Conviction based solely on last seen evidence is insufficient without corroborative evidence or motive, leading to the acquittal of the appellants.

ORDER

Per: Justice Atul Sreedharan

All these four appeals have been heard together with the consent of parties.

2. As regards, the Cr.A. No.1122/2010 of Rakib Khan @ Raksi, an application has been filed for suspension of sentence and bail. He has already completed 08 years of sentence. The appellants in other appeals have been granted bail immediately after the appeals were filed and are on bail as on date.

3. The appellant Rakib Khan @ Raksi was also granted bail by this Court vide order dated 04.10.2010, but was subsequently taken into custody on account of not appearing before the Registry of this Court on the assigned dates.

4. With the consent of the parties, the appeal is heard finally and decided.

5. Aggrieved by the judgement of the learned trial Court dated 17.05.2010 by which they have been convicted and sentenced to suffer life imprisonment for the offence under Section 302 r/w 201 of IPC for the murder of Mister @ Riyaz Khan, the present appeals have been filed.

6. The undisputed fact in this case is that conviction is based only on circumstantial evidence. There are no eyewitnesses to the murder itself. However, Md. Jafi (PW-4), Amin Khan (PW-7) and Amzad Khan (PW-8) are the witnesses to the last seen, who had seen the deceased in the company of the appellants herein at 11:00 PM of 31.05.2009 and the body of the deceased was recovered from the river on 01.06.2009 at 08:00 AM. The learned trial Court has convicted the appellants on the basis of the testimonies of the aforementioned PWs, who are witnesses to the last seen and on the basis of the artifacts related to the offence.

7. Learned counsel for the appellants submits that even if the testimony of PW-4, PW-7 and PW-8 are believed and even if the time span between the last seen and the recovery of the body is also taken into account as short, the appellants could not have been convicted only on the basis of last seen evidence in the absence of any independent links in the chain of circumstance like motive or the recovery of the artifacts from them. In other words, learned counsel for the appellants have argued that the learned trial Court failed to appreciate that there were several missing links and that the chain was not contiguous, which would conclusively establish the guilt of appellants beyond reasonable doubt and also exclude any parallel hypothesis relating to the innocence of the accused. He further submits that there are contradictions on factual aspects between the statements of PW-4, PW-7 and PW-8. They have also argued that PW-4 and PW-7 were initially declared hostile by the prosecution and the incriminating part against the appellants have been brought out in the course of cross-examination by the Public Prosecutor. The learned counsels have also argued that the sticks that have been seized from the appellants did not reveal any blood stains in the FSL report.

8. Learned counsel for the respondent/State, on the other hand, has vociferously argued that order passed by the learned trial Court is just and proper calling for no interference by this Court. His main reliance has been on the short span between the last seen theory and the recovery of the dead body, which is less than 12 hours. He further submits that PW-7 has been turned hostile in his examination-in-chief. Learned counsel for the respondent/State further submits that a Jute sack, which was seized from the house of one of the appellants, has tested positive for human blood which has not been explained by the accused persons. In regard to this, he has submitted that the learned trial Court has relied on the examination-in-chief of PW-8. He has further submitted that the post-mortem report also corroborates that the assault on the deceased was carried out by hard and blunt instruments on account of which the death of the deceased occurred. As regards the absence of any blood stains on the sticks recovered from the appellants herein, learned counsel for the respondent/State submits that such absen