ASRAF SK AND ANR. v. STATE OF WEST BENGAL

Citation: [2008] 14 S.C.R. 750

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, MUKUNDAKAM SHARMA

Case summary

ASRAF SK AND ANR. v. STATE OF WEST BENGAL.pdf

Judgment text

[2008] 14 S. C. R. 750 ASRAF SK AND ANR. II. STATE OF WEST BENGAL (Criminal Appeal No. 720 of 2004) OCTOBER 20, 2008 [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ. ] --i... ,. Penal Code, 1860 - s. 302 rlw s. 34 - Conviction under, by Courts below-Based on circumstantial evidence - Justification of - On facts, held: Not justified - Evidence of deceased's daughters, on which strong reliance was placed by Courts below, full of contradictions - Circumstances not pointing to guilt of the accused. According to the prosecution, the two Appellants alongwith another person murdered the father of PWs 1 and 2 by throttling and torturing him. Earlier the Appellants had allegedly kidnapped the daughter of PW2 and r had also threatened to kill the entire family of the deceased. Shortly before the incident all the accused were seen following the deceased. The Trial Court convicted the appellants under s. 302 r. w. s. 34 IPC but acquitted the third accused.

The conviction of the Appellants was upheld by the High Court. Hence the present appeal. Allowing the appeal, the Court ). HELD:1. 1. Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are founq to be incompatible with the innocence of the accused or the guilt of any other person. The circum- -l stances from which an inference as to the guilt of the ac- I. _/ .. cused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. [Para 5] [755,C-E] 1. 2. The Trial Court and the High Court held that the evidence of PWs 1 and 2 can be acted upon and, there- 8 fore, the circumstances were established. However, in the opinion of this Court the circumstances do not present a complete chain of circumstances.

The evidence of PWs 1 and 2 on which strong reliance has been placed by the trial Court and the High Court are full of contradictions. .. PW-1 stated that she had seen the actual assault. This was her statement in Court which is contrary to her statement recorded during investigation. In the FIR there was also no reference that PWs 1 and 2 had seen the actual occurrence. PW-2's version is entirely different. The present case is certainly not a case where the prosecution has established the accusations. The accused persons are entitled to acquittal. [Paras 15, 16, 17] [759,D-F; __,,, 760,A; 760,D] Hukam Singh v. State of Rajasthan AIR (1977) SC 1063; Eradu and Ors. v. State of Hyderabad AIR (1956) SC 316; Earabhadrappa v. State of Kamataka AIR (1983) SC 446; State of UP v. Sukhbasi and Ors. AIR (1985) SC 1224; Ba/winder Singh v. State of Punjab AIR (1987) SC 350; Ashok Kumar Chatterjee v. State of MP AIR (1989) SC 1890; Bhagat Ram v. State of Punjab AIR (1954) SC 621; C.

Chenga Reddy and Ors. v. State of A. P (1996) 10 SCC 193; Padala Veera Reddy v. State of A. P and Ors. AIR (1990) SC 79; State of U. P. v. Ashok Kumar Srivastava (1992) Crl. LJ 1104; Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh AIR (1952) SC 343; Sharad Birdhichand Sarda v. State of Maharashtra AIR (1984) SC 1622; State of Rajasthan _,. -p-- v. Rajaram (2003) 8 SCC 180 State ofHaryana v. Jagbir Singh and Anr. (2003) 11 sec 261 and Chatter Singh and Ors. v. State of Haryana [Criminal Appeal No. 180/2001 disposed of by S. C. on 26th August, 2008] - relied on. ~ Circumstantial Evidence by Alfred Wills (Chapter VI) referred to. CASE LAW REFERENCE AIR (1977) SC 1063 relied on Para 5 AIR (1956) SC 316 relied on Para 5 AIR (1983) SC 446 relied on Para 5 ·-,L. , · rant conclusion of guilt of the accused. The High Court did not accept this plea and confirmed the conviction. 3. In support of the appeal, learned counsel for the appel- !

ants submitted that the trial Court and the High Court have erred in holding that the circumstances were sufficient to hold the ap- 8 pellants guilty. '"'!. ~ 4. Learned counsel for the respondent-State on the other hand supported the judgments of the trial Court and the High Court. 5. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State ofRajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); ;, Earabhadrappa v. State of Kamataka (AIR 1983 SC 446); State -,... of UP. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Ba/winder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M. P. (AIR 1989 SC 1890).

