JUDGMENT
S.K. Dubey, J.
1. Appellant has filed this appeal from Jail against his conviction and sentence of Life Imprisonment under Section 302 of the Indian Penal Code and conviction under Section 404 of the Indian Penal Code, sentence 3 years R.I., recorded in Sessions Trial No. 21/89 vide judgment dated 29th July, 1989, by the Additional Sessions Judge, Khairagarh (district Rajanandgaon).
2. The prosecution case in brief is thus. The deceased Lagnibai alias Buchwainbai, aged about 80 years, mother of Maniram (P.W. 5) by caste Dhobi after taking her meals, on 12-11-1988 at about 10.00 a.m. left to wash the clothes at the house of Santuram (P.W. 1) in village Dungaria. She was wearing gold and silver ornaments. When she did not return home, Maniram P.W. 5 lodged the report on 16-11-1988 to that effect, which was recorded in Rojnamcha Sanha (Ex. P. 8) at police out post Salhewada at serial No. 253. After the report, G.D. Dharmagude (P.W. 17) Assistant Sub-Inspector of Police left for search on 17-11-1988 and to investigate the matter. He also directed constables to go and enquire. When the Police Party reached near the dam of Nainiya village, Maniram (P.W. 5) again met them and informed that the dead body of his old mother is lying at Mainiya Dam. A Dehati Nalish (Ex. P. 9) and on that Marg Intimation (Ex. P. 10) were recorded. G.D. Dharamgude (PW 17) reached at the spot where he prepared a Panchnama Lash (Ex. P. 2) and then sent the dead body for post mortem examination Dr. Ashok Khare (P.W. 18) performed the autopsy on 18-11-1988 and found the condition of the body thus :
Badly decomposed body, full of maggots skeretalised, head, neck and legs present. Soft tissues of head, neck and legs are absent, only bones remains, each bone separated easily from other, skull is empty, only small quantity of fluid material is there; brain highly tangul, eosophagatus trachea all are absent destroyed by maggots and decomposition process, very small quantity of soft tissue present over abdomen; lower chest right arm separated from body due to decomposition; two silver ring present in wrist, three present in left wrist foot wear present in both foot; all eavites are full with maggots. No injury mark seen over bone and present soft tissues.
The Doctor did not find any external or internal injury on the body. Me opined that it is difficult to say the cause of death as no evidence detected on post mortem. The time of death since post mortem is more than 7 Gays. Post mortem report is Ex. P. 13-A.
3. On 1-12-1988, the accused was called at the police station, where he gave information under Section 27 of the Evidence Act which was recorded at Ex. P. 3. in pursuance of that information, the appellant took out an old bag (Jhola) kept under a stone in the Nallah of Bhadbhadi cut Dam from which one gold mohar (Article A), one gold Utarna (Article E), one silver sutiya (Article B), one pair of silver Ainthii/Potie (Article C) and one silver patta (Article D) were seized vide seizure memo (Ex. P. 4). All these articles were old which were identified by Maniram (P.W. 5) and Amritbai (P.W. 6) to be those belonging to the deceased, in the identification test held on 19-12-1988 by Narendra Kumar Sharma (P.W. 15), Naib Tahsildar. Test identification memo, is Ex. P. 7. After investigation the accused was put to trial under Section 302 and Section 404 of the Indian Penal Code. He denied the charges.
4. The prosecution examined in all 19 witnesses and exhibited 15 documents. There is no eye-witness in the case. The trial Court after appreciation of circumstantial evidence of Maniram Jharia (P.W. 10) of last seen and recovery of gold and silver ornaments at the instance of the accused, convicted and sentenced the accused as above.
5. In a case where the entire case of the prosecution rests on the circumstantial evidence, all circumstances from which conclusion of guilt is to be drawn must be fully established. It is well settled that there is a long distance between ‘may be true’ and ‘must be true’. The prosecution has to travel all the way to establish fully the chain of evidence which should be consistent only with the hypothesis of the guilt of the accused and this circumstance should be of conclusive nature and definite, tendency. They should be such as to exclude every hypothesis but one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond ad reasonable doubt. It is not necessary that each circumstance by itself be conclusive; but cumulatively must form unbroken chain of events leading of the proof of the guilt. If these circumstances or some of them can be explained by any of the reasonable hypothesis the accused must have the benefit of the hypothesis. In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct evidence to the commission of murder and case rests entirely on circumstantial evidence, the circumstances relied must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. See Kishore Chand v. State AIR 1990-SC 2140 : 1990 CriLJ 2289.
