Allahabad High Court
Satya Pal Singh And 2 Others vs State Of U.P. on 12 June, 2020
Equivalent citations: AIRONLINE 2020 ALL 1441
Bench: Pritinker Diwaker, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 14.01.2020
Delivered on 12.06.2020
CRIMINAL APPEAL NO. 2349 OF 2017
1. Satya Pal Singh
2. Smt. Munesha Devi
3. Pankaj ----- Appellants
Vs.
State of U.P. ----- Respondent
And
CRIMINAL APPEAL NO. 2547 OF 2017
Kaptan Singh ----- Appellant
Vs.
State of U.P. ----- Respondent
And
CRIMINAL APPEAL NO. 3237 OF 2017
Chhota @ Pushpendra ----- Appellant
Vs.
State of U.P. ----- Respondent
____________________________________________________________
For Appellants : Sri Ram Babu Sharma, Sri Ardhendu Shekhar Sharma
For Respondent/State : AGA Sri J.K. Upadhyay ___________________________________________________________
And
CRIMINAL APPEAL NO. 2433 OF 2017
Vinod ----- Appellant
Vs.
State of U.P. ----- Respondent
_______________________________________________________
For Appellant : Sri Santosh Kumar Tiwari
For Respondent/State : AGA Sri J.K. Upadhyay ______________________________________________________
Hon'ble Pritinker Diwaker, J.
Hon'ble Dinesh Pathak, J.
Per : Pritinker Diwaker, J.
(12.06.2020)
1. As all these four appeals arise out of a common judgement and order dated 27.04.2017 passed by Additional District & Sessions Judge, Court No. 13, Aligarh in Sessions Trial No. 575 of 2012 (State vs. Kaptan Singh & Ors.), convicting the accused-appellants under Sections 498A, 302/149, 201, 120B of IPC, P.S. Khair, District Aligarh and sentencing accused-appellants Satya Pal Singh, Smt. Munesha Devi and Pankaj under Section 302/149 of I.P.C. to undergo imprisonment for life and a fine of Rs. 25,000/- each, in default thereof, to further undergo one year rigorous imprisonment, further sentencing all the accused-appellants to undergo five years rigorous imprisonment under Section 201 and a fine of Rs. 10,000/- each, in default thereof, to further undergo three months additional rigorous imprisonment; to undergo imprisonment for life under Section 120B and a fine of Rs. 15,000/- each, in default thereof, to further undergo one year rigorous imprisonment and to undergo three years simple imprisonment under Section 498A and a fine of Rs. 10,000/- each, in default thereof, to further undergo one month's additional simple imprisonment, they are being disposed of by this common order.
2. In the present case, the name of deceased is Smt. Anita, wife of accused Kaptan Singh. Their marriage was solemnized about 6-7 years prior to the date of incident i.e. 02.02.2012. It is alleged that deceased was subjected to cruelty for demand of Rs. 2 lakhs for expansion of business of her husband. However, the same could not be paid to the husband on account of poor financial condition of the father and brother of the deceased. It is said that a month prior to the date of incident, a Panchayat meeting was called at village Nandpur Pala, which was attended by the accused persons including villagers and in the said meeting, complainant Nagendra Singh (PW-1), brother of the deceased and his family members were threatened for either giving Rs.2 lakhs or to face dire consequences. Further case of the prosecution is that on 02.02.2012, there was a marriage in the relation of the complainant at Delhi, deceased left her house from village Nandpur Pala but she did not reach to Delhi. Near village Khair, at a place called Barka, dead body of the deceased was found near a canal. On the basis of written report lodged by Nagendra Singh (PW-1), brother of the deceased on 03.02.2012, FIR Ex. Ka.2 was registered at 01.30 p.m. against the accused persons, Kanti Devi and one Subhash under Sections 498A, 304B, 201 of IPC read with Section 3/4 of Dowry Prohibition Act.
3. Inquest on dead body was conducted vide Ex. Ka.11 on 03.02.2012 and the body was sent for postmortem, which was conducted on 04.02.2012 vide Ex. Ka.6 by PW-6 Dr. R. Bihari.
4. As per Autopsy Surgeon, following injuries have been found on the body of the deceased:
"(i) Contusion 4cm x 3cm over left forehead.
(ii) Abraded contusion 5cm x 4cm over right forehead.
(iii) Ligature mark 26cm x 1.5cm over front of both side of neck between chin and thyroid cartilage interrupted on back of neck area of 4cm ligature mark directed upward and backward on both brown hard. On dissection glistering white present underneath the ligature mark echymosis present in subcutaneous tissue."
The cause of death of the deceased was due to asphyxia as a result of antemortem hanging.
5. Though Subhash has been made accused in the FIR but after investigation, charge-sheet was not filed against him. It was filed against the appellants and one Kanti Devi, Jethani of the deceased. However, the said Kanti Devi expired during pendency of the trial.
6. While framing charge, the trial court has framed charge against the accused persons under Sections 498A, 302/149, 201, 120B of IPC.
7. So as to hold the accused appellants guilty, prosecution has examined eight witnesses. Statements of accused persons were also recorded under Section 313 Cr.P.C. in which, they pleaded their innocence and false implication.
8. By the impugned judgment, the trial Judge has convicted the accused appellants under Sections 498A, 302/149, 201, 120B of IPC and sentenced them as mentioned in paragraph no. 1 of this judgement. Hence these appeals.
9. Learned counsel for the appellants submits:
(i) that there is no eye-witness account to the incident and the appellants have been convicted solely on the basis of weak circumstantial evidence.
(ii) that the main piece of evidence against the accused persons is the evidence of last seen by Rajendra Pal Singh (PW-2) and Raju (PW-3). However, the said evidence is not conclusive in nature and merely based on the same, the appellants cannot be convicted specially when there is no other evidence against them.
(iii) that in Section 313 Cr.P.C. statement, accused Kaptan Singh, husband of the deceased, had taken specific defence that while the deceased was going to Delhi to attend the marriage in her relative's house, she appears to have been killed by someone. Learned counsel for the appellants have placed their strong reliance on the judgment of the Apex Court in Vikramjit Singh @ Vicky vs. State of Punjab (2006) AIR (SCW) 6197.
10. On the other hand, supporting the impugned judgment, it has been argued by the State counsel:
(i) that the conviction of the appellants is in accordance with law and there is no infirmity in the same. He submits that conviction can be based even solely on the basis of last seen evidence provided that the said evidence inspires the confidence of this Court and present is one of such case.
(ii) that there was strong motive for the appellants to commit the murder of the deceased as in the Panchayat meeting, the accused persons have openly threatened the family members of the deceased for dire consequences.
(iii) that once the deceased died homicidal death, burden lies on the appellants to explain as to how she died.
(iv) that when the appellants were supposed to go along with the deceased to Delhi, they are under the obligation to offer suitable explanation as to under what circumstances, the deceased died. Admitting for the sake of argument that the deceased might have been killed by third person and could not reach to Delhi, appellants were under the obligation to at least search the deceased as to where she had gone. He placed reliance on the judgment of the Apex Court in Satpal vs. State of Haryana; AIR 2018 SC 2142.
