Tripura High Court
Case BriefsHigh Courts

   

Tripura High Court: The Division Bench of Amarnath Goud and Arindam Lodh, JJ. allowed an appeal which was filed against the judgment of Sessions Judge convicting the appellant under Section 302 of the Penal Code, 1860 (IPC).

Marriage ceremony was solemnized in between the deceased Sima and the accused s. The complainant, father of the deceased alleged that since for the last ten years after marriage, the petitioner's daughter (wife of accused) was subjected to cruelty both physically and mentally. On 07-04-2017, the complainant came to know from his son that his daughter was no more alive. Accordingly, the complainant along with others visited the rented house of his deceased daughter and found his daughter in hanging condition with some blood stain on her face and nose. He alleged that the accused murdered his daughter and after murder, he hung her body and committed this heinous offence due to the abatement of his brother. On receipt of the said complaint, FIR under section 498-A, 302, 109 of IPC was registered.

The Trial Court had found that though the prosecution was able to prove their case against accused but the evidence on record was not sufficient to come to a conclusion that accused was instigated by the brother and thereby, committed any offence as charged against him. Thus, the instant appeal.

Senior counsel appearing for the appellant emphasized that it is a case of suicide but it is not the case of homicide. Addl. P.P. appearing for the state stated that the medical evidence is not a conclusive proof in the present case but it has been corroborated by the statement of the land lady and the minor daughter that the accused was present in the hut. He has further submitted that the corroboration, the last seen together, the special knowledge is the case of the prosecution.

The Court noted that PW-21 who had conducted the postmortem examination was inexperienced and had no special knowledge in forensic segments and even the medical evidence had not been categorically confirmed with regard to the death of the deceased. The Court thus observed that mere presence of the accused persons and the last seen of offence along with the child in the hut with the deceased woman (wife) in a hanging position cannot draw an inference and the circumstantial evidence cannot be connected that the husband had killed the wife.

The Court allowed the appeal holding that the prosecution failed to prove his case beyond reasonable doubt against the accused person.

[Akhil Das v. State of Tripura, CRL.A.(J)57 of 2020, decided on 20-07-2022]


Advocates who appeared in this case :

Mr P.K. Biswas, Advocate, for the Appellant(s);

Mr P. Majumder, Mr S. Ghosh, Addl. P.P., Mr J. Majumder, Advocate, for the Respondent(s).


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: Farjand Ali, J. dismissed the bail application of petitioner being accused of honour killing and observed that the investigating agency had left some facts unattended.

The facts of the case are such that the FIR was registered at the instance of the complainant  who is the father of the deceased . The complainant stated that he is a resident of bundi and from last one and a half years his son was  living in Kota. The dead body of his son was observed in “Barda of Jakhmund”. The petitioners were apprehended and were sent to judicial custody after investigation. The present bail application(s) was preferred by accused petitioners who are in judicial custody for the offences punishable under Sections 302, 201, 120- B and 364 of the Penal Code, 1860.

Counsel for the State relied on autopsy report, the last location of the deceased in the company of accused persons, death threats reported by the deceased on numerous occasions, CCTV footage as well as call details to oppose the present bail application.

The Court observed that the instant case has its own peculiar facts which are circumstantially diffusing smell of intent-full homicidal death on account of honour and prestige i.e., having a strong trait of honour killing.

The Court also observed that the substratum of the present case predominantly based upon circumstantial evidence, as no direct evidence or eye-witness is at stand-by for the same. More so, this Court is very well aware of the fact that the present case of the accused petitioner(s) is to be dealt to the extent of adjudication on the issue of bail only. Thus, the appreciation and meticulous evaluation of the facts and circumstances are not ordinarily warranted.

The exercising of judicial discretion as well as invoking the sense for exercising judicial discretion lies with the Court. In order to reach a plausible conclusion, over an issue placed before it, the character of such relevant facts and circumstances of the case are important. As the character of relevant facts and circumstances tends to display two probable sides of an issue; there the judicial discretion recognizes that side of an issue which is closer and more pregnant with sound legal traits based upon the parameters of Rule of Law. Thus, there is a fine distinction in between final hearing on merits and hearing a bail plea under section 439 CrPC.

The Court further noted that that there is no straight jacket formula for grant and dismissal of a bail but guiding by the judicial pronouncements on the issue of bail, it is clear that every case has its own peculiar facts and circumstance attached to it.

The Court observed that after perusing the charge-sheet, the chain of events tentatively showing a well-designed conspiracy and the complicity of every accused person is very much available on record.

The Court thus held the present case is not a fit case for extending bail to the accused petitioners at this stage. Resultantly, both the bail applications filed by the accused (s)are hereby dismissed.

[Bhim Saini v. State of Rajasthan, 2022 SCC OnLine Raj 992, decided on June 10, 2022] 

  

Appearances 

For Petitioner(s): Mr. A.K. Gupta and Mr. Aniket Sharma, Mr. Anil Upman 

For Respondent(s): Mr. Ghanshyam Singh, Mr. Mangal Singh Saini, Mr. R.P. Vijay Mr. Digvijay Singh 


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Joymalya Bagchi and Ananya Bandyopadhyay, JJ. allowed an appeal which was directed against the judgment and order convicting the appellant for commission of offence punishable under Sections 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay fine.

A  10 year old boy, had gone out to fly kite with his friends and didn’t return that evening, next day body of the boy was found lying in the canal. Two days later, father of the boy returned to his native village from his place of work at Mumbai and filed written complaint alleging his son had been murdered by an unknown person. Couple of days later, he made statement implicating the appellant who was the Moulabi of a nearby mosque. It was alleged that the appellant had illicit relationship with mother of the boy. The child had disclosed the illicit relationship to his father and accordingly appellant nursed a grudge against him. In course of investigation, a gunny bag and rope were recovered from an open spot near the mosque. Appellant absconded and was later arrested. In conclusion of trial the above mentioned punishment was granted.

Counsel appearing for the appellant submitted there was no direct evidence implicating the appellant in the crime. FIR was registered against unknown accused and motive to commit the crime had not been proved. There was no evidence on record that the child was last seen with the appellant prior to his death. Gunny bag and rope were recovered from an open space and did not implicate the appellant in any manner whatsoever. Appellant had gone to his native place in Bihar and was subsequently arrested and it cannot be said that he had absconded. He pleaded that mere abscondence does not establish guilt of an accused.

Counsels for the State argued appellant had strong motive to commit the crime as the child had seen the appellant and his mother Rasida in a compromising position.

The Court noted that the prosecution case is based on circumstantial evidence and there was no direct evidence that the appellant had murdered the victim. The court reminded that when case is based on circumstantial evidence it is the duty of the prosecution: –

(a) to prove all the circumstances relied upon against the appellant, beyond doubt;

(b) the circumstances so proved must form a complete chain which irresistibly points to the guilt of the accused and rules out all other possible hypothesis of innocence.

This Court had to identify whether the above requirement of law have been satisfied in the facts of the present case. The Court after perusing the evidence found that it cannot be said that the intimacy between appellant and her mother Rashida was divulged only by Farhad as  uncle of Farhad, had also informed his brother about such relationship and thus it is difficult to understand why the appellant would nurse grudge against the minor son of his lover and not against other relations who had also informed the former about his illicit relationship. Hence, motive to commit the crime did not appear to be convincing.

Coming to the other circumstance, namely, recovery of gunny bag and rope from the backside of the mosque of the appellant, the Court noted that the articles were recovered from an open space which was accessible to all. Moreover, there was nothing on record to show that the gunny bag or rope so recovered were used to murder the victim or dispose of the body in the canal. No evidence was forthcoming that on the fateful evening or immediately prior to the death of the victim, appellant was last seen with the child.

Regarding the abscondence of the appellant immediately after the incident which is strongly relied on,  the Court relied on the judgment of the Supreme court in Sk. Yusuf v. State of W.B., (2011) 11 SCC 754 where it was held that it settled law abscondence of an accused by itself does not establish his guilt.

“31. … It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely on being suspected, out of fear of police arrest and harassment.”

Abscondence of the appellant when judged in the backdrop of the fact and circumstance of the case cannot by any stretch of imagination be treated to be conclusive evidence with regard to his guilt.

