WAKKAR Vs STATE OF U.P.
Bench: B. SUDERSHAN REDDY,SURINDER SINGH NIJJAR, , ,
Case number: Crl.A. No.-000200-000200 / 2006
Diary number: 29256 / 2005
Advocates: ABHA R. SHARMA Vs
KAMLENDRA MISHRA
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 200 OF 2006
WAKKAR & ANR. … APPLLANTS
VERSUS
THE STATE OF U.P. … RESPONDENT WITH
CRIMINAL APPEAL NO. 201 OF 2006
SHEIKH ZAKAULLAH … APPELLANT
VERSUS
AKHLAQ & ORS. … RESPONDENTS WITH
CRIMINAL APPEAL NO. 767 OF 2006
STATE OF U.P. … APPELLANT
VERSUS
AKHLAQ & ORS. … RESPONDENTS
JUDGMENT
B. SUDERSHAN REDDY, J.
1. These three appeals by special leave arise out of a
common judgment made in Criminal Appeal Nos. 445 of
2005, 701 of 2005 and Capital Sentence Reference No. 2
of 2005, dated 7th October, 2005 on the file of High Court
of Judicature at Allahabad. The appellants in Criminal
Appeal No. 200 of 2006 along with other accused by
name Akhlaq, Salman and Nanha Pahalwan were tried for
offences punishable under Sections 148, 302 read with
Sections 149 and 201, IPC and Section 25 (4) of the Arms
Act. The trial Court sentenced all the five accused persons
to death for the offences punishable under Section 302
read with Section 149, IPC. Various other sentences have
been awarded to the accused for the offences punishable
under Sections 148 and 201, IPC. They were also
sentenced to undergo rigorous imprisonment for six
months each for the offence punishable under Section
25(4) of the Arms Act. The aggrieved appellants in
Criminal Appeal No. 200 of 2006 along with co-accused
Nanha Pahalwan and Salman have preferred their appeals
in one set jointly being Criminal Appeal No. 445 of 2005
and the other accused Akhlaq preferred Criminal Appeal
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No. 701 of 2005 in the High Court. The High Court
confirmed the conviction of the appellants Akhlaq, Wakkar
and Imtiaz for the offences punishable under Sections
302/149, 201, IPC and Section 25(4) of the Arms Act and
commuted their sentence for the offences punishable
under Section 302/149, IPC from death penalty to that of
imprisonment for life. That, so far as the accused Nanha
Pahalwan and Salman were concerned, they were
convicted only for the offence punishable under Section
25(4) of the Arms Act and they were acquitted of the
offences punishable under Sections 302/149 and 201,
IPC. Hence, Criminal Appeal No. 200 of 2006 is preferred
by the appellants Wakkar and Imtiaz challenging their
conviction and sentence for the offences punishable under
Sections 302/149, 148 and 201, IPC and Section 25(4) of
the Arms Act and Criminal Appeal No. 767 of 2006 is
preferred by the State of U.P. pleading for award of death
sentence against the accused. Likewise, Criminal Appeal
No. 201 of 2006 is preferred by the complainant Sheikh
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Zakaullah (PW 1) challenging the decision of the High
Court acquitting some of the accused and as well as
reducing death penalty to that of imprisonment for life.
2. According to the prosecution, on 9th August, 2000, the
deceased Sujaullah @ Mintu left home at about 9 a.m. to
his workplace and returned back at about 8 p.m. At 8.30
p.m., the accused Akhlaq gave a telephone call to the
deceased whereupon, he told his wife Zebi (PW 3) that he
was going to Akhlaq’s shop as he must have called him to
receive payment of money and would be returning within
a short time, but the deceased did not return. At about 11
p.m., the complainant (PW 1), Sheikh Zakaullah, who is
none other than the brother of the deceased got anxious
and went out in search of his brother. At about 11.45
p.m., he came across Hamraj ‘Furniture-wala’ from whom
he inquired about his brother. He told PW 1 that he had
seen the deceased at about 10 p.m. at the accused
Akhlaq’s shop where he and the accused Imtiaz, Wakkar
and Akhlaq were also present. PW 1 continued his search
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for his brother but could not trace him and he came back
to his foundry and sat there for awhile. At about 12.15
am, he noticed the accused Wakkar, Akhlaq and Imtiaz
along with two others coming down the stairs of first floor
room of Akhlaq’s shop. On seeing them, PW 1 inquired
about his brother and the accused Akhlaq told him that
the deceased Mintu, in all probability, might have gone to
Chandigarh as told to him. Next morning, at about 9 a.m.
