Bombay High Court
Prashant S/O. Bhaurao Mahatme(In Jail) vs State Of Maharashtra Thr. P.S.O., P.S. ... on 4 December, 2021
Author: M. S. Sonak
Bench: M.S. Sonak, Pushpa V. Ganediwala
1 Criminal Appeal No.557.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.557 OF 2018
Prashant s/o Bhaurao Mahatme,
Aged 38 years,
Occupation-Private Work,
R/o. Ward No.3, Near Bhanegaon,
Tah. Saoner, District-Nagpur.
(At present in Central Jail, Nagpur) .. Appellant
.. Versus ..
State of Maharashtra,
Through Police Station Officer,
Police Station, Khaparkheda,
Tah. Saoner, District-Nagpur. . Respondent
..........
Mr A.K. Bhangde, Advocate for Appellant,
Mr M.J. Khan, APP for Respondent-State.
..........
Coram: M.S. Sonak and
Pushpa V. Ganediwala, JJ.
Reserved on : 02.12.2021.
Pronounced on : 04.12.2021.
JUDGMENT (PER: M. S. SONAK, J.)
Heard Mr. A.K. Bhangde, learned counsel for the appellant, and Mr. M.J. Khan learned Additional Public Prosecutor for the respondent-State.
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2. This appeal is directed against the judgment and order dated 31.01.2018 made by the learned Sessions Judge, Nagpur in Sessions Case No.471/2014, convicting the appellant for an offense under Section 302 of the Indian Penal Code and sentencing him to undergo life imprisonment and to pay a fine of Rs.3,000/- and in- default to suffer simple imprisonment for 6 months. The appellant is also convicted under Section 201 of the Indian Penal Code and sentenced to rigorous imprisonment for 2 years and to pay a fine of Rs.1,000/- and in default to suffer simple imprisonment for 3 months.
3. The prosecution version is that on the night intervening 15.7.2014 and 16.7.2014, the appellant strangulated his wife Rajni and made it appear that she has committed suicide by hanging herself. The prosecution has alleged that the appellant began harassing Rajni after a daughter with a hole in the heart was born to them. The prosecution has also alleged that the appellant was having an illicit affair with the neighboring lady. All these factors were alleged to be the motive for strangulating Rajni.
4. The learned Sessions Judge framed the charge and the appellant pleaded his innocence. The prosecution examined 18 witnesses. The appellant was questioned under section 313 of the ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 ::: 3 Criminal Appeal No.557.18.odt Code of Criminal Procedure. He maintained that this was a case of suicide by Rajni. The appellant did not examine himself or the defense witnesses. By the impugned judgment and order, the learned Sessions Judge convicted and sentenced the appellant. Hence, the present appeal.
5. Mr. Bhangde, learned counsel for the appellant submitted that this is a case of circumstantial evidence and the principles applicable for evaluation of circumstantial evidence have been ignored by the learned Sessions Judge in this case. He submitted that there were several infirmities in the medical evidence and based on such evidence, the learned Sessions Judge was not justified in concluding that this was a case of homicidal death as opposed to suicidal. He referred to Modi's Textbook of Medical Jurisprudence and Toxicology, Twenty-Fourth Edition-2011, to submit that the evidence militated against the theory of strangulation, but supported the defense version that Rajni had committed suicide by hanging herself. He relies on Balaji Gunthu Dhule .vs. State of Maharashtra, (2012) 11 SCC 685, to submit that in a case of circumstantial evidence, the conviction only based on postmortem report will not be proper.
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6. Mr. Bhangde submitted that the evidence of the prosecution witnesses on the aspect of so-called motive is completely contradictory and deserves no credence. He submits that the learned Sessions Judge has misinterpreted the provisions of Section 106 of the Evidence Act to convict the appellant. He relies on the State of Punjab .vs. Bhajan Singh and others, (1975) 4 SCC 472, Nagendra Sah .vs. State of Bihar, 2021 SCC OnLine SC 717 and Shivaji Chintappa Patil .vs. State of Maharashtra, (2021) 5 SCC 626, in support of his contentions.
