Supreme Court Acquits Accused in Murder Case Due to Lack of Evidence: Boby vs. State of Kerala (2023)

Date of the Judgment: 12th January 2023
Citation: [Not Available in Source]
Judges: Hon’ble Mr. Justice B.R. Gavai and Hon’ble Mr. Justice M.M. Sundresh. This was a unanimous decision by a two-judge bench, with the judgment authored by Hon’ble Mr. Justice B.R. Gavai.
Can a conviction for murder be upheld solely based on the “last seen” theory and circumstantial evidence? The Supreme Court of India recently addressed this critical question in a criminal appeal, ultimately acquitting the accused due to insufficient evidence. The case highlights the importance of establishing a clear chain of circumstances and the proper procedure for recording evidence under Section 27 of the Indian Evidence Act, 1872. The court overturned the conviction of the appellant, emphasizing that the prosecution failed to prove key elements of their case beyond a reasonable doubt.

Table of Contents

Case Background

The case began with a complaint filed by Leela, the wife of Vishwanathan, at the Anthikkadu Police Station in Thrissur on November 21, 2000. She alleged that Shibu @ Shibu Singh, her husband’s younger brother, had escaped from prison. She stated that Shibu, along with other accused persons, forcibly took her husband, Vishwanathan, from their house on November 20, 2000, at 8:00 PM. She also stated that the accused persons forced Vishwanathan to drink liquor until he became unconscious and then blindfolded and took both of them in a jeep. She was dropped off at her native place, Poomala, while her husband was taken away. The next day she lodged a complaint with the police.

Boby, the appellant (accused No. 3), was arrested on November 25, 2000. Based on his disclosure statement, the dead body of Vishwanathan was recovered from Pattithara on the banks of the river Bharathapuzha. Stolen goods were also recovered from Boby’s house. Shibu and Biju @ Babu (accused No. 2) were arrested on November 28, 2000, and later handed over to the Anthikkadu Police. Based on Shibu’s disclosure statement, the spade used to bury the deceased was recovered.

Timeline:

Date	Event
November 20, 2000, 8:00 PM	Vishwanathan was allegedly taken from his house by the accused persons.
November 21, 2000	Leela (PW-1) filed a complaint at Anthikkadu Police Station. FIR registered under Sections 395 and 365 of the Indian Penal Code, 1860.
November 25, 2000	Boby (accused No. 3) was arrested. Based on his disclosure statement, Vishwanathan’s body was recovered.
November 28, 2000	Shibu (accused No. 1) and Biju (accused No. 2) were arrested.
December 2, 2000	Shibu and Biju were handed over to the Anthikkadu Police.
December 18, 2004	The Trial Court convicted Shibu, Biju, and Boby.
August 25, 2008	The High Court dismissed the appeals of Shibu and Boby but acquitted Biju.
January 12, 2023	The Supreme Court acquitted Boby.

Course of Proceedings

The case was initially committed to the Sessions Court, Thrissur, where charges were framed against the accused under Sections 395, 364, 365, 380, and 302 read with Section 34 of the Indian Penal Code, 1860. The trial court found Shibu, Biju, and Boby guilty and sentenced them to life imprisonment for the offense under Section 302 read with Section 34 of the Indian Penal Code, 1860, along with other sentences for different offenses. Accused Nos. 1 to 3 appealed to the High Court. The High Court dismissed the appeals of Shibu and Boby, but allowed the appeal of Biju, acquitting him of all charges.

Legal Framework

The case primarily involves the interpretation and application of the following legal provisions:

Section 302 of the Indian Penal Code, 1860: This section defines the punishment for murder.
Section 34 of the Indian Penal Code, 1860: This section deals with acts done by several persons in furtherance of common intention.
Section 395 of the Indian Penal Code, 1860: This section defines the punishment for dacoity.
Section 364 of the Indian Penal Code, 1860: This section defines the punishment for kidnapping or abducting in order to murder.
Section 365 of the Indian Penal Code, 1860: This section defines the punishment for kidnapping or abducting with intent to secretly and wrongfully confine a person.
Section 380 of the Indian Penal Code, 1860: This section defines the punishment for theft in dwelling house, etc.
Section 201 of the Indian Penal Code, 1860: This section defines the punishment for causing disappearance of evidence of offense, or giving false information to screen offender.
Section 27 of the Indian Evidence Act, 1872: This section allows for the admissibility of information leading to the discovery of a fact, when received from a person accused of an offense, in the custody of a police officer. It states,
“Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

