Prashant S/O. Bhaurao Mahatme(In ... vs State Of Maharashtra Thr. P.S.O., ...
2021 Latest Caselaw 16832 Bom

                                  1                          Criminal Appeal No.557.18.odt



IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         NAGPUR BENCH AT NAGPUR

            CRIMINAL APPEAL NO.557 OF 2018


     Prashant s/o Bhaurao Mahatme,
     Aged 38 years,
     Occupation-Private Work,
     R/o. Ward No.3, Near Bhanegaon,
     Tah. Saoner, District-Nagpur.
     (At present in Central Jail, Nagpur)               ..             Appellant

                                      .. Versus ..

     State of Maharashtra,
     Through Police Station Officer,
     Police Station, Khaparkheda,
     Tah. Saoner, District-Nagpur.                      .              Respondent


                           ..........
     Mr A.K. Bhangde, Advocate for Appellant,
     Mr M.J. Khan, APP for Respondent-State.
                           ..........


                     Coram:            M.S. Sonak and
                                       Pushpa V. Ganediwala, JJ.

                     Reserved on   : 02.12.2021.
                     Pronounced on : 04.12.2021.



     JUDGMENT (PER: M. S. SONAK, J.)

Heard Mr. A.K. Bhangde, learned counsel for the

appellant, and Mr. M.J. Khan learned Additional Public Prosecutor

for the respondent-State.

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2. This appeal is directed against the judgment and order

dated 31.01.2018 made by the learned Sessions Judge, Nagpur in

Sessions Case No.471/2014, convicting the appellant for an offense

under Section 302 of the Indian Penal Code and sentencing him to

undergo life imprisonment and to pay a fine of Rs.3,000/- and in-

default to suffer simple imprisonment for 6 months. The appellant is

also convicted under Section 201 of the Indian Penal Code and

sentenced to rigorous imprisonment for 2 years and to pay a fine of

Rs.1,000/- and in default to suffer simple imprisonment for 3

months.

3. The prosecution version is that on the night intervening

15.7.2014 and 16.7.2014, the appellant strangulated his wife Rajni

and made it appear that she has committed suicide by hanging

herself. The prosecution has alleged that the appellant began

harassing Rajni after a daughter with a hole in the heart was born to

them. The prosecution has also alleged that the appellant was

having an illicit affair with the neighboring lady. All these factors

were alleged to be the motive for strangulating Rajni.

4. The learned Sessions Judge framed the charge and the

appellant pleaded his innocence. The prosecution examined 18

witnesses. The appellant was questioned under section 313 of the

3 Criminal Appeal No.557.18.odt

Code of Criminal Procedure. He maintained that this was a case of

suicide by Rajni. The appellant did not examine himself or the

defense witnesses. By the impugned judgment and order, the

learned Sessions Judge convicted and sentenced the appellant.

Hence, the present appeal.

5. Mr. Bhangde, learned counsel for the appellant submitted

that this is a case of circumstantial evidence and the principles

applicable for evaluation of circumstantial evidence have been

ignored by the learned Sessions Judge in this case. He submitted

that there were several infirmities in the medical evidence and based

on such evidence, the learned Sessions Judge was not justified in

concluding that this was a case of homicidal death as opposed to

suicidal. He referred to Modi's Textbook of Medical Jurisprudence

and Toxicology, Twenty-Fourth Edition-2011, to submit that the

evidence militated against the theory of strangulation, but supported

the defense version that Rajni had committed suicide by hanging

herself. He relies on Balaji Gunthu Dhule .vs. State of Maharashtra,

(2012) 11 SCC 685, to submit that in a case of circumstantial

evidence, the conviction only based on postmortem report will not be

proper.

4 Criminal Appeal No.557.18.odt

6. Mr. Bhangde submitted that the evidence of the

prosecution witnesses on the aspect of so-called motive is completely

contradictory and deserves no credence. He submits that the learned

Sessions Judge has misinterpreted the provisions of Section 106 of

the Evidence Act to convict the appellant. He relies on the State of

Punjab .vs. Bhajan Singh and others, (1975) 4 SCC 472, Nagendra

Sah .vs. State of Bihar, 2021 SCC OnLine SC 717 and Shivaji

Chintappa Patil .vs. State of Maharashtra, (2021) 5 SCC 626, in

support of his contentions.

