Punjab-Haryana High Court
Sita Ram And Another vs State Of Haryana on 31 May, 2011
Crl. Appeal . No. 573-DB of 2001 {1}
In the High Court of Punjab and Haryana at Chandigarh
Crl. Appeal No. 573-DB of 2001
Date of Decision: May 31, 2011
Sita Ram and another
---Appellants
versus
State of Haryana
---Respondents
Coram: HON'BLE MR. JUSTICE M.M.KUMAR
HON'BLE MR. JUSTICE GURDEV SINGH
***
Present: Mrs. Geeta Sharma,Advocate,
for the appellants
Mr. Sandeep Vermani,Addl. Advocate General, Haryana
for the respondent
***
1. To be referred to the Reporter or not?
2. Whether the judgment should be reported in the Digest?
Gurdev Singh, J.
The present appellants-accused, Sita Ram and Harcharan Singh @ Channi along with Dilraj Singh @ Happy, were tried by the Additional Sessions Judge, Kurukshetra, for the offences under Sections 302, 201 read with Section 34 IPC. Dilraj Singh @ Happy was acquitted whereas, they were convicted for those offences and Crl. Appeal . No. 573-DB of 2001 {2} were sentenced as under:-
Sr.N Under Section Sentence imposed fine o.
1. 302/34 IPC To undergo rigorous `2,000/- In default of imprisonment for life each payment of fine to further undergo rigorous imprisonment for two years.
2. 201/34 IPC To undergo rigorous `1,000/- In default of imprisonment for each payment of fine three years to further undergo rigorous imprisonment for six months.
The instant appeal has been preferred by them against that conviction and sentence.
The FIR, Ex. P.G/1, in this case was registered on 29.9.1995 on the statement, Ex. PG, of Sadha Singh-complainant, PW-11, made before Pawan Kumar, ASI, PW-17. He narrated therein that Gurmail Singh,deceased, was the son of his sister Gurcharan Kaur, who was married to Gurnam Singh and had four other sons named; Shisha Singh, Hardeep Singh, Karam Singh and Gurpreet Singh @ Pappi. The deceased was unmarried and was residing with her whereas all other four brothers were married and were living separate from them. The deceased was doing the work of agriculturist after taking the land on lease whereas his brothers were transporters. In the year 1995, he had taken four acres of land on lease from Sohan Singh and Ramesh Bihari, deceased, had been employed by him as Crl. Appeal . No. 573-DB of 2001 {3} agricultural servant 10/12 days before 27.9.1995. On that day, after getting his land ploughed with the help of tractor of Harinder Singh @ Kalu, he himself and Ramesh Bihari consumed one bottle of liquor along with the present accused and Harinder Singh @ Kalu. Thereafter, they went to the cattle market on the tractor of Harinder Singh, who after leaving them at that place left with his tractor. Then they came to the hotel of Lekh Raj and at that place they again consumed liquor. After consuming that liquor, they abused and grappled with each other. Thereafter, they again took liquor while sitting in the truck of Malkiat Singh. Thereafter, Gurmail Singh, deceased, never came to his house. The complainant and other family members kept on searching for him and on 29.9.1995, they saw a dead body lying in the pond near the cattle market, the arm of which was tied with the help of a shirt with the support wire of the telephone pole and three stones had been placed upon the same. When they took out the dead body, they found that it was of Gurmail Singh, deceased. On further search, they also found dead body of Ramesh Bihari, deceased, lying in the pond. The complainant entertained a firm belief that both the deceased had been killed by the accused. After recording that statement, the ASI accompanied by the complainant, went to the place from where the dead bodies were recovered. He called Balak Ram, Photographer PW-4, to that place, who took the photographs, Ex. P-1 to P-12. He prepared the inquest Crl. Appeal . No. 573-DB of 2001 {4} reports, Exs. PC and PD, in respect of the dead bodies of Gurmail Singh and Ramesh Bihari, respectively, and sent the same to the hospital for post mortem examination. He prepared the rough site plan, Ex. PP, of that place with correct marginal notes. The torn shirt of Gurmail Singh, deceased, was recovered from that place, which was converted into a parcel, and was sealed by him with his seal "PK". The stones, which were said to have been found placed on the dead body of Gurmail Singh were also converted into sealed parcels. All those sealed parcels were taken into possession, vide Memo Ex. PK. One 'V' shape chappal belonging to Ramesh Bihari, deceased, was also recovered from that place, which