IMPORTANT POINT
Proximity of time between the deceased last seen with the accused and his death and recovery of dead body is crucial for invoking the ‘last seen theory’.

JUDGMENT

Pinaki Chandra Ghose, J.

1. This appeal, by special leave, has been directed against the judgment and order dated 1st March, 2007 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No. 1047/2003, whereby the High Court allowed the criminal appeal filed by the respondent herein and acquitted him.

2. The brief facts necessary to dispose of this appeal are that one Ganesh, a daily-wage mason, went missing on 16.01.2001. On 20.01.2001, PW1 D. Ramu, Dhobi by profession, saw a dead body floating in a well near the Dhobi Ghat with hands tied at the back and the ankles were also tied. The police recovered the dead body, shifted it to Bowring Hospital Mortuary and thereafter published the photograph of the dead body in the newspaper. From this photograph, PW3 father of the deceased, reached the Bowring Hospital and identified the body as that of his son Ganesh. PW1 lodged a complaint with K.G. Halli Police Station and investigation started, and from the apprehension of PW3, accused Chand Basha was arrested on 23.01.2001. The investigation revealed that on 17.01.2001, PW12 (Appu) told PW3 that his son had gone to a wet party with the accused on 16.01.2001. The said wet party took place at Sindhur Bar at Lingarajapuram. PW5 (the bar-boy) and PW6 (owner of the bar) testified that on 16.01.2001, the accused along with one other person visited their bar. Building further, the investigation came across with PW8 (shopkeeper) who testified that the accused along with one other person bought 2 cigarettes from his shop on 16.01.2001 at 10 p.m., and the accused thereafter was arrested on 23.01.2001, but the deceased was never seen alive again.

3. Police filed the charge sheet against accused Chand Basha, after which charges for offence punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) were framed by the Trial Court and the charges were read over and explained to the accused but he pleaded not guilty and claimed trial.

4. The Trial Court by its judgment and order dated 14.02.2003, convicted the respondent Chand Basha for the offence punishable under Section 302 IPC and sentenced him to rigorous imprisonment for life and a fine of Rs.15,000/-, and in default of payment of fine, further rigorous imprisonment for six months was awarded. Being aggrieved by the aforesaid judgment and order of the Trial Court, the respondent-accused filed an appeal before the High Court of Karnataka at Bangalore, being Criminal Appeal No.1047 of 2003. The High Court by the impugned judgment and order allowed the criminal appeal on the ground that the prosecution might have proved the motive but had miserably failed to prove the incriminating last seen circumstance and had also failed to successfully prove the discovery evidence. The High Court held that the death may be a homicidal, but there is no evidence to connect the accused with the crime. In view of the aforesaid discrepancies, the High Court set aside the order of conviction passed by the Trial Court and acquitted the respondent.

5. The Appellant -State has challenged before us the judgment of acquittal passed by the High Court. Learned counsel for the appellant has inter alia raised the following grounds as incriminating circumstances in this appeal. Firstly, the motive behind the murder of the deceased was consistently and cogently proved by the testimony of PW3 father of the deceased, and PW4 sister of the deceased. Agreeing to this submission, the High Court also held that motive can be successfully attributed upon the accused that he wanted to marry PW4 (sister of the deceased) which was vehemently disapproved by the deceased and PW3 (father). Secondly, the death was argued to be homicidal and there is already a concurrent finding of the courts below that the death was homicidal. Thirdly, the present case rests on the last seen theory, and by the consistent testimonies of PW5 (bar-boy), PW6 (owner of the bar), PW8 (shopkeeper)