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Tuesday, September 15, 2015

Where time gap is long it would be unsafe to base the conviction on the “last seen theory”;= In view of the time gap between Manoj left in the truck and the recovery of the body and also the place and circumstances in which the body was recovered, possibility of others intervening cannot be ruled out. In the absence of definite evidence that appellants and deceased were last seen together and when the time gap is long, it would be dangerous to come to the conclusion that the appellants are responsible for the murder of Manoj and are guilty of committing murder of Manoj. Where time gap is long it would be unsafe to base the conviction on the “last seen theory”; it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution. From the facts and evidence, we find no other corroborative piece of evidence corroborating the last seen theory. In case of circumstantial evidence, court has to examine the entire evidence in its entirety and ensure that the only inference that can be drawn from the evidence is the guilt of the accused. In the case at hand, neither the weapon of murder nor the money allegedly looted by the appellants or any other material was recovered from the possession of the appellants. There are many apparent lapses in the investigation and missing links:–(i) Non-recovery of stolen money; (ii) The weapon from which abrasions were caused; (iii) False case lodged by PW-2 alleging that he was being robbed by some other miscreants; (iv) Non-identification of the dead body and (v) Non-explanation as to how the deceased reached Maniya village and injuries on his internal organ (penis). Thus we find many loopholes in the case of the prosecution. For establishing the guilt on the basis of the circumstantial evidence, the circumstances must be firmly established and the chain of circumstances must be completed from the facts. The chain of circumstantial evidence cannot be said to be concluded in any manner sought to be urged by the prosecution. The “last seen theory” seems to have substantially weighed with the courts below and the High Court brushed aside many loopholes in the prosecution case. None of the circumstances relied upon by the prosecution and accepted by the courts below can be said to be pointing only to the guilt of the appellants and no other inference. If more than one inferences can be drawn, then the accused must have the benefit of doubt. In the facts and circumstances of the case, we are satisfied the conviction of the appellants cannot be sustained and the appeal ought to be allowed. 21. The conviction of the appellants under Sections 302 and 201 IPC is set aside and the appeal is allowed. The appellants are in jail and they are ordered to be set at liberty forthwith if not required in any other case.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 413 OF 2007

