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2011 DIGILAW 234 (MP)

SALAM s/o KALIULLAH v. STATE OF M. P.

2011-02-17

PRAKASH SHRIVASTAVA, S.K.SETH

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JUDGMENT : S. K. SETH, J. 1. This judgment shall also dispose of the connected Cr. Appeal No. 398 of 2001, Sunil and another vs. State of M. P. Both appeals arise out of a common judgment of conviction dated 17-3-2001 passed by the Additional Sessions Judge, Dhar in Sessions Trial No. 199/2000. 2. The appellants of these two appeals were sent up for trial for having committed murder of Lakhansingh and his wife, Krishna Bai during the night intervening 11/12-6-2000 in their agricultural field situated in Village Nekpur within the jurisdiction of Police Station, Sadalpur, District Dhar. 3. Prosecution story, in brief, is as under. Deceased Lakhansingh and his wife, Krishna Bai were residing in a house situated in their agricultural field. The last person who had seen them alive was Karansingh (PW-7)-father of Lakhansingh in the night of 11-6-2000. Next morning, Karansingh discovered dead bodies of Lakhansingh and Krishnabai and at his instance, F.I.R. (Exhibit P/22) was lodged by Rameshwar (PW-13) at Police Station, Sadalpur at about 7.45 A.M. on 12-6-2000, which set the investigation rolling. The police suspected that the man-slaughter was committed in order to commit robbery. Dr. U. K. Shrivastava (PW-1) conducted the autopsy of Lakhansingh and the post-mortem report of Lakhansingh is Exhibit P/2. Dr. S. Watave (PW-10) conducted the autopsy of Krishnabai and the post-mortem report of Krishnabai is Exhibit P/21. In the opinion of the doctors, Lakhansingh and Krishnabai met with homicidal death. The further case of prosecution is that after the accused persons were arrested, the looted articles were discovered on the basis of their statement made under section 27 of the Evidence Act. After completing the investigation, charge-sheet was filed and the accused persons denied the charges. 4. Learned trial Judge considering the prosecution evidence found the appellants guilty of offences punishable under section 302 read with section 34 of the Indian Penal Code or in the alternative under section 302 of the Indian Penal Code. Learned trial Judge found the appellant-Salam guilty of murder of Lakhansingh and Krishnabai and sentenced him to undergo life imprisonment together with fine of Rs. 1,000/- with default stipulation. He was also found guilty of offences under sections 460 and 392. On each count, he was ordered to undergo R.I. for 10 years and fine of Rs. 1,000/- with default stipulation. 1,000/- with default stipulation. He was also found guilty of offences under sections 460 and 392. On each count, he was ordered to undergo R.I. for 10 years and fine of Rs. 1,000/- with default stipulation. Trial Court found appellant Sunil and Dashrath guilty of offences under section 302 and under section 34 of the Indian Penal Code and sentenced them to undergo life imprisonment and fine of Rs. 1,000/- on each count with default stipulation. Learned trial Court also found appellants - Sunil and Dashrath guilty of offences punishable under section 460 and section 392 of the Indian Penal Code and sentenced them to undergo 10 years' R.I. together with fine of Rs. 1,000/- on each count with default stipulation. It was directed that all the sentences to run concurrently. 5. Being aggrieved by the judgment appellants are challenging their conviction and sentences in these appeals. 6. We have heard Shri Ashish Vyas and Shri Desai at length. Also perused the record of trial Court and the evidence adduced by the prosecution. 7. From perusal of impugned judgment and the material available on record, it is clear that conviction of appellants is based on circumstantial evidence. 8. At this stage, we may point out that there is no dispute that Lakhansingh and Krishnabai died homicidal death which were duly proved by Dr. U. K. Shrivastava (PW-1) and Dr. S. Watave (PW-10) who conducted the autopsy of Lakhansingh and Krishnabai respectively. Dr. U. K. Shrivastava (PW-1) noticed as many as 16 injuries on the person of deceased -Lakhansingh and the cause of death was multiple stab wounds on the vital parts of the body i.e. on chest, lungs, liver, spleen, alimentary tract causing excessive haemorrhage leading to shock resulting in Cardio respiratory arrest and death. The post-mortem report of Lakhansingh is Exhibit P/2. Dr. Watave conducted the autopsy of Krishnabai and the post-mortem report is Exhibit P/21. According to Dr. Watave (PW-10), the cause of death of Krishnabai was haemorrhagic shock due to injuries to vital organs. In view of the aforesaid evidence, we have no hesitation to hold that Lakhansingh and his wife - Krishnabai both met with homicidal death during the night intervening 11/12-6-2000. 9. Now the question before us is, whether the appellants committed man-slaughter and other offences for which they have been convicted by the trial Court. 