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CASE NO.: Appeal (crl.)  641 of 1998

PETITIONER: State of Madhya Pradesh

RESPONDENT: Sanjay Rai

DATE OF JUDGMENT: 25/03/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       State of Madhya Pradesh calls in question legality of  the judgment rendered by a Division Bench of the Madhya  Pradesh 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  IPC’) and sentenced to undergo life imprisonment and a fine  of Rs.200/- in addition to sentence of three years RI  imposed for offence punishable under Section 201 IPC 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 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 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- 1) and Dr. Pathak (PW-2) were called, who advised them to  take Anita to the hospital 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 post- mortem 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 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

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which was cut immediately after the hanging. 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 IPC. 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, 304B and 201 IPC.   All the three accused persons including respondent were  found not guilty of offences relatable to Sections 302 and  201 IPC. The parents of the respondent were also found to be  not guilty of offence relatable to Section 302 IPC. So far  as respondent 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 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 respondent-accused  and his father immediately after the occurrence called the  doctors PW-1 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 directed acquittal of the  accused persons from the allegations relatable to Section  304B.  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.  Holding the evidence to  be not sufficient to fasten the guilt on the accused,  acquittal was directed.

       In support of the appeal, learned counsel for the  appellant-State submitted 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. Sushil Kumar, learned senior advocate  for the 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 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); Balwinder Singh v. State of Punjab (AIR 1987  SC 350); 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

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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 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. Chenga Reddy and Ors. v. State of A.P. (1996  (10) SCC 193), wherein it has been observed thus:         "In a case based on circumstantial  evidence, the settled law is that the  circumstances from which the conclusion of  guilt is drawn should be fully proved and  such circumstances must be conclusive in  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), it was laid down that when a case rests upon  circumstantial evidence, such evidence must satisfy the  following tests:         

(1)     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 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 with his innocence.          In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.  L.J. 1104), it was pointed out that great care must be taken  in evaluating circumstantial evidence and if the evidence  relied on is reasonably capable of two inferences, the one  in favour of the accused must be accepted. It was also  pointed out 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 case of  circumstantial evidence: (1) 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;

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(3) in all cases, whether of direct or circumstantial  evidence the best evidence 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".

       There is no doubt that conviction can be based solely  on circumstantial evidence but it should be tested by the  touch-stone of law relating to 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 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 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 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 accused is guilty; (3)     the circumstances should be of a conclusive nature  and tendency; (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 of the accused and must  show that in all human probability the act must have  been done by the accused.

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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.

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 be relied to discredit his  opinion are put to him. This Court in Sunderlal 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 expressed in Bhagwan Das and  another v. State of Rajasthan (AIR 1957 SC 589). Though  opinions expressed in text books by specialist authors may  be 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 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.    

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.

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 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  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 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

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to prevent miscarriage of justice 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 Babulal Doshi v. State of  Gujarat (1996 (4) Supreme 167), Jaswant Singh v. State of  Haryana (2000 (3) Supreme 320), Raj Kishore Jha v. State of  Bihar and Ors. (2003 (7) Supreme 152), State of Punjab v.  Karnail Singh (2003 (5) Supreme 508), State of Punjab v.  Pohla 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 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.