Case: Dinesh Borthakur Vs. State Of Assam

commission of such a ghastly crime would run away from the scene of occurrence but he did not do so. Even if he was to pretend that he did not know about the said occurrence, he could have stayed back in his office waiting for the call of his neighbours about the death of his wife and daughter.46. His conduct or reaction (or lack of it) by itself, thus, cannot be a ground for arriving at a conclusion that he is guilty of commission of crime. Formation of another opinion is also possible. It may or may not be that the appellant, in presence of PW1, told "Mala should not have done that". The same by itself does not take us anywhere. Assuming that he did so, although according to the Investigating Officer, no such statement was made by PW1 before him, the same merely indicated that something had happened between the mother and the daughter in the morning which was not to the liking of the appellant.47. We are surprised to notice the introduction of a story by the prosecution through PW4. Even if the conduct of the appellant demonstrated that he had been feeling sorry for the death of his daughter and not for his wife, it does not take us any further to arrive at one conclusion or the other.48. More surprising is the introduction of the purported incriminating circumstances through some of the prosecution witnesses in regard to the location of the dead body and the manner in which things were discovered by some of the prosecution witnesses, although neither the Investigating Officer had noticed the same nor his attention was drawn thereto by the said witnesses or others.49. We have noticed hereto before that the prosecution witnesses did not make any statement in regard to the purported reaction of the appellant before the Investigating Officer.50. The prosecution made an attempt to show that the deaths of the victims were caused by administration of poison and/or strangulation. The bottle containing pesticide was found in the wash basin along with a glass inside the house. There is nothing on record to show that the appellant had purchased pesticide or brought it home. No fingerprint of the appellant was taken to show that it was he who had used the bottle or the glass for the said purpose. No incriminating evidence linking the appellant in regard to administration of poison/pesticide has been brought on record.51. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] , this Court opined that before arriving at the finding as regards the guilt of the appellant, the following circumstances must be established: "(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established;(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused and should not be explainable on any other hypothesis except that accused is guilty;(iii) the circumstances should be conclusive nature;(iv) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with innocence of the accused on preponderance of probability." In that case, it was categorically held that the prosecution in a case of commission of murder by poisoning must bring in record some evidence linking the accused therewith, stating: "In the instant case, while two ingredients have been proved but two have not. In the first place, it has no doubt been proved that Manju died of potassium cyanide and secondly, it has also been proved that there was an opportunity to administer the poison. It has, however, not been proved by any evidence that the appellant had the poison in his possession." It was furthermore observed: ";2. That, at any rate, the evidence clearly shows that two views are possible one pointing to the guilt of the accused and the other leading to his innocence. It may be very likely that the appellant may have administered the poison (potassium Cyanide) to Manju but at the same time a fair possibility that she herself committed suicide cannot be safely excluded or eliminated. Hence, on this ground alone the appellant is entitled to the benefit of doubt resulting in his acquittal.3. The prosecution has miserably failed to prove one of the most essential ingredients of a case of death caused by administration of poison, i.e., possession of poison with the accused (either by direct or circumstantial evidence) and on this ground alone the prosecution must fail." 52. First Information Report might have been lodged by the appellant only when the police arrived at the scene of occurrence. The Investigating Officer came to the place of occurrence at about 4.45 pm. PW1 categorically stated that he had asked someone to inform the police. When he did not comply therewith, then only he did so. If, in the aforementioned situation, the appellant had not informed the officer-in-charge of the police station, no presumption of adverse inference could be raised against him. There was no delay on the part of the appellant in informing the police, particularly, when he had informed PW1 who, in turn, informed the police.53. The learned Trial Judge has also relied upon the evidence of PW10, the owner of a Pan shop, who testified that the appellant had not visited the Pan shop on that day. His evidence, in our opinion, is not at all reliable. He admitted in his cross-examination that in the forenoon, his brother used to sit at the shop and, thus, his inference that the appellant used to take Pan regularly cannot be trustworthy.54. We, therefore, are of the firm view that circumstantial evidence leading to the guilt of the appellant have not been established by the prosecution, the judgment of the conviction and sentence, therefore, cannot be sustained. They are set aside accordingly. We can only record our distress that even in a case of this nature, appellant had to remain in custody for a period of four years.55

