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PETITIONER: HARENDRA NARAIN SINGH ETC.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT17/07/1991

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) SAWANT, P.B.

CITATION:  1991 AIR 1842            1991 SCR  (3)  54  1991 SCC  (3) 609        JT 1991 (3)   167  1991 SCALE  (2)76

ACT:      Indian   Evidence   Act,   1872.   Section3.   Criminal Trial--Evidence --Circumstantial evidence--Nature and  proof of--Conditions precedent for conviction--Two views  possible on circumstantial evidence-One pointing to the guilt of  the accused  and the other to his innocence-Court  should  adopt latter--Circumstantial  evidence--Onus of  proof-Prosecution must adduce its own evidence--It cannot rely on the  absence of defence--Infirmity or lacuna in the prosecution cannot be cured by false explanation of accused.       Indian   Penal  Code,  1860:  Sections  302   and   34 Murder--Conviction based on circumstantial evidence--Validi- ty of.

HEADNOTE:       Appellants 1 and 2, along with other co-accused,  were prosecuted  for the offence of murder. The  entire  evidence was  circumstantial: (a) The murder was committed by  Appel- lant-2 in the dispensary of the Appellant-1, a doctor,  with his  connivance;  (b)  the dead body was taken  out  of  the dispensary  of the appellant-1 and the same was kept  on  an ekka  and carried to a village Dibbi where it was placed  in the courtyard of one of the co-accused; and (c) Recovery  of the dead body from the courtyard of a co-accused.       The Trial Court acquitted the accused from whose house the dead body was recovered but convicted the remaining four accused for the offences under section 302/34 of the  Indian Penal Code. On appeal by the accused persons the High  Court acquitted the other two coaccused but upheld the  conviction of the two appellants. Against their conviction, the  appel- lants  filed appeals in this Court, By an order  dated  3.5. 1991,  this Court allowed their appeals and set aside  their conviction. Giving reasons in support of its judgment, this Court,       HELD: 1. It is a cardinal principle of criminal juris- prudence  that circumstantial evidence must be fully  estab- lished  from which there should be inevitable conclusion  of the guilt of the accused beyond any reasonable doubt and the facts so established should be consistent only 55 with the hypothesis of the guilt of the accused, ruling  out

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any hypothesis of innocence of the accused. [58B]     2. There is yet another basic rule of criminal jurispru- dence that if two views are possible on the evidence adduced in  a case of circumstantial evidence, one pointing  to  the guilt  of  the accused and the other to his  innocence,  the Court  should  adopt the latter view favourable to  the  ac- cused. [59C]     3.  The prosecution has to succeed on the basis  of  its own  evidence and it can not rely on the absence of  defence to sustain the guilt as there is no justification for  rais- ing such assumption against the appellants. [63B]     Hanumant v. The State of Madhya Pradesh, [1952] 3 S.C.R. 1091;  Shivaji Saheb Rao Bobde & Anr. v. State of  Maharash- tra, [1973] 2 S.C.C. 793: [1974]  1 S.C.R. 489 and Sharad B. Chand v. Maharashtra, [1985] 1 S.C.R. 88, referred to.     4. In the instant case, there are glaring  circumstances which are fatal to the prosecution case. The prosecution has produced  evidence only to the effect that a dead  body  was taken  out of the dispensary of Appellant-1  by  Appellant-2 and  other accused persons and the same was carried  on  the ekka to village Dibbi. The prosecution witnesses have merely deposed  that they had seen a dead body being placed on  the ekka  and  taken to village Dibbi. None of  the  prosecution witness  has however, deposed that he had seen the  face  of the dead body or identified the same. In the absence of such evidence it would not be reasonable to assume that the  dead body  which was taken out from the dispensary and placed  on the ekka was that of the deceased. In the absence of identi- fication of dead body by the witnesses it is not  legitimate to  hold  that the dead body which was taken  out  from  the dispensary of Appellant-1 was that of deceased. [62E-F, G]     4.1  There  is another vital defect in  the  prosecution case.  The prosecution failed to produce any  evidence  that the  deceased was taken to the dispensary for  treatment  by Appellant-2  and other accused persons while she  was  alive and  that she was admitted to the dispensary of  Appellant-1 for treatment, at a time when she was alive. In the  absence of  any  such evidence there are various  possibilities  and probabilities, one of them being that the deceased may  have been brought to the dispensary for medical assistance  after she was found to be strangulated by some one. Further  there is no evidence of the fact 56 that  when the deceased was inside the dispensary  no  other person  had  access  to her except the  appellants.  In  the absence  of any such evidence it would not be legitimate  to assume that the deceased was strangulated in the  dispensary by Appellant-2 with the connivance of Appellant-1 Therefore, the prosecution failed to prove the necessary facts and  the circumstances  established by it are not sufficient to  con- clusively point to the appellants as the perpetrator of  the crime  or  to rule out the hypothesis  of  their  innocence. Accordingly, the High Court and the Trial Court both commit- ted  error in convicting the appellants. The High Court  was also not justified in drawing adverse inference for complet- ing  the  chain of circumstances to uphold  the  appellant’s conviction  merely  on the appellant’s false  explnaton  in, defence. [62G-H, 63A-C-D]

