SUDAMA PANDEY AND ORS.

STATE OF BIHAR

DECEMBER. 5, 2001

[UMESH C. BANERJEE AND KG. BALAKRISHNAN, JJ.]

Criminal Trial-Cirl'utnstantial evidence--Conviction on basis of-· Circumstances should be such as to .form a chain leading to i1iference f the guilt f the accused.

Constitwion of India, 1950-Arllcle 136 :

Concurrent . .findin{?s <ffacts---Nornu1lly not inte(fered }Vith-Houever could be interfered ivith when there is subsrantia~ n1iscarriage of justice.

Reappraisal o.f evidence-Not nonna/ly done-But could be resorted to D

\hen assessn1ent o.f evidence is viliated by error of lcnv or procedure or if I here is 111isreading <f evidence.

Appellants allegedly caused the death of 12 years old girl. Trial Court, relying upon various circumstantial evidence, found the appellants E guilty and sentenced them to death, High Court confirmed the conviction but commuted the death penalty to imprisonment for life. Hence the present appeal.

Allowing the appeals, the Court

HELD : I. The various circumstances relied on by the Trial Court and the High Court did not point to the guilt of the accused and there arc various circumstances which throw serions doubts that the victim mu., t

have died not in the manner alleged by the prosecution. Thus, the appellants could not be found guilty of the offence charged against them.[ 469-F] G

2. It is settled principle that in the case of circumstantial evidence, the various circumstances should form a chain pointing to the guilt of the accused. In cases where there is only circumstantial evidence, the Court has to consider the evidence adduced by the prosecution and decide whetlwr H

A the evidence proves particular facts relevant for the purpose of the case and when such facts are proved question arises whether the facts are capable of giving rise to any inference of the guilt of the accused person or not. An inference of guilt can be drawn only if the proved fact is wholly consistent with the guilt of the accused and if the proved fact is consistent B with his innocence he is entitled to benefit of doubt. [ 468-D-E]

Tanviben Panikaikumar Divdia v. State of Guiarat, [1997) 7 SCC 156 and Sharad Birdhichand Sarda v. State of Maharashtra, (1984] 4 SCC 116, referred to.

3. The entire evidence adduced by the prosecution only shows that the prosecution witnesses found the appellant; in the vicinty of the place where the dead body was found. Even if it is p.resumed that the appellants were found sitting together .or found walking oilong the road, that by itself is not an incriminating circumst:.lntial evidenc•e pointing to the guilt of the D accused unless it was very near to the scene of occurrence or that they were found in suspicious circumstanc•es. The evidence to the effect that some of the appellants teased the deceased is also not satisfactorily proved. Apart from this flimsy suspicion, there is no other evidence to connect the appel !ants to the crime. Further, the Investigating Officer could not lay his

. E hands on any incriminating material to connect the appellants to the crime, such as recovery of any "eapon allegedly used by them for commit ting crime or any blood stainef!, clothes worn by them which would have been of some assistance to prow the guilt of the appellants. The appellants were arrested immediately after the incident. None of them had injuries on

F their body. It is also suspicious whether the incident itself had occurred in the places alleged. The Investigating Officer deposed that he did not D1; tice in the mahazar that there were foot marks or the trampling of the plants near the &rea where the dead body was found. Further, the prosecution witnesses examined by the pr, lsecution were accused in other criminal cases whose evidence should have been considered by the trial court wiih G extreme care and caution. (472-C-F; 472-B]

4. Under Article 136 of the Constitution this court seldom interferes with the factual findings recorded by two. concurring Courts hut if this Court is satisfied that the High Court has committed a serious error of law H and that there was substantial miscarriag<: of justice, this court could

interfere with the concurring findings of the High Court and that of the A Trial Court. This Court also does not normally enter into a reappraisal or review of the evidence unless the assessment of the evidence by the High Court is vitiated by an error of law or procedure or there was misreading of evidence. [ 469-G-H]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 654- 655 of 2000.

