(i) Evidence of PW-2 cannot be used against respondent herein for the reason of improvement in statement; (ii) The testimony of PW-1 showing his conduct as against human nature is not worthy of credence for the reason that he did not actually see the accused persons; (iii) Evidence of recovery of weapon and other articles may be relevant, but could not be relevant against accused-respondent herein; and (iv) Adverse inference cannot be drawn by the Court on refusal to give specimen palm impression in spite of the order of the Court.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1432-1434 OF 2011
STATE OF U.P. … … …APPELLANT(S)
:VERSUS:
SUNIL … … …RESPONDENT(S)
WITH
CRIMINAL APPEAL NOS.1423-1424 OF 2011
REKHA SENGAR … … …APPELLANT(S)
:VERSUS:
STATE OF U.P. & ANR. … …RESPONDENT(S)
J U D G M E N T
Pinaki Chandra Ghose, J.
1. Present appeals have been directed against the judgment dated 23rd
May, 2008 passed by the High Court of Judicature at Allahabad in
Criminal Appeal No.2968 of 2007 with Criminal (Jail) Appeal No.2757 of
2007 and Capital Reference No.12 of 2007, whereby judgment and order
dated 04.04.2007 passed by the learned Additional Sessions Judge,
Etawah in Sessions Trial No.424 of 2000 was set aside and the accused-
respondent was acquitted of the offence punishable under Section 302
read with Section 34 of the Indian Penal Code. Capital Sentence
Reference for confirmation of the death sentence was consequently
rejected.
2. Brief facts necessary for adjudication of the present case are as
follows: One Kumari Rekha Sengar (PW-2), who is the complainant in
the present case, got a phone call from her mother Smt. Shashi Prabha
(now deceased) at about 11.00 to 11.30 pm on 02.09.2000 narrating that
complainant’s brother-in-law (Jeeja), namely, Suresh Pal Singh @ Guddu
along with his friend had come to their house in Etawah, Uttar
Pradesh, demanding Rs.50,000/- from her father and on refusal to meet
the demand, they became very angry. The complainant herself had a talk
with her brother-in-law and tried to pacify him but she failed as he
cut the telephone call. Later when the complainant failed to have
further communication on telephone, she left for her parents’ house
from Delhi. On reaching her parents’ house she saw dead bodies of her
father, mother, two sisters and their pet dog. Law was set into motion
after an FIR was registered by the complainant on the basis of written
report. The said Suresh Pal Singh was arrested on 04.09.2000 and on
the basis of the confessional statement made by the accused, a knife,
blood-stained clothes and other articles were recovered by the
Investigating Officer (PW-7) in the presence of PW-4 and recovery memo
Ext. Ka-8 was made. Involvement of respondent herein was also
unearthed on the basis of the said confessional statement. After
conclusion of the investigation charge-sheet was submitted before the
learned Magistrate who committed the case to the Court of Additional
Sessions Judge, Etawa, U.P. Accused Suresh Pal Singh died during the
trial and therefore criminal proceedings against him stood abated. The
Trial Court convicting the accused Sunil under Sections 302 & 429 read
with Section 34 of IPC and awarded death sentence to him and imposed a
fine of Rs.500/- for offence under Section 429 of IPC.
3. Being aggrieved, the accused-respondent preferred Criminal Appeal
No.2968 of 2007 and Criminal (Jail) Appeal No.2757 of 2007 before the
High Court. Capital Sentence Reference No.12/2007 was made by the
Additional Sessions Judge, Etawa. The High Court by its judgment and
order dated 23rd May, 2008 set aside the order of conviction and
sentence passed by the Trial Court and acquitted the accused-
respondent. Consequently, Capital Sentence Reference No.12 of 2007 was
rejected by the High Court. Hence, the State of U.P. and the
complainant are before us by filing Criminal Appeal Nos.1432-1434 of
2011 and Criminal Appeal Nos.1423-1424 of 2011, respectively.
