High Court
Case Details
1 Reserved on 15.2.2022 Delivered on 8.8.2022 Court No. - 39 Case :- CRIMINAL APPEAL No. - 271 of 1990 Appellant :- Badri And Another Respondent :- State Counsel for Appellant :- B.N. Singh,Rahul Singh,Yanendra Pandey Counsel for Respondent :- A.G.A. Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Subhash Chandra Sharma,J. (Delivered by Hon'ble (Mrs.) Sunita Agarwal, J.) 1. Heard Sri B.N. Singh learned Advocate for appellant no. 2 Ram Kumar, Sri Rahul Singh learned Advocate for appellant no. 1 Badri and Sri Rupak Chaubey learned A.G.A. for State-respondent. 2. This appeal is directed against the judgment and order dated 7.2.1990 passed by the Special Judge (Dacoity Prohibition Area), Hamirpur in Session Trial No. 63/88 under Section 394/302/411 IPC, Police Station Jalalpur, District Hamirpur; whereby two appellants namely Badri and Ram Kumar herein have been convicted for the offence under Sections 394 and 302 IPC. The appellant Badri has also been convicted for the offence under Section 411 IPC. For the offence under Section 302 IPC, both the appellants have been sentenced for life imprisonment and seven years rigorous imprisonment for the offence under Section 394 IPC. The appellant Badri has been sentenced for three years rigorous imprisonment under Section 411 IPC. 3. The first information report of the incident occurred on 1.2.1988 at an unknown time, was lodged on 2.2.1988 at about 7.15 AM by the village peon namely Shiv Ram son of Pancha, Gram Bilgaon, Police Station Jalalpur, District Hamirpur. The said report was lodged against unknown persons. The statement in the written report were that a day before (i.e. on 1.2.1988) around evening, when the informant came to the village Bilgaon, Lallu son of Ram Dayal Tiwari a resident of Bilgaon 2 told him that his mother went to the Gram field to look after it and she was killed by someone. In the evening during search, she was found dead in the Gram field. Lallu son of the deceased brought the dead body to the village on a bullock cart. It is further narrated by the first informant that when he asked Lallu son of the deceased to go to the police station to lodge the report, Lallu requested him to go to the police station to lodge the report and told that no one was at home. The scribe of the written report as indicated therein was Rameshwar son of Ram Dayal. 4. On the lodging of the first information report, Check FIR was prepared by PW-6, Head Constable posted in the Police Station Jalalpur. He proved that the Check report was prepared on the written report given by the informant Shiv Ram and that the Check report was in his handwriting and signature, marked as Exhibit ‘Ka-5’. The G.D. entry of the Check report was proved as Exhibit ‘Ka-6’, being in the handwriting and signature of PW-6. In cross, PW-6 stated that after writing the Check report, he sent back the village peon and the statement of the informant was not recorded by the Investigating Officer in his presence. 5. PW-7 is the Constable who brought the dead body to the mortuary for the postmortem. He proved in his testimony that the dead body was handed over to him in sealed state on 2.2.1988 and he alongwith the Constable Rameshwar went to the mortuary with the letter and other related papers. After completion of the postmortem on 3.2.1988, the body alongwith other related papers was submitted in sealed state in the police station. He proved that during the entire period while the dead body was in his possession, no one had touched it. 6. PW-5 Dr. A.P. Pandey who conducted the postmortem on the dead body proved the injuries mentioned in the postmortem report which were incised wound caused by sharp object and abrasions. He stated that 3 rigor mortis was present in the lower limbs of the body. On internal examination, the brain membrane was found lacerated. All blood vessels were empty, peritoneum was found lacerated, stomach and small intestine were empty and large intestine was filled. The proximate time of death was mentioned to be 40 Hours prior to the postmortem. The cause of death had been stated as hemorrhage due to ante-mortem injuries. It was proved by PW-5 that the postmortem report was prepared in his handwriting and signature and it was exhibited as Exhibit ‘Ka-4’. He stated that there was possibility of the death having been caused on 1.2.1988 at around 5:00 AM and all the injuries from Injury No. 1 to 4 were caused by sharp object like ‘Axe’. Injury Nos. 5 and 6 could occur due to ‘dragging’. The injuries were, however, sufficient to cause death. In cross, PW-5 stated that there was no injury on the Nose of the deceased either of incised or lacerated nature. 7. The Investigating Officer, PW-9 stated that he had received
Facts
