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Judgment
Per: Justice G.S. Ahluwalia
By this common judgment, Criminal Appeal No. 860/2016 filed by Rahul alias Rinku and Criminal Appeal No. 1013/2016 filed by Akshay shall be decided.
Both the criminal appeals have been filed under Section 374 of Cr.P.C against the judgment and sentence dated 05.08.2016 passed by Additional Sessions Judge/Special Judge (under the MPDVPK Act), Lahar, District Bhind in Special Sessions Trial (Dacoity) No. 74/2015 by which, the appellants have been convicted under sections 364, 302 of IPC and section 11/13 of the Madhya Pradesh Dacoity Evam Vypharan Prabhavit Kshetra Adhiniyam, 1981 ( In short ―MPDVPK Act‖) and sentenced as under:
| Section | Sentence |
| 302 of IPC | Life imprisonment with fine of Rs.1,00,000/-, in default to suffer RI for 2 years |
| 364 of IPC | RI for 7 years with fine of Rs.25,000/- in default to suffer RI for 1 year. |
| 11/13 of MPDVPK Act | No separate Sentence |
The facts necessary for disposal of the present appeal, in short, are that on 28.06.2015 at about 05:00 p.m. the father of the deceased, namely Kishunpal, gave an information to the police that on 27-6-2015, his daughter Raja Beti had gone to Degree College in order to enquire about the question papers. Thereafter she did not come back. He was searching for his daughter. Today, Devi Deen Bhaghel, resident of Village Kakora, informed that the dead body of a girl is hanging on a Neem tree. Thereafter he went to Village Kakora and found that the dead body was of his daughter. On this report, merg intimation (Ex.P/1) under Section 174 of Cr.P.C was recorded. The dead body was recovered. It was sent for post mortem. On the next day i.e., 29.06.2015, Kishunpal, father of deceased, gave a complaint in writing that on 27-6-2015 at about 10:00 A.M., his daughter had left for Pitambara College. He waited for his daughter till evening, but his daughter did not return back. Later on he came to know that his daughter was abducted by the appellants on their motorcycle. Appellant Akshay was driving the motorcycle whereas his daughter and the appellant Rinku were the pillion riders. His brother Nand Kishore had seen the appellants taking away his daughter. Thereafter, he tried to search out his daughter but could not get any information. On 27.06.2015 at about 10:00 in the night, they went to the house of the appellants but the appellants were not in their house. The family members of the appellants were informed that appellants have abducted his daughter Raja Beti. On 28.06.2015 at about 06:00 p.m., he came to know that the dead body of somebody is hanging in village Kakora on a Neem tree. He went there. He found that the dead body was of his daughter. It was claimed that his daughter has been killed by the appellants. When he had lodged the report, he had no information. When his brother Nand Kishore gave aforesaid information , then he has made a complaint in writing. When his daughter had left her house on 27.06.2015 at about 10:00 A.M., then she had met with one girl Neha, daughter of Karan Singh. He is not aware of the topic of conversation between his daughter and Neha. The girl Neha may also be involved. At about 11:00 A.M. Sukke son of Ram Sevak had also seen the appellants taking away his daughter. His daughter was carrying mobile nos. 8109978927 and 8226034195. His daughter was also wearing gold ornaments.
On 06.07.2015, appellants were arrested. Mobile phones of the appellants were seized from the possession of the appellants, the motorcycle which was allegedly used for taking away the deceased was also seized from the appellant Akshay. One broken set of mobile allegedly belonging to the deceased was also seized from the possession of Rinku. The police, after completing the investigation, filed charge sheet for offence under Sections 302, 120B, 364 of IPC and 11/13 of the MPDVPK Act.
The trial Court framed charges under Section 364 of IPC read with Section 11/13 of MPDVPK Act as well as under Section 302 read with Section 302/34 of IPC and under Section 11/13 of MPDVPK Act.
The appellants abjured their guilt and pleaded not guilty.
The prosecution, in order to prove its case, examined Kishunpal (PW1), Umesh Rathore (PW2), Devideen (PW3), Sukke (PW4), Devendra Kushwah (PW5), Nand Kishore Kushwah (PW6), Neha Dohare (PW7), Malkhan Singh (PW8), Yogendra Singh Chauhan (PW9), Ram Het Singh (PW10), Premshree (PW11), Mukesh Singh Kushwah (PW12), Geeta Bai (PW13), Rajeshwari (PW14), Dr. B.R. Mourya (PW15), Ramvaran Singh (PW16), Manish Dev Mishra (PW17), Ram Singh (PW18), Upendra Bhati (PW19), and Naveen Bharadwaj (PW20).
The appellants examined Akhilesh Kumar (DW1), Narayan Das (DW2) and Man Singh (DW3).
The trial Court, after recording evidence and hearing both the parties, convicted the appellants for the offences mentioned above.
