Ashok vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant has preferred the present appeal being aggrieved with the judgment dated 8.8.2006 passed by the First Additional Sessions Judge, Chhindwara in ST No. 79/2005 whereby the appellant has been convicted of the offence punishable under Sections 302 and 201 of IPC and sentenced to life imprisonment with fine of Rs.2,000/- and two years'' rigorous imprisonment with fine of Rs.500/- respectively. Default sentence in lieu of payment of fine was also imposed. The sentences were directed to run concurrently.

The prosecution''s case, in short, is that deceased Shashi Bai had been married to one Karan Singh resident of Village Parasiya. After sometime the deceased left the house of her husband and about eight years prior to the incident she started residing with the appellant in his house. Sunder (PW-9), brother of the deceased had objected and advised deceased Shashi Bai not to live with the appellant. In the month of December 2004 the appellant went to the house of Sunder (PW-9) and enquired about deceased Shashi Bai on a pretext that she had left his house 4-5 days back and he could not find the deceased anywhere in his relations. On 18.12.2004 Sunder (PW-9) lodged a missing report at Police Station Parasiya. On 19.12.2004 ASI R.K. Jaiswal (PW-13) called the appellant at Police Station Parasiya and interrogated him in the matter. He had recorded the memo Ex.P-1 under Section 27 of the Evidence Act that the appellant killed the deceased and her body was buried near the funeral ground. He gave an intimation about the dead body of the deceased and equipments used in burying the body of the deceased. Thereafter a permission was sought from the SDM concerned to dig the place shown by the appellant to recover the dead body of the deceased. After getting the permission, the body of the deceased had been dug out in presence of the Tahsildar and a Panchayatnama-lash Ex.P- 2A (memo relating to the position of the dead body) was prepared. Also one small spade and one pickaxe had been seized from the appellant and a seizure memo Ex.P-7 was prepared. A little portion of soil was also recovered from the place where the deceased was buried. The dead body of the deceased was duly identified by Sahasram (PW-1) and Sunder (PW-9). The dead body of the deceased was sent for the postmortem. Dr. P.K. Soni (PW-12) had performed the postmortem on the body of the deceased and gave his report Ex.P-21A. He found that on left portion of her chest, the body was depressed and ribs No. 4 to 6 were broken under that depression. He opined that the deceased died due to injuries caused on her vital parts and consequential shock. However, the viscera was preserved and sent for the Forensic Science Examination. The various articles were also seized and sent for their Forensic Science Examination. In the FSL report, no poison was found in the viscera of the deceased. After due investigation, the charge sheet was filed before the Chief Judicial Magistrate, Chhindwara, who committed the case to the Sessions Court and ultimately it was transferred to the First Additional Sessions Judge, Chhindwara.

The appellant Ashok abjured his guilt. He took the plea that deceased Shashi Bai was not at all known to him. He never resided with her. On the contrary, the name of his wife is Dulari, who is alive. No specific defence was taken by the appellant and therefore no defence evidence was adduced.

The Additional Sessions Judge, Chhindwara after considering the evidence adduced by the prosecution convicted and sentenced the appellant as mentioned above.

We have heard the learned counsel for the parties at length.

It is apparent that there is no ocular evidence in the case and entire case depends upon the circumstantial evidence, and therefore the evidence adduced by the prosecution should be considered point-wise. Also it is not disputed that the dead body recovered was of deceased Shashi Bai. The first circumstance is the fact of last seen, which was to be proved by Sahasram (PW-1) and Sunder (PW-9). Out of these two witnesses, Sunder (PW-9), who lodged a missing report has turned completely hostile. He did not state anything about the fact that deceased Shashi Bai had resided with the appellant and soon before her missing, she was with the appellant. However, in para 2 of his statement, he has accepted that deceased Shashi Bai was his sister and appellant Ashok was his brother-in- law. He has also stated that 10-11 months prior to his statement before the trial Court, appellant Ashok came to his house to enquire about Shashi, hence it appears that Sunder (PW-9) had recognized the marriage of deceased Shashi with the appellant. Sahasram (PW-1) has also stated that deceased Shashi Bai was residing with the appellant and they remained as husband and wife for eight years.

