sharp-edged weapon and evidence of witness Dr.
Naresh Raj that injuries no. 6 and 7 of Hemraj are
possible to have been caused by blunt object such
as golf stick and injury no. 3 may be caused by
scalpel cannot be accepted.
Another leg of argument is that Mr. A.G.L. Kaul
has clearly mentioned in his closure report that no
blood of Hemraj was found on the bed-sheet and
pillow of Aarushi, there is no evidence to prove that
Hemraj was murdered in the room of Aarushi,
scientific tests on Dr. Rajesh Talwar and Dr. Nupur
Talwar have not conclusively indicated their
involvement in the crime, the exact sequence of
events in the intervening night of 15/16.05.2008 to
6.00 A.M. in the morning is not clear, the offence
has taken place in an enclosed flat, hence, no eyewitnesses
are available and the circumstantial
evidence collected during the course of investigation
have critical and substantial gaps and there is
absence of clear-cut motive and non recovery of any
weapon of offence and their link either to the
servants or to the parents. It was also argued that
all the Exhibits collected from the room of Aarushi
were examined by P.W.-6 Dr. B.K. Mohapatra but he
has no where stated that blood of Hemraj and DNA
of Hemraj were found on any of Exhibits examined
by him. Similarly P.W.-25 Mr. S.P.R. Prasad has no
where stated that blood or DNA of Hemraj were
found in the Exhibits examined by him and even
biological fluid like semen could not be detected in
the undergarments of Hemraj and as such it
becomes pellucid that from the evidence it is not
established that both the deceased were engaged in
Page 42
sexual intercourse which may have enraged the
accused Dr. Rajesh Talwar to eliminate the
deceased persons and D.W.-3 Dr. Urmil Sharma had
categorically stated in her evidence that in a girl of
about 13-14 years of age, due to hormonal changes
between two menstrual cycles, there is normal
physical and biological discharge which is of white
colour and appears at the cervix; if there is more
discharge, then the same can flow out of the vaginal
canal and through the vaginal opening; normal
physiological and biological discharge will not stick
to vaginal wall unless and until one does not get
infected; without microscopic examination it cannot
be found out and said whether the discharge is
biological discharge or from an outside source;
during the course of vaginal examination, the
vaginal canal cannot be seen unless both labia are
separated with the help of an instrument; the labia
are separated with the hand and for the purposes of
seeing the vaginal canal, a speculum has to be
inserted, only then the vaginal canal will be seen; if
the dead body of 13-14 years old girl is examined
for the purposes of her vaginal examination, then
the vaginal orifice shall not be found open and the
vaginal canal cannot be seen; in case of a girl who
has a torn hymen (old torn) and is used to sexual
intercourse, if after her death and during the course
of rigor mortis, her vagina is cleaned, then in that
situation, the mouth of the vagina shall not remain
open; in a case where rigor mortis has started and
after an hour the vagina is opened and cleaned with
cotton, even then the mouth of the vagina will
remain closed and even if rigor mortis has
Page 43
developed all over the body and if someone
attempts to forcibly open the vagina, then definitely,
there will be injury marks in the vagina and it may
remain open.
Mr. Mir has also invited my attention towards
the evidence of D.W.-4 Dr. R.K. Sharma who too has
deposed that in a case where the rigor mortis has
just started or has developed and if someone tries to
interfere with the vaginal cavity or genital organs,
then in that area, perimortem injuries will be
caused, which will depend upon how much force was
used; in this area, one is bound to see bruises,
lacerations, tears and during the course of
postmortem, these would be clearly visible; the
injures which are caused after the death, they are
called perimortem injuries; if during the course of
postmortem, the postmortem doctor while
conducting vaginal examination finds that the
vaginal orifice is opened and vaginal cavity is
visible, then in this situation ‘no abnormality
detected’ cannot be written in the postmortem
examination report; no subjective finding can be
given; in the postmortem examination report of
Hemraj Dr. Naresh Raj has written that eyes were
protruding out, blood oozing out of mouth and
nostrils, stomach was distended and there was
swelling in the penis which are all signs of
putrification and therefore, swelling in the penis and
scrotum was an account of putrification of the dead
body and not because of sexual intercourse and
thus it is manifest that theory of grave and sudden
provocation can hardly be believed and the spun
and structure of the prosecution story is devoid of
Page 44
reality and the accused deserve compurgation by
giving them benefit of doubt. To buttress his
arguments, Mr. Mir has placed reliance on
Shambhu Nath Mehra Vs. State of Ajmer AIR
1956 SC 404, V.D. Jhingan Vs. State of U.P. AIR
1966 SC 1762 (3JJ), Kali Ram Vs. State of
Himachal Pradesh (1973) 2 SCC 808 (3JJ),
Yogendra Morarji Vs. State of Gujarat (1980) 2
SCC 218 (3JJ), Shankarlal Gyarasilal Vs. State
of Maharashtra (1981) 2 SCC 35 (3JJ), Sharad
Birdhichand Sarda Vs. State of Maharashtra
(1984) 4 SCC 116 (3JJ), Padala Veera Reddy Vs.
State of A.P. 1989 Supp (2) SCC 706 (3JJ),
State of H.P. Vs. Jai Lal 7 Ors. (1999) 7 SCC
280, Shamnsaheb M. Multtani Vs. State of
Karnataka (2001) 2 SCC 577 (3JJ), Kajal Sen
Vs. State of Assam (2002) 2 SCC 551, Mousam
Singha Roy Vs. State of WB (2003) 12 SCC 377,
Anil Sharma Vs. State of Jharkhand (2004) 5
SCC 679, Gaffar Badshaha Pathan Vs. State of
Maharashtra (2004) 10 SCC 589, P.Mani Vs.
State of T.N. (2006) 3 SCC 161, Vikram Jeet
Singh vs. State of Punjab (2006) 12 SCC 306,
Ramesh Chandra Agarwal Vs. Regency
Hospital Ltd. (2009) 9 SCC 709, Subramaniam
Vs. State of T.N. (2009) 14 SCC 415, Niranjan
Panja Vs. State of West Bengal (2010) 6 SCC
525, Babu Vs. State of Kerala (2010) 9 SCC
189, Sunil Kumar Sambhudayal Vs. State of
Maharashtra (2010) 13 SCC 657, Kalyan Kumar
Gogoi Vs. Ashutosh Agnihotri (2011) 2 SCC
532, Govind Raju @ Govind Vs. State (2012) 4
SCC 722, Manik Gawali Vs. State of
Page 45
Maharashtra Crl. Appeal No. 292 of 2006
decided by Hon’ble High Court of Bombay, Rishipal
Vs. State of Uttarakhand 2013 Cr.L.J. 1534 and
Joydeb Patra Vs. State of West Bengal 2013
Cr.L.J. 2729.
Countervailing the submissions of learned
counsel for the accused it was vehemently argued
on behalf of prosecution that from the evidence on
record it brooks no dispute that whitish discharge
was found in the vagina of Ms. Aarushi at the time of
postmortem examination of her dead body which
conclusively demonstrates that both the accused
were indulged in sexual intercourse and the bedsheet
below the pelvic region of the deceased Ms.
