Evidence – Circumstantial evidence – Conviction based upon – When not justified:
Held: Categoric fi nding of the courts below on appreciation of the oral testimonies of the prosecution witnesses is that none of the witnesses had spoken of having lastly seen the deceased in the company of the accused alive and together – Thus, there cannot be any reason to hold that ‘last seen evidence’ is available in the instant case as a link in the chain of circumstantial evidence against the appellants– Despite such clear finding, the trial court presumed the presence of the deceased with the appellants at the fodder room near Katvawala passage just prior to his death, relying on certain other circumstances – Trial Court as also the High Court appreciated the evidence in an utterly perverse manner – In view of the findings on each of the links in the chain of circumstances, no conviction can be entered against the appellants u/ss.201, 300 and 302 r/w s.34, IPC – They are individually or even collectively not sufficient to connect the appellants with the crime – Impugned judgment of High Court confi rming the judgment of the trial Court set aside – Appellants acquitted granting benefit of doubt. [Paras 12, 13 and 42] Evidence – Circumstantial evidence – Last seen theory – Presumption as to the presence of the deceased along with the accused just prior to the occurrence, in absence of positive ocular evidence of prosecution witnesses of having seen the deceased in the company of the accused together and alive at a time proximate to the occurrence – Impermissibility:
Held: ‘Last seen’ as a link in the chain of circumstantial evidence, would suggest existence of oral testimony of at least one witness to establish that the deceased was last seen in the company of the accused – Application of the theory of ‘last seen’ in the absence of any other positive evidence to conclude that the accused and the deceased were last seen together would be hazardous – Its indirect application is also impermissible – In the present case, evidence of PW-10 is not free from suspicion and at any rate, it cannot be taken as a positive evidence sufficient to justify the application of the theory of ‘last seen’ or to presume the presence of deceased in the company of the appellants in the evening of 25.06.1999, describing it as ‘last seen’ evidence. [Paras 8, 21 and 25]
Evidence – Motive – Not proved/held to be insufficient – Evidence of witnesses to be scrutinized with great care and caution: Held: Motive is something which makes a man to do any particular act and it must, in all probability, exist behind every voluntary act – When the prosecution comes out with a motive and the motive is either not proved or held to be insufficient, the evidence of witnesses of the said fact has to be scrutinized with great care and caution. [Paras 31 and 33] Evidence – Circumstantial evidence – Motive – When not proved: Held: Initially, PW-9 (brother of the deceased) suggested an incident that occurred on 29.05.1999 as motive, when his father and deceased brother were assaulted but, the deceased had managed to escape – But the appellants were not named as assailants in connection with that incident – It is not understood how that could be a motive – Appellants are also not named among the suspected abductors/kidnappers – The motive thereafter projected by the prosecution against the appellants was that they found their sister (‘P’) in a compromising position with deceased in the evening of 25.06.1999 in the fodder room near Katvawala passage – Though, none of the witnesses had spoken of even seeing sister of the appellants and the deceased either inside the fodder room near Katvawala passage at the relevant point of time or even at any time proximate to the occurrence near the aforesaid place – Further, no evidence was adduced on the side of the prosecution to establish that ‘P’ was actually the sister of the appellants or at least one of them – Thus, they are not sibship and then, the question is what is the proximity of the blood between them – No evidence was adduced by the prosecution in that regard and on that aspect also prosecution relies only on the extra judicial confession made by the appellants before PW-7 which does not inspire confidence – Prosecution had withheld their best evidence – In respect of the questions whether ‘P’ is the sister of the appellants; whether she was in love with the deceased; if so, whether she promised the deceased to meet at the fodder room near Katvawala passage in the evening of 25.06.1999; whether they had actually met at the said place near about that time; whether the appellants reached there and snatched her chunni and strangulated the deceased using her chunni, the best witness ought to have been ‘P’ herself – But, she was not examined by the prosecution. [Paras 30 and 33] Evidence – Circumstantial evidence – Motive – Significance: Held: In a case of circumstantial evidence, motive does have significance, but that is no reason to say that in the absence of motive, conviction, based on circumstantial evidence, cannot be made. [Para 33] Penal Code, 1860 – s.364 r/w s.34 – Charge under, framed against the appellants:
Held: The phrase ‘common intention’ used in s.34 implies a prearranged plan and acting in concert to the plan – To establish an offence u/s.364 it must be proved that the person charged with the offence had the intention at the time of kidnapping or abduction to murder or to dispose of as to be put in danger of being murdered – Case of the prosecution, going by the first charge, was that the appellants in furtherance of their common intention kidnapped the deceased to commit his murder – Though a specifi c charge was framed u/s.364 r/w s.34, the prosecution had not chosen to adduce evidence and virtually abandoned such a case – Relying on the evidence of PWs 7 to 10, a totally different case was developed and attempted to be proved by relying on evidence of last seen, recovery of weapon viz., chunni, motive and extra judicial confession – A case carrying accusation of a pre-arranged plan based on common intention to kidnap/abduct for committing murder was turned into a case of commission of murder based on motive occurred at the spur of the moment upon the alleged sight of the appellants’ sister with deceased in a compromising position – Prosecution had not cared to establish the charge framed against the appellants u/s.364/34 and despite that it went on to put forth another case. [Paras 15, 16 and 18]
Evidence Act, 1872 – s.60 – Applicability of – Evidence of PW-10, if admissible:
Held: s.60 postulates that oral evidence must be direct in all cases– However, it is inadmissible only when it proposes to establish the truth of the statement but not the factum of the statement by other persons – There is a fi ne distinction between proving the factum of a statement by other persons and proving the truth of such statement – In the present case, PW-10 had only spoken about the factum of deceased’s divulgation that he is in love with ‘P’ and also about her promise to meet him in the evening of 25.06.1999 at the fodder room near Katvawala passage – That apart, the fact is that though he had deposed that he had seen the appellants at about 08.30 pm he did not depose, even vaguely, that he had seen either deceased and ‘P’ together at any time proximate to the occurrence – Thus, applying s.60, even if it is taken that evidence of PW-10 is admissible to the extent that deceased revealed about his love with ‘P’ and her promise to meet deceased in the evening of 25.06.1999 to PW-10, the evidence of PW-10 could not be taken as admissible as relates the truth of the said statement. [Paras 23 and 24] Evidence – Extra judicial confession, allegedly made by the appellants to PW-7 – Admissibility:
Held: Extra judicial confession cannot always be taken as a weak piece of evidence and the question whether it is worthy to be taken as admissible and to form basis for conviction in a criminal trial would depend upon veracity of the witness to whom the confession was allegedly made – In the present case, taking into account all the aspects revealed from the records, which were not at all considered by the trial Court and the High Court, evidence of PW-7 on extra judicial confession could not inspire confidence. [Paras 34 and 40]
Evidence – Recovery of weapon viz., the chunni used for strangulation:
Held: The place of recovery was an open place and is accessible to all – Non-examination of the independent witness along with the deposition of PW-6 and PW-14 would make the recovery of chunni and purse inconsequential. [Para 41]
LIST OF CITATIONS AND OTHER REFERENCES
State of UP v. Satish (2005) 3 SCC 114 : [2005] 1 SCR 1132; Badruddin v. State of UP (1998) 7 SCC 300; J.D. Jain v. The Manager of SBI (1982) 1 SCC 143 : [1982] 2 SCR 227; State of U.P. v. Babu Ram AIR 2000 SC 1735 : [2000] 2 SCR 1201; Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors. (2006) 3 SCC 374 : [2006] 2 SCR 1081; Chattar Singh and Anr. v. State of Haryana (2008) 14 SCC 667 : [2008] 12 SCR 765; Balwinder Singh v. State of Punjab 1995 Supp (4) SCC 259 : [1995] 5 Suppl. SCR 10; Ajay Singh v. State of Maharashtra (2007) 12 SCC 341 : [2007] 7 SCR
983 – relied on.
Hatti Singh v. State of Haryana (2007) 12 SCC 471 : [2007] 5 SCR
221 – held inapplicable.
Gopal & Ors. v. State of Tamil Nadu (1986) 2 SCC 93 : [1986] 1 SCR 199; Chattar Singh & Anr. v. State of Haryana (2008) 14 SCC 667 : [2008]
12 SCR 765; Jagdish v. State of Madhya Pradesh (2009) 9 SCC 495 : [2009]
14 SCR 727 – referred to.
State v. Sushil Sharma 2007 (94) DRJ 777 (DB) – approved. OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
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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