Subhash vs State Of U.P.
2018 Latest Caselaw 3879 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 
Court No. - 39
 

 
Case :- CRIMINAL APPEAL No. - 735 of 2003 
 

 
Appellant :- Subhash 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- D.N. Pandey, D.W. Pandey, Divya Ojha (A.C.)
 
Counsel for Respondent :- A.G.A. 
 

 
Hon'ble B. Amit Sthalekar,J.

Hon'ble J.J. Munir,J.

(Delivered by Hon'ble J.J. Munir, J.)

1. This appeal is directed against a judgment and order of Sri Yogesh Kumar, the then Additional Sessions Judge, Court no.5, Azamgarh, dated 16.01.2003, convicting the appellant of an offence punishable under Section 302 IPC, and, sentencing him to suffer life imprisonment, besides being ordered to pay a fine of Rs.500/-. In the event of default, the appellant has been ordered to suffer six months' simple imprisonment.

2. The facts giving rise to the present appeal are that a written report scribed by one Devendra Kumar dated 17.06.2001, was lodged by the informant, Jagesar with Police Station Kaptanganj, District Azamgarh, reporting that he is a resident of Village Bibipur, P.S. Tahvarpur, District Azamgarh. Smt. Ajita (the deceased), daughter of the informant's brother, Satai, was married about 20 years ago to one Subhash, who was living in her matrimonial home. The couple had three children: two sons and a daughter. The elder son was aged about 10 years (presumably at the time of occurrence). On 17.06.2001, at about 5 O' clock in the morning hours, on account of some exchange of sharp words between the informant's niece and Subhash, Subhash assaulted her by some weapon with an intention to kill, in consequence of which, she died on the spot. The information was given about the incident to the informant at his home by some persons. He (informant) went over to Village Pasipur, inquired about the matter, and, after verification, had come over to give information. The deceased's father was in private employment at Kanpur. The incident was seen by the natives of the village. The dead body was lying on the spot. The information closed with a request to register a case.

3. On the basis of this written report, Case Crime No.129 of 2001, under Section 302 IPC was registered at P.S. Kaptanganj, District Azamgarh against appellant, Subhash. In this regard, an entry was made in G.D. no.10 at 10.15 on 17.06.2001. The Investigating Officer taking up investigation, recorded the statement of the informant, Jagesar, inspected the place of incident, and, drew up the site plan. On 17.06.2001, Sub-Inspector Ram Daras Verma held inquest between 11.25 a.m. to 13.15 p.m. and drew up an inquest report (Panchayatnama) to which the Panch witnesses appended their signatures. He addressed a report to the Chief Medical Officer requiring him to do an autopsy, a report to the Reserve Inspector to ensure the autopsy, besides drawing up police form no.13, a sketch of the corpse (photo lash), and, sent the dead body, wrapped, secured and sealed in a cloth for autopsy, entrusting it to Constables Dev Krishna and Jitendra Arya.

4. PW-5, Dr. Nand Lal Yadav, who conducted autopsy on the cadaver of Smt. Ajita (mentioned in the postmortem report as Smt. Anita Devi) on 17.06.2001 at 3.30, in the evening hours, found the following ante-mortem injury on the body of the deceased:

(Stab) Penetrating wound 2.50cm x 1cm x cavity deep on inner surface of right labia minora. On opening uterus and small intestine ruptured. Clotted blood present.

The cause of death was opined as 'Death due to haemorrhage and shock due to ante-mortem injury'.

5. On 24.06.2001 at 6.00 O' clock in the morning, the appellant, Subhash was arrested near the Union Bank, Kaptanganj, and, his statement was recorded.

6. On 21.07.2001, statements of Devendra Kumar, scribe of the written information, Panchas of inquest, namely, Indra Bhushan Singh, Ram Sakal, Hemraj, Gharbharan and Rambali, and, other witnesses, Rudal and Harishchandra, were recorded. On 22.07.2001 the relevant particulars of the postmortem report were recorded in the case diary. Additional statement of the informant, Jagesar, and, also statements of one Dal Singar and Rameshwar, were recorded.

7. SO Bansh Bahadur Yadav, the last Investigating Officer of the case, after completion of investigation, submitted a charge sheet on 27.07.2001 against the appellant, Subhash, charging him of committing the murder of his wife, the deceased Ajita, punishable under Section 302 IPC. The Magistrate took cognizance of the case on 27.08.2001.

8. The case was committed to the sessions by the learned Judicial Magistrate, Court no.14, Azamgarh vide order dated 02.11.2001. After committal of the case to the Court of Session, a charge under Section 302 IPC was framed against the appellant, Subhash on 10.12.2001. The appellant denied the charge and claimed trial.

9. In order to prove its case the prosecution have examined the following witnesses:

(1) PW-1, Hemraj (who has been declared hostile and cross-examined by the prosecution);

(2) PW-2, Jagesar (informant of the case);

(3) PW-3, Dhan Dei (mother of the appellant, who has also been declared hostile and cross-examined by the prosecution);

(4) PW-4, Devendra Kumar (a native of the appellant's village and scribe of the written report);

(5) PW-5, Dr. Nand Lal Yadav (the doctor who conducted postmortem examination of the deceased's corpse)

(6) PW-6, Head Moharrir Shyam Mohan (the Head Moharrir posted at P.S. Kaptanganj at the relevant time who registered the case, drew up a chik and made requisite G.D. Entry in the Station Diary)

(7) PW-7, Bansh Bahadur Yadav (Station Officer, P.S. Kaptanganj, sometime after the occurrence, and, the Investigating Officer who concluded investigation)

(8) PW-8, Kailash Nath Yadav (Station Officer, P.S. Kaptanganj, at the time of occurrence, who took up investigation, from the first I.O., Ram Daras Verma. He arrested the appellant, but did not conclude investigation).

10. By way of documentary evidence, the prosecution have relied on the following documents:

Sr. No.

Exhibit No.

Exhibited documents with brief particulars

Ex. Ka-1

Written report lodged with the Police Station Kaptanganj by PW-2, Jagesar, relating to the occurrence.

Ex. Ka-2

Post-mortem report of deceased Smt. Ajita, conducted by Dr. Nand Lal Yadav, PW-5.

Ex. Ka-3

Chik FIR drawn up by Head Moharrir Shyam Mohan, PW-6

Ex. Ka-4

Carbon copy of G.D. No.10, relating to registration of the crime on 17.06.2001 at 10.15 a.m.

Ex. Ka-5

Charge sheet submitted by the I.O. Bansh Bahadur Yadav, PW-7

Ex. Ka-6

Site plan drawn up by SI Ram Daras, I.O.

