Paragraph numbers below are the court’s original numbering, recovered from the source text.
13. In addition to above, the High Court noticed that neither younger sister of Madhuri (PW4) nor neighbours or members of the locality were produced as witnesses to lend assurance to the prosecution story. Further, the original motive for the crime was a dispute arising from keeping of jewellery by the deceased with her sister, whereas the statement of prosecution witnesses established that the jewellery had been returned much before the incident, therefore, there existed no cogent motive for the crime. In paragraph 40 of the judgment, the High Court observed that the recovery of blood-stained clothes and stones was doubtful because the seizure witness Shiv Kumar Rathore (PW6) had categorically denied seizure of those articles in his presence and had stated that his signatures were obtained at the police station. Moreover, the evidence recorded revealed that the accused was arrested in the night of 01.02.2010 itself. The High Court also noticed that the FSL report Ex.P-35 could not confirm the blood group on the clothes as to match it with the deceased. Otherwise also, once the seizure of articles became doubtful and as per the statement of PW4 the accused had washed off those clothes and had kept them in the house to dry, the entire prosecution story in respect of seizure of blood-stained clothes from the hut was rendered doubtful. Taking a conspectus of the circumstances highlighted above, the High Court opined that the case set up by the prosecution appeared extremely unnatural and hard to believe. The High Court therefore discarded the circumstance of seizure of stones and blood-stained clothes from the hut of the accused and upon finding that there were glaring contradictions in the prosecution case, irreconcilable in nature, gave the benefit of doubt to the accused.
14. We have heard learned counsel for the parties and have perused the record. Submissions on behalf of the Appellant
15. The learned counsel for the appellant submitted that this is a case where a daughter has deposed against her own father. The testimony of PW-4 is straightforward and coupled with other evidences establishes beyond doubt the following: (i) that there used to be fights/quarrels between the deceased and the accused; (ii) that on the fateful day, there was a quarrel between the two; and (iii) that soon after the quarrel the deceased was taken on a bicycle by the appellant to the field and shortly thereafter near the hut/field of the accused, on a railway track, the deceased was found in a seriously injured state suggesting that she was badly assaulted. STATE OF MADHYA PRADESH v. PHOOLCHAND RATHORE [MANOJ MISRA, J.]
16. It was argued that the High Court wrongly discarded the entire statement of PW4 upon noticing that she was not truthful on certain aspects, namely, — the accused had returned alone from the field wearing blood-stained clothes, changed his clothes in the house, washed them and made an extra judicial confession to PW4. It was contended that falsus in uno, falsus in omnibus doctrine is not applicable in India therefore, the High Court ought to have severed the unreliable part from the remaining part, noticed above, and examine whether the remaining part on its own could sustain conviction, particularly, when there was no explanation forthcoming from the accused as to where he was during that period and how his wife sustained those injuries. It was argued that the evidence that the accused took the deceased on cycle to the field and shortly thereafter, near the field, in between railway tracks, the deceased was found with multiple injuries, by itself, in absence of any explanation from the accused as to when he parted company of the deceased, was sufficient to record conviction.
17. In addition to the above, the learned counsel for the appellant submitted that it is a case where the deceased had died at around 2000 hours on 01.02.2010, the FIR was promptly lodged at 2130 hours narrating the circumstances in which the incident occurred and those circumstances have been confirmed by the testimony of prosecution witnesses therefore, even if subsequent story of confession/recovery is discarded, the proven circumstances by itself form a chain so complete as to sustain conviction of the accused as justifiably recorded by the trial court. Consequently, it was prayed, the judgment and order of the High Court be set aside and the Trial Court’s judgment and order be restored. Submissions on behalf of the respondent -accused
18. Per contra, the learned counsel for the respondent submitted that the view taken by the High Court is a plausible view and is not perverse as to warrant an interference under Article 136 of the Constitution of India. It was urged that the High Court is a final court of fact and the view of the High Court is not in ignorance of any evidence or by misreading any piece of evidence. Its view being a plausible view, based on analysis of the evidence, no interference with it is called for, particularly when the case rests on circumstantial evidence.
