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Judgment
This appeal has been filed by the
appellants, being aggrieved by the judgment dated
29.06.1994, passed by First Additional Sessions Judge,
Shahdol in S.T. No. 117/1993, whereby appellants
Tularam and Smt. Ramkali have been found guilty for
the offence punishable under Sections 302 read with
Section 34 and 201 of the Indian Penal Code and have
been sentenced to life imprisonment and fine of
Rs.100/- each and rigorous imprisonment for three
years and fine of Rs.100/- each respectively, in default
of payment of fine, they have to suffer one month
additional simple imprisonment for each offence,
whereas appellant No.3 Bhola Prasad has been found
guilty for an offence punishable under Section 203 of
the Indian Penal Code and has been sentenced to one
year rigorous imprisonment and fine of Rs.100/-, in
default of payment of fine, he has to suffer one month
additional simple imprisonment.
The prosecution case, in a nutshell is that
on 23.05.1993, deceased Chakrawati, who was
pregnant, went to the house of one Bhaiyalal (P.W.-6),
complaining of stomach ache, where she was
examined by Buddisen (P.W.-1), who told her that she
may deliver the child in two or three days. At that
moment, appellant No.2 Ramkali came for the
deceased and both of them went back to their house.
The appellant No.1, thereafter was seen leaving the
house at about 10.30, by Buddhisen (P.W.-1) and soon
thereafter upon raising the hue and cry by appellant
No.2, one Narendra Kumar (P.W.-8) reached the spot
and upon raising the alarm by Narendra Kumar about
fire in the house, other persons too rushed to the spot.
The deceased was found lying dead in a burnt
condition inside the room. Appellant No.3, Bhola
Prasad rushed to the spot after being informed by one
Durga Prasad (D.W.-1) and thereafter went to Police
Station, Budhar and registered the Marg Intimation
(Ex.P.-13) at about 3.30 P.M. that Chakrawarti had
committed suicide by burning herself after bolting the
door of the room from inside.
On the basis of the intimation, subsequent
investigation followed. Panchnama was prepared and
the dead body was sent for post mortem. The post
mortem report (Ex.P-11), however recorded that death
of Chakrawarti took place by asphyxia due to throttling
and the burn was postmortem.
The trial Court after analysing the oral and
documentary evidence on record has recorded a
finding against the appellants and sentenced the
appellants as mentioned hereinabove, relying on the
post mortem report and the statement of Dr. B.K.
Saxena (P.W.-10) and Buddisen (P.W.-1).
The learned counsel appearing for the appellants,
very strongly contended that there is no evidence oral
or documentary to indicate that the appellants have
strangulated the deceased and set her body on fire.
Taking this Court through the evidence of Ramswaroop
(P.W.-5), Bhaiyalal (P.W.-6), Ashok Kumar (P.W.-7) and
Investigating Officer M.L. Sharma (P.W.-13), it has been
pointed out that these witnesses have totally denied
the story put up by the prosecution and their case
diary statements. It is stated that the important links
in the circumstances are missing so as to make a
complete chain. According to learned counsel, there
must be clean and unequivocal proof and the inference
of the guilty must be cogently and firmly established.
Per contra, the learned counsel for the
State, taking this court through the post mortem report
(Ex.P-11) and the statement of Dr. B.K. Saxena (P.W.-
10), has supported the judgment passed by the trial
court.
We have heard the learned counsel for the
parties at length and carefully and meticulously
perused the record of the trial Court and the evidence
adduced by the prosecution.
This is a case of circumstantial evidence
and in the case of circumstantial evidence, the settled
law is that entire chain of circumstances linking the
accused to crime must be established. We have,
therefore to see whether the prosecution has been
able to establish the chain of circumstances
connecting the appellants/accused persons to the
crime.
In the case of Hamumant Vs. State of
M.P. (AIR 1952 SC 343), the Supreme Court has
observed:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
Relying on the principles enunciated in
Hanumant''s case (supra), the supreme Court in the
case of Sharad Birdhichand Sarda Vs. State of
Maharashtra AIR 1984 SC 1622, laid down five
golden principles, which must be fulfilled before a case
against an accused can be said to be fully established,
as under :
(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 & Anr. v. State of Maharashtra (1973) 2 SCC 793, 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.
In the instant case, it is clear from the post
mortem report (Ex.P-11) and the statement of Dr. B.K.
Saxena (P.W.-10) that the burn marks on the body of
the deceased were post mortem and the death
occurred due to asphyxia due to strangulation. The
hyoid and thyroid bone was also found broken apart
from other injuries on the body. There is no doubt that
these injuries could not have been the result of fire and
there is a strong suspicion that to erase the evidence
of strangulation and other injuries, the body was put to
fire. But there is no evidence on record to indicate that
the appellants No.1 and 2 strangulated the deceased
and put the body of deceased on fire.