Ex. Ka-7

Inquest report drawn up by SI Ram Daras, I.O.

Ex. Ka-8

Certified copy of statement of appellant, Subhash recorded by IO, Kailash Nath Yadav

Ex. Ka-9

Parcha no.1 dated 17.06.2001 with regard to efforts made by the IO to recover weapon used in the crime

Ex. Ka-10

Report dated 17.06.2001 sent to C.M.O., Azamgarh requisitioning autopsy

Ex. Ka-11

Report dated 17.06.2001 sent to Reserved Inspector, Police Lines, Azamgarh forwarding the corpse for the purpose of arranging autopsy

Ex. Ka-12

Police form no.13

Ex. Ka-13

Sketch of the corpse (Photo lash)

11. The appellant, Subhash, in his statement under Section 313 Cr.P.C. has denied the incriminating circumstances appearing in evidence against him, but did not enter defence. However, he stated that in the night of the incident, he was not at home, but in the market.

12. The learned trial judge vide his judgment and order dated 16.01.2003 proceeded to convict the appellant, sentencing him as hereinbefore detailed. Aggrieved the present appeal has been filed.

13. Heard Ms. Divya Ojha, learned Amicus Curiae for the appellant and Sri Rishi Chaddha, learned A.G.A. appearing on behalf of the State.

14. The case being one based on circumstantial evidence, it is the prosecution's burden to prove circumstances that make for an unbroken chain which unerringly point to one hypothesis alone that is consistent with the appellant's guilt, and, no other. Thus, each of the circumstances that go to form the chain, have to be proved beyond reasonable doubt, and, all of them put together, must form an unbroken chain, leading to an unescapable conclusion, that the appellant is guilty. That is the case that the prosecution have to establish against the appellant in order to sustain the conviction.

15. The circumstances propounded by the prosecution, to be links in the chain that point to the appellant's guilt alone, excluding every other hypothesis, are these:

(1) The appellant and the deceased were a married couple, with a twenty years old marriage behind them, and, three children born of the wedlock of parties;

(2) The deceased and the appellant slept together in one part of the house, that was a room with a thatched roof (described as mandai) in the night of 16/17.06.2001, whereas the mother of the appellant slept in another part of the house, along with two sons of the appellant and her husband, comprising a room with clay-tile worked roof (described as Khaprail);

(3) The mother of the appellant woke up in the morning of 17.06.2001 at 5 O' clock to the deceased's cries, in response to which she rushed to the appellant's quarters to find the appellant with a knife (gupti) held in hand, who ran away towards the east, and, the deceased crying out to say, that she had been stabbed (by a knife). Hemraj and others too saw the appellant flee;

(4) While those present were moving in to shift the deceased to the hospital for medical aid, she died;

(5) The appellant was not available at his house since 17.06.2001 until his arrest from a public place on 24.06.2001 by the police;

(6) The fact that the site of injury was on the private part of the deceased inflicted by a sharp edged weapon, that left the clothes intact and not torn by the invading weapon; and,

(7) The explanation offered by the appellant is not at all acceptable, even by standards of a reasonable doubt, and, the explanation not being tenable, it makes the chain of circumstances complete.

16. The Court now proceeds to deal with and test each of the said circumstances on the anvil of proof beyond all reasonable doubt, and also, the worth of each of these relevant facts established, in the overall proof of the prosecution case, or otherwise.

(1) The appellant and the deceased were a married couple, with a twenty years old marriage behind them, and, three children born of the wedlock of parties.

17. So far as this relevant fact is concerned, it has figured in the testimony of PW-2, Jagesar, the father's brother of the deceased, and the first informant, that the parties were married about 20 years ago. The deceased was staying in her matrimonial home, along with the appellant. The parties were blessed with three children: two sons, and, a daughter. PW-3, Smt. Dhan Dei, who is the mother of the appellant, has shed more light about the duration of the parties' marriage to say, that the appellant and the deceased had tied the nuptial knot as children, and, marriage properly so called, referred to in language native to the parties as gauna, was performed later, when the appellant came of age. This fact, that the appellant and the deceased had a child marriage, may well show that notwithstanding the duration of their formal marriage to be twenty years, their actual association as man and wife, would have had a shorter duration. No one has challenged the aforesaid testimony, that is common ground between parties leading to a clear establishment of the relevant fact under scrutiny, in terms that the appellant and the deceased were married twenty years ago, may be together for a shorter duration, and had raised a family of three children, and, at the time of occurrence the deceased was living at Village Pasipur, in her matrimonial home with her husband, the appellant.

(2) The deceased and the appellant slept together in one part of the house, that was a room with a thatched roof (described as mandai) in the night of 16/17.06.2001, whereas the mother of the appellant slept in another part of the house, along with two sons of the appellant and her husband, comprising a room with clay-tile worked roof (described as Khaprail).

18. The aforesaid relevant fact has been propounded by the prosecution to show that circumstantial proximity between the appellant and the deceased in the night of the occurrence, that could afford a very strong opportunity to the appellant to commit the murder, that is the fact in issue. It is sought to be urged by the prosecution, that the deceased and the appellant having retired for the night together in the same room, and before life resumed its daily routine at dawn, the crime had been committed, only to be discovered. This according to the prosecution is a stronger form of the circumstance, of last seen together.

19. In support of the aforesaid circumstance, the prosecution have relied upon the evidence of PW-3, Smt. Dhan Dei. She has deposed in her examination-in-chief, to the effect that about a year ago, she had gone to bed for the night in her part of the house comprised of a tiled roof room along with her two grandsons, Bholu and Saurabh, and her husband, whereas the deceased and the appellant had gone for a night's sleep in their part of the house, a room with a thatched roof. When she woke up the following morning, and was venturing out, she saw that the deceased, Ajita was lying dead in her thatched room. She was cross-examined by the prosecution as a hostile witness. It has been rightly remarked by the trial court that merely because a prosecution witness is declared hostile, her evidence does not loose credibility. To that we may add, that the evidence of a hostile witness would not loose its credibility wholesomely. It may be good evidence about some relevant facts, or a part of them, so much of it as is otherwise dependable, either on account of its inherent worth, or the corroboration it receives by other evidence. In this connection, it is apposite to refer to the decision of the Supreme Court in Podyami Sukada vs. State of Madhya Pradesh1, where it has been held:

"11. As stated earlier, all the witnesses to the extra-judicial confession have been declared hostile by the prosecution. True it is that the evidence of the hostile witness is not altogether wiped out and remains admissible in evidence and there is no legal bar to base conviction on the basis of the testimony of hostile witness but as a rule of prudence, the court requires corroboration by other reliable evidence."

