IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 486 OF 2010
Raja @ Rajinder ... Appellant
Versus
State of Haryana ... Respondent
J U D G M E N T
Dipak Misra, J.
The present appeal is directed against the judgment and order dated
7.09.2009 of the High Court of Punjab and Haryana at Chandigarh in Criminal
Appeal No. 770-DB of 2006, whereby the Division Bench has confirmed the
judgment of conviction and order of sentence passed by the learned
Additional Sessions Judge, Sirsa in Sessions Case No. 357 of 2003
convicting the present appellant for the offences punishable under Sections
302 and Section 201 read with Section 34 of the Indian Penal Code (IPC) and
sentencing him to suffer rigorous imprisonment for life and payment of fine
of Rs.5000/- under Section 302 and rigorous imprisonment of three years and
fine of Rs.1000/- under Section 201 read with Section 34 IPC with default
clause for the fine amount in respect of both the offences with the
stipulation that both the sentences would be concurrent.
2. Bereft of unnecessary details, the prosecution case, as has been
unfurled is that on 18.1.2003 about 6.30 p.m., Het Ram, the deceased, had
left his home with the accused-appellant and did not return till the
morning of 19.1.2003. The family members of the deceased searched for him
at various places and made enquiries from the relations but despite their
best efforts, he could not be found. In course of that enquiry it was
revealed by the owner of a tea-stall that on 18.01.2003 about 8.30 p.m. the
appellant and the deceased had taken tea together and thereafter they had
left that place. Being so informed by the tea stall owner, Subhash, PW-8,
brother of the deceased along with Pala Ram and Ramesh went to the house of
the accused-appellant, and came to learn from his father Krishan Kumar, the
co-accused, that Raja had gone to village Kharia but could not be contacted
as the telephone number of village Kharia was out of order. Thereafter,
Subhash, PW-8, the informant returned to his house and waited till night
for the return of Het Ram. When the deceased did not come till night,
Subhash along with his relations again proceeded to the house of the
appellant who was present in the house, and informed them that in the night
of 18.01.2003 he and the deceased had taken tea together but when they were
returning to their houses, a Sikh boy met them and Het Ram went with that
boy on his motor cycle. After getting the said information, when the
informant and others were returning from the house of the accused, they
noticed blood stains in the street in front of the houses of Mohan and
Mahender Singh. It aroused suspicion of the informant that his brother
might have been murdered by the appellant and the dead body could have been
disposed of. The motive behind the incident, as mentioned, was that the
appellant was indulged in consuming poppy husk and the father of the
appellant had a suspicion that the deceased was instrumental in making his
son a drug addict. On the basis of the aforesaid allegations, an FIR No.
45 dated 20.1.2003 was lodged at the police station Rania. After the
criminal law was set in motion, the investigating agency went to the place
where blood stains were found and prepared the site plan and seized the
bloodstained earth. On the next day, police went to village Bani in
connection with the investigation and blood stains were found on the
stairs, platform and wall of a well situated in the old Abadi of the
village. The police collected the bloodstained bricks from there and
noticed a bundle inside the well and eventually recovered the dead body of
Het Ram which was found inside the said bundle. The investigating agency
sent the dead body for post-mortem to the General Hospital, Sirsa and
arrested the accused on 22.1.2003. During the investigation the appellant
suffered disclosure statement, Exh. P. EE, to the effect that he had taken
Het Ram to the tea stall and thereafter to his 'Nohra' on a false pretext,
where he had caused a blow with a knife on the neck of Het Ram about 10.00
P.M. on 18.01.2003. Het Ram tried to escape but he chased him and when the
deceased fell down in front of the house of Mahender Singh, he inflicted
several blows with the knife on the chest and the waist region of the
deceased. Being unable to drag the dead body back to his courtyard, he took
the help of his father for the disposal of the body. The blanket worn by
the deceased was burnt in the courtyard of the appellant. Thereafter, the
bloodstained clothes of the appellant and the knife were recovered by the
police from the pit of latrine on the basis of the statement of the accused-
appellant. The parcels of bloodstained earth, bloodstained clothes of the
accused and the deceased, the seized knife and other materials were sent to
the Forensic Science Laboratory, Madhuban, for examination and the report,
Exhibit P.RR, was received by the prosecution. During the investigation,
statement of Sukha, PW-7, was recorded on 21.1.2003 wherein he had stated
that the deceased was murdered by the appellant as the appellant was
suspicious that the deceased had illicit relationship with his wife.
