Last Seen Theory failed to prove that the deceased was with the accused at his last movement - Hair and Button said to be recovered and compared with that of Accused - Biochemical and immunological examinations include microscopic examination failed to prove that of the accused - Non sending the accused for medical examination when the accused was said to be received injuries in the hands of deceased at the time of strangulation of him - Trial court rightly acquitted the accused - 2015 A.P.(2014)MSKLAWREPORTS

Last Seen Theory failed to prove that the deceased was with the accused at his last movement - Hair and Button said to be recovered and compared with that of Accused  - Biochemical and immunological examinations include microscopic examination failed to prove that of the accused - Non sending the accused for medical examination when the accused was said to be received injuries in the hands of deceased at the time of strangulation of him - Trial court rightly acquitted the accused - 2015 A.P.(2014)MSKLAWREPORTS

There are no eye-witnesses to the occurrence.  The entire case rests upon the
circumstantial evidence.  One circumstance pleaded by the prosecution is the
theory of last seen.
PW.4, maidservant of PW.1, is said to have seen the
accused, taking the deceased with him at 11.30 A.M., from the terrace of the
building.
Though LW.6, a care taker-cum-auto driver of PW.1, is said to have
seen the accused taking the deceased in front of the gate, he was not examined
as a witness.
PW.4 did not withstand the cross-examination.  The relevant
portion reads:

"The police examined and recorded my statement on the next day of the incident
at the house of PWs.1 to 3.  It is true I did not state before police that while
proceeding to the terrace, I noticed the accused taking away the deceased boy
Stallin.  I did not state before police that while I was drying the clothes on
front side after their wash, noticed the accused along with deceased boy as in
Ex.D.3."

Added to this, the failure to examine LW.6 would certainly render that
circumstantial evidence unreliable.

The next circumstantial evidence is in relation to recoveries at the scene of
offence.
In the inquest report, marked as Ex.P.10, it was mentioned that human
hair was found in the left fist of the dead body.
That was preserved as item No.8, mentioned in Ex.P.13.
Suspecting that the hair may be that of the
accused, the permission of the Court was obtained and the sample of hair was
drawn from the head of the accused.  That is said to be marked as Item No.5.
The record also discloses that cut hair was also taken as a sample, item No.7.
All the three samples were examined by PW.11.
In the report, marked as Ex.P.13,
it was mentioned "hair in item Nos.5, 7 and 8 are possessing similar
morphological characters."

It is only when the hair found at the scene of occurrence and the sample
recovered from the accused are found from the same origin, and from the same
human being, that an inference can be drawn about the involvement of the
concerned person.
In the cross-examination of PW.11, the following was
elicited:

"Biochemical and immunological examinations include microscopic examination.  It
is not true to suggest that microscopic examination is different.  It is true
Ex.P.13 does not disclose the origin of the hair, examined as items 5, 7 & 8.
It is true plucked hair and cut hair are having different characteristics.  
It
is true I did not mention whether Item No.5, is cut or plucked hair.
It is not true to suggest that I did not examine Items 5, 7 & 8 thoroughly and
my report is not clear.
It is true in my report, the length and shaft diameters of Items 5, 7 & 8 are not mentioned.  
Witness adds, it is quite common for us
not to furnish the said particulars.
It is true in Ex.P.13, I did not mention
whether the hair in items 5, 7 & 8 is of human origin and the sex.
The colour
of the hair also is not mentioned.
It is not true to suggest that under morphological characters every human hair
is similar.
It is not true to suggest that Items 5, 7 & 8 do not possess
similar morphological characters."


Once the witness has stated that he did not mention that samples 5, 7 and 8 are
of the same human origin and the sex, the whole endeavour in undertaking the
forensic exercise has become futile.

Though it is stated that a button was recovered at the scene of offence and on
comparison of the same with the one on the shirt - M.O.1 of the accused, it was
found to be similar, there are several factors that persuade us to ignore it.
The first is that neither the button recovered from the scene of offence, nor
the shirt of the accused were found to be stained with blood.  The only
conclusion is that the buttons are of the same brand.
The mere fact that the
button of a particular brand is found at the scene of offence cannot lead to any
conclusion.  The reason is that the buttons are manufactured in thousands, and
if the reasoning suggested by the prosecution is accepted, every person, who
wears a shirt with buttons of that brand, is prone to be suspected of committing
the offence.

In a case (supra), 
the Hon'ble Supreme Court found that the
presence of human hair and a button at the scene of offence can be treated as a
piece of circumstantial evidence.  
That, however, is a case, where the forensic
analysis revealed that the two samples of hair were found to be of same origin
and the button was tainted with blood. 
Hence, that precedent would not be of any help to the prosecution.

Another weakness, which is found in the case of the prosecution, is that though
the accused was said to have been arrested on 14.01.2013 itself, he was not sent
for any medical examination.
The reason is that in the confession he is said to
have stated that he received injuries, when the deceased hit him with wooden
planks and that his hair was plucked by the deceased when he is being
strangulated by the rope.  No effort whatever was made in that direction.

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