# ASAR MOHAMMAD AND ORS v. THE STATE OF U.P

- **Citation:** [2018] 13 S.C.R. 248
- **Court:** Supreme Court of India
- **Decided:** 2018-10-24
- **Case number:** Criminal Appeal No. 1617 of 2011
- **Bench:** A. M. Khanwilkar, L. Nageswara Rao
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/asar-mohammad-and-ors-v-the-state-of-u-p-32474
- **Pages:** 27

## Headnote

Penal Code, 1860:
ss. 302 and 201 - Murder - Circumstantial evidence -
Prosecution of three accused - Confessional statement of one
accused (appellant No.1) - Recovery of dead bodies at his instance
- FIR lodged on the basis of missing report filed by PW7 - Conviction
by trial court awarding death sentence to all the three accused -
High Court affirmed the conviction, but reduced the death sentence
to imprisonment for life - On appeal, held: In view of the entire
evidence and totality of the proved circumstances, courts below were
right in holding appellant No.1 guilty of the offences u/ss. 302 and
201 - Except the confession of appellant No.1 there is no other
independent substantive evidence to show involvement of other two
accused (Appellant Nos.2 and 3) for having caused murder - It is
not permissible to proceed against them solely on the confessional
statement - Therefore, appellant Nos. 2 and 3 are acquitted of the
offence punishable u/s. 302 - However, from the proved
circumstantials it is apparent that they had the knowledge of the
murder and whereabout of the dead bodies and despite that they
did not disclose the same with an intention to screen appellant No.1
- Therefore, they are liable to be convicted for offence punishable
u/s.201 - Evidence Act, 1872 - s.27.
Evidence Act, 1872:
s.27 - Scope of - The word 'fact' as contemplated in s. 27 is
not limited to 'actual physical material object' - It includes discovery
of an object, the place from which it is produced and the knowledge
of the accused as to its existence.
Evidence:
Confession - Of co-accused - If can be used against other
co-accused - Held: Confession of co-accused by itself cannot be
[2018] 13 S.C.R. 248
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the basis to proceed against the other accused unless something
more is produced to indicate their involvement in the commission of
crime.
Dismissing the appeal of appellant No.1 and partly allowing
the appeal of appellant Nos. 2 and 3, the Court
HELD: 1. No direct evidence has been produced by the
prosecution regarding the involvement of the appellants in the
commission of the crime. The prosecution rests its case solely
on circumstantial evidence. The fact that PW-1, PW-2 and PW-3
became hostile and the prosecution could not establish the factum
of motive cannot be the basis to doubt the correctness of the
finding of guilt recorded by the two courts against the accused on
the basis of other proved circumstances including the confession
of the accused No.1 about the murder of the deceased persons
and more importantly, having dumped the dead bodies in the septic
tank in the backyard of their house and to have led the police to
that place from where the two dead bodies, whose identity also
has not been disputed, came to be recovered, coupled with the
medical evidence that the cause of death of the two dead
persons was due to the ante-mortem injury caused on the neck
resulting in their death due to asphyxia and is a homicidal death.
[Paras 8 and 11][257-F]
Padala Veera Reddy v. State of Andhra Pradesh and
Ors. (1989) Supp. (2) SCC 706; Mulakh Raj & Ors. v.
Satish Kumar & Ors. (1992) 3 SCC 43 : [1992] 2 SCR
484; Nika Ram v. State of Himachal Pradesh (1972) 2
SCC 80 : [1973] 1 SCR 428 - relied on.
2. After perusing the entire evidence and taking the totality
of the proved circumstances into account, the Court is in
agreement with the conclusion reached by the trial court, which
came to be affirmed by the High Court, regarding finding of guilt
against appellant No.1, who had confessed to the police and also
led the police party to the place where the dead bodies were
dumped. [Para 12][261-H; 262-A]
3. If an offence takes place inside the privacy of a house
where the accused have all the opportunity to plan and commit
the offence at the time and in circumstances of their choice, it
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will be extremely difficult for the prosecution

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ASAR MOHAMMAD AND ORS.
v.
THE STATE OF U.P.
(Criminal Appeal No. 1617 of 2011)
OCTOBER 24, 2018
[A. M. KHANWILKAR AND L. NAGESWARA RAO, JJ.]
Penal Code, 1860:
ss. 302 and 201 - Murder - Circumstantial evidence -
Prosecution of three accused - Confessional statement of one
accused (appellant No.1) - Recovery of dead bodies at his instance
- FIR lodged on the basis of missing report filed by PW7 - Conviction
by trial court awarding death sentence to all the three accused -
High Court affirmed the conviction, but reduced the death sentence
to imprisonment for life - On appeal, held: In view of the entire
evidence and totality of the proved circumstances, courts below were
right in holding appellant No.1 guilty of the offences u/ss. 302 and
201 - Except the confession of appellant No.1 there is no other
independent substantive evidence to show involvement of other two
accused (Appellant Nos.2 and 3) for having caused murder - It is
not permissible to proceed against them solely on the confessional
statement - Therefore, appellant Nos. 2 and 3 are acquitted of the
offence punishable u/s. 302 - However, from the proved
circumstantials it is apparent that they had the knowledge of the
murder and whereabout of the dead bodies and despite that they
did not disclose the same with an intention to screen appellant No.1
- Therefore, they are liable to be convicted for offence punishable
u/s.201 - Evidence Act, 1872 - s.27.
