Whether prosecution had been able to prove guilt of accused beyond reasonable doubt - Held, semen of

all four blood groups of accused had been detected on victim skirt - There were sufficient direct
evidence that victim had become insane at time of trial and was hence not able to take oath in court -
Thus, victim non-examination could never be said to be fatal for prosecution case - Awful account of
gang rape, as unveiled by victim in her statement under Section 164 of Code - Informant had identified
all accused persons, who were present at time of recording his evidence - Prosecution had, been able to
prove its case beyond shadow of any reasonable doubt -Appeal dismissed. [52],[53],[55],[63] and[74]

Mojib Ansari and Ors. vs. State of Jharkhand (13.08.2015 - JHRHC) : MANU/JH/0923/2015

Criminal - Conviction - Sections 376, 302 and 201 of Indian Penal Code, 1860 (I.P.C.) - Section 366 of
Criminal Procedure Code, 1973 (Cr.P.C) - Special Judge convicted Appellant/Accused for offence
punishable under provision of I.P.C and awarded death sentence to Appellant - However Special Judge
had made Reference to High Court for confirmation of death sentence in accordance with provisions of
Section 366 of Cr.P.C. - Hence, this Reference Petition - Whether, prosecution had established beyond
reasonable doubt that Appellant was guilty of committing rape on deceased and killing her by
strangulation - Held, it was notice that pair of chappals and ball of tiny girl had been found in room of
Appellant - Similarly blood stained underwear of deceased girl had been recovered from place of
occurrence - P.W.4 had identified all these articles as belonging to her daughter deceased which lead to
conclusion that incident of rape and murder must had taken place in said room adjacent to house of
victim - Thus prosecution had succeeded in establishing by cogent evidence that Appellant was close
neighbour of deceased and that place of occurrence was house of Appellant which was adjacent to
house of victim family - Further Appellant had failed to give any explanation as to presence of human
blood on his shirt and matching of blood group had strengthened circumstance more strongly against
Appellant - Underwear of deceased had been identified by P.W.4 which was found concealed in room of
which Appellant alone had knowledge - Thus prosecution had succeeded in establishing each
circumstance by cogent evidence. circumstances were conclusive in nature - Therefore it was held that
prosecution had succeeded in establishing beyond reasonable doubt that Appellant was guilty of
committing rape on deceased and killing her by strangulation - Thus trial Court had rightly held
Appellant guilty for offence under Sections 302,376 and 201 of I.P.C. - Reference Petition dismissed and
Appeal No.425/2004 filed by Accused partly allowed.Criminal - Death sentence - Section 302 of Indian
Penal Code, 1860 (I.P.C.) - Section 367 of Criminal Procedure Code, 1973 (Cr.P.C) - Whether, Appellant's
case was fall in category rarest of rare case warranting death sentence - Held, Section 302 of I.P.C.
provide punishment of death or imprisonment for life for offence of murder - There had been shift in
legislative emphasis in matter of choice of award of sentence of death or life imprisonment - Prior to
1955 Section 367 (5) of Cr.P.C enjoined upon Court convicting person of capital offence to record
reasons for awarding imprisonment for life instead of death sentence - Thus normal rule at time was to
award death sentence and imprisonment for life was an exception - However amending Act of 1955
deleted Section 367(5) of Cr.P.C leaving Court with discretion to either inflict death sentence or
imprisonment for life according to circumstances and exigencies of each case - Thought in 1973 Cr.P.C,
duty was cast upon Court to record special reasons if death sentence was to be inflicted - Thus
imprisonment for life was rule and death sentence, an exception - So considering cumulative effect of all
relevant factors, it was held that Appellant's case did not fall in category "rarest of rare case" warranting
death sentence and sentence of death penalty imposed on Appellant for offence under Section 302 of
I.P.C. was commuted to life imprisonment and sentence awarded for offences under Sections 376 and
201 I.P.C. should remain intact - Reference Petition dismissed and Appeal No.425/2004 filed by Accused
partly allowed. Ratio Decidendi"Death sentence shall be awarded in rarest of rest case taking into
consideration nature and gravity of offence."

