The last seen theory 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
| Case name: | Navaneethakrishnan V/s The State by Inspector of Police |
| Case number: | CRIMINAL APPEAL NO. 1134 OF 2013 |
| Court: | Supreme Court of India |
| Bench: | Hon’ble Justice A.K Sikri Hon’ble Justice R.K Agrawal |
| Decided on: | 16.04.2018 |
| Relevant Act/Sections: | Section 34, 304, 364 and 379 of Indian Penal Code, 1960; Section 26 and 27 of Indian Evidence Act, 1872 |
- BRIEF FACTS AND PROCEDURAL HISTORY:
- 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 with one Madhan (since deceased), took a Maruti Van from him but did not return for two days.
- 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 well. He immediately informed the same to the local police and when the sack was opened, a male body with hands tied at the back was found.
- During the course of investigation Appellant A-1 was apprehended who confessed to causing death of both John and Madhan by strangulation after kidnapping them in the van and taking them to A-2’s house. Based on his statement, Madhan’s body was recovered in a gunny bag.
- A charge sheet was filed in 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.
- 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.
- Being aggrieved by the judgment and order dated 18.09.2009, 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 the appellants herein have preferred these appeals by way of special leave before this Court.
- ISSUE BEFORE THE COURT:
- Whether the High court was correct in dismissing the appeals?
- RATIO OF THE COURT
- The learned counsel for appellant argued that there was no direct evidence on record which could link the appellants to the crime since a previous confession by PW-26 had been later retracted and the whole case of prosecution was based on circumstantial evidence. He also pointed out several loopholes in the examination of witnesses and identification parade of the accused persons.
- On the contrary, the counsel for the prosecution submitted that the evidence on record was sufficient to link the appellants to the crime.
- The court after the examination of evidence on record found that the prosecution was based on mainly three points- (a) Last seen theory – The accused were seen with the deceased last time the prosecution witness saw them. (b) Material objects recovered- The mobile phone and the camera along with the bike. (c) The identification of deceased Madhan’s body by one of accused.
- Hence, the evidence on record was not direct but circumstantial. The court relied uponPadala Veera Reddy vs. State of Andhra Pradesh and Others 1989 Supp. 2 SCC 706 wherein it was held that the circumstantial evidence available must be capable of establishing beyond a reasonable doubt that there is no other possibility except the one that accused has committed the crime.
- While the court agreed that the identification parade has only corroborative value and not substantive, it went on to hold that establishing the last seen theory alone cannot discharge the burden of proving the guilt.
- Regarding the issue of the admissibility of the initial statement of the accused, the court examined sec. 27 of the Evidence Act in the light of sec. 26 of the Act. It relied upon Selvi and Others vs. State of Karnataka (2010) 7 SCC 263 wherein it was held that the confessions made in police custody which are covered by the standard procedures under Cr.Pc can be admissible to the limit it leads to subsequent discovery of unknown facts which may corroborate it.
- In the present case, the objects such as camera which was recovered couldn’t be identified by the deceased’s parents. Also the phone which was projected as belonging to the deceased John Bosco wasn’t issued in his name. The rest objects also had no relation to the case.
- Therefore, the statements were found inadmissible as the discovery of material objects could not corroborate the same. The court mentioned that 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 things recovered, there recovery on the behest of accused will not have any material bearing on the facts of the case.
- The court went on to say that 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 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 observed that undoubtedly, the last seen theory 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.
- 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 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.
- It concluded that both the courts had erred in their decisions.
- DECISION HELD BY COURT:
- The judgment and order dated 23.11.2009 passed by the High Court was set aside. The appeals were allowed.
- The appellants who are in custody were directed to be set at liberty, if they are not required in any other criminal case.