Sanjay vs State
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 23.03.2026
Pronounced on: 18.06.2026
+ CRL.A. 991/2002
SANJAY .....Appellant
Through: Ms. Manika Tripathy, Advocate
with appellant in person.
versus
STATE .....Respondent
Through: Mr. Aman Usman, APP for the
State with Mr. Manvendra
Yadav, Advocate.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
J U D G M E N T
RAVINDER DUDEJA, J
1. Appellant Sanjay has challenged his conviction and consequent
Order on Sentence, whereby he has been held guilty for committing
the murder of Bhim Singh.
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2. The investigation took off when on 10 April, 1996 at about
3.40 pm, Retd. Major Surender Singh Rana (PW-5) informed the local
police that the body of a person was lying at Lower GTK Road in
front of Nangli Radio Station. On this information, DD No. 19-A was
recorded at PS Samai Pur Badli. SI Gurnam Singh (PW-18) along
with staff rushed to the spot at Lower GTK Road, opposite Radio
Station, opposite Nangli Poona, where he found a highly decomposed
male body in bushes and ditches in between old well and the road. The
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face and the belly of the deceased had been eaten up by insects. It was
difficult to identify the body from face. The deceased was wearing a
white sandows baniyan, coloured stripes shirt with label of “Prince
Tailor”, dark sky colour pant and light blue socks. The height of the
body was 5.7 inches and was of medium built. One piece of rope was
tied around the neck of the body. The age and identity of the victim
could not be ascertained because of decomposition of the dead body.
The photographs of the dead body were taken. PW-18 sent Rukka
through HC Fateh Singh (PW-9), on the basis of which, FIR No.
271/1996 under Section 302/201 of the Indian Penal Code, 1860
[“ IPC ”] was registered. The pant and the shirt of the deceased were
removed and seized. Proceedings u/s 174 of the Code of Criminal
Procedure, 1973 [“ Cr.P.C. ”] were conducted and the body was sent to
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mortuary. After post-mortem, the dead body was cremated on 12
April, 1996.
3. The shirt on the person of the victim was bearing the label of
“Prince Tailor, Rudra Pur, N. Tal”. HC Rattan Lal Dogra (PW-7) was
sent to Rudrapur. On receipt of information from him, Insp. Mahender
Singh (PW-20) with SI Gurnam Singh (PW-18), HC Fateh Singh
(PW-9), Constable Bal Kishan and Rajbir went to Rudrapur and
investigated the matter. Shankar Singh (PW-3), brother of the
deceased, met them at Transport Nagar. He identified the clothes to be
that of his brother Bhim Singh. During investigation, statement of Raj
Kumar @ Raju (PW-1), 12 year old son of deceased Bhim Singh, was
recorded. He stated that his father Bhim Singh was a truck driver and
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used to take goods from there and return after several days; on 2nd
April, 1996, his father was to go to Delhi after loading rice in truck;
accused Sanjay and Chhira, the two cleaners on his truck, loaded the
rice from mill; when his father Bhim Singh was ready to proceed to
Delhi with the truck at 9.00 pm, he (Raj Kumar) said that he also
wanted to accompany him; Kamlesh, a visitor in his neighbourhood
who had to go at some place near Delhi, also got ready to accompany
Bhim Singh. All five of them, that is, Bhim Singh, helpers Sanjay and
Chhira, he himself and Kamlesh boarded the truck, which reached
Delhi border in the morning, where it was stopped and Kamlesh left;
the truck remained parked there during day, and in the evening, went
to Transport Nagar, Delhi, where they met accused John Massey,
another truck driver, who was the resident of Rudrapur and had come
there with his truck and was well known to Bhim Singh, Sanjay and
Chhira; that Bhim Singh, John Massey and both the helpers took
liquor and all of them took meals in a hotel there; thereafter Bhim
Singh made him to sleep on the cabin seat of the truck and himself
slept over the truck. Raj Kumar further stated that when he and his
father were going to sleep, Sanjay, Chhira and John Massey were
talking to each other; that when he got up in the morning, Sanjay and
Chhira were unloading the rice bags from the truck in a godown and
John Massey was also present there with his truck; when he (Raj
Kumar) enquired from them about his father, they said that he had left
for some urgent work in night and would come later on; after
unloading, Sanjay and Chhira took hire money; Sanjay started driving
truck while he and Chhira sat in the truck; John drove away his truck;
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he again asked Sanjay and Chhira as to where his father was, then
both of them replied that he would meet them on the way; they
reached Rudrapur in the evening and he again asked both of them
about his father and was told by them that he had gone for some
urgent work and would come back after one or two days; that he told
all this to his mother and uncle Shankar Singh, who had been
searching for his father and who went to Delhi also in that connection,
but he could not be traced; from that very day, Sanjay absconded and
Chhira had been telling lies; they (the deceased’s family) had
suspicion that something unpleasant had happened with his father, and
that now, he identified his pant, shirt and socks, shown to them which
were got stitched from ‘Sanjay Tailor’ in Rudra Pur at Holi festival
and was wearing while leaving for Delhi; that it was suspected that the
accused persons had murdered and thrown away his body somewhere.