Disposition: Appeal Allowed

State of Rajasthan vs. Jamil Khan (09.11.2004 - RAJHC) : MANU/RH/0699/2004

Criminal - Conviction - Conspiracy charges - Acquittal therefrom - Benefit thereof - Sections 109, 120B,
201, 302, 347, 364, 365 and 387 of Indian Penal Code, 1860 - Trial Court convicted Accused Nos. 1 to 11
and 13 to 17 including Appellants - High Court upheld order of conviction against all Accused, except
Accused No. 10 who was acquitted of all charges - High Court relied on testimony of Prosecution
Witness-1, son of deceased and testimony of PW-13, who saw deceased walking - Both Trial Court and
High Court treated PW-10 and PW-11 as accomplices - Hence, present appeals - Whether High Court
was justified in upholding conviction imposed on Appellants by Trial Court - Whether benefit could be
obtained by acquittal under Section 120B of Code Facts: The son of the deceased lodged a missing
person complaint as the deceased went for morning walk, but did not return home. The Investigating
Officer came to know of the involvement of Accused No. 5 in the case through an informant. On the
basis of his statement, the FIR was altered and the offences under Sections 120B read with Sections 364,
365, 302 and 201 of Indian Penal Code, 1860 were added to the same. Subsequently, the rest of the
Accused persons were arrested on the basis of the statements of the witnesses. On the basis of the
evidence of Appellant/Accused No. 3, vehicle under mahazar was recovered on the same day.
Appellant/Accused No. 4 was also arrested and on the basis of the disclosure made in the statement,
another vehicle was recovered. Appellant/Accused No. 15 was arrested and on the basis of the
disclosure, a motor cycle and a black coloured shoe kept inside the side box of that motor cycle were
recovered. The final report was filed against Accused Nos. 1 to 17 and one unknown person. Pursuant to
further investigation and apprehension of Accused No. 18, final report was filed under Section 120B
read with Sections 364, 365, 419, 437, 387, 302, 402 and 201 of Indian Penal Code, 1860. The Trial Court
convicted and sentenced Accused Nos. 1 to 11 and 13 to 17. Accused Nos. 12 and 18 were acquitted of
all charges. The Accused persons preferred appeals against their conviction and the State preferred an
appeal against the acquittal of acquitted Accused before the High Court. The High Court upheld the
order of conviction against all the Accused, except Accused No. 10 who was acquitted of all the charges.
The High Court relied on the testimony of PW-1, the son of the deceased and the testimony of PW-13,
who saw the deceased walking. The next crucial link, according to the High Court was provided from the
evidence of PW-10 and PW-11, who saw some of the Accused bringing the deceased into the vermicelli
manufacturing factory premises. Both the Trial Court and the High Court treated PW-10 and PW-11 as
accomplices, keeping in view their role in the entire incident. The High Court accordingly, came to the
conclusion that the evidence of PW-10 and PW-11 was reliable and could be considered while examining
the guilt of the Appellants. The High Court held that the conviction and sentence imposed by the Trial
Court in respect of all the Accused persons was liable to be confirmed as the same did not suffer from
any infirmity in law. Hence, the present appeals. Held: V. Gopala Gowda, J., while allowing the appeals:
(i) The prosecution as far as Accused Nos. 3 and A-4 were concerned rested heavily on the evidence of
PW-10 and PW-11, whose evidence was supported by the evidence of PW-33 and PW-34. From a
perusal of the evidence of PW-10 and PW-11, it became clear that they were accomplice witnesses. PW-
10 and PW-11 were not granted pardon by any Court and had been arrayed as prosecution witnesses.
The present Court held that the mere fact that pardon has not been tendered by a court of law does not
make an accomplice cease being an accomplice. PW-10 and PW-11 being accomplice witnesses, their
evidence must be treated as such, and subject to the same test of reliability of the evidence of an
