Sukhendra Singh s/o Niranjan Singh Ghosh vs State of Madhya Pradesh

These two appeals (CRA-1084-1994 and CRA-1090-1994)

have been filed against common judgment dated 03.09.1994

passed in Sessions Trial No.68/1991 by the Second Additional

Sessions Judge, Mandla. Hence, both the appeals are heard

together and are decided by this common judgment.

The trial Court held the appellant Rambharose guilty for

commission offence punishable under Section 120-B of IPC and

awarded sentence for life imprisonment. The trial Court also held

appellant-Umabai guilty for commission of offence punishable

under Sections 120-B and 201 of IPC and awarded sentence of

life imprisonment and RI three years respectively alongwith fine

amount of Rs.500/- with default stipulation SI two months. The

trial Court ordered that the sentences shall run concurrently.

Prosecution story in brief is that, deceased Bhawani was

married with appellant Uma Dehariya. She was posted as A.N.M.

Nurse at Kindri. She was living in the house of appellant-

Rambharose. A love relationship developed between appellant-

Rambharose and Uma Dehariya. Husband of Uma Dehariya had

come to Kindri and he came to know that appellant-Uma

Dehariya was having illicit relationship with another co-accused

Rambharose. On the date of incident i.e. on 7.6.1990, Uma

Dehariya was on a tour and the dead body of the deceased was

found in the house. When she returned back from the tour, she

noticed that the deceased (her husband) was died. She made hue

and cry and thereafter, a report of the incident was lodged. In

postmortem examination, it was noticed by the doctor that

deceased received antimortem injuries. Hence, the appellants

were prosecuted for the offence. After investigation, the police

filed a charge-sheet. The appellants abjured their guilt. The trial

Court after appreciation of evidence held the appellants guilty for

commission of the offence and awarded sentence as mentioned in

the judgment.

There is no direct evidence in the case. Conviction of the

appellants is based on circumstantial evidence. PW-1 Chhidami

Lal, who is the Sarpanch of the Panchayat, deposed that appellant

Uma Dehariya was posted as a Nurse at Health Center. She was

married with the deceased. Five days before the incident, the

deceased had come to village Kindri. He was living with

appellant-Uma Dehariya and the relationship between the

appellant-Uma Dehariya and the deceased was cordial. After

death of the deceased, he reached at the house of the appellant

Uma Dehariya. She told him that the deceased was having

ailment, hence, he died. He deposed that he had informed the

police vide Ex.P1 and signed the same. The police prepared the

panchnama, which is Ex.P2 and he signed the same. He also

signed panchnama of the dead body Ex.P3 and talashi panchnama

Ex.P4. Police seized photographs and letters from the residence of

Uma Dehariya vide Ex.P5 and he signed the same. A nylon cord

was seized vide seizure memo Ex.P6 and he signed the same.

There were injuries on the person of the body of the deceased.

PW-2 Sukhram is the villager. He deposed that appellant-

Uma Dehariya was posted as Nurse. She was living in the house

of appellant-Rambharose on rent. He further deposed that he had

seen the deceased dead at around 12 O''clock in the night. He

further deposed that he had signed panchnama Ex.P3, Ex.P4 and

Ex.P7. He denied the fact that appellant Rambharose had given

any statement to the police. However, he admitted his signatures

on Ex.P5, Ex.P8, Ex.P9, Ex.P11, Ex.P12 and Ex.P13.

PW-4 Krishna Kumar Sahu deposed that he had signed

Ex.P2 and Ex.P3. In his cross-examination, he deposed that on

the date of incident Rambharose had gone to Jabalpur and at that

time, deceased was alive.

PW-5 Bhangilal denied the fact that accused Rambharose

had given any statement before him. However, he admitted his

signatures on Ex.P6, Ex.P7, Ex.P8(B), Ex.P9, Ex.P8(1), Ex.P9(A)

Ex.P10, Ex.P11, Ex.P12 and Ex.P13. He further deposed that he

had made signatures on the seizure memos at the police station.

PW-6 Morelal deposed that in the morning when he was

cleaning his teeth, husband of Umabai came there and he wished

''Ram Ram'' to him and in the evening appellant-Nurse Bai cried

and told him that her husband had died. He deposed that he had

seen the dead body of the deceased.

PW-7 Yugal Kishore deposed that he had a Kirana Shop and

in the morning, the deceased came to his shop to purchase a soap.

