THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
DATED : 5th August, 2021
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DIVISION BENCH : THE HON‟BLE MR. JUSTICE JITENDRA KUMAR MAHESHWARI, CHIEF JUSTICE
THE HON‟BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl.A. No.22 of 2019
Appellant : Santosh Kumar Pandey
versus
Respondent : State of Sikkim
Appeal under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mrs. Gita Bista, Advocate (Legal Aid Counsel) for the Appellant.
Mr. Sudesh Joshi, Public Prosecutor with Mr. Sujan Sunwar,
Assistant Public Prosecutor for the Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Appellant was convicted of the offences under
Sections 302/201 of the Indian Penal Code, 1860 (for short, ―IPC‖)
in Sessions Trial Case No.13 of 2018, vide Judgment dated 25-09-
2019 and sentenced to undergo ─
(i) imprisonment for life and to pay a fine of Rs.10,000/-
(Rupees ten thousand) only, under Section 302 of the IPC;
(ii) imprisonment for a term of three years and to pay a fine of Rs.5,000/- (Rupees five thousand) only, for the offence under Section 201 of the IPC, vide Order on Sentence, dated 26-09-2019.
The sentences of imprisonment were ordered to run concurrently
and both sentences of fine bore default clauses of imprisonment.
Set off was granted in terms of Section 428 of the Code of Criminal
Procedure, 1973 (for short, ―Cr.P.C.‖).
Crl.A. No.22 of 2019 2
Santosh Kumar Pandey vs. State of Sikkim
2. Impugning both, the Judgment and Order on Sentence,
Learned Counsel for the Appellant advanced the contentions that
the Learned Trial Court erred in convicting the Appellant as the
Prosecution had failed to establish its case beyond reasonable
doubt, instead the Court shifted the burden to the Appellant
against the mandate of law. That, the alleged weapon of offence
M.O.I, was not recovered from the rented room of the Appellant,
but from an open, unoccupied and accessible adjacent room, sans
disclosure statement of the Appellant. P.W.6 and P.W.8 who were
present during recovery of M.O.I by the Police and P.W.10 and
P.W.12 the witnesses to the seizure of M.O.I. gave no evidence to
establish that M.O.I was the weapon of offence. P.W.15 and
P.W.17, the Investigating Officer (I.O.) in the Unnatural Death
(UD) Case and in the instant Case respectively, concluded that the
burn injuries on the deceased was caused by M.O.I but furnished
no proof on this aspect. This allegation was also categorically
belied by the RFSL Report, Exhibit 28, which the P.W.17 identified
and admitted that as per Exhibit 28 human skin or foreign particles
were not found on M.O.I. That, the RFSL Expert was not examined
as a Prosecution witness and the Medico Legal Consultant, P.W.14
failed to reveal his professional experience in his evidence. He
found cigarette burns on the body of the deceased in addition to
the injuries allegedly caused by M.O.I, but no investigation
regarding the cigarette burns was carried out. The cause of death
said to have been by vasovagal shock was not linked to the
Appellant by any cogent evidence, neither his intention nor motive
proved. Finger prints were not lifted by the I.O. from the place of
occurrence or from M.O.I to inculpate the Appellant. That, P.W.15, Crl.A. No.22 of 2019 3
Santosh Kumar Pandey vs. State of Sikkim
the Complainant in the instant case, had conducted the inquest
along with P.W.13 the Sub-Divisional Magistrate in the U.D. Case
and also a large part of the investigation in the instant case, hence
being both the Complainant and the I.O., his investigation is unfair
and biased. Besides, the original complaint lodged by P.W.1 on the
basis of which the UD Case was registered at the Singtam P.S. was
not made a part of the records of this case, rendering the
Prosecution case suspect from its inception. Hence, both the
impugned Judgment and Order on Sentence deserve to be set
aside and the Appellant set at liberty.
3. Per contra, Learned Public Prosecutor while supporting
the conclusion arrived at by the Learned Trial Court submitted that
the circumstantial evidence on record unerringly points to the guilt
of the Appellant. That, P.W.15 was in fact the I.O. in Singtam P.S.
U.D. Case No.10 of 2018, dated 25-04-2018 and not in the instant
case and the FIR lodged in the UD Case by P.W.1 is of no relevance
to this case as an independent investigation under Section 174 of
the Cr.P.C. was carried out by P.W.15 in that matter. That, the 11
(eleven) burn injuries found on the body of the victim has been
opined by P.W.14 to have been caused by M.O.I and the recovery
of the article in the room adjacent to the Appellant's tenanted room
fortifies the Prosecution case. That, the death of the victim was
not on account of electrocution as falsely claimed by the Appellant
but was the result of the injuries inflicted by him upon the
deceased by M.O.I. The motive of the Appellant is writ large in the
Section 164 Cr.P.C. statement of P.W.6 which supports the
Prosecution case. Hence, the Judgment of the Learned Trial Court
be upheld and the Appeal be dismissed.
Crl.A. No.22 of 2019 4
Santosh Kumar Pandey vs. State of Sikkim
4. In order to examine the rival contentions raised in the
Appeal, we may consider the chronology of events of the
Prosecution case. On 25-04-2018, at 08:10 hours, P.W.1 the
Panchayat President of the concerned area, lodged a Complaint
before Singtam P.S. informing them of the death of the victim, the
wife of the Appellant, in the couple's rented room. P.W.1 had
received telephonic information about the death from P.W.7, the
landlord of the Appellant at around 6:30 a.m. the same morning.
P.W.15 thereupon reached the place of occurrence following which,
Singtam P.S. UD/Case No.10/2018, dated 25-04-2018, under
Section 174 of the Cr.P.C, was duly registered and endorsed to him
for investigation. During investigation, a Magisterial inquest was
held by P.W.13, the Sub-Divisional Magistrate, who suspected foul
play in the death of the deceased. P.W.15, for his part, on noticing
several burn injuries on the deceased suspected that she had been
electrocuted and, therefore, requisitioned for P.W.9 an Electrical
Engineer to examine the electrical wiring in the tenanted room.
P.W.9 on inspection found no short circuit or any fault in the
electrical wiring. Thereafter, P.W.15 seized some articles (M.O.II
to M.O.XIV) from the tenanted room and a rusted iron rod (M.O.I)
measuring 2.6 ft. concealed in a pile of wood from the adjacent
vacant room, allegedly the weapon of offence. Based on his
investigation, he suspected that the Appellant had caused the
victim's death and accordingly lodged the FIR, Exhibit 18.
