CIRCUMSTANTIAL EVIDENCE : REQUIREMENTS

SHARAD BIRDHI CHAND SARDA V. STATE OF MAHARASHTRA [1984] INSC 118 (17 July 1984): 1984 Cri.L.J. 1738 = AIR 1984 SC 1622

“It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law.

However, where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case the same could be cured or supplied by a false defence or a plea which is not accepted by a Court. [162C-E] 3:2. Before a false explanation can be used as additional link, the following essential conditions must be satisfied: [165E]

1. Various links in the chain of evidence led by the prosecution have been satisfactorily proved; [165E]

2. The said circumstance point to the guilt of the accused with reasonable definiteness and; [165G]

3,The circumstances is in proximity to the time and situation.[165H] If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend as assurance to the Court and not otherwise. On the facts and circumstances of the present case this does not appear to be such a case. There is a vital difference between an incomplete chain of circumstances and a circumstance, which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is enable to prove any of the essential principles laid down in Hanumant's case the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. [166A; 166D-E] 92 3:3.

Before a case against an accused vesting on circumstantial evidence can be said to be fully established the following conditions must be fulfilled as laid down in Hanumat's v. State of M.P. [1953] SCR 1091. [163C]

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; [163D]

2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; [163G]

3. The circumstances should be of a conclusive nature and tendency;[163G]

4. They should exclude every possible hypothesis except the one to be proved; and [163H]

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. [164B] These five golden principles constitute the panch-sheel of the proof of a case based on circumstantial evidence and in the absence of a corpus deliciti. [164B] Hanumant v. The State of Madhya Pradesh [1952] SCR 1091; Tufail (Alias) Simmi v. State of Uttar Pradesh [1969] 3 SCC 198; Ramgopal v. State of Maharashtra AIR 1972 SC 656;

RECOVERY OF DEAD BODY AT THE INSTANCE OF THE ACCUSED – THERE CAN BE THREE PRESUMPTIONS AGAINST THE ACCUSED

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 495 OF 2006

Ningappa Yallappa Hosamani and Ors. ...Appellants

Versus

State of Karnataka and Ors. ...Respondents

With Criminal Appeal No. 496 OF 2006

Decided on 8^th May, 2009.

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in these appeals is to the order passed by a Division Bench of the Karnataka High Court. The High Court by the impugned judgment allowed the appeal and set aside the conviction of appellants 3, 4 and 5 (accused No.3-Sri Giriyappa @ Gireppa, A-4 Sri Yallappa S/o Arujunappa Yaraddi, A-5 Sri Vithal S/o Kalakappa) before it. The compensation of Rs.50,000/- awarded to Girijabai (PW-4) was reduced to Rs.20,000/-. The present appeal is by A1, A6 and A7.

2. Seven accused persons had faced trial for alleged commission of offences punishable under Sections 143, 148, 341, 109, 302 and Section 201 read with Section 149 of the Indian Penal Code, 1860 (in short the `IPC'). The occurrence took place in the intervening night of 31.1.2005 around midnight.

3. Prosecution version in a nutshell is as follows:

Namadev Muralidhar Huvvannavar (the deceased) resided in Bommanabudni village along with his wife-Girijabai (PW.1) and his five children, out of whom Panduranga (PW.5) is one. He was in politics and due to his activities, he had incurred enmity of many persons. He was an accused in a session case on the allegation of having committed about ten years prior to 2005, the murder of Arjunappa Yaraddi (father of accused No.4) having set on fire the sugarcane crop of Yallappa Yaraddi. He was later acquitted in the said case. Due to that, he had enmity towards accused No.4, and for certain other reasons towards other accused also. On 30.1.2005 he left for Mudhol at about 4.00 p.m., on his CD Don motorcycle bearing Reg.No.KA- 48/E-1688 (M.0.15). In Mudhol, he met Kallanagouda Timmanagouda Patil of Utturu (P.W.12) at about 8.00 p.m., and told that he was returning to Bommanabudni via Halki. Later at 9.00 p.m. he was seen at Halki by Gyaneshwar Ramappa Manemmi (P.W.11) going on the motorcycle towards Bommanbudni. He did not return home on that day and on the next day as well. Therefore, Girijabai (P.W.1) and Panduranga. (P-W.5) started the search for help. They traced the movement of Namadev till he left Halki and thereafter they could not get any trace of Namadev. In the meantime, they learnt that there were certain motorcycle marks in the land of Vijaya Mandandappa Sutar of Mingapura and when they went there, they found certain tyre marks of a motor cycle corresponding with the tyre marks of Namadev's motor cycle. Therefore suspecting possible abduction of Namadev, P.W.1 lodged a complaint against Yallappa Arjunappa Yaraddi (accused No.4) and Vital Kalakappa Navi (accused No.5). That complaint was received by Sri Malakappa, P.S.I. of Lokapur Police Station (P.W.21), who registered a case at Crime No.16/2005 and forwarded F.I.R. (Ex.P.27) to the JMFC, Mudhol. He went to the place i.e., the land of Vijaya Manadappa Sutar as shown by P.W.1 and conducted the spot mahazar as per Ex.P.2. He also collected information in the neighbouring villages. He learnt that on that night i.e., at 8.00 p.m. of 30.1.2005, P.W.10-Vishnu Tulasigeri had seen the accused Nos.1, 2 and 4 to 7 near Bommanabudni bus stand talking to each other and later P.W.16-Laxmappa Mullauru having seen the accused No.2 and 7 going on one motor cycle and accused Nos.1 and 6 going on another motor cycle towards Belgaum road. He also learnt that at that time the accused No.7 was on the motorcycle with a gunny bag and when P.W.16 had asked him about the same, the accused No.7 had replied that it contained a jaggery block intended to be given to his relative. The police also learnt that on the same night i.e., at about 3.00 a.m. on 30.1.2005, the accused Nos.1, 2, 6 and 7 had been seen by P.W.7-Hanamath Gouda

Patil near the canal and two motor cycles parked on the road. That was further confirmed by the information given by P.W.8-Bhimappa Maleguddi. In furtherance of the same, the police suspected the accused Nos.1, 2 6 and 7 in the matter and launched a search for them. The accused Nos.1 and 2 were apprehended on 3.2.2005. On interrogation by P.W.20-Basavareddi Lingadal, C.P.I. of Mudhol circle (investigating officer), the accused Nos.1 and 2 volunteered information to show the place where Namadev had been murdered and also the place where his dead body had been buried. In furtherance of that information, police officer in-charge went to the place near the land of Vijaya Manandappa Sutar and later to a place as shown by accused Nos.1 and 2. There the place near the canal shown by the accused Nos.1 and 2 was dug up resulting in the discovery of a gunny bag (M.0.9),which contained a dead body. That dead body was identified by Namadeva's wife-P.W.1-Smt.Girijabai and Namadev's son-Sri Pandurganga (P.W.5) as that of Namadeva. In furtherance of the information furnished by the accused Nos.1 and 2 regarding involvement of other accused, a search was launched and accused Nos.4 and 5 were arrested on 7.2.2005. In furtherance of the voluntary information furnished by them, sticks M.Os.11 and 12

allegedly used by them to beat Namadev were recovered. The accused No.6 was arrested on 11.2.2005. The interrogation of accused No.6 resulted in leading them to the river and showing the place where, according to him, they had drowned the motorcycle (M-0.13) of Namadev after his murder. A swimmer-Lavappa Laxmappa Nagaral (P.W.15) was sent to that place, who brought up the said motorcycle (M.0.13). That was recovered under panchanama. Later the accused No.7 was arrested on 26.2.2005 at Panchagavi village and in furtherance of the information furnished by him, the pick-axe (M.0.14) allegedly used for burying the dead body was recovered. After further investigation, a charge sheet was placed against the accused.

The accused pleaded not guilty and claimed to be tried. The prosecution examined 23 witnesses and closed its case. About the deceased having been seen by the persons for the last time, the prosecution examined the deceased's wife (PW.1), the deceased's son (P.W.5) and P.W.s 10, 11 and 12. About the movements of the accused to connect

them with the murder of Namadev, prosecution has examined P.Ws.10, 13 and 16. Though P.W.13 has not supported the prosecution and P.W.16 only partially supported, the evidence of these two witnesses shows the movement of the accused Nos. 1, 2, 6 and 7. As regards the motive for murder, P.Ws 6, 17 and 18 have been examined. P.Ws. 2, 3 and 4 are panchas. P.W.14 dug up the land from where the gunny bag containing the dead body of Namadev was recovered. According to the prosecution, extra judicial confession had been made by the accused before P.W.9 and the drowned motorcycle was recovered after P.W.15 went down into the river and brought up the motorcycle. P.W.18 is the junior engineer, who has drawn the sketch of scene of the offence. Post mortem examination on the dead body was done by P.W.19 doctor. P.Ws. 20 to 23 are police officers.