These two witnesses have turned partly hostile and tried to support the appellant, and therefore if they had stated something against the appellant, then their testimony should be accepted. It is proved beyond reasonable doubt that deceased Shashi Bai was residing with the appellant as a wife in his house. However, such a proof is not sufficient to prove the fact of last seen. It is clearly mentioned by Sahasram (PW-1) that no marriage took place between Shashi Bai and appellant Ashok. Deceased Shashi Bai was a tribal woman whereas appellant Ashok was of caste Mehra and deceased Shashi Bai resided with the appellant in live-in-relation. Hence she could leave the appellant at any span of time. Witness Sunder (PW-9) had lodged a missing report at Police Station Parasiya on 18.12.2004. The Rojnamcha of that missing report though not proved is available in second part of case file of the trial Court. That report was registered at Rojnamcha-sahna No. 1068 dated 18.12.2004. The prosecution did not try to prove that missing report, however it is a prosecution document and if its some portion is in favour of the accused, then it can be read in favour of the accused though it is not proved. In that Rojnamcha, Sunder (PW-9) had informed that the appellant came to his house to enquire as to whether deceased Shashi Bai had come to his house or not who was missing for last 4-5 days prior to that visit of the appellant. It is true that deceased Shashi Bai was residing with the appellant in his house, but according to the information received by the witness Sunder (PW-9), the appellant himself was tracing deceased Shashi Bai, because she was missing for 4-5 days. If the appellant would have killed the deceased, then there was no need for him to trace deceased Shashi Bai, on the contrary he would tell the witness Sunder that Shashi Bai left his house with the information that now she had not come back to his house. It is true that before her death, Shashi Bai was residing in the house of the appellant, but there is a lot of time gap in between the evidence of last seen and the incident of death of Shashi Bai, and therefore it cannot be held that the fact of last seen is really proved against the appellant. When the appellant himself was searching the deceased and he visited the house of Sunder (PW-9), then certainly it cannot be said that at the time of incident, she was in the company of the appellant. The learned Additional Sessions Judge has committed an error in holding the circumstance of last seen as proved.

Sahasram (PW-1), who was co-brother of the appellant and brother-in-law of the deceased has stated that his father-in-law had three wives. From first wife, he had three daughters and one son. Out of those three daughters, one was the wife of witness Sahasram (PW-1). From the second wife, deceased Shashi Bai and witness Sunder (PW-9) had born. Hence Sunder (PW-9) is brother- in-law of Sahasram. Sahasram and Sunder have stated that deceased Shashi Bai was residing with the appellant in peaceful manner. They never heard about any quarrel between them. Sahasram (PW-1) has accepted that deceased Shashi Bai resided with appellant Ashok without the consent of her brother Sunder, and therefore she was visiting the house of Sahasram (PW-1), but she was not visiting frequently the house of her brother Sunder. Sunder (PW-9) did not state about the strained relations of deceased Shashi Bai and the appellant, and therefore no motive to the appellant to kill deceased Shashi Bai is proved. The appellant and deceased Shashi Bai were in live-in-relation and they could leave each other with their consent. There was no need to the appellant to kill deceased Shashi Bai. It was suggested to the witness Sahasram (PW-1) that some pensionary benefit of his father-in-law was to be received by sons and daughters of his father-in-law and there was a dispute between Shashi Bai and her brothers and sisters. Though the witness Sahasram (PW-1) could not say positively about that suggestion, but even if it is accepted that the suggestion was correct, then due to death of deceased Shashi Bai, if any advantage could be received, then it could be received by her brother Sunder (PW-9) but it could not be received by the appellant. Hence, the prosecution has failed to prove that the appellant had any motive to kill the deceased.

