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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