Padala Veera Reddy v State of Andhra Pradesh and Others
Supreme Court of India

26 October 1989
Cr.A. No. 420 of 1989
The Judgment was delivered by: RATNAVEL PANDIAN, J.
1.  This criminal appeal is directed against the judgment of the High Court to Andhra Pradesh, rendered in Criminal Appeal No. 544 of 1987 partly allowing the appeal by setting aside the convictions of respondents 2 to 4 (accused Nos. 1 to 3) u/s. 302 read with S. 34 of I.P.C. and Section 498-A, I.P.C. and the sentence of imprisonment for life and the sentence of one year rigorous imprisonment respectively but retaining the conviction of the respondents 2 to 4 u/s. 201 read with S. 34 of I.P.C. and the sentence of three years rigorous imprisonment as against respondents 2 and 3 (accused 1 and 2) but reducing the sentence of imprisonment inflicted on respondent No. 4 (A-3) to the period already undergone and in lieu of the unserved portion of the sentence, imposing a fine of Rs.1000/- in default to suffer rigorous imprisonment for three moths.
2.  The relevant facts of the case giving rise to this appeal are necessary to be recapitulated for the disposal of this appeal.
3.  Before the trial Court, there were four accused namely respondents 2 to 4 and one Mallidi Pada Kapu alias Venkata Reddy (accused 4) who stood convicted under Section 201, I.P.C. and sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for a further period of 3 months and who is not a respondent in this appeal. For the sake of convenience, we shall refer respondents 2 to 4 in this judgment as accused Nos. 1 to 3 as arrayed before the trial Court.
4.  The second and third accused are the father and mother of the first accused. The first accused married the deceased, Vijaya, daughter of P.W. 8 (the appellant herein) on 10-5-79 at Tirumala hills. P.W. 9 is the brother of the deceased. All the accused are residents of Komaripalem. The appellant is the resident of Rayavaram. At the time of the marriage, the appellant gave sufficient cash and gold to the deceased. As the deceased was aged about 12 years at the time of her marriage she stayed with her parents till she attained her puberty and thereafter was sent to her marital home. The case of the prosecution is that the deceased used to complain to her father and that her husband and in-laws were pressing hard to get some landed property towards her dowry. When the appellant made enquiries about her daughter's complaints, the accused abused and tried to beat him.
5. In 1985 during the second crop season, the accused 1, 2 and 4 along with the deceased forcibly harvested the crop standing in the land of the appellant. It is stated that the deceased even went to the extent of filing a suit against her father, the appellant (P.W. 8) and brother (P.W. 9) claiming that the land in dispute was in her possession. Her brother P.W. 9 in turn filed a suit against the deceased and P.W. 8. The appellant filed a criminal complaint against the deceased and the accused persons. Thus, there were civil and criminal proceedings between the parties.
6.  On the intervening night of 6/7th September, 1985 the accused 1 to 3 are said to have attended the marriage celebrated in the house of P.W. 1 and remained in the marriage house till morning of 7th September and when they came back to their house they, to their shock and surprise, found number of people gathered in front of their house and the body of the deceased lying in an easy chair. The fourth accused who is not a respondent in this appeal went to the police station and gave the report Ex. 14 to the Head Constable. Some nail marks and swelling over the neck, lips, chin and nose were noticed on the dead body. A tin covered with a cap and pasted with a label inscribed 'Democran' (i.e. pesticide) was found by the side of the dead body. The fourth accused stated in Ex. P-14 that the deceased had committed suicide. P.W. 10 registered the report. Thereafter, P.Ws. 10 and 11 reached the scene and took up investigation.
7.  In the meanwhile, the appellant and P.W. 9 on receipt of the jarring information about the death of the deceased came to the scene village. During the investigation, the first accused handed over three letters Exs. P-6 to P-8 said to have been written by the deceased to her father. These letters were seized under Ex. P-5. P.W. 10 held the inquest and during the course of which he examined P.Ws. 8 and 9 and others. As suspicion was entertained over the death of the deceased, the dead body was sent for post-mortem examination. P.Ws. 5 and 6, the Medical Officers conducted autopsy and found some external injuries. The medical officers sent the viscera and some of the part of the dead body namely liver, kidney for chemical examination. After the receipt of the chemical examiner's report both P.Ws. 5 and 6 gave their opinion that the death was due to poisoning and smothering i.e. asphyxia. Further investigation was taken by P.W. 13 and thereafter by P.W. 14. All the accused were arrested. After completing the investigation, charge-sheet was laid. On the side of prosecution P.Ws. 1 to 14 were examined.
8.  All the accused denied their complicity with the offence in question and stated that the relationship between the deceased and the accused was on cordial terms, that on the ill-fated night they were all in the marriage house of P.W. 1 and that this case is foisted against them by the appellant on account of the long-standing enmity. The trial Court accepting the evidence let in by the prosecution convicted A-1 to A-3 under the respective charges and sentenced them as aforementioned. On being aggrieved, the accused 1 to 3 filed criminal appeal No. 544 of 1987 and the fourth accused who stood convicted only under Section 201, I.P.C. preferred criminal appeal No. 576 of 1987. Both the appeals were disposed of by the High Court by the impugned common judgment.
9.  The State has not preferred any appeal against the order of acquittal of A-1 to A-3 of the charges punishable u/s. 302 read with Ss. 34 and 498-A of the Indian Penal Code; but this present appeal is by P.W. 8, the father of the deceased.
10.  Mr. Sitaramiah, the learned senior counsel appearing on behalf of the appellant took us very meticulously through the judgments of the trial Court as well of the Appellate Court and strenuously contended that the reasons given by the appellate Court for recording an order of acquittal of the offence of murder are perverse and difficult to comprehend and the Appellate Court has over-looked the important and vital facts which tend to show that the show that the circumstances established are consistent only with the hypothesis of guilt of the accused.
According to him, the chain of evidence is complete leaving no reasonable ground for drawing a conclusion consistent with the innocence of the accused. It is further submitted that the unrealistic and false plea put forth by the accused stating that none of them was present in the house on the ill-acted night is itself an additional circumstance lending support to the other impelling circumstances unfailingly pointing out the guilt of the accused. The first respondent, State of Andhra Pradesh sails with the appellant supporting the arguments advanced by Mr. Sitaramiah.
11. Mr. P. Krishna Rao, learned counsel appearing on behalf of the respondents 2 to 4 (Accused 1 to 3) countered the above argument, submitting that the judgment of the Appellate Court is based on sound reasoning and that the totality of the evidence adduced by the prosecution, if at all proves anything it may create only a suspicion against the appellants and that no conviction, as rightly pointed out by the Appellate Court, can be safely recorded on such suspicion or conjecture.
12.  Before adverting to the arguments advanced by the learned counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecutions rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held 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.
(Gambhir v. State of Maharashtra, 1982 Indlaw SC 27 : 1982 Indlaw SC 27), Rama Nand v. State of Himachal Pradesh, 1981 Indlaw SC 129 : 1981 Indlaw SC 129), Prem Thakur v. State of Punjab, 1982 Indlaw SC 144 : 1982 Indlaw SC 144), Earabhadrappa v. State of Karnataka, 1983 Indlaw SC 161 : 1983 Indlaw SC 161), Gian Singh v. State of Punjab, 1986 Indlaw SC 487 : 1986 Indlaw SC 487), Balvinder Singh v. State of Punjab, 1986 Indlaw SC 35 : 1986 Indlaw SC 35).
