Full Judgment Text
1
Reportable
2024 INSC 19
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 163 of 2010
DARSHAN SINGH …APPELLANT
VERSUS
STATE OF PUNJAB …RESPONDENT
J U D G M E N T
Aravind Kumar, J.
1. This appeal by special leave arises out of judgment and order dated
23.07.2009 passed in Criminal Appeal No.593-DB of 2000 by the High
Court of Punjab & Haryana. The High Court has upheld the order of
Signature Not Verified
conviction and sentence, as against Darshan Singh (the appellant) and has
Digitally signed by
Rajni Mukhi
Date: 2024.01.04
17:26:22 IST
Reason:
allowed the appeal of Rani Kaur (Accused No. 2), thereby acquitting her of
2
all charges. The State of Punjab has not challenged the acquittal of Rani
Kaur by filing any special leave petition. It is in this background that
Darshan Singh had sought special leave to appeal before us and leave came
to be granted by order dated 22.01.2010.
Case of the Prosecution:
2. The facts can be summed up in brief as follows:
The deceased, Amrik Kaur was married to Darshan Singh, the
appellant, some time in 1988. The marriage was arranged through Melo
Kaur (PW-3), the cousin sister of the deceased. The prosecution alleges that
their marital relationship was strained owing largely to the fact that Darshan
Singh had developed an illicit partnership with Rani Kaur (A2). Several
relatives had prevailed on the appellant to put an end to his relationship with
Rani Kaur, but to no avail. The illicit relationship between Darshan Singh
and Rani Kaur is said to have lasted for at least three years before the fateful
day. It is the case of the prosecution that on the intervening night of
18.05.1999 and 19.05.1999, Darshan Singh and Rani Kaur, with the motive
of eliminating the deceased, administered poison and intentionally caused
the death of Amrik Kaur.
3
3. On these allegations, Darshan Singh and Rani Kaur were prosecuted
for charges under Section 302 r/w Section 34 IPC. The Trial Court convicted
both the accused persons for the offence under Section 302 r/w Section 34
and sentenced them to undergo imprisonment for life.
Findings of the Trial Court and High Court:
4. The Trial Court has concluded that it was a case of homicide and not
suicide. It has found that the appellant had a strong motive to commit the
murder of his wife. It further held that the appellant and Rani Kaur were
present in the house on the intervening night of 18.05.1999 and 19.05.1999
and therefore, the burden lay on them to explain as to ‘ how the body of Amrik
Kaur who was alive on the night of 18.05.1999 turned into a corpse ’ the next
morning. The Court has completely disbelieved the theory of suicide sought
to be advanced on behalf of appellant. It was noted that merely because there
were no injuries on the body of the deceased, that by itself would not obviate
the possibility of forceful administration of the poisonous substance. On the
basis of the above circumstances taken together, the Trial Court held that the
prosecution has proved its case beyond reasonable doubt against the
appellant and Rani Kaur.
4
5. In appeal, the High Court has agreed with the findings of the Trial
Court in so far as the appellant is concerned and has acquitted Rani Kaur by
extending her the benefit of doubt. It has found that there is no other
evidence except the testimony of PW3 and PW4, to prove the presence of
Rani Kaur on the intervening night of 18.05.1999 and 19.05.1999 at the
appellant’s house.
ARGUMENTS OF MR. ABHIMANYU TEWARI, COUNSEL
APPEARING FOR APPELLANT:
6. PW3, Melo Kaur, is not a reliable witness. The presence of the
appellant, Darshan Singh, at the house on the intervening night of
18.05.1999 and 19.05.1999 is sought to be established based on her
testimony. She has made several improvements in her version, and her
testimony suffers from several contradictions, and therefore, it is not safe to
rely on such a witnesses’ uncorroborated testimony. It would be prejudicial
to the appellant to rely on only a part of her testimony and exclude the rest.
If her testimony is ignored in toto, there is no other evidence to establish the
key circumstance of appellant’s presence at the spot of crime.
