An Accused Should Not Be Convicted On The Basis Of “last Seen”: Supreme Court

CASE TITLE:

Jabir & Ors. v. The State of Uttarakhand.

DATE OF ORDER:

17 January 2023.

JUDGE(S):

Justice S. Ravindra Bhat, Pamidighantam Sri Narasimha.

PARTIES:

Petitioner: Jabir & Ors.

Respondent: The State of Uttarakhand.

SUBJECT:

In the present case, the appellants were accused of murdering a woman and her son. They were found guilty of the charges and were sentenced to life imprisonment as well as seven years under Section 364 of the Indian Penal Code, 1860 and imprisonment for five years under Section 201 of the same code. The conviction and sentence were upheld by the Uttarakhand High Court.

BRIEF FACTS: 

• This case is about the disappearance and eventual death of Haseen, a 7 year old boy from the village of Akbarpur. On October 8th 1999, Haseen went missing. 
• Two days later, on October 10th, his dead body was found in the sugarcane field of Yaqub in Village Narayanpur, which was situated some distance away from Akbarpur. Information was sent to the Police Station Manglor and an inquest was conducted by the ASI Dalchand. 
• A post-mortem was conducted on October 11th 1999 by Dr. A.K. Jain, which indicated that death had occurred about two days before the post-mortem examination. 
• PW-1 Bisarat moved an application under Section 156(3) of the Cr. PC on 19.11.1999, which resulted in the first information report (FIR) being recorded on 21.11.1999. 
• The informant (PW-1) alleged that his son Haseen had gone missing since 3 PM on 08.10.1999, and despite search, he could not be found. 
• He then went to PS Manglor on 10.10.1999 and it was there that he found out that Haseen's body had been found. 
• Witnesses PW-3 and PW-2 told PW-1 that they had seen A-3 Husn Jahan taking deceased boy Haseen into her house on 08.10.1999 at about 3.30 PM. 
• Witness PW-4 told PW-1 that he had seen Haseen standing along with A-1 Jabir and A-2 Jakir on the road near Yaqub’s sugarcane filed on 09.10.1999 at about 6 AM. PW-1 then went to PS Manglor to lodge the report on the morning of 12.
• The appellants were charged with a crime and the prosecution relied on the testimony of 12 witnesses to prove their guilt. The appellants did not present any witnesses in their defence and were found guilty by the trial court. The High Court then upheld the conviction of the appellants.

QUESTIONS RAISED:

Whether the testimonies of the two sets of witnesses can be used to prove the crime against the accused?

ARGUMENTS ADVANCED BY THE APPELLANT:

• The appellant contended that the conviction and sentence imposed in this case is unsustainable due to the fact that no reason was given why the FIR was lodged almost five weeks after the deceased boy went missing and after his body was found. 
• It was further argued that the application under section 156(3) Cr. P.C. was moved after more than a month and there was no explanation for the delay.
• Furthermore, the appellant counsel referred to the discrepancy in the testimonies of witnesses in the criminal case and submitted that the father of the deceased (PW-1) is said that he voiced suspicion of the accused's involvement in the case shortly after the body of the deceased was found. 
• However, other witnesses such as PW-4 and PW-5 have not supported this version of events. 
• Additionally, the inquest report does not reflect the fact that the accused's role was not known to PW-1 and others on the day the body was found.
• It is being suggested by the appellant counsel that the prosecution witnesses are not reliable and their testimony should not be considered because they were added as after thoughts. 
• It is further argued that the accused were named much after the incident due to enmity between the families. 
• The defense counsel also points out that PW 8, the first investigating officer, testified that PW 2 did not mention the role of A3 and that she was with the deceased on 8th October 1999. 
• Lastly, it is argued that the villagers initially suspected Saleem and Mansoor, not the present accused.
• The counsel is arguing that the prosecution's witnesses, P-4 and PW-5, are unreliable as their police statement was recorded much after the incident. Furthermore, the deceased's father, PW-1, did not mention having been told about the involvement of the first two appellants by PW-5 in his written complaint. 
• It is also argued that the 'last seen' theory is an afterthought and concocted due to the fact that the other witnesses related to the deceased had kept silent for two days before telling Bisarat PW-1 about the incident. 
• Lastly, it is highlighted that all prosecution witnesses belonged to the same family and had a motive to falsely implicate the appellants due to a previous incident in 1996. All of these arguments are used to cast doubt on the reliability of the prosecution's witnesses and the evidence presented.
• The Court relied on three cases to argue that in circumstantial evidence cases, each incriminating circumstance must be clearly established by reliable and clinching evidence. 
• Hanumant vs. The State of Madhya Pradesh. [1952 (1) SCR 1091]
• Sharad Birdhi Chand Sarda vs. State of Maharashtra. [1985 (1) SCR 88]
• Tanviben Pankajkumar Divetia vs. State of Gujarat. [1997 (7) SCC 156]
• The court must make sure that each circumstance in the chain of events is established and the chain of events must be such that the innocence of the accused is ruled out. The court is cautioned against allowing suspicion to take the place of legal proof and is reminded that there is a long mental distance between "may be true" and "must be true". 
• Lastly, it is argued that the prosecution was unable to prove each circumstance beyond reasonable doubt, leading to the appellants' conviction.

ARGUMENTS ADVANCED BY THE RESPONDENT:

• In this case, the counsel for the state argued that the concurrent findings of the trial court and the High Court should not be disturbed. He argued that the delay in lodging the FIR was explained by the fact that the father of the deceased was trying to search for the boy before going to the police. 
• The counsel also pointed to the testimony of the eyewitnesses who saw the appellants with the boy, and the post mortem which showed the boy had died from shock due to injuries caused by violence. 
• The counsel noted that the father had tried to complain to the police but was unsuccessful and had to approach the magistrate under Section 156 (3) Cr. PC.
• The counsel referred to the statement of two witnesses, PW4 and PW-5, who testified that they saw the deceased boy in the company of the first two accused early in the morning near the place where his body was later discovered. The informant reported this immediately after the body was discovered, so they cannot be faulted for not taking prompt action. The inquest held the next day concluded that the death occurred under suspicious circumstances due to the nature of the injuries on the deceased's body.
• It was submitted that the informant had made a complaint to the police, however it was not acted upon. After the investigation took place, statements from witnesses were collected and a charge sheet was filed accusing all three appellants. Witnesses 2 and 3 stated that the third appellant had been seen holding the deceased boy's hands on 8.10.1999, while witnesses 4 and 5 stated they had seen the deceased boy in the company of the first two appellants the next day. The testimonies of the witnesses had conclusively established the appellants' guilt.

ANALYSIS OF THE COURT:

• This court is of the opinion that the testimonies of two sets of witnesses (PWs2 &3 and PW-4 &5) cannot be relied upon to prove the guilt of the accused. 
• The court points out the inconsistencies in the testimonies, including the lack of knowledge of PW-1, the flaws in their testimonies regarding their presence at the place and time, as well as other glaring inconsistencies. 
• The court also points out the lack of evidence (oral or material) connecting the accused to the crime. 
• Furthermore, the court emphasizes that the "last seen" doctrine has limited application, and an accused should not be convicted solely on the basis of this doctrine. 
• Reliance was placed upon the following cases-
• Jaswant Gir vs. State of Punjab. [2005 (12) SCC 438]
• Rambraksh vs. State of Chhattisgarh. [7 2016 (12) SCC 251]
• Nizam & Ors. v State of Rajasthan. [8 2016 (1) SCC 550]
• The Court stated that the conviction and sentence of the appellant accused cannot be sustained and thereby allowed the present appeal. It was also directed to release the appellants unless they are required in any other case.

CONCLUSION

In the present case, the court has taken into consideration all the evidence put forth by the prosecution and the defense and has analyzed the discrepancies in the testimonies of the witnesses. The court ultimately concluded that the prosecution had failed to establish the guilt of the accused beyond a reasonable doubt and the conviction and sentence imposed on the appellants cannot be sustained. The court therefore allowed the present appeal and directed to release the appellants unless they are required in any other case.

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