Majendran Langeswaran Vs State (nct of Delhi)

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‘ REPORTABLE’

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1300 OF 2009

Majendran Langeswaran …..Appellant

Versus

State (NCT of Delhi) & Anr. ….Respondents

J U D G M E N T

M.Y. EQBAL, J.

This appeal by special leave is directed against the

judgment and order dated 25th July, 2008 passed by the

High Court of Delhi in Criminal Appeal No. 820 of 2002

whereby the judgment and order dated 9th August, 2002

passed by learned Additional Sessions Judge, New Delhi in

Sessions Case No. 45 of 2001 convicting the accused-

appellant under Section 302 of the Indian Penal Code, 1860

(for short, “IPC”) and sentencing him to imprisonment for

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life and a fine of Rs. 100/- and in default of payment of fine,

rigorous imprisonment for one day was maintained and the

said appeal dismissed.

2. The prosecution version in a nutshell is that the

Cargo Ship Motor Vessel “Lok Prem” owned by the Shipping

Corporation of India was chartered by a private company of

South Africa on 6th November, 1996 for carrying Chrome

Alloy. The accused-appellant and the deceased L.

Shivaraman along with other were helmsmen/seamen (crew

members) on the said ship. When the ship was sailing from

South Africa to Japan via Singapore, the auto pilot went out

of order which could not be repaired for non-availability of

technicians on board and thus requiring the crew on board

to manually steer the ship. The accused and one M.Y.

Talgharkar showed reluctance to steer the ship manually

and insisted for repair of auto pilot and payment of their

long overdue overtime. The ship was taken to Singapore to

make the auto pilot functional but the same could not be

got repaired. The accused and said Talgharkar are alleged

to have instigated other crew members to insist and obtain

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it in writing from the Captain/Master of the ship (PW-5

Radha Krishan Ambady) that the ship would be got repaired

at Japan, otherwise they (crew members) shall not allow the

moving of the ship from Singapore. When the Captain of

the ship reported the matter to the Shipping Corporation of

India, the General Secretary of the Union (NSUI) directed

the crew members to perform their duties in obedience to

lawful commands of the Captain. On 30th November, 1996,

an altercation is stated to have taken place between the

accused and the deceased L. Shivaraman. As the accused

had sustained some cut injuries on his hands, he reported

the matter to the officials. On 1st December, 1996 when the

ship was on high seas, the appellant took off from his duty

as helmsman on the ground of pain in his hands due to cut

injuries and another helmsman Baria was asked to do the

duty as replacement. As the accused and the deceased

were staying in Cabin No. 25, the accused was temporarily

shifted from that cabin to Cabin No. 23 due to the above

incident of assault. At about 1510 hours, the accused

allegedly approached IInd Officer Kalyan Singh (PW-6) with

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a blood-stained knife in his hand and his hands smearing in

blood and is alleged to have confessed before him that he

had killed L. Shivaraman. On being asked by Kalyan Singh

(PW-6), the appellant handed over the blood-stained knife

to him which he placed in a cloth piece without touching the

same. Kalyan Singh (PW-6) then intimated the Captain and

other officers. The body of L. Shivaraman was found lying

in Cabin No. 23 in such a way that half of it was inside the

cabin and half of it outside. The officials of Shipping

Corporation of India were informed. On incident being

reported, pursuant to an instruction from concerned

quarter, the ship was diverted to Hongkong. On being so

directed by the Captain of the ship (PW-5), Kalyan Singh

(PW-6) got the body of the deceased cleaned up for being

preserved in the fish room with the help of Manjeet Singh

Bhupal (PW-4) and Chief Officer V.V. Muralidharan (PW-18)

took photographs. The blood-stained knife was kept in the

safe custody of PW-5. The accused was then apprehended,

tied and disarmed before being shifted to the hospital on

board. Since the ship was having Indian Flag, as per the

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International Treaty of which India was a signatory, the act

