Keshav Singh vs State of M.P.

S.K. Chawla, J.

This is jail appeal by an accused who has been convicted and sentenced to life imprisonment u/s 302.I. P. C.

The prosecution story was that in village Kamlapur, P. S. Gohad, District Bhind, on 22-12-1989, at about 9 or 10 a.m., Atar Singh (P. W. 1), cousin brother of deceased Mevaram, heard in his house the Mevaram was lying injured near the canal of the village. Atar Singh rushed to the deceased and found him lying sprawled on a public way near the canal of the village with a bead injury The deceased was groaning but was unable to speak anything Atar Singh carried the deceased in a bullock-cart to P. S. Gohad, but the deceased died on way Atar Singh lodged a report (Ex. P-1) at 1.00 p.m. stating that accused Keshav was seen with an axe by Hiralal (P. W. 4) and Jandel Singh (P. W. 2) sitting near the deceased when the latter was bathing at the canal some time before the crime. He also stated in the report that accused Keshav had fled away from the village after the occurrence.

The post-mortem examination of the deceased, Ex. P-6, as proved by Dr. Bhadona (P. W 8), revealed that the deceased had sustained an incised wound 16 cm x 2 1/2 x 4 cm. on parieto occipital region of the scalp with brain tissues clearly cut and underlying left parietal bone fractured. The cause of death was head injury.

There were no eye-witnesses to the crime. The case rested on circumstantial evidence. The learned Additional Sessions Judge found the following circumstances to be established :--

(i) At about 9.30 a. m. on the date of incident, (i.e. on 22-12-1989) prosecution witnesses Jandel Singh (P. W. 2) and Hiralal (P. W. 4) had seen deceased Mevaram bathing at the canal of the village and had seen accused Keshav sitting nearby with an axe in his hand. The crime came to light just half an hour thereafter, i.e. at about 10.00 a. m., when people saw deceased Mevaram lying in an injured condition on a passage near the canal. In other words, the accused was last seen with the deceased some time before the commission of the crime.

(ii) The accused was found to be absconding from his house soon after the commission of the crime by prosecution witness Chandrabhan (P. W. 5).

Talking the first circumstance about accused being last seen with the deceased, it is well to take note of the fact that the place near the canal, where the accused was said to have been seen sitting near the deceased, was a place of public resort. If the accused was seen there, so did the prosecution witnesses Jandel Singh (P. W. 2) and Hiralal (P W. 4) happen to come there and perhaps there might have been many others. If the accused was at that time holding an axe, that was by no means unusual for a villager. The said circumstance was not incompatible with the reasonable possibility that the accused was present near the canal innocently. It was unproved part of the prosecution story that on 5-1-1990, an axe was seized on the information and at the instance of the accused from his house. The unproved prosecution story further was that the blade of the axe had been washed away by that time by the accused and so no blood could be found thereon. The axe for that reason was also not sent for chemical examination. The fact remains that there was no" indication that the axe seized from the accused was used for commission of the crime. Even Dr. Bhadoria (P. W. 8) was not shown the seized axe to say if injury found on the deceased could have been caused by that particular axe. Since the only proved circumstance is that the accused was seen to have some axe with him at the time when the deceased was near him at the canal, the possibility that the accused was having the axe with him innocently, is not reasonably ruled out. The place where the accused was "last seen" with the deceased was a place of public resort and the hour was also not an unearthly hour, but morning time around 9.30 a.m. when like many others, the accused could have been present there innocently.

