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                                    REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 428-430  OF 2019 (Arising out of S.L.P. (Crl.) Nos.5530-5532 of 2015)

DIGAMBER VAISHNAV & ANR.      …APPELLANTS  

VERSUS

STATE OF CHHATTISGARH               …RESPONDENT

J  U  D  G  M  E  N  T

S.ABDUL NAZEER, J.

1. Leave granted.

2. These appeals have been preferred by  Digamber Vaishnav and

Girdhari  Vaishnav challenging  the  judgment  and  order  dated

30.04.2015 passed by the High Court of Chhattisgarh at Bilaspur, in

Criminal  Reference  No.3  of  2014,  affirming  the  death  sentence

imposed  by  the  Sessions  Judge,  Baloda  Bazar  and  dismissing  the

criminal  appeal  Nos.  536  of  2014  and  537  of  2014  filed  by  them

challenging the aforesaid judgment and order of the Sessions Judge.

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3. The prosecution story in brief is that the complainant,  Badridas

Vaishnav  lives  in  village  Khapridih.   He  is  a  retired  teacher.

Bhuneshwar was his brother.  Both were living in separate mohallas.

Bhuneshwar Das had two wives, namely, Shri Bai and Subhadra Bai.

From Shri Bai, Bhuneshwar had seven daughters.  From Subhadra

Bai, he had five daughters and a son.  Bhuneshwar Das had expired

two years back.    Mala, Kondi,  Chandni,  Nandini,  Sharda and son

Govinda  were  residing  in  the  house  apart  from  Shri  Bai  and

Subhadra.

4. On 17.12.2012, at about 4 p.m., Chandni came to the house of

PW-1, Badridas and informed him that  Shri  Bai,  Subhadra,  Kondi,

Amrika and Mala Bai are lying dead in the courtyard and in a room.

The  complainant  along  with  his  wife  Shanti  Bai  and  Chandni

immediately rushed to the house of Bhuneshwar and saw that Amrika

and Mala Bai were lying dead at parchhi and Shri Bai, Subhadra and

Kondi were lying dead in the room.  There was bleeding from the nose

and mouth of deceased and there were marks of injuries on the neck.   

5. The complainant lodged the report  of  the occurrence in Police

Outpost Gidhouri, where report (Exhibit P-6) was registered as per the

statement of the complainant which was registered as FIR in Crime

No.430/12  in  the  Police  Station  Bilaigarh.   Marg  intimations  of

Subhadra  Bai,  Shri  Bai,  Kondi,  Mala  Bai  and  Amrika  Bai  were

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registered as per the information given by Badridas. Witnesses were

summoned  for  the  examination  of  the  dead  body  of  the  deceased.

Panchanama of  the  deceased  was  prepared  in  the  presence  of  the

witnesses. The doctor submitted post-mortem reports after conducting

post-mortem  of  all  the  deceased.   The  cause  of  death  of  all  the

deceased  was  asphyxia  due  to  strangulation  and  the  deaths  were

homicidal in nature.  After post-mortem report, the dead bodies of all

the deceased persons were handed over to their relative Badridas for

cremation.   

6. The investigating officer drew the map of the place of occurrence

in the presence of the witnesses.  The police seized a bottle of Golden

Goa Whiskey (made of glass) and a plastic torch which were lying at

the place of occurrence.  Six strands of black hair stuck between the

fingers  of  right  hand  of  the  deceased  Kondi,  two  white  coloured

buttons lying between dead bodies, blood stained soil, plain soil and

one woolen shawl were also seized from the place of occurrence.  The

police also seized a shirt worn by the appellant No.1. Memorandum

statement of the accused Digamber was recorded as per his dictation

wherein he stated that he has kept the motorcycle at the house of

Girdhari and Rs.3000/- and anklet (pair patti) was kept in his house.