Similar statement was also made by Nanak, PW-9. The investigating officer
recorded statement of number of witnesses and after completing the
investigation, placed the chargesheet against the accused-appellant for the
offences punishable under Sections 302 and 201 read with Section 34 IPC.
The co-accused, Krishan Kumar, was chargesheeted for the offence under
Sections 201 read with Section 34 IPC. After the chargesheet was laid,
the competent court committed the matter to the court of Session for trial.
The accused pleaded not guilty and claimed to be tried.
3. The prosecution in order to substantiate the charges levelled against
the accused persons examined as many as 13 witnesses. The principal
witnesses are Dr. N.K. Mittal, PW-1, who had conducted the post-mortem on
the dead body of the deceased, Sukha, PW-7, Subhash, PW-8, the brother of
the deceased and the informant, Nanak, PW-9, Mahender, PW-10, who had seen
the deceased and the appellant having tea together in the tea stall and
Kalawati, PW-11, mother of the deceased who had witnessed the deceased
leaving the house in the company of the accused-appellant.
4. The accused persons in their statements u/s 313 of the Code of
Criminal Procedure (CrPC) denied the allegations and pleaded false
implication. They claimed that accused-Raja was neither married to anyone
nor addicted to opium and, therefore, the alleged motive to commit the
murder of Het Ram was totally baseless. They further denied having made
any disclosure statements to the police and stated that the police had
planted articles to create evidence against the accused. The accused
persons chose not to adduce any evidence in their defence.
5. The learned trial Judge, on the basis of the material brought on
record, came to hold that the whole case rested on circumstantial evidence
and the prosecution had been able to establish the chain in completeness
against the accused persons and accordingly convicted the appellant and his
father and sentenced them, as has been stated hereinbefore. Being
dissatisfied, the appellant and his father had preferred the criminal
appeal wherein the High Court had affirmed the conviction and sentence of
the appellant but as far as his father, Krishan Kumar, is concerned, while
maintaining the conviction, modified the sentence of Krishan Kumar imposed
by the trial Judge and restricted it to the period already undergone
without interfering with the quantum of fine. The present appeal has been
preferred by Raja assailing his conviction and sentence.
6. We have heard Mr. M.M. Kashyap, learned counsel for the appellant and
Mr. Vikas Sharma, learned counsel for the State.
7. As the factual matrix would show, the case of the prosecution
entirely hinges on circumstantial evidence. When a case rests on
circumstantial evidence, the Court has to be satisfied that the
circumstances from which an inference of guilt is sought to be drawn, must
be cogently and firmly established; those circumstances should be of a
definite tendency unerringly pointing towards guilt of the accused; 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 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 Padala
Veera Reddy v. State of A.P.[1]]
8. In Balwinder Singh v. State of Punjab[2], it has been laid down that:
"..... the circumstances from which the conclusion of guilt is to be
drawn should be fully proved and those circumstances must be
conclusive in nature to connect the accused with the crime. All the
links in the chain of events must be established beyond a reasonable
doubt and the established circumstances should be consistent only with
the hypothesis of the guilt of the accused and totally inconsistent
with his innocence. In a case based on circumstantial evidence, the
court has to be on its guard to avoid the danger of allowing suspicion
to take the place of legal proof and has to be watchful to avoid the
danger of being swayed by emotional considerations, howsoever strong
they may be, to take the place of proof."
9. From the aforesaid it is clear as day that the Court is required to
evaluate the circumstantial evidence to see that the chain of events have
been established clearly and completely to rule out any reasonable
likelihood of the innocence of the accused. Needless to say whether the
chain is complete or not would depend on the facts of each case emanating
from the evidence and no universal yardstick should ever be attempted [See
Ujjagar Singh v. State of Punjab[3]].
