AHMEDABAD: The Gujarat high court has acquitted a person by quashing his conviction to life imprisonment for a murder with observation that the evidence of ‘last seen together’ cannot be the sole basis for conviction and when the time-lag between a person going missing and finding of his body is considerably large, the courts should look for corroboration.
The case is from Panchmahal district. In 2013, a sessions court in Godhra punished one Pintoo Bariya for murder of Chhatrabhai Bariya, with whom he was last seen on December 24, 2011 evening. Pintoo was trying to mediate between Chhatrabhai and his estranged wife, who was Pintoo’s cousin. Two days later, Chhatrabhai’s body was found. As it was Pintoo with whom the deceased was seen the last time, he was held on charges of murder along with two other accused.
Pintoo challenged his conviction through advocate Pratik Barot in the high court. After hearing the case, the high court acquitted him because the case was based on circumstantial evidence and the chain of events could not be completed by the prosecution. The sword discovered from the accused had blood stained, but the blood group did not match with that of the deceased’s blood group. Three panch witnesses to discovery of the sword from the accused had turned hostile. Besides the post-mortem report revealed that the wounds inflicted did not appear to have been inflicted by a sword.
Besides, the autopsy revealed that the death might have taken place on December 26, 2011 afternoon. The bench of Justice V M Pancholi and Justice R M Sareen was of the opinion that the onus is on prosecution under section 101 of the Evidence Act to prove that the deceased was in the company of the accused for two days, since he went missing. It was only after proving this, the burden could have been shifted on the accused under section 106 of the Act and he can be convicted on the theory of last seen together.
There were three witnesses who supported the story of last seen together, on the basis of which the conviction took place. The HC quashed it and said, “Mere invocation of ‘last seen together’ theory, sans facts and evidence in a case will not suffice to shift the burden or onus, as provided under Section 106 of the Evidence Act, on the accused, unless, the prosecution establishes a prima facie case, first. When the links in the chain of circumstances, itself, are not complete and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift on the accused and the benefit of doubt will have to be given to the accused.”
