Jagdish Kushwah vs State of M.P.

The appellant is aggrieved by his conviction u/s. 302 IPC handed down by the Sessions Judge Balaghat in Session Trial No.130/2004. By the impugned judgment, trial Judge found the appellant guilty of offence punishable under Section 302 IPC with fine of Rs. 5,000/-and sentenced him with RI for life with default stipulation.

It is not disputed that Sarita Bai (since deceased) was the wife of appellant and she died a homicidal death in her residence at village Birwa on the 22.5.2004.

The prosecution case, in a nut shell, is as under. In the night intervening 21.5.2004

and 22.5.2004 after taking evening meals, appellant, his wife Sarita Bai and her mother- in-law Janki Bai went to sleep. Around 5 in the morning hearing outburst of appellant, Janki Bai woke up and asked the appellant what was the matter. She also noticed that appellant was armed with an axe covered with blood. In response the appellant told her to go inside and look for herself. Jankibai went inside and saw the dead body of Sarita Bai lying in a pool of blood and blood splattered over the wall of the room. Janki Bai then rushed to the residence of son-in-law Dhamman Singh who accompanied her to site of incident and then went and lodged Marg intimation and the FIR at P.S. Baihar. This set the investigation rolling. After taking usual steps like inquest, post-mortem, police filed charge sheet against appellant. At trial appellant abjured guilt and set up plea of alibi, therefore he was put to trial.

Trial Court on due consideration of evidence on record, found that prosecution proved the case against the appellant therefore, convicted and sentenced him as aforesaid.

Deceased Sarita Bai died a homicidal death is not disputed before us. Even otherwise, this fact is amply proved by Dr. N.S. Kumhare (PW9). In post-mortem examination (Ex.P.15) Doctor Kumhare found two parallel incised wounds, ante-mortem wounds and the cause of death was syncope due to excessive bleeding arising from external injury on the neck and the death was within 24 hours of the post-mortem examination.

There is no direct evidence to connect the appellant with the crime. Prosecution case is based on circumstantial evidence.

It is well settled that when dealing with the serious question of guilt of person charged with murder, there must be clear and unequivocal proof of the corpus delict and the

hypothesis of delinquency should be consistent with all the facts proved. It is also well settled that when a case rests on circumstantial evidence, such evidence must satisfy three tests- (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances taken cumulatively, should form a complete chain so that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. In a case of circumstantial evidence the prosecution is bound to establish the circumstances from which the conclusion is drawn must be fully proved; the circumstances should be conclusive in nature; all the circumstances so established should be consistent only with the hypothesis of guilt and inconsistent with the innocence; and lastly the circumstances should to a great certainty exclude the possibility of guilt of any person other than the accused. The law relating to circumstantial evidence is no longer res integra and it has been held by a catena of decisions of Supreme Court that the circumstances proved should lead to no other inference except that of the guilt of the accused, so that, the accused can be convicted of the offences charged with. It may be stated as a rule of caution that before the court records conviction on the basis of circumstantial evidence, it must satisfy that the circumstances from which inference of guilt could be drawn have been established by unimpeachable evidence and the circumstances unerringly point to the guilt of the accused and further all the circumstances taken together are incapable of any explanation on any reasonable hypothesis save the guilt of the accused.

It is equally well settled that where the entire prosecution case hinges on circumstantial evidence, the Court should adopt a cautious approach for basing the conviction on circumstantial evidence and unless the prosecution evidence points irresistibly to the guilt of the accused, it would not be sound and safe to base the conviction of an accused person. Keeping this settled position in mind, we have examined the prosecution evidence adduced in the case in hand.

The trial Judge found three circumstances against the appellant to hold him guilty- (i) presence of the appellant in the village on the date of incident; Recovery of blood stained axe at the instance of appellant; Evidence of Kamla Bai (PW3) to the effect that around 5 am, she saw the accused with blood stained axe searching for Kishore-son of the witness to make a small thing of him (kishore)

After having considered the rival submissions in the light of evidence available on record, we are of the considered view that the circumstances from which inference of guilt of the appellant could be drawn have not been established by impeachable evidence and the circumstances unerringly do not point to the guilt of the accused and further all the circumstances taken together are not incapable of any reasonable explanation.

Prosecution could not prove any motive for the crime. In case of a indirect evidence, motive play a important part to lend support to prosecution story. The evidence of Kamlabai(PW3) is open to serious doubts. She kept silent for whole day i.e. on 22.5.2004 and did not disclose to anyone about the so called unusual behaviour of the appellant in the morning. Her case dairy statement was recorded next day. It seems I.O. waited the whole day to give whatever shape he wanted to give to the prosecution story. As regards the presence of the appellant, that by itself is not a incriminating circumstance. His mother Janki Bai(PW5) has not supported the prosecution case. The last incriminating circumstance taken into consideration is recovery of blood stained axe at the instance of the appellant. In the Chemical Examination no human blood was found on the axe See Ex.P-18.

We find that trial Court has given undue importance to above facts to hold the appellant guilty. As has been discussed above, we find that the prosecution has not been able to prove the offence against appellant or at any rate, the appellant is entitled to benefit of doubt and, therefore, conviction of appellant is unsustainable.

In view of the foregoing discussion, the appeal is allowed and the impugned judgment is hereby set aside. The appellant is in jail. He, therefore, be set at liberty forthwith if not required in any other cause. The fine amount if paid by him, be refunded to him.

Ordered accordingly.