Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1315-1316 OF 2023
(Arising out of SLP (Criminal) Nos.8047-8048 of 2019)
STATE OF MADHYA PRADESH … Appellant
VERSUS
PHOOLCHAND RATHORE … Respondent
J U D G M E N T
MANOJ MISRA, J.
1. Leave granted.
2. These appeals are by the State of Madhya
Pradesh against the judgement and order of the High
Court of Madhya Pradesh at Jabalpur (for short “the
High Court”) dated 11.12.2015 in Criminal Appeal
No.1292 of 2015 connected with Criminal Reference
No.2 of 2015 whereby, the order of conviction and
sentence including death penalty awarded to the
Signature Not Verified
respondent by the Court of District and Sessions
Digitally signed by
RASHMI DHYANI
Date: 2023.04.28
16:50:17 IST
Reason:
Judge, Anuppur in Sessions Trial No.72 of 2010,
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under sections 302 and 201 of the Indian Penal
Code, 1860 (for short “IPC”) has been set aside and
the respondent has been acquitted.
3. To have a clear understanding of the issues
raised in these appeals a brief description of the
prosecution case and the evidence led by the
prosecution would be apposite.
Introductory Facts
4. The prosecution story narrated in the first
information report (FIR), lodged by deceased’s brother
Kamla (PW2), is that the accused-respondent was
unhappy that his wife Sundariya (the deceased) had
kept her jewellery with her sister Jaimatiya Bai (PW-
8); on the fateful day i.e. 01.02.2010, at around 1400
hours, the accused came to the house of PW2, while
PW8 was there, fought with PW8 and told her that he
would kill Sundariya and set the house on fire; when
PW2 returned from his shop at around 1900 hours,
on getting the above information, he telephoned
Madhuri (PW4), daughter of Sundariya, who informed
PW2 that her father had taken her mother on a
bicycle towards the field while making utterances
that he would kill her. On receipt of information from
PW4, PW2 came to the village where Sundariya
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resided and went to search her out with the help of
Manoj (not examined) and PW2’s brother-in-law
Mathura (PW3). During the course of search, they
found the deceased lying seriously injured between
the railway tracks. They, therefore, rushed her to
Jaithari Hospital but, on way, she succumbed to her
injuries. The FIR was promptly lodged at P.S. Jaithari
on 01.02.2010 at 2130 hours expressing suspicion
against the respondent (i.e. the accused) of having
killed his wife.
5. As per arrest memo (Ex. P-11), the accused
was arrested on 02.02.2010, at about 1240 hours,
from Seoni Tri-section. Vide Ex. P-9, on the same day
i.e. 02.02.2010, at 1300 hours, a disclosure
statement of the accused was recorded wherein, he
assured recovery of stones ( gitti ) and blood-stained
pant and shirt kept in his hut. Pursuant thereto, vide
seizure memo (Ex. P-10), on 02.02.2010, at 1400
hours, a moss coloured full shirt and dark brown full
pant with blood stains on them, three blood-stained
stones with hair stuck on it and one old hero jet cycle
were recovered from that hut.
6. Interestingly, on the same day, at the same
time i.e. 1400 hours, vide Ex. P-12, another seizure
was made from near the railway line of 5 blood-
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stained gravel ( gitti - stone), 5 plain gravel ( gitti -
stone), blood stained red coloured saree and
chappals .
7. On completion of the investigation, a charge-
sheet was laid against the appellant and, after taking
cognizance thereon, the case was committed to the
Court of Session. The Sessions Court charged the
appellant for committing murder of his wife on
01.02.2010 at 2000 hours, punishable under section
302 IPC, and of concealing blood-stained
stones/shirt/pant and cycle used in the offence with
a view to remove evidence thereof, punishable under
Section 201 IPC. The accused pleaded not guilty and
claimed trial.
Prosecution Evidence
8. As there existed no eyewitness account of the
murder, the prosecution rested its case on
circumstances, inter alia , (a) the accused bore a
grudge against his wife for keeping jewellery with her
sister (PW8); (b) on the fateful day, during day time,
accused on that count, quarrelled with PW8 and
threatened to kill the deceased and set the house on
fire; (c) in the evening of that fateful day, the accused
quarrelled with the deceased and took her with him
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on a bicycle, while extending threats that he would
kill her; (d) later, that evening, the deceased was
found in a seriously injured condition; (e) the
deceased died on account of those injuries; and (f)
blood-stained clothes etc. were recovered at the
instance of the accused thereby making the chain
complete. To prove these circumstances, the
prosecution examined 12 witnesses. Gist of their
testimony is noticed below:
(i) PW-1 - Ganga Bai
She is the aunt of the accused. She did
not support the prosecution case and was
accordingly declared hostile. Nothing much
turns on her testimony.
