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Bhupender Singh vs State Of Delhi on 13 July, 2018

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 294/2017
BHUPENDER SINGH ….. Appellant
Through Mr.R.M.Tufail, Ms. Astha,Mr.Farooq
Chaudhary and Mr. S.S.Tomar,
Advocates
versus

STATE OF DELHI ….. Respondent
Through Mr. Hirein Sharma, APP for State

CORAM: JUSTICE S. MURALIDHAR
JUSTICE VINOD GOEL

JUDGMENT

13.07.2018
Dr. S. Muralidhar, J.:

1. This appeal is directed against the judgment dated 23 rd December, 2016
passed by the learned Additional Sessions Judge-III, North District, Rohini
Courts in Sessions Case No. 58267/2016 arising out of FIR No. 270/2005
registered at Police Station („PS‟) Narela convicting the Appellant for the
offence under Section 302 IPC and the order on sentence dated 26th
December, 2016 whereby he was sentenced to imprisonment for life with a
fine of Rs.50,000/-, and in default of payment to undergo simple
imprisonment for six months for the said offence.

2. At the outset it requires to be noticed that the charge framed against the
Appellant and six other co-accused was that in furtherance of their common
intention they had subjected the deceased Smt. Shashi, wife of the

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Appellant, to cruelty thereby committing an offence punishable under
Section 498A read with Section 34 IPC; that having subjected her to cruelty
in connection with demand of dowry within seven years of marriage they
had caused her death otherwise than under normal circumstances and hence
committed an offence under Section 304 B read with Section 34 IPC; that
they had converted the dowry articles of the deceased for their own use and
thereby committed an offence punishable under Section 408 IPC read with
Section 34 IPC; that they had disturbed the scene of crime to give an
impression of suicidal death and thereby committed an offence under
Section 201 read with 34 IPC and lastly in the alternative in furtherance of
their common intention had committed the murder of the deceased and
thereby committed an offence punishable under Section 302 read with 34
IPC.

3. In the impugned judgment, the trial Court has concluded that the evidence
led by the prosecution did not prove the offences under Sections 498-A IPC,
Section 304 B IPC, Section 408/34 IPC and Section 201 read with Section
34 IPC. However, the trial Court has accepted the alternative charge against
the Appellant alone and convicted him for the offence punishable under
Section 302 IPC.

Deposition of DW-1

4. The Appellant was a constable of the Delhi Police. He got married to the
deceased on 24th May, 2002. A son was born to them on 24 th May, 2003 as
spoken to by Dr. Nikita Jain (PW-7).

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5. Vijay (DW-1), the younger brother of the Appellant, at the relevant time,
was staying with the Appellant, the deceased and their child in the official
quarters allotted to the Appellant in Narela. He was at that time studying in
the 9th standard. According to DW-1, on 28th April, 2005 he returned from
his school at around 4 pm. He went out for play and returned home at
around 6 pm. He noticed the Appellant and the deceased were having a
discussion about his tuitions. The Appellant was insisting that DW-1 should
go for tuitions but the deceased stated that they would send him for tuitions
only after some money which was loaned to her parents was returned. DW-1
states that on 28th April, 2005 the Appellant left for his duty at around 6pm.

Deposition of PW-8

6. It appears that the Appellant was at duty till the morning of 29th April,
2005. Head Constable Satyawan (PW-8) who is also working in the Delhi
Police in his deposition stated that he too was residing in the Police Colony
at Narela and was returning from duty on the morning of 29th April, 2005
and when he got down from bus No.131 near the police colony, Narela, the
Appellant had just alighted from the bus which had reached prior to the bus
taken by PW-8. While the Appellant turned right, PW-8 proceeded straight
from there and reached his quarters in about 4-5 minutes. He was informed
by a neighbour that a woman had died in the police colony. Then PW-8
along with his neighbour reached quarter No. 427 i.e. the quarters where the
Appellant resided and they found a crowd there. The people there informed
PW-8 that a lady had committed suicide by hanging, that the quarter
belonged to the Appellant and that the deceased was his wife.

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7. In his cross-examination PW-8 maintained that the Appellant had alighted
from the bus at around 8 am. When he went to the house No. 427 he found
the Appellant present there in police uniform.