Aarushi was found wet and no biological fluid was
detected during the examination of bed-sheet; the
string of trouser of Ms. Aarushi was found untied; Tshirt
of Ms. Aarushi was just above the waist and
trouser was just below the waist as is evident from
the perusal of photographs material Exhibits-1, 2
and 4 which clearly suggest that both the deceased
were seen on the job and hence they were
eliminated and the accused were knowing this fact
and hence apprehensive that in the postmortem
examination report of Ms. Aarushi the evidence of
coitus may surface and therefore, Dr. Sushil
Chaudhary of Eye Care Hospital, Sector-26,
N.O.I.D.A. made a telephone call to previously
acquainted P.W.-7 K.K. Gautam, a retired police
officer to see that no observation regarding
evidence of sexual intercourse should come in the
postmortem examination report and this fact is
abundantly proved from the call-detail records of Dr.
Page 46
Dinesh Talwar, brother of the accused Dr. Rajesh
Talwar, Dr. Sushil Chaudhary and Mr. K.K. Gautam. It
was also argued that P.W.-5 Dr. Sunil Kumar Dohre
has deposed that when he was going towards the
postmortem examination room then Dr. Dinesh
Talwar gave him a cell-phone and told him to talk
with Dr. T.D. Dogra of Forensic Medicines, A.I.I.M.S
and then he talked with Dr. Dogra. It was also
harangued that indubitably both the murders were
committed in the night of 15/16.05.2008 within the
four-wall of flat no. L-32 and as such in the given
circumstances the prosecution is not bound to
explain each and every hypothesis put forward by
the accused persons and since from the prosecution
evidence it is established that the murders were
committed inside the flat no. L-32 and both the
accused were present there in the night and
therefore, when prima facie the prosecution has
proved the presence of the accused persons inside
the flat in the fateful night and hence in view of the
provisions as contained in section 106 of the
Evidence Act, it was obligatory on the part of the
accused persons to rule out the theory of grave and
sudden provocation as also to establish that
somebody else other than the accused persons has
committed the murders which they could not
establish and therefore, in these circumstances the
arguments of the learned counsel for the accused
deserve to be rejected.
I have cogitated over the rival submissions
made on either side. Admittedly, the case in hand is
not based on percipient evidence and rather hinges
on circumstantial evidence. To begin at the
Page 47
beginning, it appears apposite to deal with the
concept of proof beyond reasonable doubt. Mr. Ram
Gopal in “India of Vedic Kalpsutras” has stated
at page no. 201 that even under the ancient system
of administration of Criminal justice, the benefit of
doubt was always given to the accused. So
Apastamba laid down that “u% p~% lUnsgs n.Me~
dqfj;kr~” (the king should not punish any person in
case of doubt).
It will be apposite to refer to Para 5.25 of the
report of the committee on Reforms of Criminal
Justice System Volume 1, 2003 which considered the
historical background of the principle of ‘Proof
beyond reasonable doubt’.
Para 5.25- “The principle of proof beyond
reasonable doubt was evolved in the context of the
system of jury trial in the United Kingdom. The
verdict on the guilt of the accused was the
responsibility of the jury. The jury consisted of
ordinary citizens in the locality. As they are not
trained judges, they may jump to the conclusion
without due care and concern for the rights of the
accused. Therefore, standard of proof beyond
reasonable doubt appears to have been evolved for
the guidance of the jury. That principle which was
originally meant for the guidance of the jury is being
followed by all the courts of the countries which
follow common law”.
It appears seemly to trace the concept of proof
beyond reasonable doubt as evolved by superior law
courts of England and India. In Miller Vs. Minister
Page 48
or Pensions (1947) All England Law Reports
372 (Vol.2) Lord Denning J. observed, “I…………
proof beyond reasonable doubt does not mean proof
beyond the shadow of a doubt. The law would fail to
protect the community if it admitted fanciful
possibilities to deflect the course of justice. If the
evidence is so strong against a man as to lead only
to a remote possibility in his favour which can be
dismissed with the sentence “of course, it is
possible, but not in the least probable” the case is
proved beyond doubt…….”.
The concept of benefit of doubt has been
explained in many decisions which have consistently
been followed in a catena of cases, and are referred
to infra for ready reference:-
A stream of rulings of the Hon’ble Supreme
Court commencing with the M.G. Agarwal Vs.
State of Maharashtra (1963) 2 SCR 405, 491:
AIR 1963 SC 200: (1963) 1 Cri LJ 235 and
climaxed by Sujit Biswas Vs. State of Assam
2013 (82) ACC 467 (SC) has settled the law on
this aspect and there is no legal maelstrom about it.
In M.G. Agarwal Vs. State of Maharashtra
(1963) 2 SCR 405, 491: AIR 1963 SC 200:
(1963) 1 Cri LJ 235, it was observed by the
Constitution Bench of the Hon’ble Supreme Court as
below:-
“It is a well established rule in criminal
jurisprudence that circumstantial evidence can be
reasonably made the basis of an accused person’s
conviction if it is of such a character that it is wholly
inconsistent with the innocence of the accused and
Page 49
is consistent only with his guilt. If the circumstances
proved in the case are consistent either with the
innocence of the accused or with his guilt, then the
accused is entitled to the benefit of doubt. There is
no doubt or dispute about this position. But in
applying this principle, it is necessary to distinguish
between facts which may be called primary or basic
on the one hand and inference of facts to be drawn
from them on the other. In regard to the proof of
basic or primary facts the court has to judge the
evidence in the ordinary way and in the appreciation
of evidence in respect of the proof of these basic or
primary facts there is no scope for the application of
the doctrine of benefit of doubt. The court considers
the evidence and decides whether that evidence
proves a particular fact or not. When it is held that a
certain fact is proved, the question arises whether
that fact leads to the inference of guilt of the
accused person or not, and in dealing with this
aspect of the problem, the doctrine of benefit of
doubt would apply and an inference of guilt can be
drawn only if the proved fact is wholly inconsistent
with the innocence of the accused and is consistent
only with his guilt.”
The following observations made in Himachal
Pradesh Administration Vs. Om Prakash AIR
1972 SC 975 are also very pertinent.
“………The benefit of doubt to which the
accused is entitled is reasonable doubt- the doubt
which rational thinking man will reasonably,
honestly and conscientiously entertain and not the
doubt of a timid mind which fights shy- though
unwittingly it may be- or is afraid of the logical
Page 50
consequences, if that benefit was not given or as
one great judge said “it is not the doubt of the
vacillating mind that has not the moral courage to
decide by shelters itself in a vain and idle
scepticism.” It does not mean that the evidence
must be so strong as to exclude even a remote
possibility that the accused could not have
committed the offence. If that were so, the law
would fail to protect society as in no case can such a
possibility be excluded. It will give room for fanciful
conjectures or untenable doubts and will result in
deflecting the course of justice if not thwarting it all
together. It for this reason that the phrase has been
criticized…….. The mere fact that there is a remote
possibility in favour of accused is itself sufficient to
establish the case beyond reasonable doubts. This
then is the approach.”
In Jennison Vs. Baker 1972 (1) ALL ER
997=(1972) 2 QB 52, it was pithily stated: “Law
should not be seen to sit by limply, while those who
defy it go free, and those who seek its protection
lose hope.” Increasingly people are believing as
observed by Salmond quoted by Diogenes Laertius
in “Lines of the philosophers” laws are like spiders’
webs, if some light or powerless thing falls into
them, it is caught, but bigger one can break through
and get away. Jonathan Swift in his “Essay on the
Faculties of the Mind” said in similar lines: “laws are
like of cob webs, which may catch small flies, but let
wasps and hornets break through.”
In Shivaji Sahabrao Bobade and another Vs.
