DIGAMBER VAISHNAV & ANR. versus STATE OF CHHATTISGARH CRIMINAL APPEAL NOS. 428-430 OF 2019 MARCH 05, 2019

DIGAMBER VAISHNAV & ANR.

STATE OF CHHATTISGARH

Criminal Appeal Nos. 428-430 of 2019

MARCH 05, 2019

[A. K. SIKRI, S. ABDUL NAZEER AND M. R. SHAH, JJ.]

Penal Code, 1860:

ss. 302/34 and 394/34 – Murder and Robbery – ProsecutionCfor – Based on circumstantial evidence – Prosecution relied ontestimony of child witness; recoveries made u/s. 27 of Evidence Act;fingerprint report; FSL report; motive of committing robbery andon evidence of last seen together – Courts below convicted theaccused and sentenced them to death – On appeal, held: In thefacts of the case, the circumstances on which prosecution case wasDbased, cannot be relied on – There was unexplained delay inreporting the crime – The prosecution has withheld the best evidence– In the circumstance of the case, it cannot be inferred that theappellants had committed the crime.

Criminal Jurisprudence:

Burden of proof – Held: The burden of proof squarely restson the prosecution – The general burden never shifts – Strongsuspicion, strong coincidences and grave doubt cannot take theplace of legal proof – There can be no conviction on the basis ofsurmises and conjectures or suspicion – Evidence.

Administration of criminal justice – In Criminal cases, if twoviews are possible: one pointing to the guilt and other to theinnocence of the accused, the view favourable to the accused, shouldbe adopted – This principle has special relevance to the cases basedon circumstantial evidence.

Witness:

Child witness – Credibility – Need for corroboration – Held:The court as prudence seeks corroboration to the testimony ofchild witness – There is no rule of practice that in every case evidenceof child witness has to be corroborated – Section 118 of Evidence

Act governs competence of witness including child witness – Onlyprecaution while assessing the evidence of child witness is that thewitness must be reliable one.

Evidence Act, 1872:

s. 27 – Scope of – Held: Under s. 27 it is not the discovery ofevery fact that is admissible, but the discovery of relevant fact aloneis admissible.

Evidence:

Circumstantial evidence – Last seen theory – Reliance on –Held: The circumstance of last seen together cannot by itself formthe basis of holding accused guilty of offence – To constitute thelast seen together factor as an incriminating circumstance, theremust be close proximity between the time of seeing and recovery ofdead body.

Allowing the appeals, the Court

HELD: 1. One of the fundamental principles of criminaljurisprudence is undeniably that the burden of proof squarely restson the prosecution and that the general burden never shifts.There can be no conviction on the basis of surmises andconjectures or suspicion howsoever grave it may be. Strongsuspicion, strong coincidences and grave doubt cannot take theplace of legal proof. The onus of the prosecution cannot bedischarged by referring to very strong suspicion and existenceof highly suspicious factors to inculpate the accused nor falsity ofdefence could take the place of proof which the prosecution hasto establish in order to succeed, though false plea by the defenceat best, be considered as an additional circumstance, if othercircumstances unfailingly point to the guilt. [Para 15][854-E, F]

Jaharlal Das v. State of Orissa (1991) 3 SCC 27 : [1991]

2 SCR 298; Varkey Joseph v. State of Kerala 1993 Suppl(3) SCC 745 : [1993] 3 SCR 390; Sujit Biswas v. State

–of Assam (2013) 12 SCC 406 : [ 2013] 3 SCR 830 relied on.

2. It is also well-settled principle that in criminal cases, iftwo views are possible on evidence adduced in the case, onebinding to the guilt of the accused and the other is to his

Ainnocence, the view which is favourable to the accused, shouldbe adopted. This principle has special relevance in caseswherein the guilt of the accused is sought to be established bycircumstantial evidence. [Para 19][856-C, D]

Kali Ram v. State of Himachal Pradesh (1973) 2 SCCB808 : [1974] 1 SCR 722 – relied on

3.1 Section 118 of the Evidence Act governs competenceof the persons to testify which also includes child witness.Evidence of the child witness and its credibility could dependupon the facts and circumstances of each case. There is no ruleof practice that in every case the evidence of child witness hasCto be corroborated by other evidence before conviction can beallowed to stand but as prudence, the court always finds itdesirable to seek corroboration to such evidence from otherreliable evidence placed on record. Only precaution whichthe court has to bear in mind while assessing the evidenceDof child witness is that witness must be reliable one.[Para 21][856-E-H]

3.2 Evidence of child witness must be evaluated carefullyas the child may be swayed by what others tell him and he is aneasy prey to tutoring. Therefore, the evidence of child witnessEmust find adequate corroboration before it can be relied upon. Itis more rule of practical wisdom than law. [Para 22][857-A, B]

