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AFR

RESERVED

Court No. - 41

Case :- CRIMINAL APPEAL No. - 309 of 1999

Appellant :- Rajjan @ Yogesh Kumar

Respondent :- State Of U.P.

Counsel for Appellant :- Ravindra Singh,Akhilesh Singh,Dinesh

Kumar Maurya,Shivam Yadav

Counsel for Respondent :- Govt. Advocate

Hon'ble Bachchoo Lal,J.

Hon'ble Pradeep Kumar Srivastava,J.

(Delivered by Hon’ble Pradeep Kumar Srivastava, J.)

1.Heard Sri Akhilesh Singh, learned counsel for the appellant and

learned A.G.A. for the State. Perused the record.

2.This criminal appeal has been preferred against the impugned

order dated 12.02.1999, passed by 3

rd

Additional District & Sessions

Judge, Farrukhabad, in Sessions Trial No. 407 of 1987 (State vs.

Rajjan and another), Case Crime No. 244 of 1984, under Sections 302

and 201 I.P.C., Police Station Chhibramau. District Farrukhabad by

which the accused-appellant Rajjan @ Yogesh Kumar has been

convicted and sentenced under Section 302 I.P.C. for life

imprisonment along with fine of Rs. 5000/- and in default one year

additional rigorous imprisonment and under Section 201 I.P.C. for five

years rigorous imprisonment along with fine of Rs. 3000/- and in

default six months additional rigorous imprisonment. It has further

been directed that both the sentences shall run concurrently. However,

in the absence of sufficient evidences, other accused Vivek Kumar

was acquitted from the charges leveled under Section 302/201 IPC.

3.As per prosecution version from the morning of 07.07.1984 to

08.07.1984 (exact time is not known) on Saurikh Road, Police Station

Chhibramau, Farrukhabad, the accused persons namely Rajjan @

Yogesh and Vivek Kumar in furtherance of their common intention,

caused the death of Smt. Ram Nandini by causing stab injuries by

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knife. The dead body was thrown in a well so that the dead body may

be destroyed and this they did in order to wash the evidence against

them.

4.The report was lodged with regard to recovery of the dead body

by Chowkidar, Police Station Chhibramau on 08.07.1984 orally that a

dead body is lying in the dry well. The whereabouts of the dead

woman could not be known. The woman is young. This oral report

was entered into the GD on the same day and the police took the dead

body into possession and the recovered blood stained bricks, plain

bricks, slippers and piceces of broken bangles were also taken into

possession from the spot and which were separately sealed. The

inquest report was prepared. At the time of inquest, injuries caused by

the knife were found on the body of the deceased. No incriminating

material was found around the well due to which it appeared that she

was killed somewhere else and her body was thrown in the well.

Thereafter, the case was registered under Sections 302 and 201 IPC.

5.The case was investigated and during investigation some local

persons sent a letter in which it was mentioned that the woman was

killed by accused Rajjan @ Yogesh Kumar and his friend. The

husband of the deceased when came from the field on 06.07.1984,

was informed by his elder sister-in-law (Bhabhi) that his wife has

gone to her parents Rajjan @ Yogesh Kumar. She gave her the key of

the house. The husband continued searching his wife for 6 to 7 days

but did not find her either on her parental house or on the house of the

sister of Rajjan @ Yogesh Kumar. On 25.07.1984, the husband lodged

a first information report against Rajjan @ Yogesh Kumar for the

offence under Section 498 IPC and continued searching her and

Rajjan @ Yogesh Kumar. Later on, he came to know that a dead body

has been recovered in Village Chhibramau in the previous month. He

went to the police station and on the basis of her clothes, slippers and

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photo of the dead body, he recognized to be of his wife Ram Nandini.

