* Author
[2024] 2 S.C.R. 391 : 2024 INSC 124
Kalinga @ Kushal
v.
State of Karnataka By Police Inspector Hubli
(Criminal Appeal No. 622 of 2013)
20 February 2024
[Bela M. Trivedi and Satish Chandra Sharma,* JJ.]
Issue for Consideration
Whether the extra judicial confession of the appellant-accused
was admissible, credible and sufficient for his conviction thereon
for the murder of his brother-PW-1’s son; whether the testimony
of PW-1 could be termed as reliable and trustworthy and; whether
the chain of circumstantial evidence was complete and consistent
for arriving at the conclusion of guilt.
Headnotes
Evidence – Extra judicial confession – Evidentiary value –
Case based on circumstantial evidence – Trial Court acquitted
all the accused persons – Appeal against acquittal – High
Court reversed the acquittal of the appellant and convicted
him largely based on the extra judicial confession allegedly
made by him before PW-1 – Correctness:
Held: Extra judicial confession is a weak type of evidence and
is generally used as a corroborative link to lend credibility to the
other evidence on record – It must be accepted with great care
and caution – If it is not supported by other evidence on record,
it fails to inspire confidence and shall not be treated as a strong
piece of evidence for the purpose of arriving at the conclusion of
guilt – The extent of acceptability of an extra judicial confession
depends on the trustworthiness of the witness before whom it is
given and the circumstances in which it was given – Prosecution
must establish that a confession was indeed made by the accused,
it was voluntary in nature and the contents of the confession
were true – In the present case, the extra judicial confession
is essentially based on the deposition of PW-1, the father of
the deceased whose testimony is fatal to the prosecution case
on multiple parameters – The doubtful existence of the extra
392 [2024] 2 S.C.R.
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judicial confession, unnatural prior and subsequent conduct of
PW-1, recovery of dead body in the presence of an unreliable
witness PW-2, contradictions regarding arrest, testimony of the
witnesses in support of the last seen theory etc. are some of the
inconsistencies which strike at the root of the prosecution case
– There exist serious doubts regarding the identity of the dead
body recovered from the well – Testimony of PW-1 not trustworthy
and reliable – Evidence on record fails the test laid down for the
acceptability of circumstantial evidence – Trial Court appreciated
the evidence in a comprehensive sense, High Court reversed
the view without arriving at any finding of perversity or illegality
therein – It took a cursory view of the matter and merely arrived at
a different conclusion on re-appreciation of evidence – Anomaly of
having two reasonably possible views in a matter is to be resolved
in favour of the accused – After acquittal, the presumption of
innocence in favour of the accused gets reinforced – High Court
erred in reversing the acquittal – Impugned judgment set aside –
Order of Trial Court restored, appellant acquitted. [Paras 14-16,
25-27 and 30]
Appeal against acquittal – Exercise of appellate powers by
High Court:
Held: High Court, in exercise of appellate powers, may re-appreciate
the entire evidence – However, reversal of an order of acquittal is
not to be based on mere existence of a different view or a mere
difference of opinion – To permit so would be in violation of the
two views theory – In order to reverse an order of acquittal in
appeal, it is essential to arrive at a finding that the order of the
Trial Court was perverse or illegal; or that the Trial Court did not
fully appreciate the evidence on record; or that the view of the
Trial Court was not a possible view. [Para 25]
Evidence – Extra judicial confession – Standard of proof:
Held: The standard required for proving an extra judicial confession
to the satisfaction of the Court is on the higher side and the
essential ingredients must be established beyond any reasonable
doubt – The standard becomes even higher when the entire case
of the prosecution necessarily rests on the extra judicial confession.
