Patna High Court
Kailash Koiry @ Kailash Singh & Ors vs State Of Bihar on 12 February, 2015
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.159 of 1993
Against the judgment of conviction and the order of sentence, dated
23.03.1993, passed by Shri diwakar Jha, 1st Additional Sessions Judge, Bhabhua, in Sessions Trial No. 437 of 1986/20 of 1990, arising out of Ramgarh Police Station Case No. 147 of 1985 ===========================================================
1. Kailash Koiry @ Kailash Singh, son of Balrup Koiry
2. Shiv Lochan Koiry @ Shiv Lochan Singh, son of Ram Swaroop Koiry Both residents of village Bhatauni, Police Station Ramgarh, District Bhabhua .... .... Appellants Versus The State of Bihar .... .... Respondent =========================================================== Appearance :
For the Appellants : Mr. Barun Kumar Choudhary For the Respondent : Dr. M. N. Jha, A.P.P. Mr. S. Azeem, Advocate - Amicus Curiae =========================================================== CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI AND HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE I. A. ANSARI) Date: 12-02-2015 By the judgment, dated 23.03.1993, passed, in Sessions Trial No. 437 of 1986/20 of 1990, by learned 1st Additional Sessions Judge, Bhabhua, the appellants, Kailash Koiry @ Kailash Singh, and Sheo Lochan Koiry @ Sheo Lochan Singh, stand convicted under Section 302 read with Section 34 of the Indian Penal Code. Following their conviction, the accused-appellants have been sentenced to undergo Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 2/32 imprisonment for life.
2. The case of the prosecution, as unfolded at the trial, may, in brief, be set out as under:
(i) On 04.10.1985, at about 8:00 PM, Lalan Koiry went to the house of one Vikrama Koiry, who was found to be quarreling with his brother. After Lalan Koiry returned to his house, accused Kailash Koiry @ Kailash Singh came and, on being called by accused Kailash Koiry, Lalan Koiry went away with him. On leaving his house, when Lalan Koiry was proceeding ahead with accused Kailash Koiry, they were seen to have been accompanied by accused Sheo Jatan Singh @ Sheo Jatan Koiry and Sheo Lochan Singh @ Sheo Lochan Koiry too. Since thereafter, Lalan Koiry did not return home, Lalan Koiry's mother, Fulmati Devi (PW 6), accompanied by her daughter, Janki Devi (PW 5), went, on the following morning, i.e., on 05.10.1985, looking for Lalan Koiry. On not finding Lalan Koiry in the village, she went to the house of Kailash Koiry; but Kailash Koiry was not found available at his house.
Though Fulmati Devi went to the houses of accused Sheo Jatan Koiry and Sheo Lochan Koiry also, they, too, were not found present at their respective houses. Enquiries made, in this regard, by Fulmati Devi from her co-villagers did not yield any information with regard to the whereabouts of her son, Lalan Koiry.
Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 3/32
(ii) At about 12 noon, on 05.10.1985, when Fulmati Devi accompanied by her daughter, Janki Devi (PW 5), was looking for her son, Lalan Koiry, they found Lalan Koiry lying dead with injuries on his body at the sugarcane field of Sudhu Bind.
(iii) Suspecting that Kailash Koiry, Sheo Lochan Koiry and Sheo Jatan Koiry were responsible for the death of her son, Lalan Koiry, because Lalan Koiry was alleged to have illicit relation with Chinta Devi, a niece of the accused persons, and had been threatened by Kailash Koiry, Shoe Jatan Koiry and Sheo Lochan Koiry with dire consequences, Fulmati Devi reported the occurrence to the Officer-in-Charge, Ramgarh Police Station, which was recorded in the form of her fardbayan.
(iv) Based on the fardbayan and treating the same as First Information Report, Ramgarh Police Station Case No. 147 of 1985, under Section 302/34 of the Indian Penal Code, was registered against the three accused persons, namely, (i) Kailash Koiry, (ii) Sheo Jatan Koiry and (iii) Sheo Lochan Koiry.
(v) During the course of investigation, inquest was held over the dead body of Lalan Koiry and, on completion of investigation, charge sheet was laid, under Sections 302/34 of the Indian Penal Code, against the accused persons, namely, Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 4/32
(i) Kailash Koiry, (ii) Sheo Jatan Koiry and (iii) Sheo Lochan Koiry.
