NAVANEETHAKRISHNANversusTHE STATE BY INSPECTOR OF POLICE

                          [2018] 6 S.C.R. 749                            749


                   NAVANEETHAKRISHNAN                                    A
                                  v.
            THE STATE BY INSPECTOR OF POLICE
                 (Criminal Appeal No.1134 of 2013)
                          APRIL 16, 2018                                 B
           [A. K. SIKRI AND R. K. AGRAWAL, JJ.]
       Penal Code, 1860 – s.302 r/w. s.34, ss.364 and 379 –
Conviction based on circumstantial evidence – FIR registered by
PW-8 stating that ‘J’ employed as driver in his travel agency along
                                                                         C
with another person took his van and did not return for two days –
Next day a body was found in a well which was identified to be of
‘J’ – Prosecution case was that A-1 confessed about
committing the crime along with appellants (A-2 and A-3) stating
that they abducted driver and his friend, and caused death by
strangulating them and thereafter drowned their bodies in water          D
streams – A-1 also took the investigating officer to the place where
body of ‘J’s friend was found in a gunny bag – Further, PW-11 had
last seen the appellants- accused with the deceased – Trial Court
convicted all the accused persons – Appeals dismissed by the High
Court – On appeal, held: There was no witness of the occurrence –
                                                                         E
The pivotal evidence was the testimony of PW-11 who stated to have
last seen the appellants-accused with the deceased – However, this
evidence alone would not discharge the burden of establishing the
guilt of accused beyond reasonable doubt and required
corroboration – Material objects recovered did not have any
bearing on the case itself and no evidence was adduced or                F
produced by the prosecution as to how these objects had a bearing
on the case – In fact, none of the witnesses had identified the stated
belongings of deceased- ‘J’ – Further, confession of A-1 given to
the police officer while in police custody would be hit by s.26 of the
Evidence Act – Hence, in absence of any other material evidence
                                                                         G
against the appellants-accused, case for interference with order of
conviction is made out – Evidence Act, 1872 – ss.26 and 27.
     Criminal Law: Circumstantial evidence – Last seen theory –
Presumption of guilt – Burden to rebut on accused.
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                                 749
750            SUPREME COURT REPORTS                        [2018] 6 S.C.R.


A           Allowing the appeals, the Court
            HELD: 1. The testimony of PW-11 is established and
      inspires full confidence, it is well established that it is the accused
      who were last seen with the deceased specially in the
      circumstances when there is nothing on record to show that they
B     parted from the accused and since then no activity of the deceased
      can be traced and their dead bodies were recovered later on. It
      is a settled legal position that the law presumes that it is the
      person, who was last seen with the deceased, would have killed
      the deceased and the burden to rebut the same lies on the accused
      to prove that they had departed. Undoubtedly, the last seen theory
C     is an important event in the chain of circumstances that would
      completely establish and/or could point to the guilt of the accused
      with some certainty. However, this evidence alone can’t discharge
      the burden of establishing the guilt of accused beyond reasonable
      doubt and requires corroboration. [Para 18] [758-D-F]
D           2. Section 27 of the Evidence Act is applicable only if the
      confessional statement leads to the discovery of some new fact.
      The relevance is limited as relates distinctly to the fact thereby
      discovered. In the case at hand, the Camera which was recovered
      at the instance of Accused No. 3 was not identified by the father
E     as well as the mother of the deceased. In fact, the prosecution is
      unable to prove that the said camera actually belongs to the
      deceased. Though the mobile phone is recovered from A-1, but
      there is no evidence on record establishing the fact that the cell
      phone belongs to the deceased or to PW-8 as the same was not
      purchased in their name. Further, the prosecution failed to
F     examine the person on whose name the cell phone was purchased
      to show that it originally belongs to PW-8 to prove the theory of
      PW-8 that he had purchased and given it to the deceased. Further,
      the material objects, viz., phone and Motor Bike do not have any
      bearing on the case itself. The phone was recovered from
G     Accused No. 1 and it is not the case that it was used for the
      commission of crime and similarly the motor cycle so recovered
      was of the father of Accused No. 3 and no evidence has been
      adduced or produced by the prosecution as to how these objects
      have a bearing on the case. In fact, none of the witnesses have
      identified the camera or stated the belongings of deceased driver.
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  NAVANEETHAKRISHNAN v. THE STATE BY INSPECTOR                        751
                  OF POLICE

