A conviction based solely on the 'last seen together' theory is legally insufficient without a complete chain of circumstantial evidence. Confessions made to police are inadmissible, and recovery evidence must strictly pertain to the discovery of facts rather than incriminating statements about the crime itself.

Headnote:(A) Indian Evidence Act, 1872 - Sections 25 and 27 - Confession to police - Admissibility - Confessional statement made by an accused while in police custody is inadmissible as evidence under the law - Section 27 serves as a proviso to this rule, allowing only that portion of information which leads distinctly to the discovery of a fact, such as a physical object or knowledge of a hidden location, to be admitted. (Paras 24-25)

(B) Circumstantial Evidence - Last seen together - Standard of proof - Where a conviction relies on circumstantial evidence, the chain of circumstances must be complete and lead only to the hypothesis of the accused's guilt, excluding all other possibilities - The theory of 'last seen together' does not by itself establish guilt and cannot form the sole basis for conviction in the absence of other connecting incriminating evidence, particularly where a significant time gap exists between when parties were last seen and the incident occurs. (Paras 27-32)

Facts of the case:
The appellant was convicted by the lower court for the death of his spouse and subsequent destruction of evidence. The prosecution relied primarily on the theory of being 'last seen together' and the recovery of items following a memorandum statement provided by the appellant while in police custody. The witness assertion regarding the 'last seen' theory was brought forth for the first time during the trial proceedings, significantly after the filing of the missing person report.

Findings of Court:
The confessional statement made to the police officer is barred by the statutory prohibition against using such statements as evidence. The 'last seen together' theory, given the delayed reporting and the lack of other cogent links, failed to complete the chain of circumstances required to prove guilt. The court determined it was unsafe to convict based solely on this theory.

Issues: Whether the confessional statement made to investigation officers is admissible; whether the circumstantial evidence, specifically the 'last seen together' theory, is sufficient to sustain a conviction in the absence of a complete chain of proof.

Ratio Decidendi: A conviction cannot be sustained solely on the 'last seen together' theory without a complete chain of circumstantial evidence. Confessions made to police remain legally inadmissible, and discovery evidence related to an accused's statement must be strictly limited to the recovery of facts or objects, protecting the accused from the use of compelled or custodial statements.

Result: Appeal allowed; conviction and sentence set aside; appellant acquitted.

Judgment on Board

Per Ramesh Sinha, Chief Justice

29.04.2024

1. This criminal appeal under Section 374(2) of the CrPC is directed against the judgment of conviction and order of sentence dated 07.10.2023 passed by the Sessions Judge, Bastar at Jagdalpur (C.G.) in Sessions Trial No.41/2020, whereby the learned Sessions Judge has convicted the appellant for offence punishable under Sections 302 and 201 of the IPC and sentenced him to undergo imprisonment for life & fine of Rs.1,00/-, in default of payment of fine additional R.I. for 01 month and R.I. for three years & fine of Rs.100/-, in default of payment of fine additional R.I. for 01 month respectively with a direction to run both the sentences concurrently.

2. Case of the prosecution, in brief, is that on 12.04.2020, the complainant Atab Netam gave Merg Intimation (Ex.P-8) to the Police Station – Kotwali, Jagdalpur to the effect that his daughter Kavita Netam (deceased) who worked at Kumharpara Petrol Pump went missing when she left for home on 08.04.2020 at around 4.30 pm and while searching her, on 09.04.2020 the scooty of missing person Kavita was found in suspicious condition in the bushes of village Dodrepal forest. On the basis of which the Police Station Kotwali, Jagdalpur registered Missing Person Case No. 18/2020 and in the morning of 12.04.2020, a half burnt dead body in the forest, in front of Shiva temple, on the basis of half burnt clothes, shoes and physical structure present in the dead body, the dead body was identified as missing person Kavita Netam and on finding that an attempt was made to burn the dead body with the help of dry leaves, the dead body which appeared to be three-four days old, was full of insects and was giving off a foul smell. Based on the above information, Merg Intimation No. 30/2020 was registered in Police Station, Kotwali Jagdalpur on 12.04.2020.

3. Investigating Officer left for scene of occurrence on the same day i.e. 12.04.2020 and prepared visual map (Ex.P-10) of the incident site as per the instructions given by the applicant Atab Netam. After summoning the witnesses vide Ex.P-2, inquest over the dead body of the deceased was prepared vide Ex.P-1 and the dead body of the deceased Kavita Netam was sent through Constable No. 807 Ved Prakash Deshmukh after giving duty certificate (Ex.P-27) to Medical College, Dimrapal along with the post-morterm application (Ex.P-18), where Dr. Gyanendra Kumar (PW-13) conducted postmortem on the dead body of the deceased vide Ex.P-19 and found following antemortem injuries :

“1. Scalp ecchymosed on left side parieto-temporal region, left temporal muscle ecchymosed, skull vault intact, dura soft, brain matter having reddish-grey liquid mass.

2. Left side chest muscle ecchymosed from 3rd ribs to 7th ribs intercoastal muscle.

3. Neck muscle ecchyposed, contused, hyoid bone having inward compression fractured.”

He opined that the cause of death of the deceased was due to asphyxia as a result of throattling and the mode of death was homicidal in nature and duration of death was 2 days to 4 days since postmortem examination and Viscera, vaginal slide (2), vaginal swab, controlled swab, tracheal gauge piece, controlled gauge, trachea in a 10% formalin preserved, sealed and handed over to concerned Police Constable.

4. On 12.04.2024 itself, from the incident site, a pair of shoes, a black framed spectacles, a small piece of yellow glass bangle, a black button and a blue scarf worn by the dead body, and a half burned piece of white lined salwar kurta, head phone, a half-burned bunch of hair from the deceased’s head and 100-100 grams each of bloodstained soil and plain soil were recovered in front of the witnesses vide Ex.P-12. After the postmorterm, the Doctor presented 04 sealed boxes related to the preserved viscera and parts of the deceased’s viscera in five sealed packets, vaginal slide, swab, trachea, gauze piece, control gauze piece etc. of the deceased, brought to the Police Station by Constable Ved

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2024 Supreme(Online)(Chh) 14436

Cases Referred (8)