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TMI Blog2002 (9) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 449 IPC, the High Court altered and reduced the sentence to imprisonment of life by making the sentence to run concurrently. The present appeal is against the same. 2. The case of the prosecution, as unfolded from the evidence, is that Dr. Ram Avtar Mudgal (PW-2), a dental practitioner at Shajapur, father of the two unfortunate victims; was residing in Government Quarters situated near Nai Sadak with his wife and two daughters, the eldest of whom by name Kumari Priti, aged about 22 years and the younger one, by name, Kumari Nidhi, aged about 17 years. The appellant was said to have been serving as Assistant Manager from 3.12.97 to 5.10.98 in M.P. Agro State Industry and Development Corporation (for short Agro Corporation ) at its office at Shajapur and was staying in Upkar Lodge situated in the vicinity of Nai Sadak. During the said period he was said to have become friendly with the eldest daughter, though he was familiar with both of them, and often they used to meet and sit behind Hanuman Temple situated on the outskirts of Shajapur city. During such time of visit, said to be almost daily, Priti Mudgal used to be with the appellant and he used to lie down keeping his he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dloi (PW-5), who lives in a house just opposite the District Hospital, was said to have seen the appellant coming out in the outer compound of the residential house at about 7.00 to 7.30 a.m. when he was returning from his newly constructed house where he had gone to do watering. The appellant, after committing the murders of both the girls, was said to have concealed the blood stained knife, weapon of murders and the blue jeans which he was said to have been wearing at the time of the incident, which was blood stained, in a ditch behind the bushes behind Hanuman Temple situated at the outskirts of Shajapur city. He was said to have deliberately created the scene of burglary and murder by keeping open the doors of almirah and stealing some currency notes worth ₹ 12,000/- for misguiding the Investigating Authorities and also fabricated false evidence for establishing an 'alibi' to prove his innocence by showing that at the same time he was absent and away at Dahod in Gujarat, accompanying his sister from Bhopal and said to be present on 8.4.99 at that place. The priest in Hanuman Temple by name Shri Rishikesh (PW-16) was examined to prove the visits of the appellant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (PW-10) as well as Jai Prakash Mandloi (PW-5) and Poonam Garg (PW-3) and placing reliance upon the evidence of Hanuman Temple priest PW-16, Rishikesh, and PW-27, Investigating Officer Samadhiya, found that the evidence was sufficient to establish the guilt of the appellant in respect of the charge of murder of two girls. The learned Trial Judge also held that during the time between 6 a.m. and 8 a.m. or so on 8.4.99 the appellant was present in Shajapur and between 6.15 a.m. and 6.30 a.m. or so, he was inside the house of Dr. Mudgal by committing house trespass and from the further circumstances proved from the recovery of the chain and the weapon for committing the offence and blood stained clothes, the guilt of the appellant stood substantiated beyond doubt by the overwhelming circumstantial evidence. The defence put forward by the appellant, including the one based on the plea of alibi, was rejected. Consequently, the Trial Court convicted the appellant and imposed sentences, as noticed earlier. The Division Bench of the High Court, while dealing with the Death Reference as well as the appeal filed by the accused, affirmed the conviction and modified only the death sentence int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, no interference is called for in this appeal. The circumstances such as the motive the love affair and failure in it, the fact that the accused was seen near the place of occurrence at the relevant point of time when the offence was said to have been committed, the failure to prove the alibi set up by the accused, the recovery of the chain from the accused and the further recovery of blood stained knife and clothes, pursuant to a disclosure statement under Section 27 of the Indian Evidence Act, were, according to the learned counsel, strong, relevant and important circumstances which go to establish the guilt of the appellant beyond any reasonable doubt, leaving no room for any other hypothesis, except the guilt excluding entirely the innocence of the accused and consequently, the appeal deserves to be rejected. Keeping in view the gruesome nature of the crime, the learned counsel submits that the accused is not entitled to any liberal or sympathetic consideration and that the High Court having already been more lenient and sympathetic in reducing the death sentence into one of life imprisonment, no further indulgence of any kind need be shown to the appellant. 