5. On receipt of Exhibit 18, Singtam P.S. Case No.23/
2018, dated 25-04-2018, under Sections 302/201 of the IPC was
registered against the Appellant and his arrest effected the same
day. Witnesses were said to have been re-examined by P.W.17, Crl.A. No.22 of 2019 5
Santosh Kumar Pandey vs. State of Sikkim
the I.O., for the purposes of this case and Exhibits seized in the
U.D. Case and in the instant matter allegedly were forwarded to
the RFSL, Saramsa, East Sikkim for scientific analysis. P.W.17
during his investigation found that the Appellant worked in a
nearby tissue paper factory and he had rented one room in the
house of P.W.7 where he lived with the deceased and their girl
child, aged about 18 (eighteen) months at the relevant time. On
the morning of 25-04-2018, the Appellant informed P.W.6 (the wife
of P.W.7) that his wife had passed away due to electrocution.
Investigation further revealed that Criminal Case [Exhibit 23, in
three pages (collectively)] had been registered against the
Appellant on 26-10-2012 at the Hardi Police Station, Uttar Pradesh,
under Sections 498A/323 of the IPC and Sections 3/4 of the Dowry
Prohibition Act, 1961, for harassing the deceased. A Compromise
vide the same Exhibit was effected before the Family Court at
Bahraich, Uttar Pradesh, on 21-06-2014. As per the I.O. the
statement of witnesses recorded by him indicated that the
Appellant used to torture the victim both physically and mentally.
On conclusion of his investigation Charge-Sheet was submitted
against the Appellant under Sections 302/201 of the IPC.
6. Charges were framed against the Appellant by the
Learned Trial Court under Sections 302 and 201 of the IPC where
he took a plea of ―not guilty‖, whereupon 17 (seventeen)
Prosecution witnesses took the stand in the Court. The Appellant
was thereafter examined under Section 313 of the Cr.P.C. where
he claimed innocence and instead asserted that there were naked
electric wires in his room which had not been secured by P.W.7 Crl.A. No.22 of 2019 6
Santosh Kumar Pandey vs. State of Sikkim
despite the Appellant's request. His wife thus died due to
electrocution.
7. In the impugned Judgment, the following factors
weighed with the Learned Trial Court while convicting the
Appellant, viz.;
(a) The FIR and the identity of the Appellant had been proved;
(b) The injuries over the body of the deceased had been proved;
(c) That the Appellant had failed to give cogent reasons for the injuries which were found over the body of the deceased;
(d) The seizure of M.O.I the alleged weapon of offence was proved;
(e) The evidence of P.W.9 proved that there was no faulty wiring;
(f) The evidence of P.W.14, the Medico Legal Consultant who opined that the injuries on the body of the deceased matched the patterns on M.O.I.;
(g) The Section 164 of Cr.P.C. statement of P.W.6.
8(i). We are unable to agree with the findings of the
Learned Trial Court for the reasons enumerated in the discussions
that ensue hereinbelow.
(ii) It is necessary to notice firstly that there were no eye-
witnesses to the offence, consequently, the Prosecution case is
based entirely on circumstantial evidence and hence, motive
assumes importance. We hasten to add that even if motive is not
established the Appellant without doubt can be convicted provided
each of the circumstances that allegedly link the crime to the
Appellant is proved. The Prosecution is thus to prove beyond
reasonable doubt that all links in the chain of circumstances point Crl.A. No.22 of 2019 7
Santosh Kumar Pandey vs. State of Sikkim
unerringly to the guilt of the accused and none else. In Sharad
Birdhichand Sarda vs. State of Maharashtra1 the Hon'ble Supreme
Court while discussing a case based on circumstantial evidence
observed 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.
........................................................................................
(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."
9(i). It is now to be examined as to whether the Prosecution
case was able to withstand the test extracted supra to establish its
case.
(ii) P.W.1, P.W.2, P.W.4, P.W.5, P.W.6 and P.W.8 all saw
injuries on various parts of the body of the deceased which they
described as burn injuries except for P.W.1. She did not describe
the injuries. P.W.3 was the only witness to specify that the injuries
were burn injuries caused by an ―iron rod‖, but could not say
whether the injuries were freshly inflicted. P.W.5 saw M.O.I
1 (1984) 4 SCC 116 Crl.A. No.22 of 2019 8
Santosh Kumar Pandey vs. State of Sikkim
recovered from outside the place of occurrence, she is not a
seizure witness. P.W.6 and P.W.8 saw M.O.I in the next room
below wooden planks. They are also not witnesses to the seizure.
According to P.W.6, it was a ―black colour rod‖. P.W.8 could not
identify M.O.I during trial, as the same rod seen by her on that
day. P.W.10 and P.W.12 were witnesses to the seizure of M.O.I
and M.O.II to M.O.XIV. M.O.I, according to them, was seized from
the place of occurrence. Their evidence about the place of
recovery of M.O.I is in direct contradiction to the evidence of P.Ws
5, 6, 8 as seen above and P.W.15. P.W.15 the I.O. in the UD case
recovered and seized M.O.I, vide Exhibit 6, the Seizure Memo, he
testified that he found M.O.I, one ―iron rod rusted‖ measuring 2.6
ft. in length, concealed between piles of wood in the room adjacent
to the place of occurrence. P.W.14 the Medico Legal Consultant
who was shown M.O.I on 28-04-2018, stated that M.O.I had the
presence of black soot over one end, none of the other P.Ws, not
even P.W.15 had seen black soot on M.O.I. That having been said,
it emerges from the evidence that M.O.I was seized from an
adjacent room not rented by the Appellant and accessible to all and
sundry. We are aware that articles recovered from an open and
accessible place cannot be disregarded only for that sole reason,
however, M.O.I was recovered sans disclosure statement of the
Appellant and the recovery is suspicious in view of the evidence as
has emerged supra. P.W.15 admitted that there were construction
materials stored in the adjacent room, therefore, how P.W.15
conclusively opined that M.O.I was the weapon of offence has not
been explained nor is there evidence in this context for the Court
to draw succour from. According to P.W.15, he affixed green tape Crl.A. No.22 of 2019 9
Santosh Kumar Pandey vs. State of Sikkim
on the M.O.I for identification. The evidence of P.Ws 5, 6, 8, 10,
12 and 14 do not lend support to the evidence of P.W.15 regarding
the green tape, denuding the evidence of credence. The cross-
examination of P.W.17 revealed that M.O.I was seized by P.W.15,
therefore, his testimony about the seizure of M.O.I is hearsay only,
although he was the I.O. of the instant case. He thus fails to
buttress the Prosecution case with regard to the seizing of M.O.I.
