When the prosecution is establishing last seen theory and accused was found with the deceased immediately before his death (murder), the accused is bound to furnish explanation as to how and when he parted company. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. Dinesh Vs. State Of U.P. [Criminal Appeal No. – 875 Of 2010].
In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatiable with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain.
State of Rajasthan Vs. Kashi Ram (2006) 12 SCC 254
Judgment
1. As both the appeals arise out of a common judgment and order dated 11.1.2010 passed by Additional District and Sessions Judge/Fast Track, Court No.3, Aligarh in Sessions Trial No. 903 of 2005 and Sessions Trial No.1010 of 2005, they have been heard together and are being decided by a common judgment.
2. Criminal Appeal No. 875 of 2010 and Criminal Appeal No.876 of 2010 have been preferred by the appellants against the judgement and order dated 11.1.2010 passed by Additional District and Sessions Judge/FTC, Aligarh in Sessions Trial No.903 of 2005 and Sessions Trial No.1010 of 2005 by which the appellants have been convicted under Section 302 IPC and awarded life imprisonment with a fine of Rs.10,000/- and in default six months additional simple imprisonment.
3. We have heard Sri Araf Khan, learned counsel for the appellants in both the appeals; and Sri H.M.B.Sinha, learned AGA for the State and perused the record of the case.
4. The prosecution story in a nutshell is that on 12.3.2005 at about 22.30 hours, Narayan Singh (PW-1) lodged FIR of the present case under Section 302 IPC against appellants at Police Station Quarsi, District Aligarh vide Case Crime No. 193 of 2005 with the allegation that in the evening of 12.3.2005, at about 7.30 PM, the appellants took away his son Suresh @ Sanju (deceased) and they returned back at about 8.30 PM without the deceased; and that when they were asked about the deceased, they provided no satisfactory answer. As a result, the informant (PW-1) along with his sons Mukesh Kumar (PW-2), Pawan (PW-3) and others made a search for the deceased. On search, dead body of the deceased was found, at about 9.00 PM, in the wheat field of Vijai Pal. The body had several visible injuries. In the FIR it was alleged that informant’s son Suresh @ Sanju was murdered by the appellants. The motive disclosed in the FIR was that the accused (appellants) had suspicion that the deceased was in an illicit relationship with Vimlesh, the sister of Dinesh (appellant of Criminal Appeal No.875 of 2010).
5. After FIR, during the course of investigation, on 13.3.2005, the Investigating Officer prepared a recovery memo (Ex. Ka-3) with regard to a love letter (material Ext.1) from the wallet of deceased found in his pocket. This letter is alleged to have been written by Vimlesh, the sister of Dinesh (appellant of Criminal Appeal No.875 of 2010). The Investigating Officer also recovered cash of Rs. 154/- from the wallet of the deceased, which was handed over to the mother of the deceased in respect of which, a separate recovery memo (Ex. Ka-2) was prepared. On the same day i.e., on 13.3.2005, one ‘Lota’, Glass (Tumbler) and slippers were also recovered from the place of the incident in respect of which, the Investigating Officer prepared a recovery memo (Ex. Ka-4). Recovery memo (Ex. Ka-5) was with regard to recovery of bloodstained and plain soil.
6. During investigation, on 1.4.2005 co-accused Bhoora (appellant no.2 of Criminal Appeal No.876 of 2010) was taken to police custody remand and on his pointing out bloodstained rope and a wooden stick (danda) was recovered from near a temple in respect of which, the Investigating Officer prepared recovery memo (Ex. Ka-8). After investigation, charge sheet was submitted against the appellants on which cognizance was taken and the case was committed to the Court of Session. The trial court framed charges on 15.12.2005 against the appellants. Appellants did not plead guilty and claimed trial.
7. During trial, prosecution examined six witnesses. PW-1 (Narayan Singh ), PW-2 (Mukesh Kumar) and PW-3 (Pawan) are the witnesses of fact whereas rest of the prosecution witnesses are formal witnesses. After recording the prosecution evidence, trial court examined the appellants under Section 313 Cr.P.C. and convicted them under Section 302 IPC on the basis of evidence produced by the prosecution.
8. Learned counsel for the appellants contended that without a proper appreciation of the evidence available on record, trial court convicted the appellants. He further contended that there are material contradictions and omissions in the ocular version of all the three witnesses of facts, namely, Narayan Singh (PW-1), Mukesh Kumar (PW-2) and Pawan (PW-3). According to him, the testimony of Narayan Singh (the informant) (PW-1) and Mukesh Kumar (PW-2), is of the deceased being last seen with accused whereas, on the other hand, Pawan (PW-3) claims to be a witness of the appellants causing injuries to the deceased Suresh @ Sanju. The defence counsel submits that the testimony of PW-3, namely, Pawan, runs contrary to the version of the FIR as well as the version of PW-1 (the informant) Narayan Singh and PW-2 (Mukesh Kumar). Similarly, the testimony of PW-1 and PW-2 is contrary to the testimony of Pawan (PW-3). Therefore, on the basis of such contradictory evidence, lower court committed grave error in convicting the appellants.
9. Learned defence counsel further argued that according to Pawan (PW-3), Mahipal had also witnessed the appellants assaulting the deceased Suresh @ Sanju but prosecution did not produce Mahipal, this casts a serious doubt on the prosecution case. Further, the incriminating circumstance of the deceased being last seen with the accused was not put by the trial court to any of the appellants while recording their statement under Section 313 Cr.P.C. and, therefore, the conviction of the appellants is bad and order of conviction is liable to be set-aside.
10. Per contra, learned AGA for the State contended that the prosecution has proved its case beyond reasonable doubt and there is no material contradiction or omission in the testimony of PW-1, PW-2 and PW-3 and, as murder weapon was also recovered on the pointing out of one of the accused, therefore, trial court rightly convicted the appellants on the basis of testimony of PW-1 (Narayan Singh) (the informant) PW-2 (Mukesh Kumar) and PW-3 (Pawan). Similarly, on the basis of the evidence of PW-3 (Pawan), the testimonies of PW-1 (Narayan Singh) and PW-2 (Mukesh Kumar) cannot be discarded.
11. Learned AGA further submitted that even if the circumstance of last seen was not put while recording the statement of appellants under Sections 313 Cr.P.C., no prejudice was caused to them and, therefore, on this ground, conviction of the appellants would not vitiate.
12. Before analysing the prosecution evidence in detail, it is necessary to briefly notice the testimony of prosecution witnesses examined before the trial court.
Prosecution witnesses
13. Prosecution has examined Narayan Singh as PW-1, who is the informant of the present case and father of deceased Suresh @ Sanju. This witness stated before the trial court that on 12.3.2005 at about 7.00 PM in the evening appellants took away his son, Suresh @ Sanju (deceased), from his house in his presence and all the appellants returned back at about 8.00 PM, but his son Suresh @ Sanju did not return back, when he asked the appellants about his son, they did not provide any satisfactory answer and, therefore, he started searching for his son, Suresh @ Sanju, along with his other sons, namely, Mukesh Kumar (PW-2) and Pawan (PW-3), and other villagers; upon search, at about 9.00 PM, dead body of Suresh @ Sanju was found lying in the wheat field of Vijay Pal. This witness almost repeated the version of FIR. In his statement, he further stated that about three years before, accused Bhura along with others had caused fire arm injuries to his son, Suresh @ Sanju (deceased). This witness proved written report (Ext. Ka-1). This witness also stated that after the FIR police arrived at the spot but as it had got late, inquest was conducted in the morning and during inquest, from the pocket of his son Suresh @ Sanju (deceased), a love letter (material Ex.-1) and Rs.154/- were recovered. The recovered letter was of Vimlesh, who addressed it to his son, Suresh @ Sanju (deceased). This witness in his cross examination stated that Vimlesh is the sister of accused persons, namely, Perveen, Bhura and Dinesh. This witness proved recovered love letter as material Ex.1. During his cross-examination this witness identified the ‘lota’, glass (tumbler) and slippers of his deceased son (Suresh @ Sanju) and proved the same as material Exts. 2 to 6.
14. In his cross-examination, this witness stated that co-accused Parveen @ Bachcha and Dinesh are real brothers whereas Bhura is their cousin and Satyaveer is brother-in-law (Bahoni) of Bhura and that Satyaveer is a resident of Bulandshahar and his village is about 40 KM away. PW-1 denied the suggestion that after the case under Section 307 IPC, and before the present case, relationship with the appellant was cordial. This witness further stated that when his son went along with the appellants then, at that time, he and Mukesh Kumar (PW-2) and other family members were at home.
15. In his cross-examination, this witness stated that none of his family members including his son Suresh @ Sanju (deceased) had dinner but he cannot say whether Sanju ate during day. He stated that generally he and his family members have dinner at about 9.00 PM. This witness also disclosed that dead body of his son Suresh @ Sanju was found lying in a field which was about ¼ kilometer away from his house. According to him, the field where body was found had standing crop of wheat, which was around 1-2 meters in height and that Pawan (PW-3) and one Shiv Kumar (not examined) were the first to notice the body.
16. In his cross-examination, this witness stated that after discovering the body, he returned back and got the report written from one Subhash Chandra and left his house at about 9.30 PM to lodge the report with the police and arrived at the Police Station at about 10.30 PM. This witness also stated that body of his son was taken away by the police, at about 11.30 PM in the night, to the police post by ‘Jugad’ (a type of vehicle), which belonged to Keshav Dev. He stated that he and his family members as well as other villagers went to the Police Post (Police Chowki) with the body. In reply to a question as to whether the inquest report was prepared on 13.3.2005 or not, this witness answered that in his presence, in the night of 12.3.2005, the Police had arrived and some documentation was done and in that night body was taken away and on that night he had put his thumb impression on the inquest report.
17. This witness denied the suggestion that in the night, at about 9-10 PM, he gave a report against unknown persons. This witness upon suggestion with regard to his enmity with others, stated that he contested a case with other villagers, namely, Sahab Singh, Sarnam Singh and Binnami Singh and in that case accused persons were convicted. Those persons had committed murder of his daughter. This witness stated that he was not aware about the name of Vimlesh tattooed on the arm of his deceased son.
18. Next witness examined by the prosecution was Mukesh Kumar (PW-2), who is elder brother of the deceased Suresh. This witness almost repeated the same version as stated by his father Narayan Singh, the informant, (PW-1). This witness also stated that appellants had taken away the deceased Suresh at about 7.30 PM and on search, at about 9.00 PM, the body of the deceased was found lying in the wheat field of Vijay Pal. This witness added by stating that 3-4 years ago, appellant- Bhura and one Rajveer and Guddu had opened fire upon Suresh (deceased) as the sister of appellant- Bhura, namely, Vimlesh, used to visit his house to meet the deceased Suresh @ Sanju. As per this witness, in this regard, a case was registered, which is still pending; and due to this, the appellants killed his brother Suresh. This witness stated that on the date of incident, his brother Suresh (deceased) had not taken food and he did not consume any food in the morning. This witness stated that he, his father (PW-1), his brother Pawan Kumar (PW-3) and his mother went in search of Suresh (deceased). PW-2 stated that the written report of the present case was written by a Police Constable at the Police Station on the dictation of his father (PW-1). This witness also stated that ‘Daroga ji’ has taken away the dead body at about 11.00 PM in the night. He stated that he went along with dead body and the dead body was taken away to Patwari Nagla, which is about 3 KM away from his village, and at Patwari Nagla the body was kept for about 5 hours where he remained with the Police. The body was kept at Police Post (Chowki) of Patwari Nagla and from Patwari Nagla, the body was dispatched at about 4.00 AM in the morning. The dead body was taken on a ‘Jugad’ (type of local vehicle) which was of his uncle Keshav Dev. He stated that from Patwari Nagla the body was taken on Jugad to Aligarh, where it reached by about 4.30 PM. This witness also, denied the suggestion that after recovery of dead body, somebody informed the Police that unknown persons have committed the murder of his brother Suresh @ Sanju and that the FIR was lodged later. This witness in his cross-examination stated that his brother Pawan (PW-3) was not aware about the death of Sanju (deceased) and that Pawan (PW-3) did not inform him about the incident, rather Mahipal gave information about the incident at about 8.00 PM. On suggestion, this witness stated that it is true that Mahipal (not examined) informed him that the appellants committed murder of his brother Sanju (deceased) and the body was lying in the field of Vijai Pal and after information he reached the place where dead body was lying.
19. Pawan was examined by the prosecution as PW-3. He is another brother of Suresh @ Sanju (deceased). He claimed himself to be eye witness of the incident. According to him, on 12.3.2005, at about 8 to 8.30 PM, when he and Mahipal were roaming in the forest and arrived near the field of Vijai Pal, they witnessed that appellants were beating his brother Suresh @ Sanju (deceased) and putting a rope on his neck. This witness stated that the appellants threatened him and warned him to go away otherwise they would kill him.
20. According to this witness, when he was returning back to his home, on the way, he met his parents and brother Mukesh Kumar (PW-2). He informed them that the deceased was lying in the field of Vijai Pal. Then they arrived at the spot.
21. This witness stated that Suresh @ Sanju (deceased) was his elder brother and Mahipal (not examined) is also related. In his cross examination, this witness stated that he did not make any attempt to save his brother Suresh @ Sanju (deceased) and his parents met him about 100-150 steps away. This witness stated that the police had taken away the body in a police jeep. According to this witness, he did not accompany the body. However, his father (PW-1) and brother (PW-2) went along with the dead body. This witness in his cross examination, stated that he informed the police that he witnessed the incident and if this fact is not mentioned in his statement recorded by the Investigating Officer, then he cannot give any reason. This witness also stated that the village of appellant Satyaveer is 45-50 kilometer away from his village. This witness further stated that as there was relationship between his brother (deceased) and Vimlesh (the sister of appellants), therefore, his brother was murdered by the appellants.
22. Dr. V.K. Singh was examined as PW-4. He is the person who conducted the post mortem of the body of deceased Suresh @ Sanju on 13.03.2005 at about 3.45 PM. According to this witness, deceased died about a day before and rigor mortis was present on both upper and lower extremities. He found following ante motrem injuries on the body of the deceased Suresh @ Sanju:-
“(1) One lacerated wound 2cm x 1cm bone deep over left side just below ear.
(2) One abraded contusion 8cm x 6cm on left side of temporo parietal region.
(3) One lacerated wound 1cm x 0.5cm bone deep over left side of mandible in middle area.
(4) One abraded contusion 6cm x 4cm on left side of neck extending over left angle of mandible.”
23. According to doctor, left side of mandible was fractured and death was due to coma as a result of ante mortem head injury. The stomach contained 60 ml. food material and small and large intestines were filled with gases, fluids. Doctor also found underlying fracture on temporal parietal bone of the skull. This witness proved the post mortem report as (Ext. Ka-6).
24. According to this witness, the deceased consumed some edible item about 3-4 hours before his death. PW-4 further stated that estimated time of death was about 24 hours before, which may vary either side by six hours.
25. Prosecution examined head constable Bhoop Singh as PW-5. This witness proved chik FIR as (Ext. Ka-7) and also proved G.D. entry of the case as (Ext.Ka-8).
26. Prosecution next examined Senior Sub-Inspector, Manohar Singh Yadav as PW-6, who is the Investigating Officer of the present case. He stated that on information he arrived at the spot and found the dead body in the field of Vijay Pal. This witness stated that due to non arrangement of light, inquest report could not be prepared at night and was prepared on the next day i.e. on 13.05.005 in the morning. This witness proved inquest report and other documents like photonash etc. as (Ext. Ka-9 to Ka-14) This witness also stated that from the pocket of deceased, a love letter (material Ex.1) was recovered. He prepared the recovery memo (Ex. Ka-3) of the said letter and copied the same in the case diary. This witness also stated that from the place of incident, one Lota, Gilas and slipper of the deceased were recovered and in respect of all these items, recovery memo (Ext. Ka-4) was prepared. He also stated that from the spot, plain and blood stained soil was recovered and its recovery memo (Ext. Ka-5) was prepared.
27. According to this witness, he recorded the statements of witnesses and on 01.04.2005 he got the police custody remand of accused Bhoora and on his pointing out one rope and a wooden stick (danda) was recovered from the field of one Khumani Singh near the tubewell. After recovery, the recovery memo was prepared and this witness proved the same as (Ext. Ka-18). This witness also initiated proceedings under Section 82/83 Cr.P.C. against accused Dinesh, as he was absconding, and, after investigation, on 16.04.2005 submitted charge-sheet against accused Parveen @ Bachcha, Bhura and Satyaveer and on 16.07.2005, he filed charge-sheet against accused Dinesh. Till submission of charge-sheet, appellant Dinesh could not be arrested and, therefore, charge-sheet was submitted against him as an absconder. This witness proved both the charge-sheets as (Ext. Ka-19 and Ka-20). This witness stated that during investigation he did not make any inquiry from Vimlesh, the sister of appellants Parveen and Dinesh. According to this witness, he submitted charge-sheet on the basis of circumstantial evidence collected by him during investigation including the statement of Pawan (PW-3), who claimed himself to be an eye witness of the incident. This witness further stated that till third day of the incident, no eye witness came forward except Mahipal (not examined). This witness denied the suggestion that the dead body was taken away in the night from the field of Vijay Pal to police post (chauki) Nagla and kept there for about five hours. According to this witness, Pawan (PW-3) in his statement recorded under Section 161 Cr.P.C. stated that he witnessed that all the appellants were beating his brother (deceased).
28. After the statement of prosecution witnesses, trial court recorded the statement of the appellants under Section 313 Cr.P.C. All the appellants denied allegations made against them. Appellant Parveen @ Bachcha stated in reply to question no. 10 that Vimlesh was not his sister. Appellant, Bhura in his statement stated that earlier also informant lodged a false case against him, in which, after investigation, final report was submitted. This appellant (Bhura) did not state that Vimlesh is not his sister. As per appellant Satyaveer, he was implicated in the present case only because he was brother-in-law (Bahnoi) of appellant Bhura. Appellant Dinesh also denied that Vimlesh is his sister. Trial court did not put any question with regard to the appellant/accused persons having taken away the deceased Suresh @ Sanju on 12.03.2005 at about 7.30 PM from his house and that when they returned back at about 8.30 PM, Suresh @ Sanju (deceased) did not return with them.
29. After recording the statements of appellants under Section 313 Cr.P.C., trial court on the basis of evidence on record found the appellants guilty for the death of Suresh @ Sanju and convicted them under Section 302 IPC.
Analysis
30. In the present case, prosecution examined three witnesses of fact, namely, Narayan Singh (PW-1) informant (father of deceased), Mukesh Kumar (PW-2) and Pawan (PW-3) brothers of deceased. Rest of the prosecution witnesses are formal witnesses.
31. As per the FIR and statements of PW-1 Narayan Singh (informant) and PW-2 Mukesh Kumar, the case was based on circumstantial evidence, but, later, as per the testimony of Pawan Kumar (PW-3), there came direct evidence as, according to him, he witnessed the deceased Suresh @ Sanju being assaulted by the appellants on 12.03.2005 between 8.00 PM and 8.30 PM.
32. Therefore, first we examine the testimony of PW-3, who claimed himself to be an eye witness.
33. Pawan Kumar (PW-3) is the brother of deceased Suresh @ Sanju. According to this witness, on 12.03.2005, at about 8.30 PM, he along with one Mahipal (not examined) were loitering and when he arrived near the field of Vijay Pal, he witnessed the appellants Parveen, Dinesh, Bhura and Satyaveer beating his brother Suresh @ Sanju (deceased). He also stated that the appellants threatened him and when he was returning home, on the way, he met his father (PW-1) and his brother Mukesh Kumar (PW-2). He informed them that Suresh @ Sanju (deceased) was lying in the field of Vijay Pal. This witness further stated that when they arrived at the field of Vijay Pal, they saw the dead body of Suresh @ Sanju (deceased) lying there. This witness nowhere states that Suresh @ Sanju (deceased) went along with appellants on 12.03.2005, at about 7.30 PM, as stated by Narayan Singh (PW-1) the informant and Mukesh Kumar (PW-2). The testimonies of PW-1 Narayan Singh and PW-2 Mukesh Kumar is to the effect that the deceased Suresh @ Sanju was taken away by the appellants on 12.03.2005 at 7.30 PM from home and when, after about one hour, all the appellants returned back but the deceased Suresh @ Sanju did not return, they started searching for him. As per the statement of PW-1 Narayan Singh and PW-2 Mukesh Kumar, during search, PW-3 Pawan Kumar accompanied them. This fact is also mentioned in the FIR. If, PW-3 Pawan Kumar was also searching for the deceased Suresh @ Sanju along with his family members, the possibility of him having witnessed the accused assaulting the deceased is not probable as then he would have informed his family members and they all would have rushed to the spot. Thus, the testimony of PW-3 does not inspire confidence to the extent he claims that he witnessed the deceased being assaulted by the accused-appellants.
34. If we exclude the testimony of Pawan (PW-3), the statements of PW-1 Narayan Singh (informant) and PW-2 Mukesh Kumar remains and, as per their evidence, they are witnesses of the circumstance that the deceased was taken from home and soon thereafter, the deceased was found dead.
35. As to when conviction can be recorded on circumstantial evidence, the law is well settled. The Supreme Court in its celebrated decision in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 has held:-
“153. xxxxx
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
xxxxx
(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.”
36. Keeping these conditions in mind, we shall examine the case in hand. In the present case, prosecution had relied upon following circumstances:-
(A) Last seen evidence i.e. appellants taking the deceased from home and in a short time thereafter, the deceased was found dead with several ante mortem injuries.
(B) Appellants failed to offer any explanation in respect of the manner in which the deceased sustained injuries resulting in his death.
(C) Motive
(D) Long abscondence of appellant Dinesh
(E) Recovery of rope and wooden stick on the pointing out of appellant Bhoora
Last seen evidence
37. The theory of last seen comes into picture where the time gap between the point of time when accused and deceased were last seen together and when the victim is found dead, is so small that possibility of any other person except the accused being the perpetrator of crime becomes impossible. However, ordinarily, last seen evidence is a weak piece of evidence and it requires some corroboration by other evidence.
38. The three Judges Bench of Apex Court in case of Satpal Vs. State of Haryana (2018) 6 SCC 610 in para 6 observed as:-
“6. xxxxx
Criminal jurispredence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused.”
39. Again three Judges Bench of Hon’ble Supreme Court in case of Digamber Vaishnav and another Vs. State of Chhattisgarh (2019) 4 SCC 522 observed in paragraph No.40 as follows:-
” 40. xxxxxx
It is settled that the circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence. If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen along with the accused at or near about the place of occurrence, the needle of suspicion would certainly point to the accused being the culprits and this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence does not inspire the confidence or is not trustworty, there can be no conviction. To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of dead body”
40. In the present case, Narayan Singh PW-1 is the informant and father of Suresh @ Sanju (deceased). This witness stated that on 12.03.2005 Suresh @ Sanju (deceased) was taken by the appellants from his house at about 7.30 PM in front of him and when, at about 8.30 PM, appellants returned back and his son Suresh @ Sanju (deceased) did not return, then, when he, despite inquiry, did not receive proper reply from the appellants, he started search for his son along with Mukesh Kumar (PW-2), Pawan (PW-3) and other family members and at about 9.00 PM, the dead body of Suresh @ Sanju was found in a field which was about ¼ Kilometer away from his house.
41. Similar statement has been given by Mukesh Kumar (PW-2), who is the elder brother of deceased Suresh @ Sanju (deceased). These two prosecution witnesses, namely, Narayan Singh PW-1 and Mukesh Kumar PW-2 not only proved the theory of last seen but they withstood gruelling cross-examination and remained intact.
42. Thus, from the statements of Narayan Singh (PW-1) and Mukesh Kumar (PW-2), it is proved that appellants took away the deceased Suresh @ Sanju from his house on 12.03.2005 at about 7.30 PM and within an hour, they returned back without Suresh @ Sanju (deceased) and failed to offer any explanation in this regard to the informant Narayan Singh (PW-1) and at about 9.00 PM i.e. within 1 and ½ hour dead body of Suresh @ Sanju was recovered from a field which was only ¼ Kilometer away from his house i.e. the place where appellants were last seen together with the deceased.
43. The prosecution therefore succeeded in proving the circumstance of last seen against the appellants beyond reasonable doubt and as the proximity of the time between the deceased being last seen together with the appellants and the death of the deceased is so close that it completely rules out involvement of any other person to have committed the crime than the appellants. Therefore, last seen circumstance/evidence in the present case is a clinching circumstance against the appellants which was duly proved by the prosecution.
Motive
44. The motive in case of circumstantial evidence has its own importance and it creates additional link against the accused.
45. In the case at hand, prosecution has established the motive. From the very beginning since lodging of the FIR, it is the case of the prosecution that Vimlesh, the sister of appellants, used to visit the house of Suresh @ Sanju (deceased) and, therefore, the appellants eliminated him as they suspected that deceased Suresh @ Sanju was having an affair with Vimlesh.
46. Prosecution in the present case also relied upon recovery of a love letter, written by Vimlesh, from the pocket of deceased Suresh @ Sanju to prove that Vimlesh was having love affair with deceased Suresh @ Sanju. However, as Vimlesh was not examined before the trial court and there is no evidence to prove that the letter was written by her, the evidence of recovery of letter from the pocket of deceased, in our view, cannot be used against the appellants.
47. However, PW-1 Narayan Singh, the informant (father of deceased) and PW-2 Mukesh Kumar (elder brother of deceased) through their testimony established that Vimlesh, sister of appellant Bhura and cousin sister of appellants Parveen and Dinesh, used to visit their house to meet Suresh @ Sanju (deceased) and due to this reason the appellants committed murder of Suresh @ Sanju as they were having suspicion that there was a relationship between them.
48. There is one more clinching circumstance that surfaced during investigation that is when the body of Suresh @ Sanju (deceased) was found, on his arm, the name of Vimlesh was embossed by a tattoo. This fact was proved by Narayan Singh PW-1 as well as Mukesh Kumar PW-2 in their testimonies and also by PW-6 Manohar Singh Yadav, the Investigating Officer. This also suggests that deceased and Vimlesh were in some sort of a relationship with each other, sufficient to arouse suspicion.
49. Thus, in our view, prosecution has been successful in proving the motive for the crime against the appellants.
Abscondence
50. One more incriminating circumstance in the present case is that appellant, Dinesh was absconding for a long period and charge-sheet was filed against him by PW-6 Manohar Singh Yadav as absconder and during investigation process under Section 82/83 Cr.P.C. was also issued against him. This fact is an additional circumstance, which also completes the chain of circumstances, at least, in respect of appellant Dinesh. As per the judgment of Supreme Court in case of Satpal (supra) if last seen evidence is coupled with other circumstances, such as abscondence of accused persons, then, in absence of proper explanation, on the basis of last seen evidence, conviction can be recorded.
Laches on the part of Investigating Officer
51. Learned counsel for the appellants vehemently argued that from the perusal of the statements of all the prosecution witnesses, namely, Narayan Singh (PW-1), Mukesh Kumar (PW-2) and Pawan (PW-3), it is apparent that police after registration of the FIR arrived at the spot in the night of 12.03.2005 and in the night they took away the body of deceased to police post (Chowki) from the place of incident. These witnesses also stated that they accompanied the dead body up to the police post, but, PW-6, the Investigating Officer, namely, Manohar Singh Yadav, states that police did not take away the body in the night of 12.03.2005 and the body was lying at the place of incident in the field of Vijay Pal till the morning and, thereafter, in the morning, the inquest report was prepared, therefore, this shows that prosecution has not come with clean hand hence no reliance can be placed on such prosecution evidence.
52. The law is well settled that no benefit can be given to the accused merely on the ground of laches of Investigating Officer or any illegality committed by him, if evidence of prosecution witnesses is reliable and does not suffer from any infirmity. Supreme Court in the case of C. Muniappan and others Vs. State of Tamil Nadu (2010) 9 SCC 567 held that defect in investigation by itself cannot be a ground of acquittal.
53. In the present case, as prosecution case is based on circumstantial evidence, therefore, if, any illegality or laches in respect of taking away the dead body has been committed by the Investigating Officer, it hardly affects the prosecution case and does not cause any prejudice to the appellants.
Recovery of rope and wooden stick
54. The prosecution case also relies upon the circumstance of recovery by claiming that on 01.04.2005, when appellant Bhura was taken by the police on remand, on his pointing out a rope and wooden stick was recovered, which was alleged to have been used in commission of the crime. But as this recovery was made from open field of Arhar crop, accessible and visible to all, and both the recovered articles are common and found in every household, in absence of forensic evidence linking the articles to the crime, in our view, recovery of rope and wooden stick is of no significance and cannot be utilised as an incriminating circumstance against appellant Bhura.
55. Learned counsel for the appellants during the course of argument further submitted that although in the evidence of prosecution witnesses, it has surfaced that Vimlesh is the real sister of Bhoora and cousin sister of accused/appellants Parveen @ Bachcha and Dinesh, but in their statements recorded under Section 313 Cr.P.C. appellants Parveen and Dinesh denied this fact. From the perusal of the statements of appellants Parveen @ Bachcha and Dinesh under Section 313 Cr.P.C., it appears that although, in reply to question number 10, they denied that Vimlesh is not their sister, but appellant Bhura did not deny that Vimlesh is not his sister, therefore, this argument advanced by learned defence counsel would be of no help as Bhura is cousin brother of appellants Parveen @ Bachcha and Dinesh and, therefore, Vimlesh would be their cousin sister.
Statement under Section 313 Cr.P.C.
56. Learned counsel for the appellants submitted that as the evidence in respect of last seen was not put to any of the appellant while recording their statement under Section 313 Cr.P.C, therefore, it cannot be used against them. In this regard, learned counsel for the appellants placed reliance on the judgment of Supreme Court in case of Shaikh Maqsood Vs. State of Maharashtra (2009) 6 SCC 583. In this case, the Supreme Court in paragraph no.9 held that as no question was put to the accused that he was author of the crime, the accused cannot be convicted. Here, the questions put did indicate that the accused-appellants were the author of the crime.
57. The law in respect of Section 313 Cr.P.C. is now well settled. Ordinarily, an incriminating circumstance appearing against an accused if not put to him during his examination, under Section 313 Cr.P.C., is to be eschewed from consideration, but if facts of the case suggest that no prejudice was caused by not putting such circumstance to the accused while recording his statement under Section 313 Cr.P.C., then no benefit is to be extended to him.
58. Apex Court in case of State of Rajasthan Vs. Kashi Ram (206) 12 SCC 254 in paragraph no. 25 observed that if any question in respect of last seen evidence was not put to the accused in his statement recorded under Section 313 Cr.P.C. and if record of the case shows that prosecution witnesses were extensively cross examined by the defence counsel in presence of accused, then mere omission to put such question while recording the statement under Section 313 Cr.P.C. would not cause any prejudice to the accused particularly, when they are fully aware as to what is the incriminating circumstance being relied upon by the prosecution against them.
59. In the present case, we find that all the prosecution witnesses of fact, namely, Narayan Singh PW-1, Mukesh Kumar PW-2 and Pawan PW-3, were extensively cross examined by the defence and a suggestion was also put to Narayan Singh PW-1, during his cross-examination, that deceased Suresh @ Sanju did not go with the appellants, which was denied by him, therefore, in our view, the appellants were fully aware of the incriminating circumstance with regard to the last seen theory and they could have offered their explanation. Hence, if question in respect of last seen theory was not put to appellants during their examination under Section 313 Cr.P.C., this, by itself, did not cause any prejudice to them and, therefore, this evidence cannot be excluded from consideration.
60. Recently, a three Judges Bench of Apex Court in case of Manoj Suryavanshi Vs. State of Chhatisgarh (2020) 4 SCC 451, in paragraph no. 19, held that if while recording the statement of accused under Section 313 Cr.P.C. the deposition of the witness, who provides the evidence of last seen, is specifically referred to the accused, then not asking a specific question in respect of last seen evidence appearing in the said deposition would not prove fatal to the prosecution case.
61. In the present case, while recording the statement under Section 313 Cr.P.C. of the appellants, trial court referred the evidence of PW-1 Narayan Singh and PW-2 Mukesh Kumar as well as the FIR to all the appellants, therefore, in view of the judgment in Manoj Suryavanshi case (supra), no benefit can be extended to the accused/appellants merely because no specific question in respect of last seen circumstance emanating therefrom was put to the appellants.
62. One more circumstance exist in the present case against the appellants, that is the appellants failed to offer any explanation as to how and when they departed company of the deceased. As prosecution has proved that appellants and deceased were last seen together alive within couple of hours from recovery of dead body of the deceased, as per section 106 Evidence Act, the appellants were under an obligation to provide explanation in this regard, as this fact was exclusively in their knowledge. The Supreme Court in the case of Kashi Ram (supra) elaborately discussed this aspect and observed in para 23 as follows:-
“23. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, 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. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatiable with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. xxxxxx”
Thus, failure on the part of the appellants to offer an explanation as to how and when they parted company of the deceased provides an additional link to the chain of circumstances pointing towards the guilt of the appellants.
63. The situation emerges thus, that there is clear evidence of the accused-appellants having taken the deceased from home and within 1 and ½ hour thereafter, just few hundred meters away, the body of the deceased, with multiple injuries is found, and that there is no explanation on the part of appellants either in respect of the circumstances that led to infliction of those injuries resulting in the death of deceased Suresh @ Sanju or as to how and when they (the appellants) parted the company of the deceased.
64 In the present case although we noticed some contradictions and omissions in the testimonies of prosecution witnesses but as these contradictions and omissions do not shake the foundation of the prosecution case and, in our considered view, are not material therefore, much importance cannot be attached to them.
65. In view of the discussion made above, in our considered view, prosecution has been successful in proving the following circumstances against appellants beyond reasonable doubt:-
(i) Appellants took the deceased from home and within an hour and a half, the deceased was found dead at a short distance, from where he was taken by the appellants, with injuries on his body suggesting a case of homicide.
(ii) Appellants failed to provide any explanation as to how and when they parted company of the deceased and as to the manner in which the deceased suffered injuries.
(iii) Motive for commission of crime; and
(iv) Abscondence of appellant Dinesh.
66. In our considered view, all the above circumstances proved by the prosecution form a chain of circumstances against the appellants on the basis of which, it can safely be concluded that appellants were the persons, who committed the murder of deceased Suresh @ Sanju and except their guilt no other hypothesis can be inferred.
67. Consequently, both the appeals are dismissed. The judgment and order of conviction and sentence passed by the trial court is affirmed. The appellants are in jail and they will serve out the sentence awarded by the trial court.
68. Let a copy of this order be sent to the court below for information and compliance.