Deposition of PW-1

8. There are two neighbours of the Appellant, who were examined by the
prosecution. Urmila (PW-1) stated that on the morning of 29 th April, 2005 at
around 7.30 am she saw the deceased cleaning her house. She then stated as
under:

“At about 8a.m. I was standing on the door of my house and I
saw accused Bhupinder vigorously knocking the door. The
accused Bhupinder opened the door and went upstairs and
started crying. Hearing his cries I alongwith some neighbours
went on the first floor of the house of the accused and saw
Shashi hanging from the fan with two chunnies. The accused
was trying to bring down Shashi but I asked him not to do so.
In the meanwhile somebody informed the police.”

Deposition of PW-14

9. There was no cross-examination of PW-1 by the counsel for the defence.
The other neighbour who was examined was Archana (PW-14), who
corroborated PW-1 by stating that on 29th April, 2005 at around 7.15 am
when her husband had left for work and she was watering the plants, she
noticed that the deceased was also watering plants. She noticed DW-1 i.e.
Vijay leaving from there. At around 8 am she (PW-14) went inside her
quarters. She then stated as under:

“After some time accused Bhupender who was in uniform
knocked my door and asked for wooden ladder from me and I

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asked him to take the ladder which was kept in the staircase.
When I enquired what was the purpose he said that Shashi was
not opening the door so he wanted to see her from balcony..
But as the door was closed he came down and went towards
back side. After some time I heard weeping noise. I noticed
some neighbours in the: house of Bhupender and after some
time 1came to know that Shashi had died. I was shocked as to
how a happy family has been ruined.”

Deposition of PW-33

10. This is another witness who was not cross-examined and, therefore, the
above testimony remained unchallenged. Then we have the deposition of
Constable Rajbir (PW-33), who states that on 29th April, 2005 at around 8.15
am, he heard some noise in the locality that „the wife of accused Bhupender
was hanging in the quarter of accused‟. He further stated as under:

“I went to quarter no.427 where at the first floor of the said
quarter, Shashi wife of Bhupinder was hanging with ceiling
and her lower part was lying on the bed. I made a telephone
call to the police at 100 No. at about 8.30 PM from telephone
no.27783260. The accused Bhupinder was working in Delhi
police in the Security Unit.”

11. A reading of all of the above depositions shows that the accused went for
his duty on the evening of 28th April, 2005 and returned at around 8 am on
the morning of 29th April, 2005. The deceased was seen alive last at around
7.30 am watering the plants. The death of the deceased therefore should
have happened somewhere between 7.30 am and 8 am on the morning of
29th April, 2005. It must be noticed at this stage that it was PW-33, who
gave information first to the police about finding the deceased hanging
inside the house. The PCR form (Ex.PW-22/A) shows that the time when

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this information was given was at around 8.30 am.

Suicide or homicide?

12. Whether it was a case of suicidal or homicidal death was the question
that engaged the investigation. It must be noted that there is a report of the
Sub-Judicial Magistrate (Ex.PW-21/C) in which it is noticed inter-alia that
the deceased had been living with her Mausi and Mausa (maternal aunt and
uncle respectively) since she was 7-8 months old till the time of her
marriage. The statements of her parents and her Mausi and Mausa were
recorded on 29th April, 2005 „but no allegation of harassment on account of
dowry or any other ill treatment towards the deceased has been levelled by
them.‟ However, the SJM noted as under:

“The facts emanating from the inspection of the placement of
body of the deceased while hanging from the ceiling fan and
the presence of broken pieces of her bangles on the bed as well
as on the floor do not rule out foul play in this incident. The
broken pieces of bangles have been taken into custody by the
police.”

13. Therefore what led investigators to the angle of homicide in the present
case was the broken pieces of bangles which were found on the bed as well
as on the floor. They had dried blood stains. As it transpired, the FSL report
did not indicate whether these dried blood stains in fact belonged to the
deceased or the accused or anyone else.

14. Adding to the doubt on whether this was a homicide or suicide was the
initial medical opinion given by Dr. Anil Shandil (PW-4). According to the
prosecution, he was one of the three doctors (the other two being Dr. L.C.

