SHAILENDRA RAJDEV PASVAN AND OTHERSversusSTATE OF GUJARAT ETC.

270                       [2019]
               SUPREME COURT     14 S.C.R. 270
                              REPORTS                    [2019] 14 S.C.R.


A             SHAILENDRA RAJDEV PASVAN AND OTHERS
                                       v.
                          STATE OF GUJARAT ETC.
                    (Criminal Appeal Nos. 333-334 of 2017)
B                            DECEMBER 13, 2019
                 [N. V. RAMANA, SANJIV KHANNA AND
                          KRISHNA MURARI, JJ.]
             Penal Code, 1860 – ss.120-B, 302, 363, 364, 364-A, 365 –
C     Case based on circumstantial evidence – Approach of the Courts –
      Case of the prosecution that on 4th Feb. 2001, as per routine, the
      complainant-PW-1 left for work at 8:00 am and returned at 2:00
      pm for lunch, when he noticed that his son aged about 9 years was
      missing – PW-1 pointed out that initially appellant-accused no.1
      joined the search but thereafter suddenly vanished – Upon
D
      returning, allegedly, he made an extra-judicial confession
      confessing that he kidnapped PW-1’s son at the behest of accused
      no.5, who had animosity with PW-1 and that he made PW-1’s son sit
      on his bicycle and took him to the railway station, where he was
      handed over to appellant-accused nos.2 & 3 – Trial court acquitted
E     the appellants – Set aside by the High Court – On appeal, held:
      There is no eye witness of the incident and the entire case is based
      on circumstantial evidence and theory of last seen together – In a
      case based on circumstantial evidence, the Courts ought to have
      conscientious approach and conviction ought to be recorded only
      in case all the links of the chain are complete pointing to the guilt
F
      of the accused– In the present case, evidence of PW-28 and PW-29,
      residing near the residence of the PW-1, who were crucial to the
      case of prosecution to establish that deceased was last seen with
      appellant no.-1, is riddled with unexplained contradictions – Thus,
      the theory of last seen is rejected – Their evidence also becomes
G     shaky as they knew that PW-1’s son was missing since 4thFeb.2001
      but did not inform PW-1 or the police about the presence and conduct
      of the appellant no.1, despite being aware of the frantic search for
      PW-1’s son post his disappearance – High Court failed to take into
      account that there was huge time gap between the point when the
H
                                      270
SHAILENDRA RAJDEV PASVAN v. STATE OF GUJARAT ETC.                       271


accused and deceased were last seen together and the time of death      A
– Further, PW-1 did not testify that he identified that the dead body
found was that of his son – Doubt is also created by the post-mortem
report which records that minimum age of the deceased was around
16 years while, PW-1’s son was 9 years of age –There are also
noticeable contradictions about the circumstances in which the
                                                                        B
extra-judicial confession of the appellant no.1 was made –Evidence
adduced against the appellants do not form the complete chain
connecting them with the crime – Prosecution failed to prove the
guilt beyond doubt – Conviction and sentences of the appellants
set aside –Arms Act – s.21(1)(a) – Indian Explosives Act – ss.3, 5.
       Criminal Law – Reversal of acquittal by the appellate court –    C
Presumption of innocence in favour of the accused – Held: Where
an appellate court is reversing trial court’s order of acquittal, it
should give proper weight and consideration to the presumption of
innocence in favour of the accused, and to the principle that such
a presumption stands “reinforced, reaffirmed, and strengthened by       D
the trial court”.
     Evidence – Evidentiary value of extra-judicial confession –
Discussed.
      Allowing the appeals, the Court
                                                                        E
      HELD : 1.1 There are material contradictions in the
testimonies of PW-28 and PW-29. The evidence of PW-28 and
PW-29 also becomes shaky as both of them knew that Arjun was
missing since 4th February 2001 but did not inform Paramhansh
(PW-1) or the police to the presence and conduct of the Appellant
No. 1, despite residing near the residence of the complainant           F
and being aware of the frantic search for Arjun post his
disappearance. This renders their testimony unreliable. Thus,
the theory of last seen fails and is rejected as a feeble and
untrustworthy evidence. PW-1) has not testified that he had
identified the dead body found in the agricultural farm was that of     G
his son. Minimum age of the deceased was recorded around 16
years. PW-1’s son on the other hand was 9 years of age. Thus,
the entire case of the prosecution is based on circumstantial
evidence. In a case which rests on circumstantial evidence, law
postulates two fold requirements:- (i) Every link in the chain of
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272            SUPREME COURT REPORTS                       [2019] 14 S.C.R.


