Harishchandra vs State of M.P. (Now C.G.)

Hon''ble Shri Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 21st of August, 1996 passed in Sessions Trial No. 177/93 by the Additional Sessions Judge, Balauda Bazar. By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 5,000/- with default sentence of R.I. for 3 years. The facts, briefly stated, are as under :--

Deceased- Ajay Gupta was missing since 9.00 p.m. of 8.8.92. His dead body was found in Khorsi Nala in drowned condition at 10.00 a.m. on 10.8.92. Kotwar-Balidas (PW-2) gave information to the police. The dead body could not be identified, however, inquest (Ex.-P/5) on the dead body was prepared showing it to be of an unknown person. The dead body was sent for post-mortem to Government Hospital, Balauda Bazar vide requisition Ex.-P/6. The post-mortem examination was conducted by Dr. Ganeshram Agrawal (PW-4). The body was in highly decomposed condition. Dr. Agrawal (PW-4) though noticed a fracture on the right temporal bone, but opined that the cause of death was asphyxia due to drowning. He could not ascertain as to whether the death was homicidal, suicidal or accidental. The post-mortem report is Ex.-P/7. A query was made on 16.8.92 (Ex.-P/8) and in the query also, he emphasized that no definite opinion can be given regarding fracture of skull and mode of death. Since nobody came to claim the dead body, it was buried by the police. Durga Prasad (PW-8 - father of the deceased) any how reached to the police station. He saw the bicycle of the deceased and identified it. He also saw cloths and expressed that the dead body found may be of his son. On this information, the dead body was exhumed in presence of Executive Magistrate, K.P. Pandey (PW-11), on 13.8.92 and was identified to be that of deceased- Ajay Gupta S/o Durga Prasad (PW-8). Thereafter opinion (Ex.-P/20) was sought from Dr. D.C. Jain, HOD, Forensic Medicine & Toxicology, Medical College, Raipur on 30.8.92 who opined that it was a homicidal death. On his such opinion, the F.I.R. (Ex.-P/15) was registered on 27.9.92 and the investigation commenced. During the course of investigation, statements of Sanju @ Sanjay (PW-7), Durga Prasad (PW-8) and Rajesh Kumar (PW-9) were recorded on 10.1.93. They stated that they had lastly seen the deceased in the company of the appellant. Statements of Susheela Gupta (PW-5) and Meera Gupta (PW-13) were also recorded on 10.1.93 who stated that the appellant was suspecting illicit relations between the deceased and his wife. On these circumstances, the police filed charge-sheet against the appellant u/ss 302 & 201 IPC. Following are the circumstances on which the learned Sessions Judge relied and convicted the appellant as above:--

(i) The deceased was lastly seen in the company of the appellant by Sanju @ Sanjay (PW-7), Durga Prasad (PW-8) and Rajesh Kumar (PW-9);

(ii) The appellant had motive to kill the deceased on account suspicion of illicit relations between his wife and the deceased; (iii) The death of the deceased was homicidal; &

(iv) The appellant was absconding since the date of incident.

Mr. Dashrath Gupta, learned Counsel appearing on behalf of the appellant, argued that the above circumstances were not frilly established against the appellant; the circumstances were not of conclusive nature and tendency; the circumstances were capable of being explained; the chain of circumstantial evidence was also not complete; motive was not established; and it was also not proved that the death was homicidal.

On the other hand, Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.

We have heard learned Counsel for the parties at length and have also perused the records of the sessions case.

Circumstance of last seen :

In Dhananjoy Chatterjee alias Dhana Vs. State of West Bengal, , the Supreme Court held "In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof."

In Bodh Raj @ Bodha and Others Vs. State of Jammu and Kashmir, the Supreme Court laid down that there is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ''must'' or ''should'' and not ''may'' be established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

About the last seen theory, the Supreme Court held that the last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of a guilt in those cases.

Sanju @ Sanjay (PW-7) deposed that on 8.8.92 at about 9.00 p.m., he was returning along with Rajesh Kumar (PW-9) from village Pangaon. They saw that the appellant and the deceased were coming together on a bicycle. The deceased was driving the bicycle. The appellant was sitting behind him. In cross-examination, he admitted that he was not knowing the appellant. Even he was not knowing his name. He could only identify the deceased. When he asked Rajesh Kumar (PW-9) he told that the appellant was his Jija. In fact, he came to know at the time of Rakhi that the person who was sitting behind on the bicycle was the appellant.

