State of U.P. Vs. Ram
Balak & ANR. [2008] INSC 1702 (3 October 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.132 OF 2002 State
of U.P. ...Appellant Versus Ram Balak and Anr. ...Respondents
Dr. ARIJIT PASAYAT,
J.
1.
The
State of U.P. is in appeal questioning the correctness of judgment of a
Division Bench of the Allahabad High Court which directed acquittal of the
respondents. The learned 5th Additional Sessions Judge found the respondents
guilty of offence punishable under Sections 376, 302 and 201 of the Indian
Penal Code, 1860 (in short the `IPC'). Each was sentenced to death sentence for
the offence relatable to Section 302 IPC, life imprisonment for the offence
relatable to Section 376 IPC and 7 years for the offence relatable to Section
201 IPC. The appellants preferred appeal before the High Court and a reference
was made by the Trial Court under Section 366 of the Code of Criminal
Procedure, 1973 (in short the `Code') for confirmation of the death sentence.
The High Court by the impugned judgment found that the accusations have not
been established by the prosecution and therefore directed acquittal. Capital
reference was rejected.
2.
The
prosecution version as unfolded during trial is as follows:
According to
prosecution, murder and rape was committed by the respondents on 17-11-1992 at
about 7.00 A.M. in the morning when Kumari Suneeta, the deceased victim aged
about 14 years had gone to ease herself in the nearby open field in village Jamal
Nagar Police Station Safipur District Unnao. When on 17-11-1992 at about 7.00
A.M.
Kumari Suneeta had
gone to attend the call of nature in the nearby open field, both the accused
followed her and after catching hold of her committed rape upon her and thereafter
killed her by strangulation. They thereafter concealed the dead body of Kumari
Suneeta by throwing it in the nearby Patawar. When she did not return back to
her home, the family members of Kumari Suneeta started searching for her and
ultimately at about 2.00 p.m. the dead body of the Kumari Suneeta was found in
the Patawar. After recovery of the dead body of Kumari Suneeta, Radhey Lal
(PW.1), brother of the deceased lodged a report about the incident at Police
Station Safipur District Unnao at 3.45 P.M. on the same day. The distance of
Police Station is 6 miles from the place of the incident. Sheo Harsh Tewari
(C.W.2), Sub Inspector was present at the Police Station at the time when the
report was lodged, therefore, he immediately proceeded to the place of the
incident and reached there in the evening. He prepared inquest report at about
4.30 P.M. and other relevant papers Ext. Ka. 6 to Ka. 10 and sent the dead body
to Mortuary for post-mortem examination. The Investigating Officer thereafter
prepared Site-plan Ext. Ka.14 and recovered bali, Lutia, Chappal, Chaddhi etc.
from the place of the incident. The investigating Officer also recovered Salwar
and Frock which were found to be wrapped on the neck of the deceased.
It is further said
that thereafter the Investigating Officer called the Dog Squad and on the
request of the Investigating Officer, Dog Squad reached there on 18-l1-1992 at
about 12.45 p.m. It is said that the dogs after smelling the foot-print of the
accused from the place of the incident reached the house of Shiv Balak. On
2.12.1992, the Investigating Officer arrested Ram Balak and recovered one lutia
of Shiv Balak from the place of the incident on the pointing out of accused Ram
Balak. Shiv Balak subsequently surrendered in Court. The autopsy on the dead
body of the deceased was conducted on 18-11-1992 by Dr. Satya Prakash, Medical
Officer District Hospital, Unnao. Ram Balak accused after the incident visited
the house of Iqbal Ahmad (CW- 1) and confessed his guilt. After completing the investigation
the Investigating Officer submitted charge-sheet against the accused persons.
Since the accused
persons pleaded innocence trial was held.
Seven witnesses were
examined by the prosecution to prove the version which rested on circumstantial
evidence.
3 The learned Trial
Judge after scrutinizing the evidence on record came to the conclusion that the
prosecution has successfully proved the guilt of the accused beyond reasonable
doubt and therefore he convicted and sentenced the respondents as mentioned
above.