6.1 That aluminium phosphide is rather impossible to administer in a
deceitful manner owing to its pungent smell and odour. No injury marks
have been found on the deceased, which further establishes that there could
not have been any forceful administration of the poison. Therefore, it is
5
submitted that it is nothing but a case of suicide, the driving force for which,
was the confrontation with Melo Kaur. It is the appellants’ case that Amrik
Kaur was having an illicit affair with Melo Kaur’s husband, Gurmel Singh
PW4, and embarrassed with her sister finding out, she self-administered the
poisonous substance and committed suicide. Counsel has submitted
judgments to support the proposition that aluminium phosphide has a
pungent smell similar to garlic.
6.2 Reliance has been placed on Jaipal V. State of Haryana – (2003) 1
SCC 169 wherein the Apex Court discussed the nature of aluminium
phosphide. The relevant paragraphs have been extracted below for
reference:
“16. According to Modi, symptoms and signs of poisoning by
aluminium phosphide are similar to poisoning by zinc phosphide
(p. 197, ibid.). The chief symptoms after the administration of zinc
phosphide are a vacant look, frequent vomiting with retching,
tremors and drowsiness followed by respiratory distress at death.
Zinc phosphide acts as a slow poison and is decomposed by
hydrochloric acid in the stomach with the liberation of phosphine
which acts as a respiratory poison. Being a very fine powder zinc
phosphide adheres firmly to the crypts in the mucous membrane
of the stomach, and a very small quantity only in the stomach even
after vomiting is sufficient to cause death by slow absorption.
17. Phosphine released from zinc phosphide (rat poison) and from
aluminium phosphide, is mainly used as a fumigant to control
insects and rodents in foodgrains and fields. Liberated from the
metal phosphides by the action of water or acids, gaseous
phosphine exerts more potent pesticidal action, for it penetrates
to all areas otherwise inaccessible for pesticide application.
Pathological findings from phosphine inhalation are pulmonary
hyperaemia and oedema. It causes both fatty degeneration and
necrosis of liver (p. 174, ibid.).
6
18. Our attention was invited, as was done in the High Court and
the trial court, to a paper entitled “Toxicology — Acute
Aluminium Phosphide Poisoning in Northern India” written by
Dr Mitra Basu and Prof. S.B. Siwach, Head, Department of
Medicine, Postgraduate Institute of Medical Sciences, Rohtak
and published in Current Medical Journal, Vol. I, No. 5, July
1995. The authenticity of this article has not been doubted by the
High Court nor questioned either in the High Court or in this
Court. The learned authors have noticed the aluminium
phosphide having emerged as a major health problem in northern
India when these cases first started coming in 1984 and hardly
any literature being available earlier on this malady. In
Postgraduate Institute of Medical Sciences, Rohtak about 2000
cases were reported which were all suicidal.
19. We may briefly sum up the opinion of the learned authors from
their published paper. Phosphine gas (active ingredient of ALP)
causes sudden cardiovascular collapse; most patients die of
shock, cardiac arrhythmia, acidosis and adult respiratory distress
syndrome (ARDS). Aluminium phosphide is available in the form
of chalky-white tablets. When these tablets are taken out of the
sealed container, they come in contact with atmospheric moisture
and the chemical reaction takes place liberating Phosphine gas
(PH3) which is the active ingredient of ALP. This gas is highly
toxic and effectively kills all insects and thus preserves the stored
grains. When these tablets are swallowed, the chemical reaction
is accelerated by the presence of hydrochloric acid in the stomach
and within minutes phosphine gas dissipates and spreads into the
whole body. The gas is highly toxic and damages almost every
organ but maximal damage is caused to heart and lungs. Sudden
cardiovascular collapse is the hallmark of acute poisoning.
Patients come with fast, thready or impalpable arterial pulses,
unrecordable or low blood pressure and icy-cold skin. Somehow
these patients remain conscious till the end and continue to pass
urine despite unrecordable blood pressure. Vomiting is a
prominent feature associated with epigastric burning sensation.
