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2012 DIGILAW 140 (CHH)

PANCHRAM v. STATE OF M. P.

2012-05-09

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J 1. This appeal is directed against the judgment dated 25th of August, 1995 passed in Session Trial No 470/1991 by the Third Additional Session Judge, Bilaspur. By the impugned judgment, the appellant has been convicted u/ss 302 & 201 IPC and sentenced to undergo imprisonment for life & R.I. for 3 years with fine sentences of Rs.5,000/- & 2,000/- under each count. 2. The facts, briefly stated, are as under: Deceased- Gangotri Bai was wife of the appellant. She was residing with the appellant in village Amartal. On 4.7.1991, in the morning, her dead body was found in her house in burnt condition. Merg intimation (Ex.-P/23A) was lodged by uncle of the appellant Indrabushan (A-2). The Investigation Officer reached to the place of the occurrence, gave notice (Ex.-P/8) to the Panchas and prepared inquest (Ex.-P/9) on the dead body of the deceased. The dead body was sent for post-mortem to Primary Health Centre, Akaltara vide Ex.-P/1 -A. The post-mortem examination was conducted by Dr. M. Bhagat (PW-1). The Autopsy Surgeon found that the deceased was killed by gagging and throttling and was burnt thereafter. The duration of the incident was between 24 to 36 hours. The post-mortem report is Ex.-P/1. Since the deceased was usually residing with the appellant and the relationship between them were not cordial according to the evidence of Soan Bai (PW-10 - mother of the deceased) and Puri Bai (PW-12 - sister of the deceased) and the dead body of the deceased was found in the house of the appellant, it was held that the appellant had killed the deceased and thereafter he tried to disappear the evidence by putting the dead body on fire, therefore, he was liable for punishment u/ss 302 & 201 IPC. Co-accused Indrabushan (A-2) was acquitted holding him innocent about the incident because he simply lodged the report that the dead body was found in burnt condition which he saw in the morning. 3. Ms. Sharmila Singhai, learned counsel appearing on behalf of the appellant, argued that according to the merg intimation (Ex.-P/23A) and the First Information Report, lodged after completion of investigation of merg, the incident took place in the morning of 4.7.1991. At that time the appellant was not present in his house as he had gone to work in the field of Ramesh Kumar (PW-4). At that time the appellant was not present in his house as he had gone to work in the field of Ramesh Kumar (PW-4). Not only this, the deceased had visited the field of Ramesh Kumar (PW-4) in the morning hours of 4.7.1991 as she brought meal for the appellant in the field of Ramesh Kumar (PW-4). Ramesh Kumar (PW-4), Rajendra Prasad (PW-7) and Mohan (PW-8) have deposed that after returning of the deceased from the field of Ramesh Kumar (PW-4) in the morning and prior to the incident, the appellant was in the field of Ramesh Kumar (PW-4). The appellant has also given such explanation in answer to question No.72 in his statement U/S 313 Cr.P.C. The learned Session Judge erred in not relying on the above evidence and falsifying them on the basis of time of death mentioned in the post-mortem report (Ex.-P/1). 4. On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. 5. We have heard learned counsel for the parties at length and have also perused the records of the session case. 6. The learned Session Judge has recorded the finding that relations between the appellant and the deceased were not cordial. The said finding has been recorded on the evidence of father, mother and sister of the deceased. Sakun (PW-3) is father of the deceased. He deposed in clear words that the deceased had never made any complaint to him against the appellant. His wife Soan Bai (PW-10) had told him after the death of the deceased that the deceased used to tell her that she does not want to go to her matrimonial house and if she will go there, the appellant would kill her. Soan Bai (PW-10) deposed that the deceased had said her that she will not go to her husband's place as he shall burn her. Baishakhu (PW-13) is brother-in-law (sadu) of the appellant. He deposed that when he met the deceased in village Khaira 4-5 days prior to the incident, the deceased had told him that her husband would kill him. Soan Bai (PW-10) deposed that the deceased had said her that she will not go to her husband's place as he shall burn her. Baishakhu (PW-13) is brother-in-law (sadu) of the appellant. He deposed that when he met the deceased in village Khaira 4-5 days prior to the incident, the deceased had told him that her husband would kill him. The above evidence shows that the relations between the husband and wife were not cordial, but the fact remains that the family members of the deceased sent the deceased to her matrimonial house and the deceased started living with the appellant in his house in village Amartal. The importance of above evidence has to be examined in light of the other evidence available on record. 