3. A charge was accordingly framed against the three accused persons aforementioned under Section 302 read with Section 34 of the Indian Penal Code. To the charge so framed, all the accused pleaded not guilty.
4. In support of their case, prosecution examined altogether 8 (eight) witnesses, the relevant witnesses, out of them, being PW 3 (Ramauta Devi), sister-in-law of the deceased, PW 5 (Janki Devi), sister of the deceased, PW 6 (Fulmati Devi), mother of the deceased, PW 7 (Dr. Satyendra Kumar), who had conducted post mortem on the dead body of Lalan Koiry and PW 8 (Z. A. Kamal), Investigating Officer of the case. So far as PW 4 (Ram Chela) is concerned, he turned hostile.
5. Having, however, arrived at the finding that accused-appellants, namely, Kailash Koiry and Sheo Lochan Koiry, had been proved guilty of the charges, under Section 302 read with Section 34 of the Indian Penal Code, the learned trial Court convicted them accordingly. Following their conviction, sentence has been passed against the two convicted persons as mentioned above. One of the accused persons, namely, Sheo Jatan Koiry was, however, acquitted at the trial.
Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 5/32
6. Aggrieved by their conviction and the sentence passed against them, both the accused, aforementioned, as convicted persons, have preferred the present appeal.
7. We have heard Mr. Barun Kumar Choudhary, learned Counsel, for the appellants, and Dr. M. N. Jha, learned Additional Public Prosecutor, appearing on behalf of the State. We have also heard Mr. S. Azeem, learned Counsel, who has appeared as Amicus Curiae.
8. In the case at hand, there is, admittedly, no eye- witness to the occurrence of assault on, or killing of, Lalan Koiry. The prosecution's case, thus, rests on circumstantial evidence, the circumstances being that in the night of 04.10.1985, Lalan Koiry had left his house in the company of accused Kailash Koiry on being called by the latter and, while they were going ahead, they were seen to be in the company of accused Sheo Jatan Koiry and Sheo Lochan Koiry and, thereafter, Lalan Koiry was never seen alive and, eventually, his dead body was found, on the following day, in the afternoon, at the sugarcane field of one Sudhu Bind.
9. Bearing in mind the above noted broad features of the prosecution's case, we, first, come to the evidence of PW 7 (Dr. Satyendra Kumar), who had, admittedly, conducted post mortem examination on the dead body of Lalan Koiry. According to this witness's evidence, on 06.10.1985, at 8:00 Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 6/32 AM, he had performed post mortem examination on the dead body of Lalan Singh, son of Ram Bali Singh, at Sub Divisional Hospital, Bhabhua, and found as follows:
"(i) One penetrating wound 1/6" x 1/8" x tissue deep on the left side of front of neck;
(ii) Bruise of 2" x 1" over front of neck; and
(iii) Multiple abrasion of different shape and sizes on the front and back of neck."
10. In the opinion of the doctor (PW 7), injuries aforementioned were ante mortem in nature and the death was caused due to asphyxia as a result of injuries over the neck of the deceased, the time elapsed since death being 36 hours. The post mortem report has been proved as Exhibit-3.
11. From the medical evidence on record, what clearly transpires is that apart from the penetrating wound caused on the left side of the neck of the said deceased, there was a bruise on the front portion of the neck of the deceased and multiple abrasions of various shape and sizes on the front and back of the neck; but Lalan Koiry had died as a result of asphyxia caused by the injuries over his neck.
12. In the light of the medical evidence on record, when we turn to the evidence of PW 6 (Fulmati Devi), who is the informant and also mother of the said deceased, we notice that according to her evidence, on the night of the occurrence, Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 7/32 her son, Lalan Koiry, went to the house of one Vikrama Bind and returned from therein about half-an-hour. After Lalan Koiry arrived back at his house, accused Kailash Koiry came there and, on being called by him, Lalan Koiry went out with Kailash Koiry and, thereafter, Lalan Koiry did not return home and, in the morning, Janki Devi (PW 5) and Ramauta Devi (PW
3) searched for Lalan, but could not find him and during the search, though they went to the houses of accused Kailash Koiry, Sheo Jatan Koiry and Sheo Lochan Koiry, the said accused persons were not found available at their respective houses. It is in the evidence of PW 6 that in the afternoon, Lalan Koiry was found lying dead, at the sugarcane field of one Sudhu Bind, with scratches and swelling on his neck. It is also in the evidence of PW 6 that Lalan Koiry was alleged by the accused persons aforementioned to have developed illicit relation with Chinta Devi leading to her becoming pregnant and, then, the pregnancy was aborted and because of complications arising out of abortion, Chinta Devi died and as she (PW 6) suspected that the three accused persons aforementioned could be involved in the disappearance and killing of her son, Lalan Koiry, she lodged the First Information Report, which has come to be proved as Exhibit-2.
13. Broadly in tune with the evidence of PW 6 (Fulmati Devi), PW 5 (Janki Devi) and PW 3 (Ramauta Devi) Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 8/32 have deposed that on the night of the occurrence, Lalan Koiry went to the house of one Vikrama Bind, who was quarrelling with his brother, and he returned home after half-an-hour and, thereafter, accused Kailash Koiry arrived and, on being called by him, Lalan Koiry went away with accused Kailash Koiry and while they were going, these witnesses saw accused Sheo Lochan Koiry and Sheo Jatan Koiry, accompanying accused Kailash Koiry and since thereafter, Lalan Koiry did not return home and on the following morning, they searched for Lalan Koiry and, in the course of search, they went to the houses of accused Kailash Koiry, Sheo Jatan Koiry and Sheo Lochan Koiry, but having not found them at their respective houses, they continued the search for Lalan Koiry and, eventually, found his dead body lying at the sugarcane field of one Sudhu Bind. It is also in the evidence of PW 5 and PW 3 that on the alleged illicit relationship, which Lalan Koiry had developed with Chinta Devi, the niece of the accused, the accused bore grudge against Lalan Koiry and were suspected to have avenged for the death of their niece, Chinta Devi, by putting to end the life of Lalan Koiry.
14. Though PW 3, PW 5 and PW 6 were put to cross- examination by the defence, nothing material was elicited from their cross-examinations to show that what they had deposed was untrue or false.
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15. The materials facts, therefore, which have surfaced unshaken are that accused Kailash Koiry came to the house of deceased Lalan Koiry and, on being called by him, Lalan Koiry went away with accused Kailash Koiry and while they were going away from the house of Lalan Koiry, they were seen being accompanied by accused Sheo Jatan Koiry and Sheo Lochan Koiry and, thereafter, Lalan Koiry did not return home nor was he seen alive and, on the following morning, a search for him started, but Lalan Koiry was not found and though the search for Lalan Koiry carried PW 3 and PW 5 to the houses of the accused persons, none of the three accused aforementioned was found present in his house. However, Lalan's dead body was found, at about 12 noon, lying at the sugarcane field of one Sudhu Bind.
16. It is, however, noteworthy that it has been admitted by the witnesses aforementioned that notwithstanding the fact that Lalan Koiry had allegedly developed illicit relationship with Chinta Devi, niece of the accused persons, Lalan Koiry was on talking terms with the three accused. Nonetheless, PW 3, PW 5 and PW 6 suspected that the three accused bore grudge against Lalan Koiry for the illicit relationship he had allegedly maintained with their niece resulting into abortion of her pregnancy and her death caused due to abortion and, therefore, the accused were the ones, Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 10/32 who were suspected to have killed Lalan Koiry.
17. In the First Information Report, however, name of accused Sheo Jatan Koiry was not found mentioned and, therefore, he has not been convicted; but the remaining two accused persons, namely, Kailash Koiry and Sheo Lochan Koiry, have been convicted on the basis of the theory of last seen together coupled with the fact that the accused were suspected to have a motive for putting to death Lalan Koiry.
18. Thus, the case at hand rests on the theory of the accused appellants have been last seen with the said deceased.
19. In the case at hand, however, when the three accused persons, namely, Kailash Koiry, Sheo Lochan Koiry and Sheo Jatan Koiry were seen accompanying Lalan Koiry, while Lalan Koiry was going away with them on being called by accused Kailash Koiry, there was no reason as to why the name of accused Sheo Jatan Koiry was not mentioned, when the occurrence was reported to the police by none other than the mother of the said deceased, though she had mentioned, in the information, which has come to be recorded as First Information Report, the names of Kailash Koiry and Sheo Lochan Koiry, as persons she suspected to have killed her son, Lalan Koiry.
