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2018 DIGILAW 426 (ALL)

SURESH GOND v. STATE

2018-02-17

ARVIND KUMAR MISHRA I, SARAL SRIVASTAVA

body2018
JUDGMENT By the Court.—Heard Sri A.K. Pandey, learned amicus curiae for the accused -appellant, Sri Rajiv Sharma, learned AGA assisted by Sri Rajiv Kumar Mishra, learned AGA for the State and perused the record. 2. The present jail appeal has been preferred by the accused-appellant against the judgment and order dated 26.4.2005 passed by the Sessions Judge, Sonbhadra, in Session Trial No. 79 of 2002 (State v. Suresh Gond) arising out of Case Crime No. 102 of 2002 under Section 302 IPC, Police Station Babhani, District Sonbhadra whereby the accused-appellant has been sentenced to imprisonment for life. 3. The stream of events leading up to this appeal, as discernible from record, appears to be that the informant Janakdhari Singh Gond PW-1 lodged the written report at Police Station Babhani, District Sonbhadra on 11.4.2002 at 10:20 a.m. at Case Crime No. 102 of 2002, under Section 302 IPC, alleging therein, inter alia, that today in the morning around 8:00 a.m., the informant’s uncle Jeet Ram Gond told him that his (Jeet Ram Gond) son Suresh and his wife had gone away from home on 9.4.2002 (Tuesday) after locking the house. He (Jeet Ram Gond) searched for them but he could not trace them. He came back home then he saw slippers of his daughter-in-law lying outside the room. He became apprehensive then he (Jeet Ram Gond - father of the accused) got the lock broken in the morning at 7:30 a.m. when he found his daughter-in-law lying dead on a cot. Some sharp edged weapon was used by causing blow on her neck and she was killed. The weapon Baluwa (Farsa) was also lying in the room. It appears that his son Suresh has murdered his wife with Baluwa (Farsa) and has fled away from the home. On this information being given to the informant, he (the informant) also arrived on the spot where he saw Sukawariya (deceased), wife of accused Suresh, aged 22 years lying dead on a cot. The father of Suresh (accused) and neighbours have gathered on the spot. The written report is Ext. Ka-1. 4. Relevant to mention that description of report Ext. Ka-1 was written at the dictation/information of Jeet Ram Gond, father of the accused-appellant. 5. Contents of the aforesaid information were taken down in the concerned Check FIR Ext. The father of Suresh (accused) and neighbours have gathered on the spot. The written report is Ext. Ka-1. 4. Relevant to mention that description of report Ext. Ka-1 was written at the dictation/information of Jeet Ram Gond, father of the accused-appellant. 5. Contents of the aforesaid information were taken down in the concerned Check FIR Ext. Ka-4 at Case Crime No. 102 of 2002 under Section 302 IPC, Police Station Babhani, District Sonbhadra on 11.4.2002 at 10:20 a.m. On the basis of entries so made in the check F.I.R., a case was registered against the accused-appellant in the relevant G.D. at serial No. 11 on 11.4.2002 at 10:20 a.m. at aforesaid case crime number at Police Station Babhani under aforesaid section of I.P.C. against accused-appellant. Copy of general diary is Ext. Ka-5. 6. Record reflects that after the information was given at the police station, the investigation ensued and the same was taken over by S.I. Keshav Ram, the Investigating Officer PW-12 who gave information to the concerned Magistrate on wireless and arrived on the spot alongwith Naib Tehsildar, Sunil Kumar Srivastava. The inquest of the deceased was prepared by him under supervision of Naib Tehsildar, which was completed around 4:00 p.m. on 11.4.2002, copy whereof is Ext. Ka-8. 7. In the opinion of the inquest witnesses and the Investigating Officer, it was suggested that post-mortem of the dead body of Sukuwaria be ensured in order to ascertain real cause of death. Therefore, relevant papers were prepared in the process and the same were signed by the Naib Tehsildar and the Investigating Officer which papers pertain to Photonash, letter to CMO, Challan dead body, specimen seal etc and the same are marked as Ext. Ka-9, Ext. Ka-10, Ext. Ka-11 and Ext. Ka-12. Apart from above, two letters were also sent which have been proved as Ext. Ka-13 and Ext. Ka-14. 8. The post-mortem examination on the cadaver of the deceased Sukuwaria was done by Dr. Uttar Pradesh Pandey, PW-2, on 12.4.2002 at 1:30 p.m. in the mortuary at District Sonbhadra wherein he noted the following ante-mortem injury : 9. 1. Incised wound 15 cm x 4 cm x 5 cm deep extending from right ear posterior up to back of neck. Cervical vertebra cut. Right carotid artery cut. Spinal cord cut. Blood in tissue present. 10. 1. Incised wound 15 cm x 4 cm x 5 cm deep extending from right ear posterior up to back of neck. Cervical vertebra cut. Right carotid artery cut. Spinal cord cut. Blood in tissue present. 