HIGH COURT OF CHHATTISGARH AT BILASPUR é} Criminal Appeal No. 25 of 2000 APPELLANT Indel Versus RESPONDENT State Criminal Appeal No. 283 of 2001 APPELLAN Pooran Singh and another T ‘ Versus RESPONDENT State of Chhattisgarh JUDGMENT For consideration Sd/~ N.K. Agrawal Judge 21/ 9 ‘ >" HON’BLE SHRI T.P. SHARMA, J gave)“ Sd/- T. P. Sharma’ Judge Post for : ‘7 ~4-2010 Sd/- N.K. AGARWAL Judge Jiig HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal ApEeal No. 25 of 2000 APPELLANT Indel aged about 22 years S/o Mehetar alias Mari Ram, R/o village Depur, P.S. Arjuni Dhamtari, Tahsil Distt. Dhamtaxi (CG) Versus RESPONDENT State Criminal Apgeal No. 283 of 2001 APPELLANT 1. Pooran Singh son of Mehattar Ram aged 35 years, Cultivator 2. Chirounjilal son of Shyamlal aged 3O years, Cultivator Both residents of village Deopur RS. Arjuni, Tahsil and Distt. Dhamtari (CG) Versus RESPONDENT State of Chhattisgarh, through P.S. Arjuni, Distt. Dhamtari (CG) CORAM: HON’BLE MR.T.P.SHARMA 85 HON’BLE MR. N.K. Agarwal, JJ. Present:- Shri Rajendra Patel, Adv. on behalf of Shri Abdul Wahab, Adv. for the appellant in CnA. No. 25/200. Shri Suryakant Mishra, Adv. for the appellants in Cr. A. No. 283/2001.' Shri Ashish Shukla, Govt. Adv. for the State. JUDGMENT (07-4-2010) The judgment of the Court was delivered by N.K. Agarwal, J.:— 1. Criminal Appeal No. 25/2000 filed by appellant Indel and Criminal Appeal No. 283/2001 filed by appellants Pooran Singh and Chirounjilal are arising out of the judgment of conviction and orderiof sentence dated 9-9—2000 passed by the Additional Sessions Judge, Dhamtari in Sessions Trial r r l» No. 415/99, therefore, they are being disposed of by this common judgment. .By the impugned judgment of conviction and order of sentence, learned Additional Sessions Judge after holding the appellants guilty for causing homicidal death of Ramanlal Yadu amounting to murder and concealing the evidence of criminal case, convicted them under Sections 302 read with Section 34 and Section 201 of the Indian Penal Code (briefly, ‘I.P.C.’) and sentenced each of them to undergo imprisonment for life. However, co-accused Rohit Kumar has been acquitted of the charge. . The prosecution case, in brief, is that on information given by Pyarelal Yadu (P.W. 8), Merg Intimation (Ex. P—9) was recorded that Pyarelal (P.W. 8) lodged a missing report on 14—7—99 of his brother Ramanlal Yadu. During investigation of the missing report, accused/appellants Indal Kumar, Puran Singh and Chirounjilal surrendered before the police and on their information, dead body of deceased Ramanlal Yadu was recovered. The Investigating Officer (P.W. 12) recorded Dehati Nalishi (Ex. P—lO) that during investigation of missing report lodged by P.W. 8 Pyarelal, information was received through a wireless message that on 12—7—99 at about 11.00 p.m. Chirounjilal, Indal Kumar, Puran Dhruw and Rohit Kumar have killed Raman Kumar because of quarrel with him in drunken condition and have buried the body in a iield of Sakharam and except Rohit Kumar, other three accused persons have surrendered. On interrogation, they disclosed that they along with co-accused Rohit Kumar on account of quarrel with him relating to money of liquor have killed Ramanlal by strangulation and buried the body in' bund between the fields of Sakharam and Pancham. Disclosure statements of the accused Rohit Kumar, Chironjilal, Indal aid Pooran Singh under Section 27 of the Evidence Act were recorded vide Ex. P—l, P—14, P—l5 and P— 16 respectively. 'One spade and sand were seized on disclosure statement of co—accused Rohit Kumar from the house of accused Chironjilal vide Ex. P—2. The dead body of Ramanlal Yadu was recovered after digging the bund between the fields of Sakharam and Panchram upon the disclosulfe statement made by appellants Indal, Chironjilal and Pooran Singh. F.I.R. was recorded vide EX. P~8. The Investigating Officer left for the place. After summoning the witnesses vide Ex. P—5, dead body was recovered in presence of Executive Magistrate from the bund between the fields of Sakharam and Panchram, inquest over the dead body was prepared vide Ex. P-6 whereby the dead body recovered was identified as dead body. of Ramanlal Yadu. Panchnama of spot where the dead body was found was prepared vide Ex. P—3. The autopsy was done at the same place where the body was recovered vide EX. D-2 by a team of doctors namely Dr. Y.K. Singh and Dr. A. Rasheed, who found following symptoms and injuries over the body of the deceased:- Hairs of scalp were easily pluckable. Eyes were protruded out of eyeball. Tongue was swollen and protruded and was between teeth. Whole body was swollen. Rigor Mortis passed away from upper and lower’ part. Cuticle easily peels off. Rectum was protruded. Both chambers of heart were empty. Stomach was empty. Multiple bruises brownish bluish present in lower extremities of both legs. ii. Two lacerated wounds in 2cm distance were present in right hand. iii. Multiple bruises present over chest of various sizes. iv. Bruises over back of waist. Multiple bruises found over neck both sides and _ interiorly. vi. Both cornu of hyoid bone fractured. vii. Cartilage of thyroid fractured. In the opinion of the doctor, mode of the death was asphyxia due to throttling (strangulation) and the death was caused within 48 to 72 hours from’ the time of post mortem, was homicidal in nature. 