# STATE OF GOA v. SANJA Y THAKRAN AND ANR

- **Citation:** [2007] 3 S.C.R. 507
- **Court:** Supreme Court of India
- **Decided:** 2007-03-02
- **Bench:** B.N. Agra Walandp.P. Naolekar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-goa-v-sanja-y-thakran-and-anr-22539
- **Pages:** 26

## Headnote

B
Constitution of India-Article I 36-Penal Code, I 860- Sections I 20B, 364, 302 and 392-Criminal Procedure Code, 1973--Section 313-Accused
charged of criminal conspiracy, abduction, murder and robbery on basis of C
circumstantial evidence-Accused last seen with deceased together-Recovery
of articles of deceased with accused-Tira! Court and High Court acquitting""'•,,
the acccused-Correctness of-Held, court in appeal can set aside the order
of acquittal only when the decision is perverse-On examination of evidence,
there was a considerable time gap between the persons last seen together
and the proximate time of crime-Prosecution failed to prove that the articles D
recovered were that of the deceased-Hence, acquittal of accused upheld in
the absence of any other corroborative evidence to complete the chain of
circumstances.
Respondents-couple were charged for offences under sections 120-8,
364, 302 and 392 read with section 34 IPC for murdering and robbing the E
deceased couple on the basis of circumstantial evidence. The trial court and
the High Court acquitted the respondents of the charges on the ground that
th~ proseuction failed to prove involvement of the respondents in the
commission of the crime.
In appeal to this Court, the appellant-State contended that certain F
articles, including some gold jewels belonging to the deceased were seized
from the respondents; that certain witnesses had deposed that the deceased
werl!-last seen with the respondents; and that the respondents have not
explained as to in what circumstance!!, the victims suffered the death, in their
statements under section 313 Cr.P.C.
G
The respondents contended that this Court, in an appeal.arising out of
special leave petition under Article 136 of the Constitution oflndia, cannnot,
on reappraisal of evidence, take a different view against the concurrent orders
507
H
508
SUPREME COURT REPORTS
[2007] 3 S.C.R.
A of acquittal by the trial court and High Court; and that the courts below have
rightly reached the conclusion on consideration of evidence on record that
f
the prosecution has failed to prove the case beyond reasonable doubt in
...
commission of the crime.
Dismissing the appeals, the Court
B
HELD: 1.1. When the case rests upon circumstantial evidence, such
evidence must satisfy the following tests:
(1) The circumstances from which an inference of guilt is sought to be
l
drawn, must be cogently and firmly established;
f
c
(2) those circumstances should be of a definite tendency unerringly
pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so
D
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
( 4) the circumstantial evidence in order to sustain conviction must be
complete and incapable of explanation of any other hypothesis than that of
guilt of the accused and such evidence should not only be consistent with the
E
guilt of the accused but should be inconsistent with his innocence. (Para 13)
State of U.P. v. Satish, (2005) 3 SCC ll4; Padala Veera Reddy v. State
of Andhra Pradesh & Ors., (1989) Supp. 2 SCC 706; Sharad Birdichand
Sarda v. State of Maharashtra, (1984) 4 SCC ll6; Gambhir v. State of
Maharashtra, (1982) 2 SCC 351; Hanumant Govind Nargundkar & Anr. v.
F State of Madhya Pradesh, AIR (1952) SC 343, referred to.
....
1.2. While exercising the powers in appeal against the order of acquittal,
the court of appeal would not ordinarily interfere with the order of acquittal
unless the approach of the lower court is vitiated by some manifest illegality
and the conclusion arriv~ at would not be arrived at by any reasonable person
G and therefore, the decision is to be characteried as perverse. Merely because
two views are possible, the court of appeal would not take the view which would
upset the judgment delivered by the court below. (Para 15) (519-A-B)
Tota Singh & Anr. v. State of Punjab, (1987) 2 SCC

## Text

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STATE OF GOA
A
v.
SANJA Y THAKRAN AND ANR.
MARCH 2, 2007
[B.N. AGRA WALANDP.P. NAOLEKAR, JJ.]
B
Constitution of India-Article I 36-Penal Code, I 860- Sections I 20B, 364, 302 and 392-Criminal Procedure Code, 1973--Section 313-Accused
charged of criminal conspiracy, abduction, murder and robbery on basis of C
circumstantial evidence-Accused last seen with deceased together-Recovery
of articles of deceased with accused-Tira! Court and High Court acquitting""'•,,
the acccused-Correctness of-Held, court in appeal can set aside the order
of acquittal only when the decision is perverse-On examination of evidence,
there was a considerable time gap between the persons last seen together
and the proximate time of crime-Prosecution failed to prove that the articles D
recovered were that of the deceased-Hence, acquittal of accused upheld in
the absence of any other corroborative evidence to complete the chain of
circumstances.
Respondents-couple were charged for offences under sections 120-8,
364, 302 and 392 read with section 34 IPC for murdering and robbing the E
deceased couple on the basis of circumstantial evidence. The trial court and
the High Court acquitted the respondents of the charges on the ground that
th~ proseuction failed to prove involvement of the respondents in the
commission of the crime.
