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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1432-1434 OF 2011

STATE OF U.P. … … ...APPELLANT(S)

:VERSUS:

SUNIL … … ...RESPONDENT(S)

WITH

CRIMINAL APPEAL NOS.1423-1424 OF 2011

REKHA SENGAR … … ...APPELLANT(S)

:VERSUS:

STATE OF U.P. & ANR. … ...RESPONDENT(S)

J U D G M E N T

Pinaki Chandra Ghose, J.

1.Present appeals have been directed against the judgment

dated 23

rd

May, 2008 passed by the High Court of Judicature

at Allahabad in Criminal Appeal No.2968 of 2007 with

Criminal (Jail) Appeal No.2757 of 2007 and Capital Reference

No.12 of 2007, whereby judgment and order dated 04.04.2007

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passed by the learned Additional Sessions Judge, Etawah in

Sessions Trial No.424 of 2000 was set aside and the

accused-respondent was acquitted of the offence punishable

under Section 302 read with Section 34 of the Indian Penal

Code. Capital Sentence Reference for confirmation of the death

sentence was consequently rejected.

1.Brief facts necessary for adjudication of the present case

are as follows: One Kumari Rekha Sengar (PW-2), who is the

complainant in the present case, got a phone call from her

mother Smt. Shashi Prabha (now deceased) at about 11.00 to

11.30 pm on 02.09.2000 narrating that complainant’s

brother-in-law (Jeeja), namely, Suresh Pal Singh @ Guddu

along with his friend had come to their house in Etawah, Uttar

Pradesh, demanding Rs.50,000/- from her father and on

refusal to meet the demand, they became very angry. The

complainant herself had a talk with her brother-in-law and

tried to pacify him but she failed as he cut the telephone call.

Later when the complainant failed to have further

communication on telephone, she left for her parents’ house

from Delhi. On reaching her parents’ house she saw dead

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bodies of her father, mother, two sisters and their pet dog. Law

was set into motion after an FIR was registered by the

complainant on the basis of written report. The said Suresh

Pal Singh was arrested on 04.09.2000 and on the basis of the

confessional statement made by the accused, a knife,

blood-stained clothes and other articles were recovered by the

Investigating Officer (PW-7) in the presence of PW-4 and

recovery memo Ext. Ka-8 was made. Involvement of

respondent herein was also unearthed on the basis of the said

confessional statement. After conclusion of the investigation

charge-sheet was submitted before the learned Magistrate who

committed the case to the Court of Additional Sessions Judge,

Etawa, U.P. Accused Suresh Pal Singh died during the trial

and therefore criminal proceedings against him stood abated.

The Trial Court convicting the accused Sunil under Sections

302 & 429 read with Section 34 of IPC and awarded death

sentence to him and imposed a fine of Rs.500/- for offence

under Section 429 of IPC.

2.Being aggrieved, the accused-respondent preferred

Criminal Appeal No.2968 of 2007 and Criminal (Jail) Appeal

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No.2757 of 2007 before the High Court. Capital Sentence

Reference No.12/2007 was made by the Additional Sessions

Judge, Etawa. The High Court by its judgment and order

dated 23

rd

May, 2008 set aside the order of conviction and

sentence passed by the Trial Court and acquitted the

accused-respondent. Consequently, Capital Sentence

Reference No.12 of 2007 was rejected by the High Court.

Hence, the State of U.P. and the complainant are before us by

filing Criminal Appeal Nos.1432-1434 of 2011 and Criminal

Appeal Nos.1423-1424 of 2011, respectively.

3.We have noticed that the High Court had allowed the

criminal appeal of accused-respondent on the basis of failure

on the part of the prosecution to prove its case beyond all

reasonable doubt and on the basis of circumstantial evidence.

