GUNA MAHTOversusSTATE OF JHARKHAND

782                      [2023]REPORTS
               SUPREME COURT    3 S.C.R. 782                [2023] 3 S.C.R.


A                               GUNA MAHTO
                                        v.
                           STATE OF JHARKHAND
                        (Criminal Appeal No. 108 of 2012)
B                               MARCH 16, 2023
                 [B. R. GAVAI AND SANJAY KAROL, JJ.]
             Penal Code, 1860 : ss. 302, 201 – Murder – Prosecution case
      that husband murdered his wife and dumped her dead body in well
      to cause disappearance of evidence and later lodged missing report
C
      with the police – Conviction u/ss. 302 and 201 by the courts below
      – On appeal, held: Non-examination of the Investigation Officer
      has, in the attending circumstances rendered the prosecution case
      to be doubtful if not false – Offence u/s. 201 could not have been
      proven without his examination – Courts below presumptively,
D     proceeded with the acquired assumption of the guilt of the accused
      for the reason that he was lastly seen with the deceased, and lodged
      a false report, forgetting that as per the version of the father of the
      deceased, father of the accused had himself apprised him of his
      missing daughter, at least two days prior to the incident – Doubt
      and suspicion cannot form basis of guilt of the accused –
E
      Circumstances linking the accused to the crime are not proven at
      all, much less beyond reasonable doubt – There is no evidence-
      ocular, circumstantial or otherwise, which could establish the guilt
      of the accused – There is no discovery of any fact linking the accused
      to the crime sought to be proved, much less, established by the
F     prosecution beyond reasonable doubt – Courts below erred in
      passing the order of conviction based on incorrect and incomplete
      appreciation of evidence, causing serious prejudice to the accused,
      also resulting into travesty of justice, thus set aside.
            Sharad Birdhichand Sarda v. State of Mahrashtra
G           (1984) 4 SCC 116 : [1985] 1 SCR 88; Venkatesh v.
            State of Karnataka 2022 SCC OnLine SC 765;
            Shatrughna Baban Meshram v. State of Maharashtra,
            (2021) 1 SCC 596; Pappu v. State of Uttar Pradesh
            (2022) 10 SCC 321; Hanumant Govind Nargundkar v.
            State of M.P. (1952) 2 SCC 71; Ramaphupala Reddy v.
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                                       782
           GUNA MAHTO v. STATE OF JHARKHAND                                  783


      State of Andhra Pradesh (1970) 3 SCC 474; Balak Ram                    A
      v. State of U.P. (1975) 3 SCC 219 : [1975] 1 SCR 753;
      Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC
      217 : [1983] 3 SCR 280 – referred to.
                        Case Law Reference
[1985] 1 SCR 88                   referred to              Para 7            B

(2021) 1 SCC 596                  referred to              Para 16
(2022) 10 SCC 321                 referred to              Para 16
(1952) 2 SCC 71                   referred to              Para 17
                                                                             C
(1970) 3 SCC 474                  referred to              Para 18
[1975] 1 SCR 753                  referred to              Para 18
[1983] 3 SCR 280                  referred to              Para 18
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
108 of 2012.                                                                 D

      From the Judgment and Order dated 23.07.2004 of the High Court
of Jharkhand at Ranchi in CRLA No. 214 of 2001.
      Veer Pal Singh, V. N. Raghupathy, Advs. for the Appellant.
      Gopal Prasad, Adv. for the Respondent.                                 E
      The Judgment of the Court was delivered by
      SANJAY KAROL, J.
       1. The present criminal appeal is filed by appellant Guna Mahto,
found guilty of murdering his wife Smt. Deomatiya Devi under Section         F
302 of the Indian Penal Code, 1860 by the Ld. Trial Court, Daltonganj in
Sessions Trial Case No. 50 of 1989 titled as State vs. Guna Mahto vide
judgement dated 10.05.2001. The Ld. Trial Court sentenced the appellant
to a term of life imprisonment under Section 302 of the Indian Penal
Code and two years rigorous imprisonment in relation to the offence
punishable under Section 201 of the Indian Penal Code.                       G