(ii) PW-2 – Kamla Singh Rathore (the
informant)
He deposed about — receipt of
information, at 1900 hours, of the quarrel
that took place on the fateful day during day
time; search operation; discovering the
deceased, at around 2000 hours, in an
injured condition near railway track; rushing
her to the hospital; the deceased succumbing
to her injuries on way to the hospital; and
lodging of the FIR. During cross-
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examination, PW2 admitted that no
quarrel/fight took place in his presence. On
being questioned as to how PW2
communicated with PW4 on that fateful day,
PW2 stated that PW4 had used mobile of
some third person but could not disclose his
name or number.
(iii)
PW-3 – Mathura Prasad Rathore
He corroborated PW2’s statement that
the deceased was found lying near the
railway tracks and from there she was
rushed to Hospital though she succumbed to
her injuries on way.
(iv) PW-4 – Madhuri Singh Rathore (Daughter
of the deceased)
She is the star witness. She deposed
about — fights between her father (the
accused) and mother (the deceased); her
returning from maternal uncle’s home at
1630 hours and noticing her father and
mother fighting/quarrelling and, later, her
father forcibly taking her mother on his cycle
to the fields. PW4 also stated that she
followed them up to the village pond but, on
being scolded, she came back and that near
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the pond, she met Sushila (PW-12), her
paternal aunt, to whom she narrated the
incident. Whereafter, on coming back, she
made a phone call to her maternal uncle
(PW2). Then her maternal uncle called back
to know the whereabouts of her mother.
When she told him that her father had taken
her mother and had asked her to remain in
the house, her maternal uncle came to the
village in search of her mother. PW4, during
her deposition, added that in between her
father had returned alone and had told her
that he had killed her mother.
During cross-examination, PW4
admitted that the ornaments that were kept
by her mother with her aunt (i.e. mother’s
sister) were returned by her aunt eight days
before the incident. She also admitted that
on the fateful day she gave her examination
from 1100 hours till 1500 hours and that, at
present, she is living with her maternal
uncle. PW4 was also confronted with her
previous statement wherein there was an
omission regarding confession made by her
father.
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(v) PW-5 – Dr. Sunil Khanna (Autopsy
Surgeon)
He proved the autopsy report (Ex.P-8)
wherein he recited eight lacerated wounds,
ante mortem in nature, caused by hard and
blunt object within 24 hours of examination
conducted on 02.02.2010 at 1100 hours
According to his opinion, deceased died
within 24 hours of the examination, on
account of head injuries leading to
haemorrhage, resultant shock and cardio
respiratory failure.
During cross examination, he stated that
if train is moving and any person, walking on
foot, gets dashed by the train then such
injuries may occur.
This witness was re-examined and
questioned by Court. At that stage, the
witness stated that if injuries were sustained
during a train accident then it might reflect
fracture on face. He accepted the possibility
of injuries being caused as a result of assault
with Gitti (Gravel - small stones).
(vi) PW-6 – Shivkumar Rathore
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He is a witness to the disclosure
statement and seizure of blood-stained
clothes etc. He, however, did not support the
prosecution case and was therefore declared
hostile. During cross-examination he
admitted his signature on the
memorandum(s) but claimed that his
signatures were obtained by the police at the
police station without informing him about
the contents of the documents.
(vii) PW-7 – Kiran @ Rambai
She is another daughter of the deceased.
She stated that at the time of the incident,
she was in the house of her maternal uncle
namely, Kamla Rathore, at Jaithari. During
cross examination, she stated that disputes
between her father and mother used to take
place but they use to get resolved.
(viii) PW-8 – Jaimatiya Bai Rathore
She is sister of the deceased Sundariya.
She deposed that the dispute between the
deceased and her husband was on account
of ancestral properties coming from
deceased’s mother side. She stated that she
does not have any other information about
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the incident. At this stage, the witness was
declared hostile and was allowed to be cross-
examined by the prosecution.
During cross-examination, at the
instance of prosecution, she stated that there
was theft at Sundariya’s place therefore, for
security reasons, Sundariya had kept her
gold and silver at her house which, a week
before the incident, were sent by her to the
house of Sundariya. She also stated that the
accused had come to her house and had
threatened to kill Sundariya and set the
house on fire.
