[2008] 16 S.C.R 826

BALDEV SINGH

STATE OF HARYANA (Criminal Appeal No. 320 of 2007)

DECEMBER 1, 2008 -

[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM

SHARMA, JJ.]

Penal Code, 1860 - ss. 302 and 354 - Conviction under c - By Courts below - On the basis of circumstantial evidence

- On appeal, held: Circumstances on which the Courts below held the accused guilty are not determinative to hold the accused guilty of the offence - Hence, acquitted.

Evidence - Circumstantial evidence - Reliance on - D Held: Conviction can be based on such evidence - Condition precedent for reliance before conviction, discussed.

Appellant-accused faced trial for commission of offences punishable u/ss. 302, 376 or in the alternatives.

E 376/511 IPC. Prosecution case was based on

circumstanUal evidence. As per prosecution, accused was arrested after he made extra-judicial confession to PW-11 and ex Sarpanch of the village. Trial Court convicted the appellant holding him guilty u/ss. 302 and F 354 IPC. High Court confirmed the conviction.

In appeal to this Court, appellant contended that his con'{iction barely on the basis that injuries were present on the person of the accused was not correct as both the courts had found that the rape was not proved; that extra- G judicial confession was not proved and last seen evidence through PW-9 was also not sufficient to hold the accused guilty.

Allowing the appeal, the Court

H 826

BALDEV SINGH v. STATE OF HARYANA 827

~ 1 HELD: 1. The judgment of trial court affirmed by High A Court cannot be maintained. The trial court held that the accused was examined by the doctor (PW 3) who found abrasions on the thighs and hip joints ofthe accused, as the injuries must have been received in a scuffle. Thi$ circumstance found supported from the finding of B 'chappals' and other articles. It was held that recovery of utensil and 'chappals' of the deceased does not lead to

the guilt of the accused, but that circumstances show the involvement of the accused who was found to have injuries on the person corresponding with the injuries on c the deceased. Circumstances on which the trial court and the High Court had relied on to hold the accused guilty,, by no stretch of imagination can be determinative of the fact that accused was responsible for the commission of rape. Even if it is accepted that the chappals and the D utensils were found in the fields of the appellant, the dead body was found at another place. (Paras 14, 15 and 16]

(835-8-C, H; 836-A-B]

2. Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when E all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. There is no doubt that conviction can .be based solely on circumstantial

I evidence but it should be tested by the touch-stone of F -. law relating to circumstantial evidence. They are 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; the facts so established should be G

.,,.. consistent only with the hypothesis of the guilt of the

1 accused, that is to say, 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; they should exclude every possible H ....

A hypothesis except the one to be proved; andthere 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 B accused. [Paras 5, 10 and 12] [831-C; 833-D; 834-C-G]

. 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 Kamataka AIR 1983 SC 446; c

Stat~ of U.P. v. Sukhbasi and Ors. AIR 1985 SC 1224; Ba/winder Singh v. State of Punjab AIR 1987 SC 350; Ashok Kumar Chatterjee v. State of M.P. AIR 1989 SC 1890; Bhagat Ram v. State of Punjab AIR 1954 SC 621; C. Chenga Reddy and Ors. v. State of A.P. 1996 (10) SCC 193; Padala Veera

D Reddy v. State of A.P. and Ors. AIR 1990 SC 79; State of U.P.

v. Ashok Kumar Srivastava 1992 Crl.LJ 1104; Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, AIR 1952 SC 343; Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; State of Rajasthan v. Raja Ram 2003 (8) SCC 180; State of Haryana v. Jagbir Singh and E Anr. 2003 (11) SCC 261; Kusuma Ankama 'Rao v. State of A.P. 2008 (10) SCR 89, relied on.

Case Law Reference:

AIR 1977 SC 1063 Relied on.

Para 5 F . Para 5

, .

AIR 1956 SC 316 Relied on. )..

AIR 1983 SC 446 Relied on.

Para 5

AIR 1985 SC 1224 Relied on.

