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Judgment
In this criminal appeal filed by the accused appellant,
Ramesh Meena, u/s 374 (2) of Cr.P.C ., the judgment dated 29 th of
November, 2008 passed by learned Additional Sessions Judge (FT)
No.3, Udaipur Udaipur Camp Salumber, Udaipur (for brevity,
hereinafter referred to as ''Trial Court'') in Session Case
No.18/2008 is under challenge, whereby the accused appellant
was convicted for the offence under Section 302 of IPC and
sentenced for life imprisonment along with fine of Rs.100/- with
the default stipulation to further undergo one month''s
imprisonment.
Briefly stated, the facts of the case are that a written
complaint (Ex.P/1) was filed by PW.1, Dharamchand, on
14.01.2008 at Police Station Rishabhdeo, Distt: Udaipur, in which
following allegations were levelled by him: -
"VERNACULAR MATTER OMITTED"
Upon the aforesaid written complaint submitted by PW.1
Dharamchand, FIR No.21/2008 was registered against unknown
person u/s 302 IPC at Police Station Rishabhdevo, and
investigation commenced by the Sub-Inspector, Jagannath. First
of all investigating officer went on the place of occurrence and
prepared site plan (Ex.P/2). The ''Panchnama'' of the dead body
was also prepared at 02.30 PM on 14.01.2008 itself and after
postmortem the dead body of deceased Smt. Ramila W/o Ramesh
Meena (appellant) was handed over to his brother-in-law Mukesh
for cremation.
During the investigation, from the place of occurrence, which
is house of appellant and deceased, blood smeared soil and
sample of control soil was taken in possession vide Ex.P/5 and
clothes of deceased, viz. ''Ghagra'' and undergarment, having blood
upon them, were also taken in possession vide Ex.P/6. During
investigation, one agreement (jkthukek) was also taken in
possession vide Ex.P/7, and after arrest, one blood stained shirt
was recovered on the basis of information given by accused
appellant, Ramesh vide Ex.P/13 on 19.01.2008 at 03.15 PM from
the house of co-accused Smt. Babli, so also, one stick (M.Mk)
having blood upon it, was recovered vide Ex.P/15 on 17.012.008
at 03.40 PM on the information given by accused appellant,
Ramesh.
After completion of investigation, charge sheet was filed
against the accused appellant, Ramesh and two other co-accused,
namely, Shyamlal and Smt. Babli @ Pari W/o Babulal Meena under
Section 302 and 302 / 120B of IPC in the court of Addl. Chief
Judicial Magistrate, Kherwada, Distt: Udaipur, from where the
case was committed to the court of Sessions Judge, Udaipur, but
later on transferred to the court of Addl. Sessions Judge (FT)
No.3, Camp Salumber, District Udaipur, for trial. The charge sheet
was filed against the accused persons on the basis of
circumstantial evidence because there was no eyewitness of the
incident.
The learned trial court thereafter framed charge against the
appellant, Ramesh, co-accused Shyamlal and Smt. Babli for
offence u/s 302 and 302/120B of IPC, but all the three accused
denied the charge and claimed trial.
In the trial, statements of 19 prosecution witnesses were
recorded and 28 documents were exhibited from the prosecution
side to prove the case on the basis circumstantial evidence. After
recording the evidence of prosecution, statements of all the
accused were recorded u/s 313 Cr.P.C . In the statements recorded
u/s 313 Cr.P.C ., all the three accused stated that they are
innocent and falsely implicated in this case. Accused appellant,
Ramesh specifically stated that on the date of incident, I was not
present in my house. However, no evidence was led by the
accused persons.
The learned trial court finally heard the arguments and after
evaluating the evidence available on record proceeded to acquit
the co-accused, Shyamlal and Smt. Babli, from the offence u/s
302/120B of IPC, but convicted the accused appellant, Ramesh,
for the offence u/s 302 of IPC vide judgment dated 29.11.2008
and passed sentence of life imprisonment along with fine of
Rs.100/- with the default stipulation to further undergo one
month''s imprisonment. In this appeal, the judgment is under
challenge on various grounds.