A     the circumstances necessary to establish the guilt of the accused
      must be established by the prosecution beyond reasonable doubt.
      (ii) All the circumstances must be consistent pointing only towards
      the guilt of the accused. In the case at hand, evidence of PW-28
      and PW-29, who were crucial to the case of prosecution to
      establish that deceased was last seen with Appellant Accused
B
      no.-1, is riddled with unexplained contradictions and were rightly
      dis-believed by the trial court. High Court committed an error of
      law in placing reliance upon the evidence of the aforesaid two
      witnesses. The High Court also failed to take into account the
      time gap between the point when the Accused Appellant No.-1
C     and deceased were seen together and when the death is alleged
      to have occurred. According to the prosecution evidence the two
      were seen together on 04.02.2001 at about 10:30 a.m. The dead
      body was recovered on 13.02.2001. Post-mortem was conducted
      on 14.02.2001. Although the possible time of death is not indicated
      in the post-mortem report but the Doctor who carried out the
D
      post-mortem opined in the statement that the time of death can
      be estimated to be 36 to 48 hours before the post mortem. There
      was a huge time gap between the point when the accused and
      deceased were last seen together and the time of death. This
      crucial fact was miserably over looked by the High Court. Apart
E     from Extra-Judicial Confession by Appellant Accused No.-1 no
      direct evidence was adduced by the prosecution to establish
      involvement of the accused in the alleged crime. Entire case of
      the prosecution was based on circumstantial evidence and theory
      of last seen together. [Paras 10-12, 15] [278-A, D-G; 279-B-C;
      E-F; 280-G; 281-A-C]
F
              1.2 In a case based on circumstantial evidence the Courts
      ought to have a conscientious approach and conviction ought to
      be recorded only in case all the links of the chain are complete
      pointing to the guilt of the accused. Each link unless connected
      together to form a chain may suggest suspicion but the same in
G     itself cannot take place of proof and will not be sufficient to convict
      the accused. Evidence adduced against the appellants do not form
      the complete chain connecting them with the crime and the
      prosecution has failed to prove the guilt beyond doubt. Lastly,
      the extra-judicial confession is questionable. In the complaint
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SHAILENDRA RAJDEV PASVAN v. STATE OF GUJARAT ETC.                        273


filed by PW-1 he alleged that the appellants had acted upon the          A
behest of accused no.5 but did not allude, as admitted in his cross-
examination, to any confession being made by Appellant No.1
about abducting son and handing him over to Appellant Nos. 2 &
3. That such confession was allegedly made emerged during the
examination of the PW-1, PW-9 and PW-22. There are noticeable
                                                                         B
contradictions about the circumstances in which the confession
was made, viz., the number of people in whose presence it was
made, degree of coercion/fear/intimidation that elicited the
alleged confession, among others.[Paras 16-18] [281-D-H;
282-A]
      1.3 In the present case, there are no eye witnesses to affirm      C
and corroborate the fact that the Appellant No. 1, as allegedly
confessed, had taken PW-1’s son on a bicycle and handed over
the child to Appellant Nos. 2 and 3. Further, the unfounded last
seen theory, contradicting medical evidence, and facts of the case,
particularly concerning the recovery of the body, belie the material     D
details of the alleged extra-judicial confession. Ergo, in the
absence of any credible corroboration of both: the actual
occurrence of such a confession and the incriminating facts alleged
to have been disclosed in the confession, this Court cannot accept
that the conviction of the appellants can be sustained on the basis
of such a confession. Accused No.5, was not convicted by the             E
appellate court. Appellant No. 4 who was convicted by the
appellate court was not assigned any role in the entire incident.
The High Court should not have interfered with the acquittals
given by the trial court, unless the acquittals were vitiated by
manifest illegality or such a conclusion “could not have been            F
possibly arrived at by any court acting reasonably and judiciously
and is, therefore, liable to be characterised as perverse”. Where
an appellate court is reversing a trial court’s order of acquittal, it
should give proper weight and consideration to the presumption
of innocence in favour of the accused, and to the principle that
such a presumption stands “reinforced, reaffirmed, and                   G
strengthened by the trial court”. The conviction and sentences
of the appellants is set aside and they are directed to be released
from custody, unless required to be detained in any other case in
accordance with law. [Paras 20-22] [283-B-G; 284-A]
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274           SUPREME COURT REPORTS                    [2019] 14 S.C.R.