The Court was of the opinion that prosecution had failed to prove its case beyond reasonable doubt and the appellant was entitled to an order of acquittal. Appeal was allowed and conviction and sentence of the appellant was set aside.[Md. Firoz Ala v. State of West Bengal, C.R.A. 176 of 2019, decided on 18-05-2022]


For the Appellant : Mr Kallol Kumar Basu, Md. Jannat Ul Firdous, Ms Tithi Majumder

For the State : Mr Swapan Banerjee, Ms Purnima Ghosh


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and Milind N. Jadhav, JJ. allowed an appeal against conviction of the Appellant by the Trial Court. The appellant was convicted of the offence punishable under Section 302 of the Penal Code, 1860, (“IPC”) read with Section 34 IPC. He was sentenced to suffer life imprisonment and to pay a fine of Rs. 15,000.

Background:

The case of the Prosecution was that P.W. 2 received a phone call from a lady called Smt. Chitrangi Chandrakant Shirpurkar a resident of Ranvali Village informing that an unknown person had killed Savitri Sagar Pawar (deceased) by strangulation and her dead body was lying in the jungle area. The offence was registered initially against unknown persons and the body was sent for post-mortem. According to the Prosecution’s case, the accused sought sexual favours from the deceased which she refused. Hence, the Appellant strangulated the deceased with the towel while the Accused  2 held her legs.

Advocate for the appellant submitted that the investigation by the police authorities to unearth the evidence pertaining to the incident was improper and inadequate and that the impugned judgment and order was not only based on faulty investigation conducted by the police authorities but has been passed without appreciating the facts and circumstantial evidence on record, and has been passed based on mere conjectures and surmises.

Findings and Conclusion:

The Court was of the view that the Prosecution had examined six witnesses. The defence had not examined any witness thus the Court outlined the evidence given by each of the prosecution witnesses as the Trial Court judgment was based entirely on the evidence of these witnesses so as to indict and convict the Appellant.

The Court reiterated the observations of Supreme Court in Rama v. State of Rajasthan, (2002) 4 SCC 571 which read,

“4. … It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law.”

The Court based on the above principle weighed the probative value and sufficiency of the evidence on record. The Court was resultantly of the view that there were serious shortcomings in the Prosecution’s case to prove that the Appellant and the Accused No. 2 killed the deceased. The child witness Laxman Pawar (P.W. 3), who is said to be the sole eyewitness to the incident and upon whose evidence the Prosecution relies highly, is vague, fraught with inconsistencies, has been contradicted by statements of other witnesses, and lacks adequate corroboration. Furthermore, the Inquest Photographs of the deceased throw open a lot of questions in relation to the manner in which the investigation was conducted by the Investigating Officer. As observed by us, the Investigating Officer has not recorded the statements and/or brought forth the relevant parties as prosecution witnesses. Such investigation smacks of complete incompetence and therefore deserves to be reprimanded with strictures.

The Court was not convinced that the evidence on record was sufficient to prove the guilt of the Appellant beyond reasonable doubt under the provisions of Section 302 IPC read with Section 34 IPC as concluded by the Trial Court thus it set aside the impugned judgment and order, reversing the sentence of the Trial Court convicting the Appellant of the offence under Section 302 IPC read with Section 34 IPC.[Ganesh Bhagya Mandavkar v. State of Maharashtra, 2022 SCC OnLine Bom 185, decided on 27-01-2022]


Suchita Shukla, Editorial Assistant has reported this brief.


Mr Aashish Satpute, Advocate for the Appellant (Appointed).

Mr S.S. Hulke, APP for the Respondent – State.

Case BriefsHigh Courts

Sikkim High Court: Meenakshi Madan Rai J., while acquitting the accused charged under section 302, 392 and 427 of IPC held that “Despite there being strong suspicion against the appellant with regard to him having a hand in the death of the appellant, suspicion however strong cannot replace certainty. Moral conviction cannot be resorted to in a criminal case as the golden rule is proof of case beyond a reasonable doubt.”

The appellant in the present case was charged of murdering a man in a vicinity of half kilometre from his home. The prosecution case dwells upon the “Last seen together theory” by testimony of a police officer whose evidence by itself is debatable as he was himself travelling in the direction opposite to that allegedly taken by the victim and the appellant. Moreover, the motive was not able to be established by appellant’s strong financial condition and no personal connection. The appellant’s counsel relied upon the case of Tarseem Kumar v. The Delhi Administration, AIR 1994 SC 2585 and State of Rajasthan v. Hakam Singh, (2011) 15 SCC 171 where the court acquitted the accused in absence of clear conclusive evidences to establish chain of events with specific motive, intention and action. In response to the appellant’s contentions, the public prosecutor put forth that motive was for the purpose of supplying a link in the chain of circumstantial evidence, but its absence cannot be a ground to reject the Prosecution case as held by court in the case of Paramjeet Singh v. State of Uttarakhand, (2010) 10 SCC 439.

The Court while rejecting Prosecutor’s argument stated that “In cases relying upon circumstantial evidence, the circumstances must be so convincing that no other conclusion can be arrived at than the guilt of the accused which must adequate to convict the accused. The Court set aside the judgment of trial court after examining the facts with evidences which did not cleared the reasonable doubt by relying upon the judgments of Supreme Court in the cases of State of Rajasthan v. Naresh, (2009) 9 SCC 368 and State of Haryana v. Ram Singh, (2002) 2 SCC 426.

Consequently, the conviction and sentence imposed on the appellant vide the impugned Judgment and Order on Sentence of the Trial Court were set aside and appellant was ordered to be released from custody along with reimbursement of fine paid by him, if any.[Subhash Thapa v. State of Sikkim, 2021 SCC OnLine Sikk 193, decided on 14-12-2021].


Suchita Shukla, Editorial Assistant has reported this brief.


Appearances by-

Mr Tashi Rapten Barfungpa, Advocate (Legal Aid Counsel) for the appellant.

Dr. Doma T. Bhutia, Public Prosecutor with Mr S. K. Chettri, Additional Public Prosecutor for the respondent.

Case BriefsHigh Courts

Bombay High Court:  Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., addressed a case of ‘Honour Killing’ by a brother of his own real sister and upheld the sentence of the death penalty.

Appellant Accused’s sister who was married had a love affair with another person prior to her marriage.

In 2017, she had left her matrimonial home without informing anyone and later her husband lodged a missing report. Since the accused-appellant was aware of the love affair he had a suspicion about the whereabouts of his sister.

Pooja could not forget her love. Consequently, she had not only left her matrimonial home without informing anyone, however, she had called deceased Govind on his mobile. Against the advice of the brother-in-law PW 5 Shankar Gade, deceased Govind had given his address to deceased Pooja.

Deceased Pooja went to village Kharbala at the house of PW 5 Shankar Gade and joined the company of the deceased Govind. Meanwhile, appellant-accused Digambar was searching for deceased Pooja and Govind. He was suspecting that both of them are together.

Appellant-accused reached the village Kharbala at the house of PW-5 and made a statement before all of them including deceased Pooja and deceased Govind that he will perform their marriage, though PW5 had told appellant-accused Digambar that marriage was not possible because Pooja was already married. Digambar, however, told PW 5 that deceased Govind was his childhood friend and even deceased Pooja made a statement that she had faith in her brother accused that he would perform her marriage with the deceased.

In view of the above said, appellant-accused Digambar, appellant-accused Mohan, deceased Pooja and deceased Govind left that place on one motorcycle being driven by appellant-accused Mohan.

Analysis, Law and Decision

Territorial Jurisdiction Issue

High Court agreed with the observations recorded by the trial court that the inspection notes, the defence evidence and the spot panchanama, if considered, then the spot where the dead body of deceased Pooja was lying comes under the jurisdiction of Telangana State. However, the spot where the actual incident of murder was committed was situated in the river towards southern side of Mahagaon-Palaj river confluence (sangam) which comes under the jurisdiction of Maharashtra State.

Circumstantial Evidence

Bench opined that the entire case rested upon circumstantial evidence and there was no direct evidence in this case.

The prosecution established a link as to how even after marriage, deceased Pooja could not forget her love with deceased Govind and in consequence thereof, within one month and twelve days of her marriage with Jethiba Varshewar, she left her matrimonial home and went to the house of PW 5 to meet deceased Govind. Deceased Pooja left her matrimonial home with a determination to join the company of the deceased Govind.

Prosecution witness 5 and 6 revealed that the appellants accused had been to village Kharbala in exercise of the conspiracy hatched by them to eliminate Pooja and Govind.

Court noted that the manner in which the throats of both the deceased persons were slit, also indicated and gave a message that if the honour of the family is lowered down, the guilty thereof, are liable to be punished.

Hence, prosecution established the motive.

