Holding

A conviction cannot be based on presumption; the circumstantial evidence presented was insufficient to prove the appellant’s guilt beyond reasonable doubt.

Summary

The appellant, Dinesh Borthakur, was convicted by the trial court and the High Court for the murder of his wife Mala Borthakur and adopted daughter Munni under Section 302 IPC, based largely on circumstantial evidence such as a sniffer dog’s proximity to him, the presence of a pesticide bottle, and his alleged lack of emotional reaction. The Supreme Court held that the prosecution failed to establish a direct link between the accused and the deaths, that no motive was proven, and that the conviction was based on presumption rather than concrete material. Evidence from the sniffer dog was deemed inadmissible, and no adverse inference could be drawn from the timing of the FIR. Consequently, the Court set aside the conviction, acquitted the appellant, and ordered his release.

Issues considered

The adequacy of circumstantial evidence to sustain a conviction for murder
Whether the accused's lack of emotional reaction can be used as evidence of guilt
The admissibility and evidentiary value of a sniffer dog’s behavior
Whether an adverse inference can be drawn from the delay in lodging the FIR
Whether the prosecution established a link between the accused and the alleged poison
The necessity of motive and a complete chain of circumstances for conviction

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 302

Subjects

murdercircumstantial evidencepresumptionsniffer dogadverse inferencemotivelife imprisonmentacquittal

Judgment

[2008] 4 S.C.R. 881

DINESH BORTHAKUR A
v.
STATE OF ASSAM
(Criminal Appeal No.687 of 2007)
MARCH 13, 2008
---/ B
(S.B. SINHA AND DALVEER BHANDARI, JJ.)

r \ Penal Code, 1860; Section 302:
Murder - Accused-husband convicted for committing
murder of his wife and adppted daughter on the basis of C
circumstantial evidence - Sentenced to undergo rigorous
imprisonment for life - Affirmed by High Court - Correctness
of - Held: Incorrect - A finding of guilt cannot be based on a
presumption - No motive for committing the crime was
identified - No finding has been recorded by the Courts below D
as to the presence of accused at the place of occurrence - No
material produced by prosecution to show that any resistance
offered by the deceased when accused allegedly committed
the crime - Medical report does not conclusively show that
deceased suffered homicidal death - Deposition of witnesses E
including star witness reveals that there was no unusual
conduct noticed on the part of accused - Merely because
accused did not cry/weep on seeing the dead body of his wife
and daughter, cannot be made the basis for holding him liable
for committing the crime - No incriminating evidence linking F
accused in administration of poison to deceased has been
brought on record - Thus, circumstantial evidence leading to
guilt of accused for committing the murder of his wife and
daughter not established by prosecution - Hence, judgment
of conviction and sentence against accused cannot be G
sustained and set aside - Circumstantial evidence - Conviction
based upon.
Delay in lodging of FIR by husband - Adverse inference
- Held: Accused asked someone to inform police about the
M1 H
882 SUPREME COURT REPORTS [2008] 4 S.C.R.

A incident and when he did n.ot inform, then only the accused
-
~·
did so - Under the circumstances, no presumption of adverse
inference could be raised against the accused.
On the fateful· day, accused-husband, after returning
from Office knocked the door of his house, when no
B response received, he called his immediate neighbour,
PW-1, for help. He went inside the premises from backside
and found both his wife and daughter lying dead on
-.{ -
different beds. PW-1 also found dead bodies of both, wife
and daughter of the accused, lying on beds. He then went
c to the Police Station and lodged an FIR. During
investigation, a sniffer dog was brought into service by
the Police. It allegedly went close to the accused husband.
Police, after examining various witnesses, submitted
charge-sheet against the accused for committing the
D murders of his wife and daughter. Trial Court found him
guilty for committing the offence of murder of his wife and
daughter; convicted him u/s. 302 IPC and sentenced him
to undergo rigorous imprisonment for life. Appeal filed
thereagainst was dismissed by the High Court. Hence the
E present appeal.
Allowing the appeal, the Court
HELD: 1.1 The Trial Judge failed to analyse the
evidence of the prosecution witnesses in a proper and
F effective manner. Although opining that the accused had
no motive to kill his wife and the adopted daughter, the '.,£

effect thereof was not considered keeping in view the fact
that the prosecution rested its case only on circumstantial
evidence. The Trial Judge, although took notice of the
statements of PW13, a resident living about a furlong from
G
the house of the accused, that the spectacles of the
appellants were found lying on a book of the deceased
daughter of the appellant, drew no inference therefrom. )..__
He also did not make any attempt to determine the
relevance of the said evidence. This Court does not find
H
-· DINESH BORTHAKUR v. STATE OF ASSAM 883

