HARIVADAN BABUBHAI PATELversusSTATE OF GUJARAT

                    [2013] 10 S.C.R. 889


               HARIVADAN BABUBHAI PATEL                             A
                              v.
                    STATE OF GUJARAT
             (Criminal Appeal No. 1044 of 2010)
                        JULY 01, 2013
                                                                    B
      [DR. B.S. CHAUHAN AND DIPAK MISRA., JJ.]

    Penal Code, 1860:

     ss. 342, 346, 302, 1208 and 201rlw. s. 34 - Prosecution c
under - Of 4 accused persons - Circumstantial evidence -
Conviction of two accused and acquittal of two accused by trial
court - High Court further acquitted another accused and
convicted the appellant-accused - On appeal, held: The
evidence on record are cogent, credible and meet the test of 0
circumstantial evidence - Hence, the appellant-accused rightly
convicted - However, since no other accused has been
convicted, the appellant-accused could not have been
convicted uls. 1208 - Conviction of the appellant confirmed
except u/s. 1208.
                                                                    E
    s. 1208 - Conviction of one accused, while other accused
persons acquitted - Held: Conviction uls. 120 8 cannot be
sustained when the other accused persons are acquitted.

     Evidence - Circumstantial evidence - Failure of accused        F
to give any explanation or giving false answer u/s. 313 Cr. P. C,
can be counted as providing a missing link for building chain
of circumstances.

     Criminal Trial - Non-examination of material witness -
Effect of - Held: Non-examination of a material witness is not G
a mathematical formula for discarding the weight of the
testimony available on record.

                              889
                                                                    H
    890      SUPREME COURT REPORTS            (2013] 10 S.C.R.


A      The appellant-accused (A-1 ), alongwith 3 other
  accused was prosecuted for the offences punishable u/
  ss. 342, 346, 302, 1208 and 201 r/w. s. 34 IPC. Trial court
  acquitted A-3 and A-4 and convicted A-1 and A-2 for all
  the charges. In appeal, High Court acquitted A-2, but
B sustained the conviction of the appellant. Hence the
  present appeal.

          Partly allowing the appeal, the Court

      HELD: 1. The present case does not reveal that the
C absence of spontaneity in the lodgment of the FIR has
  created a coloured version. On the contrary, from the
  other circumstances which lend support to the
  prosecution story, it is difficult to disbelieve and discard
  the prosecution case solely on the ground that the FIR
D was lodged on 25.1.2006 though the deceased was taken
  by the accused persons some time on 23.1.2006. The
  explanation offered pertaining to the search of the
  deceased by the informant has been given credence to
  by the trial Judge as well as by the High Court and,
E adjudging the entire scenario of the prosecution case,'the
  same deserves acceptation. [Para 12] [899-G; 900-A-B]

         State of H.P. vs. Gian Chand (2001) 6 SCC 71: 2001 (3)
    SCR 247; Ramdas and Ors. vs. State of Maharashtra (2007)
F   2 SCC 170; Kilakkatha Parambath Sasi and Ors. vs. State
    of Kera/a AIR 2011 SC 1064: 2011 (2) SCR 540; Kanhaiya
    Lal and Ors. vs. State of Rajasthan 2013 (6) SCALE 242 -
    relied on.

       2. There can be no shadow of doubt that the
G confession part is inadmissible in evidence. It is also not
  in dispute that the panch witnesses have turned hostile.
  But the factum of information related to the discovery of
  the dead body and other articles and the said information
  was within the special knowledge of the present
H appellant. Hence, the doctrine of confirmation by
    HARIVADAN BABUBHAI PATEL v. STATE OF              891
                 GUJARAT

