TaxTMI 
TaxTMI 
2022 (10) TMI 1231
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....dge for yourself whether the prosecution have established their case." 2. These appeals, by special leave, arise out of the judgment and order dated 09.07.2021 passed by the High Court of Judicature at Allahabad, Bench at Lucknow confirming the death sentence awarded to the accused appellant herein. 3. The accused appellant has been held guilty of the offence punishable under Section 302 of the Indian Penal Code (for short, "the IPC"). The trial court (Sessions Judge, Lakhimpur Kheri) sentenced the accused appellant to death under Section 302 of the IPC and pay fine of Rs. 20,000/­ and in default of payment of fine to undergo further rigorous imprisonment for one year. While the Sessions Judge, Lakhimpur Kheri made a reference to the High Court for confirmation of death sentence under Section 366 of the Code of Criminal Procedure (for short, "the CrPC"), the accused appellant preferred Criminal Appeal No. 1959 of 2016 putting in issue his conviction and sentence. The High Court dismissed the Criminal Appeal No. 1959 of 2016 filed by the accused appellant thereby confirming the death reference under Section 366 of the CrPC. 4. In such circumstances referred to above, th....
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....urwa, Hamlet­Amethi, Police Station Dhaurahara, Lakhimpur Kheri came and told that, "Last night I was sleeping with my wife & children. Then at about 1.00 o'clock in the night someone knocked at my door, I woke up and asked who was there but none replied. Then I went to the roof of my house and saw that four persons were standing outside the house. I switched on the torch. I saw that that one person who was resident of village­ Basadiha, Police Station Ishanaga and known to Ramanand fired on me by gun; I escaped and jumped and came down. Then one miscreant hit on my head by the butt of a gun. I ran away and hid in the fields and saw that the miscreants climbed into my home. I saw, smoke coming out of my home. Then I ran to Behnan Purwa and told about the incident at Crusher of Khaliq and to the people at Ramnagar Lahbadi but none came ahead. I came running here". Then I alongwith my nephew Pratap reached the house of Ramanand and saw that the wife of Ramanand namely Sangita, aged about 35 years, daughters Tulsi aged about 7 years, Laxmi aged about 5 years, Kajal aged about 3 years and a girl child of about 1½ month had been killed and the dead bodies were burning. Th....
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.... the investigating officer recorded the statements of PW­3, Baburam Hans son of Ramcharan and PW­4, Ram Kumar son of Paanchoo before whom the accused appellant is said to have made extra judicial confession. The investigating officer also recorded the statement of the PW­1, Shambhu Raidas, the first informant and PW­2, Chhatrajpal Raidas (brother of the deceased Sangeeta). 11. At the end of the investigation, charge sheet came to be filed for the offence of murder punishable under Section 302 of the IPC. The Magistrate committed the case to the Court of Sessions Judge, Lakhimpur Kheri under Section 209 of the CrPC. Upon committal, the Sessions Trial No. 379 of 2010 came to be registered. 12. On 06.07.2010 the Additional District and Sessions Judge, Fast Track Court, Lakhimpur Kheri framed charge against the accused appellant. The statement of the accused appellant was recorded. The appellant did not admit the charge and claimed to be tried. 13. The prosecution adduced the following oral evidence in support of its case: S. No. Oral Evidence - Witness 1. PW­1 Shambhu Raidas 2. PW­2 Chhatrapal Raidas 3. PW­3 Babu....