        2. On appeal, in the impugned judgment delivered by the High
Court of Jharkhand in Criminal Appeal No. 214 of 2001 dated 23.07.2004
titled as Guna Mahto v. State of Jharkhand and findings in respect to the
conviction and sentencing arrived at by the Ld. Trial Court were affirmed,
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784             SUPREME COURT REPORTS                             [2023] 3 S.C.R.


A     despite observing that the Investigation Officer was not examined by
      the prosecution. Be that as it may, the High Court solely relied upon the
      ocular evidence of Banaudhi Mahto (PW-2), Samodhi Yadav (PW-9)
      and Nandish Yadav (PW-10).
             3. Hence the present appeal filed by the appellant Guna Mahto.
B            4. It is the case of the prosecution that the accused had committed
      the murder of his wife and thereafter dumped her dead body in the well
      of the village with an intent to cause disappearance of the evidence
      related to the crime. Later, the accused approached the Police with
      unclean hands by fabricating a false story, wherein he reported his wife
C     to be ‘missing’.
             5. On 13.8.1988, the dead body of the deceased was found in the
      well of the village pursuant to which the matter was brought to the notice
      of the police and P.S. Case No. 35/1988 (Ex.P-3) registered at Manika
      Police Station, Jharkhand. Accordingly, the investigation was conducted
D     and challan presented before the Court for Trial. The prosecution
      examined ten witnesses out of whom, testimonies of Murari Ram (PW-
      1), Mithu Pd. Sahu (PW- 4), Musafir Yadav (PW-5), Munni Mistry (PW-
      6), Chitranjan Pandey (PW-8) and Sukhru Mahto (PW-7) are merely
      formal in nature. We find their testimonies, when considered
      independently or even collectively, not to point anything towards the guilt
E     of the accused.
             6. Before we deal with the merits of the case, we deem it
      appropriate, at this stage, to state the facts that are not in dispute: (a) the
      identity of the deceased, (b) the body of the deceased recovered from
      the well of the village, (c) the Post Mortem Report prepared by Dr.
F     Narendra Kumar Misar (PW-3) stating the cause of the death being
      haemorrhage and shock with injuries on the neck of the deceased.
             7. It is a settled principle of criminal jurisprudence that in a case
      revolving around circumstantial evidence, the prosecution must prove
      the guilt of the accused beyond reasonable doubt and the circumstances
G     relied upon must point out only towards one hypothesis, that is, the guilt
      of the accused alone and none else. On various occasions, this Court
      has stated essential conditions that must be fulfilled before conviction of
      an accused can take place based on circumstantial evidence. In the
      landmark case of Sharad Birdhichand Sarda v. State of Mahrashtra,
      (1984) 4 SCC 116 it has been held as under:
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           GUNA MAHTO v. STATE OF JHARKHAND                                  785
                  [SANJAY KAROL, J.]

