The second circumstance relied upon by the prosecution is the
evidence of recovery. Under Section 27 of the Indian Evidence Act, it
is not the discovery of every fact that is admissible but the discovery of
relevant fact is alone admissible. Relevancy is nothing but the
connection or the link between the facts discovered with the crime.
The recovery of the motorcycle is sought to be relied upon as a
circumstance against the appellants. There is nothing on record to
show that the motorcycle recovered at the instance of appellant No.1, belongs to him. PW-13, IO, in his cross-examination admits that he
does not know whether the appellant No.1 is the owner of the
motorcycle. He further admits that no attempts were made by him to
enquire about the owner of the vehicle.
30. Testimony of PWs 4 and 5 is also unreliable since it contradicts
that of PW-10. As per PW-10, herself and Anita had seen the bodies of
the deceased at 3 a.m. She did not see the assailants and does not
mention anything about the motorcycle. Hence, there is no occasion
for the assailants of the deceased to remain in the house and hence
the motorcycle would not be outside the house of the deceased at 4
p.m. PWs 4 and 5 contradict each other. While PW-4 states that the
motorcycle was of Bajaj Company, PW-5 mentions it as a motorcycle
from Hero Honda Company. PW-5 in his examination-in-chief says
that he had moved the motorcycle to allow the tractor to pass.
However, in his cross-examination, he says that he did not move the
motorcycle and it was PW-4, who moved it. PW-5 does not even state
the day or month when he saw the motorcycle.
31. PW-2 was the witness to the seizure of the motorcycle. According
to him, the motorcycle was red in colour. However, as per the seizure
memo, the recovered motorcycle was black in colour. This makes the
recovery of the motorcycle unreliable.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 428-430 OF 2019
(Arising out of S.L.P. (Crl.) Nos.5530-5532 of 2015)
DIGAMBER VAISHNAV Vs STATE OF CHHATTISGARH
S.ABDUL NAZEER, J.
Dated:March 5, 2019.
1. Leave granted.
2. These appeals have been preferred by Digamber Vaishnav and
Girdhari Vaishnav challenging the judgment and order dated
30.04.2015 passed by the High Court of Chhattisgarh at Bilaspur, in
Criminal Reference No.3 of 2014, affirming the death sentence
imposed by the Sessions Judge, Baloda Bazar and dismissing the
criminal appeal Nos. 536 of 2014 and 537 of 2014 filed by them
challenging the aforesaid judgment and order of the Sessions Judge.
2
3. The prosecution story in brief is that the complainant, Badridas
Vaishnav lives in village Khapridih. He is a retired teacher.
Bhuneshwar was his brother. Both were living in separate mohallas.
Bhuneshwar Das had two wives, namely, Shri Bai and Subhadra Bai.
From Shri Bai, Bhuneshwar had seven daughters. From Subhadra
Bai, he had five daughters and a son. Bhuneshwar Das had expired
two years back. Mala, Kondi, Chandni, Nandini, Sharda and son
Govinda were residing in the house apart from Shri Bai and
Subhadra.
4. On 17.12.2012, at about 4 p.m., Chandni came to the house of
PW-1, Badridas and informed him that Shri Bai, Subhadra, Kondi,
Amrika and Mala Bai are lying dead in the courtyard and in a room.
The complainant along with his wife Shanti Bai and Chandni
immediately rushed to the house of Bhuneshwar and saw that Amrika
and Mala Bai were lying dead at parchhi and Shri Bai, Subhadra and
Kondi were lying dead in the room. There was bleeding from the nose
and mouth of deceased and there were marks of injuries on the neck.
5. The complainant lodged the report of the occurrence in Police
Outpost Gidhouri, where report (Exhibit P-6) was registered as per the
statement of the complainant which was registered as FIR in Crime
No.430/12 in the Police Station Bilaigarh. Marg intimations of
Subhadra Bai, Shri Bai, Kondi, Mala Bai and Amrika Bai were
3
registered as per the information given by Badridas. Witnesses were
summoned for the examination of the dead body of the deceased.
Panchanama of the deceased was prepared in the presence of the
witnesses. The doctor submitted post-mortem reports after conducting
post-mortem of all the deceased. The cause of death of all the
deceased was asphyxia due to strangulation and the deaths were
homicidal in nature. After post-mortem report, the dead bodies of all
the deceased persons were handed over to their relative Badridas for
cremation.
6. The investigating officer drew the map of the place of occurrence
in the presence of the witnesses. The police seized a bottle of Golden
Goa Whiskey (made of glass) and a plastic torch which were lying at
the place of occurrence. Six strands of black hair stuck between the
fingers of right hand of the deceased Kondi, two white coloured
buttons lying between dead bodies, blood stained soil, plain soil and
one woolen shawl were also seized from the place of occurrence. The
police also seized a shirt worn by the appellant No.1. Memorandum
statement of the accused Digamber was recorded as per his dictation
wherein he stated that he has kept the motorcycle at the house of
Girdhari and Rs.3000/- and anklet (pair patti) was kept in his house.
A sum of Rs.3000/- and anklet were seized after taking it out from the
pocket of trousers of Digamber. Memorandum statement of accused
4
Girdhari was recorded wherein he stated that he has concealed
Rs.2600/- and pair patti in carry bag at his house. Cash and a pair
patti kept in a plastic carry bag were produced by the accused
Girdhari from inside his house which were seized. Shirt worn by
accused Digamber was removed and seized and one white coloured
shirt with two missing buttons was seized from the accused Girdhari.
Consent panchanama was prepared for taking the hair (of head) of
accused Digamber and Girdhari and the hair (of head) of accused were
seized. Seized articles were sent to the Forensic Science Laboratory.
7. An application was made to finger print expert for examination of
finger prints on the wine bottle seized from the place of occurrence.
Report of Police Headquarter (Finger Prints) was received, according to
which finger prints of accused Digamber were found on the bottle of
Golden Goa Whiskey. FSL Report regarding button of the shirt of the
appellants and the buttons seized from the place of occurrence was
also received wherein two buttons and threads were stated to be
similar.
8. The police recorded the statement of PW-1, Badridas, Sheetal
Das, Smt. Shanti Bai, Kumari Chandni, PW-8, Anita Bai and Dan Bai,
Sohandas, PW-9 under Section 161 of Cr.P.C. After completion of
investigation, chargesheet was filed in the court of Judicial Magistrate,
who committed the case to the Sessions Court.
5
9. In order to prove their case, the prosecution examined 14
witnesses. The appellants were also examined under Section 313 of
the Cr.P.C. wherein they pleaded that they are innocent and have been
falsely implicated in the offence.
