Anchi Devi vs State of Rajasthan

R.S. Chauhan, J.—Alleged to have killed her husband, and the discovery of a blood stained axe, the recovery of blood stained clothes of the accused, the evidence of last seen, have formed the basis for conviction and sentence of the appellant, Anchi Devi by judgment dated 8.7.2004 passed by Addl. Sessions Judge (Fast Track) No. 2, Sikar. Convicted of the said offence she has been sentenced to life imprisonment, imposed with a fine of Rs. 500/-, and further directed to undergo six months of rigorous imprisonment in default thereof.

Briefly the facts of the case are that on 5.9.2003 Shishpal (P.W.22) submitted a written report (Ex. P.34) to Mahavir Prasad (P.W.19). The written report when translated into English, reads as under:--

"To

The S.H.O., Police Station Khatushyamji, District Sikar.

Sub.: Regarding the assault on my brother Sitaram for the purpose of killing

Sir,

It is submitted that we are six brothers. My younger brother, Sitaram used to live with his family on a land situated on Bhagwanpura Road. Tonight there was an all-night celebration at the house of Chauthmal Mavliya in the praise of Ramdevji Maharaj. I, my younger brother, Sitaram and his wife, Anchi Devi attended the celebration the entire night. In the morning at 6 o''clock we came to our house situated at Bobasyali. While I went to attend my crop of moth, my brother Sitaram took butter-milk from my house and went to his well. Around 11:30 AM I and wife were sitting at home, when Sitaram''s wife, Anchi Devi came to our home. She told my wife that there are two strangers who have come to our well. They had come day-before-yesterday also. They came yesterday also. But we do not know them. She also told my wife that my brother has called me to his place. I went to my brother''s well by tractor. When I reached there, I found my brother lying in front of his house in a pool of blood. He was injured on his face and he was bleeding profusely. All his clothes were covered in blood. There was blood on the charpoy which was lying next to him, as well as on the floor. Even the charpoy inside the house, lying in the courtyard, there was plenty of blood around there. I asked Sitaram as to what had happened, but he did not reply. I ran back to my house, pulled out my jeep and with Sriram, Surajbhan, Boduram, Bhanwar Lal, Sagarmal and Nand Lal I rushed back to Sitaram''s well. We placed Sitaram in the jeep and rushed him to Khatushyamji Hospital. While my brother was unconscious, he was referred to Jaipur. Today around 11:30 AM two unknown persons have attacked my brother, with sharp-edged weapons, with the intention to kill him. I am submitting this report so that legal action can be taken.

Sd/- Shishpal, son of Kanaram, Caste Jat, resident of Bobasyali, Kothi Tan Chainpura (Dhingpur)."

On the basis of this report (Ex. P.34), the police chalked out a formal FIR (Ex. P.35) for offence under Section 452, 302 read with Section 34 IPC, and initiated the investigation.

On the same day, the police arrested the appellant. After a thorough investigation, the police submitted a charge-sheet before the Addl. Chief Judicial Magistrate, Danta Ramgarh. The case was committed to the Sessions Court, Sikar, where from it was transferred to the Court of Addl. District Judge (Fast Track) No. 2, Sikar. The appellant was charged for offence under Section 302 IPC.

In order to prove its case, the prosecution examined twenty-five witnesses, and submitted fifty documents. Although the defence did not examine any witness, it did submit seven documents. After completing the trial, the learned Judge convicted and sentenced the appellant as aforementioned. Hence, this appeal before this court.

During the trial, the prosecution unfolded its case through Shishpal (P.W.22), the complainant. In his testimony, basically Shishpal has reiterated the contents of the written report. In his examination-in-chief he does inform the court that he did not notice any footprint at the place of occurrence. In his cross-examination he denies the fact that he has given a written report (Ex. P.34) at the hospital. According to him, he never went to the hospital. He also claimed that Sitaram neither drank, nor ate Jarda Supari. He also claimed that the kulhari was recovered lying in the field amongst the crop. He also claims that on the date of occurrence, when the police came, it had thoroughly searched the house as well as the field. However, the axe was discovered on the next day. The said recovery has been supported by Hardeva Ram (P.W.4) and Suresh Kumar (P.W.17). According to him, the Kulhari and the clothes of the accused were sealed at the police station.

