# Mohd. Shakeel v. State

- **Citation:** (2024) 3 ILRA 1516
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-22
- **Case number:** Capital Case No. 19 of 2022
- **Bench:** Siddhartha Varma, Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-shakeel-v-state-51536
- **Pages:** 24

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 374(2) - Appeal
against
conviction
,
Section
366
-
Sentence of death to be submitted by
Court of Session for confirmation , Capital
punishment - Murder - Arms possession -
Indian Penal Code, 1860 - Sections
302/34, Arms Act, 1959 - Section 25 & 27
- Circumstantial Evidence - Extra-Judicial
Confession - Recovery - Last-seen theory -
Motive
-
In
case
of
circumstantial
evidence the chain of circumstances has
to be proved in such a manner which leads
to the conclusion that the accused and
none else is responsible for the offence
alleged against him - Chain has to be
completed in all respect.
(Para - 46)

(B)
Indian
Evidence
Act,
1872
-
Circumstantial evidence - Panchsheel of
the
proof
of
a
case
based
on
circumstantial evidence - circumstances
from which the conclusion of guilt is to be
drawn should be fully established - facts
so established should be consistent only
with the hypothesis of the guilt of the
accused - circumstances should be of a
conclusive nature and tendency - should
exclude every possible hypothesis except
the one to be proved - must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
3 All. Mohd. Shakeel Vs. State
1517
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done
by the accused. (Para - 44)

Three ladies, the wife, sister and mother of
appellant - have been murdered by causing
injuries through the firearms as well as a sharpedged weapon - alleged accused were charged
under IPC and Arms Act after confessions and
recoveries linked them to the crime - trial court
sentenced
both
to
death
based
on
circumstantial evidence and recoveries made.

(Para - 5 ,6,7,43)

HELD: - Confessions and recoveries were
unreliable due to lack of independent witnesses.
No direct link between the accused and the
crime was substantiated. Chain of circumstantial
evidence was incomplete. Convictions set aside
due to insufficient evidence and unreliable
prosecution case under settled law regarding
circumstantial evidence and Section 27 of the
Evidence Act. Prosecution has failed to prove its
case against the appellants beyond reasonable
doubt, therefore, they are entitled for benefit of
doubt, and they deserve to be acquitted from all
the charges levelled against them. Capital
reference made by trial court for confirmation of
death sentence rejected. (Para 59, 47, 58)

Appeals allowed. (E-7)

LIST OF CASES CITED: -

## Text

_Characters 0–39,922 of 82,003. This is a partial read: ask again with offset=39922 for what follows._

1516 INDIAN LAW REPORTS ALLAHABAD SERIES
deprive the Magistrate of such powers,
particularly, in view of the provisions under
Section 156(3), and the language of Section
173(8) itself. The power of the Magistrate
to direct further investigation, is, in fact, to
be read into language of Section 173(8)
CrPC.

19. The question as to whether after a
charge-sheet has been filed by the police,
the Magistrate has power to order further
investigation, and if so, upto what stage of
a criminal proceeding, is therefore no
longer res integra, in view of the
authoritative pronouncements, wherein it
has been held that the power to order for
further investigation after a police report
has been forwarded under Section 173(2),
would continue to enure in the Magistrate
at all stages of the criminal proceedings
until a trial itself commences.

20. The legal position with regard to
the power of the Magistrate to order further
investigation
exercising
powers
under
Section 156(3) read with Section 173(8),
being well settled, the order impugned
dated
12.07.2023
passed
by
the
Metropolitan
Magistrate,
Court
No.9,
Kanpur Nagar in Misc. Case No.1124 of
2023, in terms of which the final report
submitted by police has been rejected, and
a direction has been issued for further
investigation, cannot be faulted on the
ground of lack of jurisdiction.

21. The petition lacks merit and is
accordingly dismissed.
----------
(2024) 3 ILRA 1516
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.03.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Capital Case No. 19 of 2022
connected with
Capital Cases No. 2 of 2023
 &
Capital Reference No. 14 of 2022

Mohd. Shakeel ...Appellant
Versus
State ...Respondent

Counsel for the Appellant:
Sri Apul Misra, Sri Sukhvir Singh

Counsel for the Respondent:
G.A., Ms. Mayuri Mehrotra, Ms. Archana Singh

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 374(2) - Appeal
against
conviction
,
Section
366
-
Sentence of death to be submitted by
Court of Session for confirmation , Capital
punishment - Murder - Arms possession -
Indian Penal Code, 1860 - Sections
302/34, Arms Act, 1959 - Section 25 & 27
- Circumstantial Evidence - Extra-Judicial
Confession - Recovery - Last-seen theory -
Motive
-
In
case
of
circumstantial
evidence the chain of circumstances has
to be proved in such a manner which leads
to the conclusion that the accused and
none else is responsible for the offence
alleged against him - Chain has to be
completed in all respect.
(Para - 46)

(B)
Indian
Evidence
Act,
1872
-
Circumstantial evidence - Panchsheel of
the
proof
of
a
case
based
on
circumstantial evidence - circumstances
from which the conclusion of guilt is to be
drawn should be fully established - facts
so established should be consistent only
with the hypothesis of the guilt of the
accused - circumstances should be of a
conclusive nature and tendency - should
exclude every possible hypothesis except
the one to be proved - must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
3 All. Mohd. Shakeel Vs. State
1517
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done
by the accused. (Para - 44)

Three ladies, the wife, sister and mother of
appellant - have been murdered by causing
injuries through the firearms as well as a sharpedged weapon - alleged accused were charged
under IPC and Arms Act after confessions and
recoveries linked them to the crime - trial court
sentenced
both
to
death
based
on
circumstantial evidence and recoveries made.

