MUNIKRISHNA @ KRISHNA ETC. versus STATE BY ULSOOR PS on 30 September 2022

[2022] 13 S.C.R. 415

MUNIKRISHNA @ KRISHNA ETC.

v.

STATE BY ULSOOR PS

(Criminal Appeal Nos. 1597-1600 of 2022)

SEPTEMBER 30, 2022

[UDAY UMESH LALIT, CJI, S. RAVINDRA BHAT ANDSUDHANSHU DHULIA, JJ.]

Penal Code, 1860 – ss.302, 34 – Constitution of India – Article20(3) – Code of Criminal Procedure, 1973 – s.161 – Evidence Act– ss.25, 27 – Murder of old aged person – Circumstantial Evidence– Appellants were convicted u/s.302 r/w s.34 and sentenced to lifeimprisonment – Order of conviction and sentence upheld by HighCourt – On appeal, held: In a case of circumstantial evidence, theentire chain of evidence must be complete and the conclusionsarrived after examining the chain of evidence must point towardsthe culpability of the accused and to no other conclusion – However,in the present case this is clearly missing from the case of theprosecution – Entire case of the prosecution is built upon theconfessional/voluntary statements made by the accused personsbefore the police and the recovery of the alleged weapon of murderrecovered at the pointing out of the accused and the recovery ofalleged stolen gold material from a jewelry shop, again on pointingout of the accused – Under Article 20(3) of the Constitution, anaccused cannot be compelled to be a witness against himself –Further, u/s.25, Evidence Act , a confessional statement given byan accused before a Police officer is inadmissible as evidence –Both the Trial Court and the Appellate Court wrongly placed relianceon the voluntary statements of the accused and their videographystatements – Orders passed by Trial Court and High Court set aside- Appellants be released from jail, unless wanted in some other crime.

Criminal Law – Evidence – Circumstantial Evidence – Dutyof Court – Held: In a case of circumstantial evidence, the Courthas to scrutinize each and every circumstantial possibility, which isplaced before it in the form of an evidence and the evidence mustpoint towards only one conclusion, which is the guilt of the accused– A very heavy duty is cast upon the prosecution to prove its casebeyond reasonable doubt.

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416SUPREME COURT REPORTS

AAllowing the appeals, the Court

HELD : 1.1 There is no direct evidence in the case. Thereis no forensic or scientific evidence which links any of the presentappellants to the crime. The so-called discovery of the weapon ofcrime and the discovery of stolen gold material is also severelyBflawed. It is thus in sum and substance entirely a case ofcircumstantial evidence. It is a case of circumstantial evidenceand in a case of circumstantial evidence, the entire chain ofevidence must be complete and the conclusions which is arrivedafter examining the chain of evidence must point towards theCculpability of the accused and to no other conclusion. This isclearly missing from the case of the prosecution. The entire caseof the prosecution is based on the confessional statements orvoluntary statements given by accused Nos. 1 to5 (all the presentappellants) while they were in police custody. Statement given by Dan accused to police under Section 161 of CrPC is not admissibleas evidence. The evidence discovered under section 27 of IndianEvidence Act, 1872, i.e., the recovery of stolen items and therecovery of the weapon are also very doubtful. In a case ofcircumstantial evidence, the Court has to scrutinize each andevery circumstantial possibility, which is placed before it in theEform of an evidence and the evidence must point towards onlyone conclusion, which is the guilt of the accused. In other words,a very heavy duty is cast upon the prosecution to prove its case,beyond reasonable doubt. [Paras 10-12][425-B-G]

FHanumant Govind Nargundkar & Anr. v. State ofMadhya Pradesh AIR 1952 SC 343 : [1952] SCR 1091;Musheer Khan @ Badshah Khan & Anr. v. State ofMadhya Pradesh (2010) 2 SCC 748 : [2010] 2 SCR119 – relied on.

GTufail (Alias) Simmi v. State of Uttar Pradesh (1969) 3SCC 198; Ram Gopal v. State of Maharashtra (1972) 4SCC 625; Sharad Birdhichand Sarda v. State ofMaharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88 –referred to.

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1.2 In the case at hand the entire case of the prosecution isbuilt upon the confessional/voluntary statements made by theaccused persons before the police and the recovery of the allegedweapon of murder recovered at the pointing out of the accusedand the recovery of alleged stolen gold material from a jewelryshop, again, on pointing out of the accused. As per the police, allthe accused were arrested from a school building on 31.01.2001and formally arrested on 01.02.2001. They confessed to as manyas 24 crimes committed by them. Their confessions of how theyplanned and executed the murders has been captured on a video,which was also exhibited before the court. The Court has takenthis evidence of voluntary statements made by the accused andhence admitted it as evidence. This was done both by the SessionsCourt as well as the High Court. The High Court affirmed thefinding of the Sessions Court and the admissibility of the voluntarystatement of the accused and the videography placed before theCourt. Both the Trial Court and the Appellate Court wentcompletely wrong in placing reliance on the voluntary statementsof the accused and their videography statements. Under Article20(3) of the Constitution of India, an accused cannot be compelledto be a witness against himself. Again, under Section 25 of theIndian Evidence Act, 1872; a confessional statement given by anaccused before a Police officer is inadmissible as evidence. Asfar as the recovery of gold ingot is concerned, PW-1, i.e., theson-in-law and the complainant has said in his evidence beforethe Court that he does not recognize the ingot and it does notbelong to his father-in-law. Therefore, the gold which has beenrecovered has not been identified as the one which was stolenfrom the house of the deceased. The recovery of knife is alsodoubtful. Firstly, Venkatesh who had led the discovery hadmentioned about the knife and its disposal on 01.02.2001 whenhe was arrested. The recovery, however was made on 15.05.2001i.e., four and a half months later. Why such a belated recoverywas made has not been explained. Secondly, the independentwitness to this recovery PW-10 Murugan, had also turned hostileduring cross examination as he said that he does not recognizeVenkatesh (accused) on whose pointing out the alleged recovery AB