4. Plain soil, vet soil and blood stained soil were seized vide Ex. P—4. Viscera of the deceased was seized vide Ex. P—l8. Police statement of P.W. 2 Atmaram Was recorded vide EX. P-7. Spot map was prepared vide Ex. P-12. Seized articles were sent to Forensic Science Laboratory, Sagar vide Ex. P-19 for chemical examination. 5. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (briefly ‘the Code’). After completion of investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Dhamtari who in turn committed the case to the Court of Sessions, Dhamtari from Where the Additional Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of appellant, prosecution examined as many as 16 witnesses. Statements of the accused persons were also recorded under Section 313 of the Code Where they denied the circumstances appearing against them and claimed innocence and false implication. The accused persons also examined D.W. 1 Mehattar as defence Witness. 7. After affording opportunity of hearing to the parties, learned additional Sessions Judge has convicted and sentenced the appellant as aforementioned. 8. Learned counsel for the appellants vehemently argued that the conviction of the appellants is based on last seen theory. In case of last seen theory, prosecution is required to prove that soon before the death of deceased, the deceased was l seen last time alive with the appellants and soon after he was fc‘md dead and there is no considerable time gap between last seen with the appellants and recovery of dead ”‘42. ‘ n @ Ibody or death of the deceased and time gap was so small that possibility of any other person being with .the deceased could completely be ruled out. It was further contended that surrender by the accused was not duly proved; disclosure of dead body and place of incident by the accused has not been proved by credible and trustworthy evidence; the place where dead body was found was an open place; prosecution has not adduced any evidence that the appellants are the only persons last seen with the deceased when the deceased was alive, therefore, if the evidence of prosecution is admitted at its face value, then also the same would not be sufficient for drawing inference that the appellants are the persons who have caused homicidal death amounting to murder of the deceased. 9. On the other hand, learned State Counsel supported the impugned judgment and argued that in the present case, prosecution has proved circumstances sufficient for conviction of the appellants. He further argued that P.W. 2 Atmaram, P.W.5 Laxman and P.W. 8 Pyarelal have proved Panchnama and have identified the body of Ramanlal recovered at the instance of accused. Presence of the Magistrate has been proved’by P.W. 12 Nestore Kujur, 1.0. P.W. 7 Dr. Y.K. Singh who conducted autopsy on the spot has proved the fact that death of deceased Ramanlal Yadu was homicidal in nature. Accused Indal, Pooran Singh and Chironjilal have surrendered themselves and disclosed about the place where the body of Ramanlal was buried. Therefore, they are the persons who have disclosed the fact of death of Ramanlal for the first time. The body was recovered at their instance; statements of P.W.8 Pyarelal, P.W. 3 Jagdish, P.W. 4 Khorbahara, P.W.ll Panchuram would clearly establish that the deceased was last seen with the appellants before rhis body was found in the bund between field of Sakharam. No explanation was pffered by the accused in this regard. All labove circumstances are sufficient to establish that the appellants are the perspns who have committed aforesaid offence. 10. In order to appreciate the argument advanced on behalf of the parties, we have examined the material available on record. 11. In the present case, homicidal death of Ramanlal as a result of ante mortem injuries is not substantially disputed by the appellants, otherwise established by the evidence of Dr. Y.K. Singh P.W.7 who has conducted autopsy and deposed that the injuries found over the body are suggestive of the fact that the mode of the death was asphyxia due to throttling and death was caused between 48 to 72 hours from the time of post mortem. The body recovered was of Ramanlal also could not be disputed on account of the evidence adduced by P.W. 2 Atmararn, P.W.5 Laxman Singh Sahu, P.W.8 Pyarelal and P.W. 12 Nestore Kujur. In the present case, prosecution has examined P.W. 3 Jagdish, P.W.4 Khorbahara, and P.W. 11 Panchuram to prove last seen, P.W. 2 Atmaram, P.W. 5 Laxman, P.W. 8 Pyarelal and P.W. 12 Nestore Kujur as evidence of Panchnama, P.W. 16 B.D. Nand to prove surrender by the accused persons before the Special Thana, P.W. 13 Rampyare, P.W. 14 Kanhaiyalal, P.W. 5 Laxman, P.W.8 Pyarelal, P.W. 9 Ramkumar and P.W. 12 Nestore Kujur to prove disclosure statement and P.W.8 Pyarelal and P.W. 15 Reshambai regarding motive. l2. As regards complicity of the appellants in the crime in question, P.W. 3 Jagdish has deposed that the accused/appellants along with the deceased came to his house to demand liquor, which he refused. Thereafter they went to P.W. 4 Kohrbahara. P.W.4 Khorbahara has deposed that they came along with deceased Ramanlal Yadu to his house, consumed liquor and thereafter they left his house. The appellants were, well lgnown to P.W. 3 Jagdish and P.W. 5‘4 Khorbahara. Statements of P.W. 3 Jagdish and P.W. 4 Khorbahara stand unrebutted. 