Tikesh Sahu vs State Of Chhattisgarh

Naresh Kumar Chandravanshi, J

As we proceed to hear the matter finally with the consent of learned counsel for both the parties, IA No.01/2023, application for suspension of sentence and grant of bail stands disposed of.

This criminal appeal filed by the appellant-accused under Section 374(2) of the Code of Criminal Procedure, is directed against the impugned judgment of conviction and order of sentence dated 15.3.2023 passed by learned Seventh Upper Sessions Judge, Raipur Distt. Raipur (CG) in Sessions Trial No.54/2020, whereby the appellant-accused has been convicted and sentenced in the following manner:

Sl.

No.

Conviction under Section

Sentence

Fine

Default

1.

302 IPC

Imprisonment for life

1,000/-

SI for 01 month

Prosecution story, in nutshell, is that Smt. Rameshwari Goswami, after deserting her husband, was living with appellant Tikesh Sahu in village Navagaon, PS Rakhi, Distt. Raipur as his wife. It is alleged that there used to be frequent quarrel between Rameshwari and the appellant. In the month of January 2019, the appellant assaulted her on neck with kitchen knife, hence, she lodged report against the appellant in the Police Station Rakhi and on this count, the appellant used to quarrel with Rameshwari. On 18.5.2019 in between 7.00-8.00 pm, the appellant had assaulted Rameshwari in the hotel of Shanti Bai Kosle, at that time the witnesses who were present there explained to him and asked him to leave the hotel. Allegation against the appellant is that the appellant took Rameshwari with him towards pond and assaulted her with a piece of cement stone on her head and committed her murder and fled away from the spot. On the next day i.e. on 19.5.2019, on receiving information that one unknown dead body of a woman was lying behind the Dabraha pond, police of Police Station Mandir Hasoud came on the spot and complainant Ishwari Manikpuri came on the spot and lodged unnumbered merg (Ex-P/3) and Dehati Nalishi (Ex-P/2). Inquest report (Ex-P/21) of the deceased was prepared, dead body was identified as body of Rameshwari (since deceased) by mother (PW-5) and bhabhi (PW-4) of deceased vide Ex-P/23 and sent to Community Health Centre, Arang, where Dr. NL Bhuarya (PW-8) conducted postmortem and gave his report vide Ex-P/6, and he opined that cause of death is shock and excessive hemorrhage due to head injury and nature of death of the deceased was homicidal. Spot map (Ex-P/05 & Ex-P/22) were prepared, plain soil, blood stained soil and blood stained cement stone were seized vide Ex- P/18. Upon search at the hotel of Shanti Bai Kosle, blood stained one black colour lower pant, blood stained full sleeve green colour T-shirt, blood stained one iron rod and one bajaru jhumka were seized vide Vide Ex-P/19. Numbered Merg intimation (Ex-P/25) and (FIR P/26) were registered in Police Station Mandir Hasoud, statement of the witnesses were recorded, the accused was arrested. Identification of the articles seized from the hotel of Shanti Bai Kosle, i.e. blood stained one black colour lower pant, blood stained full sleeve green colour T-shirt, blood stained one iron rod and one bajaru jhumka were done by appellant vide Ex-P/12 and at the instance of appellant one Atlas Cycle was seized from backside of the house of the appellant at village Borjhara vide Ex-P/13. Blood stained articles were sent to FSL for chemical examination and FSL report was received vide Ex-P/17. After usual investigation, charge sheet was filed against the appellant under Section 302 IPC in the Court of Judicial Magistrate First Class, Raipur, who in turn committed the case to the Court of Distt. and Sessions Judge, Raipur and the case was transferred to Seventh Upper Sessions Judge, Raipur, who conducted the trial.

The learned Sessions Judge framed charges under Section 302 IPC, read and explained to the appellant who abjured the guilt and entered into defence.

In order to bring home the offence, the prosecution has examined 16 following witnesses:-

Sl.

No.

Sl. No. of witness

Name of the witness

1.

PW-1

Shanti Bai Kosle

2.

PW-2

Ishwar Das

3.

PW-3

Anjan Kumar Mishra

4.

PW-4

Smt. Saraswati Goswami – Bhabhi of the deceased

5.

PW-5

Smt. Heera Bai Goswami – mother of the deceased

6.

PW-6

Deepak Barle

7.

PW-7

Lakhan Dhritlahre

8.