In appeal to this Court, the appellant-State contended that certain F
articles, including some gold jewels belonging to the deceased were seized
from the respondents; that certain witnesses had deposed that the deceased
werl!-last seen with the respondents; and that the respondents have not
explained as to in what circumstance!!, the victims suffered the death, in their
statements under section 313 Cr.P.C.
G
The respondents contended that this Court, in an appeal.arising out of
special leave petition under Article 136 of the Constitution oflndia, cannnot,
on reappraisal of evidence, take a different view against the concurrent orders
507
H
508
SUPREME COURT REPORTS
[2007] 3 S.C.R.
A of acquittal by the trial court and High Court; and that the courts below have
rightly reached the conclusion on consideration of evidence on record that
f
the prosecution has failed to prove the case beyond reasonable doubt in
...
commission of the crime.
Dismissing the appeals, the Court
B
HELD: 1.1. When the case rests upon circumstantial evidence, such
evidence must satisfy the following tests:
(1) The circumstances from which an inference of guilt is sought to be
l
drawn, must be cogently and firmly established;
f
c
(2) those circumstances should be of a definite tendency unerringly
pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so
D
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
( 4) the circumstantial evidence in order to sustain conviction must be
complete and incapable of explanation of any other hypothesis than that of
guilt of the accused and such evidence should not only be consistent with the
E
guilt of the accused but should be inconsistent with his innocence. (Para 13)
State of U.P. v. Satish, (2005) 3 SCC ll4; Padala Veera Reddy v. State
of Andhra Pradesh & Ors., (1989) Supp. 2 SCC 706; Sharad Birdichand
Sarda v. State of Maharashtra, (1984) 4 SCC ll6; Gambhir v. State of
Maharashtra, (1982) 2 SCC 351; Hanumant Govind Nargundkar & Anr. v.
F State of Madhya Pradesh, AIR (1952) SC 343, referred to.
....
1.2. While exercising the powers in appeal against the order of acquittal,
the court of appeal would not ordinarily interfere with the order of acquittal
unless the approach of the lower court is vitiated by some manifest illegality
and the conclusion arriv~ at would not be arrived at by any reasonable person
G and therefore, the decision is to be characteried as perverse. Merely because
two views are possible, the court of appeal would not take the view which would
upset the judgment delivered by the court below. (Para 15) (519-A-B)
Tota Singh & Anr. v. State of Punjab, (1987) 2 SCC 529; Ramesh Babula/
i -
Doshi v. State of Gujarat (1996) 9 SCC 225; State of Rajasthan v. Raja Ram,
H (2003( 8 SCC 180; Bhagwan Singh v. State of MP., (2002) 4 SCC 85; Shivaji
STA TE OF GOA v. SAN.TAY THAKRAN
509
-
Sahabrao Bobade v. Stale of Maharashtra, 11973) 2 SCC 793; Ramesh Bab/al A
....
l
Doshi v. State of Gujarat, 11996) 9 SCC 225 and Jaswant Singh v. State of
Haryana, 12000) 4 SCC 484, referred to
1.3. The Recovery of these articles from the accused in the absence of
their identification as belonging to the deceased, does not help the
prosecution. Further, the whole purpose and authenticity of the recovery of B
the ornaments have been lost when the witnesses admitted that a day ahead of
the recovery, the accused was shown to him in the police station.
(Paras 20 and 21) [522-E; 523-C)
"
J
1.4. It is a settled rule of criminal jurisprudence that suspicion, however
grave, cannot be substituted for a proof and the courts shall take utmost c
precaution in finding an accused guilty only on the basis of circumstantial
evidence. The time gap between the accused persons seen in the company of
the deceased and the detection of the crime would be a material consideration
for appreciation of the evidence and placing reliance on it as a circumstance
against the accused. It cannot be said that the evidence of last-seen together
is to be rejected merely because the time gap between the accused persons D
and the deceased last seen together and the crime coming to light is after a
considerable long duration. There can be no fixed or straight jacket formula
for the duration of time gap in this regard and it would depend upon the
evidence led by the prosecution to remove the possibility to any other person
meeting the deceased in the intervening period. In the present case, since
E
there was a considerable time gap between the persons seen together and the
proximate time of crime, the circumstance of last-seen together, even if proved,
cannot fasten the guilt on the accused. [Paras 28, 29 and 31 ).
(527-D-E; 528-E-G; 530-H; 531-A(
Bodh Raj alias Bodha & Ors. v. State of Jammu and Kashmir, (2002) 8
SCC 45; Stale of U.P. v. Satish, JT (2005) 2 SC 153; [2005) 3 SCC 114; F
Ramreddy Rajeshkhanna Reddy & Anr. v. State of Andhra Pradesh, JT (2006)
~
4 SC 16 and Jaswant Gir v. State of Punjab, (2005) 12 SCC 438, referred to.
1.5. The accused persons not giving any explanation in their
examination under section 313 Cr. P.C. could not be taken to be a circumstance
pointing towards irresistible conclusion that they are involved in the G
commission of the crime. (Para 33) 1532-B)
·- 4
Ammit alias Ammu v. State of Maharashtra, (2003( 8 SCC 93; Mohibur
Rahman v. State of Assam, (2002) 6 SCC 715; Birbal v. State of MP., (2000)
IO SCC 212; Raju v. State of Haryana, (2001) 9 SCC 50 and Babu Sia
Raveendran v. Babu Slo Bahuleyan and Anr., (2003) 7 SCC 37, referred to. H
510
SUPREME COURT REPORTS
(2007] 3 S.C.R.
