Ananda Kumar vs State Of Kerala

G.Girish, J.

The judgment dated 31.10.2018 of the Additional Session’s Court-II, Pathanamthitta in S.C.No.634/2008, convicting and sentencing the accused therein under Sections 302 and 201 I.P.C., is under challenge in this Criminal Appeal. As per the aforesaid judgment the appellant was sentenced to life imprisonment and fine Rs.1,00,000/- with a default clause of rigorous imprisonment for six months. No separate punishment was awarded for the offence under Section 201 I.P.C.

The prosecution case is that the accused committed murder of two elderly persons by name Aleykutty and Prabhakaran at 10.00 a.m. and 10.45 a.m. respectively on 03.10.2007 at a remote place by the side of a graveyard, 200 meters away from the Municipal building, Pathanamthitta. It is stated that the accused had prior enmity with Aleykutty in connection with her allegation about the theft of sheep belonging to her. As a result of the above enmity, the accused is said to have strangulated Aleykutty by tightening the towel worn by her across her neck and thereafter dragged her to a nearby water-logged area and trampled her into the dirty water there. It is the further allegation that when Prabhakaran came there, calling Aleykutty by her name, the accused chased Prabhakaran with a tile piece in his hand, and hit the victim on his neck and loin portion with that tile piece, with the intention of causing death, leading to the collapse and death of that person. Thereafter, the accused allegedly dragged the dead body of Prabhakaran and disposed of it in the nearby bushes.

The Pathanamthitta police, upon getting information about the detection of the putrefied dead body of a male, at about 1.30 p.m. on 06.10.2007, registered Ext.P1 FIR under Section 174 Cr.P.C. and initiated proceedings. Later on, another FIR was registered by the Pathanamthitta police as Ext.P2 upon detection of the putrefied dead body of a woman at about 10.00 a.m. on 08.10.2007 at a waterlogged area near to the Municipal market. Those dead bodies were identified to be that of the destitutes Aleykutty and Prabhakaran, living in the Municipal land near to the graveyard. Soon the investigating officer filed reports before the Sub Divisional Magistrate as well as the Judicial Magistrate about the incorporation of the offence under Section 302 I.P.C. in connection with the death of the aforesaid persons on the basis of the facts revealed during investigation. The accused was arrested on 15.10.2007 and remanded to judicial custody. The investigating officer is said to have recovered the slippers worn by the accused at the time of commission of the crime, and the tile piece used for hitting Prabhakaran, on the basis of the disclosure statement made by the accused during custodial interrogation. The lungi and shirt worn by the accused at the time of commission of crime are also said to have been recovered by the investigating officer on the basis of the information received from the confession statement of the accused. After the completion of the investigation, the Circle Inspector of Police, Pathanamthitta laid the final report before the Jurisdictional Magistrate.

Upon commitment and making over of the case, the learned Additional Sessions Judge-II, Pathanamthitta, after considering the prosecution records and hearing both sides, framed charge against the accused under Sections 302 and 201 I.P.C. The charge was read over and explained to the accused, to which he impleaded not guilty. The prosecution examined 20 witnesses as PWs 1 to 20, and marked 36 documents as Exts.P1 to P36. Five material objects were identified as MO1, MO2 series and MO3 to MO5.

PW1 is the taxi driver in Pathanamthitta town who gave Ext.P1 first information statement about the detection of the body of a male in the bushes near to the graveyard of the Pathanamthitta Municipality at about 1.30 p.m on 06.10.2007. PW2 is the security worker of Pathanamthitta Municipality who gave Ext.P2 first information statement about the detection of the dead body of an elderly woman at the waterlogged area near to the Municipal market.

PW3 is a person who is said to have seen the accused at the place of occurrence at about 10:30 a.m. on 03.10.2007. According to him, the accused was a co-prisoner while he was undergoing detention at Sub Jail, Pathanamthitta, and that the accused had told him during that time that he used to steal the sheep of deceased Aleykutty and consume its meat. The statement given by PW3 to the Magistrate under Section 164 Cr.P.C. is marked as Ext.P3. PW3 had identified the accused in the dock.