7. The prosecution came with the case that the deceased died homicidal death in the morning of 4.7.1991. The appellant had taken defence that on the fateful day, at 6.00 a.m., he was working as labour in the field of Ramesh Kumar (PW-4). Ramesh Kumar (PW-4) deposed that the appellant was engaged as a labour for ploughing his field. On the fateful day at about 6.00 a.m. the appellant came to his house. Thereafter he along with Panchram (appellant), his younger brother Rajendra Prasad (PW-7) and Mohan (PW-8) had gone to his field. Appellant- Panchram was throughout with them from 6.00 a.m. to 11-12 Noon. In between this period Gangotri Bai had visited their field at about 7.00 a.m. for leaving food (meal) of Panchram. They heard in the field that deceased- Gangotri Bai has sustained burn injuries. Thereafter they returned to their houses and Panchram also returned to his house. He was declared hostile. Ramesh Kumar (PW-4) was cross examined by the Public Prosecutor. He denied the suggestion of the Public Prosecutor relating to some contradictions between his case diary statement (Ex.-P/13) and his court evidence. Though many suggestions were put by Public Prosecutor relating to various facts, but Public Prosecutor did not call upon him to explain about the most important omission in his case diary statement i.e. it was not mentioned in the dairy statement that Gangotri Bai (deceased) had visited his filed at about 7.00 a.m. which statement he deposed before the Court. There is absolutely not cross examined on the above statement of Ramesh Kumar (PW-4). There is absolutely not cross examined on the above statement of Ramesh Kumar (PW-4). In further cross examination by the defence, Ramesh Kumar (PW-4) admitted vide Para-5 that from 6.00 a.m. to 11.00 a.m. appellant- Panchram was continuously working in his field and in between this period, he had not gone to any other place. He also, in the cross-examination in same paragraph, very clear deposed that after their reaching to the field in the morning, after one hour the deceased had visited the field as she had brought food (meal) for the appellant. 8. Rajendra Prasad (PW-7) had also gone to the field along with the appellant, Ramesh Kumar (PW-4) and Mohan (PW-8). He also deposed in similar fashion. He was also declared hostile by the Public Prosecutor and was confronted with his case diary statement (Ex.-P/22). He denied the portions of the case diary statement. He had also deposed in examination-in-chief that deceased-Gangotri had visited their field at 7.00 a.m. No question was asked by the Public Prosecutor about his such deposition in examination-in-chief as it was an omission in his diary statement (Ex.-P/22). In further cross-examination by the defence, he clearly admitted vide Para-5 that from 6.00 a.m. to 11.00 a.m. appellant-Panchram was with them and in between this period he has not gone to any other place. 9. Mohan (PW-8) had also accompanied the appellant and the above 2 witnesses to the filed of Ramesh Kumar (PW-4). He deposed that they had reached to the field at about 6.00 a.m. Thereafter at about 7-8.00 a.m. the deceased visited the field with the food (meal) of the appellant. After 5 minutes, she returned back. He was also declared hostile and was cross-examined by the Public Prosecutor. He was also confronted with his case diary statement (Ex.-P/23) on many counts, but no questions were asked from him by the Public Prosecutor relating to vital omission in his diary statement (Ex.-P/23) regarding the fact that the deceased had visited the field at about 7-8.00 a.m. 10. He was also declared hostile and was cross-examined by the Public Prosecutor. He was also confronted with his case diary statement (Ex.-P/23) on many counts, but no questions were asked from him by the Public Prosecutor relating to vital omission in his diary statement (Ex.-P/23) regarding the fact that the deceased had visited the field at about 7-8.00 a.m. 10. Section 145 of the Indian Evidence Act, 1872 provides that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. Section 145 applies only to contradiction, but if there are omissions in previous statements, which amount to contradictions in view of Section 145, the witness I must be cross-examined with reference to the above contradictions by omission. 