Summary
A man was abducted from his home at knifepoint in November 2000, and his body was found buried by a river five days later. The appellant's conviction for murder and related offences rested on the wife's last-seen evidence, the recovery of the body said to have been made at his instance, and the recovery of stolen ornaments from his house. The Supreme Court acquitted him. Following Pulukuri Kotayya and Subramanya, a recovery under Section 27 of the Evidence Act must be proved through the accused's exact recorded statement and a proper discovery panchnama, and here no statement was recorded. The trial court itself had called the ornaments recovery fabricated. Last-seen evidence alone, with a five-day gap, could not sustain the conviction.
Issues
- Whether the conviction of the appellant on circumstantial evidence could stand where no statement under Section 27 of the Evidence Act was recorded for the recovery of the body, the recovery of ornaments was found fabricated, and only last-seen evidence remained.
Provisions considered
- Section 27, Indian Evidence Act, 1872The fact discovered embraces the place and the accused's knowledge of it, and the exact information leading to discovery must be recorded and proved, ideally through a two-part panchnama before independent witnesses (Pulukuri Kotayya, David Rozario, Subramanya). (¶¶ 20, 21, 24, 25, 26)
- Sections 302, 364, 365, 380, 395 and 201 read with Section 34, Indian Penal Code, 1860The appellant's convictions and life sentence affirmed by the Kerala High Court were set aside for want of proof. (¶¶ 2.6, 36)
Held
- In a case resting wholly on circumstantial evidence, each circumstance must be fully established and the chain must exclude every hypothesis but guilt (Sharad Birdhichand Sarda). (¶¶ 9, 10)
- No statement of the appellant was recorded under Section 27, so the prosecution failed to prove that the body was recovered at his instance; the ornaments recovery, which the trial court itself found to be a farce and fabricated, was perversely relied upon; and the spade was recovered from a place already known to the police. (¶¶ 26, 27, 28)
- Last-seen evidence applies only where the gap between the last sighting and the discovery of death is so short as to exclude others; with a gap of at least five days and no other proved circumstance, the conviction could not rest on it alone; Suresh Chandra Bahri, which involved a proved disclosure statement, is distinguishable. (¶¶ 16, 17, 19, 29, 30, 31, 34)
Result
Criminal Appeal No. 1439 of 2009 allowed; the trial court's judgment dated 18.12.2004 and the Kerala High Court judgment dated 25.08.2008 in Crl. A. No. 326 of 2005 set aside, and the appellant acquitted of all charges with bail bonds discharged.