HIGH COURT OF CHHATTISGARH, BILASPUR ^ Division Bench: Hon'ble Shri Sunil Kumar Sinha &. Hon'ble Shri Radhe Shvam Sharma, J J ».. Criminal Appeal Np. 655 of 1995 Ghasiya alias Ghasiram BB'IIBISII !ir8' ;j: ill •^ll;s Vs. State of Madhya Pradesh (Now State of Chhattisgarh) .;A JUDGMENT -E'oE_c£uasideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE I^ADHE SHYAM SHARMA 3 °\V'.B-^- Sd/- R.S.Sharma Judge /'' ' • . .. '"-s. Post for Judgment : 1]. /08/2011 •• / ~ '•>». SdA Sunii Kusiiar Sinha Judge 1 1 ;K^; S^is ^ HIGH COURT OF CHHATTISGARH, BILASPUR Division Bench: Hon'ble Shri Sunil Kuniar Sinha & Hon'ble Shri Radhe Shyain Sharina, J J APPELLANT RESPONDENT Criminal Appeal No. 655 of 1995 Ghasiya alias Ghasiram son of Firtu Udiya, aged 40 years, Labourer, '.Resident of Village: Bamhani, Police Station Palari District Raipur, M.P. (Now Chhattisgarh) Versus State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeal under Section 374 (2) ofThe Code of Criminal Procedure, 1973) Appearance: Mr. Dhirendra Pandey, Advocate for the appellant. Mr. U.K.S. Chandel, Panel Lawyer for the State. JUDGMENT (11 .08.2011) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) This appeal is directed against the judgment dated 28U1 of March, 1995 gdssed in Session Trial No. 119/93 by the Additional . Sessidn Judge, Baloda Bazaas., District Raipur. By the impugned judgment, the appellant has been convicted u/ss 364, 302 Sc. 201 IPC and sentenced to undergo R.I. for 10 years, imprisonment of X \ Criminal Appeal No. 655 of 1995 life 8s R.I. for 5 years with further direction to run the sentences concurrently. Itill (2) The facts, brieflystated, are as under:- Deceased- Lallu @ Lalendra was sori of Sonbai (PW-1). Sonbai was a deserte.d lady. She was married with on Balaram Satnami. Lallu was her son through Balaram Satnami. After the desertion,, she left village- Maladabri and at the relevant time, she was residing in Gudiyari, Raipur. Appellant- Ghasiya @ Ghasiram had kept her as mistress. Since the relations between the appellant and Sonbai also became strained, the appellant left her company and Sonbai (PW-1) was residing with the deceased who was aged about 7-8 years dt the time of the occurrence. The deceased was missing since 24,2.92. A missing report was lodged by Sonbai (PW-l)-on 24.2,92 in P.S. Ganj, Raipur. On 28.2.92, Kotwar Neerudas (PW-3) made a report to police outpost- Gidhpuri that dead body of''a child, aged about 8 years, was lying in the field of one Bholu Kenwat in village Charouda. The body was in burnt condition. Based on such report Crime No. 56/92 %as registered. During the course of investigation, it was found that fhe dead body which was recovered in burnt condition was that of deceased- Lallu @ Lalendra. At the relevai'it time, the appellant was working at some different place. " However he was seen in village Gudiyari on 24.2.92 while he was sitting in the hause of one Bahad^lri'Sadhai (carpenter). Chamanlal (PW-4) gave his stafetnent on 5.3.92 but he.did not state that the deceased was seen in the coi^any of the appellant who in fact took ', the deceased with him. Since the appellant also absconded from thevillage after the date of occurrence, the prosecution alleged that.it was none else than the appellant who cbmmitted fflurder of the deceased and tried to destroy his body by putting it on fire. Criminal Appeal No. 655 of 1995 (3) There is no eye-witness to the incident and the case of the prosecution is based on circumstantial evidence. The leamed Session Judge mainly relied on the circumstances of last seen together and that the appellant absconded from the village just after the occurrence, and oonvicted 85 sentenced the appeUant as aforementioned. (4) Mr. Dhirendra Pandey, leamed counsel appearing on behalf of the appellant, argued that none of the circumstances were proved by the prosecution beyond all reasonable doubts. The circumstances put forth were capable of being explained and they were not sufficient to hold the appellant guilty of the aforesaid offence, therefore, the cpnviction of the appellant cannot be sustained. r (5) On the other hand, Mr. U.K.S. Chandel, learned Panel Lawyer appearmg on bel-ialf of the State, opposed these arguments and supported the judgment passed by th'e Session Court. (6) We have heard the leamed counsel for the parties at length and have also perused the records of the sessions case. ^ (7) Admitte,dly, there is no direct evidence in this case and the case of the prosecution is ^sdd on circumstantial evidence. In a case based on circurastantial evidence, the circurustances from which the conclusion of guilt is to be drawn have to be fully established and all the circumstances so established should be of y Criminal Appeal No. 655 of 1995 -^\ m BIK IB! -J conclusive nature and tendency. They inust point only towards the guilt of the accused. The circiunstances should not be capable of being explained and the chain of the circumstantial evidence inust be so complete as not.to leave anyreasonable ground for the beUef consistent with the innocence of the accused. This is what the Supreme Coiirt said in many cases. Therefore, we ought to be satisfied that the circumstances on. which the prosecution relies leave no option but to hold that the crime imputed to the appellant has been established beyond a reasonable doubt. (8) So far as circumstance of seeing the appellant in village Gudiyari is