State Of Rajasthan vs Raja Ram

The State of Rajasthan is in appeal questioning legality of

judgment of the High Court of Rajasthan at Jodhpur Bench, holding that

the respondent was innocent and was entitled to acquittal from the

charges levelled against him for alleged commission of offence

punishable under Section 302, Indian Penal Code, 1860 (for short IPC).

The accused was held to be guilty by the learned Additional Session

Judge, Hanumangarh who awarded a death sentence on finding the accused

guilty.

Accusations which laid foundation of the prosecution case reveal

that information was given by Sahi Ram (PW-6) on 20.12.1989 at about

7.15 a.m. at the Sangaria Police Station to the effect that his younger

brother was responsible for homicidal death of 5 persons, that is, his

father, younger brother, the younger brother's wife and their two

children. The killings were on account of gunshots and murders were

committed on 19.12.1989. On the basis of information lodged

investigations were undertaken and on completion thereof charge sheet

was filed stating that offences punishable under Section 302 IPC and

Section 27 of Indian Arms Act, 1959 (for short 'Arms Act') were

committed, the appellant was described as the assailant. In order to

further its version, 7 witnesses were examined. The prosecution

version rests on circumstantial evidence. The accused examined himself

as DW-1 and placed on record materials to attack the credibility of

evidence tendered by PW-3 & 4; more particularly it was stated that

they were not favourably disposed towards him, and had falsely

implicated him. Accepting the version of Vinod Kumar (PW-3) and Nand

Ram (PW-4) before whom allegedly the accused made extra judicial

confession, the Trial Court found the accused guilty of offence

punishable under Section 302 IPC as noted above and awarded death

sentence in addition to the fine of Rs.5000. However, it was found

that the accusations relating to Section 27 of the Arms Act were not

established. As death sentence has been awarded, a reference was made

to the High Court under Section 366 of the Code of Criminal Procedure,

1973 (in short the 'Code') for confirmation. An accused also filed an

appeal. In appeal as noted at the threshold, the High Court found the

evidence to be inadequate to fasten the guilt on the accused and,

therefore, prosecution version to be vulnerable. The evidence of PW-3

and PW-4 which formed foundation of the Trial Court's judgment did not

find acceptance by the High Court finding the evidence to be unreliable

and incogent.

The learned counsel for the appellant-State in support of the

appeal submitted the approach of the High Court is erroneous. There

was no infirmity in the evidence of PW-3 and PW-4 to warrant rejection

of their evidence. They were related to both the accused and the

deceased and there is no reason as to why they would falsely implicate

the accused. Conduct of the accused, which was found to be suspect by

the Trial Court, has been overlooked by the High Court while directing

acquittal. The wearing apparels of the accused contained bloodstains

and since the accused did not explain as to how the blood stains

appeared on such apparels, that itself is a suspicious circumstance,

which the High Court overlooked.

The circumstances highlighted to fasten the guilt on the accused

are as follows:-

(1) Extra judicial confession of the offence made by

the accused before the witnesses.

(2) Immediately after the incident the accused was

seen coming from the side of the dhani of the

deceased Maniram.

(3) The conduct of the accused immediately after the

incident.

(4) Human blood being found on the clothes of the

accused

(5) Recovery of pistol being got made by the accused.

It is noted that circumstances 1, 2 and 3 related to the evidence

of PWs-3 & 4. The pistol which was allegedly recovered on being pointed

out by the accused was found to be not one from which bullets found on

the dead bodies were fired.

Learned counsel for the respondent-accused submitted that the

case rests on circumstantial evidence and the chain of circumstances

highlighted by the prosecution did not lead to the inevitable

conclusion that ruled out others and established that accused alone was

responsible for the crime. It was further submitted that considering

the fact that the appeal is against an order of acquittal, scope for

interference is very limited. The evidence of PW-3 & 4 has been

rightly discarded and there is no reason as to why the well-reasoned

judgment of the High Court should be interfered with.

