REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 720 OF 2004

Asraf SK and Anr. …Appellants

Versus

State of West Bengal …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the

Calcutta  High  Court  upholding  the  conviction  recorded  by  learned

Additional Sessions Judge, 12th Court, 24 Parganas (South) in Sessions Trial

No.1(6)  of 1988. Both the appellants were convicted for offence punishable

under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in

short the ‘IPC’) and sentenced to imprisonment of life.

2. The prosecution case, in brief, is that Jayanta Kr. Mukherjee (PW-12)

was posted as Officer-in-Charge of Bishnupur Police Station at the relevant

point of time. On 18.08.83 at about 0.02 hours when this witness came to

Jhanpur Keyatala Hat, he received written complaints of Anita Pal (PW-1)

alleging, inter-alia, that her niece Kumari Archana Pal, aged about 16 years

was kidnapped by the appellants. Kumari Archana Pal was the daughter of

her sister Pasani Pal (PW-2). Her niece could not be traced out since she

was kidnapped by appellant no.1 Asraf Sk. and further that as appellant no.1

Asraf Sk. was absconding and on the date of occurrence the said appellant

was seen loitering openly around their house. Her elder sister Pasani Pal

upon seeing the  appellant  no.1 became emotional  and started crying.  On

17.08.1983 early in the evening, when PW-2 was so crying loudly, appellant

no.1  Asraf  Sk.  alongwith  appellant  no.2  Rashid  Molla  Suddenly entered

their house and assaulted P.W. 2 for crying loudly. Seeing this, Shibcharan

Pal (hereinafter referred to as the ‘deceased’) being the father of P.Ws. 1

and 2 came out from his hut and protested against the acts of the appellants

in  assaulting  P.W.2.  At  this  the  appellants  threatened  that  they  would

murder every member of the family of the deceased. Apprehending danger,

P.W. 1 alongwith the deceased went to the house of one Suphal Pal, being a

local leader, to complain about the aforesaid incident. But said Suphal Pal

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was not available at his residence then. Thereafter they reported the incident

to  one Shah Alam Molla,  being  a  member  of  the local  Panchayat.  Shah

Alam Molla assured P.W. 1 and her father that necessary steps would be

taken on the next day. Thereafter they returned home at about 8 p.m. After

returning back home, the deceased went out  to the field to ease himself.

Immediately the witnesses saw the two appellants following the deceased

quickly. They became suspicious about the movement of the two appellants.

The  deceased  having  not  returned  home despite  passage  of  5/7  minutes

since  he  left  for  the  field,  P.W.  1  alongwith  P.W.2  Pasani  Pal  became

suspicious and they went out in search of their father.

As soon as they reached near the local hat (market) they noticed the

two appellants were running away quickly "by their side". Soon after they

noticed their father Shibcharan Pal, aged about 65/70 years was lying dead

on the steps of the tank on the southern side situated near the hat (market).

The legs of the deceased were lying submerged in  the water  of the  tank

while  upper  part  of  the  body was  lying  above  water  on  the  bank.  They

further  alleged  in  the  said  complaint  that  their  father  was  murdered  by

throttling and other methods. They further expressed their suspicion that at

about 8 p.m. appellants Asraf Sk., Rashid Molla and others had murdered

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their father by throttling and by torturing him and left the dead body on the

bank of the tank of Keyatala Market (hat) and fled away. This Complaint

was reduced into  writing by the scribe,  Niranjan Pal  (PW-9) and handed

over to P.W.14 when he came to the place of occurrence. Said complaint

was taken to the police Station and was registered as an F.I.R. under Section

302/34 I.P.C., against the two appellants at 3.30 a.m. on 18.8.1983. After

investigation Police submitted charge sheet against the two appellants and

one Basir Sk. (since acquitted).  The case was committed to the Court  of

Session, North 24, Parganas. On perusal of the materials on record learned

trial Court framed charges against the two appellants and another accused,

namely, Basir Sk., under Section 302/34 I.P.C., to which the appellants and

other accused pleaded not guilty. In course of the trial, 16 witnesses were

examined.  As  noted  above,  the  present  appellants  were  convicted  while

accused Basir Sk. was acquitted.  