when accused Akhlaq came to his shop, PW 1 once again
inquired from him about his brother and the reply of
Akhlaq was the same but Akhlaq looked quite disturbed
which gave rise to some suspicion in the mind of PW 1
and as such he insisted Akhlaq to show his first floor
room, but the accused Akhlaq avoided to show the room
on the pretext that he was not having the keys of the
room. Thereafter, PW 1 Zakaullah with the help of a
ladder got into the roof of said first floor room of Akhlaq
and found some blood lying on the floor. He peeped into
the room and saw that several pieces of dead body of his
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brother Sujaullah @ Mintu were lying there. These pieces
were kept in bags. He was shocked at the scene and
started raising alarm. He got down and told the people
present there about what he has seen. It is at that point
of time, Sompal (PW 6) told him that in the night at about
11 p.m., while he was present at his furniture shop, he
heard some shrieks from the first floor room of Akhlaq.
Thereafter, the door of the first floor room of Akhlaq’s
shop was broken open by the agitated crowd collected
there and found the scene inside the room as horrifying
where the pieces of the body of the deceased Sujaullah @
Mintu were lying on the floor. Immediately, PW 1
prepared the written report (Ext. Ka-1) and lodged it at
the police station on 10th August, 2000 at 10 a.m.
3. On lodging of the first information report, the case under
Sections 147, 148, 302, 149 and 201, IPC was registered
and the Inspector, R.P. Sharma (PW 14) commenced the
investigation. During the process of investigation, the
Investigating Officer (PW 14) noticed that the body of the
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deceased Sujaullah @ Mintu cut into pieces was lying in
the shop of Akhlaq. He prepared the inquest report (Ext.
Ka-26). Site plan (Ext. Ka-25) was drawn and the pieces
of the dead body were sealed and sent for postmortem.
The next day i.e. 11th August, 2000, the I.O. arrested the
accused Akhlaq and interrogated him. Relying upon the
statement of Akhlaq, the scooter of the deceased was
recovered. The blood stained knife was also found inside
the box of the scooter. The other accused Nanha
Pahalwan, Salman and Wakkar were absconding.
However, Wakkar was arrested on 16th August, 2000 and
one blood stained dagger used by him in the crime was
recovered from a graveyard (Kabristan) in the presence of
the witness Jeeshan and Zakaullah (PW 1). The recovery
memo (Ext. Ka-4) was prepared by the I.O. and the
recovered dagger was got sealed. The accused Imtiaz was
arrested on 19th August, 2000 and knife used by him in
the crime was recovered at a place called Kabir Nursery in
the presence of the witnesses. Recovery memo (Ext. Ka-
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48) was prepared on the spot and site plan of the place of
recovery (Ext. Ka-49) was also prepared. Nanha Pahalwan
surrendered himself before the Court on 30th August,
2000 followed by Salman’s surrender on 2nd September,
2000. Blood stained knife used in the crime and blood
stained watch of the deceased were recovered from the
accused Salman.
4. Postmortem examination was conducted on 10th August,
2000 at about 9.30 p.m. by Dr. K.K. Mehta (PW 4) who
vide his report (Ext. Ka-4) found ten incised wounds
which included the complete amputation of the left arm
from elbow joint, right arm from the elbow joint, right leg
from the knee joint, left leg from the knee joint. The head
from the neck was cut through and through which neck
bone was cut at Sl. No. 2. The head and face of the
deceased had also several cut injuries. In the opinion of
Dr. Mehta, the deceased had died about 18 hours before
the autopsy. The death was on account of shock and
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hemorrhage as a result of aforementioned ante mortem
injuries.
5. On completion of the investigation, charge sheet (Ext. Ka-
62) was laid against the five accused under Sections 147,
148, 149, 302, 201 and 120B, IPC and additionally
charges under Section 25(4) of the Arms Act were also
framed.
6. The prosecution, in support of its case, has examined
Zakaullah, the complainant (PW 1), Safullah (PW 2), a
witness of recovery of the articles (scooter belonging to
the deceased and blood stained knife used in the crime)
on the disclosure made by the accused appellant Akhlaq.
The wife of the deceased Smt. Zebi (PW 3) and the Doctor
who conducted the postmortem, Dr. K.K. Mehta (PW 4)
were also examined. One Sompal (PW 6), the owner of
furniture shop in the neighbourhood of the shop of
accused Akhlaq was also examined. He is the witness who
heard the human shrieks from the first floor room of the
shop of Akhlaq.
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7. A short question that arises for our consideration is
whether the various circumstances available on record
forms a chain pointing only to the guilt of the accused?
Whether the evidence adduced by the prosecution proves
particular facts relevant for the purpose of the case and
further question arises whether the facts are capable of
giving rise only to any inference of the guilt of the
accused persons?