Challenging the judgment and sentence passed by the Court below, it is submitted by counsel for appellants that the case is based on circumstantial evidence. The prosecution has failed to prove the chain of circumstances beyond reasonable doubt. The theory of last seen together is false. The mobile phone which was allegedly belonging to the deceased Raja Beti and was recovered from Rinku has not been identified. No extra judicial confession was made by appellant Rahul alias Rinku to Devendra. There was no motive for the appellants to commit an offence. Accordingly, it is prayed that the appellants be acquitted.
Per contra, the counsel for the State has supported the findings and reasoning given by the Court below and submitted that the Court below, after considering the circumstances meticulously, has rightly convicted the appellants for the offences mentioned above.
Considered the submissions made by counsel for the parties.
Before considering the evidence led by the prosecution, this Court would like to consider the law governing the field of circumstantial evidence.
The Supreme Court in the case of Munish Mubar v. State of Haryana reported in (2012) 10 SCC 464 has held as under:-
"28.Undoubtedly, in a case of circumstantial evidence, all the circumstances must be fully established and all the facts so established, must be consistent with the hypothesis regarding the guilt of the accused. The circumstances so established should exclude every other possible hypothesis except the one sought to be proved. The circumstances must be conclusive in nature. The circumstantial evidence is a close companion of factual matrix, creating a fine network through which there can be no escape for the accused, primarily because the said facts, when taken as a whole, do not permit us to arrive at any other inference but one indicating the guilt of the accused."
27. The Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 has held as under:-
152.Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh and Ramgopal v. State of Maharashtra. It may be useful to extract what Mahajan, J. has laid down in Hanumant case:
―It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.‖
153.A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1)the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned ―must or should‖ and not ―may be‖ established. There is not only a grammatical but a legal distinction between ―may be proved‖ and ―must be or should be proved‖ as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]
―Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‗may be‘ and ‗must be‘ is long and divides vague conjectures from sure conclusions.‖
(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.
154.These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
155.It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in King v. Horry thus:
―Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.‖
156.Lord Goddard slightly modified the expression ―morally certain‖ by ―such circumstances as render the commission of the crime certain‖.
157.This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry case was approved by this Court in Anant Chintaman Lagu v. State of Bombay. Lagu case as also the principles enunciated by this Court in Hanumant case have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases — Tufail case, Ramgopal case, Chandrakant Nyalchand Seth v. State of Bombay, Dharambir Singh v. State of Punjab. There are a number of other cases where although Hanumant case has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration, Mohan Lal Pangasa v. State of U.P., Shankarlal Gyarasilal Dixit v. State of Maharashtra and M.G. Agarwal v. State of Maharashtra — a five-Judge Bench decision.
The Supreme Court in the case of Padala Veera Reddy v. State of A.P., reported in 1989 Supp (2) SCC 706 has held as under :
10.Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:
“(1)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2)those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3)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
(4)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra.)”
11.See also Rama Nand v. State of Himachal Pradesh, Prem Thakur v. State of Punjab, Earabhadrapa alias Krishnappa v. State of Karnataka, Gian Singh v. State of Punjab, Balwinder Singh v. State of Punjab.
The Supreme Court in the case of Balwinder Singh Vs. State of Punjab reported in 1995 (Supp) 4 SCC 259 has held as under :
4.In a case based on circumstantial evidence, it is now well-settled that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof. It is in the context of the above-settled principles, that we shall analyse the evidence led by the prosecution.
The Supreme Court in the case of Harishchandra Ladaku Thange v. State of Maharashtra, reported in (2007) 11 SCC 436 has held as under :
8.―9. Before analysing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
10.It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, Eradu v. State of Hyderabad, Earabhadrappa v. State of Karnataka, State of U.P. v. Sukhbasi, Balwinder Singh v. State of Punjab and Ashok Kumar Chatterjee v. State of M.P.) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
11.We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. wherein it has been observed thus : (SCC pp. 206-07, para 21)
‗21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.‘
12.In Padala Veera Reddy v. State of A.P. it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests : (SCC pp. 710-11, para 10)
‗10 (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2)those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3)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
(4)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.‘
13.In State of U.P. v. Ashok Kumar Srivastava it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
14.Sir Alfred Wills in his admirable book Wills’ Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence : (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
(2)the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;
(3)in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;
(4)in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and
(5)if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
15.There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.
16.In Hanumant Govind Nargundkar v. State of M.P. it was observed thus : (AIR pp. 345-46, para 10)
‗10. … It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.‘
17.A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are : (SCC p. 185, para 153)
(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.‖
The first question for consideration is as to whether the death of Raja Beti was suicidal or homicidal.
Dr. B. R. Mourya (PW15) is the autopsy surgeon who had conducted the postmortem of the dead body of the deceased. The postmortem was conducted on 29.06.2015 at about 10:00 a.m.
