Penal Code, 1860 – s.302 r/w. s.34, ss.364 and 379 – Conviction based on circumstantial evidence – FIR registered by PW-8 stating that ‘J’ employed as driver in his travel agency along with another person took his van and did not return for two days – Next day a body was found in a well which was identified to be of ‘J’ – Prosecution case was that A-1 confessed about committing the crime along with appellants (A-2 and A-3) stating that they abducted driver and his friend, and caused death by strangulating them and thereafter drowned their bodies in water streams – A-1 also took the investigating officer to the place where body of ‘J’s friend was found in a gunny bag – Further, PW-11 had last seen the appellants- accused with the deceased – Trial Court convicted all the accused persons – Appeals dismissed by the High Court – On appeal, held: There was no witness of the occurrence – The pivotal evidence was the testimony of PW-11 who stated to have last seen the appellants-accused with the deceased – However, this evidence alone would not discharge the burden of establishing the guilt of accused beyond reasonable doubt and required corroboration – Material objects recovered did not have any bearing on the case itself and no evidence was adduced or produced by the prosecution as to how these objects had a bearing on the case – In fact, none of the witnesses had identified the stated belongings of deceased- ‘J’ – Further, confession of A-1 given to the police officer while in police custody would be hit by s.26 of the Evidence Act – Hence, in absence of any other material evidence against the appellants-accused, case for interference with order of conviction is made out – Evidence Act, 1872 – ss.26 and 27.
Criminal Law: Circumstantial evidence – Last seen theory – Presumption of guilt – Burden to rebut on accused. Allowing the appeals, the Court
HELD: 1. The testimony of PW-11 is established and inspires full confidence, it is well established that it is the accused who were last seen with the deceased specially in the circumstances when there is nothing on record to show that they parted from the accused and since then no activity of the deceased can be traced and their dead bodies were recovered later on. It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone can’t discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration. [Para 18] [758-D-F]
2. Section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance is limited as relates distinctly to the fact thereby discovered. In the case at hand, the Camera which was recovered at the instance of Accused No. 3 was not identified by the father as well as the mother of the deceased. In fact, the prosecution is unable to prove that the said camera actually belongs to the deceased. Though the mobile phone is recovered from A-1, but there is no evidence on record establishing the fact that the cell phone belongs to the deceased or to PW-8 as the same was not purchased in their name. Further, the prosecution failed to examine the person on whose name the cell phone was purchased to show that it originally belongs to PW-8 to prove the theory of PW-8 that he had purchased and given it to the deceased. Further, the material objects, viz., phone and Motor Bike do not have any bearing on the case itself. The phone was recovered from Accused No. 1 and it is not the case that it was used for the commission of crime and similarly the motor cycle so recovered was of the father of Accused No. 3 and no evidence has been adduced or produced by the prosecution as to how these objects have a bearing on the case. In fact, none of the witnesses have identified the camera or stated the belongings of deceased driver. The said statements are inadmissible in spite of the mandate contained in Section 27 for the simple reason that it cannot be stated to have resulted in the discovery of some new fact. The material objects which the police is claimed to have recovered from the accused may well have been planted by the police. Hence, in the absence of any connecting link between the crime and the things recovered, there recovery on the behest of accused will not have any material bearing on the facts of the case. [Para 22] [760-H; 761-A-E]
3. The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. When the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubt. [Para 23] [761-F-G]
4. The courts below have erred in relying that part of the statement which can be termed as confession which were given to the police officer while they were in custody and it will be hit by Section 26 of the Indian Evidence Act,1872 and only that part of the statement which led to the discovery of various materials would be permissible. Hence, in the absence of any other material evidence against the appellants-accused, they cannot be convicted solely on the basis of evidence of last seen together with the deceased. [Para 24] [762-D]
Padala Veera Reddy v. State of Andhra Pradesh and Others (1989) 2 Suppl. SCC 706 ; Rafikul Alam & Others v. The State of West Bengal 2008 Crl. L.J. 2005 ; Selvi and Others v. State of Karnataka (2010) 7 SCC 263 : [2010] 5 SCR 381 ; Madhu v. State of Kerala (2012) 2 SCC 399 : [2012] 2 SCR 986 – 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.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.