PW-8

Dr. Nandlal Bhuarya

9.

PW-9

Thanuram Markam – Police Constable

10.

PW-10

Naresh Kumar Koge – Police Inspector

11.

PW-11

Diamond Sen

12.

PW-12

Ajay Barmate

13.

PW-13

Bhushandas Manikpuri

14.

PW-14

Niranjan Sahu

15.

PW-15

Manish Singh Parihar – Police Inspector

16.

PW-16

Mahesh Kumar Dhritlahre

Besides aforesaid ocular evidence, prosecution also exhibited following documents:

Sl.No.

Exb.

Particulars

1

Ex-P/1

Statement Shanti Bai Kosle

2

Ex-P/2

Dehati nalishi

3

Ex-P/3

Dehati merg intimation

4

Ex-P/4

Statement of Ishwari Manikpuri

5

Ex-P/5

Spot map

6

EX-P/6

PM Report by Dr.Nandlal Bhuarya

7

Ex-P/7

Memo for query of seized articles and report- PM report

8

Ex-P/8

Memo for query of seized cloth of accused and report

9

Ex-P/9

Property seizure memo

10

Ex-P/10

Notice u/s 160 CrPC

11

Ex-P/11

Memorandum statement of Tikesh Sahu

12

Ex-P/12

Identification Panchnama of clothes by the appellant

13

Ex-P/13

Property seizure Memo

14

Ex-P/14

Arrest/Court surrender memo

15

Ex-P/15

Memo to FSL for chemical examination of seized articles.

16

Ex-P/16

Receipt of exhibits

17

Ex-P/17

FSL Report

18

Ex-P/18

Property seizure memo

19

Ex-P/19

Property seizure memo

20

Ex-P/20

Summons u/s 175 CrPC

21

Ex-P/21

Inquest report/Naksha Panchayatnama by Manish Singh Parihar (PW-15)

22

Ex-P/22

Spot map prepared by the police

23

Ex-P/23

Identification panchnama of deceased

24

Ex-P/24

Statement of Kanta Kujur

25

Ex-P/25

Crime Details Form

26

Ex-P/26

Statement of Rajkumar Kujur

27

Ex-P/27

Merg Intimation

28

Ex-P/28

Attached with ExP/03

29

Ex-P/29

Application for PM Report

30

Ex-P/30 & 18

Duty certificate

31

Ex-P/31

Arrest Information

32

Ex-P/32

Memo for FSL Report

33

Ex-P/33 & 34

Receipt of Exhibits

34

Ex-P/35

Covering Letter for FSL Report and FSL Report

After examination of prosecution witnesses, the appellant was examined under Section 313 CrPC in which he denied most of the circumstances appearing against him and he has stated that he has been arrested only on the basis of doubt, but he did not commit murder of Rameshwari.

The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 15.3.2023 convicted the appellant for offence under Section 302 IPC and sentenced him as mentioned in the preceding paragraph of this judgment, which is under challenge in this appeal.

Ku. K. Radhika, learned counsel for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for the offence under Section 302 IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. She would further submit that there is no eyewitness to the alleged crime, rather case of the prosecution is based only on circumstantial evidence, i.e. ‘last seen together’ theory, but it has not been proved by the prosecution . She would further submit that there is material contradiction with regard to colour of lower allegedly seized from the hotel of Shanti Bai and the lower which was got identified by the appellant vide Ex-P/12. Further alleged clothes were not seized at the behest of the appellant, none of the hotel staff have stated in their deposition that after leaving the hotel by the appellant with the deceased, the appellant had come back at hotel in the night, this fact itself crush the theory of last seen together because recovery of alleged blood stained T-shirt, which was seized from the hotel on the day of recovery of the dead body of the deceased and absence of proof that the appellant had returned to the hotel in the night raise finger of doubt towards other persons particularly Deepak Barle (PW-6) and Lakhan Dhritlahare (PW-7), who were hotel staff. It is further submitted that the prosecution has failed to prove any motive of the appellant in causing murder of the deceased. Thus, chain of circumstances has not been proved by the prosecution against the appellant, but learned trial Court without considering the aforesaid facts, only on the basis of conjectures and surmises and without relevant materials has convicted the appellant. Hence, it is prayed that the appeal may be allowed by the setting aside the impugned judgment passed by the learned trial Court.

On the other hand, learned counsel appearing for the State strongly objected the submission made by learned counsel for the appellant. He would further submits that although instant case is based on circumstantial evidence, but the prosecution has proved the chain of circumstances appearing against the appellant beyond reasonable doubt. He would further submit that Deepak Barle (PW-6) and Lakhan Dhritlahare (PW-7) are the witnesses of last seen together as they have clearly stated that on the previous night of date of recovery of the dead body, quarrel took place between the appellant and Rameshwari, then owner of the hotel Shanti Bai, ousted them from the hotel and thereafter they went together in the night and on the next day morning at about 9.00 am, dead body of Rameshwari was found behind the pond. It is further submitted that blood stained T-shirt of the appellant was recovered from the Hotel of Shanti Bai which was identified by the appellant as his own T-shirt. He would further submit that 5-6 months prior to the present incident, the appellant had assaulted Rameshwari on her neck by knife, therefore, she lodged report against the appellant at Police Station Rakhi, due of which, he used to quarrel with her and this was the motive of the appellant to cause murder of the deceased. He would lastly submit that the impugned judgment has been passed on due appreciation of the evidence and in accordance with law, hence, appeal is liable to be dismissed.

We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection.

The first question for consideration before this Court is whether death of deceased Rameshwari was homicidal in nature?

Investigating officer Manish Singh Parihar (PW-15) has prepared inquest report (Ex-P/21) before the witnesses wherein he has mentioned that deep injury was found on head of the deceased and her face was covered with the blood coming out from that injury.

Dr. Nandlal Bhuarya (PW-8) has conducted postmortem of dead body of the deceased and prepared postmortem report (Ex-P/6) in which he found following injuries on the body of the deceased:-

Lacerated wound of 2 ½ x 1 inch on right forehead with blood clot present, fracture of right frontal bone of head with clotted blood

Lacerated wound of 3 ½ x 1 inch on the left parietal of head with blood clot, fracture of left parietal bone of head with clotted blood

Lacerated wound of 3 x 1 inch on left occipital bone of head with blood clot present, fracture of left occipital bone of head with clotted blood

Fracture of upper incisor (two) teeth of jaw

Lacerated wound of 2 ½ x ½ inch on left frontal forehead with blood clot

The doctor opined that cause of death is shock and excessive hemorrhage due to head injury nature of death of deceased is homicidal in nature.

The trial Court after appreciating the oral and documentary evidence available on record, particularly relying upon the statement of Dr. NL Bhuarya (PW-8) has come to the conclusion that death was homicidal in nature.

After hearing learned counsel for the parties and going through the evidence available on record, we are of the considered opinion that the finding recorded by the trial Court that death of the deceased Rameshwari was homicidal in nature, is the finding of fact based on the evidence available on record. It is neither perverse nor contrary to the record. Hence, we hereby affirm that finding.

Now the next question for consideration, whether the trial Court has rightly recorded the finding that the appellant/ accused is the perpetrator of crime in question?

In the instant case, undisputedly, there is no direct evidence against the appellant, rather this case is based on circumstantial evidence. In this regard, the learned trial Court has found three circumstances appearing against the appellant in respect of commission of causing murder of the deceased and after appreciation of the evidence, the Court has found all the circumstances proved against the appellant and has held him guilty .

As per the case of the prosecution, following are the circumstances appearing against the appellant :-

(a) Since the appellant and deceased Rameshwari were quarreling in the Hotel of Shanti Bai, therefore, Shanti Bai had ousted them.

(b) On being ousted by Shanti Bai Kosle, hotel owner, the appellant and deceased Rameshwari left the hotel at about 7-8 pm on 18.5.2019 and Rameshwari was found dead at 8.30 am on 19.5.2019.

(c) On being search conducted in the hotel on 19.5.2019, apart from other items, blood stained full sleeve T-shirt was seized.

(d) The deceased was not married wife of the appellant, but they were living together for years prior to the incident, there was frequent quarrel between them and 4-5 months prior to the present incident, on being assaulted by the appellant on the neck of the deceased by knife, she lodged report against the appellant in Police Station Rakhi and due to this, the appellant used to quarrel with the deceased.

(e) The appellant absconded after the alleged crime and he failed to explain as to when and where he left the deceased alive.

As per the case of the prosecution, few days prior to the date of incident, the appellant and the deceased had come to work in the hotel of Shanti Bai Kosle (PW-1) and thereafter they were working there. This fact has been proved by Deepak Barle (PW-6) and Lakhan Dhritlahare (PW-7) in their deposition, who were also the staff of the said hotel. Although Shanti Bai (PW-1) herself has denied in her deposition that the appellant and the deceased were working in her hotel but she has admitted that when she returned from marriage then she found that two persons were quarreling, as per her deposition she was not aware of their names but she has further admitted that she had forbidden them to quarrel.

As per the deposition of the Diamond (PW-11), his saloon shop situates beside the hotel of Shanti Bai. This witness has also deposed that the appellant and his wife Rameshwari (deceased) used to come in the hotel of Shanti Bai. Thus, deposition of this witness also support the deposition of Deepak Barle (PW-6) and Lakhan Dhritlahare (PW-7).

Nothing has been brought in the cross-examination of the aforesaid witnesses to discredit their statement that the appellant and the deceased were working in the hotel of Shanti Bai few days prior to the incident, thus the aforesaid fact is found to be proved.

On the previous night of 19.5.2019, the appellant and the deceased were quarreling in the hotel of Shanti Bai, therefore, Shanti Bai ousted them from the hotel, thereafter the appellant and the deceased had left the hotel in the night itself. This fact has clearly been proved by Deepak Barle and Lakhan Dhritlahare who are also working in the said hotel. Although in the cross-examination, Deepak Balre and Lakhan Dhritlahare have stated that they do not know why they were quarreling and they have also stated that they did not know on which date the incident occurred, but from their deposition it is apparent that on the previous night of date of recovery of dead body of Rameshwari, on being ousted by Shanti Bai, the appellant and deceased left the hotel together.

Shanti Bai Kosle (PW-1), owner of the hotel, has not fully supported the case of the prosecution, but from her deposition, court statement of Deepak Barle (PW-6) and Lakhan Dhritlahare (PW-7) also got support upto the extend that in the night at her hotel, two persons were quarreling and she forbade them to quarrel. Nothing has been elicited in the cross-examination of Deepak Barle and Lakhan Dhritlahare to disbelieve their aforesaid statement. It is also not found from their deposition that they had any enmity with the appellant to falsely implicate him in such heinous crime. Hence, on the basis of deposition of Deepak Barle and Lakhan Dhritlahare it is proved that few days prior to the incident, the appellant and the deceased, who were living together as husband and wife, were working in the hotel of Shanti Bai Kosle and on the previous night of 19.5.2019 due to quarrel between the appellant and the deceased, Shanti Bai ousted them from the hotel.

On 19.5.2019 at about 8.30 am, dead body of Rameshwari was found behind of the Debhara pond. This fact is also proved by investigating officer Manish Singh (PW-15), material documents of the prosecution and other witnesses that dead body of Rameshwari was recovered from aforesaid place of incident.

Smt. Saraswati Goswami (PW-4) is sister-in-law (bhabhi) and Smt. Heera Bai Goswami (PW-5) is mother of the deceased. These witnesses have identified the dead body of Rameshwari on the date of recovery of her dead body. According to the deposition of Saraswati Goswami, the deceased eloped with the appellant 10 years back, mother of the deceased deposed that the deceased eloped with a Satnami boy. Thus, aforesaid statement of relatives of the deceased show that the deceased had relation with different persons at different time. The aforesaid deposition also show that the deceased was not formally married with the appellant (as per their rituals). Thus, aforesaid circumstances, ‘a’ & ‘b’ are found to be proved.

As per seizure memo (Ex-P/19), blood stained black colour lower, blood stained full sleeve green colour T-shirt, one iron rod and one bajaru jhumki were seized from the hotel of Shanti Bai on 19.5.2019, i.e. on the date the dead body of the deceased was recovered. The aforesaid seizure has been proved by Inspector Naresh Kumar (PW-10) and the same has been supported by Bhushan Das Manikpuri (PW-13). In the instant case, the appellant was arrested on 30.8.2019 vide arrest memo Ex-P/14. Thus, aforesaid articles were seized more than three months prior to the date of arrest of the appellant.

As per Identification Panchnama (Ex-P/12), the alleged lower and T-shirt had been got identified by the appellant which has also been supported by Inspector Naresh kumar Koge (PW-10) and Mahesh Kumar Dhritlahre (PW-16) who was the driver of the Inspector Naresh Kange(PW-10). But as per Ex-P/12 and statement of Naresh Kange (PW-10), the lower which was got identified by the appellant was of grey colour whereas lower allegedly seized vide Ex-P/19 was of black colour. Thus, there is material contradiction with regard to the colour of the alleged lower seized from the Hotel and the lower got identified from the appellant.

In the FSL report (Ex-P/17), blood stain has been reported to be found in the blood socked soil (A) seized from the spot and cement stone (C), T-shirt seized from the hotel of Shanti Bai (E), saree & blouse (G1 & G2) of the deceased. Thus, as per the FSL report (Ex-P/17), blood stains have been reported to be found on T-shirt and the same has been allegedly identified by the appellant as his own T-shirt. But blood stains have not been reported to be found in the plain soil (B), lower (D) and iron rod (F). Further in this report, only on blood stained soil and cement stone, human blood has been reported to be found. Thus, circumstance ‘c’ is also found proved.

On the basis of memorandum statement of the appellant, one Atlas cycle was seized, but nothing has been proved to connect this seizure of Atlas cycle in commission of the instant crime.

As per the case of the prosecution, the appellant after leaving the hotel of Shanti Bai along with Rameshwari, returned to the hotel in the night after commission of offence, after changing his clothes, he again left the hotel, therefore, the alleged articles mentioned in the seizure memo (Ex-P/19) were recovered from the hotel of Shanti Bai on 19.5.2019. But Deepak Barle and Lakhan Dhritlahre or any other witnesses have not stated in their deposition that after leaving the hotel by the appellant along with the deceased at about 7-8 pm, the appellant had returned to the Hotel and after changing the clothes, he again left the hotel. In absence of proof of such fact, seizure of aforesaid blood stained articles T-shirt on the same date of recovery of dead body of the deceased i.e. on 19.5.2019 raise fingers of doubt to other hotel staff, because if none of the witnesses have proved the fact of subsequent return of the appellant in the hotel, then question arise as to who brought the alleged aforesaid blood stained articles in the hotel of Shanti Bai?

The prosecution has not adduced any evidence to clarify this gray area of this case, therefore, this doubt destroy the theory of last seen together against the appellant as it cannot be ruled out that alleged murder of the deceased was caused by other persons or other hotel staff.

This suspicion become even darker because as per the seizure memo (Ex-P/19) black colour lower was seized from the hotel of Shanti Bai whereas, grey colour lower was got identified by the appellant.

In the case of State of Rajasthan vs. Kashi Ram, (2006)12 SCC 254, Hon’ble Supreme court has held on the principle of last seen together as under in para 19 to 23:

“19. Before adverting to the decisions relied upon by the counsel for the State, we may observe that whether an inference ought to be drawn under Section 106 IPC is a question which must be determined by reference to proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts.

20.In Joseph s/o Kooveli Poulo Vs. State of Kerala (2000) 5 SCC 197; the facts were that the deceased was an employee of a school. The appellant representing himself to be the husband of one of the sisters of Gracy, the deceased, went to the St. Mary's Convent where she was employed and on a false pretext that her mother was ill and had been admitted to a hospital took her away with the permission of the Sister in charge of the Convent, PW-5. The case of the prosecution was that later the appellant not only raped her and robbed her of her ornaments, but also laid her on the rail track to be run over by a passing train. It was also found as a fact that the deceased was last seen alive only in his company, and that on information furnished by the appellant in the course of investigation, the jewels of the deceased, which were sold to PW-11 by the appellant, were seized. There was clear evidence to prove that those jewels were worn by the deceased at the time when she left the Convent with the appellant. When questioned under Section 313 Cr.P.C., the appellant did not even attempt to explain or clarify the incriminating circumstances inculpating and connecting him with the crime by his adamant attitude of total denial of everything. In the background of such facts, the Court held:-

"Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra Vs. Suresh, (2000) 1 SCC 471). That missing link to connect the accused appellant, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy".

In Ram Gulam Chaudhary and Ors. Vs. State of Bihar (2001) 8 SCC 311; the facts proved at the trial were that the deceased boy was brutally assaulted by the appellants. When one of them declared that the boy was still alive and he should be killed, a chhura blow was inflicted on his chest. Thereafter, the appellants carried away the boy who was not seen alive thereafter. The appellants gave no explanation as to what they did after they took away the boy. The question arose whether in such facts Section 106 of the Evidence Act applied. This Court held:

"In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the court, there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference".

In Sahadevan alias Sagadevan Vs. State represented by Inspector of Police, Chennai (2003) Vol. 1 SCC 534, the prosecution established the fact that the deceased was seen in the company of the appellants from the morning of March 5, 1985 till at least 5 p.m. on that day when he was brought to his house, and thereafter his dead body was found in the morning of March 6, 1985. In the background of such facts the Court observed:

"Therefore, it has become obligatory on the appellants to satisfy the court as to how, where and in what manner Vadivelu parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. In the instant case the appellants have failed to discharge this onus. In their statement under Section 313 CrPC they have not taken any specific stand whatsoever".

It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatiable with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218.

The circumstances of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something 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 be lead to prove the guilt against the appellant. In the case of Nizam v. State of Rajasthan, (2016) 1 SCC 550, the Hon’ble Supreme Court after noticing Kashi Ram (supra) has observed in para 16 to 18 as under:

“16. In the light of the above, it is to be seen whether in the facts and circumstances of this case, whether the courts below were right in invoking the “last seen theory.” From the evidence discussed above, deceased-Manoj allegedly left in the truck DL-1GA-5943 on 23.01.2001. The body of deceased-Manoj was recovered on 26.01.2001. The prosecution has contended the accused persons were last seen with the deceased but the accused have not offered any plausible, cogent explanation as to what has happened to Manoj. Be it noted, that only if the prosecution has succeeded in proving the facts by definite evidence that the deceased was last seen alive in the company of the accused, a reasonable inference could be drawn against the accused and then only onus can be shifted on the accused under Section 106 of the Evidence Act.

During their questioning under Section 313 Cr.P.C., the accused- appellants denied Manoj having travelled in their truck No.DL-1GA-5943. As noticed earlier, body of Manoj was recovered only on 26.01.2001 after three days. The gap between the time when Manoj is alleged to have left in the truck No.DL-1GA-5943 and the recovery of the body is not so small, to draw an inference against the appellants. At this juncture, yet another aspect emerging from the evidence needs to be noted. From the statement made by Shahzad Khan (PW-4) the internal organ (penis) of the deceased was tied with rope and blood was oozing out from his nostrils. Maniya village, the place where the body of Manoj was recovered is alleged to be a notable place for prostitution where people from different areas come for enjoyment.

In view of the time gap between Manoj left in the truck and the recovery of the body and also the place and circumstances in which the body was recovered, possibility of others intervening cannot be ruled out. In the absence of definite evidence that appellants and deceased were last seen together and when the time gap is long, it would be dangerous to come to the conclusion that the appellants are responsible for the murder of Manoj and are guilty of committing murder of Manoj. Where time gap is long it would be unsafe to base the conviction on the “last seen theory”; it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution. From the facts and evidence, we find no other corroborative piece of evidence corroborating the last seen theory.

The cautionary note sounded in Nizam (supra) is important. The ‘last seen’ theory can be invoked only when the same stands proved beyond reasonable doubt. A 3-Judge Bench in Chotkau v. State of Uttar Pradesh, (2023) 6 SCC 742 opined as under:

“15. It is needless to point out that for the prosecution to successfully invoke Section 106 of the Evidence Act, they must first establish that thee was “any fact especially within the knowledge of the “ appellant….’

Thus, the principle of last seen theory is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company, he must furnish the explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fail to discharge the burden cast upon him by Section 106 of the Evidence Act.

In a case resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself proved an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatiable with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd. Ref. [AIR 1960 Madras, 218. : 1960 Cri LJ 620].

Applying the principle of law laid down by the Apex Court on last seen theory in the instant case, we find that on the previous night of 19.5.2019, on being ousted by Shanti Bai, as they were quarreling, the appellant and Rameshwari had left the hotel in the night and on the next day at about 8.30 am, Rameshwari was found dead. Thus, the appellant was last seen with the deceased. But as has been discussed above, the alleged blood stained articles T-shirt was seized vide Ex-P/19 on the same day, i.e. on 19.5.2019, but it has not been proved by the prosecution that after leaving the hotel at about 7-8 pm, the appellant returned to the hotel in the night of 18.5.2019 and after changing the blood stained clothes he again left the hotel. In absence of proof of aforesaid fact and also because of difference of colour of lower seized from the hotel and lower got identified from the appellant, it cannot be ruled out that other persons/ hotel staff have caused murder of the deceased and this suspicion crush the theory of last seen together against the appellant.

If the case is based on circumstantial evidence, then the proof of motive of the appellant in causing the murder become very vital in completion of chain of circumstances. In the instant case, as per the case of the prosecution, since the appellant and the deceased used to quarrel with each other and prior to 4-5 months of present incident, the appellant had assaulted the deceased on her neck by knife, therefore, she lodged report against him in Police Station Rakhi and due to this grudge, the appellant has killed her. But to substantiate this fact, nothing has been proved by the prosecution as neither any witness has supported the aforesaid fact nor the said FIR, charge sheet etc. has been proved by the prosecution, even no recovery of such document has been made by the investigating officer. Therefore, only on the basis of story narrated by the prosecution, without proving the aforesaid facts, by adducing evidence, aforesaid facts cannot be held proved, therefore, alleged motive of the appellant cannot be held proved. Thus, aforesaid circumstance ‘d’ is not turned to be proved.

In the instant case, the appellant and the deceased had left the hotel of Shanti Bai in the night of 18.5.2019, dead body of Rameshwari was found on 19.5.2019, thereafter the appellant was arrested on 30.8.2019. Based on the above facts, it was contended by learned counsel for the State that after the commission of crime, the appellant had absconded. To substantiate the aforesaid facts, nothing has been brought on evidence to show that after 18.5.2019, the appellant has absconded and even the investigating officer has not proved the fact as to how many times he had gone in search of the appellant in his native place or residential place. Therefore, it cannot be held that the appellant had absconded and could not be found.

The Supreme Court in Durga Burman Roy v. State of Sikkim (2014) 13 SCC 35, relying upon the decision in the matter of Sunil Kundu v. State of Jharkhand (2013) 4 SCC 422 held that absconding by itself does not prove the guilt of a person. A person may run away due to fear of false implication or arrest. It has been observed as under: -

“13. “To abscond” means, go away secretly or illegally and hurriedly to escape from custody or avoid arrest. It has come in evidence that the accused had told others that they were going from their place of work at Gangtok to their home at New Jalpaiguri. They were admittedly taken into custody from their respective houses only, at New Jalpaiguri on the third day of the incident. Therefore, it is difficult to hold that the accused had been absconding. Even assuming for argument’s sake that they were not seen at their work place after the alleged incident, it cannot be held that by itself an adverse inference is to be drawn against them ...”

Similarly, in Sunil Clifford Daniel v. State of Punjab (2012) 11 SCC 205, the Supreme Court has held that the mere act of absconding, on the part of the accused, alone does not necessarily lead to a final conclusion regarding the guilt of the accused, as even an innocent person may become panic-stricken and try to evade arrest, when suspected wrongly of committing a grave crime; such is in the instinct of self-preservation. It is held so accordingly.

Hence, it is not found in the instant case that after the incident, the appellant had absconded. Since the theory of last seen together is also not stand in the instant case against the appellant, therefore, circumstance ‘e’ also not found to be proved against the applicant.

It is cardinal principle in the administration of criminal justice that the accused cannot be convicted on the principle of preponderance of probabilities. It is the duty of the Court to ensure avoidness of miscarriage of justice at all caused and benefit of doubt, if any, given to the accused.

In the instant case, although it is found that on the previous night of 19.5.2019, the appellant had gone along with the deceased, but in view of the above discussion, we find that aforesaid theory of last seen is full of suspicion. Motive of the appellant has also not been proved. Thus, chain of circumstances have neither been completely established nor guilt of the accused alone, having committed the crime to be proven, much less beyond reasonable doubt which are otherwise required to be proved in view of the accused revolving around the circumstantial evidence in the land mark case of Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 which reads as thus:

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, where the following observations were made: (SCC p. 807, para 19)

'19....Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(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.”

In view of the above discussion, we find that prosecution has failed to prove the case against the appellant beyond reasonable doubt, but, the learned trial Court by misreading the evidence erred in finding the appellant guilty of having committed the crime, charged for under Section 302 IPC. Hence, we set aside the finding of guilt and sentence arrived at vide judgment dated 15.3.2023 by the learned trial Court.

Accordingly, conviction and sentence against the appellant under Section 302 IPC is hereby set aside and he is acquitted of the said charges. The appellant is in jail. He be set at liberty forthwith, if not required in any other case.

The appellant is directed to file personal bond and one surety in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the CrPC.

Let a copy of this judgment and original record be transmitted to the trial Court concerned forthwith for necessary information and compliance.

Accordingly, the appeal stands allowed.