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CASE NO.: Appeal (crl.)  378 of 2008

PETITIONER: Liyakat

RESPONDENT: State of Uttaranchal

DATE OF JUDGMENT: 25/02/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO 378                OF 2008 (Arising out of S.L.P (Crl.) No.3314 of 2006) With Criminal Appeal No.379               of 2008 (Arising out of SLP (Crl.) 3316 of 2006)

Dr. ARIJIT PASAYAT, J.  

1.      Leave granted. 2.      These two appeals are directed against the common  judgment of the Uttranchal High Court.

3.      Challenge in this appeal is to judgment of a Division  Bench of the Uttaranchal High Court which disposed of  Criminal Reference No. 2 of 2004 and two Criminal Appeal  Nos. 45 and 46 of 2002.  The two criminal appeals were filed  by Liyakat the present appellant and co-accused Smt. Zahira.   The reference was necessitated as the Learned Additional  District and Sessions Judge, Ist Fast Track Court Hardwar  has awarded death sentence to the accused Liyakat.                                                                                                                                                           awarded death sentence to accused Liyakat.  He had also  awarded sentences of imprisonment for life to Zahira and the  accused No. 3.  Both of them were convicted for offences  punishable under Sections 302 and 201 of the Indian Penal  Code, 1860 (in short the ’IPC’).  The trial court, however had  acquitted Accused Nos. 2 and 4 namely Riyasat and Jeewani.

4.      Noor Alam was child of PW 1 Rashid and his wife PW 2  Nasreen.  PW 1 Rashid and PW2 Nasreen used to reside in the  neighbourhood of Jeewani, original accused No. 4. On the  fateful day i.e. on 12th day of January, 1999, Nasreen was  sitting alongwith her child in the courtyard of Gulami’s house,  who is husband of original accused no.4 Jeewani. At that time  Zaheera, Jiwani, Liyakat and Riyasat were also there. Her  husband Rashid, P.W. 1 came there and asked his wife to go  with him to feed fertilizer to the standing crop in the field.  However, Nasreen declined to go with him as there was nobody  to lookafter Noor Alam. Hearing this, Jeewani and other  accused persons told that they will look after the child and she  could leave the child with them. P.W.3 Brahm Pal and one  Rishipal were also there at that time. The child was left by  Nasreen with the accused persons and she left the place  alongwith her husband. When both of them returned at about  4 O’clock, they straightaway went to the house of Gulami and

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enquired about Noor Alam. Accused told them that Noor Alam  was playing in the vicinity only. However, they could not find  the child. They searched for the child for the rest of the day  and night and even on 13th of January, 1999, but to no effect.  However, in the morning of 14th, when Rashid was searching  for child alongwith Brahmpal, Bhagwan and Yasin, they  searched the house or hut of Liyakat and saw that in the  northern corner of that hut, foot of small child was protruding  out of the ground. Seeing this Rashid reached to the Police  Station, Laksar and reported the matter.

5.       A case was registered on that basis and the Incharge of  the Police out-post (Chauki) was informed on wireless and  received the message.  O.P. Sisodia PW 8 with other officials  reached the house of the accused and in presence of the  witnesses, body of Noor Alam, which was buried in the pit in  the northern corner of the hut was recovered. Panchnama and  other formalities were completed and on that very day all the  accused persons were arrested.

6.      The prosecution relied on eight witnesses. They being the  parents of the child PW 1 Rashid and PW 2 Nasreen and two  other witnesses PW 3 Brahm Pal and PW 4 Rishipal. They all  supported the prosecution story.  Besides them, PW 6 Dr. R.K.  Pande is the medical officer, who had conducted post mortem  on the dead body and PW 7 Rishipal and PW 8.  O.P. Sisodia  are the police witnesses.

7.      Case of the prosecution in short was that appellant  Liyakat, Riyasat, Zahira and Jeewani committed murder of  Noor Alam a child aged about 1= years, the deceased and they  buried to the body of the child with an idea of screening the  act.  The trial court accepted the prosecution version in part  so far as the appellant and Zahira are concerned but directed  acquittal of the co-accused.  The trial court found that the  evidence was clear and cogent and therefore the appellant  Liyakat was given life sentence and Zahira was given death  sentence.  Since the sentence of death was awarded, the  reference was made to the High Court for confirmation in  terms of Section 367 of the Code of Criminal Procedure, 1973  (in short the ’Cr.P.C.’).

8.      The High Court by the impugned judgment altered the  death sentence awarded to appellant Liyakat life sentence. It  however upheld the sentence of life imprisonment awarded to  Zahira.

9.      In support of the appeal learned counsel for the appellant  submitted that the case based on circumstantial evidence and  the circumstances highlighted by the trial court and the High  Court do not warrant a conclusion that the appellants were  responsible for the murder of the child.

10.     With reference to the medical evidence, it was submitted  that this was not a case of strangulation and therefore the  conclusion of killing the child of suffocation cannot be  maintained.