The said statements are inadmissible in spite of the mandate          A
contained in Section 27 for the simple reason that it cannot be
stated to have resulted in the discovery of some new fact. The
material objects which the police is claimed to have recovered
from the accused may well have been planted by the police. Hence,
in the absence of any connecting link between the crime and the
                                                                      B
things recovered, there recovery on the behest of accused will
not have any material bearing on the facts of the case. [Para 22]
[760-H; 761-A-E]
       3. The law is well settled that each and every incriminating
circumstance must be clearly established by reliable and clinching
evidence and the circumstances so proved must form a chain of         C
events from which the only irresistible conclusion about the guilt
of the accused can be safely drawn and no other hypothesis against
the guilt is possible. When the important link goes, the chain of
circumstances gets snapped and the other circumstances cannot,
in any manner, establish the guilt of the accused beyond all          D
reasonable doubt. [Para 23] [761-F-G]
      4. The courts below have erred in relying that part of the
statement which can be termed as confession which were given
to the police officer while they were in custody and it will be hit
by Section 26 of the Indian Evidence Act,1872 and only that part
                                                                      E
of the statement which led to the discovery of various materials
would be permissible. Hence, in the absence of any other material
evidence against the appellants-accused, they cannot be convicted
solely on the basis of evidence of last seen together with the
deceased. [Para 24] [762-D]
      Padala Veera Reddy v. State of Andhra Pradesh and               F
      Others (1989) 2 Suppl. SCC 706 ; Rafikul Alam & Others
      v. The State of West Bengal 2008 Crl. L.J. 2005 ; Selvi
      and Others v. State of Karnataka (2010) 7 SCC 263 :
      [2010] 5 SCR 381 ; Madhu v. State of Kerala (2012) 2
      SCC 399 : [2012] 2 SCR 986 – referred to.                       G
                       Case Law Reference
      (1989) 2 Suppl. SCC 706      referred to       Para 14
      (2008) Crl. L.J. 2005         referred to      Para 17
      [2010] 5 SCR 381              referred to       Para 19
      [2012] 2 SCR 986              referred to      Para 21          H
752            SUPREME COURT REPORTS                          [2018] 6 S.C.R.


A           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 1134 of 2013.
            From the Judgment and Order dated 23.11.2009 of the High Court
      of Judicature at Madras in Criminal Appeal No. 688 of 2009.
                                       WITH
B
            Criminal Appeal Nos. 1135-1136 and 1137 of 2013.
           K. K. Mani, Ms. T. Archana, Mayur R. Shah, Venkatesawar Rao
      Anumolu, K. K. S. Krishnaraj, Prabhakar Parnam, P. Madhusudhan
      Reddy, N. Rajaraman, Jayanth Muth Raj, Ms. Y. Arunagiri,
C     S. Gowthaman, Advs. for the Appellant.
            M. Yogesh Kanna, Ms. Nithya, R. V. Kameshwaran, Advs. for
      the Respondent.
            The Judgment of the Court was delivered by
             R. K. AGRAWAL, J. 1. The above appeals are directed against
D
      the common judgment and order dated 23.11.2009 passed by the High
      Court of Judicature at Madras in Criminal Appeal Nos. 639 and 688 of
      2009 whereby the Division Bench of the High Court dismissed the appeals
      filed by the appellants herein against the order dated 18.09.2009 passed
      by the Fast Track Court No. II, Salem, in Sessions Case No. 21 of 2009
E     wherein learned Additional District & Sessions Judge convicted the
      appellants herein under Sections 302 read with Section 34, Section 364
      and Section 379 of the Indian Penal Code, 1860 (in short ‘the IPC’) and
      sentenced to undergo imprisonment for life with substantive sentences
      under the IPC.
F           2. Brief facts:
             (a) A First Information Report (FIR) bearing No. 41 of 2008 at
      PS Yercaud, District Salem dated 16.02.2008 got registered by
      Mahimaidoss (PW-8) stating that on 14.02.2008, John Bosco (since
      deceased), who was employed as the driver in his travel agency, along
G     with one Madhan (since deceased), took a Maruti Van from him but did
      not return for two days.
             (b) On the very next date, i.e., on 17.02.2008, one more FIR got
      registered by one Asokan bearing No. 88 of 2008 stating that when he
      went to irrigate his fields, he found a white colour sack floating in the
H     well. He immediately informed the same to the local police and when
  NAVANEETHAKRISHNAN v. THE STATE BY INSPECTOR                              753
           OF POLICE [R. K. AGRAWAL, J.]

