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Madhya Pradesh High Court · body

2012 DIGILAW 956 (MP)

Gorelal v. State of M. P.

2012-10-01

G.D.SAXENA, S.K.GANGELE

body2012
Judgment G.D. Saxena, J.;- 1. This appeal under Section 374 of Cr.P.C. has arisen out of the impugned judgment and order of conviction and sentence dated 27th August, 2002 rendered in Sessions Trial No. 159/01 by the Additional Sessions Judge, Ganjbasoda, district Vidisha (M.P.), thereby the learned trial Judge convicted the appellant for commission of murder of his wife, namely, Smt. Kantibai under Section 302 of I.P.C. and sentenced him to suffer imprisonment for life with a fine Rs. 100/- and in default to suffer three months' additional rigorous imprisonment. However, by the same findings, the appellant stood acquitted of the offence under section 304-B of I.P.C. Facts in short as came out from the evidence led before the trial court, which are just necessary for the disposal of the instant appeal are that on 29th May 2001 at around 8.30 in night, Kailash alongwith village chowkidar Kok Singh informed to the Police Station that his daughter-in-law died by strangulation. A Marg Report at No. 13/2001 vide Ex. P.18 was written and inquiry was made. After inquiry and postmortem report of the deceased Kantibai, an FIR was lodged against her husband, present accused. After investigation, the charge-sheet was filed and on committal, the session trial was commenced. The charges for committing offence punishable under Section 302 of I.P.C., in alternative under Section 304-B of I.P.C. were framed. After trial, the accused was convicted for murder of his wife and sentenced, as indicated above. Being aggrieved by the judgment of conviction and sentence, the accused-appellant has preferred this appeal. 2. The contention put forth on behalf of learned Counsel appearing for the appellant is that the judgment of conviction and sentence passed by the trial court is manifestly illegal, arbitrary and against the facts and the evidence so adduced. It is submitted that in this case all the witnesses including the parents and close relations of the deceased did not support the prosecution version and have turned hostile. It is stated that the conviction and sentence recorded by the trial court against the accused is solely based on the postmortem report of the deceased and statement of the doctor, who performed autopsy on the body of deceased Kantibai and opined that the death of the deceased was homicidal in nature. It is stated that the conviction and sentence recorded by the trial court against the accused is solely based on the postmortem report of the deceased and statement of the doctor, who performed autopsy on the body of deceased Kantibai and opined that the death of the deceased was homicidal in nature. It is argued that as per medical evidence it was tried to establish that the neck of the deceased was pressed and thereafter she was hanged but whether the accused is responsible for this act is not proved by the prosecution and there is at all no evidence. It is therefore prayed that by allowing the appeal, the conviction and sentence against the appellant be set aside. In support of his submission, learned Counsel placed reliance on the decision in the case of Sohel Mehaboob Shaikh Vs. State of Maharashtra ( AIR 2009 SC 2702 ). 3. The leaned Public Prosecutor appearing for the respondent/State opposed the submissions put forth above on behalf of the appellant and contented that the guilt against the present accused stands proved beyond shadow of doubts and based on sound reasonings and the principles laid down in the case of Sharad Birdichand Sarda Vs. State of Maharashtra ( AIR 1984 SC 1622 ). It is submitted that the prosecution succeeded to prove the chain of circumstances beyond doubts against the accused. It is further proved that the deceased was wife of the accused and prior to death she was residing with him (her husband). As per medical evidence, death of deceased was on account of strangulation and after death, her dead body was hanged thus as per learned Public Prosecutor for the State, the death was homicidal in nature. It is submitted that the accused utterly failed to rebut the presumptions that he has caused death of his wife who was residing with him at the relevant time. Therefore, it is prayed that by disallowing the appeal the conviction and sentence recorded against the accused-appellant be maintained. 4. Heard the learned Counsel appearing for the accused/appellant and also the learned Public Prosecutor appearing for the State. We have also perused the prosecution evidence and all documents exhibited and proved by the witnesses and gone through the accused statement recorded under Section 313 of Cr.P.C. 5. 4. Heard the learned Counsel appearing for the accused/appellant and also the learned Public Prosecutor appearing for the State. We have also perused the prosecution evidence and all documents exhibited and proved by the witnesses and gone through the accused statement recorded under Section 313 of Cr.P.C. 5. The next question and the crucial one is whether the appellant was responsible for the death of the deceased. 6. There is no direct evidence of eye-witness implicating the appellant. The prosecution case rests entirely on circumstantial evidence. The circumstances which mainly appear and are emphasized by the prosecution are as follows: (1) The relation between the appellant and his wife was strained and the appellant had motive for murder; and (2) The appellant and the deceased were last seen together some time before the occurrence. 