1. This appeal is directed against the judgment dated 10/2/1995 passed by the Addl. Sessions Judge, Banswara in Sessions case no. 325/1992, whereby, the appellant was convicted and sentenced as under:

Offence Sentence Fine 302 IPC Life Imprisonment Rs.100/- and in default of which to further undergo one month R.I. 364 IPC Seven years’ R.I. RS.100/- and in default of which to further undergo one month R.I.

2. The facts of the case, as revealed, inter alia indicate that Mohd. Ishaq, P.W.1, gave written report (Ex.P/1) at Police Station, Kotwali, Banswara to the effect that on 1/7/1992 at about 2.00 pm he along with his brother Mohd. Noor was filling mud in the ‘Nala’ situated in the field of Parkha Ram; at that time two girls went towards Ankaleshwar; after 20 minutes they heard cries, they felt that somebody might have caught the girls so they went to the hill and saw one girl was standing and another girl was tied to the tree, they went there and asked the girl as to what happened to the other girl tied to the tree, she replied that two boys of Aamli Kheda had killed her, she indicated her name as Leela and that deceased was Tara. They asked Leela to accompany them to police station, her conduct was abnormal. The police registered the case against unknown persons and started investigation. During the course of investigation, the appellant was arrested and ultimately challan was filed.

3. The trial court framed charges under Section 302, 364 and 394 IPC. On behalf of the prosecution as many as 11 witnesses were examined and the appellant recorded her statement under Section 313 Cr.P.C. After hearing the parties, the trial court by its impugned judgment dated 10/2/1995 convicted and sentenced the appellant as indicated above.

4. Learned counsel for the appellant made vehement submissions that the trial court fell in error in convicting the appellant for committing offence under Section 302 & 364 IPC.

5. Submissions have been made that there was no direct evidence to prove that the appellant had committed the offence and the trial court, based on the alleged circumstantial evidence and purported last seen, has wrongly convicted the appellant.

6. It was emphasized that neither the chain as required for conviction based on circumstantial evidence is complete nor someone can be convicted only based on last seen evidence. It was emphasized that the two circumstances, which were relied on by the prosecution i.e. purchase of rope by the appellant, could not be relied on as the witness proving the fact of purchase, Alok Nagawat, P.W.5, has turned hostile and the other circumstance pertaining to recovery of nose ring from the appellant has not been believed by the trial court itself.

7. Submissions have also been made that Dr. L.C.Maida (P.W.4), who had conducted postmortem of the deceased, clearly indicated that some white discharge was there at the vaginal orifice of the deceased and her pubic hair were stuck together, the said discharge was sent for chemical analysis and in cross examination he indicated that the discharge was like semen and if it was confirmed from chemical analysis, it could not be denied that the deceased was subjected to intercourse. However, despite the fact that said material was sent for chemical analysis, the FSL report never saw the light of the day, which material evidence has apparently been suppressed and, therefore, the conviction of the appellant cannot be sustained. It was emphasized that it is well settled that conviction cannot be upheld only based on the theory of last seen. The appellant only on account of her friendship with the deceased has been trapped in the name of last seen, whereas, she had nothing to do with the offence and, therefore, the appeal be allowed. Reliance was placed on Basheera Begam vs. Mohd. Ibrahim & Ors. : (2020) 11 SCC 174, [LQ/SC/2020/162] Anwar ali vs. Stte of Himachal Pradesh : 2005 (1) CJ (SC) 5 and Sharad Birdhichand Sarda vs. State of Maharashtra : 1984 (2) Crimes (SC) 235.

8. Learned Public Prosecutor vehemently opposed the submissions. It is submitted that the trial court after exhaustive analysis of the evidence which came on record, has recorded the finding of guilt against the appellant, which does not call for any interference.

9. It was submitted that it is proved that the appellant was last seen with the deceased and none else was present around them. The rope by which the deceased was tied to the tree was purchased by her and despite the fact that the witness P.W.5 turned hostile, the said aspect stands proved. Further, on medical examination, injuries were found on the body of the appellant and once she was last seen with the deceased, the burden lay on her to explain the cause of death, on failure in this regard the presumption under Section 106 of the Evidence Act would be attracted and, therefore, the trial court was justified in reaching to the conclusion that the deceased Tara was killed by the appellant Leela and, therefore, the appeal deserves to be dismissed.

10. We have considered the submissions made by learned counsel for the parties and have perused the record of the case.

11. The written report dated 1/7/1992 (Ex.P/1) was given by P.W.1 Mohd. Ishaq at 3.00 pm inter alia indicating the sequence of events as noticed hereinbefore that two girls crossed the field where he along with his brother Mohd. Noor (P.W.2) was working and after about 20 minutes he heard cries of a lady, when he along with his brother reached the hillock he saw a girl standing under the tree and another girl was tied to the tree by rope, seeing them the girl standing there started to leave and when they stopped her and asked her what happened, she indicated that two boys from Aamli Kheda have strangulated the girl & when she was asked to accompany them to police station, she took out two pieces of jewellery from the deceased, she indicated her name as Leela D/o Khem Ji and name of the deceased was Tara. It was indicated that the fact about death caused by the boys does not appear to be satisfactory. Based on the said written report, FIR (Ex.P/2) was registered by the police.

12. Whereafter, the site map (Ex.P/3 & P/4) were prepared. The postmortem took place at 10.10 am on 2/7/1992 (Ex.P/14), wherein, the opinion of the medical jurist was that the death was caused due to asphyxia caused by strangulation. It also indicated that the vaginal swab and smear sealed for chemical analysis for presence of semen (spermatozoa) and packet containing the same was sent for chemical analysis vide Ex.P/15. The packet with the sample was sealed. The injury report of the appellant is dated 5/7/1992 at 7.00 pm indicating pinhead 1 cm long abrasion on the left hand. By Ex.P/20 the sample collected was sent to FSL, Rajasthan, Jaipur and receipt Ex.P/21 of the sample from FSL,Japur has also been exhibited. The appellant was arrested on 4/7/1992 during the course of investigation.

13. Undisputedly, the present case rests entirely on circumstantial evidence. The Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda (supra) has laid down the principles with regard to the conviction in a case which rests entirely on circumstantial evidence, which reads as under:

“A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”

14. From the above principles laid down by the Hon’ble Supreme Court, it would be seen that it is necessary that the accused ‘must be’ and not merely ‘may be’ guilty before a court can convict the accused and that the facts must establish the guilt of the accused only and circumstances should be to the exclusion of every possible hypothesis except the one to be proved.

15. The trial court in its impugned judgment has relied on the theory of last seen together with the deceased, purchase of rope by which the deceased was to the tree by the appellant and injuries found on the body of the appellant. The trial court on coming to the conclusion that prosecution has proved the aforesaid circumstances against the appellant has convicted her.

16. A scanning of the statements of witnesses reveals that P.W.1, Mohd. Ishaq, indicated that the appellant along with the deceased crossed the field where he was working and after about 20 minutes he heard cries of a lady and he along with his brother Mohd. Noor rushed to the site, where he saw the deceased tied to the tree and appellant standing there. In cross examination, he indicated that the field was 50 ft. away from the site of incident. Whereas, P.W.2, Mohd. Noor, in his statement indicated that he heard the cries after 5-10 minutes after the girls crossed the field. There is apparently, no explanation that in case the incident took only at about 50 ft. from the field and there must be altercation between the appellant and the deceased, except for purported last cries of the deceased, how P.W.1 and P.W.2 could not hear anything prior to the same. The evidence which has come on record indicates that when the said witnesses P.W.1 and P.W.2 reached the site already the victim Tara was dead. This is not even the case of the said witnesses that after hearing the cries when they reached the site, they even examined Tara. If the cries were heard and the distance of the site was only 50 ft. from the field, the fact that within the time the said witnesses could reach the site, the victim was already dead and the witnesses did not even care to see whether she was still alive, makes the entire sequence as indicated as suspicious.

17. Further, the said witnesses alleged that while leaving for police station, the appellant took out the jewellery of the deceased in their presence and the same were delivered to the police at the police station and the police on its part, did not seize the said articles and handed over the same to the father of the deceased, as indicated by the Investigating Officer, P.W.11 in his statement, which clearly shows lack of motive to take/steal her jewellery inasmuch as if the intention was to take the jewellery of the deceased, the same would have normally happened even before the said P.W.1 and P.W.2 reached the site.

