Penal Code, 1860 – ss.302, 364, 201 – The prosecution case was that the victim ‘H’, aged about 7 years, went missing on 8.10.1999 – On 10.10.1999, his dead body was found in the sugarcane field of ‘Y’ in Village – The victim’s father (PW-1) filed an application u/s. 156(3) Cr.P.C. on 19.11.1999 – FIR was recorded on 21.11.1999 – In the FIR, the informant alleged that he was told by PW-3 and PW-2 that they had seen A-3 taking deceased boy ‘H’ into her house on 08.10.1999 – PW-4 told him that on 09.10.1999 at about 6 AM, he had seen ‘H’ standing along with A-1 and A-2 on the road near Y’s sugarcane field – In the trial, the prosecution relied on the testimony of 12 witnesses – The trial court convicted the appellants u/s. 302 IPC and sentenced them to life imprisonment as well as 7 years u/s.364, IPC and imprisonment for 5 years u/s. 201, IPC – The High court affirmed the trial court’s findings – On appeal, held: The prosecution was not able to prove its case as there were serious flaws in the testimonies of two sets of witnesses (PWs 2 & 3 and PW- 4 & 5) who deposed to seeing the deceased with A-3 and the first two accused, on 08.10.1999 and 09.10.1999, respectively – PW-1’s conduct, in not stating anything during inquest proceedings, despite being informed about seeing the boy in the company of A-3 on 08.10.1999, and later, on the early morning of 09.10.1999, by PW-2, PW-3 and PW-4, undermines the prosecution story – In the present case, save the “last seen” theory; there is no other circumstance or evidence – The time gap between when the deceased was seen in the company of the accused and the probable time of his death, based on the post mortem report, is not narrow – Therefore, solely relying on the “last seen” circumstance to convict the accused-appellants is unjustified.
Allowing the appeals, the Court
HELD: 1. The conviction is solely based on the testimonies of two sets of witnesses, PW-4 and PW-5. PW-5 is a cousin of PW969 1, and his behaviour in not interceding upon seeing the 7-yearold crying boy in the company of the accused, away from his house and despite knowing about the previous enmity between the parties, is unnatural. The police statement of PW-5 was recorded more than two months after the start of investigation, and the application under Section 156(3) CrPC does not mention that he had witnessed the boy with the accused despite the witness’s statement that he informed PW-1 about what he saw. [Para 18][977-F-G; 978-B]
2. PW-4’s testimony that he saw the deceased in the company of first two appellants is unreliable, as him being a resident of Akbarpur, went out to answer the call of nature at 6 AM to another village as Y’s field was located at village Narayanpur and returned home immediately, then, there is no explanation how he knew that the accused were standing at a specific spot. Besides this, it is unnatural and improbable that one as close a neighbour of PW-1 living 8-10 paces away would not be aware that the boy went missing on 8.10.1999. [Para 19][978-E-G]
3. There is no explanation why PW-1, despite being told by PW-2 and PW-3 that they had seen A-3 taking victim ‘H’ in her house holding his hand, did not mention the involvement of A-3 in the inquest proceedings. PW-7, who is witness to inquest, deposed about the presence of PW-1 to PW-5 during the inquest renders suspect the deposition of PW-2 and weakens the testimony of PW-5, who claims to have left the village on 09-101999 and returned only on 12-10-1999. [Para 20][979-E-G]
4. In circumstantial evidence cases, to sustain conviction, the panchsheel principles laid down in Sharad Birdichand Sarda v. State of Maharashtra must be fulfilled. However, in present case, prosecution is not able to prove the case beyond reasonable doubt. There are serious flaws in the testimonies of two sets of witnesses (PW-2, PW-3 & PW-4, PW-5) who deposed to seeing the deceased with A-3 and the first two accused (A-1 and A-2), on 08.10.1999 and 09.10.1999, respectively. There are flaws in their testimonies regarding their presence at the place and time and with respect to the knowledge of PW-1. PW-1’s conduct, in not stating anything during inquest proceedings, despite being informed about seeing the boy in the company of A-3 on 08.10.1999, and later, on the early morning of 09.10.1999, by PW2, PW-3 and PW-4, undermines the prosecution story. The conduct of PW-4 and PW-5 in not taking any steps to ensure the safety of the child despite knowing the previous enmity or grudge on the part of the accused is unnatural. [Paras 21-22][980-C; 987C-F]
Sarad Birdichand Sarda v. State of Maharashtra [1985]
1 SCR 88– relied on.
6. The “last seen” doctrine has limited application, wherein the time lag between the time the deceased was seen last with the accused and the time of murder, is narrow; furthermore, the court should not convict an accused only on that basis. In the present case, save the “last seen” theory, there is no other circumstance or evidence. The time gap between when the deceased was seen in the company of the accused on 09-10-1999 and the probable time of his death based on the post mortem report is not narrow. Given this fact, and the serious inconsistencies in the depositions of the witnesses, and the fact that the FIR was lodged almost 6 weeks after the incident, the sole reliance on the “last seen” circumstance to convict the accused-appellants is not justified. [Paras 23, 25][981-H; 982-A; 984-D-E]
Jaswant Gir v. State of Punjab (2005) 12 SCC 438; Rambraksh @ Jalim v. State of Chhattisgarh [2016] 2 SCR 599; Nizam & Ors. v. State of Rajasthan [2015]
10 SCR 786 – relied on.
Hanumant v. The State of Madhya Pradesh [1952] 1 SCR 1091; Tanviben Pankajkumar Divetia v. State of Gujarat (1997) 7 SCC 1 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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