HARVINDER SINGH @ BACHHUversusTHE STATE OF HIMACHAL PRADESH

                 [2023] 13 S.C.R. 1157 : 2023 INSC 907



                             CASE DETAILS

                  HARVINDER SINGH @ BACHHU
                                      v.
               THE STATE OF HIMACHAL PRADESH
                 (Criminal Appeal Nos. 266-267 of 2015)
                           OCTOBER 13, 2023
         [M. M. SUNDRESH AND J. B. PARDIWALA, JJ.]
                              HEADNOTES
      Issue for consideration: Whether the High Court was justified in
setting aside the order of acquittal and convicting the appellant for murder
and attempt to rape relying on the testimony of the prosecution witness
despite contradictions, only because he was educated and a god fearing
person.
     Penal Code, 1860 – ss. 302, 376, 511, 454, 380 r/w s.34 – Murder
and attempt to rape – High Court convicted the appellant for murder
and attempt to rape, setting aside the order of acquittal by the trial
court – Correctness:
      Held: Trial court gave substantial reasons for arriving at its conclusion
– However, the High Court was persuaded by the homicidal death of the
deceased while ignoring multiple findings rendered by the trial court – High
Court after holding that a homicide had occurred, blindly placed reliance
upon the evidence of the informant and misconstrued the concept of
reputation and blindly believed his evidence – Furthermore, the statement
of one of the witness that there was no prior enmity – Also non-availability
of the fingerprint report and non-examination of the witnesses though the
witnesses were available – Prosecution failed to prove the charges beyond
reasonable doubt, thus, the appellant entitled to the benefit of doubt –
Impugned order passed by the High Court set aside and that of the trial
court is restored. [Para 26, 28-29, 31]
      Evidence Act ,1872 – s.3 – Fact – Reputation, forming part of
facts – Connectivity between reputation and character – Evidentiary
value of person’s reputation:
                                1157
1158         SUPREME COURT REPORTS                       [2023] 13 S.C.R.


      Held: Reputation is indeed a fact – Reputation has to be seen from
the point of view of an identifiable group while character is what a person
really is – Character is to be formed while reputation is to be acquired
– Character may lead to formation of one’s reputation – Character and
reputation do have an element of interconnectivity but both are distinct
and different – Reputation thus forms part of internal facts which arise
through thoughts and feelings such as love, anger, fear, hatred and
intention etc and thus, it is required to be proved in the form of opinion
of persons who form it accordingly – When reputation is to be taken as
a relevant fact, its evidentiary value becomes restrictive and limited – It
is indeed a weak piece of evidence when becomes relatable to a fact in
issue – Court cannot declare the reputation of a person based upon its
own opinion merely because a person is educated and said to be God-
fearing, that by itself will not create a positive reputation – Courts are
not expected to get carried away by the mere background of a person
especially when his conduct, being a relevant fact, creates serious doubt
– Conduct of a witness is a relevant fact to decide, determine and prove
the reputation of a witness. [Para 16-18]
       Evidence – Circumstantial Evidence – Reliance upon:
      Held: One has to be circumspect and cautious while undertaking
the exercise of linking the evidence available – Courts should not lose
sight of the fact that such evidence should unerringly lead and point out
the accused alone, of course, on the facts of each case. [Para 22]
       Evidence – Double Presumption – Presumption of innocence:
      Held: When the view of the trial court, which had the benefit of
seeing the demeanour of the witnesses, is both a possible and plausible
one, it shall not be replaced by yet another one – Presumption of
innocence in favour of the accused gets strengthened by the decision of
the trial court when he gets an order of acquittal. [Para 23]
       Witnesses – Material witnesses – Non-examination of:
     Held: Non-examination of a witness, though material, by itself
would not vitiate the trial – However, when facts are so glaring and
with the witnesses available, particularly when they are likely to
give a different story, the Court shall take adequate note of it – When
                 HARVINDER SINGH @ BACHHU v.                         1159
                THE STATE OF HIMACHAL PRADESH


a circumstance has been brought to the notice of the Court by the
defense and the Court is convinced that a prosecution witness has been
deliberately withheld, as it in all probability would destroy its version,
it has to take adverse notice – Anything contrary would be an affront to
the concept of fair play. [Para 24]
     Evidence – Effect of absconding:
      Held: Subsequent conduct would be a relevant fact u/s. 8 of the
Evidence Act - However, such a fact has to be proved – Mere absconding
by itself cannot constitute a sole factor to convict a person because an
accused may abscond as he might fear an illegal arrest. [Para 25]

       LIST OF CITATIONS AND OTHER REFERENCES

      Lahu Kamlakar Patil And Another v. State of Maharashtra (2013)
6 SCC 417 : [2012] 9 SCR 1173; Narendrasinh Keshubhai Zala v. State
of Gujarat 2023 (4) SCALE 478; Rajesh Yadav And Another v. State of
Uttar Pradesh (2022) 12 SCC 200; Sharad Birdhichand Sarda v. State
of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; Jafarudheen and
Others v. State of Kerala (2022) 8 SCC 440; Takhaji Hiraji v. Thakore
Kubersing Chamansing (2001) 6 SCC 145; Durga Burman Roy v. State
of Sikkim (2014) 13 SCC 35 : [2014] 8 SCR 311 – referred to.
     R. v. Hodge (1838) 2 Lew 227 – referred to.

      OTHER CASE DETAILS INCLUDING IMPUGNED
             ORDER AND APPEARANCES

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
266-267 of 2015.
     From the Judgment and Order dated 27.06.2014 and 11.07.2014
of the High Court of Himachal Pradesh at Shimla in Criminal Appeal
No. 411 of 2007.
     Appearances:
     Mansoor Ali, Adv. for the Appellant.
     Rishi Malhotra, Jaydip Patil, Advs. for the Respondent.
1160         SUPREME COURT REPORTS                         [2023] 13 S.C.R.



