advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Sunday, July 7, 2013

BENEFIT OF DOUBT - TWO WEAPONS , NO BLOOD STAINED CLOTHES, NO DISTURBED SCENE OF OFFENCE None of the prosecution witnesses including the Investigating Officer, stated anything as to how and wherefrom the said knife (Ex.2b) was recovered and kept with the boiler suit in the same cardboard box. This knife (Ex.2b) also bore human blood-stained matching ‘O’ group of the deceased. As per the post mortem report, stab wounds on the neck and chest of the deceased might be by the use of the said weapon Ex.2b. The said knife (Ex.2b) was not subjected to examination to find out the presence of fingerprints, if any, of the appellant. The said knife (Ex.2b) was also not shown to the doctor (PW-19) who conducted the post mortem examination on the body of the deceased, to seek his opinion if the same could have been possible weapon of offence. Even the opinion of the expert witness (PW-22) was not sought as to whether the cuts on the boiler suit could have been caused by that knife. One more important aspect which has not been taken note of by the trial court and the High Court is that as per the prosecution case, the appellant was the trouble maker and instigated other crew members not to steer the ship manually unless the officers give it in writing about fulfillment of their demand of payment of long overdue overtime. This vital piece of evidence regarding the enmity of the appellant with the higher officials and others has been suppressed: instead, the prosecution tried to show that there was no enmity towards the appellant. it can safely be concluded that the offence committed by the appellant has not been fully established beyond all reasonable doubts. The very fact that two blood-stained knives were found by the prosecution proves that the prosecution failed to give sufficient explanation as to who had assaulted the deceased by using another knife (Ex.2b). The High Court has committed grave error in holding that in view of the findings arrived at by the trial court that offence was committed by using the knife (Ex.P-3), the presence of another knife (Ex.2b) with blood-stains will not demolish the case of the prosecution. In our view, from the circumstances the conclusion of the guilt of the appellant herein has not been fully established beyond all shadow of doubt as the circumstances are not conclusive in nature -- neither the chain of events is complete nor the circumstances lead to the conclusion that the offence was committed by the appellant and none else. Hence, the impugned judgment of the High Court affirming the judgment of conviction passed by the trial court cannot be sustained in law.

PUBLISHED IN http://judis.nic.in/supremecourt/filename=40463
Page 1
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1300 OF 2009
Majendran Langeswaran …..Appellant
Versus
State (NCT of Delhi) & Anr. ….Respondents
J U D G M E N T
M.Y. EQBAL, J.
This appeal by special leave is directed against the
judgment and order dated 25th July, 2008 passed by the
High Court of Delhi in Criminal Appeal No. 820 of 2002
whereby the judgment and order dated 9th August, 2002
passed by learned Additional Sessions Judge, New Delhi in
Sessions Case No. 45 of 2001 convicting the accusedappellant under Section 302 of the Indian Penal Code, 1860
(for short, “IPC”) and sentencing him to imprisonment forPage 2
life and a fine of Rs. 100/- and in default of payment of fine,
rigorous imprisonment for one day was maintained and the
said appeal dismissed.
2. The prosecution version in a nutshell is that the
Cargo Ship Motor Vessel “Lok Prem” owned by the Shipping
Corporation of India was chartered by a private company of
South Africa on 6th November, 1996 for carrying Chrome
Alloy. The accused-appellant and the deceased L.
Shivaraman along with other were helmsmen/seamen (crew
members) on the said ship. When the ship was sailing from
South Africa to Japan via Singapore, the auto pilot went out
of order which could not be repaired for non-availability of
technicians on board and thus requiring the crew on board
to manually steer the ship. The accused and one M.Y.
