GIST OF APPEAL
1. The appellant, and one Mange Ram, were convicted in Sessions Trial No. 47 of 2000, for offences under Sections 302/364/392/394/201 read with Section 34 of Indian Penal Code (‘IPC’), by the learned Additional Sessions Judge, Jagadhri, Haryana. They were awarded life sentence under Section 302 IPC, and lesser sentence on the remaining convictions, vide order dated 11.07.2003. The two then filed separate appeals before Punjab and Haryana High Court. During the pendency of his appeal the co-accused Mange Ram passed away on 24.10.2004, and his appeal stood abated vide order dated 11.05.2017. The appeal of the present appellant was dismissed and the conviction and sentence of the trial court was upheld by the High Court, vide its order dated 31.05.2017. His SLP before this Court was given leave on 28.03.2022.
2. The case of the prosecution is entirely based on circumstantial evidence. The ‘evidence’ of last seen and the “discoveries” made from the information given by the appellant.
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CIRCUMSTANTIAL FACTS IN THE PRESENT CASE
7. The evidence of last seen is of Karanjit Singh (PW10) who is the neighbour of the complainant (PW11). PW10 had seen the deceased along with the two accused i.e., Dinesh Kumar and Mange Ram at about 7:00 P.M. on 08.05.2000. According to the witness the deceased was driving the tractor and the two i.e., the appellant and Mange Ram were sitting on the mudguard of the tractor.
MURDER WAS FOR DECEASED’S TRACTOR, BY KIDNAPPING HIM IS THE ‘MOTIVE’. MOTIVE IS NOT CONVINCING
8. As we can see the case of the prosecution rests on two circumstantial evidences: (A) The disclosure given in the police custody and the discovery on its basis and (B) The evidence of last seen in the form of PW10. In a case of circumstantial evidence, motive too is of significance. As far as motive is concerned, the prosecution case is that the two accused killed the deceased only to steal his tractor. The deceased in this case was a 42 year old well built man of 6 feet 2 inches in height (Post Mortem report dated 12.05.2000). The prosecution case is that the deceased was kidnapped and murdered by the two accused, for his tractor which they had robbed from the deceased, after putting him to death. Now this tractor the accused had in any case abandoned, and did nothing to recover it till one of them was caught on 12.05.2000. In short, the ‘motive’ is not very convincing.
DISCOVERIES MADE IN THE PRESENT CASE AND ITS ANALYSIS
The disclosure made by the appellant while in police custody, which led to certain discoveries, such as the place where the stolen tractor was abandoned, the place where the alleged crime was committed, and the place where the body was thrown in the canal, and also the discovery of ‘Parna’, burnt hair, wrist watch, and currency notes of Rs.250/.
THERE CANNOT BE A “DISCOVERY” OF AN ALREADY DISCOVERED FACT. DISCOVERY SHOULD BE OF A DISTINCT FACT FROM THE FACTS ALREADY DISCOVERED
Section 27 of the Evidence Act reads as under:“
How much of information received from accused may be proved—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”
The above provision shows that discovery should be of a distinct fact, the fact which has been discovered by disclosure of the one in police custody. All the same, these facts were already in the knowledge of the police in the earlier discovery made by the co-accused Mange Ram. The co-accused Mange Ram was arrested on 12.05.2000 and had led to these discoveries on 12th, 13th & 14th May.
The present appellant was arrested on May 14, 2000, and the alleged discoveries made by him were later in time. The discoveries which were made on the pointing out of co-accused Mange Ram cannot be read against the present appellant. If the disclosure has been made by the accused to the police while he was in their custody and such a disclosure leads to discovery of a fact then that discovery is liable to be read as evidence against the accused in terms of Section 27 of the Act. All the same, the distinguishing feature of such a discovery must be that such a disclosure must lead to the discovery of a “distinct fact”. The recovery of the stolen tractor, the place where the murder was committed and the place where body was thrown in the canal were facts which were already in the knowledge of the police, since it is the case of the prosecution that the co-accused Mange Ram, who was arrested by the police 2 days preceding the arrest of the present appellant, had earlier led to the same discoveries on 12th, 13th & 14th of May, 2000. So, this disclosure and discovery made thereafter cannot be read against the present appellant. There cannot be a “discovery” of an already discovered fact! What remains is the discovery of currency notes, wrist watch, ‘Parna’ and hair. The forensic report of hair only says that it belongs to ‘human’. The currency notes cannot be really identified with the deceased. What remains is the watch and the ‘Parna’, which has been identified with the deceased.
