CHANDRAPAL versus STATE OF CHHATTISGARH (EARLIER M.P.) on 27 May 2022

366

SUPREME COURT REPORTS

[2022] 3 S.C.R.

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CHANDRAPAL

v.

STATE OF CHHATTISGARH (EARLIER M.P.)

(Criminal Appeal No. 378 of 2015)

BMAY 27, 2022

[DR. DHANANJAYA Y CHANDRACHUD ANDBELA M. TRIVEDI, JJ.]

Penal Code, 1860: ss. 302 and 201/34 – Murder – Prosecutioncase that a girl and a boy having a love affair went missing and tenCdays later their dead bodies found hanging on the tree indecomposed state – Allegations of murder against the appellant-accused and other co-accused – Conviction u/ss. 302/34 and 201/34 and sentenced accordingly – In appeal, the High Court upheldthe order of conviction and sentence as regards the appellant,Dhowever, set aside the conviction of co-accused u/s. 302/34, butupheld for the offence u/s. 201/34 – On appeal, held: If the evidenceof prosecution falls short of proof of homicidal death of thedeceased, and if the possibility of suicidal death could not be ruledout, the appellant could not have been convicted merely on the basisof the theory of “last seen together” –Having regard to the totalityEof evidence on record, the High Court erred in convicting theappellant for the alleged charge u/s. 302/34, relying upon a veryweak kind of evidence of extra judicial confession allegedly madeby the co-accused, and relying upon the theory of “last seentogether” propounded by the prosecution witness – Also, no evidenceFas to how and by whom the deceased girl was allegedly murdered,was produced by the prosecution – Thus, the prosecution failed toprove the charges levelled against the appellant beyond reasonabledoubt – Suspicion howsoever, strong cannot take place of proof –Appellant acquitted from the charges levelled against him – Evidence–Extra judicial confession – Last seen theory.G

Evidence: Extra-judicial confession – Evidentiary value –Held: Extra-judicial confession is a weak kind of evidence – Unlessit inspires confidence or is fully corroborated by some other evidenceof clinching nature, ordinarily conviction for offence of murdershould not be made only on the basis of extra-judicial confession –

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Extra-judicial confession made by the co-accused can be admittedin evidence only as a corroborative piece of evidence.

Allowing the appeal, the Court

HELD: 1.1 It may be stated that undisputedly the entirecase of the prosecution rested on the circumstantial evidence,as there was no eye witness to the alleged incident. In order toconvict an accused under Section 302 IPC, the court is requiredto first see as to whether the prosecution has proved the factumof homicidal death. The evidence of PW-13 doctor, who hadcarried out the post-mortem of the two deceased, would be mostrelevant in this regard. He had stated in his deposition beforethe court, inter alia, that on 12.12.1994, he had carried out thepost-mortem of the two deceased. The dead bodies of both thedeceased were in decomposed state; that the knot mark presenton the neck of the deceased B was ante-mortem; that the causeof death appeared to be Asphyxia due to hanging; and that thedeath had taken place within 8 to 10 days and the nature of deathwas Suicidal. The said Doctor had stated similar facts for K. Hecould not express any opinion whether it was a homicidal death.In the cross- examination by counsel for the accused, he hadcategorically admitted that he did not find any symptom ofhomicidal death, nor he had opined in his report given on12.12.1994 that the deaths of the deceased were homicidal. Ofcourse, he had stated that on the basis of the report submittedon 30.04.1995, an inference could be drawn that the deaths couldbe homicidal deaths. [Para 7, 8][374-C; 375-E-G; 376-B-C]

1.2 The High Court in the impugned judgment did notconsider at all the evidence of doctor to come to the conclusionwhether the deaths were homicidal deaths, before confirming theconviction of the appellant for the offence under Section 302 IPC.Unfortunately, the Sessions Court also observed that thestatement of doctor was not important because he had expressedan opinion which was neither beneficial to the prosecution nor tothe defence. When the case of the prosecution rested oncircumstantial evidence, it was imperative for the prosecution toprove beyond reasonable doubt that the deaths of the deceasedwere homicidal deaths and not suicidal, more particularly whenthe line of defence of the accused was that the B and K had B

