Aftab Ahmad Anasari vs State Of Uttaranchal

Sections 302, 376 and 201 of Indian Penal Code (IPC) and 2

imposed penalty of death sentence for commission of offence

punishable under Section 302 IPC as well as R.I. for life for

commission of offence punishable under Section 376 IPC

and a fine of Rs.10,000/- in default R.I. for one year and

R.I. for seven years and a fine of Rs.5,000/- in default R.I.

for one year for commission of offence punishable under

Section 201 IPC.

2. Feeling aggrieved, the appellant and Mumtaz preferred

Criminal Appeal No. 36 of 2004 whereas Reference made

under Section 366 of the Code of Criminal Procedure by the

learned Additional Sessions Judge in view of death sentence

passed against both the accused was registered as Criminal

Reference 1 of 2004 before the High Court of Uttaranchal at

Nainital. The Division Bench of the High Court, by

judgment dated December 17, 2004, has rejected the

Reference and partly allowed the appeal by acquitting

accused Mumtaz but affirmed the conviction of the

appellant under Sections 302, 376 and 201 IPC. The death

penalty awarded to the appellant for commission of offence

punishable under Section 302 IPC is modified and the

appellant is sentenced to R.I. for life for commission of the 3

offence punishable under Section 302 IPC. The High Court

has further maintained sentence imposed on the appellant

under Sections 376 and 201 IPC. The confirmation of the

conviction of the appellant under Sections 302, 376 and

201 IPC by the High Court and imposition of different

punishments for those offences, has given rise to the instant

Appeal by Special Leave.

3. Mr. Nayeem Ahmad is resident at Mundia Pistor

Village, Bajpur, District Udham Singh Nagar, Uttaranchal.

His daughter Yasmeen aged five years having fair

complexion and round face, wearing frock, underwear and

sleepers was playing near his house at about 5.00 p.m. in

the evening of February 5, 1998. It was noticed that she

was missing from the place where she was playing and,

therefore, Nayeem Ahmad made frantic search about

Yasmeen at the places of all his relatives but she could not

be traced. As search made by him did not yield any result,

he filed a missing report on February 6, 1998 at Bajpur

Police Station mentioning, inter alia, that his daughter had

disappeared while playing near his house and, therefore,

steps be taken to trace her out. On February 8, 1998, 4

Report (Exhibit Ka.2) was lodged at Bajpur Police Station by

Shamim Ahmad who is real brother of Nayeem Ahmad

stating, inter alia, that Yasmeen aged about five years

daughter of his elder brother Nayeem Ahmad while playing

near the house of Nayeem Ahmad had disappeared at about

5.00 p.m. in the evening of February 5, 1998 for which

Nayeem Ahmad had lodged a missing report at the Police

Station, but at about 6.00 a.m. on February 8, 1998, her

dead body was found lying on the public way in front of the

house of Haji Khursheed, son of Bashir Ahmad of village

Bajpur and, therefore, legal action be taken. On receiving

this information, concerned police personnel reached the

place where dead body of the deceased was lying. The

inquest on the dead body of the deceased was held and

necessary arrangements were made for sending the dead

body for post mortem examination. The post mortem

examination was carried out on February 8, 1998. The

examination revealed that the deceased was subjected to

rape and thereafter strangulated. On February 9, 1998, the

Investigating Officer, on the basis of the information given

by the informer, arrested both the accused persons under 5 Sections 302, 376 and 201 IPC. While in custody, the

appellant and Mumtaz made disclosure statements to the

Investigating Officer pursuant to which the appellant

discovered one frock with blood marks, one white cotton

underwear with black stripes having blood stains and one

bed sheet of light green colour with plenty of blood marks

from the house of sister of the appellant. The articles

discovered were seized under a panchnama and sent to

forensic science laboratory for analysis. The Investigating

Officer recorded the statement of those persons who were

found to be conversant with the facts of the case. On

receipt of report from the analyst and on completion of

investigation, the appellant and Mumtaz were charge-

sheeted in the Court of learned Judicial Magistrate, First

Class for commission of offences punishable under Sections

302, 376 and 201 IPC.

The offences punishable under Sections 302 and

376 IPC are exclusively triable by a Court of Sessions.

Therefore, the case was committed to the Court of learned

Additional District and Sessions Judge, Nainital for trial.

