Shree Chandrashekhar, J
1. The sole appellant has challenged the judgment of conviction under section 302 and section 201 IPC dated 3.9.2001 and the order of sentence of
R.I. for life with fine of Rs. 1000/- for the offence under section 302 IPC and R.I. for two years with fine of Rs. 500/- for the offence under section
201 IPC dated 5.9.2001 passed by the 1st Additional Sessions Judge-Dumka in Sessions Case No. 299 of 1996.
2. The appellant, namely, Upendra Mandal was granted bail by this court vide order dated 15.10.2001.
3. On an allegation that the appellant, namely, Upendra Mandal who was married to Rita Devi in the year 1989 has caused her death and caused
disappearance of her dead body, Saraiyahat P.S. Case No. 102 of 1995 was registered under sections 364/34 IPC against Dubal Mandal, Nakul
Mandal and the appellant, on the basis of fardbeyan of the brother of Rita Devi, namely, Shiv Shankar Kanti. After the investigation, the police
submitted charge-sheet u/s 302,365 and 201/34 IPC against the above-named accused persons and they were sent up for trial to face the charge
framed against them vide order dated 3.12.1997. During the trial, the prosecution has examined altogether eight witnesses; the informant is PW-8.
But, co-villagers of the appellant, namely, Sicho Mandal-PW-3 and Chunilal Mandal-PW-4 have been declared hostile at the instance of the
prosecution.
4. Body of Rita Devi has not been recovered.
5. The learned Judge has held that evidence of the seizure-memo witnesses, namely, Arun Mandal-PW-1 and Kongress Mandal-PW-2 is of no use;
the letter allegedly written by the accused Nakul Mandal to the appellant was not brought on record. The witness, namely, Radha Krishna Manjhi who
has been examined as PW-6 has not supported the prosecution on the point of Panchayati. The witness, namely, Narsingh Prasad Rana is the village
Sarpanch who has been examined as PW-7 and he confirms that he had participated in the Panchayati which was convened to bring compromise
between the appellant and his wife.
6. The learned judge has recorded a finding that there was some discordant note in the matrimonial relationship of the appellant with Rita Devi.
7. The accused persons, namely, Nakul Mandal and Dubal Mandal have been acquitted of the charges framed against them.
8. Ms. Aprajita Bhardwaj, the learned Amicus submits that; (i) when corpus delicti is not found in absence of any evidence which would reflect
intention of the appellant to murder his wife, the appellant cannot be convicted; (ii) the incriminating circumstances brought on record by the
prosecution against the appellant are not conclusive and on the basis of such evidence an inference against the appellant of causing death of his wife
cannot be drawn and; (iii) conviction of the appellant under section 302/201 IPC is unsustainable for the reason that none of the incriminating
circumstances has been put to him during his examination under section 313 Cr.P.C.
9. The learned Amicus has referred to the judgments in “Lallu Manjhi and Another Vs. State of Jharkhand†reported in “(2003) 2 SCC 401â€
and “Rishipal Vs. State of Uttarakhand†reported in “(2013) 12 SCC 551â€, to fortify her contention.
10. The learned APP, Mrs. Laxmi Murmu, submits that the appellant, who has taken a stand that his wife has died of cardiac arrest, must produce
some evidence on death of Rita Devi, and failure of the appellant to produce any such evidence would point out towards his guilt. The learned APP
submits that may be in absence of the corpus delicti it cannot be proved how the death has been caused but inference on guilt of an accused can be
drawn from other direct or circumstantial evidence.
11. The learned APP has relied on the judgment rendered in the case of “Ram Chandra Vs. State of U.P.†reported in “AIR 1957 SC 381â€.
12. The law on absence of corpus delicti is well-settled. The old English view that “I would never convict a person of murder or manslaughter
unless the fact were proved to be done, or at least the body was found deadâ€, has not been adopted by the Indian Courts. In the case of “Ram
Chandra Vs. State of U.P.†reported in “AIR 1957 SC 381â€, the supreme court has observed thus:
“6…..It is true that in law a conviction for an offence does not necessarily depend upon the corpus delicti being found. There may be reliable
evidence, direct or circumstantial, of the commission of the murder though the corpus delicti are not traceable.â€
13. Recently, the law on the subject has been summarized by the Supreme Court in “Rishipal Vs. State of Uttarakhand†reported in “(2013) 12
SCC 551â€, thus:
“14. In the absence of corpus delicti what the court looks for is clinching evidence that proves that the victim has been done to death. If the
prosecution is successful in providing cogent and satisfactory proof of the victim having met a homicidal death, absence of corpus delicti will not by
itself be fatal to a charge of murder. Failure of the prosecution to assemble such evidence will, however, result in failure of the most essential
requirement in a case involving a charge of murder. That is precisely the position in the case at hand. There is no evidence either direct or
circumstantial about Abdul Mabood having met a homicidal death. The charge of murder leveled against the appellant, therefore, rests on a rather
tenuous ground of the two having been last seen together to which aspect we shall presently advert when we examine whether the two being last
seen together is proved as a circumstance and can support a charge of murder.â€â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦..
