REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1315-1316 OF 2023

(Arising out of SLP (Criminal) Nos.8047-8048 of 2019)

STATE OF MADHYA PRADESH … Appellant

VERSUS

PHOOLCHAND RATHORE … Respondent

J U D G M E N T

MANOJ MISRA, J.

1. Leave granted.

2. These appeals are by the State of Madhya

Pradesh against the judgement and order of the High

Court of Madhya Pradesh at Jabalpur (for short “the

High Court”) dated 11.12.2015 in Criminal Appeal

No.1292 of 2015 connected with Criminal Reference

No.2 of 2015 whereby, the order of conviction and

sentence including death penalty awarded to the

respondent by the Court of District and Sessions

Judge, Anuppur in Sessions Trial No.72 of 2010,

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under sections 302 and 201 of the Indian Penal

Code, 1860 (for short “IPC”) has been set aside and

the respondent has been acquitted.

3. To have a clear understanding of the issues

raised in these appeals a brief description of the

prosecution case and the evidence led by the

prosecution would be apposite.

Introductory Facts

4. The prosecution story narrated in the first

information report (FIR), lodged by deceased’s brother

Kamla (PW2), is that the accused-respondent was

unhappy that his wife Sundariya (the deceased) had

kept her jewellery with her sister Jaimatiya Bai (PW-

8); on the fateful day i.e. 01.02.2010, at around 1400

hours, the accused came to the house of PW2, while

PW8 was there, fought with PW8 and told her that he

would kill Sundariya and set the house on fire; when

PW2 returned from his shop at around 1900 hours,

on getting the above information, he telephoned

Madhuri (PW4), daughter of Sundariya, who informed

PW2 that her father had taken her mother on a

bicycle towards the field while making utterances

that he would kill her. On receipt of information from

PW4, PW2 came to the village where Sundariya

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resided and went to search her out with the help of

Manoj (not examined) and PW2’s brother-in-law

Mathura (PW3). During the course of search, they

found the deceased lying seriously injured between

the railway tracks. They, therefore, rushed her to

Jaithari Hospital but, on way, she succumbed to her

injuries. The FIR was promptly lodged at P.S. Jaithari

on 01.02.2010 at 2130 hours expressing suspicion

against the respondent (i.e. the accused) of having

killed his wife.

5. As per arrest memo (Ex. P-11), the accused

was arrested on 02.02.2010, at about 1240 hours,

from Seoni Tri-section. Vide Ex. P-9, on the same day

i.e. 02.02.2010, at 1300 hours, a disclosure

statement of the accused was recorded wherein, he

assured recovery of stones (gitti) and blood-stained

pant and shirt kept in his hut. Pursuant thereto, vide

seizure memo (Ex. P-10), on 02.02.2010, at 1400

hours, a moss coloured full shirt and dark brown full

pant with blood stains on them, three blood-stained

stones with hair stuck on it and one old hero jet cycle

were recovered from that hut.

6. Interestingly, on the same day, at the same

time i.e. 1400 hours, vide Ex. P-12, another seizure

was made from near the railway line of 5 blood-

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stained gravel (gitti - stone), 5 plain gravel (gitti -

stone), blood stained red coloured saree and

chappals.

7. On completion of the investigation, a charge-

sheet was laid against the appellant and, after taking

cognizance thereon, the case was committed to the

Court of Session. The Sessions Court charged the

appellant for committing murder of his wife on

01.02.2010 at 2000 hours, punishable under section

302 IPC, and of concealing blood-stained

stones/shirt/pant and cycle used in the offence with

a view to remove evidence thereof, punishable under

Section 201 IPC. The accused pleaded not guilty and

claimed trial.

Prosecution Evidence

8. As there existed no eyewitness account of the

murder, the prosecution rested its case on

circumstances, inter alia, (a) the accused bore a

grudge against his wife for keeping jewellery with her

sister (PW8); (b) on the fateful day, during day time,

accused on that count, quarrelled with PW8 and

threatened to kill the deceased and set the house on

fire; (c) in the evening of that fateful day, the accused

quarrelled with the deceased and took her with him

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on a bicycle, while extending threats that he would

kill her; (d) later, that evening, the deceased was

found in a seriously injured condition; (e) the

deceased died on account of those injuries; and (f)

blood-stained clothes etc. were recovered at the

instance of the accused thereby making the chain

complete. To prove these circumstances, the

prosecution examined 12 witnesses. Gist of their

testimony is noticed below:

(i)PW-1 - Ganga Bai

She is the aunt of the accused. She did

not support the prosecution case and was

accordingly declared hostile. Nothing much

turns on her testimony.