His statement and the statements of Dhaniram and Munna Lal was

recorded by the Investigating Officer and the Investigating Officer

came to a conclusion that Ram Nandini was killed by Rajjan @

Yogesh Kumar and his friend Vivek Kumar by causing injuries by

knife and after taking her ornaments, they threw her dead body in the

well. Regarding motive for the commission of the offence, it was also

found during investigation that accused Rajjan @ Yogesh Kumar is

the brother of the brother-in-law (Saarhu) of the husband of deceased

Ram Nandini. He is aged about 24-25 years and the deceased was also

of similar age and he used to come to her and was having illicit

relationship with the deceased. The people knew her to be his keep.

On 06.07.1984, wearing her ornaments, she went with Rajjan @

Yogesh Kumar and because she was insisting him to solemnize court

marriage with her, the accused persons killed her.

6.After finding sufficient evidence against the accused persons,

charge sheet was submitted by the Investigating Officer under the

aforesaid sections.

7.The learned trial court framed charges against the accused

persons for the offences under Sections 302 and 201 IPC. The accused

persons denied the charges and claimed trial.

8.The prosecution examined PW-1 Munshi, PW-2 Lala Ram, PW-

3 Munna Lal, PW-4 Dhani Ram. PW-5 Khannu Singh, PW-6

Chandrabhan Singh, PW-7 Harvansh Singh, PW-8 Dr. K.K.

Jagatyyani, PW-9 Suresh, PW-10 Ram Sewak Gupta and PW-11 Ram

Awatar, who have stated about the incident and proved the

documentary evidence.

9.The statement of accused persons were recorded under Section

313 Cr.P.C., wherein they have stated that they have been falsely

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implicated in the present case due to enmity with Munna Lal who is

brother-in-law (Saarhu) of the husband of the deceased.

10.After hearing counsel for both the sides, the learned trial court

has acquitted co-accused Vivek Kumar and convicted and sentenced

the present accused-appellant Rajjan @ Yogesh Kumar for the

offences under Section 302 and 201 I.P.C.

11.Feeling aggrieved by the impugned judgment, the convicted

appellant has filed the present criminal appeal stating that the

impugned conviction and sentence is against the weight of evidence

on record and is contrary to law and the sentences awarded is too

severe. The impugned judgment is liable to be set aside and the

appellant is entitled for acquittal.

12.Learned counsel for the appellant has submitted that there is no

eye witness who might have seen the occurrence nor anybody saw the

accused causing injuries to the deceased and throwing her dead body

in the well. Moreover, there was no reason for the accused-appellant

to kill the deceased if he was having illicit relationship with her. There

is no evidence on record to link the appellant with the commission of

offence. Moreover, the co-accused has been acquitted on the basis of

same evidence by the impugned order.

13.On the other hand, learned A.G.A. has argued that the chain of

circumstances proved by the prosecution has established the guilt

beyond any shadow of doubt against the appellant and on the basis of

evidence on record, the learned trial court has rightly convicted and

sentenced him.

14.PW-1 Munshi is the witness who saw the people gathered

around the well in which the dead body of the deceased was lying and

he gave information in the police station and during statement he

signed over the G.D. Ext. Ka-1.

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15.PW-2 Lala Ram is the husband of the deceased who has stated

that the deceased was his wife and was aged about 22-24 years who

was healthy and of fair complexion. The accused Rajjan took her from

his house when he was on his field. He came to know about it, when

he came back and did not find his wife and the door of the house was

closed. His Sister-in-law (Bhabhi) informed him that his wife has

gone to her parents with Rajjan, leaving behind his elder son Sonu. He

has stated that his wife used to go and come back to her parents but

when she did not come back in 10-12 days, he went to her parents'

house and when he told that she did not come there, he went to her

sister but she also told that she did not come there. He inquired about

Rajjan and found that his tea shop which is situated at road ways bus

stand was closed. He was told by local persons that Rajjan is not

coming from 10-15 days and the shop is closed. Then he filed a report

against Rajjan which he filed before the court at the time of statement

and proved the same as Ext. Ka-1. He has further stated that he

continued searching his wife and after about a month, he went to

Chhibramau market. He found the people talking about the dead body

of a woman recovered from the well. He consulted his family

members and after 12-13 days, he went to Police Station Chhibramau

and on inquiry he was shown the clothes after breaking the seal and

by the clothes, he recognized that the same was of his wife as she used

to wear that clothes in the house. The recovered clothes, broken

bangles and slippers have been proved by him in his examination as

Material Exts. 1 to 5. Rajjan used to come to his house and he was in

his relation and he believes that he must have killed his wife. She

went with Rajjan wearing ornaments of about Rs. 10,000/-.

