Kalasram vs State of C.G.

Sunil Kumar Sinha, J.—These appeals are directed against the judgment dated 5th of February, 2007 passed in Sessions Trial No. 192/2006 by the Second Additional Sessions Judge, Baloda Bazar. By the impugned judgment, the appellants have been convicted in following manner:-

The facts, briefly stated, are as under:--

Kalasram (A-2) is father-in-law of deceased-Reena Bai. Mani Ram (A-1) and Badara Bai (A-3) wife of Mani Ram are Jeth & Jethani of the deceased. The deceased was married to Komal Prasad S/o Mani Ram. Komal was working in Special Armed Force (S.A.F.) and was taking training in Sakri Battalion, District Bilaspur. Thus he was residing in Sakri. The accused persons were residing in village Kodwa, District Raipur. Deceased-Reena Bai had a daughter, aged about 2 1/2 years. On 4.1.2004 at about 6.00 p.m., Kalasram (A-2) lodged merg intimation (Ex.-P/12) that "at about 2.00 p.m. he had gone to the house of Shriram to attend Bhoj of Daskarm. His grand daughter had also gone with him. Deceased-Reena Bai and his mother-Rammati remained in his house. When he returned back at about 3.00 p.m., he found that the deceased was lying dead in the house having sustained burn injuries". The Investigation Officer informed the Executive Magistrate. They reached to the place of occurrence, gave notice (Ex.-P/1) to the Panchas and prepared inquest (Ex.-P/2) on the dead body of the deceased. Site plan (Ex.-P/14) was prepared by the Investigation Officer. The dead body was sent for postmortem to Community Health Center (CHC), Kasdol. The post-mortem examination was conducted by Dr. Ramsewak Joshi (PW-11). He found 92% postmortem burn injuries of first & second degree on the dead body of the deceased. The nails were blue and tongue was almost protruded. There were exposed muscular burns on upper 1/3rd portion of right thigh. There were burns on femur bone. The exposed area was 101/2 cm x 5 cm obliquely placed. On internal examination, he found that the tissues beneath the skin over the neck were congested. The Autopsy Surgeon opined that the cause of death was asphyxia on account of throttling and it was homicidal in nature. The post-mortem report is Ex.-P/12. (P/12 has been marked over 2 documents merg and P.M. report). After receiving post-mortem report, First Information Report (F.I.R.- Ex.-P/13) against unknown person was registered on 16.1.2006. In further investigation, Mani Ram (A-1) was taken into custody and his memorandum statement (Ex.-P/7) u/s 27 of the Evidence Act was recorded on 31.1.2006 and a tangi was seized at his instance vide seizure memo Ex.-P/8. Site plan (Ex.-P/12-A) was prepared by Patwari-Ramniwas Shriwas (PW-14). The seized articles were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Raipur vide memo Ex.-P/16 and F.S.L. report (Article ''A'') dated 17.8.2006 was received. According to the said report, blood stains were not found on the tangi which was seized from the possession of Mani Ram (A-1) vide his disclosure statement. The prosecution came with the case that the deceased had illicit relations with a local boy namely Gopeshwar Banjare (PW-15), therefore, she was murdered in the house in planned manner by the accused persons by throttling her and by using tangi, and then, her dead body was put to fire for causing disappearance of evidence of murder. The learned Sessions Judge held that the appellants were responsible to cause death of the deceased and they also tried to disappear the evidence of commission of murder of the deceased, therefore, they were liable for punishment u/ss 302 /34 & 201 IPC.

Mr. J.R. Verma, learned counsel appearing on behalf of the appellants, has argued that there was no eye-witness to the incident; the two appellants namely-Mani Ram (A-1) and Badara Bai (A-3) were residing separately and they had no connection with the family of Kalasram (A-2); Kalasram (A-2) was not present in the house at the time of the incident; he himself reported the matter to the police giving all details; it was a day time incident, therefore, Kalasram (A-2) cannot be held responsible even for explanation as to how the deceased died homicidal death; the only connecting evidence of seizure of tangi against Mani Ram (A-1) was of no use as blood stains were not found on it, therefore, conviction vitiates and the same cannot be sustained.

On the other hand Mr. N.K. Mehta, 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.

