DEVI LAL versus STATE OF RAJASTHAN on 8 January 2019

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SUPREME COURT REPORTS

[2019] 1 S.C.R.

DEVI LAL

v.

STATE OF RAJASTHAN

(Criminal Appeal No. 148 of 2010)

JANUARY 08, 2019

[RANJAN GOGOI, CJI, K.M. JOSEPH ANDAJAY RASTOGI, JJ.]

Penal Code, 1860:

s. 302 and s.120B – Murder alleged against four accused –Prosecution – Circumstantial evidence – Trial court convicted thetwo appellants-accused relying on evidence of three witnesses andon extra-judicial confession made by one of the appellant-accused– Other two accused were acquitted – High Court confirmed theorder of trial court – On appeal, held: Extra-judicial confession isnot proved – The chain of circumstances is also not complete andcoherent to permit conviction of appellants-accused on the basisthereof without any trace of doubt – Appellants-accused are entitledto benefit of doubt and hence entitled to be acquitted.

Evidence:

Circumstantial evidence – Evidentiary value – Held: Whilescrutinising the circumstantial evidence, a court has to evaluate itto ensure that the chain of events is established clearly andcompletely to rule out any reasonable likelihood of innocence ofthe accused.

Extra-judicial confession

Evidentiary value – Held: Extra-judicial confession thoughis used against its maker, but on the face of it, is a weak evidence –It is advisable for the court to look for a corroboration with theother evidence on record.

Jurisprudence:

Criminal jurisprudence – In the case of circumstantialevidence, if two views are possible (one pointing to the guilt andother to the innocence of the accused) the accused is entitled tohave the benefit of one which is favourable to him.

Allowing the appeals, the Court

HELD: 1. The case of the prosecution is based oncircumstantial evidence. The circumstances which lead the trialJudge to hold the appellants guilty under Section 302 and 120BIPC and confirmed by the High Court is primarily based on theevidence of complainant (PW-2), daughter of deceased (PW-5)and wife of deceased (PW-10) and also relied upon the extra judicialconfession made by the co-accused ‘B’ to PW-3. [Para 6][173-A-B]

2. Neither in the initial complaint on which the missingreport was lodged nor at the stage after inquiry, when the FIRcame to be registered (Exh. P-73), the name of appellant-accused‘D’ surfaced. Even in the statement of PW-5, while recordingstatement under Section 164 CrPC, (Exh. D-5), no such referencewas made of any conspiracy having been hatched by accused ‘D’.In the testimony of PW-5 and PW-10, it was deposed that accused‘D’ came to the house on 5[th] February 1999 and wanted to purchasethe half portion of Bada from the deceased for a sum of Rs. 10,000/-. ‘D’ threatened the deceased to sell his Bada which he refused.[Para 7][173-B-D]

3. As regards appellant-accused ‘B’, it was deposed by PW-5 and PW-10 that he was known to their family as accused ‘B’used to take money from the deceased and used to return thesame. Deceased lended Rs. 50,000/- to accused ‘B’, which hadbeen reduced into writing in the ledger book. When the deceasedwent to take money from ‘B’, he refused to return the same andstarted quarrelling. The deceased had informed this to PW-5and PW-10. The money as demanded by the deceased led tosuspicion of the commission of crime. But both the witnessesi.e. PW- 5 and PW-10, in their cross-examination, stated that theydid not know when accused ‘B’ had borrowed money from thedeceased. [Para 8][173-D-F]

4. It is true that an extra judicial confession is used againstits maker but as a matter of caution, advisable for the Court tolook for a corroboration with the other evidence on record. Extrajudicial confession is, on the face of it, a weak evidence and theCourt is reluctant, in the absence of a chain of cogent A

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Acircumstances, to rely on it, for the purpose of recording aconviction. In the instant case, there are no additional cogentcircumstances on record to rely on it. At the same time PW-3,while recording his statement under Section 164 CrPC, has notmade such statement of extra judicial confession(Exh. D-5) madeby accused ‘B’. In addition, there are no other circumstances onBrecord to support it. [Para 9][173-G-H; 174-A-B]Gopal Sah v. State of Bihar (2008) 17 SCC 128 – reliedon.

