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.

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]

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]

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]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench comprising of Vipin Sinha and Ifaqat Ali Khan, JJ. dismissed the appeal as the applicant failed to prove the alleged charges against the accused.

The applicant through his counsel Afzal Ahmad Khan Durrani has filed an application seeking leave to appeal against the judgment by means of which all the accused persons have been acquitted for the offence punishable under Sections 394/34, 302/34, 201, 120B and 411 IPC along with Section 25/5/35 Arms Act. He has stated that along with the body of the deceased silver ornaments were also found at the spot.

It was important to note that the silver ornaments costed about Rs 5,000 which was a very meagre amount to commit murder plus neither the court could find a reason as to why the accused would commit the murder along with the fact that no active participation of the accused could be proved.

The High Court stated that a witness could lie but not the circumstances and in this case chain of pieces of evidence furnished by those circumstances were far from complete which failed to prove the guilt of the accused. Here the Court reiterated the basic rule of criminal jurisprudence according to which if two views were possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt a view which is favorable to the accused. Hence as the applicant failed to prove the charges against the accused the appeal was dismissed. [Mira Devi v. State of U.P., 2018 SCC OnLine All 3307, Order dated 04-07-2018]

Case BriefsSupreme Court

“While the crime is important, the criminal is equally important insofar as the sentencing process is concerned.”

-Madan B. Lokur, J.

Supreme Court: A Bench comprising of Madan B. Lokur, S. Abdul Nazeer and Deepak Gupta, JJ. commuted the death sentence awarded to the review petitioner to life imprisonment. The petitioner was convicted under Sections 376(2)(f), 377 and 302 IPC for rape and murder of a 3- year old girl. He was awarded death sentence by the trial court which was confirmed by Bombay High Court. Aggrieved thereby, he preferred an appeal before the Supreme Court which was dismissed. Now, the petitioner was before the Court for review of its judgment dismissing his appeal.

The Court was concerned with the order of death sentence awarded to the petitioner and focused its discussion on certain points including:

Circumstantial evidence

According to the petitioner, the case was based on circumstantial evidence. The Court held, “ordinarily, it would not be advisable to award capital punishment in a case of circumstantial evidence. But there is no hard and fast rule.”

Reform, rehabilitation and re-integration into society

Harking back to Bachan Singh v. State of Punjab, (1980) 2 SCC 684, the Court held that “Bachan Singh requires us to consider the probability of reform and rehabilitation and not its possibility or its impossibility… it is the obligation on the prosecution to prove to the court, through evidence, that the possibility is that the convict cannot be reformed or rehabilitated.”

DNA evidence

The Court laid stress on the usefulness of the advanced scientific technology and advised the prosecution to take advantage of it in such cases as the present one and stated, “where DNA profiling has not been done or it is held back from the Trial Court, an adverse consequence would follow for the prosecution.”

Prior history of the convict or criminal antecedents

After considering various earlier decisions, the Court held that mere pendency of one or more criminal cases against a convict cannot be a factor for consideration while awarding sentence.

In the instant case, the Court was of the opinion that the prosecution was remiss in not producing the available DNA evidence which lead to an adverse presumption against the prosecution. The trial court was in error in taking into consideration, for the purposes of sentencing, the pendency of two similar cases against the petitioner. Looking at the crimes committed by the appellant and the material on record including his overall personality and subsequent events, the Court commuted the sentence of death awarded by the petitioner while directing that he should not be released from custody for the rest of his normal life. the review petition was disposed of accordingly. [Rajendra Pralhadrao Wasnik v. State of Maharashtra,2018 SCC OnLine SC 2799, decided on 12-12-2018]

Case BriefsHigh Courts

Patna High Court: A Division Bench comprising of Ajay Kumar Tripathi and Vinod Kumar Sinha, JJ. declared that there were no reasons that added up to convict the accused.