18. Apparently, as the fact about two pieces of jewellery of the deceased had already been indicated to have been delivered at the police station, the prosecution showed recovery of nose ring of the deceased from the appellant based on the information allegedly given by her under Section 27 of the Evidence Act. However, the trial court based on the recovery memo (Ex.P/19) and the statement of P.W.6, Motiya, father of the deceased and Vithla, P.W.8 that the nose ring was taken out by the police from the purse of the appellant at the site of the incident only, came to the conclusion that Ex.P/19 could not be relied on and the recovery was suspected. Father of the deceased, Motiya (P.W.6) clearly indicated that there was no dispute between the appellant and the deceased, as such, apparently, the aspect of there being any motive available to the appellant for committing the murder of the deceased is wholly absent, inasmuch as neither there was any dispute nor the accused took away any of the ornaments etc. of the deceased.

19. Further, a bare look at the postmortem report (Ex.P/14) and the pictures Ex.P/7 to Ex.P/13 indicate that the deceased was aged about 22 years and was well built and from the arrest memo of the appellant (Ex.P/22) it appears that the appellant also, though was about the same age, was pregnant of 05 months and also had a child aged one year and, therefore, it cannot be believed that in case the appellant had committed offence the deceased would not have provided any resistance and a five months pregnant lady, who also had a child birth only a year back would normally overcome the deceased without any marks on her body. As such, the entire theory propounded by the prosecution is apparently very weak.

20. The proof of circumstance about the purchase of rope by which the deceased was found tied with the tree by the appellant also appears to be quite flimsy inasmuch as like the recovery of nose ring of the deceased from the appellant as reflected in Ex.P/19, which has been disbelieved by the trial court, the information recorded under Section 27 of the Evidence Act (Ex.P/17) only indicates that the appellant took the police to the shop from where the rope was purchased. However, when P.W.5, Alok Nagawat, son of the shop keeper, was produced for proving the said fact, he clearly stated that he was taken to the police station where he denied that he knows the girl and when the next day the police came to his shop, the girl was not with them and police prepared some document, which bears his signature. The witness was declared hostile and on cross examination by the prosecution indicated that he has not recorded the statement as contained in Ex.P/18. The said statement of P.W. 5 has been used by the trial court for coming to the conclusion that the rope by which the deceased was found tied to the tree was purchased by the appellant. The said finding, in view of the categorical statement of P.W. 5 giving out the fact that police called him to the police station, wherein, he did not recognize the appellant and on the next day his statements were got signed and that the appellant did not accompany the police, clearly demolishes the purported information under Section 27 of the Evidence Act pertaining to the appellant indicating the shop from where she purchased the rope. Even in one line cross examination by the public prosecutor, after declaring the said witness as hostile, he stuck to his guns about not giving statement Ex.P/18 purportedly recorded during investigation, as such, the said circumstance relied on by the trial court cannot be sustained.

21. The fact that during the course of postmortem of the deceased, Doctor found white material present over the vaginal orifice and external genitals, some pubic hair attached to each other, the white material was sealed for chemical analysis for any evidence of semen (spermatozoa) and the said aspect was reiterated by the Doctor in his statement as P.W. 4, the packets were prepared by Ex.P/15 and were delivered to FSL through Ex.P/20 & receipt Ex.P/21, however, the outcome of the same has not been produced by the prosecution and no explanation in this regard has come on record as to why the FSL report has not been produced, the plea raised by the counsel for the appellant raising presumption that in case the report was produced, the same was against the prosecution gains strength. The above aspect is also relevant in view of the fact that P.W.6, Motiya and P.W.7, Bakta, father & mother of the deceased had indicated that from seven days prior to the date of incident, the deceased had come from her matrimonial home to the house of her parents and, therefore, the FSL in case it indicated presence of semen, the same would have required a lot of explanation from the prosecution.

22. So far as the injury found on the body of the appellant vide Ex.P/16 is concerned, the only purported injury found on her body is 1 cm long pinhead sized abrasion on dorsal aspect of left hand. The availability of 01 cm long pinhead sized abrasion on the left hand cannot possible form the basis for coming to the conclusion of any altercation between the appellant and someone else including the deceased.

23. In view of the above, the circumstances relied on by the trial court for coming to the conclusion of guilt of the appellant cannot be sustained and it cannot be said that the parameters laid down by the Hon’ble Supreme Court for concluding that the offence must or should have been committed by the appellant is not fulfilled at all.