7. Mr. Bhangde submitted that, in this case, there were

suicide notes found by the investigating agency. The investigating

officer has admitted that the suicide notes were in the handwriting of

Rajni. Even the handwriting experts have opined to this effect. He

submitted that this crucial aspect has been discarded by the learned

Sessions Judge based on some hypothetical theory neither put forth

by the prosecution nor established by the prosecution evidence.

8. Mr. Bhangde submitted that for all the aforesaid reasons,

the impugned judgment and order is liable to be set aside.

9. Mr. M.J. Khan, learned Additional Public Prosecutor for

the respondent-State, defended the impugned judgment and order

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based on the reasoning reflected therein. He submitted that there is

overwhelming evidence that the appellant and Rajni were residing

along with their minor daughter in a separate portion of the house

which was independent of the portion in which the parents and the

appellant's brother were residing. He submitted that the medical

evidence points to homicidal death by strangulation. He, therefore,

submits that the provisions of Section 106 of the Evidence Act were

attracted and the onus was on the appellant to prove the facts within

his special knowledge leading to the death of Rajni. He submits that

the appellant has failed on this aspect and therefore the impugned

judgment and order warrants no interference. He relies on Trimukh

Maroti Kirkan .vs. State of Maharashtra, 2006 (10) SCC 681 and

Mandhari .vs. State of Chhattisgarh, 2002 LawSuit (SC) 459, in

support of his contentions.

10. Mr. Khan also relies upon 'Medical Jurisprudence and

Toxicology by Dr. Sarla Gupta (Agrawal) 2016 Edition, to submit that

most of the characteristics in the case of death by strangulation were

present and there was no infirmity in the medical evidence that this

was not a case of suicide, but a case of homicide by strangulation.

11. Mr. Khan submitted that there was evidence of

harassment as well as an illicit affair between the appellant and the

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neighboring lady. He submits that this is the motive for eliminating

Rajni. He submits that in this case the chain of circumstance was

complete and the conviction was quite correctly recorded. Mr. Khan

admitted that there may be even some lapses on the part of

investigating agency when it comes to the suicide note. He, however,

submitted that the appellant cannot take any undue advantage of

such lapses and the conviction need not be reversed. Mr. Khan

learned APP, for all the aforesaid reasons, submitted that this appeal

may be dismissed.

12. The rival contentions now fall for our determination.

13. This is a case based on circumstantial evidence and

therefore certain well-established principles in the matters of

evaluation of circumstantial evidence will have to be borne in mind.

Such principles have been crystallized in Sharad Birdhichand

Sarda .vs. State of Maharashtra (1984) 4 SCC 116, at paragraphs

153 and 154 which read as follows :

"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

7 Criminal Appeal No.557.18.odt

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 Sahebrao Bobade .vs. State of Maharashtra, where the observations were made : [SCC p.807, para 19 : SCC (Cri) p. 1047]

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

14. In this case, from the perusal of the impugned judgment

and order, we find that the learned Sessions Judge has failed to

enumerate the precise circumstances upon which he has relied to

convict the appellant under Sections 302 and 201 of the Indian Penal

Code. However, the conviction appears to be mainly based on the

following circumstances:-

(i) That, the appellant and deceased Rajni were together in their portion of the house on the night of the incident, along with their minor daughter;

(ii) That, the medical evidence suggested that this was a case of homicidal death by strangulation and not a case of suicidal death.

8 Criminal Appeal No.557.18.odt

15. The learned Sessions Judge has discarded the evidence

of both Investigating Officer (PW-17) as well as the report of the

handwriting expert that the suicide note found on the dead body of

Rajni and the suicide note pasted on the kitchen door was in the

handwriting of Rajni, on the ground that the investigating agency

had failed to show this note or the admitted or alleged admitted

writing of Rajni to Rajni's parents, brother, and sister. The learned

Sessions Judge has reasoned that there was no clear evidence about

the notebook handed over by the appellant's brother to the

investigating agency being a notebook belonging to Rajni or

containing admitted handwriting of Rajni. The learned Sessions

Judge has reasoned that this was a lapse on the part of the

investigation agencies, but that the prosecution case ought not to

suffer on account of such lapse.