subsequent events is attracted and, therefore, it can be     A
held that recovery or discovery in the present case is a
relevant fact or material which can be relied upon and has
been correctly relied upon. [Paras 13 and 16] [900-D-E;
902-A]
                                                          B
     A.N. Venkatesh and Anr. vs. State of Kamataka (2005)
7 SCC 714; Prakash Chand vs. State (Delhi Admin.) AIR
1979 SC 400: 1979 (2) SCR 330; State of Maharashtra vs.
Damu S/o Gopinath Shinde and Ors. (2000) 6 SCC 269: 2000
(3) SCR 880; State of Maharashtra vs. Suresh (2000) 1 SCC C
471: 1999 (5) Suppl. SCR 215; State of Punjab vs. Gumam
Kaur and Ors. (2009) 11 SCC 225: 2009 (3) SCR 1195; Aftab
Ahmad Anasari vs. State of Uttaranchal (2010) 2 SCC 583:
2010 (1) SCR 1027; Bhagwan Dass vs. State (NCT) of Delhi
AIR 2011 SC 1863: 2011 (6) SCR 330; Manu Sharma vs.
State AIR 2010 SC 2352: 2010 (4) SCR 103; Rumi Bora D
Dutta vs. State of Assam 2013 (7) SCALE 535 - relied on.

     3. It is evident from the material on record that the
deceased was taken away in a Maruti car. The appellant
has been identified by PW-13, and PW-15, and their E
evidence remains totally embedded in all material
particulars. It has been proven by the prosecution that the
Maruti car belonged to the appellant. There has been no
explanation offered by the accused in this regard, though
such incriminating materials were put to him. It is also F
evident from the testimony of PW-16, the doctor who had
conducted the autopsy on 28.1.2006 about 10.00 a.m.,
that the injuries found on the dead body were
approximately four days old. Thus, the plea of long gap
between the last seen and the time of death melts into G
insignificance inasmuch as the time the deceased was
seen in the company of A-1 and the time of death was not
long and the said fact has been duly established by the
medical evidence and there is no reason to discredit the
same. From the testimony of PW-14, wife of the deceased H
    892     SUPREME COURT REPORTS           [2013] 10 S.C.R.


A   also, it is evincible that she had talked on telephone to
    both the accused persons. Thus, the circumstance
    pertaining to the theory of last seen deserves
    acceptance. [Para 17] [902-D-H; 903-A]
       4.1. Non-examination of a material witness is not a
B
  mathematical formula for discarding the weight of the
  testimony available on record, howsoever natural,
  trustworthy and convincing it may be. The charge of
  withholding a material witness from the court leveled
C against the prosecution should be examined in the
  background of the facts and circumstances of each case
  so as to find whether the witnesses are available for being
  examined in the court and were yet withheld by the
  prosecution. The court is required first to assess the
  trustworthiness of the evidence available on record and
D if the court finds the evidence adduced worthy of being
  relied on, then the testimony has to be accepted and
  acted upon though there may be other witnesses
  available who could also have been examined but were
  not examined. [Para 18] [903-D-F]
E
       4.2. In the present case, it was A-1 who had
  announced that he was taking the deceased to the house
  of 'G'. On a search being conducted, nothing has been
  found from the house of 'G'. There has been no cross-
  examination of the Investigating Officer about the non-
F
  examination of 'G'. On the contrary, it was A-1 who had
  led to the discovery of the dead body and other articles.
  Thus, when the other evidence on record are cogent,
  credible and meet the test of circumstantial evidence,
  there is no justification to come to hold that the
G prosecution has deliberately withheld a witness that
  creates a concavity in the concept of fair trial. [Para 21]
  [905-B-D]
       State of H.P. vs. Gian Chand (2001) 6 SCC 71: 2001 (3)
H   SCR 247; Takhaji Hiraji vs. Thakore Kubersing Chamansing
    HARIVADAN BABUBHAI PATEL v. STATE OF               893
                 GUJARAT

and Ors. (2001) 6 SCC 145; Dahari and Ors. vs. State of Uttar A
Pradesh (2012) 10 SCC 256: 2012 (8) SCR 1219; Sharad
Birdhichand Sarda vs. State of Mararashtra (1984) 4 SCC
116: 1985 (1) SCR 88; State vs. Saravanan (2008) 17 SCC
587: 2008 (14) SCR 405; Sunil Kumar Sambhudayal Gupta
vs. State of Maharashtra (201.0) 13 SCC 657: 2010 (15) SCR B
452; Jagroop Singh vs. State of Punjab (2012) 11 SCC 768
- relied on.

