.^^•:-—^ HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Mr. Sunil Kumar Sinha & Hon'ble Mr. Radhe Shvam Sh&rma. JJ. Criminal ApDeal No. 975/1996 APPELLANT Vs. Respondent Shri Sukh Sagar Satnami. S/o. Shri Anjor Singh Satnami, aged about 32 years, Agriculturist, R/o. Village Sonpuri, Police Station Bemetara, District Durg, M.P. (Now State of Chhattisgarh Stete of Madhya Pradesh, Through the Officer-in-charfle, Police Station Bemetara, M.P. (Now State of Chhatttsgarh) fCriminal Appeal under Section 374 Cr.P.C.) Present: Mr. UN Awasthi, Sr. Advocate with Ms. Rateha Awa^ii, counsel for the appellant. Mr. UKS Chandel, Panel Lawyer for the State. ORAL JUDGMENT (20.07.2011) The followina iudament of the Ceurtwat oassed bv Sunll Kumar Slnha. J. This appeal is directed against the Judgment dated 4th July, 1995 passed in Session Trial No.127/1993 by the 6th Additional Session Judge, Durg. By the impugned judgment, the appellant has been convicted under Section 302 IPC andsentenced to undergo imprisonment for life. 2. The facts, briefly stated, are as under:- Deceased Suresh and the appellant were resklents of same village. On 11 .5.92, at about 6.00 a.m., the appellant came to the house of the deceased and asked for giving him contract for harvesting standing crops of the deceased. Case of the proseoution ts that the / ...cs^, /f^.. \ .-.^...-..^ ^. %.. ^^^ ./ '%...v^ i_ Criaunal Appeal No.975/1995 appellant and the deceased both left the house of the decesffied at about 6.00 a.m. to see the crops. After half-an-hour, the appellant eame to the house of the deceased and tokl his wife Monika (PW-10) that the deceased has not come as he is plucking datun. The deceased did not retum to the house till 2.00 p.m. At about 2.00 p.m., dead body of the dec^sed was found at an open plaoe in the field of one Bahadur. The matter was reported to the concerned pollce station by Vijay Singh Rajput (PW-7), on whteh, First Information Report (Ex-P/6) wa® registered. The First Information Report contains the above facts and tt also oontains about the strained relationship between the deceased and the three other acoused persons on account of previous litigations. Investjgating ofRcer reached to the place of occurrence, gave notice to the panchas and prepared inquest (Ex-P/1) on the dead body of the deceased. Dead body of the deoeased was sent for post mortem to Govt. Hospftal, Bemetara, where ie post mortem examination was conducted by Dr. Naresh Kumar Thwari ^W"12). He found multlple incised wounds and contusions on different parts of the body of the deceased and opined that cause of death was shock and hemorrhage on account of injuries sustained by the deceased and the death was homicidal in nature. The post mortem report is Ex.P/8. In further investigation, three accus^l persons (all acquitted) were taken into custody and their memorandum statwients under Sectton 27 of the Evidence Act, were recorded and tabbal, lafhis and clothes were seized from their possession. Further case of the prosecution is that ie appeltent was absconding from the village and he was arrested on 11.3.93. Hte memorandum statement under Section 27 of the Evidence A@t, was also recorded and lathi was seized at his instance. Charge sheet was flted f-~- ^^^^.^ • ^Sv ^^\ ^^ '^^\ ^^"^ ^ 'Y ^iS^ ^........".^'^ ^ ^ Cmninal Appeal No.975/1995 against three aceused persons eartier, and later on, supplementary diarge sheet was filed against theappellant atso. Thus, prosocutioR flled charge sheet against four accused persons. There was no eye witness to the incident and the case of the prosecution was bascd on drcunretan^al evidence. Main circumstances were selzure of weapons and ctothes at the instances of the accused persons; the deceased was lastly seen in the company of the appellant; and that the appellant absconded from the vlllage after the death of ftie deceased. The witnesses of seizure and memorandum did not support the case of the prosecution, ther^ore, their evidence were not believed by the Sesslon Judge and three accused persons, namely Ramcharan (A1), Chotten @ Saj|an Das (A2) and f^im Kumar (A3) were acquitted of the charges framed against th«n. However, taking the evidence of last seen together as also the fact tfiat the appellant absconded from the village after the death of the deceased, it was held that it was the appellant, who committed the murder of the deceased and was liable for punishment under Section 302 IPC. Thus, the appellant was convlcted under Section 302 IPC and sentenced to imprteonment for life. 3. Shri U.N. Awasthi, learned Senior Advocate argued that there is a long time-gap between the deceased last seen in the company of the appellant and the recovery of dead body of the deceased; only conduct of absconding of the appellant after the incident woutet not be sulficient for holding him guilty for punishment under Section 302 IPC, therefore, the conviction based on such circumstantial evidence cannot be sustained. He also argued that the learned Session Judge has held in para 22 of the judgment that there was no motive for the appellant to kill the deceased, //r ... •y 1 %sWii% N I. "s^..,// \. "^y ^^^SSSs?^^ Criminal Appeal No.975/1995 therefore, in the light of all these facts, theabov®circumstances would not be incriminating against the appellant. 4. On the other hand, Shri UKS Chandel, teamed Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sesston Court. 5. We have heard the leamed counset for the parties at length and have also perused the records of the sessions case. 6. In Bodh Rai alias Bodha and others Vs. State of Janwnu and Kashmir. AIR 2002 SC 3164. ttie Apex Court lakt down that there is no doubt that conviction can be based sotely on oircumstantial evMenoe but the conditions precedent before conviction coukl be based on cfrcumatartiat evidence, must be fully established. They are: (1) the circumstances from whfch the cenctuslon of guilt is to be drawn shoukl be fully established. The circumstances concemed 'must' or 'shoutel' and not 'may' be establlshed; (2) the facts so established should be consi^ent only with the hypothesis of the guilt of the accusect, that is to say. they shoutel not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclush/e nature and tendency; (4) they should exclude every possible hypolhesis except the one to be proved; and (5) there must be a ohain of evidence so complete as not to teave any reasonable ground for the conolusion consistentwith the innocence of ftie accused and must show that in all human probability the act must have been done by the accused. About the (ast seen theory, the Apex Coyrt held that th®(ast seen theory comes into play where the time gap between the polnt of tirae wtien /<•" '.