J U D G M E N T The following Judgment of the Court was delivered: M. JAGANNADHA RAO, J.
This is an appeal by two of the accused Kamal Murum and Lakhiram Murmu, against the judgment of the High Court of Calcutta in Criminal appeal No.372 of 1986 dated 16.9.1987. In the Sessions Court there were in all four accused, namely, Rabi Murmu, the two appellants and Padmarani Murmu, the mother of Rabi Murmu. The Sessions Court convicted Rabi Murumu, and the two appellants under section 302/34 I.P.C. and awarded life imprisonment. The above-said three accused and Shrimati Padmarani Murmu, the mother of Rabi Murmu were also convicted under section 201/34 I.P.C. and each of them was sentenced to one year simple imprisonment. On appeal by the appellants as well as Rabi Murmu and Shrimati Padmarani Murmu, the judgment of the Sessions Court was affirmed by the High Court. Thee is no appeal by Rabi Murmu and Shrimati Padmarani Murmu to this Court from the judgment of the High Court. Appeal is preferred only by kamal Murumu and Lakhiram Murmu.
The deceased Chunaram Murmu was the brother of one Makur Murmu, husband of PW1. Rabi Murmu is accused No.1 and his mother Shrimati Padmarani Murmu is accused No.4 Rab Murmu’s house is said to be adjacent to the house of deceased Chunaram and the house of Chunaram and the house of informant Makur Murmu is one bigha away from the house of deceased Chunaram. The house of Kamal Murmu and Lakhiram Murmu (who are sons of one Nandlal) is stated to be near the house of the informant Makur Murmu separated by a drain (Nala).
The prosecution case was that on 23/24-2-1983 at about 1 A.M. the informant Makur Murmu (who has since died) i.e. husband of PW1 heard the alarm of Chunaram Murmu, the brother of Makur Murmu coming from the direction of the house of the accused Rabi Murmu. The informant and his wife (P.W.1) rushed to the house of the accused Rabi Murmu and found Chunaram being assaulted severely by Rabi Murmu and the two appellants Kamal Murmu and Lakhiram Murmu. It appeared to them that Chunaram was lying dead. All the three accused persons threatened P.W.1 and Makur Murmu not to shout. The informant and P.W.1 found Rabi Murmu and the appellants trying Chunaram’s body with a rope to a wooden log. Thereafter the accused persons told the informant that they were going to throw away the body of Chunaram. In late hours during the night the informant and his wife informed the villagers and some of their relatives including, Rabi Murmu(PW5), Rajuram, Sirupati (PW2), Manik Ghosh (PW3) about the incident. Thereafter these witnesses went in a group to the house of the accused Rabi Murmu but they did not find the dead body. They saw accused mother Shrimati Padmarani wiping out some blood stains from the courtyard. These witnesses then went to the police station and lodged an FIR. Police took cognizance of the offence and started investigation. Initially Rabi and his mother Padmarani were arrested. It is the prosecution case the Rabi made a confessional statement before the investigating officer leading to the recovery of the deadbody from the jungle of Chamtubundh. The investigating officer (PW6) held inquest on the dead body and sent it for post mortem to PW7. The further case of the prosecution was that the accused Rabi Murmu made a further confessional statement to PW6 leading to the recovery of a spade and rope from the water of the Dumuria canal. After completion of the investigation, the police filed chargesheet against the four accused. The charges against Rabi Murmu, Kamal Murmu, Lakhiram Murmu were framed under section 302/34 I.P.C. and also under section 201/34 I.P.C. while charge against accused Padmarani Murmu was only under section 201/34 I.P.C. The accused persons pleaded not guilty. In their statements recorded under Section 313 Cr.P.C. they did not come forward with any specific defence.
The learned Sessions Judge on a consideration of the evidence came to the conclusion that the evidence of PWs 1 to 3 was sufficient to hold Rabi Murmu, Kamal Murmu and Lakhiram Murmu guilty of the offence of murder of Chunaram. The learned Sessions Judge also came to the conclusion that the above three accused and Rabi’s mother Padmarani Murmu were guilty under section 201/34 I.P.C. The sentences were directed to run concurrently.
