RAMBRAKSH @ JALIMversusSTATE OF CHHATTISGARH

                         [2016] 2 S.C.R. 599



                      RAMBRAKSH \a! JALIM                                 A
                                  v.
                    STATE OF CHHATT!SGARH
                  (Criminal Appeal No. 462of2016)
                            MAY12,2016                                    B

    [JAGDISH SINGH KHEHAR AND C. NAGAPPAN, JJ.)
       Penal Code, 1860- ss.302/34 ands. 201-Murder- Conviction
  on the basis of last seen theory - Sustainability of - On facts,
· commission of murder of R - Prosecution case based upon                 c
  circumstantial evidence and the last seen theory - Conviction and
  sentence of accused no. 2 u/s.302134 ands. 201, by courts below -
  On appeal, held: Deceased was last seen alive in the company of
  accused on the fateful day and after seven days the bones and
  clothes allegedly belonging to deceased were noticed and thereafter,
  seized from the field - Seizure/recovery was not pursuant to any        D
  information furnished by the accused - Courts below convicted
  accused No.2 on the basis of last seen evidence, the correctness of
  which is doubtfiil - Further, there was failure of the prosecution to
  prove the death of R either homicidal or otherwise - There was
  improvement in the testimony of deceased's wife - No explanation
                                                                          E
  by the prosecution for the inordinate delay in lodging the complaint
  and registering the case.- Independent witnesses examined by the
  prosecution did not support the case - Thus, conviction and sentence
  of the accused no. 2 not sustainable and set aside - Evidence.
      Evidence - Last seen theory - Conviction on the basis of -
                                                                          F
 When - Held: 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 deceased is found dead, is so small that
 possibility of any person other than the accused being the perpetrator
 of the crime becomes tmpossible - To record conviction, last seen
 together itself would not be sufficient and the prosecution has to       G
 complete the chain of circumstances to bring home the guilt of the
 accused.
      Allowing the appeal, the Court
      HELD: 1.1 The prosecution case rests only upon the
 circumstantial evidence. The Sessions Judg~ as well as the High          H
                                  599
600           SUPREME COURT REPORTS                      [2016] 2 S.C.R.


A  Court mainly relied upon the evidence of the wife of the deceased
   PW3 to hold the appellant guilty of the charges. PW3 in her
   complaint as well as her statement before the police has not told
   that she witnessed the occurrence during which both the accused
   assaulted her husband with lathi and Danda. Only in her testimony
   before the Court she claimed to have witnessed the occurrence.
 B
   The High Court rightly ignored the improved part of her testimony
   and placed no reliance on it. [Para 7) [604-F; 605-D-E]
           1.2 The bones, articles, clothes and shoes allegedly
      belonging to R were recovered on 15.10.1992. Morgue given by
      PW 3 was recorded and the FIR came to be registered on
 c    15.10.1992. There is absolutely no explanation given by the
      prosecution for the inordinate delay in lodging the complaint and
      registering the case. The independent witnesses examined by
      the prosecution did not supported the case. As per last ~een theory
      projected by the prosecution the deceased was last seen alive in
D     the company of the appellant on 7.10.1992 and after 7 days the
      bones and clothes allegedly belonging to the deceased came to
      be noticed and thereafter seized from the field. They were not
      seized/recovered pursuant to any information furnished by the
      accused. [Para 8) [605-F-G)

