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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.