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
-----------------------
12
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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