Learned counsel for the appellant vehemently argued that
the learned trial court has failed to appreciate the entire evidence
of prosecution in right perspective because there is no eyewitness
of the incident and entire prosecution case is based upon
circumstantial evidence. It is also argued that the investigating
officer, Jagannath, who has conducted the investigation did not
appear in the witness box to prove the investigation, which is
based upon circumstantial evidence. Therefore, in absence of any
evidence to prove the investigation it cannot be said that
prosecution has proved its case beyond reasonable doubt against
the appellant.
It is further argued that relation of appellant with his wife
Smt. Ramila (deceased) were cordial and there is no evidence on
record to prove the fact that there was any motive for the
appellant to cause death of his wife. The motive, which is alleged
by the prosecution has not been proved beyond reasonable doubt,
which resulted in the acquittal of two other co-accused persons,
namely, Shyamlal and Smt. Babli. Learned counsel for the
appellant invited our attention towards the fact that entire
prosecution case is based upon circumstantial evidence and to
prove the case on the basis circumstantial evidence, the complete
chain of circumstances is required to be proved beyond reasonable
doubt so as to hold accused appellant guilty, but in the instant
case it has not been proved by the prosecution, therefore, accused
appellant is entitled for acquittal.
In the statements recorded under Section 313 Cr.P.C., a
specific plea was taken by the appellant that on the date of
incident, he was not at his home and this fact is proved from the
statement of PW.13, Amritlal, who has deposed in his statement
that on the date of incident as per his instructions, Shyamlal,
made a phone call at the house of accused appellant Ramesh,
which was replied by his wife Ramila (deceased) informing that
Ramesh is not at home. Furthermore, the investigating officer has
filed Challan against the appellant on the basis of recovery of
blood stained shirt from the house of co-accused Babli and one
stick having blood upon the same, from the house of accused
appellant, and to prove the said recovery of articles the
prosecution was under obligation to produce the investigating
officer, Jagannath, who has prepared the recovery memos and
conducted investigation but the investigating officer did not
appear as witness to prove the recovery and entire investigation
conducted by him, therefore, obviously it is a case in which
prosecution has failed to prove the case.
As per contention of the learned counsel for the appellant,
the whole case is based upon circumstantial evidence, collected
during investigation by the Investigating Officer, Mr. Jagannath,
Sub-Inspector, however, prosecution has failed to produce said
witness to prove the recoveries and investigation, therefore, the
finding of conviction recorded by the trial court based upon
circumstantial evidence vide judgment impugned deserves to be
quashed.
Per contra, learned Public Prosecutor submitted that
although the investigating officer Jagannath, Sub-Inspector of
Police Station Rishabhdeo, did not appear before the trial court as
witness to prove the recoveries but other two Motbir witnesses,
namely, PW.11 Amar Singh and PW.12 Kamal Singh, specifically
stated in their statements that at the time of recovery of shirt and
stick, their signatures were obtained by the investigating officer
on Ex.P/13, P/14, P/15 and P/16, therefore, there is no strength in
the argument of learned counsel for the appellant that prosecution
has failed to prove its case beyond reasonable doubt.
Learned Public Prosecutor further argued that although other
two co-accused, Shyamlal and Smt. Babli were acquitted from the
charge levelled against them, but undisputedly the accused
appellant is husband of deceased Smt. Ramila and the dead body
of Smt. Ramila was found in the house of appellant, therefore, it
can be presumed that offence was committed by the appellant
none else. Therefore, this appeal may kindly be dismissed.
