Madhya Pradesh High Court
Phoolchand Rathore vs The State Of Madhya Pradesh on 11 December, 2015
Author: R. S. Jha
Bench: Rajendra Mahajan, R. S. Jha
1 Cr.Ref No.2/2015 &
Cr.A No.1292/2015
HIGH COURT OF MADHYA PRADESH AT JABALPUR
CRIMINAL REFERENCE NO.2/2015
IN REFERENCE
Received from District & Sessions Judge,
Anuppur, (M.P.)
Under Section 302 and 201 IPC,
for confirmation of death sentence. Prosecution
Vs.
Phoolchand Rathore,
aged 52 years,
S/o Ramlal Rathore,
R/o Village Seoni, P.S. Jaitahri,
District Anuppur (M.P.) Accused person
CRIMINAL APPEAL NO.1292/2015
Phoolchand Rathore,
aged 52 years,
S/o Ramlal Rathore,
R/o Village Seoni, P.S. Jaitahri,
District Anuppur (M.P.) Accused-Appellant
Vs.
State of M.P.,
through P.S. Jaitahri,
District Anuppur (M.P.) Respondent
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For the appellant : Shri Jagannath Tripathi and
Shri R. S. Rathor, Advocates.
For the respondent/State: Shri Ajay Shukla, Govt. Advocate
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Present : Hon'ble Shri Justice R.S. Jha,
Hon'ble Shri Justice Rajendra Mahajan.JJ
JUDGMENT
( Pronounced on 11/12/2015) The following judgment of the Court was delivered by R. S. Jha, J.
This Criminal Reference No.2/2015 is before this Court against the death penalty dated 7.5.2015 imposed by the District and Sessions Judge, Anuppur in Sessions 2 Cr.Ref No.2/2015 & Cr.A No.1292/2015 Trial No.72/2010 by recording a finding of guilt against the appellant for offences punishable under sections 302 and 201 of the Indian Penal Code (hereinafter referred to as 'the IPC').
2. Criminal Appeal No.1292/2015 has been filed by the appellant being aggrieved by the aforesaid judgment. As both the cases are against the same judgment and involve common issues, they are heard and decided concomitantly.
3. The appellant has been found guilty of offences punishable under section 302 and 201 IPC, for committing the murder of his wife Sundariya Bai and has been sentenced to death.
4. The prosecution case, in brief, is that the appellant was having a very strained relationship with his wife deceased Sundariya Bai on account of the fact that she had gone and deposited her gold and silver ornaments with her sister Jaimatiya Bai, (PW-8), and on that account the appellant used to frequently fight with her and beat her. On 1.2.2010 at around 2.00 P.M the appellant went to the house of Kamla, (PW-2) and fought with Jaimatiya Bai, (PW-8) and told her that he would kill Sundariya Bai and set the house on fire and this incident was told to 3 Cr.Ref No.2/2015 & Cr.A No.1292/2015 Madhuri, (PW-4) daughter of the appellant by Jaimatiya Bai (P.W-8) upon which Madhuri (PW-4), rushed to her house. At around 4.00 P.M. the appellant again started an altercation with his wife Sundariya Bai in the presence of his daughter Madhuri (PW-4), and thereafter told his daughter Madhuri (PW-4), that he would murder her mother and thereafter set the house on fire and when his daughter Madhuri (PW-4) tried to intervene, the appellant threatened to physically assault her and thereafter told the deceased Sundariya Bai that he will forcefully take her to the field and would murder her.
According to the prosecution, at around 7.00 P.M in the evening the appellant forcibly took his wife on the cycle to the agricultural field and while taking her, he told his daughter Madhuri, (PW-4), that he would murder his wife today. Madhuri, (PW-4), pursued the appellant and her mother upto the tank but the appellant forced her to go back. While the appellant was taking deceased Sundariya Bai to the field, Ganga Bai, (P.W-1), saw them and at that time the appellant was telling his wife deceased Sundariya Bai that he would murder her. Madhuri (PW-4) also met Ganga Bai (P.W-1) and Sushila Bai (P.W-12) near the tank and narrated the entire incident to them.
4 Cr.Ref No.2/2015 &Cr.A No.1292/2015
The prosecution story is that Madhuri (PW-4), on returning home telephoned her maternal uncle Kamla (PW-2) and narrated the entire incident. Kamla (PW-2) and Mathura Prasad (PW-3), thereafter came to the house of the accused appellant but did not find him and, therefore, both of them went in search of the appellant and the deceased Sundariya Bai whereupon they found Sundariya Bai lying between the railway tracks in an extremely injured state. They thereafter took her to the hospital but she died enroute.
Kamla (P.W-2) lodged a Marg intimation at Police Station Jaithari pursuant to which Marg No.7/2010 was registered and the body was sent for postmortem. On 2.2.2010 the appellant was arrested and several incriminating items like blood stained clothes and 3 blood stained stones were seized from him and the criminal law was set in motion.
5. The prosecution, in support of its case, produced Exhibit P-1 Police Case Diary Statement of Ganga Bai (PW-1), Exhibit P-2 Morgue intimation, Exhibit P-3 First Information Report lodged by P.W-2 Kamla, Exhibit P-6 Spot Map, Exhibit P-7 Seizure Memo, Exhibit P-8 Postmortem Report, Exhibit P-9 Memo of the accused, Exhibit P-10 Seizure Memo, Exhibit P-11 Arrest Memo, 5 Cr.Ref No.2/2015 & Cr.A No.1292/2015 Exhibit P-12 Property Seizure Memo, Exhibits P-22 to 31 Photographs of the deceased, Exhibit P-32 Police Case Diary Statement of Kamal Singh Rathore (PW-2), Exhibit P-35 FSL Report and Exhibit P-38 Police Case Diary Statement of Ku. Madhuri Rathore (PW-4) amongst other documents. The prosecution also examined as many as 12 witnesses.
6. Dr. Sunil Khanna (PW-5) was examined by the prosecution in respect of the postmortem report, Exhibit P-8, according to which deceased Sundariya Bai had suffered 9 injuries on the face and head, all of which were lacerated wounds and were flesh deep, that is, there was no fracture or injury to the underlying bones. The first three injuries were on the cheek while the fourth injury was on the upper lip and the fifth injury was on the chin. Injury No.6 was on the forehead and injury no.7 was on the lobe of the right ear. Injury no.8 was on the back side of the head while injury no.9 was in the temporal region. According to the postmortem report, no other injury was found on any other part of the body. According to Dr. Sunil Khanna (PW-5), death was within 24 hours of conducting the postmortem and that the death had occurred on account of the head injuries 6 Cr.Ref No.2/2015 & Cr.A No.1292/2015 leading to excessive haemorrage causing shock and cardio respiratory failure.
Surprisingly, no opinion as to whether the death was homicidal or otherwise was expressed or given by Dr. Sunil Khanna (PW-5).