ANALYSIS OF CIRCUMSTANTIAL EVIDENCE
The second is the evidence of “last seen”. This is in the form of PW10 Kartar Singh who is the neighbour of the complainant and who had seen the appellant along with co-accused Mange Ram with the deceased on 08.05.2000 at about 7.30 PM in the evening.
TIME OF DEATH IN POST-MORTEM DOES NOT TALLY WITH THE PROSECUTION’S ALLEGING TIME OF DEATH. ALSO, PRESENCE OF RIGOR MORTIS NOT EXPLAINED BY THE PROSECUTION
9. The admitted position is that the body of deceased was discovered from the canal four days later i.e. on 12.05.2000 in the afternoon and the post-mortem was conducted at about 4.15 PM on the same day i.e. 12.05.2000. According to Post-mortem report the death had taken place more than 48 hours prior to the post-mortem, which would mean that death took place approximately before 4.00 PM on 10.05.2000. Although the autopsy reports normally do not give precise time of death, but only indicate an approximate time or duration, yet under normal circumstances in the present case, death should have been on May 10, 2000 or May 9, 2000. All the same, the case of the prosecution is that the deceased was killed on May 8, 2000 itself. If this be so then it was the duty of the prosecution to explain as to how rigor mortis remained present in the body, even after four days of the death. The possibility of the rigor mortis remaining in the body for 90 hours cannot be ruled out completely, but this was never explained by the prosecution. It was the duty of the prosecution to explain the unusual circumstances under which rigor mortis remained present in the body, even for 90 hours, in the month of May.
SECTION 165 INDIAN EVIDENCE ACT
11. We are afraid that by pointing out the weakness in the cross examination of the defense the presiding judge indirectly admits to the weakness in the trial itself. We say this for the reasons that under Section 165 of the Act, a trial judge has tremendous powers to “ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant”. It is in fact the duty of the Trial Judge to do so if it is felt that some important and crucial question was left from being asked from a witness. The purpose of the trial is after all to reach to the truth of the matter.
The powers of a presiding judge in a criminal trial and his duty to get to the truth of the matter have been laid down in a seminal judgement of this Court authored by Justice O. Chinnappa Reddy, which is Ram Chander v. State of Haryana [1981 AIR 1036]. Justice O. Chinnappa Reddy in the said judgment refers to his earlier Judgment [Sessions Judge, Nellore v. Intha Ramana Reddy, ILR 1972 AP 683; 1972 Cri LJ 1485] given by him as a Judge of the Andhra Pradesh High Court.
The duty of the presiding judge of a criminal trial is not to watch the proceedings as a spectator or a recording machine but he has to participate in the trial “by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth.” While referring to a decision of Lord Denning in Jones v. National Coal Board [(1957) 2 All ER 155: (1957) 2 WLR 760] the learned Judge had said that it is the duty of the judge to ask questions to the witnesses when it becomes necessary to clear up any point that has been overlooked or left obscure, then he goes on to say as under:
“We may go further than Lord Denning and say that it is the duty of a judge to discover the truth and for that purpose he may “ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant” (Section 165, Evidence Act). But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten or bully witnesses. He must take the prosecution and the defence with him. The Court, the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The judge, ‘like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and (sic the) old’.”
PRESENCE OF RIGOR MORTIS AFTER 90 HOURS IS UNUSUAL
In our considered opinion the prosecution has failed to establish important links in this case, which is so vital in a case of circumstantial evidence. Rigor mortis present in the body after 90 hours is unusual, though possible under certain circumstances. It was the duty of the prosecution to explain it. The defense too failed to question it and the Court remained silent. Let us now revert to the evidence of last seen.
12. The evidence of last seen becomes an extremely important piece of evidence in a case of circumstantial evidence, particularly when there is a close proximity of time between when the accused was last seen with the deceased and the discovery of the body of the deceased, or in this case the time of the death of the deceased. This does not mean that in cases where there is a long gap between the time of last seen and the death of the deceased the last seen evidence loses its value. It would not, but then a very heavy burden is placed upon the prosecution to prove that during this period of last seen and discovery of the body of the deceased or the time of the death of the deceased, no other person but the accused could have had an access to the deceased. The circumstances of last seen together in the present case by itself cannot form the basis of guilt (See: Anjan Kumar Sarma & Others v. State of Assam – (2017) 14 SCC 359 -para 19).
LAST SEEN FACTS IN THE PRESENT CASE ARE NOT RELIABLE TO CONVICT
As per the postmortem which was conducted on 12.05.2000 at 4:15 P.M, the death was 48 hours prior to the post mortem, which means it was before 4:00 P.M. on 10.05.2000. Even assuming that the death has taken place, a day earlier i.e. 09.05.2000, still there is a long gap between the last seen which is at 7:00 pm on 08.05.2000 and the morning of 09.05.2000. In the case of State of Goa v. Sanjay Thakran – (2007) 3 SCC 755, where in the evidence of last seen, the recovery of dead body was only a few hours before “last seen”, it was not considered reliable.