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.... 30. Police Paper No. 13 of deceased Km. Laxmi [Ex. Ka­30] 31. Specimen seal regarding deceased Km. Laxmi [Ex. Ka­31] 32. Letter to Reserve Inspector regarding deceased Km. Laxmi [Ex. Ka­32] 33. Letter to C.M.O. regarding deceased Km. Laxmi [Ex. Ka­33] 34. Inquest Report of deceased Km. Chhoti [Ex. Ka­34] 35. Photo lash of deceased Km. Chhoti @ Guddi [Ex. Ka­35] 36. Police Paper No. 13 of deceased Km. Chhoti @ Guddi [Ex. Ka­36] 37. Specimen seal regarding deceased Km. Chhoti @ Guddi [Ex. Ka­37] 38. Letter to Reserve Inspector regarding deceased Km. Chhoti @ Guddi [Ex. Ka­38] 39. Letter to C.M.O. regarding deceased Km. Chhoti @ Guddi [Ex. Ka­39] 40. Chik FIR [Ex. Ka­40] 41. Copy of general diary [Ex. Ka­41] 42. Post­mortem report of deceased Tulsi [Ex. Ka­42] 43. Post­mortem report of deceased Sangeeta [Ex. Ka­43] 44. Medical examination report of the accused [Ex. Ka­44] 15. After completion of the oral as well as documentary evidence, the statements of the accused appellant under Section ....
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....low should have discarded the evidence of discovery of weapon and the blood­stained clothes as the prosecution has not been able to prove the authorship of concealment. He would submit that in a case of circumstantial evidence, the prosecution is required to establish the continuity in the links of the chain of the circumstances so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused. 20. Mr. Reddy vociferously submitted that the PW­3 and PW­4 resply are 'got up' witnesses. The evidence in the form of extra judicial confession is nothing but a fabricated piece of evidence at the instance of the investigating officer just with a view to bolster up the case of the prosecution in the absence of any direct evidence. He would submit that both these prosecution witnesses are absolutely unreliable. 21. Mr. Reddy submitted that in a case which is based on circumstantial evidence, motive plays an important role. He would submit that the prosecution has not been able to prove the motive behind the crime. The extra marital af....
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....e of murder and imposing death penalty upon him for the gruesome murder of five of his family members. He would submit that there is no good reason to disbelieve the evidence of PW­3, Babu Ram Hans and PW­4, Ram Kumar resply before whom the accused appellant made the extra judicial confession. He further submitted that there is no good reason to even disbelieve the discovery of the weapon of offence at the instance of the accused appellant. He would submit that over and above the two incriminating circumstances in the form of extra judicial confession and the discovery of weapon of offence, there was a strong motive for the accused appellant to commit the crime. 26. Mr. Upadhyay vehemently submitted that the accused appellant desperately wanted to get married to Manju and his wife Sangeeta (deceased) was coming in his way. The accused appellant decided not only to terminate his own wife but also mercilessly killed four of his innocent minor daughters so that he may not have to take care of them after marrying Manju. He would submit that it is one of the most heinous and gruesome crimes committed by the accused appellant. 27. He further submitted that the prosecution i....
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....he persons was from the village Basadiha. One among the four persons fired at the accused appellant. The accused appellant is said to have jumped from the roof top. At that point of time, one of the four hit the accused appellant on his head with the butt of the gun. The accused appellant thereafter ran away towards a farm. The accused appellant is said to have witnessed those persons entering into his house from a distance. After sometime, he noticed smoke coming out of his house. The accused appellant went to Behnanpurwa, Khalikpurwa and Lahki for help but he was not able to procure any help. PW­1 has deposed that after the accused appellant narrated the entire incident, he himself along with one Pratap reached the house of the accused appellant. The accused appellant also accompanied the PW­1, Shambhu Raidas and Pratap. When the PW1 reached the house of the accused appellant, he saw the dead bodies of Sangeeta and the four daughters burning. PW­1 with the help of Pratap started to douse the fire with water. PW­1 has deposed that while he himself and Pratap were trying to douse the fire, the accused appellant took out his blood stained baniyaan (vest) and threw it....
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....ith the help of Pratap. PW­1 has deposed about the illicit relationship of the accused appellant with Manju. However, what is important in the evidence of the PW­1 is that from the time the PW­1 reached the police station till the last the accused appellant was at the police station under the surveillance of the police. 32. The prosecution has examined the PW­2, Chhatrapal Raidas. The PW­2 happens to be the brother of the deceased Sangeeta Devi. In his examination in chief, he has deposed about the extra marital affair of the accused appellant with Manju. He has also deposed that ten days before the incident, Sangeeta had visited his house and had narrated about the harassment that was meted towards her by the accused appellant. In his cross examination, he has deposed that he came to know about the incident at 7 o'clock in the morning through Ramanand. According to the PW­2, Ramanand had visited his house and was informed that his wife and four children were burning in the house. According to the PW­2, the accused appellant saying so left his house. The PW­2 has further deposed in his cross examination that Pratap and PW­1, Shambhu Raidas wer....
