AFTAB AHMAD ANSARIversusSTATE OF UTTARANCHAL

                   [2010] 1 S.C.R. 1027


                  AFTAB AHMAD ANSARI                           A
                              v.
                 STATE OF UTTARANCHAL
             (Criminal Appeal No. 836 of 2005)

                    JANUARY 12, 2010
                                                               B
         [J.M. PANCHAL AND T.S. THAKUR, JJ.]

      Penal Code, 1860 - ss.302, 376 and 201 - Rape and
 murder of minor girl - Circumstantial evidence - Appreciation
 of - Appellant seen fleeing away from near the place where C
 dead body of deceased was found - Blood stained frock and
 underwear of deceased recovered from house of appellant's
 sister pursuant to voluntary disclosure statement made by
 appellant while in police custody - Underwear of appellant
 seized during course of investigation found stained with blood D
 and semen - Appellant made extra judicial confession before
 PW5 - ConviCtion of appellant by Courts below - Propriety
of - Held: Proper - The chain of circumstantial evidence was
complete and showed that, within all human probability, rape
and murder of deceased was committed by appellant and E
none else and he had also caused disappearance of
evidence of those offences - When the incriminating
circumstances proved were put to appellant while recording
his statement under s.313, CrPC, he merely denied the same
- Such denial on part of appellant and failure to explain the F
circumstances proved was an additional link in the chain of
circumstances to bring home the charge against appellant -
Code of Criminal Procedure, 1973 - s.313 - Evidence Act,
1872 - ss. 26 and 27.

     Appellant alongwith another person was prosecuted         G
for commission of rape and murder of the five year old
daughter of PW1 and for causing disappearance of
evidence of those offences. The prosecution case rested
on circumstantial evidence. The trial court held that the
                            1027                               H
   1028    SUPREME COURT REPORTS              [2010] 1 S.C.R.


A four circumstances viz., 1) that both the accused were
  seen by PW-3 fleeing away from near the place where the
  dead body of the deceased was found; 2) that blood
  stained frock and underwear of deceased were
  recovered from the house of appellant's sister pursuant
B to disclosure statement made by appellant; 3) that
  underwears of both the accused, seized during course
  of investigation, were stained with human blood and
  semen; and 4) that appellant made extra-judicial
  confession before PWS; were fully established, and
c accordingly convicted both the accused under ss.302,
  376 and 201 of IPC and sentenced them to death. The
  High Court acquitted the other accused, but confirmed
  the conviction of appellant under ss.302, 376 and 201 IPC,
  though it modified the sentence to life imprisonment.
0 Hence the present appeal.
       Dismissing the appeal, the Court

       HELD: 1.1. The law relating to circumstantial
  evidence is well settled. In dealing with circumstantial
E evidence, there is always a danger that conjecture or
  suspicion lingering on mind may take place of proof.
  Suspicion howsoever strong cannot be allowed to take
  place of proof and, therefore, the Court has to judge
  watchfully and ensure that the conjectures and
F suspicions do not take place of legal proof. However, it
  is no derogation of evidence to say that it is
  circumstantial. Human agency may be faulty in
  expressing picturization of actual incident but the
  circumstances cannot fail. Therefore, many a times, it is
G aptly said that "men may tell lies, but circumstances do
  not". 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 must be proved individually and
  only thereafter the Court should consider the total
H
         AFTAB AHMAD ANSARI v. STATE OF                1029
                 UTTARANCHAL

cumulative effect of all the proved facts, each one of         A
which reinforces the conclusion of the guilt. If the
combined effect of all the 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 more of these facts, by itself/themselves, is/are not   B
decisive. [Para 4] [1043-E-H; 1044-A-B]

      1.2. The circumstances proved should be such as to
 exclude every hypothesis except the one sought to be
 proved. But this does not mean that before the                C
 prosecution case succeeds in a case of 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 far complete as not to leave any
 reasonable ground for conclusion consistent with the          D
 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. Where the various links in a chain
are in themselves ci:>mplete, then a false plea or a fal~e
defence may be called into aid only to lend assurance to       E
the Court. If the circumstances proved are consistent with
the innocence of the accused, then the accused is entitled
to the benefit of doubt. However, in applying this
principle, distinction must be made between facts called
primary or basic on the one hand and inference of facts        F
to be drawn from them on the other. In regard to the proof
of basic or primary facts, the Court has to judge the
evidence and decide whether that evidence proves a
particular fact or not and if that fact is proved, the
question arises whether that fact leads to the inference       G
of guilt of the accused person or not. In dealing with this
aspect of the problem, the doctrine of benefit of doubt
applies. Although there should be no missing links in the
case, yet it is not essential that every one of the links
must appear on the surface of the evidence adduced and         H
    1030    SUPREME COURT REPORTS              [2010] 1 S.C.R.


A some of these links may have to be inferred from the
  proved facts. In drawing these inferences or
  presumptions, 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. [Para 4] (1044-
8 A-G]

          2.1. So far as the circumstance, namely, that the
    accused were seen fleeing away from near the place
    where the dead body of the deceased was lying is
C   concerned, the prosecution relied upon the testimony of
    PW3. A fair reading of the evidence tendered by this
    witness makes it evident that though he is relative of
    PW1, he has stated the facts seen by him in a simple
    manner and without any noticeable embellishments. If
    this witness wanted to implicate the appellant falsely in
D   the case because of his relationship with PW1 (the first
    informant), nothing prevented him from stating before the
    police and the court that he had seen the appellant
    carrying the dead body of the deceased and throwing the
    same. However, he has not made any false claim/
E   exaggeration in his testimony at all and stated that he
    had seen the appellant fleeing from near the place where
    the dead body was lying. The reason as to why in the
    early morning he was out of his house is stated by him
    (i.e. he was going to jungle for answering the call of
F   nature), which this Court finds to be most natural. It could
    not be even remotely suggested by the defence that a
    constructed latrine was available in the house of PW3
    and, therefore, it was not necessary for him to move out
    of his house in the early morning to go tp jtingle for
G   answering call of nature. On facts, the claim made by PW3
    that he had seen the appellant hurriedly entering the
    house of his sister sounds probable. The Trial Court,
    which had the advantage of observing demeanour of this
    witness, found him to be truthful. [Paras 9, 10 and 11]
H   (1046-F; 1048-B-H; 1049-A-B]
        AFTAB AHMAD ANSARI v. STATE OF                1031
                UTTARANCHAL
     2.2. The plea that PW3 maintained silence at the time A
when the inquest on the dead body of the deceased was
held and did not tell the Investigating Officer that he had
seen the appellant running away from near the place
where the dead body was lying would indicate that he
had not seen the appellant running away, is merely stated B
to be rejected. The occasion for this witness to tell the
Investigating Officer that he had seen the appellant
running away from near the place where the dead body
was lying would arise only when the Investigating Officer
was to record his statement under Section 161, CrPC. c
The basic purpose of holding inquest on the dead body
is to ascertain prima facie the nature of death and to find
out whether there are injuries on the dead body or not.
The inquest panchnama cannot be treated as statement
of the witness recorded under Section 161 CrPC wherein
                                                            0
he is supposed to narrate the facts seen by him.
Therefore, it is not true to say that PW3 had maintained
silence and had not told the Investigating Officer at the
time of holding of the inquest that he had seen the
appellant running away from near the place where the E
dead body was lying. The so called silence on the part
of this witness cannot be considered to be unnatural at
all nor the same makes his testimony doubtful in any
manner. [Para 11] (1049-D-H; 1050-A-C]

     2.3. The 'running away' part attributed to the           F
appellant could not be explained by him. In his further
statement, it could not be explained by the appellant as
to what made him run away from near the place where
the dead body was found and hurriedly entering into the
house of his sister. On reappraisal of the evidence of this   G
witness, this Court finds that neither the Trial Court nor
the High Court committed any error in placing reliance on
the testimony of PW3 for coming to the conclusion that
one of the incriminating circumstances, namely, that the
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    1032   SUPREME COURT REPORTS              [2010) 1 S.C.R.


