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Sunday, April 20, 2014

Circumstantial Evidence - 5 principles -“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully 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 complete 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.= State of Himachal Pradesh … Appellant Vs. Raj Kumar. … Respondent= 2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41428

       Circumstantial Evidence - 5 principles -“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully 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  complete  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.=
Admittedly,  the  prosecution  case  is  based   on   circumstantial
evidence.  The circumstances were enumerated by the trial court as under:

        1) that the relationship between the deceased and the  accused  was
           not cordial due to the dispute on account of the  possession  of
           the room;


        2) that on the evening of 30.9.1998, there was  a  scuffle  between
           the accused and the deceased;

        3) that the accused had made an extra judicial  confession  of  his
           guilt on the morning of 1.10.1998 in presence of Balbir Singh;

        4) that the accused got recovered the blood stained Darat from  his
           possession under Section 27 of the Indian Evidence Act;

        5) that he had handed over to the police his blood stained  Pyazama
           and shirt to the police;

        6) that the accused was seen with the Darat coming out of the  room
           of the deceased in the early morning of 1.10.1998 by his brother
           Naresh Kumar an Smt. Neelam Kumari;

        7) that the blood group of the Darat, Chadar  and  Pyazama  of  the
           accused was opined to be the same i.e. group B by  the  chemical
           analyst; and

        8) that the shirt of the accused the khessi and pillow cover of the
           deceased had the blood stains of human being.”

6.    The trial court held that the circumstances Nos.3, 4 and  6  were  not
proved.  Thus, the extra-judicial confession of the respondent, the  alleged
recovery of blood stained Darat from the  respondent’s  possession  and  the
claim of PW-4 Naresh Kumar and PW-9 Smt. Neelam Kumari that  the  respondent
was seen by them coming out of the room of the deceased with a Darat in  the
early morning of 1.10.1998 are held to be not proved.Circumstances Nos.3, 4 and 6 having been held not  proved,  the  trial court erred in convicting the respondent  on  the  basis  of  the  remaining
circumstances.  The strained relationship between  the  respondent  and  the
deceased, the scuffle  that  had  allegedly  taken  place  between  them  on
30/9/1998; the alleged handing over of pyazama and shirt to  the  police  by
the respondent; same group of blood found on Darat (the  recovery  of  which
is not proved), on the Chadar found on the cot on  which  the  deceased  was
lying and on pyazama of the respondent and human blood found on  the  khessi
and pillow cover of the deceased were not, in our opinion in  the  facts  of
this case, sufficient to convict the respondent.=
the  High  Court  set  aside  the
order of conviction and  acquitted  the  accused.  Being  aggrieved  by  the
acquittal of the accused, the State of Himachal has approached this Court.=

In Sharad Birdhichand Sarda  v.  State of Maharashtra[1],  this  Court
laid down the five principles as regards  the  proof  of  a  case  based  on
circumstantial evidence.  This Court has reiterated  those  principles  time
and again.  They are:
            “(1) the circumstances from which the conclusion of guilt is to
      be drawn should be fully established.


                         xxx         xxx        xxx


           (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  complete  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.


           154. These five golden principles, if we may say so,  constitute
      the panchsheel  of  the  proof  of  a  case  based  on  circumstantial
      evidence.”


10.   In our opinion, in this case, for the reasons which  we  have  already
noted, the chain of circumstances is not so complete as  not  to  leave  any
reasonable ground for the conclusion consistent with the  innocence  of  the
respondent.  It is not possible to say that in  all  human  probability  the
respondent was the culprit.  The High  Court  has,  therefore,  rightly  set
aside the conviction and sentence and acquitted  the  respondent.   Besides,
while dealing with an appeal against order  of  acquittal,  we  have  to  be
cautious.   Unless  the  order  of  acquittal  is  perverse,  it  cannot  be
overturned.  We find the impugned judgment to be well reasoned  and  legally
sound.  It is  not  perverse.   The  appeal  is,  therefore,  liable  to  be
dismissed and is dismissed.  
           
