lodgment of a First Information Report, On 22nd January, 2005, Police which was investigated upon. recorded statements, amongst others, of one Mohd. Shahid (P.W.3), in course whereof, he allegedly disclosed involvement of the appellants and one Akhtar with the crime alleged. On 22nd January, 2005, appellants and Akhtar were arrested. Subsequently, appellant No. 1 Shamshad allegedly disclosed before the Police the whereabouts of the dead body and, on the basis of such disclosure, the dead body was recovered from a pond situate in the field of Rahman and about 100 paces away from the common tube-well. The dead body was, accordingly, sent for post-mortem. The Doctor conducted post-mortem on 24th January, 2005 and reported that the death has taken place by reason of strangulation and the same might have had taken place any time between 5 to 12 days before the post-mortem was conducted. In the meantime, on 23rd January, 2005, statements of the Rickshaw Puller (P.W.2) were also recorded, when he had disclosed involvement of the appellants and the said Aktar with the crime in question. Thus, the investigation was completed and a charge-sheet was filed. On the charge-sheet, charges were framed against the appellants and the said Akhtar for offences punishable under Sections 364, 302 read with 34 and 201 of the Indian Penal Code. Appellants and the said Akhtar having denied the charge, trial commenced.
(2.) AT the trial through Shahid Hussain (P.W.5), prosecution sought to establish the motive of the crime. It was alleged by P.W.5 that the deceased, a bachelor, was having an extra marital relationship with the wife of appellant No. 1 and, in relation thereto, incidents had already taken place earlier, but still then, the relationship was going strong and that was the reason for appellant No. 1 taking revenge by kidnapping followed by murdering the victim. Prosecution did not bring anyone to corroborate the evidence of P.W. 5. The evidence, thus given by P.W.5, was also not otherwise corroborated. Allegations, made by P.W.5 against appellant No. 1, were not put to appellant No. 1 under Section 313 of the Code of Criminal Procedure. Therefore, the prosecution failed to bring on record any evidence pertaining to the motive of any of the appellants for commission of the offences, as were charged against the appellants and the said Akhtar. P.W. 3, whose statements were recorded by the Police on 22nd January, 2005, deposed before the court that though he had seen that there was a scuffle involving the victim at or around the time, when the victim was kidnapped, but he does not know, apart from the victim, who else were involved in that scuffle. In that view of the matter, P.W.3 was declared hostile. Subrato Pande (P.W.7) proved discovery of the dead body of the victim. While deposing before the trial court, P.W.7 stated that he was told by appellant No. 1 that appellant no.1 murdered the victim five days ago and dumped the body of the victim in the pond. According to said witness and also according to the medical report, the death took place at least 4/5 days before the same was recovered. There is no dispute that the dead body was recovered from a pond situate inside a field approximately 100 paces away from common tube- well. If after causing death to a person, his dead body is dumped into a water body and the same remains for a period of 4/5 days in the water body, question of discovering the same, at the instance of the pointing out by somebody 4/5 days after such dumping, is suspicious. According to the prosecution story, while the victim was riding cycle rickshaw of P.W.2, he was kidnapped. P.W.2 informed the informant Jakir Hussain (P.W.1), brother of the victim about the incident of kidnapping. P.W.1 filed the First Information Report pertaining to kidnapping of the victim. As aforesaid, in the First Information Report, no one was named as accused. In the circumstances, evidence of P.W.1 is of little significance. However, in course of deposition before the court, he stated that whatever he had recorded in the First Information Report is based on what he gathered from P.W.2. Thus, the evidence of P.W.2 is the most important and significant evidence, which was and still is required to be taken note of. P.W.2, in his deposition, stated that when he was pulling his cycle rickshaw and the victim was seated thereon, victim was removed from the back side of the rickshaw by the appellants and the said Akhtar. He was beaten up by appellant No.1 and was also threatened with dire consequences in the event he reveals the incident. P.W.2 also deposed that he went to P.W.1, informed him about the incident and thereafter accompanied P.W.1 to the Police Station for the purpose of recording the First Information Report. He stated that he was scared of the threat that was meted out to him and one of the persons involved in the incident, namely, appellant No.1 Shamshad also reached the Police Station and in the Police Station also threatened him with dire consequences and, as a result, he remained quiet and did not disclose the names of the persons involved with the incident. He stated that after the First Information Report was registered, he accompanied the Police Officers to the place of incident and disclosed to the Police Officer concerned that the persons involved with the incident of kidnapping were using some kind of veil and, accordingly, he was unable to recognize them. He thereafter said that 6-7 days later, he went to the Police and disclosed the names of the appellants and the said Akhtar as persons involved with the incident of kidnapping. As aforesaid, according to the police report and the evidence of the Investigating Officer, such statements of P.W.2 were recorded only on 23rd January, 2005. P.W.2 held out that one Akhtar was shown by the Police in the Police Station, who was then recognized by him, but Akhtar, who was in the box meant for the accused, was not the same Akhtar. In view of such statement having been made, Akhtar was exonerated of the charge as was levelled against him. The court below, while noticed that Akhtar said to have had been shown to P.W.2 was not the accused Akhtar, did not call upon the prosecution to clarify the situation. The court below did not take notice of the fact that P.W.2 did not disclose, how P.W.2 mustered courage to come up with the names of the appellants and of Akhtar, which he could not disclose contemporaneously, because he was threatened and was scared.
(3.) HAVING regard to the nature of evidence, as was brought on record by the prosecution, we have no other option but to hold that the appellants were entitled to benefit of doubt, as it was unsafe to rely on the sole evidence of P.W.2, who acted in the manner indicated above. The only other piece of evidence against appellant No.1 was discovery at his pointing, which we have indicated already, in the circumstances of the case, is not believable.;

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