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION: Criminal  Appeal  Nos. 578/88 & 728/89.     From  the Judgment and Order dated 15.7. 1986  of  Patna

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High Court in Crl. A. Nos. 97 & 87 of 1983. A. Sharan for the Appellants. D. Goburdhan for the Respondent. The Judgment of the Court was delivered by     SINGH, J These appeals were heard on 3.5. 1991 and after hearing  learned counsel for the parties we  had  pronounced the  operative portion of the judgment allowing the  appeals and  setting aside the judgment and order of the High  Court convicting the appellants for offences under Section  302/34 I.P.C.  We  had observed that the reasons for  the  judgment would  be given later and now we are giving reasons for  the same.     These two appeals are directed against the judgment  and order of the High Court of Patna dated 15.7. 1986  upholding the  conviction  of Dr. Harendra Narain Singh and  Ram  Nath Singh,  appellants for the offences under Section 302/34  of the I.P.C.     Briefly,  the facts as disclosed by the prosecution  are that  Smt. Jagia Devi; a widow having two sons was  carrying four  months pregnancy. She was taken to the  dispensary  of Dr.  Harendra Narain Singh, the appellant who was  a  Homeo- pathic  doctor  on the pretext of treatment of pain  in  her stomach though the real purpose for taking’ 57 her to the dispensary was for aborting foetus which she  was carrying.  She was murdered in the dispensary and  her  dead body was taken to Village Dibbi in an Ekka and placed in the courtyard of the house of Smt. Tileshwara Kuar. Teg  Bahadur Singh  PW 11 came to know from a young boy that a dead  body was  kept in the courtyard of Smt. fileshwara Kuar. He  went to  the house of Smt. Tileshwara Kuar and  on  interrogation she  told him that some persons after committing  murder  of Jagia Devi had kept her dead body inside her house. The door of the house was locked. Smt. Tileshwara handed over the key to  Teg Bahadur Singh who unlocked the door and entered  the house  and found the dead body of Jagia lying on the  ground in  the courtyard. He rushed to the Police Station  and  re- ported  the matter to the police which was reduced in  writ- ing. The police registered a case and proceeded to the spot. The  Investigating Officer recovered the dead body from  the house of Tileshwara Kuar and made inquest and sent the  dead body  for  post-mortem. On completion of  investigation  the police submitted’ chargesheet against seven accused persons, namely, Tileshwara Kuar, Ram Nath Singh, Bishwanath Roy  s/o Dip  Roy, Ishwar Shah, Dr. Harendra Narain Singh, Smt.  Jota Kuar  w/o Dip Roy and Bishwanath Singh alias  Bissu.  During the  pendency of the case before the Trial Court  Bishwanath Roy and Jota Kuar died, therefore, the trial proceeded  only against the remaining five accused persons.     Before  the  Trial Court, the  prosecution  produced  14 witnesses  in  support of its case but there was  no  direct evidence  or  eye witness to support the charge  of  murder. Entire case of the prosecution is founded on  circumstantial evidence. The Trial Court acquitted Smt. Tileshwara Kuar who had  been charged for offences under Section 302/34 and  201 of  the IPC but it convicted the remaining accused Ram  Nath Singh, Ishwar Shah, Harendra Narain Singh & Bishwanath Singh alias  Bissu for the offences under Section 302 of  the  IPC read  with  Section 34 of the IPC and also under  Section  3 15/34, IPC. On appeal by the accused the High Court  acquit- ted Ishwar Shah, Bishwanath Singh alias Bissu but it  upheld the  conviction  of Dr. Harendra Narain Singh and  Ram  Nath Singh  for  offences under Section 302/34 of  the  IPC.  Ag- grieved  Dr. Harendra Narain Singh and Ram Nath  Singh  have preferred these two appeals.

