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2015 (9) TMI 1450 - SUPREME COURT

2015 (9) TMI 1450 - SUPREME COURT - 2016 (1) SCC 501, 2015 (8) JT 407, 2015 (9) SCALE 809 - Offence punishable under Sections 302 and 201 of the Indian Penal Code, 1860 - applicability of 'last seen together’ theory - Held that:- 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 a .....

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compelled the accused, and that the accused went to the bar with 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. - CRL.A. 1547 OF 2011 - Dated:- 18-9-2015 .....

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by profession, saw a dead body 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 .....

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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. 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 .....

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ka 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 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, th .....

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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 th .....

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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 .....

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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 state .....

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unsel 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 .....

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bout 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 ₹ 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 .....

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aph 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 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 bo .....

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ntity 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 asked as to the presence of a dead body in the well be .....

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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 .....

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ot 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, (201 .....

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