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2002 DIGILAW 969 (RAJ)

Chunia v. State of Rajasthan

2002-05-10

D.N.JOSHI, N.N.MATHUR

body2002
JUDGMENT 1. The instant criminal jail appeal has been filed against the judgment of the learned Additional District and Sessions Judge, Rajsamand dated 30.11.1981 in Sessions Case No. 20/81, whereby the accused Chunia and Smt. Amri were convicted and sentenced as follows: (1) Chunia : u/s 302- Life imprisonment and a fine of Rs. 100/- & in default of payment, one month's R.I. u/s 201- Rigorous imprisonment for one year and a fine of Rs. 100/- in default of payment, one months' rigorous imprisonment. Both the sentences were ordered to run concurrently. (2) Amri : u/s 201- Rigorous imprisonment for 9 months and a' fine of Rs. 100/- and in default of payment, one month's rigorous imprisonment. 2. We have herd Mr. Manish Shishodia, learned counsel for the appellant and Mr. Gopi Kishan Vyas, learned Public Prosecutor. 3. It was argued by the learned counsel for the appellant that the incriminating circumstances available against the accused have not been proved beyond doubt. The learned trial Court itself has dis-believed the evidence of the accused being last been with the deceased Mst. Bhoori. It was further argued that the recovery of ornaments cannot be believed to base conviction as the ornaments have not been recovered in the original shape and converted into "Dhalis" have been recovered. No identification parade could be arranged to connect the accused with the recovery of ornaments belonging to the deceased. The circumstance of the recovery of the dead body relied by the trial Court has also not been proved beyond doubt. Therefore, the appeal may be accepted and the conviction and sentence passed against the appellant may be set aside. 4. The learned Public Prosecutor has supported the judgment of the learned trial Court. 5. The brief facts of the case are that on 19th February, 1981, P.W. 4 Chatru, son of the deceased Mst. Bhoori submitted a report Ex.P/20 before the SHO, Police Station, Diver. On the basis of this report, P.W. 14 Bhopal Singh registered the FIR Ex. P/21. It was alleged in the report that P.W. 8 Bhanwaria (son of the accused) came to the house of P.W. 4 Chatru for calling his mother (now deceased) and his mother went with him. She was aged about 75 years. At that time, she was wearing 'Ghaghra' and 'Odhna' and she was also wearing 'Kariyas' on the legs and 'Hansli' on the neck. She was aged about 75 years. At that time, she was wearing 'Ghaghra' and 'Odhna' and she was also wearing 'Kariyas' on the legs and 'Hansli' on the neck. P.W. 4 Chatru has stated that her mother was not available for the last one month, even by a search had been made in this behalf. The accused has denied coming of Mst. Bhoori to later's house when asked by P.W. 4 Chatru. 6. P.W. 14 Bhopal Singh started investigation. The accused were arrested, recoveries of 'dhalis' of. ornaments, Halwani and the dead body of the deceased Mst. Bhoori Bai were being made at the instance of the accused-persons. After post-mortem and usual investigation, charge-sheet was submitted in the Court of the concerned Magistrate, who in its turn, committed the accused to face trial for the above charges. On 12th May, 1981 the amended charges were read over and explained to the accused. Accused Chunia denied the charge of committing murder of Mst Bhoori throttling her and concealing the dead body in the tank of Jiran. 7. To prove the charges, the prosecution examined 15 witnesses. The statement of the accused persons under Section 313 Cr.PC. were recorded. They did not produce any evidence in defence. After bearing the arguments on either side, the learned trial Court convicted and sentenced the accused persons as stated above.There is no eye-witness of the occurrence and the conviction of the accused-appellant has been based on the circumstantial evidence. A perusal of the judgment of the learned trial Court shows that the following incriminating circumstantial evidences have been found proved against the accused so as to holding him guilty of the charges: (1) The recovery of Karla (in shape of Dhali) belonging to the deceased on the information given by the accused, which the deceased was wearing at the time when she was last seen with P.W. 8-Bhanwaria. (2) The recovery of Hansali (in the shape of Dhali) belonging to the deceased on the information given by the accused, which the deceased was wearing at the time when she was last seen with P.W. 8-Bhanwaria. (3) The recovery of Halwani, alleged to have been used for removing Karia from the body of the deceased was made on the information given by the accused. (4) Recovery of dead body of the deceased on the information given by the accused. (3) The recovery of Halwani, alleged to have been used for removing Karia from the body of the deceased was made on the information given by the accused. (4) Recovery of dead body of the deceased on the information given by the accused. (5) Re-payment of the loan by the accused during the relevant period. (6) Recovery of pieces of burnt clothes of the deceased. 