(Para - 5 ,6,7,43)

HELD: - Confessions and recoveries were
unreliable due to lack of independent witnesses.
No direct link between the accused and the
crime was substantiated. Chain of circumstantial
evidence was incomplete. Convictions set aside
due to insufficient evidence and unreliable
prosecution case under settled law regarding
circumstantial evidence and Section 27 of the
Evidence Act. Prosecution has failed to prove its
case against the appellants beyond reasonable
doubt, therefore, they are entitled for benefit of
doubt, and they deserve to be acquitted from all
the charges levelled against them. Capital
reference made by trial court for confirmation of
death sentence rejected. (Para 59, 47, 58)

Appeals allowed. (E-7)

LIST OF CASES CITED: -

1. Ramanand @ Nandlal Bharti Vs St. of U.P.,
AIR 2022 SC 5273

2. Subramanya Vs St. of Karn., AIR 2022 SC
5110

3. Rajesh & Anr. Vs St. of M.P., Criminal Appeal
No(s). 793-794 of 2022

4. Sharad Birdichand Sarda Vs St. of Maha., AIR
1984 SC 1622: (1984) 4 SCC 116

5. Chatthoo Chero Vs St. of U.P., Jail Appeal
No.116 of 2019

6. Mukesh v. St. (NCT of Delhi), (2017) 6 SCC 1

7. Rajesh & anr. Vs St. of M.P. 2023 SCConline
SC 1202

8. Munna Pandey Vs St. of Bihar, 2023 SCC
OnLine SC 1103

9. Delhi Administration Vs Bal Krishan, (1972) 4
SCC 659

10. Mohd. Inayatullah Vs St. of Maha., (1976) 1
SCC 828

11. Anter Singh Vs St. of Raj., (2004) 10 SCC
657

12. St. (NCT of Delhi) Vs Navjot Sandhu, (2005)
11SCC 600

(Delivered by Hon'ble Anish Kumar
Gupta, J)

1. Heard Shri Apul Misra and Shri
Sukhvir Singh, learned counsel for both the
appellants and Shri Amit Sinha, learned
A.G.A. assisted by Ms. Mayuri Mehrotra
and Ms. Archana Singh for the State.

2. Capital case No. 19 of 2022 has
been filed by Mohd. Shakeel-appellant
against the judgement and order dated
3.11.2022 passed by Special Judge (E.C.
Act)/Addl. District and Sessions Judge,
Farrukhabad
whereby
he
has
been
convicted in S.T. No. 612 of 2007 arising
out of Case Crime No. 1002 of 2007 P.S.
Kotwali Farrukhabad District Farrukhabad
under section 302/34 I.P.C. and sentenced
to death penalty with fine of Rs.50,000/-
and in default of payment of fine to go
further Rigorous imprisonment for two
years. He has also been convicted in S.T.
No. 611 of 2011 arising out of Case Crime
No. 1011 of 2007 P.S. Kotwali Farrukhabad
District Farrukhabad under section 25 of
the
Arms
Act
and
sentenced
to
imprisonment for three years Rigorous
Imprisonment with fine of Rs.10,000/- and
1518 INDIAN LAW REPORTS ALLAHABAD SERIES
under section 27 of Arms Act he is
sentenced to imprisonment for three years
Rigorous Imprisonment with fine of
Rs.10,000/-, with default stipulation.

3. Capital case No. 2 of 2023 has been
filed by Mohd. Kaleem-appellant against
the judgement and order dated 3.11.2022
passed by Special Judge (E.C. Act)/Addl.
District and Sessions Judge, Farrukhabad
whereby he has been convicted in S.T. No.
612 of 2007 arising out of Case Crime No.
1002 of 2007 P.S. Kotwali Farrukhabad
District Farrukhabad under section 302/34
I.P.C. and sentenced to death penalty with
fine of Rs.50,000/- and in default of
payment of fine to further go Rigorous
Imprisonment for two years. He has also
been convicted in S.T. No. 611 of 2011
arising out of Case Crime No. 1012 of 2007
P.S.
Kotwali
Farrukhabad
District
Farrukhabad under section 25 of Arms Act
and sentenced to imprisonment for three
years Rigorous Imprisonment with fine of
Rs.10,000/- with default stipulation.

Capital Reference No. -14 of 2022
has also been made by the trial court for
confirmation of the death sentence of both
the appellants.