NIZAM & ANR.
...Appellants

                                   Versus

STATE OF RAJASTHAN                        ...Respondent


                               J U D G M E N T

R. BANUMATHI, J.


This appeal assails the correctness of the judgment dated 01.07.2005  passed
by the High Court of  Judicature  at  Rajasthan  Jaipur  Bench  in  Criminal
Appeal No.1248 of 2002, whereby the High Court confirmed the  conviction  of
the accused-appellants under Sections 302 and 201 IPC and sentence  of  life
imprisonment imposed on each of them with a fine of Rs.2,000/- with  default
clause and also two years rigorous imprisonment  with  a  fine  of  Rs.500/-
with default clause respectively.
2.          Case of the prosecution is that deceased-Manoj  was  the  helper
on the truck No.MP-07-2627 and had gone to  Pune  and  thereafter  to  Barar
alongwith his first driver Raj Kumar   (PW-2) and second driver Ram  Parkash
(PW-1) and from Barar they loaded the truck with pipes  for  destination  to
Ghaziabad on 23.01.2001.  Accused-appellants Nizam  and  Shafique  who  were
the driver and cleaner respectively on the truck No.DL-1GA-5943 also  loaded
their truck with pipes from the same company on the same day  at  Barar  and
started for Ghaziabad alongwith truck  No.MP-07-2627.   During  this  period
drivers and cleaners of both the trucks  developed  acquaintance  with  each
other.  While on the way to Ghaziabad, driver  Raj  Kumar  (PW-2)  of  truck
No.MP-07-2627 got into quarrel with  some  local  persons  and  consequently
Barar police detained him alongwith his truck. Faced  with  such  situation,
Raj Kumar (PW-2) instructed his second driver Ram  Parkash  (PW-1)  to  hand
over the amount of Rs.20,000/- to Manoj with instructions to give the  money
to the truck owner.   Accordingly,  Manoj  left  for  Gwalior  with  accused
persons by the truck No.DL-1GA-5943 on 23.01.2001.
3.          Dead body  of  deceased-Manoj  was  found  on  26.01.2001  under
suspicious circumstances in a field near village Maniya.  On  26.01.2001  at
about 3.00 O’clock, one Koke Singh (PW-13) went to collect  the  fodder  and
found a dead body lying in the field and the same was  informed  to  Shahjad
   Khan (PW-4).  Based on the written information by  Shahjad  Khan  (PW-4),
case was registered in FIR No.16/2001 under Sections  302  and  201  IPC  on
26.01.2001   at   Thana-Maniya,   District   Dholpur.   Gullu   Khan(PW-16)-
Investigating Officer  seized the dead body and prepared a  Panchnama.   One
bilty   (Ex. P17)  of  Uttar  Pradesh,  Haryana  Roadlines  (Pune)  and  one
receipt (Ex. P18) of Madhya Pradesh Government, Shivpuri Naka pertaining  to
truck No. DL-1GA-5943 were recovered from the pocket of trouser of deceased-
Manoj and in the said bilty     (Ex.P-17), name of the driver was  mentioned
as Nizam and truck No.DL-1GA-5943 and some  phone  numbers.   Based  on  the
clues obtaining in the bilty, accused Nizam and Shafique  were  arrested  on
27.01.2001  and  the  truck  No.DL-1GA-5943   was   recovered.   After   due
investigation, chargesheet was filed against  the  appellants-accused  under
Sections 302 and 201 IPC.
4.          To bring home the guilt of the  accused-appellants,  prosecution
has   examined   twenty   one   witnesses.    Incriminating   evidence   and
circumstances were put to accused-appellants under Section 313 Cr. P.C.  and
the accused denied all of them and  accused  stated  that  Manoj  had  never
travelled in their truck DL-1GA-5943. Additional Sessions Judge, Fast  Track
Court No.2, Dholpur held that the  appellants-accused  committed  murder  of
deceased-Manoj to grab Rs.20,000/- and the prosecution has  established  the
circumstances proving the accused-appellants guilty under Sections  302  and
201 IPC and sentenced each of them to undergo life imprisonment with a  fine
of Rs.2,000/- with default clause and two years rigorous  imprisonment  with
a fine of Rs.500/- with  default  clause  respectively.   Aggrieved  by  the
verdict of conviction, appellants-accused preferred appeal before  the  High
Court of Rajasthan,  which  vide  impugned  judgment  dismissed  the  appeal
thereby  confirming  the  conviction  of  the  accused-appellants  and  also
