y ?"r^^%»^&''^ ^^?s •23SCTaaaMs'StBi8 CFb000057767 7^/' :T 2ES aGH GOOK.i: OF mADHIA SaAiXSH A2 JAB&LPOa Cr.Appeai HO. _J-tl , _/l99iS" T ^^•'t~i AM.t Tt3SJDO!:TDS;N'r Keste-T Kumar S/o Egriyab Mis a, agea 2) y^i-Ss ocsuix'.tion ?ruit Seller, TO.lla.gs aaniF?.rt3Ta fc na chhura tata sil Gayiye -ad aisfcrict EPiigT (M?). Ter^is t Sfcsfce ofM.P. throagl-! IPolice Sfcafcion Gh?»ra (M "I *; « AEPaSL U )3R _SaGTION_3Zli-.Gr.P.G O-HC-22 ^ni ^qNRR, "sRitos, feroy .e^..^.^o^w ^ qffqfepfrl •RllRlf •9 feTA< ^SlPOTSII^t ShriAwadhTripathi,counselfor]theappellant. . Shri Akhil Mishra, Pane! Lawyer|for the State/respondent. - 3y this appeal, the accused/apliellant has questioned th& legality of the judgment of conviction and sentenc^ dated 21-11-1994 passed by the 3 Add'rtiongi Sessions Judge, Raipur, iji S.T. No.282/93 whereby the learned Additiona! Sessions Judge after hoidjng the accused/appellanf guitty Tor the commission of offence under Sectioiii 302 of Ihe t.P.C., sentenced him to 1 undergo imprisonment for life. The case of the prosecution, ji^ brief, is that on 7-4-93 the accused and ihe deceased left iogether from the hc^sse ofthe' deceased and thereafter they consumed liquor. After consuming Siqu|3r, at about 1-1.30 in the night when they were in the village Raniparteva near piddheshwarnath tempie, the deceased and the accused quarreied on the groujid that the deceased asked the accused that vvhy he is having relations with hi^ caughl hold of fhe deceased with the| became- unconscious, fhe accused pi(j threvv it on the head ofthg deceased Thereafter, Ihe accuseci himsetf went sister. in the said quarrel, the accused neck and pressed the neck. When he fked up a stone which was lylng there, ?nd commitied murder of ihe deceased. ito the Poiice Station and gave a merg i intimalion Ex.-P/10-A, upon which F.l.fp. Ex.-P/10 was registered.Sunil Nerna, Sub Inspecior, lefS for the scene of ciscurrence, afler giving nolice (Ex.-P/1), j prepared Panchnamaof the dead hod^ of the deceased under Ex.-P/2. During the police custody, the accused gave a|memorandum Ex.-P/9 and in pursuance of fhat, stone, weapon of offence, wa< taken into poss'ession under Ex.-P/S & [Tit®^nrt 1 XI-HC-22 '-*\ w^ -S^ ^WW-t, d'dl'yilto, 'f^ffTRTp: Slit^I'B! feTRi'311^1 ^RN?"?{fia 'snwiTWira) {N^a' trfe P/4. The papere which were found in possession under Ex.-P/S. The site f| recovered articles were sent for thel Soience Laboratory, Raipur under Ex| was recei'ved. The stone was Serotogist's report is Ex.-P/22. Thej poslmortem examination under Ex.-P/1 Dr. K.V. Rao, Primary Health Centre, postmortem report Ex.-P/16. After vras fiSed against the accused in jhe| Gariyaband.who in turn committed the| where learned 3 Additional Sessions! fri- '+l'iicl'^I 'qTO?ff ^ fel^ TC(5R?F( ^i'aTPaH snisi corr|p!et pockef ofthe deceased were faken jnto lan was prepared by the Patwari. The chemicat examination to the Forensic [-P/14 from where report Ex.-P/20 & 21 [) sent for Serologist's report and the dead body of Rajesh v-fas sent ror 16-A. The postmortem was conducted by' phhura, District Raipur and he prepared Ipletion of the investigation, charge sheet Court bf Judicial Magistrate, 1 Class, |case to the Sessions Judge, Raipur from Judge receiyed the case on transfer for The prosecution in order tja establish the charge against the accused/appellant examined 12 witnesjses. On the other hand, the statement of the accused was recorded underSectibn 313 ofthe Cr.P.C. in which he denied ihe prosecution evidence. Learned flddifional Sessions Judge after hearing the arguments of Additiona! Public P convicted and sentenced the accused. judgment. We have heard learned counsel by learned coynsel for the accused evidence of PW-11 Dr. K.V. Rao in wl- homicida! in nature, it is established homicidal. _^ • _ "^ '~ rosecutor -and cdunsel for the accused, 'appellant as msntioned in para-1 of this for the parties. he fact of homicidal natureof.tfiedeathofRajesh has not been disputed ?appetlarrt. Apart from that, from the ich he has stated that the death may be that the cteath of the deceased was ['Tf^ ^Ra^ @T— XI-HC-22 ^.g^pffaq, sn^T^T 1?;it?;3I)^[ *t|l«h'HT??! ':3't. sn^i •^«!iw^rfsd 3 [used/appellant in crime in question is evidence in this case to connect the The whoie-case is rest on the As far as