The patients will be smelling foul (garlic-like) from their breath
and vomitus. Many of them will die within a few hours. Those who
survive for some time will show elevated jugular venous pressure,
may develop tender hepatomegaly and still later adult respiratory
distress syndrome (ARDS), renal shutdown and in a very few
cases, toxic hepatic jaundice. The active ingredient of ALP is
phosphine gas which causes extensive tissue damage. A spot
clinical diagnosis is possible in majority of cases of ALP
poisoning. However, ALP on account of its very pungent smell
(which can drive out all inmates from the house if left open)
cannot be taken accidentally.”
7
6.3 It was also argued that the courts below have failed to give sufficient
weight to the evidence led on behalf of the defence, in particular, the
testimony of DW3 and DW4.
6.4 Lastly, it was argued that Rani Kaur (A2) having been extended
benefit of doubt, it was rather anomalous to exclude such benefit to A1- the
appellant, when the case of the prosecution was that both of them were
present at the scene of crime.
Arguments of Mr. Prateek Chaddha, learned counsel on behalf of State
of Punjab :
7. Melo Kaur was an illiterate person who cannot be expected to be
aware of the intricacies of law and cross examination and therefore, it was
rather natural for minor inconsistencies to creep into the testimony of such
a witness. The Trial Court has rightly appreciated her testimony by
excluding the uncorroborated parts from the corroborated parts of her
testimony. In that sense, the Trial Court has separated the chaff from the
grain, as is expected to be done when it has to appreciate the evidence of a
partly reliable and partly unreliable witness. Moreover, the accused himself
has never denied his presence at the scene of crime. In his statement recorded
under Section 313 of Cr.P.C., he has admitted his presence. This, coupled
8
with the testimony of PW3, 4 and 5, is sufficient to prove the presence of
the accused at the spot of crime.
7.1 The case rests on circumstantial evidence, the prosecution has
proved the circumstances from which an inference of guilt is sought to be
drawn, cogently and convincingly. The circumstances relied on include -–
(1) Motive; (2) Presence of the appellant at the scene of crime; (3) Cause of
Death: By Poisoning (4) Opportunity to administer poison; (5) Conduct (6)
False explanation in 313 Statement.
7.2 He has further relied on the principle laid down in Trimukh Maroti
1
Kirkan v. State of Maharashtra to contend that the degree of evidence
needed to prove the case resting on circumstantial evidence in the given facts
cannot be as high as is normally the case. In view of Section 106 of the
Evidence Act, the appellant was under a burden to explain the circumstances
leading to the death of the deceased. Merely remaining quiet or offering a
false explanation would provide an additional link in the chain of
circumstances to make it complete. Remaining quiet, or offering a false
explanation would therefore provide an additional link in the chain of
circumstances to make it complete. He has also sought to distinguish the
cases relied on behalf of the appellant.
1
(2006) 10 SCC 681
9
ANALYSIS AND FINDINGS:
8. We have heard the learned Counsel for the appellant and respondent
and perused the materials on record.
9. There is no eye-witness to the incident. The case of the prosecution
rests on circumstantial evidence. The normal approach 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 his innocence. [ See
2
Sharad Birdhichand Sarda v. State of Maharashtra ]
10. Let us, therefore, examine whether the prosecution had proved
beyond reasonable doubt, the entire chain of circumstances, not leaving any
link missing for the appellant to escape from the clutches of law. The
2
(1984) 4 SCC 116
10
circumstances which are said to have been proved on behalf of the
prosecution is as follows:
1. Motive
2. Presence at the spot
3. False explanation in 313 statement
4. Death by Poisoning – Doctor’s opinion on cause of death
5. Conduct of the Appellant
6. Opportunity to administer poison.
11. According to the case of the prosecution, the illicit relationship that
existed between Darshan Singh and Rani Kaur served as the key motive for
them to jointly eliminate the deceased. The fact that they were in an illicit
relationship has been sufficiently proved from the testimony of PW 2, PW 3
and PW 4. This circumstance, therefore, has been cogently established.
12. The most important circumstance, among all, must be the
circumstance of the appellant and Rani Kaur having been present in the
appellant’s house on the intervening night of 18.05.99 and 19.05.99 and they
having been seen leaving the house in the early hours of the day. For, the
proof of presence has the effect of triggering into operation, Section 106 of
the Evidence Act and the principle laid down in the case of Trimukh Maroti
Kirkan v. State of Maharashtra. Even the circumstance that the appellant
11
had the ‘opportunity’ to administer poison was strongly linked to aspect of
proving the presence of the appellant and Rani Kaur in the appellants house.