16.PW-3 Munnal Lal has stated that he knows Rajjan who is

relative of Lala Ram and he used to come to the house of Lal Ram. He

saw the deceased coming with Rajjan on 06.08.1984 at 10 A.M. and

both went to Chhibramau on a bus. At that time, he was sitting on a

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pulia where the bus used to stop and witness Dhani Ram was also

present there, who also saw the deceased coming with Rajjan. Both

PW-3 and Dhani Ram were grazing their buffalos. He has sated that

since then he never saw the deceased. Lala Ram had gone to search

out his wife and when he came back, he informed him about it.

17.PW-4 Dhani Ram has also stated that when he and Munna Lal

were grazing their buffalos. From the road side pulia they saw the

deceased going with accused Rajjan on a bus to Chhibramau.

Thereafter, he never saw the deceased.

18.PW-5 Khunnu Singh has not stated anything in support of

prosecution version, hence he has been declared hostile.

19.PW-6 S.I. Chandrabhan Singh has stated that he got the

investigation of the case on 11.08.1984 and prior to him, the case was

being investigated by S.I. Harvansh Singh and SI V.K. Gupta. After

recording the statements of the witnesses and completing the

investigation, he submitted charge sheet against both the accused

persons which is Ext. Ka-2.

20.PW-7 S.I. Harvansh Singh has stated that he recovered the dead

body of the deceased from the well along with other articles. He

prepared the inquest report which is Ext. Ka-2, photo lash Ext. Ka-3,

letter to CMO Ext. Ka-4, Challan dead body Ext. Ka-5, recovery

memo of slipper and broken bangles Ext. Ka-6, memo of blood

stained bricks and plain bricks Ext. Ka-7 and sight map Ext. Ka-8.

21.PW-8 Dr. K.K. Jagatyani has conducted post-mortem of the

dead body on 09.07.1984 which was brought by Constable Raj

Narayan Singh and Constable Kailash Singh of Police Station

Chhibramau in sealed condition along with relevant papers and they

also identified the dead body of the deceased. The postmortem report

has been proved by this witness as Ext. Ka-9. According to doctor, the

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deceased must have died about 1 and 1 ½ days ago. In the external

examination it was found that the rigor mortis was passed from the

upper portion of the body and was present in the lower limb. The

following ante-mortem injuries were found on the dead body of the

deceased :-

External Examination :-

(i) Incised would 8 cm. X 8.5 cm. X scull deep in the

right side of the head.

(ii) Incised wound 3 cm. X 0.5 cm. X bone deep above

the left eye.

(iii) Incised wound 2.5 cm. X 0.5 cm. X bond deep on

the left side of the lower jaw.

(iv) Multiple incised wounds, seven in number in the

area of 11 cm. X 7 cm. on the front portion of the

neck.

(v) Multiple stabbed injuries in the abdomen area of 22

cm. X 20 cm. Smallest injury was 0.5 cm. X 0.5 cm.

and the deepest injury was 4 cm. X 1 cm. with clean

cut.

Internal Examination :-

Both lungs and its membranes were found in decomposed

conditions. Cuttings were found in the pharynx and esophagus. Liver

was found incised and empty. Small and large intestines were found

incised at several places and liver was also found incised. In the

abdomen cavity of liver, two liters of blood and liquid stool were

found in mixed condition.

According to doctor, the deceased was died due to ante-mortem

injuries, shock, hemorrhage and heavy bleeding. All the injuries found

on the body of the deceased were possible to have been caused by

knife and were sufficient to cause death. The death was possible on

07.07.1984 in between 08:00 to 08:30 PM.

22.PW-9 Suresh Chandra has been declared hostile, who has not

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supported the prosecution version.

