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Judgment
This appeal has been filed against the judgment of conviction and order of sentence dated 13.12.2011 passed by the Additional Sessions Judge,
Sakti, District Janjgir Champa in S.T. No.91/10 convicting the accused/appellants under Section 302/34 of the Indian Penal Code (for short 'the IPC')
and sentencing each of them to undergo R.I. for Life and to pay a fine of Rs.3,000/-, in default to undergo additional R.I. for 05 months.
In the present case name of deceased is Bablu @ Manmohan @ Mohan.
As per prosecution case, on 25.2.2010 there was some dance programme in village Kirari. On the same day at about 7.00 p.m. when deceased
Manmohan along with his mother was standing near his house, he received a call on his cell phone of accused/appellant No.2 Lokeshwar inviting him
to join him to see dance programme, whereupon the deceased after taking meals left his house at about 7.30 pm. Immediately thereafter mother of
deceased also left the house and had gone to the house of one Khageshwar Sarthi. Further case of the prosecution is that while the deceased and
accused/appellant No.2 were going to watch the dance programme, on the way accused/appellant No.2 met them and on being informed by deceased
and accused No.1 that they are going to watch a dance, he expressed his desire to go along with them. While Kamlabai (PW-1) was sitting in the
house of Khageshwar, there was some noise in the locality that accused persons have killed one boy. Soon thereafter both the accused persons came
to the house of Khageshwar, enquired about mother of accused/appellant No.2 and went back. It is further case of the prosecution that the accused
persons made extra-judicial confession before Kamlabai (PW-1), mother of deceased, that they have killed the deceased. It is also the case of the
prosecution that while accused/appellant No.2 and deceased were going together, accused/appellant No.1 showed his desire to join them and this was
seen by Amritlal (PW-5). Dead body of the deceased was found lying in a village pond. After identification, FIR (Ex.P-2) was lodged by Kamlabai
(PW-1) on 26.2.2010 at 5.00 a.m. against the appellants under Section 302/34 of IPC. Merg Intimation (Ex.P-1) was registered at the instance of
PW-1. Inquest over the body of deceased was prepared vide Ex.P-4 on 26.2.2010. Body of the deceased was sent for post-mortem examination
which was conducted by Dr. N.P. Mishra (PW-17) and he noticed following injuries;-
• Incised wound on 2nd finger of left hand at middle of ½†x ¼†x ¼†in size.
• Incised wound on 3rd finger of left hand at middle of ½†x ¼†x ¼†in size.
• Incised wound on left side of occipital region of ½†x ¼†x ¼†in size.
• Incised wound on the neck below chin of 3†x ¼†x ¼†in size.
• Incised wound on neck of 2½†x ¼†x ¼†in size.
• Bruise on left side of eye below lower lid of 1â€x ½†in size.
• Incised wound on left side of face of 1†x ¼†x ¼†in size.
The doctor has opined that cause of death appears to be asphyxial due to drowning at semi conscious position on account of injuries and the death was
homicidal in nature. On 26.2.2010 memorandum statement (Ex.P-10) of accused/appellant No.1 was recorded in which he made disclosure statement
and in pursuance of such disclosure statement he got recovered one axe and clothes vide seizure memos Ex.P-10 & Ex.P-14 respectively. Likewise,
memorandum statement of accused/appellant No.2 was also recorded vide Ex.P-8 and based on which knife, clothes and cell phone were seized vide
seizure memos Ex.P-9 & Ex.P-13. Seized articles were sent for chemical examination to the Forensic Science Laboratory from where report of
Ex.P-33 was received confirming presence of blood on the knife seized from accused/appellant No.2 and shirts of accused/appellants.
On completion of investigation, charge sheet for the offence punishable under Section 302/34 IPC was filed against the accused/appellants and
accordingly the charge was framed against them by the trial Court. The prosecution in order to bring home the charge levelled against the
accused/appellants examined 23 witnesses in all. Statements of accused/appellants were recorded under Section 313 of Cr.P.C. in which they abjured
their guilt and pleaded innocence & false implication.
After hearing the parties, the Court below has convicted & sentenced the accused/appellants in the manner as described above.
Counsel for accused/appellant submits that;-
• there is no eyewitness to the occurrence and conviction of appellants is based on the circumstantial evidence but none of the circumstances from
which inference of guilt of appellants could be drawn has been proved beyond doubt by the prosecution. Therefore, there can be no inference that it
was the appellants who committed the crime in question.