4. Since both capital cases and capital
reference arising out of a common
judgement for the same incident, all were
heard together and are now being decided
by this common judgement.

5. The prosecution case in brief is that
upon an incident having had taken place in
the
night
intervening
25/26.07.2007,
wherein three ladies have been murdered, a
First Information Report was lodged by one
Mohd. Shakeel s/o Sabbir Ahmad. First
Information Report was scribed by Dr.
Dinesh Chandra Agnihotri on the dictation
of Shakeel (complainant). The allegation in
the First Information Report was that in the
house of his cousin (Chacha's son) Mohd.
Kaleem
in
the
night
intervening
25/26.07.2007 at around 4:00 A.M., certain
unknown persons had committed murder of
the wife of his brother-Kaleem, namely,
Yaasmeen, mother, namely Noorjahan and
sister, namely Nasreen and that on the body
of the three deceased there was evidence of
the fact that they were killed by bullets and
there were also other marks of injuries
caused by sharp edged weapons. It was
stated in the First Information Report that
the brother of the first informant, namely
Kaleem was also grievously injured and he
was sent to Lohiya Hospital for medical
treatment. Upon the First Information
Report having been lodged, investigation
commenced. From the spot a recovery
memo of the recovered articles was
prepared. On the spot the recovery was
made by the Investigating Officer (IO) of
two empty cartridges of 315 bore and one
empty cartridge of 12 Bore. The other
articles which were taken into possession
were plain soil and the blood stained soil.
Thereafter, on the same date, inquest report
was prepared and the three dead bodies of
Nasreem, Yaasmeem and Noorjahan were
sent for postmortem. As per the case of the
prosecution, Kaleem was taken to the
hospital by the Police and he was
subsequently arrested on the statements
made by Mohan and Kamal. As per
prosecution case Mohan and Kamal had
stated that Kaleem had made certain extra
judicial
confession
before
them
and
therefore they knew the fact that Kaleem
had committed the crime. The police also
came to know on the statements of Mohan
and Kamal that the co-accused Pradeep
Dhobi, Lallan @ Lalla and Shakeel were
also involved in the crime. On 27.07.2007,
Shakeel and Kaleem were arrested by the
3 All. Mohd. Shakeel Vs. State
1519
police. Thereafter on the pointing of the
two accused, Shakeel and Kaleem, from the
house of Shakeel one country made pistol
of 315 bore was recovered. On the pointing
out of accused Shakeel and Kaleem, a
Banka which was buried in the same
courtyard and covered by some loose
bricks was recovered. The recovery memo
was thereafter prepared, which is Exh. Ka4. It may be noted that when the First
Information Report was lodged, it had
given rise to Case Crime No. 290 of 2007
under Section 302, 307 I.P.C. For the
recovered country made pistol, Case Crime
No. 1012 of 2007 under Section 4/25 of the
Arms Act and for the recovered Banka,
Case Crime No. was 1011 of 2007 under
Section 25/27 of the Arms Act were
registered. The injury on the body of
Kaleem was examined on 26.07.2007 itself.
Postmortem of the dead bodies were
conducted on 26.07.2007. The case of the
prosecution further is that the fire arms and
the
bullets
were
sent
for
forensic
examination to the Ballistic Expert. The
samples of the bullets and the fire arms
were
got
received
in
the
Forensic
Laboratory on 03.11.2007 and the Banka
was received on 04.11.2007. After taking
the statements of the various witnesses the
Police concluded the investigation and
submitted charge-sheet against all the
accused persons, namely, Kaleem, Shakeel,
Pradeep, Lallan @ Lalla and Mukesh @
Sanjeev on 16.08.2007 under Sections 147,
148, 149, 302 I.P.C. With regard to
Shakeel, a charge-sheet was also submitted
on 17.08.2007 under Section 25/27 of the
Arms Act and with regard to Mohd.
Kaleem, charge-sheet under Section 4/25 of
the Arms Act was submitted on 17.08.2007.
On the aforesaid charge-sheets, cognizance
was taken by the Chief Judicial Magistrate,
Farrukhabad on 05.09.2007 and the case
was committed to the Court of Sessions
Judge where charges were framed on
25.01.2008 by the learned Additional
Sessions Judge, Court No.1, Farrukhabad,
under Sections 147, 148, 302/149 I.P.C.,
against Mohd. Kaleem, Shakeel, Pradeep,
Mukesh @ Sanjeev and Lalla @ Lallan and
the Sessions Trial was numbered as 612 of
2007.

6. With regard to the case under the
Arms Act under Section 25/27 vis-a-vis
Shakeel, case was registered as Sessions
Trial No. 611 of 2007. With regard to the
accused Kaleem a case under Section 4/25
of the Arms Act was registered as Sessions
Trial No. 612 of 2007.

