Reserved

Case :- CRIMINAL APPEAL No. - 4209 of 2013

Appellant :- Mustqeem

Respondent :- State of U.P.

Counsel for Appellant :- Rajesh Pathik,Mukesh Joshi

Counsel for Respondent :- Govt. Advocate

And

Case :- CRIMINAL APPEAL No. - 4003 of 2013

Appellant :- Smt. Khurseeda

Respondent :- State of U.P.

Counsel for Appellant :- Rajesh Pathik,Manish Joshi,Mukesh

Joshi,S.K.A.Rizvi,S.M. Iqbal Hasan

Counsel for Respondent :- Govt. Advocate

Hon'ble Ashwani Kumar Mishra,J.

Hon’ble Rajnish Kumar, J.

(Per Ashwani Kumar Mishra, J.)

1.Appellants in these two appeals are the parents of

deceased, who have been convicted for murdering their only

daughter Rehana, under Section 302 read with Section 34 IPC

vide judgment and order dated 12.8.2013, passed by the

Additional District and Sessions Judge, Court No.6, Moradabad,

in Sessions Trial No.439 of 2011 (State Vs. Mustqeem &

Khursheeda) arising out of Case Crime No.538 of 2010, Police

Station Asmauli, District Moradabad and sentenced to

imprisonment for life alongwith fine of Rs.15,000/- each and to

undergo three months’ additional imprisonment on failure to

deposit the fine.

2.Sharafat (PW-1) the Village Chowkidar of Village Mawai

Thakuran informed the Station House Officer of Police Station

Asmauli on 24.11.2010, by means of a written report (Exhibit

Ka-1), that Rehana, aged about 15 years (hereinafter referred

to as ‘deceased’), daughter of Mustqeem son of Hameed Teli

(hereinafter referred to as ‘appellant no.1’) has died due to

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unknown reasons in the night of 23/24 November, 2010 and

her dead body is lying in her house. Aforementioned report

further states that he (PW-1) heard in the village that deceased

had gone to her relatives place in Village Shahpur Sirpuda from

where she returned alongwith a resident of the village namely

Bhoora (PW-5), son of Mewaram Prajapati (PW-2), and was at

her home and that matter is suspicious. Accordingly, necessary

action be taken. The written information was entered in GD of

concerned police station and is recorded as GD entry No.5 at

5.30 a.m. The scribe of the written report is Pooran Singh, the

Village Pradhan (DW-2). On the basis of aforementioned

information the inquest of the deceased was conducted.

3.Sub-Inspector Laxmi Shankar on receiving the aforesaid

information reached the spot and found relatives of deceased

alongwith other villagers to be present at the house of

appellants. He thereafter proceeded to get the inquest

(panchayatnama) of the deceased conducted. At the time of

inquest certain injuries were found on the body of the

deceased. However, no opinion could be given by panch

witnesses regarding the nature of death i.e. whether the same

is homicidal or suicidal. The concerned Sub-Inspector thereafter

prepared the inquest report (Exhibit Ka-6) at 6.30 a.m. on

24.11.2010 at Village Mawai Thakuran itself. Having completed

the aforesaid formality Sub-Inspector prepared the detailed

report and dispatched the dead body for postmortem.

4.The postmortem report is Exhibit Ka-2. According to the

autopsy surgeon the cause of death of deceased is asphyxia

due to throttling. Age of deceased as per medical opinion was

found to be 15 years. The autopsy surgeon found following four

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ante-mortem injuries on the body of the deceased:-

“(1) Multiple abraded contusion (3cm x 2cm Rt. side and

4 cm x 3cm Lt. side) just below the angle of mandible on

both side of neck.

(2) Multiple abraded contusion (3cm x 2cm) in the front

of neck 6 cm above the sternal notch.

(3) Abraded contusion 1cm x ½cm on the dorsum of Lt.

wrist joint.

(4) Abraded contusion 4cm x 1cm on the mid of front of

Rt. leg.”

