Supreme Court of India
Nusrat Parween vs The State Of Jharkhand on 10 December, 2024
Author: Dipankar Datta
Bench: Dipankar Datta
2024 INSC 955 NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 458 OF 2012
NUSRAT PARWEEN .…APPELLANT(S)
VERSUS
STATE OF JHARKHAND ....RESPONDENT(S)
WITH
CRIMINAL APPEAL NO(S). 2032 OF 2017
JUDGMENT
Mehta, J.
1. The present appeals by special leave are preferred on behalf of
appellant-Nusrat Parween1 and appellant-Ahmad Khan2, assailing
Signature Not Verified
Digitally signed by
geeta ahuja
Date: 2024.12.10
17:15:52 IST
Reason: 1
In Criminal Appeal No. 458 of 2012, the appellant is Nusrat Parween. Hereinafter referred to as ‘Nusrat
Parween/appellant No. 1.’
2
In Criminal Appeal No. 2032 of 2017, the appellant is Ahmad Khan. Hereinafter referred to as ‘Ahmad
Khan/appellant No. 2.’
1
the judgment dated 19th January, 2011 passed by the Division Bench
of the High Court of Jharkhand at Ranchi in Criminal Appeals3
upholding the separate judgments of conviction and orders of
sentence4 passed by the 1st Additional Sessions Judge, Jamshedpur5
in Session trial cases6, 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.
2. The facts giving rise to the present appeals are as under:
2.1 Hamida Parween was married to Abdul Hamid Khan, the
brother of Ahmad Khan/appellant No. 2 and Abdul Rahman
Khan/accused No. 3. Abdul Hamid Khan, the husband of Hamida
Parween, passed away two years prior to the incident. Late Abdul
Hamid Khan owned Holding No. 13 situated at Dhatkidih in ‘A’ Block
wherein the accused-appellants as well as Hamida Parween along
with her three children, namely, Md. Sahid Khan(PW3), Md. Javed
3
Criminal Appeal (DB) No. 101 of 2004, Criminal Appeal (DB) No. 1741 of 2003 and Criminal Appeal (DB) No.
1810 of 2003.
4
Conviction Order dated 25th November 2003 & Sentence Order dated 1st December 2003.
5
Hereinafter referred as ‘the trial Court.’
6
Sessions trial Case No. 228 of 1998 and Sessions trial Case No. 393 of 2000.
7
Hereinafter referred as ‘IPC.’
2
Khan and Kahkasan Anujam were jointly residing. Despite Late
Abdul Hamid Khan having partitioned a part of Holding No. 13 in
favour of the accused-appellants, they were still pressurizing Hamida
Parween to give up her remaining share in the property. On this
count, Hamida Parween had earlier lodged a complaint against the
accused-appellants under Section 107 read with Section 116(3) of the
Code of Criminal Procedure, 19738.
2.2 On 11th March, 1997, at around 8:00 am, Hamida Parween sent
her sons, Md. Sahid Khan(PW3) and Md. Javed Khan to school. Both
the boys returned home after school time and found their house
locked from outside. When their mother did not turn up by evening,
both the boys approached their maternal uncle, Md. Firoj(PW4)
whose shop was situated at Golmuri Road No. 304, Sakchi, and
narrated the sequence of events to him.
2.3 Md. Firoj(PW4), accompanied by his brother, Parvej
Ahmad(PW9) and their father, Md. Yunush(PW8), launched a search
for Hamida Parween at various places including the houses of their
relatives but they were unable to trace her. Md. Firoj(PW4) went to
8
Hereinafter referred as ‘CrPC.’
3
the Bistupur Police Station to report about the disappearance of his
sister Hamida Parween, but the police officials rather than registering
any complaint advised him to continue the search. When the efforts
to search Hamida Parween failed, Md. Firoj(PW4) again went to
Bistupur Police Station on the next day, i.e., on 12th March, 1997, at
around 10:15 am, and informed the Officer-in-Charge that his sister,
Hamida Parween, had been missing since 11th March, 1997. Based
on the said complaint, the police official recorded a missing person’s
report in the station diary. Sub-Inspector, Jitendra Kumar(PW12)
proceeded to the locality and made inquiries. The neighbours
divulged that a quarrel had taken place between Hamida Parween
and her relatives i.e., the accused-appellants around 8:00 am on the
day of the incident. Thereafter, the accused-appellants fled away in
a tempo, but none of the neighbours saw Hamida Parween coming
out of the house. After that the police officials broke open the lock of
the front door in the presence of panch witnesses and found the dead
body of Hamida Parween lying inside the room. These proceedings
were recorded in a memorandum9.