State of Maharashtra (1973) 2 SC 793, it was
observed by a three Judge Bench of the Hon’ble
Page 51
Supreme Court- “Even at this stage we may remind
ourselves of a necessary social perspective in
criminal cases which suffers from insufficient
forensic appreciation. The dangers of exaggerated
devotion to the rule of benefit of doubt at the
expense of social defence and to the soothing
sentiment that all acquittals are always good
regardless of justice to the victim and the
community, demand especial emphasis in the
contemporary context of escalating crime and
escape. The judicial instrument has a public
accountability. The cherished principles or golden
thread of proof beyond reasonable doubt which runs
through the web of our law should not be stretched
morbidly to embrace every hunch, hesitancy and
degree of doubt. The excessive solicitude reflected
in the attitude that a thousand guilty men may go
but one innocent martyr shall not suffer is a false
dilemma. Only reasonable doubts belong to the
accused. Otherwise any practical system of justice
will then break down and lose credibility with the
community. The evil of acquitting a guilty person
light heartedly as a learned author (Glanville
Williams in ‘Proof of Guilt’) has sapiently observed,
goes much beyond the simple fact that just one
guilty person has gone unpunished. If unmerited
acquittals become general, they tend to lead to a
cynical disregard of the law, and this in turn leads to
a public demand for harsher legal presumptions
against indicated ‘persons’ and more severe
punishment of those who are found guilty. Thus, too
frequent acquittals of the guilty may lead to a
ferocious penal law, eventually eroding the judicial
Page 52
protection of the guiltless. For all these reasons it is
true to say, with Viscount Simon, that “a miscarriage
of justice may arise from the acquittal of the guilty
no less than from the conviction of the innocent…..
In short, our jurisprudential enthusiasm for
presumed innocence must be moderated by the
pragmatic need to make criminal justice potent and
realistic. A balance has to be struck between
chasing chance possibilities as good enough to set
the delinquent free and chopping the logic of
preponderant probability to punish marginal
innocents”.
In State of Punjab Vs. Jagir Singh Baljit
Singh AIR 1973 SC 2407, it was again observed
that “A criminal trial is not like a fairy tale wherein
one is free to give flight to one’s imagination and
fantasy. It concerns itself with the question as to
whether the accused arraigned at the trial is guilty
of the crime with which he is charged. Crime is an
event in real life and is the product of an interplay of
different human emotions. In arriving at the
conclusion of a crime, the court has to judge the
evidence by yardstick of probabilities, its intrinsic
worth and the animus of the witnesses. Every case
in the final analysis would have to depend upon its
own facts. Although the benefit of every reasonable
doubt should be given to the accused, the court
should not at the same time reject evidence which is
ex facie trustworthy on grounds which are fanciful or
in the nature of conjectures.”
In Dharam Das Wadhwani Vs. State of U.P.
(1974) 4 SCC 267, it has been observed that the
rule of benefit of reasonable doubt does not imply a
Page 53
frail willow bending to every whiff of hesitancy.
Judges are made of sterner stuff and must take a
practical view of legitimate inferences flowing from
evidence, circumstantial or direct. At the same time,
it may be affirmed, as pointed out in Kali Ram Vs.
State of H.P. (1973) 2 SCC 808 that if reasonable
doubt arises regarding the guilt of accused, the
benefit of that cannot be withheld from him. If crime
is to be punished gossamer web niceties must yield
to realistic appraisals. The test that the accused
must be guilty and not may be guilty should not be
confused with exclusion of every contrary possibility.
This court is conscious, to quote great American
Judge Justice Holmes, of the “felt necessities of
time”. In Narottam Singh Vs. State of Punjab
and others 1980 SCC (Crl.) 113, it has been held
that the “sacred cows” of shadowy doubts and
marginal mistakes, processual or other, can not
deter the court from punishing crime where it has
been sensibly and substantially brought home.
In State of Haryana Vs. Bhagirath (1999) 5
SCC 96, it was observed:
“…… But the principle of benefit of doubt belongs
exclusively to criminal Jurisprudence. The pristine
doctrine of benefit of doubt can be invoked when
there is a reasonable doubt regarding the guilt of
accused. It is the reasonable doubt which a
conscientious judicial mind entertains on a
conspectus of the entire evidence that the accused
might not have committed the offence, which
affords the benefit to accused at the end of the
criminal trial. Benefit of doubt is not a legal dosage
Page 54
to be administered at every segment of the
evidence, but any advantage to be afforded to the
accused at the final end after consideration of the
entire evidence, if the judge conscientiously and
reasonably entertains doubt regarding the guilt of
the accused.
It is nearly impossible in any criminal trial to
prove all the elements with a scientific precision. A
criminal court could be convinced of the guilt only
beyond the range of a reasonable doubt. Of course,
the expression “reasonable doubt” is incapable of
definition. Modern thinking is in favour of the view
that proof beyond a reasonable doubt is the same as
proof which affords moral certainty to the judge.
Francis Wharton, a celebrated writer on criminal
law in the United States has quoted from judicial
pronouncements in his book Wharton’s Criminal
Evidence (at p. 31, Vol. 1 of the 12th Edn.) as
follows:-
“It is difficult to define the phrase ‘reasonable
doubt’. However, in all criminal cases a careful
explanation of the term ought to be given. A
definition often quoted or followed is that given by
Chief Justice Shaw in the Webster case. He says: ‘It
is not mere possible doubt, because everything
relating to human affairs and depending upon moral
evidence is open to some possible or imaginary
doubt. It is that state of the case which, after the
entire comparison and consideration of all the
evidence, leaves the minds of the jurors in that
consideration that they cannot say they feel an
Page 55
abiding conviction to a moral certainty of the truth
of the charge.’ ”
In the treatise The Law of Criminal Evidence
authored by H.C. Underhill it is stated (at p. 34,
Vol. 1 of the 5th Edn.) thus:
“The doubt to be reasonable must be such a
one as an honest, sensible and fair-minded man
might, with reason, entertain consistent with a
conscientious desire to ascertain the truth. An
honestly entertained doubt of guilt is a reasonable
doubt. A vague conjecture or an inference of the
possibility of the innocence of the accused is not a
reasonable doubt. A reasonable doubt is one which
arises from a consideration of all the evidence in fair
and reasonable way. There must be a candid
consideration of all the evidence and if, after this
candid consideration is had by the jurors, there
remains in the minds a conviction of the guilt of the
accused, then there is no room for a reasonable
doubt.”
In Municipal Corporation of Delhi Vs. Ram
Kishan Rohtagi (1983) 1 SCC-1, Takhaji Hiraji
Vs. Thakur Kuber Singh Chaman Singh &
others (2001) 6 SCC 145 (3 JJ), it was observed
that benefit of doubt must always be reasonable and
not fanciful. In Krishna & others Vs. State (2003)
7 SCC 56, Batcu Vainkateshwarlu and others
Vs. Public Prosecutor, High Court of A.P. 2009
(1) CCSC 1 (3JJ), Murugam Vs. State 2009 (1)
UP Cr.R. 74 (SC), State through CBI Vs.
Mahendra Singh Dahiya AIR 2011 SC 1017,
Iqbal Moosa Patel Vs. State of Gujarat 2011
Page 56
Cr.L.J. 1142 (SC), Chhotanney & others Vs.
State of U.P. & others AIR 2009 SC 2013,
Valson and others Vs. State of Kerala (2009) 2
SCC (Crl.) 208 and Bhaskar Ramappa Madar &
others Vs. State of Karnataka 2009 Cr.L.J.