respective sentence of imprisonment and  fine  amount  imposed  on  each  of
them. Being aggrieved, the appellants have preferred this appeal.
5.          Learned counsel for the  appellants  submitted  that  the  “last
seen theory” is not applicable to the instant case  as  there  were  serious
contradictions as to the date and time in which Manoj  allegedly  left  with
the appellants. It was further argued that the amount of Rs.20,000/-   which
was allegedly taken by deceased-Manoj was not recovered from the  possession
of  the appellants. Learned counsel submitted that the circumstances  relied
upon by the prosecution are not firmly established and the circumstances  do
not form a complete chain establishing the guilt  of  the  accused  and  the
appellants are falsely roped in.
6.          Per contra, learned counsel for the  respondent-State  contended
that the deceased having huge amount of money travelled in  the  company  of
the accused-appellants and when the prosecution  has  established  that  the
deceased-Manoj  was  last  seen  alive  in  the  company  of  the   accused-
appellants, it was for the accused to explain as to  what  happened  to  the
deceased and in the absence of any explanation from the  accused  and  based
on  the   circumstantial  evidence  courts  below  rightly   convicted   the
appellants and the impugned judgment  warrants no interference.
7.          We  have  considered  the  rival  contentions  and  perused  the
impugned judgment and material on record.
8.          Case of the prosecution is entirely based on the  circumstantial
evidence. In a case based on circumstantial evidence, settled  law  is  that
the circumstances from which the conclusion of  guilt  is  drawn  should  be
fully  proved  and  such  circumstances  must  be  conclusive   in   nature.
Moreover, all the circumstances should be  complete,  forming  a  chain  and
there should be no gap left in the chain of evidence.  Further,  the  proved
circumstances must be consistent only with the hypothesis of  the  guilt  of
the accused totally inconsistent with his evidence.
9.          The principle of circumstantial evidence has been reiterated  by
this Court in a plethora of cases. In Bodhraj @ Bodha  And  Ors.  vs.  State
of Jammu & Kashmir,(2002) 8 SCC 45, wherein  this  court  quoted  number  of
judgments and held as under:-
“10. It has been consistently laid down by this  Court  that  where  a  case
rests squarely on circumstantial evidence, the inference  of  guilt  can  be
justified only when all the incriminating facts and circumstances are  found
to be incompatible with the innocence of the accused or  the  guilt  of  any
other person. (See Hukam Singh v. State of Rajasthan (1977) 2 SCC 99,  Eradu
v. State of Hyderabad AIR 1956 SC 316, Earabhadrappa v. State  of  Karnataka
(1983) 2 SCC 330, State of U.P. v. Sukhbasi (1985) Suppl. SCC 79,  Balwinder
Singh v. State of Punjab (1987) 1 SCC 1 and Ashok Kumar Chatterjee v.  State
of M.P., 1989 Suppl. (1) SCC 560) The circumstances from which an  inference
as to the guilt of the accused is drawn have to be proved beyond  reasonable
doubt and have to be shown to be closely connected with the  principal  fact
sought to be inferred from those circumstances. In Bhagat Ram  v.  State  of
Punjab AIR 1954 SC 621 it was laid down that where  the  case  depends  upon
the conclusion  drawn  from  circumstances  the  cumulative  effect  of  the
circumstances must be such as to negative the innocence of the  accused  and
bring home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court  in  C.  Chenga
Reddy v. State of A.P. (1996) 10 SCC  193,  wherein  it  has  been  observed
thus: (SCC pp. 206-07, para 21)
“21. In a case based on circumstantial evidence, the  settled  law  is  that
the circumstances from which the conclusion of  guilt  is  drawn  should  be
fully proved and such circumstances must be conclusive in nature.  Moreover,
all the circumstances should be complete and there should be no gap left  in
the chain of evidence. Further, the proved circumstances must be  consistent
only  with  the  hypothesis  of  the  guilt  of  the  accused  and   totally
inconsistent with his innocence.”

