REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.132 OF 2002

State of U.P.         ...Appellant

Versus

Ram Balak and Anr.           ...Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. The State of U.P. is in appeal questioning the correctness of

judgment  of  a  Division  Bench  of  the  Allahabad  High  Court  which

directed  acquittal  of  the  respondents.  The  learned  5th Additional

Sessions  Judge  found  the  respondents  guilty  of  offence  punishable

under Sections 376, 302 and 201 of the Indian Penal Code, 1860 (in

short the ‘IPC’). Each was sentenced to death sentence for the offence

relatable  to  Section  302  IPC,  life  imprisonment  for  the  offence

relatable to Section 376 IPC and 7 years for the offence relatable to

Section 201 IPC.  The appellants preferred appeal before the High

Court and a reference was made by the Trial Court under Section 366 of

the   Code  of  Criminal  Procedure,  1973  (in  short  the  ‘Code’)  for

confirmation of the death sentence. The High Court by the impugned

judgment found that the accusations have not been established by the

prosecution and therefore directed acquittal. Capital reference was

rejected.

2. The prosecution version as unfolded during trial is as follows:

According to prosecution, murder and rape was committed by the

respondents  on  17-11-1992  at  about  7.00  A.M.  in  the  morning  when

Kumari Suneeta, the deceased victim aged about 14 years had gone to

ease herself in the nearby open field in village Jamal Nagar Police

Station Safipur District Unnao. When on 17-11-1992 at about 7.00 A.M.

Kumari Suneeta had gone to attend the call of nature in the nearby

open field, both the accused followed her and after catching hold of

her  committed  rape  upon  her  and  thereafter  killed  her  by

strangulation.  They  thereafter  concealed  the  dead  body  of  Kumari

Suneeta by throwing it in the nearby Patawar. When she did not return

back  to  her  home,  the  family  members  of  Kumari  Suneeta  started

searching for her and ultimately at about 2.00 p.m. the dead body of

the Kumari Suneeta was found in the Patawar. After recovery of the

dead  body  of  Kumari  Suneeta,  Radhey  Lal  (PW.1),  brother  of  the

deceased lodged a report about the incident at Police Station Safipur

District Unnao at 3.45 P.M. on the same day. The distance of Police

Station is 6 miles from the place of the incident. Sheo Harsh Tewari

(C.W.2), Sub Inspector was present at the Police Station at the time

when the report was lodged, therefore, he immediately proceeded to the

place of the incident and reached there in the evening. He prepared

inquest report at about 4.30 P.M. and other relevant papers Ext. Ka. 6

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to  Ka.  10  and  sent  the  dead  body  to  Mortuary  for  post-mortem

examination. The Investigating Officer thereafter prepared Site-plan

Ext. Ka.14 and recovered bali, Lutia, Chappal, Chaddhi etc. from the

place of the incident. The investigating Officer also recovered Salwar

and Frock which were found to be wrapped on the neck of the deceased.

It is further said that thereafter the Investigating Officer called

the Dog Squad and on the request of the Investigating Officer, Dog

Squad reached there on 18-l1-1992 at about 12.45 p.m.  It is said that

the dogs after smelling the foot-print of the accused from the place

of the incident reached the house of Shiv Balak. On 2.12.1992, the

Investigating Officer arrested Ram Balak and recovered one lutia of

Shiv Balak from the place of the incident on the pointing out of

accused Ram Balak. Shiv Balak subsequently surrendered in Court. The

autopsy on the dead body of the deceased was conducted on 18-11-1992

by Dr. Satya Prakash, Medical Officer District Hospital, Unnao. Ram

Balak accused after the incident visited the house of Iqbal Ahmad (CW-

1) and confessed his guilt. After completing the investigation the

Investigating  Officer  submitted  charge-sheet  against  the  accused

persons.

Since  the  accused  persons  pleaded  innocence  trial  was  held.

Seven witnesses were examined by the prosecution to prove the version

which rested on circumstantial evidence.  

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The learned Trial Judge after scrutinizing the evidence on record

came to the conclusion that the prosecution has successfully proved

the guilt of the accused beyond reasonable doubt and therefore he

convicted and sentenced the respondents as mentioned above.  

The  respondents  feeling  aggrieved  from  the  judgment  and  order

passed by the trial Court, filed the Criminal Appeal before the High

Court challenging their conviction and sentence as aforesaid.