(ii) PW-2 – Kamla Singh Rathore (the

informant)

He deposed about — receipt of

information, at 1900 hours, of the quarrel

that took place on the fateful day during day

time; search operation; discovering the

deceased, at around 2000 hours, in an

injured condition near railway track; rushing

her to the hospital; the deceased succumbing

to her injuries on way to the hospital; and

lodging of the FIR. During cross-

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examination, PW2 admitted that no

quarrel/fight took place in his presence. On

being questioned as to how PW2

communicated with PW4 on that fateful day,

PW2 stated that PW4 had used mobile of

some third person but could not disclose his

name or number.

(iii) PW-3 – Mathura Prasad Rathore

He corroborated PW2’s statement that

the deceased was found lying near the

railway tracks and from there she was

rushed to Hospital though she succumbed to

her injuries on way.

(iv) PW-4 – Madhuri Singh Rathore (Daughter

of the deceased)

She is the star witness. She deposed

about — fights between her father (the

accused) and mother (the deceased); her

returning from maternal uncle’s home at

1630 hours and noticing her father and

mother fighting/quarrelling and, later, her

father forcibly taking her mother on his cycle

to the fields. PW4 also stated that she

followed them up to the village pond but, on

being scolded, she came back and that near

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the pond, she met Sushila (PW-12), her

paternal aunt, to whom she narrated the

incident. Whereafter, on coming back, she

made a phone call to her maternal uncle

(PW2). Then her maternal uncle called back

to know the whereabouts of her mother.

When she told him that her father had taken

her mother and had asked her to remain in

the house, her maternal uncle came to the

village in search of her mother. PW4, during

her deposition, added that in between her

father had returned alone and had told her

that he had killed her mother.

During cross-examination, PW4

admitted that the ornaments that were kept

by her mother with her aunt (i.e. mother’s

sister) were returned by her aunt eight days

before the incident. She also admitted that

on the fateful day she gave her examination

from 1100 hours till 1500 hours and that, at

present, she is living with her maternal

uncle. PW4 was also confronted with her

previous statement wherein there was an

omission regarding confession made by her

father.

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(v) PW-5 – Dr. Sunil Khanna (Autopsy

Surgeon)

He proved the autopsy report (Ex.P-8)

wherein he recited eight lacerated wounds,

ante mortem in nature, caused by hard and

blunt object within 24 hours of examination

conducted on 02.02.2010 at 1100 hours

According to his opinion, deceased died

within 24 hours of the examination, on

account of head injuries leading to

haemorrhage, resultant shock and cardio

respiratory failure.

During cross examination, he stated that

if train is moving and any person, walking on

foot, gets dashed by the train then such

injuries may occur.

This witness was re-examined and

questioned by Court. At that stage, the

witness stated that if injuries were sustained

during a train accident then it might reflect

fracture on face. He accepted the possibility

of injuries being caused as a result of assault

with Gitti (Gravel - small stones).

(vi) PW-6 – Shivkumar Rathore

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He is a witness to the disclosure

statement and seizure of blood-stained

clothes etc. He, however, did not support the

prosecution case and was therefore declared

hostile. During cross-examination he

admitted his signature on the

memorandum(s) but claimed that his

signatures were obtained by the police at the

police station without informing him about

the contents of the documents.

(vii) PW-7 – Kiran @ Rambai

She is another daughter of the deceased.

She stated that at the time of the incident,

she was in the house of her maternal uncle

namely, Kamla Rathore, at Jaithari. During

cross examination, she stated that disputes

between her father and mother used to take

place but they use to get resolved.

(viii)PW-8 – Jaimatiya Bai Rathore

She is sister of the deceased Sundariya.

She deposed that the dispute between the

deceased and her husband was on account

of ancestral properties coming from

deceased’s mother side. She stated that she

does not have any other information about

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the incident. At this stage, the witness was

declared hostile and was allowed to be cross-

examined by the prosecution.

During cross-examination, at the

instance of prosecution, she stated that there

was theft at Sundariya’s place therefore, for

security reasons, Sundariya had kept her

gold and silver at her house which, a week

before the incident, were sent by her to the

house of Sundariya. She also stated that the

accused had come to her house and had

threatened to kill Sundariya and set the

house on fire.

During cross-examination at the

instance of the accused, upon a suggestion

that a family dispute was going on, PW8

stated the accused was pressurising the

deceased to take a share in her ancestral

property from her brother and since she was

not agreeing to it, the accused had a dispute

with her.

(ix) PW-9 – Rajiv Singh

He was the Halqa Patwari (Revenue

Circle Inspector/Lekhpal) who inspected the

crime scene under orders of the Tehsildar

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and prepared the spot panchnama (Ex. P-13)

as also site plan (Ex. P-14) of the place from

where the deceased was taken in an injured

condition to the hospital.

(x) PW-10 – Ashok Kumar Rathore

He is son of PW2 who brought his vehicle

to take the deceased along with PW2 to the

hospital. He corroborated the evidence that

the deceased succumbed to her injuries on

way to the hospital.