20. To the same effect is the more recent authority of their Lordships in Himanshu alias Chintu vs. State (NCT of Delhi)2, where it is said thus:

"30. In Prithi v. State of Haryana [(2010) 8 SCC 536 : (2010) 3 SCC (Cri) 960] decided recently, one of us (R.M. Lodha, J.) noticed the legal position with regard to a hostile witness in the light of Section 154 of the Evidence Act, 1872 and few decisions of this Court as under: (SCC pp. 544-45, paras 25-27)

"25. Section 154 of the Evidence Act, 1872 enables the court in its discretion to permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Some High Courts had earlier taken the view that when a witness is cross-examined by the party calling him, his evidence cannot be believed in part and disbelieved in part, but must be excluded altogether. However this view has not found acceptance in later decisions. As a matter of fact, the decisions of this Court are to the contrary. In Khujji v. State of M.P. [(1991) 3 SCC 627 : 1991 SCC (Cri) 916] , a three-Judge Bench of this Court relying upon earlier decisions of this Court in Bhagwan Singh v. State of Haryana[(1976) 1 SCC 389 : 1976 SCC (Cri) 7], Rabindra Kumar Dey v. State of Orissa[(1976) 4 SCC 233 : 1976 SCC (Cri) 566] and Syad Akbar v. State of Karnataka[(1980) 1 SCC 30 : 1980 SCC (Cri) 59] reiterated the legal position that: (Khujji case [(1991) 3 SCC 627 : 1991 SCC (Cri) 916] , SCC p. 635, para 6)

''6. ... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on careful scrutiny thereof.'

26. In Koli Lakhmanbhai Chanabhai v. State of Gujarat [(1999) 8 SCC 624 : 2000 SCC (Cri) 13] this Court again reiterated that testimony of a hostile witness is useful to the extent to which it supports the prosecution case. It is worth noticing that in Bhagwan Singh [(1976) 1 SCC 389 : 1976 SCC (Cri) 7] this Court held that when a witness is declared hostile and cross-examined with the permission of the court, his evidence remains admissible and there is no legal bar to have a conviction upon his testimony, if corroborated by other reliable evidence.

27. The submission of the learned Senior Counsel for the appellant that the testimony of PW 6 should be either accepted as it is or rejected in its entirety, thus, cannot be accepted in view of the settled legal position as noticed above."

31. The aforesaid legal position leaves no manner of doubt that the evidence of a hostile witness remains admissible evidence and it is open to the court to rely upon the dependable part of that evidence which is found to be acceptable and duly corroborated by some other reliable evidence available on record."

21. This witness has said in her cross-examination on behalf of the accused that Subhash would not scold or beat Ajita. Infrequently, however, in the usual wear and tear of family life, the two would fight when he would scold or hit her. On the day preceding the night of occurrence, there was no fight or altercation between Ajita and Subhash. The witness said that she had not heard them fight during the night. It is also said that the thatched room where the appellant and the deceased had retired for the night, is located towards the out portion of the house. That living quarter had no door. During the night of occurrence, there was heavy rainfall.

22. The aforesaid testimony of PW-3, despite being a hostile witness, does not bear any such vitiating features to it as may render it undependable. The aforesaid evidence leads to establishment of the circumstance, that on the night of occurrence, that is, 16/17.06.2001, the deceased had gone to sleep with her husband in a part of the house, which comprises a thatched room, that has no door to it. She was last seen, retiring to a night's sleep, with the appellant, before she became a victim of the crime. The prosecution have, thus, established the circumstance of last seen, beyond reasonable doubt, moreso, well adapted to the natural relationship between parties and in keeping with their natural conduct.

23. How much, would be the overall effect of this relevant fact on the prosecution in proving their case, is of the prime importance, that must be noticed here, dealt with and disposed of. The learned Amicus Curiae has urged that principle of being 'last seen', that under the general law relating to circumstantial evidence can be one link in the chain of evidence, is entirely out of context between a husband and a wife, or other family members, who in the course of daily routine of life, for the most part stay and live together. The said stand is contradicted by the learned A.G.A., who submits that the husband, who goes to sleep at night with his wife hale and hearty, with the wife to be found the victim of a crime at sunrise the following day, has a burden to discharge under Section 106 of the Evidence Act, also. He is certainly to account for the circumstances of crime by a very higher standard on the principle of last seen.

24. This Court has keenly considered the aforesaid submissions of parties. It would be appropriate, in the context, to refer to a decision of the Supreme Court in Trimukh Maroti Kirkan vs. State of Maharashtra3, where it has been held:

"22. Where an accused 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 home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. ......."

25. A very illuminating guidance about the principle of last seen, in the context of the husband and wife, vis-a-vis the understanding of the principle known to law in general, is to be found in the decision of the Supreme Court in Babu s/o Raveendran vs. Babu s/o Bahuleyan and another4, where their Lordships have elucidated it thus:

"14. The second important circumstantial evidence against the accused is that the accused and the deceased were last seen together. To put it tersely, both of them slept together by retiring to the room that night. Last seen together in legal parlance ordinarily refers to the last seen together in the street, at a public place, or at any place frequented by the public. But here, the last seen together is much more than that. The last seen together here is sleeping together inside the bolted room. It is in the evidence of PW 3 and PW 6 that they had dined together and the accused and the deceased were closeted in a room at about 8.30 p.m. Therefore, on the fateful day the accused and the deceased were closeted in a bedroom at about 8.30 p.m. is undisputed and it is for the accused alone to explain as to what happened and how his wife died and that too on account of strangulation."

26. In view of what has been noticed above, this Court is of opinion that the appellant has a very strong circumstance of 'last seen', that is of a special genre, staring in his face, that he is required to explain minimally by discharging the burden cast by Section 106 of the Evidence Act. This Court finds that he has hardly done anything to that end. The explanation of the appellant under Section 313 Cr.P.C., that he was away to the market, far from satisfies what the law would expect. The appellant had gone to bed at night with the deceased hale and hearty and there is nothing offered by him by way of an explanation, much less evidence, to account for the schedule and purpose of his movement at 5 O' clock, in the wee hours of the morning. He would have the burden to explain every minute of his activity after he woke up, consistent with his innocence in the crime. That has far from been done. The circumstance of 'last seen', thus, that bears a very special significance, almost damning, in case it remains explained, in the relationship of the husband and wife retiring together in a room for the night, must be held to be completely unexplained by the appellant.

(3) The mother of the appellant woke up in the morning of 17.06.2001 at 5 O' clock to the deceased's cries, in response to which she rushed to the appellant's quarters to find the appellant with a knife (gupti) held in hand, who ran away towards the east, and, the deceased crying out to say, that she had been stabbed (by a knife). Hemraj and others too saw the appellant flee.