4. Truck No. URN-9557 was seized vide memo Ex. PW-7/A.
Statement of Sanjay Tailor (PW-2) was recorded. Documents were
collected from Amir Food Pvt. Ltd., Dibdiba Bilas Pur, UP, from
where the rice were loaded in the truck and from Karam Industries
Godown, G.T. Karnal Road, Delhi, where the rice was unloaded. Site
plan Ex. PW18/B was prepared. As per the post mortem report Ex.
PW-6/A, death was due to ligature constriction of neck caused by
ligature material found tied around the neck. Accused Chhira Singh
and John Massey were arrested. They confessed their guilt and pointed
the place where they had thrown the dead body of Bhim Singh after
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strangulating him. On 12 July, 1996, charge-sheet was filed against
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accused Chhira Singh and John Massey. The name of accused Sanjay
was kept in Column No. 2, as he could not be arrested.
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5. Subsequently, Sanjay surrendered in the Court on 09
September, 1996. He also made confession and pointed out the place
where the dead body was thrown as also the place where the rice was
unloaded. Supplementary charge sheet was presented against him on
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26 September, 1996.
6. Charges under Section 302/201/34 IPC were framed against
Chhira Singh, John Massey and appellant Sanjay. They pleaded not
guilty and claimed trial.
7. In order to prove its case, prosecution examined 20 witnesses,
viz . PW-1 Raj Kumar (He is the son of the deceased, who
accompanied him in the truck. He is the witness of ‘last seen’). PW-2
is Sanjay Kumar (He was running a tailoring shop in the name of
“Prince Tailor” and had stitched the pants and shirt recovered from the
body of the deceased). PW-3 is Shankar Singh (He is the brother of
the deceased; He identified the pant, shirt and the pair of socks
removed from the body of the victim to be the same which were worn
by deceased Bhim Singh while he left with the truck). PW-4 is HC Raj
Kumar (Duty Officer). PW-5 is retired Major Surender Singh Rana
(He gave information regarding discovery of the dead body). PW-6 is
Dr. Ashok Jaiswal (He had conducted the post-mortem of the
deceased). PW-7 is ASI Rattan Lal Dogra (He verified from Prince
Tailor that he had stitched the shirt of the deceased. PW-8 is Constable
Vijay Singh (Special Messenger). PW-9 is HC Fateh Singh (witness
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of investigation, who took rukka from the spot for the registration of
the FIR). PW-10 is Rajiv Kumar (Accounts Clerk of Amira Foods
India Pvt. Ltd.). PW-11 is Constable Ram Kishore (He had passed the
information regarding the discovery of the body to Duty Officer). PW-
12 is SI Manohar Lal (He prepared the scaled site plan Ex. PW-12/A).
PW-13 is Raj Kumar (Photographer). PW-14 is ASI Vidya Devi (Duty
Officer). PW-15 is Chanan Dass (owner of the truck). PW-16 is
Constable Rajpal (He took the body to Subzi Mandi Mortuary for the
post-mortem of the deceased). PW-17 is Ashok Kumar (An employee
of Karam Industries). PW-18 is SI Gurnam Singh (first IO). PW-19
Mohd. Meera Sharif (An employee of Amira Foods India Ltd.). PW-
20 is Inspector Mahender Singh (Second IO).