the said evidence having any relevance to the prosecution A
case. (Para - 29) [893-8, C, D]
1.2 The Trial judge accepted that there was no
evidence brought on record to show that the accused was
_seen at the place of the occurrence of crime during the
8
period between 11.30 A.M. in the morning hours and at
about 4.00/5.00 P.M. in the afternoon, so as to enable him
to infer that the accused could forcibly administer poison
to the deceased or strangulate them or to do the both so
as to cause their deaths. He further recorded that PW6
admitted in his evidence that the nail scrapping taken from C
the two deceased did not correspond to the skin
scrapping taken from the body of the accused. Thus, there
was no evidence of any mark of struggle by and between
the two deceased with the accused. (Para - 30) [893-8, C]
D
2.1 The purported absence of any reaction on the
apart of the appellant in regard to the death of two
deceased was for all intent and purpose made the sole
. basis for his conviction by the Trial Judge of the offence.
(Para - 31) [893-G; 894-A] E
2.2 A finding of guilt cannot be based on a
presumption. Before arriving at an. inference that the
appellant has committed an offence, existence of materials
therefor ought to have been found. No motive for
committing the crime was identified which, in the facts F
and circumstances of the case, was relevant. How the
links in the chain of the circumstances led to only one
conclusion that the appellant and the appellant alone was
guilty of commission of the offence has not been spelt
out by the Trial Judge. (Para - 33) [894-E, F] G
2.3 The courts below did not record any finding on
the basis of the material brought on record by the
prosecution that the appellant was seen at the place of
occurrence of the crime. The least the pros_ecution, in this H
884 SUPREME COURT REPORTS [2008] 4 S.C.R.
.,
A behalf, could do was to examine the co-employees of the
appellant who had been working in his office to find out -f
as to when he had reached his office or whether he had
left his office at any time prior to 4.00 pm. No evidence
was also led to bring on record the distance between
B .the house of the appellant and his office. No witness
also deposed in regard to the mode of his _travelling.
(Para - 34) [894-F, G, H; 895-A]
2.4 The time lag between the appellant's calling PW1 -{"
for the first time and the second time was a few minutes.
c The pros~cution did not suggest nor any finding has been
arrived at that the offence could have been committed
during the said interval. (Para - 35) [895-8, C]
2.5 It is the admitted case of the prosecution that the
accused had asked PW1 to come and have a look. PW1
D
himself was uncertain as to whether the deceased were
already dead or not. The conduct of the appellant, so far
his initial reaction to the occurrence is concerned,
appears to be most natural as he suspected that
something was wrong but was unsure thereabout at the
E
same time. In any view of the matter, it does not give rise
to an inference. which is consistent with the hypothesis
of guilt. (Para - 36) [895-D, E]
2.6 PW6, in his evidence, in no uncertain terms,
F admitted that the scraping of nails taken from the two
deceased did not correspond to the scrapping of skin
taken from the body of the appellant. The prosecution also
did not bring on record any material to show that the
deceased had put up any resistance when the appellant
had allegedly tried to commit the crime. Medical evidence
G
brought on record also does not conclusively show that
the deceased wife had suffered a homicidal death as is
evident from the autopsy report. (Para -37) [895-F, G]
)
2.7 The mainstay of the prosecution case is the
H evidence of PW6, PW8, PW9 and PW13 who testified about
DINESH BORTHAKUR v. STAT-E OF ASSAM 885

..
....,....
)-- the sniffer dog's staying near the accused and the
reaction of the accused was not natural as he did not
A

exhibit his emotion or sadness despite the fact that a
shocking incident had occurred. The law in this behalf is
settled that while the services of a sniffer dog· may be
taken for the purpose of investigation, its faculties cannot 8
be taken as evidence for the purpose of establishing the
guilt of an accused. (Para - 38) [895-H; 896-A, G]
;
't Abdul Rajak Murtaja Dafedar vs. State of Maharashtra
(1969) 2 SCC 234; Gade Lakshmi Mangaraju alias Ramesh
vs. State of A.P (2001) 6 sec 205 - relied on. c
2.8 PW1 was considered to be the star witness by
the prosecution. He was in his house upto 11.30 am. It
can safely be inferred from his deposition that he had

..
come back to his residence much prior to the appellant.
D
He had not noticed any abnormality in the locality. Other
,.( witnesses who were the neighbours of the appellant and/
or the shop owners who have their shops on the other
side of the road were also not aware of any incident before
the appellant reached his residence. PW1 and PW2, in their
deposition, did not notice any unusual conduct on the E
part of the appellant or the deceased on that day. This
Court failed to see any abnormality in the initial reaction
of the appellant. (Paras -40 & 41) [897-A, 8, E]
Rana Partap and others vs. State of Haryana (1983) 3 F
,._ 7'
sec 327; Marwadi Kishor Parmanand and Another VS. State
of Gujarat (1994) 4 SCC 549 and State of UP vs. Devendra
Singh (2004) 10 SCC 616 - relied on.
2.9 No hard and fast rule having any universal
application with regard to the reaction of a person in a G
given circumstance can, thus, be laid down. One person
'-.
may lose equilibrium and balance of mind, but, another
"".' ~ may remain a silent spectator till he is able to reconcile
himself and then react in his own way. Thus, merely
because the appellant did not cry or weep on witnessing H
886 SUPREME COURT REPORTS [2008] 4 S.C.R.

