# STATE OF MADHYA PRADESH v. PHOOLCHAND RATHORE

- **Citation:** [2023] 5 S.C.R. 601
- **Court:** Supreme Court of India
- **Decided:** 2023-04-28
- **Case number:** Criminal Appeal Nos. 1315-1316 of 2023
- **Bench:** Sanjay Kishan Kaul, Manoj Misra, Aravind Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-madhya-pradesh-v-phoolchand-rathore-37097
- **Pages:** 23

## Headnote

Penal Code, 1860 - ss. 302 and 201 - Acquittal under -
Prosecution rested its case on the circumstances, inter-alia, (a) the
accused bore a grudge against his wife for keeping jewellery with
her sister (PW8); (b) on the fateful day, during day time, accused
on that count, quarrelled with PW8 and threatened to kill the
deceased and set the house on fire; (c) in the evening of that fateful
day, the accused quarrelled with the deceased and took her with
him on a bicycle, while extending threats that he would kill her; (d)
later, that evening, the deceased was found in a seriously injured
condition; (e) the deceased died on account of those injuries; and
(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
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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 w

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 [2023] 5 S.C.R. 601
601
STATE OF MADHYA PRADESH
v.
PHOOLCHAND RATHORE
(Criminal Appeal Nos. 1315-1316 of 2023)
APRIL 28, 2023
[SANJAY KISHAN KAUL, MANOJ MISRA AND
ARAVIND KUMAR, JJ.]
Penal Code, 1860 - ss. 302 and 201 - Acquittal under -
Prosecution rested its case on the circumstances, inter-alia, (a) the
accused bore a grudge against his wife for keeping jewellery with
her sister (PW8); (b) on the fateful day, during day time, accused
on that count, quarrelled with PW8 and threatened to kill the
deceased and set the house on fire; (c) in the evening of that fateful
day, the accused quarrelled with the deceased and took her with
him on a bicycle, while extending threats that he would kill her; (d)
later, that evening, the deceased was found in a seriously injured
condition; (e) the deceased died on account of those injuries; and
(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
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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]
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(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
STATE OF MADHYA PRADESH v. PHOOLCHAND RATHORE
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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.
Case Law Reference
(1982) 1 SCC 352
referred to
para 20
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[2005] 1 SCR 710
referred to
para 21
[2020] 3 SCR 562
referred to
para 22
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos.1315-1316 of 2023.
From the Judgment and Order dated 11.12.2015 of the High Court
of M.P. Principal Seat at Jabalpur in CRLR Nos.1292 and 02 of 2015.
Pashupathi Nath Razdan, Mrs. Anuradha Mishra, Vikas Bansal,
Advs. for the Appellant.
Yashraj Singh Deora (Amicus Curiae), Abhishek Singh, Adv. for
the Respondent.
The Judgment of the Court was delivered by
MANOJ MISRA, J.
1. Leave granted.
2. These appeals are by the State of Madhya Pradesh against the
judgement and order of the High Court of Madhya Pradesh at Jabalpur
(for short "the High Court") dated 11.12.2015 in Criminal Appeal No.1292
of 2015 connected with Criminal Reference No.2 of 2015 whereby, the
order of conviction and sentence including death penalty awarded to the
respondent by the Court of District and Sessions Judge, Anuppur in
Sessions Trial No.72 of 2010, under sections 302 and 201 of the Indian
Penal Code, 1860 (for short "IPC") has been set aside and the respondent
has been acquitted.
3. To have a clear understanding of the issues raised in these
appeals a brief description of the prosecution case and the evidence led
by the prosecution would be apposite.