The learned Judge framed necessary charges against the 6

appellant and Mumtaz for commission of offences

punishable under Section 302, 376 and 201 IPC. The same

were read over to them. They pleaded not guilty to the same

and claimed to be tried. Therefore, prosecution examined

seven witnesses and produced documentary evidence to

prove its case against the appellant and Mumtaz. After

recording of evidence of prosecution witnesses was over, the

learned Judge explained to the appellant and Mumtaz the

circumstances appearing against them in the evidence of

prosecution witnesses and recorded their further statement

as required by Section 313 of the Code of Criminal

Procedure, 1973. In the further statements, the appellant

and Mumtaz pleaded ignorance in respect of certain facts

whereas in relation to some other facts their claim was that

they were false. The appellant and Mumtaz had expressed

desire to examine defence witnesses which was granted by

the learned Judge. The appellant, therefore, examined

DW1, Ms. Bilkis and DW2, Lakhbinder Singh alias Lakha in

defence. The learned Judge noticed that the case was

entirely resting upon circumstantial evidence. After holding

that the deceased died a homicidal death, the learned Judge 7

appreciated the evidence and held that four circumstances,

namely, that (1) both the accused were seen by PW-3,

Naseed Ahmad, at about 4.30 a.m. on 8.2.1998 fleeing away

from near the place where the dead body of deceased

Yasmeen was found after some time; (2) on the disclosure

statement made by the appellant, blood stained frock and

underwear of the deceased and blood stained bed sheet

were recovered; (3) underwears of both the accused, seized,

were stained with human blood and semen; and (4) extra-

judicial confession was made by the appellant before PW-5,

Anand Swaroop, are firmly established, to bring home guilt

of the accused under Sections 302, 376 and 201 IPC. The

learned Judge noticed that the chain of circumstances

established was complete, cumulative effect of which was

indicating that in all human probability, the offences were

committed by the appellant and Mumtaz and by none other.

In view of abovementioned conclusions, the learned Judge

convicted the appellant and Mumtaz under Section 302,

376 and 201 IPC. Thereafter, the learned Judge heard the

appellant and Mumtaz on the question of sentence to be

imposed on them for commission of abovementioned 8

offences. The learned Judge noticed that this was the rarest

of rare case falling within the purview of guidelines laid

down by this Court in Maulai & Anr. Vs. State of M.P. AIR

2000 SC 177 and imposed death penalty on both the

accused for commission of offence punishable under Section

302 IPC. The learned Judge further imposed punishment of

R.I. for life and a fine of Rs.10,000/- and in default R.I. for

one year for commission of offence punishable under

Section 376 IPC. The learned Judge further imposed

sentence of R.I. for seven years and a fine of Rs.5,000/- and

in default R.I. for one year for commission of offence

punishable under Section 201 IPC by judgment dated

January 7, 2004. The imposition of death sentence resulted

into Criminal Reference under Section 366 of the Code of

Criminal Procedure, 1973. The appellant and Mumtaz also

being aggrieved by the judgment of the Trial Court preferred

Criminal Appeal No.36 of 2004 before the High Court of

Uttaranchal at Nainital. The reference and appeal were

heard together. The High Court on re-appreciation of

evidence came to the conclusion that three circumstances

were proved by the prosecution, namely, (1) both the 9

appellants were seen by PW3, Naseem Ahmad at about 4.30

a.m. on February 8, 1998 fleeing from near the place where

the dead body of the deceased was found; (2) blood stained

frock and underwear of the deceased and blood stained bed

sheet were recovered pursuant to voluntary disclosure

statement made by the appellant; and (3) extra judicial

confession was made by the appellant before PW-5, Anand

Swaroop. The Division Bench by judgment dated December

17, 2004 has partly allowed the appeal. The High Court has

set aside the conviction of Mumtaz recorded by the Trial

Court but confirmed the conviction of the appellant

recorded by the Trial Court under Sections 302, 376 and

201 IPC. The High Court has further modified the sentence

of death imposed on the appellant for commission of offence

punishable under Section 302 IPC and awarded R.I. for life

whereas sentences awarded for commission of offences

punishable under Sections 376 and 201 have been

confirmed.

4. This Court has heard the learned counsel for the

parties and considered the documents forming part of the

appeal. It is relevant to notice that the prosecution has not 10

claimed that the rape and murder of the deceased was

witnessed by anyone and no direct evidence regarding the

same is adduced before the court. Admittedly, the whole

case against the appellant rests on circumstantial evidence.

The law relating to circumstantial evidence is well settled.

In dealing with circumstantial evidence, there is always a

danger that conjecture or suspicion lingering on mind may

take place of proof. Suspicion howsoever strong cannot be

allowed to take place of proof and, therefore, the Court has

to judge watchfully and ensure that the conjectures and

suspicions do not take place of legal proof. However, it is no

derogation of evidence to say that it is circumstantial.

Human agency may be faulty in expressing picturization of

actual incident but the circumstances cannot fail.

Therefore, many a times, it is aptly said that "men may tell

lies, but circumstances do not". In cases where evidence is

of a circumstantial nature, the circumstances from which

the conclusion of guilt is to be drawn should, in the first

instance, be fully established. Each fact must be proved

individually and only thereafter the Court should consider

the total cumulative effect of all the proved facts, each one 11

of which reinforces the conclusion of the guilt. If the

combined effect of all the facts taken together is conclusive

in establishing the guilt of the accused, the conviction

would be justified even though it may be that one or more of

these facts, by itself/themselves, is/are not decisive. The

circumstances proved should be such as to exclude every

hypothesis except the one sought to be proved. But this

does not mean that before the prosecution case succeeds in

a case of circumstantial evidence alone, it must exclude

each and every hypothesis suggested by the accused,

howsoever extravagant and fanciful it might be. There must

be a chain of evidence so far complete as not to leave any

reasonable ground for 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. Where the various links in a chain

