TaxTMI 
TaxTMI 
1971 (8) TMI 235
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....adanpur, a village nearby at about 3 p.m. to purchase medicine for his ailing wife. At that time he noticed his daughter Jasoda playing outside the appellant's house with Sugheri, the daughter of Zaibun by her previous husband. On his return, Bhagwati found Jasoda missing and the members of his family searching for her. He joined them in that search. 3. PW 7, Dhansiria, a neighbour, came to Bhagwati in the meantime and informed him that she had seen the appellant and Zaibun lifting the girl and carrying her into their house that afternoon. On that information, Bhagwati sought out the appellant and his wife, but both of whom replied that they did not know the girl's whereabouts. Such a reply aroused suspicion in Bhagwati's mind against the appellant and his wife. He, therefore, met some of the villagers at the house of the Sarpanch Ram Bali where they decided to search the houses of everybody starting, however, with the house of the appellant. 4. By that time it had become dark and the Sarpanch, accompanied by Bhagwati and some of the other witnesses, came with torches to the appellant's house for the search. The appellant was said to be at that time just outsi....
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.... 7. Accompanied by some of the villagers Bhagwati thereafter went to the nearby police station taking with him Zaibun, the dead body of Jasoda, the basket and other articles, and there, at about 4.30 a.m., he lodged the first information report. 8. The defence of the appellant was that he had nothing to do with the death of the child as he was not in the village that day and that he was ultimately caught hold of by one Salig and others in Rudrapur about a month after the date of the occurrence and handed over to the police. 9. Two facts clearly emerge from the evidence which cannot possibly be disputed : (a) that the girl Jasoda was killed by strangulation, and (b) that her dead body tied in a bundle was found from the house of the appellant. But there was no direct evidence on the question as to who killed the girl except of course the oral statement said to have been made by Zaibun at the house of the village Sabhapati. Except for that, the prosecution case depended on circumstantial evidence which according to the prosecution consisted of the following: (i) that at about 3 p.m., as deposed to by Bhagwati, the girl Jasoda was playing outside the appellant's hou....
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....d and absconded also shows his guilty knowledge. In the normal course in case he was no party to the commission of the crime and the girl had been murdered without his knowledge, he should have gone in with the villagers when they came to search his house. The fact that he escaped and left it to his wife to give the search of his house shows that he had full knowledge that the dead body of Jasoda was lying inside his house. Since the girl Jasoda was done to death shortly after she was carried inside the house by Rahman and Zaibun the crime in all probability must have been committed in the presence of both the husband and wife. Considering what normally happens in villages, we think that it may be possible that the husband committed the murder in the presence of the wife who was a helpless spectator, but it is highly improbable that Zaibun killed the child without the consent and connivance of Rahman. We feel that if the crime was committed in the presence of Rahman it would be so committed only by him or by his wife with his active connivance. In either case full responsibility for the murder of the child would lie on his shoulders." 12. It would appear from the above ....
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....t any reasonable possibility of his innocence. 15. On the first circumstance, there was the evidence of Bhagwati only that he saw Jasoda playing outside the appellant's house at the time when he started for Madanpur. It was not his case that he saw the appellant also at that time. He, however, admitted that the road to Madanpur passed along his house and that the appellant's house was so situate that while leaving his house for Madanpur that house would not be visible to him. It would seem, therefore, that unless he went near that house, which he did not say he did, he could not have noticed Jasoda playing just outside the appellant's house. This part of his evidence thus throws doubt on his statement that he had seen the girl playing when he left for Madanpur. 16. Such a conclusion finds some support from another fact deposed to by Bhagwati, namely, that on his return when he learnt that the girl was missing he did not tell his family members that he had seen her playing outside the appellant's house when he left for Madanpur, nor did he straightway go to the appellant's house to inquire of him or his wife as to where the girl had gone from near their hou....
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....amongst them was the village chowkidar. As Bhagwati himself described, between him and where the appellant was, the place was packed with men. Considering the high feeling prevailing at that time after the girl's body was found, it seems somewhat difficult to believe that the appellant could have slipped away as deposed to by Bhagwati and the other witnesses. 20. While assessing the veracity of Bhagwati's evidence we have to consider not only these factors, but also the fact that while deposing about the statement which Zaibun was said later on to have made he attributed to her an admission that she had caught hold of the child when the appellant was strangulating her. This was clearly a false testimony as admittedly he had not attributed such a statement to Zaibun either in his first information report or before the committal court. By inserting that admission in her alleged statement, the attempt was obviously to make Zaibun an active participant in the crime. In the light of these facts it would be difficult to place implicit confidence in Bhagwati's word though he happens to be the unfortunate parent of the victim, whose incensed feelings at the tragedy, one can ....
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....Dhansiria gave the information of what she alleged she had seen that afternoon was highly inconsistent. As aforesaid, Bhagwati's case was that she reported this matter to him at his door when witnesses Ram Bali, Ram Kalap and others were present. According to Dhansiria herself, she did this at her door and only to Bhagwati and to Hira Lal. Witness Ram Kalap did not depose as Bhagwati had done; that he and the others had collected outside Bhagwati's door or that it was there that Dhansiria disclosed her information. According to him, Dhansiria had come to the door of Sarpanch Ram Bali where she disclosed what she had seen that afternoon. 25. Witness Hira Lal had yet another story to tell. According to him, Dhansiria came to his door at about 6 p.m. when she told him what she alleged she had seen that afternoon and that at that time no one, except his wife and children, was present. Apart from his version being quite different from that of the other witnesses, he did not go to Bhagwati to share this information with him or to the appellant to confront him with it but instead went in search of the girl to the neighbouring villages. He was certain that when he at last went t....
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....pellant's presence outside his door and his having given the warning. No mention was made by him of either of these two matters in his police statement. 31. The unanimity with which all these witnesses deposed as to the presence of the appellant at his door and his having uttered the warning to his wife coupled with their failure to mention these matters in their previous statements cannot be without significance. Both the facts were important from the point of view of the prosecution case, in that, it sought to prove the appellant's guilt by the proof of his presence at the time of the search. Yet, significantly they were not to be found in their earlier disclosures before the police or the committal court. 32. The aforesaid analysis of the evidence as regards (1) the presence of the appellant in the afternoon, (2) the fact of his and his wife carrying the child inside his house in the evening, the three pieces of circumstantial evidence relied on by the State against the appellant throws out considerable difficulty in holding that they were established, as Section 3 of the Evidence Act lays down, beyond any reasonable doubt. In such a state of evidence it is difficu....