Evidence: Circumstantial evidence – Conviction on basis of – Permissibility of – On facts, prosecution case that appellant no. 1 lured the victim out of his house, remained with him all along, on the fourth day joined by appellant no. 2 thereafter, both conspired and murdered the victim – Conviction of appellant no. 1 and 2, u/s.
302 r/w 34 and 120B and sentenced accordingly – Appellant no. 1 also convicted u/s. 364 – Upheld by the High Court – On appeal, held: Upon considering the prosecution evidence in entirety, no reason to disbelieve the prosecution version of last seen theory against the accused – Medical evidence fully corroborates the prosecution story of murder of the victim having being taken place on the fourth day – Motive attributed to the appellants that they murdered the victim because he was allegedly having an illicit affair with the sister of appellant No.1, sufficiently proved by the prosecution – False information given by appellant No.1 and his post occurrence conduct of absconding and surrendering before the court only after coercive measures were taken, is relevant to prove an additional link in the chain of incriminating circumstances – As regard, appellant No.2, only substantial evidence against him is that he too was seen in the company of the victim and appellant No.1 on the fourth day – Mere suspicion cannot be accepted as impeccable evidence to prove his guilt beyond any doubt – Further, no allegation against appellant No.2 of being evasive or absconding post occurrence levelled – Thus, due to missing links in the prosecution case as regards 2nd Appellant, guilt of 2nd Appellant not proved beyond the pale of doubt – Thus, 2nd Appellant entitled to the benefit of doubt and is acquitted of the charges, while the conviction and sentence of appellant No.1 is upheld – Penal Code, 1860 – u/s. 302 r/w 34 and ss.120B and 364.
Principle of ‘Last seen theory’ - Explained.
Motive – Proof of – Important piece of corroborative evidence – Explained.
Juvenile Justice (Care and Protection of Children) Act, 2000: s. 7A – Juvenility – Plea of – Held: Initial onus is on the accused to produce some cogent evidence to prima facie establish the juvenility on the date of commission of the offence – On facts, 1st Appellant raised plea of juvenility for the first time before this Court – Documents relied upon by 1st Appellant-School Leaving Certificate and Admit Card issued by the School Examination Board do not inspire any confidence and is not possible to verify the veracity of the two documents at this highly belated stage – Plea of juvenility raised by the 1st Appellant is rejected.
Partly allowing the appeal, the Court
HELD: 1. Although the powers vested in this Court under Article 136 of the Constitution are wide, this Court in a criminal appeal by special leave will ordinarily loath to enter into a fresh re-appraisement of evidence and question the credibility of witnesses when there is a concurrent finding of fact, save for certain exceptional circumstances. While it is difficult to lay down a rule of universal application, it has been affirmed time and again that except where the assessment of the High Court is vitiated by an error of law or procedure, or is based on misreading of evidence, or is inconsistent with the evidence and thus has led to a perverse finding, this Court would refrain from interfering with the findings of the Courts below. [Para 25][928-C-E]
2.1 The case of the prosecution in the instant case heavily banks upon the principle of ‘Last seen theory’. The last seen theory is applied where the time interval between the point of when the accused and the deceased were last seen together, and when the victim is found dead, is so small that the possibility of any other person other than the accused being the perpetrator of crime becomes impossible. The fact of last seen should not be weighed in isolation or be segregated from the other evidence led by the prosecution. The last seen theory should rather be applied taking into account the case of the prosecution in its entirety. Hence, the Courts have to not only consider the factum of last seen, but also have to keep in mind the circumstances that preceded and followed from the point of the deceased being so last seen in the presence of the accused. [Para 29, 30][929-FG; 930-E-F]
