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Judgment
As both these appeals have been filed under Section 374(2) of the Code of Criminal Procedure by the accused Mangal Singh being aggrieved by the common conviction order dated 20.05.1994 passed by First Additional Sessions Judge, Nimad in Session Trial No. 82/1990 and 83/1990, whereby the appellant/accused has been convicted under Section 302 of the Indian Penal Code and sentenced for life imprisonment with fine of Rs. 200/- and in default of payment of fine, additional R.I for one month (two counts), we propose to deal with the matter analogously and dispose of both the appeals by this common order.
The prosecution case, in brief, is that on 19.01.1990, dead bodies of two women identified as Foolbai and Shyambai were found in the field of Rajaram at village Sirpur District Khandwa. They were murdered. On the information, murg
No. 01/1990 and 02/1990 were registered under Section 174 of Cr.P.C. by police Station Moghat Road, Khandwa. During the enquiry, it was found that two ladies from village Udaypur were missing since 18.01.1990. Ramesh (PW-1) identified the deceased as his mother Shyambai and his sister Foolbai. It was revealed that due to illicit relation with the appellant, deceased Foolbai was pregnant and the appellant took Foolbai to Khandwa for abortion along with her mother Shyambai.
Thereafter, they went to village Sirpur. At Sirpur, appellant-accused Mangal Singh committed rape with deceased Foolbai and then strangulated her to death with the help of co-accussed Heeralal. Then, both the accused persons committed rape with Shyambai then killed her. Thereafter, they smashed (crushed) their face with stone to conceal the identity of the deceased.
After due investigation, police registered offence under Section 376, 302 and 201 of the Indian Penal Code against the appellant Mangal Singh and co-accused Heeralal. Charge-sheet was filed. Then case was committed to the Trial Court.
Learned Trial court framed charges under Section 376, 302 and 201 of IPC against the appellant. The appellant abjured the guilt and pleaded that he was falsely implicated in the case and he is innocent. No defence witness has been examined by him.
Learned Trial Court found that no eye-witness was available to prove the offences against the appellant-accused.
On the basis of circumstantial evidence the learned Trial Court convicted the appellants under Section 302 of IPC and sentenced the appellants for life imprisonment with fine of Rs. 200/- and default stipulations.
The appellant has challenged the aforesaid findings before this Court on the ground that the circumstances which were considered by the learned Trial Court did not lead to one and only one conclusion that the appellant is guilty of the offence.
In fact, he was not connected with the crime at all. Learned Trial Court wrongly believed the prosecution story. As per Ramesh (PW-1), his mother Shyambai and sister Foolbai were talking about going to Khandwa with appellant and co-accused Heeralal. They did not speak about Mangal Singh. Ramesh (PW-1) did not specify the date and time as to when the deceased went to Khandwa. When the police came to him then he went to his uncle's house to inquire about his mother and sister. The learned Trial Court convicted the appellants on weak and contradictory evidence. Accordingly, the appellant prayed for acquittal from the charge under Section 302 of IPC.
Heard learned counsel for the parties. Perused the record.
It is not in dispute that no direct evidence is available against the appellant of committing murder of the deceased Foolbai and Shyambai. The case is based on circumstantial evidence. It is settled law that in the case of circumstantial evidence, every circumstance against the accused shall be proved beyond any reasonable doubt to duly establish chain of circumstance. In the present case the deceased were resident of village Udaipur but their bodies were found at Sirpur, District Khandwa. In that reference, the testimony of Ramesh (PW-1) is important. Ramesh is the brother of deceased Foolbai and son of deceased Shyambai. According to him, his father died long
ago. The appellant Mangal Singh frequently visited his house.
Ramesh (PW-1) stated that his mother and sister had told him that they were going to Khandwa along with co-accused Heeralal not with the appellant for treatment of Foolbai who was pregnant at that time. In his cross-examination, he stated that he did not know about the date, day or time when his mother and sister proceeded to Khandwa. Anil (PW-3) deposed that at the request of Foolbai, he went to call appellant-accused Mangal. Mangal told him that he will be coming in the evening and the same was communicated to the deceased Foolbai.
These version itself are not sufficient to establish the ''last seen
together'' theory against the appellant-accused.
Bassu Bai (PW-2), Laxman (PW-8), Roop Singh (PW-9, Ganikhan (PW-12) and Jaswant Singh (PW-18) turned hostile.
They were examined by the prosecution to establish that the deceased went to Khandwa along with the appellant and at different time, the deceased were seen with the appellant. But those witnesses did not support the prosecution case to prove the aforesaid fact. Basiruddin (PW-23) has stated that the co-accused/Heeralal came to his shop at Khandwa seeking help to provide bicycle. Basiruddin has not deposed any fact which was sufficient to prove the involvement of the appellant-accused with the crime.
