circumstantial evidence - This incident had occurred in a broad day light at 9.30 a.m. in the month of August in the agricultural field surrounded by agricultural field of others. Therefore, the presence of a large number of persons in the close vicinity of the place of occurrence can be presumed and it is apparent also from the statement of Aliful Rahmal (PW.6). Thus, had the deceased been with the appellant, somebody could have seen her at the place of occurrence. It cannot be a positive evidence as concluded by the courts below that none other than the appellant could commit her murder because no one else had been there at the place of occurrence. In fact, nobody had ever seen the deceased at the place of occurrence. Digging the earth by a single person to the extent that a dead body be covered by earth requires a considerable time and there was a possibility that during such period somebody could have seen the person indulged in any of these activities, though no evidence is there to that extent. The circumstances from which the conclusion of guilt is to be drawn in such a case should be fully established. The circumstances concerned "must or should" and "not and may be" established. In the instant case, the circumstances have not been established.

                                                                REPORTABLE




                IN THE SUPREME COURT OF INDIA

              CRIMINAL APPELLATE JURISDICTION


                 CRIMINAL APPEAL NO. 831 of 2007




SK. Yusuf                                                                ...Appellant


                                      Versus


State of West Bengal                                                      ...Respondent





                               J U D G M E N T




Dr. B.S. CHAUHAN, J.




1.            This criminal appeal has been preferred against the judgment


and order dated 28.06.2006 passed by the High Court of Calcutta in


C.R.A.No.   229   of   2000,   by   which   it   dismissed   the   appeal   of   the


appellant   against   the   judgment   and   order   of   conviction   dated


26.5.2000   passed   by   the   Additional   Sessions   Judge,   First   Court,


Burdwan   in   Sessions   Trial   No.   7   of   1999,   convicting   the   appellant


under   Sections   302   and   201   of   the   Indian   Penal   code,   1860


(hereinafter referred to as `IPC') and appellant has been imposed the


sentence   to   suffer   rigorous   imprisonment   for   life   under   Section   302


IPC   and   sentence   of   one   year   under   Section   201   IPC.     Both   the


sentences have been directed to run concurrently.




2.     The facts and circumstances giving rise to this case are that:


(A)    On   31.08.1991,   Sahanara   Khatun,   daughter   of   Abdul   Rajak,


resident   of   village   Batrish   Bigha,   PS:   Jamalpur,   aged   13   years,   had


gone to pluck jhinga at about 9.30 A.M. from her jhinga field. She did


not return till 10.30 A.M., her father Abdul Rajak alongwith Habibur


Rahaman   and   Sirajul   Islam   went   to   search   her,   however,   could   not


trace her in the jhinga field. They looked for her in bamboo grove  in


nearby graveyard and found a freshly dug earth, thus, they removed


the soil and found the dead body of Sahanara Khatun.


(B)    Imdad   Ali   (PW.1)   lodged   the   FIR   on   the   same   day   at     12.05


hours   under   Sections   302   and   201   IPC   at   Police   Station   Jamalpur,


District   Burdwan   at   a   distance   of   8   kilometres   from   the   place   of


occurrence,   wherein   the   appellant   was   named   as   accused   on   the


suspicion   that   appellant   was   seen   by   Abdul   Rashid   (PW.5)   and


Swapan  Murmu catching  fish in  the canal  adjoining   his  jhinga  field


and was also seen talking with deceased.  The appellant was having a


spade in his hand, when it is inquired from the appellant, he replied


that he had gone to catch the fish near railway track.   Subsequently,





                                                                                    2


the   appellant   absconded.   In   the   FIR,   it   had   already   been   mentioned


before   committing   the   murder,  Yusuf,   the   appellant   tried   to   commit


rape and on being resisted by the deceased, the appellant assaulted her


on her head with spade and murdered and buried her in the graveyard.


Thus, investigation ensued. The appellant was arrested on 7.9.1991 by


the villagers in the paddy fields near Batrish Bigha and handed over to


the police. It was on his disclosure that an old spade, one ghuni and


one   enamel   thala   (plate)   were   recovered.     After   completing   the


investigation, chargesheet was filed against the appellant. He denied


his involvement in the crime pleading not guilty. Thus, he was put to


trial.  The prosecution examined 19 witnesses to prove its case.


(C)    After   conclusion   of   the   trial,   the   Additional   Sessions   Judge,


Burdwan,   vide   judgment   and   order   dated   26.5.2000   found   the


appellant   guilty   of   offences   punishable   under   Sections   302   and   201


IPC   and   sentenced   him   to   life   imprisonment   and   fine   of   Rs.1,000/-


under   Section   302   IPC   and   further   sentenced   to   one   year   rigorous


imprisonment and fine of Rs.500/- under Section 201 IPC.


(D)    Being   aggrieved   from   the   aforesaid   judgment,   the   appellant


preferred   Criminal   Appeal   No.   229   of   2000   in   the   High   Court   of


Calcutta   which   has   been   dismissed   vide   judgment   and   order   dated


28.6.2006. Hence, this appeal.




                                                                                   3


3.      Shri R.K. Gupta, learned Amicus Curiae, has submitted that it


is a case of circumstantial evidence.   There is no evidence on record


that   Sahanara   Khatun,   deceased,   was   seen   with   the   appellant   at   the


place of occurrence. The spade recovered by the Investigating Officer


during investigation had not been sent for chemical analysis.  The trial


court   as   well   as   the   High   Court   placed   a   very   heavy   reliance   upon


extra-judicial confession allegedly made by the appellant before Nurul


Islam (PW.11) and Ali Hossain (PW.13) and others though there was


no such confession.  Nurul Islam is the brother-in-law of Abdul Rajak


(PW.2), father of the deceased.  Ali Hossain (PW.13) is a resident of


the village of Nurul Islam (PW.11).  He did not support the version of


extra-judicial confession put forward by Nurul Islam (PW.11).  There


are contradictory statements regarding catching hold of the appellant


at Jamalpur after one week of the incidence.  There is  no evidence of


sexual   assault   on   the   deceased.   Dr.   Samudra   Chakraborty   (PW.18),


who   conducted   the   post-mortem   on   the   body   of   Sahanara   Khatun


(deceased) did not mention in his report that any sexual assault was


made on the deceased  prior to her death.  Thus, the appeal deserves to


be allowed.





                                                                                      4


4.      On   the   contrary,   Shri   Tara   Chandra   Sharma,   learned   counsel


appearing   for   the   State,   has   vehemently   opposed   the   appeal


contending   that   there   are   concurrent   findings   of   fact   which   do   not


require any interference by this Court.  Undoubtedly, the case is based


on   circumstantial   evidence   but   chain   is   complete   and   the


circumstantial evidence is so strong that it unmistakably points to the


guilt   of   the   appellant   and   that   circumstances   are   incapable   of


explanation upon any other reasonable hypothesis  that of the guilt of


the   appellant.     There   have   been   sufficient   material   on   the   basis   of


which the two courts below have convicted the appellant and the said


judgments do not require any interference.  The appeal lacks merit and


is liable to be dismissed.




5.      We   have   considered   the   submissions   made   by   the   learned


counsel   for   the   parties   and   perused   the   record.       Before   proceeding


further, it may  be necessary to refer to the findings recorded  by  the


courts below briefly.




6.      Trial Court's findings:


I.      It appears  from the evidence  of Nurul  Islam (PW.11)  and Ali


Hossain (PW.13)  that the accused  made  an extra-judicial  confession


before   them  and   also   before   other   villagers   when   he  was   caught  by




                                                                                     5


them   about   7   days   after   his   leaving   away   from   his   village   after   the


date   of  occurrence.     The   court   further   held   that   there   was  no   direct


evidence and it was a case of circumstantial evidence and there was


enough evidence on record, particularly, of Imdad Ali (PW.1), Abdul


Rajak   (PW.2),   Habibar   Rahaman   (PW.3),   Abdul   Majid   Mallick


(PW.4),   Abdul   Rashid   (PW.5),   Alirul   Rahmal   (PW.6)   and   Abdul


Salam   Mallick   (PW.7)   that   accused   was   present   near   the   place   of


occurrence at the relevant time when Sahanara Khatun, deceased went


to jhinga field and the accused was carrying at that time one spade.




II.     It   appears   from   the   evidence   of   Abdul   Rashid   (PW.5)   and


Alirul   Rahmal   (PW.6)   that   there   was   no   one   else   at   the   place   of


occurrence adjacent to jhinga field and the accused was carrying one


spade   on   the   basis   of   which   the   trial   Court   came   to   the   following


conclusion:


       "So there may be a reasonable inference that the accused,

       who   had   one   spade   in   his   hand   and   who   was   engaged   in

       catching  fish near  the  P.O.,  suddenly   attacked  the victim-

       Sahanara when she came to the jhinga field and thereafter

       attempted to rape her and when he was resisted by her he

       became violent and murdered Sahanara with the help of his

       spade.     The   medical   evidence   given   by   Dr.   Samudra

       Chakraborty   (PW.18)   will   corroborate   that   Sahanara   was

       murdered   by   Yusuf   with   a   sharp-cutting   weapon,   which

       may be a spade and also by suffocation. The accused only

       had the opportunity to assault Sahanara in such a way as he

       carried   the   spade   with   him   at   that   time   and   there   is   no




                                                                                         6


         evidence   from   any   side   that   except   the   accused   such   a

         spade was carried at that time by anybody else. Moreover,

         the   accused   himself   had   admitted   in   his   extra-judicial

         confession   before     Nurul   Islam   (PW.11)   and   Ali   Hossain

         (PW.13)   and   others   that   he   murdered   Sahanara   at   the

         relevant time when he was resisted by her from committing

         rape upon her at the relevant time".  




