Shibbu @ Shivcharan vs State of Madhya Pradesh

G.D. Saxena, J.—This appeal u/s 374(2) of the Code of Criminal Procedure 1973 has been preferred by the accused/appellant against a Judgment dated 14th July 2009 delivered in Sessions Trial No. 249/2008 by the Sessions Judge Guna (M.P.), convicting thereby the appellant for causing murder of his own wife, namely, Smt. Santobai, which is an offence punishable u/s 302 of I.P.C. and sentencing him to suffer imprisonment for life with a fine of Rs. 200/- and in default to undergo additional rigorous imprisonment of one month. The accused also stood guilty for causing disappearance of evidence by burning the body of deceased with an intention to screen himself from the legal punishment, which is an offence punishable u/s 201 of I.P.C. and sentenced to suffer four years'' rigorous imprisonment with a fine of Rs. 500/-, in default of payment of which to serve one month''s rigorous imprisonment, more. Fine amount of Rs. 700/- (Rs. Seven Hundred Only) was deposited in the trial court on the date of impugned judgment on 14th July 2009. Briefly narrated the prosecution case is that in the intervening night of 7th and 8th May, 2008 at village Sirsi, accused Shibbu @ Shivcharan in an drunken state beat his wife by a Lathi and caused untimely her death. The dead body was cremated secretly at the top of hill. On information by Ram Krishna, brother of accused to Rajendra brother of deceased, a Marg report was lodged about death of Santobai at Police Station Sirsi. After making an inquiry into marg, on 13th May 2008, an F.I.R. was lodged against accused at Crime No. 20/08. The investigation was set in motion. The ashes and bones from pyre were collected and sent for examination to the Department of Forensic Medicine and Toxicology of G.R. Medical College, Gwalior. Case-diary statements of witnesses were recorded. Thereafter, the accused was arrested and on his information, the weapon (Lathi) was seized. After investigation, the charge sheet was filed before the Criminal Court. On committal, the Sessions trial commenced and after recording the evidence, the accused-appellant was convicted and sentenced for commission of offence under Sections 302 and 201 of I.P.C., hence this appeal.

It is contended by the learned counsel appearing for the appellant that the judgment of conviction and sentence recorded by the Trial Judge is against the peculiar facts, evidence of the case and the law, hence, same is liable to be set aside. It is submitted that the statements of the material witnesses do not disclose that accused/appellant had committed murder of Santobai, his own wife. It is further argued that the medical evidence in this case also does not smear that the death of deceased was homicidal in nature. Still, the trial Judge has erred in not following the settled proposition of law which lays down that on the basis of doubts, no one can be convicted. On these premised submissions, it is prayed that by allowing the appeal, the accused may be acquitted of the alleged offence.

The learned Public Prosecutor appearing for the respondent/State, on the other hand, supported the impugned judgment and contended that there is no illegality or perversity in the findings arrived at by the learned trial court. Hence, it is prayed that the appeal may be dismissed.

Heard the learned counsel for the parties and also perused the impugned judgment and the evidence on record.

The question to be considered is whether the accused-appellant has done an act by doing which he has caused the death of the deceased ?.

To prove the charges for commission of offence punishable under Sections 302 and 201 of I.P.C., the prosecution has examined as many as 12 witnesses. The case of the prosecution is totally based on the circumstantial evidence. It is admitted fact that deceased Santobai, was wife of accused-appellant. The material witnesses are Rajendra (PW-1) brother of deceased, Karan (PW-2) cousin of deceased, Parmi (PW-8), father of the deceased and Anandibai (PW-9), mother of the deceased.

Rajendra (PW-1) brother of deceased, deposed that 2-3 months'' ago, Ramkrishna (PW-3), brother of accused came to him alongwith three children and said that accused Shivcharan killed Santobai. Thereafter, he and Karan visited village Sirsi but he could not see Santobai alive there. They lodged the FIR (Ex. P/1) and Marg report (Ex. P/2) at Police Station Sirsi that accused in an drunken condition beat Smt. Santobai and after her death burnt her body at the hill.

Ramkrishna (PW-3), brother of the accused and his wife Pinkibai (PW-4) however denied that accused Shivcharan in an drunken state killed his wife (the deceased). Ramkrishna (PW-3) further denied to have gone alongwith Rajendra in search of Santobai. These witnesses did not support the prosecution case hence were declared hostile.

Parmi (PW-8) and Anandibai (PW-9), father and mother of the deceased deposed that accused in drunken condition usually beat his wife. But they denied to make any report about such behaviour of the accused with their daughter to the police. These witnesses further stated that before four months ago, Ramkrishna came to them and told about killing of their daughter Santobai by the accused.

Miss Saroj (PW-5) a child witness, who is daughter of the deceased also denied the prosecution version that accused (her father) in an drunken condition ever beat her mother and he killed her mother with a wooden stick. She stated that her uncle Ramkrishna lived in her neighbourhood. She admitted that at the night of incident due to fear she slept in the house of her uncle. However, she denied that her father beat her mother. Afterwards, she stated that since her father had beaten her mother, she and her brother were in fear and so they slept in the house of her uncle. She also deposed that her mother was mad and usually left her house.

