IMPORTANT POINT
In case of considerable gap of time between ‘last seen together’ and death of deceased accused would be entitled to benefit of doubt.

ORDER

1. The challenge in this appeal by the two appellants is to a judgment and order of the High Court of Karnataka dated 19th June, 2013 by which the appellants’ conviction under Section 302 of the Indian Penal Code, 1860 (“IPC” for short) has been maintained and the sentence of life imprisonment along with fine of Rs.10,000/- each, etc. has also been upheld.

2. The prosecution case rests entirely on three circumstances which have been set out by the High Court as follows:

“(i) The deceased borrowed loan and he did not return and decamped from Ramanagaram.

(ii) The deceased is in the company of A1 and A2 as spoken to by PW1 and PW2; and

(iii) The report of the Doctor suggests that the death is homicidal.”

3. The accused appellants and the deceased along with Suma (PW1) and Rama Nayak (PW2) were together on 26th December, 2004, the precise time being around 1.30 p.m.. The dead body was recovered after a gap of four (04) days i.e. on 30th December, 2004. The post-mortem report indicated that the death had occurred 30 hours prior to the time of post-mortem examination. The medical evidence, therefore, would be suggestive of the fact that the dead-body was recovered after about two (02) days from 1.30 p.m. of 26th December, 2004. The question that confronts the Court is whether on the basis of the aforesaid evidence the conviction of the accused appellants is sustainable in law.

4. “Last seen together” is certainly a strong piece of circumstantial evidence against an accused. However, as it has been held in numerous pronouncements of this Court, the time-lag between the occurrence of the death and when the accused was last seen in the company of the deceased has to be reasonably close to permit an inference of guilt to be drawn. When the time-lag is considerably large, as in the present case, it would be safer for the Court to look for corroboration. In the present case, no corroboration is forthcoming. In the absence of any other circumstances which could connect the accused appellants with the crime alleged except as indicated above and in the absence of any corroboration of the circumstance of ‘last seen together’ we are of the view that a reasonable doubt can be entertained with regard to the involvement of the accused appellants in the crime alleged against them. The burden under Section 106 of the Indian Evidence Act, 1872 would not shift in the aforesaid fact situation, a position which has been dealt with by this Court in Malleshappa vs. State of Karnataka, (2007) 13 SCC 399 wherein the earlier view of this Court Mohibur Rahman vs. State of Assam, (2002) 6 SCC 715 has been extracted. The said view in Mohibur Rahman (supra) may be profitably extracted below:

“10. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity of time and place. As already noted the dead body has been recovered about 14 days after the date on which the deceased was last seen in the company of the accused. The distance between the two places is about 30-40 km. The event of the two accused persons having departed with the deceased and thus last seen together (by Lilima Rajbongshi, PW 6) does not bear such close proximity with the death of the victim by reference to time or place. According to Dr. Ratan Ch. Das the death occurred 5 to 10 days before 9-2-1991. The medical evidence does not establish, and there is no other evidence available to hold, that t