JUDGMENT
Aftab H. Saikia, J.
1. Heard Mr. N. Dutta, learned Sr. Counsel assisted by Miss. A. Dutta, learned Counsel for the appellants as well as Mr. P. C. Gayon, learned P. P., Assam.
2. This appeal has been carried from the judgment and order dated 27-7-2007 passed by the learned Sessions Judge, Barpeta in Sessions Case No. 122/2006 by which both the accused appellants were convicted under Section 302 of the Indian Penal Code (for short ‘the IPC) and accordingly, they were sentenced to undergo imprisonment for life with a fine of Rs. 2000/- each and in default to undergo imprisonment for 2 months under Section 302, IPC and further rigorous imprionment for 3 years with a fine of Rs. 2000/- each and in default to undergo rigorous imprionment for 2 months under Section 201, IPC for committing the offence of murder.
3. Before delving upon the details of the challenge to such conviction and sentence so handed down by the learned Judge to the accused/appellants, it would be convenient to notice the facts of the case in a nutshell.
4. An FIR was lodged by one Talib Mandal, Goan Burah of Bagariguri Pathar, P.W. 1 with the Sarbhag Police Station on 25-9-2004 alleging that on 22-9-2004 at about 6 p.m. the accused/appellant Nos. 1 and 2 mentioned in the FIR itself came to their house and took his nephew Shajahan Ali (hereinafter referred to as “the deceased”) along with them on a motorcycle stating that they would go to the house of Samsul (MLA). The three persons crossed Nichuka Ghat at about 8.30 p.m. riding the motor cycle. Riding around one Kilometer from Nichuka Ghat the above-mentioned accused in collusion with accused Nos. 1 and 2 equipped with deadly weapons attacked his nephew Sahajahan “the deceased”. After the attack accused Nos. 1 and 2 went to their respective houses from the place of occurrence and till lodging the FIR, the informant did not get any trace of Sahjahan and suspected that the above accused persons might have killed Sahjahan. His nephew had his four gold rings in his finger besides one mobile phone with some cash. Delay had been made in lodging the ejahar as the informant was busy in searching his nephew.
5. On the basis of the FIR above-mentioned, the police started investigation and registered a case being Sorbhog P.S. Case No. 228/04 under Sections 120-B/147/148/149/364, IPC. On completion of investigation, police submitted charge-sheet against the appellants under Sections 147/148/149/120B/302/201. IPC.
6. The learned Sub-Judicial Magistrate (S), Barpeta on receipt of such charge-sheet so submitted by the police, committed the case to the Court of learned Sessions Judge, Barpeta as the case was being exclusively triable by the Court of Session.
7. The learned Judge, on appearance of the appellants and on perusal of the materials available on record including the police papers a well as also upon hearing the learned Counsel for the parties, framed charge against the accused/appellants under Sections 148/149/302, IPC and 201/149, IPC respectively. The entire charges were read over to the accused appellants to which they pleaded not guilty and claimed to be tried.
8. During the trial the prosecution examined as many as 14 witnesses including two Government officials namely P.W. 14, Dr. Kumudeswar Sarma who conducted autopsy on the dead body of the deceased and P.W. 13, Shri Biren Deka, the Investigating Officer (for short ‘the I.O.’). The accused were examined under Section 313, Cr. P.C.
9. The learned Sessions Judge having closely appreciated the material evidence on record including the relevant documents and materials exhibited before him as well as upon hearing the learned Counsel for the parties, came to the conclusion that the prosecution proved its case against the appellants as regards the killing of Sahjahan beyond reasonable doubt and accordingly, the accused-appellants were convicted and sentenced as indicated above.
10. Assailing the impugned conviction and sentence awarded by the learned Sessions Judge, the learned Senior Counsel has strongly contended that the conviction of the appellants for commission of murder of Sahjahan Ali on the basis of “last seen together” theory under circumstantial evidence cannot be sustained in law for the simple and only reason that the prosecution miserably failed to prove the “last seen together” theory in its strict proof. His basic thrust is that insofar as the evidence of P.Ws. 1, 3, 4 and 8, i.e. Taleb Mandal (informant), Musstt. Samela Khatun, Mijanur Rahman and Abdul Hakim Mandal respectively upon whom much reliance was placed upon is concerned, it is crystal clear that at about 6 p.m. both the appellants came to the house of Sahjahan and took him away on the plea to go to the house of M.L.A. Samsul Haque with regard to the appointment of the deceased’s wife in Angwanbadi worker and to that extent there was possibility of the application of the “last seen together” theory. But at the same time on close perusal to the evidence of P.Ws. 5 and 6 Idris Khan and Abdul Hanif respectively, being the independent witnesses, it would transpire that at 8/8.30 p.m. the deceased was returning from Barpeta Road side to Barpeta side by crossing the river on their boat.
