Devi Lal vs State of Rajasthan

2. Neither in the initial complaint on which the missing report was lodged nor at the stage after inquiry, when the FIR came to be registered (Exh. P-73), the name of appellant-accused ‘D’ surfaced. Even in the statement of PW-5, while recording statement under Section 164 CrPC, (Exh. D-5), no such reference was made of any conspiracy having been hatched by accused ‘D’. In the testimony of PW-5 and PW-10, it was deposed that accused ‘D’ came to the house on 5th February 1999 and wanted to purchase the half portion of Bada from the deceased for a sum of Rs. 10,000/-. ‘D’ threatened the deceased to sell his Bada which he refused. [Para 7][173-B-D]

3. As regards appellant-accused ‘B’, it was deposed by PW5 and PW-10 that he was known to their family as accused ‘B’ used to take money from the deceased and used to return the same. Deceased lended Rs. 50,000/- to accused ‘B’, which had been reduced into writing in the ledger book. When the deceased went to take money from ‘B’, he refused to return the same and started quarrelling. The deceased had informed this to PW-5 and PW-10. The money as demanded by the deceased led to suspicion of the commission of crime. But both the witnesses i.e. PW- 5 and PW-10, in their cross-examination, stated that they did not know when accused ‘B’ had borrowed money from the deceased. [Para 8][173-D-F]

4. It is true that an extra judicial confession is used against its maker but as a matter of caution, advisable for the Court to look for a corroboration with the other evidence on record. Extra judicial confession is, on the face of it, a weak evidence and the Court is reluctant, in the absence of a chain of cogent circumstances, to rely on it, for the purpose of recording a conviction. In the instant case, there are no additional cogent circumstances on record to rely on it. At the same time PW-3, while recording his statement under Section 164 CrPC, has not made such statement of extra judicial confession(Exh. D-5) made by accused ‘B’. In addition, there are no other circumstances on record to support it. [Para 9][173-G-H; 174-A-B] Gopal Sah v. State of Bihar (2008) 17 SCC 128 – relied on.

5.1 While scrutinising the circumstantial evidence, a Court has to evaluate it to ensure that the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straight jacket formula which can be laid down for the purpose. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused. In the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. [Paras 15, 17][177-C-E, G-H]

Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; Sujit Biswas v. State of Assam (2013) 12 SCC 406 : [2013] 3 SCR 830; Raja alias Rajinder v. State of Haryana (2015) 11 SCC

43 : [2015] 3 SCR 947 – relied on.

5.2 On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of “may be true” to the plane of “must be true” as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof. The appellants are thus entitled to the benefit of doubt. [Paras 16, 18][177-E-G; 178-B]