R.K. Shukla, J.@mdashThis appeal filed by Ish Mohd. and Smt. Ido is directed against the judgment and order dated 30-6-1978 passed by the IV Additional Sessions Judge, Mainpuri, whereby he has convicted and sentenced the Appellants Ish Mohd. and Smt. Ido u/s 302/34 IPC and sentenced each of them to imprisonment for life. The third accused Smt. Batasho was given the benefit of doubt and acquitted of the charges.
2. Briefly the facts of the prosecution case are that the complainant Karim Khan PW 1, Shahzade and Tale war deceased are real brothers. They use to live in village Rampur and later on separated. After separation they came to live at Nagla Dali hamlet of village Garhi. Two years before the occurrence Shahzada and Talewar also separated on account of differences between the ladies. Talewar deceased built his own house in which he lived along with his wife Smt. Ido Appellant and mother-in-law Smt. Batasho (acquitted accused) at a distance of 60 yards from the house of Shahzada Khan. Smt. Ido, Appellant, is a divorced lady. She was married to Talewar deceased about 8 or 9 years back. From their wedlock three children were born. Appellant Ish Mohammad r/o village Padma is a sister''s son of Talewar deceased and used to visit Talewar''s house. It is alleged that Ish Mohd. Appellant had illicit relations with Smt. Ido and a week prior to the actual occurrence a wordy quarrel took place between the deceased and the Appellants which lasted for about four hours from 8 p.m. to mid night. The next day on 18th September, 1977, at about 5 p.m. Smt. Ido informed Shahzada PW 5, brother of the deceased that Talewar had left the house and had gone away on account of some displeasure. Shahzada conveyed this information to his elder brother Karim Khan, complainant, who lived in village Rampur. Next morning on 19th September, 1977, Karim Khan and Shahzada went in search of Talewar deceased and visited Firozabad, Patau, Raimja and Adampur and returned to Rampur on the fifth day at about 4 p.m. on the 6th day they came to Dali Nagla and found Talewar''s house locked. Thereafter they went to village Padan to find out if they were there. When no one was found Karim Khan and Shahzade broke open the lock of Talewar''s house. On entering inside they found foul smell coming from inside the Kotha where Bhoosa was stored. On removing the Bhoosa they recovered the dead body of Talewar deceased which was about 9 inches under the earth. The dead body was taken up and kept in the court-yard at about 10 or 10.30 A.M.
3. Karim Khan PW 1 went to the Police Station and got the written report Ex. Ka 1 scribed by Hori Lal Panwari who keeps a shop outside the police station and delivered the same at the police station. A case was registered against all the three accused u/s 302/34 IPC and it was entrusted for investigation to Sri Nathu Singh Yadav, S.I. PW 6 who was present at the police station. He reached the spot on 26th September, 1977, at about 5.30 p.m. soon after a list of articles in respect of Talewar''s property Ex. Ka 4 was handed over to him by Shahzade Khan PW 5. He inspected the spot and prepared site plan Ex. Ka 10. Karim Khan PW 1 was interrogated and the inquest report Ex. Ka 5, photo lash Ex. Ka 6, challan lash Ex. Ka 7 and covering letter Ex. Ka 8 were prepared by Nathu Singh, S.I. The dead body of Talewar deceased was sent through Chandrapal constable and Chaukidar for post mortem examination which was conducted by Dr. R.S. Gupta PW 7 on 27th September, 1977 and he found the following ante-mortem injury on his person:
Incised wound 9 cm. x 3 cm. x bone deep on front of neck on mid of thyroid cartilage.
No other injury recognizable on the dead body was found. On internal examination thyroid cartilage on neck vessels was found cut: surrounded vessels also cut. In the opinion of the doctor the death was caused due to shock and haemorrhage due to injury noted above.
4. After completing the investigation charge sheet was submitted and the case was committed for trial to the Sessions where a charge u/s 302/34 IPC was framed against all the three accused.
5. The prosecution examined in all eleven witnesses in support of its case out of whom Karim Khan PW 1 and Shahzade Khan PW 5 are the two brothers of Talewar (deceased) and they have unfolded the prosecution story upto the stage the dead body was recovered and was kept in the court yard by them. The rest of the witnesses are Ranvir Singh PW 4 who deposed about the arrest of the three accused by the S.I. He has further deposed that Ish Mohd. opened the lock of the house situated at Padam and delivered the articles Ex. 1 to 11 from his Kothari and that he signed the recovery memo Ex. Ka 2. He has also stated that Ish Mohd. also told the S.I, that he would deliver the knife and that Ish Mohd. took the S.I. to Nagla Dali, took out the knife Ex. 12 from the courtyard and delivered the same to the S.I. Recovery memo of the same is Ex. Ka 3 which bears the signature of this witness. PW 2 Ram Singh is a witness of the inquest and had identified the dead body of Talewar. He has also stated that nine months back there had been a quarrel between the accused and Talewar during the night and the same lasted till mid night when he went to sleep; Talewar was not seen thereafter; the accused lived in the village the next day and on Wednesday the house was found locked in the morning. Sahukar PW 3 testified about the illicit relations between Ido and Ish Mohd. and also about the quarrel which took place at the house of Talewar. Rest of the witnesses are the aforesaid doctor, Investigating Officer and the other formal witnesses of the police.
