ASHOK KUMAR v. STATE OF MADHYA PRADESH — 1995 DIGILAW 429 (MP)

H. P. AWASTHY, J. ( 1 ) IT is an appeal against the finding of holding accused-appellant Ashok Kumar guilty for committing offences punishable under Sections 302 and 498-A of I. P. C. and sentencing him to imprisonment for life and to undergo R. I. for two years and to pay a fine of Rs. 100/- on each count or in default undergo R. I. for one month on both of the said counts. Bhanmati has appealed against the finding of holding her guilty for committing an offence punishable under Section 302 read with Section 34 of I. P. C. and Section 498-A of I. P. C. and sentencing her to imprisonment for life and R. I. for two years and to pay a fine of Rs. 100/- on both of the said counts or in default to further undergo R. I. for one month each. ( 2 ) IT is not in dispute that Usha was married, according to Hindu rites, to appellant No. 1 Ashok Kumar, about six to seven years prior to her death. Upendranath (PW 14) is the father, Pyaridevi (PW 12) is the mother, Dhirendranath (PW 11) is the brother and Chandrakala (PW 13) is the sister-in-law of deceased Usha. Bhanmati (appellant No. 2) is the mother-in-law, Ku. Mamta (acquitted accused) is the sister of appellant No. 1 Ashok Kumar. ( 3 ) IT is also not in dispute that in the morning on 21st of April, 1989, the dead body of Usha was found lying in a ditch in the court-yard of the house which was in the occupation of the accused appellants. ( 4 ) IT was also not in dispute that accused appellant NO. 1 Ashok Kumar was posted as a police constable and on the relevant night he was to perform his duty as a Guard in the Bank, which is situated in the Court Campus at Raipur. After conduction of post-mortem examination on the dead body of Usha, Ashok and Bhanmati were sent for medical examination and abrasions were found on the right forearm and wrist of Ashok while the simple injuries were also found on the person of Bhanmati. ( 5 ) PROSECUTION case is that the accused appellants were demanding one motorcycle and one golden chain weighing two tolas from the parents of Usha. ( 5 ) PROSECUTION case is that the accused appellants were demanding one motorcycle and one golden chain weighing two tolas from the parents of Usha. As the parents of Usha were unable to give the said articles to accused, they were subjecting her to cruelty. When the parents of Usha could not give any motor-cycle to accused Ashok, he himself purchased one motorcycle, but persisted in subjecting Usha to cruelty. ( 6 ) ON the date of incident, father of accused Ashok Kumar viz. Devnath, had gone to Manella. Thus on the said date only Bhanmati, Kumari Mamta and Ashok were present in the said house. Ashok had not attended his duty as a Guard in the Bank and had come from Raipur to Village Chhura where the accused-appellants used to reside. In the night all of the said three accused kept some soft article like pillow on the nose and mouth of Usha and suffocated her to her death. 6. On the date of incident, father of accused Ashok Kumar viz. Devnath, had gone to Manella. Thus on the said date only Bhanmati, Kumari Mamta and Ashok were present in the said house. Ashok had not attended his duty as a Guard in the Bank and had come from Raipur to Village Chhura where the accused-appellants used to reside. In the night all of the said three accused kept some soft article like pillow on the nose and mouth of Usha and suffocated her to her death. ( 7 ) AFTER thus causing death of Usha in the sleeping room in which Usha used to reside, her dead body was brought by the accused-appellants in the ditch situated in the Court-yard of their house. They kept the dead body of Usha in the said ditch to make a show that Usha had accidentally fallen in the said ditch. Thereafter, Ashok left his house situated in Chhura for Raipur on his motor-cycle at about 3. 00 Oclock in the night. ( 8 ) IN the next morning a scene was created as if Usha had accidentally fallen in the said ditch and Dr. Gupta was called who upon examining the dead body of Usha advised to call some Doctor in Govt. Service. Dr. Agarwal and Dr. K. B. Rao came there and informed that Usha had already died. ( 9 ) DR. Gupta was called who upon examining the dead body of Usha advised to call some Doctor in Govt. Service. Dr. Agarwal and Dr. K. B. Rao came there and informed that Usha had already died. ( 9 ) DR. K. B. Rao informed the police by sending information (Ex. P-17) regarding unnatural death of Usha. On receiving the said information Shri V. Tirki (PW 32) recorded the report regarding unnatural death of Usha and came to the house of the accused. He made usual death inquest (Ex. P2) and sent the dead body of Usha for conduction of autopsy on the said dead body. ( 10 ) DR. K. B. Rao performed post-mortem examination on the said dead body as per report (Ex. P18 ). Dr. Rao found two small incised injuries on the right