Supreme Court of India
BODH RAJ @ BODHA AND ORS.versusSTATE OF JAMMU AND KASHMIR
- Citation
- 2002 INSC 360
- Decided
- 3 September 2002
- Disposal
- Dismissed
- Bench
- RUMA PAL
Holding
The Supreme Court upheld the High Court’s convictions, finding that the evidence, including the weapon recoveries and eyewitness testimony, satisfied the requirements of circumstantial proof and that the procedural delays were justified.
Summary
The accused Bodh Raj and others were charged with murder of a moneylender under IPC sections 302 and 120B, alleging a conspiracy motivated by a large loan. The trial court convicted three of the accused and acquitted six, while the Jammu & Kashmir High Court set aside the acquittals of four and convicted them as well. The Supreme Court examined the admissibility of weapon recovery under Section 27 of the Evidence Act, the reliability of eyewitnesses, the effect of a one‑day delay in filing the FIR (Sec. 154 CrPC) and delayed witness examination (Sec. 161 CrPC), and the applicability of the "last seen" theory. It held that the High Court had correctly considered the material, that the circumstantial evidence formed a complete chain, and that the procedural delays were justified. Consequently, the Court upheld the High Court’s convictions and dismissed all appeals.
Issues considered
- Whether the evidence of eyewitnesses and weapon recoveries under Section 27 of the Evidence Act is sufficient to sustain conviction.
- Whether the one‑day delay in filing the FIR under Section 154 CrPC defeats the prosecution case.
- Whether the delay in examination of certain witnesses under Section 161 CrPC renders their testimony unreliable.
- Whether the "last seen" theory applies to infer the accused’s participation in the murder.
- Whether the High Court was justified in setting aside the trial court’s acquittals of four accused on the basis of circumstantial evidence.
Legislation cited
- Code of Criminal Procedure, 1973s. 154, s. 161
- Indian Evidence Act, 1872s. 25, s. 26, s. 27
- Indian Penal Code, 1860s. 120B, s. 302
Subjects
conspiracy to murdercircumstantial evidenceSection 27 Evidence Actdelay in FIRlast seen theoryeyewitness reliabilityappellate review
Judgment
BODH RAJ @ BODHA AND ORS. A
v.
STATE OF JAMMU AND KASHMIR
SEPTEMBER 3, 2002
[RUMA PAL AND ARIJIT PASAYAT, JJ.] B
Penal Code, 1860-Section 302 read with Section 120-B-A<;cused
af/egedly entering into conspiracy to murder one person-Trial court relying
on testimony of the witnesses, recovery of weapons and motive convicting C
three of the accused and acquitting others-High court maintaining conviction
of the three accused but setting aside acquittal of four accused on the basis
· of evidence leaving the other two accused-On appeal held in the facts and
circumstances of the case order of High Court justified and no interference
called for.
D
Evidence Act, 1872:
Possibility of t11'o views on basis of evidence-View favourable lo the
accused to be preferred-But when trial court fails to consider relevant
materials to arrive at the view, High court is duty bound to arrive at a correct
conclusion taking a different view-On facts High Court adopted a proper E
approach convicting the four accused acquitted by trial court.
Section 27-Evidence relating to recovery of weapons-Use of to fasten
guilt on accused-Discussed.
Last seen theory-Applicability of-Discussed. F
Code of Criminal Procedure, 1973 :
Section 154-FIR-Delay of one day in dispatch-Effect of-Such delay
is not unusual when proper explanation for delay is given.
G
Section 161-Witnesses-Delay in examination-Effect of-if there are
valid reasons for delay and court accepts the same then conclusions arrived
at not to be interfered with.
It is alleged that accused conspired to kill one S as they had taken
67 H
68 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.
A huge loan from him and were under pressure to return the loan amount.
On the fateful day A I aud A2 persuaded S to accompany them for selection
of the site. PW I and 2-propeirty dealer were also picked up. On their way
back deceased was attacked by some persons. A I and A2 remained silent
spectators. On the contrary they left the scene of occurrence leaving behind
B the deceased and PW I and 2. Weapons used by the accused were
recovered pursuant to the disclosures made by them, in the presence of
other witnesses. Prosecution witnesses identified accused persons. Different
eye-witnesses saw the occurrence either in full or partially. Trial Court
convicted accused Al, A2 and A6 under section 302 read with section 1208
IPC and acquitted A3, A4, AS, A7, AS and A9. High Court upheld the
C conviction of Al, A2 and A6. It set aside the acquittal of A3, A4, AS and
A7 and convicted them und1:r section 302 read with section 1208 IPC.
However it upheld the acquittal of AS and A9. Hence the present appeals
by the accused as well as the State.
Appellant contended that there was no conspiracy between the
D accused persons; that there are no independent witnesses and the so called
identification of the witne!ises was highly improbable; that having
discarded the evidence of PW7 courts erred in believing the evidence of
PW8 and 9; that the weapons recovered pursuant to the disclosure made
by the accused was highly improbable and requisite safeguard!i have not
E been adopted while making alleged recoveries; that the examination of eye-
witnesses PWI and 2 was bel~1ted and should not have been accepted; that
there was unexplained delay in sending the FIR; that the evidence of
prosecution witnesses vis-a-vis accused persons was improbable; that the
High Court should not have disturbed the findings of innocence of four
accused persons without any plausible reasoning and that where two views
F are possible on evidence, the one in favour of the accused was to be
accepted.
Respondent contended that there is no reason as to why the witnesses
would depose falsely against A I and A2 who are known to them and there
G is nothing irregular or illegal in the procedure adopted while effecting
recovery pursuant to the disclosure made by the accused persons.