There is no embargo on the appellate Court reviewing the evidence

upon which an order of acquittal is based. Generally, the order of

acquittal shall not be interfered with because the presumption of

innocence of the accused is further strengthened by acquittal. The

golden thread which runs through the web of administration of justice

in criminal cases is that if two views are possible on the evidence

adduced in the case, one pointing to the guilt of the accused and the

other to his innocence, the view which is favourable to the accused

should be adopted. The paramount consideration of the Court is to

ensure that miscarriage of justice is prevented. A miscarriage of

justice which may arise from acquittal of the guilty is no less than

from the conviction of an innocent. In a case where admissible evidence

is ignored, a duty is cast upon the appellate Court to re-appreciate

the evidence in a case where the accused has been acquitted, for the

purpose of ascertaining as to whether any of the accused committed any

offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh

(JT 2002 (3) SC 387)]. The principle to be followed by appellate Court

considering the appeal against the judgment of acquittal is to

interfere only when there are compelling and substantial reasons for

doing so. If the impugned judgment is clearly unreasonable, it is a

compelling reason for interference. These aspects were highlighted by

this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra

(1973 (3) SCC 193), Ramesh Babulal Doshi v. State of Gujarat (1996 (9)

SCC 225) and Jaswant Singh v. State of Haryana (JT 2000 (4) SC 114).

Before analyzing factual aspects it may be stated that for a

crime to be proved it is not necessary that the crime must be seen to

have been committed and must, in all circumstances be proved by direct

ocular evidence by examining before the Court those persons who had

seen its commission. The offence can be proved by circumstantial

evidence also. The principal fact or factum probandum may be proved

indirectly by means of certain inferences drawn from factum probans,

that is, the evidentiary facts. To put it differently circumstantial

evidence is not direct to the point in issue but consists of evidence

of various other facts which are so closely associated with the fact in

issue that taken together they form a chain of circumstances from which

the existence of the principal fact can be legally inferred or

presumed.

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

case rests squarely on circumstantial evidence, the inference of guilt

can be justified only when all the incriminating facts and

circumstances are found to be incompatible with the innocence of the

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

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

1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446);

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

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

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

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

reasonable doubt and have to be shown to be closely connected with the

principal fact sought to be inferred from those circumstances. In

Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that

where the case depends upon the conclusion drawn from circumstances the

cumulative effect of the circumstances must be such as to negative the

innocence of the accused and bring the offences home beyond any

reasonable doubt.

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

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

has been observed thus:

"In a case based on circumstantial

evidence, the settled law is that the

circumstances from which the conclusion of

guilt is drawn should be fully proved and such

circumstances must be conclusive in nature.

Moreover, all the circumstances should be

complete and there should be no gap left in the

chain of evidence. Further the proved

circumstances must be consistent only with the

hypothesis of the guilt of the accused and

totally inconsistent with his innocence....".

In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC

79), it was laid down that when a case rests upon circumstantial

evidence, such evidence must satisfy the following tests:

"(1) the circumstances from which an inference of

guilt is sought to be drawn, must be cogently and

firmly established;

(2) those circumstances should be of a definite

tendency unerringly pointing towards guilt of the

accused;

(3) the circumstances, taken cumulatively should

form a chain so complete that there is no escape from

the conclusion that within all human probability the

crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain

conviction must be complete and incapable of

explanation of any other hypothesis than that of the

guilt of the accused and such evidence should not

only be consistent with the guilt of the accused but

should be inconsistent with his innocence.

In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104),

it was pointed out that great care must be taken in evaluating

circumstantial evidence and if the evidence relied on is reasonably

capable of two inferences, the one in favour of the accused must be

accepted. It was also pointed out that the circumstances relied upon

must be found to have been fully established and the cumulative effect

of all the facts so established must be consistent only with the

hypothesis of guilt.

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".

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.

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

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

"It is well to remember that in cases where

the evidence is of a circumstantial nature, the

circumstances from which the conclusion of guilt is

to be drawn should be in the first instance be fully

established and all the facts so established should

be consistent only with the hypothesis of the guilt

of the accused. Again, the circumstances should be

of a conclusive nature and tendency and they should

be such as to exclude every hypothesis but the one

proposed to be proved. In other words, there must be

a chain of evidence so far complete as not to leave

any reasonable ground for a conclusion consistent

with the innocence of the accused and it must be

such as to show that within all human probability

the act must have been done by the accused."