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Gupta and Dr. Upender Kishore who conducted the post-mortem of the
deceased. This post-mortem took place on 30th April, 2005. The external
examination revealed that the eyes were partially opened. The conjunctivae
was congested, the cornea was dry and hazy and the mouth was partially
opened. The nails were bluish. The following external injuries were noted:-

“External injuries-

(i)multiple crescentic shaped abrasion over doresum of left
hand, proximal wrist, proximal index finger and right
dorsum of hand, ulnar boarder of right hand with died up
fresh blood.

(ii)Abrasion 2 cm X 1.5 cm with bruise situated just below
left side chin. On incision underneath tissue contused with
effusion of reddish blood.

(iii)Irregular ligature mark extending from left side of chin
to nap of neck and then right side with bare area over left
side mastoid to chin. On incision underneath tissue
bloodless, appearance of ligature mark dry parchmentised
and no line of demarcation in form of congestion present.”

15. As far as the internal examination was concerned, it revealed as under:-

“(i) Head- Dilated and engorged vessels, brain matter
congested, edematous with petechials and punctate
haemorrhages in bilateral cerebral matter.

(ii) Neck- As already mentioned.

(iii) Chest- bilateral lungs congested, edematous. All
chambers of heart full of dark fluidy blood. All coronaries
patent, musculature and valves NAD.

(iv) Abdomen- Stomach contains only rusty colour
fluid/secretions about 20 to 30 ml. Mucosa congested,

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reddened all over with petechials. Unrecongizable smell + .
All abdominal visceras congested.”

16. Final opinion on the cause of death was reserved to be given after the
blood and viscera chemical analysis report was received from the CFSL.
The initial opinion read as under:

“(iii) Postmortem findings are consistent with postmortem
hanging and ante mortem struggle/assault.

(iv) Mode of death homicide where possibility of creation of
scene suggestive of suicidal scene exists.”

17. After the viscera report was received on 27 th November, 2009 the final
opinion was recorded as under:

“(i)The chemical analysis report of viscera and the original PM
report submitted to the medical board by police 10 Inspector
Jag Ram along with order of Hon’ble Court. In pursuance and
in furtherance to compliance of the order dated 17.11.09 of this
Hon’ble Court a written request was made to Dr. Upender
Kishore and Dr. Anil Shandil.

(ii) Dr. Upender Kishore was not available before the schedule
medical board on that day hence we other two members of the
board Dr. LC.Gupta and myself assembled for the needful
purpose as ordered by the Hon’ble Court in Subzi Mandi
Mortuary.

(iii)The facts available in postmortem report and dbove said
viscera report were considered. The chemical analysis report of
viscera report no.FSL-2005/C-2297 gave positive test for the
presence of aluminium phosphide (although there was/were no
sign of consumption of aluminium phosphide in the dead body
of deceased which may revealed during postmortem
examination) and which cannot be given by other party to an
adult person and the poison is suicidal in nature, until proven

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otherwise. Therefore the opinion concluded in reference to
interim opinion expressed on page ante-we are now of the
opinion that the cause of death in this case was asphyxia
consequent to ante mortem ligature hanging after consuming
the aluminium phosphide poison by the deceased. Hence the
possibility of suicide cannot be ruled out.”

Deposition of PW-4

18. Dr. Anil Shandil (PW-4) was asked specific questions by the Court on
the failure to mention the fact that the post-mortem had been conducted by a
team of three doctors. The only answer given was that even though it is
normal practice that the order of the Government constituting the medical
board is mentioned in the post mortem report, in this case, it was not so
mentioned and PW-4 could not say whether there was any such government
order in the present case. He volunteered that both he and Dr. L.C.Gupta had
visited the spot of occurrence after the post mortem examination but before
giving opinion on the post-mortem report. He also mentions that this fact
was conveyed to Dr. Upender Kishore (PW-5), „but he was not available‟.
They did not find any digested or undigested food in the stomach. They only
found „20-30 ml rusty colour fluid‟.