27. The said circumstance, if proved, would be an immediate clincher. However, the evidence appearing in the case, does not vindicate it. The prosecution have relied upon the evidence of PW-3, Dhan Dei, who has spoken exculpatory on this very relevant fact. In fact, it is for this part of her evidence that the prosecution have chosen to class her as a hostile witness. This witness, in her examination-in-chief, has said that when she woke up in the morning and was moving out, she saw Ajita lying dead in her thatched quarter. She did not see Subhash stab Ajita with a knife or running away from that place. In her cross-examination by the prosecution, she has said that she sent Gatti (presumably a native of the village) over to the deceased's family to convey them word about the occurrence. Jagesar and many others had come over. She did not know whether Jagesar and others had lodged a report with the police, but the police had come. She also said that Darogaji had questioned her. It is recorded specifically in her cross-examination that the statement of the witness under Section 161 Cr.P.C. was read out to her, which she heard and said that she had not made that statement to the police. She further said that she was not deposing falsely, in order to save her son.

28. The only other witness of fact about the circumstance in hand is PW-1, Hemraj, a neighbour, who had allegedly given statement to the police that he had seen the appellant running away with a knife (gupti), but in his examination-in-chief, he denied having seen any fact relevant to the occurrence. In his cross-examination, he denied having made any statement to the police under Section 161 Cr.P.C., including the one that was read out to him, as his recorded statement. In view of all this evidence, the aforesaid circumstance, that was raised by the prosecution, must be held far from proved.

(4) While those present were moving in to shift the deceased to the hospital for medical aid, she died.

29. This circumstance is about the precise facts as to how, when and under what circumstances, did the deceased die. It is not about the cause of her death. The prosecution have sought to prove these circumstances by relying upon the testimony of PW-4, Devender Kumar, a neighbour of the appellants. It has been said by this witness in his examination-in-chief recorded on 25.09.2002, that Ajita had been murdered on 17.06.2001 at about 5 O' clock in the morning. He heard the commotion over it and went over to Subhash's house. He saw that Ajita was in a precarious condition and the natives gathered there were calling ready to convey her to hospital, but before that would be done, she died. In his cross-examination, this witness has stated that he had reached the place of occurrence at 5.30 in the morning, where there were a multitude of people gathered. He has said that he had seen Ajita at the place of occurrence. She had died. There might be slight discrepancies in the account of this witness about the time, that he went over to Subhash's house, but largely it appears to be that, that he visited the place of occurrence between 5.00 to 5.30 a.m. There is also a doubt attempted to be thrown up through a wavering answer to a searching cross-examination, where this witness says, that at the place of occurrence when he saw Ajita, she had died, whereas in the examination-in-chief he speaks about Ajita being alive when he reached the place of occurrence, who died before they could reach her to hospital.

30. To the understanding of this Court on a wholesome reading of the evidence, the witness had seen Ajita in the last breath of her life, who passed away sometime between 5.00 to 5.30 in the morning while the natives of the village were arranging to reach her to hospital. This fact accordingly stands proved.

(5) The appellant was not available at his house since 17.06.2001 until his arrest from a public place on 24.06.2001 by the police.

31. Regarding this fact that the evidence of PW-8, Kailash Nath Yadav, Sub-Inspector of Police and the Investigating Officer, during that stage of investigation when the appellant was arrested, has stated, thus, in his examination-in-chief recorded on 28.11.2001:

"On 24.06.2001 upon information received from an informer at 6 O' clock in the morning, the appellant was arrested near the Union Bank of India, Branch Kaptanganj Bazar and his statement was recorded. I have drawn up a copy of his (the appellant's) statement, which I have certified and the same is being filed on record. It is marked as Ex. Ka-8. Thereafter, I was transferred from P.S. Kaptanganj. The predecessor I.O. has recorded in the Case Diary dated 17.06.2001 that he made efforts to recover the weapon and to arrest the accused. He was not found at home nor was the weapon recovered. The aforesaid facts that are recorded in the Case Diary have been being copied out, certified and filed on record. It is marked as Ex. Ka-9." (translated into English from Hindi vernacular).

32. This witness, on being cross-examined, has not said anything that may detract from the veracity of his evidence in the examination-in-chief, that the appellant was arrested by him on 24.06.2001 at the place, time and in circumstances deposed to. There is also nothing to shake the credibility of his deposition elicited during his cross-examination that may belie his testimony to the effect that his predecessor made efforts to arrest the accused on the date of occurrence, and also, to recover the weapon; that for the purpose the predecessor I.O. went to the appellant's house, but did not find him there; and, that these efforts by the predecessor I.O. were made on 17.06.2001.

33. The aforesaid testimony of the PW-7, clearly establishes the fact that between 17.06.2001 and 24.06.2001, the appellant remained away from home. He did not make himself available to the police to answer any questions concerning his wife's death, of which he was the most important witness to shed light on, in the circumstances, if nothing more. It is urged by the learned Amicus Curiae about this circumstance that it hardly does any service to the prosecution. It is argued by her that the overtime running rumour mills and a predetermined message by the police that the appellant was the culprit, sent an already traumatized native of a village like the appellant, unarmed by education, influence, or power of any kind, underground for the fear of false implication in the case of his wife's murder, about which he is as ignorant as any other in the village. She submits, that the conduct of the appellant in staying away from home, and, the police has to be viewed realistically from the outlook of the man that the appellant is. It cannot be prejudged on a notional basis. She submits that in the circumstances that the appellant had been placed in at the relevant point of time, his abscondence is not a relevant fact within the meaning of Section 8, Evidence Act, that may serve as a circumstance to infer a guilty mind. In this connection, the learned Amicus Curiae has placed reliance on a decision of the Supreme Court in Sunil Kundu and another vs. State of Jharkhand5, where it has been held by their Lordships:

"28. It was argued that the accused were absconding and, therefore, adverse inference needs to be drawn against them. It is well settled that absconding by itself does not prove the guilt of a person. A person may run away due to fear of false implication or arrest. (See Sk. Yusuf v. State of W.B. [(2011) 11 SCC 754 : (2011) 3 SCC (Cri) 620] ) It is also true that the plea of alibi taken by the accused has failed. The defence witnesses examined by them have been disbelieved. It was urged that adverse inference should be drawn from this. We reject this submission. When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their defence. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt."

