Babua & Anr. vs State of M.P.

This appeal by the sole appellant is directed

against the judgment dated 08.05.2008, passed by

First Additional Sessions Judge, Damoh in S.T. No.

43/2007, whereby appellant has been found guilty for

the offence punishable under Sections 460 and 302 of

the Indian Penal Code and has been sentenced to

rigorous imprisonment for 5 years and fine of

Rs.1,000/- and life imprisonment and fine of Rs.2,000/-

and in default of payment of fine, to further suffer

rigorous imprisonment for one month and two months

respectively.

As per prosecution, P.W.-1 Surendra Kumar

and his family had gone to Nasiyaji Mandir at 9.30 in

the night, leaving his mother Rooprani alone at home.

He came back at 10.00 P.M. and found the door of his

house locked from inside and his mother lying dead

with a handkerchief tied around her neck. The incident

was reported by P.W.-1 Surendra Kumar at 3.00 A.M. in

the night on 30.08.2006. On the basis of which, further

investigation followed. FIR (Ex.P-18) was recorded by

P.W.-16 Bhalla Prasad Dubey, ASI, against unknown

persons and detailed spot inspection report (Ex.P-25)

and map was made and the body was sent for post

mortem.

P.W.-12 Dr. Rajeev Sthapak, who conducted

the post mortem (Ex.P-12) at 12.30 P.M. on 30.08.2016

had opined that the cause of death is asphyxia due to

strangulation and as a result of cardiac respiratory arrest.

The appellant was arrested at 1.30 P.M. on

01.12.2006 from sub-jail Laknadon and on his

memorandum (Ex.P-10) the mobile was seized from

him on 31.07.2007. The trial Court convicted and

sentenced the appellant as mentioned hereinabove

considering the fact that appellant was a history

sheeter for petty offences and on the basis of call

details produced by the prosecution.

We have heard the learned counsel for the

parties and meticulously perused the record. From a

perusal of the record, it is clear that the whole case of

the prosecution is based on circumstantial evidence

and the seizure of mobile and its call details (Ex. P-16).

P.W.-1 Surendra Kumar, son of the deceased

has stated that on 29.08.2006, at about 8.30 P.M., he

went to the temple of Narsiyaji. At that time his

mother (deceased) and his wife, Sushma (P.W.-2), were

at home. He has stated that his mother was ill and

was suffering from chicken guniya, so before going, he

lifted her from bed and put her down on the floor. He

has further stated that at 9.30 P.M., his wife left for the

temple after locking the door of the house from

outside. He returned alone from the temple at

10 O''Clock in the night and tried to open the door and

found that the door was locked from inside. He called

the neighbor Virendra Kumar Asati (P.W.-3) and went to

call his wife from the temple. After opening the

channel gate, they entered the house and saw the

deceased lying dead on the floor with her handkerchief

tied around her neck. Thereafter, he went to inform

the police. He has stated that the police has taken his

statement, wherein he has disclosed the name of the

persons he has suspicion on and the fact that his

mobile and charger were missing. However, his case

diary statement is not available on record.

P.W.-2 Sushma has stated that her husband

left for temple at 8.30 P.M. after putting his mother on

floor. Thereafter, at about 9.30 P.M., she also left for

the temple after locking the door from outside. She

has further stated that about 10 P.M. her husband

returned from the temple leaving her at temple, but

after 5-7 minutes, he came back to call her.

Thereafter, she went to her house and opened the

channel gate to go inside the house and found her

mother-in-law lying in the floor with her handkerchief

tied around the neck. She has further stated that they

have two sets of keys, one set is kept by her husband

Surendra Kumar (P.W.-1) and the other set which has

the key of channel gate is with her.

P.W.-9 Malkhan Singh, who recorded the

merg intimation has stated that Surendra Kumar (P.W.-

1) has not told about the theft of mobile in the merg

intimation. P.W.-16 Bhalla Prasad Dubey (ASI) and P.W.-

17 Kiran Singh, Sr. Scientist of Crime wing, who had

done the spot inspection has stated that all the doors

of the house were locked from inside. There were no

foot marks. Nothing was touched from the room.

Complainant opened the godrej almirah and the locker

and found that all the valuables, clothes etc. were in

their place. P.W.-17 Kiran Singh has specifically

mentioned that the door towards the roof was also

closed from inside and the only way to reach the

passage outside was through the channel gate, which

could be opened from both the sides, whereas all other

doors if locked from inside, could not be opened from

outside.

Spot inspection report (Ex.P-25) is

reproduced below :-

"VERNACULAR MATTER OMITTED"

From a perusal of statements of P.W.-1

Surendra Kumar, P.W.-2 Sushma and P.W.-17 Kiran

Singh and the spot inspection report (Ex. P-25), it is

clear that P.W.-1 Surendra Kumar himself had put his

mother on floor and P.W.-2 Sushma locked the house

from outside. It is an admitted fact that keys of the

door and channel gate were with P.W.-2 Sushma. As

per the spot inspection report, all the doors of the

house were closed, there was no sign of forced entry

into the house. No foot prints were found. In view of

the spot inspection report, there was no way anyone

could have gained entry into or gone out of the house.

