SUFI MOHD HUSAIN Vs. STATE OF U P

JUDGEMENT

(1.) PALOK Basu, J. This appeal has been filed by Sufi Mohd. Hussain against his conviction under Section 302/201, I. P. C. passed by the Sessions Judge, Saharanpur, on 30-7-1983 in Sessions Trial No. 395 of 1982.

(2.) THE charge against the appellant was that on 10-7-1982 the appellant committed the murder of Km. Santosb Kala about seven years aged and therefore, committed the offence punishable under Section 302, IPC and further that he concealed the body of the deceased in bushes with the intention of screening himself from legal punishment and, therefore, he was charged under Section 302/201, IPC. Aggrived by the conviction and sentence the appellant has filed the aforesaid appeal from Jail. 3, Sri H. K. Sharma, Advocate, has been appointed as amicus curiae by this Court who has argued the case on behalf of the appellant ably. Sri Jagdish Tewari, learned A. G. A. has appeared on behalf of the State. THE entire record has been examined. 4. In the instant case the prosecution stands to lose the case if it is held that the circumstances proved against the appellant do not go to indicate that either he had committed the murder or that he had concealed the dead body. THEre is neither any eye-witnesses nor any confession etc. to show the complicity of the appellant. THE trial Judge has held that the circumstances proved by the prosecution have the effect of proving the charges under Section 302/201, I. P. C. 5. In order to prove the case 7 witnesses have been examined. PW 1 Sher Bahadur is the father of the deceased and had lodged the FIR PW 2 Smt. Jogmal is the mother of Km. Santosh Kala. PW 3 Jit Singh claims to have been Km. Santosh Kala when the accused-appellant was taking her alone PW 4 B. S. Negi, the investigating officer is also the witness for showing the arrest of appellant on 15-7-1982. It is said that the appellant was sitting on the Railway Platform at Jwalapur Railway Station. It is further said that on his pointing out a knife (Ex. 1) Banyain (Ex. 2) and Langot (underwear) Ex. 3, having blood stains, were recovered from the bush near about the hut of the appellant. Necessary memoranda were prepared which had been sent to the Chemical Examiner and it has been found by him that they had blood stains. It may be remembered that for proving the recovery of the 'discovery' there is no evidence except that of the Investigating Officer and PW 1 Sher Bahadur. 6. PW 7 Dr. B. K. Chaudhary had conducted the post mortem examina tion on the dead body of the girl on 13-7-1982 (Ex Ka 14 ). According to the doctor, the dead body was in an advance stage of decomposition. Abdomen was sweolen. THEre was foul smell. Maggots and flies were present all over the body. THE eyes and nose were missing. Hair and Nail beds were loosened. THEre was also peeling of the skin around vulva and other parts of the body. He also found an antemortem incised wound 4. 5 x 5 cm X verbetrae deep on the from of neck lower part cutting muscle tissues, oesophagus and trachea. On internal examination the doctor had found the trachea and the oesophagus to have been cut. Km. Santosh Kala was reported to have died between 4 to 7 days earlier due to haemorrhage and shock as a result of the injury on the neck THE doctor noted that no opinion could be given whether rape has been committed or not as the body was highly decomposed but he did not find any mark of external injury around vagina. 7. PW 6 is the head constable who had made various entries in the general diary as a formal witness. THE charge sheet, however, has also been filed by B. S. Negi (PW 4 ). THE circumstances which have been relied upon by the prosecution as have been noted by the learned Trial Judge are as under:. (i) That the accused took Km. Santosh Kala with him in the evening of 10-7-1982 and she was last seen with him at about 5. 30 p. m. on that date. (ii) That the accused absconded from his hut after he was contacted by Sher Bahadur and Smt. Jogmala to ascertain the whereabout of Km. Santosh Kala and, therefore, he was arrested from Jwalapur Railway Station on 15-7-1982. (iii) That the knife (Ex. 1) Banyain (Ex. 2) and Langot (Ex. 3) were recovered on his pointing out on which blood stains have been found. 