Phoolchand Rathore vs The State Of Madhya Pradesh

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 -------------------------------------------------------------------------------------- For the appellant : Shri Jagannath Tripathi and Shri R. S. Rathor, Advocates.

For the respondent/State: Shri Ajay Shukla, Govt. Advocate -------------------------------------------------------------------------------------- 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/-