Iqbal vs State of M.P.

This appeal has been filed by the appellant,

being aggrieved by the judgment dated 12.09.2005,

passed by Additional Sessions Judge, Sohagpur,

District Hoshangabad in S.T. No. 280/2002, whereby

appellant has been found guilty for the offence

punishable under Section 302 of the Indian Penal Code

and has been sentenced to life imprisonment and fine

of Rs.200/- and in default of has to suffer rigorous

imprisonment for one month.

The brief facts leading to the present

criminal appeal may be summarized as follows : On

31.01.2000 at around 10.30 A.M., P.W.-1 Ramji

Vishwakarma lodged a report (Ex.P-1) at Police Station

Sandia Piperiya to the effect that at 9.00 A.M., in the

morning, his brother-in-law, Lallu @ Laxminarayan,

forcibly tried to take away his 1 1/2 year old daughter

Rani from the lap of her grandmother Baribai, and on

being resisted, the accused/appellant stabbed the

deceased Baribai in stomach and side of the chest with

knife. P.W.-7 Shankerlal, husband of the deceased,

when tried to intervene, was also attacked by the

appellant and sustained injuries on his nose. According

to prosecution, the incident was witnessed by Shivpal

Rajput, Ramsingh Rajput and wife of Ramcharan

Chamar. Baribai was taken to the hospital, where she

was declared dead.

On the basis of Ex. P-1, FIR (Ex.P-21) was

recorded and the criminal law was set into motion.

Statement of the witnesses were recorded and the

spot map and panchnama were prepared. The body of

the deceased was sent for post mortem.

P.W.-8 Dr. A.K. Agrawal, who conducted the

post mortem has opined that the death occurred due

to shock and haemorrhage on account of injury to the

vital organ (heart) of the body.

The trial Court after considering the

evidence on record, convicted the appellant as

aforementioned, placing reliance on the evidence of

P.W.-1 Ramji Vishwakarma, P.W.-7 Shankerlal and P.W.-

9 Durgabai.

Smt. Durgesh Gupta, learned counsel

appearing for the appellant has submitted that the

appellant has been falsely implicated. It is a case of

circumstantial evidence and no one has actually seen

the incident. It is stated that there is material

discrepancies in the evidence of P.W.-1 Ramji

Vishwakarma, P.W.-7 Shankerlal and P.W.-9 Durgabai,

who are all interested witnesses. The independent

witnesses have not supported the prosecution case.

There is no recovery and nothing to connect the

appellant with the commission of the crime and under

such circumstances, the inference of guilt drawn by

the trial Court was clearly perverse.

Per contra, Shri Anubhav Jain, learned Govt.

Advocate appearing for the State has vehemently

opposed the submission made by learned counsel for

the appellant, contending that the appellant has a

premeditated intention to commit the offence and that

is why he came armed with a knife. It is contended

that the appeal lacks merit and is liable to be

dismissed.

We have heard the learned counsel for the

parties at length and perused the record.

It is clear from the material placed before us

that P.W.-1 Ramji Vishwakarma, P.W.-9 Durgabai and

P.W.-7 Shankerlal, all claimed to be eye witnesses.

However, the story put up by all of them is different

and does not corroborate in material particulars.

P.W.-1 Ramji in his deposition has stated

that the incident happened inside the house in

presence of P.W.-7 Shankerlal and P.W.-9 Durgabai.

According to him, P.W.-9 Durgabai was living with them

since last one year. Appellant asked Baribai to send

Durgabai with him which was refused by Baribai. On

being refused, appellant took out a knife from his

pocket and stabbed Baribai in the stomach, contrary to

his case diary statement, where he had stated that

appellant tried to snatch his daughter from the lap of

Baribai and on being resisted, appellant stabbed

Baribai. He has further stated that when he and P.W.-

7 Shankerlal tried to save deceased Baribai, appellant

stabbed him in the stomach and inflicted injuries on

the nose of P.W.-7 Shankerlal. Though in his cross-

examination, P.W.-1 Ramji has admitted that he was

inside the room and came out only after hearing his

mother''s cries. He has stated that he did not see the

appellant stabbing his mother as the whole incident

happened within 2-3 minutes. He has further admitted

that his father P.W.-7 Shankerlal has told him about the

incident.

P.W.-1 Ramji has further improvised and

stated that P.W.-4 Shivpal and P.W.-2 Ram Singh also

tried to save deceased Baribai. However, P.W.-4

Shivpal and P.W.-2 Ram Singh, both have not supported

the prosecution story and has been declared hostile.

P.W.-2 and P.W.-4 have stated that they have not seen

the incident nor seen the appellant at the place of

occurrence and has only heard Ramji shouting that

appellant after murdering Baribai had run away.

P.W.7 Shankarlal, on the other hand, has

stated that at 9 A.M. in the morning, he was sitting

infront of his house, enjoying the bonfire, when

deceased Baribai and P.W.-9 Durgabai came with roti.

According to him, Baribai was holding Rani alongwith a

basket, when appellant Lallu suddenly came and tried

to snatch his daughter from Baribai, which was

resisted by her. According to Shankerlal (P.W.-7),

appellant took the basket from Baribai and threw it on

the ground and stabbed Baribai in the stomach and

chest. Thereafter, he inflicted an injury on the nose of

Shankarlal and ran away. He has not stated anything

about the presence of P.W.-1 Ramji, on the spot. P.W.-7

Shanakerlal has stated that his daughter came to live

with him since last 15 days only and has denied the

suggestion that she was living with him since last

seven months to one year. He has further stated that

appellant loved his wife and daughter. According to

Shankerlal (P.W.-7), appellant did not ask him to send

P.W.-9 Durgabai with him. Shankerlal (P.W.-7) has

further stated that he was not aware of the fact that

Baribai had refused to send Durgabai with the

appellant. As per P.W.-7 Shankerlal, there was no

conversation between the appellant and Baribai. The

appellant came suddenly and stabbed Baribai and ran

away before Shankerlal could understand anything.

