MD. ANOWAR HUSSAIN VERSUS STATE OF ASSAM

MD. ANOWAR HUSSAIN VERSUS STATE OF ASSAM

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 414 OF 2019
MD. ANOWAR HUSSAIN ……. APPELLANT(S)
 VERSUS
STATE OF ASSAM ……. RESPONDENT(S)
JUDGMENT
DINESH MAHESHWARI, J.
Table of Contents
Preliminary and brief outline.....................................................1
Relevant factual and background aspects..................................5
Prosecution Evidence......................................................................8
Stand of the appellant...................................................................14
Trial Court found the appellant guilty and awarded life
imprisonment.........................................................................15
High Court dismissed the appeal filed by the appellant.............20
Rival Submissions...................................................................23
The scope and width of these appeals......................................29
The principles applicable to this case.......................................31
Concurrent findings do not call for interference in this case......42
Preliminary and brief outline
1
1. This appeal is directed against the judgment and order dated
19.08.2016 in Criminal Appeal No. 100 (J) of 2013, whereby the Gauhati
High Court dismissed the appeal against the judgment and order dated
18.07.2013/25.07.2013, as passed by the Court of Sessions, Goalpara in
Sessions Case No. 96 of 2012, whereby the appellant was held guilty of
the offence under Section 302 of the Indian Penal Code, 18601
 and was
awarded the punishment of imprisonment for life and fine of Rs. 5,000/-
with default stipulations.
2. Before dealing with the matter in necessary details, we may draw
a brief outline to indicate the contours of the forthcoming discussion.
2.1. The prosecution case, based on circumstantial evidence, has
been that the victim, being the 20-year-old wife of appellant, died on
22.10.2010 while residing with the appellant; and that her dead body was
brought to the police station by her grandfather PW-1 Md. Akbar Ali, who
made an ejahar (Ex. 1) that ever since marriage the deceased was
subjected to physical and mental torture by the appellant, who caused her
death by inflicting grievous injuries and his family members were involved
in the conspiracy. As per the report (Ex. 2), in the inquest carried out at
the police station in the presence of informant and other witnesses,
injuries were noticed around the eyes, cheeks and neck of the deceased.
The First Information Report2
 was registered for offences pertaining to
Sections 498-A, 302 and 120-B IPC on the ejahar so made by PW-1
1 ‘IPC’, for short.
2 ‘FIR’, for short.
2
and the dead body was sent for post-mortem examination. As per the
post-mortem report (Ex. 4), the dead body carried several injuries and the
cause of death had been asphyxia due to throttling.
2.2. It has been the case of prosecution that the appellant was
absconding after the incident and was arrested two days later, at a distant
place. After investigation, the charge-sheet was filed against the appellant
for the offence punishable under Section 302 IPC whereas the other
accused persons were let off for want of positive evidence. One of the
peculiar features of the case had been that the private witnesses, PW-1
to PW-6, did not support the prosecution and they essentially suggested
that the victim was suffering from illness and died in hospital, where she
was taken for treatment. The appellant himself, in his statement under
Section 313 of the Code of Criminal Procedure, 19733
, endorsed the
statements so made by PW-1 to PW-6 and maintained that his wife died
in the hospital. He also stated that he had gone to bring medicines for
himself due to illness and was arrested by the police at Borabara.
2.3. The Trial Court disbelieved the story put forward by the private
witnesses and by the appellant about demise of the victim in hospital,
particularly with reference to the inquest report drawn at the police
station, duly signed by PW-1 to PW-4 and also with reference to the other
circumstances, as established in the testimony of the Investigating
Officer4
 PW-7 Anowar Hussain as also PW-8 Dr. Madhab Kr. Rahang.
3 ‘CrPC’, for short.
4 ‘IO’, for short.
3
The Trial Court also found that the accused-appellant came out with a
false plea of having gone to the other place to get medicines though no
such medicines were found in his pocket; and he failed to explain the
cause of homicidal death of his wife, who was living with him prior to her
death. Thus, the appellant was held guilty of the offence under Section
302 IPC on the basis of the chain of circumstances proving his guilt and
was awarded the punishment as noted above. The High Court also
proceeded with the considerations that weighed with the Trial Court while
further observing that when the appellant failed to offer proper
explanation to the incriminating circumstances or the explanation offered
by him was found to be untrue, it became an additional link to complete
the chain of circumstances.
2.4. In challenge to the conviction, it has been essentially contended
on behalf of the appellant that the consistent assertions of witnesses PW1 to PW-6 that the deceased died in hospital due to illness cannot be
ignored, given that they have not been declared hostile or crossexamined by the prosecution; that the inquest report was unreliable
because it was not proved as to from where the dead body was brought
to the police station; that the date of arrest of the appellant is
questionable with reference to the overwriting in arrest memo; that the
place of incident has not been proved because the site plan (Ex. 3) was
not enclosed with the charge-sheet; that the medical evidence alone is
not decisive of the matter; that non-explanation or falsity of explanation as
4
required under Section 106 of the Indian Evidence Act, 18725
, cannot be
a ground for conviction; and that the prosecution has failed to prove
motive. On the other hand, it is contended on behalf of the respondentState that when the deceased was the wife of the appellant and they were
living together, burden was heavy upon the appellant to explain the cause
of unnatural death of his wife, which he had failed to discharge. It has
also been contended that the appellant was absconding after the incident
and was arrested two days later; and the plea of alibi with reference to his
going to other place for purchasing medicines has not been proved. It has
further been contended that the depositions of PW-1 to PW-6 as regards
the alleged illness and hospitalisation of the deceased need to be
rejected because of want of corroborative evidence and then, being
falsified by the inquest report drawn at the police station. Thus, according
to the respondent-State, the concurrent findings recorded in this case
against the appellant call for no interference.
Relevant factual and background aspects
3. With reference to the outline as above and looking to the
questions arising for determination in this appeal, the relevant factual and
background aspects could be noticed, in brief, as follows:
3.1. As per the prosecution case, the deceased Samina Begum was
married to the appellant about 3 years prior to the date of the incident and
5 Hereinafter referred to as ‘the Evidence Act’.
5
was living with the appellant in village Kursapakhari Part II (Kumarkhali),
falling within the jurisdiction of Police Station, Lakhipur, District Goalpara,
Assam. It has been alleged that on 22.10.2010 at about 4:00 p.m., PW-1
Md. Akbar Ali brought the dead body of Samina Begum to the said Police
Station, Lakhipur and lodged an ejahar (Ex. 1) stating that the deceased
was the daughter of his nephew and was married to the appellant but,
ever since the marriage, the appellant had been inflicting physical and
mental torture on her; and that day (i.e., on 22.10.2010) at around 12:00
noon, the appellant assaulted the deceased with lathi and bare hands, as
a result of which she died. It was further stated by the informant that the
incident was an outcome of the conspiracy hatched by the appellant
along with other accused persons, namely Sanowar Hussain (brother of
the appellant), Rabia Khatun (mother of the appellant), Zabeda Khatun
(sister-in-law of the appellant), and Md. Rajab Ali (relative of the
appellant). On the basis of the ejahar so made by PW-1 Md. Akbar Ali,
FIR No. 398 of 2010 was registered at the said Police Station, Lakhipur
for offences under Sections 498-A, 302, 120-B IPC.
3.2. As per the assertion of the Investigating Officer, PW-7 Anowar
Hussain, after registration of FIR, he held the inquest at the police station
where he noticed injuries on the eyes and cheeks as also on the neck of
the deceased; and drew up the inquest report (Ex. 2) in the presence of
four persons. Thereafter, the dead body of the victim was sent for postmortem examination to Civil Hospital, Goalpara. On 23.10.2010, PW-8 Dr.
6
Madhab Kr. Rahang conducted the post-mortem examination and, in his
report Ex. 4, opined that the cause of death had been asphyxia due to
throttling, which was homicidal in nature.
3.3. The Investigating Officer, PW-7 Anowar Hussain, asserted that he
visited the place of occurrence and drew the site plan (Ex. 3) but he did
not find the accused-appellant there; and later arrested him on
24.10.2010 at Nidanpur market, away from the place of occurrence.
3.4. After completion of investigation, on 29.06.2011, the charge-sheet
was filed only against the appellant for the offence under Section 302 IPC
while the other persons were let off for want of positive evidence against
them. On 16.03.2012, the case was committed to the Court of Sessions.
The learned Sessions Judge, Goalpara framed the charge under Section
302 IPC against the accused-appellant who pleaded not guilty and
claimed trial.