A           Sharad Birdichand Sharda v. State of Maharashtra
            (1984) 4 SCC 116 : [1985] 1 SCR 88 ; Bodh Raj Alias
            Bodha v. State of Jammu and Kashmir (2002) 8 SCC
            45 : [2002] 2 Suppl. SCR 67 ; Rambraksh v. State of
            Chhattisgarh (2016) 12 SCC 251 : [2016] 2 SCR
            599 ; Anjan Kumar Sharma v. State of Assam 2017 (6)
B
            SCALE 556 ; Sahadevan v. State of T.N. (2012) 6 SCC
            403 : [2012] 4 SCR 366 ; Jagroop Singh v. State of
            Punjab (2012) 11 SCC 768 : [2012] 7 SCR 91 ; Tota
            Singh v. State of Punjab (1987) 2 SCC 529 : [1987] 2
            SCR 747 ; Chandrappa v. State of Karnataka (2007) 4
C           SCC 415 : [2007] 2 SCR 630 – relied on.
                            Case Law Reference
      [1985] 1 SCR 88               relied on              Para 13
      [2002] 2 Suppl. SCR 67        relied on              Para 14
D     [2016] 2 SCR 599              relied on              Para 14
      2017 (6) SCALE 556            relied on              Para 14
      [2012] 4 SCR 366              relied on              Para 19
      [2012] 7 SCR 91               relied on              Para 19
E     [1987] 2 SCR 747              relied on              Para 21
      [2007] 2 SCR 630              relied on              Para 21
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 333-334 of 2017.
F           From the Judgment and Order dated 28.09.2016/13.10.2016 of
      the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 1022
      of 2006 with Criminal Revision Application No. 50 of 2006.
            Ms. Manisha T. Karia, Shashank S. Mangal, Ms. Sukhda Kalra,
      Mrs. Mona K. Rajvanshi, Ashwani Kumar, Ms. Soumya Kundu, Anurag
G     Kashyap, Aniruddha P. Mayee, A. Rajarajan, P. S. Sudheer, Rishi
      Maheshwari, Mrs. Mayuri Nayyar Chawla, Ms. Anne Mathew, Bharat
      Sood and Ms. Shruti Jose, Advs. for the appearing parties.



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SHAILENDRA RAJDEV PASVAN v. STATE OF GUJARAT ETC.                               275


      The Judgment of the Court was delivered by                                A
      KRISHNA MURARI, J.
        1. These appeals arise from the judgment of the Division Bench
of the High Court of Gujarat dated 28th September 2016 convicting the
appellants under Section 302 read with Sections 363, 364, 364-A and
365 and Section 120-B of the Indian Penal Code, under Section 21 (1)(a)         B
of the Arms Act and under Section 3 and 5 of the Indian Explosive Act.
The Division Bench while reversing the order of acquittal passed by the
trial court, has imposed following punishment upon the appellants:
 Offence under             Sentence Imposed          Default Sentence
 Section                                                                        C
 302 of IPC                Life Imprisonment +       Two month’s simple
                           Fine of Rs. 10,000/-      imprisonment.
                           each
 363 of IPC                Seven years’ rigorous     One month’s simple
                           imprisonment + Fine       imprisonment
                           of Rs. 5,000/- each                                  D
 364 of IPC                Ten years’ rigorous       One month’s simple
                           imprisonment + Fine       imprisonment
                           of Rs. 5,000/- each
 364-A of IPC              Life imprisonment +       One month’s simple
                           Fine of Rs. 10,000/-      imprisonment
                           each
                                                                                E
 365 of IPC                Seven years’ rigorous     One month’s simple
                           imprisonment + Fine       imprisonment
                           of Rs. 5,000/- each

