Jakir Khan vs State of M.P.

This appeal has been filed by the appellant being aggrieved by the judgment dated 6.12.2005, passed by learned Sessions Judge, Shahdol in Sessions Trial No. 136/2005, whereby the appellant has been found guilty for the offence punishable under Section 302 of IPC and has been sentenced to undergo life imprisonment and fine of Rs.100/-with default stipulation.

The prosecution story setting in motion the aforesaid trial, in nut shell, is that on 24.04.2005 at around 11.30 AM, Jaimantri (PW.1) who is mother-in-law of the accused-appellant had lodged a report Ex.D/1 to the effect that the accused had assaulted and killed her daughter Amsiyabai with a Tangi .

According to the prosecution, Anita (PW.2), daughter of the deceased, came to call Jaimantri (PW.1) at the behest of her father appellant Dauwa. Jaimantri (PW.1) when reached the house of accused at 8 AM in the morning, she found Amsiyabai lying dead. She was informed by the wife of Prabhua that some girls had seen the appellant assaulting his wife with Tangi near the river.

On the basis of FIR (Ex.D/1), criminal law was set in motion. Spot map and panchnama were prepared and the body of the deceased was sent for postmortem.

The appellant was arrested and on his direction Tangi was recovered from his house.

Postmortem was conducted by a team of doctors.

Dr.N.K.Soni (PW.9) who conducted the postmortem has found as many as 16 injuries on the body of deceased including abrasion and contusion on the neck and the right and left side of the cheek and molar region, fracture of frontal and parietal bone and nasal bridge, and lacerated wound on the chin and forehead.

According to Dr.(Smt.)S.Namdeo and Dr.N.K.Soni the cause of death was shock due to excessive bleeding.

After completion of the investigation, the accused-appellant was charged for committing the offence punishable under Section 302 of IPC. In order to bring home the charge, the prosecution has examined ten witnesses.

The accused-appellant abjured his guilt. It was the definite case of the defence that the deceased had too much to drink and under the effect of alcohol, fell down from the roof and had sustained the grievous injury on her face and head.

The learned trial Court, after analyzing the oral and documentary evidence on record, has recorded a finding against the appellant relying mainly on the statements of Anita (PW.2) a child witness, and Dr. N.K.Soni (PW.9), and sentenced him as aforesaid. The fact which weighed with the trial Court was that at the time of incident, only appellant, his deceased wife and Anita (PW.2) were present in the house.

The learned counsel appearing for the appellant has submitted that there were no eye-witness of the incident. There is much contradictions and omissions in the evidence of child witness Anita (PW.2), and her being tutored cannot be ruled out. It is contended that the conviction and sentence is based on the testimony of Dr.N.K.Soni (PW.9) while there is nothing incriminating against the appellant to show that he is guilty or responsible for the commission of the alleged offence. It is submitted that it is a clear case of circumstantial evidence, and in the facts and circumstances of the case, the appellant be acquitted of the aforesaid charge.

Per contra, learned Govt. Advocate appearing for the respondent/State has supported the impugned judgment passed by the trial Court. It is contended by him that the appeal lacks merit and is liable to be dismissed.

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

In State of M.P. vs. Ramesh and another (2011)

4 SCC 786 , The Apex Court while dealing with the

testimony of a child witness has observed as under :-

"14. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition."

In Radhey Shyam vs. State of Rajasthan (2014)

5 SCC 389 , the Supreme Court has observed thus:-

"12. In Panchhi vs. State of U.P . (1998) 7 SCC 177, after reiterating the same principles, this Court observed that the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and, thus, a child witness is an easy pray to tutoring. This Court further observed that the courts have held that the evidence of a child witness must find adequate corroboration before it is relied upon. But, it is more a rule of practical wisdom than of law. It is not necessary to refer to other judgments cited by learned counsel because they reiterate the same principles. The conclusion which can be deduced from the relevant pronouncements of this Court is that the evidence of a child witness must be subjected to close scrutiny to rule out the possibility of tutoring. It can be relied upon if the court finds that the child witness has sufficient intelligence and understanding of the obligation of an oath. As a matter of caution, the court must find adequate corroboration to the child witness's evidence. If found, reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation. We will scrutinize PW-2 Banwari's evidence in light of the above principles."

