REENA HAZARIKA versus STATE OF ASSAM

[2018] 13 S.C.R.

REENA HAZARIKA

STATE OF ASSAM

(Criminal Appeal No. 1330 of 2018)

OCTOBER 31, 2018

[R. F. NARIMAN AND NAVIN SINHA, JJ.]

Evidence: Circumstantial evidence – Links in the chain ofcircumstances – Determination of – Prosecution case that wife killedher husband on basis of the last seen theory and the unnaturalCconduct of wife – Conviction u/s 302 IPC by the courts below – Onappeal, held: In view of the nature of evidence available coupledwith the manner of its consideration, the links in the chain ofcircumstances in case of circumstantial evidence not establishedto prove that the appellant was the assailant of the deceased –DPossibility that the occurrence may have taken place in some othermanner cannot be completely ruled out – Furthermore, neither trialcourt nor the High Court considered it necessary to take notice ofthe defence by the appellant u/s.313 – Complete non-considerationthereof has clearly caused prejudice to the appellant – Thus, theappellant entitled to acquittal on the benefit of doubt.

Circumstantial evidence – Essentials of – Explained.

Code of Criminal Procedure, 1973: s. 313 – Power to examinethe accused – Scope and significance of – Explained.

Allowing the appeal, the CourtF

HELD: 1. The entirety of the discussion, in the facts andcircumstances of the case, the nature of evidence availablecoupled with the manner of its consideration, leaves the Courtsatisfied that the links in the chain of circumstances in case ofcircumstantial evidence, cannot be said to have been establishedGleading to the inescapable conclusion that the appellant was theassailant of the deceased, incompatible with any possibility ofinnocence of the appellant. The possibility that the occurrencemay have taken place in some other manner cannot be completelyruled out. The appellant is therefore held entitled to acquittal onHthe benefit of doubt. [Para 18][1119-C-D]

2.1 Normally this Court under Article 136 of theConstitution, would be reluctant in appeal to interfere with theconcurrent findings of two courts by re-appreciating the facts andevidence. But in an appropriate case, if this Court finds that therehas been erroneous consideration and appreciation of facts andevidence, leading to miscarriage of justice, this Court is dutybound to ensure that ultimately justice prevails. The principle ofcriminal jurisprudence that several accused may go free, but aninnocent person should not be punished. [Para 7][1113-G-H;1114-A-B]

Anant Chintaman Lagu v. State of Bombay [1960] 2 SCR460 – referred to.

2.2 In case of circumstantial evidence the prosecution isrequired to establish the continuity in the links of the chain ofcircumstances, so as to lead to the only and inescapable conclusionof the accused being the assailant, inconsistent or incompatiblewith the possibility of any other hypothesis compatible with theinnocence of the accused. Mere invocation of the last seen theory,sans the facts and evidence in case, will not suffice to shift theonus upon the accused under Section 106 of the Evidence Act,1872 unless the prosecution first establishes prima facie case.If the links in the chain of circumstances itself are not complete,and the prosecution is unable to establish prima facie case,leaving open the possibility that the occurrence may have takenplace in some other manner, the onus will not shift to the accused,and the benefit of doubt will have to be given. [Para 8][1114-G-H; 1115-A-B]2.3 PW-1 deposed that he was told by the deceased at about11:00 p.m. that he had suffered head injury because of fall,and that the witness did not provide any first aid to the deceasedthough he along with his brother PW 2, did try to call an ambulanceat about 12:00 am. Additionally, that he did not see any otherinjuries on the deceased. On the contrary, CW 1 deposed thatPW 1 had applied Dettol to the wounds of the deceased. Contraryto the statement of PW-1, his brother, PW-2 deposed that he waswoken up at about 2-3 a.m. by the appellant who was crying andtold him that her husband had suffered head injury. The deceasedis then stated to have himself told the witness that the injury was