Thereafter, he returned back. In the after noon, his servant told

him that the deceased had died. At that time, appellant-Umabai

came from Jamgaon.

PW-9 Ramdas deposed that he had come to know from the

villagers that the deceased had died. He had denied the fact that

any incident had taken place before him.

PW-10 Rambai deposed that she knew Uma Bai. She used

to supply water in the house of Nurse and the appellant

Rambharose. She deposed that she had gone to the house of Uma

Bai in the morning to supply water and she had seen the husband

of Uma Bai. She did not talk with him. She was offered tea by

appellant-Uma Bai. On the date of incident, at around 4 O''clock

in the evening she had heard that the husband of Uma Bai had

died.

PW-13 Head Constable Dhooran Mal deposed that he

helped the A.S.I. in investigation of the case.

PW-15 J.L. Barme, who is the Investigating Officer,

deposed that he had recorded the marg intimation, which is

Ex.P26 and after that, he had gone to the place of incident and

had prepared naksha panchayatnama, which is Ex.P3 and signed

the same. Thereafter, dead body was sent to the doctor for

medical examination. He had searched the house of Rambharose

and seized some articles. He recorded memorandum of accused

Rambhorose, which is Ex.P8 and signed the same. He also

recorded memorandum of Shivlal vide Ex.P9 and signed the

same. Thereafter, articles were seized vide seizure memo Ex.P9A,

Ex.P10, Ex.P6, Ex.P11 and Ex.P12 and he signed the same. He

further deposed that he had recorded the statements of the

witnesses namely Chhidamilal, Gorelal, Sukhram, Banshi,

Radhika Bai, Tulsiram, Rambai, Nand, Jugal Kishore, Dileep,

Rajkumar, Jangilal, Dhanwati, Ramprakash and Rajesh.

PW-18 Nandulal deposed that he returned back at around 4

O''clock in the evening and he heard the cry of Uma Bai and at

that time he came to know that the husband of Uma Bai had died.

PW-3 Dr. G.K. Shrivastava, who was posted at Mandla,

deposed that he had conducted postmortem of the deceased and

noticed following injuries on the person of the body of the

deceased:

"VERNACULAR MATTER OMITTED"

He opined that the deceased died due to the injuries. Those

injuries were antemortem in nature.

From the evidence produced by the prosecution, it is

established that the deceased died in the house. However, the time

of death of the deceased has not been confirmed. The appellant-

Uma Bai was living in a rented house of co-accused Rambharose.

The prosecution witnesses deposed that at around 4 O''clock they

heard the cry of appellant-Uma Bai and then they came to know

that her husband (deceased) had died. Uma Bai complained to the

police that she had gone to Jamgaon on a tour and when she

returned back she noticed that her husband had died. In the

morning, she was present in the house. There is no evidence on

record that at the time of the death of the deceased, appellant-

Rambharose and Uma Bai were present in the house. PW-4

Krishna Kumar Sahu deposed that he had seen that on the date of

incident appellant Rambharose had gone to Jabalpur. There is an

evidence that appellant-Rambharose had love relationship with

appellant-Uma Bai. The trial Court has drawn inference that Uma

Bai had love relationship with Rambharose and both of them had

taken a decision to kill the deceased. The trial Court has also

taken into consideration the letter written by the appellant Uma

Bai to the police to the effect that her husband died due to the

ailment and the case be not proceeded. There is evidence that

appellant-Uma Bai had love relationship with Ram Bharose,

however, on this basis, the appellant could not be held guilty for

commission of offence.

The Apex Court in the case of Sharad Birdhichand Sarda

vs State of Maharashtra, (1984) 4 SCC 116 has held as under in

regard to conviction on the basis of circumstantial evidence:

"The following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence:

(1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ''may be'' fully 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 Hon''ble Apex Court has further considered the

aforesaid judgment in the case of Nathiya vs State Represented

Through Inspector of Police, Bagayam, (2016) 10 SCC 208 and

has held as under:

"26. The classic enunciation of the law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable to the decision of this Court in Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116. The relevant excerpts from paragraph 153 of the decision is assuredly apposite: "153...(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused...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. * * * (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." 27. As recently as in Sujit Biswas vs. State of Assam (2013) 12 SCC 406 and Raja @ Rajendra vs. State of Haryaya (2015) 11 SCC 43, it has been propounded that in scrutinizing the circumstantial evidence, a court is required to evaluate it to ensure that the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. It was underlined that whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. That in judging the culpability of the accused, the circumstances adduced when collectively considered, must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime alleged. That the circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused, was emphatically propounded."