The doors to the roof, from where the accused had

allegedly entered and gone out was also found locked

from inside.

P.W.-1 Surendra Kumar has stated that his

mobile and charger were stolen from the place and

that he has also informed about the same in the report

(merg intimation) and in his case diary statement.

However, P.W.-9 Malkhan Singh, who recorded the

merg intimation has specifically stated that merg

intimation was written as per the information given by

P.W.-1 Surendra Kumar and he has not stated or

disclosed the theft of mobile. Another aspect of the

case is that allegedly only mobile and charger had

been stolen, whereas the other valuable items, gold

and silver available in the house were found

untouched.

It is also pertinent to note that the finger

prints collected from the crime scene were sent for

examination to finger print expert alongwith the finger

prints of accused, however, the report of the same was

not made available by the prosecution, probably for

the reason that the same had not matched.

It is not the case of prosecution that the

accused had any ill will towards P.W.-1 Surendra Kumar

and to take revenge had committed the crime. The

only other reason for entering a house would be for the

purpose of theft, but considering the fact that nothing

valuable was even touched or stolen from the house,

there is nothing to connect the accused with the said

crime.

It is also pertinent to note that appellant

was arrested on 01.12.2006 from the sub jail

Lakhnadon and the seizure was made on 31.07.2007

after 7-8 months of the incident. According to the

prosecution, the accused had thrown away the sim and

after burning, the mobile had hid it in his room. Once

a person had thrown away the sim and burned the

mobile, it is unlikely that he would hide it in his house

to incriminate himself. The prosecution apart from

giving the details of his criminal antecedents, has not

brought on record as to whether he was in jail or not

on the date of incident.

P.W.-1 Surendra Kumar has stated that he

did not know the name of the accused. Later on,

Mihilal (P.W.-5) told him about the name of the accused

as the accused had earlier worked at his house and on

the basis of suspicion, Rajkumar was named as

accused. Chakresh Jain (P.W.-6), nephew of deceased

has stated that accused had called up one Kallu @

Kaluram (P.W.-7) at Jabalpur on his land line and talked

to his mother. Kaluram (P.W.-7) has, however, denied

any such suggestion. He had categorically stated that

he did not know the accused, nor had accused ever

called on his land line. This witness had been very

consistent in his cross-examination also. Ex. P-16, the

call details produced by the prosecution is of no use as

it does not show who was speaking from the other end.

This list only show the calls, incoming or outgoing

made or SMS sent to some number, which is not

enough to connect the appellant with the crime unless

the location of the mobile is traced and matched with

the location of the accused.

In view of the aforesdiscussed, the trial

Court had committed an error in convicting the

appellant solely on suspicion relying on the fact about

his previous antecedents about the petty offences and

on the basis of call details produced by the

prosecution.

It is settled law that suspicion, howsoever

strong, cannot form the basis of conviction. In the case

of Rajiv Singh Vs. State of Bihar (2015) 16 SCC

369, the Supreme Court has held:

It is well-entrenched principle of criminal jurisprudence that a charge can be said to be proved only when there is certain and explicit evidence to warrant legal conviction and that no person can be held guilty on pure moral conviction. Howsoever grave the alleged offence may be, otherwise stirring the conscience of any court, suspicion alone cannot take the place of legal proof. The well-established canon of criminal justice is "fouler the crime higher the proof". In

unmistakeable terms, it is the mandate of law that the prosecution in order to succeed in a criminal trial, has to prove the charge(s) beyond all reasonable doubt.

The above enunciations resonated umpteen times to be reiterated in Raj Kumar Singh Vs. State of Rajasthan (2013) 5 SCC 722 as succinctly summarized in para 21 as hereunder :

"21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that ''may be'' proved and ''will be proved''. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance

between "may be" true and "must be" true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."

In supplementation, it was held in affirmation of the view taken in Kali Ram vs. State of H.P . (1973) 2 SCC 808 that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted."

Reference may also be made to the decision

of Supreme Court in Pawan Kumar Vs. State of

Haryana (2001) 3 SCC 628, wherein it is held:

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. 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. Vs. 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."

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 Vs. State of Punjab (AIR 1987 SC 350) lends concurrence to the above.

In the light of the law laid down by the

Supreme Court and in view of the peculiar facts and

circumstances of the case aforediscussed, we are of

the considered opinion that impugned judgment dated

08.05.2008 passed in S.T. No.43/2007 deserves to be

and is hereby set aside. The appellant is acquitted of

the alleged offence punishable under Sections 460 and

302 of the Indian Penal Code.

The appeal filed by the appellant is allowed.

The appellant be accordingly set free forthwith, if not

required in connection with any other case.