Bhagwan Das vs State Of U.P.
2015 Latest Caselaw 2517 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									         A.F.R.
 
									  Reserved
 
Court No. 46
 

 
Case :- CRIMINAL APPEAL No. - 837 of 2010
 

 
Appellant :- Bhagwan Das
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Javed Habib,Anoop Trivedi,Dr.Arun Srivastava,Kuldeep Jauhari,M.K. Upadhyay,Om Prakash Tripathi,P.C. Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Raghvendra Kumar,J.

(Per Raghvendra Kumar, J)

1. Heard learned counsel for the accused-appellant, learned AGA for the State of U.P. and perused the material available on record.

2. Under challenge in the appeal is the judgment and order dated 2.2.2010 passed by Addl. Sessions Judge/ Fast Track Court, Pilibhit in S. T. No. 528 of 2008, State Vs. Bhagwan Das, under Sections 364, 392, 302, 201 IPC, P.S. Madhotanda, District- Pilibhit, whereby the accused- appellant Bhagwan Das has been convicted for the offence under Section 302 IPC and sentenced to imprisonment for life along with a fine of Rs. 10,000/- with default stipulation of 2 years imprisonment, further convicted under Section 201 IPC and sentenced for three years imprisonment and and fine of Rs. 5000/- with default stipulation of one year additional imprisonment, further convicted for the offence under Section 392 IPC and sentenced to imprisonment for five years along with fine of Rs. 5000/- with default stipulation of one year additional imprisonment. Vide above referred judgment dated 2.2.2010 the accused Bhagwan Das has been acquitted for the offence under Section 364 IPC.

3. Briefly stated the FIR of the incident was lodged with the police on 2.7.2008 at 10 a.m. with respect to the incident dated 26.6.2008 time unknown. The place of police station has been mentioned as 13 kms. in the FIR. According to the prosecution, Smt. Chameli Devi was priest in a temple situated in Mala Forest on Madhotanda Kalinagar road. During a fair she used to reside in the temple. Remaining time she used to live at her house situated in Village- Naokood. She was aged about 60 years. She had a fracture injury. On the pretext of treatment of the fracture, the appellant- Bhagwan Das took Chameli Devi along with Rs. 8000/- received by her in gift at his motor-cycle to Pilibhit but the appellant did not reach to any hospital. The informant made an extensive search of his mother and accused- Bhagwan Das but could not know the whereabouts. He suspected that accused- Bhagwan Das in the greed of cash, has murdered his mother and is absconding. The informant since 26.6.2008 was roaming from one police station to another but his report could not be lodged. He approached with the various police station but none of them paid heed to his request of lodging FIR and ensuring the recovery of Baba Chameli Devi and later he approached to the S.P. with an application praying for registration of the case and the recovery of his mother. Thereafter the FIR was lodged at P.S. Madhotanda at Crime No. 433 of 2008, under Section 364 IPC.

4. After registration of the FIR, the investigation proceeded. The accused was arrested on 7.7.2008 and has made a confessional statement before the police that on 26.6.2008 at about 9 hours he visited Sidhbaba Mandir within P.S. Madhotanda, then he saw Baba Chameli Devi directing for Rs. 8000/- be kept and said that if she gets any conveyance, she would go Pilibhit and get herself treated. The appellant was allured of the money and offered his service by saying that he is going to Pilibhit and she may take her service. He took Chameli Devi on his motor-cycle on the assurance that he will drop her at Pilibhit. After crossing the forest out post, then he proceeded inside the jungle, went approximately 3 / 4 km. Deep and at an isolated/deserted place in the jungle, the appellant snatched/looted Rs. 8000/- from Baba Chameli Devi. When she threatened to lodge FIR, the accused strangulated her neck by his hands and left the body there and fled away by his motor-cycle. The appellant accompanied the police party in the forest and thereafter pointed towards the skeleton and stated that it is the same corpus of Chameli Devi from whom he had snatched money on 26.6.2008. The informant-complainant Ram Gopal identified the dead body by chunni etc., which was on the dead body/skeleton and started weeping after identifying the chunni of Smt. Chameli Devi. The appellant- Bhagwan Das disclosed that he had left the dead body which was recovered on 8.7.2008. After investigation, charge sheet was submitted against the accused.

5. After adhering with the procedure, the learned trial court framed the charge against the accused- Bhagwan Das for the offence under Sections 364, 302, 201 and 392 IPC. The appellant denied the charge and claimed the trial on merits.