7. Mr. Bhangde submitted that, in this case, there were suicide notes found by the investigating agency. The investigating officer has admitted that the suicide notes were in the handwriting of Rajni. Even the handwriting experts have opined to this effect. He submitted that this crucial aspect has been discarded by the learned Sessions Judge based on some hypothetical theory neither put forth by the prosecution nor established by the prosecution evidence.
8. Mr. Bhangde submitted that for all the aforesaid reasons, the impugned judgment and order is liable to be set aside.
9. Mr. M.J. Khan, learned Additional Public Prosecutor for the respondent-State, defended the impugned judgment and order ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 ::: 5 Criminal Appeal No.557.18.odt based on the reasoning reflected therein. He submitted that there is overwhelming evidence that the appellant and Rajni were residing along with their minor daughter in a separate portion of the house which was independent of the portion in which the parents and the appellant's brother were residing. He submitted that the medical evidence points to homicidal death by strangulation. He, therefore, submits that the provisions of Section 106 of the Evidence Act were attracted and the onus was on the appellant to prove the facts within his special knowledge leading to the death of Rajni. He submits that the appellant has failed on this aspect and therefore the impugned judgment and order warrants no interference. He relies on Trimukh Maroti Kirkan .vs. State of Maharashtra, 2006 (10) SCC 681 and Mandhari .vs. State of Chhattisgarh, 2002 LawSuit (SC) 459, in support of his contentions.
10. Mr. Khan also relies upon 'Medical Jurisprudence and Toxicology by Dr. Sarla Gupta (Agrawal) 2016 Edition, to submit that most of the characteristics in the case of death by strangulation were present and there was no infirmity in the medical evidence that this was not a case of suicide, but a case of homicide by strangulation.
11. Mr. Khan submitted that there was evidence of harassment as well as an illicit affair between the appellant and the ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 ::: 6 Criminal Appeal No.557.18.odt neighboring lady. He submits that this is the motive for eliminating Rajni. He submits that in this case the chain of circumstance was complete and the conviction was quite correctly recorded. Mr. Khan admitted that there may be even some lapses on the part of investigating agency when it comes to the suicide note. He, however, submitted that the appellant cannot take any undue advantage of such lapses and the conviction need not be reversed. Mr. Khan learned APP, for all the aforesaid reasons, submitted that this appeal may be dismissed.
12. The rival contentions now fall for our determination.
13. This is a case based on circumstantial evidence and therefore certain well-established principles in the matters of evaluation of circumstantial evidence will have to be borne in mind. Such principles have been crystallized in Sharad Birdhichand Sarda .vs. State of Maharashtra (1984) 4 SCC 116, at paragraphs 153 and 154 which read as follows :
"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 ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 ::: 7 Criminal Appeal No.557.18.odt 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 Sahebrao Bobade .vs. State of Maharashtra, where the observations were made : [SCC p.807, para 19 : SCC (Cri) p. 1047]
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
14. In this case, from the perusal of the impugned judgment and order, we find that the learned Sessions Judge has failed to enumerate the precise circumstances upon which he has relied to convict the appellant under Sections 302 and 201 of the Indian Penal Code. However, the conviction appears to be mainly based on the following circumstances:-
(i) That, the appellant and deceased Rajni were together in their portion of the house on the night of the incident, along with their minor daughter;
(ii) That, the medical evidence suggested that this was a case of homicidal death by strangulation and not a case of suicidal death.::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 :::
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15. The learned Sessions Judge has discarded the evidence of both Investigating Officer (PW-17) as well as the report of the handwriting expert that the suicide note found on the dead body of Rajni and the suicide note pasted on the kitchen door was in the handwriting of Rajni, on the ground that the investigating agency had failed to show this note or the admitted or alleged admitted writing of Rajni to Rajni's parents, brother, and sister. The learned Sessions Judge has reasoned that there was no clear evidence about the notebook handed over by the appellant's brother to the investigating agency being a notebook belonging to Rajni or containing admitted handwriting of Rajni. The learned Sessions Judge has reasoned that this was a lapse on the part of the investigation agencies, but that the prosecution case ought not to suffer on account of such lapse.
