CASE NO.: Appeal (crl.) 540 of 1987 PETITIONER: AKHILESH HAJAM RESPONDENT: STATE OF BIHAR DATE OF JUDGMENT: 28/04/1995 BENCH: G.N. RAY & FAIZAN UDDIN JUDGMENT:
JUDGMENT
1995 SCR (3) 864
The Judgment of the Court was delivered by
FAIZAN UDDIN, J. 1. In this appeal the appellant Akhilesh Hazam has
challenged his conviction under Section 302 of the Penal Code recorded by
the Sessions Judge, Rohtas, Sasram in Sessions Trial No. 30/1981 for which
he had been sentenced to undergo life imprisonment. The said conviction and
sentence have been affirmed by Patna High Court in Criminal Appeal No.
630/1982 decided on 30.9.1982.
2. The relevant facts leading to this appeal are that on 10.10.1979 at
about 4.00 PM when Somaru Dusadh, Chowkidar of village Dehlabad was going
towards the east of village Dehlabad and had reached near the house of one
Kedar, Goldsmith, he was informed by one Raja Singh that the appellant
after committing the murder of his mother, sister, wife and a daughter, had
absconded. On receiving this information Chowkidar, Somaru went to the
house of appellant where some persons had also assembled. The Chowkidar
alongwith one Ram Dev went into the house and to his amazement he found the
dead body of the mother of the appellant lying on a cot in a pool of blood
in the courtyard of the house, having injury on her hand. On the western
side of the varandah which was used as a kitchen, he found the dead bodies
of the wife and sister of the appellant lying smeared with blood having
injuries on their respective heads. The daughter of the appellant was also
lying injured but as she was alive she was taken to the hospital for
treatment but she too died later. Chowkidar Somaru left his brother Narain
Dusadh at the spot and also called Hanif Chowkidar of village Nagadih to
keep a watch over the dead bodies and thereafter he proceeded to the Police
Station, Rohtas where he lodged the F.I.R. at 6.30 PM stating therein that
he had learned that the appellant Akhilesh had killed the victims by
assaulting them with an iron angle. According to the prosecution the
appellant after committing the murders fled away towards the village Tumba
and was caught near Tumba Railway Station and brought back home.
3. The Assistant Sub-Inspector of Police visited the place of occurrence
and found the appellant at the door of the house where he had been kept by
his father and some villagers. The Sub-Inspector from the behaviour and
appearance of the appellant took an impression that he was under the
influence of some intoxicate and, therefore, after arresting the appellant
he sent him to Akbarpur hospital for his medical examination. The doctor
who examined the appellant indicated in his report, Ext. 7 that there was
no symptom of poisoning and the appellant was in normal mental state.
4. On interrogation by the Sub-Inspector of Police the appellant is said
to have made disclosure statement with regard to the concealment of an iron
angle which is said to have been used as a weapon in the commission of four
murders. According to the prosecution the said iron angle stained with
blood was recovered and seized from beneath the heap of wood stored for
fuel purposes in a room of the house at the instance of the appellant. The
Asstt. Sub-Inspector of Police held local inspection and prepared inquest
reports in respect of the dead bodies, seized the blood stained earth and
prepared a sketch map of the place of occurrence. Autopsy was conducted
over the dead bodies and the reports were received.
5. The appellant was sent up for trial under Section 302 of the Penal Code.
The appellant adjured his guilt and pleaded to be tried. The prosecution
examined as many as 12 witnesses but they did not support the prosecution
case. However, the trial court relying on the circumstantial evidence
recorded the finding of guilt against the appellant and, therefore,
convicted the appellant under Section 302 I.P.C. and sentenced him to
suffer life imprisonment. The High Court also found favour with the view
expressed by the learned Trial Judge and, therefore, affirmed the
conviction and sentence.
6. Learned counsel appearing for the appellant contended that the
prosecution tried to introduce some evidence to show that the appellant was
under intoxication and pretended as if he had become a person of unsound
mind with a view to escape the guilt and sentenced that may be awarded to
him which fact has been falsified by the medical report, Ext. P.7 which
indicated that there was no symptom of poisoning and the appellant was
found in normal mental state. He also submitted that the appellant was very
much present in the village but the prosecution has vainly tried to show
that he had absconded while in fact he was arrested in the village itself.