the sack was opened, a male body with hands tied at the back was            A
found.
       (c) On the basis of FIR dated 16.02.2008, Crime No. 41 of 2008
was registered at Yercaud Police Station and during the pendency of
investigation, FIR No. 88 of 2008 got registered and a body was found
which was identified as of John Bosco.                                      B
      (d) During investigation, Sivashankar (A-1 therein) was
apprehended and he confessed about committing the crime along with
(A-2 and A-3) appellants herein stating that they abducted John Bosco
and his friend Madhan and taken them in the Maruti Van being driven by
John Bosco to one of the relatives of Accused No. 2 therein where they      C
caused death of John Bosco and Madhan by strangulating them one by
one using a rope and drowned their bodies in water streams using gunny
bags. A-1 also took the investigation officer to the place where the body
of Madhan was found in a gunny bag.
       (e) After following the due procedure, a charge sheet was filed in   D
the Court of Judicial Magistrate No. 5, Salem and the case was committed
to the Court of Additional District & Sessions Judge, Fast Track Court
No. II, Salem and numbered as Sessions Case No. 21 of 2009. The
Court framed charges under Sections 364, 302 read with Section 34,
201 read with Section 302 and 379 of the IPC.
                                                                            E
      (f) Learned Additional District & Sessions Judge, vide judgment
and order dated 18.09.2009, convicted all the accused for the commission
of crime under the charging Sections and sentenced them to undergo
imprisonment for life.
       (g) Being aggrieved by the judgment and order dated 18.09.2009,      F
the appellants-accused preferred Criminal Appeal Nos. 639 and 688 of
2009 before the High Court. The Division Bench of the High Court,
vide judgment and order dated 23.11.2009, dismissed the appeals preferred
by the appellants herein.
      (h) Being aggrieved by the judgment and order dated 23.11.2009,
                                                                            G
the appellants herein have preferred these appeals by way of special
leave before this Court.
       3. Heard Mr. K.K. Mani, learned counsel for the appellants-
accused and Mr. M. Yogesh Kanna, learned counsel for the respondent-
State and perused the records.
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754             SUPREME COURT REPORTS                           [2018] 6 S.C.R.


A           Point(s) for consideration:-
             4. The only point for consideration before this Court in the present
      facts and circumstances of the case is whether the High Court was
      right in dismissing the appeals preferred by the appellants-accused?
            Rival contentions:-
B
            5. Learned counsel appearing for the appellants contended that
      the courts below failed to appreciate that the conviction cannot be based
      upon a retracted confession and it can be used only in support of other
      evidence. He further contended that the courts below erred in convicting
      the appellants where the cause of death is not known.
C
             6. Learned counsel further contended that there are several
      lacunas in the prosecution version. In support of the same, he contended
      that the lower courts failed to appreciate that the owner of the phone
      recovered from Accused No. 1 therein is not PW-8 and some other
      person and the said person was never examined by the prosecution.
D     Further, on 14.02.2008, at about 10.30 a.m., PW-11 has seen the accused
      along with the deceased whereas the dead bodies have been found after
      a gap of several days and the possibility of intervention of some other
      person cannot be ignored.
             7. Learned counsel appearing for the appellants finally contended
E     that the High Court ought to have appreciated the fact that there was no
      complete chain of circumstantial evidence in the prosecution case and
      there are various discrepancies inherent in it, hence, the benefit of doubt
      should be given in favour of the appellants while setting aside the judgment
      and order passed by the High Court.
F           8. Per contra, learned counsel appearing on the behalf of
      Respondent-State submitted that the judgment and order passed by the
      Division Bench of the High Court upholding the decision of the Sessions
      Court is as per the terms and dictates of law and should not be inferred
      with and the evidence against the appellants-accused are sufficient
      enough to bring home the guilt.
G
            Discussion:-
             9. It is the case of the prosecution that the appellants-accused
      planned to earn quick money by robbing a car and selling the same and
      for that purpose on 14.2.2008 they went to Yercaud and engaged the
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  NAVANEETHAKRISHNAN v. THE STATE BY INSPECTOR                              755
           OF POLICE [R. K. AGRAWAL, J.]

