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2000 DIGILAW 496 (MP)

Shakur Khan v. State of M. P.

2000-05-09

J.G.CHITRE, SHAMHHOO SINGH

body2000
JUDGMENT Singh J. -- 1. This appeal is directed by the accused persons against the judgment and order dated 4.4.94 passed by IIIrd A.S.J. Shajapur in S.T. No. 179/93 whereby the appellants were convicted for offence u/s 302/34 IPC and sentenced to life imprisonment and to pay tine of Rs. 1,000/- each, in default of payment of tine, six months R.I. in addition. 2. The prosecution case, in brief, was that the appellant Kalloo Bharti @ Kamal Bharti, who was related to the deceased Rameshpuri, was having illicit connection with Sushilabai, wife of the deceased Rameshpuri. He used to make the deceased drink liquor and used to commit sexual intercourse with Sushilabai and used to threaten them. About six months before the date of incident i.e. 28.1.93, on Sushilabai's complaint, Panchayat was held in village Kamalpur wherein the Panchas rebuked the appellant Kalloo and warned him not to go to the house of the deceased and dishonour Sushilabai. He administered beating to Sushilabai and made her to lodge false report against the deceased and challan was filed in the Court of Chief Judicial Magistrate, Shajapur which was registered as Cr. Case. No. 619/92. On 25.1.93, the deceased attended the Court of C.J.M. Shajapur with his counsel Shri Tolaram Chandrawani (PW 5). The appellant Shakurkhan was also residing in village Kamalpur and had friendship with the appellant Kalloo. Shakurkhan took cycle on rent from Ghanshyam (PW 8). The appellants went to Chunnilal (PW 9) in village Bherawa and purchased one bottle of country liquor. On 24.1.93 the appellant Kalloo went to Ghanshyam (PW 4) and made him to write in two letters Ex. P. 4 and P. 5 that Rameshpuri was committing suicide due to the cruelty committed by Mangu Gir, Bapu Gir, Kailash Gir, Mohan Gir and Ratan Gir, brother and maternal uncle of the deceased. The deceased after 25.1.93 was not seen alive. His dead-body was found in the well of Chunnilal in village Guzari. On his report, marg No. 3/93 (Ex. D.5) was registered at P.S. Kalapipal by Ramesh Mishra (PW 11); S.H.O. He entrusted investigation to ASI M.L. Karare (P.W. 10), who went to the well and took out the dead-body of the deceased from the well and held inquest on the dead-body and prepared inquest Panchnama Ex. P.4. On his report, marg No. 3/93 (Ex. D.5) was registered at P.S. Kalapipal by Ramesh Mishra (PW 11); S.H.O. He entrusted investigation to ASI M.L. Karare (P.W. 10), who went to the well and took out the dead-body of the deceased from the well and held inquest on the dead-body and prepared inquest Panchnama Ex. P.4. He seized one woolen Shawl, two under-wears, one white plastic bag, one empty bottle of country liquor, two pages of four lined note-book (Ex. P. 4 and P. 5) vide Ex. P. 25. The dead-body of Ramesh was identified by Sushilabai and Bapu Gir, the wife and brother of the deceased. It was sent to Primary Health Centre, Shujalpur for post-mortem examination where Dr. Gopal Mishra (PW 12) conducted autopsy thereon. He did not find any injury on the dead-body and could not give any definite opinion regarding cause and mode of death. He collected viscera. On query Dr. Gopal Mishra opined that the deceased did not die of drowning into the water. It may be possible that the deceased may have been killed by throttling, vide report Ex. P. 29. The appellant Kalloo was arrested on 18.2.93 and appellant Shakurkhan on 6.4.93. The appellant Shakurkhan gave information u/s 27 of the Evidence Act that he had concealed the wrist watch in the field vide memo Ex. P. 4 thereafter Shakurkhan led to the Investigating Officer and witnesses to the field near the well, from where dead-body of Ramesh had been recovered and dug out and gave the wrist-watch Article A which was seized vide memo Ex. P. 15. In identification parade of this watch held by Sarpanch Purshottam (PW 6), Sushilahai and Bapu Puri correctly identified the wrist watch vide memo Ex. P. 2. The hand-writing expert compared the letters Ex. P. 4 and P. 5 with the standard writing Ex. P. 6 to P. 18 of Ghanshyam (PW 4) and opined that the writer of Ex. P. 6 to P. 18 did not write Ex. P. 4 & P. 5 Vide Ex. P. 35. After completion of investigation, challan was filed. The appellants pleaded not guilty and false implication. The learned A.S.J. convicted and sentenced the appellants as stated above. Hence, this appeal. 3. Shri A.S. Thakur, LC for the appellants, submitted that the learned trial Judge committed grave error in convicting the appellants for committing murder of deceased Rameshpuri. P. 35. After completion of investigation, challan was filed. The appellants pleaded not guilty and false implication. The learned A.S.J. convicted and sentenced the appellants as stated above. Hence, this appeal. 