During cross-examination at the
instance of the accused, upon a suggestion
that a family dispute was going on, PW8
stated the accused was pressurising the
deceased to take a share in her ancestral
property from her brother and since she was
not agreeing to it, the accused had a dispute
with her.
(ix) PW-9 – Rajiv Singh
He was the Halqa Patwari (Revenue
Circle Inspector/Lekhpal) who inspected the
crime scene under orders of the Tehsildar
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and prepared the spot panchnama (Ex. P-13)
as also site plan (Ex. P-14) of the place from
where the deceased was taken in an injured
condition to the hospital.
(x) PW-10 – Ashok Kumar Rathore
He is son of PW2 who brought his vehicle
to take the deceased along with PW2 to the
hospital. He corroborated the evidence that
the deceased succumbed to her injuries on
way to the hospital.
(xi) PW-11 – Satish Dwivedi - Investigating
Officer
He proved the various stages of
investigation including registration of the FIR
on 01.02.2010 at 2130 hours. Interestingly,
as per his deposition, he visited the site on
02.02.2010 and vide seizure memo (Ex.P-12)
lifted blood-stained gravel, plain gravel,
blood-stained saree and two slippers from
the spot. He deposed about — arresting the
accused vide memo Ex.P-11; recording his
disclosure vide Ex.P-9; and effecting recovery
vide memo (Ex.P-10). He stated that sealed
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articles were sent for forensic examination.
He also produced the recovered articles as
material exhibits.
During cross-examination, though PW11
admitted knowing PW2 (informant) from
before but denied the suggestion that he
conspired with PW2 to falsely implicate the
accused. In paragraph 25 he stated that
saree was not found on the body of the
deceased. He also admitted that a new
railway track was being laid there and in that
connection machines were there. However, he
denied the suggestion that in connection
with laying new track hundreds of workers
(labourers) were there. In paragraph 32 he
denied the suggestion that the accused had
reached the police station on 01.02.2010
itself. He also denied the suggestion that the
alleged arrest, disclosure and recovery at the
instance of the accused are bogus.
In respect of the distance between Seoni
Trisection and Seoni village, PW11 denied
the suggestion that the distance between the
two is of 6 km. Rather, claimed it to be 600
meters. He also admitted that the witnesses
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of the memorandum were not residents of
Seoni Trisection.
(xii)
PW-12 – Sushila (Sister-in-Law of the
Deceased)
PW-12 disclosed no knowledge about the
prosecution case and was therefore declared
hostile.
Forensic Reports
9. In addition to the oral testimony of the
witnesses, forensic reports confirmed presence of
human blood on saree, shawl, petticoat, blouse, shirt
and stone. Likewise, blood was found on the gravel
recovered from the place of occurrence though its
origin could not be determined as it had
disintegrated. Similarly, the classification of the blood
could not be made as it had disintegrated.
Statement under section 313 Cr.P.C.
10. The incriminating circumstances appearing in
the prosecution evidence were put to the accused
while recording his statement under section 313 of
the Code of Criminal Procedure, 1973 (for short
“Cr.P.C.”) The accused denied the incriminating
circumstances and claimed that he has been falsely
implicated.
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Findings of the Trial Court
11. The Trial Court found the following
incriminating circumstances proved — (a) the
deceased was assaulted, abused and forcibly taken
by the accused on a bicycle and she did not return
thereafter rather, two hours later, was found in badly
injured condition; (b) the accused made extra judicial
confession of his guilt to his daughter (PW4); (c)
human blood was found on the clothes recovered;
and (d) except bald denial no explanation was offered
by the accused. According to the trial court, the said
circumstances constituted a chain so far complete
that it established beyond doubt that it was the
accused and no one else who committed the crime.
To conclude as above, the Trial Court placed reliance
on the testimony of PW-4. Upon finding the accused
guilty, the trial court convicted the accused and
awarded death penalty to him under section 302 IPC
and 7 years RI under section 201 IPC. For
confirmation of death penalty, a reference was made
to the High Court under section 366 Cr.P.C., which
was registered as Reference No.2 of 2015. In the
meantime, the accused filed criminal appeal against
the order of conviction and sentence, which gave rise
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to Criminal Appeal No.1292 of 2015 before the High
Court. The appeal and the reference were connected
and decided together by the High Court vide
impugned judgment and order dated 11.12.2015.