III.     Extra-judicial confession came from the mouth of the witnesses


who   appeared   to   be   unbiased   and   not   even   remotely   inimical   to   the


accused. Undoubtedly,   Nurul Islam (PW.11) was a maternal uncle of


the deceased but another witness in this regard i.e. Habibar Rahaman


(PW.3) had no relationship with the family of the victim. Therefore, his


evidence to the extent of extra-judicial confession would be legally and


validly   taken   into   consideration.   The   trial   Court   basically   found   the


incriminating   circumstance   against   the   appellant   as   he   is   absconding


and   ultimately   it   found   that   there   was   cogent   evidence   against   the


appellant.




7.              High Court's findings:


        The High Court has  accepted  the judgment  of the trial  Court in


 toto   observing   that   depositions   of   the   witnesses,   particularly,   Abdul


 Majid Mallick (PW.4) and Abdul Rashid (PW.5) remained unshaken


 to the extent that at the material time  they found the accused near the


 place   of   graveyard   with   spade   in   his   hand.   Another   circumstance




                                                                                     7


which swayed with the High Court had been that just after the incident


the   appellant   ran   away.   The   High   Court     has   accepted   non-


examination of some material witnesses, particularly, Swapan Murmu,


Rejaul   and   Sirajul,   accepting   the   explanation   furnished   by   Abdul


Majid Mallick (PW.4) that at the relevant point of leading evidence,


none   of   these   persons   was   available   in   that   area.   The   extra-judicial


confession   made   by   the   appellant-accused   before   Nurul   Islam


(PW.11) and Ali Hossain (PW.13) in presence of others has also been


accepted.   Further,   the   High   Court   had   accepted   the   explanation


furnished by the prosecution that in case there has been some laches


on the part of the Investigating Officer in sending the spade etc. for


chemical analysis, no adverse presumption can be drawn against the


prosecution.   The motive had been found as to the possibility of the


accused   trying   to   commit   sexual   assault.   All   these   factors   had   been


found by the High Court of the conclusive nature as to exclude every


other possibility except the accused being guilty of the offence.




8.      The   case   requires   to  be   examined   as   to  whether   the  aforesaid


findings are sustainable in the eyes of law.




LAST SEEN THEORY:





                                                                                     8


9.       The   courts   below   have   concluded   that   there   was   sufficient


material on record to show that the deceased and the appellant were


seen   together   at   the   place   of   occurrence.   Abdul   Rashid   (PW.5)   is


alleged   to   have   stated   in   this   regard.     The   relevant   part   of   his


statement  reads as under:


       "When  I  was  returning   from  my  field  at  9.00  A.M.,  I  saw

       Yusuf, appellant, catching fish near the jhinga field adjacent

       to   the   graveyard.     I   talked   with   him   there   and   thereafter

       returned home.  I did not see anybody else near that place.

       At   about   10.45   A.M.,   I   heard   that   the   dead   body   of   the

       Sahanara Khatun was recovered from the graveyard as  she

       had   been   murdered   by   someone.     I   went   to   graveyard

       alongwith   others.     When   the   police   officer  asked   me   as   to

       who was the person, I told  him that I saw Yusuf, appellant,

       catching fish in a nala near the graveyard."(Emphasis added)




10.      Another star witness Abdul Majid Mallick (PW.4)  stated :


       "I   alongwith   Rezwan   Ali   went   to   the   house   of   Yusuf,

       appellant.   We   saw   at   the   time   that   Yusuf,   appellant,   was

       going to his house with a spade and thala.  Yusuf, appellant

       reported   to   us   that   he   went   to   catch   fish   beside   the   nala.

       Rasid and Swapan firmly stated that they saw Yusuf,   near

       the jhinga field.  I again went to the house of Yusuf, and saw

       he fled away. Therefore, we could not apprehend Yusuf, in

       our village."




11.      Abdul   Majid   Mallick   (PW.4),   a   resident   of   the   same   village


deposed   that   alongwith   other   persons   particularly   Rezwan   Ali,   he


went to the house of Yusuf, appellant, and saw that he was going to





                                                                                            9


his house with a spade and thala and Yusuf had told them that he had


gone to catch fish beside the nala.  He stated as under:


       "I do not know as to why Sahanara Khatun was murdered.

       Swapan Murmu is not a resident of our village.  I cannot say

       where he is now residing.   Rejowan Ali is an ailing person.

       Sirajul is now residing in Punjab. I saw Yusuf coming to his

       house carrying spade and a plate in his hand.   I heard from

       Rashid and Swapan that they had seen the accused near the

       place of occurrence."




12.      Imdad   Ali   (PW.1),   informant   has   deposed   that   Abdul   Rashid


(PW.5)   and   Swapan   Murmu   (not   examined)   saw   that   Yusuf   was


talking   with   the   deceased,   Sahanara   Khatun.     Abdul   Rajak   (PW.2),


father of the deceased had deposed as under:


              "I came to know that Yusuf murdered my daughter ...

       I   cannot   say   what   was   the   reason   for   murder   of   my

       daughter".




13.      The persons particularly Rezwan Ali and Sirajul who had told


these   witnesses   that   they   had   seen   the   appellant-accused   near   the


jhinga field at the relevant time had not been examined.   More so, it


has not been   stated by any of the aforesaid witnesses or persons not


examined   that   Sahanara   Khatun   (deceased)   was   also   seen   there


alongwith   Yusuf,   appellant.     It   has   not   been   deposed   by   any   of   the


witnesses that deceased was seen talking with the appellant at all.


 





                                                                                     10


14.     The   last   seen   theory   comes   into   play   where   the   time   gap


between the point of time when the accused and deceased were last


seen   alive   and   when   the   deceased   is   found   dead   is   so   small   that


possibility  of any  person other  than the accused  being the  author of


the   crime   becomes   impossible.   (Vide:  Mohd.   Azad  alias   Samin  v.


State of West Bengal, (2008) 15 SCC  449; and  State thr.  Central


Bureau of Investigation v. Mahender Singh Dahiya, (2011) 3 SCC


109).  




15.     From the above, it is evident that neither Abdul Majid Mallick


(PW.4)  nor Abdul Rashid (PW.5) had stated that either of them  had


seen Sahanara Khatun (deceased) alongwith Yusuf,  near the place of


occurrence in close proximity of time.  All the witnesses deposed that


appellant  alone was seen near the place of occurrence with spade   as


he had gone there for catching the fish.  Thus, there is no evidence to


the  extent  that  the  deceased  and   appellant   were  seen   together  at   the


place of occurrence or nearby the same in close proximity of  time.




16.     While   the   appellant-accused   was   examined   by   the   trial   Court


under Section 313 of Code of Criminal Procedure, 1973 (hereinafter


called   as   Cr.P.C.),   he   was   asked   the   question   that   during   that   time


Abdul Rashid  (PW.5)  and Swapan Murmu (not  examined)  had seen




                                                                                     11


him   talking   with   the   deceased.     The   appellant   replied   that   he   was


innocent.




17.       We   fail   to   understand   as   no   witness   had   deposed   seeing


Sahanara   Khatun,   deceased   talking   with   the   appellant/accused,   how


such a question could be put to the accused.


EXTRA-JUDICIAL CONFESSION:


18.       Nurul Islam (PW.11), maternal uncle of the deceased, resident


of village Rupsona, is not a witness of incident, rather deposed that he


was the person who chased and apprehended the appellant after about


7   days   of   the   incident.   The   relevant   part   of   his   statement   reads   as


under:


           "After 6-7 days, when I went to Shyamsundar Bazar for

           my business, I saw Yusuf on the roof of a bus.   He got

           down from the bus after seeing me.   He told me that he

           did   the   wrong   and   begged   apology   for   that  and

           pleaded   not   to   assault   him   but   take   him   to   Jamalpur

           Police   Station.   I     took   Yusuf   towards   Batrish   Bigha

           village by boat and when we  crossed the river Damodar,

           Yusuf   started   running.   I   chased   him   but   failed   to   catch

           him   and   then   cried   for   help.     Thereafter,   public   caught

           Yusuf   at   Jamalpur   Poolmatha.    When   we   took   him   to

           the village, Yusuf admitted to him and others that he

           murdered Sahanara Khatun and, thereafter, he asked

           the   persons   to   take   him   to   Jamalpur   Police   Station.

           Yusuf   told  them  that  he   attempted   to   commit   rape

           upon   Sahanara   Khatun  and   when   she   resisted,   he

           assaulted  her with the spade on her head and killed  her

           and concealed the dead body in the graveyard".          

                                                                         (Emphasis added)




                                                                                              12


            In his cross-examination, PW.11 repeated the same about the


confession made by Yusuf, appellant before him in presence of other


persons of the village.




19.      Ali Hossain (PW.13) is a resident of the village of Nurul Islam


(PW.11) and deposed :


        "......I   went   to   Shyamsundar   Bazar   for   purchasing   goats.

        At that time, we see the accused on the roof of a bus.  My

        friend Nurul Islam who was with me asked the accused to

        come down and he came down from the roof of the bus and

        requested us not to assault him and to take him at the Police

        Station   Jamalpur   and   thereafter   Nurul   Islam   took   the

        accused towards Jamapur Police Station."