accomplice or approver are subject to. [51],[56],[58] and[60] (ii) While the evidence of an accomplice
can be used to convict an Accused, as a Rule of prudence, the Court must first ensure that the testimony
of the accomplice is corroborated in material particulars by adducing independent evidence. The
independent evidence must be such that it corroborates with the testimony of the accomplice in
material particulars, that is, the corroboration must be both in respect of the crime as well as the
identity of the Accused. [62] and[64] (iii) Even at the vermicelli factory premises, Accused No. 3 stayed
downstairs, while it was PW-11 who went upstairs and actually saw the deceased tied to chains and the
room where he was kept. PW-11 only saw Accused No. 15 at the site, carrying a tiffin parcel. Accused
No. 4 was not mentioned anywhere at the vermicelli factory at all. Further, as far as Accused No. 3 was
concerned, another evidence used against him is the testimony of PW-32 and PW-33 who have
admitted to creating the evidence of the death certificate, which was allegedly required by Accused No.
3 to produce at the crematorium in order to cremate the deceased. In light of the fact that PW-32 has
admitted to issuing the death certificate without even seeing the dead body of the deceased at the
request of PW-33. PW-33 has stated that he only did so at the instance of Accused No. 3. There was no
other evidence on record to connect Accused No. 3 to the death certificate. Even if the death certificate
was taken to be genuine, it did not in any way connect Accused No. 3 to the deceased, thus rendering
the claim of the prosecution doubtful and shaky. As far as Accused No. 15 was concerned, the crucial
evidence on which reliance was placed upon by both the courts below to convict him was the recovery
of shoes on his direction. PW-31, a supervisor at the vermicelli factory, in her deposition stated that she
saw a person at the vermicelli factory premises on the next day, who stated that he had come to take
something. He took a shoe from the factory. Both the courts below, however, failed to notice that the
evidence of PW-31 could not be used against Accused No. 15, which erroneously done by the courts
below. Further, PW-1 and PW-2 both stated in their testimony that the particular shoe did not belong to
the deceased. Thus, there was nothing on record which connected Accused No. 15 either to the crime,
or to the deceased. [65] and[66] (iv) Thus, the evidence of PW-10 and PW-11 was not reliable for
recording the finding of guilt on the charges against the Accused Appellants. Even if it was placed
reliance upon, Accused Nos. 3, 4 and 15 could not be convicted of the offences of kidnapping and
murder, more so in light of the fact that they had been acquitted of the charge of criminal conspiracy
under Section 120B of Indian Penal Code by the courts below. There was no basis for convicting them
under the other Sections like 302 and 365 of Indian Penal Code. After having found that the Accused
persons were not guilty under Section 120B of Indian Penal Code, it was the duty of the Trial Court to
establish the involvement of each of the accused persons individually in each offence for which they had
been charged to hold them guilty under the same. [67] (v) For Section 109 of Indian Penal Code, it is not
enough to show a conspiracy. It has to be taken a step further. What needs to be proved is an act
committed in furtherance of that conspiracy. In the instant case, both the courts below did not find
sufficient evidence to convict the Accused Appellants of the charge under Section 120B of Indian Penal
Code. Once the charge under Section 120B of Indian Penal Code falls, in order to convict the Accused
Appellants under Section 302 read with Section 109 Indian Penal Code, or Section 365 read with Section
109 of Indian Penal Code, what was needed to be established was the happening of some overt act on
the part of the Accused Appellants. There was no evidence except the testimony of PW-10 and PW-11
