STATE OF MADHYA PRADESH versus PHOOLCHAND RATHORE on 28 April 2023

[2023] 5 S.C.R. 601

STATE OF MADHYA PRADESH

v.

PHOOLCHAND RATHORE

(Criminal Appeal Nos. 1315-1316 of 2023)

APRIL 28, 2023

[SANJAY KISHAN KAUL, MANOJ MISRA ANDARAVIND KUMAR, JJ.]

–Penal Code, 1860 – ss. 302 and 201– Acquittal underProsecution rested its case on the circumstances, inter-alia, (a) theaccused bore a grudge against his wife for keeping jewellery withher sister (PW8); (b) on the fateful day, during day time, accusedon that count, quarrelled with PW8 and threatened to kill thedeceased and set the house on fire; (c) in the evening of that fatefulday, the accused quarrelled with the deceased and took her withhim on a bicycle, while extending threats that he would kill her; (d)later, that evening, the deceased was found in a seriously injuredcondition; (e) the deceased died on account of those injuries; and(f) blood-stained clothes etc. were recovered at the instance of theaccused thereby making the chain complete – Trial Court convictedthe accused and death penalty was awarded to the accused – HighCourt gave accused benefit of doubt to the accused and acquittedhim – On appeal, held: Reason of the quarrel that deceased hadkept her jewellery with her sister (PW8) was not found proved – Asprosecution evidence revealed that jewellery was returned back –Thus, prosecution failed to prove motive – There appears no reasonfor accused to carry stones from the spot and hide them in his hutand leaving blood-stained stones near railway line – As far as bloodstained clothes are concerned, PW4 stated that her father (accused)on return had washed those clothes and spread them to dry – Howcould they be recovered from hut – So, the recovery of the blood-stained clothes etc. was doubtful – Police prepared twomemorandums (disclosure statement, as per the memorandum (Ex.P-9), at Seoni Trisection, witnessed by PW6 and the recovery memo(Ex.P-10), was prepared at accused’s hut near railway line at thesame time also witnessed by PW-6) – Both memorandums wereprepared at the same time and different places, meaning all paperswere signed at one go rendering the entire exercise of disclosure

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Aand consequential discovery/recovery doubtful – Alleged extrajudicial confession made by the accused to PW4 was neitherdisclosed in the FIR nor in the previous statement of PW4 madeduring investigation – Extra judicial confession also not provedbeyond reasonable doubt – Also, accused and the deceased werenoticed quarrelling with each other at about 1630 hours and soonBthereafter, the appellant took deceased on his cycle – As perprosecution deceased was found injured at around 2000 hours,there was quite a large time-gap for other intervening factors tooperate – Therefore, motive, disclosure, recovery and extra judicialconfession was not proved beyond reasonable doubt.C

Constitution of India – Art. 136 – When it appears that theHigh Court has on an absolutely wrong process of reasoning and alegally erroneous and perverse approach to the facts of the caseand ignoring some of the most vital facts, acquitted the respondentand the order of acquittal passed by the High Court has resulted inDa grave and substantial miscarriage of justice, extraordinaryjurisdiction under Article 136 of the Constitution of India mayrightfully be exercised.

Dismissing the appeals, the Court

HELD: 1. The prosecution relied on the followingEcircumstances: (a) Motive; (b) Disclosure Statement andRecovery; (c) Extra Judicial Confession; and (d) Accused takingthe deceased with him and soon thereafter the deceased was foundin an injured state [Para 24][618-G]

2. (a) MotiveF

Conclusion

According to the prosecution, the appellant and thedeceased used to quarrel because the deceased had kept herjewellery with her sister. However, the above reason for thequarrel was not found proved because the prosecution evidenceled revealed that the jewellery had already been returned backGmuch before the date of the incident. Therefore, to prove motive,during trial, prosecution developed another story, which is, thatthe appellant desired his wife to claim a share in her ancestralproperty which resulted in quarrels. This motive neither appealedto the High Court nor to this Court. [Para 24 (i)][619-A-C]

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(b) Disclosure Statement and Recovery

The disclosure statement, as per the memorandum (Ex.P-9), was prepared at Seoni Trisection and witnessed by PW6; therecovery memo (Ex.P-10), was prepared at accused’s hut nearrailway line in Model village at 1400 hours 02.02.2010 and thesame was witnessed by PW6. Interestingly, PW6 is the only publicwitness of disclosure and recovery to be examined and he hasnot supported the prosecution case. What is even more interestingis that the other seizure memorandum prepared in respect oflifting blood-stained saree, gravel, slippers etc. from near therailway line, that is the spot from where the deceased was lifted,was prepared at 1400 hours on 02.02.2010. How could it bepossible that the police prepared two memorandums at the sametime at different places. The answer to it lies in the testimony ofPW6, a witness to both, who stated that he was made to sign thepapers at the police station. Meaning thereby that all papers wereprepared at one go rendering the entire exercise of disclosureand consequential discovery/recovery doubtful. Not only that,there appears no cogent reason for the accused to carry stonesfrom the spot and hide them in his hut while leaving several blood-stained stones near the railway line. In such circumstances, itappears to us that those stones were picked from the spot nearthe railway track to show recovery from the hut. Insofar as therecovery of blood-stained clothes is concerned, in addition tothe above reasons, the same is doubtful also because of thestatement of PW4 that her father on return had washed thoseclothes and had spread them to dry over the cattle shed in thehouse therefore, how could they be recovered from the hut. It benoted that the house is shown located in the village, whereas thehut is shown in the field at quite a distance from the house. Forall the reasons above, the High Court was justified in doubtingthe recovery of blood-stained clothes etc. at the instance of theaccused from the hut and on the basis of a disclosure statementmade by him. [Para 24 (ii)][620-C-H; 621-A-B]

