Smt. Kaushilya Bai Vs State of Chhattisgarh

1 . This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 20.12.2017 passed by learned Second Additional Sessions Judge, Korba, in Sessions Trial No.113/2016, by which, the appellant

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herein has been convicted for offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.500/- in default of payment of fine, 6 months additional rigorous imprisonment.

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2 . Case of the prosecution, in short, is that on 02.09.2016 at 2:00 p.m. to 03.09.2016 at 10:30 a.m., at village Katbitlakhar in the field of Lalla Ram Rajwade (PW-1), Police Station Urga, the appellant murdered Mangal Sai (now deceased) and in order to screen herself from the offence, she concealed the dead body; thereby the offence has been committed. Kishan Lal Koshley (PW-2) reported the matter to the police, pursuant to which, merg intimation was registered vide Ex.P-1, FIR was registered vide Ex.P-34, inquest was conducted vide Ex.P-5 and dead body of deceased Mangal Sai was subjected to post-mortem, which was conducted by Dr. Kamal Kishore Dewangan (PW-18), who proved the post-mortem report Ex.P-20, according to which, cause of death was stated to be injuries on left temporal heamatoma and death was homicidal in nature. Pursuant to memorandum statement of the appellant Ex.P-9, Saree was recovered vide Ex.P-10, which was sent for chemical examination to FSL and as

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per the FSL report Ex.P-37, no blood was found on the seized Saree. After due investigation, the appellant was charge-sheeted for the aforesaid offence to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured her guilt and entered into defence stating that she has not committed any offence and she has been falsely implicated.

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3 . In order to bring home the offence, prosecution examined as many as 23 witnesses and exhibited 37 documents and the appellant-accused in support of his defence has not examined any witness but has exhibited the document Ex.D-1.

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4 . The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of I.P.C. and sentenced her to undergo life imprisonment, against which the present appeal has been preferred.

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5 . Mr. Ravipal Maheshwari, learned counsel for the appellant would submit that the appellant has been convicted only on the basis of theory of last seen together, which has not been established beyond

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reasonable doubt and even otherwise there is no corroboration of the theory of last seen together and therefore, the appellant is entitled for acquittal on the ground of benefit of doubt and the appeal deserves to be allowed.

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6 . Mr. Afroz Khan, learned State counsel would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant herein for offence punishable under Sections 302 of I.P.C. and therefore, the appeal deserves to be dismissed.

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7 . We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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8 . The first question for consideration as to whether the death of deceased Mangal Sai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-20, proved by Dr. Kamal Kishore Dewangan (PW-18), according to which, cause of death was stated to be injuries on left temporal heamatoma and

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death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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9 . Now, the conviction of the appellant is based on circumstantial evidence and the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter

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of Sharad Birdhichand Sarda v. State of

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Maharashtra 1 which must be fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153, which states as under: -

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“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao

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1.(1984) 4 SCC 116

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Bobade v. State of Maharashtra² where the following observations were made:

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Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

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(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

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10. The trial Court has culled out the following six incriminating circumstances in paragraph 19 of its judgment, which states as under :

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“19-1& vkjksfi;k eaxy lk; dks mldh iRuh mfeZyk ds jgrs gq, ifr cuk dj mldds ?kj esa ?kVuk fnukad ds yxHkx vkB fnu iwoZ viuh iq=h ekulh ds lkFk jgus vk xbZ FkhA

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(1973) 2 SCC 793

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19-2& vkjksfi;k ds eaxylk; ds ?kj esa jgus dk fojks/k u flQZ eaxylk; ds ifjtu dj jgs Fks cfYd Lo;a vkjksfi;k ds ekrk firk ,oa xzkeh.k yksxksa }kjk Hkh fojk/k fd;k tk jgk FkkA vkjksfi;k mlds ekrk firk }kjk okil xzke nsojeky ys tkus ds fy, vkus ij Hkh muds lkFk tkus dks rS;kj ugha gqbZ FkhA

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19-3& ?kVuk fnukad dks vkjksfi;k vius iq=h ekulh ds lkFk eaxylk; ds lkFk nksigj ds le; ugj ij xbZ tgka ls vkjksfi;k us viuh iq=h ekulh dks okil eaxylk; ds ?kj Hkst fn;k rFkk Lo;a vkjksfi;k ,oa eaxylk; ?kVuk LFky ij igqps ftldk leFkZu Lora= lkf{k;ksa }kjk fd;k x;k gSA

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19-4& vkjksfi;k ?kVuk LFky ls 'kke ds le; eaxylk; ds ?kj viuh iq=h ekulh ds ikl xzke cjhMhg ugha xbZ cfYd vius ekrk firk ds xkao nsojeky pyh xbZ rFkk ogka tk dj lh/ks vius eka ds ?kj ugha xbZ cfYd viuh cM+h eka gjhgj ckbZ ds ?kj xbZA

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19-5& gjhgj ckbZ ds ?kj tk dj vkjksfi;k jksus yxhA vkjksfi;k ds gjhgj ckbZ ds ?kj vkus dh lwpuk gjhgj ckbZ ds iq= us vkjksfi;k dh eka dks nh ftl ij vkjksfi;k ds ekrk firk gjhgj ckbZ ds ?kj igqapsA

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19-6& gjhgj ckbZ ds ?kj ls vkjksfi;k ds ekrk firk vkjksfi;k dks vius ?kj ys tkus ds fy, rS;kj ugha Fks tks gjhgj ckbZ }kjk le>k, tkus ds ckn vkjksfi;k dks vius lkFk ys dj x,A”

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11. A careful perusal of the aforesaid incriminating circumstances culled out by the trial Court would show that basically the motive and theory of last seen

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together have been made basis for conviction of the appellant for the offence under Section 302 of I.P.C.

