Sukhrati and Others vs State of M.P.

A.K. Shrivastava, J.

Four persons, namely, Harchu S/o Jagannath Lodhi, Sukrati S/o Jhulli Lodhi, Ratiram S/o Heeralal Lodhi and Sovran S/o Ghansu Lodhi were tried for the offences punishable under Sections 302 read with Section 34 of the Indian Penal Code (Hereinafter referred to as ''the IPC). The learned trial Judge by the impugned judgment dated 13th September, 1990 has convicted them and passed sentence for rigorous imprisonment of life. Sukrati, Ratiram and Sovran have assailed the judgment and sentence passed by the learned Trial Judge, by preferring this appeal. However, according to the counsel for the parties, Harchu had not preferred any appeal.

In brief the case of prosecution is that the field of Masalli is adjacent to the field of accused Ratiram. Deceased Mulli, aged about 25 years, was his son. The wife of deceased is Parmi, who is the sister-in-law (Saali) of accused Ratiram. There was some dispute in respect of the land property between Masalli on one hand and Ratiram, Heeralal, on the other, as a result of which there was enmity between the parties. Near about three months prior to the date of incident, on account of dispute of the land, accused Ratiram caused ''Maarpeet'' with deceased Mulli and threats involving dire consequences were given. In counter the deceased also gave threats to kill the accused Ratiram, as a result of which the accused persons, as alleged, got determined to kill the deceased.

Accused Harchu happens to keep ''Mahua'' in the field of deceased, as such, according to the plan cooked by the accused persons, in the night of 21.6.1988, Harchu went to the house of deceased - Mulli and under the pretext of keeping ''Mahua'' accompanied him from his house to the field. At the relevant time, Harchu was carrying a lathi. Mulli was wearing white Baniyan, grey Bushirt, green underwear and white plastic shoes. He was also having a ''Towel'' and a small size ''Kulhari'' (axe). Masalli, Sari and Parmi were present in the house and in their presence accused Harchu accompanied deceased Mulli. On the outer-skirt of the village, Ratiram having lathi, Sukrati having rope met and they also wished to keep Mahua in the field of the deceased and accompanied him. All these accused persons were seen by Durga Lodhi.

According to the prosecution version, when they reached at the field, accused persons quarreled with the deceased, accused Sukrati tied the hands of deceased on his rear side and snatched his axe, gagged his mouth by towel so that he could not scream and thereafter, from the blunt side of the axe caused injuries to the deceased on his forehead, chest and testicular region. Accused Harchu, Sovran and Ratiram caused injuries by lathis on the back, thigh, sole of the foot, as a result of which Mulli became unconsicous. Thereafter accused persons hatched a plan to throw the dead-body in a river and to implement the said plan they were going through Vanpura and Sarkar, where, due to dawn, they left the body of the deceased near a well and fled. In the morning at 6, witness Sajjan and Mahendra saw accused Sukrati, carrying a rope and an axe, accused Harchu, Rati and Sobran, carrying lathis.

PW-1, Dilla, is having his field near the well. He was sleeping in his Granary, when he woke-up and went towards the well to fetch water, he saw the dead-body of one unknown person. Consequently, he informed Sukhsingh, Durgsingh, Ganesh of village Vanpura and they all arrived at the well and saw a dead-body lying there. Thereafter, Dilla along with Sotar Chowkidar went to the police station, Kudila and narrated the incident.

A.S.1. Shri N.D. Verma upon the information supplied by PW-1 Dilla registered the case on 22.6.1988 at marg intimation No. 13/88, and thereafter he arrived at the spot and prepared a ''Panchnama'' witnessed by Sukhlal, Homnath, Baldeo Singh, Bhagwat Singh and Ramcharan. He found that the deceased was wearing white Baniyan, grey shirt, red-square printed torned towel, green under-wear. It was also noticed that deceased was having injuries on the right eye, forehead. Blood was coming out from the testicular region. However, the dead-body could not be identified at that juncture. Near the dead-body torn white plastic shoes were found. The dead-body was sent for post-mortem to Khargapur hospital.

