VISHAL GUPTA vs ARTI GUPTA

This judgment shall govern the disposal of aforesaid all criminal appeals as they arise out of a common judgment in which Cr.A No. 839/2003 and Cr.A No.742/2003 have been filed assailing the impugned judgment dated 22/04/2003 passed by Additional Sessions Judge, Multai, in Sessions Trial No.168/2000 whereby the appellants have been convicted under sections 302 / 34 of the I.P.C. and sentenced them to undergo R.I. for life imprisonment along with fine with default stipulation as mentioned in the impugned judgment and Cr.A No. 100/2004 has been filed by the appellants under section 454 of the Cr.P.C, against the impugned order dated 22/04/2003 passed in S.T No.168/2000 whereby the order of confiscation of the seized motorcycle has been passed.

The case of the prosecution, in brief, is that on 01/05/2000 at 1.30 PM in police station Amla, Shambhu (PW-27) Village Kotwar of Village Rateda Khurd lodged a report that a dead body of unknown person has been lying on the agricultural field of Fagnu Gond. On this information Margh No. 31/2000 was registered and during the inquiry of margh an inquest report was prepared and the dead body was sent for autopsy. Near the dead body five buttons of shirt were lying and one broken piece of plastic component was found. The blood stained earth and aforesaid material were seized. As per the autopsy report of the surgeon, death of the deceased was taken place on account of strangulation and nature of the death was homicidal. Before the funeral of the deceased, near relatives have identified him as Chintu, S/o Devrao Pandagre, R/o Borikhurdh. Therefore FIR No. 89/2000 under section 302 of the IPC was registered on 06/05/2000.

During the investigation, it was revealed that there was a dispute between the deceased and co-accused Bablu, who is step brother of the deceased with regard to getting of retiral dues of their father Devraj and accused Bablu hatched a conspiracy with co-accused Anil and Dinesh. On 30/04/2000 deceased was taking part in the program of Pad-yatra and at night there was a camp at Village Jamdehi, where dinner was being prepared and at near about 9-10 PM, two persons came on a motorcycle and make query about the deceased Chintu and informed him that his relative in village Ghoda Dongri met with an accident and thereafter they took the deceased Chintu with them. That persons were identified by Golu (PW-28) and Dashrath (PW-30) as appellants Anil and Dinesh. Appellants Anil and Dinesh were arrested on 16/05/2000 and at the instance of accused Anil one motorcycle and a blood stained shirt were recovered from his house and plastic component of the head of the motorcycle was found broken, which were also seized separately. At the instance of accused Dinesh, the blood stained shirt was recovered from the back side of house of co-accused Anil and two buttons of that shirt were found missing. Accused Anil and Dinesh were medically examined and on their person near about 15 days old injuries were found and seized articles were sent for FSL and as per FSL report, the two buttons which were found near dead body of the deceased was same as was found in the shirt of the co- accused Dinesh and the broken plastic piece which was found near body of the deceased were found to be the part of the broken plastic component of head of the motorcycle recovered at the instance of co-accused Anil. Accused Bablu was found absconded on the date of the incident and some documents with regard to litigation between the deceased and appellant/accused Bablu and his mother Chindi Bai were collected thereafter charge sheet was filed on 30/04/2000 against the appellant/accused. Appellant/accused Bablu appeared during the trial on 09/06/2001.

During the trial against the appellant/accused charge under section 302 of IPC and in alternative 302 read with section 34 were framed. They abjured their guilt and claimed to be tried. Their defence is that they are innocent and falsely implicated on the basis of suspicion.

Learned Trial court after trial on the basis of circumstantial evidence convicted the appellant/accused persons under section 302 read with section 34 of the IPC and sentenced them as mentioned earlier and also confiscated the seized motorcycle.

Against the aforesaid finding, these appeals are filed on the grounds that findings of the learned trial court are contrary to facts and evidence and law. Learned trial court has failed to consider the prosecution case in right perspective. There are material contradictions and omissions in the prosecution evidence. The prosecution case is based on circumstantial evidence and not a single circumstance has been proved beyond the reasonable doubt and the prosecution evidence cumulatively are not sufficient to hold the appellants'' guilty of murder of the deceased Chintu. The evidence of witnesses Golu (PW-28) and Dashrath (PW-30) are not trustworthy. Similarly, the evidence of recovery of the buttons and the broken plastic component of the motorcycle and the blood stained clothes have not been proved. Statements of the prosecution witnesses are contrary to each other.

