Inspector Of Police, Tamil Nadu v. Bala Prasanna .

Dr. Arijit Pasayat, J.— Leave granted.

2. Challenge in this appeal is to the order of a Division Bench of the Madras High Court allowing the appeal filed by the respondent (hereinafter referred to as “the accused”). The accused was convicted for the offence punishable under Section 302 of the Penal Code, 1860 (in short “IPC”) and sentenced to undergo imprisonment for life and to pay a fine of Rs 10,000 with default stipulation by the Principal District Judge, Madurai. He was also convicted for the offences punishable under Section 392 read with Section 397 IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine.

3. Background facts in a nutshell are as follows:

The deceased is one Mayurani, a Sri Lankan student, who was residing in the first floor of the house belonging to one Solsimalai (PW 1). The accused is also a Sri Lankan student studying in a different college, but staying in the second floor of the same premises. The occurrence allegedly took place in the afternoon of 22-4-2003. The first information report was lodged by PW 1 on 24-4-2003 at about 9.30 a.m It was indicated in the first information report that on 24-4-2003 at 9.00 a.m, while the informant had gone to perform pooja in the first floor of the house, he got foul smell in the last room of the first floor and found blood seeping through the front door. On opening the window he noticed that Mayurani was lying in a pool of blood with her face covered with a bag. On the basis of the aforesaid FIR, investigation was taken up initially by PW 40. Subsequently, on the basis of the order of the High Court, such investigation was completed by PW 42.

4. The accused is stated to have been arrested on suspicion on 26-4-2003. On the basis of the statement of the accused, the prosecution discovered many materials including a knife and a log allegedly used for killing.

5. Initially, PW 40 suspected the role of PW 1, his wife PW 2, PW 3, from whose house certain incriminating materials were recovered allegedly on the basis of the statement of the accused as well as of PW 4, who was working as a cleaner in the vehicle of PW 1. Subsequently, however, PW 42, who took over the investigation from PW 40 filed charge-sheet only against the present appellant on the footing that PWs 1 to 4 had no role to play in the crime.

6. The prosecution relied upon only circumstantial evidence, namely, confessional statements of the accused leading to recovery of various incriminating materials. Ext. P-6 is the statement leading to recovery of travel bags (MOs 2 and 3), knife (MO 5), wooden log (MO 28), rubber gloves (MO 29 series) cotton rope with human hair (MO 30 series), two sponges soaked with blood (MO 31 series), bloodstained blue-coloured jeans pant (MO 32), bloodstained white banian (MO 33), coloured banian (MO 34), bloodstained grey-coloured pant (MO 35), bloodstained pillow (MO 36), plastic bucket (MO 37) from the house of PW 3. Ext. P-8 is the statement leading to recovery of computer and its accessories (MOs 6 to 17) from the house of PW 15, a classmate of the accused. Ext. P-10 is the statement relating to jewelleries, ultimately leading to recovery of gold ingots (MO 18 series) from the house of PW 19 on the basis of other connecting statements of PW 17 and PW 18. These three statements, Exts. P-6, P-8 and P-10 dated 26-4-2003, were made before PW 40 in the presence of PW 22 and CW 1.

7. The other confessional statement, Ext. P-12 dated 22-9-2003 made before PW 42 and Subbiah and PW 24, led to recovery of “M” dollar (MO 38) and key chain with key (MO 39) from the toilet in the room of the accused. The prosecution has also relied upon the alleged motive to the effect that the accused urgently wanted money with a view to increase his marks in mathematics and, therefore, the accused had stolen articles belonging to the deceased.

8. The trial court found the respondent guilty and recorded conviction and imposed sentence as aforestated. The trial court found that the prosecution version rested on circumstantial evidence. The following circumstances were highlighted to find the accused guilty:

(a) The death is homicidal;

(b) The accused was in need of money to chase mathematics paper and for the aforesaid purpose he has killed the deceased to take away the valuable articles like computer and gold ornaments to sell such articles in the market.

(c) At the time of occurrence, only the accused, deceased and PW 9 were available in the premises and there was no other person.

(d) Statement of the accused leading to recovery of incriminating materials such as knife, rope, clothes, wooden log and other valuable articles such as computer, gold ornaments, “M” dollar and the key chain with key belonging to the deceased.

9. The High Court found that the circumstances highlighted were not sufficient to fasten the guilt on the accused, and directed acquittal. Learned counsel for the appellant submitted that the High Court failed to notice that the circumstances highlighted clearly establish the chain of circumstances which established the prosecution version and the High Court was not justified in directing acquittal.