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]33. A finding of guilt cannot be based on a presumption. Before arriving at an inference that the appellant has committed an offence, existence of materials therefor ought to have been found. No motive for committing the crime was identified which, in the facts and circumstances of the case, was relevant. How the links in the chain of the circumstances led to only one conclusion that the appellant and the appellant alone was guilty of commission of the offence has not been spelt out by the learned Trial Judge.34. The courts below did not record any finding on the basis of any material brought on record by the prosecution that the appellant was seen at the place of occurrence of crime between 11.30 am to 4/5.00 pm. The least the prosecution, in this behalf, could do was to examine the co-employees of the appellant who had been working in his office to find out as to when he had reached his office or whether he had left his office at any time prior to 4.00 pm. No evidence was also led to bring on record the distance between the house of the appellant and his office. No witness also deposed in regard to the mode of his travelling. He had been seen going out of his house for his place of work by the prosecution witnesses. PW1 found him calling the name of his wife and the adopted daughter for opening of the main door. He went to the backside of the premises only when PW1 expressed his opinion that they might have been sleeping.35. The time lag between the appellants calling PW1 for the first time and the second time was a few minutes. The prosecution did not suggest nor any finding has been arrived at that the offence could have been committed during the said interval.36. PW1 on seeing the deceased Mala lying on the bed gathered an impression that the matter was not normal. Further, PW1 in his evidence states that the accused shook the leg of the child Munni stating that she was also not moving. It is the admitted case of the prosecution that the accused had asked PW1 to come and have a look PW1 himself was uncertain as to whether Mala and child Munni were already dead or not. The conduct of the appellant, so far his initial reaction to the occurrence is concerned, appears to be most natural as he suspected that something was wrong but was unsure thereabout at the same time. In any view of the matter, it does not give rise to an inference which is consistent with the hypothesis of guilt.37. At this juncture, we may place on record that PW6, in his evidence, in no uncertain terms, admitted that the scraping of nails taken from the two deceased did not correspond to the scrapping of skin taken from the body of the appellant. The prosecution, therefore, did not bring on record any material to show that the deceased had put up any resistance when the appellant had allegedly tried to commit the crime. Medical evidence brought on record also does not conclusively show that Mala Borthakur suffered a homicidal death as is evident from the autopsy report, which we have noticed hereinbefore.38. The mainstay of the prosecution case is the evidence of PW6, PW8, PW9 and PW13 who testified about the sniffer dogs staying near the accused and the reaction of the accused was not natural as he did not exhibit his emotion or sadness despite the fact that a shocking incident had occurred. So far as the evidence relating to the reaction of sniffer dog is concerned, this Court in Abdul Rajak Murtaja Dafedar v. State of Maharashtra [(1969 (2) SCC 234  stated the law, thusare three objections which are usually advanced against reception of the evidence of dog tracking. First since it is manifest that the dog cannot go into the box and give his evidence on oath and consequently submit himself to cross-examination, the dogs human companion must go into the box and the report the dogs evidence and this is clearly herarsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canineagain in Gade Lakshmi Mangaraju alias Ramesh v. State of A.P [2001 (6) SCC 205 ], this Courtare inherent frailties in the evidence based on sniffer or tracker dog. The possibility of an error on the part of the dog or its master is the first among them. The possibility of a misrepresentation or a wrong inference from the behaviour of the dog could not be ruled out. Last, but not the least, is the fact that from scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals. Investigation exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill afford them.The law in this behalf, therefore, is settled that while the services of a sniffer dog may be taken for the purpose of investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused.40. Let us now consider another aspect of the matter viz., the so called abnormal conduct on the part of the appellant. PW1 was considered to be the star witness by the prosecution. He was in his house upto 11.30 am. It can safely be inferred from his deposition that he had come back to his residence much prior to the appellant. He had not noticed any abnormality in the locality. Other witnesses who were the neighbours of the appellant and/or the shop owners who have their shops on the other side of the road were also not aware of any incident before the appellant reached his residence. PW1 and PW2, in their deposition, did not notice any unusual conduct on the part of the appellant or the deceased Mala on that day. The only unusual thing noticed by PW1, PW2 and PW3 was the abnormal crying of Munni in the morning for a long time. Something, therefore, must have happened between the mother and the daughter. It is difficult to believe that a six year old girl would cry so loudly and that too for such a long span of time so as to draw the attention of the neighbours only because the mother was giving her a bath. Something, therefore, must have happened which the deceased was trying to hide.41. We fail to see any abnormality in the initial reaction of the appellant. He knocked at the door vigorously. He called the deceased in a loud voice which attracted the attention of PW1. On a query made by the latter, he had stated that they had not been opening the door and only when PW1 opined that they must have been sleeping, he went to the rear side of the premises and discovered the dead bodies lying on the bed and again without any loss of time called PW1. PW1, in his cross-examination, admitted that reactions vary from person to person. Absence of any exhibition of sadness on the part of the appellant, according to PW1, was not the conduct of a normal human being. Manjuri Borthakurs evidence, however, is otherwise.42. We may notice that this Court in Rana Partap and others vs. State of Haryana reported in [1983 (3) SCC 327 ]another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginativealso Marwadi Kishor Parmanand and Another Vs. State of Gujarat [1994(4)SCC 549 ] and State of U.P. Vs. Devendra Singh [2004 (10) SCC 616 )].43. No hard and fast rule having any universal application with regard to the reaction of a person in a given circumstance can, thus, be laid down. One person may lose equilibrium and balance of mind, but, another may remain a silent spectator till he is able to reconcile himself and then react in his own way.44. Thus, merely because the