Dr.P.K. Soni (PW-12) had performed the postmortem on the body of deceased Shashi Bai and he found that a little portion of her left chest was depressed and under that depression three ribs were found broken. However, since internal organs were decomposed, he could not state definitely that due to breaking of the ribs some vital parts like lung and heart were ruptured or not. He gave his opinion that the death of the deceased was homicidal in nature on the basis of the fracture of the ribs. However, by simply causing fractures of 2-3 ribs by fists, the injured person could not die. Dr. P.K. Soni was not definite in his opinion that the death of the deceased was homicidal, and therefore he preserved the viscera of the deceased and it was sent for forensic science analysis and no poison was found in that viscera. Under these circumstances, the opinion given by Dr. Soni is not definite that the death of the deceased was homicidal in nature.

The next circumstance which is found positive by the Additions Sessions Judge is that the dead body of Shashi was found on the information given by the appellant. ASI R.K. Jaiswal (PW-13) has stated that he called the appellant at the police station and recorded the memo Ex.P-1 under Section 27 of the Evidence Act and the appellant gave an information about the dead body of the deceased and thereafter he received a permission from the SDM concerned to dig the body of the deceased. Witnesses Sahasram (PW-1) and Sunder (PW-9) who were the witnesses of memo Ex.P-1 have turned hostile. They did not support the story prepared by ASI R.K. Jaiswal. (PW-13). Sahasram (PW-1) who is partly turned hostile has accepted that the police took a sweeper, Sunder (PW-9), Tikaram (PW-2) and appellant Ashok to a particular spot and thereafter on digging, the dead body of deceased Shashi Bai was found. However, Sunder (PW-9) has turned hostile. In the cross-examination Sahasram (PW-1) has accepted in para 13 that when he was called at Police station he had no knowledge that Shashi Bai was missing or she had died. He has accepted that no document was prepared at the police station. The dead body of the deceased was dug from a particular spot but nothing was told by appellant Ashok at the police station about that place. Looking to the statement given by Sahasram (PW- 1), the testimony of ASI R.K. Jaiswal (PW-13) appears to be doubtful.

According to the ASI R.K. Jaiswal (PW-13), he moved an application before the SDM concerned and obtained sanctioned to dig the place and removed the dead body. But no such sanction order has been proved before the trial Court. According to the memorandum Ex.P-1, it was recorded on 19.12.2004 at about 14:15 hours and according to the document Ex.P-6, a seizure memo relating to recovery of pieces of earth from the burial place, it was prepared on 19.12.2004 at about 17:15 hours. In the meantime ASI R.K. Jaiswal went to meet SDO concerned and got the permission. He removed the dead body of the deceased by digging. The Panchayatnama-lash Ex.P-2 was prepared and thereafter seizure of soil of earth was done by him. The entire such proceedings could not be done within three hours. It is strange that witness Sunder (PW-9) had lodged a missing report at Police Station Parasiya on 18.12.2004 at about 11:40 PM and the dead body of the deceased was recovered on the very next day. The appellant was taken to the police station and he immediately accepted the guilt and gave an information about the dead body of the deceased. Initially a memo Ex.P-1 under Section 27 of the Evidence Act was prepared by ASI R.K. Jaiswal and thereafter the investigation was shifted from ASI Jaiswal to SHO Deepak Mishra (PW-11). It is surprising that neither ASI Jaiswal nor SHO Deepak Mishra had prepared any memo of recovery of the dead body in consequence of information given by the appellant. After getting the dead body dug, SHO Deepak Mishra had prepared the Panchayatnama-lash directly and recorded the fact about the digging in Dehati-Nalishi Ex.P-19.