Introductory Facts
4. The prosecution story narrated in the first information report
(FIR), lodged by deceased's brother Kamla (PW2), is that the accusedrespondent was unhappy that his wife Sundariya (the deceased) had
kept her jewellery with her sister Jaimatiya Bai (PW-8); on the fateful
day i.e. 01.02.2010, at around 1400 hours, the accused came to the
house of PW2, while PW8 was there, fought with PW8 and told her that
he would kill Sundariya and set the house on fire; when PW2 returned
from his shop at around 1900 hours, on getting the above information, he
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telephoned Madhuri (PW4), daughter of Sundariya, who informed PW2
that her father had taken her mother on a bicycle towards the field while
making utterances that he would kill her. On receipt of information from
PW4, PW2 came to the village where Sundariya resided and went to
search her out with the help of Manoj (not examined) and PW2's brotherin-law Mathura (PW3). During the course of search, they found the
deceased lying seriously injured between the railway tracks. They,
therefore, rushed her to Jaithari Hospital but, on way, she succumbed to
her injuries. The FIR was promptly lodged at P.S. Jaithari on 01.02.2010
at 2130 hours expressing suspicion against the respondent (i.e. the
accused) of having killed his wife.
5. As per arrest memo (Ex. P-11), the accused was arrested on
02.02.2010, at about 1240 hours, from Seoni Tri-section. Vide Ex. P-9,
on the same day i.e. 02.02.2010, at 1300 hours, a disclosure statement
of the accused was recorded wherein, he assured recovery of stones
(gitti) and blood-stained pant and shirt kept in his hut. Pursuant thereto,
vide seizure memo (Ex. P-10), on 02.02.2010, at 1400 hours, a moss
coloured full shirt and dark brown full pant with blood stains on them,
three blood-stained stones with hair stuck on it and one old hero jet cycle
were recovered from that hut.
6. Interestingly, on the same day, at the same time i.e. 1400 hours,
vide Ex. P-12, another seizure was made from near the railway line of 5
blood-stained gravel (gitti - stone), 5 plain gravel (gitti - stone), blood
stained red coloured saree and chappals.
7. On completion of the investigation, a charge-sheet was laid
against the appellant and, after taking cognizance thereon, the case was
committed to the Court of Session. The Sessions Court charged the
appellant for committing murder of his wife on 01.02.2010 at 2000 hours,
punishable under section 302 IPC, and of concealing blood-stained stones/
shirt/pant and cycle used in the offence with a view to remove evidence
thereof, punishable under Section 201 IPC. The accused pleaded not
guilty and claimed trial.
Prosecution Evidence
8. As there existed no eyewitness account of the murder, the
prosecution rested its case on circumstances, inter alia, (a) the accused
bore a grudge against his wife for keeping jewellery with her sister (PW8);
(b) on the fateful day, during day time, accused on that count, quarrelled
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with PW8 and threatened to kill the deceased and set the house on fire;
(c) in the evening of that fateful day, the accused quarrelled with the
deceased and took her with him on a bicycle, while extending threats
that he would kill her; (d) later, that evening, the deceased was found in
a seriously injured condition; (e) the deceased died on account of those
injuries; and (f) blood-stained clothes etc. were recovered at the instance
of the accused thereby making the chain complete. To prove these
circumstances, the prosecution examined 12 witnesses. Gist of their
testimony is noticed below:
(i)
PW-1 - Ganga Bai
She is the aunt of the accused. She did not support the
prosecution case and was accordingly declared hostile.
Nothing much turns on her testimony.
(ii)
PW-2 - Kamla Singh Rathore (the informant)
He deposed about - receipt of information, at 1900
hours, of the quarrel that took place on the fateful day during
day time; search operation; discovering the deceased, at
around 2000 hours, in an injured condition near railway
track; rushing her to the hospital; the deceased succumbing
to her injuries on way to the hospital; and lodging of the
FIR. During cross-examination, PW2 admitted that no
quarrel/fight took place in his presence. On being questioned
as to how PW2 communicated with PW4 on that fateful
day, PW2 stated that PW4 had used mobile of some third
person but could not disclose his name or number.
(iii)
PW-3 - Mathura Prasad Rathore
He corroborated PW2's statement that the deceased
was found lying near the railway tracks and from there she
was rushed to Hospital though she succumbed to her injuries
on way.
(iv)
PW-4 - Madhuri Singh Rathore (Daughter of the
deceased)
She is the star witness. She deposed about - fights
between her father (the accused) and mother (the
deceased); her returning from maternal uncle's home at
1630 hours and noticing her father and mother fighting/
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[MANOJ MISRA, J.]
