REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL    NO.1330 OF 2018 (arising out of SLP(Crl.) No.2440 of 2018)

REENA HAZARIKA ....APPELLANT(S)

VERSUS

STATE OF ASSAM      ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

Leave granted.

2.  The appellant is the wife of the deceased convicted under

Section 302 I.P.C. and sentenced to life imprisonment with fine

of Rs.1,000/­ and in default, imprisonment for one month.

3. The deceased resided along  with the appellant and his

minor daughter CW­1, Miss Puja Hazarika, aged about 9 years,

in the tenanted premises belonging to PW­1 Manoj Kumar Deka,

PW­2 Dipen Deka and PW­3 Bhrigumoni Deka, who are

brothers.  The appellant is stated to have assaulted the deceased

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in  the  intervening night of  10.05.2013/11.05.2013. PWs. 1,  2

and 3 are stated to have heard noises and on going there, found

the deceased with head injury attributed to a fall, but that the

deceased was otherwise alright.  They were unable to take him to

the hospital because of rains and the unavailability of an

ambulance.  According to the post­mortem report proved by PW­

6, Dr. Ritu Raj Chaliha the deceased had the following injuries

on his person :­

(i) Chop wound of  size  11 cm x 2 cm x muscle

deep present on left side of cheek 6 cm medial

tragus and 1 cm above angle of mandible. (ii) Chop wound of size 9 cm x 2 cm x muscle deep

present back of occipital region. (iii) Chop wound of size 4 cm x 2 cm x muscle deep

present on left side of forearm. (iv) Laceration of size (5 x 4) cm present over left

wrist joint on posterior aspect. (v) Chop wound of size (4 x 1) cm x muscle deep,

present over temporal region on right side. (vi) Chop wound of size (6 x 2) cm of muscle deep

present over back of scapula. (vii) Fracture of temporal bone on both sides.

All injuries were ante mortem and caused by moderately

heavy sharp cutting weapon and homicidal in nature.

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4. The Trial Court and the High Court held that the present

was  a case  of circumstantial evidence.  The last seen theory

establishes the presence of the appellant with the deceased at

night. Her unnatural conduct because she was not crying, she

was the assailant of the deceased.  

5.  Mr. Singh, learned counsel for the appellant submitted that

the courts below have erred in holding that the links in the chain

of circumstances stood established leading to the only

inescapable conclusion of the appellant being the assailant and

no other hypothesis of innocence being possible.   PW­6  has

deposed that the  injuries  were caused by a moderately  heavy

sharp cutting weapon such as a dao, and that the fracture of the

temporal bone  may have been caused by a  moderate heavy

weapon.  The recovery from the place of occurrence, as proved by

PW­7 S.I.  Nilomani  Malakar, is  of  an ordinary  knife  used  for

cutting betel nut, one feet long with a bent sharp point.   Chop

injuries were not possible with the same.  The alleged knife was

not even shown to PW­6 for eliciting opinion if the injuries could

have been caused by the same.  

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6. Miss Diksha Rai, learned counsel for the State submitted

that the appellant was last seen with the deceased in the room,

confirmed by CW­1. The appellant has failed to offer any

explanation of the circumstances as to how the death occurred

at night.   Her unnatural conduct in not even weeping was also

noticed by PW­7.  The knife used for assault, and blood soaked

clothes of the deceased have also been recovered.  

7. We have considered the respective submissions, the orders

of the courts  below,  as also  the evidence available  on record.

