STATE OF MADHYA PRADESH

SANJAY RAI

MARCH 2), 2004

[DORAISWAMY RAJU AND ARIJIT PASA YAT, JJ.}

Penal Code, I 860-Section 3048-Death of wife-Trial Court convicting the husband for strangulation of deceased, by referring to certain opinions C of specialist authors on medical jurisprudence-High Court acquitting the accused after re-appreciating the evidences-Correctness of-Held, the opinion of specialist authors cannot be considered to be authoritatively binding and elevated on higher pedestal than the opinion of an expert examined in Court- High Court is right in re-appreciation of evidence to prevent miscarriage of justice.

D For the death of the Respondent's wife, the respondent and his parents were charged with offences punishable under sections 302, 3048 and 201 IPC. The trial court acquitted the parents of the respondent and convicted the respondent under section 3048 IPC. In appeal by the State, High Court acquitted the respondent on the ground that the circumstantial E evidences were not sufficient to establish the guilt of the accused.

In appeal to this Court, the State contended that the trial court had analysed the evidence in its proper perspective and held the respondent guilty.

F The respondent contended that as the trial court had proceeded on

) ..

surmises and conjectures, the High Court was justified in directing !' acquittal.

Dismissing the appeal, the Court

G HELD: I.I. Where a case rests squarely on circumstantial evidence,

the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved

STA TE OF M.P. v. SAN.IAY RAI 561

beyond reasonable doubt and have to be shown to be closely connected A with the principal fact sought to be inferred from those circumstances.

1565-B-DI

Hukam Singh v. Slate of Rajasthan, AIR (1977) SC 1063; Eradu and Ors. v. State of Hyderabad, AIR (1956) SC 316; Earabhadrappa v. State of Karnataka, AIR (1983) SC 446; State of UP. v. Sukhbasi and Ors., AIR B

(1987) SC 350; Ba/winder Singh v. State of Punjab, AIR (1987) SC 350; Ashok Kumar Challerjee v. State of MP., AIR (1989) ~C 1890; Bhagat Ram.

v. State of Punjab, AIR (1954) SC 621; C. Chenga Reddy and Ors. v. State of A.P., [1996[ 10 SCC 193; Pada/a Veera Reddy v. State of A.P. and Ors., AIR (1990) SC 79; State of U.P. v. Ashok Kumar Srivastava, [1992] Crl. L.J. C 1104; Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, AIR (1952) SC 343 and Sharad Birdhichand Sardo v. State of Maharashtra, AIR (1984) SC 1622, referred to.

Circumstantial Evidence by Sir Alfred Wills, referred to.

D 1.2. The only circumstance which the Trial Court relied upon to hold guilt of the respondent was by referring to some text books on medical jurisprudence. With reference to them it was held that case of strangulation was clearly made out. It cannot be said that the opinions of these authors were given in regard to circumstances exactly similar to those which arose in this case. This is not a satisfactory way of dealing E with or disposing of the evidence of an expert examined in this case unless the passages which are sought to be relied to discredit his opinion are put to him. Though opinions expressed in text books by specialist authors may be of considerable assistance and importance for the Court in arriving at the truth, they cannot always be treated or viewed to be either conclusive F or final as to what such author says to deprive even a Court of law to come to an appropriate conclusion of its own on the peculiar facts proved in a given case. In substance, though such views may have persuasive value, they cannot always be considered to be authoritatively binding, even to dispense with the actual proof otherwise reasonably required of the guilt of the accused in a given case. Such opinions cannot be elevated to or G placed on higher pedestal than the opinion of an expert examined in Court and the weight ordinarily to which it may be entitled to or deserves to be given. 1568-A-EI

Sunder/al v. The State of Madhya Pradesh, AIR (1954) SC 28 and Bhagwan Das and Anr. v. State of Rajasthan, AIR (1957) SC 589, referred H

A to.