13. In Trimukh ’s case, it has been held:
i.“ 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 …………………… 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 ”
14. In Trimukh (supra) , this Court has pointed out that there are two
important consequences that play out when an offence is said to have taken
place in the privacy of a house, where the accused is said to have been
present. Firstly, the standard of proof expected to prove such a case based
on circumstantial evidence is lesser than other cases of circumstantial
evidence. Secondly, the appellant would be under a duty to explain as to the
circumstances that led to the death of the deceased. In that sense, there is a
limited shifting of the onus of proof. If he remains quiet or offers a false
12
explanation, then such a response would become an additional link in the
chain of circumstances.
15. Both the Courts below have in fact applied the principle referred to
in Trimukh’s case. Their presence having been held to be proved, the Court
relied on Section 106 of the Evidence Act and shifted the onus of proof on
the accused to explain the circumstances which led to the unnatural death of
the deceased.
16. Whereas the Trial Court found both the accused guilty, the High
Court has confirmed the order of conviction only against the appellant and
extended benefit of doubt to Rani Kaur. The appellant having failed to give
a proper and believable explanation was, in fact, used as an additional link
in the chain of circumstances. The proof of presence in that sense triggered
the two consequences as laid down in Trimukh’s case (supra)
17. In this case, the presence was sought to be proved by the prosecution
on the basis of the testimony of PW-3, PW-4, PW-5 and the statements of
the accused at the 313 stage. The Courts below had also relied on the
testimony of PW 3 and PW 4 to conclude that the appellant was present in
the house. Therefore, it becomes necessary to carefully evaluate this
circumstance, given the consequences that flow from proof of this
circumstance.
13
18. PW-3 has deposed that her husband, Gurmel Singh (PW-4), on his
return home from work around 8 pm on 18.05.99, had informed her that he
saw the appellant along with Rani Kaur present in the appellant’s house. He
further informed her that it would not be appropriate to visit their house at
that time since he anticipated the possibility of a flare up among the family
members. He told her that they could talk to the appellant in the morning.
PW-3 stated that she visited the house of the appellant in the morning at
around 4:45 am, only to find her sister lying dead. She states that she saw
the appellant and Rani Kaur present in the house. She further states that both
of them pushed her aside and left in a jeep, belonging to the appellant. She
then states that she called her husband (PW-4) to the spot.
19. In the cross examination of PW-3 on behalf of the appellant, several
omissions have been brought on record by drawing her attention to her
previous statement given to the police under Section 161 CrPC. For instance,
it has come out in the evidence that PW-3 had omitted to state in her Section
161 statement that: (a) her husband had informed her that he saw the
appellant and Rani Kaur in the appellant’s house when he was returning back
home from work around 8 pm; (b) she had seen the appellant and Rani Kaur
in the early hours on 19.05.99 in the appellant’s house and they pushed her
aside before escaping in a jeep. (c) her husband had advised her not to visit
14
the deceased in the night. It had been specifically suggested to her that she
was falsely deposing and that the appellant was being falsely implicated on
account of him having strained relations with PW-4, the husband of PW3.
20. In the cross examination of PW-3 on behalf of Rani Kaur, it was
elicited that PW-3 had personally witnessed the appellant and Rani Kaur
putting poison in the mouth of the deceased. This, according to PW-3, was
seen by her through the chinks of the door.
21. PW-4 has stated that he met the appellant and Rani Kaur on his way
home, while he was returning from work around 7.00 PM on 18.05.99. He
stated that both of them went to the appellant’s house. He informed his wife
that it would not be appropriate to visit their house at this time since there
was a possibility of a quarrel arising between Amrik Kaur and her husband,
the appellant, since he had brought Rani Kaur home. Instead, he asked her
to go and visit her sister on the next morning. In the morning, around 5.30
am, his wife left to visit her sister at the appellant’s house after serving tea
to him and his children. On having received a message from his wife, he set
about to reach the appellant’s house and found Amrik Kaur lying dead and
his wife, weeping and wailing.