PW4 was the salesman of a shoe mart in Pathanamthitta town from where the accused is said to have purchased the slippers marked as MO3 and MO4. However, he deposed before the trial court that he was not able to recollect the above purchase or to identify the accused since the above transaction took place long back.

PW5 is an Auto-rickshaw driver of Pathanamthitta town who signed as an attestor to Exts.P4 and P5 mahazars said to have been prepared at the time of recovery of MO3 and MO4 slippers. However, he confided before the trial court that he did not see the recovery of the aforesaid slippers, and that he had only signed in the said mahazars as demanded by the police.

PW6 is the son of deceased Prabhakaran who identified the body of that person, and PW7 is the daughter of deceased Aleykutty’s sister, who identified her dead body.

PW8 was the Village Officer, Pathanamthitta who prepared Exts.P6 and P7 scene plans. PW9 was the Municipal Councillor who affixed his signature as an attestor to Ext.P8 inquest. PW10 is the person who affixed his signature as an attestor to Ext.P9 inquest report.

PW11 was the Assistant Professor of Forensic Medicine of Kottayam Medical College, who conducted the autopsy of the body of deceased Prabhakaran, and issued Ext.P10 postmortem report. Ext.P11 chemical report of viscera of that body, was also marked through PW11.

PW12 is the attester to Ext.P12 mahazar prepared by the Investigating Officer at the time of recovery of MO2 series lungi and shirt, which were said to have been worn by the accused at the time of commission of crime. However, he clarified in his testimony that he signed the said mahazar at the road, and not inside the house of the accused as claimed by the prosecution.

PW13 was the Civil Police Officer of Pathanamthitta Police Station who had performed the body bandobast duty of deceased Aleykutty on 08.10.2007.

PW14 was the Judicial First Class Magistrate-I, Pathanamthitta who recorded Ext.P3 statement of PW3 under section 164 Cr.P.C.

PW15 was the Assistant Professor of Forensic Medicines, Government Medical College Hospital, Kottayam who conducted the postmortem examination of the body of Aleykutty. The postmortem report prepared by him is marked as Ext.P13. The chemical examination report of the viscera in connection with the aforesaid postmortem, is marked as Ext.P14 through PW15.

PW16 is the attester to Exts.P16 and P17 scene mahazars prepared by the Investigating Officer. So also, PW17 is another attester to Exts.P4 and P5 mahazars prepared by the Investigating Officer in connection with the recovery of MO3 and MO4 slippers.

PW18 is the scientific assistant of the Forensic Science Laboratory, Thiruvananthapuram, who examined the muddy soil found in the MO3 slipper and the sample soil sent separately by the Investigating Officer. In Ext.P18 report, PW18 stated that the soil particles contained in both the above items were similar.

PW19 was the Sub Inspector of Police, Pathanamthitta who registered Exts.P19 and P20 first information reports on 06.10.2007 and 08.10.2007 respectively, on the basis of the statements given by PW1 and PW2. He also sent Exts.P21 and P22 reports for the transfer of the aforesaid FIRs registered under Section 174 Cr.P.C from the Sub Divisional Magistrate Court to the Judicial First Class Magistrate Court, Pathanamthitta on getting information that the dead bodies found were of victims of murder. PW19 also filed Exts.P23 and P24 reports about the alteration of the section to Section 302 I.P.C.

PW20 was the Circle Inspector of Police, Pathanamthitta who took over the investigation on 11.10.2007, and arrested the accused on 15.10.2007. PW20 claims to have recovered MO1 tile piece allegedly used by the accused for assaulting deceased Prabhakaran. The lungi and shirt allegedly worn by the accused at the time of commission of the crime, and the slippers of the accused are also said to have been recovered by PW20 on the basis of the disclosure statements made by the accused during custodial interrogation. It is PW20, who laid the final report before the jurisdictional Magistrate.