All the four accused filed appeal before the High Court of Calcutta. The High Court examined he evidence in greater detail. Inasmuch as the informant Makur Murmu died, his wife gave evidence as PW1. The High Court referred to her evidence in details. She sated that the deceased Chunaram was the brother of her husband Makur Murmu and he was living at a distance of one bigha from her house. That on the night of the incident at about 1 a.m. she heard the cries of Chunaram and the sound of assaults. She and her husband Makur Murmu rushed to the house of the appellant Rabi Murmu and found Chunaram lying dead in the courtyard in a pool of blood. Though she did not see the actual assault of Chunaram, she stated that she saw the three appellants namely Rabi Murmu, Kamal Murmu and Lakhiram Murmu tying up the body of Chunaram to a log with some ropes. When she and her husband enquired about the incident, the accused threatened her and her husband and directed them not to shout. The accused also refused to hand over the body of the deceased Chunaram. She and her husband then came back to their house. At that time one Sukhlal who is relative of the accused came to their house and prevented them from going out. At dawn after Sukhlal left, PW1’s husband went to report the incident to the neighbours. Thereafter, he came back alongwith some of the neighbours and went to the police station to lodge the First Information Report. He added that when she and her husband had gone earlier to the house of Rabi Murmu, she found Rabi’s mother Padmarani Murmu wiping out blood stains from the ground with a piece of wt cloth. The High Court then referred to the crossexamination of PW1 and observed that she admitted that fact in her statement before PW6, the investigating officer, she had not disclosed that she found Kamal Murmu and Lakhiram Murmu tying up the body of Chunaram with a rope. The High Court, therefore, held that her substantive evidence at the trial that she found these two appellants also tying up the body of Chunaram had to be excluded form consideration.
The High Court also considered the evidence of PW2 the co-villager and that of PW3 a cousin of Makur Murmu and stated that part of their evidence as to what Makur Murmu told them in the morning namely that Rabi and the two appellants murdered the deceased, was also to be excluded as inadmissible. Finally, the High Court came to the conclusion that Chunaram was murdered, that there was no direct evidence in respect of the murder of Chunaram and that the case rested slowly upon the circumstantial evidence inasmuch as none of the prosecution witnesses had seen the actual assault on the deceased. The High Court then set our thirteen circumstances as having been established by the prosecution. They are as follows:
"i) On the night between February
23 and 24, 1983 at or about 1 A.M.,
the cries of Chunaram and the sound
of assaults were heard from the
direction of the house of appellant
Rabi Murmu;
ii) Immediately thereafter Dhani
Murmu (PW1) sister-in-law of
Chunaram, went to Rabi’s house with
her husband and found Chunaram
lying dead in a pool of blood in
the courtyard of the house;
iii) appellant Rabi Murmu was found
tying up the body of Chunaram to a
wooden pole with ropes and
appellants kamal Murmu and Lakhiram
Murmu were standing by his side;
iv) When she enquired about the
matter she was threatened by all
the three appellants and asked not
to shout;
v) when she and her husband
demanded the dead body the
appellants refused to accede to
their demand;
vi) when came back home with her
husband sukhlal, a relative of the
appellants, came with them and
prevented them for leaving the
house:
vii) in the morning when the
neighbours went to the house of
appellant Rabi, they did not find
the body of Chunaram (deceased);
viii) on their asking, all the
three appellants pleaded ignorance
of any incident in their house;
ix) on the night of occurrence as
well as on the following morning
Padma Rani, mother of appellant
Rabi, was found wiping off traces
of blood from the courtyard;
x) on 24.2.73 at 11.30 a.m. the
Investigating Officer (PW6) seized
some blood stained earth and
control earth and the branch of an
encalyputs tree from the courtyard:
xi) Pursuant to the statement of
appellant Rabi and being led by
him, the Investigating Officer went
to the Chamtubad forest on the same
day at 16.05 hours where the dead
body was kept concealed, covered by
branches of a tree and dried
leaves;
xii) the dead body was pointed out
to Investigating Officer by
appellant Rabi;
xiii) Rabi also brought out a spade
and a number of ropes from the
water of a canal inside the
forest.’
The High Court then held that the above circumstances together with the evidence of the medical officer (PW7) would lead to the one and only conclusion that Rabi Murmu and the two appellants conjointly committed murder of Chunaram by brutally assaulting him with a spade and lathis and that they had also removed and concealed the dead body in the forest in order to keep it away.