7. The accused persons denied the
charges and claimed trial. However, during
trial since the accused, namely, Mukesh
alias
Sanjeev
and
Pradeep
were
absconding, therefore, their trial had been
separated on 19.11.2016 and 4.11.2019
respectively and only accused Kaleem,
Shakeel and Lallan alias Lalla have been
tried for the offences under sections 147,
148, and 302/149 I.P.C. Accused Kaleem
has also been tried under section 4/25 Arms
Act and accused Shakeel has also been
tried for the offence under section 25/27
Arms Act.

8. During trial in order to prove its
case the prosecution had examined as many
as 14 witnesses. There were two court's
witnesses, on the orders of the court, who
were examined during trial. The defence
had also examined six witnesses in support
of its case.

9. The P.W. 1 Shakeel s/o Sabbir,
who was the first informant has proved the
contents of the First Information Report
and has stated that Kaleem, is his cousin,
who is the accused in the case in respect of
1520 INDIAN LAW REPORTS ALLAHABAD SERIES
an incident, which occurred in the night
intervening 25/26.07.2007 at 4:00 A.M. in
which
his
wife
Yasmeen,
mother-
Noorjahan and sister- Nasreen, have been
murdered by firing bullets upon them. He
stated that the First Information Report was
written on his dictation by Sri Dinesh
Chandra Agnihotri. He had stated in his
statement that as the wife of his cousin,
Kaleem, was of a bad character, therefore,
Kaleem and the co-accused Shakeel had in
a planned manner, murdered Yasmeen, the
wife of Kaleem; the mother of Kaleem-
Noorjahan and his sister- Nasreen. He
further stated that after lodging of the First
Information Report he had gone to Jaipur
and what happened in the case thereafter
was not known to him. In his crossexamination, he has categorically stated
that he had not seen the incident and he had
not seen the assailants. He also stated that
he had no knowledge about the incident.
He has stated that when he reached the
house of his brother, Kaleem then he was
not there at his house but had been taken to
the Lohiya Hospital, and therefore, he had
straight away gone to the Police Station to
get the report lodged. He has further stated
that he did not know that Kaleem was
grievously injured in the incident and if this
fact was recorded in his statement given
under Section 161 Cr.P.C. by the police, he
is not aware. He had also no knowledge
about panchayatnama of the dead bodies.

10. The PW-2 Haji Mohd. Ahmad
has stated in his examination-in-chief that
Pradeep was not known to him. The person
who was in the Court, namely Shakeel s/o
Qadir was known to him. He had also
stated that Lallan @ Lalla and Mukesh @
Sanjeev were also not known to him.
Kaleem, who was present in the court, was
also not known to him. He has stated that
he had only heard about the fact that
Kaleem's wife had been killed around two
years back. He had stated that he heard
about the murder of Noorjahan, Yasmeen
and Nasreen. He has also denied that on
27.07.2007, Pradeep had informed him that
Kaleem had developed illicit relations with
his sister-in-law and his wife Yasmeen was
all the time troubling him because of this
illicit relations, therefore, he committed
murder
of
Yasmeen,
Noorjahan
and
Nasreen.
Ultimately,
the
PW-2
was
declared hostile.

11. P.W.-3 Mohd. Qamar, who was
examined by the prosecution to prove the
fact that an extra judicial confession was
made by Mohd. Shakeel and Mohd.
Kaleem. However, he has denied the fact
that any extra judicial confession was made
before him. This witness was also declared
hostile.

12. P.W.-4 Gaffar, was also produced
by the prosecution but he had stated that on
that date he was in Jaipur, and therefore, he
was also declared hostile.

13. P.W.-5 Arif, proved the inquest
reports.

14. P.W.-6 Prakash Narayan, is the
Constable, who has proved the registration
of the case under the Arms Act. He has
stated in his statement that before the
accused were taken for the recovery, no
statement was recorded and no public
witness was present at that time.

15. P.W.-7 Sub-Inspector, Balvant
Raj, was examined by the prosecution for
the purposes of proving the Chik F.I.R. He
has stated that the court of the Chief
Judicial Magistrate was 5-6 Kilometres
away from the Police Station but the Chik
F.I.R., was sent to the Court of the Chief
3 All. Mohd. Shakeel Vs. State
1521
Judicial Magistrate on 06.08.2007 i.e. after
11 days of the incident.

16. P.W.-8 Dr. Ramesh Chandra
examined the injuries on the body of the
accused Kaleem and in his opinion they
were simple in nature. He stated that the
injury no.1 was simple and injury 2 was to
be kept under observation. He has stated
that injury no.1 could have been caused due
to fall and injury no.2 may also have been
caused if the injured hit the corner of a
Staircase.

17. P.W.-9 Sri Hakim Singh is the
Sub-Inspector in whose presence the
recovery of the country made pistol and the
Banka was made. Sub-Inspector, Sri Hakim
Singh has proved the recovery as was made
with regard to the country made pistol of
315 bore at the indication of Shakeel. He
has also proved the recovery of the Banka
at the indication of Kaleem. He has very
categorically stated that the recovery was
made from a populated area and that the
house, where recovery had taken place was
in the midst of the city, but he has stated
that no independent witness came forward
despite request from the Police personnel.
He has also categorically stated that prior to
the recovery no statement of the accused
was recorded. He has also proved recovery
of the mobile phone No. 9918932015 of
kaleem. He has also proved the call details
according to which the accused Kaleem
used to talk to the accused Pradeep on his
Mobile No. 9918267600 and that he has
stated that just prior to the incident they
had talked to each other.

