Chattisgarh High Court
Santosh Nishad vs State Of Chhattisgarh on 16 June, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
CRA-1041-2012
Page 1 of 17
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 1041 of 2012
Santosh Nishad, S/o Ude Ram Nishad, aged about 24 years, R/o Village
Tamora, Police Station & District Mahasamund (Chhattisgarh)
---- Appellant
Versus
State of Chhattisgarh, through Police Station Mahasamund, District
Mahasamund (Chhattisgarh)
---- Respondent
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For Appellant : Mr. Pushpendra Kumar Patel, Advocate For Respondent-State : Mr. Himanshu Kumar Sharma, Panel Lawyer
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DB: Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Smt. Justice Sachin Singh Rajput Judgment on Board (16.06.2022) Sanjay K. Agrawal, J This criminal appeal filed by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 25.09.2012, passed by the Court of learned Sessions Judge, District Mahasamund (C.G.) whereby the appellant/accused has been convicted under Section 302 of IPC and sentenced to undergo life imprisonment with fine amount of Rs.1,000/- and, in default of fine, additional simple imprisonment of six months.
(2) The case of the prosecution, in brief, is that on 25.07.2011 at about 06:00 PM in the evening at Dumarnala, Village Tamora the appellant-accused has committed murder of is younger brother, namely, Nutan Nishad, S/o Ude CRA-1041-2012 Page 2 of 17 Ram Nishad, aged about 13 years (now deceased) by strangulation and, thereby, committed the offence.
(3) The further case of the prosecution, in brief, is that on 29.07.2011 at about 09:20 Jagdev Singh Dhruv (PW-2), being the Sarpanch of Village Tamora, alongwith Uttam Singh (PW-8) and one Bugharu Nishad lodged report that: Sonwati Bai, who is mother of Nutan Nishad (deceased) had given an application in the Gram Panchayat stating that his son- Nutan had gone somewhere without informing her and is missing, pursuant to which a meeting of villagers and panchayat members was convened in the night of 28.07.20211, whereby Santram Patel (PW-1) and other dignitaries of Village Tamora had inquired about Nutan from his brother- Santosh (appellant herein), his mother Sonwati Bai (PW-5) and other family members, on which Santosh (appellant/accused) disclosed that on 25.07.2011 he has gone for fishing alongwith Nutan at Dumarnala where he caused his death by strangulation, thereafter, on 29.07.2011 in the morning all the said persons visited Dumarnala Chuikhadan where they found the dead-body of Nutan (deceased) in a decomposed condition.
(4) It is also the case of the prosecution that appellant/accused- Santosh on 28.07.2011 at about 07:00 PM has made extra-judicial confession before Santram Patel (PW-1), Jagdev Singh Dhruv (PW-2) and Uttam Singh (PW-8) that he has caused murder of his younger brother- Nutan and threw his dead- body in Dumarnala. On the basis of the report so lodged by Jagdev Singh Dhruv (PW-2), Marg. No.104 of 2011 (Ex.P-13) was recorded under Section 174 of CrPC, FIR (Ex.P-03) was also registered, inquest proceedings (Ex.P-
04) were held, spot map (Ex.P-05) was prepared, seizure memo was affected CRA-1041-2012 Page 3 of 17 vide Ex.P-02, identification of dead-body of deceased- Nutan was done vide Ex.P-01 and, thereafter, the dead-body of the deceased was sent for postmortem examination to the District Hosptial, Mahasamund. In the postmortem examination report (Ex.P-06) it was opined that: the cause of death remains open and the dead-body is of human male sex with advanced stage of decomposition, hence viscera preserved for chemical analysis. Thereafter, the dead-body was sent to FSL, Raipur by the Superintendent of Police, Mahasamund vide Ex.P-09, but no such report from FSL, Raipur has been brought on record. Thereafter, statement of witnesses were recorded and after completion of the investigation, the police filed charge-sheet in the Court of Chief Judicial Magistrate, Mahasamund and, thereafter, the case was committed to the Court of Sessions for hearing and disposal in accordance with law. The learned trial Court framed charges under Section 302 of IPC against the appellant herein, in which he abjured his guilt and entered into defence.
(5) The prosecution in order to prove its case examined as many as 12 witnesses and brought on record documents from Ex.P-01 to Ex.P-15, whereas the appellant/accused examined none in his defence and has not exhibited any document in support of his defence.
