Kalinga @ Kushal vs State Of Karnataka By Police Insp.Hubli on 20 February, 2024

Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services — Free for one month.

Supreme Court of India

Kalinga @ Kushal vs State Of Karnataka By Police Insp.Hubli on 20 February, 2024

Author: Bela M. Trivedi

Bench: Bela M. Trivedi

2024 INSC 124




                                                                              REPORTABLE


                                         IN THE SUPREME COURT OF INDIA

                                       CRIMINAL APPELLATE JURISDICTION

                                          CRIMINAL APPEAL NO. 622 OF 2013



                            Kalinga @ Kushal                                     ….Appellant

                                                          Versus

                            State of Karnataka By Police Inspector Hubli
                                                                               ….Respondent


                                                       JUDGMENT

SATISH CHANDRA SHARMA, J.

1. Master Hrithik, aged 2.5 years, lost his life on the fateful
day of 03.11.2002 in Hubli, Karnataka. PW-1, his father and
complainant in this case, filed a complaint and the allegation was
levelled against the appellant/accused, who is the younger
brother of PW-1. After a full-fledged trial, Trial Court acquitted
the appellant from the charges levelled upon him. The High Court
reversed the order of acquittal and convicted the appellant. The
mystery of Hrithik’s death continues as the matter has landed
Signature Not Verified

Digitally signed by
Neetu Khajuria
Date: 2024.02.20
17:25:12 IST
Reason: before this Court in the form of the present appeal, which assails

Crl. Appeal No. 622/2013 Page 1 of 22
the order dated 28.03.2011 passed by the High Court of
Karnataka (Circuit Bench at Dharwad) in Criminal Appeal No.
130/2005.

FACTUAL MATRIX

2. At the outset, we consider it apposite to note that there is
considerable divergence between the parties (as well as between
the decisions rendered by the Trial Court and the High Court) as
regards the sequence of events and timelines involved in this
case. To avoid any confusion or presumption, the facts delineated
herein represent the version of the prosecution for the purpose of
understanding the story. On 03.11.2002, at around 11 A.M., the
son of PW-1 had gone out for playing and went missing. PW-1
and other family members of the child searched for him in and
around the locality. Upon finding no trace of the child till
evening, a missing complaint was lodged at around 10 P.M. by
PW-1 at PS Vidyanagar, Hubli, Karnataka. The complaint came
to be registered as Crime No. 215/2002.

3. Fast forward to 14.11.2002, the appellant (also the brother
of PW-1) appeared at the house of PW-1 in a drunken state and
started blabbering about the missing incident of Hrithik and about
mishappening with the child. The encounter on 14.11.2002
happened late at night and PW-1 did not pursue the same at that
point of time. On the morning of 15.11.2002, PW-1 went to his

Crl. Appeal No. 622/2013 Page 2 of 22
shop and returned around 12:30 P.M. At this point, PW-1, his
mother and wife enquired about the child from the appellant and
the appellant stated that he had murdered Hrithik and thrown his
body in the well. Thereafter, PW-1 took the appellant to PS
Vidyanagar for filing the complaint which led to the registration
of the First Information Report (FIR) in this case.

4. It is the case of the prosecution that on reaching the police
station, the appellant confessed to the commission of crime as
well as the act of throwing the child in the well. The voluntary
statement of the accused, in the nature of extra judicial
confession, was recorded by PW-16 (Investigating Officer/IO of
the case) as Ex.P.21. At the instance of the appellant, PW-16 took
PW-1, mother and wife of PW-1 and panchas in a police jeep to
a place near the back side of Kamat Café. On reaching there, the
appellant took PW-16, PW-1 and panchas near the well and told
them that the dead body of the deceased was thrown in the said
well. When they looked into the well, a dead body of a child was
found floating there. The dead body was taken out and inquest
panchnama was conducted. Thereafter, spot panchnama was
prepared and the body was sent for post mortem. Thereafter,
accused no. 2 and 3 were arrested and upon their disclosure and
at their instance, jewelry articles exhibited as M.O.s 5 and 6 were
recovered from PW-17, which were allegedly taken off from the
body of the deceased child and were sold off to PW-17.