34. Learned Amicus Curiae has buttressed her contention on this score by placing further reliance on a decision of their Lordships of the Supreme Court in SK. Yusuf vs. State of West Bengal6, where dwelling upon the circumstance of absconding after commission of the offence, it has been held thus:

"31. Both the courts below have considered the circumstance of abscondence of the appellant as a circumstance on the basis of which an adverse inference could be drawn against him. It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely on being suspected, out of fear of police arrest and harassment. (Vide Matru v. State of U.P. [(1971) 2 SCC 75 : 1971 SCC (Cri) 391 : AIR 1971 SC 1050], Paramjeet Singh v. State of Uttarakhand [(2010) 10 SCC 439 : (2011) 1 SCC (Cri) 98 : AIR 2011 SC 200] and Dara Singh v. Republic of India [(2011) 2 SCC 490 : (2011) 2 SCC (Cri) 706]. Thus, in view of the law referred to hereinabove, mere abscondence of the appellant cannot be taken as a circumstance which gives rise to draw an adverse inference against him."

35. It has been emphasized by the learned Amicus Curiae that the circumstance of abscondence by an accused though not entirely irrelevant, the same is never regarded as a strong link in the chain of circumstances, that is otherwise not flawlessly consistent and complete. In support of this contention of her's, reliance has been placed on a decision of the Supreme Court in Matru alias Girish Chandra vs. State of U.P.7, where it was held:

"19. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence."

36. No doubt the principle that mere abscondence of the accused after occurrence cannot be regarded as decisive or a very strong circumstance, pointing to his guilt, is well settled. But, it is equally well settled that abscondence of the accused, or say, a mere suspect at that stage, is certainly a relevant fact that has to be taken into account as a link in the chain of circumstance. It may not of itself be a very strong and decisive link in the chain, but taken together with the other relevant facts that go to make the chain, the conduct of the accused in absconding, particularly, for a long period of time - long in the circumstances of the case, and, that too, staying away from home may certainly be an important link, that cannot be discounted or ignored. The principle in the terms indicated above, find support from the statement of the law in this regard in Matru alias Girish Chandra (supra) relied upon by the learned Amicus Curiae. The importance of abscondence by the accused in the context of the crime of murder of his wife, fell for consideration of the Supreme Court in State of Andhra Pradesh vs. Patchimala Vigneswarudu alias Vigganna alias Ganapathi8, where also the husband was charged on the basis of circumstantial evidence, amongst others of last seen, when the accused after committing the crime in the night intervening 05/06.08.2001 absconded and was arrested on 09.08.2001. Their Lordships after taking into consideration the other circumstances, accorded to the conduct of the accused, a place in the link forming the chain of circumstances, and restored the trial court's judgment of conviction reversing the High Court, holding thus:

"16. Lastly, it is stated on record by the prosecution witnesses that the accused absconded after the incident.

18. Succinctly stated, the following circumstances are found to have been proved on record:

(i) Admittedly, the deceased was the wife of the accused and they had strained relations.

(ii) The accused was suffering from venereal disease which he suspected to have sexually transmitted through his wife.

(iii) On 5-8-2001, the accused had gone to his in-laws' house and took his wife with him.

(iv) The deceased and the accused were last seen in the midnight (intervening night of 5-8-2001 and 6-8-2001) going together from cinema hall after night show, towards Village Ayinavilli.

(v) The accused was last seen returning alone from Village Ayinavilli, after midnight at about 12.30 a.m. i.e. 0030 hrs on 6-8-2001.

(vi) The dead body of the deceased was recovered next morning on 6-8-2001 from Village Ayinavilli.

(vii) The deceased had died homicidal death and cause of her death was asphyxia due to strangulation.

(viii) It is also established that the accused absconded from the village after the incident."

37. Again, dwelling on the same principle and attaching weight to the conduct of the accused in absconding for a period of four days after his wife was discovered dead in the house by her mother, whom she had left hale and hearty back home while going to the market to buy vegetables, but found her dead on return, where she was alone with her husband and two minor children, in the togetherness of the other circumstances, the Supreme Court in State of Karnataka vs. Lakshmanaiah9, held it to be an important link in the chain of circumstances, opining:

"3. There is no direct evidence against the respondent. The prosecution relied on the following circumstances:

1. Motive as disclosed by Kalaraju PW 24, Puttamadappa PW 25, Gowramma PW 26 and Leelavathi PW 27.

2. Presence of deceased and the respondent in the house of PW 26 on the evening of January 12, 1979 as deposed by Mahadev PW 17, PW 26 and PW 27.

3. After sending PW 17, PW 26 and PW 27 from the house for purchasing clothes and ''Heralikayi', the respondent was alone with the deceased along with two small children.

4. The respondent was going towards bus-stop holding his suitcase in his hand on the evening of January 12, 1979 as seen by Subbaiah PW 14 and corroborated by Chikkaiah PW 20 and Boraiah PW 22.

5. The conduct of the accused in absconding from the evening of January 12, 1979 till he was apprehended on the night of January 16, 1979.

9. The trial court relying upon the testimony of PW 14, PW 20 and PW 22 came to the conclusion that the circumstance relied upon by the prosecution to the effect that the respondent was going towards bus-stand holding suitcase in his hand at about 6.30 p.m. on January 12, 1979 was proved. There is no discussion, not even mention, of this circumstance by the High Court. According to us, the trial court rightly relied upon this circumstance in connecting the respondent with the crime. The High Court has also not discussed the circumstance that the respondent was absconding till the night of January 16, 1979 when he was arrested which is surely a link in the chain of circumstances to establish that the respondent alone had committed the offence of murder of his wife. All the above-discussed circumstances would prove that the respondent alone had killed his wife Nagarathnamma and the prosecution brought home the offence against the respondent beyond any shadow of doubt."

38. In the present case, the occurrence took place in the night intervening 16/17.06.2001 and the deceased was discovered in the early morning by PW-3, the mother-in-law to be already dead with a stab wound, whereas according to PW-4, she was alive but in a precarious state, according to to both witnesses in the morning at about 5.00 to 5.30 a.m. But, the appellant was not to be found there. He definitely absconded from the place of occurrence, which was his own house, where his wife lay dead. He had gone to bed with her the night before, and, in case, anything had happened in his presence of which he was not the author, he would be the first to report. Assuming, that he left earlier than 5 O' clock in the morning, about which there is a faint defence in the statement under Section 313 Cr.P.C., in case he was not in the know of what had happened, he would appear on the scene and inquire himself. If the submission of the learned Amicus Curiae is to be accepted for the sake of argument, that upon the natives and the local police opining it to be his handiwork, the appellant went underground to escape being apprehended for something that he has not done, he would certainly take steps, within a few hours to secure legal redress, or contact some of his relatives or friends, to convey at least, the message of his innocence. It would equally be the natural conduct of an innocent husband to take part in the last rites of his wife, but the determination to abscond was so firm, that the said desire was either completely obliterated, or not at all there. By absconding, therefore, the appellant exhibited conduct contrary to the normal behaviour of an innocent man.