10. In the instant case, the circumstances that have been established by
the prosecution are that the deceased had accompanied the accused-
appellant, being called by him, from his house in the early part of the
evening on the date of occurrence. The mother of the deceased, Kalawati,
PW-11, has deposed in that regard. Thereafter, from the material brought
on record, it is clearly revealed that the appellant was seen at the tea
stall with the deceased. The said fact has been deposed by Mahender, PW-
10. Thus, from the aforesaid evidence, two facts are established, namely,
the accused and the deceased had left the house of the deceased and were
seen taking tea together at the tea stall. It is submitted by the learned
counsel for the appellant that the last seen theory as advanced by the
prosecution is not acceptable inasmuch as the owner of the tea stall has
not been examined. When the testimony of the aforesaid two witnesses
deserve acceptance and receive corroboration from the other evidence on the
record, no adverse inference should be drawn because of non-examination of
the tea stall owner, who, as has been submitted by the learned counsel for
the appellant, is a material witness. It is well settled in law that non-
examination of a material witness is not a mathematical formula for
discarding the weight of the testimony available on record, if the same is
natural, trustworthy and convincing [See State of H.P. v. Gian Chand[4]].
That apart, he was not such a witness who alone was the competent witness
to depose about a fact and his non-examination would really destroy the
version of the prosecution.
11. Another reason for acceptance of the last seen theory is that the
brother of the deceased, Subhash, PW-8, has testified that he had enquired
from the accused as regards the whereabouts of the deceased, for the
deceased had accompanied the accused and at that juncture the accused had
replied that at the tea stall a Sikh boy came and the deceased went with
him. As per the prosecution case, the deceased and the accused are co-
villagers. In his statement recorded under Section 313 CrPC, the accused-
appellant totally denied to have accompanied the deceased. Learned trial
Judge and the High Court have placed reliance on the evidence of the
mother, Kalawati, PW-11, the brother, Subhash, PW-8 and Mahender, PW-10.
The cumulative reading and apposite appreciation of the said evidence
proves beyond reasonable doubt that the deceased was last seen with the
accused.
12. Another circumstance that has been proven is about the recovery of
knife, blood-stained clothes and the ashes of the burnt blanket. The
seizure witnesses Sukha, PW-7 and Nanak, PW-9 have proven the seizure. It
is submitted by the learned counsel for the appellant that police had
recorded the confessional statement of the accused-appellant at the police
custody and thereafter, as alleged, had recovered certain things which
really do not render any assistance to the prosecution, for the confession
recorded before the police officer is inadmissible. That apart, the
accused had advanced the plea that the articles and the weapon were planted
by the investigating agency. To appreciate the said submission in proper
perspective, we may profitably reproduce a passage from State of U.P. v.
Deoman Upadhyaya[5]:
"The expression, 'accused of any offence' in Section 27, as in Section
25, is also descriptive of the person concerned i.e. against a person
who is accused of an offence, Section 27 renders provable certain
statements made by him while he was in the custody of a police
officer. Section 27 is founded on the principle that even though the
evidence relating to confessional or other statements made by a
person, whilst he is in the custody of a police officer, is tainted
and therefore inadmissible, if the truth of the information given by
him is assured by the discovery of a fact, it may be presumed to be
untainted and is therefore declared provable insofar as it distinctly
relates to the fact thereby discovered. Even though Section 27 is in
the form of a proviso to Section 26, the two sections do not
necessarily deal with the evidence of the same character. The ban
imposed by Section 26 is against the proof of confessional statements.
Section 27 is concerned with the proof of information whether it
amounts to a confession or not, which leads to discovery of facts. By
Section 27, even if a fact is deposed to as discovered in consequence
of information received, only that much of the information is
admissible as distinctly relates to the fact discovered."
13. In State of Maharashtra v. Damu[6], while dealing with the
fundamental facet of Section 27 of the Evidence Act, the Court observed
that the basic idea embedded in the said provision is the doctrine of
confession by subsequent events, which is founded on the principle that if
any fact is discovered in a search made on the strength of any information
obtained from a prisoner, such a discovery is a guarantee that the
information supplied by the prisoner is true. It further stated that the
information might be confessional or non-inculpatory in nature, but if it
results in discovery of a fact it becomes a reliable information and,
therefore, the legislature permitted such information to be used as
evidence by restricting the admissible portion to the minimum.
14. Thus, if an accused person gives a statement that relates to the
discovery of a fact in consequence of information received from him is
admissible. The rest part of the statement has to be treated as
inadmissible. In view of the same, the recovery made at the instance of
the accused-appellant has been rightly accepted by the trial Court as well
as by the High Court, and we perceive no flaw in it.
