[2016] 2 S.C.R. 599

RAMBRAKSH \a! JALIM

STATE OF CHHATT!SGARH

(Criminal Appeal No. 462of2016)

MAY12,2016

[JAGDISH SINGH KHEHAR AND C. NAGAPPAN, JJ.)

Penal Code, 1860ss.302/34 ands. 201-Murder- Conviction on the basis of last seen theory - Sustainability of - On facts, commission of murder of R - Prosecution case based upon circumstantial evidence and the last seen theory - Conviction and sentence of accused no. 2 u/s.302134 ands. 201, by courts below - On appeal, held: Deceased was last seen alive in the company of accused on the fateful day and after seven days the bones and clothes allegedly belonging to deceased were noticed and thereafter, seized from the field - Seizure/recovery was not pursuant to any information furnished by the accused - Courts below convicted accused No.2 on the basis of last seen evidence, the correctness of which is doubtfiil - Further, there was failure of the prosecution to prove the death of R either homicidal or otherwise - There was improvement in the testimony of deceased's wife - No explanation by the prosecution for the inordinate delay in lodging the complaint and registering the case.- Independent witnesses examined by the prosecution did not support the case - Thus, conviction and sentence of the accused no. 2 not sustainable and set aside - Evidence.

Evidence - Last seen theory - Conviction on the basis of - When - Held: 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 deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes tmpossible - To record conviction, 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.

Allowing the appeal, the Court

HELD: 1.1 The prosecution case rests only upon the circumstantial evidence. The Sessions Judg~ as well as the High H 599

Court mainly relied upon the evidence of the wife of the deceased PW3 to hold the appellant guilty of the charges. PW3 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 rightly ignored the improved part of her testimony and placed no reliance on it. [Para 7) [604-F; 605-D-E]

1.2 The bones, articles, clothes and shoes allegedly belonging to R were recovered on 15.10.1992. Morgue given by PW 3 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 did not supported the case. As per last een theory projected by the prosecution the deceased 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 the deceased came to be noticed and thereafter seized from the field. They were not seized/recovered pursuant to any information furnished by the accused. [Para 8) [605-F-G)

1.3 The investigation officer seized the bones from the field and sent them for autopsy. PW6 in his report gave an account of the bones forming the skeleton. Thereafter they were sent to Medical College, and PWlO-doctor examined them and gave 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 R. The prosecution has failed to prove the death of R either homicidal or otherwise. [Para 9) [605-H;

606-A-C]

1.4 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 oflast seen together. Normally, last seen theory

RAMBRAKSH @ JAL!M v. STATE OF CHHATTlSGARH

comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive andowhen the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes im possibJe. 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. [Para 10] [606-C-E]

1.5The 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 Conr.t failed to appreciate the said fact and erred.in affirming the.judgment of conviction passed by the Sessions Court. The conviction. and sentence of the appellant. cannot be sustained and is set aside. [Para 12], [607cF-G)

Krishnan v. State of Tamil Nadu (2014) 12 SCC 279: 2014 (9) SCR 340 - referred to.

Case Law Reference

2014 (9) SCR 340 referred to Para 11

CRlMINALAPPELLATE JURISDICTION: Criminal Appeal No.

462 of20 I 6.

From the Judgment and Order dated 25 .07.2014 of the High Court of Chhattisgarh at Bilaspur in Criminal Appeal No. 4 70 of 200 I.

. Vikrant Singh Ba is, Yogesh Tiwari, Advs. for the Appellant.

C. D. Singh, Ms. Sakshi Kakkar, Sandeepan Pathak, Advs. for the F Respondent.

The Judgment of the Court was delivered by

C. NAGAPPAN, J. I. Leave granted. This appeal is preferred against the judgment dated 25. 7.2014 of the High Co ti rt of Chhatisgarh atBilaspur in Criminal Appeal No.470 of2001.