Dismissing the appeal, the Court
HELD: I. There is some evidence to establish the motive that is
indebtedness of the accused to the deceased and also evidence of PWI and
H 2 substantiates the accusations. Both PWI and PW2 stated that in their
BODHRA.l@BODHA v. STATEOFJAMMUANDKASHMIR 69
presence deceased was attacked by four-five persons armed with weapons, A
the deceased started running and assailants followed him and assaulted
him. The presence of PWI and 2 at the place of occurrence is fortified as
they were witnesses to the seizure memo recorded by police immediately
after the incident. Trial court and High Court has rightly accepted the
evidence of PW I and 2 and there is no reason to discard their evidence.
PWs 8, 9 and 18 also substantiate the accusations. PW 18 stated to have B
seen a white car passing in front of the shop carrying 7 to 8 persons out
of which he identified one of them who was dead. He further stated about
having seen the deceased in the company of Al and A2 and also about
the statement of Al and A2 that there was some scuffle between some boys
and the deceased at the land, which they had gone to see, and in that scuffle C
killing took place. The reason for this was stated to be pressure on Al
and A2 to return the money. PW9 also stated to have seen the deceased
being chased and he claimed to have seen the deceased firing. He stated
about Al and A2 giving 'lalkara' that the deceased should be killed and
should not escape and also that Al had fired some shots in the air and a
white car was standing there. He identified A3, A4, A7, AS and A9. Even D
PW8 stated about the occurrence. The deceased's employee also saw both
Al and A2 in the company of deceased. Also the land which was to be
seen by the deceased for setting up the flour mill by Al and A2, was only
known to Al and A2. Further the white car which was used in the incident
was found discarded after it had met with an accident and is stated to be E
a get away car. 180-E-H; 81-D-F; 83-HI
Hukam Singh v. State of Rajasthan, AIR (1977) SC 1063; Eradu and
Ors. v. State of Hyderabad, AIR (1956) SC 316; Earabhadrappa v. State of
Karnataka. AIR (1983) SC 446; State of U.P. v. Sukhbasi and Ors.. AIR
(1985) SC 1224; Ba/winder Singh v. State of Punjab. AIR (1987) SC 350; F
Ashok Kumar Chatte1jee v. State of M.P., AIR (1989) SC 1890; Bhagat Ram
v. State of Punjab, AIR (1954) SC 621; C. Chenga Reddy and Ors. v. State
of A.P., 11996110 SCC 193; Pada/a Veera Reddy v. State of A.P. and Ors.
AIR (1990) SC 79; State of U.P. v. Ashok Kumar Srivastava. (199.t) Crl.LJ
1104; Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh G
AIR (1952) SC 343 and Sharad Birdhichand Sarda v. State of Maharashtra
AIR (1984) SC 1622, referred to.
'Wills' by Sir Alfred Wills- referred to.
2. There can be no· dispute with the proposition that when two views H
70 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.
A are possible on the evidence, the one in favour of the accused has to be
preferred. But where the relevant materials have not been considered to
arrive at a view by trial court, certainly High Court has a duty to arrive
at a correct conclusion taking a view different from the one adopted by
trial court. In the instant case, the course adopted by High Court is proper.
For the purpose of convicting four appellants-A3, A4, AS and A 7 acquitted
B by trial court but convicted by High Court, trial court held the evidence
of PW 18 not reliable but did not give any cogent reason for the same.
Recoveries were made pursuant to the disclosure made by them. In view
of the evidence of the witnesses examined by the prosecution in that regard,
the submission that due procedure was not followed, there is nothing illegal
C ruling out its acceptance. Furthermore a pant was recovered from the
house of AS which had holes indicating passage of bullet. PW 22-chemist
stated that AS had gone to purchase medicine to be applied to the injury.
Further even if it is accepted that evidence of PW7 is not reliable, thus
identification of A-S by PW 7 is no consequence, the evidence relating to
recovery established by the evidence of PWIS cannot be lost sight of. Trial
D Court held the evidence of PWS and 9 unreliable. High Court analyzed
their evidence in detail and held it to be reliable. It is of significance that
practically there was no cross-examination on the recovery aspect. Thus
there is no reason to differ with High Court in that regard. 184-B-G; 85-Al
E Delhi Admn. v. Balakrishan, AIR (1972) SC 3; Md Inayatullah v. State
of Maharashlra, AIR (1976) SC 483; Palukuri Kotayya v. Emperor, AIR
(1947) PC 67 and State of Maharashtra v. Danu Gopinath Shirde and Ors.,
(2000) Crl.L.J 2301, referred to .
..
3. The last seen theory comes into play where the time gap between
F the point of time when the accused and deceased were seen last alive and
when the deceased is found clead is so small that possibility of any person
other than the accused bein1~ the author of crime becomes impossible. It
would be difficult in some cases to positively establish that the deceased
was last seen with the accusf:d when there is a long gap and possibility of
other. persons coming in between exists. In the absence of any other positive
G evidence to conclude that accused and deceased were last seen together, ..
it would be hazardous to come to a conclusion of guilt in those cases. In
the instant case there is positive evidence that deceased, A-I and A-2 were
seen together by prosecution witnesses. 18S-B-DI
4. A day's delay in sending the FIR cannot be said to be unusual
H when proper explanation has been offered for the delay. Thus the plea of
BODH RAJ @BOD HA v. STATE OF JAMMU AND KASHMIR [ARIJIT PASAYAT, J.] 7J
delayed dispatch of FIR is without any substance. 185-Fl A
5. It cannot be laid down as a rule of universal application that if
there is any delay in examination of a particular witness the prosecution
version becomes suspect. It would depend upon several factors. If the
explanation offered for the delayed examination is plausible and acceptable
and the court accepts the same as plausible, there is no reason to interfere B
with the conclusion. In the instant case, it has been recorded that there
was valid reason for the subsequent and/or delayed examination and such
conclusion was arrived at after analyzing the explanation offered.
