Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.836 OF 2005

Aftab Ahmad Anasari ... Appellant

Versus

State of Uttaranchal        ...Respondent

J U D G M E N T

J.M. PANCHAL, J.

1. The  appellant  and  one  Mumtaz  were  prosecuted  for  

commission of rape and murder of Yasmeen aged five years  

daughter of Nayeem Ahmad and for causing disappearance  

of  evidence  of  those  offences.   The  learned  Additional  

District and Sessions Judge, First FTC Court, Nainital, by  

judgment dated January 7, 2004, rendered in Sessions Trial  

No.252 of 1998, convicted the appellant and Mumtaz under  

Sections 302, 376 and 201 of Indian Penal Code (IPC) and

imposed penalty of death sentence for commission of offence  

punishable under Section 302 IPC as well as R.I. for life for  

commission of  offence  punishable  under  Section  376 IPC  

and a fine of Rs.10,000/- in default R.I. for one year and  

R.I. for seven years and a fine of Rs.5,000/- in default R.I.  

for  one  year  for  commission  of  offence  punishable  under  

Section 201 IPC.

2. Feeling aggrieved, the appellant and Mumtaz preferred  

Criminal  Appeal  No.  36 of  2004 whereas Reference made  

under Section 366 of the Code of Criminal Procedure by the  

learned Additional Sessions Judge in view of death sentence  

passed against both the accused was registered as Criminal  

Reference 1 of 2004 before the High Court of Uttaranchal at  

Nainital.   The  Division  Bench  of  the  High  Court,  by  

judgment  dated  December  17,  2004,  has  rejected  the  

Reference  and  partly  allowed  the  appeal  by  acquitting  

accused  Mumtaz  but  affirmed  the  conviction  of  the  

appellant under Sections 302, 376 and 201 IPC.  The death  

penalty awarded to the appellant for commission of offence  

punishable  under  Section  302  IPC  is  modified  and  the  

appellant is sentenced to R.I. for life for commission of the  

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offence punishable under Section 302 IPC.  The High Court  

has further maintained sentence imposed on the appellant  

under Sections 376 and 201 IPC.  The confirmation of the  

conviction  of  the  appellant  under  Sections  302,  376  and  

201  IPC  by  the  High  Court  and  imposition  of  different  

punishments for those offences, has given rise to the instant  

Appeal by Special Leave.

3. Mr.  Nayeem  Ahmad  is  resident  at  Mundia  Pistor  

Village, Bajpur, District Udham Singh Nagar, Uttaranchal.  

His  daughter  Yasmeen  aged  five  years  having  fair  

complexion and round face, wearing frock, underwear and  

sleepers was playing near his house at about 5.00 p.m. in  

the evening of February 5, 1998.  It was noticed that she  

was  missing  from the  place  where  she  was  playing  and,  

therefore,  Nayeem  Ahmad  made  frantic  search  about  

Yasmeen at the places of all his relatives but she could not  

be traced.  As search made by him did not yield any result,  

he  filed a  missing report  on February 6,  1998 at  Bajpur  

Police Station mentioning, inter alia, that his daughter had  

disappeared  while  playing  near  his  house  and,  therefore,  

steps  be  taken  to  trace  her  out.   On  February  8,  1998,  

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Report (Exhibit Ka.2) was lodged at Bajpur Police Station by  

Shamim  Ahmad  who  is  real  brother  of  Nayeem  Ahmad  

stating,  inter  alia,  that  Yasmeen  aged  about  five  years  

daughter of his elder brother Nayeem Ahmad while playing  

near the house of Nayeem Ahmad had disappeared at about  

5.00  p.m.  in  the  evening  of  February  5,  1998  for  which  

Nayeem Ahmad had lodged a missing report at the Police  

Station, but at about 6.00 a.m. on February 8, 1998, her  

dead body was found lying on the public way in front of the  

house of  Haji  Khursheed, son of  Bashir  Ahmad of  village  

Bajpur and, therefore, legal action be taken.  On receiving  

this  information,  concerned  police  personnel  reached  the  

place  where  dead  body  of  the  deceased  was  lying.   The  

inquest  on the  dead  body of  the  deceased was  held  and  

necessary  arrangements  were  made  for  sending the  dead  

body  for  post  mortem  examination.   The  post  mortem  

examination  was  carried  out  on  February  8,  1998.   The  

examination  revealed  that  the  deceased  was  subjected to  

rape and thereafter strangulated.  On February 9, 1998, the  

Investigating Officer, on the basis of the information given  

by the informer, arrested both the accused persons under  

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Sections  302,  376  and  201  IPC.   While  in  custody,  the  

appellant and Mumtaz made disclosure statements to the  

Investigating  Officer  pursuant  to  which  the  appellant  

discovered  one  frock  with  blood  marks,  one  white  cotton  

underwear with black stripes having blood stains and one  

bed sheet of light green colour with plenty of blood marks  

from  the  house  of  sister  of  the  appellant.   The  articles  

discovered  were  seized  under  a  panchnama  and  sent  to  

forensic science laboratory for analysis.  The Investigating  

Officer recorded the statement of those persons who were  

found  to  be  conversant  with  the  facts  of  the  case.   On  

receipt  of  report  from  the  analyst  and  on  completion  of  

investigation,  the  appellant  and  Mumtaz  were  charge-

sheeted in the Court  of  learned Judicial  Magistrate,  First  

Class for commission of offences punishable under Sections  

302, 376 and 201 IPC.

The offences punishable under Sections 302 and  

376  IPC  are  exclusively  triable  by  a  Court  of  Sessions.  

Therefore, the case was committed to the Court of learned  

Additional  District  and Sessions  Judge,  Nainital  for  trial.  