     5. Though all the incriminating circumstances which
point to the guilt of the accused had been put to him, yet C
he chose not to give any explanation under Section 313
CrPC except choosing the mode of denial. It is well settled
in law that when the attention of the accused is drawn to
the said circumstances that inculpated him in the crime
and he fails to offer appropriate explanation or gives a
false answer, the same can be counted as providing a D
missing link for building the chain of circumstances. [Para
22] [905-E-F]
   Maharashtra vs. Suresh (2000) 1 SCC 471: 1999 (5)
Suppl. SCR 215 - relied on.                          E

     6. The appellant-accused cannot be acquitted on
parity with A-2. The High Court has taken note of the fact
that A-2 was not identified by any one in the test
identification parade. It has also noticed number of
material contradictions and omissions and, accordingly, F
acquitted A-2. So far as the appellant is concerned, all the
circumstances lead towards his guilt. [Para 23] [906-8-C]

    7. So far as conspiracy under Section 1208 IPC is
concerned, the High Court erred in not recording an order G
of acquittal under Section 1208 IPC as no other accused
had been found guilty. The conviction under Section
1208 IPC cannot be sustained when the other accused
persons have been acquitted, for an offence of
conspiracy cannot survive if there is acquittal of the other H
    894      SUPREME COURT REPORTS              [2013] 10 S.C.R.


A   alleged co-conspirators. Thus, the conviction of the
    appellant under Section 1208 is set aside. [Para 23) [906-
    D-E]

       Fakhruddin vs. The State of Madhya Pradesh AIR 1967
B
    SC 1326 - relied on.
                        Case Law Reference:
          2001 (3) SCR 247          relied on        Paras 9, 18
          (2001) 2 sec 110          relied on        Para 10
c         2011 (2) SCR 540          relied on        Para 11
          2013 (6) SCALE 242        relied on        Para 11
          (2005) 1 sec 714          relied on        Para 13
          1979 (2) SCR 330          relied on        Para 13
D
          2000 (3) SCR 880          relied on        Para 14
          1999 (5) Suppl. SCR 215   relied on        Para 15
          2009 (3) SCR 1195         relied on        Para 15
E         2010 (1) SCR 1027         relied on        Para 15
          2011 (6) SCR 330          relied on        Para 15
          2010 (4) SCR 103          relied on        Para 15
          2013 (7) SCALE 535        relied on        Para 15
F
          (2001 > 6 sec 145         relied on        Para 19
          2012 (8) SCR 1219         relied on        Para 20
          1985 (1) SCR 88           relied on        Para 21
G         2008 (14) SCR 405         relied on        Para 21
          2010 (15) SCR 452         relied on        Para 21
          (2012) 11 sec 768         relied on        Para 21
          1999 (5) Suppl. SCR 215   relied on        Para 22
H
     HARIVADAN BABUBHAI PATEL v. STATE OF                   895
                  GUJARAT

    AIR 1967 SC 1326                relied on       Para 23         A

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1044 of 2010.

    From the Judgment and Order dated 20.04.2009 of the
High Court of Gujarat at Ahmadabad in Criminal Appeal No.           B
860 of 2007.

    Rauf Rahim, Abhijit P. Medh, Brajesh Kumar for the
Appellant.

     Hemantika Wahi for the Respondent.
                                                                    c
    The Judgment of the Court was delivered by

      DIPAK MISRA, J. 1. The appellant, A-1, along with
Dipakbhai Zinabhai Patel, A-2, Raghubhai Chaganbhai Patel,          o
A-3, and Babubhai Khushalbhai Patel, A-4, faced trial in
Sessions Case No. 28 of 2006 in the Court of the learned
Sessions Judge, Valsad, for the offences punishable under
Sections 342, 346, 302, 1208 and 201 read with Section 34
of the Indian Penal Code (for short "IPC"). The learned trial       E
Judge acquitted A-3 and A-4 as he found them innocent and
convicted A-1 and A-2 for all the offences and imposed rigorous
imprisonment for life and fine of Rs.1,000, in default of payment
of fine, to undergo further imprisonment for one month under
Section 302 and separate sentences for the other offences with
                                                                    F
the stipulation that all the sentences shall run concurrently.