After the completion of the prosecution evidence, the accused was questioned by the learned Additional Sessions Judge under section 313(1)(b) Cr.P.C. He took up a plea of absolute denial and stated that he was totally innocent.

Finding that there is no scope for acquittal under section 232 Cr.P.C, the learned Additional Sessions Judge afforded opportunity to the accused to adduce defence evidence. But the accused did not opt to adduce any evidence.

After hearing both sides and evaluating the evidence on record, the Trial Court arrived at the finding that the prosecution has succeeded in establishing that the accused committed the offence punishable under sections 302 and 201 I.P.C, and accordingly, passed the impugned judgment convicting and sentencing the accused. Aggrieved by the aforesaid conviction and sentence, the accused is now before this Court with this appeal.

Heard  Adv.Sri.V.Sethunath,  the  learned  counsel  for  the appellant, and Adv.Sri.Alex M.Thombra, the learned Senior Public Prosecutor.

The Trial Court arrived at a finding about the commission of the crime by the appellant by relying on the evidence of PW3, who is said to have seen the appellant in and around the places where the dead bodies of the victims were found, at the relevant time of the day when the crime was said to have been committed, coupled with the circumstantial evidence pertaining to the recovery of MO1 (Tile piece), MO2 series (Lungi and Shirt of the accused) and MO3 and 4 (slippers of the accused).

PW3, admittedly a habitual offender involved in more than 12 theft cases, is said to have seen the accused at the bushes behind the Municipal Market, Pathanamthitta when he went there for smoking Ganja. It is the further statement of PW3 that, after returning from the said bushes he again went to a nearby graveyard and saw the accused standing near the transformer. However, he had confided at the commencement of the chief examination itself that he did not remember the relevant date when he saw the accused as stated above. Thereupon the learned Public Prosecutor asked the leading question to PW3 with the suggestion, whether it was at 10.30 am on 03.10.2007, to which PW3 answered in the affirmative. PW3 had also stated that he was having acquaintance with the accused as a co-prisoner at Sub Jail, Pathanamthitta, and that the accused had, at that time, told him that he used to steal the goats of deceased Aleykutty. Apart from the above statement, there is absolutely nothing in the evidence of PW3 in connection with the crime involved in this case. The above evidence of PW3, according to us, is hopelessly inadequate to fasten the accused with the crime alleged in this case.

The accused, according to the prosecution, committed murder of Aleykutty by constricting a towel that she wore across her neck and thus strangulating her, and thereafter trampling her head into the shallow waste water behind the Municipal Market, Pathanamthitta. As per Ext.P13 Postmortem Certificate, the death of Aleykutty was due to the combined effect of constriction force sustained on the neck and drowning. Thus it is apparent from the aforesaid evidence that one of the main causes of the death of Aleykutty was the strangulation caused by the assailant by tightening the towel worn by her across her neck. PW19, the Sub Inspector who conducted the inquest of the body of Aleykutty, had stated before the Trial Court in unequivocal terms that the towel found across the neck of the dead body, was taken into custody at the time of the inquest. Ext.P8 inquest report also contains indication about the presence of a towel across the neck of the dead body of Aleykutty, and that the said towel is stated to have been taken into custody by the Officer who conducted the inquest. However, the aforesaid towel which the accused allegedly used for constricting the neck of Aleykutty, has not been brought in evidence as a material object for reasons best known to the prosecutor who conducted the case before the Trial Court. The Trial Judge also seems to have omitted to enquire on the above aspect, about the failure of the prosecution to bring on record the material object allegedly used by the assailant for strangulating Aleykutty.

