PETITIONER:
SHANKARLAL GYARASILAL DIXIT
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT17/12/1980
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
SEN, A.P. (J)
ISLAM, BAHARUL (J)
CITATION:
1981 AIR 765 1981 SCR (2) 384
1981 SCC (2) 35
CITATOR INFO :
R 1984 SC1622 (156,159,161,173)
ACT:
Evidence-Circumstantial evidence-Tests to be applied
while evaluating circumstantial evidence-Falsity of defence-
If could take the place of proof of facts- “Shadow of doubt”
meaning of.
HEADNOTE:
The prosecution alleged that when the deceased girl did
not return home for quite some time from play her mother,
alongwith two neighbouring women went in search of her.
Believing that she might be in the appellant’s house. they
repeatedly knocked at the door which was locked from inside,
but there was no response from within. At that moment P.W. 5
who lived next to the appellant’s house, arrived on the
scene. P.W. 5 climbed over the roof of his house, entered
the appellant’s house through the open court-yard and opened
the front door. On entering the house, according to the
prosecution, the three ladies saw the appellant lying on a
cot in the court-yard with a cover pulled upto his face and
the dead body of the child in the bath room, wrapped in a
blanket. The mother lifted her dead child threw the blanket
and ran home with the dead body. The girl’s underpant was
missing.
The dead child had injuries on her person and her
private parts were swollen. Postmortem examination of the
dead body showed that the vagina of the child was lacerated
and her hymen ruptured and that death occurred as a result
of asphyxia. Examination of the appellant showed that there
was a mark of dry semen on his underpant and marks of
bruises over his left thigh. There was no smegma around the
corona glandis and there was a small abrasion over the base
of his glans-penis which had a bluish discolouration on it.
The appellant pleaded that he knew nothing of the crime
and that he was falsely implicated in the murder.
The appellant was convicted and sentenced for offences
under sections 376 and 302 I.P.C. by the trial court and the
conviction and sentence had been confirmed by the High
Court.
Allowing the appeal,
^
HELD : In a case of circumstantial evidence it is
necessary for the Court to find whether the circumstances on
which the prosecution relies are established by satisfactory
evidence, often described as clear and cogent and whether
the circumstances are of such a nature as to exclude every
other hypothesis save the one that the appellant is guilty
of the offences of which he is charged. In other words, the
circumstances have to be of such a nature as to be
consistent with the sole hypothesis that the accused is
guilty of the crime imputed to him. [390 B-C]
It is not necessary that in every case depending on
circumstantial evidence, the whole of the law governing
cases of circumstantial evidence should be set
385
out in the judgment. Legal principles are not magic
incantations. Their importance lies more in their
application to a given set of facts than in their recital in
the judgment. The simple expectation is that the judgment
must show that the finding of guilt if any has been reached
after a proper and careful evaluation of circumstances in
order to determine whether they are compatible with any
other reasonable hypothesis. [395D-E]
In the instant case the prosecution story that the
appellant was not on good terms with his mother, brothers
and wife, that he was living alone in the house and that on
the day of occurrence the young school boys who were his
tenants were not in the house and that, therefore, he was
all alone is proved. That P.W. 5 climbed over the roof of
his house, entered the appellant’s house and opened the
front door is also proved. [390H]
But it is impossible to say that the appellant was in
the house when P.W. 5 and the three ladies entered the
house. None of the four persons made any attempt to elicit
any information from the appellant about the presence of the
dead body in the bath room though it was alleged that
everyone saw him lying on a cot in the court yard. Even if
the ladies would not exchange a single word with him, P.W. 5
would have instinctively enquired from him as to how the
dead body of the child was lying in the bath room. P.W. 5
categorically stated that he had no talk with the appellant
at all. His claim that he called out to the appellant to
open the door but that he declined to do so was a clear
improvement over what he narrated to the police immediately
after the incident. [392A-H]
Secondly the girl’s father did not inform the police,
either when he went to the police station for the first time
or when he went there a second time to record the first
information report, that the appellant was present in the
house when the ladies entered it. In the statement made to
the police immediately after the incident all that he stated