19. It is true that the tell-tale circumstances proved on the basis of the evidence on record give rise to a suspicion against the appellant but suspicion
howsoever strong is not enough to justify conviction of the appellant for murder. The trial court has, in our opinion, proceeded more on the basis that
the appellant may have murdered the deceased Abdul Mabood. In doing so the trial court overlooked the fact that there is a long distance between
“may have†and “must have†which distance must be traversed by the prosecution by producing cogent and reliable evidence. No such
evidence is unfortunately forthcoming in the instant case. The legal position on the subject is well settled and does not require any reiteration. The
decision of this Court have on numerous occasions laid down the requirements that must be satisfied in cases resting on circumstantial evidence. The
essence of the said requirement is that not only should the circumstances sought to be proved against the accused be established beyond a reasonable
doubt but also that such circumstances form so compete a chain as leaves no option for the court except to hold that the accused is guilty of the
offences with which he is charged. The disappearance of deceased Abdul Mabood in the present case is not explainable as sought to be argued
before us by the prosecution only on the hypothesis that the appellant killed him near some canal in a manner that is not known or that the appellant
disposed of his body in a fashion about which the prosecution has no evidence except a wild guess that the body may have been dumped into a canal
from which it was never recovered.â€
14. Admittedly, there is no eye witness to the actual occurrence; how and in what manner Rita Devi has died has not been proved by the prosecution.
The learned Judge has referred to two circumstances against the appellant on the basis of which he has been convicted for causing death of his wife.
The first circumstance is differences between the appellant and his wife. Brother of the deceased, the informant, has alleged that his sister was
harassed by the appellant and his family members. Another circumstance referred by the learned judge is that on enquiry the appellant did not give
any satisfactory answer about the whereabouts of Rita Devi. In “Padala Veera Reddy V. State of A.P., 1989 Supp (2) SCC 707â€, the Supreme
Court has laid down the tests which must be found satisfied in the cases resting upon the circumstantial evidence. These are:
“10…….
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established:
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused:
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human
probability the crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the
guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.â€
15. We find that on the basis of the above-noted circumstances an inference on guilt of the appellant cannot be drawn. How erroneous was the
approach of the learned judge is reflected in the findings recorded by him in paragraph No.11 of the judgment, where he says that no proof, not a chit
of paper, has been produced by the accused to establish his defence. It is a well-settled proposition in criminal jurisprudence that it is for the
prosecution to prove its case to the hilt, that is, beyond reasonable doubt. Failure to give explanation or unsatisfactory explanation by the accused,
except in cases where a statutory presumption has been raised, cannot be a ground to hold him guilty. Differences between the couple in the marriage
is common and the allegation of evasive reply by the appellant is too vague and remote. It is the prosecution’s own case that the appellant took his
wife to Delhi. The informant has not claimed that he continued to ask the appellant about his sister. He has remained silent for about two years and he
admits that when he heard rumours about death of his sister he has lodged the case. In Bharat V. State of M.P.., (2003)3 SCC 106, the Supreme
Court has held as under:
“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 miscarriage of justice to the appellant. Thus, we are unable to sustain the conviction of the appellant.â€
16. The defence set up by the accused persons during the trial was that Rita Devi died of cardiac arrest at Panchali (Delhi) and in-laws of the
appellant were duly informed.
17. From the evidence laid during the trial in S.C. Case No. 299 of 1996, we do not gather any incriminating circumstance against the appellant which
would even indicate that in all probability it was the appellant who has caused death of his wife-Rita Devi. Accordingly, we hold that the prosecution
has failed to prove the charge under section 302/34 and section 201 IPC against the appellant. His conviction under section 302 and section 201 IPC
dated 3.9.2001 and the order of sentence dated 5.9.2001 for the aforesaid offences passed by the learned 1st Additional Sessions Judge-Dumka in
S.C. No. 299 of 1996 are set-aside.
18. In the result, Criminal Appeal (DB) No. 424 of 2001 is allowed.
19. The appellant is acquitted of the charges levelled against him and he is discharged of liability of the bail-bonds furnished by him.
20. We appreciate the able assistance rendered by Ms. Aprajita Bhardwaj, the learned Amicus and Mrs. Laxmi Murmu, the learned APP.
21. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). She shall be paid
Rs.5,500/- for each effective date, but subject to the cap as per the Notification dated 23.11.2017.
22. Let the lower court record be transmitted to the court concerned, forthwith.
