SUNITAversusSTATE OF HARYANA

                         [2019] 10 S.C.R. 779                           779


                             SUNITA                                     A
                                 v.
                      STATE OF HARYANA
                 (Criminal Appeal No. 546 of 2010)
                           JULY 30, 2019                                B
     [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
       Penal Code, 1860 – s.302 – Murder – Prosecution case was
that one dead body was found burning on ‘Bitora’ (conical storage
of cow dung cakes) – Post-mortem of the remains of body was
                                                                        C
conducted – It was found to be a dead body of a female – DNA test
was conducted – The bones and tissues of the dead body matched
with DNA profile of PW-3 and his wife – It was body of ‘S’, daughter
of PW-3 – FIR was lodged – As per prosecution, deceased and the
appellant were familiar with each other and both had gone to a
village together – Further, PW-4 had seen appellant with the            D
deceased and her two children on 03.01.2004 going towards a
village and when he was returning back he saw appellant on a
Scooty with a gunny bag on it footrest – PW-5 also deposed that he
saw the deceased along with her two minor children in the house of
the appellant at about 5 pm on 03.01.2004 – Appellant was convicted
                                                                        E
for murder – The appeal against the said judgment was dismissed
by the High Court – On appeal, held: High Court required appellant
u/s. 106 of the Evidence Act to explain the circumstances under
which the body parts of the deceased came to be recovered from the
burning ‘Bitora’ – The finding of the High Court was erroneous
inasmuch as ‘Bitora’ was not in possession of the appellant much        F
less exclusive and it was located in an open field of another person
– Further, such explanation would be necessary, if the prosecution
had discharged the initial onus on it – Therefore, the appellant was
not required to explain the circumstances of body parts being found
in ‘Bitora’ – Further, PW-4, 5 were inimical towards the appellant
                                                                        G
inasmuch as she had filed a suit for claiming a estate, a right which
was denied by the said witnesses – Thus, their statements cannot be
relied upon readily in absence of corroboration – The other evidence
of the prosecution was of extra-judicial confession made to PW-12,
which is again untenable – There was no blood mark on the Scooty
                                                                        H
                                779
780            SUPREME COURT REPORTS                       [2019] 10 S.C.R.


A     recovered – Therefore, the only evidence against appellant was of
      last seen by PW-4 and 5 and such evidence does not complete the
      chain of circumstances so as to maintain conviction of the appellant
      for an offence u/s. 302 IPC – Thus, the appellant acquitted of the
      charges levelled against her – Evidence Act, 1872 – s.106.
B           Allowing the appeal, the Court
            HELD : 1. The prosecution story is that the deceased and
      the appellant planned to visit a village together to wish the birth
      of nephew of the deceased sometime back. On way, they stopped
      at another Village. The deceased had no occasion to be in that
C     Village unless she accompanies appellant who is cousin of her
      husband. Therefore, the needle of suspicion is on the appellant.
      [Para 13] [787-E-F]
             2. According to (PW-3), height of deceased ‘S’ was 5’
      whereas as per (PW-4), the lady with the appellant at the bus
D     stop was 5’7". There is a margin of approximation in the height
      of the deceased stated by (PW-3) and (PW-4), but such discrepancy
      is a factor to test the veracity of the statement of (PW-4). (PW-4)
      deposed that he had seen the appellant with a gunny bag placed
      on the footrest of a Scooty driven by the appellant. The carrying
      of a weight of a dead body on a Scooty is not believable. Still
E     further, (PW-4) has left his father, after his father started living
      with appellant and started staying with his grandfather (PW-5).
      There is a civil suit (Ex. D-5) filed by the appellant to claim estate
      of father of PW-4. Therefore, such statement has to be taken
      with pinch of salt as it is by a person, who is inimical to the accused.
F     The statement of (PW-5) is only to the fact that he had seen the
      dead body recovered from ‘Bitora’ (conical storage of cow dung
      cakes). Though, he deposed that he had seen the deceased on
      January 3, 2004 in the house of appellant but again this is a
      statement of a witness who is at loggerhead with the appellant.
      Therefore, such statement cannot be relied upon readily in the
G     absence of any corroboration. Therefore, the only evidence
      against the appellant is of last seen by (PW-4) at 2 pm and that of
      (PW-5) at 5 pm and later in the night, appellant with a gunny bag
      on her Scooty by PW-4 at 2 am. Such evidence does not complete