19. PW-4 was then asked about the previous opinion where it was
suggestive of homicidal death. PW-4 clarified as under:

“The previous opinion on Ex.PW.4/A was an interim opinion
based on brief facts and inquest papers, postmortem examination,
visit to the scene of spot and for the awaiting the report of blood
and viscera. Now after receiving the blood and viscera chemical
analysis report testing positive for aluminium phosphide poison,
which cannot be given by other party to an adult person, the basic
nature and characteristic of poison aluminium phosphide poison

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suicidal in nature and postmortem report the final opinion has
been concluded upon.

Q. What is the basis of your opining that the poison aluminium
phosphide can only be consumed by a, patient himself and it
cannot be administered by anyone else?

A. I say so because the smell of aluminium phosphide poison is
such a sharp smell that it cannot be given to an adult person.

20. In his cross-examination by counsel for the accused, PW-4 clarified that
there was only a single ligature mark on the neck of the deceased. He
mentioned further as under:

“The unrecognizable smell observed while postmortem
examination, the ante mortem inflicted injuries present over
both hands and absence of typical ligature mark of hanging
are the cause of our giving such interim report.”

Deposition of PW-5

21. Dr. Upender Kishore (PW-5) was not very helpful either to the
prosecution or the defence. Primarily it appeared that he simply signed the
post-mortem report without even visiting the scene of the crime. Although
according to him he did not agree with the findings, he did not give a
dissenting note since at that point of time the post-mortem report was not
final.

22. According to PW-5, his findings in the post-mortem report „are
consistent with ante mortem hanging.‟ He also added „it is correct that
„aluminium phosphide is a suicidal poison and not homicidal.‟

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Trial Court’s conclusions

23. At this stage, it is necessary to focus on how the trial Court has
approached the whole issue. After concluding that the evidence in the case
was insufficient to return a finding of crime against the accused for the
offences under Section 498-A and 304 B, the trial Court commenced the
discussion of the evidence qua the offence punishable under Section 302
IPC by first noticing that the door was not broken and even „the bolt of the
door was not found broken‟, meaning thereby that it was not bolted from
inside. Although one witness (PW-14) had stated that the Appellant had
asked her for a ladder as he had stated that the deceased was not opening the
door and he wanted to ascend onto the balcony of their house but that ladder
was not found and there was nothing on record that the Appellant had
entered the flat from any other place other than the main door. All of this
according to the trial Court showed that there was no forced entry in the flat.

24. The trial Court then analysed the photographs which showed that the
deceased was lying on the bed with her back and elbow, resting on the bed
and the chunni i.e. ligature was not tied around. It was noticed that “her neck
was resting in chunni. Her feet were hanging around the bed.” It was also
noticed that two chunnis have been used. One tied to the fan and the other
one passing through the first chunni and her neck was resting with face
towards roof in the second chunni and the noose was not tied. The post
mortem report at that time declared there was no congestion of the neck
tissue.

25. The trial Court selectively quoted from the opinion of PW-4 that „merely
because aluminium phosphide is found does not by itself make it a case of

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suicide.‟ The trial Court did not extract the remaining portion of the
deposition of PW-4 to the effect that aluminium phosphide “cannot be given
by other party to an adult person and the poison is suicidal in nature, until
proven otherwise.”

26. The trial Court then surmised that if the deceased had committed suicide
by consuming aluminium phosphide, then the container of the aluminium
phosphide should have been found in that room, whereas according to the
Investigating Officer (IO) Inspector Inderjeet Singh (PW-35), it was not.
The trial Court also noticed that „there are numerous injuries on the person‟
going by the record of the external injuries noticed in the post mortem
report. It cannot be said that there were numerous injuries although injuries
were found “at the hand and one on the chin.” According to the trial Court
since post mortem report showed that hanging is post mortem and not ante
mortem, then the deceased herself could not have tied the chunni and hanged
herself. This again was not a correct extraction of the evidence of the two
doctors PWs-4 5. The trial Court failed to notice that after the viscera
report was received, PW-4 had in the final opinion stated that the hanging
was ante mortem. Even PW-5 in his deposition stated likewise.

27. The trial Court concluded that in view of all the above facts, although
aluminium phosphide was considered a suicidal poison, „it was administered
forcibly to the deceased and that is why there were injuries on the person of
the deceased and it was staged to show and pass it on as a case of suicide.‟

The trial Court’s errors

28. In coming to the above conclusion, the trial Court was indulging in

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conjectures and surmises. There was no question put to any of the doctors
that in the present case aluminium phosphide could have been forcibly
administered by anyone to the deceased. The medical evidence was clearly
to the contrary as spoken to by PW-4.

