Supreme Court of India
DIGAMBER VAISHNAV & ANR.versusSTATE OF CHHATTISGARH CRIMINAL APPEAL NOS. 428-430 OF 2019 MARCH 05, 2019
- Citation
- 2019 INSC 308
- Decided
- 5 March 2019
- Disposal
- Appeal(s) allowed
- Bench
- A K SIKRI
Holding
A conviction cannot be sustained on uncorroborated child testimony, unexplained delays, and irrelevant or inadequately linked recoveries; the prosecution failed to prove guilt beyond reasonable doubt.
Summary
The appellants were convicted of murder and robbery based largely on the testimony of a nine‑year‑old child witness, recoveries under Section 27 of the Evidence Act, fingerprint and forensic reports, and the alleged motive of robbery. The Supreme Court examined whether the prosecution had discharged its burden of proof beyond reasonable doubt, focusing on the reliability of the child’s testimony, the unexplained delay in reporting the crime, and the relevance and identification of the seized items. It held that the child’s evidence was inconsistent, uncorroborated, and not sufficient to establish the accused’s presence, while the material recoveries were either unrelated or inadequately linked to the crime. The Court reiterated that the burden of proof never shifts to the accused and that suspicion, however strong, cannot replace legal proof, especially in cases relying on circumstantial evidence. Consequently, the Court found the chain of circumstantial evidence incomplete and acquitted the appellants, setting aside the death sentences and the lower courts' judgments.
Issues considered
- The prosecution must prove the guilt of the accused beyond reasonable doubt despite reliance on circumstantial evidence.
- Whether the testimony of a child witness, uncorroborated and inconsistent, can sustain a conviction.
- Whether recoveries under Section 27 of the Evidence Act, including a motorcycle, cash, and silver anklet, are relevant and sufficiently linked to the crime.
- Whether the unexplained delay in reporting the offence defeats the prosecution’s case.
- Whether the ‘last seen together’ doctrine alone can establish the accused’s guilt.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 313, s. 366(1)
- Indian Evidence Act, 1872s. 118, s. 27
- Indian Penal Code, 1860s. 302/34, s. 394/34
Subjects
circumstantial evidenceburden of proofchild witnessSection 27 Evidence Actlast seen doctrineforensic evidencefingerprint evidencerobbery motivemurderacquittaldeath penaltyappeal
Judgment
844 SUPREME [2019]
COURT2 REPORTS
S.C.R. 844 [2019] 2 S.C.R.
A DIGAMBER VAISHNAV & ANR.
v.
STATE OF CHHATTISGARH
Criminal Appeal Nos. 428-430 of 2019
B 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 – Prosecution
C for – Based on circumstantial evidence – Prosecution relied on
testimony of child witness; recoveries made u/s. 27 of Evidence Act;
fingerprint report; FSL report; motive of committing robbery and
on evidence of last seen together – Courts below convicted the
accused and sentenced them to death – On appeal, held: In the
facts of the case, the circumstances on which prosecution case was
D
based, cannot be relied on – There was unexplained delay in
reporting the crime – The prosecution has withheld the best evidence
– In the circumstance of the case, it cannot be inferred that the
appellants had committed the crime.
Criminal Jurisprudence:
E
Burden of proof – Held: The burden of proof squarely rests
on the prosecution – The general burden never shifts – Strong
suspicion, strong coincidences and grave doubt cannot take the
place of legal proof – There can be no conviction on the basis of
surmises and conjectures or suspicion – Evidence.
F
Administration of criminal justice – In Criminal cases, if two
views are possible: one pointing to the guilt and other to the
innocence of the accused, the view favourable to the accused, should
be adopted – This principle has special relevance to the cases based
on circumstantial evidence.
G Witness:
Child witness – Credibility – Need for corroboration – Held:
The court as a prudence seeks corroboration to the testimony of
child witness – There is no rule of practice that in every case evidence
of child witness has to be corroborated – Section 118 of Evidence
H
844
DIGAMBER VAISHNAV & ANR. v. STATE OF CHHATTISGARH 845
Act governs competence of a witness including child witness – Only A
precaution while assessing the evidence of child witness is that the
witness must be a reliable one.
Evidence Act, 1872:
s. 27 – Scope of – Held: Under s. 27 it is not the discovery of
every fact that is admissible, but the discovery of relevant fact alone B
is admissible.
Evidence:
Circumstantial evidence – Last seen theory – Reliance on –
Held: The circumstance of last seen together cannot by itself form
the basis of holding accused guilty of offence – To constitute the C
last seen together factor as an incriminating circumstance, there
must be close proximity between the time of seeing and recovery of
dead body.
Allowing the appeals, the Court
HELD: 1. One of the fundamental principles of criminal D
jurisprudence is undeniably that the burden of proof squarely rests
on the prosecution and that the general burden never shifts.