JI

~
A the dead bodies of his wife and daughter, cannot be --1
~~

made the basis for informing his guilt. (Paras - 43 & 44)
[898-E, F, G] ·
2.10 The only unusual thing noticed by PW1, PW2
and PW3 was the .abnormal crying of the deceased
B
daughter of the accused in the morning for a .long time.
Something, therefore, must have. happened between the
mother and the daughter. It is difficult to believe that a six --1
...
year old girl would cry so loudly and that too for such a ;-
long span of time so as to draw the attention of the
c neighbours only because the mother was giving her a ~

bath. Something, therefore, must have happened which
the deceased was trying to hide. (Para - 40) (897-C, D, E]
3.1 If the theory that he cou.ld h.ave committed the
D murder within a couple of minutes is ruled qut, this Court
failed to see on what basis even _a suspicion could have ).._ I
been raised that the appellanthad committed the~rime .. lt ~
is not the case of the prosecuti9n that the deceased were
last seen in the company Of the appellant. Nobody had
E seen him going inside his house or coming out at the
time of or near about the commission of the crime. ,_
I
(Para - 45) (898-G, H; 899-A] l
~
3.2 Ordinarily, an accused person after commission
J
of such a ghastly crime would run away from the scene
F of occurrence but he did not do so. Even if he was to
pretend that he did not know about the said occurrence,
.. I
{

he could have stayed back in his office waiting for the
call of his neighbours about the death of his wife and
!
daughter. The conduct or reaction of the accused (or
G lack of it) by itself, thus, cannot be a ground for arriving
at a conclusion that he is guilty of commission of crime. ,.
I

Formation of another opinion is also possible. (Para - ;. t
45 and 46) [899-B, C, D]
4. The prosecution made an attempt to show that the
H
DINESH BORTHAKUR v. STATE OF ASSAM 887

deaths of the victims were caused by administration of A
~ )'--
poison and/or strangulation. The bottle containing
pesticide was found in the wash basin along with a glass
inside the house. There is nothing on record to show that
the appellant had purchased pesticide or brought it home.
No fingerprint of the appellant was taken to show that it B
was he who had used the bottle or the glass for the said
purpose. No incriminating evidence linking the appellant
in regard to administration of poison/pesticide has been
~ )-
brought on record. (Para - 50) [900-B, CJ
Sharad Birdhichand Sarda vs. State of Maharashtra c
(1984) 4 sec 116 - relied on.
5.1 First Information Report might have been lodged
by the appellant only when the police arrived at the scene
of occurrence. The Investigating Officer came to the place
D
of occurrence at about 4.45 pm. PW1 categorically stated
that he had asked someone to inform the police. When
--4
he did not comply therewith, then only he did so. If, in the
<
aforementioned situation, the appellant had not informed
the officer-in-charge of the police station, no presumption
of adverse inference could be raised against him. There E
was no delay on the part of the appellant in informing the
police, particularly, when he had informed PW1 who, in
turn, informed the police. (Para - 52) [901-F, G, HJ
5.2 The Trial Judge has also relied.upon the evidence
F
"'\ of PW10, the owner of a Pan shop, who testified that the
appellant had not visited the Pan shop on that day. His
evidence is not at all reliable. (Para - 53) [902-AJ
5.3 Circumstantial evidence leading to the guilt of the
appellant have not been established by the prosecution, G
the judgment of the conviction and sentence, therefore,
cannot be sustained. They are set aside accordingly.
(Para - 54) [902-B, CJ
"""-
""" CRIMINAL APPELLATE JURISDICTION : Criminal
H
888 SUPREME COURT REPORTS [2008] 4 S.C.R.

A Appeal No. 687 of 2007. --( .....
From the final Judgment and Order dated 26.04.2006 of
the Gauhati High Court, Gauhati in CrL Appeal No. 345 cf 2003.

Meenakshi Arora for the Appellant.
B
Momota and Ranjan Mazumdar (for M/s. Corporate Law
Group) for the Respondent.

The Judgment of the Court was delivered by '{ ....
S.B. SINHA, J. 1. Appellant was convicted and sentenced
c to undergo rigorous imprisonment for life on the charge of murder
of his wife Mala Borthakur and adopted daughter Munni @
Mayuri. He was residing with the first deceased at Sibnath
Bhattacharya Lane, Ch iring Chapari in the town of Dibrugarh.