taxi of the John Bosco (since deceased) under the guise of sightseeing.     A
John Bosco (since deceased) also took one Madhan (since deceased)
on the way. The appellants-accused asked the driver-John Bosco to
drop them at Periyar Nagar, Salem at the house of the grandfather of
one of the accused. After reaching there, the appellant-accused found
that the grandfather was not available. The appellants-accused invited
                                                                            B
John Bosco into the house for taking liquor and they killed both of them
by strangulating their necks with a rope. Accused No. 1 therein took the
mobile phone and the Accused No. 3 therein took the Yashika Camera
of one John Bosco. Accused No. 2 therein concealed the said van in
the house of his grandfather. The number plate of van was changed
with a sticker. Thereafter, they wrapped the dead bodies into separate      C
gunny bags and threw the gunny bag containing the dead body of John
Bosco into the well of PW-1 and threw away the dead body of Madhan
to some other place.
       10. The appellants-accused were charged and prosecuted under
Sections 302 read with 34, 364, 201 read with Section 379 of the IPC.       D
As in the given case no direct evidence of the incident is available, the
prosecution heavily relied upon the circumstantial evidences. To prove
the case, the prosecution has examined as much as 27 witnesses and
produced different relevant documents.
       11. In the FIR, bearing No. 41 of 2008, lodged by PW-8, at Yercaud   E
Police Station, he had specifically mentioned that he bought a mobile
phone in the name of some other person and handed over the same to
John Bosco. PW-8 is the owner of the vehicle which was being driven
by John Bosco at the time of the incident, and also happens to be his
maternal uncle. He further deposed that John Bosco was working as a
driver on the said vehicle at that time and on the fateful day i.e., on     F
14.02.2008, he told him that he is going to drop one of his friends at
Salem and left the place at about 11:30 and when he did not return for
two days he filed a missing complaint on 16.02.2008. PW-8 also tried to
contact John Bosco over the mobile phone but it was switched off. Mr.
Asaithambi (PW-26), the investigation officer, stated in his deposition     G
that on 25.02.2008, PW-8 handed over the bill of the said mobile phone
to him. During investigation and while tracing the IMEI number of the
mobile phone, it was revealed that the said phone was being used by
Accused No. 1-Sivasankaran. On 01.03.2008, Accused No. 1 was
apprehended by PW-26 and he voluntarily gave a confessional statement
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756            SUPREME COURT REPORTS                          [2018] 6 S.C.R.


A     which was witnessed by PW-13. Based on his confessional statement,
      PW-26 found the dead body of Madhan as well as the mobile phone of
      John Bosco and a rope was also recovered with which they alleged to
      have murdered the deceased. The dead body was identified by his
      mother and the same was further proved by skull imposition test. He
      further informed the whereabouts of other accused persons on the basis
B
      of which they were arrested from Yercaud junction. However, he
      retracted from the given statement in the court.
             12. Accused No. 2-Suresh was apprehended by PW-20 at Salem
      Railway Station based on the information given by Accused No. 1 and
      on the basis of his information, the recovery of the alleged Omni Van
C     was affected by PW-26. Further, Anbalagan (PW-11), who was a Taxi
      driver at Yercaud Taxi stand had deposed that the appellants-accused
      had spoken to John Bosco on 14.02.2008 for hiring a taxi for sightseeing.
      Thereafter, he noticed that the appellants-accused boarded the vehicle
      of John Bosco and Madhan also boarded the same vehicle from a short
D     distance. In fact, PW-11 had identified the appellants-accused in the
      court as the persons who had accompanied John Bosco and Madhan on
      14.02.2008.
             13. Accused No.-3-Navaneethakrishnan was apprehended by PW-
      20 from Salem Railway Station based on the information given by
E     Accused No. 1. PW-26 deposed that on the basis of the confession of
      Accused No. 3, Yashika Camera was recovered. The dead body of
      John Bosco was recovered from the farm of PW-1 on 17.02.2008 on his
      information and the same was identified by the mother and father of the
      deceased and was further proved by skull imposition test. But it is also
      relevant to mention here that in the present case, the prosecution has no
F     direct evidence to offer. The entire case rests upon the circumstantial
      evidence as there is no witness directly to speak about the occurrence.
              14. In the present case, there is no witness of the occurrence and
      it is only based on circumstantial evidence. Before moving further, it
      would be apposite to refer the law regarding reliability of circumstantial
G     evidence to acquit or convict an accused. The law regarding
      circumstantial evidence was aptly dealt with by this Court in Padala
      Veera Reddy vs. State of Andhra Pradesh and Others 1989 Supp. 2
      SCC 706 wherein this Court has observed as under:-

