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CASE NO.: Appeal (crl.)  210 of 2007

PETITIONER: Vinay D. Nagar

RESPONDENT: State of Rajasthan

DATE OF JUDGMENT: 03/03/2008

BENCH: P.P. NAOLEKAR & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.210 OF 2007

P.P. NAOLEKAR,J.

1.              This criminal appeal by special leave is directed   against the judgment and order dated 23.11.2004 passed by  the High Court of Rajasthan, Jaipur Bench in Criminal Appeal  (DB) No. 990/2002, which upheld the conviction and sentence  of the appellant under Sections 364, 450, 302, 201 of the Indian  Penal Code, 1860 (for short "I.P.C.").  2.              The relevant facts of the case as per the  prosecution are that Kalu (the deceased) was  Chowkidar in the  office of Agriculture Extension Bundi and his duty was during  the night in the office premises.  He was found missing under  mysterious circumstances on 15.07.2000, hence informant  Ramesh Chand Jain, Assistant Director lodged a written report  on 15.07.2000 at 7:30 am in the Police Station, Bundi.  On the  basis of the report, a case under Section 456/364 IPC was  registered and investigation commenced.  During the  investigation, it was revealed that Kalu was a star witness in a  criminal case registered against the appellant-Vinay D. Nagar  and others under Sections 365, 364, 328, 342, 323 IPC.  As per  the prosecution case, the accused along with his other  companions had abducted a child Sonu on 07.07.2000 and had  brought Sonu in the office where Kalu was Chowkidar and kept  him in the office for some time. The activities of the accused  and his companions made Kalu suspicious. Since Kalu had  seen the accused with Sonu and as the accused was a Clerk in  the same office where Kalu was posted as a Chowkidar, the  statement of Kalu was recorded by the Investigating Officer  under Section 161 of the Code of Criminal Procedure, 1973 (for  short "Cr.P.C."). The Investigating Officer moved an application  before the Magistrate  on 12.07.2000 to record the statement of  Kalu under Section 164 Cr.P.C. and  Kalu was to be produced  before the Magistrate on 17.07.2000, the date given by the  Magistrate. But in the intervening period, his dead body was  found in a tank on 19.07.2000.  The post mortem report  indicated that the death of the deceased was homicidal.  The  appellant-accused was arrested and put to trial. In his  statement under Section 313 Cr.P.C., he stated that on the  relevant date he had gone to Bombay, but the explanation was  found false in view of the evidence led by the prosecution  whereby it was found that he had gone to Ahmedabad and not  to Bombay.  The Session Court found the accused guilty and  convicted him.   3.              The accused preferred an appeal before the High  Court which was dismissed holding that in the fact- situation the

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deceased had seen the accused with Sonu and had named the  accused as the main culprit. The statement of Kalu was  recorded under Section 161 Cr.P.C. on 10.07.2000. On  09.07.2000, the accused absented himself from the office and  disappeared without submitting any leave application.   Later  on, Kalu was found dead on 19.07.2000.  It was held by the  High Court that the evidence collected by the prosecution  shows that the accused had a strong motive and the  opportunity for committing a crime.  The High Court further held  that the accused was absconding and hence the disappearance  of the accused after the occurrence was a relevant  circumstance which in the absence of plausible rebuttal  evidence can be taken into consideration.  The High Court was  of the view that from the aforesaid circumstances an inference  can be drawn towards the appellant’s guilt. All the  aforementioned circumstances taken cumulatively have formed  a chain so complete that there is no escape from the conclusion  that within all human probability the crime was committed by  the appellant and none else.  Hence, the appeal was dismissed  by the High Court. 4.              It is urged by Shri U.U. Lalit, learned senior counsel  for the appellant that the appellant’s conviction is based on  circumstantial evidence.  The prosecution has relied upon the  statement made by the deceased Kalu under Section 161  Cr.P.C. to prove the motive for commission of the crime.  As  per the learned senior counsel, the statement of Kalu under  Section 161 Cr.P.C. read with Section 32 of the Indian  Evidence Act, 1872, is not admissible and thus the courts below  have committed an error in relying on the statement made by  the deceased Kalu under Section 161 Cr.P.C. for the alleged  motive of the appellant to commit the crime.  It is further urged  that the prosecution has completely failed to prove the chain of  circumstances which should point to the guilt of the accused  and none else. 5.              This Court in several cases has expounded  principles for cases based on circumstantial evidence. In the  case of C. Chenga Reddy & Ors. v. State of Andhra  Pradesh, AIR 1996 SC 3390, this Court in para 20-A 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. \005"  

