@@ IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH er.A. No.é§x\ OF 2001 APPELLANT Vishwanath Ghasi Aged about 35 years S/o Aghnu R/o Village Surbena Police Station Kusmi District Surguja CHHATTISGARH ‘VERsus The State of Chhéttisgarh RESPONDENT VT CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PRogEDURE 1973 ‘ Xi—HC—78 HW,W,W Wm #OO‘CHVOOQOQ#QQ¢C‘{9%\ 200 WW(W) ‘ WWW ‘ WWW WWEWW WMWW ézmm DIVISION BENCH -: HON’BLE MR. L.C. BHADOO, Ag. OJ. & nownm MR. 3mm. KUMAR aw. 05‘.02.2oo7 Ku‘ Nirupama Bajpai, ominsel for the appellant. I, Shri M.P.S. Bhatia, Pane] Lawyer for the State. u ‘Argumcnts heard. 0131 judément dictated 011 Boanl as follovVS: Pé L.e.nhadoo,uAg.c.J.. (I) This appea°1 is direcmd against the judgment of convicn'on mid onier of sentence dated 10. 10. 1998, passed by the Filst Addl. Sessions Judge, Ambikapur, in Sessions Trial No.272] 1993 whereby the learned Addl. Sessions Judge, Ambikapur, Distt. Sarguia. after holding the accused appellant guilty for the commission of the o§ence der sections 302 and 397 IPC, sentenced him to undergo imp ' nment for life. (2) The case of the prosec tion in brief is that P.W.1 Jhair Nageshia gave Merg intimatio (Ex.P1/A) in the Police Station of Kusmi to the eKect that his ne hew Samu alongwith Deonamyan, went to village Kamalapur to sell the Bamboo but he did not Ieturn. The next day momin , Deonarayan came and informed \ § z , . 1 i i I X \ l x ‘2' ' 't t 1’, 1" ,w P.T.O. S l l 14 xr-HC—78 ig\ WW, WWI—é, W3? , (y A gin/m WW .......... O ...‘..‘ 00‘ W 200 Wm<W> WWEfWIPw mmmm ~1" éxwm him that after commith'ng th: murder, the body of Satnu has been thrown in Dand on which he along with Karma, Dhanna, Budhu Aghnu, Handu, went to the: Band They saw that the bodv of Satnu was lying there, bloocl‘vyas coming out of his mouth. there were injuries on the chest. e musical instrument (Madar), one Coconut and a container (J rkin) were lying there. 0n mceipt of this merg intimation, the Sta ' n House O$cer of Police Station leit A u f \ for the scene of; oocunence. He seized one blood stained Chhadar. blood stained soil and plain oil n‘om the place ofoocunence under one bag, one musical instrument (Madar) made of the leather, ne container (Jerkini and one pair of cloth shoes from the place occunence. During invesn‘gation, in police custody, the accused ave the memorandum (EXP—4) and in pursuance of the memoran given by the accused, an Axe was d Iecoveled at his instance er Ex.P-5. One Lungi and one d Banian were seized under EXP-6; Six currency notes of each Rs.10/- denomination, total amounting to Rs.60[-, were seized K \ under Ex.P-7. The body of Satnu was sent for postmoxtem \\\\examination to Primary Health Center, where Dr.T.Sai (P.W.5\ \ EXP—2. Under Ex.P-1. he t \ P.T.O. ~ x P.T.O‘ n s ' ,EW’WW,W 3a W, m, W Q9. G . 64 i 19} . WW” mmwiarw) IT'T 200 .\ mmwm «- ’%# mmffww %3TE<maTr%¥r c ' He opined that the cau§ é‘trZnmnauon. The mode of d o$cer gave Dehati Nalishi‘ £ Information Report Ex.l2 v o§ence num'shable under se prepared. After giving not‘me to the 1 The site nlan Ex.P-13 was body of Satnu EXP. 15 was prepared. Panchas, the inquest on the After completion of the investigation, the chaige sheet was med in the Court of Judicial Magis tum committed the case learned met Addl. Sessions Judge, Ambikapur {mm Where the received the case on transfer. ‘3! The prosecution in on accused oersons, examina accused Vishwanath and c uls 313 Cr.P.C. in which ‘ appearing against them. T1 1e learned Add]. Sessions Judge, after hearing the respective cmmsel for the panics, convicted the onducted the yostmortem and piepared the report vide Ex.P- 10. e of death was asnhym‘a due to .eath was homicidal. The invesn‘gating y Exp-11 based on that the Pint 7as registexed for commission of the bean 302 mad with section 34 of 1pc. " hate, First Class, Ambikapur‘,‘ who in to the 'Court of Sessions Judge, ler to establish the charge against the l six witnesses. The Statement of o—accused Jowa Mohli wele recorded they denied the prosecution evidence “in P.T.O. ‘ X’I—HC—78 39 ’ GAw/{M WW Wm<W> m 200 WWW WWW Wzfwm vLb mm%wm $Wm accused Vishwanath. however, acquitted the co-wcused Jowa MohJi. (4) We have hgani Miss. N'imparna Bajpai, Advocate, appearing on behalf of the aypellarh é‘md Mr.M.P.S. Bhau'a, Panel Lawyer, appearing on behalf of the S V‘, . Niruyama Baypal argues that ttm (5) ‘ At jhe out set, Mi conviction is based on cim $ or ocular evidence regarding involvement of accused appellant m crime in quesu'on i.e. the eceased was last seen alive in the Hant, by P.W.2 namely Deonarayan. company of the accused ap‘ She further argues that in qhe cross examination of Deonamyan, he stated that he alongwith :Eatnu after selling of Bamboo went to the house of accused Vishwemath where three of them consumed liauor, thereafter. they went to the house of Bigwa. By that time, he was under the iniluence of liquor and was feeling drowsy. At that l' e, the accused Vishwanath and deceased Samu were talking for going to village Khajun’ for fetching the Musical . instrument (Medan. He in the meantime went in skep. Therefore, \\ \ te. stanh‘al evidence. There is no dixect she contends that them is no legal evidence on record to establish P.T.O. “an, \ X’l—HC-78 Wm otg:(~‘éo\..