NAVANEETHAKRISHNAN versus THE STATE BY INSPECTOR OF POLICE on 16 April 2018

[2018] 6 S.C.R. 749

NAVANEETHAKRISHNAN

v.

THE STATE BY INSPECTOR OF POLICE

(Criminal Appeal No.1134 of 2013)

APRIL 16, 2018

[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 byPW-8 stating that ‘J’ employed as driver in his travel agency alongwith 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 aboutcommitting the crime along with appellants (A-2 and A-3) statingthat they abducted driver and his friend, and caused death bystrangulating them and thereafter drowned their bodies in waterstreams – A-1 also took the investigating officer to the place wherebody of ‘J’s friend was found in a gunny bag – Further, PW-11 hadlast seen the appellants- accused with the deceased – Trial Courtconvicted all the accused persons – Appeals dismissed by the HighCourt – On appeal, held: There was no witness of the occurrence –The pivotal evidence was the testimony of PW-11 who stated to havelast seen the appellants-accused with the deceased – However, thisevidence alone would not discharge the burden of establishing theguilt of accused beyond reasonable doubt and requiredcorroboration – Material objects recovered did not have anybearing on the case itself and no evidence was adduced orproduced by the prosecution as to how these objects had a bearingon the case – In fact, none of the witnesses had identified the statedbelongings of deceased- ‘J’ – Further, confession of A-1 given tothe police officer while in police custody would be hit by s.26 of theEvidence Act – Hence, in absence of any other material evidenceagainst the appellants-accused, case for interference with order ofconviction 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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AAllowing the appeals, the Court

HELD: 1. The testimony of PW-11 is established andinspires full confidence, it is well established that it is the accusedwho were last seen with the deceased specially in thecircumstances when there is nothing on record to show that theyBparted from the accused and since then no activity of the deceasedcan be traced and their dead bodies were recovered later on. Itis a settled legal position that the law presumes that it is theperson, who was last seen with the deceased, would have killedthe deceased and the burden to rebut the same lies on the accusedto prove that they had departed. Undoubtedly, the last seen theoryCis an important event in the chain of circumstances that wouldcompletely establish and/or could point to the guilt of the accusedwith some certainty. However, this evidence alone can’t dischargethe burden of establishing the guilt of accused beyond reasonabledoubt and requires corroboration. [Para 18] [758-D-F]

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2. Section 27 of the Evidence Act is applicable only if theconfessional statement leads to the discovery of some new fact.The relevance is limited as relates distinctly to the fact therebydiscovered. In the case at hand, the Camera which was recoveredat the instance of Accused No. 3 was not identified by the fatherEas well as the mother of the deceased. In fact, the prosecution isunable to prove that the said camera actually belongs to thedeceased. Though the mobile phone is recovered from A-1, butthere is no evidence on record establishing the fact that the cellphone belongs to the deceased or to PW-8 as the same was notpurchased in their name. Further, the prosecution failed toFexamine the person on whose name the cell phone was purchasedto show that it originally belongs to PW-8 to prove the theory ofPW-8 that he had purchased and given it to the deceased. Further,the material objects, viz., phone and Motor Bike do not have anybearing on the case itself. The phone was recovered fromAccused No. 1 and it is not the case that it was used for theGcommission of crime and similarly the motor cycle so recoveredwas of the father of Accused No. 3 and no evidence has beenadduced or produced by the prosecution as to how these objectshave a bearing on the case. In fact, none of the witnesses haveidentified the camera or stated the belongings of deceased driver.

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The said statements are inadmissible in spite of the mandatecontained in Section 27 for the simple reason that it cannot bestated to have resulted in the discovery of some new fact. Thematerial objects which the police is claimed to have recoveredfrom the accused may well have been planted by the police. Hence,in the absence of any connecting link between the crime and thethings recovered, there recovery on the behest of accused willnot 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 incriminatingcircumstance must be clearly established by reliable and clinchingevidence and the circumstances so proved must form a chain ofevents from which the only irresistible conclusion about the guiltof the accused can be safely drawn and no other hypothesis againstthe guilt is possible. When the important link goes, the chain ofcircumstances gets snapped and the other circumstances cannot,in any manner, establish the guilt of the accused beyond allreasonable doubt. [Para 23] [761-F-G]