(c) Extra Judicial Confession to PW4

The alleged extra judicial confession made by the accusedto PW4 was neither disclosed in the FIR nor in the previousstatement of PW4 made during investigation. PW4 was confronted A

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[2023] 5 S.C.R.

Awith that omission during her deposition in court. That apart, thetestimony 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 foundunreliable and shaky by the High Court for cogent reasonsextracted above, which do not appear perverse as to warrant anBinterference. Thus, the circumstance of extra judicial confessionis also not proved beyond doubt. [Para 24 (iii)][621-C-E]

(d) Accused taking the deceased from home on a bicycle

(d) Accused taking the deceased from home on a bicycle When the court peruse the detailed reasons recorded byCthe High Court in its judgment to hold that the testimony of PW4is not of a stellar quality as to merit conviction solely on its basis,this Court finds no perversity in the High Court’s conclusion asmay warrant a reversal of acquittal into a conviction in exerciseof jurisdiction under Article 136 of the Constitution. At what timethe accused had taken the deceased on his bicycle is not clearDfrom the testimony of PW4 though, from the first part of hertestimony, it appears that the accused and the deceased werenoticed quarrelling with each other at about 1630 hours and soonthereafter, the appellant took the deceased on his cycle. If, fromthat, the event of taking the deceased on bicycle at about 1630hours there is still quite a large time-gap between 1630 hoursEand 2000 hours for other intervening factors to operate. In lightthereof, considering that the place of occurrence was an openplace and the other circumstances (i.e. motive, disclosure,recovery and extra judicial confession) were not proved beyondreasonable doubt, shifting the burden on the accused to explainFthe circumstances in which the deceased sustained injuries, orto demonstrate that he parted company of the deceased, wouldnot be justified in the facts of the case. [Para 24 (iv)][621-H; 622-A-B; 623-A-D]

State of U.P. v. Sahai & Others (1982) 1 SCC 352; Stateof M.P. & Others v. Paltan Mallah & Others (2005) 3GSCC 169 : [2005] 1 SCR 710;Basheera Begam v.Mohd. Ibrahim & Others (2020) 11 SCC 174: [2020] 3SCR 562 – referred to.

Case Law Reference

H(1982) 1 SCC 352

referred to

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos.1315-1316 of 2023.

From the Judgment and Order dated 11.12.2015 of the High Courtof M.P. Principal Seat at Jabalpur in CRLR Nos.1292 and 02 of 2015.

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Pashupathi Nath Razdan, Mrs. Anuradha Mishra, Vikas Bansal,Advs. for the Appellant.

Yashraj Singh Deora (Amicus Curiae), Abhishek Singh, Adv. forthe Respondent.

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The Judgment of the Court was delivered by MANOJ MISRA, J.

1. Leave granted.

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2. These appeals are by the State of Madhya Pradesh against thejudgement and order of the High Court of Madhya Pradesh at Jabalpur(for short “the High Court”) dated 11.12.2015 in Criminal Appeal No.1292of 2015 connected with Criminal Reference No.2 of 2015 whereby, theorder of conviction and sentence including death penalty awarded to therespondent by the Court of District and Sessions Judge, Anuppur inSessions Trial No.72 of 2010, under sections 302 and 201 of the IndianPenal Code, 1860 (for short “IPC”) has been set aside and the respondenthas been acquitted.

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3. To have a clear understanding of the issues raised in theseappeals a brief description of the prosecution case and the evidence ledby the prosecution would be apposite.

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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) hadkept her jewellery with her sister Jaimatiya Bai (PW-8); on the fatefulday i.e. 01.02.2010, at around 1400 hours, the accused came to thehouse of PW2, while PW8 was there, fought with PW8 and told her thathe would kill Sundariya and set the house on fire; when PW2 returnedfrom his shop at around 1900 hours, on getting the above information, he G

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Atelephoned Madhuri (PW4), daughter of Sundariya, who informed PW2that her father had taken her mother on a bicycle towards the field whilemaking utterances that he would kill her. On receipt of information fromPW4, PW2 came to the village where Sundariya resided and went tosearch her out with the help of Manoj (not examined) and PW2’s brother-in-law Mathura (PW3). During the course of search, they found theBdeceased lying seriously injured between the railway tracks. They,therefore, rushed her to Jaithari Hospital but, on way, she succumbed toher injuries. The FIR was promptly lodged at P.S. Jaithari on 01.02.2010at 2130 hours expressing suspicion against the respondent (i.e. theaccused) of having killed his wife.C

5. As per arrest memo (Ex. P-11), the accused was arrested on02.02.2010, 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 statementof the accused was recorded wherein, he assured recovery of stones(gitti) and blood-stained pant and shirt kept in his hut. Pursuant thereto,Dvide seizure memo (Ex. P-10), on 02.02.2010, at 1400 hours, a mosscoloured 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 cyclewere recovered from that hut.