 


 In the cross examination, his deposition is as under:


       "I   did   not   state   to   I.O.   that   after   crossing   the   river   at

       Karalaghat   the   accused   ran   towards   Jamalpur.     I   did   not

       chase the accused by crying - catch, catch. I did not state to

       I.O. that some persons of Jamalpur caught the accused. ....  I

       alone went to Shyamsundar Bazar.   Thereafter I purchased

       goats from Shyamsundar Bazar. I cannot say anything more

       about the occurrence."




20.      By  comparison of the statements  of Nurul Islam (PW.11) and


Ali Hossain, (PW.13), it is evident that Nurul Islam (PW.11) did not


state   anywhere   in   his   statement   in   the   court   that   at   the   time   of


apprehending the accused, Ali Hossian (PW.13) was also with him.  It





                                                                                           13


is  only  Ali  Hossain  (PW.13)  who  stated  that  his   friend  Nurul  Islam


(PW.11) was with him.  He further stated that it was Nurul Islam who


asked   the   accused   to   come   down   from   the   roof   of   the   bus   and   the


accused   came   down.     The   statement   of     Nurul   Islam   (PW.11)   is


otherwise that he saw Yusuf, appellant, on the roof of the bus. Yusuf,


appellant, got down from the bus after seeing him and told him that he


did the wrong and begged apology for that.  Ali Hossain (PW.13) did


not speak anywhere regarding any confession, though stated that the


accused   requested   them   not   to   assault,   rather   to   take   him   to   police


station.       The   material   contradictions   are   there   in   respect   of   the


manner   in   which   the   appellant   had   been   apprehended.     Ali   Hossain


(PW.13) did not state that appellant made an attempt to runaway after


making the said witness.




21.     Digambar   Mondal   (PW.19),   the   Investigating   Officer   has


deposed   that   he   had   noticed   the   marks   of   injury   on   the   cheek,


forehead and head of the deceased. The wearing apparels of the victim


were   not   soaked   with   blood.   He   only   sent   the   wearing   pant   of   the


victim for chemical examination. He seized spade but did not sent it


for chemical analysis. In his cross-examination he has stated as under:


              "The   witness   Nurul   Islam   stated   to   me   that   the

       accused   was   caught   by   some   persons   at   Jamalpur   Pool-




                                                                                     14


       matha   and   thereafter   police   came   and   at   that   time   the

       accused   stated  before   those   persons   and   police  that   he

       tried to commit rape Sahanara on 31.8.1998 and when she

       resisted the accused hit her with a spade and thereafter  hid

       her body in the court-yard by digging some earth there".

                                                                          (Emphasis added)


22.     Both,   Nurul   Islam   (PW.11)   and   Ali   Hossain   (PW.13)     are


chance witnesses as they alleged to be in Shyamsundar Bazar on that


date   for   marketing   and   none   of   them   had   regular   business   in   that


bazar.   The Court while dealing with a circumstance of extra-judicial


confession must keep in mind that it is a very weak type of evidence


and require appreciation with great caution.


              Extra-judicial confession must be established to be true and


made voluntarily and in a fit state of mind.  The words of the witness


must   be   clear,   unambiguous   and   clearly   convey   that   accused   is   the


perpetrator   of   the   crime.     The   "extra-judicial   confession   can   be


accepted and can be the basis of a conviction if it passes the test of


credibility".  (See:  State   of  Rajasthan   v.  Raja  Ram,  (2003)  8  SCC


180;   and  Kulvinder   Singh   &   Anr.   v.   State   of   Haryana,   (2011)   5


SCC 258).




23.     Nurul Islam (PW.11) who is maternal uncle of the deceased had


deposed   about   extra-judicial   confession   made   by   the   accused   in


presence of  others,  though he was not able to explain who were the





                                                                                               15


other  persons as  no  other  person  has  been  examined   in this  respect.


Digambar   Mondal   (PW.19)   had   deposed   that   Nurul   Islam   (PW.11)


had told him about the confession by the accused in presence of other


persons and police personnel. The accused had told him also that dead


body was buried in the courtyard.  Thus, the theory of extra-judicial


confession   revealed   by   Nurul   Islam   (PW.11)   does   not   get


corroboration from the statement of Ali Hossain (PW.13) or any other


independent witness or police personnel. Nor the body of the deceased


was   recovered   from   the  courtyard.   While   considering   the   material


contradictions   in   the   statement   of   Nurul   Islam   (PW.11)   and   Ali


Hossain (PW.13), we do not consider that it would be safe to accept


his version in this respect.




24.      Dr. Samudra Chakraborty (PW.18), who conducted the autopsy


on the body of Sahanara Khatun found the following injuries:


       i)      One incised wound 4" x 0.2" x scalp deep over middle


               3rd  of   left   parietal   region   (vault   of   the   scalp)   cutting


               through   the   skin,   pussa,   muscle,   vessel   and   nerve   and


               being placed 1.2" left on mid-line of the body;


       ii)     Bruises over 1" x 0.6" x over left side of forehead and


               being placed 0.5" left of mid-line of the body;





                                                                                    16


                 iii)      One lacerated wound 0.6" x 0.4" muscle and bone deep


                           over left molar region with extra-vesation of blood and


                           blood-clot in around the wound;


                 iv)       Haema toma (red) 3.2" x 1.5" in area over left temporal


                           parietal region;


                 v)        Subdural haemorrhage of both sides of tempero parietal


                           region of the brain.


         

                         In   the   opinion   of   the   doctor,   death   was   due   to   combine


      effect of injuries and suffocation. The incised wound could be caused


      by   a   hit   of   sharp   edge   of   the   spade.   The   haema   toma   on   the   victim


      could be caused by a hit of  heavy blunt weapon.  This witness did not


      speak of any sign of sexual assault on the deceased  before or after her


      death.




      ABSCONDANCE:


      25.     Both   the   courts   below   have   considered   the   circumstance   of


      abscondance of the appellant as a circumstance on the basis of which


      an adverse inference could be drawn against him. It is a settled legal


      proposition   that   in   case   a   person   is   absconding   after   commission   of


      offence of which he may not even be the author, such a circumstance


      alone may not be enough to draw an adverse inference against him as it


      would go against the doctrine of innocence.  It is quite possible that he


      may   be   running   away   merely   being   suspected,   out   of   fear   of   police




                                                                                               17


arrest   and   harassment.     (Vide:  Matru   @   Girish   Chandra   v.     The


State   of   U.P.,   AIR   1971   SC   1050;  Paramjeet   Singh  @   Pamma  v.


State of Uttarakhand  AIR 2011 SC 200; and  Rabindra Kumar Pal


@ Dara Singh v. Republic of India, (2011) 2 SCC 490)




               Thus,   in   view   of   the   law   referred   to   hereinabove,   mere


abscondance of the appellant cannot be taken as a circumstance which


give rise to draw an adverse inference against him.





26.    CIRCUMSTANTIAL EVIDENCE:


               Undoubtedly,   conviction   can   be   based   solely   on


circumstantial  evidence. However, the court must bear in mind while


deciding  the  case  involving   the  commission   of serious   offence   based


on circumstantial evidence that the prosecution case must stand or fall


on its own legs and cannot derive any strength from the weakness of


the   defence   case.     The   circumstances   from   which   the   conclusion   of


guilt is to be drawn should be fully established. The facts so established


should   be   consistent   only   with   the   hypothesis   of   the   guilt   of   the


accused   and   they   should   not   be   explainable   on   any   other   hypothesis


except   that   the   accused   is   guilty.   The   circumstances   should   be   of   a




                                                                                     18


conclusive nature and tendency. 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. (Vide:


Sharad Birdhichand Sarda  v.  State of Maharashtra, AIR 1984 SC


1622,  Krishnan  v.  State represented by Inspector of Police, (2008)


15 SCC 430; and  Wakkar & Anr. v. State of Uttar Pradesh, (2011)


3 SCC 306).




27.         No   presumption   could   be   drawn   on   the   issue   of   last   seen


together     merely   on   the   fact   that   Abdul   Rajak   (PW.2),   father   of   the


deceased had stated that Sahanara Khatun had gone to pluck the jhinga


and her dead body was recovered from there. The witnesses     merely


stated that the accused was present in the close proximity of that area.


That does not itself establish the last seen theory because none of the


witnesses said that the accused and deceased were seen together.  Most


of the witnesses had deposed that   the accused was having spade.   It


may connect the appellant to the factum of digging the earth. A person


going for catching fish normally does not take a spade with him.


        The nature of the admissibility of the facts discovered pursuant


to  the   statement   of  the   accused   under   Section   27   of  Indian   Evidence





                                                                                      19


Act, 1872 is very limited. If an accused deposes to the police officer


the   fact   as   a   result   of   which   the   weapon   with   which   the   crime   is


committed is discovered, and as a result of such disclosure, recovery of


the weapon is made, no inference can be drawn against the accused, if


there is no evidence connecting the weapon with the crime alleged to


have been committed by the accused.


        Be   that   as   it   may,   the   spade   had   not   been   sent   for   chemical


analysis as  admitted by Digambar Mondal (PW.19), I.O. himself and


there was no explanation furnished as for what reason it was not sent.


In   case   of   circumstantial   evidence,   not   sending   the   weapon   used   in


crime   for   chemical   analysis   is   fatal   for   the   reason   that   the


circumstantial evidence may not lead to the only irresistible conclusion


that the appellant was the perpetrator  of the crime and none else and


that   in   the   absence   of   any   report   of   Serologist   as   to   the   presence   of


human blood on the weapon may make the conviction of the accused


unsustainable. (Vide:  Akhilesh Hajam v. State of Bihar  (1995) Supp


3 SCC 357).


        There is no medical evidence or suggestion by any person as to


the sexual assault on the deceased. Therefore, it merely remained the


guesswork   of   the   people   at   large.   Mere   imagination   that   such   thing


might have happened is not enough to record conviction.