        JUDGMENT / ORDER OF THE SUPREME COURT
                               JUDGMENT
       M. M. SUNDRESH, J.
      1. Conviction rendered for life imprisonment by the Division Bench
of the High Court of Himachal Pradesh, by setting at naught the order of
acquittal rendered by the Additional Sessions Judge (Presiding Officer), Fast
Track Court, Solan, Himachal Pradesh, is under challenge in these appeals.
       BRIEF FACTS
      2. The appellant, along with the co-accused (since deceased), was
charged under Sections 302, 376, 511, 454, 380 read with Section 34 of the
Indian Penal Code, 1860 (hereinafter referred to as “IPC”). The case of the
prosecution is that PW1 while making a visit to his cow-shed on 17.06.2003
at about 3.15 pm heard the cries of the deceased frantically asking him
for help stating “Mama ji Bachao”. He went to the house of the deceased,
and called out the name of her husband (PW5) but received no response.
Thereafter, he heard the hushed voices of the accused, two in number. He
then saw both of them at the main gate. Accused No. 1 was found with blood
stains on his shirt while smelling of alcohol. The accused threatened him
with dire consequences and made an attempt to grab him. After extricating
himself from the accused, he ran towards his house. PW1 informed one
Chandrawati about the incident, who in turn advised him to wait till his wife
joins. It was preceded by an enquiry with the mother-in-law of the deceased.
      3. After the advent of PW2, his wife, he, along with her and Chandrawati
made a visit to the house of the deceased. They saw two children of the
deceased who were studying in 5th and 7th standards respectively, at the
house. On inquiry they informed that their mother was sleeping. PW1 and
PW2, along with Chandrawati, entered the room and saw the deceased in
a pool of blood, half-naked. PW2 sent telephonic information to the police
station, followed by the registration of the first information report at about
6.30 pm at the instance of PW1.
     4. The first information report was sent after about 5 hours, despite the
office of the Magistrate being very near to the police station. The inquest was
done on the same day. Of the two witnesses who signed the inquest report,
              HARVINDER SINGH @ BACHHU v.             1161
    THE STATE OF HIMACHAL PRADESH [M. M. SUNDRESH, J.]


one has not been examined. It was found that certain articles including gold
jewels were missing while liquor bottles were recovered.
     5. Though, fingerprints were lifted and sent to the expert, there was no
report as it appears that there was no sufficient indication of the availability
of adequate marks.
      6. A charge-sheet was filed on 14.05.2004, primarily placing reliance
upon the statement of PW1, who was incidentally a literate and presumably
a God-fearing man. The children of the deceased gave their statement under
Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred
to as “CrPC”) but they, along with scores of other witnesses, though, not
seen the occurrence, have not been examined.
      7. Both the accused were found absconding and curiously they have
been arrested on the same day and at the same time – 16.01.2006, after
they were declared as proclaimed offenders on 10.09.2003. Recovery of
the stolen articles was made, inclusive of gold jewels, from the custody of
PW6, a lady from Tibet, with whom they were allegedly pledged, though
the prosecution was not very clear as to whether they were sold or pledged.
      8. A supplementary charge-sheet was filed on 01.04.2006, slightly
modifying the earlier charge-sheet, giving a narration that the accused broke
open the house of the deceased and PW5, her husband, due to previous
enmity and when she made her entry into the house, she was raped and
murdered. The murder took place as she was resisting rape and tried to
attack the accused with a sword, recovered from the place of occurrence,
which was actually used by them.
      9. Before the trial court, the prosecution has examined 16 witnesses,
while a police officer has been examined on behalf of the accused based upon
Exhibits D1 and D2, statements recorded under Section 161 of the CrPC,
given by the minor children of the deceased, to elucidate the contradiction
in the case of the prosecution.
       10. PW1, as already stated, is the informant and PW2 is his wife. PW3
is the witness to the recoveries made from the house of the deceased. PW5 is
the husband of the deceased and PW6 is the lady from Tibet to whom jewels
were pledged. PW9 is the doctor who conducted the post-mortem. This
witness had deposed that there was no evidence of rape. PW16 and PW13
1162         SUPREME COURT REPORTS                         [2023] 13 S.C.R.


are the Investigating Officers who filed the initial and the supplementary
charge sheets respectively.
       11. The trial court, after a complete and thorough examination of the
evidence placed before it, rendered an order of acquittal. It disbelieved
the testimony of PW1 on account of his unnatural conduct. This witness
had chosen not to react and to take follow-up action even after the accused
left the place. It took into consideration the statement given by the children
under Section 161 of the CrPC that this witness advised the children to
tell their mother to give a complaint to the police, though she was found
dead. There were a number of houses adjoining the home of the deceased.
It was not known as to how PW1 could come to the conclusion about the
manner of the death, if according to his statement, he had not actually
seen the occurrence.
     12. The Court further found that there was no explanation as to why
the fingerprint report has not been placed on record. The children of the
deceased, her mother-in-law and her neighbour Chandrawati have not been
examined, despite being material witnesses. Taking note of the statement
of PW6, the trial court observed that the so-called recovery is highly
doubtful as she has stated that the jewels have been pledged, but not sold.
      13. The High Court in the impugned order set aside the acquittal
rendered by the trial court by substantially placing reliance upon the
evidence of PW1. It held that the evidence of PW1 would indicate the
prior enmity between PW5 and the accused. PW9 has clearly stated that
the death was homicidal. Recovery of the sword and knife has been proved
by the evidence of PW3, from the scene of occurrence. PW1 being a
natural, educated and God-fearing person, his testimony has to be accepted.
The evidence of PW2 is also in tune with that of PW1. PW5 has also
deposed that he was informed by PW1 that the accused was seen fleeing
away towards the hillside. The fact that the accused were declared as the
proclaimed offenders would add substance to the case of the prosecution.
Non-examination of the material witnesses and the non-availability of
the fingerprint report would not render the prosecution version doubtful.
However, it was held that the offences pertaining to rape and theft are
not proved beyond reasonable doubt. Accordingly, the appellant was
convicted for committing murder with a further conviction for an attempt
              HARVINDER SINGH @ BACHHU v.             1163
    THE STATE OF HIMACHAL PRADESH [M. M. SUNDRESH, J.]