Hence, in the first instance, contradictions have emerged in the
evidence of the P.Ws supra, with regard to the place of recovery of
M.O.I and the various descriptions ascribed to the object render
the Prosecution evidence with regard to M.O.I unreliable.
(iii) P.W.14, the Medico-Legal Consultant conducted the
autopsy of the victim on 28-04-2018. The victim had passed away
on 25-04-2018. His evidence pertaining to the injuries is as
follows;
Ante mortem injuries
(1) Linear patterned burnt injuries (7 x 0.8 cm) extending from right side neck (4 cm) below the right ear lobe and downwards and posteriorly down the neck. (2) Multiple criss cross burnt injury placed over middle chest towards the upper central part of the chest with patterned marks whereby each gap is spaced at approximately 0.5 cm apart.
(3) Circular burnt marks (12 in numbers) placed over the front upper chest with a diameter of (0.5 x 0.6 cm) suspected cigarette burnt marks.
(4) Longitudinal burnt skin over right clavicle measuring 1.8 x 1 cm - the burnt wound involves the skin, dermis and also the muscles (deep burn). (5) Multiple circular and linear burn injuries (cigarette burn injuries) placed over the dorsun of right hand involving 60-80% of dorsun of hand. The injuries measures over an area of 8 x 6 cm.
(6) Multiple patterned linear injuries (burnt) over the right lateral aspect of forearm, involving the elbow joint. The wound measures 7 x 1.5 cm and 6.5 x 1.2 cm with involvement of skin, dermis and muscles.
Crl.A. No.22 of 2019 10
Santosh Kumar Pandey vs. State of Sikkim
(7) Multiple circular and linear burn injuries 8 x 1.5 and 5.5 x 1 cm placed over right upper arm involving the elbow and invoking skin, dermis and muscles. (8) Linear patterned over the right lower chest. The injuries shows peeling of skin with burn margins and measures 13 x 0.5 cm.
(9) Linear patterned injuries 10 x 0.5 cm over the front of abdomen involving the epigastric and right hypocondrium region.
(10) Criss cross burnt linear injuries placed just below injury No.9 and measuring 8 x 0.8 cm and 5 x 0.5 cm.
(11) Multiple circular shaped burnt injuries over the dorsun of the left hand (cigarette burns).
Chest (1) There was severe congestion of lungs present.
Abdomen The stomach contained around 300 ml of fluid and the uterus was non gravid.
At the time of the autopsy I was also shown the suspected weapon of offence by the I.O. which was an iron (building rod) with presence of black soot over one end with patterns matching with the injuries observed over the body of the deceased.
Based on my findings I opined that the time since death was more than 24 to 36 hours and the cause of death to the best of my knowledge and belief was due to severe shock as a result of vasovagal stimulation, due to severe burn.
After the autopsy I handed over to the I.O. of the case the following by duly preparing a handing and taking memo;
Nail clippings of the deceased packed and sealed in an envelope which is not in the Court record.
M.O.I already marked is the said rod which was shown to me by the police in connection with this case.
Exbt.11 is the autopsy report prepared by me. Exbt.11 (a) and (b) are my signatures on the same.
(iv) Neither P.W.15 nor P.W.17 gave reasons as to why the
body was kept in the Singtam Hospital Mortuary from 25-04-2018
(three days) and forwarded for autopsy only on the fourth day, i.e.,
on 28-04-2018. P.W.14, the Medico Legal Consultant admitted
that he could not say exactly as to when the deceased had died nor Crl.A. No.22 of 2019 11
Santosh Kumar Pandey vs. State of Sikkim
did he state the age of the burns on the deceased or whether all
the burn injuries were ante mortem. He also failed to opine
whether the burns caused were homicidal or suicidal, this has to be
considered in view of the evidence of P.W.13 that there were no
marks of struggle on the victim's body and her bangles on both her
wrists and her nose ring on her left nostril were found intact and
unbroken. P.W.13 during inquest recorded 6 (six) number of
injuries on the body of the deceased and admitted under cross-
examination that he did not find struggle marks on the body of the
deceased. No foreign materials were seen on the dead body or
attached to the dead body. He, however, suspected foul play in
the death of the deceased. No reason for such suspicion was
elucidated. Relevantly, Q.12(f) on Exhibit 1 which is the format of
the inquest report is as follows;
f) Do you notice anything in the surroundings to suspect foul play?
P.W.13 in response has written "Foul play suspected,
requiring detailed enquiry and investigation" without answering the
question in the format.
(v) While addressing the question of burns found on the
victim, the definition of burns as detailed in Modi A Textbook of
Medical Jurisprudence and Toxicology, 24th Edition, at Page 485, may
relevantly be referred to, the relevant portion is extracted
hereunder;
"Definition.-Burns are injuries produced by the application of dry heat such as flame, radiant heat or some heated solid substance like metal or glass, to the surface of the body. Injuries caused by friction, lightning, electricity, ultra-violet or infra-red light rays, X-rays and corrosive chemical substances are all classified as burns for medico-legal purposes.
............................................................................."
Crl.A. No.22 of 2019 12
Santosh Kumar Pandey vs. State of Sikkim
At Page 496, it reads thus;
"The Joule Burns (Endogenous burn).-When contract with current is more prolonged, the skin in the mark acquires a biscuit or brown tint and with yet further contract, there may be charring. These changes are due to burning, the so-called Joule burn, a term which distinguishes it from the changes caused by exogenous thermal heat, following contract with high voltage - flash burn. ................................................. When a current is passed at 240 Volts via a one cm diameter brass wire to the skin, tiny discrete pate blisters appear first. Then the blisters grow bigger and coalesced to produce a crater─an electric mark. Ordinarily, these electric marks are roundish with a shallow crater surrounded by a slightly elevated ridge of the skin with a grey ashy based and it may resemble the shape of the object contacted. If the contact is continued for a few more seconds, the skin in the mark turns brown and becomes Joule burn.
