REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 831 of 2007 SK. [ENTITY] Appellant Versus [ENTITY] Respondent J U D G M E N T
Dr. [ENTITY], J.
1. This criminal appeal has been preferred against the judgment and order dated 28.06.2006 passed by the High Court of Calcutta in [CASE NUMBER], by which it dismissed the appeal of the appellant against the judgment and order of conviction dated 26.5.2000 passed by the Additional Sessions Judge, First Court, Burdwan in [CASE NUMBER], convicting the appellant under [SECTION] and [SECTION] of the [ACT] (hereinafter referred to as `[ACT]') and appellant has been imposed the sentence to suffer rigorous imprisonment for life under [SECTION] [ACT] and sentence of one year under [SECTION] [ACT]. Both the sentences have been directed to run concurrently.
2. The facts and circumstances giving rise to this case are that:
(A) On 31.08.1991, [ENTITY], daughter of [ENTITY], resident of village Batrish Bigha, PS: Jamalpur, aged 13 years, had gone to pluck jhinga at about 9.30 A.M. from her jhinga field. She did not return till 10.30 A.M., her father [ENTITY] alongwith [ENTITY] and [ENTITY] went to search her, however, could not trace her in the jhinga field. They looked for her in bamboo grove in nearby graveyard and found a freshly dug earth, thus, they removed the soil and found the dead body of [ENTITY]. (B) [ENTITY] (PW.1) lodged the FIR on the same day at 12.05 hours under [SECTION] and [SECTION] [ACT] at Police Station Jamalpur, District Burdwan at a distance of 8 kilometres from the place of occurrence, wherein the appellant was named as accused on the suspicion that appellant was seen by [ENTITY] (PW.5) and [ENTITY] catching fish in the canal adjoining his jhinga field and was also seen talking with deceased. The appellant was having a spade in his hand, when it is inquired from the appellant, he replied that he had gone to catch the fish near railway track. Subsequently, the appellant absconded. In the FIR, it had already been mentioned before committing the murder, [ENTITY], the appellant tried to commit rape and on being resisted by the deceased, the appellant assaulted her on her head with spade and murdered and buried her in the graveyard.
Thus, investigation ensued. The appellant was arrested on 7.9.1991 by the villagers in the paddy fields near Batrish Bigha and handed over to the police. It was on his disclosure that an old spade, one ghuni and one enamel thala (plate) were recovered. After completing the investigation, chargesheet was filed against the appellant. He denied his involvement in the crime pleading not guilty. Thus, he was put to trial. The prosecution examined 19 witnesses to prove its case.
(C) After conclusion of the trial, the Additional Sessions Judge, Burdwan, vide judgment and order dated 26.5.2000 found the appellant guilty of offences punishable under [SECTION] and [SECTION] [ACT] and sentenced him to life imprisonment and fine of Rs.1,000/-
under [SECTION] [ACT] and further sentenced to one year rigorous imprisonment and fine of Rs.500/- under [SECTION] [ACT].
(D) Being aggrieved from the aforesaid judgment, the appellant preferred [CASE NUMBER] in the High Court of Calcutta which has been dismissed vide judgment and order dated 28.6.2006. Hence, this appeal.
3. Shri [ENTITY], learned Amicus Curiae, has submitted that it is a case of circumstantial evidence. There is no evidence on record that [ENTITY], deceased, was seen with the appellant at the place of occurrence. The spade recovered by the Investigating Officer during investigation had not been sent for chemical analysis. The trial court as well as the High Court placed a very heavy reliance upon extra-judicial confession allegedly made by the appellant before [ENTITY] (PW.11) and [ENTITY] (PW.13) and others though there was no such confession. [ENTITY] is the brother-in-law of [ENTITY] (PW.2), father of the deceased. [ENTITY] (PW.13) is a resident of the village of [ENTITY] (PW.11). He did not support the version of extra-judicial confession put forward by [ENTITY] (PW.11). There are contradictory statements regarding catching hold of the appellant at Jamalpur after one week of the incidence. There is no evidence of sexual assault on the deceased. Dr. [ENTITY] (PW.18), who conducted the post-mortem on the body of [ENTITY] (deceased) did not mention in his report that any sexual assault was made on the deceased prior to her death. Thus, the appeal deserves to be allowed.
