Case: State Of Goa Vs. Sanjay Thakran

around 00.30 a.m. at the Benaulim Beach. No evidence was led by the prosecution to prove the fact that there was no possibility of any other person approaching D-1 on the beach which is a public place, during the intervening period when A-1 was last seen with the deceased and when the crime was detected.27. We shall now weigh the last seen doctrine with respect to D-2-Priya Nanda. According to P.W.-11, afer about 30 to 45 minutes when he saw A-1 and D-1 walking towards the beach, he had seen A-1 alone while A-2 was sitting with D-2 in the hotel. After some time, he saw the accused persons and D-2 walking away from lguana Miraj Hotel. We can safety assume that P.W.-11 saw both the accused persons along with D-2 latest by around 10.30-11.00 p.m. P.W.-6 Amit Banerjee had only a momentary glance of the lady sitting in the Maruti car who, according to the prosecution, came to Hotel Seema on 27.02.1999 with D-2 with a male person allegedly A-1. P.W.-6 has mentioned that the guard of the hotel had and opportunity to see the persons who came along with D-2. However, the prosecution chose not to examine the guard to identify either A-1 or A-2. It is difficult to believe P.W.-6 that he had seen A-2 sitting in the car when he had got an opportunity to look at her for merely one to two minutes. In his statement, he has described her as a lady with short hair. He has not given any description indicating that he had seen somebody sitting in the car whose face was visible from one side. Even when he was examined by the police, he had not described the features of A-2. In the absence of any other supporting material on record, it will not be possible to believe the statement of P.W.-6 that he had seen A-2 sitting in the car on the night of 27.02.1999 to establish the fact that when D-2 left the hotel she accompanied A-2. Similarly, with respect to A-1, P.W.-6 who had an opportunity to see A-1 for the first time for a very short duration to recognize him to be a person who accompanied D-2 to Hotel Seema on the night of 27.2.1999, he was busy in setting the account with her. That apart, the dead body of D-2 was found at around 7.30 a.m. on 28.02.1999 at Vagator Beach, around 60 kms. from the beach where the dead body of D-1 was recovered and quite a long distance from Hotel Seema. Hence, there has been a considerable time gap of approximately 8 1/2 hours when D-2 was last seen alive with the accused couple. There being a considerable time gap, between the persons seen together and the proximate time of crime, the circumstances of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused.28. It is urged by Mr. Mahendra Anand, the learned senior counsel for the appellant(s), that the accused have not explained as to in what circumstances the victims suffered have not explained as to in what circumstances the victims suffered the death in their statements under Section 313 Cr. P.C. and thus would be held to be liable for homicide. The learned senior counsel for the appellant(s) placed reliance on the following observations of this Court made in Amrit alias Ammu v. State of Maharashtra (2003) 8 SCC 93 : "9. The learned counsel for the appellant has placed reliance on the decision of this Court by a Bench of which one of us (Justice Brijesh Kumar) was member in Mohibur Rahman v. State of Assam, (2002) 6 SCC 715 for the proposition that the circumstance of last seen does not be itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. In the decision relied upon it has been observed that there may be persuaded to reach an 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. The present is a case to which the observation as aforesaid and the principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction. Those circumstances have already been noticed, in which case such an irresistible conclusion can be reached will depend on the facts of each case. Here it has been established that the death took place on 28th March between 3 and 4 p.m. It is just about that much time that the appellant and the deceased were last seen by PW 1 and PW 11. No explanation has been offered in the statement by the appellant recorded under Section 313 Cr. PC. His defence is of complete denial. In our view, the conviction for offence under Sections 302 and 376 has been rightly recorded by the Court of Session and affirmed by the High Court." 29. We have noticed the decision. However, the circumstances in the present case are not similar to the case where the event of the last seen together has very close proximity with the time and place of the commission of the crime and other circumstances also favour the hypothesis of guilt and consequently the fact that no explanation or false explanation offered by the accused was taken as a link in the chain of circumstances. [See also : Birbal v. State of M.P., (2000) 10 SCC 212; Raju v. State of Haryana, (2001) 9 SCC 50 ; and Babu S/o Raveendran v. Babu S/o Bahuleyan and Another (2003) 7 SCC 37 ]. Thus, in the circumstances of the case, the accused persons not giving any explanation in their examination under Section 313, Cr. P.C. could not be taken to be a circumstances pointing towards irresistible conclusion that they are involved in the commission of the crime.