to rape. Incidentally, conviction was also rendered for house breaking
under Section 454 of the IPC.
     SUBMISSIONS OF THE APPELLANT
     14. Learned counsel appearing for the appellant made a primary
contention that the High Court without specifically pointing out the
conclusion arrived at by the trial court on a factual analysis has chosen to
reverse it. Reliance made on the evidence of PW1, despite existence of
contradictions, ought not to have been undertaken. The question is not as to
whether there occurred a homicidal death or not but who did it. The lapses
on the part of the prosecution would go to the root of the case especially
when there was no explanation forthcoming. Having not agreed with the
version of the prosecution qua the recovery, the High Court ought not to
have placed reliance on the doubtful testimony of PW1.
     SUBMISSIONS OF THE RESPONDENT
      15. Repelling the contentions made, the learned counsel appearing for
the State submitted that it is well open to the High Court to reappreciate
the evidence available on record, which was actually done. In the absence
of any motive on the part of PW1 to implicate the appellant on purpose,
the High Court rightly ignored minor contradictions. Having found the
existence of prior enmity between accused and PW5, a conviction was
accordingly rendered. The mere fact that the appellant was acquitted for
rape while holding him guilty for an attempt to rape, is itself a testimony
to hold that there was application of mind by the High Court. Inasmuch
as relevant materials having been taken note of, the order of conviction
requires to be confirmed.
     REPUTATION IS A FACT
     Section 3 of the Indian Evidence Act 1872
     “3. Interpretation clause.—In this Act the following words and
     expressions are used in the following senses, unless a contrary intention
     appears from the context:—
              xxx               xxx                           xxx
     “Fact”.—“Fact” means and includes—
1164           SUPREME COURT REPORTS                           [2023] 13 S.C.R.


       (1) any thing, state of things, or relation of things, capable of being
       perceived by the senses;
       (2) any mental condition of which any person is conscious.
                                  Illustrations
       (a) That there are certain objects arranged in a certain order in a certain
       place, is a fact.
       (b) That a man heard or saw something, is a fact.
       (c) That a man said certain words, is a fact.
       (d) That a man holds a certain opinion, has a certain intention, acts
       in good faith or fraudulently, or uses a particular word in a particular
       sense, or is or was at a specified time conscious of a particular
       sensation, is a fact.
       (e) That a man has a certain reputation, is a fact.”
                  xxx               xxx                xxx
                                                             (emphasis supplied)
      16. Reputation is indeed a fact as defined under Section 3 of the Indian
Evidence Act, 1872 (hereinafter referred to as “Evidence Act”). Facts can
broadly be divided into external and internal facts. External facts are those
which can be perceived by the five senses while internal facts arise through
thoughts and feelings such as love, anger, fear, hatred and intention etc. A
reputation has to be seen from the point of view of an identifiable group while
character is what a person really is. Character is to be formed while reputation
is to be acquired. Character may lead to formation of one’s reputation but
both are distinct and different. Reputation thus forms part of internal facts
and therefore it is required to be proved in the form of opinion of persons
who form it accordingly. When reputation is to be taken as a relevant fact,
its evidentiary value becomes restrictive and limited. It is indeed a weak
piece of evidence when becomes relatable to a fact in issue.
     17. A court of law cannot declare the reputation of a person based
upon its own opinion merely because a person is educated and said to be
God-fearing, that by itself will not create a positive reputation.
              HARVINDER SINGH @ BACHHU v.             1165
    THE STATE OF HIMACHAL PRADESH [M. M. SUNDRESH, J.]


      18. Character and reputation do have an element of interconnectivity.
Reputation is predicated on the general traits of character. In other words,
character may be subsumed into reputation. Courts are not expected to get
carried away by the mere background of a person especially while acting
as an appellate forum, when his conduct, being a relevant fact, creates
serious doubt. In other words, the conduct of a witness under Section 8
of the Evidence Act, is a relevant fact to decide, determine and prove the
reputation of a witness. When the conduct indicates that it is unnatural
from the perspective of normal human behaviour, the so-called reputation
takes a back seat.
     19. We wish to place reliance on the decision of this Court in Lahu
Kamlakar Patil And Another v. State of Maharashtra, (2013) 6 SCC
417,
     “26. From the aforesaid pronouncements, it is vivid that witnesses
     to certain crimes may run away from the scene and may also leave
     the place due to fear and if there is any delay in their examination,
     the testimony should not be discarded. That apart, a court has
     to keep in mind that different witnesses react differently under
     different situations. Some witnesses get a shock, some become
     perplexed, some start wailing and some run away from the scene
     and yet some who have the courage and conviction come forward
     either to lodge an FIR or get themselves examined immediately.
     Thus, it differs from individuals to individuals. There cannot be
     uniformity in human reaction. While the said principle has to be
     kept in mind, it is also to be borne in mind that if the conduct of
     the witness is so unnatural and is not in accord with acceptable
     human behaviour allowing variations, then his testimony
     becomes questionable and is likely to be discarded.
     27. Keeping in mind the aforesaid, we shall proceed to scrutinise the
     evidence of PW 2. As is evincible from his deposition, on seeing the
     assault he got scared, ran away from the hotel and hid himself behind
     the pipes till early morning. He went home, changed his clothes and
     rushed to Pune [Ed.: Since the case has been tried by the Additional
     Sessions Judge, Raigad, Alibag, it would seem that the incident took
     place in Alibag, Raigad, which is about 300 km from Pune.] . He did
1166          SUPREME COURT REPORTS                        [2023] 13 S.C.R.