of the accused was subject to Indian laws. Accordingly, a

case bearing R.C. No. 10(S) of 1996 was registered by the

Central Bureau of Investigation (CBI) against the accused

on 6th December, 1996. On reaching Hongkong, the body of

deceased was handed over to Hongkong Police for post

mortem examination. Two CBI officers reached Hongkong

on 7th December, 1996. The investigation of the case was

conducted by Anil Kumar Ohri, Dy. Superintendent of Police,

C.B.I. (PW-23). The Investigation Officer (I.O.) visited the

ship and recorded the statements of witnesses under

Section 161 of the Code of Criminal Procedure (for short,

“Cr.P.C.”). The blood-stained knife (Ex. P-3) and

deceased’s boiler suit (Ex. 2a) as also relevant papers from

the Hongkong police were taken into his possession by the

I.O. The post mortem examination on the dead body was

conducted by Dr. Lal Sai Chak (PW-19). The accused was

arrested and brought to Delhi where he was medico legally

examined by a doctor. The specimen fingerprints and

signature of the accused were obtained. The knife and the

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specimen fingerprints were then sent to Central Forensic

Science Laboratory (CFSL) for comparison. The fingerprints

of the accused had tallied with the fingerprints appearing

on the knife (Ex.P-3). The accused was charged under

Section 302 IPC. In support of its case, the prosecution

examined as many as 23 witnesses.

3. The trial court vide judgment and order dated 9th

August, 2002 held the appellant guilty of committing the

murder of L. Shivaraman taking note of the incident of

assault of 30th November, 1996 in which the appellant had

sustained injuries at the hands of the deceased as motive

on the part of the appellant for commission of crime, the

extra- judicial confession made by him to Kalyan Singh (PW-

6) and presence of his fingerprints on the knife that was

allegedly used as the weapon of offence.

4. Before the High Court while assailing the conviction

and sentence by the trial court, it was contended that there

was sufficient opportunity to force the appellant to hold the

knife (Ex.P-3) to get his fingerprints thereon; that no blood

was noticeable on the clothes of the appellant; that the

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clothes of the appellant which he was wearing at the

relevant time were not seized to establish that the same

carried blood stains of the deceased; two other helmsmen

Baria and Talgharkar who were present when the appellant

made confession before Kalyan Singh (PW-6) were not

examined by the prosecution; that the weapon of offence

i.e. knife (Ex.P-3) was not shown to the doctor concerned

who had conducted post mortem examination on the dead

body of the deceased to find out whether the injuries could

have been caused by that weapon; that all the injuries

could not have been caused by the said weapon of offence

which had one blunt edge and the other sharp; that more

than one weapon was used to cause injuries on the person

of the deceased by referring to existence of another knife

(Ex. 2b) in the parcel which contained deceased’s boiler suit

(Ex. 2a) which had also been sent to CFSL; that no

fingerprints were lifted from the second knife nor the same

was referred to the expert for matching with the cuts on the

boiler suit; and that the second knife was also not shown to

the doctor conducting post mortem on the body of the

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deceased to ascertain if the same could have been used as

a possible weapon of offence. As regards alleged extra-

judicial confession, the depositions of Captain Radha

Krishan Ambady (PW-5) and Kalyan Singh (PW-6) were

referred to and variance in words allegedly used by the

appellant while making the same was demonstrated;

absence of any mention of such a confession in the Official

Log Book was also pleaded; and it was contended that the

I.O. did not detect any blood in Cabin No. 23 as the scene of

crime had also been cleaned and on account of such

tampering the crime could not be connected with the

appellant. It was contended that it was on account of

officers on board including Captain of the ship being

unhappy with and inimical towards the appellant that he

was falsely implicated. It was contended that the previous

day incident of assault could not be reckoned as motive for

fatal assault on the deceased on the following day and such

motive alone in the absence of necessary links in the

circumstantial evidence would not be suffice to record

conviction against the appellant.

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5. After appreciation of the evidence of prosecution

witnesses and the documents exhibited therein, the High

Court came to the conclusion that the prosecution has

established the guilt of the appellant in the commission of

the offence and accordingly dismissed the appeal affirming

the judgment and order of conviction and sentence passed

by the trial court. Hence, this appeal by special leave.