D 2. He is an Engineer by profession. At about 4.00/5.00
p.m. on 25.5.1999, when he returned from his place of work, he
allegedly knocked the main door of the house. There was no ~
/

response. He called his immediate neighbour Pranab Kumar
Borah (PW1 ).
E 3. PW1, whose house is separated only by a wall, opened
the window and asked him as to what had happened. To that
the appellant allegedly replied "they are not opening the door".
He responded thereto saying that "they are perhaps sleeping".
He went to the rear side of the premises. He found the same
F open. •;

~ '....
4. He was heard shouting loudly calling the name of his
daughter Munni and wife Mala several times. He found his wife
and daughter lying dead on separate beds. After a few minutes, \

Appellant called PW1 again shouting "Boruah! Boruah!". On his
G query as to what had happened, he asked him to come and
have a look. PW1 found the wife of the deceased lying on the
bed with her face down. He also saw the lower part of her legs .:
).
looking pale. His attention was also drawn by the appellant to
the corpse of Munni. The leg of the girl was shaken by the
H appellant stating, "look, she is also not moving". Appellant
DINESH BORTHAKUR v. STATE OF ASSAM 889
[S.B. SINHA, J.]
...._ '}-
remarked, "Mala should not have done this". A
5. PW1, thereafter, asked somebody (whose name has
not been disclosed) to inform the police. As the said request
was not complied, he himself informed the officer-in-charge of
the police station about the incident.
B
6. For the purpose of investigation, a sniffer dog was
brought into service. The dog was taken near the dead bodies.
)' ). lt allegedly went close to the appellant only and no one else
when he was inside the house.
7. PW1, in his deposition before th~ Court opined 'that c
even though such a shocking incident had taken place, Borthakur
did not show any reaction as he should have'. He, however, in
his cross-examination stated 'having seen the occurrence, I had
lost my senses. He too might have been out of his mind to some
extent. Reactions vary with people. As the deceased were D
accused person's wife and daughter respectively, his reaction
should have been more acute. Reaction of the accused person
that I had noticed might have been for the unexpected turn of
event. He was repeatedly going near the dead body of his
daughter but not that of his wife.' E
8. Apart from PW1, his wife Purnima Devi examined herself
as PW-2. According to her, at about 10.10A.M. when she had
been going to her office, the daughter of the accused, Munni,
had been crying. On being asked the reason therefor, Mala had
replied that Munni had been crying because she had been F
"" giving her a bath.

9. PW3 Binu Bezborauah was also a neighbour of the
appellant. She was also a witness to the unusual crying of the
girl.
G
10. PW4, Sri Manash Borpujari is an employee of the
Education Department. He is the brother-in-law of the appellant.
11. According to him, when the appellant having been
asked at around 3.30/4.00 PM as to what had happened, he H
890 SUPREME COURT REPORTS [2008] 4 S.C.R.

A replied "she killed Munni, she killed herself too". Reaction of ~ .4,. •.

PW4 upon seeing the dead body, however, was that she had
been murdered. He accepted that the marriage between the
deceased Mala and the appellant took place 16-17 years prior
to his date of deposition and, apparently they had good relations.
B According to him, he had not witnessed any quarrel between
them.
12. PW5, Dr. R.Chaliha conducted the post mortem
-f ""'
examination.

c 13. PW6, is Rubul Sharma. He allegedly had seen a
skipping rope around the neck of Mala as also a gold chain. He
also allegedly noticed blood dipping out from the corners of her
lips. He also found black marks around the neck of Munni.
14. The Investigating Officer also found a bottle of poison.
D
15. According to PW6, sheets of the bed on which the dead
)..
bodies were found, had neatly been spread. He also noticed
arrival of the police dog. According to him, after having smelt
the dead bodies, the dog did not go out of the room but stayed
inside it near and about the appellant.
E
16. PW7, Sri Dhiraj Sarmah, was a neighbour. He came
to the place of occurrence. According to him, Manas Barpujari
came crying and told him "Someone has killed Bubli baiden
(elder sister) and her daughter Munni and had left their dead
~
bodies on the bed."
F ')' ....
17. PW8 is Sri Manik Barkakoty. He was only a witness in
regard to the conduct and/or reaction of the appellant. Evidence
of PW9, Sri Chapan Sarmah, was confined to the scene of the
bed rooms.
G
18. PW1 O, Sri Bijoy Prasad is the owner of a pan shop.
According to him the accused did not buy any pan from his shop
on the date of incident, i.e., 25.5.1999. >-
19. PW11, Sri Ganesh Borthakur is the· brother of the
H accused. He, having been informed, visited the place of
I

e
DINESH BORTHAKUR v. STATE OF ASSAM 891
[S.B. SINHA, J.]