Evidence Act, 1872:
s.27 - Scope of - The word 'fact' as contemplated in s. 27 is
not limited to 'actual physical material object' - It includes discovery
of an object, the place from which it is produced and the knowledge
of the accused as to its existence.
Evidence:
Confession - Of co-accused - If can be used against other
co-accused - Held: Confession of co-accused by itself cannot be
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the basis to proceed against the other accused unless something
more is produced to indicate their involvement in the commission of
crime.
Dismissing the appeal of appellant No.1 and partly allowing
the appeal of appellant Nos. 2 and 3, the Court
HELD: 1. No direct evidence has been produced by the
prosecution regarding the involvement of the appellants in the
commission of the crime. The prosecution rests its case solely
on circumstantial evidence. The fact that PW-1, PW-2 and PW-3
became hostile and the prosecution could not establish the factum
of motive cannot be the basis to doubt the correctness of the
finding of guilt recorded by the two courts against the accused on
the basis of other proved circumstances including the confession
of the accused No.1 about the murder of the deceased persons
and more importantly, having dumped the dead bodies in the septic
tank in the backyard of their house and to have led the police to
that place from where the two dead bodies, whose identity also
has not been disputed, came to be recovered, coupled with the
medical evidence that the cause of death of the two dead
persons was due to the ante-mortem injury caused on the neck
resulting in their death due to asphyxia and is a homicidal death.
[Paras 8 and 11][257-F]
Padala Veera Reddy v. State of Andhra Pradesh and
Ors. (1989) Supp. (2) SCC 706; Mulakh Raj & Ors. v.
Satish Kumar & Ors. (1992) 3 SCC 43 : [1992] 2 SCR
484; Nika Ram v. State of Himachal Pradesh (1972) 2
SCC 80 : [1973] 1 SCR 428 - relied on.
2. After perusing the entire evidence and taking the totality
of the proved circumstances into account, the Court is in
agreement with the conclusion reached by the trial court, which
came to be affirmed by the High Court, regarding finding of guilt
against appellant No.1, who had confessed to the police and also
led the police party to the place where the dead bodies were
dumped. [Para 12][261-H; 262-A]
3. If an offence takes place inside the privacy of a house
where the accused have all the opportunity to plan and commit
the offence at the time and in circumstances of their choice, it
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will be extremely difficult for the prosecution to lead evidence to
establish the guilt of the accused if the strict principle of
circumstantial evidence, is insisted upon. [Para 12][262-C-D]
Trimukh Moroti Kirkan v. State of Maharashtra (2006)
10 SCC 681 : [2006] 7 Suppl. SCR 156 - relied on.
4. The facts need not be self-probatory and the word "fact"
as contemplated in Section 27 of the Evidence Act is not limited
to "actual physical material object". The discovery of fact arises
by reason of the fact that the information given by the accused
exhibited the knowledge or the mental awareness of the informant
as to its existence at a particular place. It includes a discovery of
an object, the place from which it is produced and the knowledge
of the accused as to its existence. Applying this principle the
Court has no hesitation in affirming the finding of guilt recorded
against appellant No.1.[Paras 13 and 14][265-C-D; 270-F]
Vasanta Sampat Dupare v. State of Maharashtra (2015)
1 SCC 253 - relied on.
5. Except the confession of the co-accused appellant No.1,
the prosecution has not produced any independent substantive
evidence to even remotely suggest that appellant Nos.2 and 3
were involved in committing the murder. It is well settled that
confession of the co-accused by itself cannot be the basis to
proceed against the other accused unless something more is
produced to indicate their involvement in the commission of the
crime. [Para 15][270-G-H]
Kashmira Singh v. State of Madhya Pradesh [1952] SCR
526; Bhuboni Sahu v. R. (1948-49) 76 IA 147;
Periaswami Moopan, In re ILR (1931) 54 Mad 75;
Emperor v. Lalit Mohan Chuckerbutty ILR (1911) 38
Cal 559 - relied on.
Haricharan Kurmi v. State of Bihar [1964] 6 SCR 623
- followed.
6. It is not permissible to proceed against appellant nos.2
and 3 solely on the basis of the confession of appellant No.1 made
before the police, even if the relevant part of the confession is
admissible and has been duly proved. As no substantive evidence
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is forthcoming to show the involvement of appellant nos.2 and 3
for having caused the murder, it is not open to convict them for
offence punishable under Section 302, IPC. This is also because
the charge, as has been framed, is simpliciter for offence under
Section 302 and not for offence punishable under Section 302
read with Section 34 of IPC or Section 302 read with Section
120-B of IPC. No evidence has been produced by the prosecution
in this regard. These appellants, therefore, will have to be
acquitted in connection with offence punishable under Section
302 IPC. [Para 16][272-H; 273-A-C]
7. However, the fact that appellant Nos.2 and 3 cannot be
convicted for offence punishable under Section 302 IPC does
not extricate them from the offence under Section 201 IPC. The
proved circumstances discerned from the record leave no manner
of doubt that the deceased were residing along with the appellants
in the same house. Further deceased was the second wife of
appellant No.3 and deceased 'I' was none other than the son of
appellant No.3 born in wedlock with deceased 'Z'. Deceased 'Z'
was the step mother of appellant Nos.1 and 2 and deceased 'I'
was their step brother. This relationship has not been disputed.
It is also an established fact that the deceased persons had
suddenly gone missing for over two months. Obviously, no efforts
were made by appellant nos.2 and 3 to trace them nor did they
think it necessary to report that fact to the local police. This
indeed cannot be a natural behavior or conduct of appellant No.3,
the husband of deceased 'Z' and father of minor son deceased
'I'. Further, appellant nos.2 and 3 have not challenged the identity
of two dead bodies found from the septic tank in the backyard of
their house at the instance of appellant No.1. No explanation
whatsoever has been offered by them as to why they did not report
about the sudden disappearance of the deceased persons (until
their bodies were recovered from the septic tank in the backyard
of their house after two months). The concomitant is that appellant
Nos.2 and 3 had knowledge that the deceased persons had been
murdered and their dead bodies were dumped in the septic tank
in the backyard of their house and yet, they did not disclose that
fact with an intention to screen appellant No.1, the offender, from
legal punishment. In other words, even though they cannot be
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made liable for the murder for want of legal evidence in that regard,
they would certainly be guilty of having committed offence under
Section 201 IPC as established from the proved circumstances
coupled with their abject failure to offer any explanation, much
less cogent explanation, about their conduct. The inevitable and
legitimate conclusion to be deduced is that they are guilty of
offence punishable under Section 201 IPC. [Para 17][273-D-H;
274-A]
Case Law Reference
(1989) 2 Suppl. SCC 706
relied on
Para 8
[1992] 2 SCR 484
relied on
Para 9
[1973] 1 SCR 428
relied on
Para 11
[2006] 7 Suppl. SCR 156
relied on
Para 12
(2015) 1 SCC 253
relied on
Para 22
[1952] SCR 526
relied on
Para 15
(1948-49) 76 IA 147
relied on
Para 15
ILR (1931) 54 Mad 75
relied on
Para 15
ILR (1911) 38 Cal 559
relied on
Para 15
[1964] 6 SCR 623
followed
Para 15
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1617 of 2011
From the Judgment and Order dated 30.07.2009 of the High Court
of Judicature at Allahabad in Criminal Appeal No. 1631 of 2008.
S. K. Bhattacharya, L. K. Paonam, Niraj Bobby Paonam,
Mrs. Tomthinnganbi Koijam, Advs. for the Appellants.
Rajesh K. Singh, Pradeep Misra, Advs. for the Respondent.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1.
This appeal emanates from the
judgment and order passed by the High Court of Judicature at Allahabad
dated 30th July, 2009 in Criminal Appeal No.1631 of 2008, whereby the
High Court upheld the conviction recorded against the appellants for an
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offence punishable under Section 302 of the Indian Penal Code (IPC)
but converted the sentence of death into imprisonment for life with fine,
and confirmed the conviction under Section 201 of the IPC and sentence
of 2 years' imprisonment and fine, as awarded by the Additional Sessions
Judge/Special Judge, J.P. Nagar in Sessions Trial No.155/2004.
2. Briefly stated, one Shababul (PW-7) gave information to the
Police Station, Dedoli on 24th January, 2004 about one Zahida Begum,
the second wife of appellant No.3, Akhtar Mohammad, son of Munshi,
and their son Ishlam (aged about 11 years) who had gone missing from
the village for the last two months, despite which their family members
had not reported the matter to the police. The appellant Nos.1 and 2,
Asar Mohammad and Asraf Mohammad respectively, are the two sons
of appellant No.3 Akhtar Mohammad, from his first wife. Thus, deceased
Zahida Begum is the step mother of appellant Nos.1 & 2, Asar
Mohammad and Asraf Mohammad. On the basis of the aforementioned
report, the Head Constable Surendra Singh (PW-10), who was posted
as Head Moharrar, made an entry in GD No.32 (Ext. Ka-17). Acting on
that report, PW-9 Virendra Kumar Tyagi, Station House Officer of Police
Station, Dedoli, visited the village along with SI Doonger Singh Verma
(PW-6), Mangey Ram Tomar, Nath Prakash Gupta, Constable Asqar
Ali and SSI Harendra Singh (PW-4). On enquiries with Asar Mohammad
(appellant No.1/accused No.1), he disclosed that Zahida was his step
mother and her son Ishlam was his step brother. He confessed that he,
along with the other two appellants committed the murder of both Zahida
and Ishlam and thereafter, dumped their dead bodies into the septic tank
in the backyard of their house. He then led the police party to the septic
tank and removed the lid with the help of Mangat and Jagadish Valmiki
(PW-8), wherefrom the dead bodies were taken out. The dead bodies
were highly decomposed and virtually reduced to skeletons. The body
of Zahida Begum was found tied with nylon cord (Ext. Ka-18).
Thereafter, the memo of recovery of the dead bodies was prepared by
Harendra Singh (PW-4). SI Doongar Singh Verma (PW-6) conducted
the inquest and gave the inquest report. He also prepared the necessary
papers concerning the dead bodies and drew a site plan of the place of
recovery (Ext.Ka-19). The dead bodies were then dispatched for postmortem examination on the next day, i.e. 25th January, 2004. The
Investigating Officer then recorded the statement of the inquest witnesses
and proceeded to arrest Asraf Mohammad (appellant No.2/accused No.2),
ASAR MOHAMMAD AND ORS. v. THE STATE OF U.P.
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whose statement was recorded on the same day. The statements of
Begum Banu (PW-1) and Akram were recorded on 26th January, 2004.
The appellant No.3 Akhtar came to be arrested on 10th February, 2004.
The post-mortem of the dead bodies was conducted by Dr. Kuldeep
Singh (PW-5) who noted that the body of Zahida Begum inter alia had
fracture of Hyoid bone and Hyoid Cartilage which, in his opinion, was
the cause of death due to asphyxia (fracture of Hyoid bone and Thyroid
Cartilage) and that the death had occurred more than one month back.
With regard to the dead body of Ishlam, he inter alia noted that the
cause of death was due to asphyxia (fracture of Hyoid bone). After
completion of the investigation, charge-sheet (Ext. Ka-21) was submitted
before the jurisdictional Court on 11th February, 2004. The said Court
committed the case to the Sessions Court at J.P. Nagar where it was
registered as Sessions Trial No.155/2004. The Sessions Court on 5th
August, 2004 framed charges against the appellants as under:
"Charges
 I, Mushaffey Ahmad, Addl. Sess. Judge, hereby charge you,
Asar Mohammad, Asraf and Akhtar as follows:-
 That you on two months ago from 24.1.2004 (date of
information to the PS) at 1 am in the village of Panyati within the
limits of PS Didopli Distt. J.P. Nagar committed murder by
intentionally or knowingly causing the death of Smt. Zahida and
Ishlam and thereby committed an offence punishable under
Section-302 IPC and within the cognizance of this court of session.
 That you on above date, time and place having the reason to
believe that certain offence to with murder punishable with death
has been committed, did cause certain evidence of, the said offence,
to disappear, to with threw the dead bodies of victims, into gutter
with the intention of screening the said Asar Mohammad, Asraf
and Akhtar from legal punishment, and thereby committed an
offence punishable u/s 201 of the Indian Penal Code and within
the cognizance of this court of Sessions.
 And I hereby direct that you be tried on the said charge of
this court of session."
3. The prosecution examined 10 witnesses, namely, PW-1 Begum
Bano, PW-2 Haji Iqbal, PW-3 Nawab Jan, PW-4 Harendra Singh, PW5 Dr. Kuldeep Singh, PW-6 Doonger Singh Verma, PW-7 Shababul,
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PW-8 Jagdish, PW-9 V.K. Tyagi and PW-10 Surendra Singh. The defence
of the accused was of total denial. They did not produce any evidence.
The Sessions Court, after evaluating the entire evidence on record,
eventually found that even though it was a case of circumstantial
evidence, the prosecution had succeeded in establishing the guilt of the
accused beyond all reasonable doubt and found them guilty of offences
under Sections 302 and 201 of the IPC. As aforesaid, the Sessions Court
vide judgment and order dated 1st March, 2008 awarded the death
sentence with fine, for having committed the offence under Section 302
of IPC, and 2 years of imprisonment with fine in respect of offence
under Section 201 of IPC to each of the appellants.
4. All the three appellants carried the matter in appeal before the
High Court, being Criminal Appeal No.1631 of 2008, which was heard
along with the death reference received by the High Court, being
Reference No.3 of 2008. The High Court reappreciated the evidence
on record and affirmed the view taken by the Trial Court, after referring
to the relevant decisions cited before it. In conclusion, the High Court
observed as follows:-
"27. We have scrutinized the submission of learned Counsel for
the appellants and also decision of the Apex Court in the case of
Aloke Nath Dutta (supra) in all its ramifications. Having gone
through the decision, we must say that the said decision has been
rendered in different facts and circumstances and flows from
different perspective. In the said case, the Apex Court had
rendered verdict acquitting other accused persons holding
quintessentially that there was no direct evidence from which it
could be deduced that other appellants also were part of the said
conspiracy and that their presence had not been noticed by any of
the witnesses and further that nobody saw them together in the
house and also that no body saw Mrinal Dutta coming to the house
even once. In the said decision accused were acquitted under
section 120B I.P.C. In the present case the accused persons
were residing in the same house and they were very
proximate relation of the deceased. Therefore, the facts of
the said case cannot be imported for application to the facts of
the present case.
28. We have carefully scanned the evidence on record. In the
facts and circumstances and evidence on record, it brooks
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no dispute that the prosecution has proved beyond
reasonable doubt that the deceased died homicidal death.
The doctor has clearly held that cause of death of Zahida
Begum was due to Asphyxia (fracture of Hyoid bone and
Thyroid cartilage) and the death of Islam was also due to
Asphyxia (fracture of Hyoid bone). The prosecution has
proved its case beyond reasonable doubt. Another
circumstance unerringly pointing to the guilt of the accused
is that, the dead bodies were recovered from the septic
tank situated inside the house of appellant that too, on the
pointing out of Asar Mohammad. PW-3 Nawab Jan and PW8 Jagdish minced no words to say that dead bodies were
recovered on the pointing of Asar Mohammad from septic
tank, There is no dispute about the identity of the deceased.
Yet another circumstance pointing accused finger at the
appellants is that the appellants did not lodge any report
about the missing of the deceased for about two months
nor offered any explanation about their death in their
statement under section 313 Cr.P.C...."
 (emphasis supplied)
The High Court, however, noted that the facts and circumstances of the
present case would not come within the purview of a rarest of rare
case, for which reason it did not confirm the sentence of death awarded
to the appellants. The High Court, instead, commuted the sentence to
life imprisonment for offence under Section 302 of the IPC. Thus, the
appeal filed by the appellants was partly allowed to that extent and the
reference came to be rejected vide the impugned judgment and order
dated 30th July, 2009.
5. Feeling aggrieved, the appellants have filed the present appeal.
The principal argument of the appellants is that although it is a case of
concurrent finding of facts recorded by the two Courts below, the same
is replete with manifest errors and cannot stand the test of judicial
scrutiny. It is submitted that the evidence produced by the prosecution
falls short of the quality evidence required for recording a finding of guilt
against the accused in a case of circumstantial evidence. In that, the
motive behind the commission of crime has not been established at all.
No evidence is forthcoming in respect of identification of the two dead
bodies, much less to establish the fact that it was of none other than the
second wife of appellant No.3 and son of appellant No.3 respectively. It
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is vehemently contended that the police has set up PW-7 as the informant,
who was an obliging informant of the police. If his evidence is to be
discarded, the genesis of the prosecution case must collapse and, in
which case, the rest of the circumstances or the evidence would be of
no avail. It is submitted that even the other reports prepared by the
police purportedly during the investigation of the crime, were tailored to
suit the prosecution case. That ought to be discarded. It is submitted that
the evidence produced by the prosecution, taken as a whole or even in
part, by no stretch of imagination establishes the complicity of the
appellants in the commission of crime. The hypothesis on which the
prosecution case rests is unsubstantiated. Further, the statement of the
accused allegedly made to the police, which is the fulcrum of the
prosecution case, is inadmissible in evidence and, at any rate, cannot be
used against the co-accused. For all these reasons, the finding of guilt
recorded against the appellants cannot be sustained either on facts or in
law.
6. The learned counsel for the State, however, supported the
judgment under appeal and would submit that no interference is warranted
against the concurrent findings of fact. He submits that the prosecution
has established the circumstances and the chain is complete in all respects,
pointing towards the involvement of the appellants in commission of the
crime and ruling out any other possibility. He submits that the appeals
deserve to be dismissed.
7. We have heard Mr. S. K. Bhattacharya, learned counsel for
the appellants and Mr. Rajesh K. Singh, learned counsel for the
respondent. We have perused the entire record, including the original
record.
8. Before proceeding to consider the rival submissions, be it noted
that in the present case, no direct evidence has been produced by the
prosecution regarding the involvement of the appellants in the commission
of the crime. The prosecution rests its case solely on circumstantial
evidence. The legal position as to how such matter should be examined
has been expounded in Padala Veera Reddy Vs. State of Andhra
Pradesh and Ors.1 in the following words:-
"10. ..... This Court in a series of decisions has consistently held
that when a case rests upon circumstantial evidence such evidence
1 (1989) Supp. (2) SCC 706
ASAR MOHAMMAD AND ORS. v. THE STATE OF U.P.
[A. M. KHANWILKAR, J.]
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must satisfy the following tests:
(1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly
established;
(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a
chain so complete that there is no escape from the
conclusion that within all human probability the crime was
committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any
other hypothesis than that of the guilt of the accused and
such evidence should not only be consistent with the guilt
of the accused but should be inconsistent with his
innocence. (See Gambhir v. State of Maharashtra2.)
 11. See also Rama Nand v. State of Himachal Pradesh3,
Prem Thakur v. State of Punjab4, Earabhadrapa alias
Krishnappa v. State of Karnataka5, Gian Singh v. State of
Punjab6, Balwinder Singh v. State of Punjab.7"
9. In Mulakh Raj & Ors. Vs. Satish Kumar & Ors.8, the Court
succinctly restated the legal position in paragraph 4 as under:
"4. ......Undoubtedly this case hinges upon circumstantial
evidence. It is trite to reiterate that in a case founded on
circumstantial evidence, the prosecution must prove all the
circumstances connecting unbroken chain of links leading
to only one inference that the accused committed the crime.
If any other reasonable hypothesis of the innocence of the
accused can be inferred from the proved circumstances,
the accused would be entitled to the benefit. What is
2 (1982) 2 SCC 351; AIR 1982 SC 1157
3 (1981) 1 SCC 511; AIR 1981 SC 738
4 (1982) 3 SCC 462; (1983) 1 SCR 822; AIR 1983 SC 61
5 (1983)Cri LJ 846; (1983) 2 SCC 330
6 1986 Supp (1) SCC 676; AIR 1987 SC 1921
7 (1987) 1 SCC 1; AIR 1987 SC 350
8 (1992) 3 SCC 43
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required is not the quantitative but qualitative, reliable and
probable circumstances to complete the chain connecting
the accused with the crime. If the conduct of the accused in
relation to the crime comes into question the previous and
subsequent conduct are also relevant facts. Therefore, the
absence of ordinary course of conduct of the accused and
human probabilities of the case also would be relevant. The
court must weigh the evidence of the cumulative effect of
the circumstances and if it reaches the conclusion that the
accused committed the crime, the charge must be held
proved and the conviction and sentence would follow."
 (emphasis supplied)
10. Let us revert to the circumstances which commended to the
trial court and also the High Court to take the view that the chain of
proved circumstances left no manner of doubt that the accused alone
were involved in the commission of the offence in question. Those
proved circumstances can be delineated as follows :
(i) Information regarding the missing persons (Zahida and Ishlam)
was given by the village watchman, viz., Shababul (P.W.7).
(ii) The fact that the two named persons had gone missing for
about two months was reinforced after the police visited the
village to verify the same and in particular the "admission of
accused - Asar Mohammed (appellant No.1)" that the two
missing persons have been murdered by him and the other
two accused, viz., Asraf Mohammed and Akhtar (appellant
Nos.2 and 3 respectively) and "their dead bodies were dumped
by him in the septic tank in the backyard of their house."
(iii) No 'missing report' was lodged by the appellants in respect
of Zahida and Ishlam, for reasons best known to them.
(iv) Appellant No.1 told the police that he would show the place
where the dead bodies were dumped and he led the police
party to that spot in the backyard of the house of the appellants,
which was within his exclusive knowledge and opened the lid
of the septic tank himself to facilitate taking out the two dead
bodies which he admitted as that of Zahida and Ishlam.
(v) One of the two dead bodies recovered from the septic tank in
ASAR MOHAMMAD AND ORS. v. THE STATE OF U.P.
[A. M. KHANWILKAR, J.]
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the backyard of the house of the appellants was of a full
grown-up female around 32 years of age and another of a
male child of about 11 years of age which corresponded with
the age of Zahida and Ishlam respectively.
(vi) The dead bodies were dumped more than one month before
the same were removed from the septic tank in a highly
decomposed condition.
(vii) Ante-mortem injuries were noticed on the vital part of the
neck on both the dead bodies which, according to the medical
evidence, was the cause of death due to asphyxia and a case
of homicidal death.
(viii)The accused neither disputed the identity of the two dead
bodies being that of Zahida and Ishlam nor offered any
explanation, even though they were confronted with the
incriminatory evidence.
(ix) No evidence has been produced nor any explanation has been
offered by the accused regarding the reason as to why they
did not lodge a 'missing complaint/report' in respect of Zahida
and Ishlam, who were closely related to them and were staying
in the same house; nor have they produced any evidence that
both of them were still alive and were residing elsewhere.
Similarly, no explanation has been offered by them regarding
the cause of death of Zahida and Ishlam, or for that matter,
the circumstances in which their dead bodies were found in
the septic tank in the backyard of their house and also about
the ante-mortem injuries noticed on the vital part of the dead
bodies which, as per the medical evidence, was the cause of
death due to asphyxia.
11. The trial court as well as the High Court, after analysing the
evidence on record including the evidence of PWs 4 to 10, had discerned
the above circumstances pointing towards the involvement of the accused
in the commission of the crime. Both the courts have taken note of the
fact that Begum Bano (PW-1); Haji Iqbal (PW-2); and Nawab Jan (PW3) were declared hostile, as a result of which the factum of motive
behind the murder of Zahida and Ishlam could not be established by the
prosecution. Notably, even these hostile witnesses (PWs 1 to 3) have
not disputed the relationship of Zahida and Ishlam with the accused and
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the fact that they were residing with the accused in the same house
before they went missing. Be that as it may, both the courts have ruled
that other proved circumstances emanating from the evidence produced
by the prosecution, coupled with the abject silence of the accused
including having failed to offer any explanation with regard to the
incriminatory circumstances referred to above, was sufficient to bring
home the guilt against them and no other conclusion could be deduced
except that the accused were responsible for the murder of Zahida and
Ishlam. They were closely related to the deceased (as Zahida was the
second wife of accused Akhtar (appellant No.3) and Ishlam was the
son born in wedlock between them; and appellant nos.1 and 2 were the
step sons of Zahida and step brothers of Ishlam). All of them were
residing in the same house before Zahida and Ishlam went missing for
about two months. That fact was reported by Shababul (PW-7) to the
police. The fact that Shababul is on the payroll of the police cannot be
the basis to disregard the proved fact that Zahida and Ishlam had gone
missing for about two months before it was so reported to the police.
None of the appellants have either disowned their relationship with Zahida
and Ishlam or bothered to produce any tittle of evidence in defence to
show that Zahida and Ashlam were still alive and residing elsewhere.
This Court in Nika Ram Vs. State of Himachal Pradesh9, noted that
the accused and deceased (his wife) resided together and as the accused
failed to offer any cogent explanation about the circumstances in which
his wife died, it pointed towards his guilt and thus, the Court deduced
such inference. Suffice it to observe that the fact that PW-1, PW-2 and
PW-3 became hostile and the prosecution could not establish the factum
of motive cannot be the basis to doubt the correctness of the finding of
guilt recorded by the two courts against the accused on the basis of
other proved circumstances including the confession of the accused No.1
about the murder of Zahida Begum and Ishlam and more importantly,
having dumped the dead bodies in the septic tank in the backyard of
their house and to have led the police to that place from where the two
dead bodies, whose identity also has not been disputed, came to be
recovered, coupled with the medical evidence that the cause of death of
the two dead persons was due to the ante-mortem injury caused on the
neck resulting in their death due to asphyxia and is a homicidal death.
12. After perusing the entire evidence and taking the totality of
9 (1972) 2 SCC 80
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[A. M. KHANWILKAR, J.]
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the proved circumstances into account, we are in agreement with the
conclusion reached by the trial court, which came to be affirmed by the
High Court, regarding finding of guilt against appellant No.1 - Asar
Mohammed, who had confessed to the police and also led the police
party to the place where the dead bodies were dumped. In Trimukh
Moroti Kirkan Vs. State of Maharashtra10, the Court explicated that if
an offence takes place inside the privacy of a house where the accused
have all the opportunity to plan and commit the offence at the time and
in circumstances of their choice, it will be extremely difficult for the
prosecution to lead evidence to establish the guilt of the accused if the
strict principle of circumstantial evidence, is insisted upon. The Court
expounded thus:
"14. If an offence takes place inside the privacy of a house and in
such circumstances where the assailants have all the opportunity
to plan and commit the offence at the time and in circumstances
of their choice, it will be extremely difficult for the prosecution to
lead evidence to establish the guilt of the accused if the strict
principle of circumstantial evidence, as noticed above, is insisted
upon by the Courts. A Judge does not preside over a criminal
trial merely to see that no innocent man is punished. A
Judge also presides to see that a guilty man does not escape.
Both are public duties. (See Stirland v. Director of Public
Prosecution11 - quoted with approval by Arijit Pasayat, J. in
State of Punjab v. Karnail Singh12). The law does not enjoin
a duty on the prosecution to lead evidence of such character
which is almost impossible to be led or at any rate extremely
difficult to be led. The duty on the prosecution is to lead
such evidence which it is capable of leading, having regard
to the facts and circumstances of the case. Here it is
necessary to keep in mind Section 106 of the Evidence Act
which says that when any fact is especially within the
knowledge of any person, the burden of proving that fact is
upon him. Illustration (b) appended to this section throws
some light on the content and scope of this provision and it
reads:
'(b) A is charged with traveling on a railway without ticket.
10 (2006) 10 SCC 681
11 1994 AC 315; (1994) 2 AII ER 13 (HL)
12 (2003) 11 SCC 271
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The burden of proving that he had a ticket is on him.'
15. Where an offence like murder is committed in secrecy
inside a house, the initial burden to establish the case would
undoubtedly be upon the prosecution, but the nature and
amount of evidence to be led by it to establish the charge
cannot be of the same degree as is required in other cases
of circumstantial evidence. The burden would be of a
comparatively lighter character. In view of Section 106 of
the Evidence Act there will be a corresponding burden on
the inmates of the house to give a cogent explanation as to
how the crime was committed. The inmates of the house
cannot get away by simply keeping quiet and offering no
explanation on the supposed premise that the burden to
establish its case lies entirely upon the prosecution and
there is no duty at all on an accused to offer any explanation.
xxx
 xxx
 xxx
21. In a case based on circumstantial evidence where no
eye- witness account is available, there is another principle
of law which must be kept in mind. The principle is that
when an incriminating circumstance is put to the accused
and the said accused either offers no explanation or offers
an explanation which is found to be untrue, then the same
becomes an additional link in the chain of circumstances to
make it complete. This view has been taken in a catena of
decisions of this Court. [See State of Tamil Nadu v. Rajendran13
(SCC para 6); State of U.P. v. Dr. Ravindra Prakash Mittal14
(SCC para 39 : AIR para 40); State of Maharashtra v. Suresh15
(SCC para 27); Ganesh Lal v. State of Rajasthan16 (SCC para
15) and Gulab Chand v. State of M.P.17 (SCC para 4).]
22. Where an accused is alleged to have committed the murder
of his wife and the prosecution succeeds in leading evidence to
show that shortly before the commission of crime they were seen
together or the offence takes placed in the dwelling home where
13 (1999) 8 SCC 679
14 (1992) 3 SCC 300; AIR 1992 SC 2045
15 (2000) 1 SCC 471
16 (2002) 1 SCC 731
17 (1995) 3 SCC 574
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the husband also normally resided, it has been consistently held
that if the accused does not offer any explanation how the wife
received injuries or offers an explanation which is found to be
false, it is a strong circumstance which indicates that he is
responsible for commission of the crime. In Nika Ram v. State of
Himachal Pradesh18 it was observed that the fact that the accused
alone was with his wife in the house when she was murdered
there with 'khokhri' and the fact that the relations of the accused
with her were strained would, in the absence of any cogent
explanation by him, point to his guilt. In Ganeshlal v. State of
Maharashtra19 the appellant was prosecuted for the murder of
his wife which took place inside his house. It was observed that
when the death had occurred in his custody, the appellant is under
an obligation to give a plausible explanation for the cause of her
death in his statement under Section 313 Cr.P.C. The mere denial
of the prosecution case coupled with absence of any
explanation were held to be inconsistent with the innocence
of the accused, but consistent with the hypothesis that the
appellant is a prime accused in the commission of murder
of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal20
the medical evidence disclosed that the wife died of strangulation
during late night hours or early morning and her body was set on
fire after sprinkling kerosene. The defence of the husband was
that wife had committed suicide by burning herself and that he
was not at home at that time. The letters written by the wife to
her relatives showed that the husband ill-treated her and their
relations were strained and further the evidence showed that both
of them were in one room in the night. It was held that the chain
of circumstances was complete and it was the husband who
committed the murder of his wife by strangulation and accordingly
this Court reversed the judgment of the High Court acquitting the
accused and convicted him under Section 302 IPC. In State of
Tamil Nadu v. Rajendran21 the wife was found dead in a hut
which had caught fire. The evidence showed that the accused
and his wife were seen together in the hut at about 9.00 p.m. and
18 Supra @ Footnote 9
19 (1992) 3 SCC 106
20 Supra @ Footnote 14
21 Supra @ Footnote 13
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the accused came out in the morning through the roof when the
hut had caught fire. His explanation was that it was a case of
accidental fire which resulted in the death of his wife and a
daughter. The medical evidence showed that the wife died due to
asphyxia as a result of strangulation and not on account of burn
injuries. It was held that there cannot be any hesitation to come to
the conclusion that it was the accused (husband) who was the
perpetrator of the crime."
(emphasis supplied)
13. It is a settled legal position that the facts need not be selfprobatory and the word "fact" as contemplated in Section 27 of the
Evidence Act is not limited to "actual physical material object". The
discovery of fact arises by reason of the fact that the information given
by the accused exhibited the knowledge or the mental awareness of the
informant as to its existence at a particular place. It includes a discovery
of an object, the place from which it is produced and the knowledge of
the accused as to its existence. It will be useful to advert to the exposition
in the case of Vasanta Sampat Dupare v. State of Maharashtra22, in
particular, paragraphs 23 to 29 thereof. The same read thus :
"23. While accepting or rejecting the factors of discovery, certain
principles are to be kept in mind. The Privy Council in Pulukuri
Kotayya v. King Emperor23 has held thus: (IA p. 77)
"...