Crl. Appeal No. 622/2013 Page 3 of 22

5. In this factual backdrop, PW-16 investigated the case and
filed the chargesheet. Upon committal of the case to the Court of
Sessions, charges were framed upon the three accused persons
under Sections 201, 302, 363, 364 read with 34 of Indian Penal
Code, 18601. Upon the culmination of trial, the Trial Court
acquitted all the accused persons vide order dated 30.04.2004
passed by Ld. ASJ-01, Dharwad (Hubli).

6. While ordering acquittal of the accused persons, the Trial
Court gave the following reasons:

i. There is no eye witness to support the case of
the prosecution and the case is entirely based on
circumstantial evidence.

ii. The prosecution case is built upon the extra-
judicial confession of the appellant and factum of
recovery of the dead body from the well in
consequence of the information disclosed by the
appellant.

iii. The credibility of an extra judicial confession
depends upon the veracity of the witnesses before
whom it is given and the circumstances in which it
was given. The statements of PW-1 in the Court and
in the complaint Ex.P1 are different. In the
complaint, PW-1 had mentioned about the involved
of co-accused persons, whereas his testimony in the
Court was completely silent regarding the involved
of other accused persons.

iv. PW-1 stated that his wife and mother were
also present when the confession was made by the

1 Hereinafter referred as “IPC”

Crl. Appeal No. 622/2013 Page 4 of 22
appellant. However, neither wife nor mother of PW-

1 was examined by the prosecution as a witness.

v. PW-1 deposed that after the confession was
made by the appellant, he took the appellant to the
police station where he disclosed the involvement
of accused no. 2 and 3. However, in the complaint
Ex.P1 which was given by him at the police station,
there is no mention of accused no. 3. The
contradiction in this regard is material as, if the
appellant had disclosed the involvement of accused
no. 2 and 3 before going to the police station, there
was no reason for PW-1 to skip the name of accused
no. 3 from Ex.P1.

vi. The Trial Court noted the multiplicity of
versions by PW-1 and held that an extra judicial
confession must be free from suspicion, which is
not the case in the testimony of PW-1.

vii. The Trial Court also noted the discrepancy
regarding the arrest of the accused. PW-1 deposed
that he took the appellant to the police station after
his disclosure, whereas PW-16 deposed that after
registering the complaint, he had arrested the
appellant from his house.

viii. No mention of the incident of utterance of
certain words by the appellant on 14.11.2002 in the
complaint given by PW-1 on the following day.

ix. PW-1 took no steps in furtherance of the
information supplied by PW-5 that he had seen the
appellant taking away the child on 03.11.2002 or in
furtherance of the information supplied by PW-7,
who had informed PW-1 on 10.11.2002 that he had
seen three people throwing something into the well.
The conduct of PW-1 was not found to be natural.

Crl. Appeal No. 622/2013 Page 5 of 22

x. PW-1 failed to explain the discrepancy in the
clothes allegedly worn by the deceased and the
clothes found on the body of the deceased.

Moreover, PW-12 deposed that at the time of filing
the complaint, he had enquired from PW-1
regarding any ornaments on the child. PW-1 had
replied in negative.

xi. The theory of last seen was also rejected by
the Trial Court and PWs in that regard – PW-5, PW-
6, PW-7 and PW-18 – were disbelieved.

7. The decision of the Trial Court was assailed before the
High Court by the State in appeal. The High Court analyzed the
evidence on record and partially allowed the appeal by holding
the appellant guilty for the commission of offences punishable
under Sections 201, 302, 363, 364 of IPC. Notably, the High
Court was in agreement with the conclusion of acquittal
regarding accused no. 2 and 3.

