A.K. Shrivastava, J.
1. Feeling aggrieved by the judgment of conviction and order of sentence passed by the learned Sessions Judge, Chhatarpur in S.T. No. 159/88, the appellant has preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973.
2. The admitted facts are that Heera (hereinafter referred to as ‘the deceased’) was the brother-in-law of the accused/appellant. The appellant’s sister Ramlaxmi was married to the deceased. Sarjubai (P.W. 4) is the mother of the deceased, Mamtabai (P.W. 7) is the sister-in-law (Bhabhi) and Bhagwandas (P.W. 8) is the brother of the deceased.
3. In brief the case of the prosecution is that on 25-8-88 complainant Bhagwandas submitted a written report at the Police Chowki, Mat-guwan stating therein that the accused took away his brother two and a half years ago under the pretext that he would arrange to get his wife back and thereafter the deceased was not seen. The complainant, thereafter searched the deceased and later on he came to know that the wife of the deceased is residing at Village Bhamori but he could not find his brother. On this report, the Police Station, Ishanagar registered the case at Crime No. 48/88 under Sections 302 and 201 of the Indian Penal Code (in short ‘the IPC’).
4. It is said that at the instance of the accused a skeleton was seized in front of his house from an open space which is a part of a mine. Alongwith the skeleton, some clothes and a wrist watch were seized. After investigating the case, a charge-sheet was filed in the Competent Court who committed the case to the Court of Session where it was tried.
5. The accused was charged under Sections 302, 201 read with Section 411 of the IPC. Needless to say, the appellant abjured his guilt. His defence is that he had no knowledge in respect to the death of the deceased and he had also no knowledge regarding the seizure of the skeleton. According to the accused, the prosecution witness Rajju (P.W. 1), wanted to grab the land of the accused, which he did not permit him, therefore, at the instance of this witness, the prosecution witnesses Sarjubai, Mamtabai, Bhagwandas and Ranjhadi have deposed falsely. However, the accused did not choose to examine any witness in his defence.
6. The learned Trial Judge after appreciating the evidence came to the conclusion that the appellant did commit the offence for which he was charged and eventually convicted him to suffer rigorous imprisonment of life.
7. We have heard Shri Piyush Dharmadhikari, learned Counsel for the appellant and Smt. Chanchal Sharma, learned Counsel for the State. There is no direct evidence in the case and the case of the prosecution rests upon the circumstantial evidence. The Trial Court passed the judgment of conviction on the basis of motive, seizure of skeleton at the instance of the accused as well as the recovery of socks, wrist watch, steel bangles and one purse. These articles were identified by Bhagwandas, Sarjubai and Mamtabai in the Test Identification Parade.
8. The law regarding the case which rests upon circumstantial evidence is now settled. The circumstantial evidence should always be consistent with the guilt of the accused and inconsistent with the innocence. It should be borne in mind that the chain of circumstances furnished by the prosecution should be so complete, so as not to lead any reasonable ground for the conclusion consistent with the innocence of the accused. The incriminating circumstances used against the accused must be such so as to lead only a singular hypothesis of guilt and reasonably exclude every possibility of the innocence of the accused. It should be kept in mind that in a case of circumstantial evidence the whole endeavour and effort of the prosecution should be to prove whether the crime was committed by the accused and the circumstances proved weave and unite themselves into a complete chain unerringly pointing to the guilt of the accused and if the circumstances proved against the accused are not totally consistent with his guilt, he is entitled to the benefit of doubt.
9. Recently, the Supreme Court in the case of Ashish Batham v. State of M.P., 2003(1) M.P.H.T. 1 while dealing the case of circumstantial evidence has laid down the law thus :–
“6. The principles, which should guide and weigh with the Courts administering criminal justice in dealing with the case based on circumstantial evidence, have been sufficiently 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 Govind Nargundkar and Anr. v. State of Madhya Pradesh, AIR 1952 SC 343, 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. Badge, (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.”
10. Keeping in view the above said principle of law, the case of prosecution is tested on the anvil of the evidence produced by it. Ex. P-23 is a written report of Bhagwandas (P.W. 8) who is the brother of the deceased. This written report was submitted on 25-8-88. In the said report it has not only been mentioned that the deceased was wearing a steel bangle in his right hand, one wrist watch having steel chain in his left hand, but he has also described the colour of the shirt (red colour shirt), colour of the trouser (white) and the colour of the socks (red) made of nylon. In the report it has been further stated that the deceased was wearing nylon shoes. The important thing to be noted is that after a lapse of two and a half years, the informant Bhagwandas did remember the clothes which were being worn by the deceased, their colour etc., which according to us is not humanly possible.