10. In the opinion of the doctor, cause of death was syncoped, haemorrhage due to incised wound on neck. Foetus of 36 weeks was also discovered in the post-mortem examination. Duration was stated to be 36 hours. This post-mortem examination report is Ext. Ka-3. 11. As the investigation progressed, the Investigating Officer after noting contents of the relevant documents recorded statement of the witnesses and prepared memo of simple and blood stained clay roll Ext. Ka-15 and also prepared memo of weapon of assault Baluwa (Farsa) Ext. Ka-2, and prepared site plan of the place of the incident Ext. Ka-16, searched for the accused and also recorded statement of the prosecution witness Bhola Ram and arrested the accused-appellant on 20.4.2002, prepared site plan of the place of arrest and memo of recovery of Key, the memo of the aforesaid recovery and arrest is Ext. Ka-17 and after completing the investigation, filed the charge-sheet against the accused-appellant Ext. Ka-18. 12. Pursuant thereto, the case of the appellant was committed to the Court of Sessions from where it was made over for trial to the learned II-Additional Sessions Judge, Sonbhadra who heard the appellant on the point of charge and after recording his satisfaction regarding prima facie ground for framing charge under Sectin 302 IPC, framed charge under the aforesaid section of IPC. Charge was read over and explained to the appellant who denied the charge and opted for trial. 13. In furtherance of the proceedings, the prosecution produced in all 12 witnesses. A brief sketch of witnesses is ut-infra : 14. Janakdhari PW-1 is the informant, he has lodged the written report which written report was dictated to him by Jeet Ram Gond, father of the accused Suresh Gond. Dr. Uttar Pradesh Pandey PW-2 has conducted autopsy on the cadaver of the deceased Sukuwaria. Constable Kanhaiya Lal PW-3 made relevant entries in the Check FIR and general diary of date 11.4.2002 and registered the case against the accused-appellant at Police Station Babhani, District Sonbhadra. Bhola Ram PW-4 is witness of extra-judicial confession made to him by the accused-appellant. Dr. Uttar Pradesh Pandey PW-2 has conducted autopsy on the cadaver of the deceased Sukuwaria. Constable Kanhaiya Lal PW-3 made relevant entries in the Check FIR and general diary of date 11.4.2002 and registered the case against the accused-appellant at Police Station Babhani, District Sonbhadra. Bhola Ram PW-4 is witness of extra-judicial confession made to him by the accused-appellant. Bachha Singh PW-5 is witness of fact of arrest of the accused-appellant and recovery of key and has proved the arresting and recovery memo Ext. Ka-6. Shobh Nath PW-6 is also witness of extra-judicial confession made to him by the accused-appellant. Dev Narain Singh PW-7 is witness of fact of process of breaking of lock of the room inside which the dead body of Sukuwaria was lying and has proved memo of the broken lock Ext. Ka-7. Manbodh PW-8 is also witness of extra-judicial confession. Ram Singh PW-9 is witness of fact of arrest of the accused-appellant and has proved Ext. Ka-8. Hans Ram PW-10 is also witness of recovery of key and has accepted his signature on recovery memo Ext. Ka-6. Sunil Kumar Srivastava PW-11 is Naib Tehsildar who got inquest report prepared under supervision of the Investigating Officer, S.I. Keshav Ram. S.I. Keshav Ram PW-12 is the Investigating Officer, he has detailed various steps, he took in completing the investigation and filing the charge-sheet against the accused-appellant. 15. Except as above, no other testimony adduced. Therefore, evidence for the prosecution was closed. The statement of the accused-appellant was recorded under Section 313 Cr.P.C. wherein he has stated that he is innocent and has been falsely implicated in this case. 16. After that, the trial Court of its own instance got recorded testimony of Jeet Ram Gond as CW-1 who is father of the accused-appellant. He has testified to fact that he got the report lodged through Janakdhari Singh PW-1. He broke the lock of the room where the dead body of his daughter-in-law was found on a cot and weapon of assault. 17. He has testified to fact that he got the report lodged through Janakdhari Singh PW-1. He broke the lock of the room where the dead body of his daughter-in-law was found on a cot and weapon of assault. 17. Thereafter, the statement of the accused-appellant was again recorded under Section 313 Cr.P.C. on point of testimony of Jeet Ram Gond, CW-1 and he was put specific question as to what he has to say about testimony of Jeet Ram Gond, CW-1, his father and about his absence from the spot whereupon the accused-appellant expressed his inability to say anything by stating that he does not know anything. 