A appellant was found fleeing from near the place where
  the dead body was found lying was satisfactorily proved.
  [Para 11) (1050-C-E]

         3.1. Another circumstance sought to be relied upon
    by the prosecution is that the appellant had made
8
    voluntary disclosure statement pursuant to which blood
    stained clothes of the deceased were discovered. The
    disclosure statement was made by the appellant in
    presence of PW4. The testimony of PW7, the Investigating
    Officer, makes it more than clear that after arrest, the
C   appellant had made disclosure statement and willingness
    to show the place where the clothes of the deceased
    were concealed by him. This fact is also mentioned in the
    document prepared contemporaneously i.e. seizure
    memo of the deceased's clothes. According to the
D   Investigating Officer, he had made efforts to summon
    local witnesses but none agreed to be a witness and,
    therefore, PW4 and another person were summoned to
    be panch witnesses on way to the house of the
    appellant's sister from where the clothes of the deceased
E   were recovered. The part of the disclosure statement,
    namely, that the appellant was ready to show the place
    where he had concealed the clothes of the deceased is
    clearly admissible under Section 27 of the Evidence Act,
    1872 because the same relates distinctly to the discovery
F   of the clothes of the deceased from that very place.
    (Paras 12 and 13) (1050-F-G; 1052-8-C; 1054-E]

       3.2. The contention that even if it is assumed that the
  clothes of the deceased were recovered from the house
G of the appellant's sister pursuant to the voluntary
  disclosure statement made by appellant, the prosecution
  failed to prove that the clothes so recovered belonged to
  the deceased and, therefore, recovery of the clothes
  should not be treated as an incriminating circumstances

H
        AFTAB AHMAD ANSARI v. STATE OF                 1033
                UTTARANCHAL

is devoid of merits. First of all, in the missing report, it    A
was mentioned by PW1 that his daughter aged five years,
who was wearing frock and underwear, was missing from
near the house while playing; thus, the wearing of the
frock and underwear was mentioned by the father of the
girl at the first available opportunity. The statement by       B
PW1, as well as statement made by PW2, that there were
no clothes on the dead body of the deceased has gone
unchallenged. Naturally, therefore, it was necessary for
the Investigating Officer to find out as to where the clothes
put on by the deceased were concealed. Though the               c
sister of appellant (examined as DW1) mentioned in her
testimony before the Court that the police had taken into
custody the clothes belonging to her daughter, however,
the record of the case shows that the frock and the
underwear recovered from her house pursuant to                  0
disclosure statement made by the appellant were blood
stained. It was never the case of the appellant's sister that
the frock and underwear recovered or seized by the police
were blood stained and belonged to her daughter.
Further, the clothes were recovered pursuant to the
voluntary disclosure statement made by the appellant on         E
February 9, 1998 whereas the appellant's sister made
claim that the clothes, which belonged to her daughter,
were recovered and seized on September 30, 2003 when
she was examined by the appellant as one of the defence
witnesses. If the police had seized the clothes belonging       F
to her daughter, the appellant's sister would not have
maintained tacit silence for roughly about more than five
years and would have made grievance before higher
police officers or court within reasonable time. A bare
reading of her testimony makes it more than clear that she      G
had come to depose before the Court to save the
appellant who is her real brother and stated wrong facts
for the first time before the Court. Her case that the police
personnel had given 2 to 4 blows of stick to her and
threatened her that she and her husband would be                H
    1034   SUPREME COURT REPORTS             [2010] 1 S.C.R.


A implicated in the case, does not inspire confidence of this
  Court. On overall view of the matter, this Court finds that
  it was satisfactorily proved by the prosecution that the
  frock and underwear, recovered from the house of DW1
  pursuant to the voluntary disclosure statement made by
B the appellant, belonged to the deceased. [Para 13) [1054-
  F-H; 1055-A-H; 1056-A-C]

         Pu/ukuri Kottaya & Ors. vs. Emperor AIR 1947 PC 67,
    referred to.

C       4. Yet another circumstance relied upon by the
  prosecution is that the underwear of the appellant was
  stained with blood and semen. In normal course, the
  underwear would not have blood stains at all and,
  therefore, it was for the appellant to offer explanation as
D to under what circumstances stains of blood were found
  on his underwear, seized by the police during the course
  of investigation. The fact that the underwear of the
  appellant seized by the police had human blood stains
  is sufficiently proved by the contents of report of
E Chemical Analyst. The fact that the blood stained
  underwear put on by the appellant was seized after four
  days does not make any dent in the prosecution case on
  the ground that a person would not move with such
  blood stained underwear for 3 - 4 days. One cannot lose
F sight of the fact that those stains were not visible and
  even the Investigating Officer had stated that on
  examination the underwear put on by the appellant
  appeared to be stained with semen at some places. If
  blood stains are found on the shirt or pant of a person
G then normally such person would not move in the village
  with those clothes on, because stains of blood would be
  visible and noticed by anyone. However, it is almost
  difficult for anyone to notice stains of blood on underwear
  worn by a person. Further, the sense of cleanliness of a
H rustic villager cannot be ignored by the Court. While
        AFTAB AHMAD ANSARI v. STATE OF             1035
                UTTARANCHAL

recording the statement of the appellant under Section     A
313 CrPC, it was put to him by the Judge that during the
course of investigation his blood stained underwear was
seized by the Police and his explanation was sought. In
answer to the said question, it was never claimed by the
appellant that the underwear seized was not blood          B
stained and that another underwear was substituted in
place of his underwear which was seized. [Para 14]
(1056-A-H; 1057-A-C]

     5. Another circumstance sought to be relied upon by
 the prosecution is that the appellant made extra judicial C
confession before PW5, one of the panchas when
 inquest on the dead body of the deceased was held.
What is asserted by the witness is that the appellant had
come to Court premises and told him near the shops that
he and the other accused had killed PW1 's daughter after D
committing rape on her. The witness further asserted that
the reason for making extra judicial confession by the
appellant was that he was ex-pradhan of the village and
the appellant was under an impression that the witness
would be able to help him by approaching the police. This E
witness in no uncertain terms asserted bejore the court
that he had told the Investigating Officer about the extra
judicial confession made by the appellant. The Court, on
re-appreciation of evidence, finds that it is not brought on
the record of the case that this witness was on inimical F
terms with the appellant. In fact, this witness does not
belong to the community of the appellant and belongs to
another community. There was no earthly reason for this
witness to come to the court and depose falsely about
the extra judicial confession made by the appellant. G
Though extra judicial confession is considered to be a
weak piece of evidence by the courts, this Court finds
that there is neither any rule of law nor of prudence that
the evidence furnishing extra judicial confession cannot
be relied upon unless corroborated by some other H
    1036   SUPREME COURT REPORTS               [2010] 1 S.C.R.


A credible evidence. The evidence relating to extra judicial
  confession can be acted upon if the evidence about extra
  judicial confession comes from the mouth of a witness
  who appears to be unbiased and in respect of whom
  even remotely nothing is brought out which may tend to
B indicate that he may have a motive for attributing an
  untruthful statement to the accused. Here, in this case, it
  is proved by the prosecution that PW5, was not on
  inimical terms with the appellant at all. After subjecting his
  evidence to a rigorous test on the touchstone of
c credibility, this Court finds that extra judicial confession
  referred to by the witness is reliable and is rightly
  accepted by the Trial Court and the High Court. The
  contention that when the appellant was being brought to
  the court, he was in custody and, therefore, the extra
  judicial confession referred to by PW5 would be hit by the.
0
  provisions of Section 26 of the Evidence Act and could
  not have been received in evidence, cannot be accepted.
  On the facts and In the circumstances of the case, it is
  not probablised by the defence that the appellant was in
  custody of police officer while he had made extra judicial
E confession before PW5. The evidence relating to extra
  judicial confession inspires confidence of this Court.
  [Para 15) [1057-0-H; 1059-A-D; G-H; 1060-A-D]

        State of U.P. vs. M.K. Anthony AIR 1985 SC 48, relied
F on.