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quarrelling and, later, her father forcibly taking her mother
on his cycle to the fields. PW4 also stated that she followed
them up to the village pond but, on being scolded, she came
back and that near the pond, she met Sushila (PW-12), her
paternal aunt, to whom she narrated the incident.
Whereafter, on coming back, she made a phone call to her
maternal uncle (PW2). Then her maternal uncle called back
to know the whereabouts of her mother. When she told him
that her father had taken her mother and had asked her to
remain in the house, her maternal uncle came to the village
in search of her mother. PW4, during her deposition, added
that in between her father had returned alone and had told
her that he had killed her mother.
During cross-examination, PW4 admitted that the
ornaments that were kept by her mother with her aunt (i.e.
mother's sister) were returned by her aunt eight days before
the incident. She also admitted that on the fateful day she
gave her examination from 1100 hours till 1500 hours and
that, at present, she is living with her maternal uncle. PW4
was also confronted with her previous statement wherein
there was an omission regarding confession made by her
father.
(v)
PW-5 - Dr. Sunil Khanna (Autopsy Surgeon)
 He proved the autopsy report (Ex.P-8) wherein he
recited eight lacerated wounds, ante mortem in nature,
caused by hard and blunt object within 24 hours of
examination conducted on 02.02.2010 at 1100 hours
According to his opinion, deceased died within 24 hours of
the examination, on account of head injuries leading to
haemorrhage, resultant shock and cardio respiratory failure.
During cross examination, he stated that if train is moving
and any person, walking on foot, gets dashed by the train
then such injuries may occur.
 This witness was re-examined and questioned by Court.
At that stage, the witness stated that if injuries were
sustained during a train accident then it might reflect fracture
on face. He accepted the possibility of injuries being caused
as a result of assault with Gitti (Gravel - small stones).
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(vi)
PW-6 - Shivkumar Rathore
He is a witness to the disclosure statement and seizure
of blood-stained clothes etc. He, however, did not support
the prosecution case and was therefore declared hostile.
During cross-examination he admitted his signature on the
memorandum(s) but claimed that his signatures were
obtained by the police at the police station without informing
him about the contents of the documents.
(vii)
PW-7 - Kiran @ Rambai
She is another daughter of the deceased. She stated
that at the time of the incident, she was in the house of her
maternal uncle namely, Kamla Rathore, at Jaithari. During
cross examination, she stated that disputes between her
father and mother used to take place but they use to get
resolved.
(viii) PW-8 - Jaimatiya Bai Rathore
She is sister of the deceased Sundariya. She deposed
that the dispute between the deceased and her husband
was on account of ancestral properties coming from
deceased's mother side. She stated that she does not have
any other information about the incident. At this stage, the
witness was declared hostile and was allowed to be crossexamined by the prosecution.
During cross-examination, at the instance of prosecution,
she stated that there was theft at Sundariya's place
therefore, for security reasons, Sundariya had kept her gold
and silver at her house which, a week before the incident,
were sent by her to the house of Sundariya. She also stated
that the accused had come to her house and had threatened
to kill Sundariya and set the house on fire.
During cross-examination at the instance of the accused,
upon a suggestion that a family dispute was going on, PW8
stated the accused was pressurising the deceased to take a
share in her ancestral property from her brother and since
she was not agreeing to it, the accused had a dispute with
her.
STATE OF MADHYA PRADESH v. PHOOLCHAND RATHORE
[MANOJ MISRA, J.]
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(ix)
PW-9 - Rajiv Singh
He was the Halqa Patwari (Revenue Circle Inspector/
Lekhpal) who inspected the crime scene under orders of
the Tehsildar and prepared the spot panchnama (Ex. P13) as also site plan (Ex. P-14) of the place from where the
deceased was taken in an injured condition to the hospital.
(x)
PW-10 - Ashok Kumar Rathore
He is son of PW2 who brought his vehicle to take the
deceased along with PW2 to the hospital. He corroborated
the evidence that the deceased succumbed to her injuries
on way to the hospital.
