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Penal Code, 1860 – s. 302 r/w. s.34 – Acquittal under –Prosecution case that ‘S’ was tenant of an apartment on the secondfloor of a building owned by PW-3 – On 12.09.2000, at about 10.40a.m., an information was given to the police that a dead body islying in that apartment – As per prosecution, two disclosure/confessional statements were made by each of the two accused (‘S’and ‘N’) during police custody – Trial Court held that the provencircumstances constituted a chain which conclusively indicated thatthe accused ‘S’ in the company of co-accused ‘N’ committed thecrime and to remove the evidence hid the dagger and the bloodstainedclothes and further, to hoodwink the police, ‘N’ wrote andplanted a suicide letter in a pocket of the trouser worn by thedeceased – Both the accused were convicted u/ss. 302 r/w. s. 34 –High Court acquitted ‘N’, however, S’s conviction was upheld – Onappeal, held: Mere tenancy of the apartment being with ‘S’ by itselfis not sufficient to hold him guilty as there is no general presumptionagainst the owner/tenant of a property with regard to his/her guiltif a dead body with homicidal injuries is found in his/her property– Prosecution failed to lead any evidence that the two accused, orany one of them, were present there, or in the vicinity – There is nowitness statement identifying the handwriting of accused ‘N’ ordisclosing that accused wrote the suicide letter in his presence –There is also no evidence to explain the relevance of the contents ofthe suicide letter – Suicide letter indicts one person ‘C’– As to whysuch indictment was made; whether it was with reference to someother event contemplated, the prosecution evidence is silent –Barring the expert report, there exists no internal or externalevidence to lend assurance to the prosecution story that the suicideletter was written by accused ‘N’ – As regards recovery of clothes atthe instance of ‘S’, PW4, a witness to that recovery, has been declared hostile – There is thus no support to that recovery fromany public witness – The circumstance that the clothes carried bloodof same group as of the deceased is rendered meaningless becausethere is no admissible evidence to connect the clothes with the twoaccused – As regards recovery of knife at the instance of ‘N’, thesame has been denied by ‘N’ and there appears no independentwitness to support it – Its incriminating value is extremely limitedbecause, firstly, there is no forensic evidence connecting the knifewith the crime; secondly, the knife is a common knife which couldeasily be available; thirdly, the wounds found on the body of thedeceased were of different dimensions giving rise to possibility ofuse of more weapon than one; and, fourthly, the entire exercise ofrecovery does not inspire confidence, particularly, because the firstattempt to recover had failed – Thus, the prosecution failed to provea chain of incriminating circumstances as to conclusively point outthat in all human probability it was the two accused or any one ofthem, and no one else, who had committed the murder.Evidence – Circumstantial Evidence – Conviction on strengthof evidence which are circumstantial in nature – Settled legalposition – The circumstances from which the conclusion of guilt isto be drawn should be fully established – Also, circumstances shouldbe of a definite tendency unerringly pointing towards the guilt ofthe accused – Further, the circumstances taken cumulatively shouldform a chain so far complete that there is no escape from theconclusion that within all human probability the crime was committedby the accused and the circumstances should be consistent onlywith the hypothesis regarding the guilt of the accused and they mustexclude every possible hypothesis except the one to be proved –The circumstances from which the conclusion of guilt is to be drawnshould be fully established meaning thereby that they ‘must’ or‘should’ and not ‘may be’ established as the Court must not beoblivious of the most fundamental principle of criminaljurisprudence, which is, that the accused ‘must be’ and not merely‘may be’ guilty before the Court proceeds to convict him.Indian Evidence Act, 1872 – s. 106 – Burden of proof underit upon the accused – Legal position – It is settled that s. 106 of theEvidence Act does not absolve the prosecution of discharging itsprimary burden of proving the prosecution case beyond reasonable doubt – It is only when the prosecution has led evidence which, ifbelieved, will sustain a conviction, or which makes out a primafacie case, that the question arises of considering facts of whichthe burden of proof would lie upon the accused.Code of Criminal Procedure, 1973 – s. 311-A – Law thereinand its prospective application – By Act No.25 of 2005, with effectfrom 23.06.2006, Section 311-A has been inserted in the Codethereby empowering a Magistrate of the First Class to direct anyperson including an accused to give specimen signature orhandwriting for the purposes of investigation but this provisionwould have no bearing on the case instant case as it is of the year2000.Indian Evidence Act, 1872 – s. 73 – Scope – The provisionsof S. 73 apply when a proceeding such as an inquiry or trial ispending in a Court – In the instant case, since no proceedings werepending before any Court when the specimens in question wereobtained, provisions of s.73 could not have been invoked.Indian Evidence Act, 1872 – s. 45 – Handwriting Expert –Admissibility – Scope – It is not impermissible to base a finding withregard to authorship of a document solely on the opinion of ahandwriting expert but, as a rule of prudence, because of imperfectnature of the science of identification of handwriting and itsaccepted fallibility, such opinion has to be relied with caution andmay be accepted if, on its own assessment, the Court is satisfiedthat the internal and external evidence relating to the document inquestion supports the opinion of the expert and it is safe to accepthis opinion. |
