2023 Supreme(SC) 476

SUPREME COURT OF INDIA
SUDHANSHU DHULIA, SANJAY KUMAR, JJ.
Dinesh Kumar - Appellant
Versus
The State of Haryana - Respondent
Criminal Appeal No.530 of 2022
Decided On : 04-05-2023

IMPORTANT POINTS
(1) There cannot be discovery of an already discovered fact.
(2) When evidence of last seen itself is on a weak footing, considering long gap of time between last seen, Section 106 of Evidence Act would not be applicable.
(3) Evidence of last seen becomes an extremely important piece of evidence in a case of circumstantial evidence.

Headnote:

(A) Indian Penal Code, 1860 – Sections 302/364/392/394/201 read with Section 34 – Indian Evidence Act, 1872 – Sections 27 and 106 – Murder, kidnapping, robbery and disappearance of evidence – Common intention – Life sentence – Circumstantial evidence – Recovery of stolen tractor, place where murder was committed and place where body was thrown in canal were facts which were already in knowledge of Police – There cannot be discovery of an already discovered fact – Possibility of rigor mortis remaining in body for 90 hours cannot be ruled out completely, but this was never explained by prosecution – Circumstances of last seen together does not by itself lead to irrevocable conclusion that it is accused who had committed crime – Prosecution must come out with something more to establish this connectivity with accused and crime committed – In present case when there is no close proximity between circumstances of last seen together and approximate time of death, evidence of last seen becomes weak – When evidence of last seen itself is on a weak footing, considering long gap of time between last seen, Section 106 of Evidence Act would not be applicable – Prosecution has not been able to prove its case beyond reasonable doubt – Evidence of last seen only leads upto a point and no further – It fails to link it further to make a complete chain – Orders of trial court and High Court set aside. (Paras 8, 9, 12, 13, 14, 15 and 16)

(B) Indian Evidence Act, 1872 – Section 165 – Duty of Trial Judge – Purpose of trial is after all to reach to truth of matter – Duty of Presiding Judge of a criminal trial is not to watch proceedings as a spectator or a recording machine but he has to participate in trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain truth. (Para 11)

(C) Criminal Law – Circumstantial evidence – Evidence of last seen becomes an extremely important piece of evidence in a case of circumstantial evidence, particularly when there is close proximity of time between when accused was last seen with deceased and discovery of body of deceased or time of death of deceased – This does not mean that in cases where there is a long gap between time of last seen and death of deceased the last seen evidence loses its value – It would not, but then a very heavy burden is placed upon prosecution to prove that during this period of last seen and discovery of body of deceased or time of death of deceased, no other person but accused could have had access to deceased. (Para 12)

(D) Indian Evidence Act, 1872 – Sections 101 and 106 – Burden of Proof – Burden of proof is always with prosecution – It is prosecution which has to prove its case beyond reasonable doubt – Section 106 of Act does not alter that position – It only places burden for disclosure of a fact on establishment of certain circumstances – Section 106 of Act only comes into play when other facts have been established by prosecution. (Paras 12 and 13)

Facts of the case:

Appellant, and one Mange Ram, were convicted in Sessions Trial No. 47 of 2000, for offences under Sections 302/364/392/394/201 read with Section 34 of Indian Penal Code by Additional Sessions Judge, Jagadhri, Haryana. They were awarded life sentence under Section 302 IPC, and lesser sentence on the remaining convictions, vide order dated 11.07.2003. The two then filed separate appeals before Punjab and Haryana High Court. During pendency of his appeal co-accused Mange Ram passed away on 24.10.2004, and his appeal stood abated vide order dated 11.05.2017. Appeal of present appellant was dismissed and the conviction and sentence of the trial court was upheld by the High Court

Findings of Court:

Orders of trial court and High Court dated 11.03.2007 and 31.05.2017, respectively are hereby set aside. Appellant is in jail shall now be released forthwith unless his presence is required in any other case.

Result : Appeal allowed.