Babua & Anr. vs State of M.P.

This appeal by the sole appellant is directed against the judgment dated 08.05.2008, passed by First Additional Sessions Judge, Damoh in S.T. No. 43/2007, whereby appellant has been found guilty for the offence punishable under Sections 460 and 302 of the Indian Penal Code and has been sentenced to rigorous imprisonment for 5 years and fine of Rs.1,000/- and life imprisonment and fine of Rs.2,000/- and in default of payment of fine, to further suffer rigorous imprisonment for one month and two months respectively.

As per prosecution, P.W.-1 Surendra Kumar and his family had gone to Nasiyaji Mandir at 9.30 in the night, leaving his mother Rooprani alone at home.

He came back at 10.00 P.M. and found the door of his house locked from inside and his mother lying dead with a handkerchief tied around her neck. The incident was reported by P.W.-1 Surendra Kumar at 3.00 A.M. in the night on 30.08.2006. On the basis of which, further investigation followed. FIR (Ex.P-18) was recorded by P.W.-16 Bhalla Prasad Dubey, ASI, against unknown persons and detailed spot inspection report (Ex.P-25) and map was made and the body was sent for post mortem.

P.W.-12 Dr. Rajeev Sthapak, who conducted the post mortem (Ex.P-12) at 12.30 P.M. on 30.08.2016 had opined that the cause of death is asphyxia due to strangulation and as a result of cardiac respiratory arrest.

The appellant was arrested at 1.30 P.M. on 01.12.2006 from sub-jail Laknadon and on his memorandum (Ex.P-10) the mobile was seized from him on 31.07.2007. The trial Court convicted and sentenced the appellant as mentioned hereinabove considering the fact that appellant was a history sheeter for petty offences and on the basis of call details produced by the prosecution.

We have heard the learned counsel for the parties and meticulously perused the record. From a perusal of the record, it is clear that the whole case of the prosecution is based on circumstantial evidence and the seizure of mobile and its call details (Ex. P-16).

P.W.-1 Surendra Kumar, son of the deceased has stated that on 29.08.2006, at about 8.30 P.M., he went to the temple of Narsiyaji. At that time his mother (deceased) and his wife, Sushma (P.W.-2), were at home. He has stated that his mother was ill and was suffering from chicken guniya, so before going, he lifted her from bed and put her down on the floor. He has further stated that at 9.30 P.M., his wife left for the temple after locking the door of the house from outside. He returned alone from the temple at

10 O'Clock in the night and tried to open the door and found that the door was locked from inside. He called the neighbor Virendra Kumar Asati (P.W.-3) and went to call his wife from the temple. After opening the channel gate, they entered the house and saw the deceased lying dead on the floor with her handkerchief tied around her neck. Thereafter, he went to inform the police. He has stated that the police has taken his statement, wherein he has disclosed the name of the persons he has suspicion on and the fact that his mobile and charger were missing. However, his case diary statement is not available on record.

P.W.-2 Sushma has stated that her husband left for temple at 8.30 P.M. after putting his mother on

floor. Thereafter, at about 9.30 P.M., she also left for the temple after locking the door from outside. She has further stated that about 10 P.M. her husband returned from the temple leaving her at temple, but after 5-7 minutes, he came back to call her.

Thereafter, she went to her house and opened the channel gate to go inside the house and found her mother-in-law lying in the floor with her handkerchief tied around the neck. She has further stated that they have two sets of keys, one set is kept by her husband Surendra Kumar (P.W.-1) and the other set which has the key of channel gate is with her.

P.W.-9 Malkhan Singh, who recorded the merg intimation has stated that Surendra Kumar (P.W.-

1) has not told about the theft of mobile in the merg intimation. P.W.-16 Bhalla Prasad Dubey (ASI) and P.W.-

17 Kiran Singh, Sr. Scientist of Crime wing, who had done the spot inspection has stated that all the doors of the house were locked from inside. There were no foot marks. Nothing was touched from the room.

Complainant opened the godrej almirah and the locker and found that all the valuables, clothes etc. were in their place. P.W.-17 Kiran Singh has specifically mentioned that the door towards the roof was also closed from inside and the only way to reach the passage outside was through the channel gate, which could be opened from both the sides, whereas all other doors if locked from inside, could not be opened from outside.

Spot inspection report (Ex.P-25) is reproduced below :-

"VERNACULAR MATTER OMITTED"

From a perusal of statements of P.W.-1 Surendra Kumar, P.W.-2 Sushma and P.W.-17 Kiran Singh and the spot inspection report (Ex. P-25), it is clear that P.W.-1 Surendra Kumar himself had put his mother on floor and P.W.-2 Sushma locked the house from outside. It is an admitted fact that keys of the door and channel gate were with P.W.-2 Sushma. As per the spot inspection report, all the doors of the house were closed, there was no sign of forced entry into the house. No foot prints were found. In view of the spot inspection report, there was no way anyone could have gained entry into or gone out of the house.

The doors to the roof, from where the accused had allegedly entered and gone out was also found locked from inside.

P.W.-1 Surendra Kumar has stated that his mobile and charger were stolen from the place and that he has also informed about the same in the report (merg intimation) and in his case diary statement.

