Avadhbehari Rohatgi, J.
(1) On adifference of opinion between two judges of this Court R. N. Aggrawal and D. R. Khanna JJ. this appeal has come to me for my opinion under section 392 of the Code of Criminal Procedure. Aggarwal J. dismissed the appeal and maintained the conviction and sentence of the appellant under section 302 Indian Penal Code and section 380 Ipc, Khanna J. allowed the appeal. He set aside the conviction and sentence of the appellant. Now as a third judge I have to give. my opinion on the appeal.
(2) The appellant Harish J. Mal is a young man of 26 years In 1976 he was committed to the court of sessions to stand trial on a charge of murder under section 302 Indian Penal Code . At that time he was 22 years of age The charge was that on 28-5-1976 he had committed the murder of his aunt, Mrs. Micle Violet Law. He was also charged for committing theft from her dwelling house under s6c. 380 Indian Penal Code . The Additional Sessions Judge tried him. He found him guilty on both counts. He sentenced him to imprisonment for life on the charge of murder. On the charge under section 380 he sentenced him to Ri for 3 years and' a fine of Rs. 1500.00 and in default Rl for six months. Both the sentences were ordered to run concurrently. .
(3) From his conviction and sentence the- appellant appealed to this court. The appeal was heard by Aggaiwal and Khanna JJ. They differed, as I have said. One was for dismissing the appeal. The other was for allowing the appeal.
(4) The evidence in this case and the arguments of counsel have been discussed in detail in the two judgments of the learned judges. I will give the briefest narration of the prosecution case here. The prosecution case as unfolded in. the evidence is this, Mrs. Micle Voilet Law was an old woman. She was 66 years of age at the time of her death. She was a mid-wife by profession. She was living in Christian Colony in a separate apartment with the informant Edward Gardner, a man of 67 years of age. Both.of them were in the evening of their lives.
(5) Mrs. Law was the wife of Mr. M.V Law. She was living separately from her husband. There was no legal divorce between them. But they were living apart. The husband Mr. Law appeared in the witness box as adefense witness. He said that since Mrs. Law was having illicit relations with Edward Gardner he had left living with her. Edward Gardner admitted that he and Mrs. Law were living as husband and wife. In public he was posing as the brother-in-law of Mrs. Law.
(6) Chronologically stated the facts are as follows. On 25-5-1976 the appellant visited Mrs. Law in her apartment. He is Mrs. Law's brother's son. Edward Gardner was present on that occasion. In the presence of the appellant he told Mrs. Law that he will be going to Bulandshahar in connection with his lands on 28th of that month.
(7) Before 28th Mrs. Shashi Wadhwa visited Mrs. Law. From the evilence it appears that Mrs. Law was attached to Shashi. She had brought her up as a little child because her mother was paralytic. She had educated her and then arranged for her marriage. Shashi was living in Shahdara with her husband. She had a little daughter who was living with Mrs. Law off and on Mrs. Law was devoted to the child. On 27th Shashi came and took away the child because she was unwell.
(8) On 28th morning at about 6 a.m. Edward Gardner left for Bulandshahar. Mrs. Law remained in the house. At 11 a.m. she was seen washing her clothes by a neighbour, Mrs. Smith. Jai Devi, the sweepress, came to sweep her bathroom. At about 10 a.m. Mrs. Kusum Kapoor came to enquire about Edward. She is Edward's sister's daughter. Mrs. Law told her that he had gone to Bulundshahar. A little later William Gardner arrived to enquire about Edward. William is the brother of Edward Gardner. Both these visitors remained with Mrs. Law till about 11.30 a.m. and then they left her. They saw the appellant present in the house. He remained there even after they had left. Mrs. Law introduced the appellant to them as her brother's son.