5.1 While scrutinising the circumstantial evidence, a CourtChas to evaluate it to ensure that the chain of events is establishedclearly and completely to rule out any reasonable likelihood ofinnocence of the accused. The underlying principle is whetherthe chain is complete or not, indeed it would depend on the factsof each case emanating from the evidence and there cannot be astraight jacket formula which can be laid down for the purpose.DBut the circumstances adduced when considered collectively, itmust lead only to the conclusion that there cannot be a personother than the accused who alone is the perpetrator of the crimealleged and the circumstances must establish the conclusivenature consistent only with the hypothesis of the guilt of theEaccused. In the case of circumstantial evidence, two views arepossible on the case of record, one pointing to the guilt of theaccused and the other his innocence. The accused is indeedentitled to have the benefit of one which is favourable to him.[Paras 15, 17][177-C-E, G-H]

FSharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116 : [1985] 1 SCR 88; Sujit Biswas v.State of Assam (2013) 12 SCC 406 : [2013] 3 SCR 830;Raja alias Rajinder v. State of Haryana (2015) 11 SCC43 : [2015] 3 SCR 947 – relied on.

G5.2 On an analysis of the overall fact situation in the instantcase, and considering the chain of circumstantial evidence reliedupon by the prosecution and noticed by the High Court in theimpugned judgment, to prove the charge is visibly incompleteand incoherent to permit conviction of the appellants on the basisthereof without any trace of doubt. Though the materials onH

record hold some suspicion towards them, but the prosecutionhas failed to elevate its case from the realm of “may be true” tothe plane of “must be true” as is indispensably required in lawfor conviction on a criminal charge. It is trite to state that in acriminal trial, suspicion, howsoever grave, cannot substitute proof.The appellants are thus entitled to the benefit of doubt. [Paras16, 18][177-E-G; 178-B]

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.148 of 2010.

From the Judgment and Order dated 30.01.2009 of the HighCourt of Rajasthan at Jodhpur in D.B. Criminal Appeal No. 852 of2003.

WITH

Criminal Appeal No. 149 of 2010.

Pallav Shishodia, Sr. Adv., Ms. Meera Bhatia (A.C.), H. D.Thanvi, Sarad Kumar Singhania, Digvijoy Sodhi, Advs. for the appellant.

Anish Roy, Milind Kumar, Advs. for the respondent.

The Judgment of the Court was delivered by RASTOGI, J. 1. Both the appellants, Babu Lal and Devi Lal areaggrieved by the affirmation of their conviction under Section 302 andother with the aid of Section 120 B of the Indian Penal Code and sentencedto life imprisonment under the impugned Judgment dated 30[th] January,2009, seek this Court’s intervention.

2. Brief facts of the case, as per prosecution, post-incident, arethat on 8[th] February 1999 at 7.15 p.m. complainant Vijay Singh (PW-2)submitted a written report (Exhibit P-1) at Police Station, Nimbahera,informing that he and his cousin brother Dharam Chand(deceased) wereliving with their families in separate houses in village Binota. In the A