13.  Bearing the above principle of law enunciated by this Court we shall scrutinise scrupulously and examine carefully the circumstances appearing in this case with serious and onerous responsibility imposed on this Court.
14.  There are certain salient and material features in the present case which are not controverted; they being that A-1 to A-3 and the deceased lived under a common roof, that the deceased had instituted a civil suit against her father, P.W. 8 and brother P.W. 9 claiming exclusive possession of the disputed land, that the deceased was found dead on the morning of 7-9-85 and that there were certain visible injuries such as abrasions, nail marks and contusions of the part of the nose, upper lip, chin and neck etc. as noted by the Medical Officers (P.Ws. 5 and 6) in the post-martem report Ex. P-9. The appellate Court on the strength of the opinion given by the Medical Officers (P.Ws. 5 and 6) had agreed with the view of the trial Court that the death of the deceased was homicidal one and not suicidal and held "therefore suicidal is ruled out". We also very carefully went thought the evidence of the Medical Officers and found that the prosecution has convincingly established that the death of the deceased was due to forcible administration of poison and smothering. Hence we are in full agreement with the concurrent findings of the Courts below that it is a clear case of murder.
15.  The next important question is whether the circumstances attending case do satisfactorily and unerringly establish the guilt of the accused 1 and 3 or any of them so as to incriminate them with the heinous crime of murder and the offence of cruelty within the mischief of Section 498-A, I.P.C. The learned counsel appearing on behalf of the appellant seeks to draw an inference of guilt of the accused on the following circumstances:
(1) The demand of the deceased requesting her father to settle the landed property in her name and her subsequent filing of the civil suit in the year 1985 i.e. within a period of 6 years since her marriage indicate that the accused should have pressurised the deceased to take a hostile attitude towards her father so that they could grab the property.
(2) The very fact that the deceased who was in her prime of youth did not accompany her husband and in laws to attend the marriage celebrated and in the house of P.W. 1, situated just opposite to the accused's house shows that there was no cordial relationship between the deceased and the accused and the deceased was not leading a happy marital life.
(3) The facts that the victim was alive when all the accused are said to have left their house to attend the marriage and she was done away with only during the intervening night of 6th/7th September, 1985 are not in dispute.
(4) The fact that the deceased was found dead lying on an easy chair indicates that the dead body should have been brought and laid on the easy chair by someone else.
(5) The presence of a tin container covered with a cap and pasted with a label inscribed 'Democran' (i.e. pesticide) near the easy chair which on chemical examination was not found to contain any poisonous substances shows that someone had kept the tin near the dead body so as to create a false impression in the minds of others that the victim had consumed the poison and committed suicide.
(6) The presence of the injuries namely semicircular abrasions resembling that of human nail marks over the upper parts of her lip, nose and chin, to contusions over the front of neck, the congestion of the protruding eye balls and the presence of bluish, black discolouration from the right angle of the mouth extending to right side of neck unequivocally lead to a decisive conclusion that the deceased had been over-powered by the assailants and the poison was administered to her by forcibly opening her mouth and closing the nose and pressing the neck so as to make the victim to gulp the poison and in that process more than one person should have participated. This view is fortified by the final opinion given by the doctors stating that death might have been caused due to the combined effect of asphyxia due to smothering and poisoning democran.
(7) The conduct of the first accused in handing over three letters Ex. P6 to P8, alleged to have been written by the deceased herself, to the Investigating Officer on 7-9-85 at the scene house itself is yet another circumstance showing that the accused has by a concerted pre-plan manipulated a defence theory of suicide so as to escape from the culpability of the crime. The defence of the accused that they were at the marriage house from 8.00 p.m. on 6-9-85 till the morning of 7-9-85 is patently false and unrealistic since the house of P.W. 1 where the marriages was conducted is almost opposite to the house of the accused. This plea of the accused is too big a pill to be swallowed.
(8) The introduction of the patently false averments in Ex. P-14 by accused 4 that deceased had committed suicide should have been made only at the instance of A-1 to A-3 and this conduct of the accused clearly indicates that the accused had pre-planned and calculated a false theory of defence presumably due to an earlier deliberation and consultation with the local M.L.A.
16.  According to the learned defence counsel, the totality of the above circumstances unerringly, unfailingly and unshakably prove that the accused 1 to 3 alone were the perpetrators of this heinous crime of murder and none else.
17.  While considering the above circumstances, the appellate Court has expressed its view that the explanation given by the accused that they were at the marriage house of P.W. 1 throughout the night is nothing but a false explanation and the culprits whoever they might have been should have administered the poison to the victim and there by caused her death and that there is very strong suspision against the accused persons but the prosecution cannot be said to have established the guilt of the accused decisively since the suspicion cannot take the place of legal proof. The relevant portion of the final conclusion of the appellate Court reads thus:
"There is no evidence whatsoever either from the neighbours or from others to show that the accused at any time ill-treated the deceased or treated her cruelly. In these circumstances, it is not possible to hold that the prosecution has established the guilt on the part of A-1 to A-3. Thus, there is no conclusive evidence that the accused committed the offence of murder. It is unfortunate case where cold-blooded murder has been committed and it is difficult to believe that no inmate of the house had any hand in the offence of murder. But that will be only a suspicion which cannot take the place of proof."
18.  We, in evaluating the circumstantial evidence available on record on different aspects of the case, shall be the foremost watchfully examine whether the accused 1 to 3 had developed bad-blood against the deceased to the extent of silencing her for ever, that too in a very inhuman and horrendous manner. The appellant wants us to infer that the deceased should have been subjected to all kinds of pressures and harassments and compelled to institute the suit against her father and brother claiming exclusive right over the landed property in order to grab the said property, that this conduct of the accused should have been resented by the deceased and that on that score the accused should have decided to put an end to her life. In our view, this submission has no merit because there is no acceptable evidence showing that there was any quarrel in the family and that the deceased was ill-treated either by her husband or in-laws. The appellate Court while dealing with this aspect of the case has observed that there is no evidence that the accused ill-treated the deceased, which observation we have extracted above. Hence, we hold that there is no sufficient material to warrant a conclusion that the accused had any motive to snatch away the life thread of deceased. There is no denying the fact that the deceased did not accompany her husband and in-laws to attend the marriage celebrated in the house of PW-1 and remained in the scene house and that she has been done away with on the intervening night of 6th/7th September, 1985. From this circumstance, the Court will not be justified in drawing any conclusion that the deceased was not leading a happy marital life.
19. As observed by the appellate Court, the explanation offered by accused 1 to 3 that they remained in the house of PW-1 throughout the night is too big a pill to be swallowed. But at the same time, in our view this unacceptable explanation would not lead to any irresistible inference that the accused alone should have committed this murder and have come forward with this false explanation. We have no hesitation in coming to the concession that it is a case of murder but to a suicide as we have pointed out supra. The placing of the tin container with the inscription 'Democran' by the side of the dead body is nothing but a planted one so as to give a misleading impression that the deceased had consumed poison and committed suicide. But there is no evidence as to who had placed the tin container by the side of the dead body.