On 23.6.1988 Dr. S.R. Brahman conducted the post-mortem and opined that deceased died on account of rupture of liver. As the dead-body was of unidentified person, the same was handed over to Municipality, Khargapur for cremation. The employees of Municipality performed the cremation. On 23.6.1988 at 7 p.m., A.S.I. Shri N.D. Verma registered the case u/s 302 IPC.

The deceased went along with Harchu in the night of 21.6.88 (Tuesday) and when he did not return on the next day (Wednesday), his parents went in search of him at the field where they could not find the deceased. On the same day, the brother-in-law (sister''s husband) of deceased, namely, Babulal from village Hridaya Nagar came and from him the information was gathered that deceased was present in the field during the night hours but did not return home. On the next day (Thursday), Sarpanch of the village Kotra met Babulal to whom he (Babulal) stated that the deceased was not found. The Sarpanch stated that a dead-body had been found in Vanpura and was kept in Khargapur. Being so informed Babulal proceeded to Khargapur but the dead-body was not found there. On 25.6.1988 again he went to the house of his in-laws and narrated the whole episode to his in-laws, and other inhabitants of the village who came to Police Station Kudila where they saw the bush shirt, shoes and the photographs of the dead-body of the deceased. They identified the articles and photographs. They also disclosed that on account of the land dispute, accused Ratiram harboured an ill-will against Masalli, the father of the deceased and Ratiram had assaulted deceased Mulli, three months prior to the date of incident. Harchu, in the night of Tuesday under the pretext of keeping Mahua in the field asked deceased to accompany him. The Investigating Officer on 26.6.1988 recorded the statements of Masalli, Parmi, Bhaiyalal, Nanna and Salla.

On 28.6.1988 accused Ratiram and Harchu were arrested and they confessed the guilt of murdering the deceased involving accused Sukrati and Sovran. At the instance of accused Harchu in presence of witnesses Nanna and Deendayal, a ''lathi'' was seized from a room. Similarly, at the instance of accused Ratiram, a lathi was seized from the corner of his house. At the instance of accused Sukrati, in a dike near the temple of Hanumanji, an axe and rope were recovered. At the instance of Sovran, a lathi was recovered from a room.

The police after investigation filed the charge-sheet against accused persons u/s 302 read with Section 34 IPC. The Committal Court committed the case to the Court of Session.

The Trial Court, charged accused persons for the offences punishable u/s 302 read with Section 34 IPC which they denied. The defence of accused Harchu was one of alibi. According to him deceased Mulli did not accompany him and on the relevant date, he went to attend the marriage of the son of Ramdeen in village Chhidari. His further plea was he had been falsely implicated. Similarly, defence of other accused persons was also of false implication.

