HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON’BLE Mr.T.P.Sharma & HON’BLE Mr.R.N.Chandrakar, JJ. Criminal Appeal No.89? of 2006 Appellant Mahadev S/o Ayatu Dhurwa, aged (In Jail) about 30 years, Occupation Agri‘gulturist, R/o Village Pengaraspara, Netanar, Police Station Darbha, Distt.Baster (C.G.) Versus Respondent State of Chhattisgarh through Police Staton Darbha, DiettBaster. (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Mr.Ashok Dixit, counsel for the appellant. Mr.D.K.Gwalre, Govt.Advocate for the State/respondent. JUDGMENT (Passed on 16$ August, 201 1) Per T.P.Sharma, J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 29.11.2006 passed by the Sessions Judge, Baster at Jagdalpur, in Sessions Trial No.133/2006, whereby & whereunder learned Sessions Judge after holding the appellant guilt for commission of culpable homicide amounting to murder of Budru convicted him under Section 302 of the l.P.C. and sentenced to undergo imprisonment for life and to pay tine of Rs.200/—, in default of payment of fine to further undergo R.l. for two months. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. . As per case‘of the prosecution, Budru was residing with his wife Parvati (PW—7) separately from other members of the family. On 2.3.2006 at about 7 p.m;~ the appellant came to the house of Budru, he took Budru with him and thereafter, Budru did not return back to his house in the intervening night of 2/3.3.2006 and on second day morning his injured dead body was seen. Panchayat was convened and being asked the appellant made extra judicial confession that he has-committed homicidal death of Budru. Meanwhile the villagers informed the police vide Ex.D/1 and police came to the village. Arjun (PW-1) lodged dehati nalsi vide Ex.P/1. Merg was recorded vide Ex.P/2. Finally F.l.R. was lodged vide Ex.P/13 and numberi merg was recorded vide Ex.P/14. Investigating officer after summoning the witnesses vide Exs.P/3 and P/4 prepared inquest over the body of deceased Budru vide Ex.P/5. Bloodstained and plain soil were recovered from the spot vide Ex.P/6. Dead body of the deceased was sent for autopsy to Community Health Centre, Darbha vide EXP/16, where Dr.A.K.Jena (PW-6) conducted autopsy vide EXP/22 and found following injuries:— (i) Incised wound over left side of the head of 6.5 cm. x 5 cm. x1cm. (ii) Contusion over left side of the waist of 2.5 cm. x 1 cm. (iii) Cut fracture of occipital bone and haematoma was found in the brain. Brain and membrain were found cut. Cause of death was shock. During the course of investigation, the appellant was taken into custody, he made disclosure statement of axe vide Ex.P/7 and same was recovered at his instance vide Ex.P/8. Bloodstained cloth of the appellant was seized vide Ex.P/9. Sealed cloth of the deceased was seized vide Ex.P/10. Spot map was prepared by investigating officer vide Ex.P/16. Patwari also prepared spot vide Ex.P/11. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 and after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Jagdalpur, who in turn, committed the case to the Court of Sessions, Baster at Jagdalpur. t 'r'\ 5. ln order to prove the guilt of the accused/appellant, the prosecution has r' examined as many as eight witnesses: Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, in which g1 ‘x @ he denied the circumstances appearing against him and pleaded innocence and false impiication in the crime in question. 6. After providing opportunity of hearing to the parties, Iearned Sessions Judge convicted & sentenced the appellant as aforementioned. 7. We have heard Iearned counsel for the parties, perused the judgment impugned and record of the triai Court. 8. Learned counsel for the appellant vehemently argued that conviction is based on circumstantial evidence of extra judicial confession and last seen theory, but the prosecution has not proved the aforesaid circumstances against the appellant. Evidence of Arjun (PW-1), Dashru (PW-3), Parvati (PW-7) and Dashmi (PW-8) is not sufficient to prove the aforesaid circumstances, therefore, conviction of the appellant is not sustainable under the law. 9. On the other hand, learned State counsel supported the judgment impugned and argued that evidence of Dashru (PW-3) and Parvati (PW- 7) relating to last seen theory and extra judicial confession are sufficient for drawing inference that only the appellant has committed the aforesaid offence. Learned counsel further argued that after appreciating the evidence available on record learned Sessions Judge has convicted and sentenced the appellant as aforementioned. 10.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11.ln the present case, homicidal death of as a result of fatal injury found over the head of the deceased has not been substantially disputed on behalf of the appellant, even otherwise, it is also established by the evidence of Dr.A.K.Jena (PW—6) and autopsy report EXP/22. Death of Budru was homicidal in nature. 