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CASE NO.:

Appeal (crl.) 148 of 2002

PETITIONER:

ASHISH BATHAM

Vs.

RESPONDENT:

STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 09/09/2002

BENCH:

Doraiswamy Raju & Shivaraj V. Patil.

JUDGMENT:

D. RAJU, J.

The above appeal has been filed by the appellant who was convicted by

the learned Sessions Judge, Shajapur, Madhya Pradesh, for the offence under

Section 302 IPC (on two counts) on the ground that he killed Ms. Nidhi and Ms.

Priti, the daughters 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 house trespass to commit the said murders. The appeal filed by the

appellant herein before the High Court in Criminal Appeal No.763 of 2001 and

the reference made to the High Court for confirmation in death reference No.1 of

2001 came to be heard together by a Division Bench of the Madhya Pradesh

High Court, Indore Bench, and while sustaining the conviction under Sections

302 IPC and 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.

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 head on her lap and chat with her when the younger

Ms. Nidhi used to sit at some distance. The appellant used to give some gifts to

the girls. Thereafter, the appellant came to be transferred as Assistant Manager

to Bhopal Office of the Agro Corporation and about a month or so prior to the day

of occurrence the father of the appellant Shri Hari Narayn Batham was said to

have telephoned to Dr. Ram Avtar Mudgal (PW-2) from Bhopal and told him that

there was an affair between his son, the appellant, and Priti, his daughter, and,

therefore, he should visit his house at Bhopal for talking about their marriage to

which the father of the girls was said to have informed that he was against the

idea of marrying Priti to a boy who was not Brahmin by caste, to which they

belong and that was also the view of his daughter Priti. It is also the case of the

prosecution that the father of the appellant told PW-2 that in case of refusal he

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would be required to repent and that was the same 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 when they returned back

home by about 7.00 to 7.15 a.m., the outer door was open and a newspaper `Nai

Duniya' was lying in the verandah and on entry into the house, they found the

younger daughter Ms. Nidhi dead with injuries at the dental clinic room and the

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.

and 6.30 a.m. or so he was inside the house of Dr. Ram Avtar Mudgal (PW-2)

and it was he 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

appellant near the residential house of Dr. Ram Avtar Mudgal at about 6.15 a.m.

when he was going towards bus stand for catching the bus to go to Indore for

attending the High Court work. PW-3, Ms. Poonam Garg, a neighbour, was said

to have heard the noise of bell which was being pressed at the residence of Dr.

Mudgal at about 6.15 a.m. or so followed in a few minutes by the cries `Mummy

save, Mummy save'. Jai Prakash Mandloi (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 jean

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 Rs.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 the temple in the

company of the two girls. Immediately on his return to the house, Dr. Mudgal

seems to have informed Dr. Rathore and Dr. Sisodia on telephone and Dr.

Sisodia alongwith Dr. Gupta seems to have reached the place and thereafter Dr.

Gupta seems to have telephoned the Police Control Room giving information

about the occurrence. PW-26, an ASI, who received the information, informed

PW-27, B.P. Samadhiya, City Police Inspector, about the incident. PW-27 on his

arrival on the spot was told by Dr. Mudgal (PW-2) about the occurrence and the

same was registered as 'First Information Report' (Ex.P-11) and the death of the

two girls was recorded as information marked as Ex.P-12 by sending the raiding

officer to the Judicial Magistrate and Departmental Sentencing Authority and the

investigation was said to have been started. It is stated that during investigation

Police Inspector, M.S.Gaur, brought the appellant from Bhopal and produced him

before the City Police Inspector, who arrested him. Dr. Mudgal (PW-2) was also

stated to have given on 21.4.1999 the list of articles said to be missing from

place of incidence to PW-27 marked as Ex.P-14. After the arrest and personal

search of the appellant, it was stated that a purse, in which one chain and

Rs.1223/- were found, was seized and panchnama marked as Ex.P-22. In the

Identification Parade held on 22.4.1999 by Shri R.K. Sharma, Tehsildar (PW-14),

Dr Ram Avtar Mudgal (PW-2) and his wife were said to have identified the chain,

noticed above, to be the chain missing from the neck of the younger daughter

Ms. Nidhi. On a disclosure statement said to have been made on 23.4.1999

under Section 27 of the Evidence Act, the appellant was said to have produced

the knife and blood stained clothes from the place where they were said to have

been hidden vide Ex.P-23. The knife and blood stained clothes were said to

have been seized under seizure panchnama Ex.P-24. The appellant's specimen

handwritings and signatures were also said to have been obtained and seized.

