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2016 Supreme(Raj) 1239
IN THE HIGH COURT OF RAJASTHAN
Gopal Krishan Vyas & Deepak Maheshwari, JJ.
Avtar Singh and Anr. – Appellants
Versus
State of Rajasthan – Respondent
D.B. Criminal Appeal No. 136 of 2013
Decided On : 31-05-2016
For the Appellant : Mr. Manoj Garg
For the Respondent: Mr. C.S. Ojha
Headnote:(A) Indian Penal Code,1860- Sections 302, 364 and 201- Accused was charged for kidnapping accompanied with murder and causing disappearance of evidence – Prosecution case was based on circumstantial evidence and last seen evidence - FIR filed after 5 days by complainant for which there is no explanation on record and no other linking evidence is on record to connect Appellants/Accused with the crime – The complete linking chain of the circumstantial evidence is missing - Prosecution failed to prove its case beyond reasonable doubt - Conviction and sentence set aside - Accused acquitted.
(B) Evidence Act, 1872 - Sections 7 and 106- Last seen evidence - Last seen evidence is one of the species of circumstantial evidence - Last seen evidence as per section 107 is relevant evidence against accused – Two things must be proved by the prosecution – That the accused was seen alone in company of deceased - That at such a place where no other person is expected to interfere - First burden of proof is on prosecution to prove above said elements and it is only after prosecution successfully proves them that burden shifts on accused to prove his defense - Last seen evidence does not by itself necessarily lead to inference that accused committed crime unless same is duly supported by other links in chain of circumstantial evidence unerringly pointing out towards guilt of accused - Theory of last seen evidence is thus held to be not of universal application based on which conviction of accused can be sustained - Last seen evidence is only relevant evidence to complete chain of circumstantial evidence.
The instant criminal appeal has been filed by the appellants under Section 374(2) Cr.P.C. challenging the judgment dated 29.01.2013 passed by learned Addl. Sessions Judge, Anoopgarh, District : Sri Ganganagar, in Sessions Case No. 22/2009, whereby the appellants were convicted for the offence under Sections 302, 364 and 201 of IPC and following punishment was passed against them :
Under Section 302 IPC : Imprisonment for life with a fine of Rs. 5,000/-, in default of payment of fine to further undergo one month's SI. Under Section 364 IPC : Simple Imprisonment for 10 years with a fine of Rs. 5,000/- and in default of payment of fine, to further undergo one month's S.I.
Under Section 201 IPC : Simple Imprisonment for 7 years with a fine of Rs. 3,000/ and in default of payment of fine, to further undergo of fifteen days' additional S.I.
2. Briefly stated, the facts of the case are that the FIR No. 26/2006 (Exhibit-P/12) was registered upon a complaint filed by Smt. Mahendra Kaur (PW.7) on 15.02.2006 at 05.15 PM at Police Station - Raisinghnagar, under Sections 363, 365 IPC and Section 3 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. In the FIR, it was alleged that on 10.02.2006, Avtar Singh S/o Gurbachan Singh Jat of 56 GB (B), who runs a Tempo, came to her house at 04.30 PM and asked her son, namely, Bhajan Singh, that he is coming back after leaving passengers you get ready to go with me, I will make arrangement for your employment as tempo driver at Anoopgarh. According to the complainant, her son was having driving licence and was plying a tempo. After some time, Avtar Singh, his brother, namely, Ravinder Singh and Rajia S/o Sardul Ram Naik came in a tempo at 05.30 PM to my house and asked my son to go with them. As per the complainant, her son said that I am going in tempo with above persons and will come back, my husband and neighbour's son, Gurjeet Singh, Gopal Singh were also present when Bhajan Singh went along with appellants, however, did not return back to the home till night. In the next morning, the complainant asked Harvinder Singh, Amrik Singh etc. about the said fact and went to the house of Gurbachan Singh along with them. In the house, nobody was found, thereafter, they made search of Bhajan Singh, but not traced out Bhajan Singh. The complainant raised doubt against Avtar Singh, Ravinder Singh and Rajia as she apprehended that her son has bean kidnapped by them. The complainant lodged the FIR on 15.2.2006 at about 5.15 pm at Police Station, Raisinghnagar after five days. After registration of the FIR (Ex.P/12), the Station House Officer, Police Station Raisinghnagar commenced the investigation.
3. On 16.02.2006, complainant, Smt. Mahendra Kaur and Kashmir Singh appeared before the Police Station and informed that upon search, they reached 65 GB, near the agricultural field of Pal Singh, where they got information that something is lying in the crop of mustard (HINDI) and dogs were also walking there. In the said agricultural field, I found that dead body of my son is lying there. The investigating officer upon receiving such information went in the agricultural field of Pal Singh, resident of 65 GB, Murabba No. 49 Kila No. 21 and found that body of one person was lying there. Complainant Smt. Mahendra Kaur, identified the dead body of her son, Bhajan Singh. Thereafter, the Investigating Officer prepared Exhibit-P/1 and took the dead body of Bhajan Singh in his possession. The complainant, mother of deceased, put her thumb impression upon the memo of recovery of dead body. The police added offence under Section 302 and 365/34 of IPC read with Section 3 of the SC/ST Act and gave information to the higher authorities.
4. During the investigation, the accused appellants were arrested and upon completion of investigation, police filed charge sheet against the accused appellants for the offences under Sections 302, 364 and 34 of IPC and Section 3(2) of the SC/ST (Prevention of Atroc