A
CJUMINAL APPELLATE JURISDICTION : Criminal Appeal No. 873 of
B
2004.
From the Judgment and final Order dated 30.9.2003 of the High Court
of Bombay at Goa in Criminal Appeal No. 7 of 2002.
WITH
Cr!. A. No. 874 of2004.
Mahendra Anand, Dhruv Mehta, Harshvardhan Jha, Yashraj Singh Deora,
Manoj Mehta (for K.L. Mehta & Co.), Mohit Chaudhary, Manish Jain, Pooja
C Sharma and Shobha for the Appellant.
D
R.K. Jain, Rajiv Dutta, B.S. Chahar, Jyoti Chahar and Vinay Garg for the
Respondents.
The Judgment of the Court was delivered by
P.P. NAOLEKAR, J. 1. Aggrieved by the judgment and final order dated
30-09-2003 of the High Court of Bombay at Goa whereby the accused persons/
respondents, namely, Sanjay Thakran (respondent no. l/A-1) and his wife
Anjali Thakran (respondent no. 2/A-2) were acquitted of the offences charged
E under Sections 120-B, 364, 302 and 392 read with Section 34 of the Indian
Penal Code, 1860, these ~riminal appeals have been preferred by the State of
Goa and father of one of the deceased persons. Earlier, by the judgment
delivered on 09-01-2002, the Court ofllnd Additional Sessions Judge, Panaji
has acquitted both the accused persons of all the abovementioned charges
levelled against them.
F
2. The relevant facts, as per the evidence adduced and the First
Information Report, are that on 26-02-1999, the deceased couple, namely, Vikas
Nanda (D-1, age 26 years) and Kavita Nanda @ Priya Nanda (D-2, age 23
years), arrived in Goa from Mumbai for their honeymoon and stayed in Hotel
Seema at Ribandar. On 27-02-1999, the deceased couple went for sight-seeing
G at Ozran, Vagator with P.W.13-Vincent, who was the car driver and had also
taken them for the sight-seeing trip a day ~arlier as well. At about 2.30 p.m.,
D-1 tole\ P.W.-13 that they had met some friends from Delhi and hence P.W.-
13 returned from there. P.W.30-Suhasini Govekar, who operated a shack at
Anjuna beach with her husband, mentioned that on 27-02-1999, the accused
H couple and their children came to her place in between 1.00-2.00 p.m. and then
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STATE OF GOA v. SANJAY THAKRAN [NAOLEKAR. J.)
511
went to take bath. When they returned back, the deceased couple accompanied A
them. The accused couple was running a bar and the restaurant Iguana Miraj
and hotel Lalita Beach Resort in Goa. P.W.11-Dinesh Adhikari, who was
servant of the respondents, saw the deceased couple at respondents' hotel
2 or 3 days preceding the festival of Holi in the year 1999 at approximately
6.00-7.00 p.m. According to this prosecution witness, A-1-Sanjay Thakran, D- B
1-Vikas Nanda and P.W.14-Calvert were sitting outside the hotel and A-2Anjali Thakran was sitting with D-2-Priya Nanda inside a room in the hotel.
He saw A-1-Sanjay Thakran and D-1-Vikas Nanda walking towards the beach
sometime after 9.00-9.30 p.m. and that was the last time when D-1 was seen
alive. After sometime P.W.11 saw A-1-Sanjay Thakran, A-2-Anjali Thakran
and D-2-Priya Nanda as they were walking away from Iguana Miraj. Another C
prosecution witness, P.W.14-Calvert Gonsalves also saw the deceased couple
at the hotel of the accused couple. As per P.W.6-Amit Banerjee, who was
working as a receptionist at Hotel Seema, D-2-Priya Nanda returned to Hotel
Seema without D-1 and along with A-1-Sanjay Thakran at about 11.30 p.m.
She asked for the key of their room from P.W. 6. A-1-Sanjay Thakran helped
her to carry the luggage from the Hotel room.as she checked out about 11.40
p.m. A-2 did not come to the hotel and remained seated in the white colour
Maruti Car that had a Delhi registration number on it. D-2-Priya Nanda, A1-Sanjay Thakran and A-2-Anjali Thakran went away in that car and thus, D2 was also last seen alive in the company of th~ accused couple.
3. On 28-02-1999, P.W.2-Charles Mills lodged a report at Anjuna Police
Station that a dead body of unknown female foreigner (later identified as DD
E
2) was found at the Vagator Beach. According to this witness, who was
staying near the beach, at around 7 .30 a.m., he was told by someone that a
female body was floating in the seawater. The deceased was wearing a blue
skirt and a top. On the same day, P.W.17-Fausto Afonso lodged report with F
Colva Police Station that a dead body of unknown male foreigner (later
identified as D-1) was found at about 00.30 hours at the Benaulim Beach. The
distance between the Vagator Beach and Benaulim Beach is around 60
kilometers.
