2003 Supreme(SC) 749

2003(6) Supreme 11
SUPREME COURT OF INDIA
(From Rajasthan High Court)
Doraiswamy Raju & Arijit Pasayat, JJ.
State of Rajasthan -Appellant
versus
Rajaram -Respondent
Criminal Appeal Nos. 815-816 of 1996
Decided on 13-8-2003
Counsel for the Parties :
For the Appellant : Alok Bachawat, Ms. Bharati Upadhyaya, Advocate for V.N. Raghupathy, Mahinder Singh Dahiya, Advocate (NP)/Advocates.
For the Respondent : Doonger Singh, Sushil Kr. Jain, H.D. Thanvi and Anil Vyas, Advocates.

IMPORTANT POINTS
1. 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.
2. 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 Supreme Court in Hanumant Govind case in 1952.

Headnote:(i) Criminal Procedure Code, 1973 -Section 378-Indian Penal Code, 1860-Section 302-Appeal against acquittal-No embargo on appellate Court reviewing evidence upon which an order of acquittal is based-However, if two views are possible on evidence adduced in the case, one pointing to guilt of accused and other to his innocence, view which is favourable to the accused should be adopted-Appellate Court to interfere when there are compelling and substantial reasons for doing so.

       Held : 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. 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. (Para 7)

       (ii) Indian Penal Code, 1860-Section 302-Murder-Circumstantial evidence-Appreciation of evidence-Offence can be proved by circumstantial evidence also-However, inference of guilt can be justified only when all incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person.

       Held : 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. Paras 8 & 9)

       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. (Para 9)

       (iii) Evidence Act, 1872-Section 24-Confessions, judicial and extra-judicial-Admissibility of extra-judicial confessions-An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court-Test of credibility.

       Held : 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. (Para 18)

       (iv) Indian Penal Code, 1860-Section 302-Murder of 5 persons-Extra- judicial confession allegedly made to PW4-PW4 was not in good terms with the accused-PW3 was a close relative of PW4 and a person of doubtful antecedents being a history sheeter-Totality of circumstances cast an indelible shadow of doubt on his evidence-Non-acceptability of evidence of extra judicial confession-Presence of PW4 at time of recovery found doubtful as he has been found an unreliable witness-Existence of blood stains on clothes of accused not such from which it can be found that accused was perpetrator of crime-Blood group of blood found on clothes could not be determined-Neither blood group of deceased nor that of the accused was determined-High Court held that possibility of blood being that of the accused cannot be ruled out-Judgment of acquittal as recorded by the High Court not to be interfered with. (Para 21)