3. Shri A.S. Thakur, LC for the appellants, submitted that the learned trial Judge committed grave error in convicting the appellants for committing murder of deceased Rameshpuri. He submitted that the circumstantial evidence produced by the prosecution does not lead to the conclusion that the appellants killed Rameshpuri. The deceased was not last seen alive in the company of the appellants. He submitted that the hand-writing expert clearly opined that Ex. P. 4 and P. 5 were not written by Ghanshyam (PW 4). On the other hand, Shri P. Verma, learned Dy. G.A., contended that the learned trial Judge rightly convicted and sentenced the appellants. 4. We considered the arguments advanced by counsel for both sides and perused the record. 5. In this case, eye-witness account is not available. The prosecution case entirely depends upon the circumstantial evidence. It is settled that accused could be convicted on the basis of circumstantial evidence if chain of circumstances were fully established and were consistent only with the hypothesis of the guilt of the accused and leave no reasonable ground for a conclusion consistent with the innocence of the accused. Their Lordships of the Supreme Court in case of K.M. Shelke v. Stale of Maharashtra, AIR 1973 SC 2474 observed as follows: "In order to base the conviction of an accused on circumstantial evidence the Court must be certain that the circumstantial evidence is of such a character as is consistent only with the guilt of the accused. If, however, the circumstantial evidence admits of any other rational explanation, in such an event an element of doubt would creep in and the accused must necessarily have the benefit thereof. The circumstances relied upon should be of a conclusive character and should exclude every hypothesis other than that of the guilt of the accused. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances must show that within all reasonable probability the impugned act must have been done by the accused. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances must show that within all reasonable probability the impugned act must have been done by the accused. If two inferences arc possible from the circumstantial evidence, one pointing to the guilt of the accused, and the other also plausible, that the commission of the crime was the act of some one else, the circumstantial evidence would not warrant the conviction of the accused." 6. Now we shall examine the prosecution evidence in the light of the observations of the Apex Court. The evidence of Sushilabai (PW 1), the wife or the deceased Rameshpuri and Advocate Tolaram Chandrawashi (PW 5) and the certified copy of the order-sheet dated 25.1.93 of the Cr. case No. 619/92 State or M.P. v. Rameshpuri, proves that the deceased Rameshpuri appeared in the Court or C.J.M. on 25.1.93 in Cr. case No. 619/92 registered on the report lodged by Sushilabai against the deceased. Advocate Tolaram Chandrawanshi deposed that after attending the Court the deceased had left for his home. Ghanshyam (PW 8) turned hostile. He stated that the appellant Shakur Khan had taken a cycle on hire from village Behrawal 7 years back. Chunnilal (PW 9) who is alleged to have sold one bottle of country liquor to the appellant Kalloo Gir and Shakurkhan also turned hostile. He did not stale that the appellant Kalloo had purchased one bottle of country liquor from him. There is no other evidence on record. No one saw the deceased alive in the company of the appellants on 25.1.93 or thereafter nor the appellants were seen on or around the well from where the dead-body of the deceased was recovered. 7. The prosecution relics on two circumstances against the appellant Kalloo, one is that he was having illicit relationship with Sushilabai and the deceased was opposing his (appellant Kalloo) coming in his house and committing sexual intercourse with Sushilahai and find of two letters Ex. P. 4 and P. 5 from the well where the dead-body of the deceased was found. The prosecution relics on two circumstances against the appellant Kalloo, one is that he was having illicit relationship with Sushilabai and the deceased was opposing his (appellant Kalloo) coming in his house and committing sexual intercourse with Sushilahai and find of two letters Ex. P. 4 and P. 5 from the well where the dead-body of the deceased was found. Ghanshyam (PW 4), a student of 6th class, deposed that on 24.1.93 the appellant Kalloo came to him on his well in village Kamalpur and asked him to write a letter on behalf of the deceased mentioning that he was committing suicide due to harassment made by Mangu Gir, Kailash Gir, Mohan Gir, Ratan Gir, Bapu Gir and Gopal Gir. On refusal, the appellant took out gun (pistol) from his pocket and threatened him with life. He, therefore, wrote letter Ex. P. 4 & P. 5. The evidence of this witness is full of contradictions and omissions. The fact of giving threat with pistol does not find place in his police statements Ex. D. 4 and D. 5. He further stands contradicted with Ex. D.5. He stated that he was asked only once by the appellant to write letters while in his police statement Ex. D. 5 in A to A portion, he had mentioned that the appellant Kalloo had made him to write one such letter one year before and one letter one month before