5.Investigation was concluded and ultimately chargesheet

No.37 of 2011 was submitted. Appellants (parents of the

deceased) were arrested on the charge of murdering their

daughter. After submission of chargesheet cognizance was

taken by the court concerned. The case was committed to the

court of sessions as offence was triable by the court of

sessions. The then Additional Sessions Judge, Court No.6,

Moradabad charged the appellants with murder of their

daughter, as a result of honour killing, under Section 302/34

IPC, vide order dated 5.5.2011. The appellants denied the

charge and demanded trial.

6.Prosecution in order to bring home the charge so framed

adduced documentary evidence i.e. written report (Exhibit Ka-

1), postmortem report (Exhibit Ka-2), panchayatnama (Exhibit

Ka-6), chargesheet (Exhibit Ka-5). The prosecution has also

adduced Sharafat (PW-1), Mewaram (PW-2), Dr. Ramvir Singh

(PW-3), Harendra Singh (PW-4) and Bhoora as PW-5. Sub-

Inspector Dayachand Sharma appeared as PW-6, while

previous Investigating Officer Ravi Kumar was produced as PW-

7. The accused appellants were then examined under Section

313 Cr.P.C. Raeesuddin and Pooran Singh have also been

adduced as defence witnesses on behalf of accused, whereafter

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the trial was concluded. The Sessions Court has found the

accused appellants guilty of committing offence under Section

302/34 IPC vide judgment dated 12.9.2013, whereafter the

present appeals have been filed.

7.Records reveal that prosecution case is not based on any

eye witnesses account but the charge of murder against the

appellants is attempted to be proved on the basis of

circumstantial evidence.

8.Before adverting to the evidence adduced by the

prosecution to establish the guilt of appellants beyond

reasonable doubt, we would like to be reminded of the words of

wisdom expressed by the Supreme Court in Sharad

Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116,

which has consistently been followed since then. The Court

reiterated its earlier decision in Hanumant Vs. Madhya Pradesh,

AIR 1952 SC 343, which held that for proving a case based

purely on circumstantial evidence the circumstances should be

of a conclusive nature and tendency and they should be such as

to exclude every hypothesis but the one proposed to be proved.

It must be such as to show that within all human probability

the act must have been done by the accused. In paragraphs

152 to 154, the Supreme Court in Sharad Birdhichand Sarda

(supra) observed as under:-

“152. Before discussing the cases relied upon by the High

Court we would like to cite a few decisions on the nature,

character and essential proof required in a criminal case

which rests on circumstantial evidence alone. The most

fundamental and basic decision of this Court is Hanumant

v. The State of Madhya Pradesh .(1) This case has been

uniformly followed and applied by this Court in a large

number of later decisions uptodate, for instance, the cases

of Tufail (Alias) Simmi v. State of Uttar Pradesh(2) and

Ramgopal v. Stat of Maharashtra(3). It may be useful to

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extract what Mahajan, J. has laid down in Hanumant's case

(supra):

"It is well to remember that in cases where the evidence is

of a circumstantial nature, the circumstances from which

the conclusion of guilt is to be drawn should in the first

instance be fully established and all the facts so

established should be consistent only with the hypothesis

of the guilt of the accused. Again, the circumstances

should be of a conclusive nature and tendency and they

should be such as to exclude every hypothesis but the one

proposed to be proved. In other words, there must be a

chain of evidence so far complete as not to leave any

reasonable ground far a conclusion consistent with the

innocence of the accused and it must be such as to show

that within all human probability the act must have been

done by the accused."

153. A close analysis of this decision would show that the

following conditions must be fulfilled before a case against

an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is

to be drawn should be fully established.

It may be noted here that this Court indicated that the

circumstances concerned 'must or should' and not 'may be'

established. There is not only a grammatical but a legal

distinction between 'may be proved' and 'must be or

should be proved' as was held by this Court in Shivaji

Sahabrao Bobade & Anr. v. State of Maharashtra where the

following observations were made:

"Certainly, it is a primary principle that the accused must

be and not merely may be guilty before a court can convict

and the mental distance between 'may be' and 'must be' is

long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with

the hypothesis of the guilt of the accused, that is to say.

they should not be explainable on any other hypothesis

except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and

tendency.