8. It is well settled and needs no restatement at our hands
that the principle for basing a conviction on the basis of
circumstantial evidence is that each and every
incriminating circumstance must be clearly established by
reliable and clinching evidence and the circumstances so
proved must form a chain of events from which the only
irresistible conclusion about the guilt of the accused can
be safely drawn and no other hypothesis against the guilt
is possible. It is also well settled as held by this Court in
more than one decision that the Courts have to be
watchful and avoid the danger of allowing the suspicion to
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take the place of legal proof for sometime, unconsciously
it may happen to be a short step between moral certainty
and legal proof. “That there is a long mental distance
between ‘may be true’ and ‘must be true’ and the same
divides conjectures from sure conclusions” [see Tanviben
Pankajkumar Divetia v. State of Gujarat1].
9. Admittedly there is no eyewitness to the occurrence. The
entire case of the prosecution rests only on certain pieces
of the circumstantial evidence to substantiate the charges
levelled against the appellants. The circumstances
formulated at page 19 of the judgment of the High Court
are:
(1) P.W. 3, the witness Smt. Zebi has deposed about the fact that her husband, the deceased in the night of incident when came back from his karkhana (iron foundry) at about 8.00 p.m., he, soon after received a telephonic call from the appellant accused Akhlaq at about 8.30 p.m. whereafter he intimated her about Akhlaq's call and immediately went to him by his scooter at 8.30 p.m.
(2) P.W. 1 Zakaullah when noticed that his brother Mintu did not return till late in the
1 (1997) 7 SCC 156
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night, he has deposed before the court that he went out in his search and reached Akhlaq's shop nearby his foundry. There he was told by 'Hamraj Furniturewala' that he had seen Mintu at the shop of accused Akhlaq. After he sat down at his foundry on the chair, he in the hours of mid night noticed the accused Akhlaq, Imtiaz and Wakkar along with two others coming down the stairs from first floor room of the accused. He also noticed that Akhlaq was extremely perplexed when he inquired from him about his brother. He was told by Akhlaq that Mintu, the deceased was telling him about his likely departure for Chandigarh.
(3) P.W. 1 remained in his foundry till morning and at 9.00 a.m. of 10.8.2000 when Akhlaq again visited the shop. P.W. 1 further inquired from him about his brother and at that juncture also the accused (Akhlaq) looked nervous giving rise to some suspicion in the mind of the complainant.
(4) P.W. 1 asked Akhlaq to show his first floor room which he avoided on the pretext of not possessing the key of locked room.
(5) On account of suspicion so arisen in the mind of P.W. 1, he, in hope of getting some clue in the room about his brother, ascended the roof of the said room through a ladder from the side of saw machine of Bhoora behind the building of accused Akhlaq. From the roof he got down through the stairs and found presence of blood there and when he peeped from the crevices of door in the room he was shocked at the sight of the pieces of his
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brother's dead body wrapped in the pvc bags and some cloth.
(6) P.W. 1 having been completely frightened at the scene of the room rushed down and raised alarm which attracted people from among whom P.W. 6 Sompal came to him and told of having heard the shrieks of man coming from the room of the incident.
(7) P.W. 6 Sompal states that in the night of 9.8.2000 at about 11.00 p.m. he heard the shrieks of a man coming from the first floor room of the accused Akhlaq's shop.
(8) The last circumstance relating to the incident, which has come in the evidence before the trial court, is the evidence of recoveries of instruments used in the crime by the accused persons and also the recoveries of the scooter, watch and trouser all blood stained belonging to the deceased from the possession of those accused, as detailed above.
10. It is equally well settled that in a case which is based on
circumstantial evidence, motive for committing the crime
on the part of the accused assumes importance. The
suggested motive is that the deceased Mintu joined a
lottery/money circulation scheme run by accused Akhlaq
and invested a sum of Rs.60,000/- in the said business.
13
On some pretext or the other, the accused Akhlaq was
postponing the payment due to the deceased. On 7th
August, 2000, the deceased insisted for the payment
whereupon the accused Akhlaq along with other accused
told him that they would make the payment at their
convenience and further threatened the deceased that
they would eliminate him if he keeps insisting for the
payment of money.
11. The only question that arises now for our consideration in
these appeals is as to whether the circumstances and the
chain of events conclusively establish the involvement of
all the accused in committing the crime of murder of the
deceased?
