Summary
The State's appeals against the High Court's acquittal of two accused charged with the kidnapping for ransom and murder of a boy were dismissed. The case rested on circumstantial evidence; 'last seen together' evidence alone, with an unconvincing recovery and no proof that the accused made the ransom call, could not sustain a conviction, and there was no evidence at all against the second accused.
Issues
- Whether the High Court erred in acquitting the accused Ashok Bhoi of offences under Sections 364-A and 302 IPC in a case resting on circumstantial evidence.
- Whether the 'last seen together' theory, resting on Section 106 of the Evidence Act, can by itself sustain a conviction.
- Whether the acquittal of the co-accused Vikash Khubwani was rightly confirmed.
Provisions considered
- Section 106, Indian Evidence Act, 1872The Court recognised that the burden of proving a fact especially within a person's knowledge lies on him and that the 'last seen together' theory rests on this section: once the prosecution reliably proves that the accused was last seen with the deceased, the accused must explain that circumstance in his Section 313 CrPC statement, by defence evidence or through cross-examination. But the presumption drawn from his failure to explain cannot alone support a conviction; the prosecution must still prove the other circumstances beyond reasonable doubt. (¶ 9)
- Sections 364-A and 302, Indian Penal Code, 1860The accused Ashok Bhoi had been convicted by the trial court of kidnapping for ransom and murder; the Court found that, apart from the last-seen evidence, there was hardly any reliable evidence to prove these charges and upheld his acquittal. (¶¶ 4, 8, 11)
- Section 313, Code of Criminal Procedure, 1973Noted as one of the means by which an accused shown to have been last seen with the deceased may explain the incriminating circumstance. (¶ 9)
Held
- Where the prosecution case rests on circumstantial evidence, the entire chain of circumstances must be established by clinching and reliable evidence, and the proved circumstances must point only to the guilt of the accused and exclude every other hypothesis; suspicion, however strong, cannot take the place of proof, though courts must not let the guilty escape on fanciful doubts. (¶ 10)
- The 'last seen together' theory is founded on Section 106 of the Evidence Act. If the prosecution reliably proves that the accused was last seen with the deceased, the burden shifts to the accused to explain that circumstance, and his failure to do so may confirm the presumption against him; but that presumption alone is not sufficient to convict, and the prosecution must prove the other circumstances beyond reasonable doubt by cogent evidence. (¶ 9)
- On the facts, PW-18's evidence that he saw the accused with the deceased on the evening of the incident was not by itself sufficient; the STD-PCO operator was not examined to connect the accused with the ransom call, and the recovery of a blood-stained blade, nails and T-shirt two days after the incident did not inspire confidence. The High Court rightly acquitted him. (¶¶ 6, 8, 11)
- There was no evidence whatsoever connecting the co-accused Vikash Khubwani with the crime; the High Court rightly confirmed his acquittal. (¶ 7)
Result
Both appeals dismissed; the High Court's judgment acquitting both accused affirmed. Pending applications disposed of.