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CASE NO.: Appeal (crl.)  873 of 2004

PETITIONER: STATE OF GOA

RESPONDENT: SANJAY THAKRAN AND ANR

DATE OF JUDGMENT: 02/03/2007

BENCH: B.N. AGRAWAL & P.P. NAOLEKAR

JUDGMENT: JUDGMENT WITH

CRIMINAL APPEAL NO. 874 OF 2004

SUBHASH CHANDRA NANDA                    \005.. APPELLANT(S)       VERSUS

SANJAY THAKRAN AND ANR.                 ....RESPONDENT(S)

P.P. NAOLEKAR, J.

Aggrieved by the judgment and final order dated 30-09-2003 of  the High Court of Bombay at Goa whereby the accused  persons/respondents, namely, Sanjay Thakran (respondent no. 1/A- 1) and his wife Anjali Thakran (respondent no. 2/A-2) were acquitted  of the offences charged under Sections 120-B, 364, 302 and 392  read with Section 34 of the Indian Penal Code, 1860, these criminal  appeals have been preferred by the State of Goa and father of one of  the deceased persons.   Earlier, by the judgment delivered on 09-01- 2002, the Court of IInd Additional Sessions Judge, Panaji has  acquitted both the accused persons of all the abovementioned  charges levelled against them.  The relevant facts, as per the evidence adduced and the First  Information Report, are that on 26-02-1999, the deceased couple,  namely, Vikas Nanda (D-1, age 26 years) and Kavita Nanda @ Priya  Nanda (D-2, age 23 years), arrived in Goa from Mumbai for their  honeymoon and stayed in Hotel Seema at Ribandar.  On 27-02-1999,  the deceased couple went for sight-seeing at Ozran, Vagator with  P.W.13-Vincent, who was the car driver and had also taken them for  the sight-seeing trip a day earlier as well.  At about 2.30 p.m., D-1  told P.W.-13 that they had met some friends from Delhi and hence  P.W.-13 returned from there. P.W.30-Suhasini Govekar, who  operated a shack at Anjuna beach with her husband, mentioned that  on 27-02-1999, the accused couple and their children came to her  place in between 1.00-2.00 p.m. and then went to take bath. When  they returned back, the deceased couple accompanied them. The  accused couple was running a bar and the restaurant Iguana Miraj  and hotel Lalita Beach Resort in Goa.  P.W.11-Dinesh Adhikari, who  was servant of the respondents, saw the deceased couple at  respondents’ hotel 2 or 3 days preceding the festival of Holi in the  year 1999 at approximately 6.00-7.00 p.m. According to this  prosecution witness, A-1-Sanjay Thakran, D-1-Vikas Nanda and  P.W.14-Calvert were sitting outside the hotel and A-2-Anjali Thakran  was sitting with D-2-Priya Nanda inside a room in the hotel.  He saw  A-1-Sanjay Thakran and D-1-Vikas Nanda walking towards the beach  sometime after 9.00-9.30 p.m. and that was the last time when D-1

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was  seen  alive.  After sometime P.W.11 saw A-1-Sanjay Thakran,  A-2-Anjali Thakran and D-2-Priya  Nanda as they were walking away  from Iguana Miraj. Another prosecution witness, P.W.14-Calvert  Gonsalves also saw the deceased couple at the hotel of the accused  couple. As per P.W.6-Amit Banerjee, who was working as a  receptionist at Hotel Seema, D-2-Priya Nanda returned to Hotel  Seema without D-1 and along with A-1-Sanjay Thakran at about  11.30 p.m. She asked for the key of their room from P.W. 6. A-1- Sanjay Thakran helped her to carry the luggage from the Hotel room  as she checked out about 11.40 p.m.   A-2 did not come to the hotel  and remained seated in the white colour Maruti Car that had a Delhi  registration number on it.   D-2-Priya Nanda, A-1-Sanjay Thakran and  A-2-Anjali Thakran went away in that car and thus, D-2 was also last  seen alive in the company of the accused couple. On 28-02-1999, P.W.2-Charles Mills lodged a report at Anjuna  Police Station that a dead body of unknown female foreigner (later  identified as D-2) was found at the Vagator Beach. According to this  witness, who was staying near the beach, at around 7.30 a.m., he  was told by someone that a female body was floating in the seawater.  The deceased was wearing a blue skirt and a top. On the same day,  P.W.17-Fausto Afonso lodged report with Colva Police Station that a  dead body of unknown male foreigner (later identified as D-1) was  found at about 00.30 hours at the Benaulim Beach. The distance  between the Vagator Beach and Benaulim Beach is around 60  kilometers. As the deceased couple neither returned to Delhi as expected  by 01-03-1999 nor contacted P.W.33-Subhash Nanda i.e., father of  D-1, he called up P.W.4-A.C. Duggal to inquire about them.  Accordingly, P.W. 4-A.C. Duggal, who was uncle of D-1 and lived in  Mumbai, called up N. Murari, who was posted in Goa and worked in  the Union Bank of India with P.W.-4, to know about their whereabouts  on 01-03-1999.   N. Murari told P.W.-4 that they had already checked  out of the Hotel Seema.  Since the deceased couple did not reach   Mumbai as stipulated by P.W.-4 on 02-03-1999,  he again called up  N. Murari.  On  03-03-1999  at about 7.15 p.m., N. Murari informed  P.W.-4 that a dead body of male person with similar description to  that  of  Vikas  had  been  found and asked him to come to Goa.  P.W.-4 rushed to Goa and identified the dead body of D-1-Vikas  Nanda on 04-03-1999. On the same day, N. Murari lodged a missing  report [Exhibit No. 20] at Old Goa Police Station.  After identifying the  body of D-1-Vikas Nanda at morgue, P.W.-4 went to Seema Guest  House and made inquiries about the couple. The dead body of D-2  was also identified on 05-03-1999.   P.W.-4 lodged a complaint  [Exhibit No.21] on 05-03-1999 at Anjuna Police Station with P.W. 38-  Sub-Inspector Sandesh Chodankar. According to this complaint, on  04-03-1999, P.W.-4 was informed by Hotel Manager that D-2  checked out from hotel on 27-03-1999 at about 11.40 p.m. and  another person having short built, bald from front and having fair  complexion accompanied her. The complainant believed that since  the dead bodies of the couple had been found at places nearly 60  kilometers away from each other, the newly married couple must  have been lured by some disgruntled mischievous element, who had  killed them for their ornaments, as all the gold ornaments of the  deceased couple were found missing.  P.W.26-Dr. Silvano Dias Sapeco, who conducted the  postmortem [Exhibit No. 80] on the body of D-2 on 01-03-1999, found  the following ante-mortem injuries: 1.      Red bruise 20 cms. Diameter on left mid upper arm. 2.      Red bruise 1.5 cms. Diameter on right inner aspect of upper  third region of thigh. 3.      Red bruise 1.5 cms diameter on left mid thigh in inner aspect. 4.      Red bruise 1.25 cms. Diameter on right mid lower leg at calf  region. 5.      Red bruise 1.25 cms. Diameter on left mid lower leg at calf  region.