The trial Court on the basis of the cumulative effect of the circumstantial evidence concluded that the prosecution had proved that it was the accused who had committed the murder of Namadev and had disposed of the dead body by putting it in a gunny bag and burying it near the canal of Chickakhandi village and throwing motor cycle in the river. In appeal, conviction of A-3 to A-5 was set aside as noted above. A-6 and A-7

were acquitted of all charges relating to Section 302 and 109 read with Section 149 IPC. The conviction of A-1 and A-3 under Sections 302 and 109 read with Section 149 IPC was converted to Section 302 read with Section 34 IPC. The conviction of A-1, A-2, A-6 and A-7 under Section 201 read with Section 149 IPC was converted to under Section 201 read with Section 34 IPC while the sentence is maintained.

4. Learned counsel for the accused appellants submitted that the circumstances relied on clearly established the accusations and the only case is recovery under Section 27 of Indian Evidence Act, 1872 (in short the `Evidence Act'). The present appellants are A-1, A-6 and A-7 so far as these appeals are concerned.

5. The basic challenge is that on the basis of statement made under Section 27 of the Evidence Act the conviction cannot be maintained because it cannot be said that the circumstances have been established.

6. Learned counsel for the respondent-State on the other hand supported the judgment.

7. As regards the involvement of the other accused, the prosecution relied on the recovery of the motorcycle in furtherance of the voluntary information furnished by the accused No.6. The said accused was arrested on 11.2.2005 and as spoken to by P.W.20 investigating officer, in furtherance of the voluntary information furnished by him, they went to the river near Chickakhandi where a place in the river was shown by the accused No.6 as the place, where motor cycle had been drowned. P.W.15-Lavappa

Laxmappa Nagaral had been taken there and he went into the river at the place shown by the accused No.6 and brought up the motorcycle M.0.15. The said motorcycle was later identified as that of Namadev. The cross-examination of P.W.15 does not show anything to doubt his version.

8. It was submitted by the appellants that according to P.W.16, the accused Nos.1 and 6 were seen in the police station on 3.2.2005 and this theory of the accused No.6 being arrested on 11.2.2005 and on his voluntary information furnished on that day, the motor cycle having been recovered in presence of P.W.15, cannot be believed. Of course P.W.16 in the cross-examination says that when he went to the police station, he saw the accused Nos. 1 and 6. It was submitted by the State that perhaps it may be a typographical mistake and it may be the accused Nos.1 and 2 since the records show that it is the accused Nos.1 and 2, who had been arrested on 3.2.2005. The possibility of typographical mistake is possible. However, even then taking into consideration the contention of the learned counsel for the appellants, at the most it may amount to an illegal custody by the police till 11.2.2005, thereafter recovering the motorcycle on 11.2.2005. That may create some doubt regarding the claim of the police with regard to the recovery. But considering the evidence of P.W.15, we find that this suspicion is unfounded. It is quite possible that the police detained accused no.6 unnecessarily from 3.2.2005 to 11.2.2005. We find no reason to discard the alleged recovery of motorcycle in furtherance of the information furnished by accused No.6. As regards the accused No.2, the prosecution relies on the deposition of P.W.7 who saw the accused Nos.1, 2, 6 and 7 near the canal at about 3 a.m. of 31.1.2005. In addition P.W.12 saw the accused Nos.1, 2, 6 and 7 near the bridge. Earlier on 30.1.2005 at about 11.00 p.m. all those four persons had been spotted by P.W.16. All these depositions conclusively show that from 11.00 p.m. on 30.1.2005 till about 4.00 a.m. of 31.1.2005, the accused Nos.1, 2, 6 and 7 were seen together. On complete perusal of the evidence, we find that on 30.1.2005 Namadev left his house at 4.00 p.m. and went to Mudhol on his motorcycle bearing No.KA-28/A 1688 (M.0.15). He was seen at Inspection Bungalow, Mudhol, at 8.00 p.m. by P.W.12-Kallanagouda Patil of Utturu village. Namdeva told P.W.12 that he was returning to Bommanabudni via Halki. At 9.00 p.m. he was seen at Halki by Jnaneshwara (P.W.11) going on the motorcycle towards Bommanabundi. Thereafter nobody saw him alive.

9. The accused Nos. l, 2 and 4 to 7 were seen by Bommanabudni bus stand at about 8.00 p.m. of 30.1.2005 by P.W.10 Vishnu Tulasigeri. The evidence of P.W.16 Laxmappa Mullurur shows that the accused Nos.2 to 7 were seen at 11.00 p.m. on that day on the motor cycle. That witness also saw the accused Nos. 1 and 6 on another motorcycle along with other. His evidence further shows that the accused No.7 was riding the motorcycle along with the accused No.2 on that motorcycle and another motorcycle was driven by the accused No.6-Hanamant Ramappa Kivudi on which the

accused No.1-Ningappa Yallappa Hosamani was sitting with a gunny bag. When he enquired from the accused No.1, about the gunny bag, the accused No.1 is stated to have replied that it contained jaggery block, which was to be given to his relative's house. It is submitted by the appellants that even if this is accepted as true, there was nothing wrong in Ningappa Yallappa Hosamani (accused no.1) taking a jaggery block to his relative's house and that cannot fasten the liability of transporting the gunny bag containing dead

body. The time on which this incident is stated to have happened is at about 11 p.m. on 30.1.2005 and later the same persons were seen near the canal with both the motorcycles. Therefore the story of gunny bag containing the jaggery block is not believable. As held by the Courts below it must have contained the dead body of Namadev. Taking into consideration this factor, we find that the prosecution has conclusively proved that the accused Nos.1, 2, 6 and 7 had disposed of the dead body of Namadev by putting it in a gunny bag and burying it at a place near the canal, which was detected in furtherance of the voluntary information furnished by accused No.1 and 2. It

is also proved that the motorcycle of Namadev was drowned in the river by the accused, which was later recovered in furtherance of the voluntary information furnished by accused No.6. As regards accused Nos.1 and 2, since the dead body of Namadev was recovered in furtherance of the voluntary information furnished by them, the natural presumption, in the absence of explanation by them is that it was those two persons, who had murdered Namadev and had buried the dead body.

10. As regards recovery of the dead body is concerned, the High Court noted as follows:

As regards the second ground urged by the learned counsel for the appellants, there also what has been stated is that a rumour had been spread that four persons had committed the murder of Namadeva and his dead body had been buried near the canal and later he was called on 2.3.2005 by Lokapur police. The mahazars regarding the place of offence of murder conducted on 3.2.2005 and the place were the dead body of Namadev was recovered were conducted in the early hours of morning of 3.2.2005

and it is not unlikely that information immediately spread in the village and immediately Namadev's dead body had been placed near the place of canal. Therefore, this cannot be taken as indicating the knowledge the people about the burial of the dead body even before the dead body of Namadev was detected in furtherance of the voluntary information furnished by the accused Nos.1 and 2. For this reason, we do not accept the interpretation put forth by the learned counsel for the appellants with regard to the recovery of dead body of Namadev. The evidence of P.W.20-investigating officer shows that the accused Nos.1 and 2 were arrested on 3.2.2005 at Mahalingapura and in furtherance of the interrogation, they furnished information and police and panchas were

led by the accused Nos.1 and 2 to a place near the canal. This claim of P.W.20 has been corroborated by the evidence of P.W.14-Basappa Ramappa Pujari, who says that he had accompanied the police and panchas to the place where the accused Nos.1 and 2 were taken and the accused Nos.1 and 2 showed a place as a place of burial of Namdev's body. Then, his deposition further shows that he and C.Ws 22, 24 and 25 were asked to dig the land and when they dug the land, they found a gunny bag. That gunny bag contained a dead body which was later identified by PWs 1 and 5 as the body of Nadadev. We have very carefully gone through the evidence of PWs 14 and 20 in this regard and find no material to disbelieve the version of PW-14 that the place was shown

by A-1 and A-2 and that when the place was dug up, they found a gunny bag containing Namadev's dead body. This evidence conclusively shows that the accused Nos. 1

and 2 had buried the said gunny bag containing the dead body of Namadev and that it was detected in furtherance of the voluntary information furnished by them.

