Holding

The conviction is upheld as the circumstantial evidence meets all statutory requirements and the confessional statement is voluntary and admissible.

Summary

The appellants were convicted for the murder of a young man whose body was found half‑dug in a cemetery after the accused allegedly scaled the wall, consumed wine and later assaulted a worker. The prosecution relied on extensive circumstantial evidence, including eyewitnesses who last saw the accused with the deceased, forensic findings indicating death within a few days of the incident, and the recovery of articles from the accused. One accused, Md. Azad, gave a confession that was recorded by a Judicial Magistrate in compliance with Section 164(2) of the CrPC and was held to be voluntary. The defence challenged the sufficiency of the circumstantial evidence, the medical opinion on the time of death, and the admissibility of the confession. The Supreme Court applied the established tests for circumstantial evidence and found that the facts formed a complete, unbroken chain pointing exclusively to the guilt of the accused, and that the confession was properly recorded and voluntary. Consequently, the Court upheld the convictions under Sections 302, 201 and 34 of the IPC and dismissed the appeals.

Issues considered

The prosecution case rests solely on circumstantial evidence; does it satisfy the legal tests for conviction?
Is the confessional statement of Md. Azad, recorded under Section 164(2) CrPC, voluntary and admissible?
Do the medical findings on the time of death undermine the prosecution's version of events?

Legislation cited

Code of Criminal Procedure, 1973s. 164(2), s. 313
Indian Evidence Act, 1872s. 24
Indian Penal Code, 1860s. 201, s. 302, s. 34

Subjects

circumstantial evidenceconfessional statementSection 164 CrPCIPC Sections 302, 201, 34last seen theorymedical evidencemurder convictionvoluntary confession

Judgment

------..!.

[2008] 15 S.C.R. 468
I
\;-

A MOHD. AZAD @ SAMIN ......
r--
v. '
STATE OF WEST BENGAL
(Criminal Appeal No. 1729 of 2008 etc.)
NOVEMBER 5, 2008
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]
i.

Penal Code, 1860 - ss. 302 and 201 rlw s. 34 - Death -!
,
caused by two persons - Circumstantial evidence -
c Confession of one of the accused - Deceased last seen
together with the accused - Recovery of articles at the
instance of one of the accused - Conviction by courts below 1?Jll
- On appeal, held: Conviction justified - Prosecution case
proved - Confessional statement reliable as made in strict
D compliance of s. 164 (2) Cr.P.C. and was made voluntarily.
Evidence - Circumstantial evidence - Reliance on - r
Held: Conviction can be based on such evidence - Condition
precedent for reliance before conviction, discussed.
)
E Appellants-accused were charged for having caused
death of one person. According to prosecution, the !

appellants and the deceased purchased wine from a
shop nearby and thereafter they entered into the
cemetery after scaling the wall. The case was based on
' !--..
F circumstantial evidence ..Initially case was registered ~

I
against unknown persons on the basis of information I-
from the Secretary of the Christian Cemetery where the
dead body of the deceased was found by him and the -
gardener of the cemetery on the information of a boy. The
G accused persons were arrested after investigation by the
Detective Department. Some articles were recovered at
the instance of accused 'N'. Accused 'A' made
confessional statement. During trial 34 witnesses were -.I
examined who deposed having last seen the accused
H 468
-,,.
i,o.1
. \

,,..
MOHD. AZAD@ SAMIN v. STATE OF WEST BENGAL 469

\...
and the deceased together and presence of the accused A
at the scene of occurrence and about recovery from the
accused. Trial court convicted the accused u/s. 302 and
201 r/w. s. 34 IPC. High Court confirmed the conviction.
Hence the present appeals.
Dismissing the appeals, the Court B

HELD: 1.1. If the factual scenario is considered in the
background of principles relating to circumstantial
evidence and extra judicial confession, the appeals are
without merit. According to the prosecution version on
the night of 6.2.1994, the appellants and the deceased
c
purchased wine from a shop nearby and thereafter they
entered into the cemetery not from the usual gate but
after scaling the wall. The identification of the accused by
the workers af the cemetery has also been established
by cogent evidence. In the Test Identification Parade, D
1
I ~
some of the workers identified appellant 'N' as the man
who went to fetch water. Therefore, the prosecution
version in that regard is cogent. The salesman of the wine
shop (PW-18) spoke about appellant 'N'. PW-10 one of the
workers spoke about the demand by one of the accused E
persons for water. To the similar effect is the evidence of
PW-12 who spoke about the supply of drinking water.
The doctor categorically stated that the stomach
..l.
contained 10 gms of fluid with strong smell of alcohol.
[Paras 6, 7 and 23] [478-E-H; 479-A-C; 487-E, F] F
1.2. The doctor PW-29 in his opinion before the
Investigating Officer on 9.3.1996 affirmed his view that
death might have taken place 4/5 days prior to the post
mortem examination of the dead body. From the First
Information Report as well as the statement of Secretary G
of the cemetery who lodged the FIR it is clear that neither
);" he nor any of the staff of the cemetery had noticed the
dead body but only a child found a dead body and
informed one of the staff of the cemetery who in turn
informed the informant. It is on record that the child was H
470 SUPREME COURT REPORTS [2008] 15 S.C.R.

A in the cemetery for the purpose of flying kite and for
playing in the open field and that is how he was moving
hither and thither and noticed the dead body was lying
in a corner which was a long area. That being so, the plea
that the body could have been unnoticed by the
B appellants is unacceptable. [Para 5] [477-G, H; 478-A, B]
1.3. The date of occurrence was in the early part of
February and the dead body was discovered with full
wearing apparels including winter garments, shoes and
so.cks. The dead body was lying in half dug manner and
C a cement slab was placed on the face of the dead body.
According to the High Court, that being the situation, the
dead body was not exposed to sun and wind and the
chance of receiving dews throughout the whole night
and upto certain parts of the morning cannot be ruled out.
D Therefore, the view of the doctor about the date of death
being on or around 6.2.1994 is not rendered doubtful. r
[Para 5] [478-B-D] ~

1.4. Regarding recording of confessional statement
E Judicial Magistrate, has categorically stated that the
requirement of Section 164 (2) Cr.P.C. was strictly
followed. He has categorically stated that the
confessional statement was given voluntarily and it was
recorded after observing all statutory formalities. [Para 8]
F [479-C, D] ..,._
2.1. Where a case rests squarely on circumstantial
evidence, the inference of guilt can be justified only when
all the incriminating facts and circumstances are found
to be incompatible with the innocence of the accused or
G the guilt of any other person. There is no doubt that
conviction can be based solely on circumstantial
evidence but it should be tested by the touch-stone of
law relating to circumstantial eVidence. They are the -!{
circumstances from which the conclusion of guilt is to be
H drawn should be fully established. The circumstances
MOHD. AZAD @ SAMIN v. STATE OF WEST BENGAL 471

concerned 'must' or 'should' and not 'may be' established; the A
~
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; the circumstances
should be of a conclusive nature and tendency; they B
should exclude every possible hypothesis except the
one to be proved; andthere must be a chain of evidence
so complete as not to leave any reasonable ground for
-,~
the conclusion consistent with the innocence of the
accused and must show that in all human probability the c
act must have been done by the accused. [Paras 9, 14
and 16] [479-E; 481-F; 482-E-H; 483-A]

Hukam Singh v. State of Rajasthan AIR 1977 SC 1063;
Eradu and Ors. v. State of Hyderabad AIR 1956 SC 316;
Earabhadrappa v. State of Karnataka AIR 1983 SC 446; State D
, of UP. v. Sukhbasi and Ors. AIR 1985 SC 1224; Ba/winder
~ Singh v. State of Punjab AIR 1987 SC 350; Ashok Kumar
Chatterjee v. State of o/f.P. AIR 1989 SC 1890; Bhagat Ram
v. State of Punjab AIR 1954 SC 621; C. Chenga Reddy and
Ors. v. State of A.P. 1996 (10) SCC 193; Pada/a Veera Reddy E
v. State of A.P. and Ors. AIR 1990 SC 79; State of UP. v.
Ashok Kumar Srivastava (1992) Crl.LJ 1104; Hanumant
Govind Nargundkar and Anr. v. State of Madhya PradeshrAIR
1952 SC 343; Sharad Birdhichand Sarda v. State of
Maharashtra, AIR 1984 SC 1622; State of Rajasthan v. Raja F
Ram 2003 (8) SCC 180; State of Haryana v. Jagbir Singh and
Anr. 2003 (11) SCC 261 and Kusuma Ankama Rao v. State
of A.P. 2008 (10) SCR 89, relied on.

"Wills' Circumstantial Evidence" (Chapter VI) by Sir
G
Alfred Wills, referred to.

2.2. The last seen theory comes into play where the

" time-gap between the point of time when the accused and
the deceased were seen last alive and when the
deceased is found dead is so small that possibility of any H
472 SUPREME COURT REPORTS [2008] 15 S.C.R.

A person other than the accused being the author of the
"
-..J:
crime becomes impossible. [Para 18] [483-D]

State of U.P. v. Satish 2005 (3) SCC 114; Ramreddy
Rajeshkhanna Reddy v. State of A.P. (2006) 10 SCC 172;
B Jaswant Gir. State of Punjab (2005) 12 SCC 438; Kusuma
Ankama Rao v. State of A.P. 2008 (10) SCR 89 and Bodhraj
v. State of J & K 2002 (8) sec 45, relied on.
~ ,.
3. Confessions may be divided into two classes i.e.
;
judicial and extra-judicial. Judicial confessions are those f
c which are made before a Magistrate or a court in the
course of judicial proceedings. Extra-judicial confessions
are those which are made by the party elsewhere than
before a Magistrate or court. Extra-judicial confessions
are generally those that are made by a party to or before ·
D a private individual which includes even a judicial officer
in his private capacity. It also includes a Magistrate who r
is not especially empowered to record confessions
under Section 164 Cr.P.C. or a Magistrate so empowered
but receiving the confession at a stage when Section 164
E Cr.P.C. does not apply. [Para 21] [484-C-E]
R. v. Warickshal (1783) 1 Leach 263, referred to.

Woodroffe's Evidence, 9th Edn., p. 284, referred to.

F Case Law Reference: -->-

AIR 1977 SC 1063 Relied on. Para 9
AIR 1956 SC 316 Relied on. Para·9
AIR 1983 SC 446 Relied on. Para 9
G
AIR 1985 SC 1224 Relied on. Para 9
AIR 1987 SC 350 Relied on. Para 9 -;f '

AIR 1989 SC 1890 Relied on. Para 9
H
MOHD. AZAD @ SAMIN v. STATE OF WEST BENGAL 473

AIR 1954 SC 621 Relied on. Para 9 A

1996 (10) sec 193 Relied on. Para 10
AIR 1990 SC 79 Relied on. Para 11
1992 Crl.LJ 1104 Relied on. Para 12 B
AIR 1952 SC 343 Relied on. Para 15
AIR 1984 SC 1622 Relied on. Para 16
f
2003 (8) sec 180 Relied on. Para 17
c
2003 (11) sec 261 Relied on. Para 17
2008 (10) SCR 89 Relied on. Para 17
2oos (3) sec 114 Relied on Para 18
2006 (10) sec 112 Relied on. D
Para 19
2002 (8) sec 45
'"(
.. Relied on. Para 19
2oos(12) sec 438 Relied on. Para 20
(1783) 1 Leach 263 Referred to Para 21 E

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1729 of 2008.

From the Judgment and final Order dated 17.1.2006 of the
High Court of Calcutta at Calcutta in C.R.A. No. 223 of 1996. F

\A/ITH

Criminal Appeal No. 1730 of 2008.

S.K. Bhattacharya and Shankar Divate (A.C.) for the G
Appellant.

I
~ Altaf Ahmed, TRra Chandra Sharma and Neelam Sharma
for the Respondent.
H
474 . SUPREME COURT REPORTS [2008] 15 S.C.R.

A The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.

2. In these appeals challenge is to the· judgment of a
Division Bench of the Calcutta High Court dismissing the
B appeal filed by the appellants. Both the appellants were
convicted for offence punishable under Sections 302, 201 read
with Section 34 of the Indian Penal Code, 1860 (in short the
'IPC'). Three persons were'accused of the alleged offences. ~
One.of them, i.e. Md. Nayeen @ Raju did not face the trial.
C Learned Additional Sessions Judge, 1st Court, Alipore, in the
district of 24 Parganas (South) in Sessions Trial No.1 (1) of
1995 found the appellants.guilty, and convicteq and sentenced
them. ·

0 3. Prosecution version as unfolded during trial is as
follows:

One Tarence Stanley Arland son of late Joseph William
Arland serving as the Secretary of the Christian Cemetery
located at 184, Acharya Jagadish Chandra Bose Road,
E Calcutta-17 was working in his office at the said premises on
10.2.1994, At about 3 P.M. on that day one Lakshman Singh a
Gardner of the cemetery came to Mr. Arland in his office and
informed him that a boy aged about 10/12 had come to him
earlier and informed him that a dead body was lying on the
F south east corner of the said cemetery. On getting such
information from Lakshman Singh, Mr. Arland asked Lakshman
Singh to go and ascertain as to whether the information of the
boy was at all correct. Lakshman Singh left the office and after
sometime came back to Mr. Arland and reported that the dead
G body with a cut mark on the back was lying on its back in a
half dug position at the south eastern corner of the cemetery.
Having learnt this from Lakshman Singh, Mr. Arland and
Lakshman Singh went to the place at which the dead body was
lying and found that a person aged about 25/26 years, wearing
H a blue colored sweater and jeans pantaloon and having gaping
MOHD. AZAD@ SAMIN v. STATE OF WEST BENGAL 475
[DR. ARIJIT PASAYAT, J.]

.,,. wound on the neck was lying at the south east corner of the A
cemetery. Mr. Arland then called out to the man repeatedly so
as to ascertain as to whether the man had any life. But, he did
not get any response. Mr. Arland also noticed some quantity
of blood on the ground at a distance of about 10 feet to the
north of that person lying dead. He could not ascertain the B
identity of the dead body. Then Mr. Arland came back to his
office and informed the Beniapukar police station over phone

.
,l
of the matter being sure that the man was murdered by some
unknown persons and was left within the cemetery in a half
buried condition. On getting such information from Mr. Arland c
on phone Beniapukar Police came to the Christian Cemetery
within 10 to 15 minutes and Mr. Arland was examined by the
police. Mr. Arland gave a statement to the police regarding the
said incident and his statement was recorded by the police. Mr.
Arland then went through the statement and signed the same.
D
He then went to the spot alongwith two of his employees so as
"'( to help in the matter of lifting the dead body from the spot. Mr.
~ Arland then called one Sheo Sagar and another employee so
as to help the police. Police then lifted the dead body from the
spot with the help of those employees. Police then prepared a
report and Mr. Arland signed it. Police also prepared three E
seizure lists in his presence in regard to many articles like earth
t stained with blood, some burnt black and greenish plastics
stained with blood, some quantity of control earth, one black
shoe with one socks inside, one cement slab, one blue jeans
~ F
and one blue sweater, which the dead body was wearing and
another deep brown socks lying under the cement slab. Police
found the dead body under the cement slab. The seizure lists
as were prepared by the police were signed by Mr. Arland
along with other witnesses. Police also labelled the seized
articles in presence of Mr. Arland and other witnesses and they G
also signed such labels. As police left the spot after doing their
job, Mr. Arland came back to his office within the cemetery .
.......
----..,,.
,,. The statement of Mr. Arland as given to the police and
recorded by the police was treated by the police as the F.l.R. H
476 SUPREME COURT REPORTS [2008] 15 S.C.R.

A of the case and Beniapukur police recorded the case No. 32
dated 10.2.1994 u/s 302/201 l.P.C. against unknown persons.
S.I. Sahajamal Mondal who went to the spot along with other
police personnel on getting the telephonic information of Mr.
Arland a$ shown earlier, took up the investigation of the case
B under the orders of his superior officers. He also made entries
in the General Diary of the police station while leaving for the
spot and after coming back to the police station. He sent the
original FIR formal F.l.R. and the seizure lists to the court of the
Ld. A.C.J.M. Sealdah, along with prayer for keeping the seized .
..l

c articles in the police station malkhana. He also sent necessary
requisitions to the Professor Forensic and State Medicine,
N.R.S .. Medical College, Calcutta, for holding the post mortem
examination of the dead body. He also had been to the said
morgue on that day. On 12.2.1994 he sent a requisition to the
D Plan Making section of Detective Department, Lalbazar asking
it to take appropriate steps by coming to the place of -
occurrence. Thereafter on 17.2.94 the then O/C of Beniapukar )"

Police Station Sashanka Sekhar Dey arrested accused Md. 1

Nadir, brought him to the police station and handed over the
accused to S.I. Sahajamal Monda!. .S.I. Sahajamal Monda! then
E interrogated Md. Nadir and pursuant to his statement he
recovered some articles being led by Md. Nadir.
\

On 17 .2.1994 the accused was taken up by the Detective
Department of Calcutta Police for further investigation. After
F investigation charges were filed. Since the accused persons -f.
pleaded innocence they were tried. In order to prove
accusations, prosecution examined 34 witnesses. The trial
Court noticed that the witnesses could be categorized into six
categories. Out of these, witnesses belonging to 2nd and 3rd
G category had last seen accused and the deceased together.
So far as third category is concerned, they depos~d to have
seen the accused and the deceased at the point of entry. At
the time of departure, The accused persons alone came out.
The fourth category speaks about the presence of accused
H persons at the scene of occurrence and category five belongs
MOHD. AZAD@ SAMIN v. STATE OF WEST BENGAL 477

- [DR. ARIJIT PASAYAT, J.]

to recovery. A
f--
Learned counsel for the appellants submitted that the case
rests on circumstantial evidence. The medical evidence on
which the prosecution relied falsified the prosecution case
because the doctor found the presence of injuries and, B
therefore, the presence of body of deceased for three days rules
out the prosecution version that the injuries were inflicted on
6.2.1994. It is pointed out that there are several persons
,i
• working near the scene of occurrence. But for four days the
body of the deceased could hot be noticed. It is further
submitted that scaling of the wall as stated by some witnesses
c
is not probable. So far as the confessional statement by
accused Md. Azad is concerned it is stated that no burning was
coming. But plea is given that burning was coming. It is
submitted that during examination under Section 313 of the
Code of Criminal Procedure, 1973 (in short the 'Code') no D
~
question was put about PW-24. There would be no question
of conspiracy and mere presence cannot lead to inference of
' guilt of conspiracy. It is pointed out that only one witness speaks
out scaling while others did not.
E
With reference to the doctor's evidence it is pointed out
that the doctor spoke that there was no alcohol in the lungs and
the brain. Therefore, the identification of the accused is of no
consequence.

4. In response, learned counsel for the State submitted that
F
the High Court has analysed the evidence in great detail and
nothing infirm is there to warrant interference.

5. So far as the freshness of the injuries is concerned, the
doctor PW-29 in his opinion before the Investigating Officer on G
9.3.1996 affirmed his view that death might have taken place

.,,,
.-.~

'
4/5 days prior to the post mortem examination of the dead body .
From the First Information Report as well as the statement of
Secretary of the cerr.etery who lodged the FIR it is clear that
neither he nor any of the staff of the cemetery had noticed the H
478 SUPREME COURT REPORTS (2008] 15 S.C.R.

A dead body but only a child found a dead body and informed
one of the staff of the cemetery who in turn informed the
informant. It is on record that the child was in the cemetery for
the purpose of flying kite and for playing in the open field and
that is how he was moving hither and thither and noticed the
B dead body was lying in a corner which was a long area. That
being so, the plea that the body could have been unnoticed by
the appellants is unacceptable. It is to be noted that the date
of occurrence was· in the early part of February and the dead
body was discovered with full wearing apparels including winter
c garments, shoes and socks. The dead body was lying in half
dug manner and a cement slab was placed on the face of the
dead body. According to the High Court, that being the
situation, the dead body was not exposed to sun and wind and
the chance of receiving dews throughout the whole night and
upto certain parts of the morning cannot be ruled out. Therefore,
0
the view of the doctor about the date of death being on or
around 6.2.1994 is not rendered doubtful.

6. According to the prosecution version on the night of
6.2.1994, the appellants and the deceased purchased wine
E from a shop nearby and thereafter they entered into the
cemetery not from the usual gate but after scaling the wall. The
identification by the workers of the cemetery has also been
established by cogent evidence. The witnesses stated that on
a wintry night they were warming themselves by burning wood.
F The appellants appeared there and wanted water and there was
altercation in between. them and one of the appellants gave a
slap on the face of one of the workers. In the Test Identification
Parade, some of the workers identified appellant Nadir as the
man who went to fetch water. Therefore, the prosecution version
G in that regard is cogent.

7. So far as the alleged confessional statement of Md.
Azad is concerned Sankar Nath Das (PW-24) had categorically
stated about the recording of confessional statement. The
salesman of the wine shop (PW-18) spoke about appellant Md.
H
MOHD. AZAD@ SAMIN v. STATE OF WEST BENGAL 479
[DR. ARIJIT PASAYAT, J.].

f . Nadir. The said accused demanded wine on credit which was A
denied and thereafter he paid cash and purchased bottle of
wine. PW-10 one of the workers spoke about the demand by
one of the accused persons for water. He identified the person
who had brought water in a mug. The witness identified th(f
accused appellant Nadir to be the man. He also identifieq B
accused in test identification parade. To the similar effect is the
evidence of PW-12 who spoke about the supply of drinking
water. So far as absence of alcohol in lungs and brain is
concerned, the doctor categorically stated that the stomach
contained 10 gms of fluid with strong smell of alcohol. c
8. Regarding recording of confessional statement is
concerned, learned Judicial Magistrate, 6th Court, Sealdah has
categorically stated that the requirement of Section 164(2) of
Code was strictly followed. le has categorically stated that the
confessional statement was given voluntarily and it was 0
recorded after observing all statutory formalities.

9. It has been consistently laid down by this Court that
where a case rests squarely on circumstantial evidence, the
ir.ference of guilt can be justified only when all the incriminating E
facts and circumstances are found to be incompatible with the
innocence of the accused or the guilt of any other person. (See
Hukam Singh v. State of Rajasthan AIR (1977 SC 1063);
Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316);
Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); F
State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224);
Ba/winder Singh v. State of Punjab (AIR 1987 SC 350); Ashok
Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The ,
circumstances from which an inference as to the guilt of the
accused is drawn have to be proved beyond reasonable doubt
G
and have to be shown to be closely connected with the principal
fact sought to be inferred from those circumstances. In Bhagat
Ram v. State of Punjab (AIR 1954 SC 621 ), it was laid down
that where the case depends upon the conclusion drawn from
circumstances the cumulative effect of the circumstances must
H
!
480 SUPREME COURT REPORTS [2008) 15 S.C.R. t

A be such as to negative the innocence of the accused and bring -+
the offences home beyond any reasonable doubt.

10. We may also make a reference to a decision of this
Court in C. Chenga Reddy and Ors. v. State of A.P. (1996)
10 sec 193, wherein it has been observed thus:
B
"In a case based on circumstantial evidence, the
settled law is that the circumstances from which the J..
conclusion of guilt is drawn should be fully proved and such •
circumstances must be conclusive in nature. Moreover, all
c the circumstances should be complete and there should
be no gap left in the chain of evidence. Further the proved
circumstances must be consistent only with the hypothesis
of the guilt of the accused and totally inconsistent with his
innocence .... ".
D
11. In Padala Veera Reddy v. State of A.P. and Ors. (AIR ..,
1990 SC 79), it was laid down that when a case rests upon
circumstantial evidence, such evidence must satisfy the
•
following tests:
E -"(1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly
established;
~
(2) those circumstances should be of a definite tendency
-;.-
F unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively should form a
chain so complete that there is no escape from the
conclusion that within all human probability the crime was
committed by the accused and none else; and
G
(4) the circumstantial evidence in order to sustain ;
I

__.,_____
conviction must be complete and incapable of explanation
of any other hypothesis than that of the guilt of the accused ""' ~
and such evidence should not only be consistent with the
H guilt of the accused but should be inconsistent with his
MOHD. AZAD@ SAMIN v. STATE OF WEST BENGAL 481
[DR. ARIJIT PASAYAT, J.]
4
'
,... innocence. A

12. In State of U.P. v. Ashok Kumar Srivastava, (1992
Crl.LJ 1104), it was pointed out that great care must be taken
in evaluating circumstantial evidence and if the evidence relied
on is reasonably capable of two inferences, the one in favour
B
of the accused must be accepted. It was also pointed out that
the circumstances relied upon must be found to have been fully
; established and the cumulative effect of all the facts so
established must be consistent only with the hypothesis of guilt.

13. Sir Alfred Wills in his admirable book "Wills' · c
-----'
Circumstantial Evidence" (Chapter VI) lays down the following
rules specially to be observed in the case of circumstantial
evidence: (1) the facts alleged as the basis of any legal
inference must be clearly proved and beyond reasonable doubt
connected with the factum probandum; (2) the burden of proof D
'1 is always on the party who asserts the existence of any fact,
~ which infers legal accountability; (3) in all cases, whether of
direct or circumstantial evidence the best evidence must be
adduced which the nature of the case admits; (4) in order to
--i
justify the inference of guilt, the inculpatory facts must be E
incompatible with fhe innocence of the accused and incapable
of explanation, upon any other reasonable hypothesis than that
of his guilt, (5) if there be any reasonable doubt of the guilt of
the accused, he is entitled as of right to be acquitted" .
. ..l{
F
14. There is no doubt that conviction can be based solely
on circumstantial evidence but it should be tested by the touch-
stone of law relating to circumstantial evidence laid down by
the this Court as far back as in 1952.
~
15. In Hanumant Govind Nargundkar and Anr. v. State of G
Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed
.
• j
thus:

"It is well to remember that in cases where the
evidence is of a circumstantial nature, the circumstances
H
t

"
~

I
t"
482 SUPREME COURT REPORTS . (2008] 15 S.C.R.

A from which the conclusion of guilt is to be drawn should ---+
r I

be in the first instance be fully established and all the facts
so established should be consistent only with the l)

hypothesis of the guilt of the accused. Again, the
~
circumstances should be of a conclusive nature and
B tendency and they. should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete
as not to leave any reasonable ground for a conclusion J. \
consistent with the innocence of the accused and it must
c be such as to show that within all human probability the act
must have been done by the accused." I-
h.:-
16. A reference may be made to a later decision in ,
~ .

Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984
r
r

SC 1622). Therein, while dealing with circumstantial evidence,
D it has been held that onus was on the prosecution to prove that
..,...
the chain is complete and the infirmity of lacuna in prosecution
~
cannot be cured by false defence or plea. The conditions
precedent in the words of this Court, before conviction could
be based on circumstantial evidence, must be fully established. \-
E They are:

(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established. The circumstances
concerned 'must' or 'should' and not 'may be' established;
-;--
F (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;

G (3) the circumstances should be of a conclusive nature and l=
tendency;
~-
....,,,____
(4) they should exclude every possible hypothesis except ...........
the one to be proved; and
H (5) there must be a chain of evidence so complete as not
;
t=
MOHD. AZAD@ SAMIN v. STATE OF WEST BENGAL 483
[DR. ARIJIT PASAYAT, J.]

to leave any reasonable ground for the conclusion A
,Y consistent with the innocence of the accused and must
show that in all human probability the act must have been
done by the accused.

17. These aspects were highlighted in State of Rajasthan B
v. Rajaram (2003 (8) SCC 180), State of Haryana v. Jagbir
Singh and Anr. (2003 (11) SCC 261) and Kusuma Ankama
Rao v. State of A.P. (Cr'm.inal Appeal No.185/2005 disposed
J of on 7.7.2008)
'
18. So far as the last seen aspect is concerned it is c
necessary to take note of two decisions of this court. In State
of U.P. v. Satish [2005 (3) sec 114] it was noted as follows:

"22. The last seen theory comes into play where the time-
gap between the point of time when the accused and the D
deceased were seen last alive and when the deceased
is found dead is so small that possibility of any person
,
"'(
other than the accused being the author of the crime
becomes impossible. It would be difficult in some cases
to positively establish that the deceased was last seen with
E
the accused when there is a long gap and possibility of
other persons coming in between exists. In the absence
of any other positive evidence to conclude that the
accused and the deceased were last seen together, it
would be hazardous to come to a conclusion of guilt in
those cases. In this case there is positive evidence that F
~
the deceased and the accused were seen together by
witnesses PWs. 3 and 5, in addition to the evidence of
PW-2."

19. In Ramreddy Rajesh Khanna Reddy v. State of A.P. G
[2006 (10) sec 172] it was noted as follows:

"27. The last-seen theory, furthermore, comes into play
):- where the time gap between the point of time when the
accused and the deceased were last seen alive and the
H

1
484 SUPREME COURT REPORTS [2008] 15 S.C.R

A deceased is found dead is so small that possibility of any
person other than the accused being the author of the
crime becomes impossible. E·ven in such a case the courts
should look for some corroboration" .

. (Se.e. also Bodhraj v. State of J&K (2·002(8) SCC
B
45).)"

20. A similar view was also taken in Jaswant Gir v. State
of Punjab [2005(12) SCC 438] and Kusuma Ankama Rao's
case (supra).
c
21. Confess.ions may be divided into two classes i.e.
judicial and extra-judicial. Judicial confessions are those which
are made before a Magistrate or a court in the course of judicial
proceedings. Extra-judicial confessions are those which are
0 made by the party elsewhere than before a Magistrate or court.
Extra-judicial confessions are generally those that are made by
a party to or before a private individual which includes even a
judicial officer in his private capacity. It also includes a
Magistra~e who is not especially empowered to record
E confessions under Section 164 of the Code of Criminal
Procedure, 1973 (for short the 'Code') or a Magistrate so
empowered but receiving the confession at a stage when
Section 164 of the Code does not apply. As to extra-judicial
confessions, two questions arise: (i) were they made
voluntarily? and (ii) are they true? As the section enacts, a
F confession made by an accused person is irrelevant in criminal
proceedings, if the making of the confession appears to the
court .to have been caused by any inducement, threat or
promise, (1) having reference to the charge against the
accused person, (2) proceeding from a person in authority, and
G (3) sufficient, in the opinion of the court to give the accused
person grounds which wouid appear to him reasonable for
supposing that by making it he would gain any adva.ntage or
avoid any evil of a temporal nature in reference to the
proceedings agafrist hiin. It follows that a confession would be
H • voluntary if it is made by the accused in a fit state of mind, and
MOHD. AZAD@ SAMIN v. STATE OF WEST BENGAL 485
[DR ARIJIT PASAYAT, J.]

if it is not caused by any inducement, threat or promise which A
r has reference to the charge against him, proceeding from a
person in authority. It would not be involuntary, if the inducement,
(a) does not have reference to the charge against the accused
person; or (b) it does not proceed from a person in authority;
or (c) it is not sufficient, in the opinion of the court to give the 8
accused person grounds which would appear to him
reasonable for supposing that, by making it, he would gain any
advantage or avoid any evil of a temporal nature in reference
~
<
to the proceedings against him. Whether or not the confession
was voluntary would depend upon the facts and circumstances c I

of each case, judged in the light of Section 24 of the Indian
Evidence Act, 1872 (in short 'Evidence Act'). The law is clear
that a confession cannot be used against an accused person
unless the court is satisfied that it was voluntary and at that
stage the question whether it is true or false does not arise. If D
the facts and circumstances surrounding the making of a
"( confession appear to cast a doubt on the veracity or
I
voluntariness of the confession, the court may refuse to act upon
the confession, even if it is admissible in evidence. One
important question, in regard to which the court has to be
satisfied with is, whether when the accused made the
E
confession, he was a free man or his movements were
controlled by the police either by themselves or through some
other agency employed by them for the purpose of securing
such a confession. The question whether a confession is
voluntary or not is always a question of fact. All the factors and F
all.the circumstances of the case, including the important factors
of the time given for reflection, scope of the accused getting a
feeling of threat, inducement or promise, must be considered
before deciding whether the court is satisfied that in its opinion
the impression caused by the inducement, threat or promise; G !

if any, has been fully removed. A free and voiuntary confession
is deserv~ng of the highest credit,. because it is presumed to
')':-
flow from the highest sense of guilt. (See R. v. Warickshall) It
is not to be conceived that a man would be induced to make a
free and voluntary confession of guilt, so contrary to the feelings H
486 SUPREME COURT REPORTS [2008] 15 S.C.R.

A and principles of human nature, if the facts confessed were not ..
true. Deliberate and voluntary confessions of guilt, if clearly
proved, are among the most effectual proofs in law. An
involuntary confession is one which is not the result of the free
will qt the maker of it So where the statement is made as a
.B r~s1,.Jlt of harassment anq continuous interrogation for several
hours after the person is treated as an offender and accused,
such statement must be regarded as involuntary. The
inducement may take the form of a promise or of a threat, and
often· the inducement involves both promise and threat, a
c promise of forgiveness if disclosure is made and threat of
prosecution if it is not. (See Woodroffe's Evidence, 9th Edn.,
p. 284.) A promise is always attached to the confession
alternative while a threat is always attached to the silence
alternative; thus, in one case the prisoner is measuring the net
advantage of the promise, minus the general undesirability of
0
a false confession, as against the present unsatisfactory
situation; while in the other case he is measuring the net
y
advantages of the present satisfactory situation, minus the
general undesirability of the confession against the threatened '
harm. It must be borne in mind that every inducement, threat or
E promise does not vitiate a confession. Since the object of the
rule is to exclude only those confessions which are testimonially
untrustworthy, the inducement, threat or promise must be such
as is calculated to lead to an untrue confession. On the
aforesaid analysis the court is to determine the absence or
F presence of an inducement, promise etc. or its sufficiency and
how or in what .
measure it worked on the - mind of the accused. ·
If the inducement, promise or threat is sufficient in the opinion
·of the court, to give the accused person grounds which would
appear to him _reasonable for supposing that by making it he
G would gain any' advantage or avoid any evil, it is enough to
exclude the confession. The words "appear to him" in the last
part of the ·,....
section refer to. the mentality of the accused.
. .. '

22. An extra-judicial confession, if voluntary and true and
H made in a fit state of mind, can be relied upon by the court.
MOHD ..A.ZAD @ SAMIN v. STATE OF WEST BENGAL 487
[DR. ARIJIT PASAYAT, J.]

The confession will have to be proved like any other fact. The A
value of the evidence as to confes~>ion, like any other evidence,
depends upon the veracity of the witness to whom it has been
made. The value of the evidence as to the confession depends
on the reliability of the witness who gives the evidence. It is not
open to any court to start with a presumption that extra-judicial B
confession is a weak type of evidE!nce. It would depend on the
nature of the circumstances, the time when the confession was
made and the credibility of the witnesses who speak to such a
confession. Such a confession can be relied upon and
conviction can be founded {hereon if the evidence about the c
confession comes from the mouth of witnesses who appear to
be unbiased, not even remotely inimical to the accused, and
in respect of whom nothing is brought out which may tend to
indicate that he may have a motive of attributing an untrvthful
statement to the accused, the words spoken to by the witness
are clear, unambiguous and unmistakably convey that the
D
accused is the perpetrator of the crime and nothing is omitted
by the witness which may militate against it. 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 if it passes the test of credibility. E

23. If the factual scenario is considered in the background
of principles relating to circumstantial evidence and extra
judicial confession, the inevitable conclusion is that appeals are
without merit, deserve dismissal, which we direct. F

K.K.T. Appeals dismissed.