                                                                                           20


28.     This incident had occurred in a broad day light at 9.30 a.m. in


the month of August in the agricultural field surrounded by agricultural


field of others. Therefore,  the presence of a large number of persons in


the close vicinity of the place of occurrence can be presumed and it is


apparent also from the statement of Aliful Rahmal (PW.6). Thus,  had


the deceased been with the appellant, somebody could have seen her at


the place of occurrence. It cannot be a positive evidence as concluded


by  the  courts  below that  none other   than  the  appellant  could  commit


her   murder   because   no   one   else   had   been   there   at   the   place   of


occurrence. In fact, nobody had ever seen the deceased at the place of


occurrence.   Digging   the  earth   by   a   single   person   to   the   extent  that   a


dead body be covered by earth requires a considerable time and there


was a possibility that during such period somebody could have seen the


person indulged in any of these activities, though no evidence is there


to that extent.  The circumstances from which the conclusion of guilt is


to   be   drawn   in   such   a   case   should   be   fully   established.   The


circumstances   concerned   "must   or   should"   and   "not   and   may   be"


established.   In   the   instant   case,   the   circumstances   have   not   been


established.





                                                                                       21


29.      In view of the above, we are of the considered opinion that the


courts below convicted the appellant on a mere superfluous approach


without in depth analysis of the relevant facts.




30.      In the facts and circumstances of the case, the appeal succeeds


and is allowed. The appellant is given benefit of doubt and acquitted of


the   charges   of   offences   punishable   under   Sections   302   and   201   IPC.


Appellant   is  in  jail.    He  be   released  forthwith  unless  his   detention   is


required in any other case.


                                                                ....................................J.

                                                      (Dr. B.S. CHAUHAN)




                                                              .....................................

 J.

                                                      (SWATANTER KUMAR)

 New Delhi,            

 June 14, 2011              





                                                                                                22

After appreciating the aforesaid evidence including the deposition of Bhugan (DW.1), the trial court came to the conclusion that Suresh Kumar, accused, had no motive and his identification was also not reliable and acquitted him by giving the benefit of doubt. 9. The respondents were convicted by giving cogent reasons on the basis of the following grounds: 7 None of the accused persons belonged to the locality or even to the city. 7 No suggestion came to be made from their side as to what could have brought them to the spot at the moment. 7 They were utter strangers to the area operating under cover of darkness and seen scaling down the wall in a bid to run away. 7 Upon being taken into custody they took the police party inside the western Sahan and then to the apartment occupied by the deceased. 7 The medical evidence did not suggest that there was rape or anything of the kind attempted on Smt. Rashmi. Nor did the investigation reveal any case of theft. 7 The purse of the deceased was found intact in the room besides the sum of Rs.107/- and odd. None of the articles was shown to have been taken away. The object behind those who operated inside the room, therefore, could not have other than to kill Smt. Rashmi. a best example in appreciating the evidence.

                                                                      REPORTABLE




                      IN THE SUPREME COURT OF INDIA

                CRIMINAL APPELLATE JURISDICTION


               CRIMINAL APPEAL NOs. 1693-1694 OF 2005




     State of U.P.                                                      ...Appellant


                                        Versus


     Mohd Iqram & Anr.                                                     ...Respondents




                                J U D G M E N T




     Dr. B.S. CHAUHAN, J.




1.        These appeals have been preferred by the State of U.P. against


the judgment and order dated 25.04.2003 passed by the High Court of


Judicature at Allahabad in Criminal Appeal Nos. 14   and 60 of 1981,


reversing   the   judgment   and   order   of   the   Sessions   Court   dated


20.12.1980   in   Session   Trial   No.   382   of   1980   passed   by   the   learned


District   Judge,   Saharanpur,   by   which   both   the   respondents   stood


convicted under Section 302 read with Section 34 of the Indian Penal


Code,   1860   (hereinafter   called   as   `IPC')   and   had   been   awarded   life


imprisonment.


2.      The brief resume of the facts as emerging from the FIR and the


evidence adduced by the parties is set forth:


(A)     One Rashmi, deceased, aged about 30 years had been married to


Suresh   Kumar   (accused,   acquitted   by   the   Sessions   Court),   but   her


relations   with   him   and   her   mother   in   law   always   remained   strained.


They   had   no   child.     Suresh   Kumar   obtained   a   decree   of   divorce   on


30.01.1980 under Section 13 of the Hindu Marriage Act, 1955 and as


per  the   decree,  Rashmi,   deceased,   was  permitted   to  reside   in   a  room


with an enclosed open area towards its West, apart from the rest of the


house, and she was granted maintenance @  Rs.150/- per month till her


life   time   or   remarriage,   whichever   was   earlier.     Being   aggrieved,


Rashmi,  deceased, had preferred  an appeal  against the said  decree of


divorce dated 30.01.1980 and the same was pending before the District


Judge, Saharanpur.




(B)     On 15.0.5.1980 at about 9.00 P.M., S.I. Brahm Pal Singh (PW.6)


of Police Station Sadar Bazar accompanied by Head Constable Balvir


Singh (PW.7) and other two constables was on a routine check-up and


general patrolling. On reaching the West of Adarsh School in the close


vicinity   of   the   house   of   Rashmi,   deceased,   he   and   his   companions


heard   shrieks   emanating   from   the   house   of   Suresh   Kumar   accused





                                                                                    2


known   as   "Jagadhari   Walon   Ki   Kothi".   The   police   party   saw   three


persons scaling down the wall of the Sahan towards West of the room


under the occupation of Rashmi, deceased.




(C)      On being challenged and flashing of torch light, two of them ran


towards   North   West   and   the   third   towards   South.     On   a   chase,   the


present two respondents who were running towards North West, were


caught hold by Samay Singh (PW.8) and one Sharif who was present


there.   The other accused who ran towards South, managed to escape.


He was named as Suresh Kumar by the present two respondents after


they   had   been   apprehended.     The   respondents   led   the   police   party


inside the Sahan of the said house.  The lock inside the door opening in


the Sahan was broken by S.I. Brahm Pal Singh (PW.6) and a woman


was seen lying unconscious on the floor in the room on a cot.   In the


meanwhile,   Mahesh   Kumar   (PW.3),   (brother   of   Suresh   Kumar),   also


came   down   from   the   upper   storey   besides   other   persons.   Mahesh


Kumar   (PW.3)   took   Rashmi,   deceased,   by   car   to   S.B.D.   Hospital,


Saharanpur. The respondents had been taken to the police station Sadar


Bazar   where   FIR   was   lodged   by   S.I.   Brahm   Pal   Singh   (PW.6).


However, on receiving the information of death of Rashmi, deceased,





                                                                                    3


at   about   11.00   P.M.   from   Mahesh   Kumar   (PW.3),   the   case   was


converted under Section 302 IPC and investigation ensued.


(D)      The post-mortem of the dead body was conducted by Dr. G.R.


Sharma  (PW.1)   on 16.05.1980,  according  to  which the  deceased  was


about 30 years of age and had  died  about 18 hours  from the time  of


conducting post-mortem.  The doctor found the following ante-mortem


injuries on her person:



        (1) Lacerated  wound 1 = cm x 1 =   cm x <   cm on left eyelid


            with contusion 7.5 x 2 cm extending from left eyelid to left


            temple region.


        (2) Abrasion 4 x = cm on left cheek.


        (3) Abrasion 1 =  cm x > cm on left side neck, 2 cm below angle


            of mandible.


        (4) Abrasion = cm x = cm with contusion 1 = cm x 1 cm on the


            right side of neck, 4 cm below angle of mandible.


        (5) Abrasion 1 = cm x 1 cm on back of left shoulder joint top.


        (6) Abrasion 1 cm x 1 cm on back of left elbow joint.


        (7) Contusion   5   cm   x   3   cm   on   right   forearm   upper   1/3rd  medial


            side.


        (8) Contusion 4 cm x 2 cm on back of inner angle of scapula.



 (E)      Suresh Kumar was also arrested on 23.05.1980 and he was kept


 bapurdah.  He was subjected to test identification  parade on 6.6.1980


 and was identified by S.I. Brahm Pal Singh (PW.6), Head Constable


 Balvir Singh (PW.7) and Samay Singh (PW.8) besides Babu Ram and




                                                                                       4


Surendra Pal. As all the three accused pleaded not guilty, they were


put   to   trial.     The   prosecution,   in   all,   examined   13   witnesses.     The


respondent   Mohd.   Iqram   also   examined   one   Bhugan   (DW.1),   the


Pradhan of village Taharpur in his defence.




(F)     On   consideration   of   the   evidence   on   record,   the   learned   trial


court   convicted   and   sentenced   the   two   respondents   as   mentioned


hereinabove,   but   acquitted   Suresh   Kumar   (husband   of   deceased


Rashmi)  giving him benefit of doubt entirely on the premise that he


might have been known to the identifying witnesses from before, and


he was shown to the witnesses before being put to test identification.




(G)     Being   aggrieved,   the   two   respondents   filed   Criminal   Appeal


Nos. 14  and 60 of 1981 before the Allahabad High court which have


been   allowed   by   the   judgment   and   order   dated   25.04.2003.   Hence,


these appeals.




3.      Shri   R.K.   Gupta,   learned   counsel   appearing   on   behalf   of   the


State of U.P., has submitted that the High Court committed an error in


acquitting   the   respondents   without   appreciating   the   facts   on   record.


