IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2118 of 2005 with CRIMINAL APPEAL No. 465 of 2009 For Approval and Signature:
HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE N.V. ANJARIA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy NO of the judgment ?
Whether this case involves a substantial question NO 4 of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? NO ========================================================= VINODBHAI PUNABHAI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) =========================================================
Appearance :
MS KRISHNA U MISHRA for Appellant(s) : 1, MR RC KODEKAR, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE N.V. ANJARIA Date :11/05/2012
COMMON ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) These two appeals challenged the judgment and order dated 6th August 2005 of learned Additional Sessions Judge, Fast Track Court No.12, Morbi, in Sessions Case No.68 of 2004, whereby three appellants-original accused came to be convicted for the offences punishable under section 302 and section 394 read with section 34 of Indian Penal Code, 1860. The accused were sentenced to life imprisonment for the offence punishable under section 302, IPC, and were sentenced to five years imprisonment for the offence under section 394, IPC. Both the sentences were ordered to run concurrently, allowing the benefit of set-off in respect of the period spent in jail.
2. Criminal Appeal No.2118 of 2005 was preferred by the original accused No.1 challenging his conviction and sentence. Criminal Appeal No.465 of 2009 was by original accused No.2 and 3 respectively. As both the appeals arise from a common judgment, they are being heard and disposed of together.
3. We heard Ms. Krishna Mishra, learned advocate for the appellants in both the appeals, and learned Additional Public Prosecutor Mr. R.C. Kodekar, who appeared for the State in the appeals.
3.1 Learned advocate for the appellants submitted that the trial court was not justified in holding the accused guilty. According to her, the incident was not seen by anybody, and there was no evidence worth to conclude that the appellants were involved in killing Prabhaben. It was submitted that the appellants were the employees of PW-1, and were staying at the field since few days, who had no reason to commit crime of murder. It was submitted that there was no cohesive evidence, which could link the circumstances on the basis of which the appellants could be roped in by the prosecution. The learned advocate took us through evidence on record endeavouring to support her contentions.
3.2 On the other hand, learned Additional Public Prosecutor submitted that the evidence on record showed that there were well-knit circumstances, which were proved to hold the accused guilty of the offences. It was submitted that on a combined reading of the testimonies of Bharatsinh (PW- 2), Sahdevsinh (PW-3) and Meghrajsinh (PW-20), who was the investigating officer, it can be established that the appellants-accused had an intention, and they were motivated to commit murder. He submitted that eventhough Bhupatbhai (PW-1) and Arjunsinh (PW-4) were declared hostile witnesses, their evidence was partly reliable on certain relevant facts, as the same was corroborated by other evidence on record. It was submitted that considering the evidence on record it was a case where the appellants were righly convicted on the basis of circumstantial evidence, and that the evidence indicated no other possibility except the guilt of the accused persons. He submitted that accused and the appellants were seen together shortly before the dead body was located, which was an important circumstance.
4. One Prabhaben was brutally murdered on 04.08.2004 during the lonely hours of noon. The deceased was the daughter of Bhupatbhai Tejabhai Dabhi (PW-1) and Kanchanben (PW-19). Her dead body was located in the agricultural field, village Jambudiya. According to the prosecution case, the parents of the deceased (PW-1 and PW-19) found her daughter missing from the house, and upon search, they traced dead body with the help of other village persons. She was killed apparently by throttling and the ornaments worn by her were looted. Thereafter a complaint (Exh.7) was registered by PW-1 against the three accused persons, who were engaged as labourers to work in the field. Accused No.1 was Vinodbhai and accused No.2 and 3 namely Kamlaben and Shardaben were stated to be the wives of accused No.1.
4.1 In his complaint, PW-1 stated that he and his family members along with daughter Prabhaben had been residing at village Jambudiya. Prabhaben was married but staying with them. PW-1 was doing agricultural work in the field which belonged to one Haribhai Zala (PW-5), and was getting 1/3rd share in the yield. On the day of incident, while going to Wankaner with his wife Kanchanben (PW-19) to see the doctor as PW-19 had fever, Prabhaben had accompanied them on way upto the agricultural field. Prabhaben was asked to tie the bullocks and then go back to the home. At that time, the accused persons were present in their small room at the field, where they were staying.