The  learned  Judge  framed necessary  charges  against  the  

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appellant  and  Mumtaz  for  commission  of  offences  

punishable under Section 302, 376 and 201 IPC.  The same  

were read over to them.  They pleaded not guilty to the same  

and claimed to be tried.  Therefore, prosecution examined  

seven  witnesses  and  produced  documentary  evidence  to  

prove  its  case  against  the  appellant  and  Mumtaz.   After  

recording of evidence of prosecution witnesses was over, the  

learned Judge explained to the appellant and Mumtaz the  

circumstances  appearing  against  them in the  evidence  of  

prosecution witnesses and recorded their further statement  

as  required  by  Section  313  of  the  Code  of  Criminal  

Procedure, 1973.  In the further statements, the appellant  

and Mumtaz pleaded ignorance in respect of certain facts  

whereas in relation to some other facts their claim was that  

they were false.  The appellant and Mumtaz had expressed  

desire to examine defence witnesses which was granted by  

the  learned  Judge.   The  appellant,  therefore,  examined  

DW1, Ms. Bilkis and DW2, Lakhbinder Singh alias Lakha in  

defence.   The  learned  Judge  noticed  that  the  case  was  

entirely resting upon circumstantial evidence.  After holding  

that the deceased died a homicidal death, the learned Judge  

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appreciated the evidence and held that four circumstances,  

namely,  that  (1)  both  the  accused  were  seen  by  PW-3,  

Naseed Ahmad, at about 4.30 a.m. on 8.2.1998 fleeing away  

from  near  the  place  where  the  dead  body  of  deceased  

Yasmeen was found after some time; (2) on the disclosure  

statement made by the appellant, blood stained frock and  

underwear  of  the  deceased  and  blood  stained  bed  sheet  

were recovered; (3) underwears of both the accused, seized,  

were stained with human blood and semen; and (4) extra-

judicial confession was made by the appellant before PW-5,  

Anand Swaroop, are firmly established, to bring home guilt  

of the accused under Sections 302, 376 and 201 IPC.   The  

learned  Judge  noticed  that  the  chain  of  circumstances  

established was complete,  cumulative effect  of  which was  

indicating that in all human probability, the offences were  

committed by the appellant and Mumtaz and by none other.  

In view of abovementioned conclusions, the learned Judge  

convicted  the  appellant  and  Mumtaz  under  Section  302,  

376 and 201 IPC.  Thereafter, the learned Judge heard the  

appellant  and Mumtaz  on the question of  sentence to be  

imposed  on  them  for  commission  of  abovementioned  

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offences.  The learned Judge noticed that this was the rarest  

of  rare  case  falling  within  the  purview  of  guidelines  laid  

down by this Court in Maulai & Anr. Vs. State of M.P.  AIR  

2000  SC  177  and  imposed  death  penalty  on  both  the  

accused for commission of offence punishable under Section  

302 IPC.  The learned Judge further imposed punishment of  

R.I. for life and a fine of Rs.10,000/- and in default R.I. for  

one  year  for  commission  of  offence  punishable  under  

Section  376  IPC.   The  learned  Judge  further  imposed  

sentence of R.I. for seven years and a fine of Rs.5,000/- and  

in  default  R.I.  for  one  year  for  commission  of  offence  

punishable  under  Section  201  IPC  by  judgment  dated  

January 7, 2004.  The imposition of death sentence resulted  

into Criminal Reference under Section 366 of the Code of  

Criminal Procedure, 1973.  The appellant and Mumtaz also  

being aggrieved by the judgment of the Trial Court preferred  

Criminal  Appeal  No.36  of  2004  before  the  High  Court  of  

Uttaranchal  at  Nainital.   The  reference  and  appeal  were  

heard  together.   The  High  Court  on  re-appreciation  of  

evidence came to the conclusion that three circumstances  

were  proved  by  the  prosecution,  namely,  (1)  both  the  

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appellants were seen by PW3, Naseem Ahmad at about 4.30  

a.m. on February 8, 1998 fleeing from near the place where  

the dead body of the deceased was found; (2) blood stained  

frock and underwear of the deceased and blood stained bed  

sheet  were  recovered  pursuant  to  voluntary  disclosure  

statement  made  by  the  appellant;  and  (3)  extra  judicial  

confession was made by the appellant before PW-5, Anand  

Swaroop.  The Division Bench by judgment dated December  

17, 2004 has partly allowed the appeal.  The High Court has  

set  aside  the  conviction of  Mumtaz recorded by the Trial  

Court  but  confirmed  the  conviction  of  the  appellant  

recorded by the Trial Court under Sections 302, 376 and  

201 IPC.  The High Court has further modified the sentence  

of death imposed on the appellant for commission of offence  

punishable under Section 302 IPC and awarded R.I. for life  

whereas  sentences  awarded  for  commission  of  offences  

punishable  under  Sections  376  and  201  have  been  

confirmed.

4. This  Court  has  heard  the  learned  counsel  for  the  

parties and considered the documents forming part of the  

appeal.  It is relevant to notice that the prosecution has not  

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claimed  that  the  rape  and  murder  of  the  deceased  was  

witnessed by anyone and no direct evidence regarding the  

same is adduced before the court.  Admittedly, the whole  

case against the appellant rests on circumstantial evidence.  

The law relating to circumstantial evidence is well settled.  

In dealing with circumstantial  evidence, there is always a  

danger that conjecture or suspicion lingering on mind may  

take place of proof.  Suspicion howsoever strong cannot be  

allowed to take place of proof and, therefore, the Court has  

to  judge  watchfully  and ensure  that  the  conjectures  and  

suspicions do not take place of legal proof.  However, it is no  

derogation  of  evidence  to  say  that  it  is  circumstantial.  

Human agency may be faulty in expressing picturization of  

actual  incident  but  the  circumstances  cannot  fail.  

