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2013 DIGILAW 112 (CHH)

BHOKLO ALIASBUDHRAM v. STATE OF M. P.

2013-03-21

PRITINKER DIWAKER, YATINDRA SINGH

body2013
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 17.09.1996 passed by Additional Sessions Judge, Janjgir (Bilaspur) in Sessions Trial No. 347/1994 convicting the accused/appellant and absconding accused Fekuram for the offence punishable under Sections 302/34 and 450 IPC and sentencing both of them to undergo imprisonment for life u/s 302/34 and RI for seven years u/s 450 IPC. 2. In this case there are two deceased persons namely Nepal Chand and his wife Maina Bai. According to the case of the prosecution, in the intervening night of 17/18.08.1994 both these persons were murdered. On 18.08.1994 at about 8.10 a.m. FIR Ex.P-1 was lodged by Jagannath Prasad Sahu (PW-1) and at about 8.20 a.m. and 8.25 a.m. merg intimations Ex.P-2 & P-3 respectively were also recorded at his instance. Jagannath Prasad Sahu had informed the police that his neighbours Nepal Chand and Maina Bai were murdered by someone with the help of sharp edged weapon. In the FIR it is alleged that Nepal Chand was a retired Malaria Inspector who was residing with his wife in the neighbourhood. On that day at about 5 a.m. Jagannathnin (PW-2) who used to supply water in the house of Nepal Chand had come to his house and informed that though the door of Nepal Chand was open yet nobody came out from there even after being called out by her. Thereafter, he along with Jagannathnin (PW-2) went to the house of Nepal Chand and found that the door was simply closed but not bolted. Allegedly, when he entered the kitchen of Nepal Chand after pushing open the door, he found the dead body of Main a Bai lying there with number of injuries on it and her face covered with cloth and blood was also there nearby. It is also alleged that door of the room of Nepal Chand was bolted from outside and when they both entered therein, dead body of Nepal Chand was also found there with his face covered with cloth and injury was caused on the neck and blood was lying on the floor. It is also alleged that on the previous night at about 7 a.m. He had seen Nepal Chand and Maina Bai in their house and some unknown person had committed their murder with sharp edged weapon. It is also alleged that on the previous night at about 7 a.m. He had seen Nepal Chand and Maina Bai in their house and some unknown person had committed their murder with sharp edged weapon. It is alleged that Nepal Chand and Maina Bai were not having enmity with anyone in the village and that after the incident it was narrated by him to village Kotwar, Up-Sarpanch and other villagers. Based on this FIR, offence under section 302 IPC was registered against unknown persons. Postmortem on the dead body of Nepal Chand was conducted vide Ex.P-16 and that of Maina Bai vide Ex.P-18, by Dr. D.C. Choudhary (PW-4) and according to him cause of death was shock due to excessive bleeding. Further case of the prosecution is that during investigation memorandum of the present appellant vide EX.P-7 was recorded on 21.08.1994 at 8.15 p.m. in which he has stated that he along with co-accused Fekuram had entered the house of Nepal Chand for commission of theft and there they first committed the murder of Nepal Chand and Maina Bai and then committed theft of various ornaments, Saris, radio, torch, plates (three in number), one urn and cash of Rs.250. Based on this memorandum, vide EX.P-13 three saris and one steel knife were seized on 22.08.1994 from the pond, commonly known as Parri-pond. It is alleged that one vest (Banyan), one big and one small plate, one brass plate, one radio and one Lungi were seized under EX.P-14. Memorandum of co-accused Fekuram was recorded on 21.08.1994 at 8 p.m. Vide EX.P-8 and based on that, seizure of certain ornaments wrapped in a polythene bag buried in a pit was made vide Ex. P-11 and P-12. Vide Ex.P-22 the articles so seized were identified by Jagannath Prasad Sahu (PW-2) to be of deceased Nepal Chand and Maina Bai vide EX.P-13 & P-14. Though as per the case of the prosecution in the seized steel knife blood like stains were noticed, there is no FSL report on record. After completion of Investigation charge-sheet was filed on 22.09.1994 under sections 302 and 460 IPC against the present appellant and co-accused Fekuram. 3. In support of its case the prosecution has examined 09 witnesses. Though as per the case of the prosecution in the seized steel knife blood like stains were noticed, there is no FSL report on record. After completion of Investigation charge-sheet was filed on 22.09.1994 under sections 302 and 460 IPC against the present appellant and co-accused Fekuram. 3. In support of its case the prosecution has examined 09 witnesses. Statements of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 4. By the judgment impugned the Court below has convicted the present appellant and co-accused Fekuram as mentioned in paragraph No.1 of this judgment. However, after conviction the co-accused Fekuram went absconding and has not preferred any appeal there against and this appeal is only with respect to the present appellant. 5. Heard counsel for the parties and perused the material available on record. 