DINESH KUMAR versus THE STATE OF HARYANA on 4 May 2023

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[2023] 4 S.C.R. 220

SUPREME COURT REPORTS

[2023] 4 S.C.R.

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DINESH KUMAR

v.

THE STATE OF HARYANA

(Criminal Appeal No. 530 of 2022)

BMAY 04, 2023

[SUDHANSHU DHULIA AND SANJAY KUMAR, JJ.]

Penal Code,1860 – ss.302,364,392,394,201 and 34 –Evidence Act, 1872 – ss.27,101,106 and 165 – The case ofprosecution was based on circumstantial evidence i.e. the evidenceCof ‘last seen’ and the ‘discoveries’ made from the information givenby the appellant – Appellant(accused) and one co-accused convictedby Trial Court for the murder of the deceased – Two separate appealswere filed before the High Court – During the pendency of theappeal, the co-accused passed away, thus, his appeal stood abatedD– The appeal of the present appellant was dismissed, thus convictionand sentence of the trial court was upheld by the High Court – Onappeal, held: In the present case, when there is no close proximitybetween circumstances of last seen together and the approximatetime of death, the evidence of last seen becomes weak, suchcircumstances by itself cannot form the basis of guilt – Further, theEevidence of recovery had already been disclosed by the co-accusedby the time the present appellant was arrested and thus the relevantfacts were already in the knowledge of the police – Thus, disclosureand discovery made thereafter cannot be read against the presentappellant – There cannot be a “discovery” of an already discoveredFfact – As far as the recovery of ‘Parna’ and watch of the deceasedfrom the disclosure statement made by appellant, this evidence initself is not sufficient to fix guilt on the appellant – Prosecutionfailed to establish important links in this case – Rigor mortis waspresent in the body after 90 days remained unexplained –Prosecution did not explain – Defence did not question –GProsecution was not able to prove its case beyond reasonable doubt– Judgment of trial court and High court set aside.

Evidence Act, 1872 – s. 165 – Judge’s power to put questionsor order production – Held: The duty of the presiding judge of acriminal trial is not to watch the proceedings as a spectator or aH

recording machine but he has to participate in the trial ‘by envincingintelligent active interest by putting questions to witnesses in orderto ascertain truth.’

Allowing the appeal, the Court

HELD:1. The recovery of the stolen tractor, the place wherethe murder was committed and the place where body was thrownin the canal were facts which were already in the knowledge ofthe police, since it is the case of the prosecution that the co--accused, who was arrested by the police 2 days preceding thearrest of the present appellant, had earlier led to the samediscoveries on 12[th], 13[th] & 14[th] of May, 2000. So, this disclosureand discovery made thereafter cannot be read against the presentappellant. There cannot be a “discovery” of an already discoveredfact! What remains is the discovery of currency notes, wrist watch,‘Parna’ and hair. The forensic report of hair only says that itbelongs to ‘human’. The currency notes cannot be really identifiedwith the deceased. What remains is the watch and the ‘Parna’,which has been identified with the deceased. The second is theevidence of “last seen”. This is in the form of PW-10 who is theneighbour of the complainant and who had seen the appellantalong with co-accused with the deceased on 08.05.2000 at about7.30 PM in the evening. [Para 8][229-F-H; 230-A-B]

2. The prosecution has failed to establish important linksin this case, which is so vital in a case of circumstantial evidence.Rigor mortis present in the body after 90 hours is unusual, thoughpossible under certain circumstances. It was the duty of theprosecution to explain it. The defense too failed to question itand the Court remained silent. [Para 11][233-D-E]

3. The evidence of last seen becomes an extremelyimportant piece of evidence in a case of circumstantial evidence,particularly when there is a close proximity of time between whenthe accused was last seen with the deceased and the discovery ofthe body of the deceased, or in this case the time of the death ofthe deceased. This does not mean that in cases where there is along gap between the time of last seen and the death of thedeceased the last seen evidence loses its value. It would not, but A

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Athen a very heavy burden is placed upon the prosecution to provethat during this period of last seen and discovery of the body ofthe deceased or the time of the death of the deceased, no otherperson but the accused could have had an access to the deceased.The circumstances of last seen together in the present case byitself cannot form the basis of guilt .The circumstances of lastBseen together does not by itself lead to an irrevocable conclusionthat it is the accused who had committed the crime. Theprosecution must come out with something more to establishthis connectivity with the accused and the crime committed.Particularly, in the present case when there is no close proximityCbetween circumstances of last seen together and the approximatetime of death, the evidence of last seen becomes weak. [Para12][233-E-G; 234-A-B]