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....osecution has examined the PW­4, Ram Kumar son of Paanchoo. It is the case of the prosecution that even before the PW4, the accused appellant had made an extra judicial confession about the crime. The PW­4 in his examination in chief has deposed that at the relevant time, he was the member of the District Panchayat of BSP. He has deposed that on the very day i.e. 22.01.2010 at 6:30 in the morning Ramanand came to his house and informed that his wife and children had been assaulted and set on fire. The PW­4 told the accused appellant that he would help him provided he would tell the truth. According to the PW­4, thereafter the accused appellant confessed before him that he had killed his wife and children as he wanted to marry Manju and his wife Sangeeta was opposing him to get married. He has further deposed in his examination in chief that when he reached the village of the accused appellant, he saw that the son of Ramanand was sitting on Ramanand's lap and Ramanand was crying and talking to his son saying that he had killed his mother and sisters. In his cross examination, he has deposed that when the accused appellant visited his house at 6:30 in the morning, he ....
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.... left for the place as led by the accused appellant. On the way, the PW­6 is said to have picked up PW­2, Chhatrapal son of Rameshwar and Pratap son of Asharfi Lal, both residents of Naamdar Purwa to act as the panch witnesses for the purpose of drawing the discovery panchnama. According to the PW­6, the accused appellant led the police party to a coriander field and took out the weapon of offence i.e. Banka and also the blood stained clothes. The discovery panchnama was accordingly drawn under Section 27 of the Evidence Act, 1872. We do not propose to look into the cross examination of the PW­6 as there is hardly anything in the cross examination and not relevant for our purpose. 41. The prosecution has examined the PW­7, Inspector Yogendra Singh as the investigating officer. The PW­7 in his examination in chief has deposed that he had recorded the statements of the PW­2, Chhatrapal Raidas and others on 23.01.2010. He has deposed that he arrested the accused appellant on 24.01.2010. He has deposed that he recorded the statements of the PW­3 and PW­4 resply on 25.01.2010. Nothing turns around in the cross examination of the PW­7, Yogendra ....
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....t least two facts to be considered: a) The Factum probandum, or say, the principal fact (the fact the existence of which is supposed or proposed to be proved; & b) The Factum probans or the evidentiary fact (the fact from the existence of which that of the factum probandumis inferred). 46. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows: 1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; 2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature; 3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and 4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the ....
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....ce so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Cri LJ 1783] where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague con....
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....n or solution upon any other supposition than that of the truth of the fact which it is adduced to prove; the mode of argument resembling the method of demonstration by the reductio ad absurdum." 50. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused. ANALYSIS OF THE INCRIMINATING CIRCUMSTANCES RELIED UPON BY THE TRIAL COURT AND THE HIGH COURT DISCOVERY OF WEAPON OF OFFENCE AND BLOOD­STAINED CLOTHES 51. It is the case of the prosecution that on 24.01.2010 the accused appellant was pic....
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....ellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point....
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....so prepared by the police officer must be treated as tainted and the discovery evidence unreliable. In such circumstances, the Court has to consider the evidence of the investigating officer who deposed to the fact of discovery based on the statement elicited from the accused on its own worth. 55. Applying the aforesaid principle of law, we find the evidence of the investigating officer not only unreliable but we can go to the extent to saying that the same does not constitute legal evidence. 56. The requirement of law that needs to be fulfilled before accepting the evidence of discovery is that by proving the contents of the panchnama. The investigating officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the investigating officer has successfully proved the contents of the discovery panchnama in accordance with law, then in that case the prosecution may be justified in relying upon such evidence and the trial court may also accept the evidence. In the present case, what we have noticed from the oral evidence of the investigating officer, PW­7, Yogendra Singh is that he has not proved the contents of the discovery panchnama....