From the Judgment and Order dated 28 .. 4.2000 of the Patna High Court in Cr!. A. No. 200 of 1999:

Sushi! Kumar, Rishi Malhotra and Prem Malhotra for the Appellants.

Saket Singh for B.B. Singh for the Respondent.

The Judgment of the Court was delivered by

K.G. BALAKRISHNAN, J. The five accused persons along with two others were tried by the Third Additional Sessions Judge of Bhojpur in Bihar.

The Sessions Court acquitted the other two accused persons and convicted these appellants for the offences punishable under Section 302 read with Section 34, Section 376/511 and Section 201/34 I.P.C. and sentenced all the appellants to death. On appeal, the Division Bench of the High Court of Bihar confirmed the conviction of all the five appellants, but commuted the death penalty to imprisonment for life.

The appellants were tried on the allegation that they had caused the death of a 12 years old girl by name Gudia Kumari. Gudia Kumari was a student of

Class Vllth. On 6.11.1996, at about 9.30 A.M., she left the house for the school but did not return home till evening. The members of her family started searching her but they could not find out her whereabouts, on that day. On the

next morning, PW!, Satendra Singh, the brother of Gudia Kumari came to G

know that her dead body was lying in the field of one Ravi Shankar Pandey.

PW9, the Sub-Inspector of Police also came to knoiv that the dead body was

lying in the field and he went there along with the Deputy Superintendent of Police. PW 8, Dadan Singh gave statement to the police and on the basis of

that statement, a case was registered against Bhushan Mahto, Madan Pandey H

. I

A and Bhuchai Mahto. PW9 conducted further investigation in the matter and

Inquest was held over the dead holy, and the dead body of Gudia Kumari was

sent for post-mortem examinatior.

PW-9 took statements of the witnesses and finally laid charge sheet B against seven accused persons. (In the prosecution side, 10 witnesses were

examined and on the defence sk e, 3 witnesses were examined. There is no

direct evidence to show as to how Gudia Kumari wa< done to death by the

assailants. The learned Sessions Judge relied on the various circumstantial

evidence and found these appella1ts guilty of the offences and the said finding C was confirmed by the High Cou t.

We heard Shri Sushi! Kumar, learned Senior Counsel for the appellants

and Mr. Saket Singh, learned Counsel on behalf of the State. On a careful

analysis of various items of evidence relied on in lhis case, we are of the view

that the Sessions Judge seriously flawed in coming to the conclusion that these

appellants were guilty of the offence of murder. It is a settled principle that in

the case of circumstantial evidei.ce, the various circumstances should be able to form a chain pointing to the g"ilt of the accused. In cases where there is only

circumstantial evidence, the Court has to consider the evidence adduced by the

prosecution and decide whether the evidence proves particular facts relevant

for the purpose of the ease and • vhcn such facts are proved the question arises

whether the facts are capable of giving rise to any inference of the guilt of the

accused person or not. An infer-nce of guilt can be drawn only if the proved

fact is wholly consistent with thr guilt of the accused and certainly he is entitled to the benefit of doubt if the p -ovcd fact is consistent with his innocence.

The law relating to circumstantial evidence, in clear and unmistakable

terms, has been laid down by this Court in various decisions and it is sufficienl

to quote statement of law made by this Court in Tanviben Pankcjktunar Divetia

v. State o.fGitiarat, [1997] 7 SCC 156:-

"The principle fo1 basing a conviction on the basis of circumstanK

tial evidence has been indicated in a number of decisions of this Court

and the law is well seltled that each and every incriminating circumstance must be clear!) established by reliable and clinching evidence

and the circumstancei so proved must fonn a chain of events from

which the only irresistible conclusion about the guilt of the accused A

can be safely drawn and no other hypothesis against the guilt is

possible. This Court has clearly sounded a note of caution that in a case

depending largely upon circumstantial evidence, there is always a

danger that conjecture or suspicion may take the place of legal proof.

