Case: Hatti Singh Vs. State of Haryana

PW-10, he went to Haridwar on 12.07.1995 and came back on 24.07.1995. He was not even informed about the fact that the deceased was missing. His statement, as noticed hereinbefore, was recorded only on 25.07.1995. He allegedly made a statement to the effect that the appellant and his associates were known to him. After he made the said statement, he was taken to the Villages Bass. The accused having not been found there and having been told that they were at Badchhaper. He went there and Police arrested both Hatti and Naresh together. Therefore, the arrest of the said accused must have taken place on 25.07.1995. The Investigating Officer, however, stated that they were arrested on 29.07.1995. It is, therefore, difficult to accept that he is a reliable witness or the theory that the deceased was last seen with the appellant had been established. 24. The testimonies of PW-11, as noticed hereinbefore, had not been relied upon by the learned Trial Judge. 25. It may be true that there had been some recoveries from the appellant including a purse and an electricity bill; but then a ring was also recovered from Naresh. He has been acquitted. A watch was recovered from another accused. The only distinctive features to hold the appellant guilty of commission of the offences, while acquitting the other three are only last seen and a confession leading to recovery of number plate of the vehicle. Other accused were also last seen with the deceased, if PW-10 is to be believed. 26. The evidence of last seen by itself apart from having not been proved in this case cannot be of much significance. It may provide for a link in the chain. But unless the time gap between the deceased of having been last seen in the company of the accused persons and the murder is proximate, it is difficult to prove the guilt of the accused only on that basis. 27. In Ramreddy Rajesh Khanna Reddy and Another v. State of Andhra Pradesh [(2006) 10 SCC 172] , this Court noticed: "27. The last-seen theory, furthermore, 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. Even in such a case courts should look for some corroboration. In State of U.P. v. Satish [(2005) 3 SCC 114] , this Court observed: "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 case to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of others 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. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2." [See also Bodh Raj & Bodha & Ors. Vs. State of Jammu & Kashmir AIR 2002 SC 3164 .]" [See also State of Goa v. Sanjay Thakran and Anr. JT 2007 (5) SC 146 ] There cannot be any doubt that conviction can be based on circumstantial evidence, but therefor the prosecution must establish that the chain of circumstances only consistently point to the guilt of the accused and in inconsistent with his innocence. Circumstances, as is well known, from which an inference of guilt is sought to be drawn are required to be cogently and firmly established. They have to be taken into consideration cumulatively. They must be able to conclude that within all human probability the accused committed the crime. [See Geejaganda Somaiah v. State of Karnataka - AIR 2007 SCW 1681]. Reliance has been placed by the learned counsel for the State on a decision of this Court in Kashi Ram (supra), wherein it was held that the incriminating circumstances must from a complete chain and must be consistent with no other hypothesis except the guilt of the accused. 28. Therein, this Court was dealing with a case where the accused had killed his wife and two daughters. As in the aforementioned situation, when the deceased were last seen the respondent therein, Section 106 of the Indian Evidence Act was held to be applicable. As in a case of that nature, probability of a wife being murdered by an outsider may ordinarily be ruled out, failure to offer an explanation by the husband in the aforementioned situation would itself be a circumstance which may be taken into consideration therefore. [See also Raj Kumar Prasad Tamarkar v. State of Bihar & Another — 2007 (1) SCALE 19 — Para 24 & 25]. The said decision, in our opinion, is not applicable to the fact of the instant case. 29. The learned counsel for the State would submit that recovery of the articles would raise a presumption under Section 114 of the Indian Evidence Act. Application of such a presumption is limited. A presumption may be in respect of commission of theft or receipt of stolen property; if a person is found to be in possession of the property belonging to the deceased, but on such presumption alone, the appellant could not have been convicted for commission of murder particularly when on the same evidence other persons had been given benefit of doubt. 30. Having regard to the peculiar facts and circumstances of the case, we are inclined to extend the same benefit to the appellant herein.

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

Explanation:
1[ds]e cannot be any doubt that conviction can be based on circumstantial evidence, but therefor the prosecution must establish that the chain of circumstances only consistently point to the guilt of the accused and in inconsistent with his innocence. Circumstances, as is well known, from which an inference of guilt is sought to be drawn are required to be cogently and firmly established. They have to be taken into consideration cumulatively. They must be able to conclude that within all human probability the accused committed the crime. [See Geejaganda Somaiah v. State of KarnatakaAIR 2007 SCW 1681].e has been placed by the learned counsel for the State on a decision of this Court in Kashi Ram (supra), wherein it was held that the incriminating circumstances must from a complete chain and must be consistent with no other hypothesis except the guilt of the accused.Therein, this Court was dealing with a case where the accused had killed his wife and two daughters. As in the aforementioned situation, when the deceased were last seen the respondent therein, Section 106 of the Indian Evidence Act was held to be applicable. As in a case of that nature, probability of a wife being murdered by an outsider may ordinarily be ruled out, failure to offer an explanation by the husband in the aforementioned situation would itself be a circumstance which may be taken into consideration therefore. [See also Raj Kumar Prasad Tamarkar v. State of Bihar & Another — 2007 (1) SCALE 19 — Para 24 & 25].e said decision, in our opinion, is not applicable to the fact of the instant case.The learned counsel for the State would submit that recovery of the articles would raise a presumption under Section 114 of the Indian Evidence Act. Application of such a presumption is limited. A presumption may be in respect of commission of theft or receipt of stolen property; if a person is found to be in possession of the property belonging to the deceased, but on such presumption alone, the appellant could not have been convicted for commission of murder particularly when on the same evidence other persons had been given benefit of doubt.Having regard to the peculiar facts and circumstances of the case, we are inclined to extend the same benefit to the appellant herein.