SUJIT BISWASversusSTATE OF ASSAM

                         [2013] 3 S.C.R. 830


A                           SUJIT BISWAS
                                   v.
                        STATE OF ASSAM
                (Criminal Appeal No. 1323 of 2011)

                            MAY 28, 2013
B
          [DR. B.S. CHAUHAN AND DIPAK MISRA. JJ.]

         Penal Code, 1860 - s.376(2)(f) and 302 - Rape and
    murder of minor girl - Circumstantial evidence - Appreciation
C   of- Standard of proof- Mental distance between 'may be' and
     'must be' - Held: Suspicion, however grave, cannot take the
    place of proof-Large difference between something that 'may
    be' proved, and something that 'will be proved' - Vital distance
    between mere conjectures and sure conclusions - The court
D   must draw an inference with respect to whether the chain of
    circumstances is complete, and when the circumstances
    therein are collectively considered, the same must lead only
    to the irresistible conclusion, that the accused alone is the
    perpetrator of the crime in question - The instant case is one
E   of circumstantial evidence, and only two circumstances
    appeared against the accused-appellant, namely, a) that he
    had been able to point out the place where the qeceased girl
    was lying, after his demand for Rs. 201- had been accepted;
    and b) that subsequently, he had left the said place and
F   boarded a bus immediately - However, the most material
    piece of evidence which could have been used against the
    appellant was that the blood stains found on his underwear
    matched the blood group of the deceased girl - However, the
    said circumstance was not put to the appellant while he was
G   being examined u/s.313 CrPC by the trial court, and in view
    thereof, the same cannot be taken into consideration -
    Hence, even by a stretch of the imagination, it cannot be held
    that the circumstances clearly point towards the guilt of the
H                                830
         SUJIT BISWAS v. STATE OF ASSAM                      831


appellant - Burden lies not only on the accused to prove his         A
innocence, but also upon the prosecution, to prove its case
beyond all reasonable doubt - In a case of circumstantial
evidence, the burden of proof on the prosecution is much
greater - Conviction of appellant (as recorded by courts
below) set aside - Evidence.                                         B

      Code of Criminal Procedure, 1973 - s.313 -
Examination of accused person u/s.313 CrPC - Purpose -
Held: Is to meet the requirement of'the principles of natural
justice, i.e. audi alteram partem - No matter how yveC]k the         c
 evidence of the prosecutiOn may be, it is the duty of the court
 to examine the accused, and to seek his explanation as
regards the incriminating material that has surfaced against
him - Circumstances not put to the accused in his
 examination u/s.313 CrPC, cannot be used against him and            D
must be excluded from consideration.

     Evidence - Conduct of the accused - Act of absconding
- Effect - Held: Mere abscondance of an accused does not
lead to a firm conclusion of his guilty mind - An innocent           E
man may also abscond in order to evade arrest -In a given
situation, such an action may be part of the natural conduct
of the accused - Abscondance is in fact relevant evidence,
but its evidentiary value depends upon the surrounding
circumstances, and hence, the same must only be taken as
                                                                     F
a minor item in evidence for sustaining conviction.
      Evidence Act, 1872 - s. 11 - Omission of important facts
affecting the probability of the case - Held: Is a relevant factor
uls. 11 to judge the veracity of the case of the prosecution.
                                                                     G
    Criminal Trial - Adverse inference against the accused
- When drawn - Held: Adverse inference can be drawn
against the accused only and only if the incriminating material
stands fully established, and the accused is not able to furnish
                                                                     H
   832      SUPREME COURT REPORTS               [2013) 3 S.C.R.


A any explanation for the same - However, the accused has the
   right to remain silent, as he cannot be forced to become a
   witness against himself.

       A three year old minor girl went missing and was
B later found gasping, wrapped in a jute-sack (gunny bag),
  the mouth of which was closed. The girl was taken to a
  nursing home and then to a medical college where she
  subsequently died. On p.ost-mortem examination, various
  injuries were found on her body, including an injury to
c her vagina.
       The prosecution alleged that the appellant had raped
  and caused the death of the girl. The trial court convicted
  the appellant under Sections 376(2)(f) and 302 IPC
  sentencing him to death. The High Court commuted the
0
  death sentence of the appellant to life imprisonment, with
  a direction that the appellant would breathe his last in jail,
  and that he would not be given the benefit of remissions
  etc. under Sections 432 and 433-A of CrPC. Hence the
E present appeal.