18. P.W.-10 Kanhaiya Lal, who was
posted as an assistant at the place where the
postmortem took place has proved the fact
that the postmortem report was scribed by
the doctor in his own hand writing.

19. P.W.-11 Yash Karan, is the Subinspector in whose presence the bodies
were sealed/stitched and he has proved the
inquest reports.

20. P.W.-12 Sri Ashok Kumar, the
Station House Officer was the Investigating
Officer of the case and he has stated that he
had investigated the case and he has stated
that in First Information Report it was
stated that some unknown persons had
committed
the
murder
and
on
the
statements of Mohan and Kamal, he came
to know that Mohd Kaleem, Pradeep
Dhobi, Lallan, Shakeel in a planned
manner committed murder of Yasmeen,
Narseen and Noorjahan by firing on them.
He has also stated that there was a lacerated
injury on the head of Shakeel (It appears
that he wanted to mention the name of
Kaleem). He has also stated that the two
accused Shakeel and Kaleem were arrested
on the same date and they had admitted
their guilt. He has further stated that
recoveries of the country made pistol and
the Banka were made on the pointing out of
Shakeel and Kaleem. When the statement
of the SHO (PW-12- Ashok Kumar) was
being recorded, he has stated that in the
court only Banka, one cartridge of 12 bore
and cartridges of 315 bore were presented.
PW-12 died thereafter and he was never
cross-examined.

21. P.W.-13 Suraj Singh is the
investigating Officer for the offences under
the Arms Act. He has stated that he has no
knowledge as to whether the recovered
country made pistol was sent for Forensic
investigation. He has also stated that before
the recovery was being made, statements of
the two accused Shakeel and Kaleem were
not recorded. He has also stated that the fire
arms recovered were used in the crime as
there was a report of the Forensic
1522 INDIAN LAW REPORTS ALLAHABAD SERIES
laboratory. He has stated that in his crossexamination that it is wrong to say that site
plan was prepared in the Police Station.

22. P.W. 14, Dr. Yogendra Singh, the
Radiologist has proved the post mortem
report of the three deceased Yasmeen,
Noorjahan, Nasreen.

23. Court Witness C.W. -1 Ram
Lalli, who is the mother of accused
Pradeep has been examined to confirm the
age of the accused Pradeep at the time of
the incident.

24. C.W.-2 Munna Lal, the father of
Pradeep was discharged on the application
made by him to the effect that he is not in a
position to give any statement as he had
lost his memory.

25.

D.W.-1
Raunak
in
his
examination has deposed that Yasmeen was
his daughter and married to Kaleem and
there was no dispute between them.
Kaleem, he has stated, was innocent. He
stated that it was wrong to say that Kaleem
had illicit relation with his Saali (sister-inlaw) and it was also wrong to say that she
became pregnant due to this illicit relation.
It is also wrong to say that because of the
illicit relation Yasmeen used to quarrel with
Kaleem. Kaleem used to come to his house
once in a year and stay there for a day or
two. He had also stated that the nand
(sister-in-law) of Yasmeen, Nasreen was
young but he could not know her age. He
also deposed that he did not know that
Nasreen had developed illicit relation
therefore Kaleem was trying to do away
with her. He deposed that he informed the
police that he was the father of Yasmeen.
He also deposed that he did not know that
who had killed Yasmeen and it was wrong
to say that he was trying to save Kaleem
due to pressure.

26. D.W. -2 Shareef is the neighbour
of Kaleem and has deposed that his house
is near the house of Kaleem. He came to
know about the killing of wife, mother and
sister of Kaleem on the next morning. He
deposed that in this case Kaleem was
falsely implicated. Police had enquired
about this from the local residents and all
had denied the involvement of Kaleem in
the crime but police had not agreed. In his
cross examination he deposed that he had
seen the dead bodies in the morning after
the incident. He heard the sounds of three
to four rounds of firing at about 4 a.m.
which was coming from the house of
Kaleem. Next morning he went to the
house of Kaleem but had not entered in the
house. He entered in the house alongwith
the police and saw the three dead bodies
lying on the floor. He had stated that he
knew Kaleem and did not know the other
accused persons. He further had stated that
the incident occurred in the house of
Kaleem and at that time Kaleem was
present in his house.