[Para 15]
Evidence – Circumstantial evidence – “Panchsheel” Principles:
[2024] 2 S.C.R. 393
Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli
Held: Essentially, circumstantial evidence comes into picture
when there is absence of direct evidence – For proving a case
on the basis of circumstantial evidence, it must be established
that the chain of circumstances is complete – It must also be
established that the chain of circumstances is consistent with the
only conclusion of guilt – The margin of error in a case based on
circumstantial evidence is minimal – For, the chain of circumstantial
evidence is essentially meant to enable the court in drawing an
inference – The task of fixing criminal liability upon a person on
the strength of an inference must be approached with abundant
caution. [Para 27]
Criminal Law – Minor inconsistencies vis-à-vis reasonable
doubt – Case based on circumstantial evidence – Plea of the
respondent-State that minor inconsistencies could not be
construed as reasonable doubts for ordering acquittal:
Held: No doubt, it is trite law that a reasonable doubt is essentially
a serious doubt in the case of the prosecution and minor
inconsistencies are not to be elevated to the status of a reasonable
doubt – A reasonable doubt is one which renders the possibility
of guilt as highly doubtful – Purpose of criminal trial is not only to
ensure that an innocent person is not punished, but it is also to
ensure that the guilty does not escape unpunished – In the present
case, the inconsistencies in the case of the prosecution are not
minor inconsistencies – Prosecution miserably failed to establish
a coherent chain of circumstances – The present case does not
fall in the category of a light-hearted acquittal, which is shunned
upon in law. [Para 29]
Case Law Cited
Chandrapal v. State of Chattisgarh [2022] 3 SCR 366 :
(2022) SCC On Line SC 705; Sanjeev v. State of H.P
(2022) 6 SCC 294 – relied on.
Sansar Chand v. State of Rajasthan [2010] 12 SCR
583 : (2010) 10 SCC 604; Piara Singh v. State of Punjab
[1978] 1 SCR 597 : (1977) 4 SCC 452; Mallikarjun v.
State of Karnataka [2019] 11 SCR 609 : (2019) 8 SCC
359; Hari Singh & Anr. v. State of Uttar Pradesh [2021]
10 SCR 1022 : Criminal Appeal No. 186 of 2018 (SC);
Sucha Singh v. State of Punjab [2003] Suppl. 2 SCR
35 : (2003) 7 SCC 643 – referred to.
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List of Acts
Penal Code, 1860.
List of Keywords
Extra judicial confession; Weak type of evidence; Circumstantial
evidence; Chain of circumstantial evidence; Appeal against
acquittal; Acquittal reversed; Two possible views; Conclusion of guilt;
Perversity or illegality; Cursory view; Presumption of innocence in
favour of accused; Beyond reasonable doubt; Minor inconsistencies;
Reasonable doubt; Inconsistencies not minor; Appellate powers;
Re-appreciation of evidence; Absence of direct evidence; Criminal
trial purpose; Stock witness.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 622
of 2013
From the Judgment and Order dated 28.03.2011 of the High Court
of Karnataka, Circuit Bench at Dharwad in Criminal Appeal No.130
of 2005
Appearances for Parties
Sharan Thakur, Mahesh Thakur, Siddharth Thakur, Shivamm
Sharrma, P.N. Singh, Mustafa Sajad, Ms. Keerti Jaya, Ranvijay Singh
Chandel, Dr. Sushil Balwada, Advs. for the Appellant.
Muhammed Ali Khan, A.A.G., V. N. Raghupathy, Omar Hoda, Ms.
Eesha Bakshi, Uday Bhatia, Kamran Khan, Manendra Pal Gupta,
Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
Satish Chandra Sharma, J.
1. Master Hrithik, aged 2.5 years, lost his life on the fateful day of
03.11.2002 in Hubli, Karnataka. PW-1, his father and complainant in
this case, filed a complaint and the allegation was levelled against
the appellant/accused, who is the younger brother of PW-1. After a
full-fledged trial, Trial Court acquitted the appellant from the charges
levelled upon him. The High Court reversed the order of acquittal and
[2024] 2 S.C.R. 395
Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli
convicted the appellant. The mystery of Hrithik’s death continues as the
matter has landed before this Court in the form of the present appeal,
which assails the order dated 28.03.2011 passed by the High Court of
Karnataka (Circuit Bench at Dharwad) in Criminal Appeal No. 130/2005.
FACTUAL MATRIX
2. At the outset, we consider it apposite to note that there is considerable
divergence between the parties (as well as between the decisions
rendered by the Trial Court and the High Court) as regards the
sequence of events and timelines involved in this case. To avoid
any confusion or presumption, the facts delineated herein represent
the version of the prosecution for the purpose of understanding the
story. On 03.11.2002, at around 11 A.M., the son of PW-1 had gone
out for playing and went missing. PW-1 and other family members
of the child searched for him in and around the locality. Upon finding
no trace of the child till evening, a missing complaint was lodged at
around 10 P.M. by PW-1 at PS Vidyanagar, Hubli, Karnataka. The
complaint came to be registered as Crime No. 215/2002.
