2010 Supreme(SC) 47

2010 (1) Supreme 421
SUPREME COURT OF INDIA
J.M. Panchal and T.S. Thakur, JJ.
Aftab Ahmad Anasari — Appellant
Versus
State of Uttaranchal — Respondent
Criminal Appeal No. 836 of 2005
Decided on : 12-01-10

IMPORTANT POINTS
1. Where circumstances proved are put to the accused through his examination under Section 313 of the Code and the accused merely denies the same, then such denial would be an additional link in the chain of circumstances to bring home the charge against the accused.
2. Though extra judicialconfession is considered to be a weak piece of evidence by the courts, there is neither any rule of law nor of prudence that the evidence furnishing extra judicial confession cannot be relied upon unless corroborated by some other credible evidence.
3. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established.

Headnote:Indian Penal Code,1860- Sections 302, 376 and 201- Prosecution of appellant and one M for commission of rape and murder of a minor girl aged five years and for causing disappearance of evidence of those offences- Conviction by Trial Court-Appeal thereagainst-Partly allowed by High Court by acquitting accused M but affirming conviction of appellant under Sections 302, 376 and 201 IPC. -The death penalty awarded to the appellant for commission of offence punishable under Section 302 IPC was modified and appellant was sentenced to R.I. for life -Appeal-Held prosecution had proved satisfactorily and beyond shadow of doubt that deceased went missing in the evening of 5.02. 98 when she was playing near her house- Her naked dead body was found at about 6 a.m. on 8.02. 98 lying on public way - Deceased was subjected to rape and died a homicidal death-Appellant was seen fleeing away from near place where the dead body of the deceased was lying at about 4.30 a.m. on 8.02.98- Blood stained frock and blood stained underwear of deceased concealed in the house of sister of appellant, were recovered pursuant to voluntary disclosure statement made by appellant while in police custody- Underwear of appellant seized during the course of investigation was found to be stained with blood and semen-Appellant made extra judicial confession before PW5- The cumulative effect of said facts taken together was conclusive in establishing the guilt of appellant- The chain of circumstantial evidence was complete and did not leave any reasonable ground for conclusion consistent with the innocence of the appellant- Apart from that where circumstances proved are put to the accused through his examination under Section 313 of the Code and the accused merely denies the same, then such denial would be an additional link in the chain of circumstances to bring home the charge against the accused-Instantly incriminating circumstances proved were put to appellant while recording his statement under Section 313 of the Code of Criminal Procedure- In his further statement, recorded under Section 313, appellant had merely denied the same-Hence, such denial on the part of the appellant and failure to explain the circumstances proved could be treated as an additional link in the chain of circumstances to bring home the charge against the appellant- The circumstances proved established the guilt of the appellant beyond reasonable doubt-No substance found in appeal and same held liable to be dismissed-Appeal dismissed. (Paras 16 to 18)

        Circumstantial Evidence-In dealing with circumstantial evidence, there is always a danger that conjecture or suspicion lingering on mind may take place of proof- Suspicion howsoever strong cannot be allowed to take place of proof and, therefore, the Court has to judge watchfully and ensure that the conjectures and suspicions do not take place of legal proof- However, it is no derogation of evidence to say that it is circumstantial-Human agency may be faulty in expressing picturization of actual incident but the circumstances cannot fail-In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established- Each fact must be proved individually and only thereafter the Court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt- If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/themselves, is/are not decisive- The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved- But this does not mean that before the prosecution case succeeds in case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused,howsoever extravagant and fanciful it might be-There must be a chain of evidence so far complete as not to leave any reasonable ground for 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 (Para 4)

        Extra judicial confession -Evidentiary value of- Though extra judicial confession is considered to be a weak piece of evidence by the courts, there is neither any rule of law nor of prudence that the evidence furnishing extra judicial confession cannot be relied upon unless corroborated by some other credible evidence- The evidence relating to extra judicial confession can be acted upon if the evidence about extra judicial confession comes from the mouth of a witness who appears to be unbiased and in respect of whom even remotely nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused- If the word spoken by the witness are clear,unambiguous and unmistakable one showing that theaccused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then 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- In such a situation, to go in search of corroboration itself tends to cause a shadow of doubt over the evidence and if the evidence of extra judicial confession is reliable, trustworthy and beyond reproaching, the same can be relied upon and a conviction can be founded thereon- Instantly evidence relating to extra judicial confession inspired confidence of Court- On this point, there was concurrent finding by courts below -No case made out by appellant to interfere with the said finding in present appeal AIR 1985 SC 48, relied (Para15)

       Facts of the Case :

        Appellant and one M was prosecuted herein in the instant case for commission of rape and murder of a minor girl aged five years and for causing disappearance of evidence of those offences. Trial Court convicted accused persons for said offences. Appeal thereagainst was partly allowed by High Court by acquitting accused M but affirming conviction of appellant under Sections 302, 376 and 201 IPC. The death penalty awarded to the appellant for commission of offence punishable under Section 302 IPC was modified and appellant was sentenced to R.I. for life.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        Held prosecution had proved satisfactorily and beyond shadow of doubt that deceased went missing in the evening of 5.02. 98 when she was playing near her house. Her naked dead body was found at about 6 a.m. on 8.02. 98 lying on public way .Deceased was subjected to rape and died a homicidal death. Appellant was seen fleeing away from near place where the dead body of the deceased was lying at about 4.30 a.m. on 8.02.98. Blood stained frock and blood stained underwear of deceased concealed in the house of sister of appellant, were recovered pursuant to voluntary disclosure statement made by appellant while in police custody.Underwear of appellant was seized during the course of investigation was found to be stained with blood and semen. Appellant made extra judicial confession before PW5.The cumulative effect of said facts taken together was conclusive in establishing the guilt of appellant. The chain of circumstantial evidence was complete and did not leave any reasonable ground for conclusion consistent with the innocence of the appellant. The chain of circumstances was such as to show that within all human probability the rape and murder of the deceased were committed by appellant and none else and he had also caused disappearance of evidence of those offences. Apart from that where circumstances proved are put to the accused through his examination under Section 313 of the Code and the accused merely denies the same, then such denial would be an additional link in the chain of circumstances to bring home the charge against the accused-Instantly incriminating circumstances proved were put to appellant while recording his statement under Section 313 of the Code of Criminal Procedure. In his further statement, recorded under Section 313, appellant had merely denied the same.Hence, such denial on the part of the appellant and failure to explain the circumstances proved could be treated as an additional link in the chain of circumstances to bring home the charge against the appellant. The circumstances proved established the guilt of the appellant beyond reasonable doubt. No substance was found in appeal and same was held liable to be dismissed. Appeal dismissed.

       Result- Appeal dismissed.