4.2 It was further stated in the complaint that when PW-1 and PW-19 came back from Wankaner at around 2.45 p.m., they did not find their daughter in the house and, therefore, made inquiries with the village residents. On knowing that she was seen at the field in the noon, they along with one Dinesh and Hemant Koli went to the field. Reaching there, they found the dead body of their daughter in the corner of Gumansinh's field adjoining to PW-1's field. The ornaments worth more than Rs.18,000/- were also looted from the body of the deceased. The complainant informed Bharatsinh (PW-2). According to the complainant, the murder was committed by throttling the neck, and that there were marks on the neck indicating the throttling.
4.3. The offence under section 302, 394 and 397 read with section 34, IPC was registered at Crime Register No.0078 of 2004 on 04.08.2004 at the Wankaner Taluka Police Station. The chargesheet (Exh.1) was filed before the court of Judicial Magistrate (First Class) who committed the case to the Sessions Court as the offences were exclusively triable by Court of Sessions. Sessions Case No.68 of 2004 was registered and the three accused were tried. In course of the trial, the prosecution examined 20 witnesses and led documentary evidence. At the end of the trial, learned Sessions Judge recorded statements of the accused persons under section 313 of Code of Criminal Procedure, 1973.
5. The prosecution case rested entirely on circumstantial evidence.
There was no eye witness to the incident. The witnesses examined included Kanchanben (PW-19), mother of the deceased and Bhupatbhai (PW-1), the father, who had lodged the complaint after the dead body was found. In their evidence, PW-1 and PW-19 stated that all the three accused had been staying since last 20 to 25 days in a small room at the field. They were the labourers sent by Haribhai (PW-5) through one Shivdhanbhai (PW-7) to work at the field. Both PW-1 and PW-19 were to go to Wankaner to consult the doctor as PW-19 was suffering from fever, therefore, they had left the house with their deceased daughter at around 9 in the morning. It was raining. On the way, they stopped at their agricultural field. There they asked the deceased to tie up the bullocks and then return back to home. As they returned from Wankaner at around 2.45 p.m., finding their daughter not to be in the house, they inquired in the village and then reached the field along with one Dinesh Koli (PW-12) and one Vasant Koli.
5.1 The dead body was found lying in the corner near the neem tree in the heap of crushed groundnut waste in the field of one Gumansinh Zala, which had common boundary with their field. Bharatsinh (PW-2) was first to be informed about the crime. The ornaments being the ear-rings made of gold, and the bracelets as well as the anklets of silver, which Prabhaben had worn, were missing from the body and were robbed off. The ears of the deceased were half retrenched. PW-19 stated that those ornaments were given to her daughter from her matrimonial side.
5.2 Even as PW-1 was declared hostile by the prosecution in the midst of his examination, on a careful reading of his evidence (Exh.7), it was be seen that most of the parts in his testimony were corroborated by other evidence on record. The relevant facts that the accused worked and stayed at the field, their presence in the morning, robbing of ornaments, the condition of dead body and the place where it was found, were those which stood corroborated by the other evidence. Therefore, on properly sifting his evidence, reliance could be placed on his evidence in respect of such facts which were corroborated. It is settled principle that the evidence of a hostile witness is not to be discarded entirely, but such of the facts stated by him corroborated by other acceptable evidence can be relied on.
5.3 Dinesh Zarvariya (PW-12, Exh.33) who accompanied PW-1 and PW-19 in search of Prabhaben, deposed on same lines. The evidence of Haribhai Zala (PW-5, Exh.14), the owner of the field, and that of Shivdhanbhai (PW-7, Exh. 22) showed that the accused persons were brought at the field by PW-7 on the request of PW-5 as there was need for labour work for reaping the crops etc. PW-7, who was friend of PW-5, confirmed that he had brought the said three persons to leave them at the field. PW-5 stated that he came to know about the incident in the afternoon through a telephonic call.
5.4 The other relevant witness was Bharatsinh Zala (PW-2, Exh.8) to whom PW-1 had first informed about the crime. He in turn informed one Arjunsinh (PW-4) and thereafter other village people knew. All gathered at the field soon after PW-1, PW-19 and PW-12 gone there and found the dead body. PW-2 deposed that he had seen the body of Prabhaben which was sighted in the corner of the field of one Gumansinh Jilubha. Her ears were half chopped, and the ornaments were looted. He stated that since it was raining on that day, he had not gone anywhere from his house. He stated that he knew the accused persons, because they used to make purchases from his shop. He also stated that on the previous day they had come and demanded money stating that he had stomach pain.