27. D.W.-3 Altaf deposed that he was
residing in the house of Sabir on rent near
the house of Kaleem. In the night he heard
the sounds of fire arms at about 3 - 4 a.m.
and had gone to the roof and from there
saw that a mob had collected in front of the
house of Kaleem but the latter was not
present there. In his cross examination this
witness had stated that in the evening of the
incident at about 8 - 8.30 p.m. Kaleem was
not present in his house. Thereafter he
came there or not he could not tell. He did
not go to the spot and he had no
information about the incident.
3 All. Mohd. Shakeel Vs. State
1523

28. D.W.-4 Raju deposed that his
house was situate near the house of
Kaleem. The incident was about 9 years old
and he remembered that in the night when
the incident had occurred at about 3 - 4
a.m. he had heard the sounds of fire arm
and he had reached on the spot alongwith
the others. He deposed that there was a
rumour that some culprits had committed
robbery and committed the murder of the
three ladies. He deposed that one day
before the incident he had gone to the
house of Kaleem and his wife had told him
that Kaleem would come by the evening
next day. He deposed that they all informed
the police that incident had been caused by
some culprits. In his cross examination he
stated when he went to the house of
Kaleem he saw the dead bodies of his wife,
mother and the sister. He had stated that it
was wrong to say that Kaleem had himself
committed the murder. He had stated that
he did not know that kaleem had received
any injury in the incident. He had stated
that Kaleem was in jail in the murder case
of his wife, mother and sister but he was
wrongly detained in jail. He stated that it
was wrong to say that he was deposing to
save Kaleem, he being his neighbour.

29. D.W.-5 Qadar Kawwal has
deposed that Shakeel was taken by the
police on 26.7.2007 from his shop and
when he went to the police station the
Inspector got his signature on a paper and
said that your son will be released in the
evening. Thereafter police had falsely
challaned his son. He deposed that police
had not recovered the mobile of Kaleem
nor he had seen it. In his cross examination
he had stated that Shakeel was present in
the house in the night of the incident. He
had further stated that when police had
taken Shakeel from the shop he was not
present there and he was informed by some
other persons. It is wrong to say that he is
deposing to save the accused.

30. D.W.-6 Moharram has deposed
that the house of Kaleem was situate at a
distance of 700 - 800 meters from his
factory. In the night of the incident Kaleem
had gone to his house at about 4 a.m. Some
persons had reached his factory and had
called for Kaleem saying that something
had happened in his house. He deposed that
he reached the house of Kaleem after about
15 - 20 minutes and saw that Kaleem was
lying in a fainted condition at his main gate
and there were injuries on his head.

31. The five accused persons got their
statements recorded under section 313
Cr.P.C. The accused Kaleem gave his
additional statement in writing which is
there on record as Paper No. 224-A.

32. The trial court after considering
the entire evidence on record had acquitted
the accused Lallan @ Lalla of all the
offences under Sections 147, 148, 302/149
I.P.C. upon granting him the benefit of
doubt.
However,
the
trial
court
on
13.10.2022 found Mohd. Kaleem & Mohd.
Shakeel in Sessions Trial No. 612 of 2007
guilty. This case arose out of Case Crime
No. 1002 of 2007 under Sections 302/34
I.P.C. and acquitted them for the offences
u/s 147, 148 I.P.C. Accused Mohd. Kaleem
in Sessions Trial No. 611 of 2007 arising
out of Case Crime No. 1012 of 2007 was
also found guilty under Section 4/25 of the
Arms Act. Similarly, Mohd. Shakeel in
Sessions Trial No. 611 of 2007 arising out
of Case Crime No. 1011 of 2007 under
Section 25/25 Arms Act was found guilty.

33. They were heard on the question
of sentence and on 03.11.2022 after looking
into all the mitigating and aggravating
1524 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances
sentenced
Kaleem
and
Mohd. Shakeel in Sessions Trial No. 612 of
2007 arising out of Case Crime No. 1002 of
2007 with death penalty and they were also
fined Rs. 50,000/- each. In default, they had
to
undergo
two
years
rigorous
imprisonment. They were directed to be
hanged till death. With regard to Sessions
Trial No. 611 of 2007 arising out of Case
Crime No. 1012 of 2007, Mohd. Kaleem
was convicted under Section 4/25 of the
Arms Act with rigorous imprisonment of
three years and he was fined for Rs.
10,000/-. In the event of the non-payment
of fine, he was to undergo further six
months of rigorous imprisonment. Again,
with regard to the accused Shakeel in Case
Crime No. 1011 of 2007, under Section 25
of the Arms Act, he was sentenced for three
years rigorous imprisonment with fine of
Rs. 10,000/- and in default of payment of
fine,
six
months
further
rigorous
imprisonment was ordered. He has also
been sentenced under section 27 of Arms
Act for a period of three years rigorous
imprisonment with fine of Rs.10,000/- and
in default of payment of fine further six
months rigorous imprisonment had to be
undergone.

34. Upon order of sentence of death having
been imposed, Additional Sessions Judge,
referred the matter on 03.11.2022 to this
Court and the reference was numbered as
Capital Reference No. 14 of 2022. The
appellants Mohd. Shakeel and Mohd.
Kaleem had filed their separate appeals.

