VENKATESH @ CHANDRA & ANR. ETC versus STATE OF KARNATAKA on 19 April 2022

SUPREME COURT REPORTS

[2022] 4 S.C.R.

AVENKATESH @ CHANDRA & ANR. ETC.

v.

STATE OF KARNATAKA

(Criminal Appeal Nos. 1476-1477 of 2018)

BAPRIL 19, 2022

[UDAY UMESH LALIT ANDPAMIDIGHANTAM SRI NARASIMHA, JJ.]

Evidence Act, 1872: s.27 – Settled Legal Position – Going bythe parameters of s.27 of the Evidence Act, only so much ofCinformation which relates distinctly to the facts thereby discoveredcan be stated to have been proved – Only that part of the statementwhich leads to the discovery of certain facts alone could be markedin evidence and not the entire of the statement – All the earlier factsnarrated in the statement about past history which are in the natureDof self-implication, would be inadmissible as amounting to aconfession made to a police officer.

Practice and Procedure: The Prosecuting Agency should u/s.27 of Evidence Act, 1872 record only that part of the statementwhich leads to the discovery of fact – The practice of putting theconfession of the accused made to the police officer which isEotherwise hit by the principles of Evidence Act must immediately bestopped as such kind of statements may have a direct tendency toinfluence and prejudice the mind of the Court.

Evidence: Circumstantial Evidence – Legal Position – Thecircumstances on the basis of which the conclusion of guilt is to beFdrawn, must be fully established and the circumstances forming thechain of evidence must be so complete as not to leave any reasonableground for the conclusion consistent with the innocence of theaccused and should rule out every possible hypothesis except theone to be proved by the prosecution.

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Media Trial: Consequences and Limitations – All mattersrelating to the crime and whether a particular thing happens to bea conclusive piece of evidence must be dealt with by a Court of Lawand not through a TV channel – If at all there was a voluntarystatement, the matter would be dealt with by the Court of Law – TheHpublic platform is not a place for such debate or proof of what otherwise is the exclusive domain and function of Courts of law –Any such debate or discussion touching upon matters which are inthe domain of Courts would amount to direct interference inadministration of criminal justice.

Criminal law: Approach of Court in considering theinvolvement of accused in other crime – Distinction, during bailand trial proceedings – Approach at different stages including thestage of considering the bail application are qualitatively different– At the stage of consideration of bail, the primary concern is toweigh in balance the liberty of an accused and the possible prejudicethat may get visited upon the societal interest in case he is releasedand therefore it would be apt and proper to consider his involvementin other crimes – But at the stage of final assessment whetherconviction be recorded or not, the matter must be considered purelyon its merits unless the very membership of a gang or a group or anoutfit itself can amount to an offence or as an aggravated form ofan offence – At the stage of sentencing, his involvement in othercrimes may be a relevant factor provided the concerned material inthe form of concluded judgments in the other matters are broughton record in a manner known to law – The established involvementin other matters would then certainly be relevant while dealing withthe question whether the concerned accused is required to be dealtwith sternly or leniently.

Allowing the appeals, the Court

Conclusion

Allowing the appeals, the Court

HELD: 1. It was observed by the Privy Council in PulukuriKotayya and Ors. v. King-Emperor the words - “with which Istabbed A” were inadmissible since they did not relate to thediscovery of knife in the house of the informant. Applying thislogic, only that part of the statement which leads to the discoveryof certain facts alone could be marked in evidence and not theentirely of the statement. Coming to the instant case and goingby the principle and the illustration highlighted by the PrivyCouncil the expression “where we committed murder” must notcome on record. Similarly, all the earlier facts narrated in thestatement about past history which are in the nature of self-implication, would be inadmissible as amounting to a confessionmade to a Police Officer. All the statements must be readaccordingly. [Para 18][579-C-F]

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A2. It must be observed that there is a tendency on part ofthe Prosecuting Agency in getting the entire statement recordedrather than only that part of the statement which leads to thediscovery of facts. In the process, a confession of an accusedwhich is otherwise hit by the principles of Evidence Act finds itsplace on record. Such kind of statements may have a directBtendency to influence and prejudice the mind of the Court. Thispractice must immediately be stopped. In the present case, theTrial Court not only extracted the entire statements but also reliedupon them. The other disturbing feature that may be noticed isthat voluntary statements of the appellants were recorded on aCDVD which was played in Court and formed the basis of thejudgment of the Trial Court. Such a statement is again in thenature of a confession to a Police Officer and is completely hit bythe principles of Evidence Act. If at all the accused were desirousof making confessions, the Investigating Machinery could havefacilitated recording of confession by producing them before aDMagistrate for appropriate action in terms of Section 164 of theCode. Any departure from that course is not acceptable and cannotbe recognized and taken on record as evidence. The Trial Courterred in exhibiting those DVD statement. As a matter of fact, itwent further in relying upon them while concluding the matter onEthe issue of conviction. [Paras 19 and 20][579-F-H; 580-A-C]

3. What has further aggravated the situation is the fact thatsaid statements on DVD recorded by the Investigating Agencywere played and published in a program named “Putta Mutta” byUdaya TV. Allowing said DVD to go into the hands of a privateFTV channel so that it could be played and published in a programis nothing 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 matterGwould 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 of H

Courts would amount to direct interference in administration ofCriminal Justice. [Para 21][580-D-F]

4. The approach at certain stages including the stage ofconsidering the bail application may be qualitatively different. Atthe stage of consideration of bail, the primary concern is to weighin balance the liberty of an accused and the possible prejudicethat may get visited upon the societal interest in case he isreleased. It would therefore be apt and proper to consider hisinvolvement 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 inthe other matters are brought on record in a manner known tolaw. The established involvement in other matters would thencertainly be relevant while dealing with the question whether theconcerned accused is required to be dealt with sternly or leniently.[Para 23][581-B-E]

Sharad Birdhichand Sarda v. State of Maharashtra AIR1984 SC 1622 : [1985] 1 SCR 88; Musheer Khan @Badshah Khan & Anr. State of Madhya Pradesh (2010)2 SCC 748 : [2010] 2 SCR 119 – relied on.

Pulukuri Kotayya and Ors. v. King-Emperor AIR (34)1947 PC 67 – reffered to.

Case Law Reference

[1985] 1 SCR 88relied onPara 25[2010] 2 SCR 119relied onPara 31

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 1476-1477 of 2018.

From the Judgment and Order dated 04.09.2017 of the High Courtof Karnataka at Bangalore in Criminal Appeal No. 799 of 2011 andCriminal Appeal No. 637 of 2012.

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ALakshmeesh S. Kamath, Kaustubh Shukla, Ms. Smriti Ahuja, Ms.Nancy Shamim, Advs. for the appellants.

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

The Judgment of the Court was delivered by BUDAY UMESH LALIT, J.

1. These appeals by special leave filed by original accused Nos.1to 4 are directed against the common judgment and order dated 04[th]September 2017 passed by the High Court[1] in Criminal Reference CaseNo.14 of 2010; and in Criminal Appeal No.799 of 2011 and CriminalCAppeal No.637 of 2012.

