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2013 DIGILAW 190 (CHH)

BOLWARAM v. STATE OF M. P.

2013-07-01

Radhe Shyam Sharma

body2013
JUDGMENT 1. This appeal is directed against judgment dated 06-09-1996 passed by Additional Sessions Judge, Jashpurnagar, District Raigarh in Sessions Trial No. 122/96. By the impugned judgment, accused/appellant Bolwaram has been convicted under Sections 304 Part II and 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs.500/-, in default of payment of fine, to further undergo simple imprisonment for 2 months for the offence under Section 304 Part II IPC and rigorous imprisonment for 3 years and to pay fine of Rs.200/-, in default of payment of fine, to further undergo simple imprisonment for 1 month for the offence under Section 201 IPC, with a direction to run the sentences concurrently. 2. Case of the prosecution, in brief, is as under: On 28-02-1996, deceased Nekul had gone to Village Manora along with his wife Jeneviva (PW-10). In Village Manora, they met with appellant Bolwaram. Thereafter, they went together to the house of Kuntibai (PW-5) and they consumed there country made liquor (handiya). Jeneviva (PW-10) came back to her village and the appellant and the deceased went to the house of the appellant where some quarrel took place between them. The appellant assaulted the deceased with a tangi. The deceased died. The appellant threw the dead body of the deceased in Laljhariya Nala with the help of co-accused Samunder Singh (acquitted). When the deceased did not return, Jeneviva (PW-10) started search of the deceased and she went to the house of the appellant, but the appellant did not allow Jeneviva (PW-10) to enter his house. Jeneviva (PW-10) lodged missing report (Ex.-P/7D) in Police Station Jashpurnagar. Jahuran Bibi (PW-1) and Safa Khan (PW-4) (father of the deceased) went to the house of the appellant. The house of the appellant was smeared with/spreaded up with cow-dung. Thereafter, intimation was given to Police Station Jashpurnagar vide Ex.-P/7D. Pant, shirt, hair, lathi, pieces of bones, one pair chappal and one tangiya were found in Laljhariya Nala. Having seen above articles, it was identified that the pant and chappals were belongings of the deceased. Dehati Merg (Ex.-P/8) and thereafter Dehati First Information Report (Ex.-P/9) were recorded. The Investigating Officer reached the place of occurrence and the plaster of wall of the house of the appellant was seized vide Ex.-P/1. Having seen above articles, it was identified that the pant and chappals were belongings of the deceased. Dehati Merg (Ex.-P/8) and thereafter Dehati First Information Report (Ex.-P/9) were recorded. The Investigating Officer reached the place of occurrence and the plaster of wall of the house of the appellant was seized vide Ex.-P/1. Blood stained soil and plain soil were also seized from the place of occurrence vide Ex.P/2. One full-shirt, one half-shirt, hair of head, 8 pieces of bone and pieces of wood, which were stained with blood were seized from the place of occurrence vide Ex.-P/3. Memorandum statement of the appellant was recorded under Section 27 of the Evidence Act vide Ex.-P/4 and at his instance, a tangi was seized from the appellant vide Ex.-P/5. The seized articles were sent to Primary Health Centre, Manora for examination vide EX.-P/11. Doctor R.S. Paikara (PW-9) examined the bones and gave his report vide Ex.-P/11A. The seized articles were sent to Forensic Science Laboratory, Raipur. Report (Ex.P/12) was received therefrom. In Ex.-P/12, it is found that article A - full-pant of the appellant, article B - tangi, article C - soil, article D1 - shirt, article D2 - pieces of shirt, article E - pieces of full-pant and article F - pieces of wood were found stained with blood. After completion of the investigation, charge sheet was filed against the appellant and co-accused Samunder Singh in the Court of Additional Chief Judicial Magistrate Jashpurnagar, who, in turn, committed the case to the Court of Session, Raigarh, from where it was received on transfer by the Additional Sessions Judge, Jashpurnagar, who conducted the trial and convicted and sentenced the appellant as mentioned above and acquitted co-accused Samunder Singh of the charges framed against him. 3. Shri Raghavendra Pradhan, learned counsel for the appellant argued that the dead body of the deceased was not recovered. The prosecution has not been able to prove that the death of the deceased was homicidal in nature. The report was lodged after 25 days. He further argued that the finding of guilt recorded on the basis of evidence of last seen together, memorandum statement of the appellant and recovery of tangiya, clothes and