10.         In Trimukh Maroti Kirkan vs. State  of  Maharashtra,  (2006)  10
SCC 681, this court held as under:
“12. In the case in hand there is no eyewitness of the  occurrence  and  the
case of  the  prosecution  rests  on  circumstantial  evidence.  The  normal
principle  in  a  case  based  on  circumstantial  evidence  is   that   the
circumstances from which an inference of guilt is sought to  be  drawn  must
be cogently and firmly established; that those circumstances should be of  a
definite tendency unerringly pointing towards  the  guilt  of  the  accused;
that the circumstances taken cumulatively should form a  chain  so  complete
that  there  is  no  escape  from  the  conclusion  that  within  all  human
probability the crime was committed  by  the  accused  and  they  should  be
incapable of explanation on any hypothesis other than that of the  guilt  of
the accused and inconsistent with their innocence.”

The same principles were reiterated in Sunil Clifford Daniel  vs.  State  of
Punjab,  (2012)  11  SCC  205,  Sampath  Kumar  vs.  Inspector  of   Police,
Krishnagiri (2012) 4 SCC 124 and Mohd. Arif  @  Ashfaq  vs.  State  (NCT  of
Delhi), (2011) 13 SCC 621 and a number of other decisions.
11.         By perusal of the testimonies of PWs 1, 2  and  3,  it  is  seen
that PW1-Ram Parkash and PW2-Raj Kumar along  with  deceased  cleaner  Manoj
got their truck No. MP-07-2627 loaded with pipes at Barar and  at  the  same
time another truck  No.DL-1GA-5943 of the accused  Nizam  and  Shafique  was
also loaded with pipes. On the way to Ghaziabad, quarrel took place  between
the drivers of the truck No. MP 07-2627  and  some  local  persons  and  Raj
Kumar (PW-2) was detained by the police.  Raj Kumar  (PW-2)  instructed  Ram
Parkash (PW-1) to  hand  over  the  amount  of  Rs.20,000/-  to  Manoj  with
instructions to give this money to the truck owner and  he  was  sent  along
with accused Nizam and Shafique in the other truck DL-1GA-5943.  PWs  1  and
2 further stated that after being released from  the  police  station,  they
went to Gwalior and enquired about Manoj from their owner Rajnish Kant  (PW-
3) who had no knowledge about Manoj.  In the meanwhile, based on  the  bilty
and the receipt recovered from the pocket of the trouser of  deceased-Manoj,
Maniya police contacted PW-3-owner of the truck and on being  so  contacted,
PWs 1 to 3 went to Maniya Police Station and identified the deceased  person
as Manoj through his clothes and photographs.
12.         Based on the evidence of PWs 1 and  2,  courts  below  expressed
the view that motive for murder of Manoj was the lust for  the  money  which
Manoj was carrying. Courts below based the conviction of the  appellants  on
the circumstances “last seen theory” as stated by PWs 1  and  2  along  with
recovery of bilty and receipt by PW-6 on  which  the  name  of  the  accused
person (Nizam) was printed. The appellants are  alleged  to  have  committed
murder of Manoj for the amount which Manoj was carrying.   But  neither  the
amount of Rs.20,000/- nor any part of it was recovered from the  appellants.
 If the prosecution is able to prove its  case  on  motive,  it  will  be  a
corroborative piece of evidence lending assurance to the  prosecution  case.
But even if the prosecution has not been able  to  prove  the  motive,  that
will not be a ground to throw away the prosecution case.  Absence  of  proof
of motive only demands careful scrutiny  and  deeper  analysis  of  evidence
adduced by the prosecution.
13.         Apart from non-recovery  of  the  amount  from  the  appellants,
serious doubts arise as to the motive propounded  by  the  prosecution.   By
perusal of the evidence of Sudama Vithal Darekar (PW-17) it  is  clear  that
driver Raj Kumar came to the police station  complaining  that  by  five  to
seven people of other vehicle have robbed him and the money. However,  after
investigation it was discovered that Raj Kumar gave false information and  a
case under Section 182  IPC  was  registered  against  him.  Raj  Kumar  was
produced before the Court and court  imposed  fine  of  Rs.1,000/-  on  him.
This fact was also verified  from  PW-16-investigating  officer  during  his
cross-examination.
14.         Courts below convicted the appellants on the evidence of  PWs  1
and 2 that deceased was last seen alive with the appellants  on  23.01.2001.
Undoubtedly, “last seen theory”  is  an  important  link  in  the  chain  of
circumstances that would point towards the guilt of the  accused  with  some
certainty.  The “last seen theory” holds the courts to shift the  burden  of
proof to the accused and the accused to offer a  reasonable  explanation  as
to the cause of death of the deceased.  It is  well-settled  by  this  Court
that it is not prudent to base the conviction solely on “last seen  theory”.
“Last seen theory” should be applied taking into consideration the  case  of
the prosecution in its entirety and keeping in mind the  circumstances  that
precede and follow the point of being so last seen.
15.         Elaborating the principle of  “last  seen  alive”  in  State  of
Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, this Court held as under:-
“23. It is not necessary to multiply  with  authorities.  The  principle  is
well settled. The provisions of Section 106 of the Evidence Act  itself  are
unambiguous and categoric in laying down that when any  fact  is  especially
within the knowledge of a person, the burden of proving that  fact  is  upon
him. Thus, if a person is last seen with the  deceased,  he  must  offer  an
explanation as to how and  when  he  parted  company.  He  must  furnish  an
explanation which appears to the court to be probable and  satisfactory.  If
he does so he must be held to have discharged his burden.  If  he  fails  to
offer an explanation on the basis of facts within his special knowledge,  he
fails to discharge the burden cast upon him by Section 106 of  the  Evidence
Act. In a case resting on circumstantial evidence if the  accused  fails  to
offer a reasonable explanation in discharge of the  burden  placed  on  him,
that itself provides an  additional  link  in  the  chain  of  circumstances
proved against him. Section 106 does not shift the  burden  of  proof  in  a
criminal trial, which is always upon the prosecution. It lays down the  rule
that when the accused  does  not  throw  any  light  upon  facts  which  are
specially within his knowledge and which could not  support  any  theory  or
hypothesis compatible  with  his  innocence,  the  court  can  consider  his
failure to adduce any explanation, as an  additional  link  which  completes
the chain. The principle has been succinctly  stated  in  Naina  Mohd.,  Re.
(AIR 1960 Mad 218)”

