# AFTAB AHMAD ANSARI v. STATE OF UTTARANCHAL

- **Citation:** [2010] 1 S.C.R. 1027
- **Court:** Supreme Court of India
- **Decided:** 2010-01-12
- **Case number:** Criminal Appeal No. 836 of 2005
- **Bench:** J.M. Panchal, T.S. Thakur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/aftab-ahmad-ansari-v-state-of-uttaranchal-26519
- **Pages:** 36

## Headnote

Penal Code, 1860 - ss.302, 376 and 201 - Rape and
murder of minor girl - Circumstantial evidence - Appreciation
A
B
of - Appellant seen fleeing away from near the place where
C
dead body of deceased was found - Blood stained frock and
underwear of deceased recovered from house of appellant's
sister pursuant to voluntary disclosure statement made by
appellant while in police custody - Underwear of appellant
seized during course of investigation found stained with blood
D
and semen - Appellant made extra judicial confession before
PW5 - ConviCtion of appellant by Courts below - Propriety
of - Held: Proper - The chain of circumstantial evidence was
complete and showed that, within all human probability, rape
and murder of deceased was committed by appellant and
E
none else and he had also caused disappearance of
evidence of those offences -
When the incriminating
circumstances proved were put to appellant while recording
his statement under s.313, CrPC, he merely denied the same
- Such denial on part of appellant and failure to explain the
F
circumstances proved was an additional link in the chain of
circumstances to bring home the charge against appellant -
Code of Criminal Procedure, 1973 - s.313 - Evidence Act,
1872 - ss. 26 and 27.
Appellant alongwith another person was prosecuted
G
for commission of rape and murder of the five year old
daughter of PW1 and for causing disappearance of
evidence of those offences. The prosecution case rested
on circumstantial evidence. The trial court held that the
1027
H
1028
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A four circumstances viz., 1) that both the accused were
seen by PW-3 fleeing away from near the place where the
dead body of the deceased was found; 2) that blood
stained frock and underwear of deceased were
recovered from the house of appellant's sister pursuant
B to disclosure statement made by appellant; 3) that
underwears of both the accused, seized during course
of investigation, were stained with human blood and
semen; and 4) that appellant made extra-judicial
confession before PWS; were fully established, and
c accordingly convicted both the accused under ss.302,
376 and 201 of IPC and sentenced them to death. The
High Court acquitted the other accused, but confirmed
the conviction of appellant under ss.302, 376 and 201 IPC,
though it modified the sentence to life imprisonment.
0 Hence the present appeal.
Dismissing the appeal, the Court
HELD: 1.1. The law relating to circumstantial
evidence is well settled. In dealing with circumstantial
E evidence, 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
F suspicions do not take place of legal proof. However, it
is no derogation of evidence to say that it is
circumstantial. Human agency may be faulty in
expressing picturization of actual incident but the
circumstances cannot fail. Therefore, many a times, it is
G aptly said that "men may tell lies, but circumstances do
not". In cases 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
H
AFTAB AHMAD ANSARI v. STATE OF
1029
UTTARANCHAL
cumulative effect of all the proved facts, each one of A
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 B
decisive. [Para 4] [1043-E-H; 1044-A-B]
1.2. 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 C
prosecution case succeed

## Text

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[2010] 1 S.C.R. 1027
AFTAB AHMAD ANSARI
v.
STATE OF UTTARANCHAL
(Criminal Appeal No. 836 of 2005)
JANUARY 12, 2010
[J.M. PANCHAL AND T.S. THAKUR, JJ.]
Penal Code, 1860 - ss.302, 376 and 201 - Rape and
murder of minor girl - Circumstantial evidence - Appreciation
A
B
of - Appellant seen fleeing away from near the place where
C
dead body of deceased was found - Blood stained frock and
underwear of deceased recovered from house of appellant's
sister pursuant to voluntary disclosure statement made by
appellant while in police custody - Underwear of appellant
seized during course of investigation found stained with blood
D
and semen - Appellant made extra judicial confession before
PW5 - ConviCtion of appellant by Courts below - Propriety
of - Held: Proper - The chain of circumstantial evidence was
complete and showed that, within all human probability, rape
and murder of deceased was committed by appellant and
E
none else and he had also caused disappearance of
evidence of those offences -
When the incriminating
circumstances proved were put to appellant while recording
his statement under s.313, CrPC, he merely denied the same
- Such denial on part of appellant and failure to explain the
F
circumstances proved was an additional link in the chain of
circumstances to bring home the charge against appellant -
Code of Criminal Procedure, 1973 - s.313 - Evidence Act,
1872 - ss. 26 and 27.