4. As per the post-mortem which was conducted on12.05.2000 at 4:15 P.M, the death was 48 hours prior to the postDmortem, which means it was before 4:00 P.M. on 10.05.2000.Even assuming that the death has taken place, a day earlier i.e.09.05.2000, still there is a long gap between the last seen whichis at 7:00 pm on 08.05.2000 and the morning of 09.05.2000. Inthis case, even if this court take the time between the last seenand the approximate time of death as per the post-mortem, whichEwould go beyond 48 hours preceding the time of post-mortemand the time of death can be stretched to the morning of May 9,2000, which still begs an explanation from the prosecution as tothe time gap, as the deceased was last seen with the two accusedon 08.05.2000 at 7:00 P.M. [Para 12][234-E-F, G; 235-A]

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5. The burden of proof is always with the prosecution. It isthe prosecution which has to prove its case beyond a reasonabledoubt. Section 106 of the Act does not alter that position. It onlyplaces burden for disclosure of a fact on the establishment ofcertain circumstances. This Court have no reason to doubt theGtestimony of PW-10, the sole witness of last seen. In his statementunder Section 313 of the Code of Criminal Procedure, when theappellant was questioned about being in the company of thedeceased on 08.05.2000 along with co-accused, no explanationwas given by the appellant about his whereabouts. It is for this H

reason that it has been held that the accused has not been able todischarge his burden under Section 106 of the Act and thereforethis has to be read as an additional link in the chain of evidenceagainst the appellant. However, Section 106 of the Act would noteven come to play here under the facts and circumstances of thepresent case. What has to be kept in mind is that Section 106 ofthe Act, only comes into play when the other facts have beenestablished by the prosecution. In this case when the evidenceof last seen itself is on a weak footing, considering the long gapof time between last seen by PW-10 and the time of death of thedeceased, Section 106 of the Act would not be applicable underthe peculiar facts and the circumstances of the case. [Paras 12,13][235-H; 236-A-D]

6. As far as the recovery is concerned, the recovery is againweak. The so-called alleged place of crime and the recovery oftractor or the place where the tractor was abandoned had alreadybeen disclosed by the co-accused by the time the presentappellant was arrested. Therefore, making a disclosure about theplace of occurrence or the place where the tractor was abandonedis of no consequence. As far as the recovery of watch, currencynotes of Rs. 250/-, hair and ‘Parna’ from the residence of theappellant are concerned, the currency notes and hair have notbeen identified with the deceased. In a criminal trial, theprosecution has to prove its case beyond reasonable doubt. Thisheavy burden has to be discharged by the prosecution. It becomeseven more difficult in a case of circumstantial evidence. In thepresent case, the nature of circumstantial evidence is weak. Inorder to establish a charge of guilt on the accused, the chain ofevidence must be completed and the chain must point out to oneand only one conclusion, which is that it is only the accused whohave committed the crime and none else. This Court was afraidthe prosecution has not been able to discharge this burden. [Para14][236-E-H]

7. In the present case the prosecution has not been able toprove its case beyond reasonable doubt. The evidence of lastseen, only leads upto a point and no further. It fails to link itfurther to make a complete chain. All this court have here is theevidence of last seen, which as this court have seen looses much AB

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Aof its weight under the circumstances of the case, due to the longduration of time between last seen and the possible time of death.What this court can call as discovery here under Section 27 ofthe Act, is the discovery of ‘Parna’ and watch of the deceased.This evidence in itself is not sufficient to fix guilt on the appellant.BIn a case where there is no direct eye witness to the crime, theprosecution has to build its case on the circumstantial evidence.It is a very heavy burden cast on the prosecution. The chain ofcircumstances collected by the prosecution must complete thechain, which should point to only one conclusion which is that itis the accused who had committed the crime, and none else. EachCevidence which completes the chain of evidences must stand onfirm grounds. In the considered opinion of this Court, theevidence placed by the prosecution in this case does not passmuster the standard required in a case of circumstantial evidence.[Para 15][237-E-H; 238-A]

DRam Chander v. State of Haryana 1981 AIR 1036 :[1981] 3 SCR 12; Anjan Kumar Sarma & Ors. v. Stateof Assam (2017) 14 SCC 359; Malleshappa v. State ofKarnataka (2007) 13 SCC 399 : [2007] 10 SCR 153;Nizam & Anr. v. State of Rajasthan (2016) 1 SCC 550 :E[2015] 10 SCR 786; State of Goa v. Sanjay Thakran(2007) 3 SCC 755 : [2007] 3 SCR 507; Ajit Singh v.State of Maharashtra (2011) 14 SCC 401 : [2011] 13SCR 1000 - referred to.