A sum of Rs.3000/- and anklet were seized after taking it out from the

pocket of trousers of Digamber. Memorandum statement of accused

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Girdhari  was  recorded  wherein  he  stated  that  he  has  concealed

Rs.2600/- and pair patti in carry bag at his house.  Cash and a pair

patti  kept  in  a  plastic  carry  bag  were  produced  by  the  accused

Girdhari  from inside  his  house  which were  seized.   Shirt  worn by

accused Digamber was removed and seized and one white coloured

shirt with two missing buttons was seized from the accused Girdhari.

Consent panchanama was prepared for taking the hair (of  head) of

accused Digamber and Girdhari and the hair (of head) of accused were

seized.  Seized articles were sent to the Forensic Science Laboratory.   

7. An application was made to finger print expert for examination of

finger prints on the wine bottle seized from the place of occurrence.

Report of Police Headquarter (Finger Prints) was received, according to

which finger prints of accused Digamber were found on the bottle of

Golden Goa Whiskey.  FSL Report regarding button of the shirt of the

appellants and the buttons seized from the place of occurrence was

also  received  wherein  two  buttons  and  threads  were  stated  to  be

similar.   

8. The  police  recorded  the  statement  of  PW-1,  Badridas,  Sheetal

Das, Smt. Shanti Bai, Kumari Chandni, PW-8, Anita Bai and Dan Bai,

Sohandas,  PW-9 under  Section 161 of  Cr.P.C.   After  completion of

investigation, chargesheet was filed in the court of Judicial Magistrate,

who committed the case to the Sessions Court.   

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9. In  order  to  prove  their  case,  the  prosecution  examined  14

witnesses.  The appellants were also examined under Section 313 of

the Cr.P.C. wherein they pleaded that they are innocent and have been

falsely implicated in the offence.

10. The Sessions Court by its judgment dated 14.05.2014 came to

the conclusion that prosecution has successfully proved beyond doubt

that  the  appellants  have  committed  robbery  in  the  house  of  the

deceased persons and committed murder of all the five ladies.  Each of

the  appellants  was  sentenced  with  R.I.  for  ten  years  and  fine  of

Rs.500/-, in default of payment of fine, they will further undergo one

month's R.I. for the offence under Section 394 read with Section 34 of

IPC. They were also sentenced with capital punishment for the offence

under Section 302 read with Section 34 IPC and ordered that they will

be hanged till death.

11. The Death Reference under Section 366(1) of the Cr.P.C. was sent

to the High Court for confirmation.  The appellants preferred separate

appeals before the High Court.  As noticed above, the High Court by

its judgment dated 30.04.2015 affirmed the judgment of the Sessions

Court.  

12. Appearing for the appellants Sh. S. Nagamuthu, learned senior

counsel has mainly contended that there was an unexplained delay in

reporting the offence.  Secondly, the courts below have mainly relied

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on the testimony of PW-8.  PW-8 is a child witness who was present in

the house at the time of the incident.  She is not a witness to the

actual incident.  Her testimony has not been corroborated.  Therefore,

it is risky to rely on uncorroborated identification of the appellants at

her instance.  It is further argued that the evidence of recoveries made

under Section 27 of the Indian Evidence Act is also unreliable.  The

recovery  of  motorcycle  is  also  unreliable  and  that  the  articles

recovered are not connected to the crime.   The testimony of PW-9 is

hearsay  and cannot  be  relied  upon by  the  prosecution.   Even the

finger print report cannot be relied on. Finally, he submits that the

evidence of last seen is insufficient to establish the guilt.

13. On the other hand, Sh. Atul Jha, learned counsel appearing for

the respondent, has supported the judgment of the courts below.  He

prays for dismissal of the appeals.

14. We  have  carefully  considered  the  submissions  of  the  learned

counsel made at the Bar and perused the materials placed on record.