palm as well as on the right middle finger and abrasions on the right and left knees of Usha. In the opinion of Dr. Rao, the said injuries were anti-mortem in nature and the injuries on the right palm and middle finger could have been caused by human nails. In his opinion, the cause of death of Usha was Asphyxia caused by suffocating her. ( 11 ) ON receiving the said report (Ex. P-18) of post-mortem examination of the dead body of Usha, First Information Report (Ex. P-29) was recorded at Police Station, Chhura. The clothes which were found on the dead body of Usha and a slide which was prepared by Dr. K. B. Rao at the time of post-mortem examination were seized, The motor-cycle of Ashok, his helmet and the documents of the said motor-cycle were also seized. ( 12 ) THE accused denied the said allegations and pleaded not guilty. Accused Ashok has given an explanation that while taking out his motor cycle he received an injury on his right fore-arm as his right hand dashed against a bolt of a door. Accused Bhanmati has explained that when she took out the body of Usha from the ditch she sustained injuries as were found on her body in medical examination as per report (Ex. P 22 ). Accused Ashok has submitted his defence that he was not present at the place of incident but had attended his duty at Raipur. ( 13 ) AFTER recording the evidence in the case, the Trial Court held accused-appellants guilty and sentenced them as detailed above. P 22 ). Accused Ashok has submitted his defence that he was not present at the place of incident but had attended his duty at Raipur. ( 13 ) AFTER recording the evidence in the case, the Trial Court held accused-appellants guilty and sentenced them as detailed above. ( 14 ) IT has been argued for the accused appellants that the entire prosecution case is based on alleged circumstantial evidence. Firstly, the said circumstances were not established. There is absolutely no evidence available on record to indicate that accused Ashok was present in his house at Village Chhura in the night on which Usha died a homicidal death. The circumstances alleged to have been established against the accused-appellant No. 2 Bhanmati do not lead to an irresistible conclusion that she, in any way, formed a common intention of causing death of Usha and in furtherance of said common intention, she did any criminal act in or for committing the said offence. There is absolutely no evidence available on record to indicate that the accused had subjected Usha to any cruelty. ( 15 ) IN reply it has been submitted that from the evidence available on record, it is fully established that Ashok was not present on his duty in the night of the incident. The totality of evidence available on record dearly goes to indicate that he had come to his house at village Chhura from Raipur on his motor cycle and his motor-cycle was found standing facing towards his house covered by a cover. Injuries were also found on the persons of both of the appellants which fact goes to indicate that it were they who caused the death of Usha. Only three accused were present in the house when Usha was done to death. However, looking to the natural conduct of co-accused Ku. Mamta, benefit of doubt was given to her and she was acquitted. Nevertheless, the evidence available on record goes to positively indicate that only these two appellants had the opportunity to commit murder of Usha. There is also evidence available on record to indicate that Usha was being subjected to cruelty by the appellants. Appellant No. 1 Ashok was not keeping Usha with him at Raipur even when he was in occupation of a house and was keeping her at Chhura, where he used to visit only once or twice in a month. There is also evidence available on record to indicate that Usha was being subjected to cruelty by the appellants. Appellant No. 1 Ashok was not keeping Usha with him at Raipur even when he was in occupation of a house and was keeping her at Chhura, where he used to visit only once or twice in a month. Thus, the Trial Court has not committed any error in holding the accused-appellants guilty of the charged offences. ( 16 ) FROM the testimony given by Dr. K. B. Rao, it is fully established that Usha died a homicidal death. Therefore, the main point for determination in the present case was and is as to whether prosecution has fully established, beyond MY reasonable doubt, that it were the accused appellants and the accused-appellants alone who were the authors of the said offence. ( 17 ) THERE is no eye witness of the incident and the prosecution case is based only on circumstantial evidence. ( 18 ) FOLLOWING are the circumstances on which the prosecution based its case for connecting the accused with the crime: (1) Accused Ashok was absent from his duty in the night of the incident. (2) He (Ashok) did not return to his house at Raipur in the light of the incident. (3) He (Ashok) was seen coming to village Chhura, by Mohd. Akhtar (PW-7 ). (4) Shri Parasram Yadu (PW-16) and Shri M. L. Bihone (PW-17) saw the motor-cycle standing in front of the house of the accused which motorcycle was covered with a cover and was facing towards the house of the accused. (5) A scene was created to cause an impression that Usha had accidentally fallen in the ditch filled with water. (6) Injuries were found on the persons of the accused-appellants, which could have been caused during a scuffle. (7) Only the accused had the opportunity to commit murder of Usha. (8) the accused were subjecting Usha to cruelty and thus there was a motive for the accused to commit murder of Usha. (9) Accused Ashok has given a false explanation pertaining to a circumstance appearing against him that he was not present on his duty. (7) Only the accused had the opportunity to commit murder of Usha. (8) the accused were subjecting Usha to cruelty and thus there was a motive for the accused to commit murder of Usha. (9) Accused Ashok has given a false explanation pertaining to a circumstance appearing against him that he was not present on his duty. ( 19 ) NOW, the law regarding appreciation of circumstantial evidence is well established, which is as follows: The said circumstantial evidence must satisfy there facts, Firstly, the circumstance from which an interference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, those circumstances should be of a definite tendency in unerringly pointing towards the guilty of the accused. Thirdly, the circumstances taken cumulatively should form a chain so complete that there is no escape andom the conclusion that in all human probability the crime was committed by the accused and none else. That is to say, the circumstance should be incapable of explanation on any reasonable hypothesis save that of the guilt of the accused. See Chandmal v. Stale of Rajasthan, and also Raghav Prapanna v. State of U. P. , and Govinda Reddy v. State of Mysore. Now in the present case, it has to be seen as to whether the above narrated circumstances have been cogently and firmly established. ( 20 ) IN our opinion unless and until, it is established that accused Ashok had come to his house from Raipur to village Chhura and was present in his house in the relevant night in which night, murder of Smt. Usha was committed, the remaining circumstances narrated above are not so definite or concucive in nature that even if it be held that the same are established, the said circumstances would not unerringly point to the guilt of the accused alone. Therefore, firstly it has to be seen as to whether prosecution could succeed in establishing that accused Ashok was present in the relevant night in his house at village Chhura. ( 21 ) CIRCUMSTANCES Nos. 1 and 2: - From the testimony given by Shivnath Pathak (PW 27), Jainarayan Shingh (PW 28) and Shivnath Singh (PW 29), it is fully established that on the relevant night, the accused did not attend his duty. ( 21 ) CIRCUMSTANCES Nos. 1 and 2: - From the testimony given by Shivnath Pathak (PW 27), Jainarayan Shingh (PW 28) and Shivnath Singh (PW 29), it is fully established that on the relevant night, the accused did not attend his duty. Though, the testimony given by Rakesh Kumar Pandey (PW 3) cannot 00 said to 00 wholly reliable, yet even it be believed, it goes merely to indicate that the accused after leaving his house at Raipur, in that relevant night, did not return to his house at Raipur in that night. It is true, that the said adverse circumstance appearing against accused-appellant (Ashok) which emerges from the testimony given by a witness who was examined in defence was not put or could not 00 put to the accused, as the learned Judge of the Trial Court might have considered that the stage of the examination of accused was already over. However, question pertaining to the said adverse circumstance appearing against the accused can still be asked from him to obtain his explanation regarding the said circumstance appearing against him. Nevertheless in our opinion, it would be an unnecessary exercise. It is so because, even it be assumed that the accused had not returned to his house at Raipur in the night it cannot be inferred from the said circumstance with any amount of certainty, that he had positively gone to his house at village Chhura. For the present, both of the circumstances Nos. 1 and 2 that the accused did not attend his duty on the relevant night and did not return to his house at Raipur, in the said night, are held to be established. ( 22 ) CIRCUMSTANCE No. 3: - Regarding this circumstance Mohd. Akhtar has only deposed that on seeing a person going on a motor-cycle at about 11 OTclock in the night, he formed an impression that accused Ashok was going on the motor-cycle (and was coming from the side of Raipur) towards village Chhura. However, he has also stated that he could not identify the said person with certainty. He has also stated that the officials of the Police Department has disclosed that the name of the present accused No. 1 is Ashok. ( 23 ) THUS, on the basis of testimony given by Mohd. Akhtar, it emerges that a person coming on Motor-cycle at about 11. He has also stated that the officials of the Police Department has disclosed that the name of the present accused No. 1 is Ashok. ( 23 ) THUS, on the basis of testimony given by Mohd. Akhtar, it emerges that a person coming on Motor-cycle at about 11. 