The appellant was charged under Section 302 IPC separately for the

murder of two girls, in addition to being charged under Section 449 IPC. The

appellant denied the charges. After trial, in which witnesses were examined and

documents were marked, the learned Trial Judge accepted the evidence of

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Narain Prasad Pande (PW-4), Rajmal Bhimawat (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 into one of life imprisonment.

Shri Sushil Kumar, learned senior counsel for the appellant, and Shri

Sidhartha Dave, learned counsel for the respondent-State, were heard at length.

The learned counsel took us in detail into the relevant evidence and all the

materials on record to substantiate their respective stand. The learned counsel

for the appellant contended that being a case depending upon merely

circumstantial evidence, the prosecution miserably failed to prove the

circumstances satisfactorily to complete the chain of circumstances so as to

establish conclusively the guilt of the accused in this case in a manner that rule

out every hypothesis inconsistent with his innocence. According to the learned

counsel, apart from being unable to do so, the missing links also were liberally

filled upon up by manipulated materials and baseless surmises, resulting in grave

injustice. The serious charge against the prosecution by the learned counsel

was that it suppressed and withheld, relevant and most vital materials gathered

by them in the course of investigation and withheld also important witness not

only cited but called for and present in Court from being examined in an attempt

to avoid the real facts and truth of the episode coming before Court for its

consideration. The grievance projected for and on behalf of the appellant is that

on mere surmise and suspicion the appellant has been targeted and the case

tailored to somehow get the appellant convicted and the Courts below either

overlooked or glossed over serious pitfalls and grave infirmities in the case of the

prosecution and the evidence let in to prove its case, by adopting a superficial

approach, not befitting the seriousness of the crime alleged. Despite the

concurring nature of the verdict returned by the Courts below, it was contended

for the appellant that the conclusions were manifestly erroneous and arrived at

without a complete and comprehensive appreciation of all relevant aspects of the

case in their proper perspective and consequently are liable to be set aside.

Per contra, the learned counsel for the respondent also strenuously

contended that the prosecution successfully proved its case by placing on record

overwhelming circumstantial evidence, which, according to the learned counsel,

rightly found favour of acceptance with both the Trial Court as well as the High

Court and, therefore, 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.

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The principles, which should guide and weigh with the Courts

administering criminal justice in dealing with a case based on circumstantial

evidence, have been succinctly laid down as early as in 1952 and candidly

reiterated time and again, but yet it has become necessary to advert to the same,

once again in this case having regard to the turn of events and the manner

consideration undertaken, in this case by the courts below. In Hanumant

Govind Nargundkar & Anr. Vs. State of Madhya Pradesh [AIR 1952 SC 343],

it has been held as follows:-

"In dealing with circumstantial evidence the rules

specially applicable to such evidence must be borne

in mind. In such cases there is always the danger

that conjecture or suspicion may take the place of

legal proof and therefore, it is right to recall the

warning addressed by Baron Alderson to the jury in

Reg. V. Hodge, (1838) 2 Lewin 227) where he said:

"The mind was apt to take a pleasure in

adapting circumstances to one another,

and even in straining them a little, if need

be, to force them to form parts of one

connected whole; and the more ingenious

the mind of the individual, the more likely

was it, considering such matters, to

overreach and mislead itself, to supply

some little link that is wanting to take for

granted some fact consistent with its

previous theories and necessary to render

them complete."

It is well to remember that in cases where the

evidence is of a circumstantial nature, the

circumstances from which the conclusion of guilt is to

be drawn should in first instance be fully established,

and all the facts so established should be consistent

only with the hypothesis of the guilt of the accused.

Again, the circumstances should be of a conclusive

nature and tendency and they should be such as to

exclude every hypothesis but the one proposed to be

proved. In other words, there must be a chain of

evidence so far complete as not to leave any

reasonable ground for a conclusion consistent with

the innocence of the accused and it must be such as

to show that within all human probability the act must

have been done by the accused."

These principles were needed to be restated even as late as in the decision

reported in Sudama Pandey & Ors. Vs. State of Bihar [(2002) 1 SCC 679] and

Subhash Chand Vs. State of Rajasthan [(2002) 1 SCC 702].

The learned Trial Judge adverted to the following circumstances 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

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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) The conduct of the accused, non-disclosure of the facts in his knowledge

and giving false explanation.