8. Before discussing the case on merits, we would like to cite few decisions on the nature, character and the essential proof required in a criminal case, which rests on circumstantial evidence alone. The most fundamental and basic decision of the Hon'ble Apex Court is given in Hanumant v. State of M.P. reported in AIR 1952 SC 343 . This case has been unanimously followed and applied by the Hon'ble Apex Court in a large number of latters' decisions i.e. the cases of Tufal v. State of M.P., ((1979) 3 SCC p.198) and Ramgopal v. State of Maharashtra, (AIR 1972 SC p.656) . "It was held in Hanumant's case (supra) at page 345 and 346 as follows: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the 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 conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In spite of the forceful arguments addressed to us by the learned Advocate General on behalf of the State we have not been able to discover any such evidence either intrinsic within Ex.P/3A or outside and we are constrained to observe that the Courts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned case." A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other, hypothesis except that the guilt of accused. (3) the circumstances should be of a 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 five golden principles- were described as the panchsheel of the proof of a case based on circumstantial evidence.It has been held in State of Tamil Nadu v. Rajendran , reported in 1999 AIR SCW p. 3536 as under: "Coming now to the second question, the law is fairly well settled that in a case of circumstantial evidence, the cumulative effect of all the circumstances proved must be such as to negative the innocence of the accused and to bring home the charge beyond reasonable doubt. It has been held by a serious of decisions of this Court that the circumstances proved must lead to no other inference except that of guilt of accused. See Ram Avtar v. State (Delhi Administration), 1985 Supp. SCC 410 : ( AIR 1985 SC 1692 : 1985 Cri. It has been held by a serious of decisions of this Court that the circumstances proved must lead to no other inference except that of guilt of accused. See Ram Avtar v. State (Delhi Administration), 1985 Supp. SCC 410 : ( AIR 1985 SC 1692 : 1985 Cri. LJ (1865) and Prem Thakur v. State of Punjab, (1982) 3 SCC 462 : ( AIR 1983 SC 61 : 1983 Cri.LJ 155) . The law relating to circumstantial evidence no longer remains res Integra and we do not think it necessary to multiply authorities on this point." 9. Thus, in a case based on circumstantial evidence, the circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. The circumstances must be of such a nature and should form a complete chain as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction.It is relevant that the circumstance of the last seen of the deceased with the accused has not been relied and rightly held by the trial Court and therefore, need not be dealt into the merits of the circumstance. 10. Now, it is to be seen whether the circumstances relied by the trial Court for basing the conviction have been proved beyond reasonable doubt against the accused- appellant.(1) RECOVERY OF KARIA One of the circumstances relied upon by the prosecution against the accused is recovery of Karia. The evidence of P.W. 9 Jagdish, P.W. 10 Ogharji, P.W. 14 Bhopal Singh, and P.W. 15, Balkrishana is relevant in this regard. P.W. 14 Bhopal Singh has stated that he recovered a "Dhali" from P.W. 9 Jagdish and another form P.W. 10 Ogharji on the informations of the accused. These informations are Ex. P/23 and Ex. P/24. The recoveries were made vide Ex. P/11 and Ex. P/12 from Jagdish and Ogharji respectively. P.W. 14 Bhopal Singh and P.W. 15 Balkrishan has stated about the information given by the accused. It is pertinent to mention that the "Karias" have not been recovered in their original shape, but their "Dhalis" have been recovered. P/23 and Ex. P/24. The recoveries were made vide Ex. P/11 and Ex. P/12 from Jagdish and Ogharji respectively. P.W. 14 Bhopal Singh and P.W. 15 Balkrishan has stated about the information