was converted into a sealed parcel. The stones, which were alleged to have been placed on the dead body, were converted into separate sealed parcels. All those sealed parcels were taken into possession, vide Memo Ex. PL. After coming back to the police station, the ASI deposited the case property with Ram Parkash, MHC. A Board consisting of Dr. K.K.Chawla and Dr. C.R.Khatri was constituted for performing the post mortem examination on the dead bodies of the deceased. They found that those dead bodies were in advance stage of putrefaction, having no obvious mark of any external injury. The dead bodies were not dissected and on account of being in advance stage of putrefaction and were sent to the the same Forensic Department, Medical College and Hospital, Rohtak. On 1.10.1995, the post mortem examination on Crl. Appeal . No. 573-DB of 2001 {5} these dead bodies was conducted by Dr. S.K.Dhattarwal, Lecturer, Forensic Medicines, Medical College, Rohtak, PW-2. The transverse ligature mark over the neck was found on both the dead bodies and it was opined by the doctor that the cause of death was ligature strangulation. The viscera of the dead bodies was sent to the FSL for chemical examination. In the course of investigation, statements of the witnesses were recorded under Section 161 Cr.P.C. and it transpired that on 27.9.1995, Gurmail Singh, deceased, was seen in the company of all the three accused while taking drinks near the shop of Lekh Ram, PW-9, and that they had also taken the drinks together in the truck of Malkiat Singh, PW-10. On 3.10.1995, statement of Jaswant Singh, PW-15, was recorded, who came out with the version that all the three accused came to him on that date and one after the other made extra judicial confession that they first strangulated Gurmail Singh to death and concealed his dead body in the pond near the cattle market and thereafter, they came back to the place where they strangulated that deceased and found Ramesh Bihari at that place while posing to sleep and under the apprehension that he might have seen them committing the murder of Gurmail Singh, murdered him by pressing his neck and thereafter, concealed his dead body in the pond near the cattle market. Jaswant Singh produced the accused before the ASI on that very day and they were arrested in this case. On interrogation, Harcharan Singh @ Channi, accused made a disclosure Crl. Appeal . No. 573-DB of 2001 {6} statement in the presence of Ram Kumar HC, PW-14, that he had kept concealed one parna belonging to him in the almirah of his house, about which only he had the knowledge and could get the same recovered. In pursuance of that disclosure statement, Ex. PN, he got recovered the parna, Ex. P.21, from the said place. The ASI converted that parna into a parcel and sealed the same with his seal` and took that sealed parcel into possession, vide Memo Ex. PO. He prepared the rough site place, Ex. PO/1, of the place of recovery with correct marginal notes and on coming back to the police station, deposited that sealed parcel with the MHC. On interrogation of the accused, they disclosed the place where they committed the crime and rough site plans, Ex. PQ, PQ/1 and PQ/2 were prepared in respect of those places. The viscera was sent to the FSL. On examination, Ethyl alcohol and organophosphorus pesticide were found therein. On the basis of that report, Ex. PR, it was opined by Dr. S.K.Dhattarwal, PW-2, that both the victims were incapacitated by administration of Ethyl alcohol and organophosphorus pesticide, which was a contributory factor in causing the death by strangulation. The map on scale of the place of occurrence, Ex. PF, was got prepared from Mukesh Kumar, Draftsman, PW-3. After completion of the investigation, the challan was put in before the Chief Judicial Magistrate, Kurukshetra, who committed the same to the Court of Session as the offence under Section 302 IPC was exclusively triable Crl. Appeal . No. 573-DB of 2001 {7} by the Court of Session.
The Additional Sessions Judge, Kurukshetra, from the perusal of the documents sent along with the police report and after hearing Public Prosecutor for the State and learned defence counsel for the accused, found sufficient grounds for presuming that the present appellants/accused committed the offences punishable under Sections 302 and 201 IPC whereas Dilraj Singh @ Happy committed offence punishable under Section 302/34 IPC. They were charged accordingly, to which they pleaded not guilty and claimed trial.