................................................................................"
(vi) Thus, in this context, P.W.14 ought to have
differentiated between burns which are caused by heated
substance applied on the surface of the skin and burns caused by
electricity, this differentiation being necessitated on account of the
evidence of P.W.2, P.W.3 and P.W.6 who saw naked wires above
the bed of the deceased and of P.W.9 who said that 230 volts
which could pass through the wires in the room could be fatal. The
Medical Expert thus failed to enlighten the Court as to how the
burn injuries could be classified, viz., electrical burns or burns
applied by other methods. Instead of making a thorough
examination of the burns and classifying it P.W.14 appears to have
been swayed by the Prosecution showing him the iron rod M.O.I as
the alleged weapon of offence.
(vii) The Appellant works in a tissue paper factory, how he
obtained M.O.I is not detailed. If M.O.I was heated and used for
inflicting the burns no investigation has been carried out by
forensic tests to establish whether the heat would burn the alleged
rust seen by P.W.15, on the M.O.I or whether the burn injuries on Crl.A. No.22 of 2019 13
Santosh Kumar Pandey vs. State of Sikkim
the victim's body bore traces of rust neither does the evidence of
P.Ws 13, 14, 15 and 17 shed light on this count. Concededly, no
injuries including burn injuries were found on the Appellant as can
be gauged from the evidence of P.W.15 and P.W.17 who have not
stated that medical examination of the accused revealed injuries on
his person nor did investigation reveal tell tale signs on his wearing
apparels. It is not the Prosecution case that he had changed out of
the clothes worn by him after he allegedly committed the crime
and made the evidence disappear. It is humanly impossible to
imagine that the victim would have quietly accepted the torture
meted out to her without a fight having regard to the common
course of human conduct. Conversely, the Appellant in its Section
313 Cr.P.C. statement under Question No.91 put to him has
categorically stated as follows;
"Q.91 Do you have anything to say which you think should be brought to the notice of this Court ? Do you have any witnesses to produce before this Court in your defence?
Ans: The room where I stayed had all naked wires for which I complained my landlord but he did not take heed of my complains, my landlord used to drink a lot though, I always used to complaint about it my landlord asked me to vacate the room instead of fixing the wires. The injuries were caused due to those wires and electrocution. My wife succumbed to the injuries.
There were a lot of construction materials kept in the adjacent room. I am innocent and have not killed my wife." [Emphasis supplied]
(viii) Reverting to the injuries noted in Exhibit 1, the inquest
report and on Exhibit 11, the autopsy report, the injuries recorded
in the two Exhibits differ, however as held in Javed Abdul Razzaq
Shaikh vs. State of Maharashtra2 in case of inconsistency the medical
report of the doctor will prevail. Nevertheless, even if Exhibit 11
2 (2019) 10 SCC 778 Crl.A. No.22 of 2019 14
Santosh Kumar Pandey vs. State of Sikkim
prevails, the burn injuries have not been related to or linked to
M.O.I by conclusive Prosecution evidence. The doctor deposed
that; "................ the cause of death to the best of my knowledge
and belief was due to severe shock as a result of vasovagal
stimulation, due to severe burn." His cross-examination merely
explains that vasovagal shock is a form of shock where the heart
stops due to severe shock. No further elucidation regarding the
reason of the vasovagal shock or the reason for the burns was
ventured into. He also testified that the patterns on M.O.I matched
the injuries over the body of the deceased without specifying
details for his conclusion. As pointed out by the Learned Counsel
for the Appellant P.W.14 has failed to detail his experience in the
field to enable the Court to assess his competence. In light of the
discussions above, his evidence including the autopsy results fails
to convince this Court.
(ix) The alleged cigarette burn injuries mentioned at Serial
No.5 and Serial No.11 of Exhibit 11 detected by P.W.14 have not
been investigated into by both P.W.15 and P.W.17 despite the
categorical description of the injuries. The length of M.O.I is said
to be 2.6 ft., but the measurement of the diameter is absent.
(x) The cross-examination of P.W.17 elicited the fact that
he had sent M.O.I seized by P.W.15, to the RFSL vide Exhibit 25 to
verify whether there was any human skin or foreign object
thereon. Exhibit 28 was identified by him to be the report
submitted by RFSL, Saramsa, wherein it was stated that "Human
skin or any other foreign particle were not detected in M.O.I".
Thus, it is clear that M.O.I bore no traces of human skin or foreign Crl.A. No.22 of 2019 15
Santosh Kumar Pandey vs. State of Sikkim
particles neither did the forensic examination detect any black soot
on the object. The analyst who prepared the report was not cited
as a Prosecution witness for what appears to be obvious reasons
and thereby prompts this Court to draw an adverse inference
against the Prosecution. If M.O.I was indeed the weapon of
offence and the Appellant had cleaned it of traces of human skin,
then the rust would have been wiped off along with remnants of
human skin, and on recovery by P.W.15 immediately on the
morning that the death was reported, M.O.I would have had no
rust on it but the evidence of P.W.15 is that there was rust on
M.O.I. Finger prints were not lifted from M.O.I or from the crime
scene to definitely incriminate the Appellant as the author of the
crime.
(xi) In Dayal Singh and Others vs. State of Uttaranchal3 the
Supreme Court observed as follows;
"21. The investigating officer, as well as the doctor who are dealing with the investigation of a criminal case, are obliged to act in accordance with the Police Manual and the known canons of medical practice, respectively. They are both obliged to be diligent, truthful and fair in their approach and investigation. A default or breach of duty, intentionally or otherwise, can sometimes prove fatal to the case of the prosecution. An investigating officer is completely responsible and answerable for the manner and methodology adopted in completing his investigation. Where the default and omission is so flagrant that it speaks volumes of a deliberate act or such irresponsible attitude of investigation, no court can afford to overlook it, whether it did or did not cause prejudice to the case of the prosecution. It is possible that despite such default/omission, the prosecution may still prove its case beyond reasonable doubt and the court can so return its finding. But, at the same time, the default and omission would have a reasonable chance of defeating the case of the prosecution in some events and the guilty could go scot-free. ..................................
..................................................................................
37. Profitably, reference to the value of an expert in the eye of the law can be assimilated as follows:
3
(2012) 8 SCC 263 Crl.A. No.22 of 2019 16
Santosh Kumar Pandey vs. State of Sikkim
―The essential principle governing expert evidence is that the expert is not only to provide reasons to support his opinion but the result should be directly demonstrable. The court is not to surrender its own judgment to that of the expert or delegate its authority to a third party, but should assess his evidence like any other evidence.
If the report of an expert is slipshod, inadequate or cryptic and the information of similarities or dissimilarities is not available in his report and his evidence in the case, then his opinion is of no use. It is required of an expert whether a government expert or private, if he expects, his opinion to be accepted to put before the court the material which induces him to come to his conclusion so that the court though not an expert, may form its own judgment on that material. If the expert in his evidence as a witness does not place the whole lot of similarities or dissimilarities, etc., which influence his mind to lead him to a particular conclusion which he states in the court then he fails in his duty to take the court into confidence. The court is not to believe the ipse dixit of an expert.
Indeed the value of the expert evidence consists mainly on the ability of the witness by reason of his special training and experience to point out the court such important facts as it otherwise might fail to observe and in so doing the court is enabled to exercise its own view or judgment respecting the cogency of reasons and the consequent value of the conclusions formed thereon. The opinion is required to be presented in a convenient manner and the reasons for a conclusion based on certain visible evidence, properly placed before the Court. In other words the value of expert evidence depends largely on the cogency of reasons on which it is based.‖ [See Forensic Science in Criminal Investigation & Trial (4th Edn.), by B.R. Sharma.] [Emphasis supplied]"
Bearing the ratio cited above in mind, it emerges with clarity
that evidence with regard to M.O.I is riddled with contradictions as
discussed supra, raising serious doubts as to whether it was indeed
the weapon of offence and whether it had been utilized for inflicting
injuries on the victim which allegedly caused her death as no link in
the chain of Prosecution evidence even remotely establishes M.O.I
as the weapon of offence. The evidence of P.Ws 14, 15 and 17 do
not inspire the confidence of this Court on this aspect. Therefore,
the finding of the Learned Trial Court with regard to M.O.I cannot
be sustained.
Crl.A. No.22 of 2019 17
Santosh Kumar Pandey vs. State of Sikkim (xii) P.W.2, P.W.3 and P.W.6 saw naked wires above the
bed of the deceased. P.W.2 testified that he along with his friend
P.W.3 shifted the bed of the deceased to about one foot away from
the wall where he saw naked wires above the bed. P.W.3
supported his evidence. P.W.9, the Assistant Engineer, made no
mention of having seen the deceased in the rented room when he
went to examine the electrical wiring in that room as requisitioned
by P.W.15 in the UD case. He prepared Exhibit 3 his report which
inter alia reads as follows;
".........................................................................
I, the undersigned along with my sub-ordinates went for verification of the room of a deceased person on the same day and observed that there was no any faulty line. Since, there was only one S/S combine and one LED bulb drawn with the 1.5 sq.mm insulated Copper wires which is only for lighting purpose and consumes very less energy. And as per the verification those equipments were not even damaged /short-circuited. All the electrical equipments were found ok. Hence, there is no possibility of electrocution."
Under cross-examination, he admitted that he had not mentioned
in Exhibit 3 whether there was any leakage of current in the
electrical line at the place of occurrence. That, 1.5 sq.mm.
insulated in the room is a normal household electrical line,
however, he added that 230 volts of current passes through such
wires which can be lethal. Despite his inspection and conclusion he
made no mention or reference to the naked wires seen by P.Ws 2,
3 and 6 in the tenanted room and P.W.15 and P.W.17 have failed
to address this circumstance both in their investigation and their
evidence. P.W.9 has also not detailed his years of professional
experience neither did he disclose whether he took any electrician
or requisite implements along with him to inspect the electrical Crl.A. No.22 of 2019 18
Santosh Kumar Pandey vs. State of Sikkim
fittings. He failed to explain as to how he concluded that there was
no fault in the electric lines without specifying the steps taken by
him to examine the wiring during inspection. His evidence is
unreliable.
(xiii) Photographs of the place of occurrence and that of
victim, Document ‗A' were said to have been taken by P.W.15.
P.W.17, while echoing the evidence of P.W.15 that photographs at
the place of occurrence had been taken, stated that Document ‗A'
(collectively) being twenty-one photographs were submitted to the
Court along with the Charge-Sheet. Twenty-one photographs were
marked only as Document ‗A' and not as Exhibits, thereby
indicating that the Prosecution placed no reliance on the
photographs. In fact, no explanation was furnished for
consideration of the photographs in terms of the provisions of
Section 65B(4) of the Indian Evidence Act, 1872, by P.W.17.
Hence, the photographs are outside the ambit of consideration of
this Court.
(xiv) Relevantly, it is to be noticed that the investigation
conducted by P.W.15 was under Section 174 of the Cr.P.C. The
Hon'ble Supreme Court while dealing with this provision in Pedda
Narayana and Others vs. State of Andhra Pradesh4 observed as
hereinbelow;
"11. A perusal of this provision would clearly show that the object of the proceedings under Section 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under Section 174. In these circumstances, therefore, neither
4 (1975) 4 SCC 153 Crl.A. No.22 of 2019 19
Santosh Kumar Pandey vs. State of Sikkim
in practice nor in law was it necessary for the police to have mentioned these details in the inquest report. ................................ [emphasis supplied]"
In Tehseen Poonawalla vs. Union of India and Another5 the
Supreme Court cited with approval the observation made in Pedda
Narayana (supra). In Amar Singh vs. Balwinder Singh and Others6 the
Supreme Court held that the basic purpose of holding an inquest is
to report the apparent cause of death, namely, whether it was
suicidal, homicidal, accidental or by some machinery. Pausing here
momentarily it may be remarked that Exhibit 1 or P.W.13 have not
enlightened the Court as to whether the death came under any of
the aforesaid categories. It is reiterated here that P.W.13 merely
mentioned that foul play was suspected requiring detailed enquiry.
