Bharat Singh alias Munna & Others vs State of Madhya Pradesh & Another

This criminal appeal has been filed under

Section 374 of the Cr.P.C. against the judgment dated

17.06.2004 passed by II Additional Sessions Judge,

Fast Track Court, Narsinghgarh in Sessions Trial

No.126/2003, whereby the learned A.S.J. found the

appellants guilty for the offence punishable under

Section 376(2) (G) and 302, of IPC and sentenced

them to 10 Years R.I. and fine of Rs.1,000/- and in

default of payment of fine to undergo three months R.I.

and Life Imprisonment and fine of Rs.5,000/- and in

default of fine, further six months R.I. respectively.

Brief facts of the prosecution case are that

on 31.05.2003 complainant Soma (PW.1) had gone to

Fatehpur. In the morning when he came back home at

5:00 in the evening, his wife Gyarsi Bai (PW.12) told

him that the "Deceased A" (name and identity of the

"Deceased A" imposed by law contained in section

228A of IPC is not disclosed) who went from home at

3:00 in the evening has not returned yet, on which

Soma searched his daughter in the village. During

search Vijendra Singh informed him that two children

Sundar (PW.3) and Hari Singh (PW.4), who were

grazing cattle had told him that a dead body of a lady

was lying in Mithi Bedara "Nala". On that Soma and his

brother Shankar (PW.2) interrogated Sundarsingh and

Harisingh and they told that they heard the shouting

coming from Bedari Nala and also saw the appellants

Laxminarayan and Gyan Singh going from there and

their clothes were stained with blood. On the

information, Soma along with his brother reached at

Bedara ''Nala'' where they saw that the dead body of

"Deceased A" extensively stained with blood was lying

and there was an injury on her head and near her body

bloodstained stones, a handkerchief & a iron rod were

also lying there. On that Soma lodged the FIR

(Ex.P/15) on 01.06.03 at Police Station Kurawar. That

report was written by B.L. Sharma (PW.16) A.S.I. and

on that report Crime No.132/2003 was registered

against the appellants for the offences punishable

under Sections 302 / 34 of IPC and also registered merg

no.09/03 U/s.174 of Cr.P.C . (Ex.P/16).

After registering the offence B.L. Sharma

investigated the matter. During investigation he

reached the spot where he prepared spot map

(Ex.P/17) and after issuing notice (Ex.P/8) called the

witnesses and made inquest memo (Ex.P/9) of the

dead body of "Deceased A" in the presence of

witnesses and took photographs of the spot. He also

seized Two bloodstained stones, bloodstained and

simple soil, a bloodstained iron rod, a pair of lady

footwear, one button, one iron spring, one blood

stained handkerchief and one stone and prepared

seizure memo (Ex.P/18 to ExP20) He also sent the

dead body of "Deceased A" to civil hospital

Narsinghgarh for postmortem along with a letter (Ex.P/

3-A) where Mahendra Kumar Gupta (PW.7) conducted

autopsy and gave the report ExP3. He also prepared

slide of vaginal discharge of deceased and also seized

her cloth and sent to Police Station in a sealed packet

along with seal impression which were also seized by

the police and seizure memo Ex.P/2 was prepared.

B.L. Sharma also recorded the statements of

witnesses Soma (PW.1), Shankar (PW.2), Sundarsingh

(PW.3), Hari Singh (PW.4), Ratanlal (PW.8), Nain

Singh Gurjar (PW.9), Motilal (PW.10), Khub Chandra

(PW.11), Gyarsi Bai (PW.12) and Jagannath (PW.13)

and arrested the accused/appellants and prepared the

arrest memo (Ex.P/9 & Ex.P/10). Soon after the arrest

he interrogated the appellants and on the information

of appellant Laxminarayan one bloodstained T-Shirt

and a bicycle was recovered from his house and on the

information of appellant Gyan Singh one bloodstained

Shirt was recovered from his house and he prepared

memorandum (ExP./11 and ExP.12) and seizure memo

(Ex.P/13 and ExP.14) respectively. The appellants

were also sent for medical examination and the

medical reports (Ex.P/21) and Ex.P/22) were received

the seized articles were sent to FSL, Sagar through

S.P. Rajgarh along with draft ExP.23. The report (Ex.P/

24 & Ex.P/25) was received from FSL, Sagar.

After the investigation charge-sheet was filed

against the appellants before the J.M.F.C.,

Narsinghgarh, who committed the case to court of

session. On that S.T. No.126/2003 was registered.