6. Counsel for the accused/appellant submits that conviction of the accused/appellant is based on memorandum Ex.P-7 and recovery based on that vide-Ex.P-13 & P-14. He submits that in the memorandum EX.P-7 and recovery Ex.P-13 & P-14 there are lacunae in the same and merely on the basis of such memorandum and seizure accused/appellant cannot be convicted. According to the counsel for the accused/appellant recovery of articles belonging to the deceased does not lead to presumption of murder. He submits that incident had taken place in the intervening night of 17/18.08.1994, that all the villagers were aware about the murder of Nepal Chand and Maina Bai, that the memorandum of accused/appellant was recorded on 21.08.1994, that the present appellant had abundant opportunity to abscond but his presence in the village shows that he was not having any guilty mind. He submits that identification of the articles was not done by the family members rather it was done by Jagannath (PW-1) who was the neighbour of the deceased and had a personal interest in the case because he was the main affected person. He further submits that before retirement of Nepal Chand, Jagannath (PW-1) was taking care of entire agricultural land belonging to him and after retirement he started living in the village on account of which Jagannath (PW-1) lost the benefit of agricultural land and thus being a suspected person he cannot be relied upon. He further submits that before retirement of Nepal Chand, Jagannath (PW-1) was taking care of entire agricultural land belonging to him and after retirement he started living in the village on account of which Jagannath (PW-1) lost the benefit of agricultural land and thus being a suspected person he cannot be relied upon. He submits that when door of the house of Nepal Chand was found to be open, Jagannathnin Bai (PW-2) should have immediately entered his house but her conduct in going back to the house of Jagannath (PW-1) and then bringing him with her to the house of Nepal Chand does not appear to be natural. He submits that further conduct of Jagannath Prasad Sahu (PW-1) and Jagannathnin Bai (PW-2) is unnatural where they directly entered the kitchen of the deceased and found dead body of Maina Bai. He submits that if someone usually enters the house of someone he would not go to the kitchen directly and Jagannath (PW-1) and Jagannathnin Bai (PW-2) have disclosed so because they were aware that dead body of Maina Bai was in the kitchen. In relation to seizure made under Ex.P-13 & P-14, it has been argued by counsel for the appellant that as the Police could not catch the real culprit and it was a case of double murder creating sensation in the village, police was looking for someone to make a scapegoat and unfortunately the present appellant and co-accused Fekuram who are poor persons fell in its trap and that seizure of articles was made from a village pond which was an open place accessible to everyone under Ex.P-13 & P-14. According to the counsel for the appellant, but for the recovery of certain articles at the instance of accused/appellant, there is no other evidence against him and therefore it cannot be said that chain of circumstances is complete and thus merely on the basis of such weak circumstantial evidence accused/ appellant cannot be convicted. 7. On the other hand, supporting the judgment impugned counsel for the respondent/state submits that though there is only one circumstance against the accused/appellant i.e. seizure of few household articles at his instance but it was made from the village pond which was within the knowledge of accused/appellant. 7. On the other hand, supporting the judgment impugned counsel for the respondent/state submits that though there is only one circumstance against the accused/appellant i.e. seizure of few household articles at his instance but it was made from the village pond which was within the knowledge of accused/appellant. He submits that in two plates seized at the instance of the accused/appellant, name of Maina Bai was engraved and thus there is no reason to doubt the fact that those plates were of Maina Bai and theft was committed by the appellant with the help of co-accused Fekuram. He submits that identification of articles by Jagannath Prasad (PW-1) cannot be doubted because he was neighbour of Nepal Chand and Maina Bai and therefore must be aware of the details thereof. 8. Jagannath (PW-1) has stated that on 18.08.1994 the accused persons went to the house of Nepal Chand and Maina Bai and slit their throat with the help of knife. Nepal Chand, according to this witness, after retirement started living in his own house. According to him, Jagannathnin Bai (PW-2) who used to supply water in the house of Nepal Chand, told him that even on being called out by her nobody came out from his house though the door was open. Thereafter she tried to switch on the light but as the current was not there, she lit the chimney and saw the dead body of Maina Bai lying in the kitchen with her neck slit. Jagannathnin Bai (PW-2) is also stated to have informed this witness that when she went into the bed room of the deceased persons and tried to switch on the right but as current was not there and there was complete dark, she lit the chimney and saw that the dead body of Nepal Chand was lying on the floor in front of T.V. with his neck slit and it was bleeding and then she narrated the entire incident to the village Kotwar, Sarpanch and other persons of the village followed by lodgment of the report. This witness has further stated that as while lodging the report he was not aware as to who had committed the murder of deceased persons, he did not disclose the name of anyone to the police. According to this witness, the injuries on the neck of the deceased persons