IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                           OF 2008   (Arising out of SLP (Crl.) No.3814 of 2006)

Inspector of Police, Tamil Nadu .. Appellant

Versus

Balaprasanna ..Respondent  

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge  in  this  appeal  is  to  the  order  of  a  Division

Bench of Madras High Court allowing the appeal filed by the

respondent  (hereinafter  referred  to  as  the  ‘accused’).  The

accused was convicted for offence punishable under Section

302 of the Indian Penal Code,  1860 (in short the ‘IPC’)  and

sentenced to undergo imprisonment for life and to pay a fine

of  Rs.10,000/-  with default  stipulation by Principal  District

Judge,  Madurai.  He  was  also  convicted  for  offences

punishable under Section 392 read with Section 397 IPC and

sentence to undergo rigorous imprisonment for 10 years and

to pay a fine.

3. Background facts in a nutshell are as follows:

The  deceased  is  one  Mayurani,  a  Sri  Lankan  student,

who was residing in the first floor of the house belonging to

one  Solsimalai  (P.W.1).  The  Accused  is  also  a  Sri  Lankan

student  studying  in  a  different  college,  but  staying  in  the

second floor of the same premises. The occurrence allegedly

took  place  in  the  afternoon  of  22.4.2003.  The  First

Information  Report  was  lodged  by  P.W.1  on  24-4-2003  at

about  9.30  A.M.  It  was  indicated  in  the  First  Information

Report  that on 24.4.2003 at 9.00 A.M.,  while the informant

had gone to perform pooja in the first floor of the house, he got

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foul smell in the last room of the first floor and found blood

seeping  through the front door.  On opening the window he

noticed that Mayurani was lying in a pool of blood with her

face covered with a bag. On the basis of the aforesaid F.I.R.,

investigation was taken up initially by P.W.40. Subsequently

on the basis of the order of the High Court, such investigation

was completed by P.W.42.

The accused is stated to have been arrested on suspicion

on 26.4.2003.  On the basis of the statement of the accused,

prosecution discovered many materials including a knife and

a log allegedly used for killing.

Initially,  P.W.40  suspected  the  role  of  P.W.1,  his  wife

P.W.2,  P.W.3,  from  whose  house  certain  incriminating

material were recovered allegedly on the basis of statement of

the accused as well as P.W.4, who was working as a cleaner in

the vehicle of P.W.1. Subsequently, however, P.W.42, who took

over investigation from P.W.40 filed charge-sheet only against

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the present appellant on the footing that P.Ws. 1 to 4 had no

role to play in the crime.

4. The  prosecution  relied  upon  only  circumstantial

evidence,  namely,  confessional  statements  of  the  accused

leading to recovery of various incriminating materials. Ex.P-6

is the statement leading to recovery of Travel bags (M.Os. 2 &

3), knife (.M.0.5), wooden log (M.0.28), rubber gloves (M.0.29

series)  cotton  rope  with  human  hair  (MN.O.30  series),  two

sponges soaked with blood (M.0.31 series), bloodstained blue

clolour  jean  pant  (M.0.32),  bloodstained  white  banian

(M.0.33),  colour  banian  (M.0.34),  bloodstained  grey  colour

pant  (M.0.35),  bloodstained  pillow  (M.0.36),  plastic  bucket

(M.0.37)  from the  house  of  P.W.3.  Ex-P-8  is  the  statement

leading to recovery of computer and its accessories (M.Os. 6 to

17)  from the house  of  P.W.15,  a  classmate  of  the  accused.

Ex.P-10  is  the  statement  relating  to  jewelleries,  ultimately

leading  to  recovery  of  gold  ingots  (M.O.18  series)  from the

house of P.W.19 on the basis of other connecting statements

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of P.W.17 and P.W.18. These three statements, Exs. P-6, P-8

and P-10 dated 26-4-2003, were made before P.W.40 in the

presence  of  P.W.22  and  C.W.1.  The  other  confessional

statement Ex.P-12 dated 22-9-2003 made before P.W.42 and

Subbiah and P.W.24, led to recovery of "M" dollar (M.0.38) and

key  chain with key  chain in (M.0.39)  from the  toilet  in the

room of the accused. The prosecution has also relied upon the

alleged motive to the effect that the accused urgently wanted

money with a view to increase his marks in Mathematics and,

therefore,  the  accused  had  stolen  articles  belonging  to  the

deceased.

5. The trial court found the respondent guilty and recorded

conviction  and  imposed  sentence  as  aforestated.   The  trial

court  found  that  the  prosecution  version  rested  on

circumstantial  evidence.   The  following  circumstances  were

highlighted to find the accused guilty.

