“........Mere non-explanation cannot lead to the proof
of guilt against the appellant. The prosecution has to
prove its case against the appellant beyond
reasonable doubt. The chain of circumstances, in our
opinion, is not complete so as to sustain the
conviction of the appellant.....”
17. We may also refer to State of Goa v. Sanjay
Thakran and Anr. (2007) 3 SCC 755 where this Court
held that in the absence of any other corroborative piece of
evidence to complete the chain of circumstances it is not
possible to fasten the guilt on the accused on the solitary
circumstance of the two being seen together. Reference
may also be made to Bodh Raj alias Bodha and Ors. v.
State of Jammu and Kashmir (2002) 8 SCC 45 where
this Court held :
“The 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 author of the crime becomes impossible. It
would be difficult in some cases to positively
establish that the deceased was last seen with the
accused when there is a long gap and possibility of
other persons coming in between exists. In the
absence of any other positive evidence to conclude
that the accused and the deceased were last seen
together, it would be hazardous to come to a
conclusion of guilt in those cases....” JUDGMENT
18. Finally in Jaswant Gir v. State of Punjab (2005)
12 SCC 438, this Court held that it is not possible to convict
Appellant solely on basis of 'last seen' evidence in the
absence of any other links in the chain of circumstantial
evidence, the Court gave benefit of doubt to accused
persons.
19. Abdul Mabood-deceased was a young, physically stout
boy aged 20-22 years. In the absence of any suggestion as
to how and where he was done to death it is difficult to infer
anything incriminating against the appellant except a strong
suspicion when he returned at night to the farm of Tajveer
Singh with soiled clothes. The explanation given by the
appellant for his clothes getting soiled can also not said to
be so absurd that one could straightway reject and count the
same as an incriminating circumstance so conclusive in
nature that the Court could presume that they were
explainable only on the hypothesis that the appellant had committed the crime alleged against him.
20. Suffice it to say that even if we take the most
charitable liberal view in favour of the prosecution, all that
we get is a suspicion against the appellant and no more. The
High Court was in that view justified in setting aside the
order passed by the trial Court and acquitting the appellant
of the offence of murder under Section 302 IPC. The order
passed by the High Court deserves to be affirmed giving to
the appellant the benefit of doubt. We accordingly dismiss
the appeal filed by the appellant and discharge the notice of
show-cause issued to him.
(T.S. Thakur)
(Gyan Sudha Misra) New Delhi January 8, 2013