3. Fast forward to 14.11.2002, the appellant (also the brother of
PW-1) appeared at the house of PW-1 in a drunken state and
started blabbering about the missing incident of Hrithik and about
mishappening with the child. The encounter on 14.11.2002 happened
late at night and PW-1 did not pursue the same at that point of time.
On the morning of 15.11.2002, PW-1 went to his shop and returned
around 12:30 P.M. At this point, PW-1, his mother and wife enquired
about the child from the appellant and the appellant stated that he
had murdered Hrithik and thrown his body in the well. Thereafter,
PW-1 took the appellant to PS Vidyanagar for filing the complaint
which led to the registration of the First Information Report (FIR) in
this case.
4. It is the case of the prosecution that on reaching the police station,
the appellant confessed to the commission of crime as well as the
act of throwing the child in the well. The voluntary statement of the
accused, in the nature of extra judicial confession, was recorded
by PW-16 (Investigating Officer/IO of the case) as Ex.P.21. At the
instance of the appellant, PW-16 took PW-1, mother and wife of
PW-1 and panchas in a police jeep to a place near the back side
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of Kamat Cafe. On reaching there, the appellant took PW-16, PW-1
and panchas near the well and told them that the dead body of the
deceased was thrown in the said well. When they looked into the
well, a dead body of a child was found floating there. The dead body
was taken out and inquest panchnama was conducted. Thereafter,
spot panchnama was prepared and the body was sent for post
mortem. Thereafter, accused no. 2 and 3 were arrested and upon
their disclosure and at their instance, jewelry articles exhibited as
M.O.s 5 and 6 were recovered from PW-17, which were allegedly
taken off from the body of the deceased child and were sold off to
PW-17.
5. In this factual backdrop, PW-16 investigated the case and filed the
chargesheet. Upon committal of the case to the Court of Sessions,
charges were framed upon the three accused persons under Sections
201, 302, 363, 364 read with 34 of Indian Penal Code, 18601. Upon the
culmination of trial, the Trial Court acquitted all the accused persons
vide order dated 30.04.2004 passed by Ld. ASJ-01, Dharwad (Hubli).
6. While ordering acquittal of the accused persons, the Trial Court gave
the following reasons:
i. There is no eye witness to support the case of the prosecution
and the case is entirely based on circumstantial evidence.
ii. The prosecution case is built upon the extrajudicial confession
of the appellant and factum of recovery of the dead body from
the well in consequence of the information disclosed by the
appellant.
iii. The credibility of an extra judicial confession depends upon
the veracity of the witnesses before whom it is given and
the circumstances in which it was given. The statements of
PW-1 in the Court and in the complaint Ex.P1 are different.
In the complaint, PW-1 had mentioned about the involved
of co-accused persons, whereas his testimony in the Court
was completely silent regarding the involved of other accused
persons.
1 Hereinafter referred as “IPC”
[2024] 2 S.C.R. 397
Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli
iv. PW-1 stated that his wife and mother were also present when
the confession was made by the appellant. However, neither
wife nor mother of PW- 1 was examined by the prosecution
as a witness.
v. PW-1 deposed that after the confession was made by the
appellant, he took the appellant to the police station where he
disclosed the involvement of accused no. 2 and 3. However,
in the complaint Ex.P1 which was given by him at the police
station, there is no mention of accused no. 3. The contradiction
in this regard is material as, if the appellant had disclosed the
involvement of accused no. 2 and 3 before going to the police
station, there was no reason for PW-1 to skip the name of
accused no. 3 from Ex.P1.
vi. The Trial Court noted the multiplicity of versions by PW-1 and
held that an extra judicial confession must be free from suspicion,
which is not the case in the testimony of PW-1.
vii. The Trial Court also noted the discrepancy regarding the arrest
of the accused. PW-1 deposed that he took the appellant to the
police station after his disclosure, whereas PW-16 deposed that
after registering the complaint, he had arrested the appellant
from his house.
