ASHISH BATHAMversusSTATE OF MADHYA PRADESH

A                                ASHISH BATHAM
                                          V.

                         STATE OF MADHYA PRADESH

                               SEPTEMBER 9, 2002

B            [DORAISWAMY RAJU AND SHIVARAJ V. PATIL, JJ.)


           Penal Code, 1860-Section 302 and 449--Murder and house trespass
    to commit murder--Conviclion based on circumstantial evidence--Concurrenl
C   findings. bf court be/ow--Sustainability--On appeal held, evidence relied on
    for substantialing circumstances suffered from serious infirmities and lack of
    legal credibilities to merit acceptance-Also does not lend continuity lo chain
    of even/s resulting in murder-Hence conviclion sel aside.

          Appellant-accused committed house trespass and murder of two
D girls. Trial Court relied on circumstantial evidence that appellant-accused
    failed in love affair with the elder of the two sisters and also failed to marry
    her; that he was seen entering and leaving house where both the sisters
    were found dead; that accused was found absent in suspicious
    circumstances one day before the date of incident and three days after
    the incident from his office and the improbable and unproved defence of
E   alibi taken that he was with his sister in a different place; that the chain
    seized from his possession and identification of the same by deceased's
    parents and the seizure of knife and blood stained clothes. It convicted
    appellant-accused under Sections 302 and 449 IPC. High Court confirmed
    the same. Hence the present appeal.
F         Appellant contended that the case being on circumstantial evidence,
    the prosecution miserably failed to prove the circumstances satisfactorily
    to complete the chain of circumstances so as to establish conclusively the
    guilt of the accused in a manner that rule out every hypothesis inconsistent
    with his innocence; that the missing links were also liberally filled upon
G   by manipulated material and baseless surmises resulting in grave injustice
    and the prosecution suppressed and withheld, relevant and most vital
    materials gathered by them in the course of investigation and also withheld
    important witness from being examined.

          Respondent contended that the prosecution successfully proved its
H                                         146
                 ASHISH BA THAM v. ST ATE OF MAD HY A PRADESH                14 7

     case by placing on record circumstantial C\'idence which go to establish       A
    ·the guilt of the appellant beyond any reasonable doubt.

          Allowing the appeal, the Court

          HELD: I.I Both the courts below ha\'e committed serious error in
    presuming the guilt of appellant first and try thereafter to find out one       B
    or other reason to justify· such a conclusion without an objecti\'e,
    independent and impartial analysis or assessment of the materials, before
    recording a finding on the guilt of appellant. Contradictory standards or
    yardstick and lack of coherence is found writ large in the manner of
    consideration adopted by courts below. In the case of e\'aluation of the
    e\'idence, insignificant things ha\'e been unduly magnified and serious         C
    lapses and withholding of \'ital materials and relevimt witnesses have been
    unjustifiably glossed over despite the fact that the production of those
    materials would have really helped to fix the guilt or otherwise of appellant
    concretely and bring about the real truth about the matter. 1164-B-DI
                                                                                    D
           1.2. The fact that at a busy place like the one where the incident
     occurred, nearby the Hospital area, a thickly residential with surroundings
     as spoken to by the witnesses such murder of two girls could be said to
     have been executed without attracting the attention of anyone nearby or
     regular passerby at that point of time in the area also seriously
     improbablise the prosecution \'ersion that appellant alone was and could       E
     ha\'e been the culprit. Also that the doubtful and suspect nature of the
     evidence sought to be relied upon to substantiate the circumstances suffer
     from serious infirmities and lack of legal credibilities to merit acceptance
     in the hands of Courts of Law, since the very circumstanc.es sought to be
     relied upon themselves stood seriously undermined the existence or proof       F
     of one or more of stray circumstances in the chain, break and dislocate
     the link in such a manner so as to irreversibly snap the link in the chain
     of circumstances rendering it difficult, inappropriate as well as impossible
     too, to consider even one or more of them alone to either sufficiently
     constitute or provide the necessary basis to legitimately presume the guilt
     of the appellant. 1164-E-GI                                                    G
          1.3. The appellant seems to have been roped in merely on suspicion
     and the story of the prosecution built on the materials placed seems to be
     neither the truth nor wholly the truth and the findings of the courts below,
     though seem to be concurrent, do not deserve the merit of acceptance or
     approval having regard to the glaring infirmities and illegalities vitiating   H


I
    148                      SUPREME COURT REPORTS (2002] SUPP. 2 S.C.R.

A them and patent errors apparent on the face of the record, resulting in
    serious and grave miscarriage of justice to the appellant. 1164-H; 165-AI

          2. From the mere fact that one of the deceased and appellant were
    said to be in love, it cannot be even remotely presumed that it should have
    been the cause for the murder unless it is substantiated by credible
B   evidence that the affair had broken beyond redemption. This part seems
    to have more surmised by courts than substantiated by the prosecution
    on any credible or legally acceptable evidence. Therefore, the motive factor
    seems to have no legal basis or sufficiently proved to constitute a
    circumstance connecting the appellant with the occurrence. 1160-A, Bl
c         3. It is odd to believe that the prosecution witness who heard the
    calling bell sound in the house where the incident occurred, followed by a
    cry of one of the deceased, neither tried to come out nor sounded or even
    alerted anyone in her own house about such a cry to enable them to
    respond or verify what it was about. The conduct and the attitude of PW4
D   as well as PWS seems to be highly suspicious to make them to be really
    true witnesses for the event spoken to by them. Their evidence seems too
    artificial to be believed and their disappearance from the scene, to
    reappear one on the night 11nd other after two days, would hardly inspire
    confidence in their version, to be believed by any reasonable person or
E   any Court. Thus no reliance could have been placed on their version to
    prove the movement of appellant during the relevant point of time near
    the house where the incident occurred so as to implicate him in the murder.
                                                          1160-E, G, H; 161-Al

