It must be recalled that the well established rule of criminal justice is that 'fouler the crime higher the proof'.


CASE BRIEF: Sharad Birdhi Chand Sarda vs State Of Maharashtra


CITATION: 1984 AIR 1622, 1985 SCR (1) 88

COURT: Supreme Court of India

BENCH:  HON’BLE Mr. JUSTICE Fazalali,

HON’BLE JUSTICE MR. Sayed Murtaza

HON’BLE Mr. JUSTICE Varadarajan

HON’BLE Mr. JUSTICE A. Mukharji

HON’BLE Mr. JUSTICE Sabyasachi

DECIDED ON: 17 July, 1984

RELEVENT STATUTES:  The Constitution of India

The Indian Penal code, 1860

The Indian Evidence Act,1872

The code of Criminal Procedure,1973


Ø BRIEF FACTS & PROCEDURAL HISTORY:

1. The appellant, Rameshwar, Birdhichand Sarda, Ramvilas Rambagas Sarda, were accused 1, 2 and 3 respectively in Sessions Case No. 203 of 1982 on the file of the Additional Sessions Judge, Pune. The appellant and the second accused are the sons of one Birdhichand of Pune whose family has a cloth business.

2. The appellant is the husband of Manjushree alias Manju while the second accused is the husband of Anuradha (P.W. 35). Birdhichand's family has its residential house at Ravivar Peth in Pune and owns a flat in a building known as Takshasheela Apartments in Mukund Nagar area of Pune.

3. All the three accused were charged for the alleged offence of murder by poisoning on the night of 11/12.6.1982 of Manju the newly married wife of the first accused and the appellant herein under section 302 I.P.C. read with section 120B.

4. Accused No, 3 was also charged under section 201 read with Section 120B I.P.C. The whole case vested on the circumstantial evidence based on certain letters alleged to have been written by the deceased to some of the witnesses and other statements of the deceased to them and the medical report.

5. On an appreciation of the evidence the trial court found all the three accused guilty as charged, convicted them accordingly and sentenced the appellant to death under s.302 I.P.C. and all the three accused to rigorous imprisonment for two years and a fine of Rs. 2,000 each under s.120B I.P.C. but did not award any sentence under s.201 read with s.120B.

6.  The appellant and the other two accused file Criminal Appeal No. 265/83 against their conviction and the sentences awarded to them. The State filed a Criminal Revision application for enhancement of the sentence awarded to accused 2 and 3. The appeal as well as Criminal Revision application was heard along with confirmation case No. 3 of 1983 together by the Division Bench of the Bombay High Court which allowed the appellants appeal in part regarding his conviction and sentence under s.I1.2P0.BC . but confirmed his conviction and sentence of death awarded under  section 302 I.P.C., allowed the appeal of accused 2 and 3 in full and acquitted them and dismissed the Criminal Revision Application.

7. Hence the appellant alone has come up before the Supreme Court after obtaining Special Leave.


Ø ISSUES:

Is the conviction of appellant under section 302 of IPC by the High Court correct?


Ø RATIO OF THE COURT:

1.  Normally, the Supreme Court does not interfere with the concurrent findings of the fact of the courts below in the absence of very special circumstances or gross errors of law committed by the High Court.

2. But, where the High Court ignores or overlooks the crying circumstance and proved facts, or violates and misapplies the well-established principles of criminal jurisprudence or decision rendered by this Court on appreciation of circumstantial evidence and refuses to give benefit of doubt to the accused despite facts apparent on the face of the record or on its own finding or tries to gloss over them without giving any reasonable explanation or commits errors of law apparent on the face of the record which results in serious and substantial miscarriage of justice to the accused, it is the duty of this Court to step in and correct the legally erroneous decision of the High Court.

3. 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. The well-established rule of criminal justice is '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 cautious and meticulous approach necessarily had to be made by the Court.

4. The Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English law where only the statement which directly relate to the cause of death are admissible. The second part of cl.(1) of s.32, viz, "the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question" is not to be found in the English Law.

5. From a review of the various authorities of the Courts and the clear language. s.32(1) of Evidence Act, the following propositions emerge:

a. Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies. whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or relates to circumstances leading to the death. In this respect, Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of s.32 to avoid injustice.

b.  The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or very with the circumstances of each case. For instance, where death is a logical clumination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as on organic whole and not torn from the context

c. The second part of cl.1 of s.32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.

d. Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstance which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

e.  Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fell within the four corners of s.32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.

6. The court also observed must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction: (1) there is a clear motive for an accused to administer poison to the deceased, (2) that the deceased died of poison said to have been administered, (3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to the deceased.

7. The court observed that in the instant case, while two ingredients have been proved but two have not.It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law. However, where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.

8. Before a false explanation can be used as additional link, the following essential conditions must be satisfied:

1. Various links in the chain of evidence led by the prosecution have been satisfactorily proved;

2. The said circumstance point to the guilt of the accused with reasonable definiteness and;

3. The circumstances is in proximity to the time and situation.

If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend as assurance to the Court and not otherwise.

