IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT Suresh Vs. State of Rajasthan (D.B. CRIMINAL APPEAL No.1592/2002) D. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 25-11-2002 in Sessions Case No.17/2001 (50/1996) passed by Shri Anil Kumar Suroliya, RHJS, Additional Sessions Judge (Fast Track) No.1, Jhunjhunu. Date of Judgment: May 08, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Biri Singh, for the appellant. Mr. Ashvini Sharma, Public Prosecutor for the State. Mr. D.V. Tholia, for the complainant. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) Alone, in silence Sunil had to wend on the thorny path of life. Soon after the marriage her husband Suresh, appellant herein, started harassing her in connection with demand of dowry. When demand was not fulfilled, Sunil was ousted from her Sasural. Even in her parental house her life's race was obstructed and she was throttled to death. Appellant was indicted for having committed murder of Sunil before learned Additional Sessions Judge, Fast Track, No.1, Jhunjhunu. Learned Judge vide judgment dated November 25, 2002 convicted and sentenced him as under:- U/s.302 IPC: To suffer imprisonment for life and fine of Rs.5000/- in default to further suffer simple imprisonment for five months. U/s.498A IPC: To suffer rigorous imprisonment for three years and fine of Rs.2000/- in default to further suffer simple imprisonment for two months. Sentences were ordered to run concurrently. 2. It is the prosecution case that on September 18, 1995 informant Bhoma Ram (Pw.5) submitted a written report (Ex.P-5) at Police Station Bisau District Jhunjhunu stating therein that his daughter Sunil was married to Suresh on May 14, 1995. Immediately after the marriage the in-laws of Sunil, started harassing her for the demand of sum of Rs.25,000/-, machine, cooler etc. On September 16, 1995 Suresh came to village Shivdayalpura and had a quarrel for demand of dowry and in the night of September 17, 1995 he killed Sunil and ran away. On the next day morning when Sunil's mother went to the room of Sunil she found her lying dead. On that report, case under sections 498A, 304B and 302 IPC was registered and investigation commenced. Necessary memos were drawn, statements of witnesses were recorded, appellant was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.1 Jhunjhunu. Charges under sections 302 and 498A IPC were framed against the appellant, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 21 witnesses. In the explanation under Sec.313 CrPC, the appellant claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated above. 3. We have heard the submissions advanced before us by learned counsel for the appellant, learned counsel for complainant and learned Public Prosecutor and scanned the material on record. 4. There is no ocular version of the incident and the prosecution entirely based its case on circumstantial evidence. The standard of proof required to convict a person on circumstantial evidence is now well established by a series of decisions of Supreme Court. According to that standard the circumstances relied upon in support of conviction must be fully established and the chain of evidence must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime. 5. Having regard to these principles enunciated with regard to the proof of guilt by circumstantial evidence we shall now examine the various circumstances said to be appearing against the appellant. (i) Death of Sunil was homicidal in nature. (ii) A day before death of Sunil the appellant Suresh had a quarrel with her parents in connection with demand of dowry and this was the motive behind the crime. (iii) In the night of 17th the appellant and Sunil were together in the house of Sunil and appellant was seen wandering on the roof and smoking cigarettes. (iv) The appellant silently escaped from the house in the mid night and he was seen going out of the house of Sunil by the witnesses. HOMICIDAL DEATH: 6. Death of Sunil was concededly homicidal in nature. Vide postmortem report (Ex.P-8) following antemortem injuries were found on the dead body:- One thumb marked 3 finger tips marks in form of bruise are situated on both side of wind pipe placed obliquely down wards and outwards thumb mark is slightly wider and higher than finger tips marks. These bruises are dise shaped 1 to 2 cm diameter and brownish. Dr. Ramesh Chandra Sundariya (Pw.8), who performed autopsy on the dead body, being the member of Medical Board, opined that cause of death was asphyxia and various congestion due to throttling. MOTIVE: 7. Bhoma Ram (Pw.5) in his deposition stated that his daughter Sunil was married to Suresh on May 14, 1995. He was residing in Jhunjhunu for last 15-16 years and indulged in the business of selling milk. Ramavtar and Anchi were his neighbour. Since they were maternal uncle and aunt of Suresh, they took keen interest in performing marriage of Sunil with Suresh. Sunil's younger sister Sunita was also married to Ranjeet, younger brother of Suresh. Soon after the marriage Sunil was harassed in connection with the demand for dowry. She remained in the house of her in-laws for eight days. During that period she was not properly behaved by Suresh. On her return to Peehar, Bhoma Ram kept her with him and got her admitted in School Niradhnu. After three months of the marriage, Suresh made attempt to meet Sunil in the school, but he was not allowed. One day when Sunil was returning from school Suresh threatened her to kill if demanded articles were not given to him. Suresh, his mother Dhudi, Anchi and Ramavtar thereafter came to his house in presence of Harphool and Pyare Lal and demanded dowry articles. On 17th Suresh came to his house and had a quarrel with him. Suresh remained in his house alone with Sunil and escaped silently in the mid night. In the morning Rukmani (Pw.3), mother of Sunil, found her lying dead. Bhoma Ram was subjected to searching cross examination but his testimony could not be shattered. Testimony of Bhoma Ram gets corroboration from the statement of Rukmani (Pw.3) and Santosh (Pw.2). 8. The prosecution is thus able to establish that appellant had a quarrel with Bhoma Ram, father of deceased, in connection with demand of dowry just before the incident and he was present in the house of Bhoma Ram on the night of 17th and remained alone in Chaubara with the deceased. SUNIL WAS LAST SEEN ALIVE WITH APPELLANT: 9. Jaideo Singh (Pw.10) in his deposition stated that in the night of September 17, 1995 he stayed at the house of Mam Chand. In the night of September 17, 1995 around 10-11 while he (Jaideo) and Mam Chand were sitting in the house of Mam Chand, they saw Suresh wandering on the roof of the house of Bhoma Ram. He was smoking cigarettes. After sometime Suresh and Sunil entered the room. There was light of lantern on the roof. Around 2-3 AM in the mid night while dogs started barking, they saw one person going out of the house of Bhoma Ram. He and Mam Chand then followed the person and found that it was Suresh. Testimony of Jaidev Singh gets corroboration from the evidence of Mam Chand (Pw.11). 