Appellant alongwith another person was prosecuted
G
for commission of rape and murder of the five year old
daughter of PW1 and for causing disappearance of
evidence of those offences. The prosecution case rested
on circumstantial evidence. The trial court held that the
1027
H
1028
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A four circumstances viz., 1) that both the accused were
seen by PW-3 fleeing away from near the place where the
dead body of the deceased was found; 2) that blood
stained frock and underwear of deceased were
recovered from the house of appellant's sister pursuant
B to disclosure statement made by appellant; 3) that
underwears of both the accused, seized during course
of investigation, were stained with human blood and
semen; and 4) that appellant made extra-judicial
confession before PWS; were fully established, and
c accordingly convicted both the accused under ss.302,
376 and 201 of IPC and sentenced them to death. The
High Court acquitted the other accused, but confirmed
the conviction of appellant under ss.302, 376 and 201 IPC,
though it modified the sentence to life imprisonment.
0 Hence the present appeal.
Dismissing the appeal, the Court
HELD: 1.1. The law relating to circumstantial
evidence is well settled. In dealing with circumstantial
E evidence, 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
F suspicions do not take place of legal proof. However, it
is no derogation of evidence to say that it is
circumstantial. Human agency may be faulty in
expressing picturization of actual incident but the
circumstances cannot fail. Therefore, many a times, it is
G aptly said that "men may tell lies, but circumstances do
not". In cases 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
H
AFTAB AHMAD ANSARI v. STATE OF
1029
UTTARANCHAL
cumulative effect of all the proved facts, each one of A
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 B
decisive. [Para 4] [1043-E-H; 1044-A-B]
1.2. 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 C
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
D
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 ci:>mplete, then a false plea or a fal~e
defence may be called into aid only to lend assurance to
E
the Court. If the circumstances proved are consistent with
the innocence of the accused, then the accused is entitled
to the benefit of doubt. However, in applying this
principle, distinction must be made between facts called
primary or basic on the one hand and inference of facts
F
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
G
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
H
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SUPREME COURT REPORTS
[2010] 1 S.C.R.
A some of these links may have to be inferred from the
proved facts. In drawing these inferences or
presumptions, the Court must have regard to the common
course of natural events, and to human conduct and their
relations to the facts of the particular case. [Para 4] (10448 A-G]
2.1. So far as the circumstance, namely, that the
accused were seen fleeing away from near the place
where the dead body of the deceased was lying is
C concerned, the prosecution relied upon the testimony of
PW3. A fair reading of the evidence tendered by this
witness makes it evident that though he is relative of
PW1, he has 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
D the case because of his relationship with PW1 (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. However, he has not made any false claim/
E exaggeration in his testimony at all and stated that he
had seen the appellant fleeing from near the place where
the dead body was lying. The reason as to why in the
early morning he was out of his house is stated by him
(i.e. he was going to jungle for answering the call of
F nature), which this Court finds to be most natural. It could
not be even remotely suggested by the defence that a
constructed latrine was available in the house of PW3
and, therefore, it was not necessary for him to move out
of his house in the early morning to go tp jtingle for
G answering call of nature. On facts, the claim made by PW3
that he had seen the appellant hurriedly entering the
house of his sister sounds probable. The Trial Court,
which had the advantage of observing demeanour of this
witness, found him to be truthful. [Paras 9, 10 and 11]
H (1046-F; 1048-B-H; 1049-A-B]
AFTAB AHMAD ANSARI v. STATE OF
1031
UTTARANCHAL
2.2. The plea that PW3 maintained silence at the time
A
when the inquest on the dead body of the deceased was
held and did not tell the Investigating Officer that he had
seen the appellant running away from near the place
where the dead body was lying would indicate that he
had not seen the appellant running away, is merely stated
B
to be rejected. The occasion for this witness to tell the
Investigating Officer that he had seen the appellant
running away from near the place where the dead body
was lying would arise only when the Investigating Officer
was to record his statement under Section 161, CrPC. c
The basic purpose of holding inquest on the dead body
is to ascertain prima facie the nature of death and to find
out whether there are injuries on the dead body or not.