viii. No mention of the incident of utterance of certain words by
the appellant on 14.11.2002 in the complaint given by PW-1
on the following day.
ix. PW-1 took no steps in furtherance of the information supplied
by PW-5 that he had seen the appellant taking away the child
on 03.11.2002 or in furtherance of the information supplied by
PW-7, who had informed PW-1 on 10.11.2002 that he had seen
three people throwing something into the well. The conduct of
PW-1 was not found to be natural.
x. PW-1 failed to explain the discrepancy in the clothes allegedly
worn by the deceased and the clothes found on the body of
the deceased. Moreover, PW-12 deposed that at the time of
filing the complaint, he had enquired from PW-1 regarding any
ornaments on the child. PW-1 had replied in negative.
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xi. The theory of last seen was also rejected by the Trial Court and
PWs in that regard - PW-5, PW- 6, PW-7 and PW-18 - were
disbelieved.
7. The decision of the Trial Court was assailed before the High Court
by the State in appeal. The High Court analyzed the evidence on
record and partially allowed the appeal by holding the appellant guilty
for the commission of offences punishable under Sections 201, 302,
363, 364 of IPC. Notably, the High Court was in agreement with the
conclusion of acquittal regarding accused no. 2 and 3.
8. On a re-appreciation of evidence pitched against accused no.
2 and 3, the High Court agreed with the view of the Trial Court
that the evidence was not trustworthy. The theory of last seen,
as propounded to bring accused no. 2 and 3 within the ambit of
criminality, was rejected. Similarly, the allegation of recovery of
ornaments from PW-17 at the instance of the accused was also
rejected. Since, there is no divergence of opinion with respect to
accused no. 2 and 3, this Court is not required to delve further
into the same. The High Court set aside the view of the Trial Court
regarding the rejection of the voluntary extra judicial confession
of appellant and recovery of dead body of the deceased at his
instance. The High Court went on to convict the appellant on the
strength of the following reasons:
i. The extra judicial confession of the appellant was a voluntary
confession and there is no reason to doubt the same.
ii. Information disclosed by the appellant led to the discovery of
dead body of the deceased and minor discrepancies in the
version of PW-1 are not material.
iii. The Trial Court committed an error by not properly appreciating
the evidence of PW-1, especially the voluntary statement and
recovery of dead body.
SUBMISSIONS OF APPELLANT
9. Assailing the order of the High Court, the appellant submits that the
High Court did not appreciate the discrepancies in the evidence of
PW-1 and went on to accept the same. He further submits that the
High Court failed to take note of the improvements made by PW-1 at
[2024] 2 S.C.R. 399
Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli
every stage. He further submits that the Trial Court had elaborately
appreciated the entire evidence on record and it was not open for
the High Court to reappreciate the entire evidence and arrive at a
different conclusion of its own. Further, it is submitted that the High
Court did not notice the absence of mother and wife of PW-1 from
the list of witnesses of the prosecution.
10. The appellant further submits that the finding of the Trial Court regarding
the sequence of arrest of the appellant has not been discussed at
all in the impugned order. It is further submitted that the High Court
did not examine the extra judicial confession of the appellant in its
correct perspective, especially in light of the suspicion raised by the
Trial Court. It is urged that the High Court did not subject the extra
judicial confession to a stern test and went on to place undue reliance
on the same. It is further contended that the High Court overlooked
the discrepancy between the description of clothes found on the dead
body and that indicated by PW-1 in his complaint. Lastly, it is submitted
that if two views were possible on a reappreciation of evidence, the
High Court must have adopted the view in favour of the accused,
thereby providing benefit of doubt to the appellant.
11. Per contra, it is submitted on behalf of the State that there is no
infirmity in the impugned order as it is based on a correct appreciation
of evidence. It is further submitted that the voluntary extra judicial
confession of appellant constituted crucial evidence and the fact
that it led to the discovery of the dead body of the deceased, added
credibility to the same. Reliance has been placed upon the decisions
of this Court in Sansar Chand v. State of Rajasthan2 and Piara
Singh v. State of Punjab3
. It is further submitted that the Court
must not consider every doubt as a reasonable doubt and minor
discrepancies must not be allowed to demolish the entire testimony
of a witness. In this regard, reliance has been placed upon the
decisions of this Court in Mallikarjun v. State of Karnataka4
and
Hari Singh & Anr. v. State of Uttar Pradesh5
.