The   trial   court   had   convicted   the   respondents   on   circumstantial


evidence   making   clear   cut   observations   that   the   chain   of





                                                                                      5


circumstances  was complete; the said respondents had been arrested


from the place of occurrence; their presence was not likely to be there


as they were not the residents of the area; there had been no theft or


dacoity in the area.     Rashmi, deceased, was strangulated with hands


without the aid of any weapon.  The High Court ordered acquittal on


the   basis   that   no   weapon   had   been   recovered   and   probably   Suresh


Kumar, who had been acquitted by the trial court had committed the


murder after committing rape on the deceased, though the trial court


had recorded a finding that there had been no violence with  the body


of the deceased even prior to her strangulation. The High Court has


placed reliance on inadmissible evidence which is not permissible in


law.     The   judgment   and   order   of   the   High   Court   is   liable   to   be   set


aside and the appeals deserve to be allowed.  




4.      On   the   contrary,   Smt.   K.   Sarada,   learned   amicus   curiae,   has


vehemently opposed the appeals contending that the High Court had


given   cogent   reasons   while   acquitting   the   respondents.     This   Court


should   not   interfere   with   the   said   order   as   it   is   based   on   proper


appreciation of evidence.  No motive could be established against the


respondents, thus, appeals are liable to be dismissed.      





                                                                                          6


5.      We   have   considered   the   rival   submissions   made   by   both   the


learned counsel for the parties and perused the record.




6.      As   it   is   a   case   of   acquittal,   this   Court   has   to   be   slow   in


interfering   with   the   impugned   judgment   and   order   and   it   is


permissible   to   reverse   the   judgment   of   acquittal   only   on   settled


principles of law.  This Court will have to record conclusions that the


findings of fact recorded by the High Court are perverse and, for that


purpose,  it is necessary for us to make  reference to the evidence on


record very briefly.




7.      Mahesh Kumar (PW.3) is the brother of accused Suresh Kumar,


husband  of Rashmi, deceased.  He  had  deposed  that  on 15.5.1980  at


about   9.00   P.M.,   he   was   on   the   roof   of   his   house   alongwith   his


another brother. He heard shrieks from the room of Rashmi, deceased.


He   flashed   the   light   of   torch   towards   the   same   and   found   that   2-3


persons were running away from there.   He immediately came down


stairs   and   found   that   some   persons   had   already   gathered   there.     He


found that these two respondents had been apprehended by the police


and   local   persons   present   there.       He   had   gone   alongwith   these


respondents   and   police   to   the   room   of   the   deceased   and   found   her


lying   on   the   cot.   Mukesh   Kumar   (PW.3)   took   her   to   the   hospital




                                                                                         7


where   she   was   declared   dead.     S.I.   Brahm   Pal   Singh   (PW.6)   has


supported the prosecution case by stating that when he was on patrol


duty on 15.5.1980 and reached near the place of occurrence, he heard


some noise from the residence of Rashmi, deceased.  He immediately


went towards the said house and found that three persons were scaling


down the Western wall of the building. The police party chased them


alongwith other persons and apprehended them.  Samay Singh (PW.8)


and   Sharif   had   also   reached   there.   One   person   escaped.   Constable


Balvir   Singh   (PW.7)   who   had   accompanied   S.I.   Brahm   Pal   Singh


(PW.6)   deposed   that   they   found   three   persons   scaling   down   the


Western wall of the house and police alongwith other persons chased


them and apprehended two persons while one   escaped.  Samay Singh


(PW.8) has also made a similar statement supporting the case of the


prosecution.     Om   Prakash   Chaudhry,   a   practicing   advocate,   had


deposed   about   the   strained   relationship   between   accused   Suresh


Kumar   and   deceased   Rashmi   and   further   deposed   that   Rashmi,


deceased,   had   told   him   2-3   times   that   she   had   an   apprehension   of


being killed by Suresh Kumar, accused and his mother  in law.   The


prosecution case stands further supported by Dr. G.R. Sharma (PW.1),


who  had     conducted  the   post-mortem   examination   and  in   the  report


opined   that   injuries   on   the   person   of   Rashmi,   deceased,   could   be




                                                                                   8


caused by strangulation and use of force.




8.      After   appreciating   the   aforesaid   evidence   including   the


deposition of Bhugan (DW.1), the trial court came to the conclusion


that Suresh Kumar, accused, had no motive and his identification was


also not reliable and acquitted him by giving the benefit of doubt.




9.      The   respondents   were   convicted   by   giving   cogent   reasons   on


the basis of the following grounds:


 7 None of the accused persons belonged to the locality or even to

      the city.

 7 No suggestion came to be made from their side as to what could
      have brought them to the spot at the moment.


 7 They were utter strangers to the area operating under cover of

      darkness and seen scaling down the wall in a bid to run away.


 7 Upon being taken into custody they took the police party inside

      the   western   Sahan   and   then   to   the   apartment   occupied   by   the


      deceased.


 7 The   medical   evidence   did   not   suggest   that   there   was   rape   or

      anything   of   the   kind   attempted   on   Smt.   Rashmi.     Nor   did   the


      investigation reveal any case of theft.


 7 The purse of the deceased was found intact in the room besides

      the sum of Rs.107/- and odd.   None of the articles was shown to


      have   been   taken   away.     The   object   behind   those   who   operated


      inside the room, therefore, could not have other than to kill Smt.


      Rashmi.




                                                                                   9


 7 Death was possible in the medical opinion also, to be caused by

       strangulation with the hands without the application of any other


       instrument or weapon.



10.      The   High   Court   after   appreciating   the   evidence   acquitted   the


respondents on the basis of the following findings:


          (I)        The   simple   fact   of   their   running   in   the   lane   at

          that moment could not be sufficient to fasten the guilt

          on   their   heads.     There   is   no   corroboration   of   any

          independent witness that the accused had scaled down

          the Western wall of the house.


          (II)       The deceased was a continuous source of trouble

          to her husband Suresh Kumar.  She was not reconciled

          to the divorce granted in favour of her husband and she

          had challenged the same before the appellate court and

          her husband had also been burdened with the liability

          to   pay   maintenance   to   her   till   her   life   time.   Further

          observations made by the Court read as under:


                 "The   post-mortem   report   shows   that   seminal

                 fluid was found in her vaginal part and several

                 ante-mortem injuries had also been inflicted on

                 her. The autopsy indicated as if she was subject

                 to   forcible   intercourse   also   before   her   death.

                 The   greater   possibility   is   that   it   was   her

                 husband   who   cut   short   her   life   after   inflicting

                 several   injuries   on   her   and   strangulating   her,

                 but   before   doing   that   he   even   had   forcible

                 sexual   intercourse   with   her   exhibiting   sadistic

                 tendency.     He   did   her   to   death   this   way,

                 removing the thorn from his way  for all times

                 to   come.   After   committing   the   crime,   he

                 managed   the   vanishing   trick   from   the   scene.

                 The   said   feature   is   that   the   case   was   given   a

                 different profile relating to him, not coming up

                 to the standard required to find him guilty."





                                                                                           10


       (III)    There was no electric supply at the relevant time.

       Thus,   identification   of   the   accused   while   scaling   down

       the wall becomes doubtful.


       (IV)     The   weapon   used   in   the   offence   had   not   been

       recovered.




11.     In   the   aforesaid   fact-situation,   the   case   requires   very   close


scrutiny.


        Dr. G.R. Sharma (PW.1) had deposed that the injuries could be


caused  by  strangulation  by  hands.    Thus,  the  question of recovering


any weapon as mentioned by the High Court, is totally unwarranted


and uncalled for.  More so, nature of the injuries itself reveal that for


causing such injuries, no weapon was required.    Non-use of weapon


cannot be illogical, keeping in view the findings recorded in the post


mortem report.




12.     So far as the issue of rape of the deceased prior to her murder


by   Suresh   Kumar,   accused,   her   ex-husband,   is   concerned,   the   trial


court   has   recorded   findings   of   fact   on   this   aspect   in   the   negative.


Undoubtedly, post-mortem report contains such observations, but Dr.


G.R.   Sharma   (PW.1)   has   not   made   any   such   reference   either   in   his


examination-in-chief or cross-examination.   Nor this aspect had ever


been   put   to   either   of   the   three   accused   in   their   statements   recorded





                                                                                      11


under Section 313 of Code of Criminal Procedure, 1973 (hereinafter


called `Cr.P.C.').  We fail to understand as under what circumstances


it was permissible for the High Court to make such observations about


the  post-mortem  report.     Accused  Suresh   Kumar   has  been   acquitted


by   the   trial   court.     The   State,   for   reasons   best   known   to   it,   did   not


prefer any appeal against the said order  of acquittal.   We are of the


considered opinion that it was not permissible for the High Court to


castigate   the   accused   Suresh   Kumar   with   such   observations   holding


him guilty of committing rape and subsequently murder of his ex-wife


Rashmi.   Undoubtedly,   the   post-mortem   report   had   been   proved   but


that does not mean that each and every content thereof is stood proved


or can be held to be admissible.  Such observations cannot be termed


to be a substantive piece of evidence. Dr. G.R. Sharma (PW.1) did not


even whisper about the same in his statement made in the court which


is   the   only   substantive   piece   of   evidence   in   law.     The   court   cannot


place reliance on incriminating material against the accused, unless it


is put to him during his examination under Section 313 Cr.P.C. Thus,


the   High   Court   committed   an   error   by   taking   into   consideration   the


inadmissible evidence for the purpose of deciding the criminal appeals


and holding the person guilty who had already been acquitted by the


trial court. The post-mortem report had been examined at the time of




                                                                                            12


framing of the charges.  The trial court did not frame any charge under


Section 376 IPC or Section 376 read with Section 511 IPC.  More so,


no   witness   had   ever   mentioned   anything   in   this   respect.   Thus,   it   is


beyond   any   stretch   of   imagination   of   any   person,   how   such


observations could be made by the High Court.