H
                SUNITA v. STATE OF HARYANA                              781


the chain of circumstances so as to maintain conviction of              A
the appellant for an offence under Section 302 IPC. [Para 15]
[788-B-E]
      3. The High Court referred to Section 106 of the Indian
Evidence Act, 1872 to hold that the appellant was required to
explain the circumstances under which the body parts of the             B
deceased came to be recovered from the burning ‘Bitora’ . This
Court finds that finding of the High Court is erroneous inasmuch
as ‘Bitora’ was not in possession of the appellant much less
exclusive. It was located in an open area in the field of ‘RS’. Still
further, such explanation would be necessary, if the prosecution
has discharged the initial onus on it. Therefore, the appellant         C
was not required to explain the circumstances of body parts being
found in ‘Bitora’ in the village where she resided with father of
PW-4. The other evidence of the prosecution is of extra-judicial
confession made to (PW-12) brother-in-law of father of deceased.
Such statement is again untenable. The prosecution has not              D
produced on record any special circumstance as to give confidence
to the appellant to make extra judicial confession before (PW-
12). The other evidence is recovery of Scooty on the basis of
disclosure statement made by the appellant. Apart from statement
of (PW-4) that he has seen the appellant riding Scooty with gunny
bag, there is no other evidence of use of Scooty in a crime. There      E
is no blood mark on the Scooty or any other evidence that it was
used by the appellant in disposing of the body. The prosecution
has failed to prove at what place, victim was murdered. There is
no evidence in the manner of cause of death or place of death
available on record. Therefore, this Court finds that the               F
prosecution has not been able to prove that it is the appellant
and the appellant alone who is guilty of the offence of murder of
victim. [Para 17] [788-G-H; 789-A-D]
      Satpal v. State of Haryana (2018) 6 SCC 610; Asar
      Mohammad v. State of U.P. 2018 SCC OnLine SC 2179                 G
      – relied on.
                       Case Law Reference
(2018) 6 SCC 610               relied on               Para 10

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782            SUPREME COURT REPORTS                        [2019] 10 S.C.R.


A           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 546 of 2010.
            From the Judgment and Order dated 25.03.2008 of the High
      Court of the State of Punjab and Haryana at Chandigarh in Criminal
      Appeal No. 241-DB of 2006.
B           Shaurya Sahay, Amit Kumar, Advs. for the Appellant.
            Raj Singh Rana, Pankaj Kumar Singh, Sanjeet Paliwal, Avisek
      Minj, Vishwa Pal Singh, Advs. for the Respondent.
            The Judgment of the Court was delivered by
C           HEMANT GUPTA, J.
            1. The appellant Sunita stands convicted for the murder of Sushila,
      wife of Shish Pal, by the learned Additional Sessions Judge, Karnal on
      January 13, 2006. The appeal against the said judgment was dismissed
      on March 25, 2008.
D
             2. Shish Pal is son of Dharma and resident of Village Dadola,
      District Panipat. Shish Pal and Sushila had two children, one son Sagar
      aged about 3½ years and one daughter Shivani aged about 1½ years.
      The accused Sunita is daughter of Roshan, cousin of father of Shish Pal,
      who was also a resident of Village Dadola. Roshan had three daughters,
E     the other two being Santosh and Geeta.
             3. Pirthi Singh (PW-5) is resident of Village Kailash, which is 55
      kms. from Village Dadola on way to Village Sangatehra (UP), the paternal
      village of Sushila, the deceased. Pirthi Singh’s eldest son Baburam was
      married with Shiksha Devi. She died about 18-20 years back. Baburam
F     had a son Neeraj and a daughter Nirjesh Kumari from his first wife.
      Sunita is alleged to have married Baburam after death of his first wife.
      The said fact is disputed by Pirthi Singh (PW-5) though he admits that
      accused Sunita was living with his son Baburam and had given birth to a
      son. It is admitted by learned counsel for the appellant that Sangatehra,
      a village in Uttar Pradesh, is about 100 kms. from Dadola and Village
G     Kailash is about 55 kms. from Dadola on way of Sangatehra.
             4. The prosecution case is that one Munshi Ram, son of Ram
      Diwaya, resident of Village Kailash, lodged a report (Ex.P/24) at 8:30
      am on January 4, 2004. He stated that he is a tenant on payment of 1/3rd
      batai over the land of Baburam, son of Pirthi Singh (PW-5). At about 6
H
                 SUNITA v. STATE OF HARYANA                                783
                     [HEMANT GUPTA, J.]