11. To substantiate his submission, the learned Sr. Counsel has invited our attention to the deposition of P.Ws. 5 and 6.
12. P.W. 5 Idris Ali, who was working as a boatman at the concerned parghat deposed that about 2/2 1/2 years ago while he was working under Nalu as boatman, Mizanur P.W. 4 came to him at about 1 p.m. and asked him about crossing the river by his elder brother to which he replied that at about 8.00 p.m. his elder brother Sahjahan crossed the river from the Barpeta Road side. At the same breath, P.W. 6 Abdul Hanif testified that while he was working with Idris P.W. 5 on boat at parghat, about 2V± years ago on a day at about 8.30 p.m. Sahjahan crossed river from Barpeta Road side to Barpeta side and on next following day at about i p.m. he heard from the mouth of the people that Sahjahan was not found.
13. Relying on this piece of evidence of 2 (two) independent witnesses, it is vehemently argued that the entire concept of “last seen together” theory put forward in the instant case has been diluted. According to him, admittedly although there was no eyewitness to prove the prosecution case, the set of evidence so made available on record would not suggest for application of any “last seen together” theory so as to rope-in the appellants for conviction under Section 302, IPC.
14. Besides the learned Sr. Counsel has also submitted that in the medical evidence adduced by P.W. 14, the Doctor, it is clearly staled that alter floating of the dead body in the water for 14/16 days it was not practicable to recognize the dead body from facial appearance and such evidence was also corroborated by P.W. 11 Iyasin Ali Sonar who emphatically testified that it was not practicable to identify the dead body to be the body of Sahjahan so found in the Beki river towards down of Beki bridge as it was swollen and decomposed.
15. Referring to the evidence of the witnesses aforesaid, it is contended on the behalf of the appellants that under such circumstances, the appellants are entitled to gel benefit of doubt as the prosecution failed to prove its own case based on “last seen together” theory.
16. To strengthen the argument advanced on behalf of the appellants, much reliance has been placed on the various judicial decisions pronounced by of the Apex Court which would be discussed hereinafter.
17. On the other hand, Mr. Gayon, learned P.P., Assam in support of the impugned conviction and sentence, has strongly contended that the “last seen theory” in the instant case was absolutely proved by the prosecution to the effect that P.W. 3, wife of the deceased categorically stated that husband was taken away by the accused-appellants 1 and 2 from her house at about 6 p.m. on 22-9-2004 to the house of MLA Samsul Haque for her appointment as Angwanbadi worker. He has also stated that even P.W. 1, the informant deposed that he came to know that the accused-appellant Nos. 1 and 2 came to his house and look away Sahjahan at about 6 p.m. Since then Sahjahan was untraced and only after 14 days his dead body was recovered. According to Mr. Gayon, learned P.P. no illegality and/or infirmity was found in the. impugned conviction and sentence so recorded by the learned Judge and hence the conviction and sentence deserves no interference.
18. We have given our anxious consideration to the extensive arguments so advanced by the learned Counsel respectively by and between the parties including the State of Assam.
19. We have also meticulously evaluated and appreciated the testimony of all the witnesses especially the independent witnesses P.Ws. 5 and 6. Be it noted herein that all the other witnesses, P.W. 1 Taleb Mandal, P.W. 2, Musstt. Halima Bewa, P.W. 3 Musstt. Samela Khatun, P.W. 4 Mijanur Rahman and P.W. 8 Abdul Hakim Mandal were the relatives.
20. The relevant testimony of the witnesses particularly P.W. 1. the informant and uncle of the deceased, P.W. 3 the wife of the deceased, P.W. 5 Idris Khan and P.W. 6 Abdul Hanif would go to reveal that when according to P.Ws. 1 and 3 both the appellants came to the their residence at about 6 p.m. and took away the deceased along with them, both the P.Ws. 5 and 6 precisely deposed that at about 8/8.30 p.m. the deceased crossed the river on their boat from Barpeta Road side to Barpela side. Keeping in view the evidence of those witnesses the last seen concept upon which the prosecution primarily fell back upon, cannot be accepted.
21. The Supreme Court in a case of Bodh Raj alias Bodha v. State of Jammu and Kashmir while delving upon the applicability of last seen theory in circumstantial evidence in paragraph 32 observed that:
32. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together. It would be hazardous to come to a conclusion of guilt in those cases.
22. Against the Apex Court in a case of State of U.P. v. Satish while examining a case rested on circumstantial evidence in paragraphs 10 to 17 and 20 ruled:
10. It has been consistently laid down by this Court 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. See Hukum Singh v. State of Rajasthan , Eradu v. State of Hyderabad , Earabhadrappa v. State of Karnataka , State of U.P. v. Sukhbhasi , Balwinder Singh v. State of Punjab and Ashok Kumar Chettarjee v. State of M.P. . The circumstances from which an interference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab 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 bring home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. wherein it has been observed thus:
21. In a case based on circumstantial evidence, the 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. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
12. In Padala Veera Reddy v. State of A.P. it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.
(3). The circumstances, 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 guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
13. In State of U.P. v. Ashok Kumar Srivastava 1992 Cri LJ 1104 it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
14. Sir Alfred Wills in his admirable book Wills Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence : (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability : (3) in all cases whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits : (4) in order to justify the inference of guilt the inculpatory facts must be incompatible .with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt : and (5) if there is any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.
16. In Hanumant Govind Nargundkar v. State M.P. it was observed thus (para 9):
It is well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra . Therein while dealing with the circumstantial evidence it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in the prosecution cannot be cured by a false defence or plea. The condition precedent in the words of this Court, before conviction would be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is so 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.
20. The High Court has placed reliance on a decision of this Court in Ganesh Bhuyan Patel v. State of Maharashtra . A bare reading of the fact situation of that case shows that the delayed examination by I.O. was not the only factor which was considered to be determinative. On the contrary it was held that there were catena of factors which when taken together with the delayed examination proved basis for acquittal.
23. The Apex Court in an another case of Ramreddy Rajeshkhanna Reddy v. State of Andhra Pradesh in paragraphs 27 and 28 held the occasion to analyse the last seen theory and same may be quoted as under:
27. The last seen theory, furthermore comes into play where the time gap between the point of time when the accused and the deceased were last seen 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. Even in such a case Courts should look for some corroboration.
28. In State of U.P. v. Satish this Court observed:
22. The last scene theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when 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 would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt of those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses P.Ws. 3 and 5 in addition to the evidence of P.W. 2.
(See also Bodh Raj alias Bodha v. State of Jammu and Kashmir .
24. Having regard to the those cited cases, it is established that the “last seen together” theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime become impossible.
25. Given the facts and circumstances of this case in its entirety and also upon hearing the learned Counsel for the parties as well as having regard to the judicial pronouncement of the above cited cases, it is found that the “last seen together” theory in our considered opinion, is not applicable in the case in hand because it has come specifically on the evidence of P.Ws. 1 and 3 that the accused/appellants met the deceased at about 6 p.m. When from the close scrutiny of deposition of P.Ws. 5 and 6, being the independent witnesses it is clear that the deceased was seen alone crossing the river from the Barpet Road side to Barpeta side on his way home at about 8/8.30 p.m.
26. In the backdrop of those circumstances so projected by the two independent witnesses, we have no hesitation to hold that “last seen together” theory cannot be applied as circumstantial evidence to rope in the appellants for the offence of killing the deceased and accordingly, the appellants are entitled to get the benefit of doubt.
27. In view of what has been stated, observed and discussed above, we are of the considered view that the impugned conviction and sentence cannot be sustained.
28. Consequently the conviction and sentence of the appellants stands quashed and set aside. Both the appellants be set at liberty forthwith, if they are not connected with any other case.
29. In the result, appeal succeeds and stands allowed.
L.C.R. be sent immediately.
