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2011 DIGILAW 1337 (MP)

URMILA w/o HEERALAL JAISWAL v. STATE OF M. P.

2011-11-24

MOOL CHAND GARG, S.K.SETH

body2011
JUDGMENT : 1. This judgment shall dispose of the aforesaid two criminal appeals which are arising out of the judgment of conviction and order of sentence delivered by the Additional Sessions Judge, Indore in Sessions Trial No. 442/92 in connection with case FIR No. 210/92 registered at Police Station Katkatpura, Indore on the basis of a missing report which was lodged in the said Police Station about missing of one Ravi Dubey on 5-4-1992 by his brother. 2. In brief, the case of the prosecution is that Ravi Dubey had some Courtship with Jyoti daughter of the appellant Urmila. Heeralal (since dead), husband of Urmila was also a co-accused in this case. In the month of May, 1992, a report was lodged by Rajesh, brother of Ravi Dubey with Police Station Katkatpura, Indore regarding missing of Ravi Dubey. On that day, it was informed that since 5-4-1992, Ravi Dubey along with Jyoti D/o Heeralal were missing. The two namely, Jyoti and Ravi Dubey were apprehended by Police at Bhopal and later on Jyoti was handed over to her father Heeralal on 19-5-1992. On that day, Urmila is said to have come to the house of Ravi Dubey and abused their family members. Even Heeralal also used to come and shout abuse at the family of Ravi Dubey Ravi is missing since 19-5-1992. 3. On the basis of the missing information, a report was lodged in Roznamcha vide Cr. No. 1583 (Ex.P/18), investigation whereof was entrusted to J. G. Choukse (PW-28). In connection with the aforesaid investigation, Choukse recorded the statements of various persons including Kasturibai, grandÂmother of the deceased and registered the First Information Report as Crime No. 210/9.2 under section 365 of the Indian Penal Code vide Ex.P/38 against Heeralal and Urmila who were found to be absconding. 4. On 12-6-1992, on the basis of secret information, Choukse had gone to village Kaltak Police Station Balakwada District Khargone where in presence of Nayan Singh, the appellant Prakash was arrested. He allegedly made a confessional statement for which a memorandum was prepared. As per memorandum, the appellant Prakash had informed the police that he was in a position to get recover the dead body of Ravi Dubey which he threw along with other persons in a rivulet (Nala) of a forest near village Thikri. He allegedly made a confessional statement for which a memorandum was prepared. As per memorandum, the appellant Prakash had informed the police that he was in a position to get recover the dead body of Ravi Dubey which he threw along with other persons in a rivulet (Nala) of a forest near village Thikri. On that basis MARG was recorded by Constable Arun in presence of Nayan Singh and Mansukh, Prakash also helped in preparing the site plan of the place of incident Ex.P/27 and then got recovered the unidentifiable Narkankal from a depth of 15 in the rivulet of the village. This is based to be dead body of Ravi Dubey, the missing person. Said Narkankal was in the shape a skeleton of bones only. Witnesses were called to identify the Narkankal. A Panchnama of the dead body was prepared. Forensic personnel were also summoned. They were given an application to examine the dead body vide Ex.P/34 was seen. He gave his report Ex.P/31-A. The said report reads as under :- "A skeleton with PM requisition form brought by H/C Arun Bhargava No. 27, Chauki Khultak P/S Balakwada on 13-6-1992 at 11.30 AM. On examination, I found a human skeleton containing foul swelling lying supine. Skeleton comprises of skull including maxilla and mandible with teeth. All cervical vertebrae. Both clavicle present and intact. All the ribs are present and attached at only posterior end, sternum present inside the thoracic cavity with lateral end from the ribs on sternal end. All thoracic and lumber vertebrae present and intact. Both humerus bones intact. Rt. radius and ulna with Rt. hand intact. Left forearm with left hand separated from the body and found near the body in which left radius separated from elbow joint and left ulna broken at lower end, pelvis with screrum intact. All the bones of both side of lower limb and both the foot intact. Blackening of skin and face of scalp seen. Most of the scalp hairs burnt and some unburnt hairs also present over the scalp mainly over Rt. Tempero parietal region and in occipital region just above the occipital protuberance. Left orbital cavity seen. Right eye ball shrunken. Mouth open, upper and lower front teeth seen. Teeth loosened but present inside the tongue. Inside the oral cavity having blackish appearance. Most of the scalp hairs burnt and some unburnt hairs also present over the scalp mainly over Rt. Tempero parietal region and in occipital region just above the occipital protuberance. Left orbital cavity seen. Right eye ball shrunken. Mouth open, upper and lower front teeth seen. Teeth loosened but present inside the tongue. Inside the oral cavity having blackish appearance. Skin and soft tissues and muscles