       not mention about the incident to his family members. He left for
       Pune and the reason for the same was also not stated to his family
       members. He did not try to contact the police from his residence
       which he could have. After his arrival at Pune, he did not mention
       about the incident in his sister-in-law’s house. After coming back
       from Pune, on the third day of the occurrence, his wife informed him
       that the police had come and that Bhau, who had accompanied him,
       was dead. It is interesting to note that in the statement under Section
       161 of the Code, PW 2 had not stated that he was hiding himself out
       of fear or he was scared of the police. In the said statement, the fact
       that he was informed by his wife that Bhau was dead was also not
       mentioned. One thing is clear from his testimony that on seeing the
       incident, he was scared and frightened and ran away from the hotel.
       He was frightened and hid himself behind the pipes throughout the
       night and left for home the next morning. But his conduct not to
       inform his wife or any family member and leaving for Pune and not
       telling anyone there defies normal human behaviour. He has also
       not stated anywhere that he was so scared that even after he reached
       home, he did not go to the police station which was hardly at any
       distance from his house. There is nothing in his testimony that he
       was under any kind of fear or shock when he arrived at his house.
       It is also surprising that he had not told his family members and he
       went to Pune without disclosing the reason and after he arrived from
       Pune and on being informed by his wife that his companion Bhau
       had died, he went to the police station. We are not oblivious of the
       fact that certain witnesses in certain circumstances may be frightened
       and behave in a different manner and due to that, they may make
       themselves available to the police belatedly and their examination
       gets delayed. But in the case at hand, regard being had to the evidence
       brought on record and, especially, non-mentioning of any kind of
       explanation for rushing away to Pune, the said factors make the
       veracity of his version doubtful. His evidence cannot be treated as
       so trustworthy and unimpeachable to record a conviction against
       the appellants. The learned trial court as well as the High Court
       has made an endeavour to connect the links and inject theories
       like fear, behavioural pattern, tallying of injuries inflicted on
              HARVINDER SINGH @ BACHHU v.             1167
    THE STATE OF HIMACHAL PRADESH [M. M. SUNDRESH, J.]


     the deceased with the post-mortem report and convicted the
     appellants. In the absence of any kind of clinching evidence to
     connect the appellants with the crime, we are disposed to think
     that it would not be appropriate to sustain the conviction.”
                                                       (emphasis supplied)
   20. In Narendrasinh Keshubhai Zala v. State of Gujarat, 2023 (4)
SCALE 478,
     “8. It is a settled principle of law that doubt cannot replace proof.
     Suspicion, howsoever great it may be, is no substitute of proof in
     criminal jurisprudence [Jagga Singh v. State of Punjab, 1994 Supp
     (3) SCC 463]. Only such evidence is admissible and acceptable
     as is permissible in accordance with law. In the case of a sole eye
     witness, the witness has to be reliable, trustworthy, his testimony
     worthy of credence and the case proven beyond reasonable doubt.
     Unnatural conduct and unexplained circumstances can be a
     ground for disbelieving the witness. This Court in the case of Anil
     Phukan v. State of Assam, (1993) 3 SCC 282 has held that:
     “3. … So long as the single eyewitness is a wholly reliable witness
     the courts have no difficulty in basing conviction on his testimony
     alone. However, where the single eyewitness is not found to be a
     wholly reliable witness, in the sense that there are some circumstances
     which may show that he could have an interest in the prosecution,
     then the courts generally insist upon some independent corroboration
     of his testimony, in material particulars, before recording conviction.
     It is only when the courts find that the single eyewitness is a wholly
     unreliable witness that his testimony is discarded in toto and no amount
     of corroboration can cure that defect…”
                                                       (emphasis supplied)
     21. On the issue of appreciation of evidence, we wish to place reliance
upon the decision of this Court in Rajesh Yadav And Another v. State of
Uttar Pradesh, (2022) 12 SCC 200,
     “13. The definition of the word “proved” though gives an
     impression of a mere interpretation, in effect, is the heart and soul
1168           SUPREME COURT REPORTS                         [2023] 13 S.C.R.


