Arvind Kumar Verma. J.
1. This criminal appeal preferred under Section 374(2) of Criminal Procedure Code 1973 is directed against the impugned judgment of conviction and order of sentence dated 11.08.2015, passed by the learned Additional Sessions Judge, Mungeli (C.G.) in Session Trial No. H 34/2014, whereby the appellant has been convicted and sentenced as under:
| Conviction | Sentence |
| Section 302 of Indian Penal Code | Life imprisonment and fine of Rs.1,000/-, in default of payment of fine, 01 month additional R.I. |
| Section 201 of Indian Penal Code | R.I. for 7 years and fine of Rs. 1,000/-, in default of payment of fine, 01 months additional R.I. |
3. Statements of witnesses were recorded under Section 161 of Cr.P.C. After completion of investigation, the appellant was charge-sheeted be- fore the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.
4. The prosecution in order to bring home the offence, examined as many as 14 witnesses in support of its case and exhibited documents. How- ever, the appellant in support of his defence has not examined any document.
5. The trial Court after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment against which he has preferred the instant appeal under Section 374(2) of the CrPC.
6. Learned counsel for the appellant submits that the learned trial Court is absolutely unjustified in convicting and sentencing the appellant for the aforesaid offences as the prosecution has failed to prove the offences beyond reasonable doubt. He further submits that except the evidence of PW-2 Maniram PW-4 Parmeshwar and Dr. S. Gadhewal (PW-10), there is no other evidence available on record to connect the appellant with the crime in question.
7. Learned counsel for the appellant submits that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. Learned counsel further submits that the case of the prosecution rests entirely on circumstantial evidence and there is no direct evidence to connect the appellant with the alleged crime. It is also argued that the chain of circumstances relied upon by the prosecution is not complete and does not unerringly point towards the guilt of the appellant.
8. It is further submitted by the learned counsel for appellant that the memorandum statement of the appellant and the seizure allegedly made pursuant thereto have not been proved in accordance with law and the same cannot be safely relied upon. Learned counsel also submits that the alleged motive attributed to the appellant has not been satisfactorily established by the prosecution. It is argued that there are material contradictions and omissions in the statements of the prosecution witnesses, which create serious doubt about the prosecution story. Learned counsel for the appellant further submits that the trial Court has failed to properly appreciate the evidence available on record and has convicted the appellant on the basis of conjectures and surmises. It is therefore prayed that the impugned judgment of conviction and order of sentence passed by the learned trial Court be set aside and the appellant be acquitted of the charges levelled against him.
9. Learned counsel for the State supports the impugned judgment and submits that the prosecution has brought home the offence against the appellant and has proved the case beyond reasonable doubt and thus, the appellant has rightly been convicted and sentenced for the afore- said offences.
10. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.
11. The prosecution has alleged that the accused/appellant committed the murder of Sanjay Jaiswal. Therefore, the first and foremost question that arises for consideration is whether the death of the deceased was homicidal in nature.
12. In order to establish the same, the prosecution has relied primarily upon the medical evidence of PW-11 Dr. S. Gadewal and the post- mortem report (Ex.P-14). From the perusal of the post-mortem report as well as the testimony of the doctor, it emerges that the body brought for examination on 27.05.2014 was in a highly decomposed condition. The doctor has noted that the body was putrefied, foul smelling and maggots were present. The skin had peeled off from several parts of the body and the eyes had liquefied. The organs inside the body had also undergone decomposition. Significantly, the doctor has categorically stated that due to the advanced stage of putrefaction, the cause and mode of death could not be ascertained. Thus, the medical evidence does not establish that the death was homicidal.
13. The condition of the body also raises doubt regarding the identity of the deceased. The prosecution claims that the body was identified by relatives, however the body was in a highly decomposed state. In such circumstances, reliable identification becomes doubtful unless supported by scientific examination. Admittedly, the prosecution did not conduct any DNA test or other scientific examination to conclusively establish that the body recovered was that of Sanjay Jaiswal.
14. When the cause of death itself could not be determined and the identity of the body is not established with certainty, it becomes difficult to conclusively hold that the death in question was homicidal. Accordingly, this Court is of the considered opinion that the prosecution has failed to establish beyond reasonable doubt that the death of the deceased was homicidal in nature.
