IMPORTANT POINT
Last seen theory comes into play where time gap between point of time when accused and deceased were last seen alive and deceased was found dead was so small that possibility of any person other than accused being author of crime becomes impossible.

Headnote:Indian Penal Code, 1860—Section 302—Body of deceased was found in room where she was residing—Accused-appellant was last seen with deceased in room—Conviction based on circumstantial evidence—Appeal—At the instance of PW2 a case u/s 326 IPC was pending against appellant and deceased was one of witnesses in said case—Deceased and PW2 were auto- rickshaw drivers—Appellant was well acquinted with deceased who was mediating in a dispute between PW2 and appellant—Deceased was last seen with appellant in room by PWs 1, 3 and 4—Court may, depending on facts and circumstances of the case look for some corroboration—No reason why prosecution witnesses would falsely implicate appellant or why they would identify a wrong person—Prosecution proved that appellant was last seen with deceased—Immediate motive for killing might not have been proved but what transpired in a closed room could not be known—Test identification parade in the facts and circumstances was not necessary as sufficient description of appellant was given in FIR and witnesses had sufficient time and opportunity to have a look of accused and accused was arrested soon after incident—Conviction was liable to be upheld.
       Held : Appellant, therefore, was in company with the deceased for a considerable time immediately prior to her death. He was seen by PWs 3 and 4 in between 4.00 and 4.30 p.m. The deceased was found dead at about 4.30 or 4.45 p.m. If the evidence of the prosecution witnesses are believed and we see no reason as to why they should not be, the deceased was last seen with Appellant. What would be its effect would vary from case to case. Whether the said evidence shall be relied upon or not would also be subject to other materials which may be brought on record by the parties. The Court may, however, depending on the facts and circumstances of this case look for some corroboration.(Para 15)
       Each of the witnesses had sufficient time to see Appellant and, therefore, his identification in court by them cannot be discarded. Appellant did not deny or dispute before the Trial Court that the photograph shown to PW-3 was not his. The only contention raised before the Trial Court was that the same was not seized from his house on 4.9.1988. In any event, description of Appellant as disclosed in the First Information Report tallies with that shown in court by the witness.(Para 23)
       There is no reason as to why the prosecution witnesses would falsely implicate Appellant. There was also no reason as to why they would identify a wrong person. The prosecution, therefore, proved that Appellant was the person last seen with the deceased. PW-3 had occasion to see him and the deceased together at least four times as he had been asked to purchase mutton and liquor on three occasions. He had also stated in details as to how liquor was consumed by them. Not much imagination is needed to note the effect thereof. PWs 3 and 4 came to the room of the deceased and knocked the door but Appellant did not allow them to enter inside inter alia on the pretext that she was sleeping. Even if it is assumed that PW-4 could not have seen his face as only upper portion of the door was said to have been opened, PWs 3 and 4 must have heard his voice. Appellant talked to them in the morning. There was no reason as to why they would not be able to identify the voice to be that of Appellant. The immediate motive for killing the deceased by Appellant might not have been proved. What transpired in a closed room cannot be known. The circumstances brought on records amply support the prosecution case and in particular the statements of PW-3.(Para 24)
       We, therefore, have no hesitation in affirming the judgment of the learned Sessions Judge as also the High Court and hold that the circumstances brought on record by the prosecution clearly demonstrate that it was Appellant alone who committed the murder and in that view of the matter absence of motive would be immaterial. [See Mani Kumar Thapa v. State of Sikkim (2002) 7 SCC 157].(Para 34)

JUDGMENT

S.B. Sinha, J.—Jubedabai, deceased although a lady was of unique character. She although passed medical course from Burhanpur and initially started medical practice, she was earning her livelihood by driving an autorickshaw. The first informant, Yusuf Sardar Pinjari (PW-1) was her foster brother. Ashraf Yusuf Pinjari who examined himself as PW-3 was son of PW-1. He at the relevant time was a minor. Jubedabai Abdul Rajjak Shaikh who examined herself as PW-4 was the younger sister of the deceased. Appellant herein was an employee of the State Reserves Police. He was an accused of commission of an offence under Section 326 of the Indian Penal Code for causing hurt to another autorickshaw driver Macchindra Baburao Thombare (PW-2). The deceased was called upon to mediate in the said dispute. PW-2 with a view to settle the dispute between himself and Appellant herein met each other in the morning of 3.9.1988. Appellant thereafter came to the residence of the deceased. He was of black complexion and was sporting beard. The deceased at about 10.30 11.00 a.m. was standing in the balcony of her house. She invited PW-1 for meals as the food was being cooked. He went inside the room and found Appellant present there. They were consuming liquor. PW-3 was asked to bring more liquor. While the deceased, Appellant and PW-1 were in the room, PW-4 Jubedabai Abdul Rajjak Shaikh (sister of the deceased) came. She requested for some money for seeing a movie. The deceased gave her Rs. 5/- for the said purpose.

2. PW-1 finished his lunch early and returned home to have a nap. He overheard the deceased and Appellant conversing in relation to settling of a matter by way of compromise. The deceased gave PW-3 Ashraf a sum of Rs. 11/- for purchasing mutton for the dog. He enquired about the identity of Appellant to which the deceased named him. He recollected that he had seen him teaching Judo Karate in School No. 9. He brought three bottles of beer, payments whereof was made by Appellant. When he was delivering the third bottle of bear, he saw the deceased adjusting the channel of the TV and Appellant had been standing near her and had put his hand round her neck. They mixed drinks. PW-3 further saw Appellant recoiling on the body of the deceased. He thereafter went to his uncles place for watching a serial in T.V. He came back at about 4.00 p.m. The door was locked. He was not allowed entry in the room. PW-4 after witnessing the movie also came back in the meanwhile. Appellant allegedly opened the door partially and peeped through the top of it and informed her that the deceased was sleeping.

3. PWs 3 and 4 separately came to the house of PW-1. He was awakened up and was informed that the room of the deceased was locked from inside. In the meantime, the dog of the deceased was seen out. It was brought back to the house by PW-1 and chained. They took a cup of tea there, and then came back to the place of occurrence. The deceased was found lying unconscious on the bed. Dr. Vasant Kesha Manekar (PW-5) who used to reside on the ground floor of the house was requested to examine her. He on examining declared her dead.

4. PW-4 was asked by the doctor to report the matter to the police. She declined whereupon Dr. Manekar himself lodged a report on the basis whereof a First Information Report (FIR) was lodged at about 1730 hrs. PW-1 in his First Information Report not only gave description of Appellant but also categorically stated that to his knowledge the boy sporting beard was facing a prosecution in the court and the deceased was a witness therein. Appellant was arrested within 12 hours from lodging of the First Information Report on the basis of his description given in the FIR.

5. Appellant was charged for commission of an offence under Section 302 of the Indian Penal Code. He pleaded not guilty thereto. The prosecution in support of its case examined ten witnesses. PW-2 was the complainant in the case against Appellant wherein the deceased

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2006 Supreme(SC) 993

IMPORTANT POINTLast seen theory comes into play where time gap between point of time when accused and deceased were last seen alive and deceased was found dead was so small that possibility of any person other than accused being author of crime becomes impossible.

Cases Referred (6)

IMPORTANT POINT
Last seen theory comes into play where time gap between point of time when accused and deceased were last seen alive and deceased was found dead was so small that possibility of any person other than accused being author of crime becomes impossible.