The High Court also, though chosen to refer to the very same, had modulated

and multiplied it by adverting to the various facets of the same.

Realities or Truth apart, the fundamental and basic presumption in the

administration of criminal law and justice delivery system is the innocence of

the alleged accused and till the charges are proved beyond reasonable doubt

on the basis of clear, cogent, credible or unimpeachable evidence, the

question of indicting or punishing an accused does not arise, merely carried

away by heinous nature of the crime or the gruesome manner in which it was

found to have been committed. Mere suspicion, however, strong or probable

it may be is no effective substitute for the legal proof required to substantiate

the charge of commission of a crime and grave the charge is greater should

be the standard of proof required. Courts dealing with criminal cases at least

should constantly remember that there is a long mental distance between

`may be true' and `must be true' and this basic and golden rule only helps to

maintain the vital distinction between `conjectures' and `sure conclusions' to

be arrived at on the touch stone of a dispassionate judicial scrutiny based

upon a complete and comprehensive appreciation of all features of the case

as well as quality and credibility of the evidence brought on record.

So far as the case on hand is concerned, it becomes necessary even at

the threshold to find out whether the Courts below really endeavoured to find

out that each and every incriminating circumstance has been clearly

established by reliable and clinching evidence. In a case like the one before

us entirely resting on circumstantial evidence and the defence plea that

prosecution had withheld and suppressed documents, witnesses and

materials it was obligatory for the Courts below also to ensure whether the

prosecution has come up before the Court with the whole and unvarnished

truth or merely presented a perfunctory and tailored case to suit its game plan

of somehow securing a conviction, resulting in grave miscarriage of justice.

Before going into the circumstances pleaded and analysing the materials on

record to find out whether they stood sufficiently or properly established in this

case, it would be 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 Bhopal to Dahod and materials to evidence actual journey with his sister

in its possession was also not marked though shown in the list of documents

with the charge sheet. Ironically, courts below tried to blame the accused for

not getting official witnesses examined in this regard for the defence, in spite

of his having examined his sister (D.W.1) and a tenant (D.W.2) in the house

at Dahod where D.W.1 also lived. Withholding by the prosecution of the

report the materials gathered and conclusions of the CID investigation in the

very case and claiming privilege for its production, which came to be upheld

also on 27.11.1999 by the Trial Court resulting in the exclusion of those

materials from the case and denial of even the copy of the said report seems

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to suggest a concerted effort on the part of the prosecution to mask the real

truth from the Court. The CID officers, who conducted the independent

investigation and submitted report though cited as witnesses and present in

Court on 7.12.2000 were, for reasons best known, not examined. Inspector

M.C. Gaur, who conducted the investigation in Bhopal and gathered materials

relating to the trip of the appellant to Dahod, stated to have recovered a diary

and photograph and brought him from Bhopal to Shajapur on 11.4.1999,

though cited as witness No.19 in the list submitted with the charge sheet, was

not examined. He was the best and really vital witness, who could speak for

his absence on account of being away at Dahod as well as regarding the

search of his person before the alleged search and seizure of the purse and

chain on 12.4.1999 at Shajapur by P.W.27 and as to whether the appellant

was really absconding or evading being apprehended as projected by the

prosecution, in spite of the real fact that even without any arrest warrant he

accompanied Inspector Gaur to Shajapur without any demur. Witnesses,

natural and independent, expected to be in and around the place of

occurrence at the relevant time such as sweepers, milkman, Newspaper man

(P.W.2 admits newspaper having been lying at the entrance when he

returned) whose statements were recorded and cited as witness were but

given up and not examined at all. The list of Telephone calls STD, said to

be on the basis of computer sheet relating to Telephone No.547396 of Bhopal

alone seems to have been got marked as Ex.P.16 through P.W.16 but for

reasons best known such 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.

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 alleged to have asked for the marriage of the accused with

the deceased girl Priti, the girl also stated to have denied any such

relationship with the accused. In that view of the matter, the evidence of

P.W.16, the Priest of Hanuman Temple, and the telephone calls were mainly

relied upon to arrive at the findings in this regard, taken together also with a

stray information given the observation by the sister of the accused, D.W.1. A

careful reading of the evidence of P.W.16 would show that he is a mere

tuitored witness and not speaking the truth as to what really happened, if only

the version of P.W.2 as to total ignorance of any such affair with his daughter

and the blunt denial by his daughter Priti as spoken by him is to be believed.