3.5. In evidence, the prosecution examined eight witnesses and also
produced documentary evidence. After the prosecution evidence, the
accused-appellant was examined under Section 313 CrPC on
14.05.2013. The accused-appellant did not lead any evidence. Ultimately,
after having heard the parties, the Trial Court, by its judgment dated
18.07.2013, convicted the appellant of the offence under Section 302 IPC
and then, after having heard the parties on the question of sentence, by
its order dated 25.07.2013, awarded the punishment to the appellant of
life imprisonment and a fine of Rs. 5,000/- with default stipulations.
7
4. For the purpose of appreciating the findings recorded in this case,
worthwhile it would be to take note of the salient features of the
prosecution evidence emanating from the relevant depositions and
documents as also the salient features emanating from the stand taken
by the appellant in his examination under Section 313 CrPC.
Prosecution Evidence
5. As noticed, the prosecution has examined eight witnesses in this
case. PW-1 to PW-6 were the private witnesses whereas the IO was
examined as PW-7 and the doctor conducting post-mortem was
examined as PW-8.
5.1. As per the prosecution case, PW-1 Md. Akbar Ali, grandfather of
the deceased, had taken her dead body to the police station and made
the ejahar (Ex. 1), on the basis whereof FIR in question came to be
registered. He had also signed the report (Ex. 2) said to have been made
after inquest over the dead body at the police station. He, however, came
out with a different narrative in his deposition while suggesting illness and
`hospitalisation of the deceased. For its relevance, we deem it
appropriate to reproduce the entire of his deposition as follows: -
“Ext. 1 is the Ejahar and Ext. 1(1) is my signature. I know accused
Anowar Hussain, who is present in the dock. Deceased Samina
Khatun was my granddaughter. She was the daughter of Taher Ali
and the wife of the accused. The incident took place about 2(two)
years ago. Samina got married to the accused about 2(two) years
prior to the incident. She had been leading her conjugal life with
her husband in another village. Samina had been suffering from
illness since 10/15 days prior to the incident. One day, all of a
sudden, I heard that Samina had been taken to hospital. Later I
heard that Samina had died. I only know that she was sick and I
know nothing else. Their relationship as husband and wife was
8
cordial. Going to Lakhipur Hospital I saw Samina’s dead body. The
Ejahar was written by another person. At that time, I was not
mentally stable. As I was asked to put my signature, I put my
signature therein accordingly. Later police came and prepared the
inquest report on the dead body. I put my signature on it. Ext. 2 is
the inquest report and Ext. 2(1) is my signature. I know these
much only.
XXXXXXXXXXX
I don’t know who had written the ejahar and what was written in
it. The houses of Kitab, Sahar, Anser etc. are there near the
accused person’s house.”
5.1.1. The relevant contents of the ejahar (Ex. 1), admittedly lodged by
this witness PW-1 Md. Akbar Ali, on the basis whereof FIR in question
came to be registered, could also be usefully reproduced as under: -
“Humble submission is that Must. Samina Begum, daughter of
my nephew Sayed Ali of Kantapur, was married off to Anowar
Hussain of Kursapakhari Part- II (Kumarkhali) village about 3
(three) years ago. Since after the marriage accused No. 1 had
been inflicting physical and mental tortures on her. Today, i.e. on
22/10/10, Anowar Hussain confronted Samina Begum inside his
own house and grievously injured her in various parts of the body
by assaulting her with lathi and bare hands, as a result of which
she died. The said incident was the outcome of the conspiracy
hatched by the below named accused persons. Be it mentioned
herein that the said incident took place at around 12 noon today.
I, therefore, pray to you to take necessary action after
investigating into the matter.”
5.2. PW-2 Sofiur Rahman stated that the deceased Samina was
granddaughter of his cousin; that on the relevant day at around 12:00
noon, he heard in the market that Samina had died; and that he went to
the hospital and saw her dead body there.
5.3. PW-3 Barek Ali also stated that the deceased Samina was his
granddaughter. Though he asserted that he heard about Samina having
died after consuming poison and he went to hospital but, did not deny one
part of the prosecution case that the inquest report (Ex. 2) was bearing
9
his signature and that after the inquest, the police sent the dead body for
post-mortem examination. Owing to its relevance, the entire of his
deposition could also be reproduced as follows: -
“I know the complainant Akbar Ali. I know the accused person
present in the dock. Deceased Samina Khatun was the wife of the
accused. The incident took place about 1½ years ago.
I heard that as Samina had fallen sick, she had been taken to
hospital. She died there. I went to the hospital. I heard that Samina
had died as she had consumed poison. By the time I reached the
hospital, Samina had died. I know this much only.
Later the complainant, the grandfather of the deceased lodged
an ejahar, whereupon police came. I too went there. Ext. 2 is the
inquest report. Ext. 2(2) is my signature. Thereafter, Police sent
the dead body to the hospital for post-mortem examination.
XXXXXXXXXXX
Deceased Samina was my granddaughter. The house of the
accused is about 1½ k.m. away from that of mine. It is in another
village. Near the accused person’s house there are houses of
Zafar, Afzal, Sahar and Kader etc. Kader’s house is close by while
those of the rest are a little distance away.”
5.4. PW-4 Sukum Ali also stated in tandem with other witnesses that
Samina died in the hospital but testified to the fact that inquest report (Ex.
2) was prepared by the police bearing his signature and then, the dead
body was sent by the police to the hospital for post-mortem examination.
His deposition could also be usefully reproduced as under: -
“I know complainant Akbar Ali. I know accused Anowar who is
present in the dock. The deceased was the wife of the accused.
The occurrence took place about 2(two) years ago.
Samina died in the hospital. Villagers said that Samina had
been taken to hospital. I went to the hospital and found her dead.
The complainant filed a case in this regard.
Police came and prepared inquest report on the dead body. I
put my signature in the inquest report.
10
Later police sent the dead body to hospital for post mortem
examination. Ext. 2 is the inquest report and Ext. 2(3) is my
signature therein.
XXXXXXXXXXX
Declined.”
5.5. PW-5 Dilbar Hussain and PW-6 Musstt. Moimma Bewa stated in
their depositions that they heard about Samina having been taken to
hospital and having died in the hospital.
5.6. As noticed, the aforesaid witnesses PW-1 to PW-6 deviated from
the prosecution case and asserted that the victim lady fell ill, was taken to
the hospital, and she died in the hospital. However, giving ejahar (Ex. 1)
by PW-1 and holding of inquest at the police station with signatures of
witnesses on the inquest report (Ex. 2) are the facts duly established from
the relevant statements. We shall examine these and cognate aspects at
the relevant stage later.
5.7. At this stage, it would be appropriate to take note of the entire of
the testimony of the Investigating Officer PW-7 Anowar Hussain, who
stated as under: -
“On 22/10/2010, I was on duty in Lakhipur Police Station. On that
day, upon receipt of an ejahar from one Akbar Ali, the then Officerin-charge of Lakhipur Police Station registered a case and
entrusted me with the charge of its investigation. Ext. 1(2) is the
signature of the then O/C of Lakhipur Police Station Kamal
Chandra Seal, which I am familiar with.
The dead body of Samina Khatun was also brought (to P.S.) at
the time of lodging the Ejahar. The deceased was the wife of
accused Anowar. I held inquest on the dead body. Ext. 2 is the
inquest report and Ext. 2(4) is my signature.
I sent the dead body to Goalpara Civil Hospital for post mortem
examination.
11
I visited the place of occurrence and examined the witnesses. I
drew a sketch map of the place of occurrence. Ext. 3 is the said
sketch map (under objection) Ext. 3(1) is my signature (under
objection).
When I went to the place of occurrence I did not find the
accused there. I enquired about him but nobody could say
anything. Later I heard that the accused was roaming at Nidanpur.
I went there and arrested the accused. I apprehended the accused
at Nidanpur market, brought him to the police station and formally
arrested him on 24/10/2010. Later the accused person was
forwarded to the court.
Thereafter, the post mortem report was collected and on
completion of investigation, I filed the charge sheet against
accused Anowar Hussain for commission of offence punishable
u/s 302 I.P.C.
Ext. 4 is the said charge sheet and Ext. 4(1) is my signature
therein.
While holding inquest, I saw injuries in the eyes and cheeks. I
also saw injury in the neck of the deceased.
XXXXXXXXXXX
In the inquest report there is no detailed descriptions of the
injuries. The accused was brought (to P.S.) from Nidanpur market.
The name of the person, who gave the information, is not
mentioned in the diary. The incident took place around 12 noon on
22/10/2010 and the Ejahar was received at 4 p.m. The place of
occurrence is about 5/6 km away from the police station. One can
come there on foot or by a bicycle.
At 10 a.m. on 23rd day of the month I went to the place of
occurrence, but there is no specific mention in the case diary as to
how I reached there. H.G. Dilwar Hussain accompanied me.
The complainant brought the dead body along. There is no
specific mention in the case diary as to how it was brought and at
what time. Ext. 3 was not enclosed with the charge sheet. GD
Entry was made, but no certified copy of the same was enclosed
with the case diary.