(a) The death is homicidal;

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(b) The  accused  was  in  need  of  money  to  chase

mathematics paper and for the aforesaid purpose he has

killed the deceased to take away the valuable articles like

computer and gold ornaments to sell such articles in the

market.

(c) At  the  time  of  occurrence,  only  the  accused,

deceased and PW 9 were available in the premises and

there was no other person.

(d) Statement  of  the  accused  leading  to  recovery  of

incriminating  materials  such  as  knife,  rope,  clothes,

wooden  log  and  other  valuable  articles  such  as

computer, gold ornaments, “M” Dollar and the key chain

with key belonging to the deceased.

6. The High Court found that the circumstances highlighted

were  not  sufficient  to  fasten  the  guilt  on the  accused,  and

directed  acquittal.  Learned  counsel  for  the  appellant

submitted  that  the  High  Court  failed  to  notice  that  the

circumstances  highlighted  clearly  establish  the  chain  of

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circumstances which established the prosecution version and

the High Court was not justified in directing acquittal.

7. Learned counsel  for the respondent on the other hand

supported the judgment of the High Court.

8. The conviction based on circumstantial evidence has been

highlighted by this Court in various orders of this Court.

9. 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

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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.

10. 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

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of  the  accused  and  totally  inconsistent  with his innocence....”.

11. 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 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

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consistent  with  the  guilt  of  the  accused  but should be inconsistent with his innocence.”

12. 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.

13. 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

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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”.

14. 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.   

15. 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.”

16. 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:

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(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.     

17. These aspects were highlighted in State of Rajasthan v.

Rajaram (2003(8) SCC 180), State of Haryana v. Jagbir Singh

& Anr. (2003(11) SCC 261).

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18. The main circumstances relied upon by the prosecution

relates to the statements of the accused leading to discovery of

materials  facts,  admissible  under  Section  27  of  the  Indian

Evidence Act, 1872  (in short the 'Evidence Act').

19. Law  is  well  settled  that  the  prosecution  while  relying

upon  the  confessional  statement  leading  to  discovery  of

articles under Section 27 of  the Evidence  Act,  has to prove

through cogent evidence that the statement has been made

voluntarily and leads to discovery of the relevant facts.  The

scope and ambit of Section 27 of the Evidence Act had been

stated  and  restated  in  several  decisions  of  this  Court.

However, in almost all such decisions reference is made to the

observation  of  the  Privy  Council  in  Pulukuri  Kotayya v.

Emperor (AIR 1947 PC 67).  It is worthwhile to extract such

quoted observation:      

"It  is  fallacious  to  treat  the  'fact  discovered' within  the  section  as  equivalent  to  the  object produced;  the  fact  discovered  embraces  the place from which the object is produced and the knowledge  of  the  accused  as  to  this  and  the

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information given must relate distinctly to this fact.   Information as to past  user  or the past history, of the object produced is not related to his  discovery  in  the  setting  in  which  it  is discovered.  Information supplied by a person in custody that 'I will produce a knife concealed in the  roof  of  my  house'  does  not  lead  to  the discovery of  the  knife;  knives  were  discovered many years ago.  It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which stabbed A', these words are inadmissible since they do not related to the discovery of the knife in the house of the informant (p.77)".

20. At  one  time  it  was  held  that  the  expression  “fact

discovered”  in  the  section  is  restricted  to  a  physical  or

material fact which can be perceived by the senses, and that it

does not include a mental fact, now it is fairly settled that the

expression  “fact  discovered”  includes  not  only  the  physical

object produced, but also the place from which it is produced

and  the  knowledge  of  the  accused  as  to  this,  as  noted  in

Pulukuri Kottaya’s case (supra).

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21. The various requirements of the section can be summed

up as follows:

(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to  do  with  the  question  of  relevancy.  The relevancy  of  the  fact  discovered  must  be established  according  to  the  prescriptions relating  to  relevancy  of  other  evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3)  The  discovery  must  have  been  in consequence  of  some  information  received from the  accused  and  not  by  the  accused’s own act. (4) The person giving the information must be accused of any offence. (5)  He  must  be  in  the  custody  of  a  police officer. (6)  The discovery of a fact in consequence of information  received  from  an  accused  in custody must be deposed to. (7)  Thereupon  only  that  portion  of  the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.