So far as appellant Bablu is concerned against him there is no evidence except circumstance that he was found absconded after the incident. But that circumstance is not sufficient to implicate a person in a case of murder. Therefore, appellants are entitled to be acquitted of the offences. So far as confiscation order is concerned it has wrongly been passed as the registered owner of the motorcycle is Bheemrao, who is the father of the appellant/accused Anil. There is no evidence that the seized motorcycle was used with his consent or in the knowledge of him and no opportunity of hearing has been given to him before passing the order of confiscation and he has been deprived of the said property. Hence confiscation order also be set aside.

Learned Public Prosecutor opposed the aforesaid contentions of the learned counsel for the appellants and supported the finding of the learned trial court and prayed for rejection of all these appeals.

Having considered the contention of learned counsel for the parties and on perusal of the record, it is found that it is not in controversy that deceased Chintu was died on account of strangulation in the intervening night of 30/04/2000-01/05/2000 in the agricultural field of Fagnu Gond. Apart from it, identification of the dead body has been proved by the statements of Gulabrao (PW-1), Manik Rao (PW-3) and Shanta (PW-4). Their statement have remained unchallenged during their cross examination and they are near relatives of deceased Chintu. They have identified the dead body by seeing the person and clothes of the deceased. Dr. Sameer Shukla Autopsy Surgeon (PW-5) has stated that on 02/05/2000, he found on the dead body ligature marks on his neck, which were antemortem and there were signs of finger print on the neck. Cause of death was asphyxia caused by strangulation and death was taken place within 48 hours from the post mortem and he prepared Postmortem report Ex.P/5 and blood stained shirt, pant, underwear and baniyan were handed over to the police. The aforesaid statement of the medical expert has also remained unimpeachable. Therefore, no hesitation to hold that death of the deceased was taken place on account of strangulation and nature of death was homicidal and person was Chintu, S/o Devram, R/o Village Borikhurdh.

Now the crucial question is that whether the appellant/accused persons have committed aforesaid murder of deceased Chintu. In this regard as per the prosecution story there is no eye witness of the incident and the prosecution has placed reliance on various circumstances to prove the charges against the appellants. With regard to appreciation of circumstantial evidence, the Apex court has laid down certain principles in the case of Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116, which are reproduced here as under :-

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ''must'' or ''should'' 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.

In the light of the aforesaid principles, the evidence of this case is to be appreciated.

The learned trial court has considered the following circumstances to hold guilty of the appellant/accused:-

(i). The deceased was seen alive last in the company of appellants/accused Anil and Dinesh;

(ii). On the place of the incident two buttons of the shirt of appellant/accused Dinesh were found;

(iii). At the spot one broken piece of plastic component of the motorcycle were found and the motorcycle was recovered at the instance of appellant/accused Anil;

(iv). At the instance of the appellant/accused Anil and Dinesh, the blood stained shirts were seized; v. On the date of the incident , appellant/accused Anil and Dinesh sustained some injuries on their person and they have no explanation of them; (vi). Appellant/accused Anil and Dinesh confessed the crime before Shiv Prasad (PW-2);

(vii). Appellant/accused Bablu was absconding after the incident till 09/06/2001;

Learned counsel for the appellants have contended that the statements of Golu (PW-28) and Dashrath (PW-30) with regard to identification of appellant Anil and Dinesh are not reliable. On perusal of the record, it is found that both the witnesses have said that on 30/04/2000 they were in the Pad-yatra program and deceased Chintu was also in the program and at the time of night along with other persons and they stayed in a government school of village Jamdehi where dinner was being prepared. During that time two persons came on a motorcycle and asked about the deceased Chintu and informed that one near relative of deceased Chintu met with an accident and thereafter they took the deceased with them on the motorcycle. Golu (PW-28) has stated that he cannot definitely say that the appellant/accused Anil and Dinesh are the same persons or not who took the deceased from the government school on the relevant date. Further he stated that he identified the aforesaid persons in the jail and put his signature on the identification memo Ex.P-8. The aforesaid statement of the witnesses cannot be considered that the witnesses have identified the appellant Anil and Dinesh as the persons who took the deceased from the government school. Similarly, Dashrath (PW-30) who was Sarpanch of the Area at the time has stated that appellant Anil was one person out of two, who took the deceased. He further stated that he also identified the appellants in the jail and put his signature on the identification memo Ex.P-8. This witness did not identified accused Dinesh and his statement with regard to identification of appellant Anil is also not reliable. According to the prosecution story, appellant Anil was not known to him. Dashrath (PW-30) was not familiar of appellants Anil and Dinesh, therefore the identification parade was conducted. While in the court statement the witness has claimed that he know appellant Anil but during the investigation and in his police statement Ex. D-1 he has not disclosed this fact and this statement is contrary to his police statement Ex.D-1. In the aforesaid circumstances, the testimony of Dashrath (PW-30) is also not reliable and not sufficient to prove the fact that the appellant Anil or Dinesh were the persons who took the deceased from the government school on the motorcycle.