6. The princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances said to have been shown against the appellant to establish his guilt: (a) Motive to commit the crime is that the accused failed in the love affair with Ms. Priti, daughter of P.W.2, and failure to marry her; (b) The accused, who had earlier served at Shajapur but transferred to and serving at Bhopal, was seen entering and leaving the house situated in the premises of District Hospital, Shajapur, where the two daughters of P.W.2 were found dead and was seen going towards the bus stand; (c) Absence of the accused in suspicious circumstances one day before the date of incident and three days after the incident from his Bhopal Office and the improbable and unproved defence of alibi taken that he was with his sister at Dahod in Gujarat State; (d) Seizure of the chain from the possession of the accused and the identification of the same by the mother and father of the deceased; (e) The disclosure statement given by the accused under Section 27 of the Indian Evidence Act and seizure of the knife and the blood stained clothes, pursuant to the same; (f) Presence of human blood in the chemical examination of the knife and blood stained clothes seized from the accused; and (g) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appropriate to take up for consideration this grievance for the appellant to ascertain the impact of the same on the very proof of existence of those circumstances. P.W.8, the senior Scientific Officer and Assistant Chemical Examiner, who inspected the scene of occurrence by about 11.30 a.m. on the very day of occurrence stated about his instructions to Shri P.C. Yadav, the Finger Print Officer, present at that time, to take the finger prints noticed during inspection. P.W. 27, the Investigating Officer, also spoke about the taking of fingerprints and foot prints (shoe marks). The fingerprints of the accused were also taken by P.W.27, yet evasive was his reply on the result of examination or course of action taken pursuant thereto. Neither any reports were marked nor Shri P.C. Yadav was examined. This would be a relevant and important piece of material to strengthen the case of either side about the alleged complicity of the accused. The lie detector test report of the appellant said to be item No. 45 in the list of documents submitted by the prosecution with the charge sheet was not also marked. Evidence collected by the prosecution regarding the journey of the appellant from Bh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... list containing details of calls made from the house of the deceased (their father P.W.2) to the house of the accused though shown as Item No. 63 in the list of documents submitted with the charge sheet was not got marked and placed in evidence. This could have cast serious doubts about the claims of PW-2 in respect of the alleged threat over telephone as well as the attitude of his and his own daughter towards the accused. All those aspects would really go to a great extent to justify the grievance sought to be made on behalf of the appellant, that the prosecution instead of impartially endeavouring to unravel the truth was bent upon persecuting the appellant to get him some how convicted, with a preconceived idea of his guilt. 13. 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. The accused, of course, denied the love affair. P.W.2, the father, also deposed that he was not aware of the same and when he checked up after the call from the father of the accused Hari Narayan Batham, who was all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 14. 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. This circumstance is sought to be substantiated by the evidence of P.W.4, an Advocate, residing nearby and P.W.5 residing in the vicinity of the Lodge opposite to the quarters of P.W.2 and that of the young girl of 14 years at the time of examination (P.W.3), who was said to have heard the calling bell sound in the house of P.W.2, followed by a cry of Priti `Mummy save, Mummy save' from the house of P.W.2. It is odd to believe that this girl neither tried to come out to see what it is nor sounded or alerted anyone in her own house about such a cry to enable them to respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation or marked the materials collected to prove that the appellant did not travel as claimed by him. Different and contradictory standard of appreciation of evidence seems to have been adopted to the detriment of the accused resulting in grave injustice. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for identification had iron wire in place of hook and it was not said to have been mixed with similar chains having such iron wire in place of hook. The criticism that, nothing much could be relied upon the so called identification cannot be lightly brushed aside. Even as to the recovery of the chain claimed from the appellant after his arrest on 12.4.99. at Shajapur, serious doubts surround recovery claim to render the said claim itself a suspect one. PW-9, the only panch witness, examined for the recovery, panchnama does not corroborate any recovery in his presence and the other witness to the recovery was not examined at all. It is hard to believe that the appellant was carrying the chain in his pocket from the date of occurrence till he met Inspector Gaur that the said Inspector who allegedly got the diary and a photo could not have noticed it at Bhopal and the same was carried by him even when he was brought to Shajapur till it was claimed to have been recorded by PW-27. Though, it was said to have been worn by the deceased Nidhi before her death, no bloodstains were found on the chain in spite of her neck being cut and she bled profusely from the neck. The non-examination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s may not by themselves point towards the guilt of the appellant, but taken together, lead to the only inevitable and inescapable conclusion that it is the appellant who committed the murder of the two daughters of PW-2 cannot, at any rate, be doubted. We have carefully considered this aspect of the matter also, despite the doubtful nature of the very circumstances themselves to be really facts established, but could not be persuaded to either agree with the learned counsel for the respondent or approve the findings of the courts below. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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