22. Similarly, in the cross examination of PW-4, it has been brought on
record that PW-4 had omitted to state the following aspects in his statement
15
recorded under Section 161 Cr.P.C. before the police – (a) that PW-4 had
seen the appellant and Rani Kaur entering the house of the appellant in a
jeep; (b) PW-4 had told PW-3 not to visit the appellant’s house since they
were intoxicated and there was a strong possibility of some dispute arising.
(c) PW-4’s statement that PW-3 had left for the appellant’s house at 5.00 am
in the morning on 19.05.99 after serving him tea. It has been specifically
suggested to this witness that he had strained relations with the appellant,
and owing to this fact, he has falsely implicated the appellant. It was further
suggested that on account of the quarrel that occurred in the night on
18.05.99, the deceased had committed suicide by taking poison.
23. PW 5 is an independent witness having no relationship with any of
the persons involved, either as an accused or as witnesses, in this incident.
He stated that on the morning of 19.05.99, at about 6.00 am, he had gone to
answer the call of nature. At that time, he states that he saw the appellant and
Rani Kaur were going in a jeep to Hiro Kalan and that jeep was covered with
black cloth. He then returned to the bus stop and found a lot of persons
having gathered and there, he heard the news that the appellant had murdered
his wife.
24. PW-5’s deposition that he had heard from persons at the bus stop
that the appellant had murdered his wife, was an omission since he had not
stated as such in his statement before the police. It has been elicited from
16
him that the jeep came from behind and then passed by his side. It has been
further elicited that the black cloth which was used to cover the jeep was
opened on both sides.
25. In the face of the above evidence on record, can it be said that the
presence of the appellant and Rani Kaur in the appellant’s house in the
intervening night of 18.05.99 and 19.05.99, has been firmly and cogently
established? According to us, the answer must be in the negative. There are
several omissions that have been brought out in the cross examination of
PW-3 and PW-4, which seriously dent the credibility of their testimony.
26. If the PWs had failed to mention in their statements u/s 161 CrPC
about the involvement of an accused, their subsequent statement before
court during trial regarding involvement of that particular accused cannot be
relied upon. Prosecution cannot seek to prove a fact during trial through a
witness which such witness had not stated to police during investigation.
The evidence of that witness regarding the said improved fact is of no
significance. [See : (i) Rohtash Vs. State of Haryana, (2012) 6 SCC 589 (ii)
Sunil Kumar Shambhu Dayal Gupta Vs. State of Maharashtra, 2011 (72)
ACC 699 (SC). (iii) Rudrappa Ramappa Jainpur Vs. State of Karnataka,
(2004) 7 SCC 422 (iv) Vimal Suresh Kamble Vs. Chaluverapinake, (2003)
3 SCC 175]
17
27. Of course, PW-3 claims to be an illiterate witness and therefore, her
testimony must be interpreted in that light. We are cognizant that the
appreciation of evidence led by such a witness has to be treated differently
from other kinds of witnesses. It cannot be subjected to a hyper-technical
inquiry and much emphasis ought not to be given to imprecise details that
may have been brought out in the evidence. This Court has held that the
evidence of a rustic/illiterate witness must not be disregarded if there were
3
to be certain minor contradictions or inconsistencies in the deposition.
28. However, the testimony of PW-3 suffers not merely from technical
imperfections, there are glaring omissions and improvements that have been
brought out in the cross-examination, which cannot be attributed to the
illiteracy of the individual deposition. If there were minor contradictions and
inconsistencies, that could have been ignored since the recollection of exact
details as to location and time can be attributed to the lack of literacy.