4. On the contrary, Shri [ENTITY], learned counsel appearing for the State, has vehemently opposed the appeal contending that there are concurrent findings of fact which do not require any interference by this Court. Undoubtedly, the case is based on circumstantial evidence but chain is complete and the circumstantial evidence is so strong that it unmistakably points to the guilt of the appellant and that circumstances are incapable of explanation upon any other reasonable hypothesis that of the guilt of the appellant. There have been sufficient material on the basis of which the two courts below have convicted the appellant and the said judgments do not require any interference. The appeal lacks merit and is liable to be dismissed.
5. We have considered the submissions made by the learned counsel for the parties and perused the record. Before proceeding further, it may be necessary to refer to the findings recorded by the courts below briefly.
6. Trial Court's findings:
I. It appears from the evidence of [ENTITY] (PW.11) and [ENTITY] (PW.13) that the accused made an extra-judicial confession before them and also before other villagers when he was caught by them about 7 days after his leaving away from his village after the date of occurrence. The court further held that there was no direct evidence and it was a case of circumstantial evidence and there was enough evidence on record, particularly, of [ENTITY] (PW.1), [ENTITY] (PW.2), [ENTITY] (PW.3), [ENTITY] (PW.4), [ENTITY] (PW.5), [ENTITY] (PW.6) and [ENTITY] (PW.7) that accused was present near the place of occurrence at the relevant time when [ENTITY], deceased went to jhinga field and the accused was carrying at that time one spade. II. It appears from the evidence of [ENTITY] (PW.5) and [ENTITY] (PW.6) that there was no one else at the place of occurrence adjacent to jhinga field and the accused was carrying one spade on the basis of which the trial Court came to the following conclusion:
"So there may be a reasonable inference that the accused, who had one spade in his hand and who was engaged in catching fish near the P.O., suddenly attacked the victim- [ENTITY] when she came to the jhinga field and thereafter attempted to rape her and when he was resisted by her he became violent and murdered [ENTITY] with the help of his spade. The medical evidence given by Dr. [ENTITY] (PW.18) will corroborate that [ENTITY] was murdered by [ENTITY] with a sharp-cutting weapon, which may be a spade and also by suffocation. The accused only had the opportunity to assault [ENTITY] in such a way as he carried the spade with him at that time and there is no evidence from any side that except the accused such a spade was carried at that time by anybody else. Moreover, the accused himself had admitted in his extra-judicial confession before [ENTITY] (PW.11) and [ENTITY] (PW.13) and others that he murdered [ENTITY] at the relevant time when he was resisted by her from committing rape upon her at the relevant time".
III. Extra-judicial confession came from the mouth of the witnesses who appeared to be unbiased and not even remotely inimical to the accused. Undoubtedly, [ENTITY] (PW.11) was a maternal uncle of the deceased but another witness in this regard i.e. [ENTITY] (PW.3) had no relationship with the family of the victim. Therefore, his evidence to the extent of extra-judicial confession would be legally and validly taken into consideration. The trial Court basically found the incriminating circumstance against the appellant as he is absconding and ultimately it found that there was cogent evidence against the appellant.
7. High Court's findings:
The High Court has accepted the judgment of the trial Court in toto observing that depositions of the witnesses, particularly, [ENTITY] (PW.4) and [ENTITY] (PW.5) remained unshaken to the extent that at the material time they found the accused near the place of graveyard with spade in his hand. Another circumstance which swayed with the High Court had been that just after the incident the appellant ran away. The High Court has accepted non- examination of some material witnesses, particularly, [ENTITY], [ENTITY] and [ENTITY], accepting the explanation furnished by [ENTITY] (PW.4) that at the relevant point of leading evidence, none of these persons was available in that area. The extra-judicial confession made by the appellant-accused before [ENTITY] (PW.11) and [ENTITY] (PW.13) in presence of others has also been accepted. Further, the High Court had accepted the explanation furnished by the prosecution that in case there has been some laches on the part of the Investigating Officer in sending the spade etc. for chemical analysis, no adverse presumption can be drawn against the prosecution. The motive had been found as to the possibility of the accused trying to commit sexual assault. All these factors had been found by the High Court of the conclusive nature as to exclude every other possibility except the accused being guilty of the offence.