Rajesh Kumar (PW-9) deposed that on the date of incident at about 8.00 p.m. he was returning from village Pangaon. Sanjay (PW-7) was also with him. He saw that deceased- Ajay Gupta was coming on a bicycle and another person was sitting behind him on the bicycle. They met them near Khorsi Nala which is situated in outer area of Balauda Bazar. Ajay (deceased) was going towards Pangaon. He deposed in clear words in his examination-in-chief that he could not identify the person who was sitting behind on the bicycle, however, in deem light, he appeared like Harishchandra, Jija of Ajay (deceased). In cross-examination, he clearly admitted that he could not see clearly as to who was sitting behind the deceased on his bicycle.

Durga Prasad (PW-8) is father of the deceased. He had a shop. He deposed that on the fateful night the appellant was sitting in his shop. They were relatives. Durga Prasad (PW-8) asked the appellant as to where is the deceased (Ajay), on which the appellant replied that he had gone to the barber''s shop. Thereafter the deceased came, and the appellant & the deceased left his shop, and then the deceased did not return. In cross-examination, Para-4, he admitted that he had seen the appellant and the deceased at about 7-7.30 p.m.

In appreciation of the evidence of above witnesses of last seen, we find that the evidence of Durga Prasad (PW-8) would not be of much importance because after seeing the deceased in the company of the appellant by this witness, the deceased was later on seen by Sanju @ Sanjay (PW-7) and Rajesh Kumar (PW-9) in the night. Therefore, in fact, Sanju and Rajesh were witnesses of last seen. On appreciation of evidence of Sanju (PW-7) and Rajesh Kumar (PW-9), we find that though they could identify the deceased on his bicycle, but they could not identify as to who was accompanying the deceased. Therefore, it was not proved beyond all reasonable doubt that it was the appellant who was accompanying the deceased on his bicycle, and thus, the circumstance of last seen was not established beyond all reasonable doubts.

We note that the deceased was missing since 9.00 p.m. of 8.8.92 and his body was found at 10.00 a.m. on 10.8.92. Therefore, there was long time gap between the point of time when the appellant and the deceased were allegedly seen last alive and when the deceased was found dead. Thus in such situation, on the above principles laid down by the Supreme Court, it would be difficult to positively hold that the deceased was last seen with the appellant, as, a possibility of other persons coming in between this period exists. We are of the view that in absence of any other positive evidence to conclude that the appellant and the deceased were last seen together, it would be hazardous to come to a conclusion of a guilt of the appellant on the above circumstance of last seen.

We also note that 161 Cr.P.C. statements of Sanju @ Sanjay (PW-7), Durga Prasad (PW-8) and Rajesh Kumar (PW-9) were recorded on 10.1.93 and 19.1.93, whereas, the dead body was found on 10.8.92. In between this period they frequently met with the police. Why they did not make early disclosure has not been explained. This also creates doubt on their testimonies regarding their evidence of last seen.

Motive of the crime :

According to the prosecution, the appellant was suspecting illicit relations between the deceased and his wife and this was the motive for commission of offence. The 2 witnesses namely- Susheela Gupta (PW-5) and Meera Gupta (PW-13) have been examined in this regard.

Susheela Gupta (PW-5) is sister of Durga Prasad (PW-8). Thus she is aunt (bua) of the deceased. Harishchandra (appellant) was husband of Renu. Renu was daughter of Kashi Prasad, cousin brother of Durga Prasad (PW-8). Susheela Gupta (PW-5) deposed in Para-2 that on the day of Nagpanchmi, the appellant came to her and told that he is in tension. He had also told about illicit relations between Renu, his wife, and the deceased. After 3-4 days of the said day, the deceased was missing.