invoivemeot bf the act concerned, there is no direct or ocuial accused with the murder of the cjrcumstantial evidence j.e. (1) Ihe accused and thedeceased w^re-last seen together alive (2) the blood stained stone (boider), the place of occurrenceat the insjtance In order to rest cohviction based the settled principles !aid down by th4 inference of guilt could be drawn hav^ evidence ied by the prosecution and th^ •WifeFit^•'WR'f •? fe^'i^RSTt ^TSipgifsn^t ^weapon of offence, was recovered from oftheaccused. on the circumstantiat evidence as per Hon'ble Apex Court in the matter of NESAR AHMED VS. STATE OF B!HA? reported in ASR 2001 Supreme Court 241 S i.e. in a case based on circumsltantial evidenoe, before the Court can record conviction, it must satisfy its^if that circumstances from which an been. esiablished by unimpeachable all the circumstances put together are not only of a conclusive nature but ^ unerringly point to the guilt of accused vvhich is not consistenl with the hypothe^ 5 Rajendra Kumar, brother of the dece< |lso oompiete the chain so fully as to ^nd are not capable of any explanalion ,is of the guilt of the accused. Now, we shall proceed to scrutin^e the evidence ofthe prosecution. FW- sed, has stated.that one day at about p.m. the accused came to their hous^ and.he calted his brother who was and thereafter both of them went out. t. Next day morning, Laxman came and sleeping. They talked about 5 minute^ Rajesh did not return whole nigh informed that the body of your brolhe^i^ lying near Siddheshwar temple. PW-6 Smt. Belar Rubin, mother of the decea^ed, has stated that at aboul 5.30 p.m. 1 accused Keshav carrie to their house ajid he called Rajesh. They were taikihg -l-abeut Durga- md thsyi left the house. Thsfeafter, Raj^b^dk [1T^ ^Pa^ T 's^i ^nv^f, wotws, hwvit SD^I^I felFf;3I]^[ s^^i^ y^d |iiSt'B3S|«!e|g not retum. A search was made ati whereabouts couid not be traced out. that he savi; Rajesh and the accused evidence she has stated that 10 da) Brahmin asked herthatRajesh !steasir|i othenwise he wil! kill him. Her son Raje^ love which was knovvn to her. Durga hands and legs of one person of th^ Thereafter, he vacated the house ant examination, she has stated that the d^i send lettere to her son. She also sus^ crime. PW-7.Chhedilal Dewangan has was standing near the bus stand. He ^ joing to liquor shop, if he wante, he ca[ to him and he brought one quarter liquij) ail alone, and thereafter. he left. The law regardina conned based on the lasl seen theory, Apex Court in the matter of OTHERS Versus STATE IOQ2] 8 SCC 45, is thaf; sQen "the theory of last the time-gap betwee[n the accused and thel alive and when the d so smail that possit| than the accused becbmes impossible.l bei|ig TTT ^rafepftiT •qpTCff-^ fsr^ ^tf^R?R ^siPaHsn^i liout Rajesh from his friends but his Qne Chandu, cycle shop owner, informed ^oing towards the river. In para-5 of her ^s prior to the incident Durga Prasad )g his daughter, therefore, he be advised, |h and daughter of Duraa Prasad were in Prasad has said that he has broken the th^ viilage, nov.? .the turn is of your son. t) wenl to other house. In the cross- lughter of Durga Prasad Brahmin used to ^cted Durga Prasad Brahmin behind the |slated Ihat at about a year b^ck Rajesh ^ .kCw 4 tvas a!i alone and he informed/that he is ji bring for him on which he gave money iquij>r. A1 about 7 p.m., al thattime, he was ting an accused with the crime ^s has been held by the Hon'ble f . .& KASHMIR reported in comes into play where tha pQint of time when deceased were se&n last eceased is found dead is ility of any person other the author of the crime It would be hazardous to [1ft^^f^ XI-HC-22 ^) ^^':^FII?FT, anl.+i'is, 3IR?I^ •i^ira'sii^T !**<!•*'at?g SfI^T^giWH^I -?'