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and it was opined that these were caused by blunt weapons. Due to  the fact that the doctor, who initially conducted postmortem on body  of D-1-Vikas Nanda on 01-03-1999, had not preserved any viscera or  material, on 05-03-1999 a second postmortem [Exhibit No. 95] was  conducted by P.W.32-Dr. E.J. Rodrigues, which exposed the  following ante-mortem injuries: 1.      Abrasion reddish and fresh of 6 x 4.5 cms. Present on upper  outer part on right side face between outer orbital margin, 2  cms. in front of right tragus of ear and extending on outer part  of right cheek bone. No bruising underneath. 2.      Abrasion reddish and fresh of 2.5 x 1 cms. Placed vertically on  the ridge of nose. No bruising underneath. No injuries to alae of  nose. 3.      Abrasion reddish and fresh of 5 x 3 cms. on left side upper part  of face 2 cms. in front of left tragus of ear extending upto outer  orbital margin and also on outer part of left cheek bone. No  bruising underneath. 4.      Abrasion reddish and fresh of 0.5 x 0.5 cms., 1 cm. above outer  end of right eyebrow. 5.      Abrasion reddish and fresh of 0.5 x 0.5 cms., 1.5 cms. above  outer end of left eyebrow. 6.      Abrasion reddish and fresh of 3 x 2 cms., upper middle back of  right shoulder. 7.      Abrasion reddish and fresh of 2 x 1.5 cms., upper back of left  shoulder at acromial process region.

and it was opined that they were caused with blunt surface. The  postmortem reports of both the deceased persons have concluded  that death had occurred as a result of asphyxia due to drowning in  shallow beach water.  From their initial investigation, the Goa police found out about  the description of the accused couple and their children. The flat  belonging to the accused persons was sealed under the orders of a  Civil Court. P.W.-38, therefore, applied to the Judicial Magistrate, Ist   Class, Margoa for issuance of search warrant. The Judicial  Magistrate, Ist Class, Margoa directed that the bailiff of the Court  would accompany P.W.-38 and in the presence of two respectable  panchas from the locality, the seal of the court would be opened and  inventory of the movable articles and fixtures found in the flat should  be made. After the search, the flat should be resealed/locked and the  bailiff would file a report to the Court.   Accordingly on 17-12-1999,  the police conducted search of the flat of accused, which was located  at Sapna Residency, Colva.   During this search, P.W.-38 attached  the passports of the accused-respondents and their two children, two  visiting cards of P.W. 19-Subrato Padhi, a visiting card of Iguana  Restaurant and one laminated photograph. [House Search  Panchnama as Exhibit No. 13 and Report regarding Search Warrant  which was submitted to Judicial Magistrate, Ist Class, Margoa as  Exhibit No. 108]. The Court bailiff, who accompanied with P.W.-38  and other panch witnesses, prepared a list of movable articles of the  flat  [Exhibit No. 112]. The flat was resealed after the search was  over. On 30-01-2000, the accused persons were arrested in Agra by  P.W. 15- Police Inspector Navrang Singh, who was posted at police  station of Sadar Bazar, Agra.  P.W.-38 accompanied with Dy.  Superintendent of Police P.W.29-Arvind Gawas, arrived at Agra on  the same day.  P.W.-15 informed them that A-1-Sanjay Thakran  handed over a double barrel gun and A-2-Anjali Thakran took out and  handed over a single barrel 12-bore gun from the cupboard. During  the house search of the accused persons, police recovered a  churidhar set, a ladies purse and some newspapers containing  reports that were connected with investigation of the present case.  According to the prosecution story, the recovered materials were  identified by P.W.33-Subhash Nanda, father of Vikas and P.W.5-

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Kishen Valecha, brother of Priya as belonging to the deceased  couple. P.W.38-Sandesh Chodankar, Sub-Inspector interrogated the  accused persons and satisfied himself of their complicity in the crime.  On 31-01-2000, he further obtained transit remand and custody of the  accused couple. The accused were brought back to Goa on 01-02- 2000 and formally arrested in connection with the present case.  On 08-02-2000, as alleged by prosecution, during the  interrogation A-1-Sanjay Thakran disclosed to P.W. 38\026Sandesh  Chodankar about the fact that murder of the deceased couple was  committed by his wife and him and that the belongings of the  deceased couple were present in his flat.  On 11-02-2000, in  presence of Court bailiff-Peter Fernandes and other panch witnesses,  A-1 handed over jewellery from his flat B-2 F-3 at Sapna Residency,  Colva. The jewellery, which was handed over to police, consisted of  eight yellow metal bangles, one pair of ear-rings and one finger ring.  As has been alleged by the prosecution side, he also produced  clothes such as a white full-sleeves shirt, a saffron-coloured women’s  kameez with a cream-coloured salwar, a green-coloured saree with  blouse, a light cream-coloured silken kurta pyjama and a designer  black full-sleeves shirt, which belonged to the deceased couple.  During interrogation, on 13-02-2000, A-2-Anjali Thakran  allegedly disclosed [Exhibit No. 77] that she would point out the  goldsmith to whom she had sold the gold ornaments. As per the  directions of A-2-Anjali Thakran, a police party and panch witnesses  reached the jewellery shop of P.W. 12-Ulhas Lotlikar at Khareband  Margao. P.W.12-Ulhas Lotlikar produced two bangles bearing the  identification mark ’RK 22 KL’, weighing 23.5 grams. According to the  prosecution case, the said bangles bearing the identification mark  ’RK 22 KL’ were gifted to the newly wed couple on their marriage by  P.W.-33. The prosecution has alleged that A-2-Anjali Thakran sold  these bangles along with a necklace and a ring to the jewellery shop  run by P.W.-12. It has also been alleged by the prosecution that A-2- Anjali Thakran sold these jewellery on the pretext that as their  restaurant was not running well, they were in urgent need of money. The learned Sessions Judge, Panaji, as well as the High Court  on evaluation of the circumstantial evidence, came to the conclusion  that the prosecution has failed to prove involvement of accused  respondents in commission of the crime and acquitted them of all  charges.         Admittedly, the case of the prosecution is based on  circumstantial evidence as there is no evidence on record that any of  the witnesses, examined by the prosecution, have seen actual  commission of the crime.   Mr. Mahendra Anand, the learned senior  counsel  for the appellant(s), to prove the case against A-1-Sanjay  Thakran, has placed reliance on the following circumstances: the  recovery of ladies purse and salwar suit by police at Agra on  30.01.2000 and the recovery of jewellery and clothes made from the  flat of the accused persons in Goa on 11.02.2000 and the evidence of  seen together with the deceased couple before the actual incident by  P.W.30-Suhasini Govekar and evidence of P.W.11-Dinesh Adhikari,  P.W.14-Calvert Gonsalves and P.W.6-Amit Banerjee to the effect that  A-1 was accompanied with the deceased couple on 27.02.1999 and  that the deceased couple was last seen alive in his company.  As far  as the evidence against the respondent A-2-Anjali Thakran is  concerned, the learned senior counsel for the appellant(s) has relied  upon the aspect of recovery of ladies purse and salwar suit; the  recovery of two bangles bearing the identification mark ’RK 22 KL’ at  her instance  from the jewellery shop of P.W.12-Ulhas Lotlikar; and  the evidence of P.W.11- Dinesh Adhikari, P.W.14-Calvert Gonsalves   and P.W.6-Amit Banerjee, that Anjali was last seen in the company of  her husband with the deceased couple before the commission of the  crime.  The learned senior counsel for the appellant(s) has further  submitted that no explanation is forthcoming from the accused  respondents in the statement recorded under Section 313 of the  Code of Criminal Procedure, 1973 (Cr.P.C.) as to what has happened

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after they were seen in the company of the deceased couple, would  indicate involvement of accused respondents in commission of the  crime.  The learned senior counsel for the appellant(s) has then  pointed out that the chain of circumstances highlighted in the present  case clearly establishes the fact that the accused couple did not only  meet the deceased couple in Goa but they were the ones with whom  the deceased persons were last seen alive.  It has also been  contended that the recovery of ladies purse and salwar suit from the  house of accused couple at the time of their arrest in Agra on  30.01.2000; recovery of jewellery and clothes at the instance of A-1- Sanjay Thakran from the flat of accused persons in Goa on 11-02- 2000 and recovery of two bangles belonging to D-2-Priya Nanda  bearing the identification mark ’RK 22 KL’ at the instance of A-2-Anjali  Thakran from the jewellery shop of P.W.12-Ulhas Lotlikar on 13-02- 2000, further substantiate that the accused couple, in order to carve  away the belongings of the newly married couple, committed the  offence of murder. It has also been pointed out that the High Court  and the lower court have erred in (i) rejecting the evidence regarding  the recovery of incriminating materials and (ii) not appreciating the  key prosecution witnesses. On the other hand, late Shri R.K. Jain, the learned senior  counsel for the respondents, urged that the present matter before us,  is an appeal arising out of special leave petition under Article 136 of  the Constitution against concurrent orders of acquittal by the  Sessions Court and the High Court and, thus, merely because on  reappraisal of the evidence, the other view of the matter than taken  by the courts can be legitimately arrived at, would not be a sufficient  ground to interfere with an order of acquittal, unless this Court  reaches the conclusion that the entire approach of the courts below in  appreciating the evidence was patently illegal, erroneous or  unsustainable and that if, on reappraisal of the evidence, only one  view is possible, then alone the Court will exercise the jurisdiction in  appeal and will convict the acquitted accused persons.  It is submitted  that on consideration of the evidence on record, the courts below  have rightly reached the conclusion that the prosecution has failed to  prove the case beyond reasonable doubt of involvement of accused  respondents in commission of the crime of murder of the deceased  couple.   The prosecution case is based on the circumstantial evidence  and it is a well-settled proposition of law that when the case rests  upon circumstantial evidence, such evidence must satisfy the  following tests: (1)       The circumstances from which an inference of guilt  is sought to be drawn, must be cogently and firmly  established; (2)   those circumstances should be of a definite   tendency unerringly pointing towards guilt of the accused; (3)     the circumstances, taken cumulatively, should form  a chain so complete that there is no escape from the  conclusion that within all human probability the crime was  committed by the accused and none else; and (4)   the circumstantial evidence in order to sustain  conviction must be complete and incapable of explanation  of any other hypothesis than that of guilt of the accused  and such evidence should not only be consistent with the  guilt of the accused but should be inconsistent with his  innocence. [See : State of U.P. v. Satish, (2005) 3 SCC 114, Padala Veera  Reddy v. State of Andhra Pradesh and Others, 1989 Supp. (2)  SCC 706, Sharad Birdhichand Sarda v. State of Maharashtra,  (1984) 4 SCC 116, Gambhir v. State of Maharashtra, (1982) 2 SCC  351 and Hanumant Govind Nargundkar and Another v. State of  Madhya Pradesh, AIR 1952 SC 343]. By a series of decisions, this Court has laid down the  parameters of appreciation of evidence on record and jurisdiction and

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limitations of the appellate court, and while dealing with appeal  against order of acquittal this Court observed in Tota Singh and  Another v. State of Punjab, (1987) 2 SCC 529 as under : "6. \005  The jurisdiction of the appellate court in dealing  with an appeal against an order of acquittal is  circumscribed by the limitation that no interference is to  be made with the order of acquittal unless the approach  made by the lower court to the consideration of the  evidence in the case is vitiated by some manifest illegality  or the conclusion recorded by the court below is such  which could not have been possibly arrived at by any  court acting reasonably and judiciously and is, therefore,  liable to be characterised as perverse. Where two views  are possible on an appraisal of the evidence adduced in  the case and  the court below has taken a view which is a  plausible one, the appellate court cannot legally interfere  with an order of acquittal even if it is of the opinion that  the view taken by the court below on its consideration of  the evidence is erroneous."

