"Conviction Based On Untrustworthy Last Seen Evidence": Allahabad High Court Acquits 3 Accused In A 30 Year Old Murder Case

The Allahabad High Court on Tuesday set aside the conviction of 3 murder accused in a 30 year old case as it found that the conviction recorded by the Trial court was based on untrustworthy last seen evidence.

The Court also opined that the accused had been seriously prejudiced on account of the non-examination of the Investigating Officer during the trial, and this omission had created a deep dent in the prosecution case.

The Bench of Justice Sunita Agarwal and Justice Subhash Chandra Sharma also observed that the prosecution had failed to establish every link in the chain of circumstance beyond all reasonable doubt to establish the guilt of the accused, leaving reasonable grounds for the conclusion consistent with the innocence of the accused.

The case in brief 

Essentially, the first information report was lodged in the case at the instance of one Jeet Singh (P.W.-1) on December 27, 1991, at about 10.30 A.M. who reported about the death of his brother Vijay Pal Singh (deceased).

It was submitted that the deceased used to come back daily from the workplace in the evening and when on December 23, 1991, he did not return home, he was looked after everywhere and was ultimately, his dead body was found near the field of one Shambhu Pandit hidden in a 'paddy Payar'.

There were injuries of a sharp-edged weapon on the forehead and chin. After the recovery of the body, PW-1 went to the police station to lodge the first information report, and then he met Pradeep, Rakesh Awasthi (PW-2) who told him that they had seen the deceased alive in the company of appellants Rajpal Singh and Manoj near the Nursery and both the appellants were carrying sharp-edged weapons in their hand which was like kulhari (axe).

The prosecution also sought to prove personal enmity between the accused persons and the deceased. Having analyzed the facts of the case and evidence coupled with the circumstances, the IIIrd Additional District & Sessions Judge, Kanpur Dehat convicted then under Section 302, 201, 120-B IPC vide judgment and order dated 08.05.1997. Challenging the same, the accused appellants moved to the High Corut.

High Court's analysis and Judgment

At the outset, the Court noted that the statement of the witness of last seen (P.W.-2) does not inspire the confidence of the Court. The Court noted that he had disclosed the deceased having been seen in the company of the accused Manoj and Rajpal only after recovery of the dead body on 27.12.1991 when he had reached at the place of recovery though he was resident of the same village.

Further, the Court also did not find the manner in which he described having seen the deceased alive in the company of the appellants Manoj and Rajpal as trustworthy, as it remarked thus:

"The statement of P.W.-2 that he had seen three persons talking with the deceased Vijay Pal Singh and two of them were Rajpal and Manoj who were carrying Kulharis (axes) seems unbelievable. It could not be explained why the accused persons would carry murder weapons in their hands while talking to the deceased on the road side when they already had plans to kill him. Further the prosecution is completely silent about the third person who was seen by P.W.-2 alongwith two accused Manoj and Rajpal and deceased Vijay Pal Singh."

The Court also took into account the fact that another witness of last seen who was allegedly traveling with P.W.-2 had not been produced in the witness box. Regarding the implication of the third appellant, Munna Ram @ Baba, the Court observed, there was no evidence of last seen of the deceased alive in his company. 

Apart from the evidence of the witness of last seen, the court also refused to rely upon the testimony of the other two witnesses namely PW-3, the witness of extra-judicial confession of the accused, and PW-5, the witness of the conspiracy.

In this regard, the Court made the following remark

"It is evident that the prosecution witnesses who were either related to the deceased or his neighbours made lots of enquiries on their own to find out the culprit and in that process many different stories were concocted. The contradictions in the statement of the witnesses arose as they made improvements to prove them right. 46 The prosecution has tried to form the chain by connecting loose links from here and there. Three prosecution witnesses namely PW.2, PW.3 and PW-5 had seen or met the accused persons namely Rajpal and Manoj at different times on the very day when he had gone missing, i.e. 23.12.1991, but all of them had left the village for one or other reason and entered in the scene only on 27.12.1991 after the discovery of the dead body. The explanation offered by these three witnesses for their absence in the village between 23.12.1991 and 27.12.1991 is not convincing. These witness namely PW-2, PW-4 and PW-5 are unreliable and untrustworthy."

Against this backdrop, the Court came to the conclusion that all the above circumstances put together raised many questions about the manner in which the investigation was conducted and evidence was collected by the Investigating Officer to submit a charge sheet against three accused persons, but, since the Investigating Officer had not entered in the witness box, the Court observed that all the questions, therefore, remain unanswered.

Consequently, the Court concluded that the cumulative effect of the prosecution evidence, thus, was that the witnesses of the prosecution have not been found trustworthy; the contradictions in their testimony remained unexplained for non-examination of the Investigating Officer; the chain of circumstances put forth by the prosecution had many loose links which could not be connected to each other.

"The result is that the complete chain of the circumstances could not be formed by the prosecution to unerringly point towards the guilt of the accused persons excluding every possible hypothesis except one to be proved," the Court held as it stressed that it could not be shown that in all human probabilities the act must have been done by the accused persons and no on else.

Accordingly, the judgment and order passed by the IIIrd Additional District & Sessions Judge, Kanpur Dehat was set aside. The appeals were allowed, accused-appellant were acquitted. 

Case title - Rajpal Singh v. State of U.P. along with two connected appeals

Case Citation: 2022 LiveLaw (All) 177

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