are in themselves complete, then a false plea or a false

defence may be called into aid only to lend assurance to the

Court. If the circumstances proved are consistent with the

innocence of the accused, then the accused is entitled to the

benefit of doubt. However, in applying this principle, 12

distinction must be made between facts called primary or

basic on the one hand and inference of facts to be drawn

from them on the other. In regard to the proof of basic or

primary facts, the Court has to judge the evidence and

decide whether that evidence proves a particular fact or not

and if that fact is proved, the question arises whether that

fact leads to the inference of guilt of the accused person or

not. In dealing with this aspect of the problem, the doctrine

of benefit of doubt applies. Although there should be no

missing links in the case, yet it is not essential that every

one of the links must appear on the surface of the evidence

adduced and some of these links may have to be inferred

from the proved facts. In drawing these inferences or

presumptions, the Court must have regard to the common

course of natural events, and to human conduct and their

relations to the facts of the particular case.

5. Having noticed the relevant principles governing a case

based on circumstantial evidence, this Court proposes to

consider the question whether the case against the

appellant is proved. The appellant, at the time of incident

was in his early 20's. He is resident of village Patia Nagla, 13

P.S. Gatpur, Tehsil Thakurdwara, District Muradabad. His

sister Ms. Bilkis, DW-1, was married to Kabir Ahmad of

village Bajpur where the first informant is residing. The

appellant used to visit and stay at the house of his sister. It

may be mentioned that the Trial Court was of the view that

four circumstances mentioned above were proved by the

prosecution.

6. The fact that deceased Yasmeen was subjected to rape

and died a homicidal death is not disputed before this Court

by the appellant. This fact stands amply proved by the

reliable testimony of Dr. J.S. Rawat, who performed autopsy

on the dead body of the deceased and contents of post

mortem produced at Exhibit Ka.5.

7. Similarly the fact that naked dead body of deceased

Yasmeen with injuries was found lying at about 6.00 a.m.

on 8.2.1998 in front of the house of Haji Khursheed is

amply borne out from the trustworthy testimony of PW-1,

Nayeem Ahmad, PW-2, Shamim Ahmad, inquest report

Exhibit Ka.4 etc. 14

8. According to the Sessions Court and the High Court,

one of the incriminating circumstances proved by the

prosecution is that witness Naseem Ahmad had seen the

appellant and another fleeing from near the place where the

dead body of the deceased was found lying at about 4.30 am

on February 8,1998. The learned counsel for the appellant

submitted that the only witness produced by the

prosecution to prove this circumstance is PW-3, Naseem

Ahmad but the said witness does not speak of any source of

light and his silence of not telling this fact to the

Investigating Officer at the time of holding of inquest is most

unnatural and, therefore, the High Court had erred in

placing reliance on his evidence. Elaborating this

argument, it was submitted that the statement of Naseem

Ahmad under Section 161 was recorded on February 9,

1998 after the arrest of the appellant and Mumtaz was

effected and he does not say that he had seen the accused

carrying dead body or dropping any object in front of the

house of Haji Khursheed. It was pointed out that he is a

close relative of the complainant who asserted that before

the report of recovery of dead body was lodged by Shamim, 15

he had told Nayeem and Shamim that he had seen the

appellant and Mumtaz running away from near the place

where the dead body was found lying but no such fact was

stated in the report made by witness Shamim Ahmad and,

therefore, his claim that he had seen the appellant fleeing

from near the place where the dead body was found lying

should have been disbelieved. What was stressed was that

according to the said witness, he and Jakir were going to

jungle for answering the call of nature and seen the

appellant entering into the house of his sister but for the

same reason, the appellant could have been out of his

sister's house and, therefore, the appellant entering into the

house of his sister could not have been treated as an

incriminating circumstance. What was claimed was that

neither this circumstance sought to be relied upon by the

prosecution stands proved beyond doubt by witness Naseem

Ahmad nor the same can be characterised as an

incriminating circumstance and, therefore, the same should

be ignored while appreciating the evidence against the

appellant.

16

9. So far as the circumstance, namely, that the appellant

and Mumtaz were seen fleeing away from near the place

where the dead body of the deceased was lying is concerned,

this Court finds that the prosecution has relied upon the

testimony of PW2, Naseem Ahmad. After mentioning that

younger daughter of his brother Nayeem had disappeared

on February 5, 1998, the witness has mentioned that in the

morning of February 8, 1998 at about 4.30 a.m. he himself

and one Jakir were going towards jungle and when they

reached near the house of Haji Khursheed, they had seen

the appellant and Mumtaz running from near the house of

Haji Khursheed and entering into the house of Kabir. It

may be stated that Kabir is brother-in-law of the appellant,

i.e., husband of Ms. Bilkis who is sister of the appellant.

The witness has claimed in his evidence that he was

knowing Aftab, i.e., the appellant and Mumtaz before the

incident. According to this witness, when they came back

from the jungle at that time, they learnt that on the same

day, dead body of daughter of Nayeem Ahmad was found

near the house of Haji Khursheed.

