Importance Of Last-Seen Together Evidence Can’t Be Over Emphasized: Rajasthan High Court Acquits Men Who Were Awarded Death Penalty In Murder Case

The Rajasthan High Court has acquitted two men who were awarded death sentence in a murder case.

A Reference was registered based on the communication from the Additional Sessions Judge (Atrocities against Women cases), Bhilwara for confirmation of the sentence of death awarded to the accused persons.

A Division Bench comprising Justice Shree Chandrashekhar and Justice Chandra Shekhar Sharma observed, “The importance of last-seen-together evidence cannot be over emphasized in a criminal trial as this by itself is not sufficient to record conviction of an accused. It is quite a settled proposition in a law that before onus shifts on the accused by operation of section 106 of the Evidence Act it must be held that the prosecution has established a prima facie case against the accused.”

The Bench elucidated that like in every criminal trial, to prove the charge under Sections 364, 302, and 201 read with Section 34 of the Indian Penal Code, 1860 (IPC), the prosecution must lead cogent and consistent evidence establishing complicity of the accused in the occurrence.

Senior Advocate Vineet Jain appeared for the Appellants while AAG Deepak Choudhary appeared for the Respondent.

Factual Background

The Appellants-accused preferred a Criminal Appeal to lay a challenge to the Judgment of conviction under Sections 364, 302, and 201 read with Section 34 of the IPC delivered on July 30, 2022 and the Order of sentence passed against them on August 6, 2022. The Additional Sessions Judge arrived at a conclusion that the the aggravating circumstances against the Appellants outweigh the mitigating circumstances in their favour and the crime committed by them falls under the category of rarest of the rare case. While deciding to award the death sentence to the Appellants, the Judge held that they are menace to the society who cannot be let off free and it would pose a serious danger to the society if they are rehabilitated in the society.

The Appellants were awarded a death sentence under Section 302 read with Section 34 of the IPC, rigorous imprisonment for ten years with a fine of Rs. 10,000/- each under Section 364 read with Section 34 of the IPC with a default stipulation to undergo simple imprisonment of three months each and rigorous imprisonment for seven years and a fine of Rs. 5,000/- under Section 201 read with Section 34 of the IPC with a default stipulation to undergo simple imprisonment of one month each. The Appellants were convicted for allegedly committing murder of six persons.

Reasoning

The High Court after hearing the arguments from both sides, reiterated, “… section 106 of the Evidence Act cannot be used to undermine the well established rule of law that, save in a very exceptional class of cases, the burden is on the prosecution and never shifts. A person who is facing a charge of murder may be a close relative, friend, co-worker or co-villager of the deceased and there may be circumstances, purely casual or accidental, in which both have been seen together.”

The Court said that it must be first shown that the facts are pre-dominantly and without exception within the knowledge of the accused still he has failed to furnish an explanation which is probable and satisfactory.

“This is a cardinal principle that the weight of evidence is to be considered and not the number of witnesses. A presumption in law does not mean that the Court cannot look into the special features of the case, such as, patent absurdity, inherent infirmity or improbability in the prosecution case. Having regard to the materials produced by the prosecution against Sharafat and Rajesh Kumar, we have no hesitation at all to record that the prosecution miserable failed to establish that Md. Yunus, his wife and four children were last-seen alive in the company these convict-appellants”, it added.

The Court further emphasised that a common intention which necessarily implies a pre-arranged concert must be distinguished from same or similar intention.

“This is also quite well settled that merely because it is shown that all the accused persons carried the same intention but independently of each other it is not enough to attract application of section 34 IPC. … There is no iota of evidence to establish that Rajesh Kumar had any motive or reason to join hands with Sharafat to commit murder of six persons. The prosecution has completely failed to establish that Sharafat and Rajesh Kumar shared common intention to abduct Md. Yunus, Chand Tara and their four children, to kill them and cause disappearance of their dead bodies”, it also reiterated.

The Court remarked that the prosecution evidence is completely hazy and testimony of the prosecution witnesses creates serious doubt on their credibility and veracity of the prosecution case against the convict Appellants.

“The Investigating Officer made serious mistakes in course of the investigation and such lapses on his part left yawning gaps in connecting the convict appellants with the crime. It was the duty of the trial Judge to record specific findings on each incriminating circumstance whether or not that particular circumstance was established beyond reasonable doubt”, it added.

Furthermore, the Court said that the Trial Judge failed to adopt the proper tests and extended unwarranted benefits to discrepant statements of the prosecution witnesses.

“… the trial Judge did not focus on the basic rules of evidence and over-looked the serious lacuna in the prosecution case. In the end, we would close these discussions by observing that the judgment of conviction against Sharafat and Rajesh Kumar rendered by the Additional Sessions Judge in Sessions Case No.12/2015 (35/2021) is based on assumptions and presumptions which could not have been raised in law and therefore warrants interference by this Court”, it noted.

The Court, therefore, concluded that the prosecution failed to establish the charge of abduction and murder framed against the convict-Appellants.

Accordingly, the High Court allowed the Criminal Appeal, dismissed the Murder Reference, and acquitted the Appellants.

Cause Title- Sharafat & Anr. v. State of Rajasthan (Neutral Citation: 2025:RJ-JD:25617-DB)

Appearance:

Appellants: Senior Advocate Vineet Jain and Advocate Harshwardhan Singh.

Respondent: AAG Deepak Choudhary

Click here to read/download the Judgment