REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.185  OF 2005

Kusuma Ankama Rao  ..Appellant

Versus

State of Andhra Pradesh ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

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

Bench  of  the  Andhra  Pradesh  High  Court  upholding  the

appellant’s  conviction  for  offence  punishable  under  Section

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

committing  murder  of  one  Gottapu  Adilakshmi  (hereinafter

referred to as the ‘deceased’) by strangulating her with a towel

on  22.2.2001.  Learned  VI  Additional  Sessions  Judge  (Fast

Track  Court),  Machilipatnam had  found  the  accused  guilty

and convicted and sentenced him to imprisonment for life and

fine.  

2. Prosecution case as unfolded during trial is as follows:

Kusuma  Ankama  Rao  (hereinafter  referred  to  as

‘accused’) was a resident of Pedaveedhi of Gudivada Town. He

was  a  fruit  vendor.  Sankara  Rao (PW-1)  and  Rama Swamy

(PW-2) are the son and husband of the deceased respectively.

The  deceased  stayed  with  her  family  in  the  house  of  M.

Simhachalam  (PW-3)  in  Padamata  Veedhi  at  Gudivada.

Accused  was  having illegal  intimacy  with the  deceased.  On

22.2.2001 at about 6.30 p.m., the accused met PW-1(son of

the deceased) and asked him to get a quarter bottle of liquor

and  a  beedi  packet  and  paid  Rs.50/-  for  the  purpose.

Accordingly,  PW-1  brought  the  said  items.  Thereafter,  the

accused asked the whereabouts of the deceased.  PW-1 took

the  accused  to  Gopalakrishna  (A.C.)  theatre,  where  the

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deceased was working as a labourer on that day.  On their

way to the theatre, they found the deceased and some others

coming in the  opposite  direction.  At  that  point  of  time,  the

accused talked with the deceased; and the accused, deceased

and  PW-1  went  to  the  by-pass  road  leading  to  Eluru  and

thereafter they further went to the black gram field of one N.

Narasimha Rao. At that point of time the accused asked PW-1

not to follow them and to stop there. Accordingly, PW-1 waited

there for half an hour or so and as the deceased and accused

did not return, he returned to the hotel where he was working.

Thereafter,  he  went  to  the  house  late  in  the  night.  In  the

morning  when he  found  that  her  mother  had not  returned

home,  he  stated  the  above  facts  to  his  father.  In  the

meanwhile,  they  heard  the  people  saying  that  there  was  a

dead body in the field of N.  Narsimha Rao. Then PWs 1 and 2

went there and saw the dead body of the deceased and PW-2

asked PW-1 to give complaint to the police. Accordingly, PW-1

went to Town Police, Gudivada and gave Ex.P-1 report. On the

basis  of  the  said  report,  FIR was registered  by  PW-11.  The

investigating officer (PW-12) on receipt of the FIR went to the

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place  of  offence  and  conducted  Panchanama  of  scene  of

offence and thereafter held inquest over the dead body of the

deceased.  He  also  examined  the  witnesses  and  seized  the

towel  and  other  material  objects.  In  the  meanwhile,  the

accused made an extra judicial  confession before PW-6, the

village  Administrative  Officer  to  the  effect  that  he  had

committed  murder  of  the  deceased  by  strangulation.

Immediately,  thereafter  PW-6 recorded  the statement  of  the

accused duly attested the same by PW-8, the village servant.

He  took  the  accused  to  the  Police  Station  along  with  the

report.  The  C.I.  of  police  examined  Village  Administrative

Officer.  After  completion  of  investigation,  charge  sheet  was

filed  before  the  learned  Additional  Judicial  First  Class

Magistrate,  Gudivada,  who  registered  the  same  as  P.R.C.

No.30  of  2001.  Since  the  offence  punishable  under  Section

302  IPC is  exclusively  triable  by the  Court  of  Sessions,  he

committed the same to the Court of Session, Machilipatnam,

who registered the case as S.C.No.211 of 2001. Thereafter, the

case was made over to the learned VI Additional District and

Sessions  Judge,  Machilipatnam  for  trial  and  disposal  in

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accordance with law.  