Further, in Padala Veera Reddy v. State of Andhra Pradesh  & Ors., 1989 (Supp) 2 SCC 706, 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

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of any other hypothesis than that of 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.    The principle of law is well established that where the evidence  is of a circumstantial nature, circumstances from which the  conclusion of guilt is to be drawn should in the first instance be  fully established, and the facts, so established, should be  consistent only with the hypothesis of the guilt of the accused.   The circumstances should be of a conclusive nature and they  should be such as to exclude hypothesis than the one proposed  to be proved.  In other words, there must be chain of evidence  so 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.   6.              The circumstances on which the reliance has been  placed by the prosecution are that Kalu was the prime witness  in Sonu’s kidnapping case and had made Section 161 Cr.P.C.  statement alleging that the accused was responsible for  abduction of Sonu; that it was apprehended by the appellant  that Kalu would make a statement before the Magistrate under  Section 164 Cr.P.C. on 17.07.2000 indicting the appellant,  hence the appellant-accused had strong motive to eliminate  Kalu; that the accused absented himself from the office from  10.07.2000 without taking leave; and that in his Section 313  Cr.P.C. statement he stated that he had gone to Bombay but it  was found out that he actually stayed in Ahmedabad under the  fictitious name in a hotel from 11.07.2000 to 12.07.2000 and  thereafter in another hotel till 14.07.2000; and that there was a  possibility of the accused reaching Bundi from Ahmedabad on  the date of the incident.  The fact that he stayed in Ahmedabad  under fictitious name has been relied upon by the prosecution  to show that his conduct was suspicious.  On 15.07.2000, Kalu  was found missing under suspicious circumstances and his  dead body was found on 19.07.2000.   7.              In the statement recorded by the police under  Section 161 Cr.P.C. in a case registered under FIR No.  290/2000, the deceased Kalu had stated that he was on duty  from 5.00 in the evening till 10.00 in the morning of 8.7.2000. At  about 8.30 p.m., two men came in a Maruti car and Vinay D.  Nagar, Cashier in his Department came on a motorcycle.  They  sat in the officer’s room and started making phone calls.  On  enquiry being made by him, the accused told him that he was  calling some acquaintance. Thereafter, he went to take meals  and when he returned after half an hour, all the three persons  were still there and they left in the same car at 9.00 p.m.  The  motorcycle of the accused was left there.  At 5.00 in the  morning, Vinay climbed over the gate and entered the office.   Vinay woke him up and took out the keys from the bag.  He  opened the main gate and brought the car inside.  He opened  the shutter in the verandah and the room.  First he took keys  and opened the computer room and then brought out one child  from the rear seat of the Maruti van and put him in the  computer room.  That child was kept lying in the computer room  for 10-15 minutes.  Then after 10-15 minutes they came out of  that room and all three of them put the child in the  Maruti van  and left.  He stated that he had read the newspaper and learnt  from others that last night one boy had been abducted.  He  stated that he could identify all four persons who had come to  him.   8.              It is urged by the learned senior counsel that the  statement recorded by the police under Section 161 Cr.P.C. of  the deceased in abduction case is not admissible under Section

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162 Cr.P.C. and, therefore, the prosecution could not have  relied upon the statement of the deceased Kalu recorded by the  police.   9.              The question is whether the statement recorded  under Section 161 Cr.P.C. of the deceased Kalu in a case  registered under FIR No. 290/2000 (abduction case) is  admissible in the case registered under FIR No. 301/2000  (murder trial) in view of the provisions of Section 162 Cr.P.C.   Section 162 Cr.P.C. reads as under: "162.  Statements to police not to be signed: Use of  statements in evidence. \026 (1) No statement made by  any person to a police officer in the course of an  investigation under this chapter, shall, if reduced to  writing, be signed by the person making it; nor shall any  such statement or any record thereof, whether in a police  diary or otherwise, or any part of such statement or  record, be used for any purpose, save as hereinafter  provided, at any inquiry or trial in respect of any offence  under investigation at the time when such statement was  made:

       Provided that when any witness is called for the  prosecution in such inquiry or trial whose statement has  been reduced into writing as aforesaid, any part of his  statement, if duly proved, may be used by the accused,  and with the permission of the Court, by the prosecution,  to contradict such witness in the manner provided by  section 145 of the Indian Evidence Act, 1872; and when  any part of such statement is so used, any part thereof  may also be used in the re-examination of such witness,  but for the purpose only of explaining any matter referred  to in his cross-examination.

       (2) Nothing in this section shall be deemed to apply  to any statement falling within the provisions of clause (1)  of section 32 of the Indian Evidence Act, 1872, or to affect  the provisions of section 27 of that Act.

       Explanation.- An omission to state a fact or  circumstance in the statement referred to in sub-section  (1) may amount to contradiction if the same appears to be  significant and otherwise relevant having regard to the  context in which such omission occurs and whether any  omission amounts to a contradiction in the particular  context shall be a question of fact."

On account of Section 162 Cr.P.C., a statement made by any  person to a police officer in the course of investigation under  Chapter XII, if reduced into writing, will not be signed by the  person making it, nor such statement recorded or any part  thereof be used for any purpose at any inquiry or trial in respect  of any offence under investigation at the time when such  statement was made.  Such statement may be used by an  accused and with the permission of the Court by the  prosecution to contradict the witness whose statement was  recorded by the police in the manner provided under Section  145 of the Indian Evidence Act and can also be used for re- examination of such witness for the purpose only of explaining  any matter referred to in his cross-examination.   Bar of Section  162 Cr.P.C. of proving the statement recorded by the police  officer of any person during investigation however shall not  apply to any statement falling within the provision of clause (1)  of Section 32 of the Evidence Act, nor it shall affect Section 27  of the Evidence Act.  Bar of Section 162 Cr.P.C. is in regard to  the admissibility of the statement recorded of a person by the

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police officer under Section 161 Cr.P.C. and by virtue of  Section 162 Cr.P.C. would be applicable only where such  statement is sought to be used at any inquiry or trial in respect  of any offence under investigation at the time when such  statement was made.   10.             In the case of Khatri and Others v. State of Bihar  & Ors., AIR 1981 SC 1068, this Court has held that Section  162 Cr.P.C. bars the use of any statement made before the  police officer in the course of an investigation under Chapter  XII, whether recorded in the police diary or otherwise.   However, by the express terms of Section, this bar is applicable  only where such statement is sought to be used ‘at any inquiry  or trial’ in respect of any offence under investigation at the time  when such statement was made. If the statement made before  a police officer in the course of an investigation under Chapter  XII is sought to be used in any proceeding, inquiry or trial in  respect of an offence other than which was under investigation  at the time when such statement was made, the bar of Section  162 will not be attracted.   11.             When the statement of Kalu was recorded by the  police officers under Section 161 Cr.P.C. during the  investigation of abduction case of a boy, Kalu was alive and  thus that statement could be used in the subsequent  investigation that was being made with respect to the alleged  murder of Kalu.      12.             It is then urged by the learned senior counsel that  even on lifting of Section 162 bar, it by itself will not make the  statement of Kalu recorded by the police admissible in  evidence.  Statement can be admitted in evidence only by  virtue of any of the provisions contained in the Evidence Act.   Therefore, even if the Section 162 bar would not apply to Kalu’s  161 statement, would it be admissible in evidence.  Then the  next step would be to see as to under which provision of the  Evidence Act, the same shall be admissible.  According to the  learned senior counsel, the statement of a person who is not  alive for the purpose of cross-examination in case need arises,  would be admissible only if it falls within the four corners of  Section 32 of the Indian Evidence Act.  13.             Section 32 of the Indian Evidence Act enumerates  eight clauses in which the statements made by a dead person  or a person who cannot be found or who has become incapable  of giving evidence or whose attendance cannot be procured in  court can be admitted in evidence.  Clauses (2) to (8) of Section  32 are not material for the purpose of deciding the present  case.  The relevant provision reads as under: "32.  Cases in which statement of relevant fact by  person who is dead or cannot be found, etc., is  relevant. - Statements, written or verbal, of relevant facts  made by a person who is dead, or who cannot be found,  or who has become incapable of giving evidence, or  whose attendance cannot be procured, without an  amount of delay or expense which under the  circumstances of the case appears to the Court  unreasonable, are themselves relevant facts in the  following cases:-   (1) When it relates to cause of death.- When the  statement is made by a person as to the cause of  his death, or as to any of the circumstances of the  transaction which resulted in his death, in cases in  which the cause of that person’s death comes into  question.