appellant did not cry or weep on witnessing the dead bodies of his wife and daughter, cannot be made the basis for informing his guilt.45. If he had gone to his office and come back therefrom between 11.30 am till 4/5.00 pm, the matter might have been different. If the theory that he could have committed the murder within a couple of minutes is ruled out, we fail to see on what basis even a suspicion could have been raised that the appellant had committed the crime. It is not the case of the prosecution that the deceased were last seen in the company of the appellant. Nobody had seen him going inside his house or coming out at the time of or near about the commission of the crime. The matter might have been different if some evidence had been introduced to suggest that the offence was committed sometime between 11.30 am and 4/5.00 pm. Ordinarily, an accused person after commission of such a ghastly crime would run away from the scene of occurrence but he did not do so. Even if he was to pretend that he did not know about the said occurrence, he could have stayed back in his office waiting for the call of his neighbours about the death of his wife and daughter.46. His conduct or reaction (or lack of it) by itself, thus, cannot be a ground for arriving at a conclusion that he is guilty of commission of crime. Formation of another opinion is also possible. It may or may not be that the appellant, in presence of PW1, told "Mala should not have done that". The same by itself does not take us anywhere. Assuming that he did so, although according to the Investigating Officer, no such statement was made by PW1 before him, the same merely indicated that something had happened between the mother and the daughter in the morning which was not to the liking of the appellant.47. We are surprised to notice the introduction of a story by the prosecution through PW4. Even if the conduct of the appellant demonstrated that he had been feeling sorry for the death of his daughter and not for his wife, it does not take us any further to arrive at one conclusion or the other.48. More surprising is the introduction of the purported incriminating circumstances through some of the prosecution witnesses in regard to the location of the dead body and the manner in which things were discovered by some of the prosecution witnesses, although neither the Investigating Officer had noticed the same nor his attention was drawn thereto by the said witnesses or others.49. We have noticed hereto before that the prosecution witnesses did not make any statement in regard to the purported reaction of the appellant before the Investigating Officer.50. The prosecution made an attempt to show that the deaths of the victims were caused by administration of poison and/or strangulation. The bottle containing pesticide was found in the wash basin along with a glass inside the house. There is nothing on record to show that the appellant had purchased pesticide or brought it home. No fingerprint of the appellant was taken to show that it was he who had used the bottle or the glass for the said purpose. No incriminating evidence linking the appellant in regard to administration of poison/pesticide has been brought on record.51. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] , this Court opined that before arriving at the finding as regards the guilt of the appellant, the following circumstances must bethe circumstances from which the conclusion of guilt is to be drawn should be fully established;(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused and should not be explainable on any other hypothesis except that accused is guilty;(iii) the circumstances should be conclusive nature;(iv) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with innocence of the accused on preponderance ofthat case, it was categorically held that the prosecution in a case of commission of murder by poisoning must bring in record some evidence linking the accused therewith,the instant case, while two ingredients have been proved but two have not. In the first place, it has no doubt been proved that Manju died of potassium cyanide and secondly, it has also been proved that there was an opportunity to administer the poison. It has, however, not been proved by any evidence that the appellant had the poison in his;2. That, at any rate, the evidence clearly shows that two views are possible one pointing to the guilt of the accused and the other leading to his innocence. It may be very likely that the appellant may have administered the poison (potassium Cyanide) to Manju but at the same time a fair possibility that she herself committed suicide cannot be safely excluded or eliminated. Hence, on this ground alone the appellant is entitled to the benefit of doubt resulting in his acquittal.3. The prosecution has miserably failed to prove one of the most essential ingredients of a case of death caused by administration of poison, i.e., possession of poison with the accused (either by direct or circumstantial evidence) and on this ground alone the prosecution must fail.First Information Report might have been lodged by the appellant only when the police arrived at the scene of occurrence. The Investigating Officer came to the place of occurrence at about 4.45 pm. PW1 categorically stated that he had asked someone to inform the police. When he did not comply therewith, then only he did so. If, in the aforementioned situation, the appellant had not informed the officer-in-charge of the police station, no presumption of adverse inference could be raised against him. There was no delay on the part of the appellant in informing the police, particularly, when he had informed PW1 who, in turn, informed the police.53. The learned Trial Judge has also relied upon the evidence of PW10, the owner of a Pan shop, who testified that the appellant had not visited the Pan shop on that day. His evidence, in our opinion, is not at all reliable. He admitted in his cross-examination that in the forenoon, his brother used to sit at the shop and, thus, his inference that the appellant used to take Pan regularly cannot be trustworthy.54. We, therefore, are of the firm view that circumstantial evidence leading to the guilt of the appellant have not been established by the prosecution, the judgment of the conviction and sentence, therefore, cannot be sustained. They are set aside accordingly. We can only record our distress that even in a case of this nature, appellant had to remain in custody for a period of four years.