MUSTKEEM @ SIRAJUDEEN versus STATE OF RAJASTHAN

Citation: [2011] 9 S.C.R. 101 · Decided: 13-07-2011 · Supreme Court of India · Bench: A.K. GANGULY · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2011] 9 S.C.R. 101 
MUSTKEEM @ SIRAJUDEEN 
! 
A 
v. 
STATE OF RAJASTHAN 
(Criminal Appeal No.1327 of 2008) 
JULY 13, 2011 
8 
: . 
._ 
[ASOK KUMAR GANGULY AND DEEPAK VERMA, JJ.] 
Penal Code, 1860: 
s. 302134 -
Murder -
Circumstantial evidence - c 
Conviction by trial court - Upheld by High Court - HELD: 
Where the case rests squarely on circumstantial evidence, 
the inference of guilt can be justified only when all the 
incriminating facts and circumstances are found to be 
incompatible with the innocence of the accused or the guilt D 
of any other person - In the instant case, the eye-witnesses 
and one of the recovery witness, having retracted their 
statements uls 161CrPC, were not believed bY courts below 
- As regards other witnesses, there are several discrepancies 
and contradictions in their statements - Their evidence that E 
the accused had one day prior to the incident intimated them 
to eliminate the deceased is not trustworthy - No enmity 
could be established between the accused and the deceased, 
and there was nothing on record which warranted them to 
eliminate the deceased - Recovery witnesses were not local 
F 
persons - Overwriting on the recovery memos was not 
explained by the /. 0. - The blood found on the weapon 
recovered at the instance of the accused was not sufficient 
for test as it had already disintegrated - Thus, looking to the 
matter from all angles, it would not be safe and proper to hold 
the accused guilty of the offence - They are accordingly G 
acquitted- Evidence Act, 1872- s.27 - Constitution of India, 
1950 - Article 226 - Code of Criminal Procedure, 1973 -
s. 162 - Explanation - "Contradictions': 
101 
H 
102 
SUPREME COURT REPORTS 
[2011] 9 S.C.R. 
A 
Evidence Act, 1872: 
s. 27 - Information received from accused - On the 
disclosure statement made by the accused, weapons 
recovered - HELD: With regard to s.27 what is important is 
8 
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 
C - What is admissible u/s 27 is the information leading to 
discovery and not any opinion formed on it by the prosecution 
- One recovery witness was declared hostile and the other 
stated that recovery memos were prepared in the Police 
Station - Thus, the recovery of the weapons on disclosure of 
D the appellants itself becomes doubtful - Penal Code, 1860 
-s.304134. 
Constitution of India, 1950: 
E 
Article 136 - Interference with concurrent findings of the 
courts below - In the instant case, the entire evidence, is 
vitiated by serious errors and if the appellant's conviction is 
upheld then it would amount to miscarriage of justice -
Therefore, the conviction as recorded by trial court and 
confirmed by High Court cannot be sustained in law and, 
F therefore, set aside. 
The appellant along with four others was prosecuted 
for committing the murder of one 'RY'. The prosecution 
case was that on 24.07.2003 at 5.45 p.m., the SHO P.W. 
G 16 received telephonic information about murder of a 
person. He rushed to the spot with police squad and 
found a person lying dead in a pool of blood. On inquiries 
being made, P.W.3 present there informed him that the 
murder was committed by A-1, A-2 and one other person, 
H who was later identified as A-3, by inflicting injuries on 
) 
MUSTKEEM @ SI RAJU DEEN v. STATE OF 
103 
RAJASTHAN 
the victim with sword and knife. The SHO recorded the 
A 
Parcha Bayan of P.W.3 and registered the case. In all 
there were five accused. One of them was declared 
absconder. Out of the remaining four, the trial court 
acquitted one and convicted the three accused-
appellants u/s 302/34 IPC and s.4/25 of the Arms Act. Their 
B 
appeals were dismissed by the High Court. Aggrieved, 
the accused filed the three separate appeals. 
Allowing the appeals, the Court 
HELD: 1.1 In the light of the Post Mortem Report and 
C 
the evidence of the doctor (PW-13), it is evident that 
deceased had met with homicidal death. [para 8] [110-C] 
1.2 It is pertinent to mention that the solitary star 
witness of the prosecution, namely, P.W.3, and the main 
0 
material witnesses were declared hostile. The trial court 
observed in this context that P.W.1 (recovery witness), 
P.W.3 and

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