MEHAR CHAND Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The instant petition has been instituted by the bail petitioner under Sec. 439 Cr.P.C., for his being released from judicial custody wherein he stands presently lodged for his allegedly committing offences punishable under Ss. 302, 201 read with 34 of IPC, recorded in case FIR No. 251/14 of 30.10.2014, registered at Police Station Baddi, District Solan, H.P.

(2.) The bail applicant and the deceased were co -employees in Unison Company at Jharmajri, Baddi, District Solan, H.P. The body of the deceased Sharwan Kumar stood recovered as depicted in site plan from a Nalah on 25th October, 2014. The Investigating Officer, on recording the statement of Vikas who had therein communicated the factum of his having last seen on 19th October, 2014 both the co -accused and the deceased simultaneously atop the motorcycle of the bail applicant, concluded therefrom of the bail applicant along with the co -accused standing connected in the murder of the deceased, whose body, however came to be located subsequently on 25th October, 2014. Nonetheless, the efficacy of the theory of last seen as propounded by the prosecution at this stage may loose its tenacity and vigor in the face of it emanating from a perusal of the file maintained by the Investigating Officer, of the deceased returning to perform work at his work place on the subsequent day. The factum of the deceased returning to the factory to perform work thereat on the day subsequent to his standing purportedly last seen in the company of both the accused while theirs being simultaneously atop the motorcycle of the bail applicant would have carried force to connect the bail applicant in the offences alleged against him only in the event of disappearance of the deceased in quick spontaneity of his being purportedly last seen with both the accused in the manner aforesaid. Contrarily the factum of his returning to perform work at his work place on the day subsequent to his purportedly last seen in the company of both accused while theirs being simultaneously atop the motorcycle of the bail applicant dispels the effect, if any of the efficacy of the circumstantial link constructed by the Investigating Officer embodied in the hypothesis of his being alongwith the co -accused standing last seen in the company of the deceased. Moreover, the body of the deceased was recovered from a Nalah on 25th October, 2014, hence a week subsequent to his being purportedly last seen in the company of both the accused while theirs being simultaneously atop the motorcycle of the bail applicant. As a sequitur, the belated recovery of the body of the deceased or its recovery being improximate to his standing purportedly last seen in the company of the accused while theirs being simultaneously atop the motorcycle of the bail applicant annihilates the effect, if any, of the deceased standing seen in the company of the accused. For reiteration, obviously, the principle or maxim of "last seen" to connect the bail applicant in the offences alleged against him would carry weight and succor only if subsequent to the deceased being purportedly last seen in the company of the bail applicant stood never seen thereafter. In other words, if he was for the reasons aforesaid seen thereafter the maxim of "last seen" would not apply. In face thereof reliance at this stage by the Investigating Officer upon the statement of Vikas communicating therein of his having purportedly last seen both the accused in the company of the deceased while theirs being simultaneously atop the motorcycle of the bail applicant is inapt nor does it constitute any firm link in the chain of circumstantial evidence as constructed by him against the accused.

(3.) Be that as it may the Investigating Officer had collected blood stains existing on the motorcycle of the bail applicant for theirs being sent for comparison with his blood group to hence constrain a conclusion of both the accused alongwith the deceased even subsequent to 19th October, 2014 simultaneously joining each others company whereafter the body of the deceased stood detected from a Nalah. However, the aforesaid blood stains collected by the Investigating Officer on standing dispatched to the FSL concerned for elicitation of an opinion thereon on the tallying of the blood stains occurring on the motorcycle of the bail applicant with the blood group of the deceased, for marking their inter -se compatibility, has evinced therefrom an opinion of theirs occurring no compatibility inter -se the blood group of the deceased vis   -vis the occurrence of the blood stains thereon. In face thereof the aforesaid piece of evidence gives no leverage or capital to the Investigating Officer to contend of its constituting the best evidence for connecting the accused in the offences alleged against him.