2019 Supreme(SC) 249

SUPREME COURT OF INDIA
A.K. SIKRI, S. ABDUL NAZEER, M.R. SHAH, JJ.
DIGAMBER VAISHNAV & ANR – APPELLANTS
VERSUS
STATE OF CHHATTISGARH – RESPONDENT
CRIMINAL APPEAL NOS. 428-430 OF 2019 (Arising out of S.L.P. (Crl.) Nos.5530-5532 of 2015)
Decided on : 05-03-2019

IMPORTANT POINT
Circumstance of last seen together cannot by itself form basis of holding accused guilty of offence.

Headnote:(A) Criminal Procedure Code, 1973 – Sections 235 – Judgment of acquittal/conviction – Burden of proof squarely rests on prosecution and that general burden never shifts – There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be – Strong suspicion, strong coincidences and grave doubt cannot take place of legal proof – Onus of prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate accused nor falsity of defence could take place of proof which prosecution has to establish in order to succeed, though a false plea by defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to guilt – In criminal cases, if two views are possible on evidence adduced in the case, one binding to guilt of accused and other is to his innocence, view which is favourable to accused, should be adopted – This principle has special relevance in cases wherein guilt of accused is sought to be established by circumstantial evidence, (Paras 16 and 19)

       (B) Indian Evidence Act, 1872 – Sections 118 – Child witness – Evidence of child witness and

       its credibility could depend upon facts and circumstances of each case – Evidence of a child witness must be evaluated carefully as child may be swayed by what others tell him and he is an easy prey to tutoring – Evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law. (Paras 21 and 22)

       (C) Indian Evidence Act, 1872 – Sections 27 – Disclosure statement – Under Section 27 of Indian Evidence Act, it is not discovery of every fact that is admissible but discovery of relevant fact is alone admissible – Relevancy is nothing but connection or link between facts discovered with crime. (Para 29)

       (D) Indian Penal Code, 1860 – Sections 302, 307, 364, 201 and 380 – Murder of six persons – Capital punishment – Case of prosecution is mainly dependent on testimony of child witness – She is not an eyewitness to incident – Her evidence is fraught with inconsistencies – None of other witnesses have identified appellants – Recovery of motorcycle is sought to be relied upon as a circumstance against appellants – There is nothing on record to show that motorcycle recovered at instance of appellant No.1, belongs to him – In absence of any identification of seized anklet, no reliance can be placed on its recovery – Cash has not been traced back to deceased as box from which articles were allegedly stolen has not been recovered or seen by any witness – Even in FIR, there is no averment of any article or money being stolen or lost – When money allegedly recovered is being sought to be relied upon as stolen from house of deceased, same is unreliable when there is nothing on record to support claim of theft or robbery from scene of crime – There

       were other three children present in house at the time of incident – No attempts have been made to examine them as well – Best evidence which would have been thrown light on controversy in question has been withheld – Reliance placed with analysis of shirt in absence of any unique make thereof is improper – Forensic evidence against appellants to prove their presence at scene of crime is insufficient – Findings of hair analysis are also inconclusive – It is not explained as to why appellants would intend to commit robbery but leave expensive ornaments behind – Entire motive of robbery is negated – If last seen evidence does not inspire confidence or is not trust worthy, there can be no conviction – To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between time of seeing and recovery of dead body – Impugned judgment set aside and appellants/accused acquitted. (Paras 21, 24, 29, 32, 33, 34, 37, 38, 39, 40, 43 and 44)

       Facts of Case:

       Multiple murders. Imposition of death sentence. Appeals against judgment and order passed by High Court of Chhattisgarh at Bilaspur, in Criminal Reference No.3 of 2014, affirming death sentence imposed by Sessions Judge.

       Findings of Court:

       Prosecution has alleged robbery as motive for commission of offence. It is sought to be sustained by recovery of some cash and a pair of silver patti that has not been identified by any witness. Site plan Panchanama shows that gold ornaments, pearl necklace, silver ornaments, etc. were left behind on person of deceased. It is not explained as to why appellants would intend to commit robbery but leave expensive ornaments behind. Entire motive of robbery is negated if these facts are considered as it seems implausible that persons with an intent to commit robbery would leave

       without precious ornaments that were on the person of the deceased.

       Result : Appeals allowed.