HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 48 Criminal Appeal No. 79 of 1988 1. [ENTITY] 2. [ENTITY] (dead) Appellants Vs. [ENTITY] Respondent For Appellants : Shri [ENTITY], Sri [ENTITY] For Respondent/State : Shri [ENTITY], A.G.A. Hon'ble [ENTITY], J.
Hon'ble [ENTITY], J.
Per: [ENTITY], J (30.09.[SECTION]9)
1. This appeal arises out of the impugned judgement and order dated 07.01.1988 passed by Ist Additional Sessions Judge, Rampur in Sessions Trial No. 194 of 1986 (State Vs. [ENTITY] and Others), convicting the accused-appellant no. 1 [ENTITY] under [SECTION] & [SECTION] of [ACT], and sentencing him to undergo imprisonment for life under [SECTION] under [SECTION] of [ACT].
2. In the present case, name of the deceased is [ENTITY], wife of appellant no. 1 [ENTITY]. Their marriage was solemnized about four years prior to the incident and the deceased died homicidal death on 09.05.1986. According to prosecution, accused-appellant [ENTITY] was having illicit relation with his sister-in-law [ENTITY] (acquitted accused) and that is why he, with the help of other accused persons, eliminated her. On 09.05.1986, written report Ex.Ka.1 was lodged by PW-1 [ENTITY], father of the deceased, alleging in it that after about three years of marriage, her daughter was subjected to cruelty by the accused-appellants for demand of dowry, and on 09.05.1986, when he had gone to meet his daughter, she was not there and no satisfactory answer could be given by the appellant and his other family members. Based on this report, offence under [SECTION] of [ACT] was registered against the appellant [ENTITY], his father [ENTITY], mother [ENTITY], and sister-in-law [ENTITY]. Later, on 12.05.1986, dead body of the deceased was found in a sugar cane field of one [ENTITY].
3. Inquest on the dead body of deceased was conducted vide Ex.Ka.4 on 12.05.1986 and the body was sent for postmortem, which was conducted on the same day vide Ex.Ka.2 by Dr. [ENTITY]. However, the autopsy surgeon has not been examined.
4. In the postmortem report, following eight injuries have been found on the body of the deceased:
"1.Incised wound 8cm x 3cm bone deep on the back of right hand.
2. Abrasion 2cm x 1/3cm on middle of upper lip.
3. Abrasion 1cm x cm on left angle of mouth.
4. Abrasion cm x 1/3cm just outer to left nostril of nose.
5. Lacerated wound 1cm x cm x muscle deep on middle of inner side of lower lip.
6. Nose is flattered and fractured.
7. Abrasion on right cheek 1cm x cm.
8.Abrasion 1cm x cm on the inner aspect of right ankle."
Cause of death of the deceased was due to asphyxia as a result of suffocation.
5. While framing charge, the trial Judge has framed charge against [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] under [SECTION], [SECTION], [SECTION] and [SECTION] of [ACT]. In addition, separate charge under [SECTION] of [ACT] was also framed against the appellant.
6. So as to hold accused-persons guilty, prosecution has examined seven witnesses. Statements of the accused-persons were also recorded under [SECTION] [ACT] in which, they pleaded their innocence and false implication.
7. By the impugned judgment, the trial Judge has convicted accused-appellant [ENTITY] and his father [ENTITY] under [SECTION] and [SECTION] of [ACT] but has acquitted the appellants of all the other offences. The trial judge has further acquitted the other accused persons of all the offences. Hence this appeal.
8. During the pendency of present appeal, accused [ENTITY] has expired and, therefore, appeal in his respect is dismissed as having become abated. Now, the present appeal confines only in respect of accused-appellant [ENTITY].
9. Learned counsel for the appellant submits:
(i) that appellant has been convicted solely on the basis of circumstantial evidence, but the nature of circumstantial evidence is so weak, which cannot be made basis for his conviction.
(ii) that on the basis of same set of evidence, other accused persons have been acquitted and therefore, same treatment ought to have been given to the accused appellant also.
(iii) that there is no evidence on record connecting the appellant in any manner with the murder of the deceased. Likewise, there is no evidence bringing home the offence under [SECTION] of [ACT]
(iv) that the main evidence against the appellant is statement of PW-3 [ENTITY], but the diary statement of the said witness was recorded after 15-16 days of the incident and, therefore, it creates a doubt as to whether he is a reliable witness or not.
(v) that postmortem report of the deceased has not been proved in accordance with law as the Autopsy Surgeon has not been examined. In absence of examination and cross-examination of Autopsy Surgeon, it cannot be held that the deceased died homicidal death.
