Penal Code, 1860 – s. 302 r/w. s.34 – Acquittal under – Prosecution case that ‘S’ was tenant of an apartment on the second floor of a building owned by PW-3 – On 12.09.2000, at about 10.40 a.m., an information was given to the police that a dead body is lying in that apartment – As per prosecution, two disclosure/confessional statements were made by each of the two accused (‘S’ and ‘N’) during police custody – Trial Court held that the proven circumstances constituted a chain which conclusively indicated that the accused ‘S’ in the company of co-accused ‘N’ committed the crime and to remove the evidence hid the dagger and the bloodstained clothes and further, to hoodwink the police, ‘N’ wrote and planted a suicide letter in a pocket of the trouser worn by the deceased – Both the accused were convicted u/ss. 302 r/w. s. 34 – High Court acquitted ‘N’, however, S’s conviction was upheld – On appeal, held: Mere tenancy of the apartment being with ‘S’ by itself is not sufficient to hold him guilty as there is no general presumption against the owner/tenant of a property with regard to his/her guilt if a dead body with homicidal injuries is found in his/her property – Prosecution failed to lead any evidence that the two accused, or any one of them, were present there, or in the vicinity – There is no witness statement identifying the handwriting of accused ‘N’ or disclosing that accused wrote the suicide letter in his presence – There is also no evidence to explain the relevance of the contents of the suicide letter – Suicide letter indicts one person ‘C’– As to why such indictment was made; whether it was with reference to some other event contemplated, the prosecution evidence is silent – Barring the expert report, there exists no internal or external evidence to lend assurance to the prosecution story that the suicide letter was written by accused ‘N’ – As regards recovery of clothes at the instance of ‘S’, PW4, a witness to that recovery, has been declared hostile – There is thus no support to that recovery from any public witness – The circumstance that the clothes carried blood of same group as of the deceased is rendered meaningless because there is no admissible evidence to connect the clothes with the two accused – As regards recovery of knife at the instance of ‘N’, the same has been denied by ‘N’ and there appears no independent witness to support it – Its incriminating value is extremely limited because, firstly, there is no forensic evidence connecting the knife with the crime; secondly, the knife is a common knife which could easily be available; thirdly, the wounds found on the body of the deceased were of different dimensions giving rise to possibility of use of more weapon than one; and, fourthly, the entire exercise of recovery does not inspire confidence, particularly, because the first attempt to recover had failed – Thus, the prosecution failed to prove a chain of incriminating circumstances as to conclusively point out that in all human probability it was the two accused or any one of them, and no one else, who had committed the murder. Evidence – Circumstantial Evidence – Conviction on strength of evidence which are circumstantial in nature – Settled legal position – The circumstances from which the conclusion of guilt is to be drawn should be fully established – Also, circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused – Further, the circumstances taken cumulatively should form a chain so far complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and the circumstances should be consistent only with the hypothesis regarding the guilt of the accused and they must exclude every possible hypothesis except the one to be proved – The circumstances from which the conclusion of guilt is to be drawn should be fully established meaning thereby that they ‘must’ or ‘should’ and not ‘may be’ established as the Court must not be oblivious of the most fundamental principle of criminal jurisprudence, which is, that the accused ‘must be’ and not merely ‘may be’ guilty before the Court proceeds to convict him. Indian Evidence Act, 1872 – s. 106 – Burden of proof under it upon the accused – Legal position – It is settled that s. 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt – It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused.
Code of Criminal Procedure, 1973 – s. 311-A – Law therein and its prospective application – By Act No.25 of 2005, with effect from 23.06.2006, Section 311-A has been inserted in the Code thereby empowering a Magistrate of the First Class to direct any person including an accused to give specimen signature or handwriting for the purposes of investigation but this provision would have no bearing on the case instant case as it is of the year 2000.
Indian Evidence Act, 1872 – s. 73 – Scope – The provisions of S. 73 apply when a proceeding such as an inquiry or trial is pending in a Court – In the instant case, since no proceedings were pending before any Court when the specimens in question were obtained, provisions of s.73 could not have been invoked. Indian Evidence Act, 1872 – s. 45 – Handwriting Expert – Admissibility – Scope – It is not impermissible to base a finding with regard to authorship of a document solely on the opinion of a handwriting expert but, as a rule of prudence, because of imperfect nature of the science of identification of handwriting and its accepted fallibility, such opinion has to be relied with caution and may be accepted if, on its own assessment, the Court is satisfied that the internal and external evidence relating to the document in question supports the opinion of the expert and it is safe to accept his opinion.