7. Admittedly, there is no eye witness or direct evidence in the case, however, the trial court has held that the prosecution has proved the guilt of the appellant beyond reasonable doubt on the basis of circumstantial evidence on record and the extra-judicial confession said to have been made by the appellant to Madhuri, (PW-4) whose evidence has been held to be unimpeachable and of sterling quality by the trial court. The trial court has made the statement of Madhuri (PW-
4) the main basis of its conclusion as is apparent from a perusal of para 30 of its judgment. By relying upon the statement of Madhuri (PW-4) the trial court has recorded a finding to the effect that the appellant was extremely angry and agitated on account of the fact that his wife deceased Sundariya Bai had kept her jewellery with her sister Jaimatiya Bai (PW-8) and for that reason he used to repeatedly fight with her, beat her and threaten her. Again on the basis of the statement of Madhuri (PW-4) the trial court in para-41 has recorded a finding to the 7 Cr.Ref No.2/2015 & Cr.A No.1292/2015 effect that Madhuri (PW-4) had seen the accused appellant abusing her mother deceased Sundariya Bai and thereafter beating her and forcibly taking her on his cycle and that the deceased Sundariya Bai did not return back and was last seen alive with the appellant while he was taking her on the cycle to his field. The trial court had also recorded a finding that thereafter the deceased Sundariya Bai was found in a nearly lifeless state between the railway tracks two hours thereafter with several injuries on her face and head. The trial court has also recorded a finding that the accused appellant made an extra-judicial confession before his daughter Madhuri (PW-4) regarding the commission of the crime and that he was thereafter arrested and blood stains were found on his clothes for which no explanation has been furnished. On the basis of the statement of Madhuri (PW-4) the trial court has held that the accused appellant has made an extra-judicial confession before Madhuri (PW-4) regarding commission of the crime and that in view of the chain of circumstances proved by the prosecution there was no other conclusion possible other than the guilt of the appellant. The trial court, in para-42 of its judgment, has held that the accused appellant with an intent to commit the murder of the deceased 8 Cr.Ref No.2/2015 & Cr.A No.1292/2015 Sundariya Bai forcible took her on the cycle to the railway tracks and thereafter struck her head repeatedly against the gravels/metal stones (gitti) lying between the railway tracks and continued to do so till she became lifeless and that on account of the aforesaid injuries sustained by the deceased Sundariya Bai, she died.
8. It is pertinent to note that though the trial court in para-33 of its judgment has found several omissions between the statement of Madhuri (PW-4), Exhibit P-38 recorded under section 161 of the Code of Criminal Procedure and in her statement made in court and has also stated that there are several lacunas in her evidence in para-44 of its judgment, inspite of which the trial court has based the conviction on her statement on account of the fact that Madhuri (PW-4), inspite of being the daughter of the accused appellant and the deceased Sundariya Bai, has deposed against her father and has, therefore, relied upon the statement on the ground of natural justice (Prakratik Nyay), social responsibilities and public opinion and has gone on to recommend to the State Government to reward Madhuri (PW-4) for her contribution in the case.
9. In paras 46 to 48 of its judgment the trial court has 9 Cr.Ref No.2/2015 & Cr.A No.1292/2015 held that it would be failing in its constitutional duties if it fails to impose the harshest of the harsh punishment upon the accused appellant for having committed the heinous crime of committing the pre-meditated murder of his wife and if a lenient sentence is imposed upon the accused appellant, it would send a wrong message to the public. The court has held that the present case is one of the rarest of the rare cases and has, therefore, punished the accused appellant with the extreme penalty of death.
10. The learned counsel for the appellant has stated that the judgment of the trial court suffers from several lacunas. He submits that the trial court has committed a grave error in blindly relying upon the statement of Madhuri (P.W.4) for convicting the appellant inspite of recording the fact that there were several discrepancies and omissions in her statement. It is submitted that the present case is one of circumstantial evidence only and therefore the court below should have been extremely circumspect in accepting the alleged extra-judicial confession made by the appellant in front of Madhuri (P.W.4) specifically keeping in mind the fact that her statement was not corroborated and in fact does not find support from the statement of any other witness. It is 10 Cr.Ref No.2/2015 & Cr.A No.1292/2015 submitted that the court below has grossly erred in accepting the absurd preposition of the prosecution to the effect that the appellant, before committing the crime, went about announcing his intention to do so before three witnesses namely, his sister-in-law Jaimatiya Bai (PW-8), his son Shankar, who has not been examined and Madhuri (PW-4) his daughter. It is stated that no person who is capable of committing a pre-meditated murder would ever go about announcing his intention to do so in public. It is submitted by the learned counsel for the appellant that the accused appellant has been framed on account of the fact that he was not maintaining very good relations with his in-laws i.e. the relatives of his wife deceased Sundariya Bai which is evident from the fact that all the persons who have deposed against the appellant are from his in-laws side, i.e. his brother-in-law Kamal (PW-2) and his sister-in-law Jaimatiya Bai (PW-8) and that his daughter Madhuri (PW-4) is apparently under the influence of her maternal uncle Kamal (PW-2). It is stated that this is also evident from the fact that the prosecution has not examined any witnesses belonging to the appellant's side of the family namely, his brother and other relatives who were his neighbours and resided nearby or any of the residents of the locality or neighbourhood. 11 Cr.Ref No.2/2015 & Cr.A No.1292/2015
11. The learned counsel for the appellant submits that in the present case the trial court has held that the appellant was constantly fighting and beating up his wife on account of the fact that he was angry with her but in support of the said story the prosecution has failed to examine the third daughter of the accused appellant who used to stay in the same house or his son Shanker nor has the prosecution examined any of the neighbours or other relatives who resided nearby and who were the best witnesses available to them. It is submitted that in the facts and circumstances of the case this is a fatal flaw in the prosecution case which has been totally ignored by the court below.
12. The learned counsel for the appellant submits that the court below has grossly erred in blindly relying upon the statement of Madhuri (PW-4) inspite of the fact that her statement is apparently exaggerated and suffers from several omissions and contradictions namely; (a) that her story regarding fighting between the appellant and the deceased Sundariya Bai on account of the fact that she had kept her jewellery with her sister Jaimatiya Bai (PW-8) is negatived and is not established in view of the statement of Jaimatiya Bai (PW-8) herself; (b) that 12 Cr.Ref No.2/2015 & Cr.A No.1292/2015 her statement that the accused used to constantly fight and beat the deceased Sundariya Bai has not been proved by examining her younger sister who used to stay in the same house or her younger brother Shanker or her uncle, brother of the accused appellant and other relatives and neighbours who used to reside in the locality; (c) that her story that the accused appellant forcibly took the deceased Sundariya Bai on the cycle to the field and while doing so he was seen by Ganga Bai (PW-1) and Sushila (PW-12) has not been supported by Ganga Bai (PW-1) and Sushila (PW-12); (d) that her statement to the effect that the accused appellant after committing the murder of his wife came home wearing bloodstained clothes, went to the cattle shed (Saar), hid his clothes in the cattle shed (Saar) and thereafter washed his clothes on the next morning and dried them on the roof, is contradicted by her own statement wherein she has stated that her father was apprehended on the same night that the crime was committed; (e) that Madhuri (PW-4) in para 9 of her statement has stated that her father hid his bloodstained clothes in the cattle shed (Saar) whereas the seizure memo indicates that the clothes were seized from the hut in the field which belongs to the accused appellant and not from the 13 Cr.Ref No.2/2015 & Cr.A No.1292/2015 cattle shed (Saar); (f) her conduct in going to give her examination on the day of the funeral of her mother deceased Sundariya Bai and not attending the funeral is highly unnatural.