185-H; 86-A, Bl
Ranbir and Ors. v. State of Punjab, AIR (1973) SC 1409, referred to. C
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
921 of 2000.
From the Judgment and Order dated 31.7.2000 of the Jammu and D
Kashmir High Court in Cr!. Acq. A. No. 5 of 1999.
WITH
Crl. A.Nos. 791, 792 and 837 of 200 I.
Sushi! Kumar, U.R. Lalit, M. Aslam Gooni, Adv. Genl. for J & K, E
Rajiv K. Garg, A.D.N. Rao, R.K. Joshi, P.N. Puri and Anis Suhrawardy for
the appearing parties.
The Judgment of the Court was delivered by
ARIJIT PASA YAT, J. These four appeals relate to a Division Bench F
judgment of.the Jammu and Kashmir High Court dated 31.7.2000. While
Criminal Appeal Nos. 921/2000, 791/2001, 792/200I have been filed by the
accused, Criminal Appeal No. 837/2001 has been filed by the State.
Ravinder Kumar (accused No. I), Ashok Kumar (accused No. 2) and
Rajesh Kumar (accused No. 6) were convicted by the Trial Court while G
Bodhraj (accused No. 3), Bhupinder (accused No. 4), Subhash Kumar (accused
No. 5) and Rakesh Kumar (accused No. 7) were acquitted by the Trial Court,
but the High Court set aside their acquittal and convicted them. Rohit Kumar
(accused No. 8) and Kewal Krishan (accused No. 9) were acquitted by the
Trial Court and their acquittal has been upheld by the High Court. Another H
72 SUPREME COURT REPORTS (2002] SUPP. 2 S.C.R.
A accused i.e. Kishore Kumar was acquitted by the Trial Court. He having died
during the pendency of the appeal before the Hi_gh Court, the appeal against
him was held to have abated. Accused Rajesh Kumar has not preferred any
appeal against the conviction a~: upheld by the High Court.
Accused No. I and accused No. 2 and accused No. 2 having been
B convicted under Section 302 read with Section 120-B of the Indian Penal
Code. I 860 (in short the ;!PC') were sentenced to suffer imprisonment for
life and pay a fine of Rs. 20,000 each. It was stipulated that for default in
paying the fine, each had to suffer another year of imprisonment. Similar was
the case with accused No. 6. So far as the accused Nos. 3, 4, 5 and 7 are
C concerned, the High Court convicted and sentenced them at par with the
other three accused.
Factual scenario as highlighted by the prosecution is as follows:
Swaran Singh @ Pappi (hereinafter referred to as the 'deceased') was
D running a finance companY: Accused No. 2 (Ashok Kumar) and accused No.
I (Ravinder Kumar) had taken huge amounts as loan from the deceased.
They suggested to the deceased to enter into a financial arrangement. On the
fateful day i.e. 3rd August, I 994, deceased went to his business premises.
After about I0 minutes of his arrival accused -Ravinder Kumar also reached
E his office. As the deceased had brought some money from his house which
was to be deposited in a bank, Darshan Singh (PW I 5) an employee was
asked to make the deposit. Since: no vehicle was available, Ravinder Kumar
gave the key of his car to Darshan Singh. The registration number of the car
is CHO I 5408. Darshan Singh left the office around I I .30 a.m. and returned
around 1.30 p.m. On his return, Darshan found the deceased in the company
F of accused Ravinder Kumar and Ashok Kumar. He returned the key of the
car to Ravinder Kumar. After about I 0/15 minutes, deceased and accused-
Ashok Kumara left the office. At the time of his departure, deceased told
Darshan to take the food which was to come from his house, as they were
going out to have food. Accused-Ashok Kumar and the deceased went to
G Hotel Asia for taking their food. Later on, accused -Ravinder Kumar joined
them. All the three after taking food went to the business premises of Gian
Singh (PW-I) who was a property dealer .and broker. He was informed that
they were interested in purchasing some land for setting up a flour mill.
Ravinder and Ashok Kumar persuaded the deceased to accompany them for
the selection of the site. Along with Gian Singh (PW-I), ancther property
H dealer was also picked up. This was done as PW-I wanted to go to the site
BODH RAJ @BODHA 1·. STATE OF .IAMMU AND KASHMIR [ARl.llT PASAYAT. J.] 73
in question along with Pratap Singh (PW-2) who was his business pai1ner. A
·All of them went to village Dhiansar where the land was situated. They went
by car No. JK-028 566. As accused-Ravinder Kumar appeared to be in
extreme haste, he told that site has been approved and PWs. 1 and 2 were
told that they would settle the matter at their business premises. When they
were returning, the deceased was attacked by some persons (later on identified B
as accused No. 3 to 10). The accused I and 2 remained silent spectators and
even did not pay any heed to the pitiful plea of the deceased to bring the car
so that he can escape the attacks. On the contrary, they left the scene of
occurrence leaving behind the deceased and PWs. 1 and 2. They did not
report the matter to the police and even though they claimed to be friends of
the deceased, did not even infonn family members of the deceased. They C
owed huge amounts and issued cheques for which they had made no provision.