13. P.W. 8 Pyarelal has deposed that on 13—7-99, on enquiry, father of accused Indal had stated that Indal ‘returned to home at 4.00 a.m. where his mother had stated Indal returned at about 11.00 p.m. P.W.8 Pyarelal asked the accused about deceased Ramanlal Yadu. In reply to his enquiry, the appellant stated that as they consumed excessive liquor, so they do not know where Ramanlal has gone. The above evidence adduced by the witnesses would clearly establish beyond reasonable doubt the fact that the appellants in the night of 12~7-99 at about 7—8 p.m’. were last seen with deceased Ramanlal and they consumed liquor. 14. On 14—7-99, accused persons themselves surrendered before the Special Thana, Raipur saying that they have murdered the deceased and have buried the body in the bund between the fields of Sakharam and Panchram. Till then, nobody was aware despite search on report of missing person lodged by P.W.8 Pyarelal that Ramanlal had already died. 15. Prosecution has recorded the disclosure statements of the appellants as well as co-accused Rohit Kumar vide Ex. P- 1, P—14, P—15 and P-16 but‘the disclosure statements and seizure on the basis of said disclosure statements have not been supported by PW 13 Ram Pyare and P.W. 14 Kanhalyalal They had only admltted their Signatures over the documents and have deposed that they had Signed over the documents at the Instance of police. The prosecutlon has declared both of these witnesses hostile, even in their cross— examination also, they have not supported the case of the prosecution. 16. P.W. 312, Nestore Kujur, 1.0. has deposed in his evidence that he has recorded the statements of appellants s vide Ex. 13—14, P-15 and P46 and at the instance of the appellants, he has recovered the dead body of the deceased from the bund between the fields of Sakharam and Panchram. In his detailedcross-examination, he has denied the suggestion .that he has taken the signature of the Witnesses by applying undue influence. He has also denied the suggestion that memofandum was not prepared in front witnesses. He also denied the suggestion that the police was aware about the place and only thereafter disclosure statement was prepared. According to P.W. 12 Nestore Kujur, the appellants have surrendered themselves before the police and were taken into custody and handed over to Station House Officer, Arjuni and thereafter at the instance of the appellants, memorandum under Section 27 of the Evidence Act were prepared. The dead body was recovered at the instance of the appellants. P.W. 13 Ram Pyare and P.W. 14 Kanhaiyalal haVe not stated anything to show that they have signed over the documents under the fear or pressure of the police. The evidence adduced by them would reveal that they are concealing the truth In these circumstances, the ev1dence of Investlgating Officer Nestore KuJur (P W 12) relatmg to disclosure statements and seizure on the bas1s of d1sclosure statements remains for cons1derat10n. l7. Evidence of the police cannot be discarded only on the ground that- they are Investigating Officers or police interested in the outcome of the case. In the matter of Anil alias Andya Sadashiv Nandoskar v. State of Maharashtral it has been held by the Apex Court that witnesses being police officers does not by itself create a doubt about their creditworthiness if non-examination of Panch witnesses is explained satisfactorily. Relevant portion reads as under: “indeed all the five prosecution witnesses who have been examined in support of search and a seizure were members of the raiding party. They are all police officials. There is, however, no rule 1 AIR 1996 sow 2943 of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence, hOWever, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinized and independently appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. We have carefully and critically analyzed the evidence of all the 5 police officials. There is nothing on the record to show that any one of them was hostile to the appellant and despite lengthy cross—examination their evidence has remained unshaken throughout. These witnesses have deposed in clear terms the details of the trap that was laid to apprehend the appellant and the manner in which he was apprehended. Their evidence regarding search and seizure of the weapons from the appellant is straightforward, consistent and specific. It inspires confidence