Prem Chandra, & Anr. vs State of Madhya Pradesh, & Anr.

As both these appeals have been filed under Section

374(2) of the Code of Criminal Procedure by the accused

Mangal Singh being aggrieved by the common conviction order

dated 20.05.1994 passed by First Additional Sessions Judge,

Nimad in Session Trial No. 82/1990 and 83/1990, whereby the

appellant/accused has been convicted under Section 302 of the

Indian Penal Code and sentenced for life imprisonment with

fine of Rs. 200/- and in default of payment of fine, additional

R.I for one month (two counts), we propose to deal with the

matter analogously and dispose of both the appeals by this

common order.

The prosecution case, in brief, is that on 19.01.1990, dead

bodies of two women identified as Foolbai and Shyambai were

found in the field of Rajaram at village Sirpur District

Khandwa. They were murdered. On the information, murg

No. 01/1990 and 02/1990 were registered under Section 174 of

Cr.P.C. by police Station Moghat Road, Khandwa. During the

enquiry, it was found that two ladies from village Udaypur were

missing since 18.01.1990. Ramesh (PW-1) identified the

deceased as his mother Shyambai and his sister Foolbai. It was

revealed that due to illicit relation with the appellant, deceased

Foolbai was pregnant and the appellant took Foolbai to

Khandwa for abortion along with her mother Shyambai.

Thereafter, they went to village Sirpur. At Sirpur, appellant-

accused Mangal Singh committed rape with deceased Foolbai

and then strangulated her to death with the help of co-accussed

Heeralal. Then, both the accused persons committed rape with

Shyambai then killed her. Thereafter, they smashed (crushed)

their face with stone to conceal the identity of the deceased.

After due investigation, police registered offence under

Section 376, 302 and 201 of the Indian Penal Code against the

appellant Mangal Singh and co-accused Heeralal. Charge-sheet

was filed. Then case was committed to the Trial Court.

Learned Trial court framed charges under Section 376, 302 and

201 of IPC against the appellant. The appellant abjured the

guilt and pleaded that he was falsely implicated in the case and

he is innocent. No defence witness has been examined by him.

Learned Trial Court found that no eye-witness was

available to prove the offences against the appellant-accused.

On the basis of circumstantial evidence the learned Trial Court

convicted the appellants under Section 302 of IPC and

sentenced the appellants for life imprisonment with fine of Rs.

200/- and default stipulations.

The appellant has challenged the aforesaid findings before

this Court on the ground that the circumstances which were

considered by the learned Trial Court did not lead to one and

only one conclusion that the appellant is guilty of the offence.

In fact, he was not connected with the crime at all. Learned

Trial Court wrongly believed the prosecution story. As per

Ramesh (PW-1), his mother Shyambai and sister Foolbai were

talking about going to Khandwa with appellant and co-accused

Heeralal. They did not speak about Mangal Singh. Ramesh

(PW-1) did not specify the date and time as to when the

deceased went to Khandwa. When the police came to him then

he went to his uncle''s house to inquire about his mother and

sister. The learned Trial Court convicted the appellants on

weak and contradictory evidence. Accordingly, the appellant

prayed for acquittal from the charge under Section 302 of IPC.

Heard learned counsel for the parties. Perused the record.

It is not in dispute that no direct evidence is available

against the appellant of committing murder of the deceased

Foolbai and Shyambai. The case is based on circumstantial

evidence. It is settled law that in the case of circumstantial

evidence, every circumstance against the accused shall be

proved beyond any reasonable doubt to duly establish chain of

circumstance. In the present case the deceased were resident of

village Udaipur but their bodies were found at Sirpur, District

Khandwa. In that reference, the testimony of Ramesh (PW-1) is

important. Ramesh is the brother of deceased Foolbai and son

of deceased Shyambai. According to him, his father died long

ago. The appellant Mangal Singh frequently visited his house.

Ramesh (PW-1) stated that his mother and sister had told him

that they were going to Khandwa along with co-accused

Heeralal not with the appellant for treatment of Foolbai who

was pregnant at that time. In his cross-examination, he stated

that he did not know about the date, day or time when his

mother and sister proceeded to Khandwa. Anil (PW-3) deposed

that at the request of Foolbai, he went to call appellant-accused

Mangal. Mangal told him that he will be coming in the evening

and the same was communicated to the deceased Foolbai.

These version itself are not sufficient to establish the ''last seen

together'' theory against the appellant-accused.

Bassu Bai (PW-2), Laxman (PW-8), Roop Singh (PW-9,

Ganikhan (PW-12) and Jaswant Singh (PW-18) turned hostile.

They were examined by the prosecution to establish that the

deceased went to Khandwa along with the appellant and at

different time, the deceased were seen with the appellant. But

those witnesses did not support the prosecution case to prove

the aforesaid fact. Basiruddin (PW-23) has stated that the co-

accused/Heeralal came to his shop at Khandwa seeking help to

provide bicycle. Basiruddin has not deposed any fact which

was sufficient to prove the involvement of the appellant-

accused with the crime.

Thereafter, nobody saw the deceased women going to the

spot with the appellant Mangal Singh. The involvement of the

appellant Mangal Singh is only based on seizure of some

incriminating articles from him. It was alleged that those

articles were related to the offence and deceased. Suresh

Kumar (PW-34) deposed that as per the memorandum of

appellant Mangal Singh as Exh. P/82, a pair of socks has been

seized by him from the field of Babu Khan and clothes of

appellant Mangal Singh were also seized from his house as per

seizure memo Exh.P/85. Panch witness Ismail (PW-13)

supported the testimony of Suresh Kumar (PW-34). Further, a

shawl (ghussa) and a pair of handgloves has been seized by the

police on information of the appellant and co-accused Heeralal

by seizure memo (Exh. P/8) from the spot.