6. The appellant has denied the prosecution case and has stated that he was not present on the spot and he had gone on official duty. He claimed false implication.

7. To substantiate the charge against the accused, the prosecution has examined P.W.1-Ram Gopal (who has proved tahriri report and material Exts. Dhoti, Ramnami Dupatta, Mala and hairs).

8. P.W.-2- Chheddam Lal is a witness of inquest and has proved execution of inquest report and the documents prepared in connection with the post-mortem examination. He has also proved the execution of the site plan.

P.W.3 Constable Ram Das is the witness of recovery of skeleton. He has proved the exception of Recovery Memo, Inquest Report, documents prepared for autopsy and site plan.

9. P.W-4- Dr. Tejpal has conducted the post mortem examination of the skeleton. P.W.-5- Komal Singh, who has proved the execution of the site plan which was duly executed by S.I. K.P. Gautam. He has further proved the confessional statement and the recovery of the skeleton.

10. During the course of examination of the accused under Section 313 Cr.P.C. when the incriminating circumstances were put to him, then he denied and said that it all is false. He has also denied the recovery of Dhoti, Dupatta, Mala and hairs. The witnesses belongs to the same family and therefore they have falsely deposed against him. He has been falsely implicated because of the village party-bandi. A false prosecution has been launched. The accused has refused to lead any evidence in defence. He has categorically stated that he did not know the so called lady. Therefore, the question of committing of murder and loot do not arise.

11. After appreciating the evidence, the learned Court below recorded conviction of the accused. The appellant- Bhagwan Das under Section 302, 201, 392 IPC and awarded the sentence referred above.

12. Learned Court below acquitted the accused for the offence under section 364 IPC.

13. It has been submitted on behalf of the defence that no independent witness has been examined to prove that the deceased Chameli Devi was taken away by the accused for the purpose of treatment. There is no evidence about the commission of offence under Section 392 or302 or 201 IPC. Except the frivolous confessional statement alleged to have been made by the accused at the time of arrest, the time of death has not been established by the prosecution so as to connect with alleged date of taking away of the deceased. The accused has denied the prosecution version and stated that he has been falsely implicated in this case. It has been further submitted that P.W.-1 has categorically stated that in the first para of the cross examination that in his presence and in presence of his father, his mother had gone with accused- Bhagwan Das. It has been argued on behalf of the defence that there was no enmity of appellant Bhagwan Das with the deceased Baba Chameli Devi for committing the murder.

14. Refuting this submission it has been submitted by learned A.G.A.that it was the greed of Rs.8000/- which was received by the deceased as a gift from the worshippers whereby the appellant was tempted and out of greed, he has committed the offence. The aspect of motive, is thus clear and evident from the evidence and circumstance.Learned AGA has submitted that there is a confessional statement made by accused before the police. The skeleton of the lady Baba Chameli Devi has been recovered at the pointing out of the accused-appellant Bhagwan Das in the presence of P.W.-1.

15. In the instant case, the FIR was lodged on 2.7.2008 at 10 a.m. with respect to the incident of 26.06.2008, time unknown whereas the recovery of the skeleton has been made on 8.7.2008.

16. In this case, the FIR is delayed by six days. It has been argued on behalf of defence-appellant that FIR does not inspire confidence and is a concocted one. The appellant has been falsely implicated. The matter of delay in lodging the FIR has been considered by the Hon'ble Apex Court from time to time and the observations have been made by the Hon'ble Apex Court in various decisions.

17. The Hon'ble Apex Court has laid down the following proposition recently in the case of Jai Prakash Singh vs State of Bihar & Another reported in (2012) 4 SCC 379. The relevant paragraph 12 is being reproduced hereinbelow :-

"The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye- witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question."

18. Hon'ble Apex Court in the case of State of Haryana vs Gyan Chandra reported in J. T. 2001 (5) SC 1691 has been pleased to observe that :

"Delay has the effect of putting the Court on its card to search that if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not? If the prosecution fails to satisfactorily explain the delay, the delay would be fatal to prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot itself be the ground for disbelieving and discarding the entire prosecution case."

25. In Ram Dass & Others vs State of Maharashtra reported in 2007 (2) SCC 170 the Hon'ble Apex Court was pleased to observe that mere delay in lodging the first information report is not necessarily fatal to the prosecution. However, the fact that the report was lodged belatedly, is a relevant fact of which the Court must take notice. This fact has to be considered in the light of other facts and circumstances of the case.

