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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 462 of 2016

(Arising out of SLP(Crl.) No.1962 of 2015)

Rambraksh @ Jalim .. Appellant

versus

State of Chhattisgarh .. Respondent

J U D G M E N T

C. NAGAPPAN, J.

1.Leave granted. This appeal is preferred against the

judgment dated 25.7.2014 of the High Court of

Chhatisgarh at Bilaspur in Criminal Appeal No.470 of

2001.

2.The appellant Rambraksh @ Jalim was accused No.2

and Bechan Ram was accused No.1 in the case in

Sessions Trial No.133 of 1993, on the file of Additional

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Sessions Judge, Surajpur, and they were tried for the

offences under Section 302 read with 34 and Section

201 of Indian Penal Code. The trial court acquitted

accused No.1 Bechan Ram and at the same time

convicted accused No.2 Rambraksh and sentenced him

to undergo imprisonment for life and to pay a fine of

Rs.500 and in default to undergo rigorous

imprisonment for five months for the offence under

Section 302 IPC and further sentenced him to undergo

two years rigorous imprisonment and to pay a fine of

Rs.100 in default to undergo rigorous imprisonment for

one month for the offence under Section 201 IPC and

ordered the sentences to run concurrently. Aggrieved by

the conviction and sentence accused No.2 Rambraksh

preferred criminal appeal and the High Court dismissed

the same. Challenging the said judgment the present

appeal is preferred.

3.The case of the prosecution in a nutshell is as follows:

On 7.10.1992 appellant herein/accused No.2

Rambraksh went to the house of deceased Ramsevak at

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12.00 noon and asked to go with him to Ambikapur.

Ramsevak refused saying that he does not have money

and accused No.2 assured that he has money and he

would come at night and they would go to Ambikapur by

the first bus in the early morning. Thereafter he along

with accused No.1 came to the house of Ramsevak at

11.00 p.m. and told him that they will proceed towards

chowki from where they will board the bus to

Ambikapur. Ramsevak went with accused and

thereafter did not return home. On 14.10.1992, Rajesh

son of Ramsevak inquired about his father to his mother

PW3 Dasmatiya Bai and she told him that his father had

gone with accused to Ambikapur and then Rajesh

informed her that he had gone with Kamlesh and PW5

Banshidhar to their field and he noticed clothes,

gamcha and shoes of his father in the field. PW3

Dasmatiya Bai along with her son went to the said place

and found the articles of her husband and on noticing

birds flying near one place they went there and she

found skeleton remains of her husband. She went to

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Chandni Police Station and lodged Exh.P2 morque and

the police recorded Morque vide Exh.P1. The

investigation officer visited the scene of occurrence and

conducted inquest on the scattered bones vide Exh.P5.

Report vide Exh. P4. He seized from the spot one

bamboo stick vide Exh.P6, pair of shoes vide Exh.P7,

towel, pant, shirt, banjan and underwear vide Exh.P8,

Bloodstained and plain soil vide Exh.P9, Hairs found on

the spot vide Exh.P10. The human bones i.e. skull,

jaw, legs and ribs were seized from the spot vide

Exh.P13. He sent the bones of dead body for autopsy

and PW6 Dr. Arvind Bhat on examination found the

following :

“1 skull bone with 13 teeth.

·2 humerus bones

·1 vertebral column broken in three pieces each

attached with each other with left femur attached

with pelvis (detail of vertebral colum, sacrum, 5

lumber vertebrae, 12 thoracic vertebrae),

·One mandible attached 7 teech

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·Two broken scapula

·Nine ribs

·Two broken long bones (one simulating to tibia

and one simulating to femur)

·One radio ulna bones

·One broken ulna

·3 vertebrae

·2 detached tooth

·4 pieces of broken bones.”

Thereafter, dehati nalishi was recorded and FIR was

registered vide Exh.P.18. Spot map was prepared vide Exh.

P19. Bones were sent to Medical College, Raipur and PW10

Dr. Sapan Kumar Das examined the bones vide Exh.P23 and

opined as follows:

(a)These bones are of human origin

(b)Sex-Male

(c)Age-Between 25 to 40 years

(d)No marks of injury present to any of the bones

(e)Cause of death cannot be said

(f)Time lapse since death-within 6 months of the date

of examination.

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4.In the course of investigation accused No.1 Bechan Ram

was arrested and he made disclosure statement leading

to recovery of banjan and towel vide Exh.P11, P16 and

P17. The accused No.2 was arrested and he made

disclosure statement leading to recovery of stick and

clothes vide Exh.P12, P14 and P15. The seized articles

were sent for chemical examination vide Exh.P19. On

completion of investigation charge-sheet was filed

against both the accused.