         Allowing the appeal, the Court

       HELD: 1.1. Suspicion cannot take the place of proof,
  and there is a large difference between something that
F 'may be' proved, and something that 'will be proved'. The
  mental distance between 'may be' and 'must be' is quite
  large, and divides vague conjectures from sure
  conclusions which must be through cogent reasoning.
  The court must ensure, that miscarriage of justice is
G avoided, and if the facts and circumstances of a case so
  demand, then the benefit of doubt must be given to the
  accused, keeping in mind that a reasonable doubt is not
  an imaginary, trivial or a merely probable doubt, but a fair
  doubt that is based upon reason and common sense.
H [Para 6] [841-D-E, G-H, 842-A]
          SUJIT BISWAS v. STATE OF ASSAM                        833


     1.2. In a case of circumstantial evidence, the                     A
judgment remains essentially inferential. Inferences must
be drawn from established facts, as the circumstances
lead to particular inferences. The Court must draw an
inference with respect to whether the chain of
circumstances is complete, and when the circumstances                   B
therein are collectively considered, the same must lead
only to the irresistible conclusion, that the accused alone
is the perpetrator of the crime in question. [Para 10) [833-
B-C]
                                                                        c
      Hanumant Govind Nargundkar & Anr. v, State of M.P.
  AIR 1952 SC 343: 1952 SCR 1091; State through CBI v.
  Mahender Singh Dahiya AIR 2011 SC 1017: 2011 (1) SCR
. 1104; Ramesh Harijan v. State of U.P. AIR 2012 SC 1979:
  2012 (6) SCR 688; Kali Ram v. State of Himacha/ Pradesh · o
  AIR 1973 SC 2773: 1973 (3) SCR 424; Sharad Birdhichand
  Sarda v. State of Maharashtra AIR 1984 SC 1622: 1985 (1)
  SCR 88; M.G. Agarwal v. State of Maharashtra AIR 1963 SC
  200: 1963 SCR 405 and Babu v. State of Kera/a, (2010) 9
  sec 189: 2010 (9) SCR 1039 - relied on.                   E

       2. It is a settled legal proposition that in a criminal trial,
 the examination of the accused person under Section 313
 Cr.P.C., must adhere to the principles of natural justice,
 i.e. audi alteram partem. This means that the accused. may             F
 be asked to furnish some explanation as regards the
 incriminating circumstances associated with him, and the
 court must take note of such explanation. In a case of
 circumstantial evidence, the same is essential to decide
 whether or not the chain of circumstances is complete.                 G
 No matter how weak the evidence of the prosecution may
 be, it is the duty of the court to examine the accused, and
 to seek his explanation as regards the incriminating
 material that has surfaced against him. The
 circumstances which are not put to the accused in his                  H
    834     SUPREME COURT REPORTS              [2013] 3 S.C.R.


A examination under Section 313 Cr.P.G., cannot be used
  against him and must be excluded from consideration.
  The said statement cannot be treated as evidence within
  the meaning of Section 3 of the Evidence Act, as the
  accused cannot be cross-examined with reference to
B such statement. [Para 12) [844-G-H; 845-A-D]

         Hate Singh Bhagat Singh v. State of Madhya Pradesh
    AIR 1953 SC 468; Shamu Ba/u Chaugule v. State of
    Maharashtra AIR 1976 SC 557; Harijan Megha Jesha v.
c   State of Gujarat AIR 1979 SC 1566; and Sharad Birdhichand
    Sarda v. State of Maharashtra AIR 1984 SC 1622: 1985 (1)
    SCR 88 - relied on.

       3. The mere abscondance of an accused does not
0 lead  to a firm conclusion of his guilty mind. An innocent
  man may also abscond in order to evade arrest.
  Abscondance is in fact relevant evidence, but its
  evidentiary value depends upon the surrounding
  circumstances. [Para 15] [847-C-D]
E
         Bipin Kumar Monda/ v. State of West Bengal AIR 2010
    SC 3638: 2010 (8) SCR 1036; Paramjeet Singh @ Pamma
    v. State of Uttarakhand AIR 2011 SC 200: 2010 (11) SCR
    1064 and Sk. Yusuf v. State of West Bengal AIR 2011 SC
F 2283 : 2011 (8) SCR 83 - relied on.