Ex.P.16, the telephone bill pertaining to Telephone No. 547396 located in

Bhopal, not merely indicates the call from the said telephone to the residential

telephone of P.W.2 on that day or thereafter, but the calls often made from

January onwards, at times of very long duration at odd hours in the night.

This taken together with the grievance projected on behalf of the appellant

about non-marking of the similar list of telephone STD calls from the

telephone of P.W.2 indicating as it is claimed of such calls of longer duration

to the Bhopal No.547396 would go to show that P.W.2 could not have been

oblivious to the on-going affair between the accused and the deceased

daughter Priti. The theory of alleged threat seems to be a mere invention of

the prosecution to somehow fix the appellant with the murder taking

advantage of the partial evidence produced. This line of reasoning suggested

by the learned counsel for the appellant would get strengthened from the fact

that though the Police arrived immediately after the occurrence and a

complaint was lodged by P.W.2, there was no mention about the appellant

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being even a suspect for incident and if only the theory of threat sought to be

advanced to prove the complicity of the appellant with the murder, was a real

fact the moment he saw the occurrence on his return to the house that alone

should have naturally come to his thought in the forefront. From the mere fact

that the deceased Priti and the appellant were said to be in love alone, it

cannot be even remotely presumed that he should have been the cause for

the murder unless it is substantiated by credible evidence that the affair had

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.

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 respond or verify what it was about. The

conduct and the attitude of P.W.4 as well as P.W.5 seems to be highly

suspicious to make them to be really true witnesses for the event spoken to

by them. Though P.W. 4 would claim that he saw the accused entering near

the compound leading to the house of P.W.2 while he was leaving for the bus

stand for his onward journey to Indore to attend the Court work in the High

Court, P.W. 5 was positive in deposing that after the occurrence and when

the police arrived and people were gathered before the house of P.W.2, he

found P.W.4 also in the crowd. In spite of all these, P.W.5 would say that he

immediately left for his village evincing no interest in the matter and returned

after two days and when he called on the Doctor, he disclosed about having

seen the appellant whom he claimed to know since the appellant was residing

earlier in the Upkar Lodge. P.W.4, the Advocate, also would say that only

when he returned late in the night, he called on the father and disclosed the

information about his having noticed the appellant while he was leaving. The

evidence of these two witnesses seems too artificial to be believed and their

disappearance from the scene, to reappear one on the night and other after

two days, would hardly inspire confidence in their version, to be believed by

any reasonable person or any Court, which is obliged to analyse and assess

the credibility of the evidence before accepting the same. Consequently, no

reliance could have been placed on their version to prove the movement of

the appellant during the relevant point of time near the house of P.W.2 so as

to implicate him in the murder. It is necessary at this stage itself to advert to

the claim of the appellant that on 7.4.1999 he left Bhopal accompanying his

sister DW-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 that not

only the appellant travelled along with the D.W.1, but he was very much

present at Dahod in Gujarat on 8.4.1999. Curiously, the Courts below chose

to summarily reject the claim faulting the appellant for not examining the

railway officials ignoring the fact that in spite of Inspector Gaur collecting the

materials relating to his reservation and travel, neither he was examined nor

the prosecution summoned those officials, who were examined during the

course of 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

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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 attempt was made to mark or let in evidence of the

relevant railway officials, though the materials gathered were shown in the list

of documents by the prosecution. It appears that on a grievance of

harassment and biased and partial investigation by the local Police, complaint

seems to have been made necessitating the CID officers to conduct an

independent investigation and submit a report, but claiming privilege and

protection under Section 137(6) of the Cr.P.C., not only those papers were

removed from the case file, but no one associated with the said investigation

were even examined though they were cited as witnesses and were also said

to be present in court on 7.12.2000. Strangely, the learned Trial Judge while

examining the accused under Section 313, Cr.P.C., was shown to have put

questions about the conduct of those investigating officers to the accused.

The serious lapse in not pursuing the examination of the finger prints or bring

on record the results of fingerprints taken and making them available for

consideration as well as the omission to bring to the notice of the Court the

result of the lie detector test, to which the appellant was subjected, sufficiently

create serious suspicion and cast great shadow of doubt on the credibility and

truthfulness of the prosecution case.

