Case: Ashish Batham Vs. State of Madhya Pradesh

(2) The case of the prosecution, as unfolded from the evidence, is that Dr. Ram Avtar Mudgal (PW2), a dental practitioner at Shajapur, father of the two unfortunate victims; was residing in Government Quarters situated near "Nai Sadak" with his wife and two daughters, the eldest of whom by name Kumari Priti, aged about 22 years and the younger one, by name, Kumari Nidhi, aged about 17 years. The appellant was said to have been serving as Assistant Manager from 3-12-1997 to 5-10-1998 in M.P. Agro State Industry and Development Corporation (for short "Agro Corporation") at its office at Shajapur and was staying in Upkar Lodge situated in the vicinity of Nai Sadak. During the said period he was said to have become friendly with the eldest daughter, though he was familiar with both of them, and often they used to meet and sit behind Hanuman Temple situated on the outskirts of Shajapur city. During such time of visit, said to be almost daily, Priti Mudgal used to be with the appellant and he used to lie down keeping his head on her lap and chat with her when the younger Ms. Nidhi used to sit at some distance. The appellant used to give some gifts to the girls. Thereafter, the appellant came to be transferred as Assistant Manager to Bhopal Office of the Agro Corporation and about a month or so prior to the day of occurrence the father of the appellant Shri Hari Narayan Batham was said to have telephoned to Dr. Ram Avtar Mudgal (PW-2) from Bhopal and told him that there was an affair between his son, the appellant, and Priti, his daughter, and, therefore, he should visit his house at Bhopal for talking about their marriage to which the father of the girls was said to have informed that he was against the idea of marrying Priti to a boy who was not Brahmin by caste, to which they belong and that was also the view of his daughter Priti. It is also the case of the prosecution that the father of the appellant told PW-2 that in case of refusal he would be required to repent and that was the same tone of reply given by PW-2 when called up over phone once again, thereafter. On the ill-fated morning of 8-4-1999, it is said that the Dr. Ram Avtar Mudgal (PW-2) and his wife left their house at about 6.15 a.m. or so for a morning walk and when they returned back home by about 7.00 to 7.15 a.m., the outer door was open and a newspaper Nai Duniya was lying in the verandah and on entry into the house, they found the younger daughter Ms. Nidhi dead with injuries at the dental clinic room and the eldest daughter Ms. Priti in the toilet with injuries, almost in a sitting position. The further case of the prosecution is that during the time between 6 a.m. and 8 a.m. or so on the day the appellant was present in Shajapur and between 6.15 a.m. and 6.30 a.m. or so he was inside the house of Dr. Ram Avtar Mudgal (PW-2) and it was he who killed the daughters to wreak vengeance due to failure of love. PW-4, Advocate by name Shri Narain Prasad Pande, was said to have seen the appellant near the residential house of Dr. Ram Avtar Mudgal at about 6.15 a.m. when he was going towards bus stand for catching the bus to go to Indore for attending the High Court work. PW-3, Ms. Poonam Garg, a neighbour, was said to have heard the noise of bell which was being pressed at the residence of Dr. Mudgal at about 6.15 a.m. or so followed in a few minutes by the cries Mummy save, Mummy save. Jai Prakash Mandloi (PW-5), who lives in a house just opposite the District Hospital, was said to have seen the appellant coming out in the outer compound of the residential house at about 7.00 to 7.30 a.m. when he was returning from his newly constructed house where he had gone to do watering. The appellant, after committing the murders of both the girls, was said to have concealed the blood stained knife, weapon of murders and the blue jean which he was said to have been wearing at the time of the incident, which was blood stained, in a ditch behind the bushes behind Hanuman Temple situated at the outskirts of Shajapur city. He was said to have deliberately created the scene of burglary and murder by keeping open the doors of almirah and stealing some currency notes worth Rs.12,000.00 for misguiding the Investigating Authorities and also fabricated false evidence for establishing an alibi to prove his innocence by showing that at the same time he was absent and away at Dahod in Gujarat, accompanying his sister from Bhopal and said to be present on 8-4-1999 at that place. The priest in Hanuman Temple by name shri Rishikesh (PW-16) was examined to prove the visits of the appellant to the temple in the company of the two girls. Immediately on his return to the house, Dr. Mudgal seems to have informed Dr. Rathore and Dr. Sisodia on telephone and Dr. Sisodia along with Dr. Gupta seems to have reached the place and thereafter Dr. Gupta seems to have telephoned the Police Control Room giving information about the occurrence. PW-26, an ASI, who received the information, informed PW-27, B.P. Samadhiya, City Police Inspector, about the incident. PW-27 on his arrival on the spot was told by Dr. Mudgal (PW-2) about the occurrence and the same was registered as First Information Report (Ex.P-11) and the death of the two girls was recorded as information marked as Ex.P-12 by sending the raiding officer to the Judicial Magistrate and Departmental Sentencing Authority and the investigation was said to have been started. It is stated that during investigation Police Inspector, M.S. Gaur, brought the appellant from Bhopal and produced him before the City Police Inspector, who arrested him. Dr. Mudgal (PW-2) was also stated to have given on 21-4-1999 the list of articles said to be missing from place of incidence to PW-27 marked as Ex. P-14. After the arrest and personal search of the appellant, it was stated that a purse, in which one chain and Rs.1223.00 were found, was seized and panchnama marked as Ex. P-22. In the Identification Parade held on 22-4-1999 by Shri R. K. Sharma, Tehsildar (PW-14), Dr. Ram Avtar Mudgal (PW-2) and his wife were said to have identified the chain, noticed above, to be the chain missing from the neck of the younger daughter Ms. Nidhi. On a disclosure statement said to have been made on 23-4-1999 under S. 27 of the Evidence Act, the appellant was said to have produced the knife and blood stained clothes from the place where they were said to have been hidden vide Ex. P-23. The knife and blood stained clothes were said to have been seized under seizure panchnama Ex. P-24. the appellants specimen handwritings and signatures were also said to have been obtained and seized.(3) The appellant was charged under S. 302, IPC separately for the murder of two girls, in addition to being charged under S. 449 IPC. The appellant denied the charges. After trial, in which witnesses were examined and documents were marked, the learned Trial Judge accepted the evidence of Narain Prasad Pande (PW-4), Rajmal Bhimawat (PW-10) as well as Jai Prakash Mandloi (PW-5) and Poonam Garg (PW-3) and placing reliance upon the evidence of Hanuman Temple priest PW-16, Rishikesh, and PW-27. Investigating Officer Samadhiya, found that the evidence was sufficient to establish the guilt of the appellant in respect of the charge of murder of two girls. The learned trial Judge also held that during the time between 6 a.m. and 8 a.m. or so on 8-4-1999 the appellant was present in Shajapur and between 6.15 a.m. and 6.30 a.m. or so, he was inside the house of Dr. Mudgal by committing house trespass and from the further circumstances proved from the recovery of the chain and the weapon for committing the offence and blood stained clothes, the guilt of the appellant stood substantiated beyond doubt by the overwhelming circumstantial evidence. The defence put forward by the appellant, including the one based on the plea of alibi, was rejected. Consequently, the trial Court convicted the appellant and imposed sentences, as noticed earlier. The Division Bench of the High Court, while dealing with the Death Reference as well as the appeal filed by the accused, affirmed the conviction and modified only the death sentence into one of life imprisonment.

Reasoning:
(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.