5.5 The evidence of Sahdevsinh Zala (PW-3), who was the Sarpanch of the village, assumed importance. He had knowledge that the accused persons were engaged as labourers at the field cultivated by PW-1 and were staying thereat in the small room. PW-3 had also gone to Wankaner on the day of incident in the morning and returned around after 1.00 p.m. He deposed that at that time, he saw deceased Prabhaben and all the three accused together in the agricultural field. He further stated that deceased was guiding a bullock and three accused were standing near the room. It was deposed that the agricultural field of PW-1 was situated on the way to Wankaner from village Jambudiya and vice-a-versa. The distance to the village from Wankaner highway was about 1 to 1 ½ K.m. and on the way agricultural fields were situated. It was stated by him that there was no person anywhere around in the field except the accused and the deceased whom he saw in the field of PW-1. PW-3 was amongst the persons who reached the field on knowing about the death of Prabhaben. His evidence added to the consistency in the details revealed from other evidence regarding the state of the dead body and the place where it was sighted.
5.6 Bharatsinh and Sahdevsinh (PW-2 and PW-3 respectively) acted also as Panchas of Inquest Panchnama (Exh.9). Exh. 9 mentioned that the dead body was found in the Southern corner of the field lying about 8 Feet away towards West from neem tree standing in that corner. The eyes of the deceased were closed and her mouth was half-open. The upper teeth were visible. The body was stained with mud. The ears were partly severed and the blood was coming out. The neck had injury marks of scratches and below the chin one inch long reddish clot was visible. There were no other external injuries. The deceased had on her body green coloured choli and pink coloured blouse. The Panchnama further recorded that a pincer with green coloured handle was found 1½ feet away from the dead body. On the basis of condition of the body. it was mentioned in Exh.9 that prima facie the death was due to forceful throttling of the neck. The Inquest Panchnama was proved by testimonies of PW-2 and PW-3.
5.7 The Panchnama of place (Exh.24) was recorded. It was stated that PW-1 showed the place of crime where body was lying, which was seen that it was in the agricultural field belonging to one Ghumansinh Jilubha Jhala of Jambudiya village. The cotton crop was grown there. In the south-west boundary of that field, there was a neem tree. On the west of that tree, an accumulation of groundnut waste was lying. A pit was found dug nearby. Near the pit a pincer was recovered. The dead body was found to be lying in the accumulation of groundnut waste. From the place where the head of the body was lying a sample of the soil/groundnut waste was taken. It was mentioned that to the west of the place of incident, there was an adjoining field of Harisinh Bhavansinh Jhala (PW-5). On the north-east corner at a distance of about 34' of that field (which was cultivated by PW-1) a pucca room with galvanised roof thereon was situated and in that room there were some household material. Near that room a choli and white coloured slipper were found and recovered. PW-19 stated that the saree and the slipper were found to be of her daughter.
5.8 PW-1, PW-2, PW-3 and PW-19 identified all the three accused persons in the court. PW-19 identified the muddamal ornaments. They were the same which were described by PW-1 in his evidence. The evidence of PW-1, PW-19, PW-2 and PW-3 as well as the Panchnamas at Exh.9 and Exh.24 were consistent in mentioning the place where the dead body of Prabhaben was located.
5.9 The robbed ornaments were sold by the accused persons at the jewellery shops at village Dhansura and at Santrampur. Pradipkumar Soni (PW-17) and Vijaykumar Gadiya (PW-18), were the jewellers at whose place the accused had gone to sell the ornaments. They both were examined. PW-17 stated (Exh.41) that he had his shop in the name of Gopi Jewellers at Jawahar Bazar in Dhansura village and one male and two female persons had come to sell the bracelets and anklets made of silver. They stated they wanted to dispose of the ornaments as they were in need of money for kidney stone operation. Similarly, PW-18 stated (Exh.42) that three persons including a male and females had come on 05.08.2004 around 12.30 in the noon to sell the ear ornaments of gold. Ultimately the female person exchanged them for Sankla (a kind of ornament) of silver worth Rs.1,500/- and took Rs.9,900/- in cash being the remaining amount of the total value of the gold ornaments.