15. One of the fundamental principles of criminal jurisprudence is

undeniably that the burden of proof squarely rests on the prosecution

and that the general burden never shifts.  There can be no conviction

on the basis of surmises and conjectures or suspicion howsoever grave

it  may be.   Strong suspicion,  strong coincidences and grave doubt

cannot  take the  place of  legal  proof.   The onus of  the prosecution

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cannot  be  discharged  by  referring  to  very  strong  suspicion  and

existence of  highly  suspicious factors to inculpate  the accused nor

falsity of defence could take the place of proof which the prosecution

has to establish in order to succeed, though a false plea by the defence

at  best,  be  considered  as  an  additional  circumstance,  if  other

circumstances unfailingly point to the guilt.   

16. This Court in Jaharlal Das v. State of Orissa, (1991) 3 SCC 27,

has held  that  even if  the  offence  is  a shocking  one,  the  gravity  of

offence cannot by itself overweigh as far as legal proof is concerned.  In

cases  depending  highly  upon  the  circumstantial  evidence,  there  is

always a danger that the conjecture or suspicion may take the place of

legal  proof.  The  court  has  to  be  watchful  and  ensure  that  the

conjecture and suspicion do not take the place of  legal proof.  The

court must satisfy itself  that various circumstances in the chain of

evidence should be established clearly and that the completed chain

must be such as to rule out a reasonable likelihood of the innocence of

the  accused.   In  order  to  sustain  the  conviction  on  the  basis  of

circumstantial  evidence,  the  following  three  conditions  must  be

satisfied:

i.) the  circumstances  from  which  an  inference  of  guilt  is sought  to  be  drawn,  must  be  cogently  and  firmly established;

ii.) those  circumstances  should  be  of  a  definite  tendency unerringly pointing towards the guilt of the accused; and

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iii.) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.

17. In Varkey Joseph v. State of Kerala, 1993 Suppl (3) SCC 745,

this  Court  has  held  that  suspicion is  not  the  substitute  for  proof.

There is a long distance between 'may be true' and 'must be true' and

the prosecution has to  travel  all  the  way to  prove its  case beyond

reasonable doubt.  

18. In  Sujit  Biswas  v. State of  Assam, (2013)  12 SCC 406,  this

Court,  while  examining  the  distinction  between  'proof  beyond

reasonable doubt' and 'suspicion' has held as under:

"13. Suspicion, however grave it  may be, cannot take the place of proof, and there is a large differ- ence between something that “may be” proved, and something that “will be proved”. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large, and divides vague conjectures from sure conclusions.  In a criminal case,  the  court  has  a  duty  to  ensure  that  mere conjectures or suspicion do not take the place of legal proof.  The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and unimpeachable evidence pro- duced  by  the  prosecution,  before  an  accused  is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between “may be” true and “must be” true, the court must maintain the vital

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distance between mere conjectures and sure con- clusions to be arrived at, on the touchstone of dis- passionate  judicial  scrutiny,  based upon a  com- plete  and  comprehensive  appreciation  of  all  fea- tures of the case, as well as the quality and credi- bility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so de- mand, then the benefit of doubt must be given to the  accused,  keeping  in  mind that  a  reasonable doubt is not an imaginary, trivial or a merely prob- able doubt,  but a fair  doubt that is based upon reason and common sense".

19. It is also well-settled principle that in criminal cases, if two views

are possible on evidence adduced in the case, one binding to the guilt

of the accused and the other is to his innocence, the view which is

favourable to the accused, should be adopted.  This principle has a

special relevance in cases wherein the guilt of the accused is sought to

be established by circumstantial evidence [See  Kali Ram v. State of

Himachal Pradesh, (1973) 2 SCC 808].

20. Bearing  these  principles  in  mind,  we  shall  now  consider  the

contentions of the learned counsel for the parties.  In coming to the

conclusion  that  the  accused  have  committed  the  offence,  the

prosecution  has  relied  on  (i)  Testimony  of  child  witness  Kumari

Chandni  (PW8);  (ii)  The  recoveries  made  under  Section  27  of  the

Evidence Act; (iii) The fingerprint report; (iv) FSL report; (v) Motive of

committing robbery; and (vi) Evidence of last seen together.