6. Mr. G.Tushar Rao, learned counsel appearing for the

appellant has assailed the impugned judgment and order of

conviction and sentence as being illegal and contrary to

facts and evidence on record. Learned counsel submitted

that the conviction is based on circumstantial evidence and

a chain with regard to the circumstances leading to the

guilt of the appellant has not at all been established.

Counsel submitted that it is settled law that extra-judicial

confession is a weak type of evidence and needs

corroboration in a case dependent wholly on circumstantial

evidence and in such cases the exact words used by the

accused have to be reproduced, but in this case even PW-6

before whom the appellant is alleged to have made

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confession has not been able to reproduce the exact words

and there are material contradictions in the statements of

prosecution witnesses. It is contended by the counsel that

the manner in which the alleged weapon of offence i.e.

knife Ex.P-3 was seized and sealed is not proper and the

probability of tampering with the knife cannot be ruled out.

Counsel submitted that circumstances and the evidence on

record indicate that the appellant was susceptible to being

forced to hold the knife so as to get his fingerprints on the

knife. It is surprising, counsel submitted, that there are

about 14 stab wounds both minor and major on the neck

and torso as per post mortem report, but there was no

blood noticeable on the appellant nor did any of the

witnesses noticed blood either on the clothes of the

appellant or the bridge or the alleyway from the scene of

occurrence to the bridge nor were the clothes of the

appellant were ever seized by the Captain/Master of the

ship (PW-5), IInd Officer (PW-6), the Chief Officer (PW-18),

Senior Inspector Hongkong Police (PW-20) or the

Investigating Officer of CBI (PW-23) and, therefore, the

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chain in the prosecution case of circumstantial evidence

gets fatally broken due to this aspect. It is submitted by

the counsel that from the evidence it is clear that at the

time when the appellant is alleged to have confessed to

Kalyan Singh (PW-6), there were two helmsmen, namely,

Baria and Talgharkar and as per the evidence of the

prosecution witnesses, they also could have heard the

appellant, but these two persons were not examined at all

which goes to show that the prosecution tried to hide

something. It is contended that the knife Ex. P-3 (weapon

of offence) was not shown to the doctor (PW-19) who

conducted the post mortem of the deceased on 6th

December, 1996 in Hongkong to take his opinion as to

whether it could be Ex.P-3 alone which could have caused

the injuries on the body of the deceased and in the absence

of such examination, the weapon remains unconnected to

the injuries on the deceased. Counsel contended that the

injuries on the deceased were not consistent with the

weapon (Ex.P-3) and that too in the absence of the opinion

of the doctor who conducted post mortem and was not

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shown the alleged weapon of offence. The counsel

contended that from the evidence on record it is clear that

there was more than one weapon containing the blood of

the deceased as apart from Ex.P-3 knife, there was another

knife about which there is no mention nor any plausible

reason as to wherefrom it came and why no one bothered

about it. The counsel submitted that the doubt created by

this circumstance has neither been looked into, considered

or removed by the prosecution at all and this being a case

purely based on circumstantial evidence, the benefit of

doubt ought to be extended to the appellant. The

prosecution, counsel submitted, is expected and is duty

bound to eliminate every element of suspicion in every

circumstance relied upon by it so as to enable the courts to

come to the hypothesis consistent with the guilt of the

accused and simultaneously inconsistent with the

innocence of the accused person. It is contended that the

Captain of the ship got the scene of offence cleaned and no

site plan of the scene of occurrence prepared.

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7. Mr. Mukul Gupta, learned senior counsel appearing

for the respondent-CBI, on the other hand, submitted that

the trial court and the High Court have dealt with the issue

of extra-judicial confession being legally maintainable. The

prosecution has also been able to prove that the same was

without any inducement, threat or promise which factor the

appellant has not been able to discard from any of the

witness. The prosecution has been able to prove the motive

to commit such a crime. Similarly, the recovery of knife,

CFSL report and post mortem report clearly indicate that

the injuries were from a single blade weapon. Even though

there is no eye-witness to the actual crime, yet the

prosecution has been able to bring home the guilt of the

accused under Section 302 IPC by proving the complete

chain of circumstances beyond reasonable doubt. The

appellant neither in cross-examination of various witnesses

nor in any explanation in his statement under Section 313

Cr.P.C. has been able to make a dent in the entire evidence.