12. As regards the complicity of the appellant in the crime in question, (W conviction is substantially based on the circumstantial evidence. ln case of conviction based on circumstantial evidence, the prosecution is 3‘ ‘3 \'y V )‘u @ required to satisfy the following circumstances, as held by the Supreme Court in the matter of Kusuma Ankama Rao v. State of A.P.1, i. the circumstances from which the conciusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may be’ established; ii. the facts so established should be consistent only with the hypothesis of th guilt of the accused, that is to say, they should not be explainable on any other hypothesis cet that the accuse’d is guilty; iii. the circumstances should be of a conclusive nature and tendency; iv. they should exclude every possible hypothesis except the one to be proved; and v. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the cused and must show that in a u ll human probability the act mst have been done by the accused. 13.ln the present case, the prosecution has examined Pavati (PW-7), wife of the deceased, on the point of la seen theory. As per her evidence, he was residing along with her husband Budru separately from other members of the family. Just before the incident at aout 5 p.m. the appellant came to her house and called her husband and took her husband with him, thereafter her husband did not return back to her house an on second day morning injured dead by of the deceased was found in the village. She hasfurther eposed that panchayat was convened and before panchayat the present appellant has made extra judicial confession, but in her cross-examination she has deposed that at the time of panchayat police came to village and the appellant has admitted his guilt before panchayat and before police. Defence has not suggested anything to this witness relating to last seen theory or the fact that the present appellant has not taken the deceased with him. 12008 AIR scw 4669 e exp ac r st s b d od d 14.As per evidence of Dashru (PW-3), villagers noticed the murder of Budru, then they convened panchayat, the appeilant was also present in the panchayat, he made extra judicial confession that he has killed Budru and thereafter Arjun, Kotwar, Sarpanch and other persons went to the Police Station and lodged the report. ln his cross—examination, he has admitted the fact that at the time of panchayat, police also came to the village. He has specincally deposed in para 2 of his cross-examination that the appellant has admitted his guilt that he has killed Budru. 15.Last seen theory and extra judicial confession are weak type of evidence and if it is corroborated from independent sources, then same may be sufficient for conviction of the accused. The time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. While dealing with the question of evidentiary value of last seen theory and nature of explanation that when the accused parted the company of the deceased the Supreme Court in the matter of State of Goa v. Sanjay Thakran and another and another connected appealz has held that in case of last seen together the proof’bf last seen together would be relevant if the prosecution establishes that in the intervening period there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime. Para 34 of the said judgment reads thus:- “34. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and 2(2007) 3 scc 755 the crime coming to Iight is after a considerable Iong duration. There can be no fixed or straightjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that Iikelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.” 16. While dealing with the same question, the Supreme Court in the matter of Sahadevan alias Sagadevan v. State reprented by Inspector of Police, Chennai3 has held that if the prosecution on the basis of reliable vidence establishes that the missing person was last seen in the company of the accused and was never seen thereafter, then it would be obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. Para 19 of the said judgment reads thus:- “19. The last circumstance relied on by the courts below pertains to the stand taken by the appellants in the trial as to parting company with Vadivelu. Here we must notice that as discussed hereinabove, the prosecution has established the fact that Vadivelu was seen in the company of the appellants from the morning of 5.3.1985 till at least 5 p.m. on the same day, when he was brought to his house and thereafter his dead body was found in the morning of 6.3.1985. Therefore, it has becoe obligatory on the apllants to Satisfy the court as to how, where and in what manner Vadivelu parted company with them. This is on the principle that a person w is last found in the company of another, if later found missing, then the person with hom he wa last found has to explain the circumstances in Which they parted company. In 3(2003) 1 scc 534 es e m pe ho w s the instant case the appellants have failed to discharge this onus. In their statement under Section 313 Cr.P.C. they have not taken any specific stand whatsoever. In