Talgharkar showed reluctance to steer the ship manually
and insisted for repair of auto pilot and payment of their
long overdue overtime. The ship was taken to Singapore to
make the auto pilot functional but the same could not be
got repaired. The accused and said Talgharkar are alleged
to have instigated other crew members to insist and obtain
2Page 3
it in writing from the Captain/Master of the ship (PW-5
Radha Krishan Ambady) that the ship would be got repaired
at Japan, otherwise they (crew members) shall not allow the
moving of the ship from Singapore. When the Captain of
the ship reported the matter to the Shipping Corporation of
India, the General Secretary of the Union (NSUI) directed
the crew members to perform their duties in obedience to
lawful commands of the Captain. On 30th November, 1996,
an altercation is stated to have taken place between the
accused and the deceased L. Shivaraman. As the accused
had sustained some cut injuries on his hands, he reported
the matter to the officials. On 1st December, 1996 when the
ship was on high seas, the appellant took off from his duty
as helmsman on the ground of pain in his hands due to cut
injuries and another helmsman Baria was asked to do the
duty as replacement. As the accused and the deceased
were staying in Cabin No. 25, the accused was temporarily
shifted from that cabin to Cabin No. 23 due to the above
incident of assault. At about 1510 hours, the accused
allegedly approached IInd Officer Kalyan Singh (PW-6) with
3Page 4
a blood-stained knife in his hand and his hands smearing in
blood and is alleged to have confessed before him that he
had killed L. Shivaraman. On being asked by Kalyan Singh
(PW-6), the appellant handed over the blood-stained knife
to him which he placed in a cloth piece without touching the
same. Kalyan Singh (PW-6) then intimated the Captain and
other officers. The body of L. Shivaraman was found lying
in Cabin No. 23 in such a way that half of it was inside the
cabin and half of it outside. The officials of Shipping
Corporation of India were informed. On incident being
reported, pursuant to an instruction from concerned
quarter, the ship was diverted to Hongkong. On being so
directed by the Captain of the ship (PW-5), Kalyan Singh
(PW-6) got the body of the deceased cleaned up for being
preserved in the fish room with the help of Manjeet Singh
Bhupal (PW-4) and Chief Officer V.V. Muralidharan (PW-18)
took photographs. The blood-stained knife was kept in the
safe custody of PW-5. The accused was then apprehended,
tied and disarmed before being shifted to the hospital on
board. Since the ship was having Indian Flag, as per the
4Page 5
International Treaty of which India was a signatory, the act
of the accused was subject to Indian laws. Accordingly, a
case bearing R.C. No. 10(S) of 1996 was registered by the
Central Bureau of Investigation (CBI) against the accused
on 6th December, 1996. On reaching Hongkong, the body of
deceased was handed over to Hongkong Police for post
mortem examination. Two CBI officers reached Hongkong
on 7th December, 1996. The investigation of the case was
conducted by Anil Kumar Ohri, Dy. Superintendent of Police,
C.B.I. (PW-23). The Investigation Officer (I.O.) visited the
ship and recorded the statements of witnesses under
Section 161 of the Code of Criminal Procedure (for short,
“Cr.P.C.”). The blood-stained knife (Ex. P-3) and
deceased’s boiler suit (Ex. 2a) as also relevant papers from
the Hongkong police were taken into his possession by the
I.O. The post mortem examination on the dead body was
conducted by Dr. Lal Sai Chak (PW-19). The accused was
arrested and brought to Delhi where he was medico legally
examined by a doctor. The specimen fingerprints and
signature of the accused were obtained. The knife and the
5Page 6
specimen fingerprints were then sent to Central Forensic
Science Laboratory (CFSL) for comparison. The fingerprints
of the accused had tallied with the fingerprints appearing
on the knife (Ex.P-3). The accused was charged under
Section 302 IPC. In support of its case, the prosecution
examined as many as 23 witnesses.
3. The trial court vide judgment and order dated 9th
August, 2002 held the appellant guilty of committing the
murder of L. Shivaraman taking note of the incident of
assault of 30th November, 1996 in which the appellant had
sustained injuries at the hands of the deceased as motive
on the part of the appellant for commission of crime, the
extra- judicial confession made by him to Kalyan Singh (PW-
6) and presence of his fingerprints on the knife that was
allegedly used as the weapon of offence.
4. Before the High Court while assailing the conviction
and sentence by the trial court, it was contended that there
was sufficient opportunity to force the appellant to hold the
knife (Ex.P-3) to get his fingerprints thereon; that no blood
was noticeable on the clothes of the appellant; that the
6Page 7
clothes of the appellant which he was wearing at the
relevant time were not seized to establish that the same
carried blood stains of the deceased; two other helmsmen
Baria and Talgharkar who were present when the appellant
made confession before Kalyan Singh (PW-6) were not
examined by the prosecution; that the weapon of offence
i.e. knife (Ex.P-3) was not shown to the doctor concerned
who had conducted post mortem examination on the dead
body of the deceased to find out whether the injuries could
have been caused by that weapon; that all the injuries
could not have been caused by the said weapon of offence
which had one blunt edge and the other sharp; that more
than one weapon was used to cause injuries on the person
of the deceased by referring to existence of another knife
(Ex. 2b) in the parcel which contained deceased’s boiler suit
(Ex. 2a) which had also been sent to CFSL; that no
fingerprints were lifted from the second knife nor the same
was referred to the expert for matching with the cuts on the
boiler suit; and that the second knife was also not shown to
the doctor conducting post mortem on the body of the
7Page 8
deceased to ascertain if the same could have been used as
a possible weapon of offence. As regards alleged extrajudicial confession, the depositions of Captain Radha
Krishan Ambady (PW-5) and Kalyan Singh (PW-6) were
referred to and variance in words allegedly used by the
appellant while making the same was demonstrated;
absence of any mention of such a confession in the Official
Log Book was also pleaded; and it was contended that the
I.O. did not detect any blood in Cabin No. 23 as the scene of
crime had also been cleaned and on account of such
tampering the crime could not be connected with the
appellant. It was contended that it was on account of
officers on board including Captain of the ship being
unhappy with and inimical towards the appellant that he
was falsely implicated. It was contended that the previous
day incident of assault could not be reckoned as motive for
fatal assault on the deceased on the following day and such
motive alone in the absence of necessary links in the
circumstantial evidence would not be suffice to record
conviction against the appellant.