16. As noted earlier, one of the first principles in a case based

on circumstantial evidence is that the circumstance from which the

conclusion of guilt is to be drawn should be "fully established". This

is elaborated by the Hon'ble Supreme Court by observing that the

circumstances 'must' or 'should be established and not merely that

the circumstance 'may' be established. There is a long-distance

between 'must' and 'may' and this distance has to be traversed by the

prosecution based on clear and cogent evidence.

9 Criminal Appeal No.557.18.odt

17. Therefore, even before we examine whether, the two

circumstances relied upon by the learned Sessions Judge for

convicting the appellant constituted a chain of evidence so complete

and not to leave any reasonable ground for the conclusion consistent

with the innocence of the appellant, we must address ourselves to

the issue, as to whether these two circumstances can be said to have

been 'fully established' in this case.

18. The first circumstance is that the appellant and Rajni

were together on the night of the incident in the portion of the house

separately occupied by them. On this, there seems to be no difficulty

and the prosecution can be said to have established this circumstance

quite fully. The report of the death, in this case, was lodged by

Rajesh Bhaurao Mahatme (PW-6), the younger brother of the

appellant. In his report itself, he has stated that the appellant and

Rajni were residing in a separate portion of the house and were

together on the night of the incident.

19. The second circumstance concerns the opinion recorded

the postmortem report and the testimony of Dr. Mulchand Gedam

(PW 14) to the effect that this was a case of homicidal death due to

the strangulation of Rajni and not a case of suicidal death.

10 Criminal Appeal No.557.18.odt

20. The postmortem report (Exh.56) refers to the following

injuries sustained by Rajni:-

(a) Ligature mark present over neck 1 cm above the level of thyroid cartilage, running obliquely upwards towards right angle of mandible and horizontally backward toward posterior aspect of neck on left side, it is grooved and pale of total length 25 cm and absent over right lateral and right postero lateral aspect of neck for 9 cm, situated 7 cm below tip of chin, 9 cm below left mastoid, 4 cm below right angle of mandible and maximum breadth 1.5 cm over front of neck in midline.

(b) Ligature mark is pale, yellowish parchment like horizontally placed Ligature mark present over neck at the level of thyroid cartilage running horizontally backwards on both side completely encircling the neck of total length 33 cm and maximum breadth is 1 cm on right lateral aspect of neck, situated 8 cm below tip of chin, 6 cm below right mastoid process, 9 cm below left mastoid process and 11 cm below occipital protuberance.

(c) Ligature mark is reddish brown parchment like horizontally placed ligature mark present over front of neck, extending upto both lateral aspect of neck, intermingling with above injury no.2 on lateral aspect of left side of neck, situated 1 cm below injury no.2 of total length 20 cm and maximum breadth is 3 cm over front of neck, situated 9 cm below tip of chin and 8 cm below right mastoid process.

11 Criminal Appeal No.557.18.odt

(d) Ligature mark is reddish brown and parchmentised cresentric abrasion present over right angle of mandible of size 0.7 cm red in colour.

The postmortem report states that injury no.1 is postmortem injury

and injury nos.2, 3, and 4 are antemortem injuries. The postmortem

report opines the probable cause of death as 'ligature strangulation.'

21. Dr. Mulchand Gedam (PW 14) has deposed in this matter

in the context of the above postmortem report prepared by him. He

maintained that injury nos.2 and 3 mentioned in column no.17 and

corresponding internal injuries in neck mentioned as injury nos.1 to

3 in column no.20 of the postmortem report are antemortem and

those were sufficient in the ordinary course of nature to cause death.

He opined that the cause of the death of Rajni was ligature

strangulation. He also opined that some soft material like a scarf

(dupatta) or saree might have been used for causing such injuries

leading to the death.

22. PW-14 was extensively cross-examined in this matter.

He admitted to having seen the photographs of the dead body sent to

him by the police at the time of sending the dead body for autopsy.

He admitted that partial hanging is also a type of hanging. He

admitted that the photographs showed that the feet of that body

12 Criminal Appeal No.557.18.odt

were bent and in such case, there may be eventuality of partial

hanging. He admitted that he did not measure the length of the

neck of the dead body or the weight of the dead body. He admitted

that even 4 to 5 kg weight is sufficient for hanging. He admitted that

he did not examine the neck of the dead body with a microscope.

23. PW-14 admitted that apart from a neck injury, he did not

notice any other resistance marks on the dead body. He admitted

that he did not notice any skin, blood, or any foreign material

beneath the nails of fingers of the dead body. He volunteered that he

had preserved the nails of the dead body for the C.A. report. In this

case, the CA report, on this aspect, is negative, in the sense that it

does not support the prosecution version. He admitted that he did

not notice any injury of bangles on the hands of the dead body. He

deposed that the tongue was clinched between lower and upper

teeth and that, he did not mention the color of the tongue in the

postmortem report.

24. PW-14 admitted that the hyoid bones of the dead body

were intact. He also deposed that in the case of hanging, hyoid

bones are often found broken, but in case of strangulation, hyoid

bones may not be broken. He admitted that he did not send the

hyoid bones for an expert report. PW-14 admitted that in the

13 Criminal Appeal No.557.18.odt

postmortem report he did not mention about cervical vertebrae of

the dead body. He admitted that if the cervical vertebrae are

fractured, then death can occur quickly. He admitted that he did not

mention in the postmortem report whether the larynx and trachea

were fractured or not. He admitted that he did not mention anything

in the postmortem report about carotid arteries. He admitted that he

did not mention anything about the blood coming out of the nose,

mouth, and ear, in the postmortem report.

25. PW-14 was confronted with the books on Medical

Jurisprudence by Dr. Gupta and Dr. Agrawal. He deposed that he

agreed with the views expressed by these authors. PW-14 was also

confronted with the books on Medical Jurisprudence by Dr. Dogra

and Dr. Rudra. He stated that he agreed with the views of these

authors. PW-14 was confronted with the views of such authors on

the aspect of marks of saliva trickling down from one or other angles

of the mouth to indicate that the body was hanged while it has a life.

Finally, PW-14 also admitted that horizontal ligature marks can be

possible in the case of hanging as well as in partial hanging.

26. Now one thing is clear from the deposition of PW-14 is

that this doctor failed to perform or cause to be performed the

normal and the well-accepted tests for determining, whether this was

14 Criminal Appeal No.557.18.odt

a case of strangulation or by hanging. The learned counsel for the

parties have referred us to the various books on medical

jurisprudence. In the textbook of Medical Jurisprudence and

Toxicology by Jaising P Modi, 2011 Edition, there is a chart that lists

almost 15 aspects that are required to be examined to determine,

whether the death was on account of hanging or strangulation.

These books lay considerable emphasis on the status of carotid

arteries, larynx trachea, hyoid bone, and some other matters.

27. As noticed earlier, in the present case, PW-14 in his

deposition, admitted that hyoid bone in the dead body was intact,

even though Modi's Jurisprudence suggests that in case of

strangulation, there is a fracture of the larynx trachea and hyoid

bone. The fracture of the larynx and trachea is very rare in case of

hanging and may be found in case of judicial hanging. PW-14

admitted to not having examined whether the larynx and trachea

were fractured or not.

28. The textbook of Medical Jurisprudence suggests that in

case of strangulation, carotid arteries and internal coats are

ordinarily ruptured. PW-14 admitted that he had not referred to the

status of the carotid artery or the cervical vertebrae in the

postmortem report. The medical literature points out that the

15 Criminal Appeal No.557.18.odt

fracture or dislocation of the cervical vertebrae is quite rare in cases

of strangulation, though in cases of hanging, there is fracture and

dislocation of the cervical vertebrae.

29. The evidence on record shows that there were no

scratches, abrasions, or bruises on the face, neck, and other parts of

the body of Rajni. The Medical Jurisprudence suggests that

scratches, abrasions, fingernail marks, and bruises on the face, neck,

and other parts of the body are usually present in the case of

strangulation. PW-14, in this case, did not even bother to measure

the length of the neck of the dead body or weight of the dead body,

which are again some of the factors that go into determining,

whether the death was due to strangulation or hanging.

30. Having regard to the above factors, we do not think that

it can be safely concluded that the prosecution, in this case, has fully

established that this was a case of death by strangulation and not a

case of suicide by hanging. The evidence on record, at the highest,

raises suspicion on this aspect, but this suspicion in such matters is

no substitute for proof. The prosecution, in this case, has not

traversed the distance between 'must be' and 'maybe' when it comes

to this circumstance.

16 Criminal Appeal No.557.18.odt

31. In the case of Balaji Dhule (supra), the Hon'ble Supreme

Court has held that the conviction based only on the opinion of the

doctor or the postmortem report for an offense under Section 302 of

the Indian Penal Code may not be proper. The postmortem report

should be in corroboration of other evidence on record. Similarly,

very recently, the Hon'ble Supreme Court in the case of Nagendra

Sah (supra) has held that conviction cannot be sustained only on an

opinion of the medical practitioner, who conducted an autopsy and

gave a report on the cause of death. The Hon'ble Supreme Court

followed the decision in Balaji Dhule (supra), in aid of this

proposition.

32. In Bhajan Singh and others (supra), the Hon'ble Supreme

Court was concerned with the conviction recorded by the Sessions

Judge, who, in the course of his judgment, had observed that the

doctor, who performed postmortem examination, was careless since

he failed to send the two dead bodies to the Professor of Anatomy,

who might have been in a position to express an opinion after

examining the hyoid bone and cervical vertebra, as to whether the

death of the two persons was due to strangulation. The learned

Sessions Judge had observed that although that would have been

more appropriate on the part of the doctor to have sent the dead

bodies to an anatomy expert, the fact that the doctor did not do so

17 Criminal Appeal No.557.18.odt

cannot be a ground of drawing an adverse inference against the

prosecution. The Hon'ble Supreme Court, however, disproved this

approach and held that such lapse cannot be a ground for drawing

an inference adverse to the accused. The accused cannot be made to

suffer because of that omission of the doctor. The Hon'ble Supreme

Court held that it would indeed be contrary to all accepted principles

to give the benefit of that omission to the prosecution. The onus in a

criminal trial is upon the prosecution to prove the guilt of the

accused. If there be any gap or lacuna in the prosecution evidence,

the accused and not the prosecution would be entitled to get the

benefit of that.

33. In this case, even if we were to proceed on the basis that

the prosecution has established the circumstance that the death of

Rajni was not suicidal, but was homicidal due to her strangulation,

the question still remains, as to whether the appellant was the author

of this crime.

34. Mr. Khan as well as the learned Sessions Judge almost

exclusively relied on the provisions of Section 106 of the Evidence

Act in this regard.

35. In Shivaji Patil (supra), the Hon'ble Supreme Court has

18 Criminal Appeal No.557.18.odt

explained that it is well settled that Section 106 of the Evidence Act

does not directly operate against either a husband or wife staying

under the same roof and being the last person seen with the

deceased. Section 106 of the Evidence Act does not absolve the

prosecution of discharging its primary burden of proving the

prosecution case beyond a reasonable doubt. It is only when the

prosecution has led evidence which, if believed, will sustain a

conviction, or, which makes out a prima facie case, that the question

arises of considering facts of which the burden of proof would lie

upon the accused.

36. In Shivaji Patil (supra), the Hon'ble Supreme Court

referred to Mod's Medical Jurisprudence and Toxicology, in which,

it was observed that homicidal hanging, though rare, has been

recorded. Usually, more than one person is involved in the act,

unless the victim is a child or feeble, or is rendered unconscious by

some intoxicating or narcotic drug. In a case, where resistance has

been offered, marks of violence on the body and marks of a struggle

or footprints of several persons at or near the place of the occurrence

are likely to be found. In the present case as well, no marks are

suggesting of violence or struggle. Besides, the portion of the house

in which the couple lives and the portion in which appellant's parents

and brother live, were separated only by a wall. There is no evidence

19 Criminal Appeal No.557.18.odt

of any hues or cries as held. In this case, the prosecution has not

charged the parents or the brother with conspiracy or abetment.

Rather the evidence of Rajni's family members suggests that the

appellant's parents were supportive of her. Even now the minor

daughter lives with the appellant's family and not with Rajni's family.

All these circumstances should have been considered before relying

on Section 106 of the Evidence Act.