35. Learned counsel for the appellants
has made the following submissions :-
20201

(i) The recovery as has been
made by the police, itself becomes doubtful
as in the recovery memo, it has been stated
that at the indication of the accused Shakeel
from his own courtyard in the northsouthern corner, when certain loose bricks
were removed, a country made pistol of
315 bore was recovered. Thereafter from
the house of Shakeel itself, it has been
stated in the recovery memo that Kaleem,
who was the co-accused, in the very same
courtyard in the south-western corner after
removing certain bricks, got recovered a
Banka (gandasa). Learned counsel for the
appellants states that if the site-plan is seen
then it clearly shows that the country made
pistol and the banka was recovered from
the house of Kaleem. Learned counsel for
the appellants further relying upon the
judgments of the Supreme Court in
Ramanand @ Nandlal Bharti vs. State of
Uttar Pradesh reported in AIR 2022 SC
5273; Subramanya vs. State of Karnataka
reported in AIR 2022 SC 5110 and in
Rajesh & Anr. vs. State of Madhya
Pradesh in Criminal Appeal No(s). 793794 of 2022 and specifically relying upon
paragraphs 53 to 57 and 70 in the case of
Ramanand @ Nandlal Bharti (supra) has
submitted that the recovery under section
27 of the Evidence Act itself was doubtful
as the accused were in the police custody
and before the police proceeded for the
recovery, no memo regarding the disclosure
statement was prepared which was required
to be compulsorily prepared in the presence
of independent witnesses. Also, it has been
stated that before the police proceeded for
recovery of the weapon, no effort was made
to
have
two
independent
witnesses.
Learned
counsel
for
the
appellants,
therefore, states that the recoveries on the
pointing out of the appellants was itself
doubtful and they could not have been
convicted on such a recovery.

(ii) Learned counsel for the
appellants has stated that there was
recovery of country made pistol of 315
3 All. Mohd. Shakeel Vs. State
1525
bore, used in the crime, along with a Banka
but there is definite evidence of the fact
that there were pellets embedded in the
body of Yasmeen which could be possible
only on the firing by a 12 bore pistol,
which fact is also reflected in the post
mortem report.

(iii)
Learned
counsel
has
submitted that the accused made extra
judicial confessions before Mohan and
Kamal and on their statements the
appellants
Kaleem,
Shakeel,
Pradeep,
Lallan and Sanjeev were involved in the
crime but no endeavour was made by the
prosecution to get Mohan and Kamal
examined during trial to prove the guilt of
the appellants. Learned counsel submits
that to give credence to the story of extra
judicial confession, one Mohd. Qamar
(PW-3)
was
produced
and
he
has
specifically, while appearing in the witness
box, denied the fact that any extra judicial
confession was made to him. Learned
counsel for the appellant relied upon the
statement of Mohd. Qamar (PW-3), which
is being reproduced here as under :-

"र्शकील पुत्र र्शब्बीर हावजर अिालि कलीम के
िाऊ के बेटे है। घटना के बाि हावजर अिालि मोहम्मि कलीम
व हावजर अिालि र्शकील घटना के बाि मुझे नहीं वमले थे।
कलीम और र्शकील ने मुझसे यह नहीं कहा था पुवलस वालों से
मेरी अच्िी जान पहचान है। मैं आप से मिि चाहिा ह ाँ। हम
लोगों ने ही यास्मीन, नूरजहााँ व कुमारी नसरीन की हत्या गोली
मार कर कर िी थी।"

(iv) Learned counsel for the
appellants has further submitted that the
prosecution has come up with a case that
the empty cartridges, bullets and Banka
were sent to the Forensic Laboratory. He
submits that there is no evidence of the fact
as to when the sealed empty cartridges,
country made pistol and the banka were
actually sent and as to whom they were
sent. He has submitted that the FSL reports
dated 14.11.2007 and 5.2.2008 mention that
the samples of empty cartridges, pistol and
banka were brought by one Laxman Lal but
neither Laxman Lal was produced nor any
effort was made by the prosecution to
prove the fact that the samples which were
sealed were actually sent to the Forensic
Laboratory.
Learned
counsel
for
the
appellants states that the missing link, as to
who took the empty cartridges, the country
made pistol and Banka to the Forensic
Laboratory, when goes unproved then the
whole case becomes doubtful.

(v) Learned counsel for the
appellant has further submitted that if the
statement in chief of Sub-Inspector Hakim
Singh, who had proved the recovery, is
seen then it becomes clear that the bundle
of which the seal was opened in the Court
contained the country made pistol of 315
bore and that the other bundle, when was
opened, contained the banka. He states that
the Investigating Officer Ashok Kumar in
the witness box has stated that in his
presence only the sample of plain soil;
blood stained soil; banka, one empty
cartridge of 12 bore; and one Gandasa were
produced in the Court. Learned counsel for
the appellants, therefore, submits that when
the Investigating Officer in the witness box
stated that the country made pistol and one
empty cartridge of 315 bore were not
produced, the only conclusion would be
that the material exhibits were being
tampered with and no reliance could be
placed on the evidence which has been
produced
and
relied
upon
by
the
prosecution.

