Ramesh Kumar S/o Mulchand Aged about 25 years, Occupation Agriculture R/o Village Aani, Police Station Baikunthpur Distt. Korea (C.G.) Versus State of Chhattisgarh Through Police Station Baikunthpur Di‘stt. Korea (C.G. ' _ HIGH COURT OF CHHATTISGARH BILASPUR Criminai Appear No.229 of 2005 PPELLANT: (In Jail) Criminal Appeal No.261 of 2005 APPELLANT: Vinod S/o Shiv Lal Aged about 20‘years, (In Jail) ea Occupation Agriculture R/o Village Aani, Police Station Baikunthpur Distt. Kor (C.G.) Versus State of Chhattisgarh Through Police Station Baikunthpur Distt. Korea (C.G.) AND RESPOND: ENT Criminal Appeal No.264 of 2005 APPELLANT: (ln Jail) Shiv Kumar, S/o Shaiynath Urawn, Aged about 23 years Occupation labourer R/o Aani, Distt. Korea (C.G.) Versus The State of Chhattisgarh Through P.S. Baikunthpur District Korea (C.G.) {Criminal appeals under Section 374 (2) of the Code of Criminal Procedure} RESPONDENT: ‘ resent: P Mr. Prakash Tiwari, counsel for the appellants in Cr.A-.Nos.229/2005 & 261/2005. Mrs. Usha Chandrakar, counsel for the appellant in Cr.A. o.264/2005. Mr. Sandeep Yadav, Deputy Govt. Advocate for the State/respondent. Divisian Bench: - Hon’ble Mr. T.P. Sharma and Hon’ble Mr. R.L. Jhanwar, JJ o'RAL JUDGMENT (17-1-201 1) @ ‘ ) A RESPONDENT: N T.P. Sharma, J: - 1. Since the aforesaid three criminal appeals are arising out of the same dmn of coniction order of see ated 1-2-200 passe the dl esns Jdg Bkunthpu n Ses 7 they ar bng posed of y t comon udgn e s e gm nin & r ete 1-5 p b na Ssons Judg ed Ana g e ho allats gty oms of lp mice o r o Bau sh m n ap Sn red wit f he PC ad d ach f m to d prist fo & ay fne o 00 e e h un w s. . Convon is impugned o e ground hat witut an ota o evidence, th tria ourt as covicted & ntencd the appellants, a thery comitte illegalit. . A p cse he tio 72 ad m ab s dece wa g he ws se e al n f a er sed hs d boy was lw n ad h a isin rt o the dy t ailwy rities Rvrnda Candra P tin Mr itit m v1 xP 8 and t 3is o imtin E33 wa Th Iti r l e ee f o d smn tew . ' wtnese v E re est cd rt te by of h d hd id P nl o f ws sezd om t 3 p pd by t pce . Chaiienge in thes appeais i to th judent of covctio oder of snnce dated 12-200 assed y the Additiol esi e, Bakunthpur, in Session Trial No.7/2004, wereby & wher i s h eunder larne dditiol Sessions Jude aftr lding the ppen uil for cmision cuable hoid amounting t muder f bl in aring comon intention, covicted the pellants under ectio 302 a h Section 34 o t I n sentence e o the unergo, imonmen r life p i f Rs.1,00/— ach, deaut f paymnt of fine to furter dergo Rl for to year s er a of t prosecun, on -9-003 between 7 n 8 p.. Blu ' (ince ased) s sittin with t appellants and a en last tim ive i the company o the ppellants, threafte con day i dea d found near raiay lie n ead ws msg Pas f dead bo were seen by he ra autho aranth h (W-7) Stao anage nmaed erg de E. on he ba f merg, merg intao XP- s recorded. e nvesgating Office eft for th scn o ccurrence an after umoing h iss ide x.P—1, prepad inqu over the hoppe pas of h od te decease without ea ve Ex.-2. Sada f let leg a ie fr the spo vide EXP-. Spot ma was preare he oli i E.P—4. Dehati nals was ret n he ot vid EP- 'O vde x i gisered o t sp e X31. n b —31 E e dy wi the asis of EXP, FtR XP-32 was rcorded. Dead bo thout head w ops t Prm at t hpu as sent for auty o iary Helh Cenre, Baikuntr on 8-9— 3 Ding th course of iestigtio, aeappela Ramesh 200. ur e nvan ccusd/lnt was ke int custo, mad discloser stemen o gandas vie - nd tt f hed f he dead ody, sw an lothe e Ex.- 2. t the instance f accus Resh swor wa recov vid‘ EXP— d chopped a s recovere ve XP-19. Chopped hea juget v & ntenc d 15 d by Aditiona Ssro ue arr i srons Triai No /2004 e ei dis b his m jmet in fl o icti n th t ho y i f e l C h n see nd eb“ ‘ md y tan o dy he e tat f a d EXP11 a ha o a o t b ord d cs vid P 1 A o ed am, d s ered e ' 15 an hed wa d id E d was also sent for autopsy to Community Health Centre, Baikunthpur vide' Ex.P—5A. Dr. S.K. Gupta (PW—5) along with Dr. R. Sharma conducted autopsy vide Exs.P-5 & P-6 and found following symptom: - (1)Body was in seven pieces. (2) Head was chopped from trunk. (3) Both hands were