STATE OF U.P.versusSUNIL

                         [2017) 3 S.C.R. 815


                           STATE OF U.P.                                   A
                                  v.
                              . SUNIL
              (Criminal Appeal Nos. 1432-1434 of 2011)
                            MAY02,2017                                     B
   [PINAKI CHANDRA GHOSE AND R. F. NARIMAN, JJ.]
        Penal Code, 1860 - s.302 rlw s.34 - Prosecution case was
that complainants brother-in-law and respondent committed murder
 of her father, mother and two sisters - Confessional statement
 leading to recovery of knife, blood stained clothes and o"ther articles
                                                                           c
from brother-in-law - Involvement of respondent unearthed on the
 basis of such confessional statement - Accused-brother-in-law died
 during the trial - Prosecution case was not only corroborated .by
 medical evidence but also confirmed by FSL report which proved
presence of human blood on weapon of murder and clothes of both            D·
 the accused - Since the finger prints and foot prE1ts 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 accused
for about 5 years, trial court treated it as an adverse inference
 against them - Conviction and death sentence by trial court based         E
 on circumstantial evidence - High Court set aside the order of trial
 court holding inter alia that adverse inference cannot be drawn by
 the court on refusal to give specimen palm impression inspite of
 order of the court - On appeal, held: Although 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              F
 guaranteed u!Art.20(3) of the Constitution - However, 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 - Evidence on record showed that the basic
foundation of the prosecution had crumbled down in this case by            G
 not connecting the respondent with the incident in question and
  hence the circumstantial evidence became inconsequential - In such
  circumstances, judgment of conviction could not be founded on the
  sole circumstance that recovery of weapon and other articles were
  made - Prosecution miserably failed to connect the occurrence with
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                                  815
816            SUPREME COURT REPORTS                        [2017] 3 S.C.R.


A     respondent - High Courts order of acquittal is upheld - Constitution
      of India -Art.20(3) .:... Adverse inference - Evidence - Circumstantial
      evidence.                        ·
            Dismissing the appeals, the Court
        HELD: 1. Whether compelling an accused to provide his
B fingerprints or footprints etc. would come within the purview of
  Article 20(3) of the Constitution oflndia i.e. compelling an accused
  of an offence to be a "witness" against himself? 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
c guaranteed under Article 20 (3) of the Constitution of India.
  However, non-compliance of such direction of the Court may lead
  to adverse inference, nevertheless, the same cannot be
  entertaiu.ed as the sole basis of conviction. 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
D provided the chain of the circumstances is complete beyond all
  reasonable doubt. [Paras 8, 12 and 13)(820-G-H; 823-C-E]
            Haroon Haji Abdulla v. State of Maharashtra AIR 1968
            SC 832 : [1968] 2 SCR 641; State of Bombay v. Kathi
            Kalu Oghad & Ors. [1962) 3 SCR 10; Selvi v. State of
 E          Karnataka (2010) 7 SCC 263 : (2010] 5 SCR 381 -
            relied on.
            2. A perusal of the evidence on record showed that the basic
      foundation of the prosecution had crumbled down in this case by
      not connecting the respondent with the incident in question. And
 F    when basic foundation in criminal cases is so collapsed, the
      circumstantial evidence becomes inconsequential. The
      prosecution has miserably failed to connect the occurrence with
      respondent. (Paras 15, 16][824-G; 825-A]
             Prakash v. State of Karnataka (2014) 12 SCC 133;
 G           Musheer Khan v. State of M.P. (2010) 2 SCC 748 :
             (2010) 2 SCR 119 - relied on.
                              Case Law Reference
             (1968) 2 SCR 641                  relied on       Para 5
 H