In order to bring home the charges, the prosecution examined as many as 17 witnesses. PW-1, Dilla, is the person who first saw the deceased at dawn and who called the innabitants of the village. He lodged the report in police station. PW-2, Masalli is the father of deceased, PW-3, Sari, is the mother of deceased, PW-4, Parmi, is the wife of deceased. These persons are also the witnesses who had last seen the accused with the deceased. According to them, accused Harchu came to the house and asked deceased Mulli to accompany him for keeping ''Mahua'' in the field. These witnesses also identified article ''A'' an axe and other belongings of the deceased, namely, shoes, Baniyan, shirt etc. PW-5, Babul(sic), is the brother-in-law (sister''s husband of the deceased). PW-6, Salla, is the formal witness to whom mother of deceased had stated that she heard about the death of his son. PW-7, Durg Singh, is the witness to whom PW-1, Dilla, has stated that a dead-body of unknown person is lying near his well, he went to the spot and saw a dead-body lying there. PW-8, Homnath, is a formal witness of the map and seizure of dead-body. PW-9, Ramcharan, is another formal witness of the Panchanama of dead-body. PW-10, Ghanshyam Das, is the Patwari who prepared the map of the spot in presence of Dilla and Durg Singh. PW-11, Constable Dhaniram, is the witness before whom the wearing apparel of deceased were seized. PW-12, Deendayal, is a hostile witness. It appears that prosecution examined this witness so as to prove the arrest memo of accused persons and the seizure of the articles of deceased. PW-13, N.D. Verma, is the investigating officer. PW-14, Durga, was a witness who had seen the accused with the deceased but he turned hositle. It appears that prosecution examined this witness so as to prove the fact of ''last seen'' but this witness has not supported prosecution''s case. PW-15 Gopal Singh, is the witness who conducted the identification test parade of the articles. He is the Sarpanch of the village Kudila. He was examined to prove the memo of identification of the articles. This witness was declared hostile. This witness has not supported the case of prosecution. PW-16, Harishanker Soni, is the Photographer who took the photographs of the dead-body of the deceased. PW-17, Dr. S.R. Brahman, is the Autopsy Surgeon who conducted the post-mortem and opined that deceased died on account of rupture of liver. According to him the death was homicidal.

In the defence, accused Harchu examined Ramdeen as DW-1 and Bhaiyalal as DW-2. These witnesses have been examined so as to materialise his defence of alibi. According to these witnesses, Harchu was involved and enjoying the marriage ceremony of the son of Ramdeen on the relevant date and time. Accused Harchu further examined Balmukund as DW-3 who was the Head Constable of Police Station Kudila. He has stated that a case at Crime No. 46/88 was registered on 23.6.1988 u/s 302 IPC and a copy of that report was sent to J.M.F.C. Tikamgarh on 26.6.1988. There is an endorsement in the register of sending the said report at Serial No. 994. DW-4, Girish Khare, is the clerk of the Court of I.M.F.C. Tikamgarh, he has stated that on 26th April, 1990, a copy Of the report was received from the concerning police station. He has produced the relevant record of the court in that regard.

The Trial Court, on the basis of the evidence stated hereinabove, found that the accused persons did commit the murder and the charges are proved against them, as a result of which he convicted the accused persons and passed the sentence, mentioned hereinabove.

Being aggrieved by the impugned judgment of conviction and sentence, present three appellants, namely Sukrati, Ratiram and Sovran have preferred this appeal. As stated by the counsel for the parties, convicted accused, Harchu, has not preferred any appeal.

Shri S.N. Singh, learned counsel for the appellants submitted that there is no eye-witness in the case and the case of prosecution rests upon circumstantial evidence. According to him, the circumstantial evidence should be consistent with the guilt of the accused and inconsistent with his innocence. The chain of circumstances, furnished by the prosecution, should be so complete, as not to lead any reasonable ground, for the conclusion consistent, with the innocence of the accused. The incriminating circumstances for being used against the accused must be such, as to lead only to a singular hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. According to him, in a case of circumstantial evidence the whole endeavour and effort of the prosecution should be, to prove whether the crime was committed by the accused and the circumstances proved weave and units themselves into a complete chain unerringly pointing to the guilt of the accused and if the circumstances proved, against the accused in a case are not totally consistent with his guilt, he is entitled, to the benefit of doubt. According to the learned counsel, the important links are missing and therefore chain is not complete and the accused/appellant is entitled for acquittal. He had also drawn our attention, to the material discrepancies and omissions, that had come in the statements of the prosecution witnesses. In support of his contention, learned counsel appearing for the appellants placed reliance upon several decisions of the Apex Court.

Smt. Chanchal Sharma, learned Panel Lawyer on the other hand supported the judgment and contended that there being no infirmity in it, the appeal has no merit and deserves to be dismissed.

After hearing learned counsel for the parties, we are of the opinion that the prosecution has failed to prove its case and particularly failed to prove each of the circumstances, having a definite tendency pointing towards guilt of the accused and therefore the appeal deserves to be allowed.