‘€é(.(o/‘O‘I WW(W) H? 200 X1~HC—78 Wm llF RW,W,W .;.§.’x;.e..md§>1Fl? 200 .\ Wm<W> WWW mTmW wwwm ~. é A WW1?W i fwfr tFvR’R %3%m i does not lmow where they evidence of Deonalayan ‘that in fact he saw the accused iof the Bigwa together for iabove evidence of this connect the accused with the R8) As per the settled i s Ecrime based on the last s between the death ofthe d iwith the accused. In the ‘others -vs- state ofJam €SCC 45 the Apex Court held into play where the time-gap accused and the deceased deceased is found dead is other than the accused being impossible. It would be in cases where there is no the accused and the deceased had gone. Therefore, if we smut: at the (P.\V.2), there is nothing in his evidence and the deceased leaving the house going to village Khagun Apart mm the witness, them is nothing on laconi to crime in question. , in order to connect the accused in en theory, there must be proximity ased and When-he was last seen alive tter of BQM Auas Bodha am! and Kashmir Qrtcd in l2002) 8 that “the theory of last seen comes between the point of 1' e when the were seen last alive and when the so small that possibility of any person the author of the crime hemmes hazardous to come to a conclusion of guilt other positive evidence to conclude that were last seen together”. P.T.O. WW,WW,W ‘ . Cm 54%! WW 000.0.... W 200 WW<W> Waniém? WWW wwwm “(7F mwefwm $Wm (9) In the matter of Subhash Chant! —Vs- 9t t ntRgasthan. renarted in IQOOQ 1 SCC 702, the Apex Court held that “to 1 constitute evidence of last deMtclv yermit an inferency accused were seen together at a point of time in close proximity with the time and the date of commission of crime. (10} Again, in the matter A Mahesh reported in 2003) ‘ merely being seen last toge er is not enough. What has to be 1 established in a case of this that victim had been done to must be aware as also pmxmate to the time of being last seen together. (11) In the light of the above available on reconi, there is nothing on record exceyt the evidence of P.W.2 Deonaravan to the conversation of the accused and the deceased that they will go to village Khajuri for bringing a musical insu'ument. ln mot, this witness went in sleet) on beii V - Stm of Karnatalca —Vs- M.V. SCC 353. the Apex Court held that tum is dehnite evidence to indicate death of which the respondent is or eEect that this witness heaid the P.T.O. seen together, the evidence must being drawn that the victim and the principle, ifwe examine the evidence lg intoxicated and he does not know ‘f X1»HC—78 WW FFF 200 .\ WW(W) WWW l WWW g mmwm é $” mmfr'f—éd’rm %Wm whether the accused Vishwanath and Satnu had left togethcr or not. Apart mm that, there iis no evidence to indicate that in any iway, the accused was having any grudge against the deceased to nm‘sh him. i112) Mr. Bhatia submits that cunency notes were looted from V‘,‘ , the deceased, as per the evidence of P.W‘3 Laman Ram, this amount was seized hum the co'accused Jowa Mohli under EXP-7 A and not mm the accused Vishwanath and hom the accused 3Vishwanath, one currency note of Rs.50[- and another cunency inote Rs.10[— total amounting to Rs.60[~ was seized under Ex.P-8. ‘But theie is nothing on xecoxd to show that those currency notes were of the deceased. As far as the recoveiy of the Axe is concerned, that is also no help to the prosecution for thetieason that them is no evidence that the Axe was used for commission of the on‘ence. In fact, as per the medical evidence, Satnu died on account of Asphyxia due to strangulation, therefore, there is nothinn that on the basis of mcovexy of Axe which is a common article found in the village site, the accused be connected with the crime in question. \ PAT.O. 3am,aaime,%amgt . CYQ gu/ fox ..... . ........... XI-HC—78 mw,m,m ~ CVO 6k.(.<.>'W 200 WW<W> Hwmrfém? ‘ wmm mmwm f ?)~ WW§WW %3¥%11311%¥r crime uls 302 cannot be sustained committed the crime in auest y i (i14yi ln‘the Iesult, the ap same is allowed. He is acqu é a3) In the result, the judgment of the 11ia1 Court convicting the accused for commission of the \ any legal and clinching evidence in as the same is not based on Older to establish that the elocused was the only person, who i of the appellant succeeds. The i and 397 IPC. He is said to b he be released forthwith. if no Sdl- AActing Chief Justice n. under the charges of sections 302 in detenn'on since 1998. Therefore. required in any other case. Sd/— SUNE. KUMAR SINHA Judge PTO. /