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Awas made. So much for the recovery of the murder weapon. [Para13][428-G-H; 429-A-B; 430-D; 431-C; 432-A-D]

Shri N. Sri Rama Reddy, Etc. v. Shri V.V. Giri AIR 1971SC 1162 : [1971] 1 SCR 399 – held inapplicable.

1.3 Some of the accused who were before this Court wereBalso facing another trial of similar nature in which they wereconvicted on 17.09.2010 and sentenced to death. Thereafter inAppeal their conviction was upheld, but the sentence wasconverted to life imprisonment by the High Court. They finallycame before this Court in Appeal. The course of investigationCand the appreciation of evidence by the Trial Court and theAppellate Court had taken a similar course as they have in thepresent case. While hearing their Criminal Appeal (Nos. 1476-1477 of 2018) this Court made certain observations, which areequally relevant for the present case as well. This Court in itsorder dated 19.04.2022 has allowed the above appeal and has setDaside the order of the Sessions Judge as well as of the High Courtwhich had placed its reliance almost completely on the statementmade by the accused before the Police under Section 161 of CrPC.This is exactly what has been done in the present case as welland consequently this too must meet the same fate. Indeed, itEwas also the case of the prosecution that the appellants belong toa gang which commits crime of this nature and that the modusoperandi is by and large the same in all cases. It was alleged thatthe appellants are involved in as many as 20-25 such cases. Butwhat was given before the Court was a chart giving descriptionof offences, numbers and Sections under which such offences hadFbeen allegedly committed. No documents in the nature ofchargesheet or any other proof was submitted. Therefore, thisfactor cannot be taken into account. Ordinarily, this Court doesnot interfere with concurrent findings of facts as they are in thepresent case. But, then in the present case it has becomeGnecessary to interfere with the findings for the reasons that boththe High Court as well as the Sessions Court have ignored thewell-established principles of criminal jurisprudences and haverelied upon facts and evidences which are clearly inadmissible ina court of law. The crime indeed was ghastly, to say the least. Yet, H

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linking the crime to the present appellants is an exercise whichwas to be undertaken in the court of law under establishedprinciples of law. The appeals are allowed, the order of theSessions Judge dated 19.03.2003 and the High Court dated31.08.2010 are hereby set aside, the appellants shall be releasedfrom jail, unless they are wanted in some other crime. [Paras 14-17][432-D-F; 435-A-E; 436-A]

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Venkatesh @ Chandra v. The State of Karnataka 2022SCC OnLine SC 765 – referred to.

Case Law Reference

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CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 1597-1600 of 2022.

From the Judgment and Order dated 31.08.2010 of the High Courtof Karnataka at Bangalore in Crl.A.Nos. 1048, 1049, 1068 and 1069 of2003.

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Lakshmeesh S. Kamath, Kaustubh Shukla, Ms. Samriti Ahuja,Ms. Nancy Shameem, Advs. for the Appellants.

Nikhil Goel, AAG, V. N. Raghupathy, Adv. for the Respondent.

The Judgment of the Court was delivered by F

SUDHANSHU DHULIA, J.

The appellants before us have challenged the judgment and orderdated 31.8.2010 passed by the High Court of Karnataka in a CriminalAppeal which has upheld the order of conviction and sentence passedby the Trial Court against the appellants which convicted the appellantsunder Section 302 read with Section 34 IPC, and has sentenced them forlife imprisonment. We had heard Shri Lakshmeesh S. Kamath, learnedcounsel for the appellant and Shri Nikhil Goel, learned AdditionalAdvocate General for the State at length on 24.08.2022 and grantedleave in the case, which was then reserved for judgment.

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A2. An FIR was lodged on 12.10.2000 at 1:15 PM mid night,whichwas the intervening night between 11[th] October and 12[th] October, 2000by the son-in-law of the deceased, S. Ramakrishnan. As per the FIR, hisfather-in-law, who was seventy-two years of age, and was living alonein house No.19/1 Haudin Road, Ulsoor, was murdered by some unknownpersons. The deceased last spoke to his daughter (wife of the informant),Bat about 6:30 PM that evening. Informant then says that his wife and himleft their house in the evening that day (11.10.2000) to attend a dinnerengagement. They returned home at about 11:15 PM. On their returnthey received a call from a cousin Dr. B. Anarth Narayan, of the IndianInstitute of Sciences. Dr. Narayan informed him that he had received aCtelephone call at about 10.00 PM, from one Sundar who is a neighbour ofhis father-in-law. Sundar had informed that the gates of the house of hisfather-in-law were open and lights were also on, which seemed unusualat that hour in the night. On this information, the informant and his wiferushed to the house of his father-in-law. He was apprehending that his father-in- law may have collapsed, since he had a history of heart disease.DWhen they reached the house at around 11.30 PM, they immediatelyhad an impression as if something was burning in the kitchen. Thisdrew them to the kitchen, where they found the dead body of S.Ramakrishnan. They also noticed that the cupboards of the living roomwere open and the purse of her father was missing where he normallyEkept approximately Rs.3000/-. They immediately informed the Policeand the FIR was lodged and Criminal Case No.600 of 2000 was registeredfor the offence punishable under Section 302 at Police Station, Ulsoor,Bengaluru and investigation commenced.