With regard to blood on weapon sickle, prosecution proved another link of circumstantial evidence that the blood on the clothes of appellant-accused Digambar and on the weapon was blood group “A”. There was no explanation from the appellant-accused about the same.

In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction.

In the present matter, Bench stated that the last seen theory was acceptable as the time gap between the point of time when the appellants-accused and both the deceased were last seen alive and both the deceased found dead is so small that the possibility of any other person than the accused being the author of the crime becomes impossible.

It was noted that both the appellants accused took deceased Pooja with them by giving her false assurance of her marriage with the deceased Govind and also took deceased Govind with them. Both the appellants-accused along with deceased Pooja and Govind left the house of PW 5 Shankar situated at village Kharbala, taluka Mudhol on one motorcycle being driven by appellant-accused no.2 Mohan leaving no chance for both the deceased persons to find out any other way of escape in case emergency so arises.

High Court added that, there was positive evidence about homicidal death, motive, so also the connecting evidence in the form of blood group of deceased appearing on the weapon and also on the cloths of the appellant-accused Digambar and thus, the circumstance of last seen together and the absence of satisfactory explanation on the part of the appellant-accused completed the chain of circumstantial evidence. 

There was no possibility of any other person meeting or approaching the deceased at the place of incident or before commission of crime in the intervening period.

 FIR given by accused

It is well settled that where the accused himself gives the first information report, the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act.

Trial Court rightly observed that the said circumstance of confessional FIR was considered to the extent of the conduct of the appellant-accused Digambar under Section 8 of the Evidence Act.

High Court opined that there was sufficient positive evidence of homicidal death. The prosecution had established the chain of circumstantial evidence along with the motive on part of the appellant to commit murder.

Both the appellants failed to give a satisfactory explanation about the death of both the deceased persons when they were seen alive lastly in their company while leaving village Kharbala. Therefore, the death sentence of the accused person was confirmed for offence punishable under Sections 302, 201 read with 34 of Penal Code 1860 and Section 120-B IPC.

Capital Punishment and Mitigating Circumstances

Bench noted the fact that the incident in the present matter did not occur on the spur of the moment or a crime of passion, but craftily planned and meticulously executed.

The present crime is so grave as to shock the conscience of the society and would amount to the rarest of the rare.

 In the Supreme Court decision of Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253, it was held that,

‘it is rarest of rare case and fit for imposition of death sentence. There are no mitigating circumstances. It is an act of taking advantage of absolute innocence. It is not only betrayal of individual trust but also betrayal of social trust. The act is an anathema to social balance. The act of the appellant shocks judicial conscience, conscience of the society and has a menacing effect on the society. His conduct and criminal antecedents reveal that he is and will be a menace to the society and cannot be reformed. Thus, there are no mitigating circumstances’.

In Bhagwan Dass v. State (NCT) of Delhi, (2011) 6 SCC 396, Supreme Court considered as to whether the death punishment can be awarded when the prosecution case rests on circumstantial evidence and particularly dealt with the issue of honour killing.

Court declined to accept the submission that the offence had been committed under the influence of extreme mental and emotional disturbance.

“We are shocked to see the manner in which deceased Pooja and deceased Govind were subjected to death.”

Elaborating its observation further, Bench stated that,

It was done not only with the sole intention to protect the honour of the family, and it was done by hatching conspiracy to punish both of them. The manner in which the throats were slit indicate the same. It was done with an intention to punish them so also to make it as a lesson for those who could dare to disobey the family.

The trial Judge had observed that the face of the accused was expressionless when the Court declared him guilty and there was no repentance at all.

Therefore, in view of the above, Court declined to consider the young age of the appellant-accused 1 and the possibility of his reformation.

High Court while reaching the conclusion expressed that the appellant accused could have cut off the social relations with Pooja and Govind, instead they opted to commit cold-blooded murder in a pre-planned and calculated manner.

In view of the above stated, Bench was not inclined to convert the death punishment of appellant-accused into life imprisonment. [State of Maharashtra v. Digambar, 2021 SCC OnLine Bom 5485, decided on 13-12-2021]

Cases ReportedSupreme Court Cases

In Sharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116, the bench of S. Murtaza Fazal Ali, A. Varadarajan and Sabyasachi Mukherjee, JJ laid down the following five golden principles i.e. the panchsheel of the proof of a case based on circumstantial evidence:

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved”. It is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

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Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that when the chain of circumstantial evidence is not complete, falsity of the defence is no ground to convict the accused.

Background 

The ruling came in a case where the appellant was convicted under Sections 302 and 201 IPC for the death of his wife. The prosecution case was that on 18th November 2011, it was reported that the appellant’s wife died due to burn injuries. However, according to the post-mortem report, the cause of death was ‘asphyxia due to pressure around neck by hand and blunt substance’.

The appellant-accused’s case was that none of the witnesses except the official witnesses have supported the prosecution case and that the conviction of the appellant is based solely on the cause of death mentioned in the post-mortem report and that no other material has been relied upon by the Trial Court as well as High Court.

Submissions by the appellant’s counsel:

  • though post-mortem report was available on 18th November 2011, First Information Report was registered belatedly on 25th August 2012.
  • that when the incident constituting the alleged offence occurred, there were other members of the family of the appellant-accused present in the house.
  • the prosecution witnesses have deposed that the appellant and the deceased were leading a normal matrimonial life.
  • the mother of the deceased, has not supported prosecution. She stated in the deposition that the incident of fire took place when the deceased was boiling milk for her child. He pointed out that even PW No.5-a, Shri Mahesh Sah who gave a report of unnatural death on 18th November 2011 did not support the prosecution.

Submitting that a complete chain of events establishing the guilt of the appellant-accused has not been established, the counsel urged that the conviction of the appellant cannot be sustained and deserves to be set aside.

Submissions by State’s counsel:

  • the post-mortem report categorically stated that the cause of death was ‘asphyxia due to pressure around neck by hand and blunt substance’.
  • the burn injuries on the person of the deceased were not ante-mortem.
  • the appellant and the deceased were staying together under the same roof and therefore, Section 106 of the Evidence Act, 1872 will apply.
  • the burden was on the appellant-accused to explain how the death has occurred.

Hence, a chain of circumstances was established by the prosecution against the accused which supports only one hypothesis of the guilt of the appellant.

It was submitted that the failure of the appellant to discharge the burden on him under Section 106 of the Evidence Act is very crucial as the case is based on circumstantial evidence.

Analysis

The Court took note of the elaborate law laid down in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116. Here are the relevant excerpts from the judgment:

Five golden principles (Panchsheel) which govern a case based only on circumstantial evidence

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved”. It is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

When can a false explanation or a false defence be used as an additional link?

Before a false explanation can be used as additional link, the following essential conditions must be satisfied:

(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved,

(2) the said circumstance points to the guilt of the accused with reasonable definiteness, and

(3) the circumstance is in proximity to the time and situation.

If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. However,

“… falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.”

Applicability of Section 106 of the Evidence Act

Under Section 101 of the Evidence Act, whoever desires any Court to give a judgment as to a liability dependent on the existence of facts, he must prove that those facts exist. Therefore, the burden is always on the prosecution to bring home the guilt of the accused beyond a reasonable doubt. Thus, Section 106 constitutes an exception to Section 101.

Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference.

“When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.”

Ruling on facts

The Court noticed that neither the prosecution witnesses have deposed to that effect nor any other material has been placed on record to show that the relationship between the appellant and the deceased was strained in any manner. Moreover, the appellant was not the only person residing in the house where the incident took place and it is brought on record that the parents of the appellant were also present on the date of the incident in the house. The fact that other members of the family of the appellant were present showed that there could be another hypothesis which cannot be altogether excluded.

“Therefore, it can be said that the facts established do not rule out the existence of any other hypothesis. The facts established cannot be said to be consistent only with one hypothesis of the guilt of the appellant.”

Coming to the post-mortem report, the Court held that

“… only on the basis of post-mortem report, the appellant could not have been convicted of the offence punishable under Section 302 of IPC and consequently for the offence punishable under Section 201 of IPC.”

The Court, hence, acquitted the appellant from all the charges.

[Nagendra Sah v. State of Bihar, 2021 SCC OnLine SC 717, decided on 14.09.2021]


*Judgment by: Justice Abhay S. Oka

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Panda and S. K. Panigrahi, JJ. set aside the impugned conviction order and allowed the appeal.