       2. Briefly stated, the case of the prosecution is that on 5th February
2001, the complainant, Paramhansh Mangal Yadav (PW-1), had informed
                                                                                F
the police at Kapodra Police Station that his youngest son, Arjun, aged
about 9 years who was studying in second standard, was missing from
4th February 2001. On the fateful day, the complainant, as per routine,
had left for work at 8:00 am and had returned at 2:00 pm for lunch, when
he noticed that Arjun was missing. The complainant had searched for
Arjun in the streets and at the relatives’ residing nearby but he could not     G
be located. This information given by the complainant was recorded by
an entry made in the police diary. Thereafter, formal complaint was
registered on 14th February 2001. In this complaint, Paramhansh (PW-
1) had pointed out that initially Shailendra Rajdev Pasvan, Appellant/
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276             SUPREME COURT REPORTS                          [2019] 14 S.C.R.


A     Accused No.1, had joined the search but thereafter he had suddenly
      vanished. After about four days, the Appellant No.1 had made a call to
      the complainant and disclosed that he was in Vapi. The complainant got
      suspicious and thereupon had sent his brother-in-law Sadhusharan
      Harinandan Yadav (PW-9) and two other relatives Sudarshan and
      Premchand Yadav to Vapi to bring Appellant No. 1 back. Upon returning,
B
      Appellant No. 1 is alleged to have made an extra-judicial confession
      before about 50 people near Paramhansh’s (PW-1) house. Appellant
      No. 1 had confessed that he had kidnapped Arjun at the behest of
      Ramkeval Mutur Yadav, Accused No. 5, who had animosity and grievance
      against the complainant. Appellant No. 1 had made Arjun sit on his bicycle
C     and had taken him to the railway station, where he was handed over to
      Ram Ashish and Shivnath, Appellant/Accused Nos. 2 and 3.
            3. Thereupon, Shailendra, Appellant No. 1, was arrested by the
      police on 14th February 2001.
             4. After the alleged extra-judicial confession, the complainant had
D     sent his brother-in-law, Sadhusharan (PW-9), again to Vapi along with
      one Jugeswar to search for Appellant Nos. 2 and 3. They had thereupon
      met Sanjay at Vapi who had informed that Appellant Nos. 2 and 3 were
      residing at his home. Thereupon Jugeswar informed the complainant
      who in turn conveyed this information to police. Appellant Nos. 2 and 3
E     were thereafter arrested by the police from the house of Sanjay.
             5. It is the case of the police that on 13th February 2001 a mutilated
      decomposed dead body without one leg was found by Naginbhai Kalyanji
      Patel (PW-15) and his son Sanjay Patel (PW-5) in their agricultural farm,
      who had then informed the police station at Pandesara. The said dead
F     body was sent for post mortem to the New Civil Hospital in Surat and
      kept in the mortuary.
            6. It is the case of the police that dead body was of Arjun and that
      the Appellant No. 1 after arrest on 14th February 2001 had disclosed and
      shown the place where Arjun was left with Appellant Nos. 2 and 3 and
G     where the bicycle used had been left. The Appellant Nos. 2 and 3 had
      also agreed and shown the place where Arjun was murdered and his
      dead body was disposed.
            7. After completing investigation charges were framed against
      the accused for offenses under Section 363, 364, 364-A, 365 and 302
      read with Section 120-B of the IPC and under Section 21 (1) (a) of the
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SHAILENDRA RAJDEV PASVAN v. STATE OF GUJARAT ETC.                              277
              [KRISHNA MURARI, J.]