broken wood is unreasonable. The above circumstances are not proved beyond reasonable doubt. The report was lodged after 25 days. He further argued that the finding of guilt recorded on the basis of evidence of last seen together, memorandum statement of the appellant and recovery of tangiya, clothes and broken wood is unreasonable. The above circumstances are not proved beyond reasonable doubt. Even if the circumstances are taken on their face value, it cannot be said that it was the appellant who committed murder of the deceased. Learned counsel further argued that the seized articles were not properly identified. It is well settled that a strong suspicion is no substitute for a proof, therefore, the finding of guilt recorded by the learned Additional Sessions Judge is not sustainable and the appellant is entitled for acquittal. 4. Shri Anand Verma, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court. 5. I have heard learned counsel for the parties at length and have also perused the record of Sessions Trial No. 122/96. Admittedly, there is no eye witness to the incident and the case of the prosecution is based on the circumstantial evidence. The main circumstances, which the learned Additional Sessions Judge appear to have taken note of, are as follows: (i) The deceased was last seen in the company of the appellant; (ii) The blood stained soil was seized from the house of the appellant; (iii) Clothes of the appellant and deceased were seized which were stained with blood; (iv) Memorandum statement of the appellant and at his instance, recovery of tangi. 6. In the instant case, it is admitted that the dead body of the deceased was not recovered. 7. In Prithipal Singh etc. Vs. State of Punjab & another etc. 2012 AIR SCW 594, the Hon'ble Supreme Court held thus: "28. CORPUS DELICTI - Recovery of : In Mani Kumar Thapa v. State of Sikkim, Air 2002 SC 2920 : (2002 AIR SCW 3409), this Court held that in a trial for murder, it is neither an absolute necessity nor an essential ingredient to establish corpus delicti. The fact of the death of the deceased must be established like any other fact. Corpus delicti in some cases may, not be possible to be traced or recovered. The fact of the death of the deceased must be established like any other fact. Corpus delicti in some cases may, not be possible to be traced or recovered. There are a number of possibilities where a dead body could be disposed of without any trace, therefore, if the recovery of the dead body is to be held to be mandatory to convict an accused, in many a case, the accused would manage to see that the dead body is destroyed to such an extent which would afford the accused complete immunity from being held guilty or from being punished. What is, therefore, required in law to base a conviction for an offence of murder is that there should be reliable and plausible evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence albeit the dead body may not be traced. (See also : Ram Chandra & Anr. v. State of Uttar Pradesh, AIR 1957 SC 381 ; Ashok Laxman Sohoni & Anr. v. The State of Maharashtra, AIR 1977 SC 1319 ; and Rama Nand & Ors. v. The State of Himachal Pradesh, AIR 1981 SC 738 ). Therefore, in a murder case, it is not necessary that the dead body of the victim should be found and identified, i.e. conviction for offence of murder does not necessarily depend upon corpus delicti being found. The corpus delicti in a murder case has two components - death as result, and criminal agency of another as the means. Where there is a direct proof of one, the other may be established by circumstantial evidence." 8. In the instant case, the dead body of Nekul (deceased) was not traced, but looking to the evidence of Jahuran Bibi (PW-1), Safa Khan (PW-4), Kuntibai (PW-5), Thakur Ram (PW-6), Nakul Singh (PW-8) and Jeneviva (PW-10), it is established that the deceased had gone to the house of the appellant along with Jeneviva (PW-10). Jeneviva (PW-10), Kuntibai (PW-5) and Thakur Ram (PW-6) specifically deposed that the appellant, the deceased and Jeneviva (PW-10) came to their house and they consumed liquor. Thereafter, the deceased was not found alive. 9. Jeneviva (PW-10), Safa Khan (PW-4) and Jahuran Bibi (PW-1) specifically deposed that pieces of bone, hair, full-pant, shirt were found in the Nala. The full-pant and shirt were belonging to the deceased. Thereafter, the deceased was not found alive. 9. Jeneviva (PW-10), Safa Khan (PW-4) and Jahuran Bibi (PW-1) specifically deposed that pieces of bone, hair, full-pant, shirt were found in the Nala. The full-pant and shirt were belonging to the deceased. Nakul Singh (PW-8) deposed that full-pant, shirt, hair, pieces of bones and pieces of wood were seized from Laljhariya Nala. The heirs of the deceased identified the full-pant and shirt that they where belonging to the deceased. Looking to the circumstances of the case, it is established that the deceased died and his death was homicidal in nature. 