Bijendra Nonia v. The State of Bihar

fardbeyan, Exhibit-4 is formal FIR, Exhibit-5 is inquest report, Exhibit-6 is seizure list, Exhibit-7 is Sketch Map, Exhibit-8 is postmortem report. Piece of bangle happens to be material Exhibit-I. Defence had also examined two DWs out of whom DW 1 is Dr. Upendra Singh a homeopathic doctor while DW 2 is Ram Chandra Mahto. Exhibit-A happens to be the register kept by DW-1.

6. While assailing judgment of conviction and sentence it has been argued on behalf of appellant that the judgment suffers from conjecture and surmises as well as patient error is apparent on bare perusal of the judgment. It has further been submitted that none is an eye witness to 4 occurrence. Therefore, the case rests upon the theme of circumstantial evidence. From the evidence on record, it is apparent that none of the witness has come forward to say that deceased was residing at Barakhurd and she was last seen in the company of appellant. Not only this, there happens to be deficiency on the score of proper identification of the dead body. Hence it could not be said that the recovered and seized dead body was that of Dulariya Devi. It has further been submitted that on account of non-examination of other family members of PW-2, the informant, it could not be conclusively concluded that one month prior to alleged recovery of so-called dead body, a Bidai was effected and appellant accompanied Dulariya to his place. In likewise manner, there is no positive and concurrent evidence available on the record as to on which date Dulariya was taken to Bara Khurd by the appellant. Contrary to it the appellant had examined two DWs who had deposed regarding death of Dulariya at her Naihar much before the alleged date of Bidai and in the aforesaid background, there happens to be no question of killing the Dulariya at her Sasural and in likewise manner identification of a dead body of unknown female to be that of Dulariya.

7. It has also been argued that from the evidence of PW-1 as well as PW-2, it is crystal clear that before recording of Exhibit-3 fardbeyan, investigation was already taken up, so alleged dead body was recovered for which inquest report was prepared. In the aforesaid background fardbeyan (Exhibit-3) has lost its legal identity because of the fact that same is hit by Section 162 Cr.P.C. 5

8. Because of the fact that instant case happens to be based upon circumstantial evidence therefore, all the links of the chain should be properly completed in such manner that no other hypothesis than that of guilt of accused should be inferred. Contrary to it, as has been pleaded that there are visibility of several missing links and on account thereof, the judgment of conviction and sentence recorded by the learned lower court became non-sustainable in the eye of law.

9. On the other hand repelling the argument so advanced on behalf of appellant, it has been argued by the learned Addl. P.P. that status of Dulariya as wife of appellant is found fully established and accepted by the appellant himself by examining DWs. It is also been established from the evidence that there was no difficulty in identifying the dead body because of the fact that the dead body was intact. Decomposition of body had not started though pilling of skin was found at some place and that happens to be on account of external force which might have been used during course of excavation. When the dead body of Dulariya was taken out from Bara Khurd village where her Sasural lies and in the opinion of doctor the death was due to throttling, then in that event, it was incumbent upon the appellant to explain the same as per requirement of Section 106 of the Evidence Act. Though the appellant had unsuccessfully tried to shift the burden over informant and for that he had examined two DWs whose sanctity is found to be completely demolished in the background of recovery of dead body of Dulariya from the appellant’s village. No other kind of explanation has been given by the appellant. Therefore, the reasoning assigned by the learned trial 6 court leading to conviction and sentence of the appellant is found to be based upon sound principle of law and is accordingly fit to be confirmed.

10. After hearing both the sides as well as going through the records, it is apparent that none claimed to be an eye witnesss to occurrence and in the aforesaid background, certainly this case found to be based upon circumstantial evidence.

11. The Hon’ble Apex Court elaborately dealt with the principles to be considered, in case, the same happens to be based upon circumstantial evidence in Arvindkumar, Anuplal Poddar Vs. State of Maharashtra reported in 2012 Cr.L.J. 4007. “11. As in the case on hand conviction imposed on the appellant is only based on circumstantial evidence, we feel that the various decisions of this Court laying down the principles of appreciating the circumstantial evidence while imposing the sentence can be highlighted. The earliest case on this subject was reported as Hanumant Govind Nargundkar & Anr. v. State of M.P.,AIR 1952 SC 343. In para 10, the position has been succinctly stated as under: “10. xxx xxx xxx xxx It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should 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. In spite of the forceful arguments addressed to us by the learned Advocate-General on behalf of the State we have not been able to discover any such evidence either intrinsic within Exhibit P-3-A or outside and we are constrained to observe that the courts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned case.” The decision in Hanumant Govind (supra) was followed in the Constitution Bench decision of this Court reported as Govinda Reddy Krishna & Another v. State of Mysore, AIR 1960 SC 29. The said position was subsequently reiterated in the decision reported as Naseem Ahmed v. Delhi Admn., (1974) 3 SCC 668 (AIR 1974 SC 691). In para-10 of the decision in Naseem Ahmed (supra), the legal position has been stated as under: 7 “10. This is a case of circumstantial evidence and it is therefore necessary to find whether the circumstances on which prosecution relies are capable of supporting the sole inference that the appellant is guilty of the crime of which he is charged. The circumstances, in the first place, have to be established by the prosecution by clear and cogent evidence and those circumstances must not be consistent with the innocence of the accused. For determining whether the circumstances established on the evidence raise but one inference consistent with the guilt of the accused, regard must be had to the totality of the circumstances. Individual circumstances considered in isolation and divorced from the context of the over-all picture emerging from a consideration of the diverse circumstances and their conjoint effect may by themselves appear innocuous. It is only when the various circumstances are considered conjointly that it becomes possible to understand and appreciate their true effect. If a person is seen running away on the heels of a murder, the explanation that he was fleeing in panic is apparently not irrational. Bloodstains on the clothes can be attributed plausibly to a bleeding nose. Even the possession of a weapon like a knife can be explained by citing a variety of acceptable answers. But such circumstances cannot be considered in water-tight compartments. If a person is found running away from the scene of murder with blood-stained clothes and a knife in his hand, it would in a proper context, be consistent with the rule of circumstantial evidence to hold that he had committed the murder.” In the decision reported as Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : (AIR 1984 SC 1622), this Court has laid down the cardinal principles regarding appreciation of circumstantial evidence and held that whenever the case is based on circumstantial evidence, the following features are required to be complied with which has been set out by this Court in para 153 at page 185 which reads as under: “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra19 where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between „may be‟ and „must be‟ is long and divides vague conjectures from sure conclusions.” (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, (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 8 and must show that in all human probability the act must have been done by the accused.