The inquest panchnama cannot be treated as statement
of the witness recorded under Section 161 CrPC wherein
0
he is supposed to narrate the facts seen by him.
Therefore, it is not true to say that PW3 had maintained
silence and had not told the Investigating Officer at the
time of holding of the inquest that he had seen the
appellant running away from near the place where the
E
dead body was lying. The so called silence on the part
of this witness cannot be considered to be unnatural at
all nor the same makes his testimony doubtful in any
manner. [Para 11] (1049-D-H; 1050-A-C]
2.3. The 'running away' part attributed to the
F
appellant could not be explained by him. In his further
statement, it could not be explained by the appellant as
to what made him run away from near the place where
the dead body was found and hurriedly entering into the
house of his sister. On reappraisal of the evidence of this
G
witness, this Court finds that neither the Trial Court nor
the High Court committed any error in placing reliance on
the testimony of PW3 for coming to the conclusion that
one of the incriminating circumstances, namely, that the
H
1032
SUPREME COURT REPORTS
[2010) 1 S.C.R.
A appellant was found fleeing from near the place where
the dead body was found lying was satisfactorily proved.
[Para 11) (1050-C-E]
3.1. Another circumstance sought to be relied upon
8 by the prosecution is that the appellant had made
voluntary disclosure statement pursuant to which blood
stained clothes of the deceased were discovered. The
disclosure statement was made by the appellant in
presence of PW4. The testimony of PW7, the Investigating
Officer, makes it more than clear that after arrest, the
C appellant had made disclosure statement and willingness
to show the place where the clothes of the deceased
were concealed by him. This fact is also mentioned in the
document prepared contemporaneously i.e. seizure
memo of the deceased's clothes. According to the
D Investigating Officer, he had made efforts to summon
local witnesses but none agreed to be a witness and,
therefore, PW4 and another person were summoned to
be panch witnesses on way to the house of the
appellant's sister from where the clothes of the deceased
E were recovered. The part of the disclosure statement,
namely, that the appellant was ready to show the place
where he had concealed the clothes of the deceased is
clearly admissible under Section 27 of the Evidence Act,
1872 because the same relates distinctly to the discovery
F of the clothes of the deceased from that very place.
(Paras 12 and 13) (1050-F-G; 1052-8-C; 1054-E]
3.2. The contention that even if it is assumed that the
clothes of the deceased were recovered from the house
G of the appellant's sister pursuant to the voluntary
disclosure statement made by appellant, the prosecution
failed to prove that the clothes so recovered belonged to
the deceased and, therefore, recovery of the clothes
should not be treated as an incriminating circumstances
H
AFTAB AHMAD ANSARI v. STATE OF
1033
UTTARANCHAL
is devoid of merits. First of all, in the missing report, it A
was mentioned by PW1 that his daughter aged five years,
who was wearing frock and underwear, was missing from
near the house while playing; thus, the wearing of the
frock and underwear was mentioned by the father of the
girl at the first available opportunity. The statement by
B
PW1, as well as statement made by PW2, that there were
no clothes on the dead body of the deceased has gone
unchallenged. Naturally, therefore, it was necessary for
the Investigating Officer to find out as to where the clothes
put on by the deceased were concealed. Though the c
sister of appellant (examined as DW1) mentioned in her
testimony before the Court that the police had taken into
custody the clothes belonging to her daughter, however,
the record of the case shows that the frock and the
underwear recovered from her house pursuant to 0
disclosure statement made by the appellant were blood
stained. It was never the case of the appellant's sister that
the frock and underwear recovered or seized by the police
were blood stained and belonged to her daughter.
