Arvind @ Chhotu vs State
2009 Latest Caselaw 3068 Del

R-57, 58, 62 & 63
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Decision: August 10, 2009

+   CRL.A. 362/2001

    ARVIND @CHHOTU                             ..... Appellant
             Through:           Mr. Sumeet Verma, Advocate

                                versus

    STATE                                      ..... Respondent
                  Through:      Mr. Pawan Sharma, Advocate

    CRL.A. 236/2003

    RAM KISHAN                                 ..... Appellant
             Through:           Mr. Sumeet Verma, Advocate

                                versus

    STATE (NCT OF DELHI)             ..... Respondent
             Through: Mr. Pawan Sharma, Advocate

    CRL.A. 366/2001

    MAHESHWARI @MAHENDER           ..... Appellant
           Through: Mr. Sumeet Verma, Advocate

                                versus

    STATE                                      ..... Respondent
                  Through:      Mr. Pawan Sharma, Advocate

    CRL.A. 490/2001

    VIJAY KUMAR                                ..... Appellant
              Through:          Mr. Sumeet Verma, Advocate

                                versus

    STATE (NCT OF DELHI)            ..... Respondent
             Through: Mr. Pawan Sharma, Advocate

    CORAM:

    Crl.A.Nos.362/2001, 236/2003, 366/2001 & 490/2001      Page 1 of 42
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
     HON'BLE MS. JUSTICE INDERMEET KAUR

        1. Whether the Reporters of local papers may be
           allowed to see the judgment?

        2. To be referred to the Reporter or not?                   Yes

        3. Whether the judgment should be reported in the
         Digest?                                     Yes

PRADEEP NANDRAJOG, J. (ORAL)

1. The above captioned four appeals are being

disposed of by a common judgment and order; not for the

reason all appeals arise out of a common judgment, but on

account of the fact that issue of law which arise for

consideration in the appeals is the same.

2. In Crl.A.No.362/2001 and Crl.A.No.236/2003, the

impugned judgment and order is dated 9.10.2000. The

impugned judgment and order in Crl.A.No.366/2001 and

Crl.A.No.490/2001 is dated 15.7.2000.

3. On the solitary evidence, of being last seen in the

company of the deceased, the appellants have been

convicted.

4. Strictly speaking, there cannot be a precedent at a

criminal trial for the reason each case unfolds facts distinct

and peculiar. But, it does happen sometimes, as in the instant

appeals, that an issue of law arises in commonality.

5. In para 24 of the impugned judgment and order

dated 9.10.2000, which has been challenged in

Crl.A.No.362/2001 and Crl.A.No.236/2003, after noting a

decision cited by the defence and two decisions cited by the

prosecution, on the issue whether being last seen in the

company of the deceased is sufficient to convict an accused,

the learned Trial judge has observed: "moreover the latest

trend of judicial pronouncement is to convict a person on the

basis of last seen evidence".

6. Judicial trends are subject matter of academic

debates with reference to the underlying shifts in

jurisprudence over a period of time. Indeed, such a study is of

academic interest and helps to understand the evolutionary

history of the growth of law. But, in a Court, reference has to

be made to past precedents and with reference thereto it has

to be culled out whether a particular judicial interpretation

stands overruled or not. To decide cases with reference to the

trend of judicial pronouncements would not be a correct

approach, for the reason judicial pronouncements are not akin

to academic research work.

7. We begin with the facts of the four appeals.

8. As noted hereinabove, convictions have been

sustained in all the four appeals; vide two decisions, on the

basis of the solitary circumstance that the deceased was last

seen in the company of the accused.

9. The facts pertaining to Crl.A.No.362/2001 and

Crl.A.No.236/2003 are; we refer to the testimony of Banne

Khan PW-1: on the intervening night of 17th and 18th June, 1998

Banne Khan and his brother Ibban Khan were sleeping at a

spot on a footpath which they had given a number, being

Thokar No.12, Kishan Kunj, Laxmi Nagar, Delhi. Banne Khan

and his brother Ibban Khan were engaged in the business of

repairing and giving on hire rickshaws. Thokar No.12 was all in

all for them. It was their residence. It was their kitchen. It

was their work place. As per Banne Khan, at around 2:00 AM

in the middle of the night the accused i.e. the appellants in

Crl.A.No.362/2001 and Crl.A.No.236/2003, along with one

Mukesh (Proclaimed offender) came to Thokar No.12 and

awoke his brother Ibban Khan and had a talk. Banne Khan

awoke from his slumber, being disturbed by the talk.

Thereafter, the three persons and his brother walked away.

He went back to sleep. He got up in the morning and did not

notice his elder brother sleeping on the cot next to his. It did

not bother him as he thought that probably his brother had

gone to answer the call of nature. After sometime, people

gathered at Thokar No.12 and he went to see as to what had

happened. He got down from the Pushta and saw a dead body

which was of his brother.

10. It may be noted at the outset that as per Banne

Khan he and his brother were sleeping at Thokar No.12. The

accused awoke his brother at Thokar No.12. He saw them

walk towards Thokar No.12. He saw people gathered at

Thokar No.12.

11. It may sound a little strange as to what is Banne

Khan speaking about. Everything happened at Thokar No.12.

If that be so, where was the occasion of Banne Khan not

witnessing the assault on his brother?

12. The answer is to be found, if we have a look at the

rough site plan Ex.PW-13/B prepared by the investigating

officer who came to the spot on receipt of information that a

dead body had been found, as also the site plan to scale,

Ex.PW-12/A. The two site plans, not very happily prepared,

show that Thokar No.12 is at some distance from the place at

which the dead body of Ibban Khan was found.