9
Exhibit 2 and 2/1.
4
2.4 Sub-Inspector, Jitendra Kumar(PW12) recorded the Fardbayan
(statement) of Md. Firoj(PW4), the first informant, who alleged that
after the death of Hamida Parween’s husband, the accused-
appellants, who lived in the same house along with her, were
pressurizing her to give up the property. This resulted in frequent
quarrels amongst them. The strifes escalated to such an extent that
Hamida Parween(deceased) was even threatened with dire
consequences, and resultantly, she was compelled to file a complaint
against the accused persons under Section 107 read with 116(3) of
the CrPC. Md. Firoj(PW4) alleged that his sister, Hamida Parween,
had been done to death by the accused namely Ahmad Khan10, Abdul
Rahman Khan11, Nusrat Parween12, Sayeda Bibi13, Rahemaa
Khatoon@Chanda14, Reshma Bibi15, Md. Shahnawaz@Pappu16 and
Amirullah Khan@Babar17, with the intention of usurping her house
and other properties. The accused-appellants tried to cover up the
incident by hiding the dead body of Hamida Parween inside the house
10
Brother-in-law of Hamida Parween (deceased).
11
Brother-in-law of Hamida Parween (deceased).
12
Sister-in-law of Hamida Parween (deceased).
13
Sister-in-law of Hamida Parween(deceased).
14
Sister-in-law of Hamida Parween (deceased).
15
Sister-in-law of Hamida Parween (deceased).
16
Nephew of Hamida Parween (deceased).
17
Nephew of Hamida Parween (deceased).
5
and locked it up from the outside so as to conceal the evidence of the
crime. Sub-Inspector, Jitendra Kumar(PW12) noted this Fardbayan
of Md. Firoj(PW4) on 12th March,1997, at around 11:30 am at the
house of Hamida Parween(deceased) and based on the same, an FIR18
came to be registered at Bistupur Police Station on the same day for
the offence punishable under Section 302 read with Section 34 of the
IPC.
2.5 Inquest was conducted on the dead body of Hamida Parween
which was then forwarded to the hospital for post mortem
examination. The autopsy was carried out by Dr. Lalan
Choudhary(PW10), who found several injuries on the dead body of
Hamida Parween. There were abrasions on the front of the neck,
waist, right elbow, left knee, and both hands. Additionally, there were
large bruises on the front and side of the neck, and the hyoid bone
was fractured. According to Dr. Lalan Choudhary(PW10), the cause
of death was asphyxia, resulting from pressure applied to the neck.
Based on these findings, the post-mortem report19 was issued. Upon
concluding investigation, the Investigating Officer(PW12) filed
18
Case No. 67/1997.
19
Exhibit 3.
6
separate charge-sheets against the accused persons for the offences
punishable under Sections 302 and 34 of the IPC. Since the offence
under Section 302 IPC was exclusively triable by a Court of Session,
the case was committed and transferred for trial to the Court of 1st
Additional Sessions Judge, Jamshedpur(‘trial Court’). Separate trials
were parallelly held against the accused persons. Ahmad
Khan/appellant No. 2 was put up for trial in Sessions Trial Case No.
228 of 1998 with the co-accused including Amirullah
Khan@Babar(since acquitted), Rahemaa Khatoon@Chanda(since
acquitted), Md. Shahnawaz@Pappu(acquitted) and Reshma
Bibi(acquitted). Nusrat Parween/appellant No. 1, Abdul Rahman
Khan/accused No. 3, and Sayeda Bibi(acquitted) were tried in
Sessions trial Case No. 393 of 2000.
2.6 The trial Court framed charges against all the charge-sheeted
accused persons for the above offences who abjured their guilt and
claimed trial. The prosecution examined 12 witnesses to prove its
case as per the following table:
7
PWs Name Relations/Positions
PW1 Chand Mohammad Neighbour
PW2 Matiur Rahman Neighbour Shopkeeper
PW3 Md. Sahid Khan Deceased’s Son
PW4 Md. Firoj Brother of the deceased
PW5 Md. Sagir Ahmad Ansari Tenant of the Shop owned by the deceased
PW6 Fazal Khan Neighbour Shopkeeper
PW7 Ragho Sharma Neighbour Shopkeeper
PW8 Md.Yunush Father of the deceased
PW9 Parvej Ahmad Brother of the deceased
PW10 Dr. Lalan Choudhary Assistant Professor (Post-Mortem Examiner)
PW11 Md. Sagir Ahmad Ansari Formal Witness
PW12 Jitender Kumar Sub-Inspector Police Station
2.7 The accused persons were questioned under Section 313 of the
CrPC and were confronted with the circumstances appearing against
them in the prosecution case, which they denied and claimed to be
innocent. The trial Court, vide its judgment20 in Session Trial Case
No. 228 of 1998, held that the prosecution had successfully
established its case beyond reasonable doubt and, therefore,
20
Dated 25th November 2003.