4. As the deceased couple neither returned to Delhi as expected by 01- G
03-1999 nor contacted P.W.33-Subhash Nanda i.e., father of D-1, he called up
P.W.4-A.C. Duggal to inquire about them. Accordingly, P. W. 4-A.C. Duggal,
who was uncle of D-1 and lived in Mumbai, called up N. Murari, who was
posted in Goa and worked in the Union Bank of India with P.W.-4, to know
about their whereabouts on 01-03-1999. N. Murari told P. W.-4 that they had H
512
SUPREME COURT REPORTS
(2007] 3 S.C.R.
A already checked out of the Hotel Seema. Since the deceased couple did not
reach Mumbai as stipulated by P.W.-4 on 02-03-1999, he again called up N.
Murari. On 03-03-1999 at about 7.15 p.m., N. Murari informed P.W.-4 that
a dead body of male person with similar description to that of Vikas had
been found and asked him to come to Goa. P.W.-4 rushed to Goa and
identified the dead body ofD-1-Vikas Nanda on 04-03-1999. On the same day,
B N. Murari lodged a missing report [Exhibit No. 20] at Old Goa Police Station.
After identifying the body of D-1-Vikas Nanda at morgue, P.W.-4 went to
Seema Guest House and made inquiries about the couple. The dead body of
D-2 was also identified on 05-03-1999. P.W.-4 lodged a complaint [Exhibit
No.21] on 05-03-1999 at Anjuna Police Station with P.W. 38- Sub-Inspector
C Sandesh Chodankar. According to this complaint, on 04-03-1999, P.W.-4 was
informed by Hotel Manager that D-2 checked out from hotel on 27-03-1999
at about 11.40 p.m. and another person having short built, bald from front and
having fair complexion accompanied her. The complainant believed that since
the dead bodies of the couple had been found at places nearly 60 kilometers
away from each other, the newly married couple must have been lured by
D some disgruntled mischievous element, who had killed them for their ornaments,
as all the gold ornaments of the deceased couple were found missing. P
E
F
5 .. W.26-Dr. Silvano Dias Sapeco, who conducted the postmortem [Exhibit
No. 80] on the body ofD-2 on 01-03-1999, found the following ante-mortem
injuries:
I.
2.
3.
4.
5.
Red bruise 20 ems. Diameter on left mid upper arm.
Red bruise 1.5 ems. Diameter on right inner aspect of upper third
region of thigh.
Red bruise 1.5 ems diameter on left mid thigh in inner aspect.
Red bruise 1.25 ems. Diameter on right mid lower leg at calf
region.
Red bruise 1.25 ems. Diameter on left mid lower leg at calfregion.
G and it was opined that these were caused by blunt weapons. Due to the fact
that the doctor, who initially conducted postmortem on body of D-1-Vikas
Nanda on 01-03-1999, had not preserved any viscera or material, on 05-03-1999
a second postmortem [Exhibit No. 95] was conducted by P.W.32-Dr. E.J.
Rodrigues, which exposed the following ante-mortem injuries:
H
I.
Abrasion reddish and fresh of 6 x 4.5 ems. Present on upper outer
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STATE OF GOA v. SANJAYTHAKRAN [NAOLEKAR, J.)
513
part on right side face between outer orbital margin, 2 ems. in A
front of right tragus of ear and extending on outer part of right
cheek bone. No bruising underneath.
2.
Abrasion reddish and fresh of 2.5 x I ems. Placed vertically on
the ridge of nose. No bruising underneath. No injuries to alae of
nose.
B
3.
Abrasion reddish and fresh of 5 x 3 ems. on left side upper part
of face 2 ems. in front of left tragus of ear extending upto outer
orbital margin and also on outer part of left cheek bone. No
bruising underneath.
4.
Abrasion reddish and fresh of 0.5 x 0.5 ems., I cm. above outer c
end of right eyebrow.
5.
Abrasion reddish and fresh of 0.5 x 0.5 ems., 1.5 ems. above outer
end of left eyebrow.
6.
Abrasion reddish and fresh of 3 x 2 ems., upper middle back of D
right shoulder.
7.
Abrasion reddish and fresh of 2 x 1.5 ems., upper back of left
shoulder at acromial process region.
and it was opined that they were caused with blunt surface. The postmortem
reports of both the deceased persons have concluded that death had occurred E
as a result of asphyxia due to drowning in shallow beach water.
6. From their initial investigation, the Goa police found out about the
description of the accused couple and their children. The flat belonging to
the accused persons was sealed under the orders of a Civil Court. P.W.-38,
therefore, applied to the Judicial Magistrate, !st Class, Margoa for issuance F
of search warrant. The Judicial Magistrate, !st Class, Margoa directed that the
bailiff of the Court would accompany P.W.-38 and in the presence of two
respectable panchas from the locality, the seal of the court would be opened
and inventory of the movable articles and fixtures found in the flat should be
made. After the search, the flat should be resealed/locked and the bailiff G
would file a report to the Court.
Accordingly on 17-12-1999, the police
conducted search of the flat of accused, which was located at Sapna Residency,
Colva.
