Important Points1. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration.2. It is well settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence.

Headnote:(i) Indian Penal Code, 1860—Section 302/34—Acquittals—Circumstantial evidence—Last seen theory comes into play where the time gap between the point of time when accused and deceased were last seen alive and deceased found dead is small—According to the prosecution, at about 10.30 p.m., appellant 1 went to the house of deceased and called him on ground that his jeep required some repairs—PW1, elder brother of deceased came out with deceased from the residence and saw appellants 1, 2 and 3 standing—Deceased and appellants were said to have walked away—At about 5.00 a.m. in the next morning, PW2, another brother of the deceased returned home from his workshop—Dead body of deceased was noticed by PW4 in the morning in front of his house—FIR filed by PW5 on request made by PW1—PW9 was said to be an eye witness—His statement before the police was recorded three days after the incident—Trial Court held him to be a reliable witness for convicting appellants—High Court found PW9 not reliable—High Court upheld judgment of conviction holding that motive was proved—Whether motive by itself is sufficient to prove the guilt—(No)—Whether appellants were liable to be convicted on basis of the last seen theory—(No).
       Held : It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. (Para 26)
       The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration. (Para 27)
       It is, furthermore, well-known that motive by itself is not sufficient to prove the guilt. [See State of M.P. through CBI & Ors. v. Paltan Mallah & Ors. (2005) 3 SCC 169, para 9. ] Furthermore, the solitary witness, to prove the alleged motive, namely, P.W.8 was examined by the police after two days. No reliance, thus, can be placed on his evidence. It may be true that the Appellant No.2 was a history-sheeter. It may further be true that P.W.1 instituted a case against the Appellant No.1 for threatening him when he was on bail. It may also be, that P.W.7 did not identify the Appellants as he was found shaking. If the Appellants are guilty of other offences, they can be proceeded against appropriately and in accordance with law. We hope the authorities would do so. (Paras 29 to 31)
       But, keeping in view of the peculiar facts and circumstances of this case, we are of the opinion that the prosecution cannot be said to have established the guilt of the Appellants herein beyond all shadow of doubt. The prosecution story has a large number of loopholes and, thus, we have no other option but to hold that the Appellants are entitled to the benefit of doubt. The impugned judgment is, therefore, set aside and the appeals are allowed. (Para 32)
       (ii) Indian Penal Code, 1860—Section 302/34—Homicidal death—Time of death—In Post-Mortem Report, apart from stating that rigor mortis was confined to both upper and lower limbs, no other reason has been disclosed—Post-mortem examination on dead body of deceased started from 11.00 a.m. and was completed at about 1.30 p.m.—Medical opinion that death was found to have taken place between 1200 to 1500 hours. (Paras 2, 21 and 24)

Judgment

S.B. Sinha, J.—The Appellant No.1 herein along with one Shaik Abdul Rahman, accused No.3 were convicted for commission of an offence under Section 302 read with Section 34 of the Indian Penal Code (IPC) and Appellant No.2 herein was convicted under Section 302 IPC. They were prosecuted for committing murder of one Mohammad Rafiq Khan on 14.6.1998. The said offence was said to have been committed during the period between 10.30 p.m. of 14.6.1998 to 5.00 a.m. on 15.6.1998. The deceased was a motor mechanic. He and the Appellant No.1 herein were friends. The Appellant No.2 and two other accused were said to be his followers. A quarrel allegedly took place between the deceased on the one side and the Appellants on the other at about 9 p.m. on the said date near a theatre known as Durga Talkies in the town of Kothagudem. The quarrel, according to P.W.8-Routu Narender, who was himself a jeep driver and parked his vehicle near the afore-mentioned theatre, was on two counts: (1) the jeep of the Appellant No.1 had not been satisfactorily repaired by the deceased, although he had taken repair charges in respect thereof; and (2) the deceased was visiting a woman called Gugloth Dasli, who was said to be his concubine, upon being questioned in that behalf by the first appellant, the deceased, allegedly, retorted that he had been paying money to the said Dasli and, therefore, no one could stop him from visiting her, whereupon he was allegedly threatened. The parties exchanged hot words but P.W.8-Routu Narender and others are said to have intervened. The deceased thereafter left for his residence in an auto. According to the prosecution, at about 10.30 p.m. on the same night, the Appellant No.1 went to the house of the deceased and called him on the ground that his jeep required some repairs. P.W.1-Md. Anwar Khan, the elder brother of the deceased was said to be present. He came out with him from the residence and allegedly saw the Appellant No.1 on the road. He stated that on the body of auto the word ‘Swathi’ was inscribed. He furthermore, is said to have noticed the other two Appellants, i.e., Appellant Nos. 2 and 3 standing by its side. The deceased and the Appellants herein are said to have walked away. At about 5.00 a.m. in the next morning, P.W.2-Mohd. Mohamood Khan, another brother of the deceased returned home from his workshop. Upon an inquiry having been made as to whether the deceased had visited the workshop on the previous night along with the Appellant, he answered in the negative. The dead body was noticed by P.W.4-A. Venkateswarlu in the morning in front of his house. As the deceased was known to P.W.4, he went to P.W.1 and informed thereabout. They came to the spot whereafter P.W.1 rushed to the town police station of Kothagudem Town. He, however, did not enter the police station. He was standing on the road before the police station. P.W.5-J. Srinivas, at about 6.00 a.m., was passing by the said police station for shopping, P.W.1 requested him to scribe a report on his behalf describing the incident. P.W.5 accordingly scribed a report, which reads as under :

"Yesterday i.e. on 14.6.1998 at about 10.30 Night time while I was at my residence along with my brother by name Rafeek Khan. On Ramreddi Rajesh Khanna came to my residence and called my brother then my brother came outside I had also followed him and questioned my brother as to where you are going for which my brother told me that Rajesh Khanna wanted to get his Jeep urgently repair by that time one Auto was standing at a distance to my house. On the top of the auto there was a name "Swathi" written in Telugu, by the side of auto one Bankur Ravi, Machaboina Ramesh, S.K. Abdul Rahman @ Nathi Babu were standing; after some time the above said four persons and my brother left the place in auto towards coolie line main road. My bother did’nt return back on that night. Today i.e. on 15.06.1998 early in the morning at about 5.00 a.m. I asked my third brother by name

Click Here to Read the rest of this document

2006 Supreme(SC) 268

Cases Referred (7)