According to the SHO Deepak Mishra, the SDM concerned directed the Tahsildar Gedam to go and supervise the recovery of the dead body. Dr. P.K. Soni (PW- 12) was also present at the time of recovery of dead body. However, SHO Deepak Mishra did not prepare any recovery memo regarding recovery of dead body, and therefore there is no signature appended either by Tahsildar Gedam or by Dr. P.K. Soni on the document prepared by the police and even in the Panchayatnama- lash prepared by the SHO Deepak Mishra no signature of the Tahsildar or Dr. Soni was taken. Hence it is doubtful position that SHO Deepak Mishra followed the conditions of permission order given by the SDM. According to the document Ex.P-1, the police went to the spot along with witnesses Sunder- Tikaram, appellant Ashok and a sweeper and started digging. It is also strange position that a memo Ex.P-1 under Section 27 of the Evidence Act was recorded by ASI Jaiswal and thereafter he did not visit the spot. No intimation was given to any of the witnesses that the appellant gave any information under Section 27 of the Evidence Act. Looking to the conduct of the ASI Jaiswal and SHO Deepak Mishra, a doubt is created that after getting the dead body dug, ASI Jaiswal has prepared a memo Ex.P-1. He did not give any explanation as to why no independent witness was not taken while recording the statement of the appellant under Section 27 of the Evidence Act. He took the witnesses Sahasram (PW-1) and Sunder (PW-9) and out of them Sunder was brother of deceased Shashi Bai whereas Sahasram was brother-in- law of deceased Shashi Bai. At present both of them did not corroborate the testimony of ASI Jaiswal relating to document Ex.P-1. It is also strange that the missing report was lodged by witness Sunder (PW-9) on 18.12.2004 in the late night and on the next day, not only the dead body of the deceased was recovered, but a memo under Section 27 of the Evidence act was also recorded.

The possibility cannot be ruled out that ASI Jaiswal or SHO Deepak Mishra had received an information of the dead body from some other source and thereafter a missing report was recorded by calling the witness Sunder (PW-9) and memo Ex.P-1 was also recorded. Otherwise there was no hindrance to the investigation officer to prepare recovery memo relating to recovery of dead body and after digging the dead body he could take the signatures of Dr. Soni as well as Tahsildar Gedam on that recovery memo to confirm that the place of burial was shown by the appellant. Tikaram (PW-2), who was a witness of document Ex.P-2A Panchayatnama-lash has stated that he was also taken by the police to that Nala. He was taken along with Sahasram (PW-1) and Sunder (PW-9) on a tractor. Again he has changed his version and said that the appellant and other persons had already reached to the spot with the police and he went thereafter. He did not corroborate that at the time of digging of the dead body, Tahsildar Gedam or Dr. Soni was present. Though witness Tikaram (PW-2) has partly turned hostile, however he was the witness of the Panchayatnama-lash and he has accepted that the dead body, which was found after digging, was of deceased Shashi Bai. Under these circumstances, a doubt is created that by an intimation received to SHO Deepak Mishra or ASI Jaiswal, they dug the dead body of deceased Shashi Bai in presence of appellant Ashok, Sahasram (PW-1) and Sunder (PW-9), and thereafter they prepared documents implicating the present appellant, because deceased Shashi Bai was residing with the appellant soon before her missing. It was the duty of the prosecution to prove its case beyond doubt. It was to be proved that an information was given by the appellant before the independent witnesses about the burial of the dead body of the deceased. Thereafter the procedure of taking sanction to dig the dead body was to be established. It is not proved that at what time they applied before the SDM concerned and when the SDM gave his permission to dig the dead body. An explanation was to be given by SHO Deepak Mishra as to why he did not make the recovery memo of the dead body and as to why he did not take the signatures of the Tahsildar and Dr. Soni on that recovery memo or any document relating to recovery of dead body. SHO Deepak Mishra could not establish that at the time of digging of the dead body, Dr. Soni or Tahsildar Gedam was present. The witnesses who were present at the time of recovery of the dead body did not confirm the presence of Tahsildar Gedam or Dr. Soni and the SHO Deepak Mishra did not prepare any document to show their presence. Under such circumstances, the entire proceeding done by the police becomes doubtful. Consequently, a doubt is created to the fact that the dead body of the deceased was recovered on information given by the appellant. The doubt is further confirmed by the fact that the appellant was casually called along with Sunder (PW-9) and Sahasram (PW-1), and therefore at the time of recovery of dead body, he was not in the custody. He was arrested on 20.12.2004 and arrest memo Ex.P-8 was prepared, whereas the alleged dead body was recovered on 19.12.2004.