am, he was going towards his field and on his way, Ram Lubhaya, another    A
co-villager, told him that someone has set his ‘Bitora’ (conical storage
of cow dung cakes) on fire. He saw many persons standing there. He
found that a foul smell was coming from the fire and noticed the burning
of a dead body. On the basis of his statement, the Police went to the
place of occurrence. The inquest report (Ex.P/25) reflected burning of
                                                                           B
a dead human body. SI Shamsher Singh (PW-14) went to the place of
occurrence and made request for postmortem of the remains of the
body to Senior Medical Officer, Civil Hospital, Karnal. However, the
Medical Officer sent the flesh and bones to PGIMS, Rohtak vide (Ex.P/
8) for opinion by the Board of doctors. On January 5, 2004, the
postmortem was conducted. The report is Ex.P/26. It was found to be a      C
dead body of a female. It was on February 4, 2004, the blood samples
of Isham Singh (PW-3) (father of Sushila) and Kanti (mother of Sushila)
were taken and sent for DNA test. Report of such DNA test is Ex. P/
35 dated June 1, 2004 which shows that bones and tissues match with
DNA profile of Kanti and Isham Singh (PW-3). On the basis of report,
                                                                           D
a formal FIR (Ex.P/10) was lodged on June 15, 2004 by Isham Singh.
       5. On January 9, 2004, Shish Pal, husband of the deceased Sushila
informed Isham Singh (PW-3) that he had seen the photographs of his
missing children, Sagar and Shivani, in a newspaper, said to be with
Manav Sewa Sangh, Panipat. Shish Pal also informed that Sushila was
not with the children in Panipat. Isham Singh reached Village Dadola       E
but, in the meantime, Shish Pal got the children back from Panipat.
      6. Isham Singh has appeared as PW-3 and deposed that, on January
16, 2004, he came to know that one lady was burnt in ‘Bitora’ at Village
Kailash. He went to Village Kailash along with his brother-in-law
Kashmir Singh (PW-12) and came to know that aforesaid incident has         F
taken place during the intervening night of 3rd/4th January, 2004. The
accused was the suspect.
       7. The investigations were conducted by SI Shamsher Singh (PW-
14), SI Ramesh Chand (PW-19) and Inspector Baljinder Singh (PW-
20). After completion of the investigations, the appellant was made to     G
stand trial. On an application filed by the prosecution, one Ashok Kumar
and Seth Pal were made to stand trial but both the co-accused stand
acquitted by the trial Court itself.
       8. Learned counsel for the appellant argued that the prosecution
story is unbelievable and full of contradictions. The entire prosecution   H
784               SUPREME COURT REPORTS                       [2019] 10 S.C.R.


