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Circumstantial Evidence – 5 principles -“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency,(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.= State of Himachal Pradesh … Appellant Vs. Raj Kumar. … Respondent= 2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41428

Circumstantial Evidence – 5 principles –“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (2) the facts so established should be consistent only with  the hypothesis of the guilt of the accused, that is to  say,  they  should not be explainable on any other hypothesis except that the accused  is guilty, (3) the circumstances should  be  of  a  conclusive  nature  and tendency,(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence  so  complete  as  not  to leave any reasonable ground for the  conclusion  consistent  with  the innocence of the accused and must show that in all  human  probability the act must have been done by the accused.=

Admittedly,  the  prosecution  case  is  based   on   circumstantial

evidence.  The circumstances were enumerated by the trial court as under:

 

        1) that the relationship between the deceased and the  accused  was

           not cordial due to the dispute on account of the  possession  of

           the room;

 

 

        2) that on the evening of 30.9.1998, there was  a  scuffle  between

           the accused and the deceased;

 

        3) that the accused had made an extra judicial  confession  of  his

           guilt on the morning of 1.10.1998 in presence of Balbir Singh;

 

        4) that the accused got recovered the blood stained Darat from  his

           possession under Section 27 of the Indian Evidence Act;

 

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

           and shirt to the police;

 

        6) that the accused was seen with the Darat coming out of the  room

           of the deceased in the early morning of 1.10.1998 by his brother

           Naresh Kumar an Smt. Neelam Kumari;

 

        7) that the blood group of the Darat, Chadar  and  Pyazama  of  the

           accused was opined to be the same i.e. group B by  the  chemical

           analyst; and

 

        8) that the shirt of the accused the khessi and pillow cover of the

           deceased had the blood stains of human being.”

 

6.    The trial court held that the circumstances Nos.3, 4 and  6  were  not

proved.  Thus, the extra-judicial confession of the respondent, the  alleged

recovery of blood stained Darat from the  respondent’s  possession  and  the

claim of PW-4 Naresh Kumar and PW-9 Smt. Neelam Kumari that  the  respondent

was seen by them coming out of the room of the deceased with a Darat in  the

early morning of 1.10.1998 are held to be not proved.Circumstances Nos.3, 4 and 6 having been held not  proved,  the  trial court erred in convicting the respondent  on  the  basis  of  the  remaining

circumstances.  The strained relationship between  the  respondent  and  the

deceased, the scuffle  that  had  allegedly  taken  place  between  them  on

30/9/1998; the alleged handing over of pyazama and shirt to  the  police  by

the respondent; same group of blood found on Darat (the  recovery  of  which

is not proved), on the Chadar found on the cot on  which  the  deceased  was

lying and on pyazama of the respondent and human blood found on  the  khessi

and pillow cover of the deceased were not, in our opinion in  the  facts  of

this case, sufficient to convict the respondent.=

the  High  Court  set  aside  the

order of conviction and  acquitted  the  accused.  Being  aggrieved  by  the

acquittal of the accused, the State of Himachal has approached this Court.=

 

In Sharad Birdhichand Sarda  v.  State of Maharashtra[1],  this  Court

laid down the five principles as regards  the  proof  of  a  case  based  on

circumstantial evidence.  This Court has reiterated  those  principles  time

and again.  They are:

            “(1) the circumstances from which the conclusion of guilt is to

      be drawn should be fully established.

 

 

                         xxx         xxx        xxx

 

 

           (2) the facts so established should be consistent only with  the

      hypothesis of the guilt of the accused, that is to  say,  they  should

      not be explainable on any other hypothesis except that the accused  is

      guilty,

 

 

           (3) the circumstances should  be  of  a  conclusive  nature  and

      tendency,

 

 

           (4) they should exclude every possible hypothesis except the one

      to be proved, and

 

 

           (5) there must be a chain of evidence  so  complete  as  not  to

      leave any reasonable ground for the  conclusion  consistent  with  the

      innocence of the accused and must show that in all  human  probability

      the act must have been done by the accused.

 

 

           154. These five golden principles, if we may say so,  constitute

      the panchsheel  of  the  proof  of  a  case  based  on  circumstantial

      evidence.”

