Case: KARATTU SHOUKATHALI Vs. STATE OF KERALA

1. This appeal has been preferred by the appellant aggrieved by the judgment and order dated 18.07.2008 passed by the High Court of Kerala partly affirming the judgment of conviction and order of sentence passed by the Additional Sessions Court whereby the appellant has been convicted for the offence under Sections 302, 364, 376, 377 and 379 of the Indian Penal Code (IPC for short). He has been convicted for the offence under Sections 302, 364 and 379 of the IPC by the High Court and acquitted for commission of offence under Sections 376 and 377 of the IPC. Aggrieved thereby, the instant appeal has been preferred. 2. As per the prosecution case, on 11.08.1996, the deceased left her house at 8.00 a.m. in the company of the accused. Thereafter, she did not come back in the evening. A. Alavi, PW-1, father of the deceased, started enquiring about her whereabouts. Vasu, PW-3, informed him that he had seen the deceased in the company of the accused in the morning. Haridas, PW-2 also informed that he had seen deceased in the company of accused in the forest. First Information Report was lodged by A. Alavi, PW-1. The Sub-Inspector recorded his statement at 2.00 a.m. on 12.08.1996 and the offence was registered. The prosecution had examined as many as 15 witnesses. Both the courts below have concurrently held that the chain of circumstances to fasten the guilt upon the appellant is complete. They have found that the deceased was last seen in the company of the accused, body had been recovered at the instance of the accused, the shirt fibre of the accused was found on the person of the deceased. Besides that, there was recovery of gold ornaments and purse of the deceased from the house of Shajahan, brother-in-law of the accused. 3. It was submitted by the learned counsel appearing on behalf of the appellant that the chain of circumstances is not complete. He has placed reliance upon the decision of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116. Paragraphs 151 to 153 of the said judgment read as follows. 151. 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 and no decision has taken a contrary view. What some cases have held is only this: 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. 152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh, 1952 SCR 1091. This case has been Uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (alias) Simmi v. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal vinod jha. State of Maharashtra, (1972) 4 SCC 625. It may be useful to extract what Mahajan, J. has laid down in Hanumants case (supra): 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 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. 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, 1973 SCC (Cri) 1033 where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions. (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 show that in all human probability the act must have been done by the accused. 4. We have considered the aforesaid decision and on its anvil evidence adduced in the instant case minutely and examined the circumstances found established in the case and have also examined the concurrent finding recorded by the courts below. We find that the chain of circumstances is complete in the instant case. The deceased was taken by the accused in the morning of 11.08.1996 as stated by Vasu, PW-3. The accused was sitting with the deceased on a rock in the forest at 10.30 a.m. Haridas, PW-2, had seen them, at last. When she did not come back in the evening and on making an enquiry about her whereabouts by her father, A. Alavi, PW-1, as she could not be traced, First Information Report was lodged, which was recorded at 2.00 a.m. on 12.08.1996. Thereafter, as the accused and the deceased were last seen together, the appellant was apprehended by the police and at his instance the body was found in the forest. The circumstance that the accused had taken deceased from village and was found in the company of the deceased in forest also stands corroborated. The involvement of accused in offence finds support from material evidence that the fabric of the shirt of the accused tallied with the fabric found on the person of the deceased. Besides that, recovery of gold ornaments and purse of the deceased from the house of Shajahan, brother-in-law of the accused at the instance of accused pursuant to information furnished by him under Section 27 of Evidence Act stands established. 5. We are not impressed by the submission raised by the learned counsel for the appellant that, according to A. Alavi, PW-1, at 6.00 a.m. the police had apprehended the accused/appellant whereas the police says that it apprehended him at 9.00 a.m. There may be some discrepancies as to few hours due to loss of memory of A. Alavi, PW-1, which is not material. Crucial fact is that the recovery of the body at the instance of the appellant in the forest, the shirt fabric of the accused was found on the person of the deceased and also the recovery of the gold ornaments of the deceased. Vasu, PW-3, had seen the accused who had taken the deceased from the house and Haridas, PW-2, had seen them together in forest sitting on a rock, as such chain of circumstances stand completed so as to fasten the guilt. The burden was upon the accused to explain the circumstances in which he parted with company of deceased, how he came into possession of gold ornaments and purse of deceased and how was aware of where body was lying in the forest. He simply made bald denial which is not sufficient whereas as per provision of Section 106 of Evidence Act he should have explained the circumstances against him.

Decision:
0[ds]4. We have considered the aforesaid decision and on its anvil evidence adduced in the instant case minutely and examined the circumstances found established in the case and have also examined the concurrent finding recorded by the courts below. We find that the chain of circumstances is complete in the instant case. The deceased was taken by the accused in the morning of 11.08.1996 as stated by Vasu, PW-3. The accused was sitting with the deceased on a rock in the forest at 10.30 a.m. Haridas, PW-2, had seen them, at last. When she did not come back in the evening and on making an enquiry about her whereabouts by her father, A. Alavi, PW-1, as she could not be traced, First Information Report was lodged, which was recorded at 2.00 a.m. on 12.08.1996. Thereafter, as the accused and the deceased were last seen together, the appellant was apprehended by the police and at his instance the body was found in the forest. The circumstance that the accused had taken deceased from village and was found in the company of the deceased in forest also stands corroborated. The involvement of accused in offence finds support from material evidence that the fabric of the shirt of the accused tallied with the fabric found on the person of the deceased. Besides that, recovery of gold ornaments and purse of the deceased from the house of Shajahan, brother-in-law of the accused at the instance of accused pursuant to information furnished by him under Section 27 of Evidence Act stands established.5. We are not impressed by the submission raised by the learned counsel for the appellant that, according to A. Alavi, PW-1, at 6.00 a.m. the police had apprehended the accused/appellant whereas the police says that it apprehended him at 9.00 a.m. There may be some discrepancies as to few hours due to loss of memory of A. Alavi, PW-1, which is not material. Crucial fact is that the recovery of the body at the instance of the appellant in the forest, the shirt fabric of the accused was found on the person of the deceased and also the recovery of the gold ornaments of the deceased. Vasu, PW-3, had seen the accused who had taken the deceased from the house and Haridas, PW-2, had seen them together in forest sitting on a rock, as such chain of circumstances stand completed so as to fasten the guilt. The burden was upon the accused to explain the circumstances in which he parted with company of deceased, how he came into possession of gold ornaments and purse of deceased and how was aware of where body was lying in the forest. He simply made bald denial which is not sufficient whereas as per provision of Section 106 of Evidence Act he should have explained the circumstances against him.