The facts of the case are such that one Rama Dharua’s (informant) niece Ghulikhai @ Nidra Majhi was missing and on searching the village and inquiring he failed to trace the whereabouts of their niece. The informant then reported the same to the police and an FIR was registered. On one night his son-in-law one Dullabha Majhi confided him that one Dama Pradhani (appellant) of his village had confessed before him that he had committed the murder of the deceased and concealed the dead body. During the course of investigation, the Investigating Officer proceeded to the village and took the appellant into his custody who allegedly confessed to have committed the crime by strangulating the deceased and having concealed the dead body in Gadiajore Nala. Upon arrival at the Gadiajore Nala, the body was immediately recovered. Inquest was conducted. The body of the deceased along with a lungi that was found tied around her neck was sent for post mortem examination. The appellant was also sent for medical examination where a sample of his semen was seized. The appellant was then arrested and forwarded to the court. Based on various witnesses presented before Trial Court the appellant was convicted for commission of offences punishable under Sections 302/201 of Penal Code, 1860 i.e. IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs 2, 000/-and in default further to undergo R.I. for a period of six months under Section 302 of IPC and to undergo R.I. for two years and to pay a fine of Rs 1, 000. Upon further default, to undergo R.I. for three months under Section 201 of the IPC Aggrieved by the said order, present appeal was filed.

Counsel for the appellants Mr B.S. Das, D. Marandi, L.C. Behera and S. Sahoo submitted that there is no eye witness to the occurrence and the case of prosecution is solely based on circumstantial evidence. It was further submitted that although the extra-judicial confession has led to the discovery of the dead body, however, the prosecution has failed to adduce cogent and trustworthy evidence to prove the circumstances beyond a reasonable doubt.

Counsel for the respondents Mr S. K. Zafarulla submitted that the report of the Medical Officer reveals that the deceased suffered homicidal death due to strangulation by means of lungi. It was further submitted that the witnesses and evidence presented clearly states culpability of the accused.

The Court summarized four circumstances indicating the culpability of the appellant, namely

  1. Extra judicial confession made by the accused
  2. Recovery of dead body of deceased
  3. Evidence and statements of various witnesses
  4. Motive

The Court relied on judgment Sahadevan v. State of Tamil Nadu, (2012) 6 SCC 403 wherein it was held that

“14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.”

 The Court further relied on judgment Jaffar Hussain Dastagir v. State of Maharashtra (1969) 2 SCC 872 and observed that even if it can be accepted that the statement of the appellant led to the discovery of the body of the deceased and hence might be admissible, it is important to note that only that part of the statement which led to the discovery of the body of the deceased can be admitted. Every other information presented in the statement which are inculpatory and confessional including the confession of allegedly committing the offence, the alleged usage of the lungi to commit said offence, the existence of the love affair have to be completely barred and cannot be relied upon under any circumstances.

The Court observed that In the instant case there are no eye-witness to the occurrence and prosecution case solely rests on the circumstantial evidence. The Court relied on judgment Ramreddy Rajesh Khanna Reddy v. State of Andhra Pradesh (2006) 10 SCC 172 wherein it was held that:

“26. It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence.”

The Court held “in the absence of eye-witnesses and the weak chain of circumstantial evidence, the order of conviction and sentence impugned herein are liable to be set aside.”

In view of the above, appeal was allowed.[Dama Pradhani v. State of Orissa, 2021 SCC OnLine Ori 309, decided on 12-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Prasanna B. Varale and S.M. Modak, JJ., held that in a matter of circumstantial evidence, the law doesn’t require a particular number of circumstances to establish the chain, it only depends on nature.

The issue involved in the present appeal was:

Whether the link between the incident of murder and the accused is established on the basis of proved circumstances?

Present matter was based on circumstantial evidence.

It was expressed that, Law does not require a particular number of circumstance so as to establish the chain. It altogether depends upon the nature of the transaction. 

In the present matter, there were a few circumstances relied upon by the prosecution and the Additional Sessions Judge believed those circumstances and drew an inference about the guilt of the accused of committing murder of his own wife Nirmala. Accused was convicted under Section 302 of Penal Code, 1860 and the said judgment has been challenged in the present appeal.

Accused and his wife were labourers. On the day of the incident both the accused and deceased went from duty a little early due to stomach pain of accused and then slept. On next day when the first informant went to wake them up, he saw Nirmala’ dead body. Accordingly, he lodged the complaint.

Circumstances on which the prosecution relied upon were as follows:

  1. Last seen theory.
  2.  Motive
  3. Noticing soaked blood stains on the clothes of the accused.
  4. Absconding himself from the spot of the incident even though his wife is murdered.

Supreme Court has already laid down golden principles while appreciating circumstantial evidence. They still hold good. So the following are the principles:-

  1. a) The circumstance relied upon must be fully established.
  2. b) They must be consistent with the hypothesis of guilt of the accused.
  3. c) They should be conclusive in nature. Only inference about guilt of the accused is to be inferred.
  4. d) There should be complete chain of evidence so as not to lead any doubt about involvement of the accused.

Trial Court blamed the accused for not giving explanation. In Court’s opinion, Trial Court committed fault on two aspects first trial court forgot the difference between suspicion and proof.

Secondly, trial court forgot to put to the accused circumstance of ‘last seen together’ as evidenced by PW-2 first informant.

In view of the above reasons, Bench decided to set aside the conviction and laid down the following reasons:

ON THE POINT OF LAST SEEN TOGETHER

Last seen circumstance has to be proved just like any other circumstance. The only difference is once the prosecution will prove that both the deceased and accused were found last together then certainly it is for the accused to explain about whereabouts or what has happened about his companion. In this exercise the time of last seen and time of death also plays important.

For the above-stated, Supreme Court’s decision in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 was referred.

SPOT OF INCIDENT

Bench stated that it was very much clear that the spot was not situated within four walls of the house but an open space. There was reason to believe that the open space was not surrounded by walls but a place accessible. In view of the said, Court stated that it had to see whether there was a burden on accused to explain how deceased was found there in a dead condition.

Section 313 of the Code of Criminal Procedure empowers the Court to put questions in two eventualities.

One is optional and it may be at any stage of proceeding. Whereas 2nd is mandatory, and it is after prosecution witnesses were examined. Under the said Section, protection was also given to accused from possible punishment which may occur if he has refused to answer or given a false answer.

Whether this Court can remand the matter back to the trial Court for the purpose of putting that circumstance to the accused?

A similar situation arose before the Supreme Court in Nar Singh v. State of Haryana, (2015) 1 SCC 496.

There is no straight-jacket formula for deciding which course of action could be adopted, therefore it remains a question of fact.

In the present case, Bench was not inclined either to remit the matter or to put the questions to the accused.

While deciding the matter on merits, Bench stated that it has almost been 5 years since the accused was behind the bar. Further, even if the circumstance of the last seen together was considered, Court did not think that other circumstances were sufficient to prove the guilt of the accused. Court opined that prejudice was caused to the accused.

It was noted that the accused was denied the opportunity to give an explanation resulting in causing prejudice to him.

MOTIVE

“Suspecting the character of the deceased” was the motive suggested by the prosecution.

Motive is the purpose/reason for which offence is committed. Motive crops up in the mind of the culprit. We can understand the motive, only when it is manifested by some conduct. If the accused scolds, become angry and even beats the deceased it is manifestation.

A trifling act may make another person angry and a blunder may not make a person angry. So, it is difficult to opine which objectionable acts may compel another to take law into his own hand

No doubt man always wants his wife to be loyal to him and if wife has shifted loyalty towards another person, her husband never likes. It is true for wife also.

PW-4-Muktabai mother of the deceased was not eyewitness to this beating by the accused. Except her, there was no other witness. The said statement was not sufficient to believe about the reason for scolding and the group head’s opinion about cordial relations was also important as he resided in the immediate vicinity, hence Trial Court wrongly inferred about motive.

ARREST OF ACCUSED 

When the accused was arrested, bloodstains were noticed on his clothes.

Police Officers are not a layman. They are the officers having the responsibility to carry out the investigation as per the police manual and as per the provisions of the Criminal Procedure Code. They need to substantiate their stand on the basis of documents which are created simultaneously.

In the present case, the witness police did not make any correspondence on the arrest of the accused, neither made any Panchama. Except the bare words of the two witnesses, there is nothing in writing.

High Court found no explanation coming forward from the prosecution for not creating and not producing the single document to show the entire exercise.

Trial Court’s decision about the arrest of the accused was also found to be flawed.