absent on anterior aspect of neck except few particles fibres and ligaments cuts. A mole of 1/2" x 1/2" size on anterior aspect of neck in tracheal region found. Clavicle exposed and anterior aspect of all the ribs exposed with few intercostal muscles fibres present between the ribs. Skin of the posterior aspect of neck, shoulder back of chest and abdomen with gluteal region present showing burn effect. Skin of above area found hardened. A piece of burn clothing adherent to the skin of the back. Soft tissue present over Rt. Forearm and hand and a parting above the Rt. elbow joint. Anterior right humerus bone exposed and posteriorly skin with soft tissues. Right arm present attached with the right humerus bone. Ligaments of Right, shoulder joint intact. A piece of clothing black in colour adherent encircling the right wrist. Left humerus intact, Anteriorly bone exposed Posteriorly skin and soft tissue present (left arm) with left forearm separated from elbow joint in which left radius bone separated from elbow joint and left ulna bone broken at lower end. Skin with soft tissue present over hand and separated part of left forearm In pelvis skin and soft tissue present. In gluteal region and ligaments present in pelvic cavity. Skin and soft tissue present in posterior aspect of both the thigh and whole left leg with a part of Rt. leg. Burn effect over skin of leg seen. Skin and soft tissue of the anterior aspect of the both the thigh and leg missing and bones exposed. Ligaments of hip joint with knee joint seen. Skin and nails of the anterior aspect of the both foot present and part of skin and soft tissue of sole of the both tooth present and resit of the sole of feet present of skin and soft tissue ligaments of foot seen. Finger prints of both the hands taken and attached with the report for identity purpose. Skin and nails of the anterior aspect of the both foot present and part of skin and soft tissue of sole of the both tooth present and resit of the sole of feet present of skin and soft tissue ligaments of foot seen. Finger prints of both the hands taken and attached with the report for identity purpose. Human skeleton with bones of some individual sealed and labelled and handed over to police custody and referred to Forensic Specialist Medico Legal Institution and Forensic Medicine Department Bhopal for expert opinion regarding age, sex, identification of the individual cause of death and time since death." 5. The Narkankal was sent to Bhopal with Rajnikant and Nawal where Shri D. K. Satpati examined the said Narkankal and gave his report Ex. P/35 which reads as under :- "Body is in practically skeletonised form along with skin at places mummified head and face burn caused by dry flame over the body is present. Evidence of stripping of eyes some stripe living healthy skin and hair present. Ante mortem head and neck injuries caused by hard, sharp and penetrating object is also present, as such death is homicidal in nature. Exact duration of death cannot be ascertained, however, it appears to be within 4 weeks/ 2 weeks. Skull is having all the features for identification purpose has been taken and if required it can be preserved." (paper torn) 6. As per the said report, the death of the person whose Narkankal was sent for examination was homicidal which took place about two to four weeks and that Narkankal had signs of ante mortem injury with a sharp weapon on the neck besides piercing instrument. According to the aforesaid report, the face of the Narkankal could be identified and therefore, the scalp bone of Narkankal was kept in safe custody. 7. The other investigations were also carried by J. P. Choukse. On 13-6-1992, J. G. Choukse recovered controlled and blood stained earth, empty diesel container, half burnt pant and shirt of the deceased from the spot and seized them vide Ex.P/29, He also recovered the hair and kept them in a bottle and prepared a Panchnama. He also seized a piece of Lungi by which the fact of Ravi Dubey was wrapped, vide Panchnama Ex.P/26 and arrested Heeralal in presence of witnesses Chunnilal and Rais. He also seized a piece of Lungi by which the fact of Ravi Dubey was wrapped, vide Panchnama Ex.P/26 and arrested Heeralal in presence of witnesses Chunnilal and Rais. Heeralal got recovered and seized a jeep by which Ravi Dube was kidnapped vide Panchnama Ex.P/10. On 23-6-1992 J. G. Choukse, on being produced by Constable Rajnikant also seized the skull of Ravi Dubey. He seized five coloured and 5 black and white photographs of the Narkankal of Ravi Dubey, vide Panchnama Ex.P/8. On 29-6-1992, he arrested Rana vide arrest memo Ex.P/41 and at his instance recovered and seized a knife vide Ex.P/37. J. G. Choukse also arrested accused Vimal at whose instance a wrist watch was seized vide Ex.P/36. J. G. Choukse also arrested appellant Urmila. 