2. The appellants along with original accused Nos.5 to 9 weretried by the Trial Court[2] in Sessions Case No.443 of 2001 and SessionsCase No.55 of 2004 for having committed offence punishable underSection 396 of the IPC[3]. Accused No.9 died during the pendency of theDtrial and the proceedings against her stood abated. The Trial Court[2]acquitted original accused Nos.5 to 8 by its judgment dated 17.09.2010but convicted the appellants for having committed offences punishableunder Section 396 read with Section 34 of the IPC[3]. By a subsequentorder of punishment dated 30.09.2010, the Trial Court imposed deathsentence upon all the appellants for the offence committed by them.

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3. This resulted in Criminal Reference Case No.14 of 2010 forconfirmation of death sentence before the High Court. The convictedaccused, namely, the appellants herein also preferred Criminal AppealNos.799 of 2011 and 637 of 2012 in the High Court. By its judgment andorder presently under challenge, the High Court did not find sufficientFreasons to affirm the death sentence. It found that the appellants wereguilty of having committed the offence under Section 394 of the IPC[3]and sentenced them to suffer life imprisonment.

4. The instant proceedings arise out of Crime No.874 of 1999registered pursuant to FIR dated 28.10.1999 lodged with VijayanagarGPolice Station, Bengaluru. The reporting made by one Dr. Prakash Vishnu was:- 1 The High Court of Karnataka at Bengaluru 2 XXXIV Additional City Civil and Sessions Judge (Special Court), Central PrisonPremises, BengaluruH3 The Indian Penal Code, 1860

“I, Dr. Prakash Vishnu, hereby inform that today at about 9.15AM, I left home as usual to attend my work in Bowring Hospital.At that time, my father and mother both were alright. In our houseonly myself, my father and mother are staying. Each one of usare keeping separate key with us. My father is working as anImposer in Indian Express. My mother runs a Novelty Store nearour house.

Today afternoon when I returned home after work, some burntsmell was coming from kitchen. I called my mother 2-3 times.There was no reply. I myself went and opened the door, in kitchen,stove was on. I left it as it is and open the room door, when Iopened room door, I saw my mother lying in blood pool. Pan wasalso lying there, hoping that she is alive, I tried Resuscitation. Buther heart beat was stopped (I did not get pulse). Entire body wasturned bluish. Tongue was stretched out. I was very much shockedand screamed very loudly. Then neighboring people came andgathered there. I humbly request you to kindly trace out the culpritswho have murdered my mother and take suitable action againstthem. Yesterday, my father had night duty and he was back at6.00AM.”

Accordingly, crime under Section 302 of the IPC was registeredagainst unknown persons.

5. During investigation, statements of the mother, sister andhusband of the deceased were recorded, who stated that the deceasednormally used to wear certain gold ornaments which were stolen as partof the transaction. The Inquest Report, later marked as Exh.P-2conducted on the body of the deceased also showed injuries on the ear,presumably caused while taking away the earrings.

6. The post-mortem on the body was conducted by Dr. S.B. Patiland the Post-Mortem Report, later marked as Exh. P-14 indicated thatthe deceased had suffered 13 injuries. According to the medical opinion,injuries 1 to 10 were possible by an iron road while injuries 11-13 wereinflicted by a knife. The external injuries noted in Post-Mortem Reportwere as under: - “1. Lacerated wound over right parietal region 7 cm aboveright ear measuring 3cm x 1cm bone deep;

2. Lacerated wound over right parietal 2.5 cm above injuryNo. (1) measuring 5 cm x 2 cm bone deep.

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3. Lacerated wound over inter parietal region 2 cm to left ofinjury (2) measuring 2 cm x 0.5 cm.

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4. Lacerated wound over left parietal region measuring 5cm x3 cm x skull cavity deep through which brain matter is drainingout. It is situated 10 cm above left ear.

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5. Lacerated wound 4 cm above left ear measuring 10cm x3cm x skull cavity deep situated in the fronto parietal temporal region.

6. Lacerated wound 1cm above left ear in the temporal regionmeasuring 4cm x 1cm x skull cavity deep.

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7. Lacerated wound 4cm behind injury No.5 in left side ofoccipital region measuring 4cm x 1.5.cm x bone deep.

8. Lacerated wound in the mid occipital region measuring 3cm x 1cm x bone deep.

9. Lacerated wound over right parietal-occipital region situated7cm behind and above right ear.

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10. Lacerated wound over left occipital region measuring 1.5cm x 1cm x bone deep.

11. Incised wound over right ear lobule measuring 1cm x 0.5cm x 0.5 cm.

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12. Incised wound over left ear lobule measuring 1cm x 0.5cm x 0.5 cm.

13. Incised wound over palmar aspect of left thumb distalphalanyx measuring 3 cm x 2cm x muscle deep.”

FThe Post-Mortem Report further stated:

“3. On reflection of scalp blood extraverted all over-scalp skull-left frontal bone, left partial bone, left temporal bone, andoccipital bone fractured into multiple pieces and bloodextraverted at fracture site. Bones of middle cranial andposterior cranial fosse fractured into multiple pieces and bloodextraverted at fracture site.

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4. Membrane-lacerated at fracture sites.

5. Brain covered by subdural and subarachnoid hemorrhageall over base and surface and is partially drained out on leftside.”

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7. More than 15 months after the incident, the appellants werearrested on 01.02.2001 by the police in connection with saidcrime. Soon after their arrest, voluntary statements of theappellants were recorded by the Investigating Officer. Thesefour statements marked as Exh. P-21, P-22, P-23 and P-24 inthe trial, as extracted in the judgment of the Trial Court were:

“27.The lst Accused has given his voluntary statement ashereunder:

“Krishnadu and the ladies Lakshmi, Venkata Lakshmi,Padma in the guise of begging food and water to the childrengot open the door of a house at Moodalapalya and wentaway. Immediately all of us rushed inside the house. Mybrother-in-law Venkatesh alias Ramesh was waiting at thedoor of the house. We dragged and took the woman whowas present in the said house and took her inside the house.I caught hold of her closing her mouth, Munikrishna assaultedto the back of her head with the rod he had, Chikkahanumapierced with the knife he had to the ear of said woman, Isnatched one pair of ear rings (vole), gold bangles whichwore on the body of said lady. Munikrishna snatched twochains from her neck, Nallathimma took one ring and onepair of silver leg chain and he handed over the leg chain toLakshmi, who is the wife of Doddahanuma. We have thrownthe iron rod and knife to the fence erected by the side ofdrainage therein. I have sold the ornaments stolen by me toa shop at Raja market. If I am taken there, I will show thespot where we committed murder, and we will show theplace where we have thrown the knife and the rod. Andwe will show the shop in which we sold the jewelleries andget the said articles”, and accordingly he got the said articlesthrough the Mahazar at Ex.P-21.

