REENA HAZARIKA versus STATE OF ASSAM
[2018] 13 S.C.R. 1108, Supreme Court of India, 2018
Outcome: Leave Granted & Allowed (Granted)
Segment: Facts
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REENA HAZARIKA
v.
STATE OF ASSAM
(Criminal Appeal No. 1330 of 2018)
OCTOBER 31, 2018
[R. F. NARIMAN AND NAVIN SINHA, JJ.]
Evidence: Circumstantial evidence – Links in the chain of
circumstances – Determination of – Prosecution case that wife killed
her husband on basis of the last seen theory and the unnatural
conduct of wife – Conviction u/s 302 IPC by the courts below – On
appeal, held: In view of the nature of evidence available coupled
with the manner of its consideration, the links in the chain of
circumstances in a case of circumstantial evidence not established
to prove that the appellant was the assailant of the deceased –
Possibility that the occurrence may have taken place in some other
manner cannot be completely ruled out – Furthermore, neither trial
court nor the High Court considered it necessary to take notice of
the defence by the appellant u/s.313 – Complete non-consideration
thereof has clearly caused prejudice to the appellant – Thus, the
appellant entitled to acquittal on the benefit of doubt.
Circumstantial evidence – Essentials of – Explained.
Code of Criminal Procedure, 1973: s. 313 – Power to examine
the accused – Scope and significance of – Explained.
Allowing the appeal, the Court
HELD: 1. The entirety of the discussion, in the facts and
circumstances of the case, the nature of evidence available
coupled with the manner of its consideration, leaves the Court
satisfied that the links in the
chain of circumstances in a case of
circumstantial evidence, cannot be said to have been established
leading to the inescapable conclusion that the appellant was the
assailant of the deceased, incompatible with any possibility of
innocence of the appellant. The possibility that the occurrence
may have taken place in some other manner cannot be completely
ruled out. The appellant is therefore held entitled to acquittal on
the benefit of doubt. [Para 18][1119-C-D]
[2018] 13  S.C.R. 1108
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2.1 Normally this Court under Article 136 of the
Constitution, would be reluctant in appeal to interfere with the
concurrent findings of two courts by re-appreciating the facts and
evidence. But in an appropriate case, if this Court finds that there
has been erroneous consideration and appreciation of facts and
evidence, leading to miscarriage of justice, this Court is duty
bound to ensure that ultimately justice prevails. The principle of
criminal jurisprudence that several accused may go free, but an
innocent person should not be punished. [Para 7][1113-G-H;
1114-A-B]
Anant Chintaman Lagu v. State of Bombay [1960] 2 SCR
460 – referred to.
2.2 In a case of circumstantial evidence the prosecution is
required to establish the continuity in the links of the chain of
circumstances, so as to lead to the only and inescapable conclusion
of the accused being the assailant, inconsistent or incompatible
with the possibility of any other hypothesis compatible with the
innocence of the accused. Mere invocation of the last seen theory,
sans the facts and evidence in a case, will not suffice to shift the
onus upon the accused under Section 106 of the Evidence Act,
1872 unless the prosecution first establishes a prima facie case.
