State
of Rajasthan Vs. Raja Ram [2003] Insc 374 (13 August 2003)
Doraiswamy
Raju & Arijit Pasayat. Arijit Pasayat, J.
The
State of Rajasthan is in appeal questioning legality of judgment of the High
Court of Rajasthan at Jodhpur Bench, holding that the respondent was innocent
and was entitled to acquittal from the charges levelled against him for alleged
commission of offence punishable under Section 302, Indian Penal Code, 1860
(for short IPC).
The
accused was held to be guilty by the learned Additional Session Judge, Hanumangarh
who awarded a death sentence on finding the accused guilty.
Accusations
which laid foundation of the prosecution case reveal that information was given
by Sahi Ram (PW-6) on 20.12.1989 at about 7.15 a.m. at the Sangaria Police Station to the effect that his younger brother
was responsible for homicidal death of 5 persons, that is, his father, younger
brother, the younger brother's wife and their two children. The killings were
on account of gunshots and murders were committed on 19.12.1989. On the basis
of information lodged investigations were undertaken and on completion thereof
charge sheet was filed stating that offences punishable under Section 302 IPC
and Section 27 of Indian Arms Act, 1959 (for short 'Arms Act') were committed,
the appellant was described as the assailant. In order to further its version,
7 witnesses were examined. The prosecution version rests on circumstantial
evidence. The accused examined himself as DW-1 and placed on record materials
to attack the credibility of evidence tendered by PW-3 & 4; more
particularly it was stated that they were not favourably disposed towards him,
and had falsely implicated him. Accepting the version of Vinod Kumar (PW-3) and
Nand Ram (PW-4) before whom allegedly the accused made extra judicial
confession, the Trial Court found the accused guilty of offence punishable
under Section 302 IPC as noted above and awarded death sentence in addition to
the fine of Rs.5000. However, it was found that the accusations relating to
Section 27 of the Arms Act were not established. As death sentence has been
awarded, a reference was made to the High Court under Section 366 of the Code
of Criminal Procedure, 1973 (in short the 'Code') for confirmation. An accused
also filed an appeal. In appeal as noted at the threshold, the High Court found
the evidence to be inadequate to fasten the guilt on the accused and,
therefore, prosecution version to be vulnerable. The evidence of PW-3 and PW-4
which formed foundation of the Trial Court's judgment did not find acceptance
by the High Court finding the evidence to be unreliable and incogent.
The
learned counsel for the appellant-State in support of the appeal submitted the
approach of the High Court is erroneous. There was no infirmity in the evidence
of PW-3 and PW-4 to warrant rejection of their evidence. They were related to
both the accused and the deceased and there is no reason as to why they would
falsely implicate the accused. Conduct of the accused, which was found to be
suspect by the Trial Court, has been overlooked by the High Court while
directing acquittal. The wearing apparels of the accused contained bloodstains
and since the accused did not explain as to how the blood stains appeared on
such apparels, that itself is a suspicious circumstance, which the High Court
overlooked.
The
circumstances highlighted to fasten the guilt on the accused are as follows:-
(1)
Extra judicial confession of the offence made by the accused before the
witnesses.
(2)
Immediately after the incident the accused was seen coming from the side of the
dhani of the deceased Maniram.
(3)
The conduct of the accused immediately after the incident.
(4)
Human blood being found on the clothes of the accused
(5)
Recovery of pistol being got made by the accused.
It is
noted that circumstances 1, 2 and 3 related to the evidence of PWs-3 & 4.
The pistol which was allegedly recovered on being pointed out by the accused
was found to be not one from which bullets found on the dead bodies were fired.
Learned
counsel for the respondent-accused submitted that the case rests on
circumstantial evidence and the chain of circumstances highlighted by the
prosecution did not lead to the inevitable conclusion that ruled out others and
established that accused alone was responsible for the crime. It was further
submitted that considering the fact that the appeal is against an order of
acquittal, scope for interference is very limited. The evidence of PW-3 & 4
has been rightly discarded and there is no reason as to why the well-reasoned judgment
of the High Court should be interfered with.
There
is no embargo on the appellate Court reviewing the evidence upon which an order
of acquittal is based. Generally, the order of acquittal shall not be
interfered with because the presumption of innocence of the accused is further
strengthened by acquittal. The golden thread which runs through the web of
administration of justice in criminal cases is that if two views are possible
on the evidence adduced in the case, one pointing to the guilt of the accused
and the other to his innocence, the view which is favourable to the accused
should be adopted. The paramount consideration of the Court is to ensure that
miscarriage of justice is prevented. A miscarriage of justice which may arise
from acquittal of the guilty is no less than from the conviction of an
innocent. In a case where admissible evidence is ignored, a duty is cast upon
the appellate Court to re-appreciate the evidence in a case where the accused
has been acquitted, for the purpose of ascertaining as to whether any of the
accused committed any offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh (JT 2002 (3) SC 387)]. The
principle to be followed by appellate Court considering the appeal against the
judgment of acquittal is to interfere only when there are compelling and
substantial reasons for doing so. If the impugned judgment is clearly
unreasonable, it is a compelling reason for interference. These aspects were
highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra (1973 (3) SCC 193), Ramesh Babulal Doshi
v. State of Gujarat (1996 (9) SCC 225) and Jaswant
Singh v. State of Haryana (JT 2000 (4) SC 114).