3.3 It is clear from the testimony of PW-8 that she is not aneyewitness to the incident. She was aged about 9 years at thetime of the incident. Her evidence is fraught with inconsistencies.FNone of the other witnesses have identified the appellants.Therefore, heavy reliance was placed on the testimony of PW-8.She did not tell PW-1 about the appellants while disclosing aboutthe incident for the first time. This is reflected from the FIRwhich has been registered against unknown persons. TheGtestimony of PW-8 contradicts with that of PWs 1, 3 and 10.In such circumstances, it is risky to rely on the uncorroboratedidentification of the appellants at the instance of PW-8.[Paras 24, 25, 26, and 27][857-G, H; 858-A-D]

3.4 PW-8 has not disclosed the identity of the appellants toPW-1. That is why the FIR was registered against unknownpersons. There are also inconsistencies in her evidence apartfrom the fact that the other children present in the house on thatday were not examined. There is substantial loss of time fromwhen PW-8 saw the deceased and the appellants together on16.12.2012 and when the deceased were found on 17.12.2012.In such circumstances, it is difficult to draw an inference that theappellants had committed the crime. [Para 43][862-F-H; 863-A]

Panchhi and others v. State of U.P. (1998) 7 SCC 177: [1998] 1 Suppl. SCR 40; State of U.P. v. Ashok Dixitand another (2000) 3 SCC 70 : [2000] 1 SCR 855 ;State of Rajasthan v. Om Prakash (2002) 5 SCC 745 :[2002] 3 SCR 753 ; Alagupandi alias Alagupandianv. State of Tamil Nadu (2012) 10 SCC 451 : [2012]4 SCR 342 – relied on.

4. There was an unexplained delay in reporting the crime.PW-8 in her deposition has stated that when she woke up in themorning, her room was locked from outside. When she shoutedfrom inside, ‘A’ opened the door. This version is furthercorroborated by PW-10. Though, ‘A’ had opened the door atabout 3 a.m., it is unexplained why PW-8 did not inform anyonetill 4 pm and the same was also unreported by PW-10, even thoughthe police station was at distance of some six kilometers. Thisalso raises question about veracity of the statement of PW-8.[Para 28][858-E, F]5.1 Under Section 27 of the Indian Evidence Act, it is notthe discovery of every fact that is admissible but the discovery ofrelevant fact is alone admissible. Relevancy is nothing but theconnection or the link between the facts discovered with thecrime. The recovery of the motorcycle is sought to be relied uponas circumstance against the appellants. There is nothing onrecord to show that the motorcycle recovered at the instance ofappellant No.1, belongs to him. PW-13, IO, in his cross-examination admits that he does not know whether the appellantNo.1 is the owner of the motorcycle. He further admits that noattempts were made by him to enquire about the owner of thevehicle. [Para 29][858-G, H; 859-A, B]

A5.2 PW-2 was the witness to the seizure of the motorcycle.According to him, the motorcycle was red in colour. However, asper the seizure memo, the recovered motorcycle was black incolour. This makes the recovery of the motorcycle unreliable.Testimony of PWs 4 and 5 is also unreliable since it contradictsBthat of PW-10. PW 10 does not mention anything about themotorcycle. PWs 4 and 5 contradict each other. It is relevant tostate that the police recorded the statement of PWs 4 and 5 afterdelay of over two months. [Paras 30 and 31][859-B, C, E]

5.3 The silver-patti recovered at the instance of theCappellants, is alleged to have been that of one of the deceased.However, no witness identifies the silver-patti as belonging toany of the deceased. PW-2 states that “the type of anklet thatwas seized” is easily available in the market. Hence, in the absenceof any identification of the seized anklet, no reliance can be placedon its recovery. The evidence of PW-2, who is the witness to theDseizure memo, is contrary to the memos brought on record.[Para 32][859-F, G]

5.4 The cash has not been traced back to the deceased asthe box from which articles were allegedly stolen has not beenrecovered or seen by any witness. Even in the FIR, there is noEaverment of any article or money being stolen or lost. Therefore,when the money allegedly recovered is being sought to be reliedupon as stolen from the house of the deceased, the same isunreliable when there is nothing on record to support the claimof theft or robbery from the scene of crime. [Para 33][860-A, B]F

5.5 The shirt of appellant No. 2 recovered from him inpursuance of his statement under Section 27 of the Evidence Actis allegedly matched with the small broken button found at thescene of crime. This has been relied upon by the courts below asanother circumstance to corroborate the presence of theGappellants at the scene of crime. However, there is nothing onrecord to show that the shirt is unique and cannot be matchedwith the shirt of any other person. PW-13 has admitted in histestimony that shirts of the same kind are easily available in themarket. In such circumstances, it cannot be conclusively proved

that the shirts are in any way unique to the ‘appellants’ shirt tothe exclusion of everyone else. Therefore, the reliance placedwith analysis of the shirt in the absence of any unique make thereofis improper. [Para 37][861-A-C]

