© < €. COURT OF JUDICATURe CHHATTIS^.RH: BILASPUft (C.^J DIVISION S6NCH; HON'BLE SHRI K.H.N. KUftANeA, CJ MON'BLE SHRI L.C. BHAbOO, J CRIMZNAL APPE4L N0.848 OF 2001 JV&©mENT_fQR_CONSID^ATION Sd/- JU D ©E- ?7^/05/2Q03 ^. HON'BLE THE JUSTECE ^ <^^^ • r ^. Sd/- Chief Justice POST IT FOR: ^A/05/2003 Sd/- L.C. Bhadoo Judge r (fc, HI&H COURT OF JUDICATUR6 CHHATraS^ARH ; BILASPUft ^ ^. ^" &IVISION BENCH; HON'BLE K.H.N. KURANeA, CJ HON'BLE SHKl L.C. BHADOO, J CftIMINAL APPEAL N0.848 OF 2001 APPELLANT/ ACCUSED RESPONDENT Noduram son of ShyamiaJ 6ond Aqed about 22 years, Resident Of village Khalari, P.S. Keshkal, District: Bastar (C.G.) VERSUS State of Chhatti^garh Pre^ent: Smt. Kiran Jdn, counsel for the occused/appeilant. Shri 6'autam Bhaduri, ©ovt.Adv., for the State/respondent. by-L.C. JU D@M ENT (&@!iv@red w ^AJ^f Mcsy, 2003) The foSiowing Judgmsnt of the Court was deiivered ,J-.- Accused/appetiant Naduram has preferred this criminal appeal under Sectlon 374 (2) of the Code of Criminal Procedure being aggrieved by the judgment of conviction dated 23/06/2001 passed by the learned First Additional Sessions Judge, Bastar at Jagdalpur in Sessions Tria! No,104 of 2001 by which the Eearned Additionai Sessions Judge after hotding the above accused/appelbnt aiong with Baiiyar aiias Bhokaiu guilty of the offence under Section 302 read with Section 34 and Section 201 of the Indian Pe'nai Code convicted each of them \^ 'u ^' under the sdd Sections and sentenced them toundergo imprisonment for iife and to pay fine of Rs.500A each in default of payment of fine to further undergo rigorous imprisonment for six mQnths and to undergo rigorous imprlsonment for two years and to pay fine of Rs.200/m each in default of payment of fine to further undergo rigorous imprisonment for three months, respectiveiy, Bo-rti the sentences were directed to run concurrentEy. (2) The reievant facts for the disposal of this criminal appeoJ are that on 12/12/2000 Kawaluram, father of deceased went to Police Chouki, Vishrampur along wlth Sarpanch Ramlal, Bhanwar singh and Mainuram and gave AAerg intimation (Ex.P/1) to the Incharge, Pollce Chowki with the aliegation that his son Neeru was working with Bhanwar Singh and he used to drive his tractor, Yesterday night at about 7 to 8 after taking dinner he ieft the house along with Nadu 5ond and today morning at about 6-7 Amar SEngh informed him that outside his small garden the body of his son Neeru is honging on the tree of tomannd. The body is touching the ground. On receiving this information, the Incharge of Poiice Chowkl, Vishrampuri KX Mishra reached the site and saw that a rope was tied Ground the neck of deceased Neeru and the body was hanging by the rope. There was a piastic contdner tied with the waist of the deceased, Two shawis and one T-shirt were a!so iying at the site. It appeared that the shawis and the T-shirt are of accused Naduram, He had a doubt that Neeru had been murdered. Based on this report, the Chowki Incharge went to the site. After giving notice (ExP/3), he prepared Panchanama of the dead body (Ex.P/2) and also prepared Panchanama of the spot (ExP/4). One Sando Baniyan and a bbcR fuiE pant were taken into possession from accused Naduram viase ExP/5< Accused Naduram was arrested vide ^ ^ ^. ^^ -^. . l' Ex.P/6 and accused Baiiyar Was Grrested vide Ex.P/7, The requisition for the post mortem of the body was made vide Ex.P/13. The post mortem was conducted by Dr. &.R, Dhaneliya. The post mortem report is Ex.P/8, The Chowki Incharge sent a AAerg intimation vide ExP/9* Based on that the first information report (Ex»P/10 & P/ll) was registered. The crime detaiis were recorded in Crime Details Form vide ExP/14. One shawl and a T-shirt were taken into possession from the site vide ExP/15. The pSastic contdner and the rope were taken jnto possession, A note of rupee t©n was a!so taken into possession from Sahodara Bai yide Ex,P/17, The Patwari prepared the site map vlde Ex.P/18. The Panchanama was prepared by the SarpGnch of Gram Panchayat, Khaiari vide Ex.P/18< After completing the investigation, chalto was fi!ed against the accused persons* (3) Learned Additional Sessions Judge after perusing the records, framed the charges against the accuseci persons for the offences under Sections 302 and 201 of the Indian Penal Code, The accused persons denied the charges, (4) Theprosecution in order to prove the offence against the accused persons examined in all seven witnesses at the trial, The statements of the accused persons were recorded under Section 313 of the Code of Criminai Procedure, They pleaded ignorance and said that they are innocent and have been faisely implicated in this case. (5) The Learned Additiona! Sessions Judge after hearing the arguments of Searned Pubtic Prosecutor and the learned counsel for the accused persons passed the impugned judgment. ^ • ^ u. ^^! -"&.. (6) We have heard learned counsei for the accused/appeiiant, perused the judgment of the triai Court and the evidence avaiiable on record. (7) Learned counsei appearing for the accused/appellcint argued that there is no evidence in this The prosecution has reiied Lspon the theory of iast seen< There is no other evidence which goes to show that the accused and the deceased were at any point of time having strained relGtion. The iast seen evsdence is a yery weak ty'pe of evidence and without corroboration by any other circumstantiaE