3. Meanwhile, Inquest had started at about 07:00 AM in the morning Fof 12.10.2000, and it is completed at 09:30 AM that day. The inquestreport states that a male person about 72 years old by the name of S.Ramakrishnan s/o Subbaraya Ayyer, found dead at No. 19/1, HaudinRoad, Ulsoor, Bengaluru on the day of 12.10.2000.

Then it records: -G“The dead body is lying in blood pool in kitchen at Door No. 19/1,Haudin Road, Ulsoor, facing the sky. Head facing West and legstowards East. Eyes are open. A 4” long bleeding injury is found indeceased’s neck; it is found to be cut with a sharp weapon. Boththe hands are stretched on the body. Cut injury caused in neck isHfound to be caused by some antisocial elements. Deceased is wearing 1) A cross-belt, 2) White full arm banyan, 3) Whiteunderwear, 4) White dhothi. All clothes are full of blood.

The dead body is found in kitchen at door No. 19/1, Haudin Road,Ulsoor, the main door of the house is facing North, ‘kitchen dooris to the West, on entering the kitchen, the dead body is lying onthe floor facing the sky with head towards West and legs towardsEast. Not found in water. Not in well.

On 12-10-2000 at 9.30 AM, Sri. NS. Ramachandrappa, PoliceInspector of Ulsoor Police Station, in order to know the actualcause for deceased’s death, sent the dead body to Bowring HospitalDoctor through Sri. Giriyaiah PC-2539.

Sri. N.S. Ramachandra, P.I. has ordered PC 2539 to handoverthe dead body to deceased’s blood relatives after postmortem, toperform obsequies.

On 11-10-2000. Some culprits have murdered the diseased Sri. S.Rakakrishnan, 72 years in the kitchen of his residence in between6.30 PM and 11.30 PM and escaped from there by stealing aroundRs.3000/- from the cupboard, by cutting his neck with some sharpweapon. However, we the Panchas opine that the dead body shouldbe sent to postmortem to find out the actual cause of deceased’sdeath.”

4. A post-mortem was conducted on 12.10.2000 between 10:30-11:30 AM. The post-mortem report indicates that there were seven antemortem injuries which are as follows:

“1. Horizontally placed Incised wound present over front ofneck on the midline situated 8 cm below middle of Chin and 4cm above level of suprasternal notch measuring 13 cm X 5cm X cervical vertebrae deep, underneath muscles of frontand sides of neck, Jugular veins on both sides, carotid arterieson both sides, trachea and oesophagus cut completely andthe body of 5[th] Cervical Vertebrae cut superficially, bloodextravasated around, margins are clean cut.

2. Obliquely placed incised wound over left side frontal regionsituated 1 cm above inner end of left eye brow measuring 4cm X 1 cm X bone deep.

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A3. Incised wound over right side of neck situated 6 cm belowright ear lobule measuring 2.5 cm X 1 cm X muscle deep.

4. Incised wound present 1 cm below injury No.3 measuring2 cm X 1 cm X muscle deep.

5. Superficial incised wound over left side of neck situated 4Bcm below left ear lobule measuring 4cm X 0.5 cm X skin deep.

6. Superficial incised wound over front and upper part. ofright side chest over right sterno clavicular joint measuring4 cm X 0.5 cm X skin deep.

C7. Superficial incised wound over front and upper part of leftside chest, over left sterno clavicular joint 3 cm X 0.5 cm Xskin deep.”

5. Undoubtedly, it is a very heinous crime which has beencommitted in the night of 11[th] October, 2000, where a seventy-two-year-Dold man was done to death. In all probability he died because of the maininjury that is injury No.1 which is a 13 cm x 5 cm deep incised woundon the front neck cutting jugular veins on both sides. The death wouldhave been in a few minutes due to the excessive loss of blood. Thepost-mortem was conducted by Dr. Nissar Ahmad, who was the AssistantProfessor in the Department of Forensic Medicines Bowring Hospital,EBangalore Medical College, Bangalore. He was later, examined in thetrial as PW-5. According to him, all the wearing apparels of the deceased,like white lungi, white Katcha, white baniyan and white sacred threadwere all stained with blood, which were all handed over to the police.He had noticed the ante mortem injuries, as already referred above. AllFthe injuries were fresh injuries. On opening the dead body, he found allthe internal organs intact but pale. His opinion was that death was dueto shock and hemorrhage due to the ante mortem injuries in the frontneck. On being questioned by the Court he replied that a person whosustains such injuries in the front neck, can only survive for a few secondsand death is immediate and the injured cannot raise his voice. This expertGwitness is referring to in particular to injury No.1, referred above. In hispost mortem report the cause of death is given as :- “Death was due to shock and hemorrhage as a result of injuryover front of neck sustained.”