8Page 9
5. After appreciation of the evidence of prosecution
witnesses and the documents exhibited therein, the High
Court came to the conclusion that the prosecution has
established the guilt of the appellant in the commission of
the offence and accordingly dismissed the appeal affirming
the judgment and order of conviction and sentence passed
by the trial court. Hence, this appeal by special leave.
6. Mr. G.Tushar Rao, learned counsel appearing for the
appellant has assailed the impugned judgment and order of
conviction and sentence as being illegal and contrary to
facts and evidence on record. Learned counsel submitted
that the conviction is based on circumstantial evidence and
a chain with regard to the circumstances leading to the
guilt of the appellant has not at all been established.
Counsel submitted that it is settled law that extra-judicial
confession is a weak type of evidence and needs
corroboration in a case dependent wholly on circumstantial
evidence and in such cases the exact words used by the
accused have to be reproduced, but in this case even PW-6
before whom the appellant is alleged to have made
9Page 10
confession has not been able to reproduce the exact words
and there are material contradictions in the statements of
prosecution witnesses. It is contended by the counsel that
the manner in which the alleged weapon of offence i.e.
knife Ex.P-3 was seized and sealed is not proper and the
probability of tampering with the knife cannot be ruled out.
Counsel submitted that circumstances and the evidence on
record indicate that the appellant was susceptible to being
forced to hold the knife so as to get his fingerprints on the
knife. It is surprising, counsel submitted, that there are
about 14 stab wounds both minor and major on the neck
and torso as per post mortem report, but there was no
blood noticeable on the appellant nor did any of the
witnesses noticed blood either on the clothes of the
appellant or the bridge or the alleyway from the scene of
occurrence to the bridge nor were the clothes of the
appellant were ever seized by the Captain/Master of the
ship (PW-5), IInd Officer (PW-6), the Chief Officer (PW-18),
Senior Inspector Hongkong Police (PW-20) or the
Investigating Officer of CBI (PW-23) and, therefore, the
10Page 11
chain in the prosecution case of circumstantial evidence
gets fatally broken due to this aspect. It is submitted by
the counsel that from the evidence it is clear that at the
time when the appellant is alleged to have confessed to
Kalyan Singh (PW-6), there were two helmsmen, namely,
Baria and Talgharkar and as per the evidence of the
prosecution witnesses, they also could have heard the
appellant, but these two persons were not examined at all
which goes to show that the prosecution tried to hide
something. It is contended that the knife Ex. P-3 (weapon
of offence) was not shown to the doctor (PW-19) who
conducted the post mortem of the deceased on 6th
December, 1996 in Hongkong to take his opinion as to
whether it could be Ex.P-3 alone which could have caused
the injuries on the body of the deceased and in the absence
of such examination, the weapon remains unconnected to
the injuries on the deceased. Counsel contended that the
injuries on the deceased were not consistent with the
weapon (Ex.P-3) and that too in the absence of the opinion
of the doctor who conducted post mortem and was not
11Page 12
shown the alleged weapon of offence. The counsel
contended that from the evidence on record it is clear that
there was more than one weapon containing the blood of
the deceased as apart from Ex.P-3 knife, there was another
knife about which there is no mention nor any plausible
reason as to wherefrom it came and why no one bothered
about it. The counsel submitted that the doubt created by
this circumstance has neither been looked into, considered
or removed by the prosecution at all and this being a case
purely based on circumstantial evidence, the benefit of
doubt ought to be extended to the appellant. The
prosecution, counsel submitted, is expected and is duty
bound to eliminate every element of suspicion in every
circumstance relied upon by it so as to enable the courts to
come to the hypothesis consistent with the guilt of the
accused and simultaneously inconsistent with the
innocence of the accused person. It is contended that the
Captain of the ship got the scene of offence cleaned and no
site plan of the scene of occurrence prepared.
12Page 13
7. Mr. Mukul Gupta, learned senior counsel appearing
for the respondent-CBI, on the other hand, submitted that
the trial court and the High Court have dealt with the issue
of extra-judicial confession being legally maintainable. The
prosecution has also been able to prove that the same was
without any inducement, threat or promise which factor the
appellant has not been able to discard from any of the
witness. The prosecution has been able to prove the motive
to commit such a crime. Similarly, the recovery of knife,
CFSL report and post mortem report clearly indicate that
the injuries were from a single blade weapon. Even though
there is no eye-witness to the actual crime, yet the
prosecution has been able to bring home the guilt of the
accused under Section 302 IPC by proving the complete
chain of circumstances beyond reasonable doubt. The
appellant neither in cross-examination of various witnesses
nor in any explanation in his statement under Section 313
Cr.P.C. has been able to make a dent in the entire evidence.
The counsel submitted that even in a case of circumstantial
13Page 14
evidence, the evidence has to be appreciated as a whole
and not in pieces, one bit here and one bit there.
8. We have considered the arguments advanced by
the counsel on either side and have also gone through the
findings recorded by the trial court as also by the High
Court.