Learned Trial Court relied on the testimony of Mohan

(PW-6), Ismail (PW-13) and even then held that the prosecution

has failed to establish that aforesaid articles linked the

appellant with the crime. In paragraph 15 of impugned

judgment it was held by the learned Trial Court that on the

clothes of appellant Mangal Singh and co-accused Heeralal,

blood stains and semens have been found in the FSL report

(Exh. P-94). With regard to aforesaid evidence, no explanation

has been given by the appellant. On that ground, learned Trial

Court wrongly held that it can be presumed that rape was

committed by the appellant Mangal Singh as he wanted Foolbai

to do the abortion. In paragraph 17 of the impugned judgment

Learned Trial Court held that the deceased women were of

questionable character. They were in physical relationship with

employees, officers and contractors of Punasa Dam. But, in the

opinion of this Court, the findings of learned Trial Court is

based only on presumptions and suspicions.

In the case of Sujit Biswas Vs. State of Assam [(2013)

12 SCC 406] Hon''ble Supreme Court has held that, ''Suspicion,

however grave it may be, cannot take the place of proof''. The

Apex Court has broadly discussed about ''proof'' as follows:

there is a large difference between something that `may be'' proved, and something that `will be proved''. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be'' and `must be'' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be'' true and `must be'' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, 12. In the present case, there is no direct evidence, eye-

witness available to prove the charges against the appellant,

hence, the question for consideration arises as to whether such

facts leads to inference of guilt on the part of accused

person/appellant. We find so many loopholes in the prosecution

evidence with respect to involvement of the appellant. The

chain of circumstances is completed only when the

circumstance therein are collectively considered, the same must

lead only to the irresistible conclusion, that the accused alone is

the perpetrator of the crime in question. We do not find that all

the above circumstance are sufficient to establish, must be of a

conclusive nature, and consistent only with the hypothesis of

the guilt of the accused.

Therefore, the only circumstance that human blood was

found on the clothes of appellant-accused Mangal Singh cannot

prove that the appellant alone was the culprit. Seizure of some

incriminating articles cannot be complete the chain of

circumstantial evidence.

The learned Trial Court has also considered that from the

day when the deceased left their home, the appellant and co-

accused Heeralal were also not seen by anyone in the village.

In the case Sujit Biswas (supra), the Supreme Court has held

that :

"The appellant conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. The act of absconding is no doubt 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. It can scarcely be

held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused."

In the above facts and circumstances, there is an important

missing link that no one had deposed that they saw deceased

women with the appellant at the village or at Khandwa or any

other place.

Hence, last seen together theory is not proved in this case.

The learned Trial Court further considered the circumstance

against the appellant and co-accused Heeralal that Heeralal had

asked Dr. Devendra Kumar (PW-13) about any lady doctor who

would treat his sister, and Dr. Devendra Kumar had informed

him about Dr. Raksha Sharma at Khandwa. Thereafter, Heeralal

took a bicycle on rent at Khandwa and stayed at Trimurti hotel

along with his friend in the fake name of Ramsingh. One

Ganikhan (PW-12) and Jaswant Singh (PW-18) deposed that

two men traveled along with two women in Gani''s tonga from

Khandwa to Sirpur but learned Trial Court itself specified that

they did not identify those four persons.

The learned Trial Court itself held no one established that

the deceased women along with the appellant and co-accused

Heeralal went to the spot. As per the learned Trial Court, only

presence of Heeralal (co-accused) at Sirpur, Khandwa and

Udaypur was established. Because the clothes of the appellant

and co-accused Heeralal were stained with blood and semen.

Therefore in paragraph 33 of the impugned judgment, the

learned Trial Court presumed that the appellant and co-accused

Heeralal were involved in sexual exploitation of the deceased,

hence after the pregnancy of Foolbai, the appellant and co-

accused Heeralal took the deceased women to Khandwa and

after committing rape with them, they were murdered by the

appellant and co-accused Heeralal.

In case of Sharad Birdhichand Sarda v. State of

Maharashtra [AIR 1984 SC 1622], Hon''ble Supreme Court

has held as under:

"Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence."

In view of the thorough discussions in the foregoing

paragraphs, it would be extremely difficult to prove the

presence of appellant at the time of the incident on the spot.

No evidence has been produced to link him with the case. We

find that the prosecution has failed to establish the link of the

appellant with the crime.

In case of Dhal Singh Devagan vs. State of Chhattisgarh

[2017 Cr.L.J 1143 (SC)] and Selvam Vs. State [2017 Cr.L.J

565 (SC)], it was held that if prosecution fails to establish the

chain of circumstances and prove the guilt of the accused, then

accused is entitled to get the benefit of doubt. His conviction is

not proper.

Accordingly, we find that the present appeals filed by

appellant Mangal Singh are liable to be and is hereby allowed.

Conviction and punishment of the appellant under Section 302

of Indian Penal Code is set aside. He is acquitted from the

charges of 302 of IPC . The fine amount, if any, deposited by

the appellant be refunded to him. The finding of the learned

Trial Court with regard to disposal of seized property is hereby

maintained.

Let record be sent with the copy of this order to the Trial

Court.