(9) Edward Gardner came back from Bulandshahar as about 5 in the evening. He found the appartment locked. He enquired from the neighbours if Mrs. Law had left the key for him. The neighbours told him that Mrs. Law had not left the key. Edward Gardner had his dinner outside in a hotel. He came back to the apartment at about 9 p.m. He found it still locked. He went to the roof and slept there in the night. In the morning he came and found the door locked as before. At about 7 a.m. he left for Shahdara. He went to Shashi's house. He enquired from her if Mrs. Law had visited her. She answered in the negative. He then asked her to give the key of the apartment. Shashi used to have one key with her so that she could open the apartment and go to Mrs. Law's house at any time. The key was given to Edward. On way he went to the clime in Regarpura where Mrs. Law worked to enquire from her fellow worker. Raj Rani, if Mrs. Law bad visited the cleric. Raj Rani replied in the negative.
(10) From there he went straight to the apartment at 11 a.m. and opened it. On opening he saw Mrs. Law lying dead with half body on the plang (bed) and half on the cot. A rope was tied around her neck. Her eyes were bulging out. Her tongue was protruding. He pushed to the police station and lodged a report at about 12.50 in the afternoon. In the Fir he named the appellant because be suspected him of murder. On this information, the police arrested the appellant. According to the police he was arrested at Delhi while coming oat of a cinema in Patel Nagar on 1st June 1976. According to toe appellant he was arrested at Agra.But nothing turns on it. On 2nd June the appellant made a disclosure statement to the police. this led to the recovery of articles belonging to the deceased. Her bag was recovered from Ajmal Khan Park in Delhi. Her ornaments were recovered from a jeweller at Agra on 3rd June.
(11) Aggarwal J. believed the testimony of prosecution witnesses and in particular the testimony of Mrs. Kusum Kapoor and William who deposed that the deceased was seen last with the appellant. He also believed the disclosure statement leading to the recovery of a lady's bag and the ornaments. On the evidence of prosecution witnesses he was satisfied that the case against the appellant had been proved beyond reasonable doubt. Khanna J. differed from him. He held that the prosecution had failed to establish the guilt, of the appellant beyond reasonable doubt. Point by point he enumerated as many as 22 discrepancies in the prosecution case. Presence of the appellant :
(12) There are two questions in this appeal. One is about the deceased being seen last with the appellant. The other is about the recoveries. Mrs. Kusum Kapoor and William Gardner on hearing of the murder of Mrs. Law went to the police station and there their statements were recorded. They appeared in court to give evidence. In their testimony both these witnesses deposed that the appellant was present at the house of Mrs. Law when they visited her on 28.th May, 1976. They remained with the deceased for an hour or so. They were introduced to the appellant by the deceased. In my opinion there is no reason to doubt the testimony of these two witnesses. The trial judge accepted their testimony. Aggarwal J. found them trustworthy. Khanna J. disbelieved them. He said this :
'THEYhave of course no motive to depose against the appellant but it cannot beruled out that they were interested to product Edward Gardner.'
(13) This is not a correct view. The weight of evidence is against this view. The underlying assumption here is that Edward Gardner may have committed murder. There is no foundation for this supposition. It is true that Mrs. Kusum Kapoor was the sister's daughter of Edward Gardner. William Gardner was his brother, this also is true. The defense story is that Edward Gardner committed the murder because he wanted to grab the property of Mrs. Law. Mis. Law had purchased three plots. One in the name of her brother George. Mull, the second in the name of the other brother Franklin Mull, and third in her own name. Mrs. Law's husband, Mr. Law, and her two brothers, George and Franklin, as well as the appellant, gave evidence that Edward Gardner came to them on 28th May 1976 in the evening and enquired as to who will inherit the property in the event of Mrs. Law's death. The answer given to him was that the husband would inherit because he was alive and there was no divorce and if he does not claim the brothers will claim, the .property. On this answer Edward got engry and said that he will inherit and not the husband or the brothers. The appellant in his statement under Section 313 Criminal Procedure Code . said that Edward committed the murder of Mrs. Law presumably after he returned from her husband's and the brothers' houses and that Edward had brought a false case against him. He said in liis statement:
'ALLthe witnesses are interested and related to Shashi Wadhwa and Edward Gardner. They wanted to protect Edward Gardner who had been visiting Mrs-. M.V. Law under suspicious circumstances. Edward Gardner is a person who is responsible for death of Mrs. M.V. Law arid other witnesses have protected him being related to him Girja Shankar and Public Witness Sushil Kumar have been procured by the police and Shashi Wadhwa in order to plant the, ornaments on me.'
