State of Madhya Pradesh vs Phoolchand Rathore

(f) blood-stained clothes etc. were recovered at the instance of the accused thereby making the chain complete – Trial Court convicted the accused and death penalty was awarded to the accused – High Court gave accused benefit of doubt to the accused and acquitted him – On appeal, held: Reason of the quarrel that deceased had kept her jewellery with her sister (PW8) was not found proved – As prosecution evidence revealed that jewellery was returned back – Thus, prosecution failed to prove motive – There appears no reason for accused to carry stones from the spot and hide them in his hut and leaving blood-stained stones near railway line – As far as blood stained clothes are concerned, PW4 stated that her father (accused) on return had washed those clothes and spread them to dry – How could they be recovered from hut – So, the recovery of the bloodstained clothes etc. was doubtful – Police prepared two memorandums (disclosure statement, as per the memorandum (Ex.P9), at Seoni Trisection, witnessed by PW6 and the recovery memo (Ex.P-10), was prepared at accused’s hut near railway line at the same time also witnessed by PW-6) – Both memorandums were prepared at the same time and different places, meaning all papers were signed at one go rendering the entire exercise of disclosure and consequential discovery/recovery doubtful – Alleged extra judicial confession made by the accused to PW4 was neither disclosed in the FIR nor in the previous statement of PW4 made during investigation – Extra judicial confession also not proved beyond reasonable doubt – Also, accused and the deceased were noticed quarrelling with each other at about 1630 hours and soon thereafter, the appellant took deceased on his cycle – As per prosecution deceased was found injured at around 2000 hours, there was quite a large time-gap for other intervening factors to operate – Therefore, motive, disclosure, recovery and extra judicial confession was not proved beyond reasonable doubt. Constitution of India – Art. 136 – When it appears that the High Court has on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case and ignoring some of the most vital facts, acquitted the respondent and the order of acquittal passed by the High Court has resulted in a grave and substantial miscarriage of justice, extraordinary jurisdiction under Article 136 of the Constitution of India may rightfully be exercised.

Dismissing the appeals, the Court

HELD: 1. The prosecution relied on the following circumstances: (a) Motive; (b) Disclosure Statement and Recovery; (c) Extra Judicial Confession; and (d) Accused taking the deceased with him and soon thereafter the deceased was found in an injured state [Para 24][618-G]

2. (a) Motive

According to the prosecution, the appellant and the deceased used to quarrel because the deceased had kept her jewellery with her sister. However, the above reason for the quarrel was not found proved because the prosecution evidence led revealed that the jewellery had already been returned back much before the date of the incident. Therefore, to prove motive, during trial, prosecution developed another story, which is, that the appellant desired his wife to claim a share in her ancestral property which resulted in quarrels. This motive neither appealed to the High Court nor to this Court. [Para 24 (i)][619-A-C]

(b) Disclosure Statement and Recovery

The disclosure statement, as per the memorandum (Ex.P9), was prepared at Seoni Trisection and witnessed by PW6; the recovery memo (Ex.P-10), was prepared at accused’s hut near railway line in Model village at 1400 hours 02.02.2010 and the same was witnessed by PW6. Interestingly, PW6 is the only public witness of disclosure and recovery to be examined and he has not supported the prosecution case. What is even more interesting is that the other seizure memorandum prepared in respect of lifting blood-stained saree, gravel, slippers etc. from near the railway line, that is the spot from where the deceased was lifted, was prepared at 1400 hours on 02.02.2010. How could it be possible that the police prepared two memorandums at the same time at different places. The answer to it lies in the testimony of PW6, a witness to both, who stated that he was made to sign the papers at the police station. Meaning thereby that all papers were prepared at one go rendering the entire exercise of disclosure and consequential discovery/recovery doubtful. Not only that, there appears no cogent reason for the accused to carry stones from the spot and hide them in his hut while leaving several bloodstained stones near the railway line. In such circumstances, it appears to us that those stones were picked from the spot near the railway track to show recovery from the hut. Insofar as the recovery of blood-stained clothes is concerned, in addition to the above reasons, the same is doubtful also because of the statement of PW4 that her father on return had washed those clothes and had spread them to dry over the cattle shed in the house therefore, how could they be recovered from the hut. It be noted that the house is shown located in the village, whereas the hut is shown in the field at quite a distance from the house. For all the reasons above, the High Court was justified in doubting the recovery of blood-stained clothes etc. at the instance of the accused from the hut and on the basis of a disclosure statement made by him. [Para 24 (ii)][620-C-H; 621-A-B]

(c) Extra Judicial Confession to PW4

The alleged extra judicial confession made by the accused to PW4 was neither disclosed in the FIR nor in the previous statement of PW4 made during investigation. PW4 was confronted with that omission during her deposition in court. That apart, the testimony of PW4 with regard to the accused returning home, making extra judicial confession, changing clothes, washing bloodstained clothes and spreading them to dry has been found unreliable and shaky by the High Court for cogent reasons extracted above, which do not appear perverse as to warrant an interference. Thus, the circumstance of extra judicial confession is also not proved beyond doubt. [Para 24 (iii)][621-C-E]

(d) Accused taking the deceased from home on a bicycle

When the court peruse the detailed reasons recorded by the High Court in its judgment to hold that the testimony of PW4 is not of a stellar quality as to merit conviction solely on its basis, this Court finds no perversity in the High Court’s conclusion as may warrant a reversal of acquittal into a conviction in exercise of jurisdiction under Article 136 of the Constitution. At what time the accused had taken the deceased on his bicycle is not clear from the testimony of PW4 though, from the first part of her testimony, it appears that the accused and the deceased were noticed quarrelling with each other at about 1630 hours and soon thereafter, the appellant took the deceased on his cycle. If, from that, the event of taking the deceased on bicycle at about 1630 hours there is still quite a large time-gap between 1630 hours and 2000 hours for other intervening factors to operate. In light thereof, considering that the place of occurrence was an open place and the other circumstances (i.e. motive, disclosure, recovery and extra judicial confession) were not proved beyond reasonable doubt, shifting the burden on the accused to explain the circumstances in which the deceased sustained injuries, or to demonstrate that he parted company of the deceased, would not be justified in the facts of the case. [Para 24 (iv)][621-H; 622A-B; 623-A-D] State of U.P. v. Sahai & Others (1982) 1 SCC 352; State of M.P. & Others v. Paltan Mallah & Others (2005) 3 SCC 169 : [2005] 1 SCR 710; Basheera Begam v.

Mohd. Ibrahim & Others (2020) 11 SCC 174: [2020] 3 SCR 562 – referred to.