The High Court in its finding made four important

observations: (i) Evidence of PW-2 cannot be used against

respondent herein for the reason of improvement in statement;

(ii) The testimony of PW-1 showing his conduct as against

human nature is not worthy of credence for the reason that he

did not actually see the accused persons; (iii) Evidence of

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recovery of weapon and other articles may be relevant, but

could not be relevant against accused-respondent herein; and

(iv) Adverse inference cannot be drawn by the Court on refusal

to give specimen palm impression in spite of the order of the

Court.

4.We have heard the learned counsel for the parties at

considerable length. During the course of hearing, learned

counsel for the State of U.P. has submitted written arguments.

It is the submission of the learned counsel for appellants that

the case has been proved on the basis of circumstantial

evidence. PW-1 has proved the factum of both accused last

seen together outside the main door of house of deceased. This

witness also identified both the accused before the Trial Court.

Memo of recovered articles as a result of disclosure statement

was not only admissible against accused Suresh Pal (now

deceased) but is also admissible against accused-respondent

herein. It was further submitted that confessional statement of

the co-accused who died pending trial is relevant against the

accused-respondent also. He therefore relied upon the

judgment of this Court in the case of Haroon Haji Abdulla

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Vs. State of Maharashtra, AIR 1968 SC 832 = (1968) 2 SCR

641, wherein this Court observed:

“No doubt both Bengali and Noor Mohammad

retracted their statements alleging duress and

torture. But these allegations came months later and

it is impossible to heed them. The statements were,

therefore, relevant. Both Bengali and Noor

Mohammad were jointly tried with Haroon right to

the end and all that remained to be done was to

pronounce judgment. Although Bengali was

convicted by the judgment, the case was held abated

against him after his death. In Ram Sarup Singh and

Others v. Emperor-(1), J was put on his trial along

with L; the trial proceeded for some time and about

six months before the delivery of judgment, when the

trial had proceeded for about a year, J died. Before

his death J's confession had been put on the record.

R. C. Mitter, J. (Henderson, J. dubitante) allowed the

confession to go in for corroborating other evidence

but not as substantive evidence by itself. Of course,

the confession of a person who is dead and has

never been brought for trial is not admissible

under S. 30 which insists upon a joint trial. The

statement becomes relevant under s. 30 read with S.

32(3) of the Evidence Act because Bengali was fully

tried jointly with Haroon. There is, however, difficulty

about Noor Mohammad's statement because his trial

was separated and the High Court has not relied

upon it.”

5.Learned counsel for the State of U.P. concluded his

arguments by submitting that the prosecution version was not

only corroborated by medical evidence of PW-5 and PW-6 but

was also confirmed by FSL Report, which proved presence of

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human blood on the weapon of murder and clothes of both the

accused. Since comparison of finger-prints and foot-prints

were not clear, the Trial Court directed both the accused to

give fresh foot-prints and finger-prints. On refusal to comply

with this order by the accused for almost five years, even when

the same was upheld in criminal revision before the High

Court, the National Crime Records Bureau, New Delhi and the

Trial Court had rightly treated it as an adverse inference

against the accused-respondent herein.

6.Learned counsel appearing for the accused-respondent,

on the other hand, submitted that the recovery of bag and

articles (Ext.1) cannot be made admissible against co-accused

who is respondent herein. Prosecution has not produced any

witness or evidence to connect the accused-respondent with

recovered bag or articles. The complainant (PW-2) has also

improved her statement apropos presence of the

accused-respondent. But, surprisingly, there was no mention

of name or other details of the accused-respondent either in

the written complaint/FIR or in the statement made before

police. Learned counsel for the accused-respondent stoutly

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defended his client by concluding that drawing adverse

inference against the accused due to his refusal to give

specimen palm impression was not justified as earlier palm

impression report came in negative and application moved by

the accused praying for sending footprints and fingerprints to

some other laboratory was rejected by the Trial Court vide

order dated 09.01.2007.

