SUPREME COURT OF INDIA
P.B. Sawant and K. Ramaswamy, JJ.
Kishore Chand - Appellants
versus
The State of Himachal Pradesh -Respondent
Crl. Appeal No. 386 of 1978
Decided on 29-8-1990

IMPORTANT POINTS
1. In a murder case when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence the circumstances relied on must be fully established.
2. The extra judicial confession made by an accused to stranger, while he was in the custody of the police officer shall not be proved against the accused.
3. Before accusing an innocent person of the commission of a grave crime like the one punishable under Section 302 Indian Penal Code an honest sincere and dispassionate investigation has to be made and to feel sure that the person suspected of the crime alone are responsible to commit the offence.
4. 1t is high time that senior counsel practising in the court concerned volunteer to defend indigent accused as a part of their professional duty.

Headnote:(i) MURDER CASE - CIRCUMSTANTIAL EVIDENCE- The circumstances relied on must be fully established - The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused - If any of the circumstances proved in a case are consistent with the innocence of the accused, the accused is entitled to the benefit of the doubt - Assessment of evidence.

       Held: In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilty is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis. (para 4)

       Further held: In assessing the evidence to find these principles, it is necessary to distinguish between facts which may be called primary or basis facts on 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 in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt The court has to consider the evidence and decide whether the evidence proves a particular fact or not. Whether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem, the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are in consistent with the innocence of the accused and are consistent only with his guilt. There is a long distance between may be true and must be true. The prosecution has to travel all the way to establish fully all the chain of events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclusive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. In other words, there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent will the innocence of the accused and it must be such as to show that within all Sic* probability the act must have been done by the accused and the accused alone. (para 6)

       (ii) Indian Penal Code, 1860 – Section 302 and 201- Conviction for the offence under - Appeal against - No eye-witness – The circumstance relied on by the prosecution is that the deceased and the appellant were last seen together by P.W. 7 and P.W. 8 – No prior intimacy of the appellant and the deceased - They happened to meet per chance - P.W. 7, the liquor shop owner and P.W. 8 who had liquor with the appellant and the deceased are also absolute strangers to the deceased and the appellant- No identification parade conducted by the prosecution to identify the appellant by P.W. 7 or P.W.8 - It is not reasonably possible to accept the testimony of P.W.7 and P.W. 8 when they professed that they have seen the appellant and the deceased together consuming the liquor. (Para 7)

       (iii) EXTRA-JUDICIAL CONFESSION - Admissible in evidence provided it is free from suspicion and suggestion of its falsity - It will have to be proved like any other fact - Value of the evidence as to the confession depends upon the velocity of the witness to whom it is made and the Circumstances in which it came to be made and, the actual words used by the accused. (Para 7)

       (iv) Evidence Act, 1872 - Sections 25 & 26 - Extra Judicial- Confession – Made to the Village Pradhan while he is in the custody of the police - It shall not be proved against the accused unless it is made in the immediate presence of the Magistrate.

       Held: Section 26 provides that no confession made by any person while he is under custody of the police officer. unless it be made in the immediate presence of a magistrate, shall be proved as against such person. There fore, the confession made by an accused person to a police officer is irrelevant by operation of Section 25 and it shall be proved against the appellant. Likewise the confession made by the appellant while he is in the custody of the police shall not be proved against the appellant unless it is made in the immediate presence of the magistrate, by operation of Section 26 thereof. Admittedly the appellant did not make any confession in the presence of the magistrate. The question, therefore, is whether the appellant made the extra judicial confession while he was in the police custody. It is incredible to believe that the police officer, P.W. 27, after having got identified the appellant by P.W. 7 and P.W. 8 as the one last seen the deceased in his company would have left the appellant without taking hi~ into custody. It is obvious, that with a view to avoid the rigour of Section 25 and 26, P.W.27 created an artificial scenerio of his leaving for further investigation and kept the appellant in the custody of P.W. 10, the Pradhan to make an extra judicial confession. Nothing prevented P.W. 27 to take the appellant to a Judicial 'Magistrate and had his confession recorded as provided under section 164 of the Crl. P.C. which possesses great probative value and affords an unerring assurance to the court. It is too incredulous to believe that for mere asking to tell the truth the appellant made voluntarily confession to P.W. 10 and that too sitting in a hotel. The other person in whose presence it was stated to have been made was not examined to provide any corroboration to the testimony of P.W. 10. Therefore, it would be legitimate to conclude that the appellant was taken into the police custody and while the accused was in the custody, the extra judicial confession was obtained through P.W. 10 who accommodated the prosecution. Thereby we can safely reach an irresistible conclusion that the alleged extra judicial confession statement was made while the appellant was in the police custody. It is well settled law that Sections 25 and 26 shall be construed strictly. Therefore, by operation of Section 26 of the Evidence Act, the confession made by the appellant to P.W. 10 while he was in the custody of the police officer (P.W. 27) shall not be proved against the appellant. In this view it is unnecessary to go into the voluntary nature of the confession etc. (Para 8)

       (v) Evidence Act, 1872 - Section 27 Murder case - Statement said to have been made by the appellant leading to discovery of the consequential information, namely, saw blade - The alleged recoveries were long after the arrest of the appellant - The blood stains on all the articles were disintegrated -It was not possible to find whether it is human blood or not - This circumstance cannot be relied on to convict the appellant. (Para 9)

       (vi) Indian Penal Code, 1860 – Sections 302 and 201- Conviction under - Appeal against - No direct evidence - Prosecution has utterly failed to prove anyone of the three circumstances alleged against the appellant - Chain of circumstances was broken at every stage without connecting the accused to the commission of the alleged crime - Appellant is entitled to the benefit of doubt - Acquittal. (Para 11)

       (vii) INVESTIGATION-Constitution of India - Arts 14, 19 & 21 – Universal Declaration of Human Rights - Art 10 Personal Liberty - Its deprivation shall be only in accordance with law - Weaker the person accused of an offence, greater the caution and higher the responsibility of the law enforcement agencies - Before accusing a person under Section 302 I.P.C., an honest, sincere and dispassionate investigation has to be made - Indulging in free fabrication of the record is a deplorable conduct on the part of an investigating officer - Greater care and circumspection are needed by the investigating agency in this regard - It is the duty of the state of organise periodical refresher courses for the investigating officers to keep them abreast of the latest scientific development in the art of investigation. (Para 12)

       (viii) Constitution of India - Art 39A Universal Declaration of Human Rights- Art. 10 - Fundamental Rights to equal justice and free legal aid - Assigning an experienced defence counsel to an indigent accused is a facet of fair procedure - It is high time that senior counsel practising in the court concerned, volunteer to defend such indigent accused as a part of their professional duty. (Para 13)

       (ix) PRACTICE AND PROCEDURE - Indian Penal Code, 1860 - Sections 302 and 201 r/ws 34 - Appellants and two others have been charged for the offences under - A2 and A3 were acquitted of the charge under Section 302/34 - Omission to frame an independent charge under Section 302 does not vitiate the conviction and sentence under Section 302 of the Code if evidence on record proves the guilt. (Para 10)

       Result: Appeal allowed.