(xi) PW-11 – Satish Dwivedi - Investigating

Officer

He proved the various stages of

investigation including registration of the FIR

on 01.02.2010 at 2130 hours. Interestingly,

as per his deposition, he visited the site on

02.02.2010 and vide seizure memo (Ex.P-12)

lifted blood-stained gravel, plain gravel,

blood-stained saree and two slippers from

the spot. He deposed about — arresting the

accused vide memo Ex.P-11; recording his

disclosure vide Ex.P-9; and effecting recovery

vide memo (Ex.P-10). He stated that sealed

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articles were sent for forensic examination.

He also produced the recovered articles as

material exhibits.

During cross-examination, though PW11

admitted knowing PW2 (informant) from

before but denied the suggestion that he

conspired with PW2 to falsely implicate the

accused. In paragraph 25 he stated that

saree was not found on the body of the

deceased. He also admitted that a new

railway track was being laid there and in that

connection machines were there. However, he

denied the suggestion that in connection

with laying new track hundreds of workers

(labourers) were there. In paragraph 32 he

denied the suggestion that the accused had

reached the police station on 01.02.2010

itself. He also denied the suggestion that the

alleged arrest, disclosure and recovery at the

instance of the accused are bogus.

In respect of the distance between Seoni

Trisection and Seoni village, PW11 denied

the suggestion that the distance between the

two is of 6 km. Rather, claimed it to be 600

meters. He also admitted that the witnesses

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of the memorandum were not residents of

Seoni Trisection.

(xii)PW-12 – Sushila (Sister-in-Law of the

Deceased)

PW-12 disclosed no knowledge about the

prosecution case and was therefore declared

hostile.

Forensic Reports

9. In addition to the oral testimony of the

witnesses, forensic reports confirmed presence of

human blood on saree, shawl, petticoat, blouse, shirt

and stone. Likewise, blood was found on the gravel

recovered from the place of occurrence though its

origin could not be determined as it had

disintegrated. Similarly, the classification of the blood

could not be made as it had disintegrated.

Statement under section 313 Cr.P.C.

10. The incriminating circumstances appearing in

the prosecution evidence were put to the accused

while recording his statement under section 313 of

the Code of Criminal Procedure, 1973 (for short

“Cr.P.C.”) The accused denied the incriminating

circumstances and claimed that he has been falsely

implicated.

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Findings of the Trial Court

11. The Trial Court found the following

incriminating circumstances proved — (a) the

deceased was assaulted, abused and forcibly taken

by the accused on a bicycle and she did not return

thereafter rather, two hours later, was found in badly

injured condition; (b) the accused made extra judicial

confession of his guilt to his daughter (PW4); (c)

human blood was found on the clothes recovered;

and (d) except bald denial no explanation was offered

by the accused. According to the trial court, the said

circumstances constituted a chain so far complete

that it established beyond doubt that it was the

accused and no one else who committed the crime.

To conclude as above, the Trial Court placed reliance

on the testimony of PW-4. Upon finding the accused

guilty, the trial court convicted the accused and

awarded death penalty to him under section 302 IPC

and 7 years RI under section 201 IPC. For

confirmation of death penalty, a reference was made

to the High Court under section 366 Cr.P.C., which

was registered as Reference No.2 of 2015. In the

meantime, the accused filed criminal appeal against

the order of conviction and sentence, which gave rise

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to Criminal Appeal No.1292 of 2015 before the High

Court. The appeal and the reference were connected

and decided together by the High Court vide

impugned judgment and order dated 11.12.2015.

High Court Findings

12. The High Court set aside the judgment and

order of the trial court and acquitted the appellant.

While doing so, it discussed the testimony of

prosecution’s star witness i.e. PW 4 in paragraphs 29

and 30 and did not find the prosecution evidence

reliable and trustworthy for the reasons recorded by

it in paragraphs 31, 32, 33, 34 and 35 of its

judgment, which are extracted below:-

“31. This statement of Madhuri (PW-4) the

main witness to the case becomes doubtful in view

of the several omissions and contradictions

contained therein. The first is the fact that she

states that her father took her mother forcibly on

the cycle and while doing so he was seen by Ganga

Bai (PW-1) and Sushila (PW-12) but both these

witnesses have clearly denied this fact or any

knowledge about the incident and have been

declared hostile. Secondly, this witness Madhuri

(PW-4) in her statement, on the one hand, states

that her father came back after committing the

crime in bloodstained clothes, changed them in the

night of 1.2.2010, hid them in the cattle shed and

thereafter washed the clothes in the morning of the

next day and spread them to dry on the roof

whereas in the same paragraph she has stated that

her father the accused appellant was arrested in the

night of the incident i.e. 1.2.2010 from the ‘nala’

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with an axe in his hand. Thirdly, it is also apparent

that she states that her father hid the clothes in the

house itself and subsequently he washed and dried

them in the house itself whereas the bloodstained

clothes of the accused appellant are said to have

been seized from the hut situated in the field vide

seizure memo Exhibit P-9 and seizure panchnama

Exhibit P-10. The statement of Madhuri (PW-4) is in

direct conflict with and in contradiction of the

prosecution story which in turn makes it clear that

one of them is false thereby casting a deep shadow

of doubt on the case against the appellant.