A     case is the evidence of last seen by Neeraj (PW-4), son of Baburam and
      Pirthi Singh (PW-5), father of Baburam. It is argued that both the persons
      are inimical towards the appellant inasmuch as the appellant has filed a
      suit for claiming estate of Baburam as his wife which right is denied by
      the said witnesses. It is argued that Neeraj (PW-4) is said to have seen
      the appellant with the deceased and her two children on January 3, 2004
B
      at the turn from G.T. Road towards his village when he was returning
      back from Karnal at about 2 pm. Neeraj (PW-4) further deposed that at
      about 2 am in the intervening night of 3rd/4th January, 2004, when he got
      up for urinating, he found Sunita going on a Scooty with a gunny bag
      placed on its footrest. In the morning, he saw ‘Bitora’ situated in the
C     field of Ratan Singh burning from a distance. At about 9 am, he saw
      crowd gathered there and he along with his three friends went there.
      The Police also reached at the spot. Part of the cross-examination
      related to the role of other two co-accused Ashok Kumar and Seth Pal
      which is not relevant at this stage. He deposed that lady with the appellant
      was of a height of 5’7". The father of deceased Sushila, Isham Singh
D
      (PW-3) has deposed that Sushila was 5’ in height. It is, thus, argued that
      had the witness seen the deceased with the appellant, he would have
      noticed the height correctly. It is also argued that Neeraj (PW-4) has
      not identified Sushila when he allegedly saw her with the appellant which
      is quite unbelievable as he was a step son of the appellant. It is further
E     argued that it is impossible to ride a Scooty with a dead body in a gunny
      bag on the footrest, therefore, prosecution story is full of inherent
      improbabilities.
             9. Learned counsel for the appellant submitted that Pirthi (PW-5)
      deposed that he has seen the deceased along with her two minor children
F     in the house of the appellant at about 5 pm on January 3, 2004. However,
      in cross-examination, he admits that his statement was recorded 7-8
      days after burning of ‘Bitora’ but he has not stated that he has seen the
      deceased with minor children in the house of Sunita.
            10. Learned counsel for the appellant relied upon Satpal v. State
G     of Haryana1 to contend that the evidence of Neeraj (PW-4) and Pirthi
      Singh (PW-5) is weak evidence and by itself is not sufficient to maintain
      conviction. There is no other evidence to link the appellant with the
      death of Sushila. It has been held that evidence of last seen theory is a

      1
H         (2018) 6 SCC 610
                    SUNITA v. STATE OF HARYANA                                  785
                        [HEMANT GUPTA, J.]

weak kind of evidence by itself to convict upon the same singularly. The        A
Court held as under:-
         “6. We have considered the respective submissions and the
         evidence on record. There is no eyewitness to the occurrence
         but only circumstances coupled with the fact of the deceased
         having been last seen with the appellant. Criminal                     B
         jurisprudence and the plethora of judicial precedents leave
         little room for reconsideration of the basic principles for
         invocation of the last seen theory as a facet of circumstantial
         evidence. Succinctly stated, it may be a weak kind of evidence
         by itself to found conviction upon the same singularly. But
         when it is coupled with other circumstances such as the time           C
         when the deceased was last seen with the accused, and the
         recovery of the corpse being in very close proximity of time, the
         accused owes an explanation under Section 106 of the Evidence
         Act with regard to the circumstances under which death may
         have taken place. If the accused offers no explanation, or furnishes   D
         a wrong explanation, absconds, motive is established, and there is
         corroborative evidence available inter alia in the form of recovery
         or otherwise forming a chain of circumstances leading to the only
         inference for guilt of the accused, incompatible with any possible
         hypothesis of innocence, conviction can be based on the same. If
         there be any doubt or break in the link of chain of circumstances,     E
         the benefit of doubt must go to the accused. Each case will
         therefore have to be examined on its own facts for invocation of
         the doctrine.”
                                                       (Emphasis Supplied)
                                                                                F
      11. In another Judgment, this Court in Asar Mohammad v. State
of U.P.2, reiterated when conviction on the basis of circumstantial
evidence can be maintained. The Court held that:-
         “9. Before proceeding to consider the rival submissions, be it noted
         that in the present case, no direct evidence has been produced by      G
         the prosecution regarding the involvement of the appellants in the
         commission of the crime. The prosecution rests its case solely on
         circumstantial evidence. The legal position as to how such matter

2
    2018 SCC OnLine SC 2179                                                     H
786             SUPREME COURT REPORTS                         [2019] 10 S.C.R.