22.  As observed in  Pulukuri  Kottaya’s case (supra) it  can

seldom happen that information leading to the discovery of a

fact forms the foundation of the prosecution case.  It  is one

link in the chain of proof and the other links must be forged in

a  manner  allowed  by  law.  To  similar  effect  was  the  view

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expressed in K. Chinnaswamy Reddy v. State of A.P. (AIR 1962

SC 1788).

23. The  above  position  was  highlighted  in  Anter  Singh v.

State of Rajasthan (AIR 2004 SC 2665).

24. In  Rammi alias Rameshwar v.  State of Madhya Pradesh

(AIR 1999 SC 3544) the scope and ambit of Section 27 of the

Evidence  Act  was  analysed  in  great  detail  and  it  was

concluded in para 12 as follows:

“12. True,  such information  is  admissible  in evidence under Section 27 of the Evidence Act, but admissibility  alone would not render the evidence, pertaining to the above information, reliable.  While  testing  the  reliability  of  such evidence the court has to see whether it was voluntarily stated by the accused.”

25. Significantly,  the  prosecution  has  relied  upon  the

evidence  of  PW  40  who  was  investigating  initially.   His

evidence has to be considered in the background of what has

been stated by PW 22 and CW 1. It has been accepted by the

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prosecution that great efforts were made by PW 40 to falsely

implicate to PWs 1 to 4 and for that purpose a departmental

proceeding was initiated. Even according to the statement of

the  subsequent  investigating  officer  (PW  42),  several  blank

papers with the signature of PW 22 and CW 1 had been by PW

40 and such documents had been used to create false records

to implicate PWs 1 to 4. It is to be noted that PW 2 himself

was  one  of  the  suspected  person  at  the  initial  stage  of

investigation.   

26. That apart, materials on record such as the statement of

P.W.22 recorded under Section 164 of the Code of Criminal

Procedure, 1973 (in short ‘Code’) and the statement of C.W.1,

raise  a  reasonable  doubt  relating  to  voluntariness  of  the

alleged  confession.  P.W.22,  who  is  a  close  relation  of  the

deceased  (cousin)  has  stated  that  two  days  after  the

occurrence  after  the  information  that  Bala  Prasanna  was

roaming near LIC Colony, Anna Nagar Police brought him to

the Police  Station and Bala  Prasanna was arrested at 5.00

P.M. and was taken to the police station and a witness was

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present there. It is further stated that at the time of enquiry,

the accused was beaten up by the police and they have seized

a  gold  ring  and  Rs.5000/-  cash  from  him.  If  this  is  the

statement of P.W.22 recorded under Section 164 of the Code

a  witness  in  whose  presence  the  confessional  statement

leading  to  discovery  of  articles  from the  house  of  Hajeeali,

P.W.3 had been made, it raises serious doubt  regarding the

voluntariness of the statement. In this context, it is also note

worthy to indicate that C.W.1 in his evidence has stated that

the accused was in police station on 24-4-2003 itself. Similar

statement  is made by P.W.4.  That  apart,  C.W.1 has stated

that  no  statement  has  been  made  in  his  presence.  The

prosecution version to the effect that even some signatures on

blank papers had been taken from P.W.22 and C.W.1 thus

assumes great importance.

27.  The  alleged  statement  made  by  the  accused  led  to

discovery  of  knife,  bloodstained  clothes,  rope,  etc.

Unfortunately,  for  the  prosecution  there  is  no  evidence  to

show that in fact the wearing apparels containing bloodstains

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belonged  to  the  accused,  save  and  except  the  alleged

confessional  statement.  No  witness  has  spoken  that  those

clothes were worn by the accused at any time far less at or

about the time of occurrence. It is also to be kept in view that

those articles were recovered from the house of P.W.3 and at

the initial stage of investigation, P.W.3 himself was one of the

suspected  person  and  he  was  arrested.  Therefore,  the

statement  of  P.W.3 and his mother that those  articles  were

brought by the accused and left in the upstairs room is to be

considered with a pinch of salt. Moreover, there is nothing to

indicate  that  in fact  the bloodstained clothes  and rope  had

tallied with the blood grouping of the deceased. The knife did

not contain any bloodstain. Therefore, the aspect relating to

recovery of articles from the house of P.W.3 and his mother

cannot  be  considered  as  a  link  to  complete  the  chain  of

circumstantial evidence.

