The Supreme Court today (September 25) set aside the order of conviction and sentence of seven accused persons for the offence of the abduction and murder of a lady to forcefully obtain possession of the house belonging to her father which was a matter of pending litigation.
A bench of Justices Bela M. Trivedi and Satish Chandra Sharma held that the prosecution is full of glaring about the offence of abduction. Whereas, for the offence of murder which was entirely dependent on circumstantial evidence, it cannot be termed as proved in the eyes of the law as the circumstantial evidence failed to meet the test of proof.
Brief facts
As per brief facts, one Neelam was abducted by seven persons along with other unknown persons from her house which the prosecution claims belonged to her father. As per the prosecution, she, her husband and the informant (husband's brother) resided in that house.
Charges were framed by the Trial Court for offences punishable under Sections 323, 302, 364, 449, 450, 380/34 and 120-B of the Indian Penal Code, 1860. After the Trial, accused 1-5 were convicted under Section 302/34 and 364/34 IPC. Whereas, accused 6 and 7 were acquitted of all charges.
Both conviction and acquittal were challenged by the accused 1-5 and the State of Bihar respectively, before the Patna High Court. Vide an order dated March 26, 2015, the High Court upheld the Trial Court's order in respect of the accused 1-5. But set aside the acquittal of accused 6 and 7 and found them guilty of the under Sections 302/34 and 364/34.
The present batch of appeals assails the order of the High Court.
What did the Supreme Court observe?
The Court at the outset stated that for the offence of murder to be committed, it was necessary to prove that the offence of abducted was committed.
Perusing the evidence, the Court found that the prosecution did not examine the three independent witnesses who were said to be the eyewitnesses of the incident as per the testimony of the information.
The second point of doubt was on the informant's testimony. He had said that the accused persons had come to him first, took him to the well and confined him there. Thereafter, he said that he could not prevent the accused persons as A-6 had threatened him with a pistol. But in the FIR, no pistol was attributed to A-6. In the FIR, he stated that A6 and others assaulted him with fists and slaps. But this was not deposed before the Trial Court. Before the Trial Court, an improved version of the testimony was stated that A-6 carried pistol.
On informant's testimony, the Court noted: "The discrepancy assumes greater seriousness in light of the fact that no pistol has been recovered from any of the accused persons and if the factum of branding of pistol is un-der the cloud of doubt, the entire conduct of PW18 becomes doubtful and unnatural, as he did not try to prevent the accused persons from entering the premises or from abducting the deceased or from taking away the deceased on their shoulders in front of his eyes as he was the brother-in-law of the deceased."
Another point is that three eye-witnesses, relied by prosecution, were travelling from Lakhisarai to their home in Ghogsha village but happened to be present in Simaltalla, the place of the incident. This is to say, from Lakhisarai the next came Ghoghsa, followed by Lohanda and Simaltalla. However, why they happened to be present in Simaltalla remains unexplained by the prosecuted, as noted by the Court.
The Supreme Court found that the High Court had discarded the testimony of one of the three eyewitnesses as he had no reason to be present in the time of the incident. But the High Court did not extend this logic to the other two eye-witnesses.
The Court stated: "Even otherwise, since the three eye witnesses were similarly placed as per their own version, the rejection of testimony of one witness ought to have raised a natural doubt on the testimonies of the other two witnesses unless they had a better explanation. However, no such doubt was entertained by the High Court and the impugned judgment offers no explanation for the same.
In light of their own testimonies, none of the three eye witnesses were required to visit Sikandra Chowk or Simaltalla for going to their village."
The Court also noted that none of the eyewitnesses is an independent witness of fact. It said: "Ordinarily, there is no rule of law to discard the testimonies of the witnesses merely be-cause they were known to the victim or belonged to her family. For, an offence may be committed in circumstances that only the family members are present at the place of occurrence in natural course. However, the present case does not fall in such category."
The Court also raised serious questions over the fairness of the investigation conducted by the investigating officer. It said: "The stark difference between the versions put forth by the PW21 [investigation officer] and DW3/DW4 [senior officers who had exercised supervision of the investigation conducted by PW21] raises serious concerns regarding the fairness of investigation conducted by PW21 and it is a reasonable possibility that the eye witnesses were brought in to create a fool proof case."
It added: "The evidence of DW3 and DW4, both senior officers who had exercised supervision over the investigation conducted by PW21, indicates that the so-called eye witnesses of the incident were actually accessories after the fact and not accessories to the fact."