which links the Accused Appellants to the crime. [68] (vi) The Trial Court erred in convicting the Accused
Appellants, more so, after having acquitted them of the offence of criminal conspiracy punishable under
Section 120B of Indian Penal Code. Even the High Court adopted the same erroneous approach while re-
appreciating the evidence against the Accused Appellants and attempting to look for a complete link, as
if the Accused persons had been convicted for the charge of criminal conspiracy as well. This shows a
gross non-application of mind on the part of the courts below, which certainly cannot be allowed to
sustain by the present Court, as the same was wholly erroneous in law. Therefore, these criminal
appeals must be allowed in exercise of the power of the present Court under Article 136 of the
Constitution of India and the Accused Appellants were entitled for acquittal from the charges. The
impugned judgment and order was set aside passed by the High Court in upholding the judgment and
order passed by the Trial Court convicting the Appellants. The prosecution had not proved its case
beyond reasonable doubt against the Accused Appellants. [69] and[70] Arun Mishra, J., while dismissing
the appeals: (vii) The abduction of the deceased was proved and deceased had been murdered soon
after his abduction in two days and thereafter his body had been cremated under the name of a
fictitious person. It was for the Accused persons to satisfy the court how the abducted victim was dealt
with by them. In the absence of such explanation it is open to the court to draw a presumption that the
abductor was the murderer also. [96] (viii) It was apparent that the deceased was killed in factory and
the fact that the Appellants were not persons who brought down body from upstairs is not enough to
exonerate Appellants considering the established facts and circumstances in case they have been rightly
held guilty of murder also. [102] (ix) The Trial Court rightly found that the Appellants had acted upon the
conspiracy of Accused Nos. 1 and 2 and had been found guilty of offences under Sections 365, 387, 302,
347, 364, 109 and 201 of Indian Penal Code. [107] (x) There was nothing to doubt the statement of PW-
10 regarding purchase of chain. The Trial court with respect to commission of offence under Section 387
of Indian Penal Code rightly gave the finding that the prosecution established its case to the effect that
the Accused Nos. 1 to 11 and 14 to 17 had committed the offence punishable under Section 387 of
Indian Penal Code beyond all reasonable doubt. [118] (xi) When charge under Section 109 had been
found established, mere their acquittal under Section 120B was of no avail to them. Charges which were
framed were specific ingredients of Section 109 had been rightly found to proceed by both the courts
below. Their acquittal under Section 120B of Indian Penal Code cannot help them as offences of both
Sections were separate. Section 120B found established against Accused Nos. 1 and 2 and other charges
against Accused/Appellants. [119] (xii) Commission of offence under Section 109 had been established
along with other sections. The conviction and the sentence imposed by the Trial Court and the High
Court was absolutely proper and no benefit could be obtained by acquittal under Section 120B of Indian
Penal Code. That does not adversely impinge upon the ingredients of Section 109 of Indian Penal Code
and other Sections for which he had been found guilty. There was no force in submission of Appellants
that once Appellants have been acquitted under Section 120B the entire case fell down. [121] (xiii) As
per the case of prosecution the body of the deceased was fully burnt as such the recovery of certain
remains which was made after several months from the cremation ground was of no utility. Remains
would not have been at cremation ground after 2 1/2 months when everyday bodies are cremated.
Their seizure and the forensic science report regarding that were of no value. The conviction and
sentence imposed by the Trial Court as affirmed by the High Court called for no interference in the
appeals. [126]

