Santosh Gurung vs State of Sikkim

Held: Judgment of the Sessions Court as affirmed by High Court is quashed and set aside – Evidence led by the prosecution is woefully short of pointing to the guilt of the appellant – The witnesses examined were not sure as to whether the appellant was last seen with the victim as they had their own doubts in that regard – The discovery effected u/s.27 of the Evidence Act was from a place that was ordinarily visible to others, thus, requiring such discovery to be considered with caution – Further, the DNA report in clear terms refers to the bone extracts being of male origin while the victim was a female – The said bones naturally did not match with the blood samples of the victim’s mother and sister – The report from the FSL also does not take the case of the prosecution any further – There is a doubt created as to whether the brown shawl claimed by the prosecution to be brought by the appellant from his mother was the same as the appellant’s mother had denied that it belonged to her – Therefore, the appellant’s statement u/s.313 of the Code of Criminal Procedure, 1973 cannot be taken as an additional link in the chain of circumstances – The chain of circumstances has not been formed on the basis of the prosecution evidence – Sessions Court failed to notice these material factors that were very much available on record – Therefore, it erred in convicting the appellant on the basis of circumstantial evidence – High Court too failed to notice all these infirmities in the case of the prosecution – Guilt of the appellant has not been established beyond reasonable doubt – A strong doubt about his involvement in the offence is created in view of the prosecution evidence – Appellant given the benefit of doubt – Acquitted. [Paras 10, 11] Circumstantial Evidence – Code of Criminal Procedure, 1973 – s.313 – When the chain of circumstances relied upon by the prosecution is not complete and it does not inspire confidence, the response of the accused recorded in his statement u/s.313 cannot be a circumstance against him, especially when other circumstantial evidence is not found to be satisfactory pointing out to his guilt alone and none other: Held: On a reading of the entire statement of appellant u/s.313, there has not been any failure on his part to explain any incriminating circumstance against him – It has to be borne in mind that only if an accused fails to offer reasonable explanation in discharge of burden placed on him in a case resting on circumstantial evidence, the same would provide an additional link in the chain of circumstances proved against him – Thus, the appellant’s silence or failure to provide any reasonable explanation can merely act as an additional link that would complete the chain – This, however, would not shift the burden of proof on an accused in a criminal trial – Thus, when it is found that the chain of circumstances relied upon by the prosecution is not complete and that the same does not inspire confidence for its acceptance, the response of the appellant recorded in his statement u/s.313 of the Code cannot be a circumstance against him, especially when other circumstantial evidence is not found to be satisfactory pointing out to the guilt of the appellant alone and none other. [Para 9]

Evidence Act, 1872 – s.27 – According to the prosecution, discovery of clothes worn by victim and other articles were made at the instance of the appellant – Reliability of a recovery effected from a place ordinarily visible to others to be examined with care:

Held: Evidence indicates that recovery of the aforesaid articles made u/s.27 was from a place that was frequented by people and the said spot could be easily seen by any person visiting the same – The reliability of a recovery effected u/s.27 from a place ordinarily visible to others should be examined with care. [Para 9] Circumstantial Evidence – ‘Last seen’ theory, not proved: Held: Considering the material on record relied upon by the prosecution, a grave doubt is created as to whether the appellant was, in fact, ‘last seen’ with the victim – There is no specific evidence on record on the basis of which it could be asserted that it was indeed the appellant who had taken the victim from the house or that he was last seen with the victim after which she was found missing. [Para 9]