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21. The case of the prosecution is mainly dependent on the testimony

of Chandni, the child witness, who was examined as PW-8.  Section

118 of the Evidence Act governs competence of the persons to testify

which also includes a child witness.  Evidence of the child witness and

its credibility could depend upon the facts and circumstances of each

case.   There is no rule of practice that in every case the evidence of a

child  witness  has  to  be  corroborated  by  other  evidence  before  a

conviction  can  be  allowed  to  stand  but  as  a  prudence,  the  court

always finds it desirable to seek corroboration to such evidence from

other reliable evidence placed on record.  Only precaution which the

court  has  to  bear  in  mind while  assessing  the  evidence  of  a  child

witness is that witness must be a reliable one.

22. This Court has consistently held that evidence of a child witness

must  be  evaluated  carefully  as  the  child  may  be  swayed  by  what

others tell  him and he is  an easy prey to tutoring.   Therefore,  the

evidence of a child witness must find adequate corroboration before it

can be relied upon. It is more a rule of practical wisdom than law. [See

Panchhi and others v. State of U.P, (1998) 7 SCC 177, State of U.P.

v.  Ashok  Dixit  and  another,  (2000)  3  SCC  70,  and  State  of

Rajasthan v. Om Prakash, (2002) 5 SCC 745].

23. In  Alagupandi  alias  Alagupandian v.  State  of  Tamil  Nadu,

(2012) 10 SCC 451, this Court has emphasized the need to accept the

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testimony of a child with caution after substantial corroboration before

acting upon it.  It was held that:

"36. It  is  a  settled  principle  of  law that  a  child witness  can  be  a  competent  witness  provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The court in such circumstances can safely rely upon the statement of a child witness and it can form the  basis  for  conviction  as  well.  Further,  the evidence of a child witness and credibility thereof would  depend  upon  the  circumstances  of  each case. The only precaution which the court should bear  in  mind  while  assessing  the  evidence  of  a child witness is that the witness must be a reliable one  and  his/her  demeanour  must  be  like  any other competent witness and that there exists no likelihood  of  being  tutored.  There  is  no  rule  or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence  the  court  always  finds  it  desirable  to seek  corroboration  to  such  evidence  from  other reliable  evidence placed on record.  Further,  it  is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable."  

24. It  is  clear  from  the  testimony  of  PW-8  that  she  is  not  an

eyewitness to the incident. She was aged about 9 years at the time of

the incident.  Her evidence is fraught with inconsistencies. None of the

other  witnesses  have  identified  the  appellants.   Therefore,  heavy

reliance was placed on the testimony of PW-8.  She did not tell PW-1,

Badridas about the appellants while disclosing about the incident for

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the first time. This is reflected from the FIR which has been registered

against unknown persons.  In such circumstances, it is risky to rely

on the uncorroborated identification of the appellants at the instance

of  PW-8,  who  has  not  disclosed  about  the  appellants  at  the  first

instance before PW-1 Badridas.   

25. Shanti Bai, PW-3, wife of PW-1 has stated that PW-8 informed

her that her mother had gone to work.  This is in direct contradiction

with the fact that as per the prosecution story, she was lying dead.

Chandni herself states that in the morning, she saw her grandmother

dead.  Further, FIR records Badridas as saying that Chandni told him

that Subhadra Bai is lying dead in her room.

26. The  testimony  of  PW-8  also  contradicts  with  that  of  PW-10.

PW-10 states  that  herself  and Anita  had gone to  the  house of  the

deceased at 3 A.M. and had seen the bodies of the deceased and also

the children.  However, PW-8 states that she got up at 7.00 A.M. and

that wife of Tekram (Anita) opened the door.   