Further, this Court has observed in Ramesh Babulal Doshi v. State  of Gujarat, (1996) 9 SCC 225:

"7. \005 This Court has repeatedly laid down that the mere  fact that a view other than the one taken by the trial court  can be legitimately arrived at by the appellate court on  reappraisal of the evidence cannot constitute a valid and  sufficient ground to interfere with an order of acquittal  unless it comes to the conclusion that the entire approach  of the trial court in dealing with the evidence was patently  illegal or the conclusions arrived at by it were wholly  untenable.  While sitting in judgment over an acquittal the  appellate court is first required to seek an answer to the  question whether the findings of the trial court are  palpably wrong, manifestly erroneous or demonstrably  unsustainable.  If the appellate court answers the above  question in the negative the order of acquittal is not to be  disturbed. Conversely, if the appellate court holds, for  reasons to be recorded, that the order of acquittal cannot  at all be sustained in view of any of the above infirmities it  can then - and then only - reappraise the evidence to  arrive at its own conclusions.  \005\005"

and in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180:

"7.   There is no embargo on the appellate court reviewing  the evidence upon which an order of acquittal is based.    Generally, the order of acquittal shall not be interfered  with because the presumption of innocence of the  accused is further strengthened by acquittal.  The golden  thread which runs through the web of administration of  justice in criminal cases is that if two views are possible  on the evidence adduced in the case, one pointing to the  guilt of the accused and the other to his innocence, the  view which is favourable to the accused should be  adopted.   The paramount consideration of the court is to  ensure that miscarriage of justice is prevented.  A  miscarriage of justice which may arise from acquittal of  the guilty is no less than from the conviction of an  innocent.  In a case where admissible evidence is  ignored, a duty is cast upon the appellate court to re- appreciate the evidence in a case where the accused has  been acquitted, for the purpose of ascertaining as to  whether any of the accused committed any offence or not.  

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{See Bhagwan Singh v. State of M.P., (2002) 4 SCC  85}.  The principle to be followed by appellate court  considering the appeal against the judgment of acquittal  is to interfere only when there are compelling and  substantial reasons for doing so.  If the impugned  judgment is clearly unreasonable, it is a compelling  reason for interference.  These aspects were highlighted  by this Court in Shivaji Sahabrao Bobade v. State of  Maharashtra, (1973) 2 SCC 793, Ramesh Babulal  Doshi v. State of Gujarat, (1996) 9 SCC 225 and  Jaswant Singh v. State of Haryana, (2000) 4 SCC 484."

From the aforesaid decisions, it is apparent that while  exercising the powers in appeal against the order of acquittal the  court of appeal would not ordinarily interfere with the order of  acquittal unless the approach of the lower court is vitiated by some  manifest illegality and the conclusion arrived at would not be arrived  at by any reasonable person and, therefore, the decision is to be  characterized as perverse.  Merely because two views are possible,  the court of appeal would not take the view which would upset the  judgment delivered by the court below.  However, the appellate court  has a power to review the evidence if it is of the view that the view  arrived at by the court below is perverse and the court has committed  a manifest error of law and ignored the material evidence on record.   A  duty  is  cast upon the appellate court, in such circumstances, to  re-appreciate the evidence to arrive at a just decision on the basis of  material placed on record to find out whether any of the accused is  connected with commission of the crime he is charged with.   In the light of the aforesaid principles laid down, we shall  consider the evidence placed on record to find out whether the courts  below have committed any error in dealing with the evidence, which  can be said to be patently illegal, or that the conclusion arrived at is  wholly untenable, calling for interference by us. Even before the arrest of the accused couple, the flat of the  accused persons situated at Goa was searched on 17.12.1999 in the  presence of P.W.39-Mariono Pereiera, who was the court bailiff.  The  court bailiff accompanied this search party as the flat was sealed  under the orders of the civil court.  The Judicial Magistrate, Ist Class,  Margao, had passed an order that the bailiff of the court would  accompany P.W.-38, police officer, and in the presence of two panch  witnesses, the seal of the court on the lock of the flat would be  opened and inventory of movable articles and fixtures found in the flat  should be made.  The Judicial Magistrate, Margao also directed that  after the search, the flat should be re-sealed/locked and the bailiff  would file a report in the court.  In his cross-examination, P.W.-39  admitted that the court had asked to prepare a list of all movable  items of the flat and not only valuables, and he committed a mistake  as he did not mention all articles found in the flat in the inventory and,  therefore, there was no mention of any jewellery in the list prepared  by him.  As per this witness, when the search was made on  17.12.1999, there were no gold ornaments in the said flat and that  there were various articles, which appeared like that of gold.  A box  full of such articles was kept in the suitcase.  According to P.W.1-  Erecko Fernandez, a panch witness, the door of the flat was locked  with three locks and there was also a metal chain around the lock.   The locks were required to be cut with the help of a hacksaw blade.   But since the door also was latched from inside, it could not be  opened.  They noticed a small window with a broken glass pane and  one of the police personnel who accompanied them, with the help of  a screw driver, removed the screws of the grill of the window.  One of  the police personnel went inside the flat and opened the latch and  thereafter all of them entered into the flat.  They noticed some  suitcases in the flat and on opening the same some clothes were  found and jewellery was found inside the cupboard.  In his cross-

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examination, this witness very specifically stated that the said window  was wide enough to allow a person to gain entry in the flat.  P.W.38-  Sandesh Chodankar, who led the police party for the search  conducted on 17.12.1999, had found lot of clothes and jewellery  of  yellow metal, lot of belongings of shack, electronic items and  household items in the flat.  He has explained that he did not attach  any valuable or other articles as he was not sure to whom those  things belonged and also as there was a civil dispute pending in the  court.         The panchnama of the search made on 17.12.1999 (Exhibit  No.13) mentioned that after conducting the search, the door was  closed and one old and two new locks were put on the door and they  were sealed by a one-rupee coin as the court seal was not available.   The court bailiff mentioned that he sealed three locks after the search  was conducted by P.W.-38 on 17.12.1999.           After the arrest of A-1, this flat was once again searched on  11.2.2000 in the presence of another court bailiff Peter Fernandez  and other panch witnesses as A1 allegedly confessed about the  crime on 08.02.2000.  According to the prosecution version, he  agreed to handover the incriminating articles to the police.  P.W.8-  Sanjay Naik, a witness to the confession of A-1, was also present as  panch witness when A-1 had allegedly handed over jewellery items,  i.e., eight yellow metal bangles, one pair of ear-rings and one finger  ring and clothes such as a white full-sleeves shirt, a saffron-coloured  women’s kameez with cream-coloured salwar, a green-coloured  saree with blouses, a light cream-coloured silken kurta pyjama and a  designer black full-sleeves shirt, on the search of the flat of the  accused persons in Goa on 11.02.2000.  This witness further said  that the flat was locked and when the bailiff of the court tried to open  the lock after breaking the seal it did not open and the key got  damaged in the process of opening of the lock and the lock was  opened by using a wire.  P.W.-38 mentioned that on 11.02.2000  the  flat was found sealed and was opened in the presence of the bailiff  and panch witnesses.  The panchnama of recovery made on  11.02.2000 (Exhibit No.34) mentioned that the bailiff of the court  removed the seals and tried to open the locks with keys.  According  to this panchnama,  one iron rod was used to open up the locks but  instead of the locks,  the latch of the door got broken.  When the  chain of latch was removed, it was found that the door was locked  due to body lock.   Since the door was locked, the grills of the window  were removed and after removing the broken glasses, one person  was lowered and finally entry was made in the flat.  The courts below  have rejected the evidence of  recovery made on 11.02.2000 and  they have found that the first list of the articles found in the flat as  prepared on 17.12.1999 did not mention any box or gold-like  materials/artificial jewellery or any other gold article or any clothes in  the list of movable articles of the flat (Exhibit No.112).  How is it that  the articles were found in the subsequent search from the same flat  which  was locked and sealed?  The panchnama of the flat searched  on 17.12.1999 though mentioned about three big suitcases full of  clothes and artificial jewellery, no details, whatsoever, regarding  those articles were made and without any reference as to the quality  of golden colour ornaments, P.W.-38 considered them as artificial  jewellery.  On both occasions when the search was made in the flat, it  was not sealed properly with the court seal and, instead thereof, one-  rupee and five-rupee coins were used.  The entry in the flat on both  occasions, i.e. on 17.12.1999 and 11.02.2000, was made through the  window which shows that this flat was easily accessible although the  seal of the court was put on it,   without interfering with the seal after  removing the grill of the window.  There was material contradiction in  the panchnama of flat search made on 11.02.2000 and evidence of  P.W.-8 and P.W.-38 with respect to the way in which the entry was  made to the flat of the accused persons on 11.02.2000.  When at the  first instance no jewellery was found inside the flat, how it was  recovered on the subsequent search?  The search and recovery of