6. PW-9 has been relied on for corroborating the testimonyof the child witness. to show the presence of the appellants at thehouse. PW 9 had deposed only on the basis of telephone call.He does not know the name of the accused. He has not seen theappellants-accused coming into the house. Therefore, hisevidence is not sufficient to place the appellants at the scene ofcrime. [Para 35][860-E]

7.1 The best evidence which would have thrown light onthe controversy in question, has been withheld. ‘A’ has not beenexamined by the prosecution and no reasons have been assignedto explain this anomaly. Considering the conflicting statementsof the witnesses examined by the prosecution, ‘A’ would havebeen in position to have seen the appellants at the house around3 A.M. She would have been the first person to have seen thedeceased persons and deposed about the circumstances after theincident. It is also relevant that there were other three childrenpresent in the house at the time of the incident. No attemptshave been made to examine them as well. [Para 34][860-C, D]

7.2 The expert, who examined the articles at the place ofoccurrence and found some finger prints, has not been examined.The person who took the sample finger prints has not beenexamined. There is no explanation about why the articles werejust left at the scene after developing the finger prints and whythey were not seized and sent for analysis on the same day.Further, no prints have been found on the doors or the steelalmirah to substantiate the robbery. The examination of expert iscrucial especially if reliance is placed on the finger print report tosuspect the guilt of the appellant. PW-12, Panch witness to theseizure of bottles states that the bottle was “lying near the doorof the courtyard was seized.” This makes the process of the liftingthe print suspicious. [Para 36][860-F-H]

A8. The forensic evidence against the appellants to provetheir presence at the scene of crime is insufficient. The findingsof the hair analysis are also inconclusive. The report onlyconcluded the specimen to the human hair. The same is notsufficient to substantiate the presence of the appellants.B[Para 38][861-C, D]

9. The prosecution has alleged robbery as motive for thecommission of the offence. It is sought to be sustained by therecovery of some cash and pair of silver patti that has not beenidentified by any witness. The site plan panchanama shows thatCgold ornaments, pearl necklace, silver ornaments, etc. were leftbehind on the person of the deceased. It is not explained as towhy appellants would intend to commit robbery but leaveexpensive ornaments behind. This has unsubstantiated the entiremotive for the commission of the offence, as alleged by theprosecution. [Para 39][861-D-F]D

10. The prosecution has relied upon the evidence of PW-8to show that the accused and victims were last seen together.The circumstance of last seen together cannot by itself form thebasis of holding accused guilty of offence. If there is any credibleevidence that just before or immediately prior to the death of theEvictims, they were last seen along with the accused at or nearabout the place of occurrence, the needle of suspicion wouldcertainly point to the accused being the culprits and this wouldbe one of the strong factors or circumstances inculpating themwith the alleged crime purported on the victims. However, if theFlast seen evidence does not inspire the confidence or is not trustworthy, there can be no conviction. To constitute the last seentogether factor as an incriminating circumstance, there must beclose proximity between the time of seeing and recovery of deadbody. [Para 40][861-G, H; 862-A]

GArjun Marik & Ors. v. State of Bihar 1994 Supp (2)SCC 372 : [1994] 2 SCR 265

Kanhaiya Lal v. State of Rajasthan (2014) 4 SCC,715 : [2014] 3 SCR744 – relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 428-430 of 2019.

From the Judgment and Order dated 30.04.2015 in CriminalReference No. 3 of 2014, Criminal Appeal No. 536 of 2014 and CriminalAppeal No. 537 of 2014 of the High Court of Chhatisgarh at Bilaspur.

S. Nagamuthu, Sr. Advocate, Himanshu Agarwal, Ms. Ankita S.,Ayush Raj Singh, Veerapan P. and Ms. Pyoli, Advs. for the Appellants.

Atul Jha, Sandeep Jha and Dharmendra Kumar Sinha, Advs., forthe Respondent.

The Judgment of the Court was delivered by

S. ABDUL NAZEER, J. 1. Leave granted.

2. These appeals have been preferred by Digamber Vaishnavand Girdhari Vaishnav challenging the judgment and order dated30.04.2015 passed by the High Court of Chhattisgarh at Bilaspur, inCriminal Reference No.3 of 2014, affirming the death sentence imposedby the Sessions Judge, Baloda Bazar and dismissing the criminal appealNos. 536 of 2014 and 537 of 2014 filed by them challenging the aforesaidjudgment and order of the Sessions Judge.