Ashok Kumar made use of the cheque book of his wife and issued a cheque
in respect of her bank account, thought, the same was not operated for quite
some time. Accused -Rajesh Kumar's presence was established as later on,
a licensed revolver belonging to accused-Ravinder Kumar was recovered at
the instance of Ravinder Kumar. The license of the revolver was seized from D
the house of Ravinder Kumar and father of the said accused produced the
same before the police in the presence of witnesses. Pistol of the deceased
was also recovered at his instance. The license in respect of the pistol was
seized on personal search of the deceased at the spot of occurrence. One Hari
Kumar (PW-18) stated that accused Ravinder Kumar and Ashok Kumar made E
a statement before him that they had got the deceased killed because he was
demanding money from them. From the fact that the land was to be selected
was only known to accused Ravinder Kumar and Ashok Kumar, an inference
was drawn that it was these two accused who had hired the assailants and
planted them well in advance for the ultimate elimination of deceased. The
. fact that accused Ravinder Kumar left the office of the deceased earlier and F
joined them at the Hotel was considered significant, as the intervening period
was utilized by him to inform the assailants as to where they would be taking
the deceased for the assaults being carried out. Accused Rajesh Kumar and
Subhash Kumar had also suffered bullet injury which was on account of the
firing done by the deceased while he was trying to save his life. G
Recoveries of various weapons used by assailants were made pursuant
to the disclosures made by the accused Bodhraj, Bhupinder, Subhash Kumar
Rajesh Kumar and Rakesh Kumar. Recoveries were witnessed by several
witnesses. Bodhraj was identified by Jhuggar Singh (PW 6) and Santokh
Singh (PW 7). Bhupinder Singh was identified by Hari Kumar (PW 18) and H
74 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.
.A Gurmit Singh. Similar was the case with accused Subhash Kumar. Rajesh
Kumar was identified by Ranjit Sharma (PW 23) and Hari Kumar (PW 18):
Accused Rakesh Kumar was identified by Ranjit Sharma (PW 23) and Gurmit
Singh, was not examined in Court. Accused Bodhraj, Bhupinder, Rakesh
Kumar, Rohit and Kewal Krishan were identified by Nainu Singh (PW 9)
B while Subhash Kumar and Rajesh Kumar were identified by Santokh Singh
(PW 7) and Surjit Singh (PW 8). The identification was done on two dates
i.e. 11.8.1994 and 16.8.1994. Different eye-witnesses claimed to have seen
the occurrence either in full or partially. PWs. 1, 2, 7, 8 and 9 were really
the crucial witnesses. Santokh Singh (PW 7) was disbelieved by Trial Court
as well as by the High Court.
c In order to establish the pleg that conspiracy was hatched, reliance was
placed on the plea of Kapur Chand who was not examined in Court. Several
other circumstances were highlighted by the prosecution, to establish the plea
of conspiracy. It was submitted that nobody knew except PW-2 where the
land was. If he was the person who had hired the assailants, they (meaning
D PW 1 and deceased) would not have gone empty handed. But, knowing
particularly well that the deceased was always armed, accused Ravinder
purchased a car which was used a~. a get away car but never transferred it to
his name. It was, however, conceded by the learned Advocate General
appearing before the Trial Court that there was no direct evidence of
E conspiracy. Police seems to have prnceeded to reach the spot on getting some
reliable information.
In order to attach vulnerability to the judgment of the High Cou11,
several poi'!ts were urged by the learned counsel for the accused persons. It
was pointed out that there was no evidence of any conspiracy. The only
p witness Kapur Chand who is alleged to have stated before the police about
the conspiracy was not examined. Even the Investigating Officer has admitted
that there. was no direct evidenc1! of conspiracy. There was no evidence
collected against the accused persons to link them with the crime till 11.8.1994
when suddenly material supposed to have come like a flood-gate. Initiation
of action by the police is also shrouded in mystery. It has not been disclosed
G in either Trial Court or High Court as to how the police received information
about the killing and arrived at the spot. Though it was claimed at some point
of time that a telephone call was suppo~edly made, but the FIR was registered
on the bias of reliable sources. There are no independent witnesses. It is
surprising as alleged killing took place in the evening time at a highly populated
H place. The so called identification of the witnesses is highly improbable.
BODH RA.I@ BODHA v. STATE OF JAMMU AND KASHMIR [ARl.llT PASAYAT. J.) 75
Additionally, having discarded the evidence of PW-7 the Courts erred in A
believing the evidence of PWs. 8 and 9 who stand on the same footing. The
presence of these witnesses is highly doubtful. Their behaviour was un-natural
and there is no corroborative evidence. They are persons with criminal records.
Since their presence is doubtful, identification, if any, done by them becomes
ipso jl1c10 doubtful. The recoveries purported to have done pursuant to the B
disclosure made by the accused persons is highly improbable and requisite
safeguards have not been adopted while making alleged recoveries. The case
against four of the accused persons who were acquitted ·by the Trial Court
rests on circumstantial evidence. The approach to be adopted by the Court
while dealing with circumstantial evidence was kept in view by the Trial
Court. Unfortunately, the High Court did not do so. It was further submitted C
that there was no complete cliain of circumstances established which ruled
out even any remote possibility of anybody else than the accused persons
being the authors of the crime. The examination of so-called eye-witnesses
PWs I and 2 was belated and, therefore, should not have been accepted. The
evidence of PWs vis-a-vis accused persons is so improbable that no credence D
should be put on it. The High Court should not have disturbed the findings
of innocence of four accused persons without any plausible reasoning.