.... " occurrence. His evidence is not very material. A

I
20. PW12 is Smt. Manjuri Borthakur. According to her, she
---<
found the accused sobbing and moving hither and thither in the
room in which his daughter had been lying dead.
21. PW13, Sri An up Baruah was a resident of a place which B
was at a distance of four furlongs from the appellant's house.
Somebody informed him about the said deaths whereupon he
,.;.
r went there.
22. PW14, Sri Anupma Dutta also deposed to the same
effect. PW15, Sri Samudra Baishya is a Chemical Engineer. c
According to him the bottle contained organophosphorus
pesticide which is a kind of insecticide used in vegetable
cultivations.
23. PW16, Sri Kusheswar Borah was the officer in-charge
.o
of Lakhimpur, Police Station. He is the investigating officer in
...{ the case. He admitted that PW1 Pranpb Baruah had not stated
before him that 'Mala should not have done this nor did he inform
that the accused had frequently gone near his daughter but not
near his wife'. Similarly, PW4 Manas Barpujari did not state
before him about the alleged remark of the appellant that E
'deceased Mala had killed Munni and killed herself too and that
he had seen scratching marks on the back of the appellant'.
PW6 Rubul Sharmah did not inform him that he had seen blood
coming out of Mala's mouth and that some milk ljke things had
-<( been found in the glass at the scene. Similarly, PW9 Chandan F
Sharmah did not state before him that that Mala and Munni had
been found lying on the same bed.

24. Only on the basis of the aforementioned materials
brought on records by the prosecution, a judgment of conviction
against the appellant was recorded by the learned Trial judge. G
The High Court dismissed tlie appeal preferred thereagainst.
~ 25. The fact that Munni suffered a homicidal death is not in
dispute. However, there appears to be some dispute as to
whether death of Mala was homicidal or suicidal in nature. The H
'892 SUPREME COURT REPORTS [2008] 4 S.C.R.

-< ....
A dead bodies of both Mala and Munni were having ligature marks·
but the doctor opined that only Munni died of asphyxia. No such
opinion was rendered in respect of the death of Mala. However, )"...c

the result of the chemical examination showed presence of
organophosphorus pesticide, a poison.
B 26. In regard to death of Mala, PW5, in his deposition,
stated :
"Regarding Mala Borthakur, in my post mortem report, I "-
-f
have not mentioned word "homicide". Report is/was silent
c about homicide ........
In the instant· case, my opinion is/was silent regarding
Mala Borthkur whether it was suicidal or homicidal."
27. What has been noticed hereinbefore C'learly
demonstrates that the prosecution led only circumstantial
D
evidence before the learned Trial Judge. The learned Trial Judge,
apart from the· statements made by the prosecution witnesses
in regard to the conduct of the appellant,· also took into
consideration the fact that he had not informed the police in
regard to the death of 'his own wife and adopted daughter'. It
)..

-
E
was furthermore opined that the appellant had failed to establish
his own innocence. An adverse inference was drawn against
the accused in regard to his failure to inform about the death of
his wife and adopted daughter till the arrival of the police party
to his house. ,1--·-

F >

The learned Trial Judge also noticed that the sniffer dog )r t-
had gone near the appellant only and nobody else when he had
been inside the house. According to the learned Trial Judge, ',
the behaviour of the accused was abnormal as he had neither
wept nor cried nor shown any sign of shock or being upset at
G
the scene of death of 'his own wife and adopted daughter'.
Emphasis was also laid on the fact that when the appellant was
being interrogated by the Investigating Officer, allegedly, he had )..
told him that he was feeling hungry and had bought some food
from a line hotel.
H
DINESH BORTHAKUR v. STATE OF ASSAM 893
[S.S. SINHA, J.]

.....
{
~
28. In his judgment, the learned Trial Judge referred to the
statements of the appellant in his examination under Section
A

313 of the Code of Criminal Procedure in great details.
Statements of PW1 was also quoted in extenso.
29. The learned Trial Judge, however, in our opinion, failed
to analyse the evidence of the prosecution witnesses in a proper B
and effective manner. Although opining that he had no motive to
kill his wife and the adopted daughter, the effect thereof was not
j
considered keeping in view the fact that the prosecution rested
"' its case only on circumstantial evidence. The learned Trial Judge,
although took notice of the statements of PW13 that the c
spectacles of the appellants were found lying on a book of Munni,
drew no inference therefrom. He also did not make any attempt
to determine the relevance of the said evidence. We, however,
do not find the said evidence having any relevance to the
prosecution case. The learned Trial Judge furthermore placed D
on record that according to PW13, marks of blood on the nails
_...
of the deceased having been noticed, the Investigating Officer
got the shirt removed from the body of the appellant and found
two nail marks on his back.
30. The learned Trial judge accepted that there was no E
evidence brought on record to show that the accused was seen
at the place of the occurrence of crime during the period
between 11.30 A.M. in the morning hours and at about 4.00/
5.00 P.M. in the afternoon, so as to enable it to infer that he
could forcibly administer poison to the deceased or strangulate F
~
them or to do the both so as to cause their deaths. He further
. recorded that PW6 admitted in his evidence that the nail
scrapping taken from the two deceased did not correspond to
the skin scrapping taken from the body of the accused. Thus,
there was no evidence of any mark of struggle by and between G
the two deceased with the accused.