9. Admittedly, the entire case is based on the
circumstantial evidence as no one has seen the murder
having been committed by the accused-appellant. Although
the trial court has not given much weightage to the
confession alleged to have been made by the accusedappellant before PW-5, PW-6 and PW-20, but the High Court
based the conviction on the basis of extra-judicial
confession also. The trial court while dealing with the
confession alleged to have been made by the accused,
observed as under:
“52. Now in the present case the prosecution
is relying on the confession of the accused
before Kalyan Singh (PW-6), the repetition
confession before Sh. R.K. Ambady (PW-5)
14Page 15
and the confession allegedly made by the
accused before Inspector Wai (PW-20).
53. So far as the confession before R.K.
Ambady (PW-5) is concerned, I am not
inclined to accept the same. PW-5 claims to
have gone on the bridge. The accused had
confessed before him that he had killed Shiva
Raman and will kill the other persons
whosoever comes before him (Hum
Shivaraman Ko Khalash Kiya Aur Koi Ayega To
Usko Bhi Khalash Karenga) However, this
particular claim of PW-5 is conspicuous by its
absence from the official logbook entry
Ex.PW5/D which had been made on 2.12.96.
However, there is no reference of this
particular confession i.e. before PW-5.
54. So far as the confession before Inspector
Wai (PW 20) is concerned, the same cannot
be looked into in view of the law laid down in
State vs. Ranjan Raja Ram 1991 (1) CCC 134.
This particular judgment has been relied on
by counsel for the accused and it had been
argued that since the facts of the present
case were identical, therefore, the accused in
the present case deserves acquittal. I have
carefully gone through the judgment State vs.
Ranjan Raja Ram (supra). In that case the
extra judicial confession was made before a
person who had just joined the ship on 2.6.78
and the occurrence had taken place on
9
th/10th June 1978. He was a stranger to the
accused. It was the prosecution case (in that
case) the accused had kept on telling his
having committed the murder to every one.
It was not believed by the court. In para 26 of
the judgment it was mentioned that the name
of PW in that case had come for the first time
15Page 16
on 15.7.78. Therefore, that case is
distinguishable so far as confession made by
the present accused before Sh. Kalyan Singh
(PW6) is concerned. What is a confession?
What is the law on the subject? Whether
conviction can be based on extra judicial
confession?”
10. On the contentions of the accused-appellant,
the High Court while dismissing the appeal of the
accused by the impugned judgment held as under:
“13. ……. One cannot lose sight of the fact
that according to Kalyan Singh (Pw-6), on
reaching the bridge of the ship, the appellant
had first told him that he had killed Shivraman
and then repeated the same in Hindi also by
uttering, ?KHALAS KAR DIYA?. The statement so
made in Hindi was only in continuation to the
confession initially made by him wherein he had
specifically named Shivraman. Thus, the
words ?KHALAS KAR DIYA? Uttered by the
appellant in Hindi are to be read in the context
of his initial confession naming Shivraman. No
real variance in the content of confession
initially made and the one repeated in Hindi is
thus brought out.
xxx xxx xxx
15. …. The omission to mention the exact
words in the log book entry dated 2.12.1996
vide Ex. PW-5/D in the circumstances cannot
make the testimony of Kalyan Singh (PW-6) in
regard to confession by the appellant
uncreditworthy. The log book entry (Ex.PW-5/D)
does carry a mention that the information
16Page 17
regarding commission of the murder of
Shivraman by the appellant was given over
phone by Shri Kalyan Singh (PW-6) from which it
is evident that Shri Kalyan Singh (PW-6) had,
before passing on the information to the said
effect, come to know that it was the appellant
who had committed the crime. …… The
presence of the appellant at the bridge near
Kalyan Singh (PW-6) before Shri Radha Krishan
Ambady (PW-5) and Murlidharan (PW-20)
reached there and handing over of bloodstained
knife collected from the appellant by Kalyan
Singh (PW-6) lend sufficient corroboration to the
appellant having approached Kalyan Singh (PW-
6) at the bridge and making confessional
statement to him, as deposed by Shri Kalyan
Sijngh (PW-6). The stand of the appellant that
Shri Kalyan Singh (PW-6) had joined hands with
Shri Radha Krishan Ambady (PW-5) and others
on board being inimical to him is difficult to
accept, given the nature of friendly relationship
he enjoyed with Kalyan Singh (PW-6). The
learned trial court would, thus, appear to have
committed no error in reaching the conclusion
that the extra judicial confession made by the
appellant, as deposed in the court, was
voluntary and a truthful one and could, thus,
constitute an incriminating piece of evidence to
find his culpability in the commission of the
crime.