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....dden at a secret place by me which I can get recovered by going there." In expectation of recovery of murder weapon and blood­stained clothes, I­ the Station House Officer Yogendra Singh alongwith aforesaid Hamrahis departed carrying accused Ramanand alias Nandlal Bharti by official jeep UP70AG0326 alongwith driver Raj Kishor Dixit for the destination pointed out by the accused, vide Rapat No.­ 7 time 07.15..." [Emphasis supplied] 58. We shall now look into the oral evidence of the PW­7, Investigating Officer wherein, in his examination in chief, he has deposed as under: "In January 2010 I was posted as Station House Officer, Kotwali Dhaurahara. On 22.1.10, I myself had taken the investigation of aforesaid case. On that day I had copied chik, rapat and recorded the statements of chik writer H. Constable Dhaniram Verma and complainant of the case. After recording the statement of complainant of the case Shambhu Raidas I inspected the occurrence spot on his pointing out and prepared the site plan which is present on record; on which Exhibit Ka­6 has been marked. And I had also recorded the statement of hearsay witnesses Ahmad Hussain and Nizamuddin. On....
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....ealment. The contents of the panchnama cannot be read into evidence as those do not constitute substantive evidence. 61. Further, the examination­in­chief of the PW­6, Sub­Inspector and PW­7, investigating officer does not indicate that they were read over the panchnama (Exh.5) before it was exhibited, since one of the panch witnesses was not examined and the second panch witness though examined yet has not said a word about the proceedings of the discovery panchnama. Everything thereafter fell upon the oral evidence of the investigating officer and the Sub­Inspector (PW­6). 62. In the aforesaid context, we may refer to and rely upon the decision of this Court in the case of Murli v. State of Rajasthan reported in (2009) 9 SCC 417, held as under: "34. The contents of the panchnama are not the substantive evidence. The law is settled on that issue. What is substantive evidence is what has been stated by the panchas or the person concerned in the witness box......." [Emphasis supplied] 63. One another serious infirmity which has surfaced is in regard to the authorship of concealment by the person who is said to have discove....
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....is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." 67. What emerges from the evidence in the form of panchnama is that the appellant stated before the panch witnesses to the effect that "I will show you the weapon used in the commission of offence". This is the exact statement which we could read from the discovery panchnama and the Investigating Officer also could not have d....
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....lant cannot, by itself, prove that he who pointed out the weapon wielded it in the offence. The statement accompanying the discovery was found to be vague to identify the authorship of concealment and it was held that pointing out of the weapon may, at the best, prove the appellant's knowledge as to where the weapon was kept. 70. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the investigating officer in his evidence, and also without proving the contents of the panchnama (Exh.5), the trial court as well as the High Court was not justified in placing reliance upon the circumstance of discovery of weapon. 71. If it is the case of the prosecution that the PW­2, Chhatarpal Raidas, s/o Rameshwar Raidas had acted as one of the panch witnesses to the drawing of the discovery panchnama, then why the PW­2, Chhatarpal Raidas in his oral evidence has not said a word about he having acted as a panch witness and the discovery of the weapon of the offence and blood stained clothes being made in his presence. The fact that he is absolutely silent in his oral evidence on the aforesaid itself casts a doubt on the very c....
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....he section. Decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is the most­quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Damu Gopinath Shinde [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301] .) No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given." [Emphasis supplied] 73. Mr. Upadhyay, the learned counsel for the State would submit that even while discarding the evidence in the form of discovery panc....