8
convicted Ahmad Khan/appellant No. 2 for the offence punishable
under Section 302 of the IPC and sentenced him to life imprisonment.
The trial Court acquitted Amirullah Khan@Babar, Rahemaa
Khatoon@Chanda, Md. Shahnawaz@Pappu, and Reshma Bibi, on the
ground of insufficient evidence against them. Based on the evidence
on record, the trial Court in Session Trial Case No. 393 of 2000 held
Nusrat Parween/appellant No. 1 and Abdul Rahman Khan/accused
No. 3 guilty for the offence punishable under Section 302 of the IPC
and sentenced them to life imprisonment. Sayeda Bibi was acquitted
due to insufficient evidence against her.
2.8 Aggrieved by their conviction and sentence, Nusrat
Parween/appellant No. 1, Ahmad Khan/appellant No. 2, and Abdul
Rahman Khan/accused No. 3 filed separate Criminal Appeals21
before the High Court, which upheld the judgment of the trial Court
convicting the accused-appellants and Abdul Rahman
Khan/accused No. 3, confirming the sentence of life imprisonment
awarded to them by the trial Court. The impugned judgment of the
High Court dated 19th January 2011 is subjected to challenge by
21
Supra Note No. 3.
9
Nusrat Parween/appellant No. 1 and Ahmad Khan/appellant No. 2
in these appeals by special leave. Abdul Rahman Khan/accused No.
3, has not filed any appeal in this matter.
Submissions on behalf of the appellants: –
3. Learned counsel for the accused-appellants submitted that the
entire prosecution case is based on circumstantial evidence and that
the prosecution miserably failed to prove even a single of the so-called
incriminating circumstances so as to bring home the guilt of the
accused-appellants. Learned counsel for the accused-appellants
advanced the following pertinent submissions to urge that the
conviction of the accused-appellants as recorded by the trial Court
and affirmed by the High Court is unsustainable on the face of
record: –
(i) The prosecution failed to prove the motive attributed to the
accused-appellants for commission of the crime. In this
regard, attention of the Court was drawn to the evidence of Md.
Sahid Khan(PW3) [the son of Hamida Parween(deceased)] to
urge that he could have been the best person to elaborate upon
the disputes allegedly going on between Hamida
10
Parween(deceased) and the accused-appellants over the
subject property22 but he did not state anything specific
regarding the same in his testimony. Even if there were some
on-going day to day squabbles between the accused and the
deceased, Md. Sahid Khan(PW3) did not specifically state that
any quarrel took between the accused-appellants and Hamida
Parween(deceased) on the fateful day which was allegedly the
immediate cause of the incident.
(ii) That to prove the theory of motive, the prosecution heavily
relied upon the alleged complaint lodged by Hamida
Parween(deceased) against the accused-appellants under
Section 107 read with Section 116 (3) of the CrPC. However,
the said complaint was never proved in evidence and hence,
there is no tangible incriminating material on record against
the accused-appellants so as to corroborate the theory of
motive.
(iii) That the circumstance of last seen together could not be
proved by the prosecution, as neither Md. Sahid Khan(PW3)
22
Holding No. 13
11
[the son of Hamida Parween(deceased)] nor any of the
immediate neighbours, i.e Chand Mohammad(PW1), Matiur
Rahman(PW2), Md. Sagir Ahmad Ansari(PW5), Fazal Khan(P6)
and Ragho Sharma(PW7) uttered a single word to suggest that
the accused-appellants and the co-accused Abdul Rahman
Khan/accused No. 3 were present in the house when Md.
Sahid Khan(PW3) and his brother Md. Javed Khan left for the
school or that the accused persons were seen fleeing away from
the house on the day of incident.
(iv) The trial Court as well as the High Court heavily relied
upon Section 106 of the Indian Evidence Act, 187223 so as to
hold that the accused-appellants were under the burden to
explain the circumstances under which Hamida
Parween(deceased) who was living in the same premises, was
found dead in her room. However, the fact remains that no
tangible evidence whatsoever was led by the prosecution to
lend credence to the theory that any or all of the three
convicted accused-appellants were actually present in the
23
Hereinafter the ‘Evidence Act’.