It is the case of the prosecution that the accused gave Ext.P26 confession statement during custodial interrogation by the Police, disclosing that the tile piece which he used for inflicting injuries upon the neck and loin of deceased Prabhakaran, had been thrown to the bushes on the south-east portion of the house of Aleykutty. Based on the aforesaid disclosure statement, PW20, the Investigating Officer is said to have recovered MO1 tile piece as pointed out and handed over by the accused. Likewise, MO2 series lungi and shirt which the accused allegedly wore at the time of commission of the crime, are said to have been recovered by PW20 from the house of the accused on the basis of the disclosure statement given by the accused at the time of custodial interrogation. The recovery of MO3 and MO4 slippers, allegedly worn by the accused at the time of commission of crime, respectively from the waterlogged area where the body of Aleykutty was found, and the bushes where the body of Prabhakaran was found, is also heavily relied on by the prosecution as an inculpating circumstance linking the accused with the commission of crime.

As regards the evidence pertaining to the aforesaid recovery of MO1 to MO4, it has to be stated at the outset that the essential requirements to be fulfilled for placing reliance upon it, are lacking. The Apex Court has time and again laid down the law that for proving the recovery of material objects of a crime on the basis of the disclosure statements given by the accused in police custody, the presence of two independent witnesses right from the very beginning when the accused makes the confession statement, till the material objects are handed over by the accused to the investigating officer, is indispensable. It is now well established that if the investigating agency proposes to proceed with the recovery of material objects on the basis of the confession made by the accused in police custody, the presence of two independent witnesses shall be ensured from the very inception when the accused starts making the disclosure. The statements so made by the accused shall be recorded by the Investigating Officer in the presence of those independent witnesses. Thereafter, the independent witnesses should be present all along when the accused along with the Investigating Officer proceeds to the place of concealment, and the accused retrieves the material object, and it is handed over to the Investigating Officer. Furthermore, the Investigating Officer and the independent witnesses have to depose before the Court during trial about the whole course followed, right from the making of disclosures, till the retrieval and hand over of the material objects. It is trite that the Investigating Officer has to depose before the Trial Court the facts discovered in consequence of the information received from the accused. The proposition of law in this regard has been laid down by the Hon’ble Supreme Court in Subramanya v. State of Karnataka [ (2023) 11 SCC 255 ] and Ramanand v. State of U.P. [(2023) 16 SCC 510].

The evidence adduced by the prosecution about the recovery of MO1 to MO4 on the basis of the disclosure statements said to have been made by the accused, hopelessly lacks the essential requirements mentioned in the aforesaid paragraph. No witness had been examined to prove the recovery of MO1 Tile piece. Even the prosecution has no case that the witnesses (PW5, PW12 and PW17) cited and examined for proving the recovery of MO2 to MO4, had the occasion to witness the accused tendering statements to the Investigating Officer about the concealment of the aforesaid material objects. Nor had those witnesses stated that they saw the accused picking up the material objects from the places of concealment and handing over the same to the Investigating Officer. Except for a mere statement about the affixture of signatures in the papers handed over to them by the Investigating Officer, there is absolutely nothing stated by PW5, PW12 and PW17 about the recovery of MO2 to MO4 done by the Investigating Agency at the instance of the accused. It is also to be noted that the evidence tendered by PW20, the Investigating Officer, does not disclose any relevant fact discovered in consequence of the information received from the alleged confession of the accused. The mere retrieval of MO1 to MO4, by itself, cannot be termed as any discovery of fact coming under the purview of Section 27 of the Evidence Act.

As already stated, the evidence adduced by the prosecution does not disclose the presence of any independent witness at the time when MO1 tile piece is said to have been recovered on the basis of the information given by the accused in the portion of his confession statement marked as Ext.P26. Even if it is taken, for the sake of arguments, that MO1 was recovered on the basis of the statement in Ext.P26 that the accused had thrown it to the foliage on the south east of the house of deceased Aleykutty, it is not possible to link the accused with the crime in the absence of any evidence to show that the said tile piece was used to beat Prabhakaran to death. The failure of the Investigating Agency to get MO1 analyzed for the presence of blood stains, hair follicles or other biological particles from the body of the victim, has in fact foreclosed the scope of relying on the recovery of the said item for establishing the commission of the crime. Thus, it has to be stated that the case put forward by the prosecution about the recovery of MO1 tile piece can only be eschewed as a mere unsubstantiated version of the Investigating Agency which would not serve any purpose.

