Ashish
Batham Vs. State of Madhya
Pradesh [2002] Insc
379 (9 September 2002)
Doraiswamy
Raju & Shivaraj V. Patil. D. Raju, J.
The
above appeal has been filed by the appellant who was convicted by the learned
Sessions Judge, Shajapur, Madhya Pradesh, for the offence under Section 302 IPC
(on two counts) on the ground that he killed Ms. Nidhi and Ms. Priti, the
daughters of Dr. Ram Avtar Mudgal (PW-2), and sentenced to death and imposition
of life imprisonment for the offence under Section 449 IPC for committing house
trespass to commit the said murders. The appeal filed by the appellant herein
before the High Court in Criminal Appeal No.763 of 2001 and the reference made
to the High Court for confirmation in death reference No.1 of 2001 came to be
heard together by a Division Bench of the Madhya Pradesh High Court, Indore
Bench, and while sustaining the conviction under Sections 302 IPC and 449 IPC,
the High Court altered and reduced the sentence to imprisonment of life by
making the sentence to run concurrently. The present appeal is against the
same.
The
case of the prosecution, as unfolded from the evidence, is that Dr. Ram Avtar Mudgal
(PW-2), 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 3.12.97
to 5.10.98 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 Narayn 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 8.4.99, 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 that 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/-
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 8.4.99 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 alongwith 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/- 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 Section 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 appellant's
specimen handwritings and signatures were also said to have been obtained and
seized.
The
appellant was charged under Section 302 IPC separately for the murder of two
girls, in addition to being charged under Section 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 8.4.99 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.
Shri Sushil
Kumar, learned senior counsel for the appellant, and Shri Sidhartha Dave,
learned counsel for the respondent-State, were heard at length.
The
learned counsel took us in detail into the relevant evidence and all the
materials on record to substantiate their respective stand. The learned counsel
for the appellant contended that being a case depending upon merely
circumstantial evidence, the prosecution miserably failed to prove the circumstances
satisfactorily to complete the chain of circumstances so as to establish
conclusively the guilt of the accused in this case in a manner that rule out
every hypothesis inconsistent with his innocence. According to the learned
counsel, apart from being unable to do so, the missing links also were
liberally filled upon up by manipulated materials and baseless surmises,
resulting in grave injustice. The serious charge against the prosecution by the
learned counsel was that it suppressed and withheld, relevant and most vital
materials gathered by them in the course of investigation and withheld also
important witness not only cited but called for and present in Court from being
examined in an attempt to avoid the real facts and truth of the episode coming
before Court for its consideration. The grievance projected for and on behalf
of the appellant is that on mere surmise and suspicion the appellant has been
targeted and the case tailored to somehow get the appellant convicted and the
Courts below either overlooked or glossed over serious pitfalls and grave
infirmities in the case of the prosecution and the evidence let in to prove its
case, by adopting a superficial approach, not befitting the seriousness of the
crime alleged. Despite the concurring nature of the verdict returned by the
Courts below, it was contended for the appellant that the conclusions were
manifestly erroneous and arrived at without a complete and comprehensive
appreciation of all relevant aspects of the case in their proper perspective
and consequently are liable to be set aside.
Per
contra, the learned counsel for the respondent also strenuously contended that
the prosecution successfully proved its case by placing on record overwhelming
circumstantial evidence, which, according to the learned counsel, rightly found
favour of acceptance with both the Trial Court as well as the High Court and,
therefore, no interference is called for in this appeal. The circumstances such
as the motive the love affair and failure in it, the fact that the accused was
seen near the place of occurrence at the relevant point of time when the
offence was said to have been committed, the failure to prove the alibi set up
by the accused, the recovery of the chain from the accused and the further
recovery of blood stained knife and clothes, pursuant to a disclosure statement
under Section 27 of the Indian Evidence Act, were, according to the learned
counsel, strong, relevant and important circumstances which go to establish the
guilt of the appellant beyond any reasonable doubt, leaving no room for any
other hypothesis, except the guilt excluding entirely the innocence of the
accused and consequently, the appeal deserves to be rejected. Keeping in view
the gruesome nature of the crime, the learned counsel submits that the accused
is not entitled to any liberal or sympathetic consideration and that the High
Court having already been more lenient and sympathetic in reducing the death
sentence into one of life imprisonment, no further indulgence of any kind need
be shown to the appellant.
