STATE OF KARNATAKA Vs CHAND BASHA
Bench: PINAKI CHANDRA GHOSE,R.K. AGRAWAL
Case number: Crl.A. No.-001547-001547 / 2011
Diary number: 32542 / 2007
Advocates: ANITHA SHENOY Vs
SHIPRA GHOSE
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NON REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1547 OF 2011
STATE OF KARNATAKA ….. APPELLANT
VERSUS
CHAND BASHA ….. RESPONDENT
JUDGMENT
Pinaki Chandra Ghose, J.
1. This appeal, by special leave, has been directed against the
judgment and order dated 1st March, 2007 passed by the High
Court of Karnataka at Bangalore in Criminal Appeal No.
1047/2003, whereby the High Court allowed the criminal appeal
filed by the respondent herein and acquitted him.
2. The brief facts necessary to dispose of this appeal are that one
Ganesh, a daily-wage mason, went missing on 16.01.2001. On
20.01.2001, PW1 D. Ramu, Dhobi by profession, saw a dead body
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floating in a well near the Dhobi Ghat with hands tied at the back
and the ankles were also tied. The police recovered the dead body,
shifted it to Bowring Hospital Mortuary and thereafter published
the photograph of the dead body in the newspaper. From this
photograph, PW3 father of the deceased, reached the Bowring
Hospital and identified the body as that of his son Ganesh. PW1
lodged a complaint with K.G. Halli Police Station and investigation
started, and from the apprehension of PW3, accused Chand Basha
was arrested on 23.01.2001. The investigation revealed that on
17.01.2001, PW12 (Appu) told PW3 that his son had gone to a wet
party with the accused on 16.01.2001. The said wet party took
place at Sindhur Bar at Lingarajapuram. PW5 (the bar-boy) and
PW6 (owner of the bar) testified that on 16.01.2001, the accused
along with one other person visited their bar. Building further, the
investigation came across with PW8 (shopkeeper) who testified that
the accused along with one other person bought 2 cigarettes from
his shop on 16.01.2001 at 10 p.m., and the accused thereafter
was arrested on 23.01.2001, but the deceased was never seen alive
again.
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3. Police filed the charge sheet against accused Chand Basha,
after which charges for offence punishable under Sections 302 and
201 of the Indian Penal Code, 1860 (hereinafter referred to as
“IPC”) were framed by the Trial Court and the charges were read
over and explained to the accused but he pleaded not guilty and
claimed trial.
4. The Trial Court by its judgment and order dated 14.02.2003,
convicted the respondent Chand Basha for the offence punishable
under Section 302 IPC and sentenced him to rigorous
imprisonment for life and a fine of Rs.15,000/- , and in default of
payment of fine, further rigorous imprisonment for six months was
awarded. Being aggrieved by the aforesaid judgment and order of
the Trial Court, the respondent-accused filed an appeal before the
High Court of Karnataka at Bangalore, being Criminal Appeal
No.1047 of 2003. The High Court by the impugned judgment and
order allowed the criminal appeal on the ground that the
prosecution might have proved the motive but had miserably failed
to prove the incriminating last seen circumstance and had also
failed to successfully prove the discovery evidence. The High Court
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held that the death may be a homicidal, but there is no evidence to
connect the accused with the crime. In view of the aforesaid
discrepancies, the High Court set aside the order of conviction
passed by the Trial Court and acquitted the respondent.
5. The Appellant - State has challenged before us the judgment
of acquittal passed by the High Court. Learned counsel for the
appellant has inter alia raised the following grounds as
incriminating circumstances in this appeal. Firstly, the motive
behind the murder of the deceased was consistently and cogently
proved by the testimony of PW3 father of the deceased, and PW4
sister of the deceased. Agreeing to this submission, the High Court
also held that motive can be successfully attributed upon the
accused that he wanted to marry PW4 (sister of the deceased)
which was vehemently disapproved by the deceased and PW3
(father). Secondly, the death was argued to be homicidal and there
is already a concurrent finding of the courts below that the death
was homicidal. Thirdly, the present case rests on the last seen
theory, and by the consistent testimonies of PW5 (bar-boy), PW6
(owner of the bar), PW8 (shopkeeper) and PW12 (Appu), it was
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proved that on 16.01.2001 the deceased was last seen in the
company of the accused. Lastly, the learned counsel for State rests
her case on the recovery of the material objects at the voluntary
instance of the accused. This recovery has itself been testified by
independent witnesses.
