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TMI Blog2019 (5) TMI 1946X X X X Extracts X X X X X X X X Extracts X X X X ..... eory 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 evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant i.e. daughter-in-law of deceased namely Pooja was recorded wherein she stated that at about 2.30 pm her father-in-law had come along with two boys and one boy had come after sometime with bread pakora, as these were the same boys who were frequently visiting her father-in-law for the last 3-4 days. She further stated that at about 4.00 pm her daughter asked her to take her to her grandfather s room and on arriving in his room she found that the deceased was lying on the bed with his mouth covered with a chadar . On receiving no response from her father-in-law, she removed the chadar and found that his neck was slitted, subsequent to which, she informed her neighbours and someone from them had called 100 number. (ii) Based on her statement recorded, FIR No. 177/11 under Sections 302/120-B/380/411 of the Indian Penal Code was registered. During the course of investigation, it was discovered that one person namely Sanjay Kashyap had taken a loan of Rs. 20,000/- from the deceased for a period of three month on 20.07.2011. Since the borrower was not in the position to return the money, he conjointly conspired with co-accused Mohd. Murtaza, Gulrej @ Gullu and Mohd Saleem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the material available on record. 10. 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. 11. The Hon ble Apex Court in Nizam and Ors. v. State of Rajasthan reported in (2016) 1 SCC 550, 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. The germane portion of the judgment is extracted below: Undoubtedly, last seen theory is an important ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Pakoda. I heard that one of the boy was getting down from the first floor for bringing Bread Pakoda for my father in law. On 24.09.2011 at about 4 PM, my daughter Ishika asked me to take her to my father in law and I along with my daughter went at the first floor. I noticed that TV kept in the room of my father in law, was on and it was having maximum sound at that time. I knocked the door twice but there was no response from inside the room. I entered inside the room and I saw that my father in law was sleeping on the bed and one bedsheet was there on his body. I asked my father in law as to why the TV is on and that to be in such a loud volume. But there was no response of my father in law. I noticed that one bowl having pieces of guava was in turtled position. There was no sign of respiration. I touched the hand of my father in law and I noticed that there was no response from the vein of his hand. Face of my father in law was covered with the bedsheet and I asked as to why he has put the bedsheet on his face. I removed the bedsheet from his face and I noticed that the neck of my father in law was slitted/cut. I was quite perplexed. I along with my daughter came down and I wen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the doors or from only one door i.e, the door from where the accused persons first met PW-3 (Pooja) at 1:15 pm. 16. 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. 17. 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. 18. Learned APP for the State laid emphasis on the recovery of the mobile phone of the deceased from the co-accused Mohd. Murtaza which was recovered by PW-32 (SI Gulshan Nagpal). PW-32 (SI Gulshan Nagpal) during his cross-examination deposed as under: A mobile p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. For the reasons which we have already discussed above, we regard it unsafe to act upon the testimony of PW-3 (Pooja) alone for convicting the respondents for the offence punishable U/s 302/120-B/380/411 of IPC. 22. 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 find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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