Friday, 27 May 2016

When accused cannot be convicted for murder solely on basis of “last seen together” theory?

It is trite law that a conviction cannot be recorded
against the accused merely on the ground that the
accused was last seen with the deceased. In other
words, a conviction cannot be based on the only
circumstance of last seen together. Normally, 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 perpetrator of the crime becomes
impossible. To record a conviction, the last seen
together itself would not be sufficient and the
prosecution has to complete the chain of circumstances
to bring home the guilt of the accused.
 In a similar fact situation this Court in the case of
Krishnan v. State of Tamil Nadu [(2014) 12 SCC 279,
held as follows:
“21. The conviction cannot be based only on
circumstance of last seen together with the
deceased. In Arjun Marik v. State of Bihar (1994)
Supp (2) SCC 372)
“31. Thus the evidence that the appellant had
gone to Sitaram in the evening of 19-7-1985
and had stayed in the night at the house of
deceased Sitaram is very shaky and
inconclusive. Even if it is accepted that they
were there it would at best amount to be the
evidence of the appellants having been seen
last together with the deceased. But it is
settled law that the only circumstance of last
seen will not complete the chain of
circumstances to record the finding that it is
consistent only with the hypothesis of the guilt
of the accused and, therefore, no conviction on
that basis alone can be founded.”
22. This Court in Bodhraj v. State of J&K (2002) 8
SCC 45) held that:
“31. The last seen theory comes into play
where the time gap between the point of time
when the accused and the deceased were last
seen 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 will be hazardous to come to a conclusion of
guilt in cases where there is no other positive
evidence to conclude that the accused and the
deceased were last seen together.
23. There is unexplained delay of six days in
lodging the FIR. As per prosecution story the
deceased Manikandan was last seen on 4-4-2004
at Vadakkumelur Village during Panguni Uthiram
Festival at Mariyamman Temple. The body of the
deceased was taken from the borewell by the fire
service personnel after more than seven days.
There is no other positive material on record to
show that the deceased was last seen together with
the accused and in the intervening period of seven
days there was nobody in contact with the
deceased.
24. In Jaswant Gir v. State of Punjab (2005) 12
SCC 438), this Court held that in the absence of
any other links in the chain of circumstantial
evidence, the appellant cannot be convicted solely
on the basis of “last seen together” even if version
of the prosecution witness in this regard is
believed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 462 of 2016
(Arising out of SLP(Crl.) No.1962 of 2015)
Rambraksh @ Jalim .. Appellant
versus
State of Chhattisgarh .. Respondent
Dated;May 12, 2016
C. NAGAPPAN, J.

1. Leave granted. This appeal is preferred against the
judgment dated 25.7.2014 of the High Court of
Chhatisgarh at Bilaspur in Criminal Appeal No.470 of
2001.
2. The appellant Rambraksh @ Jalim was accused No.2
and Bechan Ram was accused No.1 in the case in
Sessions Trial No.133 of 1993, on the file of Additional
Sessions Judge, Surajpur, and they were tried for the
offences under Section 302 read with 34 and Section
201 of Indian Penal Code. The trial court acquitted
accused No.1 Bechan Ram and at the same time
convicted accused No.2 Rambraksh and sentenced him
to undergo imprisonment for life and to pay a fine of
Rs.500 and in default to undergo rigorous
imprisonment for five months for the offence under
Section 302 IPC and further sentenced him to undergo
two years rigorous imprisonment and to pay a fine of
Rs.100 in default to undergo rigorous imprisonment for
one month for the offence under Section 201 IPC and
ordered the sentences to run concurrently. Aggrieved by
the conviction and sentence accused No.2 Rambraksh
preferred criminal appeal and the High Court dismissed
the same. Challenging the said judgment the present
appeal is preferred.
3. The case of the prosecution in a nutshell is as follows:
On 7.10.1992 appellant herein/accused No.2
Rambraksh went to the house of deceased Ramsevak at
12.00 noon and asked to go with him to Ambikapur.
Ramsevak refused saying that he does not have money
and accused No.2 assured that he has money and he
would come at night and they would go to Ambikapur by
the first bus in the early morning. Thereafter he along
with accused No.1 came to the house of Ramsevak at
11.00 p.m. and told him that they will proceed towards
chowki from where they will board the bus to
Ambikapur. Ramsevak went with accused and
thereafter did not return home. On 14.10.1992, Rajesh
son of Ramsevak inquired about his father to his mother
PW3 Dasmatiya Bai and she told him that his father had
gone with accused to Ambikapur and then Rajesh
informed her that he had gone with Kamlesh and PW5
Banshidhar to their field and he noticed clothes,
gamcha and shoes of his father in the field. PW3
Dasmatiya Bai along with her son went to the said place
and found the articles of her husband and on noticing
birds flying near one place they went there and she
found skeleton remains of her husband. She went to
Chandni Police Station and lodged Exh.P2 morque and
the police recorded Morque vide Exh.P1. The
investigation officer visited the scene of occurrence and
conducted inquest on the scattered bones vide Exh.P5.
Report vide Exh. P4. He seized from the spot one
bamboo stick vide Exh.P6, pair of shoes vide Exh.P7,
towel, pant, shirt, banjan and underwear vide Exh.P8,
Bloodstained and plain soil vide Exh.P9, Hairs found on
the spot vide Exh.P10. The human bones i.e. skull,
jaw, legs and ribs were seized from the spot vide
Exh.P13. He sent the bones of dead body for autopsy
and PW6 Dr. Arvind Bhat on examination found the
following :
“ 1 skull bone with 13 teeth.
• 2 humerus bones
• 1 vertebral column broken in three pieces each
attached with each other with left femur attached
with pelvis (detail of vertebral colum, sacrum, 5
lumber vertebrae, 12 thoracic vertebrae),
• One mandible attached 7 teech
• Two broken scapula
• Nine ribs
• Two broken long bones (one simulating to tibia
and one simulating to femur)
• One radio ulna bones
• One broken ulna
• 3 vertebrae
• 2 detached tooth
• 4 pieces of broken bones.”
Thereafter, dehati nalishi was recorded and FIR was
registered vide Exh.P.18. Spot map was prepared vide Exh.
P19. Bones were sent to Medical College, Raipur and PW10
Dr. Sapan Kumar Das examined the bones vide Exh.P23 and
opined as follows:
(a)These bones are of human origin
(b)Sex-Male
(c)Age-Between 25 to 40 years
(d)No marks of injury present to any of the bones
(e) Cause of death cannot be said
(f) Time lapse since death-within 6 months of the date
of examination.