The counsel submitted that even in a case of circumstantial

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evidence, the evidence has to be appreciated as a whole

and not in pieces, one bit here and one bit there.

8. We have considered the arguments advanced by

the counsel on either side and have also gone through the

findings recorded by the trial court as also by the High

Court.

9. Admittedly, the entire case is based on the

circumstantial evidence as no one has seen the murder

having been committed by the accused-appellant. Although

the trial court has not given much weightage to the

confession alleged to have been made by the accused-

appellant before PW-5, PW-6 and PW-20, but the High Court

based the conviction on the basis of extra-judicial

confession also. The trial court while dealing with the

confession alleged to have been made by the accused,

observed as under:

“52. Now in the present case the prosecution is relying on the confession of the accused before Kalyan Singh (PW-6), the repetition confession before Sh. R.K. Ambady (PW-5)

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and the confession allegedly made by the accused before Inspector Wai (PW-20).

53. So far as the confession before R.K. Ambady (PW-5) is concerned, I am not inclined to accept the same. PW-5 claims to have gone on the bridge. The accused had confessed before him that he had killed Shiva Raman and will kill the other persons whosoever comes before him (Hum Shivaraman Ko Khalash Kiya Aur Koi Ayega To Usko Bhi Khalash Karenga) However, this particular claim of PW-5 is conspicuous by its absence from the official logbook entry Ex.PW5/D which had been made on 2.12.96. However, there is no reference of this particular confession i.e. before PW-5.

54. So far as the confession before Inspector Wai (PW 20) is concerned, the same cannot be looked into in view of the law laid down in State vs. Ranjan Raja Ram 1991 (1) CCC 134. This particular judgment has been relied on by counsel for the accused and it had been argued that since the facts of the present case were identical, therefore, the accused in the present case deserves acquittal. I have carefully gone through the judgment State vs. Ranjan Raja Ram (supra). In that case the extra judicial confession was made before a person who had just joined the ship on 2.6.78 and the occurrence had taken place on 9th/10th June 1978. He was a stranger to the accused. It was the prosecution case (in that case) the accused had kept on telling his having committed the murder to every one. It was not believed by the court. In para 26 of the judgment it was mentioned that the name of PW in that case had come for the first time

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on 15.7.78. Therefore, that case is distinguishable so far as confession made by the present accused before Sh. Kalyan Singh (PW6) is concerned. What is a confession? What is the law on the subject? Whether conviction can be based on extra judicial confession?”

10. On the contentions of the accused-appellant,

the High Court while dismissing the appeal of the

accused by the impugned judgment held as under:

“13. ……. One cannot lose sight of the fact that according to Kalyan Singh (Pw-6), on reaching the bridge of the ship, the appellant had first told him that he had killed Shivraman and then repeated the same in Hindi also by uttering, ?KHALAS KAR DIYA?. The statement so made in Hindi was only in continuation to the confession initially made by him wherein he had specifically named Shivraman. Thus, the words ?KHALAS KAR DIYA? Uttered by the appellant in Hindi are to be read in the context of his initial confession naming Shivraman. No real variance in the content of confession initially made and the one repeated in Hindi is thus brought out. xxx xxx xxx 15. …. The omission to mention the exact words in the log book entry dated 2.12.1996 vide Ex. PW-5/D in the circumstances cannot make the testimony of Kalyan Singh (PW-6) in regard to confession by the appellant uncreditworthy. The log book entry (Ex.PW-5/D) does carry a mention that the information