There can be no conviction on the basis of surmises and
conjectures or suspicion howsoever grave it may be. Strong
suspicion, strong coincidences and grave doubt cannot take the
place of legal proof. The onus of the prosecution cannot be E
discharged by referring to very strong suspicion and existence
of highly suspicious factors to inculpate the accused nor falsity of
defence could take the place of proof which the prosecution has
to establish in order to succeed, though a false plea by the defence
at best, be considered as an additional circumstance, if other F
circumstances 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 –
G
relied on.
2. It is also well-settled principle that in criminal cases, if
two views are possible on evidence adduced in the case, one
binding to the guilt of the accused and the other is to his
H
846 SUPREME COURT REPORTS [2019] 2 S.C.R.
A innocence, the view which is favourable to the accused, should
be adopted. This principle has a special relevance in cases
wherein the guilt of the accused is sought to be established by
circumstantial evidence. [Para 19][856-C, D]
Kali Ram v. State of Himachal Pradesh (1973) 2 SCC
B 808 : [1974] 1 SCR 722 – relied on
3.1 Section 118 of the Evidence Act governs competence
of the persons to testify which also includes a child witness.
Evidence of the child witness and its credibility could depend
upon the facts and circumstances of each case. There is no rule
of practice that in every case the evidence of a child witness has
C
to be corroborated by other evidence before a conviction can be
allowed to stand but as a prudence, the court always finds it
desirable to seek corroboration to such evidence from other
reliable evidence placed on record. Only precaution which
the court has to bear in mind while assessing the evidence
D of a child witness is that witness must be a reliable one.
[Para 21][856-E-H]
3.2 Evidence of a child witness must be evaluated carefully
as the child may be swayed by what others tell him and he is an
easy prey to tutoring. Therefore, the evidence of a child witness
E must find adequate corroboration before it can be relied upon. It
is more a 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 an
eyewitness to the incident. She was aged about 9 years at the
time of the incident. Her evidence is fraught with inconsistencies.
F None 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 about
the incident for the first time. This is reflected from the FIR
which has been registered against unknown persons. The
G testimony of PW-8 contradicts with that of PWs 1, 3 and 10.
In such circumstances, it is risky to rely on the uncorroborated
identification of the appellants at the instance of PW-8.
[Paras 24, 25, 26, and 27][857-G, H; 858-A-D]
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DIGAMBER VAISHNAV & ANR. v. STATE OF CHHATTISGARH 847
3.4 PW-8 has not disclosed the identity of the appellants to A
PW-1. That is why the FIR was registered against unknown
persons. There are also inconsistencies in her evidence apart
from the fact that the other children present in the house on that
day were not examined. There is a substantial loss of time from
when PW-8 saw the deceased and the appellants together on
B
16.12.2012 and when the deceased were found on 17.12.2012.
In such circumstances, it is difficult to draw an inference that the
appellants 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 Dixit
and another (2000) 3 SCC 70 : [2000] 1 SCR 855 ; C
State of Rajasthan v. Om Prakash (2002) 5 SCC 745 :
[2002] 3 SCR 753 ; Alagupandi alias Alagupandian
v. State of Tamil Nadu (2012) 10 SCC 451 : [2012]
4 SCR 342 – relied on.
4. There was an unexplained delay in reporting the crime. D
PW-8 in her deposition has stated that when she woke up in the
morning, her room was locked from outside. When she shouted
from inside, ‘A’ opened the door. This version is further
corroborated by PW-10. Though, ‘A’ had opened the door at
about 3 a.m., it is unexplained why PW-8 did not inform anyone
till 4 pm and the same was also unreported by PW-10, even though E
the police station was at a distance of some six kilometers. This
also 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 not
the discovery of every fact that is admissible but the discovery of F
relevant fact is alone admissible. Relevancy is nothing but the
connection or the link between the facts discovered with the
crime. The recovery of the motorcycle is sought to be relied upon
as a circumstance against the appellants. There is nothing on
record to show that the motorcycle recovered at the instance of
G
appellant No.1, belongs to him. PW-13, IO, in his cross-
examination admits that he does not know whether the appellant
No.1 is the owner of the motorcycle. He further admits that no
attempts were made by him to enquire about the owner of the
vehicle. [Para 29][858-G, H; 859-A, B]
H
848 SUPREME COURT REPORTS [2019] 2 S.C.R.
A 5.2 PW-2 was the witness to the seizure of the motorcycle.
According to him, the motorcycle was red in colour. However, as
per the seizure memo, the recovered motorcycle was black in
colour. This makes the recovery of the motorcycle unreliable.
Testimony of PWs 4 and 5 is also unreliable since it contradicts
B that of PW-10. PW 10 does not mention anything about the
motorcycle. PWs 4 and 5 contradict each other. It is relevant to
state that the police recorded the statement of PWs 4 and 5 after
delay of over two months. [Paras 30 and 31][859-B, C, E]
5.3 The silver-patti recovered at the instance of the
C appellants, is alleged to have been that of one of the deceased.