The respondents
feeling aggrieved from the judgment and order passed by the trial Court, filed
the Criminal Appeal before the High Court challenging their conviction and
sentence as aforesaid.
The stand before the
High Court was that there is no evidence at all against the present respondents
and the learned Court below committed an error in holding that the prosecution
by means of circumstantial evidence has proved the guilt of the respondents
beyond doubt.
In the instant case
there is no eye witness account. The conviction of the respondents is based
only on circumstantial evidence. The learned Trial Judge while convicting the
respondents relied upon five circumstances, namely, (i) the motive behind the
crime was teasing of the deceased by the accused persons and thereafter they
were scolded by the deceased, (ii) the accused persons were seen on the date
and time of the incident near the place of the incident which led to their
involvement, (iii) the police Dog Squad proved the guilt of the accused
persons, (iv) the witnesses had no reason to implicate the accused persons
falsely and (v) there is no missing link in the prosecution story.
The High Court held
that the circumstances do not make a complete chain of circumstances. There was
no evidence to show that the accused were last seen in the company of the
deceased. Merely because they were seen near the place of incidence, that
cannot be a ground to show their involvement. The High Court noted that though
there was some reference to the alleged extra judicial confession before CW-1
by the accused Ram Bali, the said confessional statement was not confronted to
the accused while the statement of accused Ram Balak was recorded under Section
313 of the Code of the Criminal Procedure, 1973 (in short `the Code'). The High
Court also found that the evidence of this witness was not believable.
Accordingly, the High Court directed acquittal.
3.
In
support of the appeal, learned counsel for the appellant submitted that there
is a complete chain of circumstances and therefore the High Court ought to have
upheld the conviction as recorded by the trial Court.
4.
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.
5.
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....".
6.
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.
7.
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.
8.
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".
9.
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.
10.
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."
11.
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 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 8 (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.
12.
These
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).
13.
So
far as the last seen aspect is concerned it is necessary to take note of two
decisions of this court. In State of U.P. v. Satish [2005 (3) SCC 114] it was
noted as follows:
"22. The last
seen theory comes into play where the time-gap between the point of time when
the accused and the deceased were seen last alive and when the deceased is
found dead is so small that possibility of any person other than the accused
being the author of the crime becomes impossible. It would be difficult in some
cases to positively establish that the deceased was last seen with the accused
when there is a long gap and possibility of other persons coming in between
exists.
In the absence of any
other positive evidence to conclude that the accused and the deceased were last
seen together, it would be hazardous to come to a conclusion of guilt in those
cases. In this case there is positive evidence that the deceased and the
accused were seen together by witnesses PWs. 3 and 5, in addition to the
evidence of PW-2."
14.
In
Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006 (10) SCC 172] it was noted
as follows:
"27. The
last-seen theory, furthermore, comes into play where the time gap between the
point of time when the accused and the deceased were last seen alive and the
deceased is found dead is so small that possibility of any person other than
the accused being the author of the crime becomes impossible. Even in such a
case the courts should look for some corroboration".
9 (See also Bodhraj
v. State of J&K (2002(8) SCC 45).) "
15.
A
similar view was also taken in Jaswant Gir v. State of Punjab [2005(12) SCC 438].
Factual position in the present case is almost similar, so far as time gap is
concerned.
16.
Out
of the circumstances highlighted above really none is of any significance.
Learned counsel for the appellant-State highlighted that the extra judicial
confession itself was sufficient to record the conviction. On a reading of the
evidence of CW-1 it is noticed that accused Ram Balak did not a say a word
about his own involvement. On the contrary he said that he did not do anything
and made some statements about the alleged act of co-accused. Additionally, in
his examination under Section 313 of Code, no question was put to him regarding
his so called extra judicial confession. To add to the vulnerability, his
statement is to the effect that after about 11 days of the incidence the extra
judicial confession was made. Strangely he stated that he told the police after
three days of the incidence about the extra judicial confession. It is
inconceivable that a person would tell the police after three days of the incidence
about the purported extra judicial confession which according to the witness
himself was made after eleven days.