M.L Dhakad, Assistant Sub Inspector (PW-14) has stated that on 01/05/2000 at the time of preparation of inquest report, near the body of the deceased, 5 buttons spread at different places were found and one broken piece of plastic component, which appear to be the part of the motorcycle, were seized vide seizure memo Ex.P-17 but other prosecution witnesses who were present at the time of seizure Lallu (PW-16), Fagnu (PW-17, Ronya (PW-18) and Rampal (PW-33) have denied the aforesaid facts that at the time of seizure there were buttons and the broken piece of plastic were lying and were seized from the spot. The aforesaid witnesses have not been declared hostile and nothing appear to be deemed that these articles were lying on the aforesaid place.

Apart from it, so called broken part of the motorcycle which was sent for FSL compared with broken plastic piece found on spot was the part of the motorcycle seized from the appellant Anil is also doubtful as the prosecution witnesses Rakesh (PW-20) and Sanjay (PW-21) have said that they saw the motorcycle on 15/05/2000 in the police station Amla and on 16/05/2000 they opened showcase of headlight on the instructions of police and no part was found broken. In such circumstance, statement of Investigating officer H.L Sharma (PW-22) with regard to fact that one corner of plastic component of headlight of motorcycle was broken and seized as per seizure memo Ex.P-19 is not reliable.

Apart from it, as per the prosecution witness Gendro (PW-26) the owner of the seized motorcycle was Bheemrao, who is father of the appellant Anil and the motorcycle has been seized at the instance of appellant Anil from the house in which other persons also resided and the motorcycle was kept in the house ordinarily visible place. In other words not in hiding condition. Therefore, other family members have knowledge about the motorcycle. In such circumstance, it cannot be said that only appellant Anil had the knowledge about the motorcycle which was allegedly used in the crime. Therefore, mere recovery of the motorcycle at the instance of appellant Anil it cannot be said that it can only be used by appellant Anil in the crime. It can be used by his father or other family members who are not accused in this case. In other words the recovery of the motorcycle at the instance of appellant Anil even consider to be used in the crime it cannot be said that appellant Anil was only person who can only use it in commission of the crime of the murder.

So far the recovery of the blood stained shirts at the instance of appellants Anil and Dinesh are concerned, in this regard statement of Investigating Officer H.L Sharma (PW-22) is not reliable. It is unnatural that after 10 days of the incident, a person committed crime of murder would keep the blood stained clothes in the house. Apart from it, the witnesses of seizure of the blood stained shirts and the motorcycle at the instance of aforesaid accused persons are concerned they have not supported statement of Investigating Officer. One witness Jivandulal (PW-31) has not stated anything with regard to recovery of article with him so far other witness Dashrath (PW-30) is concerned he was the Sarpanch at the time has categorically said that he did not go to the house of appellant Anil or Dinesh. Police bring one motorcycle and clothes in his house and by showing him police said that these articles have been seized from the appellant Anil and the seizure memo was prepared. This witness has not been declared hostile. Therefore, with regard to the seizure of the articles, the contradictory material and the statements are available on record, which made all the aforesaid proceeding of the recovery of the articles unbelievable and doubtful.

The buttons which were found on the spot were the same button which were missing from the shirt recovered at the instance of appellant Dinesh is also not found to be proved beyond the reasonable doubt as FSL report Ex.P-33 discloses that their radius and thickness were not the same as in comparison with the buttons found on the shirt concerned. In such difference it cannot be inferred that the button found from the spot and the button found missing from the shirt of appellant Dinesh were the same.

With regard to aforesaid recovery of the articles one more thing is material. The seized articles have not been produced and got identified before the trial court from any witness of seizure memo including the Investigating Officer. In such circumstance, it cannot be said that the recovered buttons and plastic piece or clothes were the same which were sent for F.S.L and the report of F.S.L is related to the articles which were seized as per the prosecution story.