     2. Grieved by the aforesaid conviction and sentence, the
accused-appellant and A-2 preferred Criminal Appeal No. 860
of 2007 and the High Court, by the impugned judgment dated
20th April, 2009, acquitted A-2 but sustained the conviction of     G
the appellant for all the offences. Hence, the present appeal by
the accused-appellant, A-1.

     3. Filtering the unnecessary details, the prosecution case
is that on 23.1.2006, deceased, Ashokbhai Nanubhai,                 H
    896     SUPREME COURT REPORTS               [2013] 10 S.C.R.


A  accompanied by his brother-in-law, Kantibhai Manila! Patel,
   PW-13, had gone to Udwada R.S. Zanda Chowk on his scooter
   and went to a tea stall where the deceased was engaged in a
    conversation with one Durlabhbhai Kikubhai Bhandari,PW-15.
   Durlabhbhai took the deceased near the railway crossing where
B 3-4 persons were waiting in a Maruti car. As the prosecution
   story further gets unfurled, the deceased had discussion with
   them and, thereafter, those persons informed that they would
   take the deceased to the house of Gulia at Valsad and,
   accordingly, they took him in the Maruti car bearing No. GJ-15-
C K-9263. They had provided one mobile number stating that if
   there would be any delay in the return of the deceased, they
   could be contacted on that mobile number. The brother-in-law
   of the deceased supplied that mobile number to his sister
   Madhuben, PW-14, and went to Daman for his work and came
0 back in the evening about 5.00 p.m. Thereafter, he enquired
   from his sister whether she had talked with the deceased on
   the giveo number or not and he was informed by her that the
   mobile phone was picked up by different persons who spoke
   differently and, at a later stage, it was switched off. Someone
   speaking on the mobile had also enquired from Madhuben
E whether she had gone to the police station. Coming to know
   about the situation, Kantibhai made enquiry and searched
 · about the deceased for two days and when the deceased did
   not return, he lodged a complaint at Pardi Police Station on
   25.1.2006 which was registered as C.R. No. 1-12/2006. After
F the criminal law was set in motion, the investigating agency
   examined the witnesses and after coming to know about the
   place where the accused persons had hidden themselves, the
   Investigating Officer arrested them and they confessed before
   the police that they had wrongfully confined the deceased and
G assaulted him. They also confessed that they had pressurized
   the deceased for returning the money as the money was paid
   to the passport agent, namely, Bharatbhai, who was introduced
   by the deceased, in the presence of one Ashokbhai alias
   Amratbhai. They also stated that they had assaulted the
H deceased on 23.1.2006 and when the deceased succumbed
    HARIVADAN BABUBHAI PATEL v. STATE OF                    897
          GUJARAT [DIPAK MISRA, J.]

to the injuries, they buried the dead body in an agricultural farm. A
At the instance of the accused, the dead body of the deceased
was taken out in the presence of the panch witnesses.
Discovery panchnama was prepared in presence of the
Executive Magistrate. After carrying out the seizure of footwear,
clothes and jute old blanket, samples of the same were sent B
for forensic examination and thereafter, the dead body, after
being identified by wife Madhuben, was initially sent to the
Dungri Primary Health Centre for post mortem, but as the
Medical Officer opined that it was to be done by a forensic
expert, it was sent to Surat Civil Hospital Forensic Department. c
The identification of the accused persons was carried out by
the Executive Magistrate. The Maruti car which was used for
the offence was taken into possession. The investigating
agency examined number of witnesses and, after completing
the investigation, placed ttie charge-sheet before the competent
                                                                    0
court for all the offences in respect of A-1 to A-3 and as far as
A-4 was concerned, he was charge-sheeted for the offence
punishable under Section 201 IPC.

     4. The accused persons pleaded innocence and false
implication and claimed to be tried.                               E

     5. The prosecution, in support of its case, examined 19
witnesses and got number of documents including the FIR,
discovery panchnama, panchnama of the seized articles, the
FSL report and the serology report and panchnama of the test       F
identification parade, exhibited. In the statement under Section
313 CrPC, the accused persons made a bald denial of every
aspect and did not offer any explanation and chose not to
adduce any evidence.