(14) I have no doubt that the defense story is ''a cooked up version', as Aggarwal J. calls it. It is riot only cooked up, it is fantastic on the face of it. Edward is nowhere in the line of inheritance. If Edward had committed the crime he would never have gone to the husband and the brothers of Mrs. Law on the fateful day-of 28th May 1976. Nor in the normal course of events would he, come back to Mrs. Law's apartment and take the trouble of opening it. He would not have rushed to the police to make the report on 29th of the murder. In my opinion the defense is meritless and, the accused's story is meretricious. Once we come to the conclusion that Edward is not be guilty man, there is no reason to disbelieve the sworn testimony of Mrs. Kusupi Kapoor and William Gardner. They have no reason to falsely implicate the appellant. .There is no suggestion that these witnesses met Edward before they went to. make their statetements to the police. After hearing the news of death of Mrs. Law they went to the police station directly. Their evidence shows that the appellant was present in the house of Mrs. Law when these two witnesses left her round about 11.30 a.m.
(15) The testimony of these witnesses was criticised on two grounds. One is that these witnesses say that their statements were recorded on 30-5-1976 while the fact is that their statements were recorded on 29-5-1976. This discrepancy is of course there. But it appears to be due to lapse of memory.
(16) Secondly, it was said that the sweepress Jai Devi did not see them. The sweepress came to sweep the bath room. It is possible that those who were sitting in the room she did not notice.
(17) Two further points were made on the testimony of these witnesses. It was said by appellant's counsel that the evidence of Mrs. Kusum Kapoor is not worth relying upon because admittedly she was a teacher and she used to teach students from 8 a.m. to 1.30 p.m. every day. This would make her presence doubtful, counsel said. I do not agree. She was not a regular teacher. Sometimes she taught, sometimes not. It was then said that Mrs. Kasum and William saw the appellant for the first time on 28th May 1976 and there ought to have been an identification parade in order to establish the identity of the appellant. This argument has no merit. The parties are closely related. It was not difficult for Mrs. Kusum Kapoor and William Gardner to remember and to recollect that they were introduced to the appellant by Mrs. Law and they were told that he was her brother's son.
(18) It is in evidence that the police found that on the roof there was a cot of Mrs. Smith and the rope was cut from the cot with the help of a brick. This piece of rope was brought from the roof arid tied round the neck of Mrs. Law. She was strangled to death. She was old. Against youth she could not put up resistence. The evidence establishes that the appellant was present on 28th May 1976 with Mrs. Law and he was there at 11.30 a.m. when Mrs. Kusum Kapoor and William Gardner left her. Mrs. Law was alone. The appellant took the advantage of the opportunity to commit the crime. The murder was committed between 11.30 a.m. and 5 p.m. when Edward Gardner returned. It is proved that the appellant committed the murder because the ornaments worn by Mrs. Law were slod by him. I, thereforee, now turn to the recoveries. Recoveries :
(19) This is the heart of the matter. Khanna J. calls it crucial evidence'. Aggarwal J. takes the view that this is the foundation on which the prosecution case rests. In my opinion this is the main pillar of the prosecution case.
(20) On 2nd June, 1976 the appellant made a disclosure statement. This led to recovery of a lady's bag at Ajmal Khan Park on 2nd June itself. The lady's bag contained a key and urine report of Mrs. Law issued by Dr. M.K. Garg. This shows that the bag belonged to the deceased in which she kept papers and keys. Edward said that there was a bunch of keys and a green card in the bag. Seizure memo does not show it. This recovery is .criticised on the ground that the seizure memo does not support Edward. This is a minor discrepancy and not of much consequence in view of the solid evidence against the appellant in the shape of recovery of ornaments at Agra.
