High Court of Punjab and HaryanaCRA-D/35/2004allowed

Partap Singh v. State Ofpb.Etc.

2025-05-22Mr. Justice Gurvinder Singh Gill,Mr. Justice Jasjit Singh Bedi38 pages

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"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:"

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

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made :"

"certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

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

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. " 8

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"46. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows:

1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;

3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved."

47. There cannot be any dispute to the fact that the case on hand is one of the circumstantial evidence as there was no eye witness of the occurrence. It is settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt the complete chain of events and

circumstances which definitely points towards the involvement and guilty of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eye witness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the expected principles in that regard."

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"12. Thus, from the aforesaid discussion, it would be clear that out of the five circumstances, the prosecution has failed to prove the recovery of bloodstained balwa and tangi upon the disclosure statement of accused Rajesh Yadav @ Raju Gowala by credible evidence. The circumstance that the appellant came to his village from Punjab four to five days before the date of the alleged occurrence and was seen by PW18 in village Simdega cannot be said to be an unnatural conduct on the part of the appellant, as such the same cannot be taken as a circumstance against him. Recovery of one torch cell and knife from the pocket of appellant after the date of alleged occurrence cannot be used as a circumstance against him, especially when neither there is any case nor evidence that the knife recovered was stained with blood. The other circumstances which remain are motive and letter written by the appellant giving false information to his brother that he was dead. These two circumstances raise strong suspicion against the appellant, but it is well settled that suspicion

howsoever strong it may be cannot take the place of proof. In any view of the matter, on the basis of these circumstances, it is not possible to draw an irresistible conclusion which is incompatible with innocence of the appellant so as to complete the chain. It is well settled that in a case of circumstantial evidence, the chain of circumstances must be complete and in case there is any missing link therein, the same cannot form the basis of conviction. For the foregoing reasons, we are of the opinion that prosecution has failed to prove its case beyond reasonable doubt against all the accused persons, much less the appellant."

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13. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish, 2005(1) Apex Criminal 437 : [2005(3) SCC 114] it was noted as follows :

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14. In Ramreddy Rajesh Khanna Reddy v. State of A.P., 2006(2) RCR (Criminal) 462 : 2006(1) Apex Criminal 675 : [2006(10) SCC 172] it was noted as follows :

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15. A similar view was also taken in Jaswant Gir v. State of Punjab, 2006(2) RCR (Criminal) 202 : 2006(1) Apex Criminal 700 : [2005(12) SCC 438].

16. Above being the position, the inevitable conclusion is that the trial court and the High Court were not justified in directing conviction of the appellant. He is acquitted of the charges. The bail bonds executed pursuant to the order granting bail shall stand discharged.

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21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Arjun Marik and others v. State of Bihar, 1994(2) RCR (Criminal) 609 : (1994) Supp.(2) SCC 372, this Court held as follows :

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22. This Court in Bodhraj v. State of Jammu and Kashmir, (2002)8 SCC 45, held that the last seen theory comes into play where time"gap between the point of time when the accused and the deceased were seen last alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It will be hazardous to come to a conclusion of guilt in cases

where there is no other positive evidence to conclude that the accused 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 last seen on 4th April, 2004 at Vadakkumelur village during Panguni Uthiram Festival at Mariyamman Temple. The body of the deceased was taken from the borewell by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and intervening period of seven days there was nobody in contact with the deceased.

24. In Jaswant Gir v. State of Punjab, 2006(2) RCR (Criminal) 202 : (2005)12 SCC 438, this Court held that in absence of any other links in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of "last seen together" even if version of the prosecution witness in this regard is believed.

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14. Courts below convicted the appellants on the evidence of PWs 1 and 2 that deceased was last seen alive with the appellants on 23.01.2001. Undoubtedly, "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. 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. It is well"settled by this Court that it is not prudent to base the conviction solely on "last seen theory". "Last seen 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.

15. Elaborating the principle of "last seen alive" in State of Rajasthan v. Kashi Ram, 2007(1) RCR (Criminal) 131 : (2006) 12 SCC 254, this Court held as under :"

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The above judgment was relied upon and reiterated in Kiriti Pal v. State of West Bengal, (2015) 5 Scale 319.

16. In the light of the above, it is to be seen whether in the facts and circumstances of this case, whether the courts below were right in invoking the "last seen theory." From the evidence discussed above, deceased"Manoj allegedly left in the truck DL" 1GA"5943 on 23.01.2001. The body of deceased"Manoj was recovered on 26.01.2001. The prosecution has contended the accused persons were last seen with the deceased but the accused have not offered any plausible, cogent explanation as to what has happened to Manoj. Be it noted, that only if the prosecution has succeeded in proving the facts by definite evidence that the deceased was last seen alive in the company of the accused, a reasonable inference could be drawn against the accused and then only onus can be shifted on the accused under Section 106 of the Evidence Act.