(4) they should exclude every possible hypothesis except

the one to be proved, and

(5) there must be a chain of evidence so complete as not

to leave any reasonable ground for the conclusion

consistent with the innocence of the accused and must

show that in all human probability the act must have been

done by the accused.

154. These five golden principles, if we may say so,

constitute the panchsheel of the proof of a case based on

circumstantial evidence.”

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9.It is in the light of above principles that this Court has to

examine the question as to whether the prosecution has

discharged its burden of proving the guilt of accused appellants

of committing offence under Section 302/34 IPC beyond

reasonable doubt.

10.Apart from the documentary evidence, referred to above,

the prosecution has adduced seven witnesses i.e. PW-1

Sharafat Ali (Chowkidar), who first saw the dead body; PW-2

Mewaram, the father of Bhoora with whom the deceased is said

to have returned in the evening/night to her village; PW-3 Dr.

Ramvir Singh, who had conducted the postmortem of the

deceased; PW-4 Constable Harendra Singh, who was working

as Clerk in Police Station Asmauli and has verified GD Entries

containing the information with regard to suspicious death of

Rehana; PW-5 Bhoora, who is said to have taken the deceased

to the village and was later reportedly beaten by the father of

the deceased Mustqeem alongwith his associates; PW-6

Dayachand Sharma, who had partly conducted the investigation

after transfer of the previous Investigating Officer. PW-7 Ravi

Kumar, who was the Station House Officer on the date when

the intimation of the incident was received at the police station

concerned. PW-1 Sharafat Ali; PW-2 Mewaram and PW-5

Bhoora, who are the witnesses of fact have turned hostile.

11.PW-1 Sharafat has admitted that on 24.11.2010 a Tehrir

(written report) was written on his instructions by Pooran

Singh, the Village Pradhan. He, however, has denied any

knowledge of the person with whom the deceased returned to

her village. He claims to have gone to the house of deceased at

about 3.00-4.00 a.m. and has proved the written report, which

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contains his thumb impression. He has however denied having

informed the Investigating Officer about return of deceased

alongwith Bhoora or staying of deceased and Bhoora in the

village school or the factum of appellants having brought the

deceased to her house. He has also denied having informed the

Investigating Officer about the appellants having murdered the

deceased. This witness was subsequently declared hostile.

12.PW-2 Mewaram has also denied any knowledge about the

death of deceased or the appellants having killed her. He has,

however, admitted that appellant no.1 Mustqeem had come to

his house. This witness was also declared hostile. PW-2 has

been cross-examined by the Government Counsel and has

deposed that he had heard in the village that the appellants

had murdered their daughter. He has denied having seen the

appellants committing the murder. He has specifically stated

that his son Bhoora was taken by appellant no.1 and his

relatives to Village Shahpur Sirpuda and that the appellant no.1

alongwith his relatives came to his house in the night and took

Bhoora, who was also beaten. The act of taking Bhoora from his

house is alleged to be between 12.00-1.00 a.m. in the night by

appellant no.1 and four others, whereafter this fact was

informed to the police, whereafter the police reached the house

of appellant no.1 and her dead body was found. He has denied

any affair of deceased with his son but has stated that his son

was taken by the appellant no.1 alongwith others.

13.PW-3 Dr. Ramvir Singh is the autopsy surgeon, who has

proved the postmortem report. PW-4 Constable Harendra Singh

was clerk in the police station and has entered the written

report in the General Diary. PW-5 Bhoora has also not

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supported the prosecution story and was declared hostile. He

has, however, denied the suggestion that on account of his

affair with deceased she was done to death by appellants. In

his cross-examination he has complained of him being beaten

by appellant no.1 and four others. He has also testified that he

was taken on a bike but was saved by the villagers and

relatives of the appellants. The statement about his having

been beaten is not substantiated by producing any injury report

etc. nor any complaint in that regard is shown to have been

lodged. PW-6 Sub-Inspector Dayachand Sharma was the

Investigating Officer of the case.