2422 (SC), it has been held that to constitute a
reasonable doubt, it must be free from a over
emotional response and zest for abstract
speculation. Doubts must be actual and substantial
doubts as to the guilt of the accused persons. A
reasonable doubt is not an imaginary, trivial or a
merely possible doubt, but a fair doubt based upon
reason and common sense. In Devendra Pal Singh
Vs. State of N.C.T. of Delhi (2002) 5 SCC 234
and Sucha Singh & others Vs. State of Punjab
(2003) 7 SCC 643 it has been held that proof
beyond reasonable doubt is a guideline, not a fetish.
In Ramesh Harijan Vs. State of U.P. (2012) 5
SCC 777, Nagesh Vs. State of Karnataka 2012
(77) ACC 900 and Sujit Biswas Vs. State of
Assam 2013 (82) ACC 467, it was again observed
that proof beyond reasonable doubt is not
imaginary, trivial or merely possible doubt. It is a fair
doubt based upon reason or common sense.
Ergo, this court cannot be oblivious that in a
criminal trial suspicion no matter how strong cannot
and must not be permitted to take place of proof.
This is for the reason that the mental distance
between ‘may be’ and ‘must be’ is quite large and
divides vague conjectures from sure conclusions.
Mere conjectures or suspicion do not take the place
of legal proof. The large distance between ‘may be
true’ and ‘must be true’, must be covered by way of
Page 57
clear, cogent and unimpeachable evidence produced
by the prosecution before an accused is condemned
as a convict and the basic golden rule must be
applied. It is also to be remembered that in the case
of Narendra Kumar Vs. State (N.C.T. of Delhi)
(2012) 7 SCC 171, it has been held that the
prosecution has to prove its own case beyond the
reasonable doubts and cannot take support from the
weakness of the case of defence and hence there
must be proper and legal evidence to record the
conviction of the accused. Recently, in Mohd.
Faizan Ahmad Vs. State of Bihar (2013) 2 SCC
131, the Hon’ble Apex Court has again cautioned by
making observation that suspicion however grave
cannot take the place of proof. Grave violence to
basic tenets of criminal jurisprudence would occur if
in absence of any credible evidence, criminal courts
are swayed by gravity of offence and proceed to
hand out punishment on that basis. The
observations made by the Hon’ble Supreme Court in
Oma Vs. State of T.N. (2013) 3 SCC 440 that a
judge trying a criminal case has a sacred duty to
appreciate the evidence in a seemly manner and is
not to be governed by any kind of individual
philosophy, abstract concepts, conjectures and
surmises and should never be influenced by some
observations or speeches made in certain quarter of
the society but not in binding judicial precedents
have also to be kept in mind.
It also appears apposite to keep in mind the
following observations, although in different context,
of the Hon’ble Supreme Court in National Textile
Page 58
Workers’ Union v P.R. Ram Krishna (1983)1
SCC 228-
“We cannot allow the dead hand of the past to
stifle the growth of the living present. Law cannot
stand still; it must change with the changing social
concepts and values. If the bark that protects the
tree fails to grow and expand along with the tree, it
will either chop the tree or if it is a living tree it will
shed that bark and grow a new living bark for itself.
Similarly, if the law fails to respond to the needs of
changing society, then either it will stifle the growth
of the society and choke its progress or if the society
is vigorous enough it will cast away the law which
stands in the pathway of its growth. Law must
therefore constantly be on the move adapting itself
to the fast changing society and not lag behind.”
The law on circumstantial evidence is not
tenebrous. In an Essay on the Principles of
Circumstantial Evidence by William Wills by T. & J.W.
Johnson & Company 1872, the concept of
circumstantial evidence has been explained as
under:-
“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
essential 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
Page 59
observation in similar or analogous circumstances,
that we acquire confidence in the accuracy of
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; 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 on 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 arguments
resembling the method of demonstration by the
reductio ad absurdum.”
In Hanumant Govind Nargundkar Vs. State
of M.P. AIR 1952 SC 343, Bhagat Ram Vs. State
of Punjab AIR 1954 SC 621, Eradu Vs. State of
Hyderabad AIR 1956 SC 316, Hukum Singh Vs.
State of Rajasthan AIR 1977 SC 1063, Gambhir
Vs. State of Maharashtra (1982) 2 SCC 351,
Eara Bhadrappa Vs. State of Karnataka AIR
1983 SC 446, Sharad Birdhi Chand Sarda Vs.
Page 60
State of Maharashtra (1984) 4 SCC 116, State
of U.P. Vs. Sukhbasi AIR 1985 SC 1224,
Balwinder Singh Vs. State of Punjab AIR 1987
SC 350, Ashok Kumar Chatterjee Vs. State of
M.P. AIR 1989 SC 1890, Padala Veera Reddy
Vs. State of A.P. 1989 Supplementary (2) SCC
706, Tanvibex Pankaj Kumar Divetia Vs. State
of Gujarat (1997) 7 SCC 156, Anthony D’souza
and others Vs. State of Karnataka 2003 (46)
ACC 318 (SC- 3JJ), State of Rajasthan Vs.
Kheraj Ram (2003) 8 SCC 224, State of U.P. Vs.
Satish AIR 2005 SC 1000, Birendra Poddar Vs.
State of Bihar (2011) 6 SCC 350, C. Changa
Reddy Vs. State of A.P. 1997 JIC 258 (SC),
State of U.P. Vs. Ram Balak (2008) 15 SCC
551, Inspector of Police, T.N. Vs. John David
2011 (2) JIC 529 (SC), Ram Reddy Rajesh
Khanna Reddy Vs. State of A.P. (2006) 10 SCC
172, Anil Kumar Singh Vs. State of Bihar
(2003) 9 SCC 67, Reddy Sampath Kumar Vs.
State of A.P. (2005) 7 SCC 603, Sattatiya Vs.
State of Maharashtra (2008) 3 SCC 210, Bharat
Vs. State of M.P. (2003) 3 SCC 106, State of
Goa Vs. Pandurang Mohite (2008) 16 SCC 714,
Vijay Kumar Arora Vs. State (N.C.T.) Of Delhi
(2010) 2 SCC 353, Sidharth Vashistha @ Manu
Sharma Vs. State (N.C.T. of Delhi) 2010 (69)
ACC 833 (SC): (2010) 6 SCC 1, G. Parswanath
Vs. State of Karnataka (2010) 5 SCC 593,
Bhagwan Dass Vs. State (N.C.T.) of Delhi AIR
2011 SC 1863, Rukia Begum Vs. State of
Karnataka (2011) 4 SCC 779, Kulvinder Singh
Vs. State of Haryana (2011) 5 SCC 258,
Page 61
Mohammad Mannan @ Abdul Mannan Vs. State
of Bihar (2011) 5 SCC 317, Mustakeem @
Sirajuddin Vs. State of Rajasthan 2011 Cr.L.J.
4920 (SC) Brajendra Singh Vs. State of M.P.
(2012) 4 SCC 289, Dhananjoy Chatterjee Vs.