appeared to have been caused by a sharp edged weapon. This witness has further stated that as while lodging the report he was not aware as to who had committed the murder of deceased persons, he did not disclose the name of anyone to the police. According to this witness, the injuries on the neck of the deceased persons appeared to have been caused by a sharp edged weapon. The information regarding the incident was given by this witness in the Pamgarh police station and based on that the police had recorded merg Ex.P-2 and Ex.P-3. This witness along with Jagannathnin Bai (PW-2) is stated to have seen the household articles lying scattered in the house of the deceased persons. He has stated that Nepal Chand did not have any issue through Mainabai but he had two issues namely Shambhoo and Gouri through his first wife who were living in Kolkata. In the village, Nepal Chand was called as doctor and his wife as doctrin and they did not have any ill-will with anyone. According to him, before death Maina Bai was wearing several ornaments but when he saw her body after death, no ornament was there on it. He went on to state that since he used to frequent to the house of Nepal Chand, he was aware of the fact that he used to keep some cash in the bank and some in the house. The ornaments which Maina Bai used to wear, were identified by this witness. In cross-examination, this witness has stated that 2-4 years after his arrival in the village, Nepal Chand had purchased 18 acres of land and when he went to his workplace, he used to take care of his entire agricultural land. According to him, when after retirement Nepal Chand came back to the village he took back the possession of the same. He has further stated that except him no one else was aware of the money transaction or other relevant information pertaining to Nepal Chand and his wife. He has denied that son of the deceased used to ask him about the accounts being maintained by his father namely Nepal Chand. While lodging the report he had informed the police that to grab property of the deceased persons someone had killed them but if it is not written in the FIR he could not tell any reason for that. While lodging the report he had informed the police that to grab property of the deceased persons someone had killed them but if it is not written in the FIR he could not tell any reason for that. He also informed the police about the ornaments worn by deceased Maina Bai but if it is not mentioned in the FIR he could not say anything about that. This witness has denied that after arrival of Nepal Chand on his retirement, it is he who suffered a great loss. According to him, about three years prior to his retirement deceased Nepal Chand had sold nine acres of land and rest was sold one year prior to his death and an amount of Rs.1,50,000 was deposited by him in the name of Sambhoo. He has slated that five acres of land was sold for religious purposes. He has admitted that 1.25 acres of land was being cultivated by him on 50-50 partnership of the agricultural produce. 9. Jagannathnin (PW-2) has stated that she used to supply water m the house of Nepal Chand and Maina Bai and that on the date of incident at 5 a.m. she had gone there for that purpose. According to her, when she called out the deceased persons, there was no response from anyone. Thereafter she went to the house of Jagannath (PW-1) and when she returned along with him, door of the kitchen was open, she lit chimney and saw the dead body of Maina Bai lying there with her face covered by cloth, her throat was slit and blood was coming out. Thereafter she went in the bed room of Nepal Chand where his dead body was lying near the Television and the door of his room was bolted from outside, his throat was slit and blood was lying nearby. In the previous evening she saw both the deceased persons alive and when Maina Bai was alive she used to wear ornaments but when she saw her body after death no such ornaments were on it. Behaviour of the deceased persons, according to this witness, was very good with the villagers. This witness has further stated that on the previous evening she had gone to the house of Nepal Chand for taking money but as she had not received the same, she again went there and saw that Nepal Chand was sitting with Jagannath (PW-1). Behaviour of the deceased persons, according to this witness, was very good with the villagers. This witness has further stated that on the previous evening she had gone to the house of Nepal Chand for taking money but as she had not received the same, she again went there and saw that Nepal Chand was sitting with Jagannath (PW-1). She has admitted that when she used to supply water in the house of deceased persons, other persons also used to be there but it is incorrect to say that on that day number of persons were also there. She has stated that whenever she went to their house and called out, the deceased persons used to open the door. She has denied that for reaching kitchen of the deceased persons one had to pass through the bed room but then she has stated that bed room was near the kitchen only. Devraj Srivas (PW-3) is the witness to notices of inquest Ex.P-4 and P-5 and inquest itself Ex.P-6. He is also the witness to .memorandum Ex.P-7 of the accused/appellant and Ex.P-8 of the co-accused. He is also the witness to seizure of blood stained soil made from the spot under Ex.P3 and seizure made under Ex.P-10 to P-14. Dr. D.C. Choudhary (PW-4) is the witness who conducted postmortem examination on the