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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1432-1434 OF 2011 STATE OF U.P. … … ...APPELLANT(S)

:VERSUS:

SUNIL … … ...RESPONDENT(S)

WITH CRIMINAL APPEAL NOS.1423-1424 OF 2011

REKHA SENGAR … … ...APPELLANT(S)

:VERSUS:

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

J U D G M E N T

Pinaki Chandra Ghose, J.

1. Present appeals have been directed against the judgment

dated 23rd May, 2008 passed by the High Court of Judicature

at  Allahabad  in  Criminal  Appeal  No.2968  of  2007  with

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

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

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passed by the learned Additional Sessions Judge, Etawah in

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

accused-respondent was acquitted of  the offence punishable

under Section 302 read with Section 34 of the Indian Penal

Code. Capital Sentence Reference for confirmation of the death

sentence was consequently rejected.

1. Brief facts necessary for adjudication of the present case

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

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

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

11.30  pm  on  02.09.2000  narrating  that  complainant’s

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

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

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

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

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

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

Later  when  the  complainant  failed  to  have  further

communication on telephone, she left for her parents’ house

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

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

was  set  into  motion  after  an  FIR  was  registered  by  the

complainant on the basis of written report. The said Suresh

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

confessional  statement  made  by  the  accused,  a  knife,

blood-stained clothes and other articles were recovered by the

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

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

respondent herein was also unearthed on the basis of the said

confessional  statement.  After  conclusion of  the investigation

charge-sheet was submitted before the learned Magistrate who

committed the case to the Court of Additional Sessions Judge,

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

and therefore criminal proceedings against him stood abated.

The Trial Court convicting the accused Sunil under Sections

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

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

under Section 429 of IPC.  

2. Being  aggrieved,  the  accused-respondent  preferred

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

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

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

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

dated 23rd May,  2008 set  aside the order of  conviction and

sentence  passed  by  the  Trial  Court  and  acquitted  the

accused-respondent.  Consequently,  Capital  Sentence

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

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

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

Appeal Nos.1423-1424 of 2011, respectively.   

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

criminal appeal of accused-respondent on the basis of failure

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

reasonable doubt and on the basis of circumstantial evidence.

The  High  Court  in  its  finding  made  four  important

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

respondent herein for the reason of improvement in statement;

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

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

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

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recovery of  weapon and other  articles  may be relevant,  but

could not be relevant against accused-respondent herein; and

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

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

Court.

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

considerable  length.  During  the  course  of  hearing,  learned

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

It is the submission of the learned counsel for appellants that

the  case  has  been  proved  on  the  basis  of  circumstantial

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

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

witness also identified both the accused before the Trial Court.

Memo of recovered articles as a result of disclosure statement

was  not  only  admissible  against  accused  Suresh  Pal  (now

deceased) but is also admissible against accused-respondent

herein. It was further submitted that confessional statement of

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

accused-respondent  also.  He  therefore  relied  upon  the

judgment of this Court in the case of  Haroon Haji Abdulla

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

641, wherein this Court observed: “No  doubt  both  Bengali  and  Noor  Mohammad retracted  their  statements  alleging  duress  and torture. But these allegations came months later and it is impossible to heed them. The statements were, therefore,  relevant.  Both  Bengali  and  Noor Mohammad were jointly  tried with Haroon right  to the  end and all  that  remained to  be  done was to pronounce  judgment.  Although  Bengali  was convicted by the judgment, the case was held abated against him after his death. In Ram Sarup Singh and Others v. Emperor-(1),  J was put on his trial along with L; the trial proceeded for some time and about six months before the delivery of judgment, when the trial had proceeded for about a year, J died. Before his death J's confession had been put on the record. R. C. Mitter, J. (Henderson, J. dubitante) allowed the confession to go in for corroborating other evidence but not as substantive evidence by itself. Of course, the  confession  of  a  person  who  is  dead  and  has never  been  brought  for  trial  is  not  admissible under S.  30 which  insists  upon  a  joint  trial.  The statement becomes relevant under s. 30 read with S. 32(3) of the Evidence Act because Bengali was fully tried jointly with Haroon. There is, however, difficulty about Noor Mohammad's statement because his trial was separated  and the  High  Court  has  not  relied upon it.”

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

arguments by submitting that the prosecution version was not

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

was also confirmed by FSL Report, which proved presence of

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

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

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

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

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

the  same  was  upheld  in  criminal  revision  before  the  High

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

Trial  Court  had  rightly  treated  it  as  an  adverse  inference

against the accused-respondent herein.

