IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.457 of 2008 SAIRA KHATOON Versus STATE OF BIHAR & ORS ----------- 4. 7.10.2010. Heard. This revision application has been filed by the informant of Uchkagaon P.S.Case No.122 of 2006 passed by Ist Additional District & Sessions Judge, Gopalganj in Sessions Trial No.140 of 2007/96 of 2007. The grounds for challenging the judgement of acquittal are total non-consideration of evidence by the trial court as well as non- consideration of witnesses in true prospective, which occasioned with failure of the justice. The prosecution case as disclosed in the fardbeyan of Sayera Khatun(P.W.4), mother of deceased Neyaz Ahmed is that in the morning of 4.11.2006 at 6 P.M. Vijay Kumar along with Baliram, Deu Nonia, Raj Kishore Ram and Jagdish Koiri came at her Darwaja and asked her son to accompany them as they are in need of workmen for potato plantation. The informant was told that he will get be accommodated, as the informant was in need of workmen on the next morning for potato plantation. The son of the informant, Neyaz Ahmad, went in their company and till the morning of 5.11.2006. He 2 did not come back. The informant at 11 AM went in search of her son and made enquiry about him, but did not found any clue of him while searching for her son she found her son’s dead body thrown at grave yard. Hid dead body bear cut wounds inflicted by sharp cutting weapon. She also noticed that plenty of blood had fallen on the ground near the dead body on account of injuries caused by sharp cutting weapon. The statement of P.w.4 was recorded by S.I. K.N.Singh (P.W.7) on 5.11.2006 at 8 P.M. in the village itself. During investigation some of the accused persons were not sent up for trial but these three accused persons, namely, deu Nonia, Vijay Kumar and Raj Kishore Ram were chargesheet, cognizance was taken against them for offence under Section 302/34 of the IPC and they have were committed to the court of sessions to face the trial. During trial the prosecution examined seven witnesses out of them P.W.2 is Dr. Sanjay Kumar Singh, who has conducted postmortem examination of the deceased. P.W.6 is the investigating officer. P.W.1 Noor Jehan, P.W.2 Yasmin Khatoon and P.W.4 Sayra Khatoon were examined as witness, who deposed regarding the deceased going in the company of the accused persons. P.W.5 Zamil Ahmed is the witness 3 in whose presence the fardbeyan of P.W. 4 had been recorded by the I.O. (PW7). P.W.6 is a witness on inquest. He was never examined by the I.O. of the case during investigation. The three witnesses P.W.1, 2 and 4 are the only witness who deposed showing some connecting link of the accused persons with the alleged offence. Howerver, the evidence of P.W. 1, 2 and 4 can be combined as a piece of evidence only to the extent that on 4.11.06 at 6 PM they had come to call the deceased, for working as labourer. In between 6 PM of 4.11.06 till 11 PM of 5.11.06, what happened, there is completely no evidence produced by the prosecution. Not a single person, of the village, was examined who could have seen the deceased in the company of the accused persons, in between 6 PM of 1.11.06 till 11 PM on 5.11.06 prior to recovery of dead body lying at the grave-yard. The trial court has discussed the evidence of all the prosecution witnesses in detail and finally, considering the fact that there is no direct evidence connecting these accused with the death of the deceased, except the circumstance of last seen in the company of the deceased, has come to this conclusion that there is no sufficient evidence for their conviction. He has also discussed the theory of last seen for the purposes 4 of convicting an accused in paragraph-28 of the judgement placing reliance on the decision of the Supreme Court 2007 SC(Cri)162 and (2002)8 SCC 45. The trial court has recorded a finding that the last seen theory can be considered for conviction only in case where there is a very short gap in between the deceased being last seen alive in the company of the accused, so that there can be no possibility of any other persons approaching the deceased during the intervening period. We find that the trial court has rightly passed the judgement of acquittal in this case. There is no apparent illegality or error in the judgement. This Criminal Revision is dismissed. B.Kr. ( Mridula Mishra,J. ) ( Dharnidhar Jha, J.)