The stand before the High Court was that there is no evidence at

all  against  the  present  respondents  and  the  learned  Court  below

committed  an  error  in  holding  that  the  prosecution  by  means  of

circumstantial evidence has proved the guilt of the respondents beyond

doubt.

In  the  instant  case  there  is  no  eye  witness  account.  The

conviction  of  the  respondents  is  based  only  on  circumstantial

evidence. The learned Trial Judge while convicting the respondents

relied  upon  five  circumstances,  namely,  (i)  the  motive  behind  the

crime  was  teasing  of  the  deceased  by  the  accused  persons  and

thereafter they were scolded by the deceased, (ii) the accused persons

were seen on the date and time of the incident near the place of the

incident which led to their involvement, (iii) the police Dog Squad

proved the guilt of the accused persons, (iv) the witnesses had no

reason to implicate the accused persons falsely and (v) there is no

missing link in the prosecution story.

The  High  Court  held  that  the  circumstances  do  not  make  a

complete chain of circumstances.  There was no evidence to show that

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the accused were last seen in the company of the deceased. Merely

because they were seen near the place of incidence, that cannot be a

ground to show their involvement. The High Court noted that though

there  was  some  reference  to  the  alleged  extra  judicial  confession

before CW-1 by the accused Ram Bali, the said confessional statement

was not confronted to the accused while the statement of accused Ram

Balak  was recorded under Section 313 of the Code of the Criminal

Procedure, 1973 (in short ‘the Code’). The High Court also found that

the evidence of this witness was not believable. Accordingly, the High

Court directed acquittal.

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

submitted  that  there  is  a  complete  chain  of  circumstances  and

therefore  the  High  Court  ought  to  have  upheld  the  conviction  as

recorded by the trial Court.

4. It has been consistently laid down by this Court that where a

case rests squarely on circumstantial evidence, the inference of guilt

can  be  justified  only  when  all  the  incriminating  facts  and

circumstances are found to be incompatible with the innocence of the

accused or the guilt of any other person. (See Hukam Singh v. State of

Rajasthan AIR (1977 SC 1063);  Eradu and Ors. v.  State of Hyderabad

(AIR 1956 SC 316); Earabhadrappa v. State of  Karnataka  (AIR 1983 SC

446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder

Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v.

State of M.P. (AIR 1989 SC 1890). The circumstances from which an

inference as to the guilt of the accused is drawn have to be proved

beyond reasonable doubt and have to be shown to be closely connected

with  the  principal  fact  sought  to  be  inferred  from  those

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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.

5. We may also make a reference to a decision of this Court in C.

Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it

has been observed thus:

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

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

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7. 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.

8. Sir Alfred Wills in his admirable book “Wills’ Circumstantial

Evidence” (Chapter VI) lays down the following rules specially to be

observed in the case of circumstantial evidence: (1) the facts alleged

as the basis of any legal inference must be clearly proved and beyond

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

of proof is always on the party who asserts the existence of any fact,

which infers legal accountability; (3) in all cases, whether of direct

or circumstantial evidence the best evidence must be adduced which the

nature of the case admits; (4) in order to justify the inference of

guilt, the inculpatory facts must be incompatible with the innocence

of the accused and incapable of explanation, upon any other reasonable

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

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

acquitted”.

9. 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.   

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10. In  Hanumant  Govind  Nargundkar  and  Anr. V.  State  of  Madhya

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

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

11. 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:

(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

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(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.     

12. 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).

13. 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.”  

14. 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 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”.

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

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

[2005(12) SCC 438].  Factual position in the present case is almost

similar, so far as time gap is concerned.

16. Out of the circumstances highlighted above really none is of any

significance. Learned counsel for the appellant-State highlighted that

the  extra  judicial  confession  itself  was  sufficient  to  record  the

conviction. On a reading of the evidence of CW-1 it is noticed that

accused Ram Balak did not a say a word about his own involvement.  On

the  contrary  he  said  that  he  did  not  do  anything  and  made  some

statements about the alleged act of co-accused.  Additionally, in his

examination under Section 313 of Code, no question was put to him

regarding his so called extra judicial confession.  To add to the

vulnerability, his statement is to the effect that after about 11 days

of the incidence the extra judicial confession was made. Strangely he

stated that he told the police after three days of the incidence about

the extra judicial confession. It is inconceivable that a person would

tell the police after three days of the incidence about the purported

extra judicial confession which according to the witness himself was

made after eleven days.   

