Iqbal vs State of M.P.

This appeal has been filed by the appellant, being aggrieved by the judgment dated 12.09.2005, passed by Additional Sessions Judge, Sohagpur, District Hoshangabad in S.T. No. 280/2002, whereby appellant has been found guilty for the offence punishable under Section 302 of the Indian Penal Code and has been sentenced to life imprisonment and fine of Rs.200/- and in default of has to suffer rigorous imprisonment for one month.

The brief facts leading to the present criminal appeal may be summarized as follows : On 31.01.2000 at around 10.30 A.M., P.W.-1 Ramji Vishwakarma lodged a report (Ex.P-1) at Police Station Sandia Piperiya to the effect that at 9.00 A.M., in the morning, his brother-in-law, Lallu @ Laxminarayan, forcibly tried to take away his 1 1/2 year old daughter Rani from the lap of her grandmother Baribai, and on being resisted, the accused/appellant stabbed the deceased Baribai in stomach and side of the chest with

knife. P.W.-7 Shankerlal, husband of the deceased, when tried to intervene, was also attacked by the appellant and sustained injuries on his nose. According to prosecution, the incident was witnessed by Shivpal Rajput, Ramsingh Rajput and wife of Ramcharan Chamar. Baribai was taken to the hospital, where she was declared dead.

On the basis of Ex. P-1, FIR (Ex.P-21) was recorded and the criminal law was set into motion.

Statement of the witnesses were recorded and the spot map and panchnama were prepared. The body of the deceased was sent for post mortem.

P.W.-8 Dr. A.K. Agrawal, who conducted the post mortem has opined that the death occurred due to shock and haemorrhage on account of injury to the vital organ (heart) of the body.

The trial Court after considering the evidence on record, convicted the appellant as aforementioned, placing reliance on the evidence of P.W.-1 Ramji Vishwakarma, P.W.-7 Shankerlal and P.W.-

9 Durgabai.

Smt. Durgesh Gupta, learned counsel appearing for the appellant has submitted that the appellant has been falsely implicated. It is a case of circumstantial evidence and no one has actually seen the incident. It is stated that there is material discrepancies in the evidence of P.W.-1 Ramji Vishwakarma, P.W.-7 Shankerlal and P.W.-9 Durgabai, who are all interested witnesses. The independent witnesses have not supported the prosecution case.

There is no recovery and nothing to connect the appellant with the commission of the crime and under such circumstances, the inference of guilt drawn by the trial Court was clearly perverse.

Per contra, Shri Anubhav Jain, learned Govt. Advocate appearing for the State has vehemently opposed the submission made by learned counsel for the appellant, contending that the appellant has a premeditated intention to commit the offence and that is why he came armed with a knife. It is contended that the appeal lacks merit and is liable to be dismissed.

We have heard the learned counsel for the parties at length and perused the record.

It is clear from the material placed before us that P.W.-1 Ramji Vishwakarma, P.W.-9 Durgabai and P.W.-7 Shankerlal, all claimed to be eye witnesses.

However, the story put up by all of them is different and does not corroborate in material particulars.

P.W.-1 Ramji in his deposition has stated that the incident happened inside the house in presence of P.W.-7 Shankerlal and P.W.-9 Durgabai.

According to him, P.W.-9 Durgabai was living with them since last one year. Appellant asked Baribai to send Durgabai with him which was refused by Baribai. On being refused, appellant took out a knife from his pocket and stabbed Baribai in the stomach, contrary to his case diary statement, where he had stated that appellant tried to snatch his daughter from the lap of Baribai and on being resisted, appellant stabbed Baribai. He has further stated that when he and P.W.-

7 Shankerlal tried to save deceased Baribai, appellant stabbed him in the stomach and inflicted injuries on the nose of P.W.-7 Shankerlal. Though in his cross-examination, P.W.-1 Ramji has admitted that he was inside the room and came out only after hearing his mother's cries. He has stated that he did not see the appellant stabbing his mother as the whole incident happened within 2-3 minutes. He has further admitted that his father P.W.-7 Shankerlal has told him about the incident.

P.W.-1 Ramji has further improvised and

stated that P.W.-4 Shivpal and P.W.-2 Ram Singh also tried to save deceased Baribai. However, P.W.-4 Shivpal and P.W.-2 Ram Singh, both have not supported the prosecution story and has been declared hostile.

P.W.-2 and P.W.-4 have stated that they have not seen the incident nor seen the appellant at the place of occurrence and has only heard Ramji shouting that appellant after murdering Baribai had run away.

P.W.7 Shankarlal, on the other hand, has

stated that at 9 A.M. in the morning, he was sitting infront of his house, enjoying the bonfire, when deceased Baribai and P.W.-9 Durgabai came with roti.

