Akshay @ Chhotya Kachar Jedgule v. The State of Maharashtra

7. In the case G. Parshwanath Vs. State Of Karnataka[1], in paragraph No.11, while enunciating the law relating to appreciation of evidence in a case based on circumstantial evidence, the Supreme Court has held as under: - “11. The evidence tendered in a court of law is either direct or circumstantial. Evidence is said to be direct if it consists of an eye-witness account of the facts in issue in a criminal case. On the other hand, circumstantial evidence is evidence of relevant facts from which, one can, by process of intuitive reasoning, infer about the existence of facts in issue or factum probandum. In dealing with circumstantial evidence there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of roof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. However, it is not derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances cannot fail. Therefore, many a times it is aptly said that “men may tell lies, but circumstances do not”. In cases where 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. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The Court thereafter has to consider the effect of proved facts. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved fact, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even thought it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court.”

8. In the case Surajdeo Mahto Vs. The State of Bihar[2], paragraph Nos.29 and 30 has laid down the fundamental principles to be kept in mind while adjudicating a criminal case founded on “last seen together” theory is read as under:-

9. In the present case, Mr. Mali has drawn our attention to the supplementary statement of Appellant recorded under Section 313 of Cr.P. C. on 03.12.2016, which is marked in evidence as Exh.39. On perusal of the supplementary statement it is revealed that Appellant has given a clarification and disclosure of the incident. Appellant has stated that at about 09:00 p.m. on the date of incident i.e. 18.11.2013 while passing through the shop belonging to Binilkumar he saw deceased in an inebriated state lying/sleeping near the cycle puncture shop on the road; since there was movement of heavy vehicular traffic on the road and deceased was lying near edge of the road, he approached him, woke him up and in order to prevent any accidental mishap took him on the opposite side of the road and made him lie down next to Prerna hotel; that thereafter at about 9:30 p.m. he went to his residence. Mr. Mali has submitted that in view of this statement it is highly unlikely that Appellant can be said to have committed murder of deceased, merely on the basis of the depositions of PW-2 and PW-3 who had last seen both of them together at about 09:00 p.m. He submitted that the entire prosecution case is based upon the “last seen together theory” which incidentally has never been denied by the Appellant.

10. Mr. Mali submitted that, the case of prosecution has to be based upon clear, cogent and unimpeachable evidence produced by prosecution and in the case of circumstantial evidence, guilt of accused is to be proven on the basis of proof beyond reasonable doubt; that reasonable doubt is not an imaginary, trivial or merely a probable doubt, but a fair doubt that is based upon common sense.

11. In order to emphasis the settled legal position qua Section 313 of Cr.P.C. Mr. Mali placed on record for consideration the decision of the Apex Court in case of Sujit Biswas Vs. State of Assam[3]; paragraph Nos. 18 to 20 of the said judgment read thus:-

20. It is a settled legal proposition that in a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C., is to meet the requirement of the principles of natural justice, i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 Cr.P.C., cannot be used against him and must be excluded from consideration. The said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act, as the accused cannot be crossexamined with reference to such statement.”

12. In the present case, it is seen that the case of prosecution is based entirely upon one singular circumstance i.e. depositions PW-2 and PW 3 of having seen deceased with the accused together at about 9:00 p.m. on 18.11.2013. Admittedly, there is no direct evidence or eye witness to the incident/death of deceased. Supplementary statement of Appellant recorded under Section 313 of Cr.P.C gives a clear explanation in relation to the last seen together theory argued by the prosecution as an incriminating circumstance against Appellant.

13. In our considered opinion Appellant has infact discharged the burden under Section 106 of the Indian Evidence Act, 1872 of the fact of having accompanied deceased on 18.11.2013 when they were last seen by PW-2 and PW-3; the explanation offered by Appellant is cogent, clear and ought to have been considered by the learned Trial Court. On the contrary in paragraph Nos. 28 and 29 of the impugned judgment the learned Trial Court after considering the explanation has deemed it to be not satisfactory. We do not agree with the conclusion given by the Trial Court in discarding it as not satisfactory. Infact there is no reasoning given by the Trial Court at all.

14. In the present case, Appellant has clearly explained the facts which are especially within his knowledge. It is pertinent to note that save and except the “last seen together” theory there is no other circumstance proved to indict the accused. Admittedly prosecution has also not proved any motive in the case. On a minute perusal of the record of the case, it is seen that there is satisfactory explanation given by accused in his supplementary statement recorded under Section 313 of Cr.P.C. which is a probable explanation and thus it requires due consideration.

15. We may also usefully refer to the factors etched by the Apex Court which are required to be taken into account in adjudication of cases of circumstantial evidence. In para 14 of the decision in the case of Anjan Kumar Sarma and Ors. Vs. State of Assam[4], the Apext Court has held as under:-

16. In the present case, it is further seen that save and except the circumstance that PW-2 and PW-3 had last seen the accused with the deceased four hours before the probable time of death, there is no other cogent evidence bought on record by the prosecution to link the accused to the commission of the offence. Admittedly merely on the basis of “last seen together” theory relied upon by the prosecution in the facts of the present case cannot be held to be the basis for conviction of the accused. It is further pertinent to note that the accused was not confronted with the CA report in the present case when his statement was recorded under Section 313 of Cr.P.C.. No question was put to the accused with respect to the CA report having reference to the bloodstained clothes and the blood group found thereon. Hence, in that view of the matter the reliance of the prosecution case on the CA report and the recovery and seizure of the blood-stained clothes needs to be discarded and cannot be countenanced. It has also come in evidence that deceased had on the date of incident sold his cattle (bullocks) and therefore was having money on his person; that apart, he was admittedly in an inebriated state; hence the possibility of the deceased having been robbed and killed by some third person cannot be completely ruled out. This is so because according to the medical evidence, death of deceased occurred around 1:00 a.m. on 19.11.2013, whereas PW-2 and PW-3 had last seen the accused and deceased together at 9:00 p.m. on 18.11.2013. It is further seen that prosecution has not propounded any motive in the present case.

17. Thus, in the present case we are of the considered view that, the chain of circumstances is incomplete and the prosecution has failed to prove its case beyond reasonable doubts.

18. In view of the above discussion and findings, the impugned Judgment and Order dated 30.12.2016 is quashed and set aside. Appellant (accused) be released forthwith unless required to be imprisoned in any other offence.

19. Criminal Appeal No. 706 of 2017 is allowed in the above terms.

20. Before parting with the Judgment, we would like to place on record appreciation for the efforts put in by Mr. Pawan Mali, learned Advocate appointed by High Court Legal Services Committee, Mumbai for espousing the cause of the Appellant; he was thoroughly prepared in the matter and rendered proper and able assistance to the Court. [ MILIND N. JADHAV, J. ] [ A.S. GADKARI, J.]