On the contrary, learned counsel for the prosecution submitted that the
background facts and the evidence on record has to be tested with a pragmatic
approach. The situation which prevailed in the area at the relevant time E
cannot be lost sight of. Accused I and 2 are very influential persons. The
witnesses were naturally terrified. It has come on record that witnesses PWs
I and 2 were too terrified even to depose and had asked for police protection.
There is no reason as to why the witnesses would depose falsely against
accused I and 2 who are kn-0wn to them. There is nothing irregular or illegal
in the procedure adopted while effecting recovery pursuant to the disclosure F
made by the accused persons.
Before analyzing factual aspects 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 G
examining before the Court those persons who had seen its commission. The
offence can be proved by circumstantial evidence also. The principal fact or
factum probandum may be proved indirectly by means of certain inferences
drawn from factum probans, that is, the ·evidentiary facts. 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 H
76 SUPREME COURT REPORTS (2002) SUPP. 2 S.CR.
A 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 this 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
B incompatible with the innocence of the accused or the guilt of any other
persons. (See Hukam Singh v. S1ate of Rajasthan, AIR (1977) SC 1063),
Eradu and Ors. v. State of Hyderabad, AIR ( 1956) SC 316, Earabhadrappa
v. Stale of Karnataka, AIR (1983) SC 446, State of UP. v. Sukhbasi and
Ors., AIR (1985) SC 1224, Ba/winder Singh v. State of Punjab, AIR (1987)
C SC 350, Ashok Kumar Cha1te1jee v. State of MP., AIR (1989) SC 1890. The
circumstances from which an inference as to the guilt of the 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), it
was laid down that where the case depends upon the conclusion drawn from
D circumstances the cumulative effect of the circumstances must be such as to
negative the innocence of the accused and bring the offences home beyond
any reasonable doubt.
We may also make a reference to a decision of this Court in C. Chenga
.E Reddy and Ors. V. State of A.P., (1996] IO sec 193, wherein it has been
observed thus:
"In a case based on circumstantial evidence, the settled law is
that the circumstances from which the conclusion of guilt is drawn
would be fully proved and such circumstances must be conclusive in
F nature. Moreover, all the circumstances should be complete and there
should be no gap left in the chain of evidence. Further the proved
circumstances must be c:onsistent only with the hypothesis of the
guilt of the accused and totally inconsistent with his innocence ..... "
In Padala Veera Reddy v. State of A.P. and Ors., AIR (1990) SC 79,
G it was laid down that when a case rests upon circumstantial evidence, such
evidence must satisfy the following tests;
(I) the circumstances from which an inference of guilt is sought to
be drawn, must be cogently and firmly established,
H (2) those circumstances, should be of a definite tendency unerringly
BODH RA.I @BODHA "·STATE OF JAMMU AND KASHMIR [ARl.llT PASAYAT. J.] 77
pointing towards guilt of the accused, A
(3) 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
B
(4) the circumstantial evidence in order to sustain conviction must be
complete and incapable of explanation of any. other hypothesis than
thai 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.
c
In State of UP. v. Ashok Kumar Srivastava, (1992) Crl.L.J.1104, it was
pointed out that great case must be taken in evaluating circumstantially
evidence and if the evidence relied on is reasonably capable of two inferences,
the one in favour of the 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 D
only with the hypothesis of guilt.
Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence"
(Chapter VI ) lays down the following rules specially to be observed in the
case of circumstantial evidence: (I) the facts alleged as the basis of any legal E
inference must be clearly proved and beyond reasonable doubt connected
with the factum probandum, (2) the burden of proof is always on the party
who asserts the existence of any fact, which infers legal accountability, (3)
in all cases, whether of direct or circumstantial evidence the best evidence
must be adduced which the nature of the case admits; (4) in order to justify
the inference of guilt, the inculpatory facts must be incompatible with the F
innocence of the accused and incapable of explanation, upon any other
reasonable hypothesis than that of his guilt, (5) if there be any reasonable
doubt of the guilt of the accused, he is entitled as of right to be acquitted"
There is no doubt that conviction can be based solely on circumstantial
evidence but it should be tested by the touch-stone of law relating to G
circumstantial evidence laid down by the this Court as far back as in 1952.
J
In Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh,
AIR (1952) SC 343, wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a H
78 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.
A circumstantial nature, the circumstances from which the conclusion
of guilt is to be drawn 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,
B . 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."
C A reference may be made to alter decision in Sharad Birdhichand
Sarda v. State of Maharashtra, AIR (1984) SC 1622. Therein, while dealing
with circumstantial evidence, it has been held that onus was on the prosecution
to prove that the chain is complete and the infirmity of lacuna in prosecution
cannot be cured by false defence or plea. The conditions precedent in the
words of the this Court, before conviction could be based on circumstantial
D evidence, must be fully established. They are:
(I) the circumstances from which the conclusion of guilt is to be
drawn should be fully established. The circumstances concerned must
or should and not may be established,
E (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,
F
(4) they should excludee very possible hypothesis except the. one to
be proved, and
(5) there must be a chain of evidence so compete as not to leave any
reasonable ground for the conclusion consistent with the innocence
G of the accused and must show that in all human probability the act
must have been do-ne by the accused.
