In a noteworthy ruling, the Supreme Court bench comprising of Justices J M Panchal and T S Thakur has held that suspicion, however strong, cannot take the place of proof in a criminal case. Aftab Ahmad Anasari and one Mumtaz were prosecuted for commission of rape and murder of Yasmeen aged five years. daughter of Nayeem Ahmad and for causing disappearance of evidence of those offences.   

The learned Additional District and Sessions Judge, sentenced Aftab Ahmad Anasari and Mumtaz to the death penalty under Sections 302, 376 and 201 of Indian Penal Code (IPC). Thereafter on appeal, the Division Bench of the High Court partly allowed the appeal by acquitting accused  Mumtaz but affirmed the   conviction of the appellant by modifying the senctence of the appellant to rigorous imprisonment for life. Hence Aftab Ahmad Anasari approached the Supreme Court by way of a special eave petition

What was remarkable in this case was that the whole case against the appellant rests on circumstantial evidence. The court also cautioned “There is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion howsoever strong cannot be allowed to take place of proof and, therefore, the Court has to judge watchfully and ensure that the conjectures and suspicions do not take place of legal proof. However, it is no derogation of evidence to say that it is circumstantial.”

The court was of the opinion that Human agency may be faulty in expressing picturization of actual incident but the circumstances cannot fail. Therefore, many a times, it is aptly said that “men may tell  lies, but circumstances do not”.

However, with respect to circumstantial evidence, the law is well settled. Where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact must be proved individually and only thereafter the Court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/themselves, is/are not decisive.   The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever extravagant and fanciful it might be. There must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. Where the various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. If the circumstances proved are consistent with the innocence of the accused, then the accused is entitled to the benefit of doubt.   

With respect to the application of this principle the court cautioned that a distinction must be made between facts called primary or basic on one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence and decide whether that evidence proves a particular fact or not and if that fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should be no missing links in the case, yet it is not essential that every one of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences or presumptions, regard must be given to the common course of natural events, and to human conduct and their relations to the facts of the particular case.

 After observing the essential principles governing circumstantial evedence in the castant case the Court decided to examine whether the case against the appellant is proved. Aftab Ahmad Anasari, the appellant, at the time of incident, was in his early 20’s. He is resident of village PatiaNagla, Tehsil Thakurdwara, District Muradabad. His sister Ms. Bilkis, was married to Kabir Ahmad of village Bajpur where the first informant was residing.      The appellant used to visit and stay at the house of his sister. It is pertinent to mention that the Trial Court was of the view that four circumstances mentioned above were proved by the prosecution.

Furthermore, the fact that deceased Yasmeen was subjected to rape and died a homicidal death was not disputed before this Court by the Aftab Ahmad Anasari and the same was proved by the reliable testimony of Dr. J.S. Rawat, who performed autopsy on the dead body of the deceased. Moreover, dead body of deceased Yasmeen with injuries was found lying at about 6.00 a.m. on 8.2.1998 in front of the house of Haji Khursheed as was  deduced from the testimony of withnesses as well as the inquest reports.

However, one of the incriminating circumstances proved by the prosecution before th trial court and the high court was that witness Naseem Ahmad had seen the appellant and another fleeing from near the place where the dead body of the deceased was found lying at about 4.30 am on February 8, 1998. the witness, Naseem Ahmed mentioned that in the morning of February 8, 1998 at about 4.30 a.m. he himself and one Jakir were going towards jungle and they had seen the two accused running from near the house of Haji Khursheed and entering into the house of Kabir who was the  brother-in-law of  Aftab Ahmad Anasari. According to this witness, when they came back from the jungle at that time, they learnt that on the same day, dead body of daughter of Nayeem Ahmad was found near the house of Haji Khursheed.

The court was of the view that the witness had not made any false claim/exaggeration in his testimony as can be deduced from a fair reading of the evidence tendered by this witness which made it evident that though he was a relative of Nayeem, he had stated the facts seen by him in a simple manner and without any noticeable embellishments. If this witness wanted to implicate the appellant falsely in the case because of his relationship with the first informant, nothing prevented him from stating before the police and the court, that he had seen the appellant carrying the dead body of the deceased and throwing the same near the house of Haji. Therefore, the court opined that the claim made by the witness that he had seen the appellant hurriedly entering the house of his sister was probable since no major contradiction and/or omission with regard to his  earlier statement recorded before the police nor any other material could be brought on record by the defense to impeach his credibility. Another circumstance sought to be relied upon by the prosecution was that ansari had made a voluntary disclosure statement pursuant to which blood stained clothes of the deceased were discovered. According to the witnesses, Rais Ahmad and Praveen Kumar Tyagi (the Investigating Officer), Ansari and Mumtaz led them to the house of Kabir and the appellant took out one sleeveless frock, one underwear and one green coloured bed sheet from the food grains room of the house of Kabir. The witness further stated that the abovementioned articles were kept hidden under the leaves and after taking out those articles, the appellant had told that these were the clothes of Yasmeen which he had concealed. It was further stated by the witness that seizure memo was prepared by the Investigating Officer on the spot and his signature was obtained thereon after it was read over to him. It was mentioned by the witness that the sniffer dog had first smelt the dead body and then the said dog had entered into house of Kabir and picked up the appellant. It was further stated by the witness that the dog did not pick up Mumtaz and after the smelling by sniffer dog, the police had arrested the appellant and Mumtaz in his presence.