7. There is no dispute that the appellant's wife Kantibai met with violent death and this has been proved by the prosecution beyond any shadow of doubt. Dr. Vijay Singh Thakur (PW-12), posted at Primary Health Centre, Shamshabad on 30th May 2001, conducted an autopsy on the dead body of Smt. Kantibai, wife of accused Gorelal. He noted superficial marks of scratches on the face, below mandible bone on neck, chin, chest, back, buttock which were ante-mortem in nature. He also noted the ligature marks ad-measuring 10" x 1/2 " around the neck. Another ligature mark ad-measuring 8" x 1/2" was seen just below mandible bone. On internal examination, he noted that Hyoid bone was fractured and neck mussels were reddish and laryngeal cartilage and tracheal ring and carotid vessels were badly injured. He opined that all the injuries found on the dead body were ante-mortem except one ligature mark ad-measuring 8" x 1/2" below mandible bone which was found after death and the cause of death was strangulation due to asphyxia. The mode of death was homicidal duration of which was about 24 hrs. prior to postmortem. He again confirmed his opinion as mentioned in his postmortem report (Ex. P/22) with query report (Ex. P/23). There is, therefore, no doubt that it is a case of gruesome murder perpetrated in a most cruel arid inhuman manner. 8. The mode of death was homicidal duration of which was about 24 hrs. prior to postmortem. He again confirmed his opinion as mentioned in his postmortem report (Ex. P/22) with query report (Ex. P/23). There is, therefore, no doubt that it is a case of gruesome murder perpetrated in a most cruel arid inhuman manner. 8. To ascertain the of age of the accused Smt. Phullo bai (PW-1), mother of accused was examined and to prove the guilt against the accused, the prosecution examined Babulal (PW-1), Shyambai @ Suniya bai (PW-2), parents of the deceased, Malkhan (PW-5), brother-in-law of the accused, Kallobai (PW-6), sister of deceased, Poonam (PW-7), a child witness, who happened to be niece of deceased. All these witnesses have stated that deceased was happy in her matrimonial house and she died by hanging herself. These witnesses neither implicated the accused in crime nor supported the prosecution version and ultimately were declared hostile. Other witnesses Bundel Singh (PW-3) and Ram Prasad (PW-4) who were neighbors and local residents of the area also did not implicate the accused in commission of crime and turned hostile. They specifically stated that the deceased died by hanging herself. 9. S.N. Mukharjee (PW-10), In-charge of the police Station Shamshabad deposed in his evidence that he recorded the Marg Report on the information given by Kailash, son of Jai Singh, which was registered at No. 13/2001. Since the crime was of suspected death relating to the newly weds, he sent the Marg diary for conducting further inquiry to SDO (P) of the area. The preliminary Marg inquiry on the spot was done by A.S. Tomar, ASI (PW-9) and he prepared the spot-map (Ex. P/6), seizure memo (Ex. P/3) of the broken bangles. Then, he issued notices to the witnesses and thereafter prepared the memo of dead body, vide Ex. P/8 in the presence of Naib Tahsildar/Executive Magistrate of the area. He noted the injury marks on the face of dead body and he sent the dead body for autopsy. Thereafter part of the inquiry and investigation was done by Sajid Farid Bapu SDO (P) of the area and Manish Aggrawal (PW-13), C.S.P. Vidisha. After inquiry and postmortem report, S.N. Mukharjee In-charge of the Police Station (PW-10) lodged the FIR and registered the crime under Sections 304-B and 302 of I.P.C. against the accused. Thereafter part of the inquiry and investigation was done by Sajid Farid Bapu SDO (P) of the area and Manish Aggrawal (PW-13), C.S.P. Vidisha. After inquiry and postmortem report, S.N. Mukharjee In-charge of the Police Station (PW-10) lodged the FIR and registered the crime under Sections 304-B and 302 of I.P.C. against the accused. Manish Aggrawal (PW-13), C.S.P., Vidisha during investigation on 22nd June 2001 arrested the accused and prepared his arrest memo (Ex. P/9). During arrest, on information regarding weapon by the accused, he prepared memorandum under Section 27 of the Evidence Act, vide Ex. P/10 and on production of one lathi by the accused, the witness prepared its seizure memo (Ex. P/4). He also recorded the case diary statements of the concerned witnesses and to clear the doubts, he wrote a query memo (Ex. P/21) to the Medical Officer, who performed the autopsy on the dead body of Smt. Kantibai, wife of accused. 10. Hence, with regard to the alleged motive, there is absolutely no evidence in support of it. Babulal (PW-1), Shyambai @ Suniya bai (PW-2), parents of the deceased, Malkhan (PW-5), brother-in-law of the accused, Kallobai (PW-6), sister of deceased all the witnesses admitted in their evidence that the accused and the deceased had a happy conjugal life and they had no dispute or quarrel. These witnesses were declared hostile. It is most unfortunate that the learned Judge used their statements made to the police and recorded under Section 161 of Cr.P.C. as substantive evidence and held that there was motive for murder though such motive was not strong. It is most unfortunate that the learned Judge is not aware of the provisions of Section 162 of Cr.P.C. which impose a complete ban on the use of statements recorded under Section 161 Cr.P.C. for the purpose of corroboration or as substantive evidence. Such a statement can be used by the accused and with the permission of the court, by the prosecution, only for the purpose of contradicting the witness who has made such a statement in the manner provided by Section 145 of the Evidence Act and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness but for the purpose only of explaining any matter referred to in the cross-examination. Therefore, considering the evidence of aforesaid witnesses, in the opinion of this Court, the prosecution in this case has hopelessly failed to prove the alleged motive for murder. 