DIGAMBER VAISHNAV & ANR. versus STATE OF CHHATTISGARH CRIMINAL APPEAL NOS. 428-430 OF 2019 MARCH 05, 2019

Citation: [2019] 2 S.C.R. 844 · Decided: 05-03-2019 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · cites 9 · see the full citation network in Lexace

Judgment (excerpt)

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844                    SUPREME COURT REPORTS            [2019] 2 S.C.R.
DIGAMBER VAISHNAV & ANR.
v.
STATE OF CHHATTISGARH
Criminal Appeal Nos. 428-430 of 2019
MARCH 05, 2019
[A. K. SIKRI, S. ABDUL NAZEER AND M. R. SHAH, JJ.]
Penal Code, 1860:
ss. 302/34 and 394/34 – Murder and Robbery – Prosecution
for – Based on circumstantial evidence – Prosecution relied on
testimony of child witness; recoveries made u/s. 27 of Evidence Act;
fingerprint report; FSL report; motive of committing robbery and
on evidence of last seen together – Courts below convicted the
accused and sentenced them to death – On appeal, held: In the
facts of the case, the circumstances on which prosecution case was
based, cannot be relied on – There was unexplained delay in
reporting the crime – The prosecution has withheld the best evidence
– In the circumstance of the case, it cannot be inferred that the
appellants had committed the crime.
Criminal Jurisprudence:
Burden of proof – Held: The burden of proof squarely rests
on the prosecution – The general burden never shifts – Strong
suspicion, strong coincidences and grave doubt cannot take the
place of legal proof – There can be no conviction on the basis of
surmises and conjectures or suspicion – Evidence.
Administration of criminal justice – In Criminal cases, if two
views are possible: one pointing to the guilt and other to the
innocence of the accused, the view favourable to the accused, should
be adopted – This principle has special relevance to the cases based
on circumstantial evidence.
Witness:
Child witness – Credibility – Need for corroboration – Held:
The court as a prudence seeks corroboration to the testimony of
child witness – There is no rule of practice that in every case evidence
of child witness has to be corroborated – Section 118 of Evidence
[2019] 2 S.C.R. 844
844
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845
Act governs competence of a witness including child witness – Only
precaution while assessing the evidence of child witness is that the
witness must be a reliable one.
Evidence Act, 1872:
s. 27 – Scope of – Held: Under s. 27 it is not the discovery of
every fact that is admissible, but the discovery of relevant fact alone
is admissible.
Evidence:
Circumstantial evidence – Last seen theory – Reliance on –
Held: The circumstance  of  last seen together cannot by itself form
the basis of holding accused guilty of offence – 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.
Allowing the appeals, the Court
HELD: 1. 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. [Para 15][854-E, F]
Jaharlal Das v. State of Orissa (1991) 3 SCC 27 : [1991]
2 SCR 298; Varkey Joseph v. State of Kerala 1993 Suppl
(3) SCC 745 : [1993] 3 SCR 390; Sujit Biswas v. State
of Assam (2013) 12 SCC 406 : [ 2013] 3 SCR 830 –
relied on.
2. 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
DIGAMBER VAISHNAV & ANR. v. STATE OF CHHATTISGARH
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846                    SUPREME COURT REPORTS            [2019] 2 S.C.R.
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. [Para 19][856-C, D]
Kali Ram v. State of Himachal Pradesh (1973) 2 SCC
808 : [1974] 1 SCR 722 – relied on
3.1 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. 

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