A           should be examined has been expounded in Padala Veera
            Reddy v. State of Andhra Pradesh3 in the following words:—
                “10. ….. This Court in a series of decisions has consistently
                held that when a case rests upon circumstantial evidence such
                evidence must satisfy the following tests:
B                  (1) the circumstances from which an inference of guilt is
                   sought to be drawn, must be cogently and firmly established;
                   (2) those circumstances should be of a definite tendency
                   unerringly pointing towards guilt of the accused;

C                  (3) the circumstances, taken cumulatively, should form a
                   chain so complete that there is no escape from the
                   conclusion that within all human probability the crime was
                   committed by the accused and none else; and
                   (4) the circumstantial evidence in order to sustain conviction
D                  must be complete and incapable of explanation of any other
                   hypothesis than that of the guilt of the accused and such
                   evidence should not only be consistent with the guilt of the
                   accused but should be inconsistent with his innocence.
                   (See Gambhir v. State of Maharashtra4.)
                   11. See also Rama Nand v. State of Himachal
E
                   Pradesh5, Prem Thakur v. State of Punjab6, Earabhadrapa
                   alias Krishnappa v. State of Karnataka7, Gian Singh v. State
                   of Punjab8, Balwinder Singh v. State of Punjab.9"
                10. In Mulakh Raj v. Satish Kumar10, the Court succinctly
                restated the legal position in paragraph 4 as under:
F
                   “4. ……Undoubtedly this case hinges upon circumstantial
                   evidence. It is trite to reiterate that in a case founded on
                   circumstantial evidence, the prosecution must prove all the
                   circumstances connecting unbroken chain of links leading
      3
        1989 Supp (2) SCC 706
G     4
        (1982) 2 SCC 351
      5
        (1981) 1 SCC 511
      6
        (1982) 3 SCC 462
      7
        (1983) 2 SCC 330
      8
        1986 Supp SCC 676
      9
        (1987) 1 SCC 1
      10
H        (1992) 3 SCC 43
                  SUNITA v. STATE OF HARYANA                                     787
                      [HEMANT GUPTA, J.]

              to only one inference that the accused committed the crime.        A
              If any other reasonable hypothesis of the innocence of the
              accused can be inferred from the proved circumstances,
              the accused would be entitled to the benefit. What is required
              is not the quantitative but qualitative, reliable and probable
              circumstances to complete the chain connecting the accused
                                                                                 B
              with the crime. If the conduct of the accused in relation to
              the crime comes into question the previous and subsequent
              conduct are also relevant facts. Therefore, the absence of
              ordinary course of conduct of the accused and human
              probabilities of the case also would be relevant. The court
              must weigh the evidence of the cumulative effect of the            C
              circumstances and if it reaches the conclusion that the
              accused committed the crime, the charge must be held
              proved and the conviction and sentence would follow.”
       12. We have heard the learned counsel for the parties and find
merit in the argument raised by learned counsel for the appellant.               D
        13. As per prosecution story, the parental village of Sunita is Dadola
i.e. same village as that of Shish Pal, husband of the deceased. Sunita is
daughter of cousin of father of Shish Pal, therefore, she is familiar with
the deceased. Sunita was living with Baburam in Village Kailash, which
is at distance of about 55 kms. from Dadola. The prosecution story is            E
that the deceased and the appellant planned to visit Sangatehra together
to wish the birth of nephew of the deceased sometime back. Therefore,
both went from Village Dadola to Village Sangatehra and on way stopped
at Village Kailash. The deceased had no occasion to be in Village Kailash
unless she accompanies Sunita who is cousin of her husband. Therefore,
the needle of suspicion is on the appellant.                                     F

       14. Sushila went missing on January 3, 2004 but no missing report
was lodged. Isham Singh (PW-3), father of the deceased, lodged the
FIR on June 15, 2004 i.e. after the identity of the dead body of his
daughter was established. He deposed that Roshan, father of the
accused-appellant was looked after by his daughter and that the motive           G
to take the life of the deceased was that appellant apprehended that her
father may give his property to Sushila. Roshan has appeared as DW-
3 who deposed that he was not looked after by the deceased. Therefore,
the primary motive is not made out. The children of the deceased were
found at Manav Sewa Sangh, Panipat. Such fact came to the notice of              H
788            SUPREME COURT REPORTS                         [2019] 10 S.C.R.


