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2003 DIGILAW 150 (MP)

State of M. P. v. Dashrath Prasad

2003-01-23

BHAWANI SINGH, S.L.JAIN

body2003
JUDGMENT Singh, C..J. -- 1. This appeal is directed against acquittal of accused for offence under section 302/34 Indian Penal Code by order dated August 28, 1989 in Sessions Trial No. 79 of 1987 by Additional Sessions Judge, Umaria. 2. Briefly, prosecution version is that accused Rishiram is brother of Mst. Gayabai and brother-in-law of Dashrath Prasad. He belongs to village Maudaha (Satna) to which complainant party belongs. Deceased Raj Kumar alias Pappu is relation of Amritlal. Gupta (PW 1) and Chhedilal (PW 3). Brother of Rishiram contested Panchayat election in which Badri Prasad was defeated. Stocks were burnt and stones pelted at his house. and Badri Prasad threatened breaking of their heads. According to the prosecution, this was the motive for the accused to poison the deceased. On 21.9.1986, deceased Ram Naresh Pathak and other students had gone to Beohari for submission of examination forms. For the night, he stayed at Beohari with Mahendra Prasad Gupta. On23.9.1986, when he was returning home along with some students, he carne across Rishiram who requested him for filling his form also. Accordingly, deceased stayed at Beohari with Rishiram. Thereafter on 24.9.1986, they went to Damoi Railway Station after depositing the form. There they met Ganesh Prasad (PW 6). Thereafter, both of them came to the house of accused Dashrath Prasad since they could not get transport for the village of Rishiram. During the night of occurrence, deceased, Dashrath Prasad - and Rishiram took their meals together, prepared and served by Mst. Gayabai. For the night, Dashrath Prasad and Rishiram slept on one charpai and the deceased on the other. At about 2.30 a.m., sound of loud gurgling (Gadgadahat) was noticed from the throat of the deceased. Dashrath Prasad got up and thought that the deceased was dreaming. He called the deceased and asked whether he was feeling scared; Thereafter, the sound stopped whereupon Dashrath Prasad thought that the deceased may be sleeping. In the morning, Dashrath Prasad, after answering call of nature, awoke Rishiram and started awaking the deceased but he did not awake. He was found dead. A number of persons from the village collected and saw the dead body of the deceased. Rishiram went to village Maudaha with Udaibhan to inform the family members of the deceased about his demise and cal1 them to village Damoi. 3. Incident was reported at Police Station located at 7 kms. He was found dead. A number of persons from the village collected and saw the dead body of the deceased. Rishiram went to village Maudaha with Udaibhan to inform the family members of the deceased about his demise and cal1 them to village Damoi. 3. Incident was reported at Police Station located at 7 kms. away by Dashrath Prasad on 25.9.1986 at 9.00 a.m., whereupon Station House Officer Amarjit Singh (PW 8) recorded morgue report and went to the spot for preparation of map, recording of statements and preparation of inquest. Nails and palm of the deceased were found bluish. The dead body was taken for autopsy to Primary Health Centre, Manpur through Constable Shivkaran Singh. Dr. M.D. Shukla (PW 13) conducted post-mortem examination of the dead body. He noticed absence of ligature marks. Through nose and mouth, froth mixed with blood was coming. Eyes and mouth were found shut while tongue protruding. He did not find any external injuries, body was healthy. In the wind pipe, there existed froth and blood while right ventricle was filled with blood, left empty. In the stomach. there existed some digested food, etc. Viscera was taken for examination by Forensic Science Laboratory, Sagar, sent through Police. Dr. M.D. Shukla could not point out definitely the cause of death though it is stated that death was caused between 22-48 hours. Report from Chemical Examiner was given to Dr. M.D. Shukla. After examining the same, he opined that the cause of death was consumption of ethyl alcohol without any break found to the extent of 136 m.g.. On completion of investigation, challan was filed before the committing Magistrate who committed the accused for trial to the Sessions Court. Accused denied commission' of offence, therefore, trial proceeded. 4. The trial Court examined the question whether the death of the' deceased was homocidal caused by the accused as a result of common intention and if so, what offence has been committed by the accused and to what punishment they are liable. There is no eye-witness to the occurrence. Therefore, prosecution case hinges on circumstantial evidence. What is circumstantial evidence has, by now, been considered by Apex Court and High Courts in number of cases. There is no eye-witness to the occurrence. Therefore, prosecution case hinges on circumstantial evidence. What is circumstantial evidence has, by now, been considered by Apex Court and High Courts in number of cases. It is worthwhile to refer to fol1owing decisions : (i) In AIR 1990 SC 79 Padala Veera Reddy v. State of Andhra Pradesh and others, S. Ratnavel Pandian, J., has said in para 10 that (at p. 81) : "10. Before adverting to the arguments advanced by the learned counsel, we shal1 