However, P.W.-9 Malkhan Singh, who recorded the merg intimation has specifically stated that merg intimation was written as per the information given by P.W.-1 Surendra Kumar and he has not stated or disclosed the theft of mobile. Another aspect of the case is that allegedly only mobile and charger had been stolen, whereas the other valuable items, gold and silver available in the house were found untouched.

It is also pertinent to note that the finger prints collected from the crime scene were sent for examination to finger print expert alongwith the finger prints of accused, however, the report of the same was not made available by the prosecution, probably for the reason that the same had not matched.

It is not the case of prosecution that the accused had any ill will towards P.W.-1 Surendra Kumar and to take revenge had committed the crime. The only other reason for entering a house would be for the purpose of theft, but considering the fact that nothing valuable was even touched or stolen from the house, there is nothing to connect the accused with the said crime.

It is also pertinent to note that appellant was arrested on 01.12.2006 from the sub jail Lakhnadon and the seizure was made on 31.07.2007 after 7-8 months of the incident. According to the prosecution, the accused had thrown away the sim and after burning, the mobile had hid it in his room. Once a person had thrown away the sim and burned the mobile, it is unlikely that he would hide it in his house to incriminate himself. The prosecution apart from giving the details of his criminal antecedents, has not brought on record as to whether he was in jail or not on the date of incident.

P.W.-1 Surendra Kumar has stated that he did not know the name of the accused. Later on, Mihilal (P.W.-5) told him about the name of the accused as the accused had earlier worked at his house and on the basis of suspicion, Rajkumar was named as accused. Chakresh Jain (P.W.-6), nephew of deceased has stated that accused had called up one Kallu @ Kaluram (P.W.-7) at Jabalpur on his land line and talked to his mother. Kaluram (P.W.-7) has, however, denied any such suggestion. He had categorically stated that he did not know the accused, nor had accused ever called on his land line. This witness had been very consistent in his cross-examination also. Ex. P-16, the call details produced by the prosecution is of no use as it does not show who was speaking from the other end.

This list only show the calls, incoming or outgoing made or SMS sent to some number, which is not enough to connect the appellant with the crime unless the location of the mobile is traced and matched with the location of the accused.

In view of the aforesdiscussed, the trial Court had committed an error in convicting the appellant solely on suspicion relying on the fact about his previous antecedents about the petty offences and on the basis of call details produced by the prosecution.

It is settled law that suspicion, howsoever strong, cannot form the basis of conviction. In the case of Rajiv Singh Vs. State of Bihar (2015) 16 SCC 369, the Supreme Court has held:

It is well-entrenched principle of criminal jurisprudence that a charge can be said to be proved only when there is certain and explicit evidence to warrant legal conviction and that no person can be held guilty on pure moral conviction. Howsoever grave the alleged offence may be, otherwise stirring the conscience of any court, suspicion alone cannot take the place of legal proof. The well-established canon of criminal justice is "fouler the crime higher the proof". In unmistakeable terms, it is the mandate of law that the prosecution in order to succeed in a criminal trial, has to prove the charge(s) beyond all reasonable doubt.

The above enunciations resonated umpteen times to be reiterated in Raj Kumar Singh Vs. State of Rajasthan (2013) 5 SCC 722 as succinctly summarized in para 21 as hereunder :

"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 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."

In supplementation, it was held in affirmation of the view taken in Kali Ram vs. State of H.P . (1973) 2 SCC 808 that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted."

Reference may also be made to the decision of Supreme Court in Pawan Kumar Vs. State of Haryana (2001) 3 SCC 628, wherein it is held:

Before adverting to the rival contentions, be it noted that the entire matter hinges on circumstantial evidence. There is also however existing on record a dying declaration, but its effect on the matter shall be discussed shortly hereafter in this judgment. Incidentally, success of the prosecution on the basis of circumstantial evidence will however depend on the availability of a complete chain of events so as not to leave any doubt for the conclusion that the act must have been done by the accused person. While, however, it is true that there should be no missing links, in the chain of events so far as the prosecution is concerned, but it is not that every one of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. Circumstances of the strong suspicion without, however, any conclusive evidence are not sufficient to justify the conviction and it is on this score that great care must be taken in evaluating the circumstantial evidence. In any event, on the availability of two inferences, the one in favour of the accuses must be accepted and the law is well settled on this score, as such we need not dilate much in that regard excepting, however, noting the observations of this Court in the case of State of U.P. Vs. Ashok Kumar Shrivastava (AIR 1992 SC 240) wherein this Court in para 9 of the report observed :

"9. This Court has, time out of number observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. 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. The circumstance 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. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise."

The other aspect of the issue is that the evidence on record, ascribed to be circumstantial, ought to justify the inferences of the guilt from the incriminating facts and circumstances which are incompatible with the innocence of the accused or guilt of any other person. The observations of this court is the case of Balwinder Singh Vs. State of Punjab (AIR 1987 SC 350) lends concurrence to the above.

In the light of the law laid down by the Supreme Court and in view of the peculiar facts and circumstances of the case aforediscussed, we are of the considered opinion that impugned judgment dated 08.05.2008 passed in S.T. No.43/2007 deserves to be and is hereby set aside. The appellant is acquitted of the alleged offence punishable under Sections 460 and 302 of the Indian Penal Code.

The appeal filed by the appellant is allowed.

The appellant be accordingly set free forthwith, if not required in connection with any other case.