How to appreciate evidence in the Murder case in case of circumstantial evidence?

Before analyzing the factual aspect, it may be stated that for a crime to be proved, it is not necessary that the crime must be seen to have been committed and must in all circumstances to be proved by direct, ocular evidence, by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.

7. A reference may be made to a decision in Sharad Birdhi Chand Sarda v. State of Maharashtra, 1 Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in the prosecution cannot be cured by a false defense or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may be’ established;

(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.

8. The prosecution has relied on the following circumstances:—

(i) Homicidal death of deceased Zuber.

(ii) Extra-judicial confession of appellant/accused.

(iii) The appellant/accused was in possession of factory premises of place of incident.

(iv) The appellant/accused had called deceased Zuber to his factory premises.

(v) Dead-body was pointed out by the appellant/accused.

(vi) Subsequent conduct of the appellant.

On going through the evidence on record, it can be said that the prosecution has established homicidal death of the deceased Zuber. The appellant/accused made voluntary extra judicial confession before his father in law, informant Makbul Malang Shah and PW-3/Mohd. Ismail Madar Shah. The said extra judicial confession is corroborated by other circumstances namely taking police and witnesses to his factory premises. It is established that the appellant/accused had a key in possession. He opened the shutter of factory. He pointed out dead body which was on mezzanine foor. Therefore, the prosecution has proved the chain of circumstances leading to the homicidal death of the deceased Zuber. The said circumstances unerringly point out the guilt of the appellant/accused and none else. Therefore, the ratio laid down in the case of Sharad Birad Chand Sarda (supra) the prosecution has proved all circumstances leading to the death of deceased Zuber, wherein the appellant/accused was involved. The said circumstances point out the guilt of the appellant/accused.

In the High Court of Bombay

(Before Ranjit More and Surendra P. Tavade, JJ.)

Mohammad Ismail Noormohammad Madana Vs State of Maharashtra 

Criminal Appeal No. 659 of 2012

 Decided on February 12, 2020,

Citation: 2020 SCC OnLine Bom 238

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Whether offence of murder is made out if single blow was inflicted?

 Now so far as the main reason given by the High Court while converting the conviction from Section 302 of the Indian Penal Code to Section 304 Part I of the Indian Penal Code i.e. it was a case of a single blow is concerned, it is required to be noted that the deceased had died because of single injury caused on his head by the Accused by an axe. The aforesaid can hardly be a ground to convert the conviction from Section 302 of the Indian Penal Code to Section 304 Part I of the Indian Penal Code.

6.3 In the case of Arun Raj (Supra) this Court observed and held that there is no fixed Rule that whenever a single blow is inflicted, Section 302 would not be attracted. It is observed and held by this Court in the aforesaid decision that nature of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the Accused to cause death of deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows.

8. Another reason given by the High Court is that there was no repeated injury. Aforesaid can hardly be a ground to convert the conviction from Section 302 to Section 304 Part I of the Indian Penal Code. A single blow on the vital part of the body like head and that too by deadly weapon-axe and used with force which proved to be fatal, was sufficient to hold that it was a case of murder within the definition of Section 300 of the Indian Penal Code.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 645 of 2019 

Decided On: 10.04.2019

The State of Rajasthan Vs.  Kanhaiya Lal

Hon'ble Judges/Coram:

L. Nageswara Rao and M.R. Shah, JJ.

Citation: (2019) 5 SCC 639

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Whether Magistrate should allow victim to conduct prosecution in criminal proceeding?

 In Mallikarjun Kodagali, this Court approved the Justice Malimath
Committee, wherein the victim’s right to participate in the criminal

proceedings which includes right to be impleaded, right to know,
right to be heard and right to assist the court in the pursuit of truth
had been recognised.
15) In view of such principles laid down, we find that though the
Magistrate is not bound to grant permission at the mere asking but
the victim has a right to assist the Court in a trial before the
Magistrate. The Magistrate may consider as to whether the victim
is in a position to assist the Court and as to whether the trial does
not involve such complexities which cannot be handled by the
victim. On satisfaction of such facts, the Magistrate would be
within its jurisdiction to grant of permission to the victim to take
over the inquiry of the pendency before the Magistrate.
16) We find that the High Court has granted permission to the
complainant to prosecute the trial without examining the
parameters laid down hereinabove. Therefore, we set aside the
order passed by the High Court and that of the Magistrate. The
matter is remitted to the Magistrate to consider as to whether the
complainant should be granted permission to prosecute the
offences under Sections 498-A, 406 read with Section 34 IPC. 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1217 OF 2019

AMIR HAMZA SHAIKH  Vs  STATE OF MAHARASHTRA 

HEMANT GUPTA, J.
Dated:AUGUST 07, 2019.