Therefore, many a times, it is aptly said that “men may tell  

lies, but circumstances do not”.  In cases where evidence is  

of a circumstantial  nature,  the circumstances from which  

the conclusion of guilt is to be drawn should, in the first  

instance, be fully established.   Each fact must be proved  

individually and only thereafter the Court should consider  

the total cumulative effect of all the proved facts, each one  

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of  which  reinforces  the  conclusion  of  the  guilt.   If  the  

combined effect of all the facts taken together is conclusive  

in  establishing  the  guilt  of  the  accused,  the  conviction  

would be justified even though it may be that one or more of  

these facts, by itself/themselves, is/are not decisive.  The  

circumstances proved should be such as to exclude every  

hypothesis except the one sought to be proved.  But this  

does not mean that before the prosecution case succeeds in  

a  case  of  circumstantial  evidence  alone,  it  must  exclude  

each  and  every  hypothesis  suggested  by  the  accused,  

howsoever extravagant and fanciful it might be.  There must  

be a chain of evidence so far complete as not to leave any  

reasonable  ground  for  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.  Where the various links in a chain  

are  in  themselves  complete,  then  a  false  plea  or  a  false  

defence may be called into aid only to lend assurance to the  

Court.  If the circumstances proved are consistent with the  

innocence of the accused, then the accused is entitled to the  

benefit  of  doubt.   However,  in  applying  this  principle,  

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distinction must be made between facts called primary or  

basic on the one hand and inference of facts to be drawn  

from them on the other. In regard to the proof of basic or  

primary  facts,  the  Court  has  to  judge  the  evidence  and  

decide whether that evidence proves a particular fact or not  

and if that fact is proved, the question arises whether that  

fact leads to the inference of guilt of the accused person or  

not. In dealing with this aspect of the problem, the doctrine  

of  benefit  of  doubt  applies.  Although there  should  be  no  

missing links in the case, yet it is not essential that every  

one of the links must appear on the surface of the evidence  

adduced and some of these links may have to be inferred  

from  the  proved  facts.  In  drawing  these  inferences  or  

presumptions, the Court must have regard to the common  

course of natural events, and to human conduct and their  

relations to the facts of the particular case.

5. Having noticed the relevant principles governing a case  

based on circumstantial  evidence,  this  Court  proposes  to  

consider  the  question  whether  the  case  against  the  

appellant is proved.  The appellant, at the time of incident  

was in his early 20’s.  He is resident of village Patia Nagla,  

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P.S. Gatpur, Tehsil Thakurdwara, District Muradabad.  His  

sister  Ms.  Bilkis,  DW-1,  was  married  to  Kabir  Ahmad of  

village  Bajpur  where  the  first  informant  is  residing.   The  

appellant used to visit and stay at the house of his sister.  It  

may be mentioned that the Trial Court was of the view that  

four  circumstances  mentioned  above  were  proved  by  the  

prosecution.   

6. The fact that deceased Yasmeen was subjected to rape  

and died a homicidal death is not disputed before this Court  

by  the  appellant.   This  fact  stands  amply  proved  by  the  

reliable testimony of Dr. J.S. Rawat, who performed autopsy  

on  the  dead  body  of  the  deceased  and  contents  of  post  

mortem produced at Exhibit Ka.5.

7. Similarly  the fact  that naked dead body of  deceased  

Yasmeen with injuries was found lying at about 6.00 a.m.  

on  8.2.1998  in  front  of  the  house  of  Haji  Khursheed  is  

amply borne out from the trustworthy testimony of PW-1,  

Nayeem  Ahmad,  PW-2,  Shamim  Ahmad,  inquest  report  

Exhibit Ka.4 etc.

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8. According to the Sessions Court and the High Court,  

one  of  the  incriminating  circumstances  proved  by  the  

prosecution is  that  witness Naseem Ahmad had seen the  

appellant and another fleeing from near the place where the  

dead body of the deceased was found lying at about 4.30 am  

on February 8,1998.  The learned counsel for the appellant  

submitted  that  the  only  witness  produced  by  the  

prosecution  to  prove  this  circumstance  is  PW-3,  Naseem  

Ahmad but the said witness does not speak of any source of  

light  and  his  silence  of  not  telling  this  fact  to  the  

Investigating Officer at the time of holding of inquest is most  

unnatural  and,  therefore,  the  High  Court  had  erred  in  

placing  reliance  on  his  evidence.   Elaborating  this  

argument, it was submitted that the statement of Naseem  

Ahmad  under  Section  161  was  recorded  on  February  9,  

1998  after  the  arrest  of  the  appellant  and  Mumtaz  was  

effected and he does not say that he had seen the accused  

carrying dead body or dropping any object in front of the  

house of Haji Khursheed.  It was pointed out that he is a  

close relative of the complainant who asserted that before  

the report of recovery of dead body was lodged by Shamim,  

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he  had  told  Nayeem and  Shamim that  he  had  seen  the  

appellant and Mumtaz running away from near the place  

where the dead body was found lying but no such fact was  

stated in the report made by witness Shamim Ahmad and,  

therefore, his claim that he had seen the appellant fleeing  

from near the place where the dead body was found lying  

should have been disbelieved.  What was stressed was that  

according to the said witness, he and Jakir were going to  

jungle for  answering  the  call  of  nature  and  seen  the  

appellant entering into the house of his sister but for the  

same  reason,  the  appellant  could  have  been  out  of  his  

sister’s house and, therefore, the appellant entering into the  

house  of  his  sister  could  not  have  been  treated  as  an  

incriminating  circumstance.   What  was claimed was that  

neither this circumstance sought to be relied upon by the  

prosecution stands proved beyond doubt by witness Naseem  

Ahmad  nor  the  same  can  be  characterised  as  an  

incriminating circumstance and, therefore, the same should  

be  ignored  while  appreciating  the  evidence  against  the  

appellant.

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9. So far as the circumstance, namely, that the appellant  

and Mumtaz  were  seen fleeing away from near  the  place  

where the dead body of the deceased was lying is concerned,  

this Court finds that the prosecution has relied upon the  

testimony of PW2, Naseem Ahmad.  After mentioning that  

younger daughter of his brother Nayeem had disappeared  

on February 5, 1998, the witness has mentioned that in the  

morning of February 8, 1998 at about 4.30 a.m. he himself  

and one  Jakir  were  going  towards  jungle and when they  

reached near the house of Haji Khursheed, they had seen  

the appellant and Mumtaz running from near the house of  

Haji  Khursheed and entering into the house of Kabir.   It  

may be stated that Kabir is brother-in-law of the appellant,  

i.e.,  husband of Ms. Bilkis who is sister of the appellant.  

