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Friday, September 25, 2015

‘last seen together’ theory = 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 deceased were last seen together. The prosecution story relies upon the ‘last seen together’ theory, which resulted into the death of Ganesh. This Court has time and again laid down the ingredients to be made out by the prosecution to prove the ‘last seen together’ theory. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not, may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that close proximity between the last seen evidence and death should be clearly established. Yet, the prosecution has failed to prove the evidence which establishes the ‘last seen together’ theory beyond reasonable doubt to prove the guilt of the accused. The prosecution merely proved the motive which could have compelled the accused, and that the accused went to the bar with one other person, but the identity of that other person is not clearly established at all. The post-mortem report fails to specify any approximate time of death and in light of the recovery of the dead body on 20.01.2001, after 4 days, which is not a small gap since the deceased disappeared on 16.01.2001, it is not appropriate to convict the accused when his role is not firmly established. Thus, in the light of the above discussion, we are of the view that the present appeal is devoid of merits, and we find no grounds to interfere with the judgment passed by the High Court. The appeal is, accordingly

                                                              NON REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 1547  OF 2011
STATE OF KARNATAKA          …..                   APPELLANT
                                   VERSUS
CHAND BASHA            …..                  RESPONDENT



                                  JUDGMENT
Pinaki Chandra Ghose, J.
This appeal, by special leave, has been directed against  the  judgment  and
order dated 1st March, 2007  passed  by  the  High  Court  of  Karnataka  at
Bangalore in Criminal Appeal No. 1047/2003, whereby the High  Court  allowed
the criminal appeal filed by the respondent herein and acquitted him.

The brief facts necessary to dispose of this appeal are that one  Ganesh,  a
daily-wage mason, went missing on 16.01.2001. On 20.01.2001,  PW1  D.  Ramu,
Dhobi by profession, saw a dead body floating in a well near the Dhobi  Ghat
with hands tied at the back and  the  ankles  were  also  tied.  The  police
recovered the dead  body,  shifted  it  to  Bowring  Hospital  Mortuary  and
thereafter published the photograph of the dead body in the newspaper.  From
this photograph, PW3 father of the deceased, reached  the  Bowring  Hospital
and identified the body as that of his son Ganesh. PW1  lodged  a  complaint
with K.G. Halli Police Station and  investigation  started,   and  from  the
apprehension of PW3, accused Chand Basha was  arrested  on  23.01.2001.  The
investigation revealed that on 17.01.2001, PW12 (Appu)  told  PW3  that  his
son had gone to a wet party with the accused on  16.01.2001.  The  said  wet
party took place at Sindhur Bar at Lingarajapuram.  PW5  (the  bar-boy)  and
PW6 (owner of the bar) testified that on 16.01.2001, the accused along  with
one other person visited their  bar.  Building  further,  the  investigation
came across with PW8 (shopkeeper) who testified that the accused along  with
one other person bought 2 cigarettes from  his  shop  on  16.01.2001  at  10
p.m., and  the accused  thereafter  was  arrested  on  23.01.2001,  but  the
deceased was never seen alive again.

Police filed the charge sheet  against  accused  Chand  Basha,  after  which
charges for offence punishable under Sections 302  and  201  of  the  Indian
Penal Code, 1860 (hereinafter referred to  as  “IPC”)  were  framed  by  the
Trial Court and the charges were read over and explained to the accused  but
he pleaded not guilty and claimed trial.

The Trial Court  by its judgment and order dated 14.02.2003,  convicted  the
respondent Chand Basha for the offence punishable under Section 302 IPC  and
sentenced him to rigorous imprisonment for life and a fine of Rs.15,000/-  ,
and in default of payment of fine, further  rigorous  imprisonment  for  six
months was awarded. Being aggrieved by the aforesaid judgment and  order  of
the Trial Court, the respondent-accused filed  an  appeal  before  the  High
Court of Karnataka at Bangalore, being Criminal  Appeal  No.1047  of   2003.
The High Court by the impugned  judgment  and  order  allowed  the  criminal
appeal on the ground that the prosecution might have proved the  motive  but
had miserably failed to prove the incriminating last seen  circumstance  and
had also failed to successfully  prove  the  discovery  evidence.  The  High
Court held that the death may be a homicidal, but there is  no  evidence  to
connect the accused with the crime. In view of the aforesaid  discrepancies,
the High Court set aside the order of conviction passed by the  Trial  Court
and acquitted the respondent.