Manoj (P.W.1), Boduram (P.W.6), Sriram (P.W.7), Sagarmal (P.W.10) and Nand Lal (P.W.11), have also corroborated Shishpal''s testimony. According to them, Shishpal had come crying back into the village. He informed them that his younger brother, Sitaram has been assaulted and killed. They all rushed to Sitaram''s house and well. They discovered Sitaram in a highly injured condition. Sitaram was not even in a position to speak. They rushed him to the hospital.

Bhagwana Ram (P.W.2) claims that he had heard some noises from the house of Sitaram, but they were the voices of Sitaram and Anchi Devi. According to him there was no animosity between the husband and the wife. The fact that there was no animosity between the couple has also been testified by Hardeva Ram (P.W.4) and Bhanwar Lal (P.W.5). Even Shishpal (P.W.22), the complainant, does not claim that there was any dispute between the husband and the wife.

Ravindra Pratap (P.W.20) is the Investigating Officer. According to him while Anchi Devi was in police custody, she made a statement (Ex. P.38) under Section 27 of the Evidence Act, that she could get the kulhari recovered amongst the crop in her field. Consequently, on 7.9.2003 by recovery memo (Ex. P.6) a kulhari was recovered from her field. Moreover, by another statement (Ex. P.39) given under Section 27 of the Evidence Act, she informed the police that she could get her clothes, which were covered with blood, recovered from her house. Consequently, by recovery memo (Ex. P.8), the blood stained clothes of the accused were recovered from her house. Further, according to this witness he had sent the dead body for Post-Mortem. The Post-Mortem was performed by Dr. H.C. Dasaniya (P.W.24). Immediately after the Post-Mortem, the blood stained clothes of the deceased were recovered by recovery memo (Ex. P.15).

All the recovered items were safely kept in the malkhana. According to Mahavir Prasad (P.W.19) the sealed packets were given to Beerbal Singh (P.W.16) for being deposited with the FSL. According to the FSL report, which has not been marked as an exhibit, the clothes of the deceased, the clothes of the accused and the kulhari all had blood group ''A'' upon them. Dr. H.C. Dasaniya (P.W.24) has proven the Post-Mortem Report (Ex. P.49).

According to the Post-Mortem Report Sitaram has suffered following injuries:--

"1. Chop incised wound present over face extending from 3 mm Angle of Lt. Eye to Rt. Angle of mandible of size 18 cm x 4 cm x under neck both Side Maxilar. NASAL bone, cut with Red clotted blood. The NASAL bone and cut thigh and through at the root of nose.

Chop incised wound of size 11 cm x 3 cm x under neck Lt. Maxilla and mandible bone cut. From just Lt. Side of the wound extending near to Lt. Angle of Mandible.

Two incised wound of size 6 x 2 cm and 4.5 x 1/2 cm upto bone deep. Placed at Rt. Scapular region. All the wound margin are regular clear and well defined with Red - clotted blood. All above finding an anti mortem in nature and fresh ... and caused By heavy sharp weapons.

The sealed vial taking blood gouge piece for fresh investigation handed over the place.

Opinion: The cause of death is due to asphyxia brought about as a result of chocking of wind pipe by blood and blood clots. Consequent to injury No. (1) and 2 and 3. Sufficient to cause death in ordinary course of nature."

In a nutshell this is the prosecution case against the appellant.

Mr. Atma Ram Meena, the learned counsel for the appellant, has raised the following contentions before this court: firstly, the entire case is based on circumstantial evidence. But the prosecution has not brought sufficient number of circumstances on record to establish the guilt of the accused appellant. The glaring contradictions in the prosecution evidence and the lacuna left by the prosecution have weakened the case of the prosecution to the extent that appellant cannot be convicted upon the evidence produced by the prosecution.