In Manoj Kumar Sharma and Others vs. State of Chattisgarh and 7 Another a Bench of two Learned Judges held that the purpose of
an inquest in cases of accidental or suspicious deaths under
Section 174 and Section 175 of the Cr.P.C. is distinct from
investigation under Section 157 of the Cr.P.C. under which an
Officer-in-Charge of a Police Station who is empowered to
investigate, shall proceed to the spot in person to investigate the
facts and circumstances of the case, if he has reason to suspect
the commission of an offence. Consequently, pursuant to the
investigation into the UD Case by P.W.15, P.W.17 was expected to
carry out an independent investigation for the purposes of the
offences alleged to have been committed by the Appellant. Even
Exhibit 13 the rough sketch map of the place of occurrence was
prepared by P.W.15, hence doubts arise as to whether P.W.17
5 (2018) 6 SCC 72 6 (2003) 2 SCC 518 7 (2016) 9 SCC 1 Crl.A. No.22 of 2019 20
Santosh Kumar Pandey vs. State of Sikkim
even visited the site of the alleged crime at all despite the mandate
of the Statute, to verify the facts, which thereby indicates a
lackadaisical attitude which manifested in shoddy investigation.
(xv) P.W.14 revealed that nail clippings of the deceased
were packed and sealed by him in an envelope. Exhibit 14 reveals
that P.W.14 was specifically requested to preserve the nail
clippings of the deceased which was duly complied with by him, but
the I.O. failed to forward it for scientific analysis as appears from
Exhibit 25. P.W.17 further states that he had seized Exhibits
handed over to him by P.W.15, therefore, when the autopsy was
conducted investigation was already handed over to P.W.17. This
circumstance reinforces the suspicion that P.W.17 did not carry out
an independent investigation into the matter and relied solely on
the investigation of P.W.15 made in the UD Case.
(xvi) Reverting to the evidence of P.Ws 1, 6 and 15, they
saw the burnt curtains M.O.XIII at the place of occurrence. No
investigation was evidently taken up nor reasons given by the
Prosecution as to how the curtains came to be burnt although the
said articles, M.O.XIII have been seized vide Exhibit 7.
10(i). The Learned Trial Court was also impressed with the
Section 164 Cr.P.C. statement of P.W.6 and relied on it as
substantive evidence. In Paragraph 68 of the impugned Judgment
it is recorded inter alia that nothing on record created a doubt that
P.W.6 would be deposing falsely nor was there reason to disbelieve
her statement made before the Learned Magistrate who recorded
her Section 164 Cr.P.C. statement. That, P.W.6 having deposed
the same facts before the Learned Trial Court her statements were Crl.A. No.22 of 2019 21
Santosh Kumar Pandey vs. State of Sikkim
reliable. On meticulously walking through the deposition of P.W.6
it is clear that she has made no whisper of the Appellant's
involvement in the alleged offence. The reliance of the Learned
Trial Court on the Section 164 Cr.P.C. statement of P.W.6 was
legally erroneous as P.W.6 was never confronted with her Section
164 Cr.P.C. statement in the Court either during her evidence-in-
chief or cross-examination, to corroborate or contradict its
contents. Her only statement against the Appellant was that the
deceased complained to her that accused had beaten her once.
Would this suffice to establish the offence against the Appellant
under Section 300 and Section 201 of the IPC? In our considered
opinion, this would be an appalling conclusion. P.W.17 made a frail
attempt to incriminate the Appellant by stating that during his
investigation it was revealed that P.W.6 had heard the deceased
crying in the room, but P.W.6 has made no such revelation before
the Court to corroborate P.W.17.
(ii) It may appositely be observed here that a statement
under Section 164 Cr.P.C. is resorted to by the I.O. during the
course of investigation when an accused or any other person seeks
to make a confession or a statement, respectively. This is done of
their own free will and is recorded as per the procedure established
by law when there is an apprehension that either the accused or
the witness may resile from their statements or likelihood of
evidence being tampered with. In R. Shaji vs. State of Kerala8 the
Hon'ble Supreme Court observed as follows;
"26. Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161
8 (2013) 14 SCC 266 Crl.A. No.22 of 2019 22
Santosh Kumar Pandey vs. State of Sikkim
CrPC can be used only for the purpose of contradiction and statements under Section 164 CrPC can be used for both corroboration and contradiction. .........................................
27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. (Vide Jogendra Nahak v. State of Orissa [(2000) 1 SCC 272 : 2000 SCC (Cri) 210 : AIR 1999 SC 2565] and CCE v. Duncan Agro Industries Ltd. [(2000) 7 SCC 53 : 2000 SCC (Cri) 1275])
28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence. [Emphasis supplied]"
Hence, the Learned Trial Court could only rely on the
evidence given on oath in the Court and not one under Section 164
of the Cr.P.C. which can be relied on for the purposes of
corroboration and contradiction only. The evidence of P.W.6 in the
Court cannot be discarded.
11. The Learned Trial Court next observed in the impugned
Judgment that the Appellant had failed to give cogent reasons for
the injuries found over the body of the deceased. In our
considered opinion, this observation of the Learned Trial Court is
legally untenable for the reason that the reverse burden falls on
the Appellant only when the Prosecution has made out a plausible
cause for the Appellant having committed the offence and sufficient
reasons having established that the crime was committed by him. Crl.A. No.22 of 2019 23
Santosh Kumar Pandey vs. State of Sikkim
This aspect has been explained by the Hon'ble Supreme Court
in Shambu Nath Mehra vs. The State of Ajmer9 as follows;
"(10) Section 106 is an exception to S.101. Section 101 lays down the general rule about the burden of proof.
―Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist‖.
Illustration (a) says--
―A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.
A must prove that B has committed the crime‖. (11) This lays down the general rule that in a criminal case the burden of proof is on the prosecution and S.106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are ―especially‖ within the knowledge of the accused and which he could prove without difficulty or inconvenience.
The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.
It is evident that that cannot be the intention & the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R, 1936-3 All ER 36 at p.49 (B).
.............................................................. (13) We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be "especially" within the knowledge of the accused.
This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts. [Emphasis supplied]"
9 AIR 1956 SC 404 Crl.A. No.22 of 2019 24
Santosh Kumar Pandey vs. State of Sikkim
The Prosecution, in our considered opinion, has failed to build
up a plausible case against the Appellant and the burden does not
lie on the accused to prove he did not commit the murder until
sufficient evidence incriminates him on the crime. We may
beneficially rely on the ratio in Kali Ram vs. State of Himachal 10 Pradesh , where the Supreme Court observed as follows;
"25. Another golden thread which runs through the web of 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 favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable; it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. ..................... [Emphasis supplied]"
12. Although P.W.15 claims to have discovered during his
investigation that the deceased and the Appellant were married
about three years ago, according to P.W.17, it was six years, thus,
there is no uniformity even on this aspect. However, no other
witness or documentary evidence was forthcoming in this context
to support either of the claims. Both P.Ws have made no effort to
examine other angles pertaining to the death of the victim more so
in light of the provisions of Section 113A of the Indian Evidence
Act, 1872.