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Acommitted suicide, and when doctor who had carried out theirpost-mortems had also opined that the nature of their deaths wasSuicidal. [Para 9][376-C-F]

1.3 As per Section 30 of the Evidence Act, when morepersons than one are being tried jointly for the same offence, andBa confession made by one of such persons affecting himself andsome other of such persons is proved, the court may take intoconsideration such confession as against such other person aswell as against the person who makes such confession. However,an extra judicial confession is a weak kind of evidence and unlessit inspires confidence or is fully corroborated by some otherCevidence of clinching nature, ordinarily conviction for the offenceof murder should not be made only on the evidence of extra judicialconfession. The extra judicial confession made by the co- accusedcould be admitted in evidence only as a corroborative piece ofevidence. In absence of any substantive evidence against theDaccused, the extra judicial confession allegedly made by the co-accused loses its significance and there cannot be any convictionbased on such extra judicial confession of the co-accused.[Para 11][377-A-D]

State of M.P. Through CBI & Ors. Vs. Paltan Mallah &EOrs. (2005) 3 SCC 169 : [2005] (1) SCR 710;Sahadevan & Anr. Vs. State of Tamil Nadu (2012) 6SCC 403 : [2012] (4) SCR 366; Jagroop Singh Vs.State of Punjab (2012) 11 SCC 768 : [2012] (7) SCR91; S.K. Yusuf Vs. State of West Bengal (2011) 11 SCC754 : [2011] (8) SCR 83; Pancho Vs. State of HaryanaF(2011) 10 SCC 165 : [2011] (12) SCR 1173 – referredto.

1.4 In the instant case, it is true that the co- accused V hadallegedly made self-inculpatory extra judicial confession beforethe PW-4, and had made extra judicial confession before the otherGwitnesses i.e., PW-5, PW-6 and PW-7 stating, inter alia, that theother three accused had committed the murder and he-V wasasked to assist them in disposing the dead bodies and concealingthe evidence. Though the Sessions Court relying upon the saidevidence of extra judicial confession of V convicted all the fourHaccused, however, the High Court, considering the inconsistency between the said two extra judicial confession made by the co-accused V, acquitted the three accused i.e., B, M and V from thecharges levelled against them, however considered the said extrajudicial confession made by V as an incriminating circumstanceagainst the appellant C for convicting him for the offences chargedagainst him. If such weak piece of evidence of the co-accused Vwas not duly proved or found trustworthy for holding the otherco-accused guilty of committing murder of the deceased B andK, the High Court could not have used the said evidence againstthe present appellant for the purpose of holding him guilty forthe alleged offence. [Para 12][378-B-F]

1.5 As per the case of prosecution, PW-1 had seen theaccused C calling the deceased K and taking him inside his houseon the fateful night. Apart from the fact that the said D had notstated about the time or date when he had lastly seen K with C,even assuming that he had seen C calling K at his house when hewas sitting at the premises of village panchayat, the said eventhad taken place ten days prior to the day when the dead bodies ofthe deceased were found. The time gap between the two incidents-the day when D saw C calling K at his house and the day K’s deadbody was found being quite big, it is difficult to connect theappellant with the alleged crime, more particularly when there isno other clinching and cogent evidence produced by theprosecution. [Para 13][378-F-H; 379-A]

1.6 In order to convict an accused under Section 302 IPCthe first and foremost aspect to be proved by prosecution is thefactum of homicidal death. If the evidence of prosecution fallsshort of proof of homicidal death of the deceased, and if thepossibility of suicidal death could not be ruled out, in the opinionof this court, the appellant- accused could not have beenconvicted merely on the basis of the theory of “Last seentogether”. [Para 18][379-F-G]

1.7 Having regard to the totality of evidence on record, theHigh Court committed gross error in convicting the appellant-accused for the alleged charge of 302 read with 34 of IPC, relyingupon a very weak kind of evidence of extra judicial confessionallegedly made by the co-accused V, and relying upon the theoryof “Last seen together” propounded by the PW-1. It is also AB

