Ram Moorat and Another vs State of U.P.

B.L. Yadav, J.—The Appellants Ram Murat and Smt. Sonia have preferred the aforesaid criminal appeal against their conviction and sentence u/s 302 and 302/149 IPC and u/s 201 IPC Ram Murat Appellant No. 1 has been sentenced to undergo rigorous imprisonment for life on the first count and for three years rigorous imprisonment on the second count. Both the sentences have, however, been directed to run concurrently by the judgment and order dated 6-11-82 rendered by Sri S.C. Jam, Sessions Judge, Mirzapur in S.T. No. 59 of 1982.

The occurrence was dated 8-11-1981 at about 2 P.M. The first Information report (Ext. ka-2) was lodged by Ram Klshun Chaukidar (PW. 2) at police station-Kone of district-Miraapur at 11.30 P.M. on 9-11-1981. The police station was at a distance of 15 miles from the village-Sasanai-Chulhiyawa Jungle-the place of occurrence. In the first information report (page-2 of the paper-Book), it was stated that on 9-11-1981 at 11-12 P.M. the informant Ram Kishun-Chaukidar (PW 2) was informed that in the Mazra Chulhiyawa of vill. Sasanai there was a dead body. The head was separated from other part of the body. The information was conveyed to the Chaukidar who went on the spot along with other persons and found drops of blood on the passage through the forest. The dead body was lying in a Naala to the south of the foot-path. At a distance of 40-50 paces, the head was also discovered and that the dead body was of one Deo Chand son-in-law of Gajadhar (PW 4), and one Murahu was deputed to convey the news to the family of Deo Chand deceased and to trace out Smt. Sonia the wife of the deceased. As the persons having collected there informed that Deo Chand had come to the village to take his wife Smt. Sonia Appellant No. 2 along with him, the informant there after proceeded to police station Kone and lodged the first information report Ext. ka-2 the same night at 11.30 P M. the first information report was recorded by PW 10 Head Constable Ram Naresh Yadav and he registered the case in the General Diary Ext.ka-14. He sent special report at 6.05 A.M. the next morning per constabte Shyam Behari Singh. As R.P. Saroj (PW 9) the Investigating Officer was present at the police station when the report was lodged, he took the investigation in his hand and proceeded to the place of occurrence at 4.00 AM and reached there at 11 AM and found the blood lying on the foot path passing through the forest. He traced out the dead body of Deo Chand. A trail of blood marks were seen. The inquest report Ext.ka-7 was prepared and the dead body duly sealed was sent for post mortem. Dr. G. D. Dubey PW 1 conducted the autopsy at 12.15 P.M. on 12-11-81. He found following ante mortem injuries on the person of deceased:

Incised wound on whole of the circumference of neck upper part at the level of body of the clavicle "vertebrae on posterior part and just below the chin on anterior aspect. Head was lying separately from the body. On placing the bead on its original position, close to the other part of the body, the circumference of the wound was 37 Cm. obliquely cut. Blood clots were present.

Incised wound 3 cm � 2 cm � muscle deep on right forearm front just below fossa. Direction oblique.

Incised wound 4 1/2 cm. � 2 1/2 cm. � muscle deep on right forearm posterior aspect, 6 cm. below elbow.

Abraded contusion 13 cm. � 9 cm. on left side chest, 5 cm. below nipple.

Abrasion 4 cm. � cm. on back of right shoulder.

Abrasion 7 cm. x 2 cm. on front of right knee.

The doctor was of the opinion that the death was caused as a result of shock and haemorrhage by the aforesaid injuries.

The prosecution examined PW 1 Dr. G.D. Dubey, who conducted the post mortem examination. PW 2 Ram Kishun Chaukidar who lodged the first information report, PW 3 Lali who is a witness of the recovery of the dead body, PW 4, Gajadhar father of Smt. Sonia Appellant No. 2 who stated that his daughter Smt Sonia was married to deceased Deo Chand who has come to his house on 8-11-81 and he has gone with his wife at 2 P.M towards the forest, On the next day at about 8 A.M. Lali PW 3 came and informed that a dead body was lying in the forest and there were marks of blood on the path way and some persons of the village had also reached there. He went there and found the dead body but the head was missing which was traced out at a distance of 70-80 paces towards the south. Thereafter the Chaukidar was informed about the incident who went to the police station and lodged the first information report.