8. The important part of investigation which deals with the identification of the dead body is mentioned in para 7 of the judgment and reads as under:- 9. It is, however, interesting to note that Ex.P/46 has not been proved by the person who prepared the said report inasmuch as the person concerned was not examined by the prosecution as a witness even though the said opinion is the only opinion which according to the prosecution connected the Narkankal with the dead body of Ravi Dubey. For the sake of reference Ex.P/46 is reproduced as under :- 10. Shri Yogesh, the author of this document has not come forward in the witness-box. 11. Concluding that after apprehension of Jyoti and Ravi Dubey by Bhopal Police, Heeralal and Urmila started hating against Ravi Dubey and to wanted take revenge. They kidnapped Ravi Dubey from his house beat him near Rajpur and then killed him. Thereafter the dead body of Ravi Dubey was burnt with the help of diesel in a jungle and recovered later. On that basis, a charge-sheet was submitted by the police officials of Police Station Katkatpura, Indore against the accused persons including the appellants Urmila, Prakash. The accused Praksh, Rana and Vimal were charged under sections 364, 302 and 201 read with section 115 of the Indian Penal Code whereas appellant Urmila was charged under section 302 read with section 115 of the Indian Penal Code. 12. After the challan was presented, the matter wash committed to the Court of Session on 30-9-1992. Charges were framed. The appellants denied the charges. 12. After the challan was presented, the matter wash committed to the Court of Session on 30-9-1992. Charges were framed. The appellants denied the charges. Trial was held and finally the appellants were convicted as aforesaid and were awarded sentences as stated above. However, as far as other accused persons are concerned, they were acquitted as no evidence was found against them. As stated above, Heerlal is no more. 13. It may be observed here that the entire case of the prosecution is based on circumstantial evidence inasmuch as there is no direct evidence regarding commission of murder or even kidnapping. The prosecution has examined as many as 30 witnesses, but none of them is the eye witness to the incident. 14. It may be observed that in para 11 of the impugned judgment, the learned Sessions Judge formulated the following points for determination:- (1) Whether Ravi Dubey has in fact died ? (2) Whether the death was homicidal ? (3) Whether the death of Ravi Dubey was caused by accused No. 3, 4 and 5 (Prakash, Rana and Vimal respectively) or was the result of their act.? (4) Whether that act was done with intent to : (a) Causing death or (b) If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted' is sufficient in the ordinary course of nature to cause death. (5) Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false. (6) Whether accused No. 2 Urmila abetted other accused persons as a result of which they committed murder of Ravi Dubey.? 15. So far as the first two questions, the trial Court answered these questions in affirmative by relying upon the statement of PW-15 Kasturibai and PW-22 Nilima Dubey. However, the testimony of these two witnesses only talks about Ravi Dubey being absent from the house since 19th May, 1992. This does not prove that he is no more. 16. 15. So far as the first two questions, the trial Court answered these questions in affirmative by relying upon the statement of PW-15 Kasturibai and PW-22 Nilima Dubey. However, the testimony of these two witnesses only talks about Ravi Dubey being absent from the house since 19th May, 1992. This does not prove that he is no more. 16. The trial Court has then relied upon the statement of J. P. Choukse (PW-28), the Investigating Officer who arrested the appellant Prakash, recovered Narkankal on the basis of memorandum of Prakash from a dry rivulet near village Thikri vide Ex.P/28, but, in the absence of identification of the dead body as that of Ravi Dubey, the evidence of Prakash makes no difference and does not prove the charge of murder. 17. It is important to note that as per the three reports which have been relied upon by the prosecution regarding identification of the dead body, none of the reports prove that the Narkankal recovered was that of Ravi Dubey or that it could be related to Ravi Dubey. We have already made a reference to the three reports. The identification of that Narkankal to be that of Ravi Dubey cannot succeed with the help of super imposition, of a photograph. More so when the witness Yogesh who did this job nor any other evidence to prove that the photograph which was used for identification was that of Ravi Dubey has been brought on record. 18. It is interesting to note that the trial Court itself has taken note of the report of Forensic Expert who has not been able to tell the age, sex or identification including the cause of death of the body of which Narkankal was recovered so as to connect it with the murder of Ravi Dubey. Reference has been made by the trial Court on the report of Dr. D. K. Satpati (PW-25) which report has been reproduced herein-above by us. However, even as per the report, there was no clear opinion that the Narkankal was that of Ravi Dubey. 