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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Sanjaya Kumar Mishra, Alok Kumar Verma, JJ.
Gopal Dutt. – Appellant
Versus
State of Uttarakhand – Respondent
Criminal Appeal No. 61 of 2014
Decided On : 05-07-2022
Last Seen Theory - Criminal Law - Indian Penal Code, 1860, Section 302, 201 - The court discussed the last seen theory and the time gap between the last sighting of the accused and the discovery of the dead body. It emphasized the importance of the time gap in determining the applicability of the last seen theory and the need for corroborating evidence to establish guilt. The court also highlighted the lack of motive and the unexplained circumstances surrounding the case, leading to the acquittal of the accused.
Fact of the Case:
The appellant was convicted for the offences under Section 302, 201 of the Indian Penal Code, 1860, based on the prosecution's case that he was last seen with the deceased before the latter's body was discovered. The trial court found the appellant guilty, but the appellant appealed against the conviction.
Finding of the Court:
The court found that the prosecution failed to prove its case beyond reasonable doubt against the appellant, emphasizing the wide time gap between the last sighting of the appellant with the deceased and the discovery of the dead body. It also noted the lack of motive and unexplained circumstances, leading to the acquittal of the appellant.
Issues: The issues revolved around the applicability of the last seen theory, the time gap between the last sighting of the accused and the discovery of the dead body, the presence of corroborating evidence, the motive for the crime, and the unexplained circumstances surrounding the case.
Ratio Decidendi: The court emphasized the importance of the time gap in determining the applicability of the last seen theory and the need for corroborating evidence to establish guilt. It also highlighted the lack of motive and the unexplained circumstances surrounding the case, leading to the acquittal of the accused.
Final Decision: The appeal was allowed, and the appellant was acquitted of the charges under Section 302, 201 of the Indian Penal Code, 1860. The impugned judgment and order of conviction were set aside, and the appellant was set at liberty.
JUDGMENT :
Sanjaya Kumar Mishra, J.
1. In this appeal filed against conviction, appellant Gopal Dutt has assailed the judgment and order dated 28.09.2013 rendered by the learned Additional Sessions Judge / Special Judge, EC Act, Nainital, in Sessions Trial No. 02 of 2008, arising out of Case Crime No. 923 of 2007, Police Station – Ram Nagar, District Nainital whereby the trial Judge has convicted the appellant for the offences under Section 302, 201 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC” for brevity) and sentenced him to undergo imprisonment for life and to pay fine of Rs. 5000/- and in default of payment of fine, to undergo further simple imprisonment of one year under Section 302 IPC and to undergo rigours imprisonment for three years and to pay fine of Rs. 2,000/- and in default of payment of fine, to undergo further simple imprisonment of three months under Section 201 IPC.
2. The case of the prosecution is that on 23.04.2007, appellant and Beeru i.e. deceased went to Nursery Gate No. 064 for doing menial work. After performing their duties, they were coming towards Lalitpur in their respective bicycle. At about 09.00 p.m., Shri Rakesh Singh, son of Shri Prem Singh Negi and Shri Man Singh Thapa, son of Shri Lal Singh Thapa, both residents of Lalitpur, saw appellant Gopal Dutt and deceased were sitting by the roadside. Thereafter, appellant Gopal Dutt brought the bicycle of deceased to his house (house of complainant) and went to his house. On 24.04.2007, Shri Sanjay Kumar, son of Shri Santosh Kumar, resident of Lalitpur, found the dead body of the deceased near the house of Negi under Cutguleri tree being concealed inside the bushes. He also found that the dead body of the deceased was completely naked and a belt was tied around his neck and that his testicles were in swollen condition. He informed this fact to the complainant, who happens to be an elder brother of the deceased, who lodged the FIR before SHO, Police Station Ram Nagar, District Nainital. On receipt of such an FIR, the SHO registered the case and took up the investigation. During the course of investigation, he examined complainant, scribe of the FIR, two witnesses, who had seen the appellant and deceased together near Cutguleri tree on the road side. He sent to body for the post-mortem examination. He collected the material evidence from the site as well as prepared some documents. He also arrested the accused.
On completion of the investigation, he has submitted charge-sheet against the accused for the offences under Section 302, 201 IPC. The defence took a simple plea of denial and false implication in this case but the prosecution in order to prove its case, has examined seven witnesses in total. PW 2 Shri Nemlal is the complainant of the case; PW1 Shri Sanjay Singh is scribe of the FIR; PW3 Rakesh Negi and PW4 Man Singh Thapa, are the two witnesses, who speak about their seeing the appellant in the company of the deceased at about 09.00 p.m. on 23.04.2007 near Cutguleri tree by the side of the road leading to Lalitpur; PW6 Dr. Nilamber Bhatt, who has conducted the post mortem examination on the dead body of the deceased; PW5 Head Moharir Anand Lal, who has prepared the Chik FIR and made endorsement in the GD; and PW7 Inspector Shri Arvind Singh Dangwal, is the Investigating Officer. In addition to examination of witnesses, the prosecution has also produced several documents as exhibits.
3. On the other hand, the learned defence counsel has neither examined any witness nor led any documentary evidence in order to prove its case.
4. The learned trial Judge, taking into consideration the narrations of PW3 and PW4 and opinion of the doctor, who has conducted the post mortem examination regarding nature and time of the death of the deceased, came to the conclusion that the prosecution has proved its case beyond reasonable doubt by establishing all the circumstances relied upon it. He further came to the conclusion that false statement by
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