In the instant case, Anita (PW.2) was a child of six years of age at the time of incident. The trial Court has found her worth reliance as she has understood the questions put to her and was able to answer the same.

Anita (PW.2) has stated that her father killed her mother by the river. She had clearly admitted that she had not seen the incident nor seen him assaulting her mother. While in her examination-in-chief, she had stated that she had seen the appellant bringing her mother on the bicycle and at that time blood was oozing from her face. However, in the cross-examination, she has denied the said fact. She had stated that all of them slept in the night and she had seen her mother only in the morning whereafter her father had taken her to Pachgaon to call her grand-mother Jaimantri (PW.1).

In the instant case, it is observed that Anita (PW.2) a child witness,was only seven years' old when she gave the evidence and had come to depose with her grand-mother (Nani), with whom she was living since after the death of her mother. She was child of a tender age and susceptible to be swayed by what others tell her, and her being tutored by Jaimantri (PW.1) can not be ruled

out. Her statement that her father killed her mother near the river is contrary to her previous statement and not corroborated by any of the other prosecution witnesses. She had admitted that she was sleeping in the house and had not seen the incident. Moreover, if the appellant had killed the deceased by assaulting her with Tangi, as alleged, it is inconceivable that Anita (PW.2)and her neighbours would have not heard the cries of the deceased. In such a situation, it is difficult to place the reliance on the testimony of Anita (PW.2) which is shaky and uncorroborated.

Jaimantri (PW.1) has stated that Anita (PW.2) came at 6 AM in the morning and told her that her mother Amsiyabai had called her contrary to her case diary statement where she had stated that Anita came to call her at the behest of the accused-appellant. She has further stated that when she reached the house of the appellant, her daughter was lying dead in the courtyard

(Parchchi) and she had Tangi injuries on her face.

According to Jaimantri (PW.1), Chandrawati (PW.5) wife of Parhua, had informed her that the accused had killed the deceased Amsiyabai last evening by assaulting her with Tangi by the river.

The alleged eye witnesses of the incident Nemiya (PW.3),Lalti (PW.4) and Chandrawati (PW.5) have not supported the prosecution story and have denied giving any information to Jaimantri (PW.1).

Witnesses of seizure Gudda Baiga (PW.6), and Moti Baiga (PW.7) brother of the deceased, have stated that the police gave the appellant severe beating to get disclosure from him.

There is yet another aspect which completely falsify the prosecution story. According to the prosecution, the appellant had assaulted the deceased with Tangi, yet the medical evidence of Dr. N.K.Soni (PW.9) shows that the injuries sustained by the deceased could not have come from sharp edged weapon. In absence of the FSL report and in view of the evidence of Dr.N.K.Soni (PW.9), recovery of Tangi from the appellant loses its importance. In his cross-examination, the doctor has admitted that the injuries could be caused by stone. Therefore, the possibility cannot be ruled out that after consuming alcohal, the deceased went to the roof/terrace and might have fallen face down from there and hit herself on the rough and hard surface and sustained the injuries on her face and neck.

It is difficult to believe that the appellant who allegedly had committed the crime he would still sleep in the same house and take his daughter to Pachgaon in the next morning to call her grand-mother. His first reaction would have been to run away. The trial Court has convicted the appellant for the fact that the appellant was at the home with the deceased and Anita

(PW.2).

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." 68. 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."

In this case, the fact demonstrate clearly that no one had seen the incident and there is nothing on record to connect the appellant with the commission of the

crime. Thus, we are of the opinion that the prosecution has failed to prove the case beyond reasonable doubt.

The incident does not appear to have happened in the manner in which the prosecution wants the Court to believe it had happened. On the contrary, the defence taken by the appellant appear to be more plausible.

On an overall consideration of the evidence available on record, it would be, in our view wholly unsafe to hold the appellant guilty of the charge of murder of his wife by assaulting her with "Tangi" as seized.

In view of the aforesaid facts and circumstances and the settled law, we are of the considered opinion that the impugned judgment dated 6.12.2005 passed in ST No.136/2005 by learned Sessions Judge, Shahdol deserves to be and is hereby set aside. The appellant is given benefit of doubt, the accused-appellant is acquitted of the alleged offence punishable under Section 302 of IPC.

Accordingly, the appeal filed by the appellant is hereby allowed. The appellant is directed to be released forthwith, if not required in connection with any other case.