However, no witness identifies the silver-patti as belonging to
any of the deceased. PW-2 states that “the type of anklet that
was seized” is easily available in the market. Hence, in the absence
of any identification of the seized anklet, no reliance can be placed
on its recovery. The evidence of PW-2, who is the witness to the
D
seizure 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 as
the box from which articles were allegedly stolen has not been
recovered or seen by any witness. Even in the FIR, there is no
E averment of any article or money being stolen or lost. Therefore,
when the money allegedly recovered is being sought to be relied
upon as stolen from the house of the deceased, the same is
unreliable when there is nothing on record to support the claim
of 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 in
pursuance of his statement under Section 27 of the Evidence Act
is allegedly matched with the small broken button found at the
scene of crime. This has been relied upon by the courts below as
another circumstance to corroborate the presence of the
G appellants at the scene of crime. However, there is nothing on
record to show that the shirt is unique and cannot be matched
with the shirt of any other person. PW-13 has admitted in his
testimony that shirts of the same kind are easily available in the
market. In such circumstances, it cannot be conclusively proved
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DIGAMBER VAISHNAV & ANR. v. STATE OF CHHATTISGARH 849
that the shirts are in any way unique to the ‘appellants’ shirt to A
the exclusion of everyone else. Therefore, the reliance placed
with analysis of the shirt in the absence of any unique make thereof
is improper. [Para 37][861-A-C]
6. PW-9 has been relied on for corroborating the testimony
of the child witness. to show the presence of the appellants at the B
house. PW 9 had deposed only on the basis of a telephone call.
He does not know the name of the accused. He has not seen the
appellants-accused coming into the house. Therefore, his
evidence is not sufficient to place the appellants at the scene of
crime. [Para 35][860-E] C
7.1 The best evidence which would have thrown light on
the controversy in question, has been withheld. ‘A’ has not been
examined by the prosecution and no reasons have been assigned
to explain this anomaly. Considering the conflicting statements
of the witnesses examined by the prosecution, ‘A’ would have D
been in a position to have seen the appellants at the house around
3 A.M. She would have been the first person to have seen the
deceased persons and deposed about the circumstances after the
incident. It is also relevant that there were other three children
present in the house at the time of the incident. No attempts
E
have been made to examine them as well. [Para 34][860-C, D]
7.2 The expert, who examined the articles at the place of
occurrence and found some finger prints, has not been examined.
The person who took the sample finger prints has not been
examined. There is no explanation about why the articles were
F
just left at the scene after developing the finger prints and why
they were not seized and sent for analysis on the same day.
Further, no prints have been found on the doors or the steel
almirah to substantiate the robbery. The examination of expert is
crucial especially if reliance is placed on the finger print report to
suspect the guilt of the appellant. PW-12, Panch witness to the G
seizure of bottles states that the bottle was “lying near the door
of the courtyard was seized.” This makes the process of the lifting
the print suspicious. [Para 36][860-F-H]
H
850 SUPREME COURT REPORTS [2019] 2 S.C.R.
A 8. The forensic evidence against the appellants to prove
their presence at the scene of crime is insufficient. The findings
of the hair analysis are also inconclusive. The report only
concluded the specimen to the human hair. The same is not
sufficient to substantiate the presence of the appellants.
B [Para 38][861-C, D]
9. The prosecution has alleged robbery as motive for the
commission of the offence. It is sought to be sustained by the
recovery of some cash and a pair of silver patti that has not been
identified by any witness. The site plan panchanama shows that
C gold ornaments, pearl necklace, silver ornaments, etc. were left
behind on the person of the deceased. It is not explained as to
why appellants would intend to commit robbery but leave
expensive ornaments behind. This has unsubstantiated the entire
motive for the commission of the offence, as alleged by the
prosecution. [Para 39][861-D-F]
D
10. The prosecution has relied upon the evidence of PW-8
to show that the accused and victims were last seen together.
The circumstance of last seen together cannot by itself form the
basis of holding accused guilty of offence. If there is any credible
evidence that just before or immediately prior to the death of the
E victims, they were last seen along with the accused at or near
about the place of occurrence, the needle of suspicion would
certainly point to the accused being the culprits and this would
be one of the strong factors or circumstances inculpating them
with the alleged crime purported on the victims. However, if the
F last seen evidence does not inspire the confidence or is not trust
worthy, there can be no conviction. To constitute the last seen
together factor as an incriminating circumstance, there must be
close proximity between the time of seeing and recovery of dead
body. [Para 40][861-G, H; 862-A]
G Arjun 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.
H
DIGAMBER VAISHNAV & ANR. v. STATE OF CHHATTISGARH 851
Case Law Reference A
[1991] 2 SCR 298 relied on Para 16
[1993] 3 SCR 390 relied on Para 17
[2013] 3 SCR 830 relied on Para 18
[1974] 1 SCR 722 relied on Para 19
B
[1998] 1 Suppl. SCR 40 relied on Para 22
[2000] 1 SCR 855 relied on Para 22
[2002] 3 SCR 753 relied on Para 22
[2012] 4 SCR 342 relied on Para 22
[1994] 2 SCR 265 relied on Para 41 C
[2014] 3 SCR744 relied on Para 42
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 428-430 of 2019.