CAUSE OF DEATH 

Bench expressed that merely because there was a huge time gap in between the timing of last seen together and probable timing of death, the evidence of last seen together could not be rejected in all cases.

WEAPON OF OFFENCE

As no one saw the assault Bench stated that it did not know how the accused had used the weapon koyta. Weapon Koyta was found at the spot when spot panchanama was carried out.

Prosecution had sufficiently proved the circumstances of last seen together.

The circumstance of motive was not proved, evidence on the point of arrest and seizure of clothes was not trustworthy. So, Court felt that the chain of circumstances was not established.

Hence, High Court held that there was Grave suspicion on accused that he had committed the murder of his own wife. As everyone knew that suspicion could not take place of proof, therefore, Court was unable to subscribe to the view taken by the trial court.[Sandip Baburao Waidande v. State of Maharashtra, 2021 SCC OnLine Bom 560, decided on 09-04-2021]


Advocates before the Court:

Mr Amit Mane (Legal aid) for the appellant.

Mrs M. M. Deshmukh, learned APP for the Respondent.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and N.J. Jamadar, JJ., while addressing the present matter, expressed that:

Where the prosecution succeeds in discharging its primary burden and brings evidence on record which indicates that the facts, thereby proved, rest within the special knowledge of the accused, Section 106 of the Evidence Act comes into play.

Suspicion, however strong, cannot take the place of proof.

Factual Matrix

Accused-Appellant has challenged the decision of the Additional Sessions Judge, wherein he was convicted for the offence punishable under Section 302 of the Penal Code, 1860 for having committed the murder of his wife Sunita (the deceased).

The accused harassed and ill-treated the deceased on suspecting fidelity of the deceased. The deceased and accused shifted to Beghar Vasti wherein they erected a temporary shed adjacent to the house of the first informant. Later the accused and deceased desired to erect a shed with a thatched roof.

To erect the shed with a thatched roof, both the accused and deceased went to the field in order to collect a wooden log. The first informant also went to the fieLd to graze the goats, wherein he saw that the deceased was lying near a mango tree and her clothes were stained with blood. However, first informant did not find the accused in the vicinity of the said spot. Thus, he suspected that the accused to have done so, after which he lodged a report.

 During the investigation, it was found that the deceased was carrying six months pregnancy and the said occurrence resulted in the death of quick unborn child as well. The accused came to be arrested.

Additional Sessions Judge framed charge against the accused of the offences punishable under Sections 302 and 316 of the IPC.

After the trial, offence for Section 316 IPC was not established against the accused, though he came to be convicted under Section 302 IPC.

Aggrieved with the above, present appeal was preferred.

Analysis and Decision

Bench noted that the fact that the accused did not offer any explanation regarding the circumstances in which he parted the company with the deceased and how the deceased sustained those fatal injuries weighed with the Additional Sessions, Judge.

In the context of the marital relationship between the deceased and the accused and the indisputable fact that they were residing at Khatgun along with the first informant, the “last seen theory” constitutes the linchpin of the prosecution case. 

Court added that the fact that the deceased was found beneath the mango tree in the said field, within a couple of hours of the accused and the deceased having left the house, can also be said to have been proved beyond the shadow of doubt.

Further, since there has been ample evidence to indicate that the first informant found the deceased lying in a motionless state with fatal injuries and when she raised alarm, the prosecution witnesses, Dharam Pawar (PW-6) and Sushila Pawar (PW-9) went to the scene of occurrence and found the deceased lying beneath the mango tree.

Adding to the above, Court also stated that in any event, the interval of time between the accused and the deceased leaving together their home and the deceased having been found dead in the field ‘Kolki’, did not exceed three hours.

It is trite law that the ‘last seen’ theory comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead, is so small that the possibility of any person other than the accused being the perpetrator of the offence, is inconceivable.

In view of the above law and facts of the case, Court held that the prosecution succeeded in establishing that the accused and the deceased were “last seen together”.

Nature of the death

The nature of the injuries found on the person of the deceased and the attendant circumstances are of determinative significance. Bench stated that the injuries found on the person of the deceased were on accessible and elective parts i.e. wrist and neck.

It is true that the accused did not endeavour to offer an explanation as regards the circumstances in which the deceased suffered the aforesaid injuries, when confronted with the incriminating material.

The question that triggers in the above circumstances is whether the failure to offer the explanation is sufficient to fasten the liability on the accused?

In the circumstances of the present case, in the absence of any positive evidence, motive to eliminate the deceased cannot be attributed to the accused on the premise that, before the accused and the deceased shifted to Khatgaun, their marital life was afflicted with discord.

Accused having changed the clothes with a view to conceal the fact that the clothes which he wore at the time of occurrence were stained with blood, is not of conclusive tendency and incriminating nature. Admittedly, the accused was found in an injured condition. Wounds were found on both the wrists and neck of the accused.

Adding to the above, Court expressed that the accused had visible injuries, on his person, when he was apprehended. The presence of bloodstains on the clothes of the accused, which he wore on the day of occurrence, therefore, cannot be construed as an incriminating circumstance.

Though prosecution made an endeavour to draw home the point that the accused had self-inflicted the above-stated injuries overcome by the feeling of guilt. Bench found it hazardous to draw an inference that the said attempt on the part of the accused to cause injuries to himself was due to the fact that the accused was overcome by the guilt, as held by the Additional Sessions Judge.

What emerges from the above discussion?

From all the above discussion, Court observed that there has been clear evidence of ‘last seen’ and the death of the deceased within a couple of hours of the deceased and the accused having been last seen together.

The wounds found on the person of the deceased especially the situs, elective parts, and nature were suggestive of suicidal infliction.

As the fundamental fact of the deceased having met a homicidal death itself is in the corridor of uncertainty.

In Court’s opinion, the circumstance of ‘last seen’, and the failure of the accused to offer a plausible explanation, on their own, were not sufficient to sustain the guilt of the accused beyond reasonable doubt.

Section 106 of the Evidence Act does not relieve the prosecution of its general or  primary burden of establishing the guilt of the accused beyond reasonable doubt.

 Supreme Court’s decision in Sawal Das v. State of Bihar, (1974) 4 SCC 193 was also referred for the above purpose.

Propositions that emerged from the above discussion:

  • If an accused is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased.
  • The failure of the accused to offer a reasonable explanation in discharge of the said burden provides an additional link in the chain of circumstances proved against the accused.

In the present matter, homicidal nature of the death was not established and the prosecution case rested upon the circumstance of “last seen” to a great extent.

With regard to the legal position in respect to sustaining the guilt on the only circumstances of “last seen”, Court referred to the decision of Supreme Court in Dharam Deo v. State of U.P., (2007) 3 SCC 755.

Hence, Bench held that circumstance of ‘last seen’, in the totality of circumstances, cannot sustain the burden of establishing the guilt of the accused beyond a reasonable doubt, especially when the fact of homicidal death is in the realm of uncertainty.

High Court concluded its decision by referring to the decision in Navaneethakrishnan v. State, (2018) 16 SCC 161, wherein the legal position in the context of sustaining conviction on the basis of circumstantial evidence was expounded.

Conviction under Section 302 IPC could not sustained in view of the above discussion. [Krishna Mahadev Chavan v. State of  Maharashtra, 2021 SCC OnLine Bom 191, decided on 12-02-2021]


Advocates who represented the parties:

Aashish Satpute, Advocate appointed by Court for appellant.

S.R. Agarkar, APP for respondent-State.

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Shree Chandrashekhar J., upheld the impugned judgment and dismissed the appeal being devoid of merits.

The case at hand involves murder of a woman Bhondi Khariain by her husband who was found dead at her own residence and her husband found to be absconding. An informant who is a co villager John Kullu informed the police about the same pursuant to which an FIR was registered under Section 300 of Penal Code, 1860 i.e. IPC. An investigation followed by trial was conducted before Additional District and Session, Judge, Fast Track Court who convicted and sentenced him to rigorous imprisonment for life and fine of Rs 5000 under Section 302 IPC for committing murder of his wife.

The present case solely is based on circumstantial evidence due to lack of any eye witness available. The Court relied on a judgment titled Sharad Birdhichand Sarda v.  State of Maharashtra, (1984) 4 SCC 116 and observed that in a case based on the circumstantial evidence, the prosecution must establish the incriminating circumstances by leading cogent and consistent evidence and the circumstances so proved against an accused must lead to irresistible conclusion that it was the accused and the accused alone who has committed the crime and no other hypothesis consistent with the innocence can be inferred.

