NON­REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1892 OF 2017

SATPAL .........APPELLANT(S)

VERSUS

STATE OF HARYANA .....RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

The appellant assails his conviction under Section 302 read

with Section 201 I.P.C., by the Additional Sessions Judge, Hissar

in case  No.54­SC  (RBT)  of  2008, affirmed  by the  High  Court,

based on the last seen theory.  

2. PW­7, Krishan Kumar lodged an F.I.R. on 11.09.2007 with

regard to his missing nephew, the deceased Kapil Kumar who was

thirteen years old. The deceased had gone to the village the

previous evening at about 6:00 PM to deliver milk to customers.

The witness and his relative PW­9, Richhpal had seen the

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deceased with the appellant at about 9:00 PM on the Khairpur

Road, Sarangpur, going on a bicycle together. The deceased did

not return home at  night.  His  dead body was found  the  next

morning lying concealed in a heap of dry fodder in the fields of

Subhash.   The appellant was stated to have had an altercation

with the deceased a few days ago with regard to payment of milk.

The disclosure by the appellant under Section 27 of the Evidence

Act after his arrest, led to recovery of the atlas bicycle belonging

to PW­7, and the milk can with the name of the witness inscribed

on it.

3. Learned Counsel for the appellant assailing the conviction,

submitted that the dead body was found at a considerable

distance from where he was last seen with the deceased and in

the opposite direction.   It is  highly unlikely  that the appellant

would have  carried the  dead body  for the long distance.  The

recovery is planted, as the second seizure witness Kheda had not

been examined.  The appellant would not have hidden the bicycle

and the milk can near his own house to facilitate his implication.

The story of the milk can and an altercation few days earlier in

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Court, were improvements as no such statement had been made

by PW­7 in the FIR or statement under Section 161 Cr.P.C.  

4. There was a contradiction between the evidence of PW­7 and

PW­9 with regard to  intimation given to the Sarpanch at night

itself.   There was also a contradiction between the statement of

the two witnesses with regard to time when the dead body was

discovered and the police reached the spot.   There was no

evidence with regard to the bicycle as belonging to PW­7.   The

father of the deceased, PW­8, Subhash had come to the village in

the morning itself looking for his son which is suggestive that the

deceased was missing since earlier creating doubts about the last

seen theory.   Alternately, if the deceased was missing since the

previous night, the conduct of  PW­7  in not informing PW­8 at

night itself was highly unnatural.  PW­7 and PW­9 were thus not

reliable witnesses.   To sustain a conviction on basis of

circumstantial evidence, it  was necessary that  all links in the

chain of circumstances  must  be complete leading to the only

hypothesis for guilt of the accused.  If there were any missing link

in the chain of  circumstances and the possibility  of innocence

cannot be ruled out, the benefit of doubt  must be given by 3

acquittal.  Any recovery on basis of confession, under Section 27

of the Evidence Act, cannot form the basis for conviction.  

5. Learned counsel for the State submitted that the deceased

was last seen with the appellant the previous night at about 9.00

PM going on a bicycle and did not return at night.  The dead body

was found next morning in the vicinity of the area they were last

seen together.   The  post­mortem conducted  on  12.09.2007  at

2:15 PM estimates the time elapsed since death as 24­36 hours

and which coincides with when the deceased was last seen with

the appellant.   Motive for the crime existed.   The conduct of the

appellant in absconding after the occurrence is also an

incriminating factor against him.  PW­7 had identified the bicycle

as belonging to him and the milk can had his name inscribed on

it.   

6. We have considered the respective submissions and the

evidence on record.  There is no eye witness to the occurrence but

only circumstances coupled with the fact of the deceased having

been last seen with the appellant.   Criminal jurisprudence and

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the plethora of judicial precedents leave little room for

reconsideration of the basic principles for invocation of the last

seen theory  as a facet of circumstantial evidence.  Succinctly

stated, it  may  be a  weak  kind of evidence by itself to found

conviction upon the same singularly.  But when it is coupled with

other circumstances such as the time when the deceased was last

seen with the accused, and the recovery of the corpse being in

very close proximity  of time, the accused owes an explanation

under Section 106 of the Evidence Act with regard to the

circumstances under which death may have taken place. If the

accused offers no explanation, or furnishes a wrong explanation,

absconds, motive is established, and there is corroborative

evidence available  inter alia  in the form of recovery or otherwise

forming a chain of circumstances leading to the only inference for

guilt of the accused, incompatible with any possible hypothesis of

innocence, conviction can be based on the same.  If there be any

doubt or break in the link of chain of circumstances, the benefit

of doubt must go to the accused.  Each case will therefore have to

be examined on its own facts for invocation of the doctrine.  

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7. Both PW­7 and PW­9 have consistently stated having seen

the deceased going with the appellant on a bicycle at 9.00 PM the

previous evening.   The deceased did not return home at night.

The appellant was also not to be found at home.   The corpse of

the deceased was recovered the next morning hidden in a heap of

fodder in the fields.  The FIR was lodged promptly on 11.09.2007

naming the appellant as a suspect.   An FIR is not to be read as

an encyclopedia requiring every minute detail of the occurrence to

be mentioned therein.  The absence of  any mention  in  it  with

regard to the previous altercation,  or  the presence of the milk

can, cannot affect its veracity so as to doubt the entire case of the

prosecution. The altercation suffices to establish  motive. The

appellant has not led any evidence regarding his not being in the

company of the deceased or that they had subsequently parted

ways. The appellant has not led any evidence, despite his

statement under Section 313 Cr.P.C. that he would do so, why he

did not return home at night or his whereabouts otherwise. PW­8,

father of the deceased, was informed in the morning of

11.09.2007 by PW­7 after  which  he came to the village. The 6

deceased was a thirteen year old hardly in a position to resist the

appellant.  We see no reason why the two witnesses being related

to the deceased would depose falsely and shield the real offender,

especially when the appellant has not given any reason or led any

evidence for his false implication.    

8. The post­mortem was done on 12.09.2007 at about 2:15 PM

by  PW­12,  Dr.  Sunil  Gambhir opining that  death  was  due to

strangulation by manual throttling.  The time elapsed since death

has been estimated as 24 to 36 hours.  The witness has deposed

that death could be estimated to have occurred at about 10.00

PM on 10.09.2007.  The body has been recovered in the vicinity of

where the deceased was last seen with the appellant.   The fact

that it may be in the opposite direction is hardly relevant.

9.  The  recovery  of the  atlas  cycle  on  the  confession of the

appellant, identified by PW­7 as belonging  to him, as also  the

recovery of the milk can on the same basis with the name of PW­7

inscribed on it with nail polish and the fact that the appellant was

absconding after the occurrence till his arrest on 16.09.2007 7

are additional incriminating factors which complete the links in

the chain of circumstances.  The recovery having been proved by

PW­7, the failure to examine the other seizure witness, Kheda, is

of no consequence.  

10. In the entirety of the facts and circumstances of the case, we

find no reason to interfere with the conviction of the appellant.  

11. The appeal is dismissed.

………………………………….J.  (Kurian Joseph)

………………………………….J.  (Mohan M. Shantanagoudar)

.……….………………………..J.    (Navin Sinha)

New Delhi, May 01, 2018

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