       Such statements are relevant whether the  person who made them was or was not, at the time

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when they were made, under expectation of death,  and whatever may be the nature of the proceeding  in which the cause of his death comes into  question."

        Clause (1) says that when a statement is made by a person as  to the cause of his death or as to any of the circumstances of  the transaction which resulted in his death, such statement  would be relevant.  So the  question is whether the statement  made by deceased Kalu under Section 161 Cr.P.C. in previous  investigation would be admissible as per the second part of  Section 32(1) of the Evidence Act which says that the  statement made by a person as to the ‘circumstances of the  transaction which resulted in his death’ would be admissible  and whether the deceased’s statement under Section 161  Cr.P.C. falls under ‘circumstances of the transaction which  resulted in his death’. 14.             In the case of Pakala Narayana Swami v.  Emperor, AIR 1939 PC 47, it was held that a statement merely  suggesting motive for a crime cannot be admitted in evidence  unless it is so intimately connected with the transaction itself as  to be a circumstance of the transaction. In the case of Sharad Birdhichand Sarda v. State of  Maharashtra, AIR 1984 SC 1622, this Court in para 21  held as  under:         "Thus, from a review of the authorities mentioned  above and the clear language of Section 32(1) of the  Evidence Act, the following propositions emerge:         (1) Section 32 is an exception to the rule of hearsay  and makes admissible the statement of a person who  dies, whether the death is a homicide or a suicide,  provided the statement relates to the cause of death, or  exhibits circumstances leading to the death. In this  respect, as indicated above, the Indian Evidence Act, in  view of the peculiar, conditions of our society and the  diverse nature and character of our people, has thought it  necessary to widen the sphere of S. 32 to avoid injustice.         (2) The test of proximity cannot be too literally  construed and practically reduced to a cut-and-dried  formula of universal application so as to be confined in a  strait-jacket. Distance of time would depend on vary with  the circumstances of each case. For instance, where  death is a logical culmination of a continuous drama long  in process and is, as it were, a finale of the story, the  statement regarding each step directly connected with the  end of the drama would be admissible because the entire  statement would have to be read as an organic whole and  not torn from the context.  Sometimes statements relevant  to or furnishing an immediate motive may also be  admissible as being a part of the transaction of death. It is  manifest that all these statements come to light only after  the death of the deceased who speaks from death. For  instance, where the death takes place within a very short  time of the marriage or the distance of time is not spread  over more than 3-4 months the statement may be  admissible under S. 32.         (3) The second part of Cl. (1) of S. 32 is yet another  exception to the rule that in criminal law the evidence of a  person who was not being subjected to or given an  opportunity of being cross-examined by the accused,  would be valueless because the place of cross- examination is taken by the solemnity and sanctity of oath  for the simple reason that a person on the verge of death  is not likely to make a false statement unless there is

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strong evidence to show that the statement was secured  either by prompting or tutoring.         (4) It may be important to note that Section 32 does  not speak of homicide alone but includes suicide also,  hence all the circumstances which may be relevant to  prove a case of homicide would be equally relevant to  prove a case of suicide.         (5) Where the main evidence consists of statements  and letters written by the deceased which are directly  connected with or related to her death and which reveal a  tell-tale story, the said statement would clearly fall within  the four corners of Section 32 and, therefore, admissible.  The distance of time alone in such cases would not make  the statement irrelevant."