(6) The learned trial Court, after appreciating the oral and documentary evidence available on record, convicted the appellant for offences under Section 302 of IPC and awarded sentence as mentioned herein-above on the following findings:
(i) that the dead-body of the deceased- Nutan was recovered CRA-1041-2012 Page 4 of 17 from Dumarnala Chuikhadan at the instance of the appellant/accused;
(ii) that on 28.07.2011 at about 07:00 PM the appellant has made extra-judicial confession before Santram Patel (PW-1), Jagdev Singh Dhruv (PW-2) and Uttam Singh (PW-8) that he has caused murder of his younger brother- Nutan; and
(iii) that the appellant- Santosh and his brother/deceased- Nutan both were last seen together on 25.07.2011 by Gopal (PW-07).
Aggrieved by the aforesaid findings recorded by the learned trial Court this appeal has been preferred by the appellant/accused questioning the impugned judgment of conviction and order of sentence. (7) Mr. Pushpendra Kumar Patel, learned counsel for the appellant submits that the learned trial Court has committed grave legal error in convicting the appellant for the aforementioned offence on the basis of aforesaid three findings, which is totally perverse and contrary to the material available on record, as the finding regarding recovery of dead-body at the instance of the appellant herein is absolutely incorrect and vague because as per document (Ex.P-12) the recovery of dead-body of deceased-Nutan has been made from an open place of Tamora Jungle and it has not been made pursuant to the disclosure statement of the appellant herein. Similarly, the alleged extra- judicial confession has been made by the appellant in a public meeting of villagers where many persons are surrounded by him and even the Sarpanch and other dignitaries of the Village Tamora were also present there, therefore, such extra-judicial confession cannot be said to be voluntarily made and it was made under the pressure of the villagers and other persons present CRA-1041-2012 Page 5 of 17 there. Even otherwise, there is no other piece of evidence available on record to prove the alleged extra-judicial confession so made by the appellant herein before the three witnesses and not only this even the actual words uttered by the appellant-accused in his extra-judicial confession have also not been clearly stated by the witnesses [i.e. Santram Patel (PW-1), Jagdev Singh Dhruv (PW-2) and Uttam Singh (PW-8)] to the alleged extra-judicial confession in their statements recorded by the learned trial Court. Regarding the theory of last seen together, learned counsel for the appellant submits that the finding relating to the theory of last seen together is sketchy and it has not been proved. The said finding is only one of the circumstance and even if it is held to be proved, no conviction can be recorded against the appellant only on the basis of theory of last seen together in view of various pronouncements of the Supreme Court and, as such, the present appeal deserves to be allowed by setting aside the impugned judgment of conviction and order of sentence and the present appellant deserves to be acquitted.
(8) Per-contra, Mr. Himanshu Kumar Sharma, learned Panel Lawyer appearing for the respondent-State submits that the prosecution has proved the offence beyond reasonable doubt and, therefore, the learned trial Court is absolutely justified in convicting the appellant-accused for offence under Section 302 of IPC, thus the present appeal deserves to be dismissed. (9) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the record with utmost circumspection.
(10) As per prosecution case, the date of offence is 25.07.2011, as on the CRA-1041-2012 Page 6 of 17 same date the appellant-accused alongwith his younger brother- Nutan (deceased) has gone to Dumarnala Chuikhadan for the purpose of fishing and where the appellant-accused is said to have caused death of his brother- Nutan (deceased) by strangulation and threw his dead-body in Dumarnala. At the instance of his mother- Sonwati Bai (PW-5) a meeting of panchayat members and other villagers was convened in the night of 28.07.2011, in which the appellant-accused is said to have confessed before the villagers, particularly before Santram Patel (PW-1), Jagdev Singh Dhruv (PW-2) and Uttam Singh (PW-8), that he has committed murder of his brother- Nutan and threw the dead-body in Dumarnala and, pursuant thereof, the dead-body of deceased- Nutan was recovered in a open place near Dumarnala in a decomposed state. The doctor who conducted the postmortem of the dead- body of deceased- Nutan vide Ex.P-06 opined that the cause of death remains open and it is a dead-body of human male sex with advance stage of decomposition, hence viscera is preserved for chemical analysis and, therefore, the dead-body was sent to the FSL, Raipur by the Superintendent of Police, Mahasamund vide Ex.P-09, but no such report from FSL or chemical analyst has been brought on record for the reasons best known to the prosecution, thus, in absence of report from the FSL or chemical analyst nothing could be elaborated on behalf of the prosecution, as such, cause of death of deceased- Nutan remains uncertain on record and the prosecution could not establish the exact cause of death of the deceased- Nutan. Even otherwise, though the learned trial Court has considered the medical evidence available on record but did not reach to the conclusion that the death of the deceased is homicidal in nature. But the learned trial Court proceeded to convict the appellant-accused on the basis of three piece of evidence i.e., (i) CRA-1041-2012 Page 7 of 17 recovery of dead-body at the instance of the appellant from Dumarnala Chuikhadan, (ii) extra-judicial confession made by the appellant and (iii) the theory of last seen together established. We will consider the three piece of evidence/findings, so recorded by the leaned trial Court, one by one. (11) Regarding Finding No.