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....23.01.2010 the accused appellant is said to have visited the house of the PW­3, Babu Ram Hans at about 9:00 o'clock in the morning and sought his help. While seeking help from the PW­3, Babu Ram Hans, the accused appellant is said to have made an extra judicial confession that he had brutally killed his wife Sangeeta for not giving consent to him to marry Manju. The accused appellant is also said to have made an extra judicial confession to the PW­3, Babu Ram Hans that he had also killed his four daughters viz. Tulsi, Lakshmi, Kajal and Guddi and thereby had committed a huge mistake. The trial court and the High Court have believed the so called extra judicial confession said to have been made by the accused appellant before the PW­3, Babu Ram Hans. However, the trial court as well as the High Court should have put a question to themselves before believing the extra judicial confession whether the accused appellant was a free man on 23.01.2010 so as to reach the house of PW­3, Babu Ram Hans at 9:00 o'clock in the morning and make an extra judicial confession. This is one of the basic infirmities we have noticed in the judgment of both the Courts. There is cogent....
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.... between 06:30 A.M. to 07:30 A.M. One another aspect that makes the oral evidence of the PW­4, Ram Kumar very doubtful is that his house is situated at a distance of 6­7 kilometers from Dhaurhara and according to the PW­4, the accused appellant visited his house all the way walking from his own house. The PW­4, Ram Kumar also appears to be a 'got up' witness only for the purpose of creating evidence in the form of extra judicial confession. At this stage, we may once again go back to the oral evidence of the PW­1, Shambhu Raidas (Exh.1). In his evidence, he has said, "the inspector had not interrogated me at the police station. The inspector had visited the place of the incident in his vehicle. I left the police station at the 02:00 o'clock in the night. I had stayed at the police station right from the time I lodged the FIR in the morning till 02:00 o'clock in the night and Ramanand also stayed with me at the police station. The police official had challaned Ramanand on the third day. Till then Ramanand was continuously staying at the police station. [Emphasis supplied] 78. The PW­2, Chhatrapal Raidas in his evidence has deposed, "I came to know about th....
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....rd confessions under Section 164 of the CrPC or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extra judicial confessions, two questions arise: (i) were they made voluntarily? And (ii) are they true? As the Section enacts, a confession made by an accused person is irrelevant in a criminal proceedings, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused ....
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....ated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe Evidence, 9th Edn. Page 284). A promise is always attached to the confession, alternative while a threat is always attached to the silence­alternative; thus, in the one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the Court is to determine the absence or presence of....
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.... must inspire confidence. If the court is satisfied that the extra judicial confession is voluntary, it can be acted upon to base the conviction. 83. Considering the admissibility and evidentiary value of extra judicial confession, after referring to various judgments, in Sahadevan and Another v. State of Tamil Nadu, (2012) 6 SCC 403, this Court held as under:­ "15.1. In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259 : 1996 SCC (Cri) 59] this Court stated the principle that: (SCC p. 265, para 10) "10. An extra­judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra­judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance." x x x x 15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra­judicial confession, this Court in State of Rajasthan v. Raja Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965] stated the principle that: (SCC p. 192, para 19) "19. An extra­judicial confession, if ....
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....e of the aforesaid is that an extra judicial confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance like the case in hand. The Courts generally look for an independent reliable corroboration before placing any reliance upon an extra judicial confession. MOTIVE 86. The Courts below have relied upon the strong motive for the accused appellant to commit the crime as one of the incriminating circumstances. It is the case of the prosecution that the accused appellant desperately wanted to get married to Manju. Manju herself at the relevant point of time was a married lady. It appears from the evidence on record that the accused appellant had even got engaged with Manju during the subsistence of his marriage with the deceased Sangeeta. It also appears that the engagement ceremony was celebrated with pomp and show. However, before the accused appellant could get married to Manju, he got arrested in one offence under Section 307 of the IPC. According to the prosecution thereaf....
