Circumstantial evidence should not only be consistent with guilt of accused but also be inconsistent with his innocence: Allahabad HC

While drawing curtains on all the doubts on the evidentiary value of circumstantial evidence, the Allahabad High Court in a learned, laudable, landmark and latest judgment titled Shriniwas vs State of UP and 3 Others in Criminal Misc. Application U/S 372 Cr.P.C (Leave to Appeal) No. 150 of 2014 delivered recently on February 11, 2022 has held that circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. The observation was made by a Division Bench of Justice Vivek Kumar Birla and Justice Subhash Vidhyarthi of Allahabad High Court while dismissing an appeal filed by the victim against the order of Additional Sessions Judge, Badaun, acquitting the respondent of charges under Section 302, 34 IPC. This judgment certainly deserves to be read in its entirety.

To start with, it is first and foremost put forth in para 2 that, “As already held by this Court in number of cases that leave application filed under Section 378(3) Cr.P.C. is not required in the appeal filed by the victim under Section 372 Cr.P.C. like the present appeal. A reference may be made to the order dated 4.8.2021 passed in Criminal Appeal U/S 372 Cr.P.C. No. 123 of 2021 (Rita Devi vs. State of U.P. and another). As such, the application for leave to appeal stands rejected as not maintainable and / or not required.”

As we see, the Bench then observes in para 3 that, “This appeal has been filed against the order dated 18.2.2014 passed by the Additional Sessions Judge, Court No. 8, Badaun acquitting the respondent nos. 2, 3 and 4 in Session Trial No. 917 of 2011 (State v. Monu Singh and others) arising out of Case Crime No. 539 of 2011, under Sections 302, 34 IPC, P.S. Wazeerganj, District Badaun.”

To put things in perspective, the Bench then envisages in para 4 that, “According to the first information report the deceased Ramniwas, who was practising as a Doctor in the clinic of Hariom, on 17.5.2011 at about 11:00 A.M. went to Katgaon on daily routine and at about 9:00-10:00 P.M. son (Anil) of the deceased called the brother (deceased) of the informant and asked for coming home and the deceased informed that he is coming shortly. When at about 10:00 P.M. the deceased did not reach home the informant and Anil went out for searching him. At about 02:00 A.M. they found dead body of the deceased in the field of Babu Singh on the side of road. First information report was registered against unknown persons as Case Crime No. 539 of 2011, under Sections 302, 34 IPC., P.S. Wazeerganj, District Badaun.”

As it turned out, the Bench then enunciates in para 6 that, “Judgment of acquittal was passed by the trial court on the grounds that although P.W.-1 and P.W.-2 are witnesses of fact but admittedly, they have not seen the incident. They have stated only to the extent that the dead body was found in a field when they had gone out to search the deceased. P.W.-1, Sriniwas Sharma, is the brother of the deceased and P.W-2 is the wife of the deceased. P.W.-2, Smt. Ramsukhi, has stated that her son had called his father and he stated that he is coming home shortly, however, he did not come and when the deceased did not reach home P.W.-1 had gone out with his nephew (Anil) to search him and the dead body of the deceased was found in a field. Although it is alleged that the darati, the weapon used in the incident, was recovered on pointing out of Narendra Singh (one of the accused), however, it was found that the incident was dated 17.5.2011, whereas the weapon was recovered after more than two months on 19.7.2011 and even the F.S.L. report had mentioned that it cannot be ascertained that there was human blood on the weapon used, therefore, it was held that this being case of circumstantial evidence and there was no cogent evidence to complete the chain of circumstances so as to hold that the crime was committed by the accused and none else.”

Simply put, the Bench then notes in para 7 that, “Challenging the impugned judgment of acquittal submission of learned counsel for the appellant is that P.W.-1 in his statement had clearly stated that when he had gone out in search of the deceased he had seen the accused persons coming from the side of the spot, where the dead body was found and this clearly connects the accused persons with the offence. It was further pointed out that even the weapon used in the incident was recovered on pointing out of Narendra Singh. Submission, therefore, is that the impugned judgment is liable to be set aside and the accused persons are liable to be convicted in the present case.”

