PRABHULAL vs MOHOMMAD VASHEER KHAN AND OTHERS

This appeal under Section 374(2) of the Code of Criminal Procedure has been filed by the appellant being aggrieved by the judgment dated 7.10.2004 passed by the Additional Sessions Judge, Naogaon, district Chhatarpur in Sessions Trial No. 12/2004 convicting the appellant for the charge under Section 302, 394 and 449 of the Indian Penal Code (hereinafter be called IPC in short) and directing him to undergo rigorous imprisonment for life and ten years for remaining two charges with fine of Rs.1000/- for each charges and with default stipulation.

The prosecution story in brief is that on 15.10.2003 complainant Om Prakash (PW-1) lodged the FIR to commit loot and murder of his wife Smt. Ashadevi by unknown persons. It is said that he had gone to Mahoba for some work of Gram Panchayat alongwith one Mahendra Singh Yadav. While he left the home, his wife, children and his servant Vimal (present appellant) were at home. When he was coming back in the evening at 7.00 pm, Manoj Mishra and Mahipat Tiwari met and told somebody had murdered his wife whereupon he

alongwith them reached at home and saw his wife lying dead on floor. It is also seen that there was electric wire rounded on her neck and bleeding from her mouth. When he saw the almirah of the room, Rs.34,800/- cash and 16 items of jewelery of his wife having value of approximately Rs.1,25,000/- were missing. It is said in the FIR, the half lunch was prepared, however, the incident may be of about 1.00 pm. In case the articles would recover, he will identify them, with the said description, the report was lodged by the complainant alongwith Mahendra Singh Yadav.

The police completed the investigation and on the next day the accused/appellant was arrested. Upon interrogation, he disclosed about the looted articles, which were seized on his information. On completion of the investigation, challan was filed before the competent Judicial Magistrate, who committed the case to the Court of Sessions. The trial court framed the charge under Section 302, 394 and Section 449 of the IPC. The accused abjured his guilt and demanded for trial putting his defence of false implication because the complainant was having doubt on the character of deceased and also taken the insurance policy in her name, however, to get the insurance claim, complainant himself committed murder of his wife.

Learned trial court relied upon the statement of Om Prakash (PW-1), who had last seen the accused at his home alongwith his wife and children while he was going to Mahoba, PW-2 Manoj Kumar Mishra, who informed the complainant regarding death of his wife, Autopsy Surgeon Dr. J.P. Tiwari who performed the autopsy alongwith his team accompanied by Dr. K.P. Tripathi and Dr. R.K. Khare and proved the postmortem report Ex.P/23 and the statement of Investigating Officer G.L. Singh (PW-14). The trial court also relied upon the testimony of Radhika Prasad (PW-4), witness of the seizure of knife, Dhanendra Kumar Vyas (PW-4), witness of seizure of articles and K.L. Kori (PW-8) who conducted

the test identification parade of the property on receiving the information from the police. The court has also considered the statement of PW-5 Mohan Singh, who is the witness of the seizure of clothes and Krishnakant (PW-10) taken photos and produced its negatives as per Ex.P/21. Considering the statements of the witnesses and looking to all the circumstances finding to prove the commission of offence is recorded convicting the appellant for all the charges and directed to undergo the sentence as described above.

Learned counsel representing appellant has strenuously urged, that no iota of evidence to have doubt for commission of the offence was on accused. It is said the FIR may have written after seizure otherwise it was not presumable that complainant/husband may give description of the looted ornaments specifying the individual description with weight. The ornaments seized have not been brought in evidence before the court to prove the seizure and identification thereof in Court. As per the report of the FSL Ex. P/27, ''F'' is the undergarment of the accused on which the blood stains were found, but the report do not disclose that the blood is similar to the stains found on the bed-sheet marked as ''E'', H3 is petticoat and H4 is the body of deceased. On other articles A, H1, H2, D and G the blood was disintegrated, however, it is opined that even on the articles E, F, H3 and H4 the result is inconclusive. In such circumstances, the prosecution has not proved the commission of offence bringing circumstantial evidence completing the chain. It is urged that said circumstances may be looked into the context of defence of appellant, that complainant was having doubt on the character of the deceased who with intent to take the insurance claim insured her and committed murder, in the backdrop, his earlier wife was also died under the suspicious situation. However, it is urged that conviction of appellant is unsustainable in law.

Per contra, learned Panel Lawyer, representing the respondent-State contends that looking to the statement of complainant, seizure memo and also the statement of Naib Tehsildar who conducted the identification pared of the property coupled with the postmortem report, the finding proving guilt for the charge under Section 302, 394 and 449 of the Indian Penal Code recorded by the trial court established the commission of the offence completing the chain of the circumstances, however, such finding of fact do not warrant interference in this appeal.