 

 

10.   In our opinion, in this case, for the reasons which  we  have  already

noted, the chain of circumstances is not so complete as  not  to  leave  any

reasonable ground for the conclusion consistent with the  innocence  of  the

respondent.  It is not possible to say that in  all  human  probability  the

respondent was the culprit.  The High  Court  has,  therefore,  rightly  set

aside the conviction and sentence and acquitted  the  respondent.   Besides,

while dealing with an appeal against order  of  acquittal,  we  have  to  be

cautious.   Unless  the  order  of  acquittal  is  perverse,  it  cannot  be

overturned.  We find the impugned judgment to be well reasoned  and  legally

sound.  It is  not  perverse.   The  appeal  is,  therefore,  liable  to  be

dismissed and is dismissed.  

2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41428

RANJANA PRAKASH DESAI, MADAN B. LOKUR

 

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.413 OF 2005
State of Himachal Pradesh … Appellant

Vs.

Raj Kumar. … Respondent

O R D E R

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

2. The respondent is the sole accused. He was tried by the Additional
Sessions Judge, Una, (Himachal Pradesh) for offence punishable under
Section 302 of the Indian Penal Code (“the IPC”). The Sessions Court
convicted the respondent under Section 302 of the IPC and sentenced him to
suffer life imprisonment and to pay a fine of Rs.3,000/-. In default of
payment of fine, he was ordered to suffer simple imprisonment for further
period of three months. The respondent preferred an appeal to the High
Court. By the impugned judgment and order, the High Court set aside the
order of conviction and acquitted the accused. Being aggrieved by the
acquittal of the accused, the State of Himachal has approached this Court.
3. According to the prosecution, on 1/10/1998 at about 7.15 a.m., PW-7
Balbir Singh, Ward Panch and Nambardar of Halqua Bhadorkali, went to the
Police Post Daulatpur and lodged daily diary report (Ex-PA) stating that at
about 7.00 a.m, PW-6 Dev Raj of the same village came to his house and
informed him that one Ashwani Kumar @ Pinku (“the deceased”) had been
killed. They went to the house of Ashwani Kumar. They found the deceased
lying in a pool of blood on a cot with various cut injuries on his head.
PW-9 immediately rushed to the Police Post on his Scooter to lodge the
report. The respondent, who is the brother of the deceased also reached
the Police Post and disclosed to PW-7 Balbir Singh that he had murdered his
brother with a ‘Darat’. On the basis of daily diary report (Ex-PA), First
Information Report (Ex-PW-11/A) was recorded by PW-11 HC Yog Raj, at the
Police Station Gagret. Investigation was set in motion. After completion
of investigation, the respondent came to be charged as aforesaid.

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

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

1) that the relationship between the deceased and the accused was
not cordial due to the dispute on account of the possession of
the room;
2) that on the evening of 30.9.1998, there was a scuffle between
the accused and the deceased;

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

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

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

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

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

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

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

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

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

9. In Sharad Birdhichand Sarda v. State of Maharashtra[1], this Court
laid down the five principles as regards the proof of a case based on
circumstantial evidence. This Court has reiterated those principles time
and again. They are:
“(1) the circumstances from which the conclusion of guilt is to
be drawn should be fully established.
xxx xxx xxx
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the accused is
guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the one
to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human probability
the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial
evidence.”
10. In our opinion, in this case, for the reasons which we have already
noted, the chain of circumstances is not so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of the
respondent. It is not possible to say that in all human probability the
respondent was the culprit. The High Court has, therefore, rightly set
aside the conviction and sentence and acquitted the respondent. Besides,
while dealing with an appeal against order of acquittal, we have to be
cautious. Unless the order of acquittal is perverse, it cannot be
overturned. We find the impugned judgment to be well reasoned and legally
sound. It is not perverse. The appeal is, therefore, liable to be
dismissed and is dismissed.
…………………………………..J.
(RANJANA PRAKASH DESAI)

 

……………………………………J.
(MADAN B. LOKUR)

NEW DELHI;
APRIL 17, 2014.

 

 

 

———————–
[1] (1984) 4 SCC 116

———————–
8

 

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