Circumstantial Evidence 1: Dead body of Bhondi Khariain was found in the house of the appellant

Due to few witnesses turning hostile later during cross-examination and denied making any statement before police regarding accepting that they saw the husband murdering his wife by strangulation through a rope or even seeing the dead body etc, the court relied on a judgment titled Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417 and observed that the evidence of a hostile witness is not liable to be rejected altogether rather it can be used by the prosecution to corroborate its case against the accused. The Court thus believed through this that the deceased died in her matrimonial home.

Circumstantial Evidence 2:  The Medical Evidence

The post mortem report clearly states that the eyes of the deceased were partially open; mouth open and tongue protruded outside the mouth, fracture of thyroid cartilage and subcutaneous tissues under the ligature mark were ecchymosed with bruising of neck muscles, colour bluish. The doctor based on above finding stated that this is a case of accidental death or suicide. The court relied on judgment Vadugu Chanti Babu v. State of A.P. (2002) 6 SCC 547 and observed that a stray statement of the doctor in his cross-examination is not a conclusive opinion but it is only a possibility.

 Circumstantial Evidence 3: The appellant was found absconding

During examination of the accused under Section 313 of the Code of Criminal Procedure, the appellant was put this circumstance that he has killed his wife by throttling through a rope in the night of 12.03.2006, however, except stating that it is false and he has not committed the crime, he has not offered any explanation how his wife has died. The Court relied on a judgment titled State of Maharashtra v. Suresh  (2000) 1 SCC 471 and observed that offering no explanation or evasive reply to an incriminating circumstance cannot form the basis for conviction of an accused, but a husband must say something how his wife has died in his house. In a situation like this, the appellant’s offering no explanation on death of his wife would by itself become an incriminating circumstance which would provide a link in the chain of the circumstances.

On Law of Circumstantial Evidence

The Court relied on judgment titled Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 and observed:

12. ….…..The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established: that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused: that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.”

 The Court after hearing facts and perusing the circumstantial evidences in detail held the accused guilty on grounds that the prosecution has led cogent and consistent evidence on the homicidal death of Bhondi Khariain even though the motive for the crime has not been established.

In view of the above, the impugned judgment upheld and the appeal dismissed.[Kandra Kharia v. State of Jharkhand, 2019 SCC OnLine Jhar 2730, decided on 26-11-2019]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Bombay High Court: A Division Bench of R.D. Dhanuka and Surendra P. Tavade, JJ., upheld the trial court’s decision based on circumstantial evidence of a woman murdering her newly born female child.

Appellant has filed the present appeal against the judgment passed by the Additional Sessions Judge by which she was convicted for the offence punishable under Section 302 of Penal Code, 1860. Appellant has been acquitted for Section 317 IPC — Exposure and abandonment of child under twelve yearsby parent or person having care of it.

Facts of the Case

Informant while going to attend his duty saw a newly born female child lying beside the road, alive and lodged a complaint regarding this at the Uran police station.

PW11 in the meanwhile reached the spot and took the child to his house wherein his mother PW-6 bathed the child and later reported the matter to the police.

Later the police made enquiry with Hirabai who informed that she saw the appellant as pregnant, therefore police called the appellant.

Police took the child, appellant and Hirabai to the hospital wherein the child and appellant were allotted Cot No. 4. After a few hours, nurse found out that the child was movementless and on examining the child it was found that the child was dead.

In the postmortem report, it was found that the child died due to strangulation. Hence, crime no. 89 of 1993 was registered against the appellant.

Appellant was put under arrest and charge sheet was filed under Sections 317 and 302 IPC.

Trial Court on going through the evidence of record acquitted the appellant under Section 317 IPC but convicted her for the offence punishable under Section 302 IPC.

Circumstantial Evidence

When the case is based on circumstantial evidence, the motive plays a vital role. Generally, motive remains in the mind of the culprit, so it is difficult to prove it. The motive can be proved by circumstances of the case and the acts of the culprit.

In view of the circumstances of the present matter, it is clear that the custody of the child was with the appellant at the time of the death of the child.

The crucial circumstance against the appellant/accused is that she was having custody of the child in the hospital and ultimately child found dead on Cot No.4; so the effect of an acquittal of the appellant/accused under Section 317 of the Indian Penal Code would not come in the way of the prosecution to hold her guilty under Section 302 of the IPC.

It would have been a shame for the appellant/accused and the delivery of child would have affected her character since she was a widow for 8 years. Hence, the appellant/accused had a motive to done away with the life of the child

Homicidal Death

Prosecution has proved all the circumstances namely the abandonment of child, the good physical condition of the child prior to the death, the child was in possession of appellant/accused since the child was referred to the Rural Hospital, Uran. The prosecution has proved the homicidal death of the child.

Hence the Court concluded that chain of circumstances against the appellant was also proved beyond the shadow of reasonable doubt.

“There was nobody else except the appellant to commit murder of the said child.”

In view of the above circumstances, the appeal was dismissed. [Kamlabai Tukaram Gharat v. State of Maharashtra, 2020 SCC OnLine Bom 850, decided on 11-08-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Prashant Kumar and Gautam Chourdiya, JJ., while addressing the present criminal reference wherein the deceased/victim was a Five and a half Year deaf and dumb girl who was brutally raped and murdered by the accused, held that,

…considering the depraved and shameful manner in which the offence has been committed, the said mitigating factor would not outweigh the aggravating factors and as such, we are satisfied that present case falls within the ambit of “rarest of rare case”.

Informant –father of the deceased had informed that despite search at various places deceased was not traceable, therefore he expressed his suspicion on some unknown person who would have allured and abducted his daughter. FIR was registered against unknown person for offence under Section 363 Penal Code, 1860.

Kunti Sona (accused 3) informed the police that her younger son informed her that brother Ram Sona had murdered a girl and has kept the dead body in the house. Her son Ram Sona and his friend Keli reached the house and all three concealed the dead body in a muddy Nala besides the railway track and that she could point out the place.

Keli informed the IO that he had seen Ram Sona committing rape and thereafter murdering the deceased/victim, he also saw the deceased bleeding from her private parts.

Accused Ram Sona disclosed to the police that when the deceased was playing he brought her in his house by luring her, when he reached the house, his friend Keli was watching TV and when he was committing rape, his friend tried to restrain him and later on he thrashed her head on the ground due to which she became unconscious.

Further, he adds. That out of fear he gagged her, killed her and concealed the dead body. He also disclosed that the next day his brother Dipak informed that members of the locality were looking for him and he may be thrashed.

Based on the evidence on record, trial judge convicted the accused and sentenced accused Ram Sona to be hanged till death for the offence under Section 376(A) and 302 of IPC, with other sentences for remaining charges.

Appellants Counsel, argued that names of the accused persons were note mentioned in the FIR, therefore they were framed subsequently by the prosecution, as they were not finding the culprits. He further argued that abscondance of accused was neither a circumstance nor there was any evidence of such abscondance. Confession by Kunti Sona and Amrit Singh in their memorandum of statements cannot be admissible against Ram Sona as nothing pursuant to the same was recovered and stands inadmissible in evidence.

Fouzia Mirza, Additional AG – argued that under Section 30 of Evidence Act memorandum of statement of co-accused is admissible in evidence if it is self implicating.

Analysis and Decision of the Court

Bench drew the point of significance that the concentration should be on legality and evidentiary value of the memorandum statements of accused persons and to what extent they can be relied upon to establish one of the important circumstances against the appellant.

Court observed that all the three memorandum statements were proved by the prosecution. Accused Kunti and Amrit did not commit the main offence under Sections 376 and 302 of Penal Code but have only assisted the main accused Ram Sona in concealing the evidence of crime by disposing of the dead body, their disclosure statements were self inculpatory.

Bench referred to the decision of Supreme Court in Sukhvinder Singh v. State of Punjab, (1994) 5 SCC 152, wherein it was argued that the facts already discovered cannot be again discovered.

Balbir Singh v. State of Punjab, AIR 1957 SC 216, Supreme Court held that,

“…so far as the confessional statement of co-accused is concerned, it may be taken into consideration against the appellant if it fulfills the conditions laid down in Section 30 of the Evidence Act.”

Adding to its conclusion, Court also noted that confession of co-accused can be used when there are other corroborative evidence against the co-accused. Stage to consider the confessional statement arrives only after the other evidence is considered and found to be satisfactory.

Self inculpatory confession of accused can be used against the co-accused and there is no general proposition that it can never be used for any purpose.

