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2008 DIGILAW 339 (CHH)

MANGAL SINGH v. STATE OF M. P. (NOW CG. )

2008-11-21

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2008
JUDGMENT Hon'ble Shri Sunil Kumar Sinha, J. :- 1. Appellant Mangal Singh stands convicted u/ss 302 & 201 I.P.C. and sentenced to W1dergo rigorous imprisonment for life & fine of Rs.500/- and rigorous imprisonment for 1 year & fine of Rs.250/- with default sentences by the Additional Sessions Judge, Sakti, District Bilaspur in Sessions Trial No. 463/96 on 25.7.1997. 2. The deceased namely Jyoti Bai was the wife of the appellant. Both were workers in Saroja Circus which was camping in village Birra near Jaijaipur police station. On 4.10.96, at about 12 in the Noon, some quarrel took place between the appellant and the deceased on account of bath of their child, on which, the deceased left the camp and went somewhere. When she was searched by the appellant along with one Teras, they found that she was sitting near a well. On the next day, the dead body of the deceased was found in the well. 3. A merg intimation (Ex.-P/13) was lodged by the appellant in police station Jaijaipur. The Investigating Officer, reached to the place of occurrence, gave notice (Ex.-P/6) to the Panchas and prepared inquest (EX.-P/7) on the body of the deceased. The dead body of the deceased was sent for its postmortem to P.H.C, Jaijaipur, where the postmortem examination was conducted by a team of two Doctors namely Dr. (Mrs) S. Kachcha (PW-9) and Dr. J.C. Meshram, who prepared their report EX.-P/9. They noticed that the froth was coming out of nostrils; nails were bluish; trachea was highly congested and lungs were reddish. In further examination, they found that the hyoid bone of the deceased was fractured and the injury sustained was antemortem in nature. They opined that the cause of death was asphyxia which may have resulted from strangulation and it was homicidal in nature. They also preserved viscera and suggested for their further examination. 4. In further investigation after taking the accused/appellant into custody, his memorandum (Ex.-P/1) U/S 27 of the Evidence Act was recorded on 17.10.96 leading to discovery of the slippers of the deceased, in pursuance of which, a pair of old slippers were seized at the instance of the appellant from a paddy field near the well under EX.-P/2. Site plan was prepared under Ex.-P/11, viscera preserved for further examination was seized under EX.-P/16. Site plan was prepared under Ex.-P/11, viscera preserved for further examination was seized under EX.-P/16. The seized articles, including viscera, were sent for their chemical examination to Forensic Science Laboratory, Sagar (M.P.) under EX.-P/17, but examination report of the viscera could not be obtained on account of huge pendency of viscera cases in the E.S.L., Sagar, which was informed to the concerned police authority under EX.-P/23. Based on the investigation of merg, a First Information Report (Ex.-P/21) was registered against the appellant. 5. After completion of usual investigation, a charge-sheet was tiled in the Court of Judicial Magistrate First Class, Sakti on the allegations that the appellant has murdered the deceased by strangulation and thereafter threw her dead body in the well thereby causing disappearance of evidence of offence of murder and given false information to the police to screen the offence. 6. The Magistrate, in turn, committed the matter to the Court of Sessions Judge, Bilaspur, from where, it was received on transfer by the Additional Sessions Judge, Sakti, who conducted the trial and convicted and sentenced the accused! appellant as aforementioned. 7. Admittedly, there are no eye witnesses in this case and the conviction of the appellant is based on circumstantial evidence. The main circumstances, which the trial Court appears to have considered are: (i) On account of certain quarrel between the husband and the wife, the wife left the camp of circus and went towards the well & (ii) The appellant gave a discovery memo U/S 27 of the Evidence Act leading to discovery of slippers of his wife, in which he also made statement about killing of his wife. 8. A perusal of the impugned judgment would show that the learned Sessions Judge has treated the introductory part of the memorandum of the appellant, in which he made statement about killing of his wife, as his confession and has taken it as main circumstance against him along with the circumstances of seizure of slippers and that of previous quarrel between the husband and wife. 9. We are surprised to see such view taken by the learned Sessions Judge. 9. We are surprised to see such view taken by the learned Sessions Judge. The essential ingredients of Section 27 is that the information given by accused may lead to discovery of the fact which is direct outcome of such information and only the portion of the information given, which is distinctly connected with the discovery of the fact, can be received in evidence and that the discovery of the fact must relate to the commission of the offence. The condition necessary to bring Section 27 into operation is that the discovery of a fact in a consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. For the application of Section 27, the statement must be split into its components to separate the admissible portion. Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected. Therefore, a confession made by an accused while he is in custody must be excluded from evidence leaving the discovery part as same would not be admissible in the evidence u/s 27 of the Evidence Act. In our considered view, the learned Sessions Judge erred in law in resting the conviction on so called admission/confession made by the appellant while recording his discovery memo u/s 27 of the Evidence Act and the above fact cannot be an incriminating circumstance against the appellant. 10. So far as the circumstance of seizure of the slippers from a paddy field I at the instance of the appellant is concerned, the same is of no use to the prosecution. Firstly because the seizure was made from an open place and secondly it was not I established by the prosecution that the said slippers were that of the deceased. 11. We do not take the circumstance of quarrel between the husband and the wife as an incriminating circumstance because it's the case of the prosecution itself that most oftenly they used to quarrel on petty matters and the wife used to leave the company of the husband for sometime. 11. We do not take the circumstance of quarrel between the husband and the wife as an incriminating circumstance because it's the case of the prosecution itself that most oftenly they used to quarrel on petty matters and the wife used to leave the company of the husband for sometime. This time also, she left the company of the husband on account of dispute relating to bath of the child and in search, the appellant saw that she was sitting near the well in the village. How it can be incriminating against the appellant. 12. In Hanumanf Govind Nargundkar and Anr. Vs. State of Madhya Pradesh. the Apex Court observed that "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 be 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 a 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." 13. In the matter of Dhananjoy Chhatterjee Vs. State of W.B. 2, the Apex Court held that "In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof." 14. In Bodh Raj alias Bodha and others Vs. State of Jammu and Kashmi?, the Apex Court laid down that there is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence. must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may' be 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 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. 15. Almost similar view was again taken by the Apex Court in the matter of State of Go a Vs. Sanjay Thakran & anr.4. While passing the said judgment, the Apex Court has also referred to the decision of Bodh Raj cases (supra). 16. If we apply the above principles in the facts and circumstances of the present case, we do not find any incriminating circumstantial evidence against the appellant tram which the conclusion of his guilt may be drawn. In our considered view, the prosecution has utterly failed to prove the guilt of the appellant beyond all reasonable doubts and the learned Sessions Judge erred in law in convicting the appellant under the aforementioned Sections of I.P.C. 17. In our considered view, the prosecution has utterly failed to prove the guilt of the appellant beyond all reasonable doubts and the learned Sessions Judge erred in law in convicting the appellant under the aforementioned Sections of I.P.C. 17. In the result, the appeal is allowed. The conviction and sentences imposed against the appellant are set aside. He is acquitted of the charges framed against him. It is reported that the appellant is in jail since 17.10.96 as he could not furnish the bail bond even after passing of an order of suspension of sentences and grant of bail by this Court on 15.3.2004. He be set at liberty, forthwith, if not required in any other case. Appeal Allowed.