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Dr. Arijit Pasayat, J.-
Leave granted
1. Challenge in this appeal is to
the judgment of a Division Bench of the Andhra Pradesh High Court
upholding the appellant's conviction for offence punishable under
Section 302 of the Indian Penal Code, 1860 (in short the `IPC') for
committing murder of one Gottapu Adilakshmi (hereinafter referred to as
the `deceased') by strangulating her with a towel on 22.2.2001. Learned
VI Additional Sessions Judge (Fast Track Court), Machilipatnam had found
the accused guilty and convicted and sentenced him to imprisonment for
life and fine.
2. Prosecution case as unfolded
during trial is as follows:
Kusuma Ankama Rao (hereinafter referred to as `accused') was a resident
of Pedaveedhi of Gudivada Town. He was a fruit vendor. Sankara Rao
(PW-1) and Rama Swamy (PW-2) are the son and husband of the deceased
respectively. The deceased stayed with her family in the house of M.
Simhachalam (PW-3) in Padamata Veedhi at Gudivada. Accused was having
illegal intimacy with the deceased. On 22.2.2001 at about 6.30 p.m., the
accused met PW-1(son of the deceased) and asked him to get a quarter
bottle of liquor and a beedi packet and paid Rs.50/- for the purpose.
Accordingly, PW-1 brought the said items. Thereafter, the accused asked
the whereabouts of the deceased. PW-1 took the accused to Gopalakrishna
(A.C.) theatre, where the
2. deceased was working as a
labourer on that day. On their way to the theatre, they found the
deceased and some others coming in the opposite direction. At that point
of time, the accused talked with the deceased; and the accused, deceased
and PW-1 went to the by-pass road leading to Eluru and thereafter they
further went to the black gram field of one N. Narasimha Rao. At that
point of time the accused asked PW-1 not to follow them and to stop
there. Accordingly, PW-1 waited there for half an hour or so and as the
deceased and accused did not return, he returned to the hotel where he
was working. Thereafter, he went to the house late in the night. In the
morning when he found that her mother had not returned home, he stated
the above facts to his father. In the meanwhile, they heard the people
saying that there was a dead body in the field of N. Narsimha Rao. Then
PWs 1 and 2 went there and saw the dead body of the deceased and PW-2
asked PW-1 to give complaint to the police. Accordingly, PW-1 went to
Town Police, Gudivada and gave Ex.P-1 report. On the basis of the said
report, FIR was registered by PW-11. The investigating officer (PW-12)
on receipt of the FIR went to the
3. place of offence and conducted
Panchanama of scene of offence and thereafter held inquest over the dead
body of the deceased. He also examined the witnesses and seized the
towel and other material objects. In the meanwhile, the accused made an
extra judicial confession before PW-6, the village Administrative
Officer to the effect that he had committed murder of the deceased by
strangulation. Immediately, thereafter PW-6 recorded the statement of
the accused duly attested the same by PW-8, the village servant. He took
the accused to the Police Station along with the report. The C.I. of
police examined Village Administrative Officer. After completion of
investigation, charge sheet was filed before the learned Additional
Judicial First Class Magistrate, Gudivada, who registered the same as
P.R.C. No.30 of 2001. Since the offence punishable under Section 302 IPC
is exclusively triable by the Court of Sessions, he committed the same
to the Court of Session, Machilipatnam, who registered the case as
S.C.No.211 of 2001. Thereafter, the case was made over to the learned VI
Additional District and Sessions Judge, Machilipatnam for trial and
disposal in
4. accordance with law.
In order to establish its version, prosecution examined 12 witnesses and
marked as Exh. P-1 to P-14 documents and M.Os. 1 to 19 were also marked.
The trial Court after considering the evidence on record found the
accused guilty and sentenced him as afore-stated. The conviction was
challenged before the High Court. The stand before the High Court was
that the prosecution case was based on circumstantial evidence and the
circumstances highlighted do not establish the guilt of the accused. The
State on the other hand referred to the evidence of PWs 1 and 2 and the
extra judicial confession made before Village Administrative Officer
(PW-6) to the effect that accused and the deceased were last seen
together, and the evidence clearly established the guilt of the accused.
The High Court accepted the stand of the State and dismissed the appeal.
3. In support of the appeal, learned
counsel for the appellant submitted that the last seen concept is not
5. applicable to the present case.
The so called extra judicial confession was before a stranger. There is
no reason as to why the accused would make confession before a stranger.
Reliance is placed on a decision of this Court in State of Haryana v.
Ved Prakash (AIR 1994 SC 468) and Kailash Potlia v. State of
Andhra Pradesh (AIR 1996 SC 66).
4. Learned counsel for the
respondent-State on the other hand submitted that the three witnesses
i.e. PW 1 (son of the deceased) PWs 4 and 5 had seen the deceased and
the accused going together and, thereafter the dead body was recovered.
The Village Administrative Officer was not a stranger but he was
incharge of the village and was a person of authority in that sense.
5. 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
6. any other person. (See Hukam
Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State
of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR
1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224);
Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok 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 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.
6. We may also make a reference to a
decision of this Court in C. Chenga Reddy and Ors. v. State of A.P.
(1996) 10 SCC 193, wherein it has been observed thus:
7. "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....".
7. 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
8. (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.
8. In 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 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.
9. 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
9. 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, (5) if there be any reasonable doubt of the guilt of the accused,
he is entitled as of right to be acquitted".