        Matru alias Girish Chandra v. State of UP. AIR 1971 SC
    1050 and State of M.P. thr. CBI & Ors. v. Pa/tan Mal/ah &
    Ors. AIR 2005 SC 733: 2005 (1) SCR 710 - referred to.
G        4. The FIR lodged has disclosed the previous
    statement of the informant, which can only be used to
    corroborate or contradict the maker of such statement.
    The omission of important facts affecting the probability
    of the case, is a relevant factor under Section 11 of the
H
        SUJIT BISWAS v. STATE OF ASSAM                835


Evidence Act to judge the veracity of the case of the        A
prosecution. [Para 16) [847-F-G]

    Ram Kumar Pandey v. The State of Madhya Pradesh
AIR 1975 SC 1026: 1975 (3) SCR 519 - relied on.
                                                             B
     5. An adverse inference can be drawn against the
accused only and only if the incriminating material stands
fully established, and the accused is not able to furnish
any explanation for the same. However, the accused has
the right to remain silent, as he cannot be forc.Jd to       C
become a witness against himself. [Para 17) [847-H; 848-
A-B]

     6. The instant case is one of circumstantial evidence,
and only two circumstances have appeared against the
appellant. However, the most material piece of evidence, D
which could have been used against the appellant was
not put to the appellant while he was being examined
under Section 313 Cr.P.C. by the trial court, and in view
thereof, the same cannot be taken into consideration.
Hence, it cannot be held that the aforementioned E
circumstances clearly point towards the _guilt of the
appellant, and in light of such a fact situation, the burden
lies not only on the accused to prove his innocence, but
also upon the prosecution, to prove its case beyond all
reasonable doubt. In a case of circumstantial evidence, F
the aforementioned burden of proof on the prosecution
is much greater. The appellant has been in jail for the last
six years, he must be released forthwith, unless wanted
in some other case. [Para 18) [848-C, E-G; 849-A]
                                                             G
                    Case Law Reference:
    1952 SCR 1091           relied on.          Para 6
    2011 (1) SCR 1104       relied on           Para 6
                                                             H
    836      SUPREME COURT REPORTS              [2013] 3 S.C.R.


A         2012 (6) SCR 688       relied on            Para 6

          1973 (3) SCR 424       relied on            Para 7

          1985 (1) SCR 88        relied on            Para 8, 9,
                                                      13
B
          1963 SCR 405          relied on             Para 9

          2010 (9) SCR 1039     relied on             Para 11

          AIR 1953 SC 468       relied on             Para 13
c         AIR 1976 SC 557       relied on             Para 13

          AIR 1979 SC 1566      relied on             Para 13

          2010 (8) SCR 1036     relied on             Para 14
D         AIR 1971 SC 1050      referred to           Para 14

          2005 (1) SCR 710      referred to           Para 14

          2010 (11) SCR 1064    relied on            · Para 15

E         2011 (8) SCR 83       relied on             Para 15

          1975 (3) SCR 519      relied on             Para 16

        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 1323 of 2011.
F
        From the Judgment & Order dated 23.04.2010 of the High
    Court at Gauhati in Crl. Appeal No. 13 (J) of 2010.

        Ratnakar Dash, B.D. Sharma (A.C.) for the Appellant.

G       Vartika S. Waila (for Corporate Law Group) for the
    Respondent.

        The Judgment of the Court was delivered by

        DR. B.S. CHAUHAN, J. 1. This appeal has been preferred
H
         SUJIT BISWAS v. STATE OF ASSAM                        837
               [DR. B.S. CHAUHAN, J.]
against the judgment and order dated 23.4.2010, passed by              A
the High Court of Guwahati in Criminal Appeal No. 13(J) of 2010
rejecting Death Reference No. 1 of 2010 made by the
Additional Sessions Judge (FTC), No. 3, Kamrup, Guwahati on
21.12.2009 in Sessions Case No. 309(K) of 2009, convicting
the appellant under Sections 376(2)(f) and 302 of the Indian           B
Penal Code, 1860 (hereinafter referred to as 'the IPC'),
sentencing him to death. The High Court commuted the death
sentence of the appellant to life imprisonment, with a direction
that the appellant would breathe his last in jail, and that he would
not be given the benefit of remissions etc. under Sections 432         C
and 433-A of the Code of Criminal Procedure, 1973
(hereinafter referred to as the 'Cr.P.C.').