According to him, Baribai was holding Rani alongwith a basket, when appellant Lallu suddenly came and tried to snatch his daughter from Baribai, which was resisted by her. According to Shankerlal (P.W.-7), appellant took the basket from Baribai and threw it on the ground and stabbed Baribai in the stomach and

chest. Thereafter, he inflicted an injury on the nose of Shankarlal and ran away. He has not stated anything about the presence of P.W.-1 Ramji, on the spot. P.W.-7 Shanakerlal has stated that his daughter came to live with him since last 15 days only and has denied the suggestion that she was living with him since last seven months to one year. He has further stated that appellant loved his wife and daughter. According to Shankerlal (P.W.-7), appellant did not ask him to send P.W.-9 Durgabai with him. Shankerlal (P.W.-7) has further stated that he was not aware of the fact that Baribai had refused to send Durgabai with the appellant. As per P.W.-7 Shankerlal, there was no conversation between the appellant and Baribai. The appellant came suddenly and stabbed Baribai and ran away before Shankerlal could understand anything.

P.W.-9 Durgabai, daughter of the deceased

and wife of the appellant, on the other hand has stated that on 31.01.2000, at 9.00 A.M., she and her mother were going to Patel's house for bringing "Bhusa". At that time, she was holding her daughter Rani in her

lap. According to her, appellant came and tried to take his daughter from her, then deceased Baribai took Rani in her lap. As per P.W.-9 Durgabai, the appellant tried to take Rani from Baribai, who resisted, on which the appellant took out a knife and stabbed her. She has stated that at the time of incident, only she and her mother Baribai were there. Her father P.W.-7 Shankerlal and brother P.W.-1 Ramji came later, after the appellant had run away. According to P.W.- 9 Durgabai, the incident took place behind their house and no one has seen the incident.

From the aforesaid, it is clear that the

evidence of alleged eye witnesses in conflict and contradiction with each other in regard to the place and in the manner the incident occurred. It is evident that three of them has stated a different place of occurrence and denied each other presence, which creates a serious doubt about the truthfulness of these witnesses.

In the case of Mahendra Pratap Singh

Vs. State of Uttar Pradesh (2009) 11 SCC 334

the Supreme Court has held :

"The discrepancies in the evidence of eye witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case, it cannot be held that the prosecution proved its case beyond reasonable doubt.

In the case of State of Rajasthan Vs.

Rajendra Singh (2009) 11 SCC 106, the Supreme Court has held :

"Where the omission (s) amount to a

contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the Court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence."

The other witnesses, P.W.-2 Ramsingh, P.W.-

4 Shivpal Singh and P.W.-11 Battibai, who according to the prosecution were present at the time of incident have all been declared hostile. P.W.-2 Ramsingh and P.W.-4 Shivpal Singh have denied their presence at the place of incident and had stated that they were later on informed by Ramji. Similarly P.W.-11 Battibai had stated that she was in Piperiya at the time of incident and was only told about the incident after 2-3 days, when she came back to the village.

The learned counsel for the appellant has questioned the recovery of clothes and the arrest of the accused/appellant. According to P.W.-15 A.K.

Dandhiriya, (I.O.), the pant, shirt and sweater which were allegedly worn by the appellant at the time of incident were recovered vide Ex. P-8, on the same day, i.e., on 31.1.2000 from the field of Ghanshyam in presence of P.W.-3 Jai Mohan and Ghanshyam. The appellant was arrested after two years of the incident on 06.04.2002, from his house at village Shahganj, district Sehore. It is thus clear that the recovery was not made pursuant to arrest and disclosure made by the appellant, hence no importance can be attached to

it. Apart from this fact, the witnesses of the seizure have all turned hostile and denied the recovery.

According to P.W.-2 Ram Singh and P.W.-4 Shivpal Singh, the clothes picked up by the police earlier were not shown to them and they were made to sign afterwards on the seizure memo. The alleged weapon of the crime was not recovered and in absence of the FSL report, there is nothing on record to establish the presence of appellant on the place of the incident or to link the appellant with the commission of the crime.

The fact which weighed heavily with the trial Court was that P.W.-1 Ramji and P.W.-7 Shankerlal had allegedly received injuries in the said incident.

However, as per P.W.-8 Dr. A.K. Agrawal, the same were simple in nature and could have a result of the

fall. Apart from that, in view of the statement of P.W.-

7 Shankerlal that appellant loved his wife and daughter. There was no reason or motive for the appellant to kill Baribai, as it was not the case of prosecution that there was some previous enmity.

It is settled law that suspicion, however, strong, cannot form the basis of conviction and a charge can be said to be proved only when there is certain explicit evidence to warrant legal conviction.

In the case of Raj Kumar Singh Alias Raju Alias Batya Vs. State of Rajasthan (2013) 5 SCC 722, the Supreme Court has held :

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. (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. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P ., AIR 2012 SC 1979)

In Kehar Singh Vs. State (Delhi Administration) (1988) 3 SCC 69, the Supreme Court has held that if the discrepancies are material, it would be safer to err in acquitting than in convicting the accused.

In the instant case, there have been major contradictions/infirmities in the deposition of P.W.-1 Ramji, P.W.-7 Shankerlal and P.W.-9 Durgabai, which cannot be ignored when they are examined in its entirety. The evidence produced by the prosecution appears to be very shaky and the chain of links connecting the appellant with the crime appears to be inconclusive.

In view of the above, it is clear that the prosecution has failed to prove the case against the appellant beyond reasonable doubt. Thus, the appeal succeeds and is hereby allowed. The conviction and sentence imposed on the appellant is set aside. The appellant is directed to be released forthwith, unless wanted in some other case.