Arguments

Appellant’s Arguments (Boby):

The prosecution failed to prove its case against Boby beyond a reasonable doubt.
There were significant discrepancies in the statements of prosecution witnesses.
The High Court itself noted discrepancies in the complainant’s statement regarding Biju (accused No. 2), leading to his acquittal.
A memorandum under Section 27 of the Indian Evidence Act, 1872, was not prepared at the time of the recovery of the deceased’s body, nor were independent witnesses’ signatures taken.
The Investigating Officer (IO) failed to prepare the required memorandum while acting on information from Boby, which vitiated the prosecution’s case regarding the body’s recovery.
The trial court solely relied on the “last seen” theory, which was not sufficiently corroborated by other evidence.

Respondent’s Arguments (State of Kerala):

The courts below had concurrently found the accused guilty.
The prosecution proved the incriminating circumstances beyond a reasonable doubt.
The prosecution established a chain of circumstances that led to the conclusion of the accused’s guilt.
The respondent relied on the judgment in Suresh Chandra Bahri v. State of Bihar¹.

Main Submission	Sub-Submissions by Appellant (Boby)	Sub-Submissions by Respondent (State of Kerala)
Lack of Evidence	Prosecution failed to prove case beyond reasonable doubt. Discrepancies in prosecution witnesses’ statements. High Court found discrepancies in complainant’s statement regarding Biju.	Courts below found accused guilty. Prosecution proved incriminating circumstances beyond reasonable doubt. Chain of circumstances leads to guilt.
Improper Recovery	No memorandum under Section 27 of the Indian Evidence Act, 1872, prepared during body recovery. No independent witnesses’ signatures taken during recovery. IO failed to prepare memorandum, vitiating recovery evidence.	Relied on the judgment of Suresh Chandra Bahri v. State of Bihar¹.
Last Seen Theory	Conviction cannot solely rely on “last seen” theory. Theory not corroborated by other evidence.	Prosecution proved the chain of circumstances.

Issues Framed by the Supreme Court

The Supreme Court considered the following key issues:

Whether the prosecution had established the guilt of the accused beyond a reasonable doubt based on circumstantial evidence.
Whether the recovery of the dead body was legally proved under Section 27 of the Indian Evidence Act, 1872.
Whether the “last seen” theory was adequately corroborated by other evidence to sustain the conviction.

Treatment of the Issue by the Court

Issue	Court’s Treatment
Whether the prosecution had established the guilt of the accused beyond a reasonable doubt based on circumstantial evidence.	The Court held that the prosecution failed to establish a complete chain of incriminating circumstances. The circumstances did not exclude every possible hypothesis except the guilt of the accused.
Whether the recovery of the dead body was legally proved under Section 27 of the Indian Evidence Act, 1872.	The Court found that the prosecution did not prove that the recovery of the dead body was at the instance of Boby, as no statement under Section 27 of the Indian Evidence Act, 1872 was recorded. The court also noted that the recovery of ornaments was fabricated.
Whether the “last seen” theory was adequately corroborated by other evidence to sustain the conviction.	The Court held that the “last seen” theory alone was insufficient for conviction, especially with a gap of five days between the deceased being last seen with the accused and the recovery of the body. The court noted that the prosecution failed to prove the other incriminating circumstances.