State of West Bengal (1994) 2 SCC 220, Shivu
Vs. State of Karnataka (2007) 4 SCC 713,
Shivaji Vs. State of Maharashtra (2008) 15 SCC
269, Abu Bucker Siddique Vs. State AIR 2011
SC 91, Jagroop Singh Vs. State of Punjab AIR
2012 SC 2600 , Tulsi Ram Sahadu Suryavanshi
Vs. State of Maharashtra (2012) 10 SCC 373,
Madhu Vs. State of Kerala 2012 (1) JIC 609
(SC), Pudhu Raja Vs. State 2012 (79) ACC 642
(SC) and Raj Kumar Singh @ Raja Vs. State of
Rajasthan (2013) 5 SCC 722, it has consistently
been held that in the case based on circumstantial
evidence the circumstances must unerringly lead to
one conclusion consistent only with the hypothesis
of the guilt of the accused and in case of
circumstantial evidence every incriminating
circumstance must be clearly established by reliable
and clinching evidence. Circumstances so proved
must form a chain of events from which the only
irresistible conclusion that could be drawn is the
guilt of the accused and that no other hypothesis
against the guilt is possible.
Constitution Bench of the Hon’ble Supreme
Court in Govinda Reddy Vs. State of Mysore AIR
1960 SC 29, after following the principle laid in
Hanumant Govind Nargunkar Vs. State of M.P.
AIR 1952 SC 343 has held that there must be a
chain of evidence so complete as not to leave any
Page 62
reasonable doubt for a conclusion consistent with
that innocence of the accused and it must be shown
that within all human probability the act must have
been committed by the accused.
In Dharam Das Wadhwani Vs. State of U.P.
(1974) 4 SCC 267, it has luculently been held that
“every evidentiary circumstance is a probative link,
strong, or weak, and must be made out with
certainty. Link after link, forged firmly by credible
testimony may form a strong chain of sure guilt
binding the accused. Each link taking separately
may just suggest but when hooked on to the next
and on again may manacle the accused inescapably.
Only then can a concatenation of incriminating facts
suffice to convict a man”.
Chief Justice Fletcher Moulton once observed
that “proof does not mean rigid mathematical
formulae since “that is impossible”. However
proof must mean such evidence as would induce a
reasonable man to come to a definite conclusion.
Circumstance evidence on the other hand, has been
compared by Lord Coleridge “like a gossamer
thread, light and as unsubstantial as the air
itself and may vanish with the merest of
touches.”
While appreciating circumstantial evidence, we
must remember the law as laid down in Ashraf Ali
Vs. Emperor (43 Indian Cases 241 at para 14)
that when in a criminal case there is conflict
between presumption of innocence and any other
presumption, the former must prevail. In Gagan
Kanojia Vs. State of Punjab 2007 (1) Allahabad
Page 63
Criminal Rulings 231 (SC), it has been held that
the prosecution must prove that within all human
probabilities the act must have been done by the
accused. The prosecution case, thus, must be
judged in its entirety having regard to the totality of
the circumstances. The approach of the court should
be an integrated one and not truncated or isolated.
The court should use the yard-stick of probability
and appreciate the intrinsic value of the evidence
brought on records and analyze and assess the
same objectively.
In Dr. Sunil Clifford Daniel Vs. State of
Punjab 2012 Cr.L.J. 4657 (SC), Prakash Vs.
State of Rajasthan (2013) 4 SCC 668,
Vadlakonda Lenin v State of U.P. 2013(81) ACC
31 (SC) and Majenderan Langeswaran Vs.
State (N.C.T. of Delhi) & others (2013) 7 SCC
192, it has been reiterated that in a case of
circumstantial evidence the prosecution must
establish each instance of incriminating
circumstance, by way of reliable and clinching
evidence and the circumstances so proved must
form a complete chain of evidence, on the basis of
which, no conclusion other than one of guilt of the
accused can be reached.
In Sathya Narayan Vs. State 2013 (80)
ACC 138 (SC), it has recently been held that even
in absence of eye-witness court can award
conviction if various circumstances relied upon by
the prosecution are fully established beyond doubt.
Chain of events has to be completed on the basis of
proved circumstances.
Page 64
Thus, where a case rests on circumstantial
evidence, five golden principles of standard of proof
required are decocted:-
1) The circumstances from which the conclusion of
guilt is to be drawn should be fully established.
The circumstances must be or should and not
may be established;
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 explained 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 and must show that in all human
probability the act must have been done by the
accused.
These five golden principles constitute the
‘Panch Sheel’ of the proof of a case based on
circumstantial evidence.
Thus, the evidence on record and
circumstances obtaining herein have to be
appreciated and kept in mind in the light of the law
as enunciated in the afore-stated cases. Admittedly,
both the accused persons were seen together with
both the deceased on the intervening night of
15/16.05.2008 at about 9.30 P.M. by Mr. Umesh
Page 65
Sharma, the driver of the accused Dr. Rajesh Talwar,
who has deposed that when on 15.05.2008 at about
9.30 P.M. he had dropped Dr. Rajesh Talwar at L-32,
Jalvayu Vihar, N.O.I.D.A., then at that time he had
given the keys of the car to the servant Hemraj at
the gate of the house and at that time Dr. Rajesh
Talwar, Dr. Nupur Talwar and baby Aarushi were
present in the house. This part of evidence has been
admitted by both the accused persons in their
examinations under section 313 Cr.P.C. In State of
Maharashtra Vs. Sukhdeo Singh AIR 1992 SC
2100, it has been held that in view of section 313
(4) Cr.P.C. there is no impediment in taking the
confessional statement or admission of the accused
into consideration given in his statement under
section 313 Cr.P.C. for recording his conviction and
it can even form the sole basis for conviction. In
Dharni Dhar Vs. State of U.P. (2010) 7 SCC
759, it has been held that admission or the
confession of the accused under section 313 Cr.P.C.
recorded in course of trial can be acted upon and
the court can rely on these confessions to convict. In
Kheruddin Vs. State of West Bengal (2013) 5
SCC 753, it has been held that statement under
section 313 Cr.P.C. can be taken into consideration,
not only because of what section 313 (4) Cr.P.C.
provides but also because of law laid down in
several pronouncements such as in Sanatan
Naskar Vs. State of West Bengal (2010) 8 SCC
249, Ashok Kumar Vs. State of Haryana (2010)
12 SCC 350, Brajendra Singh Vs. State of M.P.
(2012) 4 SCC 289 and Ram Naresh Vs. State of
Chhatisgarh AIR 2012 SC 1357. Thus, this fact
Page 66
stands conclusively proved that both the deceased
were seen alive with the accused persons at about
9.30 P.M. on 15.05.2008 at L-32, Jalvayu Vihar,
N.O.I.D.A. P.W.-5 Dr. Sunil Kumar Dohre has stated
on oath that the death of Ms. Aarushi took place 12
to 18 hours before postmortem examination of her
dead body. P.W.-36 Dr. Naresh Raj has also deposed
that the deceased Hemraj had died before 11/2 to 2
days before postmortem examination of his dead
body and as such this fact also stands proved that
both the deceased were murdered in the midnight of
15/16.05.2008. The accused persons have not taken
plea of alibi. Their presence in the flat cannot be
doubted by any stretch of imagination. Ms. Aarushi
was seen lying dead in her bed on 16.05.2008 at
about 6.00 A.M. by the maid servant Mrs. Bharti
Mandal. The dead body of Hemraj was found on
17.05.2008 in the terrace of flat after breaking open
the lock of door of the terrace. It is to be noted that
both the accused were found present in their flat in
the morning of 16.05.2008 when the maid Mrs.