16. Non-examination of two seamen,
namely, Baria and Thalgharkar, who were
manually steering the ship at the relevant time
when the appellant made his confessional
statement before Kalyan Singh (PW-6) cannot
be a ground to discard an otherwise
unimpeached testimony of Kalyan Singh (PW-6)
in regard to confession made to him by the
17Page 18
appellant. Acceptance of testimony of a
particular witness in regard to an extra judicial
confession is not dependent on corroboration by
other witnesses, if otherwise creditworthy. ……
The appellant and Talgharkar thus shared a
comradely bond and in such a situation looking
for a support from Talgharkar to PW Kalyan
Singh’s deposition on extra judicial confession
by the appellant would be expecting too much
from him.
xxx xxx xxx
20. ….. Since the clothes which the
appellant was wearing at the relevant time were
not taken into possession to prove the existence
of bloodstains, if any, thereon and as none of
the witnesses testifies about presence of
bloodstains on his clothes, the conclusion that
follows is that there were no bloodstains on his
clothes when the appellant approached Kalyan
Singh (PW-6) at the bridge to confess his guilty.
This fact could have been of considerable
significance in adjudging the culpability of the
appellant had the effect of the same been not
offset by the strong incriminating evidence
which constitute the basis for convicting the
appellant. … The clothes of the appellant, as
noticed earlier, were not soaked in deceased’s
blood nor there is any evidence of his feet or
footwear, if any, the appellant was wearing,
having got smeared in deceased’s blood before
his proceeding to the bridge and in such
circumstances, no blood could be expected to
have fallen down in the alleyway from the scene
of the crime to the bridge.
xxx xxx xxx
18Page 19
23. Apart from the bloodstained knife Ex.P.3 and
certain other items, as mentioned in the letter
(Ex. PW-21/2) of the investigating officer, one
sealed cardboard parcel ‘containing a blue
coloured soaked boiler suit’ worn by deceased
at the time of incident marked as ‘B’ was also
sent to CFSL for examination and opinion. Such
sealed cardboard box was, on opening, found to
contain two Exhibits 2a and 2b vide CFSL report
Ex.PW-22/1. Ex.2a was the dark blue coloured
boiler suit and Ex.2b was a metallic blade fitted
in a wooden handle like a knife. The length of
the metallic blade is about 5.5 centimeters with
one edge sharp and another blunt having a
round tip at one end. None of the prosecution
witnesses, including the investigating officer,
stated anything as to how and wherefrom the
said knife Ex.2b was recovered and kept with
the boiler suit in the same cardboard box. This
knife Ex.2b, like knife Ex.P-3, also bore human
bloodstains matching ‘O’ group of the deceased.
Existence of knife Ex.2b was made a basis, by
learned counsel for the appellant, to argue that
the same could have been used to cause stab
wounds on the neck and chest of the deceased,
as noted in the postmortem report (Ex.PW-
19/A). Countering the argument related to
nature of weapon of offence used in commission
of the crime, as raised by the learned counsel
for the appellant, learned counsel for CBI
contended that even though the prosecution
witnesses kept silent as to how the knife Ex.2b
came to be sealed in the cardboard box
containing the boiler suit (Ex.2a), in view of
sufficient evidence on record proving beyond
doubt commission of the crime by the appellant
with the knife Ex.P-3, there is no real basis to
support the contention that knife Ex.2b could
also be a possible weapon of offence.
19Page 20
xxx xxx xxx
25. The theory of more than one weapon
being used in the commission of the crime, as
propounded by learned counsel for the
appellant, as noticed earlier, emanates from the
nature of certain injuries on the body of the
deceased and existence of knife Ex.2b with
bloodstains thereon matching the blood group of
the deceased. Learned counsel for the
appellant contended that unlike knife Ex.P-3 the
knife Ex.2b was not subjected to examination to
find the presence of finger prints, if any, on its
handle. The same was also not shown to Dr. Lal
Sai Chak (PW-19), who conducted the
postmortem examination on the body of the
deceased to seek his opinion if the same could
have been the possible weapon of offence, nor
the opinion of the expert witness Shri C.K. Jain
(PW-22) was sought in respect thereto if the
cuts on the boiler suit could have been caused
by that knife.
xxx xxx xxx
28. Keeping in view the incriminating
evidence available on record proving the guilt of
the appellant beyond reasonable doubt, we find
no reason to arrive at a finding different from
the one recorded by the learned trial court in
regard to the complicity of the appellant in
committing the murder of L. Shivaraman on
board. Hence, the impugned conviction and
sentence are maintained and the appeal is
dismissed being bereft of merit.”
20Page 21
11. Now, we have to consider whether the judgment of
conviction passed by the trial court and affirmed by the
High court can be sustained in law. As noticed above, the
conviction is based on circumstantial evidence as no one
has seen the accused committing murder of the deceased.
While dealing with the said conviction based on
circumstantial evidence, the circumstances from which the
conclusion of the guilt is to be drawn should in the first
instance be fully established, and all the facts so
established should also be consistent with only one
hypothesis i.e. the guilt of the accused, which would mean
that the onus lies on the prosecution to prove that the chain
of event is complete and not to leave any doubt in the mind
of the Court.
12. In the case of Hanumant Govind Nargundkar vs.
State of M.P., AIR 1952 SC 343, this Court observed as
under:
“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 in the first instance
21Page 22
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. ….”