(xi)
PW-11 - Satish Dwivedi - Investigating Officer
He proved the various stages of investigation including
registration of the FIR on 01.02.2010 at 2130 hours.
Interestingly, as per his deposition, he visited the site on
02.02.2010 and vide seizure memo (Ex.P-12) lifted bloodstained gravel, plain gravel, blood-stained saree and two
slippers from the spot. He deposed about - arresting the
accused vide memo Ex.P-11; recording his disclosure vide
Ex.P-9; and effecting recovery vide memo (Ex.P-10). He
stated that sealed articles were sent for forensic
examination. He also produced the recovered articles as
material exhibits.
During cross-examination, though PW11 admitted
knowing PW2 (informant) from before but denied the
suggestion that he conspired with PW2 to falsely implicate
the accused. In paragraph 25 he stated that saree was not
found on the body of the deceased. He also admitted that a
new railway track was being laid there and in that
connection machines were there. However, he denied the
suggestion that in connection with laying new track hundreds
of workers (labourers) were there. In paragraph 32 he
denied the suggestion that the accused had reached the
police station on 01.02.2010 itself. He also denied the
suggestion that the alleged arrest, disclosure and recovery
at the instance of the accused are bogus.
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In respect of the distance between Seoni Trisection and
Seoni village, PW11 denied the suggestion that the distance
between the two is of 6 km. Rather, claimed it to be 600
meters. He also admitted that the witnesses of the
memorandum were not residents of Seoni Trisection.
(xii)
PW-12 - Sushila (Sister-in-Law of the Deceased)
PW-12 disclosed no knowledge about the prosecution
case and was therefore declared hostile.
Forensic Reports
9. In addition to the oral testimony of the witnesses, forensic reports
confirmed presence of human blood on saree, shawl, petticoat, blouse,
shirt and stone. Likewise, blood was found on the gravel recovered from
the place of occurrence though its origin could not be determined as it
had disintegrated. Similarly, the classification of the blood could not be
made as it had disintegrated.
Statement under section 313 Cr.P.C.
10. The incriminating circumstances appearing in the prosecution
evidence were put to the accused while recording his statement under
section 313 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.")
The accused denied the incriminating circumstances and claimed that
he has been falsely implicated.
Findings of the Trial Court
11. The Trial Court found the following incriminating circumstances
proved - (a) the deceased was assaulted, abused and forcibly taken by
the accused on a bicycle and she did not return thereafter rather, two
hours later, was found in badly injured condition; (b) the accused made
extra judicial confession of his guilt to his daughter (PW4); (c) human
blood was found on the clothes recovered; and (d) except bald denial no
explanation was offered by the accused. According to the trial court, the
said circumstances constituted a chain so far complete that it established
beyond doubt that it was the accused and no one else who committed
the crime. To conclude as above, the Trial Court placed reliance on the
testimony of PW-4. Upon finding the accused guilty, the trial court
convicted the accused and awarded death penalty to him under section
302 IPC and 7 years RI under section 201 IPC. For confirmation of
death penalty, a reference was made to the High Court under section
STATE OF MADHYA PRADESH v. PHOOLCHAND RATHORE
[MANOJ MISRA, J.]
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366 Cr.P.C., which was registered as Reference No.2 of 2015. In the
meantime, the accused filed criminal appeal against the order of conviction
and sentence, which gave rise to Criminal Appeal No.1292 of 2015 before
the High Court. The appeal and the reference were connected and decided
together by the High Court vide impugned judgment and order dated
11.12.2015.
High Court Findings
12. The High Court set aside the judgment and order of the trial
court and acquitted the appellant. While doing so, it discussed the testimony
of prosecution's star witness i.e. PW 4 in paragraphs 29 and 30 and did
not find the prosecution evidence reliable and trustworthy for the reasons
recorded by it in paragraphs 31, 32, 33, 34 and 35 of its judgment, which
are extracted below:-
"31. This statement of Madhuri (PW-4) the main witness to the
case becomes doubtful in view of the several omissions and
contradictions contained therein. The first is the fact that she states
that her father took her mother forcibly on the cycle and while
doing so he was seen by Ganga Bai (PW-1) and Sushila (PW-12)
but both these witnesses have clearly denied this fact or any
knowledge about the incident and have been declared hostile.
