SC: Proximity b/w seeing & recovering dead body vital for last seen theory

The Hon’ble Supreme Court, today, i.e. 5th March 2019, in the matter of Digamber Vaishnav & Anr. v. State Of Chhattisgarh, pronounced that the “last seen” factor can be considered to be an incriminating circumstance only when there is a close proximity between the time of seeing and recovery of dead body.

The Hon’ble Supreme Court, among other things, observed that:

One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. (Para 15)

There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. (Para 15)

Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. (Para 15)

 The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed.(Para 15)

A false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt.(Para 15)

In criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. (Para 19)

Section 118 of the Evidence Act governs competence of the persons to testify which also includes a child witness. Evidence of the child witness and its credibility could depend upon the facts and circumstances of each case. There is no rule of practice that in every case the evidence of a child witness has to be corroborated by other evidence before a conviction can be allowed to stand but as a prudence, the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that witness must be a reliable one. (Para 21)

Evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law. (Para 22)

Under Section 27 of the Indian Evidence Act, it is not the discovery of every fact that is admissible but the discovery of relevant fact is alone admissible. Relevancy is nothing but the connection or the link between the facts discovered with the crime. (Para 29)

The examination of expert is crucial especially if reliance is placed on the finger print report to suspect the guilt. (Para 36)

It is settled that the circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence. (Para 40)

If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen along with the accused at or near about the place of occurrence, the needle of suspicion would certainly point to the accused being the culprits and this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence does not inspire the confidence or is not trust worthy, there can be no conviction. (Para 40)

To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of dead body. (Para 40)

Copy of judgement: Judgement_05-Mar-2019

-Tushar Kaushik

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