28. The. 2nd accused has given his voluntary statement ashereunder:

“Krishnadu and the ladies Lakshmi, Venkata Lakshmi,Padma in the guise of begging food and water to the childrengot open the door of a house at Moodalapalya and wentaway. Immediately all of us rushed inside the house. My ABC

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brother-in-law Venkatesh alias Ramesh was waiting at thedoor of the house. We dragged and took the woman whowas present in the said house and took her inside the house.My elder brother caught hold of her closing her mouth, andI assaulted to the back of her head with the rod I had,Chikkahanuma pierced with the knife he had to the ear ofsaid woman, my elder brother snatched one-pair of ear rings(vole), gold bangles which wore on the body of said lady,‘and I snatched two chains from her neck, Nallathimmatook one ring and one pair of silver leg chain and he handedover the leg chain to Lakshmi, who is the wife ofDoddahanuma. We have thrown the iron rod and knife tothe fence erected by the side of drainage therein. I havesold the ornaments stolen by me to a shop at Raja market.If I am taken there, I will show the spot where wecommitted murder, and we will show the place where wehave thrown the knife and the rod. And we will show theshop in which we sold the jewelleries and get the saidarticles”, and accordingly he got the said articles throughthe Mahazar at Ex.P-22.”

29. The 3rd accused has given his voluntary statement ashereunder:

“Krishnadu and the ladies Lakshmi, Venkata Lakshmi,Padma in the guise of begging food and water to the childrengot open the door of a house at Moodalapalya and wentaway. Immediately all of us rushed inside the house.Venkatesh alias Ramesh was waiting near the door of thehouse. We dragged and took the woman who was presentin the said house and took her inside the house. I caughthold of her closing her mouth, Munikrishna assaulted to theback of her head with the rod he had, Chikkahanumapierced with the knife he had to the ear of said woman,Venkatesh alias Chandra snatched one pair of ear rings(vole), gold bangles which wore on the body of said lady.Munikrishna snatched two chains from her neck, and I tookone ring and one pair of silver leg chain and handed overthe leg chain to Lakshmi, who is the wife of Doddahanuma.We have thrown the iron rod and knife to the fence erected by the side of drainage therein. I have sold the ornamentsstolen by me to a shop. at Raja market. If I am taken there,I will show the spot where we committed murder, and wewill show the place where we have thrown the knife andthe rod. And we will show the shop in which we sold thejewelleries and get the said articles”, and accordingly hegot the said articles through the Mahazar at Ex.P-23.

30. The 4th accused has given her voluntary statement ashereunder:

“Myself, Padma, Venkatalakshmi and Krishnadu cameidentifying a house. One day in the guise of requesting forwater got open the door, immediately the male personsVenkatesh, Munikrishna, Nallathimma, Venkatesh aliasRamesh, Krishnadu rushed inside the house, we left saidplace. Thereafter the male persons returned and informedus that we assaulted and murdered a lady in the said houseand snatched away the jewelleries wore by the said ladyon her body, and Nallathimma gave one pair of silver legchain which was brought from the said house. Further, healso paid the amount for my expenditure. I wear the legchain given to me, she stated that if she is taken there shewill show the house which identified by her and shown tothe male persons. I have produced before you the silver legchain given to me by Nallathimma” and she handed overthe same through Mahazar at Ex.P.24"”

8. On 6.2.2001, Voluntary Statements of the appellants wererecorded by the Investigating Officer on a DVD, later marked as Exh.P-25 to P-28 in the trial. The discussion with regard to said DVD by theTrial Court is in paragraph 35 of its judgment. It appears that what wasrecorded on said DVD was played and published in a program named“Sutta Mutta” by Udaya TV.

9. It must be stated that according to the prosecution, a gold ringand a pair of silver anklets were recovered from the person of accusedNo.4- Lakshmamma alias Lakshmi at the time of her arrest. More thanseven days after the recording of their voluntary statements, i.e. on07.02.2001 and 08.02.2001, three of the appellants allegedly led theInvestigating team to a jewellery shop named Sathyanarayana Jewellery

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AMart owned by one D.Janardhana Shetty, as a result of which, followingjewellery items were recovered:- On 07.02.2001

10. On 09.02.2001, accused No.2 Munikrishna allegedly led theDInvestigating Team to an open space near a drainage which resulted inrecovery of an iron rod and a knife (which were marked as MO-16 andMO-17 in the trial) in the presence of a panch witness, named Manjunathaexamined as PW-12 in the trial. The relevant portion with regard to suchrecovery dealt with by the Trial Court was as under:- E“36. In order to prove regarding seizure of articles utilized forcommission of offence, the prosecution has examined oneManjunatha as PW-12 in the above case as the witness who waspresent at the time of seizure of the iron rod and knife said tohave been utilized by the accused for committing offence and asFthe person who has signed the Mahazar at the time of seizure. Onobserving the said evidence the 2nd accused has taken out theM.O.16 and 17 the iron rod and knife from the ditch situated bythe side of an open space near the drainage in the 5th CrossShanthaveri Gopala Gowda Nagar, Moodalapalya and the samewas seized by the police, and at that time have also conductedGMahazar as per Ex.P-11. He identified the Ex.P-11 (A) as hissignature, and stated that M.O.16 and 17 are the weapons takenout by the Accused Munikrishna.

11. MO-16 and MO-17 were sent for chemical examination andboth the articles were found to be stained with human blood. However,Hin terms of the FSL Report, later marked as Exh. P-10, blood group could not be determined and the tests were inconclusive. The recoveredgold ornaments were not subjected to any Test Identification Parade butwere stated to have been identified by the relations of the deceased inpolice station.

12. After completion of investigation, the accused were sent upfor trial and tried by the Trial Court in Sessions Case No.443 of 2001and 55 of 2004. In support of its case, the prosecution relied upon testimonyof 24 witnesses and it marked 29 documents, namely, Exh. P-1 to P-39and produced material objects MO-1 to MO-17. The gist of the testimonyof the witnesses was: - A.PW-1, Shri Vishnu, husband of the deceased deposed thatafter he had returned home, he found the deceased lying ina pool of blood and in the same night he came to know thatgold mangalya chain, gold necklace, three gold bangles, aring, pair of silver anklets etc. which the deceased used towear were missing.

B.PW-2, Sharadamani, sister of the deceased did not supportthe case of the prosecution that she had gone to the policestation and identified the gold ornaments. She was declaredhostile.

C.PW-3, PW-7 and PW-22 were panch witnesses to InquestReport Exh.P-2 while PW-4, R. Mohan Kumar was panchwitness to Spot Mahzar Exh. P-3. PW-5, Babu was panchwitness to the search and seizure of the gold ring and thepair of silver anklets recovered from the person of accusedNo.4 at the time of her arrest. PW-6, Rudra Prasad wasthe panch witness to Mazhar Exh.P-6 in terms of whichaccused nos.1 to 4 had led the investigating team to thehouse of the deceased where the murder was allegedlycommitted.

D.PW-10, Suresh Gaonkar, Director, Forensic Laboratory,Kalaburagi deposed that he had examined MO-16 iron rodand MO-17 knife and had found the same to be stainedwith human blood and that he had given opinion as per Exh.P-10.

E.PW-11 and PW-13 were panch witness to the seizure ofornaments at the instance of accused nos.1, 2 and 3, while A

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568SUPREME COURT REPORTS

PW-12 Manjunath was the panch witness to the recoveryof MO-16 iron rod and MO-17 knife.