A reference may be made to a later decision in Sharad Birdhichand

Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while

dealing with circumstantial evidence, it has been held that onus was on

the prosecution to prove that the chain is complete and the infirmity

of lacuna in prosecution cannot be cured by false defence or plea. The

conditions precedent in the words of the 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 compete 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.

The case at hand has to be gauzed in the background of aforesaid

principles. The evidence of PW-3 & 4 as noted above form the

foundation of the prosecution case. It was noted by the High Court

that PW-4 was not in good terms with the accused and, in fact, a case

had been lodged by the accused against PW-4 a few months before the

incident.

Confessions may be divided into two classes, i.e. judicial and

extra-judicial. Judicial confessions are those which are made before

Magistrate or Court in the course of judicial proceedings. Extra-

judicial confessions are those which are made by the party elsewhere

than before a Magistrate or Court. Extra judicial confessions are

generally those made by a party to or before a private individual which

includes even a judicial officer in his private capacity. It also

includes a Magistrate who is not especially empowered to record

confessions under Section 164 of the Code or a Magistrate so empowered

but receiving the confession at a stage when Section 164 does not

apply. As to extra-judicial confessions, two questions arise: (i) were

they made voluntarily? And (ii) are they true? As the section enacts, a

confession made by an accused person is irrelevant in a criminal

proceedings, if the making of the confession appears to the Court to

have been caused by any inducement, threat or promise, (1) having

reference to the charge against the accused person, (2) proceeding from

a person in authority, and (3) sufficient, in the opinion of the Court

to give the accused person grounds which would appear to him reasonable

for supposing that by making it he would gain any advantage or avoid

any evil of a temporal nature in reference to the proceedings against

him. It follows that a confession would be voluntary if it is made by

the accused in a fit state of mind, and if it is not caused by any

inducement, threat or promise which has reference to the charge against

him, proceeding from a person in authority. It would not be

involuntary, if the inducement, (a) does not have reference to the

charge against the accused person, or (b) it does not proceed from a

person in authority; or (c) it is not sufficient, in the opinion of the

Court to give the accused person grounds which would appear to him

reasonable for supposing that, by making it, he would gain any

advantage or avoid any evil of a temporal nature in reference to the

proceedings against him. Whether or not the confession was voluntary

would depend upon the facts and circumstances of each case, judged in

the light of Section 24. The law is clear that a confession cannot be

used against an accused person unless the Court is satisfied that it

was voluntary and at that stage the question whether it is true or

false does not arise. If the facts and circumstances surrounding the

making of a confession appear to cast a doubt on the veracity or

voluntariness of the confession, the Court may refuse to act upon the

confession, even if it is admissible in evidence One important

question, in regard to which the Court has to be satisfied with is,

whether when the accused made confession, he was a free man or his

movements were controlled by the police either by themselves or through

some other agency employed by them for the purpose of securing such a

confession. The question whether a confession is voluntary or not is

always a question of fact. All the factors and all the circumstances of

the case, including the important factors of the time given for

reflection, scope of the accused getting a feeling of threat,

inducement or promise, must be considered before deciding whether the

Court is satisfied that its opinion the impression caused by the

inducement, threat or promise, if any, has been fully removed. A free

and voluntary confession is deserving of highest credit, because it is

presumed to flow from the highest sense of guilt. [See R. v.

