Asraf Sk & ANR. Vs.
State of West Bengal  INSC 1776 (20 October 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 720 OF 2004 Asraf
SK and Anr. ...Appellants Versus State of West Bengal ...Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Calcutta High
Court upholding the conviction recorded by learned Additional Sessions Judge,
12th Court, 24 Parganas (South) in Sessions Trial No.1(6) of 1988. Both the
appellants were convicted for offence punishable under Section 302 read with
Section 34 of the Indian Penal Code, 1860 (in short the `IPC') and sentenced to
imprisonment of life.
prosecution case, in brief, is that Jayanta Kr. Mukherjee (PW-12) was posted as
Officer-in-Charge of Bishnupur Police Station at the relevant point of time. On
18.08.83 at about 0.02 hours when this witness came to Jhanpur Keyatala Hat, he
received written complaints of Anita Pal (PW-1) alleging, inter-alia, that her
niece Kumari Archana Pal, aged about 16 years was kidnapped by the appellants.
Kumari Archana Pal was the daughter of her sister Pasani Pal (PW-2). Her niece
could not be traced out since she was kidnapped by appellant no.1 Asraf Sk. and
further that as appellant no.1 Asraf Sk. was absconding and on the date of
occurrence the said appellant was seen loitering openly around their house. Her
elder sister Pasani Pal upon seeing the appellant no.1 became emotional and
started crying. On 17.08.1983 early in the evening, when PW-2 was so crying
loudly, appellant no.1 Asraf Sk. alongwith appellant no.2 Rashid Molla Suddenly
entered their house and assaulted P.W. 2 for crying loudly. Seeing this,
Shibcharan Pal (hereinafter referred to as the `deceased') being the father of
P.Ws. 1 and 2 came out from his hut and protested against the acts of the
appellants in assaulting P.W.2. At this the appellants threatened that they
would murder every member of the family of the deceased. Apprehending danger,
P.W. 1 alongwith the deceased went to the house of one Suphal Pal, being a
local leader, to complain about the aforesaid incident. But said Suphal Pal was
not available at his residence then. Thereafter they reported the incident to
one Shah Alam Molla, being a member of the local Panchayat. Shah Alam Molla
assured P.W. 1 and her father that necessary steps would be taken on the next
day. Thereafter they returned home at about 8 p.m. After returning back home,
the deceased went out to the field to ease himself.
witnesses saw the two appellants following the deceased quickly. They became
suspicious about the movement of the two appellants.
The deceased having
not returned home despite passage of 5/7 minutes since he left for the field,
P.W. 1 alongwith P.W.2 Pasani Pal became suspicious and they went out in search
of their father.
As soon as they
reached near the local hat (market) they noticed the two appellants were
running away quickly "by their side". Soon after they noticed their
father Shibcharan Pal, aged about 65/70 years was lying dead on the steps of
the tank on the southern side situated near the hat (market).
The legs of the
deceased were lying submerged in the water of the tank while upper part of the
body was lying above water on the bank. They further alleged in the said
complaint that their father was murdered by throttling and other methods. They
further expressed their suspicion that at about 8 p.m. appellants Asraf Sk.,
Rashid Molla and others had murdered their father by throttling and by
torturing him and left the dead body on the bank of the tank of Keyatala Market
(hat) and fled away. This Complaint was reduced into writing by the scribe,
Niranjan Pal (PW-9) and handed over to P.W.14 when he came to the place of
occurrence. Said complaint was taken to the police Station and was registered
as an F.I.R. under Section 302/34 I.P.C., against the two appellants at 3.30
a.m. on 18.8.1983. After investigation Police submitted charge sheet against
the two appellants and one Basir Sk. (since acquitted). The case was committed
to the Court of Session, North 24, Parganas. On perusal of the materials on
record learned trial Court framed charges against the two appellants and
another accused, namely, Basir Sk., under Section 302/34 I.P.C., to which the
appellants and other accused pleaded not guilty. In course of the trial, 16
witnesses were examined. As noted above, the present appellants were convicted
while accused Basir Sk. was acquitted.
Before the High Court
the stand was that the case rests on circumstantial evidence and the
circumstances do not warrant conclusion of guilt of the accused. The High Court
did not accept this plea and confirmed the conviction.
support of the appeal, learned counsel for the appellants submitted that the
trial Court and the High Court have erred in holding that the circumstances
were sufficient to hold the appellants guilty.
counsel for the respondent-State on the other hand supported the judgments of
the trial Court and the High Court.
has been consistently laid down by this Court that where a case rests squarely
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. (See Hukam Singh
v. State of Rajasthan AIR (1977 SC 1063);
Eradu and Ors. v.
State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR
1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder
Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of
M.P. (AIR 1989 SC 1890). 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. In Bhagat Ram v. State of Punjab (AIR 1954
SC 621), it was laid down that where the case depends upon the conclusion drawn
from circumstances the cumulative effect of the circumstances must be such as
to negative the innocence of the accused and bring the offences home beyond any
may also make a reference to a decision of this Court in C. Chenga Reddy and
Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"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
Further the proved
circumstances must be consistent only with the hypothesis of the guilt of the
accused and totally inconsistent with his innocence....".
Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down
that when a case rests upon circumstantial evidence, such evidence must satisfy
the following tests:
circumstances from which an inference of guilt is sought to be drawn, must be
cogently and firmly established;
circumstances should be of a definite tendency unerringly pointing towards
guilt of the accused;
6 (3) 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 (4) 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
inconsistent with his innocence.
State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), 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 guilt.
Alfred Wills in his admirable book "Wills' Circumstantial Evidence"
(Chapter VI) lays down the following rules specially to be observed in the case
of circumstantial evidence: (1) the facts alleged as the basis of any legal
inference must be clearly proved and beyond reasonable doubt connected with the
factum probandum; (2) the burden of proof is always on the party who asserts
the existence of any fact, which infers legal accountability; (3) in all cases,
whether of direct or circumstantial evidence the best evidence must be adduced
which the nature of the case admits; (4) in order to justify the inference of
guilt, the inculpatory facts must be incompatible with the innocence of the
accused and incapable of explanation, upon any other reasonable hypothesis than
that of his guilt, (5) if there be any reasonable doubt of the guilt of the
accused, he is entitled as of right to be acquitted".
is no doubt that conviction can be based solely on circumstantial evidence but
it should be tested by the touch-stone of law relating to circumstantial
evidence laid down by the this Court as far back as in 1952.
Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC
343), wherein it was observed thus:
"It is well to
remember that in cases where the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn should be in
the first instance be fully established and all the facts so established should
be consistent only with the hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete 8 as not to leave any
reasonable ground for a 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."
reference may be made to a later decision in Sharad Birdhichand Sarda v. State
of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial
evidence, it has been held that onus was on the prosecution to prove that the
chain is complete and the infirmity of lacuna in prosecution cannot be cured by
false defence or plea. The conditions precedent in the words of this Court,
before conviction could be based on circumstantial evidence, must be fully
established. They are:
(1) the circumstances
from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned `must' or `should' and not `may be' established;
(2) the facts so
established should be consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be explainable on any other hypothesis
except that the accused is guilty;
(3) the circumstances
should be of a conclusive nature and tendency;
(4) they should
exclude every possible hypothesis except the one to be proved; and (5) there
must be a chain of evidence so complete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused and must 9
show that in all human probability the act must have been done by the accused.
aspects were highlighted in State of Rajasthan v. Rajaram (2003 (8) SCC 180),
State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261) and Criminal
Appeal No.180/2001 (Chatter Singh and Ors. v. State of Haryana) disposed of on
26th August, 2008.
circumstances which were highlighted by the prosecution to substantiate the
accusations read as follows:
No.1 Asraf Sk. kidnapped the grand- daughter of the deceased and married her.
(II) In the early
evening on the date of occurrence the mother of the kidnapped girl, being the
daughter of the deceased was crying loudly as her daughter was kidnapped by
appellant No.1 Asraf Sk. Hearing the cries of PW-1 Smt.
appellants had the audacity to trespass into the house of the deceased and slap
PW-2 Smt. Pasani Pal. They even threatened them that all the members of his
family would be annihilated.
(III) An hour or so
after the aforesaid incident, deceased went out to the field to ease himself.
At that time, though may be intervened by few minutes, the appellants and another
were found following the deceased."
trial Court and the High Court held that the evidence of PWs 1 and 2 can be
acted upon and, therefore, the circumstances were established.
The circumstances in
our considered opinion do not present a complete chain of circumstances. The
evidence of PWs 1 and 2 on which strong reliance has been placed by the trial
Court and the High Court are full of contradictions. PW-1 stated that she had
seen the actual assault. This was her statement in court which is contrary to
her statement recorded during investigation. In the First Information Report
there was also no reference that PWs 1 and 2 had seen the actual occurrence.
Similarly PW-1's statement in court is as follows:
"As my father
did not return within 5/6 minutes, myself and my sister Pasani had been to the
garden. Then the accused Asraf and Rashid Molla then started fleeing away after
pushing the father on the ground. We then went to our father and found the legs
in the water and upper part of the body on the bank of the pond. We noticed
mark of strangulation of his throat and marks of ecchymosis in his hand. We
picked up our father from that place. He was then dead."
version is entirely different. Her statement in court was to the following
"As my father
did not return within 5/7 minutes myself and my sister Anita then went out of
our house in search of my father and to know what happened to him. We had been
to tank side 11 of Kaytala Hat, then accused Rashid & Asraf were found fleeing
very fast by our side. We then went towards the southern Ghat of the said
Keyatal tank and found my father lying on the bank side facing downward.
I did not tell I.O.
that while I came near the hat pukar tank the accused persons were fleeing away
by our side."
being the position, this is certainly not a case where the prosecution has
established the accusations. The accused persons are entitled to acquittal,
which we direct. They shall be released from custody forthwith unless required
to be in custody in any other case.
(Dr. ARIJIT PASAYAT)