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   The entire case of the prosecution rests on the  circum- stantial  evidence as no prosecution witness has  given  any direct  testimony against the appellants for the  commission of the offence for which they have been convicted. The Trial Court as well as *he High Court both have relied on  circum- stantial evidence in convicting the appellants for 58 the  offences  under Section 302/34 of the  IPC.  Since  the entire case rests on circumstantial evidence it is necessary to  refer to the principles which should guide the Court  in considering the conviction of an accused resting on  circum- stantial  evidence. It is a cardinal principle  of  criminal jurisprudence  that  circumstantial evidence must  be  fully established from which there should be inevitable conclusion of the guilt of the accused beyond any reasonable doubt  and the facts so established should be consistent only with  the hypothesis  of  the  guilt of the accused,  ruling  out  any hypothesis of innocence of the accused. In Hanurnant v.  The State  of Madhya Pradesh, [1952] 3 SCR 1091 this Court  laid down  fundamental and basic principles for appreciating  the circumstantial evidence. Mahajan, J, speaking for the  Court observed:               "It  is well to remember that in  cases  where               the  evidence is of a  circumstantial  nature,               the circumstances from which the conclusion of               guilt  is  to  be drawn should  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  ac-               cused. 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  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."     These  principles were reiterated by this Court in  Shi- vaji Saheb Rao Bobde & Anr. v. State of Maharashtra,  [1973] 2 SCC 793 wherein it was emphasised that where the  prosecu- tion  rests  merely on circumstantial  evidence,  the  facts 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  accused is guilty. The Court further observed that the circumstances should  be  of  a conclusive nature and  tendency  and  they should  exclude every possible hypothesis except the one  to be proved and the chain of evidence should be so complete as to  rule out any reasonable ground for the  conclusion  con- sistent  with the innocence of the accused and  the  circum- stances must show that in all human probability the act must have  been done by the accused. These principles  have  been consistently  laid down by this Court in several  decisions, it is not necessary to refer to all these decisions.  Howev- er,  we  would like to refer to the decision  in  Sharad  B. Chand v. Maharashtra, [1985] 1 SCR page 88 as 59 this case has been relied upon by the High Court in  uphold- ing  the conviction of the appellants. In Sharad B.  Chand’s case this Court while considering the absence of explanation or a false explanation of the accused for the  circumstances and  the facts proved against him, struck a note of  caution that  before a false explanation is used as additional  link