Disposition: Appeal Dismissed

Somasundaram vs. State (28.09.2016 - SC) : MANU/SC/1110/2016

Criminal - Murder - Section 302 read with Section 120B Indian Penal Code, 1860 - Prosecution case
against Appellants based on circumstantial evidence - Deceased last seen with Appellant - Confessional
statement by Appellant - Recoveries made on basis of confessional statement - Call records of Appellant
No.1 to Appellants Nos. 2, 3 and 4 - Conviction by trial court upheld by High Court - Whether the
prosecution has proven guilt beyond reasonable doubt - Whether the High Court was upholding
convictions of the Appellants Law of Evidence - Last seen theory - Section 106 Law of Evidence Act, 1872
- Deceased last seen leaving with Appellant No.1 - Deceased found 25 kms from her residence - Small
time gap between deceased last seen and deceased found dead - Appellant failed to offer any
explanation - Whether the possibility of another person having committed the murder was remote -
Whether the last seen theory points to the guilt of Appellant No.1 Law of Evidence - Motive -
Prosecution case based on circumstantial evidence - No evidence adduced to attribute motive to
Appellants for murder of deceased - Whether the prosecution has failed to prove the Appellants' guilt in
the absence of motive Facts The deceased became acquainted and friendly with Appellant No.1. Both
went to attend a function on the Appellant's motorcycle at night. The next day the deceased was found
dead in an isolated forest, 25 kms from her residence. An FIR was registered and inspection of the spot
was arranged, with photographs taken and material articles from the spot recovered. Post-mortem
examination of the deceased revealed lacerated wounds over parietal area and left frontal area and
other injuries on the body of the deceased. The post-mortem certificate opined that the injuries were
ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. It also
opined that injury found in the labia minora could be caused by forcible sexual intercourse on a woman.
Appellant No.1 was arrested and based on his confessional statement, the motorcycle and other objects
were seized. Appellant No.4 was arrested. Based on confessional statement, Appellant Nos. 2 and 3
were arrested on. Pursuant to the statement of Appellant No.2 one other motorcycle was recovered
with its key and mobile handset marked as seizure list. Statements of Appellant Nos.2 and 3 led to the
recovery of one mobile handset, one gold finger ring with inscription of letters 'Anjali' (name of the
deceased), one silver made chain with one amethyst and red coral fitted with it were seized. During the
course of investigation, call details of the Appellants were collected and also the phone of the wife of
Appellant No.1. The investigation revealed that the murder was a result of conspiracy between
Appellant Nos. 1 to 4. The Appellants were convicted by trial court under Section 302 and Section 376
IPC and awarded the death penalty. The High Court set aside the conviction under Section 376 IPC and
modified the sentence of death to life imprisonment. Hence, the present appeal. Held, dismissing the
appeal 1. The theory of "last seen alive" comes into play when the time gap between the way Appellant
No.1 and the deceased were last seen together and the deceased was found dead was so small, the
possibility of any other person committing the murder becomes impossible. The morning after the
deceased and Appellant No.1 left together, the body of deceased was found in a jungle, an isolated
place which was 25 k.m.s away from her residence. The time when deceased left with Appellant No.1
and the time she was found dead is so proximate that it points to the guilt of Appellant No.1. Having
regard to the time gap being small, it is for Appellant No.1 to explain the circumstances how and where
and in what manner he parted company with the deceased. Appellant No.1 failed to offer any
explanation, and it must be held that he failed to discharge the burden cast upon him by Section 106 of
the Act, 1872.[13] and[14] 2. Motive is an important factor in cases where the conviction is based on
circumstantial evidence but that does not mean in all cases of circumstantial evidence if prosecution is
unable to prove the motive satisfactorily, the prosecution must fail. In this case, of course, prosecution
has not adduced evidence as to what was the motive for committing murder of the deceased. But it is a
matter of common knowledge that murders have been committed without any pro-eminent motive. It is
well established that the mere fact that the prosecution has failed to translate the mental disposition of
the accused into evidence, that does not mean that no such mental condition existed in the mind of the
accused.[20] 3. The circumstances relied upon by the prosecution against Appellant No.1 are well
established by the prosecution. Upon appreciation of evidence, the trial court and the High Court rightly
held that the incriminating circumstances against Appellant No.1 are firmly established and form a
complete chain pointing to the guilt of the accused and are consistent with the hypothesis of the guilt of
Appellant No.1. There is no substantial ground to interfere with the conviction of the Appellant No.1
under Section 302 IPC. The High Court is correct in holding that there is no positive evidence for
sustaining the conviction under Section 376(2)(g) IPC.[21] 4. The telephonic calls and the recovery may
raise suspicion against Appellant Nos. 2, 3 and 4 but mere suspicion itself cannot take the place of proof.
Evidence adduced by the prosecution against Appellant Nos.2 and 3 does not form a complete chain
connecting the accused with the crime and the conviction of the Appellants under Section 302 IPC read
with Section 120B IPC cannot be sustained and is set aside. Likewise, conviction of Appellant No.4 under
Section 120B IPC cannot be sustained and is set aside.[27] 5. In a case based on circumstantial evidence,
the court must adopt a very conscious approach and should record conviction only if all the links in the
chain are complete pointing to the guilt of the accused. All the links forming complete chain must be
firmly established by the prosecution. Each link taken separately may just suggest suspicion but such
suspicion itself may not take the place of proof and not sufficient to convict the accused. All the
circumstances must be firmly established and must be consistent only with the hypothesis of the guilt.
But that is not to say that the prosecution must meet each and every hypothesis put forward by the
accused however farfetched it may be. [27]

Disposition: Appeal Dismissed

Kiriti Pal and Ors. vs. State of West Bengal and Ors. (16.04.2015 - SC) : MANU/SC/0549/2015

Summary In a case based on circumstantial evidence, the court must adopt a very conscious approach
and should record conviction only if all the links in the chain are complete pointing to the guilt of the
accused. All the links forming complete chain must be firmly established by the prosecution. Each link
taken separately may just suggest suspicion but such suspicion itself may not take the place of proof and
not sufficient to convict the accused. All the circumstances must be firmly established and must be
consistent only with the hypothesis of the guilt. But that is not to say that the prosecution must meet
each and every hypothesis put forward by the accused however farfetched it may be.

Kiriti Pal and Ors. vs. State of West Bengal and Ors. (16.04.2015 - SC) : MANU/SC/0549/2015