JABIR & ORS versus THE STATE OF UTTARAKHAND on 17 January 2023

[2023] 1 S.C.R. 969

JABIR & ORS.

v.

THE STATE OF UTTARAKHAND

(Criminal Appeal No. 972 of 2013)

JANUARY 17, 2023

[S. RAVINDRA BHAT AND PAMIDIGHANTAM SRI

NARASIMHA, JJ.]

Penal Code, 1860 – ss.302, 364, 201 – The prosecution casewas that the victim ‘H’, aged about 7 years, went missing on8.10.1999 – On 10.10.1999, his dead body was found in thesugarcane field of ‘Y’ in Village – The victim’s father (PW-1) filedan application u/s. 156(3) Cr.P.C. on 19.11.1999 – FIR was recordedon 21.11.1999 – In the FIR, the informant alleged that he was toldby PW-3 and PW-2 that they had seen A-3 taking deceased boy ‘H’into her house on 08.10.1999 – PW-4 told him that on 09.10.1999at about 6 AM, he had seen ‘H’ standing along with A-1 and A-2 onthe road near Y’s sugarcane field – In the trial, the prosecutionrelied on the testimony of 12 witnesses – The trial court convictedthe appellants u/s. 302 IPC and sentenced them to life imprisonmentas well as 7 years u/s.364, IPC and imprisonment for 5 years u/s.201, IPC – The High court affirmed the trial court’s findings – Onappeal, held: The prosecution was not able to prove its case asthere were serious flaws in the testimonies of two sets of witnesses(PWs 2 & 3 and PW- 4 & 5) who deposed to seeing the deceasedwith A-3 and the first two accused, on 08.10.1999 and 09.10.1999,respectively – PW-1’s conduct, in not stating anything during inquestproceedings, despite being informed about seeing the boy in thecompany of A-3 on 08.10.1999, and later, on the early morning of09.10.1999, by PW-2, PW-3 and PW-4, undermines the prosecutionstory – In the present case, save the “last seen” theory; there is noother circumstance or evidence – The time gap between when thedeceased was seen in the company of the accused and the probabletime of his death, based on the post mortem report, is not narrow –Therefore, solely relying on the “last seen” circumstance to convictthe accused-appellants is unjustified.

Allowing the appeals, the Court

HELD: 1. The conviction is solely based on the testimoniesof two sets of witnesses, PW-4 and PW-5. PW-5 is a cousin of PW-

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A1, and his behaviour in not interceding upon seeing the 7-year-old crying boy in the company of the accused, away from his houseand despite knowing about the previous enmity between theparties, is unnatural. The police statement of PW-5 was recordedmore than two months after the start of investigation, and theapplication under Section 156(3) CrPC does not mention that heBhad witnessed the boy with the accused despite the witness’sstatement that he informed PW-1 about what he saw. [Para18][977-F-G; 978-B]

2. PW-4’s testimony that he saw the deceased in thecompany of first two appellants is unreliable, as him being aCresident of Akbarpur, went out to answer the call of nature at 6AM to another village as Y’s field was located at villageNarayanpur and returned home immediately, then, there is noexplanation how he knew that the accused were standing at aspecific spot. Besides this, it is unnatural and improbable thatDone as close a neighbour of PW-1 living 8-10 paces away wouldnot be aware that the boy went missing on 8.10.1999. [Para19][978-E-G]

3. There is no explanation why PW-1, despite being told byPW-2 and PW-3 that they had seen A-3 taking victim ‘H’ in herhouse holding his hand, did not mention the involvement of A-3Ein the inquest proceedings. PW-7, who is witness to inquest,deposed about the presence of PW-1 to PW-5 during the inquestrenders suspect the deposition of PW-2 and weakens thetestimony of PW-5, who claims to have left the village on 09-10-1999 and returned only on 12-10-1999. [Para 20][979-E-G]F

4. In circumstantial evidence cases, to sustain conviction,the panchsheel principles laid down in Sharad Birdichand Sardav. State of Maharashtra must be fulfilled. However, in presentcase, prosecution is not able to prove the case beyond reasonabledoubt. There are serious flaws in the testimonies of two sets ofGwitnesses (PW-2, PW-3 & PW-4, PW-5) who deposed to seeingthe deceased with A-3 and the first two accused (A-1 and A-2),on 08.10.1999 and 09.10.1999, respectively. There are flaws intheir testimonies regarding their presence at the place and timeand with respect to the knowledge of PW-1. PW-1’s conduct, innot stating anything during inquest proceedings, despite being H

informed about seeing the boy in the company of A-3 on08.10.1999, and later, on the early morning of 09.10.1999, by PW-2, PW-3 and PW-4, undermines the prosecution story. Theconduct of PW-4 and PW-5 in not taking any steps to ensure thesafety of the child despite knowing the previous enmity or grudgeon the part of the accused is unnatural. [Paras 21-22][980-C; 987-C-F]

Sarad Birdichand Sarda v. State of Maharashtra [1985]1 SCR 88– relied on.

6. The “last seen” doctrine has limited application, whereinthe time lag between the time the deceased was seen last withthe accused and the time of murder, is narrow; furthermore, thecourt should not convict an accused only on that basis. In thepresent case, save the “last seen” theory, there is no othercircumstance or evidence. The time gap between when thedeceased was seen in the company of the accused on 09-10-1999and the probable time of his death based on the post mortemreport is not narrow. Given this fact, and the seriousinconsistencies in the depositions of the witnesses, and the factthat the FIR was lodged almost 6 weeks after the incident, thesole reliance on the “last seen” circumstance to convict theaccused-appellants is not justified. [Paras 23, 25][981-H; 982-A;984-D-E]

Jaswant Gir v. State of Punjab (2005) 12 SCC 438;Rambraksh @ Jalim v. State of Chhattisgarh [2016] 2SCR 599;Nizam & Ors. v. State of Rajasthan[2015]10 SCR 786 – relied on.

Hanumant v. The State of Madhya Pradesh[1952] 1SCR 1091;Tanviben Pankajkumar Divetia v. State ofGujarat(1997) 7 SCC 1 – referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.972 of 2013.

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AFrom the Judgment and Order dated 05.10.2012 of the High Courtof Uttarakhand at Nainital in Criminal Appeal No.358 of 2004.

J. C. Gupta, Sr. Adv., Vikrant Singh Bais, Yogesh Tiwari, Advs.for the Appellants.

Vikas Negi, Sudarshan Singh Rawat, Sunny Sachin Rawat, Advs.Bfor the Respondent.

The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

1. The appellants were convicted under Sections 302 of the IndianPenal Code, 1860 (hereinafter “IPC”) and sentenced to life imprisonmentCas well as 7 years under Section 364, IPC and imprisonment for 5 yearsunder Section 201, IPC. Their conviction and sentence was upheld bythe Uttarakhand High Court.[1]

2. Haseen, aged about 7 years, was the son of Bisarat, (PW-1), aresident of Villageage Akbarpur. He went missing on 08.10.1999. OnD10.10.1999, at about 16:30, the dead body of Haseen was found in thesugarcane field of Yaqub in Village Narayanpur, situated at a distancefrom Akbarpur, Haseen’s village. Information was sent to the PoliceStation Manglor. Inquest proceedings were held by ASI Dalchand, PW-6. The post-mortem was conducted on 11.10.1999 by Dr. A.K. JainE(PW-9). According to his statement, death had occurred about two daysbefore the post-mortem examination.

3. PW-1, Bisarat moved an application under Section 156(3) Codeof Criminal Procedure (hereinafter “Cr. PC”) on 19.11.1999. Based onthe order of the magistrate concerned, the first information report (FIR)was recorded on 21.11.1999. In the FIR, the informant alleged that hisFson Haseen was missing since 3 PM on 08.10.1999 and that despitesearch, he could not be found. He went to PS Manglor on 10.10.1999 onthe day dead Haseen’s body was found. He also narrated about thepost-mortem examination on 11.10.1999. PW-1 stated that he was busyin making inquiries. He was told by Sayeed Ahmad (PW-3) and MuradGAli (PW-2) that they had seen A-3 Husn Jahan taking deceased boyHaseen into her house on 08.10.1999 at about 3.30 PM. Suleman (PW-4) told him that on 09.10.1999 at about 6 AM he had seen Haseen standingalong with A-1 Jabir and A-2 Jakir on the road near Yaqub’s sugarcanefiled. He (PW-1) immediately went to PS Manglor to lodge the report on1 By judgment and order dated 05.10.2012 in Crl. No. 358/2004H

the morning of 12.10.1999, but his report was not recorded. He thenmet S.P., Haridwar on the same day, but police did not interrogate himor his witnesses nor take any action against the accused persons. Basedon these allegations, the police investigated the incident, and during thecourse of those proceedings, arrested the accused- appellants.

4. After investigations were completed, the police, in their finalreport, alleged that the appellants were guilty of the offences. Chargeswere framed against them, by the court. The prosecution, to establishits allegations, relied on the testimony of 12 witnesses. The defence didnot examine any witness. Based on the materials placed before it, thetrial court convicted the appellants, who then appealed to the High Court.The impugned judgment affirmed the trial court’s findings.

Appellants’ contentions

5. It is argued, on behalf of the appellants, that the conviction andsentence imposed in this case, is unsustainable. It was argued that noreason was given why the FIR was lodged almost five weeks after thedeceased boy went missing and after his body was found on 10.10.1999.The complainant stated that on 12.10.1999, he was told by the witnessesthat on 8.10.1999, the third appellant, A-3 Husn Jahan, was seen takingthe child inside her house, and on 9.10.1999 at 6 AM, the child was seenalong with accused Jabir and Jakir. The application under section 156(3)Cr. P.C. was moved on 19.11.1999, i.e., after more than one month. Inthe mean-time no application was sent to any officer. There is noexplanation for a delay of more than a month.

6. It was urged that there is discrepancy in the testimonies ofvarious witnesses, particularly that of PW-1 (father of the deceased)and the others, particularly PW-4 and PW-5, as to whether the suspicionof the accused’s involvement was, in fact, reported within a couple ofdays after the boy’s body was found. Counsel especially highlightedthat the police witnesses did not support the version of PW-1 that hehad voiced suspicions contemporaneously. Further, it was submitted thatthe testimonies of witnesses were that the accused’s role was not knownto PW-1 and others on 10.10.1999, but this was not reflected in theinquest report.

7. Learned counsel submitted that the prosecution witnesses areuntrustworthy since they appear to have been added as after thoughts.It was submitted that the appellants’ consistent case was that they werenamed much after the incident, on account of enmity with the deceased A

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Afather’s family. It was pointed out that in the testimony of the first IO,(PW-8) that PW-2 did not mention about the role and involvement of A-3 and that she was with the deceased on 8[th] October, 1999. Further, thatwitness (PW-8) also testified that the villagers had initially suspectedSaleem and Mansoor, and not the present accused.

B8. Learned counsel highlighted that P-4 and PW-5 are whollyunreliable witnesses. In fact, the police statement of PW-4 was recordedmuch after the incident in December, 1999. This witness, as indeed PW-5, were introduced to somehow implicate the first two appellants (A-1and A-2) since there was no other witness who supported the prosecutionwith respect to their alleged involvement or presence. The idea ofCintroducing them was to link them with the deceased. It was submittedthat PW-4’s testimony was unreliable, because he recorded his policestatement after two months, and as per his admission, though he hadseen the deceased in the first two appellants’ company and informedPW-1 about this as early as on 12.10.1999. Likewise, PW-5 deposedDhaving informed PW-1 on 12.10.1999 about witnessing the boy in thecompany of the first two appellants on (09.10.1999). No explanationwas given by the prosecution why he was examined so late. Furthermore,the deceased’s father, PW-1, did not mention having been told about theinvolvement of the first two appellants by PW-5 in his written complaint.

9. It is argued that the “last seen” theory is, on the face of it, anEafter- thought and concocted in as much as PW7 Mansab stated beforethe court that PW2 Murad Ali, Sayeed Ahmad PW3, and PW4 Suleman,who all were closely related to the deceased child, were present at thetime of inquest proceedings held on 10.10.1999, yet they for the reasonsbest known to them kept silent for 2 days and for the first time informedFBisarat PW1, only on 12.10.1999. Yet, that witness PW-1 did not mentionthese facts in his written version.

10. It was contended that all prosecution witnesses were of thesame family, as complainant Bisarat PW1 is the nephew of Murad AliPW2; Sayeed Ahmad (PW-3) is son of Sharif, PW-1’s cousin, and PW4GSuleman as well as PW5 Munfaid too belonged to PW-1’s family. It wasurged that there was reason for the witnesses to cook up a false storyagainst the appellants because in the year 1996, Munfaid, father of theappellants had lodged an FIR against Murad Ali (PW-2), Phurkan andShamshad under Section 307, 452, 504, 506 IPC and they wereprosecuted. This clearly established their motive to falsely implicate theHappellants.

11. Counsel highlighted that according to Mansab’s (PW-7)deposition (who was a witness to establish the Inquest Report) Munfaid,Sayeed, and Murad Ali were also present at the time of inquest. It isunimaginable that had they seen the deceased in the company of accusedpersons, they would not disclose the same even after seeing the deadbody of their kith and kin. This incongruity went to the root of theircredibility, falsifying the prosecution version.

12. Learned counsel relied on Hanumant vs. The State of MadhyaPradesh,[2] Sharad Birdhi Chand Sarda vs. State of Maharashtra,[3]and Tanviben Pankajkumar Divetia vs. State of Gujarat[4]to contendthat in circumstantial evidence-based cases, each incriminatingcircumstance must be clearly established by reliable and clinchingevidence and the circumstances proved must form a chain of eventsfrom which the irresistible conclusion of the accused’s guilt can be safelydrawn; no other hypothesis is possible. It was submitted that this courthas cautioned that in a case depending upon circumstantial evidence,there is a danger that conjecture or suspicion may take the place of legalproof. The Court must satisfy itself that various circumstances in thechain of events have been established clearly, and such a completedchain of events must be such as to rule out a reasonable likelihood of theinnocence of the accused. It has also been indicated that when theimportant link goes, the chain of circumstances gets snapped, and theother circumstances cannot, in any manner, establish the guilt of theaccused beyond all reasonable doubts. Counsel also stated that this courthas to be watchful and avoid the danger of allowing the suspicion to takethe place of legal proof for sometimes, unconsciously it may happen tobe a short step between moral certainty and legal proof. It has beenindicated by this court that there is a long mental distance between “maybe true” and “must be true” and the same divides conjectures from sureconclusions. It was contended that in the present case, the prosecutionwas unable to prove beyond reasonable doubt, every circumstance, andthe courts below erred in treating suspicion as proof, leading to theappellants’ conviction.

State/Prosecution’s contentions

13. Learned counsel appearing on behalf of the state argued thatthis court should not disturb the concurrent findings of the trial court and 2 1952 (1) SCR 10913 1985 (1) SCR 884 1997 (7) SCC 156

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Athe High Court. He first dealt with the issue of delayed lodging of theFIR and relied on the trial court’s reasoning, as well as the testimony ofPW-1. He argued that when the deceased went missing, there was nothingunnatural on the part of PW-1, his father, in not reporting the absenceimmediately and instead searching for him. It was only when he wasinformed that the dead body was found, that he approached the police;Bthe post mortem corroborated that the boy died due to shock on accountof injuries caused due to violence and injuries caused on his person.Learned counsel submitted that all the eyewitnesses who deposed tohaving seen A-1 to A-3, clearly stated that they had seen the boy in thecompany of the said appellants. Therefore, the last seen theory wasCcorrectly applied. Furthermore, PW-1 in fact, sought to complain to thepolice, but without avail. Eventually, he approached the magistrate underSection 156 (3) Cr. PC, which was allowed.

14. It was also submitted that the cumulative effect of thedepositions of PW- 4 and PW-5 was that the deceased boy was seenlast, in the company of the first two accused, early morning near theDplace where his body was discovered subsequently. Given that the reportof this was made immediately after discovery of the body, on 10.10.1999,the informant could not be faulted for not taking prompt action. Theinquest, which was held the next day, also concluded that death occurredunder suspicious circumstances, having regard to the nature of injuriesEon the deceased’s body.

15. It was submitted that the trial court and the High Court bothcorrectly inferred that the informant’s complaint was not entertained bythe police, and he could not become a victim of that inaction. Investigationsthat took place after 21.11.1999, no doubt resulted in statements of somewitnesses, but the investigation was not conducted satisfactorily.FTherefore, it was directed to be taken over by PW-12, after which itwas conducted properly and a charge sheet accusing all the appellantswas filed. Counsel for the state relied on the testimonies of PWs 2 and3 to contend that they had deposed convincingly that the third appellantwas last seen holding the deceased boy’s hands on 8.10.1999. PWs 4Gand 5 deposed to having seen the deceased boy the next day, earlymorning, in the company of the first two appellants. These facts,conclusively established the appellants’ guilt.

Analysis and Findings

16. As may be gathered from the previous discussion, that theHconcurrent conviction of the appellants rests entirely on the “last seen”

theory, upheld by the courts below. The deceased- it has been held, wasseen by PW-2 and PW-3 with the third appellant, Husn Jahan, on theafternoon of 8[th] October, 1999; she was holding his hand. The boy wentmissing; his father, PW-1, and other family members searched for him.No report was lodged at that time, and the search continued. The boy’sbody was discovered, partly buried, on 10[th] October, in an open agriculturalfield, in another village (Narayanpur). Post mortem was conducted thenext day, i.e., on 11[th] October, 1999; the inquest proceedings too wereheld that day. PW-1 stated that he attempted to lodge an FIR on 12[th]October, 1999, against the present appellants, but without success. TheFIR was eventually lodged, pursuant to an order under Section 156 (3)Cr. PC. upon an application dated 19.11.1999. Investigations wereconducted by PW-8 and, later, from 2.12.1999, by PW-12. The appellantswere arrested and charged for the offences, and later convicted.

17. The testimonies of PW-2 and PW-3 were relied upon to provethat Husn Jahan, the third appellant and sister of the first two appellants,was seen in the company of the deceased on 8[th] October, 1999 at 3:30p.m. PW-2 claims to have informed this to PW-1 on 10-10-1999 at 12:00p.m., before the deceased’s body was found (i.e., at 01:00 p.m.). On theother hand, PW-3, who claimed to have witnessed Husn Jahan holdingthe deceased’s hand on 8.10.1999, informed PW- 1 about noticing thison 12.10.1999, (since he had gone to visit his son to Bijnor, during theintervening period). The other circumstance is that the boy was seenlast, in the company of the first two appellants, by PWs-4 and 5.

18. For the moment, if the delay in recording the FIR (which is 42days) is ignored, the salient fact which stares at one’s face is that theconviction is solely based on the testimonies of these two sets of witnesses.PW-4 Sulaiman deposed to having seen the deceased with the saidappellants, early morning on 09.10.1999. He claims to having informedthe boy’s father, PW-1 about this fact, after discovery of the body, on12.10.1999. PW-5’s deposition seeks to corroborate that of PW-4. Thiswitness also claimed to having seen the boy on the morning of 09.10.1999.However, intriguingly, despite noticing him in the company of two accusedand despite having heard a cry from the boy, this witness did not lookback. In terms of his admission, PW-5 is a cousin of PW-1. Therefore,his behavior in not interceding upon seeing the boy in the company of theaccused, early morning, away from his house – given that the boy wasonly 7 years, is unnatural. It is also unnatural that since the prosecution-and PW-1’s allegation is that the accused had a previous enmity with AB

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Ahim, PW-5, a close relative, was neither surprised nor did anything tointervene when he saw the boy in the company of the first two appellants.Another important aspect is that the police statement of PW-5 wasrecorded more than two months after the start of investigation; even theapplication under Section 156 (3) Cr. PC does not mention that he hadwitnessed the boy with the accused despite the witness’s statement thatBhe informed PW-1, the boy’s father on 12.10.1999 about what he sawon 9.10.1999.

19. PW-4 Sulaiman deposed that his house was 8-10 paces to thenorth of Bisarat’s house, and that he was in his house the whole of thenight of 8[th] October, 1999. He also deposed to going out in the morningCof 09-10-1999 to answer the call of nature, at around 6 AM when henoticed that the deceased was with Jakir and Jabir, the first twoappellants. In cross examination, he admitted to not going out of hishouse on 9[th] October, 1999. He also deposed to having not been in thevillage when the boy’s body was found. Interestingly, in his crossDexamination, he stated that:

“I did not show the place to the IO at which the accusedJabir and Jakir were standing with Haseen, on the otherhand I told to the IO that the accused were standing in thefield of Yaqoob with Haseen. The accused Jabir and Jakirwere standing in the northern side of the field of the fieldEof Yaqoob.”

This statement renders PW-4’s testimony unreliable, becauseYaqoob’s field was located at Narayanpur. PW-4 was a resident ofAkbarpur; if he went out to answer the call of nature, at 6 AM or so inthe morning, and returned home immediately, there is no explanationFhow he knew that the accused were standing at a specific spot, in anothervillage, Narayanpur, with the deceased. Besides this glaring discrepancy,it is unnatural and improbable, that one as close a neighbour of PW-1living 8-10 paces away would not be aware that the boy went missing on8[th] October, 1999. In fact, the improbability of the witness’s ignoranceGof the fact (that Haseen was missing) is evident, if one considers thetestimony of PW-1 who deposed:

“Firstly, we searched him in the village, we also got madeproclamation on the same day in the evening.”

20. PW-2 Murad Ali’s father was the brother PW-1 Bisarat.HLikewise, Sayed, PW3 is also related; he is PW-1’s second cousin, and like him, similarly related to PW-2. In his testimony, PW-2 deposed hehad seen the boy with Husn Jahan, the third accused. He also statedthat the dead body was found at about 1 PM and “I told the Bisarat on that very day when the dead body ofHaseen was found that perhaps Husn Jehan has kidnappedthe child.”

He further deposed to telling Bisarat “at about 12 in the noon”that he saw Husn Jehan taking Haseen in her house holding his hand.He again deposed that:

“I told this fact to Bisarat at the place where the deadbody was found. I told this fact to Bisarat 2-4 minutesbefore the arrival of the police. When the police came nearthe dead body of Haseen, then I did not tell the policeregarding the fact that I saw Husn Jehan taking Haseenholding his hand. I told to the police that “that I hadsuspicion that perhaps the child Haseen has beendisappeared. I cannot tender any explanation if this factis not written in my statement.

If these facts are true, there is no explanation why PW-1 (as wellas other witnesses, such as PW-2, and PW-3) did not mention about theinvolvement of Husn Jahan, at least in the inquest proceedings. PW-7Mansab, deposed that many family members of PW-1, as well as he,were present during the inquest proceedings:

“At the time when the inquest was being prepared manypersons of the village were collected there. At that time thecomplainant of the case Bisarat, Suleman s/o Bashir Jhoja,Munfait s/o Mohd. Ali, Sayeed s/o Sharif and Murad Ali s/o Ali Hasan were also present.”

PW-7’s testimony, (about the presence of PW-1 to PW-5 duringthe inquest) not only renders suspect the deposition of PW-2, but alsofatally weakens the testimony of PW-5 who claims to have left the village,on 09-10-1999 and returned only on 12-10-1999. This aspect assumesimportance, because PW-7 was not declared hostile, and he is a witnessto the inquest proceedings.

21. A basic principle of criminal jurisprudence is that incircumstantial evidence cases, the prosecution is obliged to prove eachcircumstance, beyond reasonable doubt, as well the as the links between A

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Aall circumstances; such circumstances, taken cumulatively, should forma chain so complete that there is no escape from the conclusion thatwithin all human probability, the crime was committed by the accusedand none else; further, the facts so proved should unerringly point towardsthe guilt of the accused. The circumstantial evidence, in order to sustainconviction, must be complete and incapable of explanation of any otherBhypothesis than that of the guilt of the accused, and such evidence shouldnot only be consistent with the guilt of the accused but should beinconsistent with his innocence.[5] These were so stated in SaradBirdichand Sarda (supra) where the court, after quoting fromHanumant, observed that:C“153. A close analysis of this decision would show that thefollowing conditions must be fulfilled before a case againstan Accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is tobe drawn should be fully established.

DIt may be noted here that this Court indicated that thecircumstances concerned ‘must or should’ and not ‘may be’established. There is not only a grammatical but a legaldistinction between ‘may be proved’ and “must be or shouldbe proved” as was held by this Court in Shivaji SahabraoEBobade v. State of Maharashtra (1973) 2 SCC 793 where thefollowing observations were made: [SCC para 19, p. 807:SCC (Cri.) p. 1047]

Certainly, it is a primary principle that the Accused must beand not merely may be guilty before a court can convict andthe mental distance between ‘may be’ and ‘must be’ is longFand divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with thehypothesis of the guilt of the Accused, that is to say, theyshould not be explainable on any other hypothesis exceptthat the Accused is guilty,G(3) the circumstances should be of a conclusive nature andtendency,

(4) they should exclude every possible hypothesis except theone to be proved, and

(5) there must be a chain of evidence so complete as not toleave any reasonable ground for the conclusion consistentwith the innocence of the Accused and must show that in allhuman probability the act must have been done by theAccused.”

154. These five golden principles, if we may say so, constitutethe panchsheel of the proof of a case based on circumstantialevidence.”

These panchsheel precepts, so to say, are now fundamental rules,iterated time and again, and require adherence not only for theirprecedential weight, but as the only safe bases upon which conviction incircumstantial evidence cases can soundly rest.

22. This court is of the opinion that given the testimonies of twosets of witnesses (PWs2 &3 and PW-4 &5) who deposed to seeing thedeceased with Husn Jahan and the first two accused, on 8[th] October1999 and 9[th] October 1999, respectively, and also given the serious flawsin their testimonies, with respect to the knowledge of PW-1, the flaws intheir testimonies regarding their presence at the place and time, deposedto by them, as well as other glaring inconsistencies, the prosecution cannotbe said to have proved its case. If benefit were to be given to PW-1’sstatement, and he were to be believed that the police did not take anyaction, till he applied under Section 156 (3) his conduct, in not statinganything during inquest proceedings, despite being informed about thefacts, by PW-2, PW-3 and PW-4, that about seeing the boy in the companyof A- 3 Husn Jahan, on 08-10-1999, and later, on the early morning of09-10-1999, undermines the prosecution story. Likewise, if the prosecutionversion that there was a previous enmity or grudge on the part of theaccused, which constituted a motive to kill the child, is correct, the conductof PW-4 and PW-5 in not taking any steps to ensure the safety of thechild, when they saw him in the company of the accused, is unnatural.This is more so, because PW-5 is admittedly related to PW-1. Asdiscussed previously, the testimony of PW-5 with respect to thecircumstances under which he saw the deceased early morning of 09-10-1999, renders it untrustworthy and unbelieved.

23. This court is also of the opinion that apart from the aboveserious infirmities, there is no evidence, oral or any material object, whichconnects the appellant-accused with the crime. It has been repeatedlyemphasized by this court, that the “last seen” doctrine has limitedapplication, where the time lag between the time the deceased was seen A

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Alast with the accused, and the time of murder, is narrow; furthermore,the court should not convict an accused only on the basis of the “lastseen” circumstance. In Jaswant Gir vs. State of Punjab,[6]this courtexplained the soundness of such a rule:

“Without probing further into the correctness of the “last-seen” version emanating from P.W. 14’s evidence, evenBassuming that the deceased did accompany the accused intheir vehicle, this circumstance by itself does not lead to theirresistible conclusion that the Appellant and his companionhad killed him and thrown the dead body in the culvert. Itcannot be presumed that the Appellant and his companionsCwere responsible for the murder, though grave suspicion arisesagainst the accused. There is considerable time-gap betweenthe deceased boarding the vehicle of the Appellant and thetime when P.W. 11 found the dead body. In the absence ofany other links in the chain of circumstantial evidence it isnot possible to convict the Appellant solely on the basis ofDthe “last-seen” evidence, even if the version of P.W. 14 in thisregard is believed. In view of this, the evidence of P.W. 9 asregards the alleged confession made to him by the Appellantassumes importance.

24. Recently, in Rambraksh vs. State of Chhattisgarh,[7]this courtEafter reviewing previous decisions, stated as follows:

“10. It is trite law that a conviction cannot be recorded againstthe accused merely on the ground that the accused was lastseen with the deceased. In other words, a conviction cannotbe based on the only circumstance of last seen together.Normally, last seen theory comes into play where the time gap,Fbetween the point of time when the accused and the deceasedwere seen last alive and when the deceased is found dead, isso small that possibility of any person other than the accusedbeing the perpetrator of the crime becomes impossible. Torecord a conviction, the last seen together itself would not beGsufficient and the prosecution has to complete the chain ofcircumstances to bring home the guilt of the accused.

