2002 Supreme(SC) 890

2002(6) Supreme 228
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
Doraiswamy Raju & Shivaraj V. Patil, JJ.
Ashish Batham -Appellant
versus
State of Madhya Pradesh -Respondent
Criminal Appeal No. 148 of 2002
Decided on 9-9-2002
Counsel for the Parties :
For the Appellant : Sushil Kumar, Sr. Advocate, Adolf Mathew and Sanjay Jain, Advocates.
For the Respondent : Siddartha Dave and Ms. Vibha Datta Makhija, Advocates.

IMPORTANT POINT
The appellant seems to have been roped in for double murders by committing house trespass with the object of murders on the basis of suspicion based on insufficient circumstantial evidence. The findings of the courts below though concurrent do not deserve the merit of acceptance by Apex Court being vitiated by glaring infirmities and illegalities resulting in grave miscarriage of justice.

Headnote:Indian Penal Code, 1860-Sections 302 and 449-Conviction of appellant for the murders of two girls by committing house trespass to commit said murders-Concurrently done by Sessions Court and High Court-Appeal against to Supreme Court-Case based on circumstantial evidence-Law stated-No complete chain of circumstances found-Missing links filled by manipulated materials-Prosecution suppressing and withholding most vital materials gathered by CID investigation-Courts below overlooked serious pitfalls-Concurrent verdict whether liable to be set aside? (Yes)-Appeal allowed-Case law discussed and applied.

       Held : The courts below proceeded to believe the disappointment and failure in love of the accused with Ms. Priti to be the strong motive for the appellant to have committed the murder and as a firm circumstance to connect him with the incident. From the mere fact that the deceased Priti and the appellant were said to be in love alone, it cannot be even remotely presumed that he should have been the cause for the murder unless it is substantiated by credible evidence that the affair had broken beyond redemption. This part seems to have more surmised by courts than substantiated by the prosecution on any credible or legally acceptable evidence. In our view, therefore, the motive factor seems to have no legal basis or sufficiently proved to constitute a circumstance to connecting the appellant with the occurrence. (Para 10)

       The next circumstance sought to be relied upon is that the appellant, who was transferred from Shajapur and working at the relevant time at Bhopal, was found entering near the compound and leaving the place during the time between 6.00 and 7.15 a.m. on the morning of 8.4.1999. In the absence of any clinching material brought on record by the prosecution to show that the appellant did not, as a matter of fact, travel as per the reservations made by him along with his sister (D.W.1), it was not permissible for the courts below merely to disbelieve DW-1 and DW-2 for no valid reason and to surmise, in our view, most unjustifiably that the appellant was clever enough to prepare the material for the defence of alibi, which, according to them, remained unsubstantiated. To support the prosecution version, an arrest of the appellant was shown on 12.4.1999 at Shajapur by P.W.27. It was sought to be projected as though he was absconding and avoiding being apprehended without choosing to examine Inspector Gaur, who had been to Bhopal to investigate and who really brought him into Shajapur and presented him to the Investigating Officer (P.W.27). To add further to the mysterious move of the prosecution, no attempt was made to mark or let in evidence of the relevant railway officials, though the materials gathered were shown in the list of documents by the prosecution. It appears that on a grievance of harassment and biased and partial investigation by the local Police, complaint seems to have been made necessitating the CID officers to conduct an independent investigation and submit a report, but claiming privilege and protection under Section 137(6) of the Cr.P.C., not only those papers were removed from the case file, but no one associated with the said investigation were even examined though they were cited as witnesses and were also said to be present in court on 7.12.2000. Strangely, the learned Trial Judge while examining the accused under Section 313, Cr.P.C., was shown to have put questions about the conduct of those investigating officers to the accused. The serious lapse in not pursuing the examination of the finger prints or bring on record the results of fingerprints taken and making them available for consideration as well as the omission to bring to the notice of the Court the result of the lie detector test, to which the appellant was subjected, sufficiently create serious suspicion and cast great shadow of doubt on the credibility and truthfulness of the prosecution case. (Para 11)

       Held also : The entire episode, both with reference to this recovery as well as the recovery of the knife said to have been used in the commission of the offence as well as the blood stained clothes of the appellant seem to be much more shrouded in suspicion and dramatic than real to inspire any confidence or faith to place any reliance on either of them. (Para 12)

