Case: Wakkar  Vs. State Of U.P

Akhlaq, Wakkar and Imtiaz. It is on record that blood stained knives and daggers allegedly used in the crime and the blood stained scooter, trouser and watch belonging to the deceased were recovered and these articles have contained human blood stains on them. These articles are said to have been recovered on the disclosure made by the appellants to the police. There was some criticism that there were no independent witnesses to the recovery except PW 1 and the Investigating Officer, R.P. Sharma, PW 14. But, we are not inclined to reject the evidence of PW 1 merely because he happened to be the brother of the deceased. It is true that recovery of certain incriminating articles at the instance of the accused under Section 27 of the Evidence Act by itself cannot form the basis of conviction. The recovery of incriminating articles and its evidentiary value has to be considered in the light of other relevant circumstances as well and the chain of events suggesting the involvement of the accused. The trial Court and as well as the appellate Court did not rest the conviction of the appellants solely based on the recoveries. The fact remains that the recovery of articles used in the commission of offence has been taken into consideration together with other incriminating circumstances brought on record by the prosecution. 20. Now the only question that remains for our consideration is whether the case on hand is one of over implication? 21. Learned senior counsel for the appellants strenuously contended that there is no evidence available on record to show the involvement of these appellants in the crime. The submission was that no motive has been suggested as against these appellants as to why they should commit the murder of the deceased. We shall consider the same. 22. It is in the evidence of PW 1 that the accused Nanha Pahalwan, Salman and Imtiaz are real brothers. Wakkar is none other than the son of their step brother Irshad. The evidence available on record shows that the deceased Sujaullah invested a sum of Rs.60,000/- in the lottery/money circulation scheme which was being run by these persons along with Akhlaq. The deceased was repeatedly demanding for return of his amount from all the accused. In the circumstances it becomes difficult to accept the submission of learned senior counsel that the appellants Wakkar and Imtiaz were in no way involved in the conduct of business of lottery/money circulation scheme along with the accused Akhlaq at the shop belonging to Akhlaq. For the aforesaid reasons, we hold that the trial Court and as well as the High Court have rightly concluded that the immediate impelling motive on the part of the appellants which led them to commit the crime in question is traceable to their involvement in the business and persistent demands from the deceased for return of his money. We are not inclined to accept the submission made by the learned senior counsel that there is no evidence suggesting that the appellants were also involved in the said finance business along with Akhlaq. Like Akhlaq, the appellants also had the impelling motive which led them to commit the crime in question. It is not a case of any over implication. In this context, the evidence of PW1 becomes relevant that he noticed the accused Akhlaq, Imtiaz and Wakkar along with two other persons coming down from the stairs of the first floor room of Akhlaqs shop where the dead body of the deceased was later on found. The findings recorded by the trial Court and confirmed in appeal by the High Court finding the appellants to be guilty of the charged offences along with Akhlaq are unassailable. Both these appellants have been rightly convicted for the offences so charged.23. What remains for our consideration is whether the High Court committed any error in acquitting the accused persons Salman and Nanha Pahalwan. They were convicted only for the offence of illegal possession of the illicit arms punishable under Section 25(4) of the Arms Act. The High Court rightly refused to convict them based only on the recovery of incriminating material objects. The High Court has noted that their names did not find place in the FIR (Ext. Ka-1) initially given at the police station by PW 1 which consists of the names of three accused persons Akhlaq, Wakkar and Imtiaz and two more persons whom PW 1 was not able to identify. The names of Nanha Pahalawan and Salman have figured on subsequent information received by PW 1. The circumstance pressed into service that the deceased was last seen in the company of the accused including Nanha Pahalwan and Salman has been rightly disbelieved by the High Court. The statement of Irfan `panwala which is the root suggesting that the deceased was last seen with the accused including Nanha Pahalwan and Salman is of no consequence since he has not been examined as a witness by the prosecution. Thus, there is no evidence whatsoever to connect Nanha Pahalwan and Salman with the commission of the crime. The High Court, in our considered opinion, rightly acquitted both the said accused.24. Whether the case falls in the category of `rarest of rare for awarding death sentence? There is no direct evidence as to the manner in which the gruesome murder had taken place. It is not possible to discern and arrive at any definite conclusion as to the role played by each of the accused in the commission of the dastardly crime. No doubt they committed the crime in cold blood but did it quite stealthly. The entire case rests on the circumstantial evidence. The High Court having taken all relevant factors into consideration rightly came to the conclusion that the case is not the one which falls in the category of `rarest of rare. We are in agreement with the conclusion arrived at by the High Court and its decision to award life imprisonment alone and not the death sentence.