Citation: AIR 2019 SC 3721

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Whether legal heirs of complainant can prosecute complaint after death of original complainant?

The question as to whether the heirs of the complainant can be allowed to file an application Under Section 302 of the Code to continue the prosecution is no longer res integra as the same has been concluded by a decision of this Court in the case of Ashwin Nanubhai Vyas v. State of Maharashtra in which case the Court was dealing with a case Under Section 495 of the Code of Criminal Procedure, 1898, which is corresponding to Section 302 of the Code. In that case, it was laid down that upon the death of the complainant, under the provisions of Section 495 of the said Code, mother of the complainant could be allowed to continue the prosecution. It was further laid down that she could make the application either herself or through a pleader. Undisputedly, in the present case, the heirs themselves have not filed the applications to continue the prosecution, rather the same have been filed by their power-of-attorney holders....

15. In view of what has been discussed above, we are of the view that High Court did not commit any error in allowing the legal heirs of the complainant to prosecute the Criminal Misc. Petition before the High Court.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1860 of 2017 (Arising out of SLP (Crl.) No. 4580 of 2017)

Decided On: 03.11.2017

Chand Devi Daga and Ors. Vs. Manju K. Humatani and Ors.

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

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Whether magistrate can give permission to complainant to conduct prosecution at every stage including stage of framing charge?

 Mr. Tulsi, learned senior counsel appearing for the

appellant submits that he intends to file an application

before the learned Magistrate and hence, liberty may be

granted. Mr. Singh has seriously opposed the same.

Regard being had to the rivalised submissions, we only

observe that it would be open to the appellant, if so advised,

to file an application under Section 302 CrPC before the

learned Magistrate. It may be clearly stated here that the

said provision applies to every stage including the stage of

framing charge inasmuch as the complainant is permitted

by the Magistrate to conduct the prosecution. We have said

so to clarify the position of law. If an application in this

regard is filed, it shall be dealt with on its own merits.

REPORTABLE

IN THE SUPREME COURT OF INDIA.

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 859 OF 2016

Dhariwal Industries Ltd.  V Kishore Wadhwani & Ors. 

Dated:September 06, 2016

Citation: 2016 SCC OnLine SC 935:AIR 2016 SC4369 :(2016) 10 SCC378

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When magistrate can permit private counsel to assist Public Prosecutor in conduct of prosecution as per S 302 of crpc?

Under Section 301, a Pleader en-gaged by a private person can assist the Public Prosecutor or the Assistant Pub-lie Prosecutor as the case may be in the conduct of the prosecution while under Section 302 the Magistrate may permit the prosecution itself to be conducted by any person or by a pleader instructed by him. The distinction is when permission under Section 302 is given the Public Prosecutor or the Assistant Public Prosecutor as the case may be disappears from the scene and the pleader engaged by the person who will invariably be the de facto complainant will be in full charge of the prosecution. The question is even if the Magistrate has got the discretion to grant the permission is it to be granted as a matter of course? There is an ocean of difference between assisting the Public Prosecutor under Section 301 and conducting the prosecution on the basis of a permission granted under Section 302. Public Prosecutors are really ministers of justice whose job is none other than assisting the State in the administration of justice. They are not representatives of any party. Their job is to assist the court by placing before the court all relevant aspects of the case. They are not there to see the innocents go to the gallows. They are also not there to see the culprits escape a conviction. But the Pleader engaged by a private person who is a de facto complainant cannot be (expected to be so impartial. Not only that it will be his endeavour to get a conviction even if a conviction may not be possible. So the real assistance that a Public Prosecutor is expected to render will not be there if a pleader engaged by a private person is allowed to take the role of a public prosecutor by granting permission under Section 302 of the Code. This does not mean that permission cannot at all be granted under Section 302. Under very exceptional circumstances permission can be granted under Section 302. Otherwise, there is no reason why the provision is there in the Code. But that is to be done only in cases where the circumstances are such that a denial of permission under Section 302 will stand in the way of meeting out, justice in the case. A mere apprehension of a party that the Public Prosecutor will not be serious in conducting the prosecution simply because a conviction or an acquittal in the case will affect another case pending will not by itself be enough. At the same time, if the apprehension of the party is going to materialise the court can pending the trial, grant permission under Section 302 even if a request for permission was rejected at the outset.

Equivalent Citation: 1984CriLJ499, 1984KLJ92

IN THE HIGH COURT OF KERALA

Decided On: 04.01.1984

Appellants: Babu
Vs.
Respondent: State of Kerala

Hon'ble Judges/Coram:
K.K. Narendran and M. Fathima Beevi, JJ.

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