11. On the very next day, i.e., on 26-8-88, at the instance of the accused/appellant, a human skeleton was seized in front of his house from a mine. A memorandum under Section 27 of the Indian Evidence Act (Ex. P-1) was prepared. Ex. P-2 is the seizure memo of the said skeleton. Ex. P-3 is the seizure memo of shoes, wrist watch, steel bangle, one purse. Ex. P-4 is the seizure of the arms of a cot which according to the prosecution were used as weapon in the commission of crime, Ex. P-5 is the seizure of an axe, Ex. P-7 is the arrest memo of the accused and Ex. P-6 is the site map.
12. Rajju alias Rajaram (P.W.1) has stated that the deceased came to Village Kodan and was insisting the appellant to send his wife. A compromise had taken place between the deceased and the accused and thereafter the deceased went to stay with the accused and thereafter he was not seen. The mother of the deceased came later on after 15-20 days and enquired about the deceased from him and he stated to her that a compromise had been arrived at between the deceased and the appellant and thereafter the deceased went to the house of the appellant and slept there. After 2 years and 3 months, the accused met him in a drunken state and told him that he had killed the deceased and had dug his dead-body. On coming to know this fact, he sent the said information to the brother and mother of the deceased. He has also stated that when the coversation regarding the compromise had taken place, the deceased was wearing red colour shirt, white trouser, red colour socks and black shoes made of nylon. He was also wearing a steel bangle in one hand and in another hand, he was wearing a lady wrist watch. This statement of the witness appears to be quite unnatural because human memory is fed and one could not remember the colour of the clothes, the yarn by which the socks and the shoes were made and that too after 2 1/2 years. In the cross-examination in Para 9, this witness has stated that the accused did not give any statement making confession of his guilt. He has further stated that the dead-body was not seized. According to him he was not visiting the house of the deceased. This witness was examined on 6-9-89 and later on, after one year, this witness was recalled and he changed his earlier version and stated that the accused told to the police inspector that he would show where the dead-body has been dug. However, he firmly stated that accused did not give any statement at the police station or police chowki in his presence.
13. If the documents (Ex. P-1 and Ex. P-2) which are the statement of the accused recorded under Section 27 of the Evidence Act, and the seizure of skeleton respectively, are perused, it would reveal that they were prepared at Police Chowki, Matguwan. Thus, according to us the seizure of the skeleton as well as the other articles like wrist watch, socks etc., becomes doubtful.
14. Vinod Bihari Khare (P.W. 2), is the Naib Tehsildar. In presence of this witness, the skeleton was seized. This witness has stated that on 26-8-88, in presence of police officers, and some villagers including the accused on digging a pit, a human skeleton was seized. It is important to note that he has stated that the said place was identified by the police and thereafter the accused dug the pit. According to him near the skeleton one wrist watch having a steel chain, one steel bangle one purse having currency note of Rs. 5/- inside it, a pair of red colour nylon socks were recovered. Nowhere this witness has stated that when the skeleton was found, it was wearing the socks, wrist watch and the steel bangles. At the time of recovery of the skeleton, the clothes were not found on it. The prosecution did not try to collect the evidence that what happened to the clothes which were being worn by the deceased. This witness has specifically stated that these items were recovered near the skeleton, while according to seizure memos (Ex. P-2 and Ex. P-8), these articles were recovered from the skeleton. The police produced certain photographs of the skeleton which are Ex. P-9 to P-18, but from these photographs, it is not perceptible that the socks, wrist watch and steel bangle were found on the skeleton.
15. So far as the seizure of the articles like wrist watch, red colour nylon socks, purse and steel bangle are concerned, these articles were subjected to Test Identification Parade and these articles were rightly identified by Bhagwandas, Sarjubai and Mamtabai. However, Rajendra Singh (P.W. 3) who is Sarpanch of the village and who had conducted the Test Identification Parade of these articles, has specifically stated that these articles were quite old and they were mixed with the brand new articles which were brought from the shop. In this view of the matter, the test identification of these articles becomes highly doubtful. The Test Identification Parade of the articles can not be relied for another reasons that Sarjubai (P.W. 4) has stated that the Test Identification Parade was not conducted in the office of the Panchayat, but was conducted at the police station.
