As per case facts, the appellant and a co-accused were convicted for murder and other offenses after the deceased, Gurmail Singh, was last seen with them. Gurmail Singh's body was ...
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.530 OF 2022
Dinesh Kumar ….Appellant
VERSUS
The State of Haryana ….Respondent
J U D G M E N T
SUDHANSHU DHULIA, J.
1.The 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
(‘IPC’), by the learned 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 the pendency of his appeal the coaccused Mange Ram
passed away on 24.10.2004, and his appeal stood abated vide order
dated 11.05.2017. The appeal of the present appellant was dismissed 2023 INSC 493
and the conviction and sentence of the trial court was upheld by the
High Court, vide its order dated 31.05.2017. His SLP before this Court
was given leave on 28.03.2022.
We have heard at length, the learned senior counsel Mr. A.
Sirajudeen for the appellant and Mr. Dinesh Chander Yadav, learned
Additional Advocate General for the State of Haryana.
2.The case of the prosecution is entirely based on circumstantial
evidence. The ‘evidence’ of last seen and the “discoveries” made from
the information given by the appellant. The facts of the case are as
under:
3.The deceased Gurmail Singh was a resident of villageDhimo,
District, Yamuna Nagar, Haryana. On the morning of 08.05.2000, he
left his village on his tractor, for the nearby village of ‘Dadupur’,
(which is at a distance of 1520 kilometers). In Dadupur he was to
meet his sister and his brotherinlaw. He was with his sister and
brotherinlaw between 2.00 P.M. to 5.30 P.M on 08.05.2000 and
according to his brotherinlaw (PW1) he left their house at about
5.30 P.M on 08.05.2000. Gurmail Singh never returned to his village.
Meanwhile, Harbans Singh, the brother of the deceased (the two
brothers were staying together with their families in village Dhimo),
goes to village Dadupur on 11.05.2000 i.e. after 3 days, to enquire
from his sister about the whereabouts of their brother, when he is told
that the deceased had left their house on 08.05.2000 itself at about
5.30 P.M.!
Harbans Singh then lodges the F.I.R. at P.S Buria, District
Yamuna Nagar (Haryana), at 4.00 p.m on 11.05.2000. He states in
the F.I.R. that Gurmail Singh is his brother, and the two live together
as a joint family in village Dhimo. Then he narrates how his brother
left his village in the morning on 08.05.2000 on his tractor to meet
their sister, but has since not returned. He states that while he was
searching for his brother, he met his neighbour Karanjit Singh, at the
petrol pump of village Dadupur, who informed him that he had seen
Gurmail Singh on his tractor on 08.05.2000 at around 7.00 pm with
Mange Ram and Dinesh (the two accused), who were residents of
nearby villages. He promptly went to those villages to find out about
the whereabout of these two persons, when he was informed that they
were missing since 08.05.2000. He then states in his F.I.R. that these
two persons Mange Ram and Dinesh are known to be vagabonds and
they have kidnapped his brother in order to rob him of his tractor. A
case was then registered by Police on 11.05.2000 under Section 364
IPC.
The body of the deceased was recovered next day i.e. on
12.05.2000, at 1.30 P.M. from a canal. The inquest was conducted
the same day and the body was sent for postmortem. The post
mortem was conducted at about 4:15 P.M. on 12.05.2000 by Dr.
Sumesh Garg (PW4) and Dr. Ashok Kumar Sharma at Civil Hospital,
Jagadhri. The body was found to be swollen with the skin peeling off
from many places. Rigor mortis was found to be present in all four
limbs of the deceased, but was absent in the neck. The tongue and
lips of the deceased was dark red in colour and swollen and further
there was red coloured froth coming out from the mouth and nostrils.
There was a ligature mark of 53 cm x 8 cm around the neck, over the
thyroid and hyoid cartilage. The base of the ligature mark was hard
and the margins of the ligature mark were pale and parchment like.
The postmortem report further states that the ligature marks present
on the body disclosed an antemortem strangulation. The Pericardium
was found to be congested, with the left chamber of the heart to be
empty and the right chamber of the heart was found to have little
blood. Ultimately the cause of death was asphyxia due to
strangulation which was antemortem in nature.