3. The prosecution story in brief is that the complainant, BadridasVaishnav lives in village Khapridih. He is retired teacher. Bhuneshwarwas his brother. Both were living in separate mohallas. BhuneshwarDas had two wives, namely, Shri Bai and Subhadra Bai. From Shri Bai,Bhuneshwar had seven daughters. From Subhadra Bai, he had five

Adaughters and son. Bhuneshwar Das had expired two years back.Mala, Kondi, Chandni, Nandini, Sharda and son Govinda were residingin the house apart from Shri Bai and Subhadra.

4. On 17.12.2012, at about 4 p.m., Chandni came to the house ofPW-1, Badridas and informed him that Shri Bai, Subhadra, Kondi, AmrikaBand Mala Bai are lying dead in the courtyard and in room. Thecomplainant along with his wife Shanti Bai and Chandni immediatelyrushed to the house of Bhuneshwar and saw that Amrika and Mala Baiwere lying dead at parchhi and Shri Bai, Subhadra and Kondi were lyingdead in the room. There was bleeding from the nose and mouth ofdeceased and there were marks of injuries on the neck.C

5. The complainant lodged the report of the occurrence in PoliceOutpost Gidhouri, where report (Exhibit P-6) was registered as per thestatement of the complainant which was registered as FIR in CrimeNo.430/12 in the Police Station Bilaigarh. Marg intimations of SubhadraBai, Shri Bai, Kondi, Mala Bai and Amrika Bai were registered as perDthe information given by Badridas. Witnesses were summoned for theexamination of the dead body of the deceased. Panchanama of thedeceased was prepared in the presence of the witnesses. The doctorsubmitted post-mortem reports after conducting post-mortem of all thedeceased. The cause of death of all the deceased was asphyxia due tostrangulation and the deaths were homicidal in nature. After post-mortemEreport, the dead bodies of all the deceased persons were handed over totheir relative Badridas for cremation.6. The investigating officer drew the map of the place of occurrencein the presence of the witnesses. The police seized bottle of GoldenGoa Whiskey (made of glass) and plastic torch which were lying at theFplace of occurrence. Six strands of black hair stuck between the fingersof right hand of the deceased Kondi, two white coloured buttons lyingbetween dead bodies, blood stained soil, plain soil and one woolen shawlwere also seized from the place of occurrence. The police also seized ashirt worn by the appellant No.1. Memorandum statement of the accusedDigamber was recorded as per his dictation wherein he stated that heGhas kept the motorcycle at the house of Girdhari and Rs.3000/- andanklet (pair patti) was kept in his house. sum of Rs.3000/- and ankletwere seized after taking it out from the pocket of trousers of Digamber.Memorandum statement of accused Girdhari was recorded wherein hestated that he has concealed Rs.2600/- and pair patti in carry bag at his

house. Cash and pair patti kept in plastic carry bag were producedby the accused Girdhari from inside his house which were seized. Shirtworn by accused Digamber was removed and seized and one whitecoloured shirt with two missing buttons was seized from the accusedGirdhari. Consent panchanama was prepared for taking the hair (of head)of accused Digamber and Girdhari and the hair (of head) of accusedwere seized. Seized articles were sent to the Forensic Science Laboratory.

7. An application was made to finger print expert for examinationof finger prints on the wine bottle seized from the place of occurrence.Report of Police Headquarter (Finger Prints) was received, accordingto which finger prints of accused Digamber were found on the bottle ofGolden Goa Whiskey. FSL Report regarding button of the shirt of theappellants and the buttons seized from the place of occurrence was alsoreceived wherein two buttons and threads were stated to be similar.

8. The police recorded the statement of PW-1, Badridas, SheetalDas, Smt. Shanti Bai, Kumari Chandni, PW-8, Anita Bai and Dan Bai,Sohandas, PW-9 under Section 161 of Cr.P.C. After completion ofinvestigation, chargesheet was filed in the court of Judicial Magistrate,who committed the case to the Sessions Court.

9. In order to prove their case, the prosecution examined 14witnesses. The appellants were also examined under Section 313 of theCr.P.C. wherein they pleaded that they are innocent and have been falselyimplicated in the offence.

10. The Sessions Court by its judgment dated 14.05.2014 came tothe conclusion that prosecution has successfully proved beyond doubtthat the appellants have committed robbery in the house of the deceasedpersons and committed murder of all the five ladies. Each of the appellantswas sentenced with R.I. for ten years and fine of Rs.500/-, in default ofpayment of fine, they will further undergo one month’s R.I. for the offenceunder Section 394 read with Section 34 of IPC. They were also sentencedwith capital punishment for the offence under Section 302 read withSection 34 IPC and ordered that they will be hanged till death.

11. The Death Reference under Section 366(1) of the Cr.P.C.was sent to the High Court for confirmation. The appellants preferredseparate appeals before the High Court. As noticed above, the HighCourt by its judgment dated 30.04.2015 affirmed the judgment of theSessions Court.

A12. Appearing for the appellants Sh. S. Nagamuthu, learned seniorcounsel has mainly contended that there was an unexplained delay inreporting the offence. Secondly, the courts below have mainly relied onthe testimony of PW-8. PW-8 is child witness who was present in thehouse at the time of the incident. She is not witness to the actualincident. Her testimony has not been corroborated. Therefore, it is riskyBto rely on uncorroborated identification of the appellants at her instance.It is further argued that the evidence of recoveries made under Section27 of the Indian Evidence Act is also unreliable. The recovery ofmotorcycle is also unreliable and that the articles recovered are notconnected to the crime. The testimony of PW-9 is hearsay and cannotCbe relied upon by the prosecution. Even the finger print report cannot berelied on. Finally, he submits that the evidence of last seen is insufficientto establish the guilt.

13. On the other hand, Sh. Atul Jha, learned counsel appearingfor the respondent, has supported the judgment of the courts below. HeDprays for dismissal of the appeals.

14. We have carefully considered the submissions of the learnedcounsel made at the Bar and perused the materials placed on record.

15. One of the fundamental principles of criminal jurisprudence isundeniably that the burden of proof squarely rests on the prosecutionEand that the general burden never shifts. There can be no conviction onthe basis of surmises and conjectures or suspicion howsoever grave itmay be. Strong suspicion, strong coincidences and grave doubt cannottake the place of legal proof. The onus of the prosecution cannot bedischarged by referring to very strong suspicion and existence of highlysuspicious factors to inculpate the accused nor falsity of defence couldFtake the place of proof which the prosecution has to establish in order tosucceed, though false plea by the defence at best, be considered as anadditional circumstance, if other circumstances unfailingly point to theguilt.

16. This Court in Jaharlal Das v. State of Orissa, (1991) 3 SCCG27, has held that even if the offence is shocking one, the gravity ofoffence cannot by itself overweigh as far as legal proof is concerned.In cases depending highly upon the circumstantial evidence, there isalways danger that the conjecture or suspicion may take the place oflegal proof. The court has to be watchful and ensure that the conjectureand suspicion do not take the place of legal proof. The court mustH

satisfy itself that various circumstances in the chain of evidence shouldbe established clearly and that the completed chain must be such as torule out reasonable likelihood of the innocence of the accused. Inorder 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 soughtto be drawn, must be cogently and firmly established;

ii.)those circumstances should be of definite tendencyunerringly pointing towards the guilt of the accused; and

iii.)the circumstances, taken cumulatively, should form chainso complete that there is no escape from the conclusionthat within all human probability the crime was committedby the accused and none else, and it should also be incapableof explanation on any other hypothesis than that of the guiltof the accused.

17. In Varkey Joseph v. State of Kerala, 1993 Suppl (3) SCC745, this Court has held that suspicion is not the substitute for proof.There is long distance between ‘may be true’ and ‘must be true’ andthe prosecution has to travel all the way to prove its case beyondreasonable doubt.

18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, thisCourt, while examining the distinction between ‘proof beyond reasonabledoubt’ and ‘suspicion’ has held as under:

“13. Suspicion, however grave it may be, cannot take the placeof proof, and there is large difference between something that“may be” proved, and something that “will be proved”. In criminaltrial, suspicion no matter how strong, cannot and must not bepermitted to take place of proof. This is for the reason that themental distance between “may be” and “must be” is quite large,and divides vague conjectures from sure conclusions. In criminalcase, the court has duty to ensure that mere conjectures orsuspicion do not take the place of legal proof. The large distancebetween “may be” true and “must be” true, must be covered byway of clear, cogent and unimpeachable evidence produced bythe prosecution, before an accused is condemned as convict,and the basic and golden rule must be applied. In such cases,while keeping in mind the distance between “may be” true and“must be” true, the court must maintain the vital distance between

Amere conjectures and sure conclusions to be arrived at, on thetouchstone of dispassionate judicial scrutiny, based upon completeand comprehensive appreciation of all features of the case, aswell as the quality and credibility of the evidence brought on record.The court must ensure, that miscarriage of justice is avoided, andif the facts and circumstances of case so demand, then theBbenefit of doubt must be given to the accused, keeping in mindthat reasonable doubt is not an imaginary, trivial or merelyprobable doubt, but fair doubt that is based upon reason andcommon sense”.

19. It is also well-settled principle that in criminal cases, if twoCviews are possible on evidence adduced in the case, one binding to theguilt of the accused and the other is to his innocence, the view which isfavourable to the accused, should be adopted. This principle has specialrelevance in cases wherein the guilt of the accused is sought to beestablished by circumstantial evidence [See Kali Ram v. State ofDHimachal Pradesh, (1973) 2 SCC 808].

20. Bearing these principles in mind, we shall now consider thecontentions of the learned counsel for the parties. In order to establishthat the accused have committed the offence, the prosecution has reliedon (i) Testimony of child witness Kumari Chandni (PW8); (ii) TheErecoveries made under Section 27 of the Evidence Act; (iii) The fingerprintreport; (iv) FSL report; (v) Motive of committing robbery; and (vi)Evidence of last seen together.

21. The case of the prosecution is mainly dependent on thetestimony of Chandni, the child witness, who was examined as PW-8.Section 118 of the Evidence Act governs competence of the persons toFtestify which also includes child witness. Evidence of the child witnessand its credibility could depend upon the facts and circumstances ofeach case. There is no rule of practice that in every case the evidenceof child witness has to be corroborated by other evidence before aconviction can be allowed to stand but as prudence, the court alwaysGfinds it desirable to seek corroboration to such evidence from other reliableevidence placed on record. Only precaution which the court has to bearin mind while assessing the evidence of child witness is that witnessmust be reliable one.

22. This Court has consistently held that evidence of child witnessmust be evaluated carefully as the child may be swayed by what otherstell him and he is an easy prey to tutoring. Therefore, the evidence of achild witness must find adequate corroboration before it can be reliedupon. It is more rule of practical wisdom than law. [See Panchhi andothers v. State of U.P, (1998) 7 SCC 177, State of U.P. v. AshokDixit and another, (2000) 3 SCC 70, and State of Rajasthan v. OmPrakash, (2002) 5 SCC 745].

23. In Alagupandi alias Alagupandian v. State of Tamil Nadu,(2012) 10 SCC 451, this Court has emphasized the need to accept thetestimony of child with caution after substantial corroboration beforeacting upon it. It was held that:

“36. It is settled principle of law that child witness can be acompetent witness provided statement of such witness is reliable,truthful and is corroborated by other prosecution evidence. Thecourt in such circumstances can safely rely upon the statement ofa child witness and it can form the basis for conviction as well.Further, the evidence of child witness and credibility thereofwould depend upon the circumstances of each case. The onlyprecaution which the court should bear in mind while assessingthe evidence of child witness is that the witness must be reliableone and his/her demeanour must be like any other competentwitness and that there exists no likelihood of being tutored. Thereis no rule or practice that in every case the evidence of such awitness be corroborated by other evidence before convictioncan be allowed to stand but as rule of prudence the court alwaysfinds it desirable to seek corroboration to such evidence fromother reliable evidence placed on record. Further, it is not the lawthat if witness is child, his evidence shall be rejected, even if itis found reliable.”

24. It is clear from the testimony of PW-8 that she is not aneyewitness to the incident. She was aged about 9 years at the time ofthe incident. Her evidence is fraught with inconsistencies. None of theother witnesses have identified the appellants. Therefore, heavy reliancewas placed on the testimony of PW-8. She did not tell PW-1, Badridasabout the appellants while disclosing about the incident for the first time.This is reflected from the FIR which has been registered against unknownpersons. In such circumstances, it is risky to rely on the uncorroborated

Aidentification of the appellants at the instance of PW-8, who has notdisclosed about the appellants at the first instance before PW-1 Badridas.

25. Shanti Bai, PW-3, wife of PW-1 has stated that PW-8 informedher that her mother had gone to work. This is in direct contradiction withthe fact that as per the prosecution story, she was lying dead. ChandniBherself states that in the morning, she saw her grandmother dead. Further,FIR records Badridas as saying that Chandni told him that Subhadra Baiis lying dead in her room.

26. The testimony of PW-8 also contradicts with that of PW-10.PW-10 states that herself and Anita had gone to the house of thedeceased at 3 A.M. and had seen the bodies of the deceased and alsoCthe children. However, PW-8 states that she got up at 7.00 A.M. andthat wife of Tekram (Anita) opened the door.

27. The testimony of PW-8 also contradicts that of PW-1,Badridas. According to PW-1, he was informed about the incident onlyat about 2 to 2.30 P.M. by Chandni. However, PW-8 states that “It isDcorrect to suggest that in the morning, I had told Badridas that who hadkilled them. I did not know them.”

28. At this stage, it is relevant to notice that there was an unexplaineddelay in reporting the crime, as rightly pointed out by the learned seniorcounsel for the appellants. PW-8 in her deposition has stated that whenEshe woke up in the morning, her room was locked from outside. Whenshe shouted from inside, wife of Tekram (Anita) opened the door. Thisversion is further corroborated by PW-10, Dan Bai, who has stated thatin the morning at about 3 a.m. on Monday that Anita had opened thedoor of their house from outside. The children were inside the room.Amrika Bai, Kondi, Subhadra Bai and Shri Bai were lying dead. Though,FAnita had opened the door at about 3 a.m., it is unexplained why PW-8did not inform anyone till 4 pm and the same was also unreported byPW-10, even though the police station was at distance of some sixkilometers. This also raises question about veracity of the statement ofPW-8, Chandni.G29. The second circumstance relied upon by the prosecution is