6. Learned senior counsel appearing for the respondent rebutted
the arguments advanced by the appellant State by putting his
weight on the decision arrived at by the High Court. Learned
senior counsel appearing for the respondent did not rebut the
arguments put forward to prove the motive and also that the death
was homicidal. However, it was argued that the ‘last seen together’
theory was not proved beyond reasonable doubt. The discovery of
material objects was argued on the line of the High Court decision
to be an artificial theory. Learned senior counsel went ahead
arguing that the extra-judicial confession made by the accused to
PW4, who narrated it to PW3, was not trustworthy. Attention was
also drawn to the cross-examination of PW12 who contradicted his
examination-in-chief that it was Raju Mistry and not the accused
who hosted the wet party.
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7. The Trial Court convicted the respondent on the basis of the
prosecution story of 'last seen together' corroborated with
'recovery of material objects' and the 'motive of the accused'. The
High Court also dealt with the issue and held that the Trial Court
failed to appreciate the discrepancies occurring in the evidences.
The High Court has examined at length the record of the case and
reversed the finding of the Trial Court.
8. In the present appeal, we are concerned with the last
two contentions as to whether the ‘last seen together’ theory has
been proved beyond reasonable doubt and also whether the
recovery is a naturally occurring fact or an artificially planted one?
9. The High Court pointed out discrepancies in the statements of
PW5 and PW6. Both the witnesses stated that they did not
personally know the deceased and neither of them were friends to
him nor they ever took his personal details. It was only during the
investigation on 24.01.2001, that the two came to know that the
deceased’s name was Ganesh. The High Court considered the fact
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of recovery of material objects, but disbelieved the recovery of
Saree and shoe lace as ‘artificial’ as they could not adduce
confidence of having occurred naturally in the chain of events.
10. We have heard the learned counsel appearing for the
appellant as also the learned senior counsel appearing for the
respondent and have perused the records. The prosecution story
relies upon the 'last seen together’ theory as its pivotal evidence
which is hereunder examined. The prosecution examined PW5,
PW 6 and PW8 to prove the ‘last seen theory’. PW5 the bar boy
claims to be the person who served the accused and one more
person with 3 quarters of RR Brandi and 1 Knock-Out beer on
16.01.2001. PW6 is the owner of the bar who testified in his
statement that the accused came along with one other person.
These witnesses were first questioned by the Investigation Officer
on 24.01.2001 and both deposed before the Court that their bar is
usually crowded and they neither make personal interaction to
each and every customer nor do they take details of each of their
customers. PW 5 and PW6 also deposed that the two persons were
also served 2 fried chicken. According to these witnesses, the two
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customers were served at about 8:30 PM. PW8 (shopkeeper) is
another prosecution witness who testified that at about 10.00 PM
on 16.01.2001, the accused along with one other person came to
his shop and bought two cigarettes of Rs.2/- each. This witness
has also deposed that he does not personally know the accused or
the other accompanying person. On careful examination of their
depositions and cross-examination and also in light of the other
medical evidence, some doubt is raised upon the chain of events.
PW5 and PW6 stated that they were not personally acquainted to
the accused. However, during investigation when the Investigating
Officer, accompanied by the accused, asked them, they were able
to identify him as their customer who came on 16.01.2001 along
with one other person. At this point of time, the Investigating
Officer disclosed the name of that other person as Ganesh and
stated that he was dead. Thereafter, PW6 did not depose about any
photograph being shown to him. However, PW5 was shown a
photograph of the deceased and thereby he stated that he was the
same person who was present with the accused on 16.01.2001.
The role of the Investigating Officer is therefore doubted, as within
a very short span of time, why PW6 was not shown the photograph
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and only PW5 was shown the photograph of the deceased. PW5
also did not disclose the details of the photograph, but it can be
presumed that he was shown the photograph of the dead body.
From a perusal of medical evidence it appears that the dead body
was stout, the complexion had changed and bite marks of aquatic
animals were present especially on the face, since it was recovered
from the well. From a perusal of post-mortem report, it transpires
that the stomach contained partially digested vegetables and rice.
However, PW5 and PW6 deposed that the accused and the
deceased at last ordered 2 chicken fry. During investigation, PW8
was not shown the photograph of the deceased, moreover, in the
examination no question was asked about the identity of the other
person who was together with the accused. This goes on to create a
serious doubt on the ‘last seen together’ theory.
11. The prosecution pressed hard on the fact that the accused as
well as the deceased were together on 16.01.2001 and the
deceased was never seen again. The dead body was recovered on
20.01.2001 i.e. after 3 days and 4 nights. PW1 Dhobi deposed that
he goes to the well daily to wash clothes and no question was
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asked as to the presence of a dead body in the well before
20.01.2001. Thus, the possibility of the deceased being thrown into
the well later than 16.01.2001 cannot be ruled out completely,
particularly when the post-mortem revealed that the victim last ate
vegetables and rice. Even if depositions of PW5 and PW6 are relied
upon, there exists a missing link between the visit to the bar and
the deceased being thrown into the well i.e. the deceased having
another meal.
12. The High Court rightly rejected the two recoveries made as it
seems artificial that the accused intending to kill the deceased will
not prepare well. Having two shoe laces at his disposal, why will he
cut a shoe lace into two to tie the hands of the deceased. Similarly,
the piece of Saree which was recovered near the well is doubted as
an accused intentionally committing a crime will not bother to cut
a piece of cloth into two before tying. These evidences were sent to
FSL on 25.2.2001 i.e. after 1 month of the alleged recovery. The
recovery of these material objects seems more of an unnatural
occurrence. The High Court also rightly ruled out extra-judicial
confession as deposed by PW4. PW4 in her cross-examination
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deposed that she narrated the said extra-judicial confession of the
accused to her father PW3. PW3 also came to know that his son
(deceased) had gone with the accused to a wet party. There arises
doubt upon the conduct of PW3 who knew that his son was
missing since 16.01.2001 and he also heard of extra-judicial
confession of the accused, yet he did not report to the police.
13. 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 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 other than the accused being the author of the crime becomes impossible.”
Reiterating the above ratio, this Court recently in Krishnan @
Ramasamy and Others v. State of Tamil Nadu, (2014) 12 SCC
279, held that:
“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
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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.”
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 deceased were last seen together.
14. The prosecution story relies upon the ‘last seen together’
theory, which resulted into the death of Ganesh. This Court has
time and again laid down the ingredients to be made out by the
prosecution to prove the ‘last seen together’ theory. The Court for
the purpose of arriving at a finding as to whether the said offence
has been committed or not, may take into consideration the
circumstantial evidence. However, while doing so, it must be borne
in mind that close proximity between the last seen evidence and
death should be clearly established. Yet, the prosecution has failed
to prove the evidence which establishes the ‘last seen together’
theory beyond reasonable doubt to prove the guilt of the accused.
The prosecution merely proved the motive which could have
compelled the accused, and that the accused went to the bar with
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one other person, but the identity of that other person is not
clearly established at all. The post-mortem report fails to specify
any approximate time of death and in light of the recovery of the
dead body on 20.01.2001, after 4 days, which is not a small gap
since the deceased disappeared on 16.01.2001, it is not
appropriate to convict the accused when his role is not firmly
established.
15. Thus, in the light of the above discussion, we are of the view
that the present appeal is devoid of merits, and we find no grounds
to interfere with the judgment passed by the High Court. The
appeal is, accordingly, dismissed.
….........................................J (Pinaki Chandra Ghose)
…........................................J (R.K. Agrawal)
New Delhi;
September 18, 2015.