From the Judgment and Order dated 30.04.2015 in Criminal
Reference No. 3 of 2014, Criminal Appeal No. 536 of 2014 and Criminal D
Appeal 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., for
the Respondent. E
The Judgment of the Court was delivered by
S. ABDUL NAZEER, J. 1. Leave granted.
2. These appeals have been preferred by Digamber Vaishnav
and Girdhari Vaishnav challenging the judgment and order dated
30.04.2015 passed by the High Court of Chhattisgarh at Bilaspur, in F
Criminal Reference No.3 of 2014, affirming the death sentence imposed
by the Sessions Judge, Baloda Bazar and dismissing the criminal appeal
Nos. 536 of 2014 and 537 of 2014 filed by them challenging the aforesaid
judgment and order of the Sessions Judge.
3. The prosecution story in brief is that the complainant, Badridas G
Vaishnav lives in village Khapridih. He is a retired teacher. Bhuneshwar
was his brother. Both were living in separate mohallas. Bhuneshwar
Das had two wives, namely, Shri Bai and Subhadra Bai. From Shri Bai,
Bhuneshwar had seven daughters. From Subhadra Bai, he had five
H
852 SUPREME COURT REPORTS [2019] 2 S.C.R.
A daughters and a son. Bhuneshwar Das had expired two years back.
Mala, Kondi, Chandni, Nandini, Sharda and son Govinda were residing
in the house apart from Shri Bai and Subhadra.
4. On 17.12.2012, at about 4 p.m., Chandni came to the house of
PW-1, Badridas and informed him that Shri Bai, Subhadra, Kondi, Amrika
B and Mala Bai are lying dead in the courtyard and in a room. The
complainant along with his wife Shanti Bai and Chandni immediately
rushed to the house of Bhuneshwar and saw that Amrika and Mala Bai
were lying dead at parchhi and Shri Bai, Subhadra and Kondi were lying
dead in the room. There was bleeding from the nose and mouth of
deceased and there were marks of injuries on the neck.
C 5. The complainant lodged the report of the occurrence in Police
Outpost Gidhouri, where report (Exhibit P-6) was registered as per the
statement of the complainant which was registered as FIR in Crime
No.430/12 in the Police Station Bilaigarh. Marg intimations of Subhadra
Bai, Shri Bai, Kondi, Mala Bai and Amrika Bai were registered as per
D the information given by Badridas. Witnesses were summoned for the
examination of the dead body of the deceased. Panchanama of the
deceased was prepared in the presence of the witnesses. The doctor
submitted post-mortem reports after conducting post-mortem of all the
deceased. The cause of death of all the deceased was asphyxia due to
strangulation and the deaths were homicidal in nature. After post-mortem
E report, the dead bodies of all the deceased persons were handed over to
their relative Badridas for cremation.
6. The investigating officer drew the map of the place of occurrence
in the presence of the witnesses. The police seized a bottle of Golden
Goa Whiskey (made of glass) and a plastic torch which were lying at the
F place of occurrence. Six strands of black hair stuck between the fingers
of right hand of the deceased Kondi, two white coloured buttons lying
between dead bodies, blood stained soil, plain soil and one woolen shawl
were also seized from the place of occurrence. The police also seized a
shirt worn by the appellant No.1. Memorandum statement of the accused
Digamber was recorded as per his dictation wherein he stated that he
G
has kept the motorcycle at the house of Girdhari and Rs.3000/- and
anklet (pair patti) was kept in his house. A sum of Rs.3000/- and anklet
were seized after taking it out from the pocket of trousers of Digamber.
Memorandum statement of accused Girdhari was recorded wherein he
stated that he has concealed Rs.2600/- and pair patti in carry bag at his
H
DIGAMBER VAISHNAV & ANR. v. STATE OF CHHATTISGARH 853
[S. ABDUL NAZEER, J.]
house. Cash and a pair patti kept in a plastic carry bag were produced A
by the accused Girdhari from inside his house which were seized. Shirt
worn by accused Digamber was removed and seized and one white
coloured shirt with two missing buttons was seized from the accused
Girdhari. Consent panchanama was prepared for taking the hair (of head)
of accused Digamber and Girdhari and the hair (of head) of accused
B
were seized. Seized articles were sent to the Forensic Science Laboratory.
7. An application was made to finger print expert for examination
of finger prints on the wine bottle seized from the place of occurrence.
Report of Police Headquarter (Finger Prints) was received, according
to which finger prints of accused Digamber were found on the bottle of
Golden Goa Whiskey. FSL Report regarding button of the shirt of the C
appellants and the buttons seized from the place of occurrence was also
received wherein two buttons and threads were stated to be similar.
8. The police recorded the statement of PW-1, Badridas, Sheetal
Das, Smt. Shanti Bai, Kumari Chandni, PW-8, Anita Bai and Dan Bai,
Sohandas, PW-9 under Section 161 of Cr.P.C. After completion of D
investigation, 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 14
witnesses. The appellants were also examined under Section 313 of the
Cr.P.C. wherein they pleaded that they are innocent and have been falsely E
implicated in the offence.