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F.PW-14, K.H. Manjunath, Professor, Forensic Medicine,Victoria Hospital, Bengaluru was examined to prove thesignature of the author of Exh. P-14 Post-Mortem Reportas Dr. S. D. Patil who conducted the post-mortemexamination was no more.

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G.PW-18, Smt. Jayamma, mother of the deceased also failedto identify the ornaments stated to be belonging to thedeceased and produced by the prosecution.

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H.PW-23, D. Janardhan Shetty, receiver of gold ornamentsfrom accused no.1 to 4 deposed about the recoverieseffected on 7[th] and 8[th] of February 2001, as tabulated inparagraph 9 above.

I.PW-24, N. Chalapathi, Deputy Superintendent of Police,Dthe Investigating Officer deposed about the steps takenduring investigation including the recording of voluntarystatements of the appellants Exh. P-21 to P-24. He furtherstated that on the evening of 06.02.2001, he had got thestatements of the appellants recorded through video-Erecording on DVDs, marked as Exh. P-25 to P-28. He alsoproduced a chart Exh.P-29 giving details about the casespending against the gang of which the appellants werealleged to be members. However, no documents either inthe form of chargesheets, depositions or orders wereproduced. Even no question regarding Chart Exh.P-29 wasFput to the appellants in their examination under Section 313of the Code.

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13. The Trial Court accepted the case of the prosecution againstthe appellants i.e. accused Nos.1 to 4 relying inter alia on the voluntarystatements Exh. P-21, P-22, P-23 and P-24 and the DVD Exh. P-25 toGP-28. The relevant discussion on the point was:- “31. On noticing all these factors, it is pertinent to note that if at allthe accused No.1, 2 and 3 had not sold either M.O.-6 To 10 orother articles to PW-23, why the PW-23 was giving statementbefore the Court that the accused had sold the said articles to theHhim. If at all he wanted to give false evidence or he wanted to

give evidence with an intention to harass the accused, then thereshould be hatredness, jealousy and ill-will against them. However,the defense Advocate has not made any such suggestion of hatred,jealousy or ill-will against the accused or any proof in that regard.Further, on observing the statement made by him that the PW-1has identified that the said article belonged to his wife, and thatthe PW-23 has stated that the accused No.1, 2 and 3 have soldthe said article to him, and then on their request he has returnedthe same, and that the PW-11 was present at that time, and thatthe PW-12 Rangaswamy was present while he got seized thesaid article, and similarly, according to the voluntary statement ofEx.P-24 the 4th accused Lakshmamma out of the jewellerssmuggled having wore one pair of a ring (vole) and one pair of legchain and a saree, she has handed over the said articles to thepolice. She admitted these factors in her voluntary statement.Further, the said articles are got seized before the witness PW-5Babu through Mahazar at Ex.P-5 conducted in that regard. Thesaid Babu also clarified this fact in his evidence stating that thepolice through a Woman Constable in their station madearrangement for her to wear another saree, and out of the articlesstolen by her got seized the saree, ear ring (vole) and leg chain,and M.O.5 is the leg chain pertaining to this case. The accusedLakshmi has stated that her Associate Nallathimma stolen andhanded over the said articles to her, and she identified the Ex.P-5(a) as her signature. During her cross-examination she has statedthat on that day the Inspector Chalapathi had called her to theStation, showing the accused in the station stated that she hascommitted robbery, some articles were kept on the table and onseeing them she stated that he has conducted Mahazar and furtherstated that during her re-examination the M.O.5 and other articleswere seized from the accused Lakhsmi only.

32. The accused have not clarified in any manner before the Courtas to how the said articles came to their possession and they havenot proved that the said articles belong to them, and the statementand voluntary statement made regarding the articles kept andhanded over is just and proper according to Section 27 of EvidenceAct and the Court has to perform the same.

33. Furthermore, Lakshmamma Venkatesh alias Chandra,Munikrishna, Doddahanuma (Chinnappa and Doddahanuma who A

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said to be not the accused in this case) having given their voluntarystatement in the D.V.D. at Ex.P-25, wherein they have narratedabout this offence.

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34. In 313 Statement to the accused Doddahanuma, Munikrishna,Venkatesh alias Chandra, Deceased Chinnappa and Lakshmannahaving given their voluntary statement to Question No.26 and thesame has been recorded in the C.D. and D.V.D. When it is statedthat it will be shown and it should be seen, Munikrishna, Venkateshalias Chandra, Lakshmamma have replied that they will not seeit, and they will not tell anything in that regard, and the said replyhas been recorded.

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35. On noticing the said D.V.D. (Ex.P-25), the accused Nos.l, 2and 4 had given voluntary statements, and the persons found thereinare the accused No.1, 2 and 4 before this Hon’ble Court, and onobserving the statement given by them, they are the persons whohave given their statement naturally without subjecting any pressureDor threat in the natural manner. On observing their appearancewhile recording the same, they did not have the situation of anytension or shock, It will make the statement which is given naturally.If at all they had not given any statement or if the said statementwas obtained and recorded by the police forcibly by duress, theyEcould have stated the same in their Section 313 Statement. But,without giving any such reply, they even do not like to watch theD.V.D. and the C.D. containing of the photographs of the personssubjected to incident and also the D.V.D. of Sutta Mutta Programparticipated by the accused. On noticing the statement given bythem that they do not like to say anything in that regard, it revealsFthat if at all if they had seen it they ought have identified themselvesand they should have given some reply regarding the facts of thestatement given by them. But, they have stated that they will notsee the C.D. and also the D.V.D. and that they will not give anyreply, the intention behind it will be non-admitting the true facts.”

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14. The Trial Court finally concluded:

“52. On the basis of voluntary statements given by the accusedNo.1 to 3, the 4th accused Lakshmamma has stated that she alongwith others in the guise of requesting of water went to theresidential house of the deceased and got open the door of the H

house, and then the accused rushed inside the house and committedher murder, and though she has not directly participated to thecommission of murder, according to her, she and her group…….Therefore, I answer the issues No.1 to 4 in the affirmative andcame to the conclusion that through circumstantial evidence theprosecution has proved that the accused No.1, 2 and 3 made attackagainst her and murdered her, and also stolen the gold and silverornaments which she had wore on her body. This Court havingbeen constituted for conducting trial and deciding the heinousoffence committed by Dhadupalya gang, and the Inspector calledChalapati got arrest of the accused in all the cases which areregistered for trial and having recovered from them the stolenarticles, and also even the place of occurrence shown by theaccused conducted mahazar, and thus played a main role in theinvestigation. Subsequently, he transferred the cases to theconcerned jurisdictional police stations. Though there may be somedefects in all these cases, several Investigating Officers havingtaken up investigation for the reason of their transfer or for anyother reason, and though might have caused some defects in thesaid circumstances, the Police Inspector Sri. Chalapathi and histeam by arresting the accused and their gang and subjected to theactions of the Court, and this Court will appreciate the actionstaken by him.”