13. It appears that Banne Khan has intended to say that

after the accused awoke his brother he saw them walk away

from Thokar No.12.

14. Unfortunately, the two plans have not been

prepared with the graphic description which is required to be

conveyed by a site plan. A stretch of road spanning over 80

meters has been given the legend "Thokar No.12", Yamuna

Pushta, Shakar Pur. The fact of the matter is that Thokar

No.12 is a spot not exceeding 3 meters by 5 meters, being a

spot on the pavement usurped by Banne Khan and Ibban Khan

to carry on their business as also reside.

15. The result is that we are unable to gather as to

where is the exact spot where Banne Khan was sleeping along

with Ibban Khan. We are also not able to ascertain the exact

distance from the said spot and the spot where the dead body

of Ibban Khan was noticed the next morning.

16. Be that as it may, the only evidence on record is, as

aforenoted, that deceased Banne Khan who was sleeping on a

footpath was seen in the company of the accused at 2:00 AM

in the middle of the night and thereafter at around 6:00 AM in

the morning of 18.6.1998 the body of Ibban Khan was seen in

the open area just adjacent to the footpath on which the

deceased and the accused were last seen together at around

2:00 AM in the middle of the night.

17. The facts pertaining to Crl.A.No.366/2001 and

Crl.A.No.490/2001 are; we may note the same through the

testimony of Smt.Rajni PW-4: that the deceased Raj Kumar,

husband of Smt.Rajni was in the company of Vijay, Maheshwari

and Ram Charan (declared proclaimed offender) at the

residence of Raj Kumar in the evening at about 5:00 or 6:00

PM of 3.11.1996 and all left the house of the deceased and

that the deceased never returned. She i.e. Rajni searched for

her husband in the night on 3.11.1996 and on the next day in

the morning i.e. on 4.11.1996, when she resumed the search

for her husband saw his dead body near Lal Mandir.

18. We may note that the other witness of the

prosecution, Narender Sharma PW-3, has turned hostile and

has not supported the case of the prosecution. He has resiled

from his statement recorded under Section 161 Cr.P.C. by the

investigating officer. We may note that the suggestions put to

PW-3 by the learned Public Prosecutor are that he had told the

police that he had seen the deceased in the company of the

accused at around 8:00 PM on 3.11.1996.

19. As per the site plan Ex.PW-15/A, the dead body of

Raj Kumar was found just adjacent to the gate of Lal Mandir on

an open space abutting the main public street which bisects

Block No.GH-13, Paschim Vihar and Lal Mandir. Needless to

state, the Mandir and thoroughfare are accessible to all. The

site plan and the evidence gives us no clue as to the distance

between the house of the deceased and the spot where his

dead body was found. We may also note that the post-mortem

report Ex.PW-2/A shows that the stomach content of Raj Kumar

was smelling of alcohol. Further, the stomach content showed

partly digested food. As per the post-mortem report, the

probable time of death of Raj Kumar was 36 hours prior to the

time when post-mortem was conducted. As recorded in the

report, the post-mortem was conducted at 11:00 AM on

5.11.1996. Thus, the probable time of death of the deceased

would be anywhere between 11:00 PM to the midnight of the

intervening night of 3rd and 4th November, 1996.

20. With reference to the facts of all four criminal

appeals it may be noted at the outset that the common

features are that the deceased was last seen in the company

of the accused a few hours prior to the dead body being noted.

21. In Crl.A.No.362/2001 and Crl.A.No.236/2003 the

time lag of the deceased being last seen alive in the company

of the accused and the dead body being noted, is about 4

hours. In Crl.A.No.366/2001 and Crl.A.No.490/2001 the time

lag of the deceased being last seen alive in the company of

the accused and the dead body being seen is about 12 hours.

But, the post-mortem report pertaining to deceased shows the

probable time of death being between 11:00 in the night and

12:00 midnight. Thus, the time gap of the deceased being last

seen alive and dying would be about 5 to 6 hours.

22. Whereas learned counsel for the appellants urges

that in the decision reported as 2006 (3) SCALE 452 Ramreddy

Rajeshkhanna Reddy & Anr. Vs. State of Andhra Pradesh, vide

para 28, no conviction can be sustained on the sole

circumstance of the deceased being last seen alive in the

company of the accused and that the Courts should look for

some corroboration. Learned counsel urges that all prior

decisions have explained the last seen theory by stating that it

comes into play where the time gap between the point of time

when the accused and the deceased were last seen alive and

the deceased is found dead is so small that possibility of any

person other than the accused being the author of the crime

becomes impossible. Counsel urges that in Ramreddy‟s case

(supra), for the first time, it was added that even in such cases

the Courts should look for some corroboration. Learned

counsel urges that the said decision has been followed with

approval in the decisions reported as 2009 (3) SCALE 327

Vithal Eknath Adlinge Vs. State of Maharashtra, 2008 (9)

SCALE 319 Venkatesan Vs. State of Tamilnadu, 2007 (3) SCALE

740 State of Goa Vs. Sanjay Thakran & Anr. and in the latest

pronouncement reported as 2009 (8) SCALE 743 State of Uttar

Pradesh Vs. Shyam Behari & Anr.

23. Mr.Pawan Sharma, learned counsel for the State

draws our attention to certain decision of the Supreme Court

wherein it has been held that on the application of the last

seen theory being the sole incriminating circumstance,

conviction of the accused can be sustained.

24. During course of arguments in the appeals, learned

counsel have referred to various authorities and rather than

listing out the same as the authorities relied upon by learned

counsel for the appellants and as authorities relied upon by

learned counsel for the State, we propose to cull out the legal

norms in the judicial pronouncements referred to by learned

counsel for the parties.