39. The conduct of the appellant in disappearing without trace, while his wife with whom he had gone to bed the night before, lay dead in their room of whatever kind, and, remained elusive for as long a period as eight days, when he was arrested by the police from a public place, certainly makes his conduct a telltale circumstance, may not be decisive, but certainly a link in the chain of circumstances, that far from being ignored, has to be accorded its due weight.

40. It is, thus, held that the prosecution have proved the circumstance firmly that the appellant absconded from the place of occurrence, and, remained elusive for a period of eight days, without any explanation about his abscondence, in a manner and under circumstances, that makes it inculpatory.

(6) The fact that the site of injury was on the private part of the deceased inflicted by a sharp edged weapon, that left the clothes intact and not torn by the invading weapon.

41. The deceased received an injury, which is a punctured wound, 2.5 cm x 1 cm x cavity deep, sited on the inner surface of labia minora. Upon opening the wound, the uterus and the small intestine were found ruptured, with blood clotted. The body, however, was not only fully clothed, but the clothes were not torn anywhere, including the part of them where the wound was inflicted. In this regard, the evidence of PW-5, Dr. Nand Lal Yadav, who conducted autopsy of the deceased, in his examination-in-chief, has described the injury as follows (verbatim in Hindi vernacular):

"e`rdk lkekU; dn dkBh o xsgq, jax dh Fkh e`R;q ds i'pkr dh vdM+u ekStwn Fkh vkW[ks o eqag cUn FkhA e`rdk ds eqIrkax o ey }kj ls [kwu cg jgk FkkA e`rdk dh mez djhc 30 o"kZ FkhA

e`R;q iwoZ dh pksVs%&

1- ?kksik gqvk ?kko 2.5 cm x 1 cm x isV ds vUnj rd xgjkA nkfgus ysfc;k ekbuksjk] xqIrkax ds vUnj dh rjQA ?kko [kksyus ij cPpsnkuh vkSj NksVh vkWr Qvh gqbZ Fkh vkSj tek gqvk [kwu ekStwn FkkA

vkUrfjd ijh{k.k%& g`n; ds nksuks psEcj [kyh Fkh isV dh f>Yyh QVh gqbZ Fkh] isV esa [kwu o ey ekStwn Fkk] vkek'k; esa 2 xzke v/kipk [kkuk ekStwn FkkA NksVh vkWr nks txg ls dVh Fkh] isV ds lc vaxks ls [kwu dh ek=k de gks x;h FkhA esjh jk; esa mijksDr pksVks dh otg ls vf/kd jDrlzko gks tkus ds dkj.k e`rdk dh e`R;q gqbZ gS] e`rdk dh e`R;q 'ko foPNsnu djus esa yxHkx vk/kk fnu iwoZ gqbZA

e`rdk ds 'kjhj ij ,d lkM+h ,d isVhdksV ,d Cykmt o iSj dh vaxqyh esa nks fcfN;k izkIr gqbZ Fkh budks lhy eqgj djds 'ko ykus okys flikfg;ksa dks lkSai fn;kA"

42. This witness in his cross-examination has testified (verbatim in Hindi vernacular):

"'ko ij tks diM+s igus gq, Fks os dgha dVs gq, ugha Fks diM+s rHkh dVrs gS tc gfFk;kj vkSj 'kjhj ds chp esa tk;A 'ko ij 'ko ij lkM+h o isVhdksV iguk gqvk Fkk 'ko dk xqIrkax igus gq, diM+ks ls 43. The aforesaid facts that figure in the testimony of the autopsy Doctor, PW-5, and, have remained unshaken during his cross-examination, go to show that the deceased received a stab - punctured wound by a sharp edged weapon to her private part, that ruptured her small intestine and uterus. The said injury has been opined to be the cause of death by the doctor. There is no reason to disbelieve that opinion. There is no evidence to the contrary. By all standards, the nature and extent of the injury under reference, appears to be the cause of death, particularly, when there is no other cause or injury, attributed to the fatality. It is, thus, held that the deceased died an unnatural death - was murdered, where the cause of death is the solitary stab - punctured injury sustained to her private part as detailed hereinbefore.

44. It is argued by the learned A.G.A. that the situs of injury being the private part, hints strongly towards the husband being the author of it. This is so as in the normal conduct of human affairs, the modesty of a woman would not permit her to expose her privacy to a stranger. The learned Amicus Curiae has stoutly disputed the said submission on behalf of the prosecution, which she has repelled on foot of reasoning that a stab may be delivered to any part of the body, and the cruel hand of a murderer, is not sensitive to which part of his victim's body, the blow would land. She submits that the prosecution cannot garner any capital out of the mere fact, that the solitary and fatal injury has been sustained by the deceased to her private part.

45. In the opinion of the Court, the submission of the learned Amicus Curiae, misses out on one obvious fact. Though, the injury is a stab - punctured wound to the private part, and the body of the deceased was fully draped, the clothes where the knife struck her, have not all been torn. This contingency is almost by that common experience impossible, of which judicial notice can be taken. In case, the deceased were struck by a knife while she was draped as she was, when the body was received by the autopsy doctor, the knife blow that struck her deep and fatal, would surely have torn her clothes; at least at the site, where the knife invaded her body. In this connection, the autopsy doctor was cross-examined, the contents of which have been extracted above, asking him as to whether the clothes were torn (or ripped) anywhere. The doctor has specifically responded to say that the clothes were not found torn anywhere. He has further said in answer to some more probing question, that clothes are torn (or ripped) when they are there between the body and the weapon. This witness has further stated in response to some other question that the body was covered by a sari and a petticoat, and, further that the private part was also covered by clothing.

46. The aforesaid facts, that are well established on the unshaken credit of an expert witness, who is a witness of fact about certain things, including state of the clothing on the body, the condition of the clothes - whether they had a tear to them or not, and, the parts of the body covered by those clothes, assure this Court to complete satisfaction that the deceased was struck by a knife blow to her private part, either when she was undressed or when it was exposed. Not to enter into further analysis of the manner in which the deceased would have received such an injury, and, who could be the author of it, as that would involve embarrassing and avoidable detail, the only inference that this Court draws from the above facts is that the deceased was struck fatally by the man whom she shared all privacy; and, that is the appellant alone, her husband. No one else, on the facts, circumstances and evidence on record, by any alternative hypothesis, could have stabbed her in that manner.