Para 5

AIR 1987 SC 350 Relied on.

Para 5 ....

AIR 1989 SC 1890 Relied on.

Para 5 ,,...

AIR 1954 SC 621 Relied on.

Para 5

H 1996 (10) sec 193 Relied on.

Para 6 . -~

~ BALDEV SINGH v. STATE OF HARYANA 829

AIR 1990 SC 79 Relied on.

Para 7 A

~ 1

1992 Crl.LJ 1104 Relied on.

Para 8

AIR 1952 SC 343 Relied on.

Para 11

AIR 1984 SC 1622 Relied on.

Para 12 B

2003 (8) sec 180 Relied on.

Para 13

2003 (11) sec 261 Relied on.

Para 13 .,,

Para 13

2008 (10) SCR 89 Relied on. c CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 320 of 2007.

From the final Judgment and Order dated 5.12.2006 of the High Court of Punjab and Haryana at Chandigarh in Criminal D Appeal No. 554-DB of 1997.

Swaraj Kaushal, Jagjit Singh Chhabra and Jaswant Perroya for the Appellant.

T.V. George for the Respondent.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the judgment of a Division Bench of the Punjab and Haryana High Court upholding the conviction of the appellant for offences F punishable under Sections 302 and 354 of the Indian Penal

41 Code, 1860 (in short the 'IPC'). The accused faced trial for alleged commission of offences punishable under Sections 302, 376 or in the alternative 376/511 IPC. However, he was convicted by learned Additional Sessions Judge, Jagadhari, as , G noted above and the appeal filed by the appellant before the '.· High Court was dismissed.

2. Background facts in a nutshell are as follows:

Balwinder Kaur alias Rani (hereinafter referred to as the H -t

A 'deceased') was the daughter of Lal Singh. Both the deceased ., and the present appellant accused belonged to the same village. On 20.3.1993 at about 4 PM, deceased went to the fields to serve tea to her parents who were working .in the fields as labourers. Around 5 PM deceased left for her home. Her B parents reached home at around 6PM and found that their daughter had not returned till then. Therefore, Lal Singh (PW 12), his wife left for the fields to look for their daughter. They found Dolu (steel container), glasses (tumblers) and chappals "'( of their daughter in the field. They sent Parsa Ham who was c with them to ask for a tractor. Around mid night, in the tractor head light they found the body of their daughter in the fields of one Shea Ram with her salwar removed. One part of the salwar was around her neck and the other was stuffed to her mouth.

At about 2 pm in the night First Information Report (in short the

D 'FIR') was registered at the Radaur Police Station. According to the appellant he was apprehended on 21.3.1993, whereas the prosecution claimed that he was arrested on 24.3.1993. On 24.3.1993 accused is stated to have made extra judicial confession to Ram Dia (PW11) and Punnu Ram ex Sarpanch

E of-the village who was not examined as witness. On the same day he was produced before the police by PW11 and Punnu Ram at the Police Station, Radaur. Medical examination of the accused was conducted by the Doctor PW3. On 10.6.1993 the accused was sent for trial. After completion of investigation

F charge sheet was filed. It is to be noted the.accused's father Sher Singh was sent:up for trial for alleged commission of offence punishable under Section 201 IPC. Since the ).. accused's case was not one of direct evidence and rested on circumstantial evidence, the trial court analysed various circumstances and held the appellant guilty as noted above and G the appeal before the High Court did not bring any relief.

3. Learned counsel for the appellant submitted that the trial court and the High Court found that; (1) the rape was not' proved;

(2) extra judicial confession was not proved;(3) last seen

H evidence as projected by prosecution through the evidence of

~ ..., BALDEV SINGH v. STATE OF HARYANA 831

[DR. ARIJIT PASAYAT, J.]

1 lnder Raj (PW9) was n, ot sufficient to hold the appellant guilty.

A But having so held, the trial court found the presence of injuries -, on the accused to be sufficient to hold the appellant guiity. Thus it is submitted that it is by no stretch of imagination the determinative factor to hold the appellant guilty.