19. It was also urged that the testimony of PW4, when read as a whole, does not inspire confidence as it is found unreliable on several aspects therefore, being the sole witness of the circumstance that the deceased was taken from home by the accused, could not on its own form the basis of conviction. More so, when the original motive stood not proved giving rise to possibility of false implication on account of property dispute with informant (PW2) as would be clear from the statement of PW8, which possibility gains support from the statement of the Investigating Officer (PW11) that he had known the informant (PW2) from before. More so, when a false arrest/disclosure and recovery was set up. It was also argued that the public witnesses examined by the prosecution have disclosed about the arrest of the accused in the night itself whereas, the police witnesses have tried to disclose his arrest on the next day leaving them opportunity to plan a case against him. For all the reasons above, it was prayed, the view taken by the High Court is a plausible view, not liable to be interfered. Discussion and Analysis
20. Having considered the submissions and perused the record, before we proceed further, it would be useful for us to notice the law as to when it would be appropriate for this Court, exercising its power under Article 136 of the Constitution of India, to reverse an acquittal into a conviction. Normally, the Court is reluctant to interfere with an order of acquittal. But when it appears that the High Court has on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case and ignoring some of the most vital facts, acquitted the respondent and the order of acquittal passed by the High Court has resulted in a grave and substantial miscarriage of justice, extraordinary jurisdiction under Article 136 of the Constitution of India may rightfully be exercised (See: State of U.P. v. Sahai & Others1).
21. In State of M.P. & Others v. Paltan Mallah & Others2, reiterating the same view it was observed: “8. … This being an appeal against acquittal, this Court would be slow in interfering with the findings of the High Court, unless there is perverse appreciation of the evidence which resulted in serious miscarriage of justice and if the High Court has taken a plausible view this Court would not be justified in interfering with the acquittal passed in favour of the accused and if two views are possible and the High Court had chosen one view which is just 1 (1982) 1 SCC 352 2 (2005) 3 SCC 169 STATE OF MADHYA PRADESH v. PHOOLCHAND RATHORE [MANOJ MISRA, J.] and reasonable, then also this Court would be reluctant to interfere with the judgment of the High Court.”
22. In a recent decision rendered by this Court in Basheera Begam v. Mohd. Ibrahim & Others3, it was observed: “190. … Reversal of a judgment and order of conviction and acquittal of the accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the court might reverse an order of acquittal if the court finds that no person properly instructed in law could have upon analysis of the evidence on record found the accused to be “not guilty”. …”
23. Seen in light of the decisions above, we would examine whether there is any perversity in the view taken by the High Court while converting conviction into an acquittal. Admittedly, this is a case based on circumstantial evidence. There is no direct eye witness account of the murder. The body of the deceased was not found within the confines of her house but in the open on a railway track. In such circumstances to sustain a conviction the court would have to consider — (i) whether the circumstances relied by the prosecution have been proved beyond reasonable doubt; (ii) whether those circumstances are of a definite tendency unerringly pointing towards the guilt of the accused; (iii) whether those circumstances taken cumulatively form a chain so far complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused; (iv) whether they are consistent only with the hypothesis of the accused being guilty; and (v) whether they exclude every possible hypothesis except the one to be proved.