11. In State of Maharashtra vs. Suresh (2000 (1) SCC 471) it was

observed as follows:

"Three possibilities are there when an accused points out the place where dead body or an incriminating material was concealed without stating that it was concealed by him. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the criminal court that the concealment was made by him. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act."

12. Above being the position, we find no merit in these appeals which are

accordingly dismissed.

(Dr. ARIJIT PASAYAT) ................J

(ASOK KUMAR GANGULY)..........J

New Delhi,

May 08, 2009

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RAPE AND MURDER – CONVICTION ON CIRCUMSTANTIAL EVIDENCE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.836 OF 2005

Aftab Ahmad Anasari ... Appellant

Versus

State of Uttaranchal ...Respondent

JUDGMENT

J.M. PANCHAL, J.

1. The appellant and one Mumtaz were prosecuted for commission of rape and murder of Yasmeen aged five years daughter of Nayeem Ahmad and for causing disappearance

of evidence of those offences. The learned Additional District and Sessions Judge, First FTC Court, Nainital, by judgment dated January 7, 2004, rendered in Sessions Trial No.252 of 1998, convicted the appellant and Mumtaz under Sections 302, 376 and 201 of Indian Penal Code (IPC) and imposed penalty of death sentence for commission of offence punishable under Section 302 IPC as well as R.I. for life for commission of offence punishable under Section 376 IPC and a fine of Rs.10,000/- in default R.I. for one year and R.I. for seven years and a fine of Rs.5,000/- in default R.I. for one year for commission of offence punishable under Section 201 IPC.

2. Feeling aggrieved, the appellant and Mumtaz preferred Criminal Appeal No. 36 of 2004 whereas Reference made under Section 366 of the Code of Criminal Procedure by the learned Additional Sessions Judge in view of death sentence passed against both the accused was registered as Criminal Reference 1 of 2004 before the High Court of Uttaranchal at Nainital. The Division Bench of the High Court, by judgment dated December 17, 2004, has rejected the Reference and partly allowed the appeal by acquitting accused Mumtaz but affirmed the conviction of the appellant under Sections 302, 376 and 201 IPC. The death penalty awarded to the appellant for commission of offence punishable under Section 302 IPC is modified and the appellant is sentenced to R.I. for life for commission of the offence punishable under Section 302 IPC. The High Court has further maintained sentence imposed on the appellant under Sections 376 and 201 IPC. The confirmation of the conviction of the appellant under Sections 302, 376 and 201 IPC by the High Court and imposition of different punishments for those offences, has given rise to the instant Appeal by Special Leave.

3. Mr. Nayeem Ahmad is resident at Mundia Pistor Village, Bajpur, District Udham Singh Nagar, Uttaranchal. His daughter Yasmeen aged five years having fair complexion and round face, wearing frock, underwear and sleepers was playing near his house at about 5.00 p.m. in the evening of February 5, 1998. It was noticed that she was missing from the place where she was playing and, therefore, Nayeem Ahmad made frantic search about Yasmeen at the places of all his relatives but she could not be traced. As search made by him did not yield any result, he filed a missing report on February 6, 1998 at Bajpur Police Station mentioning, inter alia, that his daughter had disappeared while playing near his house and, therefore, steps be taken to trace her out. On February 8, 1998, Report (Exhibit Ka.2) was lodged at Bajpur Police Station by

Shamim Ahmad who is real brother of Nayeem Ahmad stating, inter alia, that Yasmeen aged about five years daughter of his elder brother Nayeem Ahmad while playing near the house of Nayeem Ahmad had disappeared at about 5.00 p.m. in the evening of February 5, 1998 for which Nayeem Ahmad had lodged a missing report at the Police

Station, but at about 6.00 a.m. on February 8, 1998, her dead body was found lying on the public way in front of the house of Haji Khursheed, son of Bashir Ahmad of village

Bajpur and, therefore, legal action be taken. On receiving this information, concerned police personnel reached the place where dead body of the deceased was lying. The

inquest on the dead body of the deceased was held and necessary arrangements were made for sending the dead body for post mortem examination. The post mortem examination was carried out on February 8, 1998. The examination revealed that the deceased was subjected to rape and thereafter strangulated. On February 9, 1998, the Investigating Officer, on the basis of the information given by the informer, arrested both the accused persons under Sections 302, 376 and 201 IPC. While in custody, the appellant and Mumtaz made disclosure statements to the Investigating Officer pursuant to which the appellant discovered one frock with blood marks, one white cotton underwear with black stripes having blood stains and one bed sheet of light green colour with plenty of blood marks from the house of sister of the appellant. The articles discovered were seized under a panchnama and sent to forensic science laboratory for analysis. The Investigating Officer recorded the statement of those persons who were found to be conversant with the facts of the case. On receipt of report from the analyst and on completion of investigation, the appellant and Mumtaz were charge- sheeted in the Court of learned Judicial Magistrate, First Class for commission of offences punishable under Sections 302, 376 and 201 IPC.

The offences punishable under Sections 302 and 376 IPC are exclusively triable by a Court of Sessions. Therefore, the case was committed to the Court of learned

Additional District and Sessions Judge, Nainital for trial. The learned Judge framed necessary charges against the appellant and Mumtaz for commission of offences

punishable under Section 302, 376 and 201 IPC. The same were read over to them. They pleaded not guilty to the same and claimed to be tried. Therefore, prosecution examined

seven witnesses and produced documentary evidence to prove its case against the appellant and Mumtaz. After recording of evidence of prosecution witnesses was over, the learned Judge explained to the appellant and Mumtaz the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statement as required by Section 313 of the Code of Criminal Procedure, 1973. In the further statements, the appellant and Mumtaz pleaded ignorance in respect of certain facts whereas in relation to some other facts their claim was that they were false. The appellant and Mumtaz had expressed desire to examine defence witnesses which was granted by the learned Judge. The appellant, therefore, examined DW1, Ms. Bilkis and DW2, Lakhbinder Singh alias Lakha in defence. The learned Judge noticed that the case was entirely resting upon circumstantial evidence. After holding that the deceased died a homicidal death, the learned Judge appreciated the evidence and held that four circumstances, namely, that (1) both the accused were seen by PW-3, Naseed Ahmad, at about 4.30 a.m. on 8.2.1998 fleeing away from near the place where the dead body of deceased Yasmeen was found after some time; (2) on the disclosure statement made by the appellant, blood stained frock and underwear of the deceased and blood stained bed sheet were recovered; (3) underwears of both the accused, seized, were stained with human blood and semen; and (4) extra-judicial confession was made by the appellant before PW-5, Anand Swaroop, are firmly established, to bring home guilt

of the accused under Sections 302, 376 and 201 IPC. The learned Judge noticed that the chain of circumstances established was complete, cumulative effect of which was indicating that in all human probability, the offences were committed by the appellant and Mumtaz and by none other. In view of abovementioned conclusions, the learned Judge convicted the appellant and Mumtaz under Section 302, 376 and 201 IPC. Thereafter, the learned Judge heard the appellant and Mumtaz on the question of sentence to be imposed on them for commission of abovementioned offences. The learned Judge noticed that this was the rarest of rare case falling within the purview of guidelines laid down by this Court in Maulai & Anr. Vs. State of M.P. AIR 2000 SC 177 and imposed death penalty on both the accused for commission of offence punishable under Section 302 IPC. The learned Judge further imposed punishment of R.I. for life and a fine of Rs.10,000/- and in default R.I. for one year for commission of offence punishable under Section 376 IPC. The learned Judge further imposed sentence of R.I. for seven years and a fine of Rs.5,000/- and in default R.I. for one year for commission of offence punishable under Section 201 IPC by judgment dated January 7, 2004. The imposition of death sentence resulted into Criminal Reference under Section 366 of the Code of Criminal Procedure, 1973. The appellant and Mumtaz also being aggrieved by the judgment of the Trial Court preferred Criminal Appeal No.36 of 2004 before the High Court of Uttaranchal at Nainital. The reference and appeal were heard together. The High Court on re-appreciation of evidence came to the conclusion that three circumstances were proved by the prosecution, namely, (1) both the appellants were seen by PW3, Naseem Ahmad at about 4.30 a.m. on February 8, 1998 fleeing from near the place where the dead body of the deceased was found; (2) blood stained frock and underwear of the deceased and blood stained bed sheet were recovered pursuant to voluntary disclosure statement made by the appellant; and (3) extra judicial confession was made by the appellant before PW-5, Anand Swaroop. The Division Bench by judgment dated December 17, 2004 has partly allowed the appeal. The High Court has

set aside the conviction of Mumtaz recorded by the Trial Court but confirmed the conviction of the appellant recorded by the Trial Court under Sections 302, 376 and 201 IPC. The High Court has further modified the sentence of death imposed on the appellant for commission of offence punishable under Section 302 IPC and awarded R.I. for life whereas sentences awarded for commission of offences punishable under Sections 376 and 201 have been confirmed.

4. This Court has heard the learned counsel for the parties and considered the documents forming part of the appeal. It is relevant to notice that the prosecution has not

claimed that the rape and murder of the deceased was witnessed by anyone and no direct evidence regarding the same is adduced before the court. Admittedly, the whole case against the appellant rests on circumstantial evidence. The law relating to circumstantial evidence is well settled. In dealing with circumstantial evidence, there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion howsoever strong cannot be allowed to take place of proof and, therefore, the Court has to judge watchfully and ensure that the conjectures and suspicions do not take place of legal proof. However, it is no derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturization of actual incident but the circumstances cannot fail. Therefore, many a times, it is aptly said that "men may tell lies, but circumstances do not". In cases where evidence is

of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact must be proved individually and only thereafter the Court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of

these facts, by itself/themselves, is/are not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this

does not mean that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever extravagant and fanciful it might be. There must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the

innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. Where the various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. If the circumstances proved are consistent with the innocence of the accused, then the accused is entitled to the benefit of doubt. However, in applying this principle, distinction must be made between facts called primary or basic on the 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 judge the evidence and decide whether that evidence proves a particular fact or not and if that fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should be no missing links in the case, yet it is not essential that every one of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences or presumptions, the Court must have regard to the common course of natural events, and to human conduct and their relations to the facts of the particular case.

5. Having noticed the relevant principles governing a case based on circumstantial evidence, this Court proposes to consider the question whether the case against the appellant is proved. The appellant, at the time of incident was in his early 20's. He is resident of village Patia Nagla, P.S. Gatpur, Tehsil Thakurdwara, District Muradabad. His sister Ms. Bilkis, DW-1, was married to Kabir Ahmad of village Bajpur where the first informant is residing. The appellant used to visit and stay at the house of his sister. It may be mentioned that the Trial Court was of the view that four circumstances mentioned above were proved by the prosecution.

6. The fact that deceased Yasmeen was subjected to rape and died a homicidal death is not disputed before this Court by the appellant. This fact stands amply proved by the

reliable testimony of Dr. J.S. Rawat, who performed autopsy on the dead body of the deceased and contents of post mortem produced at Exhibit Ka.5.

7. Similarly the fact that naked dead body of deceased Yasmeen with injuries was found lying at about 6.00 a.m. on 8.2.1998 in front of the house of Haji Khursheed is

amply borne out from the trustworthy testimony of PW-1, Nayeem Ahmad, PW-2, Shamim Ahmad, inquest report Exhibit Ka.4 etc.

8. According to the Sessions Court and the High Court, one of the incriminating circumstances proved by the prosecution is that witness Naseem Ahmad had seen the appellant and another fleeing from near the place where the dead body of the deceased was found lying at about 4.30 am on February 8,1998. The learned counsel for the appellant submitted that the only witness produced by the prosecution to prove this circumstance is PW-3, Naseem Ahmad but the said witness does not speak of any source of light and his silence of not telling this fact to the Investigating Officer at the time of holding of inquest is most unnatural and, therefore, the High Court had erred in placing reliance on his evidence. Elaborating this argument, it was submitted that the statement of Naseem Ahmad under Section 161 was recorded on February 9, 1998 after the arrest of the appellant and Mumtaz was effected and he does not say that he had seen the accused carrying dead body or dropping any object in front of the house of Haji Khursheed. It was pointed out that he is a close relative of the complainant who asserted that before the report of recovery of dead body was lodged by Shamim, he had told Nayeem and Shamim that he had seen the appellant and Mumtaz running away from near the place where the dead body was found lying but no such fact was stated in the report made by witness Shamim Ahmad and, therefore, his claim that he had seen the appellant fleeing from near the place where the dead body was found lying should have been disbelieved. What was stressed was that according to the said witness, he and Jakir were going to jungle for answering the call of nature and seen the

appellant entering into the house of his sister but for the same reason, the appellant could have been out of his sister's house and, therefore, the appellant entering into the house of his sister could not have been treated as an incriminating circumstance. What was claimed was that neither this circumstance sought to be relied upon by the prosecution stands proved beyond doubt by witness Naseem Ahmad nor the same can be characterised as an incriminating circumstance and, therefore, the same should be ignored while appreciating the evidence against the appellant.

9. So far as the circumstance, namely, that the appellant and Mumtaz were seen fleeing away from near the place where the dead body of the deceased was lying is concerned, this Court finds that the prosecution has relied upon the testimony of PW2, Naseem Ahmad. After mentioning that younger daughter of his brother Nayeem had disappeared on February 5, 1998, the witness has mentioned that in the morning of February 8, 1998 at about 4.30 a.m. he himself and one Jakir were going towards jungle and when they reached near the house of Haji Khursheed, they had seen the appellant and Mumtaz running from near the house of Haji Khursheed and entering into the house of Kabir. It may be stated that Kabir is brother-in-law of the appellant, i.e., husband of Ms. Bilkis who is sister of the appellant. The witness has claimed in his evidence that he was knowing Aftab, i.e., the appellant and Mumtaz before the incident. According to this witness, when they came back from the jungle at that time, they learnt that on the same day, dead body of daughter of Nayeem Ahmad was found near the house of Haji Khursheed.

This witness was subjected to searching cross-examination by the defence. In his cross examination, the witness stated that his house was located after two houses

from the house of Haji Khursheed. According to him Jakir who is his brother-in-law had come to his house from village Mudia Kalan. During this cross-examination, the witness also explained that Jakir was real brother-in-law of Nayeem and, thus, deceased was niece of Jakir. What was maintained by the said witness was that both of them had proceeded to jungle at about 4.30 a.m. for answering the call of nature and had seen the appellant and Mumtaz while they were going to jungle. According to this witness, the Investigating Officer had recorded his statement on the next day of recovery of the dead body. It was further stated by this witness in his cross-examination that the deceased was missing since February 5, 1998 whereas her dead body was found on February 8, 1998. The witness has further mentioned that by the time they had come back from the jungle, the dead body had already been found and one missing report was written on February 6, 1998 which was scribed and lodged by Shamim after the dead body was found. It was stated by him that he was not present at the time of writing of the report by Shamim but before the report was written, Shamim and Nayeem were told by him and Jakir that they had seen the appellant and Mumtaz running away from near the place where the dead body was lying. The witness further mentioned in his cross-examination that the report was scribed after arrival of sniffer dog called by the police. It was explained by the witness that sniffer dog had been brought at 7.30 a.m. The suggestion made by the defence that he had not seen anyone running away from near the place where the dead body was lying and was deposing falsely on account of relationship with Nayeem was emphatically denied by him.

10. A fair reading of the evidence tendered by this witness makes it evident that though he is relative of Nayeem, he has stated the facts seen by him in a simple manner and

without any noticeable embellishments. If this witness wanted to implicate the appellant falsely in the case because of his relationship with the first informant, nothing

prevented him from stating before the police and the court that he had seen the appellant carrying the dead body of the deceased and throwing the same near the house of Haji

Khursheed.