The circumstances which weighed the Trial Court in convicting the appellant may be enumerated as under:

(i) the deceased was last seen in the company of Harchu by the witnesses Masalli, Sari and Parmi;

(ii) article ''B'' the shirt, Articles C-1, C-2 the shoes, Article ''D'' & ''E'' the photographs are of the deceased;

(iii) for accused Ratiram, it is being said that there was a dispute of land between him and deceased Mulli. As such there was motive to have caused murder; secondly a lathi was seized at his instance;

(iv) at the instance of accused Sukrati, an axe of deceased Mulli and one rope was recovered;

(v) at the instance of accused Sovran, a lathi was recovered from him.

The question that arises for consideration is, whether any of the above circumstance can be said to have not been proved and if all the circumstances can be said to have been proved then whether the circumstances, thus, proved are so complete that they point only towards the guilt of the accused and are inconsistent with the hypothesis of his innocence. The Supreme Court in the case of K.V. Chacko @ Kunju Vs. State of Kerala, in para 5 held as under:

The law regarding basing a conviction by the Courts on circumstantial evidence is well settled. When a case rests upon circumstantial evidence, such evidence must satisfy three 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 unerrignly pointing towards the 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. The circumstantial evidence in order to sustain conviction must also be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the quilt of the accused but should be inconsistent with his innocence.

So far as the evidence of last seen is concerned, there is serious infirmity in the testimony of prosecution witnesses. PW-3, Sari, who is the mother of deceased, in her cross-examination has stated that when she came to the house after discharging excreta, she did not find her son Mulli (the deceased), the she was informed by her daughter-in-law Permi that deceased had gone along with the accused Harchu. PW-5, Babulal, has also stated that he was informed by her mother-in-law, PW-3, Sari, that Harchu and deceased went together. The evidence of these witnesses are hearsay. Now the wtnesses remain, of last seen, are PW-2, Masalli, and PW-4, Parmi. On going through the testimony of P W-2, Masalli, who is the father of deceased, nothing transpires that accused Harchu was having any ill-will or enmity with him or with the deceased. It is relevant to mention that except accused Ratiram, this witness has not stated that he or deceased had any enmity with them. PW-4, Parmi, who is the wife of deceased also did not say that there was any enmity between Harchu and the deceased. From the testimony of these two witnesses, it transpires that except Harchu, none of the accused persons were seen last along with deceased, therefore the finding of learned Trial Judge holding that the deceased was seen last along with accused persons, namely, Sukrati, Ratiram and Sovran is based on no evidence. For accused Harchu, these witnesses have stated that he had no ill-will or any kind of animosity either with the deceased or with these witnesses. Moreover, merely because accused Harchu was last seen with the deceased is in itself not sufficient to hold that he did commit the offence of murder. The evidence of last seen may be one of the circumstance but solely on that basis a person can not be convicted. From the circumstances that the appellant was last seen in the company of the deceased, it cannot be inferred that the appellant had committed the crime. It has come in the evidence that appellant often kept Mahua in the field of the deceased. Hence there was nothing unnatural on the part of the appellant being in the company of deceased. (See Prem Thakur Vs. State of Punjab, , Inderjit Singh and another Vs. State of Punjab, ).

Article ''B'', the shirt of the deceased, article C-1 and C-2 his shoes were identified by witnesses Masalli, Sari and Parmi (father, mother and wife of the deceased respectively) in the police station and, therefore, the identification of these articles had no meaning in the eye of law. PW-15, Gopal Singh, is the Sarpanch of village, who had conducted the identification of the shirt and shoes of the deceased but this witness has turned hostile and has not supported the case of prosecution. This witness admits his ignorance of conducting the identification of the shirt and shoes of the deceased. In this view of the matter, identification of the shirt and shoes alleged to have been worn by the deceased is not proved according to law.