          4. Courts below rejected the claim of the appellant that he had left
p   the place of incident a day before the incident occurred accompanying his
    sister by the night train as per the reservation of tickets made by him,
    faulting the appellant for not examining the railway officials ignoring the
    fact that in spite of Inspector collecting the materials relating to his
    reservation and travel, neither he was examined nor the prosecution
    summoned those officials, who were examined during the course of
G   investigation or marke<! the materials collected to· prove that the appellant
    did not travel as claimed by him. Different and contradictory standard of
    appreciation of evidence seems to have been adopted to the detriment of
    the accused resulting in grave injustice. In the absence of any clinching
    material brought on record by the prosecution to show that the appellant
H   did not, as a matter of fact, travel as per the reservations made by him
            ASHlSH BA THAM v. ST ATE OF MADHYA PRADESH                   149

along with his sister, it was not permissible for the courts below merely      A
to disbelie,·e defence witnesses for no valid reason and to surmise, most
unjustifiably that the appellant was clever enough to prepare the material
for the defence of alibi, which remained unsubstantiated. (161-B-E(

      5. Appellant filed complaint necessitating the CID officers to conduct
an independent investigation and submit a report, but claiming privilege       B
and protection not only those papers were removed from the case file, but
no one associated with the said investigation were even examined though
they were cited as witnesses and were also said to be present in court.
Strangely the trial judge while examining the accused had asked any
question about the conduct of those investigating officers. (161.C-H; 162-A(   C
       6. Identification of the chain wom by the deceased, by her parents, does
not carry the case of the prosecution any further. Even recovery of the chain
claimed from the appellant after his arrest cast serious doubts rendering the
said claim itself a suspect one. The only panch witness, examined for the
recovery, does not corroborate any recovery in his presence, and the other D
witness to the recovery was not examined at all. It is hard to believe that the
appellant was carrying the chain in his pocket from the date of occurrence
till he met the Inspector and that the said Inspector who allegedly got the
diary and a photo could not have noticed that and the same was carried by
him till it was claimed to have been recorded by investigating officer. Though E
the chain was said to have been worn by the deceased before her death, no
bloodstains were found on the chain in spite of her neck being cut and she
bled profusely from the neck. The non-examination of the same also cast
serious and reasonable doubts. Regarding disclosure statement and recovery
panchanama relating to the recovery of the blood stained knife and clothes
recovered from the bushes near a temple, it is unnatural and unbelievable F
that after the occurrence appellant went to the temple area to hide these two
things though he was said to have been going towards the bus stand, suggestive
of the fact that he was only leaving for other place. The recovery was abo
delayed that too after the second remand of appellant. The fact that panch
witness claimed that appellant signed the disclosure statement in his G
presence whereas the same really does not bear any signature of appellant
and also the deposition of panch witness that appellant was found
handcuffed and his face was covered and the non-examination of the.other
witness in spite of such doubtful version, the credibility of the so-called
disclosure statement as well as the alleged recovery becomes seriously
doubtful. (162-E-H; 163-A-DI                                                    ·H
    150                       SUPREME COURT REPORTS (2002] SUPP. 2 S.C.R.

A         7. The serious lapse in not pursuing the examination of the finger
    prints or bring on record the results of fingerprints taken and making them
    available for consideration as well as the omission to bring to the notice
    of the Court the result of the lie detector test, to which the appellant was
    subjected, sufficiently create serious suspicion and cast great shadow of
B   doubt on the credibility and truthfulness of the prosecution case.1162-A, Bf

           8. Considering the number, nature and manner of injuries found
    inflicted on the body of the two girls as also the deposition of the doctor
    who conducted the post-mortem, serious doubts arise to engulf the
    credibility of the prosecution theory, as a whole, as to whether it wa~
C   possible at all for a single person to inflict so many injuries with one knife
    within such a short span of time without getting himself hurt, or receiving
    any form of injury during altercation, in retaliation from the two girls.
    Absence of any explanation to the bloodstains found on the terrace of the
    house also assumes significance and considerably affect the veracity of the
    case projected by the prosecution. (163-0-F(
D
         Govind Nargundkar and Anr v State of Madhya Pradesh, AIR (1952)
    SC 343; Sudama Pandey and Ors v State of Bihar, 12002( I SCC 679 and
    Subhash Chand v. State of Rajasthan, (2002( I SCC 702, referred.

E        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    148 of 2002.

         From the Judgment and Order dated 30.8.200 I of the Madhya Pradesh
    High Court in Crl. A. No. 763 of 200 I.

          Sushil Kumar, Adolf Mathew and Sanjay Jain, for the Appellants.
F
          Siddartha Dave and Ms. Vibha Datta Mal-.:hija, for the Respondent.

          The Judgment of the Court was delivered by

          0. RAJU, J. The above appeal has been filed by the appellant who was
G convicted by the learned Sessions Judge, Shajapur, Madhya Pradesh, for the
    offence under Section 302 IPC (on two counts) on the ground that he killed
    Ms. Nidhi and Ms. Priti, the daughters of Dr. Ram Avtar Mudgal (PW-2),
    and sentenced to death and imposition of life imprisonment for the offence
    under Section 449 !PC for committing house trespass to commit the said
H   murders. The appeal filed by the appellant herein· before the High Court in
    Criminal Appeal No.763 of 2001 and the reference made to the High Court
     ASHlSH BA THAM v. STATE OF MADHYA PRADESH (D. RAJU. J.] 151

