Balister vs State

M.C. Jain, J.—Appellant Balister has been convicted u/s 302 read with Section 34, I.P.C. and u/s 201, I.P.C. by the judgment and order dated 28.5.1996 passed by Sri A. B. Shukla, 1st Additional Sessions Judge, Shahjahanpur in S.T. No. 316 of 1994. He has been sentenced to undergo life imprisonment u/s 302 read with Section 34, I.P.C. and to undergo five years'' rigorous imprisonment u/s 201, I.P.C. Both the sentences have been ordered to run concurrently.

The murder of a boy aged about seven years was committed in this incident on 21.1.1993 in between 10.30-11.00 a.m. near the field of Dularey situated in village Pallia, Police Station Katra, district Shahjahanpur. His dead body was recovered from that spot. He was the grandson of the complainant Tej Pal Singh, P.W. 1. The prosecution case as per F.I.R. and the evidence adduced in the Court was that the complainant resided in village Nagla Madha, Police Station Katra, district Shahjahanpur. Co-accused Munendra Pal Singh was the neighbour of the complainant. Two or three days before the occurrence, a quarrel had taken place in between the mother of Munendra Pal Singh and women-folk of the family of the complainant regarding some dispute of children. On that score, an altercation had taken place between the males also of the two families. Deceased Man Mohan Singh was studying in Primary School, Pallia and used to go to school daily. On 21.1.1993, he had left his house in the morning at about 10.00 a.m. to go to the school all alone, as other children of the village had gone to school earlier to him. The boy did not return back in the evening. The complainant became worried and started a frantic search for the boy. When the enquiry was made from other children of the village, they informed that Man Mohan Singh had not gone to school that day. The complainant then became suspicious and went towards the jungle along with Ratibhan Singh and Sripal Singh in search of his grandson Man Mohan Singh. On reaching near Yogyashala. Om Pal Singh P.W. 4 told him that in the morning at about 10.30 a.m. he had seen the boy Man Mohan Singh with Munendra Pal Singh and present accused-Appellant Balister near the field of Murari. On getting this clue, the complainant with the help of other villagers made search for the boy in the Arhar field and found his dead body lying there. The school bag of the boy was lying near by. Hearing this news, Mahendra Pal Singh P.W. 5 and Shiv Ram reached there and told the informant that at about 11.00 a.m. when they were going towards Katra market, they had seen Munendra Pal Singh and the present accused-Appellant coming out of arhar field. At that time, both of them were allegedly frightened by look. The recovery of the dead body of the boy was made from arhar field of Murari at about 5.00 p.m. Complainant Tej Pal Singh wrote the F.I.R. Ext. Ka.-1 and lodged the same at Police Station at 7.00 p.m. A case was registered against Munendra Pal Singh and the present accused-Appellant Balister u/s 302/201, I.P.C. The investigation followed which was conducted by S.I. Ram Gopal Diwakar P.W. 3 and completed by S.I. Chandra Pal Singh P.W. 6.

The post-mortem of the dead body of the deceased was conducted by Dr. D. S. Mathur P.W. 2 on 22.1.1993 at 3.45 p.m. The deceased was aged about seven years and was of average built. About 1-1/2 days had passed since he died. The following ante-mortem injuries were found on his person:

(1) Abrasion 2.0 cm. ? 1.5 cm. on the middle of lower part of chin.

(2) Abraded contusion 7.0 cm. ? 1.0 cm. on the middle of neck, 3.5 cm. below injury No. 1.

(3) Abraded contusion 4.0 cm. ? 1.0 cm. on the front of neck 3 cm. above from the supraclavicular notch.

(4) Multiple abraded contusion in an area beneath and around injury Nos. 2 and 3 size varying from 1.0 cm. ? 0.5 cm. to 0.5 cm. ? 0.2 cm.

In the opinion of the doctor the death had occurred due to asphyxia as a result of ante-mortem strangulation.

Co-accused Munendra Pal Singh absconded and only present accused-Appellant was committed to the Court of Session and he was put on trial. He pleaded not guilty.

The prosecution examined in all seven witnesses out of whom, Tej Pal Singh, P.W. 1 is the grandfather of the deceased. Ompal Singh P.W. 4 and Mahendrapal Singh P.W. 5 were examined as the witnesses of circumstantial evidence. Rest of the witnesses related to medical evidence and to the registration/investigation of the case. The accused-Appellant did not examine any witness in defence. The learned Additional Sessions Judge, before whom the trial was held, believed the prosecution case and evidence as against the present accused-Appellant and convicted and sentenced him as stated in the earlier part of this judgment.

The accused-Appellant is in jail. He preferred this appeal from jail. Sri A. N. Mulla was appointed as Amicus Curiae on 23.3.1999 to argue out the appeal on behalf of the accused-Appellant.

We have heard learned amicus curiae appearing on behalf of the accused-Appellant and the learned A.G.A. from the side of State in opposition of the appeal.