Meera Gupta (PW-13) deposed that on the day of Nagpanchmi, the appellant came to her house and said that he has a shocking news, which he cannot disclose to anyone. If he discloses, a big disturbance may come. At that time, Susheela (PW-5) was also present with her. Meera Gupta (PW-13) deposed in clear words that the appellant did not disclose anything about relations between the deceased and his wife. Meera Gupta (PW-13) was declared hostile and was cross-examined by Public Prosecutor, but, nothing material could be elicited in her cross-examination. We note that 161 Cr.P.C. statements of these witnesses were recorded on 10.1.93 i.e. after a very long period of the incident which took place on 10.8.92. Why they did not disclose all this on earlier occasions is not clear. Even, they also did not depose about delay in disclosure of the above event. According to Meera Gupta (PW-13), the appellant disclosed about all this in presence of Susheela Gupta (PW-5). On appreciation of evidence of Susheela Gupta (PW-5) and Meera Gupta (PW-13), we find that it was not safe to rely on their testimonies on account of such belated disclosure. Significance of relevancy of motive primarily depends upon the facts and circumstances of a case. The motive has to be proved like any other circumstance and then its sufficiency has to be examined in light of the facts and circumstances of a given case. In the instant case, the evidence of motive itself is suspicious. We, therefore, hold that the above motive as suggested by the prosecution was not proved against the appellant.

Circumstance of homicidal death :

The dead body of the deceased was found in drowned condition in Khorsi Nala. It was seen by village Kotwar. The body was taken out and was sent for post-mortem examination. The Autopsy Surgeon though found fracture of skull bone, but did not opine that it was a homicidal death. According to him, the cause of death was asphyxia on account drowning. In cross-examination, he admitted that if a person falls in the water from some height, the injury like above could be sustained. A query was made by the Investigation Officer regarding cause of death and cause of fracture, but no definite opinion was given in the query. Thus it was not proved by the Autopsy Surgeon that the death was homicidal, suicidal or accidental. When a case of murder was registered, expert opinion was sought from the HOD, Forensic Medicine & Toxicology, Medical College, Raipur. Dr. D.C. Jain holding the above post, gave his opinion (Ex.-P/20) that it may be a case that the deceased was firstly attacked over head and when he became unconscious, he was thrown in the Nala. Therefore the death was homicidal. We note that Dr. D.C. Jain, the said expert, was not examined by the prosecution. His above opinion was marked exhibit on the evidence of Dr. P.K. Mukherjee (PW-16), Dean, Medical College, Raipur. He only proved signature of Dr. Jain over the above report. Incidentally, in cross-examination his opinion was also sought, on which, he replied that he cannot give any opinion as to whether the above injury may be caused on account of fall or by assault. In fact, he denied to comment upon the report of Dr. Jain. In light of the above evidence available on record the finding that the death was homicidal appears to be shaky.

Circumstance of abscondance :

In Thimma and Thimma Raju Vs. State of Mysore, , it was held that the conduct of accused in absconding immediately after the occurrence of the offence is relevant evidence, as indicating to some extent his guilty mind, it is not conclusive of that fact because even innocent person when suspected may be tempted to such conduct to avoid arrest.

In Sk. Yusuf Vs. State of West Bengal, , it was held that "It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely being suspected, out of fear of police arrest and harassment. (Vide: Matru alias Girish Chandra Vs. The State of Uttar Pradesh, ; Paramjeet Singh @ Pamma Vs. State of Uttarakhand, and Rabindra Kumar Pal @ Dara Singh Vs. Republic of India,

The facts are different in the instant case. In case on hand, the appellant returned to the house at about 11.00 p.m. and was present in the house and later on he went to some other place for some long time. Therefore, it is not a case of immediate abscondance just after the incident. Moreover, this solitary circumstance, in light of the above judgment of the Supreme Court, cannot be held sufficient to hold the appellant guilty of offence like murder.

For the foregoing reasons, we are unable to sustain the conviction of the appellant on the above set of circumstantial evidence. The circumstances were not fully established, they were not of conclusive nature and tendency, and were capable of being explained and the chain of circumstantial evidence was also not complete. In the result, the appeal is allowed. The conviction and sentences awarded to the appellant u/s 302 IPC are set-aside. He is acquitted of the charges framed against him. It is stated that the appellant is on bail. His bail bonds are cancelled and sureties stand discharged.