Keshav and Others vs State of M.P.

Challenge in this appeal u/s 374 of the Code of Criminal Procedure is made to a judgment dated 16.07.1999 passed by the Additional Sessions Judge, Sabalgarh, district Morena in Sessions Trial No. 44/1995 by which the appellants have been convicted for the offences u/s 302 and Section 201 I.P.C. and sentenced to undergo life imprisonment and seven years'' imprisonment respectively both to run concurrently. It was the case of the prosecution, as is made out from the material available on record that on 15th August, 1994, one Kedar Singh, brother of Ram Singh made a report in Police Station Kailaras to the effect that his brother Ram Singh is working as a labourer in Kailaras, he had gone to work in the morning of 13th August and has not returned home till making of the report. It was further stated that on the previous date i.e. 14th August, 1994, there was a meeting of the Panchayat with regard to Ram Singh and in this meeting of the Panchayat, the accused persons have stated that on 13th August, 1994, in the morning, about 13 labourers had gone from the village to Kailaras, Ram Singh also went with these persons. In the evening all of them returned back to the village but Ram Singh had not returned, it was said by the accused persons that Ram Singh had consumed liquor and on the way back to village, Pachekha, they had to cross a river. It is said that when they reached a place near the river, some arguments took place and it is said that some of the accused slapped Ram Singh, left him there and came away. Based on the aforesaid facts as was narrated by Kedar Singh, the crime was registered and, thereafter, investigation held. Based on the investigation, certain seizures were also made on the basis of the statement of the accused persons recorded u/s 27 of the Evidence Act. The case was put to trial and appellants have been convicted as indicated herein above.

Shri R.K. Sharma, learned counsel for the appellants took us through the evidence and statement of witnesses available on record and pointed out that three circumstances were made out by the prosecution against the appellants, to hold them guilty of the offence. The First was seizure of certain blood stained cloths and knives from the accused persons based on their statements recorded u/s 27 of the Evidence Act. The second was the confession statement made by the accused persons in the Panchayat on 14th August, 1994 with regard to slapping of Ram Singh and the third is the evidence with regard to the accused being last seen along with deceased Ram Singh before his body was recovered.

Shri Sharma learned counsel took us through the findings recorded by the learned trial Court and pointed out that the circumstances with regard to seizure of the cloth and knife at the instance of accused has been disbelieved by the trial Court because witness to this seizure PW-13 Ganshyam had turned hostile and the seizure memos were not proved as required under law. He took us to the memorandum available on record viz. Exhibits P-11, P-12, P-13, P-14 and P-15. Seizure memos of the knives viz. Exhibits P-16, P-17, P-18, P-19 and P-20 and pointed out that these seizures have not been properly proved and, therefore, the trial Court has disbelieved the same. That apart it is stated by Shri R.K. Sharma that the cloths of the accused seized and the knife which was said to be stained with blood, were never sent for examination to the forensic laboratory and no report with regard to existence of human blood on these Articles were proved. Accordingly, Shri Sharma submits that one of the circumstances which was available has not been believed by the learned trial Court and on this count, the trial Court has held that this circumstances is not proved by the prosecution. Accordingly, it is submitted by Shri R.K. Sharma that only two circumstances exist against the appellants, namely, the evidence of accused being last seen alongwith Ram Singh and the extra judicial confession of the accused before the Panchayat i.e. about the accused persons slapping Ram Singh and leaving him in the bank''s of the river.

It is emphasized by Shri R.K. Sharma that based on these circumstantial evidence conviction of the appellants u/s 302 and Section 201 is not permissible. It was argued by him that the chain of circumstances required to complete the link and to bring home the guilty of the accused is not established by the prosecution and, therefore, benefit of doubt is to be granted to the accused persons as the prosecution has miserably failed to prove the guilty of the accused beyond doubt. Placing reliance on the following judgments, it was argued, that based on such circumstantial evidence which does not complete the chain of events, conviction cannot be ordered and benefit has to be given to the appellants. The Judgments relied upon are,

(1) The State of Punjab Vs. Bhajan Singh and Others,

(2) Tikaram Vs. Mundikota Shikshan Prasarak Mandal and others, AIR 1984 SC 1622.

(3) Bhujbal and Others Vs. State of M.P.,

(4) Sukhram Vs. State of Maharashtra,

Shri R.K. Sharma, thereafter, took us through the post mortem report Exhibit P-23 and the statement of Dr. Jai Narayan Soni, PW-18 and submitted that in the evidence of the doctor, the opinion given is that based on the circumstantial evidence no definite opinion about cause of death can be established, it was submitted by Shri R.K. Sharma that no positive opinion is given by Dr. Jai Narayan Soni, PW-18 with regard to the cause of death and in his statements recorded, the doctor has given an opinion that injuries on the body of the deceased could be sustained due to attack or bite by a aquatic animals cannot be ruled out. Accordingly, it was submitted by Shri Sharma that prosecution has miserably failed to prove the case and the appellants are entitled for acquittal.