Case Law Reference

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.530 of 2022.

From the Judgment and Order dated 31.05.2017 of the High Courtof Punjab & Haryana at Chandigarh in CRA No. 650 of 2003.

A. Sirajudeen Sr. Adv., Naresh Kumar (SCLSC), Keerthik Vasan,Rajaseker, Xavier Felix, Advs. for the Appellant.

Dinesh Chander Yadav, AAG, A S Rishi, Ishwar Chand, ManojGautam, Dr. Monika Gusain, Advs. for the Respondent.

The Judgment of the Court was delivered by SUDHANSHU DHULIA, J.

1. The appellant, and one Mange Ram, were convicted in SessionsTrial No. 47 of 2000, for offences under Sections 302/364/392/394/201read with Section 34 of Indian Penal Code (‘IPC’), by the learnedAdditional Sessions Judge, Jagadhri, Haryana. They were awarded lifesentence under Section 302 IPC, and lesser sentence on the remainingconvictions, vide order dated 11.07.2003. The two then filed separateappeals before Punjab and Haryana High Court. During the pendencyof his appeal the co-accused Mange Ram passed away on 24.10.2004,and his appeal stood abated vide order dated 11.05.2017. The appeal ofthe present appellant was dismissed and the conviction and sentence ofthe trial court was upheld by the High Court, vide its order dated31.05.2017. His SLP before this Court was given leave on 28.03.2022.

We have heard at length, the learned senior counsel Mr. A.Sirajudeen for the appellant and Mr. Dinesh Chander Yadav, learnedAdditional Advocate General for the State of Haryana.

2. The case of the prosecution is entirely based on circumstantialevidence. The ‘evidence’ of last seen and the “discoveries” made fromthe information given by the appellant. The facts of the case are asunder:-

3. The deceased Gurmail Singh was a resident of village-Dhimo,District, Yamuna Nagar, Haryana. On the morning of 08.05.2000, he lefthis village on his tractor, for the nearby village of ‘Dadupur’, (which is ata distance of 15-20 kilometers). In Dadupur he was to meet his sisterand his brother-in-law. He was with his sister and brother-in-law between2.00 P.M. to 5.30 P.M on 08.05.2000 and according to his brother-in-law A

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A(PW-1) he left their house at about 5.30 P.M on 08.05.2000. GurmailSingh never returned to his village. Meanwhile, Harbans Singh, the brotherof the deceased (the two brothers were staying together with their familiesin village Dhimo), goes to village Dadupur on 11.05.2000 i.e. after 3days, to enquire from his sister about the whereabouts of their brother,when he is told that the deceased had left their house on 08.05.2000Bitself at about 5.30 P.M.!

Harbans Singh then lodges the F.I.R. at P.S Buria, District YamunaNagar (Haryana), at 4.00 p.m on 11.05.2000. He states in the F.I.R. thatGurmail Singh is his brother, and the two live together as a joint family invillage Dhimo. Then he narrates how his brother left his village in theCmorning on 08.05.2000 on his tractor to meet their sister, but has sincenot returned. He states that while he was searching for his brother, hemet his neighbour Karanjit Singh, at the petrol pump of village Dadupur,who informed him that he had seen Gurmail Singh on his tractor on08.05.2000 at around 7.00 pm with Mange Ram and Dinesh (the twoDaccused), who were residents of nearby villages. He promptly went tothose villages to find out about the where about of these two persons,when he was informed that they were missing since 08.05.2000. Hethen states in his F.I.R. that these two persons Mange Ram and Dineshare known to be vagabonds and they have kidnapped his brother in orderto rob him of his tractor. A case was then registered by Police onE11.05.2000 under Section 364 IPC.

The body of the deceased was recovered next day i.e. on12.05.2000, at 1.30 P.M. from a canal. The inquest was conducted thesame day and the body was sent for post-mortem. The post-mortemwas conducted at about 4:15 P.M. on 12.05.2000 by Dr. Sumesh GargF(PW-4) and Dr. Ashok Kumar Sharma at Civil Hospital, Jagadhri. Thebody was found to be swollen with the skin peeling off from many places.Rigor mortis was found to be present in all four limbs of the deceased,but was absent in the neck. The tongue and lips of the deceased wasdark red in colour and swollen and further there was red coloured frothcoming out from the mouth and nostrils. There was a ligature mark of 53Gcm x 8 cm around the neck, over the thyroid and hyoid cartilage. Thebase of the ligature mark was hard and the margins of the ligature markwere pale and parchment like. The post-mortem report further statesthat the ligature marks present on the body disclosed an ante-mortemstrangulation. The Pericardium was found to be congested, with the leftHchamber of the heart to be empty and the right chamber of the heart DINESH KUMAR v. THE STATE OF HARYANA[SUDHANSHU DHULIA, J.]

was found to have little blood. Ultimately the cause of death was asphyxiadue to strangulation which was ante-mortem in nature.