Anot serious. The contradiction in the evidence of PW-1 and PW-2 is further compounded by the third brother PW-3, deposingthat PW-2 informed him of the injury to the deceased at 12.00am. All the three witnesses have deposed that the deceased wasof heavy built, because of which they were unable to take him tothe hospital on the motor cycle, for treatment. The post mortemBhowever recites that the deceased was of average built. If thedeceased had merely suffered head injury by fall and wasotherwise fit to talk to the witnesses, there is no reason why hecould not have been taken to the hospital on motorcycle. WhilePW-3 states that the deceased was wearing clothes, the post-Cmortem report shows that the deceased was brought in anunderwear only. The clothes of the deceased were found nearthe well in gunny bag. But PW-7 did not consider it necessaryto have the blood group examined by the FSL, which in the factsof the case is major lapse. [Para 10-11][1115-D-H; 1116-A]

D2.4 The post mortem report makes it evident that the chopwounds could not have been caused by the small knife alleged tohave been recovered. Fracture of the temporal bone with theknife was an impossibility. PW-6 in the deposition ruled out thatthe injury could be caused by fall. The post mortem did not findany alcohol in the body of the deceased. The witness also opinedEthat injury no. 4 could have been caused while the deceased mayhave attempted to save himself from assault. The multiple injuriescould certainly not have been caused by one person and tells anentirely different story by itself that the assailants may have beenmore than one. The chop injuries were possible by moderateand heavy weapon like dao. If the deceased was of averageFbuilt, it is difficult to accept, according to normal prudence andhuman behaviour and capacity, that the appellant being woman,could have made such severe and repeated assault on thedeceased, who was her husband, with small knife, without anyresistance and suffered no injury herself. PW-2 acknowledged inGhis evidence that he would have drinks with the deceased.According to the post-mortem report, the stomach of the deceasedwas found empty, suggesting that the assault had taken placeearlier in the evening contrary to the evidence of PWs. 1, 2 and 3suggesting the assault in the late hours of the night by whichtime the deceased would undoubtedly have had his dinner.H[Para 12,15][1116-B-D; 1117-F-G]2.5 Section 313, Cr.P.C. cannot be seen simply as part ofaudi alteram partem. It confers valuable right upon an accusedto establish his innocence and can well be considered beyond astatutory right as constitutional right to fair trial under Article21 of the Constitution, even if it is not to be considered as apiece of substantive evidence, not being on oath under Section313(2) Cr.P.C. If the accused takes defence after theprosecution evidence is closed, under Section 313(1)(b) Cr.P.C.the Court is duty bound under Section 313(4) Cr.P.C. to considerthe same. The mere use of the word ‘may’ cannot be held toconfer discretionary power on the court to consider or not toconsider such defence, since it constitutes valuable right of anaccused for access to justice, and the likelihood of the prejudicethat may be caused thereby. Whether the defence is acceptableor not and whether it is compatible or incompatible with theevidence available is an entirely different matter. If there hasbeen no consideration at all of the defence taken u/s. 313 Cr.P.C.,in the given facts of case, the conviction may well stand vitiated.A solemn duty is cast on the court in dispensation of justice toadequately consider the defence of the accused taken u/s.313and to either accept or reject the same for reasons specified inwriting. Unfortunately neither trial court nor the High Courtconsidered it necessary to take notice of, much less discuss orobserve with regard to the said defence by the appellant u/s.313to either accept or reject it. The defence taken cannot be said tobe irrelevant, illogical or fanciful in the entirety of the facts andthe nature of other evidence available. The complete non-consideration thereof has clearly caused prejudice to the appellant.Unlike the prosecution, the accused is not required to establishthe defence beyond all reasonable doubt. The accused has onlyto raise doubts on preponderance of probability. [Para 16, 17]

[1117-G-H; 1118-A-E]

Hate Singh Bhagat Singh v. State of Madhya BharatAIR 1953 SC 468; M. Abbas vs. State of Kerala (2001)10 SCC 103 – referred to.

