Kerala High Court
Babu And Anr. vs State Of Kerala on 22 March, 2000
Equivalent citations: 2000CRILJ3199
Author: Arijit Pasayat
Bench: Arijit Pasayat, K.S. Radhakrishnan
JUDGMENT Arijit Pasayat, C.J.
1. Challenge in this appeal is to the conviction made and sentence awarded for offences punishable under Sections 302 and 376 read with Section 34 of Indian Penal Code, 1860 (in short, the IPC), by learned Sessions Judge, Palakkad. Appellants are hereinafter referred to as 'accused' by their respective names. A twelve year old girl was the victim of alleged rape and murder. On analysing the evidence, circumstantial in nature, learned trial Judge found the accused guilty of the offences. They were sentenced to undergo imprisonment for life for offence punishable under Section 302 read with Section 34, IPC and seven years for the offence punishable under Section 375 read with Section 34, IPC.
2. Prosecution case, in a nutshell, is as follows: On 17 11 1994, at about 2.00 p.m., victim was subjected to rape by first accused inside shrubby bushes near Mangalam Dam in Kizhakkencherry No. II village. After closing her mouth with his hand, she was taken inside the shrubs, and when she refused to yield to the lustrous advances of first accused, he inserted a stick inside the vagina of the girl and threatened her and thereafter committed rape on her. Second accused, who came to the place of occurrence on seeing commission of rape by first accused, also committed rape on her who was lying unconscious. Death was the result of such brutal acts of the accused persons.
3. During trial, it Was highlighted by prosecution that victim was the elder daughter of Varghese (PW 1). She was studying in 6th standard at Lourd Matha School, Mangalamdam, on the date of occurrence. During November 1994, school authorities fixed an annual excursion programme of the students to Ernakulam and Kochi. Deceased also was to go on the excursion trip. According to the programme arranged by school authorities, excursion party was to start early in the morning at 6.00 a.m. on 18 11 1994 from the school. Since the time of proceeding to destination was fixed as 6.00 a.m., parents of the deceased decided to send her to her maternal grandmother's house at Mangalamdam on 17 11 1994, so that she could stay there on that day and join with the excursion party in the early morning itself by going to the school from her grandmother's house. Idea was that victim could go back to her grandmother's house after the trip and after staying there on the day of return to go back to her house next day. Accordingly, the victim proceeded from her house at about 10.00 a.m. She walked through the Mangalamdam road to reach the house of her grandmother. Since deceased did not return to her house as scheduled, PW 1 set out in search of her. On way to his mother in law's house, he met his father in law and enquired about his daughter and when he got the information that the deceased had not reached her grandmother's house, naturally he went to the school and made enquiries. School authorities told him that the girl had not reached there and also did not go with the excursion party. Perplexed at this information, PW 1 started making enquiries and also went to the tea shop of Raj an (PW 2). He was told by PW 2 that he had seen the girl walking in front of his tea shop in between 1.00 and 1.30p.m. of 17 11 1994, towards her grandmother's house. In the light of this information, the search for the girl was intensified. He got information that a dead body was seen near Mangalamdam. On getting this information on 20 11 1994, he immediately rushed to the place where the dead body was found and identified the body to be that of his daughter. Thereafter, he went to the Mangalamdam Police Station and gave first information statement (Ext. PI) and investigation was undertaken by police. V. K. Thomas (PW 3) disclosed, during investigation, that on 17 11 1994 between 1.30 and 1.45 p.m., he and his friend Kuruvilla, who was coming with him saw the first accused walking behind the victim and second accused drying the net used for fishing by sitting on the eastern portion of the upper parapet of Mangalamdam. On getting this information, investigating officer also enquired from other persons and it was gathered that first accused had absconded from his native place. Further enquiry revealed that he had gone for a prayer at Divine Dyanakendra at Muringur. During questioning, first accused confessed to have kept the dress worn by him at the time of commission of crime at his house and on the basis of that information, the wearing apparels were seized. Second accused was also arrested as there were reliable information about his involvement in the crime.
4. Learned trial Judge found three circumstances, which, according to him, proved unerringly that accused were guilty. They are : (i) first accused and deceased were last seen together; (ii) conduct of first accused in disappearing immediately after occurrence; and (iii) his behaviour and conduct after the occurrence. According to him, these circumstances were sufficient to fasten the guilt on accused persons and, therefore, awarded the sentence of imprisonment for life by finding them guilty as aforesaid.
5. In support of the appeal, Mr. P. K. Ibrahim submitted that the circumstances highlighted by learned trial Judge are so brittle that by no stretch of imagination, they can be conclusive about the guilt of accused persons. Learned counsel for State, on the other hand, submitted that the accused were rightly convicted based on the circumstances.
6. 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 Govind Nargundkar v. State of Madhya Pradesh AIR 1952 SC 343 : (1953 Cri LJ 129). 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 settled that the circumstantial evidence in order to sustain the conviction must satisfy three conditions viz. (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances 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 (1953 Cri LJ 129) (SC) (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 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.