11. However, this Court finds that he has not made any false claim/exaggeration in his testimony at all and stated that he had seen the appellant fleeing from near the place where the dead body was lying. The reason as to why in the early morning he was out of his house is stated by him, which this Court finds to be most natural. It could not be

even remotely suggested by the defence that a constructed latrine was available in the house of witness Naseem Ahmad and, therefore, it was not necessary for him to move out of his house in the early morning of February 8, 1998 to go to jungle for answering call of nature. What is relevant to notice is that at the time when this witness had seen the appellant running away from near the place where the dead body was found, he had not learnt that the dead body was already found. Further, his house is located after two

houses from the house of Haji Khursheed and the house of Ms. Bilkis, who is sister of the appellant and with whom the appellant was residing at the relevant point of time, is quite near to the house of Haji Khursheed. Therefore, the claim made by the witness that he had seen the appellant hurriedly entering the house of his sister sounds probable. No major contradiction and/or omission with regard to his earlier statement recorded before the police nor any other material could be brought on record by the defence to impeach his credibility. Merely because Shamim did not refer to the fact that he was told by Naseem Ahmad that Naseem Ahmad had seen the appellant running away from near the place where the dead body was lying in his report to the police, cannot be a ground to disbelieve this witness. The learned Judge of the Trial Court who had advantage of observing demeanour of this witness has found the witness to be truthful. The assertion made by the witness that the appellant and Mumtaz were known to him could not be

disputed by the defence at all. It was claimed by this witness in terms before the Court that he had seen the appellant running away from near the place where the dead body was lying. When it was stated by the appellant that he had seen the appellant running away from near the place where the dead body was lying, it was for the defence to suggest that in the early morning of February 8, 1998, no source of light was available and, therefore, he could not have seen the appellant so running away. However, this

Court finds that even remotely it was not suggested to the witness that there was no source of light and, therefore, he could not have seen the appellant running away from near the place where the dead body was lying. The plea that this witness maintained silence at the time when the inquest on the dead body of the deceased was held and did not tell the Investigating Officer that he had seen the appellant running away from near the place where the dead body was lying would indicate that he had not seen the appellant running away, is merely stated to be rejected. The occasion for this witness to tell the Investigating Officer that he had seen the appellant running away from near the place where the dead body was lying would arise only when the Investigating Officer was to record his statement under Section 161. The basic purpose of holding inquest on the dead body is to ascertain prima facie the nature of death and to find out whether there are injuries on the dead body or not. The inquest punchnama cannot be treated as statement of the witness recorded under Section 161 of the Code of Criminal Procedure wherein he is supposed to narrate the facts seen by him. Therefore, it is not true to say that he had maintained silence and had not told the Investigating Officer at the time of holding of the inquest that he had seen the appellant running away from near the place where the dead body was lying. The so called silence on the part of this witness cannot be considered to be unnatural at all nor the same makes this testimony doubtful in any manner. It is true that the appellant who was staying in the house of his sister cannot be said to have committed any unnatural conduct by entering into the house of his sister. However, it is not the case of witness Naseem Ahmad that he had seen the appellant calmly entering into the house of his sister. What is mentioned by the witness is that he had seen the appellant running away from near the place where the dead body was found and hurriedly entering house of his sister. The `running away' part attributed to the appellant could not be explained by him. In his further statement, it could not be explained by the appellant as to what made him running away from near the place where the dead body was found and hurriedly entering into the house of his sister. On reappraisal of the evidence of this witness, this Court finds that neither the Trial Court nor the High Court committed any error in placing reliance on the testimony of this witness for coming to the conclusion that one of the incriminating circumstances, namely, that the appellant was found fleeing from near the place where the dead body

was found lying was satisfactorily proved.

12. Another circumstance sought to be relied upon by the prosecution is that the appellant had made voluntary disclosure statement pursuant to which blood stained clothes of the deceased were discovered. The disclosure statement was made by the appellant in presence of PW4, Rais Ahmad. To prove the recovery of clothes of the

deceased, the prosecution has relied upon the testimony of two witnesses, namely, PW4, Rais Ahmad and PW7, Praveen Kumar Tyagi, the Investigating Officer. PW4, Rais Ahmad has stated that on February 8, 1998 Police had come to village Bajpur at about 3.30 p.m. and they had brought with them the appellant and Mumtaz. According to this witness, he and Lakhvinder Singh were standing at the place where the appellant was brought by the police. It is mentioned by the witness that police had called him and Lakhvinder Singh and asked them to accompany them. What is stated by the witness is that the appellant and Mumtaz led them to the house of Kabir and the appellant took out one sleeveless frock, one underwear and one green coloured bed sheet from the foodgrains room of the house of Kabir. The witness further stated that the abovementioned articles were kept hidden under the leaves and after taking out those articles, the appellant had told that these were the clothes of Yasmeen which he had concealed. It was further stated by the witness that seizure memo was prepared by the Investigating Officer on the spot and his signature was obtained thereon after it was read over to him. The witness identified his signature on the memo (Exhibit Ka.3). In his cross-examination, the witness stated that Shamim who is his elder brother was brother-in-law of the complainant. According to this witness, the appellant used to live in the house of his sister. What was mentioned by the witness was that Shabnam, daughter of sister of the appellant, was of the age group of Yasmeen and he was not remembering correctly whether Kabir, i.e., brother-in-law of the appellant was living with his family in the house from which the appellant had taken out the clothes of the deceased. It was

mentioned by the witness that the sniffer dog had first smelt the dead body and then the said dog had entered into house of Kabir and picked up the appellant. It was further stated by the witness that the dog did not pick up Mumtaz and after the smelling by sniffer dog, the police had arrested the appellant and Mumtaz in his presence. What is testified by the witness is that many persons had gone up to the police station and he had also gone to the police station where his signatures were obtained on Exhibit Ka.3 at about 4.00 p.m. The suggestion made to the witness by the defence that no clothes were recovered in his presence and that he was deposing falsely was emphatically denied by him.

13. The testimony of Investigating Officer makes it more than clear that after arrest, the appellant had made disclosure statement and willingness to show the place where the clothes of the deceased were concealed by him. This fact is also mentioned in Exhibit Ka.3 which was prepared contemporaneously. According to the Investigating Officer, he had made efforts to summon local witnesses from Akari Pistor but none had agreed to be a witness and, therefore, Rais Ahmad and Lakhvinder Singh were summoned to be panch witnesses on way to the place to be pointed out by the appellant where he had concealed the clothes of the deceased. According to this witness, the appellant and Mumtaz led the police party and the appellant took out clothes of the deceased, i.e., blood stained frock and underwear as well as one bed sheet from Kuria meant for storing foodgrains. The witness further stated that clothes of the deceased and bed sheets were kept in the western corner of the room. The witness also informed the Court that underwears of both the accused were seized and they appeared to be stained with semen at some places. The argument that witness Rais Ahmad has not stated about the disclosure statement at all and, therefore, discovery of the clothes of the deceased should be disbelieved cannot be accepted. As explained by the Investigating Officer, the appellant and Mumtaz had made disclosure statement when they were at the police station. The said fact is mentioned in the document prepared contemporaneously. As explained by the Investigating Officer, he had made efforts to summon two independent witnesses to act as panchas but none had shown willingness to do so and, therefore, he had requisitioned services of Rais Ahmad and another on way to the house of sister of the appellant from where the clothes of the deceased were recovered. The contention that that part of the disclosure statement showing that recovered frock and underwear were of the deceased and the bed sheet was one over which rape was committed cannot be read in evidence has no substance. In the leading case of Pulukuri Kottaya & Ors. Vs. Emperor AIR 1947 PC 67 what would be admissible in a disclosure statement has been explained by the Privy Council giving illustration as under :

"The statements to which exception is taken in this case are first a statement by accused No.6 which he made to the police sub-Inspector and which was reduced into writing, and is Exhibit "P." It is in these terms :

`The mediatornama written at 9 a.m. on 12.1.1945, in front of Maddineni Verrayya's choultry and in the presence of the undersigned mediators. Statement made by the accused Inala Sydayya on being arrested.

About 14 days ago, I Kotayya and people of my party lay in wait for Sivayya and others at about sunset time at the corner of Pulipad tank. We, all beat Beddupati China Sivayya and Subayya, to death. The remaining persons, Pullayya, Kotayya and Narayana ran away. Dondapati Ramayya who was in our party received blows on his hands. He had a spear in his hands. He gave it to me then. I hid it and my stick in the rick of Venkatanarasu in the village. I will show if you come. We did all this at the instigation of Pulukuri Kotayya.'

(Signed) Potla China mattayya.

( " ) Kotta Krishnayya.

12th January, 1945. (Sgd.) G. Bapaiah,

Sub-Inspector of Police.

The whole of that statement except the passage "I hid it (a spear) and my stick in the rick of Venkatanarasu in the village. I will show if you come" is inadmissible. In the evidence of the witness Potla China Mattayya proving the document the statement that accused 6 said "I Mattayya and others went to the corner of the tank-land. We killed

Sivayya and Subayya" must be omitted.

A confession of accused 3 was deposed to by the police Sub-Inspector, who said that accused 3 said to him :

`I stabbed Sivayya with a spear, I hid the spear in a yard in my village. I will show you the place."