given by the accused. It is pertinent to mention that the "Karias" have not been recovered in their original shape, but their "Dhalis" have been recovered. There is no description of "Karias" in the report Ex.P/20 submitted by P.W. 4 Chatru at the Police Station. Therefore, from the evidence of P.W. 9 Jagdish, P.W. 10 Ogharji, P.W. 14 Bhopal Singh and P.W. 15 Balkrishan, the accused cannot be connected with the alleged recovery of ornaments and consequently with the offence. Even though, the "Karias" were of common use and could be identified in the Court for the first time without prior identification proceedings but, as stated earlier, "Karias" has not been recovered in their original shape. Therefore, the circumstances of 'recovery of Karias, one from Jagdish and another from Ogharji have not been proved beyond reasonable doubt by the prosecution. Its identity has also not been proved and therefore, the so called recovered of Dhalis of Karias do not and cannot connect the accused with the commission of the crime. (2) RECOVERY OF HANSALI The next circumstances available against the accused is recovery of "Hansali" on the information furnished by the accused. In this regard P.W. 14 Bhopal Singh has stated that the accused gave him a information Ex. P/25 under Section 27 of the Evidence Act and thereby got recovered "Dhali" (of Hansali) vide Ex. P/10. P.W. 2 Narayan has been produced to support the evidenced of this witness, but in view of the discussion made by the Court with regard to the recovery of "Karias", the evidence of recovery of "Hansali" does not help to the prosecution and is liable to be rejected on the reasons stated far from which the recovery of "Karias" has not been relied. "Hansali" was not recovered in its original shape and its identify has not been proved. It cannot be said that the "Dhali" was made of "Hansli". Therefore, the circumstances of recovery of "Dhali" of Hansli does not and cannot in any manner connect the accused with the commission of the crime. (3) RECOVERY OF HALWANI P.W. 15 Balkrishna has stated that the accused furnished information Ex.P/27 and thereby got recovered "Halwani" vide Ex.P15. It cannot be said that the "Dhali" was made of "Hansli". Therefore, the circumstances of recovery of "Dhali" of Hansli does not and cannot in any manner connect the accused with the commission of the crime. (3) RECOVERY OF HALWANI P.W. 15 Balkrishna has stated that the accused furnished information Ex.P/27 and thereby got recovered "Halwani" vide Ex.P15. P.W. 5 Raimal, motbir of recovery of Halwani has stated that Halwani was not recovered in his presence, but the police has seized it while lying on the other door of the accused. Raimal has been declared hostile by the prosecution. P.W. 6 Pratapchand has stated that "Halwani" (Article P/3) was recovered vide Ex.P/15. P.W. 15 Balkrishan has' not stated that "Halwani" was sealed at the spot. He has also not stated whether the blood-stains were found on it or not. There is a contradiction in the statements of P.W. 5 Raimal and P.W. 15 Balkrishan regarding the place of recovery of Halwani. As per statement of P.W. 5 Raimal, Halwani was recovered at the door of the accused while as per the statement of P.W. 15 Balkrishan, it was recovered from the house of the accused. It has not been proved by the evidence of the prosecution the place from which the Halwani was recovered, was in exclusive and conscious possession of the accused. Therefore, considering all the facts and circumstances of the case, in the considered opinion of the Court, the recovery of Halwani does not help the prosecution in any manner and this circumstance is not available to it for basing the conviction of the accused. (4) RECOVERY OF BURNT CLOTHES The evidence regarding the pieces of burnt clothes consist of the statements of P.W. 4 Chatru, P.W. 6 Pratap Chand, PW. 14 Bhopal Singh and P.W. 15 Balkrishan. P.W. 5 Raimal has turned hostile to the prosecution. He has stated that the police has recovered burnt pieces of clothes vide Ex.P/16,. which bears his signature. The clothes were lying near the hut of the accused. P.W. 6 Pratapchand has stated that some pieces of burnt clothes were recovered vide Ex.P/16, which is Article 6. P.W. 14 Bhopal Singh has stated that the accused got recovered the remnant of the burnt clothes vide Ex.P/16. P.W. 15 Balkrishan has stated that the accused furnished information Ex.P/28 and got recovered burnt pieces of clothes vide Ex.P/16. P.W. 6 Pratapchand has stated that some pieces of burnt clothes were recovered vide Ex.P/16, which is Article 6. P.W. 14 Bhopal Singh has stated that the accused got recovered