Penal Code,1860: ss. 302 r/w 120B and 364 – Murder and kidnapping – Kidnapping and murder of two minor children – Conviction of the main accused and other co-accused including the mother of the children and imposed death sentence for offence punishable u/s. 302 r/w 120B and ten years rigorous imprisonment for offence punishable u/s. 364 – However, the High Court acquitted the co-accused and sentenced the main accused to rigorous imprisonment for 20 years – On appeal, held – When conviction is based solely on circumstantial evidence, it is imperative that the chain of circumstances is complete, cogent and coherent in order to sustain a conviction – Circumstantial evidence against the main accused does not conclusively establish his guilt in committing the murder of the children – Motive, last seen theory, the arrest of the accused, the recovery of material objects and the call details produced, do not conclusively complete the chain of evidence – Inconsistencies and contractions are found in the evidences given against the main accused – Fact that he committed the murder of the children not established – Thus, the conviction of main accused solely on circumstantial evidence not possible and is set aside – Evidence.
Evidence Act, 1872: s. 65B(4) – Certification of electronic evidence – Requirement of – Held: Oral Evidence in place of such certificate cannot suffice as s.65B(4) is a mandatory requirement of the Law.
Evidence: Circumstantial evidence – Conviction on basis of – When – Held: Inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused – Circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
Disposing of the appeals, the Court
HELD : 1.1 In order to sustain a conviction, it is imperative that the chain of circumstances is complete, cogent and coherent. Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. [Para 10][598-E, F-G]
1.2 The circumstantial evidence against the appellant-A2 does not conclusively establish the guilt of A2 in committing the murder of the deceased children. The last seen theory, the arrest of the accused, the recovery of material objects and the call details produced, do not conclusively complete the chain of evidence and do not establish the fact that A2 committed the murder of the children of PW5. The submission of the respondent that the call details produced relating to the phone used by A1 and A2 have established that they shared an intimate relationship and that this relationship became the root cause of offence is also cannot be accepted. [Para 11][599-D-E]
1.3 When a conviction is based solely on circumstantial evidence, such evidence and the chain of circumstances must be conclusive enough to sustain a conviction. In the instant case, it was submitted that conviction of A2 could not just be upheld solely on the ground that the prosecution has established a motive via the call records. However, it is held that not only is such conviction not possible on the present scattered and incoherent pieces of evidence, but that the prosecution has not even established the motive of the crime beyond reasonable doubt. In the instant case, the fact that A1 and A2 talked on call, only proves that they shared a close relationship. However, what these records do not prove, is that the murder was somehow in furtherance of this alleged proximity between A1 and A2. The High Court’s inference in this regard was a mere dubious conclusion that was drawn in absence of any cogent or concrete evidence. The High Court itself based its inferences on mere probability. Moreover, the prosecution also failed to establish by evidence the supposed objective of these murders and what was it that was sought to be achieved by such an act. The court observed that the act of A2 was inspired by the desire to “exclusively possess” A1. However, it seems improbable that A2 would murder the minor children of PW5 and A1 to increase or protect his intimacy to A1 rather than eliminate the husband of A1 himself. Hence, the inference drawn by the High Court from the information of call details presented before them suffers from infirmity and cannot be upheld, especially in light of the fact that there is admittedly no direct evidence to establish such alleged intimacy and that the entire conviction of A2 is based on mere circumstantial evidence. A conviction which is based upon a probability of infatuation of A2, which in turn is based on an alleged intimacy between him and A1, which has admittedly not been established by any direct evidence cannot be upheld. [Para 13][600-C-H]
1.4 The High Court erred in holding that the second limb of the prosecution’s Last Seen Theory stands duly established against A2 and A3 through the evidence of PW6 and PW7. The High Court erred in not appreciating the numerous contradictions and inconsistencies that the evidence of PW6 and PW7 entail. These contradictions and inconsistencies assume capital important in light of the fact that the entire conviction of A2 is based merely on circumstantial evidence, and they also render the evidence non-conclusive to establish the guilt of A2. [Para 15][601-C-D, E-F]
1.5 In a case where the conviction is solely based on circumstantial evidence, such inconsistencies in the testimonies of the important witnesses cannot be ignored to uphold the conviction of A2, especially in light of the fact that the High Court has already erred in extrapolating the facts to infer a dubious conclusion regarding the existence of a motive that is rooted in conjectures and probabilities. [Para 17][602-E]
1.6 With respect to the extra judicial confessions, suffice it to say that the attempt of the respondent to rely on that is untenable since the High Court has taken note of the inconsistences in the evidence of PW13 and rightly rejected his evidence “in toto”. The judgement of the High Court to the extent that it rejects the testimony of PW13 and finds the theory of extra judicial confession of A2 and A3 to be unnatural is upheld. The last piece of evidence against A2 remains the alleged recovery of the school bag at the instance of the disclosure statement given by A2. However, similar to the other evidence against A2, this also suffers from the same inconsistencies and incoherence that makes it difficult for the such evidence to support the conviction of A2. The contradictions and inconsistencies in the testimonies of PW6, PW5, PW9 and PW12 make the story of the prosecution weak and non-conclusive to hold and establish the guilt of A2, especially in light of the fact that there is virtually no direct evidence to link A2 to the commission of the offence. [Paras 18, 19][602-F-H; 603-G]
1.7 The electronic evidence produced before the High Court should have been in accordance with the statute and should have complied with the certification requirement, for it to be admissible in the court of law. Oral evidence in the place of such certificate, as is the case in the instant matter, cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. [Para 21][605-C-D]
Anvar P.V. v. P. K. Basheer & Ors. (2014) 10 SCC 473 : [2014] 11 SCR 399; Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801; Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC
1 – referred to.
1.8 The tripod stand of motive, last seen theory and recovery, that supported the conviction of A2 according to the High Court, is found to be non-conclusive and the evidence supporting the conviction of A2 is marred with inconsistencies and contradictions, thereby making it impossible to sustain a conviction solely on such circumstantial evidence. Thus, the impugned order of the High Court is set aside to the extent that it convicts A2 under section 302 and 364 IPC. Hence, the conviction of A2 is set aside. However, the acquittal of A1 and A3 by the impugned order is upheld. [Paras 22, 23][605-D-F]
Hukam Singh v. State of Rajasthan AIR 1977 SC 1063; Eradu and Ors. v. State of Hyderabad AIR 1956 SC 316; Earabhadrappa @ Krishnappa v. State of
Karnataka AIR 1983 SC 446 : [1983] 2 SCR 552; State of U.P. v. Sukhbasi and Ors. AIR 1985 SC 1224; Balwinder Singh @ Dalbir Singh v. State of Punjab AIR 1987 SC 350; Ashok Kumar Chatterjee v. State of M.P. AIR 1989 SC 1890; Bhagat Ram v. State of Punjab AIR 1954 SC 621; C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193 : [1996] 3 Suppl. SCR 479; Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 : [2014] 11 SCR 399; Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801; Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal (2020) 7 SCC
1 – 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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