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SUPREME COURT OF INDIA
S. RAVINDRA BHAT, PAMIDIGHANTAM SRI NARASIMHA, JJ.
Jabir & Ors. - Appellants
Versus
The State of Uttarakhand - Respondent
Criminal Appeal No(s). 972 of 2013
Decided On : 17-01-2023
(A) Indian Penal Code, 1860 – Sections 302, 364 and 201 – Murder, kidnapping and screening of evidence – Life imprisonment – Concurrent conviction of appellants rests entirely on “last seen” theory, upheld by courts below – Delay of 42 days in recording of FIR – There are serious flaws in testimony of PWs – “Last seen” doctrine has limited application, where time lag between time deceased was seen last with accused and time of murder is narrow – Court should not convict an accused only on the basis of “last seen” circumstance – Save the “last seen” theory, there is no other circumstance or evidence – Conviction and sentence of appellant-accused set aside. (Paras 16, 22, 23, 25 and 26)
(B) Criminal Law – Circumstantial evidence – In circumstantial evidence cases, prosecution is obliged to prove each circumstance beyond reasonable doubt, as well the as links between all circumstances – Such circumstances, taken cumulatively, should form a chain so complete that there is no escape from conclusion that within all human probability, crime was committed by accused and none else – Facts so proved should unerringly point towards guilt of accused – Circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis than that of guilt of accused and such evidence should not only be consistent with guilt of accused but should be inconsistent with his innocence. (Para 21)
Facts of the case:
Appellants were convicted under Sections 302 of the Indian Penal Code, 1860 and sentenced to life imprisonment as well as 7 years under Section 364, IPC and imprisonment for 5 years under Section 201, IPC. Their conviction and sentence was upheld by Uttarakhand High by Judgment and Order dated 05.10.2012 in Crl. No. 358/2004.
Findings of Court:
Time gap between when the deceased was seen in the company of the accused on 09-10-1999 and the probable time of his death, based on the post mortem report, which was conducted two days later, but was silent about the probable time of death, though it stated that death occurred approximately two days before the post mortem, is not narrow.
Result : Appeal allowed. Appellants acquitted.
The legal document discusses the case of a murder where the primary evidence relied upon was the "last seen" theory. The court emphasizes that this theory has limited application, especially when there is a significant time gap between the last sighting of the deceased with the accused and the actual time of death. In such circumstances, conviction solely based on the "last seen" evidence is not justified unless supported by additional corroborative circumstances that form a complete and unexplainable chain pointing directly to the guilt of the accused (!) (!) .
The court highlights that in cases based on circumstantial evidence, the prosecution must prove each circumstance beyond a reasonable doubt, and all circumstances should collectively establish guilt to the exclusion of any other hypothesis. The evidence must be consistent only with the guilt of the accused and must be incapable of explanation by any innocent hypothesis. The chain of evidence must be complete, leaving no reasonable doubt about the accused's guilt (!) (!) .
In this particular case, the testimonies of witnesses who claimed to have seen the deceased with the accused on specific dates are fraught with inconsistencies and serious flaws, such as unexplained delays in recording statements and discrepancies in their accounts. Witnesses related to the family and involved in the investigation appeared to have motives to falsely implicate the accused, and their testimonies were not entirely trustworthy (!) (!) (!) .
Furthermore, the delay in lodging the FIR, which was nearly six weeks after the incident, diminishes the reliability of the evidence connecting the accused to the crime. The absence of additional evidence linking the accused to the act, along with the unreliable nature of the testimonies, leads to the conclusion that the prosecution has not established its case beyond a reasonable doubt (!) (!) .
The court also underscores that the "last seen" theory should not be used as the sole basis for conviction unless the time gap is minimal and the evidence forms an unbroken chain of circumstances. In this case, the time gap was significant, and the evidence was insufficient to exclude other possibilities, making the conviction unjustified (!) (!) .