Learned counsel for the appellant further submitted that the evidence with
regard to the disclosure statement and seizure of blood stained iron angle
is not worthy of reliance and even if it is accepted the conviction of the
appellant could not be based on the sole circumstances of recovery of iron
angle. It was submitted that there are no eye-witnesses to the incident and
in the absence of any evidence of motive the circumstantial evidence does
not complete the chain so as to lead to the only conclusion that the
appellant and none-else was the murderer of his mother, wife, sister and
daughter.
7. In the present case admittedly, there are no eye-witnesses to the
incident and the conviction of the appellant solely rests on the
circumstantial evidence. It may be stated that the standard of proof
required to convict a person on circumstantial evidence is now well settled
by a series of pronouncements of this Court. According to the standard
enunciated by this Court the circumstances relied upon by the prosecution
in support of the case must not only be fully established but the chain of
evidence furnished by those circumstances must be so complete as not to
leave any reasonable ground for a conclusion consistent with the innocence
of the accused. The circumstances from which the conclusion of the guilt of
an accused is to be inferred, should be of conclusive nature and consistent
only with the hypothesis of the guilt of the accused and the same should
not be capable of being explained by any other hypothesis, except the guilt
of the accused and when all the circumstances cumulatively taken together
lead to the only irresistable conclusion that the accused alone is the
perpetrator of the crime. In the present case the Trial Court as well as
the High Court founded the conviction of the appellant on the basis of the
circumstances which are said to be established against the appellant and
the same are set out herein below :
(1) All the four deceased persons were alive on 10.10.1979 at 7.30 AM
when PW 5, father of the appellant had left the house for Amjore.
(2) The four victims were found murdered at about 2.00 PM in the house in
which the appellant also lived with his father and the victims.
(3) In between the period from 7.30 to 4.00 PM there was no alarm of theft
or dacoity in the house and they had no enmity with any person which rules
but the possibility of the commission of the murder by any other person.
(4) The accused was found absconding from his house soon after the murder
who was subsequently caught outside the village and brought at the door of
the house at about 4 PM.
(5) When the appellant was with his father and other witnesses, the
Assist. Sub-Inspector of Police arrived and noticed the appellant as if he
was under the influence of some intoxication.
(6) Although four members of his family including his wife and daughter
were murdered the appellant did not go to see them and remained outside his
house.
(7) On the disclosure statement made by the appellant the blood stained
iron angle was recovered and seized at the instance of the appellant from
the room of the house concealed beneath the fuel wood stored therein.
8. The question for consideration arises whether the aforementioned
circumstances are proved beyond all reasonable doubt and if so whether they
provide so complete a chain as not to leave any reasonable ground for a
conclusion consistent with the innocence of the appellant. In other words,
whether the circumstances said to be established are of the conclusive
nature and consistent only with the hypothesis of the guilt of the
appellant and the same are not capable of being explained by any other
hypothesis, except the guilt of the appellant which if taken cumulatively
together lead to the only irresistable conclusion that the appellant alone
is the perpetrator of the crime.
9. A perusal of the prosecution evidence goes to show that in all
probability the four murders took place before 2.00 PM because the dead
bodies of all the four victims were seen by the hostile witness PW 4 at
about 2.00 PM. According to the medical evidence of the Medical Officer. PW
11 who performed an autopsy over the dead bodies on 11.10.1979 from 4.40 PM
onwards deposed that the deaths had taken place more than 24 hours from the
time when he performed the post-mortem. It is true that there is evidence
of PW 2, PW 4 and PW 5 to the effect that the victims were alive at 7.30 AM
but there is no definite evidence as to till what time they were seen alive
by the prosecution witnesses. But one thing is definitely clear that the
murders had taken place sometimes before 2.00 PM. It is also not clear from
the prosecution evidence that the appellant remained in the house alongwith
the victims right from 7.30 AM till 2.00 PM during which the murders were
committed. On the contrary PW 4 clearly stated that when he visited the
place of occurrence Akhilesh Hajam was not seen there. Admittedly the
appellant had no motive to commit the ghastly crime of his own mother,
sister, wife and daughter and simply because the family had not enmity with
anyone in the village or that there was no alarm of any theft or dacoity in
the house during the said period, it would not lead to the only inference
that nobody else could have committed the murders except the appellant in
the absence of any positive evidence that the appellant remained at the
house alongwith the victims continuously from 7.30 AM to 2.00 PM on the
date of occurrence. That being so, it would be unsafe and unreasonable to
draw an inference that the appellant alone is the perpetrator of the crime.