15. While considering the matter at the stage of sentencing, theTrial Court in its order dated 30.09.2010 observed: -

“15. The prosecution through the Investigating Officer Chalapathiwho traced the accused for the first time submitted a detailedstatistical report that what kind of offence committed by the personsof Dandupalya Group. Further, the statistical report reveals thatMunikrishna alias Venkataswamy the accused in this case hastotally participated in 54 different cases within the limits of variouspolice stations of Karnataka State and out of them he participatedin 28 dacoit and murder cases, and out of them he committed 50murder offence, and that the accused Venkatesh alias Chandrahas participated in 45 different cases, and out of them heparticipated in 28 dacoit and murder cases, and that the accusedNallathimma participated in 28 dacoit and murder cases and thatthe accused Lakshmamma participated in 18 murder cases.

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16. In view of the above facts the prosecution has argued to imposethe punishment of death imprisonment to the accused, and theoffence committed by the accused being extremely heinousoffence, it is also prayed impose death imprisonment consideringthe offence as most rarest of rare cases.

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18. According to the statistical report furnished before the Courttotally 111 cases are registered. The accused are released in mostof the cases among them. In some of the cases as statedcommencing from life imprisonment other punishments alsoCimposed against them which they are suffering. Further, onobserving all these cases, the modus operandi of the accused isthat the accused are doing the profession of taking assistance ofwomen in their group, through them got marked the houses (thehouses in which weak persons, aged persons and woman arestaying) and got themselves introduced in the guise of requestingDfor water and food, and in the same guise they will got open thedoor of the house, the male persons of the gang will trespass intothe house and assault the ladies, aged persons and weak personswith the iron rod, cut the neck from the knife, tying the necktightly from the thread kill them holding their breath, take awayEthe gold ornaments and other ornaments from their body and fromtheir house, sell them and lead their life from doing so. Since theyear 1991 to 2000 the same gang have committed the said act inall the parts of Karnataka and also in Kerala State, and accordingto the statistical report furnished they have totally committed 74murders, out of them being 34 men and 40 women and they areFmurdered in different ways. That too, it states that 23 men and 21women are murdered in Bangalore City only. The defense counselhave not questioned the same.”

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16. Criminal Reference Case No.14 of 2010 and Criminal AppealNos.799 of 2011 and 637 of 2012 arising from the decision of the TrialGCourt were dealt with by the judgment and order presently underchallenge, as stated above. Some of the relevant paragraphs of thedecision were: - “12. Further, the Trial Court having noted the offence provedagainst accused Nos.1 to 4 was not only heinous, but accused H

Nos.1 to 4 committed the said offence with utter brutality andthat they were facing trial before various courts in as many as 111cases involving similar charges and the appellants/ accused havingbeen convicted in some of the cases, the Trial Court found it properto award death sentence on all the four accused persons.

31. From the material on record, it is evident that there are noeyewitnesses to the incident. The case of the prosecution is restedentirely on circumstantial evidence. These circumstances reliedon by the prosecution are:- The factum of the murder and the simultaneous missing ofgold and silver ornaments from the person of the deceased.

Recovery of the missing ornaments belonging to the deceasedat the instance of the appellants/ accused Nos.1 to 4.

Recovery of weapons viz. iron rod – M.O.16 and knife M.O.17 near the spot of occurrence at the instance of the appellants/accused Nos.1 to 4.

The conduct of the appellants/ accused Nos.1 to 4 in pointingout the place of occurrence.

54. Apropos the contention of the learned counsel that the contentsof Ex.P6 and the evidence of PW-6 do not have the effect ofincriminating the accused, as the spot of occurrence was knownto the Investigating officer much prior to the arrest of accusedNo.1 is concerned, suffice it to note that there is nothing in theentire evidence to suggest that accused Nos.1 to 4 derivedknowledge of the spot of occurrence through the Investigatingofficer or through any other mode. There is no explanation by theaccused that they came to know of the spot of occurrence throughthe Investigating Officer or through any other witnesses. On theother hand, the evidence of PW.6 coupled with the contents ofEx.P6 clearly establish that accused Nos.1 to 4 by themselvesshowed the place of occurrence to the police and the panchwitnesses, as a result, this evidence is rendered relevant undersection 8 of the Evidence Act thereby establishing yet anothercircumstance in proof of the complicity of accused Nos.1 to 4 inthe offence charged against them.

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66. Thus, it is clear that simultaneous or identical disclosures arenot an anathema to Section 27 of the Evidence Act. In the instantcase, the evidence produced by the prosecution clearly goes toshow that all the four accused persons made similar disclosuresrelating to the hiding of the weapons, knowledge of the spot of theoffence and the sale or ornaments belonging to the deceased. It isproved that the information given by the accused has led to thediscovery of facts which clearly establish the nexus betweenaccused Nos.1 to 4 and the crime in question.

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70. ………We have discussed at length the evidence of PW-1and other witnesses who have unequivocally stated before theCCourt that during the murder of the deceased, the gold ornamentsworn by her were found missing. It is also proved by theprosecution that the very same articles were recovered from thepossession of the accused. The accused did not furnish anyexplanation for the possession of the said ornaments belonging toDthe deceased. Coupled with the above circumstances, the recoveryof the weapons clinchingly establish that the injuries found on thedeceased were caused with M.Os. 16 and 17. Added to that,knowledge and conduct of the accused in pointing out to the placeof occurrence completes the chain of circumstances establishingthe complicity of accused Nos.1 to 4 in the act of robbery andEmurder of the deceased. The prosecution therefore hasconclusively proved all the above circumstances which in ouropinion lead to the guilt of accused Nos.1 to 4 beyond all reasonabledoubt. The decisions relied on by the learned counsel for theappellants-accused are therefore distinguishable on the facts ofFthe present case.

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71. In the case in hand, the accused were charged under Section396 read with Section 34 of IPC. The Trial Court has held that thefacts proved against the accused constitute the offence underSection 396 of the IPC. This finding in our opinion is contrary tothe provisions of section 396 of IPC. As per section 396 of IndianPenal Code, in order to constitute the offence of dacoity withmurder, any one of the five or more persons should commit murderwhile committing the dacoity. Therefore, participation of five ormore persons is a sine qua non to maintain the charge underSection 396 of IPC. In the instant case, none of the witnesses G

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have spoken about the presence or participation of five or morepersons either in the act of murder or in the commission of robbery.Even though charges were framed against accused Nos.1 to 5, 6to 9 under Section 396 of the IPC, the Trial Court has acquittedaccused Nos.6, 7 and 8 on the ground that there is no evidence toprove the ingredients of the offence against these accused Nos.6,7 and 8. The Trial Court has not recorded any finding to the effectthat in addition to accused Nos.1 to 4, other accused alsoparticipated in the commission of the crime in question. Thecircumstances proved by the prosecution, as discussed above,establish the involvement of only accused Nos.1 to 4. Therefore,the conviction recorded against accused Nos.1 to 4 under section396 of the IPC and the consequent death sentence awarded againstthem cannot be sustained. Hence, the conviction of accused Nos.1to 4 under section 396 r/w. 34 of Indian Penal Code and the deathsentence imposed against them deserves to be set aside.

