Section 106 Of Evidence Act – Failure To Explain Can Only Be Held As An Additional Link To Complete Chain Of Circumstances – Supreme Court

"Since the other circumstances in the chain are not established, the same cannot be held against the Appellant," Court opined.

An appeal was preferred against the judgment of the Bombay High Court, Aurangabad Bench which had dismissed the appeal of the Appellant-Accused and upheld the decision of the Sessions Judge, Parbhani to convict the Appellant under section 302 and 436 of the Indian Penal Code.

In this case, the husband and mother-in-law of the deceased were also charged as Accused 2 and Accused 3; however, both were acquitted by the Sessions Court.

The Appellant-Accused was the second wife of the Accused 2 and were staying together with the first wife of A2 (deceased) and his two children (Daughter & Son- also deceased) along with A3 and the father-in-law. Both A2 and A3 were not present when fight fire broke at their house in which the first wife and children died, however, the Appellant-Accused survived with no injuries.

Following this, a case was registered against the Appellant-Accused, A2, and A3 upon the allegations made by the sister of the deceased and the complaint lodged by the father-in-law implicating the Appellant.

The Sessions Court after considering the evidence tendered by PW1 and PW9 held that the case against A2 and A3 was not proved and branded their testimonies as not trustworthy. Regarding the Appellant, the Court took the evidence tendered by PW1 and PW3 that the Appellant was also sleeping with the deceased and was of the opinion that if the house caught fire accidentally then the appellant also should have suffered burn injuries. Since she had come out of the house without any injuries it was held that she is guilty. The Sessions Court also noted that the clothes of the deceased girl child had stains of kerosene and a can of kerosene was also recovered from the bushes. The Court held that the Appellant had a strong motive and had the opportunity to commit the act, thereby convicting the Appellant.

While the High Court discarded the extra-judicial confessions of PW1 (Father-in-law) holding that he could not have accepted the Appellant as the second wife of his son when was already married to the deceased. The High Court did not find it worthy of placing reliance on the confession made by the father-in-law that the Appellant had sprinkled kerosene and set fire. The Court was of the opinion that extra-judicial confession is weak evidence by itself.

The High Court ultimately arrived at its conclusion that the appellant is guilty of committing the offence since admittedly the appellant had not sustained the slightest injury due to the fire which means that she left the house well in advance to the spreading of fire.

After considering the contentions of the parties and the conclusions of the Courts below, the Apex Court held that the conclusion reached by the High Court did indicate that the evidence tendered by the Prosecution had been discarded as not trustworthy but ultimately the conclusion was based upon the assumption that the Appellant did not suffer from any injuries in the fire.

The issue which arose before the Court was whether the chain of circumstances to convict the appellant is complete.

The Court opined that the High Court had convicted the Appellant-Accused based upon the preponderance of probability rather than reaching a conclusion beyond a reasonable doubt. The High Court's reasoning was based upon conjectures and surmises, the Court observed.

The Bench asserted "Even if the chemical analysis report referring to the frock is accepted there is nothing on record to connect that the appellant was responsible for the sprinkling of the kerosene or for the kerosene to have come in contact with the frock of Nikita which is said to have been recovered from the place of occurrence."

Considering the lantern light night used at night for which kerosene oil is used and cooking done in the house and the material pertaining to the tractor including diesel can also kept in the house, the Court held "Therefore, the circumstance that the appellant was not injured in the incident cannot be the basis to rely on the presence of kerosene stains on the frock as a circumstance that she had set fire by sprinkling kerosene."

Relying upon the case of Sharad Birdichand Sarda v. State of Maharashtra, the Court held, "The position of law is well settled that the links in the chain of circumstances is necessary to be established for conviction on the basis of circumstantial evidence."

"Further the mere suspicion would not be sufficient, unless the circumstantial evidence tendered by the prosecution leads to the conclusion that it "must be true" and not "may be true," the Court noted.

"If the facts as noted by the High Court leading to such suspicion, equally there are also circumstances which raise a doubt whether the appellant can be held guilty only because she was not injured in the incident. In that regard, what is to be noted is that the natural human conduct is that when there is any incident or accident the immediate reaction is to get away from the scene and save oneself," the Bench opined.

The Court took the dying declaration of the deceased into consideration and held, "Not being injured alone cannot be held as circumstance to hold one guilty of having set fire to the house."

The Court held, "The High Court holding the appellant guilty of pouring kerosene around the deceased and her children and setting them on fire since the appellant had failed to explain the reason for the eruption of fire in view of such obligation to explain under Section 106 is also not sustainable in the present circumstance."

"As held in Sharad Birdhichand Sarda (supra) the failure to explain can only be held as an additional link to complete the chain of circumstance. In the instant case, since the other circumstances in the chain are not established, the same cannot be held against the appellant," observed the Court.

Accordingly, the Court allowed the appeal holding that the facts and circumstances give the Appellant the benefit of doubt thereby quashing the order of conviction against her and set aside the Judgment of the Sessions Court and High Court.