Arms Act and under Section 3 and 5 of Indian Explosive Act and they            A
were put to trial.
      8. There is no eye witness of the incident and the entire case of
the prosecution rests on circumstantial evidence. The trial court vide
judgment dated 17th January 2006 acquitted the accused from the charges.
The circumstances which weighed with the trial court were:                     B
        (I)      The fact that the Appellant No.1 and the deceased were
                 seen together prior to death was extremely doubtful,
                 and was not proved.
        (II)     No reliance could be placed on extra-judicial confession.
                                                                               C
        (III)    Medical evidence adduced in the case was
                 contradictory.
        (IV)     When the first Panchnama after recovery of the dead
                 body was drawn no hair or bone was found at the site
                 of the occurrence but subsequently bunch of hair and          D
                 bones were discovered from the same site on the pointing
                 out of the accused.
        (V)      No evidence has been adduced in respect of ownership
                 of bicycle on which the Appellant No.1 was alleged to
                 have taken away the deceased, to establish that it
                                                                               E
                 belonged to him or it was borrowed by him from some
                 person.
        (VI)     Demand of ransom for kidnapping was not proved by
                 evidence thus motive was not established.
        (VII)    These circumstances proved did not link together so as        F
                 to form complete chain leading to only one consequence
                 i.e. guilt of the accused.
        9. Relying broadly on the testimonies of Kamlesh Bhagvanbhai
Thakur (PW-28) and Kashiben Chhitubhai Patel (PW-29) to establish
the last seen theory and the extra-judicial confession, while cherry-picking   G
the details of and papering the gaps in the medical evidence, the High
Court set aside the acquittal and convicted the appellants. The challenge
to the conviction, consequently, has been predicated on the tenability of
the said evidence.

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278             SUPREME COURT REPORTS                            [2019] 14 S.C.R.


A             10. At the outset, there are material contradictions in the testimonies
      of Kamlesh (PW-28) and Kashiben (PW-29). Kamlesh (PW-28) has
      testified that he and Dhaval were playing in the society and Arjun was
      riding a bicycle, whereas Kashiben (PW-29) has deposed that Arjun
      was on the terrace of Paramhansh’s (PW-1) house, around the same
      time. Further, Kashiben (PW-29) though seated near the door has not
B
      deposed as to the presence of Kamlesh (PW-28) in the vicinity. More
      importantly in the context of the Appellant No. 1 being last seen with
      Arjun, Kamlesh (PW-28) deposed that Appellant No.1 had spoken to
      Arjun, while they were heading towards the video game shop; Kashiben
      (PW-29), on the other hand, has deposed that the Appellant No.1 had
C     gone to the terrace of Paramhansh’s (PW-1) house where Arjun was
      also present and both of them came down. The story about the abduction
      of Arjun projected by Kashiben (PW-29) is even more debatable, if not
      clearly unacceptable as house of the complainant – Paramhansh (PW-
      1) is located at some distance (five houses apart) from the residence of
      Kashiben (PW-29). The evidence of Kamlesh (PW-28) and Kashiben
D
      (PW-29) also becomes shaky as both of them knew that Arjun was
      missing since 4th February 2001 but did not inform Paramhansh (PW-1)
      or the police to the presence and conduct of the Appellant No. 1, despite
      residing near the residence of the complainant and being aware of the
      frantic search for Arjun post his disappearance. This renders their
E     testimony unreliable. Thus, the theory of last seen fails and is rejected as
      a feeble and untrustworthy evidence.
             11. As noticed above, the dead body in a decomposed state with
      one leg missing was found on 13th February 2001 in the agricultural farm
      of Naginbhai Patel (PW-15) and Sanjay Patel (PW-5), which is a day
F     before the Appellant No.1 was arrested. The case set up by the
      prosecution is that the dead body was that of Arjun. However, the
      complainant and father, Paramhansh (PW-1) has not testified that he
      had identified the dead body found in the agricultural farm was that of
      Arjun. Paramhansh’s (PW-1) testimony is completely silent on the said
      aspect. Inspector Munavarkhan (PW-24) has testified that Paramhansh
G     (PW-1) had identified the dead body but this would be of no consequence
      as Paramhansh (PW-1) in his court testimony has not spoken about any
      such identification. Munavarkhan (PW-24) has not referred to any
      identification memo prepared by him. The testimony of witness to the
      panchnama on recovery of the dead body vide Ganeshbhai (PW-17)
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SHAILENDRA RAJDEV PASVAN v. STATE OF GUJARAT ETC.                                  279
              [KRISHNA MURARI, J.]