5.10 The recovery of muddamal articles from shops of PW-17 and PW-18 were witnessed by Nareshbhai (PW-14, Exh.36) who acted as one of the two Panchas of the Panchnama (Exh.37) recorded at the time of muddamal recovery from the shop of PW-17. Similarly, Panchnama (Exh.39) was recorded in respect of recovery of muddamal ornaments from the place of PW-18 and for that one of the two Panchas Virendu Pateliya (PW-15, Exh.38) was examined. The muddamal ornaments were recovered from them and they were proved to be the same which were missing from the dead body. This witness identified all the three accused in the court.
5.11 Meghrajsinh Dadubha Jadeja (PW-20, Exh.44), a PSI at Wankaner police station, who was the investigating officer, deposed that on receipt of information about the offence, he went to the place of incident where the dead body was lying. It was in the corner of the field of Gumansinh Darbar, adjoining to Harisinh’s field. After doing Inquest Panchnama, he recorded the compliant (Exh.7) of PW-1 Bhupatbhai. According to PW-20, while recording the inquest panchnama it was noticed that the ornaments on the body were looted. The Panchnama of the place (Exh.24) could be recorded on the next morning as it was dark in the evening. In the investigation, it was revealed that the accused was staying in the small room at the field and was doing labour work at Harisinh’s field.
5.12 The investigating officer indicated an important circumstantial aspect in his evidence, namely that in the noon of the day of incident, the accused No.1 had gone to the house of the complainant (PW-1) to call Prabhaben to come to the field stating to her that the bullocks were roaming free and she should tie up them going there. Moreover, investigation showed that at that time when Prabha was going to the field, her neighbour Ranjanben, wife of Dineshbhai asked her as to where she was going and further invited her to come to her house to have a taste of Tal Sankali (a sweetmeat made of ghee, sugar and sesame) which was prepared. Prabha responded that since the labourer from their field had come to call her because the bullocks were moving free, she was required to go there first.
5.13 The evidence of investigating officer further suggested that PW-3 Sahdevsinh had seen the deceased in the noon time at the field together with the deceased persons, which fact was stated by PW-3 in his evidence. It was further stated in his evidence by the investigating officer that on the previous day of the incident, the accused persons had demanded money from Bharatsinh (PW-2) and also that they had gone to the village in the noon time on the day of incident and had purchased tea and sugar from the shop of PW-2. Thus, the evidence of PW-20 provided connecting links to the facts and circumstances which were brought out from the other evidence discussed above.
5.14 Accused No.1 Vinodbhai was arrested on 09.08.2004 from village Santrampur. Accused No.2 Kamlaben was arrested on 08.08.2004 from village Babri, Taluka Panchmahal, and accused No.3 Sharadaben came to be arrested on 10.08.2004 from Santrampur. The arrest panchnamas were recorded.
5.15 The demonstration panchnama (exh.30) was recorded. Accused No.1 showed the place of offence by going to that place along with the police and the panchas.
5.16 Adverting now to the medical evidence, the postmortem report (Exh.18) described 11 injuries as under.
“1. Torned right pinnax upper past, 3x0.3x0.5 cms, skin lost – cartilage exposed, margin zig-zag due to pierced ear holes, clotted blood in margin, 2. Torned left pinnax upper part, 3.5x0.3x0.5 cms, suit lost cartilage exposed, margin zig- zag due to pierced old ear holes, clotted blood in margin,
3. Bruise 2.5x1.5 cms on left side of forhead, above eye brow, brownish,
4. Bruise, 4x2 cms on right subinandibular region, brownish,
5. Bruise, 3x0.2 cms long, upper 1 cms part curved on right side of neck, oblique, brownish,
6. Just below injury no.5 – curved past – Bruise of 0.5 x 0.5 cms rounded, brownish,
7. 2 Bruises, curved, 1x0.2 cms lateral to midline on right side neck, below injury no.6, distance of 0.5 cms. Brownish,
8. Bruise, curved, 1.5 x0.2 cms on midline, left side of neck, oblique, below thyroid cartilage,
9. Bruise, 2.5 x1 cms on mid line and left side of neck, brown transverse, below thyroid cartilage,
10. Bruise 2.5 cms x 0.2 cms, upper 0.5 cms. Curved on left side of neck, brownish
11. Two curved scratch of 0.5 cms on left side of neck, lateral to midline.”
5.17 The doctor’s opinion recorded in the Exh.18 report in which the cause of death was stated as ‘injury on neck is sufficient to cause death leading to asphyxia due to throttling’.