chopped. (4)Chest part was also chopped from waist. (5) Both legs were chopped. (6) Other eieven injuries were also found on the body. The doctors opined that mode of death was cardlo respiratory arrest due o multlple Injuries and death was homICIdai In nature Spot map was prepared by the Investigating Officer Vlde Ex.P-7. Accused/appellant Shiv Kumar was also taken into custody, he made discloser statement of od and same was recovered at his instance vide Ex.P-16. Accused/ appellant Vinod was also taken into custody, he made discloser tatement of gandasa and same was recovered at his instance vide Ex. P-18. Bloodstained shirt Was seized from accused Sushil Kumar vide Ex.P-17. Bloodstained clothes of the accused/appellants were seized vide Exs.P-20, P-21, P-22, P-23 & P—24. The accused were arrested vide Exs.P-25 to P-28. . Seized articles were sent for chemical , examination vide Ex.P-1O and presence of blood on the clothes seized from the appellants and on the weapons seized from the appellants was confirmed vide report EXP-34. . tatements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Baikunthpur who committed the ase to the Court of Sessions, Ambikapur from where learned Additional Sessions Judge received the case on transfer for trial. . In order to prove‘ the guilt of the accused, the prosecution has examinen as many as fifteen witnesses. The accused were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. After affording opportunity of hearing to the parties, learned Additional Sessions Judge while acquitting co—accused Sushil Kumar convicted & sentenced the appellants as aforementioned. s t r s S c d . . We have heard Iearned counsel for the parties, perused the judgment impugned and record of the trial Court. . Mr. Prakash Tiwari, Iearned counsel appearing on behalf of appellants Ramesh Kumar & Vinod, ‘and Mrs. Usha Chandrakar, Iearned counsel appearing on behaif of appellant Shiv Kumar, vehemently argued that conviction of the appeliants is based on circumstantial evidence and that inorder to sustain conviction on the basis of circumstantial evidence, the prosecution is required to satisfy the following tests: - (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established (ii) those Circumstances should of a definite tendency unernngly pornting towards the guilt of the accused iii) the Circumstances taken cumulatively should form a chain so complete that there is no escape from the concluSion that Within all human probability the crime was committed by the accused and none else; and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 10.Learned counsel for the appellants submit that as per evidence of Munesh (PW-1) & Jeetra‘m (PW-8), the deceased was seen _in the” company of the appellants last time between 7 and 8 p.m. thereafter, his dead body was found on second day. ln order to convict the appellants on the basis of last seen theory, the prosecution is required to prove the fact that time gap between the deceased seen alive in the company of the appellants and recovery of dead body must be so small to exclude the possibility of third person between the appellants &.the deceased, but in the present case, time gap was not so small inter alia time gap was about 12 hours. Considering the criminal activity of the deceased against whom trial of murder was pending and enmity with‘ so many persons, possibility of commission of the offence by other persons cannot be ruled out. Learned counsel further submit that the prosecution was under obligation to prove recovery of head at the instance of appellant Ramesh Kumar by cogent and reliable evidence, but the witnesses of memorandum namely, Bikul (PW—10) & Sukhlal (PW-13) ( ‘ 5 have not supported case of the prosecution and the prosecution has declared them hostile. The prosecution has not examined other witnesses. In absence of evidence of independent witnesses, evidence of the Investigating Officer does not inspire confidence and it is no trustworthy. Suspicion, however grave cannot take the place of legal proof. Therefore, in absence of cogent and reliable evidence, the appellants are entitled for acquittal. Mr. Prakash Tiwari