19. Dr. Satpati (PW-26), in his cross-examination has stated that he has not given the age and sex of the Narkankal. D. K. Satpati (PW-25) which report has been reproduced herein-above by us. However, even as per the report, there was no clear opinion that the Narkankal was that of Ravi Dubey. 19. Dr. Satpati (PW-26), in his cross-examination has stated that he has not given the age and sex of the Narkankal. He also stated that he did not find any necessity, because as per the police the Narkankal was already identified as that of Ravi Dubey (a male), by the two constables who have not been examined as stated above for which there is no any valid evidence is available on record. It appears that the opinion of Satpati (PW-26) is based on the opinion of police that the Narkankal was that of Ravi Dubey. It will also be relevant to take note of para 10 of his cross-examination wherein he his stated that he found no evidence of use of diesel on the aforesaid Kankal. 20. Further it will be relevant to take note of the question and answer given by the witness as available in para 7 of the cross-examination, which reads as under :- 21. A perusal of the aforesaid question and answer shows that the report of PW-26 Satpati was based on the statement made by Rajnikant and Ramal who took the Narkankal to Bhopal for ascertaining sex and time of the death of the body. However, there is no evidence to show that any one of the constable was in a position to certify that the dead body/Narkankal was that of Ravi Dubey. There is no evidence that Rajnikant Constable had identified the body as has been mentioned in the report Ex.P/31. In fact neither Rajnikant nor Ramal have been examined. Dr. Rajnikant who has appeared as PW-23 had referred the Narkankal to an expert for the purpose of identification. He has also not given the definite opinion regarding age and sex of Narkankal. In para 3 of his report he has stated that :- The aforesaid observation goes to show that this witness also did not given any opinion about identification of the Narkankal and even the other circumstances i.e. alleged kidnapping of Ravi Dubey or his being found in the company of accused persons or their beating has also not been supported by the witnesses. Thus, the chain of events have not been established which may prove that it is the appellants who could be held guilty of commission of murder of Ravi Dubey or the abatement of such a crime. 22. Even otherwise, the law with regard to conviction on the basis of circumstantial evidence is well settled. The law is that the evidence led by the prosecution in such cases must meet the test of pointing out only one conclusion i.e. it is the accused persons who are guilty of the offence and none else. However, in this case, there is absolutely nothing on record except for a report of missing and presumptions which have been reached to connect the appellants with the crime in question. In fact insofar as Urmila is concerned, there is absolutely no evidence that she was guilty of committing the offence punishable under section 115 of the Indian Penal Code. 23. Supreme Court in the matter of Bodh Raj @ Bodha and ors. vs. State of Jammu and Kashmir, reported in AIR 2002 SC 3164 has observed as under :- "12. We may also make a reference to a decision of this Court in C. Chenga Reddy and ors. vs. State of A. P., wherein it has been observed thus- "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusively in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence..." 13. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence..." 13. In Padala Veera Reddy vs. State of A. P. and ors., it was laid down 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, mast 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. 14. In State of U. P. vs. Ashok Kumar Srivastava, 1992 Cri.L.J. 1104, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inference, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 15. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 15. Sir Alfred Wills in his admirable book "Wills" Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence : (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum, probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of director circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of is guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." 16. There is no doubt that conviction can be based on circumstantial evidence but it should be tested by the touch stone of law relating to circumstantial evidence laid down by this Court as far back as in 1952." 24. In these circumstances, it is difficult to uphold the judgment of conviction against the two appellants. They are entitled to get benefit of doubt and thus, the appeals deserve to be allowed. 25. Resultantly the aforesaid two appeals are hereby allowed. The appellants are acquitted from the charges which have been levelled against them. They are on bail. Their bail bonds shall stand discharged. 26. Let the original judgment be retained in the record of Cri. Appeal No. 495/2000 and a copy thereof be placed in the record of Cri. Appeal No. 760/2000. A copy of the judgment be also sent to the trial Court for information and record.