29. The linking of the injuries on the person of the deceased with this
forcible administering of poison was also not a possibility put to the doctors.
They were not asked what could be the reason for the injuries found on the
wrists and how they may have been caused. Thirdly the blood on the bangles
was not indicative of the blood type of the deceased or even that of the
accused. It was therefore not safe for the trial Court to simply conclude that
aluminium phosphide was forcibly administered to the deceased.

30. Next the trial Court proceeded to analyse the events soon prior to the
death of the deceased and here made a fatal error. In para 66, the trial Court
observed as under:

“66. It is important to note that accused has returned home at
around 7.40 AM. As per the evidence coming on record and then the
death is around 8:15 AM which clearly shows that he was also present
at home but he only managed to show by hanging on the door to show
that in fact deceased has bolted the door from inside but that would
have been the case then the bolt should have been broken in order to
open the door or the door itself would have broken but it is not the
case.”

31. With the help of Mr. R.M.Tufail, learned counsel for the Appellant as
well as Mr. Hirein Sharma, the learned APP for the State this Court has
thoroughly examined the entire record to find if there is any basis for the
trial Court to come to the conclusion „that accused has returned home at

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around 7.40 A.M.‟ There is not a shred of evidence to substantiate this
statement. This Court is at a loss to find out how the trial Court could have
come to the above determination. This was crucial for the entire analysis that
would follow. While the time of death was noted by the trial Court as 8.15
am which more or less tallies what the PWs have said, from the trial Court‟s
point of view it gave the Appellant 45 minutes to forcibly administer the
aluminium phosphide and then proceed to stage the hanging. This is where
the trial Court went seriously wrong. As already noticed, there are a number
of witnesses including PW-8 who talk about noticing the Appellant alight
from the bus at around 8 am and also PW-1 andPW-14 who noticed coming
at around 8.00 am and knocking at the door.

32. At this stage, the Court would like to refer to the explanation offered by
the Appellant in his statement under Section 313 Cr PC. His version reads as
under:

“I am innocent I have been falsely implicated. I was married to
Shashi on 24.09.2002. There was no demand of dowry either
prior or at the time or any time subsequent to marriage. Shashi
was never harassed or tortured at any point of time either by me
or by any member of my family. After our marriage we stayed
at village Kadhera PS: Ram Bhala, Distt. Bhagpat, UP. Shashi
was treated very well and was given all love and affection by
the family including me. She herself was very respectful
towards my family member and me. I was blessed with a son
and all expenses in this, regard was borne by me.

In August 2004 I was alloted a flat in police colony, Narela and
I along with my wife and younger brother Vijay startjed
residing there. My brother Vijay was got admitted in Maharaja
Agrasen School Narela. We were having a very happy and
peaceful life with no dispute between husband and wife.

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The financial condition of my in laws was very week and for
this reason my wife was brought up by her Mausi. I used| to
help my in laws financially by giving them friendly loan from
time to time. I had also withdrawn handsome amount from my
GPF Account and had paid total sum of Rs.75,000/- to them.
My in-laws have promised to return the same but was not doing
so. After shifting to Delhi we were facing financial crunch. As
such my wife requested to her parents to return her money but
they were not doing so and for this reason she was in a slight
off mood since a few days before death.

I wanted to engage a tutor for my brother but it was objected by
my wife Shashi. Since it would further effect the house hold
and this led to a petty quarrel between us on the point of
managing the house hold expenses.

She made a telephone call to her mother on 28.05.2005 and told
her that her position in the family has become awkward as they
were not returning the money. She cried on the telephone for
return of money. I tried to console her before my leaving for my
duty.

I was posted at 10th Batallion DAP, E-Block Security Line near
Sena Bhawan, Chanakya Puri, Delhi and my duty timing were 7
pm to 7 a.m. I left my duty from my residence in the evening of
28.04.2005. At midnight I got issued arm from the armory for
escort duty of Hon’ble Sh. K.R. Narayanan, Ex. President of
India. After return at around 4:20 am on 29.04,2005 I deposited
my weapon back in the armoury.