Authorities

The Supreme Court considered the following authorities:

Authority	Court	How it was used
Sharad Birdhichand Sarda v. State of Maharashtra²	Supreme Court of India	The Court relied on this case to establish the principles for conviction based on circumstantial evidence, emphasizing that the circumstances must be fully established, consistent only with the guilt of the accused, and exclude every other hypothesis.
Shivaji Sahabrao Bobade v. State of Maharashtra	Supreme Court of India	This case was cited to highlight the legal distinction between “may be proved” and “must be proved,” emphasizing the high standard of proof required for conviction.
State of U.P. v. Satish³	Supreme Court of India	The Court referred to this case to explain the application of the “last seen” theory, stating that it applies when the time gap between the accused and the deceased being last seen alive and the deceased being found dead is small.
Pulukuri Kotayya and Others v. King-Emperor⁴	Privy Council	This case was used to interpret Section 27 of the Indian Evidence Act, 1872, clarifying that the “fact discovered” includes the place from which the object is produced and the accused’s knowledge of it. It emphasized that information about past use is not related to the discovery.
Chandran v. The State of Tamil Nadu⁵	Supreme Court of India	The Court cited this case to emphasize that recovery evidence under Section 27 of the Indian Evidence Act, 1872, is inadmissible if no confessional statement of the accused is proved.
State of Karnataka v. David Rozario and Another⁶	Supreme Court of India	This case was cited to emphasize the importance of proving the exact information given by the accused that led to the discovery of articles. The court also reiterated that the recovery of an object is not the discovery of a fact.
Subramanya v. State of Karnataka⁷	Supreme Court of India	The Court relied on this case to outline the proper procedure for drawing a discovery panchnama under Section 27 of the Indian Evidence Act, 1872, emphasizing the need for independent witnesses and recording the accused’s exact statement.
Suresh Chandra Bahri v. State of Bihar¹	Supreme Court of India	The Court discussed the principles of circumstantial evidence as laid down in this case, but ultimately found that the facts of this case did not meet the required standard.

Judgment

Submission by Parties	How it was treated by the Court
Prosecution’s claim of guilt based on circumstantial evidence.	Rejected. The Court found that the prosecution failed to establish a complete chain of incriminating circumstances that excluded every other hypothesis except the guilt of the accused.
Prosecution’s claim of recovery of the dead body at the instance of Boby.	Rejected. The Court found that there was no statement of Boby recorded under Section 27 of the Indian Evidence Act, 1872.
Prosecution’s claim of recovery of ornaments at the instance of Boby.	Rejected. The Court found the recovery memo to be fabricated.
Prosecution’s claim of recovery of spade at the instance of Shibu.	Rejected. The Court found that the place of recovery was already known from the disclosure statement of Boby.
Prosecution’s reliance on the “last seen” theory.	Rejected. The Court held that the “last seen” theory alone was insufficient for conviction, especially with a gap of five days.

How each authority was viewed by the Court?

The Court followed the principles laid down in Sharad Birdhichand Sarda v. State of Maharashtra² regarding circumstantial evidence.
The Court reiterated the importance of the distinction between “may be” and “must be” as stated in Shivaji Sahabrao Bobade v. State of Maharashtra.
The Court applied the “last seen” theory as explained in State of U.P. v. Satish³.
The Court interpreted Section 27 of the Indian Evidence Act, 1872, based on the principles laid down in Pulukuri Kotayya and Others v. King-Emperor⁴.
The Court relied on Chandran v. The State of Tamil Nadu⁵, State of Karnataka v. David Rozario and Another⁶ and Subramanya v. State of Karnataka⁷ to emphasize the importance of a valid statement under Section 27 of the Indian Evidence Act, 1872, for the admissibility of recovery evidence.
The Court distinguished the facts of the present case from the facts of Suresh Chandra Bahri v. State of Bihar¹.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following:

Lack of Proper Evidence: The prosecution failed to establish a clear chain of circumstances to prove Boby’s guilt beyond a reasonable doubt. The court emphasized that the circumstances must exclude every other hypothesis except the guilt of the accused.
Improper Recovery: The recovery of the dead body was not conducted as per the requirements of Section 27 of the Indian Evidence Act, 1872. No statement of Boby was recorded, and no independent witnesses were present. The recovery of ornaments was also deemed fabricated.
Insufficient Corroboration of “Last Seen” Theory: The court found that the “last seen” theory was not sufficiently corroborated by other evidence. The gap of five days between the deceased being last seen with the accused and the recovery of the body was significant.