As a result, the court sets aside the conviction and orders the release of the accused, emphasizing the importance of a complete and credible chain of circumstantial evidence to sustain a conviction in criminal cases. The judgment reinforces that reliance solely on the "last seen" evidence without corroborative circumstances is inadequate for a conviction.
JUDGMENT :
S. Ravindra Bhat, J.
1. The appellants were convicted under Sections 302 of the Indian Penal Code, 1860 (hereinafter “IPC”) and sentenced to life imprisonment as well as 7 years under Section 364, IPC and imprisonment for 5 years under Section 201, IPC. Their conviction and sentence was upheld by the Uttarakhand High Court.,1[By judgment and order dated 05.10.2012 in Crl. No. 358/2004]
2. Haseen, aged about 7 years, was the son of Bisarat, (PW-1), a resident of village Akbarpur. He went missing on 08.10.1999. On 10.10.1999, at about 16:30, the dead body of Haseen was found in the sugarcane field of Yaqub in Village Narayanpur, situated at a distance from Akbarpur, Haseen’s village. Information was sent to the Police Station Manglor. Inquest proceedings were held by ASI Dalchand, PW-6. The post-mortem was conducted on 11.10.1999 by Dr. A.K. Jain (PW-9). According to his statement, death had occurred about two days before the post-mortem examination.
3. PW-1, Bisarat moved an application under Section 156(3) Code of Criminal Procedure (hereinafter “Cr. PC”) on 19.11.1999. Based on the order of the magistrate concerned, the first information report (FIR) was recorded on 21.11.1999. In the FIR, the informant alleged that his son Haseen was missing since 3 PM on 08.10.1999 and that despite search, he could not be found. He went to PS Manglor on 10.10.1999 on the day dead Haseen’s body was found. He also narrated about the post-mortem examination on 11.10.1999. PW-1 stated that he was busy in making inquiries. He was told by Sayeed Ahmad (PW-3) and Murad Ali (PW-2) that they had seen A-3 Husn Jahan taking deceased boy Haseen into her house on 08.10.1999 at about 3.30 PM. Suleman (PW-4) told him that on 09.10.1999 at about 6 AM he had seen Haseen standing along with A-1 Jabir and A-2 Jakir on the road near Yaqub’s sugarcane filed. He (PW-1) immediately went to PS Manglor to lodge the report on the morning of 12.10.1999, but his report was not recorded. He then met S.P., Haridwar on the same day, but police did not interrogate him or his witnesses nor take any action against the accused persons. Based on these allegations, the police investigated the incident, and during the course of those proceedings, arrested the accused-appellants.
4. After investigations were completed, the police, in their final report, alleged that the appellants were guilty of the offences. Charges were framed against them, by the court. The prosecution, to establish its allegations, relied on the testimony of 12 witnesses. The defence did not examine any witness. Based on the materials placed before it, the trial court convicted the appellants, who then appealed to the High Court. The impugned judgment affirmed the trial court’s findings.
Appellants’ contentions
5. It is argued, on behalf of the appellants, that the conviction and sentence imposed in this case, is unsustainable. It was argued that no reason was given why the FIR was lodged almost five weeks after the deceased boy went missing and after his body was found on 10.10.1999. The complainant stated that on 12.10.1999, he was told by the witnesses that on 8.10.1999, the third appellant, A-3 Husn Jahan, was seen taking the child inside her house, and on 9.10.1999 at 6 AM, the child was seen along with accused Jabir and Jakir. The application under section 156(3) Cr. P.C. was moved on 19.11.1999, i.e., after more than one month. In the mean-time no application was sent to any officer. There is no explanation for a delay of more than a month.
6. It was urged that there is discrepancy in the testimonies of various witnesses, particularly that of PW-1 (father of the deceased) and the others, particularly PW-4 and PW-5, as to whether the suspicion of the accused’s involvement was, in fact, reported within a couple of days after the boy’s body was found. Counsel especially highlighted that the police witnesses did not support the version of PW-1 that he had voiced suspicions contemporaneously. Further, i
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