While not leaving even an iota of doubt on a very significant pertaining to presumption of innocence or involvement of the accused, the Supreme Court in a most learned, laudable, landmark and latest judgment titled Pradeep Kumar vs State of Chhattisgarh in Criminal Appeal No. 1304 of 2018 and cited in 2023 LiveLaw (SC) 239 that was pronounced as recently as on March 16, 2023 has reiterated that in cases where two views are possible while relying on circumstantial evidence, the view favouring the accused must be preferred. It must be mentioned that the Apex Court’s reiteration came in a plea challenging a judgment of the High Court which affirmed a Trial Court’s judgment convicting Pradeep Kumar, the appellant under Sections 302/34 IPC and 201/34 IPC based on his extra judicial confessional statement made in the presence of certain prosecution witnesses. It was also underscored by the Apex Court that, Suspicion, howsoever grave or probable it may be, cannot substitute the evidence, be it circumstantial or direct in nature, in establishing the guilt of the accused beyond reasonable doubt, the onus of which, at the first instance, is to be discharged by the prosecution. The distance between may be and must be is quite large and it divides vague conjectures from solid conclusions. Very rightly so!

At the very outset, this brief, brilliant and balanced judgment authored by Hon’ble Mr Justice Sanjay Karol for a Bench of the Apex Court comprising of Hon’ble Mr Justice BR Gavai and himself sets the ball in motion by first and foremost putting forth in para 1 that:
On 01.10.2003, Umesh Chowdhary, a resident of village Chitarpur falling within the territorial limits of Police Station Dhaurpur District was allegedly murdered by accused Pradeep Kumar (Appellant No. 2 in CRA No.940 of 2004) before the High Court Chhattisgarh, Bilaspur and Bhainsa alias Nandlal (Appellant No.1. before the High Court in the very same appeal) in relation to which FIR No.126/03 (Ex.P-6) was registered at Police Station Dhaurpur.

To put things in perspective, the Bench envisages in para 2 that:
On 02.10.2003, Investigation Officer, I. Tirkey (PW-19) commenced investigation and after verifying the place of occurrence sent the dead body for post-mortem analysis which was conducted by Dr. Kamlesh Kumar (PW-14) in terms of his report (Ex.P-10). Investigation revealed that the crime was committed on account of animosity which the Appellant was harbouring against the deceased. The motive being the former’s desire to use the shop in possession of the deceased in village Chitarpur.

As it turned out, the Bench then specifies in para 3 that:
The Trial Court, based on the extra judicial confessional statement (Ex.P-11) of accused Pradeep Kumar made in the presence of Ramkripal Soni (PW-1) and Gopal Yadav (PW-7), the depositions of Gajadhar Chowdhary (PW-10) father of the deceased, co-villagers Sirodh (PW-6), Radhika (PW-13) wife of (PW-7), all establishing the factum of prior animosity/tension inter se the parties; and with the addition of the police recovered keys of the shop of the deceased and his currency notes amounting to Rs.300/- from the possession of the Appellant. The Court convicted both the accused in relation to offences punishable under Section 302/34 IPC and 201/34 IPC and sentenced them to serve imprisonment for life and pay fine of Rs.500/- in relation to the offence under Section 302/34 as also suffer imprisonment for seven years and pay fine of Rs.500/- in respect of the offence punishable under Section 201 IPC.

As we see, the Bench then discloses in para 4 that:
The Trial Court found the testimonies of both PW-1 and PW-7 reliable (despite PW-1 not supporting the prosecution) and the prosecution to have established the factum of accused Pradeep Kumar having confessed his guilt before the Investigation Officer (PW-19). The Ld. Trial Court also found the recovery of articles seized as a result of the disclosure of statement, to be an additional link, as a chain of events, in support of the case set up by the prosecution.

While continuing further, the Bench reveals in para 5 that:
However in an appeal preferred by both the accused, the High Court upheld the conviction of accused Pradeep Kumar in relation to all the offences and the sentences in terms thereunder, but acquitted accused Bhainsa alias Nandlal on all counts.

