Nesar Ahmed and anr. Vs. State of Bihar - Court Judgment

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criminal - evidence - sections 34 and 302 of indian penal code, 1860 - appellants tried and convicted under sections 34 and 302 for causing death of deceased - allegation against appellant no. 1 that he did not want to return money taken by him from deceased's father - no evidence that appellants were present at home at crucial time when deceased got burn injuries resulted in her death - prosecution not established guilt of appellants beyond reasonable doubt - in such circumstances benefit of doubt must go to appellants - conviction recorded against appellants by trial court and high court set aside. - section 30: [s.b. sinha & cyriac joseph, jj] setting aside of award arbitrator taken into consideration ultimate contract and found that four letters which were said to be sole repository of contract formed part thereof - on the basis of said letters arbitrator concluded in respect of first claim of contractor that concluded contract took place and he was entitled to additional payment of 2.25% over and above quoted rates - similarly in relation to claim no.2 arbitrator found that fact that claimant received payment only at rate of 21% towards labour escalation would not preclude claimant from claiming at 40% as per contract, particularly, when it was clearly mentioned in one of the letters that 40% will be labour component which forms part of contract held, high court setting aside of said award is illegal. section 30: [s.b.sinha & cyriac joseph,jj] setting aside of award extra payment of labour involved in construction of high rise building - dispute as to held, what would constitute a high rise building was defined. a portion of the building cannot be high rise and a portion would fall within the purview of the said definition. the opinion of the arbitrator that the same workers may have to work for constructions of the entire building as it will be impossible for any contractor to employ any workmen to work exclusively for the high rise building was proper. furthermore, the same workmen may have to work in different parts of the same building at different times. it would lead to an absurd situation if the workmen at one point of time are not paid the 20% of the excess amount and then paid the same and yet again denied the same benefit. - 2. that the appellants (as well as the acquitted accused) were ill-treating the deceased and had beaten her on certain previous occasions; 8. failure of appellant no. all other circumstances taken together may point a finger of suspicion towards the appellants but suspicion, howsoever, strong cannot take the place of proof.1. this appeal by special leave is directed against the judgment of the high court of bihar dated 14th december, 1990 confirming the conviction and sentence of the appellants for an offence under section 302/34 ipc.2. on the basis of a fardbayan recorded on the statement of anjira khatoon -pw-3, sister of the deceased, at about 8.30 pm on 16th april, 1986, investigation was taken in hand and at the conclusion of the investigation, the appellants along with two others (father and sister-in-law of appellant no. 1) were tried for offences under sections 302/ 34 ipc and section 201 ipc. the trial court, vide judgment dated 3rd october 1988 acquitted all the four accused for the offence under section 201 ipc but convicted them for offences under section 302/34 ipc and sentenced them to undergo life imprisonment. on appeal, the high court acquitted the father and sister-in-law of accused no. 1 by giving them benefit of doubt vide judgment dated 14th december, 1990 but maintained conviction and sentence of both the appellants -- husband and mother-in-law of deceased aheleya khantoon.3. there is no eye witness in this case. the entire case is based on circumstantial evidence. it is settled law that, in a case based on circumstantial evidence, before the court can record conviction, it must satisfy itself that circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but also complete the chain so fully as to unerringly point only to the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused. it is on the basis of these principles that we shall examine the circumstantial evidence relied upon by the prosecution in this case.4. the circumstances relied upon by the high court to bring home the charge to the appellants, as can be culled down from the judgment of the high court, are:1. that appellant no. 1 had borrowed rs. 10,000/- from his father-in-law (father of the deceased) to defend himself in a murder case and mother of the deceased was pressurising him to return the money; 2. that the appellants (as well as the acquitted accused) were ill-treating the deceased and had beaten her on certain previous occasions; 3. that the dead body of the deceased was found from the house occupied by the appellants; 4. medical evidence; 5. that at about 10 am both the appellants were seen going out of their house along with the one year old child of the deceased; 6. that appellant no. 1, had disclosed to pw-6 and pw-9 at 4.00 pm that his wife (the deceased) had died at 11 am by burning; 7. the unsubstantiated plea of alibi of the appellants, and; 8. failure of appellant no. 1 to report the incident to the police. 