2 [2010] 12 SCR 583 : (2010) 10 SCC 604
3 [1978] 1 SCR 597 : (1977) 4 SCC 452
4 [2019] 11 SCR 609 : (2019) 8 SCC 359
5 [2021] 10 SCR 1022 : Criminal Appeal No. 186 of 2018 (SC)
400 [2024] 2 S.C.R.
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12. We have heard Sh. Sharan Thakur, Advocate for the appellant and
Mr. Muhammed Ali Khan, AAG, for the respondent State.
DISCUSSION
13. We may now proceed to delineate the issues that arise for the
consideration of this Court, as follows:
i. Whether the extra judicial confession of the appellant/accused
was admissible, credible and sufficient for conviction of the
accused thereon?
ii. Whether the testimony of PW-1 could be termed as reliable
and trustworthy?
iii. Whether the chain of circumstantial evidence is complete and
consistent for arriving at the conclusion of guilt?
14. The conviction of the appellant is largely based on the extra judicial
confession allegedly made by him before PW-1. So far as an extra
judicial confession is concerned, it is considered as a weak type
of evidence and is generally used as a corroborative link to lend
credibility to the other evidence on record. In Chandrapal v. State
of Chattisgarh6, this Court reiterated the evidentiary value of an
extra judicial confession in the following words:
“11. At this juncture, it may be noted that as per Section
30 of the Evidence Act, when more persons than one are
being tried jointly for the same offence, and a confession
made by one of such persons affecting himself and some
other of such persons is proved, the court may take into
consideration such confession as against such other
person as well as against the person who makes such
confession. However, this court has consistently held that
an extra judicial confession is a weak kind of evidence
and unless it inspires confidence or is fully corroborated
by some other evidence of clinching nature, ordinarily
conviction for the offence of murder should not be made
only on the evidence of extra judicial confession. As held
in case of State of M.P. Through CBI v. Paltan Mallah, the
6 [2022] 3 SCR 366 : (2022) SCC On Line SC 705
[2024] 2 S.C.R. 401
Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli
extra judicial confession made by the co-accused could
be admitted in evidence only as a corroborative piece of
evidence. In absence of any substantive evidence against
the accused, the extra judicial confession allegedly made
by the co-accused loses its significance and there cannot
be any conviction based on such extra judicial confession
of the co-accused.”
15. It is no more res integra that an extra judicial confession must
be accepted with great care and caution. If it is not supported by
other evidence on record, it fails to inspire confidence and in such
a case, it shall not be treated as a strong piece of evidence for
the purpose of arriving at the conclusion of guilt. Furthermore, the
extent of acceptability of an extra judicial confession depends on
the trustworthiness of the witness before whom it is given and the
circumstances in which it was given. The prosecution must establish
that a confession was indeed made by the accused, that it was
voluntary in nature and that the contents of the confession were
true. The standard required for proving an extra judicial confession
to the satisfaction of the Court is on the higher side and these
essential ingredients must be established beyond any reasonable
doubt. The standard becomes even higher when the entire case of
the prosecution necessarily rests on the extra judicial confession.
16. In the present case, the extra judicial confession is essentially
based on the deposition of PW-1, the father of the deceased.
Without going into the aspect of PW-1 being an interested witness
at the threshold, his testimony is fatal to the prosecution case on
multiple parameters. PW-1 deposed that the appellant had arrived
at his residence on 14.11.2002 and mentioned about the deceased.
Despite so, the appellant was allowed to leave the residence and no
action whatsoever was taken by PW-1. The incident took place on
03.11.2002 and despite lapse of 11 days, PW-1 had no clue about
his deceased son. On the eleventh day, when the appellant arrives at
his residence and mentions adversely about his deceased son, PW-1
does nothing about it. In fact, on the next day as well, PW-1 started
off normally and went to his shop in a routine manner. Thereafter, he
came back home in the afternoon of 15.11.2002 and confronted the
appellant about the incident. There is no explanation as to how the
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appellant arrived at his residence again on 15.11.2002. Nevertheless,
PW-1 deposed that when he, his mother and wife confronted the
appellant, he confessed to the murder of the deceased. Thereafter,
they took him to the police station.