24. We shall now examine as to what were the circumstances relied by the prosecution and as to how they were sought to be proved. Additionally, we shall examine as to how the High Court dealt with the evidence on those circumstances with a view to find out whether there is any perversity in its view/ reasoning warranting an interference. In the instant case, the prosecution relied on the following circumstances: (a) Motive; (b) Disclosure Statement and Recovery; (c) Extra Judicial Confession; and (d) Accused taking the deceased with him and soon thereafter the deceased was found in an injured state. We shall examine each of these circumstances, separately, herein below— 3 (2020) 11 SCC 174 (i) Motive: According to the prosecution, the appellant and the deceased used to quarrel because the deceased had kept her jewellery with her sister. However, the above reason for the quarrel was not found proved because the prosecution evidence led revealed that the jewellery had already been returned back much before the date of the incident. Therefore, to prove motive, during trial, prosecution developed another story, which is, that the appellant desired his wife to claim a share in her ancestral property which resulted in quarrels. This motive neither appealed to the High Court nor to us because, firstly, it was an improvement in the prosecution story; secondly, not much evidence was laid to substantiate the same; and, thirdly, if the wife is killed how could her husband derive interest in the property. Thus, in our view, the prosecution failed to prove the motive set out by it. No doubt absence of motive by itself may not be sufficient to dislodge the prosecution case if the other proven circumstances could form a chain so complete as to indicate that in all human probability it is the accused and no one else who committed the crime but, in a case based on circumstantial evidence, motive plays an important part. Because, not only it makes the story believable but also helps the court in fortifying an inference which may be drawn against the accused from other attending circumstances. (ii) Disclosure Statement and Recovery The prosecution placed heavy reliance on recovery of blood-stained clothes and stones from the hut of the accused on the basis of disclosure made by him. The disclosure as well as recovery has been refuted by the accused as also by PW-6 who is a witness to it. The High Court has noticed that there is material contradiction in the statement of prosecution witnesses with regard to the time when the accused was arrested. The public witnesses examined by the prosecution indicated that the accused was arrested in the night of 01.02.2010 itself, whereas the police witnesses/ documents disclosed his arrest on 02.02.2010 at 1240 hours STATE OF MADHYA PRADESH v. PHOOLCHAND RATHORE [MANOJ MISRA, J.] at Seoni Trisection. What may be interesting is the time sequence of arrest, recording of disclosure statement and preparing of recovery memos. According to police witnesses and papers, the arrest was effected on 02.02.2010 at 1240 hours; the disclosure statement was recorded on 02.02.2010 at 1300 hours and recovery was effected on 02.02.2010 at 1400 hours. The arrest of the accused was shown from a place known as Seoni Trisection whereas the public witnesses including PW4 stated that the accused was arrested in the night of 01.02.2010 from a Nala (drain) where he was hiding with an axe. The disclosure statement, as per the memorandum (Ex.P-9), was prepared at Seoni Trisection and witnessed by PW6; the recovery memo (Ex.P-10), as per memorandum, was prepared at Phoolchand’s (accused’s) hut near railway line in Model village at 1400 hours and the same too, was witnessed by PW6. Interestingly, PW6 is the only public witness of disclosure and recovery to be examined and he has not supported the prosecution case. What is even more interesting is that the other seizure memorandum prepared in respect of lifting blood-stained saree, gravel, slippers etc. from near the railway line, that is the spot from where the deceased was lifted, was prepared at 1400 hours on 02.02.2010. How could it be possible that the police prepared two memorandums at the same time at different places. The answer to it lies in the testimony of PW6, a witness to both, who stated that he was made to sign the papers at the police station. Meaning thereby that all papers were prepared at one go rendering the entire exercise of disclosure and consequential discovery/recovery doubtful. Not only that, there appears no cogent reason for the accused to carry stones from the spot and hide them in his hut while leaving several blood- stained stones near the railway line. In such circumstances, it appears to us that those stones were picked from the spot near the railway track to show recovery from the hut. Insofar as the recovery of blood-stained clothes is concerned, in addition to the above reasons, the same is doubtful also because of the statement of PW4 (Madhuri) that her father on return had washed those clothes and had spread them to dry over the cattle shed in the house therefore, how could they be recovered from the hut. It be noted that the house is shown located in the village, whereas the hut is shown in the field at quite a distance from the house. For all the reasons above, the