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  NAVANEETHAKRISHNAN v. THE STATE BY INSPECTOR                                 757
           OF POLICE [R. K. AGRAWAL, J.]

      “10. x x x x                                                             A
      (1) The circumstances from which an inference of guilt is sought
      to be drawn, must be cogently and firmly established;
      (2) those circumstances should be of a definite tendency unerringly
      pointing towards guilt of the accused;
                                                                               B
      (3) the circumstances, taken cumulatively, should form a chain so
      complete that there is no escape from the conclusion that within
      all human probability the crime was committed by the accused
      and none else; and
      (4) the circumstantial evidence in order to sustain conviction must      C
      be complete and incapable of explanation of any other hypothesis
      than that of guilt of the accused and such evidence should not
      only be consistent with the guilt of the accused but should be
      inconsistent with his innocence.”
       15. The prosecution placed reliance before the Court mainly on          D
three circumstances, firstly, the last seen theory, secondly, the recovery
of material objects which belonged to both the deceased from the
appellants-accused and thirdly, the identification of the dead body of
Madhan from the river bed as pointed out by the first accused, however,
the appellant herein has raised certain doubts regarding the same.
                                                                               E
       16. The pivotal evidence in the given case is the testimony of
PW-11 who is believed to have lastly seen the appellants-accused with
the deceased. Learned counsel appearing for the appellants-accused
has contended that all the accused were unknown to PW-11 but no
identification parade was conducted and the said witness has identified
the said accused directly in court after a lapse of about 50 days’ and         F
hence his evidence should not be relied upon.
       17. It is a settled proposition of law that the identification parade
of the accused before the court of law is not the only main and substantive
piece of evidence, but it is only a corroborative piece of evidence.
Regarding this, reliance can be safely placed on Rafikul Alam & Others         G
vs. The State of West Bengal 2008 Crl. L.J. 2005 wherein it was held
as under:-
      “32…..It is accordingly considered a safe rule of prudence to
      generally look for corroboration of the sworn testimony of
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758             SUPREME COURT REPORTS                             [2018] 6 S.C.R.


A            witnesses in Court as to the identity of the accused who are
             strangers to them, in the form of earlier identification proceedings.
             This rule of prudence, however, is subject to exceptions when, for
             example, the Court is impressed by a particular witness on whose
             testimony it can safely rely, without such or other corroboration.
             The identification parades do not constitute substantive evidence.
B
             Failure to hold a test identification parade would not make
             inadmissible the evidence of identification in Court. The weight to
             be attached to such identification should be a matter for the Courts
             of fact. In appropriate cases it may accept the evidence of
             identification even without insisting upon corroboration”
C             18. PW-11 was able to identify all the three accused in the Court
      itself by recapitulating his memory as those persons who came at the
      time when he was washing his car along with John Bosco and further
      that he had last seen all of them sitting in the Omni van on that day and
      his testimony to that effect remains intact even during the cross
D     examination in the light of the fact that the said witness has no enmity
      whatsoever against the appellants herein and he is an independent witness.
      Once the testimony of PW-11 is established and inspires full confidence,
      it is well established that it is the accused who were last seen with the
      deceased specially in the circumstances when there is nothing on record
      to show that they parted from the accused and since then no activity of
E     the deceased can be traced and their dead bodies were recovered later
      on. It is a settled legal position that the law presumes that it is the person,
      who was last seen with the deceased, would have killed the deceased
      and the burden to rebut the same lies on the accused to prove that they
      had departed. Undoubtedly, the last seen theory is an important event in
F     the chain of circumstances that would completely establish and/or could
      point to the guilt of the accused with some certainty. However, this
      evidence alone can’t discharge the burden of establishing the guilt of
      accused beyond reasonable doubt and requires corroboration.
              19. Learned counsel for the appellants-accused contended that
G     the statements given by the appellants-accused are previous statements
      made before the police and cannot be therefore relied upon by both the
      appellant-accused as well as the prosecution. In this view of the matter,
      it is pertinent to mention here the following decision of this Court in Selvi
      and Others vs. State of Karnataka (2010) 7 SCC 263 wherein it was
      held as under:-
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  NAVANEETHAKRISHNAN v. THE STATE BY INSPECTOR                                759
           OF POLICE [R. K. AGRAWAL, J.]

