Paragraph numbers below are the court’s original numbering, recovered from the source text.
10. There is no doubt that conviction can be based solely, on circumstantial evidence but it should b.e tested by the· touch- stone of law relating to circumstantial evidence Jaid down by the this Court as far back as in 1952,
11. In Hanumant Govind Nargundkar ahdAnr. V State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should· be of a conclusive nature and tendency and they should c.- I … _ .. , r KUSUMA ANKAMA RAO v. STATE OF ANDHRA PRADESH [DR. ARIJIT PASAYAT, J.] be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a 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."
12. A reference may be made to a later decision in Sha rad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidenc~, it has been held that onus was on the prosecution to prove that C the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The ~onditions pre- cedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (2) the facts so established should be consistent only with the hypothesis o~the guilt of the accused, that is to say, they should not be explainable on any other ~ypothesis except that the accused is guilty; (3) the circumstances shoUld be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as G not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
13. These aspects were highlighted in State of Rajasthan v. Rajararri (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr (2003 (11) SCC 261).
14. So far as the last seen aspect is concerned it.is nee- essary to take note of two decisions of this court. In State of . UP v. Satish [2005 (3) SCC 114] it was noted as fol.lows: "22. The last seen theory comes into play where the time- gap between the point of time when the accused and the deceased were seen last alive and when the deceased is c found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused w!Jen there is a long gap and possibility of other persons coming in between. exists. In the absence of any other …. positive evidence to conclude that the accused anq the deceased were last seen together, it would be hazardous to come to a conclusion of guilt iri those cases. ·in this case there is positive evidence that the deceased and the accused were seen together by .witnesses PWs. 3 and 5, ·in addition to the evidence of PW-2."
15. In Ramreddy Rajesh Khanna, Reddy v. State of A.P [2006 (10) sec 172] it was noted as follows:) "27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration". (See also Bodhraj v. State of J&K (2002(8) SCC 45).)" • I,.
16. A similar view was also taken in Jaswant Gir v. State of Punjab [2005(12) SCC 438]. r KUSUMA ANKAMA RAO v. STATE OF ANDHRA PRADESH [DR. ARIJIT PASAYAT, J.]
17. Confessions may be divided into two classes i.e. judi- cial and extra-judicial. Judicial confessions are those which are made before a Magistrate or a court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a Magistrate or court. Extra-judicial confessions are generally those that are made by B a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magis- trate who is not especially empowered to record confessions under Section 164 of the Code of Criminal Procedure, 1973 (in short the 'Code') or a Magistrate so empowered but receiving c the confession at a stage when Section 164 does not apply. As to extra-judicial confessions, two questions arise: (1) were they made voluntarily? and (it) are they true? As the section enacts, a confession made by an ace.used person is irrelevant in crimi- nal proceedings, if the making of the confession appears to the 0 court to have been caused by any inducement, threat or prom- ise, ( 1) having reference to the charge against.the accused person, (2) proceeding from a person in authority, and ( 3) suffi- cient, in the opinion of the court to give the accused person grounds which would appear to him re·asonable for supposing that by making it he would gain any advantage or avoid any evil .
E of a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference·to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not hav~ reference to the charge against the accused person; or (b) it does not proceed from a person in authority; or (c) it is not suf- ficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing -G that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24.
The law is clear that a confession cannot be used against an accused person unless the court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances sur- rounding the making ot·a_c;onfession appear to cast a doubt on the veracity or voluntariness of the confession, the court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the court …. has to be satisfied with is, whether when the accused made.the confession, he was a-Jree man or his movements were con- trolled by the police either by themselves or through some other c agency employed by them for the purpose of securing such a f- confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the cir- cumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling ,,._ D of threat, inducement or promise, must be considered before deciding whether the court is satisfied that in its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed.
A free and voluntary confession is de:.. serving ofthe highest credit, because it is pr~sumed to flow from the highest sense of guilt. It is not to be conceived that a man would be induced to make a free and voluntary confession . of guilt, so contrary to the feelings and principles of human na- tu re; if the facts confessed were not true. Deliberate. and volun- tary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So where the statement is made as a result of harassment and continuous interrogation for several hours after the person is treated as an · offender and accused, such statement must be regarded as involtmtary. The inducement may take the form of a promise or G of a threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not.
(See: Woodroffe's Evidence, 9th Edn., p. 284.) A promise is always attached to the confession alter- native while a threat is always attached to the silence alterna- H tive; thus, in one case the prisoner is measuring the net advan- KUSUMA AN KAMA RAO v. STATE OF ANDHRA' PRADESH [DR. ARIJIT PASAYAT, J.] tage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while inthe other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not viti- ate a cot)fession. Since the object of the rule is to exclude only . those confessions which are testimonially untrustworthy, the in- ducement, threat or promise must be such as is calcula'ted to lead to an untrue confession.
On the aforesaid analysis the court is to determine the absence or presence of an inducement, C promise etc. or its sufficiency and how or in what measure it worked on the mind of the accused, If the inducement, promise or threat is sufficient in the opinion of the court, to give the ac- cused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage o~ D avoid any evil, it is enough to exclude the confession. The words "appear to him" in the last part of the section refer to the mental- ity of t~e a:ccused.
18. An extra-judicial confession, if voluntary and true. and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, de- pends upon the veracity of the witness to whom it has b~en made. The valµe of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when.the confession was . made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and convic- tion can be founded thereon if the evidence about the confes- sion comes from the mouth of witnesses who appear to be un- biased, not even remotely inimical to the accused, and in re- spect of whom nothing is brought out which may tend to indi- cate that he may have a motive of attributing an untruthful state- ment to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evi- dence of the witness to a rigorous test on the touchstone of E;3 credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibil- ity. (See State of Rajasthan v. Raja Ram (2003 (8) SCC 180).
19. If the factual scenario is considered it is seen that the prosecution clearly established the guilt of the accused. There c is no infirmity in the judgment of the trial Court as affirmed by t the High Court. The appeal is without merit, deserves dismissal which we direct. D.G. Appeal dismissed.