    6. The learned trial Judge, on the basis of the material       G
brought on record, found A-1 and A-2 guilty of all the offences
and the High Court affirmed the conviction and sentence in
respect of A-1 only as stated hereinbefore.

                                                                   H
    898      SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A       7. We have heard Mr. Rauf Rahim, learned counsel for the
    appellant and Ms. Hemantika Wahi, learned counsel for the
    respondent-State.

       8. It is the undisputed position that the death was
  homicidal in nature and the case of the prosecution rests on
8
  the circumstantial evidence. Learned counsel for the appellant
  has assiduously endeavoured to point out certain loopholes and
  contended that because of the said dents, the prosecution
  version deserves to be discarded. Per contra, I.earned counsel
C for the respondent would support the analysis made in the
  judgment of the High Court and stand for its sustenance.

       9. We shall deal with the challenges and the stance in
  oppugnation one by one. The first ground of attack is that there
  is delay in lodging of the FIR and in the absence of explanation,
D the sase of the prosecution should be thrown overboard. On a
  perusal of the judgments, it is noticeable that the said aspect
  has been dealt with in great detail and the plea of delay has
  been negatived. It is urged before us that though the
  occurrence, as alleged, had taken place on 23.1.2006, yet the
E FIR was lodged only on 25.1.2006 indicating that efforts were
  being made to search for the deceased and the said effort is
  based on some kind of surmises which do not inspire
  confidence. On a close scrutiny, it is evident that as per the FIR
  and the evidence of the informant, PW-13, and Madhuben, PW-
F 14, they had searched for the deceased and realizing that it
  was an exercise in futility, they went to the police station. It has
  been deposed by them that they had never apprehended that
  the deceased would be done to death though there was a
  previous quarrel pertaining to demand of money from the
G deceased as he had introduced the passport agent to A-1 who
  had paid more than rupees one lakh to obtain the necessary
  documents to go to United States of America. It has been
  clearly proven that the informant was engaged in search and
  he had not apprehended that the life spark of the deceased
  would be extinct. The issue is whether such an explanation is
H
      HARIVADAN BABUBHAI PATEL v. STATE OF                   899
            GUJARAT [DIPAK MISRA, J.]

to be believed. In this context, we may refer with profit to the     A
authority in State of H.P. v. Gian Chand1 wherein a three-Judge
Bench has opined that the delay in lodging the FIR cannot be
used as a ritualistic formula for doubting the prosecution case
and discarding the same solely on the ground of delay. If the
explanation offered is satisfactory and there is no possibility of   B
embellishment, the delay should not be treated as fatal to the
case of the prosecution.

      1O. In Ramdas and others v. State of Maharashtra 2, it has
been ruled that when an FIR is lodged belatedly, it is a relevant    C
fact of which the court must take notice of, but the said fact has
to be considered in the light of other facts and circumstances
of the case. It is obligatory on the part of the court to consider
whether the delay in lodging the report adversely affects the
case of the prosecution and it would depend upon the matter
of appreciation of evidence in totality.                             D

        11. In Kilakkatha Parambath Sasi and others v. State of
Kera/a 3, it has been laid down that when an FIR has been
lodged in a belated manner, inference can rightly follow that the
prosecution story may not be true but equally on the other side, E
if it is found that there is no delay in the recording of the FIR, it
does not meari that the prosecution story stands immeasurably
strengthened. Similar view has also been expressed in
Kanhaiya Lal and others v. State of Rajasthan4.

     12. Scrutinized on the anvil of the aforesaid enunciation F
of law, we are disposed to think that there had been no
embellishment in the FIR and, in fact, there could not have been
any possibility of embellishment. As we find, the case at hand
does not reveal that the absence of spontaneity in the lodgment
of the FIR has created a coloured version. On the contrary, from G

1.   c2001) a sec 11.
2.   c2007) sec 110.
3.   AIR 2011 SC 1064.
4.   2013 (6) SCALE 242.                                             H
    900        SUPREME COURT REPORTS               [2013] 10 S.C.R.


