REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.185 OF 2005
Kusuma Ankama Rao ..Appellant
Versus
State of Andhra Pradesh ..Respondent
JUDGMENT
Dr. ARIJIT PASAYAT, J.
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
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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
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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
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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
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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
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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:
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“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
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(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
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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:
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“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:
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(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 possible
hypothesis 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).
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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, comes
into play where the time gap between the point
of time when the accused and the deceased13
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
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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
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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
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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.
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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
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measure it worked on the mind of the accused. If the
inducement, 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
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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
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the High Court. The appeal is without merit, deserves
dismissal which we direct.
………………………………….J.
(Dr. ARIJIT PASAYAT)
………………………………….J.
(P. SATHASIVAM)
New Delhi,
July 7, 2008
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