Further, the clothes were recovered pursuant to the
voluntary disclosure statement made by the appellant on
E
February 9, 1998 whereas the appellant's sister made
claim that the clothes, which belonged to her daughter,
were recovered and seized on September 30, 2003 when
she was examined by the appellant as one of the defence
witnesses. If the police had seized the clothes belonging
F
to her daughter, the appellant's sister would not have
maintained tacit silence for roughly about more than five
years and would have made grievance before higher
police officers or court within reasonable time. A bare
reading of her testimony makes it more than clear that she
G
had come to depose before the Court to save the
appellant who is her real brother and stated wrong facts
for the first time before the Court. Her case that the police
personnel had given 2 to 4 blows of stick to her and
threatened her that she and her husband would be
H
1034
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A implicated in the case, does not inspire confidence of this
Court. On overall view of the matter, this Court finds that
it was satisfactorily proved by the prosecution that the
frock and underwear, recovered from the house of DW1
pursuant to the voluntary disclosure statement made by
B the appellant, belonged to the deceased. [Para 13) [1054F-H; 1055-A-H; 1056-A-C]
Pu/ukuri Kottaya & Ors. vs. Emperor AIR 1947 PC 67,
referred to.
C
4. Yet another circumstance relied upon by the
prosecution is that the underwear of the appellant was
stained with blood and semen. In normal course, the
underwear would not have blood stains at all and,
therefore, it was for the appellant to offer explanation as
D to under what circumstances stains of blood were found
on his underwear, seized by the police during the course
of investigation. The fact that the underwear of the
appellant seized by the police had human blood stains
is sufficiently proved by the contents of report of
E Chemical Analyst. The fact that the blood stained
underwear put on by the appellant was seized after four
days does not make any dent in the prosecution case on
the ground that a person would not move with such
blood stained underwear for 3 - 4 days. One cannot lose
F sight of the fact that those stains were not visible and
even the Investigating Officer had stated that on
examination the underwear put on by the appellant
appeared to be stained with semen at some places. If
blood stains are found on the shirt or pant of a person
G then normally such person would not move in the village
with those clothes on, because stains of blood would be
visible and noticed by anyone. However, it is almost
difficult for anyone to notice stains of blood on underwear
worn by a person. Further, the sense of cleanliness of a
H rustic villager cannot be ignored by the Court. While
AFTAB AHMAD ANSARI v. STATE OF
1035
UTTARANCHAL
recording the statement of the appellant under Section
A
313 CrPC, it was put to him by the Judge that during the
course of investigation his blood stained underwear was
seized by the Police and his explanation was sought. In
answer to the said question, it was never claimed by the
appellant that the underwear seized was not blood
B
stained and that another underwear was substituted in
place of his underwear which was seized. [Para 14]
(1056-A-H; 1057-A-C]
5. Another circumstance sought to be relied upon by
the prosecution is that the appellant made extra judicial
C
confession before PW5, one of the panchas when
inquest on the dead body of the deceased was held.
What is asserted by the witness is that the appellant had
come to Court premises and told him near the shops that
he and the other accused had killed PW1 's daughter after D
committing rape on her. The witness further asserted that
the reason for making extra judicial confession by the
appellant was that he was ex-pradhan of the village and
the appellant was under an impression that the witness
would be able to help him by approaching the police. This
E
witness in no uncertain terms asserted bejore the court
that he had told the Investigating Officer about the extra
judicial confession made by the appellant. The Court, on
re-appreciation of evidence, finds that it is not brought on
the record of the case that this witness was on inimical
F
terms with the appellant. In fact, this witness does not
belong to the community of the appellant and belongs to
another community. There was no earthly reason for this
witness to come to the court and depose falsely about
the extra judicial confession made by the appellant. G
Though extra judicial confession is 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
H
1036
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A 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
B indicate that he may have a motive for attributing an
untruthful statement to the accused. Here, in this case, it
is proved by the prosecution that PW5, was not on
inimical terms with the appellant at all. After subjecting his
evidence to a rigorous test on the touchstone of
c credibility, this Court finds that extra judicial confession
referred to by the witness is reliable and is rightly
accepted by the Trial Court and the High Court. The
contention that when the appellant was being brought to
the court, he was in custody and, therefore, the extra
0 judicial confession referred to by PW5 would be hit by the.
provisions of Section 26 of the Evidence Act and could
not have been received in evidence, cannot be accepted.
On the facts and In the circumstances of the case, it is
not probablised by the defence that the appellant was in
custody of police officer while he had made extra judicial
E confession before PW5. The evidence relating to extra
judicial confession inspires confidence of this Court.
[Para 15) [1057-0-H; 1059-A-D; G-H; 1060-A-D]
State of U.P. vs. M.K. Anthony AIR 1985 SC 48, relied
F on.