The post mortem examination of the body shows that rigor mortiswas present in all the four limbs of the body, but was not there in theneck. This was indicative of the fact that rigor mortis was recedingfrom the body. Generally speaking, rigor mortis sets in one to two hoursafter the death, and develops from head to foot in about 12 hours. Rigormortis then disappears in the same sequence i.e. first from the head,then neck and then to the lower part of the body. In northern India, rigormortis lasts about 24 to 48 hours in winters and 18 to 36 hours in summers.All the same, there are many variables. The body structure, and thehealth of the deceased, the fact that it was kept in cold water and awayfrom heat will all slow down the process of rigor mortis[1].

Rigor mortis disappears late in bodies which are immersed incold water.[2] In the case at hand, the body of the deceased was recoveredfrom a canal, and therefore the possibility that rigor mortis would stillremain in the body cannot be entirely ruled out, but this has nowherebeen explained. Although the exact time when the deceased died hasnot come out but the prosecution case is that he was murdered by theaccused (Dinesh Kumar and Mange Ram) on 08.05.2000 itself. If this isso, then the rigor mortis has remained in the body for about 90 hours,which is unusual. Moreover, the prosecution has not explained this factor,and the defense has definitely not questioned Dr. Sumesh Garg (PW-4)on this aspect. But considering the importance of this aspect this questionshould have been put to the prosecution and particularly to the doctorwho had done the post mortem. If not by the defense then this questionought to have been put to the witness by the Court under the powersvested with the Court under Section 165 of the Indian Evidence Act,1872 (for short ‘Act’). But we will come to this in a while.

4. Meanwhile the co-accused Mange Ram was arrested on12.05.2000 and the next day i.e., 13.05.2000, on the information givenby him to the police he was taken to the place which was disclosed to bethe place where he and Dinesh Kumar had killed the deceased. Fromthis place, two pairs of “chappals” (slippers) one belonging to the appellant(Dinesh Kumar) and the other, belonging to the co-accused Mange Ram, 1 A textbook of Medical Jurisprudence and Toxicology by Modi (Chapter 15, Pg. 342)

2 Ibid (Chapter 15, Pg. 342)

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Awere recovered. Some burnt hair of the deceased were also recoveredfrom this place. Mange Ram then took the police party to the canal fromwhere the dead body was dropped.

5. On 14.05.2000 (i.e., the next day) Mange Ram led the policeparty to the place where the tractor of the deceased was abandoned byBhim and Dinesh Kumar. All the same, by the time the police party reachedthat place, the tractor had already been discovered by the local Police,and was in their custody at Rampur Police Station, Saharnpur, UttarPradesh. The possession of the tractor was taken from the local police,by the Investigating Officer.

C6. The present appellant was arrested on 14.05.2000, from‘Nandgarh’ village. On his disclosure a wrist watch, ‘Parna’ (turban)and currency notes amounting to Rs. 250/- allegedly belonging to thedeceased were recovered from his residence. He then took the Policeto the same place as the co-accused Mange Ram had earlier takenthem to the two places i.e., the place where the deceased was killed andDthe place where the tractor was abandoned[3].

7. The evidence of last seen is of Karanjit Singh (PW-10) who isthe neighbour of the complainant (PW-11). PW-10 had seen the deceasedalong with the two accused i.e., Dinesh Kumar and Mange Ram atabout 7:00 P.M. on 08.05.2000. According to the witness the deceasedEwas driving the tractor and the two i.e., the appellant and Mange Ramwere sitting on the mudguard of the tractor.

8. As we can see the case of the prosecution rests on twocircumstantial evidences: (A) The disclosure given in the police custodyand the discovery on its basis and (B) The evidence of last seen in theFform of PW-10. In a case of circumstantial evidence, motive too is ofsignificance. As far as motive is concerned, the prosecution case is thatthe two accused killed the deceased only to steal his tractor. The deceasedin this case was a 42-year-old well-built man of 6 feet 2 inches in height(Post Mortem report dated 12.05.2000). The prosecution case is thatGthe deceased was kidnapped and murdered by the two accused, for histractor which they had robbed from the deceased, after putting him todeath. Now this tractor the accused had in any case abandoned, and didnothing to recover it till one of them was caught on 12.05.2000. In short,the ‘motive’ is not very convincing.

