2019 (5) TMI 1946 - HC - Indian Laws

Murder - Seeking leave to appeal - acquittal of charge punishable under Sections 302/120-B/380/411 of the Indian Penal Code - star witness - HELD THAT - Criminal Jurisprudence and a plethora of judicial precedents which place the basic principles not to convict a person on the basis of last seen theory because it is a very weak kind of circumstantial evidence and it is very well affected by a number of factors i.e. the gap between last seen, the time of death and other surrounding factors. The last seen theory is required to be proved by established facts before the same can be actually weighed for the purpose of its relevance for ascertaining the guilt of the accused persons. Last seen together can only be treated as an additional link in the chain of circumstances because the prosecution has to establish an unbroken chain of circumstances, which leads to only one conclusion, which is the guilt and culpability of the accused persons. The Hon ble Apex Court in NIZAM VERSUS STATE OF RAJASTHAN 2015 (9) TMI 1449 - SUPREME COURT , has held that the conviction on the basis of last seen theory should be enforced keeping in mind the circumstances that precede the alleged incident. Whether evidence adduced by the prosecution, particularly the testimony of the star witness (PW-3) is trustworthy, credible and worthy of reliance who had last seen the accused persons with the deceased? - HELD THAT - The conduct of the witness also appears to be unnatural as after seeing the dead body of her father-in-law, she neither informed her husband nor her brother-in-law and instead of informing any public person outside her house, she crossed the gali and informed about the death of her father-in-law to her chacha and chachi , which creates a doubt in the version of the prosecution - The post mortem and FSL report proved that the death was caused due to asphyxia haemorrhage consequent upon cut throat injury by a sharp weapon and the same was sufficient to cause death in ordinary course of nature but as discussed above, the testimony of PW-3 (Pooja) with regard to the last seen theory is very weak and the prosecution has failed to connect the accused persons with the commission of crime. In the present case, on a cumulative reading and appreciation of the entire evidence on record, we are of the considered view that the evidence on record has been held to be unworthy of acceptance as the same is found to be replete with infirmities and are not supported with testimony of any independent witness. There are considerable inconsistencies and discrepancies in the statement of the witnesses, which consequently creates reasonable doubt on the case of prosecution. No motive has been proved on record by the prosecution to substantiate the involvement of the respondents in the present case. It is a settled law that while deciding a leave to appeal petition filed by the State, in case two views are possible, the High Court must not grant leave, if the trial court has taken one of the plausible views, in contrast there to in an appeal filed against acquittal. Upon re-appraisal of evidence and relevant material placed on record, in case, the High Court reaches a conclusion that another view can reasonably be taken, then the view, which favour s the accused, should be adopted unless the High Court arrives at a definite conclusion that the findings recorded by the trial court are perverse, the High Court would not substitute its own views on a totally different perspective. Petition dismissed.

Summary

Issues Involved:
1. Acquittal of the accused under Sections 302/120-B/380/411 of IPC.
2. Reliability of circumstantial evidence and the "last seen theory."
3. Credibility of the star witness (PW-3).
4. Discrepancies in the recovery of evidence.
5. Evaluation of the trial court's judgment by the High Court.

Detailed Analysis:

1. Acquittal of the accused under Sections 302/120-B/380/411 of IPC:
The State sought leave to appeal against the judgment dated 28.09.2018, where the trial court acquitted all respondents of charges under Sections 302 (murder), 120-B (criminal conspiracy), 380 (theft), and 411 (dishonestly receiving stolen property) of the IPC. The prosecution argued that the trial court's judgment was based on conjectures and surmises, failing to appreciate the circumstantial evidence proving the guilt of the accused beyond a reasonable doubt.

2. Reliability of circumstantial evidence and the "last seen theory":
The prosecution's case heavily relied on the "last seen theory," which is a weak form of circumstantial evidence. The High Court reiterated the principles established by the Apex Court in Nizam and Ors. v. State of Rajasthan, emphasizing that conviction based solely on the "last seen theory" is imprudent. The prosecution must establish an unbroken chain of circumstances leading to only one conclusion—the guilt of the accused.

3. Credibility of the star witness (PW-3):
The prosecution's primary evidence was the testimony of PW-3 (Pooja), who claimed to have last seen the accused with the deceased. However, her testimony had inconsistencies. She failed to specify which accused went to buy bread pakora and did not mention the time of their return. Her conduct appeared unnatural, as she informed her neighbors instead of her family about the deceased's condition. The High Court found her testimony unreliable and insufficient to convict the accused.

4. Discrepancies in the recovery of evidence:
The prosecution highlighted the recovery of the deceased's mobile phone from co-accused Mohd. Murtaza. However, the High Court noted discrepancies in the recovery process. The Investigating Officer's testimony about the recovery was inconsistent with the public document produced by Samay Pal Atri, S.S.I., P.S. Kotwali Nagar. This discrepancy cast doubt on the authenticity of the recovery and the arrest memo, suggesting manipulation by the prosecution.

5. Evaluation of the trial court's judgment by the High Court:
The High Court emphasized that while deciding a leave to appeal petition, if two views are possible, the view favoring the accused should be adopted unless the trial court's findings are perverse. The trial court's judgment was found to be holistic, carefully analyzing the evidence of all witnesses. The High Court concluded that the evidence on record was unworthy of acceptance due to considerable inconsistencies and discrepancies, creating reasonable doubt about the prosecution's case. No motive was proven to substantiate the involvement of the respondents.

Conclusion:
The High Court found no illegality or perversity in the trial court's reasoning. The evidence was replete with infirmities and unsupported by independent witnesses. The High Court dismissed the leave petition, upholding the trial court's judgment acquitting the respondents.