10. The evidence that the appellant had absconded soon after the murders
is also shaky and uncertain. According to PW 4 the appellant was not
present in the house but he was seen going towards village Tumba station
and according to the evidence of PW 2, Village Tumba is only one mile away
from village Dehlabad where occurrence took place. That means both the
villages are situated closely to each other. From this evidence it cannot
be inferred that appellant had absconded after the occurrence. The evidence
show that the appellant was found in the village itself from where he was
taken by some of the witnesses to the house and detained at the door of the
house till the arrival of the police. If in fact the appellant had any
intention to disappear from the scene or from the village itself to avoid
his arrest then nothing prevented him to leave the village to some unknown
place but there is no evidence suggesting that the appellant had left the
village at all. All that comes but from the evidence on record is that the
appellant was not found in the house but was found roaming about in the
village for which there may be more than one reasons. The possibility
cannot be ruled out that in the absence of the appellant someone com-mitted
the ghastly murders and when the appellant stepped into the house and found
the dead bodies of his near and dear he became dumb founded and temporarily
lost the balance and equilibrium of his mind as is clear from the
prosecution evidence. PW 4 also deposed that the appellant had fallen down
near the boring of one Deoratan Singh. Almost all the wit-nesses including
the Asstt. Sub-Inspector of Police have deposed that the appellant was
showing the behaviour of a person under the influence of some intoxication
and looked as if the had lost his senses. It was for this reason that the
police had sent the appellant first to the hospital for examination by the
Medical Officer as to his mental state. It appears that the appellant was
not in a position to walk due to mental imbalance as he was taken on a cot
to the hospital.
11. As regards the seizure of blood stained iron angle on the basis of
disclosure statement said to have been made by the appellant the same is
also not free from doubt. According to the prosecution the appellant made
the disclosure statement that he had kept the iron angle in the room
concealed beneath the fuel wood which was used as a weapon of offence but
according to the statement of PW 6 the witness of disclosure and seizure of
the alleged iron angle the same was not found concealed beneath the fuel
wood in the room but the iron angle was found in the varandah which is an
open and accessable place. Such a seizure from an open and accessable place
can hardly be said to be a recovery on the basis of disclosure statement.
It is therefore, difficult to accept that the seizure of iron angle was on
the basis of the disclosure statement made by the appellant. Even if the
iron angle would have been recovered from a concealed place then also on
the basis of this circumstance of recovery alone, in the absence of any
report of Serologist as to the present of human blood on the same the
conviction of the appellant could not be founded. Thus, in our considered
opinion, the circumstantial evidence discussed above does not conclusively
lead to the only irresistable conclusion that the appellant was the
perpetrator of the crime and none else. The prosecution case does not
travel beyond the realm of doubt, the benefit of which has to be given to
the appellant.
12. From the tenor of the evidence adduced by the prosecution it can well
be seen that there has been a deliberate venture and an attempt of the
witnesses to favour the appellant and it becomes clear that the witnesses
did not come out with the truth and tried to suppress the material facts to
deflect the course of justice for reason best known to them. On going
through the prosecution evidence though it appears to us that in all
probability the appellant may be the culprit but probabilities and moral
convictions have no place or any role to play to convict a person in the
absence of legal evidence. There is a long distance to be travelled between
the expression “may be” and “must be”. However strong——- emotional
considerations may be, but the same cannot take the place of proof. It is
indeed unfortunate that four innocent persons lost their lives and the
culprit whosoever he may be goes unpunished. But it would be still worse if
a innocent person is held responsible for the same merely on the basis of
strong and serious doubts and, therefore, the conviction of the appellant
deserves to be set aside by giving him the benefit of doubt.
13. For the reasons stated above the appeal succeeds and is hereby
allowed. The conviction of the appellant under Section 302 with sentence
thereunder is set aside. It is directed that the appellant shall be set at
liberty if not required in any other offence.