15. Another circumstance which has been taken note of by the High Court
is that the blood-stained clothes and the weapon, the knife, were sent to
the Forensic Science Laboratory. The report obtained from the Laboratory
clearly shows that blood stains were found on the clothes and the knife.
True it is, there has been no matching of the blood group. However, that
would not make a difference in the facts of the present case. The accused
has not offered any explanation how the human blood was found on the
clothes and the knife. In this regard, a passage from John Pandian v.
State[7] is worth reproducing:
"The discovery appears to be credible. It has been accepted by both
the courts below and we find no reason to discard it. This is apart
[pic]from the fact that this weapon was sent to the forensic science
laboratory (FSL) and it has been found stained with human blood.
Though the blood group could not be ascertained, as the results were
inconclusive, the accused had to give some explanation as to how the
human blood came on this weapon. He gave none. This discovery would
very positively further the prosecution case."
In view of the aforesaid, there is no substantial reason not to
accept the recovery of the weapon used in the crime. It is also apt to
note here that Dr. N.K. Mittal, PW-1, has clearly opined that the injuries
on the person of the deceased could be caused by the knife and the said
opinion has gone unrebutted.
16. Another circumstance which needs to be noted is that Sukha, PW-7, a
taxi driver, has deposed that on 18.1.2003 about 11.00 p.m. while he was
going to Fatehabad for taking passengers, he saw a bullock cart parked in
front of the house of the accused and certain persons were tying a bundle
in a "palli". On query being made by him, the accused persons told him
that they are carrying manure to the fields. Though, this witness has
given an exaggerated version and stated differently about the time of
arrest, yet his testimony to the effect that he had seen the accused with a
bundle in "palli" at a particular place cannot be disbelieved. The maxim
"falsus in uno, falsus in omnibus", is not applicable in India. In Krishna
Mochi v. State of Bihar[8], it has been held thus:
"The maxim falsus in uno, falsus in omnibus has no application in
India and the witnesses cannot be branded as liars. The maxim falsus
in uno, falsus in omnibus (false in one thing, false in everything)
has not received general acceptance ... nor has this maxim come to
occupy the status of the rule of law. It is merely a rule of caution.
All that it amounts to, is that in such cases testimony may be
disregarded, and not that it must be disregarded."
17. In Yogendera v. State of Rajasthan[9], it has been ruled that the
Court must assess the extent to which the deposition of a witness can be
relied upon. The court must make every attempt to separate falsehoods from
the truth, and it must only be in exceptional circumstances, when it is
entirely impossible to separate the grain from the chaff, for the same are
so inextricably intertwined, that the entire evidence of such a witness
must be discarded. Thus viewed, the version of PW-7 to the extent that has
been stated hereinabove is totally acceptable and credible.
18. In a case based on circumstantial evidence, motive assumes great
significance as its existence is an enlightening factor in a process of
presumptive reasoning [See Kundula Bala Subrahmanyam and Anr. v. State of
Andhra Pradesh[10]]. In the case at hand, it had come in the evidence that
the accused-appellant was suspicious of the illicit relationship between
the deceased and his wife. The accused has taken the plea that he was
never married. It is noteworthy that the materials brought on record go a
long way to show that after the death of his brother he had entered into
the wedlock with his sister-in-law as per the tradition of the community,
that is, 'Kareva' marriage. The said facet of evidence has really not been
assailed or shaken. Thus, it has been established that there was suspicion
by the accused that the deceased was having relationship with his brother's
wife and that had aroused his anger. The said motive further strengthens
the case of the prosecution.
19. In view of the aforesaid analysis, we are of the considered opinion
that the appeal preferred by the appellant is totally devoid of merit and
is accordingly dismissed.
.............................J.
(Dipak Misra)
..........................., J.
(N.V. Ramana)
New Delhi
April 10, 2015
-----------------------
[1] 1989 Supp (2) SCC 706
[2] 1995 Supp (4 SCC 259
[3] (2007) 13 SCC 90
[4] (2001) 6 SCC 71
[5] AIR 1960 SC 1125
[6] (2000) 6 SCC 269
[7] (2010) 14 SCC 129
[8] (2002) 6 SCC 81
[9] (2013) 12 SCC 399
[10] (1993) 2 SCC 684
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 486 OF 2010
Raja @ Rajinder ... Appellant
Versus
State of Haryana ... Respondent
J U D G M E N T
Dipak Misra, J.