4. In the course of investigation accused No.1 Bechan Ram
was arrested and he made disclosure statement leading
to recovery of banjan and towel vide Exh.P11, P16 and
P17. The accused No.2 was arrested and he made
disclosure statement leading to recovery of stick and
clothes vide Exh.P12, P14 and P15. The seized articles
were sent for chemical examination vide Exh.P19. On
completion of investigation charge-sheet was filed
against both the accused.
5. In the trial prosecution examined ten witnesses and the
accused were examined under Section 313 of Cr.P.C.
and their statements were recorded. No defence witness
was examined. The trial court acquitted accused No.1
and convicted and sentenced accused No.2 as stated
supra. The appeal preferred by him came to be
dismissed and aggrieved by the same accused No.2 has
preferred the present appeal.
6. The learned counsel for the appellant contended that it
was alleged that deceased Ramsevak was last seen alive
in the company of the appellant on 7.10.1992 and bones
were noticed in the field and seized on 14.10.1992
namely 7 days after such last seen theory and there is
long time gap and in the absence of any other
corroborative piece of evidence the conviction of the
appellant only on the basis of last seen theory is not
sustainable law. It is his further submission that
prosecution has not even established the death of
Ramsevak and there is no evidence adduced by the
prosecution to show that bones recovered were those of
deceased Ramsevak and the medical evidence does not
in any way advance the prosecution case. Lastly, it is
contended that there was inordinate delay of 7 days in
filing the complaint and PW3 Dasmatiya Bai made
material improvements in her testimony before the court
and the testimony cannot be relied on. Per contra the
learned counsel appearing for the respondent State
contended that the prosecution has established through
evidence of PW3 Dasmatiya Bai that her husband
Ramsevak was taken from house by the appellant and in
the absence of any explanation from the appellant as to
when he parted company, the Courts below rightly
convicted the appellant for the offence of murder and the
judgment warrants no interference.
7. The prosecution case rests only upon the circumstantial
evidence. The Sessions Judge as well as the High Court
mainly relied upon the evidence of the wife of the
deceased PW3 Dasmatiya Bai to hold the appellant guilty
of the charges. PW3 Dasmatiya Bai in her complaint as
well as in the statement given to the police during
investigation has stated that on 7.10.1992 at about
12.00 noon the appellant/accused No.2 came to their
house and told her husband Ramsevak to come with
him to Ambikapur and left the place by saying that he
would return with money in the night and they would
leave by the early morning bus to Ambikapur. It is her
further testimony that both the accused came to their
house in the night at about 10.00 p.m. and took her
husband Ramsevak with them at 11.00 p.m. for
Ambikapur and after that her husband Ramsevak never
returned home. She has further stated that on
14.10.1992 her son Rajesh inquired about the
whereabouts of his father and informed her that he went
to the field of Kamlesh where he saw gamcha, shirt, pant
and shoes of his father. Thereafter, she went along with
him and found the articles of her husband lying in torn
condition in the field and on noticing the flying of birds
near that place she went and saw the bones of dead
body lying scattered and she identified the same as that
of her husband and she went to the Police Station and
lodged complaint. When she gave evidence as PW3 in
the trial before the Court she testified that the accused
came to their house at night and took her husband to
Ambikapur and after they left she heard scream of her
husband and she ran to the place and saw the
appellant/accused No.2 Rambraksh and accused No.1
Bechan Ram assaulting her husband Ramsevak by lathi
and Danda and when she tried to intervene, she was
driven away and in the morning while going to police
chowki she saw her husband Ramsevak lying dead in
the field and she informed the Munshi at Chandni Police
Station and she was asked to come later when called
and thereafter she waited for 7 days and then again
went to the Police Station and lodged the complaint. As
already stated PW3 Dasmatiya Bai in her complaint as
well as her statement before the police has not told that
she witnessed the occurrence during which both the
accused assaulted her husband with lathi and Danda.
Only in her testimony before the Court she claimed to
have witnessed the occurrence. The High Court has
rightly ignored the improved part of her testimony and
placed no reliance on it.
8. The bones, articles, clothes and shoes allegedly
belonging to Ramsevak were recovered on 15.10.1992.
Exh.P2 Morgue given by Dasmatiya Bai was recorded
and the FIR came to be registered on 15.10.1992. There
is absolutely no explanation given by the prosecution for
the inordinate delay in lodging the complaint and
registering the case. The independent witnesses