25. The last seen theory relates to evidence which is

not direct evidence i.e. is circumstantial evidence. It is settled

law that to sustain a conviction on circumstantial evidence, the

chain of circumstances has to be so complete that the finger of

accusation unerringly points towards the guilt of the accused

and rules out the innocence.

26. The foundation of the last seen theory is based on

principles of probability and cause and connection.

27. Where a fact has occurred with a series of acts,

preceding or accompanying it, it can safely be presumed that

the fact was possible as a direct cause of the preceding or

accompanying acts, unless there exists a fact which breaks the

chain upon which the inference depends.

28. As observed in the decisions reported as (2002) 6

SCC 715 Mohibur Rahman Vs. State of Assam, there may be

cases where a single circumstance is of a kind that a rational

mind is persuaded to reach an irresistible conclusion that

either the accused should explain how and in what

circumstances the deceased suffered death or should own the

responsibility for homicide.

29. Thus, at the heart of the matter of a circumstantial

evidence is the principle: of a rational mind being persuaded to

reach an irresistible conclusion qua the guilt of the accused.

30. It is the quality of evidence and not the number

which matters. A criminal trial is not a race at which the

winner is determined with reference to the length run by the

prosecution or the defence. It is also not a number game

where the number of circumstances would determine the guilt

or otherwise.

31. We can do no better other than to refer to an

illustration, aptly illustrated in the decision reported as 2000

(8) SCC 382 State of W.B. Vs. Mir Mohammad Omar & Ors.

32. Debating on the issue whether the sole evidence of

an accused being last seen in the company of the deceased

would be sufficient to sustain a conviction, the Supreme Court

held that the presumption of fact is an inference as to the

existence of one fact from the existence of some other facts,

unless the truth of such inference is disproved. Presumption of

fact is a rule in law of evidence that a fact otherwise doubtful

may be inferred from certain other proved facts. When

inferring the existence of a fact from other set of proved facts,

the Court exercises a process of reasoning and reaches a

logical conclusion as the most probable position.

33. The legislative foundation to the said rule of

inference was located in Section 114 of the Evidence Act which

empowers the Court to presume the existence of any fact

which is likely to have happened. In that process, the Court

shall have regard to the common course of natural events,

human conduct etc. in relation to the facts of the case.

34. The illustration by the Court succeeds the

aforenoted legal principles culled out by the Court in para 33

of the decision. The hypothetical illustration highlighted by the

Courts is of a boy being kidnapped from the lawful custody of

his guardian in the sight of his people and the kidnappers

disappearing with the prey. The question posed is: what would

be the normal inference if the mangled dead body of the boy is

recovered within a couple of hours from elsewhere.

35. The answer is provided: in such a case, the only

inference of reasonable certainty is that the boy was killed by

the kidnappers unless the kidnappers explain otherwise.

36. Would it make any difference if the dead body of

the kidnapped boy is found after 10 days. To our mind, with

reference to the hypothetical case posed by the Supreme

Court, it would make no difference. The reason is that, if a

person has no lawful reason to be in the company of another

person, as in the case of kidnapping, whatever may be the

length of time between the incident of kidnapping and the

victim being found dead, unless the kidnapper explains the

time and place where he parted company with the prey, the

kidnapper must own the guilt.

37. There is another legal principle on which aforesaid

inference can be founded. Section 106 of the Evidence Act

embodies the legal principle that where a fact is especially

within the knowledge of any person, the burden of proving that

fact is upon him. The philosophy behind Section 106 of the

Evidence Act is that a knowledge of a person rests in his brain

or his mind. It can never be accessed or exposed by the

opposite party; at a criminal trial, the opposite party being the

prosecution. The only rider which needs to be noted, on the

applicability of Section 106 of the Evidence Act is, at a criminal

trial, that the prosecution must reach the stage by leading

cogent and clinching evidence where further deadlock can be

broken only by accessing the knowledge of the accused and

only when the silence of the accused or not giving an

explanation by the accused would attract the adverse

inference against him.

38. It is settled law that in the evaluation of evidence,

circumstances surrounding a fact play a very important role.

Indeed, denuding circumstance in which a fact occurred would

render the evidence fairly sterile and incapable of any

meaningful appreciation.

39. The various judicial pronouncements which have

been referred to by learned counsel for the parties show, far

from there being any divergence in the judicial opinion, a

common signature tune. The common golden thread running

down and spanning; infusing life, in the various judicial

pronouncements is the circumstance surrounding a fact kept

in view by the Court while evaluating evidence pertaining to

the deceased and the accused being last seen alive followed

by the dead body of the deceased being recovered. Indeed,

with reference to the circumstances surrounding the fact of

being seen last it has been held that on the facts and

circumstances of a particular case the sole evidence of the

deceased and the accused being last seen alive was sufficient

wherefrom the finger of guilt could unerringly be pointed

against the accused, who rendered no satisfactory explanation

as to when the accused and the deceased parted company. In

cases where the circumstances were such that it could not be

held that there was a possibility of an outsider intervening, it

was held that in the absence of any further evidence, the

highly suspicious conduct of being last seen alive remained a

mere suspicion and did not attain the status of proof.

40. Let us visit the authorities cited by learned counsel.

41. At the forefront is the decision reported as AIR 1955

SC 801 Deonandan Mishra vs. The State of Bihar. The same

has been relied upon by learned counsel for the appellants. In

para 9 of the decision it has been held that in a case of

circumstantial evidence the various links in the chain of

evidence have to be clearly established and the chain must be

complete so as to rule out a reasonable likelihood of the

innocence of the accused.

