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TMI Blog2005 (2) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... and did not return at the usual time. On the next day morning her dead body was found in the Sugarcane field of one Moolchand around 6.00 a.m. She was lying in a dead condition and blood was oozing from her private parts and there were marks of pressing on her neck. Report was lodged at the nearly Police Station and the dead body was sent for post mortem examination Dr. R.K. Gupta (PW-7) conducted the post mortem around 2.00 p.m. on 17.8.2001 and opined that death was within the preceding 24 hours. Three persons claimed to have seen the accused nearby the place of occurrence between 1.00 p.m. to 2.00 p.m. on the date of occurrence. Two of them, namely, Sanjeev Kumar Tyagi (PW-3) and Kulbhushan (PW-5) claimed to have seen the deceased being carried on a bicycle by the accused who was taking the bicycle with the deceased sitting on the handle thereof. Anil (PW-2) stated that he had seen the accused in perplexed state around 2.00 p.m. near the place from where the dead body of deceased was found. Investigation was undertaken. During such investigation, there was recovery of accused's underwear as also the undergarment the deceased was wearing. This recovery was treated to be un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s raised before the trial Court that the delayed examination of PWs 3 and 5 affected credibility of the prosecution version. In response, learned counsel for the accused-respondent submitted that the High Court by a well reasoned judgment has found the prosecution version to be unreliable. That being so, this Court should not interfere with the order of acquittal. Further, the evidence tendered by the prosecution is not sufficient to prove unerringly that the accused was responsible for the crime. The case being one which rests on circumstantial evidence, the view taken by the High Court is a possible view and, therefore, this Court should not interfere. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, AIR (1977) SC 1063, Eradu v. State of Hyderabad, AIR (1956) SC 316, Earabhadrappa v. State of Karnataka, AIR (1983) SC 446, State of U.P. v. Sukhbasi, AIR (1985) SC 1224, Balwinder Singh v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. Sir Alfred Wills in his admirable book `Wills' Circumstantial Evidence' (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct of circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e background of principles highlighted above, the inevitable conclusion is that the prosecution has established its accusations. As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the Investigating officer is categorcially asked as to why there was delay in examination for the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that it there is any delay in examination of a particular witness the prosecution version become suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion [See Ranbir and Ors. v. State of Punjab, AIR (1973) SC 1409, Bodhraj @ Rodha and Ors. v. State of Jammu and Kashmir, [2002] 8 SCC 45 and Banti @ Guddu v. State of M.P., [2004] 1 SCC 414.] The High Court has placed reliance on a decision of this Court in Ganesh Bhayan Patel and Anr. v. State of Maharashtra, [1978] 4 SCC 371. A bare reading of the fact situation of that case shows that the delayed examination by I.O. was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2. The reason as to why accused's name did not find place in the FIR was explained by the informant when he was recalled. The High Court drew an adverse inference without indicating any reason therefore. Looked at from above angle, the High Court's order is clearly untenable and unsustainable and deserves to be set aside, which we direct. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of 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. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances of the `offender' also require to be taken into consideration along with the circumstances of the `crime'. (iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstance of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. In rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed man i.e. the judge that leads to determination of the lis. The principle of proportion between crime and punishment is a principle of just desert that servers as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. Indeed, the requirement that punishment not be disproportionately great, which is a corollary of just desert, is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the judge in arriving at a sentence in each cases, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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