Evidence Act, 1872 – s.27 – Discovery of Fact – Criminal trial – Three accused – Disclosure statement allegedly made by accused no.3-appellant – Recovery of dead body of complainant’s husband – Appreciation of evidence – Held: s.27 requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the said fact – The information as to past user, or the past history, of the object produced is not related to its discovery – If a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence – The law expects the investigating Officer to draw the discovery panchnama u/s.27 – In the present case, the recovery panchnama is not in accordance with the said requirement, and also there is no statement of accused no.3appellant recorded u/s.27 – Consequently, prosecution failed to prove the circumstance that dead body of the deceased was recovered at the instance of accused No. 3-appellant – IPC – ss. 395, 364, 365, 380, 201, 302 and 302 r/w s.34.
Evidence Act, 1872 – s.27 – Application of – Held: Provisions of s.27 are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence. Evidence – Last seen theory – Discussed – Held: Last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when 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 – If the gap between the time of last seen and the deceased found dead is long, then the possibility of other person coming in between cannot be ruled out.
Criminal Trial – Murder case – Case resting entirely on circumstantial evidence – Appreciation of circumstantial evidence – On facts, the only circumstance against the accused was that he was last seen in the company of deceased on the basis of the evidence of PW-1 – However, solely on the basis of last seen theory, conviction cannot be upheld – Prosecution failed to prove the chain of incriminating circumstances which leads to no other conclusion than the guilt of the accused – Judgment passed by trial Court, thereby convicting appellant and impugned judgment passed by High Court affirming the same, accordingly, set aside – Appellant acquitted – IPC – ss. 395, 364, 365, 380, 201, 302 and 302 r/w s.34. Evidence – Circumstantial evidence – Appreciation of – Golden principles with regard to conviction in a case which rests entirely on circumstantial evidence – Discussed – Criminal Trial. Allowing the appeal, the Court
HELD: 1. It is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. It is a primary principle that the accused ‘must be’ and not merely ‘may be’ guilty before a court can convict the accused. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved”. The facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be such that they exclude every possible hypothesis except the one to be proved. 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 probabilities the act must have been done by the accused. [Para 10]
2. Section 27 of the Evidence Act requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the said fact. The information as to past user, or the past history, of the object produced is not related to its discovery. The law expects the IO to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. In the present case, leave aside the recovery panchnama being in accordance with the aforesaid requirement, there is no statement of accused No. 3/appellant recorded under Section 27 of the Evidence Act. Therefore, the prosecution has failed to prove the circumstance that the dead body of the deceased was recovered at the instance of accused No. 3/appellant. [Paras 21, 26]
3. Insofar as accused No.1 is concerned, the additional circumstance sought to be relied on by the trial court and the High Court is the alleged recovery of the spade. It is to be noted that the spade was also recovered from the same place from where the dead body of the deceased was alleged to have been recovered at the instance of accused No. 3/appellant. The trial court again held that the place from where the spade was recovered was already known from the disclosure statement of accused No. 3/appellant; however, it still held the recovery of the said spade to be admissible in evidence. It is thus clear that the said recovery was from a place which was already known and not exclusively within the knowledge of accused No. 1. Hence, the trial court has again committed perversity in arriving at such a finding. [Para 28]
4. It is clear that the only circumstance that now remains is the circumstance of the accused last seen in the company of the deceased on the basis of the evidence of PW1. However, solely on the basis of last seen theory, the conviction could not have been recorded. The prosecution has utterly failed to prove that the recovery of the dead body of the deceased was at the instance of accused No. 3/appellant. The recovery of the articles from the house of accused No. 3/appellant, even according to the trial court, is farce and fabricated. The recovery of the spade at the instance of accused No. 1 is from a place which, even according to the trial court, was also known on account of the disclosure statement made by accused No. 3/appellant. Therefore, the prosecution has utterly failed to prove the chain of incriminating circumstances which leads to no other conclusion than the guilt of the accused. [Para 29, 30]
Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; State of U.P. v. Satish (2005) 3 SCC 114 : [2005] 1 SCR 1132;
Chandran v. The State of Tamil Nadu (1978) 4 SCC 90 : [1979] 1 SCR 176; State of Karnataka v. David Rozario and Another (2002) 7 SCC 728:[2002] 2
Suppl. SCR 419 and Subramanya v. State of Karnataka 2022 SCC OnLine SC 1400 – relied on.
Suresh Chandra Bahri v. State of Bihar 1995 Supp. (1) SCC 80 : [1994] 1 Suppl. SCR 483 – referred to.
Pulukuri Kotayya and Others v. King-Emperor 1946 SCC OnLine PC 47 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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