As regards the recovery of MO3 and MO4 slippers, it has to be stated that it would no way help the prosecution in linking the accused with the crime even if the infraction of the procedural requirements mentioned in paragraph No.27 (supra) is ignored. This is because of the reason that there is absolutely no piece of evidence to show that MO3 and MO4 slippers actually belonged to the accused, or that the said items were used by the accused for anything related to this crime. The prosecution made a futile attempt to show that MO3 and MO4 slippers were purchased by the accused from a shop by name Archana Shoe Mart in Pathanamthitta town. However, PW4, the salesman of that shop who is said to have sold those slippers to the accused, stated before the trial court in categorical terms that he does not remember whether the accused had purchased those slippers from him. Thus the efforts made by the prosecution in the above regard to connect the accused with MO3 and MO4 slippers were in vain since PW4 was not sure about the sale of those slippers to the accused.

It is true that the evidence tendered by PW18, the Scientific Assistant of Forensic Science Laboratory, Thiruvananthapuram based on Ext.P8 report about the similarity of the soil particles in MO3 slipper and the muddy soil send to the Laboratory as specimen soil, has been relied on by the prosecution to show that MO3 contained the soil and mud of the same nature as that of the place where the dead body of Aleykutty was found. However, the above similarity of the soil particles is of no consequence in the absence of any evidence about the accused using that slipper during the commission of the crime, or shortly before or after that. It is no wonder that MO3 contains soil similar to that of the place from which it was retrieved. Likewise, the evidence pertaining to the recovery of MO4 slipper would in no way help the prosecution in establishing their case.

The recovery of MO2 series lungi and shirt allegedly worn by the accused at the time of commission of crime, on the basis of Ext.P27 confession statement, is also not supported by the evidence of any independent witness. PW12, the person who is said to have signed Ext.P12 mahazar pertaining to the recovery of MO2 series, had made it clear in his statement before the trial court that he had signed in that mahazar at the road as requested by the police. Even otherwise, the recovery of MO2 series from the house of the accused is not having any significance since the prosecution was not in a position to garner any other piece of evidence to show that the above shirt and lungi contained any blood stain, mud or soil which were there at the crime scene. Thus, even if it is taken that MO2 series were recovered from the house of the accused, it would no way improve the prosecution case since there is absolutely nothing to connect the aforesaid material objects with the crime involved in this case.

Emulating the principles of the doctrine of confirmation by subsequent events, right from the celebrated precedents in Pulukury Kottaya v. Emperor (AIR 1947 PC 67), the Apex Court in  Bodhraj v. State of J&K, [(2002) 8 SCC 45] held as follows:

“ Emphasis was laid as a circumstance on recovery of weapon of assault, on the basis of information given by the accused while in custody. The question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Indian Evidence Act, 1872 (in short “the Evidence Act”) is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn. v. Bal Krishan [(1972) 4 SCC 659 : AIR 1972 SC 3] and Mohd. Inayatullah v. State of Maharashtra [(1976) 1 SCC 828 : 1976 SCC (Cri) 199 : AIR 1976 SC 483] . The words “so much of such information” as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as 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. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is the most-quoted authority for supporting the interpretation that the “fact discovered” envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Damu Gopinath Shinde [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301] .) No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which “distinctly relates to the fact thereby discovered”. But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.”