the investigation on the lodging of the first information report and went to the village alongwith the informant and fellow policemen. The statement of the informant was recorded in the village, inquest and other papers were prepared and the body was sealed. All those papers had been proved being in the handwriting and signature of PW-9 as Exhibits Ka-7, Ka-8 and Ka-9. The statement of Lallu Ram Tiwari, son of the deceased, under Section 161 Cr.P.C. was recorded after sending the dead body for the postmortem. He then reached at the place of the incident and the site plan was prepared at the instance of the son of the deceased namely Lallu Ram Tiwari who had entered in the witness box as PW-2. The site plan was proved as Exhibit Ka-10 being in the handwriting and signature of PW-9. The blood stained and normal earth was recovered from the spot and the recovery memo was proved as Exhibit Ka-11. It is noted in the memo prepared by PW-9 that at the time of the inquest from the dead body, one pair of slipper (plastic), two Todiya (silver), two Bichhiya (silver) and one gold Tippa (from the Nose of the deceased) were seized and given in the 4 custody of PW-2, Lallu Ram Tiwari. The Supurdaginama for the above articles was proved as Exhibit Ka-12. The site plan of the place where the inquest was conducted was proved as Exhibit Ka-13. On the arrest of accused Badri and Ram Kumar on 16.2.1988, the recovery of gold Pungaria (Nose ornament) of the deceased was made at the instance of appellant no. 1 Badri from his house and the murder weapon ‘Axe’ was recovered at the instance of appellant no. 2 Ram Kumar from his field. The recovery memo and the memo of arrest of both the appellants had been proved by PW-9 in his handwriting and signatures as Exhibit Ka-3. The memo of recovery of ‘Axe’ had been proved as Exhibit Ka-14 in the handwriting and signature of PW-9. A sealed bundle was opened in the Court and one Pungaria (Nose ornament) was shown to PW-9 who had identified the same being the recovered article and it was marked as Material Exhibit-1. Another sealed bundle was opened and the murder weapon ‘Axe’ and two pieces of its butt were shown and proved as Material Exhibits 2, 3 and 4. The site plans of the recovery of these articles were proved as Exhibit Ka-15 and Exhibit-16. PW-9 proved the charge sheet filed against two appellants as Exhibit Ka-17. The identification of the recovered article Pungaria (Nose ornament) was conducted in the presence of the Special Magistrate, Hamirpur who had entered in the witness-box as PW-8. The identification process was proved by PW-8 and the identification memo was proved as Exhibit Ka-2 being in his handwriting and signature. It was proved that the entire identification proceeding was conducted by him and after identification, the recovered article (gold Pungaria) was sealed again. 8. PW-4 Ram Kumar, a resident of the village had proved the recovery of Pungaria (Nose ornament) from the house of appellant Badri and submitted that he made his signature on the recovery memo which was marked as Exhibit Ka-3. 9. Amongst the witnesses of fact, PW-1 is the village peon who stated that in the evening on the fateful day, when he (PW-1) came to the 5 village, Lallu Tiwari (PW-2) told him that his mother went to the field and someone had killed her and that he (PW-2) went to the Gram field to look after his mother where she was found dead and that he (PW-2) brought the dead body to his house in a vehicle. PW-1 further stated that Lallu Tiwari (PW-2) asked him to go to the police station to lodge the first information report as he was all alone and that PW-2 showed his inability to go to the police station for the said reason. As the time then was around 8:00 PM, PW-1 did not go to the police station to lodge the report. On the next morning at about 4:00 AM, he went to the police station and on the way, the report was got scribed by Rameshwar at his shop near the bus stand. After writing the report, the scribe read over it and then PW-1 put his thumb impression. The written report was read over to this witness (PW- 1) in the Court and was also shown to him. He testified that the said report was lodged by him and his thumb impression was therein, which was marked as Exhibit Ka-1. In cross, PW-1 stated that he told the Investigating Officer that the entire incident was narrated to him by Lallu Tiwari (PW-2) in the village and that the said fact was told to the Investigating Officer when he came to the village at around 9:45 AM. PW-1 further stated that he remained with the dead body along with Lallu Tiwari (PW-2) in his house from 8:00 PM (on the fateful day) till 4:00 AM (on the next day) and left the house to lodge the report at around 4:00 AM. The suggestion that the Investigating Officer got his thumb impression on a paper was denied by PW-1. 