13. In the case of Padala Veera Reddy vs. State of
A.P., 1989 Supp (2) SCC 706, this Court opined as under:
“10. Before adverting to the arguments
advanced by the learned Counsel, we shall at
the threshold point out that in the present
case there is no direct evidence to connect
the accused with the offence in question and
the prosecution rests its case solely on
circumstantial evidence. This Court in a series
of decisions has consistently held 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;
22Page 23
(3) the circumstances, taken cumulatively,
should form a chain so complete that there is
no escape from the conclusion that within all
human probability the crime was committed
by the accused and none else; and
(4) the circumstantial evidence in order to
sustain conviction must be complete and
incapable of explanation of any other
hypothesis than that of the guilt of the
accused and such evidence should not only
be consistent with the guilt of the accused
but should be inconsistent with his innocence.
(See Gambhir v. State of Maharashtra, (1982)
2 SCC 351)”
14. In the case of C. Chenga Reddy & Ors. vs. State
of A.P., (1996) 10 SCC 193, this Court while considering a
case of conviction based on the circumstantial evidence,
held as under:
“21. 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. In the
present case the courts below have
overlooked these settled principles and
allowed suspicion to take the place of proof
23Page 24
besides relying upon some inadmissible
evidence.”
15. In the case of Ramreddy Rajesh Khanna Reddy
vs. State of A.P., (2006) 10 SCC 172, this Court again
considered the case of conviction based on circumstantial
evidence and held as under:
“26. It is now well settled that with a view to
base a conviction on circumstantial evidence,
the prosecution must establish all the pieces
of incriminating circumstances by reliable and
clinching evidence and the circumstances so
proved must form such a chain of events as
would permit no conclusion other than one of
guilt of the accused. The circumstances
cannot be on any other hypothesis. It is also
well settled that suspicion, however grave it
may be, cannot be a substitute for a proof
and the courts shall take utmost precaution in
finding an accused guilty only on the basis of
the circumstantial evidence. (See Anil Kumar
Singh
v. State of Bihar, (2003) 9 SCC 67 and Reddy
Sampath Kumar v. State of A.P., (2005) 7 SCC
603).”
16. In the case of Sattatiya vs. State of
Maharashtra, (2008) 3 SCC 210, this Court held as under:
24Page 25
“10. We have thoughtfully considered the
entire matter. It is settled law that an offence
can be proved not only by direct evidence but
also by circumstantial evidence where there
is no direct evidence. The court can draw an
inference of guilt when all the incriminating
facts and circumstances are found to be
totally incompatible with the innocence of the
accused. Of course, the circumstances from
which an inference as to the guilt 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.”
This Court further observed in the aforesaid decision that:
“17. At this stage, we also deem it proper to
observe that in exercise of power under
Article 136 of the Constitution, this Court will
be extremely loath to upset the judgment of
conviction which is confirmed in appeal.
However, if it is found that the appreciation of
evidence in a case, which is entirely based on
circumstantial evidence, is vitiated by serious
errors and on that account miscarriage of
justice has been occasioned, then the Court
will certainly interfere even with the
concurrent findings recorded by the trial court
and the High Court—Bharat v. State of M.P.,
(2003) 3 SCC 106. In the light of the above,
we shall now consider whether in the present
case the prosecution succeeded in
establishing the chain of circumstances
leading to an inescapable conclusion that the
appellant had committed the crime.”
25Page 26
17. In the case of State of Goa vs. Pandurang
Mohite, (2008) 16 SCC 714, this Court reiterated the
settled law that where a conviction 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 person. 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.
18. It would be appropriate to consider some of the
recent decisions of this Court in cases where conviction was
based on the circumstantial evidence. In the case of G.
Parshwanath vs. State of Karnataka, (2010) 8 SCC 593,
this Court elaborately dealt with the subject and held as
under:
26Page 27
“23. In cases where evidence is of a
circumstantial nature, the circumstances
from which the conclusion of guilt is to be
drawn should, in the first instance, be fully
established. Each fact sought to be relied
upon must be proved individually. However,
in applying this principle a distinction must be
made between facts called primary or basic
on the one hand and inference of facts to be
drawn from them on the other. In regard to
proof of primary facts, the court has to judge
the evidence and decide whether that
evidence proves a particular fact and if that
fact is proved, the question whether that fact
leads to an inference of guilt of the accused
person should be considered. In dealing with
this aspect of the problem, the doctrine of
benefit of doubt applies. Although there
should not be any missing links in the case,
yet it is not essential that each of the links
must appear on the surface of the evidence
adduced and some of these links may have to
be inferred from the proved facts. In drawing
these inferences, the court must have regard
to the common course of natural events and
to human conduct and their relations to the
facts of the particular case. The court
thereafter has to consider the effect of proved
facts.