73. Under Section 394 of Indian Penal Code, not only the personwho actually causes hurt, but his associates also would be equallyliable to the act by fiction of Law. The expression “if any person,in committing or in attempting to commit robbery, voluntarily causeshurt, such person, and any other persons jointly concerned incommitting or attempting to commit such robbery, shall bepunished” brings within its purview all other accused involved inthe robbery. As the prosecution has established beyond reasonabledoubt that accused Nos.1 to 4 have committed robbery of theornaments of the deceased and in committing robbery have alsocaused her death, we are of the view that accused Nos.1 to 4 areguilty for the offence punishable under Section 394 of IPC, accusedNos.1 to 4 are therefore liable for conviction under section 394read with Section 34 of Indian Penal Code.

74. We have also heard the learned counsel for the accused andthe learned SPP on the sentence. The learned counsel for theappellants/ accused Nos.1 to 4 plead that the accused have alreadyundergone custody for more than 16 years from the date of theirarrest and at the time of arrest, all the accused were of young ageand therefore having regard to the above circumstances, in theinterest of justice, the period of custody already undergone bythem be set off towards the imprisonment to be awarded for the AB

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SUPREME COURT REPORTS

offence under section 394 read with Section 34 of Indian PenalCode.

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75. We have considered the submissions. We do not find anygood reason to take a lenient view in the matter. The material onrecord indicate that the accused have committed a ghastly andBgruesome murder in a highly depraved manner. The facts provedin evidence go to show that the accused murdered an innocentaged lady only to rob her valuables. It is a clear case of murderfor gain. The manner in which the accused have inflicted injurieson the victim indicate the pervert and diabolical tendencies of theaccused. That apart, the prosecution has furnished statistics WhichCgo to show that the accused were involved in similar offences forwhich they have been either convicted or are serving sentences.Therefore, we do not find any reason to show leniency to theappellants. On the other hand, having regard to the facts andcircumstances of this case, we are of the opinion that the ends ofDjustice would require that maximum punishment prescribed undersection 394 Indian Penal Code is awarded to the accused, as thefact situation of this case requires that the sentence awarded tothe accused should serve as a deterrent. It is also noticed thatseveral cases are pending against the accused before this Courtwherein it is alleged that the accused have been attacking helplessElonely womenfolk and have been committing ghastly murders byinflicting injuries inhumanly without showing any mercywhatsoever to the victims. Hence, we are of the view, that theaccused do not deserve any sympathy at the hands of this Court.For all these reasons, maximum punishment prescribed underFSection 394 Indian Penal Code deserves to be awarded on theappellants/ accused No.1 to 4. Hence the following order:

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ORDER

1. Criminal Appeal Nos.799 of 2011 and 637 of 2012 are allowedin-part.

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2. The conviction of accused Nos.1 to 4 under Section 396 ofIndian Penal Code and the consequent imposition of deathsentence passed by XXXIV Addl. City Civil & Sessions Judge(Special Court), Central Prison, Parappana Agrahara, Bengaluruin S.C.No.443 of 2001 and S.C.No.55 of 2004 is set aside.

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3. The accused Nos.1 to 4 are held guilty of the lesser offencepunishable under Section 394 read with Section 34 of Indian PenalCode and are accordingly convicted for the said offence. Theaccused Nos.1 to 4 are sentenced to undergo rigorousimprisonment for life and a fine of Rs.25,000/- each for the offenceunder section 394 read with Section 34 Indian Penal Code.

4. Accused Nos.1 to 4 are entitled for the benefit of set off asprovided under Section 428 of Code of Criminal Procedure subjectto the provision contained in Section 433-A and provided that ordershave been passed by the appropriate authority under Section 432or Section 433 of the Code of Criminal Procedure.

5. Criminal Referred Case No.14 of 2010 stands rejected in termsof the above order.”

17. In this appeal, we have heard Mr. Lakshmeesh S. Kamath,learned Advocate for the appellants and Mr. Nikhil Goel, learnedAdditional Advocate General for the State.

18. Before we consider the merits of the matter, some of thefeatures of the present case which we have found to be quite disturbingmust be noted and deliberated upon. The Trial Court in paragraphs 27 to30 of its judgment extracted voluntary statements of the appellants. Firstand foremost, going by the parameters of Section 27 of the EvidenceAct[4] only so much of information which relates distinctly to the factsthereby discovered can be stated to have been proved. The extent andambit of said provision as well as applicability thereof were consideredby the Privy Council in Pulukuri Kotayya and Ors. v. King-Emperor[5]as under:

“10. Section 27, which is not artistically worded, provides anexception to the prohibition imposed by the preceding section, andenables certain statements made by a person in police custody tobe proved. The condition necessary to bring the section intooperation is that discovery of a fact in consequence of informationreceived from a person accused of any offence in the custody ofa Police officer must be deposed to, and thereupon so much ofthe information as relates distinctly to the fact thereby discovered 4 The Indian Evidence Act, 1872.

5 AIR (34) 1947 PC 67.

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may be proved. The section seems to be based on the view that ifa fact is actually discovered in consequence of information given,some guarantee is afforded thereby that the information was true,and accordingly can be safely allowed to be given in evidence;but clearly the extent of the information admissible must dependon the exact nature of the fact discovered to which suchinformation is required to relate.

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Normally the section is brought into operation when a person inpolice custody produces from some place of concealment someobject, such as a dead body, a weapon, or ornaments, said to beconnected with the crime of which the informant is accused. Mr.CMegaw, for the Crown, has argued that in such a case the “factdiscovered” is the physical object produced, and that anyinformation which relates distinctly to that object can be proved.Upon this view information given by a person that the bodyproduced is that of a person murdered by him, that the weaponDproduced is the one used by him in the commission of a murder, orthat the ornaments produced were stolen in a dacoity would all beadmissible. If this be the effect of section 27, little substance wouldremain in the ban imposed by the two preceding sections onconfessions made to the police, or by persons in police custody.That ban was presumably inspired by the fear of the LegislatureEthat a person under police influence might be induced to confessby the exercise of undue pressure. But if all that is required to liftthe ban be the inclusion in the confession of information relatingto an object subsequently produced, it seems reasonable to supposethat the persuasive powers of the police will prove equal to theFoccasion, and that in practice the ban will lose its effect. On normalprinciples of construction their Lordships think that the proviso tos. 26, added by s. 27, should not be held to nullify the substance ofthe section. In their Lordships view it is fallacious to treat the“fact discovered” within the section as equivalent to the objectproduced; the fact discovered embraces the place from whichGthe object is produced and the knowledge of the accused as to-this, and the information given must relatedistinctly to this fact.Information as to past user, or the past history, of the objectproduced is not related to its discovery in the setting in which it isdiscovered.Information supplied by a person in custody that “IHwill produce a knife concealed in the roof of my house” does not VENKATESH @ CHANDRA & ANR. ETC. v. STATE OF KARNATAKA

[UDAY UMESH LALIT, J.]

lead to the discovery of a knife; knives were discovered manyyears ago. It leads to the discovery of the fact that a knife isconcealed in the house of the informant to his knowledge, and ifthe knife is proved to have been used in the commission of theoffence, the fact discovered is very relevant. But if to the statementthe words be added “with which I stabbed A” these words areinadmissible since they do not relate to the discovery of the knifein the house of the informant.”

(Emphasis added)

As was observed by the Privy Council the words - “with which Istabbed A” were inadmissible since they did not relate to the discoveryof knife in the house of the informant. Applying this logic, only that partof the statement which leads to the discovery of certain facts alonecould be marked in evidence and not the entirely of the statement. Comingto the instant case and going by the principle and the illustration highlightedby the Privy Council, out of the statement of accused No.1, only thefollowing portion except the words printed in “italics” would be admissibleand can be marked in evidence:

“…..If I am taken there, I will show the spot where we committedmurder, and we will show the place where we have thrown theknife and the rod. And we will show the shop in which we soldthe jewelleries.”

The expression “where we committed murder” must not comeon record. Similarly, all the earlier facts narrated in the statement aboutpast history which are in the nature of self-implication, would beinadmissible as amounting to a confession made to a Police Officer. Allthe statements namely, Exhs. P-21 to P-24 must be read accordingly.

19. We must observe that we have repeatedly found a tendencyon part of the Prosecuting Agency in getting the entire statement recordedrather than only that part of the statement which leads to the discoveryof facts. In the process, a confession of an accused which is otherwisehit by the principles of Evidence Act finds its place on record. Such kindof statements may have a direct tendency to influence and prejudice themind of the Court. This practice must immediately be stopped. In thepresent case, the Trial Court not only extracted the entire statements butalso relied upon them.

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A20. The other disturbing feature that we have noticed is thatvoluntary statements of the appellants were recorded on a DVD whichwas played in Court and formed the basis of the judgment of the TrialCourt as is noticeable from paragraph Nos.34 and 35 of its judgment.Such a statement is again in the nature of a confession to a Police Officerand is completely hit by the principles of Evidence Act. If at all theBaccused were desirous of making confessions, the InvestigatingMachinery could have facilitated recording of confession by producingthem before a Magistrate for appropriate action in terms of Section 164of the Code. Any departure from that course is not acceptable and cannotbe recognized and taken on record as evidence. The Trial Court erred inCexhibiting those DVD statement Exh.P-25 to 28. As a matter of fact, itwent further in relying upon them while concluding the matter on theissue of conviction.

21. What has further aggravated the situation is the fact that saidstatements on DVD recorded by the Investigating Agency were playedDand published in a program named “Putta Mutta” by Udaya TV. Allowingsaid DVD to go into the hands of a private TV channel so that it couldbe played and published in a program is nothing but dereliction of dutyand direct interference in the administration of Justice. All matters relatingto the crime and whether a particular thing happens to be a conclusiveEpiece of evidence must be dealt with by a Court of Law and not througha TV channel. If at all there was a voluntary statement, the matterwould be dealt with by the Court of Law. The public platform is not aplace for such debate or proof of what otherwise is the exclusive domainand function of Courts of law. Any such debate or discussion touchingupon matters which are in the domain of Courts would amount to directFinterference in administration of Criminal 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 the appellantsallegedly belonged. Apart from exhibiting the chart, no details ordocuments either in the form of chargesheet or orders, depositionsGwere produced on record. If the Prosecution wanted the Court to takenote of the fact that there were other matters in which accused wereinvolved, the concerned Chargesheets should have been produced onrecord along with sufficient details including the judgments or ordersof conviction. A mere chart cannot be taken as proof of the involvement H

of the accused in other crimes either at the stage of conviction orsentence. But that factor seriously weighed with the Trial Court as isobvious from paragraphs 15 to 18 of the order of sentence. In fact,such involvement was taken to be one of the reasons why the deathsentence was awarded by the Trial Court. Such a practice can neverbe approved.

23. We must clarify that the approach at certain stages includingthe stage of considering the bail application may be qualitatively different.At the stage of consideration of bail, the primary concern is to weigh inbalance the liberty of an accused and the possible prejudice that may getvisited upon the societal interest in case he is released. It would thereforebe apt and proper to consider his involvement in other crimes. But at thestage of final assessment whether conviction be recorded or not, thematter must be considered purely on its merits unless the verymembership of a gang or a group or an outfit itself can amount to anoffence or as an aggravated form of an offence. Again, at the stage ofsentencing, his involvement in other crimes may be a relevant factorprovided the concerned material in the form of concluded judgments inthe other matters are brought on record in a manner known to law. Theestablished involvement in other matters would then certainly be relevantwhile dealing with the question whether the concerned accused is requiredto 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 were saidto be involved in one more crime which has given rise to Special LeavePetition (Crl) Diary No.24079 of 2020 and was listed along with theinstant appeal before us. That matter is still pending consideration beforeus. Therefore, what weighed with the Trial Court was the allegedinvolvement of the other members of the alleged gang in so many similaractivities, in support of which there was no concrete material, other thanthe confessions of the appellants.

25. Coming to the merits, the present case is based oncircumstantial evidence and as observed by the High Court in Paragraph31 of its judgment, four circumstances were relied upon to bring homethe case against the appellants. Before we deal with the material insupport of and connected to said four circumstances, the principlesconcerning circumstantial evidence cases must be stated for facility. Afternoting various decisions, following principles were noted in the decision of

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Athis Court in Sharad Birdhichand Sarda v. State of Maharashtra[6],whichprinciples have since then been followed consistently:

“151. Before discussing the cases relied upon by the High Courtwe would like to cite a few decisions on the nature, character andessential proof required in a criminal case which rests oncircumstantial evidence alone. The most fundamental and basicdecision of this Court is Hanumant v. State of MadhyaPradesh [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ129] . This case has been uniformly followed and applied by thisCourt in a large number of later decisions up-to-date, for instance,the cases of Tufail (Alias) Simmi v. State of UttarPradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55]and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 :AIR 1972 SC 656] . It may be useful to extract what Mahajan,J. has laid down in Hanumant case [AIR 1952 SC 343 : 1952SCR 1091 : 1953 Cri LJ 129] :

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“It is well to remember that in cases where the evidence isof a circumstantial nature, the circumstances from which theconclusion of guilt is to be drawn should in the first instance befully established, and all the facts so established should beconsistent only with the hypothesis of the guilt of the accused.EAgain, the circumstances should be of a conclusive nature andtendency and they should be such as to exclude everyhypothesis but the one proposed to be proved. In other words,there must be a chain of evidence so far complete as not toleave any reasonable ground for a conclusion consistent withthe innocence of the accused and it must be such as to showFthat within all human probability the act must have been doneby the accused.””

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Thus, the first principle is that the circumstances on the basis ofwhich the conclusion of guilt is to be drawn, must be fully established.

G26. We may now deal with the circumstances to consider whetherthe prosecution has been able to establish them.

27. The initial reporting in the case was made by Dr. PrakashVishnu son of the deceased. In that reporting, nothing was alleged about the missing ornaments. However, the Inquest Report noted injuries onthe earlobes which were specified in detail in Post Mortem Report (Exh.P-14). Injuries 11 and 12 of the said Post Mortem Report are quite clear.Further, the statement of PW-1, the husband of the deceased, recordedsoon after the incident did refer to the normal ornaments which weremissing. It may therefore be taken to have been established that themissing of gold and silver ornaments from the person of the deceasedwas quite simultaneous with the murder of the deceased. The firstcircumstance propounded by the prosecution in support of its case wasthus well established.