The Appellant - State has challenged before us  the  judgment  of  acquittal
passed by the High Court.  Learned counsel for the appellant has inter  alia
raised the following grounds as incriminating circumstances in this  appeal.
Firstly, the motive behind the murder of the deceased was  consistently  and
cogently proved by the testimony of  PW3 father of the  deceased,   and  PW4
sister of the deceased. Agreeing to this submission,  the  High  Court  also
held that motive can be successfully attributed upon  the  accused  that  he
wanted  to  marry  PW4  (sister  of  the  deceased)  which  was   vehemently
disapproved by the deceased  and  PW3  (father).  Secondly,  the  death  was
argued to be homicidal and there is already  a  concurrent  finding  of  the
courts below that the death was homicidal. Thirdly, the present  case  rests
on the last seen theory, and by the  consistent  testimonies  of  PW5  (bar-
boy), PW6 (owner of the bar), PW8  (shopkeeper)  and  PW12  (Appu),  it  was
proved that on 16.01.2001 the deceased was last seen in the company  of  the
accused. Lastly, the learned  counsel  for  State  rests  her  case  on  the
recovery of the material objects at the voluntary instance of  the  accused.
This recovery has itself been testified by independent witnesses.

Learned senior counsel appearing for the respondent rebutted  the  arguments
advanced by the appellant State  by  putting  his  weight  on  the  decision
arrived at by the High Court.  Learned  senior  counsel  appearing  for  the
respondent did not rebut the arguments put forward to prove the  motive  and
also that the death was homicidal. However, it was  argued  that  the  ‘last
seen together’ theory was not proved beyond reasonable doubt. The  discovery
of  material objects was argued on the line of the High  Court  decision  to
be an artificial theory. Learned senior counsel went ahead arguing that  the
extra-judicial confession made by the accused to PW4,  who  narrated  it  to
PW3, was not trustworthy. Attention was also drawn to the  cross-examination
of  PW12 who contradicted his examination-in-chief that it was  Raju  Mistry
and not the accused who hosted the wet party.

The Trial Court convicted the respondent on the  basis  of  the  prosecution
story of  'last seen together'   corroborated  with  'recovery  of  material
objects' and the 'motive of the accused'.  The High Court  also  dealt  with
the  issue  and  held  that  the  Trial  Court  failed  to  appreciate   the
discrepancies occurring in the evidences. The High  Court  has  examined  at
length the record of the case and reversed the finding of the Trial Court.

In   the  present   appeal,   we   are   concerned   with   the   last   two
contentions  as to whether   the  ‘last  seen  together’   theory  has  been
proved beyond reasonable doubt and also whether the recovery is a  naturally
occurring fact or an artificially planted one?

The High Court pointed out discrepancies in the statements of PW5  and  PW6.
Both the witnesses stated that they did not  personally  know  the  deceased
and neither of them were friends to him nor  they  ever  took  his  personal
details. It was only during the investigation on 24.01.2001,  that  the  two
came  to  know  that  the  deceased’s   name  was  Ganesh.  The  High  Court
considered the fact of recovery of material  objects,  but  disbelieved  the
recovery of Saree and shoe lace as ‘artificial’ as  they  could  not  adduce
confidence of having occurred naturally in the chain of events.

We have heard the learned counsel appearing for the appellant  as  also  the
learned senior counsel appearing for the respondent  and  have  perused  the
records. The prosecution story relies upon the 'last seen together’   theory
as its pivotal  evidence  which  is  hereunder  examined.   The  prosecution
examined PW5, PW 6 and PW8 to prove the ‘last seen theory’. PW5 the bar  boy
claims to be the person who served the accused and one more  person  with  3
quarters of RR Brandi and 1 Knock-Out beer on 16.01.2001. PW6 is  the  owner
of the bar who testified in his statement that the accused came  along  with
one  other  person.  These  witnesses   were   first   questioned   by   the
Investigation Officer on 24.01.2001 and both deposed before the  Court  that
their bar is usually crowded and they neither make personal  interaction  to
each and  every  customer  nor  do  they  take  details  of  each  of  their
customers. PW 5 and PW6 also deposed that the two persons were  also  served
2 fried chicken. According  to  these  witnesses,  the  two  customers  were
served at about 8:30 PM. PW8 (shopkeeper)  is  another  prosecution  witness
who testified that at about 10.00 PM on 16.01.2001, the accused  along  with
one other person came to his shop  and  bought  two  cigarettes   of  Rs.2/-
each. This witness has also deposed that he does  not  personally  know  the
accused or the other accompanying person. On careful  examination  of  their
depositions and cross-examination and also in light  of  the  other  medical
evidence, some doubt is raised upon the chain of events. PW5 and PW6  stated
that they were not personally acquainted to  the  accused.  However,  during
investigation when the Investigating Officer, accompanied  by  the  accused,
asked them, they were able to identify him as their  customer  who  came  on
16.01.2001 along  with  one  other  person.  At  this  point  of  time,  the
Investigating Officer disclosed the name of that other person as Ganesh  and
stated  that  he  was  dead.  Thereafter,  PW6  did  not  depose  about  any
photograph being shown to him. However, PW5 was shown a  photograph  of  the
deceased and thereby he stated that he was the same person who  was  present
with the accused on 16.01.2001. The role of  the  Investigating  Officer  is
therefore doubted, as within a very short span of  time,  why  PW6  was  not
shown the photograph and only PW5 was shown the photograph of the  deceased.
 PW5 also did not disclose the details of the  photograph,  but  it  can  be
presumed that he was shown the photograph of the dead body. From  a  perusal
of medical evidence it appears that the dead body was stout, the  complexion
had changed and bite marks of aquatic animals  were  present  especially  on
the face, since it was recovered from the well.  From  a  perusal  of  post-
mortem report, it transpires that the stomach contained  partially  digested
vegetables and rice.  However, PW5 and PW6 deposed that the accused and  the
deceased at last ordered 2 chicken fry. During investigation,  PW8  was  not
shown the photograph of  the  deceased,  moreover,  in  the  examination  no
question was asked about the identity of the other person who  was  together
with the accused. This goes on to create a serious doubt on the  ‘last  seen
together’ theory.