11. In the instant case, there were omissions in the evidence of above 3 witnesses regarding visiting of the deceased to the field of Ramesh Kumar (PW-4). These were certainly contradictions by omissions, but not a single question was asked by the Public Prosecutor about the said omissions made by the above witnesses neither those witnesses were confronted with reference to their previous statements regarding the above vital contradictions. According to the prosecution, the above witnesses were the witnesses of the fact that the appellant had gone to the field of Ramesh Kumar (PW-4) in the morning and he remained with them and the witnesses watched that his conduct was suspicious. However, these witnesses added that the deceased visited to the field at about 7-8.00 a.m. when they were working in the field. Without cross-examination on the above point, the learned Session Judge has disbelieved the testimonies of these witnesses and has held that the above omissions were fatal to the prosecution even without reference of the above omissions to the said witnesses. 12. Dhumdas (PW-6) was village Kotwar. He was witness of Panchnama etc. The prosecution has relied upon his testimony. Without cross-examination on the above point, the learned Session Judge has disbelieved the testimonies of these witnesses and has held that the above omissions were fatal to the prosecution even without reference of the above omissions to the said witnesses. 12. Dhumdas (PW-6) was village Kotwar. He was witness of Panchnama etc. The prosecution has relied upon his testimony. He admitted in clear words in Para-5 of his cross-examination that on the fateful day at about 6.00 a.m. Gangotri (deceased) met him at the public well as she had come to fetch water. Dhumdas (PW-6) was not declared hostile by the prosecution and the prosecution has relied on his testimony. The learned Session Court did not rely on his above admission on the ground that it recorded a finding that the deceased was put to death in the intervening night of 3.7.91 - 4.7.91 and then was put to fire in the morning. The finding relating to time of death has been recorded on the medical evidence. 13. In Ramreddy Rajesh Khanna Reddy and Another Vs. State of A.P.(2006) 10 SCC 172, regarding exact time of death on the medical evidence, die Supreme Court observed in Paras-21 to 23 as under:- 21. In Modi's Medical Jurisprudence, 22nd Edn., as regards duration of rigor mortis, it is stated: "Average Minimum Maximum Hours Minutes Hours Minutes Hours Minutes Duration of 19 12 3 0 40 0" rigor mortis It was, therefore, extremely difficult to purport the exact time of death of the deceased, more so when no sufficient reason was assigned in the post-mortem report. 22. In Pattipati Venkaiah V. State of A.P., (1985) 4 SCC 80, this Court held (SCC p. 83, para 10) "10. Another circumstance stressed by Mr. Garg was that according to the medical evidence the deceased must have died by about 5.30 a.m. on 2-7-1975 and no reasonable explanation has been given by the prosecution as to why the dead body was taken to the hospital at about 10.55 a.m. after about five hours when the hospital was quite near. Here, the learned counsel as also the trial court have committed a serious error in the appreciation of evidence. Here, the learned counsel as also the trial court have committed a serious error in the appreciation of evidence. A perusal of the evidence of the doctor does not conclusively show that the deceased must have died at about 5-6 a.m. Medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerized or mathematical fashion so as to be accurate to the last second." (Emphasis supplied) 23. In Ram Udgar Singh V. State of Bihar, (2004) 10 SCC 443 this Court held (SSC p. 448, para 10) "10. Evidence of PWs 1, 2, 3 and 5 clearly establishes the definite role played by the accused-appellant. So far as the plea relating to the time of death on the basis of medical evidence is concerned, emphasis is laid on the fact that rigor mortis could not have set in, in the dead body within two hours. The High Court has referred to several treatises on medical jurisprudence to conclude that the time which is usually three to four hours may vary according to climatic conditions. We find no infirmity in the conclusion. The courts were justified in holding that the appellant was the assailants, and accordingly convicted him. No exception could be taken to the well-merited reasoning squarely found supported by overwhelming, relevant, convincing and concrete evidence placed on record by the prosecution in this case." (See also State of Punjab Vs. Daljit Singh, (2004) 10 SCC 141). 