A three-judges Bench of the Supreme Court consisting of Justices L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna held that there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and it must be such as to show that within all human probabilities, the act must have been done by the accused.
Facts
Gudiya Parveen (PW-1) w/o Mohd. Armaan (PW-2) resided years. At about 10.00 am, on 24th February 2016, she had gone downstairs to wash clothes. At that time, she called her husband for bathing the victim. Her husband told her that the victim had gone downstairs to play. PW1 then went upstairs and told her husband that the victim was not downstairs. Thereafter, PW2 and she started looking for the victim, but the victim was not found anywhere. Since the victim could not be found, PW1 went to Jutemill Police Station and lodged a report of the victim going missing. They continued the search and ultimately returned to their house at around 03.0004.00 am in the morning. Mohd. Sahid alias Raju Khan (PW3) told her that appellant- Lochan Shrivas, a resident of D15 in the same building had said that if they would allow him to conduct a worship, he could find their child in an hour. Therefore, they agreed to conduct the worship. After the worship, the appellant informed them that the child was tied and kept inside a sack in the bushes near a pole beside the road in Amlibhauna. On this, PW1 and other prosecution witnesses developed a suspicion, and as such, PW3 informed the police. The police interrogated the appellant, who confessed his crime before them. Thereafter, on a memorandum u/s 27 of the Indian Evidence Act, 1872 (the “Evidence Act”), a sack from the bushes was recovered wherein the dead body of the deceased soaked in blood was found.
Procedural History
Based on the oral report of PW1, an FIR came to be registered for the offence punishable under Section 363 of the IPC. After completion of investigation, a chargesheet came to be filed before the trial judge for the offences punishable u/s 363, 376, 377, 302, 201 of the IPC and Section 6 of the POCSO Act. Charges came to be framed for the offences punishable u/s 363, 376(2)(i), 377, 201, 302 read with Section 376A of the IPC and Section 6 of the POCSO Act. The accused pleaded to be not guilty and claimed to be tried. At the conclusion of the trial, the trial judge recorded the aforesaid order of conviction and sentence. Being aggrieved thereby, an appeal was preferred by the appellant and a reference was made by the trial judge u/s 366 of the CrPC. By the impugned judgment and order, the High Court dismissed the appeal filed by the appellant and confirmed the death sentence. So, the present appeals.
Contentions made
Appellant: The present case is based on circumstantial evidence. The prosecution utterly failed to establish the incriminating circumstances thereby failing to establish the chain of events which lead to no other conclusion than the guilt of the accused. There are many missing links in the prosecution case, and as such, the judgment and order of conviction as recorded by the trial judge and confirmed by the High Court is not sustainable in law. The recovery is from an open place accessible to one and all, hence of no assistance to the prosecution case. The Prosecution has failed to establish the link between the recovered materials and the crime. The constable had gone to the spot from where the body of the victim was alleged to have been recovered at around 06.00 am. It is thus clear that the police were already aware about the place from where the body was alleged to have been recovered on a memorandum under Section 27 of the Evidence Act. He submitted that the alleged recovery (circumstance of finding human blood on the said nails) is at around 08.00 am which are not the business hours, and as such, the very evidence regarding photography and videography becomes doubtful. appellant was not given an opportunity of meaningfully defending the case. the death penalty would not be warranted in the facts of the present case. the trial court as well as the High Court has not taken into consideration the socioeconomic background of the appellant so also the possibility of the appellant being reformed or rehabilitated.
Respondent: The prosecution proved all the incriminating circumstances beyond reasonable doubt and established the link of proved circumstances, which leads to no other conclusion than the guilt of the accused. The appellant committed a heinous act of rape on a minor girl and then brutally killed her, and as such, it for no other penalty than the death penalty.
Observations of the Court
The Bench observed that it has been held in a catena of decisions by the apex court in a case of circumstantial evidence, before the case can be said to be fully established against an accused, it is necessary that the circumstances from which the conclusion of guilt is to be drawn, should be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. They should exclude every hypothesis except the one to be proved. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities, the act must have been done by the accused The Court then went on to consider the evidence provided. Regarding the defence on the ground that the same is from an open place, accessible to one and all, it was observed that this Court has held that what is relevant is not whether the place was accessible to others or not, but whether it was ordinarily visible to others. If the place at which the article hidden is such where only the person hiding it knows until he discloses to others, then it will be immaterial whether the concealed place is accessible to others. The said information regarding the location of the body was registered in the Rojnamcha at around 06.10 am. What is stated by this witness is that she went to Amlibhauna which is a locality. However, that by itself would not be sufficient to conclude that the police already knew about the place from where the dead body was recovered. The Bench observed that:
“The evidence of a witness cannot be read in piecemeal. The evidence must be read as a whole. If the evidence of this witness is read as a whole, the attack on her evidence is not justified.”
The Bench went on to observe that:
“We are therefore of the considered view that the prosecution has proved beyond reasonable doubt that the recovery of the dead body of the deceased on the memorandum of the appellant u/s 27 of the Evidence Act, was from a place distinctly within the knowledge of the appellant. It is the first offence committed by the appellant. No doubt, a heinous one. The appellant is not a hardened criminal. It therefore cannot be said that there is no possibility of the appellant being reformed and rehabilitated foreclosing the alternative option of a lesser sentence and making imposition of death sentence imperative.”
Judgment
The judgment and order of conviction for the offences punishable u/s 363, 366, 376(2)(i), 377, 201, 302 read with Section 376A of the IPC and Section 6 of the POCSO Act was maintained. However, the death penalty imposed on the appellant under Section 302 IPC was commuted to life imprisonment.
Case Name: Lochan Shrivas vs The State of Chhattisgarh
Citation: Criminal Appeal Nos. 499-500 of 2018
Bench: Justice L. Nageswara Rao, Justice B.R. Gavai, Justice B.V. Nagarathna
Decided on: 14th December 2021
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