10. The Sessions Court by its judgment dated 14.05.2014 came to
the conclusion that prosecution has successfully proved beyond doubt
that the appellants have committed robbery in the house of the
deceased persons and committed murder of all the five ladies. Each of
the appellants was sentenced with R.I. for ten years and fine of
Rs.500/-, in default of payment of fine, they will further undergo one
month's R.I. for the offence under Section 394 read with Section 34 of
IPC. They were also sentenced with capital punishment for the offence
under Section 302 read with Section 34 IPC and ordered that they will
be hanged till death.
11. The Death Reference under Section 366(1) of the Cr.P.C. was sent
to the High Court for confirmation. The appellants preferred separate
appeals before the High Court. As noticed above, the High Court by
its judgment dated 30.04.2015 affirmed the judgment of the Sessions
Court.
12. Appearing for the appellants Sh. S. Nagamuthu, learned senior
counsel has mainly contended that there was an unexplained delay in
reporting the offence. Secondly, the courts below have mainly relied
6
on the testimony of PW-8. PW-8 is a child witness who was present in
the house at the time of the incident. She is not a witness to the
actual incident. Her testimony has not been corroborated. Therefore,
it is risky to rely on uncorroborated identification of the appellants at
her instance. It is further argued that the evidence of recoveries made
under Section 27 of the Indian Evidence Act is also unreliable. The
recovery of motorcycle is also unreliable and that the articles
recovered are not connected to the crime. The testimony of PW-9 is
hearsay and cannot be relied upon by the prosecution. Even the
finger print report cannot be relied on. Finally, he submits that the
evidence of last seen is insufficient to establish the guilt.
13. On the other hand, Sh. Atul Jha, learned counsel appearing for
the respondent, has supported the judgment of the courts below. He
prays for dismissal of the appeals.
14. We have carefully considered the submissions of the learned
counsel made at the Bar and perused the materials placed on record.
15. One of the fundamental principles of criminal jurisprudence is
undeniably that the burden of proof squarely rests on the prosecution
and that the 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 the place of legal proof. The onus of the prosecution
7
cannot be discharged by referring to very strong suspicion and
existence of highly suspicious factors to inculpate the accused nor
falsity of defence could take the place of proof which the prosecution
has to establish in order to succeed, though a false plea by the defence
at best, be considered as an additional circumstance, if other
circumstances unfailingly point to the guilt.
16. This Court in Jaharlal Das v. State of Orissa, (1991) 3 SCC 27,
has held that even if the offence is a shocking one, the gravity of
offence cannot by itself overweigh as far as legal proof is concerned. In
cases depending highly upon the circumstantial evidence, there is
always a danger that the conjecture or suspicion may take the place of
legal proof. The court has to be watchful and ensure that the
conjecture and suspicion do not take the place of legal proof. The
court must satisfy itself that various circumstances in the chain of
evidence should be established clearly and that the completed chain
must be such as to rule out a reasonable likelihood of the innocence of
the accused. In order to sustain the conviction on the basis of
circumstantial evidence, the following three conditions must be
satisfied:
i.) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly
established;
ii.) those circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused; and
8
iii.) the circumstances, taken cumulatively, should form a chain
so complete that there is no escape from the conclusion that
within all human probability the crime was committed by
the accused and none else, and it should also be incapable
of explanation on any other hypothesis than that of the guilt
of the accused.
17. In Varkey Joseph v. State of Kerala, 1993 Suppl (3) SCC 745,
this Court has held that suspicion is not the substitute for proof.
There is a long distance between 'may be true' and 'must be true' and
the prosecution has to travel all the way to prove its case beyond
reasonable doubt.
18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this
Court, while examining the distinction between 'proof beyond
reasonable doubt' and 'suspicion' has held as under:
"13. Suspicion, however grave it may be, cannot
take the place of proof, and there is a large difference
between something that “may be” proved, and
something that “will be proved”. In a criminal trial,
suspicion no matter how strong, cannot and must
not be permitted to take place of proof. This is for
the reason that the mental distance between “may
be” and “must be” is quite large, and divides vague
conjectures from sure conclusions. In a criminal
case, the court has a duty to ensure that mere
conjectures or suspicion do not take the place of
legal proof. The large distance between “may be”
true and “must be” true, must be covered by way
of clear, cogent and unimpeachable evidence produced
by the prosecution, before an accused is
condemned as a convict, and the basic and golden
rule must be applied. In such cases, while keeping
in mind the distance between “may be” true and
“must be” true, the court must maintain the vital
9
distance between mere conjectures and sure conclusions
to be arrived at, on the touchstone of dispassionate
judicial scrutiny, based upon a complete
and comprehensive appreciation of all features
of the case, as well as the quality and credibility
of the evidence brought on record. The court
must ensure, that miscarriage of justice is avoided,
and if the facts and circumstances of a case so demand,
then the benefit of doubt must be given to
the accused, keeping in mind that a reasonable
doubt is not an imaginary, trivial or a merely probable
doubt, but a fair doubt that is based upon
reason and common sense".
19. It is also well-settled principle that in criminal cases, if two views
are possible on evidence adduced in the case, one binding to the guilt
of the accused and the other is to his innocence, the view which is
favourable to the accused, should be adopted. This principle has a
special relevance in cases wherein the guilt of the accused is sought to
be established by circumstantial evidence [See Kali Ram v. State of
Himachal Pradesh, (1973) 2 SCC 808].
20. Bearing these principles in mind, we shall now consider the
contentions of the learned counsel for the parties. In coming to the
conclusion that the accused have committed the offence, the
prosecution has relied on (i) Testimony of child witness Kumari
Chandni (PW8); (ii) The recoveries made under Section 27 of the
Evidence Act; (iii) The fingerprint report; (iv) FSL report; (v) Motive of
committing robbery; and (vi) Evidence of last seen together.
10
21. The case of the prosecution is mainly dependent on the testimony
of Chandni, the child witness, who was examined as PW-8. Section
118 of the Evidence Act governs competence of the persons to testify
which also includes a child witness. Evidence of the child witness and
its credibility could depend upon the facts and circumstances of each
case. There is no rule of practice that in every case the evidence of a
child witness has to be corroborated by other evidence before a
conviction can be allowed to stand but as a prudence, the court
always finds it desirable to seek corroboration to such evidence from
other reliable evidence placed on record. Only precaution which the
court has to bear in mind while assessing the evidence of a child
witness is that witness must be a reliable one.