The present appeal is directed against the judgment and order dated
7.09.2009 of the High Court of Punjab and Haryana at Chandigarh in Criminal
Appeal No. 770-DB of 2006, whereby the Division Bench has confirmed the
judgment of conviction and order of sentence passed by the learned
Additional Sessions Judge, Sirsa in Sessions Case No. 357 of 2003
convicting the present appellant for the offences punishable under Sections
302 and Section 201 read with Section 34 of the Indian Penal Code (IPC) and
sentencing him to suffer rigorous imprisonment for life and payment of fine
of Rs.5000/- under Section 302 and rigorous imprisonment of three years and
fine of Rs.1000/- under Section 201 read with Section 34 IPC with default
clause for the fine amount in respect of both the offences with the
stipulation that both the sentences would be concurrent.
2. Bereft of unnecessary details, the prosecution case, as has been
unfurled is that on 18.1.2003 about 6.30 p.m., Het Ram, the deceased, had
left his home with the accused-appellant and did not return till the
morning of 19.1.2003. The family members of the deceased searched for him
at various places and made enquiries from the relations but despite their
best efforts, he could not be found. In course of that enquiry it was
revealed by the owner of a tea-stall that on 18.01.2003 about 8.30 p.m. the
appellant and the deceased had taken tea together and thereafter they had
left that place. Being so informed by the tea stall owner, Subhash, PW-8,
brother of the deceased along with Pala Ram and Ramesh went to the house of
the accused-appellant, and came to learn from his father Krishan Kumar, the
co-accused, that Raja had gone to village Kharia but could not be contacted
as the telephone number of village Kharia was out of order. Thereafter,
Subhash, PW-8, the informant returned to his house and waited till night
for the return of Het Ram. When the deceased did not come till night,
Subhash along with his relations again proceeded to the house of the
appellant who was present in the house, and informed them that in the night
of 18.01.2003 he and the deceased had taken tea together but when they were
returning to their houses, a Sikh boy met them and Het Ram went with that
boy on his motor cycle. After getting the said information, when the
informant and others were returning from the house of the accused, they
noticed blood stains in the street in front of the houses of Mohan and
Mahender Singh. It aroused suspicion of the informant that his brother
might have been murdered by the appellant and the dead body could have been
disposed of. The motive behind the incident, as mentioned, was that the
appellant was indulged in consuming poppy husk and the father of the
appellant had a suspicion that the deceased was instrumental in making his
son a drug addict. On the basis of the aforesaid allegations, an FIR No.
45 dated 20.1.2003 was lodged at the police station Rania. After the
criminal law was set in motion, the investigating agency went to the place
where blood stains were found and prepared the site plan and seized the
bloodstained earth. On the next day, police went to village Bani in
connection with the investigation and blood stains were found on the
stairs, platform and wall of a well situated in the old Abadi of the
village. The police collected the bloodstained bricks from there and
noticed a bundle inside the well and eventually recovered the dead body of
Het Ram which was found inside the said bundle. The investigating agency
sent the dead body for post-mortem to the General Hospital, Sirsa and
arrested the accused on 22.1.2003. During the investigation the appellant
suffered disclosure statement, Exh. P. EE, to the effect that he had taken
Het Ram to the tea stall and thereafter to his 'Nohra' on a false pretext,
where he had caused a blow with a knife on the neck of Het Ram about 10.00
P.M. on 18.01.2003. Het Ram tried to escape but he chased him and when the
deceased fell down in front of the house of Mahender Singh, he inflicted
several blows with the knife on the chest and the waist region of the
deceased. Being unable to drag the dead body back to his courtyard, he took
the help of his father for the disposal of the body. The blanket worn by
the deceased was burnt in the courtyard of the appellant. Thereafter, the
bloodstained clothes of the appellant and the knife were recovered by the
police from the pit of latrine on the basis of the statement of the accused-
appellant. The parcels of bloodstained earth, bloodstained clothes of the
accused and the deceased, the seized knife and other materials were sent to
the Forensic Science Laboratory, Madhuban, for examination and the report,
Exhibit P.RR, was received by the prosecution. During the investigation,
statement of Sukha, PW-7, was recorded on 21.1.2003 wherein he had stated
that the deceased was murdered by the appellant as the appellant was
suspicious that the deceased had illicit relationship with his wife.