Bharti Mandal had reached there. The bed-room of
Ms. Aarushi was adjacent to the bed-room of the
accused persons and both the bed-rooms were
divided by wooden partition wall. The servant
Hemraj was also living in a room of this flat. The
accused persons have nowhere taken a plea that
someone had come to meet them or their servant
Hemraj after 9.30 P.M. on 15.05.2008. Even no
suggestion has been thrown before any witness that
some outsider(s) had come to meet any of the
inmates of the flat in that night. P.W.-2 Mr. Rajesh
Kumar, Executive Engineer, Urban Electricity
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Distribution Division-VI, Ghaziabad has deposed that
in flat no. L-32, Sector-25, N.O.I.D.A. the electricity
was supplied from feeder no. 01 and there was no
disruption in the supply of electricity w.e.f. 6.00 P.M.
on 15.05.2008 to 7.00 A.M. on 16.05.2008 and even
no shut-down was taken. He has further stated that
he has written a letter Exhibit-ka-1 to S.P. (C.B.I.) on
the basis of the log-book maintained at Electricity
Sub-Station 33/11 K.V., Sector-21-A, N.O.I.D.A.
informing therein about the status of the supply of
electricity. It has no where been suggested before
this witness that there was disruption of supply of
electricity in that night. P.W.-9 Virendra Singh has
stated before this court that he is employed as
security guard of Jalvayu Vihar, Sector-25,
N.O.I.D.A., which is sentinelled by security personnel
and there are seven gates in Jalvayu Vihar and out
of them two gates remain opened during the day
hours and in the night hours out of these two gates
one gate is closed at 10.30 P.M. but another gate
remains opened but the small gates of all the seven
gates are closed after 10.30 P.M. and in each gate
one guard is deployed in the night but two guards
are deployed in the gate which remains opened in
the night. He has further stated that in the night of
15/16.05.2008 he was deployed at gate no. 1 and in
the said night he had not seen any person loitering
in suspicious circumstances nor any other guard had
told him that any person was seen loitering. The
accused persons have not taken the plea that before
they retired to bed allegedly at about 11.30 P.M. in
the night the main door was not bolted or locked
from inside and it remained opened just to facilitate
Page 68
some intruder(s) to come inside the flat. Both the
accused have admitted that the door of Ms.
Aarushi’s bed-room was having click shut automatic
lock like that of a hotel which if locked from the
outside, could be opened from inside without key
but could not be opened from outside without key. It
is but natural that the door of Ms. Aarushi’s bedroom
must have been locked by the parents and key
remained with them and not with the servant and
therefore, no outsider(s) could have opened the
door from outside without the key of the lock. It is
not possible that the servant Hemraj might be
keeping the key of the door of Ms. Aarushi’s bedroom
as no parents would permit the servant to
keep the key with him particularly in the night hours
when young girl is inside her bed-room. There is no
evidence of egress and ingress; there is no evidence
of any larcenous act; there is no evidence of any
forcible entry inside the flat; there is no evidence at
all to suggest that friends of Hemraj came inside the
flat after 9.30 P.M. and shared drinks of liquor with
Hemraj in the postmortem examination report of
Hemraj no finding has been given that liquor
contents were found in his stomach and no
suggestion has been given before any witness that
Hemraj had taken alcohol with his friends in that
night. It is well-nigh impossible that Hemraj will dare
to booze with his friends in his servant room
particularly when the accused persons were very
much present in the nearby room. It is established
from the evidence of Mrs. Bharti Mandal that mesh
door was latched from inside and she was misled to
go to the ground level and in the meanwhile when
Page 69
she went down the stairs at the ground level the
latch was opened by Dr. Nupur Talwar. It is not
possible that an outsider(s) after committing the
twin murders will clean the private parts of Ms.
Aarushi, dress-up the bed-sheet, cover the dead
body with the flannel blanket, place toys in proper
order, dare to drink scotch and Sula wine, will take
away the body of Hemraj to terrace, place a panel of
cooler over his body, place a bed-sheet over the iron
grill dividing the roofs to save from gaze well
knowing that both the accused are in their bed-room
and they can awake at any time. This is not the case
of defence that their bed-room was bolted from
outside by any person(s) and they were ‘cabined,
cribbed and confined’ in their bed-room. Both the
accused have stated in their statements under
section 313 Cr.P.C. that about 8-10 days prior to the
occurrence painting of cluster had started and the
labourers used to take water from the water tank
placed in their roof and therefore, Hemraj had
locked the door of terrace and the key of the door
remained with him. If it was so, then it was not
possible for an outsider(s) to rummage out the key
and thereafter, lock the door of the terrace from
inside when the dead body of Hemraj was lying in
the terrace. When the investigators asked Dr. Rajesh
Talwar to provide the key of the door of the terrace,
he gave incoherent answers and a device was
resorted to by Dr. Rajesh Talwar to throw enquirers
off the scent. From the evidence it is also
established that both the accused changed their
vestures. It is against the order of human nature
that on seeing their dearest daughter lying in a pool
Page 70
of blood the accused being the natural father and
mother will not hug her. In the process of hugging,
their clothes will be deeply stained with the blood
but not found so. Both the accused have also
admitted in their statements under section 313
Cr.P.C. that the area of the flat is 1300 sq. feet and
it has only one gate. If some outsider(s) might have
committed the offence then after making his exit
from the flat, either he will bolt the outer or middle
mesh door from outside or will keep them open but
this was not done and rather the outer mesh door
was latched from inside by the accused persons and
that’s why when the maid came and placed her
hand on the mesh door, it did not open and she was
purposely told to go to the ground level and
thereafter, latch was opened. In this view of the
matter it can safely be concluded that no outsider
came inside the house in the fateful night and
therefore, when the prosecution has been successful
in proving that both the deceased were last seen
alive in the company of both the accused at flat no.
L-32 at about 9.30 P.M. on 15.05.2008 and both the
deceased were murdered in the intervening night of
15/16.05.2008 then from this fact, as held in
Tukaram Ganpat Pandare Vs. State of
Maharashtra AIR 1974 SC 514 this court may
have regard to the common course of natural
events, human conduct, public or private business,
in their relation to the facts of the particular case as
envisaged in section 114 of Evidence Act and can
reasonably be presumed that it is the accused and
accused only who have murdered the deceased and
none else for want of giving evidence in rebuttal
Page 71
under section 106 of the Evidence Act which
provides that when any fact is especially within the
knowledge of any person, the burden of proving that
fact is upon him. In Crystal Developers Vs. Asha
Lata Ghosh (2005) 5 SCC 375 it has been held
that it is well settled that inferences have to be
drawn from a given set of facts and circumstances
with realistic diversity and not with dead uniformity.
This was the bounden duty of both the accused
personally knowing the whole circumstances of the
case to give evidence on their behalf and to submit
to cross-examination, which they have failed to do
so. In Gurcharan Singh Vs. State of Punjab AIR
1956 SC 460 it has been held that the burden of
proving a plea especially set up by an accused
which may absolve him from criminal liability,
certainly lies upon him. In Razik Ram Vs. J.S.
Chouhan AIR 1975 SC 667 it was observed “the
principle under lying section 106 which is an
exception to the general rule governing burden of
proof applies only to such matters of defence which
were supposed to be specially within the knowledge
of the party concerned. It cannot apply when the
fact is such as to be capable of being known also by
persons other than the party.” The case lawsShambhu
Nath Mehra Vs. State of Ajmer AIR
1956 SC 404, Kali Ram Vs. State of Himachal
Pradesh (1973) 2 SCC 808 (3JJ), Yogendra
Morarji Vs. State of Gujarat (1980) 2 SCC 218
(3JJ), Shankarlal Gyarasilal Vs. State of
Maharashtra (1981) 2 SCC 35 (3JJ), Sharad
Birdhichand Sarda Vs. State of Maharashtra
(1984) 4 SCC 116 (3JJ), Padala Veera Reddy Vs.