4. The courts below have erred in relying that part of thestatement which can be termed as confession which were givento the police officer while they were in custody and it will be hitby Section 26 of the Indian Evidence Act,1872 and only that partof the statement which led to the discovery of various materialswould be permissible. Hence, in the absence of any other materialevidence against the appellants-accused, they cannot be convictedsolely on the basis of evidence of last seen together with thedeceased. [Para 24] [762-D]

Padala Veera Reddy v. State of Andhra Pradesh andOthers (1989) 2 Suppl. SCC 706 ; Rafikul Alam & Othersv. The State of West Bengal 2008 Crl. L.J. 2005 ; Selviand Others v. State of Karnataka (2010) 7 SCC 263 :[2010] 5 SCR 381 ; Madhu v. State of Kerala (2012) 2SCC 399 : [2012] 2 SCR 986 – referred to.

Case Law Reference(1989) 2 Suppl. SCC 706 referred toPara 14(2008) Crl. L.J. 2005 referred toPara 17[2010] 5 SCR 381 referred to Para 19[2012] 2 SCR 986 referred toPara 21

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ACRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1134 of 2013.

From the Judgment and Order dated 23.11.2009 of the High Courtof Judicature at Madras in Criminal Appeal No. 688 of 2009.

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Criminal Appeal Nos. 1135-1136 and 1137 of 2013.

K. K. Mani, Ms. T. Archana, Mayur R. Shah, Venkatesawar RaoAnumolu, K. K. S. Krishnaraj, Prabhakar Parnam, P. MadhusudhanReddy, N. Rajaraman, Jayanth Muth Raj, Ms. Y. Arunagiri,CS. Gowthaman, Advs. for the Appellant.

M. Yogesh Kanna, Ms. Nithya, R. V. Kameshwaran, Advs. forthe Respondent.

The Judgment of the Court was delivered by

R. K. AGRAWAL, J. 1. The above appeals are directed againstDthe common judgment and order dated 23.11.2009 passed by the HighCourt of Judicature at Madras in Criminal Appeal Nos. 639 and 688 of2009 whereby the Division Bench of the High Court dismissed the appealsfiled by the appellants herein against the order dated 18.09.2009 passedby the Fast Track Court No. II, Salem, in Sessions Case No. 21 of 2009Ewherein learned Additional District & Sessions Judge convicted theappellants herein under Sections 302 read with Section 34, Section 364and Section 379 of the Indian Penal Code, 1860 (in short ‘the IPC’) andsentenced to undergo imprisonment for life with substantive sentencesunder the IPC.

F2. Brief facts:

(a) A First Information Report (FIR) bearing No. 41 of 2008 atPS Yercaud, District Salem dated 16.02.2008 got registered byMahimaidoss (PW-8) stating that on 14.02.2008, John Bosco (sincedeceased), who was employed as the driver in his travel agency, alongGwith one Madhan (since deceased), took a Maruti Van from him but didnot return for two days.

(b) On the very next date, i.e., on 17.02.2008, one more FIR gotregistered by one Asokan bearing No. 88 of 2008 stating that when hewent to irrigate his fields, he found a white colour sack floating in theHwell. He immediately informed the same to the local police and when the sack was opened, a male body with hands tied at the back wasfound.

(c) On the basis of FIR dated 16.02.2008, Crime No. 41 of 2008was registered at Yercaud Police Station and during the pendency ofinvestigation, FIR No. 88 of 2008 got registered and a body was foundwhich was identified as of John Bosco.

(d) During investigation, Sivashankar (A-1 therein) wasapprehended and he confessed about committing the crime along with(A-2 and A-3) appellants herein stating that they abducted John Boscoand his friend Madhan and taken them in the Maruti Van being driven byJohn Bosco to one of the relatives of Accused No. 2 therein where theycaused death of John Bosco and Madhan by strangulating them one byone using a rope and drowned their bodies in water streams using gunnybags. A-1 also took the investigation officer to the place where the bodyof Madhan was found in a gunny bag.

(e) After following the due procedure, a charge sheet was filed inthe Court of Judicial Magistrate No. 5, Salem and the case was committedto the Court of Additional District & Sessions Judge, Fast Track CourtNo. II, Salem and numbered as Sessions Case No. 21 of 2009. TheCourt framed charges under Sections 364, 302 read with Section 34,201 read with Section 302 and 379 of the IPC.