17. Learned counsel for the State submitted that there may be some

confusion. But it is seen that not at one place, but at different

places this has been repeated by the witness.  

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18. Learned counsel for the appellant also refers to a judgment of

this Court in Abdul Razak Murtaza Dafadar v. State of Maharashtra (AIR

1970 SC 283)  more particularly para 11 that the Dog Squad had proved

the guilt of the accused persons.  In this context it is relevant to

take note of what has been stated in para 11 which reads as follows:

“11.  It was lastly urged on behalf of the appellant that the lower courts ought not to have relied upon the evidence  of  dog  tracking  and  such  evidence  was  not admissible in order to prove the guilt of the appellant. The evidence of tracker dogs has been much discussed. In Canada and in Scotland it has been admitted. But in the United States there are conflicting decisions:

There have been considerable uncertainty in the minds of the Courts as to the reliability of dogs in identifying criminals and much conflict of opinion on the question of the admissibility of their actions in evidence. A survey of the cases however,  reveals  that  most  Courts  in  which the question  of  the  admissibility  of  evidence  of- trailing by blood-hounds has been presented take the position that upon a proper foundation being laid  by  proof  that  the  dogs  were  qualified  to trail  human  beings,  and  that  the  circumstances surrounding the trailer were such as to make it probable that the person  trailed was the guilty party,  such  evidence  is  admissible  and  may  be permitted to go to the jury for what it is worth as one of the circumstances which may tend to con- nect the defendant with the Crime. Pare 378, Am. Juris. 2nd edn. Vol. 29, p. 429.  

There are three objections which are usually advanced against the reception of such evidence. First, since it is manifest that the dog cannot go into the box and give his evidence on oath, and consequently submit himself to cross- examination, the dog's human companion must go into the box and report the dog's evidence, and this is clearly hearsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canine inferences. And, thirdly, it is suggested that even if such evidence is strictly admissible under the rules of evidence it should be excluded because it is likely to have a  dramatic  impact  on  the  jury  out  of  proportion  to  its value. In R. v. Montgomery, 1866 NI 160 a police constable observed men stealing wire by the side of a railway line. They ran away when he approached them. Shortly afterwards

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the police got them on a nearby road. About an hour and half later the police tracker dog was taken to the base of the telegraph pole and when he had made a few preliminary sniffs he  set  off  and  tracked  continuously  until  he  stopped  in evident perplexity at the spot where the accused had been put into the police car. At the trial it appeared that other evidence against the accused that they had been stealing the wire was inconclusive and that the evidence of the behaviour of the tracker dog was crucial to sustain the conviction. In these circumstances the Court of Criminal Appeal ruled that the evidence of the constable who handled the dog on its tracking  and  reported  the  dog's  reactions  was  properly admitted. The Court did not regard its evidence as a species of hearsay but instead the dog was described as "a tracking instrument'' and the handler was regarded as reporting  the movements  of  the  instrument,  in the  same  way  that  a constable in traffic case might have reported on the beha- viour of his speedometer. It was argued in that case that the tracker dog's evidence could be likened to the type of evidence  accepted  from  scientific  experts  describing chemical reactions, blood tests and the actions of bacilli. The comparison does not, however, appear to be sound because the  behaviour  of  chemicals,  blood  corpuscles  and  bacilli contains  no  element  of  conscious  volition  or  deliberate choice. But Dogs are intelligent animals with many thought processes similar to the thought processes of human beings and wherever you have thought processes there is always the risk of error, deception and even self-deception. For these reasons we are of the opinion that in the present state of scientific  knowledge  evidence  of  dog  tracking,  even  if admissible, is not ordinarily of much weight.”

19. It is submitted by learned counsel for the appellant that in the

said case this Court had upheld the conviction. Though in the said

case the conviction was upheld, but that was done after excluding the

evidence  of  Dog  Squad.   This  Court  found  that  the  rest  of  the

prosecution  evidence  proved  the  charges  for  which  the  appellants

therein had been convicted.  

20. Above being the position, there is no merit in this appeal which

is accordingly dismissed.    

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

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    .................................J.           (HARJIT SINGH BEDI)

New Delhi  October 3, 2008

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