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Wednesday, May 2, 2018

when recovery proved - non examination of other witness is of no consequences =The recovery of the atlas cycle on the confession of the appellant, identified by PW­7 as belonging to him, as also the recovery of the milk can on the same basis with the name of PW­7 inscribed on it with nail polish and the fact that the appellant was absconding after the occurrence till his arrest on 16.09.2007 7 are additional incriminating factors which complete the links in the chain of circumstances. The recovery having been proved by PW­7, the failure to examine the other seizure witness, Kheda, is of no consequence.

NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1892 OF 2017
SATPAL .........APPELLANT(S)
VERSUS
STATE OF HARYANA .....RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The appellant assails his conviction under Section 302 read
with Section 201 I.P.C., by the Additional Sessions Judge, Hissar
in case No.54­SC (RBT) of 2008, affirmed by the High Court,
based on the last seen theory.
2. PW­7, Krishan Kumar lodged an F.I.R. on 11.09.2007 with
regard to his missing nephew, the deceased Kapil Kumar who was
thirteen   years   old.   The   deceased   had   gone   to   the   village   the
previous evening at about 6:00 PM to deliver milk to customers.
The   witness   and   his   relative   PW­9,   Richhpal   had   seen   the
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deceased with the appellant at about 9:00 PM on the Khairpur
Road, Sarangpur, going on a bicycle together. The deceased did
not return home at night. His dead body was found the next
morning lying concealed in a heap of dry fodder in the fields of
Subhash.   The appellant was stated to have had an altercation
with the deceased a few days ago with regard to payment of milk.
The disclosure by the appellant under Section 27 of the Evidence
Act after his arrest, led to recovery of the atlas bicycle belonging
to PW­7, and the milk can with the name of the witness inscribed
on it.
3. Learned Counsel for the appellant assailing the conviction,
submitted   that   the   dead   body   was   found   at   a   considerable
distance from where he was last seen with the deceased and in
the opposite direction.   It is highly unlikely that the appellant
would have carried the dead body for the long distance.   The
recovery is planted, as the second seizure witness Kheda had not
been examined.  The appellant would not have hidden the bicycle
and the milk can near his own house to facilitate his implication.
The story of the milk can and an altercation few days earlier in
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Court, were improvements as no such statement had been made
by PW­7 in the FIR or statement under Section 161 Cr.P.C.
4. There was a contradiction between the evidence of PW­7 and
PW­9 with regard to intimation given to the Sarpanch at night
itself.  There was also a contradiction between the statement of
the two witnesses with regard to time when the dead body was
discovered   and   the   police   reached   the   spot.     There   was   no
evidence with regard to the bicycle as belonging to PW­7.   The
father of the deceased, PW­8, Subhash had come to the village in
the morning itself looking for his son which is suggestive that the
deceased was missing since earlier creating doubts about the last
seen theory.  Alternately, if the deceased was missing since the
previous night, the conduct of PW­7 in not informing PW­8 at
night itself was highly unnatural.  PW­7 and PW­9 were thus not
reliable   witnesses.     To   sustain   a   conviction   on   basis   of
circumstantial evidence, it was necessary that all links in the
chain of circumstances must be complete leading to the only
hypothesis for guilt of the accused.  If there were any missing link
in the chain of circumstances and the possibility of innocence
cannot   be   ruled   out,   the   benefit   of   doubt   must   be   given   by
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acquittal.  Any recovery on basis of confession, under Section 27
of the Evidence Act, cannot form the basis for conviction. 
5. Learned counsel for the State submitted that the deceased
was last seen with the appellant the previous night at about 9.00
PM going on a bicycle and did not return at night.  The dead body
was found next morning in the vicinity of the area they were last
seen together.   The post­mortem conducted on 12.09.2007 at
2:15 PM estimates the time elapsed since death as 24­36 hours
and which coincides with when the deceased was last seen with
the appellant.  Motive for the crime existed.  The conduct of the
appellant   in   absconding   after   the   occurrence   is   also   an
incriminating factor against him.  PW­7 had identified the bicycle
as belonging to him and the milk can had his name inscribed on
it. 