6. In the facts and circumstances of the case, the
prosecution has proved satisfactorily and beyond
shadow of doubt following facts: (1) The deceased went
G missing in the evening of February 5, 1998 when she
was playing near her house; (2) Her naked dead body
was found at about 6 a.m. on February 8, 1998 lying on
public way; (3) She was subjected to rape and died a
homicidal death; (4) The appellant was seen fleeing away
H
AFTAB AHMAD ANSARI v. STATE OF
1037
UTTARANCHAL
from near the place where th~ dead body of the deceased
A
was lying at about 4.30 a.m. of\ February 8, 1998; (5) Blood
stained frock and blood stained underwear of the
deceased concealed in the house of sister of the
appellant, were recover~d pursuant to voluntary
disclosure statement made by the appellant while in
B
police custody; (6)Underwe'u of the appellant seized
during the course of investigation was found to be
stained with blood and semen and (7) The appellant
made extra judicial confession before PW5. The
cumulative effect of the abovementioned facts taken c
together is conclusive in establishing the guilt of the
appellant. 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 0
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. Where circumstances proved are put
F
to the accused through his examination under Section
E
313, CrPC 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. It is proved by cogent and reliable evidence that
the appellant had committed rape on the deceased and
thereafter murdered her. Here in this case, the
incriminating circumstances proved were put to the
appellant while recording his statement under Section
313, CrPC. In his further statement, recorded under
Section 313, the appellant has merely denied the same.
Therefore, such denial on the part of the appellant and
G
failure to explain the circumstances proved will have to
be treated as an additional link in the chain of
circumstances to bring home the charge against the
appellant. The circumstances proved establish the guilt
H
1038
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A of the appellant beyond reasonable doubt. [Paras 16 and
17) [1061-E-H; 1061-A-H; 1062-A-B]
Vasa Chandrasekhar Rao vs. Ponna Satyanarayana &
Anr. (2000) 6 SCC 286 and Geetha vs. State of Karnataka
8 (2000) 10 sec 72, relied on.
Case Law Reference:
AIR 1947 PC 67
referred to
Para 13
AIR 1985 SC 48
relied on
Para 15
c
(2000) 6 sec 286
relied on
Para 17
(2000) 1 o sec 12
relied on
Para 17
CRIMINAL APPELLATE JURISDICTION: C;·iminal Appeal
D No .. 836 of 2005.
From the Judgment & Order dated 17.12.2004 of the High
Court of Uttaranchal at Nainital in Criminal Appeal No. 36 of
2004.
E
J.C. Gupta, Rajesh, Dharm Singh, V.K. Agrawal for the
F
Appellant.
S.S. Shamshery, Jatinder Kumar Bhatia for the
Resondent.
The Judgment of the Court was delivered by
J.M. PANCHAL, J. 1. The appellant and one Mumtaz
were prosecuted for commission of rape and murder of
Yasmeen aged five years daughter of Nayeem Ahmad and for
G causing disappearance of evidence of those offences. The
learned Additional District and Sessions Judge, First FTC
Court, Nainital, by judgment dated January 7, 2004, rendered
in Sessions Trial No.252 of 1998, convicted the appellant and
Mumtaz under Sections 302, 376 and 201 of Indian Penal Code
H
/
AFTAB AHMAD ANSARI v. STATE OF
1039
UTIARANCHAL [J.M. PANCHAL, J.]
(IPC) and imposed penalty of death sentence for commission
A
of offence punishable under Section 302 IPC as well as R.I. for
life for commission of offence punishable under Section 376
IPC and a fine of Rs.10,000/- in default R.I. for one year and
R.I. for seven years and a fine of Rs.5,000/- in default R.I. for
one year for commission of offence punishable under Section
B
201 IPC.
2. Feeling aggrieved, the appellant and Mumtaz preferred
Criminal Appeal No. 36 of 2004 whereas Reference made
under Section 366 of the Code of Criminal Procedure by the
C
learned Additional Sessions Judge in view of death sentence
passed against both the accused was registered as Criminal
Reference 1 of 2004 before the High Court of Uttaranchal at
Nainital. The Division Bench of the High Court, by juqgment
dated December 17, 2004, has rejected the Reference and
partly allowed the appeal by acquitting accused Mumtaz but
D
affirmed the conviction of the appellant under Sections 302, 376
and 201 IPC. The death penalty awarded to the appellant for
commission of offence punishable under Section 302 IPC is
modified and the appellant is sentenced to R.I. for life for
commission of the offence punishable under Section 302 IPC.