Before  the  High  Court  the  stand  was  that  the  case  rests  on

circumstantial evidence and the circumstances do not warrant conclusion of

guilt of the accused. The High Court did not accept this plea and confirmed

the conviction.  

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3. In support of the appeal, learned counsel for the appellants submitted

that  the  trial  Court  and  the  High  Court  have  erred  in  holding  that  the

circumstances were sufficient to hold the appellants guilty.  

4. Learned counsel for the respondent-State on the other hand supported

the judgments of the trial Court and the High Court.  

5. 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

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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.

6. 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....”.

7. 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;

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(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.

8. 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.

9. 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

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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”.

10. 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.   

11. 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

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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.”

12. 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

(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

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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.  Rajaram

(2003 (8) SCC 180),  State of Haryana v. Jagbir Singh and Anr. (2003 (11)

SCC 261)  and Criminal  Appeal  No.180/2001 (Chatter  Singh and Ors.  v.

State of Haryana)  disposed of on 26th August, 2008.   

14. The  circumstances  which  were  highlighted  by  the  prosecution  to

substantiate the accusations read as follows:

“(1) Appellant  No.1  Asraf  Sk.  kidnapped  the  grand- daughter of the deceased and married her.

(II) In the early evening on the date of occurrence the mother  of  the  kidnapped  girl,  being  the  daughter  of  the deceased was crying loudly as her daughter was kidnapped by appellant  No.1  Asraf  Sk.  Hearing  the  cries  of  PW-1  Smt. Pasani  Pal,  appellants  had  the  audacity  to  trespass  into  the house of  the deceased and slap PW-2 Smt. Pasani  Pal.  They even threatened them that all the members of his family would be annihilated.

(III) An  hour  or  so  after  the  aforesaid  incident, deceased went  out  to the field  to ease himself.  At that  time, though may be intervened by few minutes, the appellants and another were found following the deceased.”

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15. The trial Court and the High Court held that the evidence of PWs 1

and 2 can be acted upon and, therefore, the circumstances were established.

The  circumstances  in  our  considered  opinion  do  not  present  a  complete

chain of  circumstances.   The evidence of  PWs 1 and 2 on which strong

reliance has been placed by the trial Court and the High Court  are full of

contradictions.  PW-1 stated that she had seen the actual assault. This was

her statement in court which is contrary to her statement recorded during

investigation.  In the First Information Report there was also no reference

that  PWs  1  and  2  had  seen  the  actual  occurrence.  Similarly  PW-1’s

statement in court is as follows:

“As my father did not return within 5/6 minutes, myself and my sister Pasani had been to the garden. Then the accused Asraf and Rashid Molla then started fleeing away after pushing the father on the ground. We then went to our father and found the legs in the water and upper part of the body on the bank of the pond. We noticed mark of strangulation of his throat and marks of ecchymosis in his hand. We picked up our father from that place. He was then dead.”

16. PW-2’s version is entirely different. Her statement in court was to the

following effect:

“As my father did not return within 5/7 minutes myself and my sister Anita then went out of our house in search of my father and to know what happened to him. We had been to tank side

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of  Kaytala  Hat,  then  accused  Rashid  &  Asraf  were  found fleeing  very  fast  by  our  side.  We  then  went  towards  the southern Ghat  of  the said  Keyatal  tank and found my father lying on the bank side facing downward.  

I did not tell I.O. that while I came near the hat pukar tank the accused persons were fleeing away by our side.”

17. Above  being  the  position,  this  is  certainly  not  a  case  where  the

prosecution  has  established  the  accusations.  The  accused  persons  are

entitled to acquittal, which we direct. They shall be released from custody

forthwith unless required to be in custody in any other case.

   ………………………………….J. (Dr. ARIJIT PASAYAT)

        ……. ……………………………J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, October 20, 2008

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