KANHAI MISHRA @ KANHAIYA MISAR versus STATE OF BIHAR

KANHAI MISHRA @ KANHAIYA MISAR

STATEOFBIHAR

FEBRUARY27, 2001

[K.T. THOMAS, RP. SETHI AND B.N. AGRAWAL, JJ.]

Penal Code, Sections 302 and 376-Appellant allegedly raped and murdered deceased after taking her to an orchard-F ard-beyan was recorded after 5 hours-No direct ev.idence available-High Court upheld death sen-tence passed by Trial Court:-On appeal Held, circumstantial evidence should be wholly inconsistent with the innocence of the accused and consistent with his guilt to attract conviction-Court should endeavour to find out whether the accused committed the crime and circumstances form complete chain-Inconsistencies, contradictions and suppression present in statements of 1.0., informant and other witnesses-Material lvitnesses who could have given direct evidence were not examined-Undue delay in lodging FI.R. gave enough time for deliberation:-Only one circumstance that deceased and appellant left together was proved, which cannot be said to be inconsistent with his innocence-However, such ghastly crime har to go unpunished because of /aches on the part of prosecution in proving the circumstantial evidence-Conviction converted into acquittal.

The appellant allegedly had enticed the deceased and murder her after committing rape. According to the prosecution case, he took the deceased to an orchard and after about an hour some co-villagers in· formed P.W. 3, her father, that she was lying dead over there. The police was informed and fard-beyan was recorded after five hours. 10 witnesses were examined to prove the circumstances against the appellant as there was no direct evidence. Trial Court and the High Court enumerated six circumstances against the appellant (1) appellant had come to the house of the deceased and taken her along with him (2) they both left together (3) they were seen going towards the orchard (4) they were seen plucking flowers (5) appellant was seen fleeing away from the place of occurrence (6) appellant was absconding for about month. Both the courts below convicted the appellant under Section 302 and 376 IPC and sentenced him to death. Hence this appeal.

Allowing the appeal, the Court

HELD : 1. It is well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such character that the same is wholly inconsistent with innocence of the accused and is consistent only with his guilt. The incriminating circumstances for being used against the accused must be such as to lead only to hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. In case of circumstantial evidence the whole endeavour and effort of the court should be to find out whether the crime was committed by the accused and the circumstances proved from themselves into complete chain unerringly pointing to the guilt of the accused. If the circumstances proved against the accused in case are consistent either with the innocence of the accused or with his guilt, he is entitled to the benefit of doubt. [163-G-H; 164-A]

M.G. Agarwal v. State of Maharashtra, AIR (1963) SC 200; Ronny Alias Rona/ James Alwaris & Ors. v. Stale of Maharashtra, [1998] 3 SCC 625 and Joseph S/o. Wooveli Paulo v. Stale of Kera/a, [2000] 5 SCC 197, relied on.

2. The circumstance that after the alleged occurrence the appellant absconded from his house, apart from not being proved by credible materi-als cannot be used against him as from his statement recorded under Section 313 Cr.P.C., it would be amply clear that this circumstance was never put to him and consequently the same cannot be used against him. [ 168-G)

Kehar Singh & Ors. v. State (Delhi Administration), [1988] 3 SCC 609, relied on.

3. Only one circumstance has been proved against the appellant and that cannot be said to be inconsistent with his innocence. However, it is sad that such ghastly crime of first committing rape upon teenager and thereafter brutally murdering her is going unpunished because of !aches on the part of the prosecution. The conviction is converted into acquittal, as the solitary circumstance proved against him can not form the basis of conviction. [169-D]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 887 of 2000.

From the Judgment and Order dated 19.5.2000 of the fatna High Court in D.R. No. 3 of 1999 with Crl.A. No. 234 of 1999 (D.B.).

M. Qamaruddin, (A.C.) for the Appellant.

B.B. Singh and Kumar Rajesh Singh for the Respondent.

