14 September 2004
Supreme Court
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RAJ KUMAR Vs STATE OF M.P.

Case number: Crl.A. No.-000120-000120 / 2004
Diary number: 21750 / 2003


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CASE NO.: Appeal (crl.)  120 of 2004

PETITIONER: Rajkumar                                         

RESPONDENT: State of M.P.                                    

DATE OF JUDGMENT: 14/09/2004

BENCH: P. VENKATARAMA REDDI & B.P. SINGH

JUDGMENT: JUDGMENT

P. Venkatarama Reddi, J.

The appellant herein was convicted under Section 304  Part II IPC and sentenced to suffer imprisonment for ten  years and to pay a fine of Rs.10,000/-. The High Court  reversed the order of acquittal of the Additional Sessions  Judge, Shivpuri in Sessions Case No. 90 of 1986 in which  charges were framed against the appellant under Sections  302 and 498A of IPC. The appellant was charged of  committing the murder of his wife Kalpana on 23.5.1986 at  about 2.00 p.m. at his house. The appellant married Kalpana  in May, 1985. At the time of the incident which took place a  year later, she was in the advanced stage of pregnancy.  

The accused Rajkumar and his brother Shyamlal  (PW15) were residing in the same building. Adjacent to this  building, their elder brother Keshav Prasad Agrawal (PW17)  was residing. The accused Rajkumar was occupying the third  floor. It was in the bed-room of the accused that his wife  was brutally attacked.

PW15\027the brother of the accused invited Suresh  Kumar Chokse (PW2), Gopal Krishna Dandatiya (PW5) and  Mahesh Prasad Pandey (PW13) for lunch on that crucial day.  At about 2.00 p.m., after hearing some noise and cries they  went to the upper floor of the building and found the wife of  the accused lying almost naked with face down in a pool of  blood in the bed room with injuries all over the body. PW15  went inside the room and asked her as to what happened.  She replied "Ve Mar Gaye" (the literal translation of ’Ve’  being ’they’). The mother of the accused, who was in the 2nd  floor, told PW13 while weeping that some altercation was  going on upstairs.

The victim succumbed to the injuries even before she  reached the hospital. The postmortem examination of the  body was done by PW3 at Shivpuri District Hospital at about  4.00 p.m. on the date of incident. He noticed two incised  wounds\027one ’L’ shaped over parietal region of scalp, the  vertical limb of wound measuring 4 cm. x 5 cm. x scalp deep  and horizontal limb being 2 cm. x = cm x scalp deep. Two  adjacent incised wounds were present over posterior and  middle part of frontal region of scalp. Contusions over many  parts viz., right shoulder, left eyebrow, left arm, right and  left thighs, dorsum of left hand extending upto left shoulder

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and a railway track contusion of 6 cm. x 2 cm. over lateral  aspect of right thigh were found. Horizontal abrasion of    4=" x =" over left side of chest just below rest of left  clavicle and another abrasion of 3 cm. x 1 cm. over right  anterior auxiliary line at 7th and 8th rib level were also found.  Dark red fresh clotted blood was present around the  wounds. The examination of uterus showed a well grown  foetus with fully developed male baby which was found  destroyed. PW3 expressed the view that the cause of death  was shock due to hemorrhage from various injuries  sustained by her. In cross examination, he clarified that  hemorrhage due to injuries 1 & 2 resulted in death and that  no fracture of skull has been found and no injury to the  brain was noticed. However, immediate unconsciousness  could be caused due to injuries 1 & 2. They were not of such  a nature that would cause immediate death. He opined that  injuries 1 & 2 would have been caused with a sharp-edged  weapon and it cannot be caused by a hammer or by article  ’O’ (iron pipe/rod). PW4, another Medical Officer also stated  that the cut wounds mentioned as injuries 1 & 2 could be  caused with a sharp-edged weapon.