With respect to the testimony given by Ansari’s sister, the court observed that bare reading of her testimony made it clear that she had come to depose before the Court to save Ansari, the appellant, who was her real brother and stated wrong facts for the first time before the Court.   Her claim was that the clothes recovered from her house belonged to her daughter Shabanam however she failed to give a description   of  clothes  seized  during  the  course  of  her testimony before the court. She further claimed that the police personnel threatened her that she and her husband would be implicated in the case, if they do not inspire confidence of this Court. Hence on an overall view of the matter, the Court found that it was satisfactorily proved by the prosecution that the frock and underwear, recovered from the house of the witness, Ms. Bilkis, pursuant to the voluntary disclosure statement made by the appellant, belonged to the deceased.

Another circumstance that was relied upon by the prosecution was that the appellant made extra judicial confession before one AnandSwaroop, who was one of the panchas when inquest on the dead body of the deceased was held. According to this witness, while he was in Kasipur Court, Ansari had come to Court premises and told him near the shops that he and Mumtaz had killed Yasmeen. The witness stated during the cross examination that the appellant was entertaining a notion that the witness would be in a position to help him of his connection with the police.

The lower courts on re-appreciation of evidence, found that nothing was brought on the record of the case that this witness was on inimical terms with the appellant. In fact, that witness did not belong to the community of the appellant and belongs to another community. Hence the bench concluded that there was no reason for this witness to come to the court and depose falsely about the extra judicial confession made by the appellant.

Commenting on the reliability of extra judicial confession, the bench stated that the same was considered to be a weak piece of evidence by the courts.

“This Court finds that there is neither any rule of law nor of prudence that the evidence furnishing extra judicial   confession   cannot    be   relied   upon    unless corroborated by some other credible evidence.”

 “The evidence relating to extra judicial confession can be acted upon if the evidence about extra judicial confession comes from the mouth of a witness who appears to be unbiased and in respect of whom even remotely nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused.” the bench observed.

 The bench also upheld the decision made in State of U.P. vs. M.K., whereby the court held that if the word spoken by the witness are clear, unambiguous and unmistakable one showing that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra judicial confession can be accepted and can be the basis of a conviction.”

According to this Court, in such a situation, to go in search of corroboration itself tends to cause a shadow of doubt over the evidence and if the evidence of extra judicial confession is reliable, trustworthy and beyond reproaching, the same can be relied upon and a conviction can be founded thereon. Here, in this case, it was proved that AnandSwaroop  was not on inimical terms with the appellant at all. After subjecting his evidence to a rigorous test on the touchstone of credibility, the Court found that extra judicial confession referred to by the witness was reliable and was rightly accepted by the Trial Court and the High Court.  Further on consideration of the facts and circumstances of the case, the bench also concluded that there was concurrent finding by the courts below and no case was made out by the appellant to interfere with the said finding in the appeal.

Hence, the cumulative effect of the abovementioned facts and circumstances taken together conclusively established the guilt of the appellant.  The court opined “The chain of circumstantial evidence is complete and does not leave any reasonable ground for conclusion consistent with the innocence of the appellant. The chain of circumstances is such as to show that within all human probability the rape and murder of the deceased were committed by the appellant and none else and he had also caused disappearance of evidence of those offences.”

The bench, while explaining the law relating to circumstantial evidence has also ruled that where circumstances proved are put to the accused through his examination under Section 313 of the criminal procedure Code and the accused merely denies the same, then such denial would be an additional link in the chain of circumstances to bring home the charge against the accused. In this case the appellant merely denied the averments raised and failed to explain the circumstances proved. Therefore such a failure will have to be treated as an additional link in the chain of circumstances to charge the Ansari, the appellant. In consequence of the facts and circumstances of the case, the bench dismissed the appeal filed by Ansari.

BY LAWZ BUREAU