13. The learned counsel for the appellant further submits that a perusal of the statement of Jai Matiya Bai (PW-8) clearly establishes the fact that she had already returned the jewellery to the deceased Sundariya Bai eight days prior to the incident and therefore the very cause and motive attributed to the accused appellant for committing the murder of his wife does not exit. It is submitted that in the present case which is based on circumstantial evidence failure of the prosecution to establish motive assumes importance. It is submitted by the learned counsel for the appellant that the spot map, the position of the body at the railway track and the clothes of the deceased which have all been produced by the prosecution in support of their case indicate that a struggle took place between the deceased Sundariya Bai and the assailant, however, no injury whatsoever has been found on the body of the deceased Sundariya Bai except on the face and head and that the appellant has not been medically examined by the prosecution to 14 Cr.Ref No.2/2015 & Cr.A No.1292/2015 establish the same and therefore this lacuna in the prosecution case is fatal.
14. The learned counsel for the respondent/State, on the other hand, supported the prosecution case and submits that the prosecution case is based on circumstantial evidence in which the prosecution has clearly proved and established the entire chain of events which lead to the inevitable conclusion regarding the guilt of the appellant. The learned counsel for the respondent/State submits that the prosecution has proved beyond any reasonable doubt that (a) the appellant used to fight with his wife deceased Sundariya Bai on account of the fact that she had kept her jewellery with her sister Jaimatiya Bai (PW-8); (b) that on the fateful day he had told Jaimatiya Bai (PW-8), Madhuri (PW-4) as well as Ganga Bai (PW-1) and Sushila (PW-12) that he was going to commit the murder of his wife; (c) that he has made an extra-judicial confession of having murdered his wife Sundariya Bai to his daughter Madhuri (PW-4) who has clearly said so in her evidence;
(d) that deceased Sundariya Bai was last seen with the appellant when he was forcibly taking her to his field and was thereafter found in a dying state between the 15 Cr.Ref No.2/2015 & Cr.A No.1292/2015 railway tracks; (e) that the blood stained clothes and the incriminating bloodstained stones have been recovered from the accused appellant on his memorandum/disclosure statement; and (f) that the chain of circumstances leading to the inevitable conclusion of guilt has been proved beyond doubt by the prosecution.
15. Having heard the learned counsel for the parties and having perused the record it is evident that in the present case there is no eye witness or direct evidence in relation to the commission of crime and that according to the prosecution there is an extra-judicial confession by the accused appellant regarding commission of the murder of deceased Sundariya Bai before his daughter Madhuri (PW-4) and therefore in the circumstances it is necessary to examine the law regarding consideration of circumstantial evidence, extra-judicial confession, motive, etc.
16. In the case of Hanumant Govind Nargundkar and another vs. State of M.P., AIR 1952 SC 343, the Supreme Court while dealing with the manner in which circumstantial evidence was to be construed, has held as under in para-10:-
16 Cr.Ref No.2/2015 &Cr.A No.1292/2015
"10. ....In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson, to the jury in Reg v. Hodge ((1838) 2 Lew. 227), where he said :-
"The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
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 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 17 Cr.Ref No.2/2015 & Cr.A No.1292/2015 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...."
17. In the case of M. G. Agarwal And Another vs. State of Maharashtra, AIR 1963 SC 200, the Supreme Court has held as under:-
"18. ...It is a well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. There is no doubt or dispute about this position. But in applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on 18 Cr.Ref No.2/2015 & Cr.A No.1292/2015 the other. In regard to the proof of basic or primary facts the Court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. It is in the light of this legal position that the evidence in the present case has to be appreciated."
18. In yet another decision, in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, 1984 (4) SCC 116, the Supreme Court has set out the five basic cardinal principles that are required to be satisfied while basing a conviction on circumstantial evidence. This and other judgments on this issue have been considered in the case of Vilas Pandurang Patil vs. 19 Cr.Ref No.2/2015 & Cr.A No.1292/2015 State of Maharashtra, (2004) 6 SCC 158, by the Supreme Court and the law in this regard has been summarized as under:-
"9. Before analysing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue which taken together form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
10. It has been consistently laid down by this Court 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 v. State of 20 Cr.Ref No.2/2015 & Cr.A No.1292/2015 Rajasthan (AIR 1977 SC 1063), Eradu v. State of Hyderabad (AIR 1956 SC 316), Earabhadrappa v. State of Karnataka (AIR 1983 SC 446), State of U.P. v. Sukhbasi (AIR 1985 SC 1224), Balwinder Singh v. State of Punjab (AIR 1987 SC 350) and Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). 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 v. State of Punjab (AIR 1954 SC 621) 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 home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. (1996 (10) SCC 193), wherein it has been observed thus :
"21. 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 21 Cr.Ref No.2/2015 & Cr.A No.1292/2015 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."
12. In Padala Veera Reddy v. State of A.P. (AIR 1990 SC 79) it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"10.(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 22 Cr.Ref No.2/2015 & Cr.A No.1292/2015 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."
13. In State of U.P. v. Ashok Kumar Srivastava (1992 Cri.LJ 1104) 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.
14. 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 23 Cr.Ref No.2/2015 & Cr.A No.1292/2015 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; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.
16. In Hanumant Govind Nargundkar v.
State of M.P. (AIR 1952 SC 343) 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 in the first instance be fully established, and all the facts so established should be consistent 24 Cr.Ref No.2/2015 & Cr.A No.1292/2015 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."
17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this 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 25 Cr.Ref No.2/2015 & Cr.A No.1292/2015 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."