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articles by the police on 11.02.2000 does not inspire confidence as  the flat was easily accessible, without disturbing the lock and planting  of the articles by the police cannot totally be ruled out.  We have  carefully gone through the evidence of the witnesses and the  panchnamas and list of seized articles and have found that reasoning  adopted by the courts below in discarding the evidence of seizure of  articles from the flat of the accused persons cannot be said to be  without any basis.   On the information received by the police, the accused persons  were arrested at Agra and at the time of arrest on 30.01.2000, as per  the prosecution, certain incriminating articles were seized from the  accused couple at Agra.  The police recovered the ladies purse and  salwar suit from A-2-Anjali Thakran.  These articles were put for Test  Identification which was conducted in the presence of P.W.24-  Vinayak S.N. Alornekar, Special Judicial Magistrate on 10.02.2000.    During this T.I. Parade, P.W.5-Kishen Valecha, brother of deceased  Priya Nanda, was unable to identify the salwar suit, but he had  identified the ladies purse belonged to his sister and the reason given  for identifying it was that she was carrying the same purse while  leaving for Vaishnodevi  after marriage.  Another witness P.W.33-  Subhash Nanda, identified both purse and salwar kameez as  belonging to his daughter-in-law, Priya Nanda.  In his cross-  examination, P.W.-33 has mentioned that he identified the salwar  kameez only from the colour and design and not from any other  identification mark.  He has admitted that same salwar suit and purse  are available in the market.  P.W.-5 has also admitted in his cross- examination that there was no distinctive mark on the purse.    Identification of these articles have been disbelieved by the courts  below and, in our opinion, rightly so.  When the persons identified it,  they did not have sufficient opportunity to see these articles used by  the deceased for a long duration, and when the articles do not carry  any distinctive marks, on the basis of which the articles can be  distinguished from the similar articles which are easily accessible and  available in the market, identification of the articles by the witnesses  would be difficult to be believed.  The recovery of these articles from  the accused in the absence of their identification as belonging to the  deceased, does not take the prosecution case any further.  The learned senior counsel for the appellant(s) Mr. Mahendra  Anand has placed reliance on the recovery   of  two  bangles   which    had   the  identification mark   ’RK 22 KL’, weighing approximately  23.5. grams,  from the shop of P.W.12-Ulhas Lotlikar at the instance  of A-2.  On 13.02.2000, during interrogation she disclosed that she  would point out the goldsmith to whom the gold ornaments were sold.   Accordingly, as per her directions, police party and panch witnesses  approached the jewellery shop of P.W.-12 at Khareband, Margao.  In  presence of panchas, P.W.-12 produced the two bangles bearing  identification mark ’RK 22 KL’ , weighing 23.5. grams, before the  police party.   As per this witness, the accused came to his shop and  sold two bangles, a necklace and a gold finger ring.  When he asked  for the reason as to why she was selling these ornaments, A-2 told  him that their restaurant was not running well and hence, they were in  urgent need of money.  He paid Rs.12,400/-, Rs. 3,200/- and  Rs.1,200/- respectively,  for two bangles, a necklace and a gold finger  ring.  He did not melt the bangles since they were in good condition.  As per the prosecution, these gold ornaments belonged to deceased  Priya Nanda.  During cross-examination, P.W.-12 volunteered to  produce the book where he maintained the record of sale of these  ornaments.    However, inspite of ample opportunity given to him to  produce the book, he did not do so.  In his cross-examination, he   admitted that a day before recovery, A-2 was shown to him in the  office of Dy. Superintendent of Police, Mapusa.  That apart, the police  had not recovered the other ornaments alleged to have been sold by  the accused to P.W.-12 as it is said that he had melted those  ornaments.  It is highly improbable that P.W.-12 would have retained  the bangles, which have the distinctive mark over them and would