If the links in the chain of circumstances itself are not complete,
and the prosecution is unable to establish a prima facie case,
leaving open the possibility that the occurrence may have taken
place in some other manner, the onus will not
shift to the accused,
and the benefit of doubt will have to be given. [Para 8]
[1114-G-H; 1115-A-B]
2.3 PW-1 deposed that he was told by the deceased at about
11:00 p.m. that he had suffered a head injury because of a fall,
and that the witness did not provide any first aid to the deceased
though he along with his brother PW 2, did try to call an ambulance
at about 12:00 am. Additionally, that he did not see any other
injuries on the deceased. On the contrary, CW 1 deposed that
PW 1 had applied Dettol to the wounds of the deceased. Contrary
to the statement of PW-1, his brother, PW-2 deposed that he was
woken up at about 2-3 a.m. by the appellant who was crying and
told him that her husband had suffered head injury. The deceased
is then stated to have himself told the witness that the injury was
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not serious. The contradiction in the evidence of PW-1 and PW-
2 is further compounded by the third brother PW-3, deposing
that PW-2 informed him of the injury to the deceased at 12.00
am. All the three witnesses have deposed that the deceased was
of heavy built, because of which they were unable to take him to
the hospital on the motor cycle, for treatment. The post mortem
however recites that the deceased was of average built. If the
deceased had merely suffered a head injury by fall and was
otherwise fit to talk to the witnesses, there is no reason why he
could not have been taken to the hospital on a motorcycle. While
PW-3 states that the deceased was wearing clothes, the post-
mortem report shows that the deceased was brought in an
underwear only. The clothes of the deceased were found near
the well in a gunny bag. But PW-7 did not consider it necessary
to have the blood group examined by the FSL, which in the facts
of the case is a major lapse. [Para 10-11][1115-D-H; 1116-A]
2.4 The post mortem report makes it evident that the chop
wounds could not have been caused by the small knife alleged to
have been recovered. Fracture of the temporal bone with the
knife was an impossibility. PW-6 in the deposition ruled out that
the injury could be caused by a fall. The post mortem did not find
any alcohol in the body of the deceased. The witness also opined
that injury no. 4 could have been caused while the deceased
may
have attempted to save himself from assault. The multiple injuries
could certainly not have been caused by one person and tells an
entirely different story by itself that the assailants may have been
more than one. The chop injuries were possible by a moderate
and heavy weapon like a dao. If the deceased was of average
built, it is difficult to accept, according to normal prudence and
human behaviour and capacity, that the appellant being a woman,
could have made such severe and repeated assault on the
deceased, who was her husband, with a small knife, without any
resistance and suffered no injury herself. PW-2 acknowledged in
his evidence that he would have drinks with the deceased.
According to the post-mortem report, the stomach of the deceased
was found empty, suggesting that the assault had taken place
earlier in the evening contrary to the evidence of PWs. 1, 2 and 3
suggesting the assault in the late hours of the night by which
time the deceased would undoubtedly have had his dinner.
[Para 12,15][1116-B-D; 1117-F-G]
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2.5 Section 313, Cr.P.C. cannot be seen simply as a part of
audi alteram partem. It confers a valuable right upon an accused
to establish his innocence and can well be considered beyond a
statutory right as a constitutional right to a fair trial under Article
21 of the Constitution, even if it is not to be considered as a
piece of substantive evidence, not being on oath under Section
313(2) Cr.P.C. If the accused takes a defence after the
prosecution evidence is closed, under Section 313(1)(b) Cr.P.C.
the Court is duty bound under Section 313(4) Cr.P.C. to consider
the same. The mere use of the word ‘may’ cannot be held to
confer a discretionary power on the court to consider or not to
consider such defence, since it constitutes a valuable right of an
accused for access to justice, and the likelihood of the prejudice
that may be caused thereby. Whether the defence is acceptable
or not and whether it is compatible or incompatible with the
evidence available is an entirely different matter. If there has
been no consideration at all of the defence taken u/s. 313 Cr.P.C.,
in the given facts of a case, the conviction may well stand vitiated.
A solemn duty is cast on the court in dispensation of justice to
adequately consider the defence of the accused taken u/s.313
and to either accept or reject the same for reasons specified in
writing. Unfortunately neither trial court nor the High Court
considered it necessary to take notice of, much less discuss or
observe with regard to the said defence by the appellant u/s.313
to either accept or reject it. The defence taken cannot be said to
be irrelevant, illogical or fanciful in the entirety of the facts and
the nature of other evidence available. The complete non-
consideration thereof has clearly caused prejudice to the appellant.