was that the girl had died a mysterious death. The
disclosure made by him to police in his complaint leaves no
manner of doubt that the appellant was not present in his
house at the time of the recovery of the dead body. In his
cross-examination he admitted that his wife did not tell him
that it was the appellant who killed their daughter and that
the particular portion in the F.I.R. in which it was stated
that his wife had told him that their daughter was killed by
the appellant was not correctly recorded. [393A-B]
Once the crucial link in the chain of circumstances
that the appellant was in the house at the time when the
dead body was discovered snaps the entire case would have to
rest on slender tit bits. [394B]
The course of contemporaneous and subsequent events
strengthens the inference that the appellant was not in the
house when the dead body was discovered. The police
inspector who visited the house for making the panchnama of
the scene of the offence did not state whether the house was
open or locked when he and the punchas entered it. If the
appellant’s complicity in the crime was suspected, attempts
would have been made to arrest him immediately. It is not
known as to who arrested him and from where and in what
circumstances. All that was stated was that the appellant
was produced before him in the course of the day. [393D-F]
It is improbable that the appellant would have kept the
underpant of the child under his pillow while escaping from
the house. The discovery of a blood
386
stain on the appellant’s pant and of a dry stain of semen on
his underpant are circumstances far too feeble to establish
that the appellant raped or murdered the girl. Absence of
smegma around the appellant’s corona glandis would not
necessarily establish that he had a recent intercourse nor
do the other circumstances like bruises on the thigh
establish his involvement in the crime. If the girl was
raped she was raped without resistance. [394E-F]
The argument of the prosecution that the total
ignorance of the incident pleaded by the appellant is false
and would itself furnish a link in the chain of caution is
without substance because falsity of defence cannot take the
place of proof of facts which the prosecution has to
establish in order to succeed. A false plea can at best be
considered as an additional circumstance if other
circumstances point unfailingly to the guilt of the accused.
[395A-B]
The High Court was in error in saying that what the
Court has to consider is whether the cumulative effect of
the circumstances establishes the guilt of the accused
beyond the “shadow of doubt”. “Shadow of doubt” even in
cases which depend on direct evidence is shadow of
“reasonable’ doubt. In its practical application the test
which requires the exclusion of other alternative hypotheses
is far more rigorous than the test of proof beyond
reasonable doubt. Secondly, the High Court’s view that such
a person as the appellant could not be an asset to his wife
and children and for that reason should be awarded the
sentence of death is not correct because unfaithful
husbands, unchaste wives and unruly children are not for
that reason to be sentenced to death if they commit murders
unconnected with the state of their equation with their
family and friends. The passing of the sentence of death
must elicit the greatest concern and solicitude of the Judge
because, that is one sentence which cannot be recalled.
[395F-G, 396H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
766 of 1980.
Appeal by Special Leave from the Judgment and Order
dated 27/ 28-2-80 of the Bombay High Court (Nagpur Bench) in
Criminal Appeal No. 331/79 and confirmation case No. 3 of
1979.
M. R. Daga, R. A. Gupta and N. P. Paliwal for the
Appellant.
H. R. Khanna and M. N. Shroff, for the Respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, C. J. The appellant Shankarlal Gyarasilal
Dixit who is 30 years of age, was convicted by the learned
Additional Sessions Judge, Akola, for offences under
sections 376 and 302 of the Indian Penal Code on the charge
that on December 10, 1978 he raped a five year old girl
called Sunita and thereafter committed her murder. He was
sentenced to rigorous imprisonment for 7 years for the
offence of rape and to death for the offence of murder. The
order of conviction and sentence having been confirmed by a
Division Bench of the
387
Bombay High Court by its judgment dated February 27-28,
1980, he has filed this appeal by special leave.
The appellant lives in a locality called Marwadipura in
the town of Karanja, District Akola. His house is situated
near a temple called Gopal Mandir, and a little beyond the
temple is a public well. Ramrao Wagh, the father of the
deceased Sunita, used to reside in a house near about the
well.
On December 10, 1978 at about 10-30 a.m., Sunita’s
mother Renukabai, went to the well for fetching water.