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6. Meanwhile the investigation had commenced in the presentcase. The present appellants were, however arrested by PW-15 whowas the Police Inspector and Investigation Officer in another case ofdacoity and murder which was registered at Police Station, Vijayanagaras Crime No.674 of 1999 under Sections 354/397, IPC. This InvestigationOfficer (PW-15) received information on 31.01.2001 about the locationof an accused called ‘Dodda Hanuma’. Dodda Hanuma was also anaccused in this case and had faced trial and was convicted like the otherappellants (he is, however, not before this Court amongst the presentappellants). The information received was that Dodda Hanuma hadescaped from the Chittor Jail after assaulting the staff of the jail. Followingthe lead, this Police Inspector (PW-15) along with some Constablesreached Eachanoor village and caught the accused along with four otherpersons at about 9.00 PM. All the five persons were taken into custodyand were brought to Vijayanagar Police Station and were formally arrestedon 01.02.2001. A voluntary statement was then given by Dodda Hanuma(Accused No. 2), and finally all the five accused confessed that theyhad committed the dastardly murder of S. Ramakrishnan on that fatefulnight of 11.10.2000. They also volunteered to show the place where theyhad committed the crime on the night of 11.10.2000 (i.e. House No. 19/1, Haudin Road), and how they murdered the old aged person and thendecamped with the cash and jewelry. They led the Police party to the saidhouse that is House No. 19/1, Haudin Road, showed the exact placewhere they had committed murder and got away with the cash and jewelry.Meanwhile a videography statement of the accused was also recorded.The videography was done by one, Sadashiva (PW-16), on 08.02.2001.

7. Consequent to the voluntary statement given by Doda Hanuma,the police party was led to Raja Market, Nagaraj Complex to Shop No.167, i.e., Satyanarayana Jewellery Mart where the accused DodaHanuma identified Janardhana Shetty (P.W.-17) of the said Jewelry Martand asked him to produce the jewels which he had sold to him. Thesewere the jewels pertaining to Kamakshipalya case and Ulsoor case(present case). Janardhana Shetty, then produced a golden ingot, a pairof golden ear rings having red stones and also drops pertaining to thesaid pair of ear rings. The Police seized the said property and prepareda mahazar in the presence of the panchas which is Ex. P-14.

8. Police after its investigation filed its chargesheet for the offencesunder Section 302 read with 34 IPC, against all the accused. The case A

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Awas committed to the Sessions Court and then assigned to the IVthAdditional City Civil and Sessions Judge, Mayohall, Bangalore. On19.03.2003 charges were framed against the accused under Section 302/396, read with Section 34 IPC. Ultimately the accused were convictedby the Trial Court under Section 302 read with Section 34 IPC. Out ofthe five accused, who faced the trial and were convicted and theirBconviction sentence was upheld by the High Court, we have only fouraccused before this court. They are as follows :-

1. Appellant No.1, Munikrishna @ Krishna (accused No.4)

2. Appellant No.2, Nallathimma (accused No.3)

C3.Appellant No.3, Lakshmi (accused No.5)

4. Appellant No.4, Venkatesh @ Chandra (accused No.1)

9. Undoubtedly, it is a case of homicide. The question is whetherthe prosecution has been able to prove the case against the presentDappellants, beyond reasonable doubt. The prosecution in order to establishits case had examined as many as 17 prosecution witnesses, apart fromother exhibits such as forensic and other material, seizure memo of thediscovery of weapon of crime and the gold ornament from the jewelryshop, etc.

10. PW-1 & PW-2 respectively are the son-in-law and daughterEof the deceased. They were the one who had first discovered the deadbody on that fateful night of 11.10.2000. PW-3 is the witness of theinquest reports, PW-4 is the witness for the seizure memo mahazar (Ex.P2). PW-5 is the Doctor who conducted the post-mortem, PW-6 is thewatchman, who was on the watch between 9.30 PM to 5.30 AM. PW-F7 is the witness who accompanied the accused to the place of incident.PW-8 is the constable who shifted the dead body from the house of thedeceased to the hospital for post-mortem. PW-15 is the Inspector ofPolice Station, Vijayanagar and the investigating officer, investigatinganother crime who had arrested the present appellant on 01.02.2001,and PW-9 & PW-14 are the police personnel who accompanied himGwhen he had apprehended the accused. PW-10 is the independent witnessfor the seizure memo of knife (the weapon of crime), and the witnesswhich led to the discovery of the knife on the pointing out of AccusedNo.1. Similarly, PW-11 is the witness to the seizure memo of the goldeningot from the ‘Satyanarayana Jewellery Mart’. PW-12 is the policeHSub-Inspector of police station, Ulsoor, who had received the telephonic message about the crime, at about 11.45 PM on 11.10.2000, saw thedead body and then took PW-1 with him to the police station to lodge theFIR. PW-13 is the police inspector who took up the investigation furtherand finally filed the chargesheet in the case. PW-16 is the videographerwho had video graphed the statements of the accused persons.

PW-17 is the propriety of the Satyanarayana Jewellery Mart.

PW-15 is the Police Inspector who had apprehended the accusedwhile he was investigating another crime. As we can see there is nodirect evidence in the case. There is no forensic or scientific evidencewhich links any of the present appellants to the crime. The so-calleddiscovery of the weapon of crime and the discovery of stolen gold materialis also severely flawed. It is thus in sum and substance entirely a case ofcircumstantial evidence.