11.     The circumstances which were highlighted against the  appellant was the fact that the child was left in the custody of  the appellants, the dead body was found buried in the  premises of the appellants.  No explanation by way of  suggestion in cross examination or in the examination under  Section 313 Cr.P.C. was offered as to how the dead body was  found buried in the hut of the accused which was in his

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exclusive use.

12.     Following circumstances were highlighted by the  prosecution to substantiate its accusations:

(1)     That the child Noor Alam was handed over in the custody of the accused persons at about 1 O’clock by the parents;

(IA)    That the child was either a toddler or a crawling boy;

(2)     That the child was missing barely within three hours after he was given in the custody of the accused persons;

(3)     That there was no explanation given by the accused for the missing of the boy to the parents and they only casually replied that the child must have been playing somewhere else;

(4)     That the dead-body of the child was found buried in the hut, which was in the use and occupation of the accused persons;

(5)     That there is no explanation whatsoever as to how his body came to be buried in the hut of these accused persons;

(6)     That the unsubstantiated defence raised by the appellant no.2 Zaheera suggesting the alibi, which could not be proved at all and has been rightly disbelieved by the trial Court;

(7)     That the child died unnatural and homicidal  death due to suffocation and that the child  had died even before it was buried.

13.      Before analysing the factual aspects it may be stated  that for a crime to be proved it is not necessary that the crime  must be seen to have been committed and must, in all  circumstances be proved by direct ocular evidence by  examining before the court those persons who had seen its  commission. The offence can be proved by circumstantial  evidence also. The principal fact or factum probandum may be  proved indirectly by means of certain inferences drawn from  factum probans, that is, the evidentiary facts. To put it  differently, circumstantial evidence is not direct to the point in  issue but consists of evidence of various other facts which are  so closely associated with the fact in issue that taken together  they form a chain of circumstances from which the existence  of the principal fact can be legally inferred or presumed.  14.     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  (1977)2 SCC 99), Eradu v. State of Hyderabad (AIR 1956 SC  316), Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330],  State of U.P. v. Sukhbasi [AIR 1985 SC 1224], Balwinder Singh  v. State of Punjab[AIR 1987 SC 350] and Ashok Kumar

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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 as to negative the innocence of the accused and bring  the offences home beyond any reasonable doubt.  15.     We may also make a reference to a decision of this Court  in C. Chenga Reddy v. State of A.P. [1996 (10) SCC 193]  wherein it has been observed thus: (SCC pp.   206-07, para  21)  "21. 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."  

16.     In Padala Veera Reddy v. State of A.P. [AIR 1990 SC 79] it  was laid down that when a case rests upon circumstantial  evidence, such evidence must satisfy the following tests: (SCC  pp.   710-11, para 10)  "(1) the circumstances from which an inference  of guilt is sought to be drawn, must be  cogently and firmly established;   (2 ) those circumstances should be of a definite  tendency unerringly pointing towards guilt of  the accused;   (3) the circumstances, taken cumulatively,  should form a chain so complete that there is  no escape from the conclusion that within all  human probability the crime was committed  by the accused and none else; and   (4) the circumstantial evidence in order to  sustain conviction must be complete and  incapable of explanation of any other  hypothesis than that of the guilt of the  accused and such evidence should not only be  consistent with the guilt of the accused but  should be inconsistent with his innocence."    17.      In State of U.P. v. Ashok Kumar Srivastavaii [1992(2) SCC  86] 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.   

18.      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

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reasonable doubt connected with the factum  probandum; (2) the burden of proof is always  on the party who asserts the existence of any  fact, which infers legal accountability; (3) in all  cases, whether of direct or circumstantial  evidence the best evidence must be adduced  which the nature of the case admits; (4) in  order to justify the inference of guilt, the  inculpatory facts must be incompatible with  the innocence of the accused and incapable of  explanation, upon any other reasonable  hypothesis than that of his guilt; and (5) if  there be any reasonable doubt of the guilt of  the accused, he is entitled as of right to be  acquitted."  

19.      There is no doubt that conviction can be based solely on  circumstantial evidence but it should be tested on the  touchstone of law relating to circumstantial evidence laid  down by this Court as far back as in 1952.    20. In Hanumant Govind Nargundkar v. State of M.P. [AIR 1952  SC 343] it was observed thus: (AIR pp.   345-46, para 10)  "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 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."    21.      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 the 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: (SCC p.   185, para 153)  ( 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

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accused.  22.     The above position was highlighted in State of Rajasthan  v. Raja Ram [2003(8) SCC 180]. 23.     It has been rightly noted by the trial court and the High  Court that the accused persons were absolutely silent and no  explanation was offered as to how the body came to be buried  in their hut which was in their exclusive user.   

24.     Similarly the non-explanation of this vital circumstance  adds to the chain of circumstances.  It is now settled law that  if the deceased was in the custody or in the company of the  accused, then the accused must supply some explanation  regarding the disappearance of the deceased.

25.     In the factual background, it is considered in the light of  the decisions referred to above, the inevitable conclusion is  that the appeals are sans merit, deserve dismissal which we  direct.  We record our appreciation for the able manner in  which Mr. Y.P. Singh, learned Amicus Curiae assisted the  case.