evidence Sooking to the present facts and circumstances of the case, the accusecl cannot be held guilty only on the basis of that evidence. (8) On the other hand, learned Sovt. Advocate appearing for the State/respondent supported the judgment of the trial Court, (9) As far as the question of nature of the death of Neeru as homicJdaJ ss concemed, teamea8 counse! appearing for the accused/appeltant has not disputed the so.me. Even otherwise PW-6 Dr. O.R. Dhaneliya has stated that on 12/12/2000 he was workin9 as Assistant Surgeon in the Vishrampuri Hospitai< Constabie Virendra Mandavi brought the dead body of Neeru and on examination it was found that there was a rope around the neck of the deceased, The knot of the rope was'on the. right side which was moving on the rope. The rope was around the neck. There was ligature mark around the neck and clotted biood was present^ The rnark of the rope on the neck of the deceased was 2.5 cm in width. The face was In swotlen condition, The tong was between the teethes* After removing the iiga-hjre rnark by biade Itwas seen that the ciotted blood was present. The injury was ante mortem in nature, One Castrol contdner of five L ^o 4-/.. ^^ '\i .^' fiters was tied by the rope around the waist of the deceased and the smefl of the liquor was coming out of it and some iiquor was also present in that container^ The cause of death was asphyxia due to strangulatlon by rope, The death of the deceased was homicidGi In nature. The doctor was not cross examined on . the question of disputing the nature of the death. Therefor^e, in view of the statement of the doctor it stands proved that the deceased died on account of asphyxi'a due to strangubtion by the rope and the nature of the death of the deceased was homicidai. (10) As far as the involvement of the accused/appellant in the crime is concerned, there is no direct evidence of eye wltness in this case. The whole case of the prosecutlon rests on the circumstantial evidence and in order to proye the offence against the accused/appellant based on circumstantial evidence the prosecution has to proye as per the settled principle !aid down by the Hon'bie Apex Court ie., in a case b<xsed on circumstantjal evidence, before the Court can record conviction, it must satisfy itseif that clrcumstances from which an inference of guiit could be drawn have been estabiished by unimpeachable evidence led by the prosecution and that a!i the circumstances put together are not only of a conciusive nature but also compiete the chain so fuily as to unerringEy point oniy to the guilt of the accused and are not capable of any explanation which is not conslstent wlth the hypothesis of the guilt of the accused. It ss on the basis of these principies that we shall examine the circumstantial evidence relied upon by the prosecution in this case. (11) Now we shaii proceed to examine the eyidence avaiiable on record and to see as to whether the prosecution has been able to lf"Z::._.._: 2-A ^ <, ..//. establish the offence against the accused/appeiiant, The onty circurnstantiai evidence against the accused/appeilant has been adduced Is that the accused along with other accused namely Baliyar were seen together with the deceased in the evening of 11 December, 2000, In this connection, PW-1 Kawaiuram, father of the deceased, has stated that the report of the death of the deceased was given by him which is Ex/P/1. In his presence the Poiice prepared the Panchanama of the dead body of the deceased vide Ex.P/2* He has stated thot his son Neeru was working with one Amar singh ond he informed him that his son is hanging near his smal! garden and after seeing the body he gave the report. He that the body was hanglng with the tree of tamarind wlth the heip of the rope which was tied around the neck of the and one end of the rope was tied with the tree. PW-2 Somnath is also the witness of Panchanama and seizure of tHe T-shirt of the accused vide Exp/5< PW"3 Jugbati, mother of. the deceased, has deposed that his son had died about six months prior to recording of her evidence, In the night at about 8*00 accused Naduram and Baiiyar came to he.r residence and they caiied Neeru and thereafter they took him aiong with them. Next morning his son was found In hanging position, In the cross examination, she has stated that the accused persons and his son Neeru were friends, There was no strained reiation or quarrei took piace between them. Since bst 2-4 years the accused persons were fn'ends of her son< At the time when the accused persons cailed her son she was in the house, On earlier occasions they used to cal! my son and take him along with them. PVi/"4 Subchana, of Neeru, has stated that cn the fatefuE day she was going to watch TV and when she was retuming after wori'ching TV she saw the accused persons and deceased' Neeru at the residence of Mainu consuming llquor. Thereafter she saw Neeru in a dead ^- ^^— ^ ^- ^. ..4- condition. She further stated that she did not see Neeru and the accused persons quarr-eiling. In the cross examination she has stated that she had not seen them consuming the liquor but she saw the accused persons and the deceased enterlng into the house of Mainu, PW-5 AAainu has stated that on the fatefu! night a!! the three persons namely the accused and the deceased came to his hpuse, consumed iiquor and thereafter they took one bottie of Eiguor for