Point of Law: Criminal Law – Appeal against conviction – Theory of last seen – Reliability of - The last seen theory comes into play where the time gap between point of time when Accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than Accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that deceased was last seen with Accused when there is a long gap and possibility of other persons coming in between exists. In absence of any other positive evidence to conclude that Accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.

JUDGMENT :

Ramesh Sinha, J.

1. Since both the appeals arise out of a common order, hence, with the consent of learned counsel for the parties, both the appeals are being decided by a common order.

2. The present two Criminal Appeals have been preferred by the appellants-Rajan Yadav & Teja @ Tej Prakash Yadav against the judgment and order dated 30.01.2010 passed by Special Judge, Gangster Court, Faizabad in Gangster Case No.211 of 2005 (State Vs. Teja alias Tej Prakash Yadav and Another), convicting and sentencing and appellants under Section 323/34 I.P.C. to 1 year R.I., under Section 364 I.P.C. to 10 years R.I. and fine of Rs.2000/- each and in default payment of fine, further 6 months R.I., under Section 302/34 I.P.C. to life imprisonment and fine of Rs.3000/- each and in default of payment of fine further 1 year R.I., under Section 201 I.P.C. to 5 years R.I. and fine of Rs.1000/- each and in default of payment of fine further imprisonment of 6 months R.I. and under Section 3(1) U.P. Gangster and Anti Social Activities (Prevention) Act, 1986 to 4 years R.I. and fine of Rs.5000/- each and in default of payment of fine further imprisonment of 1 year R.I. Further, convicting and sentencing the appellant-Teja @ Tej Prakash Yadav under Section 3/25 Arms Act to 2 years imprisonment and fine of Rs.1000/- and in default of payment of fine 6 months further imprisonment. All the sentences were directed to run concurrently.

3. The prosecution case in brief is that a written report was lodged by the informant Jairaj Yadav, son of Sitaram, stating therein that his brother, namely, Sewaram who was a contractor and used to ply boat on rent in river and used to get the people crossed through the river on the either side. Two moths prior to the incident, his brother had some dispute with Teja @ Tej Prakash, son of Hari Ram and Rajan Yadav, son of Amrit Lal, resident of Ghasiyari Tola, Police Station Kotwali Tanda, District Ambekdarnagar regarding the money charged for the said purpose, on account of which Rajan Yadav and Teja @ Tej Prakash bore enmity with his brother. On 21.12.2004 at about 9:00 p.m. in the night, the informant along with his brother Sewaram and Lal Bahadur Yadav, son of Hari Prasad, resident of Phoolpur, were going to Duhia by passing Alibagh Ghat Kasba Tanda through Nagar Palika and near Nagar Palika, Rajan Yadav and Teja @ Tej Prakash who were armed with hockey, met them. Rajan Yadav and Teja @ Tej Prakash caught-hold his brother Sewaram and dragged him in the premises of Nagar Palika. Thereafter, the informant and Lal Bahadur rushed to save him, then both of the accused assaulted Lal Bahadur with hockey sticks and beaten him mercilessly and thereafter they ran towards him also to assault him, on which the informant along with Lal Bahadur ran to save their lives. Accused Rajan Yadav and Teja @ Tej Prakash dragged his brother Sewaram towards river after beating him. The informant and Lal Bahadur raised alarm, but none had came to rescue them.Thereafter, the informant and Lal Bahadur went on foot and reached the Village Duhia and informed about the incident to his family members as well as to the villagers. They searched Sewaram on both sides of the river, but his whereabouts could not be traced out. The informant had a strong belief that his brother Sewaram had been abducted by Rajan Yadav and Teja @ Tej Prakash with an intention to kill him. Since, the accused Rajan Yadav and Teja @ Tej Prakash are the men of criminal antecedents, hence, he submitted a report at the concerned police station against them for appropriate action.

4. On the basis of the written report submitted by the informant Jairaj Yadav, the F.I.R. of the incident was registered at Police Station Kotwali Tanda, District Ambedkarnagar on 22.12.2004 against the accused Rajan Yadav and Teja @ Tej Prakash which was registered as Case Crime No.350 of 2004, under S