After having heard learned counsel appearing for the parties and on perusal of the facts of the case it reveals that complainant Om Prakash (PW-1) lodged the FIR on 15.10.2003 alongwith Mahendra Singh Yadav at 7.30 alleging that he received information at about 6.00 pm while short of 10 kms to Naogaon from Manoj Kumar Mishra regarding commission of murder of his wife at home, however, reached at the place of occurrence, and seen body of his wife lying on the floor. On ascertaining the articles which were looted lodged the FIR at 7.30 pm in the Police Station Naogaon. The first suspicion comes in our mind is the looted ornaments of wife described in the FIR are 16 in number, but the description with weight of looted ornaments may not possibly be known to any of the husband, but with ascertained version in a short-while lodged the FIR. The material brought on record indicates, that appellant was connected due to recovery of those articles. It is not a case of prosecution or of the complainant that complainant was having doubt on the appellant under which he was interrogated. But, on the next fine morning to the date of incident without any basis appellant was picked up by police, and recorded his memo for recovery of looted articles. Nothing is available on record to suspect the residence of the appellant in the house of the complainant, and may commit the loot and murder of Smt. Asha Devi. Thus, looking to the aforesaid facts, arguments

advanced by the counsel for the appellant, that after seizure of the ornaments the FIR has been lodged having much substance, however, the first circumstance not proved by the prosecution by cogent evidence beyond reasonable doubt. The ornaments seized from the appellant though supported by seizure witnesses, and identified by the complainant, but it has not been produced before the court to prove the seizure, and its identification. However, the circumstance connecting the appellant for commission of the offence as brought in the case which may be incriminating against him has not been proved by the prosecution before the court. In absence of bringing the seized property before the court to prove it by seizure witness and its identification the next circumstance has also been proved beyond reasonable doubt. The other incriminating circumstance stands against the appellant is that on his undergarment blood stains were found which co-relate with the FSL report. On perusal of the FLS report, it describes that undergarment of the appellant has been marked as ''F''. ''E'' is the bed-sheet, H3 and H4 are the petticoat and the body of the deceased. The report says human blood was found, but in result as opined it is inconclusive. On the other articles seized from the spot, the blood was insufficient and disintegrated. Thus, looking to it, the circumstance which may complete the chain of commission of offence is also not established beyond reasonable doubt, therefore, it may be observed that while proving the case of circumstantial evidence beyond reasonable doubt the possibility explored by the trial court in the impugned judgment in paragraph 20 and 21 proving the case of the prosecution beyond reasonable doubt is not in accordance to law.

In view of the foregoing discussion now the evidence of prosecution witnesses relied by the trial court requires consideration. As per the testimony of complainant PW-1 Om

Prakash he went alongwith Mahendra Singh Yadav (not examined) at 8.30 in the morning to Mahoba. It is not clear that he visited at which place at Mahoba though on ascertainment of the boundaries through NET the boundary of Mahoba starts from three kilometers from Naogaon while the city is about 50 kilometers from one route and 35 kilometers from other route. The complainant came back at 6.00 pm in the evening and when he was 10 kilometers away from his home Manoj Kumar Mishra (PW-2) intimated him about murder of his wife. He stated in his testimony that appellant intimated him in the night at 1.30 AM that wife of complainant got electric shock. The time of incident is in between 8.30 am morning to 6.00 pm and as per the FIR it is about 1.00 pm in the noon. However, the intimation given by Manoj Kumar Mishra (PW-2) of commission of the offence on receiving the information in the night at 1.30 pm prima-facie do not co-relate it to the statement complainant.

The witnesses of Naksha Panchnama PW-3-Jugal Kishre Vashishta and PW-4-Radhika Prasad are of not much relevance. The seizure witness of the clothes Mohan Singh (PW-5) which were sent for FSL examination is also of no relevance, because the FSL report is inclusive. Dhanendra Kumar Vyas (PW-6) is the witness of seizure of ornaments alongwith Surya Prakash (PW-7), who may depose the seizure of the looted ornaments if produced before the court to prove the seizure of the same ornaments. Similar is the position of identification of the seized property, but because the looted ornaments were not brought before the court however seizure and identification of the looted ornaments have not been proved in Court. The other witnesses Krishnakant Gubrele (PW-10), Vijay Verma (PW-11) and Lalman (PW-12) relates to seizure of certain clothes, that too is not of much relevance in view of the inconclusive FSL report. The autopsy surgeon Dr. J.P. Tiwari (PW-13) though proved the postmortem report Ex. P/23 proving cause of death, but it would not be sufficient until the commission of murder is proved bringing the circumstances to prove the guilt of charge under Section 302 of IPC, which is conspicuously missing in the present case as described above. The investigation conducted by the investigating officer G.L. Singh (PW-14) is also not of much relevance until the circumstances of commission of the offence are established beyond reasonable doubt by the prosecution. In the said context, if the defence put by the accused/appellant is visualized, though denied by the complainant, but looking to all the facts and circumstances of the case it seems relevant in the context. Therefore, as discussed hereinabove, it can safely be concluded that the chain of circumstances to prove either commission of loot of ornaments or murder of Ashadevi has not been proved beyond reasonable doubt bringing cogent evidence however, the finding of conviction and sentence, as directed by the trial court is unsustainable in law.

In view of foregoing discussion, this appeal succeeds and is hereby allowed. The conviction and sentence of appellant for the charge under Sections 302, 394 and 449 of IPC directed by the trial court stands set aside. The appellant is acquitted from the said charges. He be released forthwith, if not required in any other case.