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TMI Blog2015 (9) TMI 1449X X X X Extracts X X X X X X X X Extracts X X X X ..... tances and evidence adduced by the prosecution. From the facts and evidence, we find no other corroborative piece of evidence corroborating the last seen theory. In case of circumstantial evidence, court has to examine the entire evidence in its entirety and ensure that the only inference that can be drawn from the evidence is the guilt of the accused. In the case at hand, neither the weapon of murder nor the money allegedly looted by the appellants or any other material was recovered from the possession of the appellants. There are many apparent lapses in the investigation and missing links:–(i) Non-recovery of stolen money; (ii) The weapon from which abrasions were caused; (iii) False case lodged by PW-2 alleging that he was being robbed by some other miscreants; (iv) Non-identification of the dead body and (v) Non-explanation as to how the deceased reached Maniya village and injuries on his internal organ (penis). Thus we find many loopholes in the case of the prosecution. For establishing the guilt on the basis of the circumstantial evidence, the circumstances must be firmly established and the chain of circumstances must be completed from the facts. The chain of circumstant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o quarrel with some local persons and consequently Barar police detained him alongwith his truck. Faced with such situation, Raj Kumar (PW-2) instructed his second driver Ram Parkash (PW-1) to hand over the amount of ₹ 20,000/- to Manoj with instructions to give the money to the truck owner. Accordingly, Manoj left for Gwalior with accused persons by the truck No.DL-1GA-5943 on 23.01.2001. 3. Dead body of deceased-Manoj was found on 26.01.2001 under suspicious circumstances in a field near village Maniya. On 26.01.2001 at about 3.00 O clock, one Koke Singh (PW-13) went to collect the fodder and found a dead body lying in the field and the same was informed to Shahjad Khan (PW-4). Based on the written information by Shahjad Khan (PW-4), case was registered in FIR No.16/2001 under Sections 302 and 201 IPC on 26.01.2001 at Thana-Maniya, District Dholpur. Gullu Khan(PW-16)- Investigating Officer seized the dead body and prepared a Panchnama. One bilty (Ex. P17) of Uttar Pradesh, Haryana Roadlines (Pune) and one receipt (Ex. P18) of Madhya Pradesh Government, Shivpuri Naka pertaining to truck No. DL-1GA-5943 were recovered from the pocket of trouser of deceased- Manoj and in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alive in the company of the accused- appellants, it was for the accused to explain as to what happened to the deceased and in the absence of any explanation from the accused and based on the circumstantial evidence courts below rightly convicted the appellants and the impugned judgment warrants no interference. 7. We have considered the rival contentions and perused the impugned judgment and material on record. 8. Case of the prosecution is entirely based on the circumstantial evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his evidence. 9. The principle of circumstantial evidence has been reiterated by this Court in a plethora of cases. In Bodhraj @ Bodha And Ors. vs. State of Jammu Kashmir,(2002) 8 SCC 45, wherein this court quoted number of judgments an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. The same principles were reiterated in Sunil Clifford Daniel vs. State of Punjab, (2012) 11 SCC 205, Sampath Kumar vs. Inspector of Police, Krishnagiri (2012) 4 SCC 124 and Mohd. Arif @ Ashfaq vs. State (NCT of Delhi), (2011) 13 SCC 621 and a number of other decisions. 11. By perusal of the testimonies of PWs 1, 2 and 3, it is seen that PW1-Ram Parkash and PW2-Raj Kumar along with deceased cleaner Manoj got their truck No. MP-07-2627 loaded with pipes at Barar and at the same time another truck No.DL-1GA-5943 of the accused Nizam and Shafique was also loaded with pipes. On the way to Ghaziabad, quarrel took place between the drivers of the truck No. MP 07-2627 and some local persons and Raj Kumar (PW-2) was detained by the police. Raj Kumar (PW-2) instructed Ram Parkash (PW-1) to hand over the amount of ₹ 20,000/- to Manoj with instructions to give this money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001. Undoubtedly, last seen theory is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The last seen theory holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well-settled by this Court that it is not prudent to base the conviction solely on last seen theory . Last seen theory should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. 15. Elaborating the principle of last seen alive in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, this Court held as under:- 23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants. At this juncture, yet another aspect emerging from the evidence needs to be noted. From the statement made by Shahzad Khan (PW-4) the internal organ (penis) of the deceased was tied with rope and blood was oozing out from his nostrils. Maniya village, the place where the body of Manoj was recovered is alleged to be a notable place for prostitution where people from different areas come for enjoyment. 18. In view of the time gap between Manoj left in the truck and the recovery of the body and also the place and circumstances in which the body was recovered, possibility of others intervening cannot be ruled out. In the absence of definite evidence that appellants and deceased were last seen together and when the time gap is long, it would be dangerous to come to the conclusion that the appellants are responsible for the murder of Manoj and are guilty of committing murder of Manoj. Where time gap is long it would be unsafe to base the conviction on the last seen theory ; it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution. From the facts and evidence, we find no other corroborative piece of evidence corroborating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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