Mukta Gupta, J.@mdashBy the present appeal, the appellant challenges the judgment and order dated May 10, 1999 convicting him for offence punishable u/s 302 IPC and directing him to undergo imprisonment for life and to pay a fine of Rs. 2,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months.
2. Learned counsel for the appellant contends that the present is a case of no evidence. The two alleged eye witnesses have not supported the prosecution case. The impugned judgment, returning a finding that the appellant absconded after the incident, fails to note that the appellant attended the court proceedings on the next day and was available throughout. No specific question has been put to the appellant qua absconsion u/s 313 Cr.P.C. and hence the same cannot be used against him. There is delay in lodging of the FIR. The prosecution version as stated by the eye witnesses in the court is corroborated by the postmortem report, which shows presence of alcohol in the stomach of the deceased. The shirt, whereon stains of blood of group ''A'', was stated to be found, had been washed. The appellant could not have been wearing the same shirt for four days. No weapon of offence has been recovered. The motive has also not been proved. Even as per the post-mortem report, injuries were possible by fall. Hence the appellant be acquitted.
3. Learned APP for the State on the other hand contends that even though the eye witnesses have not supported the prosecution case however, there is ample circumstantial evidence to prove that the appellant committed the offence punishable u/s 302 IPC. The site plan shows that the theory now being put up by the witnesses was improbable. No pointed object was found at the spot hence the injuries were inflicted by a sharp weapon. Despite the murder of the brother of the appellant, the appellant absconded and was not traceable. Thus an adverse inference is required to be drawn. There is no delay in lodging of the FIR. The clothes of the accused were found blood stained with the blood of the deceased, which is sufficient to connect the appellant to the crime. Hence the appeal be dismissed.
4. Heard learned counsels for the parties. The investigation was set into motion on a call received from JPN Hospital on July 8, 1997 at 1.25 AM informing that Kishan Pal S/o Raghuveer Singh has been brought to the hospital and declared dead. On this PW-10 SI Onkar Singh along with Constable Sushil Kumar reached JPN Hospital and noticed three wounds on the belly of the deceased. The doctor told that the MLC would be available only in the morning in the mortuary. Since no witness was available at that time in the hospital, he returned to Village Gharoli, Trilokpuri where he met Bala wife of the deceased and recorded her statement Ex. PW-10/A.
5. PW-4 Smt. Bala stated to the police that she was staying with her husband and her brother-in-law Panna Lal was staying separately in the same house. Her father-in-law had received compensation of five bigha land, which was acquired by the government. The said amount was lying in two separate accounts in State Bank, Kalyanpuri due to which there was dispute between her husband and brother-in-law. On that night at about 9.00 PM her husband and at 10.00 PM Panna Lal came after closing their shops. Her husband asked Panna Lal to settle the dispute regarding money distribution with their father, which was negated by Panna Lal. Thus there was a quarrel between the two of them. At around 11.00 PM Panna Lal told her husband that both of them can talk first and thereafter they can talk to their father. Panna Lal took her husband towards the outer gali in the house. When her husband reached at the gate, her brother-in-law Panna Lal said in a loud voice that he was giving money to her husband. Hearing that voice she and her son, who was sleeping on the terrace, went towards the gate. In the meantime, Panna Lal stabbed her husband in the stomach thrice and thereafter ran away with the knife. She and her son made her husband lie down on the cot. Lot of blood oozed out. Thereafter her father-in-law and her son took her husband to JPN hospital in the three-wheeler scooter where he was declared dead. However, in the Court neither this witness nor her son supported the prosecution case.
6. The body of the deceased was sent for post-mortem. PW-11 Dr. B. Narayan proved the MLC and the post-mortem report. As per the MLC and post-mortem report, there were three stab injuries in the abdomen which were:
i. On epigastrium ''V'' shaped inserted 1 cm x 1.5 cm.
ii. On umbilical region 1 cm vertically (omentum coming out through it)
iii. On right iliac region 1 cm vertically with uneven edge.