(7) The explanation offered by the appellant is not at all acceptable, even by standards of a reasonable doubt, and, the explanation not being tenable, it makes the chain of circumstances complete.

47. The circumstances appearing against the appellant were put to him under Section 313 Cr.P.C. by the trial court . To most of the detailed circumstances appearing against him, that have been mentioned above, the evidence in support examined and conclusions about each indicated, all that the appellant has said are vague and omnibus answers, such as 'Ji ghalat saksh hai', 'mujhe nahin malum', 'Ji ghalat aarop patra bheja hai', 'Ji ghalat gavahi hai'. An open ended question giving him all opportunity to say and explain the circumstances appearing against him, consistent with his innocence, was put to the appellant, the question being to the effect: Kya aap ko kuchh aur kahna hai? In answer, all that the appellant said is 'Ji ghatna vaali raat mai ghar par nahin thaa. Mai bazar mein thaa'.

48. It brooks little doubt that the right of an accused to explain the circumstances appearing against him in the prosecution evidence stands on a very high pedestal, and, is referable to the right of the accused to a fair trial guaranteed under Article 21 of the Constitution. In this connection, a very recent decision of their Lordships of the Supreme Court in Reena Hazarika vs. State of Assam10, may be quoted with profit:

"16. Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2), Cr.P.C. The importance of this right has been considered time and again by this court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section 313(4) Cr.P.C. to consider the same. The mere use of the word ''may' cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing."

49. Bearing the aforesaid perspective in mind, this Court has carefully considered the defence/ explanation offered by the accused in response to the various circumstances put to him under Section 313 Cr.P.C. The responses to specific circumstances vide questions 1, 2, 3, 4, 5, 6, 7 & 8, are not only vague but almost dismissive. They have been referred to in the words of the appellant, spoken in vernacular, hereinbefore. Amongst others, one circumstance put to him was about his abscondence from home, at the time when his wife was discovered dead by his mother in their common quarters, in the morning hours. All that he said in response was, "I do not know" (translated into English from Hindi vernacular). In response to the most open ended question, that is question no.9, where the appellant was asked, if he had anything else to say, all that the appellant said was that in the night of occurrence, he was not at home and had gone to the bazar. Now, there is no earthly reason why a man would go to the bazar by night. Otherwise too, the evidence of PW-3, the appellant's mother is to the effect that he and the deceased retired to bed at night, a fact that has been found to be well proven. Thus, the explanation that he had gone to the market by night, is neither proved on facts or acceptable to its face, as a plausible explanation. Giving allowance for the fact that the appellant might be a man of scanty education, and, by employing the word 'night', he meant very early hours of the morning, may be a little before time that his wife was found stabbed between 5.00 to 5.30 a.m., it has not been mentioned at all as to what kind of a market and for what purpose had the appellant gone at day break. It is common knowledge that in a village, even in the month of June, markets do not do business at dawn. The explanation, therefore, offered by the appellant in response to the various circumstances appearing against him is found and held to be utterly unacceptable. The trial court has not accepted it too, which meets our approval.

50. The fact that the explanation offered by the appellant has been found by us to be unacceptable, besides the fact that it is an explanation of the very detailed circumstances for the prosecution appearing against him that we have found proved to the hilt, the non-acceptance of the appellant's explanation adds a link to the chain of circumstances appearing against the appellant, that makes it complete. This conclusion of ours is based on a well accepted principle of law applicable to cases of circumstantial evidence, which postulates that in such cases an explanation where it is not offered at all, or if offered, is not found satisfactory, provides an additional link to the chain of circumstances appearing against an accused, that would act as a clincher. In this regard, we may refer to the decision of their Lordships in Trimukhi Maroti Kirkan (supra), where it has been laid down:

"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. [See State of T.N. v. Rajendran [(1999) 8 SCC 679 : 2000 SCC (Cri) 40] (SCC para 6); State of U.P. v. Dr. Ravindra Prakash Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri) 642 : AIR 1992 SC 2045] (SCC para 39 : AIR para 40); State of Maharashtra v. Suresh [(2000) 1 SCC 471 : 2000 SCC (Cri) 263] (SCC para 27); Ganesh Lal v. State of Rajasthan [(2002) 1 SCC 731 : 2002 SCC (Cri) 247] (SCC para 15) and Gulab Chand v. State of M.P. [(1995) 3 SCC 574 : 1995 SCC (Cri) 552] (SCC para 4).]"

51. This Court has, therefore, no hesitation to hold that the unacceptable explanation offered by the appellant about the circumstances appearing against him in the prosecution provides an additional link in the chain of circumstances appearing against him, that have been found proved by us, and, that the failure of the appellant to come up with an acceptable explanation about the circumstances, makes the chain of these, complete.

52. We are mindful of the principle that it is always for the prosecution to establish its case beyond all reasonable doubt. In cases of circumstantial evidence, the circumstances on the basis of which the prosecution relies to prove its case have to be established beyond reasonable doubt, and, those circumstances must form an unbroken chain so complete that it is incompatible with any other hypothesis, but that of the guilt of the accused. In this regard, this Court would place reliance on a restatement of the principles about the standard for a conviction based on circumstantial evidence made by the Supreme Court in Arvindkumr Anupalal Poddar vs. State of Maharashtra11, where it has been held:

"15. In the decision in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 : 1984 SCC (Cri) 487], this Court has laid down the cardinal principles regarding appreciation of circumstantial evidence and held that whenever the case is based on circumstantial evidence, the following features are required to be complied with which has been set out by this Court which reads as under: (SCC p. 185, para 153)

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully 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 Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033] where the following observations were made: [SCC p. 807, para 19 : SCC (Cri) p. 1047, para 19]

''19. ... 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.'

(emphasis in original)

(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."

The above principles have been followed and reiterated in the recent decision of this Court in Mustkeem v. State of Rajasthan [(2011) 11 SCC 724 : (2011) 3 SCC (Cri) 473]."

53. In order to afford to the appellant, benefit of all legitimate doubt, that may still arise, we have keenly considered two further circumstances, urged on behalf of the appellant by the learned Amicus Curiae. According to her, the failure of the prosecution to establish motive of the crime, and, the further circumstance in failing to recover the weapon of offence, do not make the chain of the circumstances infallibly complete.