15. The trial Court in paragraph21 of its judgment recorded following findings:-
"The incident is stated to have taken place on 21.05.2014, when the deceased Sanjay Jaiswal left his house and did not return thereafter. A report regarding his disappearance was subsequently lodged as a missing person report on 25.05.2014 by Sanju Jaiswal at Police Station Hirri, which has been exhibited as Exhibit P-15. Thus, the report was lodged about five days after the deceased had left the house. It is quite natural that during this period the family members of the deceased were searching for him at the places of their relatives and acquaintances. Therefore, the report came to be lodged after some delay. Such delay does not adversely affect the prosecution story, as in such circumstances it is natural that family members would first make efforts to trace the missing person before approaching the police station. Hence, no undue advantage can be extended to the accused on the ground of delay in lodging the report. Witness Ramphool Kori (PW-9), the Patwari, prepared the spot map of the place of occurrence. Further, R.L. Bagh (PW-13) and Dinesh Tomar (PW-14) have proved the investigation proceedings through their respective testimonies before the Court. Although certain contradictions and omissions have been brought on record during their cross-examination, the same are minor in nature and do not affect the core of the prosecution case, nor do they confer any benefit upon the accused. From the evidence adduced by the prosecution, it is established that prior to the incident dated 21.05.2014, the deceased Sanjay Jaiswal and the accused Pappu Sahu were acquainted with each other and had close relations, and it has also come on record that they had physical relations prior to the marriage of the de- ceased. About one month prior to the incident, the deceased had got married, after which disputes arose between the deceased and the accused regarding money. Thereafter, on 21.05.2014, the deceased Sanjay Jaiswal went towards Lukukapa on the motorcycle of the accused and did not return thereafter. Subsequently, on 27.05.2014, the dead body of the deceased Sanjay Jaiswal was found in a vacant house of Indira Awas situated in village Daruwankapa. During the cross-examination of the prosecution witnesses, the defence has not brought on record any material evidence which could create doubt about the prosecution story. In the present case, the circumstances established by the prosecution form a chain of circumstantial evidence which links the accused with the death of the deceased Sanjay Jaiswal. The circumstances established on record, when taken together, point towards the involvement of the accused in the incident. It has also been established that after the death of the deceased, the accused left the body in the vacant house of Indira Awas situated in village Daruwankapa, with the intention of causing disappearance of evidence. Thus, from the evidence of the prosecution witnesses as well as the circumstantial evidence available on record, it is established that on 21.05.2014 the accused caused the death of Sanjay Jaiswal and thereafter attempted to cause disappearance of the evidence by leaving the dead body at the said place. Accordingly, the accused is held guilty for the offences punishable under Sections 302 and 201 of the Indian Penal Code."
16. A careful perusal of the aforesaid findings recorded by the trial Court would show that the trial Court has proceeded to convict the appellant on the basis that the appellant and the deceased Sanjay Jaiswal were last seen together on 21.05.2014, when the deceased was seen going on the motorcycle of the appellant towards Lukukapa. Thereafter, the deceased did not return, and subsequently on 27.05.2014, the dead body of the deceased was found in a vacant house of Indira Awas situated in village Daruwankapa. On the basis of this circumstance, the trial Court has drawn an inference against the appellant and recorded the conviction.
17. It has been found established by the trial Court and it has not been disputed by the learned counsel for the appellant that on 21.05.2014, the deceased Sanjay Jaiswal was seen going on the motorcycle of the appellant Pappu Sahu towards Lukukapa, and thereafter the deceased did not return to his house. Subsequently, when the deceased was not seen and his whereabouts could not be traced, a missing person report was lodged by Sanju Jaiswal, brother of the deceased, at Police Station Hirri on 25.05.2014, which was registered as Ex.P-15. Thereafter, on 27.05.2014, a marg intimation was registered at the instance of Janikdas, Kotwar of village Daruwankapa, at Police Station Hirri to the effect that the dead body of an unknown person was found lying in a vacant house of Indira Awas situated in village Daruwankapa, which was registered as Marg No. 31/14 (Ex.P-8). During the course of marg inquiry, the dead body was identified by Sanju Jaiswal and Krishna Kumar Jaiswal as that of Sanjay Jaiswal on the basis of the clothes and slippers worn by him. Thereafter, on the basis of suspicion against the appellant, his memorandum statement (Ex.P-5) was recorded and certain articles including a motorcycle, handkerchief and clothes were seized pursuant thereto vide Ex.P-6. Subsequently, FIR (Ex.P-20) came to be registered at Police Station Hirri under Section 302 of the IPC vide Crime No.108/14, and thereafter the investigation commenced. Statements of witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge-sheet was filed against the appellant. Relying upon the said circumstances, particularly the circumstance of the deceased having been last seen in the company of the appellant, the trial Court has recorded the incriminating circumstances and ultimately convicted the appellant for the offences under Sections 302 and 201 of the IPC, which conviction has been challenged by the appellant in the present criminal appeal.