13.     No matter   how weak  or scanty  the  prosecution  evidence  is  in


regard to certain incriminating material, it is the duty of the Court to


examine   the   accused   and   seek   his   explanation   on   incriminating


material that has surfaced against  him. Section 313 Cr.P.C. is based


on the fundamental principle of fairness.  The attention of the accused


must specifically be brought to inculpatory pieces of evidence to give


him   an   opportunity   to   offer   an   explanation   if   he   chooses   to   do   so.


Therefore, the court is under a legal obligation to put the incriminating


circumstances   before   the   accused   and   solicit   his   response.     This


provision is mandatory in nature and casts an imperative duty on the


court   and   confers   a   corresponding   right   on   the   accused   to   have   an


opportunity   to   offer   an   explanation   for   such   incriminatory   material


appearing   against   him.   Circumstances   which   were   not   put   to   the


accused in his examination under Section 313 Cr.P.C. cannot be used


against   him   and   have   to   be   excluded   from   consideration.   (Vide:





                                                                                      13


Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984  SC


1622;  State of Maharashtra  v.  Sukhdeo Singh & Anr.,  AIR 1992


SC 2100; and Paramjeet Singh @ Pamma v. State of Uttarakhand,


AIR 2011 SC 200)


         

14.     In State of Bihar and Ors. v. Radha Krishna Singh & Ors.,


AIR 1983 SC 684, this Court dealt with the issue of prohibitive value


of the contents of an admitted document and held as under :-


               "Admissibility   of   a   document   is   one   thing   and   its

               probative   value   quite   another-these   two   aspects

               cannot be combined. A document may be admissible

               and yet may not carry any conviction and weight of

               its probative value may be nil......"


(See also: Madan Mohan Singh v. Rajni Kant, AIR 2010 SC 2933)


                     Thus, even if the post mortem report revealed any sexual


assault   on   the   deceased   victim,  such   contents   are   not   admissible,   in


spite of the fact that the post mortem  report  had been exhibited and


proved  by  Dr.  G.R.  Sharma  (PW.1),   in  view  of  the facts  mentioned


hereinabove.




15.       So far as the question of the source of light and identification of


the accused are concerned, the depositions of  Mahesh Kumar (PW.3),


brother   of   Suresh   Kumar-accused,   Brahm   Pal   Singh,   S.I.   (PW.6),


Balvir Singh (PW.7) and Samay Singh (PW.8) reveal that there were





                                                                                     14


minimum three torches which had been flashed simultaneously on the


persons who were scaling down the wall and were being chased by the


police as well as by the local residents including Samay Singh (PW.8).


In   such   a   fact-situation,   failure   of   electric   supply   does   not   become


fatal.




                 Brahm Pal Singh (PW.6) and Balvir Singh (PW.7) have


identified the respondents  being the persons who were scaling down


the   wall   and   had   been   apprehended   upon   an   immediate   chase.


Therefore,   the   High   Court   erred   in   recording   the   finding   that


identification was doubtful.




                 Once the prosecution had brought home the evidence of


the presence  of the accused  at  the  scene  of the crime,  then the onus


stood  shifted on  the defence  to  have brought  forth  suggestions  as  to


what could have brought them to the spot at that dead of night.   The


accused   were   apprehended   and   therefore,   they   were   under   an


obligation   to   rebut   this   burden   discharged   by   the   prosecution,   and


having   failed   to   do   so,   the   trial   court   was   justified   in   recording   its


findings   on   this   issue.       The   High   Court   committed   an   error   by


concluding   that   the   prosecution   had   failed   to   discharge   its   burden.





                                                                                         15


Thus,   the   judgment   proceeds   on   a   surmise   that   renders   it


unsustainable.  




       The   trial   court   did   not   find   evidence   of   Bhugan   (DW.1),


examined by Mohd. Iqram, one of the respondents , worth acceptance.




16.    The High Court did not even make any reference to him.  It is a


settled   legal   proposition   that   in   exceptional   cases   where   there   are


compelling circumstances, and the judgment under appeal is found to


be perverse i.e. the conclusions of the courts below are contrary to the


evidence on record or its entire approach in dealing with the evidence


is patently illegal, leading to miscarriage of justice or its judgment is


unreasonable   based   on   erroneous   law   and   facts   on   the   record   of  the


case, the appellate court should   interfere with the order of acquittal.


While   doing   so,   the   appellate   court   should   bear   in   mind   the


presumption of  innocence of the accused and further that the acquittal


by   the   courts   below   bolsters   the   presumption   of   his   innocence.


Interference   in   a   routine   manner   where   the   other   view   is   possible


should be avoided, unless there are good reasons for interference.



(See   :  Babu   v.   State   of   Kerala,   (2010   (9)   SCC   189;    Dr.   Sunil

Kumar   Sambhudayal   Gupta   &   Ors.   v.   State   of   Maharashtra,

(2010) 13  SCC 657;  Brahm Swaroop & Anr. v. State of  U.P., AIR

2011 SC 280;  S. Ganesan v. Rama Raghuraman & Ors.,  (2011) 2

SCC   83;  V.S.   Achuthanandan   v.   R.   Balakrishna   Pillai   &   Ors.,




                                                                                   16


(2011) 3 SCC 317;  State of M.P. v. Ramesh & Anr., (2011) 4 SCC

786; Abrar v. State of U.P., (2011) 2 SCC 750; and Rukia Begum &

Ors. v. State of Karnataka, (2011) 4 SCC 779).




17.       In the instant case, the circumstantial evidence is so strong that


it points unmistakably to the guilt of the respondents and is incapable


of explanation  of any other  hypothesis  that of their guilt. Therefore,


findings of fact recorded by the High Court are perverse, being based


on irrelevant considerations and inadmissible material.




18.       In view of the above, the appeals succeed and are allowed.  The


judgment and order of the High Court dated 25.04.2003 is hereby set


aside.   The judgment and order of the trial court dated 20.12.1980 in


Sessions Trial No.382 of 1980 is restored.  A copy of the order be sent


to   the   Chief   Judicial   Magistrate,   Saharanpur   to   ensure   that   the


respondents   be   apprehended   and   sent   to   jail   for   serving   out   the


unserved part of the sentence awarded by the trial court.





                                                               ....................................J.

                                                     (Dr. B.S. CHAUHAN)




                                                             .....................................

J.

                                                     (SWATANTER KUMAR)

                                                                             

New Delhi,

June 13, 2011



                                                                                               17


18

In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, 12 . namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the 13 . prosecution's case, render the testimony of the witness liable to be discredited.

                                                                   REPORTABLE




                 IN THE SUPREME COURT OF INDIA

                CRIMINAL APPELLATE JURISDICTION


                 CRIMINAL APPEAL NO. 1006 of 2007




 A. Shankar                                                          ...Appellant


                                     Versus


 State of Karnataka                                                     ...Respondent




                               J U D G M E N T


 Dr. B.S. CHAUHAN, J.


  1.               This criminal appeal has been filed under Section 2(a) of the


Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,


1970 against the judgment and order dated 28.2.2007 of the High Court


of   Karnataka,   Bangalore,   in   Criminal   Appeal   No.1069   of   2000   by


which   the   High   Court   has   reversed   the   judgment   and   order   dated


31.10.1998   passed   by   the   XVth  Additional   City   Sessions   Judge,


Bangalore, in Sessions Case No.366 of 1996, acquitting the appellant


of the charges under Sections 302 and 307 of the Indian Penal Code,


1860 (hereinafter called `IPC').


           


2.             Facts   and   circumstances,   as   per   the   prosecution   case


giving rise to this appeal had been that the law was put into motion by


younger   brother   of   the   deceased,   Shankara   (PW.8),   who   lodged   a


complaint   orally   on   26.3.1996   that   the   appellant   came   to   the   Barber


Saloon of Murthy Prasad, deceased, on 25.3.1996 at about 8 p.m. and


demanded   Rs.150/-     from   the   deceased.     Since   the   deceased   did   not


give the money demanded, the accused got angry and threatened  that


he would take care of him later.  Appellant accused again came back at


9.30  p.m.  to  the  shop  of  the  complainant,  sought  shelter   therein,  had


food, and slept there with the deceased and the complainant.  At about


2 a.m. the complainant heard sounds and after being awaken   he saw


that the appellant was hitting his elder brother with a knife on the chest


and on shouting of the complainant the appellant hit him also with the


same   on   the   left   abdomen   and   hands   and   ran   away.     Murthy   Prasad


died of assault and the complainant got  injured,  and was taken to the


hospital for treatment.




3.             On the basis of the said oral complaint, an FIR No.82/96


dated 26.3.1996 (Ext.P4) was recorded.   The investigation ensued and


the   appellant   was   arrested   on   31.3.1996.   After   conclusion   of   the


investigation, charge sheet was filed against the appellant and he was





                                                                                     2


put to trial under Sections 302 and 307 IPC.  In order to prove the guilt


of   the   appellant,   prosecution   examined   17   witnesses.     The   appellant


was examined under Section 313 of Code of Criminal Procedure, 1973


(hereinafter   referred  to  as  "Cr.P.C.")  wherein  apart   from  denying  the


evidence against him given by the witnesses directly, he also denied to


have   gone   to   the   Saloon   of   the   deceased   at   all   as   alleged   by   the


prosecution.