10. Learned counsel for the respondent on the other hand supported the judgment of the High Court.

11. The conviction based on circumstantial evidence has been highlighted by this Court in various orders of this Court.

12. “9. 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 (1977) 2 SCC 99, AIR 1977 SC 1063, Eradu v. State of Hyderabad AIR 1956 SC 316, Earabhadrappa v. State of Karnataka (1983) 2 SCC 330, AIR 1983 SC 446, State of U.P v. Sukhbasi 1985 Supp SCC 79, AIR 1985 SC 1224, Balwinder Singh v. State of Punjab (1987) 1 SCC 1, AIR 1987 SC 350 and Ashok Kumar Chatterjee v. State of M.P 1989 Supp (1) SCC 560, 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.

10. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P (1996) 10 SCC 193 wherein it has been observed thus:

‘21. 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.’

11. In Padala Veera Reddy v. State of A.P 1989 Supp (2) SCC 706, 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.’

12. In State of U.P v. Ashok Kumar Srivastava (1992) 2 SCC 86, 1992 Cri 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.

13. 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; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.’

14. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.

15. In Hanumant Govind Nargundkar v. State of M.P AIR 1952 SC 343 it was observed thus: (AIR pp. 345-46, para 10)

‘10. … 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.’

16. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, AIR 1984 SC 1622. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or 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 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.”

These aspects were highlighted in State of Rajasthan v. Raja Ram (2003) 8 SCC 180 and State of Haryana v. Jagbir Singh (2003) 11 SCC 261.

13. The main circumstances relied upon by the prosecution relate to the statements of the accused leading to discovery of materials facts, admissible under Section 27 of the Evidence Act, 1872 (in short “the Evidence Act”).

14. Law is well settled that the prosecution while relying upon the confessional statement leading to discovery of articles under Section 27 of the Evidence Act has to prove through cogent evidence that the statement has been made voluntarily and leads to discovery of the relevant facts. The scope and ambit of Section 27 of the Evidence Act had been stated and restated in several decisions of this Court. However, in almost all such decisions reference is made to the observation of the Privy Council in Pulukuri Kotayya v. King Emperor (1946-47) 74 IA 65, AIR 1947 PC 67. It is worthwhile to extract such quoted observation: (IA p. 77)

“[I]t is fallacious to treat the “fact discovered” within the section as equivalent to the object produced; 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. 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. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It 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. But if 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.”

15. “15. At one time it was held that the expression “fact discovered” in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression “fact discovered” includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kotayya case (1946-47) 74 IA 65, AIR 1947 PC 67….

16. The various requirements of the section can be summed up as follows:

(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.

(2) The fact must have been discovered.

(3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act.

(4) The person giving the information must be accused of any offence.

(5) He must be in the custody of a police officer.

(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.

(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.

17. As observed in Pulukuri Kotayya case (1946-47) 74 IA 65, AIR 1947 PC 67 it can seldom happen that information leading to the discovery of a fact forms the foundation of the prosecution case. It is one link in the chain of proof and the other links must be forged in a manner allowed by law. To similar effect was the view expressed in K. Chinnaswamy Reddy v. State of A.P AIR 1962 SC 1788”

16. The above position was highlighted in Anter Singh v. State of Rajasthan (2004) 10 SCC 657, AIR 2004 SC 2865

17. In Rammi v. State of M.P (1999) 8 SCC 649, AIR 1999 SC 3544 the scope and ambit of Section 27 of the Evidence Act was analysed in great detail and it was concluded in para 12 as follows:

“12. True, such information is admissible in evidence under Section 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.”

18. Significantly, the prosecution has relied upon the evidence of PW 40 who was investigating initially. His evidence has to be considered in the background of what has been stated by PW 22 and CW 1. It has been accepted by the prosecution that great efforts were made by PW 40 to falsely implicate PWs 1 to 4 and for that purpose a departmental proceeding was initiated. Even according to the statement of the subsequent investigating officer (PW 42), several blank papers with the signatures of PW 22 and CW 1 had been taken by PW 40 and such documents had been used to create false records to implicate PWs 1 to 4. It is to be noted that PW 3 himself was one of the suspected persons at the initial stage of investigation.

19. That apart, materials on record such as the statement of PW 22 recorded under Section 164 of the Code of Criminal Procedure, 1973 (in short “the Code”) and the statement of CW 1, raise a reasonable doubt relating to voluntariness of the alleged confession. PW 22, who is a close relation of the deceased (cousin) has stated that two days after the occurrence, after the information that Bala Prasanna was roaming near LIC Colony, Anna Nagar Police brought him to the police station and Bala Prasanna was arrested at 5.00 p.m and was taken to the police station and a witness was present there. It is further stated that at the time of enquiry, the accused was beaten up by the police and they have seized a gold ring and Rs 5000 cash from him. If this is the statement of PW 22 recorded under Section 164 of the Code a witness in whose presence the confessional statement leading to discovery of articles from the house of Hajeeali, PW 3 had been made, it raises serious doubt regarding the voluntariness of the statement. In this context, it is also noteworthy to indicate that CW 1 in his evidence has stated that the accused was in the police station on 24-4-2003 itself. Similar statement is made by PW 4. That apart, CW 1 has stated that no statement has been made in his presence. The prosecution version to the effect that even some signatures on blank papers had been taken from PW 22 and CW 1 thus assumes great importance.