E
The High Court has further maintained sentence imposed on
the appellant under Sections 376 and 201 IPC. The
confirmation of the conviction of the appellant under Sections
302, 376 and 201 IPC by the High Court and imposition of
different punishments for those offences, has given rise to the
F
instant Appeal by Special Leave.
3. Mr. Nayeem Ahmad is resident at Mundia Pistor Village,
Bajpur, District Udham Singh Nagar, Uttaranchal. His daughter
Yasmeen aged five years having fair complexion and round
G
face, wearing frock, underwear and sleepers was playing near
his house at about 5.00 p.m. in the evening of February 5, 1998.
It was noticed that she was missing from the place where she
was playing and, therefore, Nayeem Ahmad made frantic
·search about Yasmeen at the places of all his relatives but she
H
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SUPREME COURT REPORTS
[2010) 1 S.C.R.
A could not be traced. As search made by him did not yield any
result, he filed a missing report on February 6, 1998 at Bajpur
Police Station mentioning, inter alia, that his daughter had
disappeared while playing near his house and, therefore, steps
be taken to trace her out. On February 8, 1998, Report (Exhibit
B Ka.2) was lodged at Bajpur Police Station by Shamim Ahmad
who is real brother of Nayeem Ahmad stating, inter alia, that
Yasmeen aged about five years daughter of his elder brother
Nayeem Ahmad while playing near the house of Nayeem
Ahmad had disappeared at about 5.00 p.m. in the evening of
c February 5, 1998 for which Nayeem Ahmad had lodged a
missing report at the Police Station, but at about 6.00 a.m. on
February 8, 1998, her dead body was found lying on the public
way in front of the house of Haji Khursheed, son of Bashir
Ahmad of village Bajpur and, therefore, legal action be taken.
0
On receiving this information, concerned police personnel
reached the place where dead body of the deceased was lying.
The inquest on the dead body of the deceased was held and
necessary arrangements were made for sending the dead body
for post mortem examination. The post mortem examination
E was carried out on February 8, 1998. The examination revealed
that the deceased was subjected to rape and thereafter
strangulated. On February 9, 1998, the Investigating Officer, on
the basis of the information given by the informer, arrested both
the accused persons under Sections 302, 376 and 201 IPC.
While in custody, the appellant and Mumtaz made disclosure
F statements to the Investigating Officer pursuant to which the
appellant discovered one frock with blood marks, one white
cotton underwear with black stripes having blood stains and
one bed sheet of light green colour with plenty of blood marks
from the house of sister of the appellant. The articles
G discovered were seized under a panchnama and sent to
forensic science laboratory for analysis. The Investigating
Officer recorded the statement of those persons who were
found to be conversant with the facts of the case. On receipt of
report from the analyst and on completion of investigation, the
H
AFTAB AHMAD ANSARI v. STATE OF
1041
UTIARANCHAL [J.M. PANCHAL, J.]
appellant and Mumtaz were charge-sheeted in the Court of
A
learned Judicial Magistrate, First Class for commission of
offences punishable under Sections 302, 376 and 201 IPC.
The offences punishable under Sections 302 and 376 IPC
are exclusively triable by a Court of Sessions. Therefore, the
8
case was committed to the Court of learned Additional District
and Sessions Judge, Nainital for trial. The learned Judge
framed necessary charges against the appellant and Mumtaz
for commission of offences punishable under Section 302, 376
and 201 IPC. The same were read over to them. They pleaded
C
not guilty to the same and claimed to be tried. Therefore,
prosecution examined seven witnesses and produced
documentary evidence to prove its case against the appellant
and Mumtaz. After recording of evidence of prosecution
witnesses was over, the learned Judge explained to the
appellant and Mumtaz the circumstances appearing against
D
them in the evidence of prosecution witnesses and recorded
their further statement as required by Section 313 of the Code
of Criminal Procedure, 1973. In the further statements, the
appellant and Mumtaz pleaded ignorance in respect of certain
facts whereas in relation to some other facts their claim was
E
that they were false. The appellant and Mumtaz had expressed
. desire to examine defence witnesses which was granted by the
learned Judge. The appellant, therefore, examined DW1, Ms.