placed reliance in the matter of Sheo Kumar v. State of Chhattisgarh {2009 Law Suit (Chh) 39} in which a coordinate Bench of this Court has held that in last seen theory, an element of identification is an important and strong factor. If either of the party, i.e., culprit or the victim was not identified by a witness of lastly seen saying that they were in the cempany of each other, the circumstances of last seen fails because in that case it would not be established by the prosecution tha who accompanied whom. lf in a case based on last seen together, the identity of the culprit or the victim is doubtful or is not established beyond reasonable doubt, the circumstance shall not be held to be proved an the conviction based on such circumstance cannot be sustained. ‘Mr Prakash Tiwari further placed reliance in the matter of Niranjan Panja v. State of West Bengal {2010 (3) Supreme 783} in which the Supreme Court has held that for pressing into service the theory of ‘last seen together’ the prosecution should necessarily establish the time of death. Mr. Prakash Tiwari also placed reliance in the .matter of Nehru and another v. State of Chhattisgarh {2003 (4) M.P.H.T. 43 (C6)} in which this Court has held that last seen theory comes into play where the time— gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is also small and ‘ possibility of any person other than the accused being the author of the crime becomes impossible. Mr. Prakash Tiwari relied upon the matter of Dilbodh Nagesia v. State of M.P. (now Chhattisgarh) {2004‘ (1) M.P.H.T. 26 (CG)} inwhich this Court has held that in order to establish the crime of murder against the accused persons based on the circumstance of last seen, the prosecution. has to prove that the time-gap between the last seen and murder must be so proximate and so close . . that there should not be any possibility of drawing any inference of innocenceof the accused persons and there should not be any“, possibility of meeting of any one else with the deceased in between. Mr. t . t d l . ' 0 Prakash Tiwari further rened upon the matter of Adalat Pandit and another v. State of Bihar {(2010) 6 SCC 469} in which the Supreme‘ Court has held that Iiability cannot be roped upon the accused on the basis of general statement, even on the basis of Section 34 or Section 149 ofthe IPC. 12.0n the other hand, Mr. Sandeep Yadav, learned Deputy Govt. Advocate appearing on behalf of the State/respondent, vehemently opposed the appeals and submitted that conviction of the appellants is based on iast seen theory and recovery of head at the instance of appellant Ramesh Kumar. The trial Court has convicted & sentenced the appellants on the basis of credible and clinching evidence which is not liable to be, disturbed. 13.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 14.ln the present case, homicidal death of deceased Bablu as a result of fatal chopped injuries has not been substantially disputed on behalf of the‘appellants, otherwise also it is established by the evidence of Dr. S.K. Gupta (PW-5) and autopsy report EXP-6 that death of Bablu is homicidal in nature. i 1 5.As regards complicity-of the appellants in the crime in question, conviction of the appellants is based on last seen theory, recovery of head of dead body of the deceased at the instance of appellant Ramesh Kumar and recovery of weapons and bloodstained clothes at the instance of the appellants. 16.As regards the evidence relating to last seen theory, the prosecution has examined Munesh (PW-1) & Jeetram (PW—8). As per evidence of Munesh (PW-1) -— brother of the deceased, on the fateful day at about 8 p.m. when he was coming from the house of his maternal uncle, he saw that deceased Bablu was sitting with the appellants, he directed his” " brother (deceased Bablu) to go to house on which his brother told him that hewill go after some time, thereafter, his brother did not came back to his house and on second day, mother of Mulchand informed that somebody has killed Bablu and thrown the dead body near railway line. Thereafter, he went along with other persons near railway line and saw the chopped body of the deceased, head was missing. Munesh (PW—1) 'r (i . ir ‘ ~W as also deposed that Bablu had brought the sister of the appellants and on account of the aforesaid dispute, they have killed Bablu. 