• Kamlabai (PW-1) has improved while deposing in the Court and thus she is totally unreliable witness.
• Last seen evidence of PW-5 is not reliable atleast against appellant No.1 because this witness has nowhere stated that this appellant had also
accompanied the deceased and appellant No.1.
• in absence of serological report, FSL report showing presence of blood is of no consequences.
On the other hand, supporting the impugned judgment learned counsel for the State submits that conviction of accused/appellant is strictly in
accordance with law and there is no illegality or infirmity in the same warranting interference by this Court. It has been argued that minor
improvements in the statement of Kamlabai (PW-1) will not vitiate the entire prosecution case in particular considering the fact that she is a rustic
villager and lost her young son. If the entire evidence is assimilated the chain of circumstances is complete and it indicates that it is the accused
persons who have killed the deceased. Though Amritlal (PW-5), witness of last seen, may not have stated in specific term that accused/appellant
No.2 had also joined the company of deceased and accused/appellant No.1 but from the statement of this witness an inference can be drawn that
after making query from Lokeshwar (accused No.1) and deceased, accused/appellant No.2 also made up his mind to join them. Statement of PW-13
to the effect that accused/appellant No.1 informed him that accused / appellant No.2 and deceased are quarrelling makes it clear that
accused/appellant No.2 had also accompanied them.
We have heard counsel for the parties and perused the evidence available on record.
Kamlabai (PW-1), mother of deceased and lodger of Merg Intimation (Ex.P-1) & FIR (Ex.P-2). According to this witness, on the fateful evening
when she and her son (deceased) were standing near boring located in front of her house, her son received a call on his mobile and being asked, he
informed that accused/appellant No.1 had called him for seeing the dance. She has further stated that after taking meals, her son (deceased) left the
house and she also went to the house of Khageshwar for watching television. At about 7-8 in the night, accused/appellants came to the house of
Khageshwar and accused/appellant No.2 enquired from him about his mother. At that time clothes of both the accused were soaked with mud. She
has further stated that on hearing the loud noise from outside, both the accused persons rushed outside the house. On hearing noise, they also came
out of the house and saw that the villagers gathered outside the house of Khageshwar were asking from the accused persons as to whom they have
killed. At that time her son (deceased) and accused Chunnilal were not there. She has further stated that she tried to contact her son on his mobile but
could not connect to him. When she reached the house of Amritlal (PW-5) in search of her son, she was informed by him that he saw her son in the
company of accused persons. On coming to know about the aforesaid fact, she suspected that the accused persons might have killed her son. She has
further stated that on being asked by the villagers, accused/appellant No.1 admitted to have killed deceased along with accused/appellant No.2. Next
morning she along with her husband had gone to the police station and lodged the report of incident. In the cross-examination certain questions were
put to this witness regarding character of the deceased to the effect that he was a womaniser, used to tease the girls of the village and used to take
their photographs from his mobile, but all these suggestions have been flatly denied by her.
Dhurwa Ram (PW-2) is the witness of inquest (Ex.P-4), but he did not support the prosecution and turned hostile.
Amritlal (PW-5) has been examined as a witness of last seen. According to this witness, on the fateful night at about 8, he along with accused/
appellant Chunnilal was sitting outside his house. Accused/appellant No.1 and deceased came from the road side and being asked by
accused/appellant No.2, they informed that they are going to watch the dance programme organized in village Kirari. Hearing this, accused/ appellant
No.2 left the place saying that he is coming back after changing his clothes. 5-10 minutes thereafter mother of deceased came there and on being
asked by her, he told that they were saying that they would go to see the dance. He has further stated that after half-an hour thereafter he heard that
some people have killed somebody near the village pond.
Chandrika Prasad Nishad (PW-6) is the witness of inquest (Ex.P-4). Rajkumar Nishad (PW-7) is the witness of inquest (Ex.P-4), memorandum
statements of accused/appellants recorded vide Ex.P--8 & P-10 respectively. Seizure memos Ex.P-9, P-11 to P-14.
Bharatlal (PW-7), village Kotwar, Gaurilal alias Bauna (PW-9), Madhu Chouhan (PW-11), father of deceased, Vinod Chouhan (PW-12) are the
hearsay witness having no personal knowledge about the incident.
