JABIR & ORS versus THE STATE OF UTTARAKHAND

Citation: [2023] 1 S.C.R. 969 · Decided: 17-01-2023 · Supreme Court of India · Bench: S. RAVINDRA BHAT · Disposal: Appeal(s) allowed
cites 5 · see the full citation network in Lexace
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

A
B
C
D
E
F
G
H
969
JABIR & ORS.
v.
THE STATE OF UTTARAKHAND
(Criminal Appeal No. 972 of 2013)
JANUARY 17, 2023
[S. RAVINDRA BHAT AND PAMIDIGHANTAM SRI
NARASIMHA, JJ.]
Penal Code, 1860 – ss.302, 364, 201 – The prosecution case
was that the victim ‘H’, aged about 7 years, went missing on
8.10.1999 – On 10.10.1999, his dead body was found in the
sugarcane field of ‘Y’ in Village – The victim’s father (PW-1) filed
an application u/s. 156(3) Cr.P.C. on 19.11.1999 – FIR was recorded
on 21.11.1999 – In the FIR, the informant alleged that he was told
by PW-3 and PW-2 that they had seen A-3 taking deceased boy ‘H’
into her house on 08.10.1999 – PW-4 told him that on 09.10.1999
at about 6 AM, he had seen ‘H’ standing along with A-1 and A-2 on
the road near Y’s sugarcane field – In the trial, the prosecution
relied on the testimony of 12 witnesses – The trial court convicted
the appellants u/s. 302 IPC and sentenced them to life imprisonment
as well as 7 years u/s.364, IPC and imprisonment for 5 years u/s.
201, IPC – The High court affirmed the trial court’s findings – On
appeal, held: The prosecution was not able to prove its case as
there were serious flaws in the testimonies of two sets of witnesses
(PWs 2 & 3 and PW- 4 & 5) who deposed to seeing the deceased
with A-3 and the first two accused, on 08.10.1999 and 09.10.1999,
respectively – PW-1’s conduct, in not stating anything during inquest
proceedings, despite being informed about seeing the boy in the
company of A-3 on 08.10.1999, and later, on the early morning of
09.10.1999, by PW-2, PW-3 and PW-4, undermines the prosecution
story – In the present case, save the “last seen” theory; there is no
other circumstance or evidence – The time gap between when the
deceased was seen in the company of the accused and the probable
time of his death, based on the post mortem report, is not narrow –
Therefore, solely relying on the “last seen” circumstance to convict
the accused-appellants is unjustified.
Allowing the appeals, the Court
HELD: 1. The conviction is solely based on the testimonies
of two sets of witnesses, PW-4 and PW-5. PW-5 is a cousin of PW-
   [2023] 1 S.C.R. 969
969
A
B
C
D
E
F
G
H
970
SUPREME COURT REPORTS
[2023] 1 S.C.R.
1, and his behaviour in not interceding upon seeing the 7-year-
old crying boy in the company of the accused, away from his house
and despite knowing about the previous enmity between the
parties, is unnatural. The police statement of PW-5 was recorded
more than two months after the start of investigation, and the
application under Section 156(3) CrPC does not mention that he
had witnessed the boy with the accused despite the witness’s
statement that he informed PW-1 about what he saw. [Para
18][977-F-G; 978-B]
2. PW-4’s testimony that he saw the deceased in the
company of first two appellants is unreliable, as him being a
resident of Akbarpur, went out to answer the call of nature at 6
AM to another village as Y’s field was located at village
Narayanpur and returned home immediately, then, there is no
explanation how he knew that the accused were standing at a
specific spot. Besides this, it is unnatural and improbable that
one as close a neighbour of PW-1 living 8-10 paces away would
not be aware that the boy went missing on 8.10.1999. [Para
19][978-E-G]
3. There is no explanation why PW-1, despite being told by
PW-2 and PW-3 that they had seen A-3 taking victim ‘H’ in her
house holding his hand, did not mention the involvement of A-3
in the inquest proceedings. PW-7, who is witness to inquest,
deposed about the presence of PW-1 to PW-5 during the inquest
renders suspect the deposition of PW-2 and weakens the
testimony of PW-5, who claims to have left the village on 09-10-
1999 and returned only on 12-10-1999. [Para 20][979-E-G]
4. In circumstantial evidence cases, to sustain conviction,
the panchsheel principles laid down in Sharad Birdichand Sarda
v. State of Maharashtra must be fulfilled. However, in present
case, prosecution is not able to prove the case beyond reasonable
doubt. There are serious flaws in the testimonies of two sets of
witnesses (PW-2, PW-3 & PW-4, PW-5) who deposed to seeing
the deceased with A-3 and the first two accused (A-1 and A-2),
on 08.10.1999 and 09.10.1999, respectively. There are flaws in
their testimonies regarding their presence at the place and time
and with respect to the knowledge of PW-1. PW-1’s conduct, in
not stating anything during inquest proceedings, despite being
A
B
C
D
E
F
G
H
971
informed about s
Excerpt shown. Read the full judgment & AI analysis in Lexace.