CRIMINAL APPEAL NO. 2374 of 2014
 J U D G M E N T
1. The present appeal filed by the appellants-accused
emanates from the Judgment dated 29th August, 2013
passed by the High Court of Uttarakhand at Nainital in
Criminal Jail Appeal No. 64/2010, whereby the High Court
has dismissed the said appeal and upheld the conviction
and sentence awarded by the District & Sessions Judge,
Tehri Garhwal in Sessions Trial No. 22/2009. Both the
appellants-accused were convicted by the Sessions Court
for the offence under Section 302 read with Section 34 and
Section 201 of the IPC and were sentenced to undergo life
imprisonment and pay fine of Rs. 20,000/- for the offence
under Section 302 read with Section 34 and to undergo
rigorous imprisonment for a period of six years and pay fine
of Rs.10,000/- for the offence under Section 201 of the IPC.
2. The case in nutshell of the prosecution before the Trial
Court was that Smt. Shashi Devi had married the accusedSatye Singh four years prior to the date of incident which
had taken place any time between the evening of
27.06.2009 to the morning of 28.06.2009. The accusedIndra Devi happened to be the mother of the accused-Satye
Singh. On 28.06.2009 at about 8.40 a.m., Rai Singh (PW-8),
Pradhan of the village-Ger of the accused informed
Virendra Raj (PW-11), Naib Tehsildar, Revenue Police
telephonically that one lady had died due to burns. The
Naib Tehsildar -Virendra Raj (PW-11) therefore reached at
the spot i.e. Chhan (hut) of the accused, after making an
entry of the said information in the G.D. vide Rapat No.
28/42, and saw that the dead body of the deceased was
lying in the room of Chhan in the burnt condition. It was
the further case of the prosecution that Sharad Singh,
father of the deceased, on receiving the phone call from the
accused-Satye Singh had also arrived on the spot. The said
Sharad Singh gave a written complaint to the Naib Tehsildar
against the accused-Satye Singh (husband), Indra Devi
(mother-in-law), and Sangeeta Devi (sister-in-law) of the
deceased, which was registered as the Case Crime No.
16/2009 on 28.06.2009 at about 4.50 p.m., at the Revenue
Police Station Bayargaon, District Tehri Garhwal. After the
inquest proceedings were conducted, the dead body was
sealed and taken to the Baushari Hospital for the postmortem. The said Naib Tehsildar after drawing the
panchnama and other proceedings, arrested the accusedSatye Singh. He also recorded the statement of other
witnesses. Thereafter, he having been transferred, the
further investigation was handed over to the Naib Tehsildar,
Gunanand Bahuguna (PW-10). The said Investigating Officer
after completing the investigation filed charge-sheet
against the accused- Satye Singh and Indra Devi showing
the accused Sangeeta Devi as absconding, for the offences
under Sections 302 and 201 of the IPC in the Court of Chief
Judicial Magistrate, Tehri Garhwal.
3. The said case being triable by the Court of Sessions was
committed to the Sessions Court, Tehri Garhwal for trial.
Both the accused having denied the charges levelled
against them, the prosecution to prove the charges, led oral
evidence by examining 11 witnesses and also adduced
documentary evidence. After the completion of the
evidence of prosecution, the accused-Satye Singh in his
further statement before the Trial Court recorded under
Section 313 of Cr.P.C. stated inter alia that there was no
custom of dowry in their society and that he did not know
how his wife Shashi died. He further stated that he along
with other people of the village had kept on searching
Shashi for the whole night but she was not found. According
to him, Shashi had possibly committed suicide. The
accused- Indra Devi had stated that since she was the
mother of Satye Singh, she was falsely implicated in the
case. The Trial Court after appreciating the evidence on
record convicted and sentenced both the accused as stated
hereinabove, vide order dated 11.10.2010, which came to
be upheld by the High Court vide the impugned order.
4. The learned Advocate Mr. Shikhil Suri appearing on behalf
of the appellants-accused through Supreme Court Legal
Services Committee vehemently submitted that both the
Courts i.e., the Trial Court and the High Court had
committed gross error in convicting the appellants though
there was no cogent evidence adduced by the prosecution
to prove the charges levelled against the appellants.
