IMPORTANT POINT
On a differentce of opinion between the two judges of the Division Bench, when the matter is referred to the third Judge for his opinion, the third Judge has a statutory duty u/s 392 Cr.P.C. to consider the opinion of the two Judges for giving his own opinion on consideration of the facts and circumstances of the case but he is under no obligation to accept the view of one of the Judges holding in favour of acquittal of the accused.

Headnote:(i) Criminal Procedure Code, 1973—Section 392—Scope and ambit—Procedure where Judges or Court of Appeal are equally divided—Difference of opinion between two Judges of Division Bench—Matter to be referred to third Judge for his opinion—Third Judge has a statutory duty u/s 392 to consider opinion to two Judges—However, he is under no obligation to accept view of one of the Judges holding in favour of acquittal of accused.
       Held : Section 392 Cr.P.C. clearly contemplates that on a difference of opinion between the two judges of the Division Bench, the matter is to bereferred to the third for his opinion so that the appeal is finally disposed of on the basis of such opinion of the third Judge. In the scheme of Section 392 Cr.P.C., the view that third Judge, as a rule of prodence or on the question of judicial etiquette, will lean in favour of the view of one of the Judges in favour of acquittal of the accused, cannot be sustained. (Para 7)
       (ii) Indian Penal Code, 1860—Section 302/34—Conviction under—Appeal—Accusation of murdering her mother-in-law—On direct evidence—Conviction on basis of urcumstantial evidence—Appellant anddeceased were the only two adult members in the bungalow on night of indicent—Appellant was in her bed room when crime had ben committed in adjoining room—She and her infant had also suffered some injuries which were likely to be quite serious—Injuries suffered by assused and infant were neither self inflicted nor cause by any friendly hand—Question of probable time of death of deceased—Opinion of doctor holding post mortem examination preferred to expert opinion—Motive not proved—non existence of any defence would on person of accused—no adverse inference can be drawn against accused—No conviction can be based on circumstantial evidence since adduced in the case—Conviction based on surmise and conjecture—Not legally sustainable.
       Held that the injuries caused on the eye of the accused and also one of the injuries on the head were quite serious and it ws highly improbable that the accused would invite such injuries to be caused by a friendly hand. We may also indicate here that the infant baby aged only six months had also suffered injuries and the doctor has given opinion that the abrasion suffered by the infant was possible by contact with ablunt object and could be caused by a fall and the diffused swelling found on the infant reflected the manifestation of mome internal injury. In our opinion, it is also highly improbable that such injuries could becaused on the infant of six months either by the accused herself who was mother of the child or she would allow anybody to caused such injury voluntarily to give a show that infant along with herself had been attacked. On the contrary, the nature of the injuries suffered by the infant fits in with the statement made by the accused indicating the manner in which the infant was dealt with bythe assailant thereby causing the injuries on the child. (Para 27)
       The case of the accused is thatwhen hering the cries of the mother-in-law, she woke up from sleep and opened the door connecting her bed room andthebed room fo mother-in-law, she found the mother-in-law lying seriously injured in a pool of blood and immediately she was attacked by the assailant who pushed her with force and also gave injuries on the head and the child was also hurt. It is not posible to precisely indicate how a person will reat in a situation. If the accused having awakenfrom sleep, had noticed the ghastly scene that the mother-in-law had been seriously injured and she and her child and also been attacked suddenly by the intruder, it is not unlikely that being completely taken aback and being out of nerve, the accused had lost the initiative for resistance. Hence, on account of non-existence of any defence wound on the person of the accused, on adverse inference can be reasonably drawn against the accused. (Para 31)
       In view of our specific finding that the accused hereself and her infant child had also been assaulted by the intruders and the accused suffered some injuries which were likely to be quite serious if little more force would have been applied, it cannot be reasonably held that the accused had invited the intruder to enter the bungalow for bing assaulted. (Para 33)