1.3. Even if on the hypothetical basis it is held that doubt could arise on the basis of strangulation, in the absence of any evidence whatsoever to connect the respondent-accused with the act of strangulation, the conclusions of the Trial Court could not have been maintained and the B High Court which is entitled to re-appreciate the evidence could and has rightly discarded it. 1568-E-Fi

1.4. There is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order C of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The D paramount consideration of the Court is to ensure that miscarriage' of justice is prevented. No doubt a miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of E the accused really committed any offence or not. The principle to be followed by Appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so in order to prevent miscarriage of justice resulting therefrom. If the impugned judgment is clearly unreasonable and relevant p and convincing materials have been unjustifiably liminated in the process, it would be a compelling reason for interference. No such error can be said to have been committed by the High Court, nor any other infirmity to undermibe the legality and propriety of the findings of the High Court,· warranting interference of this Court has been substantiated in this case.

[568-G-H; 569-A-E)

Bhagwan Singh and Ors. v. State of Madhya Pradesh, [2002) 2 SCC 567; Shivaji Sahebrao Bobade and Anr. v. State of Maharashtra, AIR (1973) SC 2622; Ramesh Babula/ Doshi v. State of Gujarat, [1996) 4 SCC 167; Jaswqnt Singh v. State of Haryana, (2000) 3 SCC 320; Raj Kishore J_ha v.

H State of Bihar and Ors., 12003) 7 SCC 152; State of Punjab v. Karnail Singh,

__,(/

STATEOFMP v.SAN.IAYRAI [PASAYAl . .I.] 563

120031 5 SCC 508; State of Punjab v. Pohla Singh and Anr .. 120031 7 A Supreme 17 and Suchand Pal v. Phani Pal and Anr., JT (2003) 9 SC 17, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 641 of 1998.

From the Judgment and Order dated 20.3.97 of the Madhya Pradesh High Court in Cr!. A. No. 72 of 1993.

Siddhartha Dave and Ms. Kamadshi and S. Mehlwal for the Appellants.

Sushi! Kumar, Adolf Mathew, Sanjay Jain, Vinay Arora and A.K. Sanghi C for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. State of Madhya Pradesh calls in question legality of the judgment rendered by a Division Bench of the Madhya Pradesh D High Court directing acquittal of the respondent by upsetting judgment of conviction recorded by the Trial Court. The Trial Court found the respondent (hereinafter referred to as 'the accused') guilty of offences punishable under Section 302 of Indian Penal Code, 1860 '(in short 'the !PC') and sentenced to undergo life imprisonment and a fine of Rs. 200 in addition to sentence E of three years RI imposed for offence punishable under Section 201 !PC and fine of Rs. 200 with default stipulation for fines.

Prosecution version in a nutshell is as follows:

Anita Bai (hereinafter referred to as the 'deceased') was married to the F accused on 14.12.1990 at Allahabad (U.P.) whereafter she came to Dhanpuri along with the accused on 15.12.1990. Anita Bai died on 25.12.1990 at Dhanpuri in her room in their house. Written report about the incident (Ex.P-

14) was lodged by the accused at P.S. Amlai, District Shahdol on 25.12.1990 at about 11.40 p.m. It was reported in Ex.P-14 by accused Sanjay Rai that he had gone to the house of one Rajendra Sharma and had returned from G there at about 9.00 p.m. and went to his room. The room was bolted from inside. On being pushed, the latch fell down and the door opened. He found that his wife, deceased, was hanging from the bolt of the almirah, upon which he caught hold of her by the waist and called his father, who cut the piece of cloth by which she was hanging. Thereafter, Dr. Gautam (PW-I) and Dr. Pathak (PW-2) were called, who advised them to take Anita to the hospital H

A where she was declared dead. On the basis of the above report, FIR (Ex.P-

15) was recorded. Inquest report was made and dead body was sent for postmortem examination which was conducted by two doctors (PW-6 and PW-

12). Four injuries were found on the dead body of the deceased.