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Asignificant to note that no evidence worth the name as to howand by whom the deceased B was allegedly murdered wasproduced by the prosecution. Under the circumstances, it isrequired to be held that the prosecution had miserably failed tobring home the charges levelled against the appellant-accusedbeyond reasonable doubt. The suspicion howsoever strong cannotBtake place of proof.The appellant is acquitted from the chargeslevelled against him. [Paras 19, 20][379-G; 380-A-C]

Shivaji Sahabrao Bobade & Anr. Vs. State ofMaharashtra (1973) 2 SCC 793 : [1974] (1) SCR 489;Sharad Birdhichand Sarda Vs. State of MaharashtraC(1984) 4 SCC 116 : [1985] (1) SCR 88; Bodhraj &Ors. Vs. State of Jammu and Kashmir (2002) 8 SCC 45: [2002] (2) Suppl. SCR 67; Jaswant Gir Vs. State ofPunjab (2005) 12 SCC 438; Arjun Marik & Ors. Vs.State of Bihar 1994 Supp (2) SCC 372 : [1994] (2)DSCR 265 – referred to.

From the Judgment and Order dated 25.03.2014 of the High Courtof Chhattisgarh at Bilaspur in Criminal Appeal No.1812 of 1998.

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Akshat Shrivastava, Ms. Pooja Shrivastava, Satvik Mathur, Advs.for the Appellant.

Sourav Roy, Dy AG, Mahesh Kumar, Kaushal Sharma, Ms. DevikaKhanna, Mrs. V. D. Khanna, Advs. for the Respondent.

The Judgment of the Court was delivered by BELA M. TRIVEDI, J.

1. The instant appeal is directed against the judgment and orderof conviction and sentence passed by the High Court of Chhattisgarh atBilaspur in Criminal Appeal No. 1812 of 1998.

2. As per the case of prosecution, the deceased Kumari Brindabaiwas the daughter of Bhagirathi Kumhar who belonged to the casteKumhar. The deceased Kanhaiya Siddar was the resident of villagePanjhar and belonged to the caste Siddar (Gaur). There was a loveaffair going on between Kumari Brindabai and Kanhaiya Siddar, whichthe said Bhagirathi and his brother Chandrapal did not approve. On02.12.1994, both Kumari Brinda and Kanhaiya went missing. A searchwas made, however, no missing report was lodged. On 11.12.1994, atabout 09:00 am, Lodhu (PW-2) went to Kajubadi (Cashew Nursery)and saw that the dead bodies of the deceased Kumari Brinda andKanhaiya were hanging on a cashew tree. He therefore came back andinformed the Sarpanch Baran Singh Thakur. Their bodies were indecomposed state and were not identifiable, however the informantChandrapal identified the dead bodies. Thereafter, Merg intimations werelodged by Chandrapal and Bholasingh (PW-4) at about 16:00 hrs. and16:05 hrs. on 11.12.1994, which were registered at no. 67/94 and 68/94respectively. The dead bodies were sent for postmortem. In thepostmortem report of the deceased Kumari Brinda (Ex. P/22), conductedby Dr. R.K. Singh (PW-13), it was opined that the ligature mark overher neck was antemortem in nature, and the cause of death appeared tobe Asphyxia due to hanging. In the postmortem report (Ex. P/23) of thedeceased Kanhaiya also, it was opined that the cause of death appearedto be Asphyxia due to hanging. In both the postmortem reports, it wasstated that the death had occurred within 8 to 10 days and the nature ofthe death was suicidal. As per the further case of the prosecution, on02.12.1994, the deceased Kanhaiya was sitting at the premises of villagePanchayat, where some TV programme was going on. He, thereafter,left the said place and went to the hand pump for rubbing his axe A

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A(gandasu). At that time the accused Chandrapal called Kanhaiya andtook him to his house, shut him down in the room and all the accused i.e.,Bhagirathi, Chandrapal, Mangal Singh and Videshi in furtherance of theircommon intention pressed his neck and committed his murder. Thereafter,the accused Mangal Singh and Videshi committed the murder of KumariBrinda. After committing their murders, they kept the dead bodies ofBKanhaiya and Brinda in the house upto 04.12.1994 and then took thedead bodies to Kajubadi. The accused thereafter hanged the dead bodiesof both the deceased by tying the noose in their necks with the tree ofcashew in the Kajubadi and attempted to give it the shape of their havingcommitted suicide.C

3. The Sessions Court framed the charge against the four accusedi.e., Bhagirathi, Chandrapal, Mangal Singh and Videshi, for the offenceunder section 302, in the alternative under section 302 read with section34 of IPC. Each of the accused was also separately charged for theoffence under section 201 read with section 34 of IPC, as also for theDoffence under section 3(2)(v) of the Schedule Caste and Schedule Tribe(Prevention of Atrocities), Act, 1989. The prosecution to bring home thecharges levelled against the accused had examined 16 witnesses andalso adduced documentary evidence. The First Additional Sessions Judge,Raipur (Chhattisgarh), after the appreciation of the evidence on record,vide the judgement and order dated 03.08.1998, acquitted all the accusedEfrom the charges levelled against them under section 3(2)(v) of the SCST Act, however, found them guilty of the offences under section 302and 201 read with section 34 of IPC. They all were sentenced toimprisonment for life for the offence under section 302 read with section34 of IPC, and were directed to undergo rigorous imprisonment for aFperiod of two years for the offence under section 201 read with section34 of IPC.

4. Being aggrieved by the judgement and order passed by theSessions Court, the accused Bhagirathi, Chandrapal and Mangal Singhpreferred an appeal being the Criminal Appeal No. 1812 of 1998 and theGaccused Videshi preferred an appeal being Criminal Appeal No. 2005 of1998 before the High Court of Chhattisgarh at Bilaspur. The High Courtvide the impugned judgement and order, confirmed the conviction andsentence imposed on the accused no. 2 Chandrapal for the offence undersection 302 read with section 34, and under section 201 read with section34 of IPC and accordingly dismissed the Criminal Appeal No. 1812 ofH

1998 qua the said accused Chandrapal. However, the High Court setaside the conviction and sentence imposed on the accused BhagirathiKumhar, Mangal Singh and Videshi for the offence under section 302read with section 34 of IPC, nonetheless confirmed their conviction forthe offence under section 201 read with section 34 of IPC, and sentencedall of them to the period already undergone by them. Accordingly, theCriminal Appeal No. 1812 of 1998 and 2005 of 1998 stood partly allowed.The present appellant-accused Chandrapal being aggrieved by the saidjudgement and order passed by the High Court has preferred the presentappeal.

5. The learned counsel Mr. Akshat Shrivastava appearing for theappellant taking the Court to the evidence of the witnesses examined bythe prosecution, more particularly of PW-2, PW-4, PW-5 and PW-6,submitted that there were major contradictions in their evidence asregards the alleged extra judicial confession made by the accused Videshibefore them. Relying upon various decisions of this Court, he submittedthat conviction cannot be based on the extra judicial confession made bythe co-accused, which is of a very weak kind of evidence. Repelling thetheory of ‘Last seen theory’, he submitted that the statement of PW1Dhansingh who had allegedly last seen Kanhaiya, having been called bythe present appellant, was recorded after 4 months of the incident. Evenas per the case of the prosecution, the said incident of calling Kanhaiyaby the appellant was 10 days prior to the date on which the dead bodieswere found in the Kajubadi, and there being long time gap between theday the deceased was allegedly last seen with the appellant and the daywhen his dead body was found, it was very risky to convict the appellantsolely on such evidence. He further submitted that the doctor who hadperformed the postmortem had also opined that the cause of death wasasphyxia as a result of hanging and the nature was suicidal. Thus, inabsence of any clear or cogent evidence against the appellant, both thecourts had committed gross error in convicting the appellant.

6. However, the learned counsel appearing for the respondentState submitted that there being concurrent findings recorded by theSessions Court as well as High Court with regard to the guilt of theappellant, the Court may not interfere with the same. While fairly agreeingthat an extra judicial confession would be a weak piece of evidence, hesubmitted that there was other corroborative evidence adduced by theprosecution which conclusively proved the entire chain of circumstances AB

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Aleading to the guilt of the present appellant. According to him, after thealleged incident on 02.12.1994, till the dead bodies were recovered on11.12.1994, nobody had seen the deceased Brinda and Kanhaiya in thevillage, and therefore the evidence of PW-1 Dhansingh who had seenKanhaiya lastly with the present appellant was required to be believed,as believed by the courts below. According to him, the concerned doctorBwho had carried out the postmortem had also opined that the death ofthe deceased could be homicidal death also.

7. At the outset, it may be stated that undisputedly the entire caseof the prosecution rested on the circumstantial evidence, as there wasno eye witness to the alleged incident. The law on the appreciation ofCcircumstantial evidence is also well settled. The circumstances concerned“must or should be” established and not “may be” established, as held inShivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra[1]. Theaccused “must be” and not merely “may be” guilty before a court canconvict him. The conclusions of guilt arrived at must be sure conclusionsDand must not be based on vague conjectures. The entire chain ofcircumstances on which the conclusion of guilt is to be drawn, should befully established and should not leave any reasonable ground for theconclusion consistent with the innocence of the accused. The five goldenprinciples enumerated in case of Sharad Birdhichand Sarda Vs. Stateof Maharashtra[2 ]laid down in para 152 may be reproduced herein forEready reference:

“152. 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 toFbe drawn should be fully established.

It 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 shouldGbe proved” as was held by this Court in Shivaji SahabraoBobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observationswere made : [SCC para 19, p. 807 : SCC (Cri) p. 1047]

1 (1973) 2 SCC 793H2 (1984) 4 SCC 116

“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 longand 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,

(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.”

8. It is also needless to reiterate that for the purpose of provingthe charge for the offence under Section 302, the prosecution mustestablish “homicidal death” as a primary fact. In order to convict anaccused under Section 302, the court is required to first see as to whetherthe prosecution has proved the factum of homicidal death. So far as thefacts of present case are concerned, the evidence of PW-13 Dr. R.K.Singh, who had carried out the post-mortem of the deceased Brinda andKanhaiya, would be most relevant in this regard. He had stated in hisdeposition before the court, inter alia, that on 12.12.1994, he had carriedout the post-mortem of Kumari Brinda, daughter of Bhagirathi, and ofKanhaiya alias Chandrashekhar Gaur. The dead bodies of both thedeceased were in decomposed state. He had further stated that the knotmark present on the neck of the deceased Brinda was ante-mortem,and that the cause of death appeared to be Asphyxia due to hanging.The death had taken place within 8 to 10 days and the nature of deathwas Suicidal. The said Doctor had stated similar facts for Kanhaiya thatthe dead body of Kanhaiya was found bent towards left side from hisneck and a ligature mark having size 10" x 5" was present on the neck.The cause of death appeared to be Asphyxia due to hanging and thedeath appeared to have taken place within 8 to 10 days. He had further A

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Astated that there was neither fracture found on the dead bodies of thedeceased, nor any blood clots were found, nor any injuries were found,and therefore he had opined that the cause of death was hanging whichnormally is found in case of suicide. He specifically stated that as thedead bodies were decomposed, he could not express any opinion whetherit was a homicidal death. In the cross-examination by the learned counselBfor the accused, he had categorically admitted that he did not find anysymptom of homicidal death, nor he had opined in his report given on12.12.1994 that the deaths of the deceased were homicidal. Of course,he had stated that on the basis of the report submitted on 30.04.1995, aninference could be drawn that the deaths could be homicidal deaths.

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9. It is worth noting that the High Court in the impugned judgmenthas not considered at all the evidence of Dr. R.K. Singh to come to theconclusion whether the deaths were homicidal deaths, before confirmingthe conviction of the appellant for the offence under Section 302 IPC.Unfortunately, the Sessions Court also in para 23 of its judgment observedDthat the statement of Dr. R.K. Singh was not important because he hadexpressed an opinion which was neither beneficial to the prosecutionnor to the defence. In our opinion, when the case of the prosecutionrested on circumstantial evidence, it was imperative for the prosecutionto prove beyond reasonable doubt that the deaths of the deceased werehomicidal deaths and not suicidal, more particularly when the line ofEdefence of the accused was that the Brinda and Kanhaiya had committedsuicide, and when Dr. R.K. Singh who had carried out their post-mortemshad also opined that the nature of their deaths was Suicidal.

10. This takes the court to examine the incriminating evidencerelied upon by the prosecution, that is the extra judicial confession madeFby the co-accused Videshi. According to the prosecution, the accusedVideshi had made self-inculpatory confession before the PW-4 BholaSingh and also made confession before the PW-5 Chandrashekhar, PW-6 Baran Singh and PW-7 Dukaluram, involving the other accused includingthe present appellant. The prosecution had also produced an affidavit ofGVideshi (Ex-P/11) allegedly affirmed before the Notary. Though theSessions Court relying upon the said evidence of extra judicial confessionof Videshi convicted all the four accused, the High Court partly believingthe said extra judicial confession, acquitted the three accused i.e.,Bhagirathi, Mangal Singh and Videshi from the charges levelled againstthem under Section 302 read with 34 of IPC, however convicted themH

for the offence under Section 201 read with 34 by holding that the saidaccused had tried to cause disappearance of the evidence.

11. At this juncture, it may be noted that as per Section 30 of theEvidence Act, when more persons than one are being tried jointly for thesame offence, and a confession made by one of such persons affectinghimself and some other of such persons is proved, the court may takeinto consideration such confession as against such other person as wellas against the person who makes such confession. However, this courthas consistently held that an extra judicial confession is a weak kind ofevidence and unless it inspires confidence or is fully corroborated bysome other evidence of clinching nature, ordinarily conviction for theoffence of murder should not be made only on the evidence of extrajudicial confession. As held in case of State of M.P. Through CBI &Ors. Vs. Paltan Mallah & Ors.[3], the extra judicial confession made bythe co-accused could be admitted in evidence only as a corroborativepiece of evidence. In absence of any substantive evidence against theaccused, the extra judicial confession allegedly made by the co-accusedloses its significance and there cannot be any conviction based on suchextra judicial confession of the co-accused.

12. In Sahadevan & Anr. Vs. State of Tamil Nadu[4], it wasobserved in para 14 as under:

“14. It is a settled principle of criminal jurisprudence thatextra-judicial confession is a weak piece of evidence.Wherever the court, upon due appreciation of the entireprosecution evidence, intends to base a conviction on anextra-judicial confession, it must ensure that the same inspiresconfidence and is corroborated by other prosecutionevidence. If, however, the extra-judicial confession suffersfrom material discrepancies or inherent improbabilities anddoes not appear to be cogent as per the prosecution version,it may be difficult for the court to base a conviction on sucha confession. In such circumstances, the court would be fullyjustified in ruling such evidence out of consideration.”

The said ratio was also reiterated and followed by this court incases of Jagroop Singh Vs. State of Punjab[5], S.K. Yusuf Vs. State of 3 (2005) 3 SCC 169

