Penal Code, 1860: s.302 – Prosecution case was that on fateful day, appellant-accused murdered his wife and four children with a sharp cutting weapon while they were sleeping – Motive behind the murder was attributed to extra marital affair of appellant with one married lady which was highly opposed by the deceasedwife – Discovery statement made by appellant and consequently recovery made – Appellant said to have made extra judicial confession to prosecution witness – Trial court convicted the appellant and passed death sentence – High Court confirmed the death sentence – Hence instant appeal – Held: Present case is based on circumstantial evidence – Mere discovery is insufficient to infer the authorship of concealment by the person who discovered the weapon – The exact words of the accused person while making discovery statement was not deposed by prosecution witness – Further, the contents of panchnama were not proved – Credibility of police witness (PW-6 and PW-7) was doubtful and evidence of discovery was held to be unreliable – Credibility of extra judicial confession was also doubted in view of oral evidence of prosecution witness – As circumstance relating to extra judicial confession and discovery of weapon of offence were not established, the chain of circumstantial evidence was not established fully and thus other circumstance such as motive or the evidence of false explanation offered by the appellant as an additional link in chain of evidence were not considered – Further, the explanation offered by the accused for injuries on his body could be said to be compatible with the defense story – Prosecution failed to establish the case beyond reasonable doubt and therefore the conviction is set aside. Evidence Act, 1872: s.8 – Relevance of Motive – Circumstantial Evidence – There cannot be straight jacket formula for appreciation of circumstantial evidence – Circumstances suggesting guilt must be cogently and firmly established – The same must be of definite tendency and conclusive in nature – The circumstances should form the chain which conclusively points towards the guilt of accused in all human probability – Circumstantial evidence must be complete and should be devoid of any hypothesis giving room for accused’s innocence but must support only one hypothesis i.e. his guilt – Motive, though not as such an element of crime, but it assumes greater importance in cases resting on circumstantial evidence – Absence of motive could be a missing link of incriminating circumstances, but once the prosecution has established the other incriminating circumstances to its entirety, absence of motive will not give any benefit to the accused – Motive could be an important circumstance but it per se does not take place as conclusive proof that the person concerned was the author of the crime.
Evidence Act, 1872: s.27 – Discovery Statement – Information received from the accused must result into discovery of fact for s.
27 to apply – While making such deposition, the accused must be in police custody – Only so much of information as relates distinctly to the fact thereby discovered is admissible – Further mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon – There might be the possibility that the person may have seen somebody concealing the weapon, therefore it cannot be presumed or inferred that because a person discovered weapon, he was the person who concealed it, least it can be presumed that he used it.
Evidence Act, 1872: Confession – Classification and Scope – Confession can be classified as Judicial and extra-judicial – Former relates to those which are made before the Magistrate or Court – Extra Judicial are made before a private individual and which may include judicial officer in private capacity and Magistrate not especially empowered u/s 164 CrPC or the one so empowered but receiving confession at stage where s.164 does not apply.
Evidence Act, 1872: Extra Judicial Confession – Weightage – It is a weak type of evidence since it can be easily procured whenever direct evidence is not available – It is not open to the Court to start with a presumption that extra-judicial confession is weak type of evidence – It can be accepted and can be the basis of a conviction if it passes the test of credibility – Credibility can be tested by keeping in mind that it comes from an unbiased witness who is not inimical to accused and who do not have motive for attributing an untruthful statement to the accused etc.
Evidence Act, 1872: Confession – Basis of Conviction – Explained – It is well settled that conviction can be based on a voluntarily confession but the rule of prudence requires that wherever possible it should be corroborated by the independent evidence – Further Extra-Judicial confession of accused need not in all cases be corroborated – Also the confession procured under promise or threat or harassment is involuntary in nature and cannot be use in evidence – Involuntary confession is not which is not the result of free will of the maker.
Evidence Act, 1872: Code of Criminal Procedure, 1973 – s.313 – False Explanation tendered by the accused – Whether forms additional link in circumstantial evidence – Explained – The prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence – It is not the law where there is any infirmity or lacunae in the prosecution case, the same could be cured or supplied by a false defence or a false plea which is not accepted by a Court – Only when all the circumstantial evidence are well established which points towards the guilt then only false explanation or false defence tendered by accused can be used as additional link and not otherwise.