11. On perusal of the statement of Dr. Vijay Singh Thakur (PW-13), it is noted that the scratches found on the face below chin, below mandible bone, on neck, chest, back and on buttock were ante-mortem which might have come by inflicting blows with a lathi recovered from the accused-appellant. No such query was made by the I.O. by sending the weapon to the doctor who performed the autopsy on the dead body of Smt. Kantabai to know as to whether the injuries as mentioned in the postmortem can be caused by the lathi. The doctor who performed the autopsy did not mention in postmortem nor did he depose in his court statement about the finger marks found on the neck or other marks of article used in strangulation on the dead body during autopsy, which may suggest that injuries found on the dead body were ante-mortem and death was homicidal in nature. So, the medical evidence could not come out from clog. Moreover, on perusal of the ocular evidence, none of the witnesses connected the accused for causing death of his wife Smt. Kantabai. The trial judge on medical evidence presumed that neck of deceased was pressed forcibly consequence of which mandible bone of her neck was fractured and to save herself she got scratches over her body and thereafter by pressing her neck by strangulation her death was caused. The trial Judge also presumed without ocular evidence that the accused with an intention to cause death inflicted such injuries which were sufficient in the ordinary course of nature to cause death of his wife Smt. Kantabai whereas it is not established by circumstances that the culprit was only accused who was responsible for death of deceased by strangulation. Therefore, this Court is of the view that only on medical evidence in the absence of supporting evidence either direct or circumstantial, it can not be safely said that the accused-appellant is responsible for homicidal death of his wife Smt. Kantabai. The prosecution utterly failed to prove the guilt of murder against the accused appellant. 12. In Abdul Said Vs. Therefore, this Court is of the view that only on medical evidence in the absence of supporting evidence either direct or circumstantial, it can not be safely said that the accused-appellant is responsible for homicidal death of his wife Smt. Kantabai. The prosecution utterly failed to prove the guilt of murder against the accused appellant. 12. In Abdul Said Vs. State of M.P. (AIR 2011 SC 5701), the Hon. Apex court held that :- Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. 13. Let us next consider the circumstance No. 2. From our above discussions, it would be clear that the only circumstance that has been proved by the prosecution in this case is that the appellant and the deceased were last seen together before the incident. Let us now consider if this circumstance alone is sufficient to warrant a conclusion that the appellant committed the murder of his wife. It is well settled that in cases where the evidence is of a circumstantial nature, the circumstances, duly established, should be consistent only with the hypothesis of the guilt of the accused person, i.e. the circumstances should be of such a nature as to reasonably exclude every hypothesis but the one proposed to be proved. To put it in other words, the chain of evidence must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused person. In such cases, the court must guard itself against the danger of allowing conjecture or suspicion to take the place of legal proof. In Hanumant Vs. To put it in other words, the chain of evidence must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused person. In such cases, the court must guard itself against the danger of allowing conjecture or suspicion to take the place of legal proof. In Hanumant Vs. State of Madhya Pradesh ( AIR 1952 SC 343 ), the Hon. Supreme Court laid down the rule regarding the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone as follows: 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 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." This case has been uniformly followed by the Supreme Court in a large number of later decisions. Upon an analysis of this decision, the Supreme Court has laid down 5 principles which constitute the 'Panchasheel' of proof of a case based on circumstantial evidence in Sarad Birdhi Chand Sarda's case (1984 Cri LJ 1738) (SC) (supra). The following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' be 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. The circumstances concerned 'must or should' be 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. 