indicated that the body had decayed and had small maggots in it.                   A
Mansinghbhai Valvai (PW-20) who was working as Investigation Officer
at Pandesara Police Station has testified that the naked body had
blackened and was puffed up, the external skin had decayed and the
bone was visible from knee to paw of the right leg. Further doubt is
created by the post-mortem report prepared by Dr. Pravinbhai Kalidas
                                                                                   B
Patel (PW-27) marked “Ex-88” which records that rigor mortis and PM
lividity had passed off and the death had occurred 36-48 hours prior to
the post-mortem. Minimum age of the deceased was recorded around
16 years. Arjun on the other hand was 9 years of age. As per the police
version, bones of human body namely tibia and fibula were found at the
agricultural farm and sent for medical examination which was conducted             C
by Dr. Mohammad Kureshi (PW-25). Dr. Mohammad Kureshi (PW-
25) has stated that bones were in the same stage of decomposition,
however in his cross-examination, he could not state the exact age though
he was of the opinion that the bones were of a person below 16 years.
He also admitted that no chromosome opinion of the bones from FSL
                                                                                   D
report was received and thus it could not be said whether bones were of
a male or female. Admittedly DNA test was also not conducted. In this
background, the version of the prosecution cannot sustain, and recovery
of the dead body of Arjun cannot be attributed to the disclosure statements
made by the appellants.
      12. Thus the entire case of the prosecution is based on                      E
circumstantial evidence. It is well settled that in a case which rests on
circumstantial evidence, law postulates two fold requirements:-
           (i)         Every link in the chain of the circumstances necessary
                       to establish the guilt of the accused must be established
                       by the prosecution beyond reasonable doubt.                 F

           (ii)        All the circumstances must be consistent pointing only
                       towards the guilt of the accused.
     13. This court in the case of Sharad Birdichand Sharda v/s State
of Maharashtra1 has enunciated the aforesaid principle as under:-                  G
         “The normal principle in a case based on circumstantial
         evidence is that the circumstances from which an inference of
         guilt is sought to be drawn must be cogently and firmly

1
    (1984) 4 SCC 116                                                               H
280             SUPREME COURT REPORTS                        [2019] 14 S.C.R.


A            established; that those circumstances should be of a definite
             tendency unerringly pointing towards the guilt of the Accused;
             that 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 they should be incapable of explanation on any
B
             hypothesis other than that of the guilt of the Accused and
             inconsistent with his innocence”.
             14. Another important aspect to be considered in a case resting
      on circumstantial evidence is the lapse of time between the point when
      the accused and deceased were seen together and when the deceased
C     is found dead. It ought to be so minimal so as to exclude the possibility
      of any intervening event involving the death at the hands of some other
      person. In the case of Bodh Raj Alias Bodha v/s State of Jammu and
      Kashmir2, Rambraksh v/s State of Chhattisgarh3 , Anjan Kumar Sharma
      v/s State of Assam4 following principle of law, in this regard, has been
D     enunciated:-
             “The last seen theory comes into play where the time gap
             between the point of time when the Accused and deceased
             were seen last alive and when the deceased is found dead is
             so small that possibility of any person other than the Accused
E            being the author of crime becomes impossible. It would be
             difficult in some cases to positively establish that the deceased
             was last seen with the Accused when there is a long gap and
             possibility of other persons coming in between exists. In the
             absence of any other positive evidence to conclude that
             Accused and deceased were last seen together, it would be
F            hazardous to come to a conclusion of guilt in those cases”.
             15. In the case at hand, evidence of PW-28 and PW-29, who
      were crucial to the case of prosecution to establish that deceased was
      last seen with Appellant Accused no.-1, is riddled with unexplained
      contradictions and thus were rightly dis-believed by the trial court. High
G     Court committed an error of law in placing reliance upon the evidence
      of the aforesaid two witnesses. The High Court also failed to take into
      account the time gap between the point when the Accused Appellant
      2
        (2002) 8 SCC 45
      3
        (2016) 12 SCC 251
      4
H       (2017) (6) SCALE 556
SHAILENDRA RAJDEV PASVAN v. STATE OF GUJARAT ETC.                              281
              [KRISHNA MURARI, J.]