     2. Facts and circumstances giving rise to this appeal are
~                                                                      D
     A. On 17.10.2007 at about 7.00 P.M., Sultana Begum
Khatoon (PW.8), aged 12 years, was enjoying the celebrations
of the festival of Durga Pooja alongwith her sister Sima
Khatoon, aged 3 years, at the Nepali Mandir, Guwahati. The             E
appellant was alleged to have been standing behind them at
such time. After a shortwhile, Sultana Begum Khatoon (PW.8)
noticed that her sister Sima Khatoon was missing, and she also
happened to notice that the appellant had disappeared as well.
Sultana Begum Khatoon (PW.8) thus began to look for her                F
sister, and when she could not find her in the nearby areas, she
went back to her house and informed her brother Guizar Ali
(PW.3) and her parents etc. of the said incident.

    B. Apin Dulal (PW.1) and Guizar Ali (PW.3) therefore
began to search for Sima Khatoon, and while doing so, they             G
came across the appellant and asked him whether he had seen
Sima Khatoon. The appellant allegedly demanded a sum of
Rs.20/- to pay for his evening food, in lieu of showing them the
place where Sima Khatoon could be found. Apin Dulai'(PW.1)
                                                                       H
    838      SUPREME COURT REPORTS                 [2013] 3 S.C.R.

A agreed to pay him the said amount and thus, the appellant
   pointed to a place by the side of a municipal canal. Apin Dulal
   (PW.1) and Guizar Ali (PW.3) thus began to approach the said
   place, and at such time, the appellant ran away and boarded
   a bus. Apin Dulal (PW.1) chased him and managed to catch
8 hold of him, forcing him to get off the bus. Apin Dula I (PW.1)
   and Guizar Ali (PW.3) thereafter succeeded in locating the girl,
   who they found gasping, wrapped in a jute-sack (gunny bag).
   The mouth of the bag had been closed. Sima Khatoon was
   alive, but in a critical condition. She was then taken by her
C brother Guizar Ali (PW.3) to the house. The appellant was also
  taken there. Sima Khatoon was taken to a Nursing Home, and
  then to the Guwahati Medical College where she breathed her
  last at about 1.30 A.M. i.e., in the intervening night of 17/
  18.10.2007.
D
        C. Father of the deceased Sima Khatoon approached the
  Paltan Bazar police station, where a report was endorsed only
  in the General Diary. After the death of Sima Khatoon, her
  father also lodged an FIR at the said police station on
E 18.10.2007. The appellant was taken to the police station by
  the relatives of Sima Khatoon, and he had thus been arrested
  on 17.10.2007 itself.

       D. The post-mortem examination of the dead body of
F Sima Khatoon was conducted by Dr. Pradeep Thakuria, who
  found various injuries on her body, including an injury to her
  vagina. However, the doctor has stated that the vaginal smears
  taken had tested negative for spermatozoa.

       E. The blood stained jute-sack in which the Sima Khatoon
G had been found, the blood stained underwear of the appellant,
  as well as the apparel i.e., frock of Sima Khatoon were taken
  into custody. It was noted that she was not wearing any
  undergarment at the said time. All the seized material objects
  were sent to the Forensic Science Laboratory, and the report
H
         SUJIT BISWAS v. STATE OF ASSAM                       839
               [DR. B.S. CHAUHAN, J.]

received thereafter, revealed that the blood group of the blood      A
found on the underwear of the appellant, was the same as the
blood group of the victim, Sima Khatoon.

     F. After the conclusion of the investigation, a chargesheet
was filed against the appellant under Sections 376(2)(f) and         8
302 IPC. As the appellant denied all charges, criminal trial
commenced.