28. The next recovery relates to recovery of computer and

accessories. Apart from the fact that there is niggling doubt

about the so called confession, in view  of statement under

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Section  164  of  the  Code  of  P.W.22  and  the  statement  of

C.W.1, a further doubt is raised regarding such aspect in

view of evidence of C.W.1 to the effect that he had seen such

computer in the room of the deceased when they had gone

to  the  room after  the  offence  was reported.  The  fact  that

C.W.1 is a close relation of the deceased adds weight to his

evidence rather than taking it away. Even accepting that the

computer had been given to P.W.15 by the accused, such

circumstance  by itself  does  not unerringly  points towards

the  guilt  of  the  accused  either  in  respect  of  offence  of

murder  or  even  robbery.  It  is  quite  possible  that  such

articles might have been borrowed by the accused from the

deceased and not necessarily stolen by the accused from the

deceased  after  killing  her.  The  fact  that  P.W.9  had  not

initially  stated  anything  before  P.W.40 about  the  accused

coming down with computer at 3.30 P.M. and stated so for

the  first  time  when she  was  re-examined  after  5  months

cannot be lost sight of.  As a matter of fact, P.W.9 who was

examined on the very date when police started investigation

did  not  inform the  police  that  she  had seen the  accused

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coming  down  from  upstairs  or  that  the  accused  had

threatened her. Her statement to the following:

"I did not tell anyone that Balaprasanna took away the computer and threatened me. I  did not  tell  this  even  to  the  Inspector  of  Police after going to the police station. I  do not tell this even to P.W.1...".

29. The next recovery relates to the ingots. For the aforesaid

aspect, the evidence of P.Ws. 17, 18 and 19 is relevant. Since

the golden jewellery had been molten and were recovered in

the shape of ingots, it would be very hazardous to come to the

conclusion that in fact the golden jewellery  belonged to the

deceased. If  the accused had killed the deceased and stolen

those golden jewellery, there is no reason as to why he had

also not taken ear rings from the deceased. The fact that ear

rings were on the dead body is admitted by the prosecution.

30. The prosecution has strongly  relied upon the fact that

"M" Dollar belonging to the deceased and a chain with key of

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the  room  of  the  deceased  were  discovered  from inside  the

toilet  in  the  room  which  was  previously  occupied  by  the

accused. For the aforesaid purpose, they have relied upon the

evidence  of  P.W.42  and  the  seizure  witness  P.W.24.  The

accused  had  allegedly  made  earlier  confessional  statement

before  P.W.40  on 26-4-2003  leading  to  discovery  of  several

articles. The subsequent statement spoken to by P.W.42, the

subsequent Investigating Officer, is alleged to have been made

only in September, 2003, after about five months. So far as

the  first  confession  statement  made  before  P.W.40  is

concerned,  admittedly  the  accused  was  under  physical

custody, at that time, whereas at the time of last confession

stated to have been made before P.W.42, the accused was on

bail  and  he  had  been  summoned  by  P.W.42  for  further

examination  and,  therefore,  technically  in  custody.  If  the

accused  had  not  made  such  a  statement  at  such  first

instance, when he had confessed about other articles, it is not

understood as to how after 5 months when he was on bail he

would make such a statement. Such alleged confession made

belatedly  thus  creates  doubt  regarding  its  authenticity  or

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voluntariness. In this context,  it is to be noted that C.W. 1

states that "M" Dollar was taken from him by P.W.42 for the

purpose of facilitating investigation. Keeping in view the fact

that C.W.1 is a close relation of the deceased and obviously

interested  in  punishing  the  real  culprit,  such  a  statement

coming from C.W.1 cannot be slightly brushed aside.

31. The fact that there had been a statement allegedly made

by P.W.1 leading to recovery of a parallel key from the dash

board  of  the  car  of  P.W.1,  cannot  be  lost  sight  of.  It  is  of

course true that the prosecution has tried to exonerate P.W.1

by adducing evidence through P.Ws. 36 and 39 to the effect

that immediately after recovery of the dead body, P.W.40 had

taken two such keys, thus contradicting the alleged confession

of  P.W.1.  However,  the very suspicious role  of  P.W.40,  who

apparently was in possession of at least two keys of the same

lock creates suspicion regarding recovery of another key after

5 months.  

32. Law is well settled that when the prosecution relies upon

circumstantial  evidence,  all  the  links  in  the  chain  of

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circumstances  must  be  complete  and  should  be  proved

through cogent evidence.  

33. When the judgment of the High Court is analysed in the

background of what has been stated by this Court as regards

circumstantial evidence, the inevitable conclusion is that the

impugned judgment of  the High Court  does not suffer from

any infirmity to warrant interference. The appeal is dismissed.

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

..…………………………J. (P. SATHASIVAM)

New Delhi, July 21, 2008

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