Case Law Reference

CDE

A(2001) 10 SCC 103referred toPara 17

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1330 of 2018

From the Judgment and Order dated 09.02.2017 of the High Courtof Gauhati at Gauhati in Crl. Appeal (J) No. 130 of 2014.

Shri Singh, Ms. Sayali Kadu, Ms. Varsha Poddar, Ms. SupriyaJuneja, Advs. for the Appellant.

Ms. Diksha Rai, Ms. Palak Mahajan, Advs. for the Respondent.

The Judgment of the Court was delivered by

NAVIN SINHA, J. 1. Leave granted.

2. The appellant is the wife of the deceased convicted under Section302 I.P.C. and sentenced to life imprisonment with fine of Rs.1,000/-and in default, imprisonment for one month.

D3. The deceased resided along with the appellant and his minordaughter CW-1, Miss Puja Hazarika, aged about 9 years, in the tenantedpremises belonging to PW-1 Manoj Kumar Deka, PW-2 Dipen Dekaand PW-3 Bhrigumoni Deka, who are brothers. The appellant is statedto have assaulted the deceased in the intervening night of 10.05.2013/11.05.2013. PWs. 1, 2 and 3 are stated to have heard noises and onEgoing there, found the deceased with head injury attributed to fall, butthat the deceased was otherwise alright. They were unable to take himto the hospital because of rains and the unavailability of an ambulance.According to the post-mortem report proved by PW-6, Dr. Ritu RajChaliha the deceased had the following injuries on his person :-F

(i) Chop wound of size 11 cm x 2 cm x muscle deep present onleft side of cheek 6 cm medial tragus and 1 cm above angleof mandible.

(ii) Chop wound of size 9 cm x 2 cm x muscle deep presentback of occipital region.

(iii) Chop wound of size 4 cm x 2 cm x muscle deep present onleft side of forearm.

(iv) Laceration of size (5 x 4) cm present over left wrist joint onposterior aspect.

(v) Chop wound of size (4 x 1) cm x muscle deep, present overtemporal region on right side.

(vi) Chop wound of size (6 x 2) cm of muscle deep present overback of scapula.

(vii) Fracture of temporal bone on both sides.

All injuries were ante mortem and caused by moderately heavysharp cutting weapon and homicidal in nature.

4. The Trial Court and the High Court held that the present was acase of circumstantial evidence. The last seen theory establishes thepresence of the appellant with the deceased at night. Her unnaturalconduct because she was not crying, she was the assailant of thedeceased.

5. Mr. Singh, learned counsel for the appellant submitted that thecourts below have erred in holding that the links in the chain ofcircumstances stood established leading to the only inescapable conclusionof the appellant being the assailant and no other hypothesis of innocencebeing possible. PW-6 has deposed that the injuries were caused by amoderately heavy sharp cutting weapon such as dao, and that thefracture of the temporal bone may have been caused by moderateheavy weapon. The recovery from the place of occurrence, as provedby PW-7 S.I. Nilomani Malakar, is of an ordinary knife used for cuttingbetel nut, one feet long with bent sharp point. Chop injuries were notpossible with the same. The alleged knife was not even shown to PW-6for eliciting opinion if the injuries could have been caused by the same.

6. Miss Diksha Rai, learned counsel for the State submitted thatthe appellant was last seen with the deceased in the room, confirmed byCW-1. The appellant has failed to offer any explanation of thecircumstances as to how the death occurred at night. Her unnaturalconduct in not even weeping was also noticed by PW-7. The knife usedfor assault, and blood soaked clothes of the deceased have also beenrecovered.