In the present case, almost all the material
witnesses examined by the prosecution have turned
hostile. Ramswroop (P.W.-5) has stated that the room
in which the body of deceased was found, was bolted
from inside and he had to cut open the thatched roof
to gain entry inside the room. He has categorically
stated that Tularam was not at home and the appellant
No.2, who raised the alarm was outside the house and
Bhola came later on. The statement of Ramswaroop
(P.W.-5) is corroborated by Ashok Kumar (P.W.-7) and
Narendra Kumar (P.W.-8), who in no uncertain terms
have stated that the door of the room, where the dead
body of the deceased was found, was locked from
inside and Ramswaroop (P.W.-5) after cutting the
thatched roof had entered the room and opened it.
Narendra Kumar (P.W.-8) has further stated that he met
appellant No.1 Tularam at 8.30 A.M., when Tularam
was going for his duty. All these witnesses have
categorically denied their 161 statements and
remained consistent in their cross-examination.
Investigating Officer, M.L. Sharma (P.W.-13) as well
as Ramphal (P.W.-3), father of the deceased have
stated that on reaching the spot, they found that the
roof was cut open. Arvind Kumar (D.W.-2) employer of
appellant No.1 has also stated and confirmed that
appellant No.1 was in the shop at 11 O''Clock. Durga
Prasad (D.W.-1) has stated that he informed Bhola
about the incident, who thereafter went to inform the
police. His testimony remained unrebutted as no
cross-examination was done on this point.
Buddisen (P.W.-1), a chance witness has
stated that he examined the nadi of deceased when
she came to the house of Bhaiyalal. He claimed to
have seen Tularam, appellant No.1, going from his
house at 10.30, however, it has come in his cross-
examination that he never met or talked to the
deceased prior to the incident nor seen her face as she
had covered her face by ''parda''. He has further
stated that he does not know Tularam by name and
recognized him by face and has no prior relationship
with Tularam. Under the circumstances, it would be
unsafe to rely upon the evidence of Buddisen (P.W.-1)
and to leave the fate of accused in his hands.
The learned trial Court, despite observing
that there is no satisfactory evidence available in the
case for the motive of the offence, has convicted the
appellants merely on the basis of presumption and
speculation, relying on the evidence of Buddisen (P.W.-
1), who did not know appellant No.1 and his wife and
allegedly met the deceased for the first time on the
fateful day. It is settled law that suspicion, however
strong, without conclusive evidence is not sufficient to
justify the conviction. Reference may be made to the
decision of Supreme Court in Pawan Kumar Vs.
State of Haryana (2001) 3 SCC 628, wherein it is
held:
Before adverting to the rival contentions, be it noted that the entire matter hinges on circumstantial evidence. There is also however existing on record a dying declaration, but its effect on the matter shall be discussed shortly hereafter in this judgment. Incidentally, success of the prosecution on the basis of circumstantial evidence will however depend on the availability of a complete chain of events so as not to leave any doubt for the conclusion that the act must have been done by the accused person. While, however, it is true that there should be no missing links, in the chain of events so far as the prosecution is
concerned, but it is not that every one of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. Circumstances of the strong suspicion without, however, any conclusive evidence are not sufficient to justify the conviction and it is on this score that great care must be taken in evaluating the circumstantial evidence. In any event, on the availability of two inferences, the one in favour of the accuses must be accepted and the law is well settled on this score, as such we need not dilate much in that regard excepting, however, noting the observations of this Court in the case of State of U.P. Vs. Ashok Kumar Shrivastava (AIR 1992 SC 240) wherein this Court in para 9 of the report observed :
"9. This Court has, time out of number observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so
established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise."
The other aspect of the issue is that the evidence on record, ascribed to be circumstantial, ought to justify the inferences of the guilt from the incriminating facts and circumstances which are incompatible with the innocence of the accused or guilt of any other person. The observations of this court is the case of Balwinder Singh Vs. State of Punjab (AIR 1987 SC 350) lends concurrence to the above.
Having perused the oral and documentary
evidence available on record, we are of the considered
opinion that the prosecution has failed to establish the
entire chain of circumstances to conclusively link the
appellants with the crime.
In the light of the law laid down by the
Supreme Court and in view of the peculiar facts and
circumstances of the case, we are of the considered
opinion that impugned judgment dated 29.06.1994
passed in S.T. No.117/1993 deserves to be and is
hereby set aside. The appellants No.1 and 2 are
acquitted of the alleged offences punishable under
Section 302 read with Section 34 and Section 201 of
the Indian Penal Code and appellant No.3 is acquitted
of the offence punishable under Section 203 of the
Indian Penal Code
The appeal filed by the appellants is
allowed. The appellants, who are on bail shall be
discharged of their bail bonds.