The learned counsel appearing for the appellant has taken
us through the notes of evidence of material prosecution witnesses and other
documents on record of the Trial Court. His submission is that ‘last seen
together’ is a very weak circumstance as there is evidence on record to
show that the appellant and the deceased were related. Very often, they used to
consume liquor together. He submitted that the recovery of the knife at the
appellant's instance had not been proved. He submitted that even the
existence of motive has not been pleaded and proved by the prosecution.
He also submitted100 that if the oral evidence of PW-7 and PW-15 is considered
together, the theory that the death occurred due to120 an accident of motorcycle
cannot be ruled out. Therefore, the benefit of the doubt must be extended to
the appellant. He submitted that every circumstance constituting a chain of
circumstances has not been established.
The learned counsel appearing for the State supported the impugned
judgment. She submitted that the dead body of the deceased was found
within a few hours from the time at which the appellant and the deceased were
last seen together. She submitted that recovery of the200 weapon used by the appellant to
attack the deceased had been duly proved, and all circumstances forming part of
the chain of circumstances have been established.
We have carefully perused the evidence of PW-2, who deposed that
on 29th240 September 1993 till 9.00 pm, the appellant and deceased consumed
liquor in his house. He deposed that the appellant and deceased left his house
after consuming liquor. He stated that the appellant and the deceased had gone
towards mango orchard. The body of the deceased was recovered on the
next day. In the cross-examination, the PW-2 stated that300 two to four times, the appellant
and the deceased had come to his place to drink liquor.
He stated that the deceased used to consume a lot of liquor. PW-6
(Smt. Anjana Devi) is the wife of the deceased, who deposed that the appellant
came to her house and gave a currency note of Rs. 50/- to the deceased and360 forcibly took him for
drinking. After that, the deceased did not come back. She stated that she
deputed her elder son to the appellant's house, where the sister-in-law of the
appellant informed the elder son of the deceased that the400 appellant was sleeping in the
house. Thereafter, the appellant himself visited the house of PW-6 and
enquired whether his brother-in-law had come back. She deposed that at 12.30 pm,
one Raju informed her that the dead body of her husband had been found. She
admitted that her husband used to drink alcohol occasionally.
Sometimes, he used to get drunk, and people used to bring him back home. She
stated that when her husband went with the appellant, she knew480 that they were going to drink
liquor. PW-7 stated that the deceased was his nephew. In the cross-examination,
he accepted500 that the deceased and appellant always used to be
together. Thus, this was not the first occasion when the deceased and
the appellant went together to consume liquor. Apart from being closely
related, they had a close contact, and they used to be together for
drinking.
The prosecution has not come out with a case that there was
some motive on the part of the appellant for killing the deceased. Neither PW-2
nor PW-6 stated that on 29th September 1993, there was any dispute or altercation
between the appellant and the deceased. Thus, the deceased being in600 company of the appellant on 29th
September 1993 was not an unusual circumstance. This makes the case based on
the theory of last seen together very weak in absence of motive.
Now, we come to the evidence of recovery of the weapon of offence
at the instance of the appellant. The first witness to the recovery memorandum
under Section 27 of the Indian Evidence Act, 1872, is PW-2. In the examination-in-chief,
he said that he was not aware who told the police that the knife was
lying in a particular place. He stated that700 the police had said they were
trying to find out the place the accused was telling. He stated that soil720 and knife were recovered from
different locations. He stated that he signed on papers on which something was
written, which was not read over to him. He further stated that he was illiterate.
PW-4 (Arjun) stated
that the police personnel had taken them to the place where the knife was
found. The witness said that he saw the knife first, and thereafter, the police
picked it up. He stated that he was not aware who had told police that
the800 knife would be
found at that place. On plain reading of the evidence of these two witnesses,
it is apparent that the recovery of the knife at the instance of the appellant
has not been duly proved. They have not840 stated that the discovery
was made from a place disclosed by the appellant in their presence. Moreover,
memorandum recording the statement of the appellant has not been duly proved.
So, one part of the chain of circumstances has not been established.
PW-7 stated in the
cross-examination that he had gone to the place of incident. He stated that
there were900 pieces of glass lying there. He stated that the pieces of glass
may be of the light of a motorcycle. He stated that he had informed the police
that the deceased may have sustained injury due to an accident involving a
motorcycle.
PW-15 is the
doctor who performed a postmortem of the body of the deceased. In the
cross-examination, he960 admitted that if the glass pieces were small and sharp, the
injury sustained by the deceased could have been caused by small pieces
of glass.985
