KISHORE CHAND versus STATE OF HIMACHAL PRADESH

Citation: [1990] SUPP. 1 S.C.R. 105 · Decided: 29-08-1990 · Supreme Court of India · Bench: P.B. SAWANT · Disposal: Appeal(s) allowed

Judgment (excerpt)

KISHORE CHAl"D 
v. 
STATE OF HIMACHAL PRADESH 
AUGUST 29. 1990 
[P.B. SAWANT AND K. RAMASWAMY. JJ.] 
Indian Penal Code, I860: ss. 302 & 20 I-Conviction based on 
circumstantial evidence-Facts consistent with innocence of accused-
Whether entitled to benefit of doubt-Tendency of free fabrication of 
A 
B 
• 
record to implicate innocents in capital offence deprecated. 
........ 
Constitution of India: Articles I4, 19, 2 I & 39A/Universal Decla-
ration of Human Rights: Articles 3 & 10--Indigent accused-Right to 
liberty and life, equal justice and free legal aid-Need to assign 
experienced amicus curiae to ensure effective and meaningful defence 
emphasised. 
The appellant was convicted nnder ss, 302 and 201 read withs. 34 
IPC. The prosecution case was that he and the deceased were last seen 
together in village J on November 10, 1974 by PW. 7, owner of a 
dhaba-cum-liquor shop, and PW. 8, and all of them had consumed 
liquor. The deceased had by then become tipsy. Thereafter the appel-
c 
D 
lant and the deceased had boarded a truck driven by A-2 and A-3, the 
E 
cleaner. While they were going in the truck there ensued a quarrel 
between them over some money matters and the appellant attacked the 
deceased with an iron screw driver, and when the latter was half dead 
all the accused severed his head with an iron saw and burried the trunk 
under stones. The head was hidden at a different place. Three days 
later, PW-6, chowkidar of a neighbouring village noticed the dead body 
F 
and reported the matter to PW-IO, the village pradhan, who accom-
panied him to the spot. PW-6 lodged the FIR the next morning. On 
receiving information that the deceased and the appellant were seen 
consuming liquor on November 10 the Sub-Inspector, PW-27, and PW-
10 went to appellant's village and took him for identification to village J, 
where PWs 7 and 8 identified him as one seen in the company of the 
G 
deceased and having consumed liquor. The appellant was thereafter 
taken to PW-IO's village and PW-27 proceeded for further investiga-
tion. The appellant then made an extra-judicial confession to PW-IO of 
having committed the crime with the help of A-2 and A-3. PW-JO pas-
sed on that information to PW-27 the next day following which the 
accused were arrested. Thereafter A-2 made a statement under s. 27 of 
H 
105 
A 
B 
106 
SUPREME COURT REPORTS 
[1990] Supp. I S.C.R. 
the Evidence Act leading to the discovery of the severed head. The 
weapon of offence was also recovered. The High Court confirmed the 
conviction and sentence of the appellant but acquitted the other two of 
the charge under s. 302 !PC. 
Allowing the appeal hy special leave, the Court, 
HELD: I. The prosecution has failed to bring home the guilt 
to the appellant beyond all reasonable doubt and to prove that he 
alone had committed the crime. He is, therefore, entitled to the benefit 
of doubt. [116D I 
.,..,. 
2.1 When there is no direct witness to the commission of murder 
C . and the case rests entirely on circumstantial evidence, all the circums-
tances from which the conclusion of the guilt is to be drawn sbould be 
fully and cogently established. The proved circumstances should be of a 
conclusive nature and definite tendency unerringly pointing towards 
the guilt of the accused. Imaginary possibilities have no role to play. 
o 
What is to be considered are ordinary human probabilities. It is not 
necessary that each circumstance by itself be conclusive but cumula-
. c... 
tively mnst form unbroken chain of events leading to the proof of the 
guilt of the accused. If any of the said circumstances are consistent with 
the innocence of the accused or the chain of the continuity of the 
circumstances is broken, the accused is entitled to the benefit of the 
E 
doubt. [112D-H] 
2.2 In assessing the evidence to find these principles it is neces-
sary to distinguish between facts which may be called primary or basic 
facts on one hand and inference of facts to be drawn from them, on the 
other. In regard to the proof of basic or primary facts, the court has to 
F 
judge the evidence in the ordinary way and in appreciation of the evi-
dence in proof of those basic facts or primary facts, there is no scope for 
the application of the doctrine of benefit of doubt. The court has to 
consider the evidence and decide whether the evidence proves a particu-
lar fact or not. Whether that fact leads to the inference of the guilt of the 
accused or not is another aspect and i

Excerpt shown. Read the full judgment & AI analysis in Lexace.