2019 (3) TMI 1695 - SC - Indian Laws

Murder - Imposition of death sentence - cause of death of all the deceased was asphyxia due to strangulation and the deaths were homicidal in nature - Child witness - burden to prove - HELD 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. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion strong coincidences and grave doubt cannot take the place of legal proof. 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 though a false plea by the defence at best be considered as an additional circumstance if other circumstances unfailingly point to the guilt - It is also well-settled principle that 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. The case of the prosecution is mainly dependent on the testimony of Chandni the child witness who was examined as PW-8. 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 - This Court has consistently held that 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. The cash has not been traced back to the deceased as the box from which articles were allegedly stolen has not been recovered or seen by any witness. Even in the FIR there is no averment of any article or money being stolen or lost. Therefore when the money allegedly recovered is being sought to be relied upon as stolen from the house of the deceased the same is unreliable when there is nothing on record to support the claim of theft or robbery from the scene of crime - The forensic evidence against the appellants to prove their presence at the scene of crime is insufficient. The findings of the hair analysis are also inconclusive. The report only concluded the specimen to the human hair. The same is not sufficient to substantiate the presence of the appellants. There is a substantial loss of time from when PW-8 saw the deceased and the appellants together on 16.12.2012 and when the deceased were found on 17.12.2012. In such circumstances it is difficult to draw an inference that the appellants had committed the crime - appeal allowed - appellants/accused are hereby acquitted for the offences for which they were tried and they shall be released forthwith unless required in any other case/cases.

Summary

Issues Involved:
1. Competence and reliability of child witness testimony.
2. Delay in reporting the crime.
3. Reliability of recoveries made under Section 27 of the Indian Evidence Act.
4. Credibility of fingerprint and forensic evidence.
5. Motive of committing robbery.
6. Evidence of last seen together.

Issue-Wise Detailed Analysis:

1. Competence and Reliability of Child Witness Testimony:
The prosecution's case heavily relied on the testimony of a child witness, Kumari Chandni (PW-8). The court emphasized that while a child witness can be competent, their evidence must be evaluated carefully due to the risk of tutoring. Chandni was not an eyewitness to the incident, and her testimony contained inconsistencies. She did not initially identify the appellants, which was reflected in the FIR filed against unknown persons. The court found it risky to rely on her uncorroborated identification of the appellants.

2. Delay in Reporting the Crime:
There was an unexplained delay in reporting the crime. PW-8 stated that she woke up at 7:00 A.M., but the incident was reported to the police only at 4:00 P.M. This delay raised questions about the veracity of her statement. The court noted that the police station was only six kilometers away, and the delay in reporting the crime was not adequately explained.

3. Reliability of Recoveries Made Under Section 27 of the Indian Evidence Act:
The court scrutinized the recoveries made under Section 27 of the Indian Evidence Act. The recovery of the motorcycle at the instance of appellant No.1 was found unreliable as there was no evidence linking the motorcycle to him. The seized articles, including cash and a silver-patti, were not identified by any witness as belonging to the deceased. The court found the recoveries unreliable and insufficient to establish a connection to the crime.

4. Credibility of Fingerprint and Forensic Evidence:
The fingerprint evidence was deemed unreliable. The expert who examined the articles and found fingerprints was not examined in court. The court noted discrepancies in the process of lifting and analyzing the fingerprints. Additionally, the forensic analysis of hair samples was inconclusive, merely identifying them as human hair without linking them to the appellants.

5. Motive of Committing Robbery:
The prosecution alleged robbery as the motive for the crime. However, the court found this claim unsubstantiated. Expensive ornaments were left on the deceased, contradicting the motive of robbery. The cash recovered was not traced back to the deceased, and there was no evidence of theft or robbery from the crime scene. This negated the alleged motive for the crime.

6. Evidence of Last Seen Together:
The court reiterated that the circumstance of last seen together cannot by itself form the basis of holding the accused guilty. PW-8's testimony indicated that the accused were seen the night before the incident, but there was a substantial time gap between this sighting and the discovery of the bodies. The court found it difficult to draw an inference that the appellants committed the crime based on this evidence alone.

Conclusion:
The appeals were allowed, and the judgments of the High Court and the Sessions Court were set aside. The appellants were acquitted of the charges and ordered to be released forthwith unless required in any other case. The court emphasized the principles of criminal jurisprudence, stating that strong suspicion and conjecture cannot replace legal proof, and the prosecution must establish guilt beyond reasonable doubt.