The Allahabad High Court has held that the discovery of a weapon on the disclosure of the accused is not sufficient to prove the crime. The court observed that it is important to find the weapon at the instance of the accused, but such disclosure cannot conclude that the accused has committed the offence.
A single-judge bench of Justice Suneet Kumar and Justice Dinesh Pathak passed this order while hearing a Jail Appeal filed by Chatthoo Chero.
The appeal has been filed against the order dated 22.06.2019 passed by Additional Sessions Judge, Fast Track Court, Sonbhadra, in Sessions Trial (State Versus Chatthoo Chero) under section 302 I.P.C, convicting the appellant.
As per prosecution case, the appellant/complainant lodged FIR being Case under section 302 I.P.C on 30.04.2014, at 10.05 a.m alleging that as per usual routine the family retired to sleep after dinner. The wife of the complainant/deceased (Shakuntala Chero), aged about 42 years, along with an infant child, aged about three years, went to sleep at the dhaba behind the house. The complainant and his other two sons and two daughters slept in the dhaba on the opposite side of the house.
In the morning, his son Kamlesh went behind and saw his mother (deceased) lying dead on the cot; there was blood all over and he ran and informed the complainant.
It is alleged that some unknown person caused injury on the neck by a sharp weapon. The incident occurred on the night of 29/30.04.2014. The panchnama was conducted on the same day commencing 11.10 am. The complainant is one of the witnesses to the panchnama.
As per the opinion of the witnesses, some unknown person caused injury on the neck by a ‘tangi’ (axe). Station House Officer Ravindra Bhushan Maurya along with two constables visited the site of the incident on 04.05.2014, he found the complainant present.
On interrogation, the appellant/ complainant confessed having committed the offence at about 3 am in the morning of 30.04.2014 by kulhari (axe) slaughtering the neck of his wife. The accused/complainant informed the Investigating Officer (IO) that he is prepared to recover the crime weapon which he had hidden nearby after the incident.
Accordingly, the accused/appellant was taken into custody at 13.00 hours, the IO and other officials along with independent witnesses followed the accused who recovered the axe. Post Mortem on the body of the deceased was conducted on 01.05.2014 at 3.00 p.m.
The appellant-accused on being confronted with the prosecution evidence and the incriminating documentary material, in statement under Section 313 CrPC denied the charge stating that he has been falsely implicated; wrong investigation was done; a false charge-sheet was filed; recovery of crime weapon was wrongly proved. He further stated that he had not killed his wife; he has been implicated falsely; the entire trial is based on wrong and false documents. He declined to produce any evidence in defence.
The trial court on considering the statement of the witnesses of fact, the documentary evidence and the recovery of the crime weapon at the pointing out of the appellant from his house, the presence of human blood on the axe and the clothes and other accessories of the deceased, was of the opinion that the prosecution proved the charge beyond reasonable doubt. Accordingly, convicted and sentenced the accused for life.
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The Court noted that,
The trial court convicted the appellant and held him guilty of the offence placing reliance on Section 106 of the Evidence Act. It is noted in the impugned judgment that since the offence was committed in secrecy within the house of the appellant and his presence at the relevant time is proved, the onus would shift upon the appellant to explain as to how the incident had occurred. Since no explanation was forth-coming in the statement of the appellant recorded under Section 313 CrPC, the trial court convicted the appellant.
The burden not being discharged by the accused and no explanation given by him in Section 313 CrPC statement is concerned, it is trite law that only after the prosecution discharges its burden of proving the case beyond reasonable doubt, the burden would shift on the accused. It is not necessary to reiterate this proposition of law with authorities.
The Court further noted that,
In the case, it is not the case of the prosecution witness that the accused was seen either at the room of the deceased or moving towards the room where his wife was lying or the appellant moving out of the room of his wife at about 3:00 a.m. This material circumstance was relevant which the prosecution did not prove having regard to the location of the room of the deceased as shown in the site plan.
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The Court held that the deceased was sleeping in a room which was not connected from within the house; the room was accessible to any person, including, all the family members. The room has a single door opening in the open and the road. Appellant was not seen around the room of the deceased at the time of the alleged incident. There is no motive for commission of the offence. In this backdrop to shift the burden upon the appellant under Section-106 of Evidence Act, on mere suspicion to explain how the incident happened, prosecution has primarily shifted the burden of proof upon the accused to prove his innocence. The recovery of the weapon on the pointing out of the accused is one circumstance in the chain of circumstances, but that should connect the accused with the offence, which is missing. The prosecution failed to prove that in the night between 29/30 April 2014, he alone had accessed the room of the deceased. In absence of such an evidence there is scope/room for several probabilities. Suspicion, however, grave cannot take the form of proof.
In a case based on circumstantial evidence, motive assumes great significance. It is not as if motive alone becomes the crucial link in the case to be established by the prosecution and in its absence the case of prosecution must be discarded. But, at the same time, complete absence of motive assumes a different complexion and such absence definitely weighs in favour of the accused.
The Court further held that,
Now so far as the submission on behalf of the appellant/accused that in the case the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held in Suresh Chandra Bahri v State of Bihar, that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by the Supreme Court in Babu v State of Kerala, absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused.
The recovery of the crime weapon in the facts of the case in hand was made after five days, though the accused is the complainant and was present throughout the investigation but the crime weapon has not been linked with the commission of the offence.
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“Having regard to the prosecution evidence and the testimony of the independent witness, the trial court committed an error in convicting the appellant merely on the strength of recovery of the crime weapon on the pointing out of the appellant. The finding reached by the trial court is perverse, no reference or reliance was placed on the site plan i.e. the room of the deceased was accessible to the public and not connected from inside the house. The offence, having regard to the site plan cannot be set to have been committed in secrecy of the house by the appellant. The prosecution was unable to prove that appellant alone was accessible to the room of the deceased, further, whether he was seen either accessing the room of the deceased or leaving the room at the alleged time of the commission of the offence by any other person. This was a relevant material circumstance to connect the appellant in commission of the offence. Further, motive has also not been proved which was relevant in the given case solely based on the circumstantial evidence”
-the Court observed while allowing the appeal.
“The impugned judgment and order of the conviction and sentence is set aside. The appellant Chatthoo Chero is directed to be released forthwith, if not wanted in any other offence,” the Court ordered.
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