To bring home the guilt of the accused, prosecution examined Dr. K.K.Chawla, Medical Officer, PW-1, Dr. S.K.Dhattarwal, Lecturer, Forensic Medicines, Medical College, Rohtak, PW-2, Mukesh Kumar, Draftsman, PW-3, Balak Ram, Photographer, PW-4, Gulab Singh SI, PW-5, Tek Chand ASI, PW-6, Balbir Singh, Constable, PW-7, Sewa Ram, Constable, PW-8, Lekh Ram, PW-9, Malkiat Singh, PW-10, Sadha Singh, PW-11, Ram Parkash HC, PW-12, Joginder Singh, PW-13, Ram Kumar HC, PW- 14, Jaswant Singh, PW-15, Himmat Singh, ASI, PW-16 and Pawan Kumar, ASI, PW-17.
After the close of the prosecution evidence, the accused were examined by the trial court and their statements were recorded under Section 313 Cr.P.C. All the incriminating circumstances appearing against them in the prosecution evidence were put to them Crl. Appeal . No. 573-DB of 2001 {8} in order to enable them to explain the same. They denied all those circumstances and pleaded their innocence and false implication. They were called upon to enter on their defence but they did not produce any evidence in their defence.
We have heard learned counsel for both the sides. It was submitted by counsel for the appellants-accused that the prosecution relied upon the same evidence against all the three accused. The trial court acquitted Dilraj Singh @ Happy- accused and, as such, the conviction of the appellants-accused could not have been recorded on the basis of that very evidence. She further submitted that the prosecution has produced only circumstantial evidence against the accused which consists of the last seen theory and the extra judicial confession, allegedly made before Jaswant Singh, PW-15. According to her, the accused and the deceased had taken the drinks in the truck of Malkiat Singh before the occurrence took place but that Malkiat Singh, PW-10, did not support the prosecution version. Lekh Ram, PW-9, and Joginder Singh, PW-13, who were the witnesses of last seen theory have not been able to make trustworthy statements in the Court. The statement of Jaswant Singh, PW-15, is full of embellishments and he made a number of improvements while making that statement. In view of that, reliance is not to be placed on his testimony. The circumstances which were found to be against the accused have not been proved by cogent and Crl. Appeal . No. 573-DB of 2001 {9} convincing evidence nor the chain of those circumstances is complete so as to prove the guilt of the accused. She prayed for their acquittal.
On the other hand, it has been submitted by the State counsel that the prosecution has been able to prove beyond any reasonable doubt that soon before the death, the deceased were seen in the company of the accused and the accused have not been able to produce any evidence as to when they parted the company with the deceased. That last seen theory itself is sufficient to sustain the conviction of the appellants-accused. Jaswant Singh, PW-15, has categorically stated that all the accused made extra judicial confession before him. Those extra judicial confessions can be made basis for their conviction. Dilraj Singh @ Happy-accused, was acquitted by the trial court as according to the other accused, he had not taken any part in strangulating the deceased and had gone away to conceal the sword, which had been snatched by Gurmail Singh-deceased, from Sita Ram. There is no ground for upsetting the well reasoned findings recorded by the trial court for convicting and sentencing the accused.
The prosecution successfully proved on the record that the death of Gurmail Singh and Ramesh Bihari was homicidal. It was stated by Sadha Singh, PW-11, that Gurmail Singh was the son of his sister Gurbachan Kaur, who had taken land on lease from his brother- Sohan Singh and in agricultural operations, Gurmail Singh was being helped by Ramesh Bihari. On 27.9.1995, Gurmail Singh did not Crl. Appeal . No. 573-DB of 2001 {10} return to his house and he was told about that fact next morning by his nephews Karam Singh and Shisha Singh, brothers of Gurmail Singh. Thereafter, he searched for Gurmail Singh. On 29.9.1995 at about 12-00 noon, his dead body was found floating in a pond near the grain market. They took out that dead body. In the other pond the dead body of Ramesh Bihari was found floating and that was also taken out. He made his statement, Ex. PG, about these facts before the police.
According to Pawan Kumar, ASI, PW-17, after the said statement was made before him, he got registered the FIR and went to the place where the dead bodies of Gurmail Singh and Ramesh Bihari were lying. He prepared the inquest reports, Exs. PC and PD, in respect of the dead bodies and sent the same for post mortem examination.