37. The observations in paragraphs 20 to 23 of Shivaji Patil

(supra) are most relevant in the context of the discussion on the

provisions of Section 106 of the Evidence Act and therefore, the same

are reproduced for the convenience of reference:-

"20. That leads us to the reliance placed by the High Court as well as the trial court on the provisions of Section 106 of the Evidence Act. In Subramaniam, this Court had occasion to consider the similar case of the husband and wife remaining within the four walls of a house and death taking place. It will be relevant to refer to the following observations of this Court:-

"23. So far as the circumstance that they had been living together is concerned, indisputably, the entirety of the situation should be taken into consideration. Ordinarily when the husband and wife remained within the four walls of a house and a death by homicide takes place it will be for the husband to explain the circumstances in which she might have died. However, we cannot lose sight of the fact that although the same may be considered to be a strong circumstance but that by alone in the absence of any evidence of violence on the deceased cannot be held

20 Criminal Appeal No.557.18.odt

to be conclusive. It may be difficult to arrive at a conclusion that the husband and the husband alone was responsible therefor."

21. In Subramaniam, reliance was placed on behalf of the State on the judgments of this Court in Trimukh Maroti Kirkan v. State of Maharashtra and Ponnusamy v. State of Tamil Nadu. This Court observed thus:-

"26. In both the aforementioned cases, the death occurred due to violence. In this case, there was no mark of violence. The appellant has been found to be wholly innocent. So far as the charges under Section 498-A or Section 4 of the Dowry Prohibition Act is concerned, the evidence of the parents of the deceased being PW 1 and PW 2 as also the mediators, PWs 4 and 5 have been disbelieved by both the courts below. That part of the prosecution story suggesting strong motive on the part of the appellant to commit the murder, thus, has been ruled out......"

22. It will also be relevant to refer to the following observations of this Court in the case of Gargi :-

"33.1. Insofar as the "last seen theory" is concerned, there is no doubt that the appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The trial court and the High Court have proceeded on the assumption that Section 106 of the Evidence Act directly operates against the appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das v. State of Bihar

21 Criminal Appeal No.557.18.odt

in the following: (SCC p. 197, para 10)

"10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused.""

23. It could thus be seen, that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused.

38. Now, in this case, we cannot even say that the two

circumstances established by the prosecution are consistent only with

the hypothesis of the guilt of the accused or are not explainable or

any other hypothesis, except that the accused is guilty. The two

circumstances cannot, in the facts of the present case, be regarded as

of conclusive nature and tending to incriminate the appellant. These

circumstances do not completely exclude possible hypotheses put

forth on behalf of the appellant. In this case, the chain is also not so

22 Criminal Appeal No.557.18.odt

complete as not to leave any reasonable ground for the conclusion

consistent with the innocence of the appellant or to show that in all

human probability, the act must have been done by the present

appellant.

39. This is because, in this case, two suicide notes were

found. One of the notes was on the body of Rajni and the other was

pasted on the kitchen door. The investigating officer (PW 17), in the

present case, has deposed that he seized these two suicide notes from

the spot of the incident. He has deposed about the seizure of two

notebooks containing the admitted writing of Rajni as well the

appellant. He deposed that he sent this material for the opinion of

the handwriting expert. The report of the handwriting expert is

produced on record. The handwriting expert opined that the suicide

note is in the handwriting of the person who had made the admitted

writings (Exs. N1 to N10). The handwriting expert has also opined

that the suicide notes are not in the handwriting of the appellant.

The suicide notes completely exonerate the appellant and his family

members.

40. The learned Sessions Judge has discarded these suicide

notes on the ground that there were some lapses in the investigation

on the part of the investigating agency. The learned Sessions Judge

23 Criminal Appeal No.557.18.odt

has reasoned that the notebook, which was supposed to contain the

admitted handwriting samples of Rajni, was handed over by the

brother of the appellant to the investigating agency. Further, the

investigating officer had failed to show the suicide notes or this

notebook containing the alleged admitted handwriting of Rajni to

her father, mother, and brother. Therefore, the learned Sessions

Judge reasoned that there was no opportunity for these witnesses to

verify whether the suicide notes or the admitted handwritings were

indeed of Rajani. On this basis, the learned Sessions Judge discarded

the suicide notes as also the opinion of the handwriting expert.

41. According to us, the approach of the learned Sessions

Judge was not proper. In the first place, assuming that there was any

lapse on the part of the investigating officer, the benefit of such lapse

cannot be extended to the prosecution. Besides, we find that the

learned Sessions Judge did not read the evidence of the investigating

officer (PW-17) in paragraph 9, where PW-17 has clearly deposed

that since he had some suspicion about the suicide note, he showed

the suicide note to the father, mother, and brother of the victim.