Secondly, this witness Madhuri (PW-4) in her statement, on the
one hand, states that her father came back after committing the
crime in bloodstained clothes, changed them in the night of 1.2.2010,
hid them in the cattle shed and thereafter washed the clothes in
the morning of the next day and spread them to dry on the roof
whereas in the same paragraph she has stated that her father the
accused appellant was arrested in the night of the incident i.e.
1.2.2010 from the 'nala' with an axe in his hand. Thirdly, it is also
apparent that she states that her father hid the clothes in the house
itself and subsequently he washed and dried them in the house
itself whereas the bloodstained clothes of the accused appellant
are said to have been seized from the hut situated in the field vide
seizure memo Exhibit P-9 and seizure panchnama Exhibit P-10.
The statement of Madhuri (PW-4) is in direct conflict with and in
contradiction of the prosecution story which in turn makes it clear
that one of them is false thereby casting a deep shadow of doubt
on the case against the appellant.
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32. From a perusal of the aforesaid facts and circumstances it is
also clear that:
(1) the statement made by Madhuri (PW-4) is unreliable and is
full of embellishments, exaggerations as well as contradictions
and omissions on account of the fact that her statement
regarding fighting between the appellant on account of jewellery
is apparently false in view of the clear and specific statement
of Jaimataiya Bai (PW-8) who has emphatically stated that
she had returned the jewellery eight days before the incident;
(2) her statement regarding constant fighting between her
parents on account of the jewellery is not corroborated and
supported by her elder sister Kiran @ Rambai (PW-7) who
has in fact stated that the fight between her parents was usual
and normal fight between husband and wife;
(3) that she has stated that her father, after committing the
crime, returned back with bloodstained clothes, hid them in the
cattle shed, changed his clothes and went away and thereafter
washed his clothes in the morning of the next day after the
incident i.e. on 2.2.2010 whereas in the same breath she has
also asserted that her father was arrested on the same night of
the incident itself i.e. on 1.2.2010 by the police with an axe in
his hand whereas there is no mention in her statement to the
effect that her father had gone to the field with an axe in his
hand or that he had taken the axe after the incident from the
cattle shed.
(4) There is also material contradiction in her statement to the
effect that she had gone to her maternal uncle's house to give
her examination whereas in her own statement she has stated
that her mother told her to go to her maternal uncle's house.
(5) Her statement is also quite unnatural inasmuch as she has
stated the fact that she rang her maternal uncle Kamal (PW2) informing him about the incident but did not inform her
paternal uncle or any of her neighbours or persons residing
nearby.
33. It is also pertinent to note that a bare perusal of the case diary
statement of Madhuri, Exhibit P-38, and the statement made by
her in Court clearly indicates that there is omission and
STATE OF MADHYA PRADESH v. PHOOLCHAND RATHORE
[MANOJ MISRA, J.]
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contradiction in regard to the alleged extra-judicial confession made
by the accused to Madhuri (PW-4) as she has not stated anything
about any such extra-judicial confession in her case diary
statement. In fact, this contradiction and omission, deficiency and
weakness in the statement of Madhuri (PW-4) has also been taken
note of by the court below in paras 33 and 44 of its judgment but
the court below has chosen to ignore the same on the ground that
there is a mistake committed by the prosecutor in recording of
her statement and the interest of justice demands that the omissions
and contradictions be ignored.