Unlike the prosecution, the accused is not required to establish
the defence beyond all reasonable doubt. The accused has only
to raise doubts on a preponderance of probability. [Para 16, 17]
[1117-G-H; 1118-A-E]
Hate Singh Bhagat Singh v. State of Madhya Bharat
AIR 1953 SC 468; M. Abbas vs. State of Kerala (2001)
10 SCC 103 – referred to.
Case Law Reference
[1960] 2 SCR 460
referred to
Para 7
AIR 1953 SC 468
referred to
Para 17
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(2001) 10 SCC 103
referred to
Para 17
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1330 of 2018
From the Judgment and Order dated 09.02.2017 of the High Court
of  Gauhati at Gauhati in Crl. Appeal (J) No. 130 of 2014.
Shri Singh, Ms. Sayali Kadu, Ms. Varsha Poddar, Ms. Supriya
Juneja, Advs. for the Appellant.
Ms. Diksha Rai, Ms. Palak Mahajan, Advs. for the Respondent.
The Judgment of the Court was delivered by
NAVIN SINHA, J. 1. Leave granted.
2. The appellant is the wife of the deceased convicted under Section
302 I.P.C. and sentenced to life imprisonment with fine of Rs.1,000/-
and in default, imprisonment for one month.
3. The deceased resided along with the appellant and his minor
daughter CW-1, Miss Puja Hazarika, aged about 9 years, in the tenanted
premises belonging to PW-1 Manoj Kumar Deka, PW-2 Dipen Deka
and PW-3 Bhrigumoni Deka, who are brothers.  The appellant is stated
to have assaulted the deceased in the intervening night of 10.05.2013/
11.05.2013. PWs. 1, 2 and 3 are stated to have heard noises and on
going there, found the deceased with head injury attributed to a fall, but
that the deceased was otherwise alright.  They were unable to take him
to the hospital because of rains and the unavailability of an ambulance.
According to the post-mortem report proved by PW-6, Dr. Ritu Raj
Chaliha the deceased had the following injuries on his person :-
(i)       Chop wound of size 11 cm x 2 cm x
muscle deep present on
left side of cheek 6 cm medial tragus and 1 cm above angle
of mandible.
(ii)     Chop wound of size 9 cm x 2 cm x muscle deep present
back of occipital region.
(iii)     Chop wound of size 4 cm x 2 cm x muscle deep present on
left side of forearm.
(iv)      Laceration of size (5 x 4) cm present over left wrist joint on
posterior aspect.
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(v)       Chop wound of size (4 x 1) cm x muscle deep, present over
temporal region on right side.
(vi)     Chop wound of size (6 x 2) cm of muscle deep present over
back of scapula.
(vii)    Fracture of temporal bone on both sides.
All injuries were ante mortem and caused by moderately heavy
sharp cutting weapon and homicidal in nature.
4. The Trial Court and the High Court held that the present was a
case of circumstantial evidence.  The last seen theory establishes the
presence of the appellant with the deceased at night. Her unnatural
conduct because she was not crying, she was the assailant of the
deceased.
5. Mr. Singh, learned counsel for the appellant submitted that the
courts below have erred in holding that the links in the chain of
circumstances stood established leading to the only inescapable conclusion
of the appellant being the assailant and no other hypothesis of innocence
being possible.  PW-6 has deposed that the injuries were caused by a
moderately heavy sharp cutting weapon such as a dao, and that the
fracture of the temporal bone may have been caused by a moderate
heavy weapon.  The recovery from the place of occurrence, as proved
by PW-7 S.I. Nilomani Malakar, is of an ordinary knife used for cutting
betel nut, one feet long with a bent sharp point.  Chop injuries were not
possible with the same.  The alleged knife was not even shown to PW-6
for eliciting opinion if the injuries could have been caused by the same.
6. Miss Diksha
Rai, learned counsel for the State submitted that
the appellant was last seen with the deceased in the room, confirmed by
CW-1. The appellant has failed to offer any explanation of the
circumstances as to how the death occurred at night.  Her unnatural
conduct in not even weeping was also noticed by PW-7.  The knife used
for assault, and blood soaked clothes of the deceased have also been
recovered.