In  order  to establish its version, prosecution examined

12 witnesses and marked as Exh. P-1 to P-14 documents and

M.Os.  1  to  19  were  also  marked.  The  trial  Court  after

considering the evidence on record found the accused guilty

and  sentenced  him  as  afore-stated.  The  conviction  was

challenged before the High Court. The stand before the High

Court  was  that  the  prosecution  case  was  based  on

circumstantial evidence and the circumstances highlighted do

not establish the guilt of the accused. The State on the other

hand referred to the evidence of PWs 1 and 2 and the extra

judicial confession made before Village Administrative Officer

(PW-6) to the effect that accused and the deceased were last

seen together, and the evidence clearly established the guilt of

the accused. The High Court accepted the stand of the State

and dismissed the appeal.  

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

appellant  submitted  that  the  last  seen  concept  is  not

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applicable  to  the  present  case.  The  so  called  extra  judicial

confession was before a stranger. There is no reason as to why

the  accused  would  make  confession  before  a  stranger.

Reliance  is  placed  on  a  decision  of  this  Court  in  State  of

Haryana v. Ved Prakash (AIR 1994 SC 468) and Kailash Potlia

v. State of Andhra Pradesh (AIR 1996 SC 66).

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

hand submitted that the three witnesses i.e. PW 1 (son of the

deceased)  PWs  4  and  5  had  seen  the  deceased  and  the

accused  going  together  and,  thereafter  the  dead  body  was

recovered.   The  Village  Administrative  Officer  was  not  a

stranger but he was incharge of the village and was a person

of authority in that sense.

5. It  has  been  consistently  laid  down by  this  Court  that

where a case rests squarely on circumstantial evidence,  the

inference  of  guilt  can  be  justified  only  when  all  the

incriminating  facts  and  circumstances  are  found  to  be

incompatible with the innocence of the accused or the guilt of

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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.

6. We may also make a reference to a decision of this Court

in  C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC

193, wherein it has been observed thus:

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“In  a  case  based  on  circumstantial evidence,  the  settled  law  is  that  the circumstances from which the conclusion of guilt  is  drawn  should  be  fully  proved  and such  circumstances  must  be  conclusive  in nature.  Moreover,  all  the  circumstances should be complete  and there should be no gap left in the chain of evidence. Further the proved  circumstances  must  be  consistent only  with the  hypothesis  of  the  guilt  of  the accused  and  totally  inconsistent  with  his innocence....”.

7. In  Padala  Veera  Reddy v.  State  of A.P.  and Ors.   (AIR

1990 SC 79), it was laid down that when a case rests upon

circumstantial  evidence,  such  evidence  must  satisfy  the

following tests:  

“(1) the  circumstances  from  which  an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those  circumstances  should  be  of  a definite tendency unerringly pointing towards guilt of the accused;

(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     

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(4) the  circumstantial  evidence  in  order  to sustain  conviction  must  be  complete  and incapable  of  explanation  of  any  other hypothesis  than  that  of  the  guilt  of  the accused and such evidence should not only be consistent  with  the  guilt  of  the  accused  but should be inconsistent with his innocence.

8. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ

1104),  it  was pointed out that great care must be taken in

evaluating circumstantial evidence and if the evidence relied

on is reasonably capable of two inferences, the one in favour

of the accused must be accepted.  It was also pointed out that

the circumstances  relied upon must be found to have been

fully established and the cumulative effect of all the facts so

established  must  be  consistent  only  with  the  hypothesis  of

guilt.

9. Sir  Alfred  Wills  in  his  admirable  book  “Wills’

Circumstantial Evidence” (Chapter VI) lays down the following

rules  specially  to be  observed  in  the  case  of  circumstantial

evidence:  (1)  the  facts  alleged  as  the  basis  of  any  legal

inference  must  be  clearly  proved  and  beyond  reasonable

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doubt connected with the factum probandum; (2) the burden

of proof is always on the party who asserts the existence of

any  fact,  which  infers  legal  accountability;  (3)  in  all  cases,

whether of direct or circumstantial evidence the best evidence

must be adduced which the nature of the case admits; (4) in

order  to  justify  the  inference  of  guilt,  the  inculpatory  facts

must be incompatible with the innocence of the accused and

incapable  of  explanation,  upon  any  other  reasonable

hypothesis than that of his guilt, (5) if there be any reasonable

doubt of the guilt of the accused, he is entitled as of right to

be acquitted”.