17

This witness was subjected to searching cross-

examination by the defence. In his cross examination, the

witness stated that his house was located after two houses

from the house of Haji Khursheed. According to him Jakir

who is his brother-in-law had come to his house from village

Mudia Kalan. During this cross-examination, the witness

also explained that Jakir was real brother-in-law of Nayeem

and, thus, deceased was niece of Jakir. What was

maintained by the said witness was that both of them had

proceeded to jungle at about 4.30 a.m. for answering the

call of nature and had seen the appellant and Mumtaz while

they were going to jungle. According to this witness, the

Investigating Officer had recorded his statement on the next

day of recovery of the dead body. It was further stated by

this witness in his cross-examination that the deceased was

missing since February 5, 1998 whereas her dead body was

found on February 8, 1998. The witness has further

mentioned that by the time they had come back from the

jungle, the dead body had already been found and one

missing report was written on February 6, 1998 which was

scribed and lodged by Shamim after the dead body was 18

found. It was stated by him that he was not present at the

time of writing of the report by Shamim but before the

report was written, Shamim and Nayeem were told by him

and Jakir that they had seen the appellant and Mumtaz

running away from near the place where the dead body was

lying. The witness further mentioned in his cross-

examination that the report was scribed after arrival of

sniffer dog called by the police. It was explained by the

witness that sniffer dog had been brought at 7.30 a.m. The

suggestion made by the defence that he had not seen

anyone running away from near the place where the dead

body was lying and was deposing falsely on account of

relationship with Nayeem was emphatically denied by him.

10. A fair reading of the evidence tendered by this witness

makes it evident that though he is relative of Nayeem, he

has stated the facts seen by him in a simple manner and

without any noticeable embellishments. If this witness

wanted to implicate the appellant falsely in the case because

of his relationship with the first informant, nothing

prevented him from stating before the police and the court

that he had seen the appellant carrying the dead body of the 19

deceased and throwing the same near the house of Haji

Khursheed.

11. However, this Court finds that he has not made any

false claim/exaggeration in his testimony at all and stated

that he had seen the appellant fleeing from near the place

where the dead body was lying. The reason as to why in the

early morning he was out of his house is stated by him,

which this Court finds to be most natural. It could not be

even remotely suggested by the defence that a constructed

latrine was available in the house of witness Naseem Ahmad

and, therefore, it was not necessary for him to move out of

his house in the early morning of February 8, 1998 to go to

jungle for answering call of nature. What is relevant to

notice is that at the time when this witness had seen the

appellant running away from near the place where the dead

body was found, he had not learnt that the dead body was

already found. Further, his house is located after two

houses from the house of Haji Khursheed and the house of

Ms. Bilkis, who is sister of the appellant and with whom the

appellant was residing at the relevant point of time, is quite

near to the house of Haji Khursheed. Therefore, the claim 20

made by the witness that he had seen the appellant

hurriedly entering the house of his sister sounds probable.

No major contradiction and/or omission with regard to his

earlier statement recorded before the police nor any other

material could be brought on record by the defence to

impeach his credibility. Merely because Shamim did not

refer to the fact that he was told by Naseem Ahmad that

Naseem Ahmad had seen the appellant running away from

near the place where the dead body was lying in his report

to the police, cannot be a ground to disbelieve this witness.

The learned Judge of the Trial Court who had advantage of

observing demeanour of this witness has found the witness

to be truthful. The assertion made by the witness that the

appellant and Mumtaz were known to him could not be

disputed by the defence at all. It was claimed by this

witness in terms before the Court that he had seen the

appellant running away from near the place where the dead

body was lying. When it was stated by the appellant that he

had seen the appellant running away from near the place

where the dead body was lying, it was for the defence to

suggest that in the early morning of February 8, 1998, no 21

source of light was available and, therefore, he could not

have seen the appellant so running away. However, this

Court finds that even remotely it was not suggested to the

witness that there was no source of light and, therefore, he

could not have seen the appellant running away from near

the place where the dead body was lying. The plea that this

witness maintained silence at the time when the inquest on

the dead body of the deceased was held and did not tell the

Investigating Officer that he had seen the appellant running

away from near the place where the dead body was lying

would indicate that he had not seen the appellant running

away, is merely stated to be rejected. The occasion for this

witness to tell the Investigating Officer that he had seen the

appellant running away from near the place where the dead

body was lying would arise only when the Investigating

Officer was to record his statement under Section 161. The

basic purpose of holding inquest on the dead body is to

ascertain prima facie the nature of death and to find out

whether there are injuries on the dead body or not. The

inquest punchnama cannot be treated as statement of the

witness recorded under Section 161 of the Code of Criminal 22

Procedure wherein he is supposed to narrate the facts seen

by him. Therefore, it is not true to say that he had

maintained silence and had not told the Investigating Officer

at the time of holding of the inquest that he had seen the

appellant running away from near the place where the dead

body was lying. The so called silence on the part of this

witness cannot be considered to be unnatural at all nor the

same makes this testimony doubtful in any manner. It is

true that the appellant who was staying in the house of his

sister cannot be said to have committed any unnatural

conduct by entering into the house of his sister. However, it

is not the case of witness Naseem Ahmad that he had seen

the appellant calmly entering into the house of his sister.

