SUPREME COURT HOLDS THAT ‘LAST SEEN WITH DECEASED’ CANNOT BE THE SOLE GROUND FOR CONVICTION

Recently, a two Judge Bench of the Supreme Court comprising of Justice S. Ravindra Bhat and Justice Pamidighantam Sri Narasimha passed a Judgment dated 17-01-2023 in the matter of Jabir and Others vs The State of Uttarakhand Criminal Appeal No 972 of 2013 and held that the accused persons cannot be convicted on the sole basis of their ‘last seen with the deceased’ basis, when there are no other circumstantial evidences proved against the accused.

Facts

(i) In this case, a 7-year-old minor boy named Hasan (Deceased) who was a resident of Akbarpur Village, Uttarakhand, went missing on 08-10-1999. Later, on 10-10-1999, his dead body was recovered from a sugarcane field belonging to one, Yaqub in Narayanpur Village.

(ii) Thereafter, Inquest Proceedings were initiated by ASI Dalchand (Prosecution Witness i.e. PW-9) to determine the cause of death occurring under suspicious circumstances under Section 174 of the Code of Criminal Procedure 1973 (CrPC) (Police to enquire and report on suicide, etc).

(iii) The Post-Mortem was conducted on 11-10-1999 and Dr. A.K. Jain (PW-9) stated that (i) the minor boy’s death occurred about two days before the Post-Mortem Examination and (ii) the cause of death was shock and haemorrhage as a result of ante mortem injuries.

(iv) The Deceased’s father, Bisarat (PW-1) had received information from (i) one, Sayeed Ahmad (PW-3) and one, Murad Ali (PW-2) that they had seen one, Husn Jahan (Accused-3) taking the Deceased boy into her house between 3pm – 4pm on 08-10-1999, i.e. the day when he went missing; (ii) one, Suleman (PW-4) also informed PW-1 that he had seen the Deceased standing with Jabir (Accused-1) and Jakir (Accused-2) on the road near Yaqub’s sugarcane field in the early hours of 09-10-1999.

(v) Based on the said information, PW-1 immediately went to the nearest Police Station at Manglore to lodge the report on 12-10-1999, but the same was not recorded by the Police. The PW-1 was a poor man and he was also getting threats of dire consequences.

(vi) Hence, PW-1 filed an Application under Section 156 (3) CrPC (Police officer’s power to investigate cognizable case) on 19-11-1999 before Ld. Magistrate, at Roorkee, District Haridwar, upon whose directions, a First Information Report (FIR) dated 21-11-1999 was registered. Upon investigation of the incident, the Police arrested the Accused 1 to 3.

Trial Court Findings

1. The Police filed a Chargesheet before the Trial Court, which framed charges against the Accused 1 to 3 under Sections 201 of the Indian Penal Code 1860 (IPC) (Causing disappearance of evidence of offence, or giving false information, to screen offender), 302 IPC (Punishment for murder) and 364 IPC (Kidnapping or abducting in order to murder).
2. The Prosecution had examined several witnesses but the Defense did not adduce any evidence. The Defense also claimed that the Prosecution Witnesses were false.
3. Thus, after taking into consideration all the evidence on record, the Ld. Trial Court convicted the Accused 1 to 3 under the aforesaid charges and sentenced them to life imprisonment as well as for 7 years under Section 364 IPC and imprisonment for 5 years under Section 201 IPC.

High Court Observations

1) Aggrieved by the Trial Court Order, the Accused 1-3 filed Criminal Appeal No. 358 of 2004 before the High Court of Uttarakhand, at Nainital.

2) The High Court observed that as per the Post-Mortem Examination of PW-9 conducted on 11-10-1999 at 11.30 am, (i) it was clear that the Deceased boy was murdered; (ii) his death occurred about two days before the Post-Mortem Examination, which coincided with the time and date of death of the Deceased as per PW-1’s testimony.

3) Further, despite absence of proof of any motive, the chain of circumstances lead to the conclusion that the Accused 1 to 3 kidnapped the Deceased for murder. Hence, as the Prosecution proved its case beyond reasonable doubt, the High Court upheld the conviction and sentence awarded by the Trial Court Order, vide Judgment dated 05-10-2012.