The Judgment of the Court was delivered by

B.N. AGRAWAL, J. This appeal by special leave has been preferred against the judgment of Patna High Court confinning that of the Sessions Court whereby the appellant was convicted under Section 302 of the Indian Penal Code and sentenced to death and to pay fine of Rs. 50001- inasmuch as further convicted under Section 376 of the Indian Penal Code and sen-tenced to undergo simple imprisonment for life and to pay fine of Rs. 5000/-.

The prosecution case in shon is that on the morning of 27th July, 1995 at about 5 O' clock the ·appellant, who was co-villager of Ram Sunder Jha (PW.3), the infonnant, came to his house on the pretext of taking tobacco from him. At that time, the appellant told Rita Kumari, daughter of the infonnant, that there were plenty of flowers in the orchard of Shobha Kant Mishra and asked her to go with him to the said orchard stating that he would also help her in plucking flowers and in this way enticed Rita Kumari for going to the said orchard. Thereafter, Rita Kumari went out of the house for plucking flowers followed by the appellant. At 6 A.M., some of the co-villagers came to the house of the infonnant and intimated him that dead body of his daughter, Rita Kumari, was lying in the jute field of Prabhu Mishra whereupon he along with them and his family members went there and found his daughter lying on the ground and her red undergarment removed from one of her legs. It was also noticed that there were white spots resembling semen around her genital organ and black marks of scratches around both sides of her neck. The flower basket with flowers was found scattered there and her chappals were' seen at some distance. The infonnant and his companions having felt that Rita Kumari was unconscious, lifted and brought her to nearby well belonging to one Jai Narain Mishra where water wa• poured on her whereafter only it transpired that she was already dead as she did not regain consciousness. The dead body of Rita Kumari was brought by the infonnant to his house. Stating the aforesaid facts, fard-beyan of the infonnant was recorded at his house by the Officer-in-charge of Pratap Ganj Police Station on the same day at II A.M. wherein it was also alleged that the appellant enticed her daughter, committed rape upon her and killed her by pressing the neck.

During the trial the prosecution examined 10 witnesses in all to prove the circumstances against the appellant as undisputedly there is no direct evidence to show his complicity with the crime. Upon the completion of trial, the appellant having been convicted by the trial court, as stated above, and the said conviction having been confirmed by the High Cour~ the present appeal by special leave is before us.

The circumstances which weighed with the two courts below in con-victing the appellant may be enumerated hereunder:-

!. The appellant came to the house of the informant on the date of the occurrence at 5 O'clock in the morning on the pretext of taking tobacco from him, met him and his daughter, Rita Kumari, enticed her to go to the orchard of Shobha Kant Mishra for plucking flowers on Madhu Srawani day for being used by elder daughter of the informan~ who was newly married, for perform-ing puja.

II. The appellant left the house of the informant along with Rita Kumari for the orchard.

III. The appellant and the deceased-Rita Kumari were seen going toward~ the orchard.

IV. The appellant and the deceased were seen in the field of Shobha Kant Mishra plucking flowers.

V. The appellant was seen fleeing away in the vicinity of the jute field immediately after the alleged occurrence.

VI. Immediately after the alleged occurrence, the appellant absconded from his house and surrendered in court only after about month of the alleged occurrence.

It is well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such character that the same is wholly inconsistent with innocence of the accused and is consistent only with his guilt. The incriminating circum-stances for being used against the accused must bo such as to lead only to hypothesis of guilt and reasonably exclude every possibility of innooence of the accused. In case of circumstantial evidence the whole endeavour and effort of the court should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into complete

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chain unerringly pointing to the guilt of the accused. If the circwnstances proved against the accused iu case are consistent either with the innocence of the accused or with his guilt, he is e.ntitled to the benefit of doubt. Reference in this connection may be made to Constitution Bench judgment of this Court in the case of M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200, and recent decisions of this Court in the cases of Ronny Alias Ronald James Alwaris & Ors. v. State of Maharashtra, [1998] 3 SCC 625 and Joseph Sia Kooveli Paulo v. State of Kera/a, [2000] 5 SCC 197.

