Case: Ashish Batham Vs. State of Madhya Pradesh

the bushes near the Hanuman temple. Apart from the story striking to be stale, unnatural and unbelievable that after the occurrence the appellant had gone to the temple area to hide these two things though he was said to have been going towards the bus stand, suggestive of the fact that he was only leaving for Bhopal. The delayed recovery that too after the second remand of the appellant cast serious doubts about the said circumstance itself to be true or accept to have been proved. Though PW-10, the panch witness would claim that the appellant signed the disclosure statement Ex. P-23 in his presence, the same really does not bear any signature of the appellant. This fact taken together with the deposition of PW-10 that the appellant was found handcuffed and his face was covered and the non-examination of the other witness in spite of such doubtful version, the credibility of the so-called disclosure statement as well as the alleged recovery becomes seriously doubtful. (14) Considering also the number, nature and manner of injuries found inflicted on the body of the two girls as also the deposition of PW-18, the Doctor, who conducted the post-mortem, serious doubts, in our view, could reasonably be said to arise to engulf the credibility of the prosecution theory, as a whole as to whether it was possible at all for a single person to inflict so many injuries with one knife and within such a short span of time left between PW-2 and his wife leaving from the house and returning from their morning walk. It is also doubtful as to whether one person could have, without getting himself hurt, or receiving any form of injury during altercation, in retaliation from the two girls, inflicted so many injuries. In this context, the absence of any explanation to the blood stains found on the terrace of the house also assumes significance and considerably affect the veracity of the case projected by the prosecution. (15) The learned counsel for the respondent strenuously contended that though each of the above circumstances may not by themselves point towards the guilt of the appellant, but taken together, lead to the only inevitable and inescapable conclusion that it is the appellant who committed the murder of the two daughters of PW-2 cannot at any rate, be doubted. We have carefully considered this aspect of the matter also despite the doubtful nature of the very circumstances themselves to be really facts established, but could not be persuaded to either agree with the learned counsel for the respondent or approve the findings of the courts below. On a careful reading of the relevant portions of the judgment of both the learned Sessions Judge as well as the Division Bench of the High Court, to which our attention has been invited by the learned counsel appearing on either side, we are constrained to place on record that both the courts below have committed the same serious error in presuming the guilt of the appellant first and try thereafter to find out one or other reason to justify such a conclusion without an objective, independent and impartial analysis or assessment of the materials, before recording a finding on the guilt of the appellant. Contradictory standards or yardstick and lack of coherence is found writ large in the manner of consideration adopted by the courts below. In the case of evaluation of the evidence, it could be seen so patently that insignificant things have been unduly magnified and serious lapses and withholding of vital materials and relevant witnesses have been unjustifiably glossed over despite the fact that the production of those materials would have really helped to fix the guilt or otherwise of the appellant concretely and bring about the real truth about the matter. We find, on going through the materials on record and the judgments of the courts below, the case before us to be an ideal and illustrative one to justify the apprehensions often reiterated by this Court that the mind was apt to take pleasure in adopting the circumstances to one or the other circumstance without straining a little to supply even the links found wanting to render them complete. The fact that at a busy place like the one in and nearby the Hospital area, a thickly residential with surroundings as spoken to by the witnesses such murder of two girls could be said to have been executed without attracting the attention of anyone nearby or regular passersby at that point of time in the area also seriously improbabilise the prosecution version that the appellant alone was and could have been the culprit. We are also of the view that the doubtful and suspect nature of the evidence sought to be relied upon to substantiate the circumstances in this case themselves suffer from serious infirmities and lack of legal credibilities to merit acceptance in the hands of Courts of Law, since the very circumstances sought to be relied upon themselves stood seriously undermined the existence or proof of one or more of stray circumstances in the chain, break and dislocate the link in such a manner so as to irreversibly snap the link in the chain of circumstances rendering it difficult, inappropriate as well as impossible too, to consider even one or more of them alone to either sufficiently constitute or provide the necessary basis to legitimately presume the guilt of the appellant. We could not resist but place on record that the appellant seems to have been roped in merely on suspicion and the story of the prosecution built on the materials placed seems to be neither the truth nor wholly the truth and the findings of the courts below, though seem to be concurrent do not deserve the merit of acceptance or approval in our hands having regard to the glaring infirmities and illegalities vitiating them and patent errors apparent on the face of the record, resulting in serious and grave miscarriage of justice to the appellant.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds](9) So far as the case on hand is concerned, it becomes necessary even at the threshold to find out whether the Courts below really endeavoured to find out that each and every incriminating circumstance has been clearly established by reliable and clinching evidence. In a case like the one before us entirely resting on circumstantial evidence and the defence plea that prosecution had withheld and suppressed documents, witnesses and materials it was obligatory for the courts below also to ensure whether the prosecution has come up before the Court with the whole and unvarnished truth or merely presented a perfunctory and tailored case to suit its game plan of somehow securing a conviction, resulting in grave miscarriage of justice. Before going into the circumstances pleaded and analysing the materials on record to find out whether they stood sufficiently or properly established in this case, it would be appropriate to take up for consideration this grievance for the appellant to ascertain the impact of the same on the very proof of existence of those circumstances. P.W.8, the senior Scientific Officer and Assistant Chemical Examiner, who inspected the scene of occurrence by about 11.30 