23.PW-10 Ram Sewak Gupta has also been declared hostile.

24.PW-11 Ram Awatar has stated that Lala Ram is his younger

brother and his wife was Ram Nandini. Both have two children. Ram

Nandini used to come and go to her parents' house. His brother Lala

Ram has lodged a missing report in police station about his wife. The

dead body was recovered from the well. When she went from her

house, she was wearing ornaments. He did not see when the dead

body was recovered from the well. He identified the clothes of the

deceased after 12-13 days. On recovery of the dead body, accused

Rajjan fled away and was not on his shop and the shop remained

closed.

25.There is no evidence of any witness who might have seen the

accused causing death of the deceased and the prosecution case is

based on circumstantial evidence of “last seen together” and two

witnesses have been examined to prove this fact. In State of Rajasthan

Vs. Kheraj Ram, (2003) 8 SCC 224, Vilas Pandurang Patil Vs. State

of Maharashtra, (2004) 6 SCC 158, Arun Bhanudas Pawar Vs. State

of Maharashtra, 2008 (61) ACC 32 (SC) Vithal Eknath Adlinge Vs.

State of Maharashtra, AIR 2009 SC 2067 and Vijay Kumar Vs. State

of Rajasthan, (2014) 3 SCC 412, the Supreme Court has laid down

that circumstantial evidence, in order to be relied on, must satisfy the

following tests :

1. Circumstances from which an inference of guilt is

sought to be drawn must be cogently and firmly

established.

2. Those circumstances must be of a definite tendency

unerringly pointing towards guilt of the accused.

3. The circumstances, taken cumulatively, should form

a chain so complete that there is no escape from

conclusion that within all human probability the crime

was committed by the accused and none else.

4. The circumstantial evidence in order to sustain

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conviction must be complete and incapable of

explanation of any other hypothesis than that of the

guilt of the accused but should be inconsistent with his

innocence- in other words, the circumstances should

exclude every possible hypothesis except the one to be

proved.

26.In Bhimsingh Vs. State of Uttarakhand, (2015) 4 SCC 281, it

was laid down that when the conviction is to be based on

circumstantial evidence solely, then there should not be any snap in

the chain of circumstances. If there is a snap in the chain, the

accused in entitled to benefit of doubt. If some of the circumstances

in the chain can be explained by any other reasonable hypothesis,

then also the accused is entitled to the benefit of doubt. But in

assessing the evidence, imaginary possibilities have no place. The

court considers ordinary human probabilities.

27.In Rohtas Kumar Vs. State of Haryana, 2013 (82) ACC 401

(SC), Prithipal Singh Vs. State of Punjab, (2012) 1 SCC 10, it has

been further laid down that The doctrine of "last seen together" shifts

the burden of proof on the accused requiring him to explain how the

incident had occurred. Failure on the part of the accused to furnish

any explanation in this regard would give rise to a very strong

presumption against him.

28.Further, in Ashok Vs. State of Maharashtra, (2015) 4 SCC 393,

it was explained by the Supreme Court that initial burden of proof is

on prosecution to adduce sufficient evidence pointing towards guilt of

accused. However, in case it is established that accused was last seen

together with the deceased, prosecution is exempted to prove exact

happening of incident as accused himself would have special

knowledge of incident and thus would have burden of proof as per

Section 106, Evidence Act. But last seen together itself is not

conclusive proof but along with other circumstances surrounding the

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incident like relations between accused and deceased, enmity

between them, previous history of hostility, recovery of weapon from

accused, etc. non-explanation of death of deceased, etc.etc. may lead

to a presumption of guilt of accused.

29.In this case the dead body of a woman (the deceased) was seen

by the village Choukidar lying in a dry well and he reported the same

on 8.7.1984 at 2.30 P.M. to the P.S. Chhibramau of which an entry

was made by police in the corresponding G.D. The police took the

dead body in possession. It was found by the inspection of the dead

body that multiple incised, stabbed and cut wounds were present on

her body. Inquest was prepared on the same day and after completing

the formalities, the dead body was sent for postmortem to the District

Hospital. The police also registered an offence under section 302,201

I.P.C. against unknown person as Crime No.244 of 1984.