The brother of the deceased (PW1) lodged the report to  the police at 3.00 p.m. and the FIR was registered on that  basis.  In the report, he stated that at about 2.00 p.m. he  got information from PW2, with whom he was employed,  that his brother-in-law Rajkumar had beaten his sister and  her condition was serious and that she was taken to  hospital. He added that at the hospital also he came to know  through others that the accused had beaten his sister. Thus,  he clearly incriminated the accused in the report given to the  police. Then the investigation was started by PW21. He had  called PW10\027the Scientific Assistant, who prepared site plan  and inspection notes, according to which there were  extensive blood-stains on walls, clothes, table and mongri.  PW21 seized the wooden mongri and the other blood-stained  articles found inside the room which was the scene of  offence. As seen from Ext.P.8, the wooden piece (’mongri’,  used while washing clothes) is of the length of one foot and  width of three inches. PW21 arrested the accused on the  next day i.e. on 24.5.1986 and at the instance of the  accused an iron pipe of the length of two feet, round in  shape at one side and flat at another side was seized from  the bath room. It was noted in the seizure memo (Ext. P.19)  that blood was present at the flat side of the seized iron  pipe. Though PW21 stated in his deposition that iron rod and  wooden piece were seized at the same time, it is clear from  Ext. P.19 & P.8\027seizure memos, that only the iron pipe was  seized after the arrest of the accused. On the same day, the  I.O.(PW21) having found traces of blood on the body of the  accused, took the accused to Forensic Science Laboratory’s  mobile unit and the dry blood scrapings were collected by  the in-charge of the mobile unit (PW10). It may be  mentioned at this stage that the reports of F.S.L. in regard  to seized articles etc., have not been produced for reasons  best known to the prosecution. The Investigating Officer also  recorded the statements of various witnesses including  PW17\027Keshav Prasad (the elder brother of the accused)  and PWs 2, 5, 13, 15 and others. Surprisingly, the younger  sister of the deceased(PW8), who allegedly came to the  house in the morning of 23.5.1986 and met the deceased  and accused, and her mother were examined about ten days  later. In fact, PW8 denied that she ever gave the statement  to police. The accused, in the course of his examination  under Section 313 either answered the questions in the

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negative or made bare denial. There was no eye-witness to  the incident.

All the witnesses who were produced for unfolding the  prosecution case, in particular PWs 2, 13, 15 and 17 were  declared as hostile witnesses by the prosecution after their  chief examination in part. The trial Court, on an elaborate consideration of the  circumstantial evidence including the medical evidence, held  that the participation of the accused in the crime was not  established beyond reasonable doubt. The learned Sessions  Judge found no evidentiary basis for the prosecution case in  regard to harassment or ill-treatment of the deceased for  dowry or otherwise. No other motive was found against the  accused. The trial Court held that the alleged dying  declaration made before the hostile witnesses was doubtful.  The recoveries on the basis of disclosure statements were  not satisfactorily established. The circumstances proved by  the prosecution were not at all sufficient to fix the guilt on  the accused. Therefore, the trial Court gave the benefit of  doubt to the appellant.

The High Court disagreed with the findings of the trial  Court and found that the circumstantial evidence was  complete enough to unmistakably point the hand of the  accused in the crime. The High Court while affirming the  view of the trial Court that there was no previous animosity  or motive to kill the wife, gave the following reasons for  holding that the circumstances established by the  prosecution formed a complete chain to prove beyond doubt  the involvement of the accused:

The deceased was seriously injured within the room in  which she used to live with her husband. The accused was  last seen with the deceased by PW8\027the sister of the  deceased, at about 9.00 a.m. The elder brothers of the  accused\027PWs15 and 17 claimed that the accused was at the  saw mill at the time the incident took place and on being  informed he came home and wept embracing the dead- body. No independent witness was examined by the accused  to show his presence at the saw mill. The accused himself  did not come forward with any such version. The accused  said nothing in his reply under Section 313 Cr.P.C. as to how  the deceased was injured inside their room. The accused  had maintained silence on this crucial aspect. No explanation  was given for the presence of dried up blood on his chest  and arm which was scrapped out by PW10 for examination.  A false theory of robbery and fatal assault by some stranger  was sought to be set up by PWs 15 & 17, but it was totally  unbelievable. There were many circumstances to indicate  that it could not have been a case of robbery. PW2 deposed  that the deceased had stated that "he had beaten me" and  that PW2 was definite that the deceased had not referred to  any stranger but to her husband only. The same thing was  said by PW5.