7. We have considered the respective submissions, the orders of
the courts below, as also the evidence available on record.  Normally
this court under Article 136 of the Constitution, would be reluctant in
appeal to interfere with the concurrent findings of two courts by
reappreciating the facts and evidence. But in an appropriate case, if this
REENA HAZARIKA v. STATE OF ASSAM
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court finds that there has been erroneous consideration and appreciation
of facts and evidence, leading to miscarriage of justice, this court is duty
bound to ensure that ultimately justice prevails. It is a well established
principle of criminal jurisprudence that several accused may go free, but
an innocent person should not be punished. In Anant Chintaman Lagu
v. State of Bombay, (1960) 2 SCR 460 this court observed as follows :-
“16. Ordinarily, it is not the practice of this Court to re-examine
the findings of fact reached by the High Court particularly in a
case where there is concurrence of opinion between the two
Courts below. But the case against the appellant is entirely based
on circumstantial evidence, and there is no direct evidence that
he administered a poison, and no poison has, in fact been detected
by the doctor, who performed the post-mortem examination, or
by the Chemical Analyser. The inference of guilt having been
drawn on an examination of a mass of evidence during which
subsidiary findings were given by the two Courts below, we have
felt it necessary, in view of the extraordinary nature of this case,
to satisfy ourselves whether each conclusion on the separate
aspects of the case, is supported by evidence and is just and proper.
Ordinarily, this Court is not required to enter into an elaborate
examination of the evidence, but we have departed from this rule
in this particular case, in view
of the variety of arguments that
were addressed to us and the evidence of conduct which the
appellant has sought to explain away on hypotheses suggesting
innocence. These arguments, as we have stated in brief, covered
both the factual as well as the medical aspects of the case, and
have necessitated a close examination of the evidence once again,
so that we may be in a position to say what are the facts found, on
which our decision is rested.”
8. The essentials of circumstantial evidence stand well established
by precedents and we do not consider it necessary to reiterate the same
and burden the order unnecessarily. Suffice it to observe that in a case
of circumstantial evidence the prosecution is required to establish the
continuity in the links of the chain of circumstances, so as to lead to the
only and inescapable conclusion of the accused being the assailant,
inconsistent or incompatible with the possibility of any other hypothesis
compatible with the innocence of the accused.  Mere invocation of the
last seen theory, sans the facts and evidence in a case, will not suffice to
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shift the onus upon the accused under Section 106 of the Evidence
Act,1872 unless the prosecution first establishes a prima facie case.  If
the links in the chain of circumstances itself are not complete, and the
prosecution is unable to establish a prima facie case, leaving open the
possibility that the occurrence may have taken place in some other
manner, the onus will not shift to the accused, and the benefit of doubt
will have to be given.
9. Before proceeding with the discussion further, we deem it proper
to notice that the appellant did not have the benefit of a lawyer of her
choice, both before the trial court and the High Court, naturally because
of some handicap.  She had to be provided legal assistance by the Legal
Services Authority.  This is not to make any comment or observation on
the nature of the defence made available to the appellant, but only to
notice her handicap in establishing her innocence.
10. PW-1 deposed that he was told by the deceased at about
11:00 p.m. on 10.05.2013 that he had suffered a head injury because of
a fall, and that the witness did not provide any first aid to the deceased
though he along with his brother PW-2, did try to call an ambulance at
about 12:00 am.  Additionally, that he did not see any other injuries on the
deceased.  On the contrary, CW-1 deposed that PW-1 had applied Dettol
to the wounds of the deceased.
11. Contrary to the statement of PW-1, his brother, PW-2 deposed
that he was woken up at about
2-3 a.m. by the appellant who was crying
and told him that her husband had suffered head injury.  The deceased is
then stated to have himself told the witness that the injury was not serious.
The contradiction in the evidence of PW-1 and PW-2 is further
compounded by the third brother PW-3, deposing that PW-2 informed
him of the injury to the deceased at 12.00 am.  All the three witnesses
have deposed that the deceased was of heavy built, because of which
they were unable to take him to the hospital on the motor-cycle, for
treatment. The post mortem however recites that the deceased was of
average built.  If the deceased had merely suffered a head injury by fall
and was otherwise fit to talk to the witnesses, we see no reason why he
could not have been taken to the hospital on a motorcycle.  While PW-
3 states that the deceased was wearing clothes, the post-mortem report
shows that the deceased was brought in an underwear only.  The clothes
of the deceased were found near the well in a gunny bag.  But PW-7 did
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not consider it necessary to have the blood group examined by the FSL,
which in our opinion in the facts of the case is a major lapse.
