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TMI Blog2019 (3) TMI 1695X X X X Extracts X X X X X X X X Extracts X X X X ..... tance, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Both were living in separate mohallas. Bhuneshwar Das had two wives, namely, Shri Bai and Subhadra Bai. From Shri Bai, Bhuneshwar had seven daughters. From Subhadra Bai, he had five daughters and a son. Bhuneshwar Das had expired two years back. Mala, Kondi, Chandni, Nandini, Sharda and son Govinda were residing in the house apart from Shri Bai and Subhadra. 4. On 17.12.2012, at about 4 p.m., Chandni came to the house of PW-1, Badridas and informed him that Shri Bai, Subhadra, Kondi, Amrika and Mala Bai are lying dead in the courtyard and in a room. The complainant along with his wife Shanti Bai and Chandni immediately rushed to the house of Bhuneshwar and saw that Amrika and Mala Bai were lying dead at parchhi and Shri Bai, Subhadra and Kondi were lying dead in the room. There was bleeding from the nose and mouth of deceased and there were marks of injuries on the neck. 5. The complainant lodged the report of the occurrence in Police Outpost Gidhouri, where report (Exhibit P-6) was registered as per the statement of the complainant which was registered as FIR in Crime No.430/12 in the Police Station Bilaigarh. Marg intimations of Subhadra Bai, Shri Bai, Kondi, Mala Bai and Amri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and the buttons seized from the place of occurrence was also received wherein two buttons and threads were stated to be similar. 8. The police recorded the statement of PW-1, Badridas, Sheetal Das, Smt. Shanti Bai, Kumari Chandni, PW-8, Anita Bai and Dan Bai, Sohandas, PW-9 under Section 161 of Cr.P.C. After completion of investigation, chargesheet was filed in the court of Judicial Magistrate, who committed the case to the Sessions Court. 9. In order to prove their case, the prosecution examined 14 witnesses. The appellants were also examined under Section 313 of the Cr.P.C. wherein they pleaded that they are innocent and have been falsely implicated in the offence. 10. The Sessions Court by its judgment dated 14.05.2014 came to the conclusion that prosecution has successfully proved beyond doubt that the appellants have committed robbery in the house of the deceased persons and committed murder of all the five ladies. Each of the appellants was sentenced with R.I. for ten years and fine of ₹ 500/-, in default of payment of fine, they will further undergo one month's R.I. for the offence under Section 394 read with Section 34 of IPC. They were also sentenced with c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other circumstances unfailingly point to the guilt. 16. This Court in Jaharlal Das v. State of Orissa, (1991) 3 SCC 27, has held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied: i.) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; ii.) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and iii.) the circumstances, taken cumulatively, should form a chain so complete that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [See Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808]. 20. Bearing these principles in mind, we shall now consider the contentions of the learned counsel for the parties. In coming to the conclusion that the accused have committed the offence, the prosecution has relied on (i) Testimony of child witness Kumari Chandni (PW8); (ii) The recoveries made under Section 27 of the Evidence Act; (iii) The fingerprint report; (iv) FSL report; (v) Motive of committing robbery; and (vi) Evidence of last seen together. 21. 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itness to the incident. She was aged about 9 years at the time of the incident. Her evidence is fraught with inconsistencies. None of the other witnesses have identified the appellants. Therefore, heavy reliance was placed on the testimony of PW-8. She did not tell PW-1, Badridas about the appellants while disclosing about the incident for the first time. This is reflected from the FIR which has been registered against unknown persons. In such circumstances, it is risky to rely on the uncorroborated identification of the appellants at the instance of PW-8, who has not disclosed about the appellants at the first instance before PW-1 Badridas. 25. Shanti Bai, PW-3, wife of PW-1 has stated that PW-8 informed her that her mother had gone to work. This is in direct contradiction with the fact that as per the prosecution story, she was lying dead. Chandni herself states that in the morning, she saw her grandmother dead. Further, FIR records Badridas as saying that Chandni told him that Subhadra Bai is lying dead in her room. 26. The testimony of PW-8 also contradicts with that of PW-10. PW-10 states that herself and Anita had gone to the house of the deceased at 3 A.M. and had seen the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the motorcycle. Hence, there is no occasion for the assailants of the deceased to remain in the house and hence the motorcycle would not be outside the house of the deceased at 4 p.m. PWs 4 and 5 contradict each other. While PW-4 states that the motorcycle was of Bajaj Company, PW-5 mentions it as a motorcycle from Hero Honda Company. PW-5 in his examination-in-chief says that he had moved the motorcycle to allow the tractor to pass. However, in his cross-examination, he says that he did not move the motorcycle and it was PW-4, who moved it. PW-5 does not even state the day or month when he saw the motorcycle. 31. PW-2 was the witness to the seizure of the motorcycle. According to him, the motorcycle was red in colour. However, as per the seizure memo, the recovered motorcycle was black in colour. This makes the recovery of the motorcycle unreliable. It is relevant to state that the police recorded the statement of PWs 4 and 5 after delay of over two months. 32. Coming to the recovered articles, the silver-patti recovered at the instance of the appellants, is alleged to have been that of the deceased-Shri Bai. However, no witness identifies the silver-patti as belonging to any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient to show the acquaintance. He has not seen the appellants coming into the house. Therefore, his evidence is not sufficient to place the appellants at the scene of crime. 36. The expert, who examined the articles at the place of occurrence and found some finger prints, has not been examined. The person who took the sample finger prints has not been examined. The finger prints had been lifted on 17.12.2012 whereas the articles were seized on 18.12.2012. There is no explanation about why the articles were just left at the scene after developing the finger prints and why they were not seized and sent for analysis on the same day. Further, no prints have been found on the doors or the steel almirah to substantiate the robbery. The examination of expert is crucial especially if reliance is placed on the finger print report to suspect the guilt of the appellant. PW-12, Panch witness to the seizure of bottles states that the bottle was "lying near the door of the courtyard was seized." This makes the process of the lifting the print suspicious. 37. The shirt of appellant No. 2 recovered from him in pursuance of his statement under Section 27 of the Evidence Act is allegedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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. 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. 41. In Arjun Marik & Ors. v. State of Bihar, 1994 Supp (2) SCC 372, it has been held as under:- "31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stated in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded". 42. In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC, 715, the Court has reiterated that the last seen together does not by itself lead to the infere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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