       In the aforesaid circumstances, no conviction can be based jon circumstantial evidence since adduced in the case. In our view, such conviction is based more on surmise and conjecture than on any reliable evidences from whichan irresistible conclusion about the complicityof the accused in causing the murder, can at all be drawn.
       Further held : The learned Judge who had held in favour of the acquittal of the accused has very strongly observed that in this case, the accused was unfortunately persecuted by the prosecution and no prosecuted in a fair manner. Even if the prosecution does not deserve such strong observation, it appears to us that in this case, the prosecution had acted with little over-zealousness thereby failing to maintain the dispaasionate approach in a criminal trial which is expeted from the prosecution toensure a fair trial. (Para 35)
       We may indicate here that more the suspicious circumstances, more care and caution are required to be taken otherwise the suspicious circumstance may unwittingly enter the adjudicating though process of the Court even though the suspicious circumstances had not been clearly established by clinching and reliable evidences. It appears to us that in this case, the decision of the Court in convicting the appellant has been the result of the suspicious circumstacnes entering the adjudicaing though process of the Court. (Para 39)
       It is very unfortunate that the appellant stood convicted for offence of murder of her mother-in-law both by the learned Sessions Judge and also by the High Court even though there is no clear and clinching evidecne for sustaining such conviction. It is a pity that the appellant had to suffer a great mental truama and social stigma for all these years on account of accusation of murdering her mother-in-law and ultimately for being convicted for such offencesince upheld by the High Court in appeal. We resonably expect that her acquittal on the findings made by this Court will remove the social stigma and accusation of a heinous crime which she had to silently bear for such a long time. (Para 42)
       (iii) Evidence Act, 1872—Section 3—Circumstantial evidence—Principle for basing a conviction on.
       Held that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion aboutthe guilt of the accused can be safely drawn and no other hypothesis against the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicionmay take the place of legal proof. The Courut must satisfy itself that various circumstnces in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. In has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some times, unconsciously it may happen to be a short step between moral certainly and legal proof. It has been indicated by this Court that there is a long mental distance between ‘may be true’ and ‘must be tue’ and the same divides conjectures from sure conclusions. (Para 38)
       Further held that more care and caution are required to be taken otherwise the suspicious circumstance may unwittingly enter the adjudicating though process of the Court even though the suspicious circumstances had not been clearly established by clinching and reliable evidences. (Para 39)
       (iv) Evidence Act, 1872—Section 8—Motive—Murder case—Circumstantial evidence—Motive assumes greater importance than in the case where direct evidences are available—If evidences of murder are very clinching and reliable—Conviction can be based even if motive not established.
       Held : Though motive for murder may not be revealed in many cases but if evidences of murder are very clinching and reliable, conviction can bebased even ifthe motive is not established. In a case of cricumstantial evidence, motive assumes greater importance than in the case where direct evidences for murder are available. In the instant case, no motive has been ascribed as towhy the accused would cause the murder of her mother-in-law along with some unknown assailant by sharing common intention with such assailant or assailants. There is no evidence that there was better relation between the deceased and the accused. On the contrary, it is apparent that the members of the family had decided that the deeased would be kept under the care of the accused. (Para 30)
       (v) Evidence Act, 1872—Section 101 to 103—Burden of proof—Falsity of defence—Cannot take placeof proof of facts which prosecution has to establish in order to succeed—A false plea may be considered as an additional circumstance if other circumstances proved and established point out guilt of accused. (Para 37)
       (vi) Evidence Act, 1872—Section 45—Experts opinion—In obasence of any convincing evidence that doctor holding post mortem examination had deliberately given a wrong report—His evidence not liable to be discarded—Opinion of doctor hodling post mortem examination is to be preferred to expert opinion when. (Para 28)