6. Interestingly, on the same day, at the same time i.e. 1400 hours,Evide Ex. P-12, another seizure was made from near the railway line of 5blood-stained gravel (gitti - stone), 5 plain gravel (gitti - stone), bloodstained red coloured saree and chappals.

7. On completion of the investigation, a charge-sheet was laidagainst the appellant and, after taking cognizance thereon, the case wasFcommitted to the Court of Session. The Sessions Court charged theappellant 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 evidencethereof, punishable under Section 201 IPC. The accused pleaded notguilty and claimed trial.G

Prosecution Evidence

8. As there existed no eyewitness account of the murder, theprosecution rested its case on circumstances, inter alia, (a) the accusedbore a grudge against his wife for keeping jewellery with her sister (PW8);(b) on the fateful day, during day time, accused on that count, quarrelledH

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 thedeceased and took her with him on a bicycle, while extending threatsthat he would kill her; (d) later, that evening, the deceased was found ina seriously injured condition; (e) the deceased died on account of thoseinjuries; and (f) blood-stained clothes etc. were recovered at the instanceof the accused thereby making the chain complete. To prove thesecircumstances, the prosecution examined 12 witnesses. Gist of theirtestimony is noticed below:

(i) PW-1 - Ganga Bai

She is the aunt of the accused. She did not support theprosecution 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 1900hours, of the quarrel that took place on the fateful day duringday time; search operation; discovering the deceased, ataround 2000 hours, in an injured condition near railwaytrack; rushing her to the hospital; the deceased succumbingto her injuries on way to the hospital; and lodging of theFIR. During cross-examination, PW2 admitted that noquarrel/fight took place in his presence. On being questionedas to how PW2 communicated with PW4 on that fatefulday, PW2 stated that PW4 had used mobile of some thirdperson but could not disclose his name or number.

(iii) PW-3 – Mathura Prasad Rathore

He corroborated PW2’s statement that the deceasedwas found lying near the railway tracks and from there shewas rushed to Hospital though she succumbed to her injurieson way.

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

She is the star witness. She deposed about — fightsbetween her father (the accused) and mother (thedeceased); her returning from maternal uncle’s home at1630 hours and noticing her father and mother fighting/

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quarrelling and, later, her father forcibly taking her motheron his cycle to the fields. PW4 also stated that she followedthem up to the village pond but, on being scolded, she cameback and that near the pond, she met Sushila (PW-12), herpaternal aunt, to whom she narrated the incident.Whereafter, on coming back, she made a phone call to hermaternal uncle (PW2). Then her maternal uncle called backto know the whereabouts of her mother. When she told himthat her father had taken her mother and had asked her toremain in the house, her maternal uncle came to the villagein search of her mother. PW4, during her deposition, addedthat in between her father had returned alone and had toldher that he had killed her mother.

During cross-examination, PW4 admitted that theornaments that were kept by her mother with her aunt (i.e.mother’s sister) were returned by her aunt eight days beforethe incident. She also admitted that on the fateful day shegave her examination from 1100 hours till 1500 hours andthat, at present, she is living with her maternal uncle. PW4was also confronted with her previous statement whereinthere was an omission regarding confession made by herfather.

(v) PW-5 – Dr. Sunil Khanna (Autopsy Surgeon)

He proved the autopsy report (Ex.P-8) wherein herecited eight lacerated wounds, ante mortem in nature,caused by hard and blunt object within 24 hours ofexamination conducted on 02.02.2010 at 1100 hoursAccording to his opinion, deceased died within 24 hours ofthe examination, on account of head injuries leading tohaemorrhage, resultant shock and cardio respiratory failure.

During cross examination, he stated that if train is movingand any person, walking on foot, gets dashed by the trainthen such injuries may occur.

This witness was re-examined and questioned by Court.At that stage, the witness stated that if injuries weresustained during a train accident then it might reflect fractureon face. He accepted the possibility of injuries being causedas a result of assault with Gitti (Gravel - small stones).

(vi) PW-6 – Shivkumar Rathore

He is a witness to the disclosure statement and seizureof blood-stained clothes etc. He, however, did not supportthe prosecution case and was therefore declared hostile.During cross-examination he admitted his signature on thememorandum(s) but claimed that his signatures wereobtained by the police at the police station without informinghim about the contents of the documents.

(vii) PW-7 – Kiran @ Rambai

She is another daughter of the deceased. She statedthat at the time of the incident, she was in the house of hermaternal uncle namely, Kamla Rathore, at Jaithari. Duringcross examination, she stated that disputes between herfather and mother used to take place but they use to getresolved.