42. Pertaining to the applicability of the last-seen

theory, the evidence was, of the deceased and the accused

being seen as travelers in a train on Chakand Railway Station

at around 11:00 PM - 11:30 PM on the intervening night of 3rd

and 4th September 1953 and the dead body of the deceased

being found near a graveyard at the outskirts of the city of

Gaya in the morning of 4th September 1953. The relationship

of the accused and the deceased was that of husband and

wife. The exact distance between Chakand Railway Station

where the deceased and her husband were seen in the train

and Gaya is not known, for the reason the same does not find

any mention in the decision. The train in question commenced

its journey from Patna and the destination was Gaya.

43. In the absence of any satisfactory explanation given

by the husband, the Supreme Court held that an inference of

guilt could be drawn against the accused.

44. We note that the Supreme Court held that a fairly

strong motive was emerging. We note that it has not been

categorically held that motive was established. We also note

that there was a simple injury on the hand and knees of the

accused which were not explained. But, the central focus of

the decision has been the relationship of the accused and the

deceased; the two being husband and wife and that the two

were passengers in a train which was proceeding towards

Gaya and were last seen in the company of each other at

Chakand Railway Station and the dead body of the deceased

being noticed at Gaya.

45. The decision guides us that a long distance

between the place where the accused and the deceased are

last seen alive and the place where the deceased is found

dead, has to be evaluated with reference to the relationship of

the accused and the deceased and the connection between

the two spots. The normal course of human conduct referable

in Section 106 of the Evidence Act guides the Court that where

a husband and a wife commence their journey they are

presumed to remain together till they reach their destination.

If midway, either spouse goes missing, the other must explain.

If no satisfactory explanation is forthcoming, the said spouse

against whom the finger of accusation is raised must admit to

the guilt.

46. The next authority cited is 1993 SCC (Cri) 520

Anant Bhujangrao Kulkarni vs. State of Maharashtra. The said

decision has been relied upon by Mr.Sumeet Verma, learned

counsel for the appellants. Learned counsel drew our

attention to para 12 of the decision and urged that the only

circumstance which was established at the end of the trial, as

noted by the Supreme Court, was of the deceased being last

seen alive in the company of the appellant at 6:00 PM on

13.10.1975 and the dead body being found the next morning

i.e. on 14.10.1975. It was held that said evidence was

insufficient to hold that the appellant was guilty.

47. A perusal of the decision shows that the

prosecution was predicating its case on two incriminating

circumstances; being, the deceased being last seen alive with

the accused at 5:30 PM on 13.10.1975 and the dead body

being noted in the early hours of the morning of 14.10.1975

and the fact that the dead body of the deceased was found in

a ladni adjacent to a ladni occupied by the accused.

48. Pertaining to the ladni in which the dead body was

found and the ladni in which the accused resided, it was noted

by the Supreme Court that there was a huge complex called

Wada, consisting of various ladnis, one of which was the

residence of the accused. The fact that the dead body of the

deceased was found in the other ladni adjacent to the ladni

occupied by the accused was specifically noted in para 7 of the

decision.

49. It is apparent that what has weighed with the

Supreme Court is the circumstance relatable to the place

where the dead body was found. The place was not linked,

being in the possession of the accused and there was no

evidence that the accused was seen at the place where the

deceased was found dead. Meaning thereby, anybody could

have accessed the ladni where the deceased was killed; it

being evident that somebody had accessed the ladni by the

very factum of the deceased being killed in the ladni.

50. We may note that in said case, as noted in para 3 of

the decision, the accused explained having parted company

with the deceased after 6:00 PM and having heard the

deceased shouting „melo - melo‟ from near the ladni opposite

his house i.e. ladni in which the dead body of the deceased

was ultimately found.

51. The principle applied by the Supreme Court is

evident. The place where the dead body of the deceased was

noted and the time lag between the time of last seen and dead

body noted did not rule out that a third person could not

possibly be involved.

52. The third decision to which our attention was drawn

is reported as (2000) 8 SCC 382 State of West Bengal vs. Mir

Mohammad Omar & Ors. Learned counsel for the State

referred to the same.

53. Pertaining to the evidence against the abductors

who had abducted Mahesh, a young businessman from

Calcutta and against whom eye-witnesses had deposed of

having taken along with them Mahesh, who was subsequently

killed; the Supreme Court held that since the abductors had

not rendered any explanation as to when they parted company

with Mahesh, they must admit to their guilt. In para 34 of the

decision it was held as under:-

"34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they

took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody."

51. For record, we may note that in the preceding

paragraphs being No.31 to 36 of our decision, we have

referred to the hypothetical illustration in the decision in Mir

Mohammad Omar‟s case.

52. The fourth decision relied upon by both counsel is

reported as (2002) 6 SCC 715 Mohibur Rahman & Anr. vs.

State of Assam.

53. The deceased was named Rahul. The accused were

Taijuddin and Mohibur Rahman. Through the testimony of PW-

6, was the evidence that the accused and Rahul were last seen

at 5:00 PM at a bus stand on 24.1.1991. The body of Rahul

was found at a distance of 30 km to 40 km from the bus stand

where all were seen together. The dead body was noted on

6.2.1991 i.e. after 13 days of the deceased and the accused

seen last alive.

54. Obviously, where a dead body is recovered after 13

days of a person seen last alive it becomes very difficult to

pinpoint even the exact day of death. None was proved.

55. Against Taijuddin there was further evidence that

after 2 or 3 days of disappearance of Rahul, Taijuddin had met

Batibu Begum, the mother of the deceased and one Badnel Ali

the cousin of the deceased and had falsely told them that

Rahul had eloped with his sister-in-law named Balijan Begum.

Further, Taijuddin had pointed out the place where the dead

body of Rahul, cut into 2 pieces was lying buried.

