Inspector of Police, Tamil Nadu v. Balaprasanna

Judgment

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1125 of 2008 From the final Judgment and order dated 23/12/2005 of the High Court of Judicature at Madras in Criminal Appeal No. 202 of 2005 R. Sundaravaradan, V.G. Pragasam, S.J. Aristotle and Prabu Ramasubramanian for the Appellant. A.TM. Rangaramanujam, V. Balaji and P.N. Ramalingam for the respondent. The Judgment of the Court was delivered by Dr. ARIJIT PASAYAT, J.

1Leave granted.

2Challenge in this appeal is to the order of a Division Bench of Madras High Court allowing the appeal filed by the respondent (hereinafter referred to as the 'accused'). The accused was convicted for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') and· sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- with default stipulation by Principal District Judge, Madurai. He was also convicted for offences punishable under 39 . ·Section 392 read with Section 397 IPC and sentence to undergo rigorous imprisonment for 10 years and to pay a fine.

3Background 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 (P.W.1). The Accused is also a Sri Lankan student studying in a different co.liege, 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 byP.W.1 on 24-4-2003 at about 9.30 A.M. It was indicated in C the First Information Report that on 24.4.2003 at 9.00A.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 win.:. dow he noticed that Mayurani was lying in a pool of blood with o her face covered with a bag. On the basis of the aforesaid F.l.R., investigation was taken up initially by P.W.40.

Subsequently Ori the basis of the order of the High Court, such investigation was completed by P.W.42. The accused is stated to have been arrested on suspicion on 26.4.2003. On the basis of the statement of the accused, prosecution discovered many materials including a knife and a log allegedly used for killing. Initially, P.W.40 suspected the role of P.W.1, his wife P.W.2, P.W.3, from whose house certain incriminating material were recovered allegedly on the basis of statement of the accused as well as P.W.4, who was working as a cleaner in the vehicle of P.W.1. Subsequently, however, P.W.42, who took over investigation from P.W.40 filed charge-sheet only against the respondent on the footing that P.Ws. 1 to 4 had no role to play in the G crime.

4The prosecution relied upon only circumstantial evidence, namely, confessional statements of the accused lead ... ing to recovery of various incriminating materials. Ex.P-6is the 40 s~aternent lead!ng t,o r~covery of Travel .bags {M.Os. 2 & 3), knife c~.05), wooden log (M.0.28·). rubb~r gfoves (rvi.0.29· series) cotton rope with human hair (M.N.0.30 series),. two sponges soaked with blood (M.0.31 series), bloodstained blue cl91ourjeanpant(M.0.32), bl.oodstained white banian (M.0.33), c'olour banial) (M .. 0,,34), bloodstained 'grey colour pant (M.0.35), bloqdstained pillow (M.0.36), piastre bucket (M.0.37) from the h_ouse.of.P.W'.3. Ex".P-8 is th_e statement leading to recovery of computer and itS accessori~~ (M.Os. 6 to 17) from the house of P.'f:-l 15, .a Cl~ssr:nate of the accused. Ex.P-10 is the statem.ent relafing.fo.)ew'elleries, ultimately leading to.recovery of gold in.,. gots.(rvi.Q.1a"series).from the house of P.W ..

19 on the basis of ot.her connecting statement~ of P.W.17 andP.W.18. These three statemeri'fs., Exs. P.-6, p·~a and P'-1 o dated 26-4-2003, were m~~fo bef~ie P,VV.40 in.the presence of P.W.22 and C.W.1.. The other: 'confessional stateme.nt Ex.P-12 dated 22-9.-2003 made b.efor~·P.W.42 ~nd_Subbiah ~nd P.w.24; led to n~covery of.''.M" dqffar.(M.'Q.3~f and key chain with key ch~in in (M.0.39) fr9rn the .toilet in the room of the qCCused. The prosecution has.also relied upon the alleged motive to the effect that the. accused urgently wanted rnoney with a view to increase his marks in .. Mathematics :and, .. therefore, the accused had-·stolen articles belonging to ·the deceased. · 5. The trial court found the resp~ndeni guilty and recorded conviction and imposed sentence as aforestated. The trial court found ttiat 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 ~uch articles in the mark~t. At the time of occurrence, only the a:ccused, 41 deceased and PW 9 were available in the premises A and there was no other person. Statement of the accused leading to recovery of incriminating materials such as knife, rope, clothes, wooden log and other valuable articles such as 8 computer, gold ornaments, "M" Dollar and the key chain with key belonging to the deceased.