High Court Findings
12. The High Court set aside the judgment and
order of the trial court and acquitted the appellant.
While doing so, it discussed the testimony of
prosecution’s star witness i.e. PW 4 in paragraphs 29
and 30 and did not find the prosecution evidence
reliable and trustworthy for the reasons recorded by
it in paragraphs 31, 32, 33, 34 and 35 of its
judgment, which are extracted below:-
“31. This statement of Madhuri (PW-4) the
main witness to the case becomes doubtful in view
of the several omissions and contradictions
contained therein. The first is the fact that she
states that her father took her mother forcibly on
the cycle and while doing so he was seen by Ganga
Bai (PW-1) and Sushila (PW-12) but both these
witnesses have clearly denied this fact or any
knowledge about the incident and have been
declared hostile. Secondly, this witness Madhuri
(PW-4) in her statement, on the one hand, states
that her father came back after committing the
crime in bloodstained clothes, changed them in the
night of 1.2.2010, hid them in the cattle shed and
thereafter washed the clothes in the morning of the
next day and spread them to dry on the roof
whereas in the same paragraph she has stated that
her father the accused appellant was arrested in the
night of the incident i.e. 1.2.2010 from the ‘nala’
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with an axe in his hand. Thirdly, it is also apparent
that she states that her father hid the clothes in the
house itself and subsequently he washed and dried
them in the house itself whereas the bloodstained
clothes of the accused appellant are said to have
been seized from the hut situated in the field vide
seizure memo Exhibit P-9 and seizure panchnama
Exhibit P-10. The statement of Madhuri (PW-4) is in
direct conflict with and in contradiction of the
prosecution story which in turn makes it clear that
one of them is false thereby casting a deep shadow
of doubt on the case against the appellant.
32. From a perusal of the aforesaid facts and
circumstances it is also clear that:
(1) the statement made by Madhuri (PW-4) is
unreliable and is full of embellishments,
exaggerations as well as contradictions and
omissions on account of the fact that her
statement regarding fighting between the
appellant on account of jewellery is apparently
false in view of the clear and specific statement
of Jaimataiya Bai (PW-8) who has emphatically
stated that she had returned the jewellery eight
days before the incident;
(2) her statement regarding constant fighting
between her parents on account of the jewellery
is not corroborated and supported by her elder
sister Kiran @ Rambai (PW-7) who has in fact
stated that the fight between her parents was
usual and normal fight between husband and
wife;
(3) that she has stated that her father, after
committing the crime, returned back with
bloodstained clothes, hid them in the cattle
shed, changed his clothes and went away and
thereafter washed his clothes in the morning of
the next day after the incident i.e. on 2.2.2010
whereas in the same breath she has also
asserted that her father was arrested on the
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same night of the incident itself i.e. on 1.2.2010
by the police with an axe in his hand whereas
there is no mention in her statement to the effect
that her father had gone to the field with an axe
in his hand or that he had taken the axe after
the incident from the cattle shed.
(4) There is also material contradiction in her
statement to the effect that she had gone to her
maternal uncle’s house to give her examination
whereas in her own statement she has stated
that her mother told her to go to her maternal
uncle’s house.
(5) Her statement is also quite unnatural
inasmuch as she has stated the fact that she
rang her maternal uncle Kamal (PW-2) informing
him about the incident but did not inform her
paternal uncle or any of her neighbours or
persons residing nearby.
33. It is also pertinent to note that a bare perusal of
the case diary statement of Madhuri, Exhibit P-38,
and the statement made by her in Court clearly
indicates that there is omission and contradiction in
regard to the alleged extra-judicial confession made
by the accused to Madhuri (PW-4) as she has not
stated anything about any such extra-judicial
confession in her case diary statement. In fact, this
contradiction and omission, deficiency and
weakness in the statement of Madhuri (PW-4) has
also been taken note of by the court below in paras
33 and 44 of its judgment but the court below has
chosen to ignore the same on the ground that there
is a mistake committed by the prosecutor in
recording of her statement and the interest of justice
demands that the omissions and contradictions be
ignored.