In the postmortem, the following observations were made:
Examined the body of female. Body lying in supine position, rigor mortis present all over body, all over body swelling, putrefied, (illeg) both eyes pupil widely dilated and fixed, blister present all over body, black colour of toes & hands, ligature mark was present around the neck (illeg) size 2x1 cm and hyoid bone fracture (illeg) present. Petechiae (illeg). The skull of the deceased was completely putrefied. The viscera, clothes and trachea Wan of the deceased were sealed and handed over to police. According to the doctor, the cause of death was strangulation before hanging and death was homicidal in nature. The postmortem report is (Ex. P/20).
A query was raised by the Investigating Officer as to whether the deceased was subjected to rape or not and whether the blisters which were found on the body of the deceased could have been caused on account of decomposition. A query report was given by the doctor that there was no symptom of rape and blisters may be due to putrefaction after death. The query report is (Ex. P/21).
This witness was cross-examined. He admitted that the dead body might be 3 days old. He admitted that in case if the dead body is 3 days old then there would be a swelling. He further admitted that after the dead body gets decomposed, then the injuries are not easily visible. He admitted that there were no injuries on the dead body of deceased Raja Beti. He further admitted that for hanging a dead body, 3 or 4 persons would be required. He further admitted that the ligature mark which was found on the dead body could have been caused on account of suicide. He further admitted that there were no symptoms of acid on the dead body. He admitted that since it was a summer season, therefore, the decomposition of the dead body was possible. He admitted that the possibility of committing suicide was not ruled out. This witness was asked to read out his postmortem report (Ex. P/20) and point out as to whether the death of the deceased was homicidal or suicidal. However, the witness after going through the postmortem report opined that the death was homicidal. He further admitted that he has already served for more than 14 years and by looking at the dead body, he can tell whether it is homicidal or suicidal.
In view of the evidence of Dr. B. R. Mourya (PW15), it is clear that the opinion given by this witness that the death of the deceased was homicidal is not trustworthy. It is not the case of Dr. Mourya (PW15) that on dissection he had found any symptom to come to a conclusion that the deceased was strangulated and thereafter her dead body was hanged on a tree.
In 23rd edition of Modi's Medical Jurisprudence and Toxicology, the differences between hanging and strangulation have been given in Chapter XVII at page 583, which reads as under:
Differences between Hanging and Strangulation
| Hanging | Strangulation |
|---|---|
| 1. Mostly suicidal | 1. Mostly homicidal |
2. Face – Usually pale and petechiae rare | 2. Face – Congested, livid and marked with petechiae |
3. Saliva – Dribbling out of the mouth down on the chin and chest | 3. Saliva – No such dribbling |
4. Neck – Stretched and elongated in fresh bodies | 4. Neck – Not so |
5. External signs of asphyxia, usually not well marked. | 5. External signs of asphyxia, very well marked (minimal if death due to vasovagal and carotid sinus effect) |
6. Bleeding from the nose, mouth and ears very rare | 6. Bleeding from the nose, mouth and ears may be found |
| 7. Ligature mark – Oblique, non-continuous placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard, yellow and parchment-like. | 7. Ligature mark – Horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish. |
| 8. Abrasions and ecchymoses round about the edges of the ligature mark, rare. | 8. Abrasions and ecchymoses round about the edges of the ligature mark, common. |
9. Subcutaneous tissues under the mark- White, hard and glistening | 9. Subcutaneous tissues under the mark – Ecchymosed. |
10. Injury to the muscle of the neck – Rare | 10. Injury to the muscles of the neck – Common |
| 11. Carotid arteries, internal coats ruptured in violent cases of a long drop. | 11. Carotid arteries, internal coats ordinarily ruptured. |
| 12. Fracture of the larynx and trachea – Very rare and that too in judicial hanging | 12. Fracture of the larynx and trachea – Often found also hyoid bone. |
| 13. Fracture- dislocation of the cervical vertebrae – Common in judicial hanging | 13. Fracture – dislocation of the cervical vertebrae – Rare |
| 14. Scratches, abrasions and bruises on the face, neck and other parts of the body – Usually not present | 14. Scratches, abrasions fingernail marks and bruises on the face, neck and other parts of the body – Usually present |
| 15 No evidence of sexual assault | 15. Sometimes evidence of sexual assault |
16 Emphysematous bullae on the surface of the lungs – Not present | 16. Emphysematous bullae on the surface of the lungs – May be present. |
In case of a strangulation, there should have been some resistance or struggle injuries/marks. The subcutaneous tissues under the mark should have been found ecchymosed. Although the fracture of larynx and trachea is found both in the case of hanging and strangulation, but in case of suicide scratches, abrasions, and bruises on the face, neck and other parts of the body are usually not present, whereas in case of strangulation, scratches, abrasions, fingernail marks, and bruises on the face, neck, and other parts of the body are usually present. It appears that Dr. Mourya (PW15) had directly jumped to a conclusion that the death was on account of strangulation and hanging is postmortem in nature. No detailed postmortem was done by Dr. Mourya (PW15). Merely because trachea and larynx were found fractured, it would not mean that the death was on account of strangulation, because in either case, the fracture of trachea and larynx may result. Admittedly, no struggle marks were found on the body of the deceased. In the cross-examination, Dr. Mourya has also admitted that it might be a case of suicide, and the deceased could have committed suicide by climbing on the tree. Under these circumstances, this Court is of the considered opinion that the prosecution has failed to prove that the deceased Raja Beti has died a homicidal death on account of strangulation and her hanging was postmortem in nature.