Evidence Act, 1872: Burden of Proof – Extent and Meaning – In criminal trial the burden on the accused is to show the “preponderance of probabilty” – The accused is not under burden to prove his case beyond reasonable doubt unlike prosecution – The meaning which the term “preponderance of probabilty” carries is something which connotes to “more probable and rational view of the case”, not necessarily as certain as the pleading should be – The high standard of proof as required for prosecution is only to avoid wrongful conviction as the wrongful conviction leads to greater injustice than wrongful acquittal.
Constitution of India: Art.39A – Code of Criminal Procedure, 1973 – s.304 – Legal Services Authorities Act, 1987 – s.9 – Legal aid to accused – Duty of State – Explained – What is meant by the duty of the State to ensure a fair defence to an accused is not the employment of a defence counsel for namesake – It has to be the provision of a counsel who defends the accused diligently to the best of his abilities – The presence of counsel on record means effective, genuine and faithful presence and not a mere farcical, sham or a virtual presence that is illusory, if not fraudulent – Indigence should never be a ground for denying fair trial or equal justice therefore, particular attention should be paid to appoint competent advocates, equal to handling the complex cases, not patronising gestures to raw entrants to the Bar.
Allowing the appeals, the court
HELD: 1.1 Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows: Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature; The circumstances, if 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 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 but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved. [Para 46][189-G-H; 190-A-D]
Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88 – relied on.
1.2 The case is one of the circumstantial evidence as there was no eye witness of the occurrence. It is settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt the complete chain of events and circumstances which definitely points towards the involvement and guilty of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eye witness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the expected principles in that regard. [Para 47][190-D-F]
2.1 The conditions necessary for the applicability of Section
27 of the Act are broadly as : (i) Discovery of fact in consequence of an information received from accused; (iv) Discovery of such fact to be deposed to; (iii) The accused must be in police custody when he gave information; and (iv) So much of information as relates distinctly to the fact thereby discovered is admissible. [Para 64][199-F-H]
2.2 What emerges from the evidence in the form of panchnama is that the appellant stated before the panch witnesses to the effect that “I will show you the weapon used in the commission of offence”. This is the exact statement which could be read from the discovery panchnama and the Investigating Officer also could not have deposed as regards the exact statement other than what has been recorded in the panchnama. This statement does not suggest that the appellant indicated anything about his involvement in concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source. He may have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered weapon, he was the person who concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the panchnama of the discovery of weapon and the evidence in this regard is that he disclosed that he would show the weapon used in the commission of offence. [Para 67][201-D-G]
Murli v. State of Rajasthan (2009) 9 SCC 417 : [2009]
13 SCR 378; Mohmed Inayatullah v. The State of Maharashtra AIR (1976) SC 483 : [1976] 1 SCR 715; Earabhadrappa v. State of Karnataka AIR (1983) SC
446 : [1983] 2 SCR 552; State of Uttar Pradesh v. Deoman Upadhyaya AIR (1960) SC 1125 : [1961] 1 SCR 14 – relied on.
Pulukuri Kottaya and Others v. Emperor AIR 1947 PC 67; Dudh Nath Pandey v. State of U.P. AIR 1981 SC
911 : [1981] 2 SCR 771; Bodhraj Alias Bodha and Others v. State of Jammu and Kashmir (2002) 8 SCC
45 : [2002] 2 Suppl. SCR 67; A.N. Venkatesh v. State of Karnataka (2005) 7 SCC 714 – referred to.
3.1 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 CrPC 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? [Para 80][208-B-C]
3.2 An extra judicial confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance like the case in hand. The Courts generally look for an independent reliable corroboration before placing any reliance upon an extra judicial confession. [Para 85][212-F-G]
State of Rajasthan v. Raja Ram (2003) 8 SCC 180 : [2003] 2 Suppl. SCR 445; Madan Gopal Kakkad v. Naval Dubey and Another (1992) 3 SCC 204 : [1992]
2 SCR 921; Piara Singh and Others v. State of Punjab (1977) 4 SCC 452 : [1978] 1 SCR 597 – relied on. Sahadevan and Another v. State of Tamil Nadu (2012)
6 SCC 403 : [2012] 4 SCR 366 – referred to.
4. It is a settled principle of criminal jurisprudence that in a case based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. This Court in various decisions has laid down the principles holding that motive for commission of offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of offence is available. It is equally true that failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. However, it is also well settled and it is trite in law that absence of motive could be a missing link of incriminating circumstances, but once the prosecution has established the other incriminating circumstances to its entirety, absence of motive will not give any benefit to the accused. Thus, even if it is believed that the accused appellant had a motive to commit the crime, the same may be an important circumstance in a case based on circumstantial evidence but cannot take the place as a conclusive proof that the person concerned was the author of the crime. One could even say that the presence of motive in the facts and circumstances of the case creates a strong suspicion against the accused appellant but suspicion, howsoever strong, cannot be a substitute for proof of the guilt of the accused beyond reasonable doubt. [Paras 87, 90][213-D-E; 215-D]
Sampath Kumar v. Inspector of Police Krishnagiri (2012) 4 SCC 124 : [2012] 2 SCR 289 – relied on.