34. The fact that her father had taken her mother
forcibly to the field and had told her that he would
murder her mother but she did not inform this fact
to either her paternal uncle who is her neighbour or
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any other neighbour residing nearby or any other
person residing in the locality or her acquaintance
except her maternal uncle who was residing 2 kms
away also casts a shadow of doubt upon her
statement as this conduct is unnatural. The
aforesaid omissions, contradictions and
embellishments in the statement of Madhuri (PW-4)
when read with the uncorroborated and
unsupported unnatural statements made by her to
the effect that her father told her on three occasions
that he would murder her mother and after
committing the crime again came back and
confessed to the commissions of the crime which
confession was not disclosed by her in her case
diary statement makes it clear that her statement
cannot be said to be of unimpeachable and sterling
quality and cannot be relied upon as it does not
satisfy the tests laid down by the Supreme Court in
the above referred judgments.
35. In view of the aforesaid detailed analysis of the
evidence of Madhuri (PW-4) we arrive at a
conclusion that her statement is full of
embellishments, exaggerations and material
discrepancies and, therefore, we find ourselves
unable to pick out the grain of truth from the
falsehood of her statement.”
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13. In addition to above, the High Court noticed
that neither younger sister of Madhuri (PW4) nor
neighbours or members of the locality were produced
as witnesses to lend assurance to the prosecution
story. Further, the original motive for the crime was a
dispute arising from keeping of jewellery by the
deceased with her sister, whereas the statement of
prosecution witnesses established that the jewellery
had been returned much before the incident,
therefore, there existed no cogent motive for the
crime. In paragraph 40 of the judgment, the High
Court observed that the recovery of blood-stained
clothes and stones was doubtful because the seizure
witness Shiv Kumar Rathore (PW6) had categorically
denied seizure of those articles in his presence and
had stated that his signatures were obtained at the
police station. Moreover, the evidence recorded
revealed that the accused was arrested in the night of
01.02.2010 itself. The High Court also noticed that
the FSL report Ex.P-35 could not confirm the blood
group on the clothes as to match it with the
deceased. Otherwise also, once the seizure of articles
became doubtful and as per the statement of PW4
the accused had washed off those clothes and had
kept them in the house to dry, the entire prosecution
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story in respect of seizure of blood-stained clothes
from the hut was rendered doubtful. Taking a
conspectus of the circumstances highlighted above,
the High Court opined that the case set up by the
prosecution appeared extremely unnatural and hard
to believe. The High Court therefore discarded the
circumstance of seizure of stones and blood-stained
clothes from the hut of the accused and upon finding
that there were glaring contradictions in the
prosecution case, irreconcilable in nature, gave the
benefit of doubt to the accused.
14. We have heard learned counsel for the parties
and have perused the record.
Submissions on behalf of the Appellant
15. The learned counsel for the appellant
submitted that this is a case where a daughter has
deposed against her own father. The testimony of PW-
4 is straightforward and coupled with other
evidences establishes beyond doubt the following:
(i) that there used to be fights/quarrels
between the deceased and the accused;
(ii) that on the fateful day, there was a
quarrel between the two; and
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(iii) that soon after the quarrel the deceased
was taken on a bicycle by the appellant
to the field and shortly thereafter near
the hut/field of the accused, on a railway
track, the deceased was found in a
seriously injured state suggesting that
she was badly assaulted.
16. It was argued that the High Court wrongly
discarded the entire statement of PW4 upon noticing
that she was not truthful on certain aspects, namely,
— the accused had returned alone from the field
wearing blood-stained clothes, changed his clothes in
the house, washed them and made an extra judicial
confession to PW4. It was contended that falsus in
uno, falsus in omnibus doctrine is not applicable in
India therefore, the High Court ought to have severed
the unreliable part from the remaining part, noticed
above, and examine whether the remaining part on
its own could sustain conviction, particularly, when
there was no explanation forthcoming from the
accused as to where he was during that period and
how his wife sustained those injuries. It was argued
that the evidence that the accused took the deceased
on cycle to the field and shortly thereafter, near the
field, in between railway tracks, the deceased was
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found with multiple injuries, by itself, in absence of
any explanation from the accused as to when he
parted company of the deceased, was sufficient to
record conviction.
17. In addition to the above, the learned counsel
for the appellant submitted that it is a case where the
deceased had died at around 2000 hours on
01.02.2010, the FIR was promptly lodged at 2130
hours narrating the circumstances in which the
incident occurred and those circumstances have been
confirmed by the testimony of prosecution witnesses
therefore, even if subsequent story of
confession/recovery is discarded, the proven
circumstances by itself form a chain so complete as
to sustain conviction of the accused as justifiably
recorded by the trial court. Consequently, it was
prayed, the judgment and order of the High Court be
set aside and the Trial Court’s judgment and order be
restored.