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The High Court, in our considered opinion, on reappreciation of the evidence available on record, believed the evidence of PWs 1 and 3 in this regard and rightly taken circumstances into consideration leading to an irresistible conclusion that these three accused namely Wakkar, Akhlaq and Imtiaz were involved in the commission of the crime. It is also crucial to note that upon suspicion, PW 1 insisted Akhlaq to show the first floor room of his shop but there was no response whatsoever as the accused just avoided stating that he was not in possession of the key of the locked room and at that point of time, the accused Akhlaq was very nervous. It is at that time, PW 1 became suspicious about the whole thing and in the process, PW 1 with the help of a ladder, climbed to the roof of the said first floor room of the shop from behind and on reaching the roof got down through the stairs of the first floor and noticed scattered blood on the floor and found pieces of dead body of his brother. The trial Court and as well as the High Court have properly appreciated the evidence of PW 1 in this regard and there is nothing on record to disagree with the view taken by the Courts below.18. PW 6 is one Sompal who heard the human shrieks coming out from the first floor room of the shop belonging to the accused Akhlaq. This witness has a furniture shop in the neighbourhood of the shop of Akhlaq. It is in his evidence that he told Zakaullah (PW 1) that in the previous night he had heard human shrieks coming out of the first floor room of the shop. This witness was not subjected to any cross examination except by the counsel representing the accused Akhlaq. We cannot disbelieve the presence of this witness in his own shop at about 9 p.m. on the fateful night. It is in his evidence that on that fateful night of the incident, there was some `pooja in the vicinity and therefore, he stayed back to have some prasad after pooja. His presence at that time in the neighbourhood of the place of incident cannot be doubted. No particular reason suggested to him in the cross examination as to why he should give a false statement.19. The last one of the foremost circumstances which is brought on record through the evidence of the witnesses examined on behalf of the prosecution relates to the recoveries of incriminating articles made from the accused Akhlaq, Wakkar and Imtiaz. It is on record that blood stained knives and daggers allegedly used in the crime and the blood stained scooter, trouser and watch belonging to the deceased were recovered and these articles have contained human blood stains on them. These articles are said to have been recovered on the disclosure made by the appellants to the police. There was some criticism that there were no independent witnesses to the recovery except PW 1 and the Investigating Officer, R.P. Sharma, PW 14. But, we are not inclined to reject the evidence of PW 1 merely because he happened to be the brother of the deceased. It is true that recovery of certain incriminating articles at the instance of the accused under Section 27 of the Evidence Act by itself cannot form the basis ofrecovery of incriminating articles and its evidentiary value has to be considered in the light of other relevant circumstances as well and the chain of events suggesting the involvement of the accused. The trial Court and as well as the appellate Court did not rest the conviction of the appellants solely based on the recoveries. The fact remains that the recovery of articles used in the commission of offence has been taken into consideration together with other incriminating circumstances brought on record by the prosecution.It is in the evidence of PW 1 that the accused Nanha Pahalwan, Salman and Imtiaz are real brothers. Wakkar is none other than the son of their step brother Irshad. The evidence available on record shows that the deceased Sujaullah invested a sum of Rs.60,000/in the lottery/money circulation scheme which was being run by these persons along with Akhlaq. The deceased was repeatedly demanding for return of his amount from all the accused. In the circumstances it becomes difficult to accept the submission of learned senior counsel that the appellants Wakkar and Imtiaz were in no way involved in the conduct of business of lottery/money circulation scheme along with the accused Akhlaq at the shop belonging to Akhlaq. For the aforesaid reasons, we hold that the trial Court and as well as the High Court have rightly concluded that the immediate impelling motive on the part of the appellants which led them to commit the crime in question is traceable to their involvement in the business and persistent demands from the deceased for return of his money. We are not inclined to accept the submission made by the learned senior counsel that there is no evidence suggesting that the appellants were also involved in the said finance business along with Akhlaq. Like Akhlaq, the appellants also had the impelling motive which led them to commit the crime in question. It is not a case of any over implication. In this context, the evidence of PW1 becomes relevant that he noticed the accused Akhlaq, Imtiaz and Wakkar along with two other persons coming down from the stairs of the first floor room of Akhlaqs shop where the dead body of the deceased was later on found. The findings recorded by the trial Court and confirmed in appeal by the High Court finding the appellants to be guilty of the charged offences along with Akhlaq are unassailable. Both these appellants have been rightly convicted for the offences so charged.23. What remains for our consideration is whether the High Court committed any error in acquitting the accused persons Salman and Nanha Pahalwan. They were convicted only for the offence of illegal possession of the illicit arms punishable under Section 25(4) of the Arms Act. The High Court rightly refused to convict them based only on the recovery of incriminating material objects. The High Court has noted that their names did not find place in the FIR (Ext.initially given at the police station by PW 1 which consists of the names of three accused persons Akhlaq, Wakkar and Imtiaz and two more persons whom PW 1 was not able to identify. The names of Nanha Pahalawan and Salman have figured on subsequent information received by PW 1. The circumstance pressed into service that the deceased was last seen in the company of the accused including Nanha Pahalwan and Salman has been rightly disbelieved by the High Court. The statement of Irfan `panwala which is the root suggesting that the deceased was last seen with the accused including Nanha Pahalwan and Salman is of no consequence since he has not been examined as a witness by the prosecution. Thus, there is no evidence whatsoever to connect Nanha Pahalwan and Salman with the commission of the crime. The High Court, in our considered opinion, rightly acquitted both the saidis no direct evidence as to the manner in which the gruesome murder had taken place. It is not possible to discern and arrive at any definite conclusion as to the role played by each of the accused in the commission of the dastardly crime. No doubt they committed the crime in cold blood but did it quite stealthly. The entire case rests on the circumstantial evidence. The High Court having taken all relevant factors into consideration rightly came to the conclusion that the case is not the one which falls in the category of `rarest of rare. We are in agreement with the conclusion arrived at by the High Court and its decision to award life imprisonment alone and not the deathis not even an iota of evidence suggesting that the deceased and the appellants were last seen together and there was no motive attributed to the appellants herein for indulging in the ghastly crime of committing murder of the deceased.