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Aevening of 7[th] February, 1999 at 6.00 p.m., daughter of the deceasedDharam Chand informed him on telephone that her father, who hadgone to Bhagwanpura on Motor Cycle, had not returned. Thecomplainant, along with other neighbours, went to search deceasedDharam Chand on 8[th] February, 1999 and at village Bhagwanpura, outsidethe godown of brother deceased Dharam Chand, found his motorcycleBbut his whereabouts were not made known. On his written complaint, amissing person report (Exh. P-75) was lodged. The Investigating Officer,in the course of enquiry, made from Shambhu Singh (PW-3), revealedthat on 7[th] February, 1999, accused Babu Lal had hired his jeep. BabuLal and his labourers Logar and Bagdiram carried drum which containedCwheat. The drum was alighted from the jeep on way near field of Logar,making Shambhu Singh to sit at the house of Logar and on excuse ofresponding to call of nature, Babu Lal, Logar and Bagdiram got awayfor about 1.30 hours. When they came back, the drum was not there.On inquiry by Shambhu Singh (PW-3), Babu Lal told that Logar and Bagdiram shall deliver it afterwards. On further inquiry, it revealed thatDon 5[th] February, 1999, hot altercations had taken place between BabuLal and deceased Dharam Chand for some money transactions and oncarrying such drum, Babu Lal caused some suspicion. During the courseof search, it was found that from a dry well, bad odour was emitting.When freshly cut branches and leaves of the teak tree were removed,Ethe dead body of the deceased Dharam Chand was found. On the basisof Exhibit P-73, formal FIR came to be registered on 11[th] February,1999 at Police Station, Nimbahera.

3. After the investigation, charge-sheet was filed against the fouraccused persons namely, Babu Lal, Devi Lal, Keshu Ram @ PanchiyaFMeena and Logar Rawat. All the four faced trial. The learned trialJudge by its impugned judgment acquitted the accused persons KeshuRam @ Panchiya Meena and Logar Rawat holding accused Babu Lalguilty for the offence under Section 302 read with Section 34 and 120-BIPC and appellant Devi Lal for the offence of Section 120-B IPC, ofhatching a conspiracy to commit murder.G

4. The appeals preferred by both the appellants before the HighCourt came to be dismissed affirming their conviction and sentence videjudgment impugned dated 30[th] January, 2009.

5. Before adverting to the rival submissions, it would be appositeHto first take analysis of the evidence on record.

6. The case of the prosecution is based on circumstantial evidence.The circumstances which lead the trial Judge to held the appellants guiltyunder Section 302 and 120B IPC and confirmed by the High Court isprimarily based on the evidence of complainant Vijay Singh (PW-2),Vandna (PW-5) and Uma Devi (PW-10), daughter and wife of thedeceased and also relied upon the extra judicial confession made by theco-accused Babu Lal to Shambhu Singh (PW-3).

7. At the outset, it may be noticed that neither in the initial complainton which the missing report was lodged nor at the stage after inquiry,when the FIR came to be registered (Exh. P-73), the name of appellantDevi Lal surfaced. Even in the statement of Vandna(PW-5), whilerecording statement under Section 164 CrPC, (Exh. D-5), no suchreference was made of any conspiracy having been hatched by DeviLal, the accused appellant. In the testimony of PW-5 Vandna and PW-10 Uma Devi, it was deposed that accused Devi Lal came to the houseon 5[th] February 1999 and wanted to purchase the half portion of Badafrom the deceased Dharam Chand for a sum of Rs. 10,000/-. Devi Lalthreatened the deceased to sell his Bada which he refused.

8. As regards appellant Babu Lal, it was deposed by Vandna (PW-5) and Uma Devi (PW-10) that he was known to their family as BabuLal used to take money from the deceased and to return the same.Deceased Dharam Chand lended Rs. 50,000/- to accused Babu Lal,which had been reduced into writing in the ledger book. When deceasedDharam Chand went to take money from Babu Lal, he refused to returnthe same and started quarrelling. The deceased had informed this toVandna (PW-5) and Uma Devi (PW-10). The money as demanded bythe deceased led to suspicion of the commission of crime. But both thewitnesses Vandna (PW- 5) and Uma Devi (PW-10), in their cross-examination, stated that they did not know when the accused Babu Lalhad borrowed money from the deceased.

9. It is true that an extra judicial confession is used against itsmaker but as a matter of caution, advisable for the Court to look for acorroboration with the other evidence on record. In Gopal Sah v. Stateof Bihar 2008(17) SCC 128, this court while dealing with extra judicialconfession held that extra judicial confession is, on the face of it, a weakevidence and the Court is reluctant, in the absence of a chain of cogentcircumstances, to rely on it, for the purpose of recording a conviction.In the instant case, it may be noticed that there are no additional cogent AB

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Acircumstances on record to rely on it. At the same time, Shambhu Singh(PW-3), while recording his statement under Section 164 CrPC, has notmade such statement of extra judicial confession(Exh. D-5) made byaccused Babu Lal. In addition, there are no other circumstances onrecord to support it.