19. Similar view has been taken by the Supreme Court in the case of Arvind Kumar Anupalal Poddar vs. State of Maharashtra, (2012) 11 SCC 172. In the case of Raj Kumar Singh Alias Raju Alias Batya vs. State of Rajasthan, (2013) 5 SCC 722, the Supreme Court while again reiterating the same principles has, in addition, held that suspicion cannot take place of proof 26 Cr.Ref No.2/2015 & Cr.A No.1292/2015 as there is a large difference between may be and must be in the following terms in para 21 as under:-
"21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is 27 Cr.Ref No.2/2015 & Cr.A No.1292/2015 avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; Shivaji Sahabrao Bobade & Anr. v. State of Mahrashtra, AIR 1973 SC 2622;
Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; Subhash Chand v. State of Rajasthan, (2002) 1 SCC 702; Ashish Batham v. State of M.P., AIR 2002 SC 3206; Narendra Singh & Anr. v. State of M.P., AIR 2004 SC 3249; State through CBI v. Mahendra Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979)."
20. From a reading of the aforesaid decisions of the Supreme Court it is clear that it is the basic principle of criminal law that an accused is presumed to be innocent until proven guilty and, therefore, in cases of circumstantial evidence it is necessary for the prosecution to prove each fact which forms a chain of evidence so complete which leads to the inevitable and sole conclusion of guilt of the accused. In cases of circumstantial evidence the facts established by the 28 Cr.Ref No.2/2015 & Cr.A No.1292/2015 prosecution should be consistent only with the hypothesis of guilt of the accused and should not indicate the possibility of any other conclusion. It has been further held that in criminal cases the court has a duty to ensure that mere suspicion or conjectures would not take the place of legal proof and the prosecution has to produce clear, cogent and unimpeachable evidence which leads to the sole conclusion of guilt of the accused.
21. The law in respect of extra-judicial confession of an accused has also been elaborately dealt with by the Supreme Court in a number of cases as well as in the case of Ratan Gond vs. The State of Bihar, AIR 1959 SC 18, wherein it has been held that as a matter of caution the courts require material corroboration to prove an extra-judicial confession in the following terms:-
"8. ....The appellant denied at a later stage that he had made a confession, but it is not necessary to consider in this case the abstract question as to whether, as against its maker, a conviction can be based on a confession which is found to be voluntary and true. It is enough to state that usually and as a matter of caution, courts require some material corroboration to such a confessional 29 Cr.Ref No.2/2015 & Cr.A No.1292/2015 statement, corroboration which connects the accused person with the crime in question, and the real question which falls for decision in the present case is if the circumstances proved against the appellant afford sufficient corroboration to the confessional statement of the appellant, in case we hold that the confessional statement is voluntary and true."
22. In the case of Wakil Nayak vs. State of Bihar, 1971 (3) SCC 778, the Supreme Court has held as under:-
" Before the Court can act on extra- judicial confession the circumstances under which the confession is made, the manner in which it is made, the persons to whom it is made will be considered along with two rules of caution. First, whether the evidence of confession is reliable and secondly whether it finds corroboration."
23. In the case of Maghar Singh vs. State of Punjab, (1975) 4 SCC 234, the Supreme Court has observed that if the court believes the witnesses before whom the confession is made and it is satisfied that the confession was voluntary then in such cases the confession can be founded on such evidence alone.
30 Cr.Ref No.2/2015 &Cr.A No.1292/2015
24. In subsequent decisions, the Supreme Court has held that where a prosecution is based on extra-judicial confession corroborated only by circumstantial evidence then the court must treat the same with utmost caution and that the evidentiary value of the extra-judicial confession must be judged in the facts and circumstances of each individual case. It has further been held that an extra-judicial confession, if voluntarily made and if it is fully consistent with the circumstantial evidence which is established by the prosecution then it can be relied upon by the courts alongwith other evidences for convicting an accused in the case of S. Arun Raja vs. State of Tamil Nadu, 2010 (8) SCC 233, in the following terms in para-48 to 55:-
"48. The concept of an extra-judicial confession is primarily a judicial creation, and must be used with restraint. Such a confession must be used only in limited circumstances, and should also be corroborated by way of abundant caution. This Court in Ram Singh v. Sonia, (2007) 3 SCC 1, has held that an extra-judicial confession while in police custody cannot be allowed. Moreover, when there is a case hanging on an extra-judicial confession, corroborated only by circumstantial evidence, then the Courts must treat the same with 31 Cr.Ref No.2/2015 & Cr.A No.1292/2015 utmost caution. This principle has been affirmed by this Court in Ediga Anamma v. State of AP, (1974) 4 SCC 443 and State of Maharashtra v. Kondiba Tukaram Shirke, (1976) 3 SCC 775. It is significant to observe that A1 has subsequently sought to retract this statement upon his arrival in Tamil Nadu.
49. In Maghar Singh v. State of Punjab (1975) 4 SCC 234, while dealing with the question of extra-judicial confession, this Court held as follows:-
"5. ...If the Court believes the witnesses before whom the confession is made and it is satisfied that the confession was voluntary, then in such a case conviction can be founded on such evidence alone as was done in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322, where their Lordships of the Supreme Court rested the conviction of the accused on the extra-judicial confession made by him before two independent witnesses, namely, Gadkari and Perulakar. In the instant case also, after perusing the evidence of PW 3 and PW 12 we are satisfied that they are independent witnesses before whom both the appellant and accused Surjit Kaur made confession 32 Cr.Ref No.2/2015 & Cr.A No.1292/2015 of their guilt and this therefore forms a very important link in the chain of circumstantial evidence. In our opinion the argument proceeds on fundamentally wrong premises that the extra-judicial confession is tainted evidence."
50. The evidentiary value of the extra-judicial confession must be judged in the facts and circumstances of each individual case. Extra- judicial confession, if voluntarily made and fully consistent with the circumstantial evidence, no doubt, establishes the guilt of the accused. The extra-judicial confession, if voluntary, can be relied upon by the court along with other evidence in convicting the accused. However, the extra-judicial confession cannot ipso facto be termed to be tainted. An extra-judicial confession, if made voluntarily and proved, can be relied upon by the Courts.
51. This Court in State of A.P. v. S. Swarnalatha & Others, reported in (2009) 8 SCC 383, held as follows:-
"16. ...Extra-judicial confession as is well known is a weak piece of evidence, although in given situations reliance thereupon can be placed. (See. State of U.P. v. M.K. Anthony, (1985) 1 SCC 505, 33 Cr.Ref No.2/2015 & Cr.A No.1292/2015 para 15 and State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254, para 14.)"
52. In Pakkirisamy v. State of T.N. (1997) 8 SCC 158, this Court held:-
"8. ...It is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession. It is no doubt true that extra-judicial confession by its very nature is rather a weak type of evidence and it is for this reason that a duty is cast upon the court to look for corroboration from other reliable evidence on record. Such evidence requires appreciation with a great deal of care and caution. If such an extra-judicial confession is surrounded by suspicious circumstances, needless to state that its credibility becomes doubtful and consequently it loses its importance. The same principle has been enunciated by this Court in Balwinder Singh v. State of Punjab (1987) 1 SCC 1 ..."34 Cr.Ref No.2/2015 & Cr.A No.1292/2015
53. This Court in State of A.P. v. Kanda Gopaludu (2005) 13 SCC 116, held that extra- judicial confession is admissible if it inspired confidence and made voluntarily.