10. So far as the above circumstances are concerned, the learned Additional Sessions Judge held in paragraphs 18 and 19 of the impugned judgment that the deceased was last seen in the company of the appellant, the deceased did not return his house and no satisfactory explanation was offered by the appellant regarding non return of the deceased. The learned trial Judge further held that the memorandum statement of the appellant and the seizure at his instance were proved. He further held that the circumstantial evidence indicates that it was the appellant who committed murder of the deceased. 11. In Bodhraj alias Bodha and others Vs. State of Jammu and Kashmir (2002) 8 SCC 45 , the Hon'ble Supreme Court observed as under: "17. ........... The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153) (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should 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." 12. In Hatti Singh Vs. In Hatti Singh Vs. State of Haryana (2007) 12 SCC 471 , the Hon'ble Supreme Court observed as under: "27. In Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172 , this Court noticed: (SCC p. 181, paras 27-28) "27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration. 28. In State of U.P. v. Satish, (2005) 3 SCC 114 , this Court observed : (SCC p. 123, para 22) "22. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. .........." (See also State of Goa Vs. Sanjay Thakran and another (2007) 3 SCC 755 ) 13. Now, I shall proceed to examine the circumstantial evidence adduced by the prosecution in order to prove the offence against the appellant and to see whether the prosecution has been able to prove the offence against the appellant in conformity with the above principles. 14. Jeneviva (PW-10) deposed that deceased Nekul was her husband. The appellant is her brother-in-law (Jija). She further deposed that she had gone to the house of the appellant situated at Village Manora along with her husband (the deceased). At about 2.00 pm, she returned to her Village Kantabel and the deceased again went to the house of the appellant. 14. Jeneviva (PW-10) deposed that deceased Nekul was her husband. The appellant is her brother-in-law (Jija). She further deposed that she had gone to the house of the appellant situated at Village Manora along with her husband (the deceased). At about 2.00 pm, she returned to her Village Kantabel and the deceased again went to the house of the appellant. The deceased did not return in the night, therefore, on the next morning, at about 8.00 am, she again went to the house of the appellant and enquired about her husband (the deceased). The appellant replied that the deceased had gone to his house. At that time, the house of the appellant was smeared with/spreaded up with cow-dung. 15. Kuntibai (PW-5) and Thakur Ram (PW-6) deposed that the deceased came to their houses along with the appellant and Jeneviva (PW-10). They consumed liquor, thereafter they had gone out of their houses. Jahuran Bibi (PW-1) also deposed in similar fashion. 16. Jahuran Bibi (PW-1) and Jeneviva (PW-10) deposed that Jeneviva (PW-10) went to the house of the appellant and enquired about the deceased. Jahuran Bibi (PW-1) deposed that she went to the house of the appellant and at that time the house of the appellant was locked. On being peeped through a hole of the door, blood like spots were seen in the house of the appellant. 17. Looking to the evidence of Jeneviva (PW-10), Jahuran Bibi (PW-1), Kuntibai (PW-5) and Thakur Ram (PW-6), it appears that the deceased had gone to the house of the appellant and thereafter the deceased and the appellant went to the house of Kuntibai (PW-5) and consumed liquor and thereafter the deceased, Jeneviva (PW-10) and the appellant went to the house of the appellant. 