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have melted other ornaments with no distinctive marks on them.  The  whole purpose and authenticity of the recovery of these ornaments  have been lost when the witness has admitted that a day ahead of  the recovery the accused was shown to him in the police station.         Another piece of evidence, on which the prosecution strongly  relied, is of identification of the accused persons in the Test  Identification parade on 07.02.2000.  P.W.24-VSN Alornekar, Special  Judicial Magistrate, Tiswadi and Bardez Talukas, conducted Test  Identification parade, wherein P.W.6-Amit Banerjee, P.W.30-Suhasini  Govekar and P.W.7- Ganpat , were the identifying  witnesses.  P.W.- 6 had identified both the accused persons as the persons who came  with D-2 Priya Nanda to Hotel Seema on the night of 27.02.1999.    The trial court as well as the High Court have found certain  irregularities in the manner of conducting the identification parade.  A- 1 and A-2 were placed in the same identification parade with 6  dummies each, which was contrary to Paragraph 16(2)(h) of the  Criminal Manual issued by the High Court of Bombay, which  mentioned that : "if two suspects were not similar in appearance or where there  were more than two suspects, separate parade should be held  using different person on each parade." We have gone through the original record of the memorandum of  identification parade (Exhibit No.70) and have found that P.W.-24 has  mentioned as follows in this memorandum : "The dummy accused who are put in the parade I.e., 6 ladies  and 6 gents are more or less of the same features and age  groups as that of the accused couple to be put in the parade.   They are also more or less the same height and status in  appearance as that of the accused." As far as case of A-1 is concerned, who was around 38 years old at  that time, 5 of the dummy persons belonged to age-group of 23-27  and another dummy was of 40 years old.  Hence, there is a serious  doubt regarding the fairness of the test identification.         We have now to consider the veracity and authenticity of the  evidence led by the prosecution to show that the accused persons  were seen with the deceased couple in Goa moving around together  and that they were the same persons who had been last seen  together by the witnesses with the deceased couple, and if so, what  shall be the resultant inference which can be drawn from the facts  proved in the surrounding circumstances.         P.W.-30 was examined to prove the acquaintance of the  accused persons with the deceased couple prior to the date of  incident.  As per P.W.-30, on 26.02.1999 the accused couple and  their children came to her shack which was located at Anjuna Beach.   A-1 approached P.W.-30 and told her that she was looking pretty and  that he would give her work and would take her on ship and would  give her whatever she wanted. He had also made enquiries whether  the ornaments which she was wearing were real or artificial and that  what was her bank balance.  On 27.02.1999, the accused couple and  their children came to her shack  between 1 and 2 p.m. and went to  take bath on the beach.  When they returned from the beach, they  were accompanied by a newly married couple.  P.W.-30 had a talk  with D-2-Priya Nanda, who was wearing the reddish-coloured  bangles and, accordingly, she assumed that they were newly married  couple.  The newly married lady, who had come with the accused  lady, changed her clothes and wore a blue-coloured skirt and blouse.   After having lunch at her shack, the two couples and the children  went away.  About a month later, the police showed her two or three  photographs and asked her to identify the persons in the  photographs.  She identified D-1-Vikas Nanda and D-2-Priya Nanda,  as the newly married couple, who had come to her shack on  27.02.1999 along with the accused couple.  She also identified  articles, blue skirt and blouse, to be belongings of deceased Priya  Nanda.  The evidence of this witness of remembering the persons  after a month when no particular incident was mentioned by her for

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remembering them, after a lapse of time, appears to be unnatural,  particularly so, when she was running a shack at a beach where  hundreds of persons were visiting.  The evidence of this witness of  the accused approaching her and making enquiries about the value  of the ornaments and her bank balance in the first meeting, does not  inspire confidence.  Apart from this, the witness has failed to identify  any of the accused persons in the identification parade conducted on  07.02.2000.  That apart, in the cross-examination, this witness said  that the children accompanying the accused were in the age group of  20-21 years whereas it has come in evidence that children of the  accused couple were a boy and a girl, aged about 12 years and 6  years respectively.   The prosecution examined P.W.14-Calvert Gonsalves to prove  that he had seen the deceased couple and accused couple at Iguana  Miraj Restaurant.  As per this witness, he used to meet the accused  persons at Iguana Restaurant as also at Lalita Beach Resort.  The  accused’s children were a boy and a girl.  The boy was about 12  years of age and the girl was about 6 years of age.  He was  introduced by A-1 to one Vikas Nanda (D-1) on the evening of  27.02.1999, while D-1 was sitting beside A-1 outside Iguana  Restaurant.  He was also told by A-1 that D-1 was his friend from  Delhi and had come to Goa for his honeymoon.  It was also informed  to him by A-1 that the wife of D-1 was inside Iguana Restaurant.   The  witness deposed that there was one AC room in the Restaurant  containing bedroom, TV, etc. which was used by A-1.  D-1 told him  that his wife was in the AC room alongwith A-2.  The name of the wife  of D-1 was told to him as Priya.  D-1 told him that his wife was in the  company of A-2.  D-1, A-1 and he talked for about one-and-a-half  hours.  After that, A-1 told him that he and D-1 were going to disco  and he left for his home.  The time was at about 9.30 p.m.  From the  statement of this witness, it is apparent that at the night of  27.02.1999, he himself had not seen A-2 and D-2 sitting in the room  at Iguana Restaurant.   This witness further proved the fact that till  9.30 p.m. on 27.02.1999, A-1 was seen in the company of D-1 when  he left them at Iguana Restaurant. P.W.11-Dinesh Adhikari, who was working as a domestic help  in the bar and restaurant of Iguana Miraj and Lalita Beach Resort,  deposed that the accused were running a hotel at Sernabhati Colva  known as Iguana Miraj which was a bar and restaurant and they were  also running a hotel besides the said restaurant and the name of that  hotel was Lalita Beach Resort.  He knew the accused persons right  from the days he used to work for them in Haryana (Gurgaon) and  thereafter he joined them in Goa.  Some time in June 1999, the police  had shown the photograph of a lady and a gent and asked him  whether he could identify anyone of them.  He told the police that he  could identify the persons in the photograph.  He identified the  persons from the photographs and said that he had seen those  persons 2 to 3 days prior to Holi of the year 1999 in the hotel of the  accused.  They came to the hotel at about 6.00 to 7.00 p.m.  He saw  that A-1, the gentleman in the photograph, and one person named  Calvert were sitting outside the hotel while A-2 and the lady in the  photograph were sitting inside the hotel.   He was asked to bring a  bag from a white colour Maruti car when they had come to the hotel  in the evening.  After some time, A-1 and the man from the  photograph started walking in the direction of the beach and after  about 30 to 45 minutes he saw A-1 alone while A-2 was sitting with  the lady in the photograph.  He further deposed that although he did  not enter the room but he saw A-2 and D-2 sitting in the bedroom  through the glass fixed to the bedroom door.  In his cross- examination, this witness deposed that the beach is at a distance of  about 200 to 300 metres from Iguana Miraj Hotel.  A-1 and D-1 went  to the beach at around 9.30 to 10.00 p.m. and thereafter he went to  his living quarter.  When he came back, he saw only A-1 in the hotel.   He was not sure at what time the accused couple left with the lady in  the photograph from Iquana Miraj Hotel.  From the statement of this