10. The Sessions Court by its judgment dated 14.05.2014 came to
the conclusion that prosecution has successfully proved beyond doubt
that the appellants have committed robbery in the house of the deceased
persons and committed murder of all the five ladies. Each of the appellants
was sentenced with R.I. for ten years and fine of Rs.500/-, in default of F
payment of fine, they will further undergo one month’s R.I. for the offence
under Section 394 read with Section 34 of IPC. They were also sentenced
with capital punishment for the offence under Section 302 read with
Section 34 IPC and ordered that they will be hanged till death.
11. The Death Reference under Section 366(1) of the Cr.P.C. G
was sent to the High Court for confirmation. The appellants preferred
separate appeals before the High Court. As noticed above, the High
Court by its judgment dated 30.04.2015 affirmed the judgment of the
Sessions Court.
H
854 SUPREME COURT REPORTS [2019] 2 S.C.R.
A 12. Appearing for the appellants Sh. S. Nagamuthu, learned senior
counsel has mainly contended that there was an unexplained delay in
reporting the offence. Secondly, the courts below have mainly relied on
the testimony of PW-8. PW-8 is a child witness who was present in the
house at the time of the incident. She is not a witness to the actual
incident. Her testimony has not been corroborated. Therefore, it is risky
B
to rely on uncorroborated identification of the appellants at her instance.
It is further argued that the evidence of recoveries made under Section
27 of the Indian Evidence Act is also unreliable. The recovery of
motorcycle is also unreliable and that the articles recovered are not
connected to the crime. The testimony of PW-9 is hearsay and cannot
C be relied upon by the prosecution. Even the finger print report cannot be
relied on. Finally, he submits that the evidence of last seen is insufficient
to establish the guilt.
13. On the other hand, Sh. Atul Jha, learned counsel appearing
for the respondent, has supported the judgment of the courts below. He
D prays for dismissal of the appeals.
14. We have carefully considered the submissions of the learned
counsel made at the Bar and perused the materials placed on record.
15. One of the fundamental principles of criminal jurisprudence is
undeniably that the burden of proof squarely rests on the prosecution
E and that the general burden never shifts. There can be no conviction on
the basis of surmises and conjectures or suspicion howsoever grave it
may be. Strong suspicion, strong coincidences and grave doubt cannot
take the place of legal proof. The onus of the prosecution cannot be
discharged by referring to very strong suspicion and existence of highly
suspicious factors to inculpate the accused nor falsity of defence could
F take the place of proof which the prosecution has to establish in order to
succeed, though a false plea by the defence at best, be considered as an
additional circumstance, if other circumstances unfailingly point to the
guilt.
16. This Court in Jaharlal Das v. State of Orissa, (1991) 3 SCC
G 27, has held that even if the offence is a shocking one, the gravity of
offence cannot by itself overweigh as far as legal proof is concerned.
In cases depending highly upon the circumstantial evidence, there is
always a danger that the conjecture or suspicion may take the place of
legal proof. The court has to be watchful and ensure that the conjecture
and suspicion do not take the place of legal proof. The court must
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DIGAMBER VAISHNAV & ANR. v. STATE OF CHHATTISGARH 855
[S. ABDUL NAZEER, J.]
satisfy itself that various circumstances in the chain of evidence should A
be established clearly and that the completed chain must be such as to
rule out a reasonable likelihood of the innocence of the accused. In
order to sustain the conviction on the basis of circumstantial evidence,
the following three conditions must be satisfied:
i.) the circumstances from which an inference of guilt is sought B
to be drawn, must be cogently and firmly established;
ii.) those circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused; and
iii.) the circumstances, taken cumulatively, should form a chain
so complete that there is no escape from the conclusion C
that within all human probability the crime was committed
by the accused and none else, and it should also be incapable
of explanation on any other hypothesis than that of the guilt
of the accused.
17. In Varkey Joseph v. State of Kerala, 1993 Suppl (3) SCC
745, this Court has held that suspicion is not the substitute for proof. D
There is a long distance between ‘may be true’ and ‘must be true’ and
the prosecution has to travel all the way to prove its case beyond
reasonable doubt.
18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this
Court, while examining the distinction between ‘proof beyond reasonable E
doubt’ and ‘suspicion’ has held as under:
“13. Suspicion, however grave it may be, cannot take the place
of proof, and there is a large difference between something that
“may be” proved, and something that “will be proved”. In a criminal
trial, suspicion no matter how strong, cannot and must not be F
permitted to take place of proof. This is for the reason that the
mental distance between “may be” and “must be” is quite large,
and divides vague conjectures from sure conclusions. In a criminal
case, the court has a duty to ensure that mere conjectures or
suspicion do not take the place of legal proof. The large distance
G
between “may be” true and “must be” true, must be covered by
way of clear, cogent and unimpeachable evidence produced by
the prosecution, before an accused is condemned as a 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 H
856 SUPREME COURT REPORTS [2019] 2 S.C.R.
A mere conjectures and sure conclusions to be arrived at, on the
touchstone of dispassionate judicial scrutiny, based upon a complete
and comprehensive appreciation of all features of the case, as
well as the quality and credibility of the evidence brought on record.