Ashok Chouhan (PW-13) has deposed that on the date of incident he was in his house. At about 7-8 in the fateful night, hearing noise he came out
of his house and reached near the house of Kamlabai (PW-1), who was crying. He came to know from the people present there that on being
enquired by Kotwar Vinod Chouhan (PW-12), accused/appellant No.1 informed that accused/appellant No.2 and the deceased had been quarrelling
near the pond.
Dujeram Bareth (PW-14) is the witness of memorandum statements (Ex.P-8 & P-10) and seizure memos Ex.P-9, P-11 to P-14. He has duly
supported the prosecution case.
Brijpal Burman (PW-15), Mohanidas Anant (PW-18), D.K. Mishra (PW-19), is the police person who assisted in the investigation. I.C. Shandilya
(PW-
16) is the investigating officer who has duly supported the prosecution case.
Dr. N.P. Mishra (PW-17) is the doctor who conducted post-mortem examination over the body of deceased and noticed the injuries as described
above. He has opined that cause of death of the deceased was asphyxia due to drowning in semi unconscious condition and the death was homicidal
nature.
Santosh Kumar (PW-21) has deposed that on the date of incident he had talked to the deceased on his mobile and on being asked the deceased
told him that he is along with accused Lukeshwar near the village pond.
Shyam Singh Markam (PW-22) is the Patwari who prepared the spot map vide Ex.P-6. Deenbandhu Chouhan (PW-23) is the witness of spot map
(Ex.P-15).
Since prosecution witnesses namely Dhanau Gada (PW-3), Ghurau Ram (PW-4), Lachhiram (PW-10), Ramlal Nishad (PW-20) have not stated
anything specific against the accused persons, there is no need for us to discuss their evidence here.
In the case in hand, admittedly there is no eyewitness and the conviction of accused/appellants is based upon the circumstantial evidence i.e. last
seen theory coupled with extra-judicial confession made by one of the accused and recovery of bloodstained articles at their instance.
The law relating to circumstantial evidence is well settled. In dealing with circumstantial evidence, there is always a danger that conjecture or
suspicion lingering on mind may take place of proof. Suspicion howsoever strong cannot be allowed to take place of proof and, therefore, the Court
has to judge watchfully and ensure that the conjectures and suspicions do not take place of legal proof. Human agency may be faulty in expressing
picturization of actual incident but the circumstances cannot fail. Therefore, many a times, it is aptly said that ""men may tell lies, but circumstances do
not"". In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first
instance, be fully established. Each fact must be proved individually and only thereafter the Court should consider the total cumulative effect of all the
proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in
establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/themselves, is/are
not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean
that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the
accused, howsoever extravagant and fanciful it might be. There must be a chain of evidence so far complete as not to leave any reasonable ground
for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been
done by the accused. Where the various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to
lend assurance to the Court. If the circumstances proved are consistent with the innocence of the accused, then the accused is entitled to the benefit
of doubt. However, in applying this principle, distinction must be made between facts called primary or basic on the one hand and inference of facts to
be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence and decide whether that
evidence proves a particular fact or not and if that fact is proved, the question arises whether that fact leads to the inference of guilt of the accused
person or not. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should be no missing links in the case,
yet it is not essential that every one of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred
from the proved facts. In drawing these inferences or presumptions, the Court must have regard to the common course of natural events, and to
human conduct and their relations to the facts of the particular case.
Having noticed the relevant principles governing a case based on circumstantial evidence, this Court proposes to consider the question whether the
case against the appellant is proved.