10. On the other hand supporting the impugned judgment, it has been argued by the State counsel that the conviction of the appellant is in accordance with law and there is no infirmity in the same. He further submits that as the postmortem report has been admitted by the defence, therefore, the Autopsy Surgeon was not examined.
11. We have heard counsel for the parties and perused the record.
12. PW-1 [ENTITY] is a father of the deceased, states that accused persons were residing in a joint family and after marriage, whenever he used to visit her daughter, she used to make complaint against the accused persons of harassing her for demand of dowry. He further states that on the date of incident when he had gone to the house of his daughter, she was not there nor any satisfactory answer could be given by the accused persons. After returning home, he lodged a report against the accused persons, based on which, FIR was registered against them. On the 3rd day of lodging the report, dead body of the deceased was found in the sugar cane field.
13. PW-2 [ENTITY] is a witness of [ENTITY] and he is also the scribe of FIR. He states that he was informed by the deceased that appellant and his family members used to beat her and that they were demanding a Cow.
14. PW-3 [ENTITY] is a neighbour of the appellant, states that on the date of occurrence, when he was in his house, after hearing the cries from the house of his neighbour [ENTITY], from his roof top, he saw accused persons beating the deceased [ENTITY] and thereafter, she become unconscious. Accused-appellant [ENTITY] pressed her by a quilt. Here, it is relevant to mention that in [SECTION] of [ACT] statement, he has stated that it is the accused [ENTITY], who pressed her. In the cross-examination, he failed to offer any explanation regarding his delayed diary statement and has merely stated that he never informed the Investigating Officer that the incident occurred 15-16 days back.
15. PW-4 [ENTITY] is a witness of so called extra judicial confession made by deceased-accused [ENTITY].
16. PW-5 [ENTITY] has stated that after hearing the cries, he asked his nephew to see as to what is happening and then his nephew informed him whatever he saw from his roof top. Thus, he becomes a hearsay witness. His 161 [ACT] statement was also recorded after about 15 days of the incident.
17. PW-6 [ENTITY] is a first Investigating Officer. PW-7 [ENTITY] is a second Investigating Officer, who filed charge sheet.
18. Close scrutiny of the evidence makes it clear that the marriage of the deceased was solemnized about 4-5 years prior to the incident and she died an unnatural death on 09.05.1986. From the evidence, it also reflects that the deceased was subjected to harassment by all the accused persons. However, there is no conclusive and clinching evidence showing the involvement of the appellant in committing the murder of the deceased.
19. Law in respect of circumstantial evidence is very clear:
In [PRECEDENT], the Supreme Court, while dealing with circumstantial evidence, observed as under:
"11. In [PRECEDENT], which is one of the earliest decisions on the subject, this court observed as under:
"10. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
12. In [PRECEDENT], this court held that when a case rests upon circumstantial evidence, the following tests must be satisfied:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) 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 none else."
13. In [PRECEDENT], it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be 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) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
20. Recently, in [PRECEDENT] the Supreme Court, while dealing with circumstantial evidence, observed as under:
14. The classic enunciation of law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable decision of the Court in [PRECEDENT]. The relevant excerpts from para 153 of the decision is assuredly apposite:
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in [PRECEDENT] where the observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
21. It has further been considered by Apex Court in Sujit Biswas Vs. State of Assam [SECTION]3(12) SCC 406 and Raja alias Rajinder Vs. State of Haryana [SECTION]5(11) SCC 43. It has been propounded that while scrutinising the circumstantial evidence, a Court has to evaluate it to ensure the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straight jacket formula which can be laid down for the purpose. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused.
22. It is further settled position of law that suspicion howsoever grave it is, it cannot take place of evidence. Recently in Devi Lal vs. State of Rajasthan; AIR [SECTION]9 SC 688 the Apex Court, while dealing with a case, observed as under:
"On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof."
23. In the present case, needle of suspicion definitely goes against the accused persons, but it does not pin point the appellant. As per diary statement of PW-3 [ENTITY], it is [ENTITY], who pressed her by a quilt whereas in the court statement of PW-3, he stated that it is the appellant, who pressed the deceased. Moreover, the statement of PW-3 [ENTITY] and PW-5 [ENTITY] have already been disbelieved by the trial court holding that these are not trustworthy witnesses as they were having inimical relations with the accused persons. On the same set of evidence, the trial court has acquitted some of the accused, whereas has convicted the appellant and deceased accused [ENTITY]. The evidence adduced by the prosecution is not clinching and conclusive and therefore, we find it difficult to uphold the judgment of the trial court. The accused appellant is entitled to get the benefit of doubt.
24. The appeal is, accordingly, allowed. The judgment of Trial Court is set aside. Appellant [ENTITY] is on bail, therefore, no further order is required.
Dated: 30.09.[SECTION]9 SK/TS ([ENTITY],J) ([ENTITY],J)