5.1 According to the trial court and the High Court, the explanation offered by the accused appellant in regard to the injuries suffered by him on his head is established to be false. In such circumstances, both the courts took the view that the false explanation offered by the accused appellant is an additional link in the chain of circumstances. It is not necessary for this court to go into the issue of false explanation, said to have been offered by the accused appellant as at the most a false explanation can be used as an additional link in the chain of evidence led by the prosecution. This issue pales into insignificance as the various links in the chain of evidence led by the prosecution having not been satisfactorily proved. [Para 92 and 100][215-H; 216-A; 218C]
5.2 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. 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 where there is any infirmity or lacunae in the prosecution case, the same could be cured or supplied by a false defence or a false plea which is not accepted by a Court. [Para 96][217-B-C]
5.3 Before a false explanation can be used as an additional link, the following essential conditions must be satisfied: (i) Various links in the chain of evidence led by the prosecution have been satisfactorily proved. (ii) Such circumstances points to the guilt of the accused as reasonable defence. (iii) The circumstance is in proximity to the time and situation.If the aforesaid conditions are fulfilled only then a Court use a false explanation or a false defence as an additional link to lend as assurance to the Court and not otherwise. [Para 97, 98][217-D-F]
Shankarlal Gyarasilal Dixit v. State of Maharashtra (1981) 2 SCC 35 : [1981] 2 SCR 384 – relied on.
Charles R. Cooper v. F. W. Slade (1857-59) 6 HLC 746 – referred to.
6. None of the pieces of evidence relied on as incriminating by the courts below, can be treated as incriminating pieces of circumstantial evidence against the accused. Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. [Para 116][223-F-H]
7. It is by far now well-settled for a legal proposition that it is the duty of the court to see and ensure that an accused put on a criminal trial is effectively represented by a defence counsel, and in the event on account of indigence, poverty or illiteracy or any other disabling factor, he is not able to engage a counsel of his choice, it becomes the duty of the court to provide him appropriate and meaningful legal aid at the State expense. What is meant by the duty of the State to ensure a fair defence to an accused is not the employment of a defence counsel for namesake. It has to be the provision of a counsel who defends the accused diligently to the best of his abilities. While the quality of the defence or the caliber of the counsel would not militate against the guarantee to a fair trial sanctioned by Articles 21 and 22 resply of the Constitution, a threshold level of competence and due diligence in the discharge of his duties as a defence counsel would certainly be the constitutional guaranteed expectation. The presence of counsel on record means effective, genuine and faithful presence and not a mere farcical, sham or a virtual presence that is illusory, if not fraudulent.[Para 119][224-G-H; 225-A-B]
Dhananjay Shanker Shetty v. State of Maharashtra (2002) 6 SCC 596 : [2002] 1 Suppl. SCR 352; Mohar Rai and Bharath Rai v. State of Bihar AIR 1968 SC 1281 : [1968] 3 SCR 525; Lakshmi Singh and Others v. State of Bihar (1976) 4 SCC 394; Vijay Singh and Ors. v. State of U.P. (1990) CriLJ 1510; Ashish Batham v. State of M.P. (2002) 7 SCC 317 : [2002] 2 Suppl. SCR 146; Kishore Chand v. State of Himachal Pradesh (1991) 1 SCC 286 : [1990] 1 Suppl. SCR 105; Zahira Habibullah Sheikh (5) and Another v. State of Gujarat and Others (2006) 3 SCC 374 : [2006] 2 SCR 1081; Ranchod Mathur Wasawa v. State of Gujarat (1974) 3 SCC 581 : [1974 ] 2 SCR 72; Madhav Hayawadanrao Hoskot v. State of Maharashtra (1978) 3 SCC 544 : [1979] 1 SCR 192; Subhash Chand v. State of
Rajasthan (2002) 1 SCC 702 : [2001] 4 Suppl. SCR
163 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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