The investigating officer made a query from the doctor as to whether B in case of hanging, ligature marks may be absent. The doctor gave opinion that even in case of hanging ligature marks may be absent and the presence of ligature marks would depend upon the nature of ligature and the time for hanging. It was also found that asphyxia could have resulted even if the body was hanging by a piece of cloth which was cut immediately after the hanging.

C During investigation, it came to light that the respondent-accused and his parents who also faced trial with the accused were treating the deceased with cruelty on account of unfulfilled demand of dowry. Initially, the investigation started on the background of offence relatable to Section 306 read with Section 34 !PC. On completion of investigation, charge sheet was placed and the respondent-accused and his parents faced trial. They pleaded innocence.

The accused persons faced trial for alleged commission of offences punishable under Sections 302, 3048 and 20 I IPC. All the three accused persons including respondent were found not guilty of offences relatable to Sections 302 and 20 I IPC. The parents of the respondent were also found to be not guilty of offence relatable to Section 302 !PC. So far as respond1nt

is concerned, the conviction was made, as afore-noted and sentences imposed.

An appeal was preferred by the State before the High Court which by the impugned judgment held the respondent-accused to be not guilty. It was found that the case was based merely on circumstantial evidence and there F was no clinching material to substantiate all or any of the continuous link of incriminating circumstances and show that the respondent was guilty of the alleged offences. Several factors were taken note of. Firstly, the respondentaccused and his father immediately after the occurrence called the doctors PW-I and PW-2. There was no motive for killing as the alleged demand of dowry was not established and for that reason the Trial Court itself had G directed acquittal of the accused persons from the allegations relatable to

Section 3048. The High Court also noted that there was no evidence of any strangulation, as was held to have been done by the respondent-accused. The Trial .Court wile discarding the evidence of the doctor referred to some authorities to discard the evidence of the doctor. Holdi!.ig the evidence to be H not sufficient to fasten the guilt on the accused, acquittal was directed.

)._

STATEOFM.P. v.SANJAYRAI (PASAYAT,.I.] 565

In support of the appeal, learned counsel for the appellant-State submitted A that the Trial Court had analysed the evidence in its proper perspective and had held the accused to be guilty. The High Court was not justified in holding that the circumstances were not sufficient to establish guilt of the accused.

The circumstances presented unerringly pointed out at the guilt of the accused.

In response, Mr. Sushi! Kumar, learned senior advocate for the B respondent submitted that the Trial Court had proceeded on surmises and conjectures and, therefore, the High Court was justified in directing acquittal.

It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified C only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, AIR (1977) SC 1063; Eradu and Ors. v. State of Hyderabad, AIR (1956) SC 316; Earabhadrappa v. State of Karnataka, AIR (1983) SC 446; State of U.P. v. Sukhbasi and Ors., AIR

(1985) SC 1224; Ba/winder Singh v. State of Punjab, AIR (1987) SC 350; D Ashok Kumar Chatterjee v. State of M. P., AIR (1989) SC 1890. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR (1954) SC 621, it was E laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

We may also make a reference to a decision of this Court in C. F Chenga Reddy and Ors. v. State of A.P., (1996] IO SCC 193, wherein it has been observed thus:

"In a case based on circumstantial evidence, the settled law is that the circumstanc.es from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in G nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence .... ".

In Padala Veera Reddy v. State of A.P. and Ors., AIR (1990) SC 79, H

A it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(I) 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 C else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent D with his innocence.

In Stale of UP. v. Ashok Kumar Srivastava, ( 1992) Cr!. L.J. 1104, it was pointed out that great care must be taken in evaluating circumstantial evidence and ifthe evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out E that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the F case of circumstantial evidence: ( l) the facts alleged as the basis of any legal

inference must be clearly proved and beyond reasonable doubt connected "' with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence G must be adduced which the nature of the case admits; ( 4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".