                                 • • • -i
                     STATE OF U.P. v. SUNIL                                817



      [1962) 3 SCR 10                    relied on       Para 9            A
      (2010) 5 SCR 381                   relied on       Para 11
      (2014) 12 sec 133                  relied on       Para 13
      (2010) 2 SCR 119                   relied on       Para 14
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                      B
Nos.1432-1434of2011.
       From the Judgment and Order dated 23.05.2008 of the High Court
of Judicature at Allahabad in Crl. Appeal No. 2968 of 2007 and Crl.
(Jail) A. No. 2757 of 2007 and Capital Sentence Reference No. 12 of
2007                                                                       c
                                    WITH
      Crl. A. Nos. 1423-1424 of201 l.
     Ratnakar Dash, Mrs. V. Mohana, Sr. Advs., Adarsh Upadhyay,
Ms. Anchal Mehrotra, Ms. Nupur Shukla, Ravinder Kumar, K. K. Mohan, D
AftabAli Khan, Ali Farooqi, Ms. Nargis Jahan, Ms. Kreeti Joshi, Jafar
Iman Naqvi, V. K. Shukla, Adarsh Upadhyay, Amit Singh, Ms. K. V.
Bharathi Upadhyaya, Advs. for the appearing parties.
      The Judgment of the Court was delivered by
       PINAKI CHANDRA GROSE, J. l. Present appeals have been E
directed against the judgment dated 23'd May, 2008 passed by the High
Court of Judicature at Allahabad in Criminal Appeal No.2968 of 2007
with Criminal (Jail) Appeal No.2757 of2007 and Capital Reference No.12
of2007, whereby judgment and order dated 04.04.2007 passed by the
learned Additional Sessions Judge, Etawah in Sessions Trial No.424 of F
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.
       2. Brief facts necessary for adjudication of the present case are   G
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-Jaw (Jeeja), namely, Suresh Pal Singh@Guddu
along with his friend had come to their house in Etawah, Uttar Pradesh,
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818           SUPREME COURT REPORTS                        [2017) 3 S.C.R.


A 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 bodies of her father, mother,
B
  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
C (PW-7) in the presence of PW-4 and recovery memo Ext. Ka-8 was
  made. Involvement ofrespondent 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,
D 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 ofRs.500/- for
   offence under Section 429 ofIPC.
         3. Being aggrieved, the accused-respondent preferred Criminal
 E Appeal No.2968 of2007 and Criminal (Jail) Appeal No.2757 of2007
   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'<l May, 2008 set aside the order of conviction
   and sentence passed by the Trial Court and acquitted the accused-
 F respondent. Consequently, Capital Sentence Reference No.12 of2007
   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 of2011, respectively.
          4. We have noticed that the High Court had allowed the criminal
 G 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
 H
                      STATE OF U.P. v. SUNIL                               819
                  [PINAKI CHANDRA GHOSE, J.]

worthy of credence for the reason that he did not actually see the accused A
persons; (iii) Evidence ofrecovery 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.
        5. We have heard the learned counsel for the parties at B
considerable length. During the course of hearing, learned counsel for
the State ofU.P. has submitted written argu~ents. It is the submission
of the learned counsel for appellants that the case has been proved on
the basis of circumstantial evidence. PW-I 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 C
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 D
 relied upon the judgment of this Court in the case of Haroon HajiAbdu/la
 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 "E
      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 F
      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 ofjudgment, 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. G
      dubitante) allowed the collfession 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
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820           SUPREME COURT REPORTS                        [2017] 3 S.C.R.


A         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."
         6. Learned counsel for the State ofU.P. concluded his arguments
B by submitting that the prosecution version was not only corroborated by
  medical eviden.ce of PW-5 and PW-6 but was also confirmed by FSL
  Report, which proved presence of 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
c order by the accused for almost five years, even when the same was
  upheld irt 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 ..
         7. Learned counsel appearing for the accused-respondent, on the
D other hand, submitted that the recovery ofbag and articles (Ext. I) 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-
E 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 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
F negative and application moved by the accused praying for St<nding
  footprints and fingerprints to some other laboratory was rejected by the
  Trial Court vide order dated 09.01.2007.
         8. After careful perusal of the evidence and material on record,
  we are of the considered opinion that the following question would play
G a crucial role in helping us reaching an upright decision:
          Whether compelling an accused to provide his fingerprint~ or
          footprints etc. would come within the purview of Article 20(3) of
          the Constitution oflndia i.e. compelling an accused of an offence
          to be a "witness" against himself?
H
                      STATE OF U.P. v. SUNIL                            821
                  [PINAKI CHANDRA GROSE, J.]