6. Learned counsel appearing for the accused-respondent,

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

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

who is respondent herein. Prosecution has not produced any

witness or evidence to connect the accused-respondent with

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

improved  her  statement  apropos  presence  of  the

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

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

the  written  complaint/FIR or  in  the  statement  made before

police.  Learned  counsel  for  the  accused-respondent  stoutly

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defended  his  client  by  concluding  that  drawing  adverse

inference  against  the  accused  due  to  his  refusal  to  give

specimen palm impression was not justified as earlier  palm

impression report came in negative and application moved by

the accused praying for sending footprints and fingerprints to

some other  laboratory  was  rejected  by  the  Trial  Court  vide

order dated 09.01.2007.

7. After  careful  perusal  of  the  evidence  and  material  on

record,  we  are  of  the  considered  opinion  that  the  following

question would play a crucial role in helping us reaching an

upright decision:  Whether  compelling  an  accused  to  provide  his

fingerprints or footprints etc. would come within the

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

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

“witness” against himself?   

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

of India which reads as follows:

“Article 20: Protection in respect of conviction  for offences.  (1) … … …  (2) … … …  (3) No person accused of any offence shall be

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compelled to be a witness against himself.”

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

judicial pronouncements made by this Court commencing with

celebrated case of  State of Bombay Vs. Kathi Kalu Oghad

& Ors., (1962) 3 SCR 10, wherein it was held:  “To be a witness’ may be equivalent to ‘furnishing evidence’  in  the  sense  of  making  oral  or  written statements,  but  not  in  the  larger  sense  of  the expression  so  as  to  include  giving  of  thumb impression or impression of palm or foot or fingers or specimen  writing  or  exposing  a  part  of  the  body. ‘Furnishing evidence’  in  the  latter  sense  could  not have  been  within  the  contemplation  of  the Constitution-makers  for  the  simple  reason  that  – thought  they  may  have  intended  to  protect  an accused  person  from  the  hazards  of  self incrimination, in the light of the English Law on the subject  –  they  could  not  have  intended  to  put obstacles  in  the  way  of  efficient  and  effective investigation into crime and of bringing criminals to justice.  The  taking  of  impressions  or  parts  of  the body  of  an  accused  person  very  often  becomes necessary to help the investigation of a crime. It is as much  necessary  to  protect  an  accused  person against being compelled to incriminate himself, as to arm  the  agents  of  law  and  the  law  courts  with legitimate powers to bring offenders to justice.”

9. We may quote another relevant observation made by this

Court in the case of Kathi Kalu Oghad, (supra). “When  an  accused  person  is  called  upon  by  the

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Court or any other authority holding an investigation to  give  his  finger  impression  or  signature  or  a specimen of  his  handwriting,  he  is  not  giving  any testimony of the nature of a ‘personal testimony’. The giving of  a ‘personal testimony’ must depend upon his volition. He can make any kind of statement or may refuse to  make any statement.  But  his  finger impressions or his handwriting, in spite of efforts at concealing  the  true  nature  of  it  by  dissimulation cannot  change  their  intrinsic  character.  Thus,  the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression ‘to be a witness.”

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

three-Judge Bench of this Court while considering testimonial

character  of  scientific  techniques  like  Narco  analysis,

Polygraph  examination  and  the  Brain-Electric  activation

profile held that  “145. The next issue is whether the results gathered from  the  impugned  tests  amount  to  ‘testimonial compulsion’,  thereby attracting  the  prohibition  of Article  20(3).  For  this  purpose,  it  is  necessary  to survey  the  precedents  which  deal  with  what constitutes  ‘testimonial  compulsion’  and  how testimonial acts are distinguished from the collection of  physical  evidence.  Apart  from  the  apparent distinction  between  evidence  of  a  testimonial  and physical  nature,  some forms of  testimonial  acts lie outside the scope of Article 20(3). For instance, even though acts such as compulsorily obtaining specimen signatures and handwriting samples are testimonial in nature, they are not incriminating by themselves if

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they  are  used  for  the  purpose  of  identification  or corroboration  with  facts  or  materials  that  the investigators  are  already  acquainted  with.  The relevant consideration for extending the protection of Article  20(3)  is  whether  the  materials  are  likely  to lead to incrimination by themselves or ‘furnish a link in  the  chain  of  evidence’  which  could  lead  to  the same  result.  Hence,  reliance  on  the  contents  of compelled testimony comes within the prohibition of Article  20(3)  but  its  use  for  the  purpose  of identification  or  corroboration  with  facts  already known to the investigators is not barred.