56. Under the circumstances, acquitting Mohibur

Rahman and convicting Taijuddin, the Supreme Court held that

qua Mohibur Rahman the strongly suspicious evidence of being

last seen in the company of the deceased could not be

equated with proof but the strongly suspicious circumstance of

being last seen alive with the deceased against Taijuddin

coupled with an attempt made by him to mislead the relations

of Rahul and his knowledge of the place where the dead body

of Rahul was found were sufficient circumstances where from

his guilt could be inferred.

57. What is relevant to be culled out is that the

circumstance of the deceased last seen with the accused and

the circumstance of the place where the dead body was found

i.e. both being public places accessible to all and the distance

between the place where the deceased was last seen alive and

the dead body was recovered as also the circumstance of the

proximity of the time of death with the time of last seen alive

being broken, were held to be circumstances to be kept in

mind.

58. The fifth decision referred to is reported as (2002) 8

SCC 45 Bodhraj @Bodha & Ors. vs. State of Jammu & Kashmir.

59. Explaining the last-seen theory, in para 31 it was

observed as under:-

"31. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased, A-1 and A-2 were seen together by witnesses i.e. PWs 14, 15 and 18; in addition to the evidence of PWs 1 and 2."

60. The circumstances of the facts of last seen alive;

pertaining to the place, the time and the distance between the

place where the deceased was last seen alive and the dead

body was found and the time-gap of the two events needs to

be noted.

61. A-1 and A-2 had business and financial dealings

with the deceased and on the fateful day i.e. 3.8.1994 were

last seen in the company of each other till as late as 4:00 -

4:30 PM. The deceased and the accused left the business

premises of Gian Singh PW-1 who was a property dealer. Gian

Singh was informed that all the three wanted to purchase

some property and left the business premises of Gian Singh.

The deceased being killed was reported to the police the same

day i.e. on 3.8.1994 at 9:00 PM. The place where the dead

body was recovered was close to the spot where the deceased

and the accused were last seen together. The place was near

a canal adjoining fields. We eschew reference to the other

incriminating evidence against the accused. With reference to

the last-seen theory, the observations of the Court, in para 31,

contents whereof have been noted herein above in para 59 by

us, requires it to be noted that the proximity of the place

where the dead body of the deceased was found and the spot

where the deceased was last seen alive in the company of the

accused was an important factor considered by the Court as

also the fact that the time-gap of last seen alive and the police

being reported about the deceased dying was about 3:30

hours. We may add that though the place where the deceased

was killed was an open area but was not a public thoroughfare.

The place was a field i.e. an open area around a canal. The

evidence of PW-1 that the deceased and the accused told him

that they were interest in purchasing land was a circumstance

of importance for the reason the place where the deceased

was found killed was an open land and probablized the

accused leading him to the spot under the garb of showing a

vacant land which could be purchased by the deceased.

62. The decision, once again, highlights the backdrop

evidence pertaining to circumstance which a rational mind has

to keep in view, while drawing inferences applying the last-

seen theory.

63. The sixth decision to which our attention was drawn

is reported as (2003) 7 SCC 37 Babu S/o Raveendran vs. Babu

S/o Bahuleyan & Anr.

64. The solitary circumstance was of the accused and

the deceased being seen alive in the company of each other

followed by the dead body of the deceased being recovered.

The time when the two were last seen was 8:30 PM. The date

was 3.2.1993. That the deceased had died was noticed by PW-

6 at 2:30 AM i.e. after about 6 hours of the deceased and the

accused being seen last alive. The relationship of the

deceased and the accused was of husband and wife. The

place of death was their matrimonial house. The place where

they were last seen alive was the matrimonial house. The

place where the dead body was found was the same

matrimonial house. There being no evidence of an intruder, in

para 18, it was held that in such a situation, the circumstance

leading to the death of the deceased stand shifted, to be

explained by the accused, for it is only he who is to be

expected to know the manner and the circumstances under

which his wife died.

65. The decision highlights the importance of the

circumstance of relationship between the parties to be

considered while evaluating the evidence of last seen. The

decision highlights the circumstance of the place being not

accessible by the public at large. The decision highlights that

where a wife is killed in her matrimonial house and it stands

proved that sometimes before she died the husband was

present in the house; the time being night time when

husbands are expected to be in their house, inferences of guilt

can be drawn against the husband who renders no explanation

as to when and how his wife died.

66. The seventh decision to which our attention has

been drawn is reported as 2003 (8) SCC 93 Amit @Ammu vs.

State of Maharashtra.

67. The victim and the accused were unrelated but

were known to each other. The deceased, a young girl, and

the accused, a young boy, were last seen together by PW-1

and PW-11 in the afternoon (exact time is not noted in the

decision). The deceased, evidenced by the post-mortem

report, died between 3:00 PM and 4:00 PM the same day. The

dead body was recovered the next day. The girl was raped.

The place where the deceased was last seen in the company

of the accused was just next to the place where the deceased

was found dead. The place was a grazing area having a

dilapidated building. The deceased and the accused were

seen just near the dilapidated building in the grazing area.

The dead body was recovered from within the dilapidated

building.

68. There was no other evidence which incriminated

the accused.

69. In para 9 of the decision, it was observed as under:-

"9. The learned counsel for the appellant has placed reliance on the decision of this Court by a Bench of which one of us (Justice Brijesh Kumar) was a member in Mohibur Rahman vs. State of Assam for the proposition that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. In the decision relied upon it has been observed that there may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of a death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. The present is a case to which the observation as aforesaid and the principle laid

squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction. Those circumstances have already been noticed, in which case such an irresistible conclusion can be reached will depend on the facts of each case. Here it has been established that the death took place on 28th March between 3 and 4 p.m. It is just about that much time that the appellant and the deceased were last seen by PW-1 and PW-11. No explanation has been offered in the statement by the appellant recorded under Section 313 Cr.P.C. His defence is of complete denial. In our view, the conviction for offence under Sections 302 and 376 has been rightly recorded by the Court of Session and affirmed by the High Court."

