Judgment:
A.R. Tiwari, J.
1. This appeal has been presented against the original order of acquittal rendered on 11th December, 1991 by the First Addl. Sessions Judge, Shajapur in Sessions Trial No. 175/91.
2. The factual matrix lies in narrow compass. The deceased Panubai was the wife of the respondent. On 24-5-1991, the respondent took the deceased to her parental home on a cycle. Near Village Badoli, the deceased fell down from the cycle as a result of which the respondent assaulted her. The respondent, therefore, fled away from the spot. On receiving the intimation of this incident, Bherusingh (PW 1), the son-in-law of the deceased came on the spot and brought the injured Panubai in a bullock-cart to his home. The next day, a report was made by this victim off this assault marked in this case as Ex. P/6. She was sent to the hospital from the Police Station thereafter. At night of the same day, she succumbed to the injuries. The autopsy was conducted by PW-4 Dr. Vijay Kumar Singh whose report is Ex. P/2. The spot map Ex. P/10 was prepared. The weapon of assault was seized. After recording the statements of the witnesses and completing other formalities, the challan was filed in the Court. The case was, thereafter committed for trial. The Sessions Court framed the charge under Section 302 of the Indian Penal Code to which the respondent pleaded not guilty. In answer to question put under Section 313 of the Code of Criminal Procedure, the respondent took the plea that Panubai sustained injuries as a result of fall from the cycle. Bherusingh armed with a FARSI had come to the spot to beat the respondent as a result of which, he ran away from the spot. He pleaded the he was implicated in this case due to pre-existing enmity with Bherusingh (PW 1). On evaluation of evidence, the trial Court did not find the charge proved and thus, acquitted the respondent.
3. Aggrieved by this verdict, the State; Government has filed this appeal after obtaining the requisite leave from this Court.
4. We have heard Shri S. S. Swami, learned Panel Lawyer for the State and Shri Lokesh Bhatnagar as amicus curiae for the respondent. The respondent was also produced from the Jail under proper custody. He too was heard.
5. Shri Swami submitted that the trial Court has not appreciated the facts and circumstances in their proper perspective and the conclusion reached by it is not on firm foundation. He, therefore, prayed for reversal of the judgment and appropriate sentence. Shri Lokesh Bhatnagar, on the other hand, supported the impugned judgment and urged that there was no illegality or infirmity in the judgment. There being no perversity, the judgment is noh-interferable in this appeal. He prayed for dismissal of the appeal.
6. We proceed to examine the merits of the matter.
7. The trial Court, on evaluation of evidence entertained considerable doubt on the entire wrap and woof of the prosecution story and listed grounds, prodigious in number, in support of the impeccability of the respondent. Grounds are tersely stated below --
(i) The deceased Panubai (wife of the respondent) was found in an unconscious state by PW. 1 Bherusingh (son-in-law of the deceased) and was not in a position to speak.
(ii) The authorship of FIR lodged belatedly next day, Ex. P/6 came under the cloud of suspicion in view of the aforesaid twin factors.
(iii) The oral dying declaration, said to be made to Chaukidar Ramsingh (PW 5) at the house of the deceased, lacked varity due to same reasons.
(iv) The alleged eye-witnesses (PW 2 Rameshwar aged 12 years, PW 5 Monisingh and PW 6 Babu) were not trustworthy.
(v) The medical evidence did not cogently establish that the death was homicidal in nature.
(vi) In post mortem report (Ex. P/2), there is a mention about the presence of semi-digested food. The incident is said to have occurred at 12.00 noon on 24-5-1991. The death took place at 10-33 p.m. on 25-5-1991 i.e. after about 34 hours. PW 1 Bherusingh stated that she was not able to swallow even water: That being so, the contention about place and time of incident also seemed to be spurious.
(vii) The motive, albeit slipping into insignificance, as suggested was the dispiteous disposition emanating from the intolerable event of slide from the cycle and this was at once unnatural and unsound.
8. The question; which is prone to play like a conundrum on the canvas of the mind, is as to what was the earthy reason for a husband to kill his wife while on way to her parental home on a cycle? Would one opt to indulge in indomitable assault, without any apparent cause, in this fashion? There was not an iota of evidence to suggest any strain in connubial relations. It was also not stated that the respondent at the relevant time was in an inebriated state.
9. In the face of these peculiar circumstances, the evidential material needed scrupulous scrutiny in juxtaposition of salient features as chronicled above.