Disposing of the appeals, the Court
HELD: Circumstance – Apartment from where the dead body was found stood in the tenancy and possession of accused ‘S’.
1. Prosecution seeks to bring home the charge levelled on the accused by relying on certain circumstances. As to when on strength of evidence circumstantial in nature conviction can be lawfully sustained, the law is well settled — the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established; these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; the circumstances taken cumulatively should form a chain so far complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused; the circumstances should be consistent only with the hypothesis regarding the guilt of the accused; and they must exclude every possible hypothesis except the one to be proved. Further, the circumstances from which the conclusion of guilt is to be drawn should be fully established meaning thereby that they ‘must’ or ‘should’ and not ‘may be’ established. While dealing with a criminal trial, a Court must not be oblivious of the most fundamental principle of criminal jurisprudence, which is, that the accused ‘must be’ and not merely ‘may be’ guilty before the Court proceeds to convict him. In Shivaji Sahabrao Bobade & Another v. State of Maharashtra, this Court, elaborating upon the above principle, observed that the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions. [Paras 23, 24][739-G-H; 740-A-D]
2. In Shivaji Chintappa Patil v. State of Maharashtra, it was observed that Section 106 of the IEA, 1872 does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. It was observed that Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused. [Para 32][744-C-D]
3. This Court is of the view that though the prosecution has succeeded in proving that the apartment where body of the deceased was found stood in the tenancy of ‘S’ but it failed to lead any evidence that the two accused, or any one of them, were present there, or in the vicinity, either on 11.09.2000 or any time thereafter, till recovery of the dead body. In other words, the prosecution miserably failed to show the presence of the accused around the probable time of murder. Further, the prosecution led no evidence to establish that the concerned apartment was under lock and key or exclusive control of either ‘S’ or ‘N’. Even the theory of exclusive possession of ‘S’ over that apartment is dented by the statement of PW4 that till a week before the incident one ‘HR’ used to live in that apartment with ‘S’. There is also no evidence of the prosecution to show that the concerned apartment had a separate stair case accessible to ‘S’ and no one else. For all the reasons above, though this Court holds that tenancy of the concerned apartment was proved to be with ‘S’ but neither his nor N’s presence in that apartment, around the relevant time, is proved by any evidence. It is also not proved that ‘S’ was in exclusive possession or control of that apartment. Rather, from the testimony of PW4 it appears that one ‘HR’ was residing there with ‘S’ though, he had left the place a week before the incident. As to whether the deceased came there after ‘HO’ had left or was residing there since before, is not clear from the prosecution evidence. In fact there is no evidence - (a) as to when the deceased came into that apartment and (b) in what capacity he was residing there. In light of the discussion above and in the facts of the case, in considered view of this Court, the mere presence of the dead body in the apartment let out to ‘S’ is not such a clinching circumstance which, on its own, could sustain S’s conviction with the aid of section 106 of the IEA, 1872 by shifting the onus on him to explain as to under what circumstances the dead body with multiple injuries was found there. [Para 36][746-C-H]
Circumstance — Cause of death and place of murder
4. As regards death of victim being homicidal and a consequence of multiple injuries caused by a sharp edged weapon, no serious challenge is there to the findings returned by the courts below. There is no challenge to the finding that blood etc. was lifted from the apartment thereby confirming that murder took place there. However, in addition to blood or blood-stained cot/linen there were whisky bottle, empty packets/ pouches of salted snacks, cigarette butts, etc. lifted from that apartment but there is no evidence to connect those articles with either of the two accused so as to confirm their presence and rule out the presence of some other person at the relevant time. [Para 37][747-A-C] Circumstance — Recovered Suicide Letter being in the writing of ‘N’
5. In the instant case, N’s specimens of handwriting and signature were obtained by the investigating agency during investigation when there existed no specific provision in the Code regulating the procedure for obtaining such specimens and there existed no provision proscribing the investigating agency from obtaining specimens of handwriting/signature of an accused or a suspect. As far as the provisions of Section 73 of the IEA, 1872 are concerned, they apply when a proceeding such as an inquiry or trial is pending in a Court. Since no proceedings were pending before any Court when the specimens in question were obtained, provisions of section 73 of the IEA, 1872 could not have been invoked. In such a situation, as there existed no legal provision proscribing an investigating agency from obtaining specimens of handwriting/signature of a suspect or an accused, in view of this Court, the investigating agency had the power to collect such material including specimen handwriting/ signature as to assist the prosecution to introduce a relevant fact or corroborate any piece of evidence on a relevant fact/fact in issue. For the reasons, the expert report (i.e. FSL report) obtained during investigation by the investigating agency, predicated on specimens of handwriting/ signature of accused obtained during investigation, could not have been discarded merely because it was obtained during investigation and without an order/permission of the Court as contemplated under section 73 of the IEA, 1872.[Para 51][752E-G; 753-A-B]