No.-1 and deceased were seen together and when the death is alleged            A
to have occurred. According to the prosecution evidence the two were
seen together on 04.02.2001 at about 10:30 a.m. The dead body was
recovered on 13.02.2001. Post-mortem was conducted on 14.02.2001.
Although the possible time of death is not indicated in the post-mortem
report but the Doctor who carried out the post-mortem opined in the
                                                                               B
statement that the time of death can be estimated to be 36 to 48 hours
before the post mortem. This clearly goes to show that there was a huge
time gap between the point when the accused and deceased were last
seen together and the time of death. This crucial fact has been miserably
over looked by the High Court. Apart from Extra-Judicial Confession
by Appellant Accused No.-1 no direct evidence was adduced by the               C
prosecution to establish involvement of the accused in the alleged crime.
Entire case of the prosecution was based on circumstantial evidence
and theory of last seen together. The extra-judicial confession of Appellant
No.-1 before the complainant and other relatives and recovery of the
dead body were linked together by the prosecution to form a chain.
                                                                               D
       16. It is well settled by now that in a case based on circumstantial
evidence the Courts ought to have a conscientious approach and conviction
ought to be recorded only in case all the links of the chain are complete
pointing to the guilt of the accused. Each link unless connected together
to form a chain may suggest suspicion but the same in itself cannot take
place of proof and will not be sufficient to convict the accused.              E

      17. Having gone through the material on record we are of the
considered view that evidence adduced against the appellants do not
form the complete chain connecting them with the crime and the
prosecution has failed to prove the guilt beyond doubt.
                                                                               F
       18. Lastly, the extra-judicial confession is questionable. In the
complaint filed by Paramhansh (PW-1) he had alleged that the appellants
had acted upon the behest of Ramkeval but did not allude, as admitted in
his cross-examination, to any confession being made by Appellant No. 1
about abducting Arjun and handing him over to Appellant Nos. 2 and 3.
That such a confession was allegedly made emerged during the                   G
examination of the Paramhansh (PW-1), Sadhusharan (PW-9) and Hiralal
Yadav (PW-22). Notwithstanding the fact that Sadhusharan (PW-9), as
mentioned earlier, is the brother-in-law of the complainant – Paramhansh

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282               SUPREME COURT REPORTS                       [2019] 14 S.C.R.