The post mortem examination of the body shows that rigor mortis
was present in all the four limbs of the body, but was not there in the
neck. This was indicative of the fact that rigor mortis was receding
from the body. Generally speaking, rigor mortis sets in one to two
hours after the death, and develops from head to foot in about 12
hours. Rigor mortis then disappears in the same sequence i.e. first
from the head, then neck and then to the lower part of the body. In
northern India, rigor mortis lasts about 24 to 48 hours in winters and
18 to 36 hours in summers. All the same, there are many variables.
The body structure, and the health of the deceased, the fact that it
was kept in cold water and away from heat will all slow down the
process of rigor mortis
1
.
Rigor mortis disappears late in bodies which are immersed in cold
water.
2
In the case at hand, the body of the deceased was recovered
from a canal, and therefore the possibility that rigor mortis would still
remain in the body cannot be entirely ruled out, but this has nowhere
been explained. Although the exact time when the deceased died has
not come out but the prosecution case is that he was murdered by the
accused (Dinesh Kumar and Mange Ram) on 08.05.2000 itself. If this
is so, then the rigor mortis has remained in the body for about 90
hours, which is unusual. Moreover, the prosecution has not explained
this factor, and the defense has definitely not questioned Dr. Sumesh
Garg (PW4) on this aspect. But considering the importance of this
aspect this question should have been put to the prosecution and
particularly to the doctor who had done the post mortem. If not by the
defense then this question ought to have been put to the witness by
the Court under the powers vested with the Court under Section 165
1 A textbook of Medical Jurisprudence and Toxicology by Modi (Chapter 15, Pg. 342)
2 Ibid (Chapter 15, Pg. 342)
of the Indian Evidence Act, 1872 (for short ‘Act’). But we will come to
this in a while.
4.Meanwhile the coaccused Mange Ram was arrested on
12.05.2000 and the next day i.e., 13.05.2000, on the information
given by him to the police he was taken to the place which was
disclosed to be the place where he and Dinesh Kumar had killed the
deceased. From this place, two pairs of “chappals” (slippers) one
belonging to the appellant (Dinesh Kumar) and the other, belonging to
the coaccused Mange Ram, were recovered. Some burnt hair of the
deceased were also recovered from this place. Mange Ram then took
the police party to the canal from where the dead body was dropped.
5.On 14.05.2000 (i.e., the next day) Mange Ram led the police
party to the place where the tractor of the deceased was abandoned by
him and Dinesh Kumar. All the same, by the time the police party
reached that place, the tractor had already been discovered by the
local Police, and was in their custody at Rampur Police Station,
Saharnpur, Uttar Pradesh. The possession of the tractor was taken
from the local police, by the Investigating Officer.
6.The present appellant was arrested on 14.05.2000, from
‘Nandgarh’ village. On his disclosure a wrist watch, ‘Parna’ (turban)
and currency notes amounting to Rs. 250/ allegedly belonging to the
deceased were recovered from his residence. He then took the Police
to the same place as the coaccused Mange Ram had earlier taken
them to the two places i.e., the place where the deceased was killed
and the place where the tractor was abandoned
3
.
7.The evidence of last seen is of Karanjit Singh (PW10) who is the
neighbour of the complainant (PW11). PW10 had seen the deceased
along with the two accused i.e., Dinesh Kumar and Mange Ram at
about 7:00 P.M. on 08.05.2000. According to the witness the deceased
was driving the tractor and the two i.e., the appellant and Mange Ram
were sitting on the mudguard of the tractor.
8. As we can see the case of the prosecution rests on two
circumstantial evidences: (A) The disclosure given in the police
custody and the discovery on its basis and (B) The evidence of last
seen in the form of PW10. 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 wellbuilt 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
3 Meanwhile S.392/394/302 along with S.34 were added in the F.I.R. (dated 11.05.2000)
convincing.
The disclosure made by the appellant while in police custody,
which led to certain discoveries, such as the place where the stolen
tractor was abandoned, the place where the alleged crime was
committed, and the place where the body was thrown in the canal,
and also the discovery of ‘Parna’, burnt hair, wrist watch, and
currency notes of Rs.250/.
