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2003 DIGILAW 2633 (ALL)

MANI RAM v. STATE OF U P

2003-11-11

KAMAL KISHORE, VISHNU SAHAI

body2003
VISHNU SAHAI, J. This appeal has been preferred by Mani Ram against the judgment and order dated 30-4-2001, passed by IV Additional Sessions Judge, Gonda, in Sessions Trial No. 100 of 1999, whereby he has been convicted and sentenced, in the manner, stated hereinafter: (i) Under Section 302 IPC to imprisonment for life and pay a fine of Rs. 10,000 and six months S. I. in default; and (ii) Under Section 376 IPC to 10 years R. I. and pay a fine of Rs. 5,000 and three months S. I. , in default. The sentences have been directed to run concurrently. 2. Shortly stated, the prosecution case runs as under: The informant Ganga Ram PW 1 was the brother-in-law of deceased Jagpata, Jagpata was the wife of informants brother Ayodhya. At the time of the incident, Ayodhya was working in Ludhiana and the informant and Jagpata were living in contiguous houses in village Nagwa with the limits of police station Wazirganj District Gonda. On 29-9-1997, before sun-rise, Jagpata had gone to sprinkle gamaxine powder or her paddy crop. Appellant, who was the cousin of the informant told her that he would do the said job and consequently, followed her. The informant and Basanti (daughter of Jagpata) saw the appellant going with Jagpata. When till the evening, she did not return, the informant inquired about her whereabouts from Basanti. When she failed to give him any clue, next morning, he started searching her and found her naked body in the field of Bandey Nai. Thereafter he got the FIR scribed by Dost Mohammad, who after scribing it, read it over to him. Thereafter, he affixed his thumb impression on it and lodged it at Police Station Wazirganj. 3. The FIR was lodged on 30-9-1997, at 1. 30 p. m. , by informant Ganga Ram at police station Wazirganj, which was situated at a distance of eleven kilometers from the place of the incident. A perusal of the FIR shows that facts mentioned in the preceding paragraph have been stated therein. On the basis of the FIR, a case under Section 302 IPC was registered against the appellant. 3-A. The autopsy on the corpse of the deceased Jagpata was conducted on 1-10-1997, at 4. 35 p. m. , by Dr. A perusal of the FIR shows that facts mentioned in the preceding paragraph have been stated therein. On the basis of the FIR, a case under Section 302 IPC was registered against the appellant. 3-A. The autopsy on the corpse of the deceased Jagpata was conducted on 1-10-1997, at 4. 35 p. m. , by Dr. Alok Kumar Agarwal PW 5, who found on it the following ante-mortem injuries: (i) Multiple contusions all over face & front of neck. (ii) Contusion 5 cm x 4 cm on back of left elbow. (iii) Contusion 3 cm x 21-1/2 cm on back of right elbow. (iv) Multiple abrasions in pubic area around vagina and on internal side of both the thighs. On internal examination, Dr. Agarwal found fracture of hyoid bone. The cause of death spelt out in the post-mortem report was asphyxia as a result of strangulation. It is pertinent to mention that in his statement in the trial Court, Dr. Agarwal reiterated the said cause of death and also stated therein that the ante-mortem injuries could have been suffered by the deceased on 29-9-1997 and she could have suffered them while rape was being committed on her. 4. The case was investigated in the usual manner by SI DP Singh and SI Tej Bahadur Singh PW 6. The investigation done by the former was proved by the letter as he had seen the former writing and signing and he was familiar with his writing and signatures. The former prepared the site-plan and seized the clothes of the deceased under a recovery memo. The latter recorded the statement of witnesses of inquest and on 18-12-1997, submitted the charge- sheet against the appellant. 5. The case was committed to the Court of Sessions in the usual manner where the appellant was charged for offences punishable under Sections 302 IPC and 376 IPC. He pleaded not guilty to the charges and claimed to be tried. His defence was of denial. During trial, in all, the prosecution examined six witnesses. We straightway mention that there is no eye- witness of the incident. The evidence adduced by the prosecution was circumstantial in nature; there being a solitary circumstance, namely, last seen. In respect of the said circumstance, two witnesses, namely, Ganga Ram and Basanti, the brother-in-law and daughter respectively of the deceased were examined. We straightway mention that there is no eye- witness of the incident. The evidence adduced by the prosecution was circumstantial in nature; there being a solitary circumstance, namely, last seen. In respect of the said circumstance, two witnesses, namely, Ganga Ram and Basanti, the brother-in-law and daughter respectively of the deceased were examined. The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant, in the manner, stated in paragraph-1. Hence this appeal. 6. We have heard learned counsel for the parties and perused the entire record and have no reservations in observing that this appeal deserves to succeed. 