During this search, ?.W.-38 attached the passports of the accusedrespondents and their two children, two visiting cards of P.W. 19-Subrato
Padhi, a visiting card of Iguana Restaurant and one laminated photograph.
[House Search Panchnama as Exhibit No. 13 and Report regarding Search H
514
SUPREME COURT REPORTS
[2007] 3 S.C.R.
A Warrant which was submitted to Judicial Magistrate, 1st Class, Margoa as
Exhibit No. 108]. The Court bailiff, who accompanied with P.W.-38 and other
panch witnesses, prepared a list of movable articles of the flat [Exhibit No.
112]. The flat was resealed after the search was over.
7. On 30-01-2000, the accused persons were arrested in Agra by P.W.
B 15- Police Inspector Navrang Singh, who was posted at police station of
Sadar Bazar, Agra. P.W.-38 accompanied with Dy. Superintendent of Police
P.W.29-Arvind Gawas, arrived at Agra on the same day. P.W.-15 informed
them that A-1-Sanjay Thakran handed over a double barrel gun and A-2Anjali Thakran took out and handed over a single barrel 12-bore gun from the
C cupboard. During the house search of the accused persons, police recovered
a churidhar set, a ladies purse and some newspapers containing reports that
were connected with investigation of the present case. According to the
prosecution story, the recovered materials were identified by P.W.33-Subhash
Nanda, father of Vikas and P. W.5-Kishen Valecha, brother of Priya as belonging
to the deceased couple. P.W.38-Sandesh Chodankar, Sub-Inspector
D interrogated the accused persons and satisfied himself of their complicity in
the crime. On 31-01-2000, he further obtained transit remand and custody of
the accused couple. The accused were brought back to Goa on 01-02-2000
and formally arrested in connection with the present case.
8. On 08-02-2000, as alleged by prosecution, during the interrogation AE 1-Sanjay Thakran disclosed to P.W. 38Sandesh Chodankar about the fact that
murder of the deceased couple was committed by his wife and him and that
the belongings of the deceased couple were present in his flat. On 11-022000, in presence of Court bailiff-Peter Fernandes and other panch witnesses,
A-I handed over jewellery from his flat 8-2 F-3 at Sapna Residency, Colva.
F The jewellery, which was handed over to police, consisted of eight yellow
metal bangles, one pair of ear-rings and one finger ring. As has been alleged
by the prosecution side, he also produced clothes such as a white full-sleeves
shirt, a saffron-coloured women's kameez with a cream-coloured salwar, a
green-coloured saree with blouse, a light cream-coloured silken kurta pyjama
and a designer black full-sleeves shirt, which belonged to the deceased
G couple.
9. During interrogation, on 13-02-2000, A-2-Anjali Thakran allegedly
disclosed [Exhibit No. 77] that she would point out the goldsmith to whom
she had sold the gold ornaments. As per the directions of A-2-Anjali Thakran,
H a police party and panch witnesses reached the jewellery shop of P.W. 12-
....
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STATE OF GOA v. SANJA Y THAKRAN [NAOLEKAR, J.)
515
Ulhas Lotlikar at Khareband Margao. P.W.12-Ulhas Lotlikar produced two A
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bangles bearing the identification mark 'RK 22 KL', weighing 23 .5 grams.
According to the prosecution case, the said bangles bearing the identification
mark 'RK 22 KL' were gifted to the newly wed couple on their marriage by
P.W.-33. The prosecution has alleged that A-2-Anjali Thakran sold these
bangles along wit.i a necklace and a ring to the jewellery shop run by P.W.-
12. It has also been alleged by the prosecution that A-2-Anjali Thakran sold B
these jewellery on the pretext that as their restaurant was not running well,
they were in urgent need of money.
IO. The learned Sessions Judge, Panaji, as well as the High Court on
evaluation of the circumstantial evidence, came to the conclusion that the C
prosecution has failed to prove involvement of accused respondents in
commission of the crime and acquitted them of all charges.
11. Admittedly, the case of the prosecution is based on circumstantial
evidence as there is no evidence on record that any of the witnesses, examined
by the prosecution, have seen actual commission of the crime. Mr. Mahendra D
Anand, the learned senior counsel for the appellant(s), to prove the case
against A-1-Sanjay Thakran, has placed reliance on the following circumstances:
the recovery of ladies purse and salwar suit by police at Agra on 30.01.2000
and the recovery of jewellery and clothes made from the flat of the accused
persons in Goa on 11.02.2000 and the evidence of seen together with the
deceased couple before the actual incident by P.W.30-Suhasini Govekar and E
evidence of P.W.11-Dinesh Adhikari, P.W.14-Calvert Gonsalves and P.W.6Amit Banerjee to the effect that A-1 was accompanied with the deceased
couple on 27.02.1999 and that the deceased couple was last seen alive in his
company. As far as the evidence against the respondent A-2-Anjali Thakran
fit
is concerned, the learned senior counsel for the appellant(s) has relied upon F
the aspect of recovery of ladies purse and salwar suit; the recovery of two
bangles bearing t~e identification mark 'RK 22 KL' at her instance from the
jewellery shop of P.W.12-Ulhas Lotlikar; and the evidence of P.W.11- Dinesh
Adhikari, P.W.14-Calvert Gonsalves and P.W.6-Amit Banerjee, that Anjali was
last seen in the company of her husband with the deceased couple before the
commission of the crime. The learned senior counsel for the appellant( s) has G
further submitted that no explanation is forthcoming from the accused
respondents in the statement recorded under Section 313 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) as to what has happened after they were
seen in the company of the deceased couple, would indicate involvement of
accused respondents in commission of the crime. The learned senior counsel H
516
SUPREME COURT REPORTS
[2007) 3 S.C.R.