10. There is no doubt that conviction can be based solely on

circumstantial evidence but it should be tested by the touch-

stone of law relating to circumstantial evidence laid down by

the this Court as far back as in 1952.   

11. In  Hanumant Govind Nargundkar and Anr. V.  State of

Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed

thus:

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“It  is  well  to  remember  that  in  cases where  the  evidence  is  of  a  circumstantial nature,  the  circumstances  from  which  the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only  with  the  hypothesis  of  the  guilt  of  the accused.  Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one  proposed  to be proved.  In  other words, there must be a chain of evidence so far  complete  as  not  to  leave  any  reasonable ground  for  a  conclusion  consistent  with  the innocence of the accused and it must be such as to show that within all  human probability the act must have been done by the accused.”

12. A reference may be made to a later decision in  Sharad

Birdhichand  Sarda v.  State  of  Maharashtra, (AIR  1984  SC

1622).  Therein, while dealing with circumstantial evidence, it

has been held that onus was on the prosecution to prove that

the  chain  is  complete  and  the  infirmity  of  lacuna  in

prosecution cannot be  cured by false  defence  or plea.   The

conditions  precedent  in  the  words  of  this  Court,  before

conviction could be based on circumstantial evidence, must be

fully established. They are:

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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 complete  as  not  to  leave  any  reasonable ground for the conclusion consistent with the innocence of the accused and must show that in  all  human  probability  the  act  must  have been done by the accused.     

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

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

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

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14. So far as the last seen aspect is concerned it is necessary

to take note of two decisions of this court.  In State of U.P. v.

Satish [2005 (3) SCC 114] it was noted as follows:

“22. The  last  seen  theory  comes  into  play where the time-gap between the point of time when the accused and the deceased were seen last  alive  and  when  the  deceased  is  found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there  is  a  long  gap  and  possibility  of  other persons  coming  in  between  exists.   In  the absence  of  any  other  positive  evidence  to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.”  

15. In Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006

(10) SCC 172] it was noted as follows:

“27. The last-seen theory, furthermore, comes into play where the time gap between the point of  time when  the  accused  and the  deceased

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were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime  becomes  impossible.  Even  in  such  a case  the  courts  should  look  for  some corroboration”.

(See also  Bodhraj v.  State of J&K (2002(8) SCC 45).)”

16. A similar view was also taken in Jaswant Gir v. State of

Punjab [2005(12) SCC 438].

17. Confessions may be divided into two classes i.e. judicial

and extra-judicial.  Judicial  confessions  are  those  which are

made before a Magistrate or a 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 that are

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 of Criminal

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Procedure,  1973  (in  short  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  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

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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 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  the

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

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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

in  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  the  highest  credit,

because it is presumed to flow from the highest sense of guilt.

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  harassment  and  continuous  interrogation  for

several hours after the person is treated as an offender and

accused,  such  statement  must  be  regarded  as  involuntary.

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The inducement may take the form of a promise or of a 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’s Evidence, 9th Edn.,

p. 284.)  A  promise  is  always  attached  to  the  confession

alternative  while  a  threat  is  always  attached  to  the  silence

alternative;  thus, in 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  an

inducement, promise etc. or its sufficiency and how or in what

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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.

18. 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

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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 of 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 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.  (See  State  of

Rajasthan v. Raja Ram (2003 (8) SCC 180).

19. If  the factual scenario is considered it is seen that the

prosecution clearly established the guilt of the accused. There

is no infirmity in the judgment of the trial Court as affirmed by

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the  High  Court.  The  appeal  is  without  merit,  deserves

dismissal which we direct.  

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (P. SATHASIVAM)

New Delhi, July 7, 2008

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