10
(1973) 2 SCC 808 Crl.A. No.22 of 2019 25
Santosh Kumar Pandey vs. State of Sikkim
13. The Prosecution proved seizure of M.O.II to M.O.XIV
vide Exhibits 6 and 7 in the presence of P.W.10 and P.W.12, who
deposed as much. Presumably, P.W.15 seized these articles as
P.W.10 and P.W.12 stood witnesses to the seizing of M.O.I and the
other articles enumerated hereinbelow, viz.;
M.O.II - Gas stove; M.O.III - Gas lighter; M.O.IV - Gas pipe; M.O.V - Gas regulator; M.O.VI - Filled cylinder; M.O.VII - Electric wire; M.O.VIII - Switch Board; M.O.IX - Bed switch; M.O.X - Bulb; M.O.XI - Mobile charger; M.O.XII - Bangle; M.O.XIII - Green curtain; M.O.XIV - Mobile phone.
The reasons for seizing these objects and how they were
connected to the offence or how the seizure of these objects were
relevant in garnering strength for the Prosecution case has
remained shrouded in mystery.
14. None of the Prosecution witnesses have made any
statement about having seen the Appellant with the victim before
the murder. Be that as it may, even if this Court is inclined to
believe the Prosecution version of the Appellant having been seen
last with the victim, it does not absolve the Prosecution from
examining all possibilities and placing before the Court an
irrefutable theory that the crime was committed by none else but
the Appellant. The Court cannot be expected to reach a conclusion
of guilt based on conjectures and surmises drawn by the
Prosecution. The last seen theory is an indispensable link in the
chain of circumstances that would point towards the guilt of the
accused, but it is no more res integra that it is not prudent for the
Court to base its conviction solely on the basis of last seen theory.
This theory is to be invoked only on due consideration of the
entirety of the Prosecution case and the circumstance that have Crl.A. No.22 of 2019 26
Santosh Kumar Pandey vs. State of Sikkim
emerged prior to the parties being seen together. In Mahila
Roomabai Jatav vs. The State of Madhya Pradesh11 the Supreme Court
observed that the circumstance of last seen also is not sufficient to
hold the accused guilty of the offence committed. On the anvil of
the discussions above, can the Appellant be held to be the
perpetrator of the offence and the crime foisted on him
conclusively merely for the reason that he is the husband of the
deceased and was presumably with her in the room that night?
Deaths do occur in one house occupied by two or more people. In
fact, families spend nights together under one roof, in such a
circumstance should a sudden death occur can the Prosecution
unilaterally conclude that it was murder without furnishing cogent
evidence to link the crime to the suspect? The life and liberty of an
individual are at stake requiring the investigation to be painstaking
and diligent to prevent a wrong conviction or for that matter a
wrong acquittal.
15. The entire Prosecution case appears to have been built
on the edifice of Exhibit 22 and Exhibit 23 (collectively) upon which
motive was attributed to the Appellant without the strength of any
proof. Exhibit 23 (collectively) indicates (i) a compromise was
effected before the Family Court at Bahraich, Uttar Pradesh, on 21-
06-2014 (ii) vide the same Exhibit supra a Criminal Case had been
registered against the Appellant on 26-10-2012 at the Hardi Police
Station, Uttar Pradesh, for harassing the deceased, under Sections
498A/323 of the IPC and Sections 3/4 of the Dowry Prohibition Act,
1961. That, dispute arose in 2012 and was compromised in 2014,
there is no proof thereafter of deteriorating relations between
11 MANU/SC/1607/2019 : Criminal Appeal No.1989/2010 Crl.A. No.22 of 2019 27
Santosh Kumar Pandey vs. State of Sikkim
them. The evidence of the Prosecution witnesses is devoid of
knowledge of the relationship between the Appellant and the victim
and none of the witnesses have claimed to have seen the Appellant
ill-treating the victim or physically assaulting her during their stay
at the tenanted premises. Thus, no motive has been attributed to
the Appellant. Besides, the contents of Exhibit 23 have not been
proved by any witness who was privy to the contents of the
document which thereby has no probative value.
16. That having been said, it is relevant here on this count
to consider the evidence of P.W.16 one Uttam Kumar Pandey who
was furnished as a Prosecution witnesses before the Court. His
statement under Section 161 of the Cr.P.C. was not recorded
during the investigation. However, in this context, the Supreme
Court in Dayal Singh vs. State of Maharashtra12 held as follows;
"18. In Tilkeshwar Singh v. State of Bihar [AIR 1956 SC 238 : 1956 Cri LJ 441] statements of three witnesses were jointly recorded by the investigating officer in violation of Section 161(3) CrPC. It was contended that the evidence of the said three witnesses in court was inadmissible as there was no record of their statement under Section 161 CrPC. The contention was repelled and it was held that while the failure to comply with the requirements of Section 161(3) CrPC might affect the weight to be attached to the evidence of the witnesses, it does not render it inadmissible. In the facts and circumstances of the present case we are of the opinion that the testimony of PW 9 and PW 10 cannot be discarded on the ground urged by the learned counsel for the appellant and the trial court and the High Court rightly relied upon their statement which was given in court. [Emphasis supplied]"
Hence, there is no illegality in the production of P.W.16 as a
Prosecution witness or his examination in the Court room.
According to him, like the Appellant he is a resident of Bahraich,
Uttar Pradesh. He is related to the Appellant by marriage and
12 (2007) 12 SCC 452 Crl.A. No.22 of 2019 28
Santosh Kumar Pandey vs. State of Sikkim
claimed that the deceased was his niece as he had married her
maternal aunt. While being cross-examined he revealed that the
deceased and the accused ―were on very good terms‖ and they
were very happy and the deceased had no problem with the
accused person. However, the deceased had complained to his
wife that there were unattended naked electrical wiring all over the
room where she was residing. The evidence of this witness is in
tandem with the response of the Appellant in Question No.91 under
Section 313 Cr.P.C. as reflected supra.