Before
analyzing factual aspects it may be stated that for a crime to be proved it is
not necessary that the crime must be seen to have been committed and must, in
all circumstances be proved by direct ocular evidence by examining before the
Court those persons who had seen its commission. The offence can be proved by
circumstantial evidence also. The principal fact or factum probandum may be
proved indirectly by means of certain inferences drawn from factum probans,
that is, the evidentiary facts. To put it differently circumstantial evidence
is not direct to the point in issue but consists of evidence of various other
facts which are so closely associated with the fact in issue that taken
together they form a chain of circumstances from which the existence of the
principal fact can be legally inferred or presumed.
It 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 reasonable
doubt.
We 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 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....".
In 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:
"(1)
the circumstances from which an inference of guilt is sought to be drawn, must
be cogently and firmly established;
(2) those
circumstances should be of a definite tendency unerringly pointing towards
guilt of the accused;
(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.
In
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.
Sir
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".
There
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.
In 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 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." A 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 the 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 compete 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.
The
case at hand has to be gauzed in the background of aforesaid principles. The
evidence of PW-3 & 4 as noted above form the foundation of the prosecution
case. It was noted by the High Court that PW-4 was not in good terms with the
accused and, in fact, a case had been lodged by the accused against PW-4 a few
months before the incident.
Confessions
may be divided into two classes, i.e. judicial and extra-judicial. Judicial confessions
are those which are made before Magistrate or Court in the course of judicial
proceedings. Extra- judicial confessions are those which are made by the party
elsewhere than before a Magistrate or Court. Extra judicial confessions are
generally those made by a party to or before a private individual which
includes even a judicial officer in his private capacity. It also includes a
Magistrate who is not especially empowered to record confessions under Section
164 of the Code or a Magistrate so empowered but receiving the confession at a
stage when Section 164 does not apply. As to extra-judicial confessions, two
questions arise:
(i) were
they made voluntarily? And
(ii) are
they true?
As the
section enacts, a confession made by an accused person is irrelevant in a
criminal proceedings, if the making of the confession appears to the Court to
have been caused by any inducement, threat or promise,
(1) having
reference to the charge against the accused person,
(2) proceeding
from a person in authority, and
(3)
sufficient, in the opinion of the Court to give the accused person grounds
which would appear to him reasonable for supposing that by making it he would
gain any advantage or avoid any evil of a temporal nature in reference to the
proceedings against him. It follows that a confession would be voluntary if it
is made by the accused in a fit state of mind, and if it is not caused by any
inducement, threat or promise which has reference to the charge against him,
proceeding from a person in authority. It would not be involuntary, if the
inducement,
(a) does
not have reference to the charge against the accused person, or
(b) it
does not proceed from a person in authority; or
(c) it
is not sufficient, in the opinion of the Court to give the accused person
grounds which would appear to him reasonable for supposing that, by making it,
he would gain any advantage or avoid any evil of a temporal nature in reference
to the proceedings against him.
Whether
or not the confession was voluntary would depend upon the facts and
circumstances of each case, judged in the light of Section 24. The law is clear
that a confession cannot be used against an accused person unless the Court is
satisfied that it was voluntary and at that stage the question whether it is true
or false does not arise. If the facts and circumstances surrounding the making
of a confession appear to cast a doubt on the veracity or voluntariness of the
confession, the Court may refuse to act upon the confession, even if it is
admissible in evidence One important question, in regard to which the Court has
to be satisfied with is, whether when the accused made confession, he was a
free man or his movements were controlled by the police either by themselves or
through some other agency employed by them for the purpose of securing such a
confession. The question whether a confession is voluntary or not is always a
question of fact. All the factors and all the circumstances of the case,
including the important factors of the time given for reflection, scope of the
accused getting a feeling of threat, inducement or promise, must be considered
before deciding whether the Court is satisfied that its opinion the impression
caused by the inducement, threat or promise, if any, has been fully removed. A
free and voluntary confession is deserving of highest credit, because it is
presumed to flow from the highest sense of guilt. [See R. v. Warwickshall:
(1783) Lesch 263)]. It is not to be conceived that a man would be induced to
make a free and voluntary confession of guilt, so contrary to the feelings and
principles of human nature, if the facts confessed were not true. Deliberate
and voluntary confessions of guilt, if clearly proved, are among the most
effectual proofs in law. An involuntary confession is one which is not the
result of the free will of the maker of it. So where the statement is made as a
result of the harassment and continuous interrogation for several hours after
the person is treated as an offender and accused, such statement must be
regarded as involuntary. The inducement may take the form of a promise or of
threat, and often the inducement involves both promise and threat, a promise of
forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe
Evidence, 9th Edn. Page 284). A promise is always attached to the confession,
alternative while a threat is always attached to the silence-alternative; thus,
in the one case the prisoner is measuring the net advantage of the promise,
minus the general undesirability of a false confession, as against the present
unsatisfactory situation; while in the other case he is measuring the net
advantages of the present satisfactory situation, minus the general
undesirability of the confession against the threatened harm. It must be borne in
mind that every inducement, threat or promise does not vitiate a confession.