Emphasis was laid as a circumstance on recovery of weapon of assault,
on the basis of informations given by the accused while in custody. The
question is whether the evidence relating to recovery is sufficient to fasten
H guilt on the accused. Section 27 of the Indian Evidence Act, 1872 (in short
BODll RA.I Iii' BODHA l'. STATE OF JAMMU AND KASHMIR [ARIJIT PASAYAT . .I.] 79
'the Evidence Act') is by way of proviso to Sections 25 to 26 and a statement A
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 succuinctly dealt with by the this Court in Delhi Admn. v. Balakrishan,
AIR ( 1972) SC 3 and Md. /11aya111/lah v. State of' Maharashtra, AIR (1976)
SC 483. The words "so much of such information" as relates distinctly to B
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
infonnation 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. C
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 consequences of the preceding D
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 E
in cases where a person, who is subsequently taken in to 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
infonnation which is otherwise admissible becomes inadmissible under Section F
27 if the infonnation did come from a person not 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 G
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 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 H
80 SUPREME COURT REPORTS (2002) SUPP. 2 S.C.R.
A 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 guarant1!e 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
B now well settled that recovery of an object is not discovery of fact envisaged
in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor,
AIR (1947) PC 67, is the most quoted authority of supporting the interpretation
that the "fact discovered" envisaged in the section embraces the place from
which the object was producc:d, the knowledge of the accused as to it, but the
infonnation given must relate distinctly to that effect. [see State ofMaharashtra
C v. Danu Gopinath Shirde and Ors., (2000) Crl.L.J 2301. No doubt, the
infonnation pennitted to be admitted in evidence is confined to that portion
of the information which "distinctly relates t~ the fact thereby discovered."
But the infonnation 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
D police and the witnesses to the place where he had concealed the articles. is
not indicative of the infonnation given .
•Coming to evidence brought on record to substantiate the accusations,
it i~ at least clear that accused Nos. I and 2 left in the company of the
E deceased. Some evidence has also been brought to establish the motive i.e.
the. indebtedness of the acc:used to the deceased. In addition to this is the
evidence of PWs I and 2. So far as accused No. 2 is concerned, he almost'
stands on the same footing as accused No. I. Additionally, Hari Kumar (PW-
18) has stated that accused No. 2 came to his shop and took sweets and left
in car No. 566 JK02B belonging to accused No. I. He has also stated about
F the. ,return of accused No.2 to the shop and a demand for a scooter. This
witness has also stated to have seen car No. 5408-CHO I passing in front of
the shop carrying seven to eight persons out of which he identified accused
Kishore Kumar (since dead). PW-9 also has stated to have seen the deceased
running being chased and he claimed to have seen the deceased firing. He
G stated about the accused Nos. I and 2 giving 'Lalkara' that the deceased shall
be Killed and should not escape. Accused No. I had fired some shots in the
air. Another white car No. 5408 CHO I was also standing there. He had
identified accused Bodhraj, Bhupinder, Rakesh Kumar and the two acquitted
accused Rohit and Kewal Krishan. It has to be noted that Car No. 5408 CHOI
was found discarded after it had met with an accident. This car is stated to
H be !he get away car.
BODH RAJ@BODHA v. STATE OF JAMMU AND KASHMIR (ARIJIT PASAYAT, J.] 8)
As the evidence of PWs. I and 2 are very material it is desirable to note A
as to what their evidence was. On 3 August, 1994 PW- I was in his shop. At
about 4.30 p.m., A- I accompanied by the deceased and A-2 came to meet
him in car. A- I informed that he and his colleagues in the car were interested
in setting up a flour mill. A-2 was in a hurry to proceed towards the site. On
their way, PW-I asked A- I to stop the car to pick up PW-2. A-2 was reluctant B
to stop the car and only on PW- I' s insistence PW-2 was picked up. When
the deceased was attacked by the assailants and was pursued by the assailants
he had started running towards the national highway. A-2 also ran after the
deceased whereas A-I kept standing near PW- I. The deceased asked A-1 to
bring the car immediately but A- I only shouted to one Short that the deceased
should not escape. PW- I identified A- I and A-2 who were present in the C
Court.
PW-2 stated that on 3 August, 1994, he was sitting. at his house when
at about 4 to 4.30 to 5.00 p.m. PW-I accompanied by A-1 and A-2 came to
his residence and asked him to show some land to the persons accompanying
them for the installation if rice-cum-flour mill. They all went to Dhiansar by D
car. When they were still seeing the land A-2 told them that he approved of
the land and led them to the shop. While returning the deceased was attacked
by 4-5 persons who were armed with tokas, daggers etc. The deceased started
running away towards the canal and the assailants followed him and assaulted
him. Then PW-I Immediately told him to inform the police, by which time E
the deceased had started bleeding, and that he ran to ring up the police. PW-
2 however noticed that while the deceased was running, he asked accused A-
l to bring the car but the latter did not move. Meanwhile, PW-2 went to the
house of a contractor which was at a distance of 200 fts. from the place of
occurrence to make the telephone call. When he came back, he found the
dead body of the deceased lying on the road and heard accused A-2 telling F
accused A-1 "Kam ho gaya let us go to Jammu." The presence of PWs I and
2 at the place of occurrence is fortified from the fact that they were witnesses
to the seizure memos Ex. PW-GS,PW-GS/1, PW-GS/2 recorded by the police
immediately after incident.
G
Evidence of PWs. 8, 9 and 18 are also relevant and their evidence is
to the following effect. PW-8 (Surjit Singh) inter alia, stated as follows :
On 3rd August, 1994 he had gone for repair of his vehicle to Dhiansar.