I hold inquest in the police station. At the time of inquest 4 (four)
persons were present. I brought those persons from the road.
The village road is there to the north of the place of occurrence
and beyond that there is a house. It is not mentioned whose house
it is. There is paddy field to the south. There is no mention as to
whose house is there in the further south thereof. Abdulla’s house
is in the east and a betel nut plantation is there in the west. There
is no mention whose house is there next to that.”
12
5.8. PW-8 Dr. Madhab Kr. Rahang had conducted the post mortem
and opined that the cause of death was asphyxia as a result of throttling,
which was homicidal in nature. He testified to the post-mortem report (Ex.
4) wherein he had reported on the condition of the dead body, inter alia,
as under: -
i) Bleeding from both ears.
ii) Tongue was protruded.
iii) Multiple petechial haemorrhages in eyes and face.
iv) Crescentic abrasions on both sides of neck.
v) Bruising and ecchymosis in front of both sides of neck
(finger marks).
vi) Tear of larynx and muscles in front and side of the neck.
vii) Laceration of larynx.
viii) Both lungs were engorged and congested.
ix) Right heart was distended with blood while left was empty.
x) Petechial haemorrhages in liver, spleen and kidneys.
5.8.1. This witness PW-8 Dr. Madhab Kr. Rahang stated in his crossexamination as under: -
“I have not mentioned the number of marks of finger in my post
mortem report. Gristly mark signifies nail mark. Trachea is a
separate part and larynx is a separate part. Trichoid bone has
separate component. I had not dissected cardiac artery. I had
observed cardiac arteries; but there was no finding record of any
abnormality. If trachea is blocked, then the person may die. Death
may occur in the event of blockade of Vegas nerve. It is not a fact
that without dissection of carotid nerve, it cannot be ascertained if
there was any pressure of the Vegas. I have not dissected any
part of the neck to give the finding. Colour of ecchymosis was not
mentioned.
It is not a fact that such kind of death may occur by external
force of handle of a tube-well or through falling object on the neck.
It is not a fact that death was not due to strangulation. It is not a
fact that that I have not given proper finding.”
13
Stand of the appellant
6. In his examination under Section 313 CrPC, the circumstances
appearing from the evidence led by the prosecution were put to the
appellant. While he denied as false the allegations about his having
caused the death of his wife Samina and also denied the assertions made
by PW-7, the IO and PW-8, the doctor but then, he specifically stated that
Samina died in hospital and for that matter, stated his agreement with the
assertions made by PW-1 to PW-6. The appellant also stated that he was
arrested at Borabara where he had gone to bring medicines for himself,
as he was ill at that time. The relevant question and answers in the
examination of the accused-appellant under Section 313 CrPC read as
under: -
“*** *** ***
Q2 PW1 Akbor Ali is the grandfather of the deceased and
according to him Samina your wife was suffering from illness. On a
fine morning he heard that Samina your wife was taken to hospital
Subsequently he came to know that Samina had died in the
Hospital. What do you have to say in this regard?
Ans: Yes, Samina died at hospital.
Q3 PW2 is Sofior Rahman and in his evidence states that on the
eventful day he went to a weekly market. At noon hour he came
back home and heard Samina your wife had died. He went to the
hospital and had seen the dead-body there. What do you have to
say in this regard?
Ans: Yes.
Q4 PW 3 is Barek Ali and according to him Samina your wife was
taken to hospital as she fell ill. Subsequently he came to know that
Samina your wife died at hospital. He went to the said hospital and
had seen the dead-body. What do you have to say in this regard?
Ans. Yes.
Q5 *** *** ***
14
Q6 *** *** ***
Q7 *** *** ***
Q66
 PW7 the IO states that while he visited your house i/c with
this case you were not found there. No body could tell your
whereabouts. Subsequently he came to knows that you were
roaming at Nijampur the IO went there and arrested you from the
road of Nijampur. What do you have to say in this regard?
Ans. I was arrested by police not at Nijampur but at Borabara a
little distance away from there; I was there to bring medicines for
myself as I was ill at that time.
*** *** ***”
6.1. The accused-appellant declined to lead any evidence and hence,
the matter proceeded for hearing and ultimately, led to the impugned
judgment and order dated 18.07.2013/25.07.2013.
Trial Court found the appellant guilty and awarded life
imprisonment
7. Having taken note of the major features of the evidence on record
and the stand of the prosecution witnesses as also of the accusedappellant, we may summarise the relevant aspects of the decision of the
Trial Court and its process of reasoning.
7.1. In the first place, the Trial Court noticed the point calling for
determination in the matter, i.e., as to “whether the accused committed
murder by intentionally causing the death of his wife Samina Khatun, on
the eventful day i.e. 22.10.2010, at about 12:00 noon, at village
Kurshapakhri Part II (Kumarkhali) in his house?”
7.2. After taking into consideration the testimony of PW-8 who had
conducted post-mortem examination, the Trial Court observed that it was
clearly established that the cause of death was asphyxia due to throttling,
6 This question, though number 8 in continuity, has been mentioned as ‘Q6’ in the original.
15
which was ante-mortem and homicidal in nature; and though the defence
had cross-examined PW-8 on certain points, but had failed to derange
these findings. The Trial Court observed and held as under: -
“…The defence cross examined this doctor on some point; but it
has failed to disrupt any finding of the doctor on the matter that the
deceased died due to asphyxia as a result of throttling. I have
drawn a serious attention to this piece of evidence and am not
inclined to take a contrary view as regards the cause of death of
the deceased. It was done by throttling. Now, the question is who
the author of this crime. To seek answer of this query, we have to
revert back to the evidence on record.”
7.3. Coming to the question as to who was the author of this crime, the
Trial Court, while dealing with the testimony of PW-1, noticed that though
he alleged in the FIR that the appellant committed the murder of his
granddaughter but, took a somersault while deposing in the Court and
stated that being mentally unstable, he acted to the dictates of others and
affixed his signature on this piece of paper. The Trial Court also observed
that this witness attempted to give a different direction to the prosecution
story by taking the stand about illness and hospitalisation of the victim
before her death. The Trial Court deduced that this witness was
apparently won over, particularly when his narrative was running counter
to the evidence of the doctor conducting post-mortem examination, who
had categorically stated that the victim died due to throttling. The Trial
Court also noticed that the other (private) witnesses had deposed more or
less on the same lines, may be in slightly different directions; and found
no reason to accept their suggestion about demise of the victim in
hospital due to illness, for obvious inconsistency with the initial version in
16
the FIR as also for want of clarification of basic questions as to who, if at
all, brought the victim to hospital and when.
7.4. Thereafter, the Trial Court analysed the testimony of PW-7 Anowar
Hussain, the Investigating Officer who asserted that on 22.10.2010, the
FIR and dead body were received at the police station simultaneously;
that he carried out inquest, prepared the inquest report (Ex. 2), and
dispatched the body for post-mortem examination; and that subsequently,
he visited the site of incident, examined material witnesses, and drew up
sketch map of the site (Ex. 3). The Trial Court also rejected the objection
of defence against acceptance of the site plan (Ex. 3) in evidence while
observing that the defence had failed to satisfy as to why the said
material piece of evidence, be not brought on record. The Trial Court
further noticed from the testimony of PW-7 that when he visited the place
of occurrence, he did not find the appellant; and upon receiving the
information that the appellant was roaming at Nidanpur, he reached there
and took the appellant into custody.
7.5. The Trial Court also took note of the fact that in his statement
under Section 313 CrPC, the appellant took the plea that he was ill at that
time and had gone to Nidanpur to get some medicines but no medicine
was found by PW-7 in his pocket. The Trial Court observed that the plea
taken by the appellant was nothing but a lame excuse; and that the
appellant had also failed to specify as to who took his wife to hospital, if at
all she had fallen ill.
17
7.6. Thus, after taking into account the overall evidence on record and
after appreciating all the surrounding factors, the Trial Court concluded
that the prosecution had been able to establish the guilt of appellant for
commission of offence in question beyond any doubt. The relevant
observations and findings of the Trial Court read as under: -
“16. Now, we come to the most material part of the evidence.
Here, the I.O. has stated, in no uncertain terms that when he
visited the place of occurrence, he did not find the accused
thereon. From the evidence of other witness, it somehow comes to
light that the victim was shifted to hospital in the morning hour.
Now, the question is who had shifted her. All the witnesses
deposed in different directions; but the justice cannot be left to be
defeated, even if all attempts are made by the witnesses to derail
the course of justice. Now, reverting back to the evidence of PW-7,
it comes to light that he made enquiries as regards disappearance
of this accused from his house; but none could furnish any
satisfactory information as to why he was missing from his house.
