Acquittal: Seized weapons were not shown to the doctor who conducted the post-mortem

Appeal

Appeal against the conviction (modified) by the Hon’ble High Court

2. Criminal Appeal No. 722 of 2012 arises out of SLP(Crl.) No. 1764 of 2012 filed by Abdul Wahid and Babu (appellants herein). In this appeal, challenge has been made to the judgment and order dated 26.08.2011 passed by the High Court of Judicature for Rajasthan at Jaipur Bench (for short ‘High Court’ hereinafter) in D.B. Criminal Appeal No. 639 of 2003 whereby the High Court has upheld the judgment and order dated 10.03.2003 passed by the learned Additional Sessions Judge No. 4, Kota (‘trial court’ for short) in Sessions Case No. 13/1996 convicting the appellants under Sections 302/148 of the Indian Penal Code, 1860 (IPC). However, the High Court modified the conviction by holding the accused guilty of the offence punishable under Section 302 with the aid of Section 149 IPC while maintaining the sentence of life imprisonment.

2.1. Criminal Appeal No. 1266 of 2012 has been filed by Abdul Shakur (appellant herein) against the aforesaid judgment and order of the High Court dated 26.08.2011 affirming the judgment and order of the trial court and convicting the appellant under Sections 302/149 IPC and sentencing him to undergo imprisonment for life.

Facts

4. Faeem Ahmed lodged first information before the Maqbara police station, Kota, Rajasthan on 25.06.1988 at about 12:35 AM. He stated therein that Ahsan Ali and himself were on way to the residence of the in-laws of Ahsan Ali in Nayapura around 10:40 PM. While Ahsan Ali was talking to his relatives in the shop of his brother-in-law, he was seen by accused Abdul Sattar and Abdul Wahid. This was noticed by Faeem Ahmed who knew them and also about the strained relationship between Ahsan Ali on the one hand and Abdul Sattar and Abdul Wahid on the other hand. He suggested to Ahsan Ali that while returning home, they should change the route. However, Ahsan Ali insisted on going through the same route by which they had come. While returning, when they reached the place called Ghantaghar at around 12 midnight, suddenly accused Babu, Abdul Wahid, Abdul Sattar, Aziz @ Patti, Abdul Shakur, Bundu and Latur Ali accosted them and attacked Ahsan Ali and himself with knives etc. The first knife injury was inflicted by Babu on the stomach of Ahsan Ali whereafter he fell down from the motorcycle; the second injury was inflicted by Abdul Wahid on the chest of Ahsan Ali, also by knife; Abdul Sattar inflicted injury by a katar (sword) on the backside of Ahsan Ali. Abdul Shakur and Aziz @ Patti who were also trying to inflict injuries on Ahsan Ali, chased the informant Faeem Ahmed. He ran into the Gauri Hotel lane. When the said two accused persons did not find Faeem Ahmed, they returned back and started assaulting Ahsan Ali.

4.1. Informant somehow managed to escape and went to the police station to lodge the first information. He stated that Ahsan Ali was lying at the place of occurrence in an injured condition. The incident was witnessed by Wahid (brother-inlaw of Ahsan Ali) and Jameel. He alleged that due to previous enmity, the above named accused persons i.e. Babu, Abdul Sattar, Abdul Wahid, Abdul Shakur, Aziz @ Patti, Bundu and Latur Ali alongwith Jaffar Mohammad formed an unlawful assembly whereafter they assaulted Ahsan Ali with a murderous intent.

FIR

4.2. On the basis of the first information, FIR No. 48/1988 was registered on 25.06.1988 under Sections 147/148/149/307 IPC. Injured Ahsan Ali was taken to the hospital for treatment but he succumbed to his injuries whereafter Section 302 IPC was added to the FIR.

Investigation & Charge framing

4.3. Police carried out the investigation and on completion of the same, filed chargesheet against the 8 accused persons under Sections 147/148/149/302 IPC. Since it was sessions triable, the case was committed to the Court of Sessions whereafter charges were framed against the accused persons to which they pleaded not guilty and claimed to be tried.

Trial and sentence

4.4. Prosecution examined as many as 22 witnesses. On completion of the prosecution evidence, the accused persons were examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) who denied the charge and alleged false implication. The defence also examined 3 witnesses. It may be mentioned that trial against 4 accused persons viz. Abdul Sattar, Bundu, Latur Ali and Aziz @ Patti abetted on account of their death. On conclusion of the trial, trial court vide the judgment and order dated 10.03.2003 acquitted accused Jaffar Mohammed of all the charges. The present 3 appellants Abdul Wahid, Babu and Abdul Shakur were convicted for the offence under Sections 302/148 IPC and sentenced accordingly.