17.Jeetram (PW—8) has deposed in his evidence that he along with Bablu was moving near the canal, they went near the well where the appellants were sitting, they also sat there and they were discussing, after some ‘ time he went to his house. ln para 4 of his cross-examination, he has deposed that he has seen Bablu last time when Bablu was going towards his house. 1 8. Defence has cross-examined Munesh (PW-1) whovhas admitted in paras 4 & 5 of his cross-examination relating to criminal antecedents of the deceased having enmity and pendency' of one criminal trial of commission of murder of son-in-law of Dallu. He has also admitted that there was no enmity between themselves and the appellants. He has further deposed in para 5 that Mulchand has threatened them that he willw kill Bablu. HoWever, the prosecution has not made Mulchand as accused. He has also admitted in para 4 that the deceased was also keeping one another woman from Village Urumduga. He has admitted in para 5 of his evidence that the deceased had brought daughter of Mulchand i.e. sister of the appellants one year prior to the incident. As per para 4 of the evidence of Jeetram (PW-8), Jeetram has seen the deceased last time while he was going towards his house. This reveals that he has not seen the appellants in the company of the deceased last time. l 19.ln order to convict the accused on the basis of last seen theory, as held in the aforesaid authorities, the prosecution is required to prove the fact that time gap between the fact that the deceased was in the company of the accused and recovery of dead body i.e. commission of murder, is so small to exclude the possibility of third person between the accused and the deceased. But in the present case, evidence of Jeetram (PW-8 shows that he has seen the deceased last time while he was going tOWards his house, completely suffices the fact that the deceased was not seen in the company of the appellants last time. 20.As regards recovery of weapons & clothes and presence of blood on these articles, Bikul (PW-10) & Sukhlal (PW-13) — the witnesses of memorandum & recovery, have not supported the factum of memorandum & recoVery. Seized articles have not been identified by @ h / l» ) l the persons to connect the weapons with the appetlants. Blood was found on clothes and articles as per Ex.P—34, but same has not been proved that it was human blood and blood group of the deceased. In absence of such evidence, recovery of weapons and bloodstained clothes, in the present case, is of no use. .J.S. Maravi (PW-15) — the Investigating Offlcer, has deposed in para 1 of his evidence that appellant Ramesh Kumar has made discloser statement vide Ex.P—12 relating to chopped head of the deceased andw ~- ‘- same has been recovered at the instance of appellant Ramesh Kumar on 9-9-2003 vide Ex.P-19 from the place shown by him. He has further deposed in para 1 of his evidence that chopped head was recovered on 9—9-2003 from jhadi. ln Ex.P-19 it has been mentioned that chopped head was recovered at railway culvert (pul), but this witness has specifically deposed that it has been recovered at the instance of appellant Ramesh Kumar. 22.Bikul (PW—10) & Sukhlal (PW-13) — witnesses of Exs.P-12 & P—19, have not supported case of the prosecution relating to discloser statement and V recovery. The prosecution has declared them hostile. They have ‘ admitted signatures on all documents relating to memorandum and seizure, but they have deposed that same have not been prepared before them and that they have put their signatures at the instance of police. When they were not knowing the nature of documents and the fact that What has been written in the documents, why they have signed on the documents, has not been explained by them. This is not the case in which these witnesses have put their signatures underfear of police. ' ln these circumstances, only the evidence of J.S. Maravi (PW-15) . i i v remains for consideration. ‘ 