The Court must satisfy itself that various circumstances in the chain B of events have been established clearly and such completed chain of

events must be such as to rule out a reasonable likelihood of the

innocence of the accused. It has also been indicated that when the

important link goes the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the

accused beyond all reasonable doubts. It has been held that the Court c

has to be watchful and avoid the danger of allowing. the suspicion to

take the place of legal proof for sometimes, unconsciously it may

happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and must be true" and the. same divides conjectures from sure conclusions."

These principles have been elaborately dealt with in Sharad Birdhidwnd

Sa11/a v. State of Maharashtra, [1984] 4 SCC 116 and in various other decisions and reference to such cases is not necessary.

In the instant case, it can be easily demonstrated that the various circumstan"ces relied on by the Sessions Court and the High Court did not point to the guilt of the accused and there are various circumstances which throw serious

doubts that Gudia Kumari must have met with her death, not in the manner F

alleged by the prosecution and these appellants cannot be found guilty of the offence charged against them. We arc not unmindful of the fact that this Court

under Article 136 of the Constitution seldom interferes with the factual findings recorded by two concurring Courts but if this Court is satisfied that the High

Court has committed a serious error of law and that there was substantial G miscarriage of justice, this Court could interfere with the concurring findings

of the High Court and that of the Trial Court. This Court also does not notmally

enter into a reappraisal or review of the evidence unless the assessment of the evidence by the High Court is vitiated by an error of law or procedure or there

was misreading of evidence.

A The dead body of Gu<lia K.ur1ari was found in the field of Ravi Shank:u

Pandey. On examination,. of tl1e de 1d body, the Doctor found that there were

series of injuries on the body. !lath the eyes were found disgorged and the nose

was chopped off and there was an ncised wound on the right >ide of the neck

and right carotid artery and vein 1<ere found cut. There were injuries on the B hands of the deceased also. The hymen was found entirely ruptured. The expert

opinion was to the effect that there was no indication that rape was committed

on her. The Doctor also noticed JO exam; nation of the dead body that the

digested food materials of about 3 onz were found in the stomach and was of

the opinion that the deceased mig11t have taken the meals 6 to 7 hours before c

the death.

The various incriminating c :rcumstances based on which the court drew

the inference of guilt of the accused are enumerated in paragraph 55 of the Judgment by the Sessions Judge. These are as follows:-

The accused persons have evil eye upon the deceased, moreover,

apart from this, ha; e got grudge.

On 6.11.96 at 9.30 A.M. when the deceased was proceeding

towards Karisath for attending class in a way, accused Bhuchai Mahato, Aasami @ Anil Deka and Anil Pandey were seen sitting E on-a ridge at P.O. field, lying by the side of way.

Gudiya, deceased was seen proceeding on that way, towards

Karisath.

Bhushan Mahato, Sudama Pandey and Kanhaiya were seen following her.

From the P/C fiel.l, Bhushan Mahato, Sudama Pandey, Madan Pandey, Bhuchai Mahala and Anil Deka were seen coming out.

Gudia had not all ended her school on 6.11.96.

They have been :cpprehended by the police on different dates.

On a bare perusal of the circumstances, it can easily be found that these

circumstances are not sufficienl to prove that these appellants are guilty. The

H evidence in support of these cir.:umstances is that of PW4 Ekram Singh, PW5

Suryadev Pandey, PW I Satendra Singh and PW8 Dadan Singh.

PW! is the brother of the deceased Gudia Kumari. He went in search of

Gudoa in the evening of 6.11.96. He could not trace out Gudia. He had gone

to the school where she was studying but the school was found closed. While

he was returning, he saw all the seven accused persons sitting together and

murmuring something and on seeing the witness, they maintained silence. He

had also deposed that one week before the death, his sister Gudia Kumari had told him that these seven accused persons had teased her. It is important to note

that PW!, when questioned by the Police, did not inform that the deceased was teased by the appellants a week prior to the incident. It is also important to note that this witness had also not informed the police that on the evening of 6.11.1996, he saw Anil Deka, Ramnath Pandey and Jhinur Pandey talking among themselves near the house of Balmiki Pandey. Even if it is assumed that he had seen the accused together, that by itself is not an incriminating circumstantial evidence unless it was very near to the scene of occurrence or that they were found in suspicious circumstances.