Thereafter, nobody saw the deceased women going to the spot with the appellant Mangal Singh. The involvement of the appellant Mangal Singh is only based on seizure of some incriminating articles from him. It was alleged that those articles were related to the offence and deceased. Suresh Kumar (PW-34) deposed that as per the memorandum of appellant Mangal Singh as Exh. P/82, a pair of socks has been seized by him from the field of Babu Khan and clothes of appellant Mangal Singh were also seized from his house as per seizure memo Exh.P/85. Panch witness Ismail (PW-13) supported the testimony of Suresh Kumar (PW-34). Further, a shawl (ghussa) and a pair of handgloves has been seized by the police on information of the appellant and co-accused Heeralal by seizure memo (Exh. P/8) from the spot.
Learned Trial Court relied on the testimony of Mohan (PW-6), Ismail (PW-13) and even then held that the prosecution has failed to establish that aforesaid articles linked the appellant with the crime. In paragraph 15 of impugned judgment it was held by the learned Trial Court that on the clothes of appellant Mangal Singh and co-accused Heeralal, blood stains and semens have been found in the FSL report (Exh. P-94). With regard to aforesaid evidence, no explanation has been given by the appellant. On that ground, learned Trial Court wrongly held that it can be presumed that rape was committed by the appellant Mangal Singh as he wanted Foolbai to do the abortion. In paragraph 17 of the impugned judgment Learned Trial Court held that the deceased women were of questionable character. They were in physical relationship with employees, officers and contractors of Punasa Dam. But, in the opinion of this Court, the findings of learned Trial Court is based only on presumptions and suspicions.
In the case of Sujit Biswas Vs. State of Assam [(2013)
12 SCC 406] Hon'ble Supreme Court has held that, "Suspicion, however grave it may be, cannot take the place of proof". The Apex Court has broadly discussed about "proof" as follows:
there is a large difference between something that `may be'' proved, and something that `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, 12. In the present case, there is no direct evidence, eye-
witness available to prove the charges against the appellant, hence, the question for consideration arises as to whether such facts leads to inference of guilt on the part of accused person/appellant. We find so many loopholes in the prosecution evidence with respect to involvement of the appellant. The chain of circumstances is completed only when the circumstance therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. We do not find that all the above circumstance are sufficient to establish, must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.
Therefore, the only circumstance that human blood was found on the clothes of appellant-accused Mangal Singh cannot prove that the appellant alone was the culprit. Seizure of some incriminating articles cannot be complete the chain of circumstantial evidence.
The learned Trial Court has also considered that from the day when the deceased left their home, the appellant and co-accused Heeralal were also not seen by anyone in the village.
In the case Sujit Biswas (supra), the Supreme Court has held that :
"The appellant conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused."
In the above facts and circumstances, there is an important missing link that no one had deposed that they saw deceased women with the appellant at the village or at Khandwa or any other place.
Hence, last seen together theory is not proved in this case.
The learned Trial Court further considered the circumstance against the appellant and co-accused Heeralal that Heeralal had asked Dr. Devendra Kumar (PW-13) about any lady doctor who would treat his sister, and Dr. Devendra Kumar had informed him about Dr. Raksha Sharma at Khandwa. Thereafter, Heeralal took a bicycle on rent at Khandwa and stayed at Trimurti hotel along with his friend in the fake name of Ramsingh. One Ganikhan (PW-12) and Jaswant Singh (PW-18) deposed that two men traveled along with two women in Gani's tonga from Khandwa to Sirpur but learned Trial Court itself specified that they did not identify those four persons.
The learned Trial Court itself held no one established that the deceased women along with the appellant and co-accused Heeralal went to the spot. As per the learned Trial Court, only presence of Heeralal (co-accused) at Sirpur, Khandwa and Udaypur was established. Because the clothes of the appellant and co-accused Heeralal were stained with blood and semen.
Therefore in paragraph 33 of the impugned judgment, the learned Trial Court presumed that the appellant and co-accused Heeralal were involved in sexual exploitation of the deceased, hence after the pregnancy of Foolbai, the appellant and co-accused Heeralal took the deceased women to Khandwa and after committing rape with them, they were murdered by the appellant and co-accused Heeralal.
In case of Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622], Hon'ble Supreme Court has held as under:
"Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence."
In view of the thorough discussions in the foregoing paragraphs, it would be extremely difficult to prove the presence of appellant at the time of the incident on the spot.
No evidence has been produced to link him with the case. We find that the prosecution has failed to establish the link of the appellant with the crime.
In case of Dhal Singh Devagan vs. State of Chhattisgarh [2017 Cr.L.J 1143 (SC)] and Selvam Vs. State [2017 Cr.L.J 565 (SC)], it was held that if prosecution fails to establish the chain of circumstances and prove the guilt of the accused, then accused is entitled to get the benefit of doubt. His conviction is not proper.
Accordingly, we find that the present appeals filed by appellant Mangal Singh are liable to be and is hereby allowed.
Conviction and punishment of the appellant under Section 302 of Indian Penal Code is set aside. He is acquitted from the charges of 302 of IPC . The fine amount, if any, deposited by the appellant be refunded to him. The finding of the learned Trial Court with regard to disposal of seized property is hereby maintained.
Let record be sent with the copy of this order to the Trial Court.