31. The purported absence of any reaction on the apart of
the appellant in regard to the death of two deceased was for all
intent and purpose made the sole basis for his conviction by
H
894 SUPREME COURT REPORTS [2008]4 S.C.R.

A the learned Trial Judge of the offence. It was concluded : ~
~
~
"So, taking the gamut of all the circumstances analyzed in
para No.19, 24, 25, 31, 33, 37, 38, 43, 46, 47 and 54
above in particulars and the case-laws mentioned in para
no. 55 above in entirety, I am very much persuaded to
B presume that it was the present accused Dinesh
Borthakur, and none else who had intentionally caused
the death of his wife Mala Borthakur and his adopted
daughter in a cold blooded manner to eliminate them .., "
from this earth with some motive best known to himself.
c l'he evidence on record of this instant ca,se relating to
circumstances and conduct of the accused sufficiently .and
clearly established all the links in the chain of circumstances
leading to the guilt of present accused and no reasonable
ground was left for consideration consistent with his
D innocence."
(Emphasis supplied)
)._
32. Judgment of the High Court with respect is no different.
33. A finding of guilt cannot be .based on a presumption.
E Before. arriving at an inference that the appellant has committed
'

an offence, ex.istence of materials therefor ought to have been
found. No motive for committing the crime was identified which,
in the facts and circumstances of the case, was relevant. How
the links in the· chain of the circumstances led to only one
F conclysion that the appellant and the appellant alone was guilty
of commission of the offence has not been spelt out by the >
learned Trial Judge.
34. The courts below did not record any finding on the basis
of any material brought on record by the prosecution that the
G appellant was seen at the place of occurrence of crime between
11.30 am to 4/5.00 pm. The least the prosecution, in this behalf,
could do was to examine the co-employees of the appellant
who had been working in his office to find out as to when he had
reached his office or whether he had left his office at any time
H prior to 4.00 pm. No evidence was also led to bring on record
DINESH BORTHAKUR v. STATE OF ASSAM 895
[S.S. SINHA, J.]
Ii. r the distance between the house of the appellant and his office. A

. No witness also deposed in regard to the mode of his travelling.
He had been seen going out of his house for his place of work
by the prosecution witnesses. PW1 found him calling the name
of his wife and the adopted daughter' for opening of the main
door. He went to the backside of the premises only when PW1 B
expressed his opinion that they might have been sleeping.
35. The time lag between the appellant's calling PW1 for
J- r the first time and the second time was a few minutes. The
prosecution did not suggest nor any finding has been arrived at
that the offence could have been committed during the said c
interval.
36. PW1 on seeing the deceased Mala lying on the bed
gathered an impression that the matter was not normal. Further,
PW1 in his evidence states that the accused shook the leg of
D
the child 'Munni' stating that she was also not moving. It is the
"' admitted case of the prosecution that the accused had asked
PW1 to come and have a look PW1 himself was uncertain as
to whether Mala and child Munni were already dead or not. The
conduct of the appellant, so far his initial reaction to the
occurrence is concerned, appears to be most natural as he E
suspected that something was wrong but was unsure thereabout
at the same time. In any view of the matter, it does not give rise
to an inference which is consistent with the hypothesis of guilt.

...... 37. At this juncture, we may place on record that PW6, in F
his evidence, in no uncertain terms, admitted that the scraping
of nails taken from the two deceased did not correspond to the
scrapping of skin taken from the body of the appellant. The
prosecution, therefore, did not bring on record any material to
show that the deceased had put up any resistance when the
G
appellant had allegedly tried to commit the crime. Medical
evidence brought on record also does not conclusively show
that Mala Borthakur suffered a homicidal death as is evident
from the autopsy report, which we have noticed hereinbefore.
38. The mainstay of the prosecution case is the evidence H
896 SUPREME COURT REPORTS [2008]4 S.C.R.

_...
A of PW6, PW8, PW9 and PW13 who testified about the sniffer '"1'
dog's staying near the accused and the reaction of the accused
was not natural as he did not exhibit his emotion or sadness
despite the fact that a shocking incident had occurred.
So far as the evidence relating to the reaction of sniffer
B. dog is concerned, this Court in Abdul Rajak Murtaja Dafedar
v. State of Maharashtra [(1969 (2) SCC 234 stated the Jaw,
thus:
-1 .
"-

"There are three objections which are usually advanced
c against reception of the evidence of dog tracking. First
since it is manifestthat the dog cannot go into the box and
give his evidence on oath and consequently submit himself
to cross-examination, the dog's human companion must
go into the box and the report the dog's evidence and this
is clearly herarsay. Secondly, there is a feeling that in
D
criminal cases the life and liberty of a human being should
not be dependent on canine inference ....... " )...
~

Yet again in Gade Lakshmi Mangaraju alias Ramesh v.
State of A.P [2001 (6) SCC 205], this Court opined :
E "There are inherent fr~ilties in the evidence based on sniffer
or tracker dog. The possibility of an error on the part of the
dog or its master is the first among them ........... The
possibility of a misrepresentation or a wrong inference
from the behaviour of the dog could not be ruled out. Last,
F but not the least, is the fact that from scientific point of >-
view, there is little knowledge and much uncertainty as to
the precise faculties which enable police dogs to track
and identify criminals .......... Investigation exercises can
afford to make attempts or forays with the help of canine
G faculties but judicial exercise can ill afford them."
39. The law in this behalf, therefore, is settled that whil.e
the services of a sniffer dog may be taken for the purpose of )...
investigation, its faculties cannot be taken as evidence for the
purpose of establishing the guilt of an accused.
H
I

e DINESH BORTHAKUR v. STATE OF ASSAM 897
[S.B. SINHA, J.]