26. In view of propositions cited above inference can safely be drawn that the delay should be explained and if, not explained even then the Court has to consider the aspect of delay in the light of totality of evidence and draw inference about the veracity of prosecution version considering the facts and circumstances of the case, which varies from case to case.

19. It is settled law that if delay in lodging the FIR cannot be explained satisfactorily it is not fatal to the case of prosecution by itself. However, it is obligatory on the part of the Court to take notice of delay and examine the same in the backdrop of the facts ,circumstances and evidence of the case as to whether any acceptable explanation has been offered by the prosecution and, if such an explanation has been offered whether the same deserves acceptance as being satisfactory.

20. Time and again it has been reiterated by Hon'ble Apex Court that even presuming the delay, the FIR cannot be discarded out rightly whereas in such circumstance the Courts are enjoined with the duty to scrutinize and appreciate the prosecution version and evidence keeping well in mind the delay aspect with extraordinary care and caution

21. It has categorically been stated in the FIR that he approached to the various police stations but the FIR could not be lodged. Subsequently, the typed FIR in the shape of an application address to the Superintendent of Police, Pilibhit was given on the Tehsil-Divas. Thereafter the FIR was registered. The explanation has been offered by the informant in his oral statement recorded in the Court. The explanation appears to be sufficient. Therefore, we are of the considered opinion that delay in lodging the FIR would have no adverse bearing on the prosecution version in the instant case.

22. It is a case based on circumstantial evidence and on the confessional statement made by the appellant before the police. How the circumstantial evidence is to be appreciated and the inference of the guilt is to be drawn against the accused-appellant is lto be considered as per law.

23. Since it is a case based on circumstantial evidence therefore before proceedings further, we would like to discuss the law regarding the standard of proof which is required under law to establish the guilt of the accused persons in such cases.

24. Hon'ble the Apex Court in the case of Sk Yusuf v. State of West Bengal reported in AIR 2011 SC 2283 in para 26 has held as under:

"Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

25. Hon'ble the Apex Court in the aforesaid case has followed its earlier pronouncements in the following cases:

"Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622, Krishnan v. State represented by Inspector of Police (2008) 15 SCC 430 and Wakkar and another v. State of Uttar Pradesh (2011) 3 SCC 306." In the case of Haresh Mohandas Rajput v. State of Maharashtra 2011 (12) SCC 56, Hon'ble Apex Court following its earlier decision in the case of Krishnan v. State represented by Inspector of Police (2008) 15 SCC 430 observed that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

"(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be definite tendency unerringly pointing towards guilt of the accused;

(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

Thus though a conviction can be based solely on circumstantial evidence, but the Court must bear in mind the aforesaid tests while deciding a case involving the commission of a serious offence.

26. Hon'ble the Apex Court in the case of Manthuri Laxmi Narsaiah Vs. State of A.P. reported in (2011) 14 SCC 117 has held in paragraph no. 6 as under:-

"6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence."

 27.	The aforementioned judgments have been followed in a recent judgment in the case of Sangili alias Sanganathan    Vs. State of Tamilnadu reported in (2014) 10 SCC 264. 
 
28.	Hon'ble the Apex Court in the case of Satni Bai Vs. State of M.P. (2010) 2 SCC 646. 
 

"11. It has been consistently laid down by this Court, that when a case rests only on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances (See State of U.P v Satish reported in 2005 SCC (Crl) 462).

29. In Joseph v State of Kerala reported in 2000 SCC (Crl) 926, the Court has explained under what circumstances conviction can be based purely on circumstantial evidence. It is observed that:

"It is often said that though witnesses may lie, circumstances will not, but at the same time, it must cautiously be scrutinised to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain, unerringly pointing to the guilt of the accused."

30. This Court in Padala Veera Reddy v State of A.P. 1991 SCC (Crl) 407 has observed that when a case rests on circumstantial evidence, the following tests must be satisfied:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

31. In C. Chenga Reddy v State of A.P 1996 SCC (Crl.) 1205 this Court has held that:

"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn, should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

32. In State of U.P v Ashok Kumar Srivastava, 1992 SCC (Crl) 241, it was pointed out that:

"9.......Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted."

"9....The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of {the guilt}."

16. The principle that would emerge from these decisions is that conviction can be based solely on circumstantial evidence, but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court."

