2008 Supreme(SC) 1335

2008(6) Supreme 541
Supreme Court of india
Dr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ.
Shivaji @ Dadya Shankar Alhat — Appellant
versus
The State of Maharashtra — Respondent
Criminal Appeal No. 1409 of 2008
(Arising out of Special Leave Petition (Crl.) No.57 of 2007)
Decided on : 05-09-08

Important Points
For a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also.
The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.
If the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, that forms the foundation for conviction. That has nothing to do with the question of sentence.

Headnote:Indian Penal Code, 1860 – Sections 302 and Section 376 (2)(f) – Prosecution of appellant for committing rape on a nine years old girl and thereafter committing her murder – Trial court while holding appellant guilty for said offences sentenced him to death for the offence of murder and in respect of the other offence sentenced him to suffer rigorous imprisonment for ten years – High Court while accepting reference dismissed appeal filed by accused – Appeal thereagainst – Plea of appellant that the case at hand was based on circumstantial evidence and the circumstances did not warrant conclusion of guilt of accused – Held for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission – The offence can be proved by circumstantial evidence also – The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts – Evidence of PW 8 sister of victim deceased that on day of occurrence she had gone with her sister deceased towards the borewell in order to fetch water, at about 11.30 a.m. – Accused met them and told deceased that he would give her fuel wood from the hill and deceased had gone along with accused – The body of deceased was found on next day on the hill-Not a single discrepancy found in evidence of PW8 – Evidence of PW 8 was corroborated by evidence of PW 9 a village woman who saw accused and deceased going towards the hill – Prosecution case of last seen theory was corroborated by evidence of PW 2 mother of deceased PW 7, grandmother of Deceased, PW 8 sister of deceased, and PW 9 a village woman – Impugned judgment of High Court, confirming conviction and sentence imposed by Trial Court, hence not warranted any interference. (Paras 6 to 15)

       (2005 (3) SCC 114), (2006(10) SCC 172) – Relied upon.

       Circumstantial Evidence – For a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission – The offence can be proved by circumstantial evidence also – The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts – Circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed – Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (Paras 16)

       AIR (1977 SC 1063); (AIR 1956 SC 316); (AIR 1983 SC 446); (AIR 1985 SC 1224); (AIR 1987SC 350); (AIR 1989 SC 1890); (AIR 1954 SC 621) – Referred.

       Indian Penal Code, 1860 – Sections 302 and Section 376 (2)(f) – Conviction of appellant for committing rape on a nine years old girl and thereafter committing her murder – Trial court sentenced appellant to death for the offence of murder and in respect of the other offence sentenced him to suffer rigorous imprisonment for ten years – High Court while accepting reference dismissed appeal filed by accused – Appeal thereagainst – Plea of appellant that since the conviction was based on circumstantial evidence, no death sentence should have been awarded and in any event this was not a case where death sentence should have been imposed –Held plea that in a case of circumstantial evidence death should not be awarded was without any logic – If the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, that forms the foundation for conviction – That has nothing to do with the question of sentence – The mitigating circumstances and the aggravating circumstances have to be balanced- In the balance sheet of such circumstances, the fact that the case rests on circumstantial evidence has no role to play- In fact in most of the cases where death sentence are awarded for rape and murder and the like, there is practically no scope for having an eye witness – But very nature of things in such cases, the available evidence is circumstantial evidence- If the said evidence has been found to be credible, cogent and trustworthy for the purpose of recording conviction, to treat that evidence as a mitigating circumstance, would amount to consideration of an irrelevant aspect – The plea of appellant that conviction being based on circumstantial evidence death sentence should not be awarded held clearly unsustainable – Facts and circumstances, established depraved acts of the accused, which called for only one sentence, and that was death sentence – Appeal dismissed. (Paras 40 to 44)

       Facts of the Case :

       Present appeal has been filed by appellant accused challenging his conviction and award of death sentence in a case where he was charged for offence of raping a minor girl and thereafter committing her murder.

       Findings of the Court :

       Appellant’s case that case at hand being based on circumstantial evidence and the circumstances did not warrant conclusion of guilt of accused. Held for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. Evidence of PW 8 sister of victim deceased that on day of occurrence she had gone with her sister deceased towards the borewell in order to fetch water, at about 11.30 a.m. Accused met them and told deceased that he would give her fuel wood from the hill and deceased had gone along with accused. The body of deceased was found on next day on the hill. Not a single discrepancy was found in evidence of PW8- Evidence of PW 8 was corroborated by evidence of PW 9 a village woman who saw accused and deceased going towards the hill. Prosecution case of last seen theory was corroborated by evidence of PW 2 mother of deceased, PW 7 grandmother of Deceased, PW 8 sister of deceased, and PW 9 a village woman. Impugned judgment of High Court, confirming conviction and sentence imposed by Trial Court, hence not warranted any interference.

       Result : Appeal dismissed.