6. In the instant case, according to the prosecution evidence, the specimen signatures and handwritings of ‘N’ were obtained during investigation. Memorandum/documents in connection therewith including the specimens were produced, proved and marked exhibits thereby proving that they were properly kept and dispatched to FSL along with the disputed suicide letter for obtaining expert opinion. Genuineness of those specimens have not been questioned by ‘N’. The only defence taken is that the specimens of handwriting and signature were obtained by compulsion. As this Court has already found that such objection was unsustainable therefore, once genuineness of the specimens was not disputed, the specimens were available for comparison and were rightfully used for obtaining expert report. In such a scenario, the net result would be that the FSL report, which was provided by a government scientific expert specified in Section 293 of the Code, was admissible regardless of the fact that the expert was not examined as a witness. More so, when the defence filed no application to summon the expert for crossexamination. Consequently, the finding of the High Court with regard to the FSL report being inadmissible is erroneous and is, accordingly, set aside. [Para 59][756-C-F]
Whether the FSL Report on its own was sufficient to hold that the suicide letter was written by ‘N’.
7. Though it is not impermissible to base a finding with regard to authorship of a document solely on the opinion of a handwriting expert but, as a rule of prudence, because of imperfect nature of the science of identification of handwriting and its accepted fallibility, such opinion has to be relied with caution and may be accepted if, on its own assessment, the Court is satisfied that the internal and external evidence relating to the document in question supports the opinion of the expert and it is safe to accept his opinion. In the instant case, with regard to authorship of the suicide letter, the Trial Court though returned a finding in favour of the prosecution by relying solely on the expert report but did not record its satisfaction having regard to its own observations with respect to the admitted and disputed writings. It also did not examine whether in the proven facts and circumstances of the case it would be safe to rely on the expert report.It be noted that section 73 of the IEA, 1872 enables a Court to compare the words or figures written by a person present in Court with any words or figures alleged to have been written by such person. The Trial Court therefore could have undertaken such an exercise. But, in the instant case, there appears no such exercise undertaken by the Trial Court. What is important is that in the instant case there is no witness statement identifying the handwriting of accused ‘N’ or disclosing that accused wrote the suicide letter in his presence. There is also no evidence to explain the relevance of the contents of the suicide letter. Interestingly, the suicide letter indicts one person ‘C’. As to why such indictment was made; whether it was with reference to some other event contemplated, the prosecution evidence is silent. Besides that, there is no evidence to show that the investigating officer queried person(s) conversant with the handwriting of the deceased to rule out possibility of the suicide letter being in the writing of the deceased himself. Such an exercise was necessary to lend assurance to the prosecution story of the suicide letter being written by accused to mask the murder, because, firstly, the death on its face was not suicidal, and, secondly, it could have ruled out possibility of it being written in contemplation of some other event. Seen in that light, barring the expert report, there exists no internal or external evidence to lend assurance to the prosecution story that the suicide letter was written by accused ‘N’. [Paras 65, 66][759-G-H; 760-A-G]
8. In addition to the above, it is difficult to accept as to why ‘N’ would leave a suicide letter written by him in a pocket of the trouser worn by the deceased, particularly, when the injuries even to a layman were homicidal. Notably, there were eight antemortem injuries found on the body of the deceased. [Para 67][760G-H]
9. Taking into account that ‘N’ has denied the incriminating circumstance of writing the suicide letter and no internal or external evidence, save the expert report, supports the writing of suicide letter by ‘N’, this Court is of the considered view that though the expert evidence was admissible as an opinion on the writing in the suicide letter but, on overall assessment of the evidence led by the prosecution, solely on its basis, it would be extremely unsafe to hold that the suicide letter retrieved from the trouser of the deceased was written by ‘N’. [Para 69][762-BC] Circumstance — The two accused were not traceable from 12.09.2000 till 23.09.2000
7. This Court does not find a good reason to draw an adverse inference against the two accused on account of few days delay in their act of surrender. [Para 70][763-E-F]
Circumstances — Disclosure statements, consequential discoveries and their connect with crime.
