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2017 DIGILAW 927 (MP)

Tularam v. State of M. P.

2017-08-23

NANDITA DUBEY, R.S.JHA

body2017
JUDGMENT Smt. Dubey, J. -- 1. This appeal has been filed by the appellants, being aggrieved by the judgment dated 29.6.1994, passed by First Additional Sessions Judge, Shahdol in S.T. No. 117/1993, whereby appellants Tularam and Smt. Ramkali have been found guilty for the offence punishable under section 302 read with sections 34 and 201 of the Indian Penal Code and have been sentenced to life imprisonment and fine of Rs.100/- each and rigorous imprisonment for three years and fine of Rs.100/- each respectively, in default of payment of fine, they have to suffer one month additional simple imprisonment for each offence, whereas appellant No.3 Bhola Prasad has been found guilty for an offence punishable under section 203 of the Indian Penal Code and has been sentenced to one year rigorous imprisonment and fine of Rs.100/-, in default of payment of fine, he has to suffer one month additional simple imprisonment. 2. The prosecution case, in a nutshell is that on 23.5.1993, deceased Chakrawati, who was pregnant, went to the house of one Bhaiyalal (PW6), complaining of stomach ache, where she was examined by Buddisen (PW1), who told her that she may deliver the child in two or three days. At that moment, appellant No.2 Ramkali came for the deceased and both of them went back to their house. The appellant No.1, thereafter, was seen leaving the house at about 10.30, by Buddhisen (PW1) and soon thereafter, upon raising the hue and cry by appellant No.2, one Narendra Kumar (PW8) reached the spot and upon raising the alarm by Narendra Kumar about fire in the house, other persons too rushed to the spot. The deceased was found lying dead in a burnt condition inside the room. Appellant No.3, Bhola Prasad rushed to the spot after being informed by one Durga Prasad (DW1) and thereafter, went to Police Station, Budhar and registered the Marg Intimation (Ex.P.-13) at about 3.30 P.M. that Chakrawarti had committed suicide by burning herself after bolting the door of the room from inside. 3. On the basis of the intimation, subsequent investigation followed. Panchnama was prepared and the dead body was sent for post-mortem. The post-mortem report (Ex.P-11), however-recorded that death of Chakrawarti took place by asphyxia due to throttling and the burn was post-mortem. 4. 3. On the basis of the intimation, subsequent investigation followed. Panchnama was prepared and the dead body was sent for post-mortem. The post-mortem report (Ex.P-11), however-recorded that death of Chakrawarti took place by asphyxia due to throttling and the burn was post-mortem. 4. The trial Court after analysing the oral and documentary evidence on record has recorded a finding against the appellants and sentenced the appellants as mentioned hereinabove, relying on the post- mortem report and the statement of Dr. B.K. Saxena (PW10) and Buddisen (PW1). 5. The learned counsel appearing for the appellants, very strongly contended that there is no evidence oral or documentary to indicate that the appellants have strangulated the deceased and set her body on fire. Taking this Court through the evidence of Ramswaroop (PW5), Bhaiyalal (PW6), Ashok Kumar (PW7) and Investigating Officer M.L. Sharma (PW13), it has been pointed out that these witnesses have totally denied the story put up by the prosecution and their case diary statements. It is stated that the important links in the circumstances are missing so as to make a complete chain. According to learned counsel, there must be clean and unequivocal proof and the inference of the guilty must be cogently and firmly established. 6. Per contra, the learned counsel for the State, taking this Court through the post-mortem report (Ex.P-11) and the statement of Dr. B.K. Saxena (PW10), has supported the judgment passed by the trial Court. 7. We have heard the learned counsel for the parties at length and carefully and meticulously perused the record of the trial Court and the evidence adduced by the prosecution. 8. This is a case of circumstantial evidence and in the case of circumstantial evidence, the settled law is that entire chain of circumstances linking the accused to crime must be established. We have, therefore, to see whether the prosecution has been able to establish the chain of circumstances connecting the appellants/accused persons to the crime. 9. 8. This is a case of circumstantial evidence and in the case of circumstantial evidence, the settled law is that entire chain of circumstances linking the accused to crime must be established. We have, therefore, to see whether the prosecution has been able to establish the chain of circumstances connecting the appellants/accused persons to the crime. 9. In the case of Hamumant v. State of M.P. [( AIR 1952 SC 343 )], the Supreme Court has observed : “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.” 10. Relying on the principles enunciated in Hanumant’s case (supra), the supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra [ AIR 1984 SC 1622 ], laid down five golden principles, which must be fulfilled before a case against an accused can be said to be fully established, as under : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahabrao Bobade and another v. State of Maharashtra [ (1973)2 SCC 793 , where the following observations were made : “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (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. 