8. Statement of accused Sanjay was recorded under Section 313 of
Cr.P.C. He pleaded innocence. He stated that Bhim Singh was driving
the truck in question and that he had accompanied him in the truck
with his son Raj Kumar and co-accused Chhira Singh to Delhi and
returned with the truck after unloading the rice. He further stated that
Bhim Singh went missing during the night at Transport Nagar. He
claimed that he had merely joined the journey for a ride at the request
of Chhira Singh. He denied any involvement in the crime and asserted
that he was falsely implicated and was present at his maternal uncle’s
house, and later, surrendered before the court. He refused to lead any
evidence in his defence.
9. The learned Trial Court, while returning the finding of guilt
against accused Sanjay and Chhira Singh, observed that not only the
accused came back with the truck telling PW-1 that his father would
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come after 3-4 days, but they even unloaded the rice, collected the hire
money and returned to Rudrapur, did not report to the owner or to the
family of the truck driver, but left after parking the truck unattended in
the transport area. The learned Trial Court was of the view that
although the facts were in their personal knowledge, but they did not
come out with any version regarding his disappearance, what to speak
of plausible explanation, despite being fully aware of the prosecution
against them.
10. However, with regard to co-accused John Massey, the learned
Trial Court observed that there was nothing on record that he had any
meeting of mind or any occasion to have meeting of mind with
accused Sanjay and Chhira to commit the offence and the
circumstances do not warrant drawl of any such inference. The learned
Trial Court found that the only evidence against him of his having
taken dinner and liquor with the deceased and his helpers is not
sufficient to prove charge against him, and thus, acquitted him.
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11. Vide separate Order on Sentence dated 23 August, 2002, the
appellant and co-accused Chhira Singh were sentenced to undergo
imprisonment for life with fine of Rs. 5,000/- each, in default of
payment of fine, to undergo Rigorous Imprisonment for five months
under section 302/34 IPC, and further sentenced them to Rigorous
Imprisonment for five years with a fine of Rs. 5,000/- each, in default,
to undergo Rigorous Imprisonment for five months under Section
201/34 IPC.
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12. Aggrieved thereby, the appellant has preferred the present
appeal. The sentence of the appellant was suspended by this Court on
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21 July, 2003 and subsequently affirmed on 03 December, 2003.
SUBMISSIONS OF THE APPELLANT-SANJAY:
13. The learned counsel for the appellant assails the prosecution
case as being wholly unreliable and riddled with material
contradictions, particularly on the aspect of identification of the
deceased. It is submitted that the prosecution story rests on the
premise that the appellant Sanjay and co-accused Chhira Singh had
accompanied the deceased Bhim Singh and his son in a truck, after
which the deceased went missing and was later found dead. However,
it is emphasized that despite the alleged disappearance, the son of the
deceased (PW-1) failed to raise any alarm or lodge a complaint for 3-4
days. Even in his deposition, PW-1 stated that he was informed by the
accused that his father would return after a few days, and he accepted
this explanation without suspicion. The conduct of PW-1, in neither
informing others promptly nor taking steps to trace his father, is
argued to be unnatural and inconsistent with normal human behaviour.
Such delay and inaction, according to the learned counsel, cast a
serious doubt on the veracity of the prosecution’s narrative.
14. It was further contended that the identification of the deceased
is highly doubtful and unreliable, as it is based solely on the clothes
allegedly recovered from a highly decomposed body. The body, as per
prosecution witnesses, was in such a decomposed state that facial or
physical identification was not possible. PW-1 initially identified the
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clothes Ex. P-1 and Ex. P-2 as belonging to his father, but later, upon
being recalled, denied that those clothes belonged to the deceased.
This material contradiction strikes at the root of the prosecution’s
case. The learned counsel argued that when the primary basis of
identification itself is shaky and inconsistent, the entire chain of
circumstances collapses. It was submitted that the prosecution has
failed to establish beyond reasonable doubt that the body recovered
was indeed that of Bhim Singh.
15. The testimony of PW-2, the tailor, is also heavily relied upon by
the defence to demonstrate inconsistencies in the prosecution case.
Initially, PW-2 stated that the clothes shown to him (Ex. P-1 and Ex.
P-2) were stitched by him for Bhim Singh and bore the label of his
shop, “Prince Tailors.” However, in cross-examination, he
contradicted himself by stating that those clothes did not bear his label
and were not stitched by him. Upon being recalled, he introduced a
new version by identifying a different set of clothes (Ex. P-3 and Ex.
P-4) as those stitched by him for the deceased, allegedly bearing his
shop label. The learned counsel submitted that such shifting stands
and improvements render the testimony of PW-2 wholly unreliable.
Moreover, PW-2 admitted that he maintained no records, issued no
receipts, and had no documentary proof of his business, thereby
further weakening the evidentiary value of his statements.
16. The learned counsel further submitted that even the recovery
evidence is fraught with contradictions and discrepancies. PW-9, a
recovery witness, stated that the clothes recovered from the body
included a shirt, pant, and socks bearing blood stains, and that a label
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of “Prince Tailor” was visible at the time of seizure. However, in
cross-examination, PW-9 admitted that there was no label on the pant
at the time of seizure. This directly contradicts other prosecution
evidence suggesting the presence of such a label. Additionally,
inconsistencies arise regarding the identification of exhibits,
particularly Ex. P-3, which is alternately described as socks and as
clothing items by different witnesses. The learned counsel argued that
such inconsistencies cannot be dismissed as minor discrepancies, as
the entire case hinges upon the identification of the deceased through
these very articles. The possibility of tampering or fabrication cannot
be ruled out, especially when it is admitted that the polythene
containing the seized articles was not sealed by PW-6.
17. Attention was also drawn to the medical and investigative
lapses in the prosecution case. PW-6, the doctor who conducted the
post-mortem, stated that the body was of an unknown male and that
there were no visible ante-mortem injuries except for a rope found
around the neck. Despite this, no forensic or scientific analysis was
conducted on the rope, which could have been crucial in determining
the cause of death. Furthermore, the doctor opined that there were no
other signs of violence on the body, thereby weakening the
prosecution’s theory of homicidal death. Such lapses in investigation,
coupled with the absence of scientific evidence, create serious gaps in
the prosecution’s case.
18. Furthermore, it was contended that the prosecution has failed to
establish any motive or meeting of mind between the accused persons
to commit the alleged offence. The testimony of PW-3 also does not
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implicate the appellant directly, as it only refers to co-accused Chhira
Singh and John Massey, pointing out the place where the body was
dumped, with no mention of the appellant Sanjay. Moreover,
discrepancies exist regarding the stitching of clothes, with PW-3
stating that the deceased was a regular customer of PW-2 for 5-6
years, whereas PW-2 claimed that the deceased had visited only once
or twice. The delay in lodging any complaint, the absence of prompt
police action, and the failure to record statements at crucial stages
further weaken the prosecution’s case. It was also pointed out that the
clothes were allegedly handed over in an unsealed condition, which is
contrary to established procedures and raises the possibility of
tampering. Additionally, the prosecution has failed to establish any
motive whatsoever for the alleged crime, which assumes great
significance in a case based purely on circumstantial evidence. The
absence of motive, coupled with lack of scientific corroboration,
leaves the chain of circumstances incomplete.
19. It was thus submitted that the prosecution has failed to establish
a complete and unbroken chain of circumstances pointing exclusively
towards the guilt of the appellant. The “last seen” theory is weak and
inconclusive, particularly in light of the conduct and testimony of PW-
1. No direct evidence links the appellant to the commission of the
offence, and even the alleged disclosure statements do not inspire
confidence. The role attributed to co-accused persons does not
implicate the appellant with certainty, and there is no evidence
showing his participation in any of the stages of the alleged crime. It
was also submitted that suspicion, however strong, cannot take the
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place of proof, and the appellant has been wrongly convicted on the
basis of conjectures and surmises. In view of the settled principles
governing circumstantial evidence, it is prayed that the conviction and
sentence be set aside, as the prosecution has miserably failed to prove
its case beyond reasonable doubt.
SUBMISSIONS OF THE RESPONDENT- STATE:
20. The learned Additional Public Prosecutor [“ APP ”] for the State
submitted that the testimony of PW-1 cannot be read in isolation and
must be appreciated in conjunction with his statement recorded under
Section 161 Cr. PC., which has been duly incorporated in the charge-
sheet. It was contended that any perceived inconsistency in the
deposition of PW-1 stands clarified when read harmoniously with his
earlier statement. The learned APP further relies upon the testimony of
PW-3 to explain the delay in lodging the complaint, submitting that
PW-3 categorically deposed that he had approached the Rudrapur
Police Station, but no complaint was registered and no action was
taken by the local police. Thus, the delay in initiating formal
proceedings is sought to be justified as being beyond the control of the
family members of the deceased. It was argued that such delay, in the
peculiar facts of the case, ought not to be viewed adversely against the
prosecution.
21. It was further submitted that PW-1, being a child witness of
approximately 10 years of age at the relevant time, believed the
representations made by the accused persons, namely Sanjay and
Chhira, who were employees known to the family. The learned APP
contended that the child witness trusted the assurances given by the
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accused that his father would return after a few days, and therefore his
conduct in not immediately raising alarm cannot be termed unnatural.
Attention is also drawn to the conduct of the appellant, who, upon
initiation of investigation, absconded and failed to disclose his
whereabouts to any authority. Reliance is placed upon the testimony
of PW-20, the Investigating Officer, who stated that efforts were made
to trace the accused persons, including Sanjay and John Massey, but
they could not be located. Such conduct of abscondence, it was
argued, constitutes an important incriminating circumstance against
the appellant.
22. The learned APP further submitted that the recovery and
identification of clothes were carried out solely for the purpose of
establishing the identity of the deceased, and minor discrepancies
regarding articles such as baniyan or underwear are inconsequential,
as such items are generic in nature and not determinative of identity. It
is contended that the emphasis placed by the defence on omissions in
the seizure memo is misplaced and does not affect the core of the
prosecution case. Lastly, it was urged that the appellant remained
untraceable for a prolonged period of 9-10 months and was declared a
proclaimed offender during the course of proceedings. His eventual
surrender, according to the prosecution, was a calculated move aimed
at creating a false narrative and evading the consequences of law. In
view of these circumstances, the learned APP submits that the
prosecution has successfully established a chain of incriminating facts
pointing towards the guilt of the appellant.
ANALYSIS AND REASONING:
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23. The criminal law was set into motion upon recovery of an
unidentified body which was in a decomposed state. The post-mortem
of the body was conducted by PW-6 Dr. Ashok Jaiswal, who found
the rope tied around the neck of the body. Upon examination, he
concluded that the death was due to ligature constriction of the neck,
which was sufficient to cause death in the ordinary course of nature.
The autopsy report therefore proves that the death was homicidal.
However, the identification of the deceased itself remains highly
doubtful and suffers from serious infirmities. The body discovered
was in a highly decomposed condition, as deposed by Dr. Ashok
Jaiswal (PW-6), SI Gurnam Singh (PW-18) and IO Inspector
Mahender Singh (PW-20), making visual identification impossible
and compelling the prosecution to rely solely upon the clothes,
allegedly recovered from the body. However, even this mode of
identification is riddled with contradictions. PW-1 initially identified
the clothes marked as Ex. P-1 and Ex. P-2 as belonging to his father;
however, upon being recalled, he stated that he had heard in court that
a wrong packet of clothes had been opened, and therefore, later
identified Ex. P-3 and Ex. P-4 on that basis, asserting that Ex. P-1 and
Ex. P-2 were not his father’s clothes. As per seizure memo of the
clothes of the deceased Ex. PW-9/A, the shirt was pattidar of green
and other multiple colours. When cross examined, PW-1 stated that
the shirt was of sky colour with stripes. There is also confusion with
regard to the recovery of socks, inasmuch as, PW-1 nowhere deposes
about the same, and rather in cross examination, states that he does not
remember the colour of the socks. With regard to the colour of the
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shirt, the Trial Court recorded the observation that the shirt was
having stripes of green and white colour, while the colour of the pant
was green. If the prosecution case is to be believed, the clothes were
shown to PW-1 and PW-3 at Rudrapur. However, PW-1 deposed that
upon receipt of information regarding the recovery of the body, he and
his uncle came to Delhi, where they were shown the shirt and pant
worn by his father at the time when he went missing from the truck.
PW-18 has further added to the confusion regarding the colour of the
shirt worn by the deceased, inasmuch as, according to him, the colour
of the shirt was ‘ pattidar blue’ and some other colour, probably red.
According to PW-20, the shirt was of green and sky blue colour while
the pant was of dark sky blue colour. PW-7 ASI Rattan Lal Dogra,
who had taken the clothes of the victim to Rudrapur for the purpose of
making enquiry on the basis of label of “Prince Tailor” on the shirt,
was shown the shirt Ex. P-1, having blood stains and pant Ex. P-2,
which admittedly are not the clothes of the deceased, but he identified
them as the same which were taken by him to Prince Tailor, Rudrapur.
There is also contradiction with regard to the colour of socks of the
deceased. PW-3 identified the socks to be belonging to his brother.
According to him, the socks were of white colour. According to PW-
18, the colour of the socks was “Fauji” colour while as per PW-20, the
colour of the socks was “blue” and PW-7 could not tell the colour of
the socks.
24. The above contradictions regarding the incorrect identification
at times by the witnesses and regarding the colour of clothes, which
the witnesses identified to be belonging to the deceased, are of
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significance, particularly when, the body has been identified only by
the wearing clothes. These contradictions create doubt as to whether
the body has been rightly identified by the family members, to be
belonging to Bhim Singh.
25. The conduct of the prosecution witnesses, particularly PW-1
and PW-3, raises serious doubts about the credibility of the
prosecution case and weakens the chain of circumstances sought to be
established. Admittedly, no complaint was lodged immediately after
the alleged disappearance of the deceased, despite the family being
aware that he had not returned, and the explanation that the Rudrapur
police did not register the complaint, does not inspire confidence in
the absence of any further efforts by the family. PW-1, in his
testimony, narrates the sequence of events in a manner that reflects a
passive acceptance of the situation, including accompanying the
accused persons back to Rudrapur on being told that his father would
return after a few days. His conduct in neither raising alarm, no hue
and cry nor informing others immediately, despite noticing his father
missing under suspicious circumstances, appears wholly unnatural and
inconsistent with ordinary human behaviour. Similarly, PW-3 admits
that although he was informed about the disappearance by his nephew
PW-1 and even travelled to Delhi in search of the deceased, he did not
lodge any formal complaint or pursue any effective steps with the
authorities. The overall conduct of these key witnesses, son of the
deceased and brother of the deceased, reflects indifference and
inaction at crucial stages, thereby creating significant gaps in the
prosecution narrative. This delay and lack of prompt action assume
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greater significance in a case based entirely on circumstantial
evidence, where each link must be firmly and cogently established.
26. The only incriminating circumstance pressed by the prosecution
is the “last seen” theory, namely that the deceased was last seen in the
company of the appellant and co-accused persons. However, this
circumstance, by its very nature, is weak and requires strict scrutiny.
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There is substantial time gap between the last seen on 02 April, 1996
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and recovery of the body on 10 April, 1996. The accused can be
convicted on the basis of last seen evidence only when the time gap
between the deceased being last seen with the accused and the death is
so minimal that the possibility of any third party intervention is
completely ruled out. In the present case, such proximity is
conspicuously absent, as there is no clear or definite evidence
establishing the exact time of death. The body was found in a highly
decomposed condition, which itself indicates that considerable time
had elapsed, thereby, diluting the evidentiary value of the “last seen”
circumstance. The prosecution’s own case shows that deceased left for
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Delhi on 02 April, 1996 and was last seen with the accused on the
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night of 03/04 April, 1996. PW-1 returned to Rudrapur on 05 April,
1996 at about 5:00 AM, by which time, the deceased was already
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missing. The post-mortem conducted on 12 April, 1996, coupled
with the medical opinion of PW-6 Dr. Ashok Jaiswal that death had
occurred approximately one week prior, suggests that the death in all
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likelihood took place on 05 April, 1996. This creates a substantial
and unexplained time gap between the point when the deceased was
last seen with the accused and the probable time of death. Such a gap
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leaves open the real possibility of intervention by third party, thereby,
breaking the chain of circumstance, sought to be established by the
prosecution.
27. The doctrine of proximity in both space and time is the
governing test for assessing the probative value of last seen evidence.
In the present case, the deceased went missing from Transport Nagar,
where, the truck was stationed during the night. However, the body
was recovered from Nangli Poona near Radio Station. There is no
evidence as to what is the distance between the place of “last seen”
and the place of recovery of body. There is also no explanation as to
how the body reached the place of recovery or who dumped the same
over there. The mere non-explanation by the appellant of the
whereabouts of the victim only for the reason that he was last seen
alive with him, cannot lead to inference of guilt against the appellant.
The Hon’ble Supreme Court in the case of Kanhaiya Lal Vs. State of
Rajasthan (2014) 4 SCC 715, held that evidence on ‘last seen
together’ is a weak piece of evidence and conviction only on the basis
of ‘last seen together’ without there being any other corroborative
evidence against the accused, is not sufficient to convict the accused
for an offence under Section 302 IPC. The following passage from the
judgment in paras 12 and 15 can be profitably referred:
“12. The circumstance of last seen together
does not by itself and necessarily lead to the
inference that it was the accused who
committed the crime. There must be something
more establishing connectivity between the
accused and the crime. Mere nonexplanation
on the part of the appellant, in our considered
opinion, by itself cannot lead to proof of guilt
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against the appellant.
15. The theory of last seen—the appellant
having gone with the deceased in the manner
noticed hereinbefore, is the singular piece of
circumstantial evidence available against him.
The conviction of the appellant cannot be
maintained merely on suspicion, however
strong it may be, or on his conduct. These
facts assume further importance on account of
absence of proof of motive particularly when it
is proved that there was cordial relationship
between the accused and the deceased for a
long time. The fact situation bears great
similarity to that in Madho Singh v. State of
Rajasthan,(2010) 15 SCC 588”
28. The Hon’ble Supreme Court in the case of Rambraksh @ Jalim
vs. State of Chhattisgarh (2016) 12 SCC 251, reiterated above legal
position in the following words in paras 12 and 13:
“12. 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.
13. In a similar fact situation, this Court
in Krishnan v. State of T.N. (2014) 12
SCC 279 held as follows: (SCC pp. 284-
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85, paras 21-24)
“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 this Court held as follows:
(SCC p. 385, para 31)
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
J&K 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
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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.
24. In Jaswant Gir v. State of Punjab,
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.’”
29. Interestingly, the deceased was allegedly last seen not only with
the appellant and co-accused Chhira Singh, but also with John
Massey, who has since been acquitted by the Trial Court on the same
evidence, thus, not adopting the uniform application of “last seen”
principle. In the absence of any corroborative evidence such as
recovery, motive, or forensic linkage, the “last seen” theory in the
present case remains inconclusive and insufficient to form the sole
basis of conviction, and therefore, cannot be relied upon to sustain the
guilt of the appellant.
30. Prosecution has also sought to rely upon the conduct of the
appellant, particularly his alleged abscondence, as an incriminating
circumstance. However, such reliance is misplaced and insufficient in
law to sustain a conviction. The abscondence, by itself, is not
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conclusive proof of guilt and can at best be treated as an additional
circumstance where the other circumstances proved on record
unerringly points towards the guilt of the accused. There may be
several possible reasons for such abscondence, including fear of false
implication or harassment by the police. In the present case, the record
clearly reflects that the appellant ultimately surrendered himself
th
before the Court on 09 September, 1996, which substantially dilutes
the prosecution’s attempt to portray him as evading the process of law.
If the appellant had a guilty conscience and intended to permanently
evade justice, there would be little reason for him to voluntarily
submit to the jurisdiction of the Court. The prosecution has also failed
to establish any deliberate or prolonged concealment on the part of the
appellant immediately after the alleged incident nor has it shown any
overt act suggesting an attempt to destroy evidence or mislead the
investigation. As per his statement under Section 313 Cr. PC,
appellant was at his maternal place and surrendered himself in the
court. The prosecution has not proved any circumstance which may
show that the abscondence of the appellant was deliberate or
intentional, and hence, the same cannot be treated as a determinative
incriminating circumstance.
31. In the present case, the only evidence against the appellant is of
“last seen” together. There is no motive proved on record. Moreover,
the so-called weapon of offence, that is, rope has not been recovered
at the instance of the appellant.
32. On the basis of the above discussion, we are of the opinion that
the nature of the circumstantial evidence available against the
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appellant, even though may raise some doubt that he may have
committed murder, but the same is not so conclusive that he can be
convicted only on the basis of evidence of “last seen together.”
33. The Hon’ble Supreme Court in the case of Sujit Biswas vs.
State of Assam, (2013) 12 SCC 406, held that suspicion, howsoever
strong, cannot substitute the proof and conviction is not permissible
only on the basis of the suspicion. Para 6 of the said judgment reads as
under:-
“13. Suspicion, however grave it may be,
cannot take the place of proof, and there is a
large difference between something that “may
be” proved, and something that “will be
proved”. In a criminal trial, suspicion no
matter how strong, cannot and must not be
permitted to take place of proof. This is for the
reason that the mental distance between “may
be” and “must be” is quite large and divides
vague conjectures from sure conclusions. In a
criminal case, the court has a duty to ensure
that mere conjectures or suspicion do not take
the place of legal proof. The large distance
between “may be” true and “must be” true,
must be covered by way of clear, cogent and
unimpeachable evidence produced by the
prosecution, before an accused is condemned
as a convict, and the basic and golden rule
must be applied. In such cases, while keeping
in mind the distance between “may be” true
and “must be” true, the court must maintain
the vital distance between mere conjectures
and sure conclusions to be arrived at, on the
touchstone of dispassionate judicial scrutiny,
based upon a complete and comprehensive
appreciation of all features of the case, as well
as the quality and credibility of the evidence
brought on record. The court must ensure, that
miscarriage of justice is avoided, and if the
facts and circumstances of a case so demand,
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then the benefit of doubt must be given to the
accused, keeping in mind that a reasonable
doubt is not an imaginary, trivial or a merely
probable doubt, but a fair doubt that is based
upon reason and common sense. (Vide
Hanumant Govind Nargundkar v. State of
M.P.,(1952) 2 SCC 71, State v. Mahender
Singh Dahiya (2011) 3 SCC 109 and Ramesh
Harijan v. State of U.P. (2012) 5 SCC 777.”
34. The solemn duty of a criminal court is not to convict merely
because an allegation is made, but to convict only when the allegation
is proven beyond reasonable doubt. It is a settled principle that when
two views are possible, one pointing to the guilt of the accused and the
other towards his innocence, the view favourable to the accused must
be adopted. This principle is not a technical rule; it is rooted in the
foundational notion that no person shall be deprived of liberty except
through proof that satisfies the judicial conscience.
CONCLUSION:
35. Ergo, we extend benefit of doubt to the appellant.
Consequently, the appeal is allowed and the appellant stands acquitted
of all the charges levelled against him.
36. It is directed that the bail bond submitted by the appellant, when
his sentence was suspended, shall remain valid for another period of
six months from today in terms of Section 437-A Cr. PC.
37. A copy of this judgment be sent to the concerned Jail
Superintendent and the learned Trial Court for information and
compliance.
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38. The appeal is accordingly allowed and disposed of.
RAVINDER DUDEJA, J.
NAVIN CHAWLA, J.
NA/ RM
JUNE 18, 2026/
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