- (1.) This appeal has been preferred by the appellant aggrieved by the judgment and order dated 18.07.2008 passed by the High Court of Kerala partly affirming the judgment of conviction and order of sentence passed by the Additional Sessions Court whereby the appellant has been convicted for the offence under Sections 302, 364, 376, 377 and 379 of the Indian Penal Code ("IPC" for short). He has been convicted for the offence under Sections 302, 364 and 379 of the IPC by the High Court and acquitted for commission of offence under Sections 376 and 377 of the IPC. Aggrieved thereby, the instant appeal has been preferred.
(2.) As per the prosecution case, on 11.08.1996, the deceased left her house at 8.00 a.m. in the company of the accused. Thereafter, she did not come back in the evening. A. Alavi, PW -1, father of the deceased, started enquiring about her whereabouts. Vasu, PW -3, informed him that he had seen the deceased in the company of the accused in the morning. Haridas, PW -2 also informed that he had seen deceased in the company of accused in the forest. First Information Report was lodged by A. Alavi, PW -1. The Sub -Inspector recorded his statement at 2.00 a.m. on 12.08.1996 and the offence was registered. The prosecution had examined as many as 15 witnesses. Both the courts below have concurrently held that the chain of circumstances to fasten the guilt upon the appellant is complete. They have found that the deceased was last seen in the company of the accused, body had been recovered at the instance of the accused, the shirt fibre of the accused was found on the person of the deceased. Besides that, there was recovery of gold ornaments and purse of the deceased from the house of Shajahan, brother -in -law of the accused.
(3.) It was submitted by the learned counsel appearing on behalf of the appellant that the chain of circumstances is not complete. He has placed reliance upon the decision of this Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116. Paragraphs 151 to 153 of the said judgment read as follows. "151. It is well settled that the prosecution, must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court. 152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh, 1952 SCR 1091. This case has been Uniformly followed and applied by this Court in a large number of later decisions up -to -date, for instance, the cases of Tufail (alias) Simmi v. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal vinod jha. State of Maharashtra, (1972) 4 SCC 625. It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra): "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 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 be such as to exclude ev - ery 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." 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammati - cal but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, 1973 SCC (Cri) 1033 where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis 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 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." ;