5. In the trial prosecution examined ten witnesses and the

accused were examined under Section 313 of Cr.P.C.

and their statements were recorded. No defence witness

was examined. The trial court acquitted accused No.1

and convicted and sentenced accused No.2 as stated

supra. The appeal preferred by him came to be

dismissed and aggrieved by the same accused No.2 has

preferred the present appeal.

6.The learned counsel for the appellant contended that it

was alleged that deceased Ramsevak was last seen alive

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in the company of the appellant on 7.10.1992 and bones

were noticed in the field and seized on 14.10.1992

namely 7 days after such last seen theory and there is

long time gap and in the absence of any other

corroborative piece of evidence the conviction of the

appellant only on the basis of last seen theory is not

sustainable law. It is his further submission that

prosecution has not even established the death of

Ramsevak and there is no evidence adduced by the

prosecution to show that bones recovered were those of

deceased Ramsevak and the medical evidence does not

in any way advance the prosecution case. Lastly, it is

contended that there was inordinate delay of 7 days in

filing the complaint and PW3 Dasmatiya Bai made

material improvements in her testimony before the court

and the testimony cannot be relied on. Per contra the

learned counsel appearing for the respondent State

contended that the prosecution has established through

evidence of PW3 Dasmatiya Bai that her husband

Ramsevak was taken from house by the appellant and in

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the absence of any explanation from the appellant as to

when he parted company, the Courts below rightly

convicted the appellant for the offence of murder and the

judgment warrants no interference.

7.The prosecution case rests only upon the circumstantial

evidence. The Sessions Judge as well as the High Court

mainly relied upon the evidence of the wife of the

deceased PW3 Dasmatiya Bai to hold the appellant guilty

of the charges. PW3 Dasmatiya Bai in her complaint as

well as in the statement given to the police during

investigation has stated that on 7.10.1992 at about

12.00 noon the appellant/accused No.2 came to their

house and told her husband Ramsevak to come with

him to Ambikapur and left the place by saying that he

would return with money in the night and they would

leave by the early morning bus to Ambikapur. It is her

further testimony that both the accused came to their

house in the night at about 10.00 p.m. and took her

husband Ramsevak with them at 11.00 p.m. for

Ambikapur and after that her husband Ramsevak never

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returned home. She has further stated that on

14.10.1992 her son Rajesh inquired about the

whereabouts of his father and informed her that he went

to the field of Kamlesh where he saw gamcha, shirt, pant

and shoes of his father. Thereafter, she went along with

him and found the articles of her husband lying in torn

condition in the field and on noticing the flying of birds

near that place she went and saw the bones of dead

body lying scattered and she identified the same as that

of her husband and she went to the Police Station and

lodged complaint. When she gave evidence as PW3 in

the trial before the Court she testified that the accused

came to their house at night and took her husband to

Ambikapur and after they left she heard scream of her

husband and she ran to the place and saw the

appellant/accused No.2 Rambraksh and accused No.1

Bechan Ram assaulting her husband Ramsevak by lathi

and Danda and when she tried to intervene, she was

driven away and in the morning while going to police

chowki she saw her husband Ramsevak lying dead in

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the field and she informed the Munshi at Chandni Police

Station and she was asked to come later when called

and thereafter she waited for 7 days and then again

went to the Police Station and lodged the complaint. As

already stated PW3 Dasmatiya Bai in her complaint as

well as her statement before the police has not told that

she witnessed the occurrence during which both the

accused assaulted her husband with lathi and Danda.

Only in her testimony before the Court she claimed to

have witnessed the occurrence. The High Court has

rightly ignored the improved part of her testimony and

placed no reliance on it.

8.The bones, articles, clothes and shoes allegedly

belonging to Ramsevak were recovered on 15.10.1992.

Exh.P2 Morgue given by Dasmatiya Bai was recorded

and the FIR came to be registered on 15.10.1992. There

is absolutely no explanation given by the prosecution for

the inordinate delay in lodging the complaint and

registering the case. The independent witnesses

examined by the prosecution have not supported the

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case. As per last seen theory projected by the

prosecution the deceased Ramsevak was last seen alive

in the company of the appellant on 7.10.1992 and after

7 days the bones and clothes allegedly belonging to

Ramsevak came to be noticed and thereafter seized from

the field. At this juncture, it is pertinent to point out

that they were not seized/recovered pursuant to any

information furnished by the accused.

