SHAILENDRA RAJDEV PASVAN AND OTHERS versus STATE OF GUJARAT ETC.

Citation: [2019] 14 S.C.R. 270 · Decided: 13-12-2019 · Supreme Court of India · Bench: N.V. RAMANA · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 6 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
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SHAILENDRA RAJDEV PASVAN AND OTHERS
v.
STATE OF GUJARAT ETC.
(Criminal Appeal Nos. 333-334 of 2017)
DECEMBER 13, 2019
[N. V. RAMANA, SANJIV KHANNA AND
KRISHNA MURARI, JJ.]
Penal Code, 1860 – ss.120-B, 302, 363, 364, 364-A, 365 –
Case based on circumstantial evidence – Approach of the Courts –
Case of the prosecution that on 4th Feb. 2001, as per routine, the
complainant-PW-1 left for work at 8:00 am and returned at 2:00
pm for lunch, when he noticed that his son aged about 9 years was
missing – PW-1 pointed out that initially appellant-accused no.1
joined the search but thereafter suddenly vanished – Upon
returning, allegedly, he made an extra-judicial confession
confessing that he kidnapped PW-1’s son at the behest of accused
no.5, who had animosity with PW-1 and that he made PW-1’s son sit
on his bicycle and took him to the railway station, where he was
handed over to appellant-accused nos.2 & 3 – Trial court acquitted
the appellants – Set aside by the High Court – On appeal, held:
There is no eye witness of the incident and the entire case is based
on circumstantial evidence and theory of last seen together – In a
case based on circumstantial evidence, the Courts ought to have
conscientious approach and conviction ought to be recorded only
in case all the links of the chain are complete pointing to the guilt
of the accused– In the present case, evidence of PW-28 and PW-29,
residing near the residence of the PW-1, who were crucial to the
case of prosecution to establish that deceased was last seen with
appellant no.-1, is riddled with unexplained contradictions – Thus,
the theory of last seen is rejected – Their evidence also becomes
shaky as they knew that PW-1’s son was missing since 4thFeb.2001
but did not inform PW-1 or the police about the presence and conduct
of the appellant no.1, despite being aware of the frantic search for
PW-1’s son post his disappearance – High Court failed to take into
account that there was huge time gap between the point when the
   [2019] 14 S.C.R. 270
270
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accused and deceased were last seen together and the time of death
– Further, PW-1 did not testify that he identified that the dead body
found was that of his son – Doubt is also created by the post-mortem
report which records that minimum age of the deceased was around
16 years while, PW-1’s son was 9 years of age –There are also
noticeable contradictions about the circumstances in which the
extra-judicial confession of the appellant no.1 was made –Evidence
adduced against the appellants do not form the complete chain
connecting them with the crime – Prosecution failed to prove the
guilt beyond doubt – Conviction and sentences of the appellants
set aside –Arms Act – s.21(1)(a) – Indian Explosives Act – ss.3, 5.
Criminal Law – Reversal of acquittal by the appellate court –
Presumption of innocence in favour of the accused – Held: Where
an appellate court is reversing trial court’s order of acquittal, it
should give proper weight and consideration to the presumption of
innocence in favour of the accused, and to the principle that such
a presumption stands “reinforced, reaffirmed, and strengthened by
the trial court”.
Evidence – Evidentiary value of extra-judicial confession –
Discussed.
Allowing the appeals, the Court
HELD : 1.1 There are material contradictions in the
testimonies of PW-28 and PW-29. The evidence of PW-28 and
PW-29 also becomes shaky as both of them knew that Arjun was
missing since 4th February 2001 but did not inform Paramhansh
(PW-1) or the police to the presence and conduct of the Appellant
No. 1, despite residing near the residence of the complainant
and being aware of the frantic search for Arjun post his
disappearance. This renders their testimony unreliable. Thus,
the theory of last seen fails and is rejected as a feeble and
untrustworthy evidence. PW-1) has not testified that he had
identified the dead body found in the agricultural farm was that of
his son. Minimum age of the deceased was recorded around 16
years. PW-1’s son on the other hand was 9 years of age. Thus,
the entire case of the prosecution is based on circumstantial
evidence. In a case which rests on circumstantial evidence, law
postulates two fold requirements:- (i) Every link in the chain of
SHAILENDRA RAJDEV PASVAN v. STATE OF GUJARAT ETC.
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the circumstances necessary to establish the guilt of the accused

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