Most significantly, the Bench minces just no words to mandate in para 6 while citing the most relevant case law that:
Hence, the present appeal filed by the Appellant – accused Pradeep Kumar. Significantly, none of the Courts below have returned finding to the effect that the guilt of the accused stands proven by the prosecution, beyond reasonable doubt. Suspicion, howsoever grave or probable it may be, cannot substitute the evidence, be it circumstantial or direct in nature, in establishing the guilt of the accused beyond reasonable doubt, the onus of which, at the first instance, is to be discharged by the prosecution. The distance between may be and must be is quite large and it divides vague conjectures from solid conclusions. [Shivaji Sahabrao Bobade & Another v. State of Maharashtra, (1973) 2 SCC 793.].

Equally significant is what is then held in para 9 that:
The accused cannot be convicted on the principles of preponderance of probability. It is the duty of this Court to ensure avoidance of miscarriage of justice at all costs and the benefit of doubt, if any, given to the accused. [Sujit Biswas v. State of Assam, (2013) 12 SCC 406, Hanumant Govind Nargundkar v. State of M.P. (AIR 1952 SC 343) and State v. Mahender Singh Dahiya, (2011) 3 SCC 109].

Needless to say, the Bench then very rightly states in para 10 that:
The impugned judgement to say the least, is sketchy. The presumption of the guilt of accused Pradeep Kumar by both the courts below is based on improper and incomplete appreciation of evidence which in the considered view of this Court, has resulted into travesty of justice.

Be it noted, the Bench notes in para 21 that:
The substratum of the evidence, that is the extra judicial confessional statement of the Appellant, apart from being hit by Section 27 of the Indian Evidence Act, 1872, we find it not to have been supported by Ramkripal Soni (PW-1) and Gopal Yadav (PW-7), who as is evident, was himself a suspect. He admits it to be ...correct to say that the Inspector had detained me and some villagers where the dead body was laying... and ...it is correct to say that I did not disclose the statement made by accused Pradeep to any other person before 4 o’clock... We have already noticed his wife Radhika (PW-13) to have supported this statement. Now, if this witness was himself a suspect, his testimony cannot be said to be unimpeachable or free from blemish. Still further, deposition of PW-7 reveals the witness not to have deposed truthfully and the prosecution to have introduced another theory as according to him the accused had immediately, after the incident confessed the crime with him. This was in the night intervening first and second October, 2003. But then, he does not disclose such fact to anyone. We may remind the prosecution that he is a co-villager. His version also appears to be false for he admits voices and noises were audible from the place of the occurrence of the incident and that he heard none on the fateful day. He admits that there are houses of other persons including Ramsanehi, closer to the spot of crime. He did not bother to make inquiries for ascertaining the truth from any of the co-villagers, including all those named by him. This witness, in our considered view, cannot be said to be reliable and trustworthy and this we say so for the reason, that as according to his deposition, he received information of the death of deceased at 7:00-8:00 AM, the following morning and yet he did not visit the spot of the crime until the police reached, which was at 10:00 AM and only much later, got his statement recorded at about 4:00 PM. His stoic silence, in not informing or meeting any of the family members of the deceased, neighbours or Police is unexplainable.

It is worth noting that the Bench then notes in para 22 that:
Dealing with the star witness of the prosecution which is the Investigation Officer, I.Tirkey (PW-19), we find his testimony to be wholly unworthy of any credence: unbelievable; and the witness to be unreliable. This we say so for the reasons that he did not record the statement of Gajadhar Chowdhary (PW-10) or Gopal Yadav (PW-7) in respect any prior animosity between the deceased and the accused. The evidence pertaining to the genesis of the crime was not collected by him. He also does not state as to what made him detain accused Pradeep Kumar on 3.10.2023. Be that as it may, he did not examine witnesses, who in our considered view, perhaps may have thrown some light about regard to the actual occurrence of the incident. He admits that houses of Ramsevak, Gopal and Rashri are just at a distance of 30 to 70 meters from the spot of the crime. Yet, he did not examine any of them. Why so? No explanation is forthcoming. Crucially, he admits that:
the investigation concluded having no direct evidence indicating the time and the manner in which the crime took place. He admits to have prepared some document in relation to the keys recovered from the accused however no such fact is recorded in his diary. In fact, such fact is not found recorded in the Panchnama prepared by him. The basis for the Investigation Officer (PW-19) to have arrived at the guilt of co-accused Bhainsa is missing in his statement. In fact, he does not even state to have suspected Bhainsa of having committed any crime. The sole basis for the Investigation Officer (PW-19) to have arrested the Appellant for having committed the crime is his extra judicial confession (Ex. P.11) which in our considered view, apart from becoming inadmissible, is of no use as it has not led to recovery of any new fact – be it the place of the grocery shop; prevailing tension between the accused and the deceased; recovery of the body of the deceased near the Dodki drain: All these facts were known to the police from before and as far as recovery of money and key chain is concerned we have already discussed issue.

