IMPORTANT POINT
Murder and disappearance of evidence – Circumstantial evidence – Last seen together theory projected by prosecution should be proximate to death of victim.

JUDGMENT

K. VINOD CHANDRAN, J.

Leave granted.

2. An enquiry, commenced with a missing person complaint, led, to the arrest of the appellants, discovery of the body; exhumed from a graveyard, recovery of a rope; allegedly used to strangulate the victim, allegation of ransom calls received and recovery of material possessions of the victim from the house of one of the accused and a mobile phone from a witness. These coupled with the last seen theory; as purportedly stated by the witnesses, resulted in the prosecution being lodged before the Trial Court. The Trial Court after examining the evidence found it to be not sufficient to enter a finding of guilt, resulting in the acquittal of the accused. The High Court on an appeal by the State found that the five golden principles as enunciated in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 adequately satisfied, bringing forth a conclusion only of a hypothesis of guilt excluding all possible hypothesis of innocence. There is no weak link, and the chain of circumstances is complete was the finding of the High Court. The High Court reversed the judgment of the Trial Court but found no kidnapping as charged, all the same finding the accused guilty of murder (Section 302 of the Indian Penal Code, 1860 [For brevity ‘the IPC’]) and causing disappearance of evidence (Section 201 of the IPC).

3. We are, in the above appeals, confronted with the divergence of opinion as expressed by the Trial Court and the High Court respectively. We heard Sh. Subhro Sanyal, Advocate-on-Record and Sh.Ajay Sabharwal, Advocate appearing for the two appellants and Sh. Avijit Mani Tripathi, Advocate-on-Record appearing for the State.

4. Learned counsel appearing for the accused argued that a well-reasoned judgment of acquittal was reversed by the High Court without any compelling reason and without recording a clear finding as to whether the view taken by the Trial Court was a possible view, bringing forth a reasonable doubt. The trite principle that an acquittal by one Court reinforces the presumption of innocence available to the accused, not liable to be displaced lightly, was thrown to the winds. The High Court has substituted its own inferences on the evidence led. There is no valid last seen theory coming out of the evidence and there is no clarity as to the exact time of death. Neither was the recovery of the murder weapon (rope) proved, nor was it found to have any connection with the crime, the traces of which having not been detected in a forensic analysis. The allegation of ransom calls having been made to the father of the victim was not at all established. The confessional statements are full of inconsistencies, not made voluntarily and does not contain any inculpatory statements. Further, there can be no conviction based merely on the confessional statement, which also was retracted. The cumulative effect of the lapses in investigation and the complete absence of incriminating circumstances; the former of which was specifically noticed by the High Court, ought to have persuaded the High Court to not disturb the acquittal by the Trial Court.

5. Learned counsel appearing for the State would, however, vehemently put forth the incriminating circumstances coming out from the last seen theory and recovery of the weapon and the other possessions of the victim, as also the confessional statement, the last of which, per State, corroborates the entire prosecution story. The learned counsel specifically referred to the decisions of this Court in Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1 and Manoharan v. State by Inspector of Police, Variety Hall Police Station, Coimbatore, (2020) 5 SCC 782 to urge that a confessional statement voluntarily made, even if retracted, can still be reckoned to bring home a conviction, which has been successfully done in the present case. The High Court rightly reversed the judgment of the Trial Court, and the conviction has to be uphe