HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE D.B: HON'BLE SHRI JUSTICE [ENTITY] & HON'BLE SHRI JUSTICE [ENTITY] CRIMINAL APPEAL 128 of 2006 [ENTITY] S/o [PRECEDENT] Whether approved for reporting: Yes/No Shri [ENTITY], learned counsel for the appellant. Shri [ENTITY], learned Govt. Advocate for the respondent/State. JUDGMENT
(Delivered on 23/11/2017) Per: [ENTITY], J.
1. Being aggrieved by judgment and order dated 14.12.2005 passed in [CASE NUMBER] by Session Judge, District Jhabua whereby the learned trial Court has held the appellant guilty for the offence punishable under [SECTION] of [ACT] and sentenced him for life imprisonment with fine of Rs.2,000/- and in default of payment of fine, to further undergo R.I. for six months, the appellant has preferred the present appeal.
2. In this case the appellant is brother-in-law (Dewar) of the deceased, [ENTITY] PW/1 is her cousin (son of mama), [ENTITY] PW/5 is her sister-in-law (Nanand & sister of the appellant, [ENTITY] PW/6 is her Nanandoi, [ENTITY] PW/4 is her daughter.
3. The prosecution case in brief is that on 17.07.2005, in the evening, the deceased [ENTITY] slapped her daughter [ENTITY], enraged by this she left house without informing her. Worried [ENTITY] asked the appellant to accompany her to search [ENTITY]. Looking for her at the possible places, they reached to the house of [ENTITY] at village Dolikhali and found [ENTITY] there. They tried to take her back home, but she did not agree and told them that she will come in the next morning, then the deceased and the appellant proceeded for their house from village Dolikhali to Kali Sarai. At about 10:00 P.M., in the night, the appellant went to [ENTITY] and informed him that when [ENTITY] refused to come with them, the deceased proceeded for her house at Kalisaray. The appellant stayed there due to some work. After finishing work when he was also coming back home, on the way he saw dead body of [ENTITY] was lying on the ground in Khodra nullah of Khetiya. But the accused refused to accompany him ([ENTITY]) to report the matter to the police. Therefore, [ENTITY] alongwith one [ENTITY] went to the Police Chouki, Jhaknavda and intimated tha police at about 2:00 A.M. The Police registered Merg Intimation No.24/05 under [SECTION] of [ACT] (Ex.P/12).
4. The police investigated the matter, visited the spot in the morning at about 8:00 A.M., prepared Punchnama Lash (Ex.P/2) and spot map, seized slippers of the deceased, sent dead body for post-mortem. Dr. [ENTITY] (PW-13) performed post mortem and opined that the death was due to throttling and was homicidal in nature. The Police arrested the accused on 20.07.2005 and identified some scratch marks caused by nails on the neck of the appellant. The Police suspecting that these marks might have been caused by the deceased in his defence during brawl and got him examined from the doctor. Charge-sheet was file after completing the investigation.
5. The appellant was charged under [SECTION] and [SECTION] of [ACT]. He abjured his guilt. After trial, the learned trial Court acquitted the appellant from the charges under [SECTION] [ACT] and held him guilty under [SECTION] of [ACT] and punished him as stated in para no.1, above.
6. The appellant has preferred the present appeal on the grounds that the judgment and order of the learned trial Court is contrary to law and the facts of the case. The findings of the learned trial Court neither legal nor proper nor correct. The learned trial Court has committed error in believing the prosecution witnesses and discarding the version of the defense. It has drawn unwarranted inference and did not consider material omissions and contradiction in the statements of the prosecution witnesses. Therefore, it is prayed that the judgement and order be set aside and the appellant be acquitted.
7. Learned public prosecutor has supported the judgment and order of the trial Court.
8. We have considered rival contentions of both the parties and have gone through the record.
9. No challenge is made by the appellant to the recovery of the dead body, the death of the deceased and the fact that the death was caused due to asphyxia caused by throttling and that the death was homicidal. The post-mortem was conducted on 18.07.2005 and according to Dr. [ENTITY], the death was caused within 24 house of the post-mortem. Thus, there is no doubt that at or about the alleged time, date and place of the incident, the deceased was died and her death was homicidal in nature.
10. There is no eye witnesses in this case and the entire case of the prosecution is solely depends on the circumstantial evidence.
11. The only circumstance, which the prosecution could produce before the trial Court is that the deceased was last seen alive in the company of the accused. To establish this circumstance, the scratch marks found on the neck of the accused have also been brought on record.
12. [ENTITY] (PW-4)(daughter of the deceased), [ENTITY] (PW-5) (Sister-in-law (Nanand) of the deceased and who is also sister of the appellant) and [ENTITY] (PW-6) brother-in- law ([ENTITY]) of the deceased) have stated and the appellant has not challenged that on the date of incident [ENTITY] went to the house of her aunt ([ENTITY] at village Dolikhali and the appellant alongwith the deceased went to the house of [ENTITY] at Dolikhali in search of [ENTITY]. They tried to take her home back, but she refused and stated that she will come in the next morning, the deceased and the appellant left the house of [ENTITY] and proceeded for their village and next morning they all came to know that the deceased is died in the night near a nullah in the forest. Thus, without any doubt, it is established that soon before her death, the deceased was in the company of the appellant.
13. [ENTITY] (PW-1) who had reported the matter to the police has stated that the deceased was his cousin (daughter of maternal uncle). He further stated that after the incident, the appellant came to him in the night and revealed that he went with the deceased to village Dolikhali and when they were coming back and were on the way, some unknown miscreants have caught them. Somehow he managed to escape but they killed [ENTITY]. On receiving this information, [ENTITY] alongwith [ENTITY], [ENTITY], [ENTITY] and many other villagers went to the spot and found her dead body lying in the nullah. [ENTITY] immediately informed the matter to the police. The police also visited the spot in the night, prepared Panchnama Lash and spot map (Ex.P/2 & P/3) and seized slippers of the deceased (Ex.P/4).
