Tuesday, 9 April 2013

bail on parity ground

.
Bail on Parity Ground.


Manoj Kumar Sharma vs State Of Chhattisgarh on 8 March, 2010
Misc Criminal Case 507 of 2010
Manoj Kumar Sharma
...Petitioners
Versus
State of Chhattisgarh
...Respondents
! Mr Satish L Maneshinde ,Mr Sunil Otwani ^ Mr Ashish Shukla
CORAM: Honble Mr T P Sharma J
Dated: 08/03/2010
: JUDGEMENT
ORAL ORDER
Application under Section 439 of the Code of Criminal Procedure 1973
1. I.A.No.1, application for taking documents on record, is allowed. Documents are taken on record.
2. The applicant has filed this application under Section 439 of the Cr.P.C. for grant of regular bail, as he is in custody in connection with Crime No.377/2009 (Sessions Trial No.16/2010 pending before the Sessions Judge, Korba), registered at Police Station Balco, Korba, Distt. Korba, for the offence punishable under Sections 304 read with Section 34, 326 & 324 of the I.P.C.

3. I have heard learned counsel for the parties and perused the case diary.

4. This is the second bail application filed on behalf of the applicant for grant of regular bail. The application is supported by the affidavit of R.P. Sharma, co-brother-in-law of the applicant. First application filed on behalf of the applicant has been rejected by this Court vide order dated 11-11-2009 passed in M.Cr.C.No.2500/2009.
5. Mr. Satish L. Maneshinde, learned counsel for the applicant, submits that this is the second bail application filed on behalf of the applicant for grant of regular bail after dismissal of first bail application, on the following grounds/change in circumstances: -
(1) That, after dismissal of first bail application, the prosecution has filed charge sheet on 3-1-2010. (2) That, before filing of charge sheet, other co-accused persons namely, Deepak Narang, Anup Mahapatra & Viral Mehta had filed applications before this Court for their release vide Misc. Criminal Case Nos.2863/2009, 2864/2009 & 2866/2009, respectively, which were rejected by this Court vide order dated 17-12-2009. Thereafter, they have filed applications for bail before the Apex Court and the Apex Court has released them on bail vide order dated 19-2-2010. (3) That, the State Government has asked report from National Council for Cement and Building Materials which has submitted its report on 4th January, 2010 and found that the material used for construction was not below standard and was within the limit prescribed. The report so submitted by National Council for Cement and Building Materials has not been filed by the prosecution along with the charge sheet and the prosecution has deliberately concealed the report which is in favour of the accused.
(4) The applicant is entitled for bail on the ground of parity and equal treatment.
6. Mr. Satish L. Maneshinde, learned counsel for the applicant, further submits that after rejection of bail application of the applicant herein by this Court, other three accused persons have filed applications for bail before this Court which have been rejected and finally they have been enlarged on bail by the Apex Court. Although the Apex Court has not assigned detailed reasons for granting bail to them, but the Apex Court has specifically mentioned that upon hearing learned counsel for the parties in the facts and circumstances of the case, the petitioners be released on bail to the satisfaction of the trial Court, which reveals that the Apex Court has considered the grounds which have been taken by the co-accused persons in the S.L.P. Co-accused persons have taken elaborate grounds in their petition before the Apex Court which have been mentioned in the S.L.P. viz., the co-accused persons were not incharge of the work; they were not present at the time of commission of the offence; they have not deliberately or intentionally committed any act of causing death of the persons; at the worst it may be the case of "industrial accident" and they were not liable for any criminal act. All these grounds have been considered by the Apex Court while granting them bail. Therefore, the applicant herein whose first bail application has been rejected by this Court and after filing of charge sheet whose bail application has been dismissed by the Sessions Judge only on the ground of seriousness of the offence, is entitled for equal treatment on the ground of parity. Mr. Satish L. Maneshinde, learned counsel for the applicant, strongly submits that filing of charge sheet, obtaining certificates from different institutions, grant of bail to other co-accused persons by the Apex Court are substantial changes in the circumstances and the Court is competent to re-appreciate the grounds which have been argued earlier and the grounds which he is raising today in the second bail application. Learned counsel also submits that he has elaborately taken new grounds in addition to the old grounds already taken in the first bail application viz., paras 6.15 to 6.17 of the instant bail application that the Company in-charge of construction work was BALCO not GDCL; GDCL was only the executing Company which has carried out the work; the applicant herein was posted as Site Manager and in accordance with the Power of Attorney he was authorized to sign certain papers and not authorized to control the work and it may be the case in which liability may be fastened on the applicant as vicarious liability which is not applicable in criminal justice. Learned counsel placed reliance in the matter of Babu Singh and others v. The State of Uttar Pradesh1 in which the Apex Court has held that application for bail rejected at earlier stage - Order refusing bail does not bar fresh application on later occasion giving more details, further developments and different consideration. At the time of grant of bail the Court is required to consider the following circumstances: -
(1) The nature of the accusation
(2) The nature of the evidence in support of the accusation (3) The severity of the punishment which conviction will entail.
In the present case, there is no likelihood of absconding of the applicant or fleeing from justice and nature of accusation is not so serious. Learned counsel further placed reliance in the matter of Sureshchandra Ramanlal v. State of Gujarat and another2 in which the Apex Court has held that co-accused is entitled for equal treatment and is entitled for bail on the ground of parity. Learned counsel also placed reliance in the matter of Izharul Haq Abdul Hamid Shaikh and another v. State of Gujarat3 in which while dealing with the question of parity, the Apex Court has enlarged other co-accused on bail.

7. On the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, vehemently opposes the application and submits that first bail application of the applicant has been rejected by this Court on merits and after dismissal of first bail application there is no change in the circumstances, only filing of charge sheet is not change in the circumstances. While granting bail to other co-accused persons who are officers of BALCO, the Apex Court has not assigned grounds, even otherwise, the officers of GDCL working at the site are substantially liable for punishment because, they were executing the work assigned to them by BALCO through SEPCO. The act attributed to the applicant herein is not similar to that of the other co-accused namely, Deepak Narang, Anup Mahapatra & Viral Mehta to whom the Apex Court has granted bail. Therefore, in absence of any change in the circumstances, the applicant is not entitled for bail.
8. This is the second bail application after dismissal of first bail application by this Court on 11-11-2009. The applicant is entitled for bail in case of change in the circumstances and second bail application is maintainable in case of change in the circumstances. While dealing with the question of maintainability of second bail application and change in the circumstances, the Apex Court in the matter of Babu Singh (supra) has held that
"2. Briefly we will state the facts pertinent to the present petition and prayer and proceed thereafter to ratiocinate on the relevant criteria in considering the interlocutory relief of bail. Right at the beginning we must mention that at an earlier stage, their application for bail was rejected this Court on September 7, 1977. But an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments and different considerations. While we surely must set store by this circumstance, we cannot accede to the faint plea that we are barred from second consideration at a later stage. An interim direction is not a conclusive adjudication, and updated reconsideration is not overturing an earlier negation. In this view, we entertain the application and evaluate the merits pro and con."
Further, while dealing with the question of grant or refusal of bail, the Apex Court in the above cited matter has held that the test should be applied by reference to the following considerations: -
(1) The nature of the accusation
(2) The nature of the evidence in support of the accusation (3) The severity of the punishment which conviction will entail.
While dealing with the aforesaid question, the Apex Court has further held in para 17 of the above judgment that "Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice to the individual involved and society affected."
9. As held by the Apex Court in the matters of Sureshchandra & Izharul (supra), co-accused is entitled for equal treatment on the ground of parity.

10. In the present case, the Apex Court has granted bail to the co-accused persons who are officers of BALCO, the main construction company which entered into agreement with SEPCO for construction of chimney and SEPCO in turn, entered into agreement with GDCL for construction of chimney. GDCL was constructing the chimney and the applicant herein was Site Manager and was present on the spot at the time of alleged incident. The Apex Court while granting bail to the officers of BALCO has held thus,
"Heard learned counsel for the parties. In the facts and circumstances of the cases, petitioners be released on bail to the satisfaction of the Trial Court."
11. The applicant herein was working with GDCL which was constructing the chimney and he was Site Manager present on the spot. After considering the role attributed to the applicant and the circumstances, first bail application of the applicant has been rejected on merits vide order dated 11-11-2009. The role attributed to the other co-accused persons who are officers of BALCO is not similar to that of the applicant herein. It is needless to say that after rejection of first bail application on merits no different consideration would be possible. Mere filing of charge sheet is not change in the circumstances. On due consideration, I do not find any change in the circumstances or entitlement of the applicant for bail on the ground of parity. Consequently, the second bail application is also rejected, at the admission stage itself.
JUDGE

Statement u/s 161 of crpc.



Statement u/s 161 of crpc. 

"the statement recorded by the police under Section 161 Cr.P.C. in a case
deceased in abduction case is not admissible under Section 162 Cr.P.C. and, therefore, the prosecution could not have relied upon the statement of the deceased Kalu recorded by the police.
9. The question is whether the statement recorded under Section 161 Cr.P.C. of the deceased Kalu in a case registered under FIR No. 290/2000 (abduction case) is admissible in the case registered under FIR No. 301/2000 (murder trial) in view of the provisions of Section 162 Cr.P.C. Section 162 Cr.P.C. reads as under:
"162. Statements to police not to be signed: Use of statements in evidence.  (1) No statement made by any person to a police officer in the course of an investigation under this chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called
statement falling within the provision of clause (1) of Section 32 of the Evidence Act, nor it shall affect Section 27 of the Evidence Act. Bar of Section 162 Cr.P.C. is in regard to the admissibility of the statement recorded of a person by the police officer under Section 161 Cr.P.C. and by virtue of Section 162 Cr.P.C. would be applicable only where such statement is sought to be used at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.
10. In the case of Khatri and Others v. State of Bihar & Ors., AIR 1981 SC 1068, this Court has held that Section 162 Cr.P.C. bars the use of any statement made before the police officer in the course of an investigation under Chapter XII, whether recorded in the police diary or otherwise. However, by the express terms of Section, this bar is applicable only where such statement is sought to be used `at any inquiry or trial' in respect of any offence under investigation at the time when such statement was made. If the statement made before a police officer
prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement. "
15. We have analysed the statement of the deceased Kalu made to the police under Section 161 Cr.P.C. We do not find that the statement of the deceased was in regard to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death. The statement is in regard to the accused's involvement in the abduction of a boy and has no remote connection or reference to the death of the deceased and thus would not be admissible under Section 32 of the Evidence Act. The statement recorded by the police although could be proved as there would not be any bar under Section 162 Cr.P.C. for proof of such statement, but it would not be admissible under Section 32 of the Evidence Act, and thus it could not have been relied upon by the prosecution to prove the motive for commission of the crime

Vinay D. Nagar vs State Of Rajasthan on 3 March, 2008
Author: P Naolekar
Bench: P Naolekar, L S Panta
CASE NO.:
Appeal (crl.) 210 of 2007
PETITIONER:
Vinay D. Nagar
RESPONDENT:
State of Rajasthan
DATE OF JUDGMENT: 03/03/2008
BENCH:
P.P. NAOLEKAR & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO.210 OF 2007
P.P. NAOLEKAR,J.
1. This criminal appeal by special leave is directed against the judgment and order dated 23.11.2004 passed by the High Court of Rajasthan, Jaipur Bench in Criminal Appeal (DB) No. 990/2002, which upheld the conviction and sentence of the appellant under Sections 364, 450, 302, 201 of the Indian Penal Code, 1860 (for short "I.P.C.").
2. The relevant facts of the case as per the prosecution are that Kalu (the deceased) was Chowkidar in the office of Agriculture Extension Bundi and his duty was during the night in the office premises. He was found missing under mysterious circumstances on 15.07.2000, hence informant Ramesh Chand Jain, Assistant Director lodged a written report on 15.07.2000 at 7:30 am in the Police Station, Bundi. On the basis of the report, a case under Section 456/364 IPC was registered and investigation commenced. During the investigation, it was revealed that Kalu was a star witness in a criminal case registered against the appellant-Vinay D. Nagar and others under Sections 365, 364, 328, 342, 323 IPC. As per the prosecution case, the accused along with his other companions had abducted a child Sonu on 07.07.2000 and had brought Sonu in the office where Kalu was Chowkidar and kept him in the office for some time. The activities of the accused and his companions made Kalu suspicious. Since Kalu had seen the accused with Sonu and as the accused was a Clerk in the same office where Kalu was posted as a Chowkidar, the statement of Kalu was recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C."). The Investigating Officer moved an application before the Magistrate on 12.07.2000 to record the statement of Kalu under Section 164 Cr.P.C. and Kalu was to be produced before the Magistrate on 17.07.2000, the date given by the Magistrate. But in the intervening period, his dead body was found in a tank on 19.07.2000. The post mortem report indicated that the death of the deceased was homicidal. The appellant-accused was arrested and put to trial. In his statement under Section 313 Cr.P.C., he stated that on the relevant date he had gone to Bombay, but the explanation was found false in view of the evidence led by the prosecution whereby it was found that he had gone to Ahmedabad and not to Bombay. The Session Court found the accused guilty and convicted him.
3. The accused preferred an appeal before the High Court which was dismissed holding that in the fact- situation the deceased had seen the accused with Sonu and had named the accused as the main culprit. The statement of Kalu was recorded under Section 161 Cr.P.C. on 10.07.2000. On 09.07.2000, the accused absented himself from the office and disappeared without submitting any leave application. Later on, Kalu was found dead on 19.07.2000. It was held by the High Court that the evidence collected by the prosecution shows that the accused had a strong motive and the opportunity for committing a crime. The High Court further held that the accused was absconding and hence the disappearance of the accused after the occurrence was a relevant circumstance which in the absence of plausible rebuttal evidence can be taken into consideration. The High Court was of the view that from the aforesaid circumstances an inference can be drawn towards the appellant's guilt. All the aforementioned circumstances taken cumulatively have formed a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the appellant and none else. Hence, the appeal was dismissed by the High Court.
4. It is urged by Shri U.U. Lalit, learned senior counsel for the appellant that the appellant's conviction is based on circumstantial evidence. The prosecution has relied upon the statement made by the deceased Kalu under Section 161 Cr.P.C. to prove the motive for commission of the crime. As per the learned senior counsel, the statement of Kalu under Section 161 Cr.P.C. read with Section 32 of the Indian Evidence Act, 1872, is not admissible and thus the courts below have committed an error in relying on the statement made by the deceased Kalu under Section 161 Cr.P.C. for the alleged motive of the appellant to commit the crime. It is further urged that the prosecution has completely failed to prove the chain of circumstances which should point to the guilt of the accused and none else.
5. This Court in several cases has expounded principles for cases based on circumstantial evidence. In the case of C. Chenga Reddy & Ors. v. State of Andhra Pradesh, AIR 1996 SC 3390, this Court in para 20-A observed thus:
"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. "
Further, in Padala Veera Reddy v. State of Andhra Pradesh & Ors., 1989 (Supp) 2 SCC 706, it was laid down 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 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.
The principle of law is well established that where the evidence is of a circumstantial nature, circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and the facts, so established, should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and they should be such as to exclude hypothesis than the one proposed to be proved. In other words, there must be chain of evidence so 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.
6. The circumstances on which the reliance has been placed by the prosecution are that Kalu was the prime witness in Sonu's kidnapping case and had made Section 161 Cr.P.C. statement alleging that the accused was responsible for abduction of Sonu; that it was apprehended by the appellant that Kalu would make a statement before the Magistrate under Section 164 Cr.P.C. on 17.07.2000 indicting the appellant, hence the appellant-accused had strong motive to eliminate Kalu; that the accused absented himself from the office from 10.07.2000 without taking leave; and that in his Section 313 Cr.P.C. statement he stated that he had gone to Bombay but it was found out that he actually stayed in Ahmedabad under the fictitious name in a hotel from 11.07.2000 to 12.07.2000 and thereafter in another hotel till 14.07.2000; and that there was a possibility of the accused reaching Bundi from Ahmedabad on the date of the incident. The fact that he stayed in Ahmedabad under fictitious name has been relied upon by the prosecution to show that his conduct was suspicious. On 15.07.2000, Kalu was found missing under suspicious circumstances and his dead body was found on 19.07.2000.
7. In the statement recorded by the police under Section 161 Cr.P.C. in a case registered under FIR No. 290/2000, the deceased Kalu had stated that he was on duty from 5.00 in the evening till 10.00 in the morning of 8.7.2000. At about 8.30 p.m., two men came in a Maruti car and Vinay D. Nagar, Cashier in his Department came on a motorcycle. They sat in the officer's room and started making phone calls. On enquiry being made by him, the accused told him that he was calling some acquaintance. Thereafter, he went to take meals and when he returned after half an hour, all the three persons were still there and they left in the same car at 9.00 p.m. The motorcycle of the accused was left there. At 5.00 in the morning, Vinay climbed over the gate and entered the office. Vinay woke him up and took out the keys from the bag. He opened the main gate and brought the car inside. He opened the shutter in the verandah and the room. First he took keys and opened the computer room and then brought out one child from the rear seat of the Maruti van and put him in the computer room. That child was kept lying in the computer room for 10-15 minutes. Then after 10-15 minutes they came out of that room and all three of them put the child in the Maruti van and left. He stated that he had read the newspaper and learnt from others that last night one boy had been abducted. He stated that he could identify all four persons who had come to him.
8. It is urged by the learned senior counsel that the statement recorded by the police under Section 161 Cr.P.C. of the deceased in abduction case is not admissible under Section 162 Cr.P.C. and, therefore, the prosecution could not have relied upon the statement of the deceased Kalu recorded by the police.
9. The question is whether the statement recorded under Section 161 Cr.P.C. of the deceased Kalu in a case registered under FIR No. 290/2000 (abduction case) is admissible in the case registered under FIR No. 301/2000 (murder trial) in view of the provisions of Section 162 Cr.P.C. Section 162 Cr.P.C. reads as under:
"162. Statements to police not to be signed: Use of statements in evidence.  (1) No statement made by any person to a police officer in the course of an investigation under this chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872; and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872, or to affect the provisions of section 27 of that Act.
Explanation.- An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."
On account of Section 162 Cr.P.C., a statement made by any person to a police officer in the course of investigation under Chapter XII, if reduced into writing, will not be signed by the person making it, nor such statement recorded or any part thereof be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. Such statement may be used by an accused and with the permission of the Court by the prosecution to contradict the witness whose statement was recorded by the police in the manner provided under Section 145 of the Indian Evidence Act and can also be used for re- examination of such witness for the purpose only of explaining any matter referred to in his cross-examination. Bar of Section 162 Cr.P.C. of proving the statement recorded by the police officer of any person during investigation however shall not apply to any statement falling within the provision of clause (1) of Section 32 of the Evidence Act, nor it shall affect Section 27 of the Evidence Act. Bar of Section 162 Cr.P.C. is in regard to the admissibility of the statement recorded of a person by the police officer under Section 161 Cr.P.C. and by virtue of Section 162 Cr.P.C. would be applicable only where such statement is sought to be used at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.
10. In the case of Khatri and Others v. State of Bihar & Ors., AIR 1981 SC 1068, this Court has held that Section 162 Cr.P.C. bars the use of any statement made before the police officer in the course of an investigation under Chapter XII, whether recorded in the police diary or otherwise. However, by the express terms of Section, this bar is applicable only where such statement is sought to be used `at any inquiry or trial' in respect of any offence under investigation at the time when such statement was made. If the statement made before a police officer in the course of an investigation under Chapter XII is sought to be used in any proceeding, inquiry or trial in respect of an offence other than which was under investigation at the time when such statement was made, the bar of Section 162 will not be attracted.
11. When the statement of Kalu was recorded by the police officers under Section 161 Cr.P.C. during the investigation of abduction case of a boy, Kalu was alive and thus that statement could be used in the subsequent investigation that was being made with respect to the alleged murder of Kalu.
12. It is then urged by the learned senior counsel that even on lifting of Section 162 bar, it by itself will not make the statement of Kalu recorded by the police admissible in evidence. Statement can be admitted in evidence only by virtue of any of the provisions contained in the Evidence Act. Therefore, even if the Section 162 bar would not apply to Kalu's 161 statement, would it be admissible in evidence. Then the next step would be to see as to under which provision of the Evidence Act, the same shall be admissible. According to the learned senior counsel, the statement of a person who is not alive for the purpose of cross-examination in case need arises, would be admissible only if it falls within the four corners of Section 32 of the Indian Evidence Act.
13. Section 32 of the Indian Evidence Act enumerates eight clauses in which the statements made by a dead person or a person who cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured in court can be admitted in evidence. Clauses (2) to (8) of Section 32 are not material for the purpose of deciding the present case. The relevant provision reads as under: "32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) When it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the
person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
Clause (1) says that when a statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, such statement would be relevant. So the question is whether the statement made by deceased Kalu under Section 161 Cr.P.C. in previous investigation would be admissible as per the second part of Section 32(1) of the Evidence Act which says that the statement made by a person as to the `circumstances of the transaction which resulted in his death' would be admissible and whether the deceased's statement under Section 161 Cr.P.C. falls under `circumstances of the transaction which resulted in his death'.
14. In the case of Pakala Narayana Swami v. Emperor, AIR 1939 PC 47, it was held that a statement merely suggesting motive for a crime cannot be admitted in evidence unless it is so intimately connected with the transaction itself as to be a circumstance of the transaction.
In the case of Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, this Court in para 21 held as under:
"Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge: (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar, conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of S. 32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a strait-jacket. Distance of time would depend on vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under S. 32.
(3) The second part of Cl. (1) of S. 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross- examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.
(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.
(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant."
Further, in the case of Rattan Singh v. State of Himachal Pradesh, AIR 1997 SC 768, this Court has held as under: "Section 32(1) of the Evidence Act renders a statement relevant which was made by a person who is dead in cases in which cause of his death comes into question, but its admissibility depends upon one of the two conditions: Either such statement should relate to the cause of his death or it should relate to any of the circumstances of transaction which resulted in his death. The collocation of the words in Section 32(1) "circumstances of the transaction which resulted in his death" is apparently of wider amplitude than saying "circumstances which caused his death". There need not necessarily be a directed nexus between "circumstances" and "death". It is enough if the words spoken by the deceased have reference to any of the transactions which ended up in the death of the deceased. Such statement would also fall within the purview of Section 32(1) of the Evidence Act. In other words, it is not necessary that such circumstance should be proximate, for, even distant circumstances can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in the death."
(Headnote-B)
In the case of Kans Raj v. State of Punjab & Ors., AIR 2000 SC 2324, a 3-Judge Bench of this Court dealt with Section 32(1) statement made by the deceased who had allegedly died due to dowry harassment and in para 10 held as under: "Section 32 of the Evidence Act is an exception to the general rule of exclusion of hearsay evidence and the statements of a person, written or verbal, of relevant facts, after his death are admissible in evidence if they refer to the cause of his death or to any circumstances of the transaction which resulted in his death. To attract the provisions of Section 32, for the purposes of admissibility of the statement of a deceased the prosecution is required to prove that the statement was made by a person who is dead or who cannot be found or whose attendance cannot be procured without an amount of delay or expense or he is incapable of giving evidence and that such statement had been made under any of the circumstances specified in sub-sections (1) to (8) of Section 32 of the Act. Section 32 does not require that the statement sought to be admitted in evidence should have been made in imminent expectation of death. The words "as to any of the circumstances of the transaction which resulted in his death" appearing in Section 32 must have some proximate relation to the actual occurrence. In other words, the statement of the deceased relating to the cause of death or the circumstances of the transaction which resulted in his death must be sufficiently or closely connected with the actual transaction. To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement. "
15. We have analysed the statement of the deceased Kalu made to the police under Section 161 Cr.P.C. We do not find that the statement of the deceased was in regard to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death. The statement is in regard to the accused's involvement in the abduction of a boy and has no remote connection or reference to the death of the deceased and thus would not be admissible under Section 32 of the Evidence Act. The statement recorded by the police although could be proved as there would not be any bar under Section 162 Cr.P.C. for proof of such statement, but it would not be admissible under Section 32 of the Evidence Act, and thus it could not have been relied upon by the prosecution to prove the motive for commission of the crime by the accused appellant.
16. We have gone through the evidence placed on record by the prosecution. None of the witnesses stated that at the relevant time and/or relevant date, they had seen the accused at Bundi. The witnesses examined by the prosecution have proved the fact that the accused stayed at some of the hotels in Ahmedabad, but there is no proof of the fact that he checked in the hotel(s) giving the fictitious name. There is no proof of the accused being last seen with the deceased. The prosecution has failed to prove the accused's presence on the date of the incident at Bundi. The evidence adduced by the prosecution does not point to the guilt of the accused. The circumstances on which the High Court has placed reliance do not establish the guilt of the accused, nor does it exclude every hypothesis but the one proposed to be proved by the prosecution. The prosecution has failed to prove the chain of evidence by which one could clearly and unequivocally reach to the conclusion of pointing the guilt of the accused-appellant for commission of the crime.
17. For the aforesaid reasons, the appeal is allowed. The judgment of the High Court and that of the Session Court are set aside. The accused-appellant is directed to be set at liberty if he is not required in any other case.




statement u/s 164 of crpc.


statement u/s 164 of crpc.


application moved for that purpose was assigned (PW-12 ShriS.Sharma) did not record their statements as provided under
Section 164 Cr.P.C. and instead read over to the witnesses their
statements under Section 161 Cr.P.C. and since witnesses stated
before the Magistrate that they had nothing more to say except
whatever they had stated in their statements under Section 161
Cr.P.C. the Magistrate passed separate orders on the applications of
the investigating officer that there was no need of recording their
statements u/s 164 Cr.P.C. "

IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 22nd January, 2010 + CRIMINAL APPEAL NO. 57 of 1994 Kashmira Singh & Ors. ..... Appellants - versus -
The State .....Respondent Advocates who appeared in this case:
For the Appellant : Mr. Anil Soni, amicus curiae. For the Respondent : Mr. M.N. Dudeja, APP.
CORAM:
* HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HONBLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see the judgment?(Yes)
2. To be referred to the Reporter or not?(Yes)
3. Whether the judgment should be reported in the digest?(Yes) JUDGMENT
P.K.BHASIN, J:
This appeal was filed by three persons impugning the judgment and order dated 12-01-1994 passed by the Court of an Additional Sessions Judge whereby they were convicted for the offence punishable under Section 302/34 IPC for committing the murder of one Baljit Singh @ Bitta and were sentenced to undergo life imprisonment and also to pay fine of Rs. 2000/- each with a stipulation of six months further rigorous imprisonment in case of default in payment of fine.
Crl.A. 57/1994 Page 1 of 31
2. Devoid of voluminous details, the prosecution case is that on January 24, 1986 a dead body of one Baljit Singh s/o Sunder Singh (PW-5) was found lying in a bunga (a temporary storage for fodder) in village Jhangola, within the jurisdiction of Alipur police station, belonging to one Sunder Singh. That dead body was noticed by Sunder Singhs son, Kulwant Singh and on being informed about that, Sunder Singh s/o Pathana, PW-7, went to Alipur police station and informed the police about the discovery of a dead body in his bunga by his son Kulwant Singh. That information was recorded as DD No. 4-A and its copy was handed over to the SHO for enquiry. The SHO of that police station, PW-18, Inspector Raj Mahender Singh, along with Sub- Inspector Manohar, ASI Sita Ram and other staff as also the informant Sunder Singh went to the bunga and found a dead body lying there which was identified to be that of PW-5, Sunder Singhs 19 years old son Baljit Singh, who was also a resident of village Jhingola and had reached the spot on being informed by Kulwant Singh about the recovery of the dead body of his son. Some bleeding injuries were noticed on different parts of the dead body during the inquest proceedings. The skull was noticed to be broken. PW-5 gave his statement to the police on the basis of which a case under Section 302/34 IPC was registered by the police at about 11.45 a.m. on 24th January, 1986 vide FIR Ex.PW-2/C. Sunder Singh stated in that statement, Ex.PW-4/A, that the previous evening at about 6 p.m. he was present at his house along with his son Baljit Singh when Bishan Crl.A. 57/1994 Page 2 of 31 s/o Kartar Singh, Kashmir s/o Uttam Singh and Kehri s/o Satnam Singh, all of whom were residents of his village Jhangola and known to him came and asked his son Meeta to come along for a stroll in the fields. His son accompanied them but did not return home during the night. On that day i.e. 24th January, at about 9 a.m. Kulwant s/o Sunder Singh (PW-7) had come to his house and told him that the body of Baljit was lying in their bunga (place for storing toora). Sunder Singh expressed his suspicion that the above-named three persons had, because of the enmity with them due to some on-going land dispute killed his son and thrown the body inside the bunga.
3. On 25th January, 1986 post-mortem examination was conducted on the dead body of the deceased by PW-11 Dr. L.T.Ramani. In the post-mortem report Ex.PW-11/A the following observations were made by the autopsy surgeon on external and internal examination of the corpse:
"External injuries:
1. Abrasion 2 ½" x 1 ½" on the middle of forehead.
2. Abrasion 1 ½" x 1 1/2'" on the right cheek bone area;
3. Abrasion 1" x ½" on the upper lip in mid-line;
4. Y shaped laceration of 1 ½" x ¾" x scalp deep on the vault of the skull in midline;
5. Compound fracture of left ulna bone at its lower third with bruising of the postero lateral aspect and laceration ¾" x ½" x muscle deep. There was massive blood clots under the bruise;
6. There was diffused bruising with swelling on the dorsum of leg hand;
7. Extensive bruising diffusely present on left arm, elbow and upper part of forearm on the outer aspect 6" x 4" area with extra vacation of blood under the bruises.
Crl.A. 57/1994 Page 3 of 31
8. Reddish bruise mark 4" x 1 ½" on the postero lateral aspect of right fore-arm placed vertically;
9. Multiple bruises on both scapular areas at back of chest scattered in various directions. Size of bruises varied from 3" to 6" x 1 ½".
10. Multiple bruises on left buttock;
11. Bruise with abrasion 3" x 1" size on the back of right knee;
12. Bruise 4" x 1" on right leg lower part, on the outer aspect;
13. Multiple bruises and abrasions present on the front of both legs;
14. Swelling on the dorsum of left foot;
15. Bruise with abrasion 2" x 1" size present behind left ear, over mastoid region. There was massive extra vacation of blood under the bruise.
Internal examination revealed as follows:
There was haematoma in the scalp over left temporo parietal region, skull bones were intact. There was thin sheet of subdural haemorrhage on the left hemisphere. Neck structures were intact. Trachea was normal. Ribs were intact. Lungs were pale and bloodless. Right lung showed bruising. Heart was normal. Stomach was full and contained digested food material. Other abdominal organs were normal."
All injuries were opined to be ante-mortem caused by blunt weapon. Injuries over the skull and other injuries collectively were found to be sufficient to cause death in the ordinary course of nature. Cause of death was opined to be haemorrhagic shock and coma resulting from the aforesaid injuries. Time since death from the start of post-mortem, which was at about 12.15 p.m. on 25th January, 1986, was opined to be about 36 hours.
4. In view of the suspicion expressed by the father of the deceased against three persons named in the first information report the police arrested all three of them. During investigation PW-3 Harpal Singh also claimed to have seen the deceased in the company of the Crl.A. 57/1994 Page 4 of 31 accused in the night of 23rd January, 1986 coming from village Jhingola and going towards Yamuna river. The witness also claimed to have heard accused Bishan Singh telling the deceased at that time that he (the deceased) was stealing their illicit liquor kept concealed under the sand and so they had brought him from his house to settle the score with him that day. (That was also alleged to be the motive for the murder). PW-9 Gholu, who was living in a jhuggi on the Yamuna bank near Jhangola village, claimed to have seen the deceased being caught by the accused persons who were armed with lathies at about 8 p.m. on 23rd January, 1986 at a place near his jhuggi and at that time the accused were telling the deceased that since he was stealing their liquor they would settle the score that day. The investigating officer had moved applications before the concerned Magistrate for recording statements of these two witnesses under Section 164 Cr.P.C. but the Metropolitan Magistrate to whom the application moved for that purpose was assigned (PW-12 Shri H.S.Sharma) did not record their statements as provided under Section 164 Cr.P.C. and instead read over to the witnesses their statements under Section 161 Cr.P.C. and since witnesses stated before the Magistrate that they had nothing more to say except whatever they had stated in their statements under Section 161 Cr.P.C. the Magistrate passed separate orders on the applications of the investigating officer that there was no need of recording their statements u/s 164 Cr.P.C.
Crl.A. 57/1994 Page 5 of 31
5. After the completion of investigation charge-sheet was filed in the Court of the concerned Metropolitan Magistrate. In due course the case stood committed to the Court of Sessions where a charge under Section 302/34 IPC was framed against the three accused persons, namely, Kashmira Singh, Kehar Singh and Bishan Singh.
6. To prove its case the prosecution had examined as many as 18 witnesses during the trial. The accused were also examined under Section 313 Cr.P.C. after the prosecution evidence was over. All the three accused pleaded false implication but no evidence was adduced in defence.
7. After examining the evidence by the prosecution, which was only circumstantial in nature, the learned trial Court in its judgment while convicting all the accused persons noticed certain lapses committed not only by the investigating agency but also the grave illegality, as noticed already, committed by the Metropolitan Magistrate Shri H.S.Sharma(PW-12) while dealing with the applications for recording the statements under Section 164 Cr.P.C. of PWs 3 and 9. The relevant observations and findings of the learned trial Judge are to be found in para nos. 25, 26, 29 and 35 of his judgment which is being re-produced below:
"25......................It is also not disputed that he died an unnatural death at the hands of someone, who had inflicted such injuries on his person, that resulted into death. It is also not disputed that the dead body of said Baljit was recovered from Bunga of PW7, who informed the police about the recovery of dead body. Crl.A. 57/1994 Page 6 of 31
26.......................However, it has already been discussed above that the case is of "last seen" evidence and undisputedly by both the sides, there is no article which might have been recovered from the possession of the accused which was sealed by the Investigating Officer, so as to show direct nexus of the accused persons with the commission of the crime.
xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx
29....................................... but in the present case, there is no eye- witness at all. As aforesaid the present case entirely rests upon the evidence of the deceased having been last seen in the company of the accused persons and therefore, as has been mentioned above neither the recovery of lathies from common place, nor non-sending of articles like lathi for chemical analysis, nor these articles being common in the village has got any importance...........They are that the deceased Baljit died due to multiple injuries on his body and his body was found at Bunga and that according to PW5, the deceased had been called by accused Kashmira and others to accompany them to the fields. The learned counsel for the accused persons although has vociferously contended that the prosecution has miserably failed in establishing the motive because PW5 has categorically denied about the existence of any motive with the accused persons particularly with respect to any dispute of land. In this regard it can be stated that where the prosecution relies purely upon the circumstances then the motive plays an important role. However, in the present case, the motive as alleged by the prosecution regarding the land dispute has been categorically denied by the PW5 and on this aspect, I find that the witness has truly deposed. He had not fallen prey to the prosecution net of the land dispute as the motive. What could be the motive, rather seems to have cropped up on account of the cross-examination of PW5 on behalf of the accused persons and in the presence of this cross-examination, the statement of PW5 that his son was called by accused persons to come to the fields, achieve greater significance. No doubt that PW5 has introduced in his statement the fact that his son was called to the fields, so that he may not be arrested by the police, which is against statement Ex. PW4/A, his statement is to be scrutinized in view of what he has stated in the statement as a whole.
xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx
35. The circumstances of the case would show that the other evidence adduced by the prosecution in the shape of disclosure statement and the recovery is not clinching at all, whereas, the clinching evidence is that of PW-5, who had last seen the victim in the company of the accused persona till he died. It is not a case of separate pieces of circumstantial evidence relating to the movement of the accused or of the deceased. In the absence of any explanation on behalf of the accused as to where the deceased was left alive and safe after he left the house in their company, it would in-fallibly indict the accused persons and none else. Consequently, not only that the statement of PW5 is believable but also in view of the unchallenged facts about the liquor complicity, the statement becomes clinching." Crl.A. 57/1994 Page 7 of 31
8. From these extracts of the impugned judgment it becomes clear that the accused have been convicted only on the evidence of „last seen and failure of the accused to explain as to when they parted the company of the deceased and where and under what circumstances. Feeling aggrieved by the judgment of the trial Court convicting them for the murder of Baljit Singh the three accused persons filed a joint appeal. During the pendency of the appeal two accused-appellants, namely, appellant no.1 Kashmir Singh @ Kashmira and appellant no.2 Kehar Singh @ Kehri died and so the appeal qua them stood abated. Thus, now we are to decide the fate of accused-appellant Bishan Singh only.
9. On behalf the sole surviving accused-appellant arguments were advanced by Shri Anil Soni, amicus curiae, and for the State its Additional Public Prosecutor Shri M.N.Dudeja supported the trial Courts decision.
10. The prosecution had relied upon certain circumstances during the course of its evidence before the trial Court to establish the guilt of the accused persons. First circumstance was that the accused persons had the motive to kill the deceased since there was some land dispute between the accused and the father of the deceased. The deceased was also stealing the illicit liquor manufactured by the accused persons. It is the common case of the prosecution and the accused that the deceased as well as the accused persons were Crl.A. 57/1994 Page 8 of 31 bootleggers. The deceased as well as accused Bishan Singh were registered with the police as BCs (bad characters) and arrest warrants had been issued against the deceased by some Court in Rajasthan. Second circumstance was that the accused had taken the deceased with them from his house in the evening of 23rd January, 1986. Third circumstance was that the accused and the deceased were seen at about 7.45 p.m. going towards Yamuna river by PW-3 Harpal Singh and then at about 8 p.m. also the deceased was seen alive in the company of the accused persons by PW-9 at the Yamuna bela. The fourth circumstance relied upon by the prosecution was that in the morning of 24th January,1986 the deceased was found lying dead in a bunga belonging to PW-7 Sunder Singh of village Jhingola. Fifth circumstance pressed into service by the prosecution was that the death of the deceased on post-mortem-examination found to be homicidal. Last circumstance was that accused Bishan Singh and Kehar Singh had got recovered one lathi each which the prosecution considered to be weapons of offence.
11. The trial Court after examining the evidence adduced by the prosecution has found that the first circumstance of motive and the third circumstance of the deceased having been seen in the company of the accused persons at between 7.45 p.m. and 8 p.m. on 23rd January, 1986 were not established. Evidence of the recoveries of lathis was also rejected as being of no use for the prosecution. So, the Crl.A. 57/1994 Page 9 of 31 learned amicus curiae did not have to say anything regarding these two circumstances which the trial Court itself had ignored from consideration while finding the accused guilty.
12. Nothing was argued by the learned amicus curiae for the appellant even on the point of recovery of the dead body of the deceased in the morning on 24th January, 1986. About that recovery there is in any case reliable evidence of PW-5 Sunder Singh, the father of the deceased, PW-7 whose name is also Sunder Singh, who had informed the police about the dead body of the deceased having been found by his son in his (PW-7s) bunga in his field which appears to be on the outskirts of village Jhangola near Yamuna river, PW-8 Harbans Singh, brother of the deceased, who had also reached the bunga on getting the information about the recovery of the corpse of his brother and the police witnesses, PWs 10, 13, 17 and 18. The learned amicus curiae also did not dispute the fact that the deceased died a homicidal death. That fact is also even otherwise duly established from the evidence of the autopsy surgeon. His observations regarding the injuries noticed by him on the dead body of the deceased and the cause of death have already been noticed by us. As per the opinion of the autopsy surgeon the death of the deceased had taken place 36 hours before the post-mortem. So the death occurred around mid-night of 23rd January, 1986. So, the Crl.A. 57/1994 Page 10 of 31 findings of the trial Court in respect of circumstances no. 5 and 6 are re-affirmed by us.
13. Mr. Soni, however, submitted that the only piece of evidence relied upon by the trial Court for convicting the three accused is the evidence of the accused persons and the deceased having been taken from his house by the accused persons in the evening of 23rd January, 1986 but that circumstance by itself was not sufficient to record conviction. Mr. Dudeja, on the other hand argued that the trial Court has wrongly held that the circumstance of motive has not been established when in fact it has been duly established from the evidence of PWs 3 and 5 whose evidence on the motive aspect of the prosecution case has been wrongly rejected. Mr. Dudeja also submitted that this Court, being the appellate Court, can make a fresh and independent analysis of the evidence and arrive at a different conclusion on the circumstance of motive as well as the deceased having been seen alive in the company of the accused persons at about 7.45 p.m. also on 23rd January, as was also deposed by PW-3 but not believed by the trial Judge.
14. So, now we proceed to examine the evidence relating to the circumstance of „last-seen which has been found by the trial Court to have been duly established and by itself sufficient to hold the accused persons guilty and the grounds for rejecting that evidence put forth by the amicus curiae and evidence on other circumstances relied upon Crl.A. 57/1994 Page 11 of 31 by the learned APP Mr. Dudeja. PW-5, Sunder Singh is the father of the deceased and the complainant of the case also on whose statement FIR was registered. He is the star prosecution witness and the learned trial Judge has convicted all the three accused persons relying on the evidence of this witness only. The relevant part of his examination-in-chief is being re-produced below verbatim: "Baljit deceased was my son. He was also known by the name of Meeta and Jeeta. At the time of incident he was aged about 18-19 years. I know all the three accused present in Court. They are also the residents of the same village. About 1 ½ years back, at about 6 P.M. I was at my house. Deceased was also there. All the three accused present in court (correctly identified) came to my house. Kashmira accused told my said son that should accompany them to the fields so that police persons may not arrest him. My son had left along with the accused persons at about 6 PM. He had not come back on that night. Kulwant son of Sunder Singh told me on the next day at 7/8 AM that my above son was lying dead in his bonga (place for storing toora). Sunder Singh father of Kulwant had thereafter gone to PS to report the matter. I had gone to the spot and found dead body of my son lying there. 100-150 villagers also had accompanied me to the spot. Deceased was having injuries on his head, arm, waist, etc. and blood was also there. 5 sticks arhar were lying at a short distance near the dead body which were blood stained. Clothes and dabbi of tambakoo were also lying near the dead body. Police had also come at the spot and my statement was recorded by them. Ex.PW4/A is the same statement which is thumb marked and initialed by me, at point A. Deceased used to deal in business of moolis. Mark A is photograph of deceased. I simply know how to sign, otherwise I am illiterate. Prior to the incident relations in between deceased and accused persons were cordial. Dead body was taken to police station by police. Police also visited bank of Jamuna, where at two places blood was found. There was distance of about 10 paces in between both the places where blood was found lying. Police had lifted blood and controlled earth from both the said places. These were kept in separate bottles and thereafter sealed. 20-25 villagers were also present when the police had lifted the blood and earth from the aforesaid places and sealed them. Clothes and the dibbi were also taken into possession by police from the place where dead body was lying. Those clothes belonged to the deceased. The said articles were kept in separate parcels and thereafter sealed at the spot. Blood and the earth were also lifted from the spot by the police, which were also sealed. Memo Ex.PW4/B was prepared by the police at the spot. It is thumb marked and initialed by me. Along with me, my both the sons, Harbans, Jehangir, Jit Singh had gone to police station. I saw dead body of deceased. Police again made inquiries from me there. Postmortem was conducted on 24th and dead body Crl.A. 57/1994 Page 12 of 31 was delivered to me on 25th. One cycle and two lathis were also recovered from moonga by police in the evening on the following day of incident. Sticks and cycle were lying at a distance of 4-5 yards concealed in the crops. So many persons were then with police."
15. Statement of PW-5 in his examination-in-chief to the effect that his son Baljeet Singh had gone from his house with the accused persons in the evening before the day of the recovery of his dead body had remained totally unchallenged in cross-examination on behalf of the accused persons and so has been relied upon by the learned trial Judge. In one case decided by the Supreme Court "State of U.P. vs. Satish" reported as AIR 2005 SC 1000 the witness on the point of last- seen was not cross-examined by the defence counsel but still the Courts below ignored his evidence while acquitting the accused. The Supreme Court, however, after noticing the absence of cross- examination of the witness of last-seen circumstance on the point of the deceased having been seen by him with the accused before the recovery of the dead body of the deceased accepted the unchallenged evidence of that witness. No doubt that PW-5 did not specifically state that his son had gone from the house alongwith the three accused persons on 23rd January, 1986 but it is more than clear that he meant to convey that only and that is evident from his statement that it was in the evening of the day before the recovery of the dead body of his son. There is ample evidence adduced by the prosecution to show that the dead body of the deceased was recovered on the morning of 24th January, 1986. Even the accused persons had clearly understood that Crl.A. 57/1994 Page 13 of 31 it was on 23rd January only that the deceased had, according to PW-5, left his house in the company of the three accused persons and that is evident from their memorandum of appeal. Since this part of the testimony of this witness had remained unchallenged in cross- examination the learned amicus curiae Mr.Anil Soni rightly did not make any serious argument on this aspect of the prosecution case. His main argument put forth with vehemence was that the trial Court had seriously erred in convicting the accused solely on the basis of the circumstance of the deceased having left his house alongwith the three accused persons in the evening of 23rd January, 1986. Reliance was placed upon one judgment of the Supreme Court reported in (2008) 3 Supreme Court Cases 100 "K.T. Palanisamy v. State of Tamil Nadu". That, however, is a different matter whether the accused could be convicted or not on the basis of evidence of „last-seen alone. Thus, we have also no hesitation in accepting the evidence of PW-5 that the deceased had left his house alongwith the three accused persons in the evening of 23rd January, 1986.
16. However, the statement of PW-5 that the accused had taken the deceased from his house by telling him that the police might not arrest him cannot be accepted since that was not claimed by him before the police where he had claimed that there some enmity with the accused due to some land dispute. That stand he gave up during evidence. It has come in the cross-examination of this witness that Crl.A. 57/1994 Page 14 of 31 the deceased was a bootlegger and was involved in some cases under the Excise Act besides other offences. The witness also admitted that arrest warrants had also been issued against the deceased by some Court in Rajasthan. It was suggested to the witness that the deceased and the accused were doing the business of illicit liquor together which the witness admitted to be correct. It was suggested to the investigating officer (PW-18) in cross-examination that the deceased was registered as BC (bad character) at the police station Ali Pur. PW- 18 had then also stated that the accused were arrested several times and accused Bishan Singh was also a BC. In these circumstances when the accused and the deceased were partners in the business of illicit liquor the statement of PW-5 that the accused had told the deceased to come with them so that police might not arrest him appears to have been introduced by the prosecution in its case through the evidence of PW-5 to make it look like a case of „taking away (abduction) of the deceased by the accused persons by playing deceit so as to shift the burden upon the shoulders of the accused to explain how the deceased died within a few hours after they took him from his house. We are, however, of the view that the prosecution case that the accused was taken away from his house by the accused on the said pretext, which has been accepted by the trial Court, cannot be accepted. So, we affirm the findings of the trial Court in respect of the first circumstance only to the extent that in the evening on 23rd January,1986 the deceased was taken from his house by the accused.
Crl.A. 57/1994 Page 15 of 31
17. The prosecution had examined PW-3 Harpal Singh to establish that the deceased was seen alive in the company of the accused persons at about 7.45 p.m. on 23rd January,1986 and at that time the accused were saying to him that he was stealing their illicit liquor and so they would settle the score with him that day, which was another motive pressed into service by the prosecution. PW-3 was residing in a jhuggi on the bank of Yamuna river near Jhangola village. This witness did not support the prosecution case in examination-in- chief. He even denied that he knew the deceased and the accused persons. So, he had to be cross-examined by the public prosecutor with reference to his police statement. In that cross-examination he admitted that on 23rd January, 1986 at about 7.45 p.m. when he was going from his jhuggi to Jhangola village he had seen the accused persons and the deceased coming from the side of village Jhangola and going towards Yamuna and at that time accused Bishan Singh had told the deceased that he was stealing their liquor and lehan concealed in the sand. When cross-examined by the defence counsel this witness accepted that he knew the deceased and also stated that he was going to village Jhangola to purchase house-hold items from the shop of PW-7. The trial Court, however, did not consider his statement made during the cross-examination by the public prosecutor to be reliable and so ignored the same. According to the trial Court, this witness was changing his version from stage to stage. Crl.A. 57/1994 Page 16 of 31 There is no doubt, as was the submission of the learned APP Mr. Dudeja, that just because a prosecution witness is cross-examined by the prosecutor with the leave of the Court his entire evidence for that reason alone does not get washed off the record. Evidence of such a witness, if it finds corroboration from other evidence, can also be relied upon. However, there is no corroboration to the statement of PW-3 in the present case to the effect that the accused and the deceased were together at about 7.45 p.m. on 23rd January, 1986.
18. The prosecution had sought to establish the circumstance of last-seen from the evidence of PW-9 Gholu also. As noticed already, he had during the investigation claimed to have seen the accused persons catching hold of the deceased on the night of 23rd January, 1986 at about 8 p.m. but this witness also did not support the prosecution case and was cross-examined by the public prosecutor. Even during that cross-examination this witness did not support the prosecution case on any aspect and, therefore, as far as this witness is concerned, the prosecution does not get any benefit at all.
19. Now, we come to the evidence adduced by the prosecution on the motive aspect of its case. As noticed already, in the report to the police PW-5 Sunder Singh, father of the deceased, had claimed that there was enmity between his family and the accused persons over some land dispute. This witness, however, did not claim so during his Crl.A. 57/1994 Page 17 of 31 evidence and so was cross-examined by the Additional Public Prosecutor since on the circumstance of motive he had not supported the prosecution and contrary to what he had claimed before the police he claimed in evidence that relations between his son and the accused were cordial. However, even during that cross-examination PW-5 did not admit that he had any kind of enmity with the accused persons. His categorical statement was that there was no enmity with the accused persons. The other motive, as spoken to by PW-3, that the deceased, according to the accused persons, was stealing the illicit liquor manufactured by the accused persons and kept concealed under the sand, also cannot be said to have been established beyond reasonable doubt, since we are not inclined to accept the testimony of PW-3 on this aspect made during his cross-examination by the public prosecutor without corroboration and there is no corroboration to that part of his statement also. As far as PW-9 Gholu is concerned he had totally turned hostile and no part of his testimony can be utilized by the prosecution. So, on the motive aspect of the prosecution case, evidence of PWs 3 and 9 has been rightly excluded from consideration by the learned trial Court.
20. We have already observed that during the investigation statements of PWs 3 and 9 were to be recorded under Section 164 Cr.P.C. but the Magistrate (PW-12 Shri H.S. Sharma) had dispensed with the recording of their statements. It was in the context of the Crl.A. 57/1994 Page 18 of 31 statements of PWs 3 and 9 that the trial judge had noticed the blunder committed by the Magistrate. Before we notice what the trial Judge observed about the blunder committed by the Magistrate his testimony also needs to be noticed which itself would also show the mistake committed by him. This is what PW-12 Shri H.S. Sharma deposed:
"On 18-2-86 while I was working as Metropolitan Magistrate, Delhi, an application was put up before me by HC Om Parkash, which application is Ex. PW-12/A, for getting the statement of Gholu PW recorded u/s 164 Cr.P.C. Gholu PW was also produced before me for the said purpose. Vide endorsement Ex. PW-12/B I read over statement of this witness recorded by police u/s 161 Cr.P.C. to him. This statement is Ex.PW-9/A. I did not record his statement u/s 164 Cr.P.C. I signed statement of Gholu u/s 161 Cr.P.C. Ex. PW-9/A at point A. Gholu had admitted his having made Ex. PW-9/A to police and it to be correct and he did not want anything else to say that is why I dispensed with his statement u/s 164 Cr.P.C.
On 25.2.86 application Ex. PW-12/C was moved before me by Constable Virender Singh for recording statement of Harpal Singh PW u/s 164 Cr.P.C. As IO was not present I directed that file be put up before me on 26.2.86 and IO to appear on the said date. On 26.2.86 Harpal s/o Ram Sarup PW was present. ASI Sita Ram IO was also present. IO was directed to stay outside court room. I had read over statement of Harpal PW recorded u/s 161 Cr.P.C. to him and he admitted having made the said entire statement correctly. His statement is Ex. PW-3/A. I signed the same at point A. My endorsement to that effect on the application Ex. PW12/C is Ex. PW- 12/D. Since witness had admitted his entire statement u/s 161 Cr.P.C. I did not record his statement u/s 164 Cr. P.C."
21. The observations of the trial Judge in respect of the illegality committed by the Magistrate are to be found in para no. 36 of the impugned judgment and the same are being re-produced below: "36. As has been mentioned above the prosecution also made a futile and weak attempt to procure some kind of corroboration from the statement of PW3 Harpal and PW9 Gholu who were also got examined u/s 164 Cr.P.C. However, I am constrained to express my anguish over the bizarre manner in which the learned Magistrate Sh. H.S. Sharma, as he was functioning at the relevant time, has recorded the statement u/s 164 Cr.P.C. It has already been noticed that both the witnesses were read over their respective statements as recorded by police u/s 161 Cr.P.C. and while deposing before this Crl.A. 57/1994 Page 19 of 31 court the officer has testified that he so read over the statement and when the two witnesses admitted having made those statements, he made his endorsement. While acting as such, Sh. H.S. Sharma, has completely ignored the established norms and enacted procedure u/s 164 of the Code of Criminal Procedure........................................... ...............the learned Magistrate seems to have devised a novel way of recording the statement u/s 164 Cr.P.C. vide which the establish procedure has been laid to rest in the graveyard. Therefore, the statement Ex. PW9/A as well as Ex. PW3/A of Gholu and Harpal recorded u/s 164 Cr.P.C. is absolutely a rotten piece of evidence which has no value in the eyes of law. It is really astonishing as to what made the officer to record the statement in that fashion which is absolutely alien to codified law. It can only be best hoped that such kind of thing do not recur."
22. We are of the view that if the statements of PWs 3 and 9 had been recorded by PW-12 Shri H.S.Sharma and proved during the evidence the same could have been used for corroborating the testimony of PW-3 at least who had supported the prosecution when cross-examined by the prosecutor. So, by a grave mistake committed by the Magistrate, PW-12, Shri H.S. Sharma in not recording the statements of two very material witnesses for the reason that the witnesses had stated before him that except for whatever they had said in their statements under Section 161 Cr.P.C. which were read over to them by the Magistrate they had nothing more to say, the prosecution has been deprived of the benefit of corroborative evidence in respect of PW-3. Normally, certain faults of the investigating agency make the prosecution case weak but here the Magistrates fault to some extent has weakened the prosecution case.
23. We are in agreement with the conclusion of the trial Court rejecting the evidence of recoveries of lathis which was not even Crl.A. 57/1994 Page 20 of 31 impugned by the learned APP. Now, the question to be considered is whether the learned trial Court was justified in convicting the accused only on the evidence of PW-5 that the deceased had left his house in the company of the three accused persons in the evening of 23rd January, 1986 and the failure of the accused persons to explain as to when and where they had left the company of the deceased.
24. As regards the circumstance of „last-seen the Hon'ble Supreme Court in the case of "State of Goa v. Sanjay Thakran and Anr.", (2007) 3 SCC 755 has held:
"26. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons..........
27.......................We have also not found any other link in the chain of circumstances to conclusively establish that A-1 murdered D-1 or A- 2 played any role in assisting him to murder D-1. Even if we believe the evidence of P.W.-11 that he saw D-1 in the company of A-1 walking towards the beach and thereafter saw A-1 returning alone after 30 to 45 minutes, there has been a time gap of about 2 1/4 Crl.A. 57/1994 Page 21 of 31 hours when A-1 and D-1 were last seen together and when the dead body of D-1 was found at around 00.30 a.m. at the Benaulim Beach. No evidence was led by the prosecution to prove the fact that there was no possibility of any other person approaching D-1 on the beach which is a public place, during the intervening period when A-1 was last seen with the deceased and when the crime was detected." (emphasis supplied)
25. Similarly, in the case of "State of U.P. v. Satish", 2005 Crl.L.J. 428 also the Hon'ble Supreme Court has explained the principle of "last seen" evidence as under:
"16. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.
17. Applying the above principle to the present case, it is obvious that the prosecution has not produced an iota of evidence to prove that the deceased was last seen with the appellants in U.P. There is gap in both the place and time of the last seen. Therefore, the possibility of someone else stepping In between the time of last seen and the time of discovery of the body, between the place of last seen and place of discovery of the body, cannot be ruled out....................." (Emphasis supplied)
26. Their lordships of the Supreme Court in "Mohibur Rahman and another v. State of Assam", (2002) 6 Supreme Court Cases 715, also have laid down the parameters, as to under what circumstances, on the basis of 'last seen' evidence, an accused can be convicted. After analyzing evidence, in that case, it was observed thus:-
"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. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be Crl.A. 57/1994 Page 22 of 31 persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide."
27. In the present case the deceased left his house in the evening of 23rd January, 1986 at about 6 p.m. along with the accused persons, as deposed by the father of the deceased and which statement of his has been accepted by the trial Court as also by us to be reliable, and his dead body was found next morning at about 8 a.m., as stated by PW-7 in cross-examination. As per the opinion of the autopsy surgeon the death of the deceased had occurred around midnight on 23rd January, 1986. The time gap between the „last- seen point and the death of the deceased thus was about six hours. The prosecution has not ruled out the possibility of somebody else meeting the deceased after he had left his house during that period of six hours. The deceased was admittedly a bootlegger and was wanted in some criminal case also in Rajasthan. These kind of people in the business of illicit liquor can have some enemies also who may have some grudge against them including business rivalry and so want to get rid of them. The father of the deceased in his cross-examination on behalf of the accused had also stated that sometimes his son used to stay away from his home because of arrest warrants issued against him. So, there was nothing unusual for the deceased having not come back home on the fateful night. As far as the accused persons in the present case are concerned, as noticed already, the father of the Crl.A. 57/1994 Page 23 of 31 deceased has categorically claimed that their relations with the accused were quite cordial and the learned trial Judge has rightly observed that if there was any kind of enmity between the accused and the deceased he would not have gone with the accused on their asking. In case of direct evidence the failure to prove motive of the crime is not fatal to the prosecution. But, in a case based on circumstantial evidence, since motive forms one of the strongest links in the chain of circumstances against the accused, its absence will certainly weaken if not destroy the case of the prosecution. The prosecution has also not been able to show any proximity between the place of residence of the deceased and the place of recovery of his dead body. It is significant to note that the dead body of the deceased was recovered from a place which, as per the prosecution case itself, belonged to PW-7, Sunder Singh and none of the accused had anything to do with that place. Thus the absence of proximity of time between the deceased having left his house in the company of the accused and the recovery of his dead body as well as the absence of proximity between the place of residence of the deceased and the place of the recovery of his dead body point towards the innocence of the accused.
28. In any event, the Supreme Court has by now held in a number of judgments that the „last-seen evidence is by itself not sufficient to convict an accused. From the judgments of the Supreme Court already noticed by us it is clear that whenever prosecution relies upon Crl.A. 57/1994 Page 24 of 31 circumstantial evidence including the circumstance of „last-seen, that circumstance has been considered as one of the circumstances in the chain of circumstances. We now refer to some of the judgements of the Supreme Court where in the chain of circumstances the only circumstance of „last-seen was found to have been established by the prosecution but that circumstance was not held to be sufficient by itself to base conviction. Way back in the year 1991, in the case of "Indrajeet Singh vs. State of Punjab", AIR 1991 SC 1674, the Supreme Court dealing with some circumstances relied upon by the prosecution including the circumstance of „last-seen held as under: "The prosecution examined P.Ws. 1 to 6. The circumstances relied upon by the prosecution and by both the Courts below are as follows:
(1) The appellants had taken away the deceased from his house and thereafter he was never seen alive. (2) The dead body of the deceased was found on the bank of canal and which was identified as that of the deceased. (3) The denial of the appellants that they had never taken away the deceased for bird-shooting. (4) The suggestion that why not the appellants could be falsely implicated in the case.
2. After giving our careful consideration, we are unable to agree with the Courts below. These circumstances are not sufficient to establish guilt of the accused. It is well settled that in a case pending on circumstantial evidence, the prosecution must establish all the circumstances by independent evidence and the circumstances so established must form a complete chain in proof of guilt of the accused beyond all reasonable doubts. The circumstances so proved must also be consistent only with the guilt of the accused. Among the circumstances relied upon by the prosecution, in the light of these principles we find that except the circumstance No. 1, the other circumstances are not incriminating. In number of cases it has been held that the only circumstance namely that the deceased was last seen in the company of the accused by itself is not sufficient to establish the guilt of the accused. It is no doubt true that the deceased's death was homicidal but since there is no direct witness connecting any of the appellants with the crime we should fall back on the circumstantial Crl.A. 57/1994 Page 25 of 31 evidence and we are of the view that circumstances relied upon by the prosecution are hardly sufficient to establish the guilt of the accused. The circumstance, i.e. the absence of enmity between the accused and the deceased and the witness would also show that the accused also had no enmity against the deceased. Therefore, this circumstance is neutral. However, now coming to the recovery of the gun, the High Court has acquitted him of that charge. The only relevant circumstance as pointed above is that the appellants and the deceased left the house together in a friendly manner for bird- shooting. It is needless to say that no conviction can be passed on this sole circumstance." (emphasis laid)
29. In " Anant Bhujangrao Kulkarni vs State of Maharashtra ", AIR 1993 SC 110 the Supreme Court observed as under:
"12. The only circumstances that have been found established are that the deceased was last seen alive in the company of the appellant on October 13, 1975 at about 6 p.m. and that the dead body of the deceased was found in the Ladni near the residential portion of the appellant in Pargaonkar's wada. The said two circumstances, in our opinion, cannot be said to be inconsistent with the innocence of the appellant and on the basis of these two circumstances alone, it cannot be held that the appellant was a party to the murder of the deceased. The conviction of the appellant for the offence under Section 302 read with Section 34 IPC cannot, therefore, be upheld." (emphasis supplied)
Thus, even though the dead body of the deceased in this case was found from a place near the house of the accused with whom the deceased was last seen alive the Supreme Court did not consider that circumstance to be sufficient to convict the accused for murder. Here in the present case, the dead body of the deceased was found from a place which did not belong to anyone of the accused but belonged to PW-7 Sunder Singh and even the distance between the house oif the deceased and that place has not been proved to show any proximity between the two places.
Crl.A. 57/1994 Page 26 of 31
30. In the case of "Arjun Marik and Ors. v. State of Bihar", 1994 Supp. (2) SCC 372, the Hon'ble Supreme Court had held as under: "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."
31. In "Ashok Yadav And Ors. vs State of M.P." 1996 IX AD SC 446, the Supreme Court even after affirming the conviction of the accused for the offence of kidnapping acquitted the accused of the offence of murder holding that evidence of „last-seen was not sufficient to convict the accused of the offence of murder also. This is how the facts were noticed and the conclusions arrived at:
"10. Ram Bharose Vajpayee, PW-1, deposed that he saw the appellants alongwith the deceased on cycle near Katora Tal. Rati Ram, PW. 7, also deposed to having seen the deceased with the appellants near Katora Tal. Both the courts have relied upon the statements of P.W. 1 and P.W. 7 in that behalf after giving cogent reasons. So far as PW 5 is concerned, he did not depose that he had seen the deceased with the appellant but, according to him he had seen the appellants outside the Chhatri on the fateful day. The evidence of PW 1, PW 5 and PW 7 has been rightly relied upon by the courts below but the same can only go to show that the appellants had kidnapped the deceased on the fateful day and nothing more than that. The evidence of these witnesses even if accepted in their totality does not go to connect the appellants with the crime of murder. Indeed Avdhesh Kumar's death was homicidal in nature but unless the prosecution can establish beyond a reasonable doubt that the appellants and the appellants alone had committed the murder, their conviction for an offence under Section 302 IPC cannot be sustained. The evidence led by the prosecution about "last seen together" cannot be said to be consistent only with the hypothesis of the guilt of the appellants as regards the offence of murder and incapable of being explained on any other hypothesis. In our opinion the evidence led by the prosecution is of a conclusive nature so-far as kidnapping of the deceased is concerned but is inconclusive so far as the offence of murder is concerned. The chain of evidence is not so complete as to leave no doubt about the conclusion that the appellants also committed the murder of Avadhesh. May be, they did but that is not enough. The prosecution is obliged to establish that in all human probability the accused alone had committed the murder. This, the prosecution has failed to Crl.A. 57/1994 Page 27 of 31 prove in this case. The conviction of the appellants for the offence under Section 302 IPC, therefore, cannot be sustained and is hereby set aside.............................................." (emphasis supplied)
32. In "Shera Singh vs State of Punjab", 1996(10) SCC 330 it was observed by the Apex Court as under:
"............In the instant case, the only evidence other than the deposition of the said approver, is the deposition of PW.16, the brother of the deceased who only stated that the deceased was seen by the said brother near the canal bridge of village Midha at about 9.00 P.M. on 28th July, 1982 and he had gone to the western side alongwith the appellant Shera Singh. As the names of other two accused were not mentioned by PW. 16, the High Court gave them the benefit of doubt and acquitted them but since the name of the appellant was mentioned by PW 16 as the person with whom the deceased was last seen together, the conviction against the appellant has been upheld by the High Court........................................
2. In our view, such finding of the High Court is not justified. Simply on the basis of evidence of PW 16 that the deceased was last seen in the company of the appellant, the appellant is not liable to be convicted for the offence of murder..................................................."
33. Then in the case of "Jaswant Gir v. State of Punjab" reported in (2005) 12 SCC 438 the Supreme Court has dealt with the „last-seen evidence as under:
"................the main incriminating fact relied upon is that the deceased was last seen by PW14 in the company of the appellant and the other accused and that he was given a lift in the vehicle belonging to the appellant. In order to establish that the vehicle belonged to or was in de facto possession of the appellant, some evidence has been let in. The "last seen" evidence is sought to be established by the testimony of PW14................................ Without probing further into the correctness of the "last seen" version emanating from PW14's evidence, even assuming that the deceased did accompany the accused in their vehicle, this circumstance by itself does not lead to the irresistible conclusion that the appellant and his companion had killed him and thrown the dead body in the culvert. It cannot fact presumed that the appellant and his companions were responsible for the murder, though grave suspicion arises against the accused. There is considerable time gap between the deceased boarding the vehicle of the appellant and the time when PW11 found the dead body. In the absence of any other links Crl.A. 57/1994 Page 28 of 31 in the chain of circumstantial evidence it is not possible to convict the appellant solely on the basis of the "last seen" evidence, even if the version of PW14 in this regard is believed......................................." (emphasis supplied)
34. Thus, based on the solitary circumstance of the deceased having left his house in the company of the accused persons in the evening of 23rd January, 2006 no chain of circumstances can be said to have been established by the prosecution from which the only conclusion could be arrived at was that the murder of the deceased was committed by the accused. In these circumstances, failure of the accused to offer any explanation could not be used as a circumstance against the accused, as has been done by the learned trial Judge. Unless a chain of circumstances is established from which the prosecution can be said to have discharged its burden of proof of proving the guilt of the accused, which always rests on it, the absence of explanation by an accused cannot be used as a circumstance against the accused. Section 106 of the Evidence Act cannot be utilised to cast the burden on the accused to prove his innocence by relieving the prosecution of its burden of proof. The prosecution has to stand on its own legs. Section 106 is intended to meet certain exceptional cases in which it would be impossible or extremely difficult for the prosecution to prove the fact which is especially within the knowledge of the accused and the knowledge of that fact is not available to the prosecution. But before the burden is shifted to the accused, the prosecution has to establish strong prima facie case. Crl.A. 57/1994 Page 29 of 31 Thereafter, if the accused fails to account for or if gives some false explanation, the failure to account for or the false explanation given by the accused shall be considered by the court for its final verdict. The Supreme Court has also observed in "Sawat Das vs State of Bihar", AIR 1974 SC 778 that Section 106 of the Evidence Act does not absolve the prosecution from the duty of discharging its primary burden of proving its case beyond reasonable doubt and it is only when the prosecution has led evidence which if believed will lead to conviction, or, which makes out prima facie case that the question arises of considering fact of which the burden of proof may be upon the accused. In "Vikramjit Singh vs State of Punjab", 2006(12) SCALE 321 also the Supreme Court has held that only when the prosecution has proved its case that the burden in regard to such fact which was within the special knowledge of the accused may be shifted to the accused for explaining the same. So, the crucial question in the case before us is whether the prosecution has discharged its initial and primary burden of proving the guilt of the appellant-accused beyond doubt. In our view, the prosecution has not been able mto discharge that burden by establishing only one circumstance that the deceased had left his house on 23rd January,1986 at about 6 p.m. in the company of the three accused persons.
35. In the result, the appeal in respect of the sole surviving appellant Bishan Singh succeeds and his conviction under Section Crl.A. 57/1994 Page 30 of 31 302/34 IPC recorded by the trial Court vide judgment dated 12th January, 1994 and the sentence of life imprisonment and fine imposed upon him vide separate order of the same date are set aside. He stands acquitted. His sentence of imprisonment was suspended during the pendency of the appeal and now that he has been acquitted his bail bonds stand discharged.
P.K. Bhasin, J
January 22, 2010. Badar Durrez Ahmed, J Crl.A. 57/1994 Page 31 of 31