Admittedly, there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. 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 Apex 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.

The main circumstances on which the Sessions Judge appears to have relied are, the deceased died homicidal death; she has sustained cut injury over her thigh; the dead body of the deceased was found in the house of the appellants; a tangi was seized at the instance of appellant-Mani Ram (A-1) on his disclosure statement; and the appellants (A-1 to A-3) did not explain as to how the deceased died homicidal death in their house.

Firstly we shall examine the case of Mani Ram (A-1) and Badara Bai (A-3).

The first question is as to who were the inmates of the house where the dead body of the deceased was found. Mr. Verma has argued that there is absolutely no evidence to show that Mani Ram (A-1) and Badara Bai (A-3) were residing with the deceased. On the contrary, there is ample evidence to show that partition had taken place long back in the family and after the partition, Mani Ram (A-1) and Badara Bai (A-3) were residing separately in a different house. He has referred to the evidence of various witnesses in this regard.

Ramdayal (PW-1) is father of the deceased. He deposed in Para-11 of his evidence that Komal, his daughter and wife (deceased) all the 3 were residing together in the old house.

Aangan Devi (PW-2) is mother of the deceased. She also admitted in Para-11 of her evidence that her son-in-law was having two houses in village Kodwa. Deceased-Reena, her daughter and Komal were residing separately in old house. She admitted in clear words that 2-2 1/2 years prior to the incident a partition had already taken place between Komal, his father (Kalasram) and brother (Mani Ram). She categorically admitted that Komal and her daughter (deceased) were residing separately.

Sidhi Ram (PW-5) is resident of the same village. He also deposed in Para-8 of his evidence that Reena Bai (deceased), her child and Komal were residing separately from the other members of their family. He further admitted that a partition had already taken place between Komal, his father (A-2) and brother (A-1). He categorically admitted that Reena (deceased) and Komal were separately cultivating the lands of their share. As Komal had joined police force, Reena (deceased) used to cultivate the land by engaging labours.

Tarachand (PW-8) is neighbour of the deceased. He also admitted in Para-7 of his evidence that Mani Ram (A-1) and Badara (A-3) were residing separately in a different house and Reena Bai (deceased) was residing separately from them.

In appreciation of evidence of these witnesses, we find that according to the villagers, and even according to the parents of the deceased, Mani Ram (A-1) and Badara Bai (A-3), after taking partition in the family property 2-2 1/2 years back, were residing separately in a different house than the house where the dead body of the deceased was found. Besides the above, the map (Ex.-P/12-A) also shows that the house where the deceased was found dead was belonging to Kalasram (A-2). When Mani Ram (A-1) and Badara Bai (A-3) were not inmates of the house, there was no burden on them to explain as to how the deceased died homicidal death in her own house as the facts relating to the homicidal death of the deceased may not be in their special knowledge and in view of Section 106 of the Evidence Act there will be no corresponding burden on them to explain all this.

The prosecution has tried to implicate Mani Ram (A-1) on the ground that a tangi was seized on his disclosure statement (Ex.-P/7) vide seizure memo Ex.-P/8, We note that the tangi was sent for chemical examination to Forensic Science Laboratory (F.S.L.), Raipur, but blood stains were not found on tangi. Tangi is a common article which is mostly kept by the villager. In absence of blood stains over the tangi it cannot be held incriminating against Mani Ram (A-1). In merg intimation (Ex.-P/12), Kalasram (A-2) had also mentioned that Mani Ram (A-1) was his elder son and he was residing separately along with his family members since last two years. In view of the above discussion, we do not find any incriminating evidence against Mani Ram (A-1) and Badara Bai (A-3) so as to make them liable for commission of murder of the deceased which was committed in the house where the deceased was separately residing.

Now we shall consider the case of Kalasram (A-2).

Kalasram (A-2) was aged about 80 years on the date of incident. He was the first man to see the dead body. He immediately lodged merg intimation (Ex.-P/12). According to the merg intimation, he had gone to the house of Shriram to attend the Bhoj of Dashkarm. He had taken his granddaughter (Rani d/o. deceased-Reena) with him. When he returned at about 3.00 p.m., he saw that his daughter-in-law (deceased) was lying dead in burnt condition. Mr. Mehta has argued that Kalasram (A-2) had to explain as to how the deceased died homicidal death in his house.

