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Legal Article Non-Explanation By Accused In Section 313 CrPC Statement Cannot Be Used As A Link To Complete Chain Of Circumstances: SC
It must be mentioned before mentioning anything else that the Supreme Court has most recently on March 2, 2021 in a latest, learned, laudable and landmark judgment titled Shivaji Chintappa Patil vs State of Maharashtra in Criminal Appeal No. 1348 of 2013 in exercise of its criminal appellate jurisdiction has very rightly, remarkably and reasonably observed that false explanation or non-explanation of the accused to the questions posed by the court under Section 113 of the Code of Criminal Procedure, cannot be used as a link to complete the chain. The two Judge Bench of Apex Court comprising of Justice RF Nariman and Justice BR Gavai also made it clear that it can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the accused. Very rightly so!
To start with, the ball is set rolling in para 1 of this clear, cogent and convincing judgment authored by Justice BR Gavai for himself and Justice RF Nariman wherein it is put forth that, “This appeal assails the judgment and order delivered by the Division Bench of the High Court of Judicature at Bombay in Criminal Appeal No. 46 of 2005, thereby dismissing the appeal of the appellant and maintaining the conviction and sentence of the appellant as passed by the Additional Sessions Judge, Islampur in Sessions Case No. 39 of 2003 for offence punishable under Section 302 of the Indian Penal Code (For short ‘IPC’).”
To put things in perspective, the Bench then mentions in para 2 that, “The prosecution case in brief as could be gathered from the material placed on record is as under:-
Deceased Jayashree was married to the accused prior to about 8 or 9 years from the date of the incident. They were blessed with two issues. PW-3-Anandibai is the mother of deceased. PW-5-Ramchandra Chintappa is the brother of the appellant, who was residing separately in different part of the same house. It is the case of the prosecution, that the appellant was addicted to liquor and used to abuse and beat the deceased forcing her to get money from her mother. On the fateful night of 23rd March 2003, the accused and deceased went to sleep in their house. At the dawn of 24th March 2003, PW-5 gave a call to the appellant, so that they could go to their field for harvesting jawar crop. The accused opened the door and expressed his inability to accompany him to the field stating, that Jayashree had committed suicide by hanging. PW-4-Ramchandra Shankar resides near the house of the appellant as well as PW-5. PW-5 informed PW-4 about the incident. PW-5 went to the village Panumbre to inform the mother of deceased and other relatives about the incident. PW-5 went to Kokrud Police Station and gave information about death of the deceased. On the basis of information received from PW-5, initially Ad No.13/2003 came to be registered. Subsequently, crime came to be registered for the offence punishable under Section 302 IPC. As per the advance death certificate, the probable cause of death was asphyxia due to strangulation. The charge-sheet came to be filed before the jurisdictional Magistrate, First Class.”
As it turned out, the Bench then states in para 3 that, “The case was committed to the learned Sessions Judge. Charge was framed for the offence punishable under Section 302 IPC. The appellant pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial judge convicted the accused for the offence punishable under Section 302 IPC and sentenced him to imprisonment for life. Being aggrieved thereby, the appellant preferred an appeal before the High Court, which came to be dismissed. Hence, the present appeal.”
Be it noted, it is then pointed out in para 13 that, “In the present case, PW-6-Dr. Kishor Patki has been examined as a medical expert. He has conducted the autopsy along with his senior medical officer Dr. Tamboli. In the advance death certificate (Exh.-15), issued on 24th March 2003, under the signature of PW-6, the probable cause of death was ‘asphyxia due to strangulation’. However, in the Post-Mortem Report (Exh.-16) which is signed by Dr. Kishor Patki as well as Dr. Tamboli on 19th June 2003, the cause of death was ‘cardio respiratory arrest due to asphyxia due to hanging’. The only explanation for inordinate delay of almost 3 months in signing the Post-Mortem Report as given in his evidence by PW-6 is, that he was busy in some other work.”
It is also worth noting that it is then stated in para 14 that, “It will be relevant to refer to cross-examination of PW-6:-
“It is correct that in both cases of suicidal or homicidal hanging the ligature mark around the neck shall go upwards ears. It is correct that while issuing advance death certificate it did not consult senior medical officer and after consulting of senior medical officer and going through the books I concluded that it was a case of hanging. Article No. 1 can be used for suicidal hanging and in case of homicidal hanging or homidic strangulation the bodily resistance would have reflected other recorded in my presence wise.”
Quite ostensibly, the Bench then envisages in para 15 that, “It is thus clear, that the medical expert has admitted, that in both the cases of suicidal or homicidal hanging, the ligature marks around the neck shall go upwards ears. He has further admitted, that after consulting his senior medical officer and going through the books, he concluded that it was a case of hanging. He has further admitted, that Article No. 1 which is a rope, which is found on the spot, can be used for suicidal hanging. He has further admitted, that in case of homicidal strangulation, the bodily resistance would have been reflected.”
It would be quite apt to now also mention that it is then stated in para 16 that, “It will be apposite to refer to the judgment of this Court in the case of Eswarappa alias Doopada Eswarappa (supra), wherein this Court relied on Modi’s Medical Jurisprudence and Toxicology and observed thus:-
“7. In Modi's Medical Jurisprudence and Toxicology, 23rd Edn., p. 572 it is observed as follows: “Homicidal hanging, though rare, has been recorded. Usually, more than one person is involved in the act, unless the victim is a child or very weak and feeble, or is rendered unconscious by some intoxicating or narcotic drug. In a case, where resistance has been offered, marks of violence on the body and marks of a struggle or footprints of several persons at or near the place of the occurrence are likely to be found. None of the well-known signs referred to by the learned author are present in this case.””