20. The alleged statement made by the accused led to discovery of knife, bloodstained clothes, rope, etc. Unfortunately, for the prosecution there is no evidence to show that in fact the wearing apparels containing bloodstains belonged to the accused, save and except the alleged confessional statement. No witness has spoken that those clothes were worn by the accused at any time far less at or about the time of occurrence. It is also to be kept in view that those articles were recovered from the house of PW 3 and at the initial stage of investigation, PW 3 himself was one of the suspected persons and he was arrested. Therefore, the statement of PW 3 and his mother that those articles were brought by the accused and left in the upstairs room is to be considered with a pinch of salt. Moreover, there is nothing to indicate that in fact the bloodstained clothes and rope had tallied with the blood group of the deceased. The knife did not contain any bloodstain. Therefore, the aspect relating to recovery of articles from the house of PW 3 and his mother cannot be considered as a link to complete the chain of circumstantial evidence.

21. The next recovery relates to recovery of computer and accessories. Apart from the fact that there is niggling doubt about the so-called confession, in view of the statement under Section 164 of the Code by PW 22 and the statement of CW 1, a further doubt is raised regarding such aspect in view of evidence of CW 1 to the effect that he had seen such computer in the room of the deceased when they had gone to the room after the offence was reported. The fact that CW 1 is a close relation of the deceased adds weight to his evidence rather than taking it away. Even accepting that the computer had been given to PW 15 by the accused, such circumstance by itself does not unerringly point towards the guilt of the accused either in respect of the offence of murder or even robbery. It is quite possible that such articles might have been borrowed by the accused from the deceased and not necessarily stolen by the accused from the deceased after killing her. The fact that PW 9 had not initially stated anything before PW 40 about the accused coming down with computer at 3.30 p.m and stated so for the first time when she was re-examined after five months cannot be lost sight of. As a matter of fact, PW 9 who was examined on the very date when the police started investigation did not inform the police that she had seen the accused coming down from upstairs or that the accused had threatened her. Her statement to the following:

“I did not tell anyone that Bala Prasanna took away the computer and threatened me. I did not tell this even to the Inspector of Police after going to the police station. I do not tell this even to PW 1….”

22. The next recovery relates to the ingots. For the aforesaid aspect, the evidence of PWs 17, 18 and 19 is relevant. Since the gold jewellery had been molten and was recovered in the shape of ingots, it would be very hazardous to come to the conclusion that in fact the gold jewellery belonged to the deceased. If the accused had killed the deceased and stolen the gold jewellery, there is no reason as to why he had also not taken earrings from the deceased. The fact that earrings were on the dead body is admitted by the prosecution.

23. The prosecution has strongly relied upon the facts that “M” dollar belonging to the deceased and a key chain with key of the room of the deceased were discovered from inside the toilet in the room which was previously occupied by the accused. For the aforesaid purpose, they have relied upon the evidence of PW 42 and the seizure witness PW 24. The accused had allegedly made earlier confessional statement before PW 40 on 26-4-2003 leading to discovery of several articles. The subsequent statement spoken by PW 42, the subsequent investigating officer, is alleged to have been made only in September 2003, after about five months.

24. So far as the first confessional statement made before PW 40 is concerned, admittedly the accused was under physical custody, at that time, whereas at the time of last confession stated to have been made before PW 42, the accused was on bail and he had been summoned by PW 42 for further examination and, therefore, technically in custody. If the accused had not made such a statement at such first instance, when he had confessed about other articles, it is not understood as to how after five months when he was on bail he would make such a statement. Such alleged confession made belatedly thus creates doubt regarding its authenticity or voluntariness. In this context, it is to be noted that CW 1 states that “M” dollar was taken from him by PW 42 for the purpose of facilitating investigation. Keeping in view the fact that CW 1 is a close relation of the deceased and obviously interested in punishing the real culprit, such a statement coming from CW 1 cannot be slightly brushed aside.

25. The fact that there had been a statement allegedly made by PW 1 leading to recovery of a parallel key from the dashboard of the car of PW 1, cannot be lost sight of. It is of course true that the prosecution has tried to exonerate PW 1 by adducing evidence through PWs 36 and 39 to the effect that immediately after recovery of the dead body, PW 40 had taken two such keys, thus contradicting the alleged confession of PW 1. However, the very suspicious role of PW 40, who apparently was in possession of at least two keys of the same lock creates suspicion regarding recovery of another key after five months.

26. Law is well settled that when the prosecution relies upon circumstantial evidence, all the links in the chain of circumstances must be complete and should be proved through cogent evidence.

27. When the judgment of the High Court is analysed in the background of what has been stated by this Court as regards circumstantial evidence, the inevitable conclusion is that the impugned judgment of the High Court does not suffer from any infirmity to warrant interference. The appeal is dismissed.