Evidence: Circumstantial Evidence – Appreciation of – Allegation that the appellants along with three others in furtherance of the conspiracy, committed dacoity of a car, murdered its driver and buried the dead body in a pit, and also sold the car and shared the sale proceeds – Conviction of all of them for offences u/ss. 120(B), 147, 364, 302 r/w s.120(B)/149, 201 and 396 IPC and sentenced accordingly by the courts below – Held: Entire prosecution case rested on the circumstantial evidence – Extra judicial confession of one of the accused not duly proved by the prosecution; that last seen theory on the basis of the evidence of PW6 and PW7 cannot be applied as their statement was recorded 6 months after the alleged incident; that in view of the huge time gap, the TIP ought to have assisted the police to identify the accused, however, no TIP was held; that failure to explain as to under what circumstances the victim suffered the death by the accused u/s 313 CrPC; and that the skeletal remains were found after almost 5 months from the date of incident and it was identified by the skull-superimposition test which cannot be regarded as infallible – Thus, failure of the prosecution to establish through clinching, clear, cogent and consistent evidence, the chain of events, on the basis of which the guilt of the appellantsaccused could be established – Courts below erred in accepting the case of prosecution and convicting them for the alleged crime – Thus, the order of conviction and sentence by the courts below set aside – Penal Code, 1860 – ss.120(B), 147, 364, 302 r/w s.120(B)/149, 201 and 396 – Extra judicial confession – Last seen theory. Allowing the appeals, the Court
HELD: 1.1 Having regard to the totality of evidence adduced by the prosecution, the circumstances relied upon by the prosecution did not complete the chain to dispel the hypothesis of innocence of the appellants-accused. The prosecution having failed to establish through clinching, clear, cogent and consistent evidence, the chain of events, on the basis of which the guilt of the appellants-accused could be established, the courts below committed an error in accepting the case of prosecution and convicting them for the alleged crime. The judgements and orders of conviction and sentence passed by the trial court and confirmed by the High Court are set aside. [Para 15, 16][50-A-C]
1.2 Heavy reliance was placed by the prosecution on the extra judicial confession made by the accused no.1 through an Inland letter addressed to P.W.-19, former employer of the accused no. 1 who had received the same on 29.12.2007. It appears that the said alleged extra judicial confession of the accused no. 1 was the trigger point which directed the Investigating Officer to proceed further with the investigation after about five months of the alleged incident. Apart from the fact that the extra judicial confession is a very weak piece of evidence, the High Court in the impugned judgment refused to rely upon the same on the ground that neither the handwriting expert was examined nor any opinion of handwriting expert was proved by the prosecution. It cannot be gainsaid that when the extra judicial confession is not duly proved, or does not inspire confidence or is not corroborated by any other reliable evidence, the conviction could not be based solely on such weak piece of evidence. In the instant case, the prosecution having not examined the handwriting expert for proving the handwritings of the accused no.1 contained in the Inland letter allegedly addressed to the PW-19, nor any expert’s opinion having been obtained, the High Court had rightly discarded the said piece of evidence with regard to the alleged extra judicial confession made by the accused no.1. [Para 8][46-G-H; 47-A-C]
1.3 The next circumstance on which the prosecution had placed heavy reliance was with regard to the theory of “last seen together”, relying upon the evidence of PW-6 and PW-7. It is noteworthy that both the witnesses were the taxi drivers and were operating the taxis from the same taxi stand from where the deceased was operating his taxi, however their statements were recorded by the investigation officer almost six months after the alleged incident. [Para 9][47-D-E]
1.4 Having regard to the evidence of PW-6 and PW-7, it appears that apart from the fact that their statements were recorded by the Investigating Officer after six months of the alleged incident, their evidence before the Court does not inspire confidence. The PW-6 in the cross-examination had admitted that he had come to know about the deceased having gone missing within one week of his having seen the deceased with the accused no. 1. It is difficult to appreciate his behaviour not to disclose this crucial information for six months either to his fellow taxi drivers or to the police about he having seen the deceased lastly in the company of the accused no.1. So far as PW 7 is concerned, he had deposed that he got to know about the deceased having gone missing only when Police came for enquiry on 01.01.2008. When the Investigating Officer was time and again coming to the taxi stand where all the taxi drivers including the PW-6 and PW7 used to stand, for inquiring about the deceased’s whereabouts, and when wide publicity was made in the local newspapers, television and radio about the deceased having gone missing, it is not believable that the PW-7 came to know about the deceased having gone missing only when the police came to him to make inquiry six months after the incident in question. PW-7 had also admitted that he did not know the other four accused who accompanied the accused no.1 and the deceased on the alleged date of incident. When there was huge time gap of about more than six months between the date of the incident and the date of recording of statements of witnesses by the Investigating Officer, the Test Identification Parade would have assisted the police in identifying the accused seen by the PW-7, however no such TI Parade was held by the Investigating Officer. Therefore, identification of the accused nos. 2 to 5 at the instance of these witnesses also becomes very doubtful. Furthermore, if there is considerable time gap between the persons seeing together and the proximate time of the crime, the circumstances of last seen together, even if proved cannot clinchingly fasten the guilt of the accused. [Para 10, 11][48-A-G]
1.5 The failure of the accused, in a case based on circumstantial evidence which included “last seen together theory”, to explain u/s. 313 Cr.PC as to under what circumstances the victim suffered death, would also not be a ground to arrive at an irresistible conclusion that the accused were involved in the commission of the alleged crime. Even if the theory of “last seen together” propounded by the prosecution is accepted, then also it is difficult to draw an irresistible conclusion that the accused are guilty of the alleged offences, merely because they failed to explain as to under what circumstances the victim suffered death. [Para 12][48-G-H; 49-A-B]
1.6 The corpus when found, was in a highly- decomposed condition. Skeletal remains were found after almost 5 months from the date of the incident of the deceased having gone missing. The identification, thus, was done by getting the skull superimposition test done through the forensic expert. Since the superimposition report was not supported by any other reliable medical evidence like a DNA report or post-mortem report, it would be very risky to convict the accused believing the identification of the dead body of the victim through the super-imposition test. It is true that in the case based on circumstantial evidence, if the entire chain is duly proved by cogent evidence, the conviction could be recorded even if the corpus is not found, but when as per the case of prosecution, the dead body of the victim was discovered from the place shown by the accused, it is imperative on the part of the prosecution to prove that the dead body or the skeleton found at the instance of the accused was that of the victim and of none else. [Para 13][49-B-F]
1.7 The submission that the prosecution also failed to prove the motive of the accused for committing the alleged crime, is accepted. In the instant case, the PW-8 to whom the Ambassador car of the deceased was allegedly sold by the accused, had turned hostile and not supported the case of the prosecution that the money was received by the accused by selling the car to the PW8. [Para 14][49-F-H]
Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116; Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra (1973) 2 SCC 793; State of Goa v. Sanjay Thakran (2007) 3 SCC 755; Pattu Rajan v. State of Tamil Nadu (2019) 2 SCC (Cri) 354; Nandu Singh v. State of M.P Cri. App. No. 285 of 2022 – 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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