According to him, neither the manner in which the alleged
incident had taken place was proved nor the place at which
the deceased was allegedly killed and burnt was proved by
the prosecution. He further submitted that since the
appellants happened to be the husband and mother-in-law
of the deceased, they were arrested and convicted, merely
on the basis of suspicion, conjectures and surmises. Taking
the court to the evidence of witnesses recorded during the
course of trial, he submitted that the case was based on
the circumstantial evidence as there was no eye witness to
the alleged incident and the prosecution had failed to prove
the entire chain of circumstances leading to the guilt of the
5. However, the learned Advocate Mr. Krishnam Mishra
appearing for the respondent-State of Uttarakhand
submitted that there being concurrent findings of the facts
recorded by the two courts, this Court exercising limited
jurisdiction under Article 136 of the Constitution of India
may not re-appreciate the evidence and come to a different
conclusion. Mr. Mishra further submitted that the
prosecution had examined the witnesses to prove that
there was a harassment to the deceased by the accused
and on the previous day of the incident also a quarrel had
taken place between the deceased and the accused, which
had resulted into the deceased Shashi leaving the house.
According to him, the accused had tried to mislead the
Investigating Officer by propounding the story that Shashi
had committed suicide, however, from the evidence of the
doctor viz. Sanjay Kavdwal (PW-9) and the injuries
mentioned in the post-mortem report, it was duly proved
that the injuries found on the dead body of Shashi were
ante-mortem, and her death was caused due to
Haemorrhage and shock on account of ante-mortem
injuries. He, pressing into service Section 106 of the
Evidence Act, submitted that there was no explanation
given by the accused in their further statement as to why
did Shashi leave their home the previous day and what
they did they do for the whole night, when Shashi was not
6. Now it may be stated at the outset that undeniably the
entire case of the prosecution hinged on circumstantial
evidence as there was no eye witness to the alleged
incident. Though the accused had tried to propound the
story of the deceased having committed suicide, both the
courts had rightly not accepted the said story, in view of
the clinching evidence of the Dr. Sanjay Kavdwal, who had
carried out the post-mortem of the deceased and recorded
the injuries found on the dead body of the deceased, which
were ante-mortem in nature. The ante mortem injuries
recorded in the post-mortem report were as under:
(i) Fracture occipital bone
(ii) Fracture left humoorus
(compound) lower
(iii) Abdomen was burst and
intestine was protruding out,
10CM x 4CM
(iv) Entire body had blackened,
charred, peeling, scaring like
parchment and the muscles
were visible. Hairs of the
head had burnt.
The said doctor had opined that the cause of death was
Haemorrhage and shock due to ante mortem injuries. The
said doctor was cross-examined at length to prove that the
injuries were not ante mortem and were due to burning
only, however, the doctor had categorically denied the
same and had further explained as to how and when the
blisters would develop on the body on account of burning.
From the said evidence of the doctor, there remains no
shadow of doubt that the deceased Shashi had died a
homicidal death.
7. This takes the Court to the next issue as to how and who
caused the death of Shashi. The prosecution in order to
prove the charges levelled against the accused had
examined 11 witnesses. However, none of witnesses had
any knowledge about the alleged incident. PW-1 viz. Jontara
Devi, aunt of the deceased had deposed, inter alia, that on
27th at about 11.00 o’clock Satye Singh had made a phone
call to her to enquire whether the Shashi had come to her
house, and that on the next day she had come to know that
Shashi was burnt to death. In the cross-examination, she
had admitted that the accused Satye Singh or all his family
members had never made any demand of dowry in her
presence, nor any assault was made by them in her
8. The father of the deceased – Sharad Singh (PW-2) of course
had stated in his evidence that the accused i.e., husband of
the deceased and his family members used to harass his
daughter- Shashi for dowry and, therefore, many a times
Shashi used to come his house running. He had also stated
that one month prior to the incident in question, Shashi had
come to his house and told him that she was being
assaulted and abused by the accused for the dowry. As
regards the incident in question, he had stated that Satye
Singh had called him in the morning at about 10-11 o’clock
to inform him that Shashi had committed suicide by setting
herself ablaze. He therefore along with villagers had gone to
the Chhan of the accused and saw that dead body of Shashi
was lying there in burnt condition. He had given the written
complaint to the police with regard to the incident in
question. In the cross examination he had admitted that he
had never seen any injuries on her body nor he had lodged
any complaint about the alleged harassment by the
accused. He had further stated that the Chhan i.e. cowshed
of the accused was situated at the distance of half an hour
of the house of the accused at village Ger and that there
was a forest of Baanj, Buransh in between the village and
the Chhan. He had also stated that the father of the Satye
Singh was deaf and dumb. He also admitted that on the
previous evening when Jontara Devi informed him about the
phone call from Satye Singh enquiring about Shashi, he did
not go to the village of the accused, thinking that they keep
on quarrelling like that. He also admitted that Satye Singh
and all his family members were present when he reached
at the spot i.e., the Chhan. He had admitted that he did not
know as to how his daughter was burnt, however, had
denied the suggestion that Shashi had caught fire from the
Chulla (hearth). He also denied that there was no
harassment by the accused to his daughter.