for confirmation in death reference No.1 of 2001 came to be heard together    A
by a Division Bench of the Madhya Pradesh High Court, Indore Bench, and
while sustaining the conviction under Sections 302 IPC and 449 IPC, the
High Court altered and reduced the sentence to imprisonment of life by
making the sentence to run concurrently. The present appeal is against the
same.
                                                                              B
       The case of the prosecution, as unfolded from the evidence, is that Dr.
Ram Avtar Mudgal (PW-2), a dental practitioner at Shajapur, father of the
two unfortunate victims; was residing in Government Quarters situated near
"Nai Sadak" with his wife and two daughters, the eldest of whom by name
Kumari Priti, aged about 22 years and the younger one, by name, Kumari C
Nidhi, aged about 17 years. The appellant was said to have been serving as
Assistant Manager from 3.12.97 to 5.10.98 in M.P. Agro State Industry and
Development Corporation (for short "Agro Corporation") at its office at
Shajapur and was staying in Upkar Lodge situated in the vicinity of Nai
Sadak. During the said period he was said to have become friendly with the
eldest daughter, though he was familiar with both of them, and often they D
used to meet and sit behind Hanuman Temple situated on the outskirts of
Shajapur city. During such time of visit, said to be almost daily, Priti Mudgal
used to be with the appellant and he used to lie down keeping his head on
her lap and chat with her when the younger Ms. Nidhi used to sit at some
distance. The appellant used to give some gifts to the girls. Thereafter, the E
appellant came to be transferred as Assistant Manager to Bhopal Office of
the Agro Corporation and about a month or so prior to the day of occurrence
the father of the appellant Shri Hari Narayn Batham was said to have
telephoned to Dr. Ram Avtar Mudgal (PW-2) from Bhopal and told him that
there was an affair between his son, the appellant, and Priti, his daughter,
and, therefore, he should visit his house at Bhopal for talking about their F
marriage to which the father of the girls was said to have informed that he
was against the idea of marrying Priti to a boy who was not Brahmin by
caste, to which they belong and that was also the view of his daughter Priti.
It is also the case of the prosecution that the fatl,~r of the appellant told PW-
2 that in case of refusal he would be required to repent and that was the same G
tone of reply given by PW-2 when called up over phone once again, thereafter.
On the ill-fated morning of 8.4.99, it is said that the Dr. Ram Avtar Mudgal
(PW-2) and his wife left their house at about 6.15 a.m. or so for a morning
walk and when they returned back home by about 7.00 to 7.15 a.m., the outer
door was open and a newspaper 'Nai Duniya' was lying in the verandah and
on entry into the house, they found the younger daughter Ms. Nidhi dead H
    152                       SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A with injuries at the dental clinic room and the eldest daughter Ms. Priti in the
  toilet with injuries, almost in a sitting position. The further case of the
  prosecution is that during the time between 6 a.m. and 8 a.m. or so on that
  day the appellant was present in Shajapur and between 6. 15 a.111. and 6.30
  a.m. or so he was inside the house of Dr. Ram Avtar Mudgal (PW-2) and it
B was he who killed the daughters to wreak vengeance due to failure of love.
  PW-4, Advocate by name Shri Narain Prasad Pande, was said to have seen
  the appellant near the residential house of Dr. Ram Avtar Mudgal at about
  6.15 a.m. when he was going towards bus stand for catching the bus to go
  to Indore for attending the High Court work, PW-3, Ms. Poonam Garg, a
  neighbour, was said to have heard the noise of bell which was being pressed
C at the residence of Dr. Mudgal at about 6.15 a.m. or so followed in a few
  minutes by' the cries 'Mummy save, Mummy save'. Jai Prakash Mandloi
  (PW-5), who lives in a house just opposite the District Hospital, was said to
  have seen the appellant coming out in the outer compound of the residential
  house at about 7.00 to 7.30 a.m. when he was returning from his newly
  constructed house where he had gone to do watering. The appellant, after
D committing the murders of both the girls, was said to have concealed the
  blood stained knife, weapon of murders and the blue jean which he was said
  to have been wearing at the time of the incident, which was blood stained,
  in a ditch behind the bushes behind Hanuman Temple situated at the outskirts
  ofShajapur city. He was said to have deliberately created the scene of burglary
E and murder by keeping open the doors of almirah and stealing some currency
  notes worth Rs. 12,000 for misguiding the Investigating Authorities and also
   fabricated false evidence for establishing an 'alibi' to prove his innocence by
  showing that at the same time he was absent and away at Dahod in Gujarat,
  accompanying his sister from Bhopal and said to be present on 8.4.99 at that
   place. The priest in Hanuman Temple by name Shri Rishikesh (PW-16) was
F examined to prove the visits of the appellant to the temple in the company
   of the two girls. Immediately on his return to the house, Dr. Mudgal seems
   to have informed Dr. Rathore and Dr. Sisodia on telephone and Dr. Sisodia
   alongwith Dr. Gupta seems to· have reached the place and thereafter Dr.
   Gupta seems to have telephoned the Police Control Room giving information
G about the occurrence. PW-26, an ASI, who received the information, infonned
   PW-27, B.P. Samadhiya, City Police Inspector, about the incident. PW-27 on
   his arrival on the spot was told by Dr. Mudgal (PW-2) about the occurrence
   and the same was registered as 'First Information Report' (Ex.P-11) and the
   death of the two girls was recorded as information marked as Ex.P-12 by
   sending the raiding officer to the Judicial Magistrate and Departmental
H Sentencing Authority and the investigation was said to have been started. It
            ASHISH BA THAM v. ST ATE OF MADHYA PRADESH [D. RAJU, J.] 153

      is stated that during investigation Police Inspector, M.S.Gaur, brought the       A
      appellant from Bhopal and produced him before the City Police Inspector,
      who arrested him. Dr. Mudgal (PW-2) was also stated to have given on
      21.4.1999 the list of articles said to be missing from place of incidence to
      PW-27 marked as Ex.P-14. After the arrest and personal search of the appellant,
      it was stated that a purse, in which one chain and Rs. 1223 were found, was
      seized and panchnama marked as Ex.P-22. In the Identification Parade held         B
      on 22.4.1999 by Shri R.K. Sharma, Tehsildar (PW-14), Dr Ram Avtar Mudgal
      (PW-2) and his wife Were said to have identified the chain, noticed above,
      to be the chaih missing from the neck of the younger daughter Ms. Nidhi. On
      a disclosure statement said to have been made on 23.4.1.999 under Section 27
      of the Evidence Act, the appellant was said to have produced the knife and        C
      blotld stained ctlothes from the place where they were said to have been
      hidden vlde Ex.P•23. The knife and blood stained clothes were said to have
      been seized under seizure panchnama Ex.P-24. The appellant's specimen
      handwritings and signatures were also said to have been obtained and seized.