7. We have considered the respective submissions, the orders ofthe courts below, as also the evidence available on record. Normallythis court under Article 136 of the Constitution, would be reluctant inappeal to interfere with the concurrent findings of two courts byreappreciating the facts and evidence. But in an appropriate case, if this

Acourt finds that there has been erroneous consideration and appreciationof facts and evidence, leading to miscarriage of justice, this court is dutybound to ensure that ultimately justice prevails. It is well establishedprinciple of criminal jurisprudence that several accused may go free, butan innocent person should not be punished. In Anant Chintaman Laguv. State of Bombay, (1960) 2 SCR 460 this court observed as follows :-B

“16. Ordinarily, it is not the practice of this Court to re-examinethe findings of fact reached by the High Court particularly in acase where there is concurrence of opinion between the twoCourts below. But the case against the appellant is entirely basedon circumstantial evidence, and there is no direct evidence thathe administered poison, and no poison has, in fact been detectedby the doctor, who performed the post-mortem examination, orby the Chemical Analyser. The inference of guilt having beendrawn on an examination of mass of evidence during whichsubsidiary findings were given by the two Courts below, we havefelt it necessary, in view of the extraordinary nature of this case,

to satisfy ourselves whether each conclusion on the separateaspects of the case, is supported by evidence and is just and proper.Ordinarily, this Court is not required to enter into an elaborateexamination of the evidence, but we have departed from this rulein this particular case, in view of the variety of arguments thatEwere addressed to us and the evidence of conduct which theappellant has sought to explain away on hypotheses suggestinginnocence. These arguments, as we have stated in brief, coveredboth the factual as well as the medical aspects of the case, andhave necessitated close examination of the evidence once again,Fso that we may be in position to say what are the facts found, onwhich our decision is rested.”

8. The essentials of circumstantial evidence stand well establishedby precedents and we do not consider it necessary to reiterate the sameand burden the order unnecessarily. Suffice it to observe that in caseGof circumstantial evidence the prosecution is required to establish thecontinuity in the links of the chain of circumstances, so as to lead to theonly and inescapable conclusion of the accused being the assailant,inconsistent or incompatible with the possibility of any other hypothesiscompatible with the innocence of the accused. Mere invocation of thelast seen theory, sans the facts and evidence in case, will not suffice to

shift the onus upon the accused under Section 106 of the EvidenceAct,1872 unless the prosecution first establishes prima facie case. Ifthe links in the chain of circumstances itself are not complete, and theprosecution is unable to establish prima facie case, leaving open thepossibility that the occurrence may have taken place in some othermanner, the onus will not shift to the accused, and the benefit of doubtwill have to be given.

9. Before proceeding with the discussion further, we deem it properto notice that the appellant did not have the benefit of lawyer of herchoice, both before the trial court and the High Court, naturally becauseof some handicap. She had to be provided legal assistance by the LegalServices Authority. This is not to make any comment or observation onthe nature of the defence made available to the appellant, but only tonotice her handicap in establishing her innocence.

10. PW-1 deposed that he was told by the deceased at about11:00 p.m. on 10.05.2013 that he had suffered head injury because ofa fall, and that the witness did not provide any first aid to the deceasedthough he along with his brother PW-2, did try to call an ambulance atabout 12:00 am. Additionally, that he did not see any other injuries on thedeceased. On the contrary, CW-1 deposed that PW-1 had applied Dettolto the wounds of the deceased.

11. Contrary to the statement of PW-1, his brother, PW-2 deposedthat he was woken up at about 2-3 a.m. by the appellant who was cryingand told him that her husband had suffered head injury. The deceased isthen stated to have himself told the witness that the injury was not serious.The contradiction in the evidence of PW-1 and PW-2 is furthercompounded by the third brother PW-3, deposing that PW-2 informedhim of the injury to the deceased at 12.00 am. All the three witnesseshave deposed that the deceased was of heavy built, because of whichthey were unable to take him to the hospital on the motor-cycle, fortreatment. The post mortem however recites that the deceased was ofaverage built. If the deceased had merely suffered head injury by falland was otherwise fit to talk to the witnesses, we see no reason why hecould not have been taken to the hospital on motorcycle. While PW-3 states that the deceased was wearing clothes, the post-mortem reportshows that the deceased was brought in an underwear only. The clothesof the deceased were found near the well in gunny bag. But PW-7 did

Anot consider it necessary to have the blood group examined by the FSL,which in our opinion in the facts of the case is major lapse.