bodies of the deceased persons vide Ex.P-16 & P-18 and opined the cause of death as shock due to excessive bleeding. Tukaram (PW-5) is the Patwari who prepared the spot map Ex.P-5. Syeed Abdul Hanif (PW-6) is the Tehsildar who conducted identification of the seized articles. He has stated that Jagannath (PW-1) and his wife Sahodara Bai (not examined) had identified the said articles by making proper mixing of the same. S.G. Pandey (PW-7) is the witness who did part of the investigation. Md. Israr (PW-8) is the Investigating Officer who has duly supported the case of prosecution. Raghunandan Prasad (PW-9) is the witness to inquest notice Ex.P-4 & P-5, memorandum of present appellant Ex.P-7 and that of co-accused Ex.P-8. He is also the witness to seizure made under Ex.P-11 to P-14 and has duly supported the case of prosecution. 10. Minute examination of the evidence available on record goes to show that in the intervening night of 17/18.8.1994 deceased Nepal Chand and Maina Bai were murdered in their own house. He is also the witness to seizure made under Ex.P-11 to P-14 and has duly supported the case of prosecution. 10. Minute examination of the evidence available on record goes to show that in the intervening night of 17/18.8.1994 deceased Nepal Chand and Maina Bai were murdered in their own house. Undisputedly, but for the memorandum Ex.P-7 of the accused/appellant and the recovery based thereon vide Ex.P-13 and P-14, there is absolutely no evidence against him. Even there is no evidence to the effect that the accused/appellant and co-accused Fekuram were last seen in the company of the deceased persons. The only point for determination by this Court is whether memorandum of the accused/appellant and seizure based on that is sufficient to uphold his conviction under Section 302/34 and 450 IPC. Though memorandum and seizure has been proved by the prosecution, the fact which cannot be ignored is that based on the memorandum of the accused/appellant seizure of three saris and one steel knife was made under Ex.P-13 and that of vest (Baniyan), one big and one small plate, one brass plate, one radio and one lungi was made under Ex.P-14. This seizure however has peen made from a village pond, an open place accessible to everyone. Thus the memorandum and seizure have to be scrutinized properly. It is relevant to note that Nepal Chand and Maina Bai were murdered in the intervening night of 17/18.8.1994 whereas memorandum of the accused/appellant was recorded on 21.8.1994 in the night hours and seizure was made under Ex.P-13 and P-14 on 22.8.1994. Prosecution has utterly failed to prove as to on what basis memorandum of the accused/appellant was recorded three days after the incident. It is not the case of the prosecution that the accused/appellant was pressurized by the police or that someone had informed the police that the offence was committed by the accused/appellant and the co-accused namely Fekuram. Recording of memorandum after three days creates a doubt especially when it has not been stated by the investigating officer that number of villagers were interrogated by him and during interrogation accused/appellant confessed his guilt. According to investigating officer (PW-8), on suspicion, statement of the accused/appellant was recorded but there is no evidence on record to show as to what was the reason for such suspicion and how all of a sudden statement of accused/appellant alone was recorded by the police. According to investigating officer (PW-8), on suspicion, statement of the accused/appellant was recorded but there is no evidence on record to show as to what was the reason for such suspicion and how all of a sudden statement of accused/appellant alone was recorded by the police. Argument of the counsel for the accused/appellant that Jagannath (PW-1) and Jagannathnin (PW-2) can also be suspected because the manner in which the prosecution case has been put forth by them, needle of suspicion also goes at them because evidence on record indicates that before retirement of deceased Nepal Chand from service, it is Jagannath (PW-1) who used to take care of his agricultural field and was the large beneficiary of it. Jagannath (PW-1) and Jagannathnin (PW-2) had seen the dead bodies at around 5 a.m., they remained in the house of deceased persons for about two hours without informing the incident to anyone and ultimately at about 8.10 a.m. FIR Ex. P-1 was lodged and at 8.20 a.m. and 8.25 a.m. merg intimation was recorded at the instance of Jagannath (PW-1). What they were doing in the house of deceased persons for more than two hours, no reasonable explanation for that has been offered by them. These two witnesses i.e. (PW-1 and PW-2) have given stereotype statement not only in the Court but to the police under Section 161 Cr. P.C. In diary statement, both of them have stated that on the previous night they were with Nepal Chand and Maina Bai and had seen Maina Bai wearing ornaments but in the morning they saw their dead bodies, the ornaments worn by her were missing. This again creates a doubt in the mind of this Court because seeing a woman simplicitor and seeing her wearing ornaments and describing them specifically are altogether different. Further, the articles so seized have been identified but here also the witness to identification is Jagannath (PW-1) and the manner in which he has identified the same again creates a doubt. Other witness to identification namely Sahodara Bai has not been examined by the prosecution. There is no evidence on record to