10. Having closely scanned the cross examination of Jai Dev and Mam Chand witnesses, we find that nothing which is favourable to the appellant, could be extracted. On examining these witnesses from the point of view of trustworthiness we find them reliable. From the testimony of Jai Dev and Mam Chand it is established that Sunil was last seen alive in the company of appellant. The time gap between the point of time when the appellant and Sunil were last seen alive and when Sunil was found dead was so small that possibility of any person other than the appellant being the author of the crime becomes impossible. 11. “Last seen theory” has been the subject matter of various judicial decisions. In State of U.P. Vs. Satish (2005)3 SCC 114, their Lordships of Supreme Court had occasion to consider “last seen theory” and it was indicated as under:- (Para 22) “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 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.” 12. In Ramreddy Rajesh Khanna Reddy Vs. State of AP (2006)10 SCC 172, the Apex Court held that 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 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. 13. In Mohibur Rahman Vs. State of Assam (2002)6 SCC 715 the Apex Court held as under:- “The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. 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 death, a rational mind may be persuaded to reach in 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. In the present case there is no such proximity of time and place. The dead body had been recovered about 14 days after the death on which the deceased was last seen in the company of the co-accused. The distance between the two places is about 30-40 km. The event of the two accused persons having departed with the deceased and thus last seen together does not bear such close proximity with the death of the victim by reference to time or place. Merely because the co-accused was last seen with the deceased a few unascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. So far as the offence under section 201 IPC is concerned there is no evidence worth the name available against him. He is entitled to an acquittal. Accordingly, the co- accused's conviction under Sections 302/34 and 201/34 IPC along with the sentence passed thereon is set aside. He is acquitted. He shall be released forthwith unless required to be detained in connection with any other offence.” 14. In Bodhraj Vs. State of J&K (2002)8 SCC 45 The Apex Court held that 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 was also held that it would 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. It was further held that where two views are possible, the view in favour of the accused has to be preferred. But where the relevant materials are not considered to arrive at a view by the trial court, the High Court has a duty to arrive at a correct conclusion taking a view different from the one adopted by the trial court. On facts, reversal of acquittal by High Court was held proper. 15. In State of Karnataka Vs. MV Mahesh (2003) 3 SCC 353, the Apex Court indicated as under:- (para 3) “Even if we proceed on the basis that the DNA examination resulted in identifying the bones found by the police as that of Beena, still what has to be established is involvement of the respondent in the commission of her murder. For that purpose reliance is placed upon the evidence of Pws.2,6,17,28 and 29 who claim to have seen Beena in the company of the respondent. The explanation sought to be offered by the respondent is that he took her to the place of her relatives next morning at about 5.45 am. while the evidence of the witnesses referred to just now is that they saw her last on 28-11-1985. The statement made by the respondent was false is not established. Merely being seen last together is not enough. What has to be established in a case of this nature is definite evidence to indicate that Beena had been done to death of which the respondent is or must be aware as also proximate to the time of being last seen together. No such clinching evidence is put forth. It is no doubt true that even in absence of the corpus delicit it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the court. In this case no such material is made available to the court.” 16. The prosecution in our opinion has established following circumstances against the appellant:- (i) Sunil was last seen alive in the company of appellant. The appellant was seen wandering and smoking cigarettes on the roof of Sunil's house in the night of 17th and on 18th morning stumps of cigarette were found near the dead body of Sunil. (ii) The motive behind the death of Sunil was demand of dowry. (iii) The appellant escaped silently in the odd hours of mid-night. (iv) In the morning Sunil was found dead. (v) Death of Sunil was homicidal in nature. 17. From the facts established we find that the circumstantial evidence in the instant case does not fall short of the required standard of proof. The circumstances so established are consistent only with the guilt of appellant and inconsistent with his innocence. All the circumstances exclude with certainty the possibility of guilt of any person other than the appellant. 18. In the ultimate analysis, we find a combination of facts creating network through them there is no escape for the appellant. The material collected by the prosecution is qualitatively such that on every reasonable hypothesis the conclusion is that appellant is guilty. We find that the chain of circumstantial evidence against the appellant is complete and incapable of any explanation or any other hypothesis than of the guilt of the appellant. 19. For these reasons, we find no merit in the instant appeal and the same stands accordingly dismisssed and conviction and sentence of appellant under sections 302 and 498A IPC are confirmed. In so far as direction to award compensation is concerned, we find that under Section 357 CrPC, the compensation can only be awarded out of the fine imposed. Since in the present case, fine in the sum of Rs.7,000/- has been imposed, compensation to the tune of Rs.20,000/- could not have been awarded. We, therefore, set aside the direction of awarding compensation of Rs.20,000/- but direct that if the fine imposed on the appellant is realised, a sum of Rs.5,000/- shall be paid to the legal heirs of the deceased as compensation. (Mahesh Bhagwati),J.(Shiv Kumar Sharma)J. arn/