Subsequently, the I.O. came to know that the accused was
roaming at Nidanpur. He immediately left for that place and on
reaching there, he found the accused roaming aimlessly at that
place and he, immediately, brought the accused under his custody.
In the instant case, none had seen the actual occurrence. From
the medical evidence it stands amply established that the
deceased/wife of the accused suffered homicidal death. Her neck
was throttled and she was done to death.
17. From Ext.2, the inquest report, it appears that the I.O. has
noted that there appeared spot around the neck of the deceased
ad the body was stiff. The doctor while performing post mortem
examination, has found that there was rigor mortis present there
on the whole body. There was also bleeding from both ears. He
also noted protruded tongue. Multiple petechial haemorrhge were
seen in eyes and face. Some bruising and eccymosis were also
found on both sides of the neck. The fact that the death was
caused by act of throttling stands abundantly established in the
instant case. The accused, during the whole trail, kept his mouth
shut. There are cogent and convincing evidence on record to hold
that both the accused person and the victim were residing in the
same house together. Death occurred to the wife of the victim. The
parents and other members of the house were all present there.
None deemed it fit to inform the accused as regards her falling
seriously ill if ever there was any tinge truth in it. Even the accused
did not elaborate on the matter as to who took the victim to
hospital after ever she had fallen ill. The whole matter has been
18
stage-managed. The involvement of the accused in this offence is
beyond doubt and is writ large on the face of record. He was
roaming here and there somewhere else. He took the plea in his
examination u/s 313 Cr.P.C. that he was ill at that time. So, he
went to Nidanpur to get some medicines; but the I.O. had not
found any medicine in his pocket. Even this plea remains a lame
excuse. Just to save the skin from this heinous offence, the
accused has taken such plea. The death of his wife occurred in an
unnatural condition. He remained unmoved. He even did not throw
light as to what had happened prior to her death. It did no good to
the accused to remain taciturn on the entire matter. Death
occurred due to throttling. The accused must explain what
happened at that time. His keeping mum, during the entire trail,
points to his guilty conscience. Upon overall analysis of the entire
evidence on record in its right perspective, this court is constrained
to hold that the prosecution has been able to establish the guilt of
the accused for commission of offence u/s 302 IPC beyond all
shadows of doubt. Hence, the accused is found guilty and he is
accordingly convicted.”
7.7. At the time of hearing on the question of sentence, the Trial Court
noticed an application on behalf of the accused-appellant for reexamining PW-8, the doctor conducting post-mortem, for correction of
certain expressions occurring in his deposition. The Trial Court found
such expressions not having any serious effect on the prosecution case
as regards the cause of death. It was also argued before the Trial Court
that there was no mens rea on the part of the appellant and the offence
may be scaled down to Section 304 Part II IPC. However, this submission
was found unacceptable by the Trial Court looking to the overall
circumstances including the cause of death of the victim and the conduct
of the appellant, where he fled from the house and offered no explanation
as to the cause of death of his wife. Finally, the Trial Court, by its order
dated 25.07.2013, awarded the punishment to the appellant of life
19
imprisonment and a fine of Rs. 5,000/- with default stipulations. The
relevant observations and conclusion of the Trial Court read as under: -
“22. I have very attentively gone through the case record and
have taken into account the submission of the learned counsel
on the matter that, the accused, if ever be held guilty, he should
be sentenced u/s 304(2); but I do not agree on this matter.
There are abundant evidence on record to hold that it was an
unnatural death. Death was caused to the effect of strangulation
and it happened in the house of the accused. But the accused
fled away there-from and he had no explanation worth his name
how death occurred in the house; he remained silent throughout
the entire trial and he had even not taken a plea that it was
caused by some other persons. The other witnesses tried to
derails the course of justice by trying to confuse the court on
different pleas. Some of them took the plea that the victim died
of consumption of poison, other pleaded that she was suffering
from diseases; but there is no evidence on record on that point.
Rather the evidence so surfaced upon critical analysis of the
entire evidence on record is justified to the fact that it was none
other than accused who caused death of his wife in his house
and after causing this heinous offence he escaped there-from
and was loitering in that area i.e. at Nidanpur where he was
finally detected by the police and rounded up. The prosecution
has succeeded to establish the guilt of the accused for
commission of offence u/s 302 IPC. There is no mitigating
circumstance to deal leniently in favour of the accused scaling
down the offence to any other section. Having found abundant
evidence on record, this court finds him guilty for committing the
offence u/s 302 IPC and sentence him life imprisonment and a
fine of Rs. 5,000/-, i/d to suffer RI for three months.”
High Court dismissed the appeal filed by the appellant
8. Aggrieved by the judgment and order aforesaid, the appellant filed
a criminal appeal, being Criminal Appeal No. 100 (J) of 2013, before the
Gauhati High Court that has been considered and dismissed by the High
Court by its impugned judgment and order dated 19.08.2016.
8.1. The High Court noticed the fact that the Trial Court had convicted
the appellant mainly relying upon the post-mortem examination report as
also the fact that no plausible explanation was given by the appellant
regarding the homicidal death of his wife. The High Court again took note
20
of the essential features of the evidence and particularly referred to the
fact that the inquest report (Ex. 2) was drawn at the police station itself
bearing the signatures, inter alia, of PW-1, PW-2, PW-3 and PW-4. The
story as put forward by these and other private witnesses about the death
of Samina in hospital due to illness was rejected with reference to the fact
that there was no corroborative evidence in that regard and on the
contrary, the post-mortem examination report (Ex. 4) falsified the story
that she had died due to illness. The High Court specifically observed that
if at all Samina had died in the hospital due to illness, there was no
occasion for the aforesaid witnesses to carry her dead body to the police
station.
8.2. Having said so, the High Court referred to a decision of this Court
in Trimukh Maroti Kirkan v. State of Maharashtra: (2006) 10 SCC 681,
on the principle that when the incriminating circumstances are put to the
accused and the accused either offers no explanation or his explanation
is found to be untrue, it becomes an additional link in the chain of
circumstances against him. The High Court found that, in the present
case, when the appellant and his wife were living together and the
appellant-husband failed to offer plausible explanation about the
homicidal death of his wife and there was no evidence as regards her
alleged illness or demise in hospital, it was a strong circumstance that he
alone was responsible for the crime.
21
8.3. The High Court, therefore, dismissed the appeal while observing,
inter alia, as under: -
“9. As seen above, Akbar Ali (PW-1) not only carried the dead
body of Samina to the Police Station, he also made the ejahar
alleging that appellant had tortured her to death. And at the Police
Station itself, Investigating Officer Anowar Hussain (PW-7) made
inquest report exhibit 2 on the dead body, which even bears the
signatures of Akbar Ali (PW-1), Barek Ali (PW-3) and Sukum Ali
(PW-4). But during the trial, all these witnesses changed their
versions and deposed that Samina died in the hospital due to
illness. This, perhaps, they did because of their relations with the
appellant. Similar is the evidence of Dilbar Hussain (PW-5) and
Mustt. Moimma Beuwa (PW-6). They too have testified that
Samina died in the hospital due to illness. But, no record of any
hospital was produced in defence by the appellant to even suggest
that Samina died in the hospital due to illness. On the contrary,
post mortem examination report of Dr. Madhab Kumar Rahang
(PW-8) completely falsifies the defence of appellant that Samina
died due to illness. Not only this, Anowar Hussain (PW-7) has
categorically testified that inquest report on the dead body of
Samina was made at the Police Station, which bears the
signatures of Akbar Ali, Barek Ali and Sukum Ali. These witnesses
have not denied their signatures in the inquest report. Had Samina
died in the hospital due to illness, there was no occasion for Akbar
Ali, Barek Ali and Sukum Ali to carry her dead body to the Police
Station.
10. The Supreme Court in the case of Trimukh Maroti Kirkan vs.
State of Maharashtra (2006) 10 SCC 681 has again approved the
well settled principle that when an incriminating circumstance is
put to the accused and that accused either offers no explanation
or offers an explanation which is found to be untrue, then the
same becomes an additional link in the chain of circumstances to
make it complete. In this case, the Supreme Court has also held
that where a husband is alleged to have committed the murder of
his wife and the prosecution succeeds in leading evidence to show
that shortly before the commission of crime they were seen
together or the offence takes place in the dwelling house where
the husband also normally resided and if the husband does not
offer any explanation how the wife received injuries or offers an
explanation which is found to be false, it was a strong
circumstance pointing that he alone was responsible for the
commission of crime.
11. The appellant has not disputed that at the time of incident
Samina lived with him in the same dwelling house. Samina died
due to throttling and her death was homicidal in nature. She also
had injuries around her neck, apart from other injuries. No
22
plausible explanation has been given by the appellant regarding
her homicidal death. He has also not been able to produce even
iota of evidence that she was suffering from any illness or died in
the hospital due to illness.