11. It is a case of circumstantial evidence and in a case ofcircumstantial evidence, the entire chain of evidence must be completeand the conclusions which is arrived after examining the chain of evidencemust point towards the culpability of the accused and to no otherconclusion. This, however, is clearly missing from the case of theprosecution. The entire case of the prosecution is based on the so-calledconfessional statements or voluntary statements given by accused Nos.1 to 5 (all the present appellants) while they were in police custody.Statement given by an accused to police under Section 161 of CrPC isnot admissible as evidence. The so-called evidence discovered undersection 27 of Indian Evidence Act, 1872, i.e., the recovery of stolenitems and the recovery of the weapon are also very doubtful.

12. In a case of circumstantial evidence, the Court has to scrutinizeeach and every circumstantial possibility, which is placed before it in theform of an evidence and the evidence must point towards only oneconclusion, which is the guilt of the accused. In other words, a veryheavy duty is cast upon the prosecution to prove its case, beyondreasonable doubt. As early as in 1952, this Court in its seminal judgmentof Hanumant Govind Nargundkar & Anr. v. State of MadhyaPradesh[1]had laid down the parameters under which the case ofcircumstantial evidence is to be evaluated. It states: - “… It is well to remember that in cases where the evidence is ofa circumstantial nature, the circumstances from which the 1 AIR 1952 SC 343

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Aconclusion of guilt is to be drawn should in the first instance befully established and all the facts so established should be consistentonly with the hypothesis of the guilt of the accused. Again, thecircumstances should be of a conclusive nature and tendency andthey should be such as to exclude every hypothesis but the oneproposed to be proved. In other words, there must be a chain ofBevidence so far complete as not to leave any reasonable groundfor a conclusion consistent with the innocence of the accusedand it must be such as to show that within all human probabilitythe act must have been done by the accused…”

Hanumant (supra) has been consistently followed by this Court.CTo name a few, Tufail (Alias) Simmi v. State of Uttar Pradesh[2],Ram Gopal v. State of Maharashtra[3]and Sharad Birdhichand Sardav. State of Maharashtra[4].

In Musheer Khan @ Badshah Khan & Anr. v. State ofMadhya Pradesh[5]dated 28.01.2010, this Court while discussing theDnature of circumstantial evidence and the burden of proof of prosecutionstated as under: - “39. In a case of circumstantial evidence, one must look forcomplete chain of circumstances and not on snapped and scatteredlinks which do not make a complete sequence. This Court findsEthat this case is entirely based on circumstantial evidence. Whileappreciating circumstantial evidence, the Court must adopt acautious approach as circumstantial evidence is “inferentialevidence” and proof in such a case is derivable by inference fromcircumstances.F40. Chief Justice Fletcher Moulton once observed that “proof doesnot mean rigid mathematical formula” since “that is impossible”.However, proof must mean such evidence as would induce areasonable man to come to a definite conclusion. Circumstantialevidence, on the other hand, has been compared by Lord ColeridgeG“like a gossamer thread, light and as unsubstantial as the air itselfand may vanish with the merest of touches”. The learned Judgealso observed that such evidence may be strong in parts but it 2 (1969) 3 SCC 198

3 (1972) 4 SCC 625

4 (1984) 4 SCC 116

H5 (2010) 2 SCC 748

may also leave great gaps and rents through which the accusedmay escape. Therefore, certain rules have been judicially evolvedfor appreciation of circumstantial evidence.

41. To my mind, the first rule is that the facts alleged as the basisof any legal inference from circumstantial evidence must be clearlyproved beyond any reasonable doubt. If conviction rests solely oncircumstantial evidence, it must create a network from which thereis no escape for the accused. The facts evolving out of suchcircumstantial evidence must be such as not to admit of anyinference except that of guilt of the accused. (See RaghavPrapanna Tripathi v. State of U.P. [AIR 1963 SC 74 : (1963) 1Cri LJ 70] )

42. The second principle is that all the links in the chain of evidencemust be proved beyond reasonable doubt and they must excludethe evidence of guilt of any other person than the accused. (SeeState of U.P. v. Dr. Ravindra Prakash Mittal [(1992) 3 SCC300 : 1992 SCC (Cri) 642 : 1992 Cri LJ 3693] , SCC p. 309, para20.)

43. While appreciating circumstantial evidence, we must rememberthe principle laid down in Ashraf Ali v. King Emperor [21 CWN1152 : 43 IC 241] (IC at para 14) that when in a criminal casethere is conflict between presumption of innocence and any otherpresumption, the former must prevail.

44. The next principle is that in order to justify the inference ofguilt, the inculpatory facts must be incompatible with the innocenceof the accused and are incapable of explanation upon any otherreasonable hypothesis except his guilt.

45. When a murder charge is to be proved solely on circumstantialevidence, as in this case, presumption of innocence of the accusedmust have a dominant role. In Nibaran Chandra Roy v. KingEmperor [11 CWN 1085] it was held that the fact that an accusedperson was found with a gun in his hand immediately after a gunwas fired and a man was killed on the spot from which the gunwas fired may be strong circumstantial evidence against theaccused, but it is an error of law to hold that the burden of provinginnocence lies upon the accused under such circumstances. Itseems, therefore, to follow that whatever force a presumption ABC

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arising under Section 106 of the Evidence Act may have in civil orin less serious criminal cases, in a trial for murder it is extremelyweak in comparison with the dominant presumption of innocence.