G29. The second circumstance relied upon by the prosecution isthe evidence of recovery. Under Section 27 of the Indian Evidence Act,it is not the discovery of every fact that is admissible but the discoveryof relevant fact is alone admissible. Relevancy is nothing but theconnection or the link between the facts discovered with the crime. Therecovery of the motorcycle is sought to be relied upon as circumstanceH

against the appellants. There is nothing on record to show that themotorcycle recovered at the instance of appellant No.1, belongs to him.PW-13, IO, in his cross-examination admits that he does not knowwhether the appellant No.1 is the owner of the motorcycle. He furtheradmits that no attempts were made by him to enquire about the ownerof the vehicle.

30. Testimony of PWs 4 and 5 is also unreliable since it contradictsthat of PW-10. As per PW-10, herself and Anita had seen the bodies ofthe deceased at 3 a.m. She did not see the assailants and does not mentionanything about the motorcycle. Hence, there is no occasion for theassailants of the deceased to remain in the house and hence the motorcyclewould not be outside the house of the deceased at 4 p.m. PWs 4 and 5contradict each other. While PW-4 states that the motorcycle was ofBajaj Company, PW-5 mentions it as motorcycle from Hero HondaCompany. PW-5 in his examination-in-chief says that he had moved themotorcycle to allow the tractor to pass. However, in his cross-examination,he says that he did not move the motorcycle and it was PW-4, whomoved it. PW-5 does not even state the day or month when he saw themotorcycle.31. PW-2 was the witness to the seizure of the motorcycle.According to him, the motorcycle was red in colour. However, as perthe seizure memo, the recovered motorcycle was black in colour. Thismakes the recovery of the motorcycle unreliable. It is relevant to statethat the police recorded the statement of PWs 4 and 5 after delay ofover two months.

32. Coming to the recovered articles, the silver-patti recovered atthe instance of the appellants, is alleged to have been that of the deceased-Shri Bai. However, no witness identifies the silver-patti as belonging toany of the deceased. PW-2 states that “the type of anklet that wasseized” is easily available in the market. Hence, in the absence of anyidentification of the seized anklet, no reliance can be placed on itsrecovery. The evidence of Rajesh Vaishnav, PW-2, who is the witnessto the seizure memo, is contrary to the memos brought on record. Thewitness deposes that the statements of the accused were recorded thrice,i.e. in Gidhauri Chowk, Khapridih and Barbhatha. Moreover, he statesthat the seizures from appellant No.2 took place in Kharri village and thememorandum of procedure took place in the station. This is in directcontradiction with the seizure memo, which states that seizures havetaken place in Barbhatha.

A33. The cash has not been traced back to the deceased as the boxfrom which articles were allegedly stolen has not been recovered orseen by any witness. Even in the FIR, there is no averment of anyarticle or money being stolen or lost. Therefore, when the money allegedlyrecovered is being sought to be relied upon as stolen from the house ofthe deceased, the same is unreliable when there is nothing on record toBsupport the claim of theft or robbery from the scene of crime.

34. Chandni, PW-8 has deposed that wife of Tekram (Smt. Anita)had opened the door at 3.00 A.M. She has not been examined by theprosecution and no reasons have been assigned to explain this anomaly.Considering the conflicting statements of the witnesses examined by theCprosecution, Anita would be in position to have seen the appellants atthe house around 3 A.M. She would have been the first person to haveseen the deceased persons and deposed about the circumstances afterthe incident. It is also relevant that there were other three children presentin the house at the time of the incident. No attempts have been made toDexamine them as well. Thus, the best evidence which would have beenthrown light on the controversy in question has been withheld.

35. Sohandas, PW-9 has been relied on for corroborating thetestimony of Chandni, the child witness. Reliance has been placed onher witness to show the presence of the appellants at the house. Sohandashad deposed only on the basis of telephone call from Amrika Bai thatEDigamber has come to see Kondi. PW-9 does not know the name ofGhirdhari. He has referred to boy accompanying appellant No.1, whichis not sufficient to show the acquaintance. He has not seen the appellantscoming into the house. Therefore, his evidence is not sufficient to placethe appellants at the scene of crime.

F36. The expert, who examined the articles at the place ofoccurrence and found some finger prints, has not been examined. Theperson who took the sample finger prints has not been examined. Thefinger prints had been lifted on 17.12.2012 whereas the articles wereseized on 18.12.2012. There is no explanation about why the articleswere just left at the scene after developing the finger prints and whyGthey were not seized and sent for analysis on the same day. Further, noprints have been found on the doors or the steel almirah to substantiatethe robbery. The examination of expert is crucial especially if reliance isplaced on the finger print report to suspect the guilt of the appellant.PW-12, Panch witness to the seizure of bottles states that the bottle wasH“lying near the door of the courtyard was seized.” This makes theprocess of the lifting the print suspicious.