Sometime around 7 am I started back from Security Lines for
home and met Ct. Sanjeev Kumar at the bus stand. I changed
many buses from my home to reach my house and in last bus I
saw HC Satyawan also travelling in the same bus. At around 8
am I reached home and knocked the door but nobody opened
despite several knocks and pushes. Thereafter I took the
wooden ladder of my neighbours and climbed over the balcony

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but the door was closed. I came down and started rigorously
knocking and pushing the back door which ultimately opened
and rushed up stairs where I found Shashi hanging. I caught
hold of her and tried to pull her up on bed and open the knot.
The neighbours said that she had died; and I should not disturb
the site. 1do not remember exactly but it might be possible that
few of her bangles might have been broken in that process since
I was in very perplexed state. Somebody called the police,
inquiries were made from me and I told them that there was no
dispute between us and we were happily married couple, and
there was only trivial quarrel over the earlier house hold
experts. Relatives of Shashi also arrived and they stated that
there were no disputes between me and my wife and there was
no demand of dowry and we were living happily. They attended
the cremation of my wife at my village which was performed
by me, however, they were mis-guided and they leveled false
and frivolous allegations against me and my family. I had great
love and affection for my wife and there was no demand of
dowry at any point of time.

33. On his part, the Appellant did examine his younger brother Vijay (DW-

1) in whose cross examination by APP was unable to be dislodged from his
statement that he noticed the Appellant leaving for work at 6 pm on 28 th
April, 2005 and that the deceased was alive at the time he left for school on
the morning of 29th April, 2005.

34. The time during which the death of the deceased occurred was between
7.30 am and 8.15 am. There is absolutely no evidence led by the prosecution
to show that the accused was present at his house at 7.40 am as was
concluded by the trial Court. The evidence shows that he reached his house
only at around 8 am. The fact that PW-8 states that within 4 or 5 minutes
after he left the bus stop and reached his quarters, a neighbour told him that

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somebody had committed suicide meant that the death had already occurred
by the time PW-8 reached home and that was around the same time that the
Appellant must also have reached his house.

Law relating to circumstantial evidence

35. This was a case of circumstantial evidence where the law in that regard
by the Supreme Court is fairly well settled and the duties of the Court in
evaluating such evidence have been reiterated on a number of occasions. In
Mahmood v. State of UP (1976) 1 SCC 542, the Supreme Court observed as
under:

“It is well settled that in a case dependent wholly on
circumstantial evidence, the Court before recording a
conviction on the bias therefore must be firmly satisfied –

(a) that the circumstances from which the inference of guilt
is to be drawn, have fully established by unimpeachable
evidence beyond a shadow of doubt;

(b) that the circumstances are of a determinative tendency
unerringly pointing towards the guilt of the accused; and

(c) that the circumstances, taken collectively, are incapable
of explanation on any reasonable hypothesis save that of
the guilt sought to be proved against him.”

36. The Supreme Court, in Shankarlal Gyarasilal Dixit v. State of
Maharashtra (1981) 2 SCC 35, explained the law thus:

“Since this is a case of circumstantial evidence, it is necessary
to find whether the circumstances on which the prosecution
relies are established by satisfactory evidence, often described
as ‘clear and cogent’ and secondly, whether the circumstances
are of such a nature as to exclude every other hypothesis save
the one that the appellant is guilty of the offences of which he is
charged. In other words, the circumstances have to be of such a
nature as to be consistent with the sole hypothesis that the

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accused is guilty of the crime imputed to him.”

37. In Tanviben Pankaj Kumar Divetia v. State of Gujarat (1997) 7 SCC
156, the Supreme Court reiterated the above position and went on to opine:

“The principle for basing a conviction on the basis of
circumstantial evidence has been indicated in a number of
decisions of this Court and the law is well settled that each and
every incriminating circumstance must be clearly established
by reliable and clinching evidence and the circumstances so
proved must form a chain of events from which the only
irresistible conclusion about the guilt of the accused can be
safely drawn and no other hypothesis against the guilt is
possible. This Court has clearly sounded a note of caution that
in a case depending largely upon circumstantial evidence, there
is always a danger that conjecture or suspicion may take the
place of legal proof. The Court must satisfy itself that various
circumstances in the chain of events have been established
clearly and such completed chain of events must be such as to
rule out a reasonable likelihood of the innocence of the
accused. It has also been indicated that when the important link
goes the chain of circumstances gets snapped and the other
circumstances cannot, in any manner, establish the guilt of the
accused beyond all reasonable doubts. It has been held that the
Court has to be watchful and avoid the danger of allowing the
suspicion to take the place of legal proof for sometimes,
unconsciously it may happen to be a short step between normal
certainty and legal proof. It has been indicated by this Court
that there is a long mental distance between “may be true” and
must be true” and the same divides conjectures from sure
conclusions.”

38. Reference may also be made to Sudama Pandey v. State of Bihar
(2002) 1 SCC 679 wherein the Supreme Court stated:

“It is a settled principle that in the case of circumstantial
evidence, the various circumstances should be able to form a
chain pointing to the guilt of the accused. In cases where there

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is only circumstantial evidence, the Court has to consider the
evidence adduced by the prosecution and decide whether the
evidence proves particular facts relevant for the purpose of the
case and when such facts are proved the question arises whether
the facts are capable of giving rise to any inference of the guilt
of the accused person or not. An inference of guilt can be
drawn only if the proved fact is wholly consistent with the guilt
of the accused and certainly he is entitled to the benefit of doubt
if the proved fact is consistent with his innocence.”

39. In Gagan Kanojia Anr. v. State of Punjab (2006) 13 SCC 516, the
Supreme Court opined:

“9. … Indisputably, charges can be proved on the basis of the
circumstantial evidence, when direct evidence is not available.
It is well settled that in a case based on a circumstantial
evidence, the prosecution must prove that within all human
probabilities, the act must have been done by the accused. It is,
however, necessary for the courts to remember that there is a
long gap between ‘may be true’ and ‘must be true’. Prosecution
case is required to be covered by leading cogent, believable and
credible evidence. Whereas the court must raise a presumption
that the accused is innocent and in the event two views are
possible, one indicating to his guilt of the accused and the other
to his innocence, the defence available to the accused should be
accepted, but at the same time, the court must not reject the
evidence of the prosecution, proceeding on the basis that they
are false, not trustworthy, unreliable and made on flimsy
grounds or only on the basis of surmises and conjectures. The
prosecution case, thus, must be judged in its entirety having
regard to the totality of the circumstances. The approach of the
court should be an integrated one and not truncated or isolated.
The court should use the yardstick of probability and appreciate
the intrinsic value of the evidence brought on records and
analyze and assess the same objectively.

10. We would proceed on the well-known principles in regard
to appreciation of the circumstantial evidence which were

Crl A 294 of 2017 Page 19 of 24
noticed by the High Court in the following terms:

1) There must be a chain of evidence 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.

2) Circumstantial evidence can be reasonably made the
basis of an accused person’s conviction if it is of such
character that it is wholly inconsistent with the innocence
of the accused and is consistent only with his guilt.

3) There should be no missing links but it is not that every
one of the links must appear on the surface of the
evidence, since some of these links may only be inferred
from the proven facts.

4) On the availability of two inferences, the one in favour of
the accused must be accepted.

5) It cannot be said that prosecution must meet any and
every hypothesis put forward by the accused however
far-fetched and fanciful it might be. Nor does it mean
that prosecution evidence must be rejected on the
slightest doubt because the law permits rejection if the
doubt is reasonable and not otherwise.”

40. As explained by the Supreme Court in Anjan Kumar Sarma v. State of
Assam (2017) 14 SCC 359:

“(1) The circumstances from which the conclusion of guilt is
to be drawn should be fully established. The
circumstances concerned ‘must’ or ‘should’ and not ‘may
be’ 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 the explainable on any other hypothesis
except that the accused is guilty;

(3) The circumstances should be of a conclusive nature of
tendency;

(4) They should exclude every possible hypothesis except

Crl A 294 of 2017 Page 20 of 24
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
shown that in all human probability the act must have
been done by the accused [See: Sharad Birdhichand
Sarda v. State of Maharashtra (1984) 4 SCC 116; M.G.
Agarwal v. State of Maharashtra AIR 1963 SC 200].”

