Penal Code 1860: s. 302 r/w 34 – Conviction under, on basis of circumstantial evidence – Sustainability of – Prosecution case that the victim assaulted with sharp weapons, sustained 22 antemortem injuries leading to instantaneous death – On the fateful day, the victim went to the house of PW 8, the accused persons also came there and the appellant in the latter appeal hurled abuses on the victim and asked him why he along with his friend had assaulted his brother, though the victim denied the assault – Later, the accused invited the victim for drinks and all of them left the house of PW 8 on motorcycles – An hour later, the dead body of the victim was found by the complainant – There was no eye-witness – Based on the circumstantial evidence, the trial court convicted the appellants u/s. 302/34 and sentenced them to life imprisonment – High Court upheld the same – On appeal, held: If doubt lingers with respect to the probability or conclusiveness of any circumstance relied on by the prosecution, forming a link in the chain of circumstances pointing to the guilt of convict, despite the existence of concurrent findings, the evidence has to be scrutinized by this Court so as to ensure that the totality of the evidence and circumstances relied on, did constitute a complete chain and it points to the guilt of the convict – On facts, correctness of the last seen version emanating from PW-8 becomes doubtful, especially against the appellants – Oral testimonies of PW-8 and PW-10 are at variance about the last seen and it becomes inconclusive – Prosecution failed to prove the alleged motive – Though the victim met with a homicidal death, it cannot be said that the rest of the circumstantial evidence culled out by the courts below unerringly point to the culpability of the appellants in the homicidal death of the deceased – Even the recovery of the weapon and the dress, at the instance of the appellant not conclusive – Conviction of the appellants cannot be maintained, thus, given benefit of doubt and are acquitted – Evidence.
Allowing the appeals, the Court
HELD: 1.1In view of the law relating circumstantial evidence and the scope of interference in exercise of power under Article 136 of the Constitution of India in respect of cases where concurrent findings are recorded by the lower courts, if doubt lingers with respect to the probability or conclusiveness of any circumstance relied on by the prosecution, forming a link in the chain of circumstances pointing to the guilt of convict, despite the existence of concurrent findings, the evidence has to be scrutinized by this Court so as to ensure that the totality of the evidence and circumstances relied on, did constitute a complete chain and it points to the guilt of the convict and it did not brook any hypothesis other than the guilt of the convict. [Para 13][671B-C]
1.2 There can be no doubt with respect to the fact that in a case where the conviction is based on circumstantial evidence, motive assumes great significance. Just like complete absence of motive failure to establish motive after attributing one, should also give a different complexion in a case based on circumstantial evidence and it will certainly enfeeble the case of prosecution. [Para 18][674-A, C-D]
1.3 The prosecution alleged a motive. According to the prosecution on 29.09.2001, the deceased along with his friend assaulted the brother of appellant in the latter appeal (the first accused in the Sessions Trial). It is also the case of the prosecution that after the accused persons entered the house of PW-8, the first accused/the appellant in the latter appeal hurled abuses on the deceased and asked him why he along with his friend assaulted his brother. It is also the case of the prosecution that though the deceased denied any such occurrence, the said appellant continued to say that the deceased had done dishonesty and assaulted his brother. After alleging motive the prosecution had failed to establish the same. In this context, it is to be noted that the trial court made a positive finding that the prosecution had miserably failed to establish the alleged motive. Despite the said finding of the trial court and despite that issue was pointedly raised before the High Court, obviously the High Court in the impugned judgment did not consider the said aspect at all. This failure on the part of the High Court is a ground specifically taken in this appeal. The failure to establish the alleged motive in a case based on circumstantial evidence, had weakened the case of the prosecution. This aspect should have been given proper weight by the courts below. [Para 21][675-G; 676-A-D]
1.4. When the factual position obtained from the oral testimonies of PW-8 and PW-10, the High Court which observed that the circumstance of ‘last seen’ is an important circumstance in the case on hand and its proof would depend upon the quality and nature of the testimonies of PW-8 and PW-10 should have bestowed a threadbare, serious consideration to answer the question whether the evidence of PW-10 would lend corroboration to the evidence of PW-8. So also, the courts below in the overall circumstances, ought to have carefully considered the question whether the solitary oral evidence of PW-8 would conclusively prove the factum of the deceased lastly seen in the company of the deceased. On the careful scrutiny of the evidence of PW-8 and PW-10 it is held that both the trial court and the High Court have failed to make a proper exercise of that task taking into account the fact that the prosecution relies only on circumstantial evidence to establish the guilt of the accused. Thus, virtually the evidence of PW-10 not only failed to lend corroboration to the evidence of PW-8 but also puts it under a shadow of doubt. Hence, the High Court went wrong in holding that as relates the said circumstantial evidence of ‘last seen’ the evidence of PW-8 gets corroboration from the evidence of PW-10 and in that view of the matter, in agreeing with the conclusion of the trial court that the prosecution has succeeded in proving that the deceased was lastly seen with the accused, conclusively. [Para 25][678-G-H; 679-AD]
1.5 It is unsafe to rest on the sole testimony of PW-8 to apply the ‘last seen theory’ in this case against the appellants especially, going by PW-8 he had only nodding acquaintance with them. Thus, in a nutshell the correctness of the last seen version emanating from PW-8 becomes doubtful, especially against the appellants. The oral testimonies of PW-8 and PW-10 are at variance about the last seen and it becomes inconclusive for the reasons mentioned. The prosecution has miserably failed to prove the alleged motive. In such circumstance, though the deceased had met with a homicidal death it cannot be said that the rest of the circumstantial evidence culled out by the courts below unerringly point to the culpability of the appellants in the homicidal death of the deceased. Even the recovery of the weapon and the dress, at the instance of the appellant in the latter appeal cannot, by itself, be conclusive as admittedly, the panch witnesses for their recovery also did not support the prosecution. The remaining circumstances relied on by the prosecution and held as proved by the courts below would not unerringly point to the guilt of the appellants. Thus, it is unsafe on the said circumstances to maintain the conviction of the appellants; thus, the benefit of doubt is extended to them. The appellants are acquitted. [Paras 28-30][680-F-H; 681-A-C]
Prakash v. State of Rajasthan (2013) 4 SCC 668 : [2013] 2 SCR 458; Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; Anwar Ali & Anr. v. State of Himachal Pradesh (2020)
10 SCC 166:[2020] 9 SCR 878; Shivaji Chintappa Patil v. State of Maharashtra (2021) 5 SCC 626; Sarbir Singh v. State of Punjab 1993 SCC (Cri) 860; Brijlal Prasad Sinha v. State of Bihar (1998) SCC (Cri) 1382; Tomaso Bruno & Anr. v. State of Uttar Pradesh (2015) 7 SCC
178 : [2015] 1 SCR 721; Nandu Singh v. State of Madhya Pradesh (now Chhattisgarh) 2022 SCC
OnLine SC 1454 – 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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