     6. In the facts and circumstances of the case, the
  prosecution has proved satisfactorily and beyond
  shadow of doubt following facts: (1) The deceased went
G missing in the evening of February 5, 1998 when she
  was playing near her house; (2) Her naked dead body
  was found at about 6 a.m. on February 8, 1998 lying on
  public way; (3) She was subjected to rape and died a
  homicidal death; (4) The appellant was seen fleeing away

H
        AFTAB AHMAD ANSARI v. STATE OF                1037
                UTTARANCHAL

from near the place where th~ dead body of the deceased        A
was lying at about 4.30 a.m. of\ February 8, 1998; (5) Blood
stained frock and blood stained underwear of the
deceased concealed in the house of sister of the
appellant, were recover~d pursuant to voluntary
disclosure statement made by the appellant while in            B
police custody; (6)Underwe'u of the appellant seized
during the course of investigation was found to be
stained with blood and semen and (7) The appellant
made extra judicial confession before PW5. The
cumulative effect of the abovementioned facts taken            c
together is conclusive in establishing the guilt of the
appellant. The chain of circumstantial evidence is
complete and does not leave any reasonable ground for
conclusion consistent with the innocence of the
appellant. The chain of circumstances is such as to show       0
that within all human probability the rape and murder of
the deceased were committed by the appellant and none
else and he had also caused disappearance of evidence
of those offences. Where circumstances proved are put
to the accused through his examination under Section           E
313, CrPC and the accused merely denies the same, then
such denial would be an additional link in the chain of
circumstances to bring home the charge against the
accused. It is proved by cogent and reliable evidence that
the appellant had committed rape on the deceased and
thereafter murdered her. Here in this case, the                F
incriminating circumstances proved were put to the
appellant while recording his statement under Section
313, CrPC. In his further statement, recorded under
Section 313, the appellant has merely denied the same.
Therefore, such denial on the part of the appellant and        G
failure to explain the circumstances proved will have to
be treated as an additional link in the chain of
circumstances to bring home the charge against the
appellant. The circumstances proved establish the guilt
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    1038    SUPREME COURT REPORTS                 [2010] 1 S.C.R.


A   of the appellant beyond reasonable doubt. [Paras 16 and
    17) [1061-E-H; 1061-A-H; 1062-A-B]

         Vasa Chandrasekhar Rao vs. Ponna Satyanarayana &
    Anr. (2000) 6 SCC 286 and Geetha vs. State of Karnataka
8   (2000) 10 sec 72, relied on.

                         Case Law Reference:

        AIR 1947 PC 67              referred to         Para 13

        AIR 1985 SC 48              relied on           Para 15
c
        (2000) 6 sec 286            relied on           Para 17
        (2000) 1o sec 12            relied on           Para 17

        CRIMINAL APPELLATE JURISDICTION: C;·iminal Appeal
D No .. 836 of 2005.

        From the Judgment & Order dated 17.12.2004 of the High
    Court of Uttaranchal at Nainital in Criminal Appeal No. 36 of
    2004.

E       J.C. Gupta, Rajesh, Dharm Singh, V.K. Agrawal for the
    Appellant.

        S.S. Shamshery, Jatinder Kumar Bhatia for the
    Resondent.
F       The Judgment of the Court was delivered by

       J.M. PANCHAL, J. 1. The appellant and one Mumtaz
  were prosecuted for commission of rape and murder of
  Yasmeen aged five years daughter of Nayeem Ahmad and for
G causing disappearance of evidence of those offences. The
  learned Additional District and Sessions Judge, First FTC
  Court, Nainital, by judgment dated January 7, 2004, rendered
  in Sessions Trial No.252 of 1998, convicted the appellant and
  Mumtaz under Sections 302, 376 and 201 of Indian Penal Code
H
/



         AFTAB AHMAD ANSARI v. STATE OF                    1039
          UTIARANCHAL [J.M. PANCHAL, J.]

(IPC) and imposed penalty of death sentence for commission          A
of offence punishable under Section 302 IPC as well as R.I. for
life for commission of offence punishable under Section 376
IPC and a fine of Rs.10,000/- in default R.I. for one year and
R.I. for seven years and a fine of Rs.5,000/- in default R.I. for
one year for commission of offence punishable under Section         B
201 IPC.

      2. Feeling aggrieved, the appellant and Mumtaz preferred
Criminal Appeal No. 36 of 2004 whereas Reference made
under Section 366 of the Code of Criminal Procedure by the          C
learned Additional Sessions Judge in view of death sentence
passed against both the accused was registered as Criminal
Reference 1 of 2004 before the High Court of Uttaranchal at
Nainital. The Division Bench of the High Court, by juqgment
dated December 17, 2004, has rejected the Reference and
partly allowed the appeal by acquitting accused Mumtaz but          D
affirmed the conviction of the appellant under Sections 302, 376
and 201 IPC. The death penalty awarded to the appellant for
commission of offence punishable under Section 302 IPC is
modified and the appellant is sentenced to R.I. for life for
commission of the offence punishable under Section 302 IPC.         E
The High Court has further maintained sentence imposed on
the appellant under Sections 376 and 201 IPC. The
confirmation of the conviction of the appellant under Sections
302, 376 and 201 IPC by the High Court and imposition of
different punishments for those offences, has given rise to the     F
instant Appeal by Special Leave.

      3. Mr. Nayeem Ahmad is resident at Mundia Pistor Village,
 Bajpur, District Udham Singh Nagar, Uttaranchal. His daughter
Yasmeen aged five years having fair complexion and round            G
face, wearing frock, underwear and sleepers was playing near
 his house at about 5.00 p.m. in the evening of February 5, 1998.
 It was noticed that she was missing from the place where she
 was playing and, therefore, Nayeem Ahmad made frantic
·search about Yasmeen at the places of all his relatives but she
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    1040    SUPREME COURT REPORTS                 [2010) 1 S.C.R.


A could not be traced. As search made by him did not yield any
  result, he filed a missing report on February 6, 1998 at Bajpur
  Police Station mentioning, inter alia, that his daughter had
  disappeared while playing near his house and, therefore, steps
  be taken to trace her out. On February 8, 1998, Report (Exhibit
B Ka.2) was lodged at Bajpur Police Station by Shamim Ahmad
  who is real brother of Nayeem Ahmad stating, inter alia, that
  Yasmeen aged about five years daughter of his elder brother
  Nayeem Ahmad while playing near the house of Nayeem
  Ahmad had disappeared at about 5.00 p.m. in the evening of
c February 5, 1998 for which Nayeem Ahmad had lodged a
  missing report at the Police Station, but at about 6.00 a.m. on
  February 8, 1998, her dead body was found lying on the public
  way in front of the house of Haji Khursheed, son of Bashir
  Ahmad of village Bajpur and, therefore, legal action be taken.
  On receiving this information, concerned police personnel
0
  reached the place where dead body of the deceased was lying.
  The inquest on the dead body of the deceased was held and
  necessary arrangements were made for sending the dead body
  for post mortem examination. The post mortem examination
E was carried out on February 8, 1998. The examination revealed
  that the deceased was subjected to rape and thereafter
  strangulated. On February 9, 1998, the Investigating Officer, on
  the basis of the information given by the informer, arrested both
  the accused persons under Sections 302, 376 and 201 IPC.
  While in custody, the appellant and Mumtaz made disclosure
F statements to the Investigating Officer pursuant to which the
  appellant discovered one frock with blood marks, one white
  cotton underwear with black stripes having blood stains and
  one bed sheet of light green colour with plenty of blood marks
  from the house of sister of the appellant. The articles
G discovered were seized under a panchnama and sent to
  forensic science laboratory for analysis. The Investigating
  Officer recorded the statement of those persons who were
  found to be conversant with the facts of the case. On receipt of
  report from the analyst and on completion of investigation, the
H
         AFTAB AHMAD ANSARI v. STATE OF                 1041
          UTIARANCHAL [J.M. PANCHAL, J.]

 appellant and Mumtaz were charge-sheeted in the Court of      A
 learned Judicial Magistrate, First Class for commission of
 offences punishable under Sections 302, 376 and 201 IPC.

        The offences punishable under Sections 302 and 376 IPC
  are exclusively triable by a Court of Sessions. Therefore, the 8
  case was committed to the Court of learned Additional District
  and Sessions Judge, Nainital for trial. The learned Judge
  framed necessary charges against the appellant and Mumtaz
  for commission of offences punishable under Section 302, 376
  and 201 IPC. The same were read over to them. They pleaded C
  not guilty to the same and claimed to be tried. Therefore,
  prosecution examined seven witnesses and produced
  documentary evidence to prove its case against the appellant
  and Mumtaz. After recording of evidence of prosecution
  witnesses was over, the learned Judge explained to the
  appellant and Mumtaz the circumstances appearing against D
  them in the evidence of prosecution witnesses and recorded
  their further statement as required by Section 313 of the Code
  of Criminal Procedure, 1973. In the further statements, the
  appellant and Mumtaz pleaded ignorance in respect of certain
  facts whereas in relation to some other facts their claim was E
  that they were false. The appellant and Mumtaz had expressed
. desire to examine defence witnesses which was granted by the
  learned Judge. The appellant, therefore, examined DW1, Ms.
  Bilkis and DW2, Lakhbinder Singh alias Lakha in defence. The
  learned Judge noticed that the case was entirely resting upon F
  circumstantial evidence. After holding that the deceased died
  a homicidal death, the learned Judge appreciated the evidence
  and held that four circumstances, namely, that (1) both the
  accused were seen by PW-3, Naseed Ahmad, at about 4.30
  a.m. on 8.2.1998 fleeing away from near the place where the G
  dead body of deceased Yasmeen was found after some time;
  (2) on the disclosure statement made by the appellant, blood .
  stained frock and underwear of the deceased and blood
  stained bed sheet were recovered; (3) underwears of both the
  accused, seized, were stained with human blood and semen; H
    1042     SUPREME COURT REPORTS                  [2010) 1 S.C.R.


A   and (4) extra-judicial confession was made by the appellant
    before PW-5, Anand Swaroop, are firmly established, to bring
    home guilt of the accused under Sections 302, 376 and 201
    IPC. The learned Judge noticed that the chain of circumstances
    established was complete, cumulative effect of which was
B   indicating that in all human probability, the offences were·
    committed by the appellant and Mumtaz and by none other. In
    view of abovementioned conclusions, the learned Judge
    convicted the appellant and Mumtaz under Section 302, 376
    and 201 IPC. Thereafter, the learned Judge heard the appellant
c   and Mumtaz on the question of sentence to be imposed on
    them for commission of abovementioned offences. The learned
    Judge noticed that this was the rarest of rare case falling within
    the purview of guidelines laid down by this Court in Mau/ai &
    Anr. Vs. State of M.P. AIR 2000 SC 177 and imposed death
    penalty on both the accused for commission of offence
0
    punishable under Section 302 IPC. The learned Judge further
    imposed punishment of R.I. for life and a fine of Rs.10,000/-
    and in default R.I. for one year for commission of offence
    punishable under Section 376 IPC. The learned Judge further
    imposed sentence of R.I. for seven years and a fine of
E   Rs.5,000/- and in default R.I. for one year for commission of
    offence punishable under Section 201 IPC by judgment dated
    January 7, 2004. The imposition of death sentence resulted into
    Criminal Reference under Section 366 of the Code of Criminal
    Procedure, 1973. The appellant and Mumtaz also being
F   aggrieved by the judgment of the Trial Court preferred Criminal
    Appeal No.36 of 2004 before the High Court of Uttaranchal at
    Nainital. The reference and appeal were heard together. The
    High Court on re-appreciation of evidence came to the
    conclusion that three circumstances were proved by the
G   prosecution, namely, (1) both the appellants were seen by
    PW3, Naseem Ahmad at about 4.30 a.m. on February 8, 1998
    fleeing from near the place where the dead body of the
    deceased was found; (2) blood stained frock and underwear
    of the deceased and blood stained bed sheet were recovered
H
         AFTAB AHMAD ANSARI v. STATE OF                       1043
          UTTARANCHAL [J.M. PANCHAL, J.]
pursuant to voluntary disclosure statement made by the                 A
appellant; and (3) extra judicial confession was made by the
appellant before PW-5, Anand Swaroop. The Division Bench
by judgment dated December 17, 2004 has partly allowed the
appeal. The High Court has set aside the conviction of Mumtaz
recorded by the Trial Court but confirmed the conviction of the        B
appellant recorded by the Trial Court under Sections 302, 376
and 201 IPC. The High Court has further modified the sentence
of death imposed on the appellant for commission of offence
punishable under Section 302 IPC and awarded R.I. for life
whereas sentences awarded for commission of offences                   c
punishable under Sections 376 and 201 have been confirmed.

      4. This Court has heard the learned counsel for the parties
 and considered the documents forming part of the appeal. It is
 relevant to notice that the prosecution has not claimed that the
 rape and murder of the deceased was witnessed by anyone               D
 and no direct evidence regarding the same is adduced before
 the court. Admittedly, the whole case against the appellant rests
 on circumstantial evidence. The law relating to circumstantial
 evidence is well settled. In dealing with circumstantial evidence,
 there is always a danger that conjecture or suspicion lingering       E
 on mind may take place of proof. Suspicion howsoever strong
cannot be allowed to take place of proof and, therefore, the
Court has to judge watchfully and ensure that the conjectures
and suspicions do not take place of legal proof. However, it is
no derogation of evidence to say that it is circumstantial. Human      F
agency may be faulty in expressing picturization of actual
incident but the circumstances cannot fail. Therefore, many a
times, it is aptly said that "men may tell lies, but circumstances
do not". In cases where evidence is of a circumstantial nature,
the circumstances from which the conclusion of guilt is to be          G
drawn should, in the first instance, be fully established. Each
fact must be proved individually and only thereafter the Court
should consider the total cumulative effect of all the proved facts,
each one of which reinforces the conclusion of the guilt. If the
combined eff~ct of all the facts taken together is conclusive in       H
    1044    SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A establishing the guilt of the accused, the conviction would be
  justified even though it may be that one or more of these facts,
   by itself/themselves, is/are not decisive. The circumstances
   proved should be such as to exclude every hypothesis except
   the one sought to be proved. But this does not mean that
B before the prosecution case succeeds in a case of
   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
   far complete as not to leave any reasonable ground for
c  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. Where the various
  links in a chain are in themselves complete, then a false plea
  or a false defence may be called into aid only to lend assurance
  to the Court. If the circumstances proved are consistent with the
0
  innocence of the accused, then the accused is entitled to the
  benefit of doubt. However, in applying this principle, 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 the proof of basic or primary facts, the Court has
E to judge the evidence and decide whether that evidence proves
  a particular fact or not and if that fact is proved, the question
  arises whether that fact leads to the inference of guilt of the
  accused person or not. In dealing with this aspect of the
  problem, the doctrine of benefit of doubt applies. Although there
F should be no missing links in the case, yet it is not essential
  that every one 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 or
  presumptions, the Court must have regard to the common
G course of natural events, and to human conduct and their
  relations to the facts of the particular case.

      5. Having noticed the relevant principles governing a case
  based on circumstantial evidence, this Court proposes to
H consider the question whether the case against the appellant
          AFTAB AHMAD ANSARI v. STATE OF                      1045
           UTTARANCHAL [J.M. PANCHAL, J.]

 is proved. The appellant, at the time of incident was in his early    A
 20's. He is resident of village Patia Nagla, P.S. Gatpur, Tehsil
 Thakurdwara, District Muradabad. His sister Ms. Bilkis, DW-
 1, was married to Kabir Ahmad of village Bajpur where the first
 informant is residing. The appellant used to visit and stay at the
 house of his sister. It may be mentioned that the Trial Court was     B
 of the view that four circumstances mentioned above were
 proved by the prosecution.

        6. The fact that deceased Yasmeen was subjected to rape
   and died a homicidal death is not disputed before this Court        C
..·by the appellant. This fact stands amply proved by the reliable
   testimony of Dr. J.S. Rawat, who performed autopsy on the
   dead body of the deceased and contents of post mortem
   produced at Exhibit Ka.5.

      7. Similarly the fact that naked dead body of deceased           D
 Yasmeen with injuries was found lying at about 6.00 a.m. on
 8.2.1998 in front of the house of Haji Khursheed is amply borne
 out from the trustworthy testimony of PW-1, Nayeem Ahmad,
 PW-2, Shamim Ahmad, inquest report Exhibit Ka.4 etc.
                                                                       E
       8. According to the Sessions Court and· the High Court,
 one of the incriminating circumstances proved by the
  prosecution is that witness Naseem Ahmad had seen the
 appellant and another fleeing from near the place where the
 dead body of the deceased was found lying at about 4.30 am
                                                                       F
 on February 8, 1998. The learned counsel for the appellant
 submitted that the only witness produced by the prosecution to
 prove this circumstance is PW-3, Naseem Ahmad but the said
 witness does not speak of any source of light and his silence
 of nottelling this fact to the Investigating Officer at the time of
 holding of inquest is most unnatural and, therefore, the High         G
 Court had erred in placing reliance on his evidence. Elaborating
 this argument, it was submitted that the statement of Naseem
 Ahmad under Section 161 was recorded on February 9, 1998
 after the arrest of the appellant and Mumtaz was effected and
 he does not say that he had seen the accused carrying dead            H
    1046    SUPREME COURT REPORTS                 (2010) 1 S.C.R.


A body or dropping any object in front of the house of Haji
   Khursheed. It was pointed out that he is a close relative of the
  complainant who asserted that before the report of recovery of
  dead body was lodged by Shamim, he had told Nayeem and
  Shamim that he had seen the appellant and Mumtaz running
s away from near the place where the dead body was found lying
  but no such fact was stated in the report made by witness
  Shamim Ahmad and, therefore, his claim that he had seen the
  appellant fleeing from near the place where the dead body was
  found lying should have been disbelieved. What was stressed
c was that according to the said witness, he and Jakir were going
  to jungle for answering the call of nature and seen the appellant
  entering into the house of his sister but for the same reason,
  the appellant could have been out of his sister's house and,
  therefore, the appellant entering into the house of his sister
0 could not have been treated as an incriminating circumstance.
  What was claimed was that neither this circumstance sought
  to be relied upon by the prosecution stands proved beyond
  doubt by witness Naseem Ahmad nor the same can be
  characterised as an incriminating circumstance and, therefore,
E the same should be ignored while appreciating the evidence
  against the appellant.

       9. So far as the circumstance, namely, that the appellant
  and Mumtaz were seen fleeing away from near the place where
  the dead body of the deceased was lying is concerned, this
F Court finds that the prosecution has relied upon the testimony
  of PW2, Naseem Ahmad. After mentioning that younger
  daughter of his brother Nayeem had disappeared on February
  5, 1998, the witness has mentioned that in the morning of
  February 8, 1998 at about 4.30 a.m. he himself and one Jakir
G were going towards jungle and when they reached near the
  house of Haji Khursheed, they had seen the appellant and
  Mumtaz running from near the house of Haji Khursheed and
  entering into the house of Kabir. It may be stated that Kabir is
  brother-in-law of the appellant, i.e., husband of Ms. Bilkis who
H
         AFTAB AHMAD ANSARI v. STATE OF                      1047
          UTIARANCHAL [J.M. PANCHAL, J.]

is sister of the appellant. The witness has claimed in his            A
evidence that he was knowing Aftab, i.e., the appellant and
Mumtaz before the incident. According to this witness, when
they came back from the jungle at that time, they learnt that on
the same day, dead body of daughter of Nayeem Ahmad was
found near the house of Haji Khursheed.                               B

      This witness was subjected to searching cross-
 examination by the defence. In his cross examination, the
 witness stated that his house was located after two houses from
 the house of Haji Khursheed. According to him Jakir who is his
 brother-in-law had come to his house from village Mudia Kalan.       C
 During this cross-examination, the witness also explained that
 Jakir was real brother-in-l~w of Nayeem and, thus, deceased
 was niece of Jakir. What was maintained by the said witness
 was that both of them had proceeded to jungle at about 4.30
 a.m. for answering the call of nature and had seen the appellant     D
 and Mumtaz while they.were going to jungle. According to this
 witness, the Investigating Officer had recorded his statement
 on the next day of recovery of the dead body. It was further
 stated by this witness in his cross-examination that the
 deceased was missing since February 5, 1998 whereas her              E
 dead body was found on February 8, 1998. The witness has
further mentioned that by the time they had come back from the
jungle, the dead body had already been found and one missing
 report was written on February 6, 1998 which was scribed and
 lodged by Shamim after the dead body was found. It was stated        F
by him that he was not present at the time of writing of the report
by Shamim but before the report was written, Shamim and
 Nayeem were told by him and Jakir that they had seen the
appellant and Mumtaz running away from near the place where
the dead body was lying. T~e witness further mentioned in his         G
cross-examination that the report was scribed after arrival of
sniffer dog called by the police. It was explained by the witness
that sniffer dog had been brought at 7.30 a.m. The suggestion
 made by the defence that he had not seen anyone running
 away from near the place where the dead body was lying and           H
    1048     SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A was deposing falsely on account of relationship with Nayeem
  was emphatically denied by him.

        10. A fair reading of the evidence tendered by this witness
  makes it evident that though he is relative of Nayeem, he has
  stated the facts seen by him in a simple manner and without
8
  any noticeable embellishments. If this witness wanted to
  implicate the appellant falsely in the case because of his
  relationship with the first informant, nothing prevented him from
  stating before the police and the court that he had seen the
  appellant carrying the dead body of the deceased and throwing
C the same near the house of Haji Khursheed.

          11. However, this Court finds that he has not made any
     false claim/exaggeration in his testimony at all and stated that
     he had seen the appellant fleeing from near the place where
D   the dead body was lying. The reason as to why in the early
     morning he was out of his house is stated by him, which this
    Court finds to be most natural. It could not be even remotely
    suggested by the defence that a constructed latrine was
    available in the house of witness Naseem Ahmad and,
E   therefore, it was not necessary for him to move out of his house
    in the early morning of February 8, 1998 to go to jungle for
    answering call of nature. What is relevant to notice is that at
    the time when this witness had seen the appellant running away
    from near the place where the dead body was found, he had
F   not learnt that the dead body was already found. Further, his
    house is located after two houses from the house of Haji
    Khursheed and the house of Ms. Bilkis, who is sister of the
    appellant and with whom the appellant was residing at the
    relevant point of time, is quite near to the house of Haji
    Khursheed. Therefore, the claim made by the witness that he
G   had seen the appellant hurriedly entering the house of his sister
    sounds probable. No major contradiction and/or omission with
    regard to his earlier statement recorded before the police nor
    any other material could be brought on record by the defence
    to impeach his credibility. Merely because Shamim did not
H
           AFTAB AHMAD ANSARI v. STATE OF                      1049
            UTTARANCHAL [J.M. PANCHAL, J.]

   refer to the fact that he was told by Naseem Ahmad that              A
   Naseem Ahmad had seen the appellant running away from near
   the place where the dead body was lying in his report to the
   police, cannot be a ground to disbelieve this witness. The
   learned Judge o'f the Trial Court who had advantage of
   observing demeanour of this witness has found the witness to         B
   be truthful. The assertion made by the witness that the appellant
   and Mumtaz were known to him could not be disputed by the
   defence at all. It was claimed by this witness in terms before
   the Court that he had seen the appellant running away from near
   the place where the dead body was lying. When it was stated          c
   by PW-3 Naseem Ahmad that he had seen the appellant
   running away from near the place where the dead body was
   lying, it was for the defence to suggest that in the early morning
   of February 8, 1998, no source of light was available and,
   therefore, he could not have seen the appellant so running away.
                                                                        0
   However, this Court finds that even remotely it was not
   suggested to the witness that there was no source of light and,
   therefore, he could not have seen the appellant running away
   from near the place where the dead body was lying. The plea
   that this witness maintained silence at the time when the inquest    E
  on the dead body of the deceased was held and did not tell
  the Investigating Officer that he had seen the appellant running
  away from near the place where the dead body was lying would
  indicate that he had not seen the appellant running away, is
  merely stated to be rejected. The occasion for this witness to
· tell the Investigating Officer that he had seen the appellant         F
  running away from near the place where the dead body was
  lying would arise only when the Investigating Officer was to
  record his statement under Section 161. The basic purpose of
  holding inquest on the dead body is to ascertain prima facie
  the nature of death and to find out whether there are injuries        G
  on the dead body or not. The inquest punchnama cannot be
  treated as statement of the witness recorded under Section 161
  of the Code of Criminal Procedure wherein he is supposed to
  narrate the facts seen by him. Therefore, it is not true to say
  that he had maintained silence and had not told the                   H
    1050    SUPREME COURT REPORTS               . [2010) 1 S.C.R.


A Investigating Officer at the time of holding of the inquest that
  he had seen the appellant running away from near the place
  where the dead body was lying. The so called silence on the
  part of this witness cannot be considered to be unnatural at all
  nor the same makes this testimony doubtful in any manner. It
B is true that the appellant who was staying in the house of his
  sister cannot be said to have committed any unnatural conduct
  by entering into the house of his sister. However, it is not the
  case of witness Naseem Ahmad that he had seen the appellant
  calmly entering into the house of his sister. What is mentioned
c by the witness is that he had seen the appellant running away
  from near the place where the dead body was found and
  hurriedly entering house of his sister. The 'running away' part
  attributed to the appellant could not be explained by him. In his
  further statement, it could not be explained by the appellant as
  to what made him running away from near the place where the
0
  dead body was found and hurriedly entering into the house of
  his sister. On reappraisal of the evidence of this witness, this
  Court finds that neither the Trial Court nor the High Court
  committed any error in placing reliance on the testimony of this
  witness for coming to the conclusion that one of the
E incriminating circumstances, namely, that the appellant was
  found fleeing from near the place where the dead body was
  found lying was satisfactorily proved.

       12. Another circumstance sought to be relied upon by the
F prosecution is that the appellant had made voluntary disclosure
  statement pursuant to which blood stained clothes of the
  deceased were discovered. The disclosure statement was
  made by the appellant in presence of PW4, Rais Ahmad. To
  prove the recovery of clothes of the deceased, the prosecution
G has relied upon the testimony of two witnesses, namely, PW4,
  Rais Ahmad and PW?, Praveen Kumar Tyagi, the Investigating
  Officer. PW4, Rais Ahmad has stated that on February 8, 1998
  Police had come to village Bajpur at about 3.30 p.m. and they
  had brought with them the appellant and Mumtaz. According,ito
H this witness, he and Lakhvinder Singh were standing at the
         AFTAB AHMAD ANSARI v. STATE OF                      1051
          UTTARANCHAL [J.M. PANCHAL, J.]
 place where the appellant w11s brought by the police. It is          fl
mentioned by the witness that police had called him and
 Lakhvinder Singh and asked them to accompany them. What
 is stated by the witness is that the appellant and Mumtaz led
them to the house of Kabir and the appellant took out one
sleeveless frock, one underwear and one green coloured bed            B
sheet from the foodgrains room of the house of Kabir. The
witness further stated that the abovementioned articles were
 kept hidden under the leaves arid after taking out those articles,
the appellant had told that these were the clothes of Yasmeen
 which he had concealed. It was further stated by the witness         c
that seizure memo was prepared by the Investigating Officer
 on the spot and his signature was obtained thereon after it was
 read over to him. The witness identified his signature on the
memo (Exhibit Ka.3). In his cross-examination, the witness
stated that Shamim who is his elder brother was brother-in-law        0
of the complainant. According to this witness, the appellant
 used to live in the house of his sister. What was mentioned by
the witness was that Shabnam, daughter of sister of the
appellant, was of the age group of Yasmeen and he was not
 remembering correctly whether Kabir, i.e., brother-in-law of the     E
appellant was living with his family in the house from which the
appellant had taken out the clothes of the deceased. It was
mentioned by the witness that the sniffer dog had first smelt the
dead body and then the said dog had entered into house of
Kabir and picked up the appellant. It was further stated by the
witness that the dog did not pick up Mumtaz and after. the            F
smelling by sniffer dog, the police.had arrested the appellant
and Mumtaz in his presence. What is testified by the witness
is that many persons had gone up to the police station and he
had also gone to the police station where his signatures were
obtained on Exhibit Ka.3 at about 4.00 p.m. The suggestion            G
made to the witness by the defence that no clothes were
recovered in his presence and that he was deposing falsely
was emphatically denied by him.

                                                                      H
    1052    SUPREME COURT REPORTS                 [2010] 1 S.C.R.


A         13. The testimony of Investigating Officer makes it more
    than clear that after arrest, the appellant had made disclosure
    statement and willingness to show the place where the clothes
    of the deceased were concealed by him. This. fact is also
    mentioned . in Exhibit Ka.3 which was prepared
B   contemporaneously. According to the Investigating Officer, he
    had made efforts to summon local witnesses from Akari Pistor
    but none had agreed to be a witness and, therefore, Rais
    Ahmad and Lakhvinder Singh were summoned to be panch
    witnesses on way to the place to be pointed out by the appellant
c   where he had concealed the clothes of the deceased.
    According to this witness, the appellant and Mumtaz led the
    police party and the appellant took out clothes of the deceased,
    i.e., blood stained frock and underwear as well as one bed
    sheet from Kuria meant for storing foodgrains. The witness
    further stated that clothes of the deceased and bed sheets were
0
    kept in the western corner of the room. The witness also
    informed the Court that underwears of both the accused were
    seized and they appeared to be stained with semen at some
    places. The argument that witness Rais Ahmad has not stated
E   about the disclosure statement at all and, therefore, discovery
    of the clothes of the deceased should be disbelieved cannot
    be accepted. As explained by the Investigating Officer, the
    appellant and Mumtaz had made disclosure statement when
    they were at the police station. The said fact is mentioned in
    the document prepared contemporaneously. As explained by
F   the Investigating Officer, he had made efforts to summon two
    independent witnesses to act as panchas but none had shown
    willingness to do so and, therefore, he had requisitioned
    services of Rais Ahmad and another on way to the house of
    sister of the appellant from where the clothes of the deceased
G   were recovered. The contention that that part of the disclosure
    statement showing that recovered frock and underwear were
    of the deceased and the bed sheet was one over which rape
    was committed cannot be read in evidence has no substance.
    In the leading case of Pulukuri Kottaya & Ors. Vs. Emperor
H
        AFTAB AHMAD ANSARI v. STATE OF                     1053
         UTTARANCHAL [J.M. PANCHAL, J.]

AIR 1947 PC 67 what would be admissible in a disclosure           A
statement has been explained by the Privy Council giving
illustration as under :

    "The statements to which exception is taken in this case
    are first a statement by accused No.6 which he made to        8
    the police sub-Inspector and which was reduced into
    writing, and is Exhibit "P." It is in these terms :

          'The mediatornama written at 9 a.m. on 12.1.1945,
          in front of Maddineni Verrayya's choultry and in the
          presence of the undersigned mediators.                  C

          Statement made by the accused lnala Sydayya on
          being arrested. About 14 days ago, I Kotayya and
          people of my party lay in wait for Sivayya and others
          at about sunset time at the corner of Pulipad tank.     o
          We, all beat Beddupati China Sivayya and
          Subayya, to death. The remaining persons,
          Pullayya, Kotayya and Narayana ran away.
          Dondapati Ramayya who was in our party received
          blows on his hands. He had a spear in his hands.        E
          He gave it to me then. I hid it and my stick in the
          rick of Venkatanarasu in the village. I will show if
          you come. We did all this at the instigation of
          Pulukuri Kotayya.'

                             (Signed) Potla China mattayya.       F

                                        ( " ) Kotta Krishnayya.

    12th January, 1945.         (Sgd.) G. Bapaiah,

                                Sub-Inspector of Police.          G

          The whole of that statement except the passage "I
   hid it (a spear) and my stick in the rick of Venkatanarasu
   in the village. I will show if you come" is inadmissible. In
                                                                  H
    1054     SUPREME COURT REPORTS                    [2010] 1 S.C.R.


A        the evidence of the witness Potla China Mattayya proving
         the document the statement that accused 6 said "I
         Mattayya and others went to the corner of the tank-land.
         We killed Sivayya and Subayya" must be omitted.

B              A confession of accused 3 was deposed to by the
        _police Sub-Inspector, who said that accused 3 said to him:

                'I stabbed Sivayya with a spear, I hid the spear in
                a yard in my village. I will show you the place."

c        The first sentence must be omitted. This was followed by
         a Mediatornama, Ex.Q.I, which is unobjectionable except
         for a sentence in the middle,

                'He said that it was with that spear that he had
                stabbed Boddapati Sivayya,'
D
         which must be omitted."

       Thus, the part of the disclosure statement, namely, that he
  was ready to show the place where he had concealed the
E clothes of the deceased is clearly admissible under Section 27
  of the Evidence Act because the same relates distinctly to the
  discovery of the clothes of the deceased from that very place.

       The contention that even if it is assumed for the sake of
  argument that the clothes of the deceased were recovered from
F the house of the sister of the appellant pursuant to the voluntary
  disclosure statement made by the appellant, the prosecution
  has failed to prove that the clothes so recovered belonged to
  the deceased and, therefore, the recovery of the clothes should
  not be treated as an incriminating circumstances is devoid of
G merits. First of all, what is relevant to notice is that in the missing
  report, it was mentioned by Nayeem Ahmad that his daughter
  aged five years, who was wearing frock and underwear, was
  missing from near the house while playing.; Thus, the wearing
  of the frock and underwear was mentioned by the father of the
H
         AFTAB AHMAD ANSARI v. STATE OF                       1055
          UTIARANCHAL [J.M. PANCHAL, J.]
 girl at the first available opportunity. The statement by Nayeem,     A
  PW1, as well as statement made by Shamim, PW2, that there
 were no clothes on the dead body of the deceased has gone
  unchallenged. Naturally, therefore, it was necessary for the
  Investigating Officer to find out as to where the clothes put on
 by the deceased were concealed. What is relevant to notice is         B
 that Ms. Bilkis who is sister of the appellant and who is
 examined as DW1 mentioned in her testimony before the Court
 that the police had taken into custody the clothes belonging to
  her daughter Shabnam. However, the record of the case shows
  that the frock and the underwear recovered from the house of         c
  Ms. Bilkis pursuant to disclosure statement made by the
  appellant were blood stained. It was never the case of Ms .
. Bilkis that the frock and underwear recovered or seized by the
  police were blood stained and belonged to her daughter
  Shabnam. Further, the clothes were recovered pursuant to the         0
  voluntary disclosure statement made by the appellant on
  February 9, 1998 whereas Ms. Bilkis made claim that the
  clothes, which belonged to her daughter, were recovered and
  seized on September 30, 2003 when she was examined by the
  appellant as one of the defence witnesses. If the police had
  seized the clothes belonging to her daughter, Ms. Bilkis would       E
  not have maintained tacit silence for roughly about more than
  five years and would have made grievance before higher police
  officers or court within reasonable time. A bare reading of her
  testimony makes it more than clear that she had come to
 depose before the Court to save the appellant who is her real         F
 brother and stated wrong facts for the first time before the Court.
  Her case that the police personnel had given 2 to 4 blows of
 stick to her and threatened her that she and her husband would
 be implicated in the case, does not inspire confidence of this
 Court. Further, Exhibit Ka.3 which is seizure memo of the             G
 clothes of the deceased recovered from the house of Ms. Bilkis
 pursuant to the disclosure statement made by the appellant,
  mentions that the frock recovered was made of terry-cotton
  fabric and its upper portion was white whereas lower portion
  was brown coloured and there were prints of flowers. The             H
     1056     SUPREME COURT REPORTS                   [2010) 1 S.C.R.


· A panchnama further indicates that it was sleeveless and stained
    with blood marks. Similarly, underwear discovered was made
    of cotton. It was white in colour with black stripes having blood
    stains. Though Bilkis who was examined as DW1 claimed that
    the clothes recovered from her house belonged to her daughter
  8 Shabanam, sne could not give description of either frock or the
    underwear seized during the course of her testimony before the
    court. On overall view of the matter, this Court finds that it was
    satisfactorily proved by the prosecution that the frock and
    underwear, recovered from the house of DW1 Ms. Bilkis
 c  pursuant to the voluntary disclosure statement made by the
    appellant, belonged to the deceased.

           14. Yet another circumstance relied upon by the
      prosecution is that the underwear of the appellant was stained
      with blood and semen. The fact that underwear put on by the
D    appellant was seized under a panchnama is not disputed on
      behalf of the appellant at all. The High Court ignored this
      circumstance stating that the appellant was young and,
      therefore, find of semen stains was natural. However, the High
      Court ignored the material fact that in normal course, the
E    underwear would not have blood stains at all and, therefore, it
     was for the appellant to offer explanation as to under what
     circumstances stains of blood were found on his underwear,
     seized by the police during the course of investigation. The fact
     that the underwear of the appellant seized by the police had
F    human blood stains is sufficiently proved by the contents of
     report of Chemical Analyst. The fact that the blood stained
     underwear put on by the appellant was seized after four days
     does not make any dent in the prosecution case on the ground
     that a person would not move with such blood stained underwear
G    for 3 - 4 days. One cannot lose sight of the fact that those stains
     were not visible and even the Investigating Officer had stated
     that on examination the underwear put on by the appellant
     appeared to be stained with semen at some places. If blood
     stains are found on the shirt or pant of a person then normally
H    such person would not move in the village with those clothes
        AFTAB AHMAD ANSARI v. STATE OF                     1057
         UTTARANCHAL [J.M. PANCHAL, J.]

on, because stains of blood would be visible and noticed by A
anyone. However, it is almost difficult for anyone to notice stains
of blood on underwear worn by a person. Further, the sense of
cleanliness of a rustic villager cannot be ignored by the Court.
While recording the statement of the appellant under Section .
313 of the Code, it was put to him by the learned Judge that B
during the course of investigation his blood stained underwear
was seized by the Police and his explanation was sought. In
answer to the said question, it was never claimed by the
appellant that the underwear seized was not blood stained and
that another underwear was substituted in place of his             c
underwear which was seized. Thus, this Court finds that the High
Court was not justified at all in ignoring the circumstance sought
to be relied upon by the prosecution that blood stained
underwear of the appellant was recovered during the course
of investigation.                                                   D

      15. Another circumstance sought to be relied upon by the
 prosecution is that the appellant made extra judicial confession
 before PW5, Anand Swaroop. The evidence of this witness
 shows that he was one of the panchas when inquest on the
 dead body of the deceased was held. During the course of his E
 testimony, the witness identified his signature on the inquest
 report which was produced by the prosecution at Exhibit Ka.4.
According to this witness, on February 23, 1998, he had been
to Kasipur Court in connection with some work. What is
asserted by the witness is that the appellant who is brother-in- F
law of Kabir had come to Court premises and told him near
the shops that he and Mumtaz had killed Yasmeen after
committing rape on her. The witness further asserted that the
reason for making extra judicial confession by the appellant was
that he was ex-pradhan of the village and the appellant was G
under an impression that the witness would be able to help him
by approaching the police. This witness in no uncertain terms
asserted before the court that he had told the Investigating ·
Officer about the extra judicial confession made by the
appellant.                                                        H
    1058    SUPREME COURT REPORTS                 [2010) 1 S.C.R.

A       In his cross-examination, the Witness stated that police had
   recorded his statement only once. According to the witness,
  police had recorded his statement sometime between 23 to
  29th February, 1998 in the village. What is mentioned by the
  witness in his cross-examination Is that the appellant had come
B after February 23, 1998 and, therefore, he had not thought it
   necessary to tell the police about the extra judicial confession
   made by the appellant. The suggestion made by the defence
  that the police used !o visit house of this witness daily or that
  the witness used to go to the police station daily, is denied by
c the witness. The manner in which this suggestion is made to
  the witness indicates that the appellant was entertaining a
   notion that the witness would be in a position to help him
  because the witness that the witness was going to the Police
  Station daily and policemen were also visiting him. In the cross-
D examination also, the witness maintained that the appellant had
  met him on February 23, 1998 in the court premises and neither
  the appellant nor Mumtaz was in the lockup nor Inside the court
  room and that the appellant had made the confession near the
  shops. The witness explained to the court as to why he had gone
  to the court and according to him he had gone to the court
E premises to meet one Ashish Shanna, legal adviser of the bank
  for getting his brother's NOC prepared. The witness further
  mentioned before the Court that the appellant and Mumtaz had
  met him between 11.30 and 12 noon. The suggestion made
  by the defence that it was wrong to say that the appellant had
F made any confessional statement was emphatically denied by
  him. It may be mentioned that this witness in the cross-
  examination had stated that the appellant was not on talking
  or visiting terms with him before February 23, 1998 and,
  therefore, it was argued that there was no reason for the
G appellant to confide in this witness. However, what is relevant
  to notice is that the witness was ex-pradhan of Bajpur village.
  Ex-Pradhan certainly enjoys a status in a small village. The
  case of the defence was that the appellant was knowing that
  the witness was close to the police and was going to the Police
H Station daily. Under the circumstances, thinking that the witness
           AFTAB AHMAD ANSARI v. STATE OF                      1059
            UTIARANCHAL (J.M. PANCHAL, J.]

    would be-able to render some help to him, the appellant had A
    made extra judicial confession. The Court, on re-appreciation
    of evidence, finds that it is not brought on the record of the case
    that this witness was on inimical terms with the appellant. In fact,
    this witness does not belong to the community of the appellant
    and belongs to another community. There was no earthly reason B
    for this witness to come to the court and depose falsely about
    the extra judicial confession made by the appellant. Though
    extra judicial confession is considered to be a weak piece of
    evidence by the courts, this Court finds that there is neither any
    rule of law nor of prudence that the evidence furnishing extra c
   judicial confession cannot be relied upon unless corroborated
   by some other credible evidence. The evidence relating to
   extra judicial confession can be acted upon if the evidence
   about extra judicial confession comes from the mouth of a
   witness who appears to be unbiased and in respect of whom
                                                                         0
   even remotely nothing is brought out which may tend to indicate
   that he may have a motive for attributing an untruthful statement
                           I
   to the accused. In State of U.P. vs. M.K. Anthony AIR 1985
   SC 48, this Court, while explaining the law relating to extra
  judicial confession, ruled that if the word spoken by the witness
   are clear, unambiguous and unmistakable one showing that the E
   accused is the perpetrator of the crime and nothing is omitted
  by the witness which may militate against it, then after
  subjecting the evidence of the witness to a rigorous test on the
  touchstone of credibility, the extra judicial confession can be
  accepted and can be the basis of a conviction. According to F
  this Court, in such a situation, to go in search of corroboration
  itself tends to cause a shadow of doubt over the evidence and
  if the evidence of extra judicial confession is reliable, trustworthy
  and beyond reproaching, the same can be relied upon and a
  conviction can be founded thereon. Here, in this case, it is G
  proved by the prosecution that PW5, Anand Swaroop was not
  on inimical terms with the appellant at all. After subjecting his
. evidence to a rigorous test on the touchstone of credibility, this
  Court finds that extra judicial confession referred to by the
  witness is reliable and is rightly accepted by the Trial Court and H.
    1060         SUPREME COURT REPORTS               [2010] 1 S.C.R.

A the High Court. The contention that when the appellant was
  being brought to the court, he was in custody and, therefore,
  the extra judicial confession referred to by PW5 would be hit
  by the provisions of Section 26 of the Evidence Act and could
  not have been received in evidence, cannot be accepted. As
B observed earlier, the record shows that the appellant and
  another were produced before the Court for extension of
  judicial remand. The appellant could not probablise his defence
  that he was in custody of police officer. He could not name the
  police officer who had brought him with Mumtaz to the Court
c premises for extension of judicial remand nor it is his case that
  to the hearing of the police officer who brought him to the court
  premises, he had made confessional statement before PW5.
  On the facts and in the circumstances of the case, This Court
  is of the opinion that it is not probablised by the defence that
  the appellant was in custody of police officer while he had made
0
  extra judicial confession before PW5. The evidence relating to
  extra judicial confession inspires confidence of this Court. On·
  this point, there is concurrent finding by the courts below and
  no case is made out by the appellant to interfere with the said
  finding in the present appeal.
E
        16. The net result of the above discussion is that the
  prosecution has proved satisfactorily and beyond shadow of
  doubt following facts:

F          (1)     The deceased went missing in the evening of
                   February 5, 1998 when she was playing near her
                   house.

           (2)     Her naked dead body was found at about 6 a.m.
                   on February 8, 1998 lying on public way in front of
G                  house of Haji Khursheed.

           (3)     She was subjected to rape and died a homicidal
                   death.

           (4)     The appellant was seen fleeing away from near the
H
            AFTAB AHMAD ANSARI v. STATE OF                  1061
             UTIARANCHAL [J.M. PANCHAL, J.]

              place where the dead body of the deceased was          A
              lying at about 4.30 a.m. on February 8, 1998.

      (5)     Blood stained frock and blood stained underwear
              of the deceased concealed in the house of sister
              of the appellant, were recovered pursuant to           8
              voluntary disclosure statement made by the
              appellant while in police custody.

      (6)     Underwear of the appellant seized during the
              course of investigation was found to be stained with
              blood and semen.                                       C

      (7)     The appellant made extra judicial confession before
              PWS, Anand Swaroop.

      17. The cumulative effect of the abovementioned facts
                                                                     0
taken together is conclusive in establishing the guilt of the
appellant. The chain of circumstantial evidence is complete and
does not leave any reasonable ground for conclusion consistent
with the innocence of the appellant. The chain of circumstances
is such as to show that within all human probability the rape and
murder of the deceased were committed by the appellant and           E
none else and he had also caused disappearance of evidence
of those offences. This Court further notices that this Court in
 Vasa Chandrasekhar Rao vs. Ponna Satyanarayana & Anr.
[(2000) 6 SCC 286] and Geetha vs. State of Kamataka [(2000)
10 sec 72] while explaining the law relating to circumstantial       F
evidence has ruled that where circumstances proved are put
to the accused through his examination under Section 313.of
the Code and the accused merely denies the same, then such
denial would be an additional link in the chain of circumstances
to bring home the charge against the accused. As indicated           G
earlier, it is proved by cogent and reliable evidence that the
appellant had committed rape on the deceased and thereafter
murdered her. Here in this case, the incriminating
circumstances proved were put to the appellant while recording
his statement under Section 313 of the Code of Criminal              H
                                                               ,
   1062     SUPREME COURT REPORTS               [2010) 1 S.C.R.


A Procedure. In his further statement, recorded under Section
  313, the appellant has merely denied the same. Therefore, such
  denial on the part of fhe appellant and failure to explain the
  circumstances proved will have to be treated as an additional
  link in the chain of circumstances to bring home the charge
B against the appellant. The circumstances proved establish the
  guilt of the appellant beyond reasonable doubt.

       18. Thus, this Court does not find any substance in the
  appeal and the same is liable to be dismissed. Accordingly,
C the appeal fails and is dismissed.

   B.B.B.                                    Appeal dismissed.