12. The post-mortem report makes it evident that the chop woundscould not have been caused by the small knife alleged to have beenrecovered. Fracture of the temporal bone with the knife was anBimpossibility. PW-6 in the deposition ruled out that the injury could becaused by fall. The post mortem did not find any alcohol in the body ofthe deceased. The witness also opined that injury no. 4 could have beencaused while the deceased may have attempted to save himself fromassault. The multiple injuries could certainly not have been caused byone person and tells an entirely different story by itself that the assailantsCmay have been more than one. The chop injuries were possible by amoderate and heavy weapon like dao. In our opinion also, if thedeceased was of average built, it is difficult to accept, according to normalprudence and human behaviour and capacity, that the appellant being awoman, could have made such severe and repeated assault on theDdeceased, who was her husband, with small knife, without any resistanceand suffered no injury herself.

13. PW-7 claimed to have found knife with the smell of Dettol.Even if the knife had been wiped to erase traces of blood the woodenhandle could have revealed much if it had been sent to the FSL. TheEwitness again offers no explanation why he did not do so. No bottle ofDettol has been recovered. There is absolutely no evidence that thedeceased would often assault the appellant and the minor child in adrunken condition. The fact that PW-7 did not notice tears in the eyesof the appellant, deemed as unnatural conduct by the courts below, cannotbe sufficient to draw an adverse inference of guilt against the appellant.FThe appellant being in helpless situation may have been stunned into ashock of disbelief by the death of her husband. It is not uncommonhuman behaviour that on the death of near relative, or upon witnessinga murderous assault, person goes into complete silence and stuporshowing no reaction or sensibility. We also find it difficult to believe andGrely upon the evidence of CW-1 primarily because of her minority. If thedeceased had been assaulted by the appellant in the room at night, itwould certainly have led to noise and shouts and the witness could nothave possibly slept throughout without waking up.

14. PW-1 deposed that he informed the police the next morning atHabout 8:00 a.m. But PW-7 has deposed that information was given at

the police station by PW-1 at about 12:00 p.m. on 11.05.2013 and theGeneral Diary entry no. 452 made in the police station at 12.20 p.m., andthe F.I.R. registered at 7:45 p.m. These are suspicious circumstanceswhich leaves enough time for planning after thinking for the manner inwhich allegations were to be made for deflecting that the occurrencetook place in manner other than what may have happened actually.

15. In the background of the aforesaid discussion regarding thenature of evidence and the manner of its appreciation, we deem it properto set out the English translation in the paper book of defence taken bythe appellant under Section 313 Cr.P.C. as follows:-

“Ans: On the date of occurrence at about 8-8:30 while I havereturned from my work at Satgaon, I saw that my husband waslying in the room with bleeding injury. On my cry, Manoj Dekaand his brothers come there with drink in the hand of one brother.Thereafter I saw Manoj Deka was putting Dettol on the woundof my husband. I also rang to 108 ambulance. When, I wanted tocall police Manoj Deka, snatched the phone from me. On mycrying neighbouring peoples arrived there. I tried to take myhusband to medical but due to non-co-operation my Manoj Dekaand others, I failed to take him to Medical. On that night at about9.30 expired and Manoj Deka and other neighbours were sitting.Subsequently Manoj Deka has falsely implicated me. I have thesuspicion that my husband was physically assaulted earlier at someplace by Mintu Nath, Dipak Das and Jeetu Deka while takingliquor and brought by husband on injured condition and laid in theroom. I also saw the lock of my room in broken condition, whenI arrived here. I have not killed my husband. I am innocent.”

PW-2 has acknowledged in his evidence that he would have drinks withthe deceased. According to the post-mortem report, the stomach of thedeceased was found empty, suggesting that the assault had taken placeearlier in the evening contrary to the evidence of PWs. 1, 2 and 3suggesting the assault in the late hours of the night by which time thedeceased would undoubtedly have had his dinner.

16. Section 313, Cr.P.C. cannot be seen simply as part of audialteram partem. It confers valuable right upon an accused to establishhis innocence and can well be considered beyond statutory right as aconstitutional right to fair trial under Article 21 of the Constitution,even if it is not to be considered as piece of substantive evidence, not

Abeing on oath under Section 313(2), Cr.P.C. The importance of this righthas been considered time and again by this court, but it yet remains to beapplied in practice as we shall see presently in the discussion to follow.If the accused takes defence after the prosecution evidence is closed,under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section313(4) Cr.P.C. to consider the same. The mere use of the word ‘may’Bcannot be held to confer discretionary power on the court to consideror not to consider such defence, since it constitutes valuable right of anaccused for access to justice, and the likelihood of the prejudice thatmay be caused thereby. Whether the defence is acceptable or not andwhether it is compatible or incompatible with the evidence available isCan entirely different matter. If there has been no consideration at all ofthe defence taken under Section 313 Cr.P.C., in the given facts of acase, the conviction may well stand vitiated. To our mind, solemn dutyis cast on the court in dispensation of justice to adequately consider thedefence of the accused taken under Section 313 Cr.P.C. and to eitheraccept or reject the same for reasons specified in writing.D

17. Unfortunately neither Trial Court nor the High Court consideredit necessary to take notice of, much less discuss or observe with regardto the aforesaid defence by the appellant under Section 313 Cr.P.C. toeither accept or reject it. The defence taken cannot be said to beirrelevant, illogical or fanciful in the entirety of the facts and the natureEof other evidence available as discussed hereinbefore. The completenon-consideration thereof has clearly caused prejudice to the appellant.Unlike the prosecution, the accused is not required to establish the defencebeyond all reasonable doubt. The accused has only to raise doubts on apreponderance of probability as observed in Hate Singh Bhagat SinghFvs. State of Madhya Bharat, AIR 1953 SC 468 observing as follows :-“26. We have examined the evidence at length in this case, notbecause it is our desire to depart from our usual practice ofdeclining to the assess, the evidence in an appeal here, but becausethere has been in this case departure from the rule that when anGaccused person but for the word reasonable defence which islikely to be true,…… then the burden on the other side becomesall the heavier because reasonable and probable story likely tobe true friend pitted against AV and vacillating case is bound toraise reasonable doubts of which the accused must get thebenefit….”

similar view is expressed in M. Abbas vs. State of Kerala, (2001) 10SCC 103 as follows :-

“10….On the other hand, the explanation given by the appellantboth during the cross-examination of prosecution witnesses andin his own statement recorded under Section 313 CrPC is quiteplausible. Where an accused sets up defence or offers anexplanation, it is well settled that he is not required to prove hisdefence beyond reasonable doubt but only by preponderance ofprobabilities….”

18. The entirety of the discussion, in the facts and circumstancesof the case, the nature of evidence available coupled with the manner ofits consideration, leaves us satisfied that the links in the chain ofcircumstances in case of circumstantial evidence, cannot be said tohave been established leading to the inescapable conclusion that theappellant was the assailant of the deceased, incompatible with anypossibility of innocence of the appellant. The possibility that theoccurrence may have taken place in some other manner cannot becompletely ruled out. The appellant is therefore held entitled to acquittalon the benefit of doubt. We accordingly order the acquittal and releaseof the appellant from custody forthwith, unless wanted in any other case.

19. The appeal is allowed.

Nidhi Jain

Appeal allowed.