Sunita accompanied her. Renukabai returned after a little
while but Sunita, who was playing with some children, stayed
back. She did not come home for quite some time and feeling
concerned, Renukabai went in search of her. Unable to find
the girl, she went back to her house and told her
neighbours, Shilabai Deo and Shobhabai Waghode, that Sunita
was missing. The three ladies thereafter went in search of
Sunita. Believing that she might be in the appellant’s
house, they knocked at his door repeatedly. The door was
bolted from inside but there was no response from within. As
the ladies were running out of their guesses and patience, a
teacher called Shrinarayan Sharma, who lived in a house next
to the appellant’s, arrived on the scene. Sharma climbed
over the roof of his house, entered the appellant’s house
through an open courtyard and opened the front door. The
three ladies thereafter entered the house when, it is
alleged, they saw the appellant sleeping on a cot in the
court-yard, with a cover pulled upto his face. Sunita was
lying still and motionless in the bath-room, wrapped in a
blanket. Renukabai lifted her dead child, threw the blanket
and ran home. Sunita’s underpant was missing.
Soon thereafter, Renukabai’s husband Ramrao Wagh
returned from the bazar at about 12-45 p.m., and learned
from her that Sunita’s dead body was found in the
appellant’s house. Sunita had injuries on her person and her
private parts were swollen. Ramrao went to the police
station and informed the police of the mysterious death of
his daughter. He returned to his house with the police and
after about half an hour, he went again to the police
station and lodged the First Information Report (Exhibit
11), on the basis of which offences were registered against
the appellant under sections 376 and 302 of the Penal Code.
P.S.I. Ramdas Katke gave directions for the arrest of
the appellant, held an inquest on the dead body of Sunita,
sent the dead body for post-mortem examination and went to
the appellant’s house. From there, he seized a blood-stained
tile of the flooring of a room and a blood-stained blanket
which was lying in the bath-room. There was a
388
cot in the court-yard of the house and under a pillow, which
was lying on that cot, was found a child’s underpant. That
too was seized.
The appellant was thereafter arrested and on being
produced before the investigating officer, he was sent for
medical examination.
Dr. S. J. Santani, Assistant Surgeon of the Karanja
Municipal Hospital, who performed the post-mortem
examination on the dead body of Sunita found six external
injuries on her person. Her vagina was lacerated and her
hymen was ruptured. From these symptoms Dr. Santani
concluded that the girl was raped. From the other injuries,
he concluded that she died of asphyxia, probably due to
tracheal compression.
Dr. Santani examined the appellant on the same day at
9-00 p.m. The appellant had put on two full-pants, one on
top of the other. His underpant was suspected to bear the
mark of dried semen. There were marks of bruises over his
left thigh, there was no smegma around the corona glandis
and there was a small abrasion over the base of his glans-
penis which had a bluish discolouration on it.
The defence of the appellant was one of simple denial.
He stated that he was falsely implicated in the case at the
instance of his brother, mother and his neighbour
Shrinarayan Sharma.
There can be no doubt that the deceased Sunita died a
homicidal death. The post-mortem report prepared by Dr.
Santani shows that she had a contusion over the left cheek,
a contusion with soft red bruise and abrasions over the
whole of the anterior aspect of the neck, small bruises and
abrasions over the lips and mouth, an abrasion over the
chest, an abrasion over the right shoulder and an incised
wound behind the right ear, below the mastoid process. These
injuries, according to Dr. Santani, were sufficient in the
ordinary course of nature to cause death.
There is also no reason to doubt that Sunita was raped
or at least attempted to be raped before being murdered. The
evidence of Dr. Santani shows that her vagina was lacerated
and her hymen was ruptured. These are strong indications of
her being subjected to a sexual assault. The inquest
panchanama shows that her vagina was swollen and a whitish
fluid and blood were coming out of it. The evidence of
Renukabai and Shilabai that Sunita’s underpant was missing
points in the same direction.
The important question for determination is whether the
appellant can be held guilty for either or both of these
offences. There is no direct evidence, in the sense of an
eye-witness account, to connect the
389
appellant with the crime. The prosecution, however, relies
on the following circumstances in order to establish the
charges of rape and murder levelled against him :
(1) The dead body of Sunita was found in the house of
the appellant;
(2) The appellant was residing in the house all alone
at the relevant time;
(3) Renukabai (PW 2), Shilabai (PW 3) and Shobhabai
knocked at the door of the appellant several times
and though the door was bolted from inside, there
was no response from within;
(4) Shrinarayan Sharma (PW 5), a next-door neighbour,
climbed over the roof of his house and seeing that
the appellant was sleeping on a cot in the court-
yard, he called out for him. On hearing the call,
the appellant turned his side and said that he
would not open the door;
(5) Shrinarayan Sharma entered the appellant’s house
and opened the door whereupon Renukabai, Shilabai
and Shobhabai went in. They saw the dead body of
Sunita lying in a bath-room and the appellant
sleeping on a cot in the courtyard of the house;
(6) At the time when Sharma and the three ladies
entered the house, no other person apart from the
appellant was in the house;
(7) In spite of the all-round commotion and the
discovery of a dead body from his house, the
appellant continued to lie unconcerned on the cot.