17. During their questioning under Section 313 Cr.P.C., 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"5943 and the recovery of the body is not so small, to draw an inference against the appellants. At this juncture, yet another aspect emerging from the evidence needs to be noted. From the statement made by Shahzad Khan (PW"4) the internal organ (penis) of the deceased was tied with rope and blood was oozing out from his nostrils. 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.

18. In view of the time gap between Manoj left in the truck and the recovery of the body and also the place and circumstances in which the body was recovered, 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 dangerous to come to the conclusion that the appellants are responsible for the murder of Manoj and are guilty of committing murder of Manoj. 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. From the facts and evidence, we find no other corroborative piece of evidence corroborating the last seen theory.

19. In case of circumstantial evidence, court has to examine the entire evidence in its entirety and ensure that the only inference that can be drawn from the evidence is the guilt of the accused. In the case at hand, 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: " (i) Non"recovery of stolen money; (ii) The weapon from which abrasions were caused; (iii) False case lodged by PW"2 alleging that he was being robbed by some other miscreants; (iv) Non"identification of the dead body and (v) Non" explanation as to how the deceased reached Maniya village and injuries on his internal organ (penis). Thus we find 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. - 9+ "

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18. The circumstance of last seen together cannot by itself form the basis of holding the accused guilty of the offence. In Kanhaiya Lal v. State of Rajasthan, 2014(2) RCR (Criminal) 180 : 2014(2) Recent Apex Judgments (R.A.J.) 436 : (2014) 4 SCC 715 this court held that:

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19. This Court in Bharat v. State of M.P., 2003(1) RCR (Criminal) 637 : (2003) 3 SCC 106, held that the failure of the accused to offer any explanation in his statement under Section 313, Cr.P.C. alone was not sufficient to establish the charge against the accused. In the facts of the present case, the High Court committed an error in holding that in the absence of any satisfactory explanation by the accused the presumption of guilt of the Accused stood un"rebutted and thus the Appellants were liable to be convicted.

20. Mr. R. Venkataramani relied upon Deonandan Mishra v. State of Bihar, (1955) 2 SCR 570 at p.582 to buttress his submission that the circumstance of last seen together coupled with lack of any satisfactory explanation by the accused is a very strong circumstance on the basis of which the accused can be convicted. It was held by this Court in the above judgment as follows:"

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21. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa v. Sanjay Thakran, 2007(2) RCR (Criminal) 458 : 2007(2) Recent Apex Judgments (R.A.J.) 101 : (2007) 3 SCC 755 in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the above judgment as under:"

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seen together along with the absence of satisfactory explanation are not sufficient for convicting the accused. Therefore the findings recorded in the above judgment are not applicable to the facts of this case.

22. Due to the lack of chain of circumstances which lead to the only hypothesis of guilt against the accused, we set aside the judgment of the High Court and acquit the Appellants of the charges of Section 302, 201 read with 34 IPC. The Appellants are directed to be set at liberty forthwith, if not required in any other case.

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12. The evidence of last seen becomes an extremely important piece of evidence in a case of circumstantial evidence, particularly when there is a close proximity of time between when the accused was last seen with the deceased and the discovery of the body of the deceased, or in this case the time of the death of the deceased. This does not mean that in cases where there is a long gap between the time of last seen and the death of the deceased the last seen evidence loses its value. It would not, but then a very heavy burden is placed upon the prosecution to prove that during this period of last seen and discovery of the body of the deceased or the time of the death of the deceased, no other person but the accused could have had an access to the deceased. The circumstances of last seen together in the present case by itself cannot form the basis of

guilt (See: Anjan Kumar Sarma & Others v. State of Assam (2017) 14 SCC 359 "para 19).

The circumstances of last seen together does not by itself lead to an irrevocable conclusion that it is the accused who had committed the crime. The prosecution must come out with something more to establish this connectivity with the accused and the crime committed. Particularly, in the present case when there is no close proximity between circumstances of last seen together and the approximate time of death, the evidence of last seen becomes weak (See: " Malleshappa v. State of Karnataka (2007) 13 SCC 399 " para 23).

In Nizam & Anr. v. State of Rajasthan (2016) 1 SCC 550 where the time gap between the last seen together and the discovery of the body of the deceased was long, it was held that during this period the possibility of some other interventions could not be ruled out. Where time gap between the last seen and time of death is long enough, as in the present case, then it would be dangerous to come to the conclusion that the accused is responsible for the murder. In such cases it is unsafe to base conviction on the "last seen theory" and it would be safer to look for corroboration from other circumstance and evidence which have been adduced by the prosecution. The other circumstances here is the so called discovery, and most of these, as we have already discussed, fail to meet the requirement of Section 27 of the Evidence Act.

As per the post"mortem which was conducted on 12.05.2000 at 4:15 P.M, the death was 48 hours prior to the post mortem, which means it was before 4:00 P.M. on 10.05.2000. Even assuming that the death has taken place, a day earlier i.e. 09.05.2000, still there is a long gap between the last seen which is at 7:00 pm on 08.05.2000 and the morning of 09.05.2000. In the case of State of Goa v. Sanjay Thakran (2007) 3 SCC 755, where in the evidence of last seen, the recovery of dead body was only a few hours before "last seen", it was not considered reliable.

The same was again emphasized by this Court in Ajit Singh v. State of Maharashtra (2011) 14 SCC 401 where it was emphasized that the time between victim last seen alive and the discovery of the body of the deceased has to be of close proximity, so that any other person being the author of the crime cannot be ruled out. In this case, even if we take the time between the last seen and the approximate time of death as per the post"mortem, which would go beyond 48 hours preceding the time of post"mortem and the time of death can be stretched to the morning of May 9, 2000, which still begs an explanation from the prosecution as to the time gap, as the deceased was last seen with the two accused on 08.05.2000 at 7:00 P.M. The trial court as well as the High Court have lost sight of the vital aspect of the matter.

Both the Courts have relied on Section 106 of the Act and have held that since the accused was last seen with the deceased and he has not been able to give any reasonable explanation of his presence with the deceased in his statement under section 313 of the Cr.P.C., 1973 it has to be read against the accused and therefore it has to be counted as an additional link in the chain of circumstantial evidence. In present case in the findings of the trial court and High Court this appears to be the most important aspect which weighed with the trial court as well as the High Court in establishing the guilt of the accused. We are, however, afraid this is a complete misreading of Section 106 of the Act.

Section 101 of the Act places the burden of proof on the prosecution. It reads as under :"

101. Burden of proof " Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Section 106 of the Act creates an exception to Section 101 and reads as under :"

106. Burden of proving fact especially within knowledge " When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Section 106 of the Act is an exception to the rule which is Section 101 of the Act, and it comes into play only in a limited sense where the evidence is of a nature which is especially within the knowledge of that person and then the burden of proving that fact shifts upon him that person. The burden of proof is always with the prosecution. It is the prosecution which has to prove its case beyond a reasonable doubt. Section 106 of the Act does not alter that position. It only places burden for disclosure of a fact on the establishment of certain circumstances. We have no reason to doubt the testimony of PW"10 (Karanjit Singh), the sole witness of last seen.

In his statement under section 313 of the Code of Criminal Procedure, 1973 when the appellant was questioned about being in the company of the deceased on 08.05.2000 along with co"accused Mange Ram, no explanation was given by the appellant about his whereabouts. It is for this reason that it has been held that the accused has not been able to discharge his burden under Section 106 of the Act and therefore this has to be read as an additional link in the chain of evidence against the appellant. To our mind, however, Section 106 of the Act would not even come to play here under the facts and circumstances of the present case.

13. What has to be kept in mind is that Section 106 of the Act, only comes into play when the other facts have been established by the prosecution. In this case when the evidence of last seen itself is on a weak footing, considering the long gap of time between last seen by PW"10 and the time of death of the deceased, Section 106 of the Act would not be applicable under the peculiar facts and the circumstances of the case.

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17. In the present case, given that there is no definitive evidence of last seen as also the fact that there is a long time"gap between the alleged last seen and the recovery of the body, and in the absence of other corroborative pieces of evidence, it cannot be said that the chain of circumstances is so complete that the only inference that could be drawn is the guilt of the appellant. In Laxman Prasad v. State of Madhya Pradesh, (2023) 6 SCC 399, we had, upon considering Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 and Shailendra Rajdev Pasvan v. State of Gujarat, (2020) 14 SCC 750, held that `... In a case of circumstantial evidence, the chain has to be complete in all respects so as to indicate the guilt of the accused and also exclude any other theory of the crime.'

It would be unsafe to sustain the conviction of the appellant on such evidence, where the chain is clearly incomplete. That apart, the presumption of innocence is in favour of the accused and when doubts emanate, the benefit accrues to the accused, and not the prosecution. Reference can be made to Suresh Thipmppa Shetty v. State of Maharashtra, 2023 INSC 749 : 2023 SCC OnLine SC 1038.

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32. The only circumstance remaining against the accused that can be believed, is the last"seen theory. PW1, PW2, PW3 and PW6 and PW7 have deposed that they saw the accused lastly with the deceased. It is settled law, however, that conviction cannot be solely based on last"seen theory. This Court in Krishnan v. State of T.N., (2014) 12 SCC 279 had observed : M(& %

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33. We must also clarify that even the last"seen theory against the accused"appellant is not free from suspicion. In her cross" examination, PW7, an independent witness, who has been relied upon for this circumstance, admits that she had not told the

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