IMPORTANT POINT
Last seen theory cannot be of any help if it fails the proximity test.
Suspicion however strong cannot take place of evidence.

JUDGMENT

RANJAN GOGOI, J.

1. The accused appellant had been convicted by the learned trial Court for the offence punishable under Section 302 read with Section 34 IPC and has been sentenced to undergo rigorous imprisonment for life and a fine of Rs.2,000/-, in default, to suffer rigorous imprisonment for a period of two months more. He has also been convicted under Section 411 IPC and sentenced to undergo rigorous imprisonment for one year. Both the sentences were directed to run concurrently. In appeal, while the conviction under Section 302 IPC has been maintained along with sentence imposed, the conviction under Section 411 IPC has been set aside. Instead, the accused appellant has been convicted for commission of offence punishable under Section 392 IPC and sentenced to undergo rigorous imprisonment for one year for commission of the said offence. Aggrieved, this appeal has been filed.

2. We have heard the learned counsels for the parties.

3. The entire case of the prosecution is based on circumstantial evidence. P.W.5 – Ombir Singh, the husband of the deceased in his deposition has stated that he resides with his wife, three children, his sister Raj Bala (P.W.9) and niece Sarvesh (P.W.21). Accused Raj Nirmal Gautam @ Raju (since deceased) was a tenant in one of the two rooms in their house. On 11th September, 1991 at around 9.00 p.m. accused Raj Nirmal Gautam along with the present appellant Raj Kumar and one more person named Dharmender alias Babloo came to his house and together they played a game of cards. After some time he went to his room and slept. Raj Nirmal, Raj Kumar (appellant herein) and Dharmender stayed in the room for the night and left early next morning at about 6.30 a.m. While leaving, accused Raj Nirmal told P.W. 5 that he was going to his village and may not return for the night. At around 7.30 a.m., his sister Raj Bala (P.W.9) who used to reside with him, his niece Sarvesh and the children left for school. He also left for his workplace at around 7.35 a.m. According to P.W. 5, at about 2.30 p.m. he received a telephone call in his office informing him that his wife had met with an accident. He, therefore, reached home by 3.30 p.m. and found the dead body of his wife. The almirah was found unlocked and all the goods therein lying scattered. A number of jewellery items including gold ornaments were found missing.

4. The accused Raj Nirmal Gautam and Raj Kumar (appellant herein) were apprehended on 16th September, 1991 when they were alighting from a bus. On their personal search, various jewellery items were recovered from them which were duly seized by seizure memos Ex.PW-14/C and Ex.PW-14/D. The jewellery items so recovered from the possession of the accused were identified by P.W.5 (Ombir Singh) to be belonging to his wife. The accused had no reasonable explanation to offer for their possession of the jewellery items. They however claimed that they were not guilty.

5. P.W. 21 – Sarvesh deposed that at around 10.15 a.m. she had come back to the house for lunch and at that time she found the accused persons present in the house and were playing cards. Her aunt gave her lunch and after that she again left for school. When she returned at 1.00 p.m. she saw her aunt Suman lying in the kitchen. P.W. 21 was, however, disbelieved by the learned trial Court as she was found to have falsely implicated accused Jagpal who has been acquitted by the learned trial court.

6. P.W.9 – Raj Bala, sister of P.W.5, in her evidence had deposed that in the night of 11.09.1991 the accused persons were in the room and they had left early in the morning of the next day. She has further deposed that she is a teacher in the school and had accompanied P.W.21 and the two children of P.W.5 to school in the morning at about 7.30 a.m. She has also deposed that at about 12.00–12.30 p.m. she had sent the two children of P.W.5 back home with an Aaya and on being informed by the Aaya that her sister-in-law (deceased) was not available in the ho