The appellants were convicted under Section 302 read with Sections 34 and 201 of the Penal Code, 1860 to undergo rigorous imprisonment for life. The prosecution had accused the appellants for being involved in the murder of the deceased and giving due reliance upon the fact that the deceased was the wife of the appellant-son along with the fact that the death happened within 3 years of marriage, the onus was upon the appellants as per Section 106 of the Indian Evidence Act to explain the above contention. It was to be noted that in the post-mortem report the cause of death was strangulation but, neither any eyewitnesses were placed on record nor was there any link to establish the said act along with the fact that there was no motive with the appellant to kill the deceased.

Accordingly, the Court was of the view that there was only circumstantial evidence placed before them and hence the appellant cannot be charged solely on that basis.[Galmuni Ram v. State of Bihar,2017 SCC OnLine Pat 3377, decided on 11-11-2017]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Murlidhar and I.S. Mehta, JJ., dismissed an appeal against conviction for offence under Section 302 r/w 34 IPC wherein the appellants were sentenced to life imprisonment with fine of Rs 5000 each.

The appellants had been found guilty of murdering a youth by inflicting multiple stab injuries. Two of the accused-appellants had been arrested on the basis of statements of the brothers of the deceased PW 4, PW 5 and PW 6 whereas, the third accused had surrendered voluntarily and at his instance, the murder weapon was recovered. The FSL report confirmed presence of human blood of the same blood group as the deceased on the murder weapon as well as on the clothes of the two accused-appellants arrested.

The Court found that each link in the chain of circumstance had been proved beyond reasonable doubt and with the complete chain of circumstance so proved pointing unerringly to the guilt of the three appellants and no one else. The Court, unable to find any legal infirmity in the impugned judgment of the trial Court or the order on sentence, dismissed the appeals. [Parvesh v. State,  2018 SCC OnLine Del 9055, decided on 17-05-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of John Michael Cunha, J., decided a criminal petition filed under Section 439 CrPC, wherein the petitioners- Accused 2 and 3, were enlarged on bail, holding that the circumstantial evidence against the petitioners placed on record was not sufficient to extend the custody of the petitioners.

The petitioners were booked under Sections 143, 147, 148, 302, 323, 363, 506 read with Section 149 IPC. It was alleged that the petitioners caused death of the deceased. Learned counsel for the petitioners submitted that the case against the petitioners was based on suspicion. And the evidence collected by the prosecution was too week to connect the petitioners to the alleged crime. He submitted that the investigation in the case was complete and hence, the petitioners may be enlarged on bail.

The High Court perused the record and found that the case of the prosecution was based on circumstantial evidence. The circumstance relied on by the prosecution was the last seen theory. However, there was no clear material as to the motive behind the alleged crime. Therefore, taking into consideration all the facts and circumstances, the Court held that it was not proper to extend the custody of the petitioners solely by way of punishment. Accordingly, the petitioners- accused 2 and 3, were enlarged on bail. [Jameer v. State of Karnataka, Crl. Petition No. 100086 of 2018, order dated 23.3.2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench comprising of Sanjay Karol, Acting CJ and Ajay Mohan Goel, J., decided a criminal appeal filed by the State, wherein the order of acquittal passed in favor of the accused by the trial court was upheld.

The respondent was one of the accused in a criminal case registered under Sections 302 and 201 read with Section 34 IPC. The accused was alleged of murder of the deceased with whom he had strained relations due to pending litigation. The trial court acquitted the accused on the ground that the prosecution was not able to prove its case beyond reasonable doubt. Aggrieved thus, the State filed the instant petition.

The High Court perused the record and found that there was no eyewitness to the alleged incident and the prosecution case was wholly based on circumstantial evidence. The Court referred to a Supreme Court decision in Vijay Thakur v. State of H.P., (2014) 14 SCC 609 to discuss the law regarding circumstantial evidence. The Court observed that the said case carved out following principles relating to circumstantial evidence, on the basis of which guilt of the accused can be proved:

1. Circumstances from which the guilt is to be drawn must be fully established;

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. Circumstances should be of a conclusive nature and tendency;

4.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.

