Case: Sardar Hussain &amp; Anr Vs. State Of Uttar Pradesh

Islam the deceased is the younger brother of Shabbir (PW. 1). They were not living together. The former used to live with his mother. Islam had his own share of lands measuring 16 Bighas. He was separately cultivating the same. The appellants were once his close associates. They were of bad character. So mother and brother advised Islam to part company with them. So Islam did and went on minding his own work. He was unmarried. The appellants had an evil eye on the property of Islam. They got executed a fraudulent sale deed (Ex. Ka. 12). The deed was dated 15 February 1971. One Ahsan who has been examined as PW 12 has impersonated Islam before theThe deed purports to transfer the agricultural land of Islam in favour of the wife of appellant No. (1). It is said that the appellants in order to eliminate the possibility of this fraud being detected, murderedShabbir suspecting foul play of the appellants lodged a report on 21 April 1971. Zakir Ali appellant No. (2) was first arrested. He pointed out a dead body on 18 July 1971. It was recovered from a place deeply buried in a water logged pond. However, it was said to be identified as that of Islam. The identification was based on a shirt (Ex. 1) and a tahmad (Ex.em, the Doctor was unable to give his opinion regarding the cause of death or itsThe evidence against appellants is purely circumstantial : i) motive for the crime, ii) the evidence as to last seen, iii) recovery of the body at the instance of appellant No. (2), and iv) identification of the clothes with which the dead body wasThe appellants were convicted and sentenced under Sections 302, 364 and 210 IPC by the trial Judge. On appeal, the High Court maintained the said conviction and sentence of appellant No. (1), but reduced the same of appellant No. (2) to one under Section 201

Reasoning:
9. Islam was said to have disappeared on 12 April 1971. PW 1 lodged the report on 21 April 1971. The dead body was recovered on 18 July, 1971. Thewas done on 20 July 1971. It was more than three months from the date of alleged disappearance of Islam. Dr. D. P. Manchanda (CW 1) who conducted thewas not able to give the cause of death. He has stated that it was a skeleton of a young adult male. According to him, it would be difficult to tell correctly as to when the death of the deceased had taken place. There was no flesh left in the body. Thewere missing. The Vertabrae was not found attached to the skull. With this condition of the skeleton the Doctor could not have given any betterGulab Singh (PW 7) is a Panch witness for the recovery of the dead body. He has deposed that when the body was removed, the tahmad and shirt were intact and they were taken out byMan Singh (PW 8) is another Panch witness. He has also stated that the shirt and tahmad were removed by thewashed, packed and sealed. The Panch witnesses could not identify the shirt and tahmad as belonging to theThat clothes are said to have been identified by Shabbir and his wife Smt. Bhoori (PW 13). The identification was conducted by Ramakant Dube (PW 9). He had mixed up the said clothes with five like clothes resembling with each other. He has stated that Shabbir and Smt. Bhoori correctly identified them and did not commit any mistake. But if one carefully peruses his evidence, the identification was nothing but farce. The dead body was not recovered in the presence of Shabbir. He was called to the Court of the Magistrate only for the identification of the clothes and the body. He has stated that the dead body by appearance looked like that of his brother. We have earlier seen that thehad removed the clothes, washed dried and packed them separately with the seal of the panchas. Shabbir could not have seen the dead body with the clothes. The shirt (Ex. 1) and tahmad (Ex. 2) were no doubt mixed up with other similar clothes for the purpose of identification as deposed by PW 9. But the witness identified Ex. 1 because there was paper chit pasted on it. He identified Ex. 2 because it had a knot. That is why we said earlier that the identification was a farce. We are surprised that the Courts below should rely upon this kind of evidence. The circumstantial evidence in the case thus falls short of the required standard on all material particulars. We are, therefore, unable to sustain the conviction of the appellants