Keeping in mind the aforesaid position of law, the evidence, adduced to prove the circwnstances used against the appellant which weighed with the courts below, has to be considered, but before considering the same, we feel it would be expedient to refer to certain important aspects which would make the prosecution case, showing complicity of the appellant with the crime, highly doubtful.

Firstly, the informant - Ram Sunder Jha (PW.3) stated in his evidence in court unequivocally that he along with Indra Mohan Jha (PW. 7) went to the Pratap Ganj Police Station and narrated the occurrence before the Officer-in-charge of the Police Station and thereafter they returned with him to the village where in the house of the informant the Sub-Inspector of Police -Chitta Ranjan Shit (PW.IO), who was Officer-in-charge of the Police Station, recorded his fard-beyan at 11 O'clock. During the cross-examination, the witness stated that he arrived at the police station on that day at about 9 O'clock, stayed there for 10 to 20 minutes and thereafter retwned to the village. This witness has nowhere stated that he disclosed the name of the appellant before the Officer-in-charge at the police station, which was the first version of the occurrence unfolded by him. When the witness had gone to the police station, we do not find any reason as to why fard-beyan was not recorded there at 9 O'clock bnt recorded at the house of the informant after two hours at 11 O'clock which goes to show that there was inordinate delay in recording the fard-beyan. This further shows that by the time informant was at the police station he did not suspect complicity of the appellant with the crime and subsequently after due deliberations, fard-beyan was given by the informant at his house alleging therein that the appellant had complicity with the crime. Thus the evidence of this witness makes the prosecution caee showing complicity of the appellant with the crime doubtful.

Secondly, from the aforesaid statement of PW.3 it is clear that he went to the police station, narrated the occurrence to the Officer-in-charge (PW.10),

who thereafter left for the village, but it appears that the Investigating Officer (PW.10) has suppressed this fact as in his evidence he has come out with case that he received confidential information at the Police Station at 8.30 A.M. on the date of occurrence that someone had been murdered in the village of occurrence on the basis of which Sanaha entry No. 368 dated 27.7.1995 was entered at the Police Station and he proceeded to the village to verify the information and this shows that the prosecution case is suffering from the vice of suppressio veri on material point.Thirdly, according to the evidence of the informant (PW.3) he learnt for the first time between 6 A.M. to 6.30 A.M. on the date of occurrence at his house from Pala! Jha that the appellant had murdered his daughter, Rita Kumari, in the jute field by strangulation and her dead body was lying there. Manjula Devi (PW.9), wife of the informant, has stated that Palat Jha came to their house and informed that their daughter has been murdered after committing rape upon her and the dead body was lying in the jute field. PW.3 stated during the cross-examination that on the date of occurrence he returned from the police station along with PW.7 and Palat Jha which goes to show that Palat Jha also accompanied the informant to the police station. The First Information Report shows that fard-beyan was attested by two persons, namely, Indra Mohan Jha (PW.7) and Madhyanond Jha and PW.3 admitted that Madhyanand Jha is also known as Palat Jha. There is absolutely no evidence to show as to how Pala! Jha came to know that the deceased was raped and murdered by the appellant by strangulation and her dead body was lying in the jute field. If Palat Jha was an eye-witness to the occurrence, he was the most material witness for the prosecution. Palat Jha has not been examined. There is no material to show that he was interrogated by the police. The prosecution has failed to furnish any explanation whatsoever for non-exami-nation of Palat Jha, who was the most material witness to unfold the truth.

Thus the aforesaid circumstances go to show that the prosecution case showing complicity of the appellant with the crime intrinsically becomes unworthy of credence.

In the light of aforementioned facts, we now proceed 10 consider the circumstances enumerated by the two courts below against the appellant for convicting him.