4. learned counsel for the State on the other hand B

---<;

supported the judgment. ..

5. It has been consistently laid down by this Court that 1 where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating c 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); Ba/winder 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 .E 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 F

~ be such as to negate the innocence of the accused and bring the offences home beyond any reasonable doubt.

6. VVe may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) G 10 sec 193, wherein it has been observed thus:

-i "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 H

A 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 .... ". a

7. In adala Veera Reddy v. State of A.P. and Ors. (AIR " \ 1990 SC 79), it was laid down that when a case rests upon

I circumstantial evidence, such evidence must satisfy the "(

following tests: \ c "(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 D 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

E committed by the accused and none else; and

(4) the ctrcumstantial 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

F guilt of th.e accused but should be inconsistent with his ihnocence." )..·

8. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken

G 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 t the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so

.14

established must be consistent only with the hypothesis of guilt. ...

BALDEV SINGH v. STATE OF HARYANA 833

[DR. ARIJIT PASAYAT, J.] - ,.

9. Sir Alfred Wills in his admirable book "Wills' A

J 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 B 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

J justify the inference of guilt, the inculpatory facts must be c 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" ..

10. There is no doubt that conviction can be based solely 0

on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by

tthe this Court as far back as in 1952.

11. In Hanumant Govind Nargundkar and Anr. V. State E of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:

_, "It is well to remember that in cases where the evidence 1 is of a circumstantial nature, the circumstances from which F -.it 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

G be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a

1 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 H .....

that within all human probability the act must have been done by the accused."

12. A reference may be made to a later decision in Sha rad Birdhichand Sa rd a v. State of Maharashtra, (Al R 1984 SC 1622). Therein,· while dealing with c:ircumstantial 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) th~ drcumstances from which the conclusion of guiltis 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 theguilt 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.

13. These aspects were highlighted in State of Rajasthan v.- Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261) and Kusuma Ankama Rao v. State of A.P. (Criminal Appeal No.185/2005 disposed

'!" ..

BALDEV SINGH v. STATE OF HARYANA 835

[DR ARIJIT PASAYAT, J.]

,....,

~ of on 7.7.2008).

14. In the background of what has been stated above relating to the law on circumstantial evidence,· only question.to be examined is whether the presence of the injuries on the accused can be held to be sufficient to hold appellant guilty. The B trial court held that the accused was examined on 24.3.1993 by the doctor PW 3 who found abrasions Or) the thighs and hip

y joints of the accused, as the injuries must have been received in a scuffle. This circumstance found supported from the finding of chappals and other articles. It was held that recovery of utensil c and chappals of the deceased does not lead to the guilt of the accused but that circumstances show the involvement of the accused who was found to have injuries on the persons corresponding with the injuries on the deceased. The High Court noted as follows:

D "In our considered view, a very strong circumstance

! which connects the appellant with the commission of

~ offence is the presence of injuries on his person especially thigh and hip joints."

"This certainly is a very strong circumstance which E

by itself can be said to be conclusive in its nature pointing towards the guilt of the accused."

"The recovery of chappals, Dolu (steel container) and certain other articles from the fields of the appellant speak F volumes of the fact of a strong corroborative circumstance against the appellant."

"The aforesaid strong circumstances can very well be taken in to account for upholding the conviction of the G appellant."

...

15. Circumstances on which the trial court and the High Court had relied to hold the accused guilty by no stretch of imagination can be determinative of the fact that accused was

A responsible for the commission of rape. Even if it is accepted that the chappals and the utensils were found in the. fields of the appellant, the dead body was found by another place i.e. in the tield of Shea Ram. ·

16. Above beihg the position that the judgment ofthe trial court affirmed by the High Court cannot be maintained and are set aside. The appeal is allowed. The ap.pellant who is in custody shall be released forthwith unless required to be in custody in connection wit~ any other case.

C KK.T. ·Appeal allowed.

......

- .

I . t

I r