8. On a re-appreciation of evidence pitched against accused
no. 2 and 3, the High Court agreed with the view of the Trial
Court that the evidence was not trustworthy. The theory of last
seen, as propounded to bring accused no. 2 and 3 within the ambit
of criminality, was rejected. Similarly, the allegation of recovery
of ornaments from PW-17 at the instance of the accused was also
rejected. Since, there is no divergence of opinion with respect to
accused no. 2 and 3, this Court is not required to delve further
into the same. The High Court set aside the view of the Trial

Crl. Appeal No. 622/2013 Page 6 of 22
Court regarding the rejection of the voluntary extra judicial
confession of PW-1 and recovery of dead body of the deceased
at his instance. The High Court went on to convict the appellant
on the strength of the following reasons:

i. The extra judicial confession of the appellant
was a voluntary confession and there is no reason to
doubt the same.

ii. Information disclosed by the appellant led to
the discovery of dead body of the deceased and
minor discrepancies in the version of PW-1 are not
material.

iii. The Trial Court committed an error by not
properly appreciating the evidence of PW-1,
especially the voluntary statement and recovery of
dead body.

SUBMISSIONS OF APPELLANT

9. Assailing the order of the High Court, the appellant
submits that the High Court did not appreciate the discrepancies
in the evidence of PW-1 and went on to accept the same. He
further submits that the High Court failed to take note of the
improvements made by PW-1 at every stage. He further submits
that the Trial Court had elaborately appreciated the entire
evidence on record and it was not open for the High Court to
reappreciate the entire evidence and arrive at a different
conclusion of its own. Further, it is submitted that the High Court

Crl. Appeal No. 622/2013 Page 7 of 22
did not notice the absence of mother and wife of PW-1 from the
list of witnesses of the prosecution.

10. The appellant further submits that the finding of the Trial
Court regarding the sequence of arrest of the appellant has not
been discussed at all in the impugned order. It is further submitted
that the High Court did not examine the extra judicial confession
of the appellant in its correct perspective, especially in light of
the suspicion raised by the Trial Court. It is urged that the High
Court did not subject the extra judicial confession to a stern test
and went on to place undue reliance on the same. It is further
contended that the High Court overlooked the discrepancy
between the description of clothes found on the dead body and
that indicated by PW-1 in his complaint. Lastly, it is submitted
that if two views were possible on a reappreciation of evidence,
the High Court must have adopted the view in favour of the
accused, thereby providing benefit of doubt to the appellant.

11. Per contra, it is submitted on behalf of the State that there
is no infirmity in the impugned order as it is based on a correct
appreciation of evidence. It is further submitted that the voluntary
extra judicial confession of PW-1 constituted crucial evidence
and the fact that it led to the discovery of the dead body of the
deceased, added credibility to the same. Reliance has been placed
upon the decisions of this Court in Sansar Chand v. State of

Crl. Appeal No. 622/2013 Page 8 of 22
Rajasthan2 and Piara Singh v. State of Punjab3. It is further
submitted that the Court must not consider every doubt as a
reasonable doubt and minor discrepancies must not be allowed to
demolish the entire testimony of a witness. In this regard, reliance
has been placed upon the decisions of this Court in Mallikarjun
v. State of Karnataka4 and Hari Singh & Anr. v. State of Uttar
Pradesh5.

12. We have heard Sh. Sharan Thakur, Advocate for the
appellant and Mr. Muhammed Ali Khan, AAG, for the
respondent State.

DISCUSSION

13. We may now proceed to delineate the issues that arise for
the consideration of this Court, as follows:

i. Whether the extra judicial confession of the
appellant/accused was admissible, credible and
sufficient for conviction of the accused thereon?
ii. Whether the testimony of PW-1 could be
termed as reliable and trustworthy?
iii. Whether the chain of circumstantial
evidence is complete and consistent for arriving at
the conclusion of guilt?