3. On the facts and circumstances of the present case this does not appear to be such a case. There is a vital difference between an incomplete chain of circumstances and a circumstance, which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is enable to prove any of the essential principles laid down in Hanumant's case the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea.

4. Before a case against an accused vesting on circumstantial evidence can be said to be fully established the following conditions must be fulfilled as laid down in Hanumat's v. State of M.P. [1953] SCR 1091, a. The circumstances from which the conclusion of guilt is to be drawn should be fully established; b. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis

except that the accused is guilty; c. The circumstances should be of a conclusive nature and tendency; d. They should exclude every possible hypothesis except the one to be proved; and

e.  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.

5. The cardinal principle of criminal jurisprudence is that a case can be said to be proved only when there is certain and explicit evidence and no pure moral conviction.

6. The court observed that the love and affection for the deceased would create a psychological hatred against the supposed murderer, the court has to examine the evidence of interested witnesses with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished.

7. In the instant case, the evidence clearly shows that two views are possible-one pointing to the guilt of the accused and the other leading to his innocence. It may be very likely that the appellant may have administered the poison (potassium cyanide) to Manju but at the same time a fair possibility that she herself committed suicide cannot be safely excluded or eliminated. Hence, on this ground alone the appellant is entitled to the benefit of doubt resulting in his acquittal.

8. In these circumstances, it cannot be said that a reasonable possibility of the deceased having committed suicide as alleged by the defence cannot be safely ruled out or eliminated. It is clear that the circumstances of the appellant having been last seen with the deceased and has administered the opinion has not been proved conclusively so as to raise an irresistible inference that Manju's death was a case of blatant homicide.

9. Further, in a matter of this magnitude it would be quite natural for the members of the appellants family to send for their own family doctor who was fully conversant with the ailment of every member of the family. In these circumstances there was nothing wrong if the appellant and his brother went to a distance of one and a half kilometer to get. Dr. Lodha.

10.  Viewing the entire evidence, the circumstance of the case and the interpretation of the decisions of the Supreme Court the legal and factual position was:

(i) that the five golden principles enunciated by the Supreme Court in Hanumant v. The State of M.P. [1952] SCR 1091 have not been satisfied in the instant case. As a logical corollary, it follows that cannot be held that the act of the accused cannot be explained on any other hypothesis except the guilt of the appellant nor can it be said that in all human probability, the accused had committed the murder of Manju.

(ii)  From the recital in the letters Ex. P30, Ex-P32 and Ex-P33 it can be safely held that there was a clear possibility and a tendency on the part of the deceased Manju to commit suicide due to desperation and frustration. There can be no doubt that Manju was not only a sensitive and sentimental women was extremely impressionate and the letters show that a constant conflict between her mind and body was going on and unfortunately the circumstances which came into existence hastened her end. People with such a psychotic philosophy or bent of mind always dream of an ideal and if the said ideals fails, the failure drives them to end their life, for they feel that no charm is left in their life;

(iii) The prosecution has miserably failed to prove one of the most essential ingredients of a case of death caused by administration of poison i.e.. possession with the accused (either by direct or circumstantial evidence) and on this ground alone the prosecution must fails.

(iv) That is appreciating the evidence, the High Court has clearly misdirected itself on many points, and has thus committed a gross error of law;

(v)  That the High Court has relied upon decisions of this Court which are either in applicable or which, on closer examination, do not support the view of the High Court being clearly distinguishable; That the High Court has taken a completely wrong view of law in holding that even though the prosecution may suffer from serious infirmities it could be reinforced by additional link in the nature of false defence in order to supply the lacuna and has thus committed a fundamental error or law;

(vi) That the High Court has not only misappreciated the evidence but has completely overlooked the well established principles of law and has merely tried to accept the prosecution case based on tenterhooks and slender tits and bits;

(vii) It is wholly unsafe to rely on that part of the evidence of Dr. Banerjee (PW 33) which shows that poison was forcibly administered by the process of mechanical suffociation;

(viii)  There is no manifest defect in the investigation made by the police which appears to be honest and careful. A proof positive of this fact is that even though Rameshwar Birdichand and other members of his family who had practically no role to play had been arraigned as accused but they had to be acquitted by the High Court for lack of legal evidence;

(ix) That in view of the findings two views are clearly possible in the present case, the question of defence being false does not arise.

11. Section 313 Criminal Procedure Code lays down that in every inquiry or trial for the purpose of enabling the accused personally to explain any circumstance appearing in the evidence against him, the court may at any stage without previously warning the accused, put such questions to him as the court considers necessary and shall, after the witnesses for the prosecution have been examined and before he is called for his defence, question him generally on the case


Ø DECISION HELD:

1. For the reasons given above the court held that the prosecution has failed to prove its case against appellant beyond reasonable doubt. We, therefore, allow the appeal, set aside the judgments of the courts below and acquit the appellant, Sharad Bridichand Sarda, of the charges framed against him and direct him to be released and set at liberty forthwith

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