22. This Court has consistently held that evidence of a child witness
must be evaluated carefully as the child may be swayed by what
others tell him and he is an easy prey to tutoring. Therefore, the
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. [See
Panchhi and others v. State of U.P, (1998) 7 SCC 177, State of U.P.
v. Ashok Dixit and another, (2000) 3 SCC 70, and State of
Rajasthan v. Om Prakash, (2002) 5 SCC 745].
23. In Alagupandi alias Alagupandian v. State of Tamil Nadu,
(2012) 10 SCC 451, this Court has emphasized the need to accept the
11
testimony of a child with caution after substantial corroboration before
acting upon it. It was held that:
"36. It is a settled principle of law that a child
witness can be a competent witness provided
statement of such witness is reliable, truthful and
is corroborated by other prosecution evidence. The
court in such circumstances can safely rely upon
the statement of a child witness and it can form
the basis for conviction as well. Further, the
evidence of a child witness and credibility thereof
would depend upon the circumstances of each
case. The only precaution which the court should
bear in mind while assessing the evidence of a
child witness is that the witness must be a reliable
one and his/her demeanour must be like any
other competent witness and that there exists no
likelihood of being tutored. There is no rule or
practice that in every case the evidence of such a
witness be corroborated by other evidence before a
conviction can be allowed to stand but as a rule of
prudence the court always finds it desirable to
seek corroboration to such evidence from other
reliable evidence placed on record. Further, it is
not the law that if a witness is a child, his evidence
shall be rejected, even if it is found reliable."
24. It is clear from the testimony of PW-8 that she is not an
eyewitness to the incident. She was aged about 9 years at the time of
the incident. Her evidence is fraught with inconsistencies. None of the
other witnesses have identified the appellants. Therefore, heavy
reliance was placed on the testimony of PW-8. She did not tell PW-1,
Badridas about the appellants while disclosing about the incident for
12
the first time. This is reflected from the FIR which has been registered
against unknown persons. In such circumstances, it is risky to rely
on the uncorroborated identification of the appellants at the instance
of PW-8, who has not disclosed about the appellants at the first
instance before PW-1 Badridas.
25. Shanti Bai, PW-3, wife of PW-1 has stated that PW-8 informed
her that her mother had gone to work. This is in direct contradiction
with the fact that as per the prosecution story, she was lying dead.
Chandni herself states that in the morning, she saw her grandmother
dead. Further, FIR records Badridas as saying that Chandni told him
that Subhadra Bai is lying dead in her room.
26. The testimony of PW-8 also contradicts with that of PW-10.
PW-10 states that herself and Anita had gone to the house of the
deceased at 3 A.M. and had seen the bodies of the deceased and also
the children. However, PW-8 states that she got up at 7.00 A.M. and
that wife of Tekram (Anita) opened the door.
27. The testimony of PW-8 also contradicts that of PW-1, Badridas.
According to PW-1, he was informed about the incident only at about
2 to 2.30 P.M. by Chandni. However, PW-8 states that "It is correct to
suggest that in the morning, I had told Badridas that who had killed
them. I did not know them."
13
28. At this stage, it is relevant to notice that there was an
unexplained delay in reporting the crime, as rightly pointed out by the
learned senior counsel for the appellants. PW-8 in her deposition has
stated that when she woke up in the morning, her room was locked
from outside. When she shouted from inside, wife of Tekram (Anita)
opened the door. This version is further corroborated by PW-10, Dan
Bai, who has stated that in the morning at about 3 a.m. on Monday
that Anita had opened the door of their house from outside. The
children were inside the room. Amrika Bai, Kondi, Subhadra Bai and
Shri Bai were lying dead. Though, Anita had opened the door at about
3 a.m., it is unexplained why PW-8 did not inform anyone till 4 pm
and the same was also unreported by PW-10, even though the police
station was at a distance of some six kilometers. This also raises
question about veracity of the statement of PW-8, Chandni.
29. The second circumstance relied upon by the prosecution is the
evidence of recovery. Under Section 27 of the Indian Evidence Act, it
is not the discovery of every fact that is admissible but the discovery of
relevant fact is alone admissible. Relevancy is nothing but the
connection or the link between the facts discovered with the crime.
The recovery of the motorcycle is sought to be relied upon as a
circumstance against the appellants. There is nothing on record to
show that the motorcycle recovered at the instance of appellant No.1, belongs to him. PW-13, IO, in his cross-examination admits that he
does not know whether the appellant No.1 is the owner of the
motorcycle. He further admits that no attempts were made by him to
enquire about the owner of the vehicle.
30. Testimony of PWs 4 and 5 is also unreliable since it contradicts
that of PW-10. As per PW-10, herself and Anita had seen the bodies of
the deceased at 3 a.m. She did not see the assailants and does not
mention anything about the motorcycle. Hence, there is no occasion
for the assailants of the deceased to remain in the house and hence
the motorcycle would not be outside the house of the deceased at 4
p.m. PWs 4 and 5 contradict each other. While PW-4 states that the
motorcycle was of Bajaj Company, PW-5 mentions it as a motorcycle
from Hero Honda Company. PW-5 in his examination-in-chief says
that he had moved the motorcycle to allow the tractor to pass.
However, in his cross-examination, he says that he did not move the
motorcycle and it was PW-4, who moved it. PW-5 does not even state
the day or month when he saw the motorcycle.
31. PW-2 was the witness to the seizure of the motorcycle. According
to him, the motorcycle was red in colour. However, as per the seizure
memo, the recovered motorcycle was black in colour. This makes the
recovery of the motorcycle unreliable. It is relevant to state that the
15
police recorded the statement of PWs 4 and 5 after delay of over two
months.
32. Coming to the recovered articles, the silver-patti recovered at the
instance of the appellants, is alleged to have been that of the
deceased-Shri Bai. However, no witness identifies the silver-patti as
belonging to any of the deceased. PW-2 states that "the type of anklet
that was seized" is easily available in the market. Hence, in the
absence of any identification of the seized anklet, no reliance can be
placed on its recovery. The evidence of Rajesh Vaishnav, PW-2, who is
the witness to the seizure memo, is contrary to the memos brought on
record. The witness deposes that the statements of the accused were
recorded thrice, i.e. in Gidhauri Chowk, Khapridih and Barbhatha.
Moreover, he states that the seizures from appellant No.2 took place in
Kharri village and the memorandum of procedure took place in the
station. This is in direct contradiction with the seizure memo, which
states that seizures have taken place in Barbhatha.
33. The cash has not been traced back to the deceased as the box
from which articles were allegedly stolen has not been recovered or
seen by any witness. Even in the FIR, there is no averment of any
article or money being stolen or lost. Therefore, when the money
allegedly recovered is being sought to be relied upon as stolen from the
house of the deceased, the same is unreliable when there is nothing
16
on record to support the claim of theft or robbery from the scene of
crime.
