Ramchandra Gupta and another vs State of Madhya Pradesh

Appellants have filed this appeal against the judgment dated 9.5.2007 passed in S. T. No.185/2005. Trial court convicted the appellants under

Section 302/34 and 201 of IPC and sentenced for imprisonment of life with fine of Rs.500/- in earlier count while RI five years with fine of

Rs.500/- in later.

Prosecution story in brief is that the appellants had killed the deceased on 29.8.2005 and thereafter dead body of the deceased was thrown in a

well in order to conceal the real fact. Appellants lodged a false report that the deceased herself jumped in a well and committed suicide. Initially

five persons were prosecuted for commission of offence punishable under Section 302, 498-A and 304 of IPC. Trial Court acquitted accused

persons from the offence under Section 498- A, 304-B of IPC. However, present appellants have been convicted for commission of offence

punishable under Section 302/34 and 201 of IPC and awarded the sentence. The trial Court has held that as per the evidence of Doctor, who

performed postmortem of the deceased, the deceased was died by strangulation because he noticed that 4th to 6th cartilages of trachea were

broken. The trial Court further observed that the deceased was living with the appellant No.1 and appellants conceal real facts of death of the

deceased. Hence, appellants are held guilty for commission of offence of murder. Trial Court did not find sufficient evidence in regard to demand

of dowry and cruelty against the appellants. Hence, trial Court acquitted the appellants from the charge of aforesaid offence.

Learned counsel for the appellants has submitted that the trial Court has committed an error in convicting the appellants on the basis of

suspicion, the suspicion however grave could not take place proof of the evidence beyond reasonable doubt. It is further submitted that FIR was

recorded after a period of near about one month and statements of witnesses have been recorded after a period of two months from the date of

incident. Investigation officer does not offer sufficient explanation of delay in recording FIR and statements of witnesses. Hence, prosecution has

failed to prove its case against the appellants beyond reasonable doubt.

Contrary to this learned Govt. Advocate has submitted that looking to the conduct of the appellants and circumstantial evidence and the fact that

appellants try to mislead the police about real cause of death, the appellants have rightly been convicted by the trial Court for the offence of

murder.

The deceased was the wife of appellant No.2 Santosh Kumar Gupta. Marriage had taken place near about three years before from the date of

incident. Dead body of the deceased was found in a Well. Information was given to the police on the same day that the deceased had gone outside

of the house for treatment. She did not return back, thereafter, I find out the deceased and noticed some slippers of the deceased were lying near a

Well. Thereafter, I had returned to my house and informed the same to other family members. We went at the Well along with thorn (Kanta). We

noticed that dead body of the deceased was in the Well. On the basis of aforesaid information merg was registered, which is Ex.P.11. Police

prepared Panchnama of dead body. It is mentioned in the said merg that the deceased was died after jumping in Well. Postmortem of the

deceased was conducted on 1.9.2005 by Dr. R. K. Saini, Medical Officer posted at District Hospital Sidhi. He informed that deceased was died

due to throttling because he noticed that 4th to 6th cartilage of trachea were broken. Subsequently on 28.9.2005 police registered offence against

the accused persons after a period of 30 days from the date of incident. Police conducted investigation and filed the charge sheet. Appellants

abjured the guilt and pleaded innocence. Trial Court acquitted three accused persons from the offence. However, present appellants have been

convicted as mentioned above.

Suryawati Gupta P. W. 1 is the mother of the deceased. She deposed that the deceased was killed and dead body was thrown in a Well. She

further deposed that family members of the deceased made demand of dowry from the deceased and she was ill-treated. Son of my maternal

father in-law Vashishath Muni informed me that my daughter was lying dead in a Well; thereafter we went to the house of the appellants.

Buttan @ Malti P.W. 2 is aunt of the deceased. She deposed that I had seen the dead body of the deceased floating in a Well. Her dead body

was recovered from the Well by thorn (Kanta). She further deposed that demand of dowry was made from the deceased and she was ill-treated

and tortured. She further deposed that I told the husband of the deceased not to torture the deceased.

Banwari Lal Gupta P. W. 3 is the father of the deceased. He deposed that demand of dowry was made from the deceased and she was ill-

treated and tortured. Information about death of the deceased was received by him, thereafter I went to the house of the deceased and noticed

that dead body of the deceased was lying in the well. I asked Santosh Kumar Gupta, how the deceased was died, he told me that the deceased

went to take treatment from the Doctor. Panchnama of dead body Ex. P.2 was prepared and I signed the same.

Vanshraj P. W. 4 deposed the same facts that demand of dowry was made from the deceased and she was ill-treated and tortured.

Lalarti Gupta, P. W.5 is also relative of the deceased. She was living in the same village. She deposed that I received information about death

of the deceased, I went there and noticed that dead body of the deceased was lying in the well. Santosh abused me in filthy language.

Nishchal Jharia P. W. 8 is investigation officer. He deposed that I recorded merg intimation on 29.8.2005 thereafter I recorded FIR Ex.P.4.

On the basis of merg I recorded statements of witnesses and accused were arrested. I also prepared spot map Ex.P.10 and signed the same. He

admitted the fact in his cross-examination that the date of incident is 29.8.2005. I conducted investigation of the merg. I recorded FIR on

28.9.2005 on the basis of merg intimation. He further admitted the fact that I recorded statements of witnesses under Section 161 of Cr. P.C. on

21.10.2005. He offer explanation regarding recording the statements of witnesses belatedly that at the time of death of the deceased family

members were busy in performing last rites of the deceased. Hence, there statements were recorded belatedly. He further admitted that at the time

of recording the merg it was informed by the witnesses that deceased was died by jumping in the well. The defence led evidence to the effect that

the deceased committed suicide because she had ailment of leucorrhoea.