Secondly, the only pieces of evidence that prosecution has produced against the appellant are: (a) evidence of the last seen i.e. both husband and wife heard to be in their house; (b) a blood stained kulhari recovered at the instance of the appellant; (c) the appellant''s blood stained clothes recovered at her instance; (d) the blood stained clothes of the deceased, kulhari and the blood stained clothes of the accused, all had blood group ''A'' upon it. But even these pieces of evidence are insufficient for convicting the appellant. For, Bhagwana Ram (P.W.2) and Hardeva Ram (P.W.4) both claim that there was no animosity or dispute between the husband and the wife. Moreover, merely because voices of the husband and the wife were heard from the house, is but natural as both of them were living together. Therefore, the evidence of the prosecution on this point does not lead anywhere, much-less to revealing the guilt of the accused appellant.

Furthermore, according to Shishpal (P.W.22) the complainant, on the day of the occurrence the police had thoroughly searched the house as well as the field. But on that day, they could neither recover the kulhari, nor recover the clothes of the accused. Therefore, the recovery of the kulhari on the next day is doubtful.

Furthermore, even if the recovery of the kulhari and the recovery of the clothes of the accused were to be believed, even then the FSL report does not buttress the case of the prosecution. For, the prosecution has not eliminated the possibility that blood group ''A'' could also be the blood group of the appellant herself. Therefore, the mere presence of the blood group ''A'' on her clothes, and the clothes of the deceased and on the kulhari, do not lead to the conclusive inference that the appellant has committed the murder of her husband.

On the other hand Mr. N.S. Dhakad, the learned Public Prosecutor, has contended that according to Bhagwana Ram (P.W.2) when he passed near the house of Sitaram, there were no other persons near about. According to Boduram (P.W.6), Sriram (P.W.7), Sagarmal (P.W.10) and Nand Lal (P.W.11), when they went to Sitaram''s house, they did not find anyone else. Further, they did not see any stranger either coming or going by his house. Therefore, on the last occasion Sitaram was with his wife, the appellant. Secondly, the recovery of a blood stained kulhari, the recovery of blood stained clothes, both at the behest of the appellant, and the presence of blood group ''A'', clearly prove that only the appellant could have killed her husband. Hence, the learned Public Prosecutor has supported the impugned judgment.

Heard the learned counsel, perused the impugned judgment and examined the record.

Undoubtedly, the case is based on circumstantial evidence. The rule governing appreciation of evidence in case based on circumstantial evidence is not only well known, but has also been recently reiterated by the Apex Court in the case of Balkar Singh v State of Haryana [2014 (13) SCALE 63]. The Hon''ble Supreme Court has observed as under:--

"(1) ...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."

Therefore, these principles would have to be kept in mind while appreciating the evidence in the present case.

It is, indeed, trite to state that the prosecution has to cover the long distance between "may be true" and "must be true". Merely by flashing few pieces of evidence which are incomplete in their nature and scope, the prosecution does not succeed in establishing its case beyond a reasonable doubt. Even if the prosecution succeeds in creating a strong suspicion against the accused, even then the accused cannot be convicted. For, convictions cannot be based on conjunctures or surmises, or on strong suspicion. The prosecution is required to prove its case through cogent and convincing evidence; each linking evidence has to form a chain which leads to the only conclusion that the crime could have been committed only by the accused person, or persons and by none other. [refer to Vijay Thakur Vs. State of Himachal Pradesh, (2014) AIRSCW 5625

The testimony of Bhagwana Ram (P.W.2) does not reveal anything unusual. If the husband and wife are at their house, if they are talking to each other, if there is no animosity between them, there is nothing unusal about such an incident. Most importantly, according to Bhagwana Ram (P.W.2), Hardeva Ram (P.W.4), Bhanwar Lal (P.W.5), the nephew of the deceased, there was no animosity or dispute, or ill will between the husband and the wife. Therefore, motive, which is an important link in cases of circumstantial evidence, is conspicuously missing in the present case.