2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41428
RANJANA PRAKASH DESAI, MADAN B. LOKUR

 IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.413 OF 2005


State of Himachal Pradesh                …         Appellant

           Vs.

 Raj Kumar.                           …      Respondent

                                  O R D E R

1.    In this appeal judgment and  order  dated  19/11/2004  passed  by  the
High Court of Himachal Pradesh at Shimla in Criminal Appeal No.401  of  2002
is under challenge.

2.    The respondent is the sole accused. He was  tried  by  the  Additional
Sessions  Judge,  Una,  (Himachal  Pradesh)  for  offence  punishable  under
Section 302 of the Indian  Penal  Code  (“the  IPC”).   The  Sessions  Court
convicted the respondent under Section 302 of the IPC and sentenced  him  to
suffer life imprisonment and to pay a fine of  Rs.3,000/-.   In  default  of
payment of fine, he was ordered to suffer simple  imprisonment  for  further
period of three months.  The respondent preferred  an  appeal  to  the  High
Court. By the impugned judgment and order, the  High  Court  set  aside  the
order of conviction and  acquitted  the  accused.  Being  aggrieved  by  the
acquittal of the accused, the State of Himachal has approached this Court.


3.    According to the prosecution, on 1/10/1998 at about  7.15  a.m.,  PW-7
Balbir Singh, Ward Panch and Nambardar of Halqua  Bhadorkali,  went  to  the
Police Post Daulatpur and lodged daily diary report (Ex-PA) stating that  at
about 7.00 a.m, PW-6 Dev Raj of the same  village  came  to  his  house  and
informed him that one Ashwani  Kumar  @  Pinku  (“the  deceased”)  had  been
killed.  They went to the house of Ashwani Kumar.  They found  the  deceased
lying in a pool of blood on a cot with various cut  injuries  on  his  head.
PW-9 immediately rushed to the Police Post  on  his  Scooter  to  lodge  the
report.  The respondent, who is the brother of  the  deceased  also  reached
the Police Post and disclosed to PW-7 Balbir Singh that he had murdered  his
brother with a ‘Darat’.   On the basis of daily diary report (Ex-PA),  First
Information Report (Ex-PW-11/A) was recorded by PW-11 HC  Yog  Raj,  at  the
Police Station Gagret.  Investigation was set in motion.   After  completion
of investigation, the respondent came to be charged as aforesaid.

4.    In support of its  case,  the  prosecution  examined  as  many  as  14
witnesses.  The respondent  pleaded  not  guilty  to  the  charge.   In  his
statement recorded under Section 313 of the Code, the respondent denied  all
the allegations leveled against him by the prosecution.

5.      Admittedly,  the  prosecution  case  is  based   on   circumstantial
evidence.  The circumstances were enumerated by the trial court as under:

        1) that the relationship between the deceased and the  accused  was
           not cordial due to the dispute on account of the  possession  of
           the room;


        2) that on the evening of 30.9.1998, there was  a  scuffle  between
           the accused and the deceased;

        3) that the accused had made an extra judicial  confession  of  his
           guilt on the morning of 1.10.1998 in presence of Balbir Singh;

        4) that the accused got recovered the blood stained Darat from  his
           possession under Section 27 of the Indian Evidence Act;

        5) that he had handed over to the police his blood stained  Pyazama
           and shirt to the police;

        6) that the accused was seen with the Darat coming out of the  room
           of the deceased in the early morning of 1.10.1998 by his brother
           Naresh Kumar an Smt. Neelam Kumari;

        7) that the blood group of the Darat, Chadar  and  Pyazama  of  the
           accused was opined to be the same i.e. group B by  the  chemical
           analyst; and

        8) that the shirt of the accused the khessi and pillow cover of the
           deceased had the blood stains of human being.”