34. The fact that her father had taken her mother forcibly to the
field and had told her that he would murder her mother but she did
not inform this fact to either her paternal uncle who is her neighbour
or any other neighbour residing nearby or any other person residing
in the locality or her acquaintance except her maternal uncle who
was residing 2 kms away also casts a shadow of doubt upon her
statement as this conduct is unnatural. The aforesaid omissions,
contradictions and embellishments in the statement of Madhuri
(PW-4) when read with the uncorroborated and unsupported
unnatural statements made by her to the effect that her father
told her on three occasions that he would murder her mother and
after committing the crime again came back and confessed to the
commissions of the crime which confession was not disclosed by
her in her case diary statement makes it clear that her statement
cannot be said to be of unimpeachable and sterling quality and
cannot be relied upon as it does not satisfy the tests laid down by
the Supreme Court in the above referred judgments.
35. In view of the aforesaid detailed analysis of the evidence of
Madhuri (PW-4) we arrive at a conclusion that her statement is
full of embellishments, exaggerations and material discrepancies
and, therefore, we find ourselves unable to pick out the grain of
truth from the falsehood of her statement."
13. In addition to above, the High Court noticed that neither younger
sister of Madhuri (PW4) nor neighbours or members of the locality were
produced as witnesses to lend assurance to the prosecution story. Further,
the original motive for the crime was a dispute arising from keeping of
jewellery by the deceased with her sister, whereas the statement of
prosecution witnesses established that the jewellery had been returned
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much before the incident, therefore, there existed no cogent motive for
the crime. In paragraph 40 of the judgment, the High Court observed
that the recovery of blood-stained clothes and stones was doubtful
because the seizure witness Shiv Kumar Rathore (PW6) had
categorically denied seizure of those articles in his presence and had
stated that his signatures were obtained at the police station. Moreover,
the evidence recorded revealed that the accused was arrested in the
night of 01.02.2010 itself. The High Court also noticed that the FSL
report Ex.P-35 could not confirm the blood group on the clothes as to
match it with the deceased. Otherwise also, once the seizure of articles
became doubtful and as per the statement of PW4 the accused had
washed off those clothes and had kept them in the house to dry, the
entire prosecution story in respect of seizure of blood-stained clothes
from the hut was rendered doubtful. Taking a conspectus of the
circumstances highlighted above, the High Court opined that the case
set up by the prosecution appeared extremely unnatural and hard to
believe. The High Court therefore discarded the circumstance of seizure
of stones and blood-stained clothes from the hut of the accused and
upon finding that there were glaring contradictions in the prosecution
case, irreconcilable in nature, gave the benefit of doubt to the accused.
14. We have heard learned counsel for the parties and have perused
the record.
Submissions on behalf of the Appellant
15. The learned counsel for the appellant submitted that this is a
case where a daughter has deposed against her own father. The testimony
of PW-4 is straightforward and coupled with other evidences establishes
beyond doubt the following:
(i)
that there used to be fights/quarrels between the deceased
and the accused;
(ii)
that on the fateful day, there was a quarrel between the
two; and
(iii)
that soon after the quarrel the deceased was taken on a
bicycle by the appellant to the field and shortly thereafter
near the hut/field of the accused, on a railway track, the
deceased was found in a seriously injured state suggesting
that she was badly assaulted.
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16. It was argued that the High Court wrongly discarded the entire
statement of PW4 upon noticing that she was not truthful on certain
aspects, namely, - the accused had returned alone from the field wearing
blood-stained clothes, changed his clothes in the house, washed them
and made an extra judicial confession to PW4. It was contended that
falsus in uno, falsus in omnibus doctrine is not applicable in India
therefore, the High Court ought to have severed the unreliable part from
the remaining part, noticed above, and examine whether the remaining
part on its own could sustain conviction, particularly, when there was no
explanation forthcoming from the accused as to where he was during
that period and how his wife sustained those injuries. It was argued that
the evidence that the accused took the deceased on cycle to the field
and shortly thereafter, near the field, in between railway tracks, the
deceased was found with multiple injuries, by itself, in absence of any
explanation from the accused as to when he parted company of the
deceased, was sufficient to record conviction.