Submissions on behalf of the respondent -accused
18. Per contra, the learned counsel for the
respondent submitted that the view taken by the
High Court is a plausible view and is not perverse as
to warrant an interference under Article 136 of the
Constitution of India. It was urged that the High
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Court is a final court of fact and the view of the High
Court is not in ignorance of any evidence or by
misreading any piece of evidence. Its view being a
plausible view, based on analysis of the evidence, no
interference with it is called for, particularly when the
case rests on circumstantial evidence.
19. It was also urged that the testimony of PW4,
when read as a whole, does not inspire confidence as
it is found unreliable on several aspects therefore,
being the sole witness of the circumstance that the
deceased was taken from home by the accused, could
not on its own form the basis of conviction. More so,
when the original motive stood not proved giving rise
to possibility of false implication on account of
property dispute with informant (PW2) as would be
clear from the statement of PW8, which possibility
gains support from the statement of the Investigating
Officer (PW11) that he had known the informant
(PW2) from before. More so, when a false
arrest/disclosure and recovery was set up. It was
also argued that the public witnesses examined by
the prosecution have disclosed about the arrest of
the accused in the night itself whereas, the police
witnesses have tried to disclose his arrest on the next
day leaving them opportunity to plan a case against
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him. For all the reasons above, it was prayed, the
view taken by the High Court is a plausible view, not
liable to be interfered.
Discussion and Analysis
20. Having considered the submissions and
perused the record, before we proceed further, it
would be useful for us to notice the law as to when it
would be appropriate for this Court, exercising its
power under Article 136 of the Constitution of India,
to reverse an acquittal into a conviction. Normally,
the Court is reluctant to interfere with an order of
acquittal. But when it appears that the High Court
has on an absolutely wrong process of reasoning and
a legally erroneous and perverse approach to the
facts of the case and ignoring some of the most vital
facts, acquitted the respondent and the order of
acquittal passed by the High Court has resulted in a
grave and substantial miscarriage of justice,
extraordinary jurisdiction under Article 136 of the
Constitution of India may rightfully be exercised ( See :
1
v. ).
State of U.P. Sahai & Others
21. In State of M.P. & Others v. Paltan Mallah
2
& Others , reiterating the same view it was
observed:
1 (1982) 1 SCC 352
2 (2005) 3 SCC 169
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“8. … This being an appeal against acquittal, this
Court would be slow in interfering with the
findings of the High Court, unless there is
perverse appreciation of the evidence which
resulted in serious miscarriage of justice and if
the High Court has taken a plausible view this
Court would not be justified in interfering with
the acquittal passed in favour of the accused and
if two views are possible and the High Court had
chosen one view which is just and reasonable,
then also this Court would be reluctant to
interfere with the judgment of the High Court.”
22. In a recent decision rendered by this Court in
3
Basheera Begam v. Mohd. Ibrahim & Others , it
was observed:
“190. … Reversal of a judgment and order of
conviction and acquittal of the accused should
not ordinarily be interfered with unless such
reversal/acquittal is vitiated by perversity. In
other words, the court might reverse an order of
acquittal if the court finds that no person
properly instructed in law could have upon
analysis of the evidence on record found the
accused to be “not guilty”. …”
23. Seen in light of the decisions above, we would
examine whether there is any perversity in the view
taken by the High Court while converting conviction
into an acquittal. Admittedly, this is a case based on
circumstantial evidence. There is no direct eye
witness account of the murder. The body of the
deceased was not found within the confines of her
house but in the open on a railway track. In such
3 (2020) 11 SCC 174
Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 25 of 36
circumstances to sustain a conviction the court
would have to consider — (i) whether the
circumstances relied by the prosecution have been
proved beyond reasonable doubt; (ii) whether those
circumstances are of a definite tendency unerringly
pointing towards the guilt of the accused; (iii)
whether those circumstances taken cumulatively
form a chain so far complete that there is no escape
from the conclusion that within all human
probability the crime was committed by the accused;
(iv) whether they are consistent only with the
hypothesis of the accused being guilty; and (v)
whether they exclude every possible hypothesis
except the one to be proved.