While citing relevant case law, the Bench then specifies in para 11 that, “In Achhar Singh vs. State of Himachal Pradesh (2021) 5 SCC 543 reiterating the law, Supreme Court held that it is fundamental in criminal jurisprudence that every person is presumed to be innocent until proven guilty and it is obligatory on the prosecution to establish the guilt of the accused save where the presumption of innocence has been statutorily dispensed with, for example, under Section 113-B of the Evidence Act, 1872. It was further held that it is well crystallized principle that if two views are possible, the High Court ought not to interference with the trial court’s judgment. However, such a precautionary principle cannot be overstretched. It is well settled that there is no bar High Court’s power to re-appreciate evidence in an appeal against acquittal. Paragraph 14 to 16 of the aforesaid judgment are quoted as under:-

14. It is fundamental in criminal jurisprudence that every person is presumed to be innocent until proven guilty, for criminal accusations can be hurled at anyone without him being a criminal. The suspect is therefore considered to be innocent in the interregnum between accusation and judgment. History reveals that the burden on the accuser to prove the guilt of the accused has its roots in ancient times. The Babylonian Code of Hammurabi (17921750 B.C.), one of the oldest written codes of law put the burden of proof on the accuser. Roman Law coined the principle of actori incumbit (onus) probatio (the burden of proof weighs on the plaintiff) i.e., presumed innocence of the accused. In Woolmington v. Director of Public Prosecutions , the House of Lords held that the duty of the prosecution to prove the prisoner’s guilt was the “golden thread” throughout the web of English Criminal Law. Today, Article 11 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights all mandate presumption of innocence of the accused.

15. A characteristic feature of Common Law Criminal Jurisprudence in India is also that an accused must be presumed to be innocent till the contrary is proved. It is obligatory on the prosecution to establish the guilt of the accused save where the presumption of innocence has been statutorily dispensed with, for example, under Section 113-B of the Evidence Act, 1872. Regardless thereto, the ‘Right of Silence’ guaranteed under Article 20(3) of the Constitution is one of the facets of presumed innocence. The constitutional mandate read with the scheme of the Code of Criminal Procedure, 1973 amplifies that the presumption of innocence, until the accused is proved to be guilty, is an integral part of the Indian criminal justice system. This presumption of innocence is doubled when a competent Court analyses the material evidence, examines witnesses and acquits the accused. Keeping this cardinal principle of invaluable rights in mind, the appellate Courts have evolved a selfrestraint policy whereunder, when two reasonable and possible views arise, the one favourable to the accused is adopted while respecting the trial Court’s proximity to the witnesses and direct interaction with evidence. In such cases, interference is not thrusted unless perversity is detected in the decisionmaking process.

16. It is thus a well crystalized principle that if two views are possible, the High Court ought not to interfere with the trial Court’s judgment. However, such a precautionary principle cannot be overstretched to portray that the “contours of appeal” against acquittal under Section 378 CrPC are limited to seeing whether or not the trial Court’s view was impossible. It is equally well settled that there is no bar on the High Court’s power to re-appreciate evidence in an appeal against acquittal11. This Court has held in a catena of decisions (including Chandrappa v. State of Karnataka (2007) 4 SCC 415, State of Andhra Pradesh v. M. Madhusudhan Rao (2008) 15 SCC 582 and Raveen Kumar v. State of Himachal Pradesh (2021) 12 SCC 557) that the Cr.P.C. does not differentiate in the power, scope, jurisdiction or limitation between appeals against judgments of conviction or acquittal and that the appellate Court is free to consider on both fact and law, despite the self-restraint that has been ingrained into practice while dealing with orders of acquittal where there is a double presumption of innocence of the accused.””