7. As mentioned earlier there is no eye-witness of the incident and the conviction of the appellant is founded on a solitary circumstance, namely, of his being last seen with the deceased. In respect of the circumstance, we have the evidence of two witnesses, namely, Ganga Ram PW 1 and Basanti PW 2 brother-in-law and daughter respectively of the deceased Jagpata. Their evidence shows that they lived in the immediate proximity of one another and the deceased lived with the latter. On 29-9-1997, a little before sun-rise, Jagpata had gone to sprinkle gamaxine powder on her paddy plants. They noticed that the appellant met her on the way and told her that he would do the said job. Thereafter he followed her towards the field. The evidence of Ayodhya shows that thereafter he went to work and in the evening when he returned home, he learnt that Jagpata was missing. He inquired from Basanti about her whereabouts, but she could give no clue. Next morning, while he was searching her he found her naked body in Bandeys field. He thereafter, lodged the FIR. 8. Learned counsel for appellant contended that even if it is accepted for arguments sake that Ganga Ram and Basanti on 29-9- 1997, a little before the sun-rise had seen Jagpata and the appellant going towards the field of the former, this circumstance of their being last seen together does not conclusively establish that it was the appellant who committed the murder of Jagpata. He urged that at the highest, it may show that the prosecution case that the appellant committed the murder of Jagpata, may be true, but this in his contention would not be sufficient for sustaining the conviction of the appellant. He urged that at the highest, it may show that the prosecution case that the appellant committed the murder of Jagpata, may be true, but this in his contention would not be sufficient for sustaining the conviction of the appellant. He invited our attention to paragraph-11 of the decision of the Supreme Court rendered in the case of Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637 , wherein the Supreme Court repelled the contention of the counsel for prosecution that considered as a whole the prosecution story may be true and held that between may be true and must be true there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence. Learned counsel for the appellant also invited our attention to paragraph-31 of the decision of the Apex Court rendered in the case of Arjun Marik and others v. State of Bihar, 1994 Supreme Court Cases (Cri) 1551, where in paragraph-31, the Supreme Court has held that the only circumstances of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on it alone can be founded. 9. Learned counsel for appellant urged that the evidence of Ganga Ram and Basanti shows that the appellant was last seen alongwith the deceased a little before the sun-rise, on 29-9-1997 and the corpse of the deceased was recovered next morning. He contended the deceased could have been murdered any time between a little before sun-rise on 29-9-1997 and the next morning. He urged that simplicitor because she was last seen alongwith the appellant would not be sufficient to uphold his conviction. 10. Learned counsel for appellant also contended that circumstantial evidence can only be the basis for conviction if: (a) The circumstance are firmly established; (b) They unerringly lead to the inference of the guilt of the accused; (c) They are wholly in consistent with the inference of innocence of the accused; and (d) They are incapable of being explained on any reasonable hypothesis excepting the guilt of the accused. Learned counsel for the appellant contended that if these norms are borne in mind, the conviction of the appellant cannot be sustained because on the basis of the solitary circumstance that the appellant and the deceased were seen together a little before sun-rise on 29-9-1997, it cannot be conclusively held that the appellant murdered the deceased. 11. We have given our anxious consideration to the submission convassed by the learned counsel for appellant and in our view, on the solitary circumstance that the appellant was last seen alongwith the deceased a little before the sun-rise on the morning of 29-9-1997 and the corpse of the deceased was recovered next morning, he cannot be convicted. At the highest the said circumstance, may create a strong suspicion against the appellant or may show that the prosecution case may true, but as observed by the Apex Court in Sarwan Singhs case (supra) before a conviction can be recorded, the prosecution has to establish that its case must be true and not merely that it may be true. 12. We feel it pertinent to mention that we have not examined this solitary circumstance thread bare because in our view even if it is accepted the conviction of the appellant could not have been recorded on its basis for offences punishable under Sections 302 IPC and 376 IPC. 13. In the result the appeal is allowed. The convictions and sentences of the appellant Mani Ram for offences punishable under Sections 302 IPC and 376 IPC are set-aside. He is acquitted thereunder. The appellant, who is in jail, is directed to be released forthwith unless wanted in some other case. Appeal allowed. .