Setram vs State of M.P. (Now C.G.)

Hon''ble Shri Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 25th of January. 1997 passed in Session Trial No. 481/95 by the Additional Session Judge, Sakti. By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 500/- with default sentence of R.1 for 2 months. The facts, briefly stated, are as under :--

Deceased- Yadram was father of the appellant. The case of the prosecution is that on 18.6.95 at about 1.00 p.m., the appellant committed murder of the deceased in his house by giving repeated tangia blows to the deceased. After commission of murder, when the appellant was running away from his house, he was caught by the villagers namely-Ganpatlal (PW-1 - brother of the appellant), Ramadhar (PW-2), Chandulal (PW-6) and Gangaram (PW-5) near Baradwar railway crossing. At that time, the appellant was holding a tangia having blood stains over it. First Information Report (F.I.R. - Ex. P/1) was lodged by Ganpatlal (PW-1). Inquest (Ex.-P/7) was prepared. Autopsy was conducted by Dr. J. Singh (PW-12) who noticed multiple incised wounds on the dead body of the deceased and opined that the cause of death was shock and haemorrhage on account of wounds sustained by the deceased and the death was homicidal in nature. The post-mortem report is Ex.-P/12. Tangia, which was allegedly seized from the possession of the appellant vide seizure memo Ex.-P/4 was sent for chemical examination, but F.S.L. report could not be filed. There was no eye-witness to the incident. Ganpatlal (PW-1) turned hostile and he did not support the case of the prosecution. The learned Session Judge held that it was proved that Ganpatlal (PW-1) had lodged the F.I.R. (Ex.-P/1) and the appellant was caught red-handed with blood stained tangia at Baradwar railway crossing, therefore, it was proved beyond all reasonable doubt that the appellant firstly committed murder of the deceased and when he was running away, he was caught by the villagers having blood stained tangia in his hands. The appellant was, thus, convicted u/s 302 IPC.

Ms. Seema Singh, learned Counsel appearing on behalf of the appellant, has argued that this is case of no evidence. None of the circumstances have been established by the prosecution; even if it is held that the appellant was caught red-handed with tangia, that would not be an incriminating circumstance because the prosecution could not file F.S.L. report to prove that the tangia was stained with blood much less human blood; the circumstances held to be proved were capable of being explained; therefore, conviction based on such circumstance cannot be sustained.

On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court.

We have heard learned Counsel for the parties at length and have also perused the records of the sessions case.

Admittedly, there is no direct evidence in this case and the case of the prosecution is based on circumstantial evidence. In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have to be fully established and all the circumstances so established should be of conclusive nature and tendency. They must point only towards the guilt of the accused. The circumstances should not be capable of being explained and the chain of the circumstantial evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. This is what the Supreme Court said in many cases. Therefore, we ought to be satisfied that the circumstances on which the prosecution relies leave no option but to hold that the crime imputed to the appellant has been established beyond a reasonable doubt.

Ganpatlal (PW-1) is another son of the deceased. He deposed that on the fateful day at about 7.00 a.m. he left the house. When he returned at about 1.00 p.m., he saw that the room of his father (deceased) was opened and his father was lying dead. The room of his father was in front portion of the house, therefore, he immediately noticed it. He was declared hostile by the Public Prosecutor and was put to cross-examine. Even in the cross-examination, nothing incriminating could be elicited by the Public Prosecutor from this witness except that he had lodged the F.I.R. (Ex.-P/1) which bears his signature.

Ramadhar (PW-2) is village Kotwar. He deposed that on the fateful day, he was present at the betel-shop of Puniram. Chandulal (PW-6) and Gangaram (PW-5) were also present with him. At about 1.30 p.m. Ganpatlal (PW-1) came there and told them that his brother Setram (appellant) is running away after committing murder of his father. Thereafter he saw that the accused was going on along with a tangia. By that time, Gangaram (PW-5) and Chandulal (PW-6) went to the house of the deceased and came back and told him that, in fact, the deceased has been murdered. Gangaram (PW-5) and Chandulal (PW-6) have also deposed in similar fashion.

In appreciation of their evidence, we find that except the evidence that they saw the appellant going along with a tangia, nothing more was admissible because other portions were told to these witnesses by Ganpatlal (PW-1) who turned hostile and even denied the contents of the F.I.R. (Ex.-P/1).

A tangia was seized from the possession of the appellant. According to the prosecution, it was sent for chemical examination as it was carrying blood stains. F.S.L. report relating to the blood stains could not be filed by the prosecution. The learned Session Judge has recorded a finding, in Para-32, that though the F.S.L. report could not be filed, but that itself would not destroy the circumstance that the appellant was holding a tangia just after the incident and it was incriminating against him. We are of the view that the above finding recorded by the Session Judge is not correct. Tangia is a common article which is normally held by the villagers when they go out from their houses. If presence of blood stains was not proved on tangia, the above circumstance would not be incriminating against the appellant.

The learned Session Judge has very much stressed on the contents of the F.I.R. (Ex.-P/1). We have already said that Ganpatlal (PW-1), maker of the F.I.R., has completely turned hostile and has not proved its contents. Moreover, the F.I.R. (Ex.-P/1) is not substantive evidence.

Besides the above, other inmates of the house namely Babli (PW-7 - daughter-in-law of the deceased & wife of PW-1), Nirmala Bai (PW-8-Sister of Babli - PW-7) and Kamla Bai (PW-9 - daughter of the deceased) have also not supported the case of the prosecution and they were declared hostile.

On due consideration of the entire material, we do not find any incriminating circumstance in this matter, on which, the appellant could have been convicted u/s 302 IPC. The conviction of the appellant is based on conjectures and surmises, therefore, the same deserves to be set-aside. Accordingly, the appeal is allowed. The conviction and sentences awarded to the appellant u/s 302 IPC are set-aside. The appellant is acquitted of the charges framed against him. The appellant is on bail. His bail bonds are cancelled and surety stands discharged.