18. PW-4 Parmeshwar has stated that on 21.05.2014 he had seen Sanjay Jaiswal sitting on the motorcycle of the accused Pappu Sahu and going towards Lukukapa.
19. The next question for consideration would be, whether the prosecution has proved that the appellant was last seen with the deceased or that the offence was committed by the appellant?
20. In the matter of Jaharlal Das v. State of Orissa (1991) 3 SCC 27, the Supreme Court has noted the fact that at the stage of inquest, the important incriminating circumstance namely, the deceased was last seen in the company of the accused, was not noted and that is not there in the inquest report. Thereafter, in that view of the above fact and other evidence on record, their Lordships have held that the deceased was last seen in the company of the accused is not established beyond reasonable doubt.
21. In the matter of Arjun Marik v. State of Bihar 1994 Supp (2) SCC 372, it has been held by their Lordships of the Supreme Court that conviction cannot be made solely on the basis of theory of 'last seen together' and observed in paragraph 31 as under :-
"31. 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 would at best amount to though a number of witnesses have been examined be the evidence of the appellants having been seen last together with the de- ceased. 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. Likewise, in the matter of State of Goa v. Sanjay Thakran 2007 3 SCC 755, the Supreme Court has held that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was observed in paragraph 34 as under :-
"34. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, be- comes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. "
23. Similarly, in the matter of Kanhaiya Lal v. State of Rajasthan4, their Lordships of the Supreme Court have clearly held that the circumstance of last seen together does not by itself and necessarily lead to the infer- ence that it was the accused who committed the crime and there must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant in our considered opinion, by itself cannot lead to proof of guilt against the ap- pellant. It has been held in paragraphs 15 and 16 as under :-
"15. The theory of last seen - the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan 2014 4 SCC 715.
16. In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment and sentence. This appeal is allowed and the conviction and sentence imposed on the appellant-accused Kanhaiya Lal are set aside and he is acquitted of the charge by giving benefit of doubt. He is directed to be released from the custody forthwith unless required otherwise."
24. In the matter of Anjan Kumar Sarma v. State of Assam 2017 14 SCC 359, their Lord- ships of the Supreme Court have clearly held that in a case where other links have been satisfactorily made out and circumstances point to guilt of accused, circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In absence of proof of other circumstances the only circumstance of last seen together and absence of satisfactory explanation, cannot be made basis of conviction.
25. In the matter of Navaneethakrishnan v. State by Inspector of Police 2018 16 SCC 161, the Supreme Court has held that though the evidence of last seen together could point to the guilt of the accused, but this evidence alone cannot discharge the burden of establishing the guilt of the accused beyond reasonable doubt and requires corroboration, and ob- served in paragraph 22 as under: -
"22. PW 11 was able to identify all the three accused in the court itself by recapitulating his memory as those persons who came at the time when he was washing his car along with John Bosco and further that he had last seen all of them sitting in the Omni van on that day and his testimony to that effect remains intact even during the cross-examination in the light of the fact that the said witness has no enmity whatsoever against the appellants herein and he is an independent witness. Once the testimony of PW 11 is established and inspires full confidence, it is well established that it is the accused who were last seen with the deceased specially in the circumstances when there is nothing on record to show that they parted from the accused and since then no activity of the deceased can be traced and their dead bodies were recovered later on. It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone cannot discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration."
26. In the matter of State of Goa v. Sanjay Thakran and another (2007) 3 SCC 755, their Lordships of the Supreme Court found that there was considerable time gap of approximately 8½ hours when the deceased was last seen alive with the accused persons and their Lordships held that there being a considerable time gap between the persons seen together and the proximate time of crime, the circumstance of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused.
