Case: State of Maharashtra Vs. Ratan

by any stretch of imagination, it cannot be believed that when P.W.2-Pravin told her that respondent-Ratan took deceased Sachin with him and when he did not return to house during said night; she did not do anything. The natural conduct of P.W.1-Laxmibai would have been to lodge F.I.R. or at least to inform police about missing of deceased Sachin or that the respondent kidnapped deceased Sachin and taken with him, and more particularly on the backdrop of motive stated by P.W.1-Laxmibai of previous enmity between accused and her family. There are no reasons forthcoming or placed on record for five days delay in lodging F.I.R. by P.W.1-Laxmibai.8. Coming to the evidence of P.W.2-Pravin, his evidence is mainly on deceased Sachin was last seen in the company of respondent-Ratan on 22.05.1999 at 07.30 p.m. Thereafter, deceased Sachin was not seen by anybody. Upon careful perusal of the cross-examination of P.W.2-Pravin, it is seen that he stated before the police in his statement that respondent-Ratan told him to go home and accused Ratan took Sachin with him. However, he stated that he is not aware why such statement is not recorded by the concerned Investigating Officer.9. P.W.7-Budhwant who conducted investigation as Investigating Officer in his cross-examination stated that P.W.2-Pravin has not stated him that respondent-Ratan told him to go to house and taken away Sachin (deceased) with him. It is further stated by him in his cross-examination that he recorded statement of witness P.W.3-Waman Hazare and he did not state in his statement that accused No.3-Baburao threatened him to kill any member of his family. Insofar as evidence of P.W.4-Kaka on last seen together is concerned, we find considerable force in the arguments of learned Counsel appearing for the respondent that, the conduct of P.W.4-Kaka not to disclose for four days that he had seen deceased Sachin on 22.05.1999 in the company of the accused and they went to Dayanand College, appears to be unnatural. We have noticed that statement of P.W.4-Kaka was recorded by police, after the gap of four days from 22.05.1999, when deceased Sachin was last seen in the company of the respondent.10. Upon careful perusal of evidence of P.W.6-Dr. Chandakant, he stated that time of death was within six hours from last meal. Even if we believe the evidence of P.W.2-Pravin, that deceased Sachin was last seen in the company of respondent-Ratan at about 07.30 p.m. on 22.05.1999, it has come on record that dead body of deceased Sachin was recovered from the well situated in Dayanand College area on 23.05.1999 at 01.05 p.m. Upon careful perusal of evidence brought on record by the prosecution, the prosecution has not explained/brought on record the circumstances/evidence which would explain the time gap from 07.30 p.m. on 22.05.1999 till the dead body was recovered from the well situated in the area of Dayanand College. The time gap between deceased Sachin last seen in the company of the respondent as stated by the prosecution witnesses and the dead body was recovered is not so small that in absence of any explanation offered by the prosecution, said can be ignored. The Supreme Court in the case of Shyamal Ghosh v. State of W.B.,(2012) 7 S.C.C. 646, on the basis of the evidence in that case, in Para 74 of the Judgment, observed that reasonableness of the time gap is of some significance. If the time gap is very large, then it is not only difficult but may not even be proper for the Court to infer that the accused had been last seen alive with the deceased and the former, thus, was responsible for commission of the offence.The Supreme Court in the case Rambraksh alias Jalim v. State of Chhatisgarh, A.I.R. 2016 S.C. 2381 held that, 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 accuse 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. While considering the case based upon circumstantial evidence, the Supreme Court in the case of Hanuman Govind Nargundkar and another v. State of M.P., AIR 1952 SC 343 observed as under :"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."12. Upon considering the evidence in its entirety, we are of the view that in the first place there are no incriminating circumstances brought on record by the prosecution which would form complete chain, and would unequivocally lead to the only hypothesis of guilt of the accused. In that view of the matter, the view taken by the Trial Court is possible, and therefore we are not able to persuade ourselves to cause any interference in the impugned judgment and order of acquittal of the respondent.

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

Explanation:
0[ds]The Supreme Court in the case Rambraksh alias Jalim v. State of Chhatisgarh, A.I.R. 2016 S.C. 2381 held that, 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 accuse 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. While considering the case based upon circumstantial evidence, the Supreme Court in the case of Hanuman Govind Nargundkar and another v. State of M.P., AIR 1952 SC 343   observed as under :"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."12. Upon considering the evidence in its entirety, we are of the view that in the first place there are no incriminating circumstances brought on record by the prosecution which would form complete chain, and would unequivocally lead to the only hypothesis of guilt of the accused. In that view of the matter, the view taken by the Trial Court is possible, and therefore we are not able to persuade ourselves to cause any interference in the impugned judgment and order of acquittal of the respondent.