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.... 89. In the case of Sampath Kumar v. Inspector of Police Krishnagiri, (2012) 4 SCC 124, decided on 02.03.2012, this Court held as under: "29. In N.J. Suraj v. State [(2004) 11 SCC 346 : 2004 SCC (Cri) Supp 85] the prosecution case was based entirely upon circumstantial evidence and a motive. Having discussed the circumstances relied upon by the prosecution, this Court rejected the motive which was the only remaining circumstance relied upon by the prosecution stating that the presence of a motive was not enough for supporting a conviction, for it is well settled that the chain of circumstances should be such as to lead to an irresistible conclusion, that is incompatible with the innocence of the accused. 30. To the same effect is the decision of this Court in Santosh Kumar Singh v. State [(2010) 9 SCC 747 : (2010) 3 SCC (Cri) 1469] and Rukia Begum v. State of Karnataka [(2011) 4 SCC 779 : (2011) 2 SCC (Cri) 488 : AIR 2011 SC 1585] where this Court held that motive alone in the absence of any other circumstantial evidence would not be sufficient to convict the appellant. Reference may also be made to the decision of this Court in Sunil Rai v. UT, Chandigarh [(2011)....
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.... AN ADDITIONAL LINK 92. It is the case of the prosecution all throughout that the accused appellant offered false explanation in his defence. To put it in other words, according to the courts below the say of the accused appellant that on the fateful night of the incident four unidentified persons killed his wife and daughters mercilessly and thereafter, set their dead bodies on fire stood falsified, in view of the incriminating circumstances pointing towards the guilt of the accused. According to the trial court and the High Court, the explanation offered by the accused appellant in regard to the injuries suffered by him on his head is established to be false. In such circumstances, both the courts took the view that the false explanation offered by the accused appellant is an additional link in the chain of circumstances. 93. It appears from the materials on record that in all, three further statements of the accused appellant were recorded by the trial court under Section 313 of the CrPC. This is one another unusual feature of this matter. Ordinarily and more particularly having regard to the language of Section 313 of the CrPC, the further statement of an accused is to be....
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....s not the law where there is any infirmity or lacunae in the prosecution case, the same could be cured or supplied by a false defence or a false plea which is not accepted by a Court. 97. Before a false explanation can be used as an additional link, the following essential conditions must be satisfied: (i) Various links in the chain of evidence led by the prosecution have been satisfactorily proved. (ii) Such circumstances points to the guilt of the accused as reasonable defence. (iii) The circumstance is in proximity to the time and situation. 98. If the aforesaid conditions are fulfilled only then a Court use a false explanation or a false defence as an additional link to lend as assurance to the Court and not otherwise. [see Sharad Biridhichand Sarda v. State of Maharashtra, AIR (1984) SC 1622] 99. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. In ....
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....guilt." [Emphasis supplied] 102. The above quote thus seemingly concedes a preference to wrongful acquittal compared to the risk of wrongful conviction. Such is the abiding jurisprudential concern to eschew even the remotest possibility of unmerited conviction. 103. This applies with full force particularly in fact situations like the one on hand where the charge is sought to be established by circumstantial evidence. These enunciations are so well entrenched that we do not wish to burden the present narration by referring to the decisions of this Court in this regard. 104. Addressing this aspect, however, is the following extract also from the same treatise "The Law of Evidence" fifth edition by Ian Dennis at page 483: "Where the case against the accused depends wholly or partly on inferences from circumstantial evidence, fact­finders cannot logically convict unless they are sure that inferences of guilt are the only ones that can reasonably be drawn. If they think that there are possible innocent explanations for circumstantial evidence that are not "merely fanciful", it must follow that there is a reasonable doubt about guilt. There is no rul....
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.... injuries noted are in the form of lacerated wounds, whereas the other two injuries as superfluous burn injuries. It was argued before us by the learned counsel appearing for the State that the injuries found on the body of the accused appellant points towards his complicity in the crime. It was also sought to be argued that the explanation offered by the accused appellant in regard to the injuries suffered by him is falsified by the circumstantial evidence on record. On the other hand, the defence also argued that the non­explanation of the injuries suffered by the accused appellant at the end of the prosecution is fatal. Thus, both the sides want to make the most of the injuries which were found on the body of the accused appellant. 107. We are of the view that both the sides are wrong in their own way. The settled law is that if there are serious injuries or grievous injuries found on the body of the accused then the prosecution owes a duty to explain such injuries and the failure on the part of the prosecution to explain may point towards the innocence of the accused. At the same time, the well­settled law is that if the injuries are superfluous or minor in nature th....
