NAVANEETHAKRISHNAN versus THE STATE BY INSPECTOR OF POLICE

Citation: [2018] 6 S.C.R. 749 · Decided: 16-04-2018 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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NAVANEETHAKRISHNAN
v.
THE STATE BY INSPECTOR OF POLICE
(Criminal Appeal No.1134 of 2013)
APRIL 16, 2018
[A. K. SIKRI AND R. K. AGRAWAL, JJ.]
Penal Code, 1860 – s.302 r/w. s.34, ss.364 and 379 –
Conviction based on circumstantial evidence – FIR registered by
PW-8 stating that ‘J’  employed as driver in his travel agency along
with another person took his van and did not return for two days –
Next day a body was found in a well which was identified  to be of
‘J’ – Prosecution case was that A-1 confessed about
committing the crime along with appellants (A-2 and A-3) stating
that they abducted driver and his friend, and caused death by
strangulating them and thereafter drowned their bodies in water
streams – A-1 also took the investigating officer to the place where
body of ‘J’s  friend was found in a gunny bag – Further, PW-11 had
last seen the appellants- accused with the deceased – Trial Court
convicted all the accused persons – Appeals dismissed by the High
Court – On appeal, held: There was no witness of the occurrence –
The pivotal evidence was the testimony of PW-11 who stated to have
last seen the appellants-accused with the deceased – However, this
evidence alone would not discharge the burden of establishing the
guilt of accused beyond reasonable doubt and required
corroboration – Material objects recovered did not have any
bearing on the case itself and no evidence was adduced or
produced by the  prosecution as to how these objects had a bearing
on the case – In fact, none of the witnesses had identified the stated
belongings of deceased- ‘J’ – Further, confession of A-1 given to
the police officer while in police custody would be hit by s.26 of the
Evidence Act – Hence, in absence of any other material evidence
against the appellants-accused, case for interference with order of
conviction is made out – Evidence Act, 1872 – ss.26 and  27.
Criminal Law: Circumstantial evidence – Last seen theory –
Presumption of guilt – Burden to rebut on accused.
   [2018] 6 S.C.R. 749
749
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SUPREME COURT REPORTS
[2018] 6 S.C.R.
Allowing the appeals, the Court
HELD: 1. The testimony of PW-11 is established and
inspires full confidence, it is well established that it is the accused
who were last seen with the deceased specially in the
circumstances when there is nothing on record to show that they
parted from the accused and since then no activity of the deceased
can be traced and their dead bodies were recovered later on. It
is a settled legal position that the law presumes that it is the
person, who was last seen with the deceased, would have killed
the deceased and the burden to rebut the same lies on the accused
to prove that they had departed.  Undoubtedly, the last seen theory
is an important event in the chain of circumstances that would
completely establish and/or could point to the guilt of the accused
with some certainty. However, this evidence alone can’t discharge
the burden of establishing the guilt of accused beyond reasonable
doubt and requires corroboration. [Para 18] [758-D-F]
2. Section 27 of the Evidence Act is applicable only if the
confessional statement leads to the discovery of some new fact.
The relevance is limited as relates distinctly to the fact thereby
discovered.  In the case at hand, the Camera which was recovered
at the instance of Accused No. 3 was not identified by the father
as well as the mother of the deceased.  In fact, the prosecution is
unable to prove that the said camera actually belongs to the
deceased.  Though the mobile phone is recovered from A-1, but
there is no evidence on record establishing the fact that the cell
phone belongs to the deceased or to PW-8 as the same was not
purchased in their name. Further, the prosecution failed to
examine the person on whose name the cell phone was purchased
to show that it originally belongs to PW-8 to prove the theory of
PW-8 that he had purchased and given it to the deceased.  Further,
the material objects, viz., phone and Motor Bike do not have any
bearing on the case itself.  The phone was recovered from
Accused No. 1 and it is not the case that it was used for the
commission of crime and similarly the motor cycle so recovered
was of the father of Accused No. 3 and no evidence has been
adduced or produced by the prosecution as to how these objects
have a bearing on the case.  In fact, none of the witnesses have
identified the camera or stated the belongings of deceased driver.
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