High Court was justified in doubting the recovery of blood-stained clothes etc. at the instance of the accused from the hut and on the basis of a disclosure statement made by him. (iii) Extra Judicial Confession to PW4 The alleged extra judicial confession made by the accused to PW4 was neither disclosed in the FIR nor in the previous statement of PW4 made during investigation. PW4 was confronted with that omission during her deposition in court. That apart, the testimony of PW4 with regard to the accused returning home, making extra judicial confession, changing clothes, washing blood-stained clothes and spreading them to dry has been found unreliable and shaky by the High Court for cogent reasons extracted above, which do not appear perverse as to warrant an interference. Thus, the circumstance of extra judicial confession is also not proved beyond doubt. (iv) Accused taking the deceased from home on a bicycle In respect of this circumstance, the only evidence is of PW4 i.e. the daughter of the accused and the deceased. Her evidence has been doubted by the High Court, inter alia, on the ground that the two witnesses Ganga Bai (PW1) and Sushila (PW12) have not supported her statement. PW4 stated that when she followed her parents who were going on a bicycle she met Sushila (PW12) and she narrated the incident to her. PW12, who appeared as a witness, denied having met PW4 on that fateful day. Similarly, Ganga Bai (PW1) who were to corroborate PW4 on that aspect was declared hostile. Even, if we assume that the testimony of those two witnesses would not damage the testimony of PW4 as they may have their own reasons for not supporting the prosecution case yet, when we peruse the detailed reasons recorded by the High Court in its judgment (i.e. STATE OF MADHYA PRADESH v. PHOOLCHAND RATHORE [MANOJ MISRA, J.] paragraphs 31 to 35 thereof) to hold that the testimony of PW4 is not of a stellar quality as to merit conviction solely on its basis, we find no such perversity in the High Court’s conclusion as may warrant a reversal of acquittal into a conviction in exercise of jurisdiction under Article 136 of the Constitution. The argument that doctrine falsus in uno, falsus in omnibus is not applicable in India hence PW4’s testimony, even if not acceptable on certain aspects, could be relied to prove other circumstances, is not acceptable because the High Court, on basis of analysis of the entire evidence, has discarded the witness as not reliable while observing: “that her statement is full of embellishments, exaggerations and material discrepancies and, therefore, we find ourselves unable to pick out the grain of truth from the falsehood of her statement.’’ Further, even if we accept PW4’s testimony that the accused, on that fateful day, took the deceased on a bicycle to the fields that by itself is not conclusive to indicate that he took her to kill her; because, admittedly, the accused held agricultural holding and it is quite possible that he may have taken his wife to assist him in the agricultural operations. It is common practice in villages for ladies to help their menfolk in agricultural operations. The allegation that while taking her a declaration was made that she would be killed does not inspire our confidence for the reason that the motive set out by the prosecution for such a quarrel has not been proved. Otherwise also, quarrels and disputes between husband and wife are every day phenomena and not such an event which may create a strong suspicion of an impending crime much less murder. More so, where, as in the present case, marriage is subsisting since long with children out of the wedlock. Further, this circumstance by itself is not so clinching as to conclusively point towards the guilt of the appellant by ruling out possibility of a third-party hand in the murder. In this regard, it be noticed that, as per the prosecution case, the deceased was found injured at around 2000 hours in an open area at some distance from the hut of the accused. At what time the accused had taken the deceased on his bicycle is not clear from the testimony of PW4 though, from the first part of her testimony, it appears that the accused and the deceased were noticed quarrelling with each other at about 1630 hours and soon thereafter, the appellant took the deceased on his cycle. If, from that, we put the event of taking the deceased on bicycle at about 1630 hours there is still quite a large time-gap between 1630 hours and 2000 hours for other intervening factors to operate. In light thereof, considering that the place of occurrence was an open place and the other circumstances (i.e. motive, disclosure, recovery and extra judicial confession) were not proved beyond reasonable doubt, shifting the burden on the accused to explain the circumstances in which the deceased sustained injuries, or to demonstrate that he parted company of the deceased, would not be justified in the facts of the case.
25. For all the reasons above, if the High Court has extended the benefit of doubt to the accused, its view being a plausible view, in our opinion, does not call for any interference.
26. The appeals are, therefore, dismissed. Ankit Gyan Appeals dismissed. (Assisted by : Kavya Agarwal and Mayank Batra, LCRAs) STATE OF MADHYA PRADESH v. PHOOLCHAND RATHORE [MANOJ MISRA, J.]