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Ashish_Batham_vs_State_of_Madhya_Pradesh_09092002_s020755COM841446.pdf

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  MANU/SC/0757/2002 Equivalent Citation: 2002(3)ACR2994(SC), AIR2002SC3206, 2003(1)ALT(Cri)1, 2002CriLJ4676, 2002(4)Crimes220(SC), 2002(2)JLJ373(SC),JT2002(6)SC593, 2003-2-LW(Crl)639, 2003(1)MPHT1, 2002(6)SCALE289, (2002)7SCC317, [2002]SUPP2SCR146, 2003(1)UC9 IN THE SUPREME COURT OF INDIA Appeal (crl.) 148 of 2002Decided On: 09.09.2002Appellants: Ashish BathamVs. Respondent: State of Madhya PradeshHon'ble Judges/Coram: Doraiswamy Raju and Shivaraj V. Patil, JJ. Counsels: For Appellant/Petitioner/Plaintiff: Sushil Kumar, Sr. Adv., Adolf Mathew and Sanjay  Jain, AdvsFor Respondents/Defendant: Siddartha Dave and Vibha Datta Makhija, Advs. Case Note:Indian Penal Code, 1860 - Sections 302 and 449--Double murder and housetrespass to commit murders--Conviction and death sentence by trial court--Life imprisonment by High Court--Whether sustainable?--Held, no --Twodaughters of P.W. 2 alleged to have been murdered by appellant--Becauseappellant was said to be in love with elder daughter--And P.W. 2 refused tomarry her with appellant because he was not Brahman by caste--Appellanttransferred to B prior to incident from place where incident took place--Relevant and important material not exhibited and proved--Some witnessescited but not examined--CID Officers conducting independent investigationand making report--But report withheld claiming privilege under Section173 (6), Cr. P.C.--Said Officers cited as witnesses even present in Court butnot examined --Serious doubts -- Circumstances relied upon not provingguilt of accused appellant -- Appellant acquitted.From the mere fact that the deceased Priti and the appellant were said tobe in love alone, it cannot be even remotely presumed that he should havebeen the cause for the murder unless it is substantiated by credibleevidence that the affair had broken beyond redemption. This part seems tohave been more surmised by Courts than substantiated by the prosecutionon any credible or legally acceptable evidence. Therefore, the motive factorseems to have no legal basis or sufficiently proved to constitute acircumstance to connect the appellant with the occurrence.The incident took place on 8.4.1999 at Shajapur from where appellant wastransferred to Bhopal prior to incident. It is necessary to advert to the claimof the appellant that on 7.4.1999, he left Bhopal accompanying his sisterD.W. 1, by the night train to Dahod in Gujarat as per the reservation of tickets made by him, which was also spoken to by D.W. 1 and D.W. 2 thatnot only the appellant travelled along with the D.W. 1, but he was very 07-09-2019 (Page 1 of 13) www.manupatra.com Central University of Bihar  much present at Dahod in Gujarat on 8.4.1999. Curiously, the courts belowchose to summarily reject the claim faulting the appellant for notexamining the railway officials ignoring the fact that in spite of inspectorGaur collecting the materials relating to his reservation and travel, neitherhe was examined nor the prosecution summoned those officials, who wereexamined during the course of investigation or marked the materialscollected to prove that the appellant did not travel as claimed by him.Different and contradictory standard of appreciation of evidence seems tohave been adopted to the detriment of the accused resulting in graveinjustice. In the absence of any clinching material brought on record by theprosecution to show that the appellant, did not, as a matter of fact, travelas per the reservations made by him along with his sister (D.W. 1), it wasnot permissible for the courts below merely to disbelieve D.W. 1 and D.W. 2for no valid reason and to surmise, most unjustifiably that the appellantwas clever enough to prepare the material for the defence of alibi, which,according to them, remained unsubstantiated. It appears that on agrievance of harassment and biased and partial investigation by the localpolice, complaint seems to have been made necessitating the C.I.D. officersto conduct an independent investigation and submit a report, but claimingprivilege and protection under Section 173 (6) of the Cr. P.C., not onlythose papers were removed from the case file, but no one associated withthe said investigation were even examined though they were cited aswitnesses and were also said to be present in Court on 7.12.2000.Strangely, the trial Judge while examining the accused under Section 313,Cr. P.C., was shown to have put questions about the conduct of thoseInvestigating Officers to the accused. The serious lapse in not pursuing theexamination of the fingerprints or bringing on record the results of fingerprints taken and making them available for consideration as well asthe omission to