Appeal
1. The present appeals by special leave are preferred on behalf of appellant-Nusrat Parween and appellant-Ahmad Khan, assailing the judgment dated 19th January, 2011 passed by the Division Bench of the High Court of Jharkhand at Ranchi in Criminal Appeals upholding the separate judgments of conviction and orders of sentence passed by the 1st Additional Sessions Judge, Jamshedpur in Session trial cases, whereby appellant No. 1, appellant No. 2 and Abdul Rahman Khan/accused No. 3 were convicted for the offence punishable under Section 302 of the Indian Penal Code, 18607, and were sentenced to undergo life imprisonment.
Facts
Facts projected by the prosecution
Hamida Parween was married to Abdul Hamid Khan, who passed away two years before the incident. She lived with her three children in a house that was partially partitioned in favor of the accused-appellants. Despite this, the accused-appellants pressured her to give up her remaining share of the property. On March 11, 1997, after sending her sons to school, Hamida went missing. Her sons found the house locked when they returned. The next day, her body was discovered inside the house, showing signs of strangulation. The prosecution argued that the accused-appellants had a motive related to the property dispute and were last seen with the victim.
About appellants
The appellants in this case are Nusrat Parween and Ahmad Khan. They challenged their convictions and life sentences for the murder of Hamida Parween. The Supreme Court ultimately acquitted them, finding the prosecution’s evidence insufficient to establish their guilt beyond a reasonable doubt.
Appellants relationship with deceased
The appellants, Nusrat Parween and Ahmad Khan, were in-laws of the deceased Hamida Parween. Nusrat Parween was deceased’s sister-in-law, and Ahmad Khan was deceased’s brother-in-law. They were accused of pressuring Hamida Parween who is the deceased in this case to give up her share of the property, which led to frequent quarrels and deceased’s murder.
FIR lodged by P.W.4
The First Information Report (FIR) in the case was lodged by Md. Firoj, the brother of the deceased, Hamida Parween. He reported her disappearance to the police on March 12, 1997, after she went missing the previous day.
Inquest and post-mortem
The inquest on the deceased body was conducted and subsequently forwarded to post-mortem. The autopsy revealed several injuries including abrasions on the neck, waist, right elbow, left knee, and both hands, along with large bruises on the neck and a fractured hyoid bone. The cause of death was determined to be asphyxia due to pressure applied to the neck.
Final report
The charge sheet in the case is filed against Nusrat Parween and Ahmad Khan was after the investigation into the murder of Hamida Parween. The final report (charge sheet) included the names of the accused, the nature of the offense, and the evidence collected during the investigation. It detailed the events leading up to the crime, the motive, and the involvement of the accused. The charge sheet was submitted to the court, which then framed charges against the accused based on the evidence presented. The trial proceeded with the prosecution presenting its case to prove the guilt of the accused beyond a reasonable doubt.
The charge sheet in the Hamida Parween murder case listed eight accused persons. They were Nusrat Parween, Ahmad Khan, Abdul Rahman Khan, Sayeda Bibi, Rahemaa Khatoon, Reshma Bibi, Md. Shahnawaz, and Amirullah Khan. The charge sheet in this case filed for the offences under Section 302 and Section 34 of IPC.
Trial court conviction
All the accused were questioned under Section 313 of the CrPC and have denied the circumstances presented against them. The trial court however, found the prosecution’s case convincing and convicted Ahmad Khan, sentencing him to life imprisonment. The court acquitted Amirullah Khan, Rahemaa Khatoon, Md. Shahnawaz, and Reshma Bibi due to insufficient evidence. In a separate trial, Nusrat Parween and Abdul Rahman Khan were also found guilty and sentenced to life imprisonment, while Sayeda Bibi was acquitted for lack of evidence.
High Court confirmed the conviction against A1 to A3
The appellants Nusrat Parween (A1) and Ahmad Khan (A2) along with Abdul Rahman Khan, filed separate criminal appeals against their convictions and life sentences. The Hon’ble High Court upheld the trial court’s judgment, confirming the life imprisonment sentences for the appellants. Abdul Rahman Khan (A3) did not file an appeal. The appellants challenged the High Court’s decision in the Supreme Court through these special leave petitions.
Analysis: Discussion and Conclusion
5. We have heard learned counsel appearing on behalf of the parties and have pursued the evidence available on record.
Death of deceased is homicidal
6. There is no dispute that the case of prosecution is based on purely circumstantial evidence in the form of motive and the theory of last seen together, since no witness claims to have seen the alleged incident wherein Hamida Parween was done to death. The fact that death of Hamida Parween was homicidal was duly proved by the Medical Officer(PW15) in his evidence. The Medical Officer(PW15) also proved the post mortem report wherein a large number of injuries were noted on the dead body of Hamida Parween and the cause of death was opined to be asphyxia owing to strangulation. Thus, there is no doubt on the aspect that the death of Hamida Parween was homicidal in nature.
7. It is a well-established principle of criminal jurisprudence that conviction on a charge of murder may be based purely on circumstantial evidence, provided that such evidence is deemed credible and trustworthy. In cases involving circumstantial evidence, it is crucial to ensure that the facts leading to the conclusion of guilt are fully established and that all the established facts point irrefutably to the accused person’s guilt. The chain of incriminating circumstances must be conclusive and should exclude any hypothesis other than the guilt of the accused. In other words, from the chain of incriminating circumstances, no reasonable doubt can be entertained about the accused person’s innocence, demonstrating that it was the accused and none other who committed the offence. The law with regard to conviction based on circumstantial evidence has been crystalised by this Court in the case of Sharad Birdhichand Sharda v. State of Maharashtra [(1984) 4 SCC 116], wherein it was held:
“Para. 153”
Analysing circumstantial evidence such as motive and last seen together
8. Having noted the principles governing a case based purely on circumstantial evidence, we now proceed to discuss the evidence led by the prosecution in order to bring home the charges against the accused-appellants. The prosecution portrayed the following circumstance in its endeavour to establish the charge of murder against the accused-appellants: –
(i) Motive, i.e., to say that Hamida Parween(deceased) and the accused-appellants were involved in an ongoing strife, wherein the accused-appellants were pressuring her to give away her remaining share in the property in question i.e., Holding No. 13. On the morning of 11th March, 1997, Hamida Parween(deceased) and accusedappellants quarrelled with each other which fueled the accused-appellants with such animosity that they murdered her for usurping her property.
(ii) ‘Last seen together’ theory i.e., to say that Hamida Parween(deceased) and the accused-appellants were the only persons present in Holding No. 13 when her sons, Md. Sahid Khan(PW3) and Md. Javed Khan left for the school. The accused-appellants absconded from Holding No. 13, after killing Hamida Parween and hiding her dead body inside the house and locking it up from the outside so as to conceal the evidence of the crime.
Analysing motive: Motive is established assumes great significance to the case
9. Firstly, we proceed to consider the theory of motive. It is trite law that proof of motive is not sine qua non in a case of murder. However, in a case based purely on circumstantial evidence, motive if properly established, assumes great significance and would definitely provide an important corroborative link in the chain of incriminating circumstances and strengthen the case of prosecution. The reliance in this regard may be placed on the case of Nandu Singh v. State of Chhattisgarh [2022 SCC Online SC 1454]
Witnesses made omnibus allegations only
10. Hamida Parween(deceased)’s son Md. Sahid Khan(PW3), her brother Md. Firoj(PW4), her father Md. Yunush(PW8) and her brother Parvej Ahmad(PW9) in their oral evidence stated about the so-called quarrels going on between the accused-appellants and Hamida Parween(deceased). All these witnesses have made omnibus allegations that the accused-appellants used to quarrel with Hamida Parween(deceased) in relation to the property in question i.e. Holding No.13.
Prosecution failed to prove immediate strife on the fateful day
12. Immediate cause of the incident as per the prosecution was a quarrel which allegedly took place between the accused-appellants and Hamida Parween(deceased) on the morning of 11th March, 1997 just before her children i.e. Md. Sahid Khan(PW3) and Md. Javed Khan left for school. However, upon a close scrutiny of the depositions of Md. Sahid Khan(PW3) and the immediate neighbours, namely, Chand Mohammad(PW1), Matiur Rahman(PW2), Md. Sagir Ahmad Ansari(PW5), Fazal Khan(PW6) and Ragho Sharma(PW7), we do not find anything in their evidence which can even remotely suggest that there had been any quarrel between the accusedappellants and Hamida Parween(deceased) on the day of the incident. Hence, there is a total lack of evidence to convince the Court that there was any immediate strife on the fateful day which could have fuelled the accused-appellants with such rage that they were impelled to murder Hamida Parween.
Theory of motive was not established
13. The Investigating Officer, Jitender Kumar(PW12) stated in his evidence that Md. Yunush(PW8) [the father of Hamida Parween(deceased)] had informed him that his son-in-law i.e. Abdul Hamid Khan [the husband of Hamida Parween] had already given half a share of the house to Ahmad Khan/appellant No. 2 and Abdul Rahman Khan/accused No. 3 during his lifetime. Thus, the theory of motive attributed to the accused-appellants i.e., that they wanted to usurp Holding No. 13 could not be established by unimpeachable evidence.
Complaint filed by the deceased under section 107 r/w 116(3) CrPC was not proved
14. The complaint under Section 107 read with Section 116(3) of the CrPC allegedly lodged by Hamida Parween(deceased) against the accused persons could have provided an important corroborative link in the chain of incriminating circumstances. However, on a threadbare scrutiny of the record, and after going through the statements of the material prosecution witnesses, we notice that the said complaint never saw the light of the day inasmuch as, neither it was placed on record with the charge-sheet nor did any of the prosecution witnesses bother to prove the same during the evidence. Hence, the most important document, in the form of a complaint filed by Hamida Parween(deceased), under Section 107 read with Section 116(3) of the CrPC on which the prosecution heavily relied upon in support of the theory of motive, was never proved as per law.
Analysing circumstantial evidence: Prosecution relied last seen theory
16. The second circumstance on which the prosecution relied upon was the theory of ‘last seen together’, thereby, trying to shift the burden of proof by virtue of Section 106 of the Evidence Act and placing the accused-appellants under the onus to explain the circumstances under which Hamida Parween(deceased) was found murdered in the house by manual strangulation.
Section 106 IEA comes into play only when prosecution succeeded in establishing the initial burden
17. It is a cardinal principle of criminal jurisprudence that Section 106 of the Evidence Act shall apply and the onus to explain would shift on to the accused only after the prosecution succeeds in establishing the basic facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer a proper explanation about the existence of the said other facts, the Court can draw an appropriate inference against the accused. In cases based on circumstantial evidence, the accused’s failure to provide a reasonable explanation as required under Section 106 of the Evidence Act can serve as an additional link in the chain of circumstantial evidence – but only if the prosecution has already established other essential ingredients sufficient to shift the onus on to the accused. However, if the prosecution fails to establish a complete chain of circumstances in the first place, then the accused’s failure to discharge the burden under Section 106 of the Evidence Act becomes irrelevant.
Judgments relied for circumstantial evidence
Shambu Nath Mehra v. State of Ajmer – AIR 1956 SC 404 [paras: 8,9 & 11].
Tulshiram Sahadu Suryawanshi and Anr. v. State of Maharashtra [(2012) 10 SCC 373]:
“23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference”.
Nagendra Sah v. State of Bihar – (2021) 10 SCC 725:
“22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.
23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.”
Anees v. The State Govt. of NCT – 2024 INSC 368
“40. Section 106 of the Evidence Act cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden on the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused.”
22. Applying the aforesaid principles to the case at hand, the prosecution would be required to establish that the accused appellants and Hamida Parween(deceased) were present inside the house i.e., Holding No. 13 on the fateful morning, and to be specific during the time immediately preceding the incident.
No witness remotely suggests that any of the accused were present on the house on that fateful day
23. The best witness to narrate about the presence of the accused appellants in the house with Hamida Parween(deceased) on the fateful morning would have been none other than the sons of Hamida Parween(deceased) i.e., Md. Sahid Khan(PW3), and Md. Javed Khan.
24. On a minute perusal of the deposition of Md. Sahid Khan(PW3), we find nothing in his testimony which could even remotely suggest that any or all of the three accused persons were present in the house or that they had quarrelled with his mother when he left for school along with his brother Md. Javed Khan.
Prosecution did not prove last seen theory
28. Hence, we have no hesitation in holding that the prosecution failed to prove presence or what to say exclusive presence of the accused-appellants in Holding No. 13 with Hamida Parween(deceased) contemporaneous to the time of the incident, thereby, demolishing the prosecution theory of last seen together.
Accused no.3 did not prefer appeal but released
33. It is noteworthy that Abdul Rahman Khan/accused No. 3 did not file any appeal before this Court challenging the judgment of the High Court. Since we have consistently found that the case of the accused-appellants herein is identical to that of Abdul Rahman Khan/accused No. 3, we are inclined to extend the benefit of this judgment to Abdul Rahman Khan/accused No.3 as well by exercising our power under Article 142 of the Constitution of India.
34. Resultantly, the impugned judgment dated 19th January, 2011 passed by the Division Bench of the High Court and judgments and orders dated 25th November, 2003, and 1st December, 2003 passed by the trial Court are hereby reversed and set aside.
35. The accused-appellants, namely, Nusrat Parween/appellant No. 1, Ahmad Khan/appellant No. 2 and Abdul Rahman Khan/accused No. 3 are acquitted of the charges.
36. Nusrat Parween/appellant No. 1 and Ahmad Khan/appellant No. 2 are on bail. They need not surrender. Their bail bonds are discharged.
Party
Nusrat Parween … Appellant(S) versus State of Jharkhand ….Respondent(S )- Criminal Appeal No(S). 458 of 2012 – 2024 INSC 955
