Case: Rambraksh @ Jalim Vs. State of Chhattisgarh

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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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