The
principles, which should guide and weigh with the Courts administering criminal
justice in dealing with a case based on circumstantial evidence, have been
succinctly laid down as early as in 1952 and candidly reiterated time and again,
but yet it has become necessary to advert to the same, once again in this case
having regard to the turn of events and the manner consideration undertaken, in
this case by the courts below. In Hanumant it has been held as follows:-
"In dealing with circumstantial evidence the rules specially applicable to
such evidence must be borne in mind. In such cases there is always the danger
that conjecture or suspicion may take the place of legal proof and therefore,
it is right to recall the warning addressed by Baron Alderson to the jury in
Reg. V. Hodge, (1838) 2 Lewin 227) where he said:
"The
mind was apt to take a pleasure in adapting circumstances to one another, and
even in straining them a little, if need be, to force them to form parts of one
connected whole; and the more ingenious the mind of the individual, the more
likely was it, considering such matters, to overreach and mislead itself, to
supply some little link that is wanting to take for granted some fact
consistent with its previous theories and necessary to render them
complete." It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion of guilt is
to be drawn should in first instance be fully established, and all the facts so
established should be consistent only with the hypothesis of the guilt of the
accused.
Again,
the circumstances should be of a conclusive nature and tendency and they should
be such as to exclude every hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the innocence of the accused
and it must be such as to show that within all human probability the act must
have been done by the accused." These principles were needed to be
restated even as late as in the decision The learned Trial Judge adverted to
the following circumstances said to have been shown against the appellant to
establish his guilt:
(a)
Motive to commit the crime is that the accused failed in the love affair with
Ms. Priti, daughter of P.W.2, and failure to marry her;
(b)
The accused, who had earlier served at Shajapur but transferred to and serving
at Bhopal, was seen entering and leaving the house situated in the premises of
District Hospital, Shajapur, where the two daughters of P.W.2 were found dead
and was seen going towards the bus stand;
(c)
Absence of the accused in suspicious circumstances one day before the date of
incident and three days after the incident from his Bhopal Office and the
improbable and unproved defence of alibi taken that he was with his sister at Dahod
in Gujarat State;
(d)
Seizure of the chain from the possession of the accused and the identification
of the same by the mother and father of the deceased;
(e)
The disclosure statement given by the accused under Section 27 of the Indian
Evidence Act and seizure of the knife and the blood stained clothes, pursuant
to the same;
(f)
Presence of human blood in the chemical examination of the knife and blood
stained clothes seized from the accused; and
(g)
The conduct of the accused, non-disclosure of the facts in his knowledge and
giving false explanation.
The
High Court also, though chosen to refer to the very same, had modulated and
multiplied it by adverting to the various facets of the same.
Realities
or Truth apart, the fundamental and basic presumption in the administration of
criminal law and justice delivery system is the innocence of the alleged
accused and till the charges are proved beyond reasonable doubt on the basis of
clear, cogent, credible or unimpeachable evidence, the question of indicting or
punishing an accused does not arise, merely carried away by heinous nature of
the crime or the gruesome manner in which it was found to have been committed.
Mere suspicion, however, strong or probable it may be is no effective
substitute for the legal proof required to substantiate the charge of
commission of a crime and grave the charge is greater should be the standard of
proof required. Courts dealing with criminal cases at least should constantly
remember that there is a long mental distance between `may be true' and `must
be true' and this basic and golden rule only helps to maintain the vital
distinction between `conjectures' and `sure conclusions' to be arrived at on
the touch stone of a dispassionate judicial scrutiny based upon a complete and
comprehensive appreciation of all features of the case as well as quality and
credibility of the evidence brought on record.
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 fingerprints 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 a
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.C. 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 (P.W.2 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
persecuting the appellant to get him some how convicted, with a preconceived
idea of his guilt.