examined by the prosecution have not supported the
case. As per last seen theory projected by the
prosecution the deceased Ramsevak was last seen alive
in the company of the appellant on 7.10.1992 and after
7 days the bones and clothes allegedly belonging to
Ramsevak came to be noticed and thereafter seized from
the field. At this juncture, it is pertinent to point out
that they were not seized/recovered pursuant to any
information furnished by the accused.
9. The contention for the learned counsel for the appellant
that the prosecution has not even established the death
of Ramsevak cannot be brushed aside. The investigation
officer seized the bones from the field vide Exh.P13 and
sent them for autopsy. PW6 Dr. Arvind Bhat in his
report Exh.P10 gave an account of the bones forming the
skeleton. Thereafter they were sent to Medical College,
Raipur, and PW10 Dr. Sapan Kumar Das examined
them and gave Exh.P23 opinion stating that the bones
are of human origin and they belonged to male aged
between 25 to 40 years and there were no marks of
injury in any of the bones and the cause of death cannot
be said and the death could have occurred within 6
months prior to the date of examination. The
Investigation Officer did not take any attempt to
conduct DNA analysis of bones to prove that the
skeleton seized was that of Ramsevak. In short the
prosecution has failed to prove the death of Ramsevak
either homicidal or otherwise.
10. It is trite law that a conviction cannot be recorded
against the accused merely on the ground that the
accused was last seen with the deceased. In other
words, a conviction cannot be based on the only
circumstance of last seen together. Normally, 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 perpetrator of the crime becomes
impossible. To record a conviction, the last seen
together itself would not be sufficient and the
prosecution has to complete the chain of circumstances
to bring home the guilt of the accused.
11. In a similar fact situation this Court in the case of
Krishnan v. State of Tamil Nadu [(2014) 12 SCC 279,
held as follows:
“21. The conviction cannot be based only on
circumstance of last seen together with the
deceased. In Arjun Marik v. State of Bihar (1994)
Supp (2) SCC 372)
“31. Thus the evidence that the appellant had
gone to Sitaram in the evening of 19-7-1985
and had stayed in the night at the house of
deceased Sitaram is very shaky and
inconclusive. Even if it is accepted that they
were there it would at best amount to be the
evidence of the appellants having been seen
last together with the deceased. But it is
settled law that the only circumstance of last
seen will not complete the chain of
circumstances to record the finding that it is
consistent only with the hypothesis of the guilt
of the accused and, therefore, no conviction on
that basis alone can be founded.”
22. This Court in Bodhraj v. State of J&K (2002) 8
SCC 45) held that:
“31. The last seen theory comes into play
where the time gap between the point of time
when the accused and the deceased were last
seen 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 will be hazardous to come to a conclusion of
guilt in cases where there is no other positive
evidence to conclude that the accused and the
deceased were last seen together.
23. There is unexplained delay of six days in
lodging the FIR. As per prosecution story the
deceased Manikandan was last seen on 4-4-2004
at Vadakkumelur Village during Panguni Uthiram
Festival at Mariyamman Temple. The body of the
deceased was taken from the borewell by the fire
service personnel after more than seven days.
There is no other positive material on record to
show that the deceased was last seen together with
the accused and in the intervening period of seven
days there was nobody in contact with the
deceased.
24. In Jaswant Gir v. State of Punjab (2005) 12
SCC 438), this Court held that in the absence of
any other links in the chain of circumstantial
evidence, the appellant cannot be convicted solely
on the basis of “last seen together” even if version
of the prosecution witness in this regard is
believed.
12. In the present case as noticed above the Sessions
Court as well as the High Court convicted the appellant/
accused No.2 on the basis of last seen evidence, the
correctness of which is also doubtful. The High Court
had failed to appreciate the aforesaid fact and erred in
affirming the judgment of conviction passed by the
Sessions Court. We are satisfied that the conviction of
the appellant cannot be sustained in law and liable to be
set aside.
13. The appeal is allowed and the impugned judgment of
conviction and sentence imposed on the appellant is set
aside. The appellant is ordered to be set at liberty
forthwith if not required in any other case.
…….….……………………….J.
(JAGDISH SINGH KHEHAR)
….……………………………..J.
(C. NAGAPPAN)
New Delhi
May 12, 2016
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1 comment:

  1. 'Last seen' theory should be capable of excluding any other possibility and that to without an iota of doubt...

    ReplyDelete