circumstantial evidence

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 years, by 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]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Vipin Sanghi and P.S. Teji, JJ, upheld the conviction and sentence passed by the trial court under Sections 498-A and 302 while acquitting him from charges under Section 304-B IPC.

The appellant had been convicted by the trial court based on circumstantial evidence, where the prosecution had linked all the circumstances by presenting evidence which pointed towards the guilt of the accused. Based on the testimonies of various witnesses, who were cross-examined by the defense but remained unshaken in their stand, the accused was held guilty under Section 498-A IPC. The High Court upheld the conviction and sentence on this count.

On the question of conviction under Section 302/304-B, the Court found enough circumstantial evidence on record for conviction under Section 302 but not for conviction under Section 304-B. Evidences on record were the murder weapon, the fact that the accused and deceased were home alone at the time of death, the fact that the crime took place in the dead of the night along and the post-mortem reports. Moreover, the appellant had alleged that some unknown trespassers had killed his wife, however, he failed to substantiate his allegations. Section 106 of the Evidence Act puts the onus of proof on the person having special knowledge surrounding the circumstances of an occurrence, and since, on that night, the only person besides the deceased in the house was the accused, he is the master of such knowledge. Therefore, the appellant has failed to discharge the onus put upon him.

Consequently, the conviction and sentence under Sections 302 and 498-A IPC were upheld and conviction under Section 304-B was reversed. The appeal was disposed of with modifications. [Dilip @ Deepak v. State,   2017 SCC OnLine Del 11854, decided on 13.11.2017]

Case BriefsHigh Courts

Bombay High Court: In an appeal filed against the decision of the Trial Court convicting the appellant for murder under S. 302 of the Penal Code of 1860, a Division Bench comprising of T.V. Nalawade and Sunil K. Kotwal, JJ, set aside the conviction and acquitted the accused of the offence of murder. The Court stated that merely because the first informant, brother-in-law of the deceased gave the FIR and because he deposed that he saw the accused or appellant running away from the location where the deceased’s body was recovered, a case was registered against the appellant and based only on suspicion, he was convicted.

Referring to the essential elements required to establish guilt through circumstantial evidence established by the Supreme Court in State of U.P. v. Dr. Ravindra Prakash Mittal, (1992) 3 SCC 300, the Court reaffirmed that: circumstances from which conclusion is drawn should be fully proved; circumstances should be conclusive; all established facts should be consistent with the hypothesis of guilt and inconsistent with the innocence of the accused; and circumstances should exclude possibility of guilt of any person other than the accused.

In addition to these, the Court added that “chain of evidence must be so complete”…that the “circumstances must show that in all human probability, the act must have been done by the accused.” In the present case, other probabilities have been created due to the first informant’s cross-examination which, according to the Court, raise questions against his account. Therefore, the conviction was set aside. [Bhagwat s/o. Narayan Mundhe v. State of Maharashtra, 2017 SCC OnLine Bom 6604, decided on 20.07.2017]

Case BriefsSupreme Court

Supreme Court: In the case where the appellant was accused to have caused the deaths of his wife and five daughters, the Court, by a 2:1 majority, acquitted the appellant due to lack of evidence against him.

The crucial points that were before the Court for consideration are as follows:

  • The house in question which opened in a gali was bolted from inside on the fateful night.
  • The appellant was found lying unconscious in a room where there were five dead bodies with another dead body in the adjoining room.
  • A knife, which could possibly have caused injuries to the deceased, was lying next to his left hand.
  • He had offered no explanation how the incident had occurred and as such a presumption could be drawn against him under Section 106 of the Evidence Act.