14.PW-7 Ravi Kumar is the Station House Officer, who states

that information about the incident was received from PW-1 at

about 5.30 a.m. on 24.11.2010 and he had instructed the Sub-

Inspector to prepare the inquest etc.

15.The appellants have been examined under Section 313

Cr.P.C. and have stated that they have been falsely implicated.

16.The accused appellants have produced Raeesuddin as

DW-1, who has alleged that the appellants stayed at his house

on 23.11.2010 night and at about 5.00 in the morning on

24.11.2010 the information about murder of deceased was

received, whereafter the appellants left his house. According to

him the Baraat had returned on 23.11.2010 in the evening and

that the deceased or her mother had not gone with the

marriage party. He has denied the version that the deceased

was seen going with PW-5 Bhoora. DW-2 is the scribe, who has

proved the written report.

17.The trial court on the basis of aforesaid averments has

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come to the conclusion that the appellants have strangulated

their daughter and her death is due to honour killing.

18.The prosecution case apparently is that the deceased had

left village Shahpur Sirpuda alongwith Bhoora without any

knowledge of the parents. Having returned from Barat

(marriage procession of the relative), the appellants rushed to

their Village Mawai Thakuran and while Bhoora was beaten for

having brought appellants’ daughter, the deceased was done to

death as the appellants suspected of her having affair with

Bhoora. Since Bhoora and Rehana belong to different religion,

as such, the appellants took it as an act which would bring

disrepute to the family and accordingly Rehana was done to

death. The parents (appellants) suspected affair between

deceased and Bhoora and that was the cause for the honour

killing of their daughter.

19.There are only three witnesses of fact i.e. PW-1, PW-2

and PW-5 all of whom have turned hostile. None of the

witnesses of fact have disclosed anywhere that the deceased

was having an affair with Bhoora. Although in statement under

Section 161 Cr.P.C., PW-1 had asserted that the deceased

returned to her Village alongwith Bhoora, but in his statement

before the Court he has categorically stated that he has no

knowledge as to with whom she returned to her village. He has

denied the suggestion that any disclosure was made by him in

his statement under Section 161 Cr.P.C. regarding return of

deceased with Bhoora.

20.PW-2 also has denied having any knowledge about the

murder of deceased. He has merely stated that Mustqeem had

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come to his house and he had heard in the village that the

appellants for the fear of bad name had killed the deceased. He

has also asserted the fact that Bhoora was taken in the night

and was beaten by Mustqeem and his relative. PW-2, however,

has specifically denied any affair between deceased and his son

Bhoora.

21.Bhoora (PW-5) has denied that he was called by deceased

or that both of them came on a tempo to Asmauli or that the

deceased had refused to go with her parents and stayed at the

school of Rakesh in the village. He has also denied the

appellants having made inquiries about the deceased from him

and he was declared hostile. He has further denied the

suggestion that the deceased was killed on account of love

affair between him and the deceased.

22.None of the witnesses of fact have supported the premise

of affair between deceased and Bhoora. Specific suggestions

made in that regard to PW-2 and PW-5 have been denied. No

other independent witness has been adduced by the

prosecution to support the plea of love affair between deceased

and Bhoora. Only statement supporting the prosecution version

is the statement of PW-2 that he had heard in the village that

the appellants had killed their daughter. This part of the

statement is a hearsay statement and neither it has been

disclosed as to from whom it was heard nor the persons alleged

of having said so are produced as evidence.

23.The prosecution version that the deceased returned

alongwith Bhoora has also not been proved by the prosecution.

PW-1 has denied his disclosure allegedly made to the

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investigating officer of Bhoora having brought the deceased to

the Village. He has clearly denied that he saw Bhoora and

Rehana returning to village from Shahpur Sirpuda or the

information that Rehana stayed in School of Rakesh in the

village and that the appellants brought the deceased to their

home from the School.