- •wiiwtTiiTERff •? fs-i^t TSSregr •^ s'ftp? sntw usidn come to a conci there is no other po that the accused seen together." anid !n the matter of reported in (200.2} 1 Supreme C[ourt Cases 702 the Hdh'ble Api Court has held that; ".....To constitute together', the .eviderjoe an inference being the accused were s^en time in close proximpty of commission, of criitie evidence of last seen must definitely permit tirawn that the victim and together at a point of with the time and date n the mafter of State.ftf reported in (2003) Court has held that "...... SVIerely being enough. What has tjs of this nature is del that Beena had beefei the respondent is o|r proximate lo the ier...." !n view of the above law laid before convicting an accused theory, the Court is required to evidence that !he time-gap beft deceased and the accused wer^ death of deceased must be of auilt in cases where itive evidence to conelude the deceased were iupreme Qourt Cases 353 the Hon'ble Apex jseen lasl together is not be established in a case [inite evidence to indicate done to death of which must be aware as a!so flime of being last .seen ipown by ihe Hon'ble Apex Court, |3ased on the last seen together |ascertain from the legal clinching ij'/een the point of time when the seen last together alive and the |o close and proximate that an interence regarfling iffeguilt oT-accusecf can be" drawn an^l^^ is -0-itf).. Xi-HC-22 'ysi^Wv^, »Ti!'y'is, I'iti'll'yy •sn^T'^7 h-u'v 3ni?i ^pNr y^ci i^£SS^;;:;&^^l l^^f;t^p^ sntff ?^iiwaf5;r •£ no possibiiity ofcoming any thirig iogether and death of the deci clinching legal evidence that shojuld point towards the invo'lvement of. the accused in commission c|f murder. Further it is unsafe to convict a person based on Ihe las coupled with other circumstance Ihough, PW-5 Rajendra Kumar has stati accused and the deoeased left togelh< that at about 7 p.m. the deceased was and enauired from him as to whether hi gave the money and the deceased brou Dr. K.V. Rao.in para-3 of his evidenc iquor. Therefore, last seen theory in connecting the accused with the 'erime '*wtcl*il-l i<|t|dl'? TS'Z! ^N^TC ^T sipgii SITOI ' person in between the tasi seen ased. There m.ust be unerringly t seen theory unless fhe last seen is indjcator of the fact thaf the accused is the author of the crim^. iased on this principle, if we !ooj< into the facts of the present case, even t^d that at about 5 p.m. in fhe evening the >r, v/hereas, FW-7 Chhedilal has stated N1 alone on the road and he caroe to him should bring liquor for him on which he jght ofie quarter ofliquor for him. PW-11 has stated that he found the smell of iquor in the intestiheofthe deceased w?itch shovi/s that the deceased consumed Ithis case cannol be made a basis for 1p quesfion for the reason that at about 7 p.m. the deceased was seen a!I a!on^ elar, mother of the deceased, has cat^gorically stated fhat her son was having !bve affairs with the daught.er of Durg, prior to the inoident.Durga Prasad warn^d her to advise her son not to indulge in ipve affairs with his daughter otherwise is concemed, ihe stone (boider) was rec by.RA/-7. Apart from that, RA/-6 Smt. 1 Prasad Brahmin and for that 10 days he wil! finish him. There is no evidence on record which shows that the accusejj and the deceased were seen together nearby Itie place of occurrence; As far as secorid ciroumstance r^garding the blood staihed stone (bolder) ^overed from the place of occurrerice i.e. from She open piace, therefore.it cani|io1 be held that the stone (bolder) vi/as -Jd&^GstiL 'i-i-rr'-'>' w.. ^^ ^(FJRFI, 'STiiy1!^, nCTrey Barve «ri?pftTqiiRif•? •f5^-rf^reeR ^7 3?Pgif 3I)t" aiI^T'^iT l<<;=li»h 3nf?I %U •Ulid by the accused, that was o| and it could not have been seen by an|i open place, therefore, the accused canj stone (bolder) at his instance. Therfe accused with <he crime in question.. E\fi mentioned that th.e origin of the blood c| disintegrated. As such, based on the above prosecution has not been able to esta[bl crime in question. For the foregoing reasons, we| finding of the trial Court convicting the ily within the knowtedge of the accused^ ybody else. As ihe recovery is from the iot be connected with the recoyery of the is no other evidence connecting the in in the Serologist's report, it has beso }uld not be ascertained as the biood was cfise the I.P.C. cannot besustained. !n the result, the appeal of th< allowed. The conviction and sentence iifi aside. The accused/appeilant be set 4 other case. Sd/- L.C.BHADOO Judge lavre of the Hon'bte Apex Court, the ish involvement of the accused in the are of the considered opinion that the •e accused/appeltant under Section 302 of ? appellant succeeds and the same is iposed on the accused/appetlant are set ^t liberty forthwith, if not required jn any Sd/- Vijay Kumar Shrivastava; Judge r -•>.- -'. .-• ^