24. We shall now examine as to what were the
circumstances relied by the prosecution and as to
how they were sought to be proved. Additionally, we
shall examine as to how the High Court dealt with
the evidence on those circumstances with a view to
find out whether there is any perversity in its view/
reasoning warranting an interference. In the instant
case, the prosecution relied on the following
circumstances: (a) Motive; (b) Disclosure Statement
and Recovery; (c) Extra Judicial Confession; and (d)
Accused taking the deceased with him and soon
Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 26 of 36
thereafter the deceased was found in an injured
state. We shall examine each of these circumstances,
separately, herein below—
(i) Motive:
According to the prosecution, the
appellant and the deceased used to quarrel
because the deceased had kept her jewellery
with her sister. However, the above reason for
the quarrel was not found proved because
the prosecution evidence led revealed that
the jewellery had already been returned back
much before the date of the incident.
Therefore, to prove motive, during trial,
prosecution developed another story, which
is, that the appellant desired his wife to claim
a share in her ancestral property which
resulted in quarrels. This motive neither
appealed to the High Court nor to us
because, firstly, it was an improvement in the
prosecution story; secondly, not much
evidence was laid to substantiate the same;
and, thirdly, if the wife is killed how could
her husband derive interest in the property.
Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 27 of 36
Thus, in our view, the prosecution failed to
prove the motive set out by it. No doubt
absence of motive by itself may not be
sufficient to dislodge the prosecution case if
the other proven circumstances could form a
chain so complete as to indicate that in all
human probability it is the accused and no
one else who committed the crime but, in a
case based on circumstantial evidence,
motive plays an important part. Because, not
only it makes the story believable but also
helps the court in fortifying an inference
which may be drawn against the accused
from other attending circumstances.
(ii) Disclosure Statement and Recovery
The prosecution placed heavy reliance on
recovery of blood-stained clothes and stones
from the hut of the accused on the basis of
disclosure made by him. The disclosure as
well as recovery has been refuted by the
accused as also by PW-6 who is a witness to
it. The High Court has noticed that there is
material contradiction in the statement of
prosecution witnesses with regard to the
Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 28 of 36
time when the accused was arrested. The
public witnesses examined by the
prosecution indicated that the accused was
arrested in the night of 01.02.2010 itself,
whereas the police witnesses/documents
disclosed his arrest on 02.02.2010 at 1240
hours at Seoni Trisection. What may be
interesting is the time sequence of arrest,
recording of disclosure statement and
preparing of recovery memos.
According to police witnesses and papers,
the arrest was effected on 02.02.2010 at
1240 hours; the disclosure statement was
recorded on 02.02.2010 at 1300 hours and
recovery was effected on 02.02.2010 at 1400
hours. The arrest of the accused was shown
from a place known as Seoni Trisection
whereas the public witnesses including PW4
stated that the accused was arrested in the
night of 01.02.2010 from a Nala (drain)
where he was hiding with an axe. The
disclosure statement, as per the
memorandum (Ex.P-9), was prepared at
Seoni Trisection and witnessed by PW6; the
recovery memo (Ex.P-10), as per
Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 29 of 36
memorandum, was prepared at Phoolchand’s
(accused’s) hut near railway line in Model
village at 1400 hours and the same too, was
witnessed by PW6. Interestingly, PW6 is the
only public witness of disclosure and
recovery to be examined and he has not
supported the prosecution case. What is
even more interesting is that the other
seizure memorandum prepared in respect of
lifting blood-stained saree, gravel, slippers
etc. from near the railway line, that is the
spot from where the deceased was lifted, was
prepared at 1400 hours on 02.02.2010. How
could it be possible that the police prepared
two memorandums at the same time at
different places. The answer to it lies in the
testimony of PW6, a witness to both, who
stated that he was made to sign the papers
at the police station. Meaning thereby that all
papers were prepared at one go rendering the
entire exercise of disclosure and
consequential discovery/recovery doubtful.
Not only that, there appears no cogent
reason for the accused to carry stones from
the spot and hide them in his hut while
Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 30 of 36
leaving several blood-stained stones near the
railway line. In such circumstances, it
appears to us that those stones were picked
from the spot near the railway track to show
recovery from the hut. Insofar as the
recovery of blood-stained clothes is
concerned, in addition to the above reasons,
the same is doubtful also because of the
statement of PW4 (Madhuri) that her father
on return had washed those clothes and had
spread them to dry over the cattle shed in
the house therefore, how could they be
recovered from the hut. It be noted that the
house is shown located in the village,
whereas the hut is shown in the field at quite
a distance from the house. For all the
reasons above, the High Court was justified
in doubting the recovery of blood-stained
clothes etc. at the instance of the accused
from the hut and on the basis of a disclosure
statement made by him.
(iii) Extra Judicial Confession to PW4
The alleged extra judicial confession
made by the accused to PW4 was neither
Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 31 of 36
disclosed in the FIR nor in the previous
statement of PW4 made during investigation.