24. Coming to the aspect of last seen, Hon’ble Supreme Court in Kanhaiyalal v. State of Rajasthan : (2014) 4 SCC 715 [LQ/SC/2014/295] on the circumstance of last seen, inter alia, laid down as under:-

“12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.”

25. The Hon’ble Apex Court in Jabir & Ors. vs The State of Uttrakhand : 2023 SCC Online SC 32, on the aspect of convicting the accused only on the basis of last seen circumstance, laid down as under:

“28. This court is also of the opinion that apart from the above serious infirmities, there is no evidence, oral or any material object, which connects the appellant-accused with the crime. It has been repeatedly emphasized by this court, that the “last seen” doctrine has limited application, where the time lag between the time the deceased was seen last with the accused, and the time of murder, is narrow; furthermore, the court should not convict an accused only on the basis of the “last seen” circumstance. In Jaswant Gir vs. State of Punjab, this court explained the soundness of such a rule:

“Without probing further into the correctness of the "last-seen" version emanating from P.W. 14's evidence, even assuming that the deceased did accompany the accused in their vehicle, this circumstance by itself does not lead to the irresistible conclusion that the Appellant and his companion had killed him and thrown the dead body in the culvert. It cannot be presumed that the Appellant and his companions were responsible for the murder, though grave suspicion arises against the accused. There is considerable time-gap between the deceased boarding the vehicle of the Appellant and the time when P.W. 11 found the dead body. In the absence of any other links in the chain of circumstantial evidence it is not possible to convict the Appellant solely on the basis of the "last- seen" evidence, even if the version of P.W. 14 in this regard is believed. In view of this, the evidence of P.W. 9 as regards the alleged confession made to him by the Appellant assumes importance.”

29. Recently, in Rambraksh vs. State of Chhattisgarh, this court after reviewing previous decisions, stated as follows:

“10. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, 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 perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.

11. In a similar fact situation this Court in the case of Krishnan v. State of Tamil (2014) 12 SCC 279, [LQ/SC/2014/655] held as follows:

21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Arjun Marik v. State of Bihar (1994) Supp (2) SCC 372) [LQ/SC/1994/297] 31. Thus the evidence that the Appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the Appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.”

22. This Court in Bodhraj v. State of (2002) 8 SCC 45) [LQ/SC/2002/898] held that: 31. The last seen theory comes into play where the time gap between the point of time when the accused and the 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.” It will be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together.

23. There is unexplained delay of six days in lodging the FIR. As per prosecution story the deceased Manikandan was last seen on 4-4-2004 at Vadakkumelur Village during Panguni Uthiram Festival at Mariyamman Temple. The body of the deceased was taken from the borewell by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and in the intervening period of seven days there was nobody in contact with the deceased.

24. In Jaswant Gir v. State of Punjab (2005) 12 SCC 438) [LQ/SC/2005/454] , this Court held that in the absence of any other links in the chain of circumstantial evidence, the Appellant cannot be convicted solely on the basis of "last seen together" even if version of the prosecution witness in this regard is believed.”

30. Again, in Nizam & Ors. v State of Rajasthan, it was held as follows:

“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 theory". "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.”

26. The principles laid down by Hon’ble Supreme Court on the said aspect are well established, wherein, it has been laid down that the last seen doctrine has limited application and the Court should not convict the accused only on the basis of last seen circumstance. Further, even assuming that the deceased did accompany the accused, this circumstance by itself does not lead to irresistible conclusion that the appellant had killed her. It has been emphasized with regard to the conviction, last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused and that in the absence of any link in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of last seen together.

27. Applying the above principles to the case in hand, even if it is seen and established that the appellant was last seen with the deceased, as discussed hereinbefore, in view of the fact that the prosecution has failed to establish any of the circumstance to complete the chain of event, besides the fact that there is lack of any motive in appellant in murdering the deceased, only on the theory of last seen the appellant could not have been convicted by the trial court.

28. In view of the above discussion, we are firmly of the opinion that the conviction of the appellant by the trial court cannot be sustained.

29. Consequently, the appeal is allowed. The judgment dated 10/2/1995 passed by Addl. Sessions Judge, Banswara in Sessions Case No. 325/92 convicting the appellant under Section 302 and 364 IPC is set aside. The appellant is acquitted of the charges for which she has been charged with. As the appellant is on bail in terms of order dated 26/7/1995, whereby, her sentence was suspended and she was enlarged on bail, the bail bonds of the appellant shall stand discharged.