54. This Court in Kavita v. State of T.N. (1998) 6 SCC 108, held as follows:-
"4. There is no doubt that convictions can be based on extra-
judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the court to decide on the acceptability of the evidence having regard to the credibility of the witnesses."
55. In view of the above case law, it is made clear that an extra-judicial confession is a weak piece of evidence. Though it can be made the basis of conviction, due care and caution must be exercised by the Courts to ascertain the truthfulness of the confession. Rules of caution must be applied before accepting an extra-judicial confession. Before 35 Cr.Ref No.2/2015 & Cr.A No.1292/2015 the Court proceeds to act on the basis of an extra-judicial confession, the circumstances under which it is made, the manner in which it is made and the persons to whom it is made must be considered along with the two rules of caution. First, whether the evidence of confession is reliable and second, whether it finds corroboration."
25. This proposition has further been explained and expanded by the Supreme Court in the case of Jagroop Singh vs. State of Punjab, (2012) 11 SCC 768 in paras 28 to 30 as under:-
"28. The second circumstance pertains to extra-judicial confession. Mr. Goel, learned counsel for the appellant, has vehemently criticized the extra-judicial confession on the ground that such confession was made after 18 days of the occurrence. That apart, it is submitted that the father of Natha Singh and grand-father of the deceased are real brothers and, therefore, he is an interested witness and to overcome the same, he has deposed in Court that he has strained relationship with the informant, though he had not stated so in the statement recorded under Section 161 of Cr.PC.
29. The issue that emanates for appreciation is whether such confessional statement should be given any credence or thrown 36 Cr.Ref No.2/2015 & Cr.A No.1292/2015 overboard. In this context, we may refer with profit to the authority in Gura Singh v. State of Rajasthan (2001) 2 SCC 205, wherein, after referring to the decisions in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, (AIR 1954 SC 322), Maghar Singh v. State of Punjab, (1975) 4 SCC 234, Narayan Siingh V. State of M.P. (1985) 4 SCC 26, Kishore Chand v. State of H.P., (1991) 1 SCC 286 and Baldev Raj v.
State of Haryana, (1991) Supp. (1) SCC 14, it has been opined that it is the settled position of law that extra judicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and his evidence is credible. The evidence in the form of extra-judicial confession made by the accused before the witness cannot be always termed to be tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that it was true and voluntarily made, then the conviction can be founded on such evidence alone. The aspects which have to be taken care of are the nature of the 37 Cr.Ref No.2/2015 & Cr.A No.1292/2015 circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. That apart, before relying on the confession, the court has to be satisfied that it is voluntary and it is not the result of inducement, threat or promise as envisaged under Section 24 of the Act or brought about in suspicious circumstances to circumvent Sections 25 and
26.
30. Recently, in Sahadevan & Another v. State of Tamil Nadu[2012) 6 SCC 403, after referring to the rulings in S.k. Yusuf v. State of W.B.(2011) 11 SCC 754 and Pancho v. State of Haryana(2011) 10 SCC 165], a two-Judge Bench has laid down that the extra-judicial confession is a weak evidence by itself and it has to be examined by the court with greater care and caution; that it should be made voluntarily and should be truthful; that it should inspire confidence; that an extra- judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence; that for an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; and that such statement essentially has to be proved like any other fact and in accordance with law. "
38 Cr.Ref No.2/2015 &Cr.A No.1292/2015
26. Recently, in the case of Baskaran and another vs. State of Tamil Nadu, (2014) 5 SCC 765, the Supreme Court has again reiterated the law that an extra-judicial confession can be relied upon only if it has been made voluntarily and is made in a fit state of mind to a witness whose statement is unimpeachable and reliable and is supported by other circumstantial evidence and is corroborated by independent witnesses in the following terms:-
"17. It is no doubt true that this Court time and again has held that an extra-judicial confession can be relied upon only if the same is voluntary and true and made in a fit state of mind. The value of the evidence as to the confession like any other evidence depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. But it is not open to any court to start with the presumption that extra-judicial confession is insufficient to convict the accused even though it is supported by the other circumstantial evidence and corroborated by independent witness which is the position in the instant case. The Courts cannot be unmindful of the legal position that even if the evidence relating to extra-judicial 39 Cr.Ref No.2/2015 & Cr.A No.1292/2015 confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction."
27. The Supreme Court in several decisions has also held that in cases of circumstantial evidence motive assumes importance except in cases where the prosecution is able to prove and establish beyond doubt the entire chain of events which leads to the inevitable conclusion of the guilt of the accused. The aforesaid law has been laid down by the Supreme Court in the cases of Tanviben Pankajkumar Divetia vs. State of Gujarat, (1997) 7 SCC 156, Uday Kumar vs. State of Karnataka, (1998) 7 SCC 478 and Mani Kumar Thapa vs. State of Sikkim, 2002 (7) SCC 157.
28. In the light of the law laid down by the Supreme Court in the aforesaid cases, we now proceed to examine the oral and documentary evidence on record. As the court below has based its conclusion and has held the appellant guilty mainly on the basis of the evidence of Madhuri (PW-4) it would be appropriate to examine her evidence in detail.
40 Cr.Ref No.2/2015 &Cr.A No.1292/2015
29. A perusal of the statement of Madhuri (PW-4) indicates that she has clearly stated that her parents used to fight regularly on account of the fact that her mother had kept her jewellery with her maternal aunt Jaimataiya Bai (PW-8). She has stated that on the fateful day she had gone to give an examination for which she had gone to her maternal uncle's house. She has stated that while she was at her maternal uncle's house her aunt Jaimataiya Bai (PW-8) told her that her father had come in the afternoon and had said that he would murder her mother, the deceased Sundariya Bai, and would burn the house. She has stated that when she went back at about 4.00 P.M to her house she found her parents fighting and when she tried to intervene her father, the accused appellant, threatened to beat her up. She has stated that thereafter her mother went towards the 'baadi' (irrigation pond) but was followed by her father who brought her back and forced her to accompany him to the field.. She has stated that her mother protested but her father forced her to accompany him and thereafter forcibly made her sit on the cycle and took her to the field. She has stated that she ran after her mother and father but the accused appellant forced her to go back. She stated that she 41 Cr.Ref No.2/2015 & Cr.A No.1292/2015 again went to the tank which is on the way to the field where she met her paternal aunt Sushila (PW-12) and narrated the entire incident to her. She has thereafter stated that she returned home and phoned her maternal uncle Kamal (PW-2) who came to their house and went to search for her mother. She has stated that her father thereafter returned and told her that he had murdered her mother and had left her body on the railway track. She has stated that thereafter her maternal uncle, his servant Mathura (PW-3) and his son Ashok (PW-10) went to search for Sundariya Bai who was found lying between the railway track in an extremely injured state. She has stated that her maternal uncle Kamal (PW-2) thereafter called the police and took her mother to the hospital but she succumbed to her injuries enroute. She has stated that thereafter when her father returned home she had asked him what he had done with her mother to which he stated that he had murdered her.