12. Shri Nagendra Rai, the learned senior counsel appearing
for the appellants in Criminal Appeal No. 200 of 2006,
submitted that it would be unsafe to convict the accused
based on the sole and interested testimony of PW 1,
who is none other than the brother of the deceased. He
also submitted that the circumstantial evidence is so weak
14
and it is impossible to arrive at any proper conclusion that
the appellants, in any way, were responsible for the
commission of murder of the deceased. There is 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.
13. Shri R.K. Dash, learned senior counsel appearing for the
State and Shri Dinesh Kumar Garg, learned counsel
appearing for the appellant in Criminal Appeal No. 201 of
2006 strenuously contended that all the accused including
those who were acquitted by the High Court were
responsible for the commission of murder of the
deceased. The circumstantial evidence and the chain of
events conclusively suggest the involvement of all the
accused in the brutal murder of the deceased. They have
pleaded for restoration of judgment of the trial Court and
for convicting and sentencing all the accused with death
penalty.
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14. We have considered the rival submissions and perused
the material available on record. Before we proceed
further to discuss and consider the submissions made by
learned counsel appearing on behalf of their respective
parties, it is just and necessary to notice that Akhlaq (A 1)
who is stated to be the main culprit, did not prefer any
appeal against his conviction and sentence of life
imprisonment granted by the High Court. The entire case
depends upon the evidence of PWs 1, 2, 3 and 6 as
examined by the prosecution. It is they who speak about
incriminating circumstances and the chain of events.
There is no dispute whatsoever that the prosecution has
clearly established that the murder of deceased Sujaullah
@ Mintu took place in the room located on the first floor
of a shop which was under the occupation of Akhlaq (A 1)
and others. The pieces of dead body of the deceased
Sujaullah @ Mintu were recovered from that room. This is
one of the strong circumstances suggesting the
involvement of Akhlaq in the crime. There is no
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explanation whatsoever much less any cogent one
forthcoming from the accused as to how the body of the
deceased cut into pieces was found in the shop premises
which is in the possession of Akhlaq and others. This is
the strong circumstance which the prosecution has
clinchingly established that the dead body was found in
the shop belonging to Akhlaq where some business
was being carried on by Akhlaq along with his kith and
kin.
15. Secondly, there is absolutely no reason to disbelieve the
evidence of Smt. Zebi (PW 3), wife of the deceased who
in clear and categorical terms stated that the deceased
received a telephone call at about 8.30 p.m. on the fateful
day from the accused Akhlaq to come over to the shop
and receive the payment of lottery money which was due
in respect of which persistent demands were there from
the deceased. It is in her evidence that the deceased
immediately after receiving the telephone call, left on his
scooter but did not return back to home. It is further in
17
her evidence that having waited till about 11 p.m. in the
night, she informed Zakaullah (PW 1) who is none other
than the elder brother of her deceased husband. Her
evidence receives complete corroboration from the
statement of PW 1 that he was informed by Smt. Zebi
(PW 3) that the deceased left home on receiving
telephone call from the accused Akhlaq but did not return
thereafter.
16. In this context, the evidence of PW 1 assumes significance
that in pursuance of the information received from his
sister-in-law (PW 3), he left the house in search of his
brother (the deceased) and ultimately leading to
discovery of the dead body of the deceased from the
place of occurrence i.e. the first floor of the shop
belonging to Akhlaq. The evidence of PW 3 read together
with that of PW1’s statement, unerringly establishes that
the deceased had gone to the shop belonging to the
accused Akhlaq on receiving a telephone call from Akhlaq
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in connection with the payment that was due to him from
Akhlaq and others.
17. There is nothing to disbelieve the evidence of Sheikh
Zakaullah (PW 1) that till midnight he could not trace the
deceased and out of desperation he returned to his work
place and by midnight he noticed the accused Akhlaq,
Imtiaz and Wakkar along with two other persons coming
down from the stairs of the first floor room of the shop of
Akhlaq where the dead body was later on found. It is in
his evidence that he enquired from Akhlaq about his
brother and Akhlaq gave an evasive answer. There is no
dispute whatsoever that the murder of the deceased took
place during that night only at the shop belonging to the
accused where all the three accused Akhlaq, Imtiaz and
Wakkar were seen coming from the scene of offence. It is
undoubtedly a very strong circumstance which unerringly
points towards the culpability and involvement of these
three accused. The High Court, in our considered opinion,
on reappreciation of the evidence available on record,
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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
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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.
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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 of conviction.
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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.
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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
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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 Akhlaq’s 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
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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
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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.
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25.For all the aforesaid reasons, we confirm the judgment of
the High Court and accordingly dismiss all the appeals.
……………………………………….J. (B. SUDERSHAN REDDY)
NEW DELHI, …………………………………………J. FEBRUARY 3, 2011. (SURINDER SINGH NIJJAR)
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