Even if we hold that the perpetrators of the crime whoever might have been had placed the tin, that in the absence of any satisfactory evidence against the accused would not lead to any inference that these accused or any of them should have done it. It is the admitted case that the first accused handed over three letters Exs. P-6 to P-8 alleged to haves been written by the deceased to the Investigating Officer. The sum and substance of these letters are to the effect that the deceased had some grouse against her parents and that the accused were not responsible for her death. The explanation given by accused No. 1 in this written statement is that by about the time of the arrival of the police, one Sathi Presada Reddy handed over these letters to him saying that he (Reddy) found them near the place when the dead body was laid and that he (A-1) in turn handed over them to the police. PWs. 8 and 9 have deposed that these letters are not under the hand-writing of the deceased. But the prosecution has not taken any effort to sent the letters to any handwriting expert for compression with the admitted writings of the deceased with the writing found in Exs. P-6 to P-8. Under these circumstances, no adverse inference can be drawn against accused No. 1 on his conduct in handing over these letters.
20.  No doubt, this murder is diabolical in conception and cruel in execution but the real and pivotal issue is whether the totality of the circumstances unerringly establishes that all the accused or any of them are the real culprits. The circumstances indicated by the learned counsel undoubtedly create a suspicion against the accused. But would these circumstances be sufficient to hold that the respondents 2 to 4 (accused 1 to 3) had committed this heinous crime. In our view, they are not.
21.  There are series of decisions holding that no one can be convicted on the basis of mere suspicion, however, strong it may be. Though we feel it is not necessary to recapitulate all those decisions we will refer to a few on this point.
22.  This Court in Palvinder Kaur v. State of Punjab, 1952 Indlaw SC 50 : 1952 Indlaw SC 50) has pointed out that in cases depending on circumstantial evidence Courts should safeguard themselves against the danger of basing their conclusion on suspicions howsoever strong.
23.  In Chandrakant Ganpat Sovitkar v. State of Maharashtra, 1974 Indlaw SC 481 : 1974 Indlaw SC 481) it has been observed:
"It is well settled that one one can be convicted on the basis of mere suspicion, though strong it may be. It also cannot be disputed that when we take into account the conduct of an accused, his conduct must be looked at in its entirety."
24.  In Sharad Birdhichand Sarda v. State of Maharashtra, 1984 Indlaw SC 432 : 1984 Indlaw SC 432), this Court has reiterated the above dictum and pointed out that the suspicion, however, great it may be, cannot take the place of legal proof and that "fouler the crime higher the proof."
25.  We are of the firm view that the circumstances appearing in this case when examined in the light of the above principle enunciated by this Court do not lead to any decisive conclusion that either all these accused or any of them had committed the murder of the deceased, Vijaya punishable u/s. 302 read with S. 34 of I.P.C. or the offence of cruelty within the mischief of Section 498-A, I.P.C.
26. Hence, viewed from any angle, the judgment of the appellate Court does not call for interference. The appeal is dismissed accordingly.
Appeal dismissed.


State of Haryana v Jagbir Singh and Another
Supreme Court of India

26 September 2003
Appeal (Cr.) 1721 of 1996 with Cr.A. Nos. 1237-1238/2003 (Arising out of S.L.P. (Cr.) Nos. 1076-1077/1996)
The Judgment was delivered by : Arijit Pasayat, J.
Leave granted in SLP (Crl.) Nos. 1076-1077/1996.
1.  Questioning legality of judgment rendered by a Division Bench of the Punjab and Haryana High Court, Criminal Appeal No. 1721 of 1996 has been filed by the State of Haryana. The other two appeals are by the informant. An innocent child of about 4 years was the victim of unnatural death. According to the prosecution, respondents caused his homicidal death after kidnapping him. The motive for the killing was stated to be intended demand of ransom for his release. The Sessions Judge, Bhiwani found the respondent-accused Jagbir Singh to be guilty of offences punishable u/s. 302 IPC. He was also convicted for offence punishable under Sections 364, 201 and 384 of the Indian Penal Code, 1860 (in short the 'IPC'). For the offence punishable u/s. 302 IPC he was awarded death sentence and for other offences period of sentence already undergone in custody. Accused Umed Singh was convicted for offences punishable u/s. 201 IPC and was directed to suffer RI for 3 years and fine. Both the accused persons preferred appeal before the High Court. The High Court by the impugned judgment found them not guilty.
2.  According to the prosecution, death of the victim was on 6.9.1991 and passing through a chain of incidents and happenings, finally the First Information Report was lodged on 9.9.1991. In between, a ransom letter meant for somebody else was found in torn condition and that led to suspicion against the accused-respondents. Accused-Jagbir is related to Daya Nand (PW7), a teacher. It appears that on account of several circumstances, the villagers thought that accused-Jagbir was responsible for disappearance of the child. He was given time to produce the child. A ransom note was found to be in the hand writing of accused-Jagbir and he is stated to have pointed out the place where the dead body was buried in his house and also on the basis of his information certain articles were recovered. It was also the version of PW7 that at a point of time, accused-Jagbir was taken to the police with the material indicating his complicity in the alleged incident. But the police did not arrest him and left him off. It was pointed out there was grave doubt about the manner in which the investigation was being conducted, and alleged inaction of police. On completion of investigation charge sheet was placed and accused faced trial. The case before the Trial Court was based on circumstantial evidence. The circumstances which according to the prosecution established guilt of the accused are as follows:
(1) The ransom notes were in the handwriting of the accused- Jagbir Singh;
(2) There was extra-judicial confession before PW-10 and;
(3) Recovery of dead body on the basis of information given by the accused while in custody in terms of S. 27 of the Evidence Act, 1872 (for short 'the Evidence Act).
3.  The Trial Court found the above circumstances sufficient for establishing guilt of the accused persons for the offences alleged. In appeal, the High Court upset the findings and held the accused persons not guilty.
4.  In support of the appeals, learned counsel for the State and the informant submitted that the High Court's approach was erroneous. It failed to notice that the police was adopting a partisan role and the evidence of witnesses brought on record was in a particular line. The investigation was done otherwise and the police did not place adequate material before the Court. It was pointed out that the ransom note has been erroneously discarded by the High Court. It should have noticed that the accused-Jagbir accepted the handwriting to be his and, therefore, the handwriting expert's report was available to be used against the accused; particularly when the handwriting was given voluntarily for comparison. Further the extra judicial confession before PW-10 has been discarded without any reasonable basis. Finally, when the dead body was recovered from the house of the accused on the basis of the information given while in custody, the High Court should have relied upon the same.
5.  There was no appearance for the respondents-accused when the matter was taken up for hearing, though the respondents had appeared through their counsel, and the cause list indicated name of the counsel.
6.  It is unfortunate that an innocent child has lost his life but the crucial question is whether the accused persons were responsible for his death and the prosecution was able to prove its claims beyond reasonable doubt. As stated earlier the case rests on circumstantial evidence.
7.  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 1977 Indlaw SC 433); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316 1955 Indlaw SC 108); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446 1983 Indlaw SC 161); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224 1985 Indlaw SC 71); Balwinder Singh v. State of Punjab (AIR 1987 SC 350 1986 Indlaw SC 35); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890 1989 Indlaw SC 443). 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 1954 Indlaw SC 188), 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.
8.  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 1996 Indlaw SC 3059, 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....".
9.  In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79 1989 Indlaw SC 31), 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.
In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104 1992 Indlaw SC 107), 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.
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".
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 1952 Indlaw SC 89), 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."