              The .appellant was charged under Section 302 IPC separately for the       D
       murder of two girls, in addition to being charged under Section 449 IPC. The
       appellant denied the charges. After trial, in which witnesses were examined
       and documents were marked, the learned Trial Judge accepted the evidence
       of Narain Prasad Pande (PW-4), Rajmal Bhimawat (PW-10) as well as Jai
       Prakash Mandloi (PW-5) and Poonam Garg (PW-3) and placing reliance               E
       upon the evidence of Hanuman Temple priest PW-16, Rishikesh, and PW -27,
       Investigating Officer. Samadhiya, found that the evidence was sufficient to
       establish the guilt of the appellant in respect of the charge of murder of two
       girls. The learned Trial Judge also held that during the time between 6 a.m.
       and 8 a.m. or so on 8.4.99 the appellant was present in Shajapur and between
       6.15 a.m. and 6.30 a.m. or so, he was inside the house of Dr. Mudgal by          F
       committing house trespass and from the further circumstances proved from
       the recovery of the chain and the weapon for committing the offence and
       blood stained clothes, the guilt of the appellant stood substantiated beyond
     · doubt by the overwhelming circumstantial evidence. The defence put forward
       by the appellant, including the one based on the plea of alibi, was rejected.    G
       Consequently, the Trial Court convicted the appellant and imposed sentences,
       as noticed earlier. The Division Bench of the High Court, while dealing with
       the Death Reference as well as the appeal filed by the accused, affirmed the
       conviction and modified only the death sentence into one of life imprisonment.

             Shri Sushi! Kumar, learned senior counsel for the appellant, and Shri H




l_
      154                       SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R .

. A Sidhai1ha Dave. learned counsel for the respondent-State, were heard at length.
    The learned counsel took us in detai I into the relevant evidence and all the
    materials on record to substantiate their respective stand. The learned counsel
    for the appellant contended that being a case depending upon merely
   ·circumstantial evidence, the prosecution miserably failed to prove the
 B circumstances satisfactorily to complete the chain of circumstances so as to
    establish conclusively the guilt of the accused in this case in a manner that
    rule out every hypothesis inconsistent with his innocence. According to the
    learned counsel, apart from being unable to do so, the missing links also were
    liberally filled upon up by manipulated materials and baseless surmises,
    resulting in grave injustice. The serious charge against the prosecution by the
 C learned counsel was that it suppressed and withheld, relevant and most vital
    materials gathered by them in the course of investigation and withheld also
    important witness not only cited but called for and present in Court from
    being examined in an attempt to avoid the real facts and truth of the episode
    coming before Court for its consideration. The grievance projected for and
    on behalf of the appellant is that on mere surmise and suspicion the appellant
 D has been targeted and the case tailored to somehow get the appellant .:onvicted
    and the Courts below either overlooked or glossed over serious pitfalls and
    grave infirmities in the case of the prosecution and the evidence let in to
    prove its case, by adopting a superficial approach, not befitting the seriousness
    of the crime alleged. Despite the concurring nature of the verdict returned by
 E the Courts below, it was contended for the appellant that' the conclusions
    were manifestly erroneous and arrived at without a complete and
    comprehensive appreciation of all relevant aspects of the case in their proper
     perspective and consequently are liable to be set aside.

            Per contra, the learned counsel for the respondent also strenuously
 F contended that the prosecution successfully proved its case by placing on
   record overwhelming circumstantial evidence, which, according to the learned
   counseL rightly found favour of acceptance with both the Trial Court as well
   as the High Court and, therefore, no interference is called for in this appeal.
   The circumstances such as the motive the love affair and failure in-it, the fact
   that the accused was seen near the place of occurrence at the relevant point
 G of time when the offence was said to have been committed, the failure lo
   prove the alibi set up by the accused, the recovery of the chain from the
   accused and the further recovery of blood stained knife and clothes, pursuant
   to a disclosure statement under Section 27 of the Indian Evidence Act, were,
   according to the learned counsel, strong, relevant and important circumstances
 H which go to establish the guilt of the appellant bt>yond any reasonable doubt,
     ASHISH BA THAM v. STATE OF MADHYA PRADESH [D. RAJU, J.]                155
  leaving no room for any other hypothesis, except the guilt excluding entirely    A
 the innocence of the accused and consequently, the appeal deserves to be
·rejected. Keeping in view the gruesome nature of the crime, the learned
 counsel submits that the accused is not entitled to any liberal or sympathetic
 consideration and that the High Court having already been more lenient and
 sympathetic in reducing the death sentence into one of life imprisonment, no      B
 further indulgence of any kind need be shown to the appellant.

