IMPORTANT POINT
Absence of a motive, irrespective of other available material, will not be fatal to the prosecution.

JUDGMENT :

K.M. JOSEPH, J.

1. This appeal by special leave is directed against the judgment of the High Court dismissing the appeal filed by the appellant against his conviction under Section 302 of the Indian Penal code (hereinafter referred to as the “IPC”) and sentencing to rigorous imprisonment for life.

2. On 27/06/1993 upon discovery of an unidentified body near a canal and the case being registered and upon investigation being conducted the appellant along with another came to be charge sheeted and charged with the commission of offences under Section 302 read with Section 34 of the IPC. They were also charged with the offence under Section 201 of the IPC. Before the trial Court the prosecution examined PW1 to PW17. The appellant examined DW1 and DW2. The trial Court convicted the appellant while it acquitted the co-accused. As already noticed the High Court has affirmed the conviction and sentence of the accused- appellant.

3. We heard Ms. Aishwarya Bhati, learned Amicus Curiae and also learned counsel for the respondent-State.

4. Learned Amicus Curiae contended before us that the case is based only on circumstantial evidence. She pointed out that there are three circumstances which were alleged against the appellant. Firstly, it is contended that the prosecution laid store by an alleged extra judicial confession made by the appellant to PW 4 but she immediately pointed out that the said extra judicial confession has not been accepted either by the trial court or by the High Court. Secondly, it is pointed out that the courts have relied upon the theory of last seen. The theory of last seen is sought to be proved through the evidence of PW7, PW8 and PW9. Thirdly, it is pointed out that the prosecution has sought to draw support from recovery of .38 caliber gun apart from cartridges. She would submit that no reliance can be placed upon the same. Lastly, she also contended that there is absolutely no motive for the appellant to commit the murder of the deceased. In a case of circumstantial evidence, motive assumes great significance. Absence of evidence of any motive with the appellant to do away with the deceased, is fatal to the prosecution case, runs the argument.

5. Per contra, learned counsel for the State would submit that the circumstances formed a complete chain and unerringly point to the guilt of the appellant. It is further pointed out that the van belonging to the deceased in which the accused were also seen last by the witnesses for the prosecution was recovered at the instance of the appellant. This is besides the forensic evidence available which would also establish that this is a case of the murder committed by none other than the appellant as the forensic report would show that the bullet which was recovered from the body of the deceased was fired from the gun recovered from the appellant. Recovery was of the gun and also empty cartridges besides live cartridges. An attempt is made also to establish that there was a fight between the deceased and the appellant going by the injuries noted in the post-mortem and this pointed to motive.

6. We would exclude the circumstance namely, the extra judicial confession which has not been given credence to by the courts below. We will thereafter examine firstly whether the prosecution has been able to establish the last seen theory. The case of last seen theory has been sought to be proved through the testimony of PW7, PW8 and PW9.

7. P.W.7 is the brother in law of the deceased. He has deposed that the deceased was having a taxi and on 26.6.1993 he along with the deceased was present at the taxi stand. Then both the accused came there. They asked the deceased to take them in his taxi and he left with them. No doubt, in cross examination he does say that 4 or 5 taxis in addition to their two taxis were present at the taxi stand. He is not able to give the names of other taxi drivers or the registered numbers of their vehicles. He had a separate taxi. There is nothing vital in