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12. It is the case of the prosecution that the deceased has brought the appellant to live with her otherwise than marriage in lifetime of his wife Urmila Bai (PW-8), which was opposed by the family members of the deceased and also by the parents of the appellant herein. It is further case of the appellant that on the date of offence, on 02.09.2016, at afternoon, the appellant had gone to canal for taking bath alongwith deceased, son of deceased Fulsai (PW-13) and daughter of appellant Mansi (not examined), but the appellant had sent back Fulsai (PW-13) and Mansi to home by giving Rs.100/- to Mansi and thereafter, on 03.09.2016 at 10:30 a.m., the dead body of deceased was noticed by Lalla Ram Rajwade (PW-1). The subsequent conduct of appellant is also relevant fact, as the appellant did not go back to the house of Mangal Sai, but she went to the house of Harihar Bai (PW-16) and, as such, on that basis, we consider the correctness of the aforesaid findings of the trial Court one by one to find out whether the trial Court is

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justified in convicting the appellant for the offence under Section 302 of I.P.C.

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13. So far as the incriminating circumstances No.1 & 2, it is apparent from the record that the appellant alongwith her daughter Mansi had stayed with the deceased in his house and as per the statement of Kishan Lal Koshley (PW-2), son of deceased, tense atmosphere has been created and it is quite natural that in the lifetime of wife Urmila, the deceased has brought the appellant herein to live with her, which has created atmosphere of tension and disturbance in the house of the deceased.

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14. The third incriminating circumstance, which has been brought on record is that the appellant had also taken Mansi along-with her to take bath but thereafter, appellant had sent back Mansi after giving her Rs.100/- to the house of Mangal Sai, however, Mansi has not been examined for the reasons best known to the prosecution. However, Fulsai (PW-13), who had also gone to take bath along-with appellant, deceased and Mansi, had also sent back along-with Mansi to their house. Furthermore, though the theory of last seen together has been established as per the statement of Sheetal Bai (PW-9) and Sanita (PW-15) both sisters, but

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it requires corroboration in light of the decision of the Supreme Court in the matter of Navaneethakrishnan v. State by Inspector of Police 3.

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15. In Navaneethakrishnan (supra), the Supreme Court has held that though the evidence of last seen together could point to the guilt of the accused, but this evidence alone cannot discharge the burden of establishing the guilt of the accused beyond reasonable doubt and requires corroboration, and observed in paragraph 22 as under: -

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“22. PW-11 was able to identify all the three accused in the court itself by recapitulating his memory as those persons who came at the time when he was washing his car along with John Bosco and further that he had last seen all of them sitting in the Omni van on that day and his testimony to that effect remains intact even during the crossexamination in the light of the fact that the said witness has no enmity whatsoever against the appellants herein and he is an independent witness. Once the testimony of PW 11 is established and inspires full confidence, it is well established that it is the accused who were last seen with the deceased specially in the circumstances when there is nothing on record to show that they parted from the accused and since then no activity of the deceased can be traced and their dead bodies were recovered later

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3 (2018) 16 SCC 161

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on. It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone cannot discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration.”

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16. However, in shape of corroboration, there is no evidence on record except the subsequent conduct of the accused, which has been relied upon by the trial Court. However, it is correct to say that it has been proved by Harihar Bai (PW-16) that the appellant had gone to her village Devarmaal, but it is the case of the defence that she was resident of Devarmaal and therefore, as per the statement of PW-16, she was found in the village Devarmaal and since the appellant was not married with Mangal Sai, it is quite natural that the appellant was found in her house and not in the house of a person to whom she was not married and therefore, this fact cannot be held to be the incriminating circumstance. Since the dead body was found in an open place and the theory of last seen

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together has been established, but it is not corroborated by any further piece of evidence and the subsequent conduct of the accused/appellant that she has been found in her house cannot be said to be relevant fact under Section 8 of the Indian Evidence Act and in absence of non-explanation of the appellant under Section 313 of Cr.P.C., the trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of I.P.C., as the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence is not established beyond reasonable doubt.

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17. In view of above discussion, the impugned judgment of conviction and order of sentence dated 20.12.2017 is set aside. The appellant stands acquitted giving her benefit of doubt from the charge framed against her for the offence punishable under Section 302 of Indian Penal Code. Consequently, the appellant is directed to be released forthwith from jail, unless she is required in any other offence.

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18. In the result, the appeal is allowed.

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19. Let a certified copy of this judgment along-with the original record be transmitted to the trial Court

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concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Agrawal) Judge Judge

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Ashok

Smt. Kaushilya Bai v. State of Chhattisgarh

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Smt. Kaushilya Bai v. State of Chhattisgarh

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