7. Injury No. 1 after cutting thigh skin, subcutaneous tissues and underlying muscles giving nick in the left dome of diaphragm in an area of 3 cm x 1.3 cm and then injured the spleen at its inferior border. Injury No. 2 after cutting skin and subcutaneous tissues and underlying muscle, penetrated abdominal cavity by giving nick in the peritoneal cavity. It then produced contusion in the mesentry on small intestine. As per PW-11 the cause of death was due to haemorrhage and shock consequent upon stab injury to the spleen by injury No. 1, all the injuries were ante-mortem and recent in duration, injury Nos. 1 and 2 were caused by single edged sharp cutting weapon. Injury No. 1 was sufficient to cause death in the ordinary course of nature. The doctor also opined that the stomach had smell of alcohol.
8. A perusal of the site plan Ex. PW-10/D shows that the incident took place at point ''A'' which is an area in between the rooms and the toilet in the portion where the appellant was living. The version of the appellant that the deceased fell from the terrace is supported by the site plan as there is no terrace at point A.
9. PW-4 and PW-5 the wife and son of the deceased, who have turned hostile, deposed in Court that about 11.00 PM she was sleeping and her husband had gone outside. When he came back after five-ten minutes he had caught hold of his abdomen and blood was oozing out. The deceased told that he had fallen down on the ground and received injuries. Learned counsel for the appellant has also emphasized that as per the opinion of the doctor PW-11, the injuries were possible by a fall. This is an incomplete reading of the testimony of PW-11. PW-11 in his cross-examination stated that the injuries as mentioned in MLC Ex. PW-11/A were possible if a person under the influence of liquor falls on a sharp pointed object from the first floor of the house. As noted above, the spot where the incident took place, there was no possibility of the deceased falling down from the first floor. Further no sharp pointed object was found at the said place.
10. Further, PW-10 SI Onkar Singh has testified having taken the blood earth control from near the cot. This is the place where the deceased was laid on the cot after being injured. During the investigation, PW-10 also collected the blood stained plaster piece, the mattress, baniyan of the deceased and blood stained gauze. PW-10 does not specify that he took the blood stained plaster from point A in the site plan. Thus even though the blood stained plaster, mattress, baniyan and gauze of the deceased gave positive of blood group of human origin of ''A'' group, the same does not connect to the place of occurrence. Thus, there is no legally admissible evidence to show that the deceased stabbed at point A.
11. The appellant in his explanation u/s 313 Cr.P.C. has stated that on July 8, 1997 at about 10.00 or 11.00 PM his brother Kishan Pal was taking alcohol by sitting on the boundary of the first floor. Suddenly he fell down and his father heard the noise of Kishan Pal. Thereafter his family member rushed outside the house where they found Kishan Pal in injured condition and by some sharp edged object he received injuries on his abdomen and blood was oozing from the abdomen of Kishan Pal profusely. Thereafter his father and Somey, son of Kishan Pal took him to the hospital for treatment. He also reached JPN hospital however, the doctor declared him brought dead. He told to the police that Kishan Pal had fallen from the first floor under the influence of liquor and he received injuries due to fall and had died. The appellant does not admit his presence at the house at the relevant time and stated that he was at a distance of 1 or 11/2 km away from the house. According to the appellant SI Onkar Singh was inimical to him as he refused to supply small gas cylinders free of cost, demanded bribe and thus he implicated him in this false case. However, no suggestion has been given to PW-10 with regard to his demanding bribe or being inimical to him and thus falsely implicating the appellant.