H3 Meanwhile S.392/394/302 along with S.34 were added in the F.I.R. (dated 11.05.2000)

The disclosure made by the appellant while in police custody,which led to certain discoveries, such as the place where the stolentractor was abandoned, the place where the alleged crime wascommitted, and the place where the body was thrown in the canal, andalso the discovery of ‘Parna’, burnt hair, wrist watch, and currency notesof Rs.250/-.

Section 27 of the Evidence Act reads as under :- “How much of information received from accused may beproved—Provided that, when any fact is deposed to asdiscovered in consequence of information received from aperson accused of any offence, in the custody of a policeofficer, so much of such information, whether it amountsto a confession or not, as relates distinctly to the factthereby discovered, may be proved.”

The above provision shows that discovery should be of a distinctfact, the fact which has been discovered by disclosure of the one inpolice custody. All the same, these facts were already in the knowledgeof the police in the earlier discovery made by the co-accused MangeRam. The co-accused Mange Ram was arrested on 12.05.2000 andhad led to these discoveries on 12[th], 13[th]& 14[th] May. The present appellantwas arrested on May 14, 2000, and the alleged discoveries made by himwere later in time. The discoveries which were made on the pointing outof co-accused Mange Ram cannot be read against the present appellant.If the disclosure has been made by the accused to the police while hewas in their custody and such a disclosure leads to discovery of a factthen that discovery is liable to be read as evidence against the accusedin terms of Section 27 of the Act. All the same, the distinguishing featureof such a discovery must be that such a disclosure must lead to thediscovery of a “distinct fact”. The recovery of the stolen tractor, theplace where the murder was committed and the place where body wasthrown in the canal were facts which were already in the knowledge ofthe police, since it is the case of the prosecution that the co-accusedMange Ram, who was arrested by the police 2 days preceding the arrestof the present appellant, had earlier led to the same discoveries on 12[th],13[th ]& 14[th] of May, 2000. So, this disclosure and discovery made thereaftercannot be read against the present appellant. There cannot be a“discovery” of an already discovered fact! What remains is the discoveryof currency notes, wrist watch, ‘Parna’ and hair. The forensic report of A

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Ahair only says that it belongs to ‘human’. The currency notes cannot bereally identified with the deceased. What remains is the watch and the‘Parna’, which has been identified with the deceased.

The second is the evidence of “last seen”. This is in the form ofPW-10 Kartar Singh who is the neighbour of the complainant and whoBhad seen the appellant along with co-accused Mange Ram with thedeceased on 08.05.2000 at about 7.30 PM in the evening.

9. The admitted position is that the body of deceased wasdiscovered from the canal four days later i.e. on 12.05.2000 in theafternoon and the post-mortem was conducted at about 4.15 PM on theCsame day i.e.12.05.2000. According to Post-mortem report the deathhad taken place more than 48 hours prior to the post-mortem, whichwould mean that death took place approximately before 4.00 PM on10.05.2000. Although the autopsy reports normally do not give precisetime of death, but only indicate an approximate time or duration, yetunder normal circumstances in the present case, death should have beenDon May 10, 2000 or May 9, 2000. All the same, the case of the prosecutionis that the deceased was killed on May 8, 2000 itself. If this be so then itwas the duty of the prosecution to explain as to how rigor mortisremained present in the body, even after four days of the death. Thepossibility of the rigor mortis remaining in the body for 90 hours cannotEbe ruled out completely, but this was never explained by the prosecution.It was the duty of the prosecution to explain the unusual circumstancesunder which rigor mortis remained present in the body, even for 90hours, in the month of May.

The High Court has only relied upon the evidence of PW-4 Dr.FSumesh Garg who had conducted the post-mortem, who gave his opinionthat the death occurred more than 48 hours before the time of the post-mortem and therefore the deceased was killed by Mange Ram andpresent appellant on 08.05.2000 this is what has been said by the HighCourt: - G“According to PW-4 Dr. Sumesh Garg, who alongwith Dr.Ashok Kumar Sharma had conducted post-mortemexamination on dead body of Gurmail Singh on 12.05.2000.The probable duration between injuries and death was withinminutes and between death and post-mortem more than 48hours. Thus, it comes out that Gurmail Singh was murderedHby accused-Mange Ram and Dinesh Kumar on 08.05.2000.”

DINESH KUMAR v. THE STATE OF HARYANA[SUDHANSHU DHULIA, J.]