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 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 granting some fact consistent with its previous theories and necessary to render them complete.
Same was referred to in Shankarlal v. State of Maharashtra AIR 1981 SC 765 : (1981 Cri LJ 325) and in Jaharlal Das v. State of Orissa AIR 1991 SC 1388 : (1991 Cri LJ 1809). In Dharam Das Wadhwani v. StateofU.P. (1974) 3SCR607: (1974CrtLJ 1249), 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 v. State of Haryana AIR 1974 SC 1545 : (1974 Cri LJ 1010), 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.
7. 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.
8. 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 v. State of Maharashtra AIR 1984 SC 1622 : (1984 Cri LJ 1738). They read as follows : (Para 152) (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 through 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.
9. 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 make 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 a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which 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 reinforces 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.
10. 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 'factum probandum' 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.
11. 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 incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See : Hukam Singh v. State of Rajasthan AIR 1977 SC 1063: (1977 Cri LJ 639); Eradu v. State of Hyderabad AIR 1956 SC 316 : (1956 Cri LJ 559); Earabhadrappa v. State of Karnataka AIR 1983 SC 446 : (1983 Cri LJ 846); Stateof U.P. v. Sukhbasi AIR 1985 SC 1224 : (1985 Cri LJ 1479); Balwinder Singh v. State of Punjab AIR 1987 SC 350 : (1987 Cri LJ 330) and Ashok Kumar Chatterjeev. State of M.P. AIR1989 SC 1890 : (1989 Cri LJ 2124)).
12. 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 v. State of Punjab AIR 1954 SC 621 : (1954 Cri LJ 1645), it was laid down that where the case depends upon the conclusions 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 reasonable doubt.
13. In State of U. P. v. Ashok Kumar Srivastava 1992 Cri LJ 1104 : (AIR 1992 SC 840), 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.
14. Bearing these principles in view, the sustainability of reasoning given by learned trialJudge has to be examined. Evidence, on which reliance had been placed by prosecution, relates to that of PW 2, who stated that accused Babu had left his shop in haste after taking tea as if he had forgotten something somewhere. He also stated to have seen accused Babu proceeding towards Mangalam Dam through the road down below. Thereafter he saw accused Babu standing near the toddy shop near his shop. He stated that he had told PW 1 that after seeing the deceased, accused Babu went from his shop in haste towards the direction where the child was going. PW 3 has stated that accused Babu was going behind the victim at a distance of 5 6 links. He also stated that accused Raj an was drying the fishing net on the east of the Dam when he was coming from Mangalam Dam. PW 4 has stated that he had taken accused Babu to the Divine Meditation Centre at Chalakkudy on 20 11 1994 as he had disclosed to him about absence of mental peace and wanted to go to the meditation centre. PW 5 has stated that the day previous to the recovery of dead body also, accused Babu came to drink toddy. After the recovery of the dead body, he did not come to take toddy. According to the witness, accused Babu used to come to the toddy shop at 10.00 a.m. and sit there drinking till about 2.30 3.00 p.m. When he was asked about his absence, he did not give any answer. He was found mentally disturbed and consumed liquor without any control. It has to be noted that PW 1 is stated to have been told by Rajan that he saw his daughter on 17 11 1994 between 1.30 and 2.00 p.m. passing through the verandah of his shop going towards his wife's house. In cross examination, he stated that Rajan (PW 2) saw him passing through the top of Dam bund. In re examination, he stated that distance from PW 2's shop and the Dam bund is about 1 km. PW 2, in his evidence, stated that when deceased was going through the road on the top of the Dam, Thomas (PW 3) and Kuruvilla were coming from the opposite direction. PW 3 has stated that he and Kuruvilla saw accused Rajan drying his net on the east of the dam and when they reached earth dam and they saw deceased and accused Babu at a distance of 5 6 metres behind her. From the aforesaid evidence, it cannot be said that the victim and accused Babu were last seen together. 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 be seen together giving due margin for the time gap. In the present case, two persons were seen at a distance from each other on a public road. Last seen theory is clearly inapplicable to the present case. Other factors are the alleged distressed state of mind of accused Babu and his mental turmoil coupled with his absence after the dead body was recovered. Explanation for the absence has been offered by the prosecution itself. PW 4 has stated that much prior to the incident, accused had wanted to go to the divine centre because of disturbed marital life and in fact he had gone there. This is certainly not a circumstance based on which guilt can be fastened on the accused. Only other factor which was pressed into service is the disturbed state of mind of accused and his consuming liquor without control. As the prosecution evidence itself shows, he was mentally upset due to differences with his wife. In any event, that cannot be a decisive factor to find him guilty.
15. So far as accused Rajan is concerned, there is no evidence worth the name to rope him in. Having been seen near the dam catching fish is not a guilt pointing factor.
16. In the background of the legal and factual aspects highlighted above, inevitable conclusion is that prosecution has failed to establish guilt of the accused persons. Accordingly, their conviction and sentence stand vacated by allowing their appeal. They shall be set at liberty forthwith, if their custody is not required in connection with any other case.