70. The decision highlights the importance of the

circumstances relating to the nature of the place where the

deceased and the accused were last seen as also the proximity

of the place where they were seen and the place where the

deceased died.

8th

71. The decision referred to is reported as (2005) 3

SCC 114 State of U.P. vs. Satish.

72. The facts of the case are fairly akin to the preceding

decision. It also relates to the rape of a girl followed by her

murder. The testimony of PW-3 and PW-5 established that on

16.8.2001 they had seen the deceased and the accused on a

bicycle which was paddled by the accused with the deceased

sitting on the handle bar thereof, between 1.00 PM to 2.00 PM.

There was evidence of PW-2 of having seen the accused at the

same place in a perplexed state around 2.00 PM. The dead

body was recovered the next day at 6.00 AM. The post-

mortem was conducted at 2.00 PM on 17.8.2001 and the

opinion of the doctor was that the girl had died within the

preceding 24 hours; wherefrom a conclusion could be drawn

that the girl was murdered any time between 1.00 PM to 2.00

PM on 16.8.2001.

73. Reversing the decision of the High Court which had

held that merely because two people had seen the deceased

and the accused and a third had seen the accused near the

place where the girl was found murdered was not sufficient to

sustain the conviction, the Supreme Court held that the

proximity of the place and the time was fatal and with

reference thereto, the circumstance as noted hereinabove of

last seen was sufficient to draw the inference of guilt.

74. The decision highlights the importance of relevancy

of circumstance under which two people are seen together and

the circumstance of one of them dying. The circumstance of

the proximity of place also stands highlighted. As in the

preceding decision, the instant decision shows that in a given

set of circumstances the solitary evidence of last-seen alive

can form the basis to sustain a conviction.

75. The 9th and the 10th decisions cited, are reported at

seriatim being AIR 2006 SC 1708 Deepak Chandrakant Pail vs.

State of Maharashtra and AIR 2006 SC 1712 State of U.P. vs.

Desh Raj.

76. The former pertains to the application of the theory

of last-seen with reference to the testimony of A-1 and A-2 of

having seen the accused in the company of the deceased at

10.00 PM on 29.12.1998. A-2 had come to the house of

deceased and persuaded him to go to the house of A-1. The

deceased and A-2 were seen leaving the house of the

deceased by his family members. The deceased never

returned and his dead body was found the next day. The place

where the deceased was found was behind the house of A-1.

There was no evidence of A-1 being seen in the company of

the deceased. The circumstance of A-2 taking the deceased

from the house of the deceased telling him that A-1 was calling

him and the circumstance of „A‟ being killed behind the house

of A-1 were specifically noted by the court. We note that there

is evidence against A-1 of having a quarrel with the deceased

a few days prior to the incident.

77. Pertaining to the theory of last-seen, the decision

afore-noted highlights the importance of the backdrop

circumstance under which the accused and the deceased were

seen. The circumstance relating to the time of departure, the

testimony of departure, the place where the dead body was

found, being just next to the destination etc. etc. was

highlighted.

78. The conviction of the accused was sustained.

79. The second decision has facts akin to the two but

one preceding decision. It relates to the unfortunate rape

followed by the murder of a young girl. The place of death was

an open field having „ber' bushes. The young girl was seen in

the company of the accused at around 5.00 or 5.30 PM on

21.2.1979. Her dead body was found the next day. There was

also evidence that at 7.30 PM on 21.2.1979, PW-7 had seen

the deceased alone around the field in question.

80. It was held that therefrom, on the application of the

last-seen theory, an inference of guilt against the accused

could be drawn.

81. We note that there was further evidence of scratch

marks on the face of the appellant which was used as

additional evidence to draw an inference of guilt.

82. The decision highlights the importance of taking

judicial notice of the circumstance relatable to the proximity of

the place where the accused and the deceased were last seen

and the place where the dead body of the deceased was found

as also the short interval of time between the two; ruling out

the possibility of any third person being with the deceased.

83. The 11th decision referred to is reported as 2006 (3)

SCALE 452 Ramreddy Rajeshkhanna Reddy & Anr. vs. State of

Andhra Pradesh.

84. The last-seen evidence pertains to the accused and

the deceased being last seen together at 10.30 in the night of

14.6.1998. The evidence was that the accused had come to

the house of the deceased and requested him to accompany

him to repair his jeep i.e. the jeep of the accused. The

deceased did not return home. The dead body was noted at

5.30 AM the following day. The place where the dead body

was found was a public street abutting the house of PW-4.

85. Reversing a finding of conviction affirmed by the

High Court, the Supreme Court held that applying the last-seen

theory in the facts and circumstances of the said case it could

not be said that the evidence unerringly pointed only towards

the guilt of the accused and ruled out his innocence. In para

28 of the decision, the Supreme Court observed as under:-

"28. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration."

86. The submission of learned counsel for the

appellants is that instant decision, for the first time,

categorically holds that pertaining to last-seen evidence being

the solitary evidence, the court should look for some

corroboration.

87. It is true, that with reference to the last-seen

theory, the concluding sentence of para 28 of the decision

does record that even in such cases (last-seen theory) court

should look for some corroboration. But, it has to be noted

that the preceding decisions hereinbefore referred to by us

which have sustained conviction on the last-seen theory, have

not been noted in the said decision.

88. The last sentence of para 28 in Ramreddy‟s case

(supra) has to be understood with reference to the

circumstances of last-seen evidence led in the said case as

also the observations of the court in para 14 pertaining to a

taint in the testimony of PW-2.

