'Evidence of last seen together not enough,' SC sets aside conviction of man for killing wife's cousin in 2016

A bench of Justices Sanjay Karol and Prashant Kumar Mishra pointed out the case at hand also the only evidence against the appellant is of ‘last seen together’.

"The evidence of motive does not satisfy us to be an adverse circumstance against the appellant inasmuch as if the appellant has any doubt about his wife’s chastity, he would have caused injury or harm to his wife rather than to the wife's cousin with whom he had no animosity. Moreover, the so-called weapon of the offence i.e. the stone has not been recovered at his instance nor there is any memorandum statement of the appellant," the bench said.

The bench emphasised this court in Kanhaiya Lal Vs State of Rajasthan (2014) has held that evidence on ‘last seen together’ is a weak piece of evidence and conviction only on the basis of ‘last seen together’ without there being any other corroborative evidence against the accused, is not sufficient to convict the accused for an offence under Section 302 IPC.

Appellant Padman Bibhar challenged validity of the judgment and order of April 15, 2024 passed by the High Court of Orissa at Cuttack which has affirmed the conviction and sentence imposed by the Trial Court convicting him for committing the offences under Sections 302 and 201 of IPC, and sentenced him to undergo imprisonment for life and to pay a fine of Rs 10,000 and imprisonment for two years and to pay a fine of Rs 5,000 respectively for each of the offence.

The prosecution case was that at about 11 a.m. on April 04, 2016, informant’s son Akash Garadia along with Budhadeba Garadia and Susanta Kusulia and the appellant/accused had been to the river nearby the village to take bath. From there, the appellant/accused and the deceased went to the cashew field for collecting the cashew. The appellant/accused and the deceased did not return for long time, however, two others returned to the village.

The informant Kalia Garadia inquired about the whereabouts of his son from the two others who informed him that they asked the appellant/accused about the deceased to which he replied that the deceased will never return and if they disclose this fact to the co-villagers, he will kill them. On the next day, i.e. April 05, 2016, about 06.00 a.m. the informant went to the riverside in search of his son and found his dead body floating in the river. He lodged the FIR alleging that the appellant/accused has killed his son and threw his dead body in the river.

The Trial Court held the appellant-accused guilty, finding that the evidence on ‘last seen together’ and recovery of weapon together with motive were the circumstances which completed the chain of circumstantial evidence and were sufficient to hold the appellant/accused guilty for commission of murder and causing disappearance of evidence. The conviction and sentence imposed by the Trial Court was affirmed by the High Court.

Considering the appeal, the bench said, it was the settled law that in a case based on circumstantial evidence, the prosecution is obliged to prove each circumstance, taken cumulatively to form a chain so complete that there is no escape from the conclusion that within all human probabilities, crime was committed by the accused and none else. Further, the facts so proved should unerringly point towards the guilt of the accused.

The bench pointed out that this court in Ramanand Vs State of Himachal Pradesh (1981) has held that ‘perfect proof is seldom to be had in this imperfect world and absolute certainty is a myth’. Further, this court in a celebrated judgment in Sharad Birdhichand Sarda Vs State of Maharashtra (1984) has set down the golden rules in the cases basing circumstantial evidence which is to be proved by the prosecution.

Examining the evidence of prosecution witnesses, the bench noted, it emerged that when they were taking bath, other villagers were there on the bathing ghat, and that the appellant and the deceased had gone to collect the cashew nuts. However, when the appellant was inquired about the whereabouts of the deceased and he was confronted, he did not admit the guilt rather accompanied the informant in search of the deceased near the river and cashew jungle. This conduct of the appellant suggests that he did not run away from the village nor admitted his guilt as probably he had nothing to hide, the court said.

The witness of last seen stated that he saw the appellant and deceased going towards village Madhapadar at around 12 noon and after some time he saw the appellant returning alone and then asked him about the deceased to which he did not reply and after asking for three to four times, he replied that he had gone nearby village for some work and thereafter the appellant hurriedly took his bath and went away.

This witness claimed the appellant’s wife was a cousin of the deceased. After marriage, the appellant had gone to Kerala and did not return. When his wife fell ill, she was taken to the hospital by her relatives, the appellant returned from Kerala and suspected his wife’s illicit relations with a co villager and due to anger, he had killed Akash.

However, in cross examination, he admitted that the police had not recorded his statement under Section 161 Cr.P.C. Therefore, this fact about motive is narrated by him for the first time in court hence the same cannot be relied upon. Interestingly, the father of the deceased has not stated anything about the motive in his examination-in-chief. According to complainant, the appellant is his nephew being son of his brother-in-law. Thus, the appellant and the complainant were close relative, the bench noted.

The court also found that it was the case of the prosecution that the appellant neither admitted guilt nor got the weapon or dead body recovered at his instance. Even the chemical examination report was inconclusive although human blood was found on the shirt and on the stone, but the blood group was not matched.

The present is a case where except for the evidence of ‘last seen together’ there is no other incriminating material against the appellant, the bench noted.

The court relied upon Sujit Biswas Vs State of Assam (2013), which stated suspicion, howsoever strong, cannot substitute the proof and conviction is not permissible only on the basis of the suspicion.

It thus set aside the impugned conviction and sentence imposed by the High Court and the Trial Court and acquitted the appellant.

Case Title: Padman Bibhar vs State of Odisha

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