Most damningly, the Bench then while taking potshots at the manner in which investigation was done, the Bench then observes in para 23 that:
Apart from sending the dead body for post-mortem, the Investigation Officer (PW-19) does not state what investigation he conducted on the crime spot. It is the case of the prosecution that only this person conducted the investigation and that he was not engaged in any other crime or had to attend to other urgent work, resulting into the delay thereof. Perusal of the First Information Report (Ex.P-6) does reveal Gajadhar Chowdhary (PW-10) to have disclosed the name of accused Pradeep Kumar as a suspect in the crime. Whether such report was lodged in time or not, itself is in doubt. That apart if the Investigation Officer (PW-19) was himself aware of the suspect then what prevented him from immediately detaining or examining him. In fact, it has come on record that other persons were detained as suspects. The investigation conducted is absolutely shady and has been done in a casual manner. In this backdrop it cannot be said that the prosecution witnesses, more specifically (PW-19), (PW-10) and (PW-7) have deposed truthfully.

To be sure, the Bench enunciates in para 24 that:
It is important to note that the cardinal principles in the administration of criminal justice in cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted. [Kali Ram v. State of H.P. (1973) 2 SCC 808].

Most forthrightly, the Bench holds in para 25 that:
In the present case, we state that the circumstances present before us, taken together, do not establish conclusively only one hypothesis, that being the guilt of the accused, Pradeep Kumar. The presumption of innocence remains in favour of the accused unless his guilt is proven beyond all reasonable doubts against him. [Babu v. State Kerala, (2010) 9 SCC 189]. The cherished principles or golden threads of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly which was done by the Courts below.

Most remarkably, the Bench points out in para 27 that:
Normally, we do not interfere with the concurrent findings of fact of the Courts below. We step in only in exceptional cases or where gross errors are committed, overlooking crying circumstances and well established principles of criminal jurisprudence leading to miscarriage of justice. Hence it becomes our bounden duty to correct such findings in view of the principles enunciated in Ramaphupala Reddy v. State of Andhra Pradesh, (1970) 3 SCC 474, Balak Ram v. State of U.P., (1975) 3 SCC 219 and Bhoginbhai Hirjibhai V. State of Gujarat, (1983) 3 SCC 217.

Most commendably, the Bench then holds in para 28 that:
To conclude, we state that both the courts below, erred in finding the Appellant guilty of having committed the crime, charged for, under Section 302/34 IPC read with 201/34 IPC. Hence we set aside the findings of guilt and sentence arrived at vide judgment dated 28.08.2004 by the Ld. Trial Court as subsequently affirmed by the High Court in its judgement dated 21.07.2017 in CRA No.940 of 2004 titled as Bhainsa@Nandlal and Anr. vs. The State of Chhattisgarh.

Finally, the Bench concludes by holding in para 29 that:
The appeal is allowed and the Appellant stands acquitted of all the charges framed against him. We direct the Appellant Pradeep Kumar be released forthwith unless required in any other case.

In conclusion, we thus see that the Apex Court while taking most balanced approach very rightly holds that in cases of circumstantial evidence when two views are possible, the view favouring the accused’s innocence has to be adopted. It thus merits no reiteration that all the lower courts and the High Courts must pay heed to what the Apex Court has held in this leading case and act accordingly! There can be no denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh