JABIR & ORS. VERSUS THE STATE OF UTTARAKHAND

JABIR & ORS. VERSUS THE STATE OF UTTARAKHAND

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 972 OF 2013

JABIR & ORS. …APPELLANT(S)

VERSUS

THE STATE OF UTTARAKHAND …RESPONDENT(S)

J U D G M E N T

S. RAVINDRA BHAT, J.

1. The appellants were convicted under Sections 302 of the Indian Penal

Code, 1860 (hereinafter “IPC”) and sentenced to life imprisonment as well as 7

years under Section 364, IPC and imprisonment for 5 years under Section 201,

IPC. Their conviction and sentence was upheld by the Uttarakhand High Court.1

2. Haseen, aged about 7 years, was the son of Bisarat, (PW-1), a resident of

village Akbarpur. He went missing on 08.10.1999. On 10.10.1999, at about

1 By judgment and order dated 05.10.2012 in Crl. No. 358/2004

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16:30, the dead body of Haseen was found in the sugarcane field of Yaqub in

Village Narayanpur, situated at a distance from Akbarpur, Haseen’s village.

Information was sent to the Police Station Manglor. Inquest proceedings were

held by ASI Dalchand, PW-6. The post-mortem was conducted on 11.10.1999

by Dr. A.K. Jain (PW-9). According to his statement, death had occurred about

two days before the post-mortem examination.

3. PW-1, Bisarat moved an application under Section 156(3) Code of

Criminal Procedure (hereinafter “Cr. PC”) on 19.11.1999. Based on the order of

the magistrate concerned, the first information report (FIR) was recorded on

21.11.1999. In the FIR, the informant alleged that his son Haseen was missing

since 3 PM on 08.10.1999 and that despite search, he could not be found. He

went to PS Manglor on 10.10.1999 on the day dead Haseen’s body was found.

He also narrated about the post-mortem examination on 11.10.1999. PW-1

stated that he was busy in making inquiries. He was told by Sayeed Ahmad

(PW-3) and Murad Ali (PW-2) that they had seen A-3 Husn Jahan taking

deceased boy Haseen into her house on 08.10.1999 at about 3.30 PM. Suleman

(PW-4) told him that on 09.10.1999 at about 6 AM he had seen Haseen standing

along with A-1 Jabir and A-2 Jakir on the road near Yaqub’s sugarcane filed. He

(PW-1) immediately went to PS Manglor to lodge the report on the morning of

12.10.1999, but his report was not recorded. He then met S.P., Haridwar on the

same day, but police did not interrogate him or his witnesses nor take any action

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against the accused persons. Based on these allegations, the police investigated

the incident, and during the course of those proceedings, arrested the accusedappellants.

4. After investigations were completed, the police, in their final report,

alleged that the appellants were guilty of the offences. Charges were framed

against them, by the court. The prosecution, to establish its allegations, relied on

the testimony of 12 witnesses. The defence did not examine any witness. Based

on the materials placed before it, the trial court convicted the appellants, who

then appealed to the High Court. The impugned judgment affirmed the trial

court’s findings.

Appellants’ contentions

5. It is argued, on behalf of the appellants, that the conviction and sentence

imposed in this case, is unsustainable. It was argued that no reason was given

why the FIR was lodged almost five weeks after the deceased boy went missing

and after his body was found on 10.10.1999. The complainant stated that on

12.10.1999, he was told by the witnesses that on 8.10.1999, the third appellant,

A-3 Husn Jahan, was seen taking the child inside her house, and on 9.10.1999 at

6 AM, the child was seen along with accused Jabir and Jakir. The application

under section 156(3) Cr. P.C. was moved on 19.11.1999, i.e., after more than

one month. In the mean-time no application was sent to any officer. There is no

explanation for a delay of more than a month.

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6. It was urged that there is discrepancy in the testimonies of various

witnesses, particularly that of PW-1 (father of the deceased) and the others,

particularly PW-4 and PW-5, as to whether the suspicion of the accused’s

involvement was, in fact, reported within a couple of days after the boy’s body

was found. Counsel especially highlighted that the police witnesses did not

support the version of PW-1 that he had voiced suspicions contemporaneously.

Further, it was submitted that the testimonies of witnesses were that the

accused’s role was not known to PW-1 and others on 10.10.1999, but this was

not reflected in the inquest report.

7. Learned counsel submitted that the prosecution witnesses are

untrustworthy since they appear to have been added as after thoughts. It was

submitted that the appellants’ consistent case was that they were named much

after the incident, on account of enmity with the deceased father’s family. It was

pointed out that in the testimony of the first IO, (PW-8) that PW-2 did not

mention about the role and involvement of A-3 and that she was with the

deceased on 8th October, 1999. Further, that witness (PW-8) also testified that

the villagers had initially suspected Saleem and Mansoor, and not the present

accused.

8. Learned counsel highlighted that P-4 and PW-5 are wholly unreliable

witnesses. In fact, the police statement of PW-4 was recorded much after the

incident in December, 1999. This witness, as indeed PW-5, were introduced to

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somehow implicate the first two appellants (A-1 and A-2) since there was no

other witness who supported the prosecution with respect to their alleged

involvement or presence. The idea of introducing them was to link them with

the deceased. It was submitted that PW-4’s testimony was unreliable, because

he recorded his police statement after two months, and as per his admission,

though he had seen the deceased in the first two appellants’ company and

informed PW-1 about this as early as on 12.10.1999. Likewise, PW-5 deposed

having informed PW-1 on 12.10.1999 about witnessing the boy in the company

of the first two appellants on (09.10.1999). No explanation was given by the

prosecution why he was examined so late. Furthermore, the deceased’s father,

PW-1, did not mention having been told about the involvement of the first two

appellants by PW-5 in his written complaint.

9. It is argued that the “last seen” theory is, on the face of it, an afterthought and concocted in as much as PW7 Mansab stated before the court that

PW2 Murad Ali, Sayeed Ahmad PW3, and PW4 Suleman, who all were closely

related to the deceased child, were present at the time of inquest proceedings

held on 10.10.1999, yet they for the reasons best known to them kept silent for 2

days and for the first time informed Bisarat PW1, only on 12.10.1999. Yet, that

witness PW-1 did not mention these facts in his written version.

10. It was contended that all prosecution witnesses were of the same family,

as complainant Bisarat PW1 is the nephew of Murad Ali PW2; Sayeed Ahmad

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(PW-3) is son of Sharif, PW-1’s cousin, and PW4 Suleman as well as PW5

Munfaid too belonged to PW-1’s family. It was urged that there was reason for

the witnesses to cook up a false story against the appellants because in the year

1996, Munfaid, father of the appellants had lodged an FIR against Murad Ali

(PW-2), Phurkan and Shamshad under Section 307, 452, 504, 506 IPC and they

were prosecuted. This clearly established their motive to falsely implicate the

appellants.

11. Counsel highlighted that according to Mansab’s (PW-7) deposition (who

was a witness to establish the Inquest Report) Munfaid, Sayeed, and Murad Ali

were also present at the time of inquest. It is unimaginable that had they seen

the deceased in the company of accused persons, they would not disclose the

same even after seeing the dead body of their kith and kin. This incongruity

went to the root of their credibility, falsifying the prosecution version.

12. Learned counsel relied on Hanumant vs. The State of Madhya Pradesh,2

Sharad Birdhi Chand Sarda vs. State of Maharashtra,3

and Tanviben

Pankajkumar Divetia vs. State of Gujarat4

 to contend that in circumstantial

evidence-based cases, each incriminating circumstance must be clearly

established by reliable and clinching evidence and the circumstances proved

must form a chain of events from which the irresistible conclusion of the

accused’s guilt can be safely drawn; no other hypothesis is possible. It was

2 1952 (1) SCR 1091

3 1985 (1) SCR 88

4 1997 (7) SCC 156

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submitted that this court has cautioned that in a case depending upon

circumstantial evidence, there is a danger that conjecture or suspicion may take

the place of legal proof. The Court must satisfy itself that various circumstances

in the chain of events have been established clearly, and such a completed chain

of events must be such as to rule out a reasonable likelihood of the innocence of

the accused. It has also been indicated that when the important link goes, the

chain of circumstances gets snapped, and the other circumstances cannot, in any

manner, establish the guilt of the accused beyond all reasonable doubts. Counsel

also stated that this court has to be watchful and avoid the danger of allowing

the suspicion to take the place of legal proof for sometimes, unconsciously it

may happen to be a short step between moral certainty and legal proof. It has

been indicated by this court that there is a long mental distance between “may

be true” and “must be true” and the same divides conjectures from sure

conclusions. It was contended that in the present case, the prosecution was

unable to prove beyond reasonable doubt, every circumstance, and the courts

below erred in treating suspicion as proof, leading to the appellants’ conviction.

State/Prosecution’s contentions

13. Learned counsel appearing on behalf of the state argued that this court

should not disturb the concurrent findings of the trial court and the High Court.

He first dealt with the issue of delayed lodging of the FIR and relied on the trial

court’s reasoning, as well as the testimony of PW-1. He argued that when the

deceased went missing, there was nothing unnatural on the part of PW-1, his

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father, in not reporting the absence immediately and instead searching for him.

It was only when he was informed that the dead body was found, that he

approached the police; the post mortem corroborated that the boy died due to

shock on account of injuries caused due to violence and injuries caused on his

person. Learned counsel submitted that all the eyewitnesses who deposed to

having seen A-1 to A-3, clearly stated that they had seen the boy in the company

of the said appellants. Therefore, the last seen theory was correctly applied.

Furthermore, PW-1 in fact, sought to complain to the police, but without avail.

Eventually, he approached the magistrate under Section 156 (3) Cr. PC, which

was allowed.

14. It was also submitted that the cumulative effect of the depositions of PW4 and PW-5 was that the deceased boy was seen last, in the company of the first

two accused, early morning near the place where his body was discovered

subsequently. Given that the report of this was made immediately after

discovery of the body, on 10.10.1999, the informant could not be faulted for not

taking prompt action. The inquest, which was held the next day, also concluded

that death occurred under suspicious circumstances, having regard to the nature

of injuries on the deceased’s body.

15. It was submitted that the trial court and the High Court both correctly

inferred that the informant’s complaint was not entertained by the police, and he

could not become a victim of that inaction. Investigations that took place after

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21.11.1999, no doubt resulted in statements of some witnesses, but the

investigation was not conducted satisfactorily. Therefore, it was directed to be

taken over by PW-12, after which it was conducted properly and a charge sheet

accusing all the appellants was filed. Counsel for the state relied on the

testimonies of PWs 2 and 3 to contend that they had deposed convincingly that

the third appellant was last seen holding the deceased boy’s hands on 8.10.1999.

PWs 4 and 5 deposed to having seen the deceased boy the next day, early

morning, in the company of the first two appellants. These facts, conclusively

established the appellants’ guilt.

Analysis and Findings

16. As may be gathered from the previous discussion, that the concurrent

conviction of the appellants rests entirely on the “last seen” theory, upheld by

the courts below. The deceased- it has been held, was seen by PW-2 and PW-3

with the third appellant, Husn Jahan, on the afternoon of 8th October, 1999; she

was holding his hand. The boy went missing; his father, PW-1, and other family

members searched for him. No report was lodged at that time, and the search

continued. The boy’s body was discovered, partly buried, on 10th October, in an

open agricultural field, in another village (Narayanpur). Post mortem was

conducted the next day, i.e., on 11th October, 1999; the inquest proceedings too

were held that day. PW-1 stated that he attempted to lodge an FIR on 12th

October, 1999, against the present appellants, but without success. The FIR was

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eventually lodged, pursuant to an order under Section 156 (3) Cr. PC. upon an

application dated 19.11.1999. Investigations were conducted by PW-8 and, later,

from 2.12.1999, by PW-12. The appellants were arrested and charged for the

offences, and later convicted.

17. The testimonies of PW-2 and PW-3 were relied upon to prove that Husn

Jahan, the third appellant and sister of the first two appellants, was seen in the

company of the deceased on 8th October, 1999 at 3:30 p.m. PW-2 claims to have

informed this to PW-1 on 10-10-1999 at 12:00 p.m., before the deceased’s body

was found (i.e., at 01:00 p.m.). On the other hand, PW-3, who claimed to have

witnessed Husn Jahan holding the deceased’s hand on 8.10.1999, informed PW1 about noticing this on 12.10.1999, (since he had gone to visit his son to

Bijnor, during the intervening period). The other circumstance is that the boy

was seen last, in the company of the first two appellants, by PWs-4 and 5.

18. For the moment, if the delay in recording the FIR (which is 42 days) is

ignored, the salient fact which stares at one’s face is that the conviction is solely

based on the testimonies of these two sets of witnesses. PW-4 Sulaiman deposed

to having seen the deceased with the said appellants, early morning on

09.10.1999. He claims to having informed the boy’s father, PW-1 about this

fact, after discovery of the body, on 12.10.1999. PW-5’s deposition seeks to

corroborate that of PW-4. This witness also claimed to having seen the boy on

the morning of 09.10.1999. However, intriguingly, despite noticing him in the

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company of two accused and despite having heard a cry from the boy, this

witness did not look back. In terms of his admission, PW-5 is a cousin of PW-1.

Therefore, his behavior in not interceding upon seeing the boy in the company

of the accused, early morning, away from his house – given that the boy was

only 7 years, is unnatural. It is also unnatural that since the prosecution- and

PW-1’s allegation is that the accused had a previous enmity with him, PW-5, a

close relative, was neither surprised nor did anything to intervene when he saw

the boy in the company of the first two appellants. Another important aspect is

that the police statement of PW-5 was recorded more than two months after the

start of investigation; even the application under Section 156 (3) Cr. PC does

not mention that he had witnessed the boy with the accused despite the

witness’s statement that he informed PW-1, the boy’s father on 12.10.1999

about what he saw on 9.10.1999.

19. PW-4 Sulaiman deposed that his house was 8-10 paces to the north of

Bisarat’s house, and that he was in his house the whole of the night of 8th

October, 1999. He also deposed to going out in the morning of 09-10-1999 to

answer the call of nature, at around 6 AM when he noticed that the deceased

was with Jakir and Jabir, the first two appellants. In cross examination, he

admitted to not going out of his house on 9th October, 1999. He also deposed to

having not been in the village when the boy’s body was found. Interestingly, in

his cross examination, he stated that:

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“I did not show the place to the IO at which the accused Jabir and Jakir

were standing with Haseen, on the other hand I told to the IO that the

accused were standing in the field of Yaqoob with Haseen. The accused

Jabir and Jakir were standing in the northern side of the field of the field

of Yaqoob.”

This statement renders PW-4’s testimony unreliable, because Yaqoob’s field was

located at Narayanpur. PW-4 was a resident of Akbarpur; if he went out to

answer the call of nature, at 6 AM or so in the morning, and returned home

immediately, there is no explanation how he knew that the accused were

standing at a specific spot, in another village, Narayanpur, with the deceased.

Besides this glaring discrepancy, it is unnatural and improbable, that one as

close a neighbour of PW-1 living 8-10 paces away would not be aware that the

boy went missing on 8th October, 1999. In fact, the improbability of the

witness’s ignorance of the fact (that Haseen was missing) is evident, if one

considers the testimony of PW-1 who deposed:

“Firstly, we searched him in the village, we also got made proclamation

on the same day in the evening.”

20. PW-2 Murad Ali’s father was the brother PW-1 Bisarat. Likewise, Sayed,

PW3 is also related; he is PW-1’s second cousin, and like him, similarly related

to PW-2. In his testimony, PW-2 deposed he had seen the boy with Husn Jahan,

the third accused. He also stated that the dead body was found at about 1 PM

and

“I told the Bisarat on that very day when the dead body of Haseen was

found that perhaps Husn Jehan has kidnapped the child.”

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He further deposed to telling Bisarat “at about 12 in the noon” that he saw Husn

Jehan taking Haseen in her house holding his hand. He again deposed that:

“I told this fact to Bisarat at the place where the dead body was found. I

told this fact to Bisarat 2-4 minutes before the arrival of the police. When

the police came near the dead body of Haseen, then I did not tell the

police regarding the fact that I saw Husn Jehan taking Haseen holding

his hand. I told to the police that "that I had suspicion that perhaps the

child Haseen has been disappeared. I cannot tender any explanation if

this fact is not written in my statement.

If these facts are true, there is no explanation why PW-1 (as well as other

witnesses, such as PW-2, and PW-3) did not mention about the involvement of

Husn Jahan, at least in the inquest proceedings. PW-7 Mansab, deposed that

many family members of PW-1, as well as he, were present during the inquest

proceedings:

“At the time when the inquest was being prepared many persons of the

village were collected there. At that time the complainant of the case

Bisarat, Suleman s/o Bashir Jhoja, Munfait s/o Mohd. Ali, Sayeed s/o

Sharif and Murad Ali s/o Ali Hasan were also present.”

PW-7’s testimony, (about the presence of PW-1 to PW-5 during the inquest) not

only renders suspect the deposition of PW-2, but also fatally weakens the

testimony of PW-5 who claims to have left the village, on 09-10-1999 and

returned only on 12-10-1999. This aspect assumes importance, because PW-7

was not declared hostile, and he is a witness to the inquest proceedings.

21. A basic principle of criminal jurisprudence is that in circumstantial

evidence cases, the prosecution is obliged to prove each circumstance, beyond

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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.5

 These were so stated in Sarad Birdichand

Sarda (supra) where the court, after quoting from Hanumant, observed that:

“153. A close analysis of this decision would show that the following

conditions must be fulfilled before a case against an Accused can be said

to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn

should be fully established.

It may be noted here that this Court indicated that the circumstances

concerned 'must or should' and not 'may be' established. There is not

only a grammatical but a legal distinction between 'may be proved' and

"must be or should be proved" as was held by this Court in Shivaji

Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the

following observations were made: [SCC para 19, p. 807: SCC (Cri.) p.

1047]

Certainly, it is a primary principle that the Accused must be and not

merely may be guilty before a court can convict and the mental distance

between 'may be' and 'must be' is long and divides vague conjectures

from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis

of the guilt of the Accused, that is to say, they should not be explainable

on any other hypothesis except that the Accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be

proved, and

(5) there must be a chain of evidence so complete as not to leave any

reasonable ground for the conclusion consistent with the innocence of

5 Ibid 3

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the Accused and must show that in all human probability the act must

have been done by the Accused.”

154. These five golden principles, if we may say so, constitute the

panchsheel of the proof of a case based on circumstantial evidence.”

These panchsheel precepts, so to say, are now fundamental rules, iterated time

and again, and require adherence not only for their precedential weight, but as

the only safe bases upon which conviction in circumstantial evidence cases can

soundly rest.

22. This court is of the opinion that given the testimonies of two sets of

witnesses (PWs2 &3 and PW-4 &5) who deposed to seeing the accused with

Husn Jahan and the first two accused, on 8th October 1999 and 9th October 1999,

respectively, and also given the serious flaws in their testimonies, with respect

to the knowledge of PW-1, the flaws in their testimonies regarding their

presence at the place and time, deposed to by them, as well as other glaring

inconsistencies, the prosecution cannot be said to have proved its case. If benefit

were to be given to PW-1’s statement, and he were to be believed that the police

did not take any action, till he applied under Section 156 (3) his conduct, in not

stating anything during inquest proceedings, despite being informed about the

facts, by PW-2, PW-3 and PW-4, that about seeing the boy in the company of A3 Husn Jahan, on 08-10-1999, and later, on the early morning of 09-10-1999,

undermines the prosecution story. Likewise, if the prosecution version that there

was a previous enmity or grudge on the part of the accused, which constituted a

motive to kill the child, is correct, the conduct of PW-4 and PW-5 in not taking

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any steps to ensure the safety of the child, when they saw him in the company

of the accused, is unnatural. This is more so, because PW-5 is admittedly related

to PW-1. As discussed previously, the testimony of PW-5 with respect to the

circumstances under which he saw the deceased early morning of 09-10-1999,

renders it untrustworthy and unbelieved.

23. This court is also of the opinion that apart from the above serious

infirmities, there is no evidence, oral or any material object, which connects the

appellant-accused with the crime. It has been repeatedly emphasized by this

court, that the “last seen” doctrine has limited application, where the time lag

between the time the deceased was seen last with the accused, and the time of

murder, is narrow; furthermore, the court should not convict an accused only on

the basis of the “last seen” circumstance. In Jaswant Gir vs. State of Punjab,6

this court explained the soundness of such a rule:

“Without probing further into the correctness of the "last-seen" version

emanating from P.W. 14's evidence, even assuming that the deceased did

accompany the accused in their vehicle, this circumstance by itself does

not lead to the irresistible conclusion that the Appellant and his

companion had killed him and thrown the dead body in the culvert. It

cannot be presumed that the Appellant and his companions were

responsible for the murder, though grave suspicion arises against the

accused. There is considerable time-gap between the deceased boarding

the vehicle of the Appellant and the time when P.W. 11 found the dead

body. In the absence of any other links in the chain of circumstantial

evidence it is not possible to convict the Appellant solely on the basis of

the "last-seen" evidence, even if the version of P.W. 14 in this regard is

believed. In view of this, the evidence of P.W. 9 as regards the alleged

confession made to him by the Appellant assumes importance.

6 2005(12) SCC438

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24. Recently, in Rambraksh vs. State of Chhattisgarh,7

 this court after

reviewing previous decisions, stated as follows:

“10. It is trite law that a conviction cannot be recorded against the

accused merely on the ground that the accused was last seen with the

deceased. In other words, a conviction cannot be based on the only

circumstance of last seen together. Normally, last seen theory comes into

play where the time gap, between the point of time when the accused and

the deceased were seen last alive and when the deceased is found dead,

is so small that possibility of any person other than the accused being the

perpetrator of the crime becomes impossible. To record a conviction, the

last seen together itself would not be sufficient and the prosecution has to

complete the chain of circumstances to bring home the guilt of the

accused.

11. In a similar fact situation this Court in the case of Krishnan v. State

of Tamil (2014) 12 SCC 279, held as follows:

21. The conviction cannot be based only on circumstance of last seen

together with the deceased. In Arjun Marik v. State of Bihar (1994) Supp

(2) SCC 372)

“31. Thus the evidence that the Appellant had gone to Sitaram in the

evening of 19-7-1985 and had stayed in the night at the house of

deceased Sitaram is very shaky and inconclusive. Even if it is accepted

that they were there it would at best amount to be the evidence of the

Appellants having been seen last together with the deceased. But it is

settled law that the only circumstance of last seen will not complete the

chain of circumstances to record the finding that it is consistent only with

the hypothesis of the guilt of the accused and, therefore, no conviction on

that basis alone can be founded.”

22. This Court in Bodhraj v. State of (2002) 8 SCC 45) held that:

“31. The last seen theory comes into play where the time 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.”

It will be hazardous to come to a conclusion of guilt in cases where there

is no other positive evidence to conclude that the accused and the

deceased were last seen together.

23. There is unexplained delay of six days in lodging the FIR. As per

prosecution story the deceased Manikandan was last seen on 4-4-2004 at

Vadakkumelur Village during Panguni Uthiram Festival at Mariyamman

Temple. The body of the deceased was taken from the borewell by the fire

service personnel after more than seven days. There is no other positive

material on record to show that the deceased was last seen together with

the accused and in the intervening period of seven days there was

nobody in contact with the deceased.

7 2016 (12) SCC 251

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24. In Jaswant Gir v. State of Punjab (2005) 12 SCC 438), this Court

held that in the absence of any other links in the chain of circumstantial

evidence, the Appellant cannot be convicted solely on the basis of "last

seen together" even if version of the prosecution witness in this regard is

believed.”

Again, in Nizam & Ors. v State of Rajasthan,8

it was held as follows:

“Courts below convicted the Appellants on the evidence of PWs 1 and 2

that deceased was last seen alive with the Appellants on 23.01.2001.

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.”

25. In the present case, save the “last seen” theory, there is no other

circumstance or evidence. Importantly, the time gap between when the deceased

was seen in the company of the accused on 09-10-1999 and the probable time of

his death, based on the post mortem report, which was conducted two days later,

but was silent about the probable time of death, though it stated that death

occurred approximately two days before the post mortem, is not narrow. Given

this fact, and the serious inconsistencies in the depositions of the witnesses, as

well as the fact that the FIR was lodged almost 6 weeks after the incident, the

sole reliance on the “last seen” circumstance (even if it were to be assumed to

have been proved) to convict the accused-appellants is not justified.

8 2016 (1) SCC 550

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26. For the above reasons, the conviction and sentence of the appellantaccused cannot be sustained. The impugned judgment is hereby set aside; the

appellants shall be released forthwith unless required in any other case. The

appeal is allowed, but without order on costs.

………………..............................................J.

 [S. RAVINDRA BHAT]

…………………...........................................J.

 [PAMIDIGHANTAM SRI NARASIMHA]

New Delhi,

January 17, 2023.

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ITEM NO.1501 COURT NO.14 SECTION II-B

(For Judgment)

 S U P R E M E C O U R T O F I N D I A

 RECORD OF PROCEEDINGS

Criminal Appeal No. 972/2013

JABIR & ORS. Appellant(s)

 VERSUS

THE STATE OF UTTARAKHAND Respondent(s)

([HEARD BY : HON. S. RAVINDRA BHAT AND HON. PAMIDIGHANTAM SRI

NARASIMHA, JJ.]

(IA No. 6910/2019 - EXEMPTION FROM FILING O.T.

 IA No. 65512/2022 - EXEMPTION FROM FILING O.T.

 IA No. 65511/2022 - GRANT OF BAIL

 IA No. 6905/2019 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/ FACTS/

ANNEXURES)

Date : 17-01-2023 This matter was called on for pronouncement of

 Judgment today.

For Appellant(s) Mr. Vikrant Singh Bais, AOR

 Mr. Yogesh Tiwari, Adv.

Mr. Dushyant Singh Chauhan, Adv.

Ms. Neema, Adv.

For Respondent(s) Mr. Sudarshan Singh Rawat, AOR

 Mr. Sudarshan Singh Rawat, Adv.

Mr. Vikas Negi, Adv.

Mr. Sunny Sachin Rawat, Adv.

 UPON hearing the counsel the Court made the following

 O R D E R

Hon’ble Mr. Justice S. Ravindra Bhat pronounced the

reportable judgment of the Bench comprising His Lordship and

Hon’ble Mr. Justice Padmidighantam Sri Narasimha.

The Court inter alia observed as under:

“26. For the above reasons, the conviction

and sentence of the appellant-accused cannot be

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sustained. The impugned judgment is hereby set

aside; the appellants shall be released

forthwith unless required in any other case. The

appeal is allowed, but without order on costs.”

The appeal is allowed in terms of signed reportable

judgment.

Pending applications, if any, stand disposed of.

(NEETA SAPRA) (MATHEW ABRAHAM)

COURT MASTER (SH) COURT MASTER (NSH)

(Signed reportable judgment is placed on the file)