The first sentence must be omitted. This was followed by a Mediatornama, Ex.Q.I, which is unobjectionable except for a sentence in the middle, `He said that it was with that spear that he had stabbed Boddapati Sivayya,' which must be omitted."

Thus, the part of the disclosure statement, namely, that he was ready to show the place where he had concealed the clothes of the deceased is clearly admissible under

Section 27 of the Evidence Act because the same relates distinctly to the discovery of the clothes of the deceased from that very place.

The contention that even if it is assumed for the sake of argument that the clothes of the deceased were recovered from the house of the sister of the appellant pursuant to the

voluntary disclosure statement made by the appellant, the prosecution has failed to prove that the clothes so recovered belonged to the deceased and, therefore, the recovery of the clothes should not be treated as an incriminating circumstances is devoid of merits. First of all, what is relevant to notice is that in the missing report, it was mentioned by Nayeem Ahmad that his daughter aged five years, who was wearing frock and underwear, was missing from near the house while playing.; Thus, the wearing of the frock and underwear was mentioned by the father of the girl at the first available opportunity. The statement by Nayeem, PW1, as well as statement made by Shamim, PW2, that there were no clothes on the dead body of the deceased has gone unchallenged. Naturally, therefore, it was necessary for the Investigating Officer to find out as to where the clothes put on by the deceased were concealed. What is relevant to notice is that Ms. Bilkis who is sister of the appellant and who is examined as DW1 mentioned in her testimony before the Court that the police had taken into custody the clothes belonging to her daughter Shabnam. However, the record of the case shows that the frock and the underwear recovered from the house of Ms. Bilkis pursuant to disclosure statement made by the appellant were blood stained. It was never the case of Ms. Bilkis that the frock and underwear recovered or seized by the police were blood stained and belonged to her daughter Shabnam. Further, the clothes were recovered pursuant to the voluntary disclosure statement made by the appellant on February 9, 1998 whereas Ms. Bilkis made claim that the clothes, which belonged to her daughter, were recovered and seized on September 30, 2003 when she was examined by the appellant as one of the defence witnesses. If the police had seized the clothes belonging to her daughter, Ms. Bilkis would not have maintained tacit silence for roughly about more than five years and would have made grievance before higher police officers or court within reasonable time. A bare reading of her testimony makes it more than clear that she had come to depose before the Court to save the appellant who is her real brother and stated wrong facts for the first time before the Court. Her case that the police personnel had given 2 to 4 blows of stick to her and threatened her that she and her husband would be implicated in the case, does not inspire confidence of this Court. Further, Exhibit Ka.3 which is seizure memo of the clothes of the deceased recovered from the house of Ms. Bilkis pursuant to the disclosure statement made by the appellant, mentions that the frock recovered was made of terry-cotton fabric and its upper portion was white whereas lower portion was brown coloured and there were prints of flowers. The panchnama further indicates that it was sleeveless and stained with blood marks. Similarly, underwear discovered was made of cotton. It was white in colour with black stripes having blood stains. Though Bilkis who was examined as DW1 claimed that the clothes recovered from her house belonged to her daughter Shabanam, she could not give description of either frock or the underwear seized during the course of her testimony before the court. On overall view of the matter, this Court finds that it was satisfactorily proved by the prosecution that the frock and underwear, recovered from the house of DW1 Ms. Bilkis pursuant to the voluntary disclosure statement made by the appellant, belonged to the deceased.

14. Yet another circumstance relied upon by the prosecution is that the underwear of the appellant was stained with blood and semen. The fact that underwear put on by the appellant was seized under a panchnama is not disputed on behalf of the appellant at all. The High Court ignored this circumstance stating that the appellant was

young and, therefore, find of semen stains was natural. However, the High Court ignored the material fact that in normal course, the underwear would not have blood stains at all and, therefore, it was for the appellant to offer explanation as to under what circumstances stains of blood were found on his underwear, seized by the police during

the course of investigation. The fact that the underwear of the appellant seized by the police had human blood stains is sufficiently proved by the contents of report of Chemical Analyst. The fact that the blood stained underwear put on by the appellant was seized after four days does not make any dent in the prosecution case on the ground that a person would not move with such blood stained underwear for 3 - 4 days. One cannot lose sight of the fact that those stains were not visible and even the Investigating Officer

had stated that on examination the underwear put on by the appellant appeared to be stained with semen at some places. If blood stains are found on the shirt or pant of a

person then normally such person would not move in the village with those clothes on, because stains of blood would be visible and noticed by anyone. However, it is almost

difficult for anyone to notice stains of blood on underwear worn by a person. Further, the sense of cleanliness of a rustic villager cannot be ignored by the Court. While recording the statement of the appellant under Section 313 of the Code, it was put to him by the learned Judge that during the course of investigation his blood stained underwear was seized by the Police and his explanation was sought. In answer to the said question, it was never claimed by the appellant that the underwear seized was not blood stained and that another underwear was substituted in place of his underwear which was seized. Thus, this Court finds that the High Court was not justified at all in ignoring the circumstance sought to be relied upon by the prosecution that blood stained underwear of the appellant was recovered during the course of investigation.

15. Another circumstance sought to be relied upon by the prosecution is that the appellant made extra judicial confession before PW5, Anand Swaroop. The evidence of this witness shows that he was one of the panchas when inquest on the dead body of the deceased was held. During the course of his testimony, the witness identified his

signature on the inquest report which was produced by the prosecution at Exhibit Ka.4. According to this witness, on February 23, 1998, he had been to Kasipur Court in

connection with some work. What is asserted by the witness is that the appellant who is brother-in-law of Kabir had come to Court premises and told him near the shops that he and Mumtaz had killed Yasmeen after committing rape on her. The witness further asserted that the reason for making extra judicial confession by the appellant was

that he was ex-pradhan of the village and the appellant was under an impression that the witness would be able to help him by approaching the police. This witness in no uncertain terms asserted before the court that he had told the Investigating Officer about the extra judicial confession made by the appellant. In his cross-examination, the witness stated that police had recorded his statement only once. According to the witness, police had recorded his statement sometime between 23 to 29th February, 1998 in the village. What is mentioned by the witness in his cross-examination is that the appellant had come after February 23, 1998 and, therefore, he had not thought it necessary to tell the police about the extra judicial confession made by the appellant. The suggestion made by the defence that the police used to visit house of this witness daily or that the witness used to go to the police station daily, is denied by the witness. The manner in which this suggestion is made to the witness indicates that the appellant was entertaining a notion that the witness would be in a position to help him because the

witness that the witness was going to the Police Station daily and policemen were also visiting him. In the cross-examination also, the witness maintained that the appellant

had met him on February 23, 1998 in the court premises and neither the appellant nor Mumtaz was in the lockup nor inside the court room and that the appellant had made

the confession near the shops. The witness explained to the court as to why he had gone to the court and according to him he had gone to the court premises to meet one Ashish

Sharma, legal adviser of the bank for getting his brother's NOC prepared. The witness further mentioned before the Court that the appellant and Mumtaz had met him between

11.30 and 12 noon. The suggestion made by the defence that it was wrong to say that the appellant had made any confessional statement was emphatically denied by him. It may be mentioned that this witness in the cross-examination had stated that the appellant was not on talking or visiting terms with him before February 23, 1998 and, therefore, it was argued that there was no reason for the appellant to confide in this witness. However, what is relevant to notice is that the witness was ex-pradhan of Bajpur village. Ex-Pradhan certainly enjoys a status in a small village. The case of the defence was that the appellant was knowing that the witness was close to the police and

was going to the Police Station daily. Under the circumstances, thinking that the witness would be able to render some help to him, the appellant had made extra

judicial confession. The Court, on re-appreciation of evidence, finds that it is not brought on the record of the case that this witness was on inimical terms with the appellant. In fact, this witness does not belong to the community of the appellant and belongs to another community. There was no earthly reason for this witness to come to the court and depose falsely about the extra judicial confession made by the appellant. Though extra judicial confession is considered to be a weak piece of evidence by the courts, this Court finds that there is neither any rule of law nor of prudence that the evidence furnishing extra judicial confession cannot be relied upon unless

corroborated by some other credible evidence. The evidence relating to extra judicial confession can be acted upon if the evidence about extra judicial confession comes from the mouth of a witness who appears to be unbiased and in respect of whom even remotely nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused. In State of U.P. vs. M.K. Anthony AIR 1985 SC 48, this Court, while explaining the law relating to extra judicial confession, ruled that if the word spoken by the witness are clear, unambiguous and unmistakable one showing that the accused is the perpetrator of the crime and nothing is

omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra judicial

confession can be accepted and can be the basis of a conviction. According to this Court, in such a situation, to go in search of corroboration itself tends to cause a shadow of doubt over the evidence and if the evidence of extra judicial confession is reliable, trustworthy and beyond reproaching, the same can be relied upon and a conviction can be founded thereon. Here, in this case, it is proved by the prosecution that PW5, Anand Swaroop was not on inimical terms with the appellant at all. After subjecting his evidence to a rigorous test on the touchstone of credibility, this Court finds that extra judicial confession referred to by the witness is reliable and is rightly accepted by the Trial Court and the High Court. The contention that when the appellant was being brought to the court, he was in custody and, therefore, the extra judicial confession referred to by PW5 would be hit by the provisions of Section 26 of the Evidence Act and could not have been received in evidence, cannot be accepted. As observed earlier, the record shows that the appellant and another were produced before the Court for extension of judicial remand. The appellant could not probablise his defence that he was in custody of police officer. He could not name the police officer who had brought him with Mumtaz to the Court premises for extension of judicial remand nor it is his case that to the hearing of the police officer who brought him to the court premises, he had made confessional statement before PW5. On the facts and in the circumstances of the case, This Court is of the opinion that it is not probablised by the defence that the appellant was in custody of police officer while he had made extra judicial confession before PW5. The evidence relating to extra judicial confession inspires confidence of this Court. On this point, there is concurrent finding by the courts below and no case is made out by the appellant to interfere with the said finding in the present appeal.

16. The net result of the above discussion is that the prosecution has proved satisfactorily and beyond shadow of doubt following facts:

(1) The deceased went missing in the evening of February 5, 1998 when she was playing near her house.

(2) Her naked dead body was found at about 6 a.m. on February 8, 1998 lying on public way in front of house of Haji Khursheed.

(3) She was subjected to rape and died a homicidal death.

(4) The appellant was seen fleeing away from near the place where the dead body of the deceased was lying at about 4.30 a.m. on February 8, 1998.

(5) Blood stained frock and blood stained underwear of the deceased concealed in the house of sister of the appellant, were recovered pursuant to voluntary disclosure statement made by the appellant while in police custody.

(6) Underwear of the appellant seized during the course of investigation was found to be stained with blood and semen.

(7) The appellant made extra judicial confession before PW5, Anand Swaroop.

17. The cumulative effect of the abovementioned facts taken together is conclusive in establishing the guilt of the appellant. The chain of circumstantial evidence is complete and does not leave any reasonable ground for conclusion consistent with the innocence of the appellant. The chain of circumstances is such as to show that within all human probability the rape and murder of the deceased were committed by the appellant and none else and he had also caused disappearance of evidence of those offences. This Court further notices that this Court in Vasa Chandrasekhar Rao vs. Ponna Satyanarayana & Anr. [(2000) 6 SCC 286] and Geetha vs. State of Karnataka [(2000) 10 SCC 72] while explaining the law relating to circumstantial evidence has ruled that where circumstances proved are put to the accused through his examination under Section 313 of the Code and the accused merely denies the same, then such denial would be an additional link in the chain of circumstances to bring home the charge against the accused. As indicated earlier, it is proved by cogent and reliable evidence that the appellant had committed rape on the deceased and thereafter murdered her. Here in this case, the incriminating circumstances proved were put to the appellant while recording his statement under Section 313 of the Code of Criminal Procedure. In his further statement, recorded under Section 313, the appellant has merely denied the same.

Therefore, such denial on the part of the appellant and failure to explain the circumstances proved will have to be treated as an additional link in the chain of circumstances to bring home the charge against the appellant. The circumstances proved establish the guilt of the appellant beyond reasonable doubt.

18. Thus, this Court does not find any substance in the appeal and the same is liable to be dismissed. Accordingly, the appeal fails and is dismissed.

[J.M. Panchal] .................................J.

[T.S. Thakur] ................................J.

New Delhi;

January 12, 2010.

KILLER MOTHER

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 212 OF 2010

(Arising out of S.L.P.(Crl.) No.5813 of 2007)

Satni Bai .............. Appellant

Versus

State of Madhya Pradesh (Now Chhattisgarh) ..............Respondent

JUDGMENT

H.L. Dattu, J.

"A mother is the truest friend we have, when trials

heavy and sudden, fall upon us; when adversity takes

the place of prosperity; when friends who rejoice with

us in our sunshine desert us; when trouble thickens

around us, still she cling to us, and endeavor by her

kind precepts and counsels to dissipate the clouds of

darkness, and cause peace to return to our hearts"

- Washington Irving

Leave granted.

2) It is in this backdrop, we seek to introduce the facts of this case : A wicked mother is facing life sentence having been convicted under Section 302 of the Indian Penal Code for killing her own son with an axe by the Court of First Additional Judge, Ambikapur in Case no. 366 of 1996. On appeal, the conviction is upheld by the Division Bench of the Chhattisgarh High Court.

3) The appellant, Satni Bai is the mother of the deceased. She belongs to a tribal community. She has filed this appeal from prison, where she is undergoing her sentence of life imprisonment. She is represented by amicus curiae in this appeal.

4) The case of the prosecution is that, on 18.8.1996, Heera PW-1 and his elder brother Naihar Sai had gone to the forest in the morning to collect wood and at about 1.00 P.M., they returned to the house and when they were sitting inside the house, they heard the cries of his daughter, Sumitra PW-4 and Anita, the daughter of his younger brother. On hearing the cries, they came out of the house and went towards the side from where the sound of cries were heard and saw Kannilal (deceased) lying in a pool of blood. Heera lodged the report P-1 in the Police Station, Sitapur. A.K. Tiwari PW-7 was officiating in the post of Station House Officer, Sitapur. He had recorded the statements of Heera PW-1 Balobai PW-2 and Sumitra PW-4. Heera PW-1 had stated that the appellant/accused was standing near the dead body of Kannilal with a bloodstained axe in her hand. As the appellant was attempting to run away from the scene of crime, he instructed his wife Balobai PW-2 to stop her and snatch the bloodstained axe from her. He had also stated, that, there were bloodstains on the clothes of the appellant as well. Balobai PW-2 in her statement before the police had stated, on the date of the incident they were sitting in the house and on hearing the cries of her daughter Sumitra PW-4, she came out of the house and saw appellant's son was lying dead and she saw the appellant standing near the dead body with the wooden part of the axe in her hand and the metal part of the axe on the floor. She had also stated, that, when the appellant started running away from the place, on instructions from her husband, she caught hold of appellant and locked her inside the house.

5 ) After recording the report P-1, the Station House Officer, Sitapur, left for the scene of occurrence and after giving notice to the Panchas, he had prepared Panchanama of the dead body of Kannilal. He had taken into his possession the blood stained axe on production by Heera PW-1 and also blood stained saree of the accused. He had also taken into possession the blood stained soil and plain soil from the place of occurrence. The investigating officer had also prepared the site plan. Thereafter, the dead body of deceased Kannilal was sent to the hospital situated at Sitapur for post mortem examination. The post mortem was carried out by Dr. K.K Datta PW-8, who in his detailed report had stated that the axe wound on the left side of the head of the deceased was sufficient to cause the death. The blood stained articles were sent for examination to the Forensic Science Laboratory and, according to the report, blood was found on the saree of the accused and the weapon of offence - axe. After completion of the investigation, a charge sheet was filed against the appellant in the court of Judicial Magistrate, First Class, Ambikapur, who in turn committed the case to the Sessions Judge for trial.

6) The prosecution in order to establish the charge against the appellant/accused, examined eight witnesses including Heera PW-1, his wife Balobai PW-2 and their daughter Sumitra PW-4, but were declared hostile and cross examined by State counsel. The accused when questioned under Section 313 of the Criminal Procedure Code, denied all the incriminating circumstances brought against her and reiterated about her being innocent.

7) The trial court raised the following questions for determination:

1) Whether the prosecution was successful in establishing that the death was homicidal in nature ?

2) Whether the prosecution was successful in establishing that the accused with the intention of causing death, caused the death of Kannilal?

8) To answer the first question in the affirmative, the trial court has placed reliance on the post mortem report of the doctor. To answer the second question, the trial court has taken into consideration the circumstantial evidence available on record, since the sole eye witness Sumitra PW-4 has turned hostile. The trial court had also taken other factors into consideration like the recovery of bloodstained axe and saree of the appellant, for which there was no proper explanation on the part of the appellant. Based on these materials on record, the trial court after holding the appellant guilty for the commission of offence under Section 302 of the Indian Penal Code for committing the murder of her son Kannilal has sentenced her to undergo imprisonment for life.