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witness, it is apparent that A-2 and D-2 were sitting in the hotel room  and it was only A-1 and D-1 who left towards the beach and after 30  to 45 minutes only A-1 returned and thereafter A-1 and A-2 along with  D-2 left the hotel.  P.W.6-Amit Banerjee, who was working as the Receptionist of   Hotel Seema where the deceased couple stayed when they came to  Goa, deposed that on 26.02.1999, D-1 and his wife D-2 had come to  the hotel.  They were provided a room which was reserved for the  Union Bank of India as its holiday home.  Mr. A.C. Duggal, General  Manager of the Union Bank of India had informed him on phone that  these guests were coming to the hotel and he should take care of  them.  On 27.02.1999 at about 2330 hours, D-2 came alone and  asked for the room key and told him that she was checking out of the  hotel.  D-1-Vikas Nanda, the husband of D-2-Priya Nanda, was not  along with her.   He asked her why she was checking out at that odd  time.  At that, she informed that she had met some friends from Delhi  and that she was going to join them.  D-2 went to her room and he  went to the reception area where the security guard was on duty.  He  asked the security guard as to how she had come to the hotel.  The  guard informed him that the guest had come in a car along with a  man who had followed her to the room.  He had noticed a white  colour 800CC Maruti car parked outside the gate of the hotel and one  lady with short hair was sitting on the rear seat.  He noticed her for a  minute or two.   D-2 returned to the reception from her room within 15  minutes and A-1 was carrying the luggage.  She settled the bill and  thereafter left the hotel.  In his cross-examination, this witness  mentioned that when at reception counter D-2 was making the  payment, he saw A-1 who passed along with the luggage putting his  head down.   In the Test Identification Parade on 07.02.2000, this  witness identified A-1 as the person who came along with D-2 on  27.02.1999 when she checked out of the hotel and identified A-2 as  the same lady who was sitting in the Maruti car on 27.02.1999.  He  stated that he did not find anything abnormal about the departure  of  D-2 and behaviour of D-2 at that time was normal. From the  statement of this witness, it appears that he had merely a fleeting  glance of  A-2 sitting in the parked car and thus he had described her  as the lady with a short hair.  Although in the test identification parade  conducted after more than 11 months he identified both the accused,  but when the police recorded his statement on 07.03.1999 in Hotel  Seema he had not given the description of the accused persons to  the police to be the persons who came to his hotel along with D-2.   The witness admitted that in the hotel register the check-out timing  column was blank.  Therefore, the record produced does not indicate  the timing of departure of D-2 from Hotel Seema.  The prosecution  has also not examined the guard of the hotel to identify A-2 to be the  person who was sitting in the car.    Before we analyse the evidence of P.W.11-Dinesh Adhikari,  who was working as a domestic help in the bar and restaurant   Iguana Miraj, P.W.14-Calvert Gonsalves, who was said to be in the  company of A-1 and D-1 on the evening of 27.02.1999 outside the  lounge of the restaurant and P.W.6-Amit Banerjee, who was working  as Receptionist of Hotel Seema, we would refer to certain decisions  of this Court on the point of ‘last seen together’.  It is a settled rule of  criminal jurisprudence that suspicion, however grave, cannot be  substituted for a proof and the courts shall take utmost precaution in  finding an accused guilty only on the basis of circumstantial evidence.    This Court has applied the above-mentioned general principle with  reference to the principle of last seen together in Bodh Raj alias  Bodha & Ors. v. State of Jammu and Kashmir, (2002) 8 SCC 45  as under:

"31.   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

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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.  \005\005.."      [See also : State of U.P. v. Satish, JT 2005(2) SC 153 = (2005) 3  SCC 114 (para 22) and Ramreddy Rajeshkhanna Reddy & Anr. v.  State of Andhra Pradesh, JT 2006 (4) SC 16 (para 29)]. In Ramreddy Rajeshkhanna Reddy (supra), this Court further  opined that even in the cases where time gap between the point of  time when the accused and the deceased were last seen alive and  when the deceased was found dead is too small that possibility of any  person other than the accused being the author of the crime becomes  impossible, the courts should look for some corroboration.             

In Jaswant Gir v. State of Punjab, (2005) 12 SCC 438, it was  observed that:  "5.    \005  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  PW 14  in  this regard is  believed.  \005.."

       From the principle laid down by this Court, the circumstance of  last-seen together would normally be taken into consideration for  finding the accused guilty of the offence charged with when it is  established by the prosecution that the time gap between the point of  time when the accused and the deceased were found together alive  and when the deceased was found dead is so small that possibility of  any other person being with the deceased could completely be ruled  out.   The time gap between the accused persons seen in the  company of the deceased and the detection of the crime would be a  material consideration for appreciation of the evidence and placing  reliance on it as a circumstance against the accused.  But, in all  cases, it cannot be said that the evidence of last seen together is to  be rejected merely because the time gap between the accused  persons and the deceased last seen together and the crime coming  to light is after a considerable long duration.  There can be no fixed or  straight jacket formula for the duration of time gap in this regard and it  would depend upon the evidence led by the prosecution to remove  the possibility of any other person meeting the deceased in the  intervening period, that is to say, if the prosecution is able to lead  such an evidence that likelihood of any person other than the  accused, being the author the crime, becomes impossible, then the  evidence of circumstance of last seen together, although there is long  duration of time, can be considered as one of the circumstances in  the chain of circumstances to prove the guilt against such accused  persons.  Hence, if the prosecution proves that in the light of the facts  and circumstances of the case, there was no possibility of any other  person meeting or approaching the deceased at the place of incident  or before the commission of the crime, in the intervening period, the  proof of last seen together would be relevant evidence.  For instance,  if it can be demonstrated by showing that the accused persons were  in exclusive possession of the place where the incident occurred or  where they were last seen together with the deceased, and there was  no possibility of any intrusion to that place by any third party, then a  relatively wider time gap would not affect the prosecution case.  

       We will first consider the applicability of the last seen together  doctrine with respect to the murder of D-1-Vikas Nanda.  According to

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P.W.14-Calvert Gonsalves, A-1 and D-1 were present outside the  Hotel Iguana Miraj at around 9.30 p.m. and as told to him by D-1, A-2  and D-2 were sitting inside one of the rooms of the hotel.  P.W.11-  Dinesh Adhikari has also stated that after serving drinks to A-1, P.W.- 14 and D-1, he went away.  He returned to the hotel at around 9.00- 9.30 p.m. and found that only A-1 and D-1 were sitting outside the  hotel and P.W.-14 had gone away.  He has also mentioned that A-2  and D-2 were sitting inside a room of the hotel.  According to P.W.- 11, A-1 and D-1 started walking towards the beach after some time  when he saw them sitting together at around 9.00-9.30 p.m.  After  about 30 to 45 minutes, he saw A-1 alone in the hotel.  According to  the prosecution version, A-1 murdered D-1 by drowning him in the  shallow beach water.  However, it is highly improbable that A-1, who  at the relevant  time was in his late 30s, was able to overpower D-1  who was not only well-built but also about 10 years younger and taller  than him.  We have also noticed that when the dead body of D-1 was  recovered, it had no clothes except an undergarment.  It is highly  unlikely that a single person not only forcefully drowned the deceased  D-1 in the shallow beach water but also forced him to take out all the  clothes and ornaments which he was wearing at that time.   The post- mortem report also does not mention any serious injury on any of the  vital parts of D-1 to support the prosecution version.  It is clear from  the deposition of P.W.-11 that A-1 went along with D-1.  P.W.-14 has  also stated that A-2 and D-2 were sitting inside a room of the hotel.   From this evidence, it is clear that A-2 had no role whatsoever to play  with reference to the murder of D-1-Vikas Nanda, especially when the  prosecution has not been able to produce any material or evidence to  establish the fact that they either pre-planned a plot or conspired with  each other to murder the deceased couple to carve away their  valuable materials.  We have also not found any other link in the  chain  of circumstances to conclusively establish that A-1 murdered  D-1 or A-2 played any role in assisting him to murder D-1.  Even if we  believe the evidence of P.W.-11 that he saw D-1 in the company of A- 1 walking towards the beach and thereafter saw A-1 returning alone  after 30 to 45 minutes, there has been a time gap of about 2 < hours  when A-1 and D-1 were last seen together and when the dead body  of D-1 was found at around 00.30 a.m. at the Benaulim Beach.  No  evidence was led by the prosecution to prove the fact that there was  no possibility of any other person approaching D-1 on the beach  which is a public place, during the intervening period when A-1 was  last seen with the deceased and when the crime was detected.