2 (2010) 10 SCC 604
3 (1977) 4 SCC 452
4 (2019) 8 SCC 359
5 Criminal Appeal No. 186 of 2018 (SC)

Crl. Appeal No. 622/2013 Page 9 of 22

14. The conviction of the appellant is largely based on the
extra judicial confession allegedly made by him before PW-1. So
far as an extra judicial confession is concerned, it is considered
as a weak type of evidence and is generally used as a
corroborative link to lend credibility to the other evidence on
record. In Chandrapal v. State of Chattisgarh6, this Court
reiterated the evidentiary value of an extra judicial confession in
the following words:

“11. At this juncture, it may be noted that as per Section 30
of the Evidence Act, when more persons than one are being
tried jointly for the same offence, and a confession made by
one of such persons affecting himself and some other of such
persons is proved, the court may take into consideration such
confession as against such other person as well as against the
person who makes such confession. However, this court has
consistently held that an extra judicial confession is a weak
kind of evidence and unless it inspires confidence or is fully
corroborated by some other evidence of clinching nature,
ordinarily conviction for the offence of murder should not be
made only on the evidence of extra judicial confession. As
held in case of State of M.P. Through CBI v. Paltan Mallah,
the extra judicial confession made by the co-accused could
be admitted in evidence only as a corroborative piece of
evidence. In absence of any substantive evidence against the
accused, the extra judicial confession allegedly made by the
co-accused loses its significance and there cannot be any
conviction based on such extra judicial confession of the co-
accused.”

15. It is no more res integra that an extra judicial confession
must be accepted with great care and caution. If it is not

6 (2022) SCC On Line SC 705

Crl. Appeal No. 622/2013 Page 10 of 22
supported by other evidence on record, it fails to inspire
confidence and in such a case, it shall not be treated as a strong
piece of evidence for the purpose of arriving at the conclusion of
guilt. Furthermore, the extent of acceptability of an extra judicial
confession depends on the trustworthiness of the witness before
whom it is given and the circumstances in which it was given.
The prosecution must establish that a confession was indeed
made by the accused, that it was voluntary in nature and that the
contents of the confession were true. The standard required for
proving an extra judicial confession to the satisfaction of the
Court is on the higher side and these essential ingredients must
be established beyond any reasonable doubt. The standard
becomes even higher when the entire case of the prosecution
necessarily rests on the extra judicial confession.

16. In the present case, the extra judicial confession is
essentially based on the deposition of PW-1, the father of the
deceased. Without going into the aspect of PW-1 being an
interested witness at the threshold, his testimony is fatal to the
prosecution case on multiple parameters. PW-1 deposed that the
appellant had arrived at his residence on 14.11.2002 and
mentioned about the deceased. Despite so, the appellant was
allowed to leave the residence and no action whatsoever was
taken by PW-1. The incident took place on 03.11.2002 and
despite lapse of 11 days, PW-1 had no clue about his deceased

Crl. Appeal No. 622/2013 Page 11 of 22
son. On the eleventh day, when the appellant arrives at his
residence and mentions adversely about his deceased son, PW-1
does nothing about it. In fact, on the next day as well, PW-1
started off normally and went to his shop in a routine manner.
Thereafter, he came back home in the afternoon of 15.11.2002
and confronted the appellant about the incident. There is no
explanation as to how the appellant arrived at his residence again
on 15.11.2002. Nevertheless, PW-1 deposed that when he, his
mother and wife confronted the appellant, he confessed to the
murder of the deceased. Thereafter, they took him to the police
station.

17. Before we refer to the proceedings which took place at the
police station, it is of utmost relevance to note that the confession
was made before PW-1, his mother and wife. However, the
mother and wife of PW-1 were never examined as witnesses by
the prosecution. This glaring mistake raises a serious doubt on
the very existence of a confession, or even a statement, of this
nature by the appellant.

18. Once the appellant was taken to the police station, as the
examination in chief of PW-1, the appellant confessed to the act
of throwing the deceased in the well along with accused no. 2 and

3. Notably, there was no mention of the co-accused persons in the
original statement of the appellant, as per the examination in

Crl. Appeal No. 622/2013 Page 12 of 22
chief of PW-1. One finds a third version of the same fact when
the complaint Ex.P1 is perused. The said complaint was given by
PW-1 at the police station of 15.11.2002. As per this complaint,
the appellant was queried by PW-1 and his mother (presence of
wife not mentioned). Furthermore, as per the complaint, the
appellant confessed to the commission of offence along with one
other accused (accused no.2) only. The complaint Ex.P1 is also
silent on the episode that took place at the residence of PW-1 on
14.11.2002, a day prior to the filing of complaint. There is no
explanation as to how and in what circumstances the incident of
14.11.2002 was omitted from Ex.P1. The omission assumes great
importance in light of the fact that the incident of 14.11.2002 was
the precursor of the confrontation that followed the next day,
which culminated into the act of filing the complaint. The
complaint Ex.P1 is also silent on the information received by
PW-1 from PW-5 and PW-6 that they had seen his child going
with the appellant on the date of incident. The introduction of
these witnesses was an exercise of improvement, as we shall see
in the following discussion.