The  witness  has  claimed  in  his  evidence  that  he  was  

knowing Aftab,  i.e.,  the appellant and Mumtaz before the  

incident.  According to this witness, when they came back  

from the  jungle at that time, they learnt that on the same  

day, dead body of daughter of Nayeem Ahmad was found  

near the house of Haji Khursheed.

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This  witness  was  subjected  to  searching  cross-

examination by the defence.  In his cross examination, the  

witness stated that his house was located after two houses  

from the house of Haji Khursheed. According to him Jakir  

who is his brother-in-law had come to his house from village  

Mudia Kalan.  During this cross-examination, the witness  

also explained that Jakir was real brother-in-law of Nayeem  

and,  thus,  deceased  was  niece  of  Jakir.   What  was  

maintained by the said witness was that both of them had  

proceeded to  jungle at  about 4.30 a.m. for answering the  

call of nature and had seen the appellant and Mumtaz while  

they were going to  jungle.   According to this witness,  the  

Investigating Officer had recorded his statement on the next  

day of recovery of the dead body.  It was further stated by  

this witness in his cross-examination that the deceased was  

missing since February 5, 1998 whereas her dead body was  

found  on  February  8,  1998.   The  witness  has  further  

mentioned that by the time they had come back from the  

jungle,  the  dead  body  had  already  been  found  and  one  

missing report was written on February 6, 1998 which was  

scribed  and  lodged  by  Shamim after  the  dead  body  was  

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found.  It was stated by him that he was not present at the  

time  of  writing  of  the  report  by  Shamim  but  before  the  

report was written, Shamim and Nayeem were told by him  

and Jakir  that  they had seen the appellant  and Mumtaz  

running away from near the place where the dead body was  

lying.   The  witness  further  mentioned  in  his  cross-

examination  that  the  report  was  scribed  after  arrival  of  

sniffer  dog called by the police.   It  was explained by the  

witness that sniffer dog had been brought at 7.30 a.m.  The  

suggestion  made  by  the  defence  that  he  had  not  seen  

anyone running away from near the place where the dead  

body  was  lying  and  was  deposing  falsely  on  account  of  

relationship with Nayeem was emphatically denied by him.

10. A fair reading of the evidence tendered by this witness  

makes it evident that though he is relative of Nayeem, he  

has stated the facts seen by him in a simple manner and  

without  any  noticeable  embellishments.   If  this  witness  

wanted to implicate the appellant falsely in the case because  

of  his  relationship  with  the  first  informant,  nothing  

prevented him from stating before the police and the court  

that he had seen the appellant carrying the dead body of the  

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deceased  and throwing  the  same  near  the  house  of  Haji  

Khursheed.   

11. However, this Court finds that he has not made any  

false claim/exaggeration in his testimony at all and stated  

that he had seen the appellant fleeing from near the place  

where the dead body was lying.  The reason as to why in the  

early morning he was out of  his house is stated by him,  

which this Court finds to be most natural.  It could not be  

even remotely suggested by the defence that a constructed  

latrine was available in the house of witness Naseem Ahmad  

and, therefore, it was not necessary for him to move out of  

his house in the early morning of February 8, 1998 to go to  

jungle for  answering  call  of  nature.   What  is  relevant  to  

notice is that at the time when this witness had seen the  

appellant running away from near the place where the dead  

body was found, he had not learnt that the dead body was  

already  found.   Further,  his  house  is  located  after  two  

houses from the house of Haji Khursheed and the house of  

Ms. Bilkis, who is sister of the appellant and with whom the  

appellant was residing at the relevant point of time, is quite  

near to the house of Haji Khursheed.  Therefore, the claim  

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made  by  the  witness  that  he  had  seen  the  appellant  

hurriedly entering the house of his sister sounds probable.  

No major contradiction and/or omission with regard to his  

earlier statement recorded before the police nor any other  

material  could  be  brought  on  record  by  the  defence  to  

impeach his  credibility.   Merely because Shamim did not  

refer to the fact that he was told by Naseem Ahmad that  

Naseem Ahmad had seen the appellant running away from  

near the place where the dead body was lying in his report  

to the police, cannot be a ground to disbelieve this witness.  

The learned Judge of the Trial Court who had advantage of  

observing demeanour of this witness has found the witness  

to be truthful.  The assertion made by the witness that the  

appellant  and  Mumtaz  were  known to  him could  not  be  

disputed  by  the  defence  at  all.   It  was  claimed  by  this  

witness  in  terms  before  the  Court  that  he  had  seen  the  

appellant running away from near the place where the dead  

body was lying.  When it was stated by the appellant that he  

had seen the appellant running away from near the place  

where the dead body was lying, it  was for the defence to  

suggest that in the early morning of February 8, 1998, no  

20

source of light was available and, therefore,  he could not  

have seen the appellant so running away.  However,  this  

Court finds that even remotely it was not suggested to the  

witness that there was no source of light and, therefore, he  

could not have seen the appellant running away from near  

the place where the dead body was lying.  The plea that this  

witness maintained silence at the time when the inquest on  

the dead body of the deceased was held and did not tell the  

Investigating Officer that he had seen the appellant running  

away from near the place where the dead body was lying  

would indicate that he had not seen the appellant running  

away, is merely stated to be rejected.  The occasion for this  

witness to tell the Investigating Officer that he had seen the  

appellant running away from near the place where the dead  

body  was  lying  would  arise  only  when  the  Investigating  

Officer was to record his statement under Section 161.  The  

basic  purpose  of  holding  inquest  on the  dead body is  to  

ascertain prima facie the nature of death and to find out  

whether there are injuries on the dead body or not.  The  

inquest punchnama cannot be treated as statement of the  

witness recorded under Section 161 of the Code of Criminal  

21

Procedure wherein he is supposed to narrate the facts seen  

by  him.   Therefore,  it  is  not  true  to  say  that  he  had  

maintained silence and had not told the Investigating Officer  

at the time of holding of the inquest that he had seen the  

appellant running away from near the place where the dead  

body was lying.  The so called silence on the part of this  

witness cannot be considered to be unnatural at all nor the  

same makes this testimony doubtful in any manner.  It is  

true that the appellant who was staying in the house of his  

sister  cannot  be  said  to  have  committed  any  unnatural  

conduct by entering into the house of his sister.  However, it  

is not the case of witness Naseem Ahmad that he had seen  

the appellant calmly entering into the house of his sister.  