(f) Learned Additional District & Sessions Judge, vide judgmentand order dated 18.09.2009, convicted all the accused for the commissionof crime under the charging Sections and sentenced them to undergoimprisonment for life.

(g) Being aggrieved by the judgment and order dated 18.09.2009,the appellants-accused preferred Criminal Appeal Nos. 639 and 688 of2009 before the High Court. The Division Bench of the High Court,vide judgment and order dated 23.11.2009, dismissed the appeals preferredby 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 specialleave 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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APoint(s) for consideration:-

4. The only point for consideration before this Court in the presentfacts and circumstances of the case is whether the High Court wasright in dismissing the appeals preferred by the appellants-accused?

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5. Learned counsel appearing for the appellants contended thatthe courts below failed to appreciate that the conviction cannot be basedupon a retracted confession and it can be used only in support of otherevidence. He further contended that the courts below erred in convictingthe appellants where the cause of death is not known.

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6. Learned counsel further contended that there are severallacunas in the prosecution version. In support of the same, he contendedthat the lower courts failed to appreciate that the owner of the phonerecovered from Accused No. 1 therein is not PW-8 and some otherperson and the said person was never examined by the prosecution.DFurther, on 14.02.2008, at about 10.30 a.m., PW-11 has seen the accusedalong with the deceased whereas the dead bodies have been found aftera gap of several days and the possibility of intervention of some otherperson cannot be ignored.

7. Learned counsel appearing for the appellants finally contendedEthat the High Court ought to have appreciated the fact that there was nocomplete chain of circumstantial evidence in the prosecution case andthere are various discrepancies inherent in it, hence, the benefit of doubtshould be given in favour of the appellants while setting aside the judgmentand order passed by the High Court.

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F8. Per contra, learned counsel appearing on the behalf ofRespondent-State submitted that the judgment and order passed by theDivision Bench of the High Court upholding the decision of the SessionsCourt is as per the terms and dictates of law and should not be inferredwith and the evidence against the appellants-accused are sufficientenough to bring home the guilt.G

Discussion:-

9. It is the case of the prosecution that the appellants-accusedplanned to earn quick money by robbing a car and selling the same andfor that purpose on 14.2.2008 they went to Yercaud and engaged the H

taxi of the John Bosco (since deceased) under the guise of sightseeing.John Bosco (since deceased) also took one Madhan (since deceased)on the way. The appellants-accused asked the driver-John Bosco todrop them at Periyar Nagar, Salem at the house of the grandfather ofone of the accused. After reaching there, the appellant-accused foundthat the grandfather was not available. The appellants-accused invitedJohn Bosco into the house for taking liquor and they killed both of themby strangulating their necks with a rope. Accused No. 1 therein took themobile phone and the Accused No. 3 therein took the Yashika Cameraof one John Bosco. Accused No. 2 therein concealed the said van inthe house of his grandfather. The number plate of van was changedwith a sticker. Thereafter, they wrapped the dead bodies into separategunny bags and threw the gunny bag containing the dead body of JohnBosco into the well of PW-1 and threw away the dead body of Madhanto some other place.

10. The appellants-accused were charged and prosecuted underSections 302 read with 34, 364, 201 read with Section 379 of the IPC.As in the given case no direct evidence of the incident is available, theprosecution heavily relied upon the circumstantial evidences. To provethe case, the prosecution has examined as much as 27 witnesses andproduced different relevant documents.

11. In the FIR, bearing No. 41 of 2008, lodged by PW-8, at YercaudPolice Station, he had specifically mentioned that he bought a mobilephone in the name of some other person and handed over the same toJohn Bosco. PW-8 is the owner of the vehicle which was being drivenby John Bosco at the time of the incident, and also happens to be hismaternal uncle. He further deposed that John Bosco was working as adriver on the said vehicle at that time and on the fateful day i.e., on14.02.2008, he told him that he is going to drop one of his friends atSalem and left the place at about 11:30 and when he did not return fortwo days he filed a missing complaint on 16.02.2008. PW-8 also tried tocontact John Bosco over the mobile phone but it was switched off. Mr.Asaithambi (PW-26), the investigation officer, stated in his depositionthat on 25.02.2008, PW-8 handed over the bill of the said mobile phoneto him. During investigation and while tracing the IMEI number of themobile phone, it was revealed that the said phone was being used byAccused No. 1-Sivasankaran. On 01.03.2008, Accused No. 1 wasapprehended by PW-26 and he voluntarily gave a confessional statement AB