27. In the instant case also, the deceased Sanjay Jaiswal is alleged to have been last seen with the appellant on 21.05.2014, when he was seen going on the motorcycle of the appellant towards Lukukapa, whereas the dead body of the deceased was recovered on 27.05.2014 from a vacant house of Indira Awas situated in village Daruwankapa. As such, there is a considerable time gap between the alleged last seen circumstance and the time when the dead body of the deceased was recovered. Therefore, it cannot be held that only the appellant is the perpetrator of the offence and, in the absence of any reliable corroborative evidence, it cannot be concluded that the appellant is the author of the crime.
28. In the present case, the prosecution has attempted to rely upon the circumstance that the deceased was last seen in the company of the appellant. However, the evidence brought on record does not conclusively establish the proximity of time between the alleged last seen circumstance and the death of the deceased.
29. The alleged incident is stated to have occurred on 21.05.2014, whereas the dead body was recovered on 27.05.2014. Thus, there exists a considerable gap between the alleged last seen circumstance and the recovery of the body. It is settled law that the last seen theory can be safely applied only when the time gap between the accused and the deceased being last seen together and the death is so small that the possibility of intervention by any other person is completely ruled out. In the present case, such proximity is not established.
30. The prosecution has also relied upon the memorandum statement of the appellant made before the police, pursuant to which a motorcycle, a T-shirt and a handkerchief are stated to have been recovered. However, these articles are ordinary articles of common use and the prosecution has failed to establish any definite nexus between these articles and the alleged crime. No forensic examination has been brought on record linking these articles with the deceased or with the commission of the offence.
31. Further, there is no eyewitness account to the alleged occurrence and the prosecution has not produced any other reliable circumstance which could form a complete chain pointing towards the guilt of the appellant.
32. When the evidence on record is considered as a whole, it becomes clear that the prosecution has failed to establish a complete chain of circumstances. The circumstances relied upon by the prosecution do not lead to the only conclusion that the appellant is guilty of the alleged offence. In a criminal trial the burden always lies upon the prosecution to prove the guilt of the accused beyond reasonable doubt. Suspicion, however strong, cannot take the place of proof.
33. It is respectfully submitted that the identification of the deceased in the present case is highly doubtful and unreliable. As per the medical evidence and the postmortem report (Ex.P-14), the body recovered on 27.05.2014 was in a highly decomposed and putrefied condition, with skin peeled off from several parts of the body, foul smell emanating therefrom and maggots present, making facial recognition impossible. In such circumstances, the alleged identification of the deceased by the relatives merely on the basis of clothes and slippers cannot be treated as conclusive or reliable. The prosecution has not conducted any scientific examination such as DNA profiling or any other forensic test to establish beyond doubt that the body recovered was that of Sanjay Jaiswal. In the absence of such reliable scientific evidence, the identification of the deceased remains doubtful, which creates a serious dent in the prosecution case.
34. In light of the aforesaid decisions rendered by the Supreme Court particularly, in Anjan Kumar Sarma (supra), it is quite vivid that the prosecution has only established that the appellant was last seen with the deceased and no other connecting links have been satisfactorily made out and no other incriminating circumstance which leads to the hypothesis of guilt against the appellant has been proved. Even the prosecution in the present case has failed to prove the death of the deceased to be homicidal in nature. As such, in absence of poof of other circumstances or chain of circumstances, only the theory of 'last seen together' cannot be made the sole basis for conviction of the appellant as it would be unsafe to rest conviction only on the theory of 'last seen together'. Therefore, we are of the considered opinion that the learned trial Court is absolutely unjustified in convicting the appellant under Section 302 and 201 of the IPC only on the basis of the theory of 'last seen together' finding it fully established in absence of motive for offence on the part of the appellant and in absence of other incriminating material against the appellant in light of the principles of law laid down by their Lordships of the Supreme Court in Arjun Marik (supra), Sanjay Thakran's case (supra) and Kanhaiya Lal (supra).
35. We hereby set aside the conviction so recorded and the sentences so awarded by the trial Court to the appellant vide the impugned judgment dated 11.08.2015. The appellant is acquitted of the charge under Section 302 and 201 of the IPC. Since the appellant is already on bail, his bail bonds shall continue for a period of six months in terms of Section 481 of BNSS Bhartiya Nagarik Suraksha Sanhita of 2023.
36. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and concerned Jail Superintendent for necessary information and action.