In view of the aforesaid discussion, the recovery of blood stained shirt and broken piece of plastic component of the motorcycle which belong to the appellant Anil are not found to be proved beyond reasonable doubt. Learned trial court has ignored the aforesaid aspects of the evidence. Prosecution has also relied on another circumstance, which is relating to presence of injuries at the time of the incident on the person of appellants/accused Anil and Dinesh and there is no explanation of them.

As per statement of Dr. Sameer Shukla (PW-5) on 16/05/2000 appellant/accused Anil was examined by him and he found heeled wounds on his neck, left wrist, left palm and left forearm, probably which were caused by hard and blunt object within 15-18 days before and prepared MLC report Ex.P-7. He also examined appellant/accused Dinesh and he found heeled wounds on his left hand, left forearm and on left elbow , probably which were caused by hard and blunt object within 15-18 days before and prepared MLC report Ex.P-6. These statement of medical expert establish the fact that there were injuries on the person of Anil and Dinesh at the time of the incident but as stated by the doctor it may also be caused two days before the incident. Apart from it, mere presence of the injuries on the body of the person, it cannot be inferred only that the same were caused during the incident or scuffling took place with the deceased on the spot. The blood stained shirts have been recovered from appellant Anil and Dinesh and as per FLS report Ex.P-33 on which human blood have been found that blood stain may be of the injuries found on the person of accused Anil and Dinesh as in the FSL report blood group has not been ascertained and this circumstance explains presence of the blood stain of the appellant/accused on the shirt as alleged to recovered at their instance. In other words, the presence of injuries on the person of appellants Anil and Dinesh explains the circumstance in which their shirt were found to be blood stained.

Learned trial court has also placed reliance on another witness Shiv Prasad (PW-2), who has said that near about the place of the incident at 11 PM he was going from the crusher machine of Gulab Rao (PW-1). In the way appellant Anil and Dinesh met and they were talking that they have finished Chintu and now money is to be taken from Chindhi Bai (who is mother of the appellant Bablu) and on the same day he went to Sarini and came back within two days and hear about murder of Chintu. The aforesaid statement of the witness is unnatural as no ordinary person would confess before the third person with regard to commission of murder without any occasion. Apart from it, witness has also admitted that he did not disclose the aforesaid fact to the near relative of the deceased while he met them and also did not disclose to the police upto 15 days without any reason. Testimony of such witness cannot be relied.

In view of the aforesaid discussion, it is clear that none of the aforesaid circumstances has been found to be proved against the appellant Anil and Dinesh. So far as appellant Bablu is concerned there is nothing against him which may be considered for hatching conspiracy with co- accused Anil and Dinesh except that between the deceased and his mother there were dispute with regard to getting of retiral dues of his father. The statement of Shiv Prasad (PW-2) is also not against him. It suggest conspiracy of appellant''s Bablu mother Chindhi Bai. The circumstance that he was absconding after the incident only creates suspicion but cannot be considered to connect him with the crime of murder of the deceased and not suggestive of the fact that appellant Bablu is the person who committed the death of the deceased by hatching conspiracy or common intention with other appellant/accused persons. Learned trial court without considering the relevancy and sufficiency of the material against the appellant/accused Bablu mechanically held him guilty. While there is nothing against him to suggest the fact that he had common intention with co-accused Anil and Dinesh to commit murder of his step brother Chintu. Hence the finding of the learned trial court is not sustainable.

In view of the aforesaid discussion, it is found that the prosecution has failed to establish the chain of circumstances, which shall establish the facts consistent only with the hypothesis of guilt of the accused and they do not exclude any other hypothesis except the one sought to be proved. In other words the prosecution has failed to establish the chain of circumstances which could link the appellants with the crime of murder of deceased Chintu and the learned trial court has over looked the serious lacuna in the prosecution story and committed serious error by relying on the aforesaid circumstantial evidence, which were not proved beyond the reasonable doubt.

Resultantly, the appellants'' appeals are allowed and their conviction and sentence under section 302 read with section 34 of the IPC is set aside. Resultantly, Cr.A No.742/2003 and Cr.A No.839/2003 are allowed and the impugned judgment of conviction and order of sentence passed against the appellants are set aside. Appellant Bablu in Cr.A No.742/2003 and appellant no.1 Anil and appellant no.2 Dinesh in Cr.A No.839/2003 are concerned, they are on bail. Therefore their bail bond be discharged.

So far as order of confiscation of the motorcycle is concerned it is also set aside and the motorcycle be returned to its registered owner applicant Bheemrao. A copy of this order be sent to the concerned trial court for necessary action.