17. While considering the conduct of the Appellant post the
death of the victim, he went and informed P.W.6 that his wife had
been electrocuted. Pursuant thereto even after the arrival of
P.W.15 and other P.Ws at the spot he continued to remain therein.
He was not apprehended either by the Police or by any of the
witnesses but remained voluntarily at the place of occurrence.
This conduct of the Appellant by itself does not warrant an
acquittal, but has to be considered together with the evidence
furnished by the Prosecution which fails to inculpate the Appellant.
18. Now to address the argument of Learned Counsel for
the Appellant that since P.W.15 was the I.O. in the UD Case and
the Complainant in the instant case and he had conducted a large
part of the investigation pertaining to this case, therefore, his
evidence would be rife with bias and ought not to be considered,
the Supreme Court in this context in Mukesh Singh vs. State 13 (Narcotic Branch of Delhi) has held as follows;
"13.2. (II) In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground
13 (2020) 10 SCC 120 Crl.A. No.22 of 2019 29
Santosh Kumar Pandey vs. State of Sikkim
of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case-to-case basis. A contrary decision of this Court in Mohan Lal v. State of Punjab [(2018) 17 SCC 627 : (2019) 4 SCC (Cri) 215] and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled. [Emphasis supplied]"
19. The above ratio soundly quells the doubts raised by
Learned Counsel for the Appellant. Besides the investigation by
P.W.15 was only with regard to Section 174 of the Cr.P.C. in UD
Case No.10/2018 and he was not the I.O. in the instant case. The
non-filing of the original complaint of the UD case does not vitiate
this case in anyway as we are dealing with the offence under
Sections 302/201 of the IPC registered under Singtam P.S. Case
No.23/2018 and not UD Case No.10/2018.
20(i). We are aware that defective investigation or error in
the investigation by itself ought not to be a ground of acquittal, the
Supreme Court has held as much in C. Muniappan and Others vs. 14 State of Tamil Nadu wherein it was propounded that there is a
legal obligation on the part of the Court to examine the Prosecution
case dehors lapses in investigation and to find out whether the
evidence is reliable or not and whether the lapses affected the
object of finding out the truth. The conclusion of the trial cannot
be allowed to depend solely on the probity of the investigation.
(ii) On the bedrock of this observation supra, on examining
the evidence on record, we are constrained to observe that no
14 (2010) 9 SCC 567 Crl.A. No.22 of 2019 30
Santosh Kumar Pandey vs. State of Sikkim
incriminating circumstantial evidence has been furnished against
the accused. It is settled law that in a case based on
circumstantial evidence the Courts have to have a conscientious
approach and conviction ought to be recorded only in the event
that all links of the chain are complete, pointing to the guilt of the
accused (Shailendra Rajdev Pasvan and Others vs. State of Gujarat and 15 Others ). It is also well-established that suspicion however grave
cannot take the place of proof and in Rajiv Singh vs. State of Bihar 16 and Another it was observed as follows;
"66. It is well-entrenched principle of criminal jurisprudence that a charge can be said to be proved only when there is certain and explicit evidence to warrant legal conviction and that no person can be held guilty on pure moral conviction. Howsoever grave the alleged offence may be, otherwise stirring the conscience of any court, suspicion alone cannot take the place of legal proof. The well-established canon of criminal justice is "fouler the crime higher the proof". In unmistakable terms, it is the mandate of law that the prosecution in order to succeed in a criminal trial, has to prove the charge(s) beyond all reasonable doubt.
67. The above enunciations resonated umpteen times to be reiterated in Raj Kumar Singh v. State of Rajasthan [(2013) 5 SCC 722 : (2013) 4 SCC (Cri) 812] as succinctly summarised in para 21 as hereunder: (SCC pp. 731-32) ―21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that „may be‟ proved and „will be proved‟. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ‗may be' true and ‗must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. .......... ..............................................................
72. Viewed from the moral and political perspectives, it has been observed that in liberal
15 (2020) 14 SCC 750 16 (2015) 16 SCC 369 Crl.A. No.22 of 2019 31
Santosh Kumar Pandey vs. State of Sikkim
States, the rule about the burden of proof has been elevated to the status of fundamental human right encompassing the assurance of liberty, dignity and privacy of the individual and from this standpoint it is essential that the State should justify fully its invasion of the individual's interest by proving that he had committed an offence, thereby abusing the freedom of action accorded to him or her by the liberal State. ..................................... [Emphasis supplied]"
21. Accordingly, in view of the foregoing discussions, we
are of the considered opinion that the circumstances from which
the conclusion of guilt of the Appellant is to be drawn has not been
fully established. The evidence led by the Prosecution falls short of
the test laid down by the ratio in Sharad Birdhichand Sarda (supra).
Moral conviction cannot replace the requirement of "proof beyond
all reasonable doubt" and the Supreme Court in Sharad Birdhichand
Sarda (ibid) has clarified as follows;
"179. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law.
180. It must be recalled that the well established rule of criminal justice is that ―fouler the crime higher the proof‖. In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautions and meticulous approach was necessary to be made."
22. In conclusion, after carefully sifting the chaff from the
grain of the Prosecution evidence, undoubtedly the chain of
circumstances from which the conclusion of guilt of the Appellant is
to be drawn is not linked inextricably to the Appellant to
conclusively arrive at the finding that he is the author of the crime.
The benefit of doubt must be and is thereby extended to the
Appellant.
23. Consequently, Appeal is allowed.
Crl.A. No.22 of 2019 32
Santosh Kumar Pandey vs. State of Sikkim
24. The conviction and sentence imposed on the Appellant
vide the impugned Judgment and Order on Sentence of the
Learned Trial Court are set aside.
25. The Appellant is acquitted of the offence charged with,
i.e., under Sections 302/201 of the IPC. He be set at liberty
forthwith if not required to be detained in any other case.
26. Fine, if any, deposited by the Appellant in terms of the
impugned Order on Sentence, be reimbursed to him.
27. No order as to costs.
28. Copy of this Judgment be forwarded to the Learned Trial
Court for information and compliance, along with its records.
( Meenakshi Madan Rai ) ( Jitendra Kumar Maheshwari )
Judge Chief Justice
05-08-2021 05-08-2021
Approved for reporting : Yes
ds
