The sufficiency of circumstantial evidence and the last seen theory in establishing the guilt of the accused.

ORDER :

(Arun Bhansali, J.)

1. This appeal is directed against the judgment dated 10/2/1995 passed by the Addl. Sessions Judge, Banswara in Sessions case no. 325/1992, whereby, the appellant was convicted and sentenced as under :

2. The facts of the case, as revealed, inter alia indicate that Mohd. Ishaq, P.W.1, gave written report (Ex.P/1) at Police Station, Kotwali, Banswara to the effect that on 1/7/1992 at about 2.00 pm he along with his brother Mohd. Noor was filling mud in the ‘Nala’ situated in the field of Parkha Ram; at that time two girls went towards Ankaleshwar; after 20 minutes they heard cries, they felt that somebody might have caught the girls so they went to the hill and saw one girl was standing and another girl was tied to the tree, they went there and asked the girl as to what happened to the other girl tied to the tree, she replied that two boys of Aamli Kheda had killed her, she indicated her name as Leela and that deceased was Tara. They asked Leela to accompany them to police station, her conduct was abnormal. The police registered the case against unknown persons and started investigation. During the course of investigation, the appellant was arrested and ultimately challan was filed.

3. The trial court framed charges under Section 302, 364 and 394 IPC. On behalf of the prosecution as many as 11 witnesses were examined and the appellant recorded her statement under Section 313 Cr.P.C. After hearing the parties, the trial court by its impugned judgment dated 10/2/1995 convicted and sentenced the appellant as indicated above.

4. Learned counsel for the appellant made vehement submissions that the trial court fell in error in convicting the appellant for committing offence under Section 302 & 364 IPC.

5. Submissions have been made that there was no direct evidence to prove that the appellant had committed the offence and the trial court, based on the alleged circumstantial evidence and purported last seen, has wrongly convicted the appellant.

6. It was emphasized that neither the chain as required for conviction based on circumstantial evidence is complete nor someone can be convicted only based on last seen evidence. It was emphasized that the two circumstances, which were relied on by the prosecution i.e. purchase of rope by the appellant, could not be relied on as the witness proving the fact of purchase, Alok Nagawat, P.W.5, has turned hostile and the other circumstance pertaining to recovery of nose ring from the appellant has not been believed by the trial court itself.

7. Submissions have also been made that Dr. L.C.Maida (P.W.4), who had conducted postmortem of the deceased, clearly indicated that some white discharge was there at the vaginal orifice of the deceased and her pubic hair were stuck together, the said discharge was sent for chemical analysis and in cross examination he indicated that the discharge was like semen and if it was confirmed from chemical analysis, it could not be denied that the deceased was subjected to intercourse. However, despite the fact that said material was sent for chemical analysis, the FSL report never saw the light of the day, which material evidence has apparently been suppressed and, therefore, the conviction of the appellant cannot be sustained. It was emphasized that it is well settled that conviction cannot be upheld only based on the theory of last seen. The appellant only on account of her friendship with the deceased has been trapped in the name of last seen, whereas, she had nothing to do with the offence and, therefore, the appeal be allowed. Reliance was placed on Basheera Begam vs. Mohd. Ibrahim & Ors. : (2020) 11