(21) On 3rd June the police took the appellant to Agra because he said that he could get the ornaments recovered from the jeweller to whom he had sold them. There is positive evidence of Girja Shankar that the appellant brought a chain, a kara and three goldrings and sold them to him. Girja Shankar paid Rs. 11401- to the appellant. The appellant executed a receipt in his own hand (Public Witness 4/A). The signatures on this receipt were admitted by the appellant in his statement under Section 313. Criminal Procedure Code . This recovery connects the appellant with the crime.. This evidence establishes the appellant's quilt. In my opinion the recovery of the bag and the ornaments is decisive of' the guilt of the accused. It is determinative of the fact I hat the appellant murdered Mrs. Law and took away her ornaments and sold them at Agra where his father lives.
(22) This is strong evidence against the man.. There is iio worthwhile criticism of the recovery of the bag and gold orna- ments except that the appellant says that the ornaments were planted on him. The appellant's counsel said that this recovery is against the facts proved in the prosecut'on evidence, Firstly. she drew my attention to the Fir where Edward had said that Mrs. Law was wearing rolled gold bangles which he found missing. In the Fir he has not said anything about the gold chain, kara and the rings. Secondly, it was said that in a plan prepared at his instance in July 1976 it is shown that these ornaments were stolen from a box and were not remove from the body as is the evidence. In my opinion, the mere fact that Edward did not mention that these ornaments were miss'ing, in the first infrormation report will not discredit the recovery. Edward explained in his evidence that he was nor in a fit state of mind at the time he made the report to the poirce and thereforee did not mention the disappearance of these ornaments. In some situations the straight line of truth is diverted by the infuences of emotion or of hysteria or of alarm or of remorse. A tribunal of fact should understand this. The evidence of Edward can not be rejected on this ground.
(23) There is positive evidence that Mrs, Law was wearing a gold chain, three rings and a kara on the 27th. Shashi says that she saw Mrs. Law wearing these ornaments on 27th May when she went to her to take the child. Edward says that when he left in the morning of 28th she was wearing these ornaments. that these ornaments belonged to Mrs. Law has been proved beyond reasonable doubt. There was an identifiction parade of the ornaments conducted by Mr. Dharam Raj Singh, Magis- trate. Shashi Wadhwa rightly identified the ornaments. This cstablishies that the ornaments which were recovered at the ins- tance of the appellant belonged to the deceased and that she was wearing 'them at the time of murder. The probative value of this positive identification is great.
(24) The evidence of the jeweller Girja Shankar and his neighbour Sushil Kumar was severely criticised by detence counsel. If was said that Girja Shankar says that he was called from his residence by the police while Sushil says that he was present at .the shop when the police arrived .with the appellant on 3rd June. It was argued that Girja Shankar does not maintain accounts. The receipt Public Witness 4/A does not mention this witness's name and bears only 10 P. stamp instead of 20 P. as deposed by witness. These are matters of detail but the preponderance of unquestioned evidence is so great, that I cannot conclude in any view of the matter that the appellant's guilt has not been proved beyond reasonable doubt. Beyond, an indefinite suggestion that the ornaments were planted by the police which comes to nothing, there is nothing to persuade the court to disbelieve the evidence of Girja Shankar who is a law . graduate and a sales tax practitioner. That he was a tool in the hands of-the police is difficult to accept. A clearer case . could hardly there be, and it would be the merest speculation to suppose that the .recovered ornaments were not of the deceased. The trial judge, in my view, rightly observed that the prosecution case that the appellant sold the ornaments to Girja Shankar against receipt Ex. Public Witness 4/A stands proved to the hilt. ' Time of death :
(25) Dr. Bharat Singh in his evidene testified that the cause of death was strangulation. Death was due to asphlyxia resulting from strangulation with the rope. He found legature mark around the neck of the deceased. 'Time since death' he said 'was about 36 hours'. Now the 'defense argument is that this evidence fixes the time of murder at 10 p.m. on 28th May 1976 while the prosecution case is that Mrs. Law was murdered between 11.30 a.m. and 5 p.m. The post-mortem was conducted 30-5-1976 at 10 a.m. Khanna J. was impressed by this -discrepancy. He said that this discrepancy destroys the ''-fabric' of the prosecution case to a large extent. I do not think so I do not regard medical e.vidence on this point as conclusive. The possibility of error in time factor cannot be eliminated. The time of death cannot be pinpointed with mathematical precision. More so after the onset of decomposition md putrefaction. mdical experts tell us :
'ESTIMATINGtime of death from medical data cannot be considered absolutely reliable from point of view of time. Accuracy is inversely proportional to the time. elapsed since death to the time of the post mortem examination. This shortcoming is due 'to many variable factors which intervene and prevent the medical officer arrive at exact conclusion and give a definite opinion.'
