State of Chhattisgarh vs Jonhu and Others

I.M. Quddusi, J.—The present appeal arises out of the judgment and order dated 4th September, 2009, passed by the First Additional Sessions Judge, Mungeli, District -- Bilaspur in Sessions Case No. 13/2009, acquitting the accused/respondents from the charges under sections 302 in alternate 302/34 and 201 of the Indian Penal Code. Brief facts of the case, as per the prosecution story, are that on 1-1-2009 at about 8.00 a.m. deceased Ramji, resident of village - Sarsoha left his home to visit village - Dindori in order to attend last rites (Dashgatra) at the house of Lati Kenvet but he did not reach there. After making various efforts to know the whereabouts of deceased Ramji, ultimately on 9-1-2009 his dead body was found at the bank of Khudia dam. It was found that neck, stomach, left leg and knee of the deceased were wrapped with a plastic rope and there was a cut injury on the head of the deceased. On the intimation given by Mohan Lal to the police Merg Intimation No. 3/09 was registered and thereafter the offence was registered at Crime No. 16/2009.

After conducting the investigation the police filed challan against the accused/respondents. Learned trial Court framed the charges under sections 302, in alternate u/s 302/34 and 201 of the Indian Penal Code against the accused persons and after full fledged trial all the four accused were acquitted of the charges by the impugned judgment.

We have heard learned counsel appearing for the parties and perused the record.

It is evident that in order to prove its case the prosecution has examined Mohan Lal (P.W. 1) younger brother of the deceased, Rajesh Kumar Nishad (P.W. 2) son of the deceased, Bhagwantin (P.W. 3) wife of the deceased, Keher Singh (P.W. 4) seizure and panchnama witness, Radhe Singh (P.W. 5) seizure witness, Sidhva (P.W. 6), Mangal Yadav (P.W. 7), Ganesh Ram Rathore (P.W. 8), Santosh Kumar Baiga (P.W. 9), Sunder Singh (P.W. 10), Ram Prasad (P.W. 11), Shankar Lal Hela (P.W. 12), Dr. G.S. Dau (P.W. 13) doctor, I.R. Sahu (P.W. 14) Constable, Banglahin (P.W. 15) and Tirath Ram Joshi (P.W. 16).

Indisputably, the entire case of the prosecution is based on the circumstantial evidence. We have seen that there is no eye-witness of the incident and there are various notable contradictions and omissions in the statements of the prosecution witnesses and virtually they have not supported the prosecution case. It was stated that the deceased was last seen in the company of accused Jonhu on 1-1-2009 and according to the doctor (P.W. 13), who conducted the post-mortem on 10-1-2009, the death might have occurred 4-5 days prior to the date of post-mortem. It is not known from 1-1-2009 till 9-1-2009 who others had been in the company of the deceased.

The prosecution story is only based on the circumstantial evidence. It is settled principle of law that the chain of happenings should be complete. In the instant case the respondents/accused have been charged on the ground that the deceased was last seen 8 or 9 days before his death with one of the accused persons. It cannot be said that during this 8 to 9 days no other person came in contact with the deceased and only with the presumption that 8 to 9 days before he was seen with one of the accused, it cannot be said that the accused persons have committed the murder of the deceased. Further, no motive was assigned to the accused persons to commit murder of the deceased.

It is well settled that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh Vs. State of Rajasthan, ; Eradu and Others Vs. State of Hyderabad, ;;, Earabhadrappa Vs. State of Karnataka, State of U.P. Vs. Sukhbasi and Others, , Balwinder Singh alias Dalbir Singh Vs. State of Punjab, ; Ashok Kumar Chatterjee Vs. State of M.P., The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

In Bhagat Ram Vs. State of Punjab, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

We may also make a reference to a decision of Hon''ble Apex Court in C. Chenga Reddy and Others Vs. State of Andhra Pradesh, , wherein it has been observed thus:

In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.....

In Padala Veera Reddy Vs. State of Andhra Pradesh and others, , it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) 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; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

In State of U.P. Vs. Ashok Kumar Srivastava, , it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

Sir Alfred Wills in his admirable book "Wills'' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:

(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;

(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;

(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;

(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt,

(5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.

There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the Hon''ble Apex Court as far back as in 1952. In Hanumant Vs. The State of Madhya Pradesh, , it was observed thus:

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

A reference may be made to a later decision of Hon''ble Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, . Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of Hon''ble Apex Court, before conviction could be based on circumstantial evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ''must'' or ''should'' and not ''may be'' established;

(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.

The above aspects were highlighted in various subsequent decisions by Hon''ble Apex Court, such as, State of Rajasthan Vs. Raja Ram, State of Haryana Vs. Jagbir Singh and Another, Kusuma Ankama Rao vs. State of A.P., Criminal Appeal No. 185/2005 disposed of on 7-7-2008 and Manivel and ors. vs. State of Tamil Nadu, Criminal Appeal No. 473 of 2001 disposed of on 8-8-2008.

In view of the position in law highlighted above it cannot be said to be a case where the prosecution has established a complete chain of circumstances which rules out possibility of the involvement of any other person and unerringly points fingers at the accused persons to be the author of the crime. In view of the foregoing, we do not find any justification to interfere with the well reasoned findings recorded by the learned Trial Court. The appeal fails and is dismissed. No order as to costs.