       The principles, which should guide and weigh with the Courts
administering criminal justice in dealing with a case based on circumstantial
evidence, have been succillctiy laid down as early as in 1952 and candidly
reiterated time and again, but yet it has become necessary to advert to the        C
same, once again in this case having regard to the turn of events and the
manner consideration undertaken; in this case by the courts below. In
Hanumant Govind Narguhdkar and Anr. v. State of Madhya Pradesh, AIR
(1952) SC 343], it has been held as follows:-

        "In dealing with circumstantial evidence the rules specially applicable    D
        to such evidence must be borne in mind. In such cases there is always
        the danger that conjecture or suspicion may take the place of legal
        proof and therefore, it is right to recall the warning addressed by
        Baron Alderson to the jury in Reg. v. Hodge, (1838) 2 Lewin 227)
        where he said:
                                                                                   E
             "The mind was apt to take a pleasure in adapting circumstances
             to one another, and even in straining them a little, if need be, to
             force them to form parts of one connected whole; and the more
             ingenious the mind of the individual, the more likely was it,
             considering such matters, to overreach and mislead itself, to
             supply some little link that is wanting to take for granted some      F
             fact consistent with its previous theories and necessary to render
             them complete."
             It is well to remember that in cases where the evidence is of a
         circumstantial nature, the circumstances from which the conclusion
         of guilt is to be drawn should in first instance be fully established, G
       . and all the facts so established should be consistent only tNith the
         hypothesis of the guilt of the accused. Again, the circumstances should
         be of a conclusive nature and tendency and they should be such as
         to exclude every hypothesis but the one proposed to be proved. In
         other words, there must be a chain of evidence so far complete as not H
    156                       SUPREME COURT REPORTS [2002J SUPP. 2 S.C.R.

A          to leave any reasonable ground for a conclusion consistent with the
           innocence of the accused and it must be such as to show that within
           all human probability the act must have been done by the accused."

          These principles were needed to be restated even as late as in the
    decision reported in Sudama Pandey and Ors. v. S1a1e of Bihar, [2002] I
B   sec 679 and Subhash Chand v. S!ale of Rajasthan, [2002] 1 sec 702.
         The learned Trial Judge adverted to the following circumstances said to
    have been shown against the appellant to establish his guilt:

           (a) Motive to commit the crime is that the accused failed in the love
c              affair with Ms. Priti, daughter of P. W.2, and failure to marry her;
           (b) The accused, who had earlier served at Shajapur but transferred
               to and serving at Bhopal, was seen entering and leaving the
               house situated in the premises of District Hospital, Shajapur,
               where the two daughters of P. W.2 were found dead and was seen
D              going towards the bus stand;
           (c) Absence· of the accused in suspicious circumstances one day
               before the date of incident and three days after the incident from
               his Bhopal Office and the improbable and unproved defence of
               alibi taken that he was with his sister at Dahod in Gujarat State;
E          (d) Seizure of the chain from the possession of the accused and the
               identification of the same by the mother and father of the
               deceased;
           (e) The disclosure statement given by the accused under Section 27
               of the Indian Evidence Act and seizure of the knife and the
F              blood stained clothes, pursuant to the same:
           (t)   Presence of human blood in the chemical examination of the
                 knife and blood stained clothes seized from the accused; and
           (g) The conduct of the accused, non-disclosure of ihe facts in his
G              knowledge and giving false explanation.

    The High Court also, though chosen to refer to the very same, had modulated
    and multiplied it by adverting to the various facets of the same.

       Realities or Truth apart, the fundamental and basic presumption in the
H administration of criminal law and justice delivery system is the innocence
                                                                                      t
      ASHISl-IBATHAM v. STATE OF MADHYA PRADESH [D. RAJU J.] 157

of the alleged accused and till the charges are proved beyond reasonable A
doubt on the basis of clear. cogent, credible or unimpeachable evidence, the
question of indicting or punishing an accused does not arise, merely carried
away by heinous nature of the crime or the gruesome manner in which it was
found to have been committed. Mere suspicion, however, strong or probable
it may be is no effective substitute for the legal proof required to substantiate B
the charge of commission of a crime and grave the charge is greater should
be the standard of proof required. Courts dealing with criminal cases at least
should constantly remember that there is a long mental distance between
'may be true' and 'must be true' and this basic and golden rule only helps
to maintain the vital distinction between 'conjectures' and 'sure conclusions'
to be arrived at on the touch stone of a dispassionate judicial scrutiny based C
upon a complete and comprehensive appreciation of all features of the case
as well as quality and credibility of the evidence brought on record.