(viii) PW-8 – Jaimatiya Bai Rathore

She is sister of the deceased Sundariya. She deposedthat the dispute between the deceased and her husbandwas on account of ancestral properties coming fromdeceased’s mother side. She stated that she does not haveany other information about the incident. At this stage, thewitness 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 placetherefore, for security reasons, Sundariya had kept her goldand silver at her house which, a week before the incident,were sent by her to the house of Sundariya. She also statedthat the accused had come to her house and had threatenedto 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, PW8stated the accused was pressurising the deceased to take ashare in her ancestral property from her brother and sinceshe was not agreeing to it, the accused had a dispute withher.

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A(ix)PW-9 – Rajiv Singh

He was the Halqa Patwari (Revenue Circle Inspector/Lekhpal) who inspected the crime scene under orders ofthe Tehsildar and prepared the spot panchnama (Ex. P-13) as also site plan (Ex. P-14) of the place from where thedeceased was taken in an injured condition to the hospital.

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(x) PW-10 – Ashok Kumar Rathore

He is son of PW2 who brought his vehicle to take thedeceased along with PW2 to the hospital. He corroboratedthe evidence that the deceased succumbed to her injurieson way to the hospital.

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(xi) PW-11 – Satish Dwivedi - Investigating Officer He proved the various stages of investigation includingregistration of the FIR on 01.02.2010 at 2130 hours.Interestingly, as per his deposition, he visited the site on02.02.2010 and vide seizure memo (Ex.P-12) lifted blood-stained gravel, plain gravel, blood-stained saree and twoslippers from the spot. He deposed about — arresting theaccused vide memo Ex.P-11; recording his disclosure videEx.P-9; and effecting recovery vide memo (Ex.P-10). Hestated that sealed articles were sent for forensicexamination. He also produced the recovered articles asmaterial exhibits.

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During cross-examination, though PW11 admittedknowing PW2 (informant) from before but denied thesuggestion that he conspired with PW2 to falsely implicatethe accused. In paragraph 25 he stated that saree was notfound on the body of the deceased. He also admitted that anew railway track was being laid there and in thatconnection machines were there. However, he denied thesuggestion that in connection with laying new track hundredsof workers (labourers) were there. In paragraph 32 hedenied the suggestion that the accused had reached thepolice station on 01.02.2010 itself. He also denied thesuggestion that the alleged arrest, disclosure and recoveryat the instance of the accused are bogus.

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In respect of the distance between Seoni Trisection andSeoni village, PW11 denied the suggestion that the distancebetween the two is of 6 km. Rather, claimed it to be 600meters. He also admitted that the witnesses of thememorandum were not residents of Seoni Trisection.

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

PW-12 disclosed no knowledge about the prosecutioncase and was therefore declared hostile.

Forensic Reports

9. In addition to the oral testimony of the witnesses, forensic reportsconfirmed presence of human blood on saree, shawl, petticoat, blouse,shirt and stone. Likewise, blood was found on the gravel recovered fromthe place of occurrence though its origin could not be determined as ithad disintegrated. Similarly, the classification of the blood could not bemade as it had disintegrated.

Statement under section 313 Cr.P.C.

10. The incriminating circumstances appearing in the prosecutionevidence were put to the accused while recording his statement undersection 313 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”)The accused denied the incriminating circumstances and claimed thathe has been falsely implicated.

Findings of the Trial Court

11. The Trial Court found the following incriminating circumstancesproved — (a) the deceased was assaulted, abused and forcibly taken bythe accused on a bicycle and she did not return thereafter rather, twohours later, was found in badly injured condition; (b) the accused madeextra judicial confession of his guilt to his daughter (PW4); (c) humanblood was found on the clothes recovered; and (d) except bald denial noexplanation was offered by the accused. According to the trial court, thesaid circumstances constituted a chain so far complete that it establishedbeyond doubt that it was the accused and no one else who committedthe crime. To conclude as above, the Trial Court placed reliance on thetestimony of PW-4. Upon finding the accused guilty, the trial courtconvicted the accused and awarded death penalty to him under section302 IPC and 7 years RI under section 201 IPC. For confirmation ofdeath penalty, a reference was made to the High Court under section A

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A366 Cr.P.C., which was registered as Reference No.2 of 2015. In themeantime, the accused filed criminal appeal against the order of convictionand sentence, which gave rise to Criminal Appeal No.1292 of 2015 beforethe High Court. The appeal and the reference were connected and decidedtogether by the High Court vide impugned judgment and order dated11.12.2015.B

High Court Findings

12. The High Court set aside the judgment and order of the trialcourt and acquitted the appellant. While doing so, it discussed the testimonyof prosecution’s star witness i.e. PW 4 in paragraphs 29 and 30 and didCnot find the prosecution evidence reliable and trustworthy for the reasonsrecorded by it in paragraphs 31, 32, 33, 34 and 35 of its judgment, whichare extracted below:-