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against the accused the Court should satisfy itself that (1) Various  links in the chain of evidence led by the  prosecu- tion have been satisfactorily proved. (2) The  circumstances point to the guilt of accused with reasonable  definiteness; and  (3) The circumstances are in proximity to the time  and situation where all these conditions are fulfilled only then a Court can use a false explanation or a false defence of an accused,  as an additional link to lend an assurance to  the Court and not otherwise. There is yet another basic rule  of criminal jurisprudence that if two views are possible on the evidence  adduced in a case of circumstantial evidence,  one pointing  to the guilt of the accused and the other  to  his innocence, the Court should adopt the latter view favourable to the accused. We have reminded ourselves of these  princi- ples  with a view to ascertain as to whether the High  Court has  correctly  applied these principles in  convicting  and sentencing the appellants.     The  evidence  produced by the  prosecution  relates  to establish  the  circmustances that (1) Smt.  Jagia  Devi,  a widow  (brother’s  daughter  of Smt.  Tileshwara  Kuar,  the accused)  died  on 22.9.1973. (2) Death of  Jagia  Devi  was caused  due to throttling leading to asphyxia as deposed  by Dr. Anand Mohan PW 6. The Doctor who carried on the postmor- tem  of  the dead body was of the opinion  that  Jagia  Devi killed  by strangulation in the neck. (3) 1n the  night  be- tween 22.9. 1973 and 23.9.1973, a dead body was taken out of the  dispensary of Dr. Harendra Narain Singh by the  accused Ram Nath Singh and Bish wanath Singh alias Bissu and  placed on  an ekka in the presence of Ishwar Shah and Dr.  Harendra Narain Singh. Smt. Jota Kuar (mother of Ram Nath Singh,  the appellant)  was  also present there. (4) The dead  body  was placed  on  the ekka of Amanat Khan PW 10 and the  same  was carried  to village Dibbi. Ram Nath Singh, Bishwanath  Singh and  Jota  Kuar also accompanied the dead  body  to  village Dibbi. (5) Recovery of the dead body of Jagia Devi from  the courtyard of Smt. Tileshwara Kuar, an accused.     On  the  basis of these circumstances,  the  High  Court upheld  the  conviction of Ram Nath Singh and  Dr.  Harendra Narain  Singh,  the appellants, as in its opinion  Ram  Nath Singh  had motive to murder Jagia Devi as she being a  widow was carrying pregnancy of four 60 months.  The murder was committed in the dispensary  of  Dr. Harendra  Narain Singh where she had been taken for  medical aid for pain in stomach. The Trial Court had acquitted  Smt. Teleshwara  Kuar, from whose house dead body was  recovered. In  appeal the High Court acquitted Ishwar Shah and  Bishwa- nath  Singh alias Bissu also. The prosecution  evidence  and the  circumstances on the basis of which Ram Nath Singh  and Dr.  Harendra Narain Singh have been convicted are the  same as  applicable  to the case of Ishwar  Shah  and  Bishwanath Singh alias Bissu, but the High Court acquitted them and  at the same time it upheld the conviction of Ram Nath Singh and Dr.  Harendra Narain Singh on the same set of  the  evidence and circumstances without’ there being any distinction.  The main  circumstances  which weighed with the  High  Court  in upholding the conviction of Ram Nath Singh and Dr.  Harendra Narain Singh was that the dead body of Jagia Devi was  taken out  of  the  dispensary of Dr. Harendra  Narain  Singh  and placed  on the ekka of Amanat Khan PW 10 by Ram Nath  Singh. In view of this proved circumstance the High Court concluded that  in all likelihood Jagia Devi was murdered in the  dis- pensary of Dr. Harendra Narain Singh with his connivance and thereafter the dead’ body was taken on ekka to village Dibbi and  placed  in the courtyard of Smt. Teleshwara  Kuar.  The