11. We have heard counsel for the parties and perused the record.
12. Nagendra Singh (PW-1), is the brother of deceased and the informant. He states that the marriage of deceased was solemnized with Kaptan Singh about 6-7 years prior to the incident and about Rs. 5 lacks were spent in the said marriage. The accused persons were not satisfied with the dowry given in the marriage and for expansion of their business, they were demanding Rs. 2 lacks from the deceased. He states that all the accused persons were residing at Nandpur Pala at Khair. About a month prior to the incident, he was called by the accused persons in their house and there also, the demand was repeated. He further states that at village Nandpur Pala, a Panchayat meeting was also called, which was attended by the accused persons including accused Vinod and Chota and in the said meeting also, demand was repeated and a threat for dire consequences was extended. He states that on 02.02.2012, marriage of his cousin was to take place at Delhi and deceased was also supposed to attend the same. On 02.02.2012, on phone, accused Kaptan Singh had informed him that he would also be attending the said marriage along with the deceased and two other accused persons namely Vinod and Chota and another relative Subhash. He states that when accused persons and the deceased did not reach to Delhi, he called one Rajendra Pal Singh, who informed him that all of them had gone to Delhi. On the next day, accused Satyapal Singh called him and enquired about the deceased and his other family members but as they did not reach to Delhi, he informed them accordingly. He further states that when he was going to village Khair, on the way near Barka, he met certain persons, who informed him that a dead body of a lady is lying near the canal and the said dead body was of the deceased. Naming all the accused persons as accused, he states that they have killed the deceased. He further states that he could not get the whereabouts of his niece Priyanshi aged 5 years for some time and then the police recovered the said child and handed over to him on 'Supurdhnama'. This witness was subjected to various unnecessary questions in the cross-examination. However, the contents of the said cross-examination are that the deceased was subjected to cruelty. He states that the Panchayat was also attended by him and he returned from the Panchayat by saying that whenever he would arrange Rs.2 lacks, the same would be given to the accused persons. There are some contradictions in the Court statement of this witness, from his diary statement and that of FIR lodged by him.
13. Rajendra Pal Singh (PW-2) was the mediator in the marriage of deceased and Kaptan Singh. He is a resident of village Nandpur Pala where some of the accused persons were also residing. He states that in the marriage about Rs. 5 lakhs were spent by the family members of the deceased. However, the accused Kaptan Singh and his brother-in-law Subhash were insisting for further Rs. 2 lakhs for which all the accused persons used to harass the deceased. He states that deceased was ousted from village Khair and then she was residing in her village Ballor. He further states that from Ballor, deceased called him and requested for settlement by saying that how long she would reside in her parents' house and accordingly a village Panchayat was called. However, the accused persons had insisted for Rs. 2 lakhs and somehow deceased started living at Nandpur Pala. On 02.02.2012, there was a marriage of cousin of the deceased at Delhi and on the same day, at about 03.00 p.m., accused appellant Kaptan Singh on his motorcycle took the deceased and his daughter to Delhi and before that the other accused persons namely Vinod, Chota and Kanti Devi had already left for Delhi. At about 08.00 p.m., he received a call from Nagendra Singh (PW-1) that the deceased and her husband have not reach Delhi and then they were searched and later an information was received about the dead body of one lady, which was later identified to be that of the deceased. He was suggested for falsely implicating the accused persons for various reasons but he has denied all those suggestions.
14. Raju (PW-3) has also been examined as witness of last seen. He states that on 02.02.2012 at about 4.30 p.m., when he and his brother Narendra were returning from the market of Khair, at Somna trijunction, he saw accused Vinod, Chota and Kanti Devi on a motorcycle, who had covered their faces and on the other bike he saw accused Kaptan Singh, his daughter and the deceased and that they were coming towards their house at Khair. He further states that on the second day, he came to know about the death of the deceased and the fact that her dead body was lying near a canal. He states that he had gone to see the accused persons in their house but their house was found to be locked.
15. Rakesh Kumar (PW-4) is a police constable who has proved the general diary and the FIR. Om Prakash (PW-5) is the Station House Officer of Khair, states that at the instance of the accused Kaptan Singh, from the field of one Prem Pal, one gunny bag and a rope of about one meter was seized vide Ex.Ka.5.
16. Dr. R. Bihari (PW-6) conducted postmortem on the body of the deceased. The cause of death of the deceased was asphyxia due to hanging. He states that the deceased died about one and a half day prior to the date of postmortem, which was conducted on 04.02.2012 at 00.15 a.m.
17. S.S. Rathi (PW-7) is the Investigating Officer of the case. Vikram Singh (PW-8) is a constable who assisted during investigation.
