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PETITIONER:

SAKHARAM

Vs.

RESPONDENT:

STATE OF MADHYA PRADESH

DATE OF JUDGMENT12/02/1992

BENCH:

KULDIP SINGH (J)

BENCH:

KULDIP SINGH (J)

SAHAI, R.M. (J)

CITATION:

1992 AIR 758 1992 SCR (1) 638

1992 SCC (2) 153 JT 1992 (1) 515

1992 SCALE (1)320

ACT:

Penal Code, 1860-Section 302-Conviction under-Absence

of motive in a case of circumstantial evidence-Relevancy of

-Accused and deceased `children' defined in the Children

Act, 1960-Juvenile-innocence-Presumption of -Prosecution's

duty.

HEADNOTE:

The prosecution's case was that a few days before the

incident the accused-appellant's grand father suffered heart

attack and on his hospitalisation, accused's parents were

attending on him.

The deceased, who was the aunt of the accused and

daughter-in-law of accused's grand father came to see her

ailing father-in-law.

Thereafter the deceased went to her father-in-law's one

room house in the village, where the accused was staying

alone and stayed for 8/10 days.

The accused was aged about 16 and his aunt, the

deceased was aged 17/18.

On 29.10.1968 at about noon time, the neighbours heard

a gun-shot sound from the accused's house. On reaching the

accused's house they found the deceased lying dead on the

floor and a 12 bore gun on the bed.

One of the neighbours was an uncle of the accused, to

whom, the accused told crying, "run uncle what has

happened".

The trial Court convicted the appellant for murder and

sentenced him to imprisonment for life.

Accused's appeal was dismissed by the High Court,

against which by special leave this appeal was filed.

Allowing the appeal of the accused, this Court.

HELD: 1.01. The appellant was present at the time and

place of

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occurrence but this circumstance alone is not sufficient to

conclude that it was the appellant who fired the gun-shot

and he did so with the intention of killing the deceased.

[641F-G]

1.02. There is absolutely no motive on the part of the

appellant to murder the deceased. Absence of motive may not

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be relevant in a case where the evidence is overwhelming but

it is a plus-point for the accused in a case where the

evidence against him is only circumstantial. [642B]

1.03. His telling his uncle while crying "run uncle

what has happened" shows that the happening was beyond his

comprehension. It could be an accident while fiddling with

the gun. [641H, 642A]

1.04. The appellant and the deceased were children as

defined under the Children Act, 1960. When presumption of

juvenile-innocence is sought to be displaced by the

prosecution on the basis of circumstantial-evidence the

circumstances must unmistakably prove the guilt beyond doubt

[642C]

1.05. The prosecution has not been able to prove the

charge against the appellant beyond doubt. [642D]

JUDGMENT:

CRIMINAL APPELLANT JURISDICTION : Criminal Appeal No.

370 of 1980.

From the Judgment and Order dated 30.1.1980 of the

Madhya Pradesh High Court in Crl. A. No. 311 of 1973.

T. Sridharan for the Appellant.

Uma Nath Singh for the Respondent.

The Judgment of the Court was delivered by

KULDIP SINGH, J. Sakharam and Awadhrani, aged about 16

and 17/18 were together in a one room-house belonging to

Sakharam's grandfather in a village. Awadhrani was married

to Sakharam's uncle (father's younger brother). A gun-shot

was heard and the neighbours rushed to the room. Awadhrani

was found lying dead on the floor with a gun-shot injury.

Sakharam was standing nearby and was crying. On these facts

the trial court convicted Sakharam for the murder of

Awadhrani and sentenced him

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to imprisonment for life. His appeal to the High Court was

dismissed. Hence this appeal via special leave.