After hearing the learned counsel for the parties we have
minutely scanned the entire evidence and find that prosecution
has failed to prove its case beyond reasonable doubt, because
there is no evidence on record to prove the fact that the day on
which the incident took place, the accused appellant was present
in the house or in the village. More so, the written report (Ex.P/1)
was filed by one Dharamchand, in which it was stated that he
(Dharamchand) was informed in the morning on the date of
incident by Smt. Rasi, mother of appellant Ramesh Meena that
today I went to house of her elder son in the morning and saw
that dead body of Smt. Ramila wife of my son, lying on the cot
and blood was spread over the clothes, legs of the deceased, and
on floor of the room, and my son is not at home. Upon receiving
the aforesaid information, witness Dharamchand (PW.1) Sukhlal,
Mangiram, Somaram, Shanker, Harji etc. went to the house of
deceased and saw the dead body.
We have perused the statements of PW.1 Dharmchand and
find that his evidence is hearsay evidence because he has
reported the incident to the police as per information given to him
by Smt. Rasi, mother of appellant. We have also perused the
statement of PW.2 Smt. Rassi, mother of accused appellant, in it
is deposed by her that: -
"VERNACULAR MATTER OMITTED"
The other witness PW4. Manji, has not made any allegation
of bad relationship of accused appellant with deceased Smt.
Ramila. PW.5, Sukhlal, PW.6 Shanker, and PW.8 Ramesh turned
hostile and did not support the prosecution case. In view of above,
obviously it is a case in which the entire prosecution case is based
upon recovery of blood stained shirt and one stick vide Ex.P/15
and Ex.P/13. As per prosecution case, both above documents and
other document of investigation were prepared by Jagannath
S.I./Investigating Officer of Police Station Rishabhdeo, but said
witness did not appear before the court to prove the prosecution
story. It is settled question of law that all the documents of
prosecution should be proved so as to convict any person for
alleged crime. Admittedly it was the duty of the prosecution to
prove all the documents of recoveries to connect the accused
appellant with the crime because no other evidence is on record,
to prove the case. In the case of Sharad Birdhichand Sarda Vs.
State of Maharashtra reported in AIR 1984 SC 1622, the
Hon''ble Apex Court held that the prosecution is required to prove
its case beyond reasonable doubt, if the allegation is based on
circumstantial evidence. The following parameters/ guidelines are
laid down by the Hon''ble Supreme Court to assess the
circumstantial evidence, which reads as under:-
"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (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 ('') 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. These five golden principles, if we may say so, constitute the Panchsheel of the proof of a case based on circumstantial evidence."
We have considered the entire evidence on record in the
light of above golden principles to consider the case on
circumstantial evidence, and also considered the fact that this
case is based upon circumstantial evidence of recovery of shirt
and stick, but admittedly the investigating officer, Jagannath,
Sub-Inspector, who has prepared the recovery memo, has not
been produced before the court to prove the recovery made upon
the information given by the accused appellant. Furthermore, the
other witnesses categorically stated before the court that on the
date of incident, the appellant was not present in the village.
In view of above, we are of the firm opinion that in this case
complete chain of circumstances, has not been proved by the
prosecution beyond reasonable doubt. Therefore, the accused
appellant, who has been convicted on the basis of circumstantial
evidence, is entitled for benefit of doubt.
Consequently, the present criminal appeal is hereby allowed,
the judgment impugned dated 29th of November, 2008 passed by
learned Additional Sessions Judge (FT) No.3, Udaipur Camp
Salumber, Udaipur. in Session Case No.18/2008, convicting and
sentencing the appellant for offence u/s 302 of IPC is hereby
quashed and set aside. The appellant may be released forthwith if
not required in any other case.
Keeping in view, however, the provisions of Section 437A
Cr.P.C. the accused appellants are directed to forthwith furnish
personal bonds in the sum of Rs.20,000/- and a surety bond in
the like amount each, before the learned trial court, which shall be
effective for a period of six months to the effect that in the event
of filing of Special Leave Petition against the judgment or for grant
of leave, the appellants, on receipt of notice thereof, shall appear
before Hon''ble the Supreme Court.