24. In deciding the sufficiency of the
circumstantial evidence for the purpose of
conviction, the court has to consider the total
cumulative effect of all the proved facts, each
one of which reinforces the conclusion of guilt
and if the combined effect of all these facts
taken together is conclusive in establishing
the guilt of the accused, the conviction would
be justified even though it may be that one or
27Page 28
more of these facts by itself or themselves
is/are not decisive. The facts established
should be consistent only with the hypothesis
of the guilt of the accused and should exclude
every hypothesis except the one sought to be
proved. But this does not mean that before
the prosecution can succeed in a case resting
upon circumstantial evidence alone, it must
exclude each and every hypothesis
suggested by the accused, howsoever,
extravagant and fanciful it might be. There
must be a chain of evidence so complete as
not to leave any reasonable ground for the
conclusion consistent with the innocence of
the accused and must show that in all human
probability the act must have been done by
the accused, where various links in chain are
in themselves complete, then the false plea
or false defence may be called into aid only to
lend assurance to the court.”
19. In the case of Rajendra Pralhadrao Wasnik vs.
State of Maharashtra, (2012) 4 SCC 37, while dealing
with the case based on circumstantial evidence, this Court
observed as under:
“12. There is no doubt that it is not a case of
direct evidence but the conviction of the
accused is founded on circumstantial
evidence. It is a settled principle of law that
the prosecution has to satisfy certain
conditions before a conviction based on
circumstantial evidence can be sustained.
The circumstances from which the conclusion
28Page 29
of guilt is to be drawn should be fully
established and should also be consistent
with only one hypothesis i.e. the guilt of the
accused. The circumstances should be
conclusive and proved by the prosecution.
There must be a chain of events so complete
as not to leave any substantial doubt in the
mind of the court. Irresistibly, the evidence
should lead to the conclusion which is
inconsistent with the innocence of the
accused and the only possibility is that the
accused has committed the crime.
13. To put it simply, the circumstances
forming the chain of events should be proved
and they should cumulatively point towards
the guilt of the accused alone. In such
circumstances, 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.”
20. Last but not least, in the case of Brajendrasingh
vs. State of M.P., (2012) 4 SCC 289, this Court while
reiterating the above principles further added that:
“28. Furthermore, the rule which needs to
be observed by the court while dealing with
29Page 30
the cases of circumstantial evidence is that
the best evidence must be adduced which the
nature of the case admits. The circumstances
have to be examined cumulatively. The court
has to examine the complete chain of events
and then see whether all the material facts
sought to be established by the prosecution
to bring home the guilt of the accused, have
been proved beyond reasonable doubt. It has
to be kept in mind that all these principles are
based upon one basic cannon of our criminal
jurisprudence that the accused is innocent till
proven guilty and that the accused is entitled
to a just and fair trial. (Ref. Dhananjoy
Chatterjee v. State of W.B., (1994) 2 SCC 220;
Shivu v. High Court of Karnataka, (2007) 4
SCC 713 and Shivaji v. State of Maharashtra,
(2008) 15 SCC 269)”
21. As discussed hereinabove, there is no dispute with
regard to the legal proposition that conviction can be based
solely on circumstantial evidence but it should be tested on
the touchstone of law relating to circumstantial evidence as
laid down by this Court. In such a case, all circumstances
must lead to the conclusion that the accused is the only one
who has committed the crime and none else.
22. From the prosecution side, a number of witnesses
have been examined to complete the chain of events and to
prove the version given in the FIR and subsequent thereto.
30Page 31
We have re-appreciated and analysed the evidence brought
on record from the prosecution side. On the analysis of the
evidence, we have found many inconsistencies and
infirmities in the prosecution version as mentioned
hereinafter.
23. Admittedly, there is no eye witness in this case
despite the fact that the occurrence took place in the cargo
ship and obviously some of the crew members were living
and/or on duty around the ship. Both the accused and the
deceased were good friends and both were staying in one
cabin viz. Cabin No.25. Before the occurrence, the accused
was shifted to Cabin No.23. Admittedly, therefore both the
accused and the deceased were staying in separate cabin
on the date of occurrence.
24. The accused-appellant and the deceased were
helmsmen on the ship which was sailing from South Africa
to Japan via Singapore. Since the auto-pilot went out of
order and could not be repaired, the crew members were
directed to manually steer the ship. The accused and one
Talghakar showed reluctance to steer the ship manually
31Page 32
and insisted for repair of the auto-pilot and payment of their
long overdue overtime. The prosecution case is that the
accused and the said Talghakar instigated other crew
members to insist and obtain it in writing from the Captain
(PW-5) that the ship would be got repaired at Japan
otherwise they (crew members) shall not allow moving of
the ship from Singapore.
25. The prosecution case is that the accused is alleged
to have confessed before PW-6 about the commission of the
offence and the blood-stained knife was handed over to PW-
6 which was subsequently seized but no blood was
noticeable on the clothes of the appellant which were found
at the relevant time. The other helmsmen, namely, Baria
and Talghakar who were present when the appellant is
alleged to have made confession before PW-6, were not
examined by the prosecution.
26. The knife (Ex.P-3) was not shown to the doctor
concerned who had conducted post mortem examination on
the dead body of the deceased to find out whether the
32Page 33
injuries could have been caused by that weapon.