10. PW-2 is Lallu Ram Tiwari, the son of the deceased, who stated that his mother was killed in the Gram field, where she went around 10-11 AM. She used to go to the field daily. He further stated that her mother used to wear the ornaments namely Pungaria, Tippa, Todiya, Glass Bangles, Bichhiya (toe ring) and she was wearing all those ornaments on the date of the incident. It was further stated by PW-2 that the daughter of a villager named Kaladhar had intimated him in the evening that his 6 mother was lying in the field and that she did not respond to the calling of that girl and seemed to have been killed. On hearing that, PW-2 alongwith one Mohan went to the field in a bullock cart where he found her mother as dead and the blood was spilled out. On the dead body, PW-2 found a wound of ‘Axe’ of about six angul (fingerbreadth). He then brought the body of his mother to his house in the bullock cart and sent intimation to his two brothers Amritlal and Jawaharlal. It was transpired that they both were outside the village. PW-2 then stated that he had no enmity with anyone in the village. He further stated that about 4-6 days prior to the incident, appellant no. 1 Badri requested him to lend Rs. 2000/- which he refused and he had apprehension that his mother was killed by appellants Badri and Ram Kumar. PW-2 further goes on to say in his examination-in- chief itself, that when he saw the dead body in the field, the gold Pungaria was missing from the Nose of his mother and the gem (Nagina) of the golden Tippa was also missing. The worth of gold ornament (Pungaria) must be about Rs. 1000/-. After about one month of the incident, he went to the Court to identify the missing Pungaria. At this stage, a sealed bundle was opened in the Court from which one gold Pungaria was taken out and shown to PW-2 who had identified the same as belonging to his mother, it was then exhibited as Material Exhibit-1. PW-2 then stated that the officer had prepared a memo of identification of Pungaria and his signature was obtained therein. This witness had identified his signature in paper nos. 18-Ka and 19-Ka and it was marked as Exhibit Ka-2. In cross, PW-2 stated that the Investigating Officer reached the village around 11:30 AM and conducted the inquest outside his house. Around 100-125 villagers were collected at that time. On further confrontation, PW-2 stated that the house of Khimma (PW-3) was located about 4-6 houses away from his own house and the house of Rajaram was at a distance of ½ furlong. PW-2 had shown ignorance about the fact that Khimma and Rajaram were present amongst the villagers at the time of the inquest. On further suggestion that Rajaram was witness of the 7 Panchayatnama (inquest), PW-2 replied that he did not remember that. He further stated that his younger brother Motilal Tiwari was not residing in the village and was living at Jhansi whose son Alok Krishna Tiwari was an Advocate in Tehsil Rath. PW-2 stated that he called his nephew Advocate Alok Krishna Tiwari after the incident who was present at the time of the inquest. He further stated that Alok Krishna Tiwari had reached the village when the Investigating Officer was writing the inquest. In cross, PW-2 was further confronted and told that his brother Amrit Lal was also present at the time of the inquest as he was called from Tehsil Rath. He further stated that his mother was fit enough to walk so she used to go daily to the field and on the fateful day, she went to the field after taking her meal which was ‘Roti’ (of wheat) and Dal (of Arhar). The suggestion that his wife and children used to fight with his mother and on the fateful day, the deceased (her mother) did not have her meal was categorically denied. PW-2 further gave an explanation that he had fear that he and his family might be suspected of killing his mother and hence he called Alok Krishna Tiwari, Advocate from Tehsil Rath. PW-2, on a query, stated that he told the village peon about the loss of ‘Pungaria’ and that Badri and Ram Kumar, the appellants herein, had demanded money from him but as to why the said fact had not been indicated in the first information report was not known to him. About the memo of Supurdagi, it was stated by PW-2 that the base of gold Tippa, which was left in the Nose of the deceased was given in his custody and that he had signed the memo of Supurdagi. He then stated that he did not mention about ‘Pungaria’ at the time of the inquest as he was not in his senses. PW-2 further stated that when he reached the field, the body was lying flat and the blood that oozed out had dried. There was no injury on the mouth of the deceased and there was one injury on the left side of her face. He stated that his mother used to wear ‘Pungaria’ on the left side of her Nose. The suggestion that loss of ‘Pungaria’ from the dead body was mentioned 8 by him only to give colour to the case was denied. PW-2 reiterated that the fact that his mother was lying in the field was intimated to him by village girl Sunita at about 5:00 PM and that he was not worried about his mother till then as she used to go to the field around 11:00 AM and return by 5:00 PM. He reached at the field at around 6:00 PM and