Based on all these considerations, the Court observed: "In the facts of the present case, the natural presence of the eye witnesses at the place of occurrence is under serious doubt, as discussed above, and for unexplained reasons, the naturally present public persons were not examined as witnesses in the matter. The nonexamination of natural witnesses such as Doman Tenti, Daso Mistry, Soordas, Kumud Ranjan Singh and many other neighbours who admittedly came out of their houses to witness the offence, coupled with the fact that the projected eye witnesses failed to explain their presence at the place of occurrence, renders the entire version of the prosecution as improbable and unreliable."
It added: "The eye witnesses, being family members, were apparently approached by PW18 who in-formed them about the incident and later, their versions were fabricated to make the case credible. Notably, when the version put forth by the interested witnesses comes under a shadow of doubt, the rule of prudence demands that the independent public witnesses must be examined and corroborating material must be gathered. More so, when public witnesses were readily available and the offence has not taken place in the bounds of closed walls."
Further, the Court expressed reservation to the findings of the prosecution that the deceased Neelam was residing at Simaltalla. The Court noted that except for prosecution witnesses linked to the deceased, no other witness approved this. It also noted that upon the investigation, it was found that another woman was residing in the same portion of the house where the deceased stayed. Some make-up articles were also found in that portion.
However, the High Court discarded this by stating that the make-up articles could not have belonged to the woman as she was a widow and there was no need to wear make-up.
The Supreme Court objecting to the remarks, stated: "Be that as it may, mere presence of certain make-up articles cannot be a conclusive proof of the fact that the deceased was residing in the said house, especially when another woman was admittedly residing there."
The Court found that neither the deceased nor the information, as he has claimed, were residing in the house.
Further, the Court flagged discrepancies in the post-mortem report including the time of death of the deceased. It said: "In the present matter, the evidence of the eye witnesses has been declared as wholly unreliable including on the aspect of time of death. Thus, there is no rea-son to doubt the post mortem report and the findings there-in."
High Court's reversal of acquittal not in line with settled law
Next, the Supreme Court noted that the reversal of acquittal by the High Court was not in line with the settled law. It observed: "The Trial Court had acquitted the said two accused persons on the basis of a thorough appreciation of evidence and the High Court merely observed that their acquittal was based on the improbable statement of PW5 and since the evidence of PW5 stood excluded from the record, there was no reason left for the acquittal of A-6 and A-7.
Pertinently, the High Court did not arrive at any finding of illegality or perversity in the opinion of the Trial Court on that count. Furthermore, it did not arrive at any positive finding of involvement of the said two accused persons within the sphere of common intention with the remaining accused persons. Equally, the exclusion of the evidence of PW5, without explaining as to how the evidence of PW2 and PW4 was not liable to be excluded in the same manner, was in-correct and erroneous."
The Court stated although the High Court was well within its powers to do so. However, in order to reverse a finding of acquittal, a higher threshold is required. It observed: "For, the presumption of innocence operating in favour of an accused through-out the trial gets concretized with a finding of acquittal by the Trial Court. Thus, such a finding could not be reversed merely because the possibility of an alternate view was alive.
Rather, the view taken by the Trial Court must be held to be completely unsustainable and not a probable view. The High Court, in the impugned judgment, took a cursory view of the matter and reversed the acquittal of A-6 and A-7 without arriving at any finding of illegality or perversity or impossibility of the Trial Court's view or non-appreciation of evidence by the Trial Court."
Based on all these considerations, the Supreme Court held that: "Having observed that the case of the prosecution is full of glaring doubts as regards the offence of abduction, we may briefly note and reiterate that the offence of murder is entirely dependent on circumstantial evidence. Although, the post mortem report indicates that the death of the deceased was unnatural and the commission of murder cannot be ruled out.
But there is no direct evidence on record to prove the commission of murder by the accused persons The link of causation between the accused persons and the alleged offence is conspicuously missing. The circumstantial evidence emanating from the facts surrounding the offence of abduction reasonable doubts, indicated above, are irreconcilable and strike at the foundation of the prosecution's case. Thus,, such as the testimonies of eye witnesses, has failed to meet the test of proof and cannot be termed as proved in the eyes of law.
Therefore, the foundation of circumstantial evidence having fallen down, no inference could be drawn from it to infer the commission of the offence under Section 302 IPC by the accused persons. It is trite law that in a case based on circumstantial evidence, the chain of evidence must be complete and must give out an inescapable conclusion of guilt. In the present case, the prosecution case is far from meeting that standard.
Case Details: Vijay Singh@Vijay Kr. Sharma v. The State of Bihar, Criminal Appeal No. 1031 of 2024
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