Surprisingly, another knife (Ex.2b) alleged to have been
recovered from the boiler suit was also not shown to the
doctor to ascertain whether the said knife was also used in
the commission of the offence.
27. From the evidence, it reveals that after the said
incident the appellant was tied up and kept on the bridge
for at least 2 to 3 days before being shifted. The contention
of the appellant’s counsel was that the appellant was
susceptible of being forced to hold the knife (Ex.P-3) so as
to get his fingerprints on the knife which was never kept
inside the fish room along with the dead body.
28. Apart from the aforesaid, it appears from the post
mortem report that there were about 14 stab wounds on
the neck but there was no blood found on the dress of the
appellant or on the scene of occurrence. Though the
deceased was alleged to have been assaulted as many as
14 times by a sharp-edged weapon and there was massive
blood at the site of the offence, no blood had spilled on the
33Page 34
appellant or his clothes. Moreover, there is nothing on
record by way of explanation from the prosecution side as
to why the clothes of the appellant were not seized.
Further, the alleged knife (Ex.P-3) was not shown to the
doctor who conducted the post mortem of the deceased in
Honkong to take his opinion as to whether it was Ex.P-3
alone which could have caused those injuries especially
when another knife was found from the boiler suit.
29. A very relevant piece of evidence which has been
noticed by the High Court, but not given due consideration,
is that apart from the blood-stained knife (Ex. P-3) and
certain other items mentioned in the letter of Investigating
Officer, one sealed cardboard parcel containing blue soaked
boiler suit worn by the deceased at the time of incident was
also sent to CFSL for examination and opinion. In the said
sealed cardboard box, two Exhibits (2a and 2b) were found.
Ex.2a was the dark blue coloured boiler suit and the Ex.2b
was metallic blade fitted in a wooden handle like a knife.
The length of the metallic blade is about 5.5 centimeter
with one edge sharp and another blunt having a round tip
34Page 35
at one end. 
None of the prosecution witnesses including
the Investigating Officer, stated anything as to how and
wherefrom the said knife (Ex.2b) was recovered and kept
with the boiler suit in the same cardboard box. This knife
(Ex.2b) also bore human blood-stained matching ‘O’ group
of the deceased. As per the post mortem report, stab
wounds on the neck and chest of the deceased might be by
the use of the said weapon Ex.2b. The said knife (Ex.2b)
was not subjected to examination to find out the presence
of fingerprints, if any, of the appellant. The said knife
(Ex.2b) was also not shown to the doctor (PW-19) who
conducted the post mortem examination on the body of the
deceased, to seek his opinion if the same could have been
possible weapon of offence. Even the opinion of the expert
witness (PW-22) was not sought as to whether the cuts on
the boiler suit could have been caused by that knife. 
30. One more important aspect which has not been
taken note of by the trial court and the High Court is that as
per the prosecution case, the appellant was the trouble
maker and instigated other crew members not to steer the
35Page 36
ship manually unless the officers give it in writing about
fulfillment of their demand of payment of long overdue
overtime. This vital piece of evidence regarding the enmity
of the appellant with the higher officials and others has
been suppressed: instead, the prosecution tried to show
that there was no enmity towards the appellant.
31. Admittedly, after the alleged incident, the Master of
the ship got the scene of offence cleaned like a vision and
nothing was kept intact in and around the cabin where the
offence was committed. Even the Investigating Officer
failed to inspect the cabin. No site plan was prepared by
the Investigating Officer. Before the arrival of the
Investigating Agency officials, the place of occurrence
including cabin was completely washed and cleaned in such
a way as if nothing had happened in the cabin and the
place around it. 
32. On consideration of all these relevant facts and vital
piece of evidence, it can safely be concluded that the
offence committed by the appellant has not been fully
36Page 37
established beyond all reasonable doubts. 
The very fact
that two blood-stained knives were found by the
prosecution proves that the prosecution failed to give
sufficient explanation as to who had assaulted the
deceased by using another knife (Ex.2b). The High Court
has committed grave error in holding that in view of the
findings arrived at by the trial court that offence was
committed by using the knife (Ex.P-3), the presence of
another knife (Ex.2b) with blood-stains will not demolish
the case of the prosecution. In our view, from the
circumstances the conclusion of the guilt of the appellant
herein has not been fully established beyond all shadow of
doubt as the circumstances are not conclusive in nature --
neither the chain of events is complete nor the
circumstances lead to the conclusion that the offence was
committed by the appellant and none else. Hence, the
impugned judgment of the High Court affirming the
judgment of conviction passed by the trial court cannot be
sustained in law.
37Page 38
33. For the reasons aforestated, this appeal deserves to
be allowed and the impugned judgment is liable to be set
aside. This appeal is, accordingly, allowed and the
judgments of the High Court and the trial court are set
aside. The appellant is directed to be released forthwith if
not required in any other case.
…………………………….J.
(P. Sathasivam)
…………………………….J.
(M.Y. Eqbal)
New Delhi,
July 1, 2013.
38

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.