A   the other circumstances which lend support to the prosecution
    story, it is difficult to disbelieve and discard the prosecution
    case solely on the ground that the FIR was lodged on 25.1.2006
    though the deceased was taken by the accused persons some
    time on 23.1.2006. The explanation offered pertaining to the
B   search of the deceased by the informant has been given
    credence to by the learned trial Judge as well as by the High
    Court and, in our considered opinion, adjudging the entire
    scenario of the prosecution case, the same deserves
    acceptation. Hence, the said submission is sans substance.
c         13. The next limb of attack relates to the confessions
    made by the accused persons and the issue of leading to
    discovery of articles. It is submitted that the confession part is
    absolutely inadmissible and that apart, when the panch
    witnesses had not supported the panchnama, the recovery or
D   discovery of the seized articles cannot be utilized against the
    appellant. There can be no shadow of doubt that the confession
    part is inadmissible in evidence. It is also not in dispute that
    the panch witnesses have turned hostile but the facts remains
    that the place from where the dead body of the deceased and
E   other items were recovered was within the special knowledge
    of the appellant. In this context, we may usefully refer to A.N.
    Venkatesh and another v. State of Kamataka 5 wherein it has
    been ruled that by virtue of Section 8 of the Evidence Act, the
    conduct of the accused person is relevant, if such conduct
F   influences or is influenced by any fact in issue or relevant fact.
    The evidence of the circumstance, simpliciter, that the accused
    pointed out to the police officer the place where the dead body
    of the kidnapped person was found would be admissible as
    conduct under Section 8 irrespective of the fact whether the
G   statement made by the accused contemporaneously with or
    antecedent to such conduct falls within the purview of Section
    27 of the Evidence Act or not. In the said decision, reliance was
    placed on the principle laid down in Prakash Chand v. State

H   5.   c2005) 1 sec 714.
     HARIVADAN BABUBHAI PATEL v. STATE OF                    901
           GUJARAT [DIPAK MISRA, J.]

(Delhi Admin.) 6• It is worth noting that in the said case, there   A
was material on record that the accused had taken the
Investigating Officer to the spot and pointed out the place where
the dead body was buried and this Court treated the same as
admissible piece of evidence under Section 8 as the conduct
of the accused.                                                     B

    14. In State of Maharashtra v. Damu S/o Gopinath Shinde
and others7, it has been held as follows: -

     "It is now well settled that recovery of an object is not
     discovery of a fact as envisaged in the section. The           C
     decision of the Privy Council in Pu/ukuri Kottaya v.
     Emperor8 is the most quoted authority for supporting the
     interpretation that the "fact discovered" envisaged in the
     section embraces the place from which the object was
     produced, the knowledge of the accused as to it, but the       D
     information given must relate distinctly to that effect."

     15. Same principle has been laid down in State of
Maharashtra v. Suresh 9, State of Punjab v. Gumam Kaur and
others 10, Aftab Ahmad Anasari v. State of Uttarancha/ 11 ,
                                                                    E
Bhagwan Dass v. State (NCT) of Delhi1 2, Manu Sharma v.
State 13 and Rumi Bora Dutta v. State of Assam 14•

     16. In the case at hand, the factum of information related
to the discovery of the dead body and other articles and the
said information was within the special knowledge of the            F
6. AIR 1979 SC 400.
7. (2000} 6 SC 269.
8., AIR 1947 PC 67.
9. c2000} 1 sec 411.                                                G
10. (2009} 11 sec 225.
11. (2010} 2 sec 583.
12. AIR 2011SC1863.
13. AIR 2010 SC 2352.
14. Crl. A. 737 of 2006 decided on 24.05.2013.                      H
    902      SUPREME COURT REPORTS                [2013] 10 S.C.R.