A for the appellant(s) has then pointed out that the chain of circumstances
highlighted in the present case clearly establishes the fact that the accused
(
...
couple did not only meet the deceased couple in Goa but they were the ones
with whom the deceased persons were last seen alive.
It has also been
contended that the recovery of ladies purse and salwar suit from the house
B
of accused couple at the time of their arrest in Agra on 30.01.2000; recovery
of jewellery and clothes at the instance of A-1-Sanjay Thakran from the flat
of accused persons in Goa on 11-02-2000 and recovery of two bangles
belonging to D-2-Priya Nanda bearing the identification mark 'RK 22 KL' at
the instance of A-2-Anjali Thakran from the jewellery shop of P.W.12-Ulhas
l
Lotlikar on 13-02-2000, further substantiate that the accused couple, in order
c to carve away the belongings of the newly married couple, committed the
offence of murder. It has also been pointed out that the High Court and the
lower court have erred in (i) rejecting the evidence regarding the recovery of
incriminating materials and (ii) not appreciating the key prosecution witnesses.
12. On the other hand, late Shri R.K. Jain, the learned senior counsel for
D the respondents, urged that the present matter before us, is an appeal arising
out of special leave petition under Article 136 of the Constitution against
concurrent orders of acquittal by the Sessions Court and the High Court and,
thus, merely because on reappraisal of the evidence, the other view of the
matter than taken by the courts can be legitimately arrived at, would not be
E a sufficient ground to interfere with an order of acquittal, unless this Court
reaches the conclusion that the entire approach of the courts below in
appreciating the evidence was patently illegal, erroneous or unsustainable
and that if, on reappraisal of the evidence, only one view is possible, then
alone the Court will exercise the jurisdiction in appeal and will convict the
acquitted accused persons.
It is submitted that on consideration of the
F evidence on record, the courts below have rightly reached the conclusion that
the prosecution has failed to prove the case beyond reasonable doubt of
involvement of accused respondents in commission of the crime of murder of
_.
the deceased couple.
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13. The prosecution case is based on the circumstantial evidence and
it is a well-settled proposition of law that when the case rests upon
circumstantial evidence, such evidence must satisfy the following tests:
(1) The circumstances from which an inference of guilt is sought to
I
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be drawn, must be cogently and firmly established;
H
(2) those circumstances should be of a definite tendency unerringly
STATE OF GOA v. SANJAYTHAKRAN [NAOLEKAR, J.)
517
pointing towards guilt of the accused;
(3) 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
(4) the circumstantial evidence in order to sustain conviction must be
complete and incapable of explanation of any other hypothesis than
that of guilt of the accused and such evidence should not only be
consistent with the guilt of the accused but should be inconsistent
with his innocence.
[See: State of U.P. v. Salish, [2005] 3 SCC 114, Padala Veera Reddy v. State
of Andhra Pradesh and Ors., [1989] Supp. 2 SCC 706, Sharad Birdhichand
Sarda v. State of Maharashtra, [1984] 4 sec 116, Gambhir v. State of
Maharashtra, [1982] 2 SCC 351 and Hanumant Govind Nargundkar and Anr.
v. State of Madhya Pradesh, AIR (1952) SC 343].
14. By a series of decisions, this Court has laid down the parameters
of appreciation of evidence on record and jurisdiction and limitations of the
appellate court, and while dealing with appeal against order of acquittal this
Court observed in Tota Singh and Anr. v. State of Punjab, [ 1987] 2 SCC 529
as under :
"6 .... The jurisdiction of the appellate court in dealing with an appeal
against an order of acquittal is circumscribed by the limitation that no
interference is to be made with the order of acquittal unless the
approach made by the lower court to the consideration of the evidence
A
B
c
D
E
in the case is vitiated by some manifest illegality or the conclusion F
recorded by the court below is such which could not have been
possibly arrived at by any court acting reasonably and judiciously
and is, therefore, liable to be characterised as perverse. Where two
views are possible on an appraisal of the evidence adduced in the
case and the court below has taken a view which is a plausible one,
the appellate court cannot legally interfere with an order of acquittal G
even if it is of the opinion that the view taken by the court below on
its consideration of the evidence is erroneous."
Further, this Court has observed in Ramesh Babula/ Doshi v. State of Gujarat,
[1996] 9 sec 225:
H
518
A
B
c
D
E
F
SUPREME COURT REPORTS
[2007) 3 S.C.R.