“31. This statement of Madhuri (PW-4) the main witness to thecase becomes doubtful in view of the several omissions andcontradictions contained therein. The first is the fact that she statesthat her father took her mother forcibly on the cycle and whiledoing so he was seen by Ganga Bai (PW-1) and Sushila (PW-12)but both these witnesses have clearly denied this fact or anyknowledge about the incident and have been declared hostile.Secondly, this witness Madhuri (PW-4) in her statement, on theone hand, states that her father came back after committing thecrime in bloodstained clothes, changed them in the night of 1.2.2010,hid them in the cattle shed and thereafter washed the clothes inthe morning of the next day and spread them to dry on the roofwhereas in the same paragraph she has stated that her father theaccused appellant was arrested in the night of the incident i.e.1.2.2010 from the ‘nala’ with an axe in his hand. Thirdly, it is alsoapparent that she states that her father hid the clothes in the houseitself and subsequently he washed and dried them in the houseitself whereas the bloodstained clothes of the accused appellantare said to have been seized from the hut situated in the field videseizure memo Exhibit P-9 and seizure panchnama Exhibit P-10.The statement of Madhuri (PW-4) is in direct conflict with and incontradiction of the prosecution story which in turn makes it clearthat one of them is false thereby casting a deep shadow of doubton the case against the appellant.

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STATE OF MADHYA PRADESH v. PHOOLCHAND RATHORE[MANOJ MISRA, J.]

32. From a perusal of the aforesaid facts and circumstances it isalso clear that:

(1) the statement made by Madhuri (PW-4) is unreliable and isfull of embellishments, exaggerations as well as contradictionsand omissions on account of the fact that her statementregarding fighting between the appellant on account of jewelleryis apparently false in view of the clear and specific statementof Jaimataiya Bai (PW-8) who has emphatically stated thatshe had returned the jewellery eight days before the incident;

(2) her statement regarding constant fighting between herparents on account of the jewellery is not corroborated andsupported by her elder sister Kiran @ Rambai (PW-7) whohas in fact stated that the fight between her parents was usualand normal fight between husband and wife;

(3) that she has stated that her father, after committing thecrime, returned back with bloodstained clothes, hid them in thecattle shed, changed his clothes and went away and thereafterwashed his clothes in the morning of the next day after theincident i.e. on 2.2.2010 whereas in the same breath she hasalso asserted that her father was arrested on the same night ofthe incident itself i.e. on 1.2.2010 by the police with an axe inhis hand whereas there is no mention in her statement to theeffect that her father had gone to the field with an axe in hishand or that he had taken the axe after the incident from thecattle shed.

(4) There is also material contradiction in her statement to theeffect that she had gone to her maternal uncle’s house to giveher examination whereas in her own statement she has statedthat her mother told her to go to her maternal uncle’s house.

(5) Her statement is also quite unnatural inasmuch as she hasstated the fact that she rang her maternal uncle Kamal (PW-2) informing him about the incident but did not inform herpaternal uncle or any of her neighbours or persons residingnearby.

33. It is also pertinent to note that a bare perusal of the case diarystatement of Madhuri, Exhibit P-38, and the statement made byher in Court clearly indicates that there is omission and A

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Acontradiction in regard to the alleged extra-judicial confession madeby the accused to Madhuri (PW-4) as she has not stated anythingabout any such extra-judicial confession in her case diarystatement. In fact, this contradiction and omission, deficiency andweakness in the statement of Madhuri (PW-4) has also been takennote of by the court below in paras 33 and 44 of its judgment butBthe court below has chosen to ignore the same on the ground thatthere is a mistake committed by the prosecutor in recording ofher statement and the interest of justice demands that the omissionsand contradictions be ignored.

34. The fact that her father had taken her mother forcibly to theCfield and had told her that he would murder her mother but she didnot inform this fact to either her paternal uncle who is her neighbouror any other neighbour residing nearby or any other person residingin the locality or her acquaintance except her maternal uncle whowas residing 2 kms away also casts a shadow of doubt upon herDstatement as this conduct is unnatural. The aforesaid omissions,contradictions and embellishments in the statement of Madhuri(PW-4) when read with the uncorroborated and unsupportedunnatural statements made by her to the effect that her fathertold her on three occasions that he would murder her mother andafter committing the crime again came back and confessed to theEcommissions of the crime which confession was not disclosed byher in her case diary statement makes it clear that her statementcannot be said to be of unimpeachable and sterling quality andcannot be relied upon as it does not satisfy the tests laid down bythe Supreme Court in the above referred judgments.

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35. In view of the aforesaid detailed analysis of the evidence ofMadhuri (PW-4) we arrive at a conclusion that her statement isfull of embellishments, exaggerations and material discrepanciesand, therefore, we find ourselves unable to pick out the grain oftruth from the falsehood of her statement.”