18. So far as the evidence of last seen together is concerned, the prosecution adduced evidence of Jeneviva (PW-10), Kuntibai (PW-5) and Thakur Ram (PW-6). From their evidence, it appears that on the fateful day, the deceased had gone to the house of the appellant. Thereafter, the deceased was not found alive and his clothes and bones were found in Laljhariya Nala. From their evidence, it appears that on the fateful day, the deceased had gone to the house of the appellant. Thereafter, the deceased was not found alive and his clothes and bones were found in Laljhariya Nala. The last-seen theory comes into play where the time gap between the point of time when the appellant and the deceased were last seen alive and the deceased was found dead is so small that possibility of any person other than the appellant being the author of the crime becomes impossible. In the instant case, the time gap between the appellant and the deceased were last seen alive and the clothes and bones were found is long. When the time gap is long, the possibility of any other person coming in between the appellant and the deceased exists. In absence of any other positive evidence to conclude that the appellant and the deceased were last seen together, it would be hazardous to come to conclusion that the appellant is guilty. The deceased was last seen alive in the company of the appellant in the evening of 28-02-1996 and the bones were recovered on 23-03-1996, i.e., after 25 days of the incident. I am of the view that in the above situation, this circumstance would be hardly incriminating against the appellant. 19. Now, I shall examine whether the recovery of tangi and clothes is sufficient to hold the appellant guilty? 20. Other circumstances are pieces of bones, clothes and blood stained soil, memorandum statement of the appellant and recovery of tangi at the instance of the appellant. 21. Sub-Inspector Nakul Singh (PW-8) deposed that he seized pieces of wood of putus, shirt, pant and pieces of bones from Laljhariya Nala. He further deposed that the house of the appellant was opened in presence of witnesses. The floor was smeared with cow-dung where blood like spots were seen. Panchnama (Ex.-P/1) was prepared by him. He further deposed that he seized blood stained soil from the place of occurrence. He further deposed that he recorded the memorandum statement of the appellant vide Ex.-P/4 and at the instance of the appellant, a tangi was seized from the appellant vide Ex.-P/ 5. Dwarika Soni (PW-2) supported the evidence of Sub-Inspector Nakul Singh (PW-8). 22. The seized tangi was sent to Forensic Science Laboratory, Raipur for chemical examination and a report (Ex.-P/12) was received therefrom. Dwarika Soni (PW-2) supported the evidence of Sub-Inspector Nakul Singh (PW-8). 22. The seized tangi was sent to Forensic Science Laboratory, Raipur for chemical examination and a report (Ex.-P/12) was received therefrom. So far as evidence of seizure of tangi at the discovery statement of the appellant is concerned, I find that according to FSL Report (Ex.-P/l2), blood stains were found over the tangi but it was not proved by the prosecution that the blood stains were of human blood and further they were matching with the blood group of the deceased. 23. In Ashish Batham Vs. State of Madhya Pradesh AIR 2002 SC 3206 , the Hon'ble Supreme Court held that mere suspicion, however, strong or probable it may be is not an effective substitute for the legal proof required to substantiate the charge of commission of a crime and however grave the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between 'may be true' and 'must be true' and this basic and golden rule only helps to maintain the vital distinction between 'conjectures' and 'sure conclusions' to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record. 24. In the instant case, there are circumstances of finding of clothes, hair and bones, which, according to the prosecution, were of the deceased. It is difficult to connect the appellant with the offence on the basis of abovementioned seizure of clothes, hair and bones. It is difficult to rely upon these circumstances as incriminating circumstances. Therefore, the circumstantial evidence of memorandum statement, recovery of tangi and above articles is not convincing and reliable and cannot be based for conviction of the appellant. 25. I have carefully examined the entire evidence available on record. I am of the view that the learned Additional Sessions Judge has erred in law resting the conviction of the appellant on the circumstantial evidence of last seen together, memorandum statement and recovery of tangi. I am of the view that the conviction of the appellant under Sections 304 Part II and 201 of the Indian Penal Code cannot be sustained on the basis of the above circumstantial evidence. I am of the view that the conviction of the appellant under Sections 304 Part II and 201 of the Indian Penal Code cannot be sustained on the basis of the above circumstantial evidence. I find that the chain of circumstances is not at all complete. 26. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Sections 304 Part II and 201 of the Indian Penal Code are set aside. The appellant is acquitted of the charges framed against him. It is stated that he is on bail. His bail bonds are continued for a period of 6 months from today. Appeal Allowed.