APPRECIATION OF EVIDENCE – EXPLAINED: 6. This Court has dealt with the case of circumstantial evidence time and again. It has consistently been held that a conviction can be based solely on circumstantial evidence. The prosecution’s case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are complete in themselves. The circumstances from which the conclusion of guilt is to be drawn should be fully established. 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 or point to any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. The evidence produced by the prosecution should be of such a nature that it makes the conviction of the accused sustainable.
(Vide: Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; State of Uttar Pradesh v. Satish, AIR 2005 SC 1000; and Paramjeet Singh @ Pamma v. State of Uttarakhand, AIR 2011 SC 200).
DISCREPANCIES IN DEPOSITIONS: 9. In Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181, this Court considered the issue of discrepancies in the depositions. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution must not prompt the court to reject the evidence in its entirety. Therefore, irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence, more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, so as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness.
A similar view has been re-iterated in State of U.P. v. M.K. Anthony, AIR 1985 SC 48; State rep. by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191.\
POLICE AS A WITNESS: 10. Learned counsel for the appellants has vehemently argued that in some of the recoveries, though a large number of people were available, but only police personnel were made recovery witnesses. Thus, the whole prosecution case becomes doubtful.
The term ‘witness’ means a person who is capable of providing information by way of deposing as regards relevant facts, via an oral statement, or a statement in writing, made or given in Court, or otherwise.
In Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra, AIR 1995 SC 1930, this Court dealt with the issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. The Court held that though the same must be subject to strict scrutiny, however, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigation or in the prosecution. However, as far as possible the corroboration of their evidence on material particulars should be sought.
(See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212; Balbir Singh v. State, (1996) 11 SCC 139; Kalpnath Rai v. State (Through CBI), AIR 1998 SC 201; M. Prabhulal v. Assistant 14 Page 15 Director, Directorate of Revenue Intelligence, AIR 2003 SC 4311; and Ravinderan v. Superintendent of Customs, AIR 2007 SC 2040)
11. Thus, a witness is normally considered to be independent unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause to bear such enmity against the accused so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness or that his deposition cannot be relied upon if it inspires confidence.
INQUEST & INQUIRY: 13. It has been canvassed on behalf of the appellants that the provisions of Sections 174 and 176(3) Cr.P.C. had not been complied with and the body had been exhumed by the IO without the permission of the Executive Magistrate and therefore, the investigation had not been conducted in accordance with law. Subsection (1) of Section 174 Cr.P.C. only puts an obligation on the part of the IO to intimate the Executive Magistrate empowered to hold inquest but there is nothing in law which provides that investigation cannot be carried out without his permission in writing or in his absence. Even otherwise, the provision stands qualified “unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate.” The object of the inquest proceeding is merely to ascertain whether a person has died under unnatural circumstances or an unnatural death and if so, what is the cause of death. More so, the inquest report is not a piece of substantive evidence and can be utilised only for contradicting the witnesses to the inquest examined during the trial. Neither the inquest report nor the post-mortem report can be termed as basic or substantive evidence and thus, any discrepancy occurring therein cannot be termed as fatal or suspicious circumstance which would warrant benefit of doubt to the accused.
(Vide: Pooda Narayan & Ors. v. State of A.P., AIR 1975 SC 1252; Rameshwar Dayal & Ors. v. State of U.P., AIR 1978 SC 1558; Kuldeep Singh v. State of Punjab, AIR 1992 SC 1944; George & Ors. v. State of Kerala & Anr., AIR 1998 SC 1376; Suresh Rai & Ors. v. State of Bihar, AIR 2000 SC 2207; and Munshi Prasad & Ors. v. State of Bihar, AIR 2001 SC 3031).
evidence collected by illegal means: 14. So far as the provisions of Section 176 Cr.P.C. are concerned, the said provisions are attracted when a person dies in police custody and there is suspicion that death had been caused by the police itself. In other eventualities also, as provided in Section 176 Cr.P.C., the Magistrate may hold the enquiry. Even if the submission of the appellants is considered to have some substance it will not tilt the balance in their favour. It is a settled legal proposition that evidence collected even by improper or illegal means is admissible if it is relevant and its genuineness stands proved. However, the court may be cautious while scrutinizing such evidence. In such a fact-situation, it may be considered a case of procedural lapse on the part of the Investigating Officer and it should not be discarded unless the appellant satisfies the court that any prejudice has been caused to him.
(Vide: Umesh Kumar v. State of Andhra Pradesh, JT 2013 (12) SC 213; and Pooran Mal v. Director of Inspection, Income-Tax, New Delhi & Ors., AIR 1974 SC 348).
LAST SEEN TOGETHER: 15. A number of witnesses have deposed of seeing the deceased in the company of the appellants before the incident. In cases where the accused was last seen with the deceased victim (last seen-together theory) just before the incident, it becomes the duty of the accused to explain the circumstances under which the death of the victim 18 Page 19 occurred.
(Vide: Nika Ram v. State of Himachal Pradesh, AIR 1972 SC 2077; and Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106).
SECTION 313 Cr.P.C – ACCUSED MUST EXPLAIN THE CIRCUMSTANCE PUT AGAINST HIM: 16. It is obligatory on the part of the accused while being examined under Section 313 Cr.P.C., to furnish some explanation with respect to the incriminating circumstances associated with him, and the court must take note of such explanation even in a case of circumstantial evidence, to decide whether or not the chain of circumstances is complete.
[Vide: Musheer Khan @ Badshah Khan & Anr. v. State of Madhya Pradesh, AIR 2010 SC 762; and Dr. Sunil Clifford Daniel (supra)].
DEATH PENALTY SETASIDE: 20. The facts and circumstances involved in the instant case do not meet the requirement of rarest of rare cases as explained hereinabove and we are of the considered view that it is not a fit case where the death sentence awarded to the appellants should be affirmed. Considering the current trend in view of the judgment of this Court in Swamy Shraddanand (2) @ Murali Manohar Mishra v. State of Karnataka, (2008) 13 SCC 767 which has subsequently been followed by this Court as is evident from the judgments in State of Uttar Pradesh v. Sanjay Kumar, (2012) 8 SCC 537; and Gurvail Singh @ Gala v. State of Punjab, (2013) 2 SCC 713, we are of the considered opinion that ends of justice would meet if they are awarded the sentence of 30 years without remission.
PARTY: MAOHU @ MADHURANATHA & ANR. vs. STATE OF KARNATAKA – Criminal Appeal Nos.1357-1358 of 2011 – NOVEMBER 28, 2013 – [2013] 12 S.C.R. 947.