      “133. We have already referred to the language of Section 161           A
      CrPC which protects the accused as well as suspects and
      witnesses who are examined during the course of investigation in
      a criminal case. It would also be useful to refer to Sections 162,
      163 and 164 CrPC which lay down procedural safeguards in
      respect of statements made by persons during the course of
                                                                              B
      investigation. However, Section 27 of the Evidence Act
      incorporates the “theory of confirmation by subsequent facts”
      i.e. statements made in custody are admissible to the extent that
      they can be proved by the subsequent discovery of facts. It is
      quite possible that the content of the custodial statements could
      directly lead to the subsequent discovery of relevant facts rather      C
      than their discovery through independent means. Hence such
      statements could also be described as those which “furnish a link
      in the chain of evidence” needed for a successful prosecution.
      This provision reads as follows:
         “27. How much of information received from accused may               D
         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.                                           E

         134. This provision permits the derivative use of custodial
      statements in the ordinary course of events. In Indian law, there
      is no automatic presumption that the custodial statements have
      been extracted through compulsion. In short, there is no
      requirement of additional diligence akin to the administration of       F
      Miranda warnings. However, in circumstances where it is shown
      that a person was indeed compelled to make statements while in
      custody, relying on such testimony as well as its derivative use
      will offend Article 20(3).”
      20. In this view, the information given by an accused person to a       G
police officer leading to the discovery of a fact which may or may not
prove incriminatory has been made admissible under Section 27 of the
Evidence Act, 1872. Further, in Selvi (supra), this Court held as under:-

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760            SUPREME COURT REPORTS                            [2018] 6 S.C.R.


A           “264. In light of these conclusions, we hold that no individual should
            be forcibly subjected to any of the techniques in question, whether
            in the context of investigation in criminal cases or otherwise. Doing
            so would amount to an unwarranted intrusion into personal liberty.
            However, we do leave room for the voluntary administration of
            the impugned techniques in the context of criminal justice provided
B
            that certain safeguards are in place. Even when the subject has
            given consent to undergo any of these tests, the test results by
            themselves cannot be admitted as evidence because the subject
            does not exercise conscious control over the responses during the
            administration of the test. However, any information or material
C           that is subsequently discovered with the help of voluntary
            administered test results can be admitted in accordance with
            Section 27 of the Evidence Act, 1872.”
            21. In Madhu vs. State of Kerala (2012) 2 SCC 399, this Court
      while discussing the mandate of Section 27 of the Evidence Act held as
D     under:-
            “49. As an exception, Section 27 of the Evidence Act provides
            that a confessional statement made to a police officer or while an
            accused is in police custody, can be proved against him, if the
            same leads to the discovery of an unknown fact. The rationale of
E           Sections 25 and 26 of the Evidence Act is, that police may procure
            a confession by coercion or threat. The exception postulated under
            Section 27 of the Evidence Act is applicable only if the confessional
            statement leads to the discovery of some new fact. The relevance
            under the exception postulated by Section 27 aforesaid, is limited
            “… as relates distinctly to the fact thereby discovered….”. The
F           rationale behind Section 27 of the Evidence Act is, that the facts
            in question would have remained unknown but for the disclosure
            of the same by the accused. The discovery of facts itself, therefore,
            substantiates the truth of the confessional statement. And since it
            is truth that a court must endeavour to search, Section 27 aforesaid
G           has been incorporated as an exception to the mandate contained
            in Sections 25 and 26 of the Evidence Act.”
            22. Section 27 of the Evidence Act is applicable only if the
      confessional statement leads to the discovery of some new fact. The
      relevance is limited as relates distinctly to the fact thereby discovered.
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  NAVANEETHAKRISHNAN v. THE STATE BY INSPECTOR                                761
           OF POLICE [R. K. AGRAWAL, J.]