24.In light of the above, it is apparent that neither the plea

of affair between deceased and Bhoora is proved by any

evidence, nor the story that she was brought by Bhoora to the

village is supported with any evidence.

25.Sri Rahul Saxena for the appellants submits that it is a

case of no evidence and the judgment of conviction under

challenge is without any basis or evidence and is entirely based

on conjectures and surmises.

26.In a case of circumstantial evidence the circumstance,

from which the conclusion of guilt is to be drawn, must be fully

established. The primary circumstance relied upon by the

prosecution of there being a love affair between deceased and

Bhoora; Bhoora having brought deceased to the village and the

deceased staying in school of Rakesh in the village is not

proved, at all. This is the prime motive attributed to the

appellants for honour killing of their daughter. In the absence of

any cogent evidence brought on record to support the plea of

affair or any improper act on part of the deceased which may

bring bad name to the family, we are not impressed by the

alleged motive of honour killing.

27.The only circumstance which has been established by the

prosecution is the fact that appellant Mustqeem came in the

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night and took Bhoora and he was physically assaulted. This

version of PW-2 and PW-5, however, is not supported by any

medical evidence to suggest that Bhoora was physically

assaulted, nor any police report etc. has been produced which

may go to show that any complaint was made with regard to

Bhoora having been forcibly taken by appellant and inflicting

him injuries. This statement in itself is not strong enough to

infer that the deceased had a love affair with Bhoora and her

murder was a case of honour killing.

28.There is another aspect important enough to warrant

deliberation at this stage. It remains undisputed that the dead

body of the deceased was found in the house of appellant

Mustqeem and, therefore, the onus was upon him to explain

the circumstance in which the dead body was found at early

hours in the day in his house.

29.Admittedly, Mustqeem is the owner of the house and by

virtue of Section 106 of the Evidence Act, the appellant

Mustqeem had the burden to prove the fact which is specially

within his knowledge. However, we find that in the examination

of the accused under Section 313 Cr.P.C., he has not been

confronted with the circumstance of dead body appearing in his

house or the fact that he was expected to prove the fact

specially within his knowledge. Failure of the prosecution to

confront the accused on this aspect under Section 313 Cr.P.C.

would have to necessarily exclude this aspect of the matter

from consideration. Paragraphs 143 to 145 of the judgment of

the Supreme Court in Sharad Birdhichand Sarda (supra) are

relevant in this regard and are reproduced hereinafter:-

“143. Apart from the aforesaid comments there is one vital defect

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in some of the circumstances mentioned above and relied upon by

the High Court, viz., circumstances Nos. 4,5,6,8,9,11,12,13,16, and

17. As these circumstances were not put to the appellant in his

statement under 313 of the Criminal Procedure Code they must be

completely excluded from consideration because the appellant did

not have any chance to explain them. This has been consistently

held by this Court as far back as 1953 where in the case of Fateh

Singh Bhagat Singh v. State of Madhya Pradesh this Court held that

any circumstance in respect of which an accused was not examined

under 342 of the Criminal procedure code cannot be used against

him ever since this decision. there is a catena of authorities of this

Court uniformly taking the view that unless the circumstance

appearing against an accused is put to him in his examination under

s.342 of the or s.313 of the Criminal Procedure Code, the same

cannot be used against him. In Shamu Balu Chaugule v. State of

Maharashtra(2) this Court held thus:

"The fact that the appellant was said to be absconding not having

been put to him under section 342, Criminal Procedure Code, could

not be used against him."

144. To the same effect is another decision of this Court in Harijan

Megha Jesha v. State of Gujarat (3) where the following

observation were made:

"In the first place, he stated that on the personal search of the

appellant, a chadi was found which was blood stained and

according to the report of the serologist, it contained human blood.

Unfortunately, however, as this circumstance was not put to the

accused in his statement under section 342, the prosecution cannot

be permitted to rely on this statement in order to convict the

appellant.':

145. It is not necessary for us to multiply authorities on this point

as this question now stands concluded by several decision of this

Court. In this view of the matter, the circumstances which were not

put to the appellant in his examination under s.313 of the Criminal

Procedure Code have to be completely excluded from

consideration.”