(i): Recovery of dead-body of deceased at the instance of the appellant : As per document (Ex.P-12), the dead-body of deceased- Nutan was recovered on 29.07.2011 in an open place of Tamora Jungle in a decomposed condition. Though the dead-body is said to have been recovered at the instance and indication of the appellant herein, but fact remains that it was recovered in an open place of Tamora Jungle. Merely because the appellant informed about the place of incidence it cannot be held that recovery of dead-body of deceased- Nutan has been made at the instance of the appellant herein and particularly when it has not been recovered pursuant to the memorandum statement of the appellant herein recorded under Section 27 of the Evidence Act and moreso when Uttam Singh (PW-08), who is one of the star witnesses of the prosecution, in Para-03 of his statement has clearly stated that the appellant-Santosh from his childhood days is half-minded person, his medical condition is not good. He used to drink liquor and his conduct is also not proper. The prosecution in order to prove recovery from the appellant herein has failed to bring any clinching evidence on record and merely because dead-body of the deceased has been recovered from an open place of Tamora Forest, it cannot be held that dead- body of deceased- Nutan has been recovered at the instance of the appellant herein. We accordingly reject this finding so recorded by the learned trial Court being not in corroboration with any clinching or specific piece of CRA-1041-2012 Page 8 of 17 evidence.
(12) Regarding Finding No.(ii): Extra-Judicial Confession made by the appellant : It is the case of the prosecution that the appellant herein as made extra-judicial confession before Santram Patel (PW-1), Jagdev Singh Dhruv (PW-2) and Uttam Singh (PW-8) that he has committed murder of his younger brother, namely, Nutan, aged about 13 years and threw his dead-body in Dumarnala. A careful perusal of the statement given by Santram Patel (PW-1) would show that he has stated before the trial Court that after Sonwati Bai (PW-05), who is mother of Nutan (deceased), informed him that her son is missing, a meeting of villagers and other dignitaries of Village-Tamora was convened at 05:00 PM in the evening on 28.07.2011, in which Gopal (PW-07) informed all of them that he has seen Nutan (deceased) and his brother- Santosh (appellant herein) on Monday sitting near the bridge. Thereafter, villagers got suspicion that after the incident the appellant- Santosh is roaming here and there by consuming liquor, then they tried to search appellant- Santosh and on the same day (i.e. 28.07.2011) he was searched out and the villagers caught hold of him and brought before the meeting of the villagers and other dignitaries of Village- Tamora, who were 200-300 in number. Thereafter, on being asked, appellant- Santosh firstly refused/denied that he was sitting with his brother- Nutan (deceased) on 25.07.2011 near the bridge, but after being confronted by Gopal (PW-07) and on much insistence, he admitted that on Monday (i.e. on 25.07.2011) he has strangulated the neck of deceased- Nutan after sitting on his chest and committed his murder and threw his dead-body in danced forest, on which confession, they decided to give information to the police. Similar statement has been made by Jagdev CRA-1041-2012 Page 9 of 17 Singh Dhruv (PW-2). He has stated that in the meeting of villagers, the appellant-Santosh has admitted that he has committed murder of his younger brother- Nutan and he has taken the villagers to the place where the dead- body of the deceased was lying in a decomposed condition. Further, in Para-3 he has also stated that firstly the appellant- Santosh has refused that he has committed murder of his brother- Nutan, but thereafter he is said to have admitted the act of committing murder of his brother- Nutan. Uttam Singh (PW-08) has also stated that on the date of meeting 200-300 persons were assembled in village, in which Sarpanch and other dignitaries of Village- Tamora were also present and on being directed by the villagers, he has asked from appellant- Santosh about Nutan (deceased), on which he informed them that he has caused death of his brother and had taken them to the place where the dead-body was lying. In Para-03, he has further stated that appellant- Santosh from his very childhood days is a man of half-mind and is not having good mental condition. His conduct and character is also not good and he used to drink liquor.
(13) A conjoint reading of the aforesaid three statements given by Santram Patel (PW-1), Jagdev Singh Dhruv (PW-2) and Uttam Singh (PW-8), before whom the appellant is said to have made the alleged extra-judicial confession, would show that such a confession is made in a public meeting in which 200- 300 persons/villagers were present, wherein firstly the appellant- Santosh refused before them regarding commission of murder of his brother- Nutan, but on being insisted and repeatedly asked he has made confession that he has committed murder of his brother- Nutan by strangulation and threw his dead-body in Dumarnala. Even, Jagdev Singh Dhruv (PW-02) has also CRA-1041-2012 Page 10 of 17 admitted in Para-03 of his statement that they have pressurized the appellant- Santosh and only thereafter he has admitted the act of committing murder by making extra-judicial confession. It is well settled law that if extra-judicial confession is made voluntarily and truly in a fit state of mind, then only it can be relied upon and said confession will have to be proved like in any other piece of evidence. The Supreme Court in the matter of Mohd. Azad @ Samin vs. State of West Bengal1 has held that an extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court and can be made basis for conviction, if it passes the test of credibility and held in Para-22 of the judgment as under:
"22. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon the conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of conviction if it passes the test of credibility."
(14) Similarly, the Supreme Court in the matter of C.K. Raveendran vs. State of Kerala2 has held that it is difficult to reply upon the extra judicial confession as the exact words or even the words as nearly as possible have 1 2009 AIR SCW 752 2 AIR 2000 SC 369 CRA-1041-2012 Page 11 of 17 not been reproduced. Such statement cannot be said to be voluntary so that extra-judicial confession has to be excluded from the purview of consideration to bring home the charge.
(15) Further, in the matter of Balwinder Singh vs. State of Punjab3 the Supreme Court has held that an extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. The Courts generally look for independent reliable corroboration before placing any reliance upon an extra judicial confession. (16) Reverting to the statements of three witnesses, namely, Santram Patel (PW-1), Jagdev Singh Dhruv (PW-2) and Uttam Singh (PW-8), before who the appellant herein is said to have made extra-judicial confession in light of above principle of law laid down by their Lordships of Supreme Court, it is quite vivid that the alleged extra-judicial confession was made by the appellant before three witnesses in a public meeting, in which 200-300 persons/villagers were present and he was not present voluntarily or by his own, as stated by Santram Patel (PW-1) that he was searched out and caught hold by the villagers and brought before the meeting at 07:00 PM on 28.07.2011, wherein he firstly refused that he has committed murder of his brother- Nutan and only on being pressurized by the villagers present there, as stated by Jagdev Singh Dhruv (PW-02) in Para-3 of his statement, he has accepted the act of committing murder of his brother-Nutan. Not only this, Uttam Singh (PW-08) in Para-3 of his statement has further clearly stated that 3 (1995) Supp (4) SCC 259 CRA-1041-2012 Page 12 of 17 the appellant- Santosh from his childhood days is a half-minded man and his mental condition is not good. Appellant- Santosh used to drink liquor and his conduct and character is also not proper/good and, as such, even if it is proved by the prosecution that the appellant was in free state of mind, the extra-judicial confession cannot be said to be voluntarily made. There is one more reason for not accepting the extra-judicial confession allegedly made by the appellant before the three witnesses namely, Santram Patel (PW-1), Jagdev Singh Dhruv (PW-2) and Uttam Singh (PW-8), that none of them, anywhere in their statements before the trial Court, have stated the exact words or even the words as nearly as possible uttered by the appellant herein, which is required to be spell out clearly by the prosecution witnesses in light of the decision rendered by the Supreme Court in the matter of C.K. Raveendran (supra). Further, an extra-judicial confession by its very nature is a weak type of evidence and requires appreciation with a great deal of care and caution and if it is surrounded by suspicious circumstance, its credibility becomes doubtful and it loses its importance as held by the Supreme Court in the matter of Balwinder Singh (supra).
(17) In that view of the matter, we are of the considered opinion that the prosecution has failed to establish the extra judicial-confession, as by no stretch of imagination it can be held that the same is made voluntarily by the appellant before the said three witnesses, namely, Santram Patel (PW-1), Jagdev Singh Dhruv (PW-2) and Uttam Singh (PW-8), and the trial Court has committed grave legal error in holding that the appellant has made extra- judicial confession before the aforesaid three witnesses. We hereby reject the evidence of the prosecution relating to the extra-judicial confession CRA-1041-2012 Page 13 of 17 accordingly, as it is surrounded by suspicious circumstances. (18) Regarding Finding No.(iii): Theory of last seen together: The prosecution has putfourth the theory of last seen together by examining Gopal (PW-07), as he has stated before the trial Court that on the date of incident i.e. on 25.07.2011 he has seen Nutan (deceased) and Santosh (appellant) sitting near the bridge at Dumarnala and, thereafter, the offence is said to have been committed on the same day at 06:00 PM and, as such, the theory of last seen together is established. A careful perusal of the statement given by Gopal (PW-7) would show that even in the cross-examination he has maintained his version that he has seen the accused-appellant with his brother-Nutan (deceased) on Monday (i.e. 25.07.2011) at 05:00 PM and immediately thereafter as per FIR (Ex.P-03) incident took place at 06:00 PM. He has been subjected to cross-examination to some extent, but he has been constant in his version and his statement remains un-controverted. (19) As we have already withheld the first two findings so recorded by the learned trial Court regarding recovery of the dead-body of the deceased- Nutan at the instance of the appellant herein and regarding extra-judicial confession so made by the appellant herein being not proved in above Para- 11 & Para-17 respectively, therefore, chain of circumstances is also not established to hold that it is only the appellant who has committed murder of his brother- Nutan (deceased). But, now the question would be whether learned trial Court is justified in convicting the appellant only on the basis of theory of last seen together, finding it to be duly established ? (20) The Supreme Court, in the matter of Sharad Birdhichand Sarda vs. CRA-1041-2012 Page 14 of 17 State of Maharashtra4, has clearly laid down the factors to be taken into account in adjudication of cases of circumstantial evidence, which states as under:
"(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 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."
(21) In the matter of Arjun Marik v. State of Bihar5, it has been held by their Lordships of the Supreme Court held that conviction cannot be made solely on the basis of theory of last seen together and observed in Para-31 as under:
"31. 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 would at best amount to though a number of witnesses have been examined be the evidence of the appellants having been seen last together 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."
(22) Likewise in the matter of State of Goa v. Sanjay Thakran6 the Supreme Court has held that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other 4 (1984) 4 SCC 116 5 1994 Supp (2) SCC 372 6 (2007) 3 SCC 755 CRA-1041-2012 Page 15 of 17 persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was observed in Para-34 as under:
"34. From the principle laid down by this Court, the circumstance of last- seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party,then a relatively wider time gap would not affect the prosecution case."
(23) Similarly in the matter of Kanhaiya Lal vs. State of Rajasthan 7, their Lordships of the Supreme Court have clearly held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime and there must be something 7 (2014) 4 SCC 715 CRA-1041-2012 Page 16 of 17 more establishing connectivity between the accused and the crime. Mere non- explanation on the part of the appellant in our considered opinion, by itself cannot lead to proof of guilt against the appellant. It has been held in Paras- 15 and 16 as under:
"15. The theory of last seen - the appellant having gone with the deceased in the manner noticed herein before, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a longtime. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan8.
16. In view of the aforesaid circumstances,it is not possible to sustain the impugned judgment and sentence. This appeal is allowed and the conviction and sentence imposed on the appellant-accused Kanhaiya Lal are set aside and he is acquitted of the charge by giving benefit of doubt. He is directed to be released from the custody forthwith unless required otherwise."
(24) Finally in the matter of Anjan Kumar Sarma v. State of Assam9 their Lordships of the Supreme Court have clearly held that in a case where other links have been satisfactorily made out and circumstances point to guilt of accused, circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In absence of proof of other circumstances the only circumstance of last seen together and absence of satisfactory explanation, cannot be made basis of conviction. (25) Reverting to the facts of the present case in light of the aforesaid decisions rendered by the Supreme Court particularly in the matter of Anjan Kumar Sarma (supra), it is quite vivid that the prosecution has only established that the appellant was last seen with the deceased and no other 8 (2010) 15 SCC 588 9 (2017) 14 SCC 359 CRA-1041-2012 Page 17 of 17 connecting links have been satisfactorily made out and no other incriminating circumstance which leads to the hypothesis of guilt against the appellant/accused person have been proved. Even, the prosecution in the present case has failed to prove the death of the deceased to be homicide in nature. As such, in absence of proof of other circumstances or chain of circumstances, only the theory of 'last seen together' cannot be made the sole basis for conviction of the appellant herein as it would be unsafe to rest conviction only on the theory of 'last seen together'. Therefore, we are of the considered opinion that the learned trial Court is absolutely unjustified in convicting the appellant herein for offence punishable under Section 302 IPC only on the basis of the theory of 'last seen together' finding it fully established in absence of motive for offence on the part of the appellant and in absence of other incriminating material against the appellant in light of the principles of law laid down by their Lordships of the Supreme Court in the matters of Arjun Marik, Sanjay Thakran and Kanhaiya lal (supra). We hereby set aside the conviction so recorded and the sentence so awarded by the trial Court to the appellant herein vide impugned judgment dated 25.09.2012. The appellant herein is acquitted of the charge of Section 302 of IPC and he be released forthwith, if not required in any other case.
(26) The appeal is allowed to the extent indicated herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
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