30. In her cross-examination this witness has stated that the jewellery that her mother had kept with her aunt Jaimatiya Bai (PW-8) had been returned eight days prior to the incident. She has stated that on the date of the incident she had an examination for which she had gone 42 Cr.Ref No.2/2015 & Cr.A No.1292/2015 to her maternal uncle's house. She has stated that inspite of the fact that her mother had been murdered and her father had been arrested she did not attend her mother's funeral the next day as she had gone to give her examination as her teacher had told her that she would be treated as a private student in case she did not appear in the examination. She has, however, gone on to state that she had not informed the school authority about the incident of her mother and that she did participate in the subsequent examinations. In para-4 of her cross-examination she has clarified that she does not know as to whether the jewellery had already been returned by Jaimataiya Bai (PW-8) to her mother. She has also admitted that she had not heard the fight between her aunt Jaimataiya Bai (PW-8) and her father when her aunt came to return the jewellery. She has stated that she had seen that her aunt Jaimataiya Bai and her husband had gone back home without having food at their house though her mother had insisted for the same and that as a result of the fight between her maternal aunt Jaimataiya Bai (PW-8) and her father, her mother was very unhappy and was crying. She has stated that her father was asking her mother to bring money from her parents house. In the last line of para-5 43 Cr.Ref No.2/2015 & Cr.A No.1292/2015 of her cross-examination she has stated that she felt that her maternal aunt Jaimataiya Bai had returned the jewellery 8 days before the incident. In para-6 of her cross-examination she has clarified that she had gone to her maternal uncle's house because her mother had told her to do so which message has been delivered to her by her younger sister. In para-7 of her cross-examination she has stated that her father used to stay in the hut made in the field while her mother and other members of the family used to reside in the house in the village. In para-8 of her cross-examination examination she has stated that while she was running after her parents, she met her aunt Sushila (PW-12) and had narrated the entire incident to her. She has also stated that she met Ganga Bai (PW-1) who is the mother of her friend Sandhya and narrated the same incident to her also. In para-9 of her statement she has stated that her father on returning had informed her that he had murdered his mother and had left her lying between the railway track at 8.00 P.M in the night. In the same paragraph she has stated that prior to that her maternal uncle Kamal (PW-2) had already come to their house and had gone to search for the accused appellant and deceased Sundariya Bai and after her maternal uncle had gone to search for her 44 Cr.Ref No.2/2015 & Cr.A No.1292/2015 mother Sundariya Bai and her father, her father had returned home in their absence and had told her that he had already murdered Sundariya Bai her mother. She has gone on to state that her maternal uncle accompanied by his servant Mathura Prasad (PW-3) and his son Ashok (PW-10), whom he had also called, found Sundariya Bai lying in an injured state between the railway track and the three had thereafter taken her to the hospital but she died on the way to the hospital. However, in the same paragraph she has contradicted her own statement by stating that prior to the fact that her father told her that he had murdered his mother, her maternal uncle had already told her about the same inspite of which she asked her father what he had done with her mother. She has thereafter stated that her father went into the cattle shed to change his clothes which were blood stained but as it was dark she could not see as to where her father had hidden the clothes. She has stated that she saw the blood stains on her father's clothes in torch light. She has stated that her father thereafter came out of the cattle shed and went away. In the last line of para-10 she has stated that her father washed his bloodstained clothes on the next morning and spread them to dry on the roof of the cattle 45 Cr.Ref No.2/2015 & Cr.A No.1292/2015 shed. In para-10 she has again come up with a third version of the incident by stating that at 7.30 P.M she rang up her maternal uncle and told him that her father, the accused appellant had told her that he had murdered his wife Sundariya Bai and had left her at the railway track at 7.30 P.M but did not tell him any other fact regarding return of her father, change of clothes, etc. In para-11 she again contradicted her own statement that her father had washed the clothes in the morning on the next day by stating that her father had already been arrested by the police in the night of the incident itself from the 'nala' with an axe in his hand.
31. This statement of Madhuri (PW-4) the main witness to the case becomes doubtful in view of the several omissions and contradictions contained therein. The first is the fact that she states that her father took her mother forcibly on the cycle and while doing so he was seen by Ganga Bai (PW-1) and Sushila (PW-12) but both these witnesses have clearly denied this fact or any knowledge about the incident and have been declared hostile. Secondly, this witness Madhuri (PW-4) in her statement, on the one hand, states that her father came back after committing the crime in bloodstained clothes, 46 Cr.Ref No.2/2015 & Cr.A No.1292/2015 changed them in the night of 1.2.2010, hid them in the cattle shed and thereafter washed the clothes in the morning of the next day and spread them to dry on the roof whereas in the same paragraph she has stated that her father the accused appellant was arrested in the night of the incident itself i.e. 1.2.2010 from the 'nala' with an axe in his hand. Thirdly, it is also apparent that she states that her father hid the clothes in the house itself and subsequently he washed and dried them in the house itself whereas the bloodstained clothes of the accused appellant are said to have been seized from the hut situated in the field vide seizure memo Exhibit P-9 and seizure panchnama Exhibit P-10. The statement of Madhuri (PW-4) is in direct conflict with and in contradiction of the prosecution story which in turn makes it clear that one of them is false thereby casting a deep shadow of doubt on the case against the appellant.
32. From a perusal of the aforesaid facts and circumstances it is also clear that:
(1) the statement made by Madhuri (PW-4) is unreliable and is full of embellishments, exaggerations as well as contradictions and omissions on account of the fact that her statement regarding fighting between 47 Cr.Ref No.2/2015 & Cr.A No.1292/2015 the appellant on account of jewellery is apparently false in view of the clear and specific statement of Jaimataiya Bai (PW-8) who has emphatically stated that she had returned the jewellery eight days before the incident;
(2) her statement regarding constant fighting between her parents on account of the jewellery is not corroborated and supported by her elder sister Kiran @ Rambai (PW-7) who has in fact stated that the fight between her parents was usual and normal fight between husband and wife;
(3) that she has stated that her father, after committing the crime, returned back with bloodstained clothes, hid them in the cattle shed, changed his clothes and went away and thereafter washed his clothes in the morning of the next day after the incident i.e. on 2.2.2010 whereas in the same breath she has also asserted that her father was arrested on the same night of the incident itself i.e. on 1.2.2010 by the police with an axe in his hand whereas there is no mention in her statement to the effect that her father had gone to the field with an axe in his hand or that he had taken the axe after the incident from the cattle shed.
(4) There is also material contradiction in her statement to the effect that she had gone to her 48 Cr.Ref No.2/2015 & Cr.A No.1292/2015 maternal uncle's house to give her examination whereas in her own statement she has stated that her mother told her to go to her maternal uncle's house.