8. It was argued on behalf of the appellant that the alleged recovery of the dead body and the recovery of items ex. 1 X ex. 2 and ex. 3 were made on 15-7-32. Even though the prosecution states that the girl had disappeared on 10-7-1982 no first information report was lodged till 12-7-1982. It is rightly argued that if the fact of alleged last seen of the appellant with Km. Santosh Kala was a fact, then the police could have been informed at once or, at least, on the next day. Delay of more than 2 days in lodging the FIR under the circumstances remains wholly unexplained. In these circumstances it is very doubtful whether the 'last seen' evidence can be really believed. In any case, even if reliance is placed on the fact that the appellant was seen with the girl in the evening of 10-7-1982 nothing turns upon it because more than enough time had elapsed between 10-7-1982 at 5 p. m. when the appellant was allegedly Mast seen' with the girl and 12-7-1982-3. 35 p. m. when the first information report was allegedly lodged. One does not know that had happened in-between. It is admitted case of the prosecution that the appellant was available in his hut all these days because Sher Bahadur had said that he went to the appellant and enquired whereabouts of Km. Santosh Kala. THE answer given by the appellant was that the girl may be found towards the platform No 6 or 7. It may be remembered that the appellant was a village sooth-sayer. It is also admitted that every one of the village went to him for treatment etc. and never any untoward incident had happened. 9. Coming to the last circumstances that Banyain, Langot or knife was recovered, no evidence is forthcoming suggesting that Banyain or Langot belonged to the appellant. So many its and buts any have intervened between 12-7-1982 and 15-7-1982 when the appellant was said to have been arrested. May be, that someone else, taking advantage of the loneliness of the girl, may have committed some offence with her of which the appellant had knowledge through the culprit as the appellant was being respected by the entire village and used to do 'jantar Mantar'. For these reasons it is impossible to accept that this would be an incriminating circumstance so as to prove the guilt of the appellant relating to the charges noted above. THE position and the conclusion may have been different if the dead body would have been pointed out by the appellant. That is not the prosecution case. It is said that the dead body was recovered from a Bush about 2 furlongs from informant's house by a Forest Guard who had sent a message about the said recovery to the informant Sher Bahadur through one Daulat Ram. Neither the Forest Guard has been examined nor the said Daulat Ram. 10. Left to decide as to whether the alleged recovery of Ex. 1, 2 and 3 can be admissible under Section 27 of the Evidence Act, the decision shall have to be in the negative. Neither PW 1 Sher Bahadur nor PW 5 B. S. Negi talk of any confessional statement by the appellant. Admittedly the investi gation had commenced longago. Section 162 Criminal Procedure Code, would be attracted and, therefore, any statement which does not partake the character of a confessional statement envisaged by Section 27, Evidence Act, would not be a admissible in view of the bar of Section 162, Cr. P. C. but the fact of the appellant's going to a place and getting recovered some clothes etc. would be admissible under Section 8 of the Evidence Act as his 'conduct'. On the facts of the present case, the said conduct of the appellant does not become in any way an incriminating factor (See Prakash Chandra v. State, AIR 1979 SC 400 ). But that apart, the recovery itself is highly doubtful in the instant case because no witness of the public had been examined regarding the arrest of the appel lant and the so-called recovery of these exhibits. For this also we have to rely upon the Investigating Officer. It is well known principle that in such serious matters the Recovery Officer should not be the Investigating Officer. 11. In view of the aforesaid discussion, all the circumstances have not been proved beyond doubt and those proved do not show that the appellant was responsible for either committing the murder of unfortunate girl or was responsible for removing the evidence. Consequently the charges under Sec tion 302/201, IPC against him fail. 12. THE appeal is consequently allowed. THE conviction of Sufi Mohd. Husain under Sections 307/201, IPC is set aside. He is in jail. He shall be released forthwith unless wanted in connection with some other case. 13. THE court is thankful to Sri H. K. Sharma for his assistance. He may be paid Rs. 250/- as his fees. Appeal allowed. .