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2013 DIGILAW 1011 (MP)

Man Singh S/o Ramchandra v. State of M. P.

2013-08-27

MOOL CHAND GARG, SHANTANU KEMKAR

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JUDGMENT : Per Shantanu Kemkar, J.:- This criminal appeal under Section 374 of the Code of Criminal Procedure, 1973 is directed against the judgment of conviction dated 28.03.2002 passed by the 4th Additional Sessions Judge, Dewas in Sessions Trial No.162/2001 convicting the appellant under Sections 376 and302 of the Indian Penal Code and thereby sentencing him for life imprisonment under both the sections and imposing fine of Rs.1,000/- and Rs.2,000/- respectively for each offence, with default clause. 2. The prosecution case, in brief, is that on 11.06.2001 at about 11.45 in the night, an FIR was lodged by Ramesh at Police Chowki, Balon stating therein that in the morning at 08.00 AM his daughter Babitabai, aged 12 years, had taken the goats to Jungle for grazing. However, when she did not return till 01.00 PM, which was her usual time of return, he and his wife made her search in the jungle, at the places where she used to go. When she was not found even after extensive search, they went to the well of Gopi Chamar. In the well, they found the dead body of his daughter floating on the water. Ramesh with the help of Parmanand Rathore (PW-3) and Hukum Patidar (PW-8) retrieved the body of the deceased out of the well. On the report of Ramesh, the investigation was started by the Police. During investigation, Police recorded statement of resident of villagers. The Police drawn panchnama Ex.P/7 of the dead body and the dead body was sent for postmortem. Spot map was prepared on the basis of the information given by the witnesses. On the basis of the statement recorded by the Police, appellant Man Singh was arrested. On his memorandum, blood stained ‘Darata’ was seized from his hut. The appellant was sent for medical examination. Clothes of the appellant and the deceased and pubic hairs of the deceased were sent for chemical examination to the Forensic Science Laboratory. Reports Ex.P/18 and P/19 were received form the Forensic Science Laboratory. After completion of the investigation, challan was submitted before the trial Court. 3. The appellant abjured his guilt and pleaded false implication. In order to prove its case, the prosecution examined as many as eleven witnesses. In defence, the appellant did not lead any evidence. 4. Reports Ex.P/18 and P/19 were received form the Forensic Science Laboratory. After completion of the investigation, challan was submitted before the trial Court. 3. The appellant abjured his guilt and pleaded false implication. In order to prove its case, the prosecution examined as many as eleven witnesses. In defence, the appellant did not lead any evidence. 4. The trial Court, after considering the postmortem report of the deceased, the FSL report and the circumstantial evidence of last seen together of the deceased with the appellant as also the fact of seizure of ‘Darata’ from the appellant on the basis of memorandum Ex.P/4, convicted the appellant and sentenced him, as aforesaid. Feeling aggrieved, the appellant has filed this appeal. 5. Shri Vikas Jain, learned counsel for the appellant has argued that in the absence of complete chain of evidence necessary for holding the appellant guilty on the basis of circumstantial evidence, the trial Court has committed error in convicting the appellant. 6. On the other hand, Shri R.S. Parmar, learned Panel Lawyer appearing for the respondent / State supported the impugned judgment of conviction and has argued that the appellant having been seen last in the company of the deceased and the ‘Darata’ being recovered on the basis of his memorandum, the trial Court has rightly convicted the appellant. 7. Having gone through the medical and oral evidence led by the prosecution before the trial Court, it is clear that the prosecution case is based upon circumstantial evidence. The prosecution has been able to prove only to the extent that the deceased Babitabai had gone to graze goats in jungle in the morning, but did not return and that she was seen grazing the goats with the appellant and that her body was found in the well of Gopi Chamar. 8. The question as to whether the theory of last seen together of the deceased with the appellant has been proved by the prosecution to the extent so as to hold the appellant guilty of the offence, as alleged, is required to be seen. In this regard, the evidence of Shahjad (PW-2) and Parmanand (PW-3) has been relied upon by the trial Court. Shahjad (PW-2) has stated that on the date of incident, he had seen the deceased in the company of appellant while grazing goats. In this regard, the evidence of Shahjad (PW-2) and Parmanand (PW-3) has been relied upon by the trial Court. Shahjad (PW-2) has stated that on the date of incident, he had seen the deceased in the company of appellant while grazing goats. He deposed that they were at a distance from him at which on shouting, one can hear other. Thereafter, he saw both of them going towards the field of Gopi Chamar. He has stated from that the place where he had seen them together while grazing goats, the field of Gopi Chamar is about one and half Kms. 9. Thus, it is clear that the place where the appellant was last seen with the deceased is at a distance of about one and half Kms. from the place from where the body of the deceased was retrieved. There is absolutely no evidence that the appellant was last seen at or near the place from where the body of the deceased was recovered. Therefore, the evidence of last seen in the present case, cannot be relied upon and on that basis, the conviction of the appellant cannot be sustained. Mere recovery of blood stained ‘Darata’ from the hut of the appellant at his instance, more particularly, when there is no FSL Report about matching of the blood group of the appellant with the blood group of the deceased, cannot be made basis of his conviction. 10. In the case of Sujit Biswas v. State of Assam 2013 Cr.L.R. (SC) 589, the Supreme Court after considering various earlier judgments, including Hanumant Govind Nargundkar & another v. State of MP, AIR 1952 SC 343 ; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017 ; and Ramesh Harijan v. State of UP, AIR 2012 SC 1979 , has held that suspicion, however, grave it may be, cannot take the place of proof and there is a large difference between something that ‘may be’ proved, and something that ‘will be proved’. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between ‘may be’ and ‘must be’ is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. This is for the reason that the mental distance between ‘may be’ and ‘must be’ is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ‘may be’ true and ‘must be’ true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between ‘may be’ true and ‘must be’ true, the Court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. 11. In the case of Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773 , the Supreme Court held that another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence. 12. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , the Supreme Court has held that the facts so established should be consistent only with the hypothesis of the guilt of the accused. There should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. 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. Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence. 13. In M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 , this Supreme Court held that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused, and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consistent with his guilt. 14. In Sujit Biswas v. State of Assam (supra), the Supreme Court further observed that in a case of circumstantial evidence, the judgment remains essentially inferential. Inferences are drawn from established facts, as the circumstances lead to particular inferences. The Court must draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused. 15. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused. 15. Thus, in our considered view, the prosecution has not been able to complete the chain of evidence so that it can be held that it is the appellant who alone and none else has committed the crime. 16. As a result, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and sentence passed by the trial Court is set aside. The appellant is acquitted. He be released forthwith, if not required in any other case.