"7 .... This Court has repeatedly laid down that the mere fact that a
view other than the one taken by the trial court can be legitimately
arrived at by the appellate court on reappraisal of the evidence cannot
constitute a valid and sufficient ground to interfere with an order of
acquittal unless it comes to the conclusion that the entire approach
of the trial court in dealing with the evidence was patently illegal or
the conclusions arrived at by it were wholly untenable. While sitting
in judgment over an acquittal the appellate court is first required to
seek an answer to the question whether the findings of the trial court
are palpably wrong, manifestly erroneous or demonstrably
unsustainable. If the appellate court answers the above question in
the negative the order of acquittal is not to be disturbed. Conversely,
if the appellate court holds, for reasons to be recorded, that the order
of acquittal cannot at all be sustained in view of any of the above
infirmities it can then - and then only - reappraise the evidence to
arrive at its own conclusions. "
and in State of Rajasthan v. Raja Ram, [2003] 8 SCC 180:
"7. There is no embargo on the appellate court reviewing the evidence
upon which an order of acquittal is based.
Generally, the order of
acquittal shall not be interfered with because the presumption of
innocence of the accused is further strengthened by acquittal. The
golden thread which runs through the web of administration of justice
in criminal cases is that if two views are possible on the evidence
adduced in the case, one pointing to the guilt of the accused and the
other to his innocence, .the view which is favourable to the accused
should be adopted.
The paramount consideration of the court is to
ensure that miscarriage of justice is prevented. A miscarriage of
justice which may arise from acquittal of the guilty is no less than
from the conviction of an innocent.
In a case where admissible
evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been
acquitted, for the purpose of ascertaining as to whether any of the
G
accused committed any offence or not. {See Bhagwan Singh v. State
of MP., [2002] 4 SCC 85}. The principle to be followed by appellate
court considering the appeal against the judgment of acquittal is to
interfere only when there are compelling and substantial reasons for
doing so. If the impugned judgment is clearly unreasonable, it is a
H
compelling reason for interference. These aspects were highlighted
(
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7
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STATE OF GOA v. SANJAYTHAKRAN [NAOLEKAR, J.]
519
by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, A
[1973] 2 SCC 793, Ramesh Babula/ Doshi v. State of Gujarat, [1996]
9 SCC 225 and Jaswant Singh v. State of Haryana, [2000] 4 SCC 484."
15. From the aforesaid decisions, it is apparent that while exercising the
powers in appeal against the order of acquittal the court of appeal would not
ordinarily interfere with the order of acquittal unless the approach of the lower B
court is vitiated by some manifest illegality and the conclusion arrived at
would not be arrived at by any reasonable person and, therefore, the decision
is to be characterized as perverse. Merely because two views are possible,
the court of appeal would not take the view which would upset the judgment
delivered by the court below. However, the appellate court has a power to C
review the evidence if it is of the view that the view arrived at by the court
below is perverse and the court has committed a manifest error of law and
ignored the material evidence on record. A duty is cast upon the appellate
court, in such circumstances, to re-appreciate the evidence to arrive at a just
decision on the basis of material placed on record to find out whether any
of the accused is connected with commission of the crime he is charged with. D
16. In the light of the aforesaid principles laid down, we shall consider
the evidence placed on record to find out whether the courts below have
committed any error in dealing with the evidence, which can be said to be
patently illegal, or that the conclusion arrived at is wholly untenable, calling
for interference by us.
E
17. Even before the arrest of the accused couple, the flat of the accused
persons situated at Goa was searched on 17.12.1999 in the presence of
P.W.39-Mariono Pereiera, who was the court bailiff.
The court bailiff
accompanied this search party as the flat was sealed under the orders of the F
civil court. The Judicial Magistrate, !st Class, Margao, had passed an order
that the bailiff of the court would accompany P.W.-38, police officer, and in
the presence of two panch witnesses, the seal of the court on the lock of the
flat would be opened and inventory of movable articles and fixtures found in
the flat should be made. The Judicial Magistrate, Margao also directed that
after the search, the flat should be re-sealed/locked and the bailiff would file G
a report in the court. In his cross-examination, P.W.-39 admitted that the court
had asked to prepare a list of all movable items of the flat and not only
valuables, and he committed a mistake as he did not mention all articles found
in the flat in the inventory and, therefore, there was no mention of any
jewellery in the list prepared by him. As per this witness, when the search H
was made on 17.12.1999, there were no gold ornaments in the said flat and
520
SUPREME COURT REPORTS
(2007] 3 S.C.R.
A that there were various articles, which appeared like that of gold. A box full
of such articles was kept in the suitcase.
According to P.W.1- Erecko
Fernandez, a panch witness, the door of the flat was locked with three locks
and there was also a metal chain around the lock. The locks were required
to be cut with the help of a hacksaw blade. But since the door also was
B latched from inside, it could not be opened. They noticed a small window
with a broken glass pane and one of the police personnel who accompanied
them, with the help of a screw driver, removed the screws of the grill of the
window. One of the police personnel went inside the flat and opened the
latch and thereafter all of them entered into the flat. They noticed some
(
suitcases in the flat and on opening the same some clothes were found and
l
C jewellery was found inside the cupboard.
In his cross-examination, this
witness very specifically stated that the said window was wide enough to
allow a person to gain entry in the flat. P.W.38- Sandesh Chodankar, who led
the police party for the search conducted on 17.12.1999, had found lot of
clothes and jewellery of yellow metal, lot of belongings of shack, electronic
items and household items in the flat. He has explained that he did not attach
D any valuable or other articles as he was not sure to whom those things
belonged and also as there was a civil dispute pending in the court.