Page 72
State of A.P. 1989 Supp (2) SCC 706 (3JJ),
Shamnsaheb M. Multtani Vs. State of
Karnataka (2001) 2 SCC 577 (3JJ), Kajal Sen
Vs. State of Assam (2002) 2 SCC 551, Mousam
Singha Roy Vs. State of WB (2003) 12 SCC 377,
Gaffar Badshaha Pathan Vs. State of
Maharashtra (2004) 10 SCC 589, P.Mani Vs.
State of T.N. (2006) 3 SCC 161, Vikram Jeet
Singh vs. State of Punjab (2006) 12 SCC 306,
Subramaniam Vs. State of T.N. (2009) 14 SCC
415, Kalyan Kumar Gogoi Vs. Ashutosh
Agnihotri (2011) 2 SCC 532, Govind Raju @
Govind Vs. State (2012) 4 SCC 722, Babu Vs.
State of Kerala (2010) 9 SCC 189, Rishipal Vs.
State of Uttarakhand 2013 Cr.L.J. 1534 and
Joydeb Patra Vs. State of West Bengal 2013
Cr.L.J. 2729 as relied upon by the learned counsel
for the accused are of no help to the accused
persons as distinguishable on facts and
circumstances of the instant case. In Shambhu
Nath Mehra Vs. State of Ajmer AIR 1956 SC
404 it has been held that section 106 lays down the
general rule that in a criminal case the burden of
proof is on the prosecution and section 106 is
certainly not intended to relieve it of that duty. On
the contrary, it is designed to meet certain
exceptional cases in which it would be impossible, or
at any rate it is proportionately difficult, for the
prosecution to establish facts which are “especially”
within the knowledge of the accused and which he
could prove without difficulty and inconvenience.
The word “especially” stresses that. It means facts
that are pre-eminently or exceptionally within his
Page 73
knowledge. It was further held that this section
cannot be used to undermine the well-established
rule of law that, save in a very exceptional class of
a case, the burden is on the prosecution and never
shifts. In Kali Ram Vs. State of Himachal
Pradesh (1973) 2 SCC 808 (3JJ) it has also been
held that the burden of proving the guilt of the
accused is upon the prosecution and unless it
relieves itself of that burden, the courts cannot
record a finding of the guilt of the accused. There
are certain cases in which statutory presumption
arises regarding the guilt of the accused, but the
burden even in those cases is upon the prosecution
to prove the existence of facts which have to be
present before the presumption can be drawn. Once
those facts are shown by the prosecution to exist,
the court can raise the statutory presumption and it
would, in such an event, be for the accused to rebut
the presumption. The onus even in such cases upon
the accused is not as heavy as is normally upon the
prosecution to prove the guilt of the accused. In
Yogendra Morarji Vs. State of Gujarat (1980) 2
SCC 218 (3JJ) the Hon’ble Court was dealing with
the right of private defence and the burden of the
accused under section 105 of Evidence Act. In
Shankarlal Gyarasilal Vs. State of Maharashtra
(1981) 2 SCC 35 (3JJ) it was held that falsity of
plea taken by the accused cannot prove his guilt,
though it may be an additional circumstance against
him. In Sharad Birdhichand Sarda Vs. State of
Maharashtra (1984) 4 SCC 116 (3JJ) and Padala
Veera Reddy Vs. State of A.P. 1989 Supp (2)
SCC 706 (3JJ) the circumstantial evidence was
Page 74
found not sufficient conclusively to establish the
guilt of the accused and therefore, the accused were
acquitted on the ground that suspicion cannot take
the place of legal proof. In Shamnsaheb M.
Multtani Vs. State of Karnataka (2001) 2 SCC
577 (3JJ) the prosecution failed to prove the charge
under section 302 I.P.C. and no charge under section
304-B I.P.C. was framed and hence it was held that
conviction under section 304-B without affording
opportunity to the accused to enter on his defence
and disprove the presumption under section 113-B
Evidence Act would result in failure of justice. In
Kajal Sen Vs. State of Assam (2002) 2 SCC 551
the prosecution story with regard to the involvement
of the accused was found doubtful and hence appeal
was allowed. In Mousam Singha Roy Vs. State of
WB (2003) 12 SCC 377 the appeal was allowed
inter alia on the ground that P.W.-2 & 3 were chance
witnesses and their presence at sweetmeat stall
could not be proved. In Gaffar Badshaha Pathan
Vs. State of Maharashtra (2004) 10 SCC 589 it
was held that the burden on accused is much lighter
and he has only to prove reasonable probability. In
P.Mani Vs. State of T.N. (2006) 3 SCC 161 the
facts of the case were different. It was not a case
where both husband and wife were last seen
together inside a room and as per prosecution case
the children who have been watching T.V. were
asked to go out by the deceased and then she
bolted the room from inside and then on seeing
smoke coming from the room they rushed towards
the same and broke open the door. In that context it
was held that section 106 of Evidence Act cannot be
Page 75
said to have any application. In Vikram Jeet Singh
vs. State of Punjab (2006) 12 SCC 306 it has
been held that when the prosecution case has been
proved the burden in regard to such facts which was
within the special knowledge of the accused may be
shifted to the accused for explaining the same. It
was further held that suspicion, however, grave may
be, cannot be a substitute for proof. In
Subramaniam Vs. State of T.N. (2009) 14 SCC
415 the accused was acquitted because the
prosecution had suppressed certain facts and the
accused was acquitted by the trial court against
which appeal was filed and then he was convicted
under section 302 I.P.C. but acquittal under section
498A I.P.C. and section 4 Dowry Prohibition Act was
affirmed by the Hon’ble High Court and in that
context the Hon’ble Supreme Court allowed the
appeal and accused was acquitted. In Babu Vs.
State of Kerala (2010) 9 SCC 189 the accused
was acquitted by the trial court but convicted by the
Hon’ble High Court and then the Hon’ble Supreme
Court held that the trial court’s judgment was well
reasoned as the chain of circumstances were found
not complete. In Kalyan Kumar Gogoi Vs.
Ashutosh Agnihotri (2011) 2 SCC 532 the facts
were entirely different. That was the case under
Representation of People Act and hence law laid
down in different branch of law is not applicable. The
facts of Govind Raju @ Govind Vs. State (2012)
4 SCC 722 are also entirely different. In that case,
the appellant had approached the police and then it
was held that it is quite unbelievable that he would
indulge in committing such a heinous crime and the
Page 76
statement of P.W.-1 implicating the accused did not
inspire confidence and suffered from improbabilities
and was not found free from suspicion and his
statement was also not corroborative by other
witnesses. In Rishipal Vs. State of Uttarakhand
2013 Cr.L.J. 1534 it was found that the prosecution
could not prove beyond reasonable doubt that the
deceased died due to poisoning although it was also
laid down that burden to prove the guilt of the
accused beyond reasonable doubt is on the
prosecution and it is only when this burden is
discharged then the accused could prove any fact
within his special knowledge under section 106 of
Evidence Act. In Joydeb Patra Vs. State of West
Bengal 2013 Cr.L.J. 2729 it was held that when
the prosecution has not been able to prove its case
beyond reasonable doubt that the deceased died
due to poisoning, the courts below could not have
held the appellant guilty only because they have not
been able to explain under what circumstances the
deceased died. In Mani Subrat Jain Vs. Raja Ram
Vohra (1980) 1 SCC 1 it was held that precedents
are law’s device to hold the present prisoner of the
past and must bind only if squarely covered. In
Abhay Singh Chautala Vs. CBI (2011) 7 SCC
141, it has been held that long standing precedent
should not be disturbed. ‘Stare decisis et non
quieta movere’ – it would be better to stand by
that decision and not to disturb it.