As regards the evidence of last seen, the prosecution to prove the fact of last seen examined Amritlal (PW-5). According to PW-5, on the fateful
accused Lokeshwar and deceased Mohan came to them from the road side and on being asked by accused Chunnilal, they told him that they are
going towards the locality to see dance. Said fact being disclosed by those persons, accused Chunnilal moved to his house saying that he is coming
back after changing clothes. Whereas, in the cross-examination this witness has admitted that shortly after departure of accused Lokeshwar &
deceased, accused Chunnilal had moved to his house saying that he is coming back after changing clothes. Thus, this witness has nowhere stated that
he had seen accused/appellant No.2 accompanying the deceased. Therefore, from the evidence on record, on the point of last seen together, there is
no sufficient and reliable evidence of last seen together as far as appellant Chunnilal is concerned. So far as accused/appellant Lokeshwar is
concerned, no doubt the statement of Amritlal (PW-5) to the effect that he saw this appellant going along with the deceased towards the place where
dance was organized creates suspicion against this appellant, but mere suspicion is not sufficient to hold that there is reasonable prospect of convicting
this appellat of the offence like murder. Merely because PW-5 had seen the deceased and this appellant together on the date of incident, it is not
sufficient to give rise to inference that it is he who committed the murder of deceased. Had it been the case where, after being seen by this witness,
this appellant was also seen by someone at or near the place from where the dead body was recovered or it is he who got recovered the body of
deceased from inside the pond, the position would have been different. It is trite law that suspicion, howsoever, strong cannot take the place of proof,
whether the allegations are sought to be established by direct evidence or by circumstantial.
Another circumstance sought to be relied upon by the prosecution is that extra judicial confession was made by appellant Lokeshwar admitting to
have killed the deceased along with accused Chunnilal. According to Kamla Bai (PW-1), in the fateful night itself accused Lokeshwar had confessed
before her and other villagers namely Ramlal, Ghurau, Arjun, Anandram, Suklal, Bedram, Khageshwar, Bahradihin, Gharghodahin, Jabalhine etc. that
he along with co-accused Chunnilal had killed the deceased. However, if the diary statement of this witness is seen, which was recorded after the
incident, there is no such statement regarding extra-judicial confession being made by accused Lokeshwar before her or any other villager.
Furthermore, there is no reference of extra judicial confession in FIR (Ex.P-2) or Inquest (Ex.P-4) or in the evidence of Ghurau Ram (PW-4), who
was also said to have been present when the confession was made by accused Lokeshwar. It may be relevant here to point out that FIR and inquest
were admittedly made after the confession is alleged to have been made to aforesaid witness and PW-1 would have surely mentioned this fact in the
FIR & Inquest, if, infact, the story about making extra-judicial confession was correct. Alas! there is no mention of the same in the aforesaid
documents. In these circumstances, the statement of Kamlabai (PW-1) to the effect that accused Lokeshwar had confessed his guilt to her cannot be
relied upon.
As far as the recovery of bloodstained axe, knife and shirts at the instance of accused/appellants is concerned, no doubt, in the report of FSL the
aforesaid articles were found to be stained with blood but there is no report of serological department opining the same blood group on the alleged
weapons of offence i.e. axe & knife, and shirts of appellants as that of the deceased and thus the prosecution has further failed to connect the alleged
recovered articles with the commission of offence. For this view we are fortified from the decision in the matter Kansa Behera v. State of Orissa
reported in AIR 1987 SC 1507 wherein the Supreme Court while dealing with recovery of bloodstained articles has observed thus;-
“12. As regards the recovery of a shirt or a dhoti with blood stains which according to the serologist report were stained with human blood but
there is no evidence in the report of the serologist about the group of the blood and therefore it could not positively be connected with the deceased. In
the evidence of the Investigating Officer or in the report, it is not clearly mentioned as to what were the dimensions of the stains of blood. Few small
blood stains on the cloths of a person may even be of his own blood especially if it is a villager putting on these clothes and living in villages. The
evidence about the blood group is only conclusive to connect the blood stains with the deceased. That evidence is absent and in this view of the
matter, in our opinion, even this is not a circumstance on the basis of which any inference could be drawn.â€
In the light of the discussions above, we are of the considered view that it cannot be said to be a case where the prosecution has established a
complete chain of circumstances which rules out the possibility of involvement of any other person and unerringly points finger at the appellants to be
the authors of the crime in question. The learned trial Judge convicted the appellants on the basis of presumption and suspicion but the conviction
cannot be based on suspicion nor on the conscious of the Court being morally satisfied about the complicity of an accused. In such a situation the
benefit of doubt must go to the accused/appellants.
In the result, the appeal stands allowed. Conviction and sentence of accused/appellants under Section 302/34 of IPC are hereby set aside and they
are acquitted of that charge by extending them benefit of doubt. Appellant No.1 Chunnilal is reported to be on bail. His bail bonds stand discharged.
Appellant No.2 Lokeshwar is reported to be in custody. He be set at liberty forthwith if not required to be detained in connection with any other
offence.