Judges:A.Vardarajan, S. Murtaza Fazal Ali, Sabyasyachi Mukherjee, JJ.

Facts:

On 12th June 1982, in Takshila Apartment, Pune the deceased (Manju) was found dead. Before 4 months on 11th February 1982, she was married with the appellant, Sharad Bhirdichand.

She wrote two letters to her sister (Anju) and one letter to her friend (Vahini), in which she wrote that she was unhappy with her marriage. Her in-laws and husband ill-treated her. She had more expectations from her in-laws and husband. She went to her mother's home and after that her father-in-law called her for her sister-in-law's marriage was going to be held on 13-6-82. She came to her marital house to attend the wedding.

Manju, accompanied by Rameshwaram (Appellant's brother), and his wife Anuradha and their child returned to the flat on 11-6-82 near about 11.00 p.m. Her husband was not in the apartment at that time but it is alleged that he returned soon after and administered potassium cyanide to the deceased( Manju).

Thereafter, the appellant went to his brother, Rameshwar who was also living in the same flat and brought Dr. Lodha from Takshila Apartments. At the suggestion of Dr. Lodha, Dr. Gandhi was also called and both of them found that Manju was dead and her death was an unnatural one and advised the body to be sent for post-mortem in order to determine the cause of death.

The Appellant, Rameshwar Birdhichand Sarda and RamvilasRambagas Sarda, were accused 1, 2 and 3 respectively in the Trial court. The Court found all the three accused guilty as charged, convicted them accordingly and sentenced the appellant to death under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as IPC, 1860) and all the co-accused to rigorous imprisonment for two years and a fine of Rs2,000 each under Section 120B IPC, 1860 but did not award any sentence under Section 201 IPC, 1860 read with Section 120B IPC, 1860 on the ground of circumstantial evidence i.e. letters and post-mortem report which showed that the death caused by consuming poisonous (Potassium Cyanide) and the court declared the letter as dying declaration under Section 32(1) of the Indian Evidence Act, 1872(hereinafter referred to as IEA, 1872)

The District Court sent the death confirmation to High Court. The accused (Sharad) and co-accused filed an appeal to the High Court and the State filed the revision for enhancement of sentences of the co-accused.

The High Court combined all the three cases and acquitted Rameshwaram and Ramvilas, co-accused but the High Court confirmed the sentence of death granted to the Appellant(accused). Hence the appellant came up before the Supreme Court after obtaining Special Leave.

Issues:

(i) Whether the burden of proof can be imposed upon the defence?

(ii) Whether letter written by the deceased Manjushree would be considered as dying declaration under Section 32 of the IEA, 1872?

(iii) Whether the conviction can be given solely on the ground of the circumstantial evidence?

Laws:

Indian Evidence Act, 1872 - Section 32 -When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

Indian Evidence Act, 1872 - Section 8 -Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Indian Penal Code, 1860 - Section302 -Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.

Indian Penal Code, 1860 -Section120B -Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

Indian Penal Code, 1860 -Section201 - Causing disappearance of evidence of offence, or giving false information to screen offender is punishable under this section.

Contentions:

Appellant

(i) The written letters are not admissible as dying declaration under Section 32 nor under Section 8 of the IEA,1872

(ii) The case is not at all covered by Section 32(1) of the IEA,1872

(iii) If the statement of the deceased is to be admissible under this section it must be a statement relating to the circumstances of the transaction resulting in her death.

(iv) The necessary condition of admissibility under Section 32 of the IEA,1872 is that the circumstance must have some proximate relation to the actual occurrence and there is lack of proximity in the present case.

(v) The circumstance of the appellant having been last seen with the deceased has not been proved conclusively so as to raise an irresistible inference that Manju's death was a case of blatant homicide.

(vi) 'Circumstances of the transaction' is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in 'circumstantial evidence' which includes the evidence of all relevant factors. It is on the other hand narrower than 'res gestae'. Circumstances must have some proximate relation to the actual occurrence.

(vii) To the actual occurrence, and those general expressions indicating fear or suspicion, whether of a particular individual or otherwise and not directly to the occasion of death is not admissible.

Respondent

(i) The written letters by the deceased, two of which were addressed to her sister Anju and one of her friends Vahini are coming under the purview of dying declaration under Section 32 of IEA, 1872.

(ii) The oral statements made by the deceased to her father, mother, sister, friend showing her state of mind shortly before her death and the complaints she made regarding the ill-treatment by her husband are the evidence that should be admitted.

(iii) The appellant was last seen with the deceased in the room until the matter was reported to the police is another important evidence.

(iv) The medical evidence taken alongwith the report of the chemical examiner which demonstrably proves that it was a case of homicide, completely rules out the theory of suicide.

Analysis:

The burden of proof can't be imposed upon the defence

I. The Criminal Justice system in India provides for evidence to be proved before a court of law in order to ascertain the guilt of the accused. As per the IEA, 1872 as interpreted by several judicial pronouncements, the standard set provides the evidence to substantially prove the case beyond reasonable doubt. The burden of proof in a criminal case rest on the prosecution and not upon the defence.

II. In the instant case there was a reasonable possibility of the deceased having committed suicide and the prosecution has not been able to exclude or eliminate this possibility beyond reasonable doubt.

III. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence.

IV. Falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.

V. Thus, the burden of proof lies on the prosecution and cannot be imposed upon the defence.

Letter written by the deceased - Dying declaration under Section32 of IEA, 1872

I. Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death.

II. Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible.

III. The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. Circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death of the declarant.

IV. The alleged oral statements of deceased (Manju) and what she has stated in her letters may relate to matters perhaps having a very remote bearing on the cause or the circumstances of her death. Those circumstances do not have any proximate relation to the actual occurrence resulting in her death due to potassium cyanide poison, though, as for instance in the case of prolonged poisoning they may relate to dates considerably distant from the date of the actual fatal dose. They are general impressions of Manju indicating fear or suspicion, whether of a particular individual or otherwise and not directly related to the occasion of her death. It is not the case of the prosecution that the present case is one of prolonged poisoning.

Conviction cannot be given solely on the basis of circumstantial evidence

I. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. There must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

II. The panchsheel test to examine circumstantial evidence in general, the five golden principles should be fulfilled inorder to convict a person solely on the basis of circumstantial evidence:

1. The circumstances from which the conclusion of guilt is to be drawn should be finally established.
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
3. The circumstances should be of a conclusive nature and tendency.
4. every possible hypothesis except the one to be proved should be excluded, and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused

III. The prosecution has not fulfilled the essential requirements of a criminal case which rests purely on circumstantial evidence.

IV. From the letters written by the deceased it can be safely held that there was a clear possibility and a tendency to commit suicide due to desperation and frustration. The panchsheel test could not be satisfied, so the accused couldn't be held guilty under Section 302 of IPC solely on the basis of circumstantial evidence.

Conclusion:

I. In view of the fact that this is a case of circumstantial evidence and further in view of the fact that two views are possible on the evidence on record, one pointing to the guilt of the accused and the other his innocence, the accused is entitled to have the benefit of one which is favourable to him. In that view of the matter the guilt of the accused has not been proved beyond all reasonable doubt.

Important precedents:

(i) Hanumant v. State of Madhya Pradesh

(ii) Manohar Lal & Ors. v. State of Punjab 

(iii) Gokul Chandra Chatterjee v. The State 

(iv) State v. Kanchan Singh & Anr.