12.  A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622 1984 Indlaw SC 432). 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
(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 recently highlighted in State of Rajasthan v. Rajaram (2003 AIR SCW 40972003 Indlaw SC 630)
14.  We shall examine the circumstances highlighted. So far as ransom notes are concerned, prosecution sought to rely upon the report given by the handwriting expert. It appears that the accused was taken before Addl. Chief Judicial Magistrate, Bhiwani. According to him, on 10.9.1991 the accused was brought before him in custody for giving his specimen signature u/s. 73 of the Evidence Act. It was noticed by this Court in State of Uttar Pradesh v. Ram Babu Misra AIR 1980 SC 791 1980 Indlaw SC 326) that the Chief Judicial Magistrate has no power to direct the accused to give his specimen signature for comparison during investigation. S. 73 of the Evidence Act reads as follows:
"Section 73- Comparison of signature, writing or seal with others admitted or proved: In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
The Court may direct any person present in court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
This section also applies, with any necessary modifications, to finger-impressions".
15.  The second paragraph of S. 73 enables the Court to direct any person present in the Court to give specimen writings 'for the purpose of enabling the Court to compare' such writings with writings alleged to have been written by such person. The clear implication of the words 'for the purpose of enabling the Court to compare' is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of enabling the Court to compare and not for the purpose of enabling the investigating or other agency 'to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of S. 73 does not permit a court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court.
16.  In order to enable exercise of power under Section 73, the pendency of a proceeding before the Court is the sine qua non. Therefore, the comparison of the signature on the alleged ransom note in no way helps the prosecution.
17.  Great emphasis was laid by learned counsel for the State on the evidence of PW-4, the Addl. CJM that accused had admitted that the signature was his. This statement is of no assistance. The witness has admitted that the statement was made before him by the accused in the presence of police officials. The second circumstance is the alleged extra judicial confession before PW-10. The High Court has analysed the evidence in great detail. It is on record that the accused-Jagbir was being taken to various places and at different points of time he was being pressurized to make statement. Though the accused was claimed to have made the statement in the presence of large number of persons, a combined reading of the evidence shows that nobody else speaks about the so-called extra judicial confession, not even those who have been examined as PWs. Though PW10 said that there were many persons who had heard it, no other person has stated about it. The statement of PWs 7 and 10 goes to show that accused was being interrogated by PWs and other villagers as well as his father and other relatives. Interrogation continued for about 3 days when allegedly Jagbir confessed his guilt. Though the First Information Report was lodged by PW7 after knowing about the extra judicial confession, there is no mention about this vital fact. In a given circumstance, omission to mention about the particular aspect may not render prosecution version suspicious. But when circumstances in the present case are taken in the entirety alleged extra judicial confession is not believable. In order to make an extra judicial confession a reliable evidence it has to be shown that the same was voluntary. The factual scenario as presented by the prosecution goes to show that the alleged extra judicial confession cannot be termed to be voluntary even if it was said to have been made, as claimed. The High Court was right in discarding the alleged extra judicial confession.
18.  What remains now to be seen is whether the recovery of the dead body from the premises of accused establishes prosecution version. According to the prosecution when the Panchayat gave time to the accused to produce the boy alive or dead, he accepted that the dead body was buried in his compound. The accused dug the land and on seeing leg of the dead body they stopped digging and went to the police. The High Court has found that prosecution claimed that the two accused were arrested by the Sub Inspector Mahender Singh Bhatti (PW 12) on 9.9.1995 on the culvert of Jai Canal about 8.00 p.m. in the presence of one Chatter Singh and Om Parkash. However, Om Parkash (PW 10) has denied about the arrest of the accused by PW12 near canal. From the statement of PW12, it appears that the accused persons after their arrest made disclosure of the statement about ransom, concealment of the dead body and that the dead body recovered in the presence of aforesaid Chatter Singh and Om Parkash (PW10). It is belied by the statement of Om Parkash (PW10). According to this witness, when the accused made a voluntary statement in the presence of many others he pointed out where the body was buried. They went to the police station where they met PW12 and told him about finding the dead body. PW10 told him that dead body was to be handed over to Sr. S.P. or the Dy. S.P. Evidence of PW10 further shows that PW.12 accompanied by another ASI and other police officials went to the village. There many people had assembled and as the villagers started shouting and agitating that led to altercation; both the accused were arrested by the Dy.S.P. Thereafter it is stated that the accused- Jagbir made a disclosure statement, where he (PW10) and Chatter Singh were stated to be eyewitnesses. One thing is clear that there are unexplained contradictions about the place where the accused were arrested and manner of recovery. Since the dead body was recovered on the basis of information already known, S. 27 of the Evidence Act has no application. As observed by this Court in Aher Raja Khima v. State of Saurashtra (AIR 1956 SC 217 1955 Indlaw SC 41), if a recovery of the incriminating articles alleged to have been made by the accused while in custody is inadmissible in evidence if the police already known where they were hidden. That takes the case out the purview of S. 27 of the Evidence Act.
19.  However, if a witness can be believed that in his presence the accused person gave recovery of something (of course while not in police custody) it may be a suspicious circumstance, de hors S. 27 of the Evidence Act. But, as noted above, the High Court has analysed the evidence in the present case in great detail to find the evidence to be contradictory and unacceptable in relation to extra judicial confession and alleged recovery. That being so, the High Court's conclusion cannot be faulted.
20.  Looked from any angle the judgment of the High Court does not suffer from any infirmity which warrants interference.
21.  It is true that an innocent child has lost his life and there may be some truth about deficiency in the evidence collection mode. But the court can act on the evidence brought before it. Even though the investigation may not be entirely blemishless, at the same time when the material brought on record is insufficient, the course adopted by the High Court cannot be faulted. It does not appear that before the Trial Court or the High Court any grievance was made regarding remiss in investigation or not making investigation in the right direction.
The appeals are without merit and deserve dismissal, which we direct.
Appeals dismissed


Eradu and Others v State of Hyderabad
Supreme Court of India

1 November 1955
Cr.As. Nos. 69 to 72 of 1954.
The Judgment was delivered by: Natwarlal Harilal Bhagwati, J.
1.  These are Appeals with special leave against the judgment of the High Court of Hyderabad confirming the convictions and the sentences of transportation for life imposed upon the appellants, accused 1 to 4, by the Court of the Additional Sessions Judge, Medak, in respect of an offence under S. 243, A.P.C. corresponding to S. 302, Indian Penal Code.
2.  The accused 1 to 4, along with one Baldev Muthiah, were charged that they, on or about the 15th day of Isfandar 1359 F. (15th January 1950) at 10 o'clock in the night, abducted one Muneem Lachiah, Telanga, resident of Dognelli, who was at his house, and carried him outside the village where they did him to death, due to enmity, by hitting him with stick and spear and that they took away a silver kardoda and arm kada from his body and that they thereby committed offences punishable under Ss. 243 and 330, A.P.C.
3.  The learned Sessions Judge convicted the accused 1 to 4 of the offence under S. 243, A.P.C. and sentenced them to transportation for life. The accused 2 was further convicted under S. 337, A.P.C. and sentenced to a term of two years rigorous imprisonment. The sentences of transportation for life were submitted to the High Court for confirmation in accordance with the relevant provision of law in Hyderabad.
4. The High Court of Hyderabad, in appeal, agreed with the conclusion reached by the learned Sessions Judge and confirmed the conviction of the accused 1 to 4 under S. 243, A.P.C. and the sentences of transportation for life awarded to them by the Court below.