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presumption  that Ram Nath Singh committed murder  of  Jagia Devi  by  strangulation in the dispensary  of  Dr.  Harendra Narain  Singh  with his connivance is  based  on  conjecture without  there being any conclusive circumstance  justifying such presumption.     The  High Court has placed strong reliance on  the  evi- dence  of  PW 10 Amanat Khan in holding the  appellants  Dr. Harendra  Narain Singh and Ram Nath Singh guilty of  murder. PW  10 Amanat Khan was an ekkawala who plied  passengers  on hire, he was resident of village Bagaura, where the  dispen- sary  of Dr. Harendra Narain Singh was situate. Amanat  Khan testified  that at about 2 a.m. in the night the  appellants Ram  Nath  Singh, Dr. Harendra Narain Singh  and  Bishwanath Singh alias Bissu awakened him and requested him to ’carry a patient  to  village Dibbi. At first he refused to  ply  his ekka at that odd hour of the night but after some time  they again  returned and put pressure on him to take his ekka  to the dispensary of Dr. Harendra Narain Singh for transporting the  patient to Village Dibbi. On their pursuasion  he  took his  ekka  to the dispensary of Dr.  Harendra  Narain  Singh where  he  found Ishwar Shah, Jagannath and Smt.  Jota  Kuar (mother  of appellant Ram Nath) present at  the  dispensary. According to him Ram Nath and Bishwanath, deceased brought a dead  body  from the dispensary of  the  appellant  Harendra Narain Singh and placed the 61 same  on  the ekka. Ram Nath Singh, Bishwanath  Singh  alias Bissu  and  Smt. Jota Kuar also sat in the  ekka.  On  their request he carried them to village Dibbi Where Ram Nath  and Bishwanath alias Bissu unloaded the dead body from the  ekka at the house of Smt. Teleshwara Kuar. Amanat Khan’s testimo- ny  is  supported  by PW 3, Dukhan Majhi,  PW  4  Bisheshvar Chowkidar  and PW 5 Shiv Dutt. Their testimony is merely  to the  fact that the appellants Ram Nath Singh and  Bishwanath Singh  were  sitting on the ekka which was carrying  a  dead body  from  the  dispensary of Dr.  Harendra  Narain  Singh. Placing  reliance  on the testimony of these  witnesses  the High  Court  and the Trial Court concluded that  Smt.  Jagia Devi,  the  deceased was murdered in the dispensary  of  Dr. Harendra Narain Singh and the dead body was carried by  them on the ekka to village Dibbi and placed in the courtyard  of Smt.  Tileshwara  Kuar. The High Court and the  Trial  Court both  failed  to  notice that the  prosecution  produced  no evidence  to show that Smt. Jagia, the deceased was  brought to the dispensary of Dr. Harendra Narain Singh while she was alive. There is further no evidence as to who brought her to the  dispensary in what condition. The only  evidence  which the prosecution has produced in this respect is that a  dead body  was  taken  out from the dispensary  of  Dr.  Harendra Narain  Singh and placed on the ekka by Ram Nath  Singh  and others and taken to village Dibbi.     The  High  Court was conscious of the  weakness  of  the prosecution case, even then it upheld the conviction of  the appellant  perhaps on moral grounds. In para 3 of its  judg- ment the High Court observed:               "although  14 witnesses have been examined  on               behalf  of the prosecution there is no  direct               evidence or eye witness account of murder. The               witnesses  however are not all  relevant  even               for proving the circumstances and other colat-               oral matters".     After  making the aforesaid observations ordinarily  the High  Court should have rejected the prosecution case  which was  based on circumstantial evidence but  strangely  enough the High Court inspite of the aforesaid observations, upheld