a.m. on the very day of occurrence stated about his instructions to Shri P.C. Yadav, the finger Print Officer, present at that time, to take the finger prints noticed during inspection. P.W. 27, the Investigating Officer, also spoke about the taking of fingerprints and foot prints (shoe marks). The finger prints of the accused were also taken by P.W. 27, yet evasive was his reply on the result of examination or course of action taken pursuant thereto. Neither any reports were marked nor Shri P.C. Yadav was examined. This would be relevant and important piece of material to strengthen the case of either side about the alleged complicity of the accused. The lie detector test report of the appellant said to be item No.45 in the list of documents submitted by the prosecution with the charge sheet was not also marked. Evidence collected by the prosecution regarding the journey of the appellant from Bhopal to Dahod and materials to evidence actual journey with his sister in its possession was also not marked though shown in the list of documents with the charge sheet. Ironically, courts below tried to blame the accused for not getting official witnesses examined in this regard for the defence, in spite of his having examined his sister (D.W.1) and a tenant (D.W.2) in the house at Dahod where D.W.1 also lived. Withholding by the prosecution of the report the materials gathered and conclusions of the CID investigation in the very case and claiming privilege for its production, which came to be upheld also on 27-11-1999 by the trial Court resulting in the exclusion of those materials from the case and denial of even the copy of the said report seems to suggest a concerted effort on the part of the prosecution to mask the real truth from the Court. The CID officers, who conducted the independent investigation and submitted report though cited as witnesses and present in Court on 7-12-2000 were, for reasons best known, not examined. Inspector M.S. Gaur, who conducted the investigation in Bhopal and gathered materials relating to the trip of the appellant to Dahod, stated to have recovered a diary and photograph and brought him from Bhopal to Shajapur on 11-4-1999, though cited as witness No. 19 in the list submitted with the charge sheet, was not examined. He was the best and really vital witness, who could speak for his absence on account of being away at Dahod as well as regarding the search of his person before the alleged search and seizure of the purse and chain on 12-4-1999 at Shajapur by P.W.27 and as to whether the appellant was really absconding or evading being apprehended as projected by the prosecution, in spite of the real fact that even without any arrest warrant he accompanied Inspector Gaur to Shajapur without any demur. Witnesses; natural and independent, expected to be in and around the place of occurrence at the relevant time such as sweepers, milkman, Newspaper man (PW2 admits newspaper having been lying at the entrance when he returned) whose statements were recorded and cited as witness were but given up and not examined at all. The list of Telephone calls - STD, said to be on the basis of computer sheet relating to Telephone No. 547396 of Bhopal alone seems to have been got marked as Ex.P.16 through P.W.16 but for reasons best known such list containing details of calls made from the house of the deceased (their father P.W.2) to the house of the accused though shown as Item No.63 in the list of documents submitted with the charge sheet was not got marked and placed in evidence. This could have cast serious doubts about the claims of PW-2 in respect of the alleged threat over telephone as well as the attitude of his and his own daughter towards the accused. All those aspects would really go to a great extent to justify the grievance sought to be made on behalf of the appellant, that the prosecution instead of impartially endeavouring to unravel the truth was bent upon prosecuting the appellant to get him some how convicted, with a preconceived idea of histhe mere fact that the deceased Priti and the appellant were said to be in love alone, it cannot be even remotely presumed that he should have been the cause for the murder unless it is substantiated by the credible evidence that the affair had broken beyond redemption. This part seems to have more surmised by courts than substantiated by the prosecution on any credible or legally acceptable evidence. In our view, therefore, the motive factor seems to have no legal basis or sufficiently proved to constitute a circumstance to connecting the appellant withthe absence of any clinching material brought on record by the prosecution to show that the appellant did not, as a matter of fact, travel as per the reservations made by him along with his sister (D.W.1), it was not permissible for the courts below merely to disbelieve DW-1 and DW-2 for no valid reason and to surmise, in our view, most unjustifiably that the appellant was clever enough to prepare the material for the defence of alibi, which according to them, remainedfind, on going through the materials on record and the judgments of the courts below, the case before us to be an ideal and illustrative one to justify the apprehensions often reiterated by this Court that the mind was apt to take pleasure in adopting the circumstances to one or the other circumstance without straining a little to supply even the links found wanting to render them complete. The fact that at a busy place like the one in and nearby the Hospital area, a thickly residential with surroundings as spoken to by the witnesses such murder of two girls could be said to have been executed without attracting the attention of anyone nearby or regular passersby at that point of time in the area also seriously improbabilise the prosecution version that the appellant alone was and could have been the culprit. We are also of the view that the doubtful and suspect nature of the evidence sought to be relied upon to substantiate the circumstances in this case themselves suffer from serious infirmities and lack of legal credibilities to merit acceptance in the hands of Courts of Law, since the very circumstances sought to be relied upon themselves stood seriously undermined the existence or proof of one or more of stray circumstances in the chain, break and dislocate the link in such a manner so as to irreversibly snap the link in the chain of circumstances rendering it difficult, inappropriate as well as impossible too, to consider even one or more of them alone to either sufficiently constitute or provide the necessary basis to legitimately presume the guilt of the appellant. We could not resist but place on record that the appellant seems to have been roped in merely on suspicion and the story of the prosecution built on the materials placed seems to be neither the truth nor wholly the truth and the findings of the courts below, though seem to be concurrent do not deserve the merit of acceptance or approval in our hands having regard to the glaring infirmities and illegalities vitiating them and patent errors apparent on the face of the record, resulting in serious and grave miscarriage of justice to the appellant.