The court must ensure, that miscarriage of justice is avoided, and
if the facts and circumstances of a case so demand, then the
B
benefit of doubt must be given to the accused, keeping in mind
that a reasonable doubt is not an imaginary, trivial or a merely
probable doubt, but a fair doubt that is based upon reason and
common sense”.
19. It is also well-settled principle that in criminal cases, if two
C views are possible on evidence adduced in the case, one binding to the
guilt of the accused and the other is to his innocence, the view which is
favourable to the accused, should be adopted. This principle has a special
relevance in cases wherein the guilt of the accused is sought to be
established by circumstantial evidence [See Kali Ram v. State of
D Himachal Pradesh, (1973) 2 SCC 808].
20. Bearing these principles in mind, we shall now consider the
contentions of the learned counsel for the parties. In order to establish
that the accused have committed the offence, the prosecution has relied
on (i) Testimony of child witness Kumari Chandni (PW8); (ii) The
E recoveries made under Section 27 of the Evidence Act; (iii) The fingerprint
report; (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 the
testimony of Chandni, the child witness, who was examined as PW-8.
Section 118 of the Evidence Act governs competence of the persons to
F testify which also includes a child witness. Evidence of the child witness
and its credibility could depend upon the facts and circumstances of
each case. There is no rule of practice that in every case the evidence
of a child witness has to be corroborated by other evidence before a
conviction can be allowed to stand but as a prudence, the court always
G finds it desirable to seek corroboration to such evidence from other reliable
evidence placed on record. Only precaution which the court has to bear
in mind while assessing the evidence of a child witness is that witness
must be a reliable one.
H
DIGAMBER VAISHNAV & ANR. v. STATE OF CHHATTISGARH 857
[S. ABDUL NAZEER, J.]
22. This Court has consistently held that evidence of a child witness A
must be evaluated carefully as the child may be swayed by what others
tell him and he is an easy prey to tutoring. Therefore, the evidence of a
child witness must find adequate corroboration before it can be relied
upon. It is more a rule of practical wisdom than law. [See Panchhi and
others v. State of U.P, (1998) 7 SCC 177, State of U.P. v. Ashok
B
Dixit and another, (2000) 3 SCC 70, and State of Rajasthan v. Om
Prakash, (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 the
testimony of a child with caution after substantial corroboration before
acting upon it. It was held that: C
“36. It is a settled principle of law that a child witness can be a
competent witness provided statement of such witness is reliable,
truthful and is corroborated by other prosecution evidence. The
court in such circumstances can safely rely upon the statement of
a child witness and it can form the basis for conviction as well. D
Further, the evidence of a child witness and credibility thereof
would depend upon the circumstances of each case. The only
precaution which the court should bear in mind while assessing
the evidence of a child witness is that the witness must be a reliable
one and his/her demeanour must be like any other competent E
witness and that there exists no likelihood of being tutored. There
is no rule or practice that in every case the evidence of such a
witness be corroborated by other evidence before a conviction
can be allowed to stand but as a rule of prudence the court always
finds it desirable to seek corroboration to such evidence from
other reliable evidence placed on record. Further, it is not the law F
that if a witness is a child, his evidence shall be rejected, even if it
is found reliable.”
24. It is clear from the testimony of PW-8 that she is not an
eyewitness to the incident. She was aged about 9 years at the time of
the incident. Her evidence is fraught with inconsistencies. None of the G
other witnesses have identified the appellants. Therefore, heavy reliance
was placed on the testimony of PW-8. She did not tell PW-1, Badridas
about the appellants while disclosing about the incident for the first time.
This is reflected from the FIR which has been registered against unknown
persons. In such circumstances, it is risky to rely on the uncorroborated
H
858 SUPREME COURT REPORTS [2019] 2 S.C.R.
A identification of the appellants at the instance of PW-8, who has not
disclosed 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 informed
her that her mother had gone to work. This is in direct contradiction with
the fact that as per the prosecution story, she was lying dead. Chandni
B herself states that in the morning, she saw her grandmother dead. Further,
FIR records Badridas as saying that Chandni told him that Subhadra Bai
is 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 the
deceased at 3 A.M. and had seen the bodies of the deceased and also
C the children. However, PW-8 states that she got up at 7.00 A.M. and
that 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 only
at about 2 to 2.30 P.M. by Chandni. However, PW-8 states that “It is
D correct to suggest that in the morning, I had told Badridas that who had
killed them. I did not know them.”
28. At this stage, it is relevant to notice that there was an unexplained
delay in reporting the crime, as rightly pointed out by the learned senior
counsel for the appellants. PW-8 in her deposition has stated that when
E she woke up in the morning, her room was locked from outside. When
she shouted from inside, wife of Tekram (Anita) opened the door. This
version is further corroborated by PW-10, Dan Bai, who has stated that
in the morning at about 3 a.m. on Monday that Anita had opened the
door of their house from outside. The children were inside the room.
