CHAUHAN, J. - (1.) THE alleged murder of Shakir @ Guddu, in the dead of the night, the discovery of his dead body in a Nala (culvert) the next morning, the testimony of a chance witness and splattering of circumstantial evidence led to the conviction of the appellants, Kasim Beg, (appellant No. 1, for short), Nafeesa Bano, (appellant No. 2, for short) and Ballu Khan (appellant No. 3, for short) for offences under Sections 302, 201 IPC. Vide judgment dated 2. 8. 2004, the Additional Sessions Judge (Fast Track) No. 2, Kota, convicted the appellants for offence under Section 302 IPC and sentenced them to undergo Life Imprisonment and to pay a fine of Rs. 2,000/- and in default thereof, to further undergo two months' S. I. He also convicted them for offence under Section 201 IPC and sentenced them to five years R. I. and to pay a fine of Rs. 1000/- and in default thereof, to undergo one month's S. I. Hence, these appeals before us. As both the appeals arise out of the same impugned judgment, the appeal are being decided by this common judgment.
(2.) THE brief facts of the case are that on 23. 6. 2003, Shabir Ali (PW. 1) submitted a written report (Ex. P. 1) to the police wherein he claimed that "on the night of 22. 6. 2003, his younger brother Shakir @ Guddu left his house, but never came back. In the morning, he was informed that there is a dead body, which is lying in the culvert. When he went there, he discovered that it was his brother's body. THEre were certain injury marks on the head and the ear of the dead body. Someone in the crowed told him that a gunny bag, which was tied with a rope, covered the head. THE body was lying half in water and half outside. People had pulled the body out of the water and had untied the gunny bag. THE gunny bag and the rope were lying near the body. He further claimed that somebody had killed his brother in the night. His maternal uncle, Abdul Naeem told him that around 10. 30 at night, he had seen Shakir going towards Kasim's house. He further claimed that he saw a trail of blood droplets from the place where the body was lying to Kasim's house, which is situated in the culvert itself, and ending there. He suspected that someone had killed his brother where the trial of blood droplets ended. He further suspected that the body had been dragged and dumped at the place where it was discovered. " On the basis of the written report, a formal FIR (Ex. P. 11) was chalked out for offences under Sections 302, 201 IPC. Subsequently, during the course of investigation, the appellants were arrested. A charge sheet for offence under Sections 302, 201 and 34 IPC was submitted against them. In order to support their case, the Prosecution examined 13 witnesses and submitted 36 documents. Although the statements of the accused appellants were recorded under Section 313 Cr. P. C. , but no witness was produced by the defence. But, the defence did produce seven documents to fortify their case. After going through the oral and documentary evidence, the learned Additional Sessions Judge convicted the appellants as aforementioned. The Prosecution story, as unfolded during the trial, is that Shakir, the deceased, had an illicit relationship with Nafeesa, Kasim wife. Meanwhile, Ballu, appellant No. 3, also had an illicit relationship with Nafeesa, appellant No. 2. When Kasim and Ballu discovered Shakir's relationship with her, the three of them-the appellants, decided to kill him. According to PW. 2 Badri Bai, the appellants Kasim and Nafeesa, along with their children, a son and a daughter, and Ballu came to her house between 11. 00 to 12. 00 O'clock at night to watch a firm on T. V. After about half an hour or so, Kasim and Ballu left her house. Nafeesa and her children stayed at Badri house. When she asked Nafeesa, "who was the man with Kasim?" She was told that it is Ballu. She further claimed that both Nafeesa and she went to sleep. Around 5. 00 O'clock when she woke up, she found neither Nafeesa, nor her son at her house. Only Nafeesa's daughter was sleeping in her house. Around 7. 00 O'clock in the morning Kasim came to her house and took his daughter away. According to PW. 3 Om Prakash, who is Badri Bai's brother, Kasim, Nafeesa and Ballu came to their house around 12. 00 O'clock in the night to watch a movie. According to him, Nafeesa stayed throughout the night at Badri Bai's house. It is only around 5. 00 O'clock that Kasim and Ballu took Nafeesa and her son away. He further states that Nafeesa was wearing a Salwar Kamiz when she came in the night, but there were no bloodstains on it. On the other hand, according to PW. 6, Shamim Bano, the alleged eyewitness, when she was returning around 10. 