IMPORTANT POINT
Murder – Theory of last seen together is very weak in absence of motive.

JUDGMENT :

ABHAY S. OKA, J.

1) The Sessions Court has convicted the appellant/accused for the offences punishable under Sections 302 and 201 of the Indian Penal Code vide the judgment dated 13th March 1995. He has been sentenced to undergo life imprisonment. The decision of the Sessions Court has been confirmed by the High Court by the impugned judgment and order dated 5th December 2017. The case is based on circumstantial evidence.

FACTUAL ASPECTS

2) The case of the prosecution will have to be briefly stated. The appellant and deceased (Sushildhar Dubey) were related and were residents of village Amgoan. They used to go together to drink liquor. On 29th September 1993, in the evening, around 7.00, the appellant went to the house of the deceased and asked the deceased to accompany him to drink liquor. They both went to the house of PW-2 (Ramdas) in village Kohaka. They consumed liquor in PW-2’s house, and they left after consuming the liquor. Nobody saw the deceased alive thereafter, and his dead body was found on the morning of 30th September 1993 on the road leading to Village Bijholidhar Amgoan. The prosecution case is based on circumstantial evidence. The circumstances are:

a) Recovery of the knife at the instance of the appellant, which is the instrument of assault on the deceased;

b) Last seen together;

c) Medical opinion on the injury sustained by the deceased and cause of death; and

d) Habit of the deceased of drinking liquor with the appellant.

SUBMISSIONS

3) Learned senior counsel appearing for the appellant has taken us through the notes of evidence of material prosecution witnesses and other documents on record of the Trial Court. His submission is that last seen together is a very weak circumstance as there is evidence on record to show that the appellant and the deceased were related. Very often, they used to consume liquor together. He submitted that the recovery of the knife at the appellant's instance had not been proved. He submitted that even the existence of motive has not been pleaded and proved by the prosecution. He submitted that if the oral evidence of PW-7 (Virendradhar Dwivedi) and PW-15 (Dr. Mahendra Kumar Ahirwal) is considered together, the theory that the death occurred due to an accident of motorcycle cannot be ruled out. Therefore, the benefit of the doubt must be extended to the appellant. He submitted that every circumstance constituting a chain of circumstances has not been established.

4) The learned counsel appearing for the State supported the impugned judgment. She submitted that the dead body of the deceased was found within a few hours from the time at which the appellant and the deceased were last seen together. She submitted that recovery of the weapon used by the appellant to attack the deceased had been duly proved, and all circumstances forming part of the chain of circumstances have been established.

CONSIDERATION OF SUBMISSIONS

5) This case is based on circumstantial evidence. The law governing cases involving circumstantial evidence is no longer res integra. Paragraph 153 of the decision of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 lays down the well-settled principles. Paragraph 153 reads thus:

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]

“Certainly, it is a primary principle