12. The post-mortem report makes it evident that the chop wounds
could not have been caused by the small knife alleged to have been
recovered. Fracture of the temporal bone with the knife was an
impossibility. PW-6 in the deposition ruled out that the injury could be
caused by a fall.  The post mortem did not find any alcohol in the body of
the deceased.  The witness also opined that injury no. 4 could have been
caused while the deceased may have attempted to save himself from
assault.  The multiple injuries could certainly not have been caused by
one person and tells an entirely different story by itself that the assailants
may have been more than one. The chop injuries were possible by a
moderate and heavy weapon like a dao. In our opinion also, if the
deceased was of average built, it is difficult to accept, according to normal
prudence and human behaviour and capacity, that the appellant being a
woman, could have made such severe and repeated assault on the
deceased, who was her husband, with a small knife, without any resistance
and suffered no injury herself.
13. PW-7 claimed to have found a knife with the smell of Dettol.
Even if the knife had been wiped to erase traces of blood the wooden
handle could have revealed much if it had been sent to the FSL. The
witness again
offers no explanation why he did not do so.  No bottle of
Dettol has been recovered.  There is absolutely no evidence that the
deceased would often assault the appellant and the minor child in a
drunken condition.  The fact that PW-7 did not notice tears in the eyes
of the appellant, deemed as unnatural conduct by the courts below, cannot
be sufficient to draw an adverse inference of guilt against the appellant.
The appellant being in a helpless situation may have been stunned into a
shock of disbelief by the death of her husband. It is not uncommon
human behaviour that on the death of a near relative, or upon witnessing
a murderous assault, a person goes into complete silence and stupor
showing no reaction or sensibility.  We also find it difficult to believe and
rely upon the evidence of CW-1 primarily because of her minority. If the
deceased had been assaulted by the appellant in the room at night, it
would certainly have led to noise and shouts and the witness could not
have possibly slept throughout without waking up.
14. PW-1 deposed that he informed the police the next morning at
about 8:00 a.m.  But PW-7 has deposed that information was given at
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the police station by PW-1 at about 12:00 p.m. on 11.05.2013 and the
General Diary entry no. 452 made in the police station at 12.20 p.m., and
the F.I.R. registered at 7:45 p.m.  These are suspicious circumstances
which leaves enough time for planning after thinking for the manner in
which allegations were to be made for deflecting that the occurrence
took place in a manner other than what may have happened actually.
15. In the background of the aforesaid discussion regarding the
nature of evidence and the manner of its appreciation, we deem it proper
to set out the English translation in the paper book of defence taken by
the appellant under Section 313 Cr.P.C. as follows:-
“Ans: On the date of occurrence at about 8-8:30 while I have
returned from my work at Satgaon, I saw that my husband was
lying in the room with bleeding injury.  On my cry, Manoj Deka
and his brothers come there with drink in the hand of one brother.
Thereafter I saw Manoj Deka was putting Dettol on the wound
of my husband.  I also rang to 108 ambulance.  When, I wanted to
call police Manoj Deka, snatched the phone from me.  On my
crying neighbouring peoples arrived there.  I tried to take my
husband to medical but due to non-co-operation my Manoj Deka
and others, I failed to take him to Medical.  On that night at about
9.30 expired and Manoj Deka and other neighbours were sitting.
Subsequently Manoj Deka has falsely implicated me.  I have the
suspicion that my husband was physically
assaulted earlier at some
place by Mintu Nath, Dipak Das and Jeetu Deka while taking
liquor and brought by husband on injured condition and laid in the
room.  I also saw the lock of my room in broken condition, when
I arrived here.  I have not killed my husband.  I am innocent.”
