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CASE NO.: Appeal (crl.)  815-816 of 1996

PETITIONER: State of Rajasthan                                               

RESPONDENT: Vs. Raja Ram                                                         

DATE OF JUDGMENT: 13/08/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       The State of Rajasthan is in appeal questioning legality of  judgment of the High Court of Rajasthan at Jodhpur Bench, holding that  the respondent was innocent and was entitled to acquittal from the  charges levelled against him for alleged commission of offence  punishable under Section 302, Indian Penal Code, 1860 (for short IPC).   The accused was held to be guilty by the learned Additional Session  Judge, Hanumangarh who awarded a death sentence on finding the accused  guilty.  

Accusations which laid foundation of the prosecution case reveal  that information was given by Sahi Ram (PW-6) on 20.12.1989 at about  7.15 a.m. at the Sangaria Police Station to the effect that his younger  brother was responsible for homicidal death of 5 persons, that is, his  father, younger brother, the younger brother’s wife and their two  children.  The killings were on account of gunshots and murders were  committed on 19.12.1989.  On the basis of information lodged  investigations were undertaken and on completion thereof charge sheet  was filed stating that offences punishable under Section 302 IPC and  Section 27 of Indian Arms Act, 1959 (for short ’Arms Act’) were  committed, the appellant was described as the assailant.   In order to  further its version, 7 witnesses were examined.  The prosecution  version rests on circumstantial evidence. The accused examined himself  as DW-1 and placed on record materials to attack the credibility of  evidence tendered by PW-3 & 4; more particularly it was stated that  they were not favourably disposed towards him, and had falsely  implicated him. Accepting the version of Vinod Kumar (PW-3) and Nand  Ram (PW-4) before whom allegedly the accused made extra judicial  confession, the Trial Court found the accused guilty of offence  punishable under Section 302 IPC as noted above and awarded death  sentence in addition to the fine of Rs.5000.  However, it was found  that the accusations relating to Section 27 of the Arms Act were not  established.  As death sentence has been awarded, a reference was made  to the High Court under Section 366 of the Code of Criminal Procedure,  1973 (in short the ’Code’) for confirmation. An accused also filed an  appeal. In appeal as noted at the threshold, the High Court found the  evidence to be inadequate to fasten the guilt on the accused and,  therefore, prosecution version to be vulnerable.  The evidence of PW-3  and PW-4 which formed foundation of the Trial Court’s judgment did not  find acceptance by the High Court finding the evidence to be unreliable  and incogent.  

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The learned counsel for the appellant-State   in support of the  appeal submitted the approach of the High Court is erroneous.  There  was no infirmity in the evidence of PW-3 and PW-4 to warrant rejection  of their evidence.  They were related to both the accused and the  deceased and there is no reason as to why they would falsely implicate  the accused.  Conduct of the accused, which was found to be suspect by  the Trial Court, has been overlooked by the High Court while directing  acquittal.  The wearing apparels of the accused contained bloodstains  and since the accused did not explain as to how the blood stains  appeared on such apparels, that itself is a suspicious circumstance,  which the High Court overlooked.

The circumstances highlighted to fasten the guilt on the accused  are as follows:-

(1)     Extra judicial confession of the offence made by  the accused before the witnesses.

(2)     Immediately after the incident the accused was  seen coming from the side of  the dhani of the  deceased Maniram.  

(3)     The conduct of the accused immediately after the  incident.

(4)     Human blood being found on the clothes of the  accused

(5)     Recovery of pistol being got made by the accused.

        It is noted that circumstances 1, 2 and 3 related to the evidence  of PWs-3 & 4. The pistol which was allegedly recovered on being pointed  out by the accused was found to be not one from which bullets found on  the dead bodies were fired.

Learned counsel for the respondent-accused submitted that the  case rests on circumstantial evidence and the chain of circumstances  highlighted by the prosecution did not lead to the inevitable  conclusion that ruled out others and established that accused alone was  responsible for the crime.  It was further submitted that considering  the fact that the appeal is against an order of acquittal, scope for   interference is very limited.   The evidence of PW-3 & 4 has been  rightly discarded and there is no reason as to why the well-reasoned  judgment of the High Court should be interfered with.