and learned counsel for the appellant has not been able to point out any serious, let alone fatal, infirmity in their evidence. In our opinion, the factum of search and seizure of the country made revolver from the conscious possession of the appellant has been established by the prosecution beyond any reasonable doubt. The explanation given by the prosecution, for the non—examination of the two Panch witnesses, which is supported by the report Ex. 24 filed by PW—4 P.I. Gaikwad is satisfactory. The evidence on the record shows that the raiding party made sincere efforts to join with them two independent Panchas at the time of search and seizure and they were so joined. They are also cited as prosecution Witnesses and summoned to give evidence. However, despite diligent efforts made by the prosecuting agency to serve them, they could not be located or traced and therefore, they could not be examined at the trial. In the face of the facts stated in report Ex. 24, the correctness of which has remained virtually unchallenged during the cross examination of PW—4, the non examination of the two Panchas cannot be said to be on account of any oblique reason. Their non production at the trial thus has not created any dent in the prosecution case. The prosecution cannot be accused of withholding these Witnesses since it made every effort to trace and produce them at the trial but failed on account of the fact that they had left the address furnished by them at the time of search and their whereabouts could not be traced despite diligent effort made in that behalf. We, therefore, do not find any reason to doubt the correctness of the prosecution version relating to the apprehension of the appellant, the search and seizure by the raiding party and the recovery from the appellant of the country made revolver and cartridges for which he could produce no license or authority because of the non examination of the Panch witnesses We find that the evidence of PW 1 to PW—S is reliable, cogent and trustworthy.” l8. , For resting the conviction solely based on the circumstantial evidence, the law laid down by the Apex Court in the matter of Dhananjay Chhatterjee Vs. State of W.B.2 is that “In a case based on circumstantial evidence, the 2 (1994) 2 scc 220 \ @ circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the Court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof.” ' 19. In case of Both Raj alias Bodha and others Vs. State of Jammu and Kashmir3, the Apex Court laid down that there is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are :— 1. the circumstances from which the conclusion of guilt is to be drawn ' should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may’ be established; 2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3. the circumstances should be of a conclusive nature and tendency; 4. they should exclude every possible hypothesis except the one to'be proved; and 5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and 3 AIR 2002 sc 3 164 12 ¢y must show that in all human probability the act must have been done by the accused.” The Apex Court in the case of State of Goa. v. Sanjay Thakran and another and another connected appeal4 held that in case of last seen together the proof of last seen together would be relevant if the prosecution establishes that in the intervening period there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime. Para 34 of the said judgment reads thus:- “34. From the principle laid down by this Court, the Circumstance of last‘seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the presecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused pers’ons. Hence, if the prosecution proves that i in the light of the facts and circumstances of the case there was no possibility of any other persdn meeting or approaching the \\\ \ f\ \ \ 4(2007) 3 SCC 755 \\ \ deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place Where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.” xJ 21. The Apex Court in the case of Sahadevan alias Sagadevan v. State represented by Inspector of Police, Chennai5 has held that if the prosecution on the basis of reliable evidence establishes that the missing person was last seen in the company of the accused and was never seen thereafter, then it would be obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. Para 19 of the said judgment reads thus:- “19. The last circumstance relied on by the courts below pertains to the stand taken by the appellants in the trial as to parting company with Vadivelu. Here we must notice that as discussed hereinabove, the prosecution has established the fact that Vadivelu was seen in the company of the appellants from the morning of 5.3.1985 till at least 5 p.m. on the same day, when he was brought to his house and thereafter his dead body was found in the morning of 6.3.1985. Therefore, it has become obligatory on the appellants to satisfy the court as to how, where and in what manner Vadivelu parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances