IMPORTANT POINT
Last seen theory is a week evidence by itself. However, coupled with other circumstances such as close proximity with recovery of corpse and non-explanation by accused u/s 106, Indian Evidence Act, 1872 conviction can be based on it.

JUDGMENT

NAVIN SINHA, J.

The appellant assails his conviction under Section 302 read with Section 201 I.P.C., by the Additional Sessions Judge, Hissar in case No.54SC (RBT) of 2008, affirmed by the High Court, based on the last seen theory.

2. PW7, Krishan Kumar lodged an F.I.R. on 11.09.2007 with regard to his missing nephew, the deceased Kapil Kumar who was thirteen years old. The deceased had gone to the village the previous evening at about 6:00 PM to deliver milk to customers. The witness and his relative PW9, Richhpal had seen the deceased with the appellant at about 9:00 PM on the Khairpur Road, Sarangpur, going on a bicycle together. The deceased did not return home at night. His dead body was found the next morning lying concealed in a heap of dry fodder in the fields of Subhash. The appellant was stated to have had an altercation with the deceased a few days ago with regard to payment of milk. The disclosure by the appellant under Section 27 of the Evidence Act after his arrest, led to recovery of the atlas bicycle belonging to PW7, and the milk can with the name of the witness inscribed on it.

3. Learned Counsel for the appellant assailing the conviction, submitted that the dead body was found at a considerable distance from where he was last seen with the deceased and in the opposite direction. It is highly unlikely that the appellant would have carried the dead body for the long distance. The recovery is planted, as the second seizure witness Kheda had not been examined. The appellant would not have hidden the bicycle and the milk can near his own house to facilitate his implication. The story of the milk can and an altercation few days earlier in Court, were improvements as no such statement had been made by PW7 in the FIR or statement under Section 161 Cr.P.C.

4. There was a contradiction between the evidence of PW7 and PW9 with regard to intimation given to the Sarpanch at night itself. There was also a contradiction between the statement of the two witnesses with regard to time when the dead body was discovered and the police reached the spot. There was no evidence with regard to the bicycle as belonging to PW7. The father of the deceased, PW8, Subhash had come to the village in the morning itself looking for his son which is suggestive that the deceased was missing since earlier creating doubts about the last seen theory. Alternately, if the deceased was missing since the previous night, the conduct of PW7 in not informing PW8 at night itself was highly unnatural. PW7 and PW9 were thus not reliable witnesses. To sustain a conviction on basis of circumstantial evidence, it was necessary that all links in the chain of circumstances must be complete leading to the only hypothesis for guilt of the accused. If there were any missing link in the chain of circumstances and the possibility of innocence cannot be ruled out, the benefit of doubt must be given by acquittal. Any recovery on basis of confession, under Section 27 of the Evidence Act, cannot form the basis for conviction.

5. Learned counsel for the State submitted that the deceased was last seen with the appellant the previous night at about 9.00 PM going on a bicycle and did not return at night. The dead body was found next morning in the vicinity of the area they were last seen together. The postmortem conducted on 12.09.2007 at 2:15 PM estimates the time elapsed since death as 2436 hours and which coincides with when the deceased was last seen with the appellant. Motive for the crime existed. The conduct of the appellant in absconding after the occurrence is also an incriminating factor against him. PW7 had identified the bicycle as belonging to him and the milk can had his name inscribed on it.

6. We have considered the respective submissions and the evidence on record. There is no eye witness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence and the plethora of