G13. In addition to above, the High Court noticed that neither youngersister of Madhuri (PW4) nor neighbours or members of the locality wereproduced as witnesses to lend assurance to the prosecution story. Further,the original motive for the crime was a dispute arising from keeping ofjewellery by the deceased with her sister, whereas the statement ofprosecution witnesses established that the jewellery had been returnedH

STATE OF MADHYA PRADESH v. PHOOLCHAND RATHORE[MANOJ MISRA, J.]

much before the incident, therefore, there existed no cogent motive forthe crime. In paragraph 40 of the judgment, the High Court observedthat the recovery of blood-stained clothes and stones was doubtfulbecause the seizure witness Shiv Kumar Rathore (PW6) hadcategorically denied seizure of those articles in his presence and hadstated that his signatures were obtained at the police station. Moreover,the evidence recorded revealed that the accused was arrested in thenight of 01.02.2010 itself. The High Court also noticed that the FSLreport Ex.P-35 could not confirm the blood group on the clothes as tomatch it with the deceased. Otherwise also, once the seizure of articlesbecame doubtful and as per the statement of PW4 the accused hadwashed off those clothes and had kept them in the house to dry, theentire prosecution story in respect of seizure of blood-stained clothesfrom the hut was rendered doubtful. Taking a conspectus of thecircumstances highlighted above, the High Court opined that the caseset up by the prosecution appeared extremely unnatural and hard tobelieve. The High Court therefore discarded the circumstance of seizureof stones and blood-stained clothes from the hut of the accused andupon finding that there were glaring contradictions in the prosecutioncase, irreconcilable in nature, gave the benefit of doubt to the accused.

14. We have heard learned counsel for the parties and have perusedthe record.

Submissions on behalf of the Appellant

15. The learned counsel for the appellant submitted that this is acase where a daughter has deposed against her own father. The testimonyof PW-4 is straightforward and coupled with other evidences establishesbeyond doubt the following:

(i) that there used to be fights/quarrels between the deceasedand the accused;

(ii) that on the fateful day, there was a quarrel between thetwo; and

(iii) that soon after the quarrel the deceased was taken on abicycle by the appellant to the field and shortly thereafternear the hut/field of the accused, on a railway track, thedeceased was found in a seriously injured state suggestingthat she was badly assaulted.

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A16. It was argued that the High Court wrongly discarded the entirestatement of PW4 upon noticing that she was not truthful on certainaspects, namely, — the accused had returned alone from the field wearingblood-stained clothes, changed his clothes in the house, washed themand made an extra judicial confession to PW4. It was contended thatfalsus in uno, falsus in omnibus doctrine is not applicable in IndiaBtherefore, the High Court ought to have severed the unreliable part fromthe remaining part, noticed above, and examine whether the remainingpart on its own could sustain conviction, particularly, when there was noexplanation forthcoming from the accused as to where he was duringthat period and how his wife sustained those injuries. It was argued thatCthe evidence that the accused took the deceased on cycle to the fieldand shortly thereafter, near the field, in between railway tracks, thedeceased was found with multiple injuries, by itself, in absence of anyexplanation from the accused as to when he parted company of thedeceased, was sufficient to record conviction.D17. In addition to the above, the learned counsel for the appellantsubmitted that it is a case where the deceased had died at around 2000hours on 01.02.2010, the FIR was promptly lodged at 2130 hours narratingthe circumstances in which the incident occurred and those circumstanceshave been confirmed by the testimony of prosecution witnesses therefore,even if subsequent story of confession/recovery is discarded, the provenEcircumstances by itself form a chain so complete as to sustain convictionof the accused as justifiably recorded by the trial court. Consequently, itwas prayed, the judgment and order of the High Court be set aside andthe Trial Court’s judgment and order be restored.

Submissions on behalf of the respondent -accusedF

18. Per contra, the learned counsel for the respondent submittedthat the view taken by the High Court is a plausible view and is notperverse as to warrant an interference under Article 136 of theConstitution of India. It was urged that the High Court is a final court offact and the view of the High Court is not in ignorance of any evidenceGor 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 awhole, does not inspire confidence as it is found unreliable on several aspects therefore, being the sole witness of the circumstance that thedeceased was taken from home by the accused, could not on its ownform the basis of conviction. More so, when the original motive stoodnot proved giving rise to possibility of false implication on account ofproperty dispute with informant (PW2) as would be clear from thestatement of PW8, which possibility gains support from the statement ofthe Investigating Officer (PW11) that he had known the informant (PW2)from before. More so, when a false arrest/disclosure and recovery wasset up. It was also argued that the public witnesses examined by theprosecution have disclosed about the arrest of the accused in the nightitself whereas, the police witnesses have tried to disclose his arrest onthe next day leaving them opportunity to plan a case against him. For allthe reasons above, it was prayed, the view taken by the High Court is aplausible view, not liable to be interfered.

Discussion and Analysis

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 asto when it would be appropriate for this Court, exercising its powerunder Article 136 of the Constitution of India, to reverse an acquittal intoa conviction. Normally, the Court is reluctant to interfere with an orderof acquittal. But when it appears that the High Court has on an absolutelywrong process of reasoning and a legally erroneous and perverseapproach to the facts of the case and ignoring some of the most vitalfacts, acquitted the respondent and the order of acquittal passed by theHigh Court has resulted in a grave and substantial miscarriage of justice,extraordinary jurisdiction under Article 136 of the Constitution of Indiamay 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:

“8. … This being an appeal against acquittal, this Court would beslow in interfering with the findings of the High Court, unlessthere is perverse appreciation of the evidence which resulted inserious miscarriage of justice and if the High Court has taken aplausible view this Court would not be justified in interfering withthe acquittal passed in favour of the accused and if two views arepossible and the High Court had chosen one view which is just 1 (1982) 1 SCC 352

2 (2005) 3 SCC 169

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Aand reasonable, then also this Court would be reluctant to interferewith the judgment of the High Court.”

