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TMI Blog2018 (10) TMI 2015X X X X Extracts X X X X X X X X Extracts X X X X ..... case of circumstantial evidence the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the Accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the Accused. Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the Accused Under Section 106 of the Evidence Act, 1872 unless the prosecution first establishes a prima facie case. If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift to the Accused, and the benefit of doubt will have to be given. Unfortunately neither Trial Court nor the High Court considered it necessary to take notice of, much less discuss or observe with regard to the aforesaid defence by the Appellant Under Section 313 Code of Criminal Procedure to either accept or reject it. The defence taken cannot be said to be irrelevant, il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal region. (iii) Chop wound of size 4 cm x 2 cm x muscle deep present on left side of forearm. (iv) Laceration of size (5 x 4) cm present over left wrist joint on posterior aspect. (v) Chop wound of size (4 x 1) cm x muscle deep, present over temporal region on right side. (vi) Chop wound of size (6 x 2) cm of muscle deep present over back of scapula. (vii) Fracture of temporal bone on both sides. All injuries were ante mortem and caused by moderately heavy sharp cutting weapon and homicidal in nature. 4. The Trial Court and the High Court held that the present was a case of circumstantial evidence. The last seen theory establishes the presence of the Appellant with the deceased at night. Her unnatural conduct because she was not crying, she was the assailant of the deceased. 5. Mr. Singh, learned Counsel for the Appellant submitted that the courts below have erred in holding that the links in the chain of circumstances stood established leading to the only inescapable conclusion of the Appellant being the assailant and no other hypothesis of innocence being possible. PW-6 has deposed that the injuries were caused by a moderately heavy sharp cutting weapon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on the separate aspects of the case, is supported by evidence and is just and proper. Ordinarily, this Court is not required to enter into an elaborate examination of the evidence, but we have departed from this Rule in this particular case, in view of the variety of arguments that were addressed to us and the evidence of conduct which the Appellant has sought to explain away on hypotheses suggesting innocence. These arguments, as we have stated in brief, covered both the factual as well as the medical aspects of the case, and have necessitated a close examination of the evidence once again, so that we may be in a position to say what are the facts found, on which our decision is rested. 8. The essentials of circumstantial evidence stand well established by precedents and we do not consider it necessary to reiterate the same and burden the order unnecessarily. Suffice it to observe that in a case of circumstantial evidence the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the Accused being the assailant, inconsistent or incompatible with the possibility of any other hypot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the hospital on a motorcycle. While PW-3 states that the deceased was wearing clothes, the post-mortem report shows that the deceased was brought in an underwear only. The clothes of the deceased were found near the well in a gunny bag. But PW-7 did not consider it necessary to have the blood group examined by the FSL, which in our opinion in the facts of the case is a major lapse. 12. The post-mortem report makes it evident that the chop wounds could not have been caused by the small knife alleged to have been recovered. Fracture of the temporal bone with the knife was an impossibility. PW-6 in the deposition ruled out that the injury could be caused by a fall. The post mortem did not find any alcohol in the body of the deceased. The witness also opined that injury No. 4 could have been caused while the deceased may have attempted to save himself from assault. The multiple injuries could certainly not have been caused by one person and tells an entirely different story by itself that the assailants may have been more than one. The chop injuries were possible by a moderate and heavy weapon like a dao. In our opinion also, if the deceased was of average built, it is difficult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about 8-8:30 while I have returned from my work at Satgaon, I saw that my husband was lying in the room with bleeding injury. On my cry, Manoj Deka and his brothers come there with drink in the hand of one brother. Thereafter I saw Manoj Deka was putting Dettol on the wound of my husband. I also rang to 108 ambulance. When, I wanted to call police Manoj Deka, snatched the phone from me. On my crying neighbouring peoples arrived there. I tried to take my husband to medical but due to non-co-operation my Manoj Deka and Ors. I failed to take him to Medical. On that night at about 9.30 expired and Manoj Deka and other neighbours were sitting. Subsequently Manoj Deka has falsely implicated me. I have the suspicion that my husband was physically assaulted earlier at some place by Mintu Nath, Dipak Das and Jeetu Deka while taking liquor and brought by husband on injured condition and laid in the room. I also saw the lock of my room in broken condition, when I arrived here. I have not killed my husband. I am innocent. PW-2 has acknowledged in his evidence that he would have drinks with the deceased. According to the post-mortem report, the stomach of the deceased was found empty, sugges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s clearly caused prejudice to the Appellant. Unlike the prosecution, the Accused is not required to establish the defence beyond all reasonable doubt. The Accused has only to raise doubts on a preponderance of probability as observed in Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468 observing as follows: 26. We have examined the evidence at length in this case, not because it is our desire to depart from our usual practice of declining to the assess, the evidence in an appeal here, but because there has been in this case a departure from the Rule that when an Accused person but for the word a reasonable defence which is likely to be true,...... then the burden on the other side becomes all the heavier because a reasonable and probable story likely to be true friend pitted against AV and vacillating case is bound to raise a reasonable doubts of which the Accused must get the benefit.... A similar view is expressed in M. Abbas v. State of Kerala, (2001) 10 SCC 103 as follows: 10. ...On the other hand, the explanation given by the Appellant both during the cross-examination of prosecution witnesses and in his own statement recorded Under Section 313 Code ..... X X X X Extracts X X X X X X X X Extracts X X X X
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