Analysis of evidence

41. In the present case, there are important links in the chain of
circumstances which need to be convincingly proved by the prosecution.
One of those links was establishing the presence of the Appellant in the
house at around the time that the death of the deceased occurred. This has
not been convincingly proved by the prosecution. The trial Court fell in error
in surmising that the Appellant was present at his house at around 7.40 am
when there was not even a shred of evidence to substantiate it.

42. The second important link is the medical evidence itself which must
unmistakeably point to the death being homicidal. Although initially the
investigation proceeded as if the death was homicidal and even the initial
medical opinion was to that effect, it changed after the receipt of the viscera
analysis which indicated the presence of aluminium phosphide in the
stomach of the deceased. This changed the scenario completely. The doctors
opined at a later stage that the death being suicidal could not be ruled out.
PWs 4 and 5 have stood their ground on this analysis. They have not been
termed „hostile‟ by the prosecution. In other words, the medical evidence
does not support the prosecution case about the death being homicidal. The

Crl A 294 of 2017 Page 21 of 24
other important link therefore in the chain of circumstances has not been
proved by the prosecution.

Motive not proved

43. The third and vital link in the chain of circumstances in a case of this
nature would be the motive for commission of the crime. It must be recalled
that the Appellant and all other accused have been acquitted for the offences
under Sections 498-A and 304-B IPC. In other words, the case of the
prosecution that the deceased was being harassed by the Appellant for
dowry or being subjected to cruelty soon before the death of the deceased
was not believed by the trial Court itself. On the contrary, the prosecution
witnesses have spoken about the deceased and the Appellant not having any
quarrel whatsoever.

44. In the circumstances the motive for the Appellant to murder his own
wife ought to have been probed and proved by the prosecution. No attempt
whatsoever has been made in that direction. Here the Court notes that the
trial Court completely missed this aspect. The trial Court focussed on the
motive, if any, for the deceased to commit suicide by stating in paragraph 67
as under:

“67. Accused has taken the defence that Shashi committed
suicide as Rs.75,000/- which he gave to her parents were not
returned by them. It is alleged that he gave money after
withdrawing from his GPF account. However, this fact is denied
by the parents of the deceased. The accused could have very well
established this fact by proving his GPF account. However, this
fact is denied by the parents of deceased. The accused could
have very well established this fact by proving his GPF account

Crl A 294 of 2017 Page 22 of 24
statement to at least show the withdrawal of amount from GPF
account but no such evidence has been adduced. Hence it cannot
be said that she committed suicide. Even otherwise as discussed
above, it is not suicidal death but it is a homicidal death.”

45. Once the case of proving the guilt of the accused for the offence under
Section 302 IPC was not established, the burden did not lie on the accused to
show the motive for commission of suicide but for the prosecution to show
the motive for the commission of murder by the accused. Here, that
important link in the chain of circumstances has not even been attempted to
be proved.

46. The Court would also like to observe at this stage that the trial Court has
not even found the Appellant guilty of the offence under Section 201 IPC,
viz., the screening of the evidence. The case of the prosecution, as must be
remembered, is that after forcibly administering the poison to the deceased,
the Appellant staged her suicide by making it appear that she hung herself.
Once he stood acquitted of the offence under Section 201 IPC, even this
theory failed.

Conclusion

47. There is a long distance to be travelled between „may be guilty‟ and
„must be guilty‟ as has been repeatedly stressed by the Supreme Court in
several decisions. In the present case, that distance has not been travelled by
the prosecution. The important links in the chain of circumstances have not
been proved by it.

Crl A 294 of 2017 Page 23 of 24

48. Consequently, the Court is unable to concur with the trial Court and
grants the Appellant the benefit of doubt for the offence under Section 302
IPC. Accordingly, the impugned judgment and the consequent order on
sentence of the trial Court are hereby set aside. The appeal is allowed. The
Appellant will be released forthwith unless wanted in some other case. The
trial Court record be returned together with a certified copy of this judgment.

S. MURALIDHAR, J.

VINOD GOEL, J.

JULY 13, 2018
mw

Crl A 294 of 2017 Page 24 of 24

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