However, such is not the case here. PW-3 had only heard from her husband
that the appellant and Rani Kaur were seen together in the appellant’s house
on 18.05.99. To that extent, it is merely hearsay. Moreover, PW-4 has
omitted to state this fact to PW3 in his statement before the police. He has
also omitted to state that he advised his wife (PW-3) against going to the
3
State of U.P. Vs. Chhoteylal, AIR 2011 SC 697 ;
Dimple Gupta (minor) Vs. Rajiv Gupta, AIR 2008 SC 239
18
appellant’s house in the night since there may arise a quarrel between all of
them. If these facts are ignored from consideration, we only wonder as to
why PW-3 would visit the house of the appellant in the wee hours of the
morning on 19.05.99. It seems quite unnatural for PW-3 to visit the house of
the appellant at 430 am in the morning without any reason. If PW-3 was
aware that the appellant and Rani Kaur were in an illicit relationship for a
sufficiently long duration, there was no reason to suspect all of a sudden that
the two of them would get together, administer poison and murder the
deceased on 19.05.1999, which fact, prompted her to visit the house of the
appellant at such odd hours in the morning. Both the Courts have failed to
take notice of the several significant omissions and improvements in the
evidence of PW 3 and PW 4.
29. Further, PW-5 is a chance witness. He was in his village, answering
the call of nature at 6 am, at which point he claimed to have seen the accused
persons going in a jeep. It was elicited in his cross examination that he had
a side-on view since he stated the jeep came from behind and he got a side-
on glimpse. The side-on view would have been only for a couple of seconds
at best, since they were travelling in a jeep. Therefore, it is not safe to rely
on this testimony solely to prove that the appellant was escaping along with
Rani Kaur after having murdered his wife.
19
30. The appellant had set up a defence that the deceased had committed
suicide. The Trial Court has disbelieved it on the premise that the appellant
and Rani Kaur were present in the house, and if the deceased were to have
committed suicide, it was but natural for the appellant to take her to the
hospital and inform concerned persons/authorities. However, we have come
to the finding above that the circumstance of appellant and Rani Kaur being
present in the house has not been convincingly proved beyond doubt.
Therefore, the reasoning given by the Trial Court loses its legs to stand on.
In any case, we believe that the appellant has raised a doubt in our minds as
regards his defence that the deceased had committed suicide. There appears
to be no dispute as to the fact that the death was caused by poisoning. The
doctor’s testimony on the basis of the chemical examiner’s report that the
cause of death was linked to aluminium phosphide poisoning remains
unchallenged. In fact, in his 313 statement, even the appellant states that the
deceased consumed poison (aluminum phosphide) and committed suicide.
In Jaipal’s case , this Court has considered the characteristic features of death
caused by poisoning through aluminum phosphide. Review of scholarly
literature and research papers suggests that the nature of this substance
(aluminum phosphide) is such that it is not conducive for deceitful
administration since it carries a pungent garlic-like odour, which cannot go
unmissed. It was suspected that the substance was mixed in tea and served
20
to the deceased since 200ml brownish liquid was found in her stomach as
per the PMR. We find it doubtful that the deceased would have been made
to consume tea deceitfully given the nature of the substance. Forceful
administration of this substance also seems doubtful since there are no injury
marks suggestive of a scuffle. In light of the evidence on record, even
assuming for a moment that the appellant and Rani Kaur were present, it still
cannot be said with certainty that it was a case of homicide and not suicide.
The main principle to be satisfied in a case of conviction based on
circumstantial evidence is that the proved circumstances must be complete
and incapable of explanation of any other hypothesis than that of the guilt of
the accused but should be inconsistent with his innocence- in other words,
the circumstances should exclude every possible hypothesis except the one
to be proved. In this case, it cannot be said that the proved circumstances,
even if presence was proved, taken with other circumstances would lead to
an unfailing conclusion that the appellant and Rani Kaur were guilty of
murdering his wife. There was alive a strong hypothesis that the deceased
had committed suicide, which explanation was led by the appellant in his
statement under Section 313 CrPC, and it is sufficient to create a doubt in
our minds.