(5) Her statement is also quite unnatural inasmuch as she has stated the fact that she rang her maternal uncle Kamal (PW-2) informing him about the incident but did not inform her paternal uncle or any of her neighbours or persons residing nearby.
33. It is also pertinent to note that a bare perusal of the case diary statement of Madhuri, Exhibit P-38, and the statement made by her in Court clearly indicates that there is omission and contradiction in regard to the alleged extra-judicial confession made by the accused to Madhuri (PW-4) as she has not stated anything about any such extra-judicial confession in her case diary statement. In fact, this contradiction and omission, deficiency and weakness in the statement of Madhuri (PW-4) has also been taken note of by the court below in paras-33 and 44 of its judgment but the court below has chosen to ignore the same on the ground that there is a mistake committed by the prosecutor in recording of her statement and the interest of justice demands that the omissions and contradictions be ignored. 49 Cr.Ref No.2/2015 & Cr.A No.1292/2015
34. The fact that her father had taken her mother forcibly to the field and had told her that he would murder her mother but she did not inform this fact to either her paternal uncle who is her neighbour or any other neighbour residing nearby or any other person residing in the locality or her acquaintance except her maternal uncle who was residing 2 Kms. away also casts a shadow of doubt upon her statement as this conduct is unnatural. The aforesaid omissions, contradictions and embellishments in the statement of Madhuri (PW-4) when read with the uncorroborated and unsupported unnatural statement made by her to the effect that her father told her on three occasions that he would murder her mother and after committing the crime again came back and confessed to the commission of the crime which confession was not disclosed by her in her case diary statement makes it clear that her statement cannot be said to be of unimpeachable and sterling quality and cannot be relied upon as it does not satisfy the tests laid down by the Supreme Court in the above referred judgments.
35. In view of the aforesaid detailed analysis of the evidence of Madhuri (PW-4) we arrive at a conclusion 50 Cr.Ref No.2/2015 & Cr.A No.1292/2015 that her statement is full of embellishments, exaggerations and material discrepancies and, therefore, we find ourselves unable to pick out the grain of truth from the falsehood of her statement.
36. In the facts and circumstances and the background of the case as enumerated above, the omission on the part of the prosecution to examine the best witnesses namely; the younger sister of Madhuri (PW-4) and the third daughter of the accused appellant who was also residing with them, their son Shanker or their paternal aunt, wife of brother of the appellant who was residing nearby or for that matter any of the other neighbours or members of the locality assumes great importance and goes against the prosecution. Surprisingly, the prosecution, instead of examining these witnesses who stayed adjacent to the house of the accused appellant, has examined and relied upon the statement of Kamal (PW-2), his son Ashok (PW-10), Jaimataiya Bai (PW-8), Mathura (PW-3) who reside more than 2 Kms. away from the house of the appellant and no explanation for this lapse has been furnished.
37. We may at this stage also examine the finding regarding motive. The court below has relied upon the 51 Cr.Ref No.2/2015 & Cr.A No.1292/2015 statement of the daughter of the accused Madhuri (PW-
4), the brother of the deceased Kamal (PW-2) and the statement of the sister of the deceased Jaimatiya Bai (PW-8) to record a finding against the appellant in this regard. In the circumstances it is necessary to closely examine the statement of the aforesaid three witnesses.
38. Kamal (PW-2), brother of the deceased Sundariya Bai, in his statement has stated that his sister deceased Sundariya Bai had kept her gold and silver jewellery with her sister Jaimatiya Bai (PW-8) on account of which the accused appellant was extremely agitated and angry and was constantly fighting not just with his wife but also with Jaimataiya (PW-8) sister of the deceased Sundariya Bai. Madhuri (PW-4) has stated the same thing, however she has gone on to add that her maternal aunt Jaimataiya (PW-8) alongwith her husband had come to their house eight days prior to the incident and had returned the jewellery. When subsequently questioned about this fact during her cross-examination she has clarified that her aunt Jaimataiya Bai (W-8) had come alongwith her husband to return the jewellery and when they had done so there was a serious fight between her father the accused appellant and her maternal aunt 52 Cr.Ref No.2/2015 & Cr.A No.1292/2015 Jaimataiya Bai (PW-8) and her and husband. Thereafter they had gone away. She has clarified that she only knew about the fact that her aunt Jaimataiya Bai (PW-8) had come to return the jewellery but she did not know as to whether her mother deceased Sundariya Bai had actually taken back the jewellery or not.
39. In view of the statement of Madhuri (PW-4) and Kamal (PW-2) the statement of Jaimataiya Bai (PW-8) assumes great importance as she is the one who had gone to the house of the accused to return the jewellery. A perusal of the statement of Jaimataiya Bai (PW-8) made in the last line of para-2 of her examination-in- chief, the last line of para-5 and the 1st and 2nd lines of para-6 clearly indicates that she has specifically and clearly stated that she had returned the gold and silver jewellery to the deceased Sundariya Bai 8 days prior to the incident when she had gone to the house of the appellant. This material evidence of Jaimataiya Bai (PW-
8) clearly establishes the fact that the jewellery had been returned and, therefore, the very motive on the basis of which the accused appellant is said to have committed the crime, in our opinion, has not been established. We are also of the opinion that the finding recorded by the court below in this regard is contrary to 53 Cr.Ref No.2/2015 & Cr.A No.1292/2015 the clear and specific statement of Jaimataiya Bai (PW-8) and is, therefore, perverse.
40. The prosecution has also heavily based its case on the fact that bloodstained clothes and bloodstained stones were recovered from the accused, however the seizure witness Shiv Kumar Rathore (PW-6) who is also a witness to the arrest of the accused, has categorically denied the fact that any such item was seized before him or that the accused appellant was arrested in his present on 2.2.2010. In fact this witness has gone on to clarify that the police authorities had obtained his signatures on blank papers and that the accused appellant had already been arrested in the night of 1.2.2010 itself and that the signature on the arrest memo of Shiv Kumar Rathore (PW-6) were obtained on the next day i.e. on 2.2.2010.
41. From a perusal of the FSL report Exhibit P-35 it is also clear that the blood group on the clothes has not been ascertained as it has been stated that the blood had disintegrated and that the quantity was not sufficient. The seizure of the aforesaid items also becomes doubtful in view of the clear statement of Madhuri (PW-4) wherein she has stated that the accused had infact washed the clothes and spread them out for 54 Cr.Ref No.2/2015 & Cr.A No.1292/2015 drying and in view of the statement of Shiv Kumar Rathore (PW-6) the seizure witness.