Similar statement was also made by Nanak, PW-9. The investigating officer
recorded statement of number of witnesses and after completing the
investigation, placed the chargesheet against the accused-appellant for the
offences punishable under Sections 302 and 201 read with Section 34 IPC.
The co-accused, Krishan Kumar, was chargesheeted for the offence under
Sections 201 read with Section 34 IPC. After the chargesheet was laid,
the competent court committed the matter to the court of Session for trial.
The accused pleaded not guilty and claimed to be tried.
3. The prosecution in order to substantiate the charges levelled against
the accused persons examined as many as 13 witnesses. The principal
witnesses are Dr. N.K. Mittal, PW-1, who had conducted the post-mortem on
the dead body of the deceased, Sukha, PW-7, Subhash, PW-8, the brother of
the deceased and the informant, Nanak, PW-9, Mahender, PW-10, who had seen
the deceased and the appellant having tea together in the tea stall and
Kalawati, PW-11, mother of the deceased who had witnessed the deceased
leaving the house in the company of the accused-appellant.
4. The accused persons in their statements u/s 313 of the Code of
Criminal Procedure (CrPC) denied the allegations and pleaded false
implication. They claimed that accused-Raja was neither married to anyone
nor addicted to opium and, therefore, the alleged motive to commit the
murder of Het Ram was totally baseless. They further denied having made
any disclosure statements to the police and stated that the police had
planted articles to create evidence against the accused. The accused
persons chose not to adduce any evidence in their defence.
5. The learned trial Judge, on the basis of the material brought on
record, came to hold that the whole case rested on circumstantial evidence
and the prosecution had been able to establish the chain in completeness
against the accused persons and accordingly convicted the appellant and his
father and sentenced them, as has been stated hereinbefore. Being
dissatisfied, the appellant and his father had preferred the criminal
appeal wherein the High Court had affirmed the conviction and sentence of
the appellant but as far as his father, Krishan Kumar, is concerned, while
maintaining the conviction, modified the sentence of Krishan Kumar imposed
by the trial Judge and restricted it to the period already undergone
without interfering with the quantum of fine. The present appeal has been
preferred by Raja assailing his conviction and sentence.
6. We have heard Mr. M.M. Kashyap, learned counsel for the appellant and
Mr. Vikas Sharma, learned counsel for the State.
7. As the factual matrix would show, the case of the prosecution
entirely hinges on circumstantial evidence. When a case rests on
circumstantial evidence, the Court has to be satisfied that the
circumstances from which an inference of guilt is sought to be drawn, must
be cogently and firmly established; those circumstances should be of a
definite tendency unerringly pointing towards guilt of the accused; 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 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 Padala
Veera Reddy v. State of A.P.[1]]
8. In Balwinder Singh v. State of Punjab[2], it has been laid down that:
"..... the circumstances from which the conclusion of guilt is to be
drawn should be fully proved and those circumstances must be
conclusive in nature to connect the accused with the crime. All the
links in the chain of events must be established beyond a reasonable
doubt and the established circumstances should be consistent only with
the hypothesis of the guilt of the accused and totally inconsistent
with his innocence. In a case based on circumstantial evidence, the
court has to be on its guard to avoid the danger of allowing suspicion
to take the place of legal proof and has to be watchful to avoid the
danger of being swayed by emotional considerations, howsoever strong
they may be, to take the place of proof."
9. From the aforesaid it is clear as day that the Court is required to
evaluate the circumstantial evidence to see that the chain of events have
been established clearly and completely to rule out any reasonable
likelihood of the innocence of the accused. Needless to say whether the
chain is complete or not would depend on the facts of each case emanating
from the evidence and no universal yardstick should ever be attempted [See
Ujjagar Singh v. State of Punjab[3]].