bring to the notice of the Court the result of the lie detectortest, to which the appellant was subjected, sufficiently create serioussuspicion and cast great shadow of doubt on the credibility and truthfulnessof the prosecution case.The identification test said to have been conducted by the tehsildar (P.W.8) and the so-called identification of the same by P.W. 2 and his wife of thechain said to have been worn by the deceased Nidhi does not carry the caseof the prosecution any further. It is stated that the said chain placed foridentification had iron wire in place of hook and it was not said to havebeen mixed with similar chains having such iron wire in place of hook. Thecriticism that nothing much could be relied upon the so-called identificationcannot be lightly brushed aside. Even as to the recovery of the chainclaimed from the appellant after his arrest on 12.4.1999, at Shajapur,serious doubts surround recovery claim to render the said claim itself asuspect one. P.W. 9, the only panch witness, examined for the recovery,panchanama does not corroborate any recovery in his presence and theother witness to the recovery was not examined at all. It is hard to believethat the appellant was carrying the chain in his pocket from the date of occurrence till he met inspector Gaur ; that the said inspector who allegedlygot the diary and a photo could not have noticed it at Bhopal and the samewas carried by him even when he was brought to Shajapur till it wasclaimed to have been recorded by P.W. 27.Considering also the number, nature and manner of injuries found inflictedon the body of the two girls as also the deposition of P.W. 18, the doctor,who conducted the post-mortem, serious doubts, could reasonably be said 07-09-2019 (Page 2 of 13) www.manupatra.com Central University of Bihar  to arise to engulf the credibility of the prosecution theory, as a whole, as towhether it was possible at all for a single person to inflict so many injurieswith one knife and within such a short-span of time left between P.W. 2and his wife leaving from the house and returning from their morning walk.It is also doubtful as to whether one person could have, without gettinghimself hurt, or receiving any form of injury during altercation, inretaliation from the two girls, inflicted so many injuries.Both the courts below have committed the serious error in presuming theguilt of the appellant first and try thereafter to find out one or other reasonto justify such a conclusion without an objective, independent andimpartial analysis or assessment of the materials, before recording a findingon the guilt of the appellant. Contradictory standards or yardstick and lackof coherence is found writ large in the manner of consideration adopted bythe courts below. In the case of evaluation of the evidence, it could be seenso patently that insignificant things have been unduly magnified andserious lapses and withholding of vital materials and relevant witnesseshave been unjustifiably glossed over despite the fact that the production of those materials would have really helped to fix the guilt or otherwise of theappellant concretely and bring about the real truth about the matter. TheCourt finds, on going through the materials on record and the judgments of the courts below, the case before it to be an ideal and illustrative one to justify the apprehensions often reiterated by the Court that the mind wasapt to take pleasure in adopting the circumstances to one or the othercircumstances without straining a little to supply even the links foundwanting to render them complete. The fact that at a busy place like the onein and nearby the hospital area, a thickly residential with surroundings asspoken to by the witnesses, such murder of two girls could be said to havebeen executed without attracting the attention of anyone nearby or regularpassers-by at that point of time in the area also seriously improbabilisesthe prosecution version that the appellant alone was and could have beenthe culprit. The doubtful and suspect nature of the evidence sought to berelied upon to substantiate the circumstances in this case themselves sufferfrom serious infirmities and lack of legal credibilities to merit acceptance inthe hands of courts of law, since the very circumstances sought to be reliedupon themselves stood seriously undermined, the existence or proof of oneor more of stray circumstances in the chain, break and dislocate the link insuch 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 constituteor provide the necessary basis to legitimately presume the guilt of theappellant. The appellant seems to have been roped in merely on suspicionand the story of the prosecution built on the materials placed seems to beneither 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 orapproval having regard to the glaring