Thus, the facts disclosed in the memorandum statement of Ram Sona find corroboration from the medical report, which found injuries over private parts of the deceased and over her head as well. It also corroborated the memorandum statement of Amrit Singh, who had stated that he had seen accused Ram Sona committing rape. It further corroborated from the memorandum statements fo accused Kunti Sona and Amrit Singh, who has stated that all the 3 concealed the dead body near muddy Nala besides the railway track.

Memorandum statements of Kunti Sona and Amrit Singh are therefore admissible in evidence against accused Ram Sona.

Bench with regard to absconcion of the accused Ram Sona stated that the same gained importance, as he was the person who was last seen together with the deceased.

“We are convinced that the chain of circumstantial evidence has been duly proved against all the accused including Ram Sona and it is he who brought the deceased to his house, committed rape and thereafter murdered deaf and dumb prosecutrix, aged about 5½ years.”

High Court considered,

 “Whether the death sentence awarded to accused Ram Sona is to be confirmed or the same deserves to be commuted to life imprisonment.”

In Supreme Court’s decision of Bachan Singh v. State of Punjab, (1980) 2 SCC 684, it was held that,

“…normal rule is that offence of murder shall be punished with the sentence of life imprisonment. The Court can depart from that rule and impose sentence of death only when there are special reasons for doing so.”

“If Court finds that the offence is of exceptionally deprave and heinous character and constitutes, on account of its design and manner of its execution, a source of grave danger to the society at large, the Court must impose the death sentence.”

Another case that was relied on by the bench was of Laxman Naik v. State of Orissa, (1994) 3 SCC 381, in this case also the victim was a 7-year-old girl who fell prey to the accused’s lust and the Court held that,

“…The appellant seems to have acted in a beastly manner as after satisfying his lust he thought that the victim might expose him for the commission of the offence of forcible rape on her to the family members and others, the appellant with a view to screen the evidence of his crime also put an end to the life of innocent girl who had seen only seven summers.”

“…appellant had conceived of his plan and brutally executed it and such a calculated, cold-blooded and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of rarest of the rare cases attracting no punishment other than the capital punishment.”

Hence, the High Court in view of the above-cited cases along with few others affirmed the conviction and death sentence imposed upon Ram Sona, Amrit Singh and Kunti Sona. [In ref. Of State of Chhattisgarh v. Ram Sona,  2020 SCC OnLine Chh 9, decided on 31-01-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Surendra P. Tavade and Ranjit More, JJ., while dealing with a case in regard to homicidal death upheld the decision of the trial court which was in challenge before the Bench.

In the present case, appellant preferred the appeal against the Judgment passed by Additional Sessions Judge wherein the appellant was charged for the offence punishable under Section 302 of Penal Code, 1860.

Facts

Informant who was the brother-in-law of the deceased had given his two-wheeler to the deceased on his request as he had to visit the appellant’s factory. Deceased had informed the informant that he would return back within a short period. But on failure of his return, informant inquired the workers of the factory about the deceased’s visit and came to know that the deceased did not visit the factory that evening.

Later on the next day of the said event, the informant received a call from appellant’s father-in-law who further informed him that appellant had killed Zuber (deceased) and had locked the shutter of his factory. On receiving the said information, informant enquired the same with the accused who confessed the same.

Thereafter, informant took the appellant to the Police Station and further appellant took the police to the factory where he had killed Zuber and directed towards his dead body. Appellant was arrested and after the completion of trial was punished under Section 302 IPC.

Trial Court relied on the extra-judicial confessions along with the circumstantial evidence.

Contentions

Advocate Subhash Jha, represented the appellant and submitted that extra-judicial confession is a weak type of evidence. To corroborate the extra-judicial confession no other circumstances were proved. The entire prosecution case was based on circumstantial evidence. Hence he prayed for acquittal for the appellant.

J.P. Yagnik, APP for the Respondent-State, submitted that, Subsequent conduct of the appellant of showing remorse for his acts and all the other facts stated above supported the extra-judicial confession.

For a crime to be proved, it is not necessary that the crime must be seen to have been committed and must in all circumstances to be proved by direct, ocular evidence, by examining before the Court those persons who had seen its commission. Thus offence can be proved by circumstantial evidence also.

Reference to the decision in Sharad Birdhi Chand Sarda v. State of Maharashtra, (1984) 4 SCC 116 was made, wherein while dealing with circumstantial evidence it was held that, onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defense or plea.

Another significant point to be noted in the present case, medical officer categorically opined that death is not due to strangulation, but by throttling; so there is no doubt regarding the cause of death of the deceased. Thus it rightly proved the homicidal death of the deceased.

Decision

High Court on perusal of the facts and circumstances of the case noted that prosecution established the homicidal death of the deceased. Appellant had made voluntary extra-judicial confessions which were corroborated by other circumstances namely taking the police and witnesses to the premise where the incident occurred.

Thus, the prosecution proved the chain of circumstances that lead to the homicidal death of the deceased, said circumstances unerringly pointed out the guilt of the appellant.

Hence trial court had rightly held the appellant guilty and in view of such findings, the High Court dismissed the appeal. [Mohammad Ismail Noormohammad Madana v. State of Maharashtra, 2020 SCC OnLine Bom 238, decided on 12-02-2020]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Bela M. Trivedi and A.C. Rao, JJ., dismissed an appeal filed on being aggrieved by the Judgment and order by the Additional Sessions Judge and Special Judge (POCSO), whereby it had convicted the appellant-accused for the offence under Sections 302, 363, 366, 376AB, 377 and 201 of the Penal Code, 1860 and under Sections 3(a), 4, 5(a), 5(r) and 6 of the Protection of Children from Sexual Offences Act, 2012, and had sentenced him to death penalty for the offence under Sections 302, 376AB of the Penal Code and had convicted him of the offences under the Atrocities Act.

The facts of the case stated as per the prosecution before the Special Court were that the appellant-accused was residing on the ground floor of the house owned by Shyam Narayan Pandey and the complainant along with his family had been residing in the same building on the first floor as a tenant and the appellant on 14-10-2018 between 8-8.30 pm kidnapped his minor daughter aged about 3 years and 6 months (victim) took her to his room committed rape on her and killed her by throttling. Thereafter in order to destroy the evidence put the body of the victim in a gunny bag in his room and locked the room from outside and fled away. After the complainant filed the missing report in the police station the investigation officer conducted an inquiry and since the room of the accused was locked the lock was broken and the body of the victim was found in a decomposed state. After collection of sufficient evidence against the accused the charge-sheet was filed before the Special Court. After appreciating the evidence on record, it convicted and sentenced the accused as per the impugned judgment and order which is challenged in the instant petition.

The counsel for the appellant-accused Radhesh Vyas stated that the whole case of the prosecution was rested on the circumstantial evidence, the confession made by the before medical examiner as well as when in police custody could not be relied upon and read as evidence, the CCTV footages provided did not cover the entire area of the society and couldn’t be termed as reliable piece of evidence, relying upon the cross-examination which submitted that there was a shutter in the room of the accused and possibility that the gunny bag could be placed through that shutter cannot be ruled out. Lastly relying on the Supreme Court judgment of Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and Machhi Singh. v. State of Punjab, (1983) 3 SCC 470 he submitted that the Special Court had committed a gross error in not considering the mitigating circumstances before awarding capital punishment and relying on various other cases he tried to establish that the instant case did not fall in the category of the rarest of the rare case.

The counsel for the respondents Himanshu Patel, stated that even if the case was based on circumstantial evidence the prosecution had proved each and every circumstance without reasonable doubt proving guilt of the accused and wile at the time of the investigation he did not cooperate with it and had fled to his village the next morning of the incident and the investigation officer had found the body of the victim from his room, the postmortem reports clearly described that the victim was raped in a diabolical manner and brutally murdered by strangulation and then her dead body was kept in a gunny bag to decay and decompose. Late the accused was arrested from Bihar in a train going to Delhi. The DNA profile and other scientific investigations also proved that the accused was involved with the crime. The Court, therefore, had no hesitation in holding that trustworthy and credible evidence given by the prosecution had conclusively proved the guilt of the appellant/accused, excluding any possibility of his innocence.

The Court while dismissing the appeal and confirming the decision of the Special Court stated that the abhorrent and atrocious nature of crime committed by the appellant-accused in a diabolical manner, on the defenseless unprotected girl of 3½ years, without any remorse, has left the Court with no option but to consider the case as the “rarest of rare case” for awarding the punishment of death penalty. [Anil Surendrasingh Yadav v. State of Gujarat, 2019 SCC OnLine Guj 2692, decided on 27-12-2019]

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S.K. Mishra and A.K. Mishra, JJ. set aside a lower court’s decision of convicting the appellant based on circumstantial evidence.