5.18 Dr. Pramodrai Joshi (PW-6, Exh.15), the medical officer at Govt. Health Centre, Wankaner conducted postmortem on 05.08.2004 between 8 to 10 am in the morning. He deposed that the postmortem report (Exh.18) was in his own handwriting and in that he mentioned the eleven injuries. In his evidence, he narrated the condition of the dead body and described the nature of injuries. He opined that the injuries on the neck were sufficient to cause death and that the death had taken place by throttling of the neck by hands, resulting into suffocation. He explained that the throttling could be of various kinds. However, when the neck is squeezed by hands only, it is throttling. If the neck is squeezed with any other article like a string or a thick rope, it is called strangulation. He stated that looking to the position of the dead body, a person would have come from the front and would have throttled the neck with hands. He stated that the death was possible by all the injuries noticed on the neck of the body and they were caused with hands by squeezing the neck. Thus the medical evidence indicated that the death was caused by throttling of neck.
6. In a case where the proof of the offence has to be based on circumstantial evidence, such evidence has to satisfy certain well established tests. In State of Goa Vs. Sanjay Thakran & Another [(2007) 3 SCC 755], the Apex Court reiterated the principles after considering the various decisions on the point.
“(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the 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; and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of 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.”
6.1 As the case was on circumstantial evidence, the motive for the offence became relevant. The evidence suggested that the accused were in need of money and murdered Prabhaben to rob the gold and silver ornaments which she had put on. The circumstances and the attendant evidence clearly pointed to the motive of the crime. As the motive was established and could be imputed, it added strength to the prosecution theory. In Bhagwan Swaroop Lal Bishanlal Vs. State of Maharashtra [AIR 1965 SC 682], it was observed that the motive is not an ingredient of an offence as such, but the proof of motive helps a court in coming to a correct conclusion when there is no direct evidence. In Sakharam Vs. State of M.P. [AIR 1992 SC 758], the Supreme Court reiterated the settled principle that in a case where evidence against the accused was only circumstantial, presence of motive became relevant and is a plus point.
7. Upon considering the evidence on record in its totality as well as in conjunction to one another, following proved circumstances emerged.
(i) All the three accused, working as labourers in the agricultural field, had been staying there only.
(ii) When PW-1 and PW-19 together with the deceased went to the field in the morning of the day of incident, the accused persons were present there.
(iii) The accused knew that the deceased Prabha would be alone in her house as PW-1 and PW-19 had gone to Wankaner.
(iv) Investigating Officer’s evidence revealed following aspects.
(a) In the noon time of that day, accused persons had gone to the village where they purchased tea and sugar from the shop of PW-2.
(b) Importantly, accused No.1 had gone to the house of the deceased also.
(c) The deceased was specifically asked to come to the field by accused No.1.
(d) At the time when she was going to the field, her neighbour one Ranjanaben called Prabha to come to her house to have a sweetmeat. Prabha responded that she was required to first go to the field.
(e) The deceased had gone to the field in the noon.
(v) PW-3 while on his way to the village, spotted the deceased and the three accused together at around 1.30 p.m. in the field.
(vi) PW-1 and PW-19 returned from Wankaner at around 2.45 p.m. They did not find her daughter in the house.
(vii) The dead body was traced by PW-19 and PW-1 with other persons, lying in the corner of a field near and adjoining to the field where the accused were staying.
(viii) The dead body was found in the heap of waste of groundnut. It was stained with mud. Two legs of the body were visible. It appeared that those who committed crime attempted to hide the dead body.
(ix) The ornaments from the body were robbed away and the ears were half cut. Had marks of bleeding.
(x) As per evidence of PW-2, on the previous day of incident the accused had gone to his shop asking for money stating that one of them was suffering from pain in stomach and needed money.
(xi) The motive of crime could be made out, which was to loot the ornaments.
(xii) The belongings of the deceased were recovered near the place where the dead body was lying.