A present appellant. Hence, the doctrine of confirmation by
  subsequent events is attracted and, therefore, we have no
  hesitation in holding that recovery or discovery in the case at
  hand is a relevant fact or material which can be relied upon and
  has been correctly relied upon.
B
            17. The next circumstance that has been seriously
     criticized by Mr. Rauf Rahim, learned counsel for the appellant,
     pertains to the last seen theory. It is submitted by him that as
     per the testimony of the· informant, the appellant along with
C   others had taken the deceased in a Maruti car, but there is no
    material evidence to suggest that the accused was in the
     company of the deceased for two days. The learned counsel
    would further submit that the last seen theory faces a hazard
    because of the time gap and, hence, should be totally
    discarded. It is evident from the material on record that the
D   deceased was taken away from Zanda Chowk in a Maruti car.
    The appellant has been identified by Kantibhai, PW-13, and
    Durlabhbhai, PW-15, and their evidence remains totally
    embedded in all material particulars. It has been proven by the
    prosecution that the Maruti Zen car belongs to the appellant.
E   There has been no explanation offered by the accused in this
    regard, though such incriminating materials were put to him. It
    is also worth noting here that from the testimony of Dr. Pandav
    Vinodchandra Prajapati, PW-16, who had conducted the
    autopsy on 28.1.2006 about 10.00 a.m., t~at the injuries found
F   on the dead body were approximately fou~ days old. Thus, the
    argument that there is long gap between the last seen and the
    time of death melts into insignificance inasmuch as the time
    the deceased was seen in the company of A-1 and the time of
    death is not long and the said fact has been duly established
G   by the medical evidence and we .see no reason to discredit the
    same. It is apt to note here that A-1 had said that they were
    taking the deceased to the house of Gulia but during
    investigation, nothing was found in the house of Gulia. On the.
    contrary, from the testimony of Madhuben, PW-14, wife of the
H   deceased, it is evincible that she had talked on telephone to
     HARIVADAN BABUBHAI PATEL v. STATE OF                    903
           GUJARAT [DIPAK MISRA, J.]

both the accused persons. Thus, the circumstance pertaining         A
to the theory of last seen deserves acceptance.

     18. The next plank of submission is that Gulia to whose
house the deceased was taken to has not been examined by
the prosecution and non-examination of such a material witness
                                                                  8
makes the whole case of the prosecution unacceptable. The
learned trial Judge, dealing with the said contention, has opined
that during the test identification parade, Shaikh Gulamhusssain
had not identified the accused persons and that is the reason
the prosecution was of the view that the said witness would not C
support the case of the complainant and, accordingly, chose
not to examine him. In State of H.P. v. Gian Chand (supra), it
has been opined that non-examination of a material witness is
not a mathematical formula for discarding the weight of the
testimony available on record, howsoever natural, trustworthy
and convincing it may be. The charge of withholding a material D
witness from the court leveled against the prosecution should
be examined in the background of the facts and circumstances
of each case so as to find whether the witnesses are available
for being examined in the court and were yet withheld by the
prosecution. The three-Judge Bench further proceeded to E
observe that the court is required first to assess the
trustworthiness of the evidence available on record and if the
court finds the evidence adduced worthy of being relied on, then
the testimony has to be accepted and acted upon though there
may be other witnesses available who could also have been F
examined but were not examined.

     19. In Takhaji Hiraji v. Thakore Kubersing Chamansing
and others 15, the Court has opined thus: -

     "It is true that if a material witness, who would unfold the   G
     genesis of the incident or an essential part of the
     prosecution case, not convincingly brought to fore
     otherwise, or where there is a gap or infirmity in the

1s. c2001) a sec 145.                                               H
    904       SUPREME COURT REPORTS               [2013] 10 S.C.R.


A         prosecution case which could have been supplied or made
          good by examining a witness who though available is not
          examined, the prosecution case can be termed as
          suffering from a deficiency and withholding of such a
          material witness would oblige the court to draw an adverse
B         inference against the prosecution by holding that if the
          witness would have been examined it would not have
          supported the prosecution case. On the other hand if
          already overwhelming evidence is available and
          examination of other witnesses would only be a repetition
c         or duplication of the evidence already adduced, non-
          examination of such other witnesses may not be material.
          In such a case the court ought to scrutinise the worth of
          the evidence adduced. The court of facts must ask itself -
          whether in the facts and circumstances of the case, it was
D         necessary to examine such other witness, and if so,
          whether such witness was available to be examined and
          yet was being withheld from the court. If the answer be
          positive then only a question of drawing an adverse
          inference may arise. If the witnesses already examined are
          reliable and the testimony coming from their mouth is
E
          unimpeachable the court can safely act upon it,
          uninfluenced by the factum of non-examination of other
          witnesses."