32. From a perusal of the aforesaid facts and

circumstances it is also clear that:

(1) the statement made by Madhuri (PW-4) is

unreliable and is full of embellishments,

exaggerations as well as contradictions and

omissions on account of the fact that her

statement regarding fighting between the

appellant on account of jewellery is apparently

false in view of the clear and specific statement

of Jaimataiya Bai (PW-8) who has emphatically

stated that she had returned the jewellery eight

days before the incident;

(2) her statement regarding constant fighting

between her parents on account of the jewellery

is not corroborated and supported by her elder

sister Kiran @ Rambai (PW-7) who has in fact

stated that the fight between her parents was

usual and normal fight between husband and

wife;

(3) that she has stated that her father, after

committing the crime, returned back with

bloodstained clothes, hid them in the cattle

shed, changed his clothes and went away and

thereafter washed his clothes in the morning of

the next day after the incident i.e. on 2.2.2010

whereas in the same breath she has also

asserted that her father was arrested on the

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same night of the incident itself i.e. on 1.2.2010

by the police with an axe in his hand whereas

there is no mention in her statement to the effect

that her father had gone to the field with an axe

in his hand or that he had taken the axe after

the incident from the cattle shed.

(4) There is also material contradiction in her

statement to the effect that she had gone to her

maternal uncle’s house to give her examination

whereas in her own statement she has stated

that her mother told her to go to her maternal

uncle’s house.

(5) Her statement is also quite unnatural

inasmuch as she has stated the fact that she

rang her maternal uncle Kamal (PW-2) informing

him about the incident but did not inform her

paternal uncle or any of her neighbours or

persons residing nearby.

33. It is also pertinent to note that a bare perusal of

the case diary statement of Madhuri, Exhibit P-38,

and the statement made by her in Court clearly

indicates that there is omission and contradiction in

regard to the alleged extra-judicial confession made

by the accused to Madhuri (PW-4) as she has not

stated anything about any such extra-judicial

confession in her case diary statement. In fact, this

contradiction and omission, deficiency and

weakness in the statement of Madhuri (PW-4) has

also been taken note of by the court below in paras

33 and 44 of its judgment but the court below has

chosen to ignore the same on the ground that there

is a mistake committed by the prosecutor in

recording of her statement and the interest of justice

demands that the omissions and contradictions be

ignored.

34. The fact that her father had taken her mother

forcibly to the field and had told her that he would

murder her mother but she did not inform this fact

to either her paternal uncle who is her neighbour or

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any other neighbour residing nearby or any other

person residing in the locality or her acquaintance

except her maternal uncle who was residing 2 kms

away also casts a shadow of doubt upon her

statement as this conduct is unnatural. The

aforesaid omissions, contradictions and

embellishments in the statement of Madhuri (PW-4)

when read with the uncorroborated and

unsupported unnatural statements made by her to

the effect that her father told her on three occasions

that he would murder her mother and after

committing the crime again came back and

confessed to the commissions of the crime which

confession was not disclosed by her in her case

diary statement makes it clear that her statement

cannot be said to be of unimpeachable and sterling

quality and cannot be relied upon as it does not

satisfy the tests laid down by the Supreme Court in

the above referred judgments.

35. In view of the aforesaid detailed analysis of the

evidence of Madhuri (PW-4) we arrive at a

conclusion 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.”

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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

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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

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(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.

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

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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

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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

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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 & Others

1

).

21. In State of M.P. & Others v. Paltan Mallah

& Others

2

, reiterating the same view it was

observed:

1 (1982) 1 SCC 352

2 (2005) 3 SCC 169

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“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 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 & Others

3

, 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

3 (2020) 11 SCC 174

Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 25 of 36

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

Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 26 of 36

thereafter the deceased was found in an injured

state. We shall examine each of these circumstances,

separately, herein below—

(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.

Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 27 of 36

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

Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 28 of 36

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 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

Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 29 of 36

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

Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 30 of 36

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

Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 31 of 36

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

Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 32 of 36

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. 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

Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 33 of 36

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

Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 34 of 36

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

Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 35 of 36

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.

....................................J.

(Sanjay Kishan Kaul)

....................................J.

(Manoj Misra)

....................................J.

(Aravind Kumar)

New Delhi;

April 28, 2023

Crl. Appeals @ SLP (Crl.) Nos.8047-8048 of 2019 Page 36 of 36