the remnant of the burnt clothes vide Ex.P/16. P.W. 15 Balkrishan has stated that the accused furnished information Ex.P/28 and got recovered burnt pieces of clothes vide Ex.P/16. None of the witnesses cited above stated whether the recovered pieces of burnt clothes were sealed at the spot or not? Whether they were identifiable or not? But, to the contrary, P.W. 15 Balkrishan has categorically admitted in his cross-examination that the pieces of burnt clothes could not be matched with the original clothes and therefore, he did not get them identified during investigation. In this view of the matter, the recovery of burnt pieces of clothes also does not help to prosecution for proving the charge against the accused-appellant. RECOVERY OF DEAD BODY, ITS IDENTIFICATION AND CAUSE OF DEATH: The learned trial Court on admission of the counsel for the accused has held that the cause of death of Mst. Bhoori was throttling. In this regard, Ex.P/6 Post Mortem Report is relevant. As per Ex.P/6, though there was no fracture on right lower end of Tibia and fibula, but there was no injury on thorax part of the body and there was sign of throttling. The body was in a decomposition set in. Therefore, it was not possible for the witnesses to identify the dead body. As per Ex.P/6, the body was in a purified condition and the features were unrecognisable. Under Section 294 Cr.PC., there is a provision that where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceedings under this Code, without proof of the signature of the person by whom it purports to be signed; provided that the Court may in its discretion require such signature to be proved. The post mortem examination is a material document and evidence in a case of murder. No admission by the counsel can relieve prosecution of the duty of satisfying the Court by proper evidence. Admission by counsel on behalf of the accused with respect to a fact is inadmissible. The post mortem examination is a material document and evidence in a case of murder. No admission by the counsel can relieve prosecution of the duty of satisfying the Court by proper evidence. Admission by counsel on behalf of the accused with respect to a fact is inadmissible. As per provisions of the Code of Criminal Procedure, the learned counsel for the accused has not admitted the genuineness of the Post Mortem report and the learned counsel in the trial Court has specifically raised argument that the evidence of the prosecution is not clear as to post mortem report is of deceased Mst. Bhooribai. As per Ex.P/1 Panchnama also, the dead body was in a purified condition. Therefore, the trial Court was not right in holding that the cause of death of Mst. Bhoori Bai has been proved by the prosecution. We have perused the statements of P.W. 4 Chatru, P.W. 6 Pratapchand and P.W. 15 Balkrishan in this regard. P.W. 5 Raimal has turned hostile to the prosecution and he has stated in his cross-examination that " vfHk;qDr us esjs lkeus rkykc esa fdl LFkku ij gSa] dqN ugha crk;kA " Similarly, P.W. 15 Balkrishan has stated in his cross-examination that the dead body was not found at the place which was pointed out by the accused. He has further stated that the accused was not able to point out the correct place in a correct manner. In his cross- examination, he has stated that the accused did not know the pin-point of the dead body and it was found in putrified condition. Balkrishan has stated that the information was given on 19.2.1981 for getting the dead body recovered, but despite detailed search, nothing could be recovered and Ex.P/13 was prepared in this regard. As per statement of P.W. 15 Balkrishan, the dead body of Mst. Bhoori was recovered on the next day from the same tank vide recovery memo Ex.P/1 7. P.W. 6 Pratapchand has stated that the search was made in Jiran tank at the instance of P.W. 4 Chatru, but the dead body was not recovered and Ex.P/13 was prepared. On the next day also the search was made at the instance of Chatru and that time, the accused Chunia was present in custody of the police and he pointed the place of the tank, where the dead body was thrown. On the next day also the search was made at the instance of Chatru and that time, the accused Chunia was present in custody of the police and he pointed the place of the tank, where the dead body was thrown. The statement of P.W. 6 Pratapchand is contradictory in material particulars with the statement of P.W. 15 Bhopal Singh, who has stated that the search was made at the instance of the accused and nothing was recovered and Ex.P/13 was prepared. On the next day also, as per statement of Pratapchand, the