Learned IInd ASJ, Narsinghgarh framed the charge

against the appellants for the offences under Sections

376(2)(G) and 302 of IPC and tried the case.

Prosecution produced as many as Sixteen

witnesses for proving his case. Although appellants

took the defence that they have falsely been implicated

in the matter. However, the trial Court has found both

of them guilty for the aforesaid charges and sentenced

them as mentioned above. Being aggrieved from that

judgment, appellants filed this criminal appeal.

Learned counsel for the appellants submitted

that there is no eye-witness of the incident and the

prosecution case is solely based on circumstantial

evidence. It is settled that when there is no direct

witness to the commission of offences the case rests

entirely on circumstantial evidence, all the

circumstances from which an inference of guilt is

sought to be drawn must be cogently and firmly

established. Those circumstances should be of a

definite tendency unerringly pointing towards the guilt

of the accused. The circumstances, taken cumulatively,

should form a chain so complete that there is no

escape from the conclusion that within all human

probability the crime was committed by the accused

and none, else. The circumstantial evidence in order to

sustain conviction must also be complete and

incapable of explanation of any other hypothesis than

that of the guilt of the accused.The circumstantial

evidence should not only be consistent with the guilt of

the accused but should be inconsistent with his

innocence. If any of the said circumstances are

consistent with the innocence of the accused or the

chain of the continuity of the circumstance is broken,

the accused is entitled to the benefit of doubt.

While In the instant case no chain of

circumstance is proved by the prosecution against the

appellants. Learned trial court merely on the basis of

recovery of blood stained clothes from the appellants,

and on the evidence that appellant Laxminarayan was

found near the dead body of "Deceased A" and at that

time his clothes were bloodstained found appellants

guilty. While the evidence regarding recovery is not

trustworthy. Even otherwise there is no evidence that

the blood group of blood found on sized clothes of

appellants matched with the blood group of "Deceased

A". So, only on that recovery, and on the ground that

appellant Laxminarayan was found near the dead body

of "Deceased A" and at that time his clothes were

bloodstained. It cannot be assumed that appellants

murdered "Deceased A" .

Likewise, there is no evidence on record that

appellants committed rape with "Deceased A". Learned

trial court only on the basis of statement of Dr.

Mahendra Gupta (PW7) which is based only on

conjecture wrongly found appellants guilty for

committing rape with "Deceased A". In this regard he

also placed reliance on apex court judgement passed

in Sattatiya @ Satish Rajanna Kartalla vs. State of

Maharashtra AIR 2008 SC 1184 and Chandra Kumar

Kankariya and others vs. State of M.P . 2007 (2) JLJ

357

On the other hand Learned counsel for the

respondent/State submitted that from the evidence

produced by the prosecution it is clearly proved that

appellants raped with "Deceased A" and murdered her.

So the trial Court did not commit any mistake in finding

appellants guilty for the aforesaid offences.

This court has heard the learned counsel for

the parties and perused the record. So as far as the

death of "Deceased A" is concerned, there is no

dispute in the case that on 31.05.2003 "Deceased A"

died at Bedri Nala and her death was homicidal which

amounts to murder. In this regard B.S. Sharma

(PW.16) deposed that on 01.06.2003 he was posted as

ASI, P.S. Kurawar. On that day Soma lodged a report

Ex.P/13. On that report he registered Crime

No.132/2003 for the offences punishable u/S.302/34 of

IPC . and also registered merg No.9/2003 u/S.174 of

Cr.P.C . Ex.P/16. After that he went on the spot and

prepared spot map Ex.P/17 where he found that dead

body of "Deceased A" lying and issued notice Ex.P/8,

called the witnesses and in their presence made

inquest memo Ex.P/9, which was also proved by

Soma(PW.1) father of the "Deceased A" Gyarasibai

(PW.12), mother of the "Deceased A", Khoob Chand

(PW.11), Shankar (PW.2), Ratanlal (PW.8). They also

deposed that they saw dead body of "Deceased A" on

the spot. Police prepared inquest memo Ex.P/9. In that

memo also mentioned that "Deceased A" died due to

injuries. Their testimony is duly corroborated by the

statement of Dr.Mahendra Kumar Gupta (PW.7) who

conducted P.M. of dead body of "Deceased A".