10. In view of the aforesaid evidence, we have no hesitation to hold that Lakhansingh and his wife - Krishnabai both met with homicidal death during the night intervening 11/12-6-2000. 9. Now the question before us is, whether the appellants committed man-slaughter and other offences for which they have been convicted by the trial Court. 10. Shri Ashish Vyas and Shri Raghuveer Singh appearing for the appellants submitted that important links are missing so as to form a complete chain. According to them, there must be a chain of evidence so as to not leave reasonable ground for conclusion therefrom consistent with the innocence of the accused. They urged that when dealing with the serious question of guilt of persons charged with crime there must be clear and unequivocal proof of the corpus delicti and the hypothesis of delinquency should be consistent with all the facts proved. 11. It is well settled that when a case rests on circumstantial evidence, such evidence must satisfy three tests - (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulatively, should form a complete chain so there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. In Brijlal Prasad Sinha vs. State of Bihar, (1998) 4 SCALE 25 (S.C.) Pattanaik, J. speaking for the Bench, held as under :- "In a case of circumstantial evidence the prosecution is bound to establish the circumstances from which the conclusion is drawn must be fully proved; the circumstances should be conclusive in nature; all the circumstances so established should be consistent only with the hypothesis of guilt and inconsistent with the innocence; and lastly the circumstances should to a great certainty exclude the possibility of guilt of any person other than the accused. The law relating to circumstantial evidence no longer remains res integra and it has been held by catena of decisions of this Court that the circumstances proved should lead to no other inference except that of the guilt of the accused, so that, the accused can be convicted of the offences charged. The law relating to circumstantial evidence no longer remains res integra and it has been held by catena of decisions of this Court that the circumstances proved should lead to no other inference except that of the guilt of the accused, so that, the accused can be convicted of the offences charged. It may be stated as a rule of caution that before the court records conviction on the basis of circumstantial evidence it must satisfy that the circumstances from which inference of guilt could be drawn have been established by unimpeachable evidence and the circumstances unerringly point to the guilt of the accused and further all the circumstances taken together are incapable of any explanation on any reasonable hypothesis save guilt of the accused." 12. It is equally well settled that where the entire prosecution case hinges on circumstantial evidence, the Court should adopt cautious approach for basing the conviction on circumstantial evidence and unless the prosecution evidence points irresistibly to the guilt of the accused, it would not be sound and safe to base the conviction of an accused person. Keeping this settled position in mind, we have examined the prosecution evidence adduced in the case in hand. From the evidence, it is clear that the conviction of appellants is based on memorandum under section 27 of the Evidence Act, which led to recovery of stolen articles. We may point out at this stage that as per prosecution case, a gold bangle of Krishnabai, some money in cash and a wrist watch belonging to Lakhansingh were looted. The F.I.R. (Exhibit P/22) was lodged in the morning of 12-6-2000 and according to investigating officer, appellants were arrested on 13-6-2000. On their statement, looted articles were recovered and seized on 13-6-2000. This was one of the vital link of the prosecution case. 13. Learned trial Judge has catalogued incriminating circumstances in the judgment and it is clear that the information furnished by the appellants relating to discovery of looted articles had a vital bearing on the prosecution case. In order to prove this, prosecution examined Meharban Singh (PW-8), Rameshwar (PW-13) and K. S. Bhuriya (PW-14). Exhibit P/9 is said to be the memorandum of appellant - Salam under section 27 of the Evidence Act, whereas Exhibit P/12 and P/13 are said to be the memorandum of appellant Sunil and Dashrath respectively under section 27 of the Evidence Act. In order to prove this, prosecution examined Meharban Singh (PW-8), Rameshwar (PW-13) and K. S. Bhuriya (PW-14). Exhibit P/9 is said to be the memorandum of appellant - Salam under section 27 of the Evidence Act, whereas Exhibit P/12 and P/13 are said to be the memorandum of appellant Sunil and Dashrath respectively under section 27 of the Evidence Act. As per prosecution, these memorandums were recorded by K. S. Bhuriya (PW-14) in presence of Omprakash (PW-3) and Rameshwar (PW-13). Bherusingh (PW-2) is the 'Panch' witness of recovery and seizure of knife and gold bangles of Krishnabai at the instance of appellant, Salam. Karansingh (PW-7) is the person who