Crl.A.Nos.362/2001, 236/2003, 366/2001 & 490/2001 Page 1 of 42 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 2 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 Crl.A.Nos.362/2001, 236/2003, 366/2001 & 490/2001 Page 3 of 42 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 Crl.A.Nos.362/2001, 236/2003, 366/2001 & 490/2001 Page 4 of 42 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 Crl.A.Nos.362/2001, 236/2003, 366/2001 & 490/2001 Page 5 of 42 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 Crl.A.Nos.362/2001, 236/2003, 366/2001 & 490/2001 Page 6 of 42 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 Crl.A.Nos.362/2001, 236/2003, 366/2001 & 490/2001 Page 7 of 42 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 Crl.A.Nos.362/2001, 236/2003, 366/2001 & 490/2001 Page 8 of 42 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 Crl.A.Nos.362/2001, 236/2003, 366/2001 & 490/2001 Page 9 of 42 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 Crl.A.Nos.362/2001, 236/2003, 366/2001 & 490/2001 Page 10 of 42 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. Crl.A.Nos.362/2001, 236/2003, 366/2001 & 490/2001 Page 11 of 42 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 Crl.A.Nos.362/2001, 236/2003, 366/2001 & 490/2001 Page 12 of 42 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 Crl.A.Nos.362/2001, 236/2003, 366/2001 & 490/2001 Page 13 of 42 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 Crl.A.Nos.362/2001, 236/2003, 366/2001 & 490/2001 Page 14 of 42 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 Crl.A.Nos.362/2001, 236/2003, 366/2001 & 490/2001 Page 15 of 42 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 Crl.A.Nos.362/2001, 236/2003, 366/2001 & 490/2001 Page 16 of 42 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 Crl.A.Nos.362/2001, 236/2003, 366/2001 & 490/2001 Page 17 of 42 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 Crl.A.Nos.362/2001, 236/2003, 366/2001 & 490/2001 Page 18 of 42 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