5. One of the learned Judges of the High Court simply confirmed the sentence under S. 243, A.P.C. but another learned Judge held that the accused were guilty of the offences under Ss. 243 and 330, Hyderabad Criminal Procedure Code (possibly meaning there by A.P.C.) and sentenced each of the accused to undergo life imprisonment on the above charges ill-realising that, in the whole of the judgment with which he agreed, there was not a word to justify the conviction under S. 330 A.P.C.
6. In substance, the judgment of the High Court came to this that the accused were convicted of the offence under S. 243, A.P.C. and sentenced to undergo life imprisonment in respect of the same.
7.  There was no. direct evidence of the accused having committed the offence. The whole case rested on circumstantial evidence and that evidence consisted of the testimony of three witnesses, the wife of the deceased P. W. 5, the young son of the deceased P. W. 6 and a neighbour P. W. 7, who deposed that, on the evening of the day in question, all the four accused had gone to the house of the deceased and accosted him, asking him to accompany them to the well of one Deshmukh.
8. There was evidence if ill-will between the deceased and the accused in that the accused were alleged to have abducted the deceased a month before the alleged murder and set him at liberty on payment of ransom of Rs. 350/- and also that the accused had, only three days before, deprived the deceased of a goat belonging to him from the possession of Kumari Sayiga P. W. 2 and slaughtered it and ate it away and there was consequently a quarrel arising out of the search of the house of accused 1 and 2 made at the instance of the deceased.
9. Lastly, there were recoveries of the silver kardoda at the instance of accused 2, a white turban and a stick from the house of accused 1 and another stick from the house of accused 3. The silver kardoda was alleged to have been removed from the person of the deceased and buried in a secluded spot which was pointed out by accused 2 and the white turban was alleged to have been stained with human blood.
10. These were the pieces of circumstantial evidence which, according to the learned Sessions Judge, pointed inevitably to the conclusion that accused 1 to 4 were responsible for his death. The learned Judges of the High Court also were of the opinion that there were eye-witnesses but a strong motive for the murder and the fact of all the accused having abducted the deceased on the night before the dead-body of the deceased was found were proved and these circumstances led to the conclusion that the accused were the perpetrators of the crime.
11.  There is no. doubt that the deceased was done to death in a brutal manner and after he was so done to death his dead-body was brought to the doddi or the backyard of his house and was hung there by means of a piece of rope tied round his neck. The theory of suicide was rightly discarded by the Courts below and it was evident on the inquest report as also on the doctor's evidence that the injuries inflicted on the person of the deceased were homicidal injuries. The only question, therefore, which remained to be considered by the Courts below was whether accused 1 to 4 were responsible for those injuries and the consequent death of the deceased.
12.  There is also no. doubt that accused 1 to 4 had in fact approached the deceased on the evening of that day and accosted him asking him to accompany them to the well of Deshmukh. This fact was proved by the evidence of the witnesses P. W. 5, P. W. 6 and P. W. 7 all of whom were believed by both the Courts below.
13.  It could not, however, by itself be enough to connect accused 1 to 4 with the crime. There was no. evidence at all of any further movements of accused 1 to 4 or one or more of them nor was there anything to connect them with the crime except the recoveries made at their instance as evidenced by the various panchnamas which were proved before the learned Sessions Judge. These panchnamas were criticised by the learned counsel for the appellants as containing evidence which was clearly inadmissible inasmuch as they contained statements alleged to have been made by accused 1, 2 and 3 in regard to their participation in the crime. Discarding these pieces of inadmissible evidence, therefore, there were indications of accused 1, 2 and 3 having pointed out the several articles which were recovered at their instance as stated in the respective panchnamas and they proved that silver kardoda was recovered at the instance of accused 2, a white turban and the stick were recovered at the instance of accused 1 and another stick was recovered at the instance of accused 3.
14.  The while turban, even though it was alleged to have been stained with human blood was, however not sent for analysis to the chemical analyser and the allegation in regard to its having been stained with human blood stood unconfirmed by any such analysis. The sticks also which were recovered at the instance of accused 1 and 3 were not alleged to bear any stains of human blood and there was nothing to distinguish these sticks from any other sticks which might ordinarily be found at the place of such people. The silver kardoda was an article in common use by the people in that locality and there was nothing to identify it with the silver kardoda alleged to have been worn by the deceased except the bare word of his wife P.W. 5. These recoveries, therefore, could not connect accused 1 to 4 with the crime. The recovery of the silver kardoda could, at best, prove that accused 2 was in the know of the same after it had been removed from the person of the deceased by whosoever was responsible for doing the deceased to death. No charge of murder could certainly be entertained against him by reason of such recovery. The stick and the white turban recovered at the instance of accused 1 could also not connect accused 1 with the crime, the stick being an ordinary stick which was not proved to be the weapon of offence and the white turban not having been sent for chemical analysis of the blood stains alleged to have been found upon the same. The stick recovered at the instance of accused 3 was similarly innocuous and none of these recoveries could be enough to fasten upon accused 1 to 3 responsibility for the crime.
15.  The motive which was alleged against accused 1 to 4 also was equally unhelpful to the prosecution. The previous incident of accused 1 to 4 having abducted the deceased and having set him at liberty on receiving a ransom of Rs. 350 could not show that accused 1 to 4 had any grudge against the deceased. If at all they had received the ransom of Rs. 350, they could not be said to bear and ill-will against the deceased by reason of having received that payment. The later incident of the goat having been slaughtered and eaten away by accused 1 to 4 might have led to some sort of bitterness between the deceased and them but the animosity would be on the side of the deceased and not of the persons who had eaten the goat. The version, however, given by the wife of the deceased, P. W. 5, in regard to this incident having been responsible for the enticing away of the deceased was not such as to carry conviction with the Court. In the inquest report which was made on 16-1-1950, the wife of the deceased had stated that accused 1 to 4 had called her husband to settle the account of the excise contract. In the evidence which she gave before the Sessions Court, she stated that on her enquiry from accused 1 to 4 why they were taking him away they replied that they had eaten the goat and they wanted to repay him for it. Both these statements could not be reconciled with each other and whatever be the correct version it rested merely on the bare word of the witness herself and was not corroborated by either of the two witnesses. P.W. 6 or P. W. 7. Under the circumstances, the motive could not be said to have been satisfactorily established by the prosecution and that circumstance was certainly of no. avail.
16.  If, therefore, neither the motive nor the recoveries could be of any help to the prosecution, the only thing which remained was the circumstance of accused 1 to 4 having accosted the deceased on the evening of that day and taken him away to the well of Deshmukh without anything more to connect them with the crime. The only offence which could be laid at their door on that fact being established could be one of abduction which would involve the infliction upon them of a punishment which would certainly not be life imprisonment. As we are informed all the accused have been undergoing sentences of rigorous imprisonment for the last 5 years and more and that would be more than enough to atone for the offence of abduction, if at all they committed the same.
. The conviction for the offence under S. 243, A.P.C. however, could not be sustained on the evidence as it stands on the record. It is a fundamental principle of criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that it was the accused and the accused only who were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused. Both the Court below considered that the fact of accused 1 to 4 enticing away the deceased on that evening and the further fact of the deceased having been found hanging in the doddi or the backyard of his house were by themselves enough to lead inevitably to the conclusion that it was the accused and the accused only who were responsible for the crime. We cannot agree with this conclusion reached by the Courts below. In our opinion, these circumstances, by themselves, are not enough without anything more to connect the accused with the crime and the accused are entitled to be acquitted of the offences with which they have been charged.
