IMPORTANT POINT
The judgment emphasizes that proof beyond reasonable doubt does not require absolute proof and that doubts must be substantial and based on reason and common sense. It also clarifies the application of Section 106 of the Evidence Act in drawing adverse inference against an accused.

JUDGMENT :

Sreenivas Harish Kumar, J.

The judgment of conviction in S.C.No.103/2016 on the file of I Additional Sessions Judge, Kolar, has given rise to these two appeals. Criminal Appeal No.1297/2018 is preferred by accused No.1 and Criminal Appeal No.1291/2020 is preferred by accused No.2. They were tried for the offence punishable under Section 302 read with Section 34 of IPC and each of them has stood sentenced to life imprisonment and fine of Rs.10,000/-each with default imprisonment for a period of one year.

2. The prosecution case in brief is that because of illicit relationship between both the accused, they killed Mahendra, the husband of accused No.2. The incident occurred on the intervening night of 09.01.2016 and 10.01.2016 when the parents of the deceased had been to Bengaluru. PW1, the father of Mahendra gave a report of the incident as per Ex.P1 to the police based on which FIR came to be registered. The investigation resulted in both the accused being charge sheeted for the offence under section 302 of IPC.

3. PW1 to 18 are the witnesses examined, Exs.P1 to 36 are the documents and MOs.1 to 15 are the material objects got marked by the prosecution to establish its case.

4. The case is based on circumstantial evidence. The trial court has found all the links in the chain of circumstances being proved to record conviction against the accused.

5. We have heard the arguments of Sri Hashmath Pasha, learned senior counsel appearing on behalf of Sri Nasir Ali, learned advocate for the appellant in Criminal Appeal No.1297/2018, Sri K.B.Monesh Kumar, learned advocate for the appellant in Criminal Appeal No.1291/2020 and Sri Vijayakumar Majage, learned State Public Prosecutor-II for the respondent/State.

6. The incident occurred in the house of PW1, when he and his wife had come over to Bengaluru. Only accused No.2 and her husband were present in the house. There is no dispute regarding this. While arguing the learned counsel for the accused did not dispute the presence of accused No.2 in the house. But the fact in issue is whether the third man who gained entry into the house during late hours of night was accused No.1.

7. The trial court has found the circumstances namely, (i) place of occurrence (ii) recovery of blood stained clothes of accused No.1 and 2 (iii) recovery of weapons, (iv) arrest of accused 1 and 2 (v) medical evidence (vi) FSL report, and (vii) explanation to be offered by accused No.2 under section 106 of the Indian Evidence Act, being proved.

8. Before reassessing the evidence one line of argument of Sri Hashmath Pasha needs to be addressed. His argument was that in a case based on circumstantial evidence, every circumstance must be proved beyond reasonable doubt. We are not inclined to accept this argument to be commendable.

9. Proof beyond reasonable doubt does not mean providing infallible or absolute proof. It is hardly possible. According to Section 3 of the Indian Evidence Act the term ‘proved’ takes the meaning that the Court after considering the matters before it believes in existence of a fact or considers the existence of a fact so probable that a prudent man under the circumstances of the particular case acts upon the supposition that it (fact) exists. The term ‘prove’ indicates the degree of certainty to treat a fact as proved. The prosecution is supposed to produce such kind of materials on which the court can reasonably act to reach the supposition that a fact exists. The Supreme Court in the case of STATE OF UTTAR PRADESH V. KRISHNA GOPAL AND ANOTHER [(1988) 4 SCC 302] has held that proof beyond reasonable doubt though of a higher standard, however cannot be of absolute standard. The observation of the Hon’ble Supreme Court is extracted below:

25. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What deg