30.Learned AGA has stressed that the statement of appellant

supported by DW-1 that Mustqeem stayed with his relatives at

Shahpur Sirpuda on the night of 23.11.2010 and came only

next morning to his village is inconceivable and against natural

conduct of a father of not making any attempt to trace his

missing daughter. Though the argument in that regard appears

to be weighty, and would render the defence version weak but

merely for such reason the lacuna on part of prosecution in

failing to establish the charge, based on circumstantial

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evidence, cannot be made good.

31.Law is settled that any weakness in the defence case

would not obviate the prosecution from establishing the charge

based on circumstantial evidence. For a charge of murder to

be proved on the basis of circumstantial evidence, the evidence

must be conclusive. Failure of prosecution to adduce evidence

in that regard cannot be made good by the plea of falsity of

defence case in that regard.

32.The five golden principles enumerated in paragraph 153 of

the judgment in Sharad Birdhichand Sarda (supra), once are

applied on the facts of the present case, it would leave no room

of doubt for the Court that the prosecution has failed to

discharge its burden of proving the guilt of the accused

appellants beyond any reasonable doubt. The circumstances

from which the conclusion of guilt is to be drawn is not

established. The evidence available on record is not consistent

with the hypothesis of the guilt of the accused. The chain of

evidence to prove the guilt of accused is clearly broken and the

possibility of an alternative hypothesis, except the one, putforth

by the prosecution, cannot be ruled out.

33.The plea of learned AGA that it being a case of honour

killing the parents must be dealt with severally does not appeal

to us. It is settled aspect of criminal jurisprudence that a case

can be said to be proved only when there is explicit evidence

and no person can be punished for moral conviction.

34.In light of the above deliberations and upon minute

examination of the evidence brought on record, we find that

the prosecution has miserably failed to establish the charge

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framed against the appellants of murdering their only daughter.

Many aspects in the admitted facts of the case are left

unexplained that is how the deceased returned to her village;

whether she returned alone or somebody came with her, who

killed her; what has been the motive to kill her. The appellants

cannot be held guilty of the charge of murder unless the

prosecution by adducing cogent evidence discharges the

burden of proving their guilt beyond reasonable doubt.

35.The trial court on the basis of above evidence appears to

have drawn its finding of guilt against the appellants wholly on

assumptions. Even in the absence of any evidence of affair

between the deceased and PW-5 or the deceased having been

brought by PW-5 etc., it proceeded to hold that the charge of

murdering the deceased on account of honour killing has been

proved. We cannot approve of the conclusions drawn by trial

court after minutely examining the evidence on record. We find

that none of the ingredients of proving the charge by way of

circumstantial evidence existed and, therefore, the findings of

guilt returned by the trial court will have to be held as based

only on assumptions. Doubt or suspicion howsoever strong

against the accused cannot be a substitute for the charge to be

proved against the accused in a criminal trial.

36.In such circumstances, we are of the considered opinion

that the judgment and order dated 12.8.2013, passed by the

Additional District and Sessions Judge, Court No.6, Moradabad,

in Sessions Trial No.439 of 2011 (State Vs. Mustqeem &

Khursheeda) arising out of Case Crime No.538 of 2010, under

Section 302/34 IPC, Police Station Asmauli, District Moradabad

cannot be sustained and is liable to be set aside. The

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prosecution has failed to prove the charge of murder against

the appellants beyond reasonable doubt and, therefore, the

sentence and conviction of accused appellants is set aside. The

appellants are acquitted from the charges of offence under

section 302 read with 34 IPC and they shall be set at liberty

forthwith, if they are not wanted in any other case.

37.The appeals are, accordingly, allowed. No order is passed

as to costs.

Order Date :- 24.5.2022

Anil

(Rajnish Kumar, J.) (Ashwani Kumar Mishra, J.)