discovered the dead bodies of Lakhansingh and Krishnabai. Meharbansingh (PW-8) is the witness who reached the spot after hearing the alarm raised by Karansingh (PW-7). On scrutiny of evidence, we find that Omprakash (PW-3) and Rameshwar (PW-13) stated that the recovery and seizure was effected on 12-6-2000 and not on 13-6-2000 as was claimed by the prosecution. Exhibit P/6, P/7 and P/8 are the arrest-memo of Sunil, Dashrath and Salam, according to which, they were arrested on 13-6-2000. Thus, the oral evidence of Omprakash (PW-3) and Rameshwar (PW-13) contradicts the arrest-memo (Exhibit P/6 to P/8). It also belies the evidence of K. S. Bhuriya (PW-14), Investigating officer, who gave evidence that accused persons were arrested on 13-6-2000. K. S. Bhuriya (PW-14) stated that he was informed by an informer about the involvement of appellants in the crime, therefore, he called them and interrogated them and recorded the information given by them. 14. According to the prosecution witnesses, accused persons were arrested on 12-6-2000, whereas the arrest-memo says that they were arrested on 13-6-2000. The witnesses further say that immediately after the arrest, information was furnished leading to discovery of knife, golden bangles, money in cash and wrist watch and a pair of shoes. From the evidence of Karansingh (PW-7), it is clear that the articles were discovered and seized by the Police on 12-6-2000. Karansingh (PW-7) further stated that Meharban Singh (PW-8) was with him at the time of discovery and seizure of the articles. Meharban Singh (PW-8) has denied this fact. According to Meharban Singh (PW-8), when he reached the spot, he removed his shoes and when he seen inside the house where the dead body of Krishnabai was lying, he fainted. Karansingh (PW-7) further stated that Meharban Singh (PW-8) was with him at the time of discovery and seizure of the articles. Meharban Singh (PW-8) has denied this fact. According to Meharban Singh (PW-8), when he reached the spot, he removed his shoes and when he seen inside the house where the dead body of Krishnabai was lying, he fainted. The pair of shoes of Meharban Singh was also seized by the Investigating Officer. This only goes to show that the investigation was conducted in a slipshod manner. 15. A statement by accused caused by inducement, threat or promise is inadmissible even if it may lead to discovery of fact (for example, the property stolen, weapon of crime, body of deceased from some place of concealment). Such discovery of fact is inadmissible in evidence. It is clear to us that the discovery must be due to the information given by the accused while he is in custody. When the articles are first produced and then the confessional statements are made, the statements do not lead to discovery and are inadmissible. 16. In order to make a statement admissible under section 27 of the Act, it is necessary for the prosecution to prove that the fact was not discovered from any resource. In the present case, the prosecution has miserably failed to prove that looted articles were discovered on the information of accused persons. As we have pointed hereinabove, the Investigating Officer has shown the arrest of appellants on 13-6-2000 vide Exhibit P/6 to P/8 and thereafter discovered the looted articles on 13-6-2000 itself. Whereas, the witnesses have said that the looted articles were discovered and seized on 12-6-2000. If that be so, then the statement of accused persons leading to discovery of fact made on 13-6-2000 were not admissible in evidence and they were required to be discarded from the evidence. This legal position has been brushed aside by the trial Court while basing the conviction of appellants on the statement leading to discovery of fact said to have been made on 13-6-2000. This legal position has been brushed aside by the trial Court while basing the conviction of appellants on the statement leading to discovery of fact said to have been made on 13-6-2000. It is also clear to us that the articles discovered were not sealed on the spot and this fact is admitted by K. S. Bhuriya, Investigating Officer and this also does not find place in the seizure-memo, therefore, the trial Court rightly disbelieved its identification vide Exhibit P/19 about the identity of the articles looted and recovered from the accused persons. We may also point out that the looted articles were handed over to Karansingh (PW-7) on 'Supurdaginama' and they were not before in the Court at the time of examination of Bherusingh (PW-2) and Omprakash (PW-3). This was also one of the major flaw in the prosecution case. 17. On overall consideration, we find that the prosecution has not been able to prove the offences against appellants or at any rate, the appellants are entitled to benefit of doubt. 18. In view of the foregoing discussion, the appeals are allowed and the appellants are acquitted of all the charges. The appellants are on bail, therefore, their bail bonds stand discharged and the fine amount, if any, paid by them, be refunded to them. Order accordingly.