2. The appellant Rambraksh@Jalim was accused No.2 and Bechan Ram was accused No.I .in the case in Sessions Trial No.133of1993, on the file of Additional Sessions Judge, Surajpur, and they were tried for the offences under Section 302 read with 34 and Section 201 of Indian H

Penal Code. The trial court acquitted accused No. I Bechan Ram and at the same time convicted accused No.2 Rambraksh and sentenced him to undergo imprisonment for life and to pay a fine of Rs.500 and in default to undergo rigorous imprisonment for five months for the offence under Section 302 IPC and further sentenced him to undergo two years rigorous imprisonment and to pay a fine ofRs.1.00 in default to undergo rigorous imprisonment for one month for the offence under Section 20 I !PC and ordered the sentences to run concurrently. Aggrieved by the conviction and sentence accused No.2 Rambraksh preferred criminal appeal and the High Court dismissed the same. Challenging the said judgment the present appeal is preferred.

3. The case of the prosecution in a nutshell is as follows~ On 7.10.1992 appellant herein/accused No.2 Rambraksh went to the house of deceased Ramsevak at 12.00 noon and asked to go with him to Ambikapur. Ramsevak refused saying that he does not have money and accused No.2 assured that he has money and he would come at night and they would go to Ambikapur by the first bus in the early morning.

Thereafter healong with accused No. I came to the house of Ramsevak at 11.00 p.m. and told him that they will proceed towards chowki from where they will board the bus to Ambikapur. Ramsevak went with accused and thereafter did not return home. On 14. l 0.1992, Rajesh son of Ramsevak inquired about his father to his mother PW3 Dasmatiya Bai and she told him that his father had gone with accused to Ambikapur and then Rajesh infonned her that he had gone with Kamlesh and PW5 Banshidhar to their field and he noticed clothes, gamcha and shoes of his father in the field. PW3 Dasmatiya Bai along with her son went to the said place and found the articles of her husband and on noticing birds flying near one place they went there and she found skeleton remains of her husband. She went to Chandni Police Station and lodged Exh.P2 morque and the police recorded Morque vide Exh.Pl. The investigation officer visited the scene of occurrence and conducted inquest on the scattered bones vide Exh.PS. Report vide Exh. P4. He seized from the spot one.bamboo stickvide Exh.P6, pair of shoes vide Exh.P7, towel, G pant, shirt, banjan and underwear vide Exh.P8, Bloodstained and plain soil vide Exh.P9, Hairs found on the spot vide Exh.PIO. The human bones i.e. skull, jaw, legs and ribs were seized from the spot vide Exh.P\ 3.

He sent the bones of dead body for autopsy and PW6 Dr. Arvind Bhat on examination found the following :

" I skull bone with 13 teeth.

2 humerus bones

I vertebral column broken in three pieces each attached with each other with left femur attached with pelvis (detail of vertebral colum, sacrum, S lumber vertebrae, 12 thoracic vertebrae),

One mandible attached 7 leech

Two broken scapula

Nine ribs

Two broken long bones (one simulating to tibia and one simulating to femur)

One radio ulna bones

One broken ulna

3 vertebrae

2 detached tooth

4 pieces of broken bones."

Thereafter, dehati nalishi was recorded and FIR was registered vide Exh.P.18. Spot map was prepared vide Exh. Pl9. Bones were sent to Medical College, Raipur and PW I 0 Dr. Sapan Kumar Das examined the bones vide Exh.P23 and opined as follows:

(a)These bones are of human origin

(b)Sex-Male

(c)Age-Between 25 to 40 years

(d)No marks of injury present to any of the bones

( e )Cause of death cannot be said

(f) me lapse since death-within 6 months of the date of examination.

4. In the course of investigation accused No. I Bechan Ram

was arrested and he made disclosure statement leading tq recovecy of d banjan and towel vide Exh.PI I, P16 and Pl7. The accused No.2 was arrested and he made disclosure statement leading to recovery of stick and clothes vide Exh.P12, Pl4 and PIS. The seized articles were.sent for chemical examination vide Exh.P 19. Off completion ofinvestigation charge-sheet was filed against both the accused.