at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established: (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances. taken cumulatively. should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else: and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence [See Gambhir v. State of Maharashtra, (1982) 2 SCC 351 = AIR 1982 SC 1157 ]. See also Rama Nand v. State of Himachal Pradesh, (1981) 1 SCC 511 = AIR 1981 SC 738, Prem Thakur v. State of Punjab, (1982) 3 SCC 462 = AIR 1983 SC 61 , Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330 = AIR 1983 SC 446 , Gian Singh v. State of Punjab, 1986 Suppl. SCC 676 = AIR 1987 SC 1921 , Balvinder Singh v. State of Punjab, (1987) 1 SCC 1 = AIR 1987 SC 350 . SCC 676 = AIR 1987 SC 1921 , Balvinder Singh v. State of Punjab, (1987) 1 SCC 1 = AIR 1987 SC 350 . (ii) In AIR 1990 SC 2140 , Kishore Chand v. State of Himachal Pradesh, the Court said (at p. 2144): "In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances' should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of the hypothesis. 5. In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is nodirect witness to the commission of murder and the case rests entirely on circumstantial evidence. the circumstances relied on must be fully established The chain of events furnished by the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of the continuity of the circumstances is broken, the accused is entitled to the benefit of doubt. 6. In assessing the evidence to find these principles, it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them, on the other. 6. In assessing the evidence to find these principles, it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them, on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of doctrine of benefit of doubt. The Court has to consider the evidence and decide whether the evidence proves a particular fact or not. Whether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem, the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt. There is a long distance between may be true and must be true. The prosecution has to travel all the way to establish fully all the chain of events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclusive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. In other words, there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all probability the act must have been done by the accused and the accused alone." (iii) In AIR 1984 SC 1622 , Sharad Birdhichand Sarda v. State of Maharashtra, the following principles were enunciated: "152. 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, It may be noted here that this Court indicated that the circumstances concerned must or should and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra (1973) 2 SCC 793 : ( AIR 1973 SC 2622 ) where the following observations were made: 'Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between may be and 'must be' is long and divides vague conjectures from sure conclusions. (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 accused is guilty, (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." (iv) In AIR 1983 SC 61 , Prem Thakur v. State of Punjab, Chief Justice Y.V. Chandrachud, speaking for the Court, observed in para 11 as under: "11. The High Court could not but be aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say, the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt." (v) Again in AIR 1987 S.C 1507 , Kansa Behara v. State of Orissa, it was observed as under in para 12 of the judgment: "... It is a settled rule of circumstantial evidence that each one of the circumstances has to be established beyond doubt and all the circumstances put together must lead to the only one inference and that is of the guilt of the accused...." Prosecution examined fourteen witnesses to prove the case against. the accused. Apart from explaining the incriminating evidence against them, the accused have examined three witnesses in their defence. the accused. Apart from explaining the incriminating evidence against them, the accused have examined three witnesses in their defence. However, the trial ended in the acquittal of the accused by impugned judgment which has been challenged by the State through this appeal. 5. Therefore, question for consideration is whether the trial Court has ordered the acquittal of the accused on evidence recorded in the case and whether there is evidence justifying the claim of learned counsel for the State that the prosecution has succeeded in proving the guilt against the accused beyond a reasonable doubt. With a view to examine these questions, we turn to different circumstances relied by the prosecution in its favour, that the accused had motive to kill the deceased since enmity existed between the family of Rishiram and the family of the deceased with regard to Panchayat elections. Both Rishiram and the deceased were found together from 23.9.1986 where after the deceased stayed with Dashrath Prasad till death. At the house of Dashrath Prasad, food was prepared and served by accused Mst. Gayabai to three persons including the deceased. For the night, accused Dashrath Prasad and Rishiram slept in the same room on one charpai, and the deceased slept on the other charpai. The deceased died during the night in the