17.
Learned
counsel for the State submitted that there may be some confusion. But it is
seen that not at one place, but at different places this has been repeated by
the witness.
18.
Learned
counsel for the appellant also refers to a judgment of this Court in Abdul
Razak Murtaza Dafadar v. State of Maharashtra (AIR 1970 SC 283) more
particularly para 11 that the Dog Squad had proved the guilt of the accused
persons. In this context it is relevant to take note of what has been stated in
para 11 which reads as follows:
"11. It was
lastly urged on behalf of the appellant that the lower courts ought not to have
relied upon the evidence of dog tracking and such evidence was not admissible
in order to prove the guilt of the appellant. The evidence of tracker dogs has
been much discussed. In Canada and in Scotland it has been admitted. But in the
United States there are conflicting decisions:
There have been
considerable uncertainty in the minds of the Courts as to the reliability of
dogs in identifying criminals and much conflict of opinion on the question of
the admissibility of their actions in evidence. A survey of the cases however,
reveals that most Courts in which the question of the admissibility of evidence
of- trailing by blood-hounds has been presented take the position that upon a
proper foundation being laid by proof that the dogs were qualified to trail
human beings, and that the circumstances surrounding the trailer were such as
to make it probable that the person trailed was the guilty party, such evidence
is admissible and may be permitted to go to the jury for what it is worth as
one of the circumstances which may tend to con- nect the defendant with the
Crime. Pare 378, Am. Juris. 2nd edn. Vol. 29, p. 429.
There are three
objections which are usually advanced against the reception of such evidence.
First, since it is manifest that the dog cannot go into the box and give his
evidence on oath, and consequently submit himself to cross- examination, the
dog's human companion must go into the box and report the dog's evidence, and
this is clearly hearsay.
Secondly, there is a
feeling that in criminal cases the life and liberty of a human being should not
be dependent on canine inferences. And, thirdly, it is suggested that even if
such evidence is strictly admissible under the rules of evidence it should be
excluded because it is likely to have a dramatic impact on the jury out of
proportion to its value. In R. v. Montgomery, 1866 NI 160 a police constable
observed men stealing wire by the side of a railway line.
They ran away when he
approached them. Shortly afterwards 11 the police got them on a nearby road.
About an hour and half later the police tracker dog was taken to the base of
the telegraph pole and when he had made a few preliminary sniffs he set off and
tracked continuously until he stopped in evident perplexity at the spot where
the accused had been put into the police car. At the trial it appeared that
other evidence against the accused that they had been stealing the wire was
inconclusive and that the evidence of the behaviour of the tracker dog was
crucial to sustain the conviction. In these circumstances the Court of Criminal
Appeal ruled that the evidence of the constable who handled the dog on its
tracking and reported the dog's reactions was properly admitted. The Court did
not regard its evidence as a species of hearsay but instead the dog was
described as "a tracking instrument'' and the handler was regarded as
reporting the movements of the instrument, in the same way that a constable in
traffic case might have reported on the beha- viour of his speedometer. It was
argued in that case that the tracker dog's evidence could be likened to the
type of evidence accepted from scientific experts describing chemical
reactions, blood tests and the actions of bacilli.
The comparison does
not, however, appear to be sound because the behaviour of chemicals, blood
corpuscles and bacilli contains no element of conscious volition or deliberate
choice. But Dogs are intelligent animals with many thought processes similar to
the thought processes of human beings and wherever you have thought processes
there is always the risk of error, deception and even self-deception. For these
reasons we are of the opinion that in the present state of scientific knowledge
evidence of dog tracking, even if admissible, is not ordinarily of much
weight."
19.
It
is submitted by learned counsel for the appellant that in the said case this
Court had upheld the conviction. Though in the said case the conviction was
upheld, but that was done after excluding the evidence of Dog Squad. This Court
found that the rest of the prosecution evidence proved the charges for which
the appellants therein had been convicted.
20.
Above
being the position, there is no merit in this appeal which is accordingly
dismissed.
.................................J.
(Dr. ARIJIT PASAYAT)
.................................J
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