Coming to the last observation in the above para, we  must say that it is contrary to the evidence on record. In  making such observation, the High Court had either referred  to the statement under Section 161 recorded by the police  or the High Court evidently misread the deposition. What  was stated by PWs 2 & 5 was that Kalpana, on being  questioned by Shyamlal (PW15), stated that "they have  given beatings" (ve mar gaye). It is true that the plural  expression "Ve" is often used by ladies as a respectful term

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while referring to the husband. But it is not possible to say  definitely that the said expression was used not in the  normal plural sense but with reference to her husband. In  this context, it is to be noted that there is no evidence to the  effect that the deceased Kalpana used to refer to her  husband in that manner. The High Court, on a wrong  reading of the depositions of PWs 2 & 5, construed the   utterance of the deceased referred to above, virtually as a  dying declaration made by the deceased within the hearing  of PWs 2 & 5 implicating the appellant.

The second factor that weighed with the High Court  was the ’last seen’ evidence of PW8 coupled with the non- explanation of the injuries on the wife while in bed-room.  PW8, as already stated, was allegedly examined long after  the incident and no explanation was given for such belated  examination, as pointed out by the trial Judge. In fact, she  denied having made any statement to the police earlier. Be  that as it may, the evidence of PW8 does not advance the  prosecution case much. During the long gap of 4= hours in  the day time, there was a reasonable possibility of the  accused leaving the house to attend to his work or for any  other purpose. In fact, PW15\027the brother of the accused  who was declared as hostile witness, set up the version that  the accused was working at the saw mill at the crucial time  but it was not substantiated further. The accused did not, in  the course of his examination under Section 313 Cr.P.C.,  clarify whether he was at the house or elsewhere. He just  denied the knowledge of the incident. Though it is not safe  to act upon the version given by PW15, yet it was the duty  of the prosecution to establish that the accused had or  necessarily would have remained at the house around the  time when the attack took place. The ’last seen’ evidence of  PW8, even if believed, cannot be pressed into service by the  prosecution on account of the long time gap, that too during  day time. Barring the evidence of PW8 who claimed to have  seen the accused at 9.00 a.m. at his house, there is no  other evidence to establish the presence of the accused in  the house proximate to the time of occurrence. Therefore,  the vital link in this behalf is missing in the case.

The High Court harped on the fact that the theory of  robbery sought to be set up by PW15 was inconsistent with  all probabilities and therefore it was apparently a false plea.  But it does not absolve the prosecution of the burden to  connect the accused with the crime. The circumstantial  evidence should be so overwhelming as to exclude the  hypothesis of the innocence of the accused. Unfortunately,  such circumstantial links are lacking in the present case.  Moreover, the prosecution even failed to adduce evidence as  to the subsequent conduct of the appellant, which could  have provided one of the links in the chain of circumstantial  evidence. It is not the case of the prosecution that the  appellant was not seen in the house or in the hospital soon  after the incident.

One of the circumstances relied upon by the High Court  was the presence of the dried up blood traces on the chest  and arm of the accused. Though the scrapping of blood was  done by PW10 on the day of appellant’s arrest, the  laboratory report has not been produced. It is contended by  the learned counsel for the appellant that finding the blood  traces a day after the incident seems to be wholly  unrealistic. However, it is not necessary to examine this  aspect further in the absence of the blood analysis report.

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Amongst the main prosecution witnesses, PW5 was one  witness who was not treated hostile by the prosecution. His  evidence has been referred to in another context, supra.  None of the facts stated by him in the deposition would lead  to an inference that the accused had committed the crime.  On the other hand, his evidence as well as the evidence of  the Investigation Officer reveals that any outsider had easy  access to the third-floor of the building where the accused  and his wife are living. Above all, no motive has been proved or seriously  suggested for inflicting fatal injuries on the pregnant wife  whom the accused married a year back. In a case based on  circumstantial evidence, this factor also should be kept in  view.

In this state of evidence, the High Court should not  have disturbed the findings reached by the trial Court on an  elaborate consideration of the evidence adduced by the  prosecution. It is not a case in which it could be safely said  that the view taken by the trial Court was clearly  unreasonable or perverse and against the settled principles  of standard of proof and evaluation of evidence in a criminal  case.

We are, therefore, of the view that the conviction of  the appellant on the charge under Section 302 I.P.C. cannot  be sustained though suspicion looms large against the  accused. The material witnesses turning hostile and deficient  investigation\027the common maladies afflicting the criminal  justice system have irretrievably shattered the prosecution  case leaving the Court with no option but to acquit the  accused.

We therefore allow the appeal affirming the verdict of  acquittal given by the trial Court. The appellant shall be  released from prison forthwith.