27. The testimony of PW-8 also contradicts that of PW-1, Badridas.

According to PW-1, he was informed about the incident only at about

2 to 2.30 P.M. by Chandni.  However, PW-8 states that "It is correct to

suggest that in the morning, I had told Badridas that who had killed

them.  I did not know them."

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28. At  this  stage,  it  is  relevant  to  notice  that  there  was  an

unexplained delay in reporting the crime, as rightly pointed out by the

learned senior counsel for the appellants.  PW-8 in her deposition has

stated that when she woke up in the morning, her room was locked

from outside.  When she shouted from inside, wife of Tekram (Anita)

opened the door.  This version is further corroborated by PW-10, Dan

Bai, who has stated that in the morning at about 3 a.m. on Monday

that  Anita  had opened the  door  of  their  house  from outside.   The

children were inside the room. Amrika Bai, Kondi, Subhadra Bai and

Shri Bai were lying dead.  Though, Anita had opened the door at about

3 a.m., it is unexplained why PW-8 did not inform anyone till 4 pm

and the same was also unreported by PW-10, even though the police

station was at  a distance of  some six kilometers.   This  also raises

question about veracity of the statement of PW-8, Chandni.

29. The second circumstance relied upon by the prosecution is the

evidence of recovery.  Under Section 27 of the Indian Evidence Act, it

is not the discovery of every fact that is admissible but the discovery of

relevant  fact  is  alone  admissible.   Relevancy  is  nothing  but  the

connection or the link between the facts discovered with the crime.

The  recovery  of  the  motorcycle  is  sought  to  be  relied  upon  as  a

circumstance against  the appellants.  There is  nothing on record to

show that the motorcycle recovered at the instance of appellant No.1,

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belongs to him. PW-13, IO, in his cross-examination admits that he

does  not  know  whether  the  appellant  No.1  is  the  owner  of  the

motorcycle.  He further admits that no attempts were made by him to

enquire about the owner of the vehicle.   

30. Testimony of PWs 4 and 5 is also unreliable since it contradicts

that of PW-10.  As per PW-10, herself and Anita had seen the bodies of

the deceased at 3 a.m. She did not see the assailants and does not

mention anything about the motorcycle. Hence, there is no occasion

for the assailants of the deceased to remain in the house and hence

the motorcycle would not be outside the house of the deceased at 4

p.m. PWs 4 and 5 contradict each other.  While PW-4 states that the

motorcycle was of Bajaj Company, PW-5 mentions it as a motorcycle

from Hero Honda Company.  PW-5 in his examination-in-chief says

that  he  had  moved  the  motorcycle  to  allow  the  tractor  to  pass.

However, in his cross-examination, he says that he did not move the

motorcycle and it was PW-4, who moved it.  PW-5 does not even state

the day or month when he saw the motorcycle.   

31. PW-2 was the witness to the seizure of the motorcycle. According

to him, the motorcycle was red in colour.  However, as per the seizure

memo, the recovered motorcycle was black in colour.  This makes the

recovery of the motorcycle unreliable.  It is relevant to state that the

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police recorded the statement of PWs 4 and 5 after delay of over two

months.  

32. Coming to the recovered articles, the silver-patti recovered at the

instance  of  the  appellants,  is  alleged  to  have  been  that  of  the

deceased-Shri Bai.  However, no witness identifies the silver-patti as

belonging to any of the deceased.  PW-2 states that "the type of anklet

that  was  seized"  is  easily  available  in  the  market.   Hence,  in  the

absence of any identification of the seized anklet, no reliance can be

placed on its recovery.  The evidence of Rajesh Vaishnav, PW-2, who is

the witness to the seizure memo, is contrary to the memos brought on

record.  The witness deposes that the statements of the accused were

recorded thrice,  i.e.  in Gidhauri  Chowk,  Khapridih and Barbhatha.

Moreover, he states that the seizures from appellant No.2 took place in

Kharri village and the memorandum of procedure took place in the

station.  This is in direct contradiction with the seizure memo, which

states that seizures have taken place in Barbhatha.   