What is mentioned by the witness is that he had seen the  

appellant running away from near the place where the dead  

body was found and hurriedly entering house of his sister.  

The ‘running away’  part  attributed to the appellant could  

not be explained by him.  In his further statement, it could  

not  be  explained  by  the  appellant  as  to  what  made  him  

running away from near the place where the dead body was  

found and hurriedly entering into the house of his sister.  

22

On reappraisal  of  the evidence of this witness,  this Court  

finds  that  neither  the  Trial  Court  nor  the  High  Court  

committed any error in placing reliance on the testimony of  

this witness for coming to the conclusion that one of the  

incriminating  circumstances,  namely,  that  the  appellant  

was found fleeing from near the place where the dead body  

was found lying was satisfactorily proved.

12. Another circumstance sought to be relied upon by the  

prosecution  is  that  the  appellant  had  made  voluntary  

disclosure  statement  pursuant  to  which  blood  stained  

clothes  of  the  deceased  were  discovered.   The  disclosure  

statement was made by the appellant in presence of PW4,  

Rais  Ahmad.   To  prove  the  recovery  of  clothes  of  the  

deceased, the prosecution has relied upon the testimony of  

two witnesses, namely, PW4, Rais Ahmad and PW7, Praveen  

Kumar Tyagi, the Investigating Officer.  PW4, Rais Ahmad  

has stated  that  on February 8,  1998 Police  had come to  

village Bajpur at about 3.30 p.m. and they had brought with  

them the appellant and Mumtaz.  According to this witness,  

he and Lakhvinder Singh were standing at the place where  

the appellant was brought by the police.  It is mentioned by  

23

the  witness  that  police  had  called  him  and  Lakhvinder  

Singh and asked them to accompany them.  What is stated  

by the witness is that the appellant and Mumtaz led them to  

the house of Kabir and the appellant took out one sleeveless  

frock,  one  underwear  and  one  green  coloured  bed  sheet  

from the foodgrains room of the house of Kabir.  The witness  

further stated that the abovementioned articles were kept  

hidden under the leaves and after taking out those articles,  

the  appellant  had  told  that  these  were  the  clothes  of  

Yasmeen which he had concealed.  It was further stated by  

the  witness  that  seizure  memo  was  prepared  by  the  

Investigating  Officer  on  the  spot  and  his  signature  was  

obtained thereon after it was read over to him.  The witness  

identified his signature on the memo (Exhibit Ka.3).  In his  

cross-examination, the witness stated that Shamim who is  

his  elder  brother  was  brother-in-law  of  the  complainant.  

According to this witness, the appellant used to live in the  

house of his sister.   What was mentioned by the witness  

was that Shabnam, daughter of sister of the appellant, was  

of the age group of Yasmeen and he was not remembering  

correctly whether Kabir, i.e., brother-in-law of the appellant  

24

was  living  with  his  family  in  the  house  from  which  the  

appellant had taken out the clothes of the deceased.  It was  

mentioned by the witness that the sniffer dog had first smelt  

the dead body and then the said dog had entered into house  

of Kabir and picked up the appellant.  It was further stated  

by the witness that the dog did not pick up Mumtaz and  

after the smelling by sniffer dog, the police had arrested the  

appellant and Mumtaz in his presence.  What is testified by  

the witness is that many persons had gone up to the police  

station and he had also gone to the police station where his  

signatures  were  obtained  on  Exhibit  Ka.3  at  about  4.00  

p.m.  The suggestion made to the witness by the defence  

that no clothes were recovered in his presence and that he  

was deposing falsely was emphatically denied by him.

13. The testimony of  Investigating Officer makes it  more  

than  clear  that  after  arrest,  the  appellant  had  made  

disclosure  statement  and  willingness  to  show  the  place  

where the clothes of the deceased were concealed by him.  

This  fact  is  also  mentioned  in  Exhibit  Ka.3  which  was  

prepared  contemporaneously.   According  to  the  

Investigating Officer, he had made efforts to summon local  

25

witnesses from Akari  Pistor but none had agreed to be a  

witness and, therefore, Rais Ahmad and Lakhvinder Singh  

were summoned to be panch witnesses on way to the place  

to be pointed out by the appellant where he had concealed  

the clothes of the deceased.  According to this witness, the  

appellant and Mumtaz led the police party and the appellant  

took out clothes of the deceased, i.e.,  blood stained frock  

and underwear as well as one bed sheet from Kuria meant  

for  storing  foodgrains.   The  witness  further  stated  that  

clothes  of  the  deceased and bed sheets  were  kept  in the  

western corner of the room.  The witness also informed the  

Court that underwears of both the accused were seized and  

they  appeared to  be  stained  with  semen at  some places.  

The  argument  that  witness  Rais  Ahmad  has  not  stated  

about  the  disclosure  statement  at  all  and,  therefore,  

discovery  of  the  clothes  of  the  deceased  should  be  

disbelieved  cannot  be  accepted.   As  explained  by  the  

Investigating Officer, the appellant and Mumtaz had made  

disclosure statement when they were at the police station.  

The  said  fact  is  mentioned  in  the  document  prepared  

contemporaneously.   As  explained  by  the  Investigating  

26

Officer,  he had made efforts to summon two independent  

witnesses  to  act  as  panchas  but  none  had  shown  

willingness  to  do  so  and,  therefore,  he  had requisitioned  

services of Rais Ahmad and another on way to the house of  

sister  of  the  appellant  from  where  the  clothes  of  the  

deceased were recovered.  The contention that that part of  

the disclosure statement showing that recovered frock and  

underwear were of the deceased and the bed sheet was one  

over which rape was committed cannot be read in evidence  

has no substance.  In the leading case of Pulukuri Kottaya  

&  Ors. Vs.  Emperor AIR  1947  PC  67  what  would  be  

admissible in a disclosure statement has been explained by  

the Privy Council giving illustration as under :  

“The  statements  to  which  exception  is  taken in this case are first a statement by  accused No.6 which he made to the police  sub-Inspector  and  which  was  reduced  into writing, and is Exhibit “P.”  It is in  these terms :

‘The mediatornama written at 9 a.m.  on 12.1.1945, in front of Maddineni  Verrayya’s  choultry  and  in  the  presence  of  the  undersigned  mediators.