The evidence of PW-4 Ekram Singh was relied on by the Sessions Court.

It is alleged that he had seen all the five appellants herein at about lO'o clock in the morning coming from the field of Ravi Shankar Pandey. The witness has no case that they were found under suspicious circumstances. They had no weapons with them nor their clo.thes were blood stained. The witness has also no case that these appellants had shown any anxiety on seeing the witness. The Sessions Judge placed implicit reliance on PW4 on the assumption that these appellants were seen by PW4 immediately after the incident. It is important to note that Gudia Kumari must have taken food before she left for school and according to the evidence of the Doctor, the death must have happened about

6 to 7 hours after the consumption of the last meal. Therefore, even if it is assumed that PW4 had seen these appellants near the field of Ravi Shankar Pandey, it is not an incriminating circumstantial evidence, which would, in any way, advance the case of the prosecution.

Another witness is PW5 Suryadeo Pandey. He deposed that he had seen

Madan Pandey and Anil Deka sitting on the ridge near the field where the incident had taken place. He saw them at about 9.30 a.m. on 6.11.1996. He also

saw Gudia Kumari going to school and according to him, Sudama Pandey, Kanhaiya alias Jhingur Pandey and Bhushan Mahato were following her. It is H

SUPREME COUR''' REPORTS

[2001] SUPP. 5 S.C.R.

A important to note that PW5 Suryadec• Pandey did not stale before the Police that he had seen A nil Deka and Mad in Pandey sitting on the ridge. It is also

to be noticed that this witness was an accused in a criminal case where one

Nageshwar Pandey, the father's brolher of the accused Madan Pandey, had

been murdered. This witness was fou 1d guilty and was sentenced to imprison- B ment for life. Evidence of such a witness should have been considered by the

Court of Sessions with extreme care and caution. Jn this case, all the witnesses examined on the side of the prosecution had strong enmity towards the appel-

. !ants. Two persons were previously murdered and both of them were related to the appellants. PW5 and PW8 exa nined on the side of the prosecution were the accused in these criminal cases. c

The entire evidence adduced hy the prosecution would only go to show that the prosecution witnesses found these appellants in the vicinity of the place where the dead body was found. These appellants were not found under any suspicious circumstances. All the appellants belong to the same village. If they D were found sitting together or founj walking along the road, that by itself is not an incriminating circumstance pointingto the guilt of the accused. The evidence to tl1e effect that some of the appellants teased the deceased Gudia Kumari is also not satisfactorily pro 1ed. Apart from this !limsy suspicion, there is no evidence to connect these appellants to the crime. Had there been any E cogent and convincing item of e\i idcnce to connect these appellants to the crime, such as recovery of any weapons allegedly used by them for committing crime or any blood stained clothes worn by them, it would have been of some assistance to prove the guilt of the appellants. The Investigating Officer could not lay his hands on any such incriminating material. The appellants were

arrested inunediately after the incioent. None of them had any injuries on their body. It is also suspicious whether the incident itself had occurred in the field of Ravi Shankar Pandey. The In1 estigating Officer deposed that he did not notice in the mahazar that there w "e footmarks or the trampling of the plants near the area where the dead body was found. The learned Sessions Judge found the appellants guilty on fan< if ul reasons based purely on conjectures and surmises and it is unfortunate tha c the High Court also did not properly scan the evidence. It is all the more painful to note that the learned Sessions Judge, on the basis of the scanty, discreQi', nt and fragile evidence, found the appellants guilty and had chosen w impose capital punishment on the appellants.

H We are of the view that Sessions Court as well as the High Court

committed serious error in appreciating the circurnstantia1 evidence in this case A and it resulted in miscarriage of justice. Therefore, we are constrained to interfere with the finding of the High Court and hold that the prosecution failed to prove that the appellants had committed any of the offences charged against them. The appellants are found not guilty and they are acquitted of all the charges framed against them. They are directed to be released forthwith from B the jail, if their detention is not required in any other case.

The appeals are allowed accordingly.

NJ.

Appeals allowed.