33. The cash has not been traced back to the deceased as the box

from which articles were allegedly stolen has not been recovered or

seen by any witness.  Even in the FIR, there is no averment of any

article  or  money  being  stolen  or  lost.  Therefore,  when  the  money

allegedly recovered is being sought to be relied upon as stolen from the

house of the deceased, the same is unreliable when there is nothing

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on record to support the claim of theft or robbery from the scene of

crime.

34.  Chandni,  PW-8 has deposed that wife of  Tekram (Smt. Anita)

had opened the door at 3.00 A.M.  She has not been examined by the

prosecution  and  no  reasons  have  been  assigned  to  explain  this

anomaly.   Considering  the  conflicting  statements  of  the  witnesses

examined by the prosecution, Anita would be in a position to have

seen the appellants at the house around 3 A.M.  She would have been

the first person to have seen the deceased persons and deposed about

the circumstances after  the incident.   It  is  also relevant that  there

were  other  three  children  present  in  the  house  at  the  time  of  the

incident.   No  attempts  have  been  made  to  examine  them as  well.

Thus, the best evidence which would have been thrown light on the

controversy in question has been withheld.  

35. Sohandas,  PW-9  has  been  relied  on  for  corroborating  the

testimony of Chandni, the child witness.  Reliance has been placed on

her  witness  to  show  the  presence  of  the  appellants  at  the  house.

Sohandas  had deposed  only  on the  basis  of  a  telephone  call  from

Amrika Bai that Digamber has come to see Kondi.  PW-9 does not

know the name of Ghirdhari.  He has referred to a boy accompanying

appellant No.1, which is not sufficient to show the acquaintance.  He

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has not seen the appellants coming into the house.  Therefore, his

evidence is not sufficient to place the appellants at the scene of crime.

36. The expert, who examined the articles at the place of occurrence

and found some finger prints, has not been examined.  The person

who took the sample finger prints has not been examined.  The finger

prints had been lifted on 17.12.2012 whereas the articles were seized

on 18.12.2012.   There is no explanation about why the articles were

just left at the scene after developing the finger prints and why they

were not seized and sent for analysis on the same day.  Further, no

prints  have  been  found  on  the  doors  or  the  steel  almirah  to

substantiate  the  robbery.   The  examination  of  expert  is  crucial

especially if reliance is placed on the finger print report to suspect the

guilt of the appellant.  PW-12, Panch witness to the seizure of bottles

states that the bottle was "lying near the door of the courtyard was

seized."  This makes the process of the lifting the print suspicious.

37. The shirt of appellant No. 2 recovered from him in pursuance of

his  statement  under  Section  27  of  the  Evidence  Act  is  allegedly

matched with the small broken button found at the scene of crime.

This  has  been  relied  upon  by  the  courts  below  as  another

circumstance  to  corroborate  the  presence  of  the  appellants  at  the

scene of crime.  However, there is nothing on record to show that the

shirt is unique and cannot be matched with the shirt of  any other

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person.  PW-13 has admitted in his testimony that shirts of the same

kind are easily  available  in the market.   In such circumstances,  it

cannot be conclusively proved that the shirts are in any way unique to

the 'appellants' shirt to the exclusion of everyone else.  Therefore, the

reliance placed with analysis of the shirt in the absence of any unique

make thereof is improper.

38. The  forensic  evidence  against  the  appellants  to  prove  their

presence at the scene of crime is insufficient.  The findings of the hair

analysis  are  also  inconclusive.   The  report  only  concluded  the

specimen  to  the  human  hair.   The  same  is  not  sufficient  to

substantiate the presence of the appellants.