Having regard to the scope of the application of Section 27 of the Evidence Act outlined in the aforesaid dictum, at the most what the prosecution could bring out, even in an extreme situation in this case where the recovery is considered as established, is so much of the information as it relates distinctly to the fact thereby discovered. The information relating to the fact discovered in connection with the recovery of MO1 Tile Piece can only be the act of the accused throwing that tile piece to the bushes near the house of Aleykutty. In the absence of any evidence to show that deceased Prabhakaran lost his life as a result of the injuries suffered from MO1, the above information, even if taken as proved, could no way connect the accused with the crime. Likewise, the information pertaining to the act of accused leaving his slippers at the bushes and marshy area near the municipal market Pathanamthitta, cannot by itself link the accused with the crime when the prosecution has failed to bring home any evidence to the effect that the accused was found wearing those slippers on the date of offence. The act of accused handing over his lungi and shirt taken from his house to the Investigating Officer cannot by itself inculpate the accused when there is no evidence to establish that the accused was wearing the above lungi and shirt at the time of commission of the offence. To summarise, the evidence pertaining to recovery of MO1 to MO4 is of no help to the prosecution even if the inherent defects vitiating those recoveries are ignored.

It is the settled position of law that when the prosecution relies on circumstantial evidence to establish the commission of the crime by the accused, the evidence so adduced shall be capable of connecting all links, which would lead to the irresistible conclusion that there is no other possibility other than the one which is attributed against the accused.

The following excerpt from the judgment of the Apex Court in Subramanya v. State of Karnataka, [(2023) 11 SCC 255] articulates the law on this point:-

“Principles governing appreciation of circumstantial evidence

A three-Judge Bench of this Court in Sharad Birdhichand Sarda v. State of Maharashtra [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487] , held as under : (SCC pp. 184-85, paras 152-54)

“152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of M.P. [Hanumant v. State of M.P., (1952) 2 SCC 71] This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail v. State of U.P. [Tufail v. State of U.P., (1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ram Gopal v. State of Maharashtra [Ram Gopal v. State of Maharashtra, (1972) 4 SCC 625] . It may be useful to extract what Mahajan, J. has laid down in Hanumant case [Hanumant v. State of M.P., (1952) 2 SCC 71] : (SCC pp. 76-77, para 12)

‘12. 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 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.’

A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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

It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033] where the following observations were made : [SCC p. 807, para 19 : SCC (Cri) p. 1047]

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

(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,

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

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

(5) 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.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”

In an Essay on the Principles of Circumstantial Evidence by William Wills by T. and J.W. Johnson and Co. (1872), it has been explained as under:

“In matters of direct testimony, if credence be given to the relators, the act of hearing and the act of belief, though really not so, seem to be contemporaneous. But the case is very different when we have to determine upon circumstantial evidence, the judgment in respect of which is essentially inferential. There is no apparent necessary connection between the facts and the inference; the facts may be true, and the inference erroneous, and it is only by comparison with the results of observation in similar or analogous circumstances, that we acquire confidence in the accuracy of our conclusions.

The term PRESUMPTIVE is frequently used as synonymous with CIRCUMSTANTIAL EVIDENCE; but it is not so used with strict accuracy. The word “presumption”, ex vi termini, imports an inference from facts; and the adjunct “presumptive”, as applied to evidentiary facts, implies the certainty of some relation between the facts and the inference. Circumstances generally, but not necessarily, lead to particular inferences; for the facts may be indisputable, and yet their relation to the principal fact may be only apparent, and not real; and even when the connection is real, the deduction may be erroneous. Circumstantial and presumptive evidence differ, therefore, as genus and species.

The force and effect of circumstantial evidence depend upon its incompatibility with, and incapability of, explanation or solution upon any other supposition than that of the truth of the fact which it is adduced to prove; the mode of argument resembling the method of demonstration by the reductio ad absurdum.”

Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.”

As far as the present case is concerned, we are of the view that the prosecution has failed to establish the chain of circumstances to link the accused with the commission of crime. That being so, the conviction and sentence of the accused, as per the impugned judgment of the learned Additional Sessions Judge, have to be set aside.

In the result, the appeal stands allowed. The judgment dated 31.10.2018 of the Additional Sessions Court-II, Pathanamthitta in S.C.No.634/2008 is hereby set aside. The appellant/accused is ordered to be released forthwith, if his custody is not required in any other cases.