From the evidence produced by the prosecution, it is clear that prosecution did not produce evidence in regard to fact of murder. Nobody has

seen that appellants had killed the deceased and thereafter dead body of the deceased was thrown in the Well. There is no evidence that how the

deceased was died. The conduct of the appellants is suspicious because they tried to conceal real fact of death of the deceased.

The Apex Court in the matter of Vikramjit Singh @ Vicky Vs. State of Punjab reported in (2006) 12 SCC 306 has held that prosecution does

not relieve burden to prove its case beyond reasonable doubt when prosecution prove its case then the burden in regard to such fact which was

within the special knowledge of the accused may be shifted to the accused for explanation. The Apex Court has held in regard to circumstantial

evidence and the fact that prosecution has to prove its case. In the aforesaid case, the Apex court has relied on the previous judgment in the matter

of Sharad Birdhi Chand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622. Hon''ble Apex Court in the matter of Harabeer Singh

Vs. Sheeshpal reported in (2016) 16 SCC 418 has considered the cardinal principle of criminal jurisprudence, that guilt of accused must be

proved beyond all reasonable doubt. Burden of proving its case beyond all reasonable doubt lied on prosecution and it never shifts. The Apex

Court has held as under:

It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of

proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the

administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the

accused and the other to his innocence, the view which is favourable to the accused should be adopted. [Vide Kali Ram Vs. State of Himachal

Pradesh, (1973) 2 SCC 808; State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180; Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC

415; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain & Ors. Vs. State of Assam and Anr., (2015) 11 SCC

242].

Keeping in mind the aforesaid position of law, we shall examine the arguments advanced by the parties as also the evidence and the materials

on record and see whether in view of the nature of offence alleged to have been committed by the Respondents, the findings of fact by the High

Court call for interference in the facts and circumstances of the case.

In the aforesaid case Hon''ble Apex court has further held in regard to delay in recording the statements of witnesses under Section 161 of Cr.

P. C. by the prosecution witnesses as under:

As regards the incident of murder of the deceased, the prosecution has produced six eye-witnesses to the same. The argument raised against

the reliance upon the testimony of these witnesses pertains to the delay in the recording of their statements by the police under Section 161 of

Cr.P.C. In the present case, the date of occurrence was 21.12.1993 but the statements of PW1 and PW5 were recorded after two days of

incident, i.e., on 23.12.1993. The evidence of PW6 was recorded on 26.12.1993 while the evidence of PW11 was recorded after 10 days of

incident, i.e., on 31.12.1993. Further, it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their

testimony. The Court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the Court. [See

Ganeshlal Vs. State of Mahrashtra, (1992) 3 SCC 106; Mohd. Khalid Vs. State of W.B., (2002) 7 SCC 334; Prithvi (Minor) Vs. Mam Raj &

Ors., (2004) 13 SCC 279 and Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1].

However, Ganesh Bhavan Patel Vs. State Of Maharashtra, (1978) 4 SCC 371, is an authority for the proposition that delay in recording of

statements of the prosecution witnesses under Section 161 Cr.P.C., although those witnesses were or could be available for examination when the

Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. [See also Balakrushna

Swain Vs. State Of Orissa, (1971) 3 SCC 192; Maruti Rama Naik Vs. State of Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs. State of

Punjab, (2005) 3 SCC 68]. Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its

corresponding impact on the prosecution case.

It is not necessary to consider other judgments on this point because Hon''ble Supreme court after considering previous judgments of the Apex

Court has passed the aforesaid judgment.

Accordingly, cardinal principle of criminal jurisprudence is that the guilt of the accused must be proved beyond all reasonable doubt. The

burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Next principle is that if delay in recording the

statements of witnesses under Section 161 of Cr. P. C. is not explained properly then Court cannot rely on the aforesaid evidence.

In the present case as pointed out in earlier paras of this judgment, there is strong suspicion about conduct of the appellants. However, there is

no link to the effect that anybody had seen the appellants that they had killed the deceased and thrown her dead body in the Well. Apart from this,

there is no evidence that soon before the incident the deceased was with the appellants. Apart from this, Investigation Officer has not properly

explained that why there is inordinate delay in recording the statements of witnesses of near about two months. He simply deposed that the

witnesses are family members of the deceased and they were busy in performing last rites of the deceased. In our opinion, it is not sufficient

explanation in regard to recording statements of witnesses at belated stage. This fact has came in the knowledge of the police that the deceased

was died due to throttling because the postmortem report was available on 1.9.2005 in spite of that FIR of the incident was lodged on 29.9.2005.

Statements of witnesses were recorded on 21.10.2005. In such circumstances, prosecution has failed to prove guilt of offence against the

appellants beyond reasonable doubt. Trial Court committed an error in arriving on the finding that appellants had killed the deceased on the basis

of assumptions and conduct of the appellants. The suspicion however may strong but cannot take place prove beyond reasonable doubt. Hence,

appeal filed by the appellants is hereby allowed. Appellants are acquitted from the charges. Appellant No.1 is on bail, his bail bonds are cancelled.

Appellant No.2 is in jail. He be set at liberty forthwith, if his presence is not required in any other case.