Dr. Mahendra Kumar Gupta (PW.7), deposed

that on 01.12.2003 he was posted as medical officer in

the civil hospital, Narsinghgarh. On that day at 11:00

am he conducted the postmortem of dead body of

"Deceased A" and found following injuries on her body:

" 1. Lacerated wound size 3 x ? x ? cm over the mid of the forehead. 2. Lacerated wound - two in number over occipital region of the head size 3 x ? x ? cm and 2cm x ? cm x bone deep. Occipital bone was also fractured. 3. Abrasion size 3 x 2 cm over the right hand. 4. Abrasion size 2 x 2 cm over the mid of the right forearm. 5. Lacerated wound over the tip of the left ring finger and between index finger and middle finger. 6. Multiple small bruises over right half of the abdomen. 7. Small abrasion over both labia majora. 8. Multiple small Bruise over mid and left lateral aspect of left side of neck. 9. Bruise size 3 x 2 cm over the left infrascapular region. 10. Bruise size 3 x 2 cm with swelling over left temporal region of head. 11. Bruise size 3 x 2 cm over medial aspect of right upper thigh. 12. Abrasion size 2 x 2 cm over anterior aspect of both knee joint.

He also deposed that "Deceased A" died due

to head injury which was dangerous to life and her

death was homicidal in nature. She was pregnant at

the time of death and her death took place within 12 to

24 hours from the autopsy.

B.S. Sharma (PW.16) also deposed that

during investigation he seized two bloodstained stones,

bloodstained and simple soil a bloodstained iron rod, a

pair of lady footwear, one button, one iron spring, one

blood stained handkerchief and one stone and

prepared seizure memo (Ex.P/18 to ExP20) and sent

seized articles to FSL, Sagar through S.P. Rajgarh

along with draft ExP.23. The report (Ex.P/24 & Ex.P/25)

was received from FSL. IN the report ExP. 25 it is

mentioned that human blood was found on blood

stained soil and clothes of "Deceased A". Up to that

extent there is no important contradictions in the

statement of prosecution witnesses and appellant also

did not challenge the prosecution evidence on that

point. So there is no reason to disbelieve the statement

of prosecution witnesses on that point. From the

prosecution evidence as discussed above it is clearly

proved that on 31.11.03 "Deceased A" died at Mithi

Bedri and her death was homicidal in nature which

amounts to murder.

On the point whether appellants raped with

"Deceased A" and murdered her, there is no eye

witness of the incident. Although prosecution produced

Sundarsingh (PW.3) & Hari Singh (PW.4) as an eye

witnesses of the incident but they did not support the

prosecution story on that point. Sundarsingh (PW.3) &

Hari Singh (PW.4) in their statements clearly denied

from the fact that on the date of incident when they

were grazing cattle at Bedri Nala they heard the sound

of a woman screaming from the Bedri Nala and also

denied from the fact that they saw appellants

assaulting "Deceased A" by stone or that appellants

had told them not to tell anyone that they had come

there otherwise they would implicate them in the

incident. There is no other eye witness of the incident.

Although Soma (PW.1) deposed that Nain

Singh Gurjar (PW.9) told to him that Sundarsingh

(PW.3) & Hari Singh (PW.4) told him that appellants

murdered his daughter but he is not an eyewitness of

the incident. He deposed that fact on the basis of

information given to him by Nain Singh (PW.9) while

Nain Singh was also not an eyewitness of the incident.

Even on that point Nain Singh did not support the

prosecution story and clearly denied from the fact that

Sundarsingh (PW.3) & Hari Singh (PW.4) told him that

appellants murdered "Deceased A". Even Sundarsingh

(PW.3) & Hari Singh (PW.4) also denied the fact that

they saw the incident. So statement of Soma (PW1)

regarding involvement of appellants in the said crime is

hearsay evidence, which is not admissible in the

evidence. Shankar (PW.2) only deposed that on the

information he reached the spot where he saw a dead

body of "Deceased A" in injured condition.

Nain Singh (PW.9) only deposed that on the

information that one dead body was lying near Phoota

Talab he reached on the spot where he saw a dead

body of a woman. He denied from the fact that at that

time Sundarsingh (PW.3) & Hari Singh (PW.4) told him

that they saw appellants assaulting "Deceased A" and

that he gave statement (Ex.P/6) to the Police in this

regard.

Motilal (PW.10) only deposed that he heard

that someone murdered daughter of Soma and denied

from the fact that appellants murdered "Deceased A".

Khoob Chand (PW.11) only deposed that someone

informed him that appellants tried to rape "Deceased

A" and murdered her but he is also not the eye witness

of the incident. His statement is based on hearsay

evidence and not admissible in evidence. Although

Gyarasibai (PW.12), mother of the "Deceased A" also

deposed that appellants murdered her daughter but

she is also not an eyewitness of the incident. So her

statement has no value. So their is no direct evidence

on record to prove the guilt of the appellant.