23.J.S. Maravi (PW—15) has categorically deposed that appellant Ramesh Kumar has made discloser statement of head which is recorded in Ex.P- 12 and at the instance of Ramesh Kumar he has recovered chopped head vide EXP-19 on 9-9-2003. Firstly, chopped body of the deceased without head was sent for autopsy on 8-9-2003, but thereafter as per EXP—19 chopped head was recovered on 9-9—2003 at 10.20 a.m.'and same was also s'ent by the Investigating Officer for autopsy vide Ex.P—5A which was received at 2 p.m.. Autopsy was conducted by the team of doctors at 3 p.m. vide Ex.R-6. /\/ 1 AIR 1996 scw 2943 \ 24.Defence has cross-examined J.S. Maravi (PW-15) in detail, but has not. given any Suggestion rela‘ting to memorandum, discloser statement‘o head and recovery at the instance of appellant Ramesh Kumar. Polic Officers are also normal witnesses, their evidence cannot be discarde only on the ground that they are interested in the outcome of the case, unless interestedness and departure from the procedure is shown. 25.While dealing with the question of evidentiary value of police witnesses, the Supreme Court in the matter of Anil alias Andya Sadashi Nandoskar v. State of Maharashtral has held thatwitnesses being police officers does not by itself create a doubt about their creditworthiness if non examination of Panch witnesses is explained, l V. satisfactorily. Relevant portion reads as under: “indeed all t five rocution witness ho have been amind suport of search and seizu member of th idig ty. Tey are a pole oficals. Th , weer, rule o a h e evidence o police offials has to be discared tha i uffers rom soe nrent inrmity. rudece, wver equires t he evidence of the olice official who are int i the utcome o sult of the ase, eeds o be carefully scruined c n t tiz and ndependently appreciate. The police icial do no suffe fro any biliy to evidence an the ere ft that they ar plice fficials oes not by itsel give rie to ny dbut heir creitworthines. We , carefully nd ritcll alsed e vidnc o all he 5 pice officils. Ther is noting n the recr o so tat ay e em was hosi to the pellan and spite leny cross-examination tir iden‘ha de gth he evces remaned aken thrghout. The ines av eposed in clea terms the dtals of the ra ha wa laid to apprehend h apelant nd the manner i whih e was apprhended. heir ince rardig se and eizur of e apo fr the aplln is sigforard cosisnt an specific. r inspis confidece ad learne coun for appellan nt ben ale to oi out an eriou let ln atal firmit in eir vidence ln ur opion, th actum o searc and ie f the country ma lver fr te cnscis possession of apellnt has e established b te prosecution eyond any reasonable dout. he xplanation gi by the prction, fo the non-examinaion o the two Pach witnesses hic s supprte by the rport Ex. 24 filed by P-4 P.I.- G act evie th od aikwad is stisfaory. The denc on e recr hos tha he raidg pa made sincere efforts to join sw t t in rty th them two epnnt Panchas at te e’f earch and seizure and hey we o joined. The re f" e d v he pse se w exe in p re were s e ran par h ll ic fi ere is hov no f lw tat th f ic d or t t s f m ihe fi Pn hoe, r hat t p s, teresed n o f the re i d offs t r m disat give d m ac e o o d f s a out‘abo t ds have a ciay nay th eee f t ol a e h o od t hw h n on of th tle apt i unsh ou se wtess he d r ei tp tt s te pl a n c h e T evde egn arch se th wens om peat trahtw, nte d It re n n d sel the t has o e b pnt y ss, aoe f, iny th e. o ni e f f h sezur o de revo om h ooU the pa ben y h b b T e ven oseu r t f n , wh i od e W wi indede h timo s t re s y a lso ited as pseutin witnesses an summod ive evience. Howeer, despit diligt effos ma th osecutg agc to ser the hey coul no e locat or tre an hefore, they col not be examie at he ia. In he fce of the fact stated n rort x 24 e correctne of which has remaid virtuall unclleged during the ros miti o PW—4, he nn aminatio f he tw Panchas no sai to e on count of any oblique rean. heir non roductn at t tri thus as not created any dent in the prosecution case. The rosecti canot be ccused of withding se witnesses since it ae eery effort t trace and produce them te trial but ailed o accont of te ct that they ha