Penal Code,1860 – ss.302,364,392,394,201 and 34 – Evidence Act, 1872 – ss.27,101,106 and 165 – The case of prosecution was based on circumstantial evidence i.e. the evidence of ‘last seen’ and the ‘discoveries’ made from the information given by the appellant – Appellant(accused) and one co-accused convicted by Trial Court for the murder of the deceased – Two separate appeals were filed before the High Court – During the pendency of the appeal, the co-accused passed away, thus, his appeal stood abated – The appeal of the present appellant was dismissed, thus conviction and sentence of the trial court was upheld by the High Court – On appeal, held: In the present case, when there is no close proximity between circumstances of last seen together and the approximate time of death, the evidence of last seen becomes weak, such circumstances by itself cannot form the basis of guilt – Further, the evidence of recovery had already been disclosed by the co-accused by the time the present appellant was arrested and thus the relevant facts were already in the knowledge of the police – Thus, disclosure and discovery made thereafter cannot be read against the present appellant – There cannot be a “discovery” of an already discovered fact – As far as the recovery of ‘Parna’ and watch of the deceased from the disclosure statement made by appellant, this evidence in itself is not sufficient to fix guilt on the appellant – Prosecution failed to establish important links in this case – Rigor mortis was present in the body after 90 days remained unexplained – Prosecution did not explain – Defence did not question – Prosecution was not able to prove its case beyond reasonable doubt – Judgment of trial court and High court set aside. Evidence Act, 1872 – s. 165 – Judge’s power to put questions or order production – Held: The duty of the presiding judge of a criminal trial is not to watch the proceedings as a spectator or a recording machine but he has to participate in the trial ‘by envincing intelligent active interest by putting questions to witnesses in order to ascertain truth.’
Allowing the appeal, the Court
HELD:1. The recovery of the stolen tractor, the place where the murder was committed and the place where body was thrown in the canal were facts which were already in the knowledge of the police, since it is the case of the prosecution that the co-accused, who was arrested by the police 2 days preceding the arrest of the present appellant, had earlier led to the same discoveries on 12th, 13th & 14th of May, 2000. So, this disclosure and discovery made thereafter cannot be read against the present appellant. There cannot be a “discovery” of an already discovered fact! What remains is the discovery of currency notes, wrist watch, ‘Parna’ and hair. The forensic report of hair only says that it belongs to ‘human’. The currency notes cannot be really identified with the deceased. What remains is the watch and the ‘Parna’, which has been identified with the deceased. The second is the evidence of “last seen”. This is in the form of PW-10 who is the neighbour of the complainant and who had seen the appellant along with co-accused with the deceased on 08.05.2000 at about
7.30 PM in the evening. [Para 8][229-F-H; 230-A-B]
2. The prosecution has failed to establish important links in this case, which is so vital in a case of circumstantial evidence. Rigor mortis present in the body after 90 hours is unusual, though possible under certain circumstances. It was the duty of the prosecution to explain it. The defense too failed to question it and the Court remained silent. [Para 11][233-D-E]
3. The evidence of last seen becomes an extremely important piece of evidence in a case of circumstantial evidence, particularly when there is a close proximity of time between when the accused was last seen with the deceased and the discovery of the body of the deceased, or in this case the time of the death of the deceased. This does not mean that in cases where there is a long gap between the time of last seen and the death of the deceased the last seen evidence loses its value. It would not, but then a very heavy burden is placed upon the prosecution to prove that during this period of last seen and discovery of the body of the deceased or the time of the death of the deceased, no other person but the accused could have had an access to the deceased. The circumstances of last seen together in the present case by itself cannot form the basis of guilt .The circumstances of last seen together does not by itself lead to an irrevocable conclusion that it is the accused who had committed the crime. The prosecution must come out with something more to establish this connectivity with the accused and the crime committed. Particularly, in the present case when there is no close proximity between circumstances of last seen together and the approximate time of death, the evidence of last seen becomes weak. [Para 12][233-E-G; 234-A-B]