Statement  made  by  the  accused  Inala  Sydayya  on  being  arrested.  About  14 days  ago,  I  Kotayya and  

27

people  of  my  party  lay  in  wait  for  Sivayya and others at about sunset  time at the corner of Pulipad tank.  We,  all  beat  Beddupati  China  Sivayya and Subayya, to death.  The  remaining  persons,  Pullayya,  Kotayya  and  Narayana  ran  away.  Dondapati Ramayya who was in our  party received blows on his hands.  He had a spear in his hands.   He  gave it to me then.  I hid it and my  stick in  the  rick of  Venkatanarasu  in  the  village.   I  will  show  if  you  come.   We  did  all  this  at  the  instigation of Pulukuri Kotayya.’

(Signed) Potla China mattayya.

( “ ) Kotta Krishnayya.

12th January, 1945.     (Sgd.) G. Bapaiah,               Sub-Inspector of Police.

The whole of that statement except  the  passage  “I  hid  it  (a  spear)  and  my  stick in the rick of Venkatanarasu in the  village.   I  will  show  if  you  come”  is  inadmissible.   In  the  evidence  of  the  witness Potla China Mattayya proving the  document the statement that accused 6  said “I Mattayya and others went to the  corner  of  the  tank-land.   We  killed  Sivayya and Subayya” must be omitted.

A  confession  of  accused  3  was  deposed to  by  the  police  Sub-Inspector,  who said that accused 3 said to him :

‘I  stabbed  Sivayya  with  a  spear,  I  hid the spear in a yard in my village.  I will show you the place.”

The first sentence must be omitted.  This  was followed by a Mediatornama, Ex.Q.I,  

28

which  is  unobjectionable  except  for  a  sentence in the middle,  

‘He said that it was with that spear  that  he  had  stabbed  Boddapati  Sivayya,’

which must be omitted.”

Thus,  the  part  of  the  disclosure  statement,  namely,  

that he was ready to show the place where he had concealed  

the  clothes  of  the  deceased  is  clearly  admissible  under  

Section 27 of  the  Evidence Act  because the same relates  

distinctly  to  the  discovery  of  the  clothes  of  the  deceased  

from that very place.   

The contention that even if it is assumed for the sake  

of argument that the clothes of the deceased were recovered  

from the house of the sister of the appellant pursuant to the  

voluntary disclosure statement made by the appellant, the  

prosecution has failed to prove that the clothes so recovered  

belonged to the deceased and, therefore, the recovery of the  

clothes  should  not  be  treated  as  an  incriminating  

circumstances  is  devoid  of  merits.   First  of  all,  what  is  

relevant  to  notice  is  that  in  the  missing  report,  it  was  

mentioned by Nayeem Ahmad that his daughter aged five  

29

years, who was wearing frock and underwear, was missing  

from near the house while playing.; Thus, the wearing of the  

frock and underwear was mentioned by the father of the girl  

at  the  first  available  opportunity.   The  statement  by  

Nayeem, PW1, as well as statement made by Shamim, PW2,  

that there were no clothes on the dead body of the deceased  

has  gone  unchallenged.   Naturally,  therefore,  it  was  

necessary  for  the  Investigating  Officer  to  find  out  as  to  

where the clothes put on by the deceased were concealed.  

What is relevant to notice is that Ms. Bilkis who is sister of  

the appellant and who is examined as DW1 mentioned in  

her testimony before the Court that the police had taken  

into  custody  the  clothes  belonging  to  her  daughter  

Shabnam.  However, the record of the case shows that the  

frock and the underwear recovered from the house of Ms.  

Bilkis  pursuant  to  disclosure  statement  made  by  the  

appellant were blood stained.  It was never the case of Ms.  

Bilkis that the frock and underwear recovered or seized by  

the police were blood stained and belonged to her daughter  

Shabnam.  Further, the clothes were recovered pursuant to  

the voluntary disclosure statement made by the appellant  

30

on February 9, 1998 whereas Ms. Bilkis made claim that  

the clothes, which belonged to her daughter, were recovered  

and seized on September 30, 2003 when she was examined  

by the  appellant  as one  of  the defence witnesses.   If  the  

police had seized the clothes belonging to her daughter, Ms.  

Bilkis would not have maintained tacit silence for roughly  

about more than five years and would have made grievance  

before higher police officers or court within reasonable time.  

A bare reading of her testimony makes it more than clear  

that she had come to depose before the Court to save the  

appellant who is her real brother and stated wrong facts for  

the first  time before the Court.   Her case that the police  

personnel  had  given  2  to  4  blows  of  stick  to  her  and  

threatened  her  that  she  and  her  husband  would  be  

implicated in the case, does not inspire confidence of this  

Court.  Further, Exhibit Ka.3 which is seizure memo of the  

clothes  of  the  deceased recovered  from the  house  of  Ms.  

Bilkis  pursuant  to  the  disclosure  statement  made by the  

appellant, mentions that the frock recovered was made of  

terry-cotton fabric and its upper portion was white whereas  

lower portion was brown coloured and there were prints of  

31

flowers.   The  panchnama  further  indicates  that  it  was  

sleeveless  and  stained  with  blood  marks.   Similarly,  

underwear discovered was made of cotton.  It was white in  

colour  with  black  stripes  having  blood  stains.   Though  

Bilkis who was examined as DW1 claimed that the clothes  

recovered  from  her  house  belonged  to  her  daughter  

Shabanam, she could not give description of either frock or  

the  underwear  seized  during the  course  of  her  testimony  

before the court.  On overall view of the matter, this Court  

finds  that  it  was satisfactorily  proved  by  the  prosecution  

that the frock and underwear, recovered from the house of  

DW1  Ms.  Bilkis  pursuant  to  the  voluntary  disclosure  

statement made by the appellant, belonged to the deceased.

