JUDGMENT
K.S. Rakhra and Vinod Prasad, JJ.
1. Appellant Bunda Shah has been convicted by Additional Sessions Judge, Bareilly in S.T. No. 318/98 and 319/98, for the offences Under Section 302 IPC. and Section 4/25 Arms Act and has been sentenced for imprisonment for life with fine of Rs. 10,000/- Under Section 302 IPC, and one year R.I. with fine Rs. 2000/- Under Section 4/25 of Arms Act vide his ipugned judgment and order dated 3.11.2000 which convictions and sentences has been challenged by him in this appeal.
2. This case relates to the murder of Nasreen, a young girl aged about 14 years, who was the daughter of first informant Munney P.W. 1 and Bhoori P.W. 2. P.W. 1 Munney was her step father. The incident occurred in village Gulab Nagar within the circle of P.S. Visharat Ganj, district Bareilly. It was alleged that in the night between 24/25.9.1997 at about A.M., the appellant, who is a young man aged about 20 years alongwith his juvenile companion Azad, both being resident of the same locality, entered in to the house of the first informant and kidnapped Nasreen in witnessing of her parents Munney and Bhoori. Her parents raised alarm which attracted some people of locality (mohalla) but they could not catch the culprits, who took away Nasreen with them. Night search of the girl by the parents with the help of locality people was in vain. Next day at about 11 A.M. dead body of Nasreen was discovered from Jungle of Jaidpur, 3 km. away from the house of the informant. FIR of the incident was lodged by step father Munney P.W. 1 on 25.9.1997 at 1.2.30 P.M. at P.S. Virasat Ganj, district Bareilly naming Bunda Shah (appellant) and Azad as accused for offences Under Section 364 and 302 IPC. Investigation into the crime resulted in charge-sheet against both the accused persons who were summoned and tried vide two S.T. Nos. mentioned above in para 1 of this judgment.
3. During the trial, Azad was found to be a juvenile and was referred to Juvenile Court and hence we have considered the appeal of Bunda Shah accused appellant only.
4. Autopsy on the dead body of Nasreen was conducted by P.W. 6 Dr. M.L. Sharma on 26.9.1997 at 3 P.M., who found following ante mortem injuries on the body of the deceased:
1. Incised wound 6 cm. x 0.5 cm. x bone deep cutting the (R) ear in middle under neath temporal bone cut.
2. Incised wound 12 cm. x 3 cm. x bone deep on the front of neck 4 cm. below (L) ear to the 1 cm. below (R) ear lobule under neath all structure and third carvicle vertebra (0.75 cm. deep) above the thyroid eminence.
3. Contusion 2 cm. x 2 cm. on the front of left thigh.
5. Brain and membrane were found lacerated epiglottis was found cut. Both the lungs were congested. Doctor prepared two slides of smear for the pathological examination. From the body of the deceased two metallic Karas of white metals and two hair clips were taken in possession. Her Shawl and one Kurta were also taken in possession.
6. In the opinion of the doctor death had occurred about 1-1/3 day before and the cause of her death was shock and hemorrhage due to ante mortem injuries. Dr. Vineeta Chaturvedi was also joined in medical examination of the victim who had examined the genitals of the victim and had prepared slids of her vaginal smear for pathological tests for judging the presence of spermatozoa. Examination of victim’s genitals did not disclose any external mark of injury and hymen was old torn. No sign of inflammation or blood stained was traceable at labia mejarova.
7. Appellant is alleged to have been apprehended by the police on 29.9.1997 with a knife, which was alleged to be the weapon of assault.
8. On the basis of the above materials the police submitted a charge sheet against the appellant in court.
9. In the trial six witnesses were examined to prove the guilt of the appellant out of whom step father Munney informant P.W. 1 Smt. Bhoori (mother) P.W. 2 were witnesses of fact. Rest of the four witnesses Kailash Chandra Tyagi P.W. 3, Constable Hakim Singh P.W. 4, S.I. Raj Pal Singh P.W. 5 and Dr. M.L. Sharma P.W. 6 were formal witnesses. Trial Judge found the prosecution evidence to be consistent, cogent and reliable and hence it convicted the appellant and sentenced him as above Hence this appeal questioning said convictions and sentences.
10. We have heard Smt. Raj Laxmi Sinha learned Amicus Curiae for the appellant in support of the appeal and Sri Sudhir Agrawal learned AGA. in opposition and have gone through the entire evidence on record.