Medical Jurisprudence by Jhala and Raju (3id cd. pp. 147-
(26) So Dr. Bharat Singh's evidence is only a rough estimate of the time of death. Nothing more. Time of death can be 36 hours or more. It can be 45 hours. Mrs. Law was murdered, as I have said, between 11.30 a.m. and 5 p.m. This variance between the prosecution evidence and the medical evidence, I think, is not fatal to the prosecution case. Motive.
(27) This is a case of circumstantial evidence. There is no direct evidence. Circumstantial evidence is sometimes contrasted with direct evidence in that facts in issue are indirectly inferred rather than directly perceived. In cases of circumstantial evidence the question of motive assumes importance. But we know from experiene that atrocious crimes have been committed from very slight motives. A leading authority says :
'MOTIVEin this sense is not relevant to responsibility (guilt Or innocence), though it may be relevant to proof or to the quantum of punishment. The prosecution may prove a motive for the crime if it helps them to establish their case, as a matter of circumstantial evidence; but they are not legally bound to prove motive, because a 'motiveless' crime is still a crime.'
[Glanville Williams Text book of Criminal Law (1978 page 56].
(28) In my opinion the prosecution has proved the motive in order to establish their case. The appellant was unhappy with Mrs. Law. Mrs. Law had affection for Shashi and her little child. Shashi says in evidence that she was adopted by Mis. Law, though there is no cogent evidence of adoption. But the. fact remains that Mrs. Law had brought up Shashi Wadhwa and was attached to her. She was also fond of Shashi's daughter. This the appellant did not like.
(29) The other reason of the appellant's grudge was that in his father Johnson Mull's name no plot was purchased by Mrs. Law while she had purchased two plots in the names of her two other brothers one in the name of George Mull and the other in the name of Franklin Mull. Johnson Mull did not get anything from her. Neither the appellant nor his father was the beneficiary of her bounty. This was the reason for constant quarrel between the appellant and Mrs. Law. Edward depases to this. This furnishes the moive for the crime. The appellant killed her for a motive of greed and jealousy. That he sold the ornaments for Rs. 1140 establishes that the, motive was this petty gain of a handful of silver. Such is the world of crime. Reasonable doubt.
(30) It is an essential principle of our criminal law that a criminal charge has to be established by the prosecution beyond A reasonable doubt. The philosophy underlying this rule is the of quoted maxim that it is better than ten guilty persons should escape than one innocent .suffer. The time honoured expression that? the court must be satisfied 'beyond reasonable doubt' has been accepted in the Anglo Saxon world as the standard of proof in criminal cases. Since the decision in Woolmington's case the direction to the jury. has been that they must he -satisfied of the prisoner's guilt beyond reasonable doubt if they want to convict him..[Woolington v: The Director of Public Prosecutions, (1935) Ac 462.Lord Goddard suggested in England that this phrase should, be abandoned. . He had great experience in criminal matters. He suggested the the expression. completely satisfied' or fully sure should be accepted as substitutes [R v. Hapwarth (1955) 2 Q.B. 600. But his view has not been accepted.
'THEfourth edition of Halsbury's Lawsof-England goes so far as to say that the phrase 'reasonable doubt' should be avoided. (See Vol. 11 page 173 Para 298). No (one has yet inverited or discovered a anode of measurement for the intensity of human belief better than this formula of proof 'beyond reasonable doubt.'
