HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha J. Criminal Appeal No. 910 of 2003 APPELLANT Raju Patel S/o Barat Patel, aged about 29 years, Residence of Chindwar Para, Village Bhilai Khurd, O.P. Urga, P.S. Korba,,Distt. Korba (Chhattisgarh) Versus RE$I36NDENT State of Chhattisgarh Through Police Station Kotwali Korba, Distt. Korba (C.G.) (Appeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Mr. Yogeshwar Sharma, Counsel for the appellant. Mr. Ashish Shukla, Govt. Advocate, for the State. JUDGMENT (12 .o5.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Appellant Raju Patel stands convicted u/s 302 IPC and sentenced ‘ to undergo imprisonment for lifeand to pay fine of Rs.1 ,000/—, in default of payment of tine to further undergo S.l. for 2 months, by the Additional sessions Judge, Korba (C.G.) in Sessions Trial No. 163/2003 on 315‘ of July, 2003. (2) The facts, briefly stated, are as under:- E) Deceased Annapurna, a girl aged about 15 years, was the sister-in—Iaw (Sea/I) of the appellant. She was missing since r / l/ 29.12.2002. The allegations are that on 29.12.2002, the appellant l/ had visited his father—in-Iaw’s place and when he left in the evening, / / / , 2 Criminal Apgeal N0. 910 of 2003 @ Annapurna accompanied him and thereafter her whereabouts were not known and ultimately her. dead body was recovered on ‘5.1.2003. Devki Kumari Patel (PW-5), Vijay Patel (PW—6), Ramdulare Patel (PW-'9) and Leeladhar Prasad (PW-15) had seen the deceased in the company of the appellant on 29.12.2002. lt is also the case of prosecution that on 4.1.2003, the appellant made extra-judicial confession before Bhajoram Patel (PW-1), Tikamlal Sahu (PW-3) and Rathram Patel (PW-4). A missing person report was lodged by the father of the deceased namely Bhajoram Patel u f (Pl/V4) in P.S. Balconagar on 4.1 .2003 at about 14.00 hours, which was reduced«into writing in Roznamchasahna No. 194 and missing person report No. 1/2003 (Ex—P/13-C). After the extra—judicial confession, when the dead body of the deceased was found on 5.1.2003, Bhajoram Patel (PW-1) gave merg intimation (Ex.—P/3), on which, the police came to the scene of occurrence, gave notice (Ex.—P/2) to the Panchas and prepared inquest (Ex.—P/1) on the body of the deceased. The dead body was sent for its post-mortem to P.H.C., Korba under Ex.—P/8, where the post—mortem examination was conducted by Doctor A.D. Purena (PW—14), who prepared his report Ex.-P/13. The Autopsy Surgeon opined that the cause of death was asphyxia due to strangulation and it was homicidal in nature. He also expressed that rape may have been committed against the girl which may be confirmed by further investig ation. C5 ,l l3) After completion of usual investigation, the charge-sheet was filed i;n'the l Court of Chief Judicial Magistrate, Korba, who in turn committed l 1 l i l l / 3 Criminal Appeal No. 910 of 2003 the matter to the Sessions Court, Korba, from where, it was received on transfer by the Additional Sessions Judge, Korba, who conducted the trial and convicted and sentenced the accused/appellant as aforementioned. (4) i Admittedly, there are no eye witnesses in this case and the comliiction of the appellant is based upon the circumstantial evidence of Iast seen together and the extra-judicial confession made by the appellant ‘ to the father of the deceased and the other