      G. In the course of the trial, the prosecution examined 10
witnesses in support of its case, and a large number of material
objects were also exhibited. The appellant in his defence,           C
denied his involvement in entirety. In his statement under
Section 313 Cr.P.C., the appellant has stated that he was a
resident of Kuch-Bihar (West Bengal), and that he had come
to Guwahati three years prior to the incident, to earn his
livelihood as a rickshaw puller. On the date of the said incident,   D
when he had gone to the place of occurrence to answer the call
of nature, he had found Sima Khatoon lying on the ground.
When he returned from the said place, and while he had been
waiting near the Nepali Mandir, Apin Dulal (PW.1) and Guizar         E
Ali (PW.3) had asked him whether he had seen one Sima
Khatoon, and thus, he had taken them to the place where Sima
Khatoon had been lying. He had then boarded a bus, but had
been asked by Apin Dulal (PW.1) to get off the same, and many
people had gathered there. They had beaten him severely, and
                                                                     F
had handed him over to the police, though he was completely
innocent.

      H. After the conclusion of the trial, the learned Sessions
Judge vide judgment and order dated 21.12.2009, found the
appellant guilty for the offences punishable under Sections 376      G
(2)(f) and 302 IPC, and awarded him the sentence of death as
has been referred to hereinabove.

    I. The appellant preferred Criminal Appeal No. 13(J) of
2010, which was heard alongwith Death Reference No. 1 of             H
    840      SUPREME COURT REPORTS                 [2013] 3 S.C.R.

A 2010. The High Court disposed of the said appeal vide its
  judgment and order dated 23.4.2010, and commuted the death
  sentence to life imprisonment, with directions as have been
  referred to hereinabove.

B         Hence, this appeal.

       3. Shri Ratnakar Dash, learned senior counsel, Amicus
  Curiae, has submitted that the same is a case of circumstantial
  evidence. The courts below, while convicting the appellant for
C the offences punishable under Sections 376(2)(f) and 302 IPC,
  have not followed the parameters laid down by this court that
  are to be followed for conviction in a case of circumstantial
  evidence. There are material discrepancies which go to the root
  of the case, and the courts below have simply brushed them
  aside, without giving any satisfactory explanation for not
D considering the same in correct perspective. The circumstances
  against the appellant, as per the case of the prosecution are,
  that he had demanded Rs.20/- to point out the place where
  Sima Khatoon had been found and immediately thereafter, he
  had run away from the said place and had boarded a bus. No
E other evidence exists to connect the appellant to the said crime.
  Furthermore, the trial court has put a large number of irrelevant
  and unconnected questions to the appellant under Section 313
  Cr.P.C., while failing to put the most incriminating circumstance
F to the appellant, i.e. questions regarding the fact that the
  underwear of the appellant bore upon it, blood stains of the
  same blood group as that of the victim. Thus, the appellant had
  no opportunity to provide any explanation with respect to the
  same. It was not permissible for the courts below to rely entirely
G on such a circumstance, without verification of the same. The
  High Court was also not competent to issue a direction to the
  effect that the appellant should not be given the benefits
  available under Sections 432 and 433-A Cr.P.C. Therefore, the
  appeal deserves to be allowed.
H
         SUJIT BISWAS v. STATE OF ASSAM                    841
               [DR. B.S. CHAUHAN, J.]
     4. On the contrary, Ms. Vartika Sahay Walia, learned          A
counsel appearing on behalf of the State has opposed the
appeal, contending that the prosecution had fully met the
standard of proof required to convict a person in a case of
circumstantial evidence. The circumstances relied upon by the
courts below have fully established the involvement of the         B
appellant, and the chain of evidence furnished by the
circumstances is also complete. The appe~I thus lacks merit,
and is liable to be rejected.

     5. We have considered the rival submissions made by           C
learned counsel and perused the record.

      6. Suspicion, however grave it may be, cannot take the
place of proof, and there is a large difference between
something that 'may be' proved, and something that 'will be
proved'. In a criminal trial, suspicion no matter how strong,      D
canl'}ot and must not be permitted to take place of proof. This
is for the reason that the mental distance betWeen 'may be' and
'must be' is quite large, and divides vague conjectures from
sure conclusions. In a criminal case, the court has a duty to
ensure that mere conjectures or suspicion do not take the place    E
of legal proof. The large distance between 'may be' true and
'must be' true, must be covered by way of clear, cogent and
unimpeachable evidence produced by the prosecution, before
an accused is condemned as a convict, and the basic and
golden rule must be applied. In such cases, while keeping in       F
mind the distance between 'may be' true and 'must be' true,
the court must maintain the vital distance between mere
conjectures and sure conclusions to be arrived at, on the
touchstone of dispassionate judicial scrutiny, based upon a        G
complete and comprehensive appreciation of all features of the
case, as well as the quality and credibility of the evidence
brought on record. The court must ensure, that miscarriage of
justice is avoided, and if the facts and circumstances of a case
so demand, then the benefit of doubt must be given to the          H
    842       SUPREME COURT REPORTS                 (2013) 3 S.C.R.