10. Let us begin at the beginning. Ex. P/6 FIR was ex facie incredulous. Firstly : It did not tear up the tenebrosity as to why it was delayed by 30 hours. Secondly : The version that son-in-law on acquisition of information came on the spot is not consentient with the statement of PW 1 Bherusingh to the effect that she was found unconscious. Thirdly : The cause was mainfestly meagre. Fourthly : It seemed to be conjectural obviously orchestrated by PW 1 due to hostility, as admitted in para 4 of his statement, with the respondent. Fifthly : The physical, if not mental, condition ruled out the possibility of such a lodgement of report and Sixthly : PW 3 Ram Singh admitted that report was made by PW 1 Bheru (para 3). Seventhly : The scribe has not been examined. In view of these features, it would be extremely hazardous to place reliance on Ex. P/6.
11. The Statements of PW 2 Rameshwar, PW 5 Manisingh and PW 6 Babu do not inspire confidence. The trial Court has noted the infirmities and inconsistencies which were not liable to be dismissed as minor or inconsequential. Then there is additional fact of omission of the names of these witnesses even in belated FIR (Ex. P/6). And later document like Spot-map (Ex. P/10). The trial Court doubted their presence on the spot. The inbred inference deducible is that these persons have been introduced as eye-witnesses in an urge to bolster up the case. The contrivance is discernible.
12. PW 3 Ramsingh is equally perjurer. He, in fact stated altogether a different cause (para 2). PW 7 Koksingh and PW 8 Kanhaiyalal have not supported the prosecution story as regards disclosure and recovery. PW 9 Amarsingh, Investigator, does not explain the delay in arrest (Ex. P/3 dated 29-5-1991), of the respondent.
13. PW 4 Dr. Vijay Kumar conducted the autopsy and opined in report Ex.P/2 as under :--
'Deceased got injury to chest which caused phamothorax. She came very late to hospital. Due to phamothorax, both lungs collapsed- Respiratory failure-Death Homicidal.'
And he swears that the cause of death might as well be natural (para 8). He found no red-marks in the injuries. He stated that such types of phamothorax are seen in accidental cases.
14. There are yet two more features that stare in the face and speak about the debility. One : If Panubai was thrashed like this on thoroughfare, by means of a truncheon, then she would have naturally screeched so as to attract others and make them rush to rescue. Nothing of the sort is said to have been done. Two : The prosecution has not proved compliance of Section 157 of the Code of Criminal Procedure, as regards FIR Ex. P/6. This delivered further dent on the story.
15. The presumption of innocence is a basic tenet of our criminal jurisprudence. Their Lordships of the Supreme Court in the case of State of M. P. v. Manoharlal, AIR 1981 SC 2973, stated in classic terms, that in matters involving personal liberty of an individual, the' appellate Court's duty is not to adopt a 'computerised approach' but screen, scan and sift evidence diligently and critically. In the instant case, we, in discharge of our duties on the same lines, noticed that the features, noted above, have foiled the story and rocked the subsium of the case. To put it in a nutshell, it was an unconvincing tale unconvincingly told.
16. The statement of PW 5 Ramsingh constituted oral dying declaration. The principle on which dying-declaration is admitted in evidence is 'Nemomoriturus praesumitur mentire' meaning thereby that a man will not meet his maker with a lie in his mouth. However, the 'state of unconsciousness' and 'liability to speak' are two factors, almost invincible, snatching from the statement its usual redolence. We, therefore, remained unimpressed.
17. Late arrest also introduced extra element of suspicion which the prosecution failed to dispel. In 1988 MPLJ 241, Dheersingh and Anr. v. State of M. P., it is held that --
'Even though appellant Bishambhar Singh was available he was not taken into custody and arrested before 4-12-1982. Investigating Officer Abhai Singh Kushwah (PW 8) could not furnish any explanation for it and he falsely stated that the appellant Bishambhar Singh was absconding.' -X- -X- -X-
18. As noted above, it is inutile and futile to contend that the trial Court committed any error or that its finding was on infirm foundation. Apart from this, it may additionally be borne in mind that the powers in appeals against acquittals are circumscribed by well-established constraints. In AIR 1987 SC 1083, Total Singh and Anr. v. State of Punjab, it is laid down as under --
'The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous.' -X- -X- -X-
19. The position emerging from the cumulative effect of all facts and circumstances, is that there is no acceptable much less sufficient, evidence connecting the respondent with the crime as foisted upon him. It is apt to remember the principle that 'fouler the crime higher the degree of proof'. The story as put forward is apocryphal. Testing the facts and features on the principles of law, as noted above, it can be unhesitatingly said that the case is deretricious. In the ultimate analysis, we feel acquiescent that this appeal merits the fate of dismissal. In the face of appeal being acarpous, ambroglic of the respondent should come to an end.
20. Ex consequent we dismiss the appeal and maintain the verdict of acquittal. The respondent is in custody. He is, therefore, directed to be set at liberty forthwith, in case his detention is not required in any other case.