The first circumstance used against the appellant has been proved by the informant (PW.3) who stated in the First Information Report and in his sub-

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sequent statement made before the police as well as in his evidence before the court that on the date of occurrence the appellant came to his house in the morning on the pretext of taking tobacco, met him and his daughter and enticed her to go to the orchard of Shobha Kant Mishra for plucking flowers. The aforesaid statement made by the informant has been supported by his wife, Manjula Devi, (PW.9), who was also present at the time the appellant visited their house in the morning. The statements of PWs. 3 and 9 have \leen corrobo-rated by Afil.ar Nath Thakur (PW.6) who stated that at the place of occurren~e when he arrived, PW.3 narrated him that in the morning the appellant came to his house and gave proposal to his daughter, Rita kumari, for going to the orchard for plucking flowers. Similar statement has been made by Indra Mohan Jha (PW.7). We do not find any ground to reject the evidence of these witnesses on this circumstance.

·So far as second circumstance that the appellant along with Rita Kumari left her house for the jute field is concerned, it may be stated that there is variance in the prosecution case disclosed in the First Information Report and the statement of witnesses. According to First Information Report, Rita Kumari first left her house and the appellant went behind her, but the informant (PW.3) in his statement in court stated that the appellant first left the house of the informant and went ahead whereafter Rita Kumari also left her house for the ·orchard. PW. 9, wife of the informant, in her statement stated that Rita Kumari left the house first, she went ahead and was followed by the appellant. PWs. 6 and 7 have stated that informant told them that Rita Kumari and the appellant left his house together for plucking flowers.From the aforesaid evidence, it becomes clear that according to the statement of PW.3 as disclosed by him before PW s. 6 and 7 the appellant and Rita Kumari left the house together whereas according to the First Informa-tion Report as well as the statement of PW.9, Rita Kumari went ahead and thereafter the appellant left for the orchard. None of the witnesses examined has stated that they had seen the appellant and Rita Kumari going together towards the orchard, rather PW.2 has stated that he had seen the appellant a'lone going towards the orchard. PW.6 stated that Shobha Kant, who has not been examined told him that he had seen Rita going alone towards the orchard for plucking flowers. The discrepancy in the evidence whether Rita Kumari went ahead and appellant left the house of the informant thereafter and whether they had not left the house of the informant together, on the facts and circum-stances of the case, is very material, especially in view of the fact that nobody had seen both of them going together towards the orchard and plucking flowers

there more so when Palat Jha, who, according to tl1e informant, was the tirst ' ' ' person who infonned him that his daughter had been done to death by the appellant by strnngulating her and the dead body was lying in the jute field, has not been examined. Thus, in view of the naturo of evidence, as stated above, it is not safe to use this circumstance against the appellant.

So far as the third circumstance that the appellant and the deceased Rita Kumari were seen going together towards the orchard is concerned, the prosecution has made an attempt in vain to prove the same by the evideqce of PWs. 2, 6 and 7. Out of these three witnesses, PWs. 6 and 7 do not claim that they had seen the appellant and Rita Kumari going towards the orchard, but stated that tl1ey learnt from Lachhman Sada (PW.2) at the place of occmrenee that he bad seen Rita Kumari and the appellant going together upto the Bamboo Clamp. The statement of these two witnesses on this point has been contradicted by PW.2 who stated that he had seen the appellant alone going upto tl1e Bamboo Clamp. In the light of the afon:said infirmities in tl1e evidence of the aforesaid witnesses, \Ve are of the view that the prosecution has failed to prove this circumstance.

The fourth circu1nstance that the appellant and Rita Ku1nari were seen in the field of Shobha Kant Mishra plucking flowers has been proved by PW.'/ alone who ·does not claim lo have himself seen them plucking the flowers, but stal.ed that one Mahenclra Mishra told him that he had seen Rita Kumari and tl1e appellant plucking flowers, but, for the reasons best known to the proseclllion, Mahendra Mishra, who alone conld have proved this circum-stance, has been withheld by the prosecution and no explanation is forthcom-ing for his non-examination. Therefore, we have no option but to hold that there is no reliable evidence in support of this circwnstant:e.