In Nesar Ahmed and Another Vs. State of Bihar, , the deceased died of burn injuries in the house of the appellants. The Supreme Court, while considering the matter, held that in such a case it is absolutely essential to first consider whether the prosecution has led any unimpeachable evidence to show that the appellants were present in the house where the deceased died as a result of burn injuries at the crucial time. If it is found that the presence of the appellants at the crucial time has not been established in the house, all other circumstances would not complete the chain of circumstantial evidence to lead to any irresistible conclusion consistent only with the hypothesis of guilt of the appellants and inconsistent with their innocence.

It was not a night time murder in which, in absence of any evidence to the contrary, there would be reason to presume the presence of the inmates of the house. It was a day time murder, therefore, the prosecution had to establish the presence of the accused in the house at the crucial time. We note that Kalasram (A-2) had taken the plea in merg intimation that he had gone to the house of Shriram. We further note that there is no evidence to show that Kalasram (A-2) was present in the house at the time of the incident. Kalasram (A-2) had mentioned in the merg that his mother Rammati was present in the house along with the daughter-in-law (deceased). Rammati has not been examined by the prosecution. In appreciation of entire evidence available on record, we find that there was no positive evidence to hold that Kalasram (A-2) was present in the house at the crucial time. Therefore, even if it was established that the deceased died homicidal death in her house where appellant-Kalasram (A-2) was also residing, in absence of establishing that Kalasram (A-2) was present in the house at the relevant time, all other circumstances would not complete the chain of circumstantial evidence to lead to any irresistible conclusion consistent only with the hypothesis of guilt of appellant-Kalasram (A-2). We are of the view that in the above facts and circumstances of the case, Kalasram (A-2) would be entitled to benefit of doubt.

Now we shall consider the ''motive'' set-forth by the prosecution.

According to the prosecution, the deceased was having illicit relations with Gopeshwar Banjare (PW-15) and the family members of the deceased were unhappy for all this. Therefore, they had ''motive'' to commit murder of the deceased. Gopeshwar Banjare has been examined by the prosecution as PW-15. He denied about all above allegations and did not depose anything like that. He was declared hostile and was cross-examined by the Public Prosecutor. Even in cross-examination, he denied the suggestion given to him about such relations with the deceased. There is absolutely no other evidence to prove the above facts and as such ''motive'' of the appellants to commit murder of the deceased. The husband of the deceased was not examined who might have some knowledge about his family affairs.

In Dharnidhar Vs. State of U.P. and Others, the Supreme Court, deliberating on direct and circumstantial evidence; held in Para-19 as under:--

However, in cases which are entirely or mainly based upon and rest on circumstantial evidence, motive can have greater relevancy or significance Babu Lodhi and Others Vs. State of U.P., and Prem Kumar and Another Vs. State of Bihar, . But it is equally true that when positive evidence against the accused is clear in relation to the offence, motive is not of much importance. Mere absence of motive, even if assumed, will not per se entitle the accused to acquittal, if otherwise, the commission of the crime is proved by cogent and reliable evidence {State of Punjab Vs. Kuljit Singh, (2003) 2 RCR (Cri) 629 (P&H)}.

Therefore significance of relevancy of motive would primarily depend upon the facts and circumstances of a given case. The instant case was mainly based on circumstantial evidence, therefore, the motive would assume important. The prosecution has utterly failed to prove the ''motive'' by cogent and reliable evidence.

For the foregoing reasons, we are unable to sustain the conviction of the appellants on the above set of circumstantial evidence. The circumstances were not fully established against the appellants. The circumstances were not of conclusive nature and tendency. The circumstances were capable of being explained and the chain of circumstantial evidence was also not complete. In the result, the appeals are allowed. The conviction and sentences awarded to the appellants u/ss 302 /34 & 201 IPC are set-aside. The appellants are acquitted of the charges framed against them. Appellant-Kalasram (A-2) is on bail. His bail bonds are cancelled and surety stands discharged. Appellants-Mani Ram (A-1) and Badara Bai (A-3) are continuously in jail since 31.1.2006. They be released forthwith if not required in any other case.