within 5-10 minutes, he came to know that his mother was killed. Mohan who had accompanied him was his cousin and he (PW-2) himself did not go to the police station because of fear of implication in the murder of his mother. PW-2 further stated that he had fear that Badri and Ram Kumar might kill him. 11. PW-3 is Khimma, a resident of the village, who stated that he knew appellants Badri and Ram Kumar from before. PW-3, looking to the appellants standing in the Court, stated that Badri was present there but he could not recognize appellant Ram Kumar and stated that he looked like Badri. PW-3 then stated that his vision was weak. About the day of the incident, PW-3 stated that he was going to get fodder for his cattle around 11-12 noon on the fateful day and Rajaram another villager was accompanying him. When they reached near the ‘Imli wale Khet’, he saw Badri and Ram Kumar (the appellants) sitting there chewing ‘Hola’. They were sitting in the field of Shukla at that time, who was the resident of village Dhauhal. They both (appellants) asked him as to where was he (PW-3) going and when he answered that he was going to get fodder for his cattle, the appellants told that they would also accompany him but they did not join him. When he (PW-3) moved further, he saw the deceased (Waman Dai) sitting in her field, who was mother of Lallu Tiwari (PW-2) and on seeing that, he moved further and went to collect fodder for his cattle. In the evening when he returned back his home, he got to know that mother of Lallu namely Waman Dai had been killed. A leading question was put to this witness which was answered in the following manner:- “प्रश्नः जब तुमने मुल्जि(cid:14)जमान वद्री व राम कुमार को होला चबाते 9 देखा तव वहाँ कुछ रखा था? उत्तर- कु(cid:14)हाड़ी रखी थी।” As to the identification of the appellants, PW-3 explained that he had a weak vision and, as such, could not identify appellant Ram Kumar and mentioned him as Badri. As per the observation of the Court, the distance between the accused and this witness in the Court was 10-11 ft. PW-3 then stated that he did not go to the house of the deceased to see the dead body after coming to know about that murder. The police did not interrogate him from the date of the incident till his deposition in the Court. He then stated that he did not tell the Investigating Officer about having seen ‘Axe’ near Badri and denied that he told that ‘Axe’ was lying near Ram Kumar. The statement of this witness is very shaky, inasmuch as, he says that he knew appellants but he could not identify them in the Court. The answer given by him that he saw Kulhari (Axe) near the accused appellants when they were sitting in the field, was on a leading question put to him by the prosecution. The statements of PW-3 that the police did not interrogate him till the date of his deposition in the Court and then that he told the police that he saw Kulhari (Axe) beside Badri are self- contradictory. PW-3 reiterated, in cross, that he did not go to the house of the deceased and police had never interrogated him. His testimony that he had seen both the appellants in the field on the fateful day is unworthy of credence because of the contradictions on the material aspects of the case. 12. Even otherwise, at this juncture, it is relevant to note that PW-3 cannot be kept in the category of witness of last seen, inasmuch as, he did not witness the deceased and the accused together prior to the incident nor any incriminating circumstance could be brought by him in his testimony so as to implicate the appellants in any manner. The deposition of PW-3, who was projected as a witness of last seen by the prosecution, is liable to be discarded as such. The trial court has erred in 10 relying upon the evidence of this witness by recording that his testimony cannot be rejected on the ground that he did not identify the accused in the Court. It may be noted that other discrepancies in the testimony of PW-3 were simply ignored by the trial court while treating him as credible witness. 13. The witness of recovery of Pungaria Ram Kumar had entered in the witness box as PW-4. He stated that he knew appellants Badri and Ram Kumar as also PW-2 Lallu Tiwari, as they were the residents of the same village. He states that after 15 days after murder of the mother of Lallu Tiwari (PW-2), the Investigating Officer came to the village and he (PW-4) came to know that the Investigating Officer went around the school. He then himself went to see and found that the Investigating Officer was taking along appellants Badri and Ram Kumar and the time then was around 2:45 PM. At that time, the Investigating Officer asked him to accompany to the house of Badri and Ram Kumar. They then went together to the house of Badri who went ahead of all of them. The doors of the house of Badri were opened and they all went inside. In the room on the Northern side of the house, a box was kept which was