room at the house of Dashrath Prasad. Viscera examination revealed presence of 136 m.g. ethyl alcohol resulting in death and the accused had opportunity to administer the same. 6. The trial Court found that accused Rishiram was with the deceased as alleged and later with Dashrath Prasad and Mst. Gayabai. It is also found that the deceased took food with other two, prepared and served by Mst. Gayabai. It is also found that .they slept for the night in the room on one charpai with the deceased on the other charpai. It is also found that the deceased died during the night and viscera revealed presence of 136 m.g. ethyl alcohol which was sufficient to cause death. It is also found that the matter was reported at the Police Station by Dashrath Prasad. However, the acquittal is ordered on the ground that there is absence of motive for killing the deceased and the motive set up by the prosecution was neither proved nor dependable. It is also found that the matter was reported at the Police Station by Dashrath Prasad. However, the acquittal is ordered on the ground that there is absence of motive for killing the deceased and the motive set up by the prosecution was neither proved nor dependable. The incident on which the same is based was far-fetched and could not be a reason to finish the deceased, more so when it was a trifle and had taken place long back. Further, the conduct displayed by Rishiram in going to inform the parents of the deceased about his death coupled with the fact of Dashrath Prasad going to report the matter to the Police Station and during the night calling Dan Bahadur to treat the deceased of evil spirits and giving him medicines demonstrate that he had no motive to conceal anything and indicate animosity against the deceased. Further, another reason recorded by the trial Court to form opinion on motive is that there existed friendship between the deceased and accused Rishiram. They were together at the house of Mahendra Kumar (PW 7) for the night, took food there, postponed the journey to help Rishiram by filling and submitting the examination form. They both belong to the same village, therefore, in case Rishiram entertained any animosity against the deceased, he had occasions to eliminate him at any time/stage in the past. At the house of the accused, no container was found -nor there is evidence of struggle in case they intended to administer poison to the deceased against his will. The bed was found absolutely straight and intact. 7. Statement of Amritlal Gupta (PW 1) has been contradicted by Chhedilal (PW 3). Amritlal Gupta states that Badri Prasad, brother of Rishiram contested election against Chhedilal Gupta and lost. This followed burning of stock of Badri Prasad and threatenings at his instance but Chhedilal Gupta has not named Badri Prasad with whom he contested the election nor he has said anything about the threatenings extended by Badri Prasad. Therefore, the prosecution version resting on motive is not proved. Similarly. house of Amritlal (PW 1) was closed by a relation of accused which could be opened by calling the Police from Maihar. This fact has not been proved by production of records from the Police Station. Therefore, the prosecution version resting on motive is not proved. Similarly. house of Amritlal (PW 1) was closed by a relation of accused which could be opened by calling the Police from Maihar. This fact has not been proved by production of records from the Police Station. with this background, the trial Court has come to the conclusion that the prosecution witnesses are interested, therefore. reliance cannot be placed on their testimony. 8. Turning to the question whether the deceased died of ethyl alcohol, the allegation that the deceased died due to administration of ethyl alcohol has not been established from the state of the body of the deceased and the statement of Dr. M.D. Shukla, nor there is evidence of procurement and presence of alcohol at the house of the accused. In addition, in normal course, consumption of alcohol to this extent is not fatal as per Modi's Medical Jurisprudence, recorded by the trial Court in paragraphs 22 and 23 of the judgment. In the aforesaid circumstances, the trial Court comes to the conclusion that the deceased died of administration of ethyl alcohol has not been proved beyond doubt. 9. We have given serious consideration to the appreciation of evidence and conclusions drawn by the trial Court in this case, with the assistance of Shri S.K. Gangrade, learned Public Prosecutor for the State. We have not been able to find any error in appreciation of evidence by the trial Court. There is no perversity and unreasonableness in the approach adopted by the trial Court in dealing with the matter. Before conclusions are drawn. evidence has been comprehensively discussed. The prosecution has failed to prove the case on circumstantial evidence. Therefore case for interfering in the matter is not made out. It is well settled that appellate Court should not interfere with the acquittal recorded by the trial Court unless it is grossly unreasonable, palpably wrong and perverse. (See Tara Singh v. State of V.P. AIR 1998 SC 674 , and Ram Kumar v. State of Haryana AIR 1995 SC 280 ). 10. Consequently, there is no merit in the appeal and the same is dismissed.