B10. The other connecting evidence on which reliance was placedby the prosecution was that accused Babu Lal had given information ofhanding over the torn leaf of Bahi obtaining signatures of deceasedDharam Chand to accused Devi Lal. Accused Devi Lal got the saidleaf recovered by giving information to the Investigating Officer. Thereis no justifiable explanation available which came on record as to howCthe torn leaf came in the possession of Devi Lal as the said paper wastorn from the Bahi(Article 27) which was recovered from the accusedBabu Lal, which has been matched by FSL report. There was also nojustification which came forward from the prosecution as to how thetorn Bahi paper of Babu Lal containing the signatures of deceasedDDharam Chand with black ink came to him. Pen was recovered on theinformation of accused Babu Lal, by which handwriting found on theleaf recovered from accused Devi Lal. The further circumstance wasrecovery of Rs. 11,200/- on the information given by the accused BabuLal but from where this money had come to Babu Lal, was not clarifiedby the prosecution. The other circumstances completing the chain wasEthat accused Devi Lal had not given any clarification with regard to thefact that by which information Devi Lal had come to Babu Lal whichhad been indicated in the diary recovered from accused Devi Lal underSection 27 of the Evidence Act. Accused Babu Lal was arrested on13[th] February, 1999 and accused Devi Lal was arrested on 15[th] February,F1999 for the alleged incident of 7[th] February, 1999 which came toknowledge of informant on 8[th] February, 1999 and report was lodged on11[th] February, 1999 and the alleged recovery of torn page of Bahi, whichobtained signature of the deceased along with the diary of 1999(ExhibitP-79), under Section 27 of the Evidence Act was made on 24[th] February,

1999. The Bahi, as such, was never produced. Apart from non-Gproduction of Bahi, to prove the provonance of the torn piece of blankpaper, the similarity of the ink on this torn piece of paper and ledger wasextremely doubtful in view of the objection by the FSL and responselead to it which the Investigating Officer(PW-33) has also admitted inthe cross examination.

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11. What was relied upon by the High Court was that paper Article7 recovered on disclosure of appellant accused Devi Lal(from “Darraj”to Barsot”) was one which was torn away from Bahi recovered oninformation at the instance of the appellant Babu Lal. Secondly, thatpiece of paper had lower portion which had signatures of deceasedDharam Chand and other than that, the paper was blank.

12. Summarily, the circumstances in totality apart from the extrajudicial confession which has been noticed by the High Court are referredto as under:- “1. Appellant-Devilal wanted to purchase half portion of ‘Bara’from deceased for which he actively pursued.

2. On February 7[th], in morning, around 9-10, deceased left forBhagwanpura-not a very distant village.

3. Around 10-10.20 AM, he telling of going to house of Babulalfor receiving money-went towards and to house(‘Nohra’) ofBabulal.

Going to house of Babulal-than never seen alive.

4. Jeep of Shambhu hired by Babulal on February 6[th] for use inevening of 7[th] for going village Dhikiya.

Then in evening of 7[th] around 8 p.m., Babulal and two other carriedweighty drum which left at isolated site-body of deceased foundin a dry well like pit-near the place drum was left.

5. On information of Babulal, his own concealed clothes recoveredfrom his house-also were blood stains on compound wall and soilof his ‘Nohra’. On clothes of Babulal and clothes of deceasedblood ‘A’ group.

Stains found on the floor of ‘Nohra’ of ‘A’ group.

Stains on wall of ‘Nohra’ of human blood.

6. On information of Babulal-that is from his possession, recovereda ‘Bahi’ – of the ‘Bahi’ a leaf about 7-8" X 6-7" was torn away.

7. Babulal informed that above half torn leaf is with Babulal.

8. On information and at the instance of Devilal, that is from hispossession, found above half torn leaf of ‘Bahi’-recovered from A

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[2019] 1 S.C.R.