 E      1.3 The investigation officer seized the bones from the field
   and sent them for autopsy. PW6 in his report gave an account of
   the bones forming the skeleton. Thereafter they were sent to
   Medical College, and PWlO-doctor examined them and gave
   opinion stating that the bones are of human origin and they
   belonged to male aged between 25 to 40 years and there were no
 F marks of injury in any of the bones and the cause of death cannot
   be said and the death could have occurred within 6 months prior
   to the date of examination. The Investigation Officer did not take
   any attempt to conduct DNA analysis of bones to prove that the
   skeleton seized was that of R. The prosecution has failed to prove
 G the death of R either homicidal or otherwise. [Para 9) [605-H;
   606-A-C]
        1.4 A conviction cannot be recorded against the accused
   merely on the ground that the accused was last seen with the
   deceased. In other words, a conviction cannot be based on the
   only circumstance oflast seen together. Normally, last seen theory
 H
    RAMBRAKSH @ JAL!M v. STATE OF CHHATTlSGARH                              601


comes into play where the time gap, between the point of time                A
when the accused and the deceased were seen last alive andowhen
the deceased is found dead, is so small that possibility of any
person other than the accused being the perpetrator of the crime
becomes im possibJe. To record a conviction, the last seen
together itself would not be sufficient and the prosecution· has to
                                                                             B
complete the chain of circumstances to bring home the. guilt of
the accused. [Para 10] [606-C-E]
     1.5The Sessions Court as well as. the High ·Court convicted
the appellant/ accused No.2 on the basis. of last seen evidence,
the correctness of which is also doubtful. The High Conr.t failed
to appreciate the said fact and erred.in affirming the.judgment of           c
conviction passed by the Sessions Court. The conviction. and
sentence of the appellant. cannot be sustained and is set aside.
[Para 12], [607cF-G)
      Krishnan v. State of Tamil Nadu (2014) 12 SCC 279:
      2014 (9) SCR 340 - referred to.                                        D

                        Case Law Reference
    2014 (9) SCR 340             referred to            Para 11
     CRlMINALAPPELLATE JURISDICTION: Criminal Appeal No.
462 of20 I 6.                                                                E
     From the Judgment and Order dated 25 .07.2014 of the High Court
of Chhattisgarh at Bilaspur in Criminal Appeal No. 4 70 of 200 I.
    . Vikrant Singh Ba is, Yogesh Tiwari, Advs. for the Appellant.
    C. D. Singh, Ms. Sakshi Kakkar, Sandeepan Pathak, Advs. for the          F
Respondent.
     The Judgment of the Court was delivered by
     C. NAGAPPAN, J. I. Leave granted. This appeal is preferred
against the judgment dated 25. 7.2014 of the High Co ti rt of Chhatisgarh
atBilaspur in Criminal Appeal No.470 of2001.                                 G
      2. The appellant Rambraksh@Jalim was accused No.2 and Bechan
Ram was accused No.I .in the case in Sessions Trial No.133of1993, on
the file of Additional Sessions Judge, Surajpur, and they were tried for
the offences under Section 302 read with 34 and Section 201 of Indian
                                                                             H
602            SUPREME COURT REPORTS                         (2016] 2 S.C.R.


A     Penal Code. The trial court acquitted accused No. I Bechan Ram and at
      the same time convicted accused No.2 Rambraksh and sentenced him
      to undergo imprisonment for life and to pay a fine of Rs.500 and in
      default to undergo rigorous imprisonment for five months for the offence
      under Section 302 IPC and further sentenced him to undergo two years
      rigorous imprisonment and to pay a fine ofRs.1.00 in default to undergo
B
      rigorous imprisonment for one month for the offence under Section 20 I
      !PC and ordered the sentences to run concurrently. Aggrieved by the
      conviction and sentence accused No.2 Rambraksh preferred criminal
      appeal and the High Court dismissed the same. Challenging the said
      judgment the present appeal is preferred.
c      3. The case of the prosecution in a nutshell is as follows~ On
  7.10.1992 appellant herein/accused No.2 Rambraksh went to the house
  of deceased Ramsevak at 12.00 noon and asked to go with him to
  Ambikapur. Ramsevak refused saying that he does not have money and
  accused No.2 ·assured that he has money and he would come at night
D and they would go to Ambikapur by the first bus in the early morning.
  Thereafter healong with accused No. I came to the house of Ramsevak
  at 11.00 p.m. and told him that they will proceed towards chowki from
  where they will board the bus to Ambikapur. Ramsevak went with
  accused and thereafter did not return home. On 14. l 0.1992, Rajesh son
  of Ramsevak inquired about his father to his mother PW3 Dasmatiya
E Bai and she told him that his father had gone with accused to Ambikapur
  and then Rajesh infonned her that he had gone with Kamlesh and PW5
  Banshidhar to their field and he noticed clothes, gamcha and shoes of
  his father in the field. PW3 Dasmatiya Bai along with her son went to
  the said place and found the articles of her husband and on noticing birds
F flying near one place they went there and she found skeleton remains
  of her husband. She went to Chandni Police Station and lodged Exh.P2
  morque and the police recorded Morque vide Exh.Pl. The investigation
  officer visited the scene of occurrence and conducted inquest on the
  scattered bones vide Exh.PS. Report vide Exh. P4. He seized from the
  spot one.bamboo stickvide Exh.P6, pair of shoes vide Exh.P7, towel,
G pant, shirt, banjan and underwear vide Exh.P8, Bloodstained and plain
  soil vide Exh.P9, Hairs found on the spot vide Exh.PIO. The human
  bones i.e. skull, jaw, legs and ribs were seized from the spot vide Exh.P\ 3.
  He sent the bones of dead body for autopsy and PW6 Dr. Arvind Bhat
  on examination found the following :
 H
   RAMBRAKSH @ JALIM v. STATE OF CHHATTISGARH                                 603
                             re.
                    NAGAPPAN, J.l


   "     I skull bone with 13 teeth.                                           A
         2 humerus bones
         I vertebral column broken in three pieces each attached with
         each other with left femur attached with pelvis (detail of
         vertebral colum, sacrum, S lumber vertebrae, 12 thoracic
         vertebrae),                                                           B
         One mandible attached 7 leech
         Two broken scapula
         Nine ribs
         Two broken long bones (one simulating to tibia and one simulating
         to femur)                                                             c
         One radio ulna bones
         One broken ulna
         3 vertebrae
         2 detached tooth
                                                                               D
         4 pieces of broken bones."
     Thereafter, dehati nalishi was recorded and FIR was registered
vide Exh.P.18. Spot map was prepared vide Exh. Pl9. Bones were sent
to Medical College, Raipur and PW I 0 Dr. Sapan Kumar Das examined
the bones vide Exh.P23 and opined as follows:                                  E
     (a)These bones are of human origin
     (b)Sex-Male
     (c)Age-Between 25 to 40 years
     (d)No marks of injury present to any of the bones                         F
       ( e )Cause of death cannot be said
       (f) me lapse since death-within 6 months of the date of examination.
          4. In the course of investigation accused· No. I Bechan Ram
was arrested and he made disclosure statement leading tq recovecy of           d
banjan and towel vide Exh.PI I, P16 and Pl7. The accused No.2 was
arrested and he made disclosure statement leading to recovery of stick ·
and clothes vide Exh.P12, Pl4 and PIS. The seized articles were.sent
for chemical examination vide Exh.P 19. Off completion ofinvestigation
charge-sheet was filed against both the accused.
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604            SUPREME COURT REPORTS                           [2016] 2 S.C.R.