There is another aspect of the matter which cannot be lost sight of. According to the prosecution case, the deceased left her house on 27.06.2015 and her dead body was recovered at 06:00 p.m. on 28.06.2015 and the postmortem was conducted on 29.06.2015 at 10:00 a.m. According to Dr. Mourya (PW15), the death could have taken place about 3 days back because in his cross-examination he has admitted that the dead body might be 3 days old. If 3 days are counted from the timings and date of the postmortem, then it is clear that the deceased had died in the morning of 26th or 27.06.2015. However, it is the case of the prosecution witnesses that the deceased was seen alive for the last time on 27.06.2015 at about 11:00 a.m. Therefore the postmortem report and the condition of the dead body does not corroborate with the ocular evidence of the prosecution witnesses. All these material aspects have been ignored by the trial Court. It is always expected that the trial Court must deliver the judgment after meticulously appreciating the evidence led by the prosecution. Conviction should not be the sole motive of the trial Judge. Be that whatever it may be.
Since the prosecution has failed to prove that the death of the deceased was homicidal on account of strangulation and her hanging was postmortem in nature, it is suffice to hold that prosecution has failed to prove that the deceased was killed or the appellants are guilty for committing murder of the deceased Raja Beti. This Court would have closed this judgment at this stage itself, but since the judgment has been passed by the trial Court in a most casual manner and the trial Court has not considered the circumstances in its proper manner, therefore, this Court would also like to comment upon the evidence led by the prosecution witnesses to prove the allegation that the deceased was abducted and she was killed.
Circumstantial Evidence
The Supreme Court in the case of Rahul v. State (NCT of Delhi), reported in, (2023) 1 SCC 83 has held as under:-
―17. The law pertaining to the appreciation of circumstantial evidence is quite well settled by this Court in a catena of decisions. In Sharad Birdhichand Sarda v. State of Maharashtra [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487] , this Court after taking note of earlier decisions had carved out five principles : (SCC pp. 184-85, paras 152-54) ―152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of M.P. [Hanumant v. State of M.P., (1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091] This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail v. State of U.P. [Tufail v. State of U.P., (1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ram Gopal v. State of Maharashtra [Ram Gopal v. State of Maharashtra, (1972) 4 SCC 625] . It may be useful to extract what Mahajan, J. has laid down in Hanumant case [Hanumant v. State of M.P., (1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091] : (Hanumant case [Hanumant v. State of M.P., (1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091] , SCC pp. 76-77, para 12) ‗12. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.‘
A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ―must or should‖ and not ―may be‖ established. There is not only a grammatical but a legal distinction between ―may be proved‖ and ―must be or should be proved‖ as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033] : (SCC p. 807, para 19) ‗19. … Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ―may be‖ and ―must be‖ is long and divides vague conjectures from sure conclusions.‘ (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.
These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.‖ (emphasis in original)‖
The prosecution has relied upon the following circumstances: (i) Last seen Together; (ii) Extra Judicial Confession by Rahul @ Rinku; (iii) Recovery of Broken mobile phone of deceased; (iv) Friendship/relationship between appellant Rahul @ Rinku and the deceased even after her marriage; (v) The appellants were found missing from their house on 27-6-2015; (vi) Motive; (vii) False Defence.
Last Seen Together
Before considering the evidence led by the prosecution to prove the theory of last seen together, this court would like to consider the law governing the field of last seen together.
The Supreme Court in the case of Digamber Vaishnav v. State of Chhattisgarh, AIR 2019 SC 1367 has held as under :
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 trustworthy, 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.
In Arjun Marik v. State of Bihar [Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372 : 1994 SCC (Cri) 1551] , it has been held as under: (SCC p. 385, para 31) ―31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed 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 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.‖
In Kanhaiya Lal v. State of Rajasthan [Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 : (2014) 2 SCC (Cri) 413] , 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: (SCC p. 719, para 12) ―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.‖
The Supreme Court in the case of Nizam v. State of Rajasthan,(2016) 1 SCC 550 has held as under :
14.The courts below convicted the appellants on the evidence of PWs 1 and 2 that the deceased was last seen alive with the appellants on 23-1-2001. Undoubtedly, the ―last seen theory‖ is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The ―last seen theory‖ holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled by this Court that it is not prudent to base the conviction solely on ―last seen theory‖. ―Last seen theory‖ should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.