A accused, keeping in mind that a reasonable doubt is not an
  imaginary, trivial or a merely probable doubt, but a fair doubt
  that is based upon reason and common sense. (Vide:
  Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR
  1952 SC 343; State through CBI v. Mahender Singh Dahiya,
B AIR 2011 SC 1017; and Ramesh Harijan v. State of UP., AIR
  2012 SC 1979).

        7. In Kali Ram v. State of Himachal Pradesh, AIR 1973
    SC 2773, this Court observed as under:
c         "Another golden thread which runs through the web of the
          administration of justice in criminal cases is that if two
          views are possible on the evidence adduced in the case
          one pointing to the guilt of the accused and the other to
          his innocence, the view which is favourable to the accused
D         should be adopted. This principle has a special relevance
          in cases where in the guilt of the accused is sought to be
          established by circumstantial evidence."

      8. In Sharad Birdhichand Sarda v. State of Maharashtra,
E AIR 1984 SC 1622, this Court held as under:

        "The facts so established should be consistent only with
        the hypothesis of the ?guilt of the accused. There should
        not be explainable on any other hypothesis except that
F       the accused is guilty. The circumstances should be of a
        conclusive nature and tendency. 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
G       probability the act must have been done by the accused."

       9. In M.G. Agarwal v. State of Maharashtra, AIR 1963 SC
  200, this Court held, that if the circumstances proved in a case
  are consistent either with the innocence of the accused, or with
H his guilt, then the accused is entitled to the benefit of doubt.
          SUJIT BISWAS v. STATE OF ASSAM                     843
                [DR. B.S. CHAUHAN, J.]
When it is held that a certain fact has been proved, then the        A
question that arises is whether such a fact leads to the inference
of guilt on the part of the accused person or not, and in dealing
with this aspect of the problem, benefit of doubt must be given
to the accused, and a final inference of guilt against him must
be drawn only if the proved fact is wholly inconsistent with the     B
innocence of the accused, and is entirely consistent with his
guilt.

     Similarly, in Sharad Birdhichand Sarcia (Supra), this Court
held as under:                                                       c
           "Graver the crime, greater should be the standard
     of proof. An accused may app~ar to be guilty on the
    .basis of suspicion but that cannot amount to legal proof.
     When on the evidence two possibilities are available or
                                                                     0
     open, one which goes in the favour of the prosecution and
     the other benefits an accused, the accused is
     undoubtedly entitled to the benefit of doubt. The principle
     has special relevance where the guilt or the accused is
     sought to be established by circumstantial evidence."
                                                                     E
     10. Thus, in view of the above, the Court must consider a
case of circumstantial evidence in light of the aforesaid settled
legal propositions. In a case of circumstantial evidence, the
judgment remains essentially inferential. Inferences are drawn
from established facts, as the circumstances lead to particular      F
inferences. The Court must draw an inference with respect to
whether the chain of circumstances is complete, and when the
circumstances therein are collectively considered, the same
must lead only to the irresistible conclusion, that the accused
alone is the perpetrator of the crime in question. All the           G
circumstances so established must be of a conclusive nature,
and consistent only with the hypothesis of the guilt of the
accused.

     11. This Court in Babu v. State of Kera/a, (2010) 9 SCC         H
    844       SUPREME COURT REPORTS                   [2013] 3 S.C.R.