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regarding commission of the murder of Shivraman by the appellant was given over phone by Shri Kalyan Singh (PW-6) from which it is evident that Shri Kalyan Singh (PW-6) had, before passing on the information to the said effect, come to know that it was the appellant who had committed the crime. …… The presence of the appellant at the bridge near Kalyan Singh (PW-6) before Shri Radha Krishan Ambady (PW-5) and Murlidharan (PW-20) reached there and handing over of bloodstained knife collected from the appellant by Kalyan Singh (PW-6) lend sufficient corroboration to the appellant having approached Kalyan Singh (PW- 6) at the bridge and making confessional statement to him, as deposed by Shri Kalyan Sijngh (PW-6). The stand of the appellant that Shri Kalyan Singh (PW-6) had joined hands with Shri Radha Krishan Ambady (PW-5) and others on board being inimical to him is difficult to accept, given the nature of friendly relationship he enjoyed with Kalyan Singh (PW-6). The learned trial court would, thus, appear to have committed no error in reaching the conclusion that the extra judicial confession made by the appellant, as deposed in the court, was voluntary and a truthful one and could, thus, constitute an incriminating piece of evidence to find his culpability in the commission of the crime.

16. Non-examination of two seamen, namely, Baria and Thalgharkar, who were manually steering the ship at the relevant time when the appellant made his confessional statement before Kalyan Singh (PW-6) cannot be a ground to discard an otherwise unimpeached testimony of Kalyan Singh (PW-6) in regard to confession made to him by the

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appellant. Acceptance of testimony of a particular witness in regard to an extra judicial confession is not dependent on corroboration by other witnesses, if otherwise creditworthy. …… The appellant and Talgharkar thus shared a comradely bond and in such a situation looking for a support from Talgharkar to PW Kalyan Singh’s deposition on extra judicial confession by the appellant would be expecting too much from him.

xxx xxx xxx 20. ….. Since the clothes which the appellant was wearing at the relevant time were not taken into possession to prove the existence of bloodstains, if any, thereon and as none of the witnesses testifies about presence of bloodstains on his clothes, the conclusion that follows is that there were no bloodstains on his clothes when the appellant approached Kalyan Singh (PW-6) at the bridge to confess his guilty. This fact could have been of considerable significance in adjudging the culpability of the appellant had the effect of the same been not offset by the strong incriminating evidence which constitute the basis for convicting the appellant. … The clothes of the appellant, as noticed earlier, were not soaked in deceased’s blood nor there is any evidence of his feet or footwear, if any, the appellant was wearing, having got smeared in deceased’s blood before his proceeding to the bridge and in such circumstances, no blood could be expected to have fallen down in the alleyway from the scene of the crime to the bridge.

xxx xxx xxx

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23. Apart from the bloodstained knife Ex.P.3 and certain other items, as mentioned in the letter (Ex. PW-21/2) of the investigating officer, one sealed cardboard parcel ‘containing a blue coloured soaked boiler suit’ worn by deceased at the time of incident marked as ‘B’ was also sent to CFSL for examination and opinion. Such sealed cardboard box was, on opening, found to contain two Exhibits 2a and 2b vide CFSL report Ex.PW-22/1. Ex.2a was the dark blue coloured boiler suit and Ex.2b was a metallic blade fitted in a wooden handle like a knife. The length of the metallic blade is about 5.5 centimeters with one edge sharp and another blunt having a round tip at one end. None of the prosecution witnesses, including the investigating officer, stated anything as to how and wherefrom the said knife Ex.2b was recovered and kept with the boiler suit in the same cardboard box. This knife Ex.2b, like knife Ex.P-3, also bore human bloodstains matching ‘O’ group of the deceased. Existence of knife Ex.2b was made a basis, by learned counsel for the appellant, to argue that the same could have been used to cause stab wounds on the neck and chest of the deceased, as noted in the postmortem report (Ex.PW- 19/A). Countering the argument related to nature of weapon of offence used in commission of the crime, as raised by the learned counsel for the appellant, learned counsel for CBI contended that even though the prosecution witnesses kept silent as to how the knife Ex.2b came to be sealed in the cardboard box containing the boiler suit (Ex.2a), in view of sufficient evidence on record proving beyond doubt commission of the crime by the appellant with the knife Ex.P-3, there is no real basis to support the contention that knife Ex.2b could also be a possible weapon of offence.

