25 July 2022 5:45 AM GMT
The Tripura High Court has held that it is the prosecution which has to prove the "last seen theory", together with the other connecting circumstances, to show that except the accused, no other person could have committed the alleged offence. The observation came from a division bench of Justice T. Amarnath Goud and Justice Arindham Lodh: "It is the prosecution who has to prove...
The Tripura High Court has held that it is the prosecution which has to prove the "last seen theory", together with the other connecting circumstances, to show that except the accused, no other person could have committed the alleged offence.
The observation came from a division bench of Justice T. Amarnath Goud and Justice Arindham Lodh:
"It is the prosecution who has to prove the last seen together with the other connecting circumstances that except the accused persons no other person could commit the offence. In the instant case, it cannot be ruled out that PW-9, PW-10 and PW-12 could not disclose that they had seen the deceased with the appellants on the relevant date and time for the last time. The scribe i.e. PW-14 also failed to substantiate that the accused-appellants herein had murdered his father i.e. Sukumar Das. Thus, the prosecution has not been able to connect the said appellants with the commission of offence beyond all reasonable doubt."
Two appeals were filed from the judgment of conviction by the Sessions Court. The appellants were convicted under Section 302 read with section 34 of the IPC and sentenced to rigorous imprisonment for life for allegedly murdering the complainant's father.
Appellants submitted that the prosecution has miserably failed to establish the charges levelled against the convict-appellants. They argued that there is no eye witness to the alleged occurrence and the last seen theory cannot sustain in the instant case.
Public prosecutor had supported the findings of the trial court while convicting the accused-appellants. He submitted that if the evidences are appreciated it cannot be said that the finding of conviction is without evidence or suffers from any infirmity.
The Court noted that the conviction of the appellants is mainly based on the "principle of last seen together", as surfaced from the prosecution witnesses. In view of this, it would be apposite to survey of the evidences and materials brought on record, to test the sustainability of the findings of guilt and the conviction thereof.
The Court then perused the statements of the witnesses on record and opined that trial court after taking into cumulative evidences of PW-9, PW10 and PW-12 had returned the findings of conviction against the appellants. From better scanning of the evidences on record, it came to light that none of the aforesaid witnesses had seen the deceased Sukumar Das alongwith the appellants on the alleged date of incident. They had conjointly deposed that on the way of their return to their respective dwelling house they saw both the appellants on the road with whom they had also talked but, only PW-12 had deposed that one of the appellants, namely, Halal Nama @ Tapas Nama had pushed Sukumar Das but, lateron Sukumar Das also went to his residence.
Thus, nothing material had been elucidated from their evidences to establish the theory of last seen together, Court said.
Having perused through all evidences, the court came to the conclusion that there is no evidence to link the appellants with the alleged murder.
"None of the witnesses had stated that they had seen any of the appellants assaulting or threatening the deceased, Sukumar Das. Moreover, there is no eye witness to the alleged incident except mere confessional statement of the appellants. Further, it is evident that the appellants were taken into custody by the police on 17.06.2018 after which their statement ought to have been recorded before any Judicial Magistrate but, their confession was recorded before the Executive Magistrate, which is not admissible as per Evidence Act."
Court also said that based on the above discussion, the evidences adduced by the prosecution are not only shaky but also inconclusive and improbable and inconsistent with the guilt of the appellants.
"We have no hesitation to hold that the prosecution fails to prove the complete chain of circumstantial evidence as required for drawing an inference that the murder of the deceased was committed only by the appellants and none else."
In view of the above, the court allowed both appeals.
Case Title: Sri Janardhan Murasingh v. The State of Tripura
Citation: 2022 LiveLaw (Trip) 15
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