14. Further, in Sohel Mehaboob Shaikh Vs. State of Maharashtra ( AIR 2009 SC 2702 ), Hon. Apex Court held as under:- 4. The case of the prosecution is based on certain circumstances and the Trial Court and High Court found those circumstances to be sufficient to warrant the conviction of the appellant. The High Court found that the accusations for dowry torture were not established and therefore, it acquitted the appellant of the charge relating to Section 498A of the I.P.C. 5. The judgment of the High Court is assailed on the ground that the circumstances highlighted by the Trial Court and the High Court do not form a complete chain in order to rule out the innocence of the accused and to unerringly point at the accused to be author of the crime. 6. The counsel for the respondents on the other hand, supported the judgment of the High Court. 7. The three circumstances brought on record by the prosecution and highlighted by the Trial Court and High Court are as follows : (i) Deceased Sofiya met with an unnatural death; (ii) Deceased Sofiya had died in the room which was solely and exclusively occupied by her and her husband i.e. accused No. 1; (iii) The appellant has not offered any explanation in respect of the incident in which deceased Sofiya had sustained burns. 8. We have gone through the evidence on record and we find that the High Court has arrived at some conclusions which, in our opinion, are based on surmises and conjectures, without there being any evidence to support the conclusions. That being so, we find that the charge against the appellant has not been established. 9. 8. We have gone through the evidence on record and we find that the High Court has arrived at some conclusions which, in our opinion, are based on surmises and conjectures, without there being any evidence to support the conclusions. That being so, we find that the charge against the appellant has not been established. 9. The first and third circumstances cannot be considered to be relevant either separately or collectively. So far as the second circumstance is concerned, there is no evidence to show circumstantially that accused was present in the room at the time of occurrence. The time of occurrence, even by approximation has not been established by the prosecution. 15. In the light of the above, in our opinion, a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. 16. The only circumstance appears in this case is that the appellant and the deceased were last seen together in their house on the day of occurrence. In our considered opinion this circumstance alone does not by itself lead to the irresistible inference that the accused must have murdered the deceased. It may at best raise suspicion but suspicion, however, strong, cannot take the place of legal proof. In Lakhan Pal v. State of Madhya Pradesh AIR 1979 SC 1620 : 1979 Cri L.J. 1217 Hon. Supreme Court has held that in prosecution for offence of murder the mere fact that the accused and the deceased (the real brother of the accused) were together in the field prior to the occurrence does not by itself lead to the irresistible inference that the accused must have murdered the deceased. 17. According to the learned Additional Sessions Judge, silence on the part of the accused or absence of explanation of his subsequent conduct consistent with his innocence is itself an additional link which completes the chain. In a case resting on circumstantial evidence if the prosecution has not otherwise succeeded in establishing a chain of events which with reasonable certainty fixes the liability on the accused, the mere failure of the accused to offer any explanation consistent with his innocence cannot by itself be considered as a circumstance against the accused. In a case resting on circumstantial evidence if the prosecution has not otherwise succeeded in establishing a chain of events which with reasonable certainty fixes the liability on the accused, the mere failure of the accused to offer any explanation consistent with his innocence cannot by itself be considered as a circumstance against the accused. In a case where the various links have been satisfactorily made out and they point to the accused as the probable assailant with reasonable definiteness and in proximity to the deceased as regards time and situation and if upon proof of such facts the accused offers no explanation which might afford a reasonable basis for a conclusion consistent with his innocence, such absence, of explanation or false explanation is itself an additional link which completes the chain. In Sarda's case (supra), Hon. the Supreme Court has observed that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. Where the links in the chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court. 18. We have already seen that the chain is incomplete and the only circumstance proved by the prosecution is insufficient to point to the guilt of the accused with reasonable definiteness. So the infirmity or lacuna in the prosecution case cannot be cured or supplied by a false defence or absence of explanation. 19. In view of what has been stated above, it must be held that the prosecution has failed to prove the charge under Section 302 of I.P.C. against the appellant beyond reasonable doubt and the judgment of conviction and sentence passed by the trial court cannot be sustained. In the result, we allow the appeal and set aside the judgment of conviction and sentence passed by the trial court. In the result, we allow the appeal and set aside the judgment of conviction and sentence passed by the trial court. The appellant, who is in jail be forthwith set at liberty, if not wanted in connection with any other case.