A          5. In the trial prosecution examined ten witnes>es and the accused
      were examined under Section 313 of Cr.P.C. and their statements were
      recorded. No defence witness was examined. The trial court acquitted
      accused No.I and convicted and sentenced accused No.2 as stated
      supra. The appeal preferred by him came to be dismissed and aggrieved
      by the same accused No.2 has preferred the present appeal.
B
            6. The learned counsel for the appellant contended that it was
      alleged that deceased Ramsevak was last seen alive in the company of
      the appellant on 7. I 0.1992 and bones were noticed in the field and seized
      on 14.10.1992 namely 7 days after such last seen theory and there is
      long time gap and in the absence of any other corroborative piece of
c     evidence the conviction of the appellant only on the basis oflast seen
      theory is not sustainable law. It is his further submission that prosecution
      has not even established.the death ofRamsevak and there is no evidence
      adduced by the prosecution to show that bones recovered were those of
      deceased Ramsevak and the medical evidence does not in any way
D     advance the prosecution case. Lastly, it is contended that there was
      inordinate delay of7 days in filing the complaint and PW3 Dasmatiya
      Bai made material improvements in her testimony before the court and
      the testimony cannot be relied on. Per contra the learned counsel appearing
      for the respondent State contended that the prosecution has established
      through evidence of PW3 Dasmatiya Bai that her husband Ramsevak
 E    was taken from house by the appellant and in the absence of any
      explanation from the appellant as to when he parted company, the Courts
      below rightly convicted the appellant for the offence of murder and the
      judgment warrants no interference.
             7. The prosecution case rests only upon the circumstantial evidence.
 F    The Sessions Judge as well as the High Court mainly relied upon the
      evidence of the wife of the deceased PW3 Dasmatiya Bai to hold the
      appellant guilty of the charges. PW3 Dasmatiya Bai in her complaint as
      well as in the statement given to the police during investigation has stated
      that on 7~10.1992 at about 12.00 noon the appellant/accused No.2 came
 G    to their house and told her husband Ramsevak to come with him to
      Ambikapur and left the place by saying that he would return with money
      in the night and they would leave by the early morning bus to Ambikapur.
      It is her further testimony that both the accused came to their house in
      the night at about I 0.00 p.m."and took her husband Ramsevak with them
      at 11.00 p.m. for Ambikapur and after that her husband Ramsevak never
 H    returned home. She has further sta.ted that on 14. I 0.1992 her son Rajesh
     RAMBRAKSH @ JALIM v. STATE OF CHHATTISGARH                                 605
                   re. NAGAPPAN, J.l
 inquired about the Whereabouts of his father and informed her that he           A
 went to the field of Kamlesh where he saw gamcha, shirt, pant and
 shoes ofhis·father. Thereafter, she went along with him and found the
 articles of her husband lying in torn condition in the field and on noticing
 the flying of birds near that place she went and saw the bones of dead
·body lying scattered and she identified the same as that of her husband
                                                                                 B
 and she went to the Police Station and lodged complaint. When she
 gave evidence as· PW3 in the trial before the Court she testified that the
 accused came to their house at night and took her husband to Ambikapur
 and after they left she heard scream of her husband .and she ran to the
 place and saw the appellant/accused No.2 Rambraksh and accused No.1
 Bechan Ram assaulting her husband Ramsevak by lathi and Danda and               c
 when she tried to intervene, she was driven away and in the morning
 while going to police chowki she saw her husband Ramsevak lying dead
 in the field and she informed the Munshi.at Chandni Police Station and
 she was asked to come later when called and thereafter she waited for
 7 days and then again went to the Police Station and lodged the complaint.
                                                                                 D
 As already stated PW3 Dasmatiya Bai in her complaint as well as .her
 statement before the police has not told that she witnessed the occurrence
 during which both the accused assaulted her husband with lathi and
 Danda. Only in her testimony before the Court she claimed to have
 witnessed the occurrence. The High Court has rightly ignored the
 improved part of her testimony and placed no reliance on it.                    E
       8. The bones, articles, clothes and shoes .allegedly belonging to
 Ramsevak were recovered on 15.10.1992. Exh.P2 Morgue ·given by
 Dasmatiy.a Bai was recorded and the FIR came to be registered on
 15.10.1992. There is absolutely no explanation given by the prosecution
 for the inordinate delay in lodging the complaint and registering the           F
 case. The independent witnesses examined by the prosecution have not
 supported the case. As per last seen theory projected by the prosecution
 the deceased Ramsevak was last seen alive in the company of the
 appellant on 7.10.1992 and after 7 days the bones and clothes.allegedly
 belonging to Ramsevak came to be noticed and thereafter seized from
 the field. At this juncture, it is pertinent to point out that they were not    G
 seized/recovered pursuant to any information furnished by the accused.
      9. The contention for the learned counsel for the appellant that the
 prosecution has not even established the death ofRamsevak cannot be
 brushed aside. The investigation officer seized the bones from the field
 vide Exh.P 13 and sent them for autopsy. PW6 Dr. Arvind Bhat in his             H
606            SUPREME COURT REPORTS                           [2016] 2 S.C.R.