11. In the instant case, it is clear from the post-mortem report (Ex.P-11) and the statement of Dr. B.K. Saxena (PW10) that the burn marks on the body of the deceased were post-mortem and the death occurred due to asphyxia due to strangulation. The hyoid and thyroid bone was also found broken apart from other injuries on the body. There is no doubt that these injuries could not have been the result of fire and there is a strong suspicion that to erase the evidence of strangulation and other injuries, the body was put to fire. But there is no evidence on record to indicate that the appellants No.1 and 2 strangulated the deceased and put the body of deceased on fire. 12. In the present case, almost all the material witnesses examined by the prosecution have turned hostile. Ramswroop (PW5) has stated that the room in which the body of deceased was found, was bolted from inside and he had to cut open the thatched roof to gain entry inside the room. 12. In the present case, almost all the material witnesses examined by the prosecution have turned hostile. Ramswroop (PW5) has stated that the room in which the body of deceased was found, was bolted from inside and he had to cut open the thatched roof to gain entry inside the room. He has categorically stated that Tularam was not at home and the appellant No.2, who raised the alarm was outside the house and Bhola came later on. The statement of Ramswaroop (PW5) is corroborated by Ashok Kumar (PW7) and Narendra Kumar (PW8), who in no uncertain terms have stated that the door of the room, where the dead body of the deceased was found, was locked from inside and Ramswaroop (PW5) after cutting the thatched roof had entered the room and opened it. Narendra Kumar (PW8) has further stated that he met appellant No.1 Tularam at 8.30 a.m., when Tularam was going for his duty. All these witnesses have categorically denied their 161 statements and remained consistent in their cross-examination. Investigating Officer, M.L. Sharma (PW13) as well as Ramphal (PW3), father of the deceased have stated that on reaching the spot, they found that the roof was cut open. Arvind Kumar (DW2) employer of appellant No.1 has also stated and confirmed that appellant No.1 was in the shop at 11 O’Clock. Durga Prasad (DW1) has stated that he informed Bhola about the incident, who thereafter went to inform the police. His testimony remained unrebutted as no cross-examination was done on this point. 13. Buddisen (PW1), a chance witness has stated that he examined the nadi of deceased when she came to the house of Bhaiyalal. He claimed to have seen Tularam, appellant No.1, going from his house at 10.30, however, it has come in his cross-examination that he never met or talked to the deceased prior to the incident nor seen her face as she had covered her face by ‘parda’. He has further stated that he does not know Tularam by name and recognized him by face and has no prior relationship with Tularam. Under the circumstances, it would be unsafe to rely upon the evidence of Buddisen (PW1) and to leave the fate of accused in his hands. 14. He has further stated that he does not know Tularam by name and recognized him by face and has no prior relationship with Tularam. Under the circumstances, it would be unsafe to rely upon the evidence of Buddisen (PW1) and to leave the fate of accused in his hands. 14. The learned trial Court, despite observing that there is no satisfactory evidence available in the case for the motive of the offence, has convicted the appellants merely on the basis of presumption and speculation, relying on the evidence of Buddisen (PW1), who did not know appellant No.1 and his wife and allegedly met the deceased for the first time on the fateful day. It is settled law that suspicion, however strong, without conclusive evidence is not sufficient to justify the conviction. Reference may be made to the decision of Supreme Court in Pawan Kumar v. State of Haryana [ (2001)3 SCC 628 ], wherein it is held : 2. Before adverting to the rival contentions, be it noted that the entire matter hinges on circumstantial evidence. There is also however existing on record a dying declaration, but its effect on the matter shall be discussed shortly hereafter in this judgment. Incidentally, success of the prosecution on the basis of circumstantial evidence will however depend on the availability of a complete chain of events so as not to leave any doubt for the conclusion that the act must have been done by the accused person. While, however, it is true that there should be no missing links, in the chain of events so far as the prosecution is concerned, but it is not that every one of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. Circumstances of the strong suspicion without, however, any conclusive evidence are not sufficient to justify the conviction and it is on this score that great care must be taken in evaluating the circumstantial evidence. Circumstances of the strong suspicion without, however, any conclusive evidence are not sufficient to justify the conviction and it is on this score that great care must be taken in evaluating the circumstantial evidence. In any event, on the availability of two inferences, the one in favour of the accuses must be accepted and the law is well settled on this score, as such we need not dilate much in that regard excepting, however, noting the observations of this Court in the case of State of U.P. v. Ashok Kumar Shrivastava ( AIR 1992 SC 240 ) wherein this Court in para 9 of the report observed : “9. This Court has, time out of number observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise.” 3. The other aspect of the issue is that the evidence on record, ascribed to be circumstantial, ought to justify the inferences of the guilt from the incriminating facts and circumstances which are incompatible with the innocence of the accused or guilt of any other person. The observations of this Court is the case of Balwinder Singh v. State of Punjab [( AIR 1987 SC 350 )], lends concurrence to the above. 15. Having perused the oral and documentary evidence available on record, we are of the considered opinion that the prosecution has failed to establish the entire chain of circumstances to conclusively link the appellants with the crime. 16. 15. Having perused the oral and documentary evidence available on record, we are of the considered opinion that the prosecution has failed to establish the entire chain of circumstances to conclusively link the appellants with the crime. 16. In the light of the law laid down by the Supreme Court and in view of the peculiar facts and circumstances of the case, we are of the considered opinion that impugned judgment dated 29.6.1994 passed in S.T. No.117/1993 deserves to be and is hereby set aside. The appellants No.1 and 2 are acquitted of the alleged offences punishable under section 302 read with section 34 and section 201 of the Indian Penal Code and appellant No.3 is acquitted of the offence punishable under section 203 of the Indian Penal Code 17. The appeal filed by the appellants is allowed. The appellants, who are on bail shall be discharged of their bail bonds.