17.  In view of the fact that they have already undergone rigorous imprisonment for 5 years and more, we do not think it necessary to order any further investigation into any other offence accused 1 to 4 might be alleged to have committed in connection with the occurrence. In the case of accused 2 also, we do not think it necessary to express any opinion as regards his conviction under S. 337, A.P.C. because he has already undergone rigorous imprisonment for two years which was imposed upon him by the learned Sessions Judge in respect of the same.
18.  We accordingly allow the appeals, quash the convictions and the sentences imposed upon the appellants under S. 243, A.P.C. and order that the appellants be discharged and set at liberty forthwith.
Appeal allowed.


Rammi Alias Rameshwar v State Of Madhya Pradesh
Supreme Court of India

21 September 1999
Cr.A. No. 61 of 1999
The Judgment was delivered by: K.T.Thomas, J.
1.  A manslaughter in an automobile in locomotion is the subject matter of this case. The slaughtered man was a Home Guard personnel, by name Sardar Singh Thakur. When he boarded the bus destined to Naseerabad on the evening of 20.7.1985, he had no foreboding that it was his last journey alive. Before the bus could reach its terminus he was finished by armed assailants inside the vehicle while it was in motion. Appellants (Rammi alias Rameshwar and Bhura alias Sajjan Kumar) were two of the three persons arraigned before the Sessions Court. Though the Sessions Judge acquitted all of them a Division Bench of the High Court of Madhya Pradesh convicted the two appellants u/s. 302 read with S. 34 of the IPC and sentenced them to imprisonment for life. The third accused (Suresh alias Chhigga) died before the appeal was decided by the High Court. These appeals were filed by the two convicted persons as of right u/s. 379 of the Code of Criminal Procedure (for short the Code) and u/s. 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.
2.  The story of the prosecution, as revealed through evidence, can be summarised like this: One Channa Babu (brother of appellant Rammi and late Chhigga) was murdered for which the police charge-sheeted Sardar Singh Thakur (the deceased in this case) and his brother Shyam Singh (PW-3 in this case) and a few others. From then on these accused were thirsting for revenge for the murder of Channa Babu. They were prowling for an opportune opportunity to strike back. In such a background accused came to know that Sardar Singh Thakur was travelling in a bus. Accused wanted to avail themselves of that opportunity and boarded the bus on the way. After the vehicle moved for some distance the assailants mounted the attack on the deceased with chopper and knives.
3.  The assailants inflicted as many as 12 incised injuries on Sardar Singh Thakur. Those who tried to intervene were told by the assailants to mind their own business as the attack was intended for a revenge. After accomplishing the object all the assailants alighted from the vehicle and escaped from the scene. The passengers of the bus became frightened and most of them jumped out of the vehicle and ran helter-skelter.
4.  The stage carriage was then driven towards the police station by its driver (PW-12 Jabbar Khan). Ext. P-12 - First Information Statement was lodged at the police station by the conductor of the vehicle (PW-8 Ramashray). The accused were arrested and after interrogation the weapons used for the murder were recovered by PW-13 Investigating Officer from hidden places on the basis of informations elicited from the accused.
5.  There is no doubt that deceased Sardar Singh Thakur was murdered inside the said bus at about 5 P.M. while the bus was in motion. In fact that part of the case is not controverted by the appellants. The dispute now centers round the identity of the assailants. PW-8 Ramashray and PW-12 Jabbar Khan supported the case of the prosecution regarding the identity of the assailants, besides one of the passengers of the bus (PW-9 Ram Dulare). But the trial court was not impressed by their evidence. Nor did the trial court place any reliance on the evidence relating to the recovery of weapons which the prosecution adduced as per S. 27 of the Evidence Act. But the Division Bench of the High Court made complete reversal of the findings of the trial judge and made a scathing observation in the penultimate paragraph of the judgment under appeal, as under: Before parting with this appeal, we cannot resist from observing that the perverse reasoning and conclusions given by the trial judge in appreciating the evidence in the instant case cannot be supported. Such unrealistic approach in appreciating evidence in a criminal case shakes the confidence of the society in the legal system itself and our interference, therefore, is urgently called for.
6.  Shri Uday Umesh Lalit, learned counsel for the appellants contended that the reasoning of the trial judge regarding different items of incriminating evidence did not warrant interference in an appeal against acquittal as the views expressed by the trial judge were not unreasonable. Learned counsel dealt with the evidence almost threadbare in his endeavour to show that the sessions judge was not altogether wrong in acquitting the appellants.
7.  PW-9 Ram Dulare (a passenger in the bus) in his evidence said that he saw the appellants attacking the deceased with chopper and knives. The trial court pointed out that he did not inform the members of the family of the deceased nor did he bring this matter to the notice of the police. The Sessions Judge regarded the above as a conduct incompatible with the normal behaviour of a person witnessing such a crime.
8.  Such a remark on the conduct of a person who witnessed the murderous attack is least justified in the realm of appreciation of evidence. This Court has said time and again that the post event conduct of a witness varies from person to person. It cannot be a cast-iron reaction to be followed as a model by everyone witnessing such event. Different persons would react differently on seeing any violence and their behaviour and conduct would, therefore, be different. We have not noticed anything which can be regarded as an abnormal conduct of PW-9 Ram Dulare.
9.  Nonetheless, there are two broad circumstances which would bridle the court from placing full reliance on the evidence of PW-9. First is, though his name appeared in the First Information Statement its author PW-8 (the conductor of the bus) said in his evidence that Ram Dulare was not a person known to him. Second is, PW-9 has said in cross-examination that he did not mention anything about the incident to anybody else at all until he was questioned by the police.
10.  Though the aforesaid two incongruities came on record during cross-examination no attempt whatsoever was made by the Additional Public Prosecutor to secure any explanation regarding such aspects.
11.  Regarding the recovery of weapons, the prosecution could utilize statements attributed to the accused on the basis of which recovery of certain weapons was effected. S. 27 of the Evidence Act permits so much of information which lead to the discovery of a fact to be admitted in evidence. Here the fact discovered by the police was that the accused had hidden the blood-stained weapons. In that sphere what could have been admitted in evidence is only that part of the information which accused had furnished to the police officer and which led to the recovery of the weapons.
12.  True, such information is admissible in evidence under S. 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.
13.  PW-13 Investigating Officer has said in his evidence that the accused were arrested on the succeeding day of the occurrence from a different place and they were interrogated by him. But PW-12 (the driver of the bus) has said in his evidence that after he reached the police station on the same evening he saw the three accused inside the police station. We do not know whether it was an error which PW-12 committed during cross-examination. No doubt the Public Prosecutor who conducted the prosecution did not choose to put any question to PW-12 also in re- examination.
14.  As it is, there is material discrepancy regarding the time when police took the accused in custody. If PW-13 is correct the accused would have been arrested only on the succeeding day of occurrence. But if PW-12 is correct the accused should have been interrogated on the very day of occurrence in which case the accused would have had no occasion to conceal the weapons.
15.  With the above scrutiny we are unable to place any reliance on the evidence of PW-13 regarding recovery of the weapons at the instance of the accused. In this context we are tempted to observe that the Additional Public Prosecutor who conducted prosecution has not discharged his responsibility as he avoided putting any question to those witnesses when an opportunity for re-examination was provided to him.
16.  The very purpose of re-examination is to explain matters which have been brought down in cross-examination. S. 138 of the Evidence Act outlines the amplitude of re-examination. It reads thus: Direction of re-examination.- The re- examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.