19. The confession was followed by two things – arrest of the
appellant and recovery of dead body of the deceased. The
evidentiary aspects concerning these facts are equally doubtful.
As per the testimony of PW-1, he had taken the appellant to the
police station and he was arrested there. Contrarily, PW-16/I.O.

Crl. Appeal No. 622/2013 Page 13 of 22

deposed that after recording the complaint, he had arrested the
appellant from his house. The mode and manner of arrest,
especially the place of arrest, is doubtful. It also raises a question
on the aspect of confession – whether the confession was
recorded when the appellant himself visited the police station
with PW-1 or when he was arrested from his house and was taken
to the police station by PW-16. The confessions, one made after
a voluntary visit to the police station and the other made after
arrest from the house, stand on materially different footings from
the point of view of voluntariness. The likelihood of the latter
being voluntary is fairly lesser in comparison to the former.

20. The next element which weighed upon the High Court in
reversing acquittal is the recovery of dead body of the deceased
at the instance of the appellant. Notably, the element of recovery
is based on the same statement/confession of the appellant which,
as observed above, fails to inspire the confidence of the Court.
The Trial Court has rightly analyzed the evidence regarding the
recovery of dead body and the High Court fell in an error in
accepting the evidence on its face value, without addressing the
reasonable doubts raised by the Trial Court.

21. The recovery of dead body from the well is not in question.
However, the proof of such recovery to be at the instance of the
appellant is essentially based on the disclosure statement made

Crl. Appeal No. 622/2013 Page 14 of 22
by the appellant. Again, the prime witness for proving the
disclosure statement is PW-1, whose testimony has failed to
inspire the confidence of the Court, in light of the contradictions,
multiplicity of versions and material improvements. The other
witness to prove the recovery is PW-2, the panch. Notably, PW-
2 was a waiter at a restaurant and he deposed that he had visited
the police station himself. It is difficult to accept that PW-2 just
happened to visit the police station on his own and ended up
becoming a witness of recovery of the dead body. Firstly, his visit
to the police station does not fit in the normal chain of
circumstances as it is completely unexplained. A police station is
not per se a public space where people happen to visit in the
ordinary course of business and therefore, an explanation is
warranted. Secondly, a normal person would generally be
hesitant in becoming a witness to the recovery of a dead body.
There is nothing on record to indicate that any notice to join
investigation was given to PW-2 by the I.O./PW-16. In such
circumstances, it would not be safe to rely upon the testimony of
PW-2 as he could reasonably be a stock witness of the I.O.

22. Furthermore, we deem it appropriate to note that the
identity of the dead body recovered from the well is also not
beyond question. The Trial Court had also noted the doubts
regarding the identity of the dead body, however, the identity of
the deceased was held to be established in light of the fact that

Crl. Appeal No. 622/2013 Page 15 of 22
the identification was done by PW-1, father of the deceased. The
Trial Court also relied upon the fact that the identification was
not challenged by either side. Be that as it may, we consider it
important to note that there exist serious doubts regarding the
identity of the dead body recovered from the well. The
description of the deceased given by PW-1 in his complaint
Ex.P1 did not match with the description of the dead body. The
clothes found on the dead body were substantially different from
the clothes mentioned by PW-1 in his complaint. The presence of
ornaments was not mentioned in the complaint. Furthermore,
identification of the dead body by face was not possible as the
body had started decomposing due to lapse of time. Admittedly,
the dead body was recovered after 12 days of the incident from a
well. Sensitive body parts were found bitten by aquatic animals
inside the well. The theory of ornaments has already been held to
be a figment of imagination by the Trial Court and the High Court
in an unequivocal manner. Therefore, the prosecution case
regarding the identity of the dead body is not free from doubts.

