They reached Gate Khazana at 1.25 P.M., which was a thickly populated area. No independent witness was joined by IO at the time of alleged arres
of accused Prince. No person of locality was called at the time of alleged recovery. Juvenile Gagandeep met him at Gate Hakima while he was i
police custody. He was not interrogated in his presence. The police party went to the house of juvenile Gagandeep Singh. They met so many people
The house of Gagandeep Singh was situated in an area surrounded by so many houses. The chain was recovered from the almirah.
18. PW11 Sahib Singh deposed that his mobile phone was stolen during intervening night of 8/9.6.2012 from his house. He went to Police Station C-
Division along with councilor Dilbagh Singh.
19. PW4 Vijay Kumar testified that on 12.6.2012 at about 9.00 P.M. he met Harpreet Singh @ Happy, Kulwinder Singh @ Kinda, Gagandeep Singh
@ Jang and Sukhchain Singh @ Mintu. A young boy was sitting between Gagandeep Singh and Kulwinder Singh on their motorcycle. He enquired
about that young boy. They told that he was their son and was sick. He was being taken for treatment. On the next day, he went out of station. On his
return, he came to know that on 12.6.2012 a boy Karan was kidnapped and was untraceable. He had admitted in his cross-examination that the
complainant was his nephew. He had also admitted that on 13. 6.2012, he came to know about the kidnapping of Sushant @ Karan. His statement was
recorded on 21.6.2012. In case he had seen the accused Harpreet Singh @ Happy, Kulwinder Singh @ Kinder, Gagandeep Singh @ Johny and
Sukhchain Singh @ Mintu taking away Karan, he would have definitely told his nephew PW1 Sunil on the same day. His conduct was unusual.
20. PW5 Tarsem Singh has given a new version to the incident. According to him, he was an auto rickshaw driver. On 12.6.2012 at about 11/11.30
A.M., he was standing ahead of chowk Gate Hakima. He saw Prince on a motorcycle and Karan @ Sushant as a pillion rider. They were going
towards Gate Khazana. He came back to his house on 21.6.2012 and came to know about the kidnapping of Karan. He narrated the whole
occurrence to the IO. He admitted in his cross-examination, that when the police added the name of juvenile Gagandeep in the case due to that he
also got recorded the name of Gagandeep Singh.
21. In case PW4 Vijay Kumar and PW5 Tarsem Singh have last seen the accused taking away Karan, they should have contacted PW1 Sunil Kumar.
Their conduct is unusual. PW4 Vijay Kumar had seen Harpreet Singh @ Happy, Kulwinder Singh @ Kinda, Gagandeep Singh @ Jang and Sukhchain
Singh @ Mintu taking away Karan on 12.6.2012 at about 9.00 P.M, whereas PW5 Tarsem Singh had seen only accused Prince taking away Karan
on 12.6.2012 at about 11/11.30 A.M. The dead-body was recovered on 20.6.2012 as per inquest report. “The theory of last seen together†is
applicable when the time of last seen together and death is short.
22. Their Lordships of Hon'ble the Supreme Court inS .K. Yusuf vs State of West Bengal 2011 (11) Supreme Court Cases 754, have held that theory
of 'last seen together' comes into play, where time gap between point of time when deceased was last seen alive with accused and when deceased
was found dead, is so small that possibility of any person other than accused being author of crime becomes impossible. Para 21 of the judgment is
reproduced as under:-
“21. The last seen 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.â€
23. Their Lordships of Hon'ble the Supreme Court inN izam and another vs State of Rajasthan 2016 (1) Supreme Court Cases 550, have held that
“last seen theory†is important link in chain of circumstances that would point towards guilt of accused with some certainty. Such theory permits
court to shift burden of proof to accused and he must then offer a reasonable explanation as to cause of death of deceased. However, it is not prudent
to base conviction solely on “last seen togetherâ€. Such theory should be applied, taking into consideration case of prosecution in its entirty and
keeping in mind circumstances that precede and follow the point of being so last seen. Where time gap is long, it would be unsafe to base conviction on
“last seen togetherâ€. It is safer to look for corroboration from other circumstances and evidence adduced by prosecution. Paras 14 to 18 of the
judgment are extracted below:-
“14. The 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
theoryâ€. “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.