17.  There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination.
18.  Even if the Public Prosecutor feels that new matters should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the court. If the Court thinks that such new matters are necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions.
19.  A Public Prosecutor who is attentive during cross- examination cannot but be sensitive to discern which answer in cross-examination requires explanation. An efficient Public Prosecutor would gather up such answers falling from the mouth of a witness during cross-examination and formulate necessary questions to be put in re-examination. There is no warrant that re-examination should be limited to one or two questions. If the exigency requires any number of questions can be asked in re-examination.
20.  But in this case the Additional Public Prosecutor in the trial court seemed oblivious of such a right. It is rather amazing that he did not avail himself of that right in respect of a single witness. The defence counsel would have had a free day as he was left totally undisturbed by the Public Prosecutor. Be that as it may, side-stepping above items of evidence is hardly sufficient to end the woes of the appellant because the prosecution examined two of the most important witnesses to the occurrence, PW-8 Ramashray - the conductor, and PW-12 Jabbar Khan - the driver.
21.  PW-8 had given three former statements regarding the occurrence (Ext.P-12 the First Information Statement, and then what the Investigating Officer recorded u/s. 161 of the Code, and another statement which the magistrate recorded u/s. 164 of the Code). The defence counsel used all those three statements to ferret out one or two omissions therefrom for confronting PW-8. The trial court on the strength of such answers castigated PW-8. This was what the Sessions Judge said about their evidence: Ramshray (PW-8) stood contradicted on material and vital points from the first information report Ex.P.11, case diary statement ex.D-1. Those contradictions relate to the material and vital points. These details go to show that Ramshray (PW-8) is not a truthful or reliable witness. He was made to modulate his version but to suit the prosecution case and it is not safe to place implicit reliance on his testimony. The evidence of this witness appears artificial, unnatural and improbable and suffers from intrinsic infirmities. In the circumstances, his testimony cannot be accepted on its face value.
22.  Shri Uday Umesah Lalit, learned counsel for the appellant tried to support the said reasoning of the trial court. We feel that the approach made by the trial court in groping for discrepancies in the testimony of such important witnesses had resulted in the unmerited acquittal.
23.  When eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
24.  It is a common practice in trial courts to make out contradictions from previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt S. 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of inconsistent former statement. But a reading of the Section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the Section is extracted below:
(155) Impeaching credit of witness.- The credit of a witness maybe impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.
25.  A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be contradicted would affect the credit of the witness. S. 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to contradict the witness the cross-examiner is enjoined to comply with the formality prescribed therein. S. 162 of Code also permits the cross-examiner to use the previous statement of the witness (recorded u/s. 161 of the Code) for the only limited purpose, i.e. to contradict the witness.
26.  To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness, (vide Tahsildar Singh and anr. vs. State of U.P., AIR 1959 SC 1012 1959 Indlaw SC 236).
27.  In this case the evidence of the conductor and the driver of the bus evinces credibility. As pointed out earlier they are the most natural witnesses for the murder which took place inside the bus. The minor variations which the defence counsel discovered from their former statements did not amount to discredit the core of their evidence. The strained reasoning of the Sessions Judge for side-stepping their evidence is too fragile for judicial countenance. The Division Bench of the High Court has rightly reversed the finding regarding the credibility of their evidence.
28.  For the aforesaid reasons we agree with the High Court that appellants are liable to be convicted u/s. 302 of the IPC. We, therefore, dismiss this appeal.
Appeal dismissed.


Chinnaswamy v State Of Andhra Pradesh
Supreme Court of India

25 July 1962
Criminal Apeal No. 6 of
1960
The Judgment was delivered by : Kailas Nath Wanchoo, J.
1.  This is an appeal by special leave against the judgment of the Andhra Pradesh High Court. The appellant was convicted under s. 411 of the Indian Penal Code by the Assistant Sessions Judge of Kurnool. Along with him, another person Hussain Saheb was also tried and was convicted under so. 457 and 380 of the Indian Penal Code. The case for the prosecution briefly was that the house of Rahayya in Dudyia was burgied on the night of April 20, 1957. Ramayya and his wife were sleeping outside and on waking in the morning they found that the house had been burgled and valuable property stolen. The matter was reported to the police and during the course of investigation the police recovered 17 ornaments on the information given by the appellant. The other accused had also given information on the basis of which another stolen ornament was recovered. The Assistant Sessions Judge on a consideration of the evidence came to the conclusion that the other accused had actually committed house breaking and had removed ornaments from the house of Ramayya and had handed over 17 ornaments out of that property to the appellant. He also came to the conclusion that the seventeen ornaments recovered at the instance of the appellant were in his possession and he therefore found him guilty under s. 411 of the Indian Penal Code. The appellant and the other accused went in appeal to the Sessions Judge. The Sessions Judge held that the appellant had not been proved to be in possession of the seventeen ornaments which were recovered at his instance from a garden. The statement of the appellant in this respect was that "he would show the place where he had hidden them (the ornaments)". Thereafter he went to the garden and dug out two bundles containing the seventeen ornaments from there. The Sessions Judge held that the recovery of ornaments from the garden at the instance of the appellant was proved; but he further held that that part of the statement of the appellant where he said that he had hidden the ornaments was not admissible in evidence. Therefore, he took the view that as the ornaments were recovered from a place which was accessible to all and sundry and there was no other evidence to show that the appellant had hidden them, it could not be held that the ornaments were in the appellant's possession. He therefore gave the benefit of doubt to the appellant and ordered his acquittal. He also acquitted the other accused at whose instance one of the stolen ornaments was recovered. This accused had stated that he given the ornaments to Bada Sab (P. W. 5) and took the police party to Bada Sab and asked him to return the ornaments, which Bada Sab did. The Sessions Judge, however, on a consideration of the evidence against the other accused thought the case against him was also doubtful and ordered his acquittal, though he ordered the return of ornaments to Ramayya.
2.  This was followed by a revision by Ramayya against the appellant and the other accused. The High Court has allowed the revision and directed that the matter should go back to the Sessions Judge so that the accused should be re tried on the charges on which they had been brought to trial on the former occasion. It is against this order of the High Court directing retrial that the present appeal by special leave is directed. It may be mentioned, however, that only Chinnaswamy Reddy has appealed while the other accused has not appealed against the order of the High Court.
3.  The main contention of the appellant before us is that this was a revision by a private party. There were no exceptional circumstances in this case which would justify the High Court in interfering with an order of acquittal at the instance of a private party. Further, it is urged that a. 439 (4) of the Code of Criminal Procedure specifically forbids the High Court from converting a finding of acquittal into one of conviction and that a reading of the judgment of the High Court shows that by the indirect method of retrial the High Court has practically directed the Sessions Court to convict the appellant and thus indirectly converted finding of acquittal into one of conviction, through it has not been done and could not be done directly. The extent of the jurisdiction of the High Court in the matter of interfering in revision against an order of acquittal has been considered by this Court on a number of occasions. In D, Stephens v. Nosibolla [1951] S.C.R. 284 1951 Indlaw SC 4 this Court observed
"The revisional jurisdiction conferred on the High Court under s. 439 of the Code of Criminal Procedure is not to be lightly exercised when it in invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under a. 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on the record."