16. As noted earlier, one of the first principles in a case based on circumstantial evidence is that the circumstance from which the conclusion of guilt is to be drawn should be "fully established". This is elaborated by the Hon'ble Supreme Court by observing that the circumstances 'must' or 'should be established and not merely that the circumstance 'may' be established. There is a long-distance between 'must' and 'may' and this distance has to be traversed by the prosecution based on clear and cogent evidence. ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 :::
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17. Therefore, even before we examine whether, the two circumstances relied upon by the learned Sessions Judge for convicting the appellant constituted a chain of evidence so complete and not to leave any reasonable ground for the conclusion consistent with the innocence of the appellant, we must address ourselves to the issue, as to whether these two circumstances can be said to have been 'fully established' in this case.
18. The first circumstance is that the appellant and Rajni were together on the night of the incident in the portion of the house separately occupied by them. On this, there seems to be no difficulty and the prosecution can be said to have established this circumstance quite fully. The report of the death, in this case, was lodged by Rajesh Bhaurao Mahatme (PW-6), the younger brother of the appellant. In his report itself, he has stated that the appellant and Rajni were residing in a separate portion of the house and were together on the night of the incident.
19. The second circumstance concerns the opinion recorded the postmortem report and the testimony of Dr. Mulchand Gedam (PW 14) to the effect that this was a case of homicidal death due to the strangulation of Rajni and not a case of suicidal death. ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 :::
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20. The postmortem report (Exh.56) refers to the following injuries sustained by Rajni:-
(a) Ligature mark present over neck 1 cm above the level of thyroid cartilage, running obliquely upwards towards right angle of mandible and horizontally backward toward posterior aspect of neck on left side, it is grooved and pale of total length 25 cm and absent over right lateral and right postero lateral aspect of neck for 9 cm, situated 7 cm below tip of chin, 9 cm below left mastoid, 4 cm below right angle of mandible and maximum breadth 1.5 cm over front of neck in midline.
(b) Ligature mark is pale, yellowish parchment like horizontally placed Ligature mark present over neck at the level of thyroid cartilage running horizontally backwards on both side completely encircling the neck of total length 33 cm and maximum breadth is 1 cm on right lateral aspect of neck, situated 8 cm below tip of chin, 6 cm below right mastoid process, 9 cm below left mastoid process and 11 cm below occipital protuberance.
(c) Ligature mark is reddish brown parchment like horizontally placed ligature mark present over front of neck, extending upto both lateral aspect of neck, intermingling with above injury no.2 on lateral aspect of left side of neck, situated 1 cm below injury no.2 of total length 20 cm and maximum breadth is 3 cm over front of neck, situated 9 cm below tip of chin and 8 cm below right mastoid process.
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(d) Ligature mark is reddish brown and parchmentised cresentric abrasion present over right angle of mandible of size 0.7 cm red in colour.
The postmortem report states that injury no.1 is postmortem injury and injury nos.2, 3, and 4 are antemortem injuries. The postmortem report opines the probable cause of death as 'ligature strangulation.'
21. Dr. Mulchand Gedam (PW 14) has deposed in this matter in the context of the above postmortem report prepared by him. He maintained that injury nos.2 and 3 mentioned in column no.17 and corresponding internal injuries in neck mentioned as injury nos.1 to 3 in column no.20 of the postmortem report are antemortem and those were sufficient in the ordinary course of nature to cause death. He opined that the cause of the death of Rajni was ligature strangulation. He also opined that some soft material like a scarf (dupatta) or saree might have been used for causing such injuries leading to the death.
22. PW-14 was extensively cross-examined in this matter. He admitted to having seen the photographs of the dead body sent to him by the police at the time of sending the dead body for autopsy. He admitted that partial hanging is also a type of hanging. He admitted that the photographs showed that the feet of that body ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 ::: 12 Criminal Appeal No.557.18.odt were bent and in such case, there may be eventuality of partial hanging. He admitted that he did not measure the length of the neck of the dead body or the weight of the dead body. He admitted that even 4 to 5 kg weight is sufficient for hanging. He admitted that he did not examine the neck of the dead body with a microscope.