Refuting the aforesaid, Shri Vivek Khedkar, learned Dy. Advocate General, emphasized that the statement of the witnesses available, particularly, the evidence with regard to the accused being last seen along with deceased and the manner in which the body of the deceased was found at the place of incident clearly indicates that the appellants have committed the offence therefore, he prays for dismissal of the appeal.

We have heard the learned counsel for the parties and perused the record.

This is a case where there is no direct evidence to bring home the guilty of the accused person and to say that they are guilty of the charges levelled against them. It is interesting to note that in the postmortem report Exhibit P-23 and in his statement P.W.-18, Dr. Jai Narayan Soni has given various details with regard to the injury. The injury sustained are mainly on the lower part and on the thoracic region. Most of the injuries are of such a nature that the entire flesh from body has been removed and it has been seen from the postmortem report that the bones and vertebra are visible. In the conclusion the doctor has gave the following opinion with regard to cause of death "Nature of death should be decided on the basis of circumstantial evidence". It is therefore clear from the statement of the doctor that no definite opinion about the cause of death is available. That apart, the postmortem report, Exhibit P-23 indicates that the entire portion of the head was removed from the body and it was found lying separately. If that be so an assumption can be drawn that the body was removed from the head and for the said purpose a sharp weapon strong enough and substantially big capable to chop off a head should have been used. From the seizure memos available on record based on recovery made u/s 27 of the Evidence Act, it is seen that what is seized on the statement of the accused person are small knives, the size of which has been shown between 6 to 9 inches. They are not shown to be weapon so strong enough that the head of a human being can be chopped off from the body by using of such a weapon (knife). That apart, the knife and the weapon seized were never sent for chemical examination to the forensic laboratory and availability of human bloods on these weapons are also not established. Similarly, the so called cloths said to be worn or used by the accused person and seized on the basis of memorandum u/s 27 of the Evidence Act is also not sent for forensic examination. It is because of this that the first circumstance based on seizures made at the instance of the accused persons cannot be relied upon and in disbelieving the same we are of the opinion that the trial Court has not committed any error, the first circumstance is not proved by the prosecution.

The other two circumstances that are held to be established by the trial Court on the basis of the material available on record. The first circumstance is that Ram Singh was seen with the accused persons in the morning on 13th August, 1994, when they were going to Kailaras to work as labourers and on the next day when they returned back to the village leaving Ram Singh near the river side. This circumstance is in no way to sufficient enough to bring home the guilt of the accused. As no other exonerating evidence or circumstances are available to say that the accused had committed the offence. The next circumstance is the extra judicial confession of some of the accused persons before the Panchayat, i.e. some of the accused have said that the deceased was slapped by them because he was in a drunken condition and he was abusing them. Merely because the accused person had been slapped Ram Singh and left him in the bank of the river an inference cannot be drawn to the effect that the accused persons have committed the offence.

Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, ) has held that, the conviction on the basis of circumstantial evidence can be ordered only if the chain of events are complete and a specific finding based on the circumstance can be drawn, the principles has been laid down in paragraphs 152 and 153 and it is held by the Supreme Court that the following five conditions should be made out, and the conditions are so laid down:-

A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established.

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. There is not only a grammatical but a legal distinction between ''may be proved'' and ''must be or should be proved'' as was held by this Court in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, where the following observations were made.

certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions

(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.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

(Emphasis Supplied)

If the facts of the case are analyzed in the back drop of the aforesaid principles, it would be seen that the two circumstances made out in the present case are not such that based on the same a specific conclusion can be drawn with regard to allegations made against the appellants. The chain of events required to complete the circumstance has various missing links that remained unexplained. Certainty with regard to the guilt of the accused cannot be concluded based on the chain of circumstances and the facts established is not consistent with the hypothesis to establish the guilt of the accused. In fact, the circumstance are not of a conclusive nature. The five golden principles laid down by the Supreme Court are clearly not made out in the present case. Mere suspicion with regard to the presence of the appellants at the scene of the crime on the previous day or the evidence of being last seen together with the deceased cannot be taken as proof to convict them for the offence. Accordingly, in the facts and circumstances, we have no hesitation in holding that prosecution has failed to prove the guilty of the appellants beyond reasonable doubt, the benefit has to go to the appellants and, therefore, we allow this appeal. The judgment and sentence passed by the trial Court as contained in judgment dated 16th July, 1999 passed by the Additional Sessions Judge, Sabalgarh, in S.T. No. 44/95 is quashed. The appellants are acquitted of all the charges levelled against them. They are set free. The bail bonds are released and appellants who were already on bail be left without taking any action.