The
courts below proceeded to believe the disappointment and failure in love of the
accused with Ms.Priti to be the strong motive for the appellant to have
committed the murder and as a firm circumstance to connect him with the
incident. The accused, of course, denied the love affair. P.W.2, the father,
also deposed that he was not aware of the same and when he checked up after the
call from the father of the accused Hari Narayan Batham, who was alleged to
have asked for the marriage of the accused with the deceased girl Priti, the
girl also stated to have denied any such relationship with the accused. In that
view of the matter, the evidence of P.W.16, the Priest of Hanuman Temple, and
the telephone calls were mainly relied upon to arrive at the findings in this
regard, taken together also with a stray information given the observation by
the sister of the accused, D.W.1. A careful reading of the evidence of P.W.16
would show that he is a mere tuitored witness and not speaking the truth as to
what really happened, if only the version of P.W.2 as to total ignorance of any
such affair with his daughter and the blunt denial by his daughter Priti as
spoken by him is to be believed.
Ex.P.16,
the telephone bill pertaining to Telephone No. 547396 located in Bhopal, not
merely indicates the call from the said telephone to the residential telephone
of P.W.2 on that day or thereafter, but the calls often made from January
onwards, at times of very long duration at odd hours in the night.
This
taken together with the grievance projected on behalf of the appellant about
non-marking of the similar list of telephone STD calls from the telephone of
P.W.2 indicating as it is claimed of such calls of longer duration to the
Bhopal No.547396 would go to show that P.W.2 could not have been oblivious to
the on-going affair between the accused and the deceased daughter Priti. The
theory of alleged threat seems to be a mere invention of the prosecution to
somehow fix the appellant with the murder taking advantage of the partial
evidence produced. This line of reasoning suggested by the learned counsel for
the appellant would get strengthened from the fact that though the Police arrived
immediately after the occurrence and a complaint was lodged by P.W.2, there was
no mention about the appellant being even a suspect for incident and if only
the theory of threat sought to be advanced to prove the complicity of the
appellant with the murder, was a real fact the moment he saw the occurrence on
his return to the house that alone should have naturally come to his thought in
the forefront. From the 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
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 with the occurrence.
The
next circumstance sought to be relied upon is that the appellant, who was
transferred from Shajapur and working at the relevant time at Bhopal, was found
entering near the compound and leaving the place during the time between 6.00
and 7.15 a.m. on the morning of 8.4.1999. This circumstance is sought to be
substantiated by the evidence of P.W.4, an Advocate, residing nearby and P.W.5
residing in the vicinity of the Lodge opposite to the quarters of P.W.2 and
that of the young girl of 14 years at the time of examination (P.W.3), who was said
to have heard the calling bell sound in the house of P.W.2, followed by a cry
of Priti `Mummy save, Mummy save' from the house of P.W.2. It is odd to believe
that this girl neither tried to come out to see what it is nor sounded or
alerted anyone in her own house about such a cry to enable them to respond or
verify what it was about. The conduct and the attitude of P.W.4 as well as
P.W.5 seems to be highly suspicious to make them to be really true witnesses
for the event spoken to by them. Though P.W. 4 would claim that he saw the
accused entering near the compound leading to the house of P.W.2 while he was
leaving for the bus stand for his onward journey to Indore to attend the Court
work in the High Court, P.W. 5 was positive in deposing that after the
occurrence and when the police arrived and people were gathered before the
house of P.W.2, he found P.W.4 also in the crowd. In spite of all these, P.W.5
would say that he immediately left for his village evincing no interest in the
matter and returned after two days and when he called on the Doctor, he
disclosed about having seen the appellant whom he claimed to know since the
appellant was residing earlier in the Upkar Lodge. P.W.4, the Advocate, also
would say that only when he returned late in the night, he called on the father
and disclosed the information about his having noticed the appellant while he
was leaving. The evidence of these two witnesses seems too artificial to be
believed and their disappearance from the scene, to reappear one on the night
and other after two days, would hardly inspire confidence in their version, to
be believed by any reasonable person or any Court, which is obliged to analyse
and assess the credibility of the evidence before accepting the same.