7.After careful perusal of the evidence and material on

record, we are of the considered opinion that the following

question would play a crucial role in helping us reaching an

upright decision:

Whether compelling an accused to provide his

fingerprints or footprints etc. would come within the

purview of Article 20(3) of the Constitution of India

i.e. compelling an accused of an offence to be a

“witness” against himself?

It would be relevant to quote Article 20(3) of the Constitution

of India which reads as follows:

“Article 20: Protection in respect of conviction

for offences.

(1) … … …

(2) … … …

(3) No person accused of any offence shall be

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compelled to be a witness against himself.”

8.The answer to the question above-mentioned lies in

judicial pronouncements made by this Court commencing with

celebrated case of State of Bombay Vs. Kathi Kalu Oghad

& Ors., (1962) 3 SCR 10, wherein it was held:

“To be a witness’ may be equivalent to ‘furnishing

evidence’ in the sense of making oral or written

statements, but not in the larger sense of the

expression so as to include giving of thumb

impression or impression of palm or foot or fingers or

specimen writing or exposing a part of the body.

‘Furnishing evidence’ in the latter sense could not

have been within the contemplation of the

Constitution-makers for the simple reason that –

thought they may have intended to protect an

accused person from the hazards of self

incrimination, in the light of the English Law on the

subject – they could not have intended to put

obstacles in the way of efficient and effective

investigation into crime and of bringing criminals to

justice. The taking of impressions or parts of the

body of an accused person very often becomes

necessary to help the investigation of a crime. It is as

much necessary to protect an accused person

against being compelled to incriminate himself, as to

arm the agents of law and the law courts with

legitimate powers to bring offenders to justice.”

9.We may quote another relevant observation made by this

Court in the case of Kathi Kalu Oghad, (supra).

“When an accused person is called upon by the

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Court or any other authority holding an investigation

to give his finger impression or signature or a

specimen of his handwriting, he is not giving any

testimony of the nature of a ‘personal testimony’. The

giving of a ‘personal testimony’ must depend upon

his volition. He can make any kind of statement or

may refuse to make any statement. But his finger

impressions or his handwriting, in spite of efforts at

concealing the true nature of it by dissimulation

cannot change their intrinsic character. Thus, the

giving of finger impressions or of specimen writing or

of signatures by an accused person, though it may

amount to furnishing evidence in the larger sense, is

not included within the expression ‘to be a witness.”

10.In Selvi Vs. State of Karnataka, (2010) 7 SCC 263, a

three-Judge Bench of this Court while considering testimonial

character of scientific techniques like Narco analysis,

Polygraph examination and the Brain-Electric activation

profile held that

“145. The next issue is whether the results gathered

from the impugned tests amount to ‘testimonial

compulsion’, thereby attracting the prohibition of

Article 20(3). For this purpose, it is necessary to

survey the precedents which deal with what

constitutes ‘testimonial compulsion’ and how

testimonial acts are distinguished from the collection

of physical evidence. Apart from the apparent

distinction between evidence of a testimonial and

physical nature, some forms of testimonial acts lie

outside the scope of Article 20(3). For instance, even

though acts such as compulsorily obtaining specimen

signatures and handwriting samples are testimonial

in nature, they are not incriminating by themselves if

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they are used for the purpose of identification or

corroboration with facts or materials that the

investigators are already acquainted with. The

relevant consideration for extending the protection of

Article 20(3) is whether the materials are likely to

lead to incrimination by themselves or ‘furnish a link

in the chain of evidence’ which could lead to the

same result. Hence, reliance on the contents of

compelled testimony comes within the prohibition of

Article 20(3) but its use for the purpose of

identification or corroboration with facts already

known to the investigators is not barred.

146. It is quite evident that the narco analysis

technique involves a testimonial act. A subject is

encouraged to speak in a drug-induced state, and

there is no reason why such an act should be treated

any differently from verbal answers during an

ordinary interrogation. In one of the impugned

judgments, the compulsory administration of the

narco analysis technique was defended on the

ground that at the time of conducting the test, it is

not known whether the results will eventually prove

to be inculpatory or exculpatory. We have already

rejected this reasoning. We see no other obstruction

to the proposition that the compulsory administration

of the narco analysis technique amounts to

‘testimonial compulsion’ and thereby triggers the

protection of Article 20(3).”