00 Oclock in the night caused a vague impression on the mind of the said witness that the said person might be the son of Principle, who (Principal) was residing ahead and in front of the building of the State Bank at village Chhura. Now the said impression could be correct or might have been incorrect also. Mohd. Akhtar had himself stated that he could not identify the said person with certainty. Therefore, on the basis of the testimony given by Mohd. Akhtar, it cannot be said that Mohd. Akhtar had seen the accused coming to village Chhura from the side of Raipur, on a motorcycle. Consequently, circumstance No. 3 is held to have not been established. ( 24 ) CIRCUMSTANCE No. 4: - From the testimony given by Shri Parasram Yadu (PW 16) and Shri M. L. Bihone (PW 17), it is fully established that one motor-cycle was found standing infront of the house of the father of accused-appellant Ashok. Shri Parasram Yadu has also deposed that the front side of the said motor-cycle was towards the house of the accused whereas its rear portion was towards the road which passed in front of the house of the accused. Both of the said witnesses have deposed that the said motor-cycle was covered by a cover. There is no reason to disbelieve the said testimony and hence, this circumstance is held to be established from the testimony given by the said two independent and wholly reliable witnesses Shri Parasram Yadu (PW 16) and Shri M. L. Bihone (PW 17 ). ( 25 ) CIRCUMSTANCE No. 5: - There is no evidence available on record to indicate that Smt. Usha was killed anywhere else and her dead body was kept in the ditch situated in the court-yard of the house of accused-appellant for creating a wrong impression that Smt. Usha had accidentally fallen in the said ditch. Therefore, it is held that Circumstance No. 5 could not be established. Therefore, it is held that Circumstance No. 5 could not be established. ( 26 ) CIRCUMSTANCE No. 6: - It is established that injuries were found on the person of accused Ashok as well as accused Bhanmati, the said injuries could have been caused in scuffle as well. It is, therefore, held that circumstance No. 6 is established. ( 27 ) CIRCUMSTANCE No. 7: - From the map (Ex. P 28) and unchallenged testimony given by Ramjanam Pandey (OW 2), it appears that the boundary wall of the court-yard of the accused appellant is only up to two and a half to three feet high. Therefore, any person intending to commit house trespass could have scaled the said wall. Consequently, it is held that Circumstance No. 7 is not established. On the other hand, from the said testimony available on record, it appears that apart from the accused-appellant any other culprit also could have committed the said offence. ( 28 ) CIRCUMSTANCE No. 8: - Upendranath Pandey (PW 14) has deposed that when the father of accused Ashok was posted at Manclia, his son Direndranath (PW 11) had stayed in the house of accused Ashok and his parents at Mandla for a period of one year to one year and a half. He has further stated that when accused Ashok was posted at Kesskal, his son Direndranath (PW 11) has denied the said fact, yet there appears to be no reason to disbelieve testimony given by Upendranath (PW 12 ). In view of the said statement given by Upendranath (PW 14), it becomes quiet doubtful that the accused were subjecting Usha to cruelty. Had they been treating Usha with cruelty, they would not have had permitted her brother to stay in their house for such a long duration. In view of the said circumstance, it is held that circumstance No. 8 could not be fully and conclusively established. ( 29 ) CIRCUMSTANCE No. 9: - This circumstance of giving false explanation regarding a circumstance appearing against the accused can be taken into consideration only if other circumstances established against the accused establish with certainty that it was the accused and the accused alone who had committed the said offence. ( 29 ) CIRCUMSTANCE No. 9: - This circumstance of giving false explanation regarding a circumstance appearing against the accused can be taken into consideration only if other circumstances established against the accused establish with certainty that it was the accused and the accused alone who had committed the said offence. If the circumstances are not conclusive in nature and do not unerringly point out the