infirmities and illegalities vitiatingthem and patent errors apparent on the face of the record, resulting inserious and grave miscarriage of justice to the appellant.JUDGMENTDoraiswamy Raju, J.1. The above appeal has been filed by the appellant who was convicted by thelearned Sessions Judge, Shajapur, Madhya Pradesh, for the offence under Section 07-09-2019 (Page 3 of 13) www.manupatra.com Central University of Bihar  302 IPC (on two counts) on the ground that he killed Ms. Nidhi and Ms. Priti, thedaughters of Dr. Ram Avtar Mudgal (PW-2), and sentenced to death and imposition of life imprisonment for the offence under Section 449 IPC for committing housetrespass to commit the said murders. The appeal filed by the appellant herein beforethe High Court in Criminal Appeal No. 763 of 2001 and the reference made to theHigh Court for confirmation in death reference No. 1 of 2001 came to be heardtogether by a Division Bench of the Madhya Pradesh High Court, Indore Bench, andwhile sustaining the conviction under Sections 302 IPC and 449 IPC, the High Courtaltered and reduced the sentence to imprisonment of life by making the sentence torun concurrently. The present appeal is against the same. 2. The case of the prosecution, as unfolded from the evidence, is that Dr. Ram AvtarMudgal (PW-2), a dental practitioner at Shajapur, father of the two unfortunatevictims; was residing in Government Quarters situated near Nai Sadak with his wifeand two daughters, the eldest of whom by name Kumari Priti, aged about 22 yearsand the younger one, by name, Kumari Nidhi, aged about 17 years. The appellantwas 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 ) atits office at Shajapur and was staying in Upkar Lodge situated in the vicinity of NaiSadak. During the said period he was said to have become friendly with the eldestdaughter, though he was familiar with both of them, and often they used to meet andsit behind Hanuman Temple situated on the outskirts of Shajapur city. During suchtime of visit, said to be almost daily, Priti Mudgal used to be with the appellant andhe used to lie down keeping his head on her lap and chat with her when the youngerMs. Nidhi used to sit at some distance. The appellant used to give some gifts to thegirls. Thereafter, the appellant came to be transferred as Assistant Manager to BhopalOffice of the Agro Corporation and about a month or so prior to the day of occurrencethe father of the appellant Shri Hari Narayan Batham was said to have telephoned toDr. Ram Avtar Mudgal (PW-2) from Bhopal and told him that there was an affairbetween his son, the appellant, and Priti, his daughter, and, therefore, he should visithis house at Bhopal for talking about their marriage to which the father of the girlswas said to have informed that he was against the idea of marrying Priti to a boy whowas not Brahmin by caste, to which they belong and that was also the view of hisdaughter Priti. It is also the case of the prosecution that the father of the appellanttold PW-2 that in case of refusal he would be required to repent and that was thesame tone of reply given by PW-2 when called up over phone once again, thereafter.On the ill-fated morning of 8.4.99, it is said that the Dr. Ram Avtar Mudgal (PW-2)and his wife left their house at about 6.15 a.m. or so for a morning walk and whenthey returned back home by about 7.00 to 7.15 a.m., the outer door was open and anewspaper 'Nai Duniya' was lying in the verandah and on entry into the house, theyfound the younger daughter Ms. Nidhi dead with injuries at the dental clinic room andthe eldest daughter Ms. Priti in the toilet with injuries, almost in a sitting position.The further case of the prosecution is that during the time between 6 a.m. and 8 a.m.or so on that day the appellant was present in Shajapur and between 6.15 a.m. and6.30 a.m. or so he was inside the house of Dr. Ram Avtar Mudgal (PW-2) and it washe who killed the daughters to wreak vengeance due to failure of love. PW-4,Advocate by name Shri Narain Prasad Pande, was said to have seen the appellantnear the residential house of Dr. Ram Avtar Mudgal at about 6.15 a.m. when he wasgoing towards bus stand for catching the bus to go to Indore for attending the HighCourt work. PW-3, Ms. Poonam Garg, a neighbour, was said to have heard the noiseof bell which was being pressed at the residence of Dr. Mudgal at about 6.15 a.m. orso followed in a few minutes by the cries 'Mummy save, Mummy save'. Jai PrakashMandloi (PW-5), who lives in a house just opposite the District Hospital, was said tohave seen the appellant coming out in the outer compound of the residential house atabout 7.00 to 7.30 a.m. when he was returning from his newly constructed house 07-09-2019 (Page 4 of 13) www.manupatra.com Central University of Bihar
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