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the conviction of the appellants.     While dealing with the case of Dr. Harendra Narain Singh the  High Court observed that he was a man of shaky  charac- ter. This observation was made on the basis that even though he  was a homeopathic doctor but allopathic  medicines  were recovered from his dispensary. In our opinion, mere recovery of allopathic medicines from the dis- 62 pensary  of Dr. Harendra Narain Singh does  not  necessarily show that he was a man of shaky character. It is a matter of common  knowledge that even a homeopathic  doctor  sometimes refer  the  patients to allopathic treatment.  The  fact  of recovery of allopathic medicines has no connection or  rela- tion to the commission of the offence for which Dr. Harendra Narain  Singh  has been convicted. The  High  Court  further observed  that when the dead body of the deceased was  taken out from the dispensary by Ram Nath Singh and other  accused persons  Dr. Harendra Narain Singh was present at the  spot, therefore  he  was  so closely connected  with  the  affairs taking  place at his house that none could without  his  as- sistance  do  anything, Apart from this there was  no  other evidence  or circumstance against Dr. Harendra Narain  Singh It is significant to note that according to the  prosecution when the dead body of the deceased was taken out of  dispen- sary  and  placed on ekka Ishwar Shah and  Bishwanath  Singh alias  Bissu  accused were also present  at  the  dispensary along  with  Dr. Harendra Narain Singh  yet’they  have  been acquitted  by the High Court. The High Court failed to  give any cogent reason for upholding the conviction of Dr. Haren- dra Narain Singh.     We  have carefully gone through the evidence  on  record and  considered the various circumstances and the  facts  of the  case.  In our opinion, there are  two  glaring  circum- stances which are fatal to the prosecution case. The  prose- cution has produced evidence only to the effect that a  dead body was taken out of the dispensary of Dr. Harendra  Narain Singh  by Ram Nath Singh and other accused persons  and  the same was carried on the ekka to village Dibbi. The  prosecu- tion witnesses have merely deposed that they had seen a dead body  being placed on the ekka and taken to  village  Dibbi. None of the prosecution witness has however, deposed that he had  seen the face of the dead body or identified the  same. In  the absence of such evidence it would not be  reasonable to  assume that the dead body which was taken out  from  the dispensary  and placed on the ekka was that of the  deceased Jagia Devi. In the absence of identification of dead body by the  witnes ses it is not legitimate to hold that  the  dead body which was taken out from the dispensary of Dr. Harendra Narain Singh was that of Jagia Devi. There is another  vital defect  in the prosecution case: The prosecution  failed  to produce any evidence that the deceased Jagia Devi was  taken to  the hospital for treatment by Ram Nath Singh  and  other accused persons while she was alive and that she was  admit- ted  to  the  dispensary of Dr. Harendra  Narain  Singh  for treatment,  at a time when she was alive. In the absence  of any Such evidence there are various possibilities and proba- bilities, one of them being that the 63 deceased may have been brought to the dispensary for medical assistance  after she was found to be strangulated  by  some one. There is further no evidence of the fact that when  the deceased  was  inside  the dispensary no  other  person  had access  to her except the appellants. In the absence of  any such evidence it would not be legitimate to assume that  the deceased  was  strangulated in the dispensary  by  Ram  Nath

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Singh  with  the connivance of Dr.  Harendra  Narain  Singh. Merely because the appellants failed to raise any such  plea in  their defence does not lend any support to the  prosecu- tion  case. The prosecution has to succeed on the  basis  of its  own  evidence  and it can not rely on  the  absence  of defence  to sustain the guilt as there is  no  justification for  raising  such assumption against  the  appellants.  The circumstances established by the prosecution are not  suffi- cient to conclusively point to the appellants as the  perpe- trator  of the crime or to rule out the hypothesis of  their innocence. Since the prosecution failed to prove the  neces- sary  facts showing that the deceased while alive  was  last seen in the company of the appellants or that the dead  body which was carried on the ekka was that of the deceased Jagia Devi,  the High Court was not justified in  drawing  adverse inference  for  completing  the chain  of  circumstances  to uphold the appellant’s conviction merely on the  appellant’s false explanation in defence.     In  view of the above discussion, we are of the  opinion that the High Court and the Trial Court both committed error in  convicting  the  appellants. We  accordingly  allow  the appeals  and  set aside the judgment and order of  the  High Court convicting the appellants. T.N.A.                                               Appeals allowed. 64