A 189 has dealt with the doctrine of innocence elaborately, and
  held as under:

           "27. Every accused is presumed to be innocent unless
           the guilt is proved. The presumption of innocence is a
B          human right. However, subject to the statutory
           exceptions, the said principle forms the basis of criminal
          jurisprudence. For this purpose, the nature of the offence,
          its seriousness and gravity thereof has to be taken into
          consideration. The courts must be on guard to see that
c          merely on the application of the presumption, the same
          may not lead to any injustice or mistaken conviction.
           Statutes like the Negotiable Instruments Act, 1881; the
           Prevention of Com1ption Act, 1988; and the Terrorist and
          Disruptive Activities (Prevention) Act, 1987, provide for
D         presumption of guilt if the circumstances provided in
          those statutes are found to be fulfilled and shift the
          burden of proof of innocence on the accused. However,
          such a presumption can also be raised only when certain
          foundational facts are established by the prosecution.
E          There may be difficulty in proving a negative fact.

         28. However, in cases where the statute does not provide
         for the burden of proof on the accused, it always lies on
         the prosecution. It is only in exceptional circumstances,
         such as those of statutes as referred to hereinabove, that
F
         the burden of proof is on the accused. The statutory
         provision even for a presumption of guilt of the accused
         under a particular statute must meet the tests of
         reasonableness and liberty enshrined in Articles 14 and
         21 of the Constitution."
G
         12. It is a settled legal proposition that in a criminal trial,
    the purpose of examining the accused person under Section
    313 Cr.P.C., is to meet the requirement of the principles of
    natural justice, i.e. audi alterum partem. This means that the
H
        SUJIT BISWAS v. STATE OF ASSAM                    845
              [DR. B.S. CHAUHAN, J.]
accused may be asked to furnish some explanation as regards       A
the incriminating circumstances associated with him, and the
court must take note of such explanation. In a case of
circumstantial evidence, the same is essential to decide
whether or not the chain of circumstances is complete. No
matter how weak the evidence of the prosecution may be, it is     B
the duty of the court to examine the accused, and to seek his
explanation as regards the incriminating material that has
surfaced against him. The circumstances which are not put
to the accused in his examination under Section 313
Cr.P.C., cannot be used against him and must be excluded          C
from consideration. The said statement cannot be treated as
evidence within the meaning of Section 3 of the Evidence Act,
as the accused cannot be cross-examined with reference to
such statement.
                                                                  D
     13. In Hate Singh Bhagat Singh 'v. State of Madhya
Pradesh, AIR 1953 SC 468, this Court held, that any
circumstance in respect of which an accused has not been
examined under Section 342 of the Code of Criminal
Procedure, 1898 (corresponding to Section 313 Cr.P.C.},           E
can"not be used against him. The said judgment has
subsequently been followed in catena of judgments of this court
uniformly, taking the view that unless a circumstance against
an accused is put to him in his examination, the same cannot
be used against him. (See also: Shamu Balu ChaL!gu/e v.           F
State of Maharashtra, AIR 1976 SC 557; Harijan Megha
Jesha v. State of Gujarat, AIR 1979 SC 1566; and Sharad
Birdhichand Sarda (Supra).

    14. Whether the abscondance of an accused can be taken
as a circumstance against him has been considered by this         G
Court in Bipin Kumar Monda/ v. State of West Bengal, AIR
2010 SC 3638, wherein the Court observed:

     "27. In Matru alias Girish Chandra v. State of U.P., AIR
                                                                  H
    846       SUPREME COURT REPORTS               [2013) 3 S.C.R.


A         1971 SC 1050, this Court repelled the submissions made
          by the State that as after commission of the offence the
          accused had been absconding, therefore, the inference
          can be drawn that he was a guilty person observing as
          under:
B
                 '19. The appellant's conduct in absconding was
                 also relied upon. Now, mere absconding by itself
                 does not necessarily lead to a firm conclusion of
                 guilty mind. Even an innocent man may feel
                 panicky and try to evade arrest when wrongly
c                suspected of a grave crime such is the instinct of
                 self-preservation. The act of absconding is no
                 doubt relevant piece of evidence to be considered
                 along with other evidence but its value would ·
                 always depend on the circumstances of each
D
                case. Normally the courts are disinclined to attach
                much importance to the act of absconding,
                treating it as a very small item in the evidence for
                sustaining conviction. It can scarcely be held as
E               a determining link in completing the chain af
                circumstantial evidence which must admit of no
                other reasonable hypothesis than that of the guilt
                of the accused. In the present case the appellant
                was with Ram Chandra till the FIR was lodged. If
F               thereafter he felt that he was being wrongly
                suspected and he tried to keep out of the way we
                do not think this circumstance can be considered
                to be necessarily evidence of a guilty mind
                attempting to evade justice. It is not inconsistent
G               with his innocence.'