He expressed no surprise, indeed no reaction at
all; nor did he challenge or ask any of the four
“intruders” as to why one of them entered his
house from the roof and the others rushed in to
look out for something;
(8) Sunita’s underpant was later found under a pillow
which was lying on the cot on which the appellant
was sleeping;
(9) A human blood-stain of B Group was found on the
appellant’s pant. Sunita’s blood belonged to B
Group;
(10) A stain of semen was found on the underpant of the
appellant;
(11) There was no smegma around the appellant’s corona
glandis; there was a small abrasion over the base
of his
390
glans penis which had a bluish discolouration; and
there were bruises over his right thigh; and
(12) The plea of the appellant that he knew nothing of
the crime and that he was involved falsely at the
instance of his mother, brother and the neighbour
Sharma is patently false.
Since this is a case of circumstantial evidence, it is
necessary to find whether the circumstances on which the
prosecution relies are established by satisfactory evidence,
often described as ‘clear and cogent’ and secondly, whether
the circumstances are of such a nature as to exclude every
other hypothesis save the one that the appellant is guilty
of the offences of which he is charged. In other words, the
circumstances have to be of such a nature as to be
consistent with the sole hypothesis that the accused is
guilty of the crime imputed to him.
There is credible evidence in support of the first
circumstance out of the 12 circumstances enumerated above.
The evidence of Renukabai (PW 2), Shilabai (PW 3) and
Shrinarayan Sharma (PW 5) proves that when they entered the
appellant’s house they saw the dead body of Sunita lying in
a bath-room of the house. The dead body was wrapped in a
blanket which Renukabai, the mother of Sunita, discarded
while removing Sunita to her own house. The blanket, which
bore a few stains of human blood was seized by the police
from the appellant’s house when they made a panchanama of
the scene of offence.
As regards the second circumstance, the evidence of
Navalkishore Dixit (PW 8), who is the younger brother of the
appellant, shows that after the death of their father on May
1,1978, the appellant started picking up quarrels with the
family members, trying to screw money from them for his
vices. He beat Navalkishore on November 30 and on December 7
he assaulted their mother. On December 8, Navalkishore left
the house with the mother and they went to live with a
person called Balkisan Banga. Thus, the only two other
members of the family who used to live in the house along
with the appellant had left the house two days before the
incident. The appellant’s wife and their children had
already started residing separately from him in the house of
the wife’s father in the same town of Karanja.
A few young village boys who were residing at Karanja
for their schooling were occupying a part of the appellant’s
house as his tenants. But the evidence of Shilabai (PW 3)
who was a tenant of the appellant in another part of the
house, shows that the boys had gone to their village,
Dapura, over the week-end. The incident happened
391
on December 10, 1978 which was a Sunday. Thus, there is
enough evidence to show that the appellant was living by
himself in his house on the date of the incident. The other
members of his family had virtually deserted him and his
school-boy tenants had gone to their village which was a
short distance away from Karanja.
The evidence as regards the third circumstance may also
safely be accepted. Renukabai (PW 2) and Shilabai (PW 3)
knocked at the appellant’s door repeatedly but the door was
bolted from inside and there was no response to their
request that the door be opened. Plainly, the reason why
Shrinarayan Sharma (PW 5) had to climb over the roof of his
house for the purpose of entering the court-yard of the
appellant’s house was that the ladies were unable to make
any headway.
A part of the fourth circumstance is easy to accept as
proved because there can be no doubt that Shrinarayan Sharma
climbed over the roof of his adjoining house and entered the
appellant’s house. Shrinarayan Sharma is a cousin of the
appellant and his testimony on this part of the case accords
with the broad probabilities of human affairs.