33. In light of the above proposition, now the Court has to scrutinize the evidence and to ensure that all the ingredients required for establishing guilt against the accused in this case are satisfied ? The circumstances which appeared in the case are as following :

During the investigation the entire circumstances appear against the accused appellant. The deceased was seen alive in the company of appellant on 26.6.2008 at 9 to 10.00 A.M.in the morning. The confessional statement was made by the appellant while he was in custody which led the recovery of skeleton on his pointing out.

34. Now all the circumstances are required to be assessed whether all such circumstances stands proved and whether it cumulatively forms the chain complete in itself and unerringly indicate towards the only conclusion that is the guilt of the appellant.

35. P.W.-1 has categorically stated that Bhagwan Das took away the lady Baba Chameli Devi on his motor-cycle for her treatment. He further stated that " pwafd jkLrk dPps dk Fkk ogka dhpM+ Fkh ml dkj.k eS viuh eka pesyh nsoh dks vius firk ds lkFk iDdh lM+d rd NksM+us vk;k FkkA ml le; djhc 09 o 10 cts fnu dh ?kVuk gSA eka dks lM+d ij eksVj lkbfdy ij cSBk;k FkkA"

36. The first circumstance in the case is about the deceased lastly seen in the company of the accused on 26.6.2008 at about 9 to 10 a.m. The second circumstance of the case is regarding confessional statement of the accused recorded by the police on 8.7.2008 where afteron the pointing out of the accused the skeleton was recovered.

37. This indicates that on 26.6.2008 at about 9 to 10 a.m. in the morning the deceased was seen in the company of appellant- Bhagwan Das meaning thereby the last seen evidence is of 26.6.2008. The FIR was lodged on 2.7.2008. The confessional statement was recorded by the police, on 8.7.2008, and at the pointing of the accused, skeleton was recovered meaning thereby after 12 days of taking away of Chameli Devi, her skeleton was recovered. There is no proximity of time between last seen and the recovery of the skeleton or dead body. In our considered opinion the factum of last seen alone would not be determinative for drawing the inference of guilt against the appellant.

38. The statement of the accused appellant leading to recovery is an exception to the general principle of admission made before the police officer. Section 27 of the Indian Evidence Act, 1872 specifically states as under :

27. How much of information received from accused maybe proved- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information,whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered , may be proved.

For the application of section 27 the statement must be split into its components and to separate the admissible portion. Only those components or portion which were the immediate cause of the discovery would be legal. Reference Mohd. Inayatulla vs. State of Maharashtra, AIR 1976 483.

Thus the position becomes clear that Section 27 permits the derivative use of custodial statements in the ordinary course of events.

39. In view of the legal position settled on this aspect it can safely be inferred that confession made before the police officer leading to fact of recovery is only relevant and admissible. Only that part of confession that accused while in custody lead to a place from where the recovery was made is only admissible, even the recovery of skeleton and connecting the skeleton to dead body is to be proved or established.

40. The facts leading to recovery are admissible, the recovery is required to be established in accordance with law. Even presuming the recovery for argument sake at the instance of the accused is taken to be true, then it may be only a strong circumstance until the skeleton is not connected to the body of deceased and the time of death.

41. In the post mortem examination report, no comment was given by the Dr. about the time lapsed since death. The post mortem examination was conducted on 9.7.2008. The doctor has mentioned the number of bones of the skeleton and has also mentioned length of femur and radius bones. He has mentioned in the report Ext. Ka-10 that cause of death could not be ascertained. Hence whole skeleton preserved. In view of the post mortem examination report, no definite finding can be recorded by this Court about the date and time of the death and also regarding the cause of her death.

42. In the opening lines of cross examination, the witness P.W.-1 has admitted that " Hkxokunkl ukSxokW idfM+;k dk jgus okyk firk dk uke pqD[ku yky gSA Hkxokunkl ds fdrus [email protected] gS ugh tkurk esjk Hkxokunkl ds ifjokj es vkuk tkuk ugh gSA ekrk th gekjs lkeus fxjh FkhA esjs o firk th ds lkeus gh ekrk th Hkxokunkl ds lkFk x;h FkhA"

43. From the above admission, it is clear that there was no intimacy of the informant or his father with the appellant- Bhagwan Das. In such a circumstance, it does not appeal to the reason that P.W.-1 and P.W.-2 would allow her mother deceased to accompany with any outsider i.e. accused-appellant Bhagwan Das for the purpose of treatment. What was the handicap with the P.W.-1 and P.W.-2 for not managing her treatment with themselves that has not been disclosed. In view of the fact, we are not convinced that without any rhyme and reasons the accused was permitted to accompany Chameli Devi or to take her on his motor-cycle for treatment.