writing Ex. P. 4 and P. 5. He admitted that he did not mention to anyone the fact that he was threatened by the appellant Kalloo and he was made to write two letters Ex. P. 4 and P. 5. He remembers that the appellant Kalloo had met him on 24th January and 28th January but he does not remember his date of birth, the date of marriage of his sister, the date of death of his younger brother and the date of marriage of his elder brother and sister. He admits that he does not remember anybody's date of birth. He also does not remember when his result was declared. He stated that he was asked by the appellant to write the name of Ramesh Gir below the writing and he very emphatically stated that he had written Ramesh Gir below the writing, but the word 'Ramesh Gir' is not found in letters Ex. P. 4 and P. 5. He also does not remember when his result was declared. He stated that he was asked by the appellant to write the name of Ramesh Gir below the writing and he very emphatically stated that he had written Ramesh Gir below the writing, but the word 'Ramesh Gir' is not found in letters Ex. P. 4 and P. 5. This witness further stands contradicted with the report of hand-writing expert. The standard writings Ex. P. 6 to P. 23 and questioned writings Ex. P. 4 and P. 5 were examined by hand-writing expert who opined that the writer of Ex. P. 4 and P. 5 did not write Ex. P. 6 to P. 18. The opinion of the hand-writing expert and non-existence of 'Ramesh Gir' below the writing in Ex. P. 4 and P. 5, dearly prove that Ex. P. 4 and P. 5 were not written by this witness at the instance of the appellant Kalloo. This witness was not a truthful witness. The learned trial Judge committed error in putting reliance on his evidence. It is true that Sushilabai, the wife of the deceased. Bapu Gir (PW 2) and Kailash Gir (PW 3), the brothers of deceased and Sarpanch Purshottam (PW 6) have staled that the appellant was a rascal. He used to commit sexual intercourse with Sushilahai against her will in her house and used to threaten the deceased and at the instance of Sushilabai, panchayat was held wherein the Panchas had asked the appellant Kalloo not to go to the house of Sushilahai. Under such circumstances, it can be held that the appellant Kalloo may have motive to kill the deceased as he was obstacle in his way in committing sexual intercourse with his wife hut conviction cannot be recorded on the mere basis of motive, howsoever strong it may be. 8. As stated earlier. Dr. Gopal Mishra (PW 12) who conducted autopsy on the dead-body of the deceased did not find any injury on the dead-body and was unable to give definite opinion regarding the cause and mode of the death of the deceased. The viscera was collected and sent for chemical examination but the report of the same was not produced. It is true that on query Ex. P. 28 Dr. Gopal Mishra stated that it was certain that the deceased did not die due to drowning in water. The viscera was collected and sent for chemical examination but the report of the same was not produced. It is true that on query Ex. P. 28 Dr. Gopal Mishra stated that it was certain that the deceased did not die due to drowning in water. He stated that after killing the deceased, dead-body was thrown in the water. However, he expressed the probability that the deceased may have died due to throttling. However, he admitted that there was no injury or swelling on the neck. Under such circumstances, it is not proved beyond reasonable doubt that the deceased met with homicidal death. 9. As discussed above, in this case, the prosecution failed to establish the circumstances from which the conclusion of guilt could be drawn. We do not find such chain of evidence which leads to the irresistible conclusion that the appellant killed the deceased. 10. The appellant Shakurkhan was arrested on 6.4.93. It has come in the evidence of the Investigating Officer M.L. Karare (PW 10) and Indersingh (PW 7) that Shakurkhan gave information that he had concealed the wrist watch of the deceased below Babul tree and thereafter he dug the soil and took out the watch article A and produced it before the Investigating Officer who seized it vide seizure memo Ex. P. 15 and it has also come in the evidence of Sarpanch Purshottam (PW 6) that Sushilabai (PW 1) identified the wrist watch Article A but admittedly Sushilabai (PW 4), Bapu Gir (PW 2) and Kailash Gir (PW 3) did not state that the deceased when proceeded to attend the Court at Shajapur, was wearing this wrist-watch, Art. A. It has come in the evidence that empty bottle of country liquor, was seized from the well had finger prints, but the report of finger print expert has not been filed nor he has been examined. Under such circumstances, only on the basis of recovery of the wrist watch, Art. A, it cannot be held that the appellant Shakurkhan committed murder of the deceased. 11. In the result, the appeal is allowed and conviction and sentence imposed on the appellants are set aside. The appellants be released forthwith if not required in any other case. Fine, if paid, be returned to the appellants.