U.U. Lalit abd Ranjan Gogoi, JJ, who gave the majority view, said that the prosecution did not place on record the material indicating what made him unconscious; what was the probable period of such unconsciousness and whether the appellant was falsely projecting it. Hence, the explanation that he knew nothing as he was unconscious cannot be called, ‘absence of explanation’ or ‘false explanation’. Further, regarding the bolted door of the house, it was said that though the door of the house which opened in the gali was stated to have been bolted from inside, the rooms were not locked and the possibility of a person/persons other than the inmates of the house getting into the house cannot be ruled out. Also, the prosecution did not gather the finger prints either in the house or even on the iron knife which was allegedly used for committing the offence in question. If the finger prints on the knife were to be that of the appellant alone, such factor could certainly have weighed against the appellant.

The acquittal of the appellant was based on the reasoning that the circumstances mentioned above do not form a complete chain of evidence and that the law regarding appreciation of cases based on circumstantial evidence is clear that the chain of evidence must be so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must exclude every possible hypothesis except the one to be proved namely the guilt of the accused.

However, as per P.C. Pant, J, the prosecution had not failed to prove the case. He considered the fact that the mother of the appellant, who was present in the house at the time of the commission of the offence, had said that her son had killed the other members of her family and the same was corroborated by the neighbours. Regarding the fact that the appellant’s mother turned hostile, the judge said that the reason as to why she has turned hostile is not difficult to be found out as she was going to lose the only son left with her. Also, the wife of the appellant had, on an earlier occasion, mentioned it before one of the witnesses that the accused used to complain that his family has become large with daughters only which makes it clear that the appellant had the motive for committing murder.

He also added that normally, it is not the duty of the accused to explain how the crime has been committed. But in the matters of unnatural death inside the house where the accused had his presence, non-disclosure on his part as to how the other members of his family died, is an important reason to believe as to what has been shown by the prosecution through the evidence on record is true. Simple reply by the accused in his statement under Section 313 CrPC that he did not know as to how the incident happened, particularly when he was in the house, does certainly make easier to believe the truthfulness of the evidence that has been adduced by the prosecution in support of charge against him. He, hence, said that considering all the facts, circumstances and the established principle of law laid down by this Court, in the present case, sentence of imprisonment for life would meet the ends of justice. [Dhal Singh Dewangan v. State of Chhattisgarh, 2016 SCC OnLine SC 983, decided on 23.09.2016]

Case BriefsSupreme Court

Supreme Court: While deciding upon the issue that whether an accused can be convicted only on the basis of suspicion and circumstantial evidence without any direct proof given by the prosecution, the Division Bench of V. Gopala Gowda and Amitava Roy, JJ., held that it would be unjustified to convict an accused only on the basis of suspicion and circumstantial evidence until and unless that evidences are corroborative with direct proof given by the prosecution. The Court thereby set aside the decision of High Court of Patna and held that an accused cannot be convicted until and unless all charges against him are proved beyond any reasonable doubt by the prosecution.

The appellant and deceased were husband and wife, while returning from their honeymoon the deceased went missing. The prosecution (parents of deceased) filed a complaint against appellant and his parents that they murdered the deceased due to non-fulfilment of their dowry demands. The High Court of Patna convicted appellant under Sections 304-B, 201 and 498-A of IPC. R. Basant, on behalf of appellant contended that the prosecution had failed to prove that the dead body recovered was that of deceased and cast doubts over the authenticity of the DNA test report. Also there were no evidences regarding any demand of dowry made by the appellant and treatment of the deceased with cruelty. However Subramonium Prasad, representing the respondents,  questioned the conduct of appellant for not giving the information of disappearance of his wife to the parents of deceased.

The Court relying on the Raj Kumar Singh v. State of Rajasthan, (2013) 5 SCC 722, observed that there is difference between “may proved” and “must be proved” and the accused cannot be convicted on the evidences which “may prove” his guilt without the presence of evidences which “must prove” the guilt of the accused. If two conclusions can be drawn from the case, one which refers to the guilt of accused and other which refers to an innocence of accused, then the Court should first follow the conclusion which refers to the innocence of accused. No accused should be convicted, till all the evidences presented by the prosecution, proves the guilt of an accused beyond any reasonable doubt. [Rajiv Singh vs. State of Bihar, 2015 SCC OnLine SC 1336, decided on 16.12.2015]