12. Learned counsel for the State has stressed on the conduct of absconsion of the appellant. It may be noted that nowhere in his evidence SI Onkar Singh, the Investigating Officer stated that after the death of his brother, the appellant was not available. Though it is stated that on July 12, 1997 he along with Somey, Constable Sombir, HC Shahid Khan went to village Shorkha and on the pointing out of Somey, the appellant was arrested from his in-laws house. It is unnatural that despite living in the same house and his brother having expired, the appellant, after the incident, was present not at his house but at the house of his in-laws, however this can also be incidental. It was for the prosecution to prove that the appellant absconded after the incident. No witness has stated that the appellant was not available for arrest after the incident or what efforts were made to arrest him. Merely because the appellant was arrested after three days, the same would not lead to an automatic inference that the appellant absconded. Further, no question has been specifically put to the appellant on this circumstance though in answer to the last question, the appellant has stated that during the said four days he was present at home and on July 9, 1997 he went to Karkardooma Courts to appear as an accused in a case.
13. PW-10 also took into possession the shirt the appellant was wearing at the time of his arrest vide memo Ex. PW-2/D. As per the FSL report the said shirt was also found containing human blood of ''A'' group. In his statement u/s 313 Cr.P.C. the appellant has rendered no explanation as to how blood of group ''A'' was present on his shirt despite a specific question.
14. We also find that there is no delay in recording of the FIR. The incident took place at about 11.00 PM. No information was sent to the police station from the house as the father and son of the deceased immediately took him to the hospital. The first information to the police reached from the JPN hospital where the deceased was admitted at 1.05 AM on the intervening night of July 8-9, 1997. Police reached JPN hospital and sought to collect the MLC which the doctor stated would be available in the morning. Since no eye witness was available at that time they came back to the house of the deceased where the statement of the wife of the deceased was recorded. The rukka was sent at 5.00 AM and in view of the time taken by SI Onkar Singh to go from PS Kalyanpuri to JPN hospital, talk to the doctor and look for eye witnesses and come back and then record the statement of the eye witness, it cannot be said that sending the rukka at 5''o clock was a belated action.
15. Learned Trial Court relying upon
Shortly after the incident, the appellant was produced in the police station with his blood stained clothes and the toka. From the report of the serologist, it has been established that the said clothes and the toka contained human blood. No explanation has been giving as to how and under what circumstances, the clothes of the accused contained blood stains when he was apprehended shortly after the incident. The circumstances established by clear and clinching evidence only indicate that it was the appellant and no one else had committed the said murder. It will be appropriate to indicate here that corroboration is a rule of prudence. Evidentiary value of a deposition which is otherwise admissible is not just wiped out in the absence of corroboration. Even in the absence of corroboration, a deposition for its quality may be safely accepted to be correct. It will be unfortunate if on account of over emphasis for corroboration, a crime goes unpunished by not giving due weight, on uncorroborated evidence when such evidence is otherwise reliable. We, therefore, find no reason to interfere with conviction and sentence passed against the appellant and the appeal is accordingly dismissed. The appellant has been released on bail during the pendency of this appeal. He should be arrested forthwith to serve out the sentence.
16. Indubitably, if the eye witnesses have turned hostile and the circumstantial evidence so warrant accused can be held guilty. However, in dealing with a case of circumstantial evidence, the prosecution must establish facts from which the conclusion of guilt only can be drawn. To prove the guilt of an accused on the basis of circumstantial evidence, the prosecution has to traverse the distance between "may be" and "must be". In the present case the prosecution has been able to prove the following circumstances:
i. Recovery of the shirt of the appellant after 3 days;
ii. The shirt of the appellant was blood stained;
iii. The blood on the appellant''s shirt was of human origin, group ''A'' region which tallied with that of the deceased.
iv. The injuries on the deceased were not compatible to the explanation rendered by the appellant and the hostile witnesses as no pointed object was recovered at the spot.
17. The facts not proved by the prosecution are -
i) Absconsion.
ii) Presence of appellant in the house at the time of incident.
iii) Recovery of weapon of offence.
18. Considering the circumstances proved by the prosecution, it cannot be held that the chain of circumstances is consistent with no other hypothesis except that the appellant is guilty.
19. In view of the aforesaid discussion, the appellant is entitled to the benefit of doubt. Consequently, the appellant is acquitted of the charge u/s 302 IPC. His bail bond and surety bond are discharged.
20. The appeal is disposed of. Trial Court Record be sent back.