As far as circumstantial evidence is

concerned, the normal principle in a case based on

circumstantial evidence is that the circumstances from

which an inference of guilt is sought to be drawn must

be cogently and firmly established; that those

circumstances should be of a definite tendency

unerringly pointing towards the guilt of the accused;

that the circumstances taken cumulatively should form

a chain so complete that there is no escape from the

conclusion that within all human probability the crime

was committed by the accused and they should be

incapable of explanation on any hypothesis other than

that of the guilt of the accused and inconsistent with

their innocence." as held by the apex Court in the

matter of Trimukh Maroti Kirkan vs. State of

Maharashtra, (2006) 10 SCC 681. The same

principles were reiterated in Sunil Clifford Daniel vs.

State of Punjab, (2012) 11 SCC 205, Sampath

Kumar vs. Inspector of Police, Krishnagiri (2012) 4

SCC 124 and Mohd. Arif @ Ashfaq vs. State (NCT of

Delhi ), (2011) 13 SCC 621. on that principles if we

examine the evidence produced by the prosecution

against the appellants.

Against the appellant Gyan Singh

prosecution produced Sundarsingh (PW.3) & Hari

Singh (PW.4) to prove the fact that they also saw

appellant Gyan Singh on the spot along with co

accused Laxmi narayan and his clothes were blood

stained, but in their court statements they clearly

denied from the fact that they saw appellant Gyan

Singh on the spot with his clothes bloodstained.

From the prosecution evidence only one

circumstance appears against the appellant Gyan

Singh that Police recovered his blood stained shirt and

one bicycle from his possession. IN this regard B.S.

Sharma (PW.16) deposed that he arrested the

appellant Gyan Singh on 01.12.03 and prepared arrest

memo (Ex.P/10). After that he interrogated appellant

Gyan Singh, who informed that he concealed shirt and

one bicycle in his house on which he prepared memo

(Ex.P/12)and recovered one shirt and one bicycle from

his possession and prepared seizure memo (Ex.P/14).

In the F.S.L. report it was mentioned that Human blood

was found on that shirt. But it is not mentioned in the

report that blood group of blood found on sized shirt of

appellant Gyan Singh matched with the blood group of

"Deceased A". Ho''ble apex court in the case of

Namdeo Daulata Dhayagude And Ors. vs State Of

Maharashtra AIR 1977 SC 381 held the evidence of

recovery of human blood-stained clothes from

accused cannot be regarded as a conclusive piece of

evidence. but it is certainly a piece of evidence which

goes to support the other evidence about the guilt of

accused in the case of Kansa Behera vs State Of

Orissa reported in AIR 1987 SC 1507 apex court also held circumstantial evidence recovery of blood

-stained clothes from accused - report of sociologist

that the clothes were stained with human blood but

blood group not indicated- evidence of blood group is

only conclusive to connect bloodstains with accused no

reliance could be placed on the circumstance. In this

case also only one circumstance that Human blood

was found on the shirt of applicant Gyan Singh is

proved against him. So only on that circumstance It

can not be assumed that applicant Gyan Singh

murdered "Deceased A".

As far as appellant Laxminarayan is

concerned, Sundarsingh (PW.3) deposed that on the

date of incident he and Hari singh had gone for grazing

cattle. At 3:30 pm at Mithi Bedara "Nala" he saw dead

body of "Deceased A" lying there and Laxminarayan

was also standing near the dead body. His clothes

were blood stained. He asked him that why he had

came there to which Laxminarayan replied that he had

come there for searching his cow. and Hari Singh (PW/

4) deposed that on the date of incident when he and

Sundar Singh had gone for grazing cattle at 2:30 pm at

Mithi Bedara "Nala"'' he saw Laxminarayan standing

there, who told him that he had lost his cow. Laxmi

Narayan''s clothes were blood stained, he asked him

that why his clothes were bloodstained, to which

Laxminarayan told him that he had killed a snake

whose blood stains were on his clothes. On that we

asked Laxminarayan to show the snake, then he told

them not to go there as a dead body was lying there.

Then Lakshminarayan went away for bath. He had

seen from a distance, a corpse of the girl lying there.

Then they returned to village and informed Mangilal

that a dead body was lying at Meethi Bedari.

