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]
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 not serious. The contradiction in the evidence of PW-1 and PW2 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 postmortem 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]
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 nonconsideration 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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