12. We therefore find no merit in this appeal. The appeal is
accordingly dismissed.”
Rival Submissions
9. Assailing the judgment and order aforesaid, learned counsel for
the appellant has put forward a variety of submissions to argue that the
appellant has been convicted not on legal evidence but only on suspicion.
Learned counsel would argue that the case of the prosecution is based
on circumstantial evidence but, the only circumstances relied upon by the
Courts are of medical opinion and non-explanation or purportedly false
explanation by the appellant. These circumstances, according to the
learned counsel, do not justify a conclusion on the guilt of the appellant
beyond reasonable doubt.
9.1. The learned counsel has strenuously argued that the date of
arrest of the appellant remains questionable because, as per the version
of PW-7 Investigation Officer, he was arrested on 24.10.2010 but, the
arrest memo shows that he was arrested on 22.10.2010 and then, the
said date was conveniently altered to 23.10.2010 and the same was
endorsed by learned Chief Judicial Magistrate on 24.10.2010.
9.2. The learned counsel has also submitted that the place of incident
has not been proved in this case as the prosecution has only relied upon
the evidence of PW-7 that he inspected the place of incident and had
drawn the site map but, in the case diary, there is no direct mention as to
23
how did he reach there; and then, the Ex. 3 (site plan) was not enclosed
with the charge-sheet. Even though an objection was raised before the
Sessions Court, it was simply brushed aside by stating that the defence
had failed to satisfy as to why this material piece of evidence be not
brought on record. The learned counsel has further submitted that PW-7
did not depose that Ex. 3 was prepared in the presence and as per the
information of the appellant.
9.3. Learned counsel for the appellant has further emphatically
submitted that all the independent witnesses, PW1 to PW6, have spoken
in one voice that the deceased died in hospital due to illness, and thereby
did not support the case of prosecution; and the prosecution neither
declared them hostile nor cross-examined them to prove that they were
speaking falsehood or were won over.
9.4. While assailing the evidence concerning inquest report (Ex. 2), the
learned counsel has argued that there is no evidence on record as to
from which place the dead body was carried to the police station; neither
PW-1 has stated any such fact nor the IO PW-7 has spoken about the
place from where the dead body was carried. This missing link, according
to learned counsel, operates against the prosecution case.
9.5. Learned counsel for the appellant has further argued, with
reference to the principles laid down in Sharad Birdhichand Sarda v.
State of Maharashtra: (1984) 4 SCC 116 that the Courts ought not to
place much reliance on the medical evidence as the same is not of
24
conclusive proof and is of opinion only. In this regard, the learned counsel
has further relied upon the decisions in Balaji Gunthu Dhule v. State of
Maharashtra: (2012) 11 SCC 685 and Nagendra Sah v. State of Bihar:
(2021) 10 SCC 725.
9.6. Further, while relying upon the decisions of this Court in Gargi v.
State of Haryana: (2019) 9 SCC 738; Shivaji Chintappa Patil v. State
of Maharashtra: (2021) 3 SCALE 384; Satye Singh & Anr. v. State of
Uttarakhand: (2022) 3 SCALE 534; and Nagendra Sah (supra), it has
been submitted that the so-called non-explanation or falsity of explanation
as required under Section 106 of the Evidence Act, by itself, cannot be a
ground of conviction.
9.7. The learned counsel has submitted that as per the prosecution
case, the deceased was continuously tortured by the appellant but, in the
absence of the proof of this allegation, prosecution ought to have proved
the motive behind the alleged incident; and while relying on Shivaji
Chintappa Patil (supra) as also Anwar Ali and Anr. v. State of
Himachal Pradesh: (2020) 10 SCC 166 and Nandu Singh v. State of
Madhya Pradesh (Now Chhattisgarh): Criminal Appeal No. 285 of
2022, decided on 25.02.2022, it has been argued that motive having not
been proved, conviction of the appellant remains unsustainable.
9.8. The learned counsel has further submitted that if two views are
possible, as found in the present case, then the view in favour of the
accused (appellant herein) must be accepted, by placing reliance on a
25
few decisions like that in Jose Alias Pappachan v. Sub-Inspector of
Police, Koyilandy and Anr.: 2016 (10) SCC 519. The learned counsel
has also referred to the decision in Sarwan Singh v. State of Punjab:
AIR 1957 SC 637 to submit that suspicion, howsoever strong, cannot
take the place of proof.
10. Per contra, learned counsel for respondent-State has emphatically
submitted that the prosecution has produced relevant evidence and the
circumstances have been established beyond reasonable doubt so as to
complete the chain of circumstances and ruling out any other hypothesis
except the guilt of the appellant.
10.1. Learned counsel for respondent-State has relied upon the postmortem report (Ex. 4) read with the deposition of PW-8 and the inquest
report (Ex. 2) while submitting that there were ante-mortem injuries on the
body of the deceased and the cause of death was asphyxia due to
throttling. Further, while placing reliance on the testimony of PW-7, it has
been argued that the appellant was absconding after the incident and was
arrested from a different location after two days; and that the appellant
miserably failed to prove his plea of alibi that he was ill and had gone to
purchase medicine.
10.2. Learned counsel for respondent-State has forcefully submitted
that the false explanation given by the appellant that his wife died in the
hospital due to illness becomes an additional link to complete the chain of
circumstances, as the appellant failed to adduce any evidence of hospital
26
record concerning the treatment of the deceased or discharge/death
certificate, to prove that his wife indeed died in the hospital. In this regard,
reliance has been placed on the said decision in Trimuk Maroti Kirkan
v. State of Maharashtra: (2006) 10 SCC 681.
10.3. Learned counsel has further submitted that in case the death of
victim would have occurred due to an illness and/or in the hospital, her
dead body would not have been taken to the police station for lodging the
FIR nor the inquest would have revealed the injuries as reported in the
inquest report (Ex. 2). Moreover, in the present case, when the offence
has been committed in the matrimonial home where the appellant and the
deceased were residing together, the burden under Section 106 of the
Evidence Act, was heavy upon the appellant to explain as to how the
victim sustained so many grievous injuries and died because of throttling.
The emphasis of learned counsel has been that when the appellant
asserted that the deceased died due to illness in hospital, the burden to
prove the facts regarding illness and hospitalisation was upon the
appellant under Section 106 of the Evidence Act. Furthermore, when the
appellant stated in his statement under Section 313 CrPC that he was ill
and had gone to Nidanpur to purchase medicines for himself, the burden
to prove his alibi was also upon the appellant, but the explanation
provided by him was found to be false.
10.4. The learned counsel for respondent-State has again relied upon
Trimuk Maroti Kirkan (supra) to submit that in the cases of
27
circumstantial evidence, when offence is committed in the confines of a
home, though the initial burden would be on the prosecution but the
nature and amount of evidence to be led by it to establish the charge
cannot be of the same degree as is required in other cases of
circumstantial evidence. The learned counsel has also relied upon
several other decisions, like Alber Oraon v. State of Jharkhand: (2014)
12 SCC 306 and Sudru v. State of Chhattisgarh: (2019) 8 SCC 333.
10.5. The learned counsel for respondent-State has placed reliance on
Ujjagar Singh v. State of Punjab: (2007) 13 SCC 90 and Vivek Kalra v.
State of Rajasthan: (2014) 12 SCC 439 to submit that where chain of
circumstances establishes beyond reasonable doubt that it is the accused
who committed the offence, the Court cannot hold that absence of motive
to exonerate the accused.
10.6. The learned counsel has submitted that in view of appellant’s
admission under Section 313 CrPC about his arrest, the contention that
the arrest of the appellant after the incident is questionable, has no
foundation to stand upon. The learned counsel has further refuted the
contention that the place of occurrence is not proved. In this regard, it has
been argued that PW-7 has clearly deposed that after receiving FIR, he
prepared the inquest report at the police station itself, which was
witnessed by four persons and thereafter, he visited the place of
occurrence, examined witnesses and drew up the site plan (Ex. 3) of
place of occurrence and signed thereon. PW-7 also deposed that he did
28
not find the appellant at the place of occurrence and could be arrested
only from Nidanpur market on 24.10.2010. The learned counsel has
further submitted that the site map, at point 'Ka', clearly indicates the
place of occurrence to be the house of the appellant. Although an
objection of the site plan not accompanying the charge-sheet has been
taken by the defence, but it is seen that the same is duly exhibited in
evidence and is the part of original record before the Courts. Moreover,
the Investigating Officer categorically described the place of occurrence in
his cross-examination. Therefore, according to the learned counsel,
objection to Ex. 3 was rightly rejected by the Trial Court while finding that
the appellant and the deceased resided in the same house together and
the death of deceased occurred inside the house.
