DEVI LALversusSTATE OF RAJASTHAN

168                      [2019]REPORTS
               SUPREME COURT    1 S.C.R. 168                [2019] 1 S.C.R.


A                                  DEVI LAL
                                        v.
                           STATE OF RAJASTHAN
                        (Criminal Appeal No. 148 of 2010)
B                          JANUARY 08, 2019
              [RANJAN GOGOI, CJI, K.M. JOSEPH AND
                          AJAY RASTOGI, JJ.]
            Penal Code, 1860:
            s. 302 and s.120B – Murder alleged against four accused –
C
      Prosecution – Circumstantial evidence – Trial court convicted the
      two appellants-accused relying on evidence of three witnesses and
      on extra-judicial confession made by one of the appellant-accused
      – Other two accused were acquitted – High Court confirmed the
      order of trial court – On appeal, held: Extra-judicial confession is
D     not proved – The chain of circumstances is also not complete and
      coherent to permit conviction of appellants-accused on the basis
      thereof without any trace of doubt – Appellants-accused are entitled
      to benefit of doubt and hence entitled to be acquitted.
            Evidence:
E           Circumstantial evidence – Evidentiary value – Held: While
      scrutinising the circumstantial evidence, a court has to evaluate it
      to ensure that the chain of events is established clearly and
      completely to rule out any reasonable likelihood of innocence of
      the accused.
F           Extra-judicial confession
             Evidentiary value – Held: Extra-judicial confession though
      is used against its maker, but on the face of it, is a weak evidence –
      It is advisable for the court to look for a corroboration with the
      other evidence on record.
G
            Jurisprudence:
            Criminal jurisprudence – In the case of circumstantial
      evidence, if two views are possible (one pointing to the guilt and
      other to the innocence of the accused) the accused is entitled to
      have the benefit of one which is favourable to him.
H
                                        168
              DEVI LAL v. STATE OF RAJASTHAN                            169


      Allowing the appeals, the Court                                   A
      HELD: 1. The case of the prosecution is based on
circumstantial evidence. The circumstances which lead the trial
Judge to hold the appellants guilty under Section 302 and 120B
IPC and confirmed by the High Court is primarily based on the
evidence of complainant (PW-2), daughter of deceased (PW-5)             B
and wife of deceased (PW-10) and also relied upon the extra judicial
confession made by the co-accused ‘B’ to PW-3. [Para 6][173-A-
B]
       2. Neither in the initial complaint on which the missing
report was lodged nor at the stage after inquiry, when the FIR          C
came to be registered (Exh. P-73), the name of appellant-accused
‘D’ surfaced. Even in the statement of PW-5, while recording
statement under Section 164 CrPC, (Exh. D-5), no such reference
was made of any conspiracy having been hatched by accused ‘D’.
In the testimony of PW-5 and PW-10, it was deposed that accused
‘D’ came to the house on 5th February 1999 and wanted to purchase       D
the half portion of Bada from the deceased for a sum of Rs. 10,000/
-. ‘D’ threatened the deceased to sell his Bada which he refused.
[Para 7][173-B-D]
      3. As regards appellant-accused ‘B’, it was deposed by PW-
5 and PW-10 that he was known to their family as accused ‘B’            E
used to take money from the deceased and used to return the
same. Deceased lended Rs. 50,000/- to accused ‘B’, which had
been reduced into writing in the ledger book. When the deceased
went to take money from ‘B’, he refused to return the same and
started quarrelling. The deceased had informed this to PW-5             F
and PW-10. The money as demanded by the deceased led to
suspicion of the commission of crime. But both the witnesses
i.e. PW- 5 and PW-10, in their cross-examination, stated that they
did not know when accused ‘B’ had borrowed money from the
deceased. [Para 8][173-D-F]
                                                                        G
      4. It is true that an extra judicial confession is used against
its maker but as a matter of caution, advisable for the Court to
look for a corroboration with the other evidence on record. Extra
judicial confession is, on the face of it, a weak evidence and the
Court is reluctant, in the absence of a chain of cogent
                                                                        H
170            SUPREME COURT REPORTS                      [2019] 1 S.C.R.


A     circumstances, to rely on it, for the purpose of recording a
      conviction. In the instant case, there are no additional cogent
      circumstances on record to rely on it. At the same time PW-3,
      while recording his statement under Section 164 CrPC, has not
      made such statement of extra judicial confession(Exh. D-5) made
      by accused ‘B’. In addition, there are no other circumstances on
B
      record to support it. [Para 9][173-G-H; 174-A-B]
            Gopal Sah v. State of Bihar (2008) 17 SCC 128 – relied
            on.
             5.1 While scrutinising the circumstantial evidence, a Court
C     has to evaluate it to ensure that the chain of events is established
      clearly and completely to rule out any reasonable likelihood of
      innocence of the accused. The underlying principle is whether
      the chain is complete or not, indeed it would depend on the facts
      of each case emanating from the evidence and there cannot be a
      straight jacket formula which can be laid down for the purpose.
D     But the circumstances adduced when considered collectively, it
      must lead only to the conclusion that there cannot be a person
      other than the accused who alone is the perpetrator of the crime
      alleged and the circumstances must establish the conclusive
      nature consistent only with the hypothesis of the guilt of the
E     accused. In the case of circumstantial evidence, two views are
      possible on the case of record, one pointing to the guilt of the
      accused and the other his innocence. The accused is indeed
      entitled to have the benefit of one which is favourable to him.
      [Paras 15, 17][177-C-E, G-H]

F           Sharad Birdhichand Sarda v. State of Maharashtra
            (1984) 4 SCC 116 : [1985] 1 SCR 88; Sujit Biswas v.
            State of Assam (2013) 12 SCC 406 : [2013] 3 SCR 830;
            Raja alias Rajinder v. State of Haryana (2015) 11 SCC
            43 : [2015] 3 SCR 947 – relied on.

G           5.2 On an analysis of the overall fact situation in the instant
      case, and considering the chain of circumstantial evidence relied
      upon by the prosecution and noticed by the High Court in the
      impugned judgment, to prove the charge is visibly incomplete
      and incoherent to permit conviction of the appellants on the basis
      thereof without any trace of doubt. Though the materials on
H
               DEVI LAL v. STATE OF RAJASTHAN                                171


record hold some suspicion towards them, but the prosecution                 A
has failed to elevate its case from the realm of “may be true” to
the plane of “must be true” as is indispensably required in law
for conviction on a criminal charge. It is trite to state that in a
criminal trial, suspicion, howsoever grave, cannot substitute proof.
The appellants are thus entitled to the benefit of doubt. [Paras
                                                                             B
16, 18][177-E-G; 178-B]
                         Case Law Reference
        (2008) 17 SCC 128                 relied on        Para 9
      [1985] 1 SCR 88                     relied on        Para 14
                                                                             C
      [2013] 3    SCR 830                 relied on        Para 15
      [2015] 3 SCR 947                    relied on        Para 15
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
148 of 2010.
                                                                             D
      From the Judgment and Order dated 30.01.2009 of the High
Court of Rajasthan at Jodhpur in D.B. Criminal Appeal No. 852 of
2003.
                                  WITH
      Criminal Appeal No. 149 of 2010.                                       E
       Pallav Shishodia, Sr. Adv., Ms. Meera Bhatia (A.C.), H. D.
Thanvi, Sarad Kumar Singhania, Digvijoy Sodhi, Advs. for the appellant.
      Anish Roy, Milind Kumar, Advs. for the respondent.
      The Judgment of the Court was delivered by                             F
        RASTOGI, J. 1. Both the appellants, Babu Lal and Devi Lal are
aggrieved by the affirmation of their conviction under Section 302 and
other with the aid of Section 120 B of the Indian Penal Code and sentenced
to life imprisonment under the impugned Judgment dated 30th January,
2009, seek this Court’s intervention.
                                                                             G
       2. Brief facts of the case, as per prosecution, post-incident, are
that on 8th February 1999 at 7.15 p.m. complainant Vijay Singh (PW-2)
submitted a written report (Exhibit P-1) at Police Station, Nimbahera,
informing that he and his cousin brother Dharam Chand(deceased) were
living with their families in separate houses in village Binota. In the
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172            SUPREME COURT REPORTS                          [2019] 1 S.C.R.


A     evening of 7th February, 1999 at 6.00 p.m., daughter of the deceased
      Dharam Chand informed him on telephone that her father, who had
      gone to Bhagwanpura on Motor Cycle, had not returned. The
      complainant, along with other neighbours, went to search deceased
      Dharam Chand on 8th February, 1999 and at village Bhagwanpura, outside
      the godown of brother deceased Dharam Chand, found his motorcycle
B
      but his whereabouts were not made known. On his written complaint, a
      missing person report (Exh. P-75) was lodged. The Investigating Officer,
      in the course of enquiry, made from Shambhu Singh (PW-3), revealed
      that on 7th February, 1999, accused Babu Lal had hired his jeep. Babu
      Lal and his labourers Logar and Bagdiram carried drum which contained
C     wheat. The drum was alighted from the jeep on way near field of Logar,
      making Shambhu Singh to sit at the house of Logar and on excuse of
      responding to call of nature, Babu Lal, Logar and Bagdiram got away
      for about 1.30 hours. When they came back, the drum was not there.
      On inquiry by Shambhu Singh (PW-3), Babu Lal told that Logar and
      Bagdiram shall deliver it afterwards. On further inquiry, it revealed that
D
      on 5th February, 1999, hot altercations had taken place between Babu
      Lal and deceased Dharam Chand for some money transactions and on
      carrying such drum, Babu Lal caused some suspicion. During the course
      of search, it was found that from a dry well, bad odour was emitting.
      When freshly cut branches and leaves of the teak tree were removed,
E     the dead body of the deceased Dharam Chand was found. On the basis
      of Exhibit P-73, formal FIR came to be registered on 11th February,
      1999 at Police Station, Nimbahera.
             3. After the investigation, charge-sheet was filed against the four
      accused persons namely, Babu Lal, Devi Lal, Keshu Ram @ Panchiya
F     Meena and Logar Rawat. All the four faced trial. The learned trial
      Judge by its impugned judgment acquitted the accused persons Keshu
      Ram @ Panchiya Meena and Logar Rawat holding accused Babu Lal
      guilty for the offence under Section 302 read with Section 34 and 120-B
      IPC and appellant Devi Lal for the offence of Section 120-B IPC, of
      hatching a conspiracy to commit murder.
G
            4. The appeals preferred by both the appellants before the High
      Court came to be dismissed affirming their conviction and sentence vide
      judgment impugned dated 30th January, 2009.
              5. Before adverting to the rival submissions, it would be apposite
H     to first take analysis of the evidence on record.
                DEVI LAL v. STATE OF RAJASTHAN                                     173
                          [RASTOGI, J.]

      6. The case of the prosecution is based on circumstantial evidence.          A
The circumstances which lead the trial Judge to held the appellants guilty
under Section 302 and 120B IPC and confirmed by the High Court is
primarily based on the evidence of complainant Vijay Singh (PW-2),
Vandna (PW-5) and Uma Devi (PW-10), daughter and wife of the
deceased and also relied upon the extra judicial confession made by the
                                                                                   B
co-accused Babu Lal to Shambhu Singh (PW-3).
       7. At the outset, it may be noticed that neither in the initial complaint
on which the missing report was lodged nor at the stage after inquiry,
when the FIR came to be registered (Exh. P-73), the name of appellant
Devi Lal surfaced. Even in the statement of Vandna(PW-5), while
recording statement under Section 164 CrPC, (Exh. D-5), no such                    C
reference was made of any conspiracy having been hatched by Devi
Lal, the accused appellant. In the testimony of PW-5 Vandna and PW-
10 Uma Devi, it was deposed that accused Devi Lal came to the house
on 5th February 1999 and wanted to purchase the half portion of Bada
from the deceased Dharam Chand for a sum of Rs. 10,000/-. Devi Lal                 D
threatened the deceased to sell his Bada which he refused.
      8. As regards appellant Babu Lal, it was deposed by Vandna (PW-
5) and Uma Devi (PW-10) that he was known to their family as Babu
Lal used to take money from the deceased and to return the same.
Deceased Dharam Chand lended Rs. 50,000/- to accused Babu Lal,                     E
which had been reduced into writing in the ledger book. When deceased
Dharam Chand went to take money from Babu Lal, he refused to return
the same and started quarrelling. The deceased had informed this to
Vandna (PW-5) and Uma Devi (PW-10). The money as demanded by
the deceased led to suspicion of the commission of crime. But both the
witnesses Vandna (PW- 5) and Uma Devi (PW-10), in their cross-                     F
examination, stated that they did not know when the accused Babu Lal
had borrowed money from the deceased.
       9. It is true that an extra judicial confession is used against its
maker but as a matter of caution, advisable for the Court to look for a
corroboration with the other evidence on record. In Gopal Sah v. State             G
of Bihar 2008(17) SCC 128, this court while dealing with extra judicial
confession held that extra judicial confession is, on the face of it, a weak
evidence and the Court is reluctant, in the absence of a chain of cogent
circumstances, to rely on it, for the purpose of recording a conviction.
In the instant case, it may be noticed that there are no additional cogent         H
174            SUPREME COURT REPORTS                           [2019] 1 S.C.R.


A     circumstances on record to rely on it. At the same time, Shambhu Singh
      (PW-3), while recording his statement under Section 164 CrPC, has not
      made such statement of extra judicial confession(Exh. D-5) made by
      accused Babu Lal. In addition, there are no other circumstances on
      record to support it.
B            10. The other connecting evidence on which reliance was placed
      by the prosecution was that accused Babu Lal had given information of
      handing over the torn leaf of Bahi obtaining signatures of deceased
      Dharam Chand to accused Devi Lal. Accused Devi Lal got the said
      leaf recovered by giving information to the Investigating Officer. There
      is no justifiable explanation available which came on record as to how
C     the torn leaf came in the possession of Devi Lal as the said paper was
      torn from the Bahi(Article 27) which was recovered from the accused
      Babu Lal, which has been matched by FSL report. There was also no
      justification which came forward from the prosecution as to how the
      torn Bahi paper of Babu Lal containing the signatures of deceased
D     Dharam Chand with black ink came to him. Pen was recovered on the
      information of accused Babu Lal, by which handwriting found on the
      leaf recovered from accused Devi Lal. The further circumstance was
      recovery of Rs. 11,200/- on the information given by the accused Babu
      Lal but from where this money had come to Babu Lal, was not clarified
      by the prosecution. The other circumstances completing the chain was
E     that accused Devi Lal had not given any clarification with regard to the
      fact that by which information Devi Lal had come to Babu Lal which
      had been indicated in the diary recovered from accused Devi Lal under
      Section 27 of the Evidence Act. Accused Babu Lal was arrested on
      13th February, 1999 and accused Devi Lal was arrested on 15th February,
F     1999 for the alleged incident of 7th February, 1999 which came to
      knowledge of informant on 8th February, 1999 and report was lodged on
      11th February, 1999 and the alleged recovery of torn page of Bahi, which
      obtained signature of the deceased along with the diary of 1999(Exhibit
      P-79), under Section 27 of the Evidence Act was made on 24th February,
      1999. The Bahi, as such, was never produced. Apart from non-
G     production of Bahi, to prove the provonance of the torn piece of blank
      paper, the similarity of the ink on this torn piece of paper and ledger was
      extremely doubtful in view of the objection by the FSL and response
      lead to it which the Investigating Officer(PW-33) has also admitted in
      the cross examination.
H
               DEVI LAL v. STATE OF RAJASTHAN                               175
                         [RASTOGI, J.]

      11. What was relied upon by the High Court was that paper Article     A
7 recovered on disclosure of appellant accused Devi Lal(from “Darraj”
to Barsot”) was one which was torn away from Bahi recovered on
information at the instance of the appellant Babu Lal. Secondly, that
piece of paper had lower portion which had signatures of deceased
Dharam Chand and other than that, the paper was blank.
                                                                            B
       12. Summarily, the circumstances in totality apart from the extra
judicial confession which has been noticed by the High Court are referred
to as under:-
      “1. Appellant-Devilal wanted to purchase half portion of ‘Bara’
      from deceased for which he actively pursued.                          C
                         th
      2. On February 7 , in morning, around 9-10, deceased left for
      Bhagwanpura-not a very distant village.
      3. Around 10-10.20 AM, he telling of going to house of Babulal
      for receiving money-went towards and to house(‘Nohra’) of
      Babulal.                                                              D
      Going to house of Babulal-than never seen alive.
      4. Jeep of Shambhu hired by Babulal on February 6th for use in
      evening of 7th for going village Dhikiya.
      Then in evening of 7th around 8 p.m., Babulal and two other carried   E
      weighty drum which left at isolated site-body of deceased found
      in a dry well like pit-near the place drum was left.
      5. On information of Babulal, his own concealed clothes recovered
      from his house-also were blood stains on compound wall and soil
      of his ‘Nohra’. On clothes of Babulal and clothes of deceased         F
      blood ‘A’ group.
      Stains found on the floor of ‘Nohra’ of ‘A’ group.
      Stains on wall of ‘Nohra’ of human blood.
      6. On information of Babulal-that is from his possession, recovered   G
      a ‘Bahi’ – of the ‘Bahi’ a leaf about 7-8" X 6-7" was torn away.
      7. Babulal informed that above half torn leaf is with Babulal.
      8. On information and at the instance of Devilal, that is from his
      possession, found above half torn leaf of ‘Bahi’-recovered from
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176            SUPREME COURT REPORTS                          [2019] 1 S.C.R.


A           “Darraj”, that is a narrow space between frame of door and
            surrounding wall.
            9. On this torn away leaf at lower side, are signatures of Dharam
            Chand-otherwise blank is the paper.”
            13. Without going into detailed scrutiny of the facts on record
B     under consideration, the circumstances which emerged and taken note
      of under the impugned judgment in itself gives a suspicion in completing
      the chain of commission of crime beyond doubt, being committed by the
      accused appellants.
            14. The classic enunciation of law pertaining to circumstantial
C     evidence, its relevance and decisiveness, as a proof of charge of a
      criminal offence, is amongst others traceable decision of the Court in
      Sharad Birdhichand Sarda Vs. State of Maharashtra 1984(4) SCC
      116. The relevant excerpts from para 153 of the decision is assuredly
      apposite:-
D           “153. A close analysis of this decision would show that the
            following conditions must be fulfilled before a case against an
            accused can be said to be fully established:
            (1) the circumstances from which the conclusion of guilt is to be
            drawn should be fully established.
E
            It may be noted here that this Court indicated that the
            circumstances concerned “must or should” and not “may be”
            established. There is not only a grammatical but a legal distinction
            between “may be proved” and “must be or should be proved” as
            was held by this Court in Shivaji Sahabrao Bobade & Anr. Vs.
F           State of Maharashtra [(1973) 2 SCC 793 where the observations
            were made:
               “Certainly, it is a primary principle that the accused must be
               and not merely may be guilty before a court can convict and
               the mental distance between ‘may be’ and ‘must be’ is long
G              and divides vague conjectures from sure conclusions.”
            (2) the facts so established should be consistent only with the
            hypothesis of the guilt of the accused, that is to say, they should
            not be explainable on any other hypothesis except that the accused
            is guilty,
H
               DEVI LAL v. STATE OF RAJASTHAN                                   177
                         [RASTOGI, J.]

      (3) the circumstances should be of a conclusive nature and                A
      tendency,
      (4) they should exclude every possible hypothesis except the one
      to be proved, and
      (5) there must be a chain of evidence so complete as not to leave
      any reasonable ground for the conclusion consistent with the              B
      innocence of the accused and must show that in all human
      probability the act must have been done by the accused.”
       15. It has further been considered by this Court in Sujit Biswas
Vs. State of Assam 2013(12) SCC 406 and Raja alias Rajinder Vs.
State of Haryana 2015(11) SCC 43. It has been propounded that while             C
scrutinising the circumstantial evidence, a Court has to evaluate it to
ensure the chain of events is established clearly and completely to rule
out any reasonable likelihood of innocence of the accused. The underlying
principle is whether the chain is complete or not, indeed it would depend
on the facts of each case emanating from the evidence and there cannot          D
be a straight jacket formula which can be laid down for the purpose.
But the circumstances adduced when considered collectively, it must
lead only to the conclusion that there cannot be a person other than the
accused who alone is the perpetrator of the crime alleged and the
circumstances must establish the conclusive nature consistent only with
the hypothesis of the guilt of the accused.                                     E

        16. On an analysis of the overall fact situation in the instant case,
and considering the chain of circumstantial evidence relied upon by the
prosecution and noticed by the High Court in the impugned judgment, to
prove the charge is visibly incomplete and incoherent to permit conviction
of the appellants on the basis thereof without any trace of doubt. Though       F
the materials on record hold some suspicion towards them, but the
prosecution has failed to elevate its case from the realm of “may be
true” to the plane of “must be true” as is indispensably required in law
for conviction on a criminal charge. It is trite to state that in a criminal
trial, suspicion, howsoever grave, cannot substitute proof.                     G
      17. That apart, in the case of circumstantial evidence, two views
are possible on the case of record, one pointing to the guilt of the accused
and the other his innocence. The accused is indeed entitled to have the
benefit of one which is favourable to him. All the judicially laid
parameters, defining the quality and content of the circumstantial
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178             SUPREME COURT REPORTS                          [2019] 1 S.C.R.


A     evidence, bring home the guilt of the accused on a criminal charge, we
      find no difficulty to hold that the prosecution, in the case in hand, has
      failed to meet the same.
             18. In the given facts and circumstances, we are unable to sustain
      their conviction. The appellants are thus entitled to the benefit of doubt.
B     Both the appeals succeed and are accordingly allowed. Appellant Devi
      Lal is already on bail. His bail bonds are discharged. Appellant Babu
      Lal who is in custody is directed to be released forthwith, if not required
      in any other case.


C     Kalpana K. Tripathy                                         Appeals allowed.




D




E




F




G




H