PW-2 has acknowledged in his evidence that he would have drinks with
the deceased.   According to the post-mortem report, the stomach of the
deceased was found empty, suggesting that the assault had taken place
earlier in the evening contrary to the evidence of PWs. 1, 2 and 3
suggesting the assault in the late hours of the night by which time the
deceased would undoubtedly have had his dinner.
16. Section 313, Cr.P.C. cannot be seen simply as a part of audi
alteram partem.  It confers a valuable right upon an accused to establish
his innocence and can well be considered beyond a statutory right as a
constitutional right to a fair trial under Article 21 of the Constitution,
even if it is not to be considered as a piece of substantive evidence, not
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being on oath under Section 313(2), Cr.P.C.  The importance of this right
has been considered time and again by this court, but it yet remains to be
applied in practice as we shall see presently in the discussion to follow.
If the accused takes a defence after the prosecution evidence is closed,
under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section
313(4) Cr.P.C. to consider the same.  The mere use of the word ‘may’
cannot be held to confer a discretionary power on the court to consider
or not to consider such defence, since it constitutes a valuable right of an
accused for access to justice, and the likelihood of the prejudice that
may be caused thereby.  Whether the defence is acceptable or not and
whether it is compatible or incompatible with the evidence available is
an entirely different matter.  If there has been no consideration at all of
the defence taken under Section 313 Cr.P.C., in the given facts of a
case, the conviction may well stand vitiated.  To our mind, a solemn duty
is cast on the court in dispensation of justice to adequately consider the
defence of the accused taken under Section 313 Cr.P.C. and to either
accept or reject the same for reasons specified in writing.
17. Unfortunately neither Trial Court nor the High Court considered
it necessary to take notice of, much less discuss or observe with regard
to the aforesaid defence by the appellant under Section 313 Cr.P.C. to
either accept or reject it.  The defence taken cannot be said to be
irrelevant, illogical or fanciful in the entirety of the facts and the nature
of other evidence available as discussed hereinbefore. The complete
non-consideration thereof has clearly caused prejudice to the appellant.
Unlike the prosecution, the accused is not required to establish the defence
beyond all reasonable doubt. The accused has only to raise doubts on a
preponderance of probability as observed in Hate Singh Bhagat Singh
vs. State of Madhya Bharat, AIR 1953 SC 468 observing as follows :-
“26. We have examined the evidence at length in this case, not
because it is our desire to depart from our usual practice of
declining to the assess, the evidence in an appeal here, but because
there has been in this case a departure from the rule that when an
accused person but for the word a reasonable defence which is
likely to be true,…… then the burden on the other side becomes
all the heavier because a reasonable and probable story likely to
be true friend pitted against AV and vacillating case is bound to
raise a reasonable doubts of which the accused must get the
benefit….”
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A similar view is expressed in M. Abbas vs. State of Kerala, (2001) 10
SCC 103 as follows :-
“10….On the other hand, the explanation given by the appellant
both during the cross-examination of prosecution witnesses and
in his own statement recorded under Section 313 CrPC is quite
plausible. Where an accused sets up a defence or offers an
explanation, it is well settled that he is not required to prove his
defence beyond a reasonable doubt but only by preponderance of
probabilities….”
18. The entirety of the discussion, in the facts and circumstances
of the case, the nature of evidence available coupled with the manner of
its consideration, leaves us satisfied that the links in the chain of
circumstances in a case of circumstantial evidence, cannot be said to
have been established leading to the inescapable conclusion that the
appellant was the assailant of the deceased, incompatible with any
possibility of innocence of the appellant. The possibility that the
occurrence may have taken place in some other manner cannot be
completely ruled out.  The appellant is therefore held entitled to acquittal
on the benefit of doubt.  We accordingly order the acquittal and release
of the appellant from custody forthwith, unless wanted in any other case.
19. The appeal is allowed.
Nidhi Jain
                                 Appeal allowed.
REENA HAZARIKA v. STATE OF ASSAM
[NAVIN SINHA, J.]