11. In a similar fact situation this Court in the case of Krishnanv. State of Tamil (2014) 12 SCC 279, held as follows:

6 2005(12) SCC438H7 2016 (12) SCC 251

JABIR & ORS. v. THE STATE OF UTTARAKHAND[S. RAVINDRA BHAT, J.]

21. The conviction cannot be based only on circumstance oflast seen together with the deceased. In Arjun Marik v. Stateof Bihar (1994) Supp (2) SCC 372)

“31. Thus the evidence that the Appellant had gone to Sitaramin the evening of 19-7-1985 and had stayed in the night atthe house of deceased Sitaram is very shaky and inconclusive.Even if it is accepted that they were there it would at bestamount to be the evidence of the Appellants having been seenlast together with the deceased. But it is settled law that theonly circumstance of last seen will not complete the chain ofcircumstances to record the finding that it is consistent onlywith the hypothesis of the guilt of the accused and, therefore,no conviction on that basis alone can be founded.”

22. This Court in Bodhraj v. State of (2002) 8 SCC 45) heldthat:

“31. The last seen theory comes into play where the time gapbetween the point of time when the accused and the deceasedwere last seen alive and when the deceased is found dead isso small that possibility of any person other than the accusedbeing the author of the crime becomes impossible.”

It will be hazardous to come to a conclusion of guilt in caseswhere there is no other positive evidence to conclude that theaccused and the deceased were last seen together.

23. There is unexplained delay of six days in lodging the FIR.As per prosecution story the deceased Manikandan was lastseen on 4-4-2004 at Vadakkumelur Village during PanguniUthiram Festival at Mariyamman Temple. The body of thedeceased was taken from the borewell by the fire servicepersonnel after more than seven days. There is no otherpositive material on record to show that the deceased waslast seen together with the accused and in the interveningperiod of seven days there was nobody in contact with thedeceased.

24. In Jaswant Gir v. State of Punjab (2005) 12 SCC 438),this Court held that in the absence of any other links in thechain of circumstantial evidence, the Appellant cannot beconvicted solely on the basis of “last seen together” even ifversion of the prosecution witness in this regard is believed.”

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[2023] 1 S.C.R.

AAgain, in Nizam & Ors. v State of Rajasthan,[8]it was held asfollows:

“Courts below convicted the Appellants on the evidence ofPWs 1 and 2 that deceased was last seen alive with theAppellants on 23.01.2001. Undoubtedly, “last seen theory”Bis an important link in the chain of circumstances that wouldpoint towards the guilt of the accused with some certainty.The “last seen theory” holds the courts to shift the burden ofproof to the accused and the accused to offer a reasonableexplanation as to the cause of death of the deceased. It iswell-settled by this Court that it is not prudent to base theCconviction solely on “last seen theory”. “Last seen theory”should be applied taking into consideration the case of theprosecution in its entirety and keeping in mind thecircumstances that precede and follow the point of being solast seen.”

D25.In the present case, save the “last seen” theory, there is noother circumstance or evidence. Importantly, the time gap between whenthe deceased was seen in the company of the accused on 09-10-1999and the probable time of his death, based on the post mortem report,which was conducted two days later, but was silent about the probabletime of death, though it stated that death occurred approximately twoEdays before the post mortem, is not narrow. Given this fact, and theserious inconsistencies in the depositions of the witnesses, as well as thefact that the FIR was lodged almost 6 weeks after the incident, the solereliance on the “last seen” circumstance (even if it were to be assumedto have been proved) to convict the accused-appellants is not justified.F26.For the above reasons, the conviction and sentence of theappellant- accused cannot be sustained. The impugned judgment is herebyset aside; the appellants shall be released forthwith unless required inany other case. The appeal is allowed, but without order on costs.

Ankit GyanG(Assisted by : Veda Singh, LCRA)

Appeal allowed.

H8 2016 (1) SCC 550