10. The trial court was conscious of this aspect but then it did notgo into this aspect for the reason that no question was put on this by thedefense, this is what was said by the trial court: - “I have gone through the post mortem report. Perusal of thesame reveals that the rigor mortis was present in all the fourlimbs due to swelling and not in normal course. It was theduty of the defence to ask the doctor who had conductedpost mortem on the dead body, whether the presence of rigormortis was suggestive of the fact that the deceased was killedwithin thirty-six hours of his post mortem examination. Butno such question was put to doctor. The doctor in his statementhad stated that the time between death and post mortemexamination was more than forty-eight hours and thisstatement of the doctor was not challenged in his cross-examination. Therefore, the plea of the ld. defence counselcannot be accepted.”

11. We are afraid that by pointing out the weakness in the crossexamination of the defense the presiding judge indirectly admits to theweakness in the trial itself. We say this for the reasons that under Section165 of the Act, a trial judge has tremendous powers to “ask any questionhe pleases, in any form, at any time, of any witness, or of the partiesabout any fact relevant or irrelevant”. It is in fact the duty of the TrialJudge to do so if it is felt that some important and crucial question wasleft from being asked from a witness. The purpose of the trial is after allto reach to the truth of the matter. Section 165 of the Act reads as under:

“165. Judge’s power to put questions or order production. ––

The Judge may, in order to discover or to obtain proper proofof relevant facts, ask any question he pleases, in any form, atany time, of any witness, or of the parties about any factrelevant or irrelevant; and may order the production of anydocument or thing; and neither the parties nor their agentsshall be entitled to make any objection to any such questionor order, nor, without the leave of the Court, to cross-examineany witness upon any answer given in reply to any suchquestion: Provided that the judgment must be based upon factsdeclared by this Act to be relevant, and duly proved: Providedalso that this section shall not authorize any Judge to compelany witness to answer any question, or to produce any A

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Adocument which such witness would be entitled to refuse toanswer or produce under sections 121 to 131, both inclusive,if the question were asked or the document were called for bythe adverse party; nor shall the Judge ask any question whichit would be improper for any other person to ask under section148 or 149; nor shall he dispense with primary evidence ofBany document, except in the cases hereinbefore excepted.”

The powers of a presiding judge in a criminal trial and his duty toget to the truth of the matter have been laid down in a seminal judgementof this Court authored by Justice O. Chinnappa Reddy, which is RamChander v. State of Haryana[4]. Justice O. Chinnappa Reddy in the saidCjudgment refers to his earlier Judgment[5] given by him as a Judge of theAndhra Pradesh High Court, where it was said :

“Every criminal trial is a voyage of discovery in which truthis the quest. It is the duty of a presiding judge to exploreevery avenue open to him in order to discover the truth andDto advance the cause of justice. For that purpose he isexpressly invested by Section 165 of the Evidence Act withthe right to put questions to witnesses. Indeed the right givento a judge is so wide that he may, ask any question he pleases,in any form, at any time, of any witness, or of the partiesEabout any fact, relevant or irrelevant. Section 172(2) of theCode of Criminal Procedure enables the court to send for thepolice-diaries in a case and use them to aid it in the trial. Therecord of the proceedings of the Committing Magistrate mayalso be perused by the Sessions Judge to further aid him inthe trial.”F

The duty of the presiding judge of a criminal trial is not to watchthe proceedings as a spectator or a recording machine but he has toparticipate in the trial “by evincing intelligent active interest by puttingquestions to witnesses in order to ascertain the truth.” While referringto a decision of Lord Denning in Jones v. National Coal Board[6 ]theGlearned Judge had said that it is the duty of the judge to ask questions tothe witnesses when it becomes necessary to clear up any point that hasbeen overlooked or left obscure, then he goes on to say as under:

4 1981 AIR 10365 Sessions Judge, Nellore v. Intha Ramana Reddy, ILR 1972 AP 683; 1972 Cri LJ 1485H6 (1957) 2 All ER 155: (1957) 2 WLR 760

“We may go further than Lord Denning and say that it is theduty of a judge to discover the truth and for that purpose hemay “ask any question, in any form, at any time, of any witness,or of the parties, about any fact, relevant or irrelevant”(Section 165, Evidence Act). But this he must do, withoutunduly trespassing upon the functions of the public prosecutorand the defence counsel, without any hint of partisanshipand without appearing to frighten or bully witnesses. He musttake the prosecution and the defence with him. The Court,the prosecution and the defence must work as a team whosegoal is justice, a team whose captain is the judge. The judge,‘like the conductor of a choir, must, by force of personality,induce his team to work in harmony; subdue the raucous,encourage the timid, conspire with the young, flatter and (sicthe) old’.”