9) Since the appeal filed against the judgment and order of the trial court is dismissed by the High Court, the accused is in appeal before us.

10) We have heard amicus curiae for the appellant and the learned counsel for the State. The learned amicus-curiae submitted that the evidence on record does not establish the case of homicide and that at any rate the chain of circumstances is not so complete as to lead to the hypothesis of guilt of the accused.

11) It has been consistently laid down by this Court, that, when a case rests only on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. [See State of U.P. vs. Satish, (2005) 3 SCC 114].

12) In Joseph vs. State of Kerala, [(2000) 5 SCC 197], the court has explained under what circumstances conviction can be based purely on circumstantial evidence. It is observed, that, "it is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavor in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused."

13) This court in the case of Padala Veera Reddy v. State of Andhra Pradesh, (AIR 1990 SC 79), has observed that when a case rests on circumstantial evidence, the following tests must be satisfied:

(i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(iii)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

(iv)the circumstantial evidence in order to sustain conviction 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 in consistent with this innocence.

14) In C. Chenga Reddy and others v. State of Andhra Pradesh, (AIR 1996 SC 3390), this Court has held that:-

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

15) In State of U.P. vs. Ashok Kumar Srivastava, [(1992) 2 SCC 86], it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon

must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of the guilt.

16) The principles that would emerge from these decisions is that conviction can be based solely on circumstantial evidence, but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court.

17) Keeping in view the settled legal principle, we have re-appreciated the evidence on record. It is true that this case is not of direct evidence of committing murder of deceased Kannilal by the accused/appellant, who is none other than the mother of the deceased, but is based on circumstantial evidence and the circumstances brought on record by the prosecution are of two categories: That the accused was seen at the place of occurrence holding blood stained axe in her hand near the dead body of the deceased Kannilal and she also tried to run away from the place of occurrence; that the axe which was snatched from the accused by Balobai and the saree of the accused were found stained with the blood. To prove the first circumstance, the prosecution has examined Heera PW-1, Balobai PW-2 and Sumitra PW-4. PW-1 has stated that on the fateful day when he returned from the forest at about 1.00 P.M., he heard the cries of Sumitra and came out of the house, went towards the court yard of Naihar Sai and saw the dead body of Kannilal in the court yard. Accused was standing there holding axe in her hand and he lodged the report, P-1. This witness has been declared hostile by the prosecution. The prosecution was allowed to cross examine this witness, on which he has stated that the portion `A' to `A' of the report P-3 shows that the girls were crying that the aunt has murdered Kannilal. The accused was running away with the axe and the axe was snatched from her and she was tied, all this was informed by him while lodging the report, P- 3. He had also stated in the report P-3, that the axe was smeared with blood and hair and accused's garments were also stained with blood. In the cross-examination, he has stated that the place of occurrence was the house of Naihar Sai who is his brother. His wife Balobai was scolding Satni (accused) and on their remonstrations, Satni (accused) tried to run away, but, before that the accused was sitting by the side of her son Kannilal (deceased). The above evidence of Heera PW-1 is

corroborated by the evidence of Balobai PW-2 and Sumitra PW-4. In the cross-examination of these witnesses, the defence has not been able to elicit any circumstance which shows that the accused was not present when Heera PW-1 and Balobai PW-2 went to the scene of occurrence and, therefore, the presence of the accused at the place of occurrence near the dead body of her son Kannilal holding blood stained axe in her hand is established. It is also established from the evidence of these witnesses that the accused tried to run away from the place of occurrence and she was caught by Balobai PW-2. These witnesses are closely related to the appellant. From their deposition, a clear and consistent picture emerges that when they gathered at the courtyard being alarmed by the cries of Sumitra (daughter of Heera) and Anita (daughter of the appellant), they saw that the appellant was standing with a bloodstained axe near the body of her son, Kannilal. She also tried to run away, and Balobai restrained her and seized the axe from her possession. The axe as well as the saree of the appellant was blood stained according to the witnesses. There are no inherent contradictions in the testimony of these witnesses. The defence has been unable to dispel the chain of events which emerge from the testimony of these witnesses.

18) Next comes the second circumstance. The blood stained axe and the blood stained saree of the accused was taken into possession by the investigating officer as has been recorded in the seizure memo. They were sent to Forensic Science Laboratory for examination and the report received mentions that both the articles were found blood stained. Therefore, it is proved beyond reasonable doubt that the accused was standing with the blood stained axe near the dead body of the deceased Kannilal.

19) The third circumstance is the post mortem report prepared by Dr. K.K Datta, which revealed the following wounds on the body of the deceased:

i. One incised wound measuring 12 X 1.5 cm till mandible bone deep in the cheek.

ii. Incised wound measuring 10 X 1.5 cm on left side behind the head, from which the brain was visible.

iii. Incised wound 6 X 1 cm deep till bone, on left side of the neck, deep till bone.

iv. Incised wound 7.5 X 1.5 cm deep till vertebrae.

According to Dr. Datta, wound No.2 was life endangering and there is no doubt this was caused by the axe which was recovered from the hands of the accused. We find that the post mortem report coupled with the testimony of the witnesses presents a very clear and cogent chain of the events which occurred on the fateful day unerringly points towards the guilt of the appellant. The picture emerging has also not been refuted satisfactorily by the defence.

20) The learned Amicus Curiae appearing for the appellant submits that the appellant is the mother of the deceased child and it is not possible for a mother to possibly kill her own child. She further submits that because of the illiteracy and ignorance of the appellant, she has been falsely implicated for the death of her child.

21) Motherhood is one of the most precious gifts endowed upon mankind and there is no relationship more pristine and pure than that of a mother and her child. No mother in normal circumstances can tolerate even a scratch on the body of her child. Basic instinct of a mother is well explained by a well known author Washington Irving

in one of his books, wherein he has said, that, "a father may turn his back on his child; brothers and sisters may become inveterate enemies; husbands may desert their wives, and wives their husbands. But a mother's love endures through all; in good repute; in bad repute, in the face of the world's condemnation, a mother still loves on, and still hopes that her child may turn from his evil ways, and repent; still she remembers the infant smiles that once filled her bosom with rupture, the merry laugh, the joyful shout of his childhood, the opening promise of his youth; and she can never be brought to think him an unworthy." In the present case, the appellant was found standing near the dead body of her son with a bloodstained axe in her hand. The normal reaction for any mother would have been to go hysterical and clutch the body of her son. But, what is the reaction of a mother in the present case, as stated by PW-1 and PW-2 in their

evidence, who came near the scene of occurrence on hearing the cries of Anita and Sumitra, that the accused tried to flee away from the scene of the crime before being restrained. This kind of reaction and lack of remorse would not have been forthcoming had she been innocent. This unusual reaction to the death of her son who was aged 4 at the time of his death, in no uncertain terms point towards her involvement in the crime. In our view, this is an unusual case and therefore the plea that a mother is not capable of killing her own son, in the absence of any evidence to the contrary cannot be accepted. Apart from this, at the time of questioning under Section 313 Cr.P.C., the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating her and connecting her with the crime by her total denial of everything when those circumstances were brought to her notice by the Sessions Court, she not only lost the opportunity but stood self condemned.

22) There is also no question of falsely implicating the appellant. The witnesses are her close relatives. Heera PW-1 being the brother-in-law of the appellant and Balobai PW-2 being the sister-in-law of the appellant, had no enmity nor animosity against the appellant. With regard to the issue of Sumitra PW-4, being declared a hostile witness by the prosecution and the contradictions in her testimony, it needs to be kept in mind that the witness is a 16 year old girl, with an impressionable mind. It is very likely that she was shocked beyond belief at the site of the dead body and it is not possible to comprehend how she would have reacted. Different people react differently to crisis situations, so it is very much possible that with the passage of time between the occurrence of the crime and recording of her testimony, her memory of the incident would have blurred. That by itself is not enough to set aside the conclusion reached at by the courts below.

23) For all the reasons stated supra, we have no hesitation to agree with the findings of the Division Bench of the High Court holding the appellant guilty of the offence under Section 302 I.P.C. Accordingly, the appeal fails and it is dismissed.

.................................J.

[ P. SATHASIVAM ]

.................................J.

[ H.L. DATTU ]

New Delhi,

January 29, 2010.