5. prosecution has led evidence to show the existence of circumstance no. 1, with a view to establish motive and circumstance no. 2 to show the previous conduct of the appellants. there is no doubt that the prosecution has established circumstance no.3. the medical evidence (circumstance no.4) also shows that the cause of death was due to burn injuries. the only evidence led by the prosecution about the time of death is the evidence of pw-6 and pw-9 (circumstance no.6).6. before we allow to link up the above circumstances, it is absolutely essential to first consider whether the prosecution has led any unimpeachable evidence to show that the appellants were present in the house where the deceased died as a result of burn injuries at the crucial time. in our opinion, if it is found that the presence of the appellants at the crucial time has not been established in the house, all other circumstances would not complete the chain of circumstantial evidence to lead to any irresistible conclusion consistent only with the hypothesis of the guilt of the appellants and inconsistent with their innocence.7. according to the statement of the first informant - pw -3, anjira khatoon, at about 10am, on the fateful day, she saw both the appellants going towards the west of the village along with the daughter of her sister, deceased aheleya bibi. in answer to question no. 3, recorded under section 313 cr. p. c., both the appellants stated that the deceased got burnt while cooking food and that at that time they were at their new house.8. pw-6, avtaar khan, deposed in his examination-in-chief itself that on the fateful day, he was present at his shop at 4pm when appellant no. 1 came and disclosed to him that his wife had burnt herself to death at about 11 am. to the same effect is the statement of pw-9, jahenuddin khan, who also deposed that he learnt from appellant no. 1 that his wife had died at about 11 am by burning.9. the prosecution has come out with a positive case through pw-3 that the appellants left the house and went towards the west side along with one year old child of the deceased at 10 am. this aspect of the prosecution case probabilises the plea of alibi set up by the appellants. the fact that one year old child of the deceased was taken away by the grandmother (appellant no. 2) is not inconsistent with the theory that the deceased was cooking food when appellants left their house at about 10 am and took the little baby with them, since, there was no one else in the house to take care of the child while the deceased was cooking food. if the deceased died at about 11 am as per the evidence of pw-6 and pw-9, then in all probability the appellants who had left the house at 10 am as per the statement of pw-3, were not present in their house at the crucial time because the prosecution has led no evidence to show that the appellants returned to their house or that at the crucial time, they were present in the house. the courts below fell in error in holding that the plea of alibi, which has been supported by the prosecution evidence itself, was false and that circumstance no. 7 by itself established the prosecution case. as already noticed, previous quarrels between the parties, as also the refusal of appellant no. 1 to refund the loan of rs. 10,000/- taken from his father-in-law to defend himself in a murder case, may have an element of truth but it cannot be said that those circumstances are so clinching as to negate the reasonable hypothesis inconsistent with the innocence of the appellants. establishment of circumstance no. 5, coupled with the evidence of pw-6 and pw-9 creates a reasonable doubt about the presence of the appellants in their house at the crucial time and, thus, a very vital link to complete the chain of circumstantial evidence becomes extremely doubtful. all other circumstances taken together may point a finger of suspicion towards the appellants but suspicion, howsoever, strong cannot take the place of proof.10. the deceased was aged 22 at the time of her death. according to the medical evidence she died of burn injuries. it is an unfortunate case. but for what we have said above, we do not find it possible to hold that the prosecution has established the guilt of the appellants beyond a reasonable doubt. the chain of circumstantial evidence is not so complete as to be consistent only with the hypothesis of the guilt of the appellants. the benefit of doubt, under the circumstances, must go to the appellants,11. we, therefore, allow this appeal and set aside the conviction and sentence recorded against the appellants.12. the appellants are on bail. their bail bonds shall stand discharged.