23. PW-14 admitted that apart from a neck injury, he did not notice any other resistance marks on the dead body. He admitted that he did not notice any skin, blood, or any foreign material beneath the nails of fingers of the dead body. He volunteered that he had preserved the nails of the dead body for the C.A. report. In this case, the CA report, on this aspect, is negative, in the sense that it does not support the prosecution version. He admitted that he did not notice any injury of bangles on the hands of the dead body. He deposed that the tongue was clinched between lower and upper teeth and that, he did not mention the color of the tongue in the postmortem report.
24. PW-14 admitted that the hyoid bones of the dead body were intact. He also deposed that in the case of hanging, hyoid bones are often found broken, but in case of strangulation, hyoid bones may not be broken. He admitted that he did not send the hyoid bones for an expert report. PW-14 admitted that in the ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 ::: 13 Criminal Appeal No.557.18.odt postmortem report he did not mention about cervical vertebrae of the dead body. He admitted that if the cervical vertebrae are fractured, then death can occur quickly. He admitted that he did not mention in the postmortem report whether the larynx and trachea were fractured or not. He admitted that he did not mention anything in the postmortem report about carotid arteries. He admitted that he did not mention anything about the blood coming out of the nose, mouth, and ear, in the postmortem report.
25. PW-14 was confronted with the books on Medical Jurisprudence by Dr. Gupta and Dr. Agrawal. He deposed that he agreed with the views expressed by these authors. PW-14 was also confronted with the books on Medical Jurisprudence by Dr. Dogra and Dr. Rudra. He stated that he agreed with the views of these authors. PW-14 was confronted with the views of such authors on the aspect of marks of saliva trickling down from one or other angles of the mouth to indicate that the body was hanged while it has a life. Finally, PW-14 also admitted that horizontal ligature marks can be possible in the case of hanging as well as in partial hanging.
26. Now one thing is clear from the deposition of PW-14 is that this doctor failed to perform or cause to be performed the normal and the well-accepted tests for determining, whether this was ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 ::: 14 Criminal Appeal No.557.18.odt a case of strangulation or by hanging. The learned counsel for the parties have referred us to the various books on medical jurisprudence. In the textbook of Medical Jurisprudence and Toxicology by Jaising P Modi, 2011 Edition, there is a chart that lists almost 15 aspects that are required to be examined to determine, whether the death was on account of hanging or strangulation. These books lay considerable emphasis on the status of carotid arteries, larynx trachea, hyoid bone, and some other matters.
27. As noticed earlier, in the present case, PW-14 in his deposition, admitted that hyoid bone in the dead body was intact, even though Modi's Jurisprudence suggests that in case of strangulation, there is a fracture of the larynx trachea and hyoid bone. The fracture of the larynx and trachea is very rare in case of hanging and may be found in case of judicial hanging. PW-14 admitted to not having examined whether the larynx and trachea were fractured or not.
28. The textbook of Medical Jurisprudence suggests that in case of strangulation, carotid arteries and internal coats are ordinarily ruptured. PW-14 admitted that he had not referred to the status of the carotid artery or the cervical vertebrae in the postmortem report. The medical literature points out that the ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 ::: 15 Criminal Appeal No.557.18.odt fracture or dislocation of the cervical vertebrae is quite rare in cases of strangulation, though in cases of hanging, there is fracture and dislocation of the cervical vertebrae.
29. The evidence on record shows that there were no scratches, abrasions, or bruises on the face, neck, and other parts of the body of Rajni. The Medical Jurisprudence suggests that scratches, abrasions, fingernail marks, and bruises on the face, neck, and other parts of the body are usually present in the case of strangulation. PW-14, in this case, did not even bother to measure the length of the neck of the dead body or weight of the dead body, which are again some of the factors that go into determining, whether the death was due to strangulation or hanging.