guilt of the accused and do not exclude the hypothesis of innocence of the accused, the said circumstance of the accused giving a false explanation regarding a circumstance appearing against him cannot by itself considered for holding the accused guilty. Nevertheless, from the testimony given by Shivnath Pathak (PW 27), Jainarayan Singh (PW 28) and Shivnath Singh (PW 29), it is fully established that the accused had not come on duty in the relevant night, yet he has denied the said fact and has claimed that he had performed his duty on the relevant night and was present at Raipur. Therefore, Circumstance No. 9 is held to be established. Thus, in the result, Circumstances 1, 2, 4, 5 and 9 only are established against accused Ashok. ( 30 ) NOW the next question is as to whether, on the basis of the said established circumstances, it can be said that it was the accused and accused Ashok alone who alongwith his mother Bhanmati, had committed said offence of murdering Smt. Usha. As has already been mentioned circumstances Nos. 1 and 2 are inclusive in nature. Even If the accused did not attend his duty at Raipur or did not come to his house at Raipur in the said night, it cannot be said with certainty the accused had come to his house at village Chhura from Raipur. The hypothesis cannot be excluded that the accused might have remabled present somewhere other than his house at village Chhura. ( 31 ) SHRI Parasram Yadu and Shri M. L. Bihone have not deposed that the motor-cycle which was seen by them standing in front of the house of the accused belonged to the accused. It is correct that since the motor-cycle case standing facing the house of the accused and was covered with a cover, it gives rise to a strong suspicion that the said motor-cycle might be belonging to the accused. It is correct that since the motor-cycle case standing facing the house of the accused and was covered with a cover, it gives rise to a strong suspicion that the said motor-cycle might be belonging to the accused. But there is a long distance between might bet and must be and the prosecution has failed to establish that the said motor-cycle was that of the accused. Regarding this circumstance also, hypothesis cannot be excluded that some unknown person had kept his motor-cycle in front of the house of the accused and had covered It to protect it from dust etc. or, so that it may not be damaged. Therefore, the said circumstance merely gives rise to a very grave suspicion against the accused. Nevertheless, the said circumstance does not unerringly goes to establish that it was the accused who had come on the said motor-cycle belonging to him from Raipur to his house village Chhura and had kept his motor cycle in front of his house and had covered it with a cover. Therefore, this circumstance even taken cumulatively with Circumstances Nos. 1 and 2 does not go to conclusively established that in the relevant night accused Ashok had come to his house at village Chhura from Raipur. ( 32 ) REGARDING Circumstance No. 6, it has to be seen that the said injuries could have been caused during a scuffle and could have been caused in any other manner also. Therefore, this circumstance also does not unerringly point to the guilt of the accused. ( 33 ) IT has already been held that Circumstance No. 9 of giving a false explanation regarding an established-circumstance can be taken into account only if the prosecution has succeeded in establishing its case and then such a false explanation can provide a missing link in the complete chain of the circumstance. Nevertheless, as has been detailed above the hypothesis of innocence of accused is not excluded in the present case and the circumstances do not unerringly point to the guilt of these accused-appellants. ( 34 ) IT is no doubt true that the evidence available on record gives rise to a very grave suspicion against the accused-appellants that in all its probability, the accused might have had committed murder of Usha. ( 34 ) IT is no doubt true that the evidence available on record gives rise to a very grave suspicion against the accused-appellants that in all its probability, the accused might have had committed murder of Usha. However; suspicion howsoever grave cannot take place of proof and, therefore, on the basis of the said grave suspicion the accused cannot be held guilty of committing the charged offence of murder of Usha. ( 35 ) IN the result, the present appeal succeeds and being given benefit of doubt, the accused appellants are acquitted of the charges framed against them and on being given benefit of doubt are held not guilty. The sentence awarded to them on both of the above referred counts for committing offence punishable under Section 302 or 302 read with Section 34 of I. P. C and Section 498-A of I. P. C. are set aside. ( 36 ) THE articles produced in the Trial Court Shall be destroyed. Appeal allowed. .