37. The shirt of appellant No. 2 recovered from him in pursuanceof his statement under Section 27 of the Evidence Act is allegedly matchedwith the small broken button found at the scene of crime. This has beenrelied upon by the courts below as another circumstance to corroboratethe presence of the appellants at the scene of crime. However, there isnothing on record to show that the shirt is unique and cannot be matchedwith the shirt of any other person. PW-13 has admitted in his testimonythat shirts of the same kind are easily available in the market. In suchcircumstances, it cannot be conclusively proved that the shirts are in anyway unique to the ‘appellants’ shirt to the exclusion of everyone else.Therefore, the reliance placed with analysis of the shirt in the absenceof any unique make thereof is improper.

38. The forensic evidence against the appellants to prove theirpresence at the scene of crime is insufficient. The findings of the hairanalysis are also inconclusive. The report only concluded the specimento the human hair. The same is not sufficient to substantiate the presenceof the appellants.

39. The prosecution has alleged robbery as motive for thecommission of the offence. It is sought to be sustained by the recoveryof some cash and pair of silver patti that has not been identified by anywitness. The site plan panchanama shows that gold ornaments, pearlnecklace, silver ornaments, etc. were left behind on the person of thedeceased. It is not explained as to why appellants would intend to commitrobbery but leave expensive ornaments behind. The entire motive ofrobbery is negated if these facts are considered as it seems implausiblethat persons with an intent to commit robbery would leave withoutprecious ornaments that were on the person of the deceased. This hasunsubstantiated the entire motive for the commission of the offence, asalleged by the prosecution.

40. The prosecution has relied upon the evidence of PW-8 toshow that the accused and victims were last seen together. It is settledthat the circumstance of last seen together cannot by itself form thebasis of holding accused guilty of offence. If there is any credible evidencethat just before or immediately prior to the death of the victims, theywere last seen along with the accused at or near about the place ofoccurrence, the needle of suspicion would certainly point to the accusedbeing the culprits and this would be one of the strong factors orcircumstances inculpating them with the alleged crime purported on the

Avictims. However, if the last seen evidence does not inspire the confidenceor is not trust worthy, there can be no conviction. To constitute the lastseen together factor as an incriminating circumstance, there must beclose proximity between the time of seeing and recovery of dead body.41. In Arjun Marik & Ors. v. State of Bihar, 1994 Supp (2)BSCC 372, it has been held as under:-

“31. Thus the evidence that the appellant had gone to Sitaram inthe evening of 19-7-1985 and had stated in the night at the houseof deceased Sitaram is very shaky and inconclusive. Even if it isaccepted that they were there it would at best amount to be theCevidence of the appellants having been seen last together with thedeceased. But it is settled law that the only circumstance of lastseen will not complete the chain of circumstances to record thefinding that it is consistent only with the hypothesis of the guilt ofthe accused and, therefore, no conviction on that basis alone canbe founded”.D

42. In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC, 715,the Court has reiterated that the last seen together does not by itself leadto the inference that it was the accused who committed the crime. It isheld thus:

“12. The circumstance of last seen together does not by itself andEnecessarily lead to the inference that it was the accused whocommitted the crime. There must be something more establishingconnectivity 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”.F

43. PW-8 in her evidence has stated that the accused had comeone day before in the night, and next day, Amrika, Mala, Badi Amma,Amma and Kondi Didi had died. She is child witness. We have alreadynoticed that she has not witnessed the incident. PW-1 in his evidencesays that PW-8 had come to his house at 2.00 to 2.30 P.M. and informedGhim about the death of the deceased persons. PW-8 has not disclosedthe identity of the appellants to PW-1. That is why the FIR was registeredagainst unknown persons. We have also noticed the inconsistencies inher evidence apart from the fact that the other children present in thehouse on that day were not examined. There is substantial loss of timefrom when PW-8 saw the deceased and the appellants together onH

16.12.2012 and when the deceased were found on 17.12.2012. In suchcircumstances, it is difficult to draw an inference that the appellants hadcommitted the crime.

44. In view of the above, the appeals succeed and are allowed.The judgment and order passed by the High Court of Chhattisgarh atBilaspur dated 30.04.2015 in Criminal Reference No.3 of 2014 andCriminal Appeal Nos. 536 of 2014 and 537 of 2014 are hereby set aside.The judgment and order dated 14.05.2014 passed by the Sessions Judge,Baloda Bazar, Chhattisgarh in Sessions Case No.5 of 2014 is also setaside. The appellants/accused are hereby acquitted for the offences forwhich they were tried and they shall be released forthwith, unless requiredin any other case/cases.

Kalpana K. Tripathy

Appeals allowed.