17. Before we refer to the proceedings which took place at the police
station, it is of utmost relevance to note that the confession was
made before PW-1, his mother and wife. However, the mother and
wife of PW-1 were never examined as witnesses by the prosecution.
This glaring mistake raises a serious doubt on the very existence of
a confession, or even a statement, of this nature by the appellant.
18. Once the appellant was taken to the police station, as the examination
in chief of PW-1, the appellant confessed to the act of throwing the
deceased in the well along with accused no. 2 and 3. Notably, there
was no mention of the co-accused persons in the original statement
of the appellant, as per the examination in chief of PW-1. One finds a
third version of the same fact when the complaint Ex.P1 is perused.
The said complaint was given by PW-1 at the police station of
15.11.2002. As per this complaint, the appellant was queried by PW-1
and his mother (presence of wife not mentioned). Furthermore, as per
the complaint, the appellant confessed to the commission of offence
along with one other accused (accused no.2) only. The complaint
Ex.P1 is also silent on the episode that took place at the residence
of PW-1 on 14.11.2002, a day prior to the filing of complaint. There
is no explanation as to how and in what circumstances the incident
of 14.11.2002 was omitted from Ex.P1. The omission assumes great
importance in light of the fact that the incident of 14.11.2002 was
the precursor of the confrontation that followed the next day, which
culminated into the act of filing the complaint. The complaint Ex.P1
is also silent on the information received by PW-1 from PW-5 and
PW-6 that they had seen his child going with the appellant on the
date of incident. The introduction of these witnesses was an exercise
of improvement, as we shall see in the following discussion.
19. The confession was followed by two things – arrest of the appellant
and recovery of dead body of the deceased. The evidentiary aspects
concerning these facts are equally doubtful. As per the testimony of
PW-1, he had taken the appellant to the police station and he was
arrested there. Contrarily, PW-16/I.O. deposed that after recording
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Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli
the complaint, he had arrested the appellant from his house. The
mode and manner of arrest, especially the place of arrest, is doubtful.
It also raises a question on the aspect of confession - whether the
confession was recorded when the appellant himself visited the police
station with PW-1 or when he was arrested from his house and was
taken to the police station by PW-16. The confessions, one made
after a voluntary visit to the police station and the other made after
arrest from the house, stand on materially different footings from
the point of view of voluntariness. The likelihood of the latter being
voluntary is fairly lesser in comparison to the former.
20. The next element which weighed upon the High Court in reversing
acquittal is the recovery of dead body of the deceased at the instance
of the appellant. Notably, the element of recovery is based on the
same statement/confession of the appellant which, as observed above,
fails to inspire the confidence of the Court. The Trial Court has rightly
analyzed the evidence regarding the recovery of dead body and the
High Court fell in an error in accepting the evidence on its face value,
without addressing the reasonable doubts raised by the Trial Court.
21. The recovery of dead body from the well is not in question. However,
the proof of such recovery to be at the instance of the appellant is
essentially based on the disclosure statement made by the appellant.
Again, the prime witness for proving the disclosure statement is
PW-1, whose testimony has failed to inspire the confidence of the
Court, in light of the contradictions, multiplicity of versions and
material improvements. The other witness to prove the recovery is
PW-2, the panch. Notably, PW- 2 was a waiter at a restaurant and
he deposed that he had visited the police station himself. It is difficult
to accept that PW-2 just happened to visit the police station on his
own and ended up becoming a witness of recovery of the dead
body. Firstly, his visit to the police station does not fit in the normal
chain of circumstances as it is completely unexplained. A police
station is not per se a public space where people happen to visit
in the ordinary course of business and therefore, an explanation is
warranted. Secondly, a normal person would generally be hesitant in
becoming a witness to the recovery of a dead body. There is nothing
on record to indicate that any notice to join investigation was given
to PW-2 by the I.O./PW-16. In such circumstances, it would not be
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safe to rely upon the testimony of PW-2 as he could reasonably be
a stock witness of the I.O.