Normally this court under Article 136 of the Constitution, would

be reluctant in appeal to interfere with the concurrent findings of

two courts by reappreciating the facts and evidence. But in an

appropriate case, if this court finds that there has been

erroneous consideration and appreciation of facts and evidence,

leading to  miscarriage  of justice, this  court is  duty  bound  to

ensure that ultimately  justice prevails. It is a well  established

principle of criminal jurisprudence that several accused may go

free, but an innocent person should not be punished. In Anant

Chintaman Lagu v. State of Bombay,  (1960) 2 SCR 460 this

court observed as follows :­

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“16.  Ordinarily, it is not the practice of  this Court to re­examine the findings of fact reached by  the  High Court  particularly in  a case  where there is concurrence of opinion between the two Courts below. But the case against the appellant is entirely based on circumstantial evidence, and there is no direct evidence that he administered a poison, and no poison has, in  fact  been detected by  the doctor, who performed the post­mortem examination, or by the Chemical Analyser. The inference of guilt having been drawn on an examination of a mass of evidence during which subsidiary  findings were given by  the two Courts below, we have felt it necessary, in view of the extraordinary nature of this case, to satisfy ourselves whether each conclusion on the separate aspects of the case, is supported by evidence and is just and proper. Ordinarily, this Court is not required to enter into an elaborate examination of the evidence, but we have departed  from this  rule  in  this particular case, in view of the variety of arguments that were addressed to us and the evidence of conduct which the appellant has sought to explain away on hypotheses suggesting innocence. These arguments, as we have stated in brief, covered both the factual as well as the medical aspects of the case, and have necessitated a close examination of the evidence once again, so that we may be in a position to say what are the facts found, on which our decision is rested.”

8. The essentials of circumstantial evidence stand well

established by precedents and we do not consider it necessary to

reiterate the same and burden the order unnecessarily. Suffice it

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to observe that in a case of circumstantial evidence the

prosecution is required to establish the continuity in the links of

the chain of circumstances, so as to lead to the only and

inescapable conclusion of the accused being the assailant,

inconsistent  or incompatible  with the  possibility of any  other

hypothesis compatible with the innocence of the accused.  Mere

invocation of the last seen theory, sans the facts and evidence in

a case, will not suffice to shift the onus upon the accused under

Section  106  of the  Evidence  Act,1872 unless the  prosecution

first establishes a prima facie case.   If the links in the chain of

circumstances itself  are  not  complete,  and  the  prosecution  is

unable to establish a prima facie case, leaving open the

possibility that the occurrence may have taken place  in some

other manner, the onus will not shift to the accused, and the

benefit of doubt will have to be given.   

9.    Before proceeding with the discussion further, we deem it

proper to notice that the appellant did not have the benefit of a

lawyer of her choice, both before the trial  court and the High

Court, naturally because of some  handicap.   She  had to be

provided legal assistance by the Legal Services Authority.  This is

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not to make any comment or observation on the nature of the

defence made available to the appellant, but only to notice her

handicap in establishing her innocence.  

10. PW­1 deposed that he was told by the deceased at about

11:00 p.m. on 10.05.2013 that he had suffered a head injury

because of a fall, and that the witness did not provide any first

aid to the deceased though he along with his brother PW­2, did

try to call an ambulance at about 12:00 am.   Additionally, that

he  did  not see any other injuries on the  deceased.  On the

contrary,  CW­1  deposed that  PW­1 had  applied  Dettol to the

wounds of the deceased.

11. Contrary to the statement of PW­1, his brother, PW­2

deposed that he was woken up at about 2­3 a.m. by the

appellant who was crying and told him that her husband had

suffered head injury.   The deceased is then stated to have

himself told the witness that the injury was not serious.   The

contradiction in the evidence of PW­1 and PW­2 is further

compounded  by the third brother PW­3, deposing that PW­2

informed him of the injury to the deceased at 12.00 am.  All the

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three witnesses have deposed that the deceased was of  heavy

built,  because of  which  they  were  unable to take  him  to the

hospital on the  motor­cycle, for treatment. The  post  mortem

however recites that the deceased was of average built.   If the

deceased  had  merely suffered  a  head injury  by fall and  was

otherwise fit to talk to the witnesses, we see no reason why he

could not have been taken to the hospital on a  motorcycle.

While PW­3 states that the deceased was wearing clothes, the

post­mortem report shows that the deceased was brought in an

underwear only.   The clothes of the deceased were found near

the well in a gunny bag.  But PW­7 did not consider it necessary

to  have the  blood  group examined by the  FSL,  which  in  our

opinion in the facts of the case is a major lapse.

12. The  post­mortem report  makes it evident that the chop

wounds could not have been caused by the small knife alleged to

have been recovered.   Fracture of the temporal bone with the

knife was an impossibility. PW­6 in the deposition ruled out that

the injury could be caused by a fall.   The post mortem did not

find any alcohol in the body of the deceased.   The witness also

opined that injury no. 4 could have been caused  while the

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deceased may have attempted to save himself from assault.  The

multiple injuries could certainly not have been caused by one

person and tells an entirely different story by itself that the

assailants  may have  been more  than one.  The chop  injuries

were possible by a moderate and heavy weapon like a  dao.   In

our opinion also, if the deceased  was of average built, it is

difficult to  accept,  according to  normal  prudence  and human

behaviour and capacity, that the appellant being a woman, could

have made such severe and repeated assault on the deceased,

who was her husband, with a small knife, without any resistance

and suffered no injury herself.  

13. PW­7 claimed to have found a knife with the smell of Dettol.

Even if  the knife had been wiped to erase traces of blood the

wooden handle could have revealed much if it had been sent to

the FSL.  The witness again offers no explanation why he did not

do so.   No bottle of Dettol has been recovered.   There is

absolutely no evidence that the deceased would often assault the

appellant and the minor child in a drunken condition.  The fact

that PW­7  did  not notice tears in the eyes of the appellant,

deemed as unnatural conduct by the courts below, cannot be

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sufficient to draw an adverse inference of guilt against the

appellant. The appellant being in a helpless situation may have

been stunned into a shock of disbelief by the death of her

husband. It is  not  uncommon human behaviour that  on the

death of a near relative, or upon witnessing a murderous

assault, a person goes into complete silence and stupor showing

no reaction or sensibility.  We also find it difficult to believe and

rely upon the evidence of CW­1 primarily because of her

minority. If the deceased had been assaulted by the appellant in

the room at night, it would certainly have led to noise and shouts

and the witness could not have possibly slept throughout

without waking up.

14. PW­1 deposed that he informed the police the next

morning at about 8:00 a.m.   But PW­7 has deposed that

information was given at  the police station by PW­1 at  about

12:00 p.m. on 11.05.2013 and the General Diary entry no. 452

made in the police station at 12.20 p.m., and the F.I.R.

registered at 7:45  p.m.   These are suspicious circumstances

which leaves enough time for  planning  after thinking for the

manner in which allegations were to be made for deflecting that

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the  occurrence  took place in  a  manner other than what  may

have happened actually.  

15.  In the background of the aforesaid discussion regarding the

nature of evidence and the manner of its appreciation, we deem

it proper to set out the English translation in the paper book of

defence taken by the  appellant  under  Section 313 Cr.P.C.  as

follows:­

“Ans: On the date of occurrence at about 8­ 8:30 while I have returned from my work at Satgaon, I saw that my husband was lying in the  room with  bleeding injury.  On my cry, Manoj Deka and his brothers come there with drink in the hand of one brother.  Thereafter I saw Manoj  Deka  was  putting  Dettol on the wound of  my husband.   I  also rang  to  108 ambulance.  When, I wanted to call police Manoj  Deka, snatched the phone from  me. On  my crying neighbouring peoples arrived there.   I tried to take my husband to medical but due to non­co­operation my Manoj Deka and others, I failed to take him to Medical.  On that night at  about 9.30 expired and Manoj Deka and other neighbours were sitting. Subsequently Manoj Deka has falsely implicated me.   I have the suspicion that my husband  was  physically  assaulted earlier  at some  place  by  Mintu  Nath,  Dipak  Das  and Jeetu Deka while taking liquor and brought by husband on injured condition and laid in the room.   I also saw the lock of  my room in broken condition, when I arrived here.  I have not killed my husband.  I am innocent.”  