14. Yet  another  circumstance  relied  upon  by  the  

prosecution  is  that  the  underwear  of  the  appellant  was  

stained with blood and semen.  The fact that underwear put  

on by the appellant was seized under a panchnama is not  

disputed on behalf of the appellant at all.  The High Court  

ignored  this  circumstance  stating  that  the  appellant  was  

young  and,  therefore,  find  of  semen  stains  was  natural.  

However, the High Court ignored the material fact that in  

32

normal course, the underwear would not have blood stains  

at  all  and,  therefore,  it  was  for  the  appellant  to  offer  

explanation as to under what circumstances stains of blood  

were found on his underwear, seized by the police during  

the course of investigation.  The fact that the underwear of  

the appellant seized by the police had human blood stains is  

sufficiently  proved  by  the  contents  of  report  of  Chemical  

Analyst.  The fact that the blood stained underwear put on  

by the appellant was seized after four days does not make  

any  dent  in  the  prosecution  case  on  the  ground  that  a  

person would not move with such blood stained underwear  

for 3 – 4 days.  One cannot lose sight of the fact that those  

stains  were  not  visible  and even the  Investigating  Officer  

had stated that on examination the underwear put on by  

the appellant appeared to be stained with semen at some  

places.  If blood stains are found on the shirt or pant of a  

person then normally such person would not move in the  

village with those clothes on, because stains of blood would  

be  visible  and noticed  by  anyone.   However,  it  is  almost  

difficult for anyone to notice stains of blood on underwear  

worn by a person.  Further, the sense of cleanliness of a  

33

rustic  villager  cannot  be  ignored  by  the  Court.   While  

recording the statement of the appellant under Section 313  

of the Code, it was put to him by the learned Judge that  

during  the  course  of  investigation  his  blood  stained  

underwear was seized by the Police and his explanation was  

sought.   In  answer  to  the  said  question,  it  was  never  

claimed by the appellant that the underwear seized was not  

blood stained and that another underwear was substituted  

in  place  of  his  underwear  which was seized.   Thus,  this  

Court finds that the High Court was not justified at all in  

ignoring the circumstance sought to be relied upon by the  

prosecution that blood stained underwear of the appellant  

was recovered during the course of investigation.

15. Another circumstance sought to be relied upon by the  

prosecution  is  that  the  appellant  made  extra  judicial  

confession before  PW5, Anand Swaroop.   The evidence of  

this witness shows that he was one of the panchas when  

inquest on the dead body of the deceased was held.  During  

the  course  of  his  testimony,  the  witness  identified  his  

signature on the inquest report which was produced by the  

prosecution at Exhibit Ka.4.  According to this witness, on  

34

February  23,  1998,  he  had  been  to  Kasipur  Court  in  

connection  with  some  work.   What  is  asserted  by  the  

witness is that the appellant who is brother-in-law of Kabir  

had come to Court premises and told him near the shops  

that he and Mumtaz had killed Yasmeen after committing  

rape on her.  The witness further asserted that the reason  

for making extra judicial  confession by the appellant was  

that he was ex-pradhan of the village and the appellant was  

under an impression that the witness would be able to help  

him  by  approaching  the  police.   This  witness  in  no  

uncertain terms asserted before the court that he had told  

the Investigating Officer about the extra judicial confession  

made by the appellant.

In  his  cross-examination,  the  witness  stated  that  

police had recorded his statement only once.  According to  

the  witness,  police  had recorded  his  statement  sometime  

between 23 to 29th February, 1998 in the village.  What is  

mentioned by the witness in his cross-examination is that  

the  appellant  had  come  after  February  23,  1998  and,  

therefore, he had not thought it necessary to tell the police  

about the extra judicial confession made by the appellant.  