22. Furthermore, we deem it appropriate to note that the identity of the
dead body recovered from the well is also not beyond question. The
Trial Court had also noted the doubts regarding the identity of the
dead body, however, the identity of the deceased was held to be
established in light of the fact that the identification was done by PW1, father of the deceased. The Trial Court also relied upon the fact
that the identification was not challenged by either side. Be that as it
may, we consider it important to note that there exist serious doubts
regarding the identity of the dead body recovered from the well. The
description of the deceased given by PW-1 in his complaint Ex.P1
did not match with the description of the dead body. The clothes
found on the dead body were substantially different from the clothes
mentioned by PW-1 in his complaint. The presence of ornaments
was not mentioned in the complaint. Furthermore, identification of
the dead body by face was not possible as the body had started
decomposing due to lapse of time. Admittedly, the dead body was
recovered after 12 days of the incident from a well. Sensitive body
parts were found bitten by aquatic animals inside the well. The theory
of ornaments has already been held to be a figment of imagination
by the Trial Court and the High Court in an unequivocal manner.
Therefore, the prosecution case regarding the identity of the dead
body is not free from doubts.
23. Another circumstance which weighs against PW-1 in a material
sense is the deafening silence on his part when PW-5 and PW-6
informed him regarding the factum of the deceased being thrown
into the well. Notably, the said fact was brought to the knowledge of
PW-1 well before 15.11.2002. Despite so, PW-1 maintained silence
and did not even approach the police for investigation or information
on such a crucial aspect of investigation. An anxious father would
have rushed to the police station on receiving an information of this
nature. The subsequent conduct of PW-1, after the receipt of such
material information, is unnatural. Furthermore, PW-5 only saw the
appellant taking away the child, PW-6 also saw the appellant only
and PW-7 saw three persons throwing the child in the well. The
versions are manifold. In such circumstances, it cannot be held that
the testimony of PW-1 is trustworthy and reliable.
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Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli
24. Notably, it is a peculiar case wherein the appellant has been convicted
for the commission of murder without ascertaining the cause of death
in a conclusive manner. The report prepared by PW-14 reveals
drowning as the cause of death. For attributing the act of throwing
the deceased into the well upon the appellant, the prosecution has
relied upon PW-7 and PW-18, the witnesses in support of the last
seen theory. The testimonies of these witnesses have been held to
be incredible by both Trial Court and the High Court. We suffice to
observe that we agree with the findings of the said Courts on this
point. Furthermore, the post mortem reveals the time of death within
a time frame of 3 to 12 days. Allegedly, the death took place on
03.11.2002. Such a wide time frame concerning the crucial question
of time of death raises a serious doubt on the reliability of the post
mortem report. When this fact is seen in light of the already existing
doubts on the identity of the deceased, one is constrained to take
the report with a pinch of salt. More so, this discrepancy again brings
into question the element of recovery of the dead body and identity
of the deceased.
25. This Court cannot lose sight of the fact that the Trial Court had
appreciated the entire evidence in a comprehensive sense and
the High Court reversed the view without arriving at any finding of
perversity or illegality in the order of the Trial Court. The High Court
took a cursory view of the matter and merely arrived at a different
conclusion on a re-appreciation of evidence. It is settled law that the
High Court, in exercise of appellate powers, may reappreciate the
entire evidence. However, reversal of an order of acquittal is not to
be based on mere existence of a different view or a mere difference
of opinion. To permit so would be in violation of the two views theory,
as reiterated by this Court from time to time in cases of this nature.
In order to reverse an order of acquittal in appeal, it is essential to
arrive at a finding that the order of the Trial Court was perverse or
illegal; or that the Trial Court did not fully appreciate the evidence on
record; or that the view of the Trial Court was not a possible view.
26. At the cost of repetition, it is reiterated that the anomaly of having
two reasonably possible views in a matter is to be resolved in favour
of the accused. For, after acquittal, the presumption of innocence in
406 [2024] 2 S.C.R.
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favour of the accused gets reinforced. In Sanjeev v. State of H.P.7
,
this Court summarized the position in this regard and observed as
follows:
“7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the
reasons which had weighed with the trial court in acquitting
the accused must be dealt with, in case the appellate court
is of the view that the acquittal rendered by the trial court
deserves to be upturned (see Vijay Mohan Singh v. State
of Karnataka8, Anwar Ali v. State of H.P.9)
7.2. With an order of acquittal by the trial court, the
normal presumption of innocence in a criminal matter gets
reinforced (see Atley v. State of U.P.10)
7.3. If two views are possible from the evidence on record,
the appellate court must be extremely slow in interfering
with the appeal against acquittal (see Sambasivan v.