H There is no doubt that conviction can be based solely on circumstantial

STATE OF M.P. v. SAN.JAY RAI [PASAYAT, .I.] 567

evidence but it should be tested by the touch-stone of law relating to A circumstantial evidence laid down by the this Court as far back as in 1952.

In Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, AIR (1952) SC 343, wherein it was observed thus:

"It is well to remember that in cases where the evidence is of a B 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 C 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."

A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, AIR (1984) SC 1622. Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot merely be cured by false defence or plea. The conditions precedent in

the words of this Court, before conviction could be based on circumstantial E evidence, must be fully established. They 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 accl.tSed is guilty;

(3) the circumstances should be of a conclusive nature and tendency; G

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so compete as not.to leave any reasonable ground for the conclusion consistent with the innocence H

)- ~

A of the accused and must show that in all human probability the act must have been done by the accused.

The only circumstance which the Trial Court relied upon to hold guilt was by referring to some text books on medical jurisprudence. With reference to them it was held that case of strangulation was clearly made out.

B It cannot be said that the opinions of these authors were given in regard to circumstances exactly similar to those which arose in the case now before us nor is this a satisfactory way of dealing with or disposing of the evidence of an expert examined in this case unless the passages which are sought to c be relied to discredit his opinion are put to him. This Court in Sunder/al v.

The State of Madhya Pradesh, AIR (1954) SC 28, disapproved of Judges drawing conclusions adverse to the accused by relying upon such passages in the absence of their being put to medical witnesses. Similar view was

l: expressed in Bhagwan Das and Anr. v. State of Rajasthan, AIR (1957) SC

589. Though opinions expressed in text books by specialist authors may be D of considerable assistance and importance for the Court in arriving at the truth, cannot always be treated or viewed to be either conclusive or final as to what such author says to deprive even a Court of law to come to an appropriate conclusion of its own on the peculiar facts proved in a given ~

case. In substance, though such views may have persuasive value cannot

E always be considered to be authoritatively binding, even to dispense with the actual proof otherwise reasonably required of the guilt of the accused in a given case. Such opinions cannot be elevated to or placed on higher pedestal than the opinion of an expert examined in Court and the weight ordinarily to which it may be entitled to or deserves to be given.

F Apart from that, even if on the hypothetical basis it is held that doubt could arise on the basis of strangulation, in the absence of any evidence whatsoever to connect the respondent-accused with the act of strangulation,

~ ,__

the conclusions of the Trial Court could not have been maintained and the High Court which is entitled to re-appreciate the evidence could and has rightly discarded it.

G There is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the

.>, accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two H views are possible on the evidence adduced in the case, one pointing to the

STATE OF M.P. v. SAN.JAY RA! [PASAYAT, J.] 569

guilt of the accused and the other to his innocence, the view which is A favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. No doubt a miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence B where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan Singh and Ors. v. State of Madhya Pradesh, (2002) 2 Supreme 567). The principle to be followed by Appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so in order to prevent miscarriage of justice C resulting therefrom. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it would be a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahebrao Bobade and Anr. v. State of Maharashtra, AIR (1973) SC 2622, Ramesh Babula/ Doshi v. State of Gujarat,

(1996) 4 Supreme 167, Jaswant Singh v. State of Haryana, (2000) 3 Supreme D 320), Raj Kishore Jha v. State of Bihar and Ors., (2003) 7 Supreme 152, State of Punjab v. Kamai/ Singh, (2003) 5 Supreme 508, State of Punjab v.

Poh/a Singh and Anr., (2003) 7 Supreme 17 and Suchand Pal v. Phani Pal and Anr., JT (2003) 9 SC 17. In our view no such error can be said to have been committed by the High Court, nor any other infirmity to undermine the E legality and propriety of the findings of the High Court, warranting our interference has been substantiated, in this case.

The inevitable result of this appeal is dismissal, which we direct.

B.S.

Appeal dismissed. p