Warwickshall: (1783) Lesch 263)]. It is not to be conceived that a man

would be induced to make a free and voluntary confession of guilt, so

contrary to the feelings and principles of human nature, if the facts

confessed were not true. Deliberate and voluntary confessions of guilt,

if clearly proved, are among the most effectual proofs in law. An

involuntary confession is one which is not the result of the free will

of the maker of it. So where the statement is made as a result of the

harassment and continuous interrogation for several hours after the

person is treated as an offender and accused, such statement must be

regarded as involuntary. The inducement may take the form of a promise

or of threat, and often the inducement involves both promise and

threat, a promise of forgiveness if disclosure is made and threat of

prosecution if it is not. (See Woodroffe Evidence, 9th Edn. Page 284). A

promise is always attached to the confession, alternative while a

threat is always attached to the silence-alternative; thus, in the one

case the prisoner is measuring the net advantage of the promise, minus

the general undesirability of a false confession, as against the

present unsatisfactory situation; while in the other case he is

measuring the net advantages of the present satisfactory situation,

minus the general undesirability of the confession against the

threatened harm. It must be borne in mind that every inducement,

threat or promise does not vitiate a confession. Since the object of

the rule is to exclude only those confessions which are testimonially

untrustworthy, the inducement, threat or promise must be such as is

calculated to lead to an untrue confession. On the aforesaid analysis

the Court is to determine the absence or presence of inducement,

promise etc. or its sufficiency and how or in what measure it worked on

the mind of the accused. If the inducement, promise or threat is

sufficient in the opinion of the Court, to give the accused person

grounds which would appear to him reasonable for supposing that by

making it he would gain any advantage or avoid any evil, it is enough

to exclude the confession. The words 'appear to him' in the last part

of the section refer to the mentality of the accused.

An extra-judicial confession, if voluntary and true and made in a

fit state of mind, can be relied upon by the Court. The confession

will have to be proved like any other fact. The value of the evidence

as to confession, like any other evidence, depends upon the veracity of

the witness to whom it has been made. The value of the evidence as to

the confession depends on the reliability of the witness who gives the

evidence. It is not open to any Court to start with a presumption that

extra-judicial confession is a weak type of evidence. It would depend

on the nature of the circumstances, the time when the confession was

made and the credibility of the witnesses who speak to such a

confession. Such a confession can be relied upon and conviction can be

founded thereon if the evidence about the confession comes from the

mouth of witnesses who appear to be unbiased, not even remotely

inimical to the accused, and in respect of whom nothing is brought out

which may tend to indicate that he may have a motive for attributing an

untruthful statement to the accused, the words spoken to by the witness

are clear, unambiguous and unmistakably convey that the accused is the

perpetrator of the crime and nothing is omitted by the witness which

may militate against it. 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 if it

passes the test of credibility.

If the evidence relating to extra judicial confession is found

credible after being tested on the touchstone of credibility and

acceptability, it can solely form the basis of conviction. The

requirement of corroboration as rightly submitted by learned counsel

for the respondent-accused, is a matter of prudence and not a

invariable rule of law. It is improbable, as rightly held by the High

Court that the accused would repose confidence on a person who is

enemically disposed towards him, and confess his guilt. Similarly, PW-

3 is a close relative of PW-4 and as records reveal, a person of

doubtful antecedents being a history sheeter. Though that alone cannot

be the ground to discard his evidence, the totality of circumstances

cast an indelible shadow of doubt on his evidence. It is to be noted

that accused examined himself as DW-1. Though it was the prosecution

version that there was also extra judicial confession before informant

Sahi Ram (PW-6) that was disbelieved by both the Trial Court and the

High Court in view of the fact that he stated differently from what was

allegedly stated by him during investigation. He disowned that the

accused made any confessional statement before him. Though the

prosecution during cross-examination of the accused (DW-1) suggested

that he had made extra judicial confession before PW-6, significantly

not even such a suggestion was given in respect of PW-3 & 4.

Coming to the bloodstains on the cloth which were allegedly

seized on being pointed out by the accused, the forensic laboratory

report indicated that there were blots of human blood on the shirts and

trousers of the accused. There was no effort to find out the blood

group. In fact, the High Court noted this position and observed that

presence of PW-4 at the time of recovery is doubtful as he has been

found to be an unreliable witness. It was observed that even if it is

accepted that there was existence of blood, this circumstance is not

such from which it can be found that the accused was perpetrator of the

crime. In the aforesaid report (Ex.61) it was clearly stated that the

blood group of blood found on the clothes could not be determined.

Neither the blood group of the deceased nor that of the accused was

determined. In that background, the High Court held that the

possibility of the blood being that of the accused cannot be ruled out.

In view of the findings recorded by the High Court about the non-

acceptability by evidence relating to alleged extra judicial

confession, the conclusions of the High Court cannot be said to be one

which are unsupportable. We decline to interfere in the appeals, and

the same are dismissed.