Since the object of the rule is to exclude only those confessions which are testimonially
untrustworthy, the inducement, threat or promise must be such as is calculated
to lead to an untrue confession. On the aforesaid analysis the Court is to
determine the absence or presence of inducement, promise etc. or its
sufficiency and how or in what measure it worked on the mind of the accused. If
the inducement, promise or threat is sufficient in the opinion of the Court, to
give the accused person grounds which would appear to him reasonable for
supposing that by making it he would gain any advantage or avoid any evil, it
is enough to exclude the confession. The words 'appear to him' in the last part
of the section refer to the mentality of the accused.
An
extra-judicial confession, if voluntary and true and made in a fit state of
mind, can be relied upon by the Court. The confession will have to be proved
like any other fact. The value of the evidence as to confession, like any other
evidence, depends upon the veracity of the witness to whom it has been made.
The value of the evidence as to the confession depends on the reliability of
the witness who gives the evidence. It is not open to any Court to start with a
presumption that extra-judicial confession is a weak type of evidence. It would
depend on the nature of the circumstances, the time when the confession was
made and the credibility of the witnesses who speak to such a confession. Such
a confession can be relied upon and conviction can be founded thereon if the
evidence about the confession comes from the mouth of witnesses who appear to
be unbiased, not even remotely inimical to the accused, and in respect of whom
nothing is brought out which may tend to indicate that he may have a motive for
attributing an untruthful statement to the accused, the words spoken to by the
witness are clear, unambiguous and unmistakably convey that the accused is the
perpetrator of the crime and nothing is omitted by the witness which may
militate against it. 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 if it passes the test of
credibility.
If the
evidence relating to extra judicial confession is found credible after being
tested on the touchstone of credibility and acceptability, it can solely form
the basis of conviction. The requirement of corroboration as rightly submitted
by learned counsel for the respondent-accused, is a matter of prudence and not
a invariable rule of law. It is improbable, as rightly held by the High Court
that the accused would repose confidence on a person who is enemically disposed
towards him, and confess his guilt. Similarly, PW- 3 is a close relative of
PW-4 and as records reveal, a person of doubtful antecedents being a history sheeter.
Though that alone cannot be the ground to discard his evidence, the totality of
circumstances cast an indelible shadow of doubt on his evidence. It is to be
noted that accused examined himself as DW-1. Though it was the prosecution
version that there was also extra judicial confession before informant Sahi Ram
(PW-6) that was disbelieved by both the Trial Court and the High Court in view
of the fact that he stated differently from what was allegedly stated by him
during investigation. He disowned that the accused made any confessional
statement before him. Though the prosecution during cross-examination of the
accused (DW-1) suggested that he had made extra judicial confession before
PW-6, significantly not even such a suggestion was given in respect of PW-3
& 4.
Coming
to the bloodstains on the cloth which were allegedly seized on being pointed
out by the accused, the forensic laboratory report indicated that there were
blots of human blood on the shirts and trousers of the accused. There was no
effort to find out the blood group. In fact, the High Court noted this position
and observed that presence of PW-4 at the time of recovery is doubtful as he
has been found to be an unreliable witness. It was observed that even if it is
accepted that there was existence of blood, this circumstance is not such from
which it can be found that the accused was perpetrator of the crime. In the
aforesaid report (Ex.61) it was clearly stated that the blood group of blood
found on the clothes could not be determined.
Neither
the blood group of the deceased nor that of the accused was determined. In that
background, the High Court held that the possibility of the blood being that of
the accused cannot be ruled out.
In
view of the findings recorded by the High Court about the non- acceptability by
evidence relating to alleged extra judicial confession, the conclusions of the
High Court cannot be said to be one which are unsupportable. We decline to
interfere in the appeals, and the same are dismissed.
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