He was at a tea stall near the garage when he saw vehicle Nos. 556 and 5408
parked on the other side of the road. He saw Kishore was armed with a H
82 SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R.
A revolver. Shots fired by the deceased caused injuries to two assailants. Rajesh
shot the deceased. The deceased was then surrounded by the assailants and
attacked by tokas, swords, etc. Accused Kishore fired in the air and the
assailants ran towards vehicle No. 5408. He had noticed accused A- I and A-
2 standing near their vehicle. The assailants reversed the other car and drove
B towards the deceased and accused Rajesh came out of the vehicle, picked up
the weapon lying near the deceased and they mounted on the vehicle and
drove off. A- I and A-2 also drove off.
.,
P,W-9 (Nainu Singh) int<:r alia stated as follows.:
On 3rd August, 1994, he was getting a vehicle repaired in a workshop
C at Dhiansar. He along with Surjit Singh went towards a tea shop. They htard
sound of fire arms being used. They saw the deceased bleeding profusely and
running towards Jammu Patha.nkot road. Six-seven assailants were chasing
him. They were armed with tokas, churas and revolver. The deceased while
running had fired at the assailants. Kishore Kumar who was armed with a
D pistol was running after the deceased. The shots fired by the deceased were
fired in his presence. Two of the accused were identified by him as Subhash
Kumar 'and Rajesh Kumar. When the deceased reached near the road, Rajesh
Kumar fired at him and hit on his arm. Thereafter, six to seven persons
surrounded the deceased. They were said to be armed with Chakus (knives)
E and Churas (bigger knives) and were stabbing the deceased. Near the work
shop gate car No. 566 was standing. This was of grey (slaty) colour. A-2 and
A-1 had given a lalkara that the deceased should be killed and should not
escape~ A-I had fired some shots in the air. Another white car bearing No.
CHO 1 5408 was also parked there. He noticed the accused sitting in the car.
He had identified Krishan Kumar, A-2 and A-1. The driver reversed the car.
F It was stopped near the dead body of the deceased. The revolver lying near
the deceased was picked up. After the car had left, A-1 and A-2 also left in
another car. He knew the names of the accused Bhupinder, Rohit and Rakesh
-
Kumar because he had identified them in the police station in the presence
ofTehsildar. He deposed that accused Bhupinder, Rakesh, Subhash and Rajesh
were holding Toka, Kirch, Sword and Revolver respectively. The witness
G identified the revolver, sword, kirch and toka and stated that these were the
weap~ns with which the accused were armed.
,Evidence of PW-18 (Hari Kumar) inter alia stated is as follows:
·He was the owne1 of a Halwai shop in Parade Ground, Jammu. On 3rd
H August. 1994, at about 11.00 a.m. accused Ravi Kumar came to the shop of
BODH RAJ@BODHA v. STATE OF JAMMU AND KASHMIR [ARIJIT PASAYAT,J.] 83
Hari Kumar in his car No. 5408-CHOl and left for Moti Bazar. At I or 1.30 A
p.m,, accused Ashok and the deceased came to his shop and told them that
they were going to Hotel Asia for taking meals. They took some sweets from
his shop and left in car No. 566 JK02B which belonged to A-1. After I0 or
15 minutes, A-2 also came to the shop and demanded a scooter for him for
going to Hotel Asia, telling him that he needs the scooter since he had given B
his car to some friend. He did not give a scooter to A-2. Half an hour
thereafter, he found car No. CHO I 5408 passing in front of his office shop
carrying 7-8 boys out of which he identified Kishore Kumar (who is now
dead). Car was being driven by a dark complexioned boy.
Some factors which weighed with the High Court in upholding C
conviction of the three accused as was done by the Trial Court are the
evidence of eye-witnesses, PWs 1 and 2. Evidence of these witnesses have
been analysed in detail by both the Trial Court and the High Court. Before
both the said courts, it was urged that they cannot be termed to be truthful
witnesses. By elaborate reasoning the stand was negatived. Additionally, it
was noticed that both accused nos. 1 and 2 were seen in the company of the D
deceased by employees of the deceased i.e. Darshan Singh (PW 15) and
Rajinder Kumar (PW 14). Additionally, Hari Kumar (PW 18) has also spoken
about having seen deceased in the company of accused nos. I and 2. For
some time accused No. I was not in the company of the deceased and accused
No. 2. At that period of time he wanted PW 18 to take him to Hotel Asia. E
He has also stated that accused No. 2 and the deceased had taken some
sweets from his shop and were travelling in a car No. JK02B 566. He has
also stated about the statement of accused I and 2 that there was some scuffle
between some boys and the deceased at the land which they had gone to see
and in that scuffle the killing took place. The reason for this was stated to be
a pressure on accused I and 2 to return the money. One of the important F
circumstances noticed by the Trial Court as well as the High Court is that the
land which was to be seen by the deceased was only known to accused I and
2. Another circumstance noted was the use of a car 5408 CHO I. There was
some amount of controversy raised about the owner of the car, as it was
evident from the lengthy cross examination made so far as the original owner, G
that is, L.B. Gupta, Advocate (PW 31 ).
The evidence of PWs I and 2 has rightly been accepted by the Trial
court and the High Court and we find no reason to discard their evidence. So
far as accused Rajesh Kumar is concerned as has been found by the Trial
Court and the High Court, live pistol belonging to accused No. I was recovered H
84 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.
A from his house. He has sustained bullet injuries on account of firing done by
the deceased while trying to protect his life.
In view of the circumstances noticed and highlighted by the Trial court
and the High Court and in our considered opinion rightly the appeals filed
by accused Ravinder Kumar arid Ashok Kumar are devoid of merit and
B deserve dismissal, which we dir1ect.