It was urged for the two appellants, Kamal Murmu and Lakhiram Murmu in the High Court that so far the appellants were concerned, all that could be said to have been established was that they were standing by the side of the dead body at 1 a.m. in the house of Rabi Murmu, and they were, at the most, waiting there to help the appellant Rabi Murmu in removing the dead body to the forest. That would mean that if at all they were present and helped in removing the dead body; they could be found guilty under section 201/34 IPC and to under section 302/34 I.P.C.. This contention was rejected by the High Court by referring to the injuries which according to PW7 showed that different weapons like a spade and a lathi must have been used and that, therefore, the offence could not have been committed by one person alone. The High Court also observed that the fact that the appellants had threatened PW1 and her husband when they enquired about the incident and the fact that the accused told them not to shout and then refused to hand over the dead body and the further fact that these two appellants were arrested only on 28.2.1983 would show that they were absconding from the village before the arrival of the police and all these circumstances would lead to the inference that they had also taken part in the murder of Chunaram. The High Court also inferred from the evidence of PW2 that the deceased must have been brought to the house of Rabi Murmu either by force or by deceitful means at that unearthly house and this must have been preplanned by all the three accused, Rabi Murmu and the two appellants. The High Court further inferred from the evidence of PW2 that the dead body was recovered from a place two miles away and it could not have been carried to such a long distance suspended to a wooden pole unless Rubi Murmu had the help of the two appellants.
It was on the above basis that the High Curt affirmed the conviction and sentence of these two appellants.
In this appeal it is contended by the learned counsel for the appellants that the circumstantial evidence referred to by the High Court in its judgment is not sufficient to convict the appellants for committing the murder of Chunaram and the sentence under section 302/34 I.P.C. is liable to be set aside. Learned counsel submits that thee is no basis for the inference drawn by the High Court that the two appellants must have had a role to play in bringing Chunaram to the house of Rabi Murmu and there is no material to show any common intention on the part of the appellants and Rabi murmu to commit the murder of Chunaram. Learned counsel also submits that there is equally no evidence to show that as part of the said scheme the appellants must have participated in the murder of Chunaram at the residence of Rabi Murmu. The only evidence in the case is that of PW1 and her evidence only shows that these two appellants were standing near the dead body of Chunaram at 1 a.m. at the residence of Rabi Murmu. That part of PW1’s evidence in the Sessions Court wherein she stated that the appellants were also found tying the body had been discarded by the High Court as being inadmissible. We are of the view that the contention of the learned counsel for the appellants is liable to be accepted. In this context it is necessary to refer to the principles laid down by this Court in Earabhadrappa alias Krishnappa vs. State of Karnataka [1982 (2) SCC 330] to the following effect:
"In a case in which the evidence is
purely of a circumstantial nature,
the facts and circumstances from
which the conclusion of guilt of
the accused is to be drawn must not
only be fully established beyond
reasonable doubt and the facts and
circumstances should not only be
consistent with the guilt of the
accused but they must be in their
effect entirely incompatible with
the innocence of the accused and
must exclude every reasonable
hypothesis consistent with his
innocence."
Examining the thirteen pieces of circumstantial evidence listed out in the judgment of the High Court-which we have already set out - it will be noticed that circumstance Nos. (iii), (iv), (v) and (viii) only are relevant so far as the appellants are concerned. Circumstance No. (iii) merely states that the appellants were found standing by the side of Rabi Murmu. Circumstance No. (iv) states that the appellants and Rabi Murmu threatened PW1 and asked her not to shout. Circumstance No. (v) states that the appellants and Rabi Murmu refused to acceded to the demand of PW1 and her husband to handover the dead body. Circumstance No. (viii) states that when the appellants and Rabi Murmu were asked by the neighbours they pleaded ignorance of the incident.
In our view, from the aforesaid circumstances, it is not possible to infer any common intention on the part of the appellants for committing the murder of Chunaram or in the actual act of killing him.
The High Court no doubt referred to the evidence of the medical officer, PW7 to show that the nature of injuries revealed that more than one weapon must have been used namely a spade and a lathi. In our view, from that fact alone, it is not possible to presume or infer the participation of the appellants in the crime.
For the aforesaid reasons, this appeal is allowed and the judgment of the High Court is set aside so far as the appellants conviction and sentence under section 302 I.P.C. read with 34 is concerned. As the appellants have already undergone the sentence of one year for conviction under Section 201 read with Section 34, they shall be released.