23. Another circumstance which weighs against PW-1 in a
material sense is the deafening silence on his part when PW-5 and
PW-6 informed him regarding the factum of the deceased being
thrown into the well. Notably, the said fact was brought to the
knowledge of PW-1 well before 15.11.2002. Despite so, PW-1
maintained silence and did not even approach the police for

Crl. Appeal No. 622/2013 Page 16 of 22
investigation or information on such a crucial aspect of
investigation. An anxious father would have rushed to the police
station on receiving an information of this nature. The subsequent
conduct of PW-1, after the receipt of such material information,
is unnatural. Furthermore, PW-5 only saw the appellant taking
away the child, PW-6 also saw the appellant only and PW-7 saw
three persons throwing the child in the well. The versions are
manifold. In such circumstances, it cannot be held that the
testimony of PW-1 is trustworthy and reliable.

24. Notably, it is a peculiar case wherein the appellant has been
convicted for the commission of murder without ascertaining the
cause of death in a conclusive manner. The report prepared by
PW-14 reveals drowning as the cause of death. For attributing the
act of throwing the deceased into the well upon the appellant, the
prosecution has relied upon PW-7 and PW-18, the witnesses in
support of the last seen theory. The testimonies of these witnesses
have been held to be incredible by both Trial Court and the High
Court. We suffice to observe that we agree with the findings of
the said Courts on this point. Furthermore, the post mortem
reveals the time of death within a time frame of 3 to 12 days.
Allegedly, the death took place on 03.11.2002. Such a wide time
frame concerning the crucial question of time of death raises a
serious doubt on the reliability of the post mortem report. When
this fact is seen in light of the already existing doubts on the

Crl. Appeal No. 622/2013 Page 17 of 22
identity of the deceased, one is constrained to take the report with
a pinch of salt. More so, this discrepancy again brings into
question the element of recovery of the dead body and identity of
the deceased.

25. This Court cannot lose sight of the fact that the Trial Court
had appreciated the entire evidence in a comprehensive sense and
the High Court reversed the view without arriving at any finding
of perversity or illegality in the order of the Trial Court. The High
Court took a cursory view of the matter and merely arrived at a
different conclusion on a re-appreciation of evidence. It is settled
law that the High Court, in exercise of appellate powers, may
reappreciate the entire evidence. However, reversal of an order of
acquittal is not to be based on mere existence of a different view
or a mere difference of opinion. To permit so would be in
violation of the two views theory, as reiterated by this Court from
time to time in cases of this nature. In order to reverse an order
of acquittal in appeal, it is essential to arrive at a finding that the
order of the Trial Court was perverse or illegal; or that the Trial
Court did not fully appreciate the evidence on record; or that the
view of the Trial Court was not a possible view.

26. At the cost of repetition, it is reiterated that the anomaly of
having two reasonably possible views in a matter is to be resolved
in favour of the accused. For, after acquittal, the presumption of

Crl. Appeal No. 622/2013 Page 18 of 22
innocence in favour of the accused gets reinforced. In Sanjeev v.
State of H.P.7, this Court summarized the position in this regard
and observed as follows:

“7. It is well settled that:

7.1. While dealing with an appeal against acquittal, the
reasons which had weighed with the trial court in acquitting
the accused must be dealt with, in case the appellate court is
of the view that the acquittal rendered by the trial court
deserves to be upturned (see Vijay Mohan Singh v. State of
Karnataka8, Anwar Ali v. State of H.P.9)
7.2.
With an order of acquittal by the trial court, the normal
presumption of innocence in a criminal matter gets
reinforced (see Atley v. State of U.P.10)
7.3.
If two views are possible from the evidence on record,
the appellate court must be extremely slow in interfering
with the appeal against acquittal (see Sambasivan v. State of
Kerala11)”