8. As regards recovery of clothes at the instance of ‘S’, PW4, a witness to that recovery, has been declared hostile. There is thus no support to that recovery from any public witness. And since this Court has already doubted the disclosure statements set up by the police witnesses, it would be unsafe to place reliance on their testimonies in respect of the recoveries pursuant thereto, particularly, when the place from where recovery of clothes is shown is none other than the rooftop of the building from where
13 days ago the body of the deceased was found. Because, in such a scenario, it would be logical to expect that the police would have left no nook and corner of that building unscanned. For all the reasons above, we doubt the recovery of clothes at the instance of ‘S’ and thereby discard the circumstance of recovery of clothes at his instance. The circumstance that the clothes carried blood of same group as of the deceased is rendered meaningless because there is no admissible evidence to connect the clothes with the two accused. As regards recovery of knife at the instance of ‘N’, the same has been denied by ‘N’ and there appears no independent witness to support it, inasmuch as PW-13, touted as a public witness, turned out to be a special police officer. Otherwise also, its incriminating value is extremely limited because, firstly, there is no forensic evidence connecting the knife with the crime; secondly, the knife is a common knife which could easily be available; thirdly, the wounds found on the body of the deceased were of different dimensions giving rise to possibility of use of more weapon than one; and, fourthly, the entire exercise of recovery does not inspire our confidence, particularly, because the first attempt to recover had failed. For all the reasons above, we hold that the circumstances with regard to making of disclosure statements and consequential discoveries/recoveries were not proved beyond reasonable doubt. [Paras 75, 76, 81, 82][766-B-E; 768-H; 769-A-C]
9. In light of the discussion above, there is no hesitation in holding that the prosecution has failed to prove a chain of incriminating circumstances as to conclusively point out that in all human probability it was the two accused or any one of them, and no one else, who had committed the murder. [Para 86][771C-D] Sukhvinder Singh & Others v. State of Punjab (1994) 5 SCC 152 : [1994] 3 SCR 1061; Devi Lal v. State of Rajasthan (2019) 19 SCC 447; Shambu Nath Mehra v. State of Ajmer AIR 1956 SC 404 : [1956] SCR 199; Nagendra Sah v. State of Bihar (2021) 10 SCC 725; Shivaji Chintappa Patil v. State of Maharashtra (2021)
5 SCC 626; State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808 : [1962] SCR 10; Selvi & Others v. State of Karnataka (2010) 7 SCC 263 : [2010] 5 SCR 381; State of Maharashtra v. Sukhdev Singh & Another (1992) 3 SCC 700 : [1992] 3 SCR 480; Ram Narain v. State of U.P. (1973) 2 SCC 86 : [1973] 3 SCR 91; Fakhruddin v. State of Madhya Pradesh AIR 1967 SC 1326; Lachhman Singh & Others v. State (1952) 1 SCC
362 : 1952 SCC OnLine SC 30 : AIR 1952 SC 167 : [1952] SCR 839; K. Chinnaswamy Reddy v. State of A.P. & Another AIR 1962 SC 1788 : [1963] SCR 412; Mohd. Inayatullah v. State of Maharashtra (1976) 1 SCC 828 : [1976] 1 SCR 715 – relied on.
State of Uttar Pradesh v. Ram Babu Misra (1980) 2 SCC 343 : AIR 1980 SC 791 : [1980] 2 SCR 1067; Malti Sahu v. Rahul & Another (2022) 10 SCC 226; Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; Shivaji Sahabrao Bobade & Another v. State of Maharashtra (1973) 2 SCC 793 : [1974] 1 SCR 489; Sukh Ram v. State of Himachal Pradesh (2016) 14 SCC 183 : [2016] 3 SCR 254; Ashish Jain v. Makrand Singh & Others (2019) 3 SCC 770 : [2019] 1 SCR 345; Sonvir alias Somvir v. State (NCT of Delhi) (2018) 8 SCC 24 : [2018] 7 SCR 830; State of U.P. v. Sunil (2017) 14 SCC 516; Ritesh Sinha v. State of U.P. & Another (2013) 2 SCC 357 : [2012] 11 SCR 683; State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79; Matru alias Girish Chandra v. State of U.P. (1971) 2 SCC 75 : [1971] 3 SCR 914; Pulukuri Kottaya & Others v. Emperor AIR 1947 PC 67 – 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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