       Held further : The identification test said to have been conducted by the Tehsildar (PW-8) and the so-called identification of the same by PW-2 and his wife of the chain said to have been worn by the deceased Nidhi does not carry the case of the prosecution any further. The delayed recovery that too after the second remand of the appellant cast serious doubts about the said circumstance itself to be true or accept to have been proved. Though PW-10, the panch witness would claim that the appellant signed the disclosure statement Ex.P-23 in his presence, the same really does not bear any signature of the appellant. This fact taken together with the deposition of PW-10 that the appellant was found handcuffed and his face was covered and the non-examination of the other witness in spite of such doubtful version, the credibility of the so-called disclosure statement as well as the alleged recovery becomes seriously doubtful. (Para 13)

       Held in addition : Considering also the number, nature and manner of injuries found inflicted on the body of the two girls as also the deposition of PW-18. the Doctor, who conducted the post-mortem, serious doubts, in our view, could reasonably be said to arise to engulf the credibility of the prosecution theory, as a whole, as to whether it was possible at all for a single person to inflict so many injuries with one knife and within such a short span of time left between PW-2 and his wife leaving from the house and returning from their morning walk. It is also doubtful as to whether one person could have, without getting himself hurt or receiving any form of injury during altercation, in retaliation from the two girls, inflicted so many injuries. In this context, the absence of any explanation to the bloodstains found on the terrace of the house also assumes significance and considerably affect the veracity of the case projected by the prosecution. (Para 14)

       Held thereafter : On a careful reading of the relevant portions of the judgment of both the learned Sessions Judge as well as the Division Bench of the High Court, to which our attention has been invited by the learned counsel appearing on either side, we are constrained to place on record that both the courts below have committed the same serious error in presuming the guilt of the appellant first and try thereafter to find out one or other reason to justify such a conclusion without an objective, independent and impartial analysis or assessment of the materials, before recording a finding on the guilt of the appellant. Contradictory standards or yardstick and lack of coherence is found writ large in the manner of consideration adopted by the courts below. In the case of evaluation of the evidence, it could be seen so patently that insignificant things have been unduly magnified and serious lapses and withholding of vital materials and relevant witnesses have been unjustifiably glossed over despite the fact that the production of those materials would have really helped to fix the guilt or otherwise of the appellant concretely and bring about the real truth about the matter. We find, on going through the materials on record and the judgments of the courts below, the case before us to be an ideal and illustrative one to justify the apprehensions often reiterated by this Court that the mind was apt to take pleasure in adopting the circumstances to one or the other circumstance without straining a little to supply even the links found wanting to render them complete. The fact that at a busy place like the one in and nearby the Hospital area, a thickly residential with surroundings as spoken to by the witnesses such murder of two girls could be said to have been executed without attracting the attention of anyone nearby or regular passersby at that point of time in the area also seriously improbablise the prosecution version that the appellant alone was and could have been the culprit. We are also of the view that the doubtful and suspect nature of the evidence sought to be relied upon to substantiate the circumstances in this case themselves suffer from serious infirmities and lack of legal credibilities to merit acceptance in the hands of Courts of Law, since the very circumstances sought to be relied upon themselves stood seriously undermined the existence or proof of one or more of stray circumstances in the chain, break and dislocate the link in such a manner so as to irreversibly snap the link in the chain of circumstances rendering it difficult, inappropriate as well as impossible too, to consider even one or more of them alone to either sufficiently constitute or provide the necessary basis to legitimately presume the guilt of the appellant. We could not resist but place on record that the appellant seems to have been roped in merely on suspicion and the story of the prosecution built on the materials placed seems to be neither the truth nor wholly the truth and the findings of the courts below, though seem to be concurrent, do not deserve the merit of acceptance or approval in our hands having regard to the glaring infirmities and illegalities vitiating them and patent errors apparent on the face of the record, resulting in serious and grave miscarriage of justice to the appellant. (Para 15)

       Held finally : For all the reasons stated above, the judgments of the courts below are set aside. The appeal is allowed and the appellant is acquitted and directed to be released forthwith, if not required in any other case. (Para 16)