Ks.lOA. Thereafter they !eft his house. Because a!l the three insisted hirn/ therefore, he aiso consumed the jiquor. In the cross examination, he has stated that deceased Neeru and accused Naduram came to his house. Naduram took the wine and the money was also given by him. Accused Naduram and deceased Neeru were in a heavity drunken condition and were not in a position to waik properly, This is the ail evidence in this case. The dead body of the deceased was found next rnoming near the smali garden of Amar Singh in hanging position on a tree of tamarind. The nyfon rope was found around the neck and the other end of the rope was tied with the branch of the tree and the body of the deceased was touching the ground. On fair scrutiny of the evidence, the oniy evidence is that the deceased ieft hls house along ¥bfith the accused persons and thereafter Sulochana saw afl the three persons entering into the house of mainu and Mainu has stated that accused Naduram and deceased Neeru were in a heavily drunken condition, There is no evidence which goes to show that during this period the deceased and the accused were notjced quarreifing, Even AAainu has stated that both the deceased and accused Naduram were in a heaviiy drunken condition, The mother of the deceased has stated that the accused and the deceased were friends and she never noticed any strained rebtion between them nor saw them quarreiing, Therefore, there is no iota of evidence which persuaded the CourtJ'o^ z. t^ ^. ^-^ ^1^^... 1—;~ infer that on account of any reason there was a chance for the accused to commit the murder of deceased Neeru, Even in the charge-sheet it has mentioned that the deceased and the accused used to bring cail-giris and during the drunken condition some dispute took piace between them and thereafter the accused persons murdered Nirau by the ny!on rope. But to this effect the prosecution has not adduced any eyidence that how the Investigating Officer came to this conclusion and if it was so then why any evidence regarding that they calied the caii-QJrls has not been adduced without which no inference can be drawn, The last seen circumstance is a very weak type of eyidence unless it is supported by some other independent materiai evidence. The Apex Court in the case of Bodhraj QJIQS Bodha & oth©rs Vs. Stot®of Jammu & Kashmsr reported in (2002) 8 SCC 45 has hefd that the last seen theory comes into piay where the time-gap between the point of time when the accused and the were last ailve and when the deceased is found dead is so smali that possibility of any person other- than the accused being the author of the crime becomes impossible. The Apex Court further held that it would be hazardous to come to a conclusion of guilt In cases where there is no other positive evidence to conclude that the accused and the deceased were iast seen together. Similarly 1+le Apex Court in the case of Subhash Chand Vs. Stat®of Rajasthan reported in (2002) 1 SCC 702 has specjficaily he!d that iast seen togeth.er - must be near about the date and time of the incident. Merely on the last seen, the accused persons cannot be held guiity and iooking to the facts and circumstances of the case the prosecution has not been ab!e to adduce any circumstance to enable the Court to draw any inference. On the contrary, the mother of the deceased has stated that the ac'cused and the were having good relations. Therefore, we are of th^ ^^ •^ 9. ^-. h-^ opinion that the prosecution has not been abie to establish and prove the offence against the accused appeilant mereiy based on the one clrcumstance and as per the estabiished principle the prosecution has not been abie to complete the chain of drcumstGnces which persuades the Court to take a view that the accused Is the only person responsible for the murder of the deceased and through the last seen theory in the facts and circumstances of the case no conclusive inference can be drawn that the accused s's the only person who committed the murder of the deceased and in alf probabiiities there is no possibjlity that either the deceGsed himseif committed suicide or anybocly has committed the murder. The accused/appellant in his statement has simpiy pbaded ignorance about the death of the deceased. He has not explained that when they departed from each other, If he would have said something that might have heiped the Court in arriving at the decision, but even otherwise if the accused has not pieaded any defence the prosecution has to adduce evidence to persuade the Court to belieye the circumstaritiai evidence and to hold the o.ccused/appelhnt guilty^ (12) In view of the above, we are of the opinion that in the present case the prosecution has not been able to prove the offence against the accused/appeilant beyond reasonable doubt and the finding of the iearned trial Court based on circumstance of last seen, Jooking to the facts and circumstances of the case ss not based on legal evidence, Therefore, st cannot be sustained. (13) In the result, the appeal of the accused/appellant is aliowed* The judgment of the triai Court convicting the accused/appetiant for the offences under Sections 302 and 201 of 1+ie 2^ 10 •^ ^. IncJian Penal Code is set aside. The accused/appeliant is acquitted of the charges. The accused/appeiiant be set at libert/ forthwith if not requiredin any other case. Sd/- Chief Jusdce Sd/- L.C, Bhadoo Judge Brajesh^ k; V" -J-