      “153. A close analysis of this decision would show that the            A
      following conditions must be fulfilled before a case against an
      accused can be said to be fully established:
      (1) the circumstances from which the conclusion of guilt is to be
      drawn should be fully established.
      It may be noted here that this Court indicated that the                B
      circumstances concerned “must or should” and not “may be”
      established. There is not only a grammatical but a legal distinction
      between “may be proved” and “must be or should be proved” as
      was held by this Court in Shivaji Sahabrao Bobade v. State of
      Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl         C
      LJ 1783] where the observations were made: [SCC para 19, p.
      807: SCC (Cri) p. 1047]
      “Certainly, it is a primary principle that the accused must be and
      not merely may be guilty before a court can convict and the mental
      distance between ‘may be’ and ‘must be’ is long and divides vague      D
      conjectures from sure conclusions.”
      (2) the facts so established should be consistent only with the
      hypothesis of the guilt of the accused, that is to say, they should
      not be explainable on any other hypothesis except that the accused
      is guilty,                                                             E
      (3) the circumstances should be of a conclusive nature and
      tendency,
      (4) they should exclude every possible hypothesis except the one
      to be proved, and
                                                                             F
      (5) 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.”
      8. In the instant case, as we have noted earlier, the Investigation
Officer was not examined. We find that there is no evidence, ocular or       G
documentary, relating to the factum of the accused having caused the
disappearance of evidence by giving information to the police in order to
prevent himself from being prosecuted in relation to the murder of his
own wife.
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786            SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A            9. When we examine the testimony of Banaudhi Mahto (PW-2),
      father of the deceased, we notice him not to have stated anything against
      the accused in relation to the crime. He states that two days prior to the
      recovery of the dead body, father of the accused had informed him that
      the deceased had eloped with someone. But with whom? He does not
      mention. He admits that the deceased and the accused were living
B
      together and when he discovered that his daughter had not returned
      home, he lodged the report with the Police.
              10. Samodhi Yadav (PW-9), uncle of the deceased, residing in
      village Maran, only states that Ram Brijesh Yadav (co-villager) informed
      him that his daughter-in-law (the deceased) had eloped with someone
C     residing in village i.e. Maran. Since he doubted such statement, he went
      to village Janho, the place of the matrimonial house of the deceased and
      was informed that since previous evening, none had seen the deceased.
      The body of the deceased was found only on the date of recovery from
      the well of the village. He expressed his doubt, “…that accused had
D     killed his wife and had thereafter thrown her into the well”. This being
      the only statement that he made against the accused. But what is his
      source of such information, he does not disclose. In any event such a
      deposition is only in the nature of hearsay and no more, which is also
      uncorroborated. However, significantly, he admits that the accused had
      already reported the matter to the Police and that no case of ill-treatment
E     of the deceased was ever registered against the appellant.
             11. Perusal of the testimony given by Nandish Yadav (PW-10),
      son of the maternal brother of PW-2, in our considered view, is also of
      no consequence in advancing or establishing the case of the prosecution.
      He only states that, “we suspected” the role of the accused “for he used
F     to beat her often”. Elaborating further, he states that such fact was
      disclosed to him by the villagers. We find that this statement, apart from
      being in the nature of hearsay, is vague and unspecific with regard to
      time, place and manner of alleged cruelty. It is on such counts that he
      suspected the accused to have murdered the deceased. Significantly, in
G     the cross-examination part of his testimony, we notice all these facts to
      have been deposed for the first time in the Court and as we have noticed
      in the testimony of PW-9 that no complaint of ill- treatment was ever
      reported to anyone. Hence, therefore, the case of the prosecution stands
      unproven.

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            GUNA MAHTO v. STATE OF JHARKHAND                                   787
                   [SANJAY KAROL, J.]

       12. The Trial Court in its judgment, while convicting the accused,      A
heavily relied upon the statement of PW-9 and the purported statement
of the Investigating Officer which is termed as UD Exhibit marked as
Exhibit 3/1. The relevant findings in the judgment is extracted as under :
      “The deceased’s death as the post mortem report discloses was
      not due to drowning. From the evidence of P.W.9 and I.O. it              B
      appears that while the deceased was found missing then on the
      next day the villagers tried to search her dead body in the said
      well by means of Jhagar but it was not found and on the next day
      the dead body was found in the same well. So, these facts indicate
      that the deceased did not commit suicide rather she was murdered
      and her dead body was thrown in the well and the fardbeyan of            C
      the accused regarding the death of the deceased is due to suicide
      does not appear to be probable.”
       13. Similarly, the High Court, based its findings primarily on the
UD, in arriving at the factum of guilt of the accused. The Court proceeded
to add that:                                                                   D

