The theory of last seen together is insufficient for conviction without corroborative evidence and motive, warranting suspension of sentence.

ORDER :

HEMANT M. PRACHCHHAK, J.

1. Rule. Learned APP waives service of Rule on behalf of respondent State. By consent, Rule is fixed forthwith.

2. By way of this application under Section 430 of BNSS, 2023, the applicants namely, Jethiyabhai Bhavlabhai Rathva, Nevsingbhai Jethiyabhai Rathva and Vitthalbhai Jethiyabhai Rathva, seek suspension of sentence awarded to them by the Sessions Court concerned for the offence punishable under Sections 302, 201 and 114 of the Indian Penal Code.

3. The present appeal and the application for suspension of sentence arise from the judgment dated 10.09.2024 and order of sentence passed in Sessions Case No. 08 of 2019, whereby, the applicants herein were convicted and sentenced as under:

4. Facts and circumstances giving rise to file appeal as well as this application are that on 19.11.2018, at around 9:00 AM in the morning, while original first informant was out of his house in order to procure Aadhar Card of his father and returning back to his house at 6:00 PM in the evening, he saw his brother i.e, deceased, present in the house whereas, original first informant after having his dinner, when went out towards a field, at that juncture, he saw his brother (deceased) in the company of the applicant Nos.1 and 2 talking to each other, after which, original first informant returned back to his house and asked his mother to go and call the deceased. Mother of the original first informant since was unable to locate the deceased, she again came back informing the original first informant about the same. Original first informant thereafter, tried to know the whereabouts of the deceased carrying out search in the village and in the Faliya in which he was residing. On next day morning, i.e. 20.11.2018, again when original first informant, his parents went into search of the deceased so also informing other relatives at around 1:00 PM in the afternoon, one Mukeshbhai Dersingbhai Rathva called up the original first informant informing him that there is a dead body of one person lying on the road of village Chiliyavant, identified as a dead body of the deceased on which entire family rushed to the said place, saw dead body of the deceased lying, as was informed with a motive that some lady dispute cropped up between the accused side and the deceased in past, for which a quarrel ensued, nurturing that very grudge, applicant Nos. 1 and 2 eliminated the deceased with that understanding and suspicion, FIR was lodged with Rangpur Police Station on 20.11.2018. Govindbhai Narubhai Rathva, brother of the deceased, filed an FIR/complaint bearing C.R. No.50 of 2018 with Rangpur Police Station, Dist.: Chhota Udepur, dated 20.11.2018. Pursuant to the FIR, the applicant accused was apprehended and at the end of investigation, chargesheet came to be filed against him. He was tried by the Sessions Court. The learned Sessions Court has convicted the applicant for the offences as referred above.

5. Learned advocate Mr. Pratik Barot, appearing on behalf of the applicants while praying for suspension of sentence contended that, the conviction and sentence awarded by the trial Court is not sustainable in eye of law. He has submitted that the case is rest upon circumstantial evidence namely, evidence in nature of last seen together, wherein, the witness PW-1 - Govindbhai being the brother of the deceased and PW-3 – Radtiben being the mother of the deceased, who were witness to last seen together, have not supported the case of the prosecution, except these two witnesses, there is no other witness with regard to the theory of last seen together