The trial court has placed heavy reliance on the recovery of the weapons from the accused persons and on this basis it has been held that they had committed murder of deceased, Mulli. Ex.P-11 is the seizure memo of an axe seized at the instance of accused Sukrati. Ex.P-12 is a seizure memo of lathi alleged to have been seized at the instance of accused Ratiram. Ex.P-13 is the seizure memo of lathi alleged to have been seized at the instance of accused Sovran. Ex.P-14 is the seizure memo of lathi alleged to have been seized at the instance of accused Harchu. These memorandums were prepared in the presence of PW-12, Deendayal and another witness Nanna Chamar. The prosecution, for the reasons best known to them, did not examine Nanna Chamar. The other witness, Deendayal, has turned hostile. He has not supported the case of prosecution and has not proved the recovery of the weapons at the instance of the accused persons. In these circumstances, there raises a serious doubt in respect of the seizure of weapons at the instance of accused persons. Even otherwise, the recovery of weapons at the instance of accused persons is taken to be proved, the chain of circumstantial evidence is still not complete. The only evidence which has been placed relisace upon by the prosecution is that the accused persons were last seen in the company of deceased and the recovery of the weapons. For the accused Ratiram one circumstance of motive may be added as there was some land dispute which had taken place three months prior to the date of incident. In our considered view, these three circumstances are not sufficient to form a complete chain so as to lead only to the singular hypothesis of guilt of the accused reasonably excluding every possibility of their innocence.

Quite apart from the above there is no evidence to the effect that accused Sukrati, Ratiram and Sovran were last seen in the company of deceased. The prosecution has failed to prove any motive against Harchu, Sukrati and Sobran. The recovery of the shirt and the shoes of the deceased, is not proved according to the law.

In the present case, the circumstances are not sufficient to prove that the appellants are guilty. The evidence to the effect that there had been a dispute three months prior to the date of incident with accused Ratiram is also not satisfactorily proved. Apart from this flimsy suspicion, there is no evidence to implicate these appellants in the crime. Had there been any cogent and convincing item of evidence to connect these appellants to the crime, such as blood stained clothes worn by them, it would have been some assistance to prove the guilt of the appellants. The investigating officer could not lay his hands on any such incriminating material. The learned Trial Judge found the appellants guilty on fanciful reasons based purely on conjectures and surmises. He had convicted accused persons on the basis of the scanty, discrepant and fragile evidence. In our considered view the Trial Court committed serious error in appreciating the circumstantial evidence in this case which resulted in mis-carriage of justice. In this context, we may also refer to the recent pronouncement of the Apex Court in Sudama Pandey and Others Vs. State of Bihar, .

Accused Harchu was also tried along with present three appellants, namely, Sukrati, Ratiram and Sovran. However, as informed by the learned counsel for the parties Harchu has not preferred any appeal against his conviction, but as it has been held by us hereinabove that prosecution has failed to prove its case against any of the accused. Therefore, Harchu cannot be left behind the bar as he too is entitled for the same treatment and avail the benefit of the result of the case, as is being provided to the present appellants. The case of Harchu is identical to the case of present appellants and there is no distinguishing feature. In our opinion, for the ends of justice, it will be appropriate that the benefit of our judgment should also be made available to Harchu. For this purpose we get sufficient light from various decision of the Apex Court rendered in the cases of Hari Nath and Another Vs. State of U.P., , Dandu Lakshmi Reddy Vs. State of A.P., and Anil Rai vs. State of Bihar (2001) 7 SCC 318.

In the aforesaid premises, we have no hesitation to come to the conclusion that on the circumstances established, it can not be said, that a charge of murder against the appellants as well as against accused Harchu has been proved beyond reasonable doubt. We, therefore, dislodge the judgment of conviction and order of sentence against the appellants as well as against accused Harchu and acquit them from the charge.

The appeal is allowed. Harchu be setatliberty forthwith unless required in any other case. Other appellants Sukrati, Ratiram and Sovran are on bail. Their bail bonds be discharged.