27. It may be noted that the entire case of the prosecution is
based on circumstantial evidence. The principles concerning
circumstantial evidence are fairly settled and are generally
referred as the “Panchsheel” principles. Essentially,
circumstantial evidence comes into picture when there is absence
of direct evidence. For proving a case on the basis of
circumstantial evidence, it must be established that the chain of
circumstances is complete. It must also be established that the

7 (2022) 6 SCC 294
8 (2019) 5 SCC 436
9 (2020) 10 SCC 166)
10 AIR 1955 SC 807
11 (1998) 5 SCC 412

Crl. Appeal No. 622/2013 Page 19 of 22
chain of circumstances is consistent with the only conclusion of
guilt. The margin of error in a case based on circumstantial
evidence is minimal. For, the chain of circumstantial evidence is
essentially meant to enable the court in drawing an inference. The
task of fixing criminal liability upon a person on the strength of
an inference must be approached with abundant caution. As
discussed above, the circumstances sought to be proved by the
prosecution are inconsistent and the inconsistencies in the chain
of circumstances have not been explained by the prosecution. The
doubtful existence of the extra judicial confession, unnatural
conduct of PW-1, recovery of dead body in the presence of an
unreliable witness PW-2, contradictions regarding arrest,
unnatural prior and subsequent conduct of PW-1, incredible
testimony of the witnesses in support of the last seen theory etc.
are some of the inconsistencies which strike at the root of the
prosecution case. To draw an inference of guilt on the basis of
such evidence would result into nothing but failure of justice. The
evidence on record completely fails the test laid down for the
acceptability of circumstantial evidence. Therefore, in light of the
consolidated discussion, all three issues are hereby answered in
negative.

28. Before parting, we consider it our duty to refer to the
catena of judgments relied upon by the respondent to contend that
minor inconsistencies could not be construed as reasonable

Crl. Appeal No. 622/2013 Page 20 of 22
doubts for ordering acquittal. Reference has been made to Sucha
Singh v. State of Punjab12, Mallikarjun13 and Hari Singh v.
State of Uttar Pradesh14.

29. No doubt, it is trite law that a reasonable doubt is
essentially a serious doubt in the case of the prosecution and
minor inconsistencies are not to be elevated to the status of a
reasonable doubt. A reasonable doubt is one which renders the
possibility of guilt as highly doubtful. It is also noteworthy that
the purpose of criminal trial is not only to ensure that an innocent
person is not punished, but it is also to ensure that the guilty does
not escape unpunished. A judge owes this duty to the society and
effective performance of this duty plays a crucial role in securing
the faith of the common public in rule of law. Every case, wherein
a guilty person goes unpunished due to any lacuna on the part of
the investigating agency, prosecution or otherwise, shakes the
conscience of the society at large and diminishes the value of the
rule of law. Having observed so, the observations in this regard
may not advance the case of the respondent in the present appeal.
It is so because the inconsistencies in the case of the prosecution
are not minor inconsistencies. As already discussed above, the
prosecution has miserably failed to establish a coherent chain of

12 (2003) 7 SCC 643
13 Supra
14 Supra

Crl. Appeal No. 622/2013 Page 21 of 22
circumstances. The present case does not fall in the category of a
light-hearted acquittal15, which is shunned upon in law.

30. In light of the foregoing discussion, we hereby conclude
that the High Court has erred in reversing the decision of
acquittal. The evidence of the prosecution, at best, makes out a
case for suspicion, and not for conviction. Accordingly, the
impugned order and judgment are set aside. We find no infirmity
in the order of the Trial Court and the same stands restored.
Consequently, the appellant is acquitted from all the charges
levelled upon him. The appellant is directed to be released
forthwith, if lying in custody.

31. The captioned appeal stands disposed of in the aforesaid
terms. Interim applications, if any, shall also stand disposed of.

32. No order as to costs.

…………………………J.
[ Bela M. Trivedi ]

…………………………..J.
[ Satish Chandra Sharma ]
New Delhi
February 20, 2024

15 ‘Proof of Guilt’, Glanville Williams.

Crl. Appeal No. 622/2013 Page 22 of 22

Add a Comment

Your email address will not be published. Required fields are marked *

VISHAL SAINI ADVOCATE