Can a suggestion put by the defense in cross-examination establish that the accused and the deceased were last seen together?

No. Where both PW7 and PW8 failed in their examination-in-chief to state that the deceased was accompanying the accused, a suggestion given by the counsel for the accused in his cross-examination cannot establish that factum. The High Court, having itself held that the prosecution could not rest its theory of ‘seen together’ on that testimony, erred in going on to uphold the conviction on the very same theory.

Indian Penal Code, 1860 — s.302 — s.201 — s.377 — Evidence Act, 1872 — s.27 — Circumstantial evidence — Last seen together — Extra judicial confession — Disclosure statement — Benefit of doubt — Evidence Act, 1872 — Extra judicial confession — Weak piece of evidence — Corroboration essential — Held: An extra judicial confession is a weak piece of evidence and per se, without independent and cogent corroborative circumstance or evidence, cannot be made the sole basis for conviction. One suffering from material discrepancies or inherent improbabilities is ruled out of consideration. (¶43) Evidence Act, 1872 — s.27 — Disclosure statement — Identification of an area already known to the police — Held further: Section 27 admits so much of the information as relates distinctly to a fact thereby discovered. Where no incriminating article is recovered and the accused identifies an area already known to the police, no reliance can be placed on the disclosure statement. (¶38, 40) Circumstantial evidence — Last seen together — Suggestion in cross-examination cannot supply the link — Held further: A suggestion given by defense counsel in cross-examination cannot establish the factum of the deceased accompanying the accused where the witnesses omitted it in examination-in-chief; the theory of last seen is then not borne out. (¶42) Evidence Act, 1872 — Forensic report — Onus lies on the prosecution — Benefit of doubt — On facts, held: Where no DNA test links the semen on the accused's underwear with that on the rectal swab, the onus cannot be shifted to the accused to establish that there was no connection. Appeal allowed; conviction set aside on benefit of doubt. (¶45, 50)

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