10. In the instant case, the circumstances that have been established by
the prosecution are that the deceased had accompanied the accused-
appellant, being called by him, from his house in the early part of the
evening on the date of occurrence. The mother of the deceased, Kalawati,
PW-11, has deposed in that regard. Thereafter, from the material brought
on record, it is clearly revealed that the appellant was seen at the tea
stall with the deceased. The said fact has been deposed by Mahender, PW-
10. Thus, from the aforesaid evidence, two facts are established, namely,
the accused and the deceased had left the house of the deceased and were
seen taking tea together at the tea stall. It is submitted by the learned
counsel for the appellant that the last seen theory as advanced by the
prosecution is not acceptable inasmuch as the owner of the tea stall has
not been examined. When the testimony of the aforesaid two witnesses
deserve acceptance and receive corroboration from the other evidence on the
record, no adverse inference should be drawn because of non-examination of
the tea stall owner, who, as has been submitted by the learned counsel for
the appellant, is a material witness. It is well settled in law that non-
examination of a material witness is not a mathematical formula for
discarding the weight of the testimony available on record, if the same is
natural, trustworthy and convincing [See State of H.P. v. Gian Chand[4]].
That apart, he was not such a witness who alone was the competent witness
to depose about a fact and his non-examination would really destroy the
version of the prosecution.
11. Another reason for acceptance of the last seen theory is that the
brother of the deceased, Subhash, PW-8, has testified that he had enquired
from the accused as regards the whereabouts of the deceased, for the
deceased had accompanied the accused and at that juncture the accused had
replied that at the tea stall a Sikh boy came and the deceased went with
him. As per the prosecution case, the deceased and the accused are co-
villagers. In his statement recorded under Section 313 CrPC, the accused-
appellant totally denied to have accompanied the deceased. Learned trial
Judge and the High Court have placed reliance on the evidence of the
mother, Kalawati, PW-11, the brother, Subhash, PW-8 and Mahender, PW-10.
The cumulative reading and apposite appreciation of the said evidence
proves beyond reasonable doubt that the deceased was last seen with the
accused.
12. Another circumstance that has been proven is about the recovery of
knife, blood-stained clothes and the ashes of the burnt blanket. The
seizure witnesses Sukha, PW-7 and Nanak, PW-9 have proven the seizure. It
is submitted by the learned counsel for the appellant that police had
recorded the confessional statement of the accused-appellant at the police
custody and thereafter, as alleged, had recovered certain things which
really do not render any assistance to the prosecution, for the confession
recorded before the police officer is inadmissible. That apart, the
accused had advanced the plea that the articles and the weapon were planted
by the investigating agency. To appreciate the said submission in proper
perspective, we may profitably reproduce a passage from State of U.P. v.
Deoman Upadhyaya[5]:
"The expression, 'accused of any offence' in Section 27, as in Section
25, is also descriptive of the person concerned i.e. against a person
who is accused of an offence, Section 27 renders provable certain
statements made by him while he was in the custody of a police
officer. Section 27 is founded on the principle that even though the
evidence relating to confessional or other statements made by a
person, whilst he is in the custody of a police officer, is tainted
and therefore inadmissible, if the truth of the information given by
him is assured by the discovery of a fact, it may be presumed to be
untainted and is therefore declared provable insofar as it distinctly
relates to the fact thereby discovered. Even though Section 27 is in
the form of a proviso to Section 26, the two sections do not
necessarily deal with the evidence of the same character. The ban
imposed by Section 26 is against the proof of confessional statements.
Section 27 is concerned with the proof of information whether it
amounts to a confession or not, which leads to discovery of facts. By
Section 27, even if a fact is deposed to as discovered in consequence
of information received, only that much of the information is
admissible as distinctly relates to the fact discovered."
13. In State of Maharashtra v. Damu[6], while dealing with the
fundamental facet of Section 27 of the Evidence Act, the Court observed
that the basic idea embedded in the said provision is the doctrine of
confession by subsequent events, which is founded on the principle that if
any fact is discovered in a search made on the strength of any information
obtained from a prisoner, such a discovery is a guarantee that the
information supplied by the prisoner is true. It further stated that the
information might be confessional or non-inculpatory in nature, but if it
results in discovery of a fact it becomes a reliable information and,
therefore, the legislature permitted such information to be used as
evidence by restricting the admissible portion to the minimum.
14. Thus, if an accused person gives a statement that relates to the
discovery of a fact in consequence of information received from him is
admissible. The rest part of the statement has to be treated as
inadmissible. In view of the same, the recovery made at the instance of
the accused-appellant has been rightly accepted by the trial Court as well
as by the High Court, and we perceive no flaw in it.