      So far as the case on hand is concerned, it becomes necessary even at
the threshold to find out whether the Courts below really endeavoured to find
out that each and every incriminating circumstance has been clearly established D
by reliable and clinching evidence. In a case like the one before us entirely
resting on circumstantial evidence and the defence plea that prosecution had
withheld and suppressed documents, witnesses and materials it was obligatory
for the Courts below also to ensure whether the prosecution has come up
before the Court with the whole and unvarnished truth or merely presented E
a perfunctory and tailored case to suit its game plan of somehow securing a
conviction, resulting in grave miscarriage of ju~tice. Before going into the
circumstances pleaded and analysing the materials on record to find out
whether they stood sufficiently or properly established in this case, it would
be appropriate to take up for consideration this grievance for the appellant to
ascertain the iinpact of the same on the very proof of existence of those F
circumstances. P.W.8, the senior Scientific Officer and Assistant Chemical
Examiner, who inspected the scene of occurrence by about 11.30 a.111. on the
very day of occurrence stated about his instructions to Shri P.C. Yadav, the
Finger Print Officer, present at that t.ime, to take the finger prints noticed
during inspection. P. W. 27, the Investigating Officer, also spoke about the G
taking of fingerprints and foot prints (shoe marks). The fingerprints of the
accused were also taken by P.W.27, yet evasive was his reply, on the result
of examination or c9urse of action taken pursuant thereto. Neither any reports
were marked nor Shri P.C. Yadav was examined. This would be a relevant
and important piece of material to strengthen the case of either side about the
alleged complicity of the accused. The lie detector test report of the appellant H
    158                       SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A said to be item No.45 in the list of documents submitted by the prosecution
   with the charge sheet was not also marked. Evidence collected by the
   prosecution regarding the journey of the appellant from Bhopal to Dahod and
   materials to evidence actual journey with his sister in its possession was also
    not marked though shown in the list of documents with the charge sheet.
B Ironically, com1s below tried to blame the accused for not getting official
    witnesses examined in this regard for the defence, in spite of his having
    examined his sister (D.W. I) and a tenant (D.W.2) in the house at Dahod
    where D.W.I also lived. Withholding by the prosecution of the report the
    materials gathered and conclusions of the CID investigation in the very case
    and claiming privilege for its production, Which came to be upheld also on
C 27.I 1.1999 by the Trial tourt resulting in the exclusion of those materials
    from the case and denial of even the copy of the said report seems to suggest
    a concerted effort on the part of the prosecution to mask the real truth from
    the CQUrt. The CID officers, who conducted the independent investigation
    and submitted report though cited as witnesses and present in Court on
  · 7.12.2000 were, for reasons best known, not examined. Inspector M.C. Gaur,
D who conducted the investigation in Bl)opal and gathered materials relating to
    the trip of the appellant to Dahod, stated to have recovered a diary and
    photograph and brought him from Bhopal to Shajapur on I 1.4.1999, though
    cited as witness No. 10 in the list submitted with the charge sheet, was not
    examined. He was the best and really vital witness, who could speak for his
E absence on account of being away at Dahod as well as regarding the search
    of his person before the alleged search and seizure of the purse and chain on
     12.4.1999 at Shajapur by P.W.27 and as to whether the appellant was really
    absconding or evading being apprehended as projected by the prosecution, in
    spite of the real fact that even without any arrest \varrant he accompanied
    Inspector Gaur to Shajapur without any demur. Witnesses, natural and
F independent, expected to be in and around the place of occurrence at the
    relevant time such as sweepers, milkman, Newspaper man (P.W.2 admits
    newspaper having been lying at the entrance when he returned) whose
    statements were recorded and cited as witness were but given up and not
    examined at all. The list of Telephone calls STD, said to be on the basis of
0 computer sheet relating to Telephone No.547396 of Bhopal alone seems to
     have been got marked as Ex.P.16 through P.W.16 but for reasons best known
    such list containing details of calls made from the house of the deceased
     (their father P. W.2) to the house of the accused though shown as Item No.63 .
     in the list of documents submitted with the charge sheet was not got marked
     and placed in evidence. This could have cast serious doubts about the claims
H of PW-2 in respect of the alleged threat over telephone as well as the attitude
      ASHISHBATHAMv. STATEOFMADHYAPRADESH [D. RAJU, J.]                       159
 of his and his own daughter towards the accused. All those aspects would            A
 really go to a great extent to justify the grievance sought to be made on
 behalf of the appellant. that the prosecution instead of impartially endeavouring
 to unravel the truth was bent upon persecuting the appellant to get him some
 how convicted, with a preconceived idea of his guilt.

         The courts below proceeded to believe the disappointment and failure        B
  in love of the accused with Ms. Priti to be the.strong motive for the appellant
  to have committed the murder and as a firm circumstance to connect him
  with the incident. The accused, of course, denied the love affair. P.W.2, the
  father, also deposed that he was not aware of the same and when he checked
  up after the call from the father of the accused Hari Narayan Batham, who          C
  was alleged to have asked for the marriage of the accused with the deceased
  girl Priti, the girl also stated to have denied any such relationship with the
  accused. In that view of the matter, the evidence of P. W.16, the Priest of
· Hanuman Temple, and the telephone calls were mainly relied upon to arrive
  at the findings in this regard, taken together also with a stray information
  given the observation by the sister of the accused, D. W.1. A careful reading      D
  of the evidence of P.W.16 would show that he is a mere tuitored witness and
  not speaking the truth as to what really happened, if only the version of
  P.W.2 as to total ignorance of any such affair with his daughter and the blunt
  denial by his daughter Priti as spoken by him is to be believed. Ex.P.16, the
  telephone bill pertaining to Telephone No. 547396 located in Bhopal, not           E
  merely indicates the call from the said telephone to the residential telephone
  of P. W.2 on that day or thereafter, but the calls often made from· January
  onwards, at times of very long duration at odd hours in the night. This taken
  together with the grievance projected on behalf of the appellant about non-
  marking of the similar list of telephone STD calls from the telephone of
  P.W.2 indicating as it is claimed of such calls of longer duration to the          F
  Bhopal No.547396 would go to show that P.W.2 could not have been oblivious
  to the on-going affair between the accused and the deceased daughter Priti.
  The theory of alleged threat seems to be a mere invention of the prosecution
  to somehow fix the appellant with the murder taking advantage of the partial
  evidence produced. This line of reasoning sugges;ed by the learned counsel         G
  for the appellant would get strengthened from the fact that though the Police
  arrived immediately after the occurrence and a complaint was lodged by
  P.W.2, there was no meniion about the appellant being even a suspect for
  incident and if·only the theory of threat sought to be advanced to prove the
  complicity of the appellant with the murder, was a real fact the moment he
  saw the occurrence on his return to the house that alone should have naturally     H
    160                       SUPREME COURT REPORTS (2002) SUPP. 2 S C.R.

A come. to his thought in the fo1·ethmt. From the mere fact that the deceased
    Priti and the appellant were S!lid to be in love alone, it cannot be even
    remotely presumed that he should have been the cause for the murder unless
    it is substantiated by credible evidence that the affair had broken beyond
    redemption. This part seems to have more surm iseu by courts than substantiated
    by the prosecutioli oh any credible or legally acceptable evidence. In our
B   view, therefore, the motive factor seems to have no legal basis or sufficiently
    proved to co11stitute a circumstance to connecting the appellant with the
    occurrence.