34. Chandni, PW-8 has deposed that wife of Tekram (Smt. Anita)
had opened the door at 3.00 A.M. She has not been examined by the
prosecution and no reasons have been assigned to explain this
anomaly. Considering the conflicting statements of the witnesses
examined by the prosecution, Anita would be in a position to have
seen the appellants at the house around 3 A.M. She would have been
the first person to have seen the deceased persons and deposed about
the circumstances after the incident. It is also relevant that there
were other three children present in the house at the time of the
incident. No attempts have been made to examine them as well.
Thus, the best evidence which would have been thrown light on the
controversy in question has been withheld.
35. Sohandas, PW-9 has been relied on for corroborating the
testimony of Chandni, the child witness. Reliance has been placed on
her witness to show the presence of the appellants at the house.
Sohandas had deposed only on the basis of a telephone call from
Amrika Bai that Digamber has come to see Kondi. PW-9 does not
know the name of Ghirdhari. He has referred to a boy accompanying
appellant No.1, which is not sufficient to show the acquaintance. He
17
has not seen the appellants coming into the house. Therefore, his
evidence is not sufficient to place the appellants at the scene of crime.
36. The expert, who examined the articles at the place of occurrence
and found some finger prints, has not been examined. The person
who took the sample finger prints has not been examined. The finger
prints had been lifted on 17.12.2012 whereas the articles were seized
on 18.12.2012. There is no explanation about why the articles were
just left at the scene after developing the finger prints and why they
were not seized and sent for analysis on the same day. Further, no
prints have been found on the doors or the steel almirah to
substantiate the robbery. The examination of expert is crucial
especially if reliance is placed on the finger print report to suspect the
guilt of the appellant. PW-12, Panch witness to the seizure of bottles
states that the bottle was "lying near the door of the courtyard was
seized." This makes the process of the lifting the print suspicious.
37. The shirt of appellant No. 2 recovered from him in pursuance of
his statement under Section 27 of the Evidence Act is allegedly
matched with the small broken button found at the scene of crime.
This has been relied upon by the courts below as another
circumstance to corroborate the presence of the appellants at the
scene of crime. However, there is nothing on record to show that the
shirt is unique and cannot be matched with the shirt of any other
18
person. PW-13 has admitted in his testimony that shirts of the same
kind are easily available in the market. In such circumstances, it
cannot be conclusively proved that the shirts are in any way unique to
the 'appellants' shirt to the exclusion of everyone else. Therefore, the
reliance placed with analysis of the shirt in the absence of any unique
make thereof is improper.
38. The forensic evidence against the appellants to prove their
presence at the scene of crime is insufficient. The findings of the hair
analysis are also inconclusive. The report only concluded the
specimen to the human hair. The same is not sufficient to
substantiate the presence of the appellants.
39. The prosecution has alleged robbery as motive for the
commission of the offence. It is sought to be sustained by the recovery
of some cash and a pair of silver patti that has not been identified by
any witness. The site plan panchanama shows that gold ornaments,
pearl necklace, silver ornaments, etc. were left behind on the person of
the deceased. It is not explained as to why appellants would intend to
commit robbery but leave expensive ornaments behind. The 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.
19
This has unsubstantiated the entire motive for the commission of the
offence, as alleged by the prosecution.
40. The prosecution has relied upon the evidence of PW-8 to show
that the accused and victims were last seen together. It is settled that
the circumstance of last seen together cannot by itself form the basis
of holding accused guilty of offence. If there is any credible evidence
that just before or immediately prior to the death of the victims, they
were last seen along with the accused at or near about the place of
occurrence, the needle of suspicion would certainly point to the
accused being the culprits and this would be one of the strong factors
or circumstances inculpating them with the alleged crime purported
on the victims. However, if the last seen evidence does not inspire the
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 the time of
seeing and recovery of dead body.
41. In Arjun Marik & Ors. v. State of Bihar, 1994 Supp (2) SCC
372, it has been held as under:-
"31. Thus the evidence that the appellant had gone
to Sitaram in the evening of 19-7-1985 and had
stated in the night at the house of deceased
Sitaram is very shaky and inconclusive. Even if it
is accepted that they were there it would at best
amount to be the evidence of the appellants having
been seen last together with the deceased. But it
20
is settled law that the only circumstance of last
seen will not complete the chain of circumstances
to record the finding that it is consistent only with
the hypothesis of the guilt of the accused and,
therefore, no conviction on that basis alone can be
founded".
42. In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC, 715, the
Court has reiterated that the last seen together does not by itself lead
to the inference that it was the accused who committed the crime. It
is held thus:
"12. The circumstance of last seen together does
not by itself and necessarily lead to the inference
that it was the accused who committed the crime.
There must be something more establishing connectivity
between the accused and the crime. Mere
non-explanation on the part of the appellant, in
our considered opinion, by itself cannot lead to
proof of guilt against the appellant".
43. PW-8 in her evidence has stated that the accused had come one
day before in the night, and next day, Amrika, Mala, Badi Amma,
Amma and Kondi Didi had died. She is a child witness. We have
already noticed that she has not witnessed the incident. PW-1 in his
evidence says that PW-8 had come to his house at 2.00 to 2.30 P.M.
and informed him about the death of the deceased persons. PW-8 has
not disclosed the identity of the appellants to PW-1. That is why the
FIR was registered against unknown persons. We have also noticed
the inconsistencies in her evidence apart from the fact that the other
children present in the house on that day were not examined. There is
a substantial loss of time from when PW-8 saw the deceased and the
appellants together on 16.12.2012 and when the deceased were found
on 17.12.2012. In such circumstances, it is difficult to draw an
inference that the appellants had committed the crime.
44. In view of the above, the appeals succeed and are allowed. The
judgment and order passed by the High Court of Chhattisgarh at
Bilaspur dated 30.04.2015 in Criminal Reference No.3 of 2014 and
Criminal Appeal Nos. 536 of 2014 and 537 of 2014 are hereby set
aside. The judgment and order dated 14.05.2014 passed by the
Sessions Judge, Baloda Bazar, Chhattisgarh in Sessions Case No.5 of
2014 is also set aside. The appellants/accused are hereby acquitted
for the offences for which they were tried and they shall be released
forthwith, unless required in any other case/cases.
…………………………………J.
(A.K. SIKRI)
…………………………………J.
(S. ABDUL NAZEER)
…………………………………J.
(M.R. SHAH)
New Delhi;
March 5, 2019.
Print Page
evidence of recovery. Under Section 27 of the Indian Evidence Act, it
is not the discovery of every fact that is admissible but the discovery of
relevant fact is alone admissible. Relevancy is nothing but the
connection or the link between the facts discovered with the crime.
The recovery of the motorcycle is sought to be relied upon as a
circumstance against the appellants. There is nothing on record to
show that the motorcycle recovered at the instance of appellant No.1, belongs to him. PW-13, IO, in his cross-examination admits that he
does not know whether the appellant No.1 is the owner of the
motorcycle. He further admits that no attempts were made by him to
enquire about the owner of the vehicle.
30. Testimony of PWs 4 and 5 is also unreliable since it contradicts
that of PW-10. As per PW-10, herself and Anita had seen the bodies of
the deceased at 3 a.m. She did not see the assailants and does not
mention anything about the motorcycle. Hence, there is no occasion
for the assailants of the deceased to remain in the house and hence
the motorcycle would not be outside the house of the deceased at 4
p.m. PWs 4 and 5 contradict each other. While PW-4 states that the
motorcycle was of Bajaj Company, PW-5 mentions it as a motorcycle
from Hero Honda Company. PW-5 in his examination-in-chief says
that he had moved the motorcycle to allow the tractor to pass.
However, in his cross-examination, he says that he did not move the
motorcycle and it was PW-4, who moved it. PW-5 does not even state
the day or month when he saw the motorcycle.
31. PW-2 was the witness to the seizure of the motorcycle. According
to him, the motorcycle was red in colour. However, as per the seizure
memo, the recovered motorcycle was black in colour. This makes the
recovery of the motorcycle unreliable.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 428-430 OF 2019
(Arising out of S.L.P. (Crl.) Nos.5530-5532 of 2015)
DIGAMBER VAISHNAV Vs STATE OF CHHATTISGARH
S.ABDUL NAZEER, J.
Dated:March 5, 2019.
1. Leave granted.
2. These appeals have been preferred by Digamber Vaishnav and
Girdhari Vaishnav challenging the judgment and order dated
30.04.2015 passed by the High Court of Chhattisgarh at Bilaspur, in
Criminal Reference No.3 of 2014, affirming the death sentence
imposed by the Sessions Judge, Baloda Bazar and dismissing the
criminal appeal Nos. 536 of 2014 and 537 of 2014 filed by them
challenging the aforesaid judgment and order of the Sessions Judge.
2
3. The prosecution story in brief is that the complainant, Badridas
Vaishnav lives in village Khapridih. He is a retired teacher.
Bhuneshwar was his brother. Both were living in separate mohallas.
Bhuneshwar Das had two wives, namely, Shri Bai and Subhadra Bai.
From Shri Bai, Bhuneshwar had seven daughters. From Subhadra
Bai, he had five daughters and a son. Bhuneshwar Das had expired
two years back. Mala, Kondi, Chandni, Nandini, Sharda and son
Govinda were residing in the house apart from Shri Bai and
Subhadra.
4. On 17.12.2012, at about 4 p.m., Chandni came to the house of
PW-1, Badridas and informed him that Shri Bai, Subhadra, Kondi,
Amrika and Mala Bai are lying dead in the courtyard and in a room.
The complainant along with his wife Shanti Bai and Chandni
immediately rushed to the house of Bhuneshwar and saw that Amrika
and Mala Bai were lying dead at parchhi and Shri Bai, Subhadra and
Kondi were lying dead in the room. There was bleeding from the nose
and mouth of deceased and there were marks of injuries on the neck.
5. The complainant lodged the report of the occurrence in Police
Outpost Gidhouri, where report (Exhibit P-6) was registered as per the
statement of the complainant which was registered as FIR in Crime
No.430/12 in the Police Station Bilaigarh. Marg intimations of
Subhadra Bai, Shri Bai, Kondi, Mala Bai and Amrika Bai were
3
registered as per the information given by Badridas. Witnesses were
summoned for the examination of the dead body of the deceased.
Panchanama of the deceased was prepared in the presence of the
witnesses. The doctor submitted post-mortem reports after conducting
post-mortem of all the deceased. The cause of death of all the
deceased was asphyxia due to strangulation and the deaths were
homicidal in nature. After post-mortem report, the dead bodies of all
the deceased persons were handed over to their relative Badridas for
cremation.
6. The investigating officer drew the map of the place of occurrence
in the presence of the witnesses. The police seized a bottle of Golden
Goa Whiskey (made of glass) and a plastic torch which were lying at
the place of occurrence. Six strands of black hair stuck between the
fingers of right hand of the deceased Kondi, two white coloured
buttons lying between dead bodies, blood stained soil, plain soil and
one woolen shawl were also seized from the place of occurrence. The
police also seized a shirt worn by the appellant No.1. Memorandum
statement of the accused Digamber was recorded as per his dictation
wherein he stated that he has kept the motorcycle at the house of
Girdhari and Rs.3000/- and anklet (pair patti) was kept in his house.
A sum of Rs.3000/- and anklet were seized after taking it out from the
pocket of trousers of Digamber. Memorandum statement of accused
4
Girdhari was recorded wherein he stated that he has concealed
Rs.2600/- and pair patti in carry bag at his house. Cash and a pair
patti kept in a plastic carry bag were produced by the accused
Girdhari from inside his house which were seized. Shirt worn by
accused Digamber was removed and seized and one white coloured
shirt with two missing buttons was seized from the accused Girdhari.
Consent panchanama was prepared for taking the hair (of head) of
accused Digamber and Girdhari and the hair (of head) of accused were
seized. Seized articles were sent to the Forensic Science Laboratory.
7. An application was made to finger print expert for examination of
finger prints on the wine bottle seized from the place of occurrence.
Report of Police Headquarter (Finger Prints) was received, according to
which finger prints of accused Digamber were found on the bottle of
Golden Goa Whiskey. FSL Report regarding button of the shirt of the
appellants and the buttons seized from the place of occurrence was
also received wherein two buttons and threads were stated to be
similar.
8. The police recorded the statement of PW-1, Badridas, Sheetal
Das, Smt. Shanti Bai, Kumari Chandni, PW-8, Anita Bai and Dan Bai,
Sohandas, PW-9 under Section 161 of Cr.P.C. After completion of
investigation, chargesheet was filed in the court of Judicial Magistrate,
who committed the case to the Sessions Court.
5
9. In order to prove their case, the prosecution examined 14
witnesses. The appellants were also examined under Section 313 of
the Cr.P.C. wherein they pleaded that they are innocent and have been
falsely implicated in the offence.
10. The Sessions Court by its judgment dated 14.05.2014 came to
the conclusion that prosecution has successfully proved beyond doubt
that the appellants have committed robbery in the house of the
deceased persons and committed murder of all the five ladies. Each of
the appellants was sentenced with R.I. for ten years and fine of
Rs.500/-, in default of payment of fine, they will further undergo one
month's R.I. for the offence under Section 394 read with Section 34 of
IPC. They were also sentenced with capital punishment for the offence
under Section 302 read with Section 34 IPC and ordered that they will
be hanged till death.
11. The Death Reference under Section 366(1) of the Cr.P.C. was sent
to the High Court for confirmation. The appellants preferred separate
appeals before the High Court. As noticed above, the High Court by
its judgment dated 30.04.2015 affirmed the judgment of the Sessions
Court.
12. Appearing for the appellants Sh. S. Nagamuthu, learned senior
counsel has mainly contended that there was an unexplained delay in
reporting the offence. Secondly, the courts below have mainly relied
6
on the testimony of PW-8. PW-8 is a child witness who was present in
the house at the time of the incident. She is not a witness to the
actual incident. Her testimony has not been corroborated. Therefore,
it is risky to rely on uncorroborated identification of the appellants at
her instance. It is further argued that the evidence of recoveries made
under Section 27 of the Indian Evidence Act is also unreliable. The
recovery of motorcycle is also unreliable and that the articles
recovered are not connected to the crime. The testimony of PW-9 is
hearsay and cannot be relied upon by the prosecution. Even the
finger print report cannot be relied on. Finally, he submits that the
evidence of last seen is insufficient to establish the guilt.
13. On the other hand, Sh. Atul Jha, learned counsel appearing for
the respondent, has supported the judgment of the courts below. He
prays for dismissal of the appeals.
14. We have carefully considered the submissions of the learned
counsel made at the Bar and perused the materials placed on record.
15. One of the fundamental principles of criminal jurisprudence is
undeniably that the burden of proof squarely rests on the prosecution
and that the 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 the place of legal proof. The onus of the prosecution
7
cannot be discharged by referring to very strong suspicion and
existence of highly suspicious factors to inculpate the accused nor
falsity of defence could take the place of proof which the prosecution
has to establish in order to succeed, though a false plea by the defence
at best, be considered as an additional circumstance, if other
circumstances unfailingly point to the guilt.
16. This Court in Jaharlal Das v. State of Orissa, (1991) 3 SCC 27,
has held that even if the offence is a shocking one, the gravity of
offence cannot by itself overweigh as far as legal proof is concerned. In
cases depending highly upon the circumstantial evidence, there is
always a danger that the conjecture or suspicion may take the place of
legal proof. The court has to be watchful and ensure that the
conjecture and suspicion do not take the place of legal proof. The
court must satisfy itself that various circumstances in the chain of
evidence should be established clearly and that the completed chain
must be such as to rule out a reasonable likelihood of the innocence of
the accused. In order to sustain the conviction on the basis of
circumstantial evidence, the following three conditions must be
satisfied:
i.) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly
established;
ii.) those circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused; and
8
iii.) the circumstances, taken cumulatively, should form a chain
so complete that there is no escape from the conclusion that
within all human probability the crime was committed by
the accused and none else, and it should also be incapable
of explanation on any other hypothesis than that of the guilt
of the accused.
17. In Varkey Joseph v. State of Kerala, 1993 Suppl (3) SCC 745,
this Court has held that suspicion is not the substitute for proof.
There is a long distance between 'may be true' and 'must be true' and
the prosecution has to travel all the way to prove its case beyond
reasonable doubt.
18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this
Court, while examining the distinction between 'proof beyond
reasonable doubt' and 'suspicion' has held as under:
"13. Suspicion, however grave it may be, cannot
take the place of proof, and there is a large difference
between something that “may be” proved, and
something that “will be proved”. In a criminal trial,
suspicion no matter how strong, cannot and must
not be permitted to take place of proof. This is for
the reason that the mental distance between “may
be” and “must be” is quite large, and divides vague
conjectures from sure conclusions. In a criminal
case, the court has a duty to ensure that mere
conjectures or suspicion do not take the place of
legal proof. The large distance between “may be”
true and “must be” true, must be covered by way
of clear, cogent and unimpeachable evidence produced
by the prosecution, before an accused is
condemned as a convict, and the basic and golden
rule must be applied. In such cases, while keeping
in mind the distance between “may be” true and
“must be” true, the court must maintain the vital
9
distance between mere conjectures and sure conclusions
to be arrived at, on the touchstone of dispassionate
judicial scrutiny, based upon a complete
and comprehensive appreciation of all features
of the case, as well as the quality and credibility
of the evidence brought on record. The court
must ensure, that miscarriage of justice is avoided,
and if the facts and circumstances of a case so demand,
then the benefit of doubt must be given to
the accused, keeping in mind that a reasonable
doubt is not an imaginary, trivial or a merely probable
doubt, but a fair doubt that is based upon
reason and common sense".
19. It is also well-settled principle that in criminal cases, if two views
are possible on evidence adduced in the case, one binding to the guilt
of the accused and the other is to his innocence, the view which is
favourable to the accused, should be adopted. This principle has a
special relevance in cases wherein the guilt of the accused is sought to
be established by circumstantial evidence [See Kali Ram v. State of
Himachal Pradesh, (1973) 2 SCC 808].
20. Bearing these principles in mind, we shall now consider the
contentions of the learned counsel for the parties. In coming to the
conclusion that the accused have committed the offence, the
prosecution has relied on (i) Testimony of child witness Kumari
Chandni (PW8); (ii) The recoveries made under Section 27 of the
Evidence Act; (iii) The fingerprint report; (iv) FSL report; (v) Motive of
committing robbery; and (vi) Evidence of last seen together.
10
21. The case of the prosecution is mainly dependent on the testimony
of Chandni, the child witness, who was examined as PW-8. Section
118 of the Evidence Act governs competence of the persons to testify
which also includes a child witness. Evidence of the child witness and
its credibility could depend upon the facts and circumstances of each
case. There is no rule of practice that in every case the evidence of a
child witness has to be corroborated by other evidence before a
conviction can be allowed to stand but as a prudence, the court
always finds it desirable to seek corroboration to such evidence from
other reliable evidence placed on record. Only precaution which the
court has to bear in mind while assessing the evidence of a child
witness is that witness must be a reliable one.
22. This Court has consistently held that evidence of a child witness
must be evaluated carefully as the child may be swayed by what
others tell him and he is an easy prey to tutoring. Therefore, the
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. [See
Panchhi and others v. State of U.P, (1998) 7 SCC 177, State of U.P.
v. Ashok Dixit and another, (2000) 3 SCC 70, and State of
Rajasthan v. Om Prakash, (2002) 5 SCC 745].
23. In Alagupandi alias Alagupandian v. State of Tamil Nadu,
(2012) 10 SCC 451, this Court has emphasized the need to accept the
11
testimony of a child with caution after substantial corroboration before
acting upon it. It was held that:
"36. It is a settled principle of law that a child
witness can be a competent witness provided
statement of such witness is reliable, truthful and
is corroborated by other prosecution evidence. The
court in such circumstances can safely rely upon
the statement of a child witness and it can form
the basis for conviction as well. Further, the
evidence of a child witness and credibility thereof
would depend upon the circumstances of each
case. The only precaution which the court should
bear in mind while assessing the evidence of a
child witness is that the witness must be a reliable
one and his/her demeanour must be like any
other competent witness and that there exists no
likelihood of being tutored. There is no rule or
practice that in every case the evidence of such a
witness be corroborated by other evidence before a
conviction can be allowed to stand but as a rule of
prudence the court always finds it desirable to
seek corroboration to such evidence from other
reliable evidence placed on record. Further, it is
not the law that if a witness is a child, his evidence
shall be rejected, even if it is found reliable."
24. It is clear from the testimony of PW-8 that she is not an
eyewitness to the incident. She was aged about 9 years at the time of
the incident. Her evidence is fraught with inconsistencies. None of the
other witnesses have identified the appellants. Therefore, heavy
reliance was placed on the testimony of PW-8. She did not tell PW-1,
Badridas about the appellants while disclosing about the incident for
12
the first time. This is reflected from the FIR which has been registered
against unknown persons. In such circumstances, it is risky to rely
on the uncorroborated identification of the appellants at the instance
of PW-8, who has not disclosed about the appellants at the first
instance before PW-1 Badridas.
25. Shanti Bai, PW-3, wife of PW-1 has stated that PW-8 informed
her that her mother had gone to work. This is in direct contradiction
with the fact that as per the prosecution story, she was lying dead.
Chandni herself states that in the morning, she saw her grandmother
dead. Further, FIR records Badridas as saying that Chandni told him
that Subhadra Bai is lying dead in her room.
26. The testimony of PW-8 also contradicts with that of PW-10.
PW-10 states that herself and Anita had gone to the house of the
deceased at 3 A.M. and had seen the bodies of the deceased and also
the children. However, PW-8 states that she got up at 7.00 A.M. and
that wife of Tekram (Anita) opened the door.
27. The testimony of PW-8 also contradicts that of PW-1, Badridas.
According to PW-1, he was informed about the incident only at about
2 to 2.30 P.M. by Chandni. However, PW-8 states that "It is correct to
suggest that in the morning, I had told Badridas that who had killed
them. I did not know them."
13
28. At this stage, it is relevant to notice that there was an
unexplained delay in reporting the crime, as rightly pointed out by the
learned senior counsel for the appellants. PW-8 in her deposition has
stated that when she woke up in the morning, her room was locked
from outside. When she shouted from inside, wife of Tekram (Anita)
opened the door. This version is further corroborated by PW-10, Dan
Bai, who has stated that in the morning at about 3 a.m. on Monday
that Anita had opened the door of their house from outside. The
children were inside the room. Amrika Bai, Kondi, Subhadra Bai and
Shri Bai were lying dead. Though, Anita had opened the door at about
3 a.m., it is unexplained why PW-8 did not inform anyone till 4 pm
and the same was also unreported by PW-10, even though the police
station was at a distance of some six kilometers. This also raises
question about veracity of the statement of PW-8, Chandni.
29. The second circumstance relied upon by the prosecution is the
evidence of recovery. Under Section 27 of the Indian Evidence Act, it
is not the discovery of every fact that is admissible but the discovery of
relevant fact is alone admissible. Relevancy is nothing but the
connection or the link between the facts discovered with the crime.
The recovery of the motorcycle is sought to be relied upon as a
circumstance against the appellants. There is nothing on record to
show that the motorcycle recovered at the instance of appellant No.1, belongs to him. PW-13, IO, in his cross-examination admits that he
does not know whether the appellant No.1 is the owner of the
motorcycle. He further admits that no attempts were made by him to
enquire about the owner of the vehicle.
30. Testimony of PWs 4 and 5 is also unreliable since it contradicts
that of PW-10. As per PW-10, herself and Anita had seen the bodies of
the deceased at 3 a.m. She did not see the assailants and does not
mention anything about the motorcycle. Hence, there is no occasion
for the assailants of the deceased to remain in the house and hence
the motorcycle would not be outside the house of the deceased at 4
p.m. PWs 4 and 5 contradict each other. While PW-4 states that the
motorcycle was of Bajaj Company, PW-5 mentions it as a motorcycle
from Hero Honda Company. PW-5 in his examination-in-chief says
that he had moved the motorcycle to allow the tractor to pass.
However, in his cross-examination, he says that he did not move the
motorcycle and it was PW-4, who moved it. PW-5 does not even state
the day or month when he saw the motorcycle.
31. PW-2 was the witness to the seizure of the motorcycle. According
to him, the motorcycle was red in colour. However, as per the seizure
memo, the recovered motorcycle was black in colour. This makes the
recovery of the motorcycle unreliable. It is relevant to state that the
15
police recorded the statement of PWs 4 and 5 after delay of over two
months.
32. Coming to the recovered articles, the silver-patti recovered at the
instance of the appellants, is alleged to have been that of the
deceased-Shri Bai. However, no witness identifies the silver-patti as
belonging to any of the deceased. PW-2 states that "the type of anklet
that was seized" is easily available in the market. Hence, in the
absence of any identification of the seized anklet, no reliance can be
placed on its recovery. The evidence of Rajesh Vaishnav, PW-2, who is
the witness to the seizure memo, is contrary to the memos brought on
record. The witness deposes that the statements of the accused were
recorded thrice, i.e. in Gidhauri Chowk, Khapridih and Barbhatha.
Moreover, he states that the seizures from appellant No.2 took place in
Kharri village and the memorandum of procedure took place in the
station. This is in direct contradiction with the seizure memo, which
states that seizures have taken place in Barbhatha.
33. The cash has not been traced back to the deceased as the box
from which articles were allegedly stolen has not been recovered or
seen by any witness. Even in the FIR, there is no averment of any
article or money being stolen or lost. Therefore, when the money
allegedly recovered is being sought to be relied upon as stolen from the
house of the deceased, the same is unreliable when there is nothing
16
on record to support the claim of theft or robbery from the scene of
crime.
34. Chandni, PW-8 has deposed that wife of Tekram (Smt. Anita)
had opened the door at 3.00 A.M. She has not been examined by the
prosecution and no reasons have been assigned to explain this
anomaly. Considering the conflicting statements of the witnesses
examined by the prosecution, Anita would be in a position to have
seen the appellants at the house around 3 A.M. She would have been
the first person to have seen the deceased persons and deposed about
the circumstances after the incident. It is also relevant that there
were other three children present in the house at the time of the
incident. No attempts have been made to examine them as well.
Thus, the best evidence which would have been thrown light on the
controversy in question has been withheld.
35. Sohandas, PW-9 has been relied on for corroborating the
testimony of Chandni, the child witness. Reliance has been placed on
her witness to show the presence of the appellants at the house.
Sohandas had deposed only on the basis of a telephone call from
Amrika Bai that Digamber has come to see Kondi. PW-9 does not
know the name of Ghirdhari. He has referred to a boy accompanying
appellant No.1, which is not sufficient to show the acquaintance. He
17
has not seen the appellants coming into the house. Therefore, his
evidence is not sufficient to place the appellants at the scene of crime.
36. The expert, who examined the articles at the place of occurrence
and found some finger prints, has not been examined. The person
who took the sample finger prints has not been examined. The finger
prints had been lifted on 17.12.2012 whereas the articles were seized
on 18.12.2012. There is no explanation about why the articles were
just left at the scene after developing the finger prints and why they
were not seized and sent for analysis on the same day. Further, no
prints have been found on the doors or the steel almirah to
substantiate the robbery. The examination of expert is crucial
especially if reliance is placed on the finger print report to suspect the
guilt of the appellant. PW-12, Panch witness to the seizure of bottles
states that the bottle was "lying near the door of the courtyard was
seized." This makes the process of the lifting the print suspicious.
37. The shirt of appellant No. 2 recovered from him in pursuance of
his statement under Section 27 of the Evidence Act is allegedly
matched with the small broken button found at the scene of crime.
This has been relied upon by the courts below as another
circumstance to corroborate the presence of the appellants at the
scene of crime. However, there is nothing on record to show that the
shirt is unique and cannot be matched with the shirt of any other
18
person. PW-13 has admitted in his testimony that shirts of the same
kind are easily available in the market. In such circumstances, it
cannot be conclusively proved that the shirts are in any way unique to
the 'appellants' shirt to the exclusion of everyone else. Therefore, the
reliance placed with analysis of the shirt in the absence of any unique
make thereof is improper.
38. The forensic evidence against the appellants to prove their
presence at the scene of crime is insufficient. The findings of the hair
analysis are also inconclusive. The report only concluded the
specimen to the human hair. The same is not sufficient to
substantiate the presence of the appellants.
39. The prosecution has alleged robbery as motive for the
commission of the offence. It is sought to be sustained by the recovery
of some cash and a pair of silver patti that has not been identified by
any witness. The site plan panchanama shows that gold ornaments,
pearl necklace, silver ornaments, etc. were left behind on the person of
the deceased. It is not explained as to why appellants would intend to
commit robbery but leave expensive ornaments behind. The 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.
19
This has unsubstantiated the entire motive for the commission of the
offence, as alleged by the prosecution.
40. The prosecution has relied upon the evidence of PW-8 to show
that the accused and victims were last seen together. It is settled that
the circumstance of last seen together cannot by itself form the basis
of holding accused guilty of offence. If there is any credible evidence
that just before or immediately prior to the death of the victims, they
were last seen along with the accused at or near about the place of
occurrence, the needle of suspicion would certainly point to the
accused being the culprits and this would be one of the strong factors
or circumstances inculpating them with the alleged crime purported
on the victims. However, if the last seen evidence does not inspire the
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 the time of
seeing and recovery of dead body.
41. In Arjun Marik & Ors. v. State of Bihar, 1994 Supp (2) SCC
372, it has been held as under:-
"31. Thus the evidence that the appellant had gone
to Sitaram in the evening of 19-7-1985 and had
stated in the night at the house of deceased
Sitaram is very shaky and inconclusive. Even if it
is accepted that they were there it would at best
amount to be the evidence of the appellants having
been seen last together with the deceased. But it
20
is settled law that the only circumstance of last
seen will not complete the chain of circumstances
to record the finding that it is consistent only with
the hypothesis of the guilt of the accused and,
therefore, no conviction on that basis alone can be
founded".
42. In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC, 715, the
Court has reiterated that the last seen together does not by itself lead
to the inference that it was the accused who committed the crime. It
is held thus:
"12. The circumstance of last seen together does
not by itself and necessarily lead to the inference
that it was the accused who committed the crime.
There must be something more establishing connectivity
between the accused and the crime. Mere
non-explanation on the part of the appellant, in
our considered opinion, by itself cannot lead to
proof of guilt against the appellant".
43. PW-8 in her evidence has stated that the accused had come one
day before in the night, and next day, Amrika, Mala, Badi Amma,
Amma and Kondi Didi had died. She is a child witness. We have
already noticed that she has not witnessed the incident. PW-1 in his
evidence says that PW-8 had come to his house at 2.00 to 2.30 P.M.
and informed him about the death of the deceased persons. PW-8 has
not disclosed the identity of the appellants to PW-1. That is why the
FIR was registered against unknown persons. We have also noticed
the inconsistencies in her evidence apart from the fact that the other
children present in the house on that day were not examined. There is
a substantial loss of time from when PW-8 saw the deceased and the
appellants together on 16.12.2012 and when the deceased were found
on 17.12.2012. In such circumstances, it is difficult to draw an
inference that the appellants had committed the crime.
44. In view of the above, the appeals succeed and are allowed. The
judgment and order passed by the High Court of Chhattisgarh at
Bilaspur dated 30.04.2015 in Criminal Reference No.3 of 2014 and
Criminal Appeal Nos. 536 of 2014 and 537 of 2014 are hereby set
aside. The judgment and order dated 14.05.2014 passed by the
Sessions Judge, Baloda Bazar, Chhattisgarh in Sessions Case No.5 of
2014 is also set aside. The appellants/accused are hereby acquitted
for the offences for which they were tried and they shall be released
forthwith, unless required in any other case/cases.
…………………………………J.
(A.K. SIKRI)
…………………………………J.
(S. ABDUL NAZEER)
…………………………………J.
(M.R. SHAH)
New Delhi;
March 5, 2019.
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