IMPORTANT POINT
The chain of circumstances is not complete so as to sustain conviction of the appellant under Sections 302 and 394 IPC merely on circumstance of the last seen.

Headnote:Indian Penal Code, 1860-Sections 302 and 394-Offences of murder and robbery-Appellant convicted by courts below on circumstantial evidence (i) appellant having been last seen with the deceased and (ii) Recovery of ornaments made at his instance-Appeal against to Supreme Court-Supreme Court held though circumstance of last seen proved but the chain of circumstances was not complete-Date of death was not date of last seen (Para 9)-Extra judicial confession leading to recovery of ornaments worn by deceased was unnatural (Para 10)-Ornaments recovered not identified-Ornaments (Silver Toda and Khagwai) were of common pattern-Evidence relating to recovery or ornaments was not acceptable (Para 11)-Appeal allowed.
       Held : Having heard learned counsel for the parties and on perusal of the record, we find no reason to disturb the finding of the courts below that the deceased left with the appellant on 8th January, 1981 in the manner projected in the case of the prosecution. We are, however, unable to accept the contention of Mr. Siddharth Dave, learned counsel for the State that the death of Phoolobai had taken place on 8th January, 1981. Dr. Bagrecha (PW13) has given the duration of death to be 1 to 4 days prior to post mortem. Post mortem on the body was conducted on 14th January, 1981. As per the opinion of the doctor the death could be earliest on 10th January and latest on 13th January. Though Mr. Dave rightly contends that in winter decomposition of the body taxes more time but we have no reason to doubt that the doctor had not taken this factor into consideration while giving opinion about the date of the death. (Para 9)
       Held further : Under the aforesaid circumstances, we are of the view that there was neither proper and legal identification of the ornaments nor the recovery as a consequence of the statement of the appellant. The finding of the courts below that the appellant must have killed Phullobai in the greed of ornaments which were robbed by him and subsequently recovered from his house, on exclusion of the evidence of recovery and identification of ornaments, cannot be sustained as this Court is left with the only circumstance of the deceased having left with the appellant on 8th January, 1981. On this circumstance alone, in the instant case, it cannot be held that the prosecution has established the charge against the appellant only on the ground that appellant has failed to offer any explanation in his statement under Section 313, Cr.P.C. We have already come to the conclusion as above that the prosecution has failed to establish that the death of Phullobai took place on 8th January, 1981, the earliest it could be on 10th January, 1981. There is nothing to show as to what transpired between these dates. Mere non-explanation cannot lead to the proof of guilt against the appellant. The prosecution has to prove its case against the appellant beyond reasonable doubt. The chain of circumstances, in our opinion, is not complete so as to sustain the conviction of the appellant. There is thus no substance in the contention urged on behalf of the State that this Court may not interfere in the concurrent findings of fact of the courts below. There has been a complete mis-carriage of justice to the appellant. Thus, we are unable to sustain the conviction of the appellant. (Para 12)
       Held finally : In view of the forgoing reasons we allow the appeal and set aside the impugned judgment and orders of the courts below. The appellant is on bail. The bail bonds are cancelled and sureties discharged. (Para 13)

ORDER

The appellant was convicted by Court of Sessions for an offence under Section 302, IPC and sentenced to life imprisonment. He was also convicted for offence under Section 394, IPC and sentenced four years rigorous imprisonment. Both the sentences were directed to run concurrently. The appeal of the appellant was dismissed by High Court by the impugned judgment. The appellant is in appeal, on grant of leave.

2. The conviction of the appellant is based on circumstantial evidence.

3. In brief, the case of the prosecution is that the appellant is a village artisan being a carpenter. Deceased Phullobai was a widow. She was a village nurse who used to attend to the health of women and help them during pregnancy. She was living with her son Paltoo (PW8) and mother Jhuttobai (PW15). According to Paltoo the appellant came to their house in the evening of 8th January, 1981 and said to deceased that his mother has developed some stomach pain and her services were required. On this representation the deceased went with the appellant to his village. At that time she was wearing silver ornaments, namely, Toda and Khagwari. Paltoo and Jhuttobai waited for the return of the deceased till the evening of the next day. When she did not return Paltoo went to village Mijwani to the house of the appellant. There he could meet only the father of the appellant. On Paltoo making enquiries about his mother the father of the appellant was unable to give any information. Paltoo then went to village Vidisha and reported the fact of missing of his mother to his maternal uncle Halke (PW7). Halke advised him to go to village Barkhera and make a search for her and also to report the matter to the village sarpanch and chowkidar of the village. Paltoo made a report of the incident to village chowkidar on whose advice he along with PW7 lodged a report to the police, Vidisha on 12th January, 1981 under Section 498, IPC stating therein that on 8th January, 1981 the deceased had gone with the appellant for delivery and had not returned back till that date. The further case of the prosecution is that on 13th January, 1981, PW7 made enquiries from the appellant about the whereabouts of the deceased. The appellant then confessed to him having killed her and thrown her in Ulati river. On that information PW7 went to the river side and found that the dead body of Phullobai was lying by the side of the river partly covered by earth and a small portion of cloth was visible.

4. The post-mortem on body was conducted by Dr. KC Bagrecha (PW13). There were the following external injuries on the body:-

"(a) Multiple abrasions at forehead more on left side. Size varying from 1"x1/4" to 1/4"x1/4".

(b) Contusion at face covering whole of the nasal area, both eyes, cheeks and both upper and lower lips and both lids of left eye and right lower lid.

(c) Multiple abrasion and contusion at ante-lateral aspect of the neck on both sides. Anteriorly 2-1/2" in width and extending upto nestroid process and on right upto the angle of mandible. Multiple abrasions of neck. Incised wound at right side neck below mendibular area. Left ear was found missing. Ear was cut from its base."

The internal injuries were these:-

"Brain was congested. Lungs were congested. Left heart chamber was empty, right contained clotted blood. Other organs were also congested:"

5. The cause of death as was opined by the doctor was "asphyxia due to throttling and due to suffocation because of the pressure applied at nose, mouth and neck". Recovery of Kudali and silver ornaments, i.e. Toda and Khagwari were made at the instance of the appellant.

6. The defence of the appellant was that of a complete denial.

7. The two circumstances on basis whereof the appellant has been convicted are (i) the appellant having been last seen with the deceased and (ii) Recovery of ornaments made at his instance.

8. Learned counsel Ms. Sudha Gupta contends that the chain of circumsta

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2003 Supreme(SC) 118

IMPORTANT POINTThe chain of circumstances is not complete so as to sustain conviction of the appellant under Sections 302 and 394 IPC merely on circumstance of the last seen.

Cases Referred (3)

IMPORTANT POINT
The chain of circumstances is not complete so as to sustain conviction of the appellant under Sections 302 and 394 IPC merely on circumstance of the last seen.