Therefore, there was no lapse as such on the part of the investigation

agency. In any case, lapse if any cannot be a good ground to exclude

evidence favorable to the accused or to draw some adverse inference

against the accused.

24 Criminal Appeal No.557.18.odt

42. Since this is a case of circumstantial evidence if the

prosecution were to prove the motive that would supply a link in the

chain of circumstantial evidence. In Anwar Ali .vs. State of H.P.

(2020) 10 SCC 166 referred to by the Hon'ble Supreme Court in

Shivaji Patil (supra), it is held that the absence of motive in a case

depending on circumstantial evidence is a factor that weighs in favor

of the accused. For this, the Hon'ble Supreme Court also relied on

Babu .vs. State of Kerala, (2010) 9 SCC 189.

43. In the present case, the prosecution has failed to prove

the motive, even if we go by the test of preponderance of

probabilities. In the first place, the prosecution tried to urge that the

appellant used to harass Rajni and even make demands of dowry.

For this purpose, the prosecution was launched under Section 498-A

of the Indian Penal Code. The learned Sessions Judge, on evaluating

the entire evidence on this aspect, has disbelieved the prosecution

witnesses and acquitted the appellant of the offense under Section

498-A of the Indian Penal Code.

44. The father (PW-2), the brother (PW-3), and the sister

(PW-4) of Rajni have deposed in this matter, but their testimonies are

riddled with contradictions, omissions, and improvements. Rajni's

25 Criminal Appeal No.557.18.odt

father PW-2, in terms, admitted that one year before this incident,

Rajni tried to pour kerosene on her person and commit suicide. He

also admitted that at no stage before the present incident, Rajni

lodged any report with the police against the appellant. Rajni's sister

PW-4, however, went to the extent of denying that Rajni had ever

attempted to commit suicide in the past. She however admitted that

Rajni was short-tempered. Rajni's brother PW-3 also admitted that he

had no personal knowledge that the appellant used to consume

liquor or that he was having an affair with the neighboring lady.

45. Secondly, even the evidence on the alleged affair with

the neighboring lady hardly inspires any confidence. PW-2, PW-3,

and PW-4 have very vaguely stated that Rajni had informed them

about the affair between the appellant and the neighboring lady.

The prosecution examined a witness to prove the alleged illicit affair

between the appellant and neighboring lady, however, even this

witness did not support the prosecution version. Thus, there is

neither any evidence of any cruelty nor demands of dowry by the

appellant nor any evidence about the affair between the appellant

and the neighboring lady that could be regarded as some motive in

the crime.

46. In this state of evidence, we do not think it safe to

26 Criminal Appeal No.557.18.odt

sustain the conviction under Section 302 of the Indian Penal Code.

At the highest, this could be said to be a case that raises some

suspicion. However, it is well settled that suspicion can never take

place of proof in a criminal trial. Similarly, we think that the learned

Sessions Judge, in this case, has failed to appreciate and apply the

well-settled principles in criminal jurisprudence that where, on the

evidence two possibilities are available or open, one which goes in

favor of the prosecution and the other which benefits an accused, the

accused is undoubtedly entitled to the benefit of the doubt.

47. In Kali Ram .vs. State of H.P., (1973) 2 SSS 808, the

Hon'ble Supreme Court explained that another golden thread which

runs through the administration of justice in criminal cases is that if

two views are possible on the evidence adduced in the case, one

pointing to the guilt of the accused and the other to his innocence,

the view which is favorable to the accused should be adopted. This

principle has special relevance in cases wherein the guilt of the

accused is sought to be established by circumstantial evidence. In

Devi Lal .vs. State of Rajasthan, (2019) 19 SCC 447, the Hon'ble

Supreme Court observed that in the case of circumstantial evidence,

if two views are possible on the case of record, one pointing to the

guilt of the accused and the other his innocence, the accused is

indeed entitled to have the benefit of one which is favorable to him.

27 Criminal Appeal No.557.18.odt

Therefore, applying such well-settled principles in evaluating the

evidence on record, we think that this is a matter where the benefit

of reasonable doubt must be extended to the appellant.

48. Therefore, we allow this appeal and set aside the impugned

judgment and order, as also the conviction recorded therein.

49. The appellant is directed to be released forthwith unless he

is required in connection with any other matter.

50. There shall be no order for costs.

              (Pushpa V. Ganediwala, J.)                         (M.S. Sonak, J.)




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