      “The medical evidence suggests that the death took place 48 to
      96 hours prior to post mortem. Autopsy on the body of the deceased
      was done on 14th August, 1988 at about 3 P.M. as per medical
      evidence, if calculation is made, the deceased died sometime
      between 12th August, 1988 (about 3 P.M.) and 10th August, 1988           E
      (about 3 P.M.) that is why the I.O. suspected that the deceased
      was murdered at least two days before the post mortem. At least
      one day prior to the date of recovery of body, she was murdered
      and her body was thrown in the well.”
       14. It is in this backdrop, that non-examination of the Investigating   F
Officer attains significance. It is not that the Investigating Officer was
not available or that the factum and manner of investigation was deposed
by his colleague who was also associated with the same. Non-
examination of the Investigation Officer has, in the attending
circumstances rendered the prosecution case to be doubtful if not false.       G
The offence under Section 201 IPC could not have been proven without
his examination.
      15. The Courts below presumptively, proceeded with the acquired
assumption of the guilt of the accused for the reason that he was lastly
seen with the deceased, and lodged a false report, forgetting that as per
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788             SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A     the version of the father of the deceased, father of the accused had
      himself apprised him of his missing daughter, at least two days prior to
      the incident. Doubt and suspicion cannot form basis of guilt of the accused.
      The circumstances linking the accused to the crime are not proven at all,
      much less beyond reasonable doubt.
B            16. We may reiterate that, suspicion howsoever grave it may be,
      remains only a doubtful pigment in the story canvassed by the prosecution
      for establishing its case beyond any reasonable doubt. [Venkatesh v.
      State of Karnataka, 2022 SCC OnLine SC 765; Shatrughna Baban
      Meshram v. State of Maharashtra, (2021) 1 SCC 596; Pappu v.
      State of Uttar Pradesh, (2022) 10 SCC 321]. Save and except for
C     the above, there is no evidence: ocular, circumstantial or otherwise, which
      could establish the guilt of the accused. There is no discovery of any
      fact linking the accused to the crime sought to be proved, much less,
      established by the prosecution beyond reasonable doubt.
            17. It is our bounden duty to ensure that miscarriage of justice is
D     avoided at all costs and the benefit of doubt, if any, given to the accused.
      [Hanumant Govind Nargundkar v. State of M.P. (1952) 2 SCC
      71].
             18. In normal course of proceedings, this Court does not interfere
      with the concurrent finding of facts reached by both the courts below. It
E     is only in exceptional cases where we find the concurrent findings to be
      absurd, leading to travesty of justice, it is our duty to rectify miscarriage
      of justice. [Ramaphupala Reddy v. State of Andhra Pradesh, (1970)
      3 SCC 474, Balak Ram v. State of U.P., (1975) 3 SCC 219,
      Bhoginbhai Hirjibhai V. State of Gujarat, (1983) 3 SCC 217].
F            19. Hence, in our considered view, the courts below have seriously
      erred in passing the order of conviction based on incorrect and incomplete
      appreciation of evidence, causing serious prejudice to the accused, also
      resulting into travesty of justice.
             20. In view of aforesaid, we find that the order of conviction and
G     sentence passed by 5th Additional Sessions Judge, Palamau, Daltonganj
      in Sessions Trial Case No.50 of 1989 dated 10.05.2001 as affirmed by
      the High Court of Jharkhand at Ranchi in Criminal Appeal No.214 of
      2001 dated 23.7.2004 titled as Guna Mahto v. State of Jharkhand needs
      to be interfered with.
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            GUNA MAHTO v. STATE OF JHARKHAND                                 789
                   [SANJAY KAROL, J.]

      21. We set-aside the orders passed by both the courts below. Since     A
the appellant is already on bail, his bail bond shall stand discharged.
       22. Appeal stands allowed.

Nidhi Jain                                                 Appeal allowed.
(Assisted by : Tamana, LCRA)                                                 B




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