Supreme Court Observations

Aggrieved by the High Court Judgment dated 05-10-2012, the Accused 1-3 filed Criminal Appeal No 972 of 2013 before the Supreme Court. The Apex Court passed a Judgment dated 17-01-2023 and made the following observations:

(1) That there were glaring discrepancies in the Prosecution Witnesses’ testimonies and that the Trial Court and the High Court convicted the Accused 1 to 3 simply on the basis of their ‘last seen with the Deceased’ theory:

i) That the PW 2 and 3 deposed and claimed to have seen the Accused 3, Husn Jahan holding the hand of the Deceased and taking him inside her house on 08-10-1999. The said information was given to the Deceased’s father, PW-1 by PW 2 on 10-10-1999 and by PW 3 on 12-10-1999, as PW 3 had gone to visit his son in Bijnor in the intervening period. But as per PW-7, Mansab, who was present during the inquest proceedings, claimed that PW 2 and 3 were present during such inquest conducted in the said intervening period. Hence, PW-2 and 3’s testimony was held weak for the Prosecution’s case.

ii) Further, PW-4 deposed and claimed to have gone out of his house to answer the nature’s call on 09-10-1999 early morning, when he saw the Deceased standing with the Accused 1 and 2. The said information was given to the Deceased’s father, PW-1 by PW-4 on 12-10-1999, after the dead body was found on 10-10-1999. However, during cross-examination, PW-4 admitted to have not gone out of his home on 09-10-1999 and that he was not in the Village when the dead body was found on 10-10-1999. In fact, he stated that he only saw the Accused 1 and 2 with their sister, Accused 3 in the sugarcane field on 09-10-1999. Hence, PW-4’s contradictory statements were held unreliable.

(iii) Further, as per PW-5, Munfait, father of the Accused 1 – 3 and a cousin of the Deceased’s father, PW-1, claimed to have seen the Deceased on 09-10-1999 early morning. The said information was given to the Deceased’s father, PW-1 by PW-5 on 12-10-1999.

(iv) It was rather startling that although PW-5 knew about the enmity between PW-1 and PW-5 family, PW-5 did not intercede upon seeing his sons, Accused 1 and 2 with the Deceased on 09-10-1999, which was highly unnatural.

(v) Furthermore, the Section 156 (3) CrPC Application filed by the Deceased’s father, PW-1 before the Ld. Magistrate seeking registration of FIR, did not make any mention about the information given by the Accused’s father, PW-5 to the Deceased’s father, PW-1 about what PW-5 saw on 09-10-1999. Hence, PW-5’s statement was also held unreliable.

(vi) Further, most of the Prosecution Witnesses who had claimed to have seen the Accused with the Deceased, were all related to the Deceased’ father, PW-1.

(2) That in circumstantial evidence cases, all the circumstances and evidences taken cumulatively, should form such a link / chain so as to prove the guilt of the accused beyond reasonable doubt. The chain of evidence must be so complete that there is no reasonable ground left to believe that the accused may be innocent. The facts so established should be consistent only with the hypothesis of the guilt of the Accused. In this regard, the Bench observed as follows:

A basic principle of criminal jurisprudence is that in circumstantial evidence cases, the prosecution is obliged to prove each circumstance, beyond reasonable doubt, as well the as the links between all circumstances; such circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else; further, the facts so proved should unerringly point towards the guilt of the accused. The circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused, and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

Thus, based on the aforesaid observations and the glaring deficiencies in the Prosecution Witnesses’ testimonies, the Supreme Court held that the Prosecution had not proved the case beyond reasonable doubt. The Prosecution in fact based their case solely on the ‘last seen’ theory i.e. the Accused were last seen with the Deceased, therefore, they were charged with various offences under IPC. Thus, as there was no evidence to connect the Accused 1 to 3 with the death of the Deceased, the Apex Court held that the conviction cannot be based on the only circumstance of ‘last seen together’. Hence, the Supreme Court set aside the Trial Court Order and the High Court Judgment dated 05-10-2012 and held that the conviction and sentence of the Accused 1 – 3 were unsustainable. As a result, the Appeal filed by the Accused 1- 3 was allowed and they were released.

Harini Daliparthy

Senior Associate

The Indian Lawyer