BOBY versus STATE OF KERALA

Citation: [2023] 1 S.C.R. 335 · Decided: 12-01-2023 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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  [2023] 1 S.C.R. 335
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BOBY
v.
STATE OF KERALA
(Criminal Appeal No. 1439 of 2009)
JANUARY 12, 2023
[B. R. GAVAI AND M. M. SUNDRESH, JJ.]
Evidence Act, 1872 – s.27 – Discovery of Fact – Criminal
trial – Three accused – Disclosure statement allegedly made by
accused no.3-appellant – Recovery of dead body of complainant’s
husband – Appreciation of evidence – Held: s.27 requires that the
fact discovered embraces the place from which the object is produced
and the knowledge of the accused as to this, and the information
given must relate distinctly to the said fact – The information as to
past user, or the past history, of the object produced is not related
to its discovery – If a fact is actually discovered in consequence of
information given, some guarantee is afforded thereby that the
information was true and consequently the said information can
safely be allowed to be given in evidence – The law expects the
investigating Officer to draw the discovery panchnama u/s.27 – In
the present case, the recovery panchnama is not in accordance with
the said requirement, and also there is no statement of accused no.3-
appellant recorded u/s.27 – Consequently, prosecution failed to prove
the circumstance that dead body of the deceased was recovered at
the instance of accused No. 3-appellant – IPC – ss. 395, 364, 365,
380, 201, 302 and 302 r/w s.34.
Evidence Act, 1872 – s.27 – Application of – Held: Provisions
of s.27 are based on the view that if a fact is actually discovered in
consequence of information given, some guarantee is afforded
thereby that the information was true and consequently the said
information can safely be allowed to be given in evidence.
Evidence – Last seen theory – Discussed – Held: Last seen
theory comes into play where the time gap between the point of time
when the accused and the deceased were last seen alive and when
the deceased is found dead is so small that possibility of any person
other than the accused being the author of the crime becomes
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SUPREME COURT REPORTS
[2023] 1 S.C.R.
impossible – If the gap between the time of last seen and the deceased
found dead is long, then the possibility of other person coming in
between cannot be ruled out.
Criminal Trial – Murder case – Case resting entirely on
circumstantial evidence – Appreciation of circumstantial evidence
– On facts, the only circumstance against the accused was that he
was last seen in the company of deceased on the basis of the evidence
of PW-1 – However, solely on the basis of last seen theory, conviction
cannot be upheld – Prosecution failed to prove the chain of
incriminating circumstances which leads to no other conclusion than
the guilt of the accused – Judgment passed by trial Court, thereby
convicting appellant and impugned judgment passed by High Court
affirming the same, accordingly, set aside – Appellant acquitted –
IPC – ss. 395, 364, 365, 380, 201, 302 and 302 r/w s.34.
Evidence – Circumstantial evidence – Appreciation of –
Golden principles with regard to conviction in a case which rests
entirely on circumstantial evidence – Discussed – Criminal Trial.
Allowing the appeal, the Court
HELD: 1. It is necessary for the prosecution that the
circumstances from which the conclusion of the guilt is to be drawn
should be fully established. It is a primary principle that the
accused ‘must be’ and not merely ‘may be’ guilty before a court
can convict the accused. There is not only a grammatical but a
legal distinction between ‘may be proved’ and “must be or should
be proved”. The facts so established should be consistent only
with the guilt of the accused, that is to say, they should not be
explainable on any other hypothesis except that the accused is
guilty. The circumstances should be such that they exclude every
possible hypothesis except the one to be proved. There must be
a chain of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence of the
accused and must show that in all human probabilities the act
must have been done by the accused. [Para 10]
2. Section 27 of the Evidence Act requires that the fact
discovered embraces the place from which the object is produced
and the knowledge of the accused as to this, and the information
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given must relate distinctly to the said fact. The information as to
past user, or the past history, of the object produced is not related
to its discovery. The law expects the IO to draw 

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