39. The  prosecution  has  alleged  robbery  as  motive  for  the

commission of the offence.  It is sought to be sustained by the recovery

of some cash and a pair of silver patti that has not been identified by

any witness.  The site plan panchanama shows that gold ornaments,

pearl necklace, silver ornaments, etc. were left behind on the person of

the deceased.  It is not explained as to why appellants would intend to

commit robbery but leave expensive ornaments behind.   The entire

motive of robbery is negated if these facts are considered as it seems

implausible that persons with an intent to commit robbery would leave

without precious ornaments that were on the person of the deceased.

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This has unsubstantiated the entire motive for the commission of the

offence, as alleged by the prosecution.

40. The prosecution has relied upon the evidence of PW-8 to show

that the accused and victims were last seen together.  It is settled that

the circumstance of last seen together cannot by itself form the basis

of holding accused guilty of offence.  If there is any credible evidence

that just before or immediately prior to the death of the victims, they

were last seen along with the accused at or near about the place of

occurrence,  the  needle  of  suspicion  would  certainly  point  to  the

accused being the culprits and this would be one of the strong factors

or circumstances inculpating them with the alleged crime purported

on the victims.  However, if the last seen evidence does not inspire the

confidence  or  is  not  trust  worthy,  there can be  no conviction.   To

constitute  the  last  seen  together  factor  as  an  incriminating

circumstance,  there  must  be  close  proximity  between  the  time  of

seeing and recovery of dead body.

41. In  Arjun Marik & Ors.  v.  State of Bihar,  1994 Supp (2) SCC

372, it has been held as under:-

"31. Thus the evidence that the appellant had gone to Sitaram in the evening of  19-7-1985 and had stated  in  the  night  at  the  house  of  deceased Sitaram is very shaky and inconclusive.  Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased.  But  it

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is  settled law that  the  only  circumstance of  last seen will not complete the chain of circumstances to record the finding that it is consistent only with the  hypothesis  of  the  guilt  of  the  accused  and, therefore, no conviction on that basis alone can be founded".   

 42. In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC, 715, the

Court has reiterated that the last seen together does not by itself lead

to the inference that it was the accused who committed the crime.  It

is held thus:  

"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing con- nectivity between the accused and the crime. Mere non-explanation on the  part  of  the appellant,  in our  considered  opinion,  by  itself  cannot  lead  to proof of guilt against the appellant".

43. PW-8 in her evidence has stated that the accused had come one

day before  in  the  night,  and next  day,  Amrika,  Mala,  Badi  Amma,

Amma and Kondi Didi had died.  She is a child witness.  We have

already noticed that she has not witnessed the incident.  PW-1 in his

evidence says that PW-8 had come to his house at 2.00 to 2.30 P.M.

and informed him about the death of the deceased persons.  PW-8 has

not disclosed the identity of the appellants to PW-1.  That is why the

FIR was registered against unknown persons.  We have also noticed

the inconsistencies in her evidence apart from the fact that the other

children present in the house on that day were not examined.  There is

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a substantial loss of time from when PW-8 saw the deceased and the

appellants together on 16.12.2012 and when the deceased were found

on  17.12.2012.   In  such  circumstances,  it  is  difficult  to  draw  an

inference that the appellants had committed the crime.

44. In view of the above, the appeals succeed and are allowed.  The

judgment  and  order  passed  by  the  High  Court  of  Chhattisgarh  at

Bilaspur dated 30.04.2015 in Criminal Reference No.3 of 2014 and

Criminal  Appeal Nos. 536 of 2014 and 537 of 2014 are hereby set

aside.  The  judgment  and  order  dated  14.05.2014  passed  by  the

Sessions Judge, Baloda Bazar, Chhattisgarh in Sessions Case No.5 of

2014 is also set aside. The appellants/accused are hereby acquitted

for the offences for which they were tried and they shall be released

forthwith, unless required in any other case/cases.

…………………………………J.     (A.K. SIKRI)  

   …………………………………J.     (S. ABDUL NAZEER)

…………………………………J.     (M.R. SHAH)

New Delhi; March 5, 2019.