Bilkis and DW2, Lakhbinder Singh alias Lakha in defence. The
learned Judge noticed that the case was entirely resting upon
F
circumstantial evidence. After holding that the deceased died
a homicidal death, the learned Judge appreciated the evidence
and held that four circumstances, namely, that (1) both the
accused were seen by PW-3, Naseed Ahmad, at about 4.30
a.m. on 8.2.1998 fleeing away from near the place where the
G
dead body of deceased Yasmeen was found after some time;
(2) on the disclosure statement made by the appellant, blood .
stained frock and underwear of the deceased and blood
stained bed sheet were recovered; (3) underwears of both the
accused, seized, were stained with human blood and semen;
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1042
SUPREME COURT REPORTS
[2010) 1 S.C.R.
A and (4) extra-judicial confession was made by the appellant
before PW-5, Anand Swaroop, are firmly established, to bring
home guilt of the accused under Sections 302, 376 and 201
IPC. The learned Judge noticed that the chain of circumstances
established was complete, cumulative effect of which was
B indicating that in all human probability, the offences were·
committed by the appellant and Mumtaz and by none other. In
view of abovementioned conclusions, the learned Judge
convicted the appellant and Mumtaz under Section 302, 376
and 201 IPC. Thereafter, the learned Judge heard the appellant
c and Mumtaz on the question of sentence to be imposed on
them for commission of abovementioned offences. The learned
Judge noticed that this was the rarest of rare case falling within
the purview of guidelines laid down by this Court in Mau/ai &
Anr. Vs. State of M.P. AIR 2000 SC 177 and imposed death
0 penalty on both the accused for commission of offence
punishable under Section 302 IPC. The learned Judge further
imposed punishment of R.I. for life and a fine of Rs.10,000/-
and in default R.I. for one year for commission of offence
punishable under Section 376 IPC. The learned Judge further
imposed sentence of R.I. for seven years and a fine of
E Rs.5,000/- and in default R.I. for one year for commission of
offence punishable under Section 201 IPC by judgment dated
January 7, 2004. The imposition of death sentence resulted into
Criminal Reference under Section 366 of the Code of Criminal
Procedure, 1973. The appellant and Mumtaz also being
F aggrieved by the judgment of the Trial Court preferred Criminal
Appeal No.36 of 2004 before the High Court of Uttaranchal at
Nainital. The reference and appeal were heard together. The
High Court on re-appreciation of evidence came to the
conclusion that three circumstances were proved by the
G prosecution, namely, (1) both the appellants were seen by
PW3, Naseem Ahmad at about 4.30 a.m. on February 8, 1998
fleeing from near the place where the dead body of the
deceased was found; (2) blood stained frock and underwear
of the deceased and blood stained bed sheet were recovered
H
AFTAB AHMAD ANSARI v. STATE OF
1043
UTTARANCHAL [J.M. PANCHAL, J.]
pursuant to voluntary disclosure statement made by the
A
appellant; and (3) extra judicial confession was made by the
appellant before PW-5, Anand Swaroop. The Division Bench
by judgment dated December 17, 2004 has partly allowed the
appeal. The High Court has set aside the conviction of Mumtaz
recorded by the Trial Court but confirmed the conviction of the
B
appellant recorded by the Trial Court under Sections 302, 376
and 201 IPC. The High Court has further modified the sentence
of death imposed on the appellant for commission of offence
punishable under Section 302 IPC and awarded R.I. for life
whereas sentences awarded for commission of offences c
punishable under Sections 376 and 201 have been confirmed.
4. This Court has heard the learned counsel for the parties
and considered the documents forming part of the appeal. It is
relevant to notice that the prosecution has not claimed that the
rape and murder of the deceased was witnessed by anyone
D
and no direct evidence regarding the same is adduced before
the court. Admittedly, the whole case against the appellant rests
on circumstantial evidence. The law relating to circumstantial
evidence is well settled. In dealing with circumstantial evidence,
there is always a danger that conjecture or suspicion lingering
E
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. Human
F
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". In cases where evidence is of a circumstantial nature,
the circumstances from which the conclusion of guilt is to be
G
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 eff~ct of all the facts taken together is conclusive in
H
1044
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A 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
B 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
c 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
0 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. However, in applying this principle, distinction
must be made between facts called primary or basic on the 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
E 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
F 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, the Court must have regard to the common
G course of natural events, and to human conduct and their
relations to the facts of the particular case.