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...., the non­explanation of injuries on accused by prosecution was held to be significant when there are circumstances which makes prosecution case doubtful. For the relevant purpose, the relevant extract of paragraph 10 is extracted as below: "10. ....But non­explanation of injuries assumes significance when there are material circumstances which make the prosecution case doubtful. Reference in this connection may be made to recent decisions of this Court in the cases of Takhaji Hiraji v. Thakore Kubersing Chamansing [(2001) 6 SCC 145 : 2001 SCC (Cri) 1070] and Kashiram v. State of M.P. [(2002) 1 SCC 71 : 2002 SCC (Cri) 68]. In the present case, non­explanation of injuries on the appellant by the prosecution assumes significance as there are circumstances which make the prosecution case, showing the complicity of the appellant with the crime, highly doubtful." [Emphasis supplied] 112. In Mohar Rai and Bharath Rai v. State of Bihar, AIR 1968 SC 1281, it was observed: "6. .....In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is ....
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....us, none of the pieces of evidence relied on as incriminating by the courts below, can be treated as incriminating pieces of circumstantial evidence against the accused. Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. In Shankarlal Gyarasilal (supra), this Court cautioned ­ "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions". This Court has held time and again that between "may be true" and "must be true" there is a long di....
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....ce in the discharge of his duties as a defence counsel would certainly be the constitutional guaranteed expectation. The presence of counsel on record means effective, genuine and faithful presence and not a mere farcical, sham or a virtual presence that is illusory, if not fraudulent. 120. Article 39A of the Constitution speaks about free legal aid which reads thus: "39A. Equal justice and free legal aid.-The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities." 121. Section 304 of the CrPC refers to legal aid to the accused at State expenses in certain cases which reads thus: "304. Legal aid to accused at State expense in certain cases.-(1)Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence a....
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....f competing interests in a criminal trial: the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences. x x x x 35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice­often referred to as the duty to vindicate and uphold the "majesty of the law". Due administration of justice has always been viewed as a continuous process, not confined to determination of the ....
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....ly. 126. This case provides us an opportunity to remind the learned District and Sessions Judges across the country conducting sessions trials, more particularly relating to serious offences involving severe sentences, to appoint experienced lawyers who had conducted such cases in the past. It is desirable that in such cases senior advocate practising in the trial court shall be requested to conduct the case himself or herself on behalf of the undefended accused or at least provide good guidance to the advocate who is appointed as amicus curiae or an advocate from the legal aid panel to defend the case of the accused persons. Then only the effective and meaningful legal aid would be said to have been provided to the accused. 127. This Court, in the case of Madhav Hayawadanrao Hoskot v. State of Maharashtra, reported in (1978) 3 SCC 544, had emphasized upon the need of securing the competent and efficient legal services for a prisoner who is standing trial in a criminal case or for the commission of alleged offence. This Court, in paragraphs 14,15 and 18 of the above judgment, held as under: "14. The other ingredient of fair procedure to a prisoner, who has to seek hi....
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....This noble idea cannot be realised if the poor man charged with crime has to face his accusers without a lawyer to assist him. x x x x 18. The American Bar Association has upheld the fundamental premise that counsel should be provided in the criminal proceedings for offences punishable by loss of liberty, except those types of offences for which such punishment is not likely to be imposed. Thus, in America, strengthened by the Powell, Gideon and Hamlin cases, counsel for the accused in the more serious class of cases which threaten a person with imprisonment is regarded as an essential component of the administration of criminal justice and as part of procedural fair­play. This is so without regard to the sixth amendment because lawyer participation is ordinarily an assurance that deprivation of liberty will not be in violation of procedure established by law. In short, it is the warp and woof of fair procedure in a sophisticated, legalistic system plus lay illiterate indigents aplenty. The Indian socio­legal milieu makes free legal service, at trial and higher levels, an imperative processual piece of criminal justice where deprivation of life or personal....