4. We have noticed that the High Court had allowed the criminal appeal of
accused-respondent on the basis of failure on the part of the
prosecution to prove its case beyond all reasonable doubt and on the
basis of circumstantial evidence. The High Court in its finding made
four important observations: (i) Evidence of PW-2 cannot be used
against respondent herein for the reason of improvement in statement;
(ii) The testimony of PW-1 showing his conduct as against human
nature is not worthy of credence for the reason that he did not
actually see the accused persons; (iii) Evidence of recovery of weapon
and other articles may be relevant, but could not be relevant against
accused-respondent herein; and (iv) Adverse inference cannot be drawn
by the Court on refusal to give specimen palm impression in spite of
the order of the Court.
5. We have heard the learned counsel for the parties at considerable
length. During the course of hearing, learned counsel for the State of
U.P. has submitted written arguments. It is the submission of the
learned counsel for appellants that the case has been proved on the
basis of circumstantial evidence. PW-1 has proved the factum of both
accused last seen together outside the main door of house of deceased.
This witness also identified both the accused before the Trial Court.
Memo of recovered articles as a result of disclosure statement was not
only admissible against accused Suresh Pal (now deceased) but is also
admissible against accused-respondent herein. It was further submitted
that confessional statement of the co-accused who died pending trial
is relevant against the accused-respondent also. He therefore relied
upon the judgment of this Court in the case of Haroon Haji Abdulla Vs.
State of Maharashtra, AIR 1968 SC 832 = (1968) 2 SCR 641, wherein this
Court observed:
“No doubt both Bengali and Noor Mohammad retracted their
statements alleging duress and torture. But these allegations
came months later and it is impossible to heed them. The
statements were, therefore, relevant. Both Bengali and Noor
Mohammad were jointly tried with Haroon right to the end and all
that remained to be done was to pronounce judgment. Although
Bengali was convicted by the judgment, the case was held abated
against him after his death. In Ram Sarup Singh and Others v.
Emperor-(1), J was put on his trial along with L; the trial
proceeded for some time and about six months before the delivery
of judgment, when the trial had proceeded for about a year, J
died. Before his death J’s confession had been put on the
record. R. C. Mitter, J. (Henderson, J. dubitante) allowed the
confession to go in for corroborating other evidence but not as
substantive evidence by itself. Of course, the confession of a
person who is dead and has never been brought for trial is not
admissible under S. 30 which insists upon a joint trial. The
statement becomes relevant under s. 30 read with S. 32(3) of the
Evidence Act because Bengali was fully tried jointly with
Haroon. There is, however, difficulty about Noor Mohammad’s
statement because his trial was separated and the High Court has
not relied upon it.”
6. Learned counsel for the State of U.P. concluded his arguments by
submitting that the prosecution version was not only corroborated by
medical evidence of PW-5 and PW-6 but was also confirmed by FSL
Report, which proved presence of human blood on the weapon of murder
and clothes of both the accused. Since comparison of finger-prints and
foot-prints were not clear, the Trial Court directed both the accused
to give fresh foot-prints and finger-prints. On refusal to comply with
this order by the accused for almost five years, even when the same
was upheld in criminal revision before the High Court, the National
Crime Records Bureau, New Delhi and the Trial Court had rightly
treated it as an adverse inference against the accused-respondent
herein.
7. Learned counsel appearing for the accused-respondent, on the other
hand, submitted that the recovery of bag and articles (Ext.1) cannot
be made admissible against co-accused who is respondent herein.
Prosecution has not produced any witness or evidence to connect the
accused-respondent with recovered bag or articles. The complainant (PW-
2) has also improved her statement apropos presence of the accused-
respondent. But, surprisingly, there was no mention of name or other
details of the accused-respondent either in the written complaint/FIR
or in the statement made before police. Learned counsel for the
accused-respondent stoutly defended his client by concluding that
drawing adverse inference against the accused due to his refusal to
give specimen palm impression was not justified as earlier palm
impression report came in negative and application moved by the
accused praying for sending footprints and fingerprints to some other
laboratory was rejected by the Trial Court vide order dated
09.01.2007.