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46. The same principles have been followed by the ConstitutionBench of this Court in Govinda Reddy v. State of Mysore [AIR1960 SC 29 : 1960 Cri LJ 137] where the learned Judges quotedthe principles laid down in Hanumant Govind Nargundkar v. Stateof M.P. [AIR 1952 SC 343 : 1953 Cri LJ 129] The ratio in Govind[AIR 1952 SC 343 : 1953 Cri LJ 129] quoted in AIR para 5, p. 30of the Report in Govinda Reddy [AIR 1960 SC 29 : 1960 Cri LJ137] are:

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“5. … ‘10. … in cases where the evidence is of a circumstantialnature, the circumstances [which lead to the conclusion of guiltshould be in the first instance] fully established, and all the factsso established should be consistent only with the hypothesis ofthe guilt of the accused. Again, the circumstances should be ofDa conclusive nature and tendency and they should be such as toexclude every hypothesis but the one proposed to be proved.In other words, there must be a chain of evidence so farcomplete as not to leave any reasonable ground for a conclusionconsistent with the innocence of the accused and it must beE[shown] that within all human probability the act must havebeen [committed] by the accused.’ [ As observed in HanumantGovind Nargundkar v. State of M.P., AIR 1952 SC 343 at pp.345-46, para 10.]’’

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The same principle has also been followed by this Court in MohanFLal Pangasa v. State of U.P. [(1974) 4 SCC 607: 1974 SCC (Cri)643 : AIR 1974 SC 1144]”

13. In the case at hand the entire case of the prosecution is builtupon the confessional/voluntary statements made by the accused personsbefore the police and the recovery of the alleged weapon of murderGrecovered at the pointing out of the accused and the recovery of allegedstolen gold material from a jewelry shop, again, on pointing out of theaccused. Let us deal with the first evidence. As per the police, all theaccused were arrested from a school building on 31.01.2001 and formallyarrested on 01.02.2001. They confessed to as many as 24 crimescommitted by them. Their confessions of how they planned and executed H

MUNIKRISHNA @ KRISHNA ETC. v. STATE BY ULSOOR PS[SUDHANSHU DHULIA, J.]

the murders has been captured on a video, which was also exhibitedbefore the court. The Court has taken this evidence of voluntarystatements made by the accused and hence admitted it as evidence.This was done both by the Sessions Court as well as the High Court.The learned Sessions Judge records in his judgment dated 19.03.2003records as under: -

“… The prosecution has played the audio in the open Court Hallin the presence of the accused persons and jam-packed CourtHall and on a mere perusal and hearing the video, it will be evidentthat the accused persons themselves had explained the entireincident the manner in which they have committed the offencealleged by the prosecution against them. The video statement ofaccused no. 5 makes it clear as to how the deceased was made toopen the iron grill and as to how they had planned to murder theaged innocent Ramakrishnan who was residing alone. The videostatement of the accused personal reveals the intension of theaccused person and also the manner in which they have madedeceased Ramakrishnan to open the iron grill and also the mannerin which the accused persons have committed the offence inmurdering the aged man.”

The Sessions Court then refers to a decision of Supreme Court,(Shri N. Sri Rama Reddy, Etc. v. Shri V.V. Giri[6]) and states that inview of this decision video tapes can also be used as corroborativeevidence. This is what has been said: - “When such being the case, it goes without saying that the videorecorded statement of the accused persons can also be made useas corroborative piece of evidence. If really, the accused personsafter witnessing and hearing the video cassettes suspected thebonafide or genuineness of the video recorded statement of theaccused persons, instead of taking contention that their statementsobtained by making them to consume alcohol, they would haverequested the Court for subjecting the video tape records forscientific scrutiny. In view of the rulings of the HonourableSupreme Court, even video tapes of the voluntary statement ofthe accused persons can be used as the corroborative piece ofevidence. Thus, on perusal of the materials on record, it will bequite manifest that the circumstances relied upon by the prosecution A

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430SUPREME COURT REPORTS

Awill bring home the guilt of the accused beyond all reasonabledoubt”

Later the High Court while hearing the appeal of the accusedgives a similar finding as follows : - “It is not the case of the accused that they have not given voluntaryBstatements before PW 15 as per Ext P 8, 9, 10, 11 & 12. However,it is their contention that they were made to drink liquor and underthe influence of liquor, the statements have been taken as perExs. P-8,9,10,11 & 12 and the statements were not voluntary.The material on record does not probablise the said version takenCby the accused. In the absence of proof of the said fact, voluntarystatements at Exs. P- 8,9,10,11 & 12 given by accused Nos. 1 to5 is proved to be voluntary as there is no material on record whichwould probablise the defence taken by the accused that they weremade to drink liquor and their statements were recorded in theinfluence of drinking and it was not voluntary”.DThe High Court then affirms the finding of the Sessions Court andthe admissibility of the voluntary statement of the accused and thevideography placed before the Court and states as under: -

“It is clear from the above said proved circumstances that theEaccused have committed murder of S Ramakrishnan aged 72 yearsby slitting his neck as he was living alone in the house. The onlydefence taken by the accused is that they have given voluntarystatements under the influence of liquor which is not probabilisedby the material on record and in view of statements of the accusedpointing to the scene of offence wherein S Ramakrishnan wasFmurdered and Ramakrishnan suffered homicidal death andrecovery of M.O.1 which according to P.W.5 would cause injuryfound on the body of S Ramakrishnan and also recovery ofornaments which they melted into ingot from the shop of P.W.17and the fact that accused have shown the place where theyGcommitted the scene of offence in furtherance of the voluntarystatements have been conclusively proved by the prosecution andsuch circumstances form a complete link which would point outonly to the guilt of the accused and is wholly inconsistent withtheir innocence.