8. The case requires to be examined as to whether the aforesaid findings are sustainable in the eyes of law.
LAST SEEN THEORY:
9. The courts below have concluded that there was sufficient material on record to show that the deceased and the appellant were seen together at the place of occurrence. [ENTITY] (PW.5) is alleged to have stated in this regard. The relevant part of his statement reads as under:
"When I was returning from my field at 9.00 A.M., I saw [ENTITY], appellant, catching fish near the jhinga field adjacent to the graveyard. I talked with him there and thereafter returned home. I did not see anybody else near that place. At about 10.45 A.M., I heard that the dead body of the [ENTITY] was recovered from the graveyard as she had been murdered by someone. I went to graveyard alongwith others. When the police officer asked me as to who was the person, I told him that I saw [ENTITY], appellant, catching fish in a nala near the graveyard."(Emphasis added)
10. Another star witness [ENTITY] (PW.4) stated :
"I alongwith [ENTITY] went to the house of [ENTITY], appellant. We saw at the time that [ENTITY], appellant, was going to his house with a spade and thala. [ENTITY], appellant reported to us that he went to catch fish beside the nala. [ENTITY] and [ENTITY] firmly stated that they saw [ENTITY], near the jhinga field. I again went to the house of [ENTITY], and saw he fled away. Therefore, we could not apprehend [ENTITY], in our village."
11. [ENTITY] (PW.4), a resident of the same village deposed that alongwith other persons particularly [ENTITY], he went to the house of [ENTITY], appellant, and saw that he was going to his house with a spade and thala and [ENTITY] had told them that he had gone to catch fish beside the nala. He stated as under:
"I do not know as to why [ENTITY] was murdered. [ENTITY] is not a resident of our village. I cannot say where he is now residing. [ENTITY] is an ailing person. [ENTITY] is now residing in Punjab. I saw [ENTITY] coming to his house carrying spade and a plate in his hand. I heard from [ENTITY] and [ENTITY] that they had seen the accused near the place of occurrence."
12. [ENTITY] (PW.1), informant has deposed that [ENTITY] (PW.5) and [ENTITY] (not examined) saw that [ENTITY] was talking with the deceased, [ENTITY]. [ENTITY] (PW.2), father of the deceased had deposed as under:
"I came to know that [ENTITY] murdered my daughter I cannot say what was the reason for murder of my daughter".
13. The persons particularly [ENTITY] and [ENTITY] who had told these witnesses that they had seen the appellant-accused near the jhinga field at the relevant time had not been examined. More so, it has not been stated by any of the aforesaid witnesses or persons not examined that [ENTITY] (deceased) was also seen there alongwith [ENTITY], appellant. It has not been deposed by any of the witnesses that deceased was seen talking with the appellant at all.
14. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen 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. (Vide: Mohd. Azad alias Samin v.
[ENTITY], (2008) 15 SCC 449; and State thr. Central Bureau of Investigation v. Mahender Singh Dahiya, ([SECTION]1) 3 SCC
109).
15. From the above, it is evident that neither [ENTITY] (PW.4) nor [ENTITY] (PW.5) had stated that either of them had seen [ENTITY] (deceased) alongwith [ENTITY], near the place of occurrence in close proximity of time. All the witnesses deposed that appellant alone was seen near the place of occurrence with spade as he had gone there for catching the fish. Thus, there is no evidence to the extent that the deceased and appellant were seen together at the place of occurrence or nearby the same in close proximity of time.
16. While the appellant-accused was examined by the trial Court under [SECTION] of [ACT] (hereinafter called as [ACT]), he was asked the question that during that time [ENTITY] (PW.5) and [ENTITY] (not examined) had seen him talking with the deceased. The appellant replied that he was innocent.
17. We fail to understand as no witness had deposed seeing [ENTITY], deceased talking with the appellant/accused, how such a question could be put to the accused.
EXTRA-JUDICIAL CONFESSION:
18. [ENTITY] (PW.11), maternal uncle of the deceased, resident of village Rupsona, is not a witness of incident, rather deposed that he was the person who chased and apprehended the appellant after about 7 days of the incident. The relevant part of his statement reads as under:
"After 6-7 days, when I went to Shyamsundar Bazar for my business, I saw [ENTITY] on the roof of a bus. He got down from the bus after seeing me. He told me that he did the wrong and begged apology for that and pleaded not to assault him but take him to Jamalpur Police Station. I took [ENTITY] towards Batrish Bigha village by boat and when we crossed the river Damodar, [ENTITY] started running. I chased him but failed to catch him and then cried for help. Thereafter, public caught [ENTITY] at Jamalpur Poolmatha. When we took him to the village, [ENTITY] admitted to him and others that he murdered [ENTITY] and, thereafter, he asked the persons to take him to Jamalpur Police Station. [ENTITY] told them that he attempted to commit rape upon [ENTITY] and when she resisted, he assaulted her with the spade on her head and killed her and concealed the dead body in the graveyard".
