2020 Supreme(All) 803

IN THE HIGH COURT OF ALLAHABAD
SUNITA AGARWAL, AJAY BHANOT, JJ.
Indar – Appellant
Versus
State – Respondent
Criminal Appeal No. 2 of 1987
Decided On : 11-11-2020

Point of Law: The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own he liability for the homicide. In the present case there is no such proximity of time and place.

Headnote:

Indian Evidence Act, 1872 – Section 106 – Penal Code, 1860 – Sections 302, 201, 34 – Order of Conviction – Criminal appeal arises out of the judgment rendered by the learned Additional Sessions Judge-VI, Bulandshahr, in Sessions Trial, State vs. Indar and Others, convicting the appellant for offences under Section 302 and Section 201 of the I.P.C. and imposing punishments of life imprisonment and rigorous imprisonment of two years for the respective offences. –

Finding of the Court:

According to the medical opinion received during trial, the death could have happened between 9th/10th. – The time of death could vary from one to two days. But most importantly, PW-10 Dr. N.P. Agrawal, did not rule out the possibility of the victim dying on 13.01.1985. Consequently, we find that the variation in the time of death was from one and two to four days. – Adopting the evidence which is favourable to the accused, the time of death of Ganga Ram would be four days after he was last sighted with the accused. – This creates a wide time gap between the accused being sighted with deceased Ganga Ram and the latter's death. – There is every possibility of the deceased having met other persons in this period of four days. – Cause of death of Ganga Ram was not within the special knowledge of the accused-appellant. – Section 106 of the Indian Evidence Act, 1872, cannot be invoked against the accused-appellant. – Prosecution having failed to prove any incriminating link in the chain of circumstances, cannot take the assistance of Section 106 of the Indian Evidence Act, 1872, to prove the guilt of the accused-appellant. – The prosecution theory of “last seen together” cannot rescue its failing case. – Court below in the impugned judgment found that the leather belt of yoke of Samrath’s plough was missing. – There was a possibility that the leather belt round the neck of deceased Ganga Ram's body, was in fact the missing belt of Samrath' yoke. – This finding directly incriminated the accused-appellant. – Court is afraid that the finding is made on the foot of conjectures and the very antithesis of the first principles of criminal jurisprudence. – While adverting to the circumstantial evidence, the learned court below upheld the recoveries of the personal articles of deceased Ganga Ram, namely, his kurta, tobacco pouch and pyjama. – These recoveries linked the accused-appellant with the crime. – The accused-appellant was seen in the company of the deceased by various witnesses. But he could not offer an explanation for the death of Ganga Ram. – The illicit relations between the accused Indar and Rajwati, wife of the deceased Ganga Ram, provided the motive for crime. – Thus in the opinion of the learned trial court the chain of incriminating circumstances was complete. – The accused (appellant) was convicted and punished. – The other accused were acquitted. – Trial court clearly misdirected itself in fact, evidence and the law –

Result: Criminal Appeal Allowed