Coming to the appeal filed by four appellants who were acquitted by
the Trial Court but convicted by the High Court, it has been argued with
emphasis that even if it is accepted the two views are possible on the evidence,
C the one in favour of the accused was to be accepted and their acquittal should
not have been rightly interfered with. It is to be noticed that the Trial Court
placed reliance on the evidence of Hari Kumar (PW 18) for the purpose of
convicting accused Rajesh Kumar, but so far as the other four accused are
concerned, it was not held to be reliable. There was no cogent reason indicated
as to why the same was termed to be unreliable. Additionally, recoveries
D were made pursuant to the disclosure made by them. Though, arguments
were advanced that due procedure was not followed, in view of the evidence
of the witnesses examined by the prosecution in that regard, we find nothing
illegal ruling out its acceptance. There are certain additional features also. A
pant was recovered from the house of Subhash kumar which had holes
E indicating passage of bullet. However, a chemist (PW 22) was examined to
show when he had gone to purchase the medicine to be applied to the injury.
It was submitted that so far as Sant_okh Singh (PW 7) is concerned, his
evidence was held to be not reliable. Therefore, the identification of accused
No. 5, Subhash Kumar by Santokh Singh was not of any consequence. Even
if it is accepted, the evidence relating to recovery established by the evidence
F of PW 18 cannot be lost sight of.
The evidence ofNainu (PW 9) was also described to be un-reliable and
it was said that he stood at par with Santokh Singh. Similar was the criticism
in respect of Surjit Singh. Their evidence has been analysed in great detail
G by the High Court and has been held to be reliable. It is of significance that
practically there was no cross-examination on the recovery aspect. We do not
find any reason to differ with tht: High Court in that regard. There can be no
dispute with the proposition as urged by learned counsel for the appellants
that two views are possible, the one in favour of the accused has to be
preferred. But where the relevant materials have not been considered to arrive
H at a view by the Trial Cou11. certainly High Court has a duty to arrive at
BODH RAJ@ BODHA v. STATE OF JAMMU AND KASHMIR IARl.llT PASAYAT. J.] 85
correct conclusion a taking view different from the one adopted by the Trial A
Court. In the case at hand. the course adopted by the High Cou11 is proper.
Judged in the aforesaid background, conviction by the High Court that
those four who were acquitted by the Trial Cou11 does not warrant any
interference.
B
The last seen theory comes into play where the time gap between the
point of time when the accused and deceased were seen last alive and when
the deceased is found dead is so small that possibility of any person other
than the accused being the author of crime becomes impossible. It would be
difficult in some cases to positively establish that the deceased was last seen C
with the accused when there is a long gap and possibility of other persons
coming in between exists. In the absence of any other positive evidence to
conclude that accused and deceased were last seen together, it would be
- hazardous to come to a conclusion of guilt in those cases. In this case there
is positive evidence that deceased, A-1 and A-2 were seen together by
witnesses, i.e. PWs 14, 15 and 18; in addition to the evidence of PWs 1 and
2.
D
It was submitted that there was unexplained delay in sending the FIR.
This point was urged before the Trial Court and also the High Court. It was
noticed by the High Court that Showkat Khan (PW 38) was an investigating
officer on 3rd August, 1994 for a day only. He had taken steps from 5.30 E
evening onwards to 9.00 p.m. on the spot. Thereafter, Gian Chand Sharma
(PW 42) was asked to investigate into the matter. It was also noticed that the
road between Bari Brahamana and Samba where the comt was located was
closed due to traffic on account of heavy rains. Though, the road was open
from Jammu to Bari Brahamana but it was closed from Bari Brahamana to
F
-
Samba. The day's delay for the aforesaid purpose (the FIR has reached the
Magistrate on 5.8.1994) cannot be said to be un-usual when proper explanation
has been offered for the delay. The plea of delayed dispatch has been rightly
held to be without any substance.
Another point which was urged was the alleged delayed examination of G
the witnesses. Here again, it was explained as to why there was delay.
Important witnesses were examined immediately. Further statements were
recorded subsequently. Reasons necessitating such examination· were indicated.
It was urged that the same was to rope in accused persons. This aspect has
also been considered by the Trial Court and the High Court. It has been
recorded that there was valid reason for the subsequent and/or delayed H
86 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.
A examination. Such <:onclusion has been arrived at after analyzing the
explanation offered. It cannot be laid down as a rule of universal application
that if there is any delay iii examination of a particular witness the prosecution
version becomes suspect. It would depend upon several factors. If the
explanation offered for the delayed examination is plausible and acceptable
B ai;d the court accepts the same as plausible, there is no reason to interfere
with the conclusion.
As was observed by this Court in Ranbir and Ors. v. State of Punjab,
AIR (1973) SC 1409 the investigating officer has to be specifically asked as
to the reasons for the delayed examination where the accused raised a plea
C that there was unusual delay in the examination of the witnesses. In the
instant case however the situation does not to arise.
Therefore, in the aforesaid background, the appeals filed by the four
appellants who were acquitted by the Trial Court but convicted by the High
Court also deserve dismissal which we direct.
....
D
Coming to the appeal filed by the State in respect of whom both the
Trial Court and High Court recorded acquittal, it is seen that there was no
acceptable material. This aspect has been analysed in great detail by the Trial
Court and the High Court and we do not find any reason to interfere with the
conclusions. The appeal filed by the State is accordingly dismissed. In the
E ultimate result, all the four appeals are dismissed.
N.J. Appeals dismissed.
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