4.              After considering the entire evidence on record, the Trial


Court came to the conclusion that prosecution failed to prove beyond


reasonable doubt that the appellant  had committed  murder  of Murthy


Prasad   or   made   an   attempt  to   kill   the   complainant   Shankara   (PW.8).


Thus,   vide   judgment   and   order   dated   31.10.1998,   the   appellant   was


acquitted of the charges under Sections 302 and 307 IPC.




5.              Being   aggrieved,   the   State   of   Karnataka   preferred


Criminal Appeal No.1069 of 2000 which has been allowed by the High


Court convicting the appellant under Section 302 IPC for committing


the   murder   of   Murthy   Prasad,   deceased   and   awarding   him   life


imprisonment.   The   appellant   also   stood   convicted   under   Section   324


IPC for causing injuries to the complainant Shankara (PW.8) and has


been  awarded  six   months  imprisonment   and  a  fine   of Rs.5,000/-.    In




                                                                                        3


default   of   depositing   the   fine   to   undergo   simple   imprisonment   for   a


period   of   one   month.     Both   the   sentences   have   been   directed   to   run


concurrently. Hence, this appeal.


             

6.                Shri   Sanjay   Mishra,   learned   counsel   appearing   for   the


appellant has submitted that the High Court has committed an error in


interfering   with   the   well   reasoned   judgment   of   acquittal   by   the   Trial


Court   and   relying   upon   the   evidence   on   record   while   ignoring   the


material   inconsistencies   between   the   evidence   of   the   witnesses;   and


medical   and   ocular   evidence.     No   motive   was   proved   by   the


prosecution to commit the offence.  There had been an inordinate delay


of 4 hours in lodging the F.I.R. as the murder was alleged to have been


committed at 2 a.m. while the complaint was lodged at 6 a.m. on the


same   day,   though   the   Police   Station   was   at   a   distance   of   only   one


kilometre.  There had been discrepancy relating to the seizure and kind


of weapon used in the offence.   Therefore, the appeal deserves to be


allowed.


           

7.                Per   contra,   Ms.   Rashmi   Nandakumar,   learned   counsel


appearing   for   the   State   of   Karnataka   vehemently   opposed   the   appeal


contending   that   the   High   Court   has   rightly   reversed   the   findings


recorded   by   the   Trial   Court   being   the   First   Court   of   Appeal   after





                                                                                       4


appreciating   the   evidence   properly.     The   Court   below   had   mis-


appreciated the material evidence of the witnesses.   More so, the trial


Court   had   failed   to   give   due   weightage   to   the   evidence   of   injured


witness, namely Shankara (PW.8).   Hence, the appeal lacks merit and


no interference is required.




8.             We   have   considered   the   rival   submissions   made   by


learned counsel for the parties and perused the record.




9.          The  post mortem examination report dated  26.3.1996 revealed


that following injuries were there on the person of Murthy Prasad:


  (1)     Vertically placed incised wound over the front of tip of right

          thumb measuring 3 cm x 0-5 cms x 0-5 cms deep;


 (2)   Incised  wound  over  top of left   shoulder measuring   2 cms  x 0-5

      cms x skin deep;


 (3) Incised   wound   over   left   side   of   chest   situated   8   cms   vertically

      below left arm fit, measuring 2 cms x 0-5 cms;


 (4) Incised   wound over left   side  lower  part  of chest  situated  23  cms

      below later 1/3rd of left collar bone, vertical measuring 2 cms x 0-5

      cms x 5 cms, deep;


 (5) Incised   wound over left   side  lower  part  of chest  situated  20  cms

      below left arm fit, oblique measuring 2.5 cms x 0-5 cms x 0-5 cms,

      deep;


 (6) Incised   wound   over   left   side   lower   part   of   front   of   abdomen

      measuring 2.5 cms x 0-5 cms x 1 cms, deep;


 (7) Horizontally   placed   stab   wound   present   over   the   left   side   of   hip

      situated  3 cms behind  and  2 cms below  the  level of left  anterior




                                                                                       5


       iliac spine measuring 2.5 cms. x 2 cms x 9 cms deep, the front end

       is pointed and back end blunt, margins are clean cut, the wound is

       directed   backwards,   downwards,   and   to   right   by   cutting   sciatic

       nerve and underlying vessels edged clean cut;


 (8) Incised   wound   over   left   side   upper   part   of   neck   situated   2   cms

       below middle of ramus of mandible, measuring 1 cms x 0-5 cms x

       0-5 cms, deep;


 (9) Stab incised wound present over left side back of chest situated 12

       cms below the level of 7th  cervicle spine 5 cms to left of midline

       measuring 3 cms x 1.5 cms chest cavity deep.




          The post mortem report further revealed that so far as injury no.9


was concerned, the weapon had cut the skin and muscles of chest had


entered the chest cavity in 5th intercostals space, and pierced the lower


lobe of left lung on which it measures 2 cms x 0.5 cms x 0.5 cms deep.


According to the opinion of the Doctor, the death was due to shock and


haemorrhage as a result of the aforesaid injuries.




10.      The medical examination report of complainant Shankara, aged


18 years dated 26.3.1996 revealed the following injuries on his person :




  (1)        Incised wound seen on the left side of abdomen measuring 1-

             1/2 cm x 0.5 cm x just below the last rib on the left side at

             mid clavicular line;


  (2)        Incised   wound seen   on the  front of right  fore  at  lower  1/3rd

             measuring 1-1/2 cm x 1 cm, skin deep;


  (3)        Incised   wound seen   on the  medial  side  of left  thumb,  2-1/2

             cm x 1/2 cm;





                                                                                       6


  (4)       Incised   wound   seen   on   the   left   upper   arm   on   the   detoid

            muscle measuring 1-1/2 cm x 1/2 cm skin deep;


  (5)       Incised wound seen on the left cheek measuring 1-1/2 cm x

            1/2 cm skin deep.




11.      Dr.   B.R.S.   Kashyap   (PW.5)   who   conducted   post   mortem


examination on the body of Murthy Prasad explained in his deposition


in the court that it was not normally possible  to cause  injuries to the


deceased with weapon Ext.MO.1 if held with both of its arms together


while inflicting the injuries.  However, if the sharp edge and tip of the


scissors is held open while assaulting, the injuries can be caused.   So


far   as   the   evidence   of   Dr.   H.   Venkatesh   (PW.6)   who   examined


Shankara   (PW.8)   complainant   is   concerned,   he   deposed   that   injuries


found on his person could be caused of sharp edged weapon.  Thus, in


view of the above, there could be no dispute that as per the opinion of


Doctors, it was possible to cause the injuries found on the person of the


deceased and the complainant with scissors in case the sharp edge and


tip of the scissors is held open at the time of assault.




12.      Material Contradictions  :




(I)      Evidence of Witnesses:





                                                                                    7


               Murthyalappa (PW.2), and Smt. Ramanjanamma  (PW.3),


the brother-in-law and sister of the deceased, respectively, deposed in


the Court that they made a visit to the hospital where Shankara (PW.8)


had been admitted and he had told to both of them that the appellant


had   killed   Murthy   Prasad,   and   caused   injuries   to   him.   Though


Shankara (PW.8) complainant himself deposed in his examination-in-


chief   that   he  came  to   know  about   the  death   of  his   brother   only   after


being discharged from the hospital living therein as indoor patient for


15 days.


         Shankara (PW.8), while lodging the complaint stated as under:


          "On 25.3.1996 at about 8.00 P.M. the accused younger

          brother of Rudresh came to the Super Hair Style Shop

          of the deceased, elder brother of the complainant viz.,

          Murthy   Prasad   and   demanded   Rs.150/-   from   him.

          Since   he   did   not   give   the   money   demanded,   the

          accused   got   angry   and   threatened   that   he   would   take

          care   of   him   later.   He   once   again   came   back   at   9.30

          P.M. to the shop of the complainant and with intent to

          murder   the   complainant   and   his   elder   brother,   he

          sought   shelter   in   the   shop,   had   food   and   slept   there

          itself."




   But, in the court Shankara (PW.8) deposed:


          "Last year on one day at about 8 p.m. the accused came

          to   our   saloon   and   enquired   me   about   my   brother.   I

          informed the accused that my brother had gone out and

          he will be returning soon. Accused stayed in my saloon

          only. My brother Murthy Prasad returned to Saloon at





                                                                                       8


         about   9   p.m.   Myself,   my   brother   and   accused   took

         meals in the saloon and slept in the saloon."




                     Thus, it is evident that Shankara (PW.8) in his deposition in


court did not mention about the first visit of the appellant and demand


of Rs.150/- from Murthy Prasad.




(II)    Medical Evidence & Ocular Evidence:


           As per the medical evidence, injury nos.7 and 9 found on the


person of Murthy Prasad deceased had been fatal and could be caused


with the pointed part of the scissors, if used holding sharp edge and tip


of the scissors open, at the time of assault.


                In   his   oral   complaint   on   26.3.1996,   Shankara   (PW.8)   had


stated that the accused caused the injuries with knife.  He deposed in


the Court:


                 "Accused   was   stabbing   my   brother   with   a

         scissors. He  stabbed on the stomach  of my brother...

         Accused also stabbed me from the  scissors  on my left

         side   of   stomach,   on   right   hand   and   on   the   left

         shoulder...Now  I  see   the   scissors  M.O.1,   the  accused

         assaulted   me   and   my   brother   with   M.O.1".