But though it is true that Shrinarayan Sharma climbed
over the roof of his house for the purpose of entering the
appellant’s house, it seems to us impossible to accept his
claim that he saw the appellant sleeping on a cot in the
court-yard, that he called out for him and that on hearing
the call, the appellant merely turned his side and said that
he will not open the door. That takes us to the
consideration of what we consider to be the most important
link in the chain of circumstances implicating the
appellant. The focal point of the case is that the appellant
was present in his house while the dead body of Sunita was
lying in the bath-room. A part of circumstance (4) and the
5th circumstance relate to the question as to whether the
appellant was sleeping on a cot in the court-yard of his
house whilst the dead body of Sunita was lying in the bath-
room.
There are several reasons which make it impossible to
believe that the appellant was in the house when Shrinarayan
Sharma and the three ladies found the dead body of Sunita
after entering the house. It is incredible that if
Shrinarayan Sharma and the ladies saw the appellant in the
house, they would not exchange a single word with him. The
dead body was lying close-by in a bath-room and any normal
human being would have instinctively inquired of the
appellant as to how it was that the dead body was lying in
his house. None of the four persons who entered the
appellant’s house made any attempt whatsoever to elicit any
information from him as to how Sunita came to
392
be lying dead in the bath-room. It is alleged that everyone
saw the appellant sleeping on a cot in the court-yard, but
it is strange that none talked to him at all.
One can understand the ladies not having the courage to
talk to the appellant. But it is difficult to believe that
Shrinarayan Sharma, a forty-five-year old school teacher,
could also not dare so much as to ask the appellant, without
making any accusation against him, as to how the dead body
of the girl came to be in the bath-room. Shrinarayan Sharma
has made a categorical admission in his evidence that he had
no talk with the appellant at all. In fact, as stated
earlier, the claim of Shrinarayan Sharma that he called out
to the appellant and that the appellant said that he would
not open the door, seems to us a clear improvement over what
he narrated to the police immediately after the incident. He
did not tell the police anything of the kind. When his
attention was drawn to this significant omission, his
explanation was that he could not say why the police did not
record that part of his statement. We have no doubt that
Shrinarayan Sharma did not tell the police during the course
of his statement, which was recorded immediately after the
incident, that he called out for the appellant and that the
appellant stated that he would not open the door. This was
far too important a happening which the witness would have
failed to disclose to the police.
Another reason for rejecting the case of the
prosecution that the appellant was present in the house when
the dead body of Sunita was discovered is that when Ramrao
Wagh, the father of Sunita, returned to his house from the
bazzar at about 12.30 p.m., he was neither informed by his
wife Renukabai nor by any other person that the appellant
was present in the house when Renukabai brought back the
dead body of Sunita from the appellant’s house. The admitted
sequence of events in this behalf has an important bearing
on this central theme of the case. Ramrao Wagh went to his
house from the bazzar and in pursuance of a disclosure made
to him by his wife Renukabai, he straightaway went to the
police station. The only statement which he made at the
police station was that his daughter Sunita had died a
mysterious death. Nothing at all was said by him regarding
the presence of the appellant in the house at the time when
the dead body of Sunita was discovered. The statement made
by Ramrao Wagh to the police was evidently not reduced to
writing, but it is clear that Ramrao went back to the house
along with the police officers. He went again to the police
station, when the First Information Report, Exhibit 11, was
recorded. It is surprising that even in the FIR, Ramrao Wagh
did not say that the appellant was present in the house when
Renukabai
393
and the other persons entered the house and when the dead
body of Sunita was discovered. All that Ramrao stated in the
FIR was that the appellant had killed his daughter in order
that she should not cry while she was being raped. Surely,
the FIR was recorded after Ramrao had learnt of the incident
from his wife and a few others including Shrinarayan Sharma,
Shilabai and Shobhabai. The disclosure made by Ramrao to the
police in his complaint leaves no manner of doubt that the
appellant was not present in his house at the time when
Sunita’s dead body was discovered.
The FIR contains a statement that Renukabai had told
Ramrao that the appellant had killed Sunita. Ramrao admitted
in his cross-examination that Renukabai did not tell him
anything of the sort and that the particular portion of the
FIR in which it is stated that Renukabai had told him that
Sunita was killed by Shankarlal was not correctly recorded.