       of the entire Act. This clause, consciously speaks of proving a fact
       by considering the “matters before it”. The importance is to the
       degree of probability in proving a fact through the consideration
       of the matters before the court. What is required for a court to
       decipher is the existence of a fact and its proof by a degree of
       probability, through a logical influence.
       14. Matters are necessary, concomitant material factors to prove a fact.
       All evidence would be “matters” but not vice versa. In other words,
       matters could be termed as a genus of which evidence would be a
       species. Matters also add strength to the evidence giving adequate
       ammunition in the Court’s sojourn in deciphering the truth. Thus,
       the definition of “matters” is exhaustive, and therefore, much wider
       than that of “evidence”. However, there is a caveat, as the court is not
       supposed to consider a matter which acquires the form of an evidence
       when it is barred in law. Matters are required for a court to believe in
       the existence of a fact.
       15. Matters do give more discretion and flexibility to the court in
       deciding the existence of a fact. They also include all the classification
       of evidence such as circumstantial evidence, corroborative evidence,
       derivative evidence, direct evidence, documentary evidence, hearsay
       evidence, indirect evidence, oral evidence, original evidence,
       presumptive evidence, primary evidence, real evidence, secondary
       evidence, substantive evidence, testimonial evidence, etc.
       16. In addition, they supplement the evidence in proving the existence
       of a fact by enhancing the degree of probability. As an exhaustive
       interpretation has to be given to the word “matter”, and for that
       purpose, the definition of the expression of the words “means and
       includes”, meant to be applied for evidence, has to be imported to
       that of a “matter” as well. Thus, a matter might include such of those
       which do not fall within the definition of Section 3, in the absence of
       any express bar.
       17. What is important for the court is the conclusion on the basis
       of existence of a fact by analysing the matters before it on the
       degree of probability. The entire enactment is meant to facilitate
       the court to come to an appropriate conclusion in proving a fact.
          HARVINDER SINGH @ BACHHU v.             1169
THE STATE OF HIMACHAL PRADESH [M. M. SUNDRESH, J.]


There are two methods by which the court is expected to come to
such a decision. The court can come to a conclusion on the existence
of a fact by merely considering the matters before it, in forming
an opinion that it does exist. This belief of the court is based upon
the assessment of the matters before it. Alternatively, the court can
consider the said existence as probable from the perspective of a
prudent man who might act on the supposition that it exists. The
question as to the choice of the options is best left to the court to
decide. The said decision might impinge upon the quality of the
matters before it.
18. The word “prudent” has not been defined under the Act. When
the court wants to consider the second part of the definition clause
instead of believing the existence of a fact by itself, it is expected
to take the role of a prudent man. Such a prudent man has to be
understood from the point of view of a common man. Therefore, a
Judge has to transform into a prudent man and assess the existence
of a fact after considering the matters through that lens instead
of a Judge. It is only after undertaking the said exercise can he
resume his role as a Judge to proceed further in the case.
19. The aforesaid provision also indicates that the court is
concerned with the existence of a fact both in issue and relevant, as
against a whole testimony. Thus, the concentration is on the proof
of a fact for which a witness is required. Therefore, a court can
appreciate and accept the testimony of a witness on a particular
issue while rejecting it on others since it focuses on an issue of
fact to be proved. However, we may hasten to add, the evidence
of a witness as whole is a matter for the court to decide on the
probability of proving a fact which is inclusive of the credibility of
the witness. Whether an issue is concluded or not is also a court’s
domain.
Appreciation of evidence
20. We have already indicated different classification of evidence.
While appreciating the evidence as aforesaid along with the
matters attached to it, evidence can be divided into three categories
broadly, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii)
1170          SUPREME COURT REPORTS                         [2023] 13 S.C.R.


       neither wholly reliable nor wholly unreliable. If evidence, along
       with matters surrounding it, makes the court believe it is wholly
       reliable qua an issue, it can decide its existence on a degree of
       probability. Similar is the case where evidence is not believable.
       When evidence produced is neither wholly reliable nor wholly
       unreliable, it might require corroboration, and in such a case, court
       can also take note of the contradictions available in other matters.
       21. The aforesaid principle of law has been enunciated in the celebrated
       decision of this Court in Vadivelu Thevar v. State of Madras [1957
       SCR 981 : AIR 1957 SC 614] : (AIR p. 619, paras 11-12)
            “11. In view of these considerations, we have no hesitation in
            holding that the contention that in a murder case, the court should
            insist upon plurality of witnesses, is much too broadly stated.
            Section 134 of the Indian Evidence Act has categorically laid it
            down that ‘no particular number of witnesses shall in any case, be
            required for the proof of any fact’. The legislature determined, as
            long ago as 1872, presumably after due consideration of the pros
            and cons, that it shall not be necessary for proof or disproof of a
            fact to call any particular number of witnesses. In England, both
            before and after the passing of the Evidence Act, 1872, there have
            been a number of statutes as set out in Sarkar’s Law of Evidence
            — 9th Edn., at pp. 1100 and 1101, forbidding convictions on the
            testimony of a single witness. The Indian Legislature has not
            insisted on laying down any such exceptions to the general rule
            recognized in Section 134 quoted above. The section enshrines
            the well-recognised maxim that “Evidence has to be weighed and
            not counted”. Our Legislature has given statutory recognition
            to the fact that administration of justice may be hampered if
            a particular number of witnesses were to be insisted upon. It
            is not seldom that a crime has been committed in the presence
            of only one witness, leaving aside those cases which are not of
            uncommon occurrence, where determination of guilt depends
            entirely on circumstantial evidence. If the Legislature were to
            insist upon plurality of witnesses, cases where the testimony of
            a single witness only could be available in proof of the crime,
          HARVINDER SINGH @ BACHHU v.             1171
THE STATE OF HIMACHAL PRADESH [M. M. SUNDRESH, J.]