Consequently, no reliance could have been placed on their version to prove the
movement of the appellant during the relevant point of time near the house of
P.W.2 so as to implicate him in the murder. It is necessary at this stage
itself to advert to the claim of the appellant that on 7.4.1999 he left Bhopal
accompanying his sister DW-1, by the night train to Dahod in Gujarat as per the
reservation of tickets made by him, which was also spoken to by D.W.1 and D.W.2
that not only the appellant travelled along with the D.W.1, but he was very
much present at Dahod in Gujarat on 8.4.1999. Curiously, the Courts below chose
to summarily reject the claim faulting the appellant for not examining the
railway officials ignoring the fact that in spite of Inspector Gaur collecting
the materials relating to his reservation and travel, neither he was examined
nor the prosecution summoned those officials, who were examined during the
course of investigation or marked the materials collected to prove that the
appellant did not travel as claimed by him. Different and contradictory
standard of appreciation of evidence seems to have been adopted to the
detriment of the accused resulting in grave injustice. In the 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, remained unsubstantiated. To
support the prosecution version, an arrest of the appellant was shown on
12.4.1999 at Shajapur by P.W.27. It was sought to be projected as though he was
absconding and avoiding being apprehended without choosing to examine Inspector
Gaur, who had been to Bhopal to investigate and who really brought him into Shajapur
and presented him to the Investigating Officer (P.W.27). To add further to the
mysterious move of the prosecution, no attempt was made to mark or let in
evidence of the relevant railway officials, though the materials gathered were
shown in the list of documents by the prosecution. It appears that on a grievance
of harassment and biased and partial investigation by the local Police,
complaint seems to have been made necessitating the CID officers to conduct an
independent investigation and submit a report, but claiming privilege and
protection under Section 137(6) of the Cr.P.C., not only those papers were
removed from the case file, but no one associated with the said investigation
were even examined though they were cited as witnesses and were also said to be
present in court on 7.12.2000. Strangely, the learned Trial Judge while
examining the accused under Section 313, Cr.P.C., was shown to have put
questions about the conduct of those investigating officers to the accused.
The
serious lapse in not pursuing the examination of the finger prints or bring on
record the results of fingerprints taken and making them available for
consideration as well as the omission to bring to the notice of the Court the
result of the lie detector test, to which the appellant was subjected,
sufficiently create serious suspicion and cast great shadow of doubt on the
credibility and truthfulness of the prosecution case.
The
next circumstance that was considered to be a strong and relevant one to
connect the appellant with the occurrence was the recovery of the chain said to
have been worn by his younger daughter Nidhi and stated to be missing. The
entire episode, both with reference to this recovery as well as the recovery of
the knife said to have been used in the commission of the offence as well as
the blood stained clothes of the appellant seem to be much more shrouded in
suspicion and dramatic than real to inspire any confidence or faith to place
any reliance on either of them. About the so-called missing of the chain, which
looked similar to gold, and about other alleged missing articles, P.W.2 was
said to have given in writing, without any date, but indisputably only on
21.4.1999.
The
identification test said to have been conducted by the Tehsildar (PW- 8) and
the so-called identification of the same by PW-2 and his wife of the chain said
to have been worn by the deceased Nidhi does not carry the case of the
prosecution any further. It is stated that the said chain placed for
identification had iron wire in place of hook and it was not said to have been
mixed with similar chains having such iron wire in place of hook. The criticism
that, nothing much could be relied upon the so called identification cannot be
lightly brushed aside. Even as to the recovery of the chain claimed from the
appellant after his arrest on 12.4.99. at Shajapur, serious doubts surround
recovery claim to render the said claim itself a suspect one. PW-9, the only panch
witness, examined for the recovery, panchnama does not corroborate any recovery
in his presence and the other witness to the recovery was not examined at all.
It is hard to believe that the appellant was carrying the chain in his pocket
from the date of occurrence till he met Inspector Gaur that the said Inspector
who allegedly got the diary and a photo could not have noticed it at Bhopal and
the same was carried by him even when he was brought to Shajapur till it was
claimed to have been recorded by PW-27. Though, it was said to have been worn
by the deceased Nidhi before her death, no bloodstains were found on the chain
in spite of her neck being cut and she bled profusely from the neck. The
non-examination of Inspector Gaur, who brought the appellant from Bhopal, also
cast serious and reasonable doubts about this part of the prosecution case. The
same appears to be the position with reference to the story about the
disclosure statement Ex.P-23 and the recovery panchnama Ex.P-24 relating to the
recovery of the blood stained knife and clothes recovered from 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.
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 bloodstains found on the terrace of the house also assumes
significance and considerably affect the veracity of the case projected by the
prosecution.
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 improbablise 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.
For
all the reasons stated above, the judgments of the courts below are set aside.
The appeal is allowed and the appellant is acquitted and directed to be
released forthwith, if not required in any other case.
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