The prosecution pressed hard on the fact that the accused  as  well  as  the
deceased were together on 16.01.2001 and the deceased was never seen  again.
The dead body was recovered on 20.01.2001 i.e. after 3 days  and  4  nights.
PW1 Dhobi deposed that he goes to the well daily  to  wash  clothes  and  no
question was asked as to the presence of a dead  body  in  the  well  before
20.01.2001. Thus, the possibility of the  deceased  being  thrown  into  the
well later than 16.01.2001 cannot  be  ruled  out  completely,  particularly
when the post-mortem revealed that the victim last ate vegetables and  rice.
Even if depositions of PW5 and PW6 are relied upon, there exists  a  missing
link between the visit to the bar and the deceased  being  thrown  into  the
well i.e. the deceased having another meal.

The High Court  rightly  rejected  the  two  recoveries  made  as  it  seems
artificial that the accused intending to kill the deceased will not  prepare
well. Having two shoe laces at his disposal, why will he  cut  a  shoe  lace
into two to tie the hands of the deceased. Similarly,  the  piece  of  Saree
which was recovered near the well is doubted  as  an  accused  intentionally
committing a crime will not bother to cut a piece of cloth into  two  before
tying. These evidences were sent to FSL on 25.2.2001 i.e. after 1  month  of
the alleged recovery. The recovery of these material objects seems  more  of
an unnatural occurrence. The  High  Court  also  rightly  ruled  out  extra-
judicial confession as deposed by PW4. PW4 in her cross-examination  deposed
that she narrated the said extra-judicial confession of the accused  to  her
father PW3. PW3 also came to know  that his son  (deceased)  had  gone  with
the accused to a wet party. There arises doubt upon the conduct of  PW3  who
knew that his son was missing since 16.01.2001 and he also heard  of  extra-
judicial confession of the accused, yet he did not report to the police.

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 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.”



Reiterating the above ratio, this Court recently in Krishnan @ Ramasamy  and
Others v. State of Tamil Nadu, (2014) 12 SCC 279, held that:

“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.”


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  deceased
were last seen together.

The prosecution story relies upon the ‘last  seen  together’  theory,  which
resulted into the death of Ganesh. This Court has time and again  laid  down
the ingredients to be made out by the prosecution to prove  the  ‘last  seen
together’ theory. The Court for the purpose of arriving at a finding  as  to
whether  the  said  offence  has  been  committed  or  not,  may  take  into
consideration the circumstantial evidence. However, while doing so, it  must
be borne in mind that close proximity between the  last  seen  evidence  and
death should be clearly established. Yet,  the  prosecution  has  failed  to
prove the evidence which establishes the ‘last seen together’ theory  beyond
reasonable doubt to prove the guilt of the accused. The  prosecution  merely
proved the motive which could have  compelled  the  accused,  and  that  the
accused went to the bar with one other person,  but  the  identity  of  that
other person is not clearly  established  at  all.  The  post-mortem  report
fails to specify any approximate time of death and in light of the  recovery
of the dead body on 20.01.2001, after 4 days,  which  is  not  a  small  gap
since the deceased disappeared on 16.01.2001,   it  is  not  appropriate  to
convict the accused when his role is not firmly established.

Thus, in the light of the above discussion, we are  of  the  view  that  the
present appeal is devoid of merits, and we  find  no  grounds  to  interfere
with the judgment passed by the High  Court.  The  appeal  is,  accordingly,
dismissed.

                                 ….........................................J
                                    (Pinaki Chandra Ghose)


                                  …........................................J
                                     (R.K. Agrawal)

New Delhi;


September 18, 2015.



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