The gist of the submissions from the side of accused-Appellant is that he had no motive whatsoever to commit the murder of Man Mohan Singh. The case is of circumstantial nature and circumstances relied upon by the prosecution to prove him to be guilty do not form a complete chain establishing his guilt, even if they are believed on their face value.

On a careful consideration and on going through the evidence on record, we find substantial force in the submissions made on behalf of the accused-Appellant. Taking the question of motive first, no direct motive has even been alleged by the prosecution against him. The own case of the prosecution is that two or three days earlier to the murder of the boy, a quarrel had taken place between the women-folk of family of the co-accused Munendra Pal Singh and thereafter between the males of both the sides also over some dispute of children and at that time Munendra Pal Singh had allegedly held out a threat to destroy the route itself of the despute. It is obvious that the motive, if any, could be on the part of the co-accused Munendra Pal Singh as per the own showing of the prosecution, and not with the present accused-Appellant. There is nothing to show or presume that the present accused-Appellant was thick with Munendra Pal Singh to such an extent that he could have joined hands with him in murdering an innocent boy of seven years of age of the family of the complainant. Needless to say, the question of motive assumes added importance in a case on circumstantial evidence like the present one. The absence of the motive on the part of accused-Appellant adversely affects the prosecution case so far as he is concerned.

Furthermore, the two circumstances relied upon by the prosecution to back its case against the present accused-Appellant are too weak to lead to a conclusion that he had any hand or role in this murder. The first circumstance is that on 21.1.1993 at about 10.30 a.m. Ompal Singh P.W. 4 had seen Munendra Pal Singh and the present accused-Appellant going with Man Mohan Singh on the road towards the school. Even if his statement is believed in toto, it does not advance the prosecution case much farther. He has not stated that the present accused-Appellant, or for that matter, Munendra Pal Singh had caught hold of Man Mohan Singh at that time. There was nothing unusual if Man Mohan Singh was going on the road and the accused-Appellant (with Munendra Pal Singh) was also spotted by this witness moving on the road which was a public way. It is also significant to point out that the statement of this witness was recorded by the Investigating Officer after about 35-36 days, though he is resident of the same village. There does not seem to be any plausible explanation for such late recording of the statement of this witness Ompal Singh P.W. 4 by the Investigating Officer. Judged with circumspection, evidence of last seen tendered by Ompal Singh P.W. 4 is not of much help.

The only other circumstance on which the prosecution has backed upon is that Mahendra Pal Singh P.W. 5 had seen the present accused-Appellant and Munendra Pal Singh coming out of arhar field of Murari at about 11.00 a.m. and at that time they were frightened. At that time, he had gone to the market but in the evening at about 5.00 p.m. when he came back, he found that Tejpal Singh and others were present near the arhar field and the dead body of Man Mohan Singh was found lying in the arhar field. It then flashed to his mind that at about 11.00 a.m. he had seen the present accused-Appellant and Munendra Pal Singh coming out of the arhar field. He spoke about the same to Tej Pal Singh. To us, the testimony of this witness does not appeal and, in our considered view, learned Court below erred in placing reliance on him. It is pertinent to note that he is the own brother of Tej Pal Singh, P.W. 1. whose grandson the deceased was. Thus, he is an interested witness. The so-called circumstance of this witness having seen the present accused-Appellant coming out of arhar field (with Munendra Pal Singh) at about 11.00 a.m., even if it is believed, cannot prove the accused to be guilty. Law as regards a case based on circumstantial evidence is well embedded that the Court has to be satisfied that various circumstances in the chain of evidence must be established and completed so as to rule out reasonable likelihood of the innocence of the accused. Standard of proof required to convict a person on circumstantial evidence is that the complete chain of circumstances must be consistent only with the conclusion of the guilt of the accused, excluding every other hypothesis. All the circumstances cumulatively taken must lead to the irresistible conclusion that the accused was the author of the crime. Judged according to this standard, the two circumstances relied upon by the prosecution to prove the accused-Appellant to be guilty do not form a complete chain. They were wholly incapable of returning a verdict of guilty as against the present accused-Appellant. The learned trial court has convicted and sentenced the accused-Appellant on superficial approach without an in-depth analysis of the circumstantial evidence adduced by the prosecution. No doubt, an innocent boy of about seven years of age was done to death by strangulation. It is most unfortunate that he became the victim of violence for no reason whatsoever. But the Court of law has its limitation that it is to be guided only by the legal evidence adduced before it. No other extraneous consideration can be taken into account to arrive at the conclusion as to whether a particular crime has been committed by a given accused or otherwise. The circumstantial evidence adduced by the prosecution against the accused-Appellant being wholly meagre and insufficient the appeal has to succeed.

For the discussion made hereinabove, we allow this appeal and set aside the conviction and sentence passed against the accused-Appellant Balister by the learned Sessions Judge. Accused-Appellant Balister is in jail. He shall be set at liberty, if not wanted in any other crime.

Sri A. N. Mulla, amicus curiae who was appointed to defend the accused-Appellant on 23.3.1999 shall get his fee according to rules.