State of Kerala v. Ramachandran — 1999 DIGILAW 459 (KER)

Judgment :- Arijit Pasayat, CJ. A father is supposed to be a protector of his progeny. Gone are the days of a concerned father like Emperor Babar praying for his son's life at the cost of his own or an obedient son like Casablanca standing embedded on a burning dock in obedience of his father's command. The case on hand is one where serious allegations of the accused having attempted to commit rape of his own daughter Manjula thereinafter referred to as the deceased), and thereafter causing her death have been made. Learned Additional Sessions Court, Pathanamthitta held that prosecution has failed to establish the heinous allegations relating to commission of offences' punishable under S.376 read with Ss.511,436, 302 and 201 of Indian Penal Code, 1860 (in short 'the IPC'). Correctness of the judgment of acquittal is the subject matter of challenge in this appeal by the State. 2. The factual background which led to trial of the case is as follows:- The deceased was aged about 17 years. Accused was having doubt about the paternity of the girl and therefore, there was frequent discontent in the family. On the fateful day i.e.,17.2.1993 while his wife Sumangala was absent, he tried to have sexual intercourse with the deceased which was resisted by the latter. Fearing that his reputation will be blackened, he shut her mouth and nose by hand and when she became unconscious, poured kerosene from a can on her and set fire. She died out of burns. He left the place and when informed by some other neighbours, he came back to the house and gave information to the Police. The case bearing No. 72/93 under caption 'Fire Occurrence' was registered. Since nothing came out from the investigation, case was registered by the Additional Sub Inspector of Police, who after investigation came to the conclusion that incident was a mere fire accident. When the matter was about to be closed, investigation was undertaken by the Crime Branch. A charge sheet was placed and accused stood for trial. Twenty one witnesses were examined on the side of the prosecution. On consideration of the evidence adduced by the prosecution, learned trial judge found the accused not guilty and acquitted him. 3. Learned counsel for the State in support of the appeal stated that though admittedly there was no eye witness, the circumstances clearly establish guilt of the accused. Twenty one witnesses were examined on the side of the prosecution. On consideration of the evidence adduced by the prosecution, learned trial judge found the accused not guilty and acquitted him. 3. Learned counsel for the State in support of the appeal stated that though admittedly there was no eye witness, the circumstances clearly establish guilt of the accused. The motive for the crime was also established and the accused and the deceased were last seen together when the latter was alive. Therefore, the conclusion of innocence arrived at by the learned judge cannot be supported. Learned counsel for the accused on the other hand submitted that the case built up by the prosecution was entirely circumstantial and there was no definite material to show that the accused was guilty of the offences alleged. Further, it is submitted that while dealing with the appeal against the order of acquittal, the Court has to adopt cautious approach and even if, for the sake of argument, it is held that different view was possible on the evidence on record, that would not be sufficient to upset the order of acquittal. 4. We shall first deal with the scope and ambit of an appeal against acquittal. In G.B. Patel v. State of Maharashtra (AIR 1979 SC 135), the principles laid down by Privy Council in Sheo Swamp v. King Emperor (AIR 1934 PC 227 (2)) were approved. It was held that although the power of the High Court to reassess the evidence and reach its own conclusion are as extensive as in an appeal against the order of conviction, yet, as a rule of prudence, the High Court should always give proper weight and consideration to the matter i.e.; (i) the views of the trial judge as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (Hi) the right of the accused to the benefit of any doubt, and (iv) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. Where two reasonable conclusions can be drawn on the evidence on record, the High Court should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the court below. Where two reasonable conclusions can be drawn on the evidence on record, the High Court should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the court below. In other words, if the main grounds on which the court below based its order acquitting the accused are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal. In Awadhesh v. State of Madhya Pradesh (AIR 1988 SC 1158), it was further observed that while considering an appeal against acquittal the High Court must keep in mind these principles in appreciating the evidence of witnesses. If on appraisal of the evidence and on considering relevant attending circumstances, it is found that two views are possible, one as held by the trial court for acquitting the accused, and the other for convicting the accused, in such a situation the rule of prudence should guide the High Court not to disturb the order of acquittal made by the trial court. Unless the conclusions of the trial court drawn on the evidence on record are found to be unreasonable, perverse or unsustainable, the High Court should not interfere with the order of acquittal. 5. S.378 of me Code of Criminal Procedure, 1973 which corresponds to S.417 of the old Code provides for appeal in case of acquittal. 6. There was quite a controversy among the Courts with considerable divergence of judicial opinion as to the scope of appeal against an order of acquittal. This controversy remained unabated till some guideline was indicated by the Privy Council in Sheo Swarup v. King Emperor (1934) 61 IA 398: AIR 1934 PC 227 (2) . This decision was considered in Sanwat Singh v. State of Rajaslhan (AIR 1961 SC 715): (1961) 3 SCR 120, in which the legal position was explained by the Apex Court as under: 1) The evidence upon which the order of acquittal was passed by the trial court can be reviewed, re appreciated and reappraised by the appellate Court. 2) The principles laid down by the Privy Council in Sheo Swarup v. King Emperor provide correct guidelines for the appellate Court while disposing of the appeal against the order o f acquittal. 2) The principles laid down by the Privy Council in Sheo Swarup v. King Emperor provide correct guidelines for the appellate Court while disposing of the appeal against the order o f acquittal. 