44. Thus remains the confessional statement of the appellant- Bhagwan Das who has made specific confession before the police while he was in custody. The statement is being reproduced herein under :-

**eSus ns[kk fd ckck pesyh nsoh us J)kyqvksa }kjk fn;s x;s nku ds yxHkx [email protected]&:i;s fxudj vius ikl j[k fy;s o dgk fd esjh nk< esa nnZ gS o esjs gkFk es pksV gS dksbZ lokjh fey tk; rks eSa ihyhHkhr tkdj viuk bykt djokm bl ij eq>s ykyp vk x;k vkSj eSus dgk fd esjh eksVj lkbfdy ij cSB yhft, eS ihyhHkhr tk jgk gwW bl izdkj eSus /kks[kk nsdj ckck pesyh nsoh dks viuh eksVj lkbfdy ij cSBkdj ihyhHkhr dh vksj lM+d ls py fn;k o ou foHkkx dh cjxn okyh pkSdh QkLV oSfj;j dh eksM+ ls vUnj taxy es ekyk LVs'ku dh rjQ eqM+dj yxHkx ikSu fdeh0 vUnj eksVj lkbfdy [kM+h dj drlok\ ohuus ds cgkus taxy es iwoZ dh vksj yxHkx 200 dne vanj iwoZ esa lwulku taxy ikdj ckck pesyhnkl ls [email protected]& :i;k Nhu fy;k rHkh ckck fojks/k djrs gq, dgk fd eS rqEgkjs fo:) ywV dk eqdnek fy[kokmWxh rHkh eSus viuk cpko djus ds fy, ckck pesyh nsoh dks tehu ij iVd dj nksuksa gkFkksa ls xyk nckdj ekj Mkyk o yk'k NksM+dj viuh eksVj lkbfdy ls Hkkx x;k FkkA**

45. Even presuming it to be true for argument sake it has no evidentiary value in the eye of law, we are of the considered opinion that no reliance can be placed on the confessional statement of accused before the police while he is in custody excepting facts leading to recovery. The skeleton of the deceased Baba Chameli Devi has been identified on the basis of Dhoti of soil colour, Dupatta, Mala and the hairs. Hardwari Lal was the third person in whose presence the document Ext. Ka-2 was executed and who is witness of recovery of skeleton, has not been examined. No reason has been assigned why this witness has been withheld by the prosecution. In absence of any explanation in this regard an adverse inference would be drawn.

46. The post mortem examination report simply has disclosed that the skeleton is of a female. The doctor has specifically expressed his inability to disclose the reason and the time of death for which the bones are required to be examined by forensic laboratory. No such evidence has been brought to the notice of the Court that the skeleton was sent to forensic laboratory for determination of reason and time of death. This circumstance also goes against the prosecution.

47. There is no evidence regarding the offence under Section 392 IPC. There is no evidence available on record about the time, date and place and manner of commission of offence and by whom the offence has been committed except the confessional statement of the accused. The last seen evidence also does not inspire confidence that even in the presence of P.W.-1 and P.W.-2, accused- Bhagwan Das was permitted to take Baba Chameli Devi with whom on motor-cycle for the purpose of treatment. It is settled principle of criminal jurisprudence that the accused is presumed to be innocent until otherwise is established from the evidence on record. In the instant case, no recovery of cash has been alleged from the appellant- Bhagwan Das.

48. According to the prosecution the incident took place on 26.6.2008. The FIR of the incident was lodged with the police on 2.7.2008 . On 08.07.2008 pursuant to confessional statement and at the pointing out of the accused alleged skeleton of Baba Chameli Devi was recovered, she was identified on the basis of chunni mala etc. The post mortem of skeleton was conducted on 9.7.2008. In the instant case, Baba Chameli Devi was allegedly accompanied the appellant for the purposes of treatment on 26.6.2008 and the body was recovered on 8.7.2008. There is a gap of approximately 12 days from the taking away of Baba Chameli Devi and the recovery of skeleton. The doctor in his statement categorically mentioned that during the course of autopsy only bones were found. He has categorically mentioned the numbers of bones placed before him for the purpose of post mortem examination. He thereafter stated that in examination-in-chief that it is not possible to disclose the cause of death and duration of death on the basis of the recovery of bones for which forensic examination of bones is required for assessing the cause and duration of death.