The fifth circumstance which has been used against the appellant is that be was seen fleeing away in the vicinity of the jme field immediately after the alleged occmTence which the prosecution has attempted to prove by the evidence of PWs. 2, 6 and 7. Out of these three '"itne'8es, PW.2 stated that immediately after the alleged occmrence he had seen tlic appellant fleeing away in suspicious circumstances in the vicinity of the jute field. He also \ stated that he told this fact to the villagers. PW s. 6 and 7 have supported him by saying that he stated this fact before tl1em. Therefore, the question rests upon veracity of the evidence of PW.2. suggestion was given to tl1is witness that he was inimical to the accused which he had denied. It is not safe to place reliance on tl1e evidence of this witness on this question, especially in view

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of the fact that Palat Jha has been withheld from the witness box and the prosecution has failed to prove that the appellant and Rita Kumari were seen going towards the orchard inasmuch as it might be possible that by the time the appellant arrived the orchard, the crime had been committed by somebody else and seeing the dead body lying there, out of fear, the appellant might have been seen fleeing by PW.2.

The last circumstance which has been used against the appellant is that after the alleged occurrence he absconded from his house and surrendered in court only after about month from the date of alleged occurrence. The only evidence on this circumstance is of the Investigating Officer (J.'W.10) who has stated that during the course of investigation he received secret information to the effect that the appellant was seen fleeing away wearing only undergar-ments and in order to verify the same, he left the police station along with the armed forces in search of the accused, went to the house of one Mithlesh lha (husband of appellant's sister) at Village Murli where he was informed that Chandra Mohan Mishra, father of the appellant, had gone there in search of him and he having not found him there, went to the place of other relatives for searching him. This witness has nowhere stated from whom he received the secret informalion inasmuch as such information cannot be made basis to prove this circumstance for being used against the appellant. The other portion of the evidence of this witness that he learnt at the place of appellant's brother-in-law, Mithlesh Jha, that his father, Chandra Mohan Mishra had come to the house of Mithlesh Jha and gone to the places of other relatives in search of the appellant could have been proved by examining Mithlesh Jha and .Chandra Mohan Mishra who could have been the best per<ons to prove this fact, but, for the reasons best known to the prosecution, they have been withheld. It may be stated that the Investigating Officer has nowhere stated that he ever visited the house of th$! appellant oor any other witness stated that the appellant was not present -in his house after tloe occurrence. Thus, we find there is no credible material to prove this circumstance. In any view of the matter, this circumstance cannot be used against the appellant as from his statement recorded under Section 313 of the Code of Criminal Procedure, it would be amply clear that this circumstance was never put to him and consequently the same cannot be used. Reference in this connection may be I made to decision of this Court in die case of Kehar Singh & Ors. v. State (Del/>i AdministraJion), [1988] 3 SCC 609.

In view of the foregoing discussions: we have no option but to hold that · the only circumstance which the prosecution has proved against the appellant

is circumstance No. 1, i.e., that on the date of occurrence U1e appellant came to the house of the infonpant in the rooming and gave proposal to his daughter, Rita Kurnari, for going to the orchard of Shobha Kant Mishra for plucking flowers which cannot be said to be inconsistent with innocence of the appellant, especially in view of the fact that Ute fard-beyan was not recorded at the police station when the infomtant had gone there, but at his house after two hours from the time the info1mant visited the police station, the Investigating Ollicer suppressed the fact Utat the in.fo1mant went to the police station and na1Tated the incident to him at the police station, rather the Investigating Ollicer (PW.IO) stated that he received confidential information that some murder had taken place in the village of occurrence and further the non-examination of Pala! nia, who was the most material witness to unfold the truth.

We are unhappy to note that such ghastly crime of first connnitting rape upon teenager and thereafter brutally murdering her is going unpun-ished because of laches on the pa11 of the prosecuting agency in conducting the investigation and trial, and have no option but to painfully convert conviction of the appellant who was condemned prisoner into acquittal as the solitary circumstance proved against him can not fotm the basis of conviction.

Accordingly, the appeal is allowed and the conviction and sentence awarded against the appellant are set aside.

Appeal allowed.