    would go unpunished. It is here that the discretion of the presiding
    Judge comes into play. The matter thus must depend upon the
    circumstances of each case and the quality of the evidence of
    the single witness whose testimony has to be either accepted or
    rejected. If such a testimony is found by the court to be entirely
    reliable, there is no legal impediment to the conviction of the
    accused person on such proof. Even as the guilt of an accused
    person may be proved by the testimony of a single witness,
    the innocence of an accused person may be established on the
    testimony of a single witness, even though a considerable number
    of witnesses may be forthcoming to testify to the truth of the
    case for the prosecution. Hence, in our opinion, it is a sound and
    well-established rule of law that the court is concerned with the
    quality and not with the quantity of the evidence necessary for
    proving or disproving a fact. Generally speaking, oral testimony
    in this context may be classified into three categories, namely:
    (1) Wholly reliable.
    (2) Wholly unreliable.
    (3) Neither wholly reliable nor wholly unreliable.
    12. In the first category of proof, the court should have no
    difficulty in coming to its conclusion either way — it may
    convict or may acquit on the testimony of a single witness, if
    it is found to be above reproach or suspicion of interestedness,
    incompetence or subornation. In the second category, the court
    equally has no difficulty in coming to its conclusion. It is in the
    third category of cases, that the court has to be circumspect and
    has to look for corroboration in material particulars by reliable
    testimony, direct or circumstantial. There is another danger in
    insisting on plurality of witnesses. Irrespective of the quality of
    the oral evidence of a single witness, if courts were to insist on
    plurality of witnesses in proof of any fact, they will be indirectly
    encouraging subornation of witnesses. Situations may arise and
    do arise where only a single person is available to give evidence
    in support of a disputed fact. The court naturally has to weigh
    carefully such a testimony and if it is satisfied that the evidence
1172           SUPREME COURT REPORTS                         [2023] 13 S.C.R.


            is reliable and free from all taints which tend to render oral
            testimony open to suspicion, it becomes its duty to act upon such
            testimony. The law reports contain many precedents where the
            court had to depend and act upon the testimony of a single witness
            in support of the prosecution. There are exceptions to this rule,
            for example, in cases of sexual offences or of the testimony of
            an approver; both these are cases in which the oral testimony is,
            by its very nature, suspect, being that of a participator in crime.
            But, where there are no such exceptional reasons operating, it
            becomes the duty of the court to convict, if it is satisfied that
            the testimony of a single witness is entirely reliable. We have,
            therefore, no reasons to refuse to act upon the testimony of the
            first witness, which is the only reliable evidence in support of
            the prosecution.”
                                                          (emphasis supplied)
       CIRCUMSTANTIAL EVIDENCE
       “The mind was apt to take a pleasure in adapting circumstances to
       one another, and even in straining them a little, if need be, to force
       them to form parts of one connected whole; and the more ingenious
       the mind of the individual, the more likely was it, considering such
       matters, to overreach and mislead itself, to supply some little link that
       is wanting, to take for granted some fact consistent with its previous
       theories and necessary to render them complete.”
                                                Warning addressed by Baron
                                               Alderson to the jury in Reg. v.
                                                Hodge [(1838) 2 Lewin 227]
      22. Law governing circumstantial evidence has been reiterated
quite often by this Court. One has to be circumspect and cautious while
undertaking the exercise of linking the evidence available. Courts should
not lose sight of the fact that such evidence should unerringly lead and point
out the accused alone, of course, on the facts of each case. We wish to quote
with profit the Panchsheel of the proof of a case based on circumstantial
evidence, laid down by this Court in Sharad Birdhichand Sarda v. State
of Maharashtra, (1984) 4 SCC 116,
          HARVINDER SINGH @ BACHHU v.             1173
THE STATE OF HIMACHAL PRADESH [M. M. SUNDRESH, J.]


“153. A close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused can be
said to be fully established:
     (1) the circumstances from which the conclusion of guilt is
     to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances
concerned ‘must or should’ and not ‘may be’ established. There is not
only a grammatical but a legal distinction between ‘may be proved’
and “must be or should be proved” as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973
SCC (Cri) 1033 : 1973 Cri LJ 1783] where the following observations
were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]
     Certainly, it is a primary principle that the accused must be and
     not merely may be guilty before a court can convict and the
     mental distance between ‘may be’ and ‘must be’ is long and
     divides vague conjectures from sure conclusions.
     (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) they should exclude every possible hypothesis except the
     one to be proved, 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.
154. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial
evidence.”
                                                 (emphasis supplied)
1174          SUPREME COURT REPORTS                         [2023] 13 S.C.R.


       DOUBLE PRESUMPTION
      23. When the view of the trial court, which had the benefit of seeing
the demeanour of the witnesses, is both a possible and plausible one, it shall
not be replaced by yet another one. The presumption of innocence in favour
of the accused gets strengthened by the decision of the trial court when he
gets an order of acquittal. In Jafarudheen and Others v. State of Kerala,
(2022) 8 SCC 440,
       “25. While dealing with an appeal against acquittal by invoking
       Section 378 CrPC, the appellate court has to consider whether
       the trial court’s view can be termed as a possible one, particularly
       when evidence on record has been analysed. The reason is that
       an order of acquittal adds up to the presumption of innocence in
       favour of the accused. Thus, the appellate court has to be relatively
       slow in reversing the order of the trial court rendering acquittal.
       Therefore, the presumption in favour of the accused does not get
       weakened but only strengthened. Such a double presumption
       that enures in favour of the accused has to be disturbed only by
       thorough scrutiny on the accepted legal parameters.
       Precedents
       26. Mohan v. State of Karnataka [(2022) 12 SCC 619 : 2021 SCC
       OnLine SC 1233] as hereunder : (SCC paras 20-23)
            “20. Section 378 CrPC enables the State to prefer an appeal
            against an order of acquittal. Section 384 CrPC speaks of the
            powers that can be exercised by the appellate court. When
            the trial court renders its decision by acquitting the accused,
            presumption of innocence gathers strength before the appellate
            court. As a consequence, the onus on the prosecution becomes
            more burdensome as there is a double presumption of innocence.
            Certainly, the Court of first instance has its own advantages in
            delivering its verdict, which is to see the witnesses in person
            while they depose. The appellate court is expected to involve
            itself in a deeper, studied scrutiny of not only the evidence
            before it, but is duty-bound to satisfy itself whether the decision
            of the trial court is both possible and plausible view. When two
          HARVINDER SINGH @ BACHHU v.             1175
THE STATE OF HIMACHAL PRADESH [M. M. SUNDRESH, J.]