8. After careful perusal of the evidence and material on record, we are
of the considered opinion that the following question would play a
crucial role in helping us reaching an upright decision:
Whether compelling an accused to provide his fingerprints or
footprints etc. would come within the purview of Article 20(3)
of the Constitution of India i.e. compelling an accused of an
offence to be a “witness” against himself?
It would be relevant to quote Article 20(3) of the Constitution of
India which reads as follows:
“Article 20: Protection in respect of conviction for offences.
(1) … … …
(2) … … …
(3) No person accused of any offence shall be compelled to be a
witness against himself.”
9. The answer to the question above-mentioned lies in judicial
pronouncements made by this Court commencing with celebrated case of
State of Bombay Vs. Kathi Kalu Oghad & Ors., (1962) 3 SCR 10, wherein
it was held:
“To be a witness’ may be equivalent to ‘furnishing evidence’ in
the sense of making oral or written statements, but not in the
larger sense of the expression so as to include giving of thumb
impression or impression of palm or foot or fingers or specimen
writing or exposing a part of the body. ‘Furnishing evidence’ in
the latter sense could not have been within the contemplation of
the Constitution-makers for the simple reason that – thought
they may have intended to protect an accused person from the
hazards of self incrimination, in the light of the English Law
on the subject – they could not have intended to put obstacles
in the way of efficient and effective investigation into crime
and of bringing criminals to justice. The taking of impressions
or parts of the body of an accused person very often becomes
necessary to help the investigation of a crime. It is as much
necessary to protect an accused person against being compelled
to incriminate himself, as to arm the agents of law and the law
courts with legitimate powers to bring offenders to justice.”
10. We may quote another relevant observation made by this Court in the
case of Kathi Kalu Oghad, (supra).
“When an accused person is called upon by the Court or any other
authority holding an investigation to give his finger impression
or signature or a specimen of his handwriting, he is not giving
any testimony of the nature of a ‘personal testimony’. The
giving of a ‘personal testimony’ must depend upon his volition.
He can make any kind of statement or may refuse to make any
statement. But his finger impressions or his handwriting, in
spite of efforts at concealing the true nature of it by
dissimulation cannot change their intrinsic character. Thus, the
giving of finger impressions or of specimen writing or of
signatures by an accused person, though it may amount to
furnishing evidence in the larger sense, is not included within
the expression ‘to be a witness.”
11. In Selvi Vs. State of Karnataka, (2010) 7 SCC 263, a three-Judge Bench
of this Court while considering testimonial character of scientific
techniques like Narco analysis, Polygraph examination and the Brain-
Electric activation profile held that
“145. The next issue is whether the results gathered from the
impugned tests amount to ‘testimonial compulsion’, thereby
attracting the prohibition of Article 20(3). For this purpose,
it is necessary to survey the precedents which deal with what
constitutes ‘testimonial compulsion’ and how testimonial acts
are distinguished from the collection of physical evidence.
Apart from the apparent distinction between evidence of a
testimonial and physical nature, some forms of testimonial acts
lie outside the scope of Article 20(3). For instance, even
though acts such as compulsorily obtaining specimen signatures
and handwriting samples are testimonial in nature, they are not
incriminating by themselves if they are used for the purpose of
identification or corroboration with facts or materials that the
investigators are already acquainted with. The relevant
consideration for extending the protection of Article 20(3) is
whether the materials are likely to lead to incrimination by
themselves or ‘furnish a link in the chain of evidence’ which
could lead to the same result. Hence, reliance on the contents
of compelled testimony comes within the prohibition of Article
20(3) but its use for the purpose of identification or
corroboration with facts already known to the investigators is
not barred.