A     Shish Pal, husband of the deceased from an advertisement but who left
      the children at Manav Sewa Sangh has not come on record.
              15. According to Isham Singh (PW-3), Sushila’s height was 5’
      whereas as per Neeraj (PW-4), the lady with the appellant at the bus
      stop was 5’7". There is a margin of approximation in the height of the
B     deceased stated by Isham Singh (PW-3) and Neeraj (PW-4), but such
      discrepancy is a factor to test the veracity of the statement of Neeraj
      (PW-4). Neeraj (PW-4) deposed that he had seen the appellant with a
      gunny bag placed on the footrest of a Scooty driven by the appellant.
      The carrying of a weight of a dead body on a Scooty is not believable.
      Still further, Neeraj (PW-4) has left his father Baburam after his father
C     started living with Sunita and started staying with his grandfather Pirthi
      Singh (PW-5). There is a civil suit (Ex. D-5) filed by the appellant to
      claim estate of Baburam. Therefore, such statement has to be taken
      with pinch of salt as it is by a person, who is inimical to the accused.
      The statement of Pirthi Singh (PW-5) is only to the fact that he had seen
D     the dead body recovered from ‘Bitora’. Though, he deposed that he
      had seen the deceased on January 3, 2004 in the house of Sunita but
      again this is a statement of a witness who is at loggerhead with the
      appellant. Therefore, such statement cannot be relied upon readily in the
      absence of any corroboration. Therefore, the only evidence against the
      appellant is of last seen by Neeraj (PW-4) at 2 pm and that of Pirthi
E     Singh (PW-5) at 5 pm and later in the night, Sunita with a gunny bag on
      her Scooty by Neeraj at 2 am. Such evidence does not complete the
      chain of circumstances so as to maintain conviction of the appellant for
      an offence under Section 302 IPC.
             16. The prosecution has been able to prove only death of Sushila
F     on the basis of DNA test from the body recovered from ‘Bitora’ in the
      Village Kailash. Even if the statement of Neeraj (PW-4) is relied upon
      that he may not be aware of the identity of the deceased being resident
      of another village but the fact at best is that the inference can be drawn
      that he has lastly seen the deceased with the appellant at 2 pm on January
G     3, 2004.
            17. The High Court referred to Section 106 of the Indian Evidence
      Act, 1872 to hold that the appellant was required to explain the
      circumstances under which the body parts of the deceased came to be
      recovered from the burning ‘Bitora’ at Village Kailash. We find that
H     finding of the High Court is erroneous inasmuch as ‘Bitora’ was not in
                  SUNITA v. STATE OF HARYANA                                     789
                      [HEMANT GUPTA, J.]

possession of the appellant much less exclusive. It was located in an            A
open area in the field of Ratan Singh. Still further, such explanation would
be necessary, if the prosecution has discharged the initial onus on it.
Therefore, the appellant was not required to explain the circumstances
of body parts being found in ‘Bitora’ in the village where she resided
with Baburam. The other evidence of the prosecution is of extra-judicial
                                                                                 B
confession made to Kashmir Singh (PW-12) brother-in-law of father of
Sushila. Such statement is again untenable. The prosecution has not
produced on record any special circumstance as to give confidence to
the appellant to make extra judicial confession before Kashmir Singh
(PW-12). The other evidence is recovery of Scooty on the basis of
disclosure statement made by the appellant. Apart from statement of              C
Neeraj (PW-4) that he has seen the appellant riding Scooty with gunny
bag, there is no other evidence of use of Scooty in a crime. There is no
blood mark on the Scooty or any other evidence that it was used by the
appellant in disposing of the body. The prosecution has failed to prove at
what place, Sushila was murdered. There is no evidence in the manner
                                                                                 D
of cause of death or place of death available on record. Therefore, we
find that the prosecution has not been able to prove that it is the appellant
and the appellant alone who is guilty of the offence of murder of Sushila.
       18. Consequently, granting benefit of doubt to the appellant, the
appeal is allowed. The appellant is acquitted of the charges levelled
against her. The bail bonds shall stand discharged. She be set at liberty,       E
if not wanted in any other case.

Ankit Gyan                                                     Appeal allowed.

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