What is mentioned by the witness is that he had seen the

appellant running away from near the place where the dead

body was found and hurriedly entering house of his sister.

The `running away' part attributed to the appellant could

not be explained by him. In his further statement, it could

not be explained by the appellant as to what made him

running away from near the place where the dead body was

found and hurriedly entering into the house of his sister. 23

On reappraisal of the evidence of this witness, this Court

finds that neither the Trial Court nor the High Court

committed any error in placing reliance on the testimony of

this witness for coming to the conclusion that one of the

incriminating circumstances, namely, that the appellant

was found fleeing from near the place where the dead body

was found lying was satisfactorily proved.

12. Another circumstance sought to be relied upon by the

prosecution is that the appellant had made voluntary

disclosure statement pursuant to which blood stained

clothes of the deceased were discovered. The disclosure

statement was made by the appellant in presence of PW4,

Rais Ahmad. To prove the recovery of clothes of the

deceased, the prosecution has relied upon the testimony of

two witnesses, namely, PW4, Rais Ahmad and PW7, Praveen

Kumar Tyagi, the Investigating Officer. PW4, Rais Ahmad

has stated that on February 8, 1998 Police had come to

village Bajpur at about 3.30 p.m. and they had brought with

them the appellant and Mumtaz. According to this witness,

he and Lakhvinder Singh were standing at the place where

the appellant was brought by the police. It is mentioned by 24

the witness that police had called him and Lakhvinder

Singh and asked them to accompany them. What is stated

by the witness is that the appellant and Mumtaz led them to

the house of Kabir and the appellant took out one sleeveless

frock, one underwear and one green coloured bed sheet

from the foodgrains room of the house of Kabir. The witness

further stated that the abovementioned articles were kept

hidden under the leaves and after taking out those articles,

the appellant had told that these were the clothes of

Yasmeen which he had concealed. It was further stated by

the witness that seizure memo was prepared by the

Investigating Officer on the spot and his signature was

obtained thereon after it was read over to him. The witness

identified his signature on the memo (Exhibit Ka.3). In his

cross-examination, the witness stated that Shamim who is

his elder brother was brother-in-law of the complainant.

According to this witness, the appellant used to live in the

house of his sister. What was mentioned by the witness

was that Shabnam, daughter of sister of the appellant, was

of the age group of Yasmeen and he was not remembering

correctly whether Kabir, i.e., brother-in-law of the appellant 25

was living with his family in the house from which the

appellant had taken out the clothes of the deceased. It was

mentioned by the witness that the sniffer dog had first smelt

the dead body and then the said dog had entered into house

of Kabir and picked up the appellant. It was further stated

by the witness that the dog did not pick up Mumtaz and

after the smelling by sniffer dog, the police had arrested the

appellant and Mumtaz in his presence. What is testified by

the witness is that many persons had gone up to the police

station and he had also gone to the police station where his

signatures were obtained on Exhibit Ka.3 at about 4.00

p.m. The suggestion made to the witness by the defence

that no clothes were recovered in his presence and that he

was deposing falsely was emphatically denied by him.

13. The testimony of Investigating Officer makes it more

than clear that after arrest, the appellant had made

disclosure statement and willingness to show the place

where the clothes of the deceased were concealed by him.

This fact is also mentioned in Exhibit Ka.3 which was

prepared contemporaneously. According to the

Investigating Officer, he had made efforts to summon local 26

witnesses from Akari Pistor but none had agreed to be a

witness and, therefore, Rais Ahmad and Lakhvinder Singh

were summoned to be panch witnesses on way to the place

to be pointed out by the appellant where he had concealed

the clothes of the deceased. According to this witness, the

appellant and Mumtaz led the police party and the appellant

took out clothes of the deceased, i.e., blood stained frock

and underwear as well as one bed sheet from Kuria meant

for storing foodgrains. The witness further stated that

clothes of the deceased and bed sheets were kept in the

western corner of the room. The witness also informed the

Court that underwears of both the accused were seized and

they appeared to be stained with semen at some places.

The argument that witness Rais Ahmad has not stated

about the disclosure statement at all and, therefore,

discovery of the clothes of the deceased should be

disbelieved cannot be accepted. As explained by the

Investigating Officer, the appellant and Mumtaz had made

disclosure statement when they were at the police station.

The said fact is mentioned in the document prepared

contemporaneously. As explained by the Investigating 27

Officer, he had made efforts to summon two independent

witnesses to act as panchas but none had shown

willingness to do so and, therefore, he had requisitioned

services of Rais Ahmad and another on way to the house of

sister of the appellant from where the clothes of the

deceased were recovered. The contention that that part of

the disclosure statement showing that recovered frock and

underwear were of the deceased and the bed sheet was one

over which rape was committed cannot be read in evidence

has no substance. In the leading case of Pulukuri Kottaya

& Ors. Vs. Emperor AIR 1947 PC 67 what would be

admissible in a disclosure statement has been explained by

the Privy Council giving illustration as under :

"The statements to which exception is taken in this case are first a statement by accused No.6 which he made to the police sub-Inspector and which was reduced into writing, and is Exhibit "P." It is in these terms :

`The mediatornama written at 9 a.m. on 12.1.1945, in front of Maddineni Verrayya's choultry and in the presence of the undersigned mediators.