Elaborating the principle of ―last seen alive‖ in State of Rajasthan v. Kashi Ram [(2006) 12 SCC 254 : (2007) 1 SCC (Cri) 688] , this Court held as under : (SCC p. 265, para 23) ―23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohamed, In re. [1959 SCC OnLine Mad 173 : AIR 1960 Mad 218] ‖ The above judgment was relied upon and reiterated in Kiriti Pal v. State of W.B. [(2015) 11 SCC 178 : (2015) 5 Scale 319
Kishunpal (PW1) is the father of the deceased. He has stated that on 27.06.2015, his daughter Raja Beti and her friend Neha had left for Pitambara College at about 10:00 a.m. Thereafter at about 03:00 p.m., he received a telephonic call from his son-in-law Devendra that he is unable to contact the deceased Raja Beti. Thereafter, this witness informed his wife Rajeshwari that the mobile phone of Raja Beti is not responding. Thereafter this witness went to Pitambara College and verified from the Principal about his daughter. Then he informed that his daughter had not come to the college. Thereafter he was searching for his daughter. He went up to Radharaman College where his daughter used to go to give examination. But she was not found there also. At about 07:00 p.m. he came back to his house. Then he was informed by his brother Nand Kishore that appellant Akshay had taken away his daughter on his motorcycle and Rahul alias Rinku was also the pillion rider. They were going towards Majhtora Junction. Thereafter they went to the house of the appellants Rahul and Akshay and found that both the persons were not in their house. He kept on searching for his daughter on 27.6.2015. On 28.06.2015 he went to the police station Lahar to lodge the FIR where he was informed by the police personnel that the dead body of one girl is hanging in village Kakora, therefore he should go and try to identify. At about 07:00 p.m. he went to the place of occurrence and found that the dead body of his daughter Raja Beti was hanging. She had injuries on her body. The body was burned with the help of acid. The dead body was taken down by the police and was sent for postmortem report. At the time when his daughter had left her house, she was wearing gold ornaments. However at the time of postmortem there were no ornaments on the body of the deceased. Even at the time when he saw the dead body hanging on the tree, he did not notice any ornaments on the body of the deceased. He had given an information to the police on 28.06.2015 (Ex. P/1) which bears his signatures from A to A. Thereafter on 29.06.2015, he gave a written application to police which is (Ex. P/2). On 28.06.2015, Sukke son of Ramsevak Rathor had also informed that he had seen the appellants taking his daughter on their motorcycle. The safina form (Ex. P/3) was prepared. Lash panchanama (Ex. P/4) was prepared. The written report (Ex. P/2) was made after the postmortem of his daughter was over. Neha daughter of Karan Singh was also involved in the incident. The photographs of the dead body of his daughter Raja Beti are (Article A/1 to Article A/14). His statement under Section 164 of Cr.P.C was also recorded.
In cross-examination, he admitted that on 27.06.2015, he had met with his brother Nand Kishore. He further admitted that on 27.06.2015, he did not go to the police station but claimed that he had gone to the house of the appellants. He further admitted that till 12:00 in the night of 27.06.2015 he had not lodged any Gum Insaan report. He further admitted that he had married his daughter Raja Beti on 27.05.2015 and his son-in-law is working in Indore. He further admitted that his daughter had stayed in her matrimonial house for 15 days after her marriage and went to her matrimonial house twice. On the first occasion she had stayed in her matrimonial house for 4 days and for the second time she had stayed for 10 to 11 days. He denied the suggestion that his daughter was not ready to go along with her husband to Indore. He further denied that he and his wife were pressurizing the deceased to go to Indore. However, he claimed that she was willing to go to Indore. He had given a statement regarding Gum Insaan on 28.06.2015 which was prior to his written complaint. He admitted that on 27.06.2015 itself he was informed by his brother Nand Kishore about the names of the appellants but he did not disclose it in his report dated 28.06.2015 (Ex. P/1). However he tried to give an explanation that since he was upset on account of death of his daughter, therefore, he did not disclose their names. Devideen Baghel had given an information to the police that the appellants have killed the deceased and he got this information from the police station. He further stated that even prior to the postmortem report, his statement was recorded on 28.06.2015 and in that statement also he had not disclosed the names of the appellants. On 28.06.2015, he had gone to the police station in the evening but denied that he did not go to the police station prior to 08:00 p.m. of 28.06.2015. The report (Ex. P/1) was made after the dead body of the deceased was recovered. He further admitted that Nand Kishore and Sukke are friends. He denied that his daughter was not happy with her marriage, and that was informed by her to his wife Rajeshwari and daughter-in-law Geeta. He denied the suggestion that the deceased was not willing to go along with her husband. He denied the suggestion that on this issue, he and his wife had beaten the deceased, and because of that she had committed suicide. He further stated that when he went to village Kakora, the police had already reached there and at that time, the police was taking down the dead body. He had not given any statement that before he could reach to village Kakora the dead body was already taken down by the police. He did not fell unconscious after noticing the dead body of his daughter. However, he went in shock. He admitted that on 28.06.2015 itself Sukke and Nand Kishore had informed that the deceased was taken away by appellants Akshay and Rahul. The written complaint (Ex. P/2) was given on 29.06.2015 at about 02:00 p.m. However, he was not able to inform that from where he had got the application typed. He denied the suggestion that the written complaint (Ex. P/2) was given after consulting one Babulal Kushwah, Advocate. A specific question was put to this witness that when according to him his daughter had left her house along with Neha, then why he did not go to the house of Neha, then it was replied by this witness, that he did not think from that point of view.
Thus it is clear from the evidence of Kishunpal (PW1) that on 27.06.2015 itself he was informed by Nand Kishore that he had seen the deceased along with the appellants on the motorcycle and motorcycle was being driven by him. But on 28.06.2015 he did not disclose that fact to the police. It is not out of place to mention here that in the police complaint (Ex. P/1) which was made by Kishunpal (PW1) after receiving an information from Devideen that the dead body of a girl is hanging on a Neem tree, he did not disclose the names of the appellants and he also did not disclose the fact that the deceased had gone with the appellants which was seen by Nand Kishore and Sukke. The fact of last seen together was disclosed for the first time in the written complaint (Ex. P/2) which was made on 29.06.2015 i.e. much after the recovery of the dead body of the deceased..
Devideen (PW3) is the person in whose premises the dead body of the deceased was found hanging. He has stated that when he went to his village he found that the residents of village Sundarpura and Badokhari were watching the dead body. He went to the police station to give an information. Thereafter he came back to his village along with the Chowkidar and police. When he came to the spot he found that the dead body of a girl was hanging on a tree. The girl was not known to him. A lot of persons had gathered there but none of them could identify. The police had obtained the signatures on seizure memo (Ex. P/5). The dead body of the deceased was brought down by the police in his presence. In cross-examination, he admitted that the field where the dead body was found is of one Advocate Rajesh, but sale deed has not been executed. He further stated that after the information was given to the police, the police went to the spot and he had followed the police. He was informed by the villagers that the father of the deceased had also reached on the spot, but he has claimed that he did not identify the father of the deceased. He was not in a position to disclose as to whether the girl could have climbed up to the tree or not. On a question put by the Court, he clarified that he does not know that when he went to the police station to give an information, whether the father of the deceased was also in the police station or not. He was also not in a position to disclose as to whether the father of the deceased, police persons and Chowkidar went to the spot or not. He further stated in his cross-examination that he went to the spot in the police vehicle. All the villagers were sitting at a distance of 100 feet from the place of incident.
Thus, if the evidence of this witness is read along with the information given by Kishunpal (PW1), then it is clear that according to the information given by Kishunpal vide Ex. P/1, he was informed by Devi Deen Baghel that the dead body of a girl is hanging in the village, whereas according to Devi Deen (PW3), he cannot identify the father of the deceased and it is not his case that he had ever informed the father of the deceased. On the contrary, his case is that he went to the police station, informed about the fact that the dead body of a girl is hanging on a tree, and then he came back to the place of occurrence. Therefore, the evidence of Devi Deen (PW3) gives a deep dent to the information (Ex. P/1) given by Kishunpal (PW1). However, Kishunpal in his cross-examination has clearly admitted that at the time of giving information to the police (Ex. P/1), he did not disclose the names of the appellants. Even in his statement which was recorded prior to the postmortem, he did not disclose the names of the appellants.
Sukke (PW4) is the witness of last seen together. He has stated that on 27.06.2015, he had seen the appellants going away along with the deceased on their motorcycle. Thereafter, his nephew expired on 27.06.2015 and he was sad on account of death of nephew. On 29.06.2015, he was informed by his customers that the daughter of Kishunpal has expired. Thereafter, he informed the father of the deceased that on 27.06.2015 he had seen the appellants going along with his daughter at about 11:00 a.m. He identified the appellants in the dock and informed that Akshay was driving the motorcycle whereas Rinku was the pillion rider and the deceased was sitting between both of them. He has further stated that he had informed the father of the deceased on 29.06.2015 at about 06:00 a.m. Since the appellants were already known to him, therefore he had identified the appellants even when the motorcycle was in motion. This witness was confronted with his police statement (Ex. D/3). In police statement (Ex.D/3), ―he had stated that the deceased and Rinku had covered their faces and the motorcycle was at a high speed. He had seen the appellants going along with the deceased on 27.06.2015 and he had informed Kishunpal on the next day (i.e. must be on 28.06.2015)‖. This witness could not explain as to why the aforesaid facts were mentioned in his police statement (Ex. D/3). According to the police statement (Ex. D/3), Sukke had stated that the deceased Raja Beti and the appellant Rahul alias Rinku had covered their faces in order to hide their identity and the motorcycle was at a high speed. He has also stated in his police statement (Ex. D/3) that on the next day i.e. on 28.06.2015 he had informed the father of the deceased that he had seen the appellants along with the deceased, whereas in his court evidence he has made a vital improvement by claiming that in fact he had informed the father of the deceased on 29.06.2015. This improvement is vital and fatal to the prosecution case. As already pointed out on 28.06.2015 the father of the deceased Kishunpal (PW1) had informed the police vide Ex. P/1 that he has been informed by Devi Deen that the dead body of the girl is hanging on a tree and when he went to the spot he found that the dead body is of his daughter. In that information which was lodged on 28.06.2015 the names of the appellants were not disclosed. For the first time, Kishunpal (PW1) made a written complaint on 29.06.2015 at about 02:00 p.m. disclosing that the deceased was seen for the last time in the company of appellants by Nand Kishore and Sukke. Therefore, the improvement in the evidence of Sukke (PW4) that he had disclosed the fact of last seen together to the father of the deceased only on 29.06.2015 is material and was done with an intention to cover up the lacuna of absence of names of appellants in the information which was given by the father of the deceased for the first time to the police (Ex. P/1). Furthermore, this witness could not explain as to why the police had written in his police statement (Ex. D/3) that the deceased as well as Rahul alias Rinku had covered their faces. He also could not explain as to why the police had written that the motorcycle was at a high speed.
Nandkishore (PW6) is another witness of last seen together. This witness is the brother of Kishunpal (P.W.1) He has stated that on 27.06.2015, at about 10:45 a.m., he was sitting on the platform of Dileep and thereafter he was going to purchase bidi and after purchasing bidi, he had seen that Akshay was driving the motorcycle whereas Raja Beti and the appellant Rahul alias Rinku were the pillion riders. On 27.06.2015 at about 07:00 p.m., he had informed his brother Kishunpal (P.W.1) about the said fact. This fact was also disclosed by him to the police. If the evidence of Nand Kishore (PW6) is considered then it is clear that he had informed Kishunpal (P.W.1) on 27.06.2015 about the last seen together. But, at the cost of repetition, it is once again clarified that in the information which was given by the father of the deceased for the first time to police on 28.6.2015 (Ex. P/1), the names of the appellants are not mentioned. The names of the appellants figured for the first time in a written complaint made by the father of the deceased on 29.06.2015 at about 02:00 p.m. Therefore, the fact that Kishunpal (PW1) was already informed by Nand Kishore (PW6) and Sukke (PW4) on 27.06.2015 and 28.06.2015 respectively, gets falsified on account of absence of names of the appellants in the information given by the father of the deceased to the police on 28.06.2015 (Ex. P/1). This material fact has not been noticed by the trial Court. At the cost of repetition, even Doctor Mourya (PW15) has stated that the dead body of the deceased might be 3 days old and if that is accepted then it is clear that the deceased Raja Beti had already expired on 26.06.2015 and on that count also the theory of last seen together on 27.06.2015 becomes highly doubtful. Under these circumstances, this Court is of the considered opinion that the prosecution has failed to prove that the deceased was seen for the last time in the company of the appellants.
Extra Judicial Confession
Umesh Rathore (PW2) has stated that Rahul alias Rinku and Raja Beti were good friends and for the last about 1 month they were going to the college together.
Devendra Kushwah (PW5) is the husband of the deceased. The marriage of the deceased was performed with this witness on 26.05.2015. He has stated that on 10.06.2015 he left Raja Beti in her parental home at Lahar. He used to talk to his wife on daily basis. On 27.06.2015 the mobile phone of Raja Beti was switched off. Accordingly, he informed the Bhabhi of the deceased Raja Beti, namely Geeta, who informed that the deceased has not come back from the college. On 28.06.2015 Geeta had informed that Raja Beti had gone along with her friend Neha but has not returned back. Thereafter he called his father-in-law Kishunpal and requested him to supply the mobile number of Neha. On 28.06.2015 at about 10-11 a.m. he talked to Neha who informed that she does not know anything about the whereabouts of Raja Beti. But when he pressurized her to disclose the facts then she informed that in case if he gets the appellant Rahul arrested, then the entire case will be unearthed. Thereafter he took the mobile number of Rahul from his father-in-law and talked to Rahul. On 28.06.2015 at about 10-11 a.m. he had a conversation with Rahul who informed that he does not know anything about the whereabouts of the deceased, and requested him to talk to him after 5 minutes. When this witness again called Rahul after 5 minutes, then the phone was picked up by the brother of Rahul namely Sonu, who informed that Rahul does not want to talk to anybody. When he pressurized to talk to Rahul then he informed that there is a group of 5 persons including Rahul, Ankit, Umesh, Neha, and Raja Beti. He further stated that he can verify from any of them that he has not done anything. Then he threatened the appellant Rahul that he should disclose everything, otherwise his life would be spoiled. Then Rahul replied that his life has already been spoiled and this witness should save him and thereafter the phone was disconnected. Thereafter he did not have any conversation with Rahul. Surprisingly, the trial Court has treated the evidence of Devendra (PW5) as an extra judicial confession of the appellant Rahul alias Rinku. The only thing which can be deciphered from the evidence of Devendra (PW5) is that when this witness threatened the appellant Rahul alias Rinku that he should tell the truth otherwise his life would be spoiled and it was replied by Rahul that his life has already been spoiled. There is no extra judicial confession that he has killed the deceased. Thus the circumstance of extra judicial confession which has been found proved by the trial Court is based on surmises and conjectures and is not based on any evidence as required under the law. Therefore the evidence of extra judicial confession found proved in favour of the prosecution cannot be given the stamp of judicial approval.
Whether the broken piece of mobile recovered from the possession of Rahul alias Rinku belongs to the deceased Raja Beti ?
It is suffice to mention here that the broken pieces of mobile phone were never got identified by the police from the father of the deceased and were also not proved before the Court and were never marked as article. Therefore in absence of any identification that the broken pieces of mobile which were recovered from the possession of the appellant Rahul alias Rinku belonged to the deceased, it cannot be said that the mobile phone of the deceased Raja Beti was recovered from the possession of Rahul alias Rinku.
Friendship between Rahul alias Rinku and the deceased Raja Beti and motive
Although the prosecution has relied upon the CDR of the mobile phone of Raja Beti and Rahul alias Rinku to prove that they were on talking terms, but that by itself will not lead to an inference that they had any illicit relationship or liking for each other. Even otherwise if Rahul alias Rinku and Raja Beti were friends, it by itself would not give any motive to the appellants to commit murder of Raja Beti. As already pointed out, in the postmortem report, no signs of rape were found. It is not the case of prosecution that Raja Beti was threatening or blackmailing Rahul alias Rinku. Therefore it is clear that there was no motive for the appellants to kill the deceased Raja Beti.
Whether the appellants ran away from their house
The Trial Court has relied upon the evidence of Kishunpal (P.W.1) to hold that immediately after the incident, the appellants were not found in their house. The Trial Court has also relied upon the evidence of Devendra (P.W.5) that he had a conversation with Rahul @ Rinku, and when he called Rahul @ Rinku, then the phone was attended by his brother Sonu. This clearly means, that the appellant Rahul @ Rinku was available and was talking to the witnesses. Further more, this Court has not found the evidence of Kishunpal (PW1) reliable.
False defence
The trial Court has also taken note of the denial made by the appellants in their statement under Section 313 of Cr.P.C as a circumstance against them. How a denial of a fact by the appellants in their statement under Section 313 of Cr.P.C can be taken as a circumstance against the appellant is beyond the understanding of this Court.
The Supreme Court in the case of Raj Kumar Singh v. State of Rajasthan reported in (2013) 5 SCC 722 has held as under:-
“41.In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 CrPC is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 CrPC cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 CrPC is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 CrPC. An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become a witness against himself.‖
From the plain reading of the evidence and the discussion made herein above, it is clear that the prosecution has failed to prove the circumstances alleged against the appellants. Unless and until each and every chain of circumstances is proved beyond reasonable doubt, it cannot be said that the prosecution has successfully proved the circumstantial evidences. Unfortunately it appears that the trial Court was governed by emotions rather than by logic and appreciation of evidence in accordance with law. It is made clear that conviction should not be the sole criteria for the trial Court. The trial Court should not lose sight of the fact that because of its casual attitude, the life of few persons who are being tried as an accused will get spoiled. The appellants are young boys and they have suffered conviction for offence under Section 302, 364 of IPC and 11/13 of MPDVPK Act and are in jail from the date of their arrest. It must have shown adverse effect on their career as well as on their mind set.
Be that whatever it may be.
For the reasons mentioned above, this Court is of considered opinion that the prosecution has miserably failed in proving the guilt of the appellants beyond reasonable doubt. Therefore, they are granted hounourable acquittal.
Accordingly, the conviction of the appellants for offence under Sections 302, 364 of IPC and 11/13 of MPDVPK Act is hereby set aside. The Judgment and Sentence dated 5-8-2016, passed by Additional Sessions Judge/Special Judge (under the MPDVPK Act), Lahar, District Bhind in Special Sessions Trial (Dacoity) No. 74/2015 is also hereby set aside.
The appellants are in jail. They are no more required in the present case. They be released immediately.
Let a copy of this judgment be sent to the trial Court along with the record for necessary information and compliance.
The appeals succeed and are, hereby, allowed.
The appellants are granted liberty to file a civil suit for recovery of compensation for their malicious prosecution.