6. All the accused, namely, Ish Mohd., Smt. Ido and Smt. Batasho pleaded not guilty to the charge u/s 302/34 IPC but they did not produce any witness in their defence.
7. After discussing the evidence in detail the learned Sessions Judge convicted Ish Mohd. and Smt. Ido Appellants and acquitted Smt. Batasho Devi as aforesaid. Hence this appeal.
8. We have heard the learned Counsel for the Appellants and Sri Jitendra Kumar, learned Additional Government Advocate on behalf of the State. There is no direct evidence of the occurrence. The convictions of the Appellants rests on 6 circumstances enumerated by the trial court as under:
(1) That the prosecution unquestionably established that the three accused before the court were at the house of the deceased at about the time the murder was committed.
(2) That Smt. Ido deliberately gave false information to Shahzade indicating disappearance of Talewar at a time when he was already dead.
(3) That all the three accused disappeared from the place of murder, i.e. the house of Talewar under mysterious circumstances and kept mum till 2nd October, 1977, the day they were arrested at Khandit Canal Bridge.
(4) That the article Ex. 1 to 11 belonging to Talewar and his wife were recovered from the house of Ish Mohd. accused situate in village Padam.
(5) That Ex. 12 which, in all probability, was the instrument of assault was discovered at the pointing of Ish Mohd. Appellant from the courtyard of Talewar''s house.
(6) That the motive for the murder is alleged to be the illicit relationship of Ish Mohd. with Smt. Ido, wife of the deceased Talewar, and both of them planned to remove Talewar from their way. Secondly, the accused wanted to deprive the deceased Talewar of his belongings.
9. In a case where there is no direct evidence regarding commission of the offence by the Appellant and the prosecution case rests entirely on circumstantial evidence, then it must be complete and incapable of explanation of any other hypothesis than that of the guilt of accused. All the circumstances brought out by the prosecution must inevitably and exclusively point to the guilt of the accused and there should be no circumstances which may reasonably be considered consistent with the innocence of the accused. The court will have to bear in mind the cumulative effect of all the circumstances in a given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case.
10. In view of the aforesaid observations after carefully scrutinising all the evidence on record we find that the evidence of recovery and discovery is not reliable. The Investigating Officer Sri Nathu Singh Yadav, S.I. PW 6 has admitted in his cross-examination that although during the investigation he was told that Smt. Ido Appellant was a woman of loose character but he did not try to find out with whom she had illegitimate connections. He did not try to find out even this, with whom she was married earlier and what was her relationship with Talewar (deceased). He has further admitted that Karim Khan PW 1 and Shahzade Khan PW 5 never told him that they entered inside the house after breaking the lock. Instead, they told that they entered inside the house after opening the lock; they had also not told that there was A bad smell. Neither of them gave any broken lock to him (Investigating Officer). Not only this, he has also admitted that he has neither shown in site plan Ex. Ka 10 nor noted down in the case diary the presence of dugged earth from that Kothari from where the body of Talewar (deceased) was recovered. He has also stated that no site plan of the place of recovery of the knife (weapon of assault) was prepared by him nor interrogated the accused there from where they were arrested.
11. The aforesaid statement of the Investigating Officer creates doubt about the veracity of the statement of PW 1 Karim Khan and PW 5 Shahzade Khan who have improved their statement on material point. In the FIR Karim Khan has written "Tala Kholwa Kar Dekha". Similar was the statement before the Investigating Officer but in the trial court they have changed it and stated that they entered the house after breaking the lock. No broken locks were given to the Investigating Officer. This is material improvement which creates doubt about the recovery of the dead body in the manner stated by the witnesses. After going through the statements of Investigating Officer and other witnesses it appears to us that in this case the ordinary recoveries of Ex. 1 to 11 and the knife Ex. Ka. 12 (weapon of assault) have been converted into discovery u/s 27 of the Evidence Act to make it admissible in evidence.
12. Faced with the aforesaid situation, the learned Additional Government Advocate has fairly conceded before us that this is a case of no evidence. We have ourselves checked the evidence on record with utmost care and found that the chain of circumstances are not so complete that it can be said that Talewar was murdered by the Appellants. Absconding by itself is not conclusive either of guilt or of guilty conscience. For, a person may abscond on account of fear of being involved in the offence or for any other allied reason. There is only one injury on the neck of Talewar deceased which could be caused by any body while he was asleep. Under these circumstances it cannot be said with certainty that there is sufficient evidence to prove the guilt of the Appellants.
13. In view of the aforesaid discussion we are satisfied that the prosecution has failed to prove its case against the two Appellants beyond all reasonable doubt. Thus convictions of both the Appellants u/s 302/34 IPC and the imposition of sentence of imprisonment for life to each of them are not justified and they are liable to be set aside.
14. In the result, the appeal is allowed. The convictions of both the Appellants Ish Mohd. and Smt. Ido Under Sections 302/34 IPC and the sentence of imprisonment for life to each are set aside. The Appellants are in jail. They should be released forthwith unless they are wanted in jail in any other case. A copy of this order must be sent to the Superintendent Jail, Mainpuri, at once for compliance and report to this office within a month.