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The trial Court has appreciated oral and documentary evidence onrecord in the right perspective and on re-appreciation of the entirematerial on record, we hold that finding of guilt arrived at againstthe accused Nos.1 to 5 – appellants herein for having committedthe offence punishable under Sections 302 & r/w 34 of IPC isjustified and sentence imposed thereon cannot also be said to beexcessive so as to call for interference in this appeal.”

Both the Trial Court and the Appellate Court went completelywrong in placing reliance on the voluntary statements of the accusedand their videography statements. Under Article 20(3)[7] of the Constitutionof India, an accused cannot be compelled to be a witness against himself.Again, under Section 25[8] of the Indian Evidence Act, 1872; a confessionalstatement given by an accused before a Police officer is inadmissible asevidence.

The reference of the Supreme Court judgment by the trial Court(Shri N. Sri Rama Reddy v. Shri V.V. Giri) is also misplaced. Thatcase only refers to the admissibility of a tape- recorded conversation inan election petition which is tried before a Court under the CivilProcedure Code (Section 87 of the Representation of People Act, 1951).This Court, in the above cited judgment was not dealing with a criminalcase and most certainly not on the admissibility of a statement given byan accused to the Police under Section 161 of Code of CriminalProcedure. Indeed, the above judgment also ends with a note of caution:

“30. We once again emphasize that this order relates only to theadmissibility in evidence of the conversation recorded on tapeand has not dealt with the weight to be attached to that evidence.It must also be pointed out that the question, whether the pamphlets,Exhibits P-18-B and P-37- A, have been circulated in the manneralleged by the petitioners and the further question whether theyamount to exercise of undue influence are also matters whichhave not been considered in this order. The above are all aspectswhich will be dealt with in the judgment, while disposing of theelection petitions.”

7 20 (1) XXX XXX

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(3) No person accused of any offence shall be compelled to be a witness againsthimself.

8 25. Confession to police-officer not to be proved. –– No confession made to apolice-officer, shall be proved as against a person accused of any offence.

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AThus, the opinion of this Court regarding the admissibility of atape-recorded conversation, was in an entirely different context.

As far as the recovery of gold ingot is concerned, PW-1, i.e., theson-in-law and the complainant has said in his evidence before the Courtthat he does not recognize the ingot and it does not belong to his father-Bin-law. Therefore, the gold which has been recovered has not beenidentified as the one which was stolen from the house of the deceased.The recovery of knife is also doubtful. Firstly, Venkatesh who had ledthe discovery had mentioned about the knife and its disposal on 01.02.2001when he was arrested. The recovery, however was made on 15.05.2001i.e., four and a half months later. Why such a belated recovery wasCmade has not been explained. Secondly, the independent witness to thisrecovery PW-10 Murugan, had also turned hostile during cross-examination as he said that he does not recognize Venkatesh (accused)on whose pointing out the alleged recovery was made. So much for therecovery of the murder weapon.

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14. At this juncture, we may also add that some of the accusedwho were before us were also facing another trial of similar nature inwhich they were convicted on 17.09.2010 and sentenced to death.Thereafter in Appeal their conviction was upheld, but the sentence wasconverted to life imprisonment by the High Court. They finally cameEbefore this Court in Appeal. The course of investigation and theappreciation of evidence by the Trial Court and the Appellate Court hadtaken a similar course as they have in the present case. While hearingtheir Criminal Appeal (Nos. 1476-1477 of 2018)[9] this Court made certainobservations, which are equally relevant for the present case as well.Regarding the investigation of the Police in the case, this is what wasFsaid by this Court:

“…19. We must observe that we have repeatedly found a tendencyon part of the Prosecuting Agency in getting the entire statementrecorded rather than only that part of the statement which leadsto the discovery of facts. In the process, a confession of an accusedGwhich is otherwise hit by the principles of Evidence Act finds itsplace on record. Such kind of statements may have a directtendency to influence and prejudice the mind of the Court. Thispractice must immediately be stopped. In the present case, the MUNIKRISHNA @ KRISHNA ETC. v. STATE BY ULSOOR PS[SUDHANSHU DHULIA, J.]

Trial Court not only extracted the entire statements but also reliedupon them.

20. The other disturbing feature that we have noticed is thatvoluntary statements of the appellants were recorded on a DVDwhich was played in Court and formed the basis of the judgmentof the Trial Court as is noticeable from paragraph Nos. 34 and 35of its judgment. Such a statement is again in the nature of aconfession to a Police Officer and is completely hit by the principlesof Evidence Act. If at all the accused were desirous of makingconfessions, the Investigating Machinery could have facilitatedrecording of confession by producing them before a Magistratefor appropriate action in terms of Section 164 of the Code. Anydeparture from that course is not acceptable and cannot berecognized and taken on record as evidence. The Trial Court erredin exhibiting those DVD statement Exh.P-25 to 28. As a matter offact, it went further in relying upon them while concluding thematter on the issue of conviction.