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Awhich was witnessed by PW-13. Based on his confessional statement,PW-26 found the dead body of Madhan as well as the mobile phone ofJohn Bosco and a rope was also recovered with which they alleged tohave murdered the deceased. The dead body was identified by hismother and the same was further proved by skull imposition test. Hefurther informed the whereabouts of other accused persons on the basisBof which they were arrested from Yercaud junction. However, heretracted from the given statement in the court.

12. Accused No. 2-Suresh was apprehended by PW-20 at SalemRailway Station based on the information given by Accused No. 1 andon the basis of his information, the recovery of the alleged Omni VanCwas affected by PW-26. Further, Anbalagan (PW-11), who was a Taxidriver at Yercaud Taxi stand had deposed that the appellants-accusedhad spoken to John Bosco on 14.02.2008 for hiring a taxi for sightseeing.Thereafter, he noticed that the appellants-accused boarded the vehicleof John Bosco and Madhan also boarded the same vehicle from a shortDdistance. In fact, PW-11 had identified the appellants-accused in thecourt as the persons who had accompanied John Bosco and Madhan on14.02.2008.

13. Accused No.-3-Navaneethakrishnan was apprehended by PW-20 from Salem Railway Station based on the information given byEAccused No. 1. PW-26 deposed that on the basis of the confession ofAccused No. 3, Yashika Camera was recovered. The dead body ofJohn Bosco was recovered from the farm of PW-1 on 17.02.2008 on hisinformation and the same was identified by the mother and father of thedeceased and was further proved by skull imposition test. But it is alsorelevant to mention here that in the present case, the prosecution has noFdirect evidence to offer. The entire case rests upon the circumstantialevidence as there is no witness directly to speak about the occurrence.

14. In the present case, there is no witness of the occurrence andit is only based on circumstantial evidence. Before moving further, itwould be apposite to refer the law regarding reliability of circumstantialGevidence to acquit or convict an accused. The law regardingcircumstantial evidence was aptly dealt with by this Court in PadalaVeera Reddy vs. State of Andhra Pradesh and Others 1989 Supp. 2SCC 706 wherein this Court has observed as under:- “10. x x x x

(1) The circumstances from which an inference of guilt is soughtto be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringlypointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain socomplete that there is no escape from the conclusion that withinall human probability the crime was committed by the accusedand none else; and

(4) the circumstantial evidence in order to sustain conviction mustbe complete and incapable of explanation of any other hypothesisthan that of guilt of the accused and such evidence should notonly be consistent with the guilt of the accused but should beinconsistent with his innocence.”

15. The prosecution placed reliance before the Court mainly onthree circumstances, firstly, the last seen theory, secondly, the recoveryof material objects which belonged to both the deceased from theappellants-accused and thirdly, the identification of the dead body ofMadhan from the river bed as pointed out by the first accused, however,the appellant herein has raised certain doubts regarding the same.

16. The pivotal evidence in the given case is the testimony ofPW-11 who is believed to have lastly seen the appellants-accused withthe deceased. Learned counsel appearing for the appellants-accusedhas contended that all the accused were unknown to PW-11 but noidentification parade was conducted and the said witness has identifiedthe said accused directly in court after a lapse of about 50 days’ andhence his evidence should not be relied upon.

17. It is a settled proposition of law that the identification paradeof the accused before the court of law is not the only main and substantivepiece of evidence, but it is only a corroborative piece of evidence.Regarding this, reliance can be safely placed on Rafikul Alam & Othersvs. The State of West Bengal 2008 Crl. L.J. 2005 wherein it was heldas under:- “32…..It is accordingly considered a safe rule of prudence togenerally look for corroboration of the sworn testimony of A

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758SUPREME COURT REPORTS

Awitnesses in Court as to the identity of the accused who arestrangers to them, in the form of earlier identification proceedings.This rule of prudence, however, is subject to exceptions when, forexample, the Court is impressed by a particular witness on whosetestimony it can safely rely, without such or other corroboration.The identification parades do not constitute substantive evidence.BFailure to hold a test identification parade would not makeinadmissible the evidence of identification in Court. The weight tobe attached to such identification should be a matter for the Courtsof fact. In appropriate cases it may accept the evidence ofidentification even without insisting upon corroboration”C18. PW-11 was able to identify all the three accused in the Courtitself by recapitulating his memory as those persons who came at thetime when he was washing his car along with John Bosco and furtherthat he had last seen all of them sitting in the Omni van on that day andhis testimony to that effect remains intact even during the crossDexamination in the light of the fact that the said witness has no enmitywhatsoever 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 thedeceased specially in the circumstances when there is nothing on recordto show that they parted from the accused and since then no activity ofEthe deceased can be traced and their dead bodies were recovered lateron. 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 deceasedand the burden to rebut the same lies on the accused to prove that theyhad departed. Undoubtedly, the last seen theory is an important event in

Fthe chain of circumstances that would completely establish and/or couldpoint to the guilt of the accused with some certainty. However, thisevidence alone can’t discharge the burden of establishing the guilt ofaccused beyond reasonable doubt and requires corroboration.

19. Learned counsel for the appellants-accused contended thatGthe statements given by the appellants-accused are previous statementsmade before the police and cannot be therefore relied upon by both theappellant-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 Selviand Others vs. State of Karnataka (2010) 7 SCC 263 wherein it washeld as under:-H

“133. We have already referred to the language of Section 161CrPC which protects the accused as well as suspects andwitnesses who are examined during the course of investigation ina criminal case. It would also be useful to refer to Sections 162,163 and 164 CrPC which lay down procedural safeguards inrespect of statements made by persons during the course ofinvestigation. However, Section 27 of the Evidence Actincorporates the “theory of confirmation by subsequent facts”i.e. statements made in custody are admissible to the extent thatthey can be proved by the subsequent discovery of facts. It isquite possible that the content of the custodial statements coulddirectly lead to the subsequent discovery of relevant facts ratherthan their discovery through independent means. Hence suchstatements could also be described as those which “furnish a linkin the chain of evidence” needed for a successful prosecution.This provision reads as follows:

“27. How much of information received from accused maybe proved.—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 police officer,so much of such information, whether it amounts to aconfession or not, as relates distinctly to the fact therebydiscovered, may be proved.

134. This provision permits the derivative use of custodialstatements in the ordinary course of events. In Indian law, thereis no automatic presumption that the custodial statements havebeen extracted through compulsion. In short, there is norequirement of additional diligence akin to the administration ofMiranda warnings. However, in circumstances where it is shownthat a person was indeed compelled to make statements while incustody, relying on such testimony as well as its derivative usewill offend Article 20(3).”

20. In this view, the information given by an accused person to apolice officer leading to the discovery of a fact which may or may notprove incriminatory has been made admissible under Section 27 of theEvidence Act, 1872. Further, in Selvi (supra), this Court held as under:- AB

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A“264. In light of these conclusions, we hold that no individual shouldbe forcibly subjected to any of the techniques in question, whetherin the context of investigation in criminal cases or otherwise. Doingso would amount to an unwarranted intrusion into personal liberty.However, we do leave room for the voluntary administration ofthe impugned techniques in the context of criminal justice providedBthat certain safeguards are in place. Even when the subject hasgiven consent to undergo any of these tests, the test results bythemselves cannot be admitted as evidence because the subjectdoes not exercise conscious control over the responses during theadministration of the test. However, any information or materialCthat is subsequently discovered with the help of voluntaryadministered test results can be admitted in accordance withSection 27 of the Evidence Act, 1872.”

21. In Madhu vs. State of Kerala (2012) 2 SCC 399, this Courtwhile discussing the mandate of Section 27 of the Evidence Act held asDunder:-

“49. As an exception, Section 27 of the Evidence Act providesthat a confessional statement made to a police officer or while anaccused is in police custody, can be proved against him, if thesame leads to the discovery of an unknown fact. The rationale ofESections 25 and 26 of the Evidence Act is, that police may procurea confession by coercion or threat. The exception postulated underSection 27 of the Evidence Act is applicable only if the confessionalstatement leads to the discovery of some new fact. The relevanceunder the exception postulated by Section 27 aforesaid, is limited“… as relates distinctly to the fact thereby discovered….”. TheFrationale behind Section 27 of the Evidence Act is, that the factsin question would have remained unknown but for the disclosureof the same by the accused. The discovery of facts itself, therefore,substantiates the truth of the confessional statement. And since itis truth that a court must endeavour to search, Section 27 aforesaidGhas been incorporated as an exception to the mandate containedin Sections 25 and 26 of the Evidence Act.”

22. Section 27 of the Evidence Act is applicable only if theconfessional statement leads to the discovery of some new fact. Therelevance is limited as relates distinctly to the fact thereby discovered.

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In the case at hand, the Yashika Camera which was recovered at theinstance of Accused No. 3 was not identified by the father as well as themother of the deceased. In fact, the prosecution is unable to prove thatthe said camera actually belongs to the deceased-John Bosco. Thoughthe mobile phone is recovered from A-1, but there is no evidence onrecord establishing the fact that the cell phone belongs to the deceased-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 namethe cell phone was purchased to show that it originally belongs to PW-8to prove the theory of PW-8 that he had purchased and given it to thedeceased John-Bosco. Further, the material objects, viz., Nokia phoneand Motor Bike do not have any bearing on the case itself. The Nokiaphone was recovered from Accused No. 1 and it is not the case that itwas used for the commission of crime and similarly the motor cycle sorecovered was of the father of Accused No. 3 and no evidence hasbeen adduced or produced by the prosecution as to how these objectshave a bearing on the case. In fact, none of the witnesses have identifiedthe camera or stated the belongings of John Bosco. The said statementsare inadmissible in spite of the mandate contained in Section 27 for thesimple reason that it cannot be stated to have resulted in the discoveryof some new fact. The material objects which the police is claimed tohave recovered from the accused may well have been planted by thepolice. Hence, in the absence of any connecting link between the crimeand the things recovered, there recovery on the behest of accused willnot have any material bearing on the facts of the case.

23. The law is well settled that each and every incriminatingcircumstance must be clearly established by reliable and clinchingevidence and the circumstances so proved must form a chain of eventsfrom which the only irresistible conclusion about the guilt of the accusedcan be safely drawn and no other hypothesis against the guilt is possible.In a case depending largely upon circumstantial evidence, there is alwaysa danger that conjecture or suspicion may take the place of legal proof.The court must satisfy itself that various circumstances in the chain ofevents must be such as to rule out a reasonable likelihood of the innocenceof the accused. When the important link goes, the chain of circumstancesgets snapped and the other circumstances cannot, in any manner, establishthe guilt of the accused beyond all reasonable doubt. The court has tobe watchful and avoid the danger of allowing the suspicion to take the AB

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Aplace of legal proof for sometimes, unconsciously it may happen to be ashort step between moral certainty and legal proof. There is a longmental distance between “may be true” and “must be true” and thesame divides conjectures from sure conclusions. The Court in mindfulof caution by the settled principles of law and the decisions rendered bythis Court that in a given case like this, where the prosecution rests onBthe circumstantial evidence, the prosecution must place and prove allthe necessary circumstances, which would constitute a complete chainwithout a snap and pointing to the hypothesis that except the accused,no one had committed the offence, which in the present case, theprosecution has failed to prove.

CConclusion:-

24. In view of the foregoing discussion, we are of the consideredopinion that both the courts below have erred in relying that part of thestatement which can be termed as confession which were given to thepolice officer while they were in custody and it will be hit by Section 26Dof the Indian Evidence Act,1872 and only that part of the statementwhich led to the discovery of various materials would be permissible.Hence, in the absence of any other material evidence against theappellants-accused, they cannot be convicted solely on the basis ofevidence of last seen together with the deceased.

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25. In the light of the above discussion, the judgment and orderdated 23.11.2009 passed by the High Court is set aside. The appealsare allowed. The appellants who are in custody shall be set at libertyforthwith, if they are not required in any other criminal case.

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Ankit Gyan

Appeals allowed.

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