    views are possible, the one taken by the trial court in a case of
    acquittal is to be followed on the touchstone of liberty along
    with the advantage of having seen the witnesses. Article 21 of
    the Constitution of India also aids the accused after acquittal
    in a certain way, though not absolute. Suffice it is to state that
    the appellate court shall remind itself of the role required to
    play, while dealing with a case of an acquittal.
    21. Every case has its own journey towards the truth and it
    is the Court’s role to undertake. Truth has to be found on the
    basis of evidence available before it. There is no room for
    subjectivity nor the nature of offence affects its performance. We
    have a hierarchy of courts in dealing with cases. An appellate
    court shall not expect the trial court to act in a particular way
    depending upon the sensitivity of the case. Rather it should
    be appreciated if a trial court decides a case on its own merit
    despite its sensitivity.
    22. At times, courts do have their constraints. We find, different
    decisions being made by different courts, namely, the trial
    court on the one hand and the appellate courts on the other. If
    such decisions are made due to institutional constraints, they
    do not augur well. The district judiciary is expected to be the
    foundational court, and therefore, should have the freedom of
    mind to decide a case on its own merit or else it might become
    a stereotyped one rendering conviction on a moral platform.
    Indictment and condemnation over a decision rendered, on
    considering all the materials placed before it, should be avoided.
    The appellate court is expected to maintain a degree of caution
    before making any remark.
    23. This Court, time and again has laid down the law on the
    scope of inquiry by an appellate court while dealing with an
    appeal against acquittal under Section 378 CrPC. We do not
    wish to multiply the aforesaid principle except placing reliance
    on a recent decision of this Court in Anwar Ali v. State of H.P.
    [(2020) 10 SCC 166 : (2021) 1 SCC (Cri) 395] : (SCC pp.
    182-85, para 14)
1176          SUPREME COURT REPORTS                      [2023] 13 S.C.R.


            ‘14.2. When can the findings of fact recorded by a court be held
            to be perverse has been dealt with and considered in para 20
            of the aforesaid decision, which reads as under : (Babu case
            [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC
            (Cri) 1179] , SCC p. 199)
            “20. The findings of fact recorded by a court can be held to
            be perverse if the findings have been arrived at by ignoring
            or excluding relevant material or by taking into consideration
            irrelevant/inadmissible material. The finding may also be
            said to be perverse if it is “against the weight of evidence”,
            or if the finding so outrageously defies logic as to suffer
            from the vice of irrationality. (Vide Rajinder Kumar Kindra
            v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131],
            Excise & Taxation Officer-cum-Assessing Authority v. Gopi
            Nath & Sons [1992 Supp (2) SCC 312], Triveni Rubber
            & Plastics v. CCE [1994 Supp (3) SCC 665], Gaya Din v.
            Hanuman Prasad [(2001) 1 SCC 501], Arulvelu [Arulvelu
            v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] and
            Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC
            636 : (2010) 1 SCC (Cri) 372])”
       It is further observed, after following the decision of this Court
       in Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999
       SCC (L&S) 429] , that if a decision is arrived at on the basis of
       no evidence or thoroughly unreliable evidence and no reasonable
       person would act upon it, the order would be perverse. But if there
       is some evidence on record which is acceptable and which could
       be relied upon, the conclusions would not be treated as perverse
       and the findings would not be interfered with.”
                 xxx             xxx                      xxx
                                                     (emphasis supplied)
       NON-EXAMINATION OF MATERIAL WITNESSES
     24. Failure on the part of the prosecution in not examining a
witness, though material, by itself would not vitiate the trial. However,
when facts are so glaring and with the witnesses available, particularly
               HARVINDER SINGH @ BACHHU v.             1177
     THE STATE OF HIMACHAL PRADESH [M. M. SUNDRESH, J.]


when they are likely to give a different story, the Court shall take adequate
note of it. When a circumstance has been brought to the notice of the Court
by the defense and the Court is convinced that a prosecution witness has
been deliberately withheld, as it in all probability would destroy its version,
it has to take adverse notice. Anything contrary to such an approach would
be an affront to the concept of fair play. In Takhaji Hiraji v. Thakore
Kubersing Chamansing, (2001) 6 SCC 145,
     “19. So is the case with the criticism levelled by the High Court on
     the prosecution case finding fault therewith for non-examination of
     independent witnesses. It is true that if a material witness, who
     would unfold the genesis of the incident or an essential part of
     the prosecution case, not convincingly brought to fore otherwise,
     or where there is a gap or infirmity in the prosecution case which
     could have been supplied or made good by examining a witness
     who though available is not examined, the prosecution case can
     be termed as suffering from a deficiency and withholding of such
     a material witness would oblige the court to draw an adverse
     inference against the prosecution by holding that if the witness
     would have been examined it would not have supported the
     prosecution case. On the other hand if already overwhelming
     evidence is available and examination of other witnesses would
     only be a repetition or duplication of the evidence already adduced,
     non-examination of such other witnesses may not be material. In
     such a case the court ought to scrutinise the worth of the evidence
     adduced. The court of facts must ask itself — whether in the facts
     and circumstances of the case, it was necessary to examine such
     other witness, and if so, whether such witness was available to be
     examined and yet was being withheld from the court. If the answer
     be positive then only a question of drawing an adverse inference
     may arise. If the witnesses already examined are reliable and the
     testimony coming from their mouth is unimpeachable the court can
     safely act upon it, uninfluenced by the factum of non-examination
     of other witnesses…”
                                                         (emphasis supplied)
1178          SUPREME COURT REPORTS                         [2023] 13 S.C.R.