2.2 The prosecution in the instant case undoubtedly established that the deceased was last seen alive in the company of the appellants, and has also adduced evidence about the events leading up to and following the point of last seen. The depositions of PW-2, PW-3A, PW-16 and PW-17 do suggest that prior to the point of last seen, the deceased was constantly in the company of Appellant No.1. PW-3 and PW-4 are the persons who lastly saw the deceased alive on 09.04.1987, and they categorically deposed that they had seen the deceased along with the appellants. Through the depositions of PW-1, PW-5, & PWs 10 to 14 the prosecution has attempted to shed light on the events that occurred post the point of last seen. [Para 31][930-F-H]
2.3 The submission that most of the prosecution witnesses were either related or close to the complainant party and their testimony could not be relied upon in the absence of corroboration by any independent witnesses, is without much substance. It is trite in law that the job of the prosecution is to put forth the best evidence that is collected during the investigation. Although it is ideal that the prosecution case is further substantiated through independent witnesses, but it would be unreasonable to expect the presence of third-parties in every case. The prosecution’s case cannot be discarded merely on a bald plea of all witnesses being related to the complainant party. Hence, in order to draw an adverse inference against the non-examination of independent witnesses, it must also be shown that though the best evidence was available, but it was withheld by the prosecution. That apart, PW-3 saw A and the appellants on the outskirts of the village, whereas, PW-4 saw A and the appellants inside appellant No.2’s house. Neither of these witnesses claim to have seen the deceased and the appellants at a public place. Thus, it would not be illogical to infer that there was no independent witness to this occurrence. Further, the deposition of both PW-3 and PW-4 seems natural and nothing has been adduced in their cross-examination to disbelieve their testimonies. [Para 32, 33][931-A-E]
2.4 The appellants submitted that even if the deposition of PW-3 was considered true, he had seen A in the company of the appellants on 09.04.1987, which was two days before the discovery of the dead body. It was, thus, submitted that the intervening time period between the two events could not rule out the possibility of intervention by a third party and as such there wasn’t a continuous chain of circumstances. While this submission seems attractive at the first instance, but, when considered in the light of testimonies made by the independent witnesses PW-6 and PW8, it stands completely belied. The prosecution case is that both the appellants committed the murder on the night of 09.04.1987. PW-8, who discovered the body of A on 11.04.1987, deposed that he had heard rumors about the dead body the previous night itself, however, on account of it being dark and a forested area, he was only able to proceed to the spot the next day. Given that the body was lying on the spot at least since 10.04.1987, the instant crime could have been committed on or before 10.04.1987. The medical evidence in the instant case further braces the prosecution story. PW-6, the Doctor, examined the body of the deceased on 12.04.1987. In his opinion, the time elapsed since the death of A was 36 to 72 hours. Thus, the medical evidence fully corroborates the prosecution story of the murder having being taken place on 09.04.1987. The Courts below held that the murder of the deceased indeed took place on 09.04.1987. There is no reason to take a contrary view. [Para 34][931-E-H; 932-AB]
2.5 Appellant No.1 has been unable to offer any explanation as to circumstances in which he departed from the company of the deceased. [Para 35][932-D]
2.6 As regard to the reliability of the depositions of PW-10 to PW-14, the primary submission is that except PW-12, none of the other witnesses were able to identify the present appellants; and that the testimony of PW- 12 seems doubtful as it was highly improbable that the witness was able to see appellant No.2 through the light of a lamp. Assuming that the depositions of PW-10, PW-11, PW-13 and PW-14 do not add much value to the case in hand, the question whether PW-12 could or could not identify appellant No.2 is purely a factual issue and courts below have taken a concurrent view in relation thereto. PW-12 was able to identify appellant No.2 because of the chicken-pox marks on his face. Even in the initial statement recorded by the police, PW-12 had maintained that one of the two persons who he had interacted with on the night of 09.04.1987, had chicken-pox scars on his face. [Para 36][932-D-G]
2.7 Upon considering the prosecution evidence in its entirety and having meditated on the grounds raised by the appellants to every possible extent, there is no reason to disbelieve the prosecution version of last seen theory against the appellants. [Para 37][932-G-H]
3.1 If motive in a case is attributed to an accused(s) and thereafter proved, the probability of the crime being committed by the said accused is intensified. It is for this reason, that in cases of overwhelming circumstantial evidence, proof of motive will be an important piece of corroborative evidence, as well as, form a vital link in the chain of evidence. [Para 38][933-A-B]
3.2 The motive attributed to the appellants in this case is that they murdered the deceased because he was allegedly having an illicit affair with ‘R’, sister of appellant No.1. While none of the witnesses have specifically deposed about the deceased having an affair with R, the motive, as alleged, does find some corroboration in the deposition of PW- 1, PW-3A, and PW-16. It is revealed from the testimony of PW-3A, that initially there were cordial and friendly relations between the 1st Appellant and deceased’s family but the same became sour after the month of February. PW-1 who is a fellow villager corroborated the testimonies of PW-3A. PW-16 categorically deposed that a Panchayat had been called in regards to the illicit relationship of the deceased with ‘R’. [Para 39][933-B-D]
4.1 The fact of the deceased having an affair with the sister of appellant No.1 has of course not been established beyond doubt but the factum of calling Panchayat so that the issue does not spiral out of control does suggest that appellant No.1 carried a motive to eliminate the deceased. The events had occurred in the year 1987, when the rural Indian society was irrepressibly conservative, and even the slightest rumor of extra- marital affairs could flare-up tensions. Considering these ground realities, the trial court correctly recorded that the motive as alleged had been sufficiently proved by the prosecution. The counsel for appellants has not mounted any substantial challenge on the point of motive, and as such, there is no reason to interfere with the indictment of appellant No.1 on the point of motive. [Para 40][933-D-G]
4.2 Both the witnesses PW-1 and PW-5 individually met appellant No.1 on 10.04.1987 and both of them enquired about the whereabouts of A. Appellant No.1 lied to PW-1 and told him that after viewing the Cinema, A alone had proceeded to Amwa whereas appellant No.2 had gone to visit Dopta. Even more curiously, appellant No.1 informed PW-5 that A had left for Delhi. It is clear that the false information provided by the first appellant was an attempt to hide his guilt by de-railing the search efforts that were being conducted. Appellant No.1 thereafter absconded and surrendered before the court only after coercive measures were taken. The false information given by appellant No.1 and his post occurrence conduct is relevant to prove an additional link in the chain of incriminating circumstances. [Para 41][933G-H; 934-A-C]
4.3 There is, however, a qualitative difference in the evidence led by the prosecution to prove charges against Appellant No.2. The prosecution’s case is that it was the 1st Appellant who allured the deceased and persuaded him to accompany the said appellant to watch cinema. It is neither their case nor have the prosecution witnesses deposed that appellant No. 2 was involved in the persuasive abduction of the deceased from his house on 05.04.1987. This has to be seen in the context of motive behind the offence. It is proved on record that the 1st Appellant had an axe to grind against the deceased who was allegedly having illicit relationship with his sister. There is no motive alleged or proved which would have swayed appellant No.
2 to commit murder of the deceased. Still further, prosecution has led no evidence that there was any meeting of mind between the 1st and the 2nd Appellant on or before 08.04.1987, or that they hatched any conspiracy together to commit the murder of A. There is also no evidence on record to suggest that appellant No.1 disclosed his intention to commit murder of deceased to the 2nd appellant. [Para 42][934-C-F]
4.4 It is true that the prosecution has led evidence comprising the statements of PW-3 and PW-4 who had lastly seen the deceased alive on 09.04.1987 in the company of the 1st and the 2nd Appellants. However, until and unless the last seen theory is substantiated by other circumstantial evidence to constitute an unbreakable chain of events, the conviction cannot rest solely on the basis that the 2nd Appellant was also present along with appellant No.1 in the company of the deceased when they were seen together on 09.04.1987. [Para 43][934-F-G]
4.5 It is pertinent to mention that some incriminating material consisting of one pair of slippers, one handkerchief, a knife, jerrycan and two lungis were found and seized at the place of occurrence. While PW-16, namely, father of the deceased has identified one of the seized lungis belonging to appellant No.1, none of the recovered articles have been attributed to the 2nd Appellant. The only substantial evidence against the 2nd Appellant is that he too was in the company of the deceased and appellant No.1 on 09.04.1987, i.e., they were seen together lastly. Even if it is presumed that the deposition of PW-12 identifying appellant No.2 on the night of 09.04.1987 to be true, such evidence, may create a strong suspicion in respect of involvement of the 2nd Appellant in the murder of the deceased, but then, mere suspicion cannot be accepted as impeccable evidence to prove his guilt beyond any doubt. [Para 44][934-H; 935-A-C]
4.6 There is post occurrence circumstantial evidence led against appellant No.1, namely, that he did not disclose the whereabouts of the deceased and then surreptitiously disappeared from the scene till he surrendered in Court. There is no such allegation of being evasive or absconding post occurrence levelled against appellant No.2. There are, thus, missing links in the prosecution case so far as the 2nd Appellant is concerned. Consequently, and for the reasons, the case of Appellant No.2 is distinguishable from that of Appellant No.1 and the prosecution has not been able to prove the guilt of 2nd Appellant beyond the pale of doubt. The 2nd Appellant is, thus, entitled to the benefit of doubt. [Para 45][935-C-E]
5.1 Section 7-A of Juvenile Justice (Care and Protection of Children) Act, 2000 sets out the procedure to be followed by a court to determine the claim of juvenility. Its proviso enables to raise the claim of juvenility before “any court” and at “any stage”, even after the final disposal of the case. However, in order to take advantage of the provision, there lies an initial onus on the accused to produce some cogent evidence to prima facie establish the juvenility on the date of commission of the offence. [Para 46][935-E-F]
5.2 The 1st Appellant raised plea of juvenility for the first time before this Court. He has placed a School Leaving Certificate along with an Admit Card issued by the Bihar School Examination Board, wherein, appellant No.1’s date of birth is claimed to be 01.03.1970. It has been asserted that the 1st Appellant was 17 years old at the time of occurrence. When the documents relied upon by 1st Appellant are analysed in the backdrop of these settled principles, the same do not inspire any confidence. The name of appellant No.1 does not appear on the documents, instead these belong to one ‘SP’. It is nearly impossible to verify the veracity of the two documents relied upon by appellant No.1 at this highly belated stage. Further, the record of the trial court does suggest that the name of the 1st Appellant is ‘SM’ and not ‘SP’. In the absence of any cogent material indicating that the subjectdocuments pertain to 1st Appellant only, no case to hold any factfinding enquiry is made out. Consequently, reliance on the documents in question is not accepted and the plea of juvenility raised by the 1st Appellant is rejected. [Para 48][935-G-H; 936E-G]
6. While the conviction and sentence of Appellant No.1 is upheld, the 2nd Appellant is acquitted of the charges. [Para 49][936G-H] Abuzar Hossain alias Gulam Hossain v. State of West Bengal (2012) 10 SCC 489 : [2012] 9 SCR 244;
Inspector of Police, Tamil Nadu v. John David (2011) 5 SCC 509 : [2011] 7 SCR 354; State of Rajasthan v. Kashi Ram (2006) 12 SCC 254 : [2006] 8 Suppl. SCR 501; Sukhar v. State of U.P. (1999) 9 SCC 507 : [1999]
3 Suppl. SCR 314; Badruddin Rukonddim Karpude v. State of Maharashtra (1981) Supp SCC 1; Ravinder Singh Gorkhi v. State of U.P. (2006) 5 SCC 584 : [2006]
2 Suppl. SCR 615; Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; Mohd. Younus Ali Tarafdar v. State of W.B. (2020) 3 SCC 747; R. Damodaran v. State Represented by the Inspector of Police (2021) SCC OnLine SC 134; Satpal v. State of Haryana (2018) 6 SCC 610 – 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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