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PETITIONER: SAKHARAM

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT12/02/1992

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) SAHAI, R.M. (J)

CITATION:  1992 AIR  758            1992 SCR  (1) 638  1992 SCC  (2) 153        JT 1992 (1)   515  1992 SCALE  (1)320

ACT:      Penal  Code, 1860-Section 302-Conviction  under-Absence of motive in a case of circumstantial evidence-Relevancy  of -Accused  and  deceased ‘children’ defined in  the  Children Act,  1960-Juvenile-innocence-Presumption of  -Prosecution’s duty.

HEADNOTE:      The  prosecution’s case was that a few days before  the incident the accused-appellant’s grand father suffered heart attack  and on his hospitalisation, accused’s  parents  were attending on him.      The  deceased,  who  was the aunt of  the  accused  and daughter-in-law  of accused’s grand father came to  see  her ailing father-in-law.      Thereafter the deceased went to her father-in-law’s one room  house  in the village, where the accused  was  staying alone and stayed for 8/10 days.      The  accused  was  aged  about 16  and  his  aunt,  the deceased was aged 17/18.      On 29.10.1968 at about noon time, the neighbours  heard a gun-shot sound from the accused’s house.  On reaching  the accused’s  house they found the deceased lying dead  on  the floor and a 12 bore gun on the bed.      One  of the neighbours was an uncle of the accused,  to whom,   the  accused  told  crying,  "run  uncle  what   has happened".      The trial Court convicted the appellant for murder  and sentenced him to imprisonment for life.      Accused’s  appeal  was  dismissed by  the  High  Court, against which by special leave this appeal was filed.      Allowing the appeal of the accused, this Court.      HELD:  1.01. The appellant was present at the time  and place of                                                        639 occurrence but this circumstance alone is not sufficient  to conclude  that it was the appellant who fired  the  gun-shot and  he did so with the intention of killing  the  deceased. [641F-G]      1.02. There is absolutely no motive on the part of  the appellant to murder the deceased.  Absence of motive may not

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be relevant in a case where the evidence is overwhelming but it  is  a  plus-point for the accused in a  case  where  the evidence against him is only circumstantial.  [642B]      1.03.  His  telling his uncle while crying  "run  uncle what  has happened" shows that the happening was beyond  his comprehension.  It could be an accident while fiddling  with the gun.  [641H, 642A]      1.04.  The appellant and the deceased were children  as defined  under the Children Act, 1960.  When presumption  of juvenile-innocence   is  sought  to  be  displaced  by   the prosecution  on  the basis  of  circumstantial-evidence  the circumstances must unmistakably prove the guilt beyond doubt                                                       [642C]      1.05.  The prosecution has not been able to  prove  the charge against the appellant beyond doubt. [642D]

JUDGMENT:      CRIMINAL  APPELLANT JURISDICTION : Criminal Appeal  No. 370 of 1980.      From  the  Judgment and Order dated  30.1.1980  of  the Madhya Pradesh High Court in Crl. A. No. 311 of 1973.      T. Sridharan for the Appellant.      Uma Nath Singh for the Respondent.      The Judgment of the Court was delivered by      KULDIP SINGH, J. Sakharam and Awadhrani, aged about  16 and  17/18  were together in a one room-house  belonging  to Sakharam’s grandfather in a village.  Awadhrani was  married to  Sakharam’s uncle (father’s younger brother). A  gun-shot was heard and the neighbours rushed to the room.   Awadhrani was  found lying dead on the floor with a  gun-shot  injury. Sakharam was standing nearby and was crying. On these  facts the  trial  court  convicted  Sakharam  for  the  murder  of Awadhrani and sentenced him                                                        640 to imprisonment for life.  His appeal to the High Court  was dismissed. Hence this appeal via special leave.      The  appellant along with his father  and  grand-father was  living in a village near Jabalpur.  Awadhrani  was  the wife  of Govindprasad, uncle of the appellant.  Govindprasad was employed at Bhopal and Awadhrani was living with him.  A few  days before the incident appellant’s  grand-father  had suffered  heart attack and was shifted to  Jabalpur  Medical College.   Appellant’s father and mother were  attending  on his  grand father at the hospital.  Awadhrani had come  from Bhopal to Jabalpur to see her father-in-law.  She stayed  at Jabalpur  for  about  3/4 days and thereafter  went  to  the village where the appellant was staying alone in the  family house.   After  about 8/10 days of stay in  the  village  on October  29, 1968 at about noon time the neighbours heard  a gun-shot  sound  from the house of the  appellant.   Mahadeo (P.W.4),  one  of  the  neighbours, was  the  uncle  of  the appellant.   As  soon as Mahadeo reached appellant’s  house, the  appellant, while crying, told him "run uncle  what  has happened". The neighbours found Awadhrani lying dead on  the floor  and  a  12  bore gun lying on the  bed.   It  is  not disputed that the appellant’s grand-father had two  licenced guns which were lying in the same room.      There  is  no direct evidence  against  the  appellant. There  is  no reason, conscious or  sub-conscious,  for  the appellant to commit the murder.  They have been together  in the  one  room-house  for about 8/10  days.   The  appellant denied having committed the offence but gave no  explanation as to how and under what circumstances the deceased got  the