The next circumstance that was considered to be a strong and

relevant one to connect the appellant with the occurrence was the recovery of

the chain said to have been worn by his younger daughter Nidhi and stated to

be missing. The entire episode, both with reference to this recovery as well

as the recovery of the knife said to have been used in the commission of the

offence as well as the blood stained clothes of the appellant seem to be much

more shrouded in suspicion and dramatic than real to inspire any confidence

or faith to place any reliance on either of them. About the so-called missing of

the chain, which looked similar to gold, and about other alleged missing

articles, P.W.2 was said to have given in writing, without any date, but

indisputably only on 21.4.1999.

The identification test said to have been conducted by the Tehsildar (PW-

8) and the so-called identification of the same by PW-2 and his wife of the

chain said to have been worn by the deceased Nidhi does not carry the case

of the prosecution any further. It is stated that the said chain placed 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 Inspector Gaur, who

brought the appellant from Bhopal, also cast serious and reasonable doubts

about this part of the prosecution case. The same appears to be the position

with reference to the story about the disclosure statement Ex.P-23 and the

recovery panchnama Ex.P-24 relating to the recovery of the blood stained

knife and clothes recovered from the bushes near the Hanuman temple.

Apart from the story striking to be stale, unnatural and unbelievable that after

the occurrence the appellant had gone to the temple area to hide these two

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things though he was said to have been going towards the bus stand,

suggestive of the fact that he was only leaving for Bhopal. The delayed

recovery that too after the second remand of the appellant cast serious

doubts about the said circumstance itself to be true or accept to have been

proved. Though PW-10, the panch witness would claim that the appellant

signed the disclosure statement Ex.P-23 in his presence, the same really

does not bear any signature of the appellant. This fact taken together with

the deposition of PW-10 that the appellant was found handcuffed and his face

was covered and the non-examination of the other witness in spite of such

doubtful version, the credibility of the so-called disclosure statement as well

as the alleged recovery becomes seriously doubtful.

Considering also the number, nature and manner of injuries found inflicted

on the body of the two girls as also the deposition of PW-18, the Doctor, who

conducted the post-mortem, serious doubts, in our view, could reasonably be

said to arise to engulf the credibility of the prosecution theory, as a whole, as

to whether it was possible at all for a single person to inflict so many injuries

with one knife and within such a short span of time left between PW-2 and his

wife leaving from the house and returning from their morning walk. It is also

doubtful as to whether one person could have, without getting himself hurt, or

receiving any form of injury during altercation, in retaliation from the two girls,

inflicted so many injuries. In this context, the absence of any explanation to

the bloodstains found on the terrace of the house also assumes significance

and considerably affect the veracity of the case projected by the prosecution.

The learned counsel for the respondent strenuously contended that

though, each of the above circumstances 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 of coherence is found writ large

in the manner of consideration adopted by the courts below. In the case of

evaluation of the evidence, it could be seen so patently that insignificant

things have been unduly magnified and serious lapses and withholding of vital

materials and relevant witnesses have been unjustifiably glossed over despite

the fact that the production of those materials would have really helped to fix

the guilt or otherwise of the appellant concretely and bring about the real truth

about the matter. We find, on going through the materials on record and the

judgments of the courts below, the case before us to be an ideal and

illustrative one to justify the apprehensions often reiterated by this Court that

the mind was apt to take pleasure in adopting the circumstances to one or the

other circumstance without straining a little to supply even the links found

wanting to render them complete. The fact that at a busy place like the one in

and nearby the Hospital area, a thickly residential with surroundings as

spoken to by the witnesses such murder of two girls could be said to have

been executed without attracting the attention of anyone nearby or regular

passersby at that point of time in the area also seriously improbablise the

prosecution version that the appellant alone was and could have been the

culprit. We are also of the view that the doubtful and suspect nature of the

evidence sought to be relied upon to substantiate the circumstances in this

case themselves suffer from serious infirmities and lack of legal credibilities to

merit acceptance in the hands of Courts of Law, since the very circumstances

sought to be relied upon themselves stood seriously undermined the

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existence or proof of one or more of stray circumstances in the chain, break

and dislocate the link in such 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 constitute or provide the necessary basis to legitimately presume

the guilt of the appellant. We could not resist but place on record that the

appellant seems to have been roped in merely on suspicion and the story of

the prosecution built on the materials placed seems to be neither 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 or approval in our hands

having regard to the glaring infirmities and illegalities vitiating them and patent

errors apparent on the face of the record, resulting in serious and grave

miscarriage of justice to the appellant.

For all the reasons stated above, the judgments of the courts below are

set aside. The appeal is allowed and the appellant is acquitted and directed

to be released forthwith, if not required in any other case.