22. In a recent decision rendered by this Court in Basheera Begamv. Mohd. Ibrahim & Others[3], it was observed:

“190. … Reversal of a judgment and order of conviction andBacquittal of the accused should not ordinarily be interfered withunless such reversal/acquittal is vitiated by perversity. In otherwords, the court might reverse an order of acquittal if the courtfinds that no person properly instructed in law could have uponanalysis of the evidence on record found the accused to be “notCguilty”. …”23. Seen in light of the decisions above, we would examine whetherthere is any perversity in the view taken by the High Court while convertingconviction into an acquittal. Admittedly, this is a case based oncircumstantial evidence. There is no direct eye witness account of themurder. The body of the deceased was not found within the confines ofDher house but in the open on a railway track. In such circumstances tosustain a conviction the court would have to consider — (i) whether thecircumstances relied by the prosecution have been proved beyondreasonable doubt; (ii) whether those circumstances are of a definitetendency unerringly pointing towards the guilt of the accused; (iii) whetherEthose circumstances taken cumulatively form a chain so far completethat there is no escape from the conclusion that within all human probabilitythe crime was committed by the accused; (iv) whether they are consistentonly with the hypothesis of the accused being guilty; and (v) whetherthey exclude every possible hypothesis except the one to be proved.

24. We shall now examine as to what were the circumstancesFrelied 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 theevidence on those circumstances with a view to find out whether thereis any perversity in its view/ reasoning warranting an interference. Inthe instant case, the prosecution relied on the following circumstances:G(a) Motive; (b) Disclosure Statement and Recovery; (c) Extra JudicialConfession; and (d) Accused taking the deceased with him and soonthereafter the deceased was found in an injured state. We shall examineeach of these circumstances, separately, herein below—

(i) Motive:

(i) Motive:

According to the prosecution, the appellant and thedeceased used to quarrel because the deceased had kepther jewellery with her sister. However, the above reasonfor the quarrel was not found proved because the prosecutionevidence led revealed that the jewellery had already beenreturned back much before the date of the incident.Therefore, to prove motive, during trial, prosecutiondeveloped another story, which is, that the appellant desiredhis wife to claim a share in her ancestral property whichresulted in quarrels. This motive neither appealed to theHigh Court nor to us because, firstly, it was an improvementin the prosecution story; secondly, not much evidence waslaid to substantiate the same; and, thirdly, if the wife is killedhow could her husband derive interest in the property. Thus,in our view, the prosecution failed to prove the motive setout by it. No doubt absence of motive by itself may not besufficient to dislodge the prosecution case if the other provencircumstances could form a chain so complete as to indicatethat in all human probability it is the accused and no oneelse who committed the crime but, in a case based oncircumstantial evidence, motive plays an important part.Because, not only it makes the story believable but alsohelps the court in fortifying an inference which may bedrawn against the accused from other attendingcircumstances.

(ii) Disclosure Statement and Recovery

The prosecution placed heavy reliance on recovery ofblood-stained clothes and stones from the hut of the accusedon the basis of disclosure made by him. The disclosure aswell as recovery has been refuted by the accused as alsoby PW-6 who is a witness to it. The High Court has noticedthat there is material contradiction in the statement ofprosecution witnesses with regard to the time when theaccused was arrested. The public witnesses examined bythe prosecution indicated that the accused was arrested inthe night of 01.02.2010 itself, whereas the police witnesses/documents disclosed his arrest on 02.02.2010 at 1240 hours A

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at Seoni Trisection. What may be interesting is the timesequence of arrest, recording of disclosure statement andpreparing of recovery memos.

According to police witnesses and papers, the arrest waseffected on 02.02.2010 at 1240 hours; the disclosurestatement was recorded on 02.02.2010 at 1300 hours andrecovery was effected on 02.02.2010 at 1400 hours. Thearrest of the accused was shown from a place known asSeoni Trisection whereas the public witnesses including PW4stated that the accused was arrested in the night of01.02.2010 from a Nala (drain) where he was hiding withan axe. The disclosure statement, as per the memorandum(Ex.P-9), was prepared at Seoni Trisection and witnessedby PW6; the recovery memo (Ex.P-10), as permemorandum, was prepared at Phoolchand’s (accused’s)hut near railway line in Model village at 1400 hours and thesame too, was witnessed by PW6. Interestingly, PW6 isthe only public witness of disclosure and recovery to beexamined and he has not supported the prosecution case.What is even more interesting is that the other seizurememorandum prepared in respect of lifting blood-stainedsaree, gravel, slippers etc. from near the railway line, thatis the spot from where the deceased was lifted, wasprepared at 1400 hours on 02.02.2010. How could it bepossible that the police prepared two memorandums at thesame time at different places. The answer to it lies in thetestimony of PW6, a witness to both, who stated that hewas made to sign the papers at the police station. Meaningthereby that all papers were prepared at one go renderingthe entire exercise of disclosure and consequentialdiscovery/recovery doubtful. Not only that, there appearsno cogent reason for the accused to carry stones from thespot and hide them in his hut while leaving several blood-stained stones near the railway line. In such circumstances,it appears to us that those stones were picked from thespot near the railway track to show recovery from the hut.Insofar as the recovery of blood-stained clothes isconcerned, in addition to the above reasons, the same isdoubtful also because of the statement of PW4 (Madhuri)