A     (PW-1) and Hiralal (PW-22) a neighbour, there are noticeable
      contradictions about the circumstances in which the confession was
      made, viz., the number of people in whose presence it was made, degree
      of coercion/fear/intimidation that elicited the alleged confession, among
      others.
B           19. In Sahadevan v. State of T.N.5 referring to the aspect of
      evidentiary value of extra-judicial confession, it was observed:
               “14. It is a settled principle of criminal jurisprudence that
               extra-judicial confession is a weak piece of evidence.
               Wherever the court, upon due appreciation of the entire
C              prosecution evidence, intends to base a conviction on an
               extra-judicial confession, it must ensure that the same inspires
               confidence and is corroborated by other prosecution
               evidence. If, however, the extra-judicial confession suffers
               from material discrepancies or inherent improbabilities and
               does not appear to be cogent as per the prosecution version,
D              it may be difficult for the court to base a conviction on such
               a confession. In such circumstances, the court would be fully
               justified in ruling such evidence out of consideration.”
             Elaborating on the jurisprudence that has evolved with regard to
      extra-judicial confessions, this Court in Sahadevan (supra) had stipulated
E     the principles that are required to be kept in mind while relying on extra-
      judicial confession as evidence. These principles have been succinctly
      mentioned in Jagroop Singh v. State of Punjab6 as:
               “30. Recently, in Sahadevan v. State of T.N., after referring
               to the rulings in Sk. Yusuf v. State of W.B. and Pancho v. State
F              of Haryana, a two-Judge Bench has laid down that the extra-
               judicial confession is a weak evidence by itself and it has to
               be State of Haryana, a two-Judge Bench has laid down that
               the extra-judicial confession is a weak evidence by itself and
               it has to be examined by the court with greater care and
G              caution; that it should be made voluntarily and should be
               truthful; that it should inspire confidence; that an extra-
               judicial confession attains greater credibility and evidentiary

      5
          (2012) 6 SCC 403
      6
          (2012) 11 SCC 768
H
SHAILENDRA RAJDEV PASVAN v. STATE OF GUJARAT ETC.                               283
              [KRISHNA MURARI, J.]

          value if it is supported by a chain of cogent circumstances           A
          and is further corroborated by other prosecution evidence;
          that for an extra-judicial confession to be the basis of
          conviction, it should not suffer from any material
          discrepancies and inherent improbabilities; and that such
          statement essentially has to be proved like any other fact and
                                                                                B
          in accordance with law.”
       20. In the present case, there are no eye witnesses to affirm and
corroborate the fact that the Appellant No. 1, as allegedly confessed,
had taken Arjun on a bicycle and handed over the child to Appellant
Nos. 2 and 3. Further, the unfounded last seen theory, contradicting
medical evidence, and facts of the case, particularly concerning the            C
recovery of the body, belie the material details of the alleged extra-
judicial confession. Ergo, in the absence of any credible corroboration of
both: the actual occurrence of such a confession and the incriminating
facts alleged to have been disclosed in the confession, this Court cannot
accept that the conviction of the appellants can be sustained on the basis      D
of such a confession.
       21. The trial court in our opinion had therefore rightly acquitted all
the accused after recording cogent reasons and good grounds. Ramkeval
Mutur Yadav, Accused No. 5, was not convicted by the appellate court.
Ajay @ Pradip Hiralal Gupta, Appellant No. 4 who has been convicted             E
by the appellate court has not been assigned any role in the entire incident.
Needless to state, the High Court should not have interfered with the
acquittals given by the trial court, unless the acquittals were vitiated by
manifest illegality or such a conclusion “could not have been possibly
arrived at by any court acting reasonably and judiciously and is, therefore,
liable to be characterised as perverse”.7 This Court has time and again         F
held that where an appellate court is reversing a trial court’s order of
acquittal, it should give proper weight and consideration to the presumption
of innocence in favour of the accused, and to the principle that such a
presumption stands “reinforced, reaffirmed, and strengthened by the trial
court”8. Given the inherent inconsistencies and incongruities in the            G
evidence in the present case, the alleged actions of the appellants have
not been proven beyond reasonable doubt.

7
    Tota Singh v. State of Punjab (1987) 2 SCC 529
6
    Chandrappa v. State of Karnataka (2007) 4 SCC 415                           H
284             SUPREME COURT REPORTS                       [2019] 14 S.C.R.


A            22. In light of the aforesaid discussion, we allow the appeals and
      set aside the conviction and sentences of the appellants in the charge-
      sheet arising from FIR No. 55/2001. The appellants are accordingly
      directed to be released from custody, unless they are required to be
      detained in any other case in accordance with law.
B
      Divya Pandey                                               Appeals allowed.




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