6.    The trial court held that the circumstances Nos.3, 4 and  6  were  not
proved.  Thus, the extra-judicial confession of the respondent, the  alleged
recovery of blood stained Darat from the  respondent’s  possession  and  the
claim of PW-4 Naresh Kumar and PW-9 Smt. Neelam Kumari that  the  respondent
was seen by them coming out of the room of the deceased with a Darat in  the
early morning of 1.10.1998 are held to be not proved.

7.    Circumstances Nos.3, 4 and 6 having been held not  proved,  the  trial
court erred in convicting the respondent  on  the  basis  of  the  remaining
circumstances.  The strained relationship between  the  respondent  and  the
deceased, the scuffle  that  had  allegedly  taken  place  between  them  on
30/9/1998; the alleged handing over of pyazama and shirt to  the  police  by
the respondent; same group of blood found on Darat (the  recovery  of  which
is not proved), on the Chadar found on the cot on  which  the  deceased  was
lying and on pyazama of the respondent and human blood found on  the  khessi
and pillow cover of the deceased were not, in our opinion in  the  facts  of
this case, sufficient to convict the respondent.

8.    While overturning the trial court’s order, the High  Court  held  that
the trial court has rightly  held  that  the  first  two  circumstances  are
proved.  The High Court, however, held that  strained  relationship  between
the respondent and the deceased and a minor scuffle between the two  is  not
sufficient to convict the respondent.  The High Court  confirmed  the  trial
court’s finding that circumstances Nos.3, 4 and 6 are not proved.  The  High
Court further held that circumstances Nos.5, 7 and 8  are  also  not  proved
and the trial court was wrong in holding that they were proved.  The  upshot
of this is that there is a concurrent finding reached  by  the  trial  court
and the High Court that circumstances Nos.3, 4 and 6 have not  been  proved.
Having carefully perused the impugned judgment  and  also  the  evidence  on
record, we are of the opinion that the High  Court  has  rightly  held  that
strained relationship and minor  scuffle  between  the  respondent  and  the
deceased in the facts  of  this  case  is  not  sufficient  to  convict  the
respondent.   The High Court has discussed circumstances Nos.5, 7 and  8  in
detail and has rightly held them not proved.   We  are,  therefore,  of  the
view that no fault could be found with the impugned judgment.

9.    In Sharad Birdhichand Sarda  v.  State of Maharashtra[1],  this  Court
laid down the five principles as regards  the  proof  of  a  case  based  on
circumstantial evidence.  This Court has reiterated  those  principles  time
and again.  They are:
            “(1) the circumstances from which the conclusion of guilt is to
      be drawn should be fully established.


                         xxx         xxx        xxx


           (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  complete  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.


           154. These five golden principles, if we may say so,  constitute
      the panchsheel  of  the  proof  of  a  case  based  on  circumstantial
      evidence.”


10.   In our opinion, in this case, for the reasons which  we  have  already
noted, the chain of circumstances is not so complete as  not  to  leave  any
reasonable ground for the conclusion consistent with the  innocence  of  the
respondent.  It is not possible to say that in  all  human  probability  the
respondent was the culprit.  The High  Court  has,  therefore,  rightly  set
aside the conviction and sentence and acquitted  the  respondent.   Besides,
while dealing with an appeal against order  of  acquittal,  we  have  to  be
cautious.   Unless  the  order  of  acquittal  is  perverse,  it  cannot  be
overturned.  We find the impugned judgment to be well reasoned  and  legally
sound.  It is  not  perverse.   The  appeal  is,  therefore,  liable  to  be
dismissed and is dismissed.
                                                           …………………………………..J.
                                                     (RANJANA PRAKASH DESAI)



                                                            ……………………………………J.
                                                            (MADAN B. LOKUR)

NEW DELHI;
APRIL 17, 2014.







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[1]    (1984) 4 SCC 116

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