Last Seen Theory - Chain of Event - Not complete - No other Independent Witness - Motive Not Prove - Circumstances from which an inference of guilty - Is sought to be drawn must be cogently and firmly established: HC

Last Seen Theory - Chain of Event - Not complete - No other Independent Witness - Motive Not Prove - Circumstances from which an inference of guilty - Is sought to be drawn must be cogently and firmly established: HC

At Allahabad

The bench of Allahabad High Court at Allahabad Hon’ble Rajesh Dayal Khare, J. and  Hon'ble Jayant Banerji , J.  held that last seen theory and Chain of Event Not completed. in the circumstances from which an inference of guilty is sought to be drawn must be cogently and firmly established

Case Detail:

Appellant     :- Sujeet 
Respondent :- State Of U.P. (JAIL APPEAL No. - 4302 of 2013)

Sections 302 and 201 of Indian Penal Code 

Short Fact of Case:

On 12.10.2011, Shiv Shankar (PW-8) is stated to have given a written report (Exhibit Ka-16) in Thana Derapur, District Ramabai Ngar to the effect that on that date, while going to Akbarpur at 10.15 in the morning from Village-Muvai Mukta, along the 'kharanja' road near to the Highway near which the milestone on which Kanpur 62 kms. is written, below the road, a dead body of a male person was lying which is 400 mts. from Vandana Hotel towards Mungisapur. 

Just then employees of Vandana Hotel came, they informed that the dead body is of Anil who used to work in Umran Dhaba. In the General Diary at Report No.22 at 11:30 am. and sent the dead body for postmortem. On 13.10.2011, at 7:15 am, the Prosecution Witness No.1- Kamalkant Dixit filed a written report (Exhibit Ka-1) and got lodged an First Information Report to the effect that one Sujeet s/o of Udrej Singh was working as a waiter in the hotel from 28.09.2011 and earlier he used to work at Umran Dhaba in Rania. On 11.10.2011 Anil Kumar, a waiter working in Umran Dhaba, came to meet Sujeet in his Dhaba and on that very night at 11.00 pm both persons left towards Muvai Mukta stating that they had to attend the call of nature and this is the last seen as per PW - 1. Thereafter, around 1.30 at night Sujeet returned alone and went to sleep in the labour room. 

On 12.10.2011, around 10.30 am, it came to his knowledge that 300 mts. from his hotel on the side of the road going towards Muvai Mukta, a bloodstained body of a man is lying in the bushes. On seeing that body, his employees stated that the body is of Anil Kumar, who had gone out with Sujeet and was wearing T-shirt of Sujeet. The informant further stated that an old dispute was there between Anil and Sujeet and that he had come to know that Sujeet had murdered Anil. 

On the basis of the report of PW-1, an FIR was written and Case Crime No.189 of 2011 under Sections 302 and 201, IPC was registered and an entry in the General Diary was made on 13.10.2011 bearing Report No.11 at 7.15 am.Thereafter the charge-sheet dated 8.12.2011

Lower Court Decision:

After Consideration of the evidence on record by the Additional District and Sessions Judge, Court No.9, Kanpur Dehat whereby the Appellant/Accuse - Sujeet was convicted under Sections 302 of the Indian Penal Code and awarded a sentence imposing life imprisonment and Rs.5000/- penalty and, under Section 201 IPC, a term of three years of rigorous imprisonment with Rs.2000/- penalty was also imposed.

Appellant Court Observations/Directions:

As per the FIR dated 13.10.2011, the PW-1 came to know at 10.30 in the morning of 12.10.2011 that a man's body is lying in the bushes near the road going to Muvai Mukta village and, on seeing which, the employees of his Hotel, namely Pooran Singh and Arvind Kashyap had told him that he is the same Anil who had gone out with Sujeet and that the deceased was wearing the T-shirt of Sujeet.

A) It is important to note that admittedly the PW-1 came to know about the murder of Anil at 10.30 in the morning of 12.10.2011 and had ample time before submitting his complaint to the police which resulted in lodging of the FIR on 13.10.2011.

B) The PW-2, Pooran Singh and PW-9, Arvind Kashyapa a worker at the Dhaba where the accused Sujeet used to work, had turned hostile and, on being cross-examined on behalf of the prosecution, has denied giving any statement under Section 161 of Cr.P.C. and, in the leading question put to him, has denied having seen the deceased Anil and the accused Sujeet going together. He has also denied in his cross examination that the deceased as well as the accused had gone out at night to answer the call of nature. Vandana Dhaba is admittedly situated near to the Highway and as per the statement of PW-1 himself, the day the deceased had come to the Dhaba, the PW-1 was working from 12 noon till 1.30-2.00 at night. It would, thus, be difficult to believe that there were no other witnesses present at the Dhaba at that point of time who could be produced by the prosecution to corroborate the statement of the PW-1. Thus, the FIR when read in conjunction with the deposition of the PW-1 itself creates serious doubts as to the credibility of the PW-1.

Thus this is a case of circumstantial evidence. It was, therefore, imperative on the part of the prosecution to have established and proved the chain of events completely so as not to leave any room for doubt regarding the identity of the murderer. No other independent witness has been produced by the prosecution who could vouch and corroborate the testimony of the PW-1. It was incumbent on the prosecution to have established the motive ascribed to the accused regarding lost of money due to gambling and the quarrels between the accused and the deceased which was not done.

Final Order/Decision:

In view of the reasons stated above, this Jail Appeal deserves to be allowed and is, accordingly, allowed. The conviction and sentences of the accused awarded by the Court below by means of the judgment dated 13.9.2013 and the order dated 17.9.2013 are set aside.

Cases Refer:

1. Ganpat Singh Vs. The State of Madhya Pradesh 2017 (16) SCC 353

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