18. No evidence, whatsoever, was led by the defence. Thereafter, the evidence for the defence was closed. 19. The case was heard on merit by the learned trial Judge who after appraisal of facts and circumstances and evaluation of the evidence of the case, recorded finding of conviction against the accused-appellant and sentenced him to imprisonment for life under Section 302 IPC vide impugned judgment and order dated 26.4.2005. 20. Consequently, this appeal. 21. Argument has been advanced by the learned amicus curiae for the accused-appellant to the ambit that this is the case based purely on circumstantial evidence and all the links in the chain of circumstances are not complete but the chain is incomplete and there is no irresistible conclusion pointing to fact that the accused-appellant alone committed the offence, whereas, the fact is that various links in the chain of circumstances are so scattered that perpetrator of the crime may be any person. In this case, strong suspicion has been acted upon and formed basis of conviction which is against tenets of the criminal jurisprudence and the pivotal factual aspect of the prosecution version stands exposed as to for what reason and motive, the accused-appellant killed his wife, has not been brought forth, what to say about proof of motivating force which has not been suggested by the prosecution as the motivating force which facilitated commission of the offence by the accused-appellant. 22. While concluding argument, it has been anxiously urged that the Court below did not ponder over the aforesaid factual as well as legal aspects of the case and has wrongly returned the finding of conviction and awarded sentence against him, which finding of conviction is based more on conjecture and surmises than on evidence on record. 23. 22. While concluding argument, it has been anxiously urged that the Court below did not ponder over the aforesaid factual as well as legal aspects of the case and has wrongly returned the finding of conviction and awarded sentence against him, which finding of conviction is based more on conjecture and surmises than on evidence on record. 23. While retorting to the aforesaid argument, learned AGA has submitted that in this case, the husband of the deceased Sukuwaria owes an explanation as to under what circumstances, she died when the accused-appellant was residing with her. The abscondence of the accused-appellant from the scene of the occurrence which is house of the appellant, though came to light on 11.4.2002 but he in fact disappeared on 9.4.2002 upto 20.4.2002, is also conclusive proof of complicity of the accused-appellant in the incident. 24. Learned AGA has further added that the written report was lodged at the instance of the father of the accused. The written Ext. Ka-1 entails vital fact that father of the accused-appellant also expressed apprehension that the accused-appellant might have committed murder of the deceased Sukuwaria with Baluwa (Farsa). It is correct that no specific motive have been proved or suggested by the prosecution but that alone would not throw away the case of the prosecution. 25. Learned AGA summed up by adding that there is no point in sparing real culprit and implicating an innocent person in this case. The testimony of the prosecution witnesses of fact does inspire confidence and there is no element of doubt in their testimony. The instant appeal lacks force. 26. We have considered the above submissions, as well. 27. In the light of the submissions so made and in the light of the charge under Section 302 IPC, the point for adjudication of this appeal relates to fact whether the prosecution has been able to prove and establish guilt of the accused-appellant beyond all reasonable doubt ? 28. Before we start factual scrutiny of this case, it would be convenient for the sake of proper understanding to observe that it is admittedly a case purely based on circumstantial evidence, that is to say, no one saw the actual occurrence and death of the deceased Sukuwaria is also admitted fact that her dead body was found lying on a cot inside the room. 29. 29. It is established jurisprudential norm that in circumstantial evidence case, various links of the circumstances should form a complete chain and this chain must be complete in all respect so as to leave aside every hypothesis of innocence of the accused-appellant, and must lead to conclusive finding that in all probability, it was the accused and accused alone who perpetrated the crime to the exclusion of others. 