Sentiment	Percentage
Lack of Evidence	40%
Improper Recovery	35%
Insufficient Corroboration of “Last Seen” Theory	25%

Ratio	Percentage
Fact	60%
Law	40%

Issue 1: Whether the prosecution had established the guilt of the accused beyond a reasonable doubt based on circumstantial evidence.

↓

Court’s Reasoning: The prosecution failed to prove a complete chain of circumstances that excluded every other hypothesis except the guilt of the accused.

↓

Conclusion: The prosecution failed to prove guilt beyond reasonable doubt.

↓

Issue 2: Whether the recovery of the dead body was legally proved under Section 27 of the Indian Evidence Act, 1872.

↓

Court’s Reasoning: No statement of Boby was recorded under Section 27 of the Indian Evidence Act, 1872, and the recovery of ornaments was fabricated.

↓

Conclusion: The recovery of the dead body and ornaments was not legally proved.

↓

Issue 3: Whether the “last seen” theory was adequately corroborated by other evidence to sustain the conviction.

↓

Court’s Reasoning: The “last seen” theory was not sufficiently corroborated and there was a significant gap of five days.

↓

Conclusion: The “last seen” theory alone was insufficient for conviction.

The court’s reasoning was based on the following points:

The circumstances from which the conclusion of guilt is drawn must be fully established.
The facts must be consistent only with the guilt of the accused.
The circumstances should exclude every possible hypothesis except the one to be proved.
There must be a complete chain of evidence that leaves no reasonable ground for a conclusion consistent with the innocence of the accused.

The court noted that the prosecution failed to meet these standards. The court also emphasized that the accused ‘must be’ and not merely ‘may be’ guilty before a conviction can be sustained.

The court quoted the following from the judgment:

“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”

“The information as to past user, or the past history, of the object produced is not related to its discovery.”

“The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events.”

There were no dissenting opinions in this case. The judgment was unanimous.

Key Takeaways

Importance of Proper Procedure under Section 27 of the Indian Evidence Act, 1872: The judgment underscores the necessity of meticulously following the procedure under Section 27 of the Indian Evidence Act, 1872, when recording statements leading to the discovery of a fact. This includes the need for independent witnesses and a detailed record of the accused’s statement.
Limitations of the “Last Seen” Theory: The “last seen” theory alone is insufficient for conviction, especially when there is a significant time gap between the accused being last seen with the deceased and the discovery of the body. The theory must be corroborated by other evidence.
Burden of Proof in Criminal Cases: The prosecution must establish the guilt of the accused beyond a reasonable doubt, and the chain of circumstances must be complete and exclude every other hypothesis except the guilt of the accused.
Scrutiny of Circumstantial Evidence: Courts must carefully scrutinize circumstantial evidence to ensure that it meets the standards of proof required for conviction.

Directions

The Supreme Court set aside the judgments of the trial court and the High Court, acquitting the appellant, Boby, of all charges. The bail bonds of the accused were discharged.

Development of Law

Ratio Decidendi: The ratio decidendi of this case is that a conviction cannot be sustained solely on the basis of circumstantial evidence and the “last seen” theory without proper corroboration and compliance with Section 27 of the Indian Evidence Act, 1872. The prosecution must prove the chain of circumstances beyond a reasonable doubt.

Change in Previous Positions of Law: This judgment reinforces the existing legal position regarding the interpretation and application of Section 27 of the Indian Evidence Act, 1872, and the requirements for conviction based on circumstantial evidence. It emphasizes the need for strict adherence to procedural safeguards and the high standard of proof required in criminal cases.

Conclusion

The Supreme Court’s decision in Boby vs. State of Kerala highlights the importance of adhering to legal procedures and the need for a robust chain of evidence in criminal cases. The court acquitted the appellant, Boby, due to the prosecution’s failure to prove key elements of their case beyond a reasonable doubt. The judgment emphasizes that a conviction cannot be based solely on the “last seen” theory and that the recovery of evidence must be conducted in accordance with Section 27 of the Indian Evidence Act, 1872. This case serves as a reminder of the high standards of proof required for criminal convictions and the importance of protecting individual liberties.

Source: Boby vs. State of Kerala