It has come on record that the accused appellants on being chased had run away towards the jungle leaving behind their ‘loi’ (blanket) and cycle. Both these items were recovered by the Investigating Officer and were marked as Exh. Ka-10 and Exh. Ka-11 respectively. None of these two items were produced before the Court and were got identified by the accused appellants. There is no evidence on record which may establish that in fact the said loi and the cycle belonged to the accused appellants. This gives strength to the defence of the accused appellants that they have been unnecessarily roped into the offence and that they were not even present at the site. The presence of the accused appellants could have been easily proved by the prosecution, had the above two items recovered from the spot were produced and established to be that of the accused appellants. There is no reason or explanation for not producing the above things in Court or for withholding the same.
The totality of the facts and circumstances especially the unnatural behaviour and conduct of the son and nephew of the deceased Altaf Hussain, ante-timing of the FIR and that the ‘loi’ (blanket) and the cycle (Exh. Ka-10 and Exh. Ka-11) alleged to be that of the accused appellants left behind at the site of the incident were not produced before the Court, compels us to doubt the presence of the son and nephew of the deceased Altaf Hussain at the site. Thus, in the absence of any credible eye witness to the incident and the fact that the presence of the accused appellants at the place of incident is also not well established, we are constrained to accord benefit of doubt to both the accused appellants.
Even if we ignore certain other minor discrepancies in the oral evidence, the delay in conducting the post-mortem, the difference in the name of the weapons of crime, i.e., “tabal” or “palkati” which are more or less similar types of instruments for cutting crops, etc., it is a case where the prosecution has miserably failed to prove that the accused appellants have committed the offence beyond any reasonable doubt.
In view of the above, the judgment and orders of the Courts below i.e. Addl. Sessions Judge, Roorkee dated 25.04.1998 and High Court of Uttarakhand dated 10.09.2010 are accordingly set aside and the accused appellant No.1 is acquitted by giving the benefit of doubt.
SUPREME COURT JUDGMENT
Citation: 2023 STPL(WEB) 8 SC
MOHD. MUSLIM Vs. STATE OF UTTAR PRADESH (NOW UTTARAKHAND)
Criminal Appeal No. 1089 of 2011-Decided on 15-6-2023
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