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xxx xxx xxx 25. The theory of more than one weapon being used in the commission of the crime, as propounded by learned counsel for the appellant, as noticed earlier, emanates from the nature of certain injuries on the body of the deceased and existence of knife Ex.2b with bloodstains thereon matching the blood group of the deceased. Learned counsel for the appellant contended that unlike knife Ex.P-3 the knife Ex.2b was not subjected to examination to find the presence of finger prints, if any, on its handle. The same was also not shown to Dr. Lal Sai Chak (PW-19), who conducted the postmortem examination on the body of the deceased to seek his opinion if the same could have been the possible weapon of offence, nor the opinion of the expert witness Shri C.K. Jain (PW-22) was sought in respect thereto if the cuts on the boiler suit could have been caused by that knife.

xxx xxx xxx 28. Keeping in view the incriminating evidence available on record proving the guilt of the appellant beyond reasonable doubt, we find no reason to arrive at a finding different from the one recorded by the learned trial court in regard to the complicity of the appellant in committing the murder of L. Shivaraman on board. Hence, the impugned conviction and sentence are maintained and the appeal is dismissed being bereft of merit.”

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11. Now, we have to consider whether the judgment of

conviction passed by the trial court and affirmed by the

High court can be sustained in law. As noticed above, the

conviction is based on circumstantial evidence as no one

has seen the accused committing murder of the deceased.

While dealing with the said conviction based on

circumstantial evidence, the circumstances from which the

conclusion of the guilt is to be drawn should in the first

instance be fully established, and all the facts so

established should also be consistent with only one

hypothesis i.e. the guilt of the accused, which would mean

that the onus lies on the prosecution to prove that the chain

of event is complete and not to leave any doubt in the mind

of the Court.

12. In the case of Hanumant Govind Nargundkar vs.

State of M.P., AIR 1952 SC 343, this Court observed as

under:

“It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance

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be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. ….”

13. In the case of Padala Veera Reddy vs. State of

A.P., 1989 Supp (2) SCC 706, this Court opined as under:

“10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

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(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

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra, (1982) 2 SCC 351)”

14. In the case of C. Chenga Reddy & Ors. vs. State

of A.P., (1996) 10 SCC 193, this Court while considering a

case of conviction based on the circumstantial evidence,

held as under:

“21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in 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 consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof

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besides relying upon some inadmissible evidence.”

15. In the case of Ramreddy Rajesh Khanna Reddy

vs. State of A.P., (2006) 10 SCC 172, this Court again

considered the case of conviction based on circumstantial

evidence and held as under:

“26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. (See Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P., (2005) 7 SCC 603).”

16. In the case of Sattatiya vs. State of

Maharashtra, (2008) 3 SCC 210, this Court held as under:

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“10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt 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.”

This Court further observed in the aforesaid decision that:

“17. At this stage, we also deem it proper to observe that in exercise of power under Article 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. However, if it is found that the appreciation of evidence in a case, which is entirely based on circumstantial evidence, is vitiated by serious errors and on that account miscarriage of justice has been occasioned, then the Court will certainly interfere even with the concurrent findings recorded by the trial court and the High Court—Bharat v. State of M.P., (2003) 3 SCC 106. In the light of the above, we shall now consider whether in the present case the prosecution succeeded in establishing the chain of circumstances leading to an inescapable conclusion that the appellant had committed the crime.”

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17. In the case of State of Goa vs. Pandurang

Mohite, (2008) 16 SCC 714, this Court reiterated the

settled law that where a conviction rests squarely on

circumstantial evidence, the inference of guilt can be

justified only when all the incriminating facts and

circumstances are found to be incompatible with the

innocence of the accused or the guilt of any person. 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.

18. It would be appropriate to consider some of the

recent decisions of this Court in cases where conviction was

based on the circumstantial evidence. In the case of G.

Parshwanath vs. State of Karnataka, (2010) 8 SCC 593,

this Court elaborately dealt with the subject and held as

under:

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“23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.

24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or

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more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court.”