Statement made by the accused Inala Sydayya on being arrested.

About 14 days ago, I Kotayya and 28

people of my party lay in wait for Sivayya and others at about sunset time at the corner of Pulipad tank.

We, all beat Beddupati China Sivayya and Subayya, to death. The remaining persons, Pullayya, Kotayya and Narayana ran away.

Dondapati Ramayya who was in our party received blows on his hands.

He had a spear in his hands. He gave it to me then. I hid it and my stick in the rick of Venkatanarasu in the village. I will show if you come. We did all this at the instigation of Pulukuri Kotayya.'

(Signed) Potla China mattayya.

( " ) Kotta Krishnayya.

12th January, 1945. (Sgd.) G. Bapaiah, Sub-Inspector of Police.

The whole of that statement except the passage "I hid it (a spear) and my stick in the rick of Venkatanarasu in the village. I will show if you come" is inadmissible. In the evidence of the witness Potla China Mattayya proving the document the statement that accused 6 said "I Mattayya and others went to the corner of the tank-land. We killed Sivayya and Subayya" must be omitted.

A confession of accused 3 was deposed to by the police Sub-Inspector, who said that accused 3 said to him :

`I stabbed Sivayya with a spear, I hid the spear in a yard in my village.

I will show you the place."

The first sentence must be omitted. This was followed by a Mediatornama, Ex.Q.I, 29

which is unobjectionable except for a sentence in the middle,

`He said that it was with that spear that he had stabbed Boddapati Sivayya,'

which must be omitted."

Thus, the part of the disclosure statement, namely,

that he was ready to show the place where he had concealed

the clothes of the deceased is clearly admissible under

Section 27 of the Evidence Act because the same relates

distinctly to the discovery of the clothes of the deceased

from that very place.

The contention that even if it is assumed for the sake

of argument that the clothes of the deceased were recovered

from the house of the sister of the appellant pursuant to the

voluntary disclosure statement made by the appellant, the

prosecution has failed to prove that the clothes so recovered

belonged to the deceased and, therefore, the recovery of the

clothes should not be treated as an incriminating

circumstances is devoid of merits. First of all, what is

relevant to notice is that in the missing report, it was

mentioned by Nayeem Ahmad that his daughter aged five 30

years, who was wearing frock and underwear, was missing

from near the house while playing.; Thus, the wearing of the

frock and underwear was mentioned by the father of the girl

at the first available opportunity. The statement by

Nayeem, PW1, as well as statement made by Shamim, PW2,

that there were no clothes on the dead body of the deceased

has gone unchallenged. Naturally, therefore, it was

necessary for the Investigating Officer to find out as to

where the clothes put on by the deceased were concealed.

What is relevant to notice is that Ms. Bilkis who is sister of

the appellant and who is examined as DW1 mentioned in

her testimony before the Court that the police had taken

into custody the clothes belonging to her daughter

Shabnam. However, the record of the case shows that the

frock and the underwear recovered from the house of Ms.

Bilkis pursuant to disclosure statement made by the

appellant were blood stained. It was never the case of Ms.

Bilkis that the frock and underwear recovered or seized by

the police were blood stained and belonged to her daughter

Shabnam. Further, the clothes were recovered pursuant to

the voluntary disclosure statement made by the appellant 31

on February 9, 1998 whereas Ms. Bilkis made claim that

the clothes, which belonged to her daughter, were recovered

and seized on September 30, 2003 when she was examined

by the appellant as one of the defence witnesses. If the

police had seized the clothes belonging to her daughter, Ms.

Bilkis would not have maintained tacit silence for roughly

about more than five years and would have made grievance

before higher police officers or court within reasonable time.

A bare reading of her testimony makes it more than clear

that she had come to depose before the Court to save the

appellant who is her real brother and stated wrong facts for

the first time before the Court. Her case that the police

personnel had given 2 to 4 blows of stick to her and

threatened her that she and her husband would be

implicated in the case, does not inspire confidence of this

Court. Further, Exhibit Ka.3 which is seizure memo of the

clothes of the deceased recovered from the house of Ms.

Bilkis pursuant to the disclosure statement made by the

appellant, mentions that the frock recovered was made of

terry-cotton fabric and its upper portion was white whereas

lower portion was brown coloured and there were prints of 32

flowers. The panchnama further indicates that it was

sleeveless and stained with blood marks. Similarly,

underwear discovered was made of cotton. It was white in

colour with black stripes having blood stains. Though

Bilkis who was examined as DW1 claimed that the clothes

recovered from her house belonged to her daughter

Shabanam, she could not give description of either frock or

the underwear seized during the course of her testimony

before the court. On overall view of the matter, this Court

finds that it was satisfactorily proved by the prosecution

that the frock and underwear, recovered from the house of

DW1 Ms. Bilkis pursuant to the voluntary disclosure

statement made by the appellant, belonged to the deceased.