State of Kerala11)”
27. It may be noted that the entire case of the prosecution is based on
circumstantial evidence. The principles concerning circumstantial
evidence are fairly settled and are generally referred as the
“Panchsheel” principles. Essentially, circumstantial evidence comes
into picture when there is absence of direct evidence. For proving a
case on the basis of circumstantial evidence, it must be established
that the chain of circumstances is complete. It must also be
established that the chain of circumstances is consistent with the
only conclusion of guilt. The margin of error in a case based on
circumstantial evidence is minimal. For, the chain of circumstantial
evidence is essentially meant to enable the court in drawing an
inference. The task of fixing criminal liability upon a person on the
strength of an inference must be approached with abundant caution.
7 (2022) 6 SCC 294
8 (2019) 5 SCC 436
9 (2020) 10 SCC 166)
10 AIR 1955 SC 807
11 [1998] 3 SCR 280 : (1998) 5 SCC 412
[2024] 2 S.C.R. 407
Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli
As discussed above, the circumstances sought to be proved by the
prosecution are inconsistent and the inconsistencies in the chain
of circumstances have not been explained by the prosecution. The
doubtful existence of the extra judicial confession, unnatural conduct
of PW-1, recovery of dead body in the presence of an unreliable
witness PW-2, contradictions regarding arrest, unnatural prior and
subsequent conduct of PW-1, incredible testimony of the witnesses in
support of the last seen theory etc. are some of the inconsistencies
which strike at the root of the prosecution case. To draw an inference
of guilt on the basis of such evidence would result into nothing but
failure of justice. The evidence on record completely fails the test
laid down for the acceptability of circumstantial evidence. Therefore,
in light of the consolidated discussion, all three issues are hereby
answered in negative.
28. Before parting, we consider it our duty to refer to the catena of
judgments relied upon by the respondent to contend that minor
inconsistencies could not be construed as reasonable doubts for
ordering acquittal. Reference has been made to Sucha Singh v.
State of Punjab12, Mallikarjun13 and Hari Singh v. State of Uttar
Pradesh14.
29. No doubt, it is trite law that a reasonable doubt is essentially a serious
doubt in the case of the prosecution and minor inconsistencies are
not to be elevated to the status of a reasonable doubt. A reasonable
doubt is one which renders the possibility of guilt as highly doubtful.
It is also noteworthy that the purpose of criminal trial is not only to
ensure that an innocent person is not punished, but it is also to ensure
that the guilty does not escape unpunished. A judge owes this duty
to the society and effective performance of this duty plays a crucial
role in securing the faith of the common public in rule of law. Every
case, wherein a guilty person goes unpunished due to any lacuna on
the part of the investigating agency, prosecution or otherwise, shakes
the conscience of the society at large and diminishes the value of
the rule of law. Having observed so, the observations in this regard
12 [2003] Suppl. 2 SCR 35 : (2003) 7 SCC 643
13 [2019] 11 SCR 609 : Supra
14 [2021] Suppl. 10 SCR 1022 : Supra
408 [2024] 2 S.C.R.
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may not advance the case of the respondent in the present appeal.
It is so because the inconsistencies in the case of the prosecution
are not minor inconsistencies. As already discussed above, the
prosecution has miserably failed to establish a coherent chain of
circumstances. The present case does not fall in the category of a
light-hearted acquittal15, which is shunned upon in law.
30. In light of the foregoing discussion, we hereby conclude that the High
Court has erred in reversing the decision of acquittal. The evidence
of the prosecution, at best, makes out a case for suspicion, and not
for conviction. Accordingly, the impugned order and judgment are
set aside. We find no infirmity in the order of the Trial Court and
the same stands restored. Consequently, the appellant is acquitted
from all the charges levelled upon him. The appellant is directed to
be released forthwith, if lying in custody.
31. The captioned appeal stands disposed of in the aforesaid terms.
Interim applications, if any, shall also stand disposed of.
32. No order as to costs.
Headnotes prepared by: Divya Pandey Result of the case:
Appeal disposed of.
15 ‘Proof of Guilt’, Glanville Williams.