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PW­2 has acknowledged in his evidence that he would have

drinks  with the deceased.   According to the post­mortem

report, the stomach of the deceased was found empty,

suggesting that the assault had taken place earlier in the

evening contrary to the evidence of PWs. 1, 2 and 3 suggesting

the assault in the late hours of the night by which time the

deceased would undoubtedly have had his dinner.

16. Section 313, Cr.P.C. cannot be seen simply as a part  of

audi alteram partem.   It confers a valuable right upon an

accused to establish his innocence and can well be considered

beyond a statutory right as a constitutional right to a fair trial

under  Article 21 of the  Constitution, even if it is not to be

considered as a piece of substantive evidence, not being on oath

under Section 313(2), Cr.P.C.   The importance of this right has

been considered time and again by this court, but it yet remains

to be applied in practice as we shall see presently in the

discussion to follow.  If the accused takes a defence after the

prosecution evidence is closed, under Section 313(1)(b) Cr.P.C.

the Court is duty bound under Section 313(4) Cr.P.C. to consider

the same.   The mere use of the word  ‘may’ cannot be held to

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confer a discretionary power on the court to consider or not to

consider such defence, since it constitutes a valuable right of an

accused for access to justice, and the likelihood of the prejudice

that may be caused thereby.  Whether the defence is acceptable

or  not  and whether it is  compatible  or incompatible  with  the

evidence available is an entirely different matter.   If  there has

been no consideration at all of the defence taken under Section

313 Cr.P.C., in the given facts of a case, the conviction may well

stand vitiated.  To our mind, a solemn duty is cast on the court

in dispensation of justice to adequately consider the defence of

the accused taken under Section 313 Cr.P.C. and to either

accept or reject the same for reasons specified in writing.

17. Unfortunately neither Trial Court nor the High Court

considered it necessary to take notice of, much less discuss or

observe with regard to the  aforesaid defence by  the appellant

under  Section  313  Cr.P.C. to either accept or reject it.   The

defence taken cannot be said to be irrelevant, illogical or fanciful

in the entirety  of the facts  and the  nature  of  other evidence

available as discussed hereinbefore. The complete non­

consideration thereof has clearly caused prejudice to the

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appellant. Unlike the prosecution, the accused is not required to

establish the defence beyond all reasonable doubt. The accused

has only to raise doubts on a preponderance of probability as

observed in  Hate Singh Bhagat Singh vs. State of Madhya

Bharat, AIR 1953 SC 468 observing as follows :­

“26. We have examined the evidence at length in this  case,  not  because  it is  our desire  to depart from our usual practice of declining to the  assess, the  evidence in  an  appeal  here, but because there  has been in this case a departure from the rule that when an accused person but for the word a reasonable defence which is likely to be true,…… then the burden on the other side becomes all the heavier because a reasonable and probable story likely to be true friend pitted against AV and vacillating case is bound to raise a reasonable doubts of which the accused  must get the benefit….”

A similar view is expressed in  M. Abbas vs. State of Kerala,

(2001) 10 SCC 103 as follows :­  

“10….On the other hand, the explanation given by the appellant both during the cross­ examination of prosecution witnesses and in his own statement recorded under Section 313 CrPC is quite plausible. Where an accused sets up a defence or offers an explanation, it is  well  settled that  he is  not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities….”  

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   18. The entirety of the discussion, in the facts and

circumstances of the case, the nature of evidence available

coupled with the manner of its consideration, leaves us satisfied

that the links in the chain of circumstances in a case of

circumstantial evidence, cannot be said to have been established

leading to the inescapable conclusion that the appellant was the

assailant of  the deceased,  incompatible with any possibility  of

innocence of the appellant.   The possibility that the occurrence

may have taken place in some other manner cannot be

completely ruled out.  The appellant is therefore held entitled to

acquittal on the benefit of doubt.  We accordingly order the

acquittal  and release of the appellant from custody  forthwith,

unless wanted in any other case.  

19. The appeal is allowed.     

…………….........J. [R.F. NARIMAN]

……...................J. [NAVIN SINHA]

NEW DELHI OCTOBER 31, 2018.

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