14. One thing is clear from this statement that the accused/appellant himself informed about the incident to [ENTITY] in the night itself. This witness further stated that the appellant had made clamor in the village in the night that some miscreants had caught both of them, but somehow he could manage to escape. [ENTITY] (PW-3) has supported his statement. They all went to the forest and found the dead body of the deceased [ENTITY]. They approached the police. All the time the appellant accompanied them everywhere. He never tried to run away.
15. [ENTITY], in his statements, had stated that the appellant disclosed before him that some unknown miscreants had beaten him also and he also sustained injuries. It has also come on the record that the deceased was a widow and she was living with the appellant. Their relations were cordial and no dispute was there between them (statements of [ENTITY], [ENTITY], [ENTITY], [ENTITY] & [ENTITY]).
16. The conduct of the appellant appeared from the statements of all these witnesses, who have not been declared hostile, shows his the natural behaviour just after the incident. Injuries found on the body of the appellant are also duly explained by the prosecution witness [ENTITY] (PW-1) himself.
17. In first in time the Merg intimation it is mentioned that the deceased left the house of her [ENTITY] one hour prior to the appellant but in the Court the witnesses has changed the sequence and have stated that they both have proceeded together from the house of [ENTITY]. As per Merg intimation the appellant had seen the dead body of the deceased while as per their Court statements the appellant reveal before them that some miscreants caught them both and somehow the appellant could manage to escape.
18. [ENTITY] has stated that on 18.07.2005 when he intimated the incident to the police, the appellant was with them at Police Chawki and after recording the intimation, the police allowed them to go by detained the appellant, while as per arrest memo, the appellant was arrested by the police on 20.07.2005. Nothing is mentioned in the Merg intimation that at that time some injury or scratch mark were noticed on the neck of the appellant. None of the witnesses [ENTITY], [ENTITY], [ENTITY] or [ENTITY], who accompanied the police at the time of seizure of the dead body, have stated that they have ever seen any injury marks on the neck of the appellant.
19. Thus, both of the circumstances putforth by the prosecution becomes doubtful. If we consider the Court statements of the witnesses as true, then it appears that the incident was committed by some unknown miscreants, who also caused injuries to the appellant. If we consider the story narrated in the Merg, which though could not be brought on record, then at the time of the incident, the appellant was not with the deceased. Hence with both the angles the prosecution case does not appear to be trustworthy.
20. Considering the relations between the accused and the deceased, conduct of the accused just after the incident, explanation of injuries of the appellant, absence of motive, absence of seizure of any incriminating article coupled with the fact that the charge of the rape was also not found proved by the learned trial Court, nothing suspicious emerged out which could lead to the conclusion of the guilt of the appellant. The learned trial court has appreciated the evidence only on the basis of bare facts without considering the circumstances appeared in the statements of the witnesses and only on the presumption that the appellant is guilty as he was last seen in the company of the deceased. Such cryptic appreciation cannot be accepted as correct. When we consider the last seen theory in the context of surrounding circumstances, two views appears to be possible and in that case certainly benefit will go to the appellant.
21. It is now well settled that last seen theory alone is not sufficient to uphold guilt of the accused. In a recent judgement passed in [PRECEDENT] the Hon'ble Supreme Court has made it clear that:
"18. The circumstance of last seen together cannot by itself form the basis of holding the accused guilty of the offence. In Kanhaiya Lal v. State of Rajasthan (2014) 4 SCC 715 :
(AIR 2014 SC (Supp) 788, Paras 12 and 14) this court held that:
"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.
15. The theory of last seen-the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v.
State of Rajasthan [(2010) 15 SCC 588]."
In [PRECEDENT] this court held that:
"31. Thus the evidence that the appellant had gone to [ENTITY] in the evening of 19-7-1985 and had stayed in the night at the house of deceased [ENTITY] is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded."
19. This Court in [PRECEDENT], held that the failure of the accused to offer any explanation in his statement under [SECTION], [ACT] alone was not sufficient to establish the charge against the accused. In the facts of the present case, the High Court committed an error in holding that in the absence of any satisfactory explanation by the accused the presumption of guilt of the Accused stood un-rebutted and thus the Appellants were liable to be convicted.
20. Mr. [ENTITY] relied upon [PRECEDENT] to buttress his submission that the circumstance of last seen together coupled with lack of any satisfactory explanation by the accused is a very strong circumstance on the basis of which the accused can be convicted. It was held by this Court in the above judgment as follows:-
"It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. We are, therefore, of the opinion that this is a case which satisfies the standards requisite for conviction on the basis of circumstantial evidence."
21. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. "
22. Considering the totality of the facts and evidence, in our view, the circumstances relied upon by the prosecution are not established by convincing evidence and they are not sufficient to hold the accused/appellant guilty of the offence charged against him. The evidence adduced by the prosecution falls short of reliability and unsafe to base conviction. The prosecution has failed to establish the guilt of the accused respondents beyond reasonable doubt and certainly benefit of doubt is to be given to the accused. Therefore, the appeal allowed. The judgement and order passed by the learned trial Court is set-aside. The appellant is acquitted from the charge under [SECTION] [ACT]. He be set at liberty immediately, if not required in any other case.
23. The order of the learned trial Court regarding disposal of the property is hereby confirmed.
([ENTITY]) ([ENTITY]) JUDGE JUDGE amit Digitally signed by [ENTITY] Date: 2017.11.25 16:23:58 -08'00'