17. In addition to the above, the learned counsel for the appellant
submitted that it is a case where the deceased had died at around 2000
hours on 01.02.2010, the FIR was promptly lodged at 2130 hours narrating
the circumstances in which the incident occurred and those circumstances
have been confirmed by the testimony of prosecution witnesses therefore,
even if subsequent story of confession/recovery is discarded, the proven
circumstances by itself form a chain so complete as to sustain conviction
of the accused as justifiably recorded by the trial court. Consequently, it
was prayed, the judgment and order of the High Court be set aside and
the Trial Court's judgment and order be restored.
Submissions on behalf of the respondent -accused
18. Per contra, the learned counsel for the respondent submitted
that the view taken by the High Court is a plausible view and is not
perverse as to warrant an interference under Article 136 of the
Constitution of India. It was urged that the High Court is a final court of
fact and the view of the High Court is not in ignorance of any evidence
or by misreading any piece of evidence. Its view being a plausible view,
based on analysis of the evidence, no interference with it is called for,
particularly when the case rests on circumstantial evidence.
19. It was also urged that the testimony of PW4, when read as a
whole, does not inspire confidence as it is found unreliable on several
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aspects therefore, being the sole witness of the circumstance that the
deceased was taken from home by the accused, could not on its own
form the basis of conviction. More so, when the original motive stood
not proved giving rise to possibility of false implication on account of
property dispute with informant (PW2) as would be clear from the
statement of PW8, which possibility gains support from the statement of
the Investigating Officer (PW11) that he had known the informant (PW2)
from before. More so, when a false arrest/disclosure and recovery was
set up. It was also argued that the public witnesses examined by the
prosecution have disclosed about the arrest of the accused in the night
itself whereas, the police witnesses have tried to disclose his arrest on
the next day leaving them opportunity to plan a case against him. For all
the reasons above, it was prayed, the view taken by the High Court is a
plausible view, not liable to be interfered.
Discussion and Analysis
20. Having considered the submissions and perused the record,
before we proceed further, it would be useful for us to notice the law as
to when it would be appropriate for this Court, exercising its power
under Article 136 of the Constitution of India, to reverse an acquittal into
a conviction. Normally, the Court is reluctant to interfere with an order
of acquittal. But 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 (See: State of U.P. v. Sahai & Others1).
21. In State of M.P. & Others v. Paltan Mallah & Others2,
reiterating the same view it was observed:
"8. ... This being an appeal against acquittal, this Court would be
slow in interfering with the findings of the High Court, unless
there is perverse appreciation of the evidence which resulted in
serious miscarriage of justice and if the High Court has taken a
plausible view this Court would not be justified in interfering with
the acquittal passed in favour of the accused and if two views are
possible and the High Court had chosen one view which is just
1 (1982) 1 SCC 352
2 (2005) 3 SCC 169
STATE OF MADHYA PRADESH v. PHOOLCHAND RATHORE
[MANOJ MISRA, J.]
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and reasonable, then also this Court would be reluctant to interfere
with the judgment of the High Court."
22. In a recent decision rendered by this Court in Basheera Begam
v. Mohd. Ibrahim & Others3, it was observed:
"190. ... Reversal of a judgment and order of conviction and
acquittal of the accused should not ordinarily be interfered with
unless such reversal/acquittal is vitiated by perversity. In other
words, the court might reverse an order of acquittal if the court
finds that no person properly instructed in law could have upon
analysis of the evidence on record found the accused to be "not
guilty". ..."
23. Seen in light of the decisions above, we would examine whether
there is any perversity in the view taken by the High Court while converting
conviction into an acquittal. Admittedly, this is a case based on
circumstantial evidence. There is no direct eye witness account of the
murder. The body of the deceased was not found within the confines of
her house but in the open on a railway track. In such circumstances to
sustain a conviction the court would have to consider - (i) whether the
circumstances relied by the prosecution have been proved beyond
reasonable doubt; (ii) whether those circumstances are of a definite
tendency unerringly pointing towards the guilt of the accused; (iii) whether
those circumstances taken cumulatively form a chain so far complete
that there is no escape from the conclusion that within all human probability
the crime was committed by the accused; (iv) whether they are consistent
only with the hypothesis of the accused being guilty; and (v) whether
they exclude every possible hypothesis except the one to be proved.
24.