14. Yet another circumstance relied upon by the

prosecution is that the underwear of the appellant was

stained with blood and semen. The fact that underwear put

on by the appellant was seized under a panchnama is not

disputed on behalf of the appellant at all. The High Court

ignored this circumstance stating that the appellant was

young and, therefore, find of semen stains was natural.

However, the High Court ignored the material fact that in 33

normal course, the underwear would not have blood stains

at all and, therefore, it was for the appellant to offer

explanation as to under what circumstances stains of blood

were found on his underwear, seized by the police during

the course of investigation. The fact that the underwear of

the appellant seized by the police had human blood stains is

sufficiently proved by the contents of report of Chemical

Analyst. The fact that the blood stained underwear put on

by the appellant was seized after four days does not make

any dent in the prosecution case on the ground that a

person would not move with such blood stained underwear

for 3 - 4 days. One cannot lose sight of the fact that those

stains were not visible and even the Investigating Officer

had stated that on examination the underwear put on by

the appellant appeared to be stained with semen at some

places. If blood stains are found on the shirt or pant of a

person then normally such person would not move in the

village with those clothes on, because stains of blood would

be visible and noticed by anyone. However, it is almost

difficult for anyone to notice stains of blood on underwear

worn by a person. Further, the sense of cleanliness of a 34

rustic villager cannot be ignored by the Court. While

recording the statement of the appellant under Section 313

of the Code, it was put to him by the learned Judge that

during the course of investigation his blood stained

underwear was seized by the Police and his explanation was

sought. In answer to the said question, it was never

claimed by the appellant that the underwear seized was not

blood stained and that another underwear was substituted

in place of his underwear which was seized. Thus, this

Court finds that the High Court was not justified at all in

ignoring the circumstance sought to be relied upon by the

prosecution that blood stained underwear of the appellant

was recovered during the course of investigation.

15. Another circumstance sought to be relied upon by the

prosecution is that the appellant made extra judicial

confession before PW5, Anand Swaroop. The evidence of

this witness shows that he was one of the panchas when

inquest on the dead body of the deceased was held. During

the course of his testimony, the witness identified his

signature on the inquest report which was produced by the

prosecution at Exhibit Ka.4. According to this witness, on 35

February 23, 1998, he had been to Kasipur Court in

connection with some work. What is asserted by the

witness is that the appellant who is brother-in-law of Kabir

had come to Court premises and told him near the shops

that he and Mumtaz had killed Yasmeen after committing

rape on her. The witness further asserted that the reason

for making extra judicial confession by the appellant was

that he was ex-pradhan of the village and the appellant was

under an impression that the witness would be able to help

him by approaching the police. This witness in no

uncertain terms asserted before the court that he had told

the Investigating Officer about the extra judicial confession

made by the appellant.