But in this regard the statements of

Sundarsingh (PW.3) & Hari Singh (PW.4) are

contradictory in their case diary statement it is

mentioned that they apart from appellant

Laxminarayan also saw appellant Gyan Singh on the

spot. But in the Court statement they denied from the

fact and stated that they only saw Laxminarayan on the

spot and also denied to the fact that he stated the

names of Gyan Singh, in their case diary statement

Ex.P/1 to police. which shows that either they had

earlier wrongly informed the police that they were also

saw appellant Gyan Singh on the spot or they were

trying to save him before the court. So their statement

become doubtful.

Even if their statement assuming correct.

From their statements only circumstances is appears

that they saw accused Laxminarayan near dead body

of "Deceased A" and at that time clothes of

Laxminarayan was stained with blood. While learned

trial court on the basis of these statements assumed

that Laxminarayan was last seen with the "Deceased

A" but this finding of the trial Court is not appears to be

correct.

The theory of ''last seen together'' is one

where two persons are ''seen together'' alive and after

an interval of time, one of them is found alive and the

other dead, if the period between the two is short,

presumption as to the person alive being the author of

death of the other can be drawn. But in this case it is

not a story of the prosecution that appellant

Laxminarayan was seen with "Deceased A" and that

time both were alive and after interval of time

"Deceased A" was found dead. So there is no case of

last seen.

From the statements of Sundarsingh (PW-3)

& Hari Singh (PW-4) only circumstance which appears

is that they saw accused Laxminarayan near dead

body of "Deceased A" and at that time clothes of

Laxminarayan were stained with blood.

B.S. Sharma (PW.16) deposed that he

arrested appellant Laxminarayan on 01.12.03 and

prepared arrest memo (Ex.P/10). Soon after arrest on

interrogation he, informed that he concealed T-shirt

and in his house. On that he prepared memorandum

(Ex.P/11) and recovered one T-shirt from his

possession and prepared seizure memo (Ex.P/13).

So from the prosecution evidence Against

appellant Laxminarayan only two circumstances are

proved one Sundarsingh (PW.3) & Harisingh (PW.4)

saw him near the dead body of "Deceased A" at Mithi

Bedri on the date of incident and that at that time his

clothes were stained with blood and that blood stained

T-shirt was sized by B.S. Sharma (PW.16) on 01.12.03

from his possession.

B.L. Sharma (PW.16) had also deposed that

he seized one button from the spot and that one button

of the T-shirt that he had seized from Laxminarayan''s

possession was missing. But in the FSL report

Ex.P/24, it is mentioned that button which was seized

from the spot and the remaining buttons of the T-shirt

sized from the possession of Laxminarayan are

different. So this circumstance has no value.

As regards the above two circumstances, in

the F.S.L. report it is only mentioned that Human blood

was found on sized T-shirt (Article R ). But in the report

there is no mention that the blood group of blood found

on sized T-shirt of appellant Laxminarayan matched

with the blood group of "Deceased A". So only on the

basis of two circumstances that Sundarsingh (PW.3) &

Hari Singh (PW.4) saw accused Laxminarayan near

the dead body of "Deceased A" and they also saw

bloodstains on his clothes and those blood stains were

of human blood, it cannot be assumed that

Laxminarayan murdered "Deceased A".

Likewise learned trial court only on the

statement of Dr. Mahendra Kumar Gupta (PW.7) found

it proved that in the incident appellants also committed

rape with "Deceased A". This finding of the trial court

also does not appear to be correct. Dr. Mahendra

Kumar Gupta (PW.7) only deposed that the injury

found on the genitals of "Deceased A" indicates the

rape was committed with her at the time of incident, but

final conclusion would depend on chemical

examination report of vaginal discharge of "Deceased

A". while in the F.S.L. report Ex.P/25, it is mentioned

that no semen was found in slide of vaginal discharge

of the "Deceased A" and it is also mentioned in the

report that no spot of seman were found in sized

underwear of appellants. So only on the basis of

statement of Dr. Mahendra Kumar Gupta (PW.7) it can

not be assumed that at the time of incident rape was

also committed with "Deceased A". learned trial Court

also committed mistake in holding that at the time of

incident rape was also committed with "Deceased

A".and that was committed by the appellant.

From the above discussion, in the

considered opinion of this Court from the evidence

produced by the prosecution against the appellants it

cannot be assumed that appellants committed rape

with "Deceased A" and murdered her. The trial Court

has wrongly found appellants guilty for murdering and

committing rape with the "Deceased A". Hence appeal

is allowed and the appellants are acquitted from the

charges u/s 376(2) (G) and 302, of IPC . Appellants are

in jail so they be released forthwith if not required in

any other case.

With the aforesaid observations and

directions the appeal is disposed of.