10. There is no doubt that
conviction can be based solely on circumstantial evidence but it should
be tested by the touch- stone of law relating to circumstantial evidence
laid down by the this Court as far back as in 1952.
11. In Hanumant Govind Nargundkar
and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it
was observed thus:
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."
12. A reference may be made to a
later decision in Sharad Birdhichand Sarda v. State of Maharashtra,
(AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence,
it has been held that onus was on the prosecution to prove that the
chain is complete and the infirmity of 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:
11. (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
possiblehypothesis except the one to be proved; and
(5) there must be a chain of
evidence so complete 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.
13. These aspects were highlighted
in State of Rajasthan v.Rajaram (2003 (8) SCC 180), State of
Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261).12
14. So far as the last seen aspect
is concerned it is necessary to take note of two decisions of this
court. In State of U.P. v.Satish [2005 (3) SCC 114] it was noted
as follows:
"22. The last seen theory comes into play where the time-gap between the
point of time when the accused and the deceased were seen last alive and
when the deceased is found dead is so small that possibility of any
person other than the accused being the author of the crime becomes
impossible. It would be difficult in some cases to positively establish
that the deceased was last seen with the accused when there is a long
gap and possibility of other persons coming in between exists. In the
absence of any other positive evidence to conclude that the accused and
the deceased were last seen together, it would be hazardous to come to a
conclusion of guilt in those cases. In this case there is positive
evidence that the deceased and the accused were seen together by
witnesses PWs. 3 and 5, in addition to the evidence of PW-2."
15. In Ramreddy Rajesh Khanna
Reddy v. State of A.P. [2006 (10) SCC 172] it was noted as follows:
"27. The last-seen theory, furthermore, comesinto play where the time
gap between the point of time when the accused and the deceased
13. were last seen alive and the
deceased is found dead is so small that possibility of any person other
than the accused being the author of the crime becomes impossible. Even
in such a case the courts should look for some corroboration".(See also
Bodhraj v. State of J&K (2002(8) SCC 45).)"
16. A similar view was also taken in
Jaswant Gir v. State of Punjab [2005(12) SCC 438].
17. Confessions may be divided into
two classes i.e. judicial and extra-judicial. Judicial confessions are
those which are made before a Magistrate or a 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 that are 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
of Criminal
14. Procedure, 1973 (in short 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 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
15. 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 the 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
16. 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 in 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 the
highest credit, because it is presumed to flow from the highest sense of
guilt. It is not to be conceived that a man would be induced to make a
free and voluntary confession of guilt, so contrary to the feelings and
principles of human nature, if the facts confessed were not true.
Deliberate and voluntary confessions of guilt, if clearly proved, are
among the most effectual proofs in law. An involuntary confession is one
which is not the result of the free will of the maker of it. So where
the statement is made as a result of harassment and continuous
interrogation for several hours after the person is treated as an
offender and accused, such statement must be regarded as involuntary.
17. The inducement may take the form
of a promise or of a threat, and often the inducement involves both
promise and threat, a promise of forgiveness if disclosure is made and
threat of prosecution if it is not. (See: Woodroffe's Evidence, 9th Edn.,
p. 284.) A promise is always attached to the confession alternative
while a threat is always attached to the silence alternative; thus, in
one case the prisoner is measuring the net advantage of the promise,
minus the general undesirability of a false confession, as against the
present unsatisfactory situation; while in the other case he is
measuring the net advantages of the present satisfactory situation,
minus the general undesirability of the confession against the
threatened harm. It must be borne in mind that every inducement, threat
or promise does not vitiate a confession. Since the object of the rule
is to exclude only those confessions which are testimonially
untrustworthy, the inducement, threat or promise must be such as is
calculated to lead to an untrue confession. On the aforesaid analysis
the court is to determine the absence or presence of an inducement,
promise etc. or its sufficiency and how or in what
18 measure it worked on the mind of
the accused. If the nducement, promise or threat is 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, it is enough to exclude the confession.
The words "appear to him" in the last part of the section refer to the
mentality of the accused.
18. An extra-judicial confession, if
voluntary and true and made in a fit state of mind, can be relied upon
by the court. The confession will have to be proved like any other fact.
The value of the evidence as to confession, like any other evidence,
depends upon the veracity of the witness to whom it has been made. The
value of the evidence as to the confession depends on the reliability of
the witness who gives the evidence. It is not open to any court to start
with a presumption that extra- judicial confession is a weak type of
evidence. It would depend on the nature of the circumstances, the time
when the confession was made and the credibility of the witnesses who
19. speak to such a confession. Such
a confession can be relied upon and conviction can be founded thereon if
the evidence about the confession comes from the mouth of witnesses who
appear to be unbiased, not even remotely inimical to the accused, and in
respect of whom nothing is brought out which may tend to indicate that
he may have a motive of attributing an untruthful statement to the
accused, the words spoken to by the witness are clear, unambiguous and
unmistakably convey that the accused is the perpetrator of the crime and
nothing is omitted by the witness which may militate against it. 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 if it passes the test of
credibility. (See State of Rajasthan v. Raja Ram (2003 (8) SCC 180).
19. If the factual scenario is
considered it is seen that the prosecution clearly established the guilt
of the accused. There is no infirmity in the judgment of the trial Court
as affirmed by
20. the High Court. The appeal is
without merit, deserves dismissal which we direct.
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