In the case at hand, the Yashika Camera which was recovered at the            A
instance of Accused No. 3 was not identified by the father as well as the
mother of the deceased. In fact, the prosecution is unable to prove that
the said camera actually belongs to the deceased-John Bosco. Though
the mobile phone is recovered from A-1, but there is no evidence on
record establishing the fact that the cell phone belongs to the deceased-
                                                                              B
John Bosco or to PW-8 as the same was not purchased in their name.
Further, the prosecution failed to examine the person on whose name
the cell phone was purchased to show that it originally belongs to PW-8
to prove the theory of PW-8 that he had purchased and given it to the
deceased John-Bosco. Further, the material objects, viz., Nokia phone
and Motor Bike do not have any bearing on the case itself. The Nokia          C
phone was recovered from Accused No. 1 and it is not the case that it
was used for the commission of crime and similarly the motor cycle so
recovered was of the father of Accused No. 3 and no evidence has
been adduced or produced by the prosecution as to how these objects
have a bearing on the case. In fact, none of the witnesses have identified
                                                                              D
the camera or stated the belongings of John Bosco. The said statements
are inadmissible in spite of the mandate contained in Section 27 for the
simple reason that it cannot be stated to have resulted in the discovery
of some new fact. The material objects which the police is claimed to
have recovered from the accused may well have been planted by the
police. Hence, in the absence of any connecting link between the crime        E
and the things recovered, there recovery on the behest of accused will
not have any material bearing on the facts of the case.
       23. The law is well settled that each and every incriminating
circumstance must be clearly established by reliable and clinching
evidence and the circumstances so proved must form a chain of events          F
from which the only irresistible conclusion about the guilt of the accused
can be safely drawn and no other hypothesis against the guilt is possible.
In a case depending largely upon circumstantial evidence, there is always
a danger that conjecture or suspicion may take the place of legal proof.
The court must satisfy itself that various circumstances in the chain of
events must be such as to rule out a reasonable likelihood of the innocence   G
of the accused. When the important link goes, the chain of circumstances
gets snapped and the other circumstances cannot, in any manner, establish
the guilt of the accused beyond all reasonable doubt. The court has to
be watchful and avoid the danger of allowing the suspicion to take the
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762                SUPREME COURT REPORTS                      [2018] 6 S.C.R.


A     place of legal proof for sometimes, unconsciously it may happen to be a
      short step between moral certainty and legal proof. There is a long
      mental distance between “may be true” and “must be true” and the
      same divides conjectures from sure conclusions. The Court in mindful
      of caution by the settled principles of law and the decisions rendered by
      this Court that in a given case like this, where the prosecution rests on
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      the circumstantial evidence, the prosecution must place and prove all
      the necessary circumstances, which would constitute a complete chain
      without a snap and pointing to the hypothesis that except the accused,
      no one had committed the offence, which in the present case, the
      prosecution has failed to prove.
C           Conclusion:-
             24. In view of the foregoing discussion, we are of the considered
      opinion that both the courts below have erred in relying that part of the
      statement which can be termed as confession which were given to the
      police officer while they were in custody and it will be hit by Section 26
D     of the Indian Evidence Act,1872 and only that part of the statement
      which led to the discovery of various materials would be permissible.
      Hence, in the absence of any other material evidence against the
      appellants-accused, they cannot be convicted solely on the basis of
      evidence of last seen together with the deceased.
E            25. In the light of the above discussion, the judgment and order
      dated 23.11.2009 passed by the High Court is set aside. The appeals
      are allowed. The appellants who are in custody shall be set at liberty
      forthwith, if they are not required in any other criminal case.

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      Ankit Gyan                                                  Appeals allowed.




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