4 (2012) 6 SCC 403

5 (2012) 11 SCC 768

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AWest Bengal[6] and Pancho Vs. State of Haryana[7], wherein it has beenspecifically laid down that the extra judicial confession is a weakevidence by itself and it has to be examined by the court with greatercare and caution. It should be truthful and should inspire confidence. Anextra judicial confession attains greater credibility and evidentiary valueif it is supported by chain of cogent circumstances and is furtherBcorroborated by other prosecution evidence. In the instant case it is truethat the co-accused Videshi had allegedly made self-inculpatory extrajudicial confession before the PW-4 Bhola Singh, and had made extrajudicial confession before the other witnesses i.e., PW-5 Chandrashekhar,PW-6 Baran Singh Thakur and PW-7 Dukaluram stating, inter alia,Cthat the other three accused i.e., Bhagirathi, Chandrapal and MangalSingh had committed the murder and he (i.e. Videshi) was asked toassist them in disposing the dead bodies and concealing the evidence.However, the High Court, considering the inconsistency between thesaid two extra judicial confession made by the co-accused Videshi, didnot find it safe to convict the other accused i.e., Bhagirathi, MangalDSingh and Videshi himself, and the High Court surprisingly consideredthe said extra judicial confession made by Videshi as an incriminatingcircumstance against the appellant Chandrapal for convicting him forthe offences charged against him. In our opinion if such weak piece ofevidence of the co-accused Videshi was not duly proved or foundEtrustworthy for holding the other co-accused guilty of committing murderof the deceased Brinda and Kanhaiya, the High Court could not haveused the said evidence against the present appellant for the purpose ofholding him guilty for the alleged offence.

13. This takes the court to examine the theory of “Last seenFtogether” propounded by the prosecution. As per the case of prosecution,PW-1 Dhansingh had seen the accused Chandrapal calling the deceasedKanhaiya and taking him inside his house on the fateful night. Apartfrom the fact that the said Dhansingh had not stated about the time ordate when he had lastly seen Kanhaiya with Chandrapal, even assuming that he had seen Chandrapal calling Kanhaiya at his house when he wasGsitting at the premises of village panchayat, the said even had takenplace ten days prior to the day when the dead bodies of the deceasedwere found. The time gap between the two incidents i.e., the day whenDhansingh saw Chandrapal calling Kanhaiya at his house and the day6 (2011) 11 SCC 754H7 (2011) 10 SCC 165

Kanhaiya’s dead body was found being quite big, it is difficult to connectthe present appellant with the alleged crime, more particularly whenthere is no other clinching and cogent evidence produced by theprosecution.

14. In this regard it would be also relevant to regurgitate the lawlaid down by this court with regard to the theory of “Last seen together”.

15. In case of Bodhraj & Ors. Vs. State of Jammu andKashmir[8], this court held in para 31 that:

“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….”

16. In Jaswant Gir Vs. State of Punjab[9], this court held that inabsence of any other links in the chain of circumstantial evidence, theaccused cannot be convicted solely on the basis of “Last seen together”,even if version of the prosecution witness in this regard is believed.

17. In Arjun Marik & Ors. Vs. State of Bihar[10], It was observedthat the only circumstance of last seen will not complete the chain ofcircumstances to record the finding that it is consistent only with thehypothesis of the guilt of the accused, and therefore no conviction onthat basis alone can be founded.

18. As stated hereinabove, in order to convict an accused underSection 302 IPC the first and foremost aspect to be proved by prosecutionis the factum of homicidal death. If the evidence of prosecution fallsshort of proof of homicidal death of the deceased, and if the possibilityof suicidal death could not be ruled out, in the opinion of this court, theappellant-accused could not have been convicted merely on the basis ofthe theory of “Last seen together”.

19. Ergo, having regard to the totality of evidence on record, thecourt is of the opinion that the High Court had committed gross error inconvicting the appellant-accused for the alleged charge of 302 read with 8 (2002) 8 SCC 45

9 (2005) 12 SCC 438

10 1994 Supp (2) SCC 372

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A34 of IPC, relying upon a very weak kind of evidence of extra judicialconfession allegedly made by the co-accused Videshi, and relying uponthe theory of “Last seen together” propounded by the PW-1 Dhansingh.It is also significant to note that no evidence worth the name as to howand by whom the deceased Brinda was allegedly murdered was producedby the prosecution. Under the circumstances, it is required to be heldBthat the prosecution had miserably failed to bring home the chargeslevelled against the appellant-accused beyond reasonable doubt. Thesuspicion howsoever strong cannot take place of proof.

20. For the reasons stated above, the appeal deserves to be allowedCand is accordingly allowed. The appellant-accused Chandrapal is acquittedfrom the charges levelled against him. He is directed to be set freeforthwith.

21. Office is directed to do the needful and to send the copy ofthe order to the concerned jail authority at the earliest.

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Appeal allowed.

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