       EFFECT OF ABSCONDING
     25. A subsequent conduct would be a relevant fact under Section
8 of the Evidence Act. However, such a fact has to be proved. Mere
absconding by itself cannot constitute a sole factor to convict a person.
It may be because an accused may abscond as he might fear an illegal
arrest. In Durga Burman Roy v. State of Sikkim, (2014) 13 SCC 35,
      “13. “To abscond” means, go away secretly or illegally and
hurriedly to escape from custody or avoid arrest. It has come in evidence
that the accused had told others that they were going from their place of
work at Gangtok to their home at New Jalpaiguri. They were admittedly
taken into custody from their respective houses only, at New Jalpaiguri on
the third day of the incident. Therefore, it is difficult to hold that the accused
had been absconding. Even assuming for argument’s sake that they were
not seen at their workplace after the alleged incident, it cannot be held that
by itself an adverse inference is to be drawn against them as held by this
Court in Sunil Kundu v. State of Jharkhand [(2013) 4 SCC 422 : (2013) 2
SCC (Cri) 427] . To quote para 28 : (SCC pp. 433-34)
           “28. It was argued that the accused were absconding and,
           therefore, adverse inference needs to be drawn against them.
           It is well settled that absconding by itself does not prove the
           guilt of a person. A person may run away due to fear of false
           implication or arrest. (See Sk. Yusuf v. State of W.B. [(2011)
           11 SCC 754 : (2011) 3 SCC (Cri) 620] ) It is also true that
           the plea of alibi taken by the accused has failed. The defence
           witnesses examined by them have been disbelieved. It was urged
           that adverse inference should be drawn from this. We reject this
           submission. When the prosecution is not able to prove its case
           beyond reasonable doubt it cannot take advantage of the
           fact that the accused have not been able to probabilise their
           defence. It is well settled that the prosecution must stand or
           fall on its own feet. It cannot draw support from the weakness
           of the case of the accused, if it has not proved its case beyond
           reasonable doubt.”
                                                          (emphasis supplied)
              HARVINDER SINGH @ BACHHU v.             1179
    THE STATE OF HIMACHAL PRADESH [M. M. SUNDRESH, J.]


     DISCUSSION
       26. PW1 has not acted after the deceased pleaded for help, particularly
from him. There is absolutely no evidence available on record as to how
the deceased was aware of the fact that PW1 was outside. Be that as it may,
it is rather strange that he did not even venture to get into the house. Added
to that, he went away after being threatened by the accused. Strangely,
he undertook the unnecessary exercise of making further inquiries with
the mother-in-law of the deceased. If he had seen the accused leaving
towards the hill area, he should have entered the house of the deceased
and checked her condition. Rather, he was waiting for his wife (PW2). His
evidence is also not in tune with PW5 with respect to motive. PW5 has
stated that there was no prior enmity. We are of the considered view that
the High Court has misconstrued the concept of reputation and blindly
believed the evidence of PW1.
     27. The fact that PW1 immediately advised the children of the
deceased to tell their mother to register a complaint with the police
coupled with the further fact that PW11 deposed that Police station was
near to the Magistrate’s complex creates doubt on the origin of the first
information report.
      28. The trial court has given substantial reasons for arriving at its
conclusion. One has to keep in mind that it is the prosecution which has
to prove the charges beyond reasonable doubt. The approach of the High
Court in dealing with the case of circumstantial evidence is not in line
with the caution expressed in R. v. Hodge, (1838) 2 Lew 227. The High
Court after holding that a homicide had occurred, blindly placed reliance
upon the evidence of PW1.
      29. Apart from the non-availability of the fingerprint report, the
non-examination of the witnesses, as noted by the trial court, would go
to the root of the very case of the prosecution. It is nobody’s case that
the witnesses were not available. That is the reason why the defense has
marked Exhibits D1 and D2, statement recorded under section 161 of
the CrPC rendered by the children of the deceased. We have to take into
consideration the fact that when PW1 came back the children were very
much available in the house of the deceased. They were not toddlers but
studying in 5th and 7th standard. It is impossible to accept that they did not
1180           SUPREME COURT REPORTS                        [2023] 13 S.C.R.


know that their mother was dead lying in a pool of blood and that too in
half-naked condition.
      30. When it comes to the recovery of jewels, even the High Court
did not give its approval. But nonetheless it proceeded to rely upon the
recovery made from the place of occurrence on the basis of the observation
in the inquest report. It is the very case of the prosecution that the material
object-sword, was used to commit murder and therefore in the absence of
the availability of any fingerprint belonging to the accused, one cannot
come to the conclusion that it was used by them alone.
      31. The High Court was persuaded by the homicidal death of the
deceased while ignoring multiple findings rendered by the trial court
including the fact that the house of the deceased was surrounded by
numerous other houses. Thus, on the basis of the discussion made, we
are constrained to come to the conclusion that the appellant is entitled
to the benefit of doubt as the prosecution has not proved its case beyond
reasonable doubt. The impugned order passed by the High Court is set
aside and resultantly, the order of acquittal passed by the trial court stands
restored. The appeals are allowed. The appellant is directed to be released
forthwith, if not required in any other case.




Headnotes prepared by:                                          Appeals allowed.
Nidhi Jain