5. Having noticed the relevant principles governing a case
based on circumstantial evidence, this Court proposes to
H consider the question whether the case against the appellant
AFTAB AHMAD ANSARI v. STATE OF
1045
UTTARANCHAL [J.M. PANCHAL, J.]
is proved. The appellant, at the time of incident was in his early
A
20's. He is resident of village Patia Nagla, P.S. Gatpur, Tehsil
Thakurdwara, District Muradabad. His sister Ms. Bilkis, DW1, was married to Kabir Ahmad of village Bajpur where the first
informant is residing. The appellant used to visit and stay at the
house of his sister. It may be mentioned that the Trial Court was
B
of the view that four circumstances mentioned above were
proved by the prosecution.
6. The fact that deceased Yasmeen was subjected to rape
and died a homicidal death is not disputed before this Court
C
.. ·by the appellant. This fact stands amply proved by the reliable
testimony of Dr. J.S. Rawat, who performed autopsy on the
dead body of the deceased and contents of post mortem
produced at Exhibit Ka.5.
7. Similarly the fact that naked dead body of deceased
D
Yasmeen with injuries was found lying at about 6.00 a.m. on
8.2.1998 in front of the house of Haji Khursheed is amply borne
out from the trustworthy testimony of PW-1, Nayeem Ahmad,
PW-2, Shamim Ahmad, inquest report Exhibit Ka.4 etc.
8. According to the Sessions Court and· the High Court,
one of the incriminating circumstances proved by the
prosecution is 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 learned counsel for the appellant
submitted that the only witness produced by the prosecution to
prove this circumstance is PW-3, Naseem Ahmad but the said
witness does not speak of any source of light and his silence
E
F
of nottelling this fact to the Investigating Officer at the time of
holding of inquest is most unnatural and, therefore, the High
G
Court had erred in placing reliance on his evidence. Elaborating
this argument, it was submitted that the statement of Naseem
Ahmad under Section 161 was recorded on February 9, 1998
after the arrest of the appellant and Mumtaz was effected and
he does not say that he had seen the accused carrying dead
H
1046
SUPREME COURT REPORTS
(2010) 1 S.C.R.
A body or dropping any object in front of the house of Haji
Khursheed. It was pointed out that he is a close relative of the
complainant who asserted that before the report of recovery of
dead body was lodged by Shamim, he had told Nayeem and
Shamim that he had seen the appellant and Mumtaz running
s away from near the place where the dead body was found lying
but no such fact was stated in the report made by witness
Shamim Ahmad and, therefore, his claim that he had seen the
appellant fleeing from near the place where the dead body was
found lying should have been disbelieved. What was stressed
c was that according to the said witness, he and Jakir were going
to jungle for answering the call of nature and seen the appellant
entering into the house of his sister but for the same reason,
the appellant could have been out of his sister's house and,
therefore, the appellant entering into the house of his sister
0 could not have been treated as an incriminating circumstance.
What was claimed was that neither this circumstance sought
to be relied upon by the prosecution stands proved beyond
doubt by witness Naseem Ahmad nor the same can be
characterised as an incriminating circumstance and, therefore,
E the same should be ignored while appreciating the evidence
against the appellant.
9. So far as the circumstance, namely, that the appellant
and Mumtaz were seen fleeing away from near the place where
the dead body of the deceased was lying is concerned, this
F Court finds that the prosecution has relied upon the testimony
of PW2, Naseem Ahmad. After mentioning that younger
daughter of his brother Nayeem had disappeared on February
5, 1998, the witness has mentioned that in the morning of
February 8, 1998 at about 4.30 a.m. he himself and one Jakir
G were going towards jungle and when they reached near the
house of Haji Khursheed, they had seen the appellant and
Mumtaz running from near the house of Haji Khursheed and
entering into the house of Kabir. It may be stated that Kabir is
brother-in-law of the appellant, i.e., husband of Ms.