WHAT IS BURDEN OF PROOF UNDER SECTION 106 IEA?
The trial court as well as the High Court have lost sight of the vital aspect of the matter. Both the Courts have relied on Section 106 of the Act and have held that since the accused was last seen with the deceased and he has not been able to give any reasonable explanation of his presence with the deceased in his statement under Section 313 of the Cr.P.C., it has to be read against the accused and therefore it has to be counted as an additional link in the chain of circumstantial evidence. In present case in the findings of the trial court and High Court this appears to be the most important aspect which weighed with the trial court as well as the High Court in establishing the guilt of the accused. We are, however, afraid this is a complete misreading of Section 106 of the Act.
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Section 106 of the Act is an exception to the rule which is Section 101 of the Act, and it comes into play only in a limited sense where the evidence is of a nature which is especially within the knowledge of that person and then the burden of proving that fact shifts upon him that person.
SECTION 106 IEA SHALL COMES TO PLAY ONLY WHEN PROSECUTION DISCHARGE INITIAL BURDEN
The burden of proof is always with the prosecution. It is the prosecution which has to prove its case beyond a reasonable doubt. Section 106 of the Act does not alter that position. It only places burden for disclosure of a fact on the establishment of certain circumstances. We have no reason to doubt the testimony of PW10 (Karanjit Singh), the sole witness of last seen. In his statement under Section 313 of the Code of Criminal Procedure, when the appellant was questioned about being in the company of the deceased on 08.05.2000 along with co-accused Mange Ram, no explanation was given by the appellant about his whereabouts. It is for this reason that it has been held that the accused has not been able to discharge his burden under Section 106 of the Act and therefore this has to be read as an additional link in the chain of evidence against the appellant. To our mind, however, Section 106 of the Act would not even come to play here under the facts and circumstances of the present case.
13. What has to be kept in mind is that Section 106 of the Act, only comes into play when the other facts have been established by the prosecution. In this case when the evidence of last seen itself is on a weak footing, considering the long gap of time between last seen by PW10 and the time of death of the deceased, Section 106 of the Act would not be applicable under the peculiar facts and the circumstances of the case.
PROSECUTION NOT DISCHARGED ITS INITIAL BURDEN
14. As far as the recovery is concerned, the recovery is again weak. The so called alleged place of crime and the recovery of tractor or the place where the tractor was abandoned had already been disclosed by the co-accused by the time the present appellant was arrested. Therefore, making a disclosure about the place of occurrence or the place where the tractor was abandoned is of no consequence. As far as the recovery of watch, currency notes of Rs. 250/, hair and ‘Parna’ from the residence of the appellant are concerned, the currency notes and hair have not been identified with the deceased. In a criminal trial, the prosecution has to prove its case beyond reasonable doubt. This heavy burden has to be discharged by the prosecution. It becomes even more difficult in a case of circumstantial evidence. In the present case, the nature of circumstantial evidence is weak. In order to establish a charge of guilt on the accused, the chain of evidence must be completed and the chain must point out to one and only one conclusion, which is that it is only the accused who have committed the crime and none else. We are afraid the prosecution has not been able to discharge this burden.
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15. In our considered view, in the present case the prosecution has not been able to prove its case beyond reasonable doubt. The evidence of last seen, only leads upto a point and no further. It fails to link it further to make a complete chain. All we have here is the evidence of last seen, which as we have seen looses much of its weight under the circumstances of the case, due to the long duration of time between last seen and the possible time of death. What we can call as discovery here under Section 27 of the Act, is the discovery of ‘Parna’ and watch of the deceased. This evidence in itself is not sufficient to fix guilt on the appellant.
In a case where there is no direct eye witness to the crime, the prosecution has to build its case on the circumstantial evidence. It is a very heavy burden cast on the prosecution. The chain of circumstances collected by the prosecution must complete the chain, which should point to only one conclusion which is that it is the accused who had committed the crime, and none else. Each evidence which completes the chain of evidences must stand on firm grounds. In our considered opinion, the evidence placed by the prosecution in this case does not pass muster the standard required in a case of circumstantial evidence.
Accused Acquitted
PARTY: Dinesh Kumar vs. The State of Haryana – CRIMINAL APPEAL NO.530 OF 2022 – May 04, 2023.
https://main.sci.gov.in/supremecourt/2018/31881/31881_2018_11_1501_44221_Judgement_04-May-2023.pdf