It was stated by Dr. K.K.Chawla, PW-1, that on 30.9.1995, he along with Dr. C.R.Khatri, examined the dead bodies of Gurmail Singh and Ramesh Bihari, which were in advance stage of putrefaction. There was no obvious mark of any external injury visible on any part of those bodies. They did not dissect those bodies for keeping the condition of viscera intact. They referred those bodies to the Medical College, Rohtak.
It was stated by Dr. S.K.Dhattarwal, Lecturer, Forensic Medicines, Medical College, Rohtak, PW-2, that on reference Crl. Appeal . No. 573-DB of 2001 {11} having been made by Dr. K.K.Chawla and Dr. C.R.Khatri, he conducted the post mortem examination on the dead body of Gurmail Singh on 1.10.1995 at 9-00 a.m. There was a transverse ligature mark over the thyroid cartilage of neck which was of 5 cm width and was situated 4 cm below the centre of chin in mid-line. In his opinion the cause of death was ligature strangulation. He also stated that on the same day, at about 11-00 a.m., he conducted the post mortem examination on the dead body of Ramesh Bihari and found a faint transverse ligature mark over thyroid cartilage of neck which was of 5 cm width and was situated 4 cm below the centre of chin in mid- line. In that case also, he gave opinion that the cause of death was ligature strangulation.
This evidence produced by the prosecution was not assailed nor challenged. From this evidence, it stands proved that the death of Gurmail Singh and Ramesh Bihari was homicidal.
These were blind murders and the prosecution has relied on circumstantial evidence. It is a fact that, that part of the prosecution story that the accused and the deceased had taken liquor in the truck of Malkiat Singh, PW-10, has not been supported by that witness. However, that witness was declared hostile and was duly discredited by the prosecution. No doubt is created in the prosecution case merely on account of non-supporting of its case by that witness. This Court is to look into the other evidence of the prosecution for Crl. Appeal . No. 573-DB of 2001 {12} determining whether the guilt of the accused stands proved or not. It is also a fact that Dilraj Singh @ Happy, accused, was acquitted by the trial court, against whom the same evidence was produced but that cannot be made a ground for acquitting the other accused. For acquitting that accused, the trial court took into consideration the extra judicial confessions made by the accused to the effect that both the deceased were strangulated by Sita Ram and Harcharan Singh @ Channi, accused.
One of the circumstance relied upon by the prosecution for proving the guilt of the accused is that soon before the death of the deceased, they were seen in the company of the accused. For proving that last seen theory, the prosecution examined Lekh Ram, PW-9, and Joginder Singh, PW-13. It was stated by the former witness that his tea shop is located in cattle market, Shahbad. On 27.9.1995 at about 9-00 p.m., all the three accused and one Gurmail Singh came to his tea stall and purchased 250 grams of Pakoras and started taking the drinks at the nearby shop. After he closed his shop at 9-30 a.m., he went to his house. This witness did make some improvements while making his statement in the Court but those are very minor improvements which do not go to the root of the case. Having gone through his statement, we have come to the conclusion that he is a witness worthy of reliance and has made a truthful statement in the Court. The proximity of his shop from the place where the dead Crl. Appeal . No. 573-DB of 2001 {13} bodies of the deceased were recovered, shows that he is a natural witness. The way in which he faced the cross examination and narrated the facts, further goes to show that he is a truthful witness. Nothing could be extracted during his cross examination on the basis of which it may be held that he has been falsely introduced into the picture subsequently in order to give weight to the prosecution case. His statement inspires full confidence and, as such, reliance is to be placed on the same. His statement finds corroboration from the statement of Joginder Singh, PW-13, as according to him, when he came to the cattle market on 27.9.1995 at about 10-30 p.m., he found the accused having altercation with Gurmail Singh-deceased, near the shop of this witness. According to him, he had seen all of them in the electric light. He intervened and separated them and at that time it was told by Channi and Sita Ram that they would kill Gurmail Singh. It has come out during his cross examination that his sister Kulwinder Kaur is the wife of Shisha Singh, brother of Gurmail Singh. That relationship alone is not a ground for discarding his testimony. Being a relation of the deceased, his testimony is liable to closure scrutiny. The way in which he has faced his cross examination, we do not find any ground to doubt his presence at the spot or that he has just been introduced into the picture, being the relative of the deceased. He stated that at the time of altercation, the shop of Lekh Ram was lying closed. Altercation had taken place at Crl. Appeal . No. 573-DB of 2001 {14} 10.30 p.m. and Lekh Ram had left his shop after closing the same at 9.30 p.m. From the statements of both these witnesses, it stands proved that on 27.9.1995, Gurmail Singh was with the accused from 9-00 p.m. to 10.30 p.m. and was threatened to be killed by Sita Ram and Harcharan Singh @ Channi, accused.
The time of death of Gurmail Singh and Ramesh Bihari can well be pointed down from the statement of Dr. S.K.Dhattarwal, PW-2. He had conducted the post mortem examination on the dead bodies of these deceased on 1.10.1995 at 9-00/11-00 a.m. He had sent the viscera of the dead bodies to FSL and it was found to contain Ethyl alcohol and organophosphorus pesticide. This further corroborates the ocular evidence produced by the prosecution that the accused and the deceased had been drinking together on 27.9.1995. According to this doctor witness, the probable duration between the death of the deceased and post mortem examination was four days. Thus, the deceased had died on 27.9.1995 itself. The prosecution successfully proved on the record that soon before the death of Gurmail Singh, deceased, he was seen in the company of the accused. It is also to be noted that according to Dr. S.K.Dhattarwal, PW-2, the deceased were incapacitated by administering Ethyl alcohol and organophosphorus pesticide, which was a contributory factor in causing their death by strangulation.
The second incriminating circumstance put forward by the Crl. Appeal . No. 573-DB of 2001 {15} prosecution against the appellants-accused is that they made extra judicial confession before Jaswant Singh, PW-`15, admitting the fact that it were they, who caused the death of Gurmail Singh and Ramesh Bihari. That witness made a detailed statement in the Court. According to him, all the three accused came to him on 3.10.1995 and made extra judicial confessions one after the other to the effect that on 27.9.1995 at about 10-11 p.m. they took the liquor together upon which a quarrel took place between them and at that time Sita Ram having a sword which was snatched by Gurmail Singh. He fell down being heavily drunk and thereafter, it was remarked by Dilraj Singh @ Happy that it was the time for them that they should kill Gurmail Singh and that the said accused further stated that he would conceal the sword of Gurmail Singh somewhere and that they should finish him. After that Sita Ram caught hold of the hands of Gurmail Singh and Harcharan Singh @ Channi, after removing the parna of that deceased, put that around his neck and they killed him with the help of that perna.
It was held by the Division Bench of this Court in Roopi @ Roopa v. State of Haryana (1990)(3) RCR (Criminal) 41 that extra judicial confession is usually looked upon as a weak type of evidence and, therefore, whenever it is sought to be relied upon, the burden lies upon the prosecution to show its trustworthiness. In order to render such confession worthy of belief, regard must be had Crl. Appeal . No. 573-DB of 2001 {16} to :
(i) the person to whom it is made;
(ii) the connection, if any, of the accused with him;
(iii) the occasion or the reason for the accused to go to
make such confession to him; and
(iv) the circumstances in which it was made
Besides all this, the extra judicial confession must be considered in the over all context of the prosecution case and the evidence on the record.
It is not the statement of Jaswant Singh, PW-15, that the accused were already known to him. From the perusal of his statement, it transpires that the accused were strangers to him. He did not disclose their parentage or addresses, though the same find mentioned in the statement made by him before the police and which was recorded under Section 161 Cr.P.C. He is not any office holder of the village. First he tried to assert that his wife is member Panchayat but changed that statement and stated that she was ex- member of the Panchayat. He is resident of village Thaska Ali, which is at a distance of 14/15 Kms from Shahbad, where the accused had been residing. Why the accused would come to him to such a distance to make damaging statements when he was unknown to them and was not having any connection with them and was not in a position to help them in any way. A person would either go to Crl. Appeal . No. 573-DB of 2001 {17} some of his acquaintance to make extra judicial confession or would approach some person, who wields some influence with the police or other authority which might weigh with that person and on the basis of which he might entertain a belief that the said person would help him in some way. It was stated by this witness during his cross examination that Gurmail Singh-deceased was having land in his village and resided their for 14/15 days. Thus, he had connection, if any, with the deceased. The accused would be the last persons to approach such a witness to make extra judicial confession. It was held by a Division Bench of this Court in Roop Lal v. State of Punjab (1998)(1)RCR (Criminal) 797 that extra judicial confession made by the accused to a person who has no affinity with the accused, cannot be relied upon. Again it was held by a Division Bench of this Court in Hari Kant v. State of Haryana (1999)(2) RCR (Criminal) 92 that confession made by the accused to a person who had no intimacy with him, confession of such person is devoid of credibility.
In Surinder Kumar vs. State of Punjab 1999(1)RCR (Criminal) 164, the accused had no particular relationship or connection with the PW to take him in confidence and make confession. In that case, the conviction of the accused recorded on the basis of the extra judicial confession was set aside by Hon'ble the Supreme Court. Therefore, in the present case also, such an extra Crl. Appeal . No. 573-DB of 2001 {18} judicial confession made to a witness who had no connection with the accused whatsoever, cannot be relied upon.
Moreover, after careful perusal of the statement of Jaswant Singh, PW-15, we have come to the conclusion that he is not a witness worthy of reliance. While making his statement in the Court, he made material improvements and was duly confronted with his statement recorded under Section 161 Cr.P.C. Those improvements go to the very root of the case. His statement is full of embellishments The said extra judicial confessions do not fit in the facts of the present case. As per the prosecution version, Ramesh Bihari, deceased was also with the accused and Gurmail Singh- deceased, when they had been taking the liquor but this extra judicial confession excludes the presence of Ramesh Bihari. According to Jaswant Singh, PW-15, the accused had also made extra judicial confession before him to the effect that after they came back to the place of occurrence, after concealing the dead body of Gurmail Singh, Ramesh Bihari was sleeping on a cot near the shop of Sunder Lal, upon which they entertained a doubt that he was awake and had witnessed the occurrence and under the apprehension that he might disclose the murder of Gurmail Singh, Sita Ram sat on his chest and his throat was pressed by Harcharan Singh @ Channi. As already disclosed above , during the post mortem examination ligature mark was found on the neck of that deceased and according to the doctor Crl. Appeal . No. 573-DB of 2001 {19} witness, the cause of death was ligature strangulation. In these circumstances, reliance cannot be placed on the statement of this witness (Jaswant Singh, PW-15).
Prosecution has also tried to produced evidence to the effect that Harcharan Singh @ Channi got recovered a parna in pursuance of his disclosure statement. The evidence produced by the prosecution is contradictory in itself. According to it, that accused had disclosed that the parna, so concealed by him, was his own whereas his alleged extra judicial confession is to the effect that it was the parna of Gurmail Singh-which was used for strangulating him. Reliance cannot be placed on this contradictory evidence.
Thus, the only circumstance proved by the prosecution against the accused is that last time Gurmail Singh, deceased, was seen alive with them soon before his death. Whether this circumstance alone is sufficient for sustaining the conviction of the accused?
It is well settled law that 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 the deceased is found dead, is so small that the possibility of any person other than the accused being the author of the crime, become impossible. Once the prosecution, ables to prove that fact, then it is for the accused to show as to when they parted with the company with the deceased, in order Crl. Appeal . No. 573-DB of 2001 {20} to show that there was an opportunity for the other persons to come into contact with the deceased. In fact, in the present case no such explanation was offered by the accused. The time gap between the death of the deceased and when he was seen alive in the company of the accused, was so small that there was no opportunity of his having come into contact with any other person.
It was held by the Apex Court in State of Rajasthan vs. Kanshi Ram 2007(1) Apex Court Judgments 454 that 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 his 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 the facts within his special knowledge, he fails to discharge the burden caused 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 discharging of the burden placed upon him, that itself provide 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 Crl. Appeal . No. 573-DB of 2001 {21} 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 compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain.
It was held in Amrit Singh v. State of Punjab 2007(1) Criminal Court Cases 80 that the evidence of last seen may be relied upon or may form basis for conviction, would depend upon the facts and circumstances of each case. In some cases, the Court also look for corroborative evidence. In some cases, the court may rely fully thereupon. The facts and circumstances of the present case are such that we are of the considered opinion that this last seen theory is sufficient for recording the conviction of the accused.
We do not find any ground for setting aside the conviction and sentence, so recorded by the trial court. The appeal itself is devoid of any merit and hereby dismissed.
This order be certified to the trial court for taking necessary action.
(M.M.KUMAR) (GURDEV SINGH)
JUDGE JUDGE
May 31, 2011
PARAMJIT