30. Now we begin with scrutiny of merit of the case. 31. Bare perusal of the written report Ext. Ka-1 when scrutinized in line of the testimony of Janakdhari Singh Gond PW-1, then it comes out that this written report was scribed/written at the instance of Jeet Ram Singh CW-1 - father of the accused-appellant - who on 9.4.2002 found his son Suresh Gond (accused-appellant) and daughter-in-law Sukuwaria (deceased) missing and the room of the house was locked then he made search for both of them and in his bid to trace out their whereabouts he also went to the parental home of the deceased Sukuwaria but he did not find both his son and daughter-in-law, there too, whereupon, he came back to home when he noticed slippers of his daughter-in-law lying in front of the locked room, then in the presence of father of his daughter-in-law and others, he got broken lock of the room when he alongwith others saw the dead body of his daughter-in-law Sukuwaria lying on a cot inside the room where Baluwa (Farsa), weapon of assault was also seen lying inside the room. 32. The written report has been proved by Janakdhari Singh Gond PW-1 and he has stated that whatever was dictated to him by Jeet Ram CW-1, was written in the report and he has proved fact that he went to lodge the report which report, as per testimony of Kanhaiya Lal PW-3, was noted at Police Station Babhani on 11.4.2002 at 10:20 a.m. Thereafter, the investigation took place and inquest was prepared and the dead body of the deceased Sukuwaria was sent for post-mortem examination, when post-mortem examination was conducted on 12.4.2002 at 1:30 p.m., one ante-mortem injury extending on neck region of the body was found and the accused-appellant was arrested on 20.4.2002 by the Investigating Officer, Keshav Ram PW-12 and on his pointing out, key of the lock of the room was also recovered and memo of the same was prepared. The Investigating Officer also prepared site plan of the place of arrest and recovery and after completing the investigation filed charge-sheet against the accused-appellant. Insofar as various circumstances of this case are concerned, the same may be reckoned as under: (1) The deceased Sukuwaria was wife of the accused-appellant. (2) The accused-appellant was residing with his wife in the house where the dead body was discovered. (3) The disappearance of the deceased and the accused-appellant from the place of the occurrence which is house of the accused-appellant from 9.4.2002. (4) The house/room remained locked from 9.4.2002 till 11.4.2002 up to the time of recovery of dead body Sukuwaria at 7:30 a.m. inside the room. (5) Recovery of the dead body of the deceased Sukuwaria was made by Jeet Ram CW-1 on 11.4.2002 after he got broken the lock of the room. (6) Abscondence of the accused from 11.4.2002 to 20.4.2002. (7) The arrest of the accused-appellant made by the Investigating Officer on 20.4.2002 and recovery of key of the broken lock on his pointing out. (8) Extra-judicial confession made by the accused to several prosecution witnesses. (9) The quintessence of the entire episode motive behind the commission of the offence is vital and essential link in the chain of circumstances. 33. Insofar as the point of death of the deceased Sukuwaria is concerned, that is admitted to both the sides but insofar as factum of recovery of key by the Investigating Officer at the pointing out of the accused-appellant on 20.4.2002 from western side of ‘Nala’ (drain) in village Nadhira, Nawa Tola Dudhawa, recovery memo whereof is Ext. Ka-6, is concerned, recovery becomes doubtful in view of the explicit testimony of the recovery witnesses that Daroga Ji got their signatures on blank papers which signatures have been identified by the witnesses of recovery. One recovery witness submitted that his signature was obtained at the police station. Therefore, factual aspect of recovery of key at the pointing out of the accused-appellant from the above place becomes dubious. 34. Now it would not be useful to discuss the other factual aspects of this case, for the reason that in circumstantial case, the core and essence of the entire prosecution case rests on the hypothesis of motive, that is to say that there should be proved existence of motivating force which impelled and incited the accused-appellant to commit the crime in question. 35. 35. At the time of argument, learned AGA drew blank on the point when express query was raised by us about existence of the motivating force which worked behind the crime. Thus it can be said that the entire prosecution case fails to bring out any motive, general or specific, explicit or implicit which may lead us to form an opinion that the murder of the deceased Sukuwaria was committed for any special or general cause or reason. There is no reason or motive assigned as to how and why and for what the accused-appellant was interested in killing his wife - deceased Sukuwaria. 