In his cross-examination, the witness stated that

police had recorded his statement only once. According to

the witness, police had recorded his statement sometime

between 23 to 29th February, 1998 in the village. What is

mentioned by the witness in his cross-examination is that

the appellant had come after February 23, 1998 and,

therefore, he had not thought it necessary to tell the police

about the extra judicial confession made by the appellant. 36

The suggestion made by the defence that the police used to

visit house of this witness daily or that the witness used to

go to the police station daily, is denied by the witness. The

manner in which this suggestion is made to the witness

indicates that the appellant was entertaining a notion that

the witness would be in a position to help him because the

witness that the witness was going to the Police Station

daily and policemen were also visiting him. In the cross-

examination also, the witness maintained that the appellant

had met him on February 23, 1998 in the court premises

and neither the appellant nor Mumtaz was in the lockup

nor inside the court room and that the appellant had made

the confession near the shops. The witness explained to the

court as to why he had gone to the court and according to

him he had gone to the court premises to meet one Ashish

Sharma, legal adviser of the bank for getting his brother's

NOC prepared. The witness further mentioned before the

Court that the appellant and Mumtaz had met him between

11.30 and 12 noon. The suggestion made by the defence

that it was wrong to say that the appellant had made any

confessional statement was emphatically denied by him. It 37

may be mentioned that this witness in the cross-

examination had stated that the appellant was not on

talking or visiting terms with him before February 23, 1998

and, therefore, it was argued that there was no reason for

the appellant to confide in this witness. However, what is

relevant to notice is that the witness was ex-pradhan of

Bajpur village. Ex-Pradhan certainly enjoys a status in a

small village. The case of the defence was that the appellant

was knowing that the witness was close to the police and

was going to the Police Station daily. Under the

circumstances, thinking that the witness would be able to

render some help to him, the appellant had made extra

judicial confession. The Court, on re-appreciation of

evidence, finds that it is not brought on the record of the

case that this witness was on inimical terms with the

appellant. In fact, this witness does not belong to the

community of the appellant and belongs to another

community. There was no earthly reason for this witness to

come to the court and depose falsely about the extra judicial

confession made by the appellant. Though extra judicial

confession is considered to be a weak piece of evidence by 38

the courts, this Court finds that there is neither any rule of

law nor of prudence that the evidence furnishing extra

judicial confession cannot be relied upon unless

corroborated by some other credible evidence. The evidence

relating to extra judicial confession can be acted upon if the

evidence about extra judicial confession comes from the

mouth of a witness who appears to be unbiased and in

respect of whom even remotely nothing is brought out which

may tend to indicate that he may have a motive for

attributing an untruthful statement to the accused. In

State of U.P. vs. M.K. Anthony AIR 1985 SC 48, this Court,

while explaining the law relating to extra judicial confession,

ruled that if the word spoken by the witness are clear,

unambiguous and unmistakable one showing that the

accused is the perpetrator of the crime and nothing is

omitted by the witness which may militate against it, then

after subjecting the evidence of the witness to a rigorous

test on the touchstone of credibility, the extra judicial

confession can be accepted and can be the basis of a

conviction. According to this Court, in such a situation, to

go in search of corroboration itself tends to cause a shadow 39

of doubt over the evidence and if the evidence of extra

judicial confession is reliable, trustworthy and beyond

reproaching, the same can be relied upon and a conviction

can be founded thereon. Here, in this case, it is proved by

the prosecution that PW5, Anand Swaroop was not on

inimical terms with the appellant at all. After subjecting his

evidence to a rigorous test on the touchstone of credibility,

this Court finds that extra judicial confession referred to by

the witness is reliable and is rightly accepted by the Trial

Court and the High Court. The contention that when the

appellant was being brought to the court, he was in custody

and, therefore, the extra judicial confession referred to by

PW5 would be hit by the provisions of Section 26 of the

Evidence Act and could not have been received in evidence,

cannot be accepted. As observed earlier, the record shows

that the appellant and another were produced before the

Court for extension of judicial remand. The appellant could

not probablise his defence that he was in custody of police

officer. He could not name the police officer who had

brought him with Mumtaz to the Court premises for

extension of judicial remand nor it is his case that to the 40

hearing of the police officer who brought him to the court

premises, he had made confessional statement before PW5.

On the facts and in the circumstances of the case, This

Court is of the opinion that it is not probablised by the

defence that the appellant was in custody of police officer

while he had made extra judicial confession before PW5.

The evidence relating to extra judicial confession inspires

confidence of this Court. On this point, there is concurrent

finding by the courts below and no case is made out by the

appellant to interfere with the said finding in the present

appeal.

16. The net result of the above discussion is that the

prosecution has proved satisfactorily and beyond shadow of

doubt following facts:

(1) The deceased went missing in the evening of February

5, 1998 when she was playing near her house.

(2) Her naked dead body was found at about 6 a.m. on

February 8, 1998 lying on public way in front of house

of Haji Khursheed.

(3) She was subjected to rape and died a homicidal death. 41

(4) The appellant was seen fleeing away from near the

place where the dead body of the deceased was lying at

about 4.30 a.m. on February 8, 1998.

(5) Blood stained frock and blood stained underwear of

the deceased concealed in the house of sister of the

appellant, were recovered pursuant to voluntary

disclosure statement made by the appellant while in

police custody.

(6) Underwear of the appellant seized during the course of

investigation was found to be stained with blood and

semen.

(7) The appellant made extra judicial confession before

PW5, Anand Swaroop.

17. The cumulative effect of the abovementioned facts

taken together is conclusive in establishing the guilt of the

appellant. The chain of circumstantial evidence is complete

and does not leave any reasonable ground for conclusion

consistent with the innocence of the appellant. The chain of

circumstances is such as to show that within all human

probability the rape and murder of the deceased were 42

committed by the appellant and none else and he had also

caused disappearance of evidence of those offences. This

Court further notices that this Court in Vasa

Chandrasekhar Rao vs. Ponna Satyanarayana & Anr.

[(2000) 6 SCC 286] and Geetha vs. State of Karnataka

[(2000) 10 SCC 72] while explaining the law relating to

circumstantial evidence has ruled that where circumstances

proved are put to the accused through his examination

under Section 313 of the Code and the accused merely

denies the same, then such denial would be an additional

link in the chain of circumstances to bring home the charge

against the accused. As indicated earlier, it is proved by

cogent and reliable evidence that the appellant had

committed rape on the deceased and thereafter murdered

her. Here in this case, the incriminating circumstances

proved were put to the appellant while recording his

statement under Section 313 of the Code of Criminal

Procedure. In his further statement, recorded under

Section 313, the appellant has merely denied the same.

Therefore, such denial on the part of the appellant and

failure to explain the circumstances proved will have to be 43

treated as an additional link in the chain of circumstances

to bring home the charge against the appellant. The

circumstances proved establish the guilt of the appellant

beyond reasonable doubt.

18. Thus, this Court does not find any substance in the

appeal and the same is liable to be dismissed. Accordingly,

the appeal fails and is dismissed.

................................J. [J.M. Panchal]

................................J. [T.S. Thakur]

New Delhi;

January 12, 2010.