The up-shot of the matter is that when the FIR was recorded,
no one thought that the appellant was responsible for the
violence which was done to Sunita.
The course of contemporaneous and subsequent events
strengthens the inference that the appellant was not in the
house when the dead body of Sunita was discovered. Ramrao
went to the police station not once but twice, and it is
reasonable to expect that if the appellant’s complicity in
the crime was stated or suspected, attempts would have been
made immediately to arrest him. When PSI Katke went to the
appellant’s house for making the panchanama of the scene of
offence, the appellant was evidently not in the house.
According to PSI Katke, instructions were given by him for
the arrest of the appellant. But surprisingly, there is not
one word on the record to show as to who arrested the
appellant and from where. All that the Investigating Officer
has stated in his evidence is that during the course of the
day the appellant was produced before him. This passive-
voice statement does not inspire confidence.
The up-shot of the matter is that Shrinarayan Sharma
did not tell the police that he called out the appellant or
that the appellant replied that he will not open the door.
Secondly, Renukabai did not tell her husband Ramrao that
when she entered the house of the appellant and found the
dead body of Sunita in the bath-room, the appellant was
present in the house. Thirdly, none of the large group of
persons who were present in the house of Ramrao disclosed,
what was certainly the most significant circumstance, that
the appellant was sleeping in the court-yard while the dead
body was lying in the bath-room of his house. Finally, no
attempt was made immediately after the FIR was lodged to
have the appellant arrested and there is no
394
evidence on the point as to who arrested him, from where,
and in what circumstances.
As we have stated earlier, the crucial link in the
chain of circumstances is the presence of the appellant in
his house at the time when the dead body of Sunita was
discovered. Once that link snaps, the entire case would have
to rest on slender tit-bits here and there. This discussion
disposes of the second part of the 4th circumstance part of
the 5th circumstance and circumstances (6) and (7).
The discovery of Sunita’s under-pant, which is the 8th
circumstance, is also enveloped in suspicion. At the time
when the under pant was discovered, the appellant was not in
the house. PSI Katke has not stated in his evidence as to
whether the appellant’s house was open or locked when he and
the panchas entered it. It is also difficult to believe that
the appellant would keep the under-pant under his pillow
while making good his escape from the house after the dead
body of Sunita was taken away. We are inclined to the view
that Sunita’s under-pant was placed under the pillow as
a part of the scheme to involve the appellant, first by
fixing that he was sleeping on the cot at the crucial time
and then by showing that the under-pant of the girl was
found under the very pillow which was lying on the cot on
which the appellant was sleeping.
The discovery of a blood stain of the ‘B’ Group
measuring 0.5 cm. in diameter on the appellant’s pant and of
a dried stain of semen on his under-pant are circumstances
far too feeble to establish that the appellant raped or
murdered Sunita. ‘B’ Group is not an uncommon group of blood
and no effort was made to exclude the possibility that the
blood of the appellant belonged to the same group. As
regards the dried stain of semen on the appellant’s under-
pant, he was a grown up man of 30 years and no compelling
inference can arise that the stain was caused during the
course of the sexual assault committed by him on the girl.
It is then said that there was no smegma around the
appellant’s corona glandis. That cannot by itself prove that
he had sexual intercourse. The presence of smegma may
perhaps exclude the possibility of recent sexual intercourse
but its absence will not necessarily establish that the
person has had a recent intercourse. A small abrasion over
the base of the glans-penis and its bluish discolouration
are also inconclusive circumstances. Nor indeed can the
bruises on the appellant’s thigh establish his involvement
in the crime. If the girl was raped, she was raped without
resistance. She was five years of age.
The last circumstance relied on by the prosecution is
that the total ignorance of the incident pleaded by the
appellant is false, and
395
would itself furnish a link in the chain of causation. We
have come to the conclusion that the appellant was not
present in the house at the time when Sunita’s dead body was
discovered. That makes it impossible to hold that the
appellant’s plea is false. Besides, falsity of defence
cannot take the place of proof of facts which the
prosecution has to establish in order to succeed. A false
plea can at best be considered as an additional
circumstance, if other circumstances point unfailingly to
the guilt of the accused.
