REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITON

CRIMINAL APPEAL NO. 320 OF 2007

Baldev Singh …Appellant

Versus

State of Haryana …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  Punjab  and  Haryana  High  Court  upholding  the  conviction  of  the

appellant for offences punishable under Sections 302 and 354 of the Indian

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Penal 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  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 ‘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

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 Ram

who was 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 Sheo

Ram with her salwar removed. One part of the salwar was around her neck

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and the other was stuffed to her mouth.  At about 2 pm in the night First

Information Report (in short the ‘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  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

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 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  evidence  as  projected  by

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prosecution through the evidence of Inder Raj (PW9) was not sufficient to

hold  the  appellant  guilty.   But  having  so  held,  the  trial  court  found  the

presence of injuries on the accused to be sufficient  to hold the appellant

guilty.  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  supported  the

judgment.

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

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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 be such as to

negate 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:  

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“(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;

(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.

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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

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:

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“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 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;

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(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.      

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 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  trial  court  held  that  the  accused  was  examined  on

24.3.1993 by the doctor PW 3 who found abrasions on the thighs and hip

joints of the accused, as the injuries must have been received in a scuffle.

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This circumstance found supported from the finding of 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 persons

corresponding with the injuries on the deceased.  The High Court noted as

follows:

“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 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  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 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 responsible for the commission of rape.  Even if

it is accepted that the chappals and the utensils were found in the fields of

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the appellant, the dead body was found by another place i.e. in the field of

Sheo Ram.   

16. Above being the position that the judgment of the trial court affirmed

by the High Court cannot be maintained and are set  aside. The appeal is

allowed.  The appellant who is in custody shall be released forthwith unless

required to be in custody in connection with any other case.

……………………………………J. (Dr. ARIJIT PASAYAT)

                                    ……………………………….……J.

(Dr. MUKUNDAKAM SHARMA) New Delhi: December 1, 2008

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