15. Another circumstance which has been taken note of by the High Court
is that the blood-stained clothes and the weapon, the knife, were sent to
the Forensic Science Laboratory. The report obtained from the Laboratory
clearly shows that blood stains were found on the clothes and the knife.
True it is, there has been no matching of the blood group. However, that
would not make a difference in the facts of the present case. The accused
has not offered any explanation how the human blood was found on the
clothes and the knife. In this regard, a passage from John Pandian v.
State[7] is worth reproducing:
"The discovery appears to be credible. It has been accepted by both
the courts below and we find no reason to discard it. This is apart
[pic]from the fact that this weapon was sent to the forensic science
laboratory (FSL) and it has been found stained with human blood.
Though the blood group could not be ascertained, as the results were
inconclusive, the accused had to give some explanation as to how the
human blood came on this weapon. He gave none. This discovery would
very positively further the prosecution case."
In view of the aforesaid, there is no substantial reason not to
accept the recovery of the weapon used in the crime. It is also apt to
note here that Dr. N.K. Mittal, PW-1, has clearly opined that the injuries
on the person of the deceased could be caused by the knife and the said
opinion has gone unrebutted.
16. Another circumstance which needs to be noted is that Sukha, PW-7, a
taxi driver, has deposed that on 18.1.2003 about 11.00 p.m. while he was
going to Fatehabad for taking passengers, he saw a bullock cart parked in
front of the house of the accused and certain persons were tying a bundle
in a "palli". On query being made by him, the accused persons told him
that they are carrying manure to the fields. Though, this witness has
given an exaggerated version and stated differently about the time of
arrest, yet his testimony to the effect that he had seen the accused with a
bundle in "palli" at a particular place cannot be disbelieved. The maxim
"falsus in uno, falsus in omnibus", is not applicable in India. In Krishna
Mochi v. State of Bihar[8], it has been held thus:
"The maxim falsus in uno, falsus in omnibus has no application in
India and the witnesses cannot be branded as liars. The maxim falsus
in uno, falsus in omnibus (false in one thing, false in everything)
has not received general acceptance ... nor has this maxim come to
occupy the status of the rule of law. It is merely a rule of caution.
All that it amounts to, is that in such cases testimony may be
disregarded, and not that it must be disregarded."
17. In Yogendera v. State of Rajasthan[9], it has been ruled that the
Court must assess the extent to which the deposition of a witness can be
relied upon. The court must make every attempt to separate falsehoods from
the truth, and it must only be in exceptional circumstances, when it is
entirely impossible to separate the grain from the chaff, for the same are
so inextricably intertwined, that the entire evidence of such a witness
must be discarded. Thus viewed, the version of PW-7 to the extent that has
been stated hereinabove is totally acceptable and credible.
18. In a case based on circumstantial evidence, motive assumes great
significance as its existence is an enlightening factor in a process of
presumptive reasoning [See Kundula Bala Subrahmanyam and Anr. v. State of
Andhra Pradesh[10]]. In the case at hand, it had come in the evidence that
the accused-appellant was suspicious of the illicit relationship between
the deceased and his wife. The accused has taken the plea that he was
never married. It is noteworthy that the materials brought on record go a
long way to show that after the death of his brother he had entered into
the wedlock with his sister-in-law as per the tradition of the community,
that is, 'Kareva' marriage. The said facet of evidence has really not been
assailed or shaken. Thus, it has been established that there was suspicion
by the accused that the deceased was having relationship with his brother's
wife and that had aroused his anger. The said motive further strengthens
the case of the prosecution.
19. In view of the aforesaid analysis, we are of the considered opinion
that the appeal preferred by the appellant is totally devoid of merit and
is accordingly dismissed.
.............................J.
(Dipak Misra)
..........................., J.
(N.V. Ramana)
New Delhi
April 10, 2015
-----------------------
[1] 1989 Supp (2) SCC 706
[2] 1995 Supp (4 SCC 259
[3] (2007) 13 SCC 90
[4] (2001) 6 SCC 71
[5] AIR 1960 SC 1125
[6] (2000) 6 SCC 269
[7] (2010) 14 SCC 129
[8] (2002) 6 SCC 81
[9] (2013) 12 SCC 399
[10] (1993) 2 SCC 684