Mitthulal (PW-6) is an independent witness, who did not support the prosecution version.

Dr. J.N Soni (PW-11) Professor and Head of Department in Forensic Medicine Department of G.R. Medical College Gwalior deposed that on 23rd May 2003, Police Constable No. 429, namely, Dheeraj Singh of Police Station Sirsi district Guna brought some burnt bones in open carton said to be of Santobai, aged 30 years of Vamangaon, Police Station Sirsi. He examined the bones collected from pyre weighing near about 1730 grams. Bones were of various parts of body of different sizes. After examination of bones, he opined that all bones were belonging to one female, aged 30 to 40 years. He could not ascertain the mode of death and period of death. Report (Ex. P/15) is written and signed by him.

B.P. Tiwari (PW-12) deposed that on 13th May, 2008 when he was posted as an In-charge of the police station, complainant Rajendra (PW-1) came to the police station and got recorded the report (Ex. P/1) of the incident. On that day, he also recorded the statements of witnesses Rajendra and Karan. After arrest of the accused, he made an inquiry regarding the weapon of offence and on his information vide Ex. P/13, he seized the weapon, i.e., Lathi, vide seizure-memo (Ex. P/14).

On perusal of the statements of the witnesses of the case, it appears that entire prosecution rest on circumstantial evidence. Statements of complainant Rajendra (PW-1) and Karan (PW-2) disclosed that witness Ramkrishna (PW-3), brother of the accused informed to these witnesses that accused Shibbu killed his wife Santobai. However, Ramkrishna did not support the version of the complainant and turned hostile. Even Saroj (PW-5) daughter of the deceased and accused, who as prosecution was material, did not support the case. Two inconsistent versions appear from her entire testimony, so no reliance can be placed on her evidence and she cannot be said to be true witness. Further, on looking to the medical evidence, it is not proved that the death of deceased was homicidal. Even as per postmortem report, no opinion about duration and cause of death was given. Not only that with regard to the motive, the prosecution hopelessly failed to prove the same as there is absolutely no evidence in support of it. The only circumstance appearing against the accused in this case is that a lathi was seized from him, which was alleged to have been used by the accused as a weapon of crime.

The question therefore is whether this circumstance alone is sufficient to warrant a conclusion that the appellant committed the murder of his wife.

It is well settled that in cases where the evidence is of a circumstantial nature, the chain of evidence must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused person. In Hanumant Vs. The State of Madhya Pradesh, the Hon. Supreme Court laid down the rule regarding the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. Same has been uniformly followed in a large number of later decisions. In Sharad Birdhichand Sarda Vs. State of Maharashtra, the Hon. Apex Court laid down five principles which constitute the ''Panchasheel'' of proof of a case based on circumstantial evidence and held that following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ''must or should'' be and not ''may be'' established.

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) The circumstances should be of a conclusive nature and tendency.

(4) They should exclude every possible hypothesis except the one to be proved, and

(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

Bearing the above principles in mind, let us see whether the guilt of the appellant has been proved beyond reasonable doubt. In the light of the discussions on the evidence on record, in our considered opinion, merely on the basis of recovery of lathi from accused, same alone does not by itself lead to the irresistible inference that the accused-appellant must have murdered his wife. It may at best raise suspicion but suspicion, however, strong, cannot take the place of legal proof.

On this point, it may further be relevant to refer the decision in the case of G. Parshwanath Vs. State of Karnataka, wherein it has been held:-

The evidence tendered in a court of law is either direct or circumstantial. Evidence is said to be direct if it consists of an eye-witness account of the facts in issue in a criminal case. On the other hand, circumstantial evidence is evidence of relevant facts from which, one can, by process of intuitive reasoning, infer about the existence of facts in issue or factum probandum. In dealing with circumstantial evidence there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. However, it is not derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances cannot fail. Therefore, many a times it is aptly said that "men may tell lies, but circumstances do not". In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The Court thereafter has to consider the effect of proved facts. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court.

In Brijesh Mavi Vs. State of NCT of Delhi, at page 52 the Hon. Apex Court again held:-

The prosecution, in the absence of any direct evidence, has sought to build up its case on the basis of circumstantial evidence.

The principles of law governing proof of a criminal charge by circumstantial evidence need hardly any reiteration. From the several decisions of this Court available on the issue the said principles can be summed up by stating that not only the prosecution must prove and establish the incriminating circumstance(s) against the accused beyond all reasonable doubt but the said circumstance(s) must give rise to only one conclusion to the exclusion of all others, namely, that it is the accused and nobody else who had committed the crime.

In Sarda''s case (supra) the Hon. Supreme Court has further observed that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. Where the links in the chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court. We respectfully agree with this view. We have already seen that the chain is incomplete and the only circumstance proved by the prosecution is insufficient to point to the guilt of the accused with reasonable definiteness.

In view of what has been stated above, it must be held that the prosecution has failed to prove the charge u/s 302 of I.P.C., against the appellant beyond reasonable doubt and the judgment of conviction and sentence passed by the trial court cannot be sustained. In the result, we allow the appeal and set aside the judgment of conviction and sentence passed by the Trial court. The appellant who is in jail be forthwith set at liberty, if not wanted in connection with any other case.