11. Thus, we have noticed that albeit any person can be

directed to give his foot-prints for corroboration of evidence

but the same cannot be considered as violation of the

protection guaranteed under Article 20 (3) of the Constitution

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of India. It may, however, be noted that non-compliance of

such direction of the Court may lead to adverse inference,

nevertheless, the same cannot be entertained as the sole basis

of conviction.

12.In a case where there is no direct witness to prove the

prosecution case, conviction of the accused can be made on

the basis of circumstantial evidence provided the chain of the

circumstances is complete beyond all reasonable doubt. It was

observed by this Court in the case of Prakash vs. State of

Karnataka, (2014) 12 SCC 133, as follows:

“51. It is true that the relevant circumstances should

not be looked at in a disaggregated manner but

collectively. Still, this does not absolve the

prosecution from proving each relevant fact.

“6. In a case of circumstantial evidence, each

circumstance must be proved beyond reasonable

doubt by independent evidence and the

circumstances so proved, must form a complete chain

without giving room to any other hypotheses and

should be consistent with only the guilt of the

accused. (Lakhjit Singh Vs. State of Punjab, 1994

Supp (1) 173)”

13.It has also been the observation of this Court in Musheer

Khan Vs. State of M.P. , (2010) 2 SCC 748, apropos the

admissibility of evidence in a case solely based upon

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circumstantial evidence that

“55. Section 27 starts with the word `provided'.

Therefore, it is a proviso by way of an exception to Sections

25 and 26 of the Evidence Act. If the facts deposed under Sec-

tion 27 are not voluntary, then it will not be admissible, and

will be hit by Article 20(3) of the Constitution of India. [See

State of Bombay vs. Kathi Kalu Oghad, [AIR 1961 SC 1808].

56. The Privy Council in Pulukori Kottaya vs. King Emperor,

[1947 PC 67] held that Section 27 of the Evidence Act is not

artistically worded but it provides an exception to the prohibi-

tion imposed under the preceding sections. However, the ex-

tent of discovery admissible pursuant to the facts deposed by

accused depends only to the nature of the facts discovered to

which the information precisely relates.

57. The limited nature of the admissibility of the facts discov-

ered pursuant to the statement of the accused under Section

27 can be illustrated by the following example: Suppose a per-

son accused of murder deposes to the police officer the fact as

a result of which the weapon with which the crime is commit-

ted is discovered, but as a result of such discovery no infer-

ence can be drawn against the accused, if there is no evi-

dence connecting the knife with the crime alleged to have

been committed by the accused.

58. So the objection of the defense counsel to the discovery

made by the prosecution in this case cannot be sustained. But

the discovery by itself does not help the prosecution to sustain

the conviction and sentence imposed on A-4 and A-5 by the

High Court.”

14.From a perusal of the evidence on record, it could

without any hesitation be said that the basic foundation of the

prosecution had crumbled down in this case by not connecting

the respondent with the incident in question. And when basic

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foundation in criminal cases is so collapsed, the

circumstantial evidence becomes inconsequential. In such

circumstances, it is difficult for the Court to hold that a

judgment of conviction could be founded on the sole

circumstance that recovery of weapon and other articles have

been made.

15.After examining every evidence and material on record

meticulously and in the light of the judgments cited above, we

are of the considered opinion that the prosecution has

miserably failed to connect the occurrence with respondent

herein. Resultantly, the judgment and order passed by the

High Court setting aside of conviction order passed by the

Trial Court is hereby upheld.

16.The appeals are, accordingly, dismissed.

...................................J

(Pinaki Chandra Ghose)

...................................J

(Rohinton Fali Nariman)

New Delhi;

May 02, 2017.