The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from cir- -''-~{ cumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. 6. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State ofA. P. (1996) 1O -#+ sec 193, wherein it has been observed thus: "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such --~circumstances must be conclusive in nature.

Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.... ". 7. In Padala Veera Reddy v State of A. P and Ors. (AIR --.. J.. ; 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; ,.

~ '- (3) the circumstances, taken cumulatively should form a y· chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but y should be inconsistent with his innocence. 8. In State of U. P v Ashok Kumar Srivastava, (1992 Crl. LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the ~ accused must be accepted.

It was also pointed out that the 4 circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. ~)I· 9. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal .....

_ ,i- accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted". 10. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch- ' ~ stone of law relating to circumstantial evidence laid down by -y the this Court as far back as in 1952. 11. In Hanumant Govind Nargundkar and Anr.

V State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis >( of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the ~ innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. " Ja. "('" 12. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622).

Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. _z,. They are: ~ (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

The circumstances concerned 'must' or 'should' and not 'may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; ) p y· (3) the circumstances should be of a conclusive nature ~ I and tendency; ,_ ~ ~ (4) they should exclude every possible hypothesis except I the one to be proved; and (5) there must be a chain of evidence so complete as I t not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must y- ~ have been done by the accused. 13. These aspects were highlighted in State of Rajasthan L r- 1. v. Rajaram (2003 (8) SGC 180), State of Haryana v. Jagbir ·~ Singh and Anr. (2003 (11) SCC 261) and Criminal Appeal r No. 180/2001 (Chatter Singh and Ors. v. State of Haryana) dis- .. +- 1 posed of on 26 h August, 2008. 14.

The circumstances which were highlighted by the prosecution to substantiate the accusations read as follows: "(1) Appellant No. 1 Asraf Sk. kidnapped the grand- ]>daughter of the deceased and married her. (II) In the early evening on the date of occurrence the mother of the kidnapped girl, being the daughter of the deceased was crying loudly as her daughter was kidnapped by appellant No. 1 Asraf Sk. Hearing the cries of PW-1 Smt. Pasani Pal, appellants had the ... ,__,;.. - audacity to trespass into the house of the deceased and slap PW-2 Smt. Pasani Pal. They even threatened them that all the members of his family would be annihilated. (Ill) An hour or so after the aforesaid incident, deceased went out to the field to ease himself. At that time, though may be intervened by few minutes, the appellants and another were found following the deceased. " 15.

The trial Court and the High Court held that the evi- ~ y dence of PWs 1 and 2 can be acted upon and, therefore, the circumstances were established. The circumstances in our considered opinion do not present a complete chain of circumstances. The evidence of PWs 1 and 2 on which strong reliance has been placed by the trial Court and the High Court are full of contradictions. PW-1 stated that she had seen the actual assault. This was her statement in court which is contrary to her statement recorded during investigation. In the First lnformation Report there was also no reference that PWs 1 and 2 had -y seen the actual occurrence. Similarly PW-1's statementin court I is as follows: "As my father did not return within 5/6 minutes, myself and my sister Pasani had been to the garden. Then the accused Asraf and Rashid Molla then started fleeing away ,_ -rl after pushing the father on the ground.

We then went to our father and found the legs in the water and upper part of the body on the bank of the pond. We noticed mark of strangulation of his throat and marks of ecchymosis in his hand. We picked up our father from that place. He was then dead. " . x. ;r· 16. PW-2's version is entirely different. Her statement in . __ court was to the following effect: "As my father did not return within 5/7 minutes myself and my sister Anita then went out of our house in search of my father and to know what happened to him. We had been to tank side of Kaytala Hat, then accused Rashid &Asraf ---'Zr were found fleeing very fast by our side. We then went towards the southern Ghat of the said Keyatal tank and found my father lying on the bank side facing downward. I did not tell 1. 0. that while I came near the hat pukar tank the accused persons were fleeing away by our side. " 17. Above being the position, this is certainly not a case where the prosecution has established the accusations.

The accused persons are entitled to acquittal, which we direct. They r shall be released from custody forthwith unless required to be I . , in custody in any other case. r B. B. B. Appeal allowed. . ~ ~-