A     report Exh.P I 0 gave an account of the bones forming the skeleton.
      Thereafter they were sent to Medical College, Raipur, and PW I 0 Dr.
      Sapan Kumar Das examined them and gave Exh.P23 opinion stating
      that the bones are of human origin and they belonged to male aged
      between 25 to 40 years and there were no marks of injury in any of the
      bones and the cause of death cannot be said and the death could have
B
      occurred within 6 months prior to the date of examination. The
      Investigation Officer did not take any attempt to conduct DNA analysis
      of bones to prove that the skeleton seized was that of Ramsevak. In
      short the prosecution has failed to prove the death of Ramsevak either
      homicidal or otherwise.
 c          10. It is trite law that a conviction cannot be recorded against the
      accused merely on the ground that the accused was last seen with the
      deceased. In other words, a conviction cannot be based on the only
      circumstance of last seen together. Normally, last seen theory comes
      into play where the time gap, between the point of time when the accused
 D    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 perpetrator of the crime becomes impossible. To record a
      conviction, the last seen together itself would not be sufficient and the
      prosecution has to complete the chain of circumstances to bring home
      the guilt of the accused.
 E
           11. In a similar fact situation this Court in the case of Krishnan v.
      State ofTamil Nadu (2014) 12 SCC 279, held as follows:
            "21. The conviction cannot be based only on circumstance of
             last seen together with the deceased. In Arjun Marik v. State of
 F           Bihar (1994) Supp (2) SCC 372)
               "3 I. Thus the evidence that the appellant had gone to Sitaram
               in the evening of 19-7-1985 and had stayed in the night at the
               house of deceased Sitaram is very shaky and inconclusive. Even
               if it is accepted that they were there it wou Id at best amount to
               be the evidence of the appellants having been seen last together
 G
               with the deceased. But it is settled law that the only circumstance
               of last seen will not complete the chain of circumstances to
               record the finding that it is consistent only with the hypothesis
               of the guilt of the accused and, therefore, no conviction on that
               basis alone can be founded."
 H
     RAMBRAKSH @ JALIM v. STATE OF CHHATTISGARH                                  607
                   [C. NAGAPPAN, J.]

       22. This Court in Bodhraj v. State of J&K (2002) 8 SCC 45)                 A
       held that:
             "31. The last seen 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    B
             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 ev.idence 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          c
       per prosecution story the deceased Manikandan was last seen on
       4-4-2004 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          D
       that the deceased was last seen together with the accused and in
       the intervening period of seven days there was nobody in contact
       with the deceased.
       24. In Jaswant Gir v. State of Punjab (2005) 12 SCC 438),
       this Court held that in the absence of any other links in the chain·· E
       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 reg,ard is believed.
      12. In the present case as l]oticed above the Sessions Court as well
as the High Court convicted the appellant/accused No.2 on the basis of
                                                                            F
last seen evidence, the correctness of which is also doubtful. The High
Court had failed to appreciate the aforesaid fact and erred in affirming
the judgment of conviction passed by the Sessions Court. We are satisfied ·
that the conviction of the appellant can.not be sustained in law and liable
to-be set aside.
                                                                                  G
     13. The appeal is allowed and the inipugnedjudgment of conviction
and sentence imposed on the appellant is set aside. The appellant is
ordered to be set at liberty forthwith if not required in any other case.
Nidhi Jain                                                     Appeal allowed.

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