       20. In Dahari and others v. State of Uttar Pradesh 16, while
F discussing about the non-examination of material witness, the
  Court expressed the view that when he was not the only
  competent witness who would have been fully capable of
  explaining the factual situation correctly and the prosecution
  case stood fully corroborated by the medical evidence and
G thetestimony of other reliable witnesses, no adverse inference
  could be drawn against the prosecution. Be it noted, the Court
  also took note of the fact that during the cross-examination of
  the Investigating Officer, none of the accused persons had

H   16. (2012) 10 sec 256.
     HARIVADAN BABUBHAI PATEL v. STATE OF                     905
           GUJARAT [DIPAK MISRA, J.]

voiced their concerns or raised any apprehension regarding the        A
non-examination of the material witness therein.

     21. In the case at hand, it was A-1 who had announced
that he was taking the deceased to the house of Gulia. On a
search being conducted, nothing has been found from the
                                                                 8
house of Gulia. There has been no cross-examination of the
Investigating Officer about the non-examination of Gulia. On the
contrary, it was A-1 who had led to the discovery of the dead
body and other articles. Thus, when the other evidence on
record are cogent, credible and meet the test of circumstantial C
evidence laid down in Sharad Birdhichand Sarda v. State of
Mararashtra 17 State v. Saravanan 18, Suni/ Kumar
Sambhudayal Gupta v. State of Maharashtra 19 and further
reiterated in Jagroop Singh v. State of Punjab 20, there is no
justification to come to hold ~hat the prosecution has deliberately
withheld a witness that creates a concavity in the concept of         D
fair trial.

      22. Another facet is required to be addressed to. Though
all the incriminating circumstances which point to the guilt of
the accused had been put to him, yet he chose not to give any         E
explanation under Section 313 CrPC except choosing the
mode of denial. It is well settled in law that when the attention
of the accused is drawn to the said circumstances that
inculpated him in the crime and he fails to offer appropriate
explanation or gives a false answer, the same can be counted          F
as providing a missing link for building the chain of
circumstances. (See State of Maharashtra v. Suresh21 }. In the
case at hand, though number of circumstances were put to the
accused, yet he has made a bald denial and did not offer any
                                                                      G
11. (1984) 4 sec 116.
18. c2008) 11 sec 587.
19. c2010) 13 sec 657.
20. c2012) 11 sec 768.
21. c2000) 1 sec 471.                                                 H
    906       SUPREME COURT REPORTS                 [2013) 10 S.C.R.


A   explanation whatsoever. Thus, it is also a circumstance that
    goes against him.

          23. We will be failing in our duty if we do not note another
    submission of the learned counsel for the appellant. It is urged
8   by him that A-2 stood on the same footing as the appellant and
    hence, the High Court should have acquitted him. It is also
    canvassed by him that A"2 has been acquitted of the charge
    of criminal conspiracy and, therefore, the appellant deserves
    to be acquitted. The High Court has taken note of the fact that
C   A-2 was not identified by any one in the test identification
    parade. It has also noticed number of material contradictions
    and omissions and, accordingly, acquitted A-2. As far as the
    appellant is concerned, all the circumstances lead towards his
    guilt. As far as conspiracy under Section 1208 is concerned,
    we are inclined to think that the High Court erred in not recording
D   an order of acquittal under Section 1208 as no other accused
    had been found guilty. The conviction under Section 1208
    cannot be sustained when the other accused persons have
    been acquitted, for an offence of conspiracy cannot survive if
    there is acquittal of the other alleged co-conspirators. It has
E   been so laid down in Fakhruddin v. The State of Madhya
    Pradesh 22 • Thus, the conviction of the appellant under Section
    1208 is set aside.

         24. Resultantly, the appeal fails except for the acquittal for
F   the offence of conspiracy. However, as we have sustained the
    conviction under Section 302 IPC and all the sentences are
    directed to be concurrent, the acquittal for the offence
    punishable under Section 1208 would not help the appellant.
    Therefore, the appeal stands dismissed, but the conviction and
G   sentence under Section 1208 IPC is set aside. The other
    convictions and sentences will stand.

    K.K.T.                                    Appeal partly allowed.


H   22. AIR 1967 SC 1326.