42. In the instant case the postmortem report Exhibit P- 8 also becomes significant in view of the nature of injuries on the body of deceased Sundariya Bai which have been enumerated therein specifically in the light of the prosecution story that the accused appellant committed the murder of his wife Sundariya Bai by smashing her head against the metal stones lying between the railway track repeatedly. The 9 injuries which have been found on the person of the deceased which have been enumerated in para-6 of the judgment of the court below are all lacerated wounds which are of various sizes but are all flesh deep. The postmortem report does not indicate that the deceased suffered any fracture or injury in the bone. Surprisingly, the postmortem report also indicates that there was no other injury on the body of the deceased except for the 9 injuries which were found on the face and head of the deceased. When we take into consideration the aforesaid injuries in juxtaposition with the prosecution story as well as the fact that the prosecution alleges to have seized 3 stones from the accused appellant which vary in size from ½ kg. to 1 kg. and the saree of the 55 Cr.Ref No.2/2015 & Cr.A No.1292/2015 deceased which was found lying several feet away from her dead body, it is hard to believe that if injuries with such stones would have been inflicted upon the face or if the face of the deceased had been smashed against the metal stones of the railway track she would have sustained only flesh deep injuries and would not have suffered any fracture or injury in the facial bones or in the skull. It is significant to note that the doctor has not given any opinion in the postmortem report regarding the fact that the death of the deceased was homicidal. The doctor has only opined that the death was on account of excessive bleeding and shock resulting from the injuries suffered by the deceased. All these aspects have not been explained by the prosecution by either medical, forensic or other evidence.
43. When we take into consideration the aforesaid facts alongwith the fact that the bloodstained saree of the deceased was found lying a few feet away from the railway track, the strong possibility of a struggle and scuffle between the deceased and the assailant cannot be ruled out, however, as no injuries were found on any other part of the body of the deceased except the fact, therefore, the prosecution story becomes unbelieveable. Surprisingly, inspite of the aforesaid facts and 56 Cr.Ref No.2/2015 & Cr.A No.1292/2015 circumstances of the case, the accused appellant has not been medically examined. This lapse on the part of the prosecution becomes significant keeping in mind the aforesaid circumstances as in case of scuffle between the deceased Sundariya Bai and the accused appellant, both of them were bound to have suffered some injury on their person or some abrasion or scratches on the knee or other part of the body which are totally absent in the instant case. The photographs available on record Exhibit P-20 to 31 also indicates that there were several spots of blood in the middle of the railway track and there are injuries on the face and head of the deceased inspite of which no injury on any other part of the deceased were found nor was the accused medically examined. The prosecution has also not given any explanation for the aforesaid lapses.
44. We may also consider the statement of the Investigation Officer Satish Dwivedi (PW-11) in the light of the aforesaid facts. Firstly, this witness states that the accused appellant was arrested in the moring of 2.2.2010 whereas as many as 3 witnesses namely; Kamal (PW-2), Mathura (PW-4) and Shiv Kumar (PW-6) have clearly stated that the accused appellant was arrested and detained by the police in the night of 57 Cr.Ref No.2/2015 & Cr.A No.1292/2015 1.2.2010 itself. Secondly, this Investigation Officer has failed to give any explanation or properly investigated into the fact as to how the bloodstained saree was found lying several feet away from the railway track and has not offered any explanation for the same. This Investigation Officer has also omitted to get the accused medically examined which would have been extremely useful to establish the link between the accused appellant and the commission of the crime in case any injury would have been found on the person of the accused appellant. There are also serious discrepancies in the statement of this Investigation Officer regarding the photographs taken by them. His statement also becomes unreliable in view of the fact that on the one hand the prosecution alleges that the deceased was murdered by the appellant by smashing her head against the stones lying between the railway track and on the other hand three stones weighing ½ kg. to 1 kg. have been seized from the hut of the appellant which are stated to be the murder weapon but the injuries on the face of the deceased do not tally with the size of the aforesaid seized stones.
45. The story set up by the prosecution is extremely unnatural as it is hard to believe that the accused would 58 Cr.Ref No.2/2015 & Cr.A No.1292/2015 have smashed the deceased with the seized stones and would thereafter have carried the stones and hidden them in his hut. This story is also inconsistent with the conclusion of the trial court that the accused murdered the deceased by smashing her head against the stones lying between the railway track. The fact of seizure of stones and the bloodstained clothes from the hut of the accused appellant also becomes unacceptable in view of the statement of Madhuri (PW-4) who has stated that her father returned home and did not go to the hut after committing the crime and hid the clothes in the cattle shed and thereafter washed them in the morning of 2.2.2010. Had he done so, the question of recovering them from the hut of the accused appellant in the field did not arise. This glaring contradiction in the prosecution case is unreconcilable. The aforesaid discrepancies in the statement of the Investigation Officer makes it unreliable, impeachable and highly improbable. The aforesaid lacuna committed by the Investigation Officer creates a fatal dent in the prosecution case.
46. In the light of the aforesaid discussion, we are of the considered opinion that the finding recorded by the court below regarding motive in para-30 of the judgment and 59 Cr.Ref No.2/2015 & Cr.A No.1292/2015 the sequence of events and the chain of circumstances in para-41 of the judgment cannot be sustained in view of the several discrepancies and omissions in the statement of Madhuri (PW-4) whose statement has been made the main basis for recording a finding of guilt by the trial court as her statement contains several discrepancies and omissions and is, therefore, unreliable. We are of the considered opinion that the finding regarding motive, last seen, extra-judicial confession and chain of circumstances recorded by the trial court is unsustainable and deserves to be set aside in view of the discussions in the preceeding paragraphs specifically in view of the law laid down by the Supreme Court which has been extensively considered in this judgment.
47. We also find ourselves unable to uphold the recommendations made by the trial court in para-44 of the judgment regarding giving of an award to Madhuri (PW-4) in view of our aforesaid findings as a perusal thereof makes it clear that the court below was highly influenced and got emotionally carried away by the statement of Madhuri (PW-4) who is the daughter of the accused appellant and has written a poetic judgment rather than a valued judgment. We are also of the considered opinion that the court below has grossly erred 60 Cr.Ref No.2/2015 & Cr.A No.1292/2015 in getting carried away by the extraneous circumstances and public opinion. We are of the considered opinion that the court below should have refrained from making any such recommendation or comment in respect of any witness as has been made by the court below in para-44 of its judgment regarding the statement of Madhuri (PW-4).
48. In view of the aforesaid reasons and discussion, we reject the reference for the confirmation of death penalty and allow the appeal, setting aside the impugned judgment dated 7.5.2015 passed by the District and Sessions Judge, Anuppur in Sessions Trial No.72/2010 convicting the appellant under sections 302 and 201 IPC. The appellant is acquitted of the aforesaid charges. He be set at liberty forthwith if not required in connection with any other case.
A copy of this judgment be retained in Criminal Appeal No.1292/2015.
( R. S. JHA ) ( RAJENDRA MAHAJAN )
JUDGE JUDGE
11/12/2015 11/12/2015
mms/-