         (Emphasis added)

 


 Thus,  it  is   apparent   from  the  above  that  Shankara   (PW.8)  was  not


 sure   as   to   whether   injuries   were   caused   by   knife     or   scissors.   No


 explanation came forward as to whether the complainant, Shankara




                                                                                       9


(PW.8) was capable to understand the distinction between knife and


scissors.


(III)    Identity of the accused:


         As   per   Ramanjanamma   (PW.3),   brother   of   one   Rudresh


murdered  Murthy Prasad. According to Sriram (PW.4), the brother


of Umesh assaulted them: "I do not know who is brother of Umesh. I


do not know the accused." Shankara (PW.8) refers to the accused as


brother   of   Rudresh.   Abdul   Suban   (PW.17)   stated   that   "I   tried   to


ascertain   and   search   for   Rudresh   but   he   was   not   found.   I   did   not


enquire   the   father   of   the   accused   and   his   family   members   about


Rudresh".


(IV)     FSL Report:


         As   per   Abdul   Suban   (PW.17),   he   sent   all   the   seized   articles


including   M.O.1   for   FSL   examination   through   Police   Constable


2313   on   2.6.1996   and   received   back   on   7.6.1996.   However,   FSL


report   was not produced before the Court.   Abdul Suban (PW.17)


has admitted that he received the Post Mortem report and FSL report


and after completing the investigation he submitted the charge sheet


on 27.6.1996. No explanation has been furnished as to why this FSL


has   not   been   produced   before   the   court   as   it   was   necessary   to





                                                                                     10


         ascertain as to whether M.O.1 was actually used in the commission


         of offence or not.


         (V)     Recovery of weapon:


                 As per Abdul Suban (PW.17) the accused  in the presence of


         panchas had seen the occurrence and also took out a scissors hidden


         under a stone slab near the saloon. He seized the scissors M.O.1 in


         the   presence   of   Panchas   under   Panchnama   Exh.   P-8.   As   per   the


         evidence  of Ganganarasaiah  (PW.9)  the scissors  was  in the  bucket


         which  was  filled   with  water.   The  bucket  was  inside   the  shop.  The


         police   alone   saw   it.     Narayanaswamy   (PW.15)   stated   that   the


         accused   told him  that he  committed  the  offence  and  he took  out a


         scissors kept under a stone slab. Police seized the same and wrapped


         in a cloth and drawn a mahazar.   He signed the mahazar and stated


         that  M.O.1 was the scissors seized by the police.


   

 

       13.      The   trial   Court   has   taken   into   consideration   each   and   every


       discrepancy/contradictions   referred   to   hereinabove.   However,   the


       High   Court   has   dealt   with   the   case   observing   that   presence   of


       Shankara   (PW.8)   at   the   place   of   occurrence   has   not   been   disputed.


       Injuries found on his person are also supported by the evidence and


       particularly other statements  made  by Shankara (PW.8) in the Court




                                                                                          11


which were worth acceptance regarding his staying outside for some


time. The High Court came to the conclusion that there was nothing


unnatural in his statement.  However, the High Court did not deal with


the contradictions referred hereinabove.  




14.    The   contradiction   in   the   statement   of   Shankara   (PW.8)   in   the


court as compared with his statement before the police under Section


161 Cr.P.C. also demolishes the aspect of motive.




15.    There   was   delay   in   lodging   the   FIR.   In   the   present   case,   the


alleged occurrence took place at 2.00 p.m. and the police station was


hardly at a distance of 1 K.M. from the place of the occurrence and


Shankara (PW.8) had never deposed that he had become unconscious,


the delay has not been explained.  




16.    Abdul   Suban   (PW.17),   the   I.O.   consistently   deposed   that   he


was searching for Rudresh. Admittedly, even as per the prosecution,


author of the crime had been Shankar-appellant    and not his brother


Rudresh. We fail to understand as for what reason the I.O. was trying


to apprehend the brother of the accused.




17.    In all criminal cases, normal discrepancies are bound to occur


in   the   depositions   of  witnesses   due   to   normal   errors   of   observation,




                                                                                      12


namely,   errors   of   memory   due   to   lapse   of   time   or   due   to   mental


disposition such as shock and horror at the time of occurrence.  Where


the   omissions   amount   to   a   contradiction,   creating   a   serious   doubt


about   the   truthfulness   of   the   witness   and   other   witnesses   also   make


material   improvement   while   deposing   in   the   court,   such   evidence


cannot   be   safe   to   rely   upon.     However,   minor   contradictions,


inconsistencies,   embellishments   or   improvements   on   trivial   matters


which   do   not   affect   the   core   of   the   prosecution   case,   should   not   be


made a ground on which the evidence can be rejected in its entirety.


The court has to form its opinion about the credibility of the witness


and record a finding as to whether his deposition inspires confidence.


"Exaggerations per se do not render the evidence brittle. But it can be


one of the factors to test credibility of the prosecution version, when


the   entire   evidence   is   put   in   a   crucible   for   being   tested   on   the


touchstone of credibility." Therefore, mere marginal variations in the


statements   of   a   witness   cannot   be   dubbed   as   improvements   as   the


same   may   be   elaborations   of   the   statement   made   by   the   witness


earlier.     "Irrelevant   details   which   do   not   in   any   way   corrode   the


credibility   of   a   witness   cannot   be   labelled   as   omissions   or


contradictions."  The   omissions   which   amount   to   contradictions   in


material   particulars,   i.e.,   materially   affect   the   trial   or   core   of   the




                                                                                        13


 prosecution's   case,   render   the   testimony   of   the   witness   liable   to   be


 discredited.   [Vide:  State  Represented   by   Inspector   of   Police  v.


 Saravanan   &   Anr.,  AIR   2009   SC   152;  Arumugam   v.   State,   AIR


 2009 SC 331;  Mahendra Pratap Singh v. State of Uttar Pradesh,


 (2009) 11 SCC 334; Dr. Sunil Kumar Sambhudayal Gupta & Ors.


 v. State of Maharashtra, JT 2010 (12) SC 287;   Vijay  @ Chinee v.


 State of M.P., (2010) 8 SCC 191;  State of U.P. v. Naresh & Ors.,


 (2011) 4  SCC  324;  and  Brahm Swaroop  &  Anr. v.  State   of  U.P.,


 AIR 2011 SC 280].


 

                  Where   the   omission(s)   amount  to   a   contradiction,   creating   a


serious doubt about the truthfulness of a witness and other witness also


make   material   improvements   before   the   court   in   order   to   make   the


evidence   acceptable,   it   cannot   be   safe   to   rely   upon   such   evidence.


(Vide : State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106).




 18.     If   the   case   in   hand   is   examined   in   the   light   of   the   aforesaid


 settled   legal   proposition,   the   prosecution   has   definitely   made   an


 attempt   to   establish   the   presence   of   the   accused   in   the   shop   and


 Shankara (PW.8) is the only eye witness. His presence also cannot be


 doubted in view of the fact that he himself got injured in the incident.


 However, the question does arise  as under what circumstances he has




                                                                                           14


told his sister  and brother-in-law  that his  brother  has  been killed  by


accused-appellant when in his substantive statement before the court


he has deposed that he came to know about the death of   his brother


after   being   discharged   from   the   hospital   and   he   remained   there    as


indoor patient for 15 days.    Such a statement made in the court also


creates a doubt as to whether he could be the author of the complaint


for the reason, that in the complaint lodged by him on 26.3.1996 he


has stated that his brother had died. Similarly, non-production of the


FSL   report   in   the   court   by   the   prosecution   is   fatal   as   in   absence


thereof it was difficult for the court to reach to the conclusion as to


whether the offence has been committed with M.O.1.


                More   so,   after   the   incident,   Abdul   Suban   (PW.17)   had


been busy in searching Rudresh, brother of the accused and he made


no attempt to search the accused.   These factors clearly indicate that


investigation has not been conducted fairly.




19.     It is settled legal proposition that in exceptional  circumstances


the appellate court under compelling circumstances should reverse the


judgment of acquittal of the court below if the findings so recorded by


the court below are found to be perverse, i.e., the conclusions of the


court   below   are   contrary   to   the   evidence   on   record   or   its   entire





                                                                                      15


approach in dealing with the evidence is found to be patently illegal


leading to miscarriage of justice or its judgment is unreasonable based


on erroneous law and facts on the record of the case. While dealing so,


the appellate court must bear in mind the presumption of innocence of


the accused and further that acquittal by the court below bolsters the


presumption of his innocence. (Vide: Abrar v. State of U.P., (2011) 2


SCC 750; and Rukia Begum & Ors. v. State of Karnataka, (2011) 4


SCC 779).


20.    In view of the above, we are of the considered opinion that the


High Court committed an error in recording the   finding of fact that


the   prosecution   succeeded   in   proving   the   case   beyond   reasonable


doubt. The High Court failed to meet the grounds pointed out by the


trial Court discarding the case of prosecution  and thus, the findings of


fact recorded by the High Court remain perverse.


               In view of the above, the appeal succeeds and is allowed.


The judgment and order of the High Court dated 28.2.2007 is hereby


set aside and judgment and order of the trial Court dated 31.10.1998


passed   in  Sessions   Case   No.366  of  1996   is   restored.     The   appellant


has been enlarged on bail by this Court vide order dated 26.7.2010.


The bail bonds stand discharged.


                                                            ....................................J.




                                                                                            16


                                          (Dr. B.S. CHAUHAN)




                                              .....................................

J.

                                          (SWATANTER KUMAR)

New Delhi,            

June 9, 2011





                                                                           17