Amrika Bai, Kondi, Subhadra Bai and Shri Bai were lying dead. Though,
F Anita had opened the door at about 3 a.m., it is unexplained why PW-8
did not inform anyone till 4 pm and the same was also unreported by
PW-10, even though the police station was at a distance of some six
kilometers. This also raises question about veracity of the statement of
PW-8, Chandni.
G 29. The second circumstance relied upon by the prosecution is
the evidence of recovery. Under Section 27 of the Indian Evidence Act,
it is not the discovery of every fact that is admissible but the discovery
of relevant fact is alone admissible. Relevancy is nothing but the
connection or the link between the facts discovered with the crime. The
recovery of the motorcycle is sought to be relied upon as a circumstance
H
DIGAMBER VAISHNAV & ANR. v. STATE OF CHHATTISGARH 859
[S. ABDUL NAZEER, J.]
against the appellants. There is nothing on record to show that the A
motorcycle recovered at the instance of appellant No.1, belongs to him.
PW-13, IO, in his cross-examination admits that he does not know
whether the appellant No.1 is the owner of the motorcycle. He further
admits that no attempts were made by him to enquire about the owner
of the vehicle.
B
30. Testimony of PWs 4 and 5 is also unreliable since it contradicts
that of PW-10. As per PW-10, herself and Anita had seen the bodies of
the deceased at 3 a.m. She did not see the assailants and does not mention
anything about the motorcycle. Hence, there is no occasion for the
assailants of the deceased to remain in the house and hence the motorcycle
would not be outside the house of the deceased at 4 p.m. PWs 4 and 5 C
contradict each other. While PW-4 states that the motorcycle was of
Bajaj Company, PW-5 mentions it as a motorcycle from Hero Honda
Company. PW-5 in his examination-in-chief says that he had moved the
motorcycle 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, who D
moved it. PW-5 does not even state the day or month when he saw the
motorcycle.
31. PW-2 was the witness to the seizure of the motorcycle.
According to him, the motorcycle was red in colour. However, as per
the seizure memo, the recovered motorcycle was black in colour. This
makes the recovery of the motorcycle unreliable. It is relevant to state E
that the police recorded the statement of PWs 4 and 5 after delay of
over two months.
32. Coming to the recovered articles, the silver-patti recovered at
the instance of the appellants, is alleged to have been that of the deceased-
Shri Bai. However, no witness identifies the silver-patti as belonging to F
any of the deceased. PW-2 states that “the type of anklet that was
seized” is easily available in the market. Hence, in the absence of any
identification of the seized anklet, no reliance can be placed on its
recovery. The evidence of Rajesh Vaishnav, PW-2, who is the witness
to the seizure memo, is contrary to the memos brought on record. The
G
witness deposes that the statements of the accused were recorded thrice,
i.e. in Gidhauri Chowk, Khapridih and Barbhatha. Moreover, he states
that the seizures from appellant No.2 took place in Kharri village and the
memorandum of procedure took place in the station. This is in direct
contradiction with the seizure memo, which states that seizures have
taken place in Barbhatha. H
860 SUPREME COURT REPORTS [2019] 2 S.C.R.
A 33. The cash has not been traced back to the deceased as the box
from which articles were allegedly stolen has not been recovered or
seen by any witness. Even in the FIR, there is no averment of any
article or money being stolen or lost. Therefore, when the money allegedly
recovered is being sought to be relied upon as stolen from the house of
the deceased, the same is unreliable when there is nothing on record to
B
support 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 the
prosecution and no reasons have been assigned to explain this anomaly.
Considering the conflicting statements of the witnesses examined by the
C prosecution, Anita would be in a position to have seen the appellants at
the house around 3 A.M. She would have been the first person to have
seen the deceased persons and deposed about the circumstances after
the incident. It is also relevant that there were other three children present
in the house at the time of the incident. No attempts have been made to
D examine them as well. Thus, the best evidence which would have been
thrown light on the controversy in question has been withheld.
35. Sohandas, PW-9 has been relied on for corroborating the
testimony of Chandni, the child witness. Reliance has been placed on
her witness to show the presence of the appellants at the house. Sohandas
had deposed only on the basis of a telephone call from Amrika Bai that
E Digamber has come to see Kondi. PW-9 does not know the name of
Ghirdhari. He has referred to a boy accompanying appellant No.1, which
is not sufficient to show the acquaintance. He has not seen the appellants
coming into the house. Therefore, his evidence is not sufficient to place
the appellants at the scene of crime.
F 36. The expert, who examined the articles at the place of
occurrence and found some finger prints, has not been examined. The
person who took the sample finger prints has not been examined. The
finger prints had been lifted on 17.12.2012 whereas the articles were
seized on 18.12.2012. There is no explanation about why the articles
were just left at the scene after developing the finger prints and why
G
they were not seized and sent for analysis on the same day. Further, no
prints have been found on the doors or the steel almirah to substantiate
the robbery. The examination of expert is crucial especially if reliance is
placed 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 was
H “lying near the door of the courtyard was seized.” This makes the
process of the lifting the print suspicious.