Quite ostensibly, the Bench then holds in para 13 that, “We find that it is a case of circumstantial evidence and P.W.-2 is witness of fact and that too it is not even a case of last seen evidence. P.W.-2, wife of the deceased, had stated to the extent that her son called his father on which he stated that he will shortly come but he did not reach home and thereafter P.W.-1 gone out in search of the deceased. P.W.-1, brother of the deceased, has stated only this much that the dead body was found in a field and he had seen the accused persons coming from the side of the dead body. The recovery of weapon allegedly used in the incident was recovered after more than two months allegedly on pointing out of one accused Narendra Singh, which was sent to F.S.L. report for forensic report. From perusal of original record the Forensic Report dated 19.11.2012 (Ex. 24Ka) indicates that five articles including darati were sent for F.S.L. report on which the finding was given that on item no. 5-darati the bloodstained were disintegrated and therefore, were not sufficient to record any finding. In respect of shirt, baniyan (vest) and underwear it was found that the bloodstained were not sufficient / useless for the purpose of classification and although it was stated that insofar as the garments and soil is concerned, human blood was found.”

Be it noted, the Bench then observes in para 14 that, “We also noticed that the weapon recovered was a darati and the P.W.-6, the doctor, who has conducted the postmortem, stated that the nature of injuries could not have been caused by darati and it could have been caused only by sharp edged weapon only. This opinion assumes importance as darati is a sharp edged tool having spikes (kantedar) and thus will leave different cut marks on the body.”

As a corollary, the Bench then holds in para 15 that, “In such view of the matter, we find that the court below has rightly held that the weapon used could not be connected with the offence. We, therefore, in such circumstances, are of the opinion that it is a case of circumstantial evidence, where the chain of circumstances were not so complete so as to arrived at the conclusion that the accused persons have committed the offence by using the weapon allegedly recovered.”

It cannot be glossed over that the Bench then mentions in para 16 that, “We also find that the motive attributed is extremely weak, which is stated to be of the year 2003, whereas the incident is of the year 2011, that too in relation to daughter of the informant and niece of the deceased. The other circumstantial evidence are only to the extent that the dead body was found in a field and except the bald statement of P.W.-1 to the extent that the accused persons were coming from the direction of the spot, where dead body was found and recovery of alleged weapon which, infact, could not be connected with the crime, having been made after two months, there is no other evidence, we do not find that the findings recorded by the trial court are perverse in nature so as to warrant any interference by this Court in exercise of the powers under Section 384 Cr.P.C.”

In addition, the Bench then holds in para 17 that, “In the totality of circumstances, we find that the trial court has taken possible view of the matter on appreciation of the evidence and we do not find that it is a fit case for interference in the judgment of trial court.”

Finally, the Bench then concludes by holding in para 18 that, “The appeal is accordingly dismissed.”

In sum, it is beyond my pen’s capability to express in words how elegantly and meticulously everything has been explained clearly in this extremely commendable judgment by Justice Subhash Vidyarthi and Justice Vivek Kumar Birla of Allahabad High Court. We thus find that the Court has made it quite distinctly clear reiterating that circumstantial evidence should not only be consistent with guilt of accused but also be inconsistent with his innocence. The Court found no ground for interference against the order of acquittal by the Additional Sessions Judge of Badaun thus acquitting very rightly the respondent of charges under Sections 302 and 34 of IPC.

Be it noted, the Bench then observes in para 14 that, “We also noticed that the weapon recovered was a darati and the P.W.-6, the doctor, who has conducted the postmortem, stated that the nature of injuries could not have been caused by darati and it could have been caused only by sharp edged weapon only. This opinion assumes importance as darati is a sharp edged tool having spikes (kantedar) and thus will leave different cut marks on the body.” As a corollary, the Bench then holds in para 15 that, “In such view of the matter, we find that the court below has rightly held that the weapon used could not be connected with the offence. We, therefore, in such circumstances, are of the opinion that it is a case of circumstantial evidence, where the chain of circumstances were not so complete so as to arrived at the conclusion that the accused persons have committed the offence by using the weapon allegedly recovered.”

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