(vi) Learned counsel for the
appellants has submitted that when there
1526 INDIAN LAW REPORTS ALLAHABAD SERIES
were five accused persons and only two
weapons
were
introduced
in
the
prosecution story then the whole case
becomes doubtful and it was not certain as
to whether the deaths were the result of the
firing by which of the assailants. He
submits that it is not clear as to who exactly
was the person responsible for the firing by
12 bore pistol. He also submits that the 12
bore pistol was never recovered.

(vii) Learned counsel for the
appellants has submitted that the motive in
the case was also not clear. PW-1 had stated
that the character of the wife of appellant
Kaleem was not good and therefore the
appellant-Kaleem with the assistance of
Shakeel and other co-accused had doneaway with his wife. He had stated that,
however, the motive viz.-a-viz. PW-2 was
changed and he had submitted that because
Kaleem had an affair with the sister-in-law
(sali) and this affair was known to his wife
Yasmeen, the mother Noorjahan and sister
Nasreen therefore they were done away.
Learned counsel for the appellants further
states, relying upon the statement of the
accused Kaleem as has been recorded
under section 313 Cr.P.C. and as had also
been written down by him in Paper
No.224-A, that the appellant was never
present on the spot and that he was in fact
engaged in the work of embroidery at his
work-place. He submits that this statement
of Kaleem is also corroborated by the
statement of DW-6 Moharram Ali who was
the employer of the accused Kaleem and
also stated that when the whole incident
had taken place, someone had come to call
Kaleem and thereafter Kareem left his
work-place and had gone home. Learned
counsel for the appellants has further relied
upon the statement of DW-1 Raunak Ali
who is the father-in-law of Kaleem and has
very categorically stated that the accused
Kaleem was in no manner involved in the
crime and Kaleem was in fact injured
during the course of a fall and that he had
been taken to the hospital.

(viii) Learned counsel for the
appellants thereafter submitted that the case
was of a circumstantial evidence and
relying upon Sharad Birdichand Sarda vs.
State of Maharashtra reported in AIR
1984 SC 1622 : (1984) 4 SCC 116 he
submits
that
when
the
chain
of
circumstances is not completed then the
crime could not be proved. He, therefore,
submits that the appellants deserve to be
acquitted. Relying upon the decision of
Sharad Birdichand Sarda (supra) learned
counsel for the appellants states that there
were five salient points which are to be
seen for the conviction of an accused which
are as follows :

"1. The circumstances from which
the conclusion of guilt is to be drawn
should be fully established;

2. The fact so established should
be consistent only with the hypothesis of the
guilt of the accused;

3. The circumstances should be of
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."

These
ingredients
have
to
be
necessarily there for the trial court to come
to a conclusion that the accused were
guilty.
(ix) Further learned counsel for the
appellants submits that the motive was not
3 All. Mohd. Shakeel Vs. State
1527
there;
there
was
no
extra
judicial
confession proved; the evidence as was
produced by the prosecution do not speak
of any person who had last seen the
accused either entering or leaving the place,
then the case which was based on
circumstantial evidence could not be
proved and the appellants ought to be
acquitted.
Learned
counsel
for
the
appellants further submitted that the
provisions of section 106 of the Evidence
Act would not apply as the accusedappellant was not in the house and that
there was no knowledge which would
specifically make him liable to discharge
his burden. He submits that absolutely no
evidence was produced by the prosecution
to prove that any of the accused was
present at the place of incident. To bolster
his submissions, learned counsel for the
appellants relied upon a judgment of this
Court in Jail Appeal No.116 of 2019
(Chatthoo Chero vs. State of U.P.) decided
on dated 7.4.2022, and has specifically
relied upon paragraph 36 of it, which is
being reproduced here as under :-

"36. The circumstance proved by
the prosecution is that the appellant was
not alone with his wife in the house when
she was murdered. Admittedly, grown up
children i.e. sons and daughters were also
present;
the
witnesses
of
fact
and
independent witnesses have not been able
to prove that the relation between the
appellant and his wife was strained; the
theory of strained relationship driving the
appellant to commit suicide few days
earlier of the incident for money was not
proved by the witnesses examined by the
prosecution,
including,
independent
witnesses. The motive has not been proved
nor assigned for commission of the
offence."

(x) With regard to the fact that
recovery did not complete the chain of
evidence, learned counsel for the appellants
has relied upon paragraph 42 of the
judgment dated 7.4.2022 passed in Jail
Appeal No.116 of 2019, which is also being
reproduced here as under :-

"42. With regard to Section 27 of
the Evidence Act, what is important is
discovery of the material object at the
disclosure of the accused but such
disclosure alone would not automatically
lead to the conclusion that the offence was
also committed by the accused. In fact,
thereafter, burden lies on the prosecution to
establish a close link between discovery of
the material objects and its use in the
commission of the offence. What is
admissible under Section 27 is the
information leading to discovery and not
any
opinion
formed
on
it
by
the
prosecution."

(xi) Learned counsel for the
appellants further submitted that if the
entire circumstances are seen, even if the
appellants were to be convicted, no case
was made out for awarding the capital
sentence as it would definitely not fall in
the rarest of the rare cases.

36. Per contra, learned A.G.A.