6The 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 C that the High Court failed to.notice that the circumstances highlighted clearly establis.h the chain of circumstances which established the prosecution version and the High Court was not justified in directing acquittal. .

7Learned counsel for the respondent on the other hand D supported the judgment of the High Court. ·

8The conviction based on circumstantial evidence has been highlighted by this Court in various orders of this Cqurt.

9It 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 (Al R 1956 SC 316); Earabhadrappa v. State of Karnataka (Al R 1983 SC 446); State of UP v. Sukhbasi and Ors. (AIR 1985 SC 1224); Ba/winder Singh v. State of Punjab (AIR 1987 SC 350); ~shok 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 H 42 suPqEME COURT REPORTS, 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. .

10We may also make a reference to a decision of this Court in G Chenga Reddy and Ors. v. State of A.P (1996) 10 sec 1"93, 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 .... ".· . _11. 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 43 only be consistent with the guilt of the accused but A should be inconsistent with his innocence."

12In 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 8 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. ~ir 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 E 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".

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

15In Hanumant Govind Nargundkar and Anr. V State G of Madhya Pradesh, (AIR 1952 SC 343), wherein it was ob- --1.. served thus: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances fron:i which 44 SUPREME. COURT REPORTS ' : . 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 acc1.Jsed. Again, the circumstances should be of. a conclusive .nature and tendency and they should . be .. such as to _exclud~ 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 . re~sonable ·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."

16A reference may be made to a later decision .in Sharad Birdti°iC,hf!m;l Sarda v. St9te of MaharashtraJ. (AIR 1984 SC 162.2~. Therein, ~hile dealing with ci~cumstantial evidence,. it has been held that onus was on the prosecution to prove that the chain is con;iplete and the infirm,ity of lacuna inprosecution cannot be cured by false defence or plea. The co.nditions precedent ·in the words of this Court, before conviction could be based. qn circum?tantial evidence, rnust. be f_ully · e_stablished. 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 exceptthat 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· INSPECTOR OF POLICE, TAMIL NADU v. · 45 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.

17These aspectswere highlighted in State of Rajasthan 8 v. Rajaram (2003(8) SCC 180), State of Haryana v. · Jcigbir Singh &Anr. (2003(11) sec 261).

18The ,main circumstances relied upon by the prosecution relates to the statements of the-accused leading to discovery of materials facts, admissible under Section 27 of the Indian Evidence Act, 1872 (in short the 'Evidence Act').

19Law is well settled t.hat the prosecution while relying upon the confessional statement leading to discovery of articles under Section 27 of the Evidence Act, has to prove through co"gent evidence that the statement has been made voluntarily D 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 Pu/ukuri Kotayya v. Emperor (AIR 1947 PC 67). It is worthwhile to extract such quoted obser\tation: "It is fallacious to treat the 'fact discovered' within the section as equivalent to the object ·pro-duced; 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· 1s not related to his discovery in the setting in which it is discovered. Information-supplied by a person in G. custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of the knife; knives were discovered m·any 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 46 fact discovered is very relevant. But if to the statement the words be added 'with which stabbed A', these words are inadmissible since they do not related to the discovery of the knife in the house of the informant (p.77)".

20At 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, butalso the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kottaya's case (supra).

21The 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. 47 · ( 7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is Inadmissible.

22As observed in Pulukuri Kottaya's case (supra) it can seldom happen that information leading to the discovery of a 8 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).

23The above position was highlighted in Anter Singh v. c State of Rajasthan (AIR 2004 SC 26651.

24In Rammi alias Rameshwar v. State of Madhya Pradesh (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 E evidence the court has to see whether it was voluntarily stated by the accused."

25Signifitantly, 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' F by PW 22 and CW 1. It has been accepted by the prosecution that great efforts were made by PW 40 to falsely implicate to PWs 1 to 4 and for that purpose a departmental proceeding was initiated. Even according to the statement of the subse: quent investigating officer (PW 42), several blank papers with G the signature of PW 22 and CW 1 had been by PW 40 and such documents had been used to create false records to im~· plicate PWs 1to4. It is to be noted that PW 2 himself was o·ne of the su~pected person at the initial stage df investigation.