       We shall now weigh the last seen doctrine with respect to D-2-  Priya Nanda.  According to P.W.-11, after about 30 to 45 minutes  when he saw A-1 and D-1 walking towards the beach, he had seen  A-1 alone while A-2 was sitting with D-2 in the hotel.  After some time,  he saw the accused persons and D-2 walking away from Iguana Miraj  Hotel.  We can safely assume that P.W.-11 saw both the accused  persons along with D-2 latest by around 10.30 -11.00 p.m.  P.W.-6  Amit Banerjee had only a momentary glance of the lady sitting in the  Maruti car who, according to the prosecution, came to Hotel Seema  on 27.02.1999 with D-2 with a male person allegedly A-1.  P.W.-6 has  mentioned that the guard of the hotel had an opportunity to see the  persons who came along with D-2.  However, the prosecution chose  not to examine the guard to identify either A-1 or A-2.  It is difficult to  believe P.W.-6 that he had seen A-2 sitting in the car when he had  got an opportunity to look at her for merely one to two minutes.   In  his statement, he has described her as a lady with short hair.  He has  not given any description indicating that he had seen somebody  sitting in the car whose  face was visible from one side.  Even when  he was examined by the police, he had not described the features of  A-2.  In the absence of any other supporting material on record, it will  not be possible to believe the statement of P.W.-6 that he had seen  A-2 sitting in the car on the night of 27.02.1999 to establish the fact  that when D-2 left the hotel she accompanied A-2.  Similarly, with

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respect to A-1, P.W.-6 who had  an opportunity to see A-1 for the first  time for a very short duration to recognize him to be a person who  accompanied D-2 to Hotel Seema on the night of 27.2.1999, he had  only a fleeting glance of male person who came with D-2 as he was  busy in settling the account with her.    That apart, the dead body of  D-2 was found at around 7.30 a.m. on 28.02.1999 at Vagator Beach,  around 60 kms. from the beach where the dead body of D-1 was  recovered and quite a long distance from Hotel Seema.  Hence, there  has been a considerable time gap of approximately 8 = hours when  D-2 was last seen alive with the accused couple.  There being a  considerable time gap between the persons seen together and the  proximate time of crime, the circumstance of last seen together, even  if proved, cannot clinchingly fasten the guilt on the accused.          It is urged by Mr. Mahendra Anand, the learned senior counsel  for the appellant(s), that the accused have not explained as to in what  circumstances the victims suffered the death in their statements  under Section 313 Cr.P.C. and  thus would be held to be liable for  homicide.  The learned senior counsel for the appellant(s) placed  reliance on the following observations of this Court made in Amit  alias Ammu v. State of Maharashtra (2003) 8 SCC 93 : "9. The learned counsel for the appellant has placed  reliance on the decision of this Court by a Bench of which  one of us (Justice Brijesh Kumar) was a member in  Mohibur Rahman v. State of Assam, (2002) 6 SCC 715  for the proposition that the circumstance of last seen does  not by itself necessarily lead to the inference that it was  the accused who committed the crime. It depends upon  the facts of each case.  In the decision relied upon it has  been observed that there may be cases where, on  account of close proximity of place and time the factum of  death, a rational mind may be persuaded to reach an  irresistible conclusion that either the accused should  explain how and in what circumstances the victim  suffered the death or should own the liability for the  homicide. The present is a case to which the observation  as aforesaid and the principle laid squarely applies and  the circumstances of the case cast a heavy responsibility  on the appellant to explain and in absence thereof suffer  the conviction.  Those circumstances have already been  noticed, in which case such an irresistible conclusion can  be reached will depend on the facts of each case. Here it  has been established that the death took place on 28th  March between 3 and 4 p.m.  It is just about that much  time that the appellant and the deceased were last seen  by PW 1 and PW 11.   No explanation has been offered in  the statement by the appellant recorded under Section  313 Cr.PC. His defence is of complete denial. In our view,  the conviction for offence under Sections 302 and 376  has been rightly recorded by the Court of Session and  affirmed by the High Court."

We have noticed the decision.  However, the circumstances in  the present case are not similar to the case where the event of the  last seen together has very close proximity with the time and place of  the commission of the crime and other circumstances also favour the  hypothesis of guilt and consequently the fact that no explanation or  false explanation offered by the accused was taken as a link in the  chain of circumstances.  [See also : Birbal v. State of M.P., (2000)  10 SCC 212; Raju v. State of Haryana, (2001) 9 SCC 50; and Babu  S/o Raveendran v. Babu S/o Bahuleyan and Another (2003) 7  SCC 37].  Thus, in the circumstances of the case, the accused  persons not giving any explanation in their examination under Section  313, Cr.P.C. could not be taken to be a circumstance pointing  towards irresistible conclusion that they are involved in the  commission of the crime.

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In the light of the factors that evidence regarding the recovery  of the incriminating materials from the accused persons has been  discarded; that there has been sufficient time gap between the  instances when the accused persons were last seen together with the  deceased persons; and in the absence of any other corroborative  piece of evidence to complete the chain of circumstances to fasten  the guilt on the accused couple, we are of the opinion that the  accused have been rightly given the benefit of doubt by the courts  below.  We have found that the finding of the High Court that the  chain of circumstances  is  not complete to conclusively establish that  either A-1 or A-2 alone or with the common intention of each other  have committed the dreadful crime of murder of newly married  couple,  is correct and merely suspicion, however grave, cannot  replace the weight attached to the evidence.  Accordingly, we order  for dismissal of the appeals.