18. Close scrutiny of the evidence makes it clear that there is no eye-witness account to the incident and the entire case of the prosecution is based on circumstantial evidence. Law in respect of circumstantial evidence is very clear.
19. In Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra, (2008) 3 SCC 210, the Supreme Court, while dealing with circumstantial evidence, observed as under:
"11. In Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343], which is one of the earliest decisions on the subject, this court observed as under:
"10. ...... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
12. In Padala Veera Reddy v. State of AP [(1989) Supp (2) SCC 706], this court held that when a case rests upon circumstantial evidence, the following tests must be satisfied:
"(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."
13. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
Further in Satpal Vs. State of Haryana; (2018) 6 SCC 610, the Supreme Court has observed as under:
"6. We have considered the respective submissions and the evidence on record. There is no eye witness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly.
But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place.
If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine."
Recently, in Devi Lal vs. State of Rajasthan, Criminal Appeal No.148 of 2010, decided on 08.01.2019, the Supreme Court, while dealing with circumstantial evidence, observed as under:
14. The classic enunciation of law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable decision of the Court in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 (4) SCC 116. The relevant excerpts from para 153 of the decision is assuredly apposite:
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra [(1973) 2 SCC 793 where the observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
15. It has further been considered by this Court in Sujit Biswas Vs. State of Assam 2013 (12) SCC 406 and Raja alias Rajinder Vs. State of Haryana 2015 (11) SCC 43. It has been propounded that while scrutinising the circumstantial evidence, a Court has to evaluate it to ensure the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straight jacket formula which can be laid down for the purpose. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused."
Most recently, in Digamber Vaishnav Vs. State of Chhattisgarh; AIR 2019 SC 1367 decided on 05.03.2019, the Apex Court has held as under (with respect to circumstantial evidence):
"15. One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt.
16. This Court in Jaharlal Das v. State of Orissa, (1991) 3 SCC 27, has held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied:
i.) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
ii.) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and iii.) 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 it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused."
20. If the above principles of law is applied in the present case, what emerges is that the only piece of evidence against the appellants is the evidence of last seen by Rajendra Pal Singh (PW-2) and Raju (PW-3). If we analyze the evidence of these two witnesses, both of them have stated that they saw the accused persons coming toward their own village Khair and not towards the place Barka where the dead body of the deceased was found. Raju (PW-3) saw the accused Vinod, Chota and Kanti Devi on a motorcycle, these persons had covered their faces, and on the other vehicle, he saw Kaptan Singh, the deceased and their daughter. Here also evidence of these witnesses becomes doubtful because once some of the persons had covered their faces, while sitting on motorcycle, identification of such persons can be doubted. It is not a case of PW-2 and PW-3 that they saw the accused persons taking the deceased towards the place Barka where her dead body was found. The quality of evidence of PW-2 and PW-3 regarding last seen of the accused persons in the company of the deceased is not very conclusive and clinching. It does not inspire the confidence of the Court because but for this evidence there is no other evidence on record connecting the appellants in commission of murder of the deceased.
21. The evidence of last seen is being treated as a weak evidence and the same can be made basis for conviction only when it is trustworthy and inspire the confidence of the Court. Law in this regard is well settled. In the case of Anjan Kumar Sarma And Ors. Vs. State of Assam; (2017) 14 SCC 359, the Apex Court has observed as under:
"14. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ''must' or ''should' and not ''may be' established;
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) The circumstances should be of a conclusive nature and tendency;
(4) They should exclude every possible hypothesis except the one to be proved; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (See: Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 (para 185 & 153); M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200 (para 18).
19. The circumstance of last seen together cannot by itself form the basis of holding the accused guilty of the offence. In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715, this court held that:
"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant. ..........
15. The theory of last seen--the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan [(2010) 15 SCC 588]."
22. Mr. R. Venkataramani relied upon Deonandan Mishra v. State of Bihar, (1955) 2 SCR 570 at p.582, to buttress his submission that the circumstance of last seen together coupled with lack of any satisfactory explanation by the accused is a very strong circumstance on the basis of which the accused can be convicted. It was held by this Court in the above judgment as follows: (AIR pp. 806-07, para 9) "It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. We are, therefore, of the opinion that this is a case which satisfies the standards requisite for conviction on the basis of circumstantial evidence."
23. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the above judgment as under:- (SCC p.776, para 34).
"34. 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. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."
22. Though there is no explanation from the accused persons in particular accused Kaptan Singh as to how the deceased died but present is a case where dead body of the deceased was found near a canal in an open space and thus it is difficult to hold that it is the accused persons alone, who have killed her. There are as many as six accused appellants in the present case and in absence of any specific role assigned to individual accused, it will not be safe for this Court to uphold the conviction of all the accused persons. Accused Vinod and Pushpendra were made accused merely on the evidence that they attended the village Panchayat and there they threatened the family members of the deceased for giving the dowry amount or to face dire consequences. Likewise, what role has been played by accused Satyapal Sing, Smt. Munisha Devi and Pankaj has also not been made very clear. It is a settled proposition of law that suspicion howsoever grave it is, it cannot take place of evidence. Recently in Devi Lal vs. State of Rajasthan; AIR 2019 SC 688 the Apex Court, while dealing with a case, observed as under:
"On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof."
Recently, in the case of Digamber Vaishnav Vs. State of Chhattisgarh (Supra) decided on 05.03.2019, the Apex Court has held as under (with respect to last seen):
"40 The prosecution has relied upon the evidence of PW-8 to show that the accused and victims were last seen together. It is settled that the circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence. If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen along with the accused at or near about the place of occurrence, the needle of suspicion would certainly point to the accused being the culprits and this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence does not inspire the confidence or is not trust worthy, there can be no conviction. To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of dead body."
23. At the instance of Kaptan Singh, seizure of one rope and gunny bag has been made but there is no FSL report on record and no other evidence to establish as to in what manner these two articles have been used in commission of murder or carrying the dead body of the deceased. Importantly, this seizure has been made from the open place accessible to everyone.
24. Considering the nature of evidence available on record, we are of the view that the accused persons are entitled to get the benefit of doubt. Law in this respect is also very clear. In Kali Ram vs. State of Himachal Pradesh, the Supreme Court; 1973 AIR 2773, while dealing with the issue relating to withholding or affording benefit of doubt, observed as under:
"26. It needs all the same to be re-emphasised that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused. The courts would not be justified in withholding that benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, in our opinion, is more apparent than real. As observed on page 3 of the book entitled "The Accused" by J.A. Coutts 1966 Edition, "When once it is realised, however, that the public interest is limited to the conviction, not of the guilty, but of those proved guilty, so that the function of the prosecutor is limited to securing the conviction only of those who can legitimately be proved guilty, the clash of interest is seen to operate only within a very narrow limit, namely, where the evidence is such that the guilt of the accused should be established. In the case of an accused who is innocent, or whose guilt cannot be proved, the public interest and the interest of the accused alike require an acquittal.
27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiation. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether. It may in this connection be apposite to refer to the following observations of Sir Carleton Allen quoted on page 157 of "The Proof of Guilt" by Glanville Williams, Second Edition:
"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."
The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahabrao Bobade & Anr. (AIR 1973 SC 2622) as is clear from the following observations:
"Certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."
25. Taking cumulative effect of the evidence, we find it difficult to uphold the conviction of the appellants. They are entitled to get the benefit of doubt.
26. Accordingly, the appeals succeed and are allowed. The impugned judgment is set-aside.
27. Appellant Satyapal Singh, Smt. Munisha Devi and Pankaj are on bail and, therefore, no further order is required in their respect.
28. Rest of the appellants are in jail, they be set free forthwith if not required in any other case.
Order Date :- 12.06.2020
SK/CM
(Dinesh Pathak, J.) (Pritinker Diwaker, J.)