19. In the case of Rajendra Pralhadrao Wasnik vs.

State of Maharashtra, (2012) 4 SCC 37, while dealing

with the case based on circumstantial evidence, this Court

observed as under:

“12. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion

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of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete as not to leave any substantial doubt in the mind of the court. Irresistibly, the evidence should lead to the conclusion which is inconsistent with the innocence of the accused and the only possibility is that the accused has committed the crime.

13. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.”

20. Last but not least, in the case of Brajendrasingh

vs. State of M.P., (2012) 4 SCC 289, this Court while

reiterating the above principles further added that:

“28. Furthermore, the rule which needs to be observed by the court while dealing with

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the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial. (Ref. Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220; Shivu v. High Court of Karnataka, (2007) 4 SCC 713 and Shivaji v. State of Maharashtra, (2008) 15 SCC 269)”

21. As discussed hereinabove, there is no dispute with

regard to the legal proposition that conviction can be based

solely on circumstantial evidence but it should be tested on

the touchstone of law relating to circumstantial evidence as

laid down by this Court. In such a case, all circumstances

must lead to the conclusion that the accused is the only one

who has committed the crime and none else.

22. From the prosecution side, a number of witnesses

have been examined to complete the chain of events and to

prove the version given in the FIR and subsequent thereto.

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We have re-appreciated and analysed the evidence brought

on record from the prosecution side. On the analysis of the

evidence, we have found many inconsistencies and

infirmities in the prosecution version as mentioned

hereinafter.

23. Admittedly, there is no eye witness in this case

despite the fact that the occurrence took place in the cargo

ship and obviously some of the crew members were living

and/or on duty around the ship. Both the accused and the

deceased were good friends and both were staying in one

cabin viz. Cabin No.25. Before the occurrence, the accused

was shifted to Cabin No.23. Admittedly, therefore both the

accused and the deceased were staying in separate cabin

on the date of occurrence.

24. The accused-appellant and the deceased were

helmsmen on the ship which was sailing from South Africa

to Japan via Singapore. Since the auto-pilot went out of

order and could not be repaired, the crew members were

directed to manually steer the ship. The accused and one

Talghakar showed reluctance to steer the ship manually

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and insisted for repair of the auto-pilot and payment of their

long overdue overtime. The prosecution case is that the

accused and the said Talghakar instigated other crew

members to insist and obtain it in writing from the Captain

(PW-5) that the ship would be got repaired at Japan

otherwise they (crew members) shall not allow moving of

the ship from Singapore.

25. The prosecution case is that the accused is alleged

to have confessed before PW-6 about the commission of the

offence and the blood-stained knife was handed over to PW-

6 which was subsequently seized but no blood was

noticeable on the clothes of the appellant which were found

at the relevant time. The other helmsmen, namely, Baria

and Talghakar who were present when the appellant is

alleged to have made confession before PW-6, were not

examined by the prosecution.

26. The knife (Ex.P-3) was not shown to the doctor

concerned who had conducted post mortem examination on

the dead body of the deceased to find out whether the

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injuries could have been caused by that weapon.

Surprisingly, another knife (Ex.2b) alleged to have been

recovered from the boiler suit was also not shown to the

doctor to ascertain whether the said knife was also used in

the commission of the offence.

27. From the evidence, it reveals that after the said

incident the appellant was tied up and kept on the bridge

for at least 2 to 3 days before being shifted. The contention

of the appellant’s counsel was that the appellant was

susceptible of being forced to hold the knife (Ex.P-3) so as

to get his fingerprints on the knife which was never kept

inside the fish room along with the dead body.

28. Apart from the aforesaid, it appears from the post

mortem report that there were about 14 stab wounds on

the neck but there was no blood found on the dress of the

appellant or on the scene of occurrence. Though the

deceased was alleged to have been assaulted as many as

14 times by a sharp-edged weapon and there was massive

blood at the site of the offence, no blood had spilled on the

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appellant or his clothes. Moreover, there is nothing on

record by way of explanation from the prosecution side as

to why the clothes of the appellant were not seized.