It will be seemly to refer to some important
decisions in respect of the law relating to evidence
to be adduced under section 106 of the Evidence
Act. In Radhey Lal and others Vs. Emperor AIR
Page 77
1938 All. 252, it was held by the Hon’ble Justice
Allsop that an accused person is required to explain
the circumstances which appear against him in the
evidence and if he cannot or will not do so, he must
take the consequences. If he chooses to take up the
position that he relies upon the technicality that the
whole burden of proof was upon the prosecution and
refuses to say anything about the matter, he can
hardly be surprised if he is convicted upon the
evidence produced by the prosecution, if that proves
circumstances from which his guilt can be inferred.
In Krishan Kumar Vs. Union of India
(1960) 1 SCR 452, it was held that it is not the law
of this country that the prosecution has to eliminate
all possible defences or circumstances which may
exonerate him. If these facts are within the
knowledge of accused then he has to prove them. Of
course, the prosecution has to establish a prima
facie case in the first instance. It is not enough to
establish facts which give rise to a suspicion and
then by reason of section 106 of the Evidence Act to
throw the onus on him to prove his innocence. In
Collector of Customs v D. Bhoormall (1972)2
SCC 544 it was held “Prosecution/or the
Department is not required to prove its case with
mathematical precision to a demonstrable degree;
for, in all human affairs absolute certainty is a myth
and as Professor Brett felicitously puts it- “all
exactness is a fake”. El Dorado of absolute proof
being unattainable the law accepts for it, probability
as a working substitute in this work-a-day world. The
law does not require the prosecution to prove the
impossible. All that it requires is the establishment
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of such a degree of probability that a prudent man
may, on its basis, believe in the existence of a fact
in issue. Thus, legal proof is not necessarily perfect
proof; often it is nothing more than a prudent man’s
estimate as to the probabilities of the case. The
other, cardinal principle having an important bearing
on the incidence of burden of proof is that
sufficiency and the weight of the evidence is to be
considered- to use the words of Lord Mansfield- in
Batch Vs. Archer (1774) 1, cowp-63 at page 65
“according to the proof which it was in the
power of one side to prove, and in the power
of the other to have contradicted.” Since it is
exceedingly difficult, if not absolutely impossible, for
the prosecution to prove facts which are especially
within the knowledge of the opponent or the
accused, it is not obliged to prove them as part of
his primary burden……”. The same view has been
reiterated in Mohmmad Amir Kasab @ Abu
Mujahid Vs. State of Maharashtra (2012) 9
SCC-1.
Holmes J. in Greer Vs. U.S. 245 USR 559
remarked “a presumption upon a matter of fact,
when it is not merely a disguise for some other
principle, means that common experience shows the
fact to be so generally true that courts may notice
the truth.”
In State of West Bengal Vs. Mir
Mohammad Umar (2000) 8 SCC 382, it was
observed- “The pristine rule that the burden of proof
is on the prosecution to prove the guilt of the
accused should not be taken as a fossilized doctrine
although it admits no process of intelligent
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reasoning. The doctrine of presumption is not alien
to the above rule, nor would it impair the temper of
the rule. On the other hand, if the traditional rule
relating to burden of proof of the prosecution is
allowed to be wrapped in pedantic coverage, the
offenders in serious offences would be the major
beneficiaries and society would be casualty.”
The observations made in T. Shankar Prasad
Vs. State of A.P. 2004 Cr.L.J. 884 are very
relevant, which are excerpted herein below-
“Proof of fact depends upon the degree of
probability of its having existed. The standard
required for searching the supposition is that if a
prudent man acting in any important matter
concerning him. Fletcher Moulton L.J. in Hawkins
Vs. Powells Tillery Steel Coal Co. Ltd. 1911(1)
KB 988 observed as follows-
“Proof does not mean proof to rigid
mathematical demonstration, because that is
impossible; it must mean such evidence as would
induce a reasonable man to come to a particular
conclusion.”
The said observation has stood the test of time
and can now be followed as the standard of proof. In
reaching the conclusion the court can use the
process of inferences to be drawn from facts
produced or proved. Such inferences are akin to
presumption in law. Law gives absolute discretion to
the court to presume the existence of any fact which
it thinks likely to have happened. In that process the
court may have regard to the common course of
natural events, human conduct, public or private
Page 80
business vis-a-vis the facts of the particular case.
The discretion is clearly envisaged in section 114 of
the Evidence Act.
Presumption is an inference of a certain fact
drawn from other proved facts. While inferring the
existence of a fact from another, the court is only
applying a process of intelligent reasoning which the
mind of a prudent mind would do under similar
circumstances. Presumption is not the final
conclusion to be drawn from other facts. But it could
as well be final if it remains undisturbed later.
Presumption in law of evidence is a rule indicating
the stage of shifting the burden of proof. From a
certain fact or facts the court can draw an inference
and that would remain until such inference is either
disproved or dispelled.
For the purpose of reaching one conclusion the
court can rely on a factual presumption. Unless the
presumption is disproved or dispelled or rebutted
the court can treat the presumption as
tantamounting to proof. However, as a caution of
prudence we have to observe that it may be unsafe
to use that presumption to draw yet another
discretionary presumption unless there is a statutory
compulsion. This Court has indicated so in Suresh
Budharmal Kalani v State of Maharashtra
(1998(7) SCC 337) “A presumption can be drawn
only from facts and not from other presumptions by
a process of probable and logical reasoning”. In
Achara Parambath Pradeepan and others Vs.
State of Kerala 2007 (1) Crimes 54 (SC), it was
held that if a person is last seen with the deceased,
he must offer an explanation as to how and when he
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parted company. Section 106 lays down the rule
that when the accused does not throw any light
upon facts which are specially within his knowledge
and which could not support any theory or
hypothesis compatible with his innocence the court
can consider his failure to adduce any explanation
as an additional link which completes the chain. The
principle has been succinctly stated in Re Naina
Mohammad AIR 1960 Madras 218.
In Murli Dhar Vs. State of Rajasthan AIR
2005 SC 2345, Prithi Pal Singh and others Vs.
State of Punjab (2012) 1 SCC 10, after relying on
the law as propounded in State of West Bengal
Vs. Mir Mohammad Umar (2000) 8 SCC 382,
Shambhu Nath Mehra Vs. State of Ajmer AIR
1956 SC 404, Sucha Singh Vs. State of Punjab
(2001) 4 SCC 375 and Sahadevan Vs. State
(2003) 1 SCC 534, it has been held that section
106 Evidence Act does not relieve the prosecution of
its burden to prove the guilt of the accused beyond
reasonable doubt. Section 106 applies to cases
where prosecution has succeeded in proving facts
from which a reasonable inference can be drawn
regarding the existence of certain other facts, unless
the accused by virtue of special knowledge
regarding such facts, failed to offer any explanation
which might drive the court to draw a different
inference. Section 106 of the Evidence Act is
designed to meet certain exceptional cases in which
it would be impossible for the prosecution to
establish certain facts which are particularly within