54. As regards motive, there is no cavil on facts that the prosecution have not pleaded much less established a motive for the offence. That circumstance, usually attempted to be established in cases based on circumstantial evidence, is certainly not there. But, to the understanding of this Court, it is no rule of law, or even of prudence that in a case based on circumstantial evidence, the Court must always seek it to be established, or else throw out the prosecution. Motive, if propounded and established by the prosecution, certainly adds to the chain circumstances, that is always more assuring, to the Court, if the prosecution case is accepted. However, its absence is in no way a vitiating factor in the event, the prosecution on the basis of the circumstances established, is able to make out an unimpeachable case. In this connection, the decision of the Supreme Court in Ranganayaki vs. State by Inspector of Police12, is of salutary guidance, where their Lordships have said thus:

10. Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murder has been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Campbell struck a note of caution in Red v. Palmer [ Shorthand Report at p. 308, May 1856] thus:

"But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties."

Though, it is a sound presumption that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailants. In Atley v. State of U.P. [AIR 1955 SC 807 : 1955 Cri LJ 1653] it was held: (AIR p. 810, para 6)

"That is true, and where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty, but absence of clear proof of motive does not necessarily lead to the contrary conclusion."

In some cases it may be difficult to establish motive through direct evidence, while in some other cases inferences from circumstances may help in discerning the mental propensity of the person concerned. There may also be cases in which it is not possible to disinter the mental transaction of the accused which would have impelled him to act. No proof can be expected in all cases as to how the mind of the accused worked in a particular situation. Sometimes it may appear that the motive established is a weak one. That by itself is insufficient to lead to an inference adverse to the prosecution. Absence of motive, even if it is accepted, does not come to the aid of the accused. These principles have to be tested on the background of factual scenario."

55. In view of what we have found, we hold that mere absence of motive, would not vitiate the prosecution, that is otherwise supported by an unbroken chain of circumstances. In the instant case, that chain being flawlessly complete, the lack of motive assigned is of no consequence.

56. Learned Amicus Curiae has urged that in the absence of recovery of the weapon, the prosecution that rests entirely on circumstantial evidence, cannot be held to have proved its case beyond reasonable doubt. We are of opinion that the mere absence of recovery of the weapon of crime, will not vitiate a prosecution, that has otherwise put together circumstances in an unbroken chain, that unmistakably point to the guilt of the accused. We are fortified in the view that we take by the guidance of the Supreme Court in Amit vs. State of Uttar Pradesh13, where their Lordships held:

16.Coming to the argument of the counsel for the appellant that the weapon with which Monika was killed has not been recovered, it appears from the evidence of the Senior Pathologist Dr Vikrama Singh, PW 5, who carried out the post-mortem report on the body of Monika that there were swelling marks on her head and left side of the face which established that she had been hit on her head and her left side of the face. PW 5 has also stated in his evidence that there was a ligature mark all around her neck which indicates that she was also strangulated. PW 5 has further deposed that there was a lacerated wound on the anterior part of arms, anus and her vagina was inflamed and congested which prove that unnatural offence and rape was committed on her. PW 5 has opined that all the injuries together are the cause of the death of Monika.

17. The report of the forensic science laboratory (Ext. A-23) confirms human blood and human sperm on the underwear of Monika. Thus, even if the object with which Monika was hit has not been identified and recovered, the evidence of PW 3, the recovery of various articles made pursuant to the confession of the appellant, the evidence of PW 5 and the report of the forensic science laboratory, Ext. A-23 prove beyond all reasonable doubt that it is the appellant alone who after having kidnapped Monika committed unnatural offence as well as rape on her and killed her and thereafter caused disappearance of the evidence of the offences. The High Court has, therefore, rightly confirmed the conviction of the appellant under Sections 364, 376, 377, 302 and 201 IPC."

57. The learned Amicus Curiae has strenuously argued that in Amit (supra), there was recovery of other incriminating material to connect the accused to the crime, that is not there in the present case. But, to the understanding of this Court, every case of circumstantial evidence, is based on its own chain of circumstances, which would, of course, be very different from another case. No two would be alike. The principle that is, however, discernible from their Lordships' decision in Amit (supra) is that recovery of the weapon of crime is not a sine qua non for the prosecution to succeed in a case of circumstantial evidence. Thus, we do not find any force in this contention urged on behalf of the appellant, that lack of recovery dents the prosecution on that account alone.

58. We, accordingly, hold that the following circumstances found proved and determined by us on the basis of evidence on record go to form an unbroken chain that unfailingly point to the guilt of the appellant, and, at the same time, are incompatible with any other exculpatory conclusion:

(1) The appellant and the deceased were married twenty years ago, may be together for a shorter duration, who had raised a family of three children, and, at the time of occurrence, the deceased was living at Village Pasipur, in her matrimonial home with her husband, the appellant;

(2) The deceased and the appellant slept together in one part of the house, that was a room with a thatched roof (described as mandai) in the night of 16/17.06.2001, with the deceased going to bed hale and hearty at night, but was found murdered the following morning, between 5.00 to 5.30 a.m. in the room aforesaid, and, the appellant missing. The circumstance of 'last seen', must be held to be completely unexplained by the appellant;

(3) The deceased Ajita passed away sometime between 5.00 to 5.30 in the morning of 17.06.2001, while natives of the village were arranging to reach her to hospital;

(4) The appellant was not available at his house since 17.06.2001, until his arrest from a public place on 24.06.2001 by the police, which shows that he absconded from the place of occurrence, and, remained elusive for a period of eight days without any explanation about his abscondence, in a manner and under circumstances, that makes it inculpatory;

(5) The fact that the site of injury was on the private part of the deceased inflicted by a sharp edged weapon, that left the clothes intact and not torn by the invading weapon, which shows that the deceased was struck fatally by the man whom she shared all privacy; and, that is the appellant alone, her husband; and,

(6) The explanation offered by the appellant is not at all acceptable, even by standards of a reasonable doubt, and, the explanation not being tenable, makes the chain of circumstances complete.

59. In the result, we do not find any ground to interfere with the impugned judgment and order passed by the Trial Court and we hereby affirm the same ordering this appeal to stand dismissed.

60. Before parting with the matter this Court places on record its appreciation for the valuable assistance rendered by Ms. Divya Ojha, learned Amicus Curiae in this matter. The learned Amicus Curiae shall be entitled to receive in fee, a sum of Rs.11,000/-.

61. Let a copy of this order be certified to concerned court through Sessions Judge, Azamgarh within a fortnight, who shall cause this order to be communicated to the appellant through the Jail Superintendent/ Jailor of the Jail, wherever the appellant is serving, forthwith upon receipt of a copy of this order.

62. Criminal Appeal no.5648 of 2004 (Ashok Kumar and another vs. State of U.P.) connected with Criminal Appeal no.77 of 2005 (Devi Muni Ram vs. State of U.P.), appears to be wrongly tagged on account of some mistaken office report. These two appeals shall no longer be treated to be connected or tagged to this appeal.

Order Date :- 22.11.2018

Anoop