4.  Again, in Logendranath Jha v. Shri Polailal Biswas(1951) S.C.R. 676 1951 Indlaw SC 17, this Court observed
"Though sub s. (1) of s. 439 of the Criminal Procedure Code authorises the High Court to exercise in its discretion any of the powers conferred on a court of appeal by s. 423, yet sub a. (4) specifically excludes the power to "'convert a finding of acquittal into one of conviction". This does not mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court can in the absence of any error on a point of law reappraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stops short of finding the accused guilty and passing, sentence on him by ordering are trial."
5.  These two cases clearly lay down the limits of the High Court's jurisdiction to interfere with an order of acquittal in revision; in particular, Logendranath Jha's case (1951) S.C.R. 676 1951 Indlaw SC 17 stresses that it is not open to a High Court to convert a finding of acquittal into one of conviction in view of the provisions of s. 439 (4) and that the High Court cannot do this even indirectly by ordering re trial. What had happened in that case was that the High Court reversed pure findings of facts based on the trial court's appreciation of evidence but formally complied with sub a. (4) by directing only a retrial of the appellants without convicting them, and warned that the court retrying the case should not be influenced by any expression of opinion contained in the judgment of the High Court. In that connection this Court observed that there could be little doubt that the dice was loaded against the appellants of that case and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witnesses and the circumstances of the case in general.
6.  It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub s. (4) of a. 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of a. 439 (4). We have therefore to see whether the order 'of the High Court setting aside the order of acquittal in this case can be upheld on these principles.
7.  A perusal of the judgment of the High Court shows that the High Court has gone into the evidence in great detail so far as the case against the appellant was concerned. In our opinion, the High Court should not have dealt with evidence in such detail when it was going to order a retrial, for such detailed consideration of evidence, as pointed out in Logendranath's case [1951] S.C.R.676 1951 Indlaw SC 17. amounts to loading the dice against the appellant, when the case goes back for retrial. If the matter stood at this only, we would have no hesitation in setting aside the order of the High Court directing a retrial; but there is one important circumstance in this case to which the High Court has adverted in passing, which, in our opinion, was sufficient to enable the High Court to set aside the acquittal in this case. It would then have been unnecessary to consider the evidence in that detail in which the High Court has gone into it, and thus load the dice against the appellant, when the case goes back for retrial. That circumstance is that the Assistant Sessions Judge had admitted in evidence that part of the statement of the appellant in which he stated that he would show the place where he had hidden the ornaments and relying on it he held that the appellant was in possession of the seventeen ornaments, he had dug out from the garden which he owned along with others. The Sessions Judge however held that that part of the statement of the appellant where he stated that he had hidden the ornaments was inadmissible in evidence. The same applies to the case against the other accused, 'who had stated that he had given one ornament to Bada Sab and would get it recovered from him. Though the Sessions Judge has not in specific trems ruled out that part of the other accused's statement where he said that he had given the ornament to Bada Sab, he did not consistently with what be said with respect to the appellant, attach importance to this statement of the other accused. If therefore this part of the statement of the appellant and the other accused which led to discovery of ornaments is admissible, it must be held that the appeal court wrongly ruled out evidence which was admissible. In these circumstances, the case would clearly be covered by the principles we have set out above in as much as relevant evidence was ruled out as inadmissible and the High Court would be justified in interfering with the order of acquittal so that the evidence may be reappraised after taking into account the evidence which was wrongly ruled out as inadmissible. It seems that the High Court was conscious of this aspect of the matter, for it says in one part of the judgment that the only possible inference that could be drawn was that the appellant was in possession of stolen goods before they were put in that secret spot, as admitted by the appellant in his statement, part of which is admissible under s. 27 of the Indian Evidence Act. If the High Court had confined itself only to the admissibility of this part of the statement, it would have been justified in interfering with the order of acquittal. Unfortunately, the High Court went further and appraised the evidence also which it should not have done, as held by this Court in Logendranath's case [1951] S.C.R. 676 1951 Indlaw SC 17. However, if admissible evidence was ruled out and was not taken into consideration, that would in our opinion be a ground for interfering with the order of acquittal in revision.
8.  Let us then turn to the question whether the statement of the appellant to the effect that ,he had hidden them (the ornaments)" and "would point out the place" where they were, is wholly admissible in evidence under s. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. The Sessions Judge in this connection relied on Pulukuri Kotayya v. King Emperor [1946] L.R. 74 I.A. 65 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. In that case the Judicial Committee considered s. 27 of the Indian Evidence Act, which is in these terms :
"Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
9.  This section is an exception to ss. 25 and 26, which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody, unless it is made in immediate presence of a magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under s. 87. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under a. 17 and laid stress on the words "so much of such information as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact." It was further observed. that
"Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered." This was exemplified further by the Judicial Committee by observing
"Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' 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. If however to the statement the words be added with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
10.  If we may respectfully say so, this case clearly brings out what part of the statement is admissible under a. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. S. 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect 'where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under s. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and axe distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them " would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place, s 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellants would not prove the offence, for after the articles have been recovered, the prosecution has still to show that the articles recovered are connected with the crime, i. e. in this case, the prosecution will have to show that they are stolen property. We are therefore of opinion that the entire statement of the appellant (2) as well as of the other accused Who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by. the Sessions Judge, this is,% fit case where the High Court would be entitled to set aside the finding of acquittal in revision, though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.
11.  The next question is what order should be passed in a case like the present. The High Court also considered this aspect of the matter. Two contingencies arise in such a case. In the first place there may be an acquittal by the trial court. In such a case if the High Court is justified, on principles we have enunciated above, to interfere with the order of acquittal in revision, the only course open to it is to set aside the acquittal and send the case back to the trial court !or retrial. But there may be another type of case, namely, where the trial court has convicted the accused while the appeal court has acquitted him. In such a case if the conclusion of the High Court is that the order of the appeal court must be set aside, the question is whether the appeal court should be ordered to re hear the appeal after admitting the statement it had ruled out or whether there should K necessarily be a retrial. So far as this is concerned, we are of opinion that it in open to the High Court to take either of the two courses. It may order a retrial or it may order the appeal court to re hear the appeal. It will depend upon the facts of each case whether the High Court would order the appeal court to re hear the appeal or would order a retrial by the trial court. Where, as in this case, the entire evidence is there and it was the appeal court which ruled out the evidence that had been admitted by the trial court, the proper course in our opinion is to send back the appeal for rehearing to the appeal court. In such a case the order of the trial court would stand subject to the decision of the appeal court on re hearing. In the present case it is not disputed that the entire evidence has been led and the only defect is that the appeal court wrongly ruled out evidence which was admitted by the trial court. In the circumstances we are of opinion that the proper course is to direct the appeal court to re hear the appeal and either maintain the conviction after taking into consideration the evidence which was ruled out by it previously or to acquit the accused if that is the just course to take. We should like to add that the appeal court when it re hears the appeal should not be influenced by any observations of the High Court on the appreciation of the evidence and should bring to bear its own mind on the evidence after taking into consideration that part of the evidence which was, considered inadmissible previously by it. We therefore allow the appeal subject to the modification indicated above.
12.  This leaves the case of the other accused. We are of opinion that as we are directing the appeal court to re hear the appeal with respect to the appellant it is only proper that the order relating to the other accused should also be set aside and his appeal should also be re heard in the manner indicated above. We therefore set aside the order of the High Court with respect to the retrial of the other accused and direct that his appeal will also be re heard along with the appeal of the appellant.
Appeal allowed