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2018 (10) TMI 2015 - SUPREME COURTMurder - case of circumstantial evidence - theory of last seen - last seen theory establishes the presence of the Appellant with the deceased at night - HELD THAT:- Normally this Court Under Article 136 of the Constitution, would be reluctant in appeal to interfere with the concurrent findings of two courts by reappreciating the facts and evidence. But in an appropriate case, if this Court finds that there has been erroneous consideration and appreciation of facts and evidence, leading to miscarriage of justice, this Court is duty bound to ensure that ultimately justice prevails. It is a well established principle of criminal jurisprudence that several Accused may go free, but an innocent person should not be punished. The essentials of circumstantial evidence stand well established by precedents and we do not consider it necessary to reiterate the same and burden the order unnecessarily. Suffice it to observe that in a case of circumstantial evidence the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the Accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the Accused. Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the Accused Under Section 106 of the Evidence Act, 1872 unless the prosecution first establishes a prima facie case. If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift to the Accused, and the benefit of doubt will have to be given. Unfortunately neither Trial Court nor the High Court considered it necessary to take notice of, much less discuss or observe with regard to the aforesaid defence by the Appellant Under Section 313 Code of Criminal Procedure to either accept or reject it. The defence taken cannot be said to be irrelevant, illogical or fanciful in the entirety of the facts and the nature of other evidence available as discussed hereinbefore. The complete non-consideration thereof has clearly caused prejudice to the Appellant. The entirety of the discussion, in the facts and circumstances of the case, the nature of evidence available coupled with the manner of its consideration, leaves us satisfied that the links in the chain of circumstances in a case of circumstantial evidence, cannot be said to have been established leading to the inescapable conclusion that the Appellant was the assailant of the deceased, incompatible with any possibility of innocence of the Appellant. The possibility that the occurrence may have taken place in some other manner cannot be completely ruled out. The Appellant is therefore held entitled to acquittal on the benefit of doubt. The acquittal is ordered - the Appellant is released from custody forthwith, unless wanted in any other case - appeal allowed.
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