146. It  is  quite  evident  that  the  narco  analysis technique  involves  a  testimonial  act.  A  subject  is encouraged to  speak in  a  drug-induced state,  and there is no reason why such an act should be treated any  differently  from  verbal  answers  during  an ordinary  interrogation.  In  one  of  the  impugned judgments,  the  compulsory  administration  of  the narco  analysis  technique  was  defended  on  the ground that at the time of conducting the test, it is not known whether the results will eventually prove to  be  inculpatory  or  exculpatory.  We have  already rejected this reasoning. We see no other obstruction to the proposition that the compulsory administration of  the  narco  analysis  technique  amounts  to ‘testimonial  compulsion’  and  thereby  triggers  the protection of Article 20(3).”

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

directed to give his  foot-prints for  corroboration of  evidence

but  the  same  cannot  be  considered  as  violation  of  the

protection guaranteed under Article 20 (3) of the Constitution

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

such  direction  of  the  Court  may  lead  to  adverse  inference,

nevertheless, the same cannot be entertained as the sole basis

of conviction.

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

prosecution case, conviction of the accused can be made on

the basis of circumstantial evidence provided the chain of the

circumstances is complete beyond all reasonable doubt. It was

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

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

“51. It is true that the relevant circumstances should not  be  looked  at  in  a  disaggregated  manner  but collectively.  Still,  this  does  not  absolve  the prosecution from proving each relevant fact.

“6. In a case of circumstantial  evidence, each circumstance  must  be  proved  beyond  reasonable doubt  by  independent  evidence  and  the circumstances so proved, must form a complete chain without  giving  room  to  any  other  hypotheses  and should  be  consistent  with  only  the  guilt  of  the accused.  (Lakhjit  Singh  Vs.  State  of  Punjab,  1994 Supp (1) 173)”

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

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

admissibility  of  evidence  in  a  case  solely  based  upon

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circumstantial evidence that  

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

Therefore, it is a proviso by way of an exception to Sections 25 and 26 of the Evidence Act. If the facts deposed under Sec- tion 27 are not voluntary, then it will not be admissible, and will  be hit  by Article 20(3) of  the Constitution of  India.  [See State of Bombay vs. Kathi Kalu Oghad, [AIR 1961 SC 1808].

56. The Privy Council in Pulukori Kottaya vs. King Emperor, [1947 PC 67] held that Section 27 of the Evidence Act is not artistically worded but it provides an exception to the prohibi- tion imposed under the preceding sections. However, the ex- tent of discovery admissible pursuant to the facts deposed by accused depends only to the nature of the facts discovered to which the information precisely relates.

57. The limited nature of the admissibility of the facts discov- ered pursuant to the statement of the accused under Section 27 can be illustrated by the following example: Suppose a per- son accused of murder deposes to the police officer the fact as a result of which the weapon with which the crime is commit- ted is discovered, but as a result of such discovery no infer- ence can be  drawn against  the accused,  if  there is  no evi- dence  connecting  the  knife  with  the  crime  alleged  to  have been committed by the accused.

58. So the objection of the defense counsel to the discovery made by the prosecution in this case cannot be sustained. But the discovery by itself does not help the prosecution to sustain the conviction and sentence imposed on A-4 and A-5 by the High Court.”

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

without any hesitation be said that the basic foundation of the

prosecution had crumbled down in this case by not connecting

the respondent with the incident in question. And when basic

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foundation  in  criminal  cases  is  so  collapsed,  the

circumstantial  evidence  becomes  inconsequential.  In  such

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

judgment  of  conviction  could  be  founded  on  the  sole

circumstance that recovery of weapon and other articles have

been made.

15. After  examining every evidence and material  on record

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

are  of  the  considered  opinion  that  the  prosecution  has

miserably  failed  to  connect  the  occurrence  with  respondent

herein.  Resultantly,  the  judgment  and  order  passed  by  the

High Court  setting  aside  of  conviction  order  passed  by  the

Trial Court is hereby upheld. 16. The appeals are, accordingly, dismissed.

...................................J       (Pinaki Chandra Ghose)

...................................J       (Rohinton Fali Nariman)

New Delhi; May 02, 2017.