(Emphasis added) In his cross-examination, PW.11 repeated the same about the confession made by [ENTITY], appellant before him in presence of other persons of the village.
19. [ENTITY] (PW.13) is a resident of the village of [ENTITY] (PW.11) and deposed :
" I went to Shyamsundar Bazar for purchasing goats. At that time, we see the accused on the roof of a bus. My friend [ENTITY] who was with me asked the accused to come down and he came down from the roof of the bus and requested us not to assault him and to take him at the Police Station Jamalpur and thereafter [ENTITY] took the accused towards Jamapur Police Station."
In the cross examination, his deposition is as under:
"I did not state to I.O. that after crossing the river at Karalaghat the accused ran towards Jamalpur. I did not chase the accused by crying - catch, catch. I did not state to I.O. that some persons of Jamalpur caught the accused. I alone went to Shyamsundar Bazar. Thereafter I purchased goats from Shyamsundar Bazar. I cannot say anything more about the occurrence."
20. By comparison of the statements of [ENTITY] (PW.11) and [ENTITY], (PW.13), it is evident that [ENTITY] (PW.11) did not state anywhere in his statement in the court that at the time of apprehending the accused, [ENTITY] (PW.13) was also with him. It is only [ENTITY] (PW.13) who stated that his friend [ENTITY] (PW.11) was with him. He further stated that it was [ENTITY] who asked the accused to come down from the roof of the bus and the accused came down. The statement of [ENTITY] (PW.11) is otherwise that he saw [ENTITY], appellant, on the roof of the bus. [ENTITY], appellant, got down from the bus after seeing him and told him that he did the wrong and begged apology for that. [ENTITY] (PW.13) did not speak anywhere regarding any confession, though stated that the accused requested them not to assault, rather to take him to police station. The material contradictions are there in respect of the manner in which the appellant had been apprehended. [ENTITY] (PW.13) did not state that appellant made an attempt to runaway after making the said witness.
21. [ENTITY] (PW.19), the Investigating Officer has deposed that he had noticed the marks of injury on the cheek, forehead and head of the deceased. The wearing apparels of the victim were not soaked with blood. He only sent the wearing pant of the victim for chemical examination. He seized spade but did not sent it for chemical analysis. In his cross-examination he has stated as under:
"The witness [ENTITY] stated to me that the accused was caught by some persons at Jamalpur Pool- matha and thereafter police came and at that time the accused stated before those persons and police that he tried to commit rape [ENTITY] on 31.8.1998 and when she resisted the accused hit her with a spade and thereafter hid her body in the court-yard by digging some earth there".
(Emphasis added)
22. Both, [ENTITY] (PW.11) and [ENTITY] (PW.13) are chance witnesses as they alleged to be in Shyamsundar Bazar on that date for marketing and none of them had regular business in that bazar. The Court while dealing with a circumstance of extra-judicial confession must keep in mind that it is a very weak type of evidence and require appreciation with great caution.
Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witness must be clear, unambiguous and clearly convey that accused is the perpetrator of the crime. The "extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility". (See: [PRECEDENT]; and Kulvinder Singh & Anr. v. State of Haryana, ([SECTION]1) 5 SCC 258).
23. [ENTITY] (PW.11) who is maternal uncle of the deceased had deposed about extra-judicial confession made by the accused in presence of others, though he was not able to explain who were the other persons as no other person has been examined in this respect.
[ENTITY] (PW.19) had deposed that [ENTITY] (PW.11) had told him about the confession by the accused in presence of other persons and police personnel. The accused had told him also that dead body was buried in the courtyard. Thus, the theory of extra-judicial confession revealed by [ENTITY] (PW.11) does not get corroboration from the statement of [ENTITY] (PW.13) or any other independent witness or police personnel. Nor the body of the deceased was recovered from the courtyard. While considering the material contradictions in the statement of [ENTITY] (PW.11) and [ENTITY] (PW.13), we do not consider that it would be safe to accept his version in this respect.
24. Dr. [ENTITY] (PW.18), who conducted the autopsy on the body of [ENTITY] found the following injuries:
i) One incised wound 4" x 0.2" x scalp deep over middle 3rd of left parietal region (vault of the scalp) cutting through the skin, pussa, muscle, vessel and nerve and being placed 1.2" left on mid-line of the body;
ii) Bruises over 1" x 0.6" x over left side of forehead and being placed 0.5" left of mid-line of the body;
iii) One lacerated wound 0.6" x 0.4" muscle and bone deep over left molar region with extra-vesation of blood and blood-clot in around the wound;
iv) Haema toma (red) 3.2" x 1.5" in area over left temporal parietal region;
v) Subdural haemorrhage of both sides of tempero parietal region of the brain.