9.The contention for the learned counsel for the appellant

that the prosecution has not even established the death

of Ramsevak cannot be brushed aside. The investigation

officer seized the bones from the field vide Exh.P13 and

sent them for autopsy. PW6 Dr. Arvind Bhat in his

report Exh.P10 gave an account of the bones forming the

skeleton. Thereafter they were sent to Medical College,

Raipur, and PW10 Dr. Sapan Kumar Das examined

them and gave Exh.P23 opinion stating that the bones

are of human origin and they belonged to male aged

between 25 to 40 years and there were no marks of

injury in any of the bones and the cause of death cannot

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be said and the death could have occurred within 6

months prior to the date of examination. The

Investigation Officer did not take any attempt to

conduct DNA analysis of bones to prove that the

skeleton seized was that of Ramsevak. In short the

prosecution has failed to prove the death of Ramsevak

either homicidal or otherwise.

10.It is trite law that a conviction cannot be recorded

against the accused merely on the ground that the

accused was last seen with the deceased. In other

words, a conviction cannot be based on the only

circumstance of last seen together. Normally, 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 perpetrator of the crime becomes

impossible. To record a conviction, the last seen

together itself would not be sufficient and the

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prosecution has to complete the chain of circumstances

to bring home the guilt of the accused.

11.In a similar fact situation this Court in the case of

Krishnan v. State of Tamil Nadu [(2014) 12 SCC 279,

held as follows:

“21. The conviction cannot be based only on

circumstance of last seen together with the

deceased. In Arjun Marik v. State of Bihar (1994)

Supp (2) SCC 372)

“31. Thus the evidence that the appellant had

gone to Sitaram in the evening of 19-7-1985

and had stayed in the night at the house of

deceased Sitaram is very shaky and

inconclusive. Even if it is accepted that they

were there it would at best amount to be the

evidence of the appellants having been seen

last together with the deceased. But it is

settled law that the only circumstance of last

seen will not complete the chain of

circumstances to record the finding that it is

consistent only with the hypothesis of the guilt

of the accused and, therefore, no conviction on

that basis alone can be founded.”

22. This Court in Bodhraj v. State of J&K (2002) 8

SCC 45) held that:

“31. The last seen theory comes into play

where the time gap between the point of time

when the accused and the deceased were last

seen alive and when the deceased is found

dead is so small that possibility of any person

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other than the accused being the author of

the crime becomes impossible.”

It will be hazardous to come to a conclusion of

guilt in cases where there is no other positive

evidence to conclude that the accused and the

deceased were last seen together.

23. There is unexplained delay of six days in

lodging the FIR. As per prosecution story the

deceased Manikandan was last seen on 4-4-2004

at Vadakkumelur Village during Panguni Uthiram

Festival at Mariyamman Temple. The body of the

deceased was taken from the borewell by the fire

service personnel after more than seven days.

There is no other positive material on record to

show that the deceased was last seen together with

the accused and in the intervening period of seven

days there was nobody in contact with the

deceased.

24. In Jaswant Gir v. State of Punjab (2005) 12

SCC 438), this Court held that in the absence of

any other links in the chain of circumstantial

evidence, the appellant cannot be convicted solely

on the basis of “last seen together” even if version

of the prosecution witness in this regard is

believed.

12.In the present case as noticed above the Sessions

Court as well as the High Court convicted the appellant/

accused No.2 on the basis of last seen evidence, the

correctness of which is also doubtful. The High Court

had failed to appreciate the aforesaid fact and erred in

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affirming the judgment of conviction passed by the

Sessions Court. We are satisfied that the conviction of

the appellant cannot be sustained in law and liable to be

set aside.

13.The appeal is allowed and the impugned judgment of

conviction and sentence imposed on the appellant is set

aside. The appellant is ordered to be set at liberty

forthwith if not required in any other case.

…….….……………………….J.

(JAGDISH SINGH KHEHAR)

….……………………………..J.

(C. NAGAPPAN)

New Delhi

May 12, 2016

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ITEM NO.1A COURT NO.3 SECTION IIA

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No(s).462/2016 @ SLP(CRL.)NO.1962/2015

RAMBRAKSH @ JALIM Appellant(s)

VERSUS

STATE OF CHHATTISGARH Respondent(s)

HEARD BY HON'BLE JAGDISH SINGH KHEHAR AND HON'BLE C. NAGAPPAN,

JJ.]

Date : 12/05/2016 This appeal was called on for pronouncement

today.

For Appellant(s) Mr. Yogesh Tiwari, Adv.

for Mr. Vikrant Singh Bais,AOR

For Respondent(s) Mr. C. D. Singh,AAG

Ms. Sakshi Kakkar, Adv.

Hon'ble Mr. Justice C. Nagappan pronounced the judgment

of the Bench comprising Hon'ble Mr. Justice Jagdish Singh Khehar

and His Lordship.

For the reasons recorded in the Reportable judgment,

which is placed on the file, the appeal is allowed and the

impugned judgment of conviction and sentence imposed on the

appellant is set aside. The appellant is ordered to be set at

liberty forthwith, if not required in any other case.

(Renuka Sadana) (Parveen Kumar)

Court Master AR-cum-PS