40. Let us now consider another aspect of the matter viz., A
the so called abnormal conduct on the part of the appellant. PW1
was considered to be the star witness by the prosecution. He
was in his house upto 11.30 am. It can safely be inferred from
his deposition that he had come back to his residence much
prior to the appellant. He had not noticed any abnormality in the s
locality. Other witnesses who were the neighbours of the
appellant and/or the shop owners who have their shops on the
other side of the road were also not aware of any incident before
the appellant reached his residence.
PW1 and PW2, in their deposition, did not notice any C
unusual conduct on the part of the appellant or the deceased
Mala on that day.
The only unusual thing noticed by PW1, PW2 and PW3
was the abnormal crying of Munni in the morning for a long time.
0
Something, therefore, must have happened between the mother
~ and the daughter. It is difficult to believe that a six year old girl
would cry so loudly and that too for such a long span of time so
as to draw the attention of the neighbours only because the
mother was giving her a bath. Something, therefore, must have
happened which the deceased was trying to hide. E
41. We fail to see any abnormality in the initial reaction of
the appellant. He knocked at the door vigorously. He called the
deceased in a loud voice which attracted the attention of PW1.
On a query made by the latter, he had stated that they had not F
"°" been opening the door and only when PW1 opined that they
must have been sleeping, he went to the rear side of the
premises and discovered the dead bodies lying on the bed and
again without any loss of time called PW1.
PW1, in his cross-examination, admitted that reactions G
vary from person to person. Absence of any exhibition of
sadness on the part of the appellant,. according to PW1, was
not the conduct of a normal human being. Manjuri Borthakur's
evidence, however, is otherwise.
H
898 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 42. We may notice that this Court in Rana Partap and
others VS. State of Haryana reported in [1983 (3) sec 327]
opined:
"Yet another reason given by the learned Sessions Judge
to doubt the presence of the witnesses was that their
conduct in not going to the rescue of the deceased when
he was in the clutches of the assailants was unnatural. We
must say that the comment is most unreal. Every pe.rson
who witnesses a murder reacts in his own way. Some are
stunned, become speechless and stand rooted to the spot.
c Some become hysteric and start wailing. Some start
shouting for help. Others run away to keep themselves as
far removed from the spot as possible. Yet others rush to
the rescue of the victim, even going to the extent of counter-
attacking the assailants. Every one reacts in his own
D , special way. There is no set rule of natural reaction. To
discard the evidence of a witness on the ground that he
did not react in any particular manner is to appreciate
evidence in a wholly unrealistic and unimaginative way."
{See also Marwadi Kishor Parmanand and Another. Vs.
E State of Gujarat [1994(4)SCC 549 ] and State of UP Vs.
Devendra Singh [2004 (10) SCC 616)]}.
43. No hard and fast rule having· any universal application
with regard to the reaction of a person in a given circumstance
F can, thus, be laid down. One person may lose· equilibrium and ;
balance of mind, but, another may remain a silent spectator till >- i.

he is able to reconcile himself and then react in his own way.
44. Thus, merely because the appellant did not cry or weep
on witnessing the dead bodies of his wife and daughter, cannot
G be made the basis for informing his guilt.
45. If he had gone to his office and come tlack therefrom
between 11.30 am ti.II 4/5.00 pm, the matter might have been
different. If the theory that he could have committed the murder
H within a ·couple of minutes is ruled out, we fail to see on what
I

e
DIN ESH BORTHAKUR v. STATE OF ASSAM. 899
[S.S. SINHA, J.]