31. This Court has held that the standard of proof to be met by an
accused in support of the defence taken by him under Section 313 of Code
21
of Criminal Procedure is not beyond all reasonable doubt, as such, a burden
lies on the prosecution to prove the charge. The accused has merely to create
a doubt and it is for the prosecution then to establish beyond reasonable
doubt that no benefit can flow from the same to the accused. [See: Pramila
vs State of Uttar Pradesh 2021 SCC OnLine SC 711]
32. Learned Counsel for the respondent-State has argued that no specific
plea of alibi was taken in the statement of the appellant recorded under
Section 313 CrPC. In fact, it is submitted that there is an implicit admission
as to his presence in the house. It is too well settled that the statement of an
accused under Section 313 CrPC is no ‘evidence’ because, firstly , it is not
on oath and, secondly , the other party i.e. the prosecution does not get an
opportunity to cross examine the accused . [ Sidhartha Vashisht Vs. State of
NCT of Delhi, AIR 2010 SC 2352 ]
33. It is trite law that the statement recorded u/s. 313 CrPC cannot form
the sole basis of conviction. Therefore, the presence of the appellant cannot
be found solely based on his statement, notwithstanding the lack of
independent evidence led by the prosecution. Further, this Court has
previously considered the consequences when a particular defence plea was
not taken by accused u/s 313 CrPC and held that mere omission to take a
specific plea by accused when examined u/s 313 CrPC, is not enough to
22
denude him of his right if the same can be made out otherwise. See:
Periasami Vs. State of Tamil Nadu , (1996) 6 SCC 457
34. The case of the prosecution has, from the very start, been that the
appellant was seen jointly along with Rani Kaur in the appellant’s house on
18.05.99 and they were seen leaving the house together on 19.05.99. They
were both tried together on charges of having administered poison and
killing the deceased on the intervening night of 18.05.99 & 19.05.99.
Though the Trial Court has convicted both of them under Section 302, the
High Court has extended the benefit of doubt to Rani Kaur and acquitted her
of all criminal charges. According to the High Court, ‘ apart from the
evidence of Melo Kaur PW3 and Gurmel Singh PW4, there is no other
evidence to show that she was present in the house on the fateful night’.
However, even though it was the very same evidence that was sought to be
used to prove the presence of the appellant in the house, the benefit of doubt
has not been similarly extended to him. The High Court reasoned that the
appellant, being the husband, it was only natural for him to be present in the
house.
35. It is important to notice that the respondent-State has not challenged
the acquittal of Rani Kaur before this Court. It has accepted the verdict and
therefore, the acquittal has reached finality. The State cannot on the one hand
23
accept the verdict of the Court that the presence of Rani Kaur along with the
appellant is doubtful and at the same time, maintain its case that the two of
them were jointly present, committed the offence together and escaped
together.
36. According to us, if the evidence of PW 3 and PW 4 was not sufficient
to prove presence of Rani Kaur at the appellant’s house, as a natural
corollary, such evidence cannot be relied on to conclude that the appellant
was present in the house. The manner in which the High Court has sought to
distinguish the case of the appellant from Rani Kaur is perverse and does not
seem to impress us. The case of the prosecution has consistently been that
the accused persons were seen present together in the house on the night of
18.05.99 and seen leaving together in the wee hours of the next morning. In
fact, PW 5 has deposed that he had seen them together in the jeep travelling
towards Hiro Kurd. If the presence of Rani Kaur in the house on the date of
the alleged incident is doubtful, then, the testimony of PW 5 that he had seen
her along with the appellant in the jeep, will also lose its strength.
37. Seen in this background, we need not go further and consider the
evidence qua other circumstances sought to be proved by the prosecution
since the failure to prove a single circumstance cogently can cause a snap in
the chain of circumstances. There cannot be a gap in the chain of
circumstances. When the conviction is to be based on circumstantial
24
evidence solely, then there should not be any snap in the chain of
circumstances. If there is a snap in the chain, the accused is entitled to benefit
of doubt. If some of the circumstances in the chain can be explained by any
other reasonable hypothesis, then also the accused is entitled to the benefit
of doubt. [See: Bhimsingh Vs. State of Uttarakhand , (2015) 4 SCC 281.]
38. Therefore, we allow this appeal and set aside the concurrent findings
of conviction.
……..……………………….J.
(B. R. Gavai)
..………..……………………J.
(Pamidighantam Sri Narasimha)
………………………………J.
(Aravind Kumar)
New Delhi,
January 04, 2024