Penal Code, 1860:
ss. 302/34 and 394/34 – Murder and Robbery – Prosecution for – Based on circumstantial evidence – Prosecution relied on testimony of child witness; recoveries made u/s. 27 of Evidence Act; fingerprint report; FSL report; motive of committing robbery and on evidence of last seen together – Courts below convicted the accused and sentenced them to death – On appeal, held: In the facts of the case, the circumstances on which prosecution case was based, cannot be relied on – There was unexplained delay in reporting the crime – The prosecution has withheld the best evidence – In the circumstance of the case, it cannot be inferred that the appellants had committed the crime.
Criminal Jurisprudence:
Burden of proof – Held: The burden of proof squarely rests on the prosecution – The general burden never shifts – Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof – There can be no conviction on the basis of surmises and conjectures or suspicion – Evidence. Administration of criminal justice – In Criminal cases, if two views are possible: one pointing to the guilt and other to the innocence of the accused, the view favourable to the accused, should be adopted – This principle has special relevance to the cases based on circumstantial evidence.
Witness:
Child witness – Credibility – Need for corroboration – Held: The court as a prudence seeks corroboration to the testimony of child witness – There is no rule of practice that in every case evidence of child witness has to be corroborated – Section 118 of Evidence Act governs competence of a witness including child witness – Only precaution while assessing the evidence of child witness is that the witness must be a reliable one.
Evidence Act, 1872:
s. 27 – Scope of – Held: Under s. 27 it is not the discovery of every fact that is admissible, but the discovery of relevant fact alone is admissible.
Evidence:
Circumstantial evidence – Last seen theory – Reliance on – Held: The circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence – To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of dead body.
Allowing the appeals, the Court
HELD: 1. One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt. [Para 15][854-E, F] Jaharlal Das v. State of Orissa (1991) 3 SCC 27 : [1991]
2 SCR 298; Varkey Joseph v. State of Kerala 1993 Suppl
(3) SCC 745 : [1993] 3 SCR 390; Sujit Biswas v. State of Assam (2013) 12 SCC 406 : [ 2013] 3 SCR 830 – relied on.
2. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. [Para 19][856-C, D]
Kali Ram v. State of Himachal Pradesh (1973) 2 SCC
808 : [1974] 1 SCR 722 – relied on
3.1 Section 118 of the Evidence Act governs competence of the persons to testify which also includes a child witness. Evidence of the child witness and its credibility could depend upon the facts and circumstances of each case. There is no rule of practice that in every case the evidence of a child witness has to be corroborated by other evidence before a conviction can be allowed to stand but as a prudence, the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that witness must be a reliable one. [Para 21][856-E-H]
3.2 Evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law. [Para 22][857-A, B]
3.3 It is clear from the testimony of PW-8 that she is not an eyewitness to the incident. She was aged about 9 years at the time of the incident. Her evidence is fraught with inconsistencies. None of the other witnesses have identified the appellants. Therefore, heavy reliance was placed on the testimony of PW-8. She did not tell PW-1 about the appellants while disclosing about the incident for the first time. This is reflected from the FIR which has been registered against unknown persons. The testimony of PW-8 contradicts with that of PWs 1, 3 and 10. In such circumstances, it is risky to rely on the uncorroborated identification of the appellants at the instance of PW-8. [Paras 24, 25, 26, and 27][857-G, H; 858-A-D]
3.4 PW-8 has not disclosed the identity of the appellants to PW-1. That is why the FIR was registered against unknown persons. There are also inconsistencies in her evidence apart from the fact that the other children present in the house on that day were not examined. There is a substantial loss of time from when PW-8 saw the deceased and the appellants together on 16.12.2012 and when the deceased were found on 17.12.2012. In such circumstances, it is difficult to draw an inference that the appellants had committed the crime. [Para 43][862-F-H; 863-A] Panchhi and others v. State of U.P. (1998) 7 SCC 177 : [1998] 1 Suppl. SCR 40; State of U.P. v. Ashok Dixit and another (2000) 3 SCC 70 : [2000] 1 SCR 855 ; State of Rajasthan v. Om Prakash (2002) 5 SCC 745 : [2002] 3 SCR 753 ; Alagupandi alias Alagupandian v. State of Tamil Nadu (2012) 10 SCC 451 : [2012]
4 SCR 342 – relied on.
4. There was an unexplained delay in reporting the crime. PW-8 in her deposition has stated that when she woke up in the morning, her room was locked from outside. When she shouted from inside, ‘A’ opened the door. This version is further corroborated by PW-10. Though, ‘A’ had opened the door at about 3 a.m., it is unexplained why PW-8 did not inform anyone till 4 pm and the same was also unreported by PW-10, even though the police station was at a distance of some six kilometers. This also raises question about veracity of the statement of PW-8. [Para 28][858-E, F]
5.1 Under Section 27 of the Indian Evidence Act, it is not the discovery of every fact that is admissible but the discovery of relevant fact is alone admissible. Relevancy is nothing but the connection or the link between the facts discovered with the crime. The recovery of the motorcycle is sought to be relied upon as a circumstance against the appellants. There is nothing on record to show that the motorcycle recovered at the instance of appellant No.1, belongs to him. PW-13, IO, in his crossexamination admits that he does not know whether the appellant No.1 is the owner of the motorcycle. He further admits that no attempts were made by him to enquire about the owner of the vehicle. [Para 29][858-G, H; 859-A, B]
5.2 PW-2 was the witness to the seizure of the motorcycle. According to him, the motorcycle was red in colour. However, as per the seizure memo, the recovered motorcycle was black in colour. This makes the recovery of the motorcycle unreliable. Testimony of PWs 4 and 5 is also unreliable since it contradicts that of PW-10. PW 10 does not mention anything about the motorcycle. PWs 4 and 5 contradict each other. It is relevant to state that the police recorded the statement of PWs 4 and 5 after delay of over two months. [Paras 30 and 31][859-B, C, E]
5.3 The silver-patti recovered at the instance of the appellants, is alleged to have been that of one of the deceased. However, no witness identifies the silver-patti as belonging to any of the deceased. PW-2 states that “the type of anklet that was seized” is easily available in the market. Hence, in the absence of any identification of the seized anklet, no reliance can be placed on its recovery. The evidence of PW-2, who is the witness to the seizure memo, is contrary to the memos brought on record. [Para 32][859-F, G]
5.4 The cash has not been traced back to the deceased as the box from which articles were allegedly stolen has not been recovered or seen by any witness. Even in the FIR, there is no averment of any article or money being stolen or lost. Therefore, when the money allegedly recovered is being sought to be relied upon as stolen from the house of the deceased, the same is unreliable when there is nothing on record to support the claim of theft or robbery from the scene of crime. [Para 33][860-A, B]
5.5 The shirt of appellant No. 2 recovered from him in pursuance of his statement under Section 27 of the Evidence Act is allegedly matched with the small broken button found at the scene of crime. This has been relied upon by the courts below as another circumstance to corroborate the presence of the appellants at the scene of crime. However, there is nothing on record to show that the shirt is unique and cannot be matched with the shirt of any other person. PW-13 has admitted in his testimony that shirts of the same kind are easily available in the market. In such circumstances, it cannot be conclusively proved that the shirts are in any way unique to the ‘appellants’ shirt to the exclusion of everyone else. Therefore, the reliance placed with analysis of the shirt in the absence of any unique make thereof is improper. [Para 37][861-A-C]
6. PW-9 has been relied on for corroborating the testimony of the child witness. to show the presence of the appellants at the house. PW 9 had deposed only on the basis of a telephone call. He does not know the name of the accused. He has not seen the appellants-accused coming into the house. Therefore, his evidence is not sufficient to place the appellants at the scene of crime. [Para 35][860-E]
7.1 The best evidence which would have thrown light on the controversy in question, has been withheld. ‘A’ has not been examined by the prosecution and no reasons have been assigned to explain this anomaly. Considering the conflicting statements of the witnesses examined by the prosecution, ‘A’ would have been in a position to have seen the appellants at the house around
3 A.M. She would have been the first person to have seen the deceased persons and deposed about the circumstances after the incident. It is also relevant that there were other three children present in the house at the time of the incident. No attempts have been made to examine them as well. [Para 34][860-C, D]
7.2 The expert, who examined the articles at the place of occurrence and found some finger prints, has not been examined. The person who took the sample finger prints has not been examined. There is no explanation about why the articles were just left at the scene after developing the finger prints and why they were not seized and sent for analysis on the same day. Further, no prints have been found on the doors or the steel almirah to substantiate the robbery. The examination of expert is crucial especially if reliance is placed on the finger print report to suspect the guilt of the appellant. PW-12, Panch witness to the seizure of bottles states that the bottle was “lying near the door of the courtyard was seized.” This makes the process of the lifting the print suspicious. [Para 36][860-F-H]
8. The forensic evidence against the appellants to prove their presence at the scene of crime is insufficient. The findings of the hair analysis are also inconclusive. The report only concluded the specimen to the human hair. The same is not sufficient to substantiate the presence of the appellants. [Para 38][861-C, D]
9. The prosecution has alleged robbery as motive for the commission of the offence. It is sought to be sustained by the recovery of some cash and a pair of silver patti that has not been identified by any witness. The site plan panchanama shows that gold ornaments, pearl necklace, silver ornaments, etc. were left behind on the person of the deceased. It is not explained as to why appellants would intend to commit robbery but leave expensive ornaments behind. This has unsubstantiated the entire motive for the commission of the offence, as alleged by the prosecution. [Para 39][861-D-F]
10. The prosecution has relied upon the evidence of PW-8 to show that the accused and victims were last seen together. The circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence. If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen along with the accused at or near about the place of occurrence, the needle of suspicion would certainly point to the accused being the culprits and this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence does not inspire the confidence or is not trust worthy, there can be no conviction. To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of dead body. [Para 40][861-G, H; 862-A]
Arjun Marik & Ors. v. State of Bihar 1994 Supp (2) SCC 372 : [1994] 2 SCR 265
Kanhaiya Lal v. State of Rajasthan (2014) 4 SCC,
715 : [2014] 3 SCR744 – relied on.
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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