4. As per the post-mortem which was conducted on 12.05.2000 at 4:15 P.M, the death was 48 hours prior to the post mortem, which means it was before 4:00 P.M. on 10.05.2000. Even assuming that the death has taken place, a day earlier i.e. 09.05.2000, still there is a long gap between the last seen which is at 7:00 pm on 08.05.2000 and the morning of 09.05.2000. In this case, even if this court take the time between the last seen and the approximate time of death as per the post-mortem, which would go beyond 48 hours preceding the time of post-mortem and the time of death can be stretched to the morning of May 9, 2000, which still begs an explanation from the prosecution as to the time gap, as the deceased was last seen with the two accused on 08.05.2000 at 7:00 P.M. [Para 12][234-E-F, G; 235-A]
5. The burden of proof is always with the prosecution. It is the prosecution which has to prove its case beyond a reasonable doubt. Section 106 of the Act does not alter that position. It only places burden for disclosure of a fact on the establishment of certain circumstances. This Court have no reason to doubt the testimony of PW-10, the sole witness of last seen. In his statement under Section 313 of the Code of Criminal Procedure, when the appellant was questioned about being in the company of the deceased on 08.05.2000 along with co-accused, no explanation was given by the appellant about his whereabouts. It is for this reason that it has been held that the accused has not been able to discharge his burden under Section 106 of the Act and therefore this has to be read as an additional link in the chain of evidence against the appellant. However, Section 106 of the Act would not even come to play here under the facts and circumstances of the present case. What has to be kept in mind is that Section 106 of the Act, only comes into play when the other facts have been established by the prosecution. In this case when the evidence of last seen itself is on a weak footing, considering the long gap of time between last seen by PW-10 and the time of death of the deceased, Section 106 of the Act would not be applicable under the peculiar facts and the circumstances of the case. [Paras 12, 13][235-H; 236-A-D]
6. As far as the recovery is concerned, the recovery is again weak. The so-called alleged place of crime and the recovery of tractor or the place where the tractor was abandoned had already been disclosed by the co-accused by the time the present appellant was arrested. Therefore, making a disclosure about the place of occurrence or the place where the tractor was abandoned is of no consequence. As far as the recovery of watch, currency notes of Rs. 250/-, hair and ‘Parna’ from the residence of the appellant are concerned, the currency notes and hair have not been identified with the deceased. In a criminal trial, the prosecution has to prove its case beyond reasonable doubt. This heavy burden has to be discharged by the prosecution. It becomes even more difficult in a case of circumstantial evidence. In the present case, the nature of circumstantial evidence is weak. In order to establish a charge of guilt on the accused, the chain of evidence must be completed and the chain must point out to one and only one conclusion, which is that it is only the accused who have committed the crime and none else. This Court was afraid the prosecution has not been able to discharge this burden. [Para 14][236-E-H]
7. In the present case the prosecution has not been able to prove its case beyond reasonable doubt. The evidence of last seen, only leads upto a point and no further. It fails to link it further to make a complete chain. All this court have here is the evidence of last seen, which as this court have seen looses much of its weight under the circumstances of the case, due to the long duration of time between last seen and the possible time of death. What this court can call as discovery here under Section 27 of the Act, is the discovery of ‘Parna’ and watch of the deceased. This evidence in itself is not sufficient to fix guilt on the appellant. In a case where there is no direct eye witness to the crime, the prosecution has to build its case on the circumstantial evidence. It is a very heavy burden cast on the prosecution. The chain of circumstances collected by the prosecution must complete the chain, which should point to only one conclusion which is that it is the accused who had committed the crime, and none else. Each evidence which completes the chain of evidences must stand on firm grounds. In the considered opinion of this Court, the evidence placed by the prosecution in this case does not pass muster the standard required in a case of circumstantial evidence. [Para 15][237-E-H; 238-A]
Ram Chander v. State of Haryana 1981 AIR 1036 : [1981] 3 SCR 12; Anjan Kumar Sarma & Ors. v. State of Assam (2017) 14 SCC 359; Malleshappa v. State of Karnataka (2007) 13 SCC 399 : [2007] 10 SCR 153; Nizam & Anr. v. State of Rajasthan (2016) 1 SCC 550 : [2015] 10 SCR 786; State of Goa v. Sanjay Thakran (2007) 3 SCC 755 : [2007] 3 SCR 507; Ajit Singh v. State of Maharashtra (2011) 14 SCC 401 : [2011] 13 SCR 1000 - 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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