Judgement Key Points

The legal document primarily discusses the principles related to the evaluation of circumstantial evidence, the procedures followed when there is a division of opinion among judges, and the importance of establishing a chain of reliable and clinching evidence to prove guilt beyond reasonable doubt. It emphasizes that each incriminating circumstance must be clearly established and must form a complete chain that leads irresistibly to the conclusion of guilt, ruling out any reasonable hypothesis of innocence. The document also highlights that the third judge, when called upon to resolve a difference of opinion, has a statutory duty to consider the opinions of the judges but is not obligated to accept the view favoring acquittal.

In the context of offences like theft under section 380 of the Indian Penal Code, the principles outlined suggest that proof of guilt must be based on concrete and reliable evidence that forms a complete and unbroken chain of circumstances. Mere suspicion, conjecture, or suspicious circumstances that are not supported by clinching evidence cannot suffice for a conviction. The evidence must establish beyond reasonable doubt that the accused committed the offence, with each circumstance contributing to a chain that leaves no room for any other reasonable explanation.

Additionally, the principles underscore that the burden of proof remains on the prosecution to establish all essential facts, including the unlawful possession of stolen property, the identity of the accused, and the act of theft. The accused’s statement under oath or during investigation is not evidence by itself but can be considered as an additional circumstance if supported by other reliable evidence. The absence of a direct link or clear proof of possession or theft can weaken the prosecution’s case, and the court must be cautious to avoid reliance on suspicion or conjecture.

In summary, for a conviction related to offence 380 (theft), the evidence must form a complete and convincing chain, with each link established by reliable proof, so that the only logical conclusion is that the accused committed the theft. Any weak or circumstantial evidence that does not exclude other hypotheses cannot be sufficient for a conviction.

JUDGMENT

This appeal unfolds a very sad incident where on account of murder of her mother-in-law, the appellant has been convicted for such murder under Section 302 read with Section 34 IPC not on the basis of any direct evidence but on the basis of circumstantial evidence led by the prosecution. It may be indicated here that although the appellant was also charged under Section 302 read with 120B IPC, the trial court acquitted the appellant of such offences but convicted her for offence under Section 302 read with Section 34 IPC. Against such decision of the learned Ssessions Judge, the appellant preferred an appeal before the Gujarat High Court. The state also preferred an appeal against acquittal of the charges under Section 302 read with 120B IPC and Section 302 IPC. The Division Bench of the High Court dismissed the appeal preferred by the State. So far as conviction under Section 302 read with 34 IPC is concerned, the Judges of the Division Bench differed. One of the Judge connstituting the Division Bench upheld the conviction of he appellant under Section 302/34 IPC but the other Judge of the Division Bench held that the case against the appellant was not established beyond reasonable doubt and the conviction was based on surmise and conjecture and the accused was entitled to be acquitted. In view of such differenced of opinion, the appeal was referred to a third Judge of the High Court under Section 392 of the Code of Criminal Procedure. The third Judge has upheld the conviction of the appellant under Section 302/34 IPC and the appeal of the appellant was, therefore, dismissed by the High Court.

2. Before the third Judge of the High Court reliance was made in Empress v. Debi Singh1, since reproduced in the decision In Re: Narsiah2, that “as a matter of judicial etiquette, when one Judge differs from his brother Judge on a pure question of the weights of evidence as to the propriety of a conviction,jthe opinion of the Judge who is in favour of acquittal should prevail at least, as a general rule”. It was contended that in view of finding by one of the members of the Devision Bench that the appellant was entitled to be acquitted such view in favour of acquittal, as a rule of prudence, should be accepted by the third Judge hearing the appeal under Section 392 Cr. P.C. The third Judge, however, by referring toseveral decisions of this court has discarded such contention and has considered the appeal on merits. We feel that it will be appropriate to consider the scope and ambit of Section 392 of the Code of Criminal Procedure and the question of acceptance of the view in favour of acquittal, as a rule of prudence or on the score of judicial etiquette by the third Judge.

3. The procedure to be adopted sou moto by the court in the event of difference of opinion between the two judges, comprising the Division Bench of the High Court was first introduced in Section 429 of the Code of Criminal Procedure 1898. Section 429 of the Code of Criminal Procedure 1898 is tofollowing effect:

“When the judges compassing the court of appeal are equally divided in opinion, the case with their opinions thereon, shall be laid before another Judge of the same court, and such Judge after such hearing (if any) as he thinks fit shall deliver his opinion, and the judgment or order shall follow such opinion.”

4. The Law Commission in the 41st Report had observed that if eithr of the Judges first hearing the appeal so requires or if after reference, the third Judge so requires, the case should be reheard and decided by a Bench of three or more Judges. This was incorporated in Clause 402 of the Bill. The Joint Select committee however substituted the words “larger Bench of Judges” for the words “Bench of three or more Judges” occurring in clause 402. Section 392 reproduces the proviso as amended by the Committee. Section 392 of the Code of Criminal Procedure as enacted is to the following effect:—

392. “Procedure where Judges or Court of Appeal are equ

Click Here to Read the rest of this document

1997 Supreme(SC) 825

Cases Referred (10)