9. PW -3 Bhagdeyi Devi, mother of the deceased, PW-5
(Bharat Singh) uncle of the deceased and other villagers
PW-4 (Bhagat Singh), PW-6 (Balbir Singh) and PW-7 (Gabbar
Singh) were examined by the prosecution, however, none
had any knowledge as to how, when and where the
deceased was killed and burnt.
10. It is also very pertinent to note that the entire investigation
carried out by the Investigating Officers Gunanand
Bahuguna (PW -10) and Virendra Raj (PW-11) was in a very
cursory and shoddy manner. On receiving the information
from Shri Rai Singh, Pradhan of the village, the Naib
Tehsildar (Virendra Raj) had reached to the spot i.e the
Chhan and registered the complaint against the accused
Satye Singh, Indra Devi and Sangeeta Devi, at the instance
of the complainant Sharad Singh, however, had not
bothered to investigate as to how the incident had taken
place. There was no investigation carried out by either of
the Investigating Officers as to at which place the deceased
was killed and burnt, and how and by whom her burnt body
brought in the Chhan. Though, according to the
Investigating Officer, it was suspected that the crime was
committed by Atar Singh, father of Satye Singh, he was
never implicated in the case. There was no recovery and
discovery of any incriminating articles made from the
accused during the course of investigation and no attempt
was made to collect any evidence much less cogent
evidence to connect the accused with the alleged crime.
11. On the totality of circumstances and evidence on record, at
the most it could be said from the evidence of the parents
of the deceased that there was harassment by the accused
to the deceased, though no charge under section 498A of
IPC was framed by the trial court against the accused. It
could be further inferred from the evidence on record that
the deceased Shashi had left the house on the previous
evening of the alleged incident and that she was not found
during the whole night, nonetheless such circumstance
itself could not be said to be sufficient proof to come to a
conclusion that accused had murdered and burnt Shashi as
alleged. It is settled position of law that circumstances
howsoever strong cannot take place of proof and that the
guilt of the accused have to be proved by the prosecution
beyond reasonable doubt. At this juncture, let us
regurgitate, the golden principles laid down by this Court in
Sharad Birdhichand Sarda vs. State of Mahashtra
reported in 1984 (4) SCC 116. This court while drawing the
distinction between “must be” and “may be” observed as
under in para 153:
“153. A close analysis of this
decision would show that the
following conditions must be
fulfilled before a case against an
accused can be said to be fully
(1) the circumstances from which
the conclusion of guilt is to be
drawn should be fully
It may be noted here that this
Court indicated that the
circumstances concerned “must or
should” and not “may be”
established. There is not only a
grammatical but a legal distinction
between “may be proved” and
“must be or should be proved” as
was held by this Court in Shivaji
Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793 :
1973 SCC (Cri) 1033 : 1973 Crl LJ
1783] where the observations were
Certainly, it is a primary principle
that the accused must be and not
merely may be guilty before a
court can convict and the mental
distance between ‘may be’ and
‘must be’ is long and divides vague
conjectures from sure conclusions.
(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.”
12. It was further observed in Para-158 to 160 as under:
“158. It may be necessary here to
notice a very forceful argument
submitted by the Additional
Solicitor General relying on a
decision of this Court
in Deonandan Mishra v. State of
Bihar [AIR 1955 SC 801 : (1955) 2
SCR 570, 582 : 1955 Cri LJ 1647]
to supplement his argument that
if the defence case is false it
would constitute an additional
link so as to fortify the
prosecution case. With due
respect to the learned Additional
Solicitor-General we are unable to
agree with the interpretation
given by him of the aforesaid
case, the relevant portion of
which may be extracted thus:
“But in a case like this where the
various links as stated above have
been satisfactorily made out and
the circumstances point to the
appellant as the probable
assailant, with reasonable
definiteness and in proximity to
the deceased as regards time and
situation,. . . such absence of
explanation or false explanation
would itself be an additional link
which completes the chain.”
159. It will be seen that this Court
while taking into account the
absence of explanation or a false
explanation did hold that it will
amount to be an additional link to
complete the chain but these
observations must be read in the
light of what this Court said earlier
viz. before a false explanation can
be used as additional link, the
following essential conditions must
be satisfied:
(1) various links in the chain of
evidence led by the prosecution
have been satisfactorily proved,
(2) the said circumstance points to
the guilt of the accused with
reasonable definiteness, and
(3) the circumstance is in proximity to
the time and situation.