89. Eschewing reference to the taint found in the

testimony of PW-1, with reference to the applicability of the

last-seen theory, suffice would it be to state that the

circumstance of two people being last seen; the reason of their

departure and the place where the deceased is found dead

assumes importance. Indeed, in Ramreddy‟s case (supra) the

same assumed importance, in that, the likely possibility of a

third person intervening could not be ruled out.

90. As against a case of a husband and wife leaving

together and expected to either reach their destination

together or return back together, two friends on a common

mission would not be expected to return back together. As in

Ramreddy‟s case (supra), where two friends leave to repair a

vehicle there is every possibility that after some time they

parted company and somebody else accessed the deceased

and killed him, in a case of husband and wife same is

inapplicable. As in Ramreddy‟s case, where the place the

deceased is found killed is a public street, it assumes

importance to consider where any person on the public street

could have done so. The timings in Ramreddy‟s case are of

importance. The deceased and the accused left the house of

the deceased at around 10.30 in the night. The place where

the deceased died was a public street.

91. The 12th decision referred to is reported as 2006

(12) SCALE Vikramjit Singh @ Vicky vs. State of Punjab.

92. The decision was cited by the learned counsel for

the appellants to bring home the point that the decision in

Ramreddy‟s case (supra), which according to the learned

counsel held for the first time that the court must look to

corroboration in cases of last-seen theory being applicable was

followed.

93. We have already dealt with the decision in

Ramreddy‟s case and hence need not deal extensively with

the instant decision, save and except to note that the appeal

of Vikramjit Singh was allowed notwithstanding the fact that

the relationship between the appellant therein and the

deceased was of husband and wife, for the reason, Vikramjit

Singh had himself sustained injuries and had explained the

circumstance of how his wife was killed.

94. The 13th decision referred to is reported as 2007 (3)

SCALE 740 State of Goa vs. Sanjay Thakran and Anr. The

theory of last-seen was sought to be applied in the said case.

95. This Bench had an occasion to consider Sanjay

Thakran‟s case (supra). Our decision is dated 21.7.2009,

disposing of Crl.A.No.225/2001 Babuddin vs. State. In paras

28 and 29 of our decision afore-noted we had observed as

under:-

"28. Friends sit around and loiter around. In their youth they do so even late in the night. Parting company, each goes to his house. Anything may happen to anyone of them on the way. Interestingly, in Sanjay Thakran‟s case (supra) a somewhat similar situation had arisen. The accused, a married couple as also the deceased, also a married couple, were known to each other. Accused No.1 and deceased No.1 were seen walking towards a beach and 2¼ hours thereafter the dead body of deceased No.1 was found at the beach. Accused No.2 and deceased No.2 were seen walking on the road and thereafter nobody saw deceased No.2 till her dead body was found with a gap of 8½ hours of her being last seen

alive with accused No.2. We may note that accused No.1 was the husband of accused No.2. Deceased No.1 was the husband of deceased No.2.

29. Though not so expressly said in so many words, while upholding the acquittal of the accused, it is apparent that what has weighed with the Lordships of the Supreme Court is the fact if two friends go to a beach there is no presumption that both of them would stay together at the beach. There is every possibility of a third party being the assailant. Similarly, where two friends are seen walking on a street, there is every possibility of the two parting company, and somebody else being the assailant. In this context the issue of time gap becomes relevant. The issue of the place where the two were last seen alive becomes relevant."

96. The 14th decision referred to is reported as 2008 (9)

SCALE 319 Venkatesan vs. State of Tamil Nadu. The solitary

circumstance attracting last-seen theory was a subject matter

of consideration in the said appeal.

97. The purpose of citing said decision of learned

counsel for the appellants was to bring home the point that

Ramreddy‟s case (supra) was affirmed in said decision and

hence the last sentence in para 28 in Ramreddy‟s case stood

reiterated.

98. We have explained the decision in Ramreddy‟s case

in paras 86 to 90 hereinabove and hence we make no further

comments, save and except to note that in Venkatesan‟s case

(supra), the evidence of the deceased and the accused being

last seen pertain to the night of 19.4.1988 and the dead body

of the deceased being found on 22.4.1988. The exact time

when the deceased died could not be ascertained. There was

no proximity of the place where the deceased and the accused

were last seen alive and the place where the dead body was

found.

99. The 15th decision referred to is reported as 2009 (3)

SCALE 327 Vithal Eknath Adlinge vs. State of Maharashtra.

100. We need not extensively deal with said decision for

the reason, apart from last-seen evidence there was evidence

of the accused absconding. There was further evidence, which

according to us is fairly incriminating, being that, the room in

which the deceased was killed happened to be the abode of

the accused. Be that as it may, the decision highlights the

importance of a circumstance relatable to the last seen

evidence. The facts of the said case show the circumstance of

the place where the two were last seen, being near the house,

and the circumstance of the place where the dead body was

recovered i.e. being the house of the accused, were of great

importance.

101. The last decision cited is reported as 2009 (8)

SCALE 743 State of Uttar Pradesh vs. Shyam Behari & Anr.

102. Acquitting the accused the High Court had noted

that the evidence pertaining to the last seen was that the

deceased had been seen with the accused on 13.8.1979.

There being no proximity between the place where the

accused and the deceased were last seen vis-à-vis the place

where the dead body was found nor there being any proximity

of time and there being no other evidence of connectivity

between the two, the Supreme Court affirmed the decision of

the High Court.

103. We may summarize the legal position as under:-

(i) Last-seen is a specie of circumstantial evidence and the

principles of law applicable to circumstantial evidence are fully

applicable while deciding the guilt or otherwise of an accused

where the last-seen theory has to be applied.