PW4 was confronted with that omission
during her deposition in court. That apart,
the testimony of PW4 with regard to the
accused returning home, making extra
judicial confession, changing clothes,
washing blood-stained clothes and spreading
them to dry has been found unreliable and
shaky by the High Court for cogent reasons
extracted above, which do not appear
perverse as to warrant an interference. Thus,
the circumstance of extra judicial confession
is also not proved beyond doubt.
(iv) Accused taking the deceased from
home on a bicycle
In respect of this circumstance, the only
evidence is of PW4 i.e. the daughter of the
accused and the deceased. Her evidence has
been doubted by the High Court, inter alia,
on the ground that the two witnesses Ganga
Bai (PW1) and Sushila (PW12) have not
supported her statement. PW4 stated that
when she followed her parents who were
Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 32 of 36
going on a bicycle she met Sushila (PW12)
and she narrated the incident to her. PW12,
who appeared as a witness, denied having
met PW4 on that fateful day. Similarly, Ganga
Bai (PW1) who were to corroborate PW4 on
that aspect was declared hostile. Even, if we
assume that the testimony of those two
witnesses would not damage the testimony of
PW4 as they may have their own reasons for
not supporting the prosecution case yet,
when we peruse the detailed reasons
recorded by the High Court in its judgment
(i.e. paragraphs 31 to 35 thereof) to hold that
the testimony of PW4 is not of a stellar
quality as to merit conviction solely on its
basis, we find no such perversity in the High
Court’s conclusion as may warrant a reversal
of acquittal into a conviction in exercise of
jurisdiction under Article 136 of the
Constitution.
The argument that doctrine falsus in uno,
falsus in omnibus is not applicable in India
hence PW4’s testimony, even if not acceptable
on certain aspects, could be relied to prove
Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 33 of 36
other circumstances, is not acceptable
because the High Court, on basis of analysis
of the entire evidence, has discarded the
witness as not reliable while observing:
“that her statement is full of
embellishments, exaggerations and material
discrepancies and, therefore, we find
ourselves unable to pick out the grain of
truth from the falsehood of her statement.’’
Further, even if we accept PW4’s
testimony that the accused, on that fateful
day, took the deceased on a bicycle to the
fields that by itself is not conclusive to
indicate that he took her to kill her; because,
admittedly, the accused held agricultural
holding and it is quite possible that he may
have taken his wife to assist him in the
agricultural operations. It is common
practice in villages for ladies to help their
menfolk in agricultural operations. The
allegation that while taking her a declaration
was made that she would be killed does not
inspire our confidence for the reason that the
motive set out by the prosecution for such a
quarrel has not been proved. Otherwise also,
quarrels and disputes between husband and
Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 34 of 36
wife are every day phenomena and not such
an event which may create a strong suspicion
of an impending crime much less murder.
More so, where, as in the present case,
marriage is subsisting since long with
children out of the wedlock. Further, this
circumstance by itself is not so clinching as
to conclusively point towards the guilt of the
appellant by ruling out possibility of a third-
party hand in the murder. In this regard, it
be noticed that, as per the prosecution case,
the deceased was found injured at around
2000 hours in an open area at some distance
from the hut of the accused. At what time
the accused had taken the deceased on his
bicycle is not clear from the testimony of PW4
though, from the first part of her testimony,
it appears that the accused and the deceased
were noticed quarrelling with each other at
about 1630 hours and soon thereafter, the
appellant took the deceased on his cycle. If,
from that, we put the event of taking the
deceased on bicycle at about 1630 hours
there is still quite a large time-gap between
1630 hours and 2000 hours for other
Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 35 of 36
intervening factors to operate. In light
thereof, considering that the place of
occurrence was an open place and the other
circumstances (i.e. motive, disclosure,
recovery and extra judicial confession) were
not proved beyond reasonable doubt, shifting
the burden on the accused to explain the
circumstances in which the deceased
sustained injuries, or to demonstrate that he
parted company of the deceased, would not
be justified in the facts of the case.
25. For all the reasons above, if the High Court
has extended the benefit of doubt to the accused, its
view being a plausible view, in our opinion, does not
call for any interference.
26. The appeals are, therefore, dismissed.
....................................J.
(Sanjay Kishan Kaul)
....................................J.
(Manoj Misra)
....................................J.
(Aravind Kumar)
New Delhi;
April 28, 2023
Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 36 of 36