30.The postmortem was conducted by PW-8 Dr. K. K. Jagatyani

on 9.7.1984 at 2.15 P.M. and he has stated that multiple ante-mortem

incised, stabbed and cut wounds were found on the body of deceased

caused by knife on all over the body from abdomen to face and head.

According to doctor, the deceased was died due to ante-mortem

injuries, shock, hemorrhage and heavy bleeding. All the injuries

found on the body of the deceased were possible to have been caused

by knife and were sufficient to cause death. The death was possible

on 07.07.1984 in between 08:00 to 08:30 P.M. and it appears that

after causing death, the dead body was thrown into the well. It is

pertinent to mention that by the time of postmortem, the deceased

was not identified nor the reason of killing and the assailant had come

to light.

31.The learned trial court has taken the reference of letters sent by

some unknown persons to police attached in the file as paper no. 11A

to 11A-2 and 11A-3 stating the persons involved in the murder of

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deceased and one of the name finds mention of accused Rajjan and

his companions. In other letter the deceased has been identified to be

Veena Pathak. But in none of the letters, the deceased has been

identified to be Smt. Ramnandini w/o Lalaram (PW-2). It is not

understandable why the learned trial court took reference of those

letters which were not authenticated by any evidence nor it appears

how the police used those letters for the purpose of this case. It

appears that in none of the statement of witnesses, particularly formal

witnesses/I.O., it has not been clarified when and on what date the

dead body was identified and by whom for the first time.

32.It is pertinent to mention that the C.D. (case dairy) is not

attached in the lower court record nor it was provided to us by the

learned A.G.A. even though we asked during arguments. But

unfortunately, we could not get a positive answer and it was said that

it is a very old case and it will be very difficult to get it searched and

made available. So we do not have help of C.D. which might become

helpful in appreciating the sequence of investigation and exact date of

discovery of particular fact and the facts narrated by the learned trial

court. It is why we have to narrate the prosecution version in the way

the same has been narrated by the learned trial court in the impugned

judgment. In fact, we have almost reproduce the same without getting

those facts verified by C.D., since there is no F.I.R. in this case.

Therefore, we have to understand that sequence by the statement of

witnesses.

33.The incident took place on 8.7.1984 when the dead body was

for the first time seen by the village Choukidar. On 19.8.1984, the

statement of Lalaram (husband of deceased) and his brother Ramautar

have been examined by I.O. PW-6, as he has stated in his statement. It

means that after 40 days from the discovery of dead body, the two

close relatives of the deceased have been examined. In all possibility,

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the deceased must have been identified thereafter by them as the I.O.

has stated that on 20.8.1984, he got informed about the deceased.

34.To begin with the analysis of the statement of PW-11 Ramautar

who is the elder brother of Lalaram. He has stated that he does not

know whether the accused took the deceased a day before her dead

body was discovered. He has however stated that accused Rajjan used

to come to the house of Lalaram as he was his relative being younger

brother of his brother in law (husband of deceased sister). He has

stated that after 12-13 days from the date of discovery of the dead

body, he identified her dress as he had seen the deceased wearing that

dress earlier. It was black petticoat and blouse and sari printed with

black flower. He gave his statement to I.O. after 12-13 days. He has

denied that he ever gave statement to I.O. that one day before, she

went with Rajjan locking her house and delivering the key to the wife

of his brother Ramkishan. One more thing this witness has stated that

Lalaram had lodged a missing report about his wife.

35.PW-2 is Lalaram and the correctness of the statements of both

the witnesses needs to be compared and tested on the basis of

evidence of each other. He has stated that his bhabhi (wife of elder

brother) told him that his wife (deceased) has gone to her parents with

Rajjan leaving his elder son Sonu and key of his house with her.

Bhabhi has not been examined nor she is a witness in charge sheet

who could have been the best witness of this fact. He has stated that

his wife used to go to her parents and come back and therefore, for

10-12 days he waited for her. When she did not come back, he went

to her parents and was informed that she did not come to them. He

did not even find her to her sister in law in Atrouli (Rajjans' house).

He went to Rajjan's shop at Bus Station and found that shop is closed

and Rajjan is missing from the last 10-15 days. Then he lodged a

F.I.R. against Rajjan and the copy of F.I.R. was filed by the witness

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which is Ext. Ka-2. From the perusal of Ext Ka-2, it appears that in

PS Talgram, the witness lodged N.C.R. against Rajjan on 25.7.1984

for the offence under section 498 I.P.C. with allegation that Rajjan

has eloped with his wife Rajnandini on 6.7.1984 with ornaments

gold, valuable and cash with her. The witness in the F.I.R. are Dhani

Ram And Munna Lal who have been examined as PW-3 and PW-4 in

this case. After that he continued searching her for some times. He

started searching her after 10-12 days, continued searching for next

17-18 days. Thereafter, when he went to Chhibramau market, he

heard some people talking that identity of the dead body of the

woman recovered from well is yet not known. Then, after 12-13 days,

with due consultation with family members, he went to Police

Station, Chhibaramau where S.O. showed him dresses of the dead

body which were sealed and he recognized them to be of her wife. He

has also identified and proved the wearings while giving statement on

oath in court.

36.It appears from the statement of both witnesses that none of

them are witness of any relevant fact nor they saw deceased going

from house with accused. Except that they identified wearings of

deceased, there is nothing important in their statement. PW-6 IO has

stated that the deceased house situated at Bamrouli and from there,

PS Chhibaramau is at the distance of 10-12 km. It appears strange

that a person whose wife was missing since long, could not know

about the discovery of dead body earlier which must have become

talk of the town looking to her young age and in the brutal way she

was caused to death, particularly when his brother Ramautar

examined as PW-11 has stated that he identified the wearings after

12-13 days from the date of recovery of dead body.

37.PW-3 Munnalal and PW-4 Dhani Ram are the star witnesses of

circumstance of “last seen together” and both have stated that they

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saw both Rajjan and Rajnandini on 6.7.1984 at about 10 A.M. getting

the bus and going to Chhibaramau. At that time they were grazing

their buffalo sitting on a pulia. The time of death as ascertained by

postmortem report is on 7.7.1984 at about 8-8.30 P.M. It means there

is gap of about 34 hours between last seen together by two witnesses

and death of deceased. Both the witnesses are of same village and

their residence is at the distant of less than 100 yards from the house

of deceased. Both have stated that they informed about it to Lalaram

after 17-18 days. The statement of both these witnesses was taken by

IO after about two and half months.

38.Three more witnesses have been examined by prosecution but

they did not support prosecution version nor proved any other

circumstance showing involvement of accused-appellant in the

murder of deceased. PW-5 is Khunnu Singh who has stated that he

did not see accused killing some woman and this he has said twice- in

examination-in-chief and after being declared hostile, when cross-

examined by the prosecutor. He has further stated that he does not

know if such statement was written by police. PW-9 Suresh Chand,

though has stated that he knew accused as while going to Kanpur in

relation to business, he used to take tea on his shop. He has stated that

he never saw the deceased on his shop nor he saw her going with

Rajjan on Rickshaw in the night of the date of incident. Although, he

has nowhere stated the deceased to be keep of accused, in his

statement the word 'keep' has occurred more than once, probably for

the reason that while putting questions this word was used by the

prosecution with a view to indicate that the deceased was his 'keep.'

Similar statement has been given by PW-10 Ramsewak Gupta. All

these three witnesses have been declared hostile.

39.Since C.D. is not provided, it is not clear what statement all

these three witnesses had given to I.O. from which the prosecution

15

derived support and made them witness. But, from the overall

statements of these witnesses, a rough idea is possible in this regard.

PW-5 has been examined as a witness who allegedly saw accused

committing murder to which he denied. It means that the only witness

who was supposed to give direct evidence in support of prosecution

has not not supported the prosecution. It also means that the

prosecution case was based on direct as well as circumstantial

evidence. This option is not open to prosecution to shift the case

from direct evidence to circumstantial evidence. PW-9 was a witness

who saw the deceased and accused going on rickshaw in the night of

the date of incident, a fact to which he has denied. PW-10 was

examined to show the conduct of accused that on 7.7.1984 in the

night, accused came very disturbed and asked scooter from painter

and the witness has denied to this statement. It also goes to indicate

that the prosecution case based on the “last seen together” evidence of

PW-3 and PW-4, is not correct as subsequent to them, allegedly, she

was seen by above mentioned witnesses whose support was necessary

for the prosecution.

40.In a case based on circumstantial evidence, it is always

important to allege and prove strong motive for the commission of

offence as motive provides a link to complete the chain. Except that

the deceased went with accused no motive appears to have been

alleged by prosecution. The learned trial court has narrated in the

impugned judgment that regarding motive for the commission of the

offence, it was also found during investigation that accused Rajjan @

Yogesh Kumar is the brother of the brother-in-law (Saarhu) of the

husband of deceased Ram Nandini. He is aged about 24-25 years and

the deceased was also of similar age. The accused used to come to

her and was having illicit relationship with the deceased. The people

knew her to be his keep. On 06.07.1984, wearing her ornaments, she

went with Rajjan @ Yogesh Kumar and because she was insisting

16

him to solemnize court marriage with her, the accused persons killed

her. For attributing this motive, the learned trial court has taken a

reference of police report which was submitted by police on bail

application of accused and with the help of same, has given a finding

that both had developed illicit relation and the deceased was insisting

for marriage, and therefore, the accused committed murder. None of

the prosecution witness has stated this motive in on oath statement.

PW-2 who is the husband of the deceased and PW-11, his elder

brother, have simply stated that the accused was relative and he used

to come to their house. In the statement of PW-9 Suresh Chandra and

PW-10 Ramsewak Gupta have been examined, but they have

nowhere stated the deceased to be keep of the accused. No witness

has been examined to prove that the deceased ever insisted the

accused for court marriage. In reading the police report in evidence

and thereby imputing motive on that basis and giving finding

regarding existence of motive is perverse and illegal. We are firmly of

the view that in absence of any admissible evidence, such finding

could not be given by the learned trial court. Secondly, if the accused

was in relation with the deceased, he was in a beneficial situation and

there is no evidence to show that because of some very annoying

reason which occurred subsequently, he decided to remove her. In

such situation, absence of any motive casts shadow of doubts on

prosecution case.

41.A joint study of several judgments of the Supreme Court

regarding presence of motive in cases based on circumstantial

evidence such as Babu Vs. State of Kerala, (2010) 9 SCC 189,

Ravinder Kumar Vs. State of Punjab, 2001(2) JIC 981 (SC), State of

H.P. Vs. Jeet Singh, (1999) 4 SCC 370, Nathuni Yadav Vs. State of

Bihar, (1998) 9 SCC 238, Sakha Ram Vs. State of M.P., 1992 CrLJ

861 (SC), Jagdish Vs. State of M.P., 2009 (67) ACC 295 (SC) and G.

Parshwanath Vs. State of Karnataka, AIR 2010 SC 2914, it is clear

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that the law is two fold depending upon the conclusiveness of the

circumstances proved in a particular case. Normally, prosecution

should prove motive in a case based on circumstantial evidence. But,

absence of motive in a case based on circumstantial evidence is not of

much consequence when proved circumstances is so conclusive that it

completes the chain in itself raising the only hypothesis that is the

guilt of the accused.

42.In State of Goa Vs. Pandurang Mohite, AIR 2009 SC 1066,

State of U.P. Vs. Satish, 2005 (3) SCC 114 and Sardar Khan Vs. State

of Karnataka, (2004) 2 SCC 442, it has been remarked that

circumstances of “last seen together” do not by themselves and

necessarily lead to the inference that it was accused who committed

the crime. There must be something more establishing connectivity

between the accused and the crime. The time gap between last seen

alive and the recovery of dead body must be so small that the

possibility of any person other than the accused being the author of

the crime becomes impossible.

43.In Niranjan Panja Vs. State of W.B,(2010) 6 SCC 525 and

State of U.P. Vs. Satish, (2005) 3 SCC 114, it has been further

affirmed by the Supreme Court that the last seen theory comes into

play where the time-gap between the point of time when the accused

and the deceased were seen last alive and when the deceased is found

dead is so small that possibility of any person other than the accused

being the author of the crime becomes impossible. It would be

difficult in some cases to positively establish that the deceased was

last seen with the accused when there is a long gap and possibility of

other persons coming in between exists.

44.Recently, in Ravi vs State of Karnataka, AIR 2018 SC 2744,

reversing the conviction based on “last seen together” where there

was a time gap of four days between last seen and recovery of dead

18

body and as per postmortem report the death must have occurred 30

hours ago, the Supreme Court held that the time gap was considerably

large and no corroboration was forthcoming, and therefore, in

absence of any other circumstance which could connect the accused

with crime, reasonable doubt as to involvement of accused is created

and in such situation, the burden would not shift under section 106 of

the Evidence Act. Following the judgment in Mohibur Rahman vs

State of Assam, (2002) 6 SCC 715 and Malleshappa vs State of

Karnataka, (2007) 13 SCC 399, the court held:

“'Last seen together' is certainly a strong piece of

circumstantial evidence against an accused. However, as it

has been held in numerous pronouncements of this Court,

the time lag between the occurrence of the death and when

the accused was last seen in the company of the deceased

has to be reasonably close to permit an inference of guilt to

be drawn. When the time lag is considerably large,....., it

would be safer for the court to look for corroboration.”

45.Now, considering the law laid down and factual situation in

Ravi (supra), and comparing to the fact situation of this instant case,

we find that time gap between the fact of “last seen together” and

death of deceased is about 34 hours. The two witnesses who have

proved the circumstance of “last seen together” are not the persons

who last saw the two together and the prosecution proposed to prove

the prosecution version by even direct evidence by a witness who saw

the accused killing the deceased and by evidence of witness who also

allegedly saw them together subsequently, but these witnesses turned

hostile. “Last seen together” may be a conclusive circumstance

depending upon the facts of a particular case. For instance, if two

persons were last seen staying together in the night in a hotel room

and next morning one was found to have been killed, the

circumstance of last seen is enough conclusive and the burden to

prove otherwise will certainly shift on the other person and in such

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case, unless otherwise is proved, the presence or absence of motive

becomes insignificant. But if those two persons were seen traveling in

a public transport and after more than 24 hours the other is found

dead, the time gap will become relevant and some more incriminating

evidence shall be required to corroborate the circumstance of last

seen to complete the chain and prove the guilt. There is no evidence

further corroborating such as recovery of any incriminating article

such as knife used for causing death or any other evidence of like

nature.

46.In view of above discussion, we find that the learned trial court

has committed error in holding that the chain of circumstances was

complete to reach a finding of guilt against accused-appellant. The

impugned judgment is perverse, illegal and not sustainable under law

and is liable to be set aside.

47.Therefore, the appeal is allowed. The impugned judgment

dated 12.02.1999, passed by 3

rd

Additional District & Sessions Judge,

Farrukhabad, in Sessions Trial No. 407 of 1987 (State vs. Rajjan and

another), Case Crime No. 244 of 1984, under Sections 302 and 201

I.P.C., Police Station Chhibramau. District Farrukhabad convicting

and sentencing the accused-appellant is set aside. Consequently, the

accused-appellant Rajjan @ Yogesh Kumar is acquitted.

48.If the accused-appellant Rajjan @ Yogesh Kumar is in jail, he

shall be released forthwith.

49. The office is directed to transmit back the lower court record to

the learned trial court immediately along with a copy of this judgment

for information and compliance.

Order Date :- 01.10.2019

sailesh

(Hon'ble Pradeep Kumar Srivastava,J.) (Hon'ble Bachchoo Lal,J.)