(ii) It is not necessary that in each and every case

corroboration by further evidence is required.

(iii) The single circumstance of last-seen, if of a kind, where a

rational mind is persuaded to reach an irresistible conclusion

that either the accused should explain, how and in what

circumstances the deceased suffered death, it would be

permissible to sustain a conviction on the solitary

circumstance of last-seen.

(iv) Proximity of time between the deceased being last seen

in the company of the accused and the death of the deceased

is important and if the time gap is so small that the possibility

of a third person being the offender is reasonably ruled out, on

the solitary circumstance of last-seen, a conviction can be

sustained.

(v) Proximity of place i.e. the place where the deceased and

the accused were last seen alive with the place where the

dead body of the deceased was found is an important

circumstance and even where the proximity of time of the

deceased being last seen with the accused and the dead body

being found is broken, depending upon the attendant

circumstances, it would be permissible to sustain a conviction

on said evidence.

(vi) Circumstances relating to the time and the place have to

be kept in mind and play a very important role in evaluation of

the weightage to be given to the circumstance of proximity of

time and proximity of place while applying the last-seen

theory.

(vii) The relationship of the accused and the deceased, the

place where they were last seen together and the time when

they were last seen together are also important circumstances

to be kept in mind while applying the last seen theory. For

example, the relationship is that of husband and wife and the

place of the crime is the matrimonial house and the time the

husband and wife were last seen was the early hours of the

night would require said three factors to be kept in mind while

applying the last-seen theory.

The above circumstances are illustrative and not exhaustive.

At the foundation of the last-seen theory, principles of

probability and cause and connection, wherefrom a reasonable

and a logical mind would unhesitatingly point the finger of guilt

at the accused, whenever attracted, would make applicable

the theory of last-seen evidence and standing alone would be

sufficient to sustain a conviction.

104. Reverting to the facts of the appeals, pertaining to

Crl.Appeal No.362/2001 and Crl.Appeal No.236/2003, the

testimony of Banney Khan shows that he and his brother, the

deceased Ibban Khan, used to sleep on a footpath. On the

intervening night of 17th and 18th June 1998, both brothers

slept on the footpath. The accused and his brother spoke to

each other in the middle of the night at 2:00 AM. His brother

and the accused, after the talk, walked away. Banney Khan

went back to sleep. Not noticing his brother in the morning, he

thought that his brother had gone to answer the call of the

nature. He found his brother dead, at a spot, a little away in

the early hours of the morning of 18th June 1998.

105. The rough site plan Ex.PW-13/B and the site plan to

scale Ex.PW-12/A show the entire area as an open area.

Everyone can access the area. There is no evidence that

Ibban Khan did not came back to sleep on his bed. There is no

evidence that Ibban Khan came back to sleep on his bed. The

testimony of Banney Khan shows that the brothers used to

defecate in the open. The possibility of Ibban Khan coming

back and going to defecate in the morning and on the way

being assaulted by somebody cannot be ruled out.

Unfortunately, the MLC of the deceased throws no light,

wherefrom, the probable time of the death of Ibban Khan can

be determined.

106. Thus, the circumstance relatable to the place,

where the deceased was last seen in the company of the

accused as also the circumstance of the place where the dead

body was found does not rule out anything happening

involving a third person. Thus, howsoever suspicious may be

the evidence of last seen, the same has not attained the status

of proof. In the absence of there being any other evidence

against the appellants of Crl.Appeal No.362/2001 and

Crl.Appeal No.236/2003 we hold that the said appellants are

entitled to the benefit of doubt.

107. Crl.Appeal No.362/2001 and Crl.Appeal

No.236/2003 are allowed. Impugned judgment and order

dated 9.10.2000 is set aside. Appellants Arvind @Chhotu and

Ram Kishan are acquitted of the charge of having murdered

Ibban Khan.

108. The said appellants are on bail. The bail bonds and

surety bonds furnished by them are discharged.

109. Pertaining to Crl.Appeal No.366/2001 and

Crl.Appeal No.490/2001 filed by the appellant Maheshwari and

Vijay Kumar, the evidence of Rajni PW-4, the wife of the

deceased Raj Kumar, shows that she saw her husband leave

his house in the company of the appellants in the evening

between 5:00 PM to 6:00 PM on 3.11.1996. The post-mortem

report Ex.PW-2/A of Raj Kumar probablizes that he died any

time between 11:00 PM to midnight of the intervening night of

3rd and 4th November 1996. The place where Raj Kumar died is

an open space abutting the main public street which bisects

block No.GH-13 Paschim Vihar and Lal Mandir. The place is an

open space accessible to all. There is no evidence that the

deceased was seen in the company of the accused at the

place where his dead body was noted. The post-mortem

report of the deceased shows liquor in his stomach. Obviously,

the deceased had spent meaningful time somewhere, being

merry in drinking. The possibility of a third person accessing

the deceased Raj Kumar and killing him cannot be ruled out.

110. There being no other incriminating evidence against

appellants Maheshwari and Vijay Kumar, we hold that the

theory of last-seen evidence, on being applied to the facts of

the said two appeals, not ruling out the intervention of a third

party requires said appellants to be acquitted of the charge

framed against them of having murdered Raj Kumar.

111. Crl.Appeal No.366/2001 and Crl.Appeal

No.490/2001 are allowed. Impugned judgment and order

dated 15.7.2000 convicting Maheshwari and Vijay Kumar is set

aside. The two are acquitted from the charge of having

murdered Raj Kumar.

112. Both the appellants are on bail. Their bail bonds

and surety bonds are discharged.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE AUGUST 10, 2009 mm/dk/rk