          The next circumstanee Mllght to be relied upon is that the appellant,
C who was transferred from Sh11japur and working at the relevant time at Bhopal,
  was found entering nenr the compound and leaving the place during the time
  between 6.00 and 7.15 a.m. Oh the morning of 8.4.1999. This circumstance
  is sought to be substantiated by the evidence of P. W.4, an Advocate, residing
  nearby and P. W.5 residing in the vicinity of the Lodge opposite to the quarters
  of P.W.2 and that of the young girl of 14 years at the time of examination
D (P. W.3), who was said to have heard the calling bell sound in the house .of
  P.W.2, followed by a cry of Priti 'Mummy save, Mummy save' from the
  house of P.W.2. It is odd to believe that this girl neither tried to come out
  to see what it is nor sounded or alerted anyone in her own house about such
  a cry to enable them to respond or verify what it was about. The conduct and
E the attitude of P.W.4 as well as P.W.5 seems to be highly suspicious to make
  them to be really true witnesses for the event spoken to by them. Though
  P. W. 4 would claim that he saw the accused entering near the compound
  leading to the house of P.W.2 while he was leaving for the bus stand for his
  onward journey to Indore to attend the Court work in the High Court, P. W.
  5 was positive in deposing that after the occurrence and when the police
F arrived and people were gathered before the house of P.W.2, he found P.W.4
  also in the crowd. In spite of all these, P. W.5 would say that he immediately
  left for his village evincing no interest in the matter and returned after two
  days and when he called on the Doctor, he disclosed about having seen the
  appellant whom he claimed to know since the appellant was residing earlier
G in the Upkar Lodge. P.W.4, the Advocate, also would say that only when he
  returned late ih the night, he called on the father and disclosed the information
  about his having noticed the appellant while he was leaving. The evidence of
  these two witnesses seems too artificial to be believed and their disappearance
  from the scene, to reappear one on the night and other after two days, would
   hardly inspire confidence in their version, to be believed by any reasonable
H person or any Court, which is obliged to analyse and assess the credibility of
   . ASHlSH BATHAM v. STATE Of MADHYA PRADESH [D. RA.JU. J]                161

the evidence before accepting the same. Consequently, no reliance could A
have been placed on their Vllrsion to prove the movement of the appellant
during the relevant point of time near the house of P. W.2 so as to implicate
him in the murder. It is necessary at this stage itself to advert to the claim
of the appellant that on 7.4.1999 he left Bhopal accompanying his sister DW-
 I, by the night train to Dahod in Gujarat as per the reservation of tickets B
made by him, which was also spoken to by D.W.l and D.W. 2 that not only
the appellant travelled along with the D. W, l, but he was very much present
at Dahod in Gujarat on 8.4.1999. Curiously, .the Courts below chose to
summarily reject the claim faulting the appellant for not examining the railway
officials ignoring the fact that in spite of Inspector Gaur collecting the materials
relating to his reservation and travel, neither .he was examined nor the C
prosecution summoned those officials, who were examined during the course
of investigation Qf mftrked the materials Follected to prove that the appellant
did not travel as clnlmed by him. Different and contradictory standard of
appreciation of evidence seems to have been adopted to the detriment of the
accused resulting in grave injustice. In the absence of any clinching material
brought on record by the prosecution Jfl show that the appellant did not, as D
a matter of fact, travel as per the reservations made by him along with his
sister (D. W, l ), it w;is not permissible for the courts below merely to disbelieve
DW-1 and DW-2 for no valid reason and to surmise, in our view, most
unjustifiably that the appellant was clever enough to prepare the material for
the defence of alibi, which, according to them, remained unsubstantiated. To E
support the prosecution version, an arrest of the appellant was shown on
 12.4.1999 at Shajapur by P.W.27. It was sought to be projected as though he
was absconding and avoiding being apprehended without choosing to examine
 Inspector Gaur, who had been to Bhopal to investigate and who really brought
him into Shajapur and presented him to the Investigating Officer (P. W.27).
To add further to the mysterious move of the prosecution, no attempt was F
 made to mark or let in evidence of the relevant railway officials, though the
materials gathered were shown in the list of documents by the prosecution.
It appears that on a grievance of harassment and biased and partial investigation
by the local Police, complaint seems to have been made necessitating the
CID officers to conduct an independent investigation and submit a report, but G
claiming privilege and protection under Section 137(6) of the Cr.P.C., not
only those papers were removed from the case file, but no one associated
with the said investigation were even examined though they were cited as .
witnesses and were also said to be present in court on 7.12.2000. Strangely,
the learned Trial Judge while examining the accused under Section 313,
Cr.P.C., was shown to have put questions about the conduct of those H
    162                        SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A investigating officers to the accused. The serious lapse in not pursuing the
    examination of the finger prints or bring on record the results of fingerprints
    taken and making them available for consideration as well as the omission to
    bring to the notice of the Court the result of the lie detector test, to which the
    appellant was subjected, sufficiently create serious suspicion and cast great
B   shadow of doubt on the credibility and truthfulness of the prosecution case.

           The next circumstance that was considered to be a strong and relevant
    one to connect the appellant with the occurrence was the recovery of the
    chain said to have been worn by his younger daughter Nidhi and stated to be
    missing. The entire episode, both with reference to this recovery as well as
C   the recovery of the knife said to have been used in the commission of the
    offence as well as the blood stained clothes of the appellant seem to be much
    more shrouded in suspicion ~nd dramatic than real to inspire any confidence
    or faith to place any reliance on either of them. About the so-called missing
    of the chain, which looked similar to gold, and about other alleged missing
    articles, P. W.2 was said to have given in writing, without any date, but
D   indisputably only on 21.4.1999.