12
house on the fateful morning, i.e., 11th March, 1997. As this
basic and foundational fact was not proved by leading cogent
evidence, it has to be inferred that the prosecution miserably
failed to establish the circumstance of last seen together.
Hence, the accused-appellants could not have been placed
under the burden to explain the circumstances in which
Hamida Parween was done to death.
(v) That the very inception of the prosecution case is shrouded
under a grave cloud of doubt. In this regard, it was contended
that Md. Firoj(PW4), [the brother of Hamida
Parween(deceased)], being the first informant, categorically
stated that there was a strife going on between his sister and
the accused persons over Holding No. 13. The situation had
gone bad to such an extent that Hamida Parween(deceased)
was compelled to lodge a complaint against the accused-
appellants under Section 107 read with Section 116(3) of the
CrPC. The first informant, Md. Firoj(PW4), also alleged in the
FIR that the accused-appellants had quarreled with Hamida
Parween(deceased) on the morning of the incident and
13
thereafter, they were all seen moving out from Holding No.13
and fleeing away in a tempo. Hamida Parween(deceased) was
not seen alive after the accused-appellants absconded from the
place of incident. In this background, the first and natural
reaction of the family members on finding out about the
quarrel followed by absence of Hamida Parween and noticing
the house locked from outside would have been to break open
the lock and to take stock of the situation inside. The utter
failure of the maternal family members of Hamida
Parween(deceased) to take any step in this regard clearly
establishes that the entire case of the prosecution is based
purely on conjectures and surmises without an iota of truth in
it.
On these grounds, learned counsel appearing for the accused-
appellants implored the Court to accept the appeals, set aside the
impugned judgments and direct acquittal of the accused-appellants
from the charges levelled against them.
14
Submission on behalf of the Respondent/State: –
4. Per contra, learned standing counsel appearing for the State,
vehemently and fervently opposed the submissions advanced on
behalf of the accused-appellants and advanced the following
pertinent submissions imploring this Court to dismiss the appeals: –
(i) That the trial Court’s judgment convicting the accused-
appellants for the murder of Hamida Parween(deceased) is
based on sound reasoning and evidence. The case of
prosecution is based on a complete chain of highly
incriminating circumstances which irrefutably point towards
the guilt of the accused. The prosecution established a strong
motive rooted in an ongoing property dispute between the
accused-appellants and Hamida Parween(deceased), and the
said theory has been corroborated by the complaint filed by
Hamida Parween(deceased) against the accused under
Section 107 read with Section 116(3) of the CrPC.
(ii) That Nusrat Parween/appellant No. 1, Ahmad
Khan/appellant No. 2 and Abdul Rahman Khan/accused No.
15
3 used to reside in the same premises24 with Hamida
Parween(deceased). The accused-appellants and Hamida
Parween(deceased) were last seen quarrelling with each other
in the house on the morning of 11th March, 1997 whereafter,
the accused-appellants absconded after locking the house
from outside and leaving behind the dead body of Hamida
Parween inside the house.
(iii) That the absence of the accused-appellant from the house
when the sons of Hamida Parween(deceased) i.e., Md. Sahid
Khan(PW3) and Md. Javed Khan returned home from school
unerringly points towards their involvement in the crime.
Thus, it was a fit case for invocation of Section 106 of the
Evidence Act thereby, requiring the accused-appellants to
explain the circumstances in which Hamida Parween died.
The accused-appellants miserably failed to discharge this
onus cast upon them by law and thus their conviction for the
charge of murder is fully justified.
24
Holding No. 13
16
(iv) That the medical evidence affirmed the cause of death as
strangulation, aligning with the sequence of events proved by
cogent convincing evidence, which bolstered the case of
prosecution against the accused-appellants.
(v) That the trial Court and the High Court both minutely
analyzed and marshalled the circumstantial evidence to
concurrently hold that the prosecution established a
complete chain of incriminating circumstances linking the
accused-appellants to the crime.
On these grounds, the learned counsel for the State contended
that the present appeals against the judgments of the trial court and
the High Court should be dismissed, as both courts have applied the
law to the facts on record correctly and reached the only possible
conclusion pointing towards the guilt of the accused.
Discussion and Conclusion: –
5. We have heard learned counsel appearing on behalf of the
parties and have pursued the evidence available on record.
17
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 report25 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
25
Exhibit 3.