the evidence of PW—25, it is elicited that on 5.3.1985 in the afternoon when Vadivelu was produced before the said witness, he after interrogation allowed Vadivelu to go, but then it is found from his evidence that he instructed A-1 to keep a watch over Vadiveiu. in such circumstances, it was incumbent upon A-1 to have explained to the court in what circumstances they parted company. He has not given any explanation in this regard. On the contrary, the prosecution has established the fact that on the very day at about 5 p.m., Vadivelu was brought to the house of PW-1 by the appellants which was seen by PW—5. This part of the evidence of PW—5 has gone unchallenged in the cross- examination and, therefore, we will have to proceed on the basis that, what is stated by PW—5 in this regard is true. If that be so, the prosecution has established the fact that on 5.3.1985 at 5 p.m. Vadivelu was still in the company of these appellants and, therefore, in the absence of any specific explanation from the appellants in this regard, and in view of the other incriminating circumstances against the appellants having been proved by the prosecution, an adverse inference will have to be drawn against these appellants as to their part in the missing of Vadivelu. At this point, it may be relevant to note that though no specific stand has been taken by the appellants as to their parting company with Vadivelu, in their statement under Section 313 Cr.P.C., it is seen from the evidence of PWs.1 and 5 that A-1 told the said witnesses on the night intervening between 5-3-1985 and 6- 3—1985 that Vadivelu had escaped from the Police Station when he was allowed to sleep in the verandah of the Police Station. This explanation given by A-1 to PW-1 which was also heard by PWs.5 and 14, clearly shows that the same is totally false and obviously was an excuse made by the appellants to conceal the true facts and, therefore, this circumstance of A-1 making a false statement to PW-1 can also be taken as a circumstance against the appellants, in establishing the appellants‘ guilt. This Court in more than one case has held, that if the prosecution, based on reliable evidence, establishes that the missing person was last seen in the company of the accused and was never seen thereafter, it is obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. See Joseph v. State of Kerala [2000 5 SCC 197]. Therefore, we are in agreement with the finding of the courts below that circumstance No.7 also stands established against the appellants." 1 7.While dealing with the evidentiary value‘of extra-judicial confession made under Section 24 of the Evidence Act, the Supreme Court in the matter of Baldev Singh v. State of Punjab‘ has held that extra, judicial confession is also evidence and admission of guilt and once it is proved to be true, then same may be sufficient for conviction. 18.While dealing with the same question, the Supreme Court in the matter of Mohd. Azad @ Samin v. State of West Bengal5 has held that if extra-judicial confession made voluntarily and truth in a tit state of mind then it can be relied upon and confession will nave to prove like in any other evidence. Para 22 of the said judgment reads as under:— “22. An extra-judicial confession, if voluntary and true and made in a tit state of mind, can be relied upon by the court. The confession will have to be proved like any - other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. lt is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. lt would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon the conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra—judicial confession can be accepted and can be the basis of conviction if it passes the test of credibility" ‘ 19.ln the present case, evidence of Parvati (PW-7) inspires confidence relating to last seen theory and evidence of Dashru (PW-3) inspires confidence relatingto extra judicial confession made before panchayat and same was safe to rely. The appellant called Budru from his house and took Budru with him and thereafter Budru did not return back alive and on second day morning his injured dead body was found. As per 42009 AIR scw 3730 52009 AIR SCW 752 ar;w @ evidence of Dashru (PW—3), the appellant has made extra judicial confession before panchayat that he has killed Budru. 20.If the aforesaid circumstances are considered together, then only inference would be possible that the present appellant has committed homicidal death amounting to murder of Budru and none has committed the aforesaid offence. Same is also sufficient to exclude the possibility of innocence of the appellant. 21.After appreciating the evidence available on record, learned Sessions Judge has convicted and sentenced the appellant as aforementioned. 22.0n close scrutiny, we do not find any illegality or infirmity in the judgment impugned warranting inference. 23.Consequently, the appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. ’ Sdl- Sd/- l Rangnath Chandrakar l T. P. Sharma l Judge ‘ Judge