26That apart, materials on record such as the statement H 49 there is nothing to indicate that in fact the bloodstained clothes A and rope had tallied with the blood grouping of the deceased. The knife did not contain any bloodstain. Therefore, the aspect relating to recovery of articles from the house of P.W.3 and his mother cannot be considered as a link to complete the chain of circumstantial evidence.

28The next recovery relates to recovery of computer and accessories. Apart from the fact thatthere is niggling doubt about the so called confession, in view of statement under Section 164 of the Code of P.W.22 and the statement of C.W.1, a further doubt is raised regarding such aspect in view of evidence of C.W.1 to C the effect that he had seen such computer in the rooryi of the deceased when they had gone to the room after the offence was reported. The fact that C.W.1 is a close relation of the deceased adds weight to his evidence rather than taking it away. E_ven accepting that the computer had been given to P.W.15 by the accused, such circumstance by itself does not unerringly points to-~ wards the guilt of the accused either in respect of offence of murder or even robbery. It is quite possible that such articles might hc;ive been borrowed by the accused from the deceased and not necessarily stolen by the accu.sed from the deceased after killing her.

The fact that P.W.9 had not initially stated anything before P.W.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 5 months cannot be lost sight of. As a matter of fact, P.W.9 who was examined on the very date when police started investi-. gation did not inform the police that she had see~ the accused coming down from upstairs or that the accused had threatened her. Her statement to the following: "I did not tell anyone that Balaprasanna took away the computer and threatenad me. I did not tell this even to the G Inspector of Police after going to the police station. I do not tell this even to P.W.1 ... ".

29The next recovery relates to the ingots. For the aforesaid aspect, the evidence of P.'Ns. 17, 18 and 19 is relevant. H 50 SUPREME GOURT REPORTS A Since the golden jewellery had been molten and were recovered in the shape of ingots, it would be very hazardous to come to the conclusion that in fact the gold.en jewellery belonged to the deceased. If the accused had killed the deceased and stolen those golden jewellery, there is no reason as to why he had s. also not taken ear rings from the deceased. The fact that ear rings were_ on. the dead body is .admitteq _by the prosecution.

30The prosecution has .strongly relied upon the fact that "M" Dollar belonging to· the deceased and .a chain with key of the room ofthe deceased were discovered from inside the toi-'. let in the··roomwhich was previously occupied by the accused. For the aforesaid·purpose, they have relied upon the evidence. of P.W.42 and· the'·seizure witness P:W.24. The accused had allegedly made·earlier confessional statement before P.W.40 on 26'·4-2003 leadingto discovery of several articles.The sub-' sequerit statement spoken to by P.W.42, the subsequent lnves-' tigatihg Officer, is alleged to have been made only in .septem-. ber; 2003, after about five months.

So far as the first confession I statement made before P.VV.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 I P.W.42, the accused was on bail and he had beeA summoned by P~W.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 5 months when he was on baii he would make.such a statement. Such alleged confession made. ,I..-. belatedly tf.rus' creates doubt: regarding its authenticity ·or voluntariness. In this context, i1 is·to be noted thatc:w. 1 states that "M'.'. Qollarwas taken from him by P.W.42 for the purpose of facil_i~ating investigation.

Keeping in vie~ the fact that 9.vv.1 is a cl6s~ relation of the. deceased and obviously interested in punishing the real culprit, such a statemen.t coming from C.\N.1 cannot be slightly brushed aside.

31T~e fact that there had been 1;1. statement ~liege~ly made by P.W.-1 leading to recovery of a parallel key from the 51 dash board of the car of P.W.1, cannot be lost sight of. It is of A course true that the prosecution has tried to exonerate P.W.1 by adducing _evidence through P.Ws. 36 and 39 to the effect that immediately after recovery of the dead body, P.W.40 had taken two such keys, thus contradicting the alleged confession of P.W.1. However, the very suspicious role of P.W.40, who appare.ntly was in possession of at least two keys of the same lock creates suspicion regarding recovery of another key after 5 months.

32Law is well settled that when the prosecution relies upon circumstantial ~vidence, all the links in the chain of circumstances must be complete and should be proved through cogent evidence.

33When the judgment of the High Court is analysed in the background of what has been stated by this Court as reo gards 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. D.G. Appeal dismissed.