There is no embargo on the appellate Court reviewing the evidence  upon which an order of acquittal is based.  Generally, the order of  acquittal shall not be interfered with because the presumption of  innocence of the accused is further strengthened by acquittal.  The  golden thread which runs through the web of administration of justice  in criminal cases is that if two views are possible on the evidence  adduced in the case, one pointing to the guilt of the accused and the  other to his innocence, the view which is favourable to the accused  should be adopted. The paramount consideration of the Court is to  ensure that miscarriage of justice is prevented. A miscarriage of  justice which may arise from acquittal of the guilty is no less than  from the conviction of an innocent. In a case where admissible evidence  is ignored, a duty is cast upon the appellate Court to re-appreciate  the evidence in a case where the accused has been acquitted, for the  purpose of ascertaining as to whether any of the accused committed any  offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh  (JT 2002 (3) SC 387)]. The principle to be followed by appellate Court  considering the appeal against the judgment of acquittal is to  interfere only when there are compelling and substantial reasons for

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doing so.  If the impugned judgment is clearly unreasonable, it is a  compelling reason for interference. These aspects were highlighted by  this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra  (1973 (3) SCC 193), Ramesh Babulal Doshi v. State of Gujarat (1996 (9)  SCC 225) and  Jaswant Singh v. State of Haryana (JT 2000 (4) SC 114).         Before analyzing factual aspects it may be stated that for a  crime to be proved it is not necessary that the crime must be seen to  have been committed and must, in all circumstances be proved by direct  ocular evidence by examining before the Court those persons who had  seen its commission. The offence can be proved by circumstantial  evidence also. The principal fact or factum probandum may be proved  indirectly by means of certain inferences drawn from factum probans,  that is, the evidentiary facts. To put it differently circumstantial  evidence is not direct to the point in issue but consists of evidence  of various other facts which are so closely associated with the fact in  issue that taken together they form a chain of circumstances from which  the existence of the principal fact can be legally inferred or  presumed.  

       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 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.

       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....".

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; (3)     the circumstances, taken cumulatively should

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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.

       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.

       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".

       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.     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 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."

       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 the this Court, before conviction  could be based on circumstantial evidence, must be fully established.

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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 compete 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.     

The case at hand has to be gauzed in the background of aforesaid  principles.  The evidence of PW-3 & 4 as noted above form the  foundation of the prosecution case.  It was noted by the High Court  that PW-4 was not in good terms with the accused and, in fact, a case  had been lodged by the accused against PW-4 a few months before the  incident.  

Confessions may be divided into two classes, i.e. judicial and  extra-judicial. Judicial confessions are those which are made before  Magistrate or Court in the course of judicial proceedings. Extra- judicial confessions are those which are made by the party elsewhere  than before a Magistrate or Court. Extra judicial confessions are  generally those made by a party to or before a private individual which  includes even a judicial officer in his private capacity. It also  includes a Magistrate who is not especially empowered to record  confessions under Section 164 of the Code or a Magistrate so empowered  but receiving the confession at a stage when Section 164 does not  apply. As to extra-judicial confessions, two questions arise: (i) were  they made voluntarily? And (ii) are they true? As the section enacts, a  confession made by an accused person is irrelevant in a criminal  proceedings, if the making of the confession appears to the Court to  have been caused by any inducement, threat or promise, (1) having  reference to the charge against the accused person, (2) proceeding from  a person in authority, and (3) sufficient, in the opinion of the Court  to give the accused person grounds which would appear to him reasonable  for supposing that by making it he would gain any advantage or avoid  any evil of a temporal nature in reference to the proceedings against  him. It follows that a confession would be voluntary if it is made by  the accused in a fit state of mind, and if it is not caused by any  inducement, threat or promise which has reference to the charge against  him, proceeding from a person in authority. It would not be  involuntary, if the inducement, (a) does not have reference to the  charge against the accused person, or (b) it does not proceed from a  person in authority; or (c) it is not sufficient, in the opinion of the  Court to give the accused person grounds which would appear to him  reasonable for supposing that, by making it, he would gain any  advantage or avoid any evil of a temporal nature in reference to the  proceedings against him. Whether or not the confession was voluntary  would depend upon the facts and circumstances of each case, judged in  the light of Section 24. The law is clear that a confession cannot be  used against an accused person unless the Court is satisfied that it  was voluntary and at that stage the question whether it is true or  false does not arise. If the facts and circumstances surrounding the  making of a confession appear to cast a doubt on the veracity or  voluntariness of the confession, the Court may refuse to act upon the