basis even a suspicion could have been raised that the appellant ,
had committed the crime. It is not the case of the prosecution
that the deceased were last seen in the company of the
appellant. Nobody had seen him going inside his house or
coming out at the time of or near about the commission of the
crime. The matter might have been different if some evidence B
had been introduced to suggest that the offence was committed
sometime between 11.30 am and 4/5.00 pm. Ordinarily, an
accused person after commission of such a ghastly crime would
run away from the scene of occurrence but he did not do so.
Even if he was to pretend that he did not know about the said c
occurrence, he could have stayed back in his office waiting for
the call of his neighbours about the death of his wife and
daughter.
46. His conduct or reaction (or lack of it) by itself; thus,
cannot be a ground for arriving at a conclusion that he is guilty D
. of commission of crime. Formation of another opinion is also
possible.
It may or may not be that the appellant, in presence of PW1,
told "Mala should not have done that". The same by itself does E
not take us anywhere. Assuming that he did so, although
according to the Investigating Officer, no such statement was
made by PW1 before him, the same merely indicated that
something had happened between the mother and the daughter
in the morning which was not to the liking of the appellant.
F
47. We are surprised to notice the introduction of a story
by the prosecution through PW4. Even if the conduct of the
appellant demonstrated that he had been feeling sorry for the
death of his daughter and not for his wife, it does not take us
any further to arrive at one conclusion or the other.
G
48. More surprising is the introduction of the purported
incriminating circumstances through some of the prosecution
witnesses in regard to the location of the dead body and the
manner in which things were discovered by some of the
prosecution witnesses, although neither the Investigating Officer H
900 SUPREME COURT REPORTS [2008] 4 S.C.R.

A had noticed the same nor his attention was drawn thereto by
the said witnesses or others.
49. We have noticed heretobefore that the prosecution
witnesses did not make any statement in regard to the purported
reaction of the appellant before the Investigating Officer.
B
50. The prosecution made an attempt to show that the
deaths of the victims were caused by administration of poison
and/or strangulation. The bottle containing pesticide was found
;'l the wash basin along with a. glass inside the house. There is
c nothing on record to show that the appellant had purchased
pesticide or brought it home. No fingerprint of the appellant was
taken to show that it was he who had used the bottle or the
glass for the said purpose. No incriminating evidence linking
the appellant in regard to administration of poison/pesticide has
been brought on record.
0
51. In Sharad Birdhichand Sarda v. State of Maharashtra
[(1984) 4 SCC 116], this Court opined that before arriving at
>- .
~

'
the finding as regards the guilt of the appellant, the following
circumstances must be established:
e-
~
E (i) the circumstances from which the conclusion of guilt
is to be drawn should be fully established;
I
(ii) the facts so established should be consistent only !
with the hypothesis of the guilt of the accused and
F should not be explainable on any other hypothesis
except that accused is guilty;
(iii) the circumstances should be conclusive nature;
(iv) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
G
consistent with innocence of the accused on
preponderance of probability."
In that case, it was categorically held that the prosecution
in a case of commission of murder by poisoning must bring in
H record some evidence linking the accused therewith, stating :
DINESH BORTHAKUR v. STATE OF ASSAM 901
(S.B. SINHA, J.]

"In the instant case, while two ingredients have been proved A
-. ,.. but two have not. In the first place, it has no doubt been
proved that Manju died of potassium cyanide and
secondly, it has also been prov~d that there was an
opportunity to administer the poison. It has, however, not
been proved by any evidence that the appellant had the - B
poison in his possession."
It was furthermore observed :
f )
"2. That, at any rate, the evidence clearly shows that two
views are possible - one pointing to the guilt of the c
accused and the other leading to his innocence. It
may be very likely that the appellant may have
administered the poison (potassium Cyanide) to
Manju but at the same time a fair possibility that she
herself committed suicide cannot be safely excluded
0
or eliminated. Hence, on this ground alone the
appellant is entitled to the benefit of doubt resulting
in his acquittal.
3. The prosecution has miserably failed to prove one of
the most essential ingredients of a case of death E
caused by administration of poison, i.e., possession
of poison with the accused (either by direct or
circumstantial evidence) and on this ground alone
the prosecution must fail."
52. First Information Report might have been lodged by F
the appellant only when the police arrived at the scene of
occurrence. The Investigating Officer came to the place of
occurrence at about 4.45 pm. PW1 categorically stated that he
had asked someone to inform the police. When he did not
comply therewith, then only he did so. If, in the aforementioned G
situation, the appellant had not informed the officer-in-charge
of the police station, no presumption of adverse inference could
be raised against ~im. There was no delay on the part of the
appellant in informing the police, particularly, when he had
informed PW1 wh9, in turn, informed the police. H
902 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 53. The learned Trial Judge has also relied upon the
evidence of PW10, the owner of a Pan shop, who testified that
the appellant had not visited the Pan shop on that day. His
evidence, in our opinion, is not at all.reliable. He admitted in his
cross-examination that in the forenoon, his brother used to sit
B at the. shop and, thus, his inference that the appellant used to
take Pan regularly cannot be trustworthy.
54. We, therefore, are of the firm view that circumstantial
evidence leading to the guilt of the appellant have not been
estab.lished by the prosecution, the judgment of the conviction
c and sentence, therefore·, cannot b~ sustained. They are set aside
accordingly. We can only record 01,ir c;Hstress that even in a case
of this nature, appellant had to remain in custody for a period of
four years.
54. The appeal 1s allowed. The appellant is directed to be
0
set at liberty forthwith ·unless wanted in connection with any other
case.
S.K.S. Appeal allowed.
.