30. Having regard to the above factors, we do not think that it can be safely concluded that the prosecution, in this case, has fully established that this was a case of death by strangulation and not a case of suicide by hanging. The evidence on record, at the highest, raises suspicion on this aspect, but this suspicion in such matters is no substitute for proof. The prosecution, in this case, has not traversed the distance between 'must be' and 'maybe' when it comes to this circumstance.
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31. In the case of Balaji Dhule (supra), the Hon'ble Supreme Court has held that the conviction based only on the opinion of the doctor or the postmortem report for an offense under Section 302 of the Indian Penal Code may not be proper. The postmortem report should be in corroboration of other evidence on record. Similarly, very recently, the Hon'ble Supreme Court in the case of Nagendra Sah (supra) has held that conviction cannot be sustained only on an opinion of the medical practitioner, who conducted an autopsy and gave a report on the cause of death. The Hon'ble Supreme Court followed the decision in Balaji Dhule (supra), in aid of this proposition.
32. In Bhajan Singh and others (supra), the Hon'ble Supreme Court was concerned with the conviction recorded by the Sessions Judge, who, in the course of his judgment, had observed that the doctor, who performed postmortem examination, was careless since he failed to send the two dead bodies to the Professor of Anatomy, who might have been in a position to express an opinion after examining the hyoid bone and cervical vertebra, as to whether the death of the two persons was due to strangulation. The learned Sessions Judge had observed that although that would have been more appropriate on the part of the doctor to have sent the dead bodies to an anatomy expert, the fact that the doctor did not do so ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 ::: 17 Criminal Appeal No.557.18.odt cannot be a ground of drawing an adverse inference against the prosecution. The Hon'ble Supreme Court, however, disproved this approach and held that such lapse cannot be a ground for drawing an inference adverse to the accused. The accused cannot be made to suffer because of that omission of the doctor. The Hon'ble Supreme Court held that it would indeed be contrary to all accepted principles to give the benefit of that omission to the prosecution. The onus in a criminal trial is upon the prosecution to prove the guilt of the accused. If there be any gap or lacuna in the prosecution evidence, the accused and not the prosecution would be entitled to get the benefit of that.
33. In this case, even if we were to proceed on the basis that the prosecution has established the circumstance that the death of Rajni was not suicidal, but was homicidal due to her strangulation, the question still remains, as to whether the appellant was the author of this crime.
34. Mr. Khan as well as the learned Sessions Judge almost exclusively relied on the provisions of Section 106 of the Evidence Act in this regard.
35. In Shivaji Patil (supra), the Hon'ble Supreme Court has ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 ::: 18 Criminal Appeal No.557.18.odt explained that it is well settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond a reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused.
36. In Shivaji Patil (supra), the Hon'ble Supreme Court referred to Mod's Medical Jurisprudence and Toxicology, in which, it was observed that homicidal hanging, though rare, has been recorded. Usually, more than one person is involved in the act, unless the victim is a child or feeble, or is rendered unconscious by some intoxicating or narcotic drug. In a case, where resistance has been offered, marks of violence on the body and marks of a struggle or footprints of several persons at or near the place of the occurrence are likely to be found. In the present case as well, no marks are suggesting of violence or struggle. Besides, the portion of the house in which the couple lives and the portion in which appellant's parents and brother live, were separated only by a wall. There is no evidence ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 ::: 19 Criminal Appeal No.557.18.odt of any hues or cries as held. In this case, the prosecution has not charged the parents or the brother with conspiracy or abetment. Rather the evidence of Rajni's family members suggests that the appellant's parents were supportive of her. Even now the minor daughter lives with the appellant's family and not with Rajni's family. All these circumstances should have been considered before relying on Section 106 of the Evidence Act.
37. The observations in paragraphs 20 to 23 of Shivaji Patil (supra) are most relevant in the context of the discussion on the provisions of Section 106 of the Evidence Act and therefore, the same are reproduced for the convenience of reference:-
"20. That leads us to the reliance placed by the High Court as well as the trial court on the provisions of Section 106 of the Evidence Act. In Subramaniam, this Court had occasion to consider the similar case of the husband and wife remaining within the four walls of a house and death taking place. It will be relevant to refer to the following observations of this Court:-
"23. So far as the circumstance that they had been living together is concerned, indisputably, the entirety of the situation should be taken into consideration. Ordinarily when the husband and wife remained within the four walls of a house and a death by homicide takes place it will be for the husband to explain the circumstances in which she might have died. However, we cannot lose sight of the fact that although the same may be considered to be a strong circumstance but that by alone in the absence of any evidence of violence on the deceased cannot be held ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 ::: 20 Criminal Appeal No.557.18.odt to be conclusive. It may be difficult to arrive at a conclusion that the husband and the husband alone was responsible therefor."
21. In Subramaniam, reliance was placed on behalf of the State on the judgments of this Court in Trimukh Maroti Kirkan v. State of Maharashtra and Ponnusamy v. State of Tamil Nadu. This Court observed thus:-
"26. In both the aforementioned cases, the death occurred due to violence. In this case, there was no mark of violence. The appellant has been found to be wholly innocent. So far as the charges under Section 498-A or Section 4 of the Dowry Prohibition Act is concerned, the evidence of the parents of the deceased being PW 1 and PW 2 as also the mediators, PWs 4 and 5 have been disbelieved by both the courts below. That part of the prosecution story suggesting strong motive on the part of the appellant to commit the murder, thus, has been ruled out......"
22. It will also be relevant to refer to the following observations of this Court in the case of Gargi :-
"33.1. Insofar as the "last seen theory" is concerned, there is no doubt that the appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The trial court and the High Court have proceeded on the assumption that Section 106 of the Evidence Act directly operates against the appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das v. State of Bihar ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 ::: 21 Criminal Appeal No.557.18.odt in the following: (SCC p. 197, para 10) "10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused.""
23. It could thus be seen, that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused.
38. Now, in this case, we cannot even say that the two circumstances established by the prosecution are consistent only with the hypothesis of the guilt of the accused or are not explainable or any other hypothesis, except that the accused is guilty. The two circumstances cannot, in the facts of the present case, be regarded as of conclusive nature and tending to incriminate the appellant. These circumstances do not completely exclude possible hypotheses put forth on behalf of the appellant. In this case, the chain is also not so ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 ::: 22 Criminal Appeal No.557.18.odt complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the appellant or to show that in all human probability, the act must have been done by the present appellant.
39. This is because, in this case, two suicide notes were found. One of the notes was on the body of Rajni and the other was pasted on the kitchen door. The investigating officer (PW 17), in the present case, has deposed that he seized these two suicide notes from the spot of the incident. He has deposed about the seizure of two notebooks containing the admitted writing of Rajni as well the appellant. He deposed that he sent this material for the opinion of the handwriting expert. The report of the handwriting expert is produced on record. The handwriting expert opined that the suicide note is in the handwriting of the person who had made the admitted writings (Exs. N1 to N10). The handwriting expert has also opined that the suicide notes are not in the handwriting of the appellant. The suicide notes completely exonerate the appellant and his family members.
40. The learned Sessions Judge has discarded these suicide notes on the ground that there were some lapses in the investigation on the part of the investigating agency. The learned Sessions Judge ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 ::: 23 Criminal Appeal No.557.18.odt has reasoned that the notebook, which was supposed to contain the admitted handwriting samples of Rajni, was handed over by the brother of the appellant to the investigating agency. Further, the investigating officer had failed to show the suicide notes or this notebook containing the alleged admitted handwriting of Rajni to her father, mother, and brother. Therefore, the learned Sessions Judge reasoned that there was no opportunity for these witnesses to verify whether the suicide notes or the admitted handwritings were indeed of Rajani. On this basis, the learned Sessions Judge discarded the suicide notes as also the opinion of the handwriting expert.
41. According to us, the approach of the learned Sessions Judge was not proper. In the first place, assuming that there was any lapse on the part of the investigating officer, the benefit of such lapse cannot be extended to the prosecution. Besides, we find that the learned Sessions Judge did not read the evidence of the investigating officer (PW-17) in paragraph 9, where PW-17 has clearly deposed that since he had some suspicion about the suicide note, he showed the suicide note to the father, mother, and brother of the victim. Therefore, there was no lapse as such on the part of the investigation agency. In any case, lapse if any cannot be a good ground to exclude evidence favorable to the accused or to draw some adverse inference against the accused.
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42. Since this is a case of circumstantial evidence if the prosecution were to prove the motive that would supply a link in the chain of circumstantial evidence. In Anwar Ali .vs. State of H.P. (2020) 10 SCC 166 referred to by the Hon'ble Supreme Court in Shivaji Patil (supra), it is held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favor of the accused. For this, the Hon'ble Supreme Court also relied on Babu .vs. State of Kerala, (2010) 9 SCC 189.
43. In the present case, the prosecution has failed to prove the motive, even if we go by the test of preponderance of probabilities. In the first place, the prosecution tried to urge that the appellant used to harass Rajni and even make demands of dowry. For this purpose, the prosecution was launched under Section 498-A of the Indian Penal Code. The learned Sessions Judge, on evaluating the entire evidence on this aspect, has disbelieved the prosecution witnesses and acquitted the appellant of the offense under Section 498-A of the Indian Penal Code.
44. The father (PW-2), the brother (PW-3), and the sister (PW-4) of Rajni have deposed in this matter, but their testimonies are riddled with contradictions, omissions, and improvements. Rajni's ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 ::: 25 Criminal Appeal No.557.18.odt father PW-2, in terms, admitted that one year before this incident, Rajni tried to pour kerosene on her person and commit suicide. He also admitted that at no stage before the present incident, Rajni lodged any report with the police against the appellant. Rajni's sister PW-4, however, went to the extent of denying that Rajni had ever attempted to commit suicide in the past. She however admitted that Rajni was short-tempered. Rajni's brother PW-3 also admitted that he had no personal knowledge that the appellant used to consume liquor or that he was having an affair with the neighboring lady.
45. Secondly, even the evidence on the alleged affair with the neighboring lady hardly inspires any confidence. PW-2, PW-3, and PW-4 have very vaguely stated that Rajni had informed them about the affair between the appellant and the neighboring lady. The prosecution examined a witness to prove the alleged illicit affair between the appellant and neighboring lady, however, even this witness did not support the prosecution version. Thus, there is neither any evidence of any cruelty nor demands of dowry by the appellant nor any evidence about the affair between the appellant and the neighboring lady that could be regarded as some motive in the crime.
46. In this state of evidence, we do not think it safe to ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 ::: 26 Criminal Appeal No.557.18.odt sustain the conviction under Section 302 of the Indian Penal Code. At the highest, this could be said to be a case that raises some suspicion. However, it is well settled that suspicion can never take place of proof in a criminal trial. Similarly, we think that the learned Sessions Judge, in this case, has failed to appreciate and apply the well-settled principles in criminal jurisprudence that where, on the evidence two possibilities are available or open, one which goes in favor of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of the doubt.
47. In Kali Ram .vs. State of H.P., (1973) 2 SSS 808, the Hon'ble Supreme Court explained that another golden thread which runs through the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. This principle has special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. In Devi Lal .vs. State of Rajasthan, (2019) 19 SCC 447, the Hon'ble Supreme Court observed that in the case of circumstantial evidence, if two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence, the accused is indeed entitled to have the benefit of one which is favorable to him. ::: Uploaded on - 04/12/2021 ::: Downloaded on - 05/12/2021 07:13:17 :::
27 Criminal Appeal No.557.18.odt Therefore, applying such well-settled principles in evaluating the evidence on record, we think that this is a matter where the benefit of reasonable doubt must be extended to the appellant.
48. Therefore, we allow this appeal and set aside the impugned judgment and order, as also the conviction recorded therein.
49. The appellant is directed to be released forthwith unless he is required in connection with any other matter.
50. There shall be no order for costs.
(Pushpa V. Ganediwala, J.) (M.S. Sonak, J.)
Gulande
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