search was made at the instance of Chatru, but as per statement of P.W. 15 Bhopal Singh, it was made at the instance of the accused. It is clear, whether second information given under Section 27 of the Evidence Act was recorded or not? P.W. 4 Chatru has stated that the search was made in the tank for two days and the dead body was recovered on the next day from the place pointed out by the accused. He has also stated that the police had beaten him and the dead body was not in putrified condition. In the opinion of the Court, the statement of this witness cannot be relied in view of the Panchnama Ex.P/1 and the Post Mortem Report Ex.P/6. For the sake of argument, if reliance is placed on the statement of this witness, then it cannot be said that the information by the accused was furnished voluntarily. Therefore, in the facts and circumstances of the case, the recovery of the dead body of Mst. Bhoori, that too in a putrefied and in identifiable condition, cannot be relied and convicted the accused for proving the charges levelled. There is also a gap of more than 24 hours between the information so given u/s 27 of the Evidence Act and the recovery of the dead body, which creates a reasonable doubt in the mind of the Court. There is also a gap of one month between Bhoori going with P.W. 8 Bhanwaria and recovery of her dead body. Section 27 of the Evidence Act is in the nature of an exception to the preceding sections, particularly, Section 25 and 26 of the Evidence Act. There is also a gap of one month between Bhoori going with P.W. 8 Bhanwaria and recovery of her dead body. Section 27 of the Evidence Act is in the nature of an exception to the preceding sections, particularly, Section 25 and 26 of the Evidence Act. The first condition necessary for bringing this section into operation is the discovery of fact, albiet a relevant fact in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of receipt of the information, the accused must be in police custody. The information must be voluntarily made and true. The last, but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered, is admissible. The rest of the information has to be excluded the word "distinctly" means "directly" "indebeatebly" "strictly" and "unmistakably". Keeping in view this proposition of law, the so called information cannot be called to be voluntarily and further it cannot be said that the dead body was recovered at the instance of the accused. It cannot also be said that the accused was having the knowledge about the place of the tank from where the dead body was recovered on the next day of his giving information. As stated earlier, the accused was not even able to point the place, where the dead body was recovered. In these circumstances, the trial court was not right in placing reliance on the circumstance to convict the accused-appellant. (6) DEPOSITING OF MONEY In this respect the evidence of P.W. 12 Heera and P.W. 13 Amra is relevant. PW 12 Heera has stated that 2-3 days after the death of the mother of Chatru, the accused came to him and had given Rs. 500/-. Out of that he purchased grain for Rs. 200/- and remaining Rs. 300/- were kept with him as a deposit. Heera has further stated that when he asked about the money, the accused replied that he has received the same from his brother in law, to whom he had made advance. P.W. 13 Amra has stated that the accused returned Rs. 300/- to him. By no stretch of imagination, the accused can be actus with the commission of the crime from the statements of these two witnesses. P.W. 13 Amra has stated that the accused returned Rs. 300/- to him. By no stretch of imagination, the accused can be actus with the commission of the crime from the statements of these two witnesses. Therefore, the trial Court has wrongly relied upon this circumstances convicting the accused for the charges levelled against him. 11. Thus, in our opinion, in the instant case, circumstantial evidence is not so complete in all respect to hold the appellant guilty. There may be strong suspicion of commission of an offence against the accused, but suspicion however strong, cannot take place of legal, unimpeachable and reliable evidence. The prosecution has miserably failed to prove the charges levelled against the accused beyond reasonable doubt. 12. Consequently, the appeal of the appellant is liable to be, accepted and is hereby accepted. The conviction and sentences passed against the appellant under Section 302 and 201 IPC is hereby set aside and he is acquitted of the said offence. The accused is on bail. His bail bonds stand discharged.Appeal allowed - Conviction set aside. *******