10.7. While concluding, learned counsel for the respondent-State has
submitted that the present case is of clinching evidence, which has duly
been considered by the two Courts, while recording concurrent findings
as regards the guilt of the appellant, in committing the murder of his
deceased wife and hence, no interference is called for.
The scope and width of these appeals
11. As noticed, the Trial Court and the High Court have concurrently
recorded the findings in this case that the prosecution has been able to
successfully establish the chain of circumstances leading to the only
conclusion that the appellant is guilty of the offence of murder of his wife.
The concurrent findings leading to the appellant’s conviction have been
29
challenged in this appeal as if inviting re-appreciation of entire evidence
on its contents as also its surrounding factors. Though the parameters of
examining the matters in an appeal by special leave under Article 136 of
the Constitution of India have been laid down repeatedly by this Court in
several of the decisions but, having regard to the submissions made in
this case, we usefully reiterate the observations in the case of Pappu v.
The State of Uttar Pradesh: 2022 SCC OnLine SC 176 wherein, after
referring to Articles 134 and 136 of the Constitution of India and Section 2
of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction)
Act, 1970 as also with a detailed reference to the relevant decisions, this
Court has summed up the subtle distinction in the scope of a regular
appeal and an appeal by special leave in the following words: -
“20.…. In such an appeal by special leave, where the Trial Court
and the High Court have concurrently returned the findings of fact
after appreciation of evidence, each and every finding of fact
cannot be contested nor such an appeal could be dealt with as if
another forum for reappreciation of evidence. Of course, if the
assessment by the Trial Court and the High Court could be said to
be vitiated by any error of law or procedure or misreading of
evidence or in disregard to the norms of judicial process leading to
serious prejudice or injustice, this Court may, and in appropriate
cases would, interfere in order to prevent grave or serious
miscarriage of justice but, such a course is adopted only in rare
and exceptional cases of manifest illegality. Tersely put, it is not a
matter of regular appeal. This Court would not interfere with the
concurrent findings of fact based on pure appreciation of evidence
nor it is the scope of these appeals that this Court would enter into
reappreciation of evidence so as to take a view different than that
taken by the Trial Court and approved by the High Court.”
11.1. Keeping the principles aforesaid in view, we may examine if the
concurrent findings call for any interference in this case while reiterating
that wholesome reappreciation of evidence is not within the scope of this
30
appeal, even though we have scanned through the entire evidence in order
to appropriately deal with the contentions urged before us.
The principles applicable to this case
12. Learned counsel for the appellant has endeavoured to argue that
there had been several shortcomings and lacunae in the prosecution
case and that the relied upon factors, including the medical evidence and
the so-called falsity of explanation of the appellant, are not providing such
links in the circumstances which may lead to the finding on the guilt of the
appellant. While dealing with such submissions, we may usefully take
note of the basic principles applicable to this case, as noticeable from the
relevant cited decisions.
12.1. The principles explained and enunciated in the case of Sharad
Birdhichand Sarda (supra) remain a guiding light for the Courts in
regard to the proof of a case based on circumstantial evidence. Therein,
this Court referred to the celebrated decision in the case of Hanumant v.
State of Madhya Pradesh: AIR 1952 SC 343 and deduced five golden
principles of proving a case based on circumstantial evidence in the
following terms:-
“152............It may be useful to extract what Mahajan, J. has laid
down in Hanumant case:
“It is well to remember that in cases where the evidence is
of a circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn should in the first
instance be fully established, and all the facts so
established should be consistent only with the hypothesis
of the guilt of the accused. Again, the circumstances
should be of a conclusive nature and tendency and they
should be such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a
31
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.”
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 established:
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established.
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
Maharashtra7 where the observations were made:
“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.
154. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial
evidence.
155. It may be interesting to note that as regards the mode of
proof in a criminal case depending on circumstantial evidence, in
the absence of a corpus delicti, the statement of law as to proof of
the same was laid down by Gresson, J. (and concurred by 3 more
Judges) in King v. Horry [1952 NZLR 111] thus:
7 (1973) 2 SCC 793.
32
“Before he can be convicted, the fact of death should be
proved by such circumstances as render the commission
of the crime morally certain and leave no ground for
reasonable doubt: the circumstantial evidence should be
so cogent and compelling as to convince a jury that upon
no rational hypothesis other than murder can the facts be
accounted for.”
156. Lord Goddard slightly modified the expression “morally
certain” by “such circumstances as render the commission of the
crime certain”.
157. This indicates the cardinal principle of criminal
jurisprudence that a case can be said to be proved only when
there is certain and explicit evidence and no person can be
convicted on pure moral conviction...””
12.1.1. It is also pertinent and useful to notice that in the said case of
Sharad Birdhichand Sarda, this Court also enunciated the principles for
using the false explanation or false defence as an additional link to
complete the chain of circumstances in the following terms: -
“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 Bihar8
 to
supplement his argument that if the defence case is false it would
constitute an additional link so as to fortify the prosecution
case……..
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.……..”
8 AIR 1955 SC 801 : (1955) 2 SCR 570, 582 : 1955 Cri LJ 1647.
33
12.2. In the case of Balaji Gunthu Dhule (supra), where the High Court
did not accept the evidence of the alleged eye-witnesses but proceeded
to principally rely on the post-mortem report while recording conviction,
this Court did not approve such an approach, while observing in the
referred paragraph as under: -
“9. The High Court has also relied upon the post-mortem report of
the doctor. In our opinion, since the entire evidence of the
eyewitnesses has not been accepted by the High Court, it could
not have merely relied upon the post-mortem report to convict the
appellant for an offence under Section 302 IPC…….”
12.3. In the case of Gargi (supra), where the appellant was held guilty
of murder of her husband by the two Courts essentially with reference to
the operation of Section 106 of the Evidence Act, this Court pointed out
that this provision does not absolve the prosecution of its primary burden
in the following words: -
“33.1. Insofar as the “last seen theory” is concerned, there is no
doubt that the appellant being none other than the wife of the
deceased and staying under the same roof, was the last person
the deceased was seen with. However, such companionship of the
deceased and the appellant, by itself, does not mean that a
presumption of guilt of the appellant is to be drawn. The trial court
and the High Court have proceeded on the assumption that
Section 106 of the Evidence Act directly operates against the
appellant. In our view, such an approach has also not been free
from error where it was omitted to be considered that Section 106
of the Evidence Act does not absolve the prosecution of its primary
burden…”
12.4. In the case of Shivaji Chintappa Patil (supra), this Court
reiterated the principles that Section 106 of the Evidence Act does not
absolve the prosecution of discharging the primary burden; and that want
of explanation or falsity of explanation in the statement under Section 313
can only be used as an additional circumstance when the prosecution has
34
proved the other circumstances leading to no other conclusion but that of
guilt of the accused. In that case, one of the significant features had been
that as per the post-mortem report, the cause of death of the victim was
asphyxia due to hanging but, admittedly, there were no marks on the
body of the victim which could suggest violence or struggle; and the
medical expert himself had not ruled out the possibility of suicidal death.
This Court observed and said as under: -
“22. …Section 106 of the Evidence Act does not absolve the
prosecution of discharging its primary burden of proving the
prosecution case beyond reasonable doubt. It is only when the
prosecution has led evidence which, if believed, will sustain a
conviction, or which makes out a prima facie case, that the
question arises of considering facts of which the burden of proof
would lie upon the accused.
*** *** ***
24. Another circumstance relied upon by the prosecution is, that
the appellant failed to give any explanation in his statement under
Section 313 Cr.P.C. By now it is well-settled principle of law, that
false explanation or non-explanation can only be used as an
additional circumstance, when the prosecution has proved the
chain of circumstances leading to no other conclusion than the
guilt of the accused. However, it cannot be used as a link to
complete the chain. Reference in this respect could be made to
the judgment of this Court in Sharad Birdhichand Sarda (supra).”
12.5. In Satye Singh (supra), where the prosecution failed to prove the
basic facts as against the accused, this Court, again, emphasised that
Section 106 of the Evidence Act does not relieve the prosecution of its
primary duty to prove the guilt of the appellant as follows: -
“15. …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
35
prosecution from discharging its duty to prove the guilt of the
accused….”
12.6. In the case of Nagendra Sah (supra), the relevant background
aspects were that the appellant’s wife died due to burn injuries on
18.11.2011 whereupon, Unnatural Death Case was registered. According
to the post-mortem report, the cause of death was asphyxia due to
pressure around neck by hand and blunt substance. Later, as late as on
25.08.2012, the FIR was registered for the offence under Section 302 IPC
and ultimately, the appellant was tried and convicted of the offences
under Sections 302 and 201 IPC. This Court, however, noticed the factors
that there was no explanation by the prosecution for the inordinate delay
in registering the FIR; that none except the official witnesses supported
the prosecution case; that there was no evidence to suggest that the
relationship between the appellant and the deceased was strained in any
manner; and that the appellant was not the only person residing in the
house where the incident took place. This Court, thus, held that the facts
established were not consistent with only one hypothesis of the guilt of
the appellant. In such a background, this Court observed that conviction
could not have been based only on the post-mortem report; and when the
prosecution failed to establish the chain of circumstances, the failure of
the accused to discharge the burden of Section 106 of the Evidence Act
was not relevant at all. This Court and observed and held as under: -
“22. Thus, Section 106 of the Evidence Act will apply to those
cases where the prosecution has succeeded in establishing the
facts from which a reasonable inference can be drawn regarding
the existence of certain other facts which are within the special
36
knowledge of the accused. When the accused fails to offer proper
explanation about the existence of said other facts, the court can
always draw an appropriate inference.
23. When a case is resting on circumstantial evidence, if the
accused fails to offer a reasonable explanation in discharge of
burden placed on him by virtue of Section 106 of the Evidence Act,
such a failure may provide an additional link to the chain of
circumstances. In a case governed by circumstantial evidence, if
the chain of circumstances which is required to be established by
the prosecution is not established, the failure of the accused to
discharge the burden under Section 106 of the Evidence Act is not
relevant at all. When the chain is not complete, falsity of the
defence is no ground to convict the accused.
24. As we have already held in this case, the circumstances
established by the prosecution do not lead to only one possible
inference regarding the guilt of the appellant-accused.
25. Therefore, what survives for consideration is only an opinion of
the medical practitioner who conducted autopsy and gave a report
on the cause of death. As held in Balaji Gunthu Dhule9
, only on the
basis of post-mortem report, the appellant could not have been
convicted of the offence punishable under Section 302 IPC and
consequently for the offence punishable under Section 201 IPC.
26. Moreover, there is no explanation brought on record by the
prosecution for the delay in registering first information report.
Though the post-mortem report was available on 18-11-2011, first
information report was belatedly registered on 25-8-2012.
27. Therefore, we are of the considered view that the guilt of
the accused has not been established beyond a reasonable
doubt….”
12.7. The case of Trimukh Maroti Kirkan (supra) as relied upon by the
High Court and referred to by learned counsel for the respondent carry at
least one significant feature akin to the present case. Therein, the
accused was charged of the murder of his wife; there had been
allegations of ill-treatment of the deceased-wife by the accused-husband;
and though the victim had been killed by strangulation, the information
given to her parents was that she had died on account of snakebite and
9 (2012) 11 SCC 685 (as referred to hereinbefore).
37
all in the village were also told that the deceased had died on account of
snakebite. After taking note of the facts of the case, this Court exposited
on the principles governing the assessment of circumstantial evidence,
the operation of Section 106 of the Evidence Act, and the effect of want of
necessary explanation or giving of false explanation by the accused, inter
alia, in the following passages: -
“12. In the case in hand there is no eyewitness of the occurrence
and the case of the prosecution rests on circumstantial evidence.
The normal principle in a case based on circumstantial evidence is
that the circumstances from which an inference of guilt is sought to
be drawn must be cogently and firmly established; that those
circumstances should be of a definite tendency unerringly pointing
towards the guilt of the accused; that the circumstances taken
cumulatively should form a chain so complete that there is no
escape from the conclusion that within all human probability the
crime was committed by the accused and they should be
incapable of explanation on any hypothesis other than that of the
guilt of the accused and inconsistent with their innocence.
*** *** ***
14. If an offence takes place inside the privacy of a house
and in such circumstances where the assailants have all the
opportunity to plan and commit the offence at the time and in
circumstances of their choice, it will be extremely difficult for the
prosecution to lead evidence to establish the guilt of the accused if
the strict principle of circumstantial evidence, as noticed above, is
insisted upon by the courts. A judge does not preside over a
criminal trial merely to see that no innocent man is punished. A
judge also presides to see that a guilty man does not escape. Both
are public duties. (See Stirland v. Director of Public Prosecutions10
— quoted with approval by Arijit Pasayat, J. in State of
Punjab v. Karnail Singh11.) The law does not enjoin a duty on the
prosecution to lead evidence of such character which is almost
impossible to be led or at any rate extremely difficult to be led. The
duty on the prosecution is to lead such evidence which it is
capable of leading, having regard to the facts and circumstances
of the case. Here it is necessary to keep in mind Section 106 of
the Evidence Act which says that when any fact is especially within
the knowledge of any person, the burden of proving that fact is
upon him…….
10 1944 AC 315: (1944) 2 All ER 13 (HL).
11 (2003) 11 SCC 271 : 2004 SCC (Cri) 135.
38
15. Where an offence like murder is committed in secrecy inside a
house, the initial burden to establish the case would undoubtedly
be upon the prosecution, but the nature and amount of evidence to
be led by it to establish the charge cannot be of the same degree
as is required in other cases of circumstantial evidence. The
burden would be of a comparatively lighter character. In view of
Section 106 of the Evidence Act there will be a corresponding
burden on the inmates of the house to give a cogent explanation
as to how the crime was committed. The inmates of the house
cannot get away by simply keeping quiet and offering no
explanation on the supposed premise that the burden to establish
its case lies entirely upon the prosecution and there is no duty at
all on an accused to offer any explanation.
*** *** ***
21. In a case based on circumstantial evidence where no
eyewitness account is available, there is another principle of law
which must be kept in mind. The principle is that when an
incriminating circumstance is put to the accused and the said
accused either offers no explanation or offers an explanation
which is found to be untrue, then the same becomes an additional
link in the chain of circumstances to make it complete. This view
has been taken in a catena of decisions of this Court.”
12.8. The case of Sudru (supra) had been the one where the appellant
was charged of the murder of his son in his house; and the principal
prosecution witnesses, including wife of the appellant, turned hostile to
the prosecution but, the facts did come out of their testimony that the
deceased was left alone in the company of the appellant and the next
day, the deceased was found dead. Taking note of the salient features of
the case and operation of the requirements of Section 106 of the
Evidence Act, this Court observed, as regards consideration of the
relevant part of evidence of a hostile witness and the effect of failure on
the part of the accused to discharge his burden, as follows: -
“6. No doubt, in the present case all the witnesses who are related
to the accused and the deceased have turned hostile. PW 1 Janki
Bai, wife of the appellant and the mother of the deceased has also
turned hostile. However, by now it is settled principle of law, that
39
such part of the evidence of a hostile witness which is found to be
credible could be taken into consideration and it is not necessary
to discard the entire evidence...
*** *** ***
“8. In this view of the matter, after the prosecution has established
the aforesaid fact, the burden would shift upon the appellant under
Section 106 of the Evidence Act. Once the prosecution proves,
that it is the deceased and the appellant, who were alone in that
room and on the next day morning the dead body of the deceased
was found, the onus shifts on the appellant to explain, as to what
has happened in that night and as to how the death of the
deceased has occurred.
“9. In this respect reference can be made to the following
observation of this Court in Trimukh Maroti Kirkan v. State of
Maharashtra12:
“21. In a case based on circumstantial evidence where
no eyewitness account is available, there is another
principle of law which must be kept in mind. The
principle is that when an incriminating circumstance is
put to the accused and the said accused either offers
no explanation or offers an explanation which is found
to be untrue, then the same becomes an additional link
in the chain of circumstances to make it complete.”
12.9. Apart from the above, we may also usefully take note of the recent
decision of this Court in the case of Sabitri Samantaray v. State of
Odisha: 2022 SCC OnLine SC 673. In that case based on circumstantial
evidence, with reference to Section 106 of the Evidence Act, a 3-judge
bench of this Court noted that if the accused had a different intention, the
facts are specially within his knowledge which he must prove; and if, in a
case based on circumstantial evidence, the accused evades response to
an incriminating question or offers a response which is not true, such a
response, in itself, would become an additional link in the chain of events.
The relevant part of the enunciation by this Court reads as under: -
12 (2006) 10 SCC 681 (as referred to hereinbefore).
40
“19. Thus, although Section 106 is in no way aimed at relieving the
prosecution from its burden to establish the guilt of an accused, it
applies to cases where chain of events has been successfully
established by the prosecution, from which a reasonable inference
is made out against the accused. Moreover, in a case based on
circumstantial evidence, whenever an incriminating question is
posed to the accused and he or she either evades response, or
offers a response which is not true, then such a response in itself
becomes an additional link in the chain of events.”
12.10. As regards the relevancy of motive in a case based on
circumstantial evidence, the weight of authorities is on principles that if
motive is proved, that would supply another link in the chain of
circumstantial evidence but, the absence of motive cannot be a ground to
reject the prosecution case, though such an absence of motive is a factor
that weighs in favour of the accused. In the cases of Nandu Singh and
Shivaji Chintappa Patil (supra), reliance has essentially been placed on
the decision in Anwar Ali (supra), wherein this Court has referred to and
relied upon the principles enunciated in previous decisions and has laid
down as under: -
“24. Now so far as the submission on behalf of the accused that in
the present case the prosecution has failed to establish and prove
the motive and therefore the accused deserves acquittal is
concerned, it is true that the absence of proving the motive cannot
be a ground to reject the prosecution case. It is also true and as
held by this Court in Suresh Chandra Bahri v. State of Bihar13 that
if motive is proved that would supply a link in the chain of
circumstantial evidence but the absence thereof cannot be a
ground to reject the prosecution case. However, at the same time,
as observed by this Court in Babu14, absence of motive in a case
depending on circumstantial evidence is a factor that weighs in
favour of the accused. In paras 25 and 26, it is observed and held
as under:-
13 1995 Supp (1) SCC 80: 1995 SCC (Cri) 60.
14 (2010) 9 SCC 189: (2010) 3 SCC (Cri) 1179.
41
“25. In State of U.P. v. Kishanpal15, this Court examined
the importance of motive in cases of circumstantial
evidence and observed:
‘38. … the motive is a thing which is primarily
known to the accused themselves and it is not
possible for the prosecution to explain what
actually promoted or excited them to commit the
particular crime.
39. The motive may be considered as a
circumstance which is relevant for assessing the
evidence but if the evidence is clear and
unambiguous and the circumstances prove the
guilt of the accused, the same is not weakened
even if the motive is not a very strong one……...’
26. This Court has also held that the absence of motive in a
case depending on circumstantial evidence is a factor that weighs
in favour of the accused. (Vide Pannayar v. State of T.N.16).”
13. Keeping the aforesaid principles in view, when we examine the
facts of this case and the concurrent findings by the Trial Court and the
High Court, we find no substance in the contentions urged by learned
counsel for the appellant.
Concurrent findings do not call for interference in this case
14. As noticed, the Trial Court and the High Court have concurrently
recorded the findings in this case that the prosecution has been able to
establish the chain of circumstances leading to the conclusion that the
appellant is guilty of the offence of murder of the victim, his wife. The
fundamental facts established by the prosecution evidence are that the
dead body of the victim was brought to the police station; and that after
registering FIR on the basis of report (Ex. 1) made by PW-1, inquest was
carried out and the inquest report (Ex. 2) was drawn at the police station,
which was signed by the informant as also by the other witnesses, PW-2,
15 (2008) 16 SCC 73: (2010) 4 SCC (Cri) 182.
16 (2009) 9 SCC 152 : (2009) 3 SCC (Civ) 638 : (2010) 2 SCC (Cri) 1480.
42
PW-3 and PW-4. The post-mortem report and the deposition of PW-8
further make it clear that the victim had died because of asphyxia, which
was a result of throttling. The other undeniable fact has been that the
victim was the wife of the appellant and before her death, she was living
with the appellant. It has not been the case of the appellant or even the
private witnesses that anyone else was also living/residing with them. Yet
another factor has been that while his wife had died an unnatural death,
the appellant was not to be found nearby and could only be apprehended
later at a distant place. These facts are either undeniable or are clearly
established by the prosecution evidence. Thus, it cannot be said that the
prosecution has not discharged its primary burden of bringing home
cogent circumstances pointing towards the guilt of the appellant.
14.1. Then, the other links in the aforementioned chain of
circumstances could be iterated as follows: -
(a) The witness PW-1 Md. Akbar Ali, attempted to suggest the story
that the victim was suffering from illness and had been hospitalised
but did not deny that he had been to the police station. He
admitted having put his signatures on the ejahar (Ex. 1) which led
to the FIR and also on the inquest report (Ex. 2) but attempted to
suggest the so-called imbalance of his mind, which was only an
uncertain pretext.
(b) The witnesses PW-2 to PW-6 also attempted to suggest that the
victim was suffering from illness, she was hospitalised, and she
43
died in the hospital but there had been two basic snags as regards
their testimonies: one, that there was no corroboration in the form
of any evidence to show her hospitalisation, if at all any such event
had taken place; and second, that the witnesses PW-3 and PW-4
did not deny their signatures on the inquest report (Ex. 2), which
was drawn at the police station. It needs hardly any reiteration that
if the victim had died in the hospital due to illness, neither there
was any occasion to carry her dead body to the police station nor
the dead body would have carried such injuries, which were
indicative of physical assault nor there was any reason for the
doctor conducting post-mortem to opine about asphyxia due to
throttling.
(c) The story sought to be suggested by PW-1 to PW-6 about the
illness and hospitalisation of the victim had been of blatant
falsehood and the appellant, in his examination under Section 313
CrPC, categorically endorsed that story and accepted the
testimony of PW-1 to PW-6 as correct. There had not been any
other explanation by the appellant as regards injuries on the
person of his wife, who was living with him, and about the cause of
her unnatural death with throttling.
(d) The appellant was admittedly not available at his place of
residence at the relevant time and not even in the village area but
was admittedly away to a different place. Again, the appellant
44
suggested in his examination under Section 313 CrPC that he had
gone to the other place to procure medicines for himself. Neither
his nature of illness was shown nor he was found carrying any
medicine.
15. The factors as noticed hereinabove may not be decisive of the
matter when taken singularly but, when the entire chain of circumstances,
established by way of undeniable facts and the proven facts are
juxtaposed with these factors; and all the relevant factors are joined
together, the present one turns out to be a case where the burden
envisaged by Section 106 of the Evidence Act operates heavily against
the appellant.
16. The victim was none other than the wife of the appellant and was
living with him. Thus, the basic fact as to when did he part with the
company of his wife was within the knowledge of the appellant alone. He
explained nothing in that regard. Secondly, when the appellant’s wife was
found killed with the dead body carrying several injuries and the cause of
death having been asphyxia due to throttling, the appellant was required
to explain such injuries, which the deceased sustained while living with
him in the same dwelling house. Again, there had not been any
explanation from the appellant. Thirdly, if his wife, who was residing with
him, had been so ill as to be taken to hospital, the facts in that regard
were also especially within the knowledge of the appellant and he was
required to explain the nature of ailment as also the mode and manner by
45
which she was admitted to the hospital. As noticed, there is no
explanation on these aspects from the appellant; rather the narrative
cooked up by the witnesses and picked up by the appellant about the
alleged ailment and hospitalisation of the deceased is found to be of utter
falsehood. Fourthly, if his wife had died and still he had gone to some
other place, the reason for doing so was also especially within the
knowledge of the appellant alone. The reason as assigned by the
appellant (about his own illness) is also found to be far away from truth.
17. Fact of the matter remains that all the aforesaid facts and factors,
which ought to be in the knowledge of the appellant, are either not
clarified or the explanation given by the appellant turns out to be false.
Hence, in the given set of facts and circumstances, the legal
consequence is that such omission coupled with such falsehood indeed
provide additional links in the chain of circumstances.
18. Thus, the sum and substance of the matter is that the falsehood
cooked up by the witnesses (regarding illness and hospitalisation of the
victim) and readily accepted by the appellant coupled with the
undischarged burden of Section 106 of the Evidence Act provide such
strong links in this matter that the chain of circumstances is complete,
leading to the conclusion on the guilt of the appellant beyond any doubt.
19. The other submissions, as regards the doubts on site plan (Ex. 3)
or on the date of arrest of the appellant or about the place from where the
dead body was carried to the police station, have only been noted to be
rejected. The IO, PW-7, has categorically established that he had drawn
the plan (Ex. 3) at the site and the same could not have been removed
46
out of consideration merely because of the curable fault that it was not
annexed with the charge-sheet. The date of arrest also loses its
relevance because the material fact remains undeniable that the
appellant was not found at the place and the area of his dwelling house
and had admittedly gone to Nidanpur, as stated by himself in his
statement under Section 313 CrPC. In our view, the place from where the
dead body was picked up to be carried to the police station, has hardly
any bearing in the present case because the only other place suggested
by the appellant in league with the witnesses PW-1 to PW-6 had been the
hospital where the victim was allegedly admitted. Such a suggestion has
been found to be false to the core. In any case, the dead body was
indeed carried to the police station and the IO made the inquest report
(Ex. 2) at the police station itself.
20. Taking all the aforesaid facts and circumstances together, it is not
a case where the motive could have played any decisive role nor it had
been a case where two views were possible. Equally, the present case
had not been of conviction on suspicion alone. Therefore, the other
decisions cited by learned counsel for the appellant do not call for much
dilation in the present case.
21. For what has been discussed hereinabove, this appeal fails and
is, therefore, dismissed.
……....…………………….J.
 (DINESH MAHESHWARI)
47
……....…………………….J.
 (ANIRUDDHA BOSE)

NEW DELHI;
OCTOBER 13, 2022.
48

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