36. At this stage, contention raised on behalf of the accused-appellant to the extent that suspicion howsoever strong it may be, would never form basis of conviction is approved by us. On this particular factual aspect of motive, even the trial Court is silent and no evidence or circumstance exists from which we can gather factum of motive or prime reason as the very cause behind the crime. Once the prosecution has failed, out and out, to establish motive behind the crime then entire hypothesis of guilt of the accused-appellant falls squarely to the ground. May be that the accused-appellant went away on 9.4.2002 with his wife (deceased Sukuwaria) but there is no evidence proving fact that he was seen at the relevant point of time when murder of the deceased Sukuwaria was committed in the room in question. No one saw him locking the room and departing alone from his house. Merely because some extra-judicial confession was made to the two persons that alone would not fasten culpability on the accused-appellant and would not form basis of any conviction because the motivating force for committing the crime has neither been suggested nor proved by the prosecution. May be, that someone else would have intruded in the room would have committed the crime, would have locked the room after committing the murder of the deceased Sukuwaria. Possibility of outsider committing the offence cannot be ruled out. 37. May be, that someone else would have intruded in the room would have committed the crime, would have locked the room after committing the murder of the deceased Sukuwaria. Possibility of outsider committing the offence cannot be ruled out. 37. Here the case of the prosecution has not reached the stage that legal presumption under Section 106 of the Evidence Act is to be drawn, for the reason that recovery of key of the lock of the room has not been satisfactorily proved to have been effected at the pointing out of the accused-appellant because Daroga Ji obtained signatures of the recovery witnesses on blank papers and this is explicitly established in the testimony of the witnesses of recovery. 38. On this particular factual aspect of the case, the trial Court erred in law while it observed that it was up to the accused-appellant to have come out with explanation and for reasons best known to him, he committed murder of his wife Sukuwaria. This is purely hypothetical and erronous finding giving clue to strong suspicion in shape and form of proved guilt which by no stretch of imagination or analogy can be considered to be correct legal position and the trial Court erred in law while it recorded conviction against the accused-appellant. 39. For the reasons aforesaid, we agree with the contention raised by learned amicus curiae for the accused-appellant that all the links in the chain of circumstances are incomplete and they do not form a complete chain. Here in this case what to say about various links, quintessence of the prosecution case or say the very substratum - motive - has neither been suggested nor proved by the prosecution. That being the case, the prosecution has not been able to establish all links in the chain of circumstances and chain remained incomplete. Learned trial Court while appraising evidence and marshaling facts on record misread the evidence and based its conviction more on whims and imaginations than on evidence on record, leaving aside the guiding principles to be applied in cases based on circumstantial evidence. In case evidence and circumstances of the case allude to alternative way to alternative hypothesis and give rise to possibility that the perpetrator of the crime can be another person also than the accused then benefit of doubt should and must be given to the accused. 40. In case evidence and circumstances of the case allude to alternative way to alternative hypothesis and give rise to possibility that the perpetrator of the crime can be another person also than the accused then benefit of doubt should and must be given to the accused. 40. In view of the above scrutiny of facts, circumstances and evidence of this case, the judgment and order dated 26.4.2005 passed by the Sessions Judge, Sonbhadra, in Session Trial No. 79 of 2002 (State v. Suresh Gond) arising out of Case Crime No. 102 of 2002 under Section 302 IPC, Police Station Babhani, District Sonbhadra, is set aside. 41. Consequently, the present appeal is allowed. 42. The appellant is acquitted of charge under Section 302 IPC. 43. In this case, the accused-appellant is in jail. He shall be set at liberty forthwith if he is not wanted in connection with any other case. However, the accused-appellant shall ensure compliance of Section 437A Cr.P.C. 44. Let a copy of this order/judgment be certified to the Court below for necessary information and follow up action.