In the instant case, the Court was of the view that the prosecution was not able to complete the chain of circumstances so as to exclude every possible hypothesis except the one to be proved. The case of the prosecution was not proved beyond reasonable doubt. Accordingly, the appeal filed by the State was dismissed and the trial court’s order of acquitting the appellant was upheld. [State of H.P. v. Mahinder Kumar, 2017 SCC OnLine HP 1856, order dated 11.12.2017]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of S. Murlidhar and I.S. Mehta JJ., set aside the conviction and sentence of the petitioners convicted under Section 302/24 of the IPC. The matter lay before the High Court via an appeal against the judgment and order of the learned Addl. Sessions Judge whereby the petitioners were condemned to life imprisonment along with fine of Rs. 5000 each.

The accused were allegedly seen drinking with the deceased by the deceased’s brother (PW 15) on the intervening night between 10th and 11th June 1999. The following morning, the deceased’s body was found lying atop a rickshaw along with a blood-smeared knife not far from the body along with a chappal. The post-mortem report conclusively pointed towards homicide with a sharp weapon which could be the knife collected from the crime scene.

The learned Addl. Sessions Judge had passed the conviction on the basis of circumstantial evidence forming a complete chain of events by which the guilt of the accused could not be denied. However, the court found material discrepancies in the testimony of the PW 15. First off, PW 15, being an interested witness had to examined carefully. He had talked about a “Chander ki Garage”, where allegedly the deceased had been drinking with the accused, which was not visited or enquired about by the IO. The recorded statement of PW 15 also gave the impression that his statement was recorded after the dead body had already been found as PW 15 states to have started looking for the accused instead of his brother in the morning. Barring the shaky testimony of PW 15 there was also no other proof showing that there was previous enmity between the accused and the deceased, hence removing motive from the equation. The Court stated that though the evidence of ‘last seen’ may evoke suspicion, it does not, in the surrounding circumstances attain the status of proof. Petition allowed. [Chhatar Pal v. State, 2018 SCC OnLine Del 6678, decided on 18.01.2018]

Case BriefsHigh Courts

Bombay High Court: While deciding criminal appeals filed against the judgment and order of conviction passed by the learned Trial Judge against the appellants-accused; a Division Bench comprising of V.K. Tahilramani, J and Dr. Shalini Phansalkar Joshi, J. quashed the impugned judgment and set aside the conviction and sentence of accused 1.

The appellants were convicted and sentenced for offences punishable under Sections 120(B), 302 and 201 read with 34 of the Penal Code. The accused were alleged to have murdered the deceased. During investigation, the role of Accused 1 and 2 in the alleged crime, transpired. However, no overt acts were attributed to Accused 1. Prosecution examined as many as twelve witnesses and the trial court convicted all the accused of the alleged offence.

The High Court perused the material available on record and found that the instant case was based on circumstantial evidence. There was no eyewitness to the incident. The Court was of the opinion though that the conviction can be based on circumstantial evidence alone, but for that the prosecution must establish the chain of circumstances, which consistently points to the accused and accused alone and is inconsistent with their innocence. It is further essential for the prosecution to cogently and firmly establish the circumstances from which inference of guilt of accused is to be drawn. These circumstances then have to be taken into consideration cumulatively. They must be complete to conclude that within all human probability, the accused and none else have committed the offence.

The Court was of the view that when the case is based on circumstantial evidence, motive assumes significance. In the instant case, the prosecution failed to even allege or to prove such motive. Mother of the deceased, in her cross-examination stated that the relations between the deceased and Accused 1 were cordial all the while. According to her evidence, there were quarrels between the deceased and other vegetable vendors. Thus, in there was absolutely no convincing, reliable or cogent evidence brought on record by the prosecution to prove the guilt of the accused beyond reasonable doubt.

Allowing the appeals, the judgment of the trial court convicting the accused was quashed and set aside. [Ramesh Durgappa Hirekerur v. State of Maharashtra,  2017 SCC OnLine Bom 9109, dated 27.09.2017]