5 May 2023 6:03 AM GMT
The Supreme Court on Thursday set aside the conviction of a murder accused on the ground that the evidence of last seen on which the conviction was based, failed to make a complete chain of circumstantial evidence.While allowing the appeal, the Court also reminded trial judges of their duty to participate in the trial effectively to elicit truth, rather than watching the proceedings like a...
The Supreme Court on Thursday set aside the conviction of a murder accused on the ground that the evidence of last seen on which the conviction was based, failed to make a complete chain of circumstantial evidence.
While allowing the appeal, the Court also reminded trial judges of their duty to participate in the trial effectively to elicit truth, rather than watching the proceedings like a mute spectator. In this regard, the Court referred to Section 165 of the Indian Evidence Act, which empowers the trial judge to put questions during trial.
The Court observed:
“We are afraid that by pointing out the weakness in the cross examination of the defense the presiding judge indirectly admits to the weakness in the trial itself. We say this for the reasons that under Section 165 of the Act, a trial judge has tremendous powers to “ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant”. It is in fact the duty of the Trial Judge to do so if it is felt that some important and crucial question was left from being asked from a witness. The purpose of the trial is after all to reach to the truth of the matter.”
It was further observed by the Court that the duty of the presiding judge of a criminal trial is not to watch the proceedings as a spectator or a recording machine but he has to participate in the trial “by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth.”
The division bench of Justice Sudhanshu Dhulia and Justice Sanjay Kumar noted:
“In our considered view, in the present case the prosecution has not been able to prove its case beyond reasonable doubt. The evidence of last seen, only leads upto a point and no further. It fails to link it further to make a complete chain. All we have here is the evidence of last seen, which as we have seen looses much of its weight under the circumstances of the case, due to the long duration of time between last seen and the possible time of death. What we can call as discovery here under Section 27 of the Act, is the discovery of ‘Parna’ and watch of the deceased. This evidence in itself is not sufficient to fix guilt on the appellant.”
The appellant-accused along with the other co-accused were charged with kidnapping and murder of a person in the year 2000.
The Trial Court convicted both the accused persons for offences under Section 302, Section 364, Section 392, Section 394, Section 201 and Section 34 of IPC and awarded life sentence under Section 302 IPC, and lesser sentence on the remaining convictions, vide order dated July 11, 2003.
The Punjab and Haryana High Court dismissed the appeal filed by the appellant-accused and upheld the conviction and sentence of the Trial Court vide order dated May 31, 2017.
Hence, the appellant-accused filed the appeal before the Supreme Court.
The Apex Court observed that the case of the prosecution is entirely based on circumstantial evidence and the ‘evidence’ of last seen and the “discoveries” made from the information given by the appellant.
The Court further noted that the case of prosecution rests on two circumstantial evidences:
The Court noted:
“In a case of circumstantial evidence, motive too is of significance. As far as motive is concerned, the prosecution case is that the two accused killed the deceased only to steal his tractor. The deceased in this case was a 42yearold well-built man of 6 feet 2 inches in height (Post Mortem report dated 12.05.2000). The prosecution case is that the deceased was kidnapped and murdered by the two accused, for his tractor which they had robbed from the deceased, after putting him to death. Now this tractor the accused had in any case abandoned, and did nothing to recover it till one of them was caught on 12.05.2000. In short, the ‘motive’ is not very convincing.”
The Court pointed that the facts that led to the certain discoveries were already known to the police in the earlier discovery made by the co-accused. The Court further noted that the discoveries which were made on the pointing out of co-accused cannot be read against the present appellant.
“If the disclosure has been made by the accused to the police while he was in their custody and such a disclosure leads to discovery of a fact then that discovery is liable to be read as evidence against the accused in terms of Section 27 of the Act. All the same, the distinguishing feature of such a discovery must be that such a disclosure must lead to the discovery of a ‘distinct fact’.”, the Court said.
It was pointed by the Court that Rigor mortis present in the body after 90 hours is unusual, though possible under certain circumstances and it was the duty of the prosecution to explain it. The Court further noted that the defense too failed to question it and the Court remained silent.
On the evidence of ‘last seen’ the Court noted:
“In this case, even if we take the time between the last seen and the approximate time of death as per the postmortem, which would go beyond 48 hours preceding the time of post-mortem the time of death can be stretched to the morning of May 9, 2000, which still begs an explanation from the prosecution as to the time gap, as the deceased was last seen with the two accused on 08.05.2000 at 7:00 P.M.”
The Court further noted that the evidence of last seen itself is on a weak footing, considering the long gap of time between last seen by PW-10 and the time of death of the deceased, Section 106 of the Evidence Act, 1872 would not be applicable to facts and the circumstances of the present case.
“In order to establish a charge of guilt on the accused, the chain of evidence must be completed and the chain must point out to one and only one conclusion, which is that it is only the accused who have committed the crime and none else. We are afraid the prosecution has not been able to discharge this burden.”, the Court opined.
The Court held that the evidence placed by the prosecution in this case does not pass muster the standard required in a case of circumstantial evidence.
Thus, the Court set aside the conviction and sentence imposed upon the appellant and directed his released forthwith.
Senior Advocate A Sirajudeeen appeared for the appellant.
Case Title: Dinesh Kumar v. The State of Haryana
Citation : 2023 LiveLaw (SC) 395
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