6. In the present case, the prosecution has led evidence to prove three circumstances which we. will take up one by one. The first circumstance is of the recovery of dead body, which is not at the instance of the accused. On post mortem examination performed by Ashok Khare (P.W. 18) the cause of death could not be known as the body was highly decomposed. He was not in a position to opine whether death was homicidal or natural, as he did not find any external or internal injuries. When the cause of death could not be known on post-mortem, the prosecution ought to have referred the dead body to Anatomy Expert, which was not done; that being a serious lacuna in the prosecution case in the absence of ligature mark on the body, it is difficult to hold that the death was homicidal.
7. To prove an offence of murder the death should be homicidal of which onus in a criminal trial is upon the prosecution. In the absence of legal proof of the death being homicidal, because of the serious lacuna of not obtaining the report of Anatomy Expert to prove homicidal death, the benefit will go to the accused and not to the prosecution, as this seals the fate of the prosecution and on this ground the accused cannot be held to legal criminality of the offence under Section 302 of the Indian Penal Code. See The State Government of M.P. v. Ramkrishna Ganpat Rao 1954 Cri LJ 244 : AIR 1954 SC 20, The State of Punjab v. Bhajan Singh 1975 Cri LJ 282 : AIR 1975 SC 258 a Division Bench decision of this Court in Megha v. State in Criminal Appeal No. 231/80(1), decided on 12-10-1982, 1983 MPWN 250 and Division Bench decision of Orissa and Rajasthan High Courts, Bhagoban Kirsani v. The State 1985 Cri LJ 868, Bhanwar Singh v. The State 1988 Cri LJ 1054.
8. The second circumstance is of last seen. To prove this, the prosecution has examined P.W. 10 Maniram Jharia who stated that a day prior when the deceased left for the village Dungaria, she was seen sitting taking sun-shine in front of her house where the accused was also sitting. Next day when he was standing at the grocery shop, he saw the deceased coming from her house going towards the village Salhewada. At that time the accused was also standing with some others near the shop. The witness admitted that he did not tell this (act to any body till his statement was recorded during the investigation. This is all evidence of last seen. No evidence has been led by the prosecution that the accused was last seen in the company of the deceased. Merely that the accused was seen near the grocery shop, it would be difficult to hold that the accused was last seen in the company of the deceased.
9. The third and last circumstance is of recovery of articles belonging to the deceased. In the absence of evidence of last seen and that of unusual conduct of the accused like abscondence and other evidence; recovery of articles on the information under Section 27 of the Evidence Act which have been identified as belonging to the deceased from the possession of the accused, even if that evidence is considered trust worthy, (hat will not itself be sufficient proof of the accused being the mruderer. It may give rise to suspicion against him; but the suspicion cannot take place of proof. Therefore, it would be hazardous to maintain the conviction of the appellant under Section 302 of the Indian Penal Code; for that we place reliance on (he decision in Joga Gola v. State of Gujarat 1982 Cri LJ 1579 : AIR 1982 SC 1227.
10. In the circumstances otter the recovery of gold and silver articles at the instance of the accused, which have been identified as that of the deceased, the accused has not claimed these ornaments to be his own, in the opinion of this Court, the accused would only be liable to be convicted under Section 404 of the Indian Penal Code for removing dishonestly the said articles knowing that such property was in possession of the deceased and was on the person of the deceased at the time of the death and the accused was not legally entitled to such possession.
11. Therefore, on over all circumstances of the case which have come on record, in the opinion of this Court, the conviction of the appellant-accused cannot be maintained under Section 302 of the Indian Penal Code while he cannot escape his conviction under Section 404 of the Indian Penal Code and me sentence awarded to him, which he has already served.
12. In the result, the conviction and sentence of the appellant under Section 404 of the Indian Penal Code is maintained; the conviction and sentence of the appellant under Section 302 of the Indian Penal Code are set aside: the appellant shall be released forthwith if not required in any other case.