The recovery of a blood stained kulhari, although supported by both the independent witnesses, Hardeva Ram (P.W.4) and Suresh Kumar (P.W.17), is bit suspicious. For, according to Shishpal (P.W.22), the house and the fields were completely searched by the police on the day of the incident itself. Even other witnesses also claim, the house and the fields were thoroughly searched by the police. Yet, the police did not recover anything on 5.9.2003. The recoveries were made on 7.9.2003. Moreover, since the prosecution has not established the fact that the appellant''s blood group was not the blood group ''A'', it cannot be inferred that the blood group found on the kulhari and on her clothes did not belong to her.

In the case of Prakash Vs. State of Karnataka, (2014) AIRSCW 2354 : (2014) CriLJ 2503 : (2014) 5 JT 239 : (2014) 5 SCALE 83 , the Hon''ble Apex Court has observed as under:--

"41. In any event, the recovery of the blood stained clothes of Prakash do not advance the case of the prosecution. The reason is that all that the prosecution sought to prove thereby is that the blood group of Gangamma was AB and the blood stains on Prakash''s seized clothes also belong to blood group AB. In our opinion, this does not lead to any conclusion that the blood stains on Prakash''s clothes were those of Gangamma''s blood. There are millions of people who have the blood group AB and it is quite possible that even Prakash had the blood group AB. In this context, it is important to mention that a blood sample was taken from Prakash and this was sent for examination. The report received from the Forensic Science Laboratory [Exh.P- 27] was to the effect that the blood sample was decomposed and therefore its origin and grouping could not be determined. It is, therefore, quite possible that the blood stains on Prakash''s clothes were his own blood stains and that his blood group was also AB."

Similarly, blood group ''A'' is not so uncommon as not to belong to the accused. A possibility does exist that the accused belongs to blood group ''A''. The prosecution is required to eliminate this possibility. But it has failed to do so.

Therefore, the three linking evidence does not lead to the inevitable conclusion that the murder was committed by the appellant.

There is another disturbing fact which has gone un-noticed by the learned Trial Court. According to Shishpal (P.W.22), his younger brother, Sitaram was not in the habit of taking drinks or in the habit of eating tobacco or gutka. According to Anchi Devi when she came to Shishpal''s house, she informed him that two strangers are sitting with her husband at her house; Sitaram has asked that Shishpal should come to his house immediately. Both, according to Ravindra Pratap (P.W.20) and according to the site plan (Ex. P.1), the police discovered pouches of country made liquor, pouches of tobacco and gutka, at the scene of the crime. Thus, a distinct possibility does exist that two alleged strangers who had come to Sitaram''s house, may have had a drink or two, and may have killed Sitaram.

Moreover, according to Ravindra Pratap (P.W.20) the police had taken the fingerprints of Anchi Devi. Yet, there is no report of a Fingerprint Expert. In fact, it is not even the case of the prosecution that they had lifted her fingerprints from the kulhari, or from any other articles discovered near the dead body. Thus, the lifting of the fingerprints leaves a dangling thread in the fabric of the prosecution case.

Since the prosecution has failed to establish its case through cogent and convincing evidence, since the court is left groping in the dark, the court has no other option, but to give the benefit of doubt to the appellant.

For the reasons stated hereinabove, the appeal is allowed. The judgment dated 8th July, 2004 passed by Additional Sessions Judge (Fast Track) No. 2 Sikar in Sessions Case No. 07/04 is hereby, quashed and set aside. The accused appellant, Anchi Devi is acquitted of the charge under Section 302 IPC and the sentences awarded thereof is set aside. Appellant Anchi Devi shall be released forthwith, if not wanted in any other case.

Keeping, however, in view the provisions of Section 437-A Cr.P.C. the appellant, namely Anchi Devi is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/-, and a surety bond in the like amount, before the trial court. The bond so furnished shall be effective for a period of six months. The bond shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment, or on grant of the leave, the appellant, on receipt of notice thereof, shall appear before the Hon''ble Apex Court.