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

Explanation:
1[ds]25. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.26. We will first consider the applicability of the last seen together doctrine with respect to the murder of D-1-Vikas Nanda. According to P.W.14-Calvert Gonsalves, A-1 and D-1 were present outside the Hotel lguana Miraj at around 9.30 p.m. and as told to him by D-1, A-2 and D-2 were sitting inside one of the rooms of the hotel. P.W.11-Dinesh Adhikari has also stated that after serving drinks to A-1, P.W-14 and D-1, he went away. He returned to the hotel at around 9.00-9.30 p.m. and found that only A-1 and D-1 were sitting outside the hotel and P.W.-14 had gone away. He has also mentioned that A-2 and D-2 were sitting inside a room of the hotel. According to P.W.-11, and D-1 started walking towards the beach after some time when he saw them sitting together at around 9.00-9.30 p.m. After about 30 to 45 minutes, he saw A-1 alone in the hotel. According to the prosecution version, A-1 murdered D-1 by drowning him in the shallow beach water. However, it is highly improbable that A-1, who at the relevant time was in his late 30s, was able to overpower D-1 who was not only well-built but also about 10 years younger and taller than him. We have also noticed that when the dead body of D-1 was recovered. It had no clothes except an undergarment. It is highly unlikely that a single person not only forcefully drowned the deceased D-1 in the shallow beach water but also forced him to take out all the clothes and ornaments which he was wearing at that time. The post-mortem report also does not mention any serious injury on any of the vital parts of D-1 to support the prosecution version. It is clear from the deposition of P.W.-11 that A-1 went along with D-1. P.W.-14 has also stated that A-2 and D-2 were sitting inside a room of the hotel. From this evidence; it is clear that A-1 had no role whatsoever to play with reference to the murder of D-1-Vikas Nanda, especially when the prosecution has not been able to produce any material or evidence to establish the fact that they either pre-planned a plot or conspired with each other to murder the deceased couple to carve away their valuable materials. We have also not found any other link in the chain of circumstances to conclusively establish that A-1 murdered D-1 or A-2 played any role in assisting him to murder D-1. Even if we believe the evidence of P.W.-11 that he saw D-1 in the company of A-1 walking towards the beach and thereafter saw A-1 returning alone after 30 to 45 minutes. there has been a time gap of about 2 1/4 hours when A-1 and D-1 were last seen together and when the dead body of D-1 was found at around 00.30 a.m. at the Benaulim Beach. No evidence was led by the prosecution to prove the fact that there was no possibility of any other person approaching D-1 on the beach which is a public place, during the intervening period when A-1 was last seen with the deceased and when the crime was detected.27. We shall now weigh the last seen doctrine with respect to D-2-Priya Nanda. According to P.W.-11, afer about 30 to 45 minutes when he saw A-1 and D-1 walking towards the beach, he had seen A-1 alone while A-2 was sitting with D-2 in the hotel. After some time, he saw the accused persons and D-2 walking away from lguana Miraj Hotel. We can safety assume that P.W.-11 saw both the accused persons along with D-2 latest by around 10.30-11.00 p.m. P.W.-6 Amit Banerjee had only a momentary glance of the lady sitting in the Maruti car who, according to the prosecution, came to Hotel Seema on 27.02.1999 with D-2 with a male person allegedly A-1. P.W.-6 has mentioned that the guard of the hotel had and opportunity to see the persons who came along with D-2. However, the prosecution chose not to examine the guard to identify either A-1 or A-2. It is difficult to believe P.W.-6 that he had seen A-2 sitting in the car when he had got an opportunity to look at her for merely one to two minutes. In his statement, he has described her as a lady with short hair. He has not given any description indicating that he had seen somebody sitting in the car whose face was visible from one side. Even when he was examined by the police, he had not described the features of A-2. In the absence of any other supporting material on record, it will not be possible to believe the statement of P.W.-6 that he had seen A-2 sitting in the car on the night of 27.02.1999 to establish the fact that when D-2 left the hotel she accompanied A-2. Similarly, with respect to A-1, P.W.-6 who had an opportunity to see A-1 for the first time for a very short duration to recognize him to be a person who accompanied D-2 to Hotel Seema on the night of 27.2.1999, he was busy in setting the account with her. That apart, the dead body of D-2 was found at around 7.30 a.m. on 28.02.1999 at Vagator Beach, around 60 kms. from the beach where the dead body of D-1 was recovered and quite a long distance from Hotel Seema. Hence, there has been a considerable time gap of approximately 8 1/2 hours when D-2 was last seen alive with the accused couple. There being a considerable time gap, between the persons seen together and the proximate time of crime, the circumstances of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused.28. It is urged by Mr. Mahendra Anand, the learned senior counsel for the appellant(s), that the accused have not explained as to in what circumstances the victims suffered have not explained as to in what circumstances the victims suffered the death in their statements under Section 313 Cr. P.C. and thus would be held to be liable for homicide. The learned senior counsel for the appellant(s) placed reliance on the following observations of this Court made in Amrit alias Ammu v. State of Maharashtra (2003) 8 SCC 93 The learned counsel for the appellant has placed reliance on the decision of this Court by a Bench of which one of us (Justice Brijesh Kumar) was member in Mohibur Rahman v. State of Assam, (2002) 6 SCC 715  for the proposition that the circumstance of last seen does not be itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. In the decision relied upon it has been observed that there may be persuaded to reach an 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. The present is a case to which the observation as aforesaid and the principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction. Those circumstances have already been noticed, in which case such an irresistible conclusion can be reached will depend on the facts of each case. Here it has been established that the death took place on 28th March between 3 and 4 p.m. It is just about that much time that the appellant and the deceased were last seen by PW 1 and PW 11. No explanation has been offered in the statement by the appellant recorded under Section 313 Cr. PC. His defence is of complete denial. In our view, the conviction for offence under Sections 302 and 376 has been rightly recorded by the Court of Session and affirmed by the High Court.We have noticed the decision. However, the circumstances in the present case are not similar to the case where the event of the last seen together has very close proximity with the time and place of the commission of the crime and other circumstances also favour the hypothesis of guilt and consequently the fact that no explanation or false explanation offered by the accused was taken as a link in the chain of circumstances. [See also : Birbal v. State of M.P., (2000) 10 SCC 212; Raju v. State of Haryana, (2001) 9 SCC 50 ; and Babu S/o Raveendran v. Babu S/o Bahuleyan and Another (2003) 7 SCC 37 ]. Thus, in the circumstances of the case, the accused persons not giving any explanation in their examination under Section 313, Cr. P.C. could not be taken to be a circumstances pointing towards irresistible conclusion that they are involved in the commission of the crime.