20. No explanation has been offered as to why the Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 11/32 name of Sheo Jatan Koiry was not found mentioned in the First Information Report, if he, too, was seen going away with Lalan Koiry. The possibility, therefore, of Sheo Jatan Koiry having been falsely implicated cannot be confidently excluded and the witnesses, who can go to the extent of roping an innocent person as a guilty one, cannot be readily believed in or relied upon; more so, when the three witnesses, namely Ramauta Devi (PW 3), Janki Devi (PW 5) and Fulmati Devi (PW 6) admit that they suspect that the three accused persons aforementioned had caused the death of Lalan Koiry.
21. While considering the prohibitive value of the evidence given by PW 3, PW 5 and PW 6, who are members of the same family, it may be noted that since none of them can be treated as a wholly reliable witness, they can, at best, be treated as witnesses, who are neither wholly reliable nor wholly unreliable.
22. It is trite that the witnesses, ordinarily, fall into three distinct categories, namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If the witness is wholly reliable, his evidence can be implicitly relied upon and such a witness's testimony can be made basis for conviction of an accused. Similarly, when a witness is found to be wholly unreliable, no reliance can at all be placed on his evidence and his evidence has to be rejected Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 12/32 outright. When, however, a witness is found to be neither wholly reliable, nor wholly unreliable, his evidence cannot be accepted as true unless his evidence is found to have been corroborated by some credible independent evidence, direct or circumstantial.
23. The evidence of the eye-witnesses, which the prosecution has adduced in the present case, cannot be safely relied upon unless the same is found to have been corroborated by some credible independent evidence, direct or circumstantial.
24. It is also an undisputed proposition of law that one infirm witness cannot be treated to have corroborated the evidence of another infirm witness meaning thereby that witnesses of same brand cannot be taken to have corroborated each other. Thus, when a witness is neither wholly reliable nor wholly unreliable, his evidence cannot be taken to have been corroborated by a witness of the same brand, namely, a witness, who is neither wholly reliable nor wholly unreliable, for, evidence is not to be counted, but weighed. It is not the number of the witnesses, which determines the outcome of a trial; rather, it is the inherent falsity or truth of the evidence given by the witness, which decides the outcome of trial. If each one of a large number of witnesses is found to be wholly unreliable, their evidence Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 13/32 cannot become acceptable as true merely because a large number of similar brand of witnesses has corroborated each other.
25. A reference, with regard to the above position of law, may be made to the case of Muluwa, S/o Binda and others Vs. The State of Madhya Pradesh, [AIR 1976 SC 989], wherein the Supreme Court has observed as follows :
"It is elementary that the evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand; for, evidence is to be weighed not counted. Since the evidence of P.Ws. 5 and 6 suffered from the same infirmities as that of Smt. Jugatia, it cannot be said that the trial Judge had no basis, whatsoever, for stigmatising it as unreliable."
(Emphasis is added)
26. Situated thus, it is clear that merely because PW 3, PW 5 and PW 6 have given evidence corroborating each other's evidence, their evidence cannot be made basis for holding them truthful witnesses, when each one of them is a witness, who is neither wholly reliable nor wholly unreliable, for, one infirm witness cannot be treated to have corroborated evidence of another infirm witness.
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27. Whether the evidence on record, which the prosecution has adduced, could convert the suspicion of the three witnesses, namely, PW 3, PW 5 and PW 6, into proof beyond reasonable doubt? This is the question, which this appeal demands an answer.
28. The standard of proof required, for the purpose of convicting a person, on the basis of circumstantial evidence, has been laid down, with great clarity, in the case of Hanumant Govind Nargundkar Vs. State of M.P., reported in MANU/SC/0037/1952 : 1952 SCR 1091, wherein the Court has pointed out that the circumstances, which are relied upon, must be fully established and the chain of evidence, furnished by the circumstances so established, should make a complete case against the accused and shall not leave any reasonable ground for a conclusion consistent with the innocence of the accused. The relevant observations, appearing in Hanumant Govind Nargundkar (supra), read as under:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 15/32 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.
29. Referring to the case of Hanumant Govind Nargundkar (supra), the Supreme Court, in Sharad Birdhichand Sarda Vs. State of Maharashtra, reported in MANU/SC/0111/1984 : (1984) 4 SCC 116, has pointed out that in a case, based on circumstantial evidence, the circumstances from which the conclusion of guilt is required to be drawn shall be fully established and the facts, so established, shall be not only consistent with the hypothesis of guilt of the accused, but shall be in consistent with any hypothesis of innocence of the accused.
30. Elaborately dealing with the principles, laid down in Hanumant Govind Nargundkar (supra), the Supreme Court, in Sharad Birdhichand Sarda (supra), pointed out, at para 152, thus:
152. 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 Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 16/32 be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC para 19, p. 807 : SCC (Cri) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 17/32 consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
31. Referring to the case of Hanumant Govind Nargundkar (supra), the Supreme Court has pointed out, in Deonandan Mishra Vs. The State of Bihar (MANU/SC/0030/1955 : AIR 1955 SC 801), too, 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. Referring to the facts of Deonandan Mishra (supra), the Supreme Court pointed out that in a case like this, where various links 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 when he (accused) 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.
32. The case of Joseph Vs. State of Kerala, reported in MANU/SC/0313/2000 : (2000) 5 SCC 197, is Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 18/32 a case, which is relevant, while considering the theory of last seen together. In Joseph (supra), the facts were, as noted by the Supreme Court, in its subsequent decision, in State of Rajasthan Vs. Kashi Ram, reported in MANU/SC/8632/2006 : (2006) 12 SCC 254, as under:
20. In Joseph s/o Kooveli Poulo Vs. State of Kerala MANU/SC/0313/2000 : (2000) 5 SCC 197; the facts were that the deceased was an employee of a school. The appellant representing himself to be the husband of one of the sisters of Gracy, the deceased, went to the St. Mary's Convent where she was employed and on a false pretext that her mother was ill and had been admitted to a hospital took her away with the permission of the Sister in charge of the Convent, PW-5. The case of the prosecution was that later the appellant not only raped her and robbed her of her ornaments, but also laid her on the rail track to be run over by a passing train. It was also found as a fact that the deceased was last seen alive only in his company, and that on information furnished by the appellant in the course of investigation, the jewels of the deceased, which were sold to PW-11 by the appellant, were seized. There was clear evidence to prove that those jewels were worn by the deceased at the time when she left the Convent with the appellant. When questioned under Section 313 Cr.P.C., the appellant did not even attempt to explain or clarify the incriminating circumstances inculpating and connecting him with the crime by his adamant attitude of total denial of everything.
Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 19/32 In this backdrop, the Court held:-
Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra Vs. Suresh, MANU/SC/0765/1999 :
(2000) 1 SCC 471). That missing link to connect the accused appellant, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy.
33. From the observations, made above, it becomes clear that when a fact is explainable and within the special knowledge of the accused, who faces trial, and the accused chooses not to offer explanation, it becomes an additional link in the circumstances in the sense that the omission to explain is a missing link, which may be treated to have been supplied Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 20/32 for arriving at the answer, which the circumstantial evidence makes one reach.
34. In Ram Gulam Choudhary & Ors. Vs. State of Bihar, reported in MANU/SC/0582/2001 : (2001) 8 SCC 311, the Supreme Court has pointed out that it is permissible, in a given case, to draw an inference from the silence of an accused if the answer could be given by the accused alone even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt inasmuch as Section 106 would apply to cases, where prosecution successfully proves the facts from which a reasonable inference can be drawn.
35. In fact, the case of Sahadevan @ Sagadevan Vs. State, represented by Inspector of Police, Chennai, reported in MANU/SC/1067/2002 : (2003) 1 SCC 534, is a case, which is closely akin to the case at hand, wherein the deceased was seen in the company of the appellant from the morning of March 5, 1985, till, at least, 5 pm on that day, when he was brought to his house and, thereafter, his dead body was found in the morning of March 6, 1985. In this fact situation, the Supreme Court observed:
Therefore, it has become obligatory on the appellants to satisfy the court as to Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 21/32 how, where and in what manner Vadivelu parted company with them.
This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. In the instant case the appellants have failed to discharge this onus. In their statement under Section 313 CrPC they have not taken any specific stand whatsoever.
36. Having taken into consideration the cases of Joseph (supra), Ram Gulam (supra) and Sahadevan (supra), the Supreme Court has pointed out, in Kashi Ram (supra), that Section 106 of the Evidence Act makes it clear that when any fact is especially within the knowledge of a person, the burden of proving that fact is on him.
37. Hence, observes the Supreme Court, in Kashi Ram (supra), that if a person is last seen with the deceased, he must offer an explanation as to how and when he parted with the company of the deceased. The Supreme Court has, in fact, gone to the extent of observing that in such a case, the Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 22/32 accused must furnish an explanation, which appears to the Court to be probable and satisfactory, and if the accused does so, he must be held to have discharged his burden; but if the accused fails to offer an explanation on the basis of the facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106. The Supreme Court has further pointed out, in Kashi Ram (supra), that if, in a case, resting on circumstantial evidence, the accused fails to offer reasonable explanation in discharging the burden placed on him by virtue of Section 106, his silence is an additional link in the chain of circumstances proved against him.
38. Clarifying the object of Section 106, the Supreme Court has laid down, in Kashi Ram (supra), that Section 106 does not shift the burden of proof in a criminal trial inasmuch as the burden of proof always rests on the prosecution, but it lays down the rule that when the accused does not throw any light upon the facts, which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link, which completes the chain. In coming to this conclusion, the Court has referred to Naina Mohamed (AIR 1960 SC
218). The relevant observations, appearing in Kashi Ram (supra), read as under:
23, It is not necessary to multiply with Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 23/32 authorities. The principle is well settled.
The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 24/32 consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. MANU/TN/0359/1959 : AIR 1960 Mad 218.
39. Ordinarily, the circumstance of last seen together would be relevant, when it is established by the evidence on record that the time gap between the point of time, when the accused and the deceased were seen together alive, and when the deceased was found dead, is so small that possibility of any other person being with the deceased can be completely ruled out.
40. Thus, the time gap between the accused person having been seen in the company of the deceased and the death of the deceased would be a material consideration for appreciation of evidence in such matters.
41. What is, however, of paramount importance to note is that it cannot be always stated that the evidence of last seen together must be rejected merely because the time gap between the point of time, when the accused persons were seen in the company of the deceased, and the coming into light of the offence committed is of a considerable long duration. There is no fixed or straight-jacket formula in respect of duration of time gap. Obviously, it would depend on the facts of a given case if the circumstance of the last seen Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 25/32 together is so material that it can lead the Court to conclude that none, but the accused was last seen in the company of the deceased and was, therefore, the one, who had caused death of the deceased. Reference, in this regard, may be made to the cases of Bodhraj Vs. State of J & K, reported in MANU/SC/0723/2002 : (2002) 8 SCC 45, State of U.P. v. Satish, reported in MANU/SC/0090/2005 : (2005) 3 SCC 114, Ramreddy Rajesh Khanna Reddy v. State of A.P., reported in MANU/SC/8070/2006 : (2006) 10 SCC 172 and Jaswant Gir v. State of Panjab, reported in MANU/SC/2585/2005 : (2005) 12 SCC 438. The Supreme Court has summarized the theory of last seen together, in State of Goa v. Sanjay Thakran & Anr., reported in MANU/SC/7187/2007 : (2007) 3 SCC 755, at Para 34, in following words, "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 Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 26/32 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 a considerable long duration. There can be no fixed or straight jacket 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 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 Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 27/32 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.
42. While considering the present appeal, it needs to be borne in mind that it is possible to convict a person on the ground of his having seen last in the company of the deceased if the dead body of the deceased is found shortly after the accused is seen in the company of the deceased and, in such a situation, it is for the accused to offer plausible and convincing explanation, as to when, why, where and in what circumstances, he had parted company with the deceased so that the Court can infer that someone other than the accused, facing trial, may be the one who was responsible for the death of the person, whom the accused had been seen last in the company of. If the accused fails to offer reasonable and convincing explanation by showing as to when, why, where Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 28/32 and in what circumstances, he had parted with the deceased, it would remain open to the Court to infer, if the facts situation of the case so warrant, that it is none, but the accused, who had put to death the person whom the accused was last seen to have been in the company of.