Further, the alleged knife (Ex.P-3) was not shown to the

doctor who conducted the post mortem of the deceased in

Honkong to take his opinion as to whether it was Ex.P-3

alone which could have caused those injuries especially

when another knife was found from the boiler suit.

29. A very relevant piece of evidence which has been

noticed by the High Court, but not given due consideration,

is that apart from the blood-stained knife (Ex. P-3) and

certain other items mentioned in the letter of Investigating

Officer, one sealed cardboard parcel containing blue soaked

boiler suit worn by the deceased at the time of incident was

also sent to CFSL for examination and opinion. In the said

sealed cardboard box, two Exhibits (2a and 2b) were found.

Ex.2a was the dark blue coloured boiler suit and the Ex.2b

was metallic blade fitted in a wooden handle like a knife.

The length of the metallic blade is about 5.5 centimeter

with one edge sharp and another blunt having a round tip

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at one end. None of the prosecution witnesses including

the Investigating Officer, stated anything as to how and

wherefrom the said knife (Ex.2b) was recovered and kept

with the boiler suit in the same cardboard box. This knife

(Ex.2b) also bore human blood-stained matching ‘O’ group

of the deceased. As per the post mortem report, stab

wounds on the neck and chest of the deceased might be by

the use of the said weapon Ex.2b. The said knife (Ex.2b)

was not subjected to examination to find out the presence

of fingerprints, if any, of the appellant. The said knife

(Ex.2b) was also not shown to the doctor (PW-19) who

conducted the post mortem examination on the body of the

deceased, to seek his opinion if the same could have been

possible weapon of offence. Even the opinion of the expert

witness (PW-22) was not sought as to whether the cuts on

the boiler suit could have been caused by that knife.

30. One more important aspect which has not been

taken note of by the trial court and the High Court is that as

per the prosecution case, the appellant was the trouble

maker and instigated other crew members not to steer the

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ship manually unless the officers give it in writing about

fulfillment of their demand of payment of long overdue

overtime. This vital piece of evidence regarding the enmity

of the appellant with the higher officials and others has

been suppressed: instead, the prosecution tried to show

that there was no enmity towards the appellant.

31. Admittedly, after the alleged incident, the Master of

the ship got the scene of offence cleaned like a vision and

nothing was kept intact in and around the cabin where the

offence was committed. Even the Investigating Officer

failed to inspect the cabin. No site plan was prepared by

the Investigating Officer. Before the arrival of the

Investigating Agency officials, the place of occurrence

including cabin was completely washed and cleaned in such

a way as if nothing had happened in the cabin and the

place around it.

32. On consideration of all these relevant facts and vital

piece of evidence, it can safely be concluded that the

offence committed by the appellant has not been fully

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established beyond all reasonable doubts. The very fact

that two blood-stained knives were found by the

prosecution proves that the prosecution failed to give

sufficient explanation as to who had assaulted the

deceased by using another knife (Ex.2b). The High Court

has committed grave error in holding that in view of the

findings arrived at by the trial court that offence was

committed by using the knife (Ex.P-3), the presence of

another knife (Ex.2b) with blood-stains will not demolish

the case of the prosecution. In our view, from the

circumstances the conclusion of the guilt of the appellant

herein has not been fully established beyond all shadow of

doubt as the circumstances are not conclusive in nature --

neither the chain of events is complete nor the

circumstances lead to the conclusion that the offence was

committed by the appellant and none else. Hence, the

impugned judgment of the High Court affirming the

judgment of conviction passed by the trial court cannot be

sustained in law.

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33. For the reasons aforestated, this appeal deserves to

be allowed and the impugned judgment is liable to be set

aside. This appeal is, accordingly, allowed and the

judgments of the High Court and the trial court are set

aside. The appellant is directed to be released forthwith if

not required in any other case.

…………………………….J. (P. Sathasivam)

…………………………….J. (M.Y. Eqbal)

New Delhi, July 1, 2013.

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MAJENDRAN LANGESWARAN Vs STATE (NCT OF DELHI)

MAJENDRAN LANGESWARAN Vs STATE (NCT OF DELHI)