49. It is relevant to consider the observations made by Hon'ble Apex Court in case of Daryao Singh Vs. State of Madhya Pradesh, reported in (1991) 2 Supreme Court Cases 588 in this case in paragraph 7 of the judgment referring to Modi's Medical Jurisprudence and Toxicology (12 Edn.), relevant page 134, the Apex Court on point No. 5 mentioned, which is reproduced below :

 
	 Putrefactive Changes   &  Time   
 
"5. Soft parts changed into a thick semi-fluid    black mass. Skull, abdomen and thorax burst. Bones exposed. Orbits empty." 
 
				  Time: 2 to 5 months after death
 
 
 
	Modi  in his Book on Medical Jurisprudence and Toxicology (24 Edn)  Reprint 2012 on Pages 348 and 349, has discussed the duration of  the decomposition and Putrefaction of the various parts of the body of a  deceased as under :-.
 

 

(a) Larynx and Trachea : The decomposition of the larynx and the trachea coincides with appearance of the greenish colouration over the abdomen, Initially, the mucous membrane appears uniformly brownish-red without any vascular injection, but later becomes greenish and softened. Lastly , after some months, the cartilages separate from one another.

(i) Heart- The heart, because of the muscular tissues, putrefies much later than the stomach, the intestines and the liver. The organs first become soft and flabby, and the cavity appears dilated, and is usually empty containing a few gas bubbles. The organ itself can be recognised for several months.

(j) Lungs - The lungs putrefy at about the same time as the heart or a little earlier in a few cases. The first sign of decomposition in the lungs is the formation of gaseous bullae under the pleural membranes. These are at first pale red, small and scattered over the various parts of the lungs and later they coalesce. The colour of the lungs does not change with the development of these bullae, but it then changes to dark, black and green as putrefaction progresses. Later the lungs become soft, collapse, and are reduced to a small black mass, which is finally destroyed. The diaphragm resists putrefaction for a long time, and may be recognisable even after six months.

(k) Kidneys- The kidneys become brown and greenish, but retain their consistence for long , so that disease, such as nephritis and cancer, can be detected for a long time after death.

(l) Bladder- The bladder, if empty and contracted, resists putrefaction for a long time, but undergoes decomposition rapidly if it has been distended and inflamed. Within 48 hours after death, the urine in the bladder may usually contain albumin owing to the transudation of the serum albumin and globulin, usually from the blood. The prostate gland resists putrefaction for a long time and can therefore be identified when the adjoining tissues are ina state of advanced decomposition.

(m) Oesophagus - The oesophagus withstands putrefaction for a very long time, and may be recognised long after the stomach has entirely disappeared.

(n) Blood Vessels- The blood vessels, particularly large arterial trunks, resist putrefaction for a long period. The aorta may be recognised after a burial of even fourteen months.

50. Even if for the sake of argument the recovery of skeleton is presumed on the basis of confessional statement, even then we are required to assess whether in such a short duration of about 12 days, the decomposition or putrifaction of entire body is possible and the body would convert in the shape of skeleton with absolutely no flesh on it and also with no sign of presence of any other organ of the body. According to the Modi it does not appear feasible that within such short span of duration , flesh, tissues, ligaments aorta other muscular parts will disappear and convert the corpus into the shape of skeleton. Hence the duration of death does not correspond to the recovered skeleton.

51. It has been conceded by learned A.G.A.that no Government Appeal by the State or by complainant or informant has been filed against the acquittal recorded by learned trial Court for the offence under section 364 I.P.C.

52. No other point was raised before us by either of the counsels of the parties.

53. In view of the aforesaid reasons, we are of the considered view that the finding of conviction recorded by the learned court below against the appellant is not supported from the evidence available on record and cannot be sustained.

54. The appeal deserves to be allowed and is, accordingly, allowed. The appellant- Bhagwan Das is acquitted for the offence under Sections 302, 201, 392 IPC. He is in jail. He shall be released forthwith, if not wanted in any other case. The appellant has already been acquitted by the learned Court below under Section 364 IPC.

55. Let a copy of the judgment and order along with lower court record be transmitted to learned Court below for compliance.

	      ( Raghvendra Kumar, J.)	       (  S.V. S. Rathore J.)
 
	
 
Dated:-  22nd  Sep. 2015.
 
KU/Su