In the opinion of the doctor, death was due to combine effect of injuries and suffocation. The incised wound could be caused by a hit of sharp edge of the spade. The haema toma on the victim could be caused by a hit of heavy blunt weapon. This witness did not speak of any sign of sexual assault on the deceased before or after her death.
ABSCONDANCE:
25. Both the courts below have considered the circumstance of abscondance of the appellant as a circumstance on the basis of which an adverse inference could be drawn against him. It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely being suspected, out of fear of police arrest and harassment. (Vide: [PRECEDENT]; Paramjeet Singh @ Pamma v.
State of Uttarakhand AIR [SECTION]1 SC 200; and Rabindra Kumar Pal @ Dara Singh v. Republic of India, ([SECTION]1) 2 SCC 490) Thus, in view of the law referred to hereinabove, mere abscondance of the appellant cannot be taken as a circumstance which give rise to draw an adverse inference against him.
26. CIRCUMSTANTIAL EVIDENCE:
Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. 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. (Vide:
[PRECEDENT], [PRECEDENT] represented by Inspector of Police, (2008) 15 SCC 430; and Wakkar & Anr. v. State of Uttar Pradesh, ([SECTION]1) 3 SCC 306).
27. No presumption could be drawn on the issue of last seen together merely on the fact that [ENTITY] (PW.2), father of the deceased had stated that [ENTITY] had gone to pluck the jhinga and her dead body was recovered from there. The witnesses merely stated that the accused was present in the close proximity of that area.
That does not itself establish the last seen theory because none of the witnesses said that the accused and deceased were seen together. Most of the witnesses had deposed that the accused was having spade. It may connect the appellant to the factum of digging the earth. A person going for catching fish normally does not take a spade with him.
The nature of the admissibility of the facts discovered pursuant to the statement of the accused under [SECTION] of Indian Evidence Act, 1872 is very limited. If an accused deposes to the police officer the fact as a result of which the weapon with which the crime is committed is discovered, and as a result of such disclosure, recovery of the weapon is made, no inference can be drawn against the accused, if there is no evidence connecting the weapon with the crime alleged to have been committed by the accused.
Be that as it may, the spade had not been sent for chemical analysis as admitted by [ENTITY] (PW.19), I.O. himself and there was no explanation furnished as for what reason it was not sent.
In case of circumstantial evidence, not sending the weapon used in crime for chemical analysis is fatal for the reason that the circumstantial evidence may not lead to the only irresistible conclusion that the appellant was the perpetrator of the crime and none else and that in the absence of any report of Serologist as to the presence of human blood on the weapon may make the conviction of the accused unsustainable. (Vide: [PRECEDENT]).
There is no medical evidence or suggestion by any person as to the sexual assault on the deceased. Therefore, it merely remained the guesswork of the people at large. Mere imagination that such thing might have happened is not enough to record conviction.
28. This incident had occurred in a broad day light at 9.30 a.m. in the month of August in the agricultural field surrounded by agricultural field of others. Therefore, the presence of a large number of persons in the close vicinity of the place of occurrence can be presumed and it is apparent also from the statement of [ENTITY] (PW.6). Thus, had the deceased been with the appellant, somebody could have seen her at the place of occurrence. It cannot be a positive evidence as concluded by the courts below that none other than the appellant could commit her murder because no one else had been there at the place of occurrence. In fact, nobody had ever seen the deceased at the place of occurrence. Digging the earth by a single person to the extent that a dead body be covered by earth requires a considerable time and there was a possibility that during such period somebody could have seen the person indulged in any of these activities, though no evidence is there to that extent. The circumstances from which the conclusion of guilt is to be drawn in such a case should be fully established. The circumstances concerned "must or should" and "not and may be"
established. In the instant case, the circumstances have not been established.
29. In view of the above, we are of the considered opinion that the courts below convicted the appellant on a mere superfluous approach without in depth analysis of the relevant facts.
30. In the facts and circumstances of the case, the appeal succeeds and is allowed. The appellant is given benefit of doubt and acquitted of the charges of offences punishable under [SECTION] and [SECTION] [ACT].
Appellant is in jail. He be released forthwith unless his detention is required in any other case.
J. (Dr. [ENTITY])
J. ([ENTITY]) New Delhi, June 14, [SECTION]1