show that why the prosecution has not made an attempt to get the articles identified by the near relatives of the deceased. Other witness to identification namely Sahodara Bai has not been examined by the prosecution. There is no evidence on record to show that why the prosecution has not made an attempt to get the articles identified by the near relatives of the deceased. Jagannath (PW-1) was residing near the house of the deceased and identification of the articles by him creates a doubt in the mind of this Court. Though it is not a requirement of law that identification of articles should be done by the relatives of the deceased only yet they are the best persons to do so. In the present case there is no evidence that any such effort was made by the prosecution. Another point which creates a doubt in the mind of this Court is that accused/appellant remained in the village throughout till his memorandum was recorded and he was arrested by the police in spite of abundant opportunity to run away and this shows that he was not having a guilty mind. Though in two plates name of Maina Bai was engraved, possibility of those articles having been thrown by someone else and showing the seizure thereof from the appellant in the pond cannot be ruled out. Most importantly, there is no FSL report on record to establish that in the seized articles including knife blood stains were found. Thus, merely on the basis of recovery of some of the articles of the deceased persons at the instance of the accused/appellant, this Court finds it difficult to hold him guilty for the commission of murder of Nepal Chand and Maina Bai. Possibility of someone else other than the accused/appellant being the assailant cannot be ruled and recovery of certain incriminating articles at the instance of the accused/appellant alone cannot from the basis of conviction. Conduct of Jagannath (PW-1) and Jagannathnin (PW-2) directly entering the kitchen of the deceased persons where the dead body of Maina Bai was found again creates a doubt in the mind of this Court. Conduct of Jagannath (PW-1) and Jagannathnin (PW-2) directly entering the kitchen of the deceased persons where the dead body of Maina Bai was found again creates a doubt in the mind of this Court. Further, conduct of Jagannathnin (PW-2) where everyday she used to supply water in the house of Nepal Chand and when on the fateful day she found the door of the house open and after calling nobody came out, she did not enter his house and went to call Jagannath (PW-1) directly without calling anyone from the neighbourhood also creates a doubt in the mind of this Court because normally when the door was open and nobody came out even after being called, Jagannathnin (PW-2) either should have waited or entered the house as there was no need to call Jagannath (PW-1) who was residing in the other house. 11. It has been consistently laid down by the Supreme Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukum Singh Vs. State of Rajsthan (1997) 2 SCC 99, Eradu Vs. State of Hyderabad AIR 1956 SC 316 , Earabhadrappa Vs. State of Karnataka (1983) 2 SCC 330 , State of U.P. Vs. Sukhbast, Balwinder Singh Vs. State of Punjab (1987) 1 SCC 1 and Ashok Kumar Chatterjee Vs. State of MP 1989 Supp (1) SCC 560. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram Vs. State of Punjab AIR 1954 SC 621 , it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to (negate) the innocence of the accused and bring the offences home beyond any reasonable doubt. 12. In Paddala Veera Reddy Vs. State of A.P. 1989 Supp (2) SCC 706, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 12. In Paddala Veera Reddy Vs. State of A.P. 1989 Supp (2) SCC 706, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10) '(1) the circumstances from which an inference of guilt is sought to be drawn, must 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 committee by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of ant 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.' 13. 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 direct or 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 his guilt; and (5) if there be any reasonable doubt of guilt of the accused, he is entitled as of right to be acquitted.' 14. In Hanumant Govind Nargundkar Vs. State of MP AIR 1952 SC 343 , it was observed thus: (AIR pp. 345-46, para 10) '10.... 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 first instance be fully established, and all the facts to established should be consistent only with the hypothesis of the guilt of the accused. 345-46, para 10) '10.... 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 first instance be fully established, and all the facts to 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.' 15. Thus in view of the aforesaid factual and legal position of the case, this Court is of the considered opinion that the prosecution has not been able to prove its case beyond reasonable doubt and that being so the benefit of doubt has to go to the accused/appellant. Though certain articles have been recovered on the basis of memorandum of accused/appellant, merely on the basis of such recovery conviction cannot be sustained. In this view of the matter, the appeal is allowed and the judgment impugned is hereby set aside. Accused/appellant is acquitted of the charge levelled against him. Accused/appellant is on bail. His bail bonds shall continue for a period of 6 months from today in view of Section 437-A of the Code of Criminal Procedure. Appeal Allowed.