15. Elaborating the principle of “last seen alive†in State of Rajasthan vs. Kashi Ram (2006) 12 SCC 254, this Court held as under:-
“23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are
unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon
him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an
explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer
an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act.
In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself
provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is
always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his
knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any
explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. (AIR 1960 Mad 218)â€
The above judgment was relied upon and reiterated in Kiriti Pal vs. State of West Bengal, (2015) 5 Scale 319.
16. In the light of the above, it is to be seen whether in the facts and circumstances of this case, whether the courts below were right in invoking the
“last seen theory.†From the evidence discussed above, deceased-Manoj allegedly left in the truck DL-1GA-5943 on 23.01.2001. The body of
deceased-Manoj was recovered on 26.01.2001. The prosecution has contended the accused persons were last seen with the deceased but the
accused have not offered any plausible, cogent explanation as to what has happened to Manoj. Be it noted, that only if the prosecution has succeeded
in proving the facts by definite evidence that the deceased was last seen alive in the company of the accused, a reasonable inference could be drawn
against the accused and then only onus can be shifted on the accused under Section 106 of the Evidence Act.
17. During their questioning under Section 313 Cr.P.C., the appellant-accused denied Manoj having travelled in their truck No. DL-1GA-5943. As
noticed earlier, body of Manoj was recovered only on 26.01.2001 after three days. The gap between the time when Manoj is alleged to have left in the
truck No.DL-1GA-5943 and the recovery of the body is not so small, to draw an inference against the appellants. At this juncture, yet another aspect
emerging from the evidence needs to be noted. From the statement made by Shahzad Khan (PW-4) the internal organ (penis) of the deceased was
tied with rope and blood was oozing out from his nostrils. Maniya village, the place where the body of Manoj was recovered is alleged to be a notable
place for prostitution where people from different areas come for enjoyment.
21. This Court in Bharat v. State of M.P., (2003) 3 SCC 106, held that the failure of the accused to offer any explanation in his statement under
Section 313, Cr.P.C alone was not sufficient to establish the charge against the accused. In the facts of the present case, the High Court committe
an error in holding that in the absence of any satisfactory explanation by the accused the presumption of guilt of the Accused stood un-rebutted and
thus the Appellants were liable to be convicted.
The same principles were reiterated in Sunil Clifford Daniel v. State of Punjab (2012) 11 SCC 205, Sampath Kumar v. Inspector of Police (2012) 4
SCC 124 and Mohd. Arif v. State (NCT of Delhi) (2011) 13 SCC 621 and a number of other decisions.â€
27. The case of the prosecution is that the accused asked for ransom on mobile phone. Firstly, the phone call was made to PW1 Sunil Kumar and
thereafter to his brother PW3 Sanjeev Kumar. Though the police has taken the call details but these were not exhibited. These were only marked as
Mark-A to Mark-C. It was necessary for the prosecution to prove the call details as per Section 65 of the Evidence Act. Ownership of the mobile has
also not been proved in accordance with law.
28. PW7 Inspector Manjit Singh and PW8 HC Buta Singh had admitted that the accused was arrested from thickly populated locality and the
recoveries also were made from him but no independent witness was associated at the time of his arrest as well as when the recoveries were made.
According to them, some entries were made in the diaries recovered from the accused but the hand writings were not got compared with the hand
writings of the accused.
29. According to PW9 Dr. Ashish Gupta, the cause of death was due to fracture of Hyoid bone and thyroid cartilage. However, in his cross-
examination, he admitted that nobody identified the dead-body in his presence. He also admitted that he could not tell the exact time of death of
deceased.
30. Accordingly, the revision is allowed. The petitioner is acquitted of the charges framed against him by giving benefit of doubt.