21. What has further aggravated the situation is the fact that saidstatements on DVD recorded by the Investigating Agency wereplayed and published in a program named “Putta Mutta” by UdayaTV. Allowing said DVD to go into the hands of a private TVchannel so that it could be played and published in a program isnothing but dereliction of duty and direct interference in theadministration of Justice. All matters relating to the crime andwhether a particular thing happens to be a conclusive piece ofevidence must be dealt with by a Court of Law and not through aTV channel. If at all there was a voluntary statement, the matterwould be dealt with by the Court of Law. The public platform isnot a place for such debate or proof of what otherwise is theexclusive domain and function of Courts of law. Any such debateor discussion touching upon matters which are in the domain ofCourts would amount to direct interference in administration ofCriminal Justice.

22. The last disturbing feature is the fact that Chart Exh.P-29was taken to be proof of the activities of the gang to which theappellants allegedly belonged. Apart from exhibiting the chart, nodetails or documents either in the form of chargesheet or orders,depositions were produced on record. If the Prosecution wanted AB

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the Court to take note of the fact that there were other matters inwhich accused were involved, the concerned Chargesheets shouldhave been produced on record along with sufficient details includingthe judgments or orders of conviction. A mere chart cannot betaken as proof of the involvement of the accused in other crimeseither at the stage of conviction or sentence. But that factorseriously weighed with the Trial Court as is obvious fromparagraphs 15 to 18 of the order of sentence. In fact, suchinvolvement was taken to be one of the reasons why the deathsentence was awarded by the Trial Court. Such a practice cannever be approved.

23. We must clarify that the approach at certain stages includingthe stage of considering the bail application may be qualitativelydifferent. At the stage of consideration of bail, the primary concernis to weigh in balance the liberty of an accused and the possibleprejudice that may get visited upon the societal interest in casehe is released. It would therefore be apt and proper to considerhis involvement in other crimes. But at the stage of final assessmentwhether conviction be recorded or not, the matter must beconsidered purely on its merits unless the very membership of agang or a group or an outfit itself can amount to an offence or asan aggravated form of an offence. Again, at the stage of sentencing,his involvement in other crimes may be a relevant factor providedthe concerned material in the form of concluded judgments in theother matters are brought on record in a manner known to law.The established involvement in other matters would then certainlybe relevant while dealing with the question whether the concernedaccused is required to be dealt with sternly or leniently.

24. We have gone through Chart Exh. P-29. According to saidchart, in so far as the present appellants are concerned, they weresaid to be involved in one more crime which has given rise toSpecial Leave Petition (Crl) Diary No.24079 of 2020 and waslisted along with the instant appeal before us. That matter is stillpending consideration before us. Therefore, what weighed withthe Trial Court was the alleged involvement of the other membersof the alleged gang in so many similar activities, in support ofwhich there was no concrete material, other than the confessionsof the appellants.”

15. We must add that this Court in its order dated 19.04.2022 hasallowed the above appeal and has set aside the order of the SessionsJudge as well as of the High Court which had placed its reliance almostcompletely on the statement made by the accused before the Policeunder Section 161 of CrPC. This is exactly what has been done in thepresent case as well and consequently this too must meet the same fate.Indeed, it was also the case of the prosecution that the appellants belongto a gang which commits crime of this nature and that the modus operandiis by and large the same in all cases. It was alleged that the appellantsare involved in as many as 20-25 such cases. But what was given beforethe Court was a chart giving description of offences, numbers and Sectionsunder which such offences had been allegedly committed. No documentsin the nature of chargesheet or any other proof was submitted. Therefore,this factor cannot be taken into account. This was also not taken intoaccount by this Court in the above order dated 19.04.2022, while allowingthe Criminal Appeal No. 1476-1477 of 2018 as referred above.

16. Ordinarily, this Court does not interfere with concurrentfindings of facts as they are in the present case. But, then in the presentcase it has become necessary to interfere with the findings for the reasonsthat both the High Court as well as the Sessions Court have ignored thewell-established principles of criminal jurisprudences and have relied uponfacts and evidences which are clearly inadmissible in a court of law.The crime indeed was ghastly, to say the least. Yet, linking the crime tothe present appellants is an exercise which was to be undertaken in thecourt of law under established principles of law. This has not been done.This Court in Sharad Birdhichand Sarda (supra) has cautioned thus: - “179. We can fully understand that though the case superficiallyviewed bears an ugly look so as to prima facie shock theconscience of any court yet suspicion, however great it may be,cannot take the place of legal proof. A moral conviction howeverstrong or genuine cannot amount to a legal conviction supportablein law.

180. It must be recalled that the well- established rule of criminaljustice is that “fouler the crime higher the proof”. In the instantcase, the life and liberty of a subject was at stake. As the accusedwas given a capital sentence, a very careful, cautious andmeticulous approach was necessary to be made.”

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A17. In view of the above, these appeals are allowed, the order ofthe Sessions Judge dated 19.03.2003 and the High Court dated 31.08.2010are hereby set aside, the appellants shall be released from jail, unlessthey are wanted in some other crime.

BDivya Pandey(Assisted by : Neha Sharma, LCRA)

Appeals allowed.

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