         The identification test said to have been conducted by the Tehsildar
  (PW-8) and the so-called identification of the same by PW-2 and his wife of
  the chain said to have been worn by the deceased Nidhi does not carry the
  case of the prosecution any further. It is stated that the said chain placed for
E identification had iron wire in place of hook and it was not said to have been
  mixed with similar chains having such iron wire in place of hook. The criticism
  that, nothing much could be relied upon the so called identification cannot be
  lightly brushed aside. Even as to the recovery of the chain claimed from the
  appellant after his arrest on 12.4.99. at Shajapur, serious doubts surround
p recovery claim to render the said claim itself a suspect one:'PW-9, the only
  panch witness, examined for the recovery, panchnama does not corroborate
  any recovery in his presence and the other witness to the recovery was not
  examined at all. It is hard to believe that the appellant was carrying the chain
  in his pocket from the date of occurrence till he met Inspector Gaur that the
  said Inspector who allegedly got the diary and a photo could not have noticed
G it at Bhopal and the same was carried by him even when he was brought to
  Shajapur till it was claimed to have been recorded by PW-27. Though, it was
  said to have been worn by the deceased Nidhi before her death, no bloodstains
  were found on the chain in spite of her neck being cut and she bled profusely
  from the neck. The non-examination of Inspector Gaur, who brought the
H appellant from Bhopal, also cast serious and reasonable doubts about this part
    ASHISH BATHAMv. STATE OF MADHYA PRADESH [D. RAJU, .I.]                  163

of the prost;cution case. The same appears to be the position with reference        A
to the story about the disclosure statement Ex.P-23 and the recovery pan~hnama
 Ex.P-24 relating to the recovery of the blood stained knife and clothes
recovered from the bushes near the Hanuman temple. Apart from the story
striking to be stale, unnatural and unbelievable that after the occurrence the
appellant had gone to the temple area to hide these two things though he was        B
said to have been going towards the bus stand, suggestive of the fact that he
was only leaving for Bhopal. The delayed recovery that too after the second
remand of the appellant cast serious doubts about the said circumstance itself
to be true or accept to have been proved. Though PW-10, the panch witness
would claim that the appellant signed the disclosure statement Ex.P-23 in his
presence, the same really does not bear any signature of the appellant. This        C
fact taken together with the deposition of PW-I 0 that the appellant was found
handcuffed and his face was covered and the non-examination of the other
witness in spite of such ·doubtful version, the credibility of the so-called
disclosure statement as well as the alleged recovery becomes seriously
doubtful.
                                                                                    D
       Considering also the number, nature and manner of injuries found
inflicted on the body of the two girls as also the deposition of PW-18, the
Doctor, who conducted the post-mortem, serious doubts, in our view, could
reasonably be said to arise to engulf the credibility of the prosecution theory,
as a whole, as to whether it was possible at all for a single person to inflict     E
so many injuries with one knife and within such a short span of time left
between PW-2 and his wife leaving from the house and returning from their
morning walk. It is also doubtful as to whether one person could have,
without getting himself hurt, or receiving any form of injury during altercation,
in retaliation from the two girls, inflicted so many injuries. In this context,
the absence of any explanation to the bloodstains found on the terrace of the       F
house also assumes significance and considerably affect the veracity of the
case projected by the prosecution.

      The learned counsel for the respondent strenuously contended that
though, each of the above circumstances may not by themselves point towards
the guilt of the appellant, but taken together, lead to the only inevitable and G
inescapable conclusion that it is the appellant who committed the murder of
the two daughters of PW-2 cannot, at any rate, be doubted. We have carefully
considered this aspect of the matter also, despite the doubtful nature of the
very circumstances themselves to be really facts established, but could not be
persuaded to either agree with the learned counsel for the respondent or H
    164                       SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A approve the findings of the courts below. On a careful reading of the relevant .
  portions of the judgment of both the learned Sessions Judge as well as the
  Division Bench of the High Court, to which our attention has been invited by
  the learned counsel appearing on either side, we are constrained to place on
  record that both the courts below have committed the same serious error in
  presuming the guilt of the appellant first and try thereafter to find out one or
B other reason to justify such a conclusion without an objective, independent
  and impartial analysis or assessment of the materials, before recording a
  finding on the guilt of the appellant. Contradictory standards or yardstick and
  lack of coherence is found writ large in the manner of consideration adopted
  by the courts below. In the case of evaluation of the evidence, it could be
C seen so patently that insignificant things have been unduly magnified and
  serious lapses and withholding of vital materials and relevant witnesses have
  been unjustifiably glossed over despite the fact that the production of those
  materials would have really helped to fix the guilt or otherwise of the appellant
  concretely and bring about the real truth about the matter. We find, on going
  through the materials on record and the judgments of the courts below, the
D case before us to be an ideal and illustrative one to justify the apprehensions
  often reiterated by this Court that the mind was apt to take pleasure in
  adopting the circumstances to one or the other circumstance without straining
  a little to supply even the links found wanting to render them complete. The
  fact that at a busy place like the one in and nearby the Hospital area, a thickly
E residential with surroundings as spoken to by the witnesses such murder of
  two girls could be said to have been executed without attracting the attention
  of anyone nearby or regular passersby at that point of time in the area also
  seriously improbablise the prosecution version that the appellant alone was
  and could have been the culprit. We are also of the view that the doubtful and
  suspect nature of the evidence sought to be relied upon to substantiate the
F circumstances in this case themselves suffer from serious infirmities and lack
  of legal credibilities to merit acceptance in the hands of Courts of Law, since
  the very circumstances sought to be relied upon themselves stood seriously
  undern1ined the existence or proof of one or more of stray circumstances in
  the chain, break and dislocate the link in such a manner so as to irreversibly
G snap the link in the chain of circumstances rendering it difficult, inappropriate
  as well as impossible too, to consider even one or more of them alone to
  either sufficiently constitute or provide the necessary basis to legitimatelx
  presu1ne the guilt of the appellant. We could not resist but place on record
  that the appellant seems to have been roped in merely on suspicion and the
  story of the prosecution built on the materials placed seems to be neither the
H truth n'or wholly the truth and the findings of the courts below, though seem
           ASHISH BA THAM v. STATE OF MADHYA PRADESH [D. RAJU, J.]             165
    to be concurrent, do not deserve the merit of acceptance or approval in our       A
    hands having regard to the glaring infirmities and illegalities vitiating them
    and patent errors apparent 01i the face of the record, resulting in serious and
    grave miscarriage of justice to the appellant.
•
          For all the reasons stated above, the judgments of the courts below are
    set aside. The appeal is allowed and the appellant is acquitted and directed • B
    to be released forthwith, if not required in any other case.

    N.J.                                                         Appeal allowed.