A“Darraj”, that is a narrow space between frame of door andsurrounding wall.

9. On this torn away leaf at lower side, are signatures of DharamChand-otherwise blank is the paper.”

13. Without going into detailed scrutiny of the facts on recordBunder consideration, the circumstances which emerged and taken noteof under the impugned judgment in itself gives a suspicion in completingthe chain of commission of crime beyond doubt, being committed by theaccused appellants.

14. The classic enunciation of law pertaining to circumstantialCevidence, its relevance and decisiveness, as a proof of charge of acriminal offence, is amongst others traceable decision of the Court inSharad Birdhichand Sarda Vs. State of Maharashtra 1984(4) SCC116. The relevant excerpts from para 153 of the decision is assuredlyapposite:- D“153. A close analysis of this decision would show that thefollowing conditions must be fulfilled before a case against anaccused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to bedrawn should be fully established.

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It may be noted here that this Court indicated that thecircumstances concerned “must or should” and not “may be”established. There is not only a grammatical but a legal distinctionbetween “may be proved” and “must be or should be proved” aswas held by this Court in Shivaji Sahabrao Bobade & Anr. Vs. FState of Maharashtra [(1973) 2 SCC 793 where the observationswere made:

“Certainly, it is a primary principle that the accused must beand not merely may be guilty before a court can convict andthe mental distance between ‘may be’ and ‘must be’ is longGand divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that the accusedis guilty, H

(3) the circumstances should be of a conclusive nature andtendency,

(4) they should exclude every possible hypothesis except the oneto be proved, and

(5) there must be a chain of evidence so complete as not to leaveany reasonable ground for the conclusion consistent with theinnocence of the accused and must show that in all humanprobability the act must have been done by the accused.”

15. It has further been considered by this Court in Sujit BiswasVs. State of Assam 2013(12) SCC 406 and Raja alias Rajinder Vs.State of Haryana 2015(11) SCC 43. It has been propounded that whilescrutinising the circumstantial evidence, a Court has to evaluate it toensure the chain of events is established clearly and completely to ruleout any reasonable likelihood of innocence of the accused. The underlyingprinciple is whether the chain is complete or not, indeed it would dependon the facts of each case emanating from the evidence and there cannotbe a straight jacket formula which can be laid down for the purpose.But the circumstances adduced when considered collectively, it mustlead only to the conclusion that there cannot be a person other than theaccused who alone is the perpetrator of the crime alleged and thecircumstances must establish the conclusive nature consistent only withthe hypothesis of the guilt of the accused.

16. On an analysis of the overall fact situation in the instant case,and considering the chain of circumstantial evidence relied upon by theprosecution and noticed by the High Court in the impugned judgment, toprove the charge is visibly incomplete and incoherent to permit convictionof the appellants on the basis thereof without any trace of doubt. Thoughthe materials on record hold some suspicion towards them, but theprosecution has failed to elevate its case from the realm of “may betrue” to the plane of “must be true” as is indispensably required in lawfor conviction on a criminal charge. It is trite to state that in a criminaltrial, suspicion, howsoever grave, cannot substitute proof.

17. That apart, in the case of circumstantial evidence, two viewsare possible on the case of record, one pointing to the guilt of the accusedand the other his innocence. The accused is indeed entitled to have thebenefit of one which is favourable to him. All the judicially laidparameters, defining the quality and content of the circumstantial A

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Aevidence, bring home the guilt of the accused on a criminal charge, wefind no difficulty to hold that the prosecution, in the case in hand, hasfailed to meet the same.

18. In the given facts and circumstances, we are unable to sustaintheir conviction. The appellants are thus entitled to the benefit of doubt.BBoth the appeals succeed and are accordingly allowed. Appellant DeviLal is already on bail. His bail bonds are discharged. Appellant BabuLal who is in custody is directed to be released forthwith, if not requiredin any other case.

CKalpana K. Tripathy

Appeals allowed.

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