28. We may now deal with the second circumstance regardingrecovery of the missing ornaments at the instance of the appellant. Itmust be noted that the appellants were arrested 15 months after theincident. Soon after their arrest their voluntary statements Exhs. P-21,22, 23 and 24 were recorded on 01.02.2001. These voluntary statementsdo indicate the willingness on the part of the appellants to show the shopin which the items of jewellery were sold by them. However, the actual

recoveries from the concerned shop were made only on 7[th] and 8[th]February, i.e. more than 7 days after the voluntary statements. There isno explanation why it took so much time for the Investigating Machineryto take the accused to the concerned shop. Further, the shop ownercould not produce any register or documentation that any of the appellantshad come to his shop on a particular day and sold the concerned ornaments.We must therefore go only by his oral assertions and not anycontemporaneous record. The description of the ornaments, the weightof the ornaments and the price paid by the shop owner to the appellantsand such other details are not forthcoming from any record. It definitelymeans that the ornaments were not purchased by the jeweller in regularcourse of his business and he must be taken to be aware that theornaments were a stolen property. Even then, the ornaments were keptin the same condition by the jeweller for more than 15 months, whichagain is not quite consistent, as in normal circumstances the nature ofsuch stolen property would be attempted to be changed as early aspossible.

The crucial aspect is that even after the recovery of the ornaments,no Test Identification Parade was arranged by the InvestigatingMachinery. The ornaments worn by the deceased were normalornaments which a lady would wear. Out of three witnesses examined A

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Aby the Prosecution, the mother and the sister of the deceased did notsupport the case of the prosecution on identification of the ornaments.The only person who supported the case was the husband of the deceasedwho was not subjected to any Test Identification Parade.

The missing links in this circumstance are quite crucial andBimportant. We, therefore, do not hold this circumstance to have beenfully established and the connection of the appellants with the missingornaments cannot be said to have been established.

29. We now turn to the third circumstance which is about recoveryof iron rod M.O.- 16 and knife M.O.-17. As the statements of theCappellants indicate, these objects were thrown by them near the fenceerected by the side of a drainage. The objects were said to have beenrecovered 15 months later and yet were carrying blood stains sufficientenough for the Chemical Examiner to analyze and report that it washuman blood. First and foremost, the objects, going by the case of theDprosecution, went completely unnoticed all the while by anyone. Duringthis period of 15 months, the concerned area must have received rainshowers on number of occasions. Additionally, there would be insectsand other living beings who may feed on the blood stains present onthese objects. It is impossible to believe that even after 15 months thematerial objects would still carry bloodstains. The chemical examinationEalso simply found the bloodstains to be of human blood but failed toanalyze the blood group and other details which could be associatedwith the deceased. Considering the fact that the objects were supposedto have been thrown 15 months earlier in a place which was accessibleto everyone and was open to the vagaries of nature, we do not acceptFsaid circumstance to have been proved. In our view, this circumstancecannot be held against the accused.

30. We may hold the fourth circumstance to be proved. It is notas if that the prosecution was unaware about the place of occurrencebut the fact that the appellants could point the house where the incidentGhad occurred may show knowledge on their part about the place ofoccurrence.

31. Thus, out of four circumstances projected by the prosecution,the second and the third circumstances must be eschewed forconsideration while seeing whether the circumstances form a chain ofH

evidence so complete as not to leave any reasonable ground for theconclusion consistent with the innocence of the accused and whetherthey rule out every possible hypothesis except the one to be proved bythe prosecution. In this analysis, we are guided by the approach whichmust be adopted in such matters as has been observed in MusheerKhan @ Badshah Khan & Anr. v. State of Madhya Pradesh[7]. Therelevant passages from the judgment are:

“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 findsthat 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.

40. 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 Coleridge“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 itmay 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 beclearly proved beyond any reasonable doubt. If conviction restssolely on circumstantial evidence, it must create a network fromwhich there is no escape for the accused. The facts evolving outof such circumstantial evidence must be such as not to admit ofany inference except that of guilt of the accused. (See RaghavPrapanna Tripathi v. State of U.P. [AIR 1963 SC 74 : (1963) 1Cri LJ 70] )

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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.(See State of U.P. v. Dr. Ravindra Prakash Mittal [(1992) 3 SCC300 : 1992 SCC (Cri) 642 : 1992 Cri LJ 3693] , SCC p. 309, para20.)

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43. While appreciating circumstantial evidence, we mustremember the principle laid down in Ashraf Ali v. KingEmperor [21 CWN 1152 : 43 IC 241] (IC at para 14) that when ina criminal case there is conflict between presumption of innocenceand any other presumption, the former must prevail.

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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.

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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 gunEwas fired may be strong circumstantial evidence against theaccused, but it is an error of law to hold that the burden ofproving innocence lies upon the accused under suchcircumstances. It seems, therefore, to follow that whatever forcea presumption arising under Section 106 of the Evidence ActFmay have in civil or in less serious criminal cases, in a trial formurder it is extremely weak in comparison with the dominantpresumption 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.State of M.P. [AIR 1952 SC 343 : 1953 Cri LJ 129] The ratioin Govind [AIR 1952 SC 343 : 1953 Cri LJ 129] quoted in AIRpara 5, p. 30 of the Report in Govinda Reddy [AIR 1960 SC 29: 1960 Cri LJ 137] 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 thefacts so established should be consistent only with thehypothesis of the guilt of the accused. Again, the circumstancesshould be of a conclusive nature and tendency and they shouldbe such as to exclude every hypothesis but the one proposedto be proved. In other words, there must be a chain of evidenceso far complete as not to leave any reasonable ground for aconclusion consistent with the innocence of the accused and itmust be [shown] that within all human probability the act musthave been [committed] by the accused.’ [ As observedin Hanumant Govind Nargundkar v. State of M.P., AIR 1952SC 343 at pp. 345-46, para 10.] “

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

32. We are, thus, left with only two circumstances, namely; firstand the fourth circumstances. Before we consider them, a submissionadvanced on behalf of the State on the basis of Chart Exh.P-29 must bedealt with. According to the said Chart, the appellants belonged to aparticular gang which was indulging in crimes of similar nature and asobserved by the Trial Court in its order of sentence dated 30.09.2010,there were about 111 cases registered against the members of the gang.However, as stated earlier, not a single document either in the form of aChargesheet order, depositions or orders were produced on record. Amere chart giving description of offences, numbers and the sections ofthe offences and about the nature of offences cannot be taken intoaccount at the stage of conviction.

33. Weighing the first and the fourth circumstances on thetouchstone of the principles accepted by this Court, in our view, theProsecution has not been able to discharge the burden to such an extentthat the presumption of innocence weighing in favour of the accusedstands displaced. As a matter of fact, with the non-establishment of thesecond circumstance, the first circumstance by itself does not point inthe direction of the appellants. In any case, the first and the fourthcircumstances are wholly inadequate. They do not form a consistent A

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[2022] 4 S.C.R.

Achain leading to a hypothesis sought to be proved by the Prosecution.We, therefore, grant benefit of doubt to the appellants and acquit themof the charges levelled against them. They be set at liberty unless theircustody is required in any other case.

34. The appeals are allowed accordingly.B

Devika GujralAppeals allowed.

(Assisted by : Mahendra Yadav, LCRA)

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