16. The learned Trial Judge in Para 33 of his judgment has placed reliance on the extra-judicial confession of the accused confessing his guilt before Rajju (P.W. 1) and Ranjhadi (P.W. 5). So far as the confession of the accused to Rajju (P.W. 1) is concerned, the same is not reliable for the reason firstly, that according to him the said confession was made by the accused in a drunken state and therefore, no credence could be given, secondly, this witness did not report to the police disclosing such confession, and there is no explanation to it. In this context, it will be profitable to refer to the law laid down by the Supreme Court in the case of Dwarkadas Gehanmal v. State of Gujarat, (1999) 1 SCC 57. From the evidence it is gathered that in the drunken state the accused/appellant confessed his guilt to the witness Rajju (P.W. 1). The Supreme Court in the case of C.K. Raveendran v. State of Kerala, (2000) 1 SCC 225, in Para 4 has held that the extra-judicial confession could not be said to be voluntary or truthful one if the same was given in the drunken state. In the case of Balbir Singh v. State of Punjab, (1999) 9 SCC 30, the Supreme Court has held that ordinarily extra-judicial confession should not be accepted without corroboration. In the instant case also there is no corroboration of the confession made to this witness. As we have discussed hereinabove that after the alleged confession made by the accused to this witness, he sent the said information to the family members of the deceased but the brother (Bhagwan Das) and the mother of the deceased do not say that Rajju (P.W. 1) ever said to them in respect to the confession of the accused nor this fact find place in the report (Ex. P-23) lodged by Bhagwan Das. In this regard, a decision of the Division Bench of this Court in the case of Rup Singh v. State of M.P., 1991 (I) MPWN 12, can be taken note of. One can not dispute that the evidence of extra-judicial confession is a weak type of evidence and we may rely on the decision of the Division Bench of this Court in the case of Balbhadra Singh and Ors. v. State of M.P., 1997 (1) Vidhi Bhasvar 209, in this regard.
17. So far as confession to Ranjhadi (P.W. 5) is concerned, it is not admissible in evidence because his evidence is hearsay. He has stated that accused confessed his guilt before Rajju and Rajju told him about the confession of the accused.
18. From the evidence of Rajju, it transpires that accused stated to him that he had killed the deceased. On coming to know this fact, he immediately sent information to the mother and brother of the deceased, but neither the brother of the deceased Bhagwandas (P.W. 8) nor the mother Sarjubai (P.W. 4) has stated so. This important fact also does not find place from the written report (Ex. P-23) lodged by Bhagwandas. Thus, the story of extra-judicial confession cannot be relied upon.
19. Ordinarily, the motive would not have been an important factor under Section 302 of the IPC where direct evidence is available, but in the case of circumstantial evidence, it has some significance. The Supreme Court in the case of Tarseem Kumar v. Delhi Administration, AIR 1994 SC 2585 has held as under:–
“Normally, there is a motive behind every criminal act and that is why investigating agency as well as the Court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on basis of the materials produced before the Court, the motive loses its importance. But in case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the Court for purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as the Court should ascertain as far as possible as to what was the immediate impelling motive on the part of the accused which led him to commit the crime in question. In the present case, no motive on the part of the appellant to commit the murder of Gulshan, has been suggested or established on behalf of the prosecution.”
20. In the present case, the motive which has been demonstrated by the prosecution is: that because the sister of the accused remarried with one another person Lalli of Village Bhamori,District Hamirpur (U.P.) and the deceased was insisting appellant to get the company of his wife resumed therefore he had killed the accused. In our view this could hardly be a motive to kill a person. If the sister of the accused on her sweet will went and started living with another person, why accused would kill the deceased. No prudent man could digest that this could be a motive, as put forth by the prosecution.
21. We have discussed hereinabove that the recovery of the skeleton at the instance of the accused is not reliable and therefore the memorandum under Section 27 of the Evidence Act is also of no use. Indeed the same is inadmissible in evidence. The other important factor is that it is not proved that the skeleton which was recovered was of the deceased. In the report (Ex. P- 23), it has been stated by the Bhagwandas that the height of his brother Heera (deceased) was short, while Dr. Raj Kumar Singh (C.W. 1), who was examined as a Court Witness has stated that the skeleton which was sent for examination was of a male person having height of 5′ 8″ to 5′ 10″ meaning thereby that the skeleton was of a tall person and therefore this create a heavy doubt that the skeleton which was recovered was of the deceased.
22. There is another important factor which has crept in the testimony of the mother of the deceased Sarjubai. She has stated repeatedly (four times) that she went to lodge the missing report of her son and the police wrote the report and obtained her thumb impression on it, but surprisingly not a single report has been produced by the prosecution.
23. In the case of Ashish Batham (supra), which was also a case of circumstantial evidence in Para 8, the Apex Court held as under :–
“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 atleast 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 one the touch stone of a dispassionate judicial scrutiny based on a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record.”
24. On the basis of the above said premised reasons, it is not proved beyond doubt that the accused has committed the said offence. The evidence which has been produced by the prosecution is not sufficient to hold that the accused has committed the said offence. Whatever the evidence has been collected by the prosecution creates a heavy doubt in respect to the commission of the offence by the accused and thus, we hereby extend the benefit of doubt to the accused/appellant.
25. In the result, the appeal succeeds and is hereby allowed. The conviction of the appellant is set aside. The appellant is in jail. He be set at liberty forthwith, if not required in any other case.