PW 4 Ram Bilas stated that Ram Murat was seen going to the forest on the date of the occurrence along with the Tabal which was recovered by PW 9 R.P. Saroj the Investigating Officer. PW 6 Ragghu was a witness who proved the alleged extra judicial confession made by Smt Sonia Appellant No. 22. PW 7 Dharmu stated that he saw Appellant No. 1 Ram Murat going to the forest on the date of the occurrence.

PW 8 Ram Preet was examined to prove that he knows about illicit relations between Appellant No. 1 Ram Murat and Smt. Sonia Appellant No. 2, and he was told by the other persons that there was a dead body lying In the forest and thereafter other persons collected there.

PW 9 Ram Palat Saroj is the Investigating Officer who has deposed about the recovery of the dead body and the arrest of the accused on 11-11-81 from a bush on the information received to that effect and he interrogated the accused Ram Murat Appellant No. 1 who stated that he would point out the Tabal near a Bush at a distance of 100 yards which contains blood stains and this Tabal was used in the occurrence. The Tabal was sealed and Fard Ext. K.a-6 was prepared.

The aforesaid prosecution witnesses were relied upon by the learned Sessions Judge, who has convicted and sentenced the aforesaid Appellants.

Sri Vidya Kant Tewari the learned Counsel for the Appellants argued that there was no eye-witness of the occurrence and the dead body was recovered on the 2nd day. The head was lying separately. The case was based on circumstantial evidence. Even the recovery of Tabal and the arrest of the accused persons on 11-11-81 by PW 9 R.P. Saroj from the forest appears to be doubt full in as much as the Appellants are alleged to have caused the murder of deceased Deo Chand on 8-11-81. The dead body was recovered on 9-11-81 and the arrest was made on 11-11 81 after about four days. Why should the accused persons remained sitting there for four days just to be arrested and so that Appellant No. 1 Ram Murat might have pointed out the Tabal the weapon used in the incident. The circumstantial evidence must be of such conclusive nature so as to point out sufficiently proximate to a principal fact, small factum probandum, and in brief the circumstantial evidence must satisfy at least three tests.

(i) The circumstance from which inference of guilt is sought to be drawn must be cogently and firmly established;

(ii) That circumstances should be of a definite tendency pointing towards the guilt of the accused;

(iii) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

In the present case, neither such chain has been completed nor the circumstances point out towards the guilt of the accused nor circumstances Indicate an inference of guilt of the Appellants and the learned Sessions Judge has erred in relying upon the prosecution witnesses just on insufficient grounds. He pointed out the infirmities in the statements of the prosecution witnesses. He also urged that the recovery of the Tabal on the pointing out of Appellant No. 1 Ram Murat was not consistent with the provisions of Section 27 of the Indian Evidence Act and it does not appeal to the human experience as to why the accused persons after having committed murder on 8-11-1981 in the forest would remain sitting there till 11-11-1981 just to be arrested by the Sub Inspector and to point out the recovery of the Tabal with which the murder was caused. In the normal course of things both the accused persons would have immediately run away in the night or at some convenient time, just after the occurrence further no body has seen them in the forest as no such witness was examined. The statement of Raggbu PW 6 also could not be relied upon to prove the extra judicial confession made by Appellant No. 22 Smt. Sonia.

We have heard the learned Additional Government Advocate for the State who has supported the impugned judgment and order and pointed out that there was no infirmity in the statement''s of the prosecution witnesses and the recovery of the Tabal on the pointing out of the Appellant No. 1, was proved by PW 9 R.P. Saroj and it was consistent with the provisions of Section 27 of the Indian Evidence Act, and there was no infirmity in the extra judicial confession made by Smt. Sonia Appellant No. 22 to PW 6 Ragghu.

