AuthorVejayalakshmi Puli.


CASE NO: C.R.A. 1617 of 2011

BENCH: Justice A.M. Khanwilkar

DATE: October 24, 2018.

Introduction

The petitioner in the present case has approached the Apex forum to file an appeal against the judgement passed by the High Court of Allahabad upholding the conviction as stated by the Session Court holding the accused persons guilty of offence punishable under Section 302 and 201 IPC respectively but converted the sentence of death penalty to that of imprisonment for life coupled with fine.

Relevant Facts

Briefly, One Shababul had provided information to the Police against the accused persons that their stepmother Zahida and step brother Ishlam had gone missing since two months for which no missing report had been lodged by them. On enquiring with Accused no 1. Asar Mohammad, it was confessed that he along with the other two accused persons namely, Asraf and Akhtar had committed their murder thereafter disposing their bodies off into the septic tank situated at the backyard of their own house leading the police to the same. On conduction of post mortem, it was revealed that the death of both Zahida and Ishlam was due to Asphyxia ( fracture of hyoid bone) which had occurred a month back. The High court in its judgement noted that it was a case of circumstance evidence but keeping in view the facts and circumstances established held that it would not fall within the purview of the rarest of rare cases. Therefore, the court instead of awarding a death sentences commuted the sentence of that of imprisonment for life thereby partly allowing the appeal of the accused.

Contention

The contention from the appellant side is that the case consists of manifest errors and evidence as such produced falls short of quality evidence required for recording guilt such as Motive behind commission of crime, evidence with respect to identification of the two dead bodies. It is also argued that the reports prepared by the police during investigation were tailored to favour prosecution. Thus the hypothesis on which the prosecution case rests stands unsubstantiated and as such the guilt recorded cannot be sustained either on facts or law.

The counsel for the state stuck to the high court verdict on upholding the conviction as guilt had been established beyond reasonable doubt pointing towards the involvement of the accused in the said crime and the motive being not established due to the witnesses turning hostile thus submitting that the appeal be dismissed.

Relevant points of Law mentioned by the Apex Court

The Apex court before dealing with the rivals submission individually first held that since it being a case of circumstantial evidence, it must be proved that

  1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
  2. the circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.
  3. the circumstances, taken cumulatively, should form a chain so complete that there is no escapefrom the conclusion that within all human probability the crime was committed by the accused and none else.
  4. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of 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 inconsistent with his innocence.

The same has been upheld in the case of Padala Veera Reddy Vs. State of Andhra Pradesh and Ors. The court therefore took into consideration the proved circumstances being

  1. Information provided by the watchman, Shababul regarding missing persons.
  2. Admission by Asar that he along with other accused had murdered Zahida and Ishlam and dumped their dead bodies into the septic tank located at the backyard of the house.
  3. The accused, Asar leading the police to the location where the dead bodies had been recovered
  4. No missing report lodged by the accused for unstated reasons.
  5. The dead bodies bearing age 32 and 11 corresponding with that of the Zahida and Ishlam respectively and cause of death as per post mortem report being Asphyxia.
  6. The identification of dead bodies had not been disputed by the accused nor offered any explanation even though they were confronted with the incriminatory evidence.

The court also stated that the witnesses becoming hostile and the prosecution not able to establish the factum of motive cannot be the basis to doubt the correctness of the finding of guilt recorded by the two courts against the accused on the basis of other proved circumstances as held in Nika Ram Vs. State of Himachal Pradesh. The court took cognisance of Section 106 of the Evidence Act stating the burden to prove the crime rests on both the prosecution as well as the accused and they cannot get away by simply keeping quiet and offering no explanation. In circumstantial evidence, when an incriminating circumstance is put to the accused who does not offer any explanation or states a false explanation then the same holds him guilty thus making the chain of circumstances complete, this being upheld in State of UP v. Dr Ravindra Prakash Mittal. In another case, A.N. Venkatesh v. State of Karnataka, the court took note of Section 8 of the Evidence Act being the conduct of the accused person is relevant if such conduct is influenced by any fact in issue. The pointing out of the place where the murder and dead bodies had been dumped by the accused Asar would be admissible under this section. The court also bore in mind the question whether the same circumstances can hold the other two accused guilty stating that apart from a confession by the accused Asar that the other appellants were involved in crime, the prosecution had not submitted any independent evidence to showcase that Asraf and Akhtar had committed the murder. The court held that the confession can never be the basis to form an opinion and should be used to receive assurance to the conclusion of guilt which the judicial mind is about to receive, the same view being expressed in Kashmira Singh v. State of MP. Therefore the offence punishable under Section 302 cannot be attracted against the two accused. The fact that they could not be convicted under 302 IPC does not extricate them from offence under Section 201 IPC as there was no effort made by them to locate the deceased or lodge a complaint and no explanation as such was offered by them for non lodging of a missing report. The accused have not disputed with the identification of the deceased as well which implies that they had complete knowledge of the murder and the location where the bodies were hid and this fact not being disclosed was solely with an intention to screen the accused Asar from legal punishment.

Judgment

Therefore this honourable court under the verdict of J. Khanwilkar passed the judgement dismissing the appeal of accused Asar, holding him liable under Section 302 IPC and that of the other two accused persons namely Asraf and Akhtar be partially allowed to acquit them of charges under Section 302 IPC thus holding them guilty for conviction and sentence for offence punishable under Section 201 IPC respectively.

The above case lays down:

  • In cases of circumstantial evidence, the guilt of the accused beyond all reasonable doubt has to be proved by the prosecution.
  • A mere confession by a co accused against another co accused cannot be the basis to proceed against unless there is something produced to indicate their involvement in the commission of the crime.
  • In circumstantial evidence, when an incriminating circumstance is put to the accused who does not offer any explanation or states a false explanation then the same holds him guilty thus making the chain of circumstances complete.

About the Author: Vejayalakshmi is a 2017-22 Batch student at Gujarat National Law University, Gandhinagar. 


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