      28. Abscondence by a person against whom FIR has
      been lodged, having an apprehension of being
      apprehended by the police, cannot be said to be
      unnatural. Thus, in view of the above, we do not find any
H
         SUJIT BISWAS v. STATE OF ASSAM                   847
               [DR. S.S. CHAUHAN, J.]

    force in the submission made by Shri Bhattacharjee that A
    mere absconding by the appellant after commission of
    the crime and remaining untraceable for such a long time
    itself can establish his guilt. Absconding by itself is not
    conclusive either of guilt or of guilty conscience."
                                                                  8
     While deciding the said case, a large number of earlier
judgments were also taken into consideration by the Court,
including Matru (supra); and State of M.P: thr. CBI & Ors. v.
Pa/tan Mal/ah & Ors., AIR 2005 SC 733.

      15. Thus, in a case of this nature, the mere abscondance
                                                                  c
of an accused does not lead to a firm conclusion of his guilty
mind. An innocent man may also abscond in order to evade
arrest, as in light of such a situation, such an action may be
part of the natural conduct of the accused. Abscondance is in
                                                                  0
fact relevant evidence, but its evidentiary value depends upon
the surrounding circumstances, and hence, the same must only
be taken as a minor item in evidence for sustaining conviction.
(See: Paramjeet Singh @ Pamma v. State of Uttarakhand,
AIR 2011 SC 200; and Sk. Yusuf v. State of West Bengal, AIR       E
2011 SC 2283).

     16. Undoubtedly, the FIR lodged has disclosed the
previous statement of the informant which can only be used to
other corroborate or contradict the maker of such statement.
However, in the event that the informant is a person who claims F
to know the facts, and is also closely related to the victim, it is
expected that he would have certainly mentioned in the FIR, all
such relevant facts. The omission of important facts affecting
the probability of the case, is a relevant factor under Section
11 of the Evidence Act to judge the veracity of the case of the G
prosecution. (Vide: Ram. Kumar Pandey v. The State of
Madhya Pradesh, AIR 1975 SC 1026).

     17. An adverse inference can be drawn against the
                                                                  H
    848      SUPREME COURT REPORTS                 (2013) 3 S.C.R.


A   accused only and only if the incriminating material stands fully
    established, and the accused is not able to furnish any
    explanation for the same. However, the accused has the right
    to remain silent, as he cannot be forced to become a witness
    against himself.
B
          18. The present case is required to be examined in light
    of the aforesaid settled legal propositions. The instant is one
    of circumstantial evidence, and only two circumstances have
    appeared against the appellant, namely,
c       I. That he had been able to point out the place where Sima ·
    Khatoon was lying, after his demand for Rs.20/- had been
    accepted; and

        II. That subsequently, he had left the said place and
D   boarded a bus immediately.

       The aforesaid circumstances in isolation, point out
  conclusively, that the appellant has in fact committed the said
  offence. Furthermore, the most material piece of evidence'
E which could have been used against the appellant was that the
  blood stains found on his underwear matched the blood group
  of Sima Khatoon. However, the said circumstance was not put
  to the appellant while he was being examined under Section
  313 Cr.P.C. by the trial court, and in view thereof, the same
F cannot be taken into consideration. Hence, even by a stretch
  of the imagination, it cannot be held that the aforementioned
  circumstances clearly point towards the guilt of the appellant,
  and in light of such a fact situation, the burden lies not only on
  the accused to prove his innocence, but also upon the
G prosecution, to prove its case beyond all reasonable doubt. In
  a case of circumstantial evidence, the aforementioned burden
  of proof on the prosecution is much greater.

      In view of the above, the appeal succeeds and is allowed.
H The judgments and orders passed by the courts below
           SUJIT BISWAS v. STATE OF ASSAM                       849
                 [DR. 8.S. CHAUHAN, J.]
  impugned before us, are set aside. The appellant has been in         A
  jail for the last six years, he must be released forthwith, unless
. wanted in some other case.

      Before parting with the case, we feel that it is our ~uty to
 appreciate the services rendered by Shri Ratnakar Dash,               8
 learned senior counsel, who acted as amicus curiae.

 8.8.B.                                           Appeal allowed.