locked. Badri took out the key from the almirah, opened the lock and took out one ‘Pungaria’ covered in a paper. It was then sealed by the Investigating Officer and the signature of PW-4 was obtained on the recovery memo, identified and marked as Exhibit Ka-3. PW-4 stated that appellant Badri told that he took out ‘Pungaria’ after killing the deceased (Waman Dai). In cross, PW-4 stated that the ‘Pungaria’ was recovered at around 4:00 PM. On further confrontation, PW-4 stated that he knew Advocate Alok Tiwari who was practising in the Tehsil Rath and that he was also present in the Court on the date of his deposition. PW-4, however, denied the suggestion that there was any litigation going on in his family. PW-4 further stated that when the Investigating Officer entered in the house of Badri, uncle of Badri was present there whose name was Jhanda. The almirah from which the key was taken out was unlocked and they left the 11 lock and key near the box after opening it. PW-4 then stated that they all left the house after taking ‘Pungaria’ and on the recovery memo only he and one Vrindavan had put signatures, no other person had signed the recovery memo. PW-4 then stated that he came back to his house after recovery. The suggestion that the Advocate had told him to become witness and that no recovery was made in his presence was denied by PW-4. Further suggestion of making a false deposition was also denied. 14. Both the appellants were examined under Section 313 Cr.P.C. They had denied each and every incriminating circumstance put to them and stated that they were implicated due to enmity but no defence evidence was produced by any of the appellants herein. 15. Before appreciation of the prosecution evidence, it is pertinent to note that present is a case of circumstantial evidence as there was no eyewitness to the murder which occurred during the day time in the field of the deceased. 16. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be so complete, forming a chain that there should be no gap left in the chain of evidence. The proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent or incompatible with his innocence. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. The law in this regard is settled in a plethora of the judicial pronouncement which are referred and relied in Nizam and another vs. State of Rajasthan1. 17. In light of the above principle, in the case at hand, it is to be seen as to whether in the facts and circumstances of this case, the 1 (2016) 1 SCC 550 12 involvement of appellants in the offence under Sections 302 and 394 can be said to have been proved by the prosecution beyond reasonable doubt. The correctness of the order of conviction of appellant Badri for the offence under Section 411 IPC is also to be examined. 18. From appreciation of the evidence led by the prosecution, it is to be noted that no one had seen the accused persons with the deceased. As per the statement of PW-2, his mother, the deceased, had left her house at around 10-11 AM and the information of her death was received by PW-2 at around 5:00 PM. He (PW-2) himself went to the field and saw the dead body around 6:00 PM. As noted above, the evidence of PW-3 that he had seen both the accused persons in the field of Shukla near the field of the deceased, along with an ‘Axe’ (Kulhari) is unreliable as it is full of contradictions and the introduction of Kulhari (Axe) at his instance was a result of a leading question put by the prosecution counsel during the examination- in-chief of PW-3. This witness, thus, described the circumstance as he allegedly noticed, which were put in his mouth by the prosecution. Further, the motive assigned to commit the crime to both the appellants herein in his deposition by PW-2, is very weak and unconvincing. It could further not be established by any other circumstance except the statement of PW-2 in the Court which itself is a material improvement as a result of deliberations. The statement of PW-2 in his examination-in-chief was that Rs. 2000/- was sought to be borrowed by appellant Badri but in his cross-examination, PW-2 stated that he told the village peon before lodging of the first information report that Badri and Ram Kumar (both the appellants) sought to borrow money from him which he refused to give. The statement of PW-2 of attributing motive to one of the accused in his examination-in-chief and then to both the accused in the cross-examination is a casual and self-contradictory statement. It may be noted that the FIR was lodged at the instance of PW- 2 but both the appellants had not been named therein. 13 The prosecution brought one more witness as PW-10 to prove the extra judicial confession made by the appellants allegedly after killing the deceased and the motive behind the crime. As per the testimony of this witness, the accused persons had confessed the commission of crime before him prior to their arrest when they met him (PW-10) near the bus stop after 10-11 days of the incident. PW-10 stated that he did not mention anyone about their confession. The testimony of this witness cannot be treated to be a link to form the chain of incriminating circumstances as the evidence of extra-judicial confession is a very weak piece of evidence. In absence of any other incriminating circumstance, the statement of PW-10 about the confession made by the accused persons cannot be relied to sustain the conviction. The only circumstance which remains to be seen and could have been read against the appellants is the recovery of ‘Pungaria’ from the house of appellant Badri and Axe (Kulhari) from the field of appellant Ram Kumar. 19. We may note that the recovered ‘Axe (Kulahari)’ was sent for forensic examination and in a large portion of the Axe, human blood was found but we cannot be oblivious of the fact that the recovery of ‘Axe’ was made from an open place. The circumstance in which the recovery had been made was proved by the Investigating Officer examined as PW-9 who stated on oath that on the disclosure statement of appellant Ram Kumar, he reached to the field where ‘Axe’ was recovered by digging the field. The recovery memo of ‘Axe’ was proved as Exhibit Ka-14. About the recovery of Pungaria, it was stated by PW-9 that on the information of an informer, he arrested both the accused-appellants together and on their disclosure statement, he first went to the house of Badri and ‘Pungaria’ was recovered from a box, lock of which was opened by appellant Badri from the key kept in an Almirah of the house. 14 20. PW-9 admitted that he did not take into possession the lock and key and the copy of the recovery memo was not given to appellant Badri. An excuse was given by PW-9 that he forgot to give the copy of the recovery memo to appellant Badri though a copy was prepared and the fact that the copy of recovery memo was also prepared was also not disclosed in the Case Diary. There are other circumstances relating to recovery of ‘Pungaria’, which are also relevant to be noted here. The recovery was shown to have been made from the house of appellant Badri and as per the statement of the witness of recovery namely PW-4, the door of the house was open when they reached there. The uncle of appellant Badri namely Jhanda was present in the house but neither any search warrant was prepared nor the signature of the occupant(s) of the house was taken on the recovery memo. The Investigating Officer, at one point of time, stated that he forgot to give the copy of the recovery memo to appellant Badri but in another breath he stated that appellant Badri refused to sign it. For the arrest of appellant Ram Kumar, PW-9 admitted that he did not prepare a separate memo of arrest of both the appellants and arrest of both the appellant had been shown together from one place. It may further be noted that the story of loss of ‘Pungaria’ was introduced by PW-2 after the inquest of the deceased. PW-2, son of the deceased, in his testimony, admitted that his mother used to wear ‘Pungaria’ but the loss of it from the dead body was neither noticed by him nor disclosed to the Investigating Officer till the inquest was completed. It is not known as to when this story was conceived by PW-2 and the motive was attributed to the appellants herein for committing the offence of Robbery and murder. 21. The conduct of PW-2 in the whole scenario is also to be noticed when he stated that on the fateful day he came to know at around 5:00 PM that his mother was lying in the field and then he went to the field along with his cousin Mohan in a bullock cart. On coming to know that his mother had died and seeing injuries on her neck, instead of going 15 to the police station to report the crime, PW-2 carried the dead body to his home. Even, thereafter, he neither reported the crime to anyone nor went to lodge the first information report till the village peon reached his house at around 8:00 PM. PW-2 refused to accompany the village peon to the police station to lodge the report and even did not give any written report to the peon, who himself got the report scribed and lodged it at around 7:15 AM. It is admitted to PW-2 that he had two brothers Amrit Lal and Jawahar Lal and gave an explanation that they were not present in the village when he called them after the murder. There were neighbours who were not informed about the death of his mother. His (PW-2) Cousin Mohan who accompanied him to the field is conspicuously missing from the whole scene. The statement of PW-1, the first informant, that the son of the deceased was all alone in the house is not substantiated from the record, inasmuch as, in the statement of PW-2 it had come that he had a wife and children. PW-2 when confronted as to why he did not lodge the first information report, offered an explanation that he had a fear that he might be implicated in the murder of his mother, which is unworthy of acceptance. It is further noticeable that the incident had occurred during the day time as the dead body, according to PW-2, was seen by a village girl who had intimated him around 5:00 PM. There were other fields nearby and every other farmer of the nearby fields remained silent. The village girl who had allegedly seen the dead body and intimated PW-2 was not brought in the witness box nor she was interrogated by the investigating officer. The Investigating Officer did not conduct the investigation in a proper manner. It seems that the prosecution had collected evidence after deliberations so as to create each and every circumstance in a zeal to solve the crime but none of them could be proved beyond doubt nor they could be connected to each other to form a complete chain to infer about the principal fact of murder with the motive to commit robbery. 22. On due appreciation of evidence, in the totality of the facts 16
Legal Reasoning
and circumstances of the instant case, we find that there are many loose ends which could not be connected with each other so as to make a complete chain to unerringly point towards the guilt of the accused persons inconsistent with their innocence. PW-2 had raised only a suspicion about the involvement of the accused persons in his statement under Section 161 Cr.P.C. and the basis of the said suspicion was that since the appellants were in need of money, they might have committed the murder to rob the deceased of her ornaments. 23. The motive attributed to the appellants by the prosecution was that they had lost in the gamble and needed money to clear their debts. In the said scenario, it is not understandable as to why after killing the deceased when no one was around or had seen them, the appellants would rob only one ornament, leaving all other gold and silver ornaments on the dead body. The accused persons were villagers and very well known to the deceased. It is also not understandable as to why they would venture to rob the deceased knowing that she would recognize them. Motive of robbery does not seem to be present in this case. It is also to be noted that the accused persons were arrested after about 14-15 days of the incident. The FIR was unnamed. It will be unreasonable to believe that the appellant Badri would keep the stolen gold Article ‘Pungaria’ in a box in his house under lock and key for about 14-15 days when both the appellants were suspected in the murder case. We found the role of the Investigating Officer as dubious. In the given circumstance, the conviction of the appellants by the trial court solely on the basis of the alleged recovery of ‘Pungaria’ and ‘Axe’ which too is doubtful, cannot be sustained. On the basis of alleged recovery and identification of ‘Pungaria’ by PW-2, considering the manner in which the prosecution had created the circumstances of the crime, it would be hazardous to implicate the appellants in the offence of robbery and murder. It is settled that in a case depending entirely on circumstantial 17 evidence, the absence of motive is a factor that weighs in favour of the defence/accused. [Reference Babu vs. State of Kerala2. 24. In the facts and circumstances of the instant case, PW-2, the son of the deceased raised only suspicion about the involvement of the accused persons but the prosecution had failed to prove it. The entire edifice of the prosecution case for implicating the accused persons in the murder of the deceased crumbled on its own on account of absence of motive. It is settled that the suspicion, however, strong it may be, cannot take the place of proof and the strong suspicion, in itself, is not sufficient to lead to the conclusion that the guilt of the accused stands established beyond reasonable doubt. [Reference Anjlus Dungdung vs. State of Jharkhand3; Ganpat Singh vs. State of Madhya Pradesh4] 25. In the totality of the facts and circumstances of the case, we find that the prosecution has utterly failed to prove each and every circumstance of commission of crime beyond reasonable doubt from which inference can be drawn about the guilt of the accused persons. The conduct of PW-2 in not going to the police station straightway from the field where the dead body of his mother was lying and waiting till the morning on the next day when the first information report was lodged by the village Peon clearly shows that the entire story put forth by the prosecution is a result of afterthought and deliberations and the prosecution had suppressed the genesis of the incident. 26. For the above discussion, the judgment and order dated 7.2.1990 passed by the Special Judge (Dacoity Prohibition Area), Hamirpur in Session Trial No. 63/88 under Section 394/302/411 IPC, Police Station Jalalpur, District Hamirpur having been found to suffer from serious error of law, being a result of mis-appreciation of the evidence on record is hereby set aside.