P.W.-9 Durgabai, daughter of the deceased

and wife of the appellant, on the other hand has stated

that on 31.01.2000, at 9.00 A.M., she and her mother

were going to Patel''s house for bringing ''Bhusa''. At

that time, she was holding her daughter Rani in her

lap. According to her, appellant came and tried to

take his daughter from her, then deceased Baribai took

Rani in her lap. As per P.W.-9 Durgabai, the appellant

tried to take Rani from Baribai, who resisted, on which

the appellant took out a knife and stabbed her. She

has stated that at the time of incident, only she and

her mother Baribai were there. Her father P.W.-7

Shankerlal and brother P.W.-1 Ramji came later, after

the appellant had run away. According to P.W.- 9

Durgabai, the incident took place behind their house

and no one has seen the incident.

From the aforesaid, it is clear that the

evidence of alleged eye witnesses in conflict and

contradiction with each other in regard to the place

and in the manner the incident occurred. It is evident

that three of them has stated a different place of

occurrence and denied each other presence, which

creates a serious doubt about the truthfulness of these

witnesses.

In the case of Mahendra Pratap Singh

Vs. State of Uttar Pradesh (2009) 11 SCC 334

the Supreme Court has held :

"The discrepancies in the evidence of eye witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case, it cannot be held that the prosecution proved its case beyond reasonable doubt.

In the case of State of Rajasthan Vs.

Rajendra Singh (2009) 11 SCC 106, the Supreme

Court has held :

"Where the omission (s) amount to a

contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the Court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence."

The other witnesses, P.W.-2 Ramsingh, P.W.-

4 Shivpal Singh and P.W.-11 Battibai, who according to

the prosecution were present at the time of incident

have all been declared hostile. P.W.-2 Ramsingh and

P.W.-4 Shivpal Singh have denied their presence at the

place of incident and had stated that they were later

on informed by Ramji. Similarly P.W.-11 Battibai had

stated that she was in Piperiya at the time of incident

and was only told about the incident after 2-3 days,

when she came back to the village.

The learned counsel for the appellant has

questioned the recovery of clothes and the arrest of

the accused/appellant. According to P.W.-15 A.K.

Dandhiriya, (I.O.), the pant, shirt and sweater which

were allegedly worn by the appellant at the time of

incident were recovered vide Ex. P-8, on the same day,

i.e., on 31.1.2000 from the field of Ghanshyam in

presence of P.W.-3 Jai Mohan and Ghanshyam. The

appellant was arrested after two years of the incident

on 06.04.2002, from his house at village Shahganj,

district Sehore. It is thus clear that the recovery was

not made pursuant to arrest and disclosure made by

the appellant, hence no importance can be attached to

it. Apart from this fact, the witnesses of the seizure

have all turned hostile and denied the recovery.

According to P.W.-2 Ram Singh and P.W.-4 Shivpal

Singh, the clothes picked up by the police earlier were

not shown to them and they were made to sign

afterwards on the seizure memo. The alleged weapon

of the crime was not recovered and in absence of the

FSL report, there is nothing on record to establish the

presence of appellant on the place of the incident or to

link the appellant with the commission of the crime.

The fact which weighed heavily with the

trial Court was that P.W.-1 Ramji and P.W.-7 Shankerlal

had allegedly received injuries in the said incident.

However, as per P.W.-8 Dr. A.K. Agrawal, the same

were simple in nature and could have a result of the

fall. Apart from that, in view of the statement of P.W.-

7 Shankerlal that appellant loved his wife and

daughter. There was no reason or motive for the

appellant to kill Baribai, as it was not the case of

prosecution that there was some previous enmity.

It is settled law that suspicion, however,

strong, cannot form the basis of conviction and a

charge can be said to be proved only when there is

certain explicit evidence to warrant legal conviction.

In the case of Raj Kumar Singh Alias

Raju Alias Batya Vs. State of Rajasthan (2013) 5

SCC 722, the Supreme Court has held :

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. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; Shivaji Sahabrao Bobade & Anr. v. State of Mahrashtra, AIR 1973 SC 2622; Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; Subhash Chand v. State of Rajasthan, (2002) 1 SCC 702; Ashish Batham v. State of M.P ., AIR 2002 SC 3206; Narendra Singh & Anr. v. State of M.P ., AIR 2004 SC 3249; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P ., AIR 2012 SC 1979)

In Kehar Singh Vs. State (Delhi

Administration) (1988) 3 SCC 69, the Supreme

Court has held that if the discrepancies are material, it

would be safer to err in acquitting than in convicting

the accused.

In the instant case, there have been major

contradictions/infirmities in the deposition of P.W.-1

Ramji, P.W.-7 Shankerlal and P.W.-9 Durgabai, which

cannot be ignored when they are examined in its

entirety. The evidence produced by the prosecution

appears to be very shaky and the chain of links

connecting the appellant with the crime appears to be

inconclusive.

In view of the above, it is clear that the

prosecution has failed to prove the case against the

appellant beyond reasonable doubt. Thus, the appeal

succeeds and is hereby allowed. The conviction and

sentence imposed on the appellant is set aside. The

appellant is directed to be released forthwith, unless

wanted in some other case.