18
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 Maharashtra26, wherein it was
held:
“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
v. State of Maharashtra [(1973) 2 SCC 793] where the
observations were made: [SCC para 19, p. 807]
“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
(1984) 4 SCC 116.
19
‘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.
(emphasis supplied)
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
20
strife, wherein the accused-appellants were pressuringher 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 accused-
appellants 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.
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
21
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.27
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.
11. Ongoing squabbles between close relatives residing under one
roof are nothing out of usual and may give rise to an inference that
all was not well within the family. However, in our opinion, merely
because such quarrels were going on between the accused persons
and Hamida Parween(deceased), that by itself could not be a ground
27
2022 SCC Online SC 1454.
22
to impute motive to the accused-appellants for murder of Hamida
Parween(deceased).
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 accused-
appellants 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.
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
23
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.
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.
24
15. Thus, we have no hesitation in holding that the evidence led by
the prosecution to prove the theory of motive for commission of the
crime as attributed to the accused-appellants is far from convincing
and a vital link in the chain of incriminating circumstances is
snapped. In view of the above finding, unquestionably, the trial Court
as well as the High Court erred in holding that the prosecution has
been able to prove the motive for the murder against the accused-
appellants beyond all manner of doubt.
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.
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
25
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.
18. The law concerning the invocation of shifting of onus under
Section 106 of the Evidence Act has been explained by this Court in
the case of Shambu Nath Mehra v. State of Ajmer28, wherein it was
held as follows:
“8. Section 106 is an exception to section 101. Section 101
lays down the general rule about the burden of proof.
“Whoever desires any Court to give judgment as to any legal
right or liability dependent on the existence of facts which he
asserts, must prove that those facts exist”.
Illustration (a) says-
28
AIR 1956 SC 404.
26
“A desires a Court to give judgment that B shall be punished
for a crime which A says B has committed.
A must prove that B has committed the crime”.
9. This lays down the general rule that in a criminal case
the burden of proof is on the prosecution and section 106
is certainly not intended to relieve it of that duty. On the
contrary, it is designed to meet certain exceptional cases
in which it would be impossible, or at any rate
disproportionately difficult, for the prosecution to
establish facts which are “especially” within the knowledge
of the accused and which he could prove without difficulty
or inconvenience. The word “especially” stresses that. It
means facts that are pre-eminently or exceptionally within
his knowledge. If the section were to be interpreted
otherwise, it would lead to the very startling conclusion
that in a murder case the burden lies on the accused to
prove that he did not commit the murder because who
could know better than he whether he did or did not. It is
evident that that cannot be the intention and the Privy
Council has twice refused to construe this section, as
reproduced in certain other Acts outside India, to mean
that the burden lies on an accused person to show that he
did not commit the crime for which he is tried. These cases
are Attygalle v. Emperor and Seneviratne v. R.
11. We recognise that an illustration does not exhaust the full
content of the section which it illustrates but equally it can
neither curtail nor expand its ambit; and if knowledge of certain
facts is as much available to the prosecution, should it choose
to exercise due diligence, as to the accused, the facts cannot be
said to be “especially” within the knowledge of the accused.
This is a section which must be considered in a
commonsense way; and the balance of convenience and the
disproportion of the labour that would be involved in
finding out and proving certain facts balanced against the
triviality of the issue at stake and the ease with which the
accused could prove them, are all matters that must be
taken into consideration. The section cannot be used to
undermine the well established rule of law that, save in a
very exceptional class of case, the burden is on the
prosecution and never shifts.”
(emphasis supplied)
27
19. Further, in Tulshiram Sahadu Suryawanshi and Anr. v.
State of Maharashtra29, this Court observed as under:
“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.
(emphasis supplied)
20. A similar observation is found in Nagendra Sah v. State of
Bihar30, wherein the Court held that: –
“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 regarding29
(2012) 10 SCC 373.
30
(2021) 10 SCC 725.
28
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.”
21. Recently, this Court in the case of Anees v. The State Govt. of
NCT31, held in the following terms:
“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.”31
2024 INSC 368.
29
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.
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.
25. In addition thereto, none of the neighbours i.e., Chand
Mohammad(PW1), Matiur Rahman(PW2), Md. Sagir Ahmad
Ansari(PW5), Fazal Khan(P6) and Ragho Sharma(PW7) made any
such assertion in their testimonies that they had seen the accused
present with Hamida Parween(deceased) or that they were seen
fleeing away from Holding No. 13 on the fateful morning.