•/ fe'1 ^ y 'v -3^ Criminal AppeatNo.975/1995 the accused and the deceased were seen last alive and when the deeeased is found dead is so small that possibility of any person other than ftte accused being the author of crime becomes imposslbte. It would be diffteutt in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and posslbitlty of other persor® coming in between exists. In the absence of any other positive evtelence to conclude that accused and deceased were last seen together, it woirtd bc hazardous to come to a concluston of a guilt in those cases. 7. Almost similar view was again taken by the Apex Court In the matter of State of Goa-vs- Saniav Thakran & anr.. (2007 (4»8BR ^t. WhNe passing the said judgment, the Apex Court has also referred to the decteion of Bodh Raj case (supra) and finally about the circymstance of tost seen together, again it was reiterated that "rt woutel normally be taken tnto consideration for finding the accused guilty ofthe offence charged with when it is established by the prosecution that the time gap between the pohrt of time when the accused and the deceased were foundtogether alive and when the deceased was found dead is so small that possibiltty of any other person being with the deceased could completely be ruled out. 8. Monjca (PW-10) was the wife of the deceased. She cteposed that the appellant came to their house at about 6.00 a.m. and tie appedant 9nd the deceased both went to see the slanding crops. She further deposed that after sometime, the appetlant came back to their house and when she g®ked about her husband, he stated that her husband was plucWng datun. Jt is after all this, dead body of the deceased was found at about 2.00 p.m. FIR (Ex-P/6) was promptly lodged by Vijay Slngh, brother of the deceased. He 3^^^^^: '^y -^s^ .^-^ € 6 Crimmal Appeal No.975/1995 /3^ ateo mentioned in the FIR that they saw the dead body of the deoeased at about 2.00 p.m. This fact te not disputed before us that the cteceased was seen in the company of the appellant at about 6.00 a.m.and thereafter his dead body was found at about 2.00 p.m. Therefore, there is a long time gap of about eight hours in between the two events i.e. lastly seeing the deceased in the company ofthe appeltant and discovery ofthedeadbody of the deceased. It is not a case, where the time gap between two events is so small that possibiltty of any person other than the appetlant a6 author oS tha crime is impossibte. We may also note another important featwe of the case that after half-an-hour of the departure of the deceased and »e appellant from the house of the deceased, the appellant oame back to the house of the deceased and told the wife of the deceased that the deceased was plucking datun. If the appellant was in fact the auttior of the crtme, in normal human conduct, he would not have retuned to the house of the deceased to face his wlfe and would have immediately absoonded from the village. But as stated by the wife of the deceased, the appellant came to her house and told her that the deceased was plucking datoon near hjs field. 9. Considering the above time gap between the cteceased la®tseen with the appellant and the discovery of the dead body of the deceased, we flnd tt difncult to hold that the above circumstance of last seen together was incriminating against the appellant. 10. The leamed Sesston Judge has seriously taken the conduct of the appellant that he absconded from the village and he was arrested after a long time. So far as the conduct of the appellant absconding iffinmediately after the occurrence is concemed, we find that tt was not establlshed. Rrstly ^^—^^ ^ .^' ^. 1 Crinrinal Appeal No.975/1995 the appellant had gone to the house ofthe deeeased and he had telked wtth the wife of the deceased and theregfter he was not seen ki the village. In Thimma vs. The State ot Mvsore. AIR 1971 S.C. 1871, the Supreme Court held that "Though the condu(A of accused in abscondlng tmme^iatety after the occurrence of the offence is retevant evidence, as indicating to some extent his guilty mind, it is not conclusive of that fact beeause even hinoeent person when suspected may be tempted to such conduot te awoid arrest." 11. We are of the view that in the present facts and drcutnstances of the case, when the appetlant did not abscond immediartely and he altegedty absconded after meeting the wlfe of the deceased, such at?scoiiding crf the appellant would also nol be incrimtnating against Wm. 12. We further note that the leamed session Judgey vwsle para 22 ©fttie judgmerrt, has held that the pr<»ecutionhas not estattished any raotive for the appellant to commft the murder of the deceased, whiOEh, in our vt«w, assumes importance in the facts and drcumstances oftheease. 13. For the foregoing reasons»we are unabte to sustain the convtetton of the appellant on the above set of ciroum^antlat evidenGe. The drcumstances put forth by the prosecution are not crf condusiw nature and tendency, they have not excluded every possible hypothesis exoept the one to be proved, and chain of circumstantial evidence is not eomplete so as to hold that in all human probability the act must have been done by the appellant. 14. In the resutt, the appeal is allowed. The conviction and seRterwe awarded to the appellant under Section 302 IPC are sflt-soide. The ^^•&. .-^ ..'f' '.••":. 8 Crifflinal Appeal N@.975/1995 appellant is acquitted of the charges frsNned again^ hlm. It is stated that the appellant is on bail. His bail bonds are cancelled and surefy stands discharged. Biri Sd/- Sunil Kumar Sinha Judge Sd/- R.S. Sharma Judge -'--2