43. In the case at hand too, if we believe the evidence of PW 3, PW 5 and PW 6 that accused Kailash Koiry had come to the house of Lalan Koiry and, on being called by him, Lalan Koiry accompanied him and, while Lalan Koiry and Kailash Koiry were proceeding ahead, they were seen to have been accompanied by the accused Sheo Jatan Koiry and Sheo Lochan Koiry and, since thereafter, Lalan Koiry was never seen alive and, eventually, his dead body was found on the following day afternoon at the sugarcane field of one Sudhu Bind, it would not be wholly unreasonable and illegal to decipher that the two accused-appellants were the ones, who had put to death Lalan Koiry. Can this inference be confidently held to be the only inference is the question, which, now, falls for consideration?
44. Considering the fact that the very evidence, given by PW 3, PW 5 and PW 6 as to how Lalan Koiry happened to have left his house, has not been held by us to be wholly credible, trustworthy and reliable, it is well-neigh impossible to hold, boldly and confidently, that the only Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 29/32 inference can be, and must be, that they were the ones, who had put to death Lalan Koiry.
45. We appreciate that the accused-appellants had remained silent and their silence cannot stop the Court from drawing such an inference from the evidence on record as may be reasonable, when none of the accused-appellants had explained as to when, where and in what circumstances, they had parted company with Lalan Koiry and when they had parted company with Lalan Koiry, whether Lalan Koiry was alive or not. However, this explanation could have been demanded from them only when this Court could have held, and held confidently, that the evidence of PW 3, PW 5 and PW 6, who are members of the same family, is wholly reliable and their evidence prove that Lalan Koiry did leave his house in the company of Kailash Koiry, Sheo Jatan Koiry and Sheo Lochan Koiry and was never seen alive thereafter.
46. Considering, however, the fact, as we have already discussed above, that none of the three witnesses, namely, PW 3, PW 5 and PW 6 can be treated to be wholly reliable and as their evidence fall in the category of those witnesses, who are neither wholly reliable nor wholly unreliable, they cannot be taken to have corroborated each other's evidence, for, one infirm witness cannot have taken to have corroborated the evidence of another infirm witness. Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 30/32
47. Coupled with the above, the disturbing question, which remains to be answered is: whether it was accused Kailash Koiry, who had put to death Lalan Koiry, or it was accused Sheo Lochan Koiry, who had put Lalan Koiry to death, or whether it was, in furtherance of the common intention of the two accused-appellants, that Lalan Koiry was killed? Since there is only one fatal injury on the neck in the form of penetrating wound caused on the left side of the frontal region of the neck, there ought to be some material on record, either direct or circumstantial, showing that Lalan Koiry was put to death by both the appellants in furtherance of their common intention; or else, the possibility that only one of them had caused the death of Lalan Koiry cannot be wholly and confidently excluded nor can it be confidently excluded that out of the two accused-appellants, one of them had left Lalan Koiry in the company of the other accused-appellant before Lalan Koiry was put to death if he was put to death, while in the company of any of the two accused-appellants.
48. Situated thus, it becomes abundantly clear that when it is not possible to determine with certainty as to whether both or one of the accused-appellants had caused death of Lalan Koiry ▬ assuming that they were the ones, in whose company, Lalan Koiry had left his house ▬ a reasonable doubt does arise as to whether both the accused-appellants Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 31/32 can be held to have caused, in furtherance of their common intention, death of Lalan Koiry.
49. Should the Court punish both the appellants merely because they chose to remain silent or were not found at their respective houses on the following day of the occurrence? There can be multiple reasons, which may make an innocent person maintain silence and/or may make a person run away even if he was not involved in the commission of the offence. The case at hand was, therefore, a case, where the accused-appellants deserved to be accorded, and ought to have been accorded, benefit of doubt.
50. Placed as we, we are clearly of the view that in the facts and attending circumstances of the present case, the appellants ought to have been accorded, at least, benefit of doubt.
51. In the result and for the foregoing reasons, we allow this appeal. The impugned conviction of the accused- appellants and the sentences passed against them by the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offence, which they stand convicted of, and they are hereby acquitted of the same under benefit of doubt.
52. Since both the accused-appellants are on bail, their bail bonds are hereby cancelled and their sureties shall Patna High Court CR. APP (DB) No.159 of 1993 dt.12-02-2015 32/32 stand discharged.
53. Let the Amicus Curiae be paid a fee of Rs. 5,000/-.
54. Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records.
(I. A. Ansari, J.)
S. P. SINGH, J.: I agree.
(Samarendra Pratap Singh, J.)
Prabhakar Anand/AFR
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