It causes us some surprise that the learned Additional
Sessions Judge, Akola, who tried the case, has not shown any
awareness of the fundamental principle which governs cases
dependent solely on circumstantial evidence. Nowhere in his
judgment has the learned Judge alluded, directly or
indirectly, to the principle that in a case of
circumstantial evidence, the circumstances on which the
prosecution relies must be consistent with the sole
hypothesis of the guilt of the accused. It is not to be
expected that in every case depending on circumstantial
evidence the whole of the law governing cases of
circumstantial evidence should be set out in the judgment.
Legal principles are not magic incantations and their
importance lies more in their application to a given set of
facts than in their recital in the judgment. The simple
expectation is that the judgment must show that the finding
of guilt, if any, has been reached after a proper and
careful evaluation of circumstances in order to determine
whether they are compatible with any other reasonable
hypothesis.
The High Court, it must be said, has referred to the
recent decisions of this Court in Mahmood v. State of Uttar
Pradesh and Chandmal v. State of Rajasthan in which the rule
governing cases of circumstantial evidence is reiterated.
But, while formulating its own view the High Court, with
respect, fell into an error in stating the true legal
position by saying that what the Court has to consider is
whether the cumulative effect of the circumstances
establishes the guilt of the accused beyond the “shadow of
doubt”. In the first place, ‘shadow of doubt’, even in cases
which depend on direct evidence is shadow of “reasonable”
doubt. Secondly, in its practical application, the test
which requires the exclusion of other alternative hypothesis
is far more rigorous than the test of proof beyond
reasonable doubt.
Our judgment will raise a legitimate query: If the
appellant was not present in his house at the material time,
why then did so many people conspire to involve him falsely
? The answer to such questions
396
is not always easy to give in criminal cases. Different
motives operate on the minds of different persons in the
making of unfounded accusations. Besides, human nature is
too willing, when faced with brutal crimes, to spin stories
out of strong suspicions. In the instant case. the dead body
of a tender girl, raped and throttled, was found in the
appellant’s house and, instinctively, everyone drew the
inference that the appellant must have committed the crime.
No one would pause to consider why the appellant would throw
the dead body in his own house, why would he continue to
sleep a few feet away from it and whether his house was not
easily accessible to all and sundry, as shown by the
resourceful Shrinarayan Sharma. No one would even care to
consider why the appellant’s name was not mentioned to the
police until quite late. These are questions for the Court
to consider.
The folks of Karanja had a grouse against the
appellant. He had made a nuisance of himself to his family
and friends, neighbours and tenants. The small world of
Karanja was up in arms against him. He had assaulted his
mother and brother a few days before the incident. He had a
quarrel with Shilabai, his tenant, on the very day of the
incident. He was an idler and had no means of livelihood.
The description of his clothes at the time of his arrest is
an eloquent commentary on the way of his life. He was
wearing two full pants, one on top of another, not because
he had one too many to wear but because, one of the two
pants was torn at awkward places and he had to hide his
shame. It was torn on both the hips as well as the centre.
The left leg of the pant was torn over two feet and the
right leg over half a foot. The shirt on his person was torn
all over. The right arm of the shirt was hanging
precariously by the rest of the torn portion of his shirt.
The Karanja community must have heaved a sigh of relief that
a person who was so good-for-nothing was ultimately in the
hands of law. Such people have no partisans. But that does
not mean that justice can be denied to them.
We may mention in passing, though in the view which we
are taking it is not relevant, that while confirming the
sentence of death imposed on the appellant by the Sessions
Court, the High Court even took into consideration the
appellant’s relations with the members of his family. After
mentioning that he had beaten his mother and brother and
that his wife was living separately from him, the High Court
concluded:
“In our opinion, such a person could neither be an
asset to his wife and children nor entitled to live in
the society.”
Unfaithful husbands, unchaste wives and unruly children are
not for that reason to be sentenced to death if they commit
murders uncon-
397
nected with the state of their equation with their family
and friends. The passing of the sentence of death must
elicit the greatest concern and solicitude of the Judge
because, that is one sentence which cannot be recalled.
For reasons aforesaid, we allow the appeal and set
aside the judgments of the High Court and the Sessions
Court. The sentence of death as also the sentence of seven
years’ imprisonment imposed upon the appellant is set aside.
We acquit the appellant and direct that he shall be
released.
P.B.R. Appeal allowed.
398