that her father on return had washed those clothes and hadspread them to dry over the cattle shed in the housetherefore, how could they be recovered from the hut. It benoted that the house is shown located in the village, whereasthe hut is shown in the field at quite a distance from thehouse. For all the reasons above, the High Court wasjustified in doubting the recovery of blood-stained clothesetc. at the instance of the accused from the hut and on thebasis of a disclosure statement made by him.

(iii) Extra Judicial Confession to PW4

The alleged extra judicial confession made by theaccused to PW4 was neither disclosed in the FIR nor in theprevious statement of PW4 made during investigation. PW4was confronted with that omission during her deposition incourt. That apart, the testimony of PW4 with regard to theaccused returning home, making extra judicial confession,changing clothes, washing blood-stained clothes andspreading them to dry has been found unreliable and shakyby the High Court for cogent reasons extracted above, whichdo not appear perverse as to warrant an interference. Thus,the circumstance of extra judicial confession is also notproved beyond doubt.

(iv) Accused taking the deceased from home on a bicycle

(iv) Accused taking the deceased from home on a bicycle In respect of this circumstance, the only evidence is ofPW4 i.e. the daughter of the accused and the deceased.Her evidence has been doubted by the High Court, interalia, on the ground that the two witnesses Ganga Bai (PW1)and Sushila (PW12) have not supported her statement. PW4stated that when she followed her parents who were goingon a bicycle she met Sushila (PW12) and she narrated theincident to her. PW12, who appeared as a witness, deniedhaving met PW4 on that fateful day. Similarly, Ganga Bai(PW1) who were to corroborate PW4 on that aspect wasdeclared hostile. Even, if we assume that the testimony ofthose two witnesses would not damage the testimony ofPW4 as they may have their own reasons for not supportingthe prosecution case yet, when we peruse the detailedreasons recorded by the High Court in its judgment (i.e.

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paragraphs 31 to 35 thereof) to hold that the testimony ofPW4 is not of a stellar quality as to merit conviction solelyon its basis, we find no such perversity in the High Court’sconclusion as may warrant a reversal of acquittal into aconviction in exercise of jurisdiction under Article 136 ofthe Constitution.

The argument that doctrine falsus in uno, falsus inomnibus is not applicable in India hence PW4’s testimony,even if not acceptable on certain aspects, could be relied toprove other circumstances, is not acceptable because theHigh Court, on basis of analysis of the entire evidence, hasdiscarded 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 truthfrom the falsehood of her statement.’’

Further, even if we accept PW4’s testimony that theaccused, on that fateful day, took the deceased on a bicycleto the fields that by itself is not conclusive to indicate thathe took her to kill her; because, admittedly, the accusedheld agricultural holding and it is quite possible that he mayhave taken his wife to assist him in the agriculturaloperations. It is common practice in villages for ladies tohelp their menfolk in agricultural operations. The allegationthat while taking her a declaration was made that she wouldbe killed does not inspire our confidence for the reason thatthe motive set out by the prosecution for such a quarrel hasnot been proved. Otherwise also, quarrels and disputesbetween husband and wife are every day phenomena andnot such an event which may create a strong suspicion ofan impending crime much less murder. More so, where, asin the present case, marriage is subsisting since long withchildren out of the wedlock. Further, this circumstance byitself is not so clinching as to conclusively point towards theguilt of the appellant by ruling out possibility of a third-partyhand in the murder. In this regard, it be noticed that, as perthe prosecution case, the deceased was found injured ataround 2000 hours in an open area at some distance from the hut of the accused. At what time the accused had takenAthe deceased on his bicycle is not clear from the testimonyof PW4 though, from the first part of her testimony, itappears that the accused and the deceased were noticedquarrelling with each other at about 1630 hours and soonthereafter, the appellant took the deceased on his cycle. If,Bfrom that, we put the event of taking the deceased on bicycleat about 1630 hours there is still quite a large time-gapbetween 1630 hours and 2000 hours for other interveningfactors to operate. In light thereof, considering that the placeof occurrence was an open place and the othercircumstances (i.e. motive, disclosure, recovery and extraCjudicial confession) were not proved beyond reasonabledoubt, shifting the burden on the accused to explain thecircumstances in which the deceased sustained injuries, orto demonstrate that he parted company of the deceased,would not be justified in the facts of the case.

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