6. We   have   considered   the   respective   submissions   and   the
evidence on record.  There is no eye witness to the occurrence but
only circumstances coupled with the fact of the deceased having
been last seen with the appellant.   Criminal jurisprudence and
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the   plethora   of   judicial   precedents   leave   little   room   for
reconsideration of the basic principles for invocation of the last
seen theory as a facet of circumstantial evidence.   Succinctly
stated, it may be a weak kind of evidence by itself to found
conviction upon the same singularly.  But when it is coupled with
other circumstances such as the time when the deceased was last
seen with the accused, and the recovery of the corpse being in
very close proximity of time, the accused owes an explanation
under   Section   106   of   the   Evidence   Act   with   regard   to   the
circumstances under which death may have taken place. If the
accused offers no explanation, or furnishes a wrong explanation,
absconds,   motive   is   established,   and   there   is   corroborative
evidence available inter alia in the form of recovery or otherwise
forming a chain of circumstances leading to the only inference for
guilt of the accused, incompatible with any possible hypothesis of
innocence, conviction can be based on the same.  If there be any
doubt or break in the link of chain of circumstances, the benefit
of doubt must go to the accused.  Each case will therefore have to
be examined on its own facts for invocation of the doctrine.
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7. Both PW­7 and PW­9 have consistently stated having seen
the deceased going with the appellant on a bicycle at 9.00 PM the
previous evening.   The deceased did not return home at night.
The appellant was also not to be found at home.  The corpse of
the deceased was recovered the next morning hidden in a heap of
fodder in the fields.  The FIR was lodged promptly on 11.09.2007
naming the appellant as a suspect.  An FIR is not to be read as
an encyclopedia requiring every minute detail of the occurrence to
be mentioned therein.   The absence of any mention in it with
regard to the previous altercation, or the presence of the milk
can, cannot affect its veracity so as to doubt the entire case of the
prosecution.   The   altercation   suffices   to   establish   motive.   The
appellant has not led any evidence regarding his not being in the
company of the deceased or that they had subsequently parted
ways.   The   appellant   has   not   led   any   evidence,   despite   his
statement under Section 313 Cr.P.C. that he would do so, why he
did not return home at night or his whereabouts otherwise. PW­8,
father   of   the   deceased,   was   informed   in   the   morning   of
11.09.2007  by   PW­7  after  which   he   came   to  the  village.   The
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deceased was a thirteen year old hardly in a position to resist the
appellant.  We see no reason why the two witnesses being related
to the deceased would depose falsely and shield the real offender,
especially when the appellant has not given any reason or led any
evidence for his false implication. 
8. The post­mortem was done on 12.09.2007 at about 2:15 PM
by PW­12, Dr. Sunil Gambhir opining that death was due to
strangulation by manual throttling.  The time elapsed since death
has been estimated as 24 to 36 hours.  The witness has deposed
that death could be estimated to have occurred at about 10.00
PM on 10.09.2007.  The body has been recovered in the vicinity of
where the deceased was last seen with the appellant.   The fact
that it may be in the opposite direction is hardly relevant.
9.    The recovery of the atlas cycle on the confession of the
appellant, identified by PW­7 as belonging to him, as also the
recovery of the milk can on the same basis with the name of PW­7
inscribed on it with nail polish and the fact that the appellant was
absconding  after  the   occurrence  till   his  arrest   on   16.09.2007
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are additional incriminating factors which complete the links in
the chain of circumstances.  The recovery having been proved by
PW­7, the failure to examine the other seizure witness, Kheda, is
of no consequence. 
10. In the entirety of the facts and circumstances of the case, we
find no reason to interfere with the conviction of the appellant.
11. The appeal is dismissed.
………………………………….J.
 (Kurian Joseph)
………………………………….J.
 (Mohan M. Shantanagoudar)
.……….………………………..J.
   (Navin Sinha)
New Delhi,
May 01, 2018
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