DINESH KUMAR versus THE STATE OF HARYANA

Citation: [2023] 4 S.C.R. 220 · Decided: 04-05-2023 · Supreme Court of India · Bench: SUDHANSHU DHULIA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2023] 4 S.C.R.
DINESH KUMAR
v.
THE STATE OF HARYANA
(Criminal Appeal No. 530 of 2022)
MAY 04, 2023
[SUDHANSHU DHULIA AND SANJAY KUMAR, JJ.]
Penal Code,1860 – ss.302,364,392,394,201 and 34 –
Evidence Act, 1872 – ss.27,101,106 and 165 – The case of
prosecution was based on circumstantial evidence i.e. the evidence
of ‘last seen’ and the ‘discoveries’ made from the information given
by the appellant – Appellant(accused) and one co-accused convicted
by Trial Court for the murder of the deceased – Two separate appeals
were filed before the High Court – During the pendency of the
appeal, the co-accused passed away, thus, his appeal stood abated
– The appeal of the present appellant was dismissed, thus conviction
and sentence of the trial court was upheld by the High Court – On
appeal, held: In the present case, when there is no close proximity
between circumstances of last seen together and the approximate
time of death, the evidence of last seen becomes weak, such
circumstances by itself cannot form the basis of guilt – Further, the
evidence of recovery had already been disclosed by the co-accused
by the time the present appellant was arrested and thus the relevant
facts were already in the knowledge of the police – Thus, disclosure
and discovery made thereafter cannot be read against the present
appellant – There cannot be a “discovery” of an already discovered
fact – As far as the recovery of ‘Parna’ and watch of the deceased
from the disclosure statement made by appellant, this evidence in
itself is not sufficient to fix guilt on the appellant – Prosecution
failed to establish important links in this case – Rigor mortis was
present in the body after 90 days remained unexplained –
Prosecution did not explain – Defence did not question –
Prosecution was not able to prove its case beyond reasonable doubt
– Judgment of trial court and High court set aside.
Evidence Act, 1872 – s. 165 – Judge’s power to put questions
or order production – Held: The duty of the presiding judge of a
criminal trial is not to watch the proceedings as a spectator or a
[2023] 4 S.C.R. 220
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recording machine but he has to participate in the trial ‘by envincing
intelligent active interest by putting questions to witnesses in order
to ascertain truth.’
Allowing the appeal, the Court
HELD:1. The recovery of the stolen tractor, the place where
the murder was committed and the place where body was thrown
in the canal were facts which were already in the knowledge of
the police, since it is the case of the prosecution that the co-
-accused, who was arrested by the police 2 days preceding the
arrest of the present appellant, had earlier led to the same
discoveries on 12th, 13th & 14th of May, 2000. So, this disclosure
and discovery made thereafter cannot be read against the present
appellant. There cannot be a “discovery” of an already discovered
fact! What remains is the discovery of currency notes, wrist watch,
‘Parna’ and hair. The forensic report of hair only says that it
belongs to ‘human’. The currency notes cannot be really identified
with the deceased. What remains is the watch and the ‘Parna’,
which has been identified with the deceased. The second is the
evidence of “last seen”. This is in the form of PW-10 who is the
neighbour of the complainant and who had seen the appellant
along with co-accused with the deceased on 08.05.2000 at about
7.30 PM in the evening. [Para 8][229-F-H; 230-A-B]
2. The prosecution has failed to establish important links
in this case, which is so vital in a case of circumstantial evidence.
Rigor mortis present in the body after 90 hours is unusual, though
possible under certain circumstances. It was the duty of the
prosecution to explain it. The defense too failed to question it
and the Court remained silent. [Para 11][233-D-E]
3. The evidence of last seen becomes an extremely
important piece of evidence in a case of circumstantial evidence,
particularly when there is a close proximity of time between when
the accused was last seen with the deceased and the discovery of
the body of the deceased, or in this case the time of the death of
the deceased. This does not mean that in cases where there is a
long gap between the time of last seen and the death of the
deceased the last seen evidence loses its value. It would not, but
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then a very heavy burden is placed upo

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