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fatal gun-shot injury.      At  the  trial  it  was  suggested  that  the  deceased committed suicide.  Plea of alibi was also raised on  behalf of  the  appellant.  The courts below,  on  appreciation  of evidence,  rejected both the pleas.  We see no infirmity  in the  said  findings of the courts below and agree  with  the same.      The trial court found that the following  circumstances came to be established beyond doubt:-      1.  That  on  the date and time  of  the  incident  the accused and the deceased were the only two occupants of  the house which consisted of one room.                                                        641      2. That the accused when examined by Dr. V.P. Gupta  on July 1, 1972 was found capable of having sexual intercourse.      3.  The deceased Awadhrani was found dead in  the  room which  at  the  time of the incident  was  occupied  by  the accused and the deceased.      4.  Soon after the incident when the witnesses  visited the  house, the accused who was present, did not assign  any reason for the death of the deceased and kept quiet.      5. After the incident an  attempt was made to show that the  deceased died by committing suicide.  A plea  of  alibi was also set up on behalf of the accused.      On the basis of the above circumstances the trial court convicted  the appellant for the murder of  Awadhrani.   The High Court upheld the conviction.      So far as the defence set-up at the trial on behalf  of the  appellant  is  concerned  that cannot  be  taken  as  a circumstance  against  him.  The appellant himself  did  not raise any plea in his statement made before the trial court. Simply because the pleas of suicide and alibi have failed at the  trial  no adverse inference can be  drawn  against  the appellant.   The  guilt of the appellant has  to  be  proved beyond  reasonable  doubt  on  the  basis  of  the  evidence produced by the prosecution.      It  is  no  doubt correct that the  appellant  and  the deceased  were together at the time when gun-shot sound  was heard  and  the witnesses who reached  the  spot  thereafter found  the  appellant  standing nearby  the  dead  body  and crying.  It may, therefore, be reasonable to infer that  the appellant  was present at the time and place  of  occurrence but  this circumstance alone is not sufficient  to  conclude that it was the appellant who fired the gun-shot and he  did so with the intention of killing the deceased. The appellant and  the  deceased were living in the house for  about  8/10 days prior to the occurrence.  There is no evidence to  show that he ever made any sexual advances towards the  deceased. It is no body’s case that before the gun-shot was fired  any attempt to molest or outrage the modesty of the deceased was made.   The  appellant did not run-away from  the  place  of occurrence though he had ample opportunity to do so.   There is  nothing on the record to show that he could  handle  the gun.  His telling Mahadeo  while                                                        642 crying  "run  uncle  what  has  happened"  shows  that   the happening  was  beyond his comprehension.  It  could  be  an accident while fiddling with the gun.      There  is  absolutely  no motive on  the  part  of  the appellant to murder the deceased. Absence of motive may  not be relevant in a case where the evidence is overwhelming but it  is  a  plus-point for the accused in a  case  where  the evidence against him is only circumstantial.      The  appellant, on the date of occurrence, was a  young boy  and  the deceased was his aunt in the same  age  group.

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Both were children as defined under the Children Act,  1960. When  presumption  of  juvenile-innocence is  sought  to  be displaced by the prosecution on the basis of circumstantial- evidence the circumstance must unmistakably prove the  guilt beyond doubt.      We  have  given  our thoughtful  consideration  to  the circumstances relied-upon by the courts below.  We have  not been  able to dispel our doubts.  We are satisfied that  the prosecution  has not been able to prove the  charge  against the appellant beyond doubt.  We, therefore, allow the appeal and  set aside the conviction and sentence of the  appellant and acquit him.  The appellant is on bail.  His bail-bond is discharged. V.P.R.                                       Appeal allowed.                                                        643