The sufficiency of last-seen evidence and the importance of the time gap and circumstances enwombing the last-seen evidence in establishing guilt beyond a reasonable doubt.

PRADEEP NANDRAJOG, J. (Oral)

1. On the strength of last-seen evidence spoken through the mouth of PW-5 as also the evidence of motive for the crime emerging through the mouth of PW-5 and the recovery of a blood stained shirt stately of the appellant which he was allegedly wearing when the crime was committed on which human blood of the same group as that of the deceased was detected, as also the recovery of a blood stained knife on which human blood of the same group as of the deceased was detected; the two recoveries being at the instance of the appellant, vide impugned judgment dated 26.02.1999, the appellant has been convicted for the offence of having murdered Om Prakash. Co-accused Bablu and Devender have been acquitted holding that no incriminating evidence has surfaced qua them.

2. Vide order on sentence dated 27.02.1999, the appellant has been sentenced to undergo imprisonment for life.

3. D.D.No.17-A, recording information at PS Kotla Mubarakpur notes the time 10.15 PM and the date 07.11.1996 when the information was received at the Police Station. The information noted is that a person, smeared with blood, was lying behind Jawala Prasad Timber Market.

4. As deposed to by SI Om Prakash, PW-17, he was the one to whom D.D No.17-A, exhibited as “Ex.PW17/A”was entrusted for investigation. He states that when he reached the spot, he found a person, lying in an injured condition having injuries on the eyes and the face. He took the person to the Casualty of AIIMS, where the doctor on duty proclaimed the person “brought dead”.

5. From the aforesaid evidence, it is apparent that the deceased was injured at around 10.15 PM. The place where he was injured was a public street behind Jawala Prasad Timber Market.

6. Prosecution had cited four witnesses to establish that the deceased was last seen alive in the company of the three accused person.

7. Unfortunately for the prosecution, at the trial, Ram Khilari PW-1, and Santosh Kumar PW-4, turned hostile and resiled from their statements recorded under Section 161 Cr.P.C, wherein they had ostensibly told the Investigating Officer that the deceased was seen by them in company of all the accused at around 8.45-9.00 PM near the place where the deceased was found injured by SI Om Prakash i.e. the public street behind Jawala Prasad Timber Market.

8. Neelam Kumari,PW-5, the witness who stood by her statement made before the Investigating Officer, deposed that at around 7.30 PM on the day of the incident, the appellant had left the house of her uncle i.e. the deceased Om Prakash and the purpose of the two leaving together was to see a picture. She further deposed that for the last two months the deceased and the appellant were not on speaking terms.

9. A perusal of the impugned decision would reveal that the learned Trial Judge has rightly discarded the testimonies of PW-1 and PW-4. But, relying upon the testimony of PW-5 has held that her testimony has proved that the deceased and the appellant were last seen together at 7.30 PM, when the two left the house of the deceased and that her testimony establishes a motive for the crime i.e. a quarrel between the two.

10. Linking the aforesaid evidence of last-seen and motive, the learned Trial Judge has believed the prosecution, that the appellant got recovered a knife on which human blood of the same group as that of the deceased was detected and as per the doctor who conducted the post-mortem on the dead body of the deceased, the knife was the possible weapon of offence. Further, the learned Trial Judge has linked the recovery of the shirt, stately worn by the appellant when the crime was committed, on which shirt, human blood of the same group as that of the deceased was detected to the crime on the reasoning that if on the shirt worn by the appellant when the crime was committed, human blood of the same group as that of the deceased was detected, it would support the inference that the appellant was the assailant.

11. From the fo