35

The suggestion made by the defence that the police used to  

visit house of this witness daily or that the witness used to  

go to the police station daily, is denied by the witness.  The  

manner  in  which this  suggestion is  made  to  the  witness  

indicates that the appellant was entertaining a notion that  

the witness would be in a position to help him because the  

witness  that  the  witness  was  going  to  the  Police  Station  

daily and policemen were also visiting him.  In the cross-

examination also, the witness maintained that the appellant  

had met him on February 23, 1998 in the court premises  

and neither the appellant nor Mumtaz was in the lockup  

nor inside the court room and that the appellant had made  

the confession near the shops.  The witness explained to the  

court as to why he had gone to the court and according to  

him he had gone to the court premises to meet one Ashish  

Sharma, legal adviser of the bank for getting his brother’s  

NOC prepared.  The witness further mentioned before the  

Court that the appellant and Mumtaz had met him between  

11.30 and 12 noon.  The suggestion made by the defence  

that it was wrong to say that the appellant had made any  

confessional statement was emphatically denied by him.  It  

36

may  be  mentioned  that  this  witness  in  the  cross-

examination  had  stated  that  the  appellant  was  not  on  

talking or visiting terms with him before February 23, 1998  

and, therefore, it was argued that there was no reason for  

the appellant to confide in this witness.  However, what is  

relevant  to  notice  is  that  the  witness  was  ex-pradhan  of  

Bajpur village.  Ex-Pradhan certainly enjoys a status in a  

small village.  The case of the defence was that the appellant  

was knowing that the witness was close to the police and  

was  going  to  the  Police  Station  daily.   Under  the  

circumstances, thinking that the witness would be able to  

render  some  help  to  him,  the  appellant  had  made  extra  

judicial  confession.   The  Court,  on  re-appreciation  of  

evidence, finds that it is not brought on the record of the  

case  that  this  witness  was  on  inimical  terms  with  the  

appellant.   In  fact,  this  witness  does  not  belong  to  the  

community  of  the  appellant  and  belongs  to  another  

community.  There was no earthly reason for this witness to  

come to the court and depose falsely about the extra judicial  

confession made by the appellant.   Though extra judicial  

confession is considered to be a weak piece of evidence by  

37

the courts, this Court finds that there is neither any rule of  

law  nor  of  prudence  that  the  evidence  furnishing  extra  

judicial  confession  cannot  be  relied  upon  unless  

corroborated by some other credible evidence.  The evidence  

relating to extra judicial confession can be acted upon if the  

evidence  about  extra  judicial  confession  comes  from  the  

mouth  of  a  witness  who appears  to  be  unbiased  and  in  

respect of whom even remotely nothing is brought out which  

may  tend  to  indicate  that  he  may  have  a  motive  for  

attributing  an  untruthful  statement  to  the  accused.   In  

State of U.P. vs. M.K. Anthony AIR 1985 SC 48, this Court,  

while explaining the law relating to extra judicial confession,  

ruled  that  if  the  word  spoken  by  the  witness  are  clear,  

unambiguous  and  unmistakable  one  showing  that  the  

accused  is  the  perpetrator  of  the  crime  and  nothing  is  

omitted by the witness which may militate against it, then  

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.  According to this Court, in such a situation, to  

go in search of corroboration itself tends to cause a shadow  

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of  doubt  over  the  evidence  and  if  the  evidence  of  extra  

judicial  confession  is  reliable,  trustworthy  and  beyond  

reproaching, the same can be relied upon and a conviction  

can be founded thereon.  Here, in this case, it is proved by  

the  prosecution  that  PW5,  Anand  Swaroop  was  not  on  

inimical terms with the appellant at all.  After subjecting his  

evidence to a rigorous test on the touchstone of credibility,  

this Court finds that extra judicial confession referred to by  

the witness is reliable and is rightly accepted by the Trial  

Court and the High Court.  The contention that when the  

appellant was being brought to the court, he was in custody  

and, therefore, the extra judicial confession referred to by  

PW5 would be hit  by the  provisions of  Section 26 of  the  

Evidence Act and could not have been received in evidence,  

cannot be accepted.  As observed earlier, the record shows  

that  the appellant  and another  were produced before  the  

Court for extension of judicial remand.  The appellant could  

not probablise his defence that he was in custody of police  

officer.   He  could  not  name  the  police  officer  who  had  

brought  him  with  Mumtaz  to  the  Court  premises  for  

extension of judicial remand nor it is his case that to the  

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hearing of the police officer who brought him to the court  

premises, he had made confessional statement before PW5.  

On the  facts  and in  the  circumstances  of  the  case,  This  

Court  is  of  the  opinion that  it  is  not  probablised  by  the  

defence that the appellant was in custody of police officer  

while  he  had made  extra  judicial  confession  before  PW5.  

The evidence relating to extra judicial  confession inspires  

confidence of this Court.  On this point, there is concurrent  

finding by the courts below and no case is made out by the  

appellant to interfere with the said finding in the present  

appeal.   

16. The  net  result  of  the  above  discussion  is  that  the  

prosecution has proved satisfactorily and beyond shadow of  

doubt following facts:  

(1) The deceased went missing in the evening of February  

5, 1998 when she was playing near her house.

(2) Her naked dead body was found at about 6 a.m. on  

February 8, 1998 lying on public way in front of house  

of Haji Khursheed.

(3) She was subjected to rape and died a homicidal death.

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(4) The  appellant  was  seen  fleeing  away  from  near  the  

place where the dead body of the deceased was lying at  

about 4.30 a.m. on February 8, 1998.

(5) Blood  stained  frock  and blood stained underwear  of  

the deceased concealed in the house of sister of the  

appellant,  were  recovered  pursuant  to  voluntary  

disclosure statement made by the appellant while in  

police custody.

(6) Underwear of the appellant seized during the course of  

investigation was found to be stained with blood and  

semen.  

(7) The  appellant  made  extra  judicial  confession  before  

PW5, Anand Swaroop.

17. The  cumulative  effect  of  the  abovementioned  facts  

taken together is conclusive in establishing the guilt of the  

appellant.  The chain of circumstantial evidence is complete  

and does not leave any reasonable ground for conclusion  

consistent with the innocence of the appellant.  The chain of  

circumstances is  such as to show that within all  human  

probability  the  rape  and  murder  of  the  deceased  were  

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committed by the appellant and none else and he had also  

caused disappearance of evidence of those offences.  This  

Court  further  notices  that  this  Court  in  Vasa  

Chandrasekhar  Rao vs.  Ponna  Satyanarayana  &  Anr.  

[(2000)  6  SCC  286]  and  Geetha vs.  State  of  Karnataka  

[(2000)  10  SCC  72]  while  explaining  the  law  relating  to  

circumstantial evidence has ruled that where circumstances  

proved  are  put  to  the  accused  through  his  examination  

under  Section  313  of  the  Code  and  the  accused  merely  

denies the same, then such denial would be an additional  

link in the chain of circumstances to bring home the charge  

against the accused.  As indicated earlier, it  is proved by  

cogent  and  reliable  evidence  that  the  appellant  had  

committed rape on the deceased and thereafter murdered  

her.   Here  in  this  case,  the  incriminating  circumstances  

proved  were  put  to  the  appellant  while  recording  his  

statement  under  Section  313  of  the  Code  of  Criminal  

Procedure.   In  his  further  statement,  recorded  under  

Section  313,  the  appellant  has  merely  denied  the  same.  

Therefore,  such  denial  on  the  part  of  the  appellant  and  

failure to explain the circumstances proved will have to be  

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treated as an additional link in the chain of circumstances  

to  bring  home  the  charge  against  the  appellant.   The  

circumstances  proved  establish  the  guilt  of  the  appellant  

beyond reasonable doubt.   

18. Thus, this Court does not find any substance in the  

appeal and the same is liable to be dismissed.  Accordingly,  

the appeal fails and is dismissed.

 ………………..…………J. [J.M. Panchal]

…………………..………J. [T.S. Thakur]

New Delhi; January 12, 2010.

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