3) The words "substantial and compelling reasons", "good and sufficiently cogent reasons" or "strong reasons" used by this Court in its various judgments do not have the effect of curtailing power of the High Court to reconsider, review or scrutinise the entire evidence on record so as to come to its own conclusions in deciding the appeal against an order on acquittal. 7. As a matter of fact, the powers of the High Court are not different from its powers in an ordinary appeal against conviction. The additional burden which is placed on the High Court is that it has to consider each of the grounds which had prompted the trial Court to pass the order of acquittal and to record its own reasons for not agreeing with the trial Court. 8. In State of U.P. v. Samman Das, AIR 1972 SC 677: (1972) 3 SCR 58, Apex Court again reiterated the above principles and pointed out that there were certain cardinal rules which had always to be kept in view in appeal against acquittal. It was pointed out that there is a presumption of innocence in favour of the accused especially when he has been acquitted by the trial Court. It was further to be kept in view that if two views of the matter are possible, the view which favours the accused has to be adopted. The appellate Court has also to keep in view the fact that the trial judge had the advantage of looking at the demeanour of witnesses and that the accused is still entitled to the benefit of doubt. The doubt should be such as a rational-thinking person will reasonably, honestly and conscientiously entertain and not the doubt of a irrational mind. 9. The Apex Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial Court. The doubt should be such as a rational-thinking person will reasonably, honestly and conscientiously entertain and not the doubt of a irrational mind. 9. The Apex Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial Court. These principles have been set out in innumerable cases and may be reiterated as under: 1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction. 2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial Court, if the said findings are against the weight of the evidence of record, or in other words, perverse. 3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal. 4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial Court. 5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted. 6) The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box. 7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused. 10. 7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused. 10. Going into the facts of the case, it is to be noted that there was no eye witness and the entire case was built up on circumstantial evidence. The law relating to circumstantial evidence has been elaborately dealt with by the Apex Court in several cases. 11. In cases where the evidence is of circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 12. The Tanchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra AIR 1984 SC 1622. They read as follows: 1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from "may be' 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. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs though the web of administration of criminal justice is to the effect that if two views arc possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Al person stated the following to the jury in Reg. v. Hedge: (1838) 2 Law 227: "The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it. Considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete." This was referred to in Shankarial v. State of Maharastra, AIR 1981 SC 765; and in Jaharlal Das v. State if Orissa, AIR 1991 SC 1388. Unlike direct evidence, indirect circumstances which throw light, may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction. 13. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused. but also it must be such as to rule out a reasonable likelihood of the innocence of the accused, Where the various links satisfactorily makes out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all those facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. 14. Before taking up the task, it may be stated that for a crime to be proved, it is not necessary that the crime must be seen to have been committed and must, in all circumstances, be proved by direct ocular evidence by examining before the Court those persons who had seen its commission, The offence can be proved by circumstantial evidence also. The principle fact or "factum probandum" may be proved indirectly by means of certain inferences drawn from "factum probans", that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together, they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. 15. It has been consistently laid down by Apex Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR 1977 SC 1063, Eradu v State of Hyderabad AIR 1956 SC 316:1956 Cri. LJ 599, Earabhadrappa v. State ofKarnataka AIR 1983 SC 446, State of U.P. v. Sukhassi AIR 1985 SC 1224. Balawinder Singh v. State of Punjab AIR 1987 SC 350, Ashok Kumar Chatterjee v. State of M:P. AIR 1989 SC 1890. 16. LJ 599, Earabhadrappa v. State ofKarnataka AIR 1983 SC 446, State of U.P. v. Sukhassi AIR 1985 SC 1224. Balawinder Singh v. State of Punjab AIR 1987 SC 350, Ashok Kumar Chatterjee v. State of M:P. AIR 1989 SC 1890. 16. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab AIR 1954 SC 621:1954 Cr.LJ 1645, it was laid down that where the case depends upon the conclusions drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. 17. See also State of U.P. v. Ashok Kumar Srivastava 1992 Cr.LJ 1104, in which it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 18. What is important is that the possibility of the conclusions being consistent with the innocence of the accused must be ruled out altogether. 19. The learned trial judge has elaborately dealt with various circumstances highlighted by the prosecution in its attempt to fasten guilt on the accused. None of the circumstances individually or collectively establish that (a) there was an attempt to commit rape; (b) after having been frustrated in his attempt, the accused caused the death of the deceased (c) tried to conceal the evidence and/or destroy it. In the absence of any proof on the aforesaid aspects, the only conclusion that can be arrived at is that the prosecution has failed to establish its case. That being the position, there is no scope for entertaining the appeal which is accordingly dismissed.