The above judgment was relied upon and reiterated in Kiriti  Pal  vs.  State
of West Bengal, (2015) 5 Scale 319.
16.         In the light of the above, it is  to  be  seen  whether  in  the
facts and circumstances of this case, whether the courts  below  were  right
in invoking the “last seen theory.”   From  the  evidence  discussed  above,
deceased-Manoj allegedly left in the truck DL-1GA-5943 on  23.01.2001.   The
body of deceased-Manoj was recovered  on  26.01.2001.  The  prosecution  has
contended the accused persons were last  seen  with  the  deceased  but  the
accused have not offered any plausible, cogent explanation as  to  what  has
happened to Manoj. Be it noted, that only if the prosecution  has  succeeded
in proving the facts by definite evidence that the deceased  was  last  seen
alive in the company of the accused, a reasonable inference could  be  drawn
against the accused and then only onus can be shifted on the  accused  under
Section 106 of the Evidence Act.
17.         During their questioning under Section 313 Cr.P.C., the accused-
appellants denied Manoj having travelled in their truck No.DL-1GA-5943.   As
noticed earlier, body of Manoj was recovered only on 26.01.2001 after  three
days.  The gap between the time when Manoj is alleged to have  left  in  the
truck     No.DL-1GA-5943 and the recovery of the body is not  so  small,  to
draw an inference against the appellants.  At  this  juncture,  yet  another
aspect emerging from the evidence needs to be  noted.   From  the  statement
made by Shahzad Khan (PW-4) the internal organ (penis) of the  deceased  was
tied with rope and blood was oozing out from his nostrils.  Maniya  village,
the place where the body of Manoj was recovered is alleged to be  a  notable
place  for  prostitution  where  people  from  different  areas   come   for
enjoyment.
18.         In view of the time gap between Manoj left in the truck and  the
recovery of the body and also the place and circumstances in which the  body
was recovered, possibility of others intervening cannot  be  ruled  out.  In
the absence of definite evidence that  appellants  and  deceased  were  last
seen together and when the time gap is long, it would be dangerous  to  come
to the conclusion that the appellants are  responsible  for  the  murder  of
Manoj and are guilty of committing murder of  Manoj.    Where  time  gap  is
long it would be unsafe to base the conviction on the  “last  seen  theory”;
it is safer to look for corroboration from other circumstances and  evidence
adduced by the prosecution. From the facts and evidence, we  find  no  other
corroborative piece of evidence corroborating the last seen theory.
19.         In case of circumstantial evidence, court  has  to  examine  the
entire evidence in its entirety and ensure that the only inference that  can
be drawn from the evidence is the guilt of the  accused.   In  the  case  at
hand, neither the weapon of murder nor the money  allegedly  looted  by  the
appellants or any other material was recovered from the  possession  of  the
appellants.  There  are  many  apparent  lapses  in  the  investigation  and
missing links:–(i) Non-recovery of stolen money; (ii) The weapon from  which
abrasions were caused; (iii) False case lodged by PW-2 alleging that he  was
being robbed by some other  miscreants;    (iv)  Non-identification  of  the
dead body and (v) Non-explanation as to  how  the  deceased  reached  Maniya
village and injuries on his internal  organ  (penis).   Thus  we  find  many
loopholes in the case of the prosecution.  For  establishing  the  guilt  on
the basis of the circumstantial evidence, the circumstances must  be  firmly
established and the chain  of  circumstances  must  be  completed  from  the
facts.  The chain of circumstantial evidence cannot be said to be  concluded
in any manner sought to be urged by the prosecution.
20.         Normally, this Court will  not  interfere  in  exercise  of  its
powers under Article 136 of the Constitution of India  with  the  concurrent
findings recorded by the courts below.  But where material aspects have  not
been taken into consideration and  where  the  findings  of  the  Court  are
unsupportable from the  evidence  on  record  resulting  in  miscarriage  of
justice, this Court will certainly interfere.  The “last seen theory”  seems
to have substantially weighed with the  courts  below  and  the  High  Court
brushed  aside  many  loopholes  in  the  prosecution  case.   None  of  the
circumstances relied upon by the prosecution  and  accepted  by  the  courts
below can be said to be pointing only to the guilt of the appellants and  no
other inference. If more than one inferences can be drawn, then the  accused
must have the benefit of doubt.  In  the  facts  and  circumstances  of  the
case, we are satisfied the conviction of the appellants cannot be  sustained
and the appeal ought to be allowed.
21.         The conviction of the appellants under Sections 302 and 201  IPC
is set aside and the appeal is allowed. The appellants are in jail and  they
are ordered to be set at liberty forthwith if  not  required  in  any  other
case.


                                                                 ………………………J.
                                                (DIPAK MISRA)


                                                                 ………………………J.
                                                (R. BANUMATHI)
New Delhi;
September 4, 2015







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