In our considered opinion the prosecution has failed toestablish important links in this case, which is so vital in a case ofcircumstantial evidence. Rigor mortis present in the body after 90hours is unusual, though possible under certain circumstances. Itwas the duty of the prosecution to explain it. The defense too failedto question it and the Court remained silent. Let us now revert tothe evidence of last seen.

12. The evidence of last seen becomes an extremely importantpiece of evidence in a case of circumstantial evidence, particularly whenthere is a close proximity of time between when the accused was lastseen with the deceased and the discovery of the body of the deceased,or in this case the time of the death of the deceased. This does not meanthat in cases where there is a long gap between the time of last seen andthe death of the deceased the last seen evidence loses its value. It wouldnot, but then a very heavy burden is placed upon the prosecution toprove that during this period of last seen and discovery of the body ofthe deceased or the time of the death of the deceased, no other personbut the accused could have had an access to the deceased. Thecircumstances of last seen together in the present case by itself cannotform the basis of guilt (See: Anjan Kumar Sarma & Others v. Stateof Assam[7]).

7 (2017) 14 SCC 359 -para 19

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A The circumstances of last seen together does not by itself lead toan irrevocable conclusion that it is the accused who had committed thecrime. The prosecution must come out with something more to establishthis connectivity with the accused and the crime committed. Particularly,in the present case when there is no close proximity betweencircumstances of last seen together and the approximate time of death,Bthe evidence of last seen becomes weak (See: - Malleshappa v. Stateof Karnataka[8]).

In Nizam & Anr. v. State of Rajasthan[9]where the time gapbetween the last seen together and the discovery of the body of thedeceased was long, it was held that during this period the possibility ofCsome other interventions could not be ruled out. Where time gap betweenthe last seen and time of death is long enough, as in the present case,then it would be dangerous to come to the conclusion that the accused isresponsible for the murder. In such cases it is unsafe to base convictionon the “last seen theory” and it would be safer to look for corroborationDfrom other circumstance and evidence which have been adduced by theprosecution. The other circumstances here is the so called discovery,and most of these, as we have already discussed, fail to meet therequirement of Section 27 of the Evidence Act.

As per the post-mortem which was conducted on 12.05.2000 atE4:15 P.M, the death was 48 hours prior to the post mortem, which meansit was before 4:00 P.M. on 10.05.2000. Even assuming that the deathhas taken place, a day earlier i.e. 09.05.2000, still there is a long gapbetween the last seen which is at 7:00 pm on 08.05.2000 and the morningof 09.05.2000. In the case of State of Goa v. Sanjay Thakran[10], wherein the evidence of last seen, the recovery of dead body was only a fewFhours before “last seen”, it was not considered reliable.

The same was again emphasized by this Court in Ajit Singh v.State of Maharashtra[11]where it was emphasized that the time betweenvictim last seen alive and the discovery of the body of the deceased hasto be of close proximity, so that any other person being the author of theGcrime cannot be ruled out. In this case,even if we take the time betweenthe last seen and the approximate time of death as per the post-mortem, 8 (2007) 13 SCC 399 – para 239 (2016) 1 SCC 55010 (2007) 3 SCC 755H11 (2011) 14 SCC 401

which would go beyond 48 hours preceding the time of post-mortem andthe time of death can be stretched to the morning of May 9, 2000, whichstill begs an explanation from the prosecution as to the time gap, as thedeceased was last seen with the two accused on 08.05.2000 at 7:00P.M.

The trial court as well as the High Court have lost sight of thevital aspect of the matter. Both the Courts have relied on Section 106 ofthe Act and have held that since the accused was last seen with thedeceased and he has not been able to give any reasonable explanationof his presence with the deceased in his statement under Section 313 ofthe Cr.P.C., it has to be read against the accused and therefore it has tobe counted as an additional link in the chain of circumstantial evidence.In present case in the findings of the trial court and High Court thisappears to be the most important aspect which weighed with the trialcourt as well as the High Court in establishing the guilt of the accused.We are, however, afraid this is a complete misreading of Section 106 ofthe Act.

Section 101 of the Act places the burden of proof on theprosecution. It reads as under :-

101. Burden of proof –– Whoever desires any Court to givejudgment as to any legal right or liability dependent on theexistence of facts which he asserts, must prove that those factsexist. When a person is bound to prove the existence of anyfact, it is said that the burden of proof lies on that person.