It may be mentioned here that clinching character of the circumstance about "last seen" may differ from case to case. It may be very less where, as in this case, the place where the accused was "last seen" was a place of public resort and the hour, not an unearthly hour. It may be less even when the distance of the place where the crime was committed from the place of last seen might be too great or the time gap too large. But even if the circumstance about "last seen" in a particular case is shown to have a high degree of clinching character, it may by itself perhaps be rarely sufficient to sustain the conclusion of guilt. The circumstance about "last seen" came under scrutiny in a large number of cases, but notice of two decisions of the Supreme Court might be appropriate here. In Lakhan Pal v. State of M. P. AIR 1979 SC 1620 , the accused and the deceased were real brothers who were together in their field prior to the murder of the deceased in that field. Commenting on the circumstance about "last seen", their Lordships observed that the deceased was a young man aged about 17 years. If the accused would have attacked the deceased around 4.00 p. m in the field (when the crime was committed), the deceased would have undoubtedly put up stiff resistance in order to protect himself and in all probability would have caused some injuries on the person of the accused. The accused had however sustained no injuries. Hence the circumstance about both being last seen did not irresistibly lead to the conclusion that the accused must have murdered the deceased. In another case, Prem Thakur Vs. State of Punjab, the accused was present with five deceased persons, who were his co-labourers in a field on a previous evening and he was found to be missing from the field in the next morning. The dead bodies of five deceased persons were found in a well in the field in smouldering condition with smoke coming out from the well. Their Lordships observed that the accused was working with the deceased persons and others and there was nothing unnatural in the accused being in the Company of his companions on the evening before the murders were committed. It was said that the five deceased persons were administered liquor and while they lapsed into a deep spell of sleep, they were carried one by one to the bottom of a 35 ft. tube well and thereafter they were set on fire. The medical evidence showed that the liquor consumed by the deceased could not have produced unconsciousness. The deceased persons were young-able bodied labourers. It placed quite some strain on credulity to accept that a single person could have finished off his five companions in the fiction like manner alleged by the prosecution. The circumstance about "last seen" was held to be inconclusive. So much would suffice on the discussion of the circumstance about "last seen".

Coming now to the second circumstance in the precent case, there was evidence of Chandrabhan (P. W. 5) that he had gone to the house of the accused after the matter was reported to the Police. He had found that the house of the accused was lying locked. Accused with his parents and sisters etc. was missing from the village. This was all the evidence about absconsion of the accused. There was no evidence to show that accused remained absconding for a fortnight or so and was arrested on 4-1-1990, when it is said that he surrendered before Supdt of Police, Bhind.

With regard to absconsion it is well to state that even an innocent man may feel panicky and try to evade arrest when suspected of a grave crime Such is the instinct of self-preservation in a man. In the present case, a named report had been lodged against the accused expressing suspicion that he had committed the crime of murder. The accused was not alone to disappear. His entire family was found to have gone away, making it probable that the family had gone away for some legitimate reason. After all why should the parents, sisters etc have felt compelled to run away, like the accused ? The act of absconsion is no doubt a relevant piece of evidence to be considered along with other evidence, but its value would always depend on the circumstances of each case. Normally, the Courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. (See Matru alias Girishchandra v. The State of U. P. AIR 1971 SC 1050

It is trite law with regard to cases based on circumstantial evidence that circumstantial evidence in order to furnish basis for conviction should have a high degree of probability, that is, so sufficiently high that a prudent man, considering all the facts and realising that the life and liberty of the accused depends upon the decision, feels justified in holding that the accused committed the crime. The circumstantial evidence must be consistent and consistent only with the guilt of the accused. If any rationale explanation is possible, then there is element of doubt of which the accused must be given benefit This is also expressed by stating that circumstantial evidence should be of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. In the present case, as we have seen, the circumstance about the accused being "last seen" with the deceased is not at all clinching and is quite consistent with his innocence. Even the circumstance about absconsion of the accused was not clearly established and even if established and considered in conjunction with the first circumstance, the entire evidence was still not inconsistent with the innocence of the accused. The one equally weighty circumstance out weighing the circumstances of the prosecution, which had appeared in favour of the accused was that he had no kind of enmity with the deceased. Why should the accused have murdered another person just for the heck of it ? Considering the entire circumstantial evidence, the case against the accused has not travelled beyond a suspicion. It is proper to give to the accused benefit of doubt.

For the foregoing reasons, the appeal deserves to be allowed. The conviction and sentence of appellant Keshav Singh for the offence u/s 302 I.P.C. are set aside. He is acquitted of that offence. He shall be at liberty forthwith, if not required in any other case.