Before proceeding to discuss the evidence and the submissions, it is pertinent to mention certain principles pertaining to the criminal statutes. It is well known that the language employed by the legislature to create a crime must be strictly construed unless the language so employed points out any thing positive, otherwise where two constructions are possible about the guilt of the accused-one indicating that he has committed the offence and the other that there was some reasonable apprehension or doubt, the latter has to be preferred. This rule, obviously exhibits preference for the liberty of the subject and in case of ambiguity, enables the Court to resolve the doubt in favour of the subject and against the legislature which has failed to express itself clearly-Director of public prosecution v. Schildkamp (1969) 3 All ER 1640 , Dilip Kumar Sharma and Others Vs. State of Madhya Pradesh, , State of West Bengal and Others Vs. Swapan Kumar Guha and Others, . Another rule emanating from the aforesaid rule may be stated. If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions, we must give the more lenient one in the words of Hon''ble Mahajan, C.J., it may be stated that if two possible and reasonable constructions can be put upon penal provision the Court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. It is not competent to the Court to stretch the meaning of expression used by the Legislature in order to carry out the intention of the Tolaram Relumal and Another Vs. The State of Bombay, ; State of Madhya Pradesh Vs. Azad Bharat Finance Co. and Another, ; London and North Eastern Railway v. Derriman (1946) 1 All. ER 255.

We shall now proceed to appreciate the evidence and to scrutinise the offence alleged to have been committed by the Appellants, keeping in view the aforesaid principles for the interpretation of the criminal statutes. As the case is based on circumstantial evidence unless the ingredients to the said proposition are proved or complete in all respects it would not be safe to place reliance upon the prosecution witnesses. It is by now well settled that the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation or on any other hypothesis than that of the guilt of the accused. Such evidence must be qualitatively such that on every reasonable hypothesis the conclusion must be that the accused is guilty; not fantastic possibilities nor freak inferences to rational deductions which reasonable mind make from the probative force of facts and circumstances. In other words we may state that circumstantial evidence must be a combination of facts creating a net work through which there is no escape for the accused because the facts taken as a whole do not admit of any inference, but of his guilt. To put it differently circumstantial evidence must be not only consistent with the guilt of the accused, but must be inconsistent with his innocence Rahman v. State AIR 1972 SC 110 ; Ram Krishna Bedu Rane Vs. State of Maharashtra, . In the present case we proceed to ascertain a probative value of the circumstantial evidence led by the prosecution to prove the guilt and the concealment of the evidence against both the accused, PW 1 Dr. G.D. Dubey has no doubt conducted autopsy on the dead body, but we are constrained to say that on a perusal of the nature of ante-mortem-injuries it becomes obvious that even though it was stated that the probable time of the death was about four days, the murder was committed five to 6 days prior to post mortem. As the rigor mortis has passed off from both upper and lower extremities and decomposition was present, blister present at places, it appears that the murder would have been committed a day or so earlier to the time pointed out by the prosecution.

PW 2 Ram Kishun Chaukidar informant who is not an eye witness nor he has deposed about any circumstantial evidence except that on information be reached the forest and found the dead body the next day and proceeded to the police station to lodge the first information report.

PW 3 Lali is also a witness that he saw the dead body in the forest but on the whole he did not explain as to what was the necessity to reach the residence of one Kalka Singh. He appears to be a chance witness,

PW 4 Gajadhar the father of Appellant No. 2 also did not state anything so conclusively as to reach the inference that the Appellant would have committed the murder on the date of the occurrence rather just he stated that on Sunday i.e. on 8-11-81 his daughter Smt. Sonia Appellant No. 2 proceeded with her husband Deo Chand deceased to the latter''s house and thereafter on information being conveyed to him on the next date he went to the forest along with other persons and recognised the dead body of bis son in law Deo Chand no circumstance was pointed out by him which may indicate about the participation of the Appellants in the crime.

PW 5 Ram Bilas also has just stated that on the date of the occurrence he saw Ram Murat Appellant No. 1 going to the west from the village to the forest with Tabal but he did not state these facts to the Investigating Officer when he went there to record the statement. His statement also does not contain any conclusive deposition about any possibility that the Appellants or atleast Appellant No. 1 would have committed the murder. It does not lead to any conclusive opinion, nor it points out to any chain being completed.