Section 27 of the Evidence Act reads as under :
“How much of information received from accused
may be proved—Provided that, when any fact is
deposed to as discovered in consequence of
information received from a person accused of any
offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession
or not, as relates distinctly to the fact thereby
discovered, may be proved.”
The above provision shows that discovery should be of a distinct
fact, the fact which has been discovered by disclosure of the one in
police custody. All the same, these facts were already in the
knowledge of the police in the earlier discovery made by the co
accused Mange Ram. The coaccused Mange Ram was arrested on
12.05.2000 and had led to these discoveries on 12
th
, 13
th
& 14
th
May.
The present appellant was arrested on May 14, 2000, and the alleged
discoveries made by him were later in time. The discoveries which
were made on the pointing out of coaccused Mange Ram 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 recovery of the stolen tractor, the place where the murder was
committed and the place where body was thrown in the canal were
facts which were already in the knowledge of the police, since it is the
case of the prosecution that the coaccused Mange Ram, who was
arrested by the police 2 days preceding the arrest of the present
appellant, had earlier led to the same discoveries on 12
th
, 13
th
& 14
th
of
May, 2000. So, this disclosure and discovery made thereafter cannot
be read against the present appellant. There cannot be a “discovery”
of an already discovered fact! What remains is the discovery of
currency notes, wrist watch, ‘Parna’ and hair. The forensic report of
hair only says that it belongs to ‘human’. The currency notes cannot
be really identified with the deceased. What remains is the watch and
the ‘Parna’, which has been identified with the deceased.
The second is the evidence of “last seen”. This is in the form of
PW10 Kartar Singh who is the neighbour of the complainant and who
had seen the appellant along with coaccused Mange Ram with the
deceased on 08.05.2000 at about 7.30 PM in the evening.
9.The admitted position is that the body of deceased was
discovered from the canal four days later i.e. on 12.05.2000 in the
afternoon and the postmortem was conducted at about 4.15 PM on
the same day i.e.12.05.2000. According to Postmortem report the
death had taken place more than 48 hours prior to the postmortem,
which would mean that death took place approximately before 4.00
PM on 10.05.2000. Although the autopsy reports normally do not give
precise time of death, but only indicate an approximate time or
duration, yet under normal circumstances in the present case, death
should have been on May 10, 2000 or May 9, 2000. All the same, the
case of the prosecution is that the deceased was killed on May 8, 2000
itself. If this be so then it was the duty of the prosecution to explain
as to how rigor mortis remained present in the body, even after four
days of the death. The possibility of the rigor mortis remaining in the
body for 90 hours cannot be ruled out completely, but this was never
explained by the prosecution. It was the duty of the prosecution to
explain the unusual circumstances under which rigor mortis remained
present in the body, even for 90 hours, in the month of May.
The High Court has only relied upon the evidence of PW4 Dr.
Sumesh Garg who had conducted the postmortem, who gave his
opinion that the death occurred more than 48 hours before the time of
the postmortem and therefore the deceased was killed by Mange Ram
and present appellant on 08.05.2000 this is what has been said by the
High Court:
“According to PW4 Dr. Sumesh Garg, who alongwith
Dr. Ashok Kumar Sharma had conducted post
mortem examination on dead body of Gurmail Singh
on 12.05.2000. The probable duration between
injuries and death was within minutes and between
death and postmortem more than 48 hours. Thus, it
comes out that Gurmail Singh was murdered by
accusedMange Ram and Dinesh Kumar on
08.05.2000.”
10. The trial court was conscious of this aspect but then it did not
go into this aspect for the reason that no question was put on this by
the defense, this is what was said by the trial court:
“I have gone through the post mortem report.
Perusal of the same reveals that the rigor mortis was
present in all the four limbs due to swelling and not
in normal course. It was the duty of the defence to
ask the doctor who had conducted post mortem on
the dead body, whether the presence of rigor mortis
was suggestive of the fact that the deceased was
killed within thirtysix hours of his post mortem
examination. But no such question was put to doctor.
The doctor in his statement had stated that the time
between death and post mortem examination was
more than fortyeight hours and this statement of the
doctor was not challenged in his crossexamination.
Therefore, the plea of the ld. defence counsel cannot
be accepted.”
11.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. Section 165 of the
Act reads as under:
“165. Judge’s power to put questions or order
production. –– The Judge may, in order to discover
or to obtain proper proof of relevant facts, ask any
question he pleases, in any form, at any time, of any
witness, or of the parties about any fact relevant or
irrelevant; and may order the production of any
document or thing; and neither the parties nor their
agents shall be entitled to make any objection to any
such question or order, nor, without the leave of the
Court, to crossexamine any witness upon any
answer given in reply to any such question: Provided
that the judgment must be based upon facts
declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize
any Judge to compel any witness to answer any
question, or to produce any document which such
witness would be entitled to refuse to answer or
produce under sections 121 to 131, both inclusive, if
the question were asked or the document were
called for by the adverse party; nor shall the Judge
ask any question which it would be improper for any
other person to ask under section 148 or 149; nor
shall he dispense with primary evidence of any
document, except in the cases hereinbefore
excepted.”
The powers of a presiding judge in a criminal trial and his
duty to get to the truth of the matter have been laid down in a
seminal judgement of this Court authored by Justice O.
Chinnappa Reddy, which is Ram Chander v. State of Haryana
4
.
Justice O. Chinnappa Reddy in the said judgment refers to his
earlier Judgment
5
given by him as a Judge of the Andhra
Pradesh High Court, where it was said :
“Every criminal trial is a voyage of discovery in
which truth is the quest. It is the duty of a presiding
judge to explore every avenue open to him in order to
discover the truth and to advance the cause of
justice. For that purpose he is expressly invested by
Section 165 of the Evidence Act with the right to put
questions to witnesses. Indeed the right given to a
judge is so wide that he may, ask any question he
pleases, in any form, at any time, of any witness, or
of the parties about any fact, relevant or irrelevant.
Section 172(2) of the Code of Criminal Procedure
enables the court to send for the policediaries in a
case and use them to aid it in the trial. The record of
the proceedings of the Committing Magistrate may
also be perused by the Sessions Judge to further aid
him in the trial.”
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.” While referring to a decision of Lord Denning in Jones v.
National Coal Board
6
the learned Judge had said that it is the
duty of the judge to ask questions to the witnesses when it
4 1981 AIR 1036
5 Sessions Judge, Nellore v. Intha Ramana Reddy, ILR 1972 AP 683; 1972 Cri LJ 1485
6 (1957) 2 All ER 155: (1957) 2 WLR 760
becomes necessary to clear up any point that has been
overlooked or left obscure, then he goes on to say as under:
“We may go further than Lord Denning and say that
it is the duty of a judge to discover the truth and for
that purpose he may "ask any question, in any form,
at any time, of any witness, or of the parties, about
any fact, relevant or irrelevant" (Section
165, Evidence Act). But this he must do, without
unduly trespassing upon the functions of the public
prosecutor and the defence counsel, without any hint
of partisanship and without appearing to frighten or
bully witnesses. He must take the prosecution and
the defence with him. The Court, the prosecution and
the defence must work as a team whose goal is
justice, a team whose captain is the judge. The
judge, 'like the conductor of a choir, must, by force of
personality, induce his team to work in harmony;
subdue the raucous, encourage the timid, conspire
with the young, flatter and (sic the) old'.”
In our considered opinion the prosecution has failed to establish
important links in this case, which is so vital in a case of
circumstantial evidence. Rigor mortis present in the body after 90
hours is unusual, though possible under certain circumstances. It
was the duty of the prosecution to explain it. The defense too failed to
question it and the Court remained silent. Let us now revert to the
evidence of last seen.
12.The evidence of last seen becomes an extremely important piece
of evidence in a case of circumstantial evidence, particularly when
there is a close proximity of time between when the accused was last
seen with the deceased and the discovery of the body of the deceased,
or in this case the time of the death of the deceased. This does not
mean that in cases where there is a long gap between the time of last
seen and the death of the deceased the last seen evidence loses its
value. It would not, but then a very heavy burden is placed upon the
prosecution to prove that during this period of last seen and discovery
of the body of the deceased or the time of the death of the deceased,
no other person but the accused could have had an access to the
deceased. The circumstances of last seen together in the present case
by itself cannot form the basis of guilt (See: Anjan Kumar Sarma &
Others v. State of Assam
7
).
The circumstances of last seen together does not by itself lead to
an irrevocable conclusion that it is the accused who had committed
the crime. The prosecution must come out with something more to
establish this connectivity with the accused and the crime committed.
Particularly, in the present case when there is no close proximity
between circumstances of last seen together and the approximate time
of death, the evidence of last seen becomes weak (See: Malleshappa
v. State of Karnataka
8
).
In Nizam & Anr. v. State of Rajasthan
9
where the time gap
between the last seen together and the discovery of the body of the
deceased was long, it was held that during this period the possibility
7 (2017) 14 SCC 359 -para 19
8 (2007) 13 SCC 399 – para 23
9 (2016) 1 SCC 550
of some other interventions could not be ruled out. Where time gap
between the last seen and time of death is long enough, as in the
present case, then it would be dangerous to come to the conclusion
that the accused is responsible for the murder. In such cases it is
unsafe to base conviction on the “last seen theory” and it would be
safer to look for corroboration from other circumstance and evidence
which have been adduced by the prosecution. The other
circumstances here is the so called discovery, and most of these, as we
have already discussed, fail to meet the requirement of Section 27 of
the Evidence Act.
As per the postmortem which was conducted on 12.05.2000 at
4:15 P.M, the death was 48 hours prior to the post mortem, which
means it was before 4:00 P.M. on 10.05.2000. Even assuming that
the death has taken place, a day earlier i.e. 09.05.2000, still there is a
long gap between the last seen which is at 7:00 pm on 08.05.2000 and
the morning of 09.05.2000. In the case of State of Goa v. Sanjay
Thakran
10
, where in the evidence of last seen, the recovery of dead
body was only a few hours before “last seen”, it was not considered
reliable.
The same was again emphasized by this Court in Ajit Singh v.
State of Maharashtra
11
where it was emphasized that the time
10 (2007) 3 SCC 755
11 (2011) 14 SCC 401
between victim last seen alive and the discovery of the body of the
deceased has to be of close proximity, so that any other person being
the author of the crime cannot be ruled out. 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 postmortem and 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 trial court as well as the High Court have lost sight of the
vital aspect of the matter. Both the Courts have relied on Section 106
of the Act and have held that since the accused was last seen with the
deceased and he has not been able to give any reasonable explanation
of his presence with the deceased in his statement under Section 313
of the Cr.P.C., it has to be read against the accused and therefore it
has to be counted as an additional link in the chain of circumstantial
evidence. In present case in the findings of the trial court and High
Court this appears to be the most important aspect which weighed
with the trial court as well as the High Court in establishing the guilt
of the accused. We are, however, afraid this is a complete misreading
of Section 106 of the Act.
Section 101 of the Act places the burden of proof on the
prosecution. It reads as under :
101. Burden of proof –– Whoever desires any
Court to give judgment as to any legal right or
liability dependent on the existence of facts which he
asserts, must prove that those facts exist. When a
person is bound to prove the existence of any fact, it
is said that the burden of proof lies on that person.
Section 106 of the Act creates an exception to Section 101 and
reads as under :
106. Burden of proving fact especially within
knowledge –– When any fact is especially within
the knowledge of any person, the burden of proving
that fact is upon him.
Section 106 of the Act is an exception to the rule which is Section 101
of the Act, and it comes into play only in a limited sense where the
evidence is of a nature which is especially within the knowledge of that
person and then the burden of proving that fact shifts upon him that
person.
The burden of proof is always with the prosecution. It is the
prosecution which has to prove its case beyond a reasonable doubt.
Section 106 of the Act does not alter that position. It only places
burden for disclosure of a fact on the establishment of certain
circumstances. We have no reason to doubt the testimony of PW10
(Karanjit Singh), the sole witness of last seen. In his statement under
Section 313 of the Code of Criminal Procedure, when the appellant
was questioned about being in the company of the deceased on
08.05.2000 along with coaccused Mange Ram, no explanation was
given by the appellant about his whereabouts. It is for this reason that
it has been held that the accused has not been able to discharge his
burden under Section 106 of the Act and therefore this has to be read
as an additional link in the chain of evidence against the appellant. To
our mind, however, Section 106 of the Act would not even come to
play here under the facts and circumstances of the present case.
13.What has to be kept in mind is that Section 106 of the Act, only
comes into play when the other facts have been established by the
prosecution. In this case when the evidence of last seen itself is on a
weak footing, considering the long gap of time between last seen by
PW10 and the time of death of the deceased, Section 106 of the Act
would not be applicable under the peculiar facts and the
circumstances of the case.
14.As far as the recovery is concerned, the recovery is again weak.
The socalled alleged place of crime and the recovery of tractor or the
place where the tractor was abandoned had already been disclosed by
the coaccused by the time the present appellant was arrested.
Therefore, making a disclosure about the place of occurrence or the
place where the tractor was abandoned is of no consequence. As far as
the recovery of watch, currency notes of Rs. 250/, hair and ‘Parna’
from the residence of the appellant are concerned, the currency notes
and hair have not been identified with the deceased. In a criminal
trial, the prosecution has to prove its case beyond reasonable doubt.
This heavy burden has to be discharged by the prosecution. It
becomes even more difficult in a case of circumstantial evidence. In
the present case, the nature of circumstantial evidence is weak. 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 factors which have to be taken into consideration by the
Court in a case of circumstantial evidence, are too well settled to be
stated but nevertheless these factors which are being reproduced from
Anjan Kumar Sarma (supra) are as under :
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
The circumstances concerned “must” or “should”
and not “may be” established;
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty;
(3) the circumstances should be of a conclusive
nature and tendency;
(4) they should exclude every possible hypothesis
except the one to be proved; and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.”
15.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.
In a case where there is no direct eye witness to the crime, the
prosecution has to build its case on the circumstantial evidence. It is a
very heavy burden cast on the prosecution. The chain of
circumstances collected by the prosecution must complete the chain,
which should point to only one conclusion which is that it is the
accused who had committed the crime, and none else. Each evidence
which completes the chain of evidences must stand on firm grounds.
In our considered opinion, the evidence placed by the prosecution in
this case does not pass muster the standard required in a case of
circumstantial evidence.
16.This appeal therefore succeeds. The orders of the trial court and
the 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.
……..............................J.
[SUDHANSHU DHULIA]
.
…….............................J.
[SANJAY KUMAR]
New Delhi,
May 04, 2023.
ITEM NO.1501 COURT NO.11 SECTION II-B
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 530/2022
DINESH KUMAR Appellant(s)
VERSUS
THE STATE OF HARYANA Respondent(s)
( IA No.96201/2022 - PERMISSION TO FILE ADDL.DOCS.FACTS/ANNEXURES)
Date : 04-05-2023 This matter was called on for pronouncement of
judgment today.
For Appellant(s) Mr. A. Sirajudeen, Sr. Adv. (SCLSC)
Mr. Naresh Kumar, AOR
Mr. Keerthik Vasan, Adv.
For Respondent(s) Mr. Dinesh Chander Yadav, A.A.G.
Mr. A.S. Rishi, Adv.
Mr. Ishwar Chand, Adv.
Mr. M.K. Bansal, Adv.
Dr. Monika Gusain, AOR
Hon’ble Mr. Justice Sudhanshu Dhulia pronounced the judgment
of the Bench comprising His Lordship and Hon’ble Mr.Justice Sanjay
Kumar.
The appeal is allowed and appellant is released forthwith in
terms of the signed reportable judgment, which is placed on the
file.
Pending application(s), if any, shall stand disposed of.
(NIRMALA NEGI) (VIDYA NEGI)
COURT MASTER (SH) ASSISTANT REGISTRAR
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