Rajan vs State of Kerala

Arijit Pasayat, C.J.—Questioning the conviction for an offence punishable u/s 302 of the Indian Penal Code, 1860 (inshort, the Code) and sentence of imprison ment for life and fine of Rs. 2,000/ with a default sentence of simple imprisonment for three months, this appeal has been filed by appellant Rajan (hereinafter referred to as accused). Learned Sessions Judge, Thodupuzha found the accused guilty, con victed and entenced him as aforesaid.

Filtering out unnecessary details,prosecution case is as follows : Mathradevi (hereinafter referred to as deceased) was the wife of one Thankavelu. They had two children from the wedlock. Accused developed illegitimate intimacy with deceased and they were living as husband and wife. Accused was unmarried. Subsequently, his parents arranged a marriage for him. Deceased raised protest and on account of that enmity, ac cused murdered her by trangulating with her saree on 7 3 1993 at 10.30 a.m. Place of occurrence is alleged to be Karimutty Wild life Forest, 750 metres away rom Munnar Udumalpet road in Marayoor Village. Since deceased was found missing, her brother Sankaran (PW 1) gave a complaint before Marayoor Police Station on the same day at about 7.30 p.m. and based on that complaint, Crime No. 18 of 1993 was registered under the caption "man missing". Subse quently, investigation was conducted nd it was revealed that accused was responsible for the death of deceased. After commitment by Judicial Magistrate of First Class,Devikulam, trial was conducted by learned Sessions Judge.

Fourteen witnesses were examined to further prosecution case. Since there was no eye witness to the occurrence, circumstantial evidence was pressed into service. The most important circumstance, according to prosecution, was that several persons had been accused and the deceased going together at about 10.30 a.m. on 7 3 1993.Thereafter, deceased was not seen alive and nobody knew about her whereabouts till her dead body was found. PW 1, the informant, identified the saree and blouse worn by deceased at the time of death. Thankavelu (PW 2) is a resident of Marayoor. Deceased was his legally wedded wife. He deserted the deceased on account of her illegitimate relationship with the accused, who was a frequent visitor of their house. He knew that the deceased was missing. Accused and the deceased were living together as husband and wife for about two years. Nainar Muhammed (PW 3) was the landlord of the house where accused and the deceased were staying. They lived in his house for about one week and thereafter on 7 3 1993 at 10.00 a.m., he saw the deceased going in the company of accused. At that time, they were carrying their articles in two bags. Subsequently, he saw the accused at Marayoortown, but deceased was not seen with him.He identified MO 3 as the studs worn by her. Devassy (PW 4) was a resident of Marayoor. On 7 3 1993, he had been accused and the deceased leaving the rented house at 10.00 a.m. He was told by them that they were shifting the residence. They were seen going towards Muthuvankudy through the forest land. Jairaj (PW 5) saw accused and the deceased on 7 3 1993 between 10.00 and 10.30 a.m. going to Muthuvankudy side. Atthe time of their departure, he was standing in front of his house. Later he saw the accused alone at about 1.00 p.m. at Marayoor. Pressing the last seen theory into service, accused was found guilty.

In support of the appeal, learned counsel submitted that this being a case of circumstantial evidence, care should have been taken by learned Sessions Judge to find out whether the circumstances high lighted by prosecution represented a complete chain of circumstances to implicate the guilt of the accused and rule out his innocence. That was not done. No injury could be found by the doctor at the time of post mortem on account of the highly decom posed state of the body. No authentic mate rial had been brought on record to show that the body was that of deceased. Further, it is submitted, unnecessary emphasis has been laid on the evidence of PW 13, the doctor. In essence, it is submitted, there is no acceptable material to find the accused guilty.

Learned counsel for the State, on the other hand, submitted that the theory of last seen together has been rightly pressed into service because of the relationship. Further,conduct of the accused in not even bothering to search for the deceased is an incriminating circumstance of considerable value. Fact that he was trying to create an alibi shows that his guilty mind was in full operation.

In cases where evidence is of circumstantial nature, circumstances from which conclusion of guilt is to be drawn should, in the first instant; 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.

Law regarding the nature and character of proof of circumstantial evidence has been stated by Apex Court in several cases,including the decision in Hanumant Vs. The State of Madhya Pradesh, Position was stated illuminatingly in the following words:

...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...it must be such as to show that within all human probability the act must have been done by the accused.

It is well stated that the circumstantial evidence in order to sustain the conviction must satisfy three conditions viz. (1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circum stances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) 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 it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused In Hanumant''s case (supra), it was also cautioned thus :

In dealing with circumstantial evidence there is always the danger that conjecture or suspicion may take the place of legal proof. It is therefore right to remember that incases 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.

