2007 Supreme(SC) 296

2007(2) Supreme 579
SUPREME COURT OF INDIA
(From Bombay High Court)
B.N. Agrawal and P.P. Naolekar, JJ.
State of Goa—Appellant
versus
Sanjay Thakran & Anr.—Respondents
Criminal Appeal No. 873 of 2004
With
Criminal Appeal No. 874 of 2004
Decided on 2-3-2007
Counsel for the Parties :
For the Appellant : Mahendra Anand, Sr. Advocate, Dhruv Mehta, Harshvardhan Jha, Yashraj Singh Deora, Manoj Mehta (for M/s. K.L. Mehta & Co.), Mohit Chaudhary, Manish Jain, Ms. Pooja Sharma and Ms. Shobha, Advocates.
For the Respondents : R.K. Jain, Rajiv Dutta, Sr. Advocates, B.S. Chahar, Ms. Jyoti Chahar and Vinay Garg, Advocates.

IMPORTANT POINTS
1. It is a settled rule of criminal jurisprudence that suspicion, however grave, cannot be substituted for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence.
2. The ‘time gap’ between the accused persons last seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused.

Headnote:(i) Indian Penal Code, 1860—Sections 302, 120-B, 364, 392 rw/s 34—Murder case based on circumstantial evidence—Tests to be applied.

       Held : The prosecution case is based on the circumstantial evidence and it is a well-settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests:

       (1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

       (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

       (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

       (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.(Para 13)

       (ii) Criminal Procedure Code, 1973 —Section 378—Appeal against acquittal—Parameters of appreciation of evidence—Jurisdiction and limitations of the appellate Court—Duty cast upon the appellate Court to reappreciate the evidence to arrive at a just decision—Indian Penal Code, 1860—Sections 302, 120B, 364, 392 rw/s 34.

       Held : While exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with.(Para 15)

       (iii) Indian Penal Code, 1860—Sections 302, 120B, 364, 392 rw/s 34—Murder case—Circumstantial evidence of ‘last seen together’—‘Time gap’ between the accused persons seen in the company of deceased and detection of crime would be a material consideration for appreciation of evidence—No fixed or straight jacket formula for duration of time gap in this regard—Even in cases where time gap between the point of time when the accused and deceased were last seen alive and when deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.

       Held : From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.(Para 29)

       (iv) Indian Penal Code, 1860—Sections 302, 120B, 364, 392 rw/s 34—Murder of a newly married young couple—Circumstantial evidence—Acquittal by High Court—Appeal against—Deceased couple, husband aged 26 years and wife aged 23 years had gone to Goa for their honeymoon and were staying in a hotel—Their dead bodies found on two different beaches which were at a distance of about 60 kms.—Considerable time gap between the persons seen together and the proximate time of crime—Evidence regarding recovery of incriminating articles from the accused persons has been discarded—Serious doubt regarding fairness of test identification—Absence of any other corroborative piece of evidence to complete chain of circumstances to fasten guilt on accused persons who were having a restaurant in Goa—Chain of circumstances not complete to conclusively establish that either A1 or A2 alone or with the common intention of each other have committed the crime of murder of newly married couple—Whether High Court was justified in granting benefit of doubt to A1 and A2—(Yes)—Merely suspicion, however grave, cannot replace the weight attached to the evidence.

       Held : Even if we believe the evidence of P.W.-11 that he saw D-1 in the company of A-1 walking towards the beach and thereafter saw A-1 returning alone after 30 to 45 minutes, there has been a time gap of about 2¼ hours when A-1 and D-1 were last seen together and when the dead body of D-1 was found at around 00.30 a.m. at the Benaulim Beach. No evidence was led by the prosecution to prove the fact that there was no possibility of any other person approaching D-1 on the beach which is a public place, during the intervening period when A-1 was last seen with the deceased and when the crime was detected.(Para 30)

       The dead body of D-2 was found at around 7.30 a.m. on 28.02.1999 at Vagator Beach, around 60 kms. from the beach where the dead body of D-1 was recovered and quite a long distance from Hotel Seema. Hence, there has been a considerable time gap of approximately 8½ hours when D-2 was last seen alive with the accused couple. There being a considerable time gap between the persons seen together and the proximate time of crime, the circumstance of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused. (Para 31)

       Thus, in the circumstances of the case, the accused persons not giving any explanation in their examination under Section 313, Cr.P.C. could not be taken to be a circumstance pointing towards irresistible conclusion that they are involved in the commission of the crime. (Para 33)

       In the light of the factors that evidence regarding the recovery of the incriminating materials from the accused persons has been discarded; that there has been sufficient time gap between the instances when the accused persons were last seen together with the deceased persons; and in the absence of any other corroborative piece of evidence to complete the chain of circumstances to fasten the guilt on the accused couple, we are of the opinion that the accused have been rightly given the benefit of doubt by the courts below. We have found that the finding of the High Court that the chain of circumstances is not complete to conclusively establish that either A-1 or A-2 alone or with the common intention of each other have committed the dreadful crime of murder of newly married couple, is correct and merely suspicion, however grave, cannot replace the weight attached to the evidence.(Para 34)

       (v) Indian Penal Code, 1860—Sections 302, 120B, 364, 392 rw/s 34—Murder—Circumstantial evidence of ‘last seen together’—Considerable time gap between the persons seen together and the proximate time of crime—Fact that accused persons not giving any explanation in their examination u/s 313 Cr.P.C. could not be taken to be a circumstance pointing towards irresistible conclusion that they are involved in the commission of the crime—Criminal Procedure Code, 1973—Section 313.(Para 33)

       (vi) Evidence Act, 1872—Section 9—Criminal Manual issued by High Court of Bombay—Paragraph 16(2)(h) —Test Identification Parade—Manner of conducting—A1 and A2, husband and wife placed in the same identification parade with 6 dummies each—A1 was around 38 years old at that time—5 of the dummy persons belonging to age group of 23-27 and another dummy was of 40 years old—Identification parade held was contrary to Para 16(2)(h) of the Criminal Manual—There is serious doubt regarding fairness of the test identification—Indian Penal Code, 1860—Sections 302 and 120B.(Para 22)