High Court appeal

5. Aggrieved by the aforesaid conviction and sentence, the 3 appellants preferred appeal before the High Court. The High Court vide the judgment and order dated 26.08.2011 (impugned judgment) affirmed the judgment and order dated 10.03.2003 of the trial court with the modification that the conviction was under Sections 302/149 IPC. The sentence of life imprisonment imposed upon the appellants was maintained. The appeal was accordingly dismissed.

Analysis

9. Submissions made by learned counsel for the parties have received the due consideration of the Court.

10. At the outset, it would be apposite to advert to the depositions of the material prosecution witnesses.

11.1. According to PW-1, he came running to the police station and submitted a written report. He knew all the accused persons and identified them in court.

11.4. PW-1 denied in his cross-examination that he had any previous enmity with the accused persons. He went to the site of the assault with the Assistant Sub Inspector (ASI) who took the injured Ahsan to the hospital in an auto rikshaw while asking PW-1 to take the motorcycle to the police station.

Informant admitted that he did not informed the police station about threat

11.5. PW-1 stated that he did not raise any alarm while the accused persons were assaulting Ahsan because they had warned that if anybody raised their voice, they would be killed. On further cross-examination, PW-1 stated that he knew Ahsan since his childhood days. He also knew the accused persons for about 8 to 10 years. The accused persons were having dispute with Ahsan since 7 days prior to the incident. In fact, Ahsan had told him that there could be a fight between the accused persons and him. Therefore, when he saw Wahid on a motorcycle, he apprehended about the possibility of assault and accordingly had warned Ahsan. However, he admitted that neither he nor Ahsan informed the police station about such a threat.

PW-4 turned hostile

12.5. On further cross-examination, PW-4 stated that he had not seen any type of maarpeet. At that stage, PW-4 was declared a hostile witness. He denied making any statement before the police and denied seeing any incident.

13. That bring us to the deposition of PW-3 Abdul Jameel. In his examination-in-chief, he stated that he had gone by a motorcycle alongwith PW-4 to Ghantaghar to have tea and paan. He also narrated the initial statement of PW-4 regarding infliction of knife and katar injuries on the person of the deceased by Babu, Wahid and Sattar. In cross-examination, he stated that he neither rescued Ahsan nor went to the police station to lodge report. He also did not go to the hospital. Later 19 on, he was declared as a hostile witness since he resiled from his previous statement.

Seizure witnesses declared hostile

14. Though a number of other witnesses including seizure witnesses testified before the court, many of them were declared as hostile. Otherwise also nothing tangible is discernible from their evidence. Therefore, it is not necessary to advert to and make an analysis of the evidence of all the witnesses. However it would be relevant to deal with the evidence tendered by PW-15 Dr. C.M. Srivastava, the medical officer who had conducted the post-mortem examination on the dead body of the deceased, PW-17 Sh. Surendra Vyas, who was the Station House Officer of the concerned police station at the relevant time, and PW-20, Prem Prakash Tank, the investigating officer.

Post-mortem examination

15.1. PW-15 stated that the cause of death was on account of excessive bleeding. According to him, death was due to haemorrhage shock as a result of multiple stab wounds over the body. He proved the post-mortem examination report dated 25.06.1988 (Exhibit P-14).

No blood stains on the handle and edge of the knife

16.3. PW-17 stated that when he reached the MBS Hospital in the morning at around 07:00 AM, the body of Ahsan was already moved to the mortuary by the police. He inspected the crime scene at around 11:00 AM on 25.06.1988 and drew up the site map. During investigation, the arrested accused Bundu voluntarily informed him that he had concealed the knife behind a stone in his house. On the basis of such disclosure, PW-17 went to the house of Bundu alongwith the said accused. There, accused Bundu produced a fish-shaped knife which was thereafter seized. Similarly, the arrested accused Latur voluntarily informed PW-17 that he had concealed a knife under one of the beds in his house. As per his disclosure, PW-17 took 24 the said accused to the house where he produced a knife from under one of the beds which was thereafter seized. Likewise, the arrested accused Abdul Shakur had voluntarily informed PW-17 that he had kept a knife on the slope of the house of his fatherin-law Abdul Salam. As per his disclosure, PW-17 went to the house of the father-in-law alongwith the said accused where he produced a fish-shaped knife from the slope of the house which was thereafter seized. No blood stains on the handle and edge of the knife were found. Similar statements were made relating to seizure of other knives and the katar.

Weapon recovered from an open place

16.4. In his cross-examination, he has stated that Prem Prakash Tank (PW-20) had interrogated accused Abdul Sattar. The recovery of the knife at the instance of Abdul Sattar was not done in his presence. He stated that the Deputy Superintendent of Police had ordered him and, therefore, he had gone to Bombay for recovery of the katar. He did not take the witnesses of Bombay while he went for recovery of the weapon. The same was recovered from an open place where anybody could come and go.

Recovery of dagger

17.1. PW-20 Prem Prakash Tank stated that accused Wahid had voluntarily given him information under Section 27 of the Indian Evidence Act, 1872 (‘Evidence Act’ hereinafter) that he had concealed one knife in a hotel in Alot. Similarly, accused Babu had given PW-20 information regarding concealment of one knife amidst household goods under the fireplace inside the room at the lower floor of his house. Likewise, accused Abdul Sattar informed him that he had concealed one dagger under the stones behind the Haji Ali Baba Mazar in Bombay.

PW.1 conduct appears highly unusual

18. Let us now briefly analyse the evidence of the prosecution witnesses as alluded to hereinabove. Coming first to the evidence of PW-1, his conduct appears to be highly unusual. When the police station was only 200 meters away from the place of crime, instead of rushing to the police station to save himself and also to inform the police about the assault on Ahsan, he goes into the lane of Gauri Hotel and hid himself there. He did not raise any alarm either. PW-1 contradicted himself by first saying that Ahsan was injured by the knife blows before he fell down from the motorcycle but in the same breath, he goes on to say that Ahsan was stabbed after he fell down. He also deposed that there were about 100 people in and around the crime scene but none came to the rescue of Ahsan which is also quite unusual. Besides being entangled in several criminal cases, it has also come on record that he is a stock witness of the police to depose in favour of the police in other cases including in a case where one of the present accused persons Aziz @ Patti was an accused. Evidence of such a witness without further corroboration cannot form the basis to convict an accused.

Sample of blood soil was not matched with the blood of the deceased

20. Insofar the investigation is concerned, the same is marred by glaring inadequacies striking at the root of the prosecution case. Firstly, from the evidence of PW-17 and PW20, it is evident that the motorcycle which was being driven by Ahsan when he was assaulted was not seized. PW-17 has stated in his evidence that he did not see any bloodstain on the front wheel, petrol tank and seat of the motorcycle. PW-15, the doctor who had conducted the post-mortem examination on the dead body of the deceased, deposed that Ahsan died because of profuse bleeding. If that be so, certainly there would have been blood stains on the said motorcycle. To make matters worse, PW17 in his cross-examination stated after looking at the site map that there was no motorcycle at the place where Ahsan was lying injured. Besides, the investigating officer ought to have collected sample of blood soil and sent the same for forensic examination which would have proved whether the said blood matched the blood of the deceased. But this was not done.

Seized weapons were not shown to the doctor who conducted the post-mortem

21. Though PW-17 and PW-20 stated about the recovery of the weapons on the basis of information given by the accused 31 persons, the manner in which the recoveries were made and the circumstances surrounding the recoveries made the recoveries highly suspect. That apart, the alleged recoveries were made after several days of the incident and no bloodstains etc. were found on the weapons. PW-15, the doctor who had conducted the post-mortem examination, deposed in his evidence that the seized weapons were not shown to him. As a matter of fact, the knives etc. were also not produced in court. Besides, all the seizure witnesses turned hostile. Therefore, Section 27 of the Evidence Act cannot come to the aid of the prosecution. Moreover, the clothes of the accused were not seized and sent for forensic examination to find out whether there were any bloodstains. Such examination would have revealed whether there were any bloodstains on the clothes; whether those bloodstains were of human blood; and whether those matched the blood of the deceased.

Prosecution did not connect the accused to the murder

24. There is no doubt that the death of Ahsan is homicidal. Medical evidence has also confirmed multiple stab injuries on his body leading to profuse bleeding and death. According to the prosecution, it is the accused who had committed murder of Ahsan. Therefore, it is for the prosecution to connect the accused to the murder of the deceased by producing credible and legally admissible evidence. However, as we have seen, there is no credible evidence at all to connect the accused persons with the homicidal death of Ahsan. In such circumstances, the appellants are entitled to the benefit of doubt.

Conclusion: Acquitted

25. Consequently, we allow the two appeals by setting aside the impugned judgment of the High Court dated 26.08.2011 and of the trial court dated 10.03.2003. Conviction and sentence of the appellants are accordingly set aside.

26. Since the appellants are on bail, their bail bonds are discharged.

Party

Abdul Wahid & Anr – State of Rajasthan – Criminal Appeal No. 722 of 2012 – 2025 INSC 295 – February 28, 2025