Section 106 of the Act creates an exception to Section 101 andreads as under :-

106. Burden of proving fact especially within knowledge ––When any fact is especially within the knowledge of anyperson, the burden of proving that fact is upon him.

Section 106 of the Act is an exception to the rule which is Section101 of the Act, and it comes into play only in a limited sense where theevidence is of a nature which is especially within the knowledge of thatperson and then the burden of proving that fact shifts upon him thatperson.

The burden of proof is always with the prosecution. It is theprosecution which has to prove its case beyond a reasonable doubt.

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ASection 106 of the Act does not alter that position. It only places burdenfor disclosure of a fact on the establishment of certain circumstances.We have no reason to doubt the testimony of PW-10 (Karanjit Singh),the sole witness of last seen. In his statement under Section 313 of theCode of Criminal Procedure, when the appellant was questioned aboutbeing in the company of the deceased on 08.05.2000 along with co-Baccused Mange Ram, no explanation was given by the appellant abouthis whereabouts. It is for this reason that it has been held that the accusedhas not been able to discharge his burden under Section 106 of the Actand therefore this has to be read as an additional link in the chain ofevidence against the appellant. To our mind, however, Section 106 of theCAct would not even come to play here under the facts and circumstancesof the present case.

13. What has to be kept in mind is that Section 106 of the Act,only comes into play when the other facts have been established by theprosecution. In this case when the evidence of last seen itself is on aDweak footing, considering the long gap of time between last seen byPW-10 and the time of death of the deceased, Section 106 of the Actwould not be applicable under the peculiar facts and the circumstancesof the case.

14. As far as the recovery is concerned, the recovery is againEweak. The so-called alleged place of crime and the recovery of tractoror the place where the tractor was abandoned had already beendisclosed by the co-accused by the time the present appellant wasarrested. Therefore, making a disclosure about the place of occurrenceor the place where the tractor was abandoned is of no consequence.As far as the recovery of watch, currency notes of Rs. 250/-, hair andF‘Parna’ from the residence of the appellant are concerned, the currencynotes and hair have not been identified with the deceased. In a criminaltrial, the prosecution has to prove its case beyond reasonable doubt.This heavy burden has to be discharged by the prosecution. It becomeseven more difficult in a case of circumstantial evidence. In the presentGcase, the nature of circumstantial evidence is weak. In order to establisha charge of guilt on the accused, the chain of evidence must becompleted and the chain must point out to one and only one conclusion,which is that it is only the accused who have committed the crime andnone else. We are afraid the prosecution has not been able to dischargethis burden.H

The factors which have to be taken into consideration by the Courtin a case of circumstantial evidence, are too well settled to be stated butnevertheless these factors which are being reproduced from AnjanKumar Sarma (supra) are as under :- A

(1) the circumstances from which the conclusion of guilt is tobe drawn should be fully established. The circumstancesBconcerned “must” or “should” and not “may be” established;

(2) the facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, theyshould not be explainable on any other hypothesis exceptthat the accused is guilty; C

(3) the circumstances should be of a conclusive nature andtendency;

(4) they should exclude every possible hypothesis except theone to be proved; and D

(5) there must be a chain of evidence so complete as not toleave any reasonable ground for the conclusion consistentwith the innocence of the accused and must show that inall human probability the act must have been done by theaccused.”

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15. In our considered view, in the present case the prosecutionhas not been able to prove its case beyond reasonable doubt. Theevidence of last seen, only leads upto a point and no further. It fails tolink it further to make a complete chain. All we have here is the evidenceof last seen, which as we have seen looses much of its weight under thecircumstances of the case, due to the long duration of time between lastseen and the possible time of death. What we can call as discovery hereunder Section 27 of the Act, is the discovery of ‘Parna’ and watch of thedeceased. This evidence in itself is not sufficient to fix guilt on theappellant.

In a case where there is no direct eye witness to the crime, theprosecution has to build its case on the circumstantial evidence. It is avery heavy burden cast on the prosecution. The chain of circumstancescollected by the prosecution must complete the chain, which should pointto only one conclusion which is that it is the accused who had committedthe crime, and none else. Each evidence which completes the chain of G

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Aevidences must stand on firm grounds. In our considered opinion, theevidence placed by the prosecution in this case does not pass muster-the standard required in a case of circumstantial evidence.

16. This appeal therefore succeeds. The orders of the trial courtand the High Court dated 11.03.2007 and 31.05.2017, respectively areBhereby set aside. Appellant is in jail shall now be released forthwithunless his presence is required in any other case.

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Ankit Gyan

(Assisted by : Aarsh Choudhary, LCRA)

Appeal allowed.

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