PW 6 Ragghu has stated about the extra judicial confession made by Smt. Sonia the Appellant No. 22, but there is no reason indicated as to why Smt. Sonia would have chosen only Ragghu who was not her close relation to divulge any information about the alleged crime that she has committed. The concept of extra judicial confession is also somewhat different. We are of the opinion that the extra judicial confession must be proved to have been made by the parties with his or with her free-will and with full knowledge of the nature and consequences of confession In case it is not made before the Magistrate or in Court it must be so clear and explicit from which guilt may be implied at the same time. It may also be stated that extra judicial confession in the very nature of things is a weak piece of evidence. This may also as obtained by promise of favour or false hope. The exact words used by the person making it must be stated. In the present case, having considered the statement of PW 6 Ragghu we are of the opinion that the same has not been correctly proved as the exact words used have not been indicated nor from such statement it could be inferred that the guilt has been acknowledge by the Appellant No. 2.

PW 7 Dharmu is also a witness who just saw on the date of occurrence that Murat Appellant No. 1 was going towards the forest with the Tabal and he did not see him again. From his statement also we are, not satisfied that he has correctly stated the truth, nor his statement leads to any conclusive opinion nor it leads to any chain being completed pointing out to the guilt of the accused and to no other inference.

We have also perused the statement of PW 9 R.P. Saroj Investigating Officer who is alleged to have conducted the investigation and arrested both the accused persons on 11-11-81 from a bush in the said forest. In the appreciation of oral testimony in criminal cases the human psychology has to be borne in mind. It does not appeal to the human reasoning as to why after committing murder on 8-11-81 both the accused persons must remain in the same forest and not run away at any time when no body has seen them committing the murder, nor there was any body present in the forest either in the day or in the night. Further it is also not explained by the prosecution as to why Appellant No. 1 remained there for four days just to point out the Tabal when he has been arrested by PW 9 R.P. Saroj the Investigating Officer. As regards the recovery of Tabal on the pointing out of Appellant No. 1 is concerned, statutory provision is contained u/s 27 of the Evidence Act This section opens with the word "provided." In other words Section 27 is by way of a proviso to Sections 25 and 26 of the Act it has to be proved that the recovery of the instrument employed in committing the offence was made strictly within the provisions of Section 27-Proviso has to be interpreted consistent with the principles of interpretation. The main function of the proviso is to carve out an exception of the main enactment, but at the same time it can not normally be so interpreted as to set at naught the main enactment A.N. Sehgal and others Vs. Raje Ram Sheoram and others, ; Local Govt. Board v. South Stone Union (1009) AC 57, In the present case u/s 26 no confession made by any person while he is in the custody of police officer shall be proved as against such person, where as u/s 25 no confession made to the police officer shall be proved as against the person because of an offence. Section 27 however points out that when any recovery has been made on the pointing out of the accused in custody of a police officer, the same can be proved, in case. It relates distinctly to the fact or information. In the present case from the evidence on the record including the statements of PWs We are not satisfied that the Appellant No. 1 would remain sitting there for about four days in the bush just awaiting the arrival of the PW 9 R.P. Saroj the Investigating Officer to be arrested by him and to make out the statement pointing out the recovery of the Tabal, with which the murder was alleged to have been committed. Under these circumstances even if PW 9 R.P Saroj stated about the recovery of Tabal at the pointing out of Appellant No. 1, but we are doubtful about the same as it has not been clarified by the prosecution as to why should both the accused remain sitting there for about four days when there was sufficient opportunity to them to run away to a more safer place This does not appeal to the human experience and psychology Consequently we entertain grave doubt about the veracity of the statement of PW 9 R.P. Saroj. In view of the discussions about the prosecution witnesses we are of the opinion that the prosecution has failed to prove the guile against the Appellants The evidence led in support of the prosecution case was of circumstantial nature The ingredients of the circumstantial evidence as pointed out above have not been satisfied We are accordingly of the considered opinion that the prosecution has failed to prove the case against the Appellants on the basis of such circumstantial evidence.

In view of the premises aforesaid the judgment and order rendered by the learned Sessions Judge, Mirzapur can not be sustained.

In result, we allow the appeal and set aside the conviction and sentence against the Appellants.

It appears that the Appellants are in Jail, they shall be set at liberty forthwith unless wanted in some other case.