5. In the trial prosecution examined ten witnes>es and the accused were examined under Section 313 of Cr.P.C. and their statements were recorded. No defence witness was examined. The trial court acquitted accused No.I and convicted and sentenced accused No.2 as stated supra. The appeal preferred by him came to be dismissed and aggrieved by the same accused No.2 has preferred the present appeal.

6. The learned counsel for the appellant contended that it was alleged that deceased Ramsevak was last seen alive in the company of the appellant on 7. I 0.1992 and bones were noticed in the field and seized on 14.10.1992 namely 7 days after such last seen theory and there is long time gap and in the absence of any other corroborative piece of evidence the conviction of the appellant only on the basis oflast seen theory is not sustainable law. It is his further submission that prosecution has not even established.the death ofRamsevak and there is no evidence adduced by the prosecution to show that bones recovered were those of deceased Ramsevak and the medical evidence does not in any way advance the prosecution case. Lastly, it is contended that there was inordinate delay of7 days in filing the complaint and PW3 Dasmatiya Bai made material improvements in her testimony before the court and the testimony cannot be relied on. Per contra the learned counsel appearing for the respondent State contended that the prosecution has established through evidence of PW3 Dasmatiya Bai that her husband Ramsevak was taken from house by the appellant and in the absence of any explanation from the appellant as to when he parted company, the Courts below rightly convicted the appellant for the offence of murder and the judgment warrants no interference.

7. The prosecution case rests only upon the circumstantial evidence.

The Sessions Judge as well as the High Court mainly relied upon the evidence of the wife of the deceased PW3 Dasmatiya Bai to hold the appellant guilty of the charges. PW3 Dasmatiya Bai in her complaint as well as in the statement given to the police during investigation has stated that on 7~10.1992 at about 12.00 noon the appellant/accused No.2 came to their house and told her husband Ramsevak to come with him to Ambikapur and left the place by saying that he would return with money in the night and they would leave by the early morning bus to Ambikapur.

It is her further testimony that both the accused came to their house in the night at about I 0.00 p.m."and took her husband Ramsevak with them at 11.00 p.m. for Ambikapur and after that her husband Ramsevak never H returned home. She has further sta.ted that on 14. I 0.1992 her son Rajesh

inquired about the Whereabouts of his father and informed her that he went to the field of Kamlesh where he saw gamcha, shirt, pant and shoes ofhisfather. Thereafter, she went along with him and found the articles of her husband lying in torn condition in the field and on noticing the flying of birds near that place she went and saw the bones of dead body lying scattered and she identified the same as that of her husband and she went to the Police Station and lodged complaint. When she gave evidence as PW3 in the trial before the Court she testified that the accused came to their house at night and took her husband to Ambikapur and after they left she heard scream of her husband .and she ran to the place and saw the appellant/ accused No.2 Rambraksh and accused No.1 Bechan Ram assaulting her husband Ramsevak by lathi and Danda and when she tried to intervene, she was driven away and in the morning while going to police chowki she saw her husband Ramsevak lying dead in the field and she informed the Munshi.at Chandni Police Station and she was asked to come later when called and thereafter she waited 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 Dasmatiy.a 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 ofRamsevak cannot be brushed aside. The investigation officer seized the bones from the field vide Exh.P 13 and sent them for autopsy. PW6 Dr. Arvind Bhat in his

report Exh.P I 0 gave an account of the bones forming the skeleton.

Thereafter they were sent to Medical College, Raipur, and PW I 0 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 D 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 ofTamil 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)

"3 I. 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 wou Id 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) A 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 B 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 ev.idence 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· E 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 reg, ard is believed.

12. In the present case as l]oticed 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 can.not be sustained in law and liable to-be set aside.

13. The appeal is allowed and the inipugnedjudgment of conviction and sentence imposed on the appellant is set aside. The appellant is ordered to be set at liberty forthwith if not required in any other case.

Nidhi Jain Appeal allowed.