Further, in the case of Rattan Singh v. State of Himachal  Pradesh, AIR 1997 SC 768, this Court has held as under: "Section 32(1) of the Evidence Act renders a statement  relevant which was made by a person who is dead in  cases in which cause of his death comes into question,  but its admissibility depends upon one of the two  conditions: Either such statement should relate to the  cause of his death or it should relate to any of the  circumstances of transaction which resulted in his death.   The collocation of the words in Section 32(1)  "circumstances of the transaction which resulted in his  death" is apparently of wider amplitude than saying  "circumstances which caused his death".  There need not  necessarily be a directed nexus between "circumstances"  and "death".  It is enough if the words spoken by the  deceased have reference to any of the transactions which  ended up in the death of the deceased.  Such statement  would also fall within the purview of Section 32(1) of the  Evidence Act.  In other words, it is not necessary that  such circumstance should be proximate, for, even distant  circumstances can also become admissible under the  sub-section, provided it has nexus with the transaction  which resulted in the death."

                                                       (Headnote-B)

In the case of Kans Raj v. State of Punjab & Ors., AIR 2000  SC 2324, a 3-Judge Bench of this Court dealt with Section  32(1) statement made by the deceased who had allegedly died  due to dowry harassment and in para 10 held as under: "Section 32 of the Evidence Act is an exception to the  general rule of exclusion of hearsay evidence and the  statements of a person, written or verbal, of relevant  facts, after his death are admissible in evidence if they  refer to the cause of his death or to any circumstances of  the transaction which resulted in his death.  To attract the  provisions of Section 32, for the purposes of admissibility  of the statement of a deceased the prosecution is  required to prove that the statement was made by a  person who is dead or who cannot be found or whose  attendance cannot be procured without an amount of  delay or expense or he is incapable of giving evidence  and that such statement had been made under any of the  circumstances specified in sub-sections (1) to (8) of  Section 32 of the Act.  Section 32 does not require that  the statement sought to be admitted in evidence should  have been made in imminent expectation of death. The  words "as to any of the circumstances of the transaction  which resulted in his death" appearing in Section 32  must  have  some proximate relation to the actual occurrence.

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In other words, the statement of the deceased relating to  the cause of death or the circumstances of the transaction  which resulted in his death must be sufficiently or closely  connected with the actual transaction. To make such  statement as substantive evidence, the person or the  agency relying upon it is under a legal obligation to prove  the making of such statement as a fact. If it is in writing,  the scribe must be produced in the Court and if it is  verbal, it should be proved by examining the person who  heard the deceased making the statement. \005"            15.             We have analysed the statement of the deceased  Kalu made to the police under Section 161 Cr.P.C.  We do not  find that the statement of the deceased was in regard to the  cause of his death, or as to any of the circumstances of the  transaction which resulted in his death.  The statement is in  regard to the accused’s involvement in the abduction of a boy  and has no remote connection or reference to the death of the  deceased and thus would not be admissible under Section 32  of the Evidence Act.  The statement recorded by the police  although could be proved as there would not be any bar under  Section 162 Cr.P.C. for proof of such statement, but it would  not be admissible under Section 32 of the Evidence Act, and  thus it could not have been relied upon by the prosecution to  prove the motive for commission of the crime by the accused  appellant.  16.             We have gone through the evidence placed on  record by the prosecution.  None of the witnesses  stated that  at the relevant time and/or relevant date, they had seen the  accused at Bundi.  The witnesses examined by the prosecution  have proved the fact that the accused stayed at some of the  hotels in Ahmedabad, but there is no proof of the fact that he  checked in the hotel(s) giving the fictitious name.  There is no  proof of the accused being last seen with the deceased.  The  prosecution has failed to prove the accused’s presence on the  date of the incident at Bundi.  The evidence adduced by the  prosecution does not point to the guilt of the accused.  The  circumstances on which the High Court has placed reliance do  not establish the guilt of the accused, nor does it exclude every  hypothesis but the one proposed to be proved by the  prosecution.  The prosecution has failed to prove the chain of  evidence by which one could clearly and unequivocally reach to  the conclusion of pointing the guilt of the accused-appellant for  commission of the crime.        17.             For the aforesaid reasons, the appeal is allowed.  The judgment of the High Court and that of the Session Court  are set aside. The accused-appellant is directed to be set at  liberty if he is not required in any other case.