(xiii) A pincer with handle was recovered near the place of the body leading to an inference that it would have been used for retrenching the ears to take out the ornaments.
(xiv) All the accused persons were identified.
(xv) Muddamal ornaments were also identified. PW-19 stated that they were the same which the deceased had put on.
(xvi) The accused had sold the muddamal ornaments going to the jewellery shops in the nearby villages. They were recovered from there and were identified.
(xvii) A strong inference from the evidence was available regarding time of commission of the crime.
(xviii) The conduct of the accused was a pointer. In the morning they were at the field. They were not present in the afternoon when the dead body was located by PW-1, PW-19 and other village persons. The natural conduct would have been to inform about the death of Prabhaben to her parents and not of fleeing away. They were arrested after 4-5 days from another village/town.
(xix) The theory of last seen together could be applied, as discussed hereinafter.
7.1 The above circumstances are so closely interlinked and associated that when taken together, they form a chain of circumstances. The principal fact or the factum probendum that the accused killed Prabhaben stood proved by the obvious inferences which could be drawn from factum probans i.e., the evidentiary facts. The circumstances and events brought out from the evidence taken cumulatively as well as individually, only suggested towards the guilt of the accused. The chain of circumstances starting from the morning on the day of incident when PW-1 and PW-19 went to Wankaner leaving her daughter alone, upto the afternoon when the dead body of daughter Prabha was located, coupled with the conduct of the accused in fleeing were so interrelated as to lead to an inescapable inference of guilt of the accused appellants. The recovery of muddamal ornaments was proved and they were identified, other belongings of the deceased were recovered from the place, recovery of pincer from the place etc. was another circumstance connecting all other circumstances into an unbroken chain. The ocular evidence and the medical evidence matched to prove that the death was by throttling of the neck. There was no circumstance on record which could raise a hypothesis of innocence of the accused persons.
7.2 The evidence discussed herein satisfied the test for proving the guilt on the basis of circumstantial evidence as stated by the Supreme Court in C. Chenga Reddy v. State of Andhra Pradesh [(1996) 10 SCC 193] in the following words.
"In a case based on circumstantial evidence, the 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 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 and totally inconsistent with his innocence ".
8. With a complete chain of circumstances emanating from the evidence on record, the aspect that the accused persons and the deceased were spotted together soon before the tracing of the dead body of the deceased deserved emphasis. One of the strong circumstances to be considered in a case of circumstantial evidence is the evidence of ‘last seen together’. It matters that prior to the incident the accused and the victim are seen together. There again it is the proximity between the point of time when the accused and victim were seen together vis-à-vis the probable time of commission of crime ascertainable from the surrounding circumstances and the attendant evidences is a weighing factor. The doctrine of ‘last seen together’ was explained by the Supreme Court amongst other decisions, in Sanjay Thakran (supra) with following observations.
“From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration.
There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence.”
(para 34).
9. Applying the above principles in relation to “last seen together” theory, the evidence showed that the place of crime was a virtual lonely place. The place of crime was away from village Jambudiya. Between Jambudiya and Wankaner there were several agricultural fields on the way. On the date of incident, it was raining since morning. It was at such place that PW-3 had seen three accused and the deceased together at around 1.30 p.m. The accused had gone to the village in the noon and accused No.1 had asked the deceased to come to the field. These and other narrated circumstances hereinabove suggested that the crime was committed anytime between 1.30 p.m. and 3.00 p.m. in the place where possibility of any other person reaching in the intervening period was ruled out. The time of committing the offence could be zeroed down as above. Therefore, there was close proximity of time between the accused and the deceased seen together as well as the time when the dead body of Prabhaben was located. The Supreme Court in State of Uttar Pradesh v. Satish [(2005) 3 SCC 114] reiterated that the `last seen together' theory comes into play where the time gap between the point of time when the accused and 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.
10. In the above scenario of evidence and for the reasons and discussion above, it was unfailingly established that the offences of murder and robbery were committed by the appellant-accused. The trial court did not commit any error in convicting the accused and sentencing them. No interference was called for in the impugned judgment and order of the trial court. The conviction and sentence recorded in the impugned judgement and order is confirmed.
11. Both the appeal are dismissed.
(A.L. DAVE, J.) (N.V. ANJARIA, J.)
(SN DEVU PPS)