11. The argument of the learned Amicus Curiae is that the evidences of P.W. 1 Munney and P.W. 2 Bhoori are wholly unreliable and the trial court committed a mistake in believing their testimony and relying on it. She also argued that the FIR was lodged belatedly and no independent witness came forward to support prosecution case, which relied upon the testimony of only two interested, partisan and related witnesses. She also argued that it is a case its of circumstantial evidence and chain of circumstances is not complete and therefore prosecution has miserably failed to prove the charge. She further argued that no body had seen the incident of murder and therefore, appeal deserves to be allowed and appellant be acquitted of the charge levelled against him.
12. After a careful examination of the evidences on record in the light of the arguments advanced by learned Amicus Curiae we find that evidences produced by the prosecution are wholly unreliable and incredible and the trial court erred in placing reliance on them and in convicting the appellant.
13. To start with the FIR, it is to be noted that the victim was sleeping with her parents infront of her house and the prosecution story is that the appellant alongwith his companion Azad went there and they tried to abduct Nasreen where upon she cried waking up P.W. 1 Munney and P.W. 2 Bhoori both who saw the kidnapping by the accused persons taking Naseeran towards the jungle of Jaidpura. It is also not believable that if the girl was resisting kidnapping and the parents also woke up, why they did not followel the culprits from behind. The FIR does not indicate that any of the accused had any weapon to deter the parents. There is nothing on record to show that any of the accused was having any criminal antecedent, which could have deterred the parents from advancing to save their daughter. Evidence further show that, several people of the locality had gathered when the parents raised alarm. P.W. 1 Munney disclosed their names as Jugga, Nanhu, Chhangey and Babun and P.W. 2 Bhoori named them as Nanhu Shah, Jugga Shah Chhangey Shah and Yakin Shah and it is alleged that in the presence of all these witnesses the accused persons took away the girl. This story is highly improbable and inspires no confidence and is wholly unnatural against the human conduct. Further no body amongst witnesses rushed for the police help when the Police Station was only at a distance of half a km. from the place of the incident. No FIR was lodged immediately. Thus the evidences of P.W. 1 Munney and P.W. 2 Bhoori are unworthy of credence and are not believable and no reliance can be placed on them. Prosecution has not examined any of the villagers, though several persons named above had collected in whose presence the accused had kid-napped Nasreen. It only relied upon the evidences of two interested, partisan and related witness whose evidence, as has been held earlier, are not reliable.
14. P.W. 2 Bhoori has stated that the accused were teasing the victim and some altercation had taken place a day prior to the incident but no FIR was lodged in that connection by the parents of the victim. Defence suggestion to this witness that Munney Shah was against the marriage of the deceased and so he himself killed the girl and falsely implicated the appellant cannot be ruled out. It seems that deceased and appellants wanted to marry, to which the informant was not agreeable and hence he had done away with her. This view also finds support from the defence suggestion that about 10-15 days prior to the incident P.W. 1 Munney made a vain attempt to kill Nasreen by pushing her in a Nala but she was rescued by neighbors. The unnaturality of conduct of the two witness, their complacency in allowing the victim to be carried away by the appellants and not following them from behind when they do not allege that any of the culprit was armed with any weapon at the time of the incident and that one of the two accused was a minor, all these facts leads us to conclude that neither P.W. 1 nor P.W. 2 are believable witnesses and their testimony cannot be believed to convict the appellant for murder.
15. Attour the case is of circumstantial evidence. The only circumstance on which the trial Judge relied upon to hold the appellant guilty is the evidence of last seen, which as discussed above, is not believable. In a circumstantial evidence case it is necessary that evidence should be wholly reliable and should be compatible only with the guilt of the accused. It must rule out all other possibilities of any other person committing the crime. The circumstance must lead only to one conclusion and that should be the proven guilt of the accused to the exclusion of any other person. Judging the evidences of this appeal on such an anvil, we find that the prosecution evidences in this case are wholly insufficient, improbable and unreliable for holding the appellant guilty of the charge implanted on him.
16. We are, therefore, of the opinion that the trial court has wrongly convicted the appellant for the offence Under Section 302 IPC, as the prosecution has miserably failed to bring home his guilt to the hilt.
17. So far as the offence Under Section 4/25 of Arms Act is concerned, the evidence in that regard is also not convincing. However, when we are holding the appellant innocent with regard to charge Under Section 302 IPC, we also hold him innocent with regard to offence Under Section 4/25 of the Arms Act as the said offence is not supported by any independent witness and the police personals were interested in bolstering up their case to solve the murder mystery.
18. Resultantly this appeal is allowed. Convictions of the appellant Under Section 302 IPC. and Section 4/25 of the Arms Act and sentences thereon recorded by impugned order are set aside and the appellant is acquitted of both the charges. The appellant is in jail. He shall be released from Jail forthwith unless he is wanted in any other crime.
19. Copy of this judgment be certified to the trial court.