2021 Supreme(SC) 425

SUPREME COURT OF INDIA
N.V. RAMANA, CJI., SURYA KANT, ANIRUDDHA BOSE, JJ.
Surajdeo Mahto and Another – Appellants
Versus
The State of Bihar – Respondent
Criminal Appeal No. 1677 of 2011
Decided On : 04-08-2021

IMPORTANT POINTS
(1) Apex Court in a criminal appeal by special leave will ordinarily loath to enter into a fresh re-appraisement of evidence and question credibility of witnesses when there is a concurrent finding of fact, save for certain exceptional circumstances.
(2) Fact of last seen should not be weighed in isolation or be segregated from other evidence led by prosecution. Last seen theory should rather be applied taking into account case of prosecution in its entirety.
(3) 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 chain of evidence.
(4) In order to draw an adverse inference against non-examination of independent witnesses, it must also be shown that though best evidence was available, but it was withheld by prosecution.

Headnote:

(A) Constitution of India – Article 136 – Appellate Jurisdiction – Scope and ambit – Although powers vested in this Court under Article 136 of Constitution are wide, this Court in a criminal appeal by special leave will ordinarily loath to enter into a fresh reappraisement of evidence and question credibility of witnesses when there is a concurrent finding of fact, save for certain exceptional circumstances – Except where assessment of High Court is vitiated by an error of law or procedure, or is based on misreading of evidence, or is inconsistent with evidence and has led to a perverse finding, this Court will refrain from interfering with findings of Courts below. (Para 25)

(B) Criminal Law – Circumstantial evidence – Last seen theory is applied where time interval between point of when accused and deceased were last seen together and when victim is found dead, is so small that possibility of any other person other than accused being perpetrator of crime becomes impossible – Unless fact of last seen is corroborated by some other evidence, fact that deceased was last seen in vicinity of accused, would by itself, only be a weak kind of evidence – Fact of last seen should not be weighed in isolation or be segregated from other evidence led by prosecution – Last seen theory should rather be applied taking into account case of prosecution in its entirety – Courts have to not only consider factum of last seen, but also have to keep in mind circumstances that preceded and followed from point of the deceased being so last seen in presence of accused. (Paras 29 and 30)

(C) Criminal Law – Motive – If motive in a case is attributed to an accused(s) and thereafter proved, probability of crime being committed by accused is intensified – 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 chain of evidence. (Para 38)

(D) Indian Penal Code, 1860 – Sections 302/34, 120B and 364 – Kidnapping, murder and conspiracy – Common intention – Conviction and sentence – Circumstantial evidence – Prosecution has established that deceased was last seen alive in company of appellants, and has also adduced evidence about events leading up to and following point of last seen – Job of prosecution is to put forth best evidence that is collected during investigation – Although it is ideal that prosecution case is further substantiated through independent witnesses, but it would be unreasonable to expect presence of third parties in every case – This Court has consistently held that prosecution’s case cannot be discarded merely on a bald plea of all witnesses being related to complainant party – In order to draw an adverse inference against non-examination of independent witnesses, it must also be shown that though best evidence was available, but it was withheld by prosecution – No reason to disbelieve prosecution version of last seen theory against appellants – Motive, as alleged, does find some corroboration in deposition of PWs – It is proved on record that the 1st Appellant had an axe to grind against deceased who was allegedly having illicit relationship with his sister – Conviction and sentence partly affirmed. (Paras 31, 32, 37, 42, 48 and 49)

Facts of the case:

Surajdeo Mahto (Appellant No.1) and Prakash Mahto (Appellant No.2) have laid challenge to the judgment dated 20.05.2010 passed by High Court at Patna, whereby, the order of their conviction and sentence dated 13.05.1988 passed by the 3rd Additional Sessions Judge, Nawadah was confirmed. Both the Appellants have been convicted for offences under Section 302 read with Section 34 of the Indian Penal Code read with Section 120B of the IPC and have been sentenced to life imprisonment for each of the offences. Additionally, Appellant No.1 has also been convicted under Section 364 IPC and has been sentenced to five years of imprisonment for said offence, with a direction that the sentences will run concurrently.

Findings of Court:

When documents relied upon by 1st Appellant are analysed in the backdrop of these settled principles, we find that the same do not inspire any confidence. The name of Appellant No.1 does not appear on the documents, instead these belong to one ‘Suryadev Prasad’. 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 1st Appellant is ‘Surajdeo Mahto’ and not ‘Suryadev Prasad’. In absence of any cogent material indicating that the subject documents pertain to 1st Appellant only, no case to hold any fact-finding enquiry is made out. Consequently, we decline to place reliance on the documents in question and reject the plea of juvenility raised by 1st Appellant.

Result : Appeal Partly allowed.