146. It is quite evident that the narco analysis technique
involves a testimonial act. A subject is encouraged to speak in
a drug-induced state, and there is no reason why such an act
should be treated any differently from verbal answers during an
ordinary interrogation. In one of the impugned judgments, the
compulsory administration of the narco analysis technique was
defended on the ground that at the time of conducting the test,
it is not known whether the results will eventually prove to be
inculpatory or exculpatory. We have already rejected this
reasoning. We see no other obstruction to the proposition that
the compulsory administration of the narco analysis technique
amounts to ‘testimonial compulsion’ and thereby triggers the
protection of Article 20(3).”
12. Thus, we have noticed that albeit any person can be directed to give
his foot-prints for corroboration of evidence but the same cannot be
considered as violation of the protection guaranteed under Article 20
(3) of the Constitution of India. It may, however, be noted that non-
compliance of such direction of the Court may lead to adverse
inference, nevertheless, the same cannot be entertained as the sole
basis of conviction.
13. In a case where there is no direct witness to prove the prosecution
case, conviction of the accused can be made on the basis of
circumstantial evidence provided the chain of the circumstances is
complete beyond all reasonable doubt. It was observed by this Court in
the case of Prakash vs. State of Karnataka, (2014) 12 SCC 133, as
follows:
“51. It is true that the relevant circumstances should not be
looked at in a disaggregated manner but collectively. Still,
this does not absolve the prosecution from proving each relevant
fact.
“6. In a case of circumstantial evidence, each circumstance
must be proved beyond reasonable doubt by independent evidence
and the circumstances so proved, must form a complete chain
without giving room to any other hypotheses and should be
consistent with only the guilt of the accused. (Lakhjit Singh
Vs. State of Punjab, 1994 Supp (1) 173)”
14. It has also been the observation of this Court in Musheer Khan Vs.
State of M.P., (2010) 2 SCC 748, apropos the admissibility of evidence
in a case solely based upon circumstantial evidence that
“55. Section 27 starts with the word `provided’.
Therefore, it is a proviso by way of an exception to Sections 25
and 26 of the Evidence Act. If the facts deposed under Section
27 are not voluntary, then it will not be admissible, and will
be hit by Article 20(3) of the Constitution of India. [See State
of Bombay vs. Kathi Kalu Oghad, [AIR 1961 SC 1808].
56. The Privy Council in Pulukori Kottaya vs. King Emperor,
[1947 PC 67] held that Section 27 of the Evidence Act is not
artistically worded but it provides an exception to the
prohibition imposed under the preceding sections. However, the
extent of discovery admissible pursuant to the facts deposed by
accused depends only to the nature of the facts discovered to
which the information precisely relates.
57. The limited nature of the admissibility of the facts
discovered pursuant to the statement of the accused
under Section 27 can be illustrated by the following example:
Suppose a person accused of murder deposes to the police officer
the fact as a result of which the weapon with which the crime is
committed is discovered, but as a result of such discovery no
inference can be drawn against the accused, if there is
no evidence connecting the knife with the crime alleged to have
been committed by the accused.
58. So the objection of the defense counsel to the discovery
made by the prosecution in this case cannot be sustained. But
the discovery by itself does not help the prosecution to sustain
the conviction and sentence imposed on A-4 and A-5 by the High
Court.”
15. From a perusal of the evidence on record, it could without any
hesitation be said that the basic foundation of the prosecution had
crumbled down in this case by not connecting the respondent with the
incident in question. And when basic foundation in criminal cases is
so collapsed, the circumstantial evidence becomes inconsequential. In
such circumstances, it is difficult for the Court to hold that a
judgment of conviction could be founded on the sole circumstance that
recovery of weapon and other articles have been made.
16. After examining every evidence and material on record meticulously and
in the light of the judgments cited above, we are of the considered
opinion that the prosecution has miserably failed to connect the
occurrence with respondent herein. Resultantly, the judgment and order
passed by the High Court setting aside of conviction order passed by
the Trial Court is hereby upheld.
17. The appeals are, accordingly, dismissed.
………………………….
….J
(Pinaki Chandra Ghose)

………………………….
….J
(Rohinton Fali Nariman)
New Delhi;
May 02, 2017.

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