The Hon''ble Apex Court further held in the aforesaid

judgment that the prosecution has to prove the case ''must be true''

not ''may be true'' for conviction on a criminal charge. Merely

alleged relationship between the wife of the deceased and her

para-more is not sufficient to prove the fact that deceased was

killed by them due to conspiracy. 20. The Hon''ble Apex Court in the case of Vijay Pandurang

Thakre and others vs State of Maharashtra, (2017) 4 SCC 377

has held as under in regard to conspiracy:

"11.4. In the absence of any evidence of conspiracy, the accused at worst can be held responsible for their individual acts and others against whom there are no specific allegations cannot be held liable as they maybe mere spectators, the incident having been taken place on a public road."

In the present case, the prosecution has proved the fact that

both the appellants had illicit relationship. However, there is no

evidence to prove the fact that they entered into conspiracy to kill

the deceased, except the fact that the dead body was found in the

house. There is evidence that when appellant-Uma Bai came from

tour, she noticed that deceased was dead. Thereafter, she cried and

informed the neighbours. She returned back from tour at around 4

O''clock in the evening. It means that the deceased was died in the

after noon. At the time of death of the deceased, appellant-Uma

Bai was not present in the house. There is no evidence that

another appellant-Rambharose was present in the house. It is a

fact that he was the neighbour of Uma Bai, who was residing in

one portion of his house on rent. Only on the aforesaid basis, it

cannot be presumed that the appellant-Rambharose was present at

the time of incident. Contrary to this, PW-4 Krishna Kumar Sahu

has deposed that Rambharose met him and told him that he was

going to Jabalpur. There is evidence to this effect of the

prosecution witness that the deceased was seen in the house in the

morning. PW-2, who is the witness of memorandum of

Rambharose, turned hostile. He further denied the fact that before

him any cord was seized. He also denied the fact that any copy or

any letter was seized from Uma Dehariya. He simply deposed that

he put his signatures on the seizure memos on the direction of the police. PW-1 Chhidami Lal admitted his signature and proved the

seizure of nylon cord Ex.P6. PW-5 Bhangilal also turned hostile.

He did not support the fact that Rambharose had given any

memorandum to the police. He admitted that some pieces of

newar of palang (bed) was seized before him. However, he

denied the fact that any cord was seized from accused-

Rambharose vide Ex.P6. He was declared hostile.

At best, it can be held that a cord was seized from

Rambharose on the basis of evidence of PW-1. The doctor PW-3,

who performed the postmortem, deposed that the cause of death

was due to injuries suffered by the deceased and various injuries

were found on the person of the body of the deceased. He further

deposed in para 9 of his cross-examination that the death was not

caused due to strangulation. Hence, seizure of nylon cord from

appellant-Rambharose has no meaning. On the aforesaid basis,

presumption cannot be drawn against the appellants under Section

106 of IPC. The trial Court has convicted the appellants on the

basis of the fact that they had illicit relationship and also the fact

that the appellant Uma Bai had written a letter to the police

requesting them to close the case because the deceased was died

due to ailment. In our opinion, it would not be sufficient to

convict the appellants for commission of murder.

The Apex Court in the case of Nathiya (supra) has further

held as under if the accused persons had illicit relationship and

the husband was killed, on the presumption that they had killed

the husband, they may not be convicted:

"20. The competing arguments and the materials on record have received our due scrutiny. It is patent in the present factual setting that there is no eye witness to the occurrence and that the prosecution case is based wholly on circumstantial evidence. The genesis of the suspicion against the appellants, being their amorous association to the anguish disliking of the deceased, he being almost reduced to a helpless entity, having failed to prevent such liaison inspite of his best endeavours. There is indeed some evidence suggestive of such an alliance between the appellants at the relevant point of time. This, per se, in our comprehension, however, cannot be accepted as a decisive incriminating factor to deduce their culpability qua the charge of murder of the deceased Gurunathan."

Consequently, in our opinion, the prosecution has failed to

prove the guilt of the appellants beyond reasonable doubt. Both

the appeals filed by the appellants are hereby allowed. The

appellants are acquitted from the charges and the sentence

awarded by the trial Court is set aside. They are on bail, their bail

bonds are hereby discharged.