If a person is last seen with the deceased, he must offer an explanation as to how and when he parted company
|Case name:||Nizam v. State of Rajasthan|
|Case number/Citation:||Criminal Appeal No. 413 OF 2007 with Criminal Appeal No.1248 of 2002|
|Court:||Supreme Court, Criminal Appellate Jurisdiction|
|Bench:||Hon’ble Justice R. Banumathi; Hon’ble Justice Dipak Misra|
|Decided on:||4 September, 2015|
|Relevant Act/Sections:||Sections 302 and 201 of Indian Penal Code, 1860; Code of Criminal Procedure, 1973|
- BRIEF FACTS AND PROCEDURAL HISTORY:
- In the present case, the deceased i.e. Manoj was the helper on the truck No.MP-07-2627 and had gone to Pune and thereafter to Barar along with his first driver Raj Kumar(PW-2) and second driver Ram Parkash (PW-1) and from Barar they loaded the truck with pipes for destination to Ghaziabad on 23.01.2001.
- Accused appellants namely Nizam and Shafique who were the driver and cleaner respectively on the truck No.DL-1GA-5943 also loaded their truck with pipes from the same company on the same day at Barar and started for Ghaziabad along with truck No.MP-07-2627.
- During this period drivers and cleaners of both the trucks developed acquaintance with each other. While on the way to Ghaziabad, driver Raj Kumar (PW-2) of truck No.MP-07-2627 got into quarrel with some local persons and consequently Barar police detained him along with his truck. Faced with such situation, Raj Kumar (PW-2) instructed his second driver Ram Parkash(PW-1) to hand over the amount of Rs.20,000/- to Manoj with instructions to give the money to the truck owner.
- Accordingly, Manoj left for Gwalior with accused persons by the truck No. DL-1GA-5943 on 23.01.2001. Dead body of deceased was found on 26.01.2001 under suspicious circumstances in a field near village Maniya. On 26.01.2001 at about 3.00 O’clock, Koke Singh (PW-13) went to collect the fodder and found a dead body lying in the field and the same was informed to Shahjad Khan (PW-4).
- Based on the written information by Shahjad Khan (PW-4), case was registered in FIR No.16/2001 under Sections 302 and 201 IPC on 26.01.2001 at Thana-Maniya, District Dholpur. Gullu Khan (PW-16), Investigating Officer seized the dead body and prepared a Panchnama.
- One bilty (Ex. P17) of Uttar Pradesh, Haryana Roadlines (Pune) and one receipt (Ex. P18) of Madhya Pradesh Government, Shivpuri Naka pertaining to truck No. DL-1GA-5943 were recovered from the pocket of trouser of deceased Manoj and in the said bilty (Ex.P-17), name of the driver was mentioned as Nizam and truck No.DL-1GA-5943 and some phone numbers.
- Based on the clues obtaining in the bilty, accused Nizam and Shafique were arrested on 27.01.2001 and the truck No.DL-1GA-5943 was recovered. After due investigation, chargesheet was filed against the appellants-accused under Sections 302 and 201 IPC.
- Additional Sessions Judge, Fast Track Court No.2, Dholpur held that the appellantsaccused committed murder of deceased-Manoj to grab Rs.20,000/- and the prosecution has established the circumstances proving the accused-appellants guilty under Sections 302 and 201 IPC and sentenced each of them to undergo life imprisonment with a fine of Rs.2,000/- with default clause and two years rigorous imprisonment with a fine of Rs.500/- with default clause respectively.
- Aggrieved by the verdict of conviction, appellants-accused preferred appeal before the High Court of Rajasthan, which confirmed the conviction of the accused-appellants, agreeing to the order of the fast track court and also ordered respective sentence of imprisonment and fine amount imposed on each of them. Being aggrieved, the appellants filed an appeal in the Supreme Court.
- ISSUE BEFORE THE COURT:
- Whether the High Court was justified in confirming the conviction of the accused-appellants under Sections 302 and 201 IPC and sentence of life imprisonment imposed on each of them with a fine of Rs.2,000/- with default clause and also two years rigorous imprisonment with a fine of Rs.500/- with default clause respectively?
- Whether the lower courts were right in invoking the “last seen theory.” ?
- RATIO OF THE COURT:
- The court making use of the impugned order of the HC and the relevant evidences stated that case of the prosecution is entirely based on the circumstantial evidence.
- In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. The court further contended that all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence.
- Seeking reference from Bodhraj @ Bodha And Ors. vs. State of Jammu & Kashmir, the court stated that the principle of circumstantial evidence has been reiterated in the case, wherein the court held that “Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.”
- For establishing the same principle the court made a reference to various cases, Bhagat Ram v. State of Punjab, wherein it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
- Using the testimonies of the PWs 1, 2 and 3, the court further stated that it can be seen that PW1-Ram Parkash and PW2-Raj Kumar along with deceased cleaner Manoj got their truck No. MP-07-2627 loaded with pipes at Barar and at the same time another truck No.DL-1GA-5943 of the accused Nizam and Shafique was also loaded with pipes.
- PWs 1 and 2 further stated that after being released from the police station, they went to Gwalior and enquired about Manoj from their owner Rajnish Kant PW-3 who had no knowledge about Manoj.
- Based on the evidence of PWs 1 and 2, courts below expressed the view that motive for murder of Manoj was the lust for the money which Manoj was carrying. As per the SC, the courts below used the “last seen theory”, and they based their conviction on the same. However, the apex court stated that the appellants are alleged tohave committed murder of Manoj for the amount which Manoj was carrying, but neitherthe amount of Rs.20,000/- nor any part of it was recovered from the appellants.
- The court here reasoned the judgement based on the fact that if the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence, which shall further lend assurance to the prosecution case. But even if the prosecution has not been able to prove the motive, that will not be a ground to throw away the prosecution case.
- Absence of proof of motive will only demand careful scrutiny and deeper analysis of evidence adduced by the prosecution. On investigation PW-17 i.e. Sudama Vithal Darekar it was clear that driver Raj Kumar came to the police station complaining that by five to seven people of other vehicle have robbed him and the money.
- However, after investigation it was discovered that Raj Kumar gave false information and a case under Section 182 IPC was registered against him. Unlike the lower courts, It is well-settled by this Court that it is not prudent to base the conviction solely on “last seen theory” as this theory should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.
- Also, the court in question pointed out that The “last seen theory” holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased.
- To have a clear view and understanding of the “last seen theory”, the court referred to the decision of State of Rajasthan vs. Kashi Ram , wherein it was held that “If a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden.”
- Based on the above explanation, the court stated that based on the interrogation with the accused- appellants denied Manoj having travelled in their truck No.DL-1GA-5943. As noticed earlier, body of Manoj was recovered only on 26.01.2001 after three days. The gap between the time when Manoj is alleged to have left in the truck No.DL-1GA-5943and the recovery of the body is not so small, to draw an inference against the appellants.
- Maniya village, the place where the body of Manoj was recovered is alleged to be a notable place for prostitution where people from different areas come for enjoyment. In view of the time gap established between the offence and finding out of the body of the deceased, the court opined that possibility of others intervening cannot be ruled out.
- In the absence of definite evidence that appellants and deceased were last seen together and when the time gap is long, it would be unjustified to come to the conclusion that the appellants are responsible for the murder of Manoj and are guilty of committing murderof Manoj.
- The court further contended that Where time gap is long it would be unsafe to base the conviction on the “last seen theory”; it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution.
- The court stated that neither the weapon of murder nor the money allegedly looted by the appellants or any other material was recovered from the possession of the appellants. There are many apparent lapses in the investigation and missing links. Thus the court found many loopholes in the case of the prosecution.
- For establishing the guilt on the basis of the circumstantial evidence, the circumstances must be firmly established and the chain of circumstances must be completed from the facts. The chain of circumstantial evidence cannot be said to be concluded in any manner sought to be urged by the prosecution.
- DECISION HELD BY COURT:
- Accused must have the benefit of doubt. In the facts and circumstances of the case, the court stands satisfied that the conviction of the appellants cannot be sustained and the appeal ought to be allowed.
- The conviction of the appellants under Sections 302 and 201 IPC was set aside and the appeal was allowed.
- The appellants were in jail and they were ordered to be set at liberty forthwith if not required in any other case.
 (2002) 8 SCC 45
 AIR 1954 SC 621
 (2006) 12 SCC 254