Mahajan, J., as he then was, has also aptly referred to a passage containing the warning addressed by Baron Alderson to the jury in Reg. v. Hodge (1838) 2 Lew CC 227), which is stated as under :

The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete

Same was referred to in Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, and in Jaharlal Das Vs. State of Orissa, . In Dharam Das Wadhwani v. State of U. P. (1994) 3 SCR 607: (1993 Cri LJ 1181), it was held that "unlike direct evidence, the indirect light circumstances may throw, may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction". In Jagta Vs. State of Haryana, it was held thus :

The circumstances that the accused could not give about his being present on the scene of occurrence are hardly sufficient to warrant conviction.

A caution has to be borne in mind that in case depending largely upon circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion,however, strong, cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.

The "Panchsheel" of proof of a case based on circumstantial evidence, which is usually called five golden principles, have been stated by Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, . They read as follows (at page 1773; of CriLJ) :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from ''may be'' established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(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.

It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs though the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence.

It is settled principle of law that the circumstances relied upon by the prosecution must be fully established and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence, not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily makes out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford are as on able basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional linkwhich completes the chain. But, at the same time, it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all those facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive.

Before taking up the task, it may be stated that for a crime to be proved, it is not necessary that the crime must be seen to have been committed and must, in all circumstances, be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principle fact or ''factumprobandum'' may be proved indirectly by means of certain inferences drawn from ''factum probans'', that is, the probative or evidentiary fact. To put it differently, circumstantial evidence is not direct to the point in issue, but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together, they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.

It has been consistently laid down by Apex Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the in criminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh Vs. State of Rajasthan, ; Eradu and Others Vs. State of Hyderabad, ; Earabhadrappa v. State of Karnataka : AIR 1983 SC 446 : (1983 Cri LJ 846); State of U.P. Vs. Sukhbasi and Others, ; Balwinder Singh alias Dalbir Singh Vs. State of Punjab, and Ashok Kumar Chatterjee Vs. State of M.P., ).

The circumstances from which an inference as to the guilt of accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram Vs. State of Punjab, , it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of circumstances must be such as to negative the innocence of accused and bring the offences home beyond any reason able doubt.

In State of U.P. v. Ashok Kumar Srivastava 1992 Cri LJ 1104: (AIR 1992 SC it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of accused must be accepted.It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. What is important is that the possibility of the conclusions being consistent with innocence of accused must be ruled out.

In C. K. Raveendran Vs. State Of Kerala, , Apex Court held that law relating to circumstantial evidence requires that the prosecution must prove each of the circumstances, having a definite tendency pointing towards the guilt of the accused and though each of the circumstances by itself may not be conclusive but the cumulative effect of proved circumstances must be so complete that it would exclude every other hypothesis and unequivocally point to the guilt of the accused.

Theory of last seen together is one where two persons are seen together alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption as to the person alive being the author of death of the other can be drawn. Time gap should be such as to rule out possibility of somebody else committing the crime. The theory can be pressed into service effectively when the two persons last seen together were close friends or persons who are likely to been seen together giving due margin for the time gap. In the present case, the last seen theory is clearly applicable. Deceased and the accused were living together as husband and wife. They were seen together leaving with the articles to shift residence. Evidence of PWs. 2 to 5 clearly show that they gave out that to them. After about two hours, accused was seen alone and the deceased were not in his company. When they had gone out together with a definite purpose and the deceased was found missing, that is certainly a circumstance against the accused. Additionally, his absconding for a considerable length of time is a factor which is a material piece of evidence. It is on record that accused absconded till he reported at Marayoor Police Station.

Evidence of PW 13 has been stated to be suspicious. It is submitted that he has tried to build up an imaginary story about iaccused trying to build an alibi. From the evidence of PW 13, it appears that accused made a request to him to show his entry to I the hospital at an anterior point of time i.e.about 8.00 a.m. when he actually came,before him at about Noon. A Constable came''to enquire about one Rajan. Obvious purpose of this was to create an alibi. Subsequently, in the evening also, accused appears to have gone to this witness with complaints of ailment, which were found to be not true. It is submitted by learned counsel for appellant that the doctor clearly de posed that all these happened around 7.00 p.m. and when the FIR itself was lodged at 7.30 p.m. question of a Constable enquiring about accused prior to that time is impossible. This stand is clearly untenable because what the witness has stated is that while he was examining the accused, the Head Constable came. It has not been stated by PW 13 that Constable came before 7.30 p.m. Evidence of PW 11 shows that he came to the hospital at about 8.00 p.m. So the time factor is clearly reconciled. It is a matter of record that accused managed to give a slip to the Head Constable and absconded and subsequently appeared before the police.Case at hand bears fair amount of similarity with the one which was the subject matter of the decision in Jalalsab Shaikh Vs. State of Goa, Accused in that case was staying with deceased and could be traced only after ten days. He did not rush to the place where the dead body was found. That circumstance was held to be a factor providing the missing link.

Above being the position, learned trial Judge was justified in finding the accused guilty. We find no merit in the appeal and same is dismissed