What we also cannot be oblivious of is then stated in para 17 that, “In the present case also, admittedly, there are no marks on the body which would suggest violence or struggle. In any case, the medical expert himself has not ruled out the possibility of suicidal death. On the contrary, the Post-Mortem Report shows, that the cause of death was ‘asphyxia due to hanging’.”
As a corollary, the Bench then holds in para 18 that, “In the light of this evidence, we find, that the trial court as well as the High Court have erred in holding, that the prosecution has proved that the death of the deceased was homicidal.”
Most significantly, the Bench then elegantly, effectively and eloquently holds in para 24 that, “Another circumstance relied upon by the prosecution is, that the appellant failed to give any explanation in his statement under Section 313 Cr.P.C. By now it is well-settled principle of law, that false explanation or non-explanation can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the accused. However, it cannot be used as a link to complete the chain. Reference in this respect could be made to the judgment of this Court in Sharad Birdhichand Sarda (supra).”
Without mincing any words, the Bench then states quite upfront in para 25 that, “The High Court and the trial court have then relied on Section 8 of the Evidence Act about the conduct of the accused. It will be relevant to note, that PW-5-Ramchandra Chintappa who was the first informant, has stated in his evidence, that when he went to call the accused for going to the field for harvesting the crop of jawar, he informed him, that the deceased had committed suicide by hanging. Not only this, but on the basis of the report of the said witness, initially Ad No.13 of 2003 came to be registered. The evidence of this witness is also duly corroborated by the evidence of PW-4-Ramchandra Shankar. Both these witnesses are prosecution witnesses. We find, that the High Court and the trial court have failed to take into consideration the evidence of these witnesses.”
Needless to say, we need to pay full attention to what is then stated in para 26 that, “Though in a case of direct evidence, motive would not be relevant, in a case of circumstantial evidence, motive plays an important link to complete the chain of circumstances. The motive relied on by the prosecution is the ill-treatment by the appellant meted out to the deceased for not arranging the money from her mother. In this respect, the prosecution relies on the evidence of PW-3-Anandi, mother of the deceased. It will be relevant to refer to the cross-examination of the said witness:-
“….The accused and deceased had been to my house and stayed for four days few days prior to the incident…..””
More appropriately, the Bench then rightly observes in para 27 that, “PW-3-Anandi, mother of the deceased has stated, that the accused and deceased had been to her house and stayed for four days few days prior to the incident. It would thus show, that the relations between the deceased and accused were cordial. It will not be safe to rely on the uncorroborated evidence of such a witness.”
To be sure, it cannot be ignored that it is then rightly stated in para 28 that, “The prosecution has sought to rely on the evidence of PW-1- Nivrutti. However, his evidence is full of improvements and omissions. Even the trial court and the High Court have disbelieved his evidence.”
No wonder, the Bench then rightly points out in para 30 that, “In the present case, we are of the considered view that the prosecution has utterly failed to prove motive beyond doubt. As such, an important link to complete the chain of circumstances is totally absent in the present case.”
Frankly speaking, the Bench then forthrightly adds in para 31 that, “Insofar as the reliance placed by the learned counsel for the State on the judgment of Kashi Ram (supra) is concerned, it would reveal, that this Court had used the factor of non-explanation under Section 313 Cr.P.C. only as an additional link to fortify the finding, that the prosecution had established chain of events unquestionably leading to the guilt of the accused and not as a link to complete the chain. As such, the said judgment would not be applicable to the facts of the present case.”
Of immense significance is what is then stated in para 32 that, “It is more than settled principle of law that if two views are possible, the benefit shall always go to the accused. It will be apposite to refer to the following observations of this Court in the case of Sharad Birdhichand Sarda (supra):-
“163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh (1973) 2 SCC 808, this Court made the following observations : [SCC para 25, p. 820 : SCC (Cri) p. 1060]
“Another golden thread which runs through the web of the administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.””
Going ahead, the Bench then states in para 33 that, “This Court, recently, in the case of Devi Lal (supra) observed thus:-
“19. That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same.”
Finally, it is then held in the last para 34 that, “In the present case, we are of the considered view that let alone establishing chain of events which are so interwoven to each other leading to no other conclusion than the guilt of the accused, the prosecution has failed even to prove a single incriminating circumstance beyond reasonable doubt. As such, the appeal is allowed and the conviction and sentence passed by the trial court as affirmed by the High Court is set aside. The appellant is acquitted of all the charges and he is directed to be released forthwith if not required in any other case.”
To sum up, the Bench very rightly holds in para 24 and here only the gist of this para is stated as the entire para has already been stated above that, “By now it is well-settled principle of law, that false explanation or non-explanation can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the accused. However, it cannot be used as a link to complete the chain.” All the Judges of High Courts and Trial Courts must always follow what the two Judge Bench of Apex Court comprising of Justice RF Nariman and Justice BR Gavai have held in this case so clearly, cogently and convincingly! There can be just no denying it also!