DIGAMBER VAISHNAV & ANR. v. STATE OF CHHATTISGARH 861
[S. ABDUL NAZEER, J.]
37. The shirt of appellant No. 2 recovered from him in pursuance A
of his statement under Section 27 of the Evidence Act is allegedly matched
with the small broken button found at the scene of crime. This has been
relied upon by the courts below as another circumstance to corroborate
the presence of the appellants at the scene of crime. However, there is
nothing on record to show that the shirt is unique and cannot be matched
B
with the shirt of any other person. PW-13 has admitted in his testimony
that shirts of the same kind are easily available in the market. In such
circumstances, it cannot be conclusively proved that the shirts are in any
way unique to the ‘appellants’ shirt to the exclusion of everyone else.
Therefore, the reliance placed with analysis of the shirt in the absence
of any unique make thereof is improper. C
38. The forensic evidence against the appellants to prove their
presence at the scene of crime is insufficient. The findings of the hair
analysis are also inconclusive. The report only concluded the specimen
to the human hair. The same is not sufficient to substantiate the presence
of the appellants. D
39. The prosecution has alleged robbery as motive for the
commission of the offence. It is sought to be sustained by the recovery
of some cash and a pair of silver patti that has not been identified by any
witness. The site plan panchanama shows that gold ornaments, pearl
necklace, silver ornaments, etc. were left behind on the person of the
deceased. It is not explained as to why appellants would intend to commit E
robbery but leave expensive ornaments behind. The entire motive of
robbery is negated if these facts are considered as it seems implausible
that persons with an intent to commit robbery would leave without
precious ornaments that were on the person of the deceased. This has
unsubstantiated the entire motive for the commission of the offence, as F
alleged by the prosecution.
40. The prosecution has relied upon the evidence of PW-8 to
show that the accused and victims were last seen together. It is settled
that the circumstance of last seen together cannot by itself form the
basis of holding accused guilty of offence. If there is any credible evidence
G
that just before or immediately prior to the death of the victims, they
were last seen along with the accused at or near about the place of
occurrence, the needle of suspicion would certainly point to the accused
being the culprits and this would be one of the strong factors or
circumstances inculpating them with the alleged crime purported on the
H
862 SUPREME COURT REPORTS [2019] 2 S.C.R.
A victims. However, if the last seen evidence does not inspire the confidence
or is not trust worthy, there can be no conviction. To constitute the last
seen together factor as an incriminating circumstance, there must be
close proximity between the time of seeing and recovery of dead body.
41. In Arjun Marik & Ors. v. State of Bihar, 1994 Supp (2)
B SCC 372, it has been held as under:-
“31. Thus the evidence that the appellant had gone to Sitaram in
the evening of 19-7-1985 and had stated in the night at the house
of deceased Sitaram is very shaky and inconclusive. Even if it is
accepted that they were there it would at best amount to be the
C evidence of the appellants having been seen last together with the
deceased. But it is settled law that the only circumstance of last
seen will not complete the chain of circumstances to record the
finding that it is consistent only with the hypothesis of the guilt of
the accused and, therefore, no conviction on that basis alone can
be 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 lead
to the inference that it was the accused who committed the crime. It is
held thus:
“12. The circumstance of last seen together does not by itself and
E
necessarily lead to the inference that it was the accused who
committed the crime. There must be something more establishing
connectivity between the accused and the crime. Mere non-
explanation on the part of the appellant, in our considered opinion,
by itself cannot lead to proof of guilt against the appellant”.
F 43. PW-8 in her evidence has stated that the accused had come
one day before in the night, and next day, Amrika, Mala, Badi Amma,
Amma and Kondi Didi had died. She is a child witness. We have already
noticed that she has not witnessed the incident. PW-1 in his evidence
says that PW-8 had come to his house at 2.00 to 2.30 P.M. and informed
G him about the death of the deceased persons. PW-8 has not disclosed
the identity of the appellants to PW-1. That is why the FIR was registered
against unknown persons. We have also noticed the inconsistencies in
her evidence apart from the fact that the other children present in the
house on that day were not examined. There is a substantial loss of time
from when PW-8 saw the deceased and the appellants together on
H
DIGAMBER VAISHNAV & ANR. v. STATE OF CHHATTISGARH 863
[S. ABDUL NAZEER, J.]
16.12.2012 and when the deceased were found on 17.12.2012. In such A
circumstances, it is difficult to draw an inference that the appellants had
committed 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 at
Bilaspur dated 30.04.2015 in Criminal Reference No.3 of 2014 and B
Criminal 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 set
aside. The appellants/accused are hereby acquitted for the offences for
which they were tried and they shall be released forthwith, unless required
in any other case/cases. C
Kalpana K. Tripathy Appeals allowed.
D
E
F
G
H
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