The appellant along with his father and grand-father

was living in a village near Jabalpur. Awadhrani was the

wife of Govindprasad, uncle of the appellant. Govindprasad

was employed at Bhopal and Awadhrani was living with him. A

few days before the incident appellant's grand-father had

suffered heart attack and was shifted to Jabalpur Medical

College. Appellant's father and mother were attending on

his grand father at the hospital. Awadhrani had come from

Bhopal to Jabalpur to see her father-in-law. She stayed at

Jabalpur for about 3/4 days and thereafter went to the

village where the appellant was staying alone in the family

house. After about 8/10 days of stay in the village on

October 29, 1968 at about noon time the neighbours heard a

gun-shot sound from the house of the appellant. Mahadeo

(P.W.4), one of the neighbours, was the uncle of the

appellant. As soon as Mahadeo reached appellant's house,

the appellant, while crying, told him "run uncle what has

happened". The neighbours found Awadhrani lying dead on the

floor and a 12 bore gun lying on the bed. It is not

disputed that the appellant's grand-father had two licenced

guns which were lying in the same room.

There is no direct evidence against the appellant.

There is no reason, conscious or sub-conscious, for the

appellant to commit the murder. They have been together in

the one room-house for about 8/10 days. The appellant

denied having committed the offence but gave no explanation

as to how and under what circumstances the deceased got the

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fatal gun-shot injury.

At the trial it was suggested that the deceased

committed suicide. Plea of alibi was also raised on behalf

of the appellant. The courts below, on appreciation of

evidence, rejected both the pleas. We see no infirmity in

the said findings of the courts below and agree with the

same.

The trial court found that the following circumstances

came to be established beyond doubt:-

1. That on the date and time of the incident the

accused and the deceased were the only two occupants of the

house which consisted of one room.

641

2. That the accused when examined by Dr. V.P. Gupta on

July 1, 1972 was found capable of having sexual intercourse.

3. The deceased Awadhrani was found dead in the room

which at the time of the incident was occupied by the

accused and the deceased.

4. Soon after the incident when the witnesses visited

the house, the accused who was present, did not assign any

reason for the death of the deceased and kept quiet.

5. After the incident an attempt was made to show that

the deceased died by committing suicide. A plea of alibi

was also set up on behalf of the accused.

On the basis of the above circumstances the trial court

convicted the appellant for the murder of Awadhrani. The

High Court upheld the conviction.

So far as the defence set-up at the trial on behalf of

the appellant is concerned that cannot be taken as a

circumstance against him. The appellant himself did not

raise any plea in his statement made before the trial court.

Simply because the pleas of suicide and alibi have failed at

the trial no adverse inference can be drawn against the

appellant. The guilt of the appellant has to be proved

beyond reasonable doubt on the basis of the evidence

produced by the prosecution.

It is no doubt correct that the appellant and the

deceased were together at the time when gun-shot sound was

heard and the witnesses who reached the spot thereafter

found the appellant standing nearby the dead body and

crying. It may, therefore, be reasonable to infer that the

appellant was present at the time and place of occurrence

but this circumstance alone is not sufficient to conclude

that it was the appellant who fired the gun-shot and he did

so with the intention of killing the deceased. The appellant

and the deceased were living in the house for about 8/10

days prior to the occurrence. There is no evidence to show

that he ever made any sexual advances towards the deceased.

It is no body's case that before the gun-shot was fired any

attempt to molest or outrage the modesty of the deceased was

made. The appellant did not run-away from the place of

occurrence though he had ample opportunity to do so. There

is nothing on the record to show that he could handle the

gun. His telling Mahadeo while

642

crying "run uncle what has happened" shows that the

happening was beyond his comprehension. It could be an

accident while fiddling with the gun.

There is absolutely no motive on the part of the

appellant to murder the deceased. Absence of motive may not

be relevant in a case where the evidence is overwhelming but

it is a plus-point for the accused in a case where the

evidence against him is only circumstantial.

The appellant, on the date of occurrence, was a young

boy and the deceased was his aunt in the same age group.

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Both were children as defined under the Children Act, 1960.

When presumption of juvenile-innocence is sought to be

displaced by the prosecution on the basis of circumstantial-

evidence the circumstance must unmistakably prove the guilt

beyond doubt.

We have given our thoughtful consideration to the

circumstances relied-upon by the courts below. We have not

been able to dispel our doubts. We are satisfied that the

prosecution has not been able to prove the charge against

the appellant beyond doubt. We, therefore, allow the appeal

and set aside the conviction and sentence of the appellant

and acquit him. The appellant is on bail. His bail-bond is

discharged.

V.P.R. Appeal allowed.

643