18. The panchnama of the search made on 17.12.1999 (Exhibit No.13)
mentioned that after conducting the search, the door was closed and one old
E and two new locks were put on the do9r and they were sealed by a one-rupee
coin as the court seal was not available. The court bailiff mentioned that he
sealed three locks l\fter the search was conducted by P.W.-38 on 17.12.1999.
19. After the arrest of A-1, this flat was once again searched on 11.2.2000
in the presence of another court bailiff Peter Fernandez and other panch
F witnesses as A I allegedly confessed about the crime on 08.02.2000. According
to the prosecution version, he agreed to handover the incriminating articles
to the police. P.W.8- Sanjay Naik, a witness to the confession of A-1, was
also present .as panch witness when A-I had allegedly handed over jewellery
items, i.e., eight yellow metal bangles, one pair of ear-rings and one finger ring
G
and clothes such as a white full-sleeves shirt, a saffron-coloured women's
kameez with cream-coloured salwar, a green-coloJJred saree with blouses, a
light cream-coloured silken kurta pyjama and a designer black full-sleeves
shirt, on the search of the flat of the accused persons in Goa on 11.02.2000.
This witness further said that the flat was locked and when the bailiff of the
court tried to open the lock after breaking the seal it did not open and the
H key got damaged in the process of opening of the lock and the lock was
J.
<
ST A TE OF GOA v. SANJA Y THAKRAN [NAOLEKAR, J.]
521
opened by using a wire. P.W.-38 mentioned that on 11.02.2000 the flat was A
found sealed and was opened in the presence of the bailiff and panch
witnesses. The panchnama of recovery made on 11.02.2000 (Exhibit No.34)
mentioned that the bailiff of the court removed the seals and tried to open
the locks with keys. According to this panchnama, one iron rod was used
to open up the locks but instead of the locks, the latch of the door got B
broken. When the chain of latch was removed, it was found that the door
was locked due to body lock.
Since the door was locked, the grills of the
window were removed and after removing the broken glasses, one person was
lowered and finally entry was made in the flat.
The courts below have
rejected the evidence of recovery made on 11.02.2000 and they have found
that the first list of the articles found in the flat as prepared on 17.12.1999 did C
not mention any box or gold-like materials/artificial jewellery or any other gold
article or any clothes in the list of movable articles of the flat (Exhibit No.112).
How is it that the articles were found in the subsequent search from the same
flat which was locked and sealed? The panchnama of the flat searched on
17.12.1999 though mentioned about three big suitcases full of clothes and D
artificial jewellery, no details, whatsoever, regarding those articles were made
and without any reference as to the quality of golden colour ornaments, P. W.-
38 considered them as artificial jewellery. On both occasions when the search
was made in the flat, it was not sealed properly with the court seal and,
instead thereof, one- rupee and five-rupee coins were used. The entry in the
flat on both occasions, i.e. on 17.12.1999 and 11.02.2000, was made through E
the window which shows that this flat was easily accessible although the seal
of the court was put on it, without interfering with the seal after removing
the grill of the window. There was material contradiction in the panchnama
of flat search made on 11.02.2000 and evidence of P.W.-8 and P.W.-38 with
respect to the way in which the entry was made to the flat of the accused
persons on 11.02.2000. When at the first instance no jewellery was found F
inside the flat, how it was recovered on the subsequent search? The search
f
and recovery of articles by the police on 11.02.2000 does not inspire confidence
as the flat was easily accessible, without disturbing the lock and planting of
the articles by the police cannot totally be ruled out. We have carefully gone
through the evidence of the witnesses and the panchnamas and list of seized G
articles and have found that reasoning adopted by the courts below in
discarding the evidence of seizure of articles from the flat of the accused
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)
persons cannot be said to be without any basis.
20. On the information received by the police, the accused persons were
arrested at Agra and at the time of arrest on 30.01.2000, as per the prosecution, H
522
SUPREME COURT REPORTS
[2007] 3 S.C.R.
A certain incriminating articles were seized from the accused couple at Agra.
The police recovered the ladies purse and salwar suit from A-2-Anjali Thakran.
These articles were put for Test Identification which was conducted in the
presence of P.W.24- Vinayak S.N. Alomekar, Special Judicial Magistrate on
I 0.02.2000. During this T.I. Parade, P. W.5-Kishen Valecha, brother of deceased
B Priya Nanda, was unable to identify the salwar suit, but he had identified the
ladies purse belonged to his sister and the reason given for identifying it was
that she was carrying the same purse while leaving for Vaishnodevi after
marriage. Another witness P. W.33- Subhash Nanda, identified both purse and
salwar kameez as belonging to his daughter-in-law, Priya Nanda. In his crossexamination, P.W.-33 has mentioned that he identified the salwar kameez only
C from the colour and design and not from any other identification mark. He
has admitted that same salwar suit and purse are available in the market. P.W.-
5 has also admitted in his cross-examination that there was no distinctive mark
on the purse.
Identification of these articles have been disbelieved by the
courts below and, in our opinion, rightly so.