160. If these conditions are fulfilled
only then a court can use a false
explanation or a false defence as
an additional link to lend an
assurance to the court and not
otherwise. On the facts and
circumstances of the present case,
this does not appear to be such a
case. This aspect of the matter was
examined in Shankarlal
case [(1981) 2 SCC 35, 39 : 1981
SCC (Cri) 315, 318-19 : (1981) 2
SCR 384, 390 : 1981 Cri LJ 325]
where this Court observed thus :
[SCC para 30, p. 43 : SCC (Cri) p.
“Besides, falsity of defence cannot
take the place of proof of facts
which the prosecution has to
establish in order to succeed. A
false plea can at best be
considered as an additional
circumstances, if other
circumstances point unfailingly to
the guilt of the accused.”
13. The said principles have been restated in catena of
decisions. In State of U.P. vs. Ashok Kumar Srivastava
(1992) 2 SCC 86, it has been observed in para 9 that:
’’9. This Court has, time out of
number, observed that while
appreciating circumstantial
evidence the Court must adopt a
very cautious approach and should
record a conviction only if all the
links in the chain are complete
pointing to the guilt of the accused
and every hypothesis of innocence
is capable of being negatived on
evidence. Great care must be
taken in evaluating circumstantial
evidence and if the evidence relied
on is reasonably capable of two
inferences, the one in favour of the
accused must be accepted. The
circumstance relied upon must be
found to have been fully
established and the cumulative
effect of all the facts so
established must be consistent
only with the hypothesis of guilt.
But this is not to say that the
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.’’
14. Again in Majendran Langeswaran vs. State (NCT of
Delhi) & Anr. (2013) 7 SCC 192, this court having found the
material relied upon by the prosecution inconsistent and the
infirmities in the case of the prosecution, considered number
of earlier decisions, and held that the conviction can be
based solely on circumstantial evidence but it should be
tested on the touchstone of law relating to the circumstantial
evidence that all circumstances must lead to the conclusion
that the accused is the only one who has committed the
crime and none else.
15. Applying the said principles to the facts of the present case,
the Court is of the opinion that the prosecution had
miserably failed to prove the entire chain of circumstances
which would unerringly conclude that alleged act was
committed by the accused only and none else. Reliance
placed by learned advocate Mr. Mishra for the State on
Section 106 of the Evidence Act is also misplaced, inasmuch
as Section 106 is not intended to relieve the prosecution
from discharging its duty to prove the guilt of the accused.
In Shambu Nath Mehra vs. State of Ajmer, AIR (1956)
SC 404, this court had aptly explained the scope of Section
106 of the Evidence Act in criminal trial. It was held in para
“9. This lays down the general rule
that in a criminal case the burden
of proof is on the prosecution and
Section 106 is certainly not
intended to relieve it of that duty.
On the contrary, it is designed to
meet certain exceptional cases in
which it would be impossible, or at
any rate disproportionately
difficult, for the prosecution to
establish facts which are
“especially” within the knowledge
of the accused and which he could
prove without difficulty or
inconvenience. The word
“especially” stresses that. It
means facts that are preeminently or exceptionally within
his knowledge. If the section were
to be interpreted otherwise, it
would lead to the very startling
conclusion that in a murder case
the burden lies on the accused to
prove that he did not commit the
murder because who could know
better than he whether he did or
did not. It is evident that that
cannot be the intention and the
Privy Council has twice refused to
construe this section, as
reproduced in certain other Acts
outside India, to mean that the
burden lies on an accused person
to show that he did not commit the
crime for which he is tried. These
cases are Attygalle v. Emperor [AIR
1936 PC 169]
and Seneviratne v. R. [(1936) 3 All
ER 36, 49]”
16. In the case on hand, the prosecution having failed to prove
the basic facts as alleged against the accused, the burden
could not be shifted on the accused by pressing into service
the provisions contained in section 106 of the Evidence Act.
There being no cogent evidence adduced by the
prosecution to prove the entire chain of circumstances
which may compel the court to arrive at the conclusion that
the accused only had committed the alleged crime, the
court has no hesitation in holding that the Trial Court and
the High Court had committed gross error of law in
convicting the accused for the alleged crime, merely on the
basis of the suspicion, conjectures and surmises.
17. In that view of the matter, the impugned judgments
deserve to be quashed and set aside and are hereby set
aside accordingly. The accused are acquitted from the
charges levelled against them and are directed to be set
free forthwith.
18. The appeal stands allowed accordingly.


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