Page 1 Reportable

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

Page 2 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

2

Page 3 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

3

Page 4 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

4

Page 5 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

5

Page 6 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

6

Page 7 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

Page 8 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

1

1989 Supp (2) SCC 706

2

1995 Supp (4 SCC 259

8

Page 9 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-

3

(2007) 13 SCC 90

9

Page 10 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

4

(2001) 6 SCC 71

10

Page 11 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

11

Page 12 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

5

AIR 1960 SC 1125

12

Page 13 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.

6

(2000) 6 SCC 269

13

Page 14 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 from

the fact that this weapon was sent to the

7

(2010) 14 SCC 129

14

Page 15 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

15

Page 16 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

assumesgreat significance as its existence is an

8

(2002) 6 SCC 81

9

(2013) 12 SCC 399

16

Page 17 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.

10

(1993) 2 SCC 684

17

Page 18 .............................J.

(Dipak Misra)

..........................., J.

(N.V. Ramana)

New Delhi

April 10, 2015

18