30
26. From the evidence of Md. Yunush(PW8) [the father of Hamida
Parween(deceased)], it also transpires that Hamida
Parween(deceased) had 3 children i.e. two sons, Md. Sahid
Khan(PW3) and Md. Javed Khan, and a daughter, namely, Kahkasan
Anujam. However, the prosecution has not explained as to where the
girl child was on the date of the incident. Nothing is available on
record to throw light regarding the age of the girl child, or to infer
that she was incapable of testifying or was not present with her
mother on the fateful day. Likewise, the prosecution has also failed
to provide any explanation whatsoever as to why the other son, Md.
Javed Khan was not examined in evidence. The prosecution failed to
show that Md. Javed Khan and Kahkasan Anujam were incapable of
giving evidence and hence, failure to examine them in evidence calls
for drawing of adverse inference thereby, further denting the
credibility of the prosecution case.
27. Md. Firoj(PW4), the first informant alleged in the FIR32 that
Abdul Rahman Khan/accused No.3 and Nusrat Parween/appellant
No.1 started fighting with his sister in the morning and, sometime
32
Exhibit 4.
31
later, her other sister-in-law namely Sayedi Bibi, also came to the
house located at Holding No. 13. As many as eight accused-persons33
were charge-sheeted in the case, however, the trial Court acquitted
all other charge-sheeted accused citing insufficient evidence while
convicting the appellants, namely, Nusrat Parween/appellant No. 1,
Ahmad Khan/appellant No. 2 and Abdul Rahman Khan/accused No.
3.
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.
29. There is no credible evidence on record of the case to establish
the exclusive presence of the accused-appellants with Hamida
Parween(deceased) in the house in question at any time before the
incident, justifying the shifting of the burden of proof on to the
accused-appellants by invocation of Section 106 of the Evidence Act.
33
Refer Para 2.4 of this judgment.
32
Thus, the theory of last seen together attributed by the prosecution
could not be proved beyond all manner of doubt.
30. There is another doubtful feature which cast a grave doubt on
the truthfulness of the prosecution case. The first informant, Md.
Firoj(PW4) alleged that he had gone to the police station on 11th
March, 1997 to inform about the disappearance of his sister, Hamida
Parween. However, the Investigating Officer, Jitender Kumar(PW12)
emphatically denied that Md. Firoj(PW4) or any other relative of
Hamida Parween(deceased) had visited the police station on 11th
March, 1997 for lodging a report regarding disappearance of Hamida
Parween(deceased). As per the Investigating Officer, Jitender
Kumar(PW12), Md. Firoj(PW4) [the brother of Hamida
Parween(deceased) had come to the police station only on the
morning of 12th March, 1997 for the first time and made a complaint
regarding the disappearance of his sister upon which an entry was
made in the station diary at Serial No. 517. However, the said station
diary entry was not brought on record which is yet another
circumstance which persuades us to draw an adverse inference
against the prosecution.
33
31. The maternal family relatives of Hamida Parween(deceased)
have come out with a categoric assertion that after the death of
Hamida Parween’s husband, the accused persons were continuously
quarreling with her for usurping the entire Holding No. 13. The first
informant, Md. Firoj(PW4) also alleged in the FIR that the accused
persons had quarreled with Hamida Parween(deceased) in the
morning of the incident and were seen fleeing away together in the
tempo. Had there been an iota of truth in these allegations, the
immediate and natural reaction of the maternal family members after
being informed about the missing of Hamida Parween(deceased) and
noticing the lock on the door of the house would have been to break
open the lock and take a stock of the situation inside. The utter
indifference of the family members in taking any such measures
makes the entire prosecution story doubtful.
32. As a consequence of the discussion made above, we are of the
view that the prosecution has failed to prove the chain of
incriminating circumstances against the accused-appellants by
convincing evidence and beyond the shadow of doubt, so as to affirm
their guilt. The trial Court as well as the High Court clearly erred
while appreciating the evidence and in holding that the prosecution
34
has proved the case against the accused-appellants beyond all
manner of doubt. Hence, the accused-appellants deserve to be
acquitted of the charges by giving them the benefit of doubt.
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.
35
37. We also direct that if Abdul Rahman Khan/accused No. 3 is in
custody, he shall be released forthwith, if not wanted in any other
case.
38. The appeals are allowed accordingly.
39. Pending application(s), if any, shall stand disposed of.
………………………J.
(DIPANKAR DATTA)
..…………………….J.
(SANDEEP MEHTA)
NEW DELHI;
DECEMBER 10, 2024
36