The Assistant Sub-Inspector (ASI) found a dead body of a young woman which was severed into four pieces on the railway track. The trail of blood led to the house where the appellant was residing with his wife on rent. Upon investigation of the said rented house, the ASI found the house splattered with blood. He found one plastic mat covered in a pool of blood. The accused was not found in the house, although he was with the deceased the previous night. Considering the circumstances, the ASI lodged an FIR suspecting it to be a case of murder. Out of the 14 witnesses examined on behalf of the prosecution, three of them stated that they had heard the accused assaulting the deceased due to non-fulfilment of demand of dowry. Based on these statements and the circumstantial evidence, the learned Additional Sessions Judge, came to the findings that the accused and the deceased were residing in one house because of the trail mark of blood from the house of the accused to the railway track. Adding to it, doctors too confirmed the case to be of murder as the antemortem injury was inflicted by the sharp cutting weapon. The appellant was convicted and imprisoned for life under Sections 201, 302, and 498-A IPC, Section 4 of the Dowry Prohibition Act. 

The counsel for the appellant, Anima Kumari Dei, submitted that the entire judgment does not reveal that when and on which date the occurrence took place so as to put a nexus between the last seen of the deceased with the accused and the discovery of the dead body of the deceased since the FIR was lodged two days after the occurrence.

The Court held the following:

  • There is a considerable lapse of time between the time the accused and the deceased were last seen together and discovery of the dead body of the deceased, and therefore the last seen theory is not applicable in this case.
  • From the materials available on records, the chain of circumstances is not complete as to leave no reasonable ground for the conclusion consistent with the innocence of the accused.
  • There is also no cogent evidence on records to show that there was any torture for the demand of dowry or causing the disappearance of evidence as no specific of such incident has been stated to by any of the witnesses.

The Court set aside the conviction recorded by the Additional Sessions Judge as it was based on circumstantial evidence available and did not form a complete chain unerringly pointing towards the guilt of the accused.[Gopal Mallik v. State of Orissa, 2019 SCC OnLine Ori 254, decided on 18-07-2019]

Case BriefsForeign Courts

Kenya High Court, Nyahururu: R.P.V. Wendoh, J. passed a judgment directing acquittal of an accused in the absence of sound circumstantial evidence.

A child was found dead in Nyahururu, Kenya. The reason for the death was found to be strangulation leaving a dark swollen mark around the neck of the deceased child. The police was called and the investigating officer noticed that the younger brother of the deceased child also had the same swollen mark on his neck, however, he never bothered to interrogate that child. The deceased used to live with father, brother and father’s second wife as the mother of the deceased had parted from his father and he was under the custody of the father. Police suspected David Wang’ondu Githiru, father of the deceased for the murder but when they tried arresting him, he started to run with an intention of escaping from the scene.

Learned counsel for the prosecution, Mutembei called upon nine witnesses who testified the death of the deceased and the swollen mark present on his neck. One of the witnesses also testified the presence of the same mark on the neck of the younger brother of the deceased. The testimony of the witnesses created a chain of events which somewhat placed accused as the probable murderer.

Learned counsel for the defendant, Kihoro contended before the Court that the circumstantial pieces of evidence brought before the Court were hollow as it did not answer as to who killed the child. He further argued that when the accused reached his home on that evening, the child informed him that he was sick. However, the accused had no money at that time so he started to arrange money. Around 3:00 a.m. the next day, he was taken to the hospital but he had died by that time.

The Court after hearing both the sides observed that the case turns on purely circumstantial evidence. It was opined that for the Court to rule a conviction on such evidence, events leading to the death of deceased must form a chain so closely knit together without any breakage or interruption. But, the present case did not give a very strong circumstantial evidence whose final outcome could be relied upon. The Court thus reiterated the judgment passed in Sawe v. Republic, (2003) KLR 364 in which it was opined that “Suspicion, however strong, cannot provide basis for inferring guilt which must be proved by evidence beyond reasonable doubt.”

Thus, the Court in absence of the proof beyond reasonable doubt acquitted the accused. [Republic v. David Wang’ondu Githuru, 2018 SCC OnLine Ken 1, decided on 24-10-2018]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: The Division Bench of Shree Chandrashekar and Deepak Roshan, JJ. dismissed a petition on the ground that prosecution has miserably failed to establish its case against the appellant.

The present prosecution case was based on the circumstantial evidence where there was no eye-witness to the actual occurrence in which the deceased (Birsu Oraon) was killed. And the Additional Judicial Commissioner held that the circumstances brought on record “make him believe” that the accused-appellant has caused the death of Birsu Oraon. The facts of the case being Birsu Oraon had gone to observe paddy crop, who was found dead by his brother, who later informed the villagers who rushed to the jungle. The witness-Chandari Kumari has deposed in the court that the accused-appellant and the deceased-Birsu Oraon had gone to Tand. Wife of the deceased has also spoken on similar lines.

Amrita Banerjee, the Amicus had raised two-fold contentions that (i) the circumstances referred by the learned Additional Judicial Commissioner, do not complete the chain of circumstances so as to convict the appellant under Section 302 of the Penal Code and (ii) suspicion howsoever strong cannot be a substitute for the legal evidence so as to convict an accused, more particularly, in a serious offence like murder. The case of Navaneethakrishnan v. State, (2018) 16 SCC 161 was referred to, to contend that the incriminating circumstances must be clearly established by the reliable and clinching evidence and the circumstances so proved must form a chain of events from which it can be safely inferred that it was the accused and accused alone who has committed the crime. On the other hand, Arun Kumar Pandey, the APP had contended that once the accused has failed to explain satisfactorily the incriminating circumstances put to him in his examination under Section 313 CrPC, that he was last seen together with the deceased-Birsu Oraon, and he has failed to lead any evidence to establish. And that the circumstances brought on record “make him believe” that the accused-appellant has caused the death of Birsu Oraon.

The Court held that “the only circumstance which has been proved by the prosecution is that the accused was last seen in the company of the deceased. This may be one of the circumstances, but not the only circumstance on the basis of which an accused can be convicted for the offence under Section 302 IPC. The law assumes that when a man is last seen in the company of the accused and soon thereafter his dead body has been recovered it may be the accused who has committed the crime, but then, if the accused has offered an explanation what has happened thereafter, he has discharged his onus. To hold that an accused must answer each and every incriminating circumstance during his examination under Section 313 CrPC, would be against the basic principle in law. We find that the prosecution has miserably failed to establish its case against the appellant”. The Court appreciated the efforts of Amrita Banerjee, the learned Amicus who had prepared notes on the prosecution evidence and ably assisted the Court arguing this criminal appeal on behalf of the appellant.[Chari Oraon v. State of Bihar, 2019 SCC OnLine Jhar 544, decided on 04-04-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of Gita Mittal, CJ and Tashi Rabstan, J. dismissed the application filed to assail the decision passed by the Trial Court wherein the respondent was acquitted of the charges under Sections 376, 363 and 344 of the RPC for wrongfully restraining and raping the prosecutrix for several days.

The facts of the case are that an application was moved by the father of the prosecutrix alleging that his daughter referred to as the ‘prosecutrix’ was kidnapped by someone on 3-12-2015 and that she could not be traced. The prosecutrix was alleged to have been recovered on 15-12-2015 from a bus stand. The respondent was arrested in the matter based on the statement made by the prosecutrix. The case came before the Trial Court wherein it was held that the prosecutrix was aged between 18 to 20 years on the date of the offence and not a minor and hence the aspect of kidnapping from the custody of the lawful guardian, as was envisaged under Section 363 of the RPC, was not made out. The Trail Court thus acquitted the respondent of the first charge.  The second charge which was laid against the respondent was a commission of offences under Section 344 of the RPC with regard to the unlawful confinement of the prosecutrix for ten or more days and under Section 376 RPC for having raped her during this period. The Trial Court considered the entire evidence and found that the prosecutrix was in active contact of the respondent from September, 2015 and that she voluntarily left her home in his company to go with him on  3-12-2015 with her documents. Marriage was the solemnized. The applicant was acquitted since consent was shown.

The Court dismissed the appeal upholding the settled law that the appellate Court will not lightly interfere with the judgment of acquittal. [State v. Rajinder Paul Singh, 2019 SCC OnLine J&K 77, Order dated 30-01-2019]