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confession, even if it is admissible in evidence One important  question, in regard to which the Court has to be satisfied with is,  whether when the accused made confession, he was a free man or his  movements were controlled by the police either by themselves or through  some other agency employed by them for the purpose of securing such a  confession. The question whether a confession is voluntary or not is  always a question of fact. All the factors and all the circumstances of  the case, including the important factors of the time given for  reflection, scope of the accused getting a feeling of threat,  inducement or promise, must be considered before deciding whether the  Court is satisfied that its opinion the impression caused by the  inducement, threat or promise, if any, has been fully removed. A free  and voluntary confession is deserving of highest credit, because it is  presumed to flow from the highest sense of guilt. [See R. v.  Warwickshall: (1783) Lesch 263)]. It is not to be conceived that a man  would be induced to make a free and voluntary confession of guilt, so  contrary to the feelings and principles of human nature, if the facts  confessed were not true. Deliberate and voluntary confessions of guilt,  if clearly proved, are among the most effectual proofs in law. An  involuntary confession is one which is not the result of the free will  of the maker of it. So where the statement is made as a result of the  harassment and continuous interrogation for several hours after the  person is treated as an offender and accused, such statement must be  regarded as involuntary. The inducement may take the form of a promise  or of threat, and often the inducement involves both promise and  threat, a promise of forgiveness if disclosure is made and threat of  prosecution if it is not. (See Woodroffe Evidence, 9th Edn. Page 284). A  promise is always attached to the confession, alternative while a  threat is always attached to the silence-alternative; thus, in the one  case the prisoner is measuring the net advantage of the promise, minus  the general undesirability of a false confession, as against the  present unsatisfactory situation; while in the other case he is  measuring the net advantages of the present satisfactory situation,  minus the general undesirability of the confession against the  threatened harm.  It must be borne in mind that every inducement,  threat or promise does not vitiate a confession. Since the object of  the rule is to exclude only those confessions which are testimonially  untrustworthy, the inducement, threat or promise must be such as is  calculated to lead to an untrue confession.  On the aforesaid analysis  the Court is to determine the absence or presence of inducement,  promise etc. or its sufficiency and how or in what measure it worked on  the mind of the accused.  If the inducement, promise or threat is  sufficient in the opinion of the Court, to give the accused person  grounds which would appear to him reasonable for supposing that by  making it he would gain any advantage or avoid any evil, it is enough  to exclude the confession.  The words ’appear to him’ in the last part  of the section refer to the mentality of the accused.

An extra-judicial confession, if voluntary and true and made in a  fit state of mind, can be relied upon by the Court.  The confession  will have to be proved like any other fact. The value of the evidence  as to confession, like any other evidence, depends upon the veracity of  the witness to whom it has been made.  The value of the evidence as to  the confession depends on the reliability of the witness who gives the  evidence. It is not open to any Court to start with a presumption that  extra-judicial confession is a weak type of evidence. It would depend  on the nature of the circumstances, the time when the confession was  made and the credibility of the witnesses who speak to such a  confession.  Such a confession can be relied upon and conviction can be  founded thereon if the evidence about the confession comes from the  mouth of witnesses who appear to be unbiased, not even remotely  inimical to the accused, and in respect of whom nothing is brought out  which may tend to indicate that he may have a motive for attributing an  untruthful statement to the accused, the words spoken to by the witness  are clear, unambiguous and unmistakably convey that the accused is the

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perpetrator of the crime and nothing is omitted by the witness which  may militate against it.  After subjecting the evidence of the witness  to a rigorous test on the touchstone of credibility, the extra-judicial  confession can be accepted and can be the basis of a conviction if it  passes the test of credibility.         If the evidence relating to extra judicial confession is found  credible after being tested on the touchstone of credibility and  acceptability, it can solely form the basis of conviction.  The  requirement of corroboration as rightly submitted by learned counsel  for the respondent-accused, is a matter of prudence and not a  invariable rule of law.  It is improbable, as rightly held by the High  Court that the accused would repose confidence on a person who is  enemically disposed towards him, and confess his guilt.  Similarly, PW- 3 is a close relative of PW-4  and as records reveal, a person of  doubtful antecedents being a history sheeter.  Though that alone cannot  be the ground to discard his evidence, the totality of circumstances  cast an indelible shadow of doubt on his evidence.  It is to be noted  that accused examined himself as DW-1. Though it was the prosecution  version that there was also extra judicial confession before informant  Sahi Ram (PW-6) that was disbelieved by both the Trial Court and the  High Court in view of the fact that he stated differently from what was  allegedly stated by him during investigation.  He disowned that the  accused made any confessional statement before him.  Though the  prosecution during cross-examination of the accused (DW-1) suggested  that he had made extra judicial confession before PW-6, significantly  not even such a suggestion was given in respect of PW-3 & 4.

 Coming to the bloodstains on the cloth which were allegedly  seized on being pointed out by the accused, the forensic laboratory  report indicated that there were blots of human blood on the shirts and  trousers of the accused.  There was no effort to find out the blood  group.  In fact, the High Court noted this position and observed that  presence of PW-4 at the time of recovery is doubtful as he has been  found to be an unreliable witness.  It was observed that even if it is  accepted that there was existence of blood, this circumstance is not  such from which it can be found that the accused was perpetrator of the  crime.  In the aforesaid report (Ex.61) it was clearly stated that the  blood group of blood found on the clothes could not be determined.   Neither the blood group of the deceased nor that of the accused was  determined.  In that background, the High Court held that the  possibility of the blood being that of the accused cannot be ruled out.   In view of the findings recorded by the High Court about the non- acceptability by evidence relating to alleged extra judicial  confession, the conclusions of the High Court cannot be said to be one  which are unsupportable.  We decline to interfere in the appeals, and  the same are dismissed.