The learned counsel for the appellant has submitted that though some prosecution witnesses have turned hostile, if the initial prosecution story is considered, then there was no motive to the appellant to kill a woman who was living with him. Secondly, if he would have killed the deceased, then there was no need for him to visit the house of the witness Sunder (PW-9) in search of his wife. It is strange that it is alleged against the appellant that he gave forceful blow of fists on the left chest of the deceased so that three of her ribs were broken, but no external injury was found on the body of the deceased. Dr. Soni is also not definite that the internal organs of the deceased like lung and heart were pierced due to breaking of ribs or injury caused on ribs was fatal and caused death of the deceased. It is also strange that in late night of 18.12.2004 Sunder (PW-9) informed the police that his sister was missing and on the next day the body of the deceased was recovered. There is no doubt that the body recovered was of the deceased Shashi Bai, because Dr. Soni has opined that the skin of dead body of the deceased was in a position that she could be identified. Sahasram (PW-1) and Sunder (PW-9) have properly identified the dead body of the deceased and memo under Section 27 of the Evidence Act was recorded by ASI Jaiswal and thereafter, procedure adopted by SHO Deepak Mishra appears to be doubtful.

The contention advanced by the learned counsel for the appellant appears to be acceptable. There was no need to the appellant to kill the woman who was living with him. If he gave some forceful blow by fists on her left chest breaking three of her ribs, then there should be a visible injury on her chest. Dr. Soni has stated that skin was present on the body though internal organs were decomposed, then he could get a symptom of contusion or some wound to prove that powerful blow of fists was given to the deceased and consequentially her three ribs were broken. The procedure adopted by the police in digging the body and time span between the missing report and recovery of the dead body creates a doubt in the procedure adopted by SHO Deepak Mishra. Hence, the prosecution could not prove beyond reasonable doubt that the dead body of the deceased was found on the information given by the appellant and therefore, the learned Additional Sessions Judge has committed an illegality in holding the circumstance to be proved.

The police had recovered one spade and pickaxe from the appellant but no FSL report was filed during the trial that whether any blood stain was found on those articles. When there was no external injury found on the body of the deceased, then there was no possibility to get any blood on those articles. Hence, the recovery of such articles from the appellant has no evidentiary value because such spade and pickaxe may be available with the persons who are doing job of labour.

On the basis of the aforesaid discussion, the prosecution could not prove beyond doubt, the factum of last seen. There was a gap of 4-5 days between the circumstance of last seen and the date of incident. The appellant himself went to the house of witness Sunder (PW-9), brother of deceased Shashi Bai in her search. Sunder after a longer period had lodged a missing a report on 18.12.2004. The prosecution could not prove beyond doubt that the dead body of the deceased was found on the information given by the appellant. Dr. Soni could not prove definitely that the deceased died due to fractures caused on her ribs and it was not proved beyond doubt that the death of the deceased was homicidal in nature. Under these circumstances, the chain of circumstantial evidence is broken. The possibility cannot be ruled out that the information about the dead body that it was buried on a particular place was received by SHO Deepak Mishra or ASI Jaiswal by any other source and thereafter they created a case. If any doubt is created in the prosecution evidence, then benefit of doubt is to be given to the accused. In this context, the judgment of Hon''ble the Apex Court in the case of Varun Chaudhary Vs. State of Rajasthan, may be referred, in which it is held that if the case is dependent upon the circumstantial evidence, then there must be a complete chain of evidence which could lead to conclusion that accused was only person, who could have committed offence and none else. In the light of the aforesaid judgment, the appellant in the present case cannot be held guilty of the offence under Section 302 of IPC because so many doubts are created and the chain of circumstantial evidence is not complete. Deceased Shashi could be buried by any stranger after killing her.

If it is not proved beyond doubt that the appellant killed deceased Shashi Bai, then it can not be presumed that it was the appellant who buried the dead body of the deceased on a particular place. Hence the appellant cannot be convicted of the offence under Section 201 of IPC.

On the basis of the aforesaid discussion, the present criminal appeal filed by appellant Ashok must be allowed. Consequently, it is hereby allowed. The conviction as well as the sentence imposed on the appellant Ashok are hereby set aside. He is acquitted of all the charges appended against him. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court.

At present appellant Ashok is in custody and the Registry is directed to issue release warrant forthwith so that the appellant may be released without any delay.