(31) What does the expression 'beyond reasonable doubt mean Fora doubt to stand in the way of conviction of guilt it must be a real doubt and a reasonable doubt -a doubt which after full and fair consideration of the evidence the judge really on reasonable grounds entertains 'If the data leaves the mind of the trier in equilibrium, the decision must be against the party having the burden of persuasion.' If the mind of the adjudicating tribunal is evenly balanced as to whether or not the accused is guilty, it is its duty to acquit.
(32) If the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal can safely convict on it the prosecution must fail. 'A reasonable doubt', it has been said, 'is that quality or kind of doubt which when you are dealing with matters of importance in your own affairs you allow to influence you one way or the other.' (Walter v. R (1969) 2 A.C. 26 affirmed in R. v. Gary (1973) 58 Cr. App. Rep. 177. The court cannot be satisfied beyond reasonable doubt if there be still open some reasonable hypothesis competible with innocence. There is no emancipation of the mind unless all reasonable doubts have been eliminated from it.
(33) Lord Danning warned that proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. When a judge of first instance he said ':
'THEdegree of cogency need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in. his favor which can be dismissed with the sentence 'of course it is possible, but not in the least probable', the case is proved beydnd reasonable doubt, but nothing short of that will suffice'
[Miller v. Minister of Pensions, (1947) 2 All H.R. 372. Quoted in G. Williams Criminal Law The General Part, 2nd ed. p. 8731.
(34) On the circumstantial evidence in the case f am satisfied that the prosecution has proved the case against the appellant beyond reasonable doubt. 'Justice and common sense have too frequently been sacrificed at the shrine of mercy', as that great Judge Parke B said in Reg v. Baldry, (1852) 2 Den Cr. C. 430 followed in lbrahim v. Rex (1914) Ac 599. In my opinion the points made by the defense are only 'fanciful probabilities'. The discrepancies are either minor or reate t0 matters of detail or a r sulte of lapse of menorey or wholly inconsequential. for example by the police Rolled gold bengles referred to in Fir have not been found. pearl and remianunexplaines. in the recovered ornaments are missing and stones studded in the recovered ornaments are missing remain unexplained. No one can answerd all the whys and wherefores. a search for all these items will lead to interminable delays, assuming it to be possible.
'PROMPTdecision on the merits is imperative, for justice delayed is often justice denied, sometimes a wrong decision quickly made is better than a right dicision after undue procrastination. 'Some concession must be made to the shrtness of human life.'
(American Law Institute- Model Code of Evidence Page 3)
(35) It must be remembered that in the heat and hurry of the trial the witnesses can make mistakes because their capacities and stimuilli for accurately observing and remembering vary from witness to witness. the ability and desire to narrate truly may be slight or great. If a prosecution case is perfect in every way it can be so only by tailored evidence. the risk of manufature is great. There must be a recognition at the outset that nicely accurate results cannot be expected. In human affairs all that is attainable is a rather rough approximation to truthA trier of fact should remember this. Seen in proper relation to the whole matter the recovery of bag and ornaments is an unimpleachable evidence of the appellant's guilt. There is solid evidence of indenpendent and disinterested witnesses. The prosecution evidence furnishes logically persnasive and legally relevant data to enable the court to reach the conclusion beyond reasonable doubt that it is the appellant who is the murderer. It is a clear case. There is 'no hinge nor loop to hang a doubt on.'
(36) For these reasons I agree with the opinion expressed by R.N.Agarwal J. that the appeal should be dismissed and the conviction and sentence awarded by the trial judge should be affirmed.
(37) A word about procedure. Under section 392, Criminal Procedure Code . the case must now go before the bench of R. N. Aggarwal and) D. R. Khanna JJ. They will make the order on the appeal. (See Balkli v. Emperor, : AIR1948All237 . The appeal will have to be dismissed in view of what I have said in my opinion. The appellant is on bail. His bail bonds will be cancelled. He shall be taken in custody forthwith to serve the sentence awarded to him.