High Court of Punjab and HaryanaCRA-D/45/2010allowed

Ajayvir Singh v. State Of Haryana

2015-02-23Mr. Justice Jasbir Singh,Mr. Justice Jitendra Chauhan44 pages

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"One packet of clothes having six seals of the doctor PK, one sample seal and one packet of blood stained earth duly sealed with seal of IJ with sample seal.

One pistol 9 mm with 10 cartridges in one magazine duly sealed bringing back from Madhuban to MHC Kuldip Singh vide RC 6/553. He stated that during this period neither he nor anybody was allowed to tamper with the packets."

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( "Wound of entry The injury which was found on the person of the deceased were a lacerated oval wound of size 1.25 cm x 1 cm in front of left side of chest 7 cms below left nipple and 11 cm from mid line. Margins

were inverted. Collar of abrasion was present. Corresponding hole was present in the worn baniyan and shirt involving both leaves of pocket. Wound of exit A lacerated irregular wound of 2 cm x 1.5 cm size was present on the lateral aspect of right side of the chest in mid auxiliary line, 13 cm away from middle of auxiliary line. Margins were overted. Corresponding hole was present in the worn shirt. On probing wound of entry and exist were continuous, the direction being from left to right and horizontal. On dissection, there was track of laceration involving left chest wall, left lung, pericardium left ventricle right ventricle right lung and right chest wall. Both the ventricles were lacerated. Left and right lungs area intrack was lacerated. Thoracic cavities of right nd left side were full of liquid blood.

Pericardium was full of blood. Clotted blood was present at places. Infiltration of blood was present in the area. Wound of Entry A lacerated oval wound of 1.25 cm x 1 cm in front of left side of abdomen, 7 cm above unbilicus and 5 cm laterally from mid line. Margins of wound were inverted. Collar of abrasion was present. Corresponding hole was present in worn shirt and baniyan.

Wound of Exit A lacerated wound of 2 cm x 1.25 cms was present on back of right side of abdomen at

the level of L93 vertibra, 8 cms away from the mid line. Margins were everted. Corresponding hole was present on the worn shirt and baniyan. On probing wound of entry and exit were continuous. The direction being from left to right and downward. On dissection, there was track of laceration involving left anterior abdomen wall , small intestine and large intestine at many places, posterior abdomen wall on right side. Whole of abdomen cavity was full of blood. Clotted blood was present at places. Infiltration of blood was present in areas."

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The criminal justice system in this country is at crossroads. Many a times, reliable, trustworthy, credible witnesses to the crime seldom come forward to depose before the court and even the hardened criminals get away from the clutches of law. Even the reliable witnesses for the

prosecution turn hostile due to intimidation, fear and host of other reasons. The investigating agency has, therefore, to look for other ways and means to improve the quality of investigation, which can only be through the collection of scientific evidence. In this age of science, we have to build legal foundations that are sound in science as well as in law. Practices and principles that served in the past, now people think, must give way to innovative and creative methods, if we want to save our criminal justice system. Emerging new types of crimes and their level of sophistication, the traditional methods and tools have become outdated, hence the necessity to strengthen the forensic science for crime detection.

Oral evidence depends on several facts, like power of observation, humiliation, external influence, forgetfulness, etc. whereas forensic evidence is free from those infirmities. Judiciary should also be equipped to understand and deal with such scientific materials. Constant interaction of Judges with scientists, engineers would promote and widen their knowledge to deal with such scientific evidence and to effectively deal with criminal cases based on scientific evidence. We are not advocating that, in all cases, the scientific evidence is the sure test, but only emphasising the necessity of promoting scientific evidence also to detect and prove crimes over and above the other evidence."

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"8. In Sharad Birdhichand Sarda v. State of Maharashtra3, this Court after referring to various earlier decisions, formulated the following conditions to be fulfilled before a case against an accused can be said to be fully established based on circumstantial evidence: (SCC p. 185, paras 153954) "(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 Maharashtra4 where the following observations were made: [SCC p. 807, para 19 : SCC (Cri) p. 1047] '19. C 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, 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.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

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"25. In M.G. Agarwal v. State of Maharashtra15 this Court held, that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and

is entirely consistent with his guilt."

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* ** : F6 "Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence."

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< "In matters of direct testimony, if credence be given to the relators, the act of hearing and the act of belief, though really not so, seem to be contemporaneous. But the case is very different when we have to determine upon circumstantial evidence, the judgment in respect

of which is essentially inferential. There is no apparent necessary connection between the facts and the inference; the facts may be true, and the inference erroneous, and it is only by comparison with the results of observation in similar or analogous circumstances, that we acquire confidence in the accuracy of our conclusions. The term 'presumptive' is frequently used as synonymous with circumstantial evidence; but it is not so used with strict accuracy, The word 'presumption', ex vi termini, imports an inference from facts; and the adjunct 'presumptive', as applied to evidentiary facts, implies the certainty of some relation between the facts and the inference. Circumstances generally, but not necessarily, lead to particular inferences; for the facts may be indisputable, and yet their relation to the principal fact may be only apparent, and not real; and even when the connection is real, the deduction may be erroneous. Circumstantial and presumptive evidence differ, therefore, as genus and species.

The force and effect of circumstantial evidence depend upon its incompatibility with, and incapability of, explanation or solution upon any other supposition than that of the truth of the fact which it is adduced to prove; the mode of argument resembling the method of demonstration by the reductio ad absurdum."

28. Thus, in view of the above, the court must

consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused."

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"37. Be that as it may, we feel that only because the recovery of a weapon was made and the expert opined that the bullet found in the body of the deceased was fired from one of the weapons seized, by itself cannot be the sole premise on which a judgment of conviction under Section 302

could be recorded. There was no direct evidence. The accused, as noticed hereinbefore, was charged not only under Section 302 read with Section 34 of the Penal Code but also under Section 302 read with Section 1209B thereof. The murder of the deceased was said to have been committed by all the accused persons upon hatching a conspiracy. This charge has not been proved.

38.The learned trial Judge himself opined that the recovery having been made after nine months, the weapon might have changed in many hands. In absence of any other evidence connecting the accused with commission of crime of murder of the deceased, in our opinion, it is not possible to hold that the appellant on the basis of such slander evidence could have been found guilty for commission of offence punishable under Section 302 of the Penal Code."

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