      It would be relevant to quote Article 20(3) of the Constitution of A
India which reads as follows:
      "Article 20: Protection in respect of conviction for offences.
      (1) ........ .
      (2) ........ .                                                    B
      (3) No person accused of any offence shall be compelled to be a
      witness against himself."
      9. 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 Ka/u Oghad & Ors:, (1962) 3 SCR 10,        C
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 D
      specimen writing or exposing a part of the body. 'Furnishing
      evidence' in the tatter 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 E
      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 F
      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. "
       I 0. We may quote another relevant observation made by this Court
in the case of Kathi Kalu Oghad, (supra).                   ·            .G
       "When an accused person is called upon by the 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
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822            SUPREME COURT REPORTS                         [2017) 3 S.C.R.


A            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
B
             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."
             11. In Se/vi Vs. State of Karnataka, (2010) 7 SCC 263, a three-
      Judge Bench of this Court while considering testimonial character of
c     scientific techniques like Narc9 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,
D         . ·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
E            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 they are used for
             the purpose of identification or corroboration with facts or
             materials that the investigators are already acquainted with.
F            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
G           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 thfi narco analysis technique
            involves a testimonial act. A· subject is encouraged to speak
H           in a drug-induced state, and there is no reason why such an
                     STATE OF U.P. v. SUNIL                               823
                 [PINAKI CHANDRA GROSE, J.]

     act should be treated any differently from verbal answers A
     during an ordinary interrogation. In one of the impugned
     judgments, the compulsory administration of the narco ana(ysis
      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 B
      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)."
       12. Thus, we have noticed that albeit any person can be directed
to give his foot-prints for corroboration of evidence but the same cannot c
be considered as violation of the protection guaranteed under Article 20
(3) of the Constitution 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.                                                              .D
       13. 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          E
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.                                                       F
       "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.        G
       (Lakhjit Singh Vs. State of Punjab, 1994 Supp (1) 173)"
      14. It has also been the observation of this Court in Musheer
Khan Vs, State ofM.P., (2010) 2 SCC 748, apropos the admissibility of
evidence in a case solely based upon circumstantial evidence that
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824           SUPREME COURT REPORTS                         [2017] 3 S.C.R.


A          "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 Section 27 are not voluntary, then it will not be
           admissible, and will be hit by Article 20(3) of the Constitution
B          of India. [See State of Bombay vs. Kathi Kalu Oghad, [AIR
           1961SC1808}.
          56. The Privy Council in Pulukori Kottaya vs. King Empero1;
          [1947 PC 67} held that Section 27 of the Evidence Act is not
          artistically worded but it provides an exception to the
c         prohibition imposed under the preceding sections. However,
          the extent 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
D          discovered pursuant to the statement of the accused
           under Section 27 can be illustrated by the following example:
           Suppose a person accused of murder deposes to the police
           officer the fact as a result of which the weapon with which
           the crime is committed is discovered, but as a result of such
           discovery no inference can be drawn against the accused, if
E          there is no evidence 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
F          the conviction and sentence imposed on A-4 and A-5 by the
           High Court. "
          15. 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
G question. And when basic 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.
H
                       STATE ~OF U.P. v. SUNIL                               - 825
                   [PINAKI CHANDRA GROSE, J.]

       16. After examining every evidence and material on record A
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.
                                                                          B
       17. The appeals are, accordingly, dismissed..


, Devika Gujaral                                        Appeals dismissed.