Penal Code, 1860 – ss.120-B, 302, 363, 364, 364-A, 365 – Case based on circumstantial evidence – Approach of the Courts – Case of the prosecution that on 4th Feb. 2001, as per routine, the complainant-PW-1 left for work at 8:00 am and returned at 2:00 pm for lunch, when he noticed that his son aged about 9 years was missing – PW-1 pointed out that initially appellant-accused no.1 joined the search but thereafter suddenly vanished – Upon returning, allegedly, he made an extra-judicial confession confessing that he kidnapped PW-1’s son at the behest of accused no.5, who had animosity with PW-1 and that he made PW-1’s son sit on his bicycle and took him to the railway station, where he was handed over to appellant-accused nos.2 & 3 – Trial court acquitted the appellants – Set aside by the High Court – On appeal, held: There is no eye witness of the incident and the entire case is based on circumstantial evidence and theory of last seen together – In a case based on circumstantial evidence, the Courts ought to have conscientious approach and conviction ought to be recorded only in case all the links of the chain are complete pointing to the guilt of the accused– In the present case, evidence of PW-28 and PW-29, residing near the residence of the PW-1, who were crucial to the case of prosecution to establish that deceased was last seen with appellant no.-1, is riddled with unexplained contradictions – Thus, the theory of last seen is rejected – Their evidence also becomes shaky as they knew that PW-1’s son was missing since 4thFeb.2001 but did not inform PW-1 or the police about the presence and conduct of the appellant no.1, despite being aware of the frantic search for PW-1’s son post his disappearance – High Court failed to take into account that there was huge time gap between the point when the accused and deceased were last seen together and the time of death – Further, PW-1 did not testify that he identified that the dead body found was that of his son – Doubt is also created by the post-mortem report which records that minimum age of the deceased was around
16 years while, PW-1’s son was 9 years of age –There are also noticeable contradictions about the circumstances in which the extra-judicial confession of the appellant no.1 was made –Evidence adduced against the appellants do not form the complete chain connecting them with the crime – Prosecution failed to prove the guilt beyond doubt – Conviction and sentences of the appellants set aside –Arms Act – s.21(1)(a) – Indian Explosives Act – ss.3, 5.
Criminal Law – Reversal of acquittal by the appellate court – Presumption of innocence in favour of the accused – Held: Where an appellate court is reversing trial court’s order of acquittal, it should give proper weight and consideration to the presumption of innocence in favour of the accused, and to the principle that such a presumption stands “reinforced, reaffirmed, and strengthened by the trial court”.
Evidence – Evidentiary value of extra-judicial confession – Discussed.
Allowing the appeals, the Court
HELD : 1.1 There are material contradictions in the testimonies of PW-28 and PW-29. The evidence of PW-28 and PW-29 also becomes shaky as both of them knew that Arjun was missing since 4th February 2001 but did not inform Paramhansh (PW-1) or the police to the presence and conduct of the Appellant No. 1, despite residing near the residence of the complainant and being aware of the frantic search for Arjun post his disappearance. This renders their testimony unreliable. Thus, the theory of last seen fails and is rejected as a feeble and untrustworthy evidence. PW-1) has not testified that he had identified the dead body found in the agricultural farm was that of his son. Minimum age of the deceased was recorded around 16 years. PW-1’s son on the other hand was 9 years of age. Thus, the entire case of the prosecution is based on circumstantial evidence. In a case which rests on circumstantial evidence, law postulates two fold requirements:- (i) Every link in the chain of the circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt.
(ii) All the circumstances must be consistent pointing only towards the guilt of the accused. In the case at hand, evidence of PW-28 and PW-29, who were crucial to the case of prosecution to establish that deceased was last seen with Appellant Accused no.-1, is riddled with unexplained contradictions and were rightly dis-believed by the trial court. High Court committed an error of law in placing reliance upon the evidence of the aforesaid two witnesses. The High Court also failed to take into account the time gap between the point when the Accused Appellant No.-1 and deceased were seen together and when the death is alleged to have occurred. According to the prosecution evidence the two were seen together on 04.02.2001 at about 10:30 a.m. The dead body was recovered on 13.02.2001. Post-mortem was conducted on 14.02.2001. Although the possible time of death is not indicated in the post-mortem report but the Doctor who carried out the post-mortem opined in the statement that the time of death can be estimated to be 36 to 48 hours before the post mortem. There was a huge time gap between the point when the accused and deceased were last seen together and the time of death. This crucial fact was miserably over looked by the High Court. Apart from Extra-Judicial Confession by Appellant Accused No.-1 no direct evidence was adduced by the prosecution to establish involvement of the accused in the alleged crime. Entire case of the prosecution was based on circumstantial evidence and theory of last seen together. [Paras 10-12, 15] [278-A, D-G; 279-B-C; E-F; 280-G; 281-A-C]
1.2 In a case based on circumstantial evidence the Courts ought to have a conscientious approach and conviction ought to be recorded only in case all the links of the chain are complete pointing to the guilt of the accused. Each link unless connected together to form a chain may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused. Evidence adduced against the appellants do not form the complete chain connecting them with the crime and the prosecution has failed to prove the guilt beyond doubt. Lastly, the extra-judicial confession is questionable. In the complaint filed by PW-1 he alleged that the appellants had acted upon the behest of accused no.5 but did not allude, as admitted in his crossexamination, to any confession being made by Appellant No.1 about abducting son and handing him over to Appellant Nos. 2 &
3. That such confession was allegedly made emerged during the examination of the PW-1, PW-9 and PW-22. There are noticeable contradictions about the circumstances in which the confession was made, viz., the number of people in whose presence it was made, degree of coercion/fear/intimidation that elicited the alleged confession, among others.[Paras 16-18] [281-D-H; 282-A]
1.3 In the present case, there are no eye witnesses to affirm and corroborate the fact that the Appellant No. 1, as allegedly confessed, had taken PW-1’s son on a bicycle and handed over the child to Appellant Nos. 2 and 3. Further, the unfounded last seen theory, contradicting medical evidence, and facts of the case, particularly concerning the recovery of the body, belie the material details of the alleged extra-judicial confession. Ergo, in the absence of any credible corroboration of both: the actual occurrence of such a confession and the incriminating facts alleged to have been disclosed in the confession, this Court cannot accept that the conviction of the appellants can be sustained on the basis of such a confession. Accused No.5, was not convicted by the appellate court. Appellant No. 4 who was convicted by the appellate court was not assigned any role in the entire incident. The High Court should not have interfered with the acquittals given by the trial court, unless the acquittals were vitiated by manifest illegality or such a conclusion “could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse”. Where an appellate court is reversing a trial court’s order of acquittal, it should give proper weight and consideration to the presumption of innocence in favour of the accused, and to the principle that such a presumption stands “reinforced, reaffirmed, and strengthened by the trial court”. The conviction and sentences of the appellants is set aside and they are directed to be released from custody, unless required to be detained in any other case in accordance with law. [Paras 20-22] [283-B-G; 284-A] Sharad Birdichand Sharda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88 ; Bodh Raj Alias Bodha v. State of Jammu and Kashmir (2002) 8 SCC
45 : [2002] 2 Suppl. SCR 67 ; Rambraksh v. State of Chhattisgarh (2016) 12 SCC 251 : [2016] 2 SCR
599 ; Anjan Kumar Sharma v. State of Assam 2017 (6) SCALE 556 ; Sahadevan v. State of T.N. (2012) 6 SCC
403 : [2012] 4 SCR 366 ; Jagroop Singh v. State of Punjab (2012) 11 SCC 768 : [2012] 7 SCR 91 ; Tota Singh v. State of Punjab (1987) 2 SCC 529 : [1987] 2 SCR 747 ; Chandrappa v. State of Karnataka (2007) 4 SCC 415 : [2007] 2 SCR 630 – relied on.
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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