14. The finding relating to time of death is solely based on the solitary evidence of Dr. M. Bhagat (PW-1) who gave his opinion that the death must have occurred within 24 to 36 hours from the time of post-mortem which he conducted on 5.7.91 at about 7.30 a.m. The said evidence relating to time of death was an opinion evidence and the time of incident, i.e. 7.00 a.m. would also be covered in the said duration of "within 24 to 36 hours". Therefore, on the above evidence, it was not possible for the Court to record a positive finding that the death must have occurred at any time prior to 24 hours from the time of post-mortem examination. The above finding appears to be unreasonable and in view of the above principles the same cannot be sustained. Therefore, on the above evidence, it was not possible for the Court to record a positive finding that the death must have occurred at any time prior to 24 hours from the time of post-mortem examination. The above finding appears to be unreasonable and in view of the above principles the same cannot be sustained. We are of the view that it cannot be held conclusively only on the above opinion of the Autopsy Surgeon that the incident must have occurred in the intervening night of 3.7.91 & 4.7.91 and not in the morning of 4.7.91 at about 7.00 a.m., as is the case of the prosecution from the very beginning. 15. If the above finding relating to time of death is not accepted, the evidence of Ramesh Kumar (PW-4), Rajendra Prasad (PW-7) and Mohan (PW-8) and admission in the cross-examination of Dhumdas (PW-6) would assume importance who admitted to see the deceased in the morning hours of 4.7.91 after reaching the appellant to the field of Ramesh Kumar (PW-4). 16. Mannulal (PW-5) was posted as teacher in Government School, Amartal. He deposed that on the fateful day at about 11.00 a.m. he was present in the school. Indrabushan (A-2) came to the school and said that some smoke is coming from the house of the appellant. He requested him to accompany to the house of the appellant. He went to the house of the appellant. The appellant was also present there. The appellant tried to open the door by pushing it 10-12 times. The door then was broken. In fact, the adaha (put for closing the door from inside) was broken. The appellant then entered into his house and shouted from inside that everything has been burnt. There was no window in the house. Indrabushan (A-2) also told him that everything has been burnt. In cross-examination, he admitted in clear words that the room was closed from inside. Photographs of the room and the deceased were shown to him in cross-examination by the Court. He admitted those photographs. Nothing adverse could be brought in his cross-examination. On his above evidence, it is proved that the deceased got burn injuries in the day time and along with the deceased almost all articles in the house were burnt. Photographs of the room and the deceased were shown to him in cross-examination by the Court. He admitted those photographs. Nothing adverse could be brought in his cross-examination. On his above evidence, it is proved that the deceased got burn injuries in the day time and along with the deceased almost all articles in the house were burnt. At that time the house was bolted from inside and the appellant was outside the house and he had broken the door before this witness. There is no reason to disbelieve the testimony of Mannulal (PW-5). The above evidence of Mannulal (PW-5) supports the plea of the appellant that he was not present in the house at the time of the incident as he had gone to work in the field of Ramesh Kumar (PW-4) from 6.00 a.m. 17. Admittedly, there is no direct evidence in this case and the case of the prosecution is based on circumstantial evidence. In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have to be fully established and all the circumstances so established should be of conclusive nature and tendency. They must point only towards the guilt of the accused. The circumstances should not be capable of being explained and the chain of the circumstantial evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. This is what the Supreme Court said in many cases. Therefore, we ought to be satisfied that the circumstances on which the prosecution relies leave no option but to hold that the crime imputed to the appellant has been established beyond a reasonable doubt (See- Dhananjoy Chhatteriee Vs. State of W.B. (1994) 2 SCC 22 and Bodh Raj alias Bodha and others Vs. State of Jammu and Kashmir AIR 2002 SC 3164. 18. In appreciation of the entire evidence available on record, we find that though there was evidence to hold that the relationship between the appellant and the deceased were not cordial, but there was no sufficient evidence to hold that it was proved beyond all reasonable doubt that the appellant was present in the house at the time of the incident, and thus, he was the author of the crime. Therefore, we are unable to sustain the conviction of the appellant on the above set of circumstantial evidence and the same has to be set-aside. 19. In the result, the appeal is allowed. The conviction and sentences awarded to the appellant u/ss 302 & 201 IPC are set-aside. The appellant is acquitted of the charges framed against him. The appellant was arrested on 7.7.91 and was released on bail on 26.4.97 by order dated 10.3.97. Presently he is on bail. His bail bonds are cancelled and surety stands discharged. Appeal Allowed.