30 to 11. 00 o'clock after having her meals at Janglee Shan Baba, she saw Nafeesa standing outside her house. She further states that when Nafeesa saw her, she went inside her house. She further states that Nafeesa did not close the door and she saw Ballu hitting Shakir with a Saria (iron rod) (iron rod) once on the face and once on the forehead. She also saw Nafeesa striking Shakir with a knife on his ear. She further claims that when Shakir shouted, Kasim put his hand on Shakir's mouth. However, she did not tell any of her family members about the alleged incident. She claims that the next morning, when the dead body was discovered, she told Dheeraj Verma, probably a Station House Officer at Kishorepura Police Station, that she had seen the murder on the previous night. However, the prosecution did not examine Dheeraj Verma as Prosecution witness. The Prosecution further claimed that upon information given by Kasim, a blood stained Saria (iron rod) was recovered, upon information given by Ballu, a blood stained Saria (iron rod) was also recovered and upon information given by Nafeesa, a blood knife and her blood soaked Salwar Kamiz were recovered. The Prosecution further alleged that the place where the dead body was discovered, there was a trail of blood droplets from that site to Kasim's house. PW. 13, Akhilesh Kumar, the investigating Officer, further claimed that when he visited Kasim's house, he saw red colored water in the drain coming out of the house. But, the said mixture of water and of alleged blood was neither collected by the police, nor sent for analysis to the FSL. In order to convict the appellants, the trial Court had relied upon the testimony of PW. 6 Shamim Bano as she is the sole eyewitness of the alleged incident. It has also relied on the testimony of PW. 2 Badri Bai, PW. 3 Om Prakash, PW. 7 Dr. Govind Gupta and PW. 13 Akhilesh Kumar. It has also relied on the circumstantial evidence of the recoveries at the information of the appellants, the trail of blood and the possible motive of illicit affair between the deceased and Nafeesa for the alleged murder. On the basis of direct and circumstantial evidence, it has convicted the appellants.
(3.) MR. Amarjeet Singh Narang, the learned counsel for the appellant, has argued that initially the Prosecution case rested solely on circumstantial evidence. However, in order to strengthen its case, the Prosecution introduced Shamim Bano, PW. 6, as an eyewitness. She is not only a chance witness, but is also an unreliable one. The Prosecution case rests on the testimony of the sole eyewitness. But, since she is not a witness of sterling worth, the conviction cannot be based on her testimony. He has further argued that the Prosecution evidence is self-contradictory. On the one hand, Shamim Bano claims that she has witnessed the murder committed by the three appellants, but on the other hand, PW. 3 Om Prakash claims that Nafeesa was at their house from 11 o'clock in the night to 5 clock in the morning. He has further contended that in case Shamim Bano's testimony is discarded, then only scattered circumstantial evidence exist, which do not point unerringly to the appellants' guilt. Hence, they cannot be convicted on the basis of the circumstantial evidence. Lastly, he has argued that the Prosecution case has too many loose ends; therefore, the benefit of doubt should be given to the appellants. And they should be acquitted. MR. Unus Khan, learned counsel for Kasim and Nafeesa has echoed MR. Narang's arguments. Therefore, they need not be repeated. On the other hand, Mr. M. L. Goyal, the learned Public Prosecutor has argued that Shamim Bano, PW. 6, is a reliable witness. And the conviction can be based on the testimony of a sole eyewitness. Secondly, a strong motive for getting rid of Shakir exists in the minds of Kasim and Ballu as the first is married to Nafeesa and the second has an illicit affair with her. Since Shakir also had an illicit affair with Nafeesa, therefore, Shakir had to be eliminated. Thirdly, that the recoveries made on the basis of the information given by the appellants, the FSL Report, the post-mortem report and the medical evidence, the trail of blood from the culvert to Kasim's house all unerringly point to the appellants guilt. Therefore, he has supported the impugned judgment. We have heard the learned counsels for the parties and have examined the record before us. ;