concemed, that would be hardly incriminating against the appellant. The case of the prosecution is that the appellant used to go to Punjab for earning liveUhood. He had returned from Punjab after one month and he had some altercation with the mother of the deceased. Chamanlal (PW-4) has deposed that on 24.2.92 at about 3.00 p.m., the appeUant was sitting in the house of one Bahaduri Badhai. Bahaduri Badhai has not been examined by the prosecution. Even ifwe hold it as proved that the appellant was present in the village on 24.2.92, that itself would hardly be ineriminating against him. -. / (9) <As far as.evidence of last spen'is concemed, Chamanlal (PW- Vt. • 4) (^eposed that on 24.2.9.2 at about 3.00 p.m. when he saw the appellant sitting in the house of Bahaduri Badhai, deceased- Lallu @ Lalendra was also present there. He was asking for some money from.the appellant. The appellant said to the deceased that he ^ m Iffi Cruninal Apueal No. 655 of 1995 should corae to the chowk, he will give him money there. Thereafter Che appeUant took the deceased with him towards chowk. According to Chamanlal (PW-4), thereafter the deceased was never seen alive. (10) Chamanlal (PW-4) is brother-in-law (jija} of Sonbai (PW-1). Though he deposed during the trial-that he had seen the deceased in the company of the appeUant on 24.2.92 and the appellant had taken the deceased with him, but the above facts relating to last seen are omission in his case diary statement (Ex.-D/1) which was recorded on 5.3.92. Even these facts are not mentioned in the missing report lodged by: Spnbai (PW-1). According to Chamanlal (PW-4), he was throughput with Sonbai while they were making searchofthe deceased. If the above facts were in the knowledge of Charnanlal (PW-4), he would have certainly disclosed them to Sonbai and Sonbai would have told to the police about all this, but the things are not Uke J;hat and theory of last seen togettier is completely missing in the police record and the same comes f-or the first time before the Court when evidence of Chamanlal (PW-4) and Sonbai (PW-1) were recorded. S.I., Komal Diyawar (PW-11), is the Investigation Officer. He has conducted the entire investigatioti. He very clearly admitted in Para-8 of his evidence that no witness ever told Btei that deceased- Lallu @ Lalendra was seen in the company of the appellant on the date of the incident or at ahy point of tirae prior to the said date. On appreciation of the evidehce ofChsimanlal (PW-4), Sonbai (PW-1) and Komal Diyawar :..;'..;'ii»'t" ^^:. •'•::?'^^ lv.'^i n i w Criminal Appeal No. 655 of 1995 (PW-11), we find that the theory of last seen together was brought into picture for the first time when the Court evidence of PW-1, PW-4 and PW-11 were recorded during the trial. We are of the view that this was a creature of afterthought and the Session Judge fell into error on relying on the circumstance oflast seen. (11) So far as conduct of the appellant of absconding immediately after the occurrence is concerned, in Thimmct -Vs- The State of Musore, AIR 1971 SC 1871, the Supreme Court held that "Though the conduct of accused in absconding immediately after the occurrence of the offence is relevant evidence, as indicating to some extent his guilty niind,-it is not conclusive of that fact because even innocerit person when suspected may be tempted to such conduct to avoid arrest." Therefore, the above piece of t^ • evidence cannot be held to be conclusive proof of the fact that the appellant had committed murder'of the deceased. (12) Apart from the above, there are many flaws in prosecution case. Sonbai (PW-1) riientioned in the missing report that the deceased was wearing blue half-shirt and red half-pant. The police officefs found that all the cloths over the body of the ^eceased were burnt. Eyen after that they seized a blue coloured half-pant and -same was identified to,be that of the deceased vide '^" • ~' """ " ~" "' -'"~' ~ identiiication memo Ex.-P/S. We are unable to understand the relevance of seizure as also identifi.cation of the half-pant. When ,the deceased waswearing red half-pant at the time ofthe incident, -how blue half-palit was seized and was put for identification. •^' ^. ISi:i Criminal Appeal No. 655 of 1995 Moreover, when the police itself said that the cloths were burnt, how the un-burnt half-pant was seized from the place where the dead body was found. Difference in the colour of half-pant makes itsseizure and identification doubtful. •» (13) In the above facts and circumstances of the case, we are unable to sustain the conviction of.the appellant on the above set of circi.unstantial evidence. We are of the view that most of the circumstances were not proved by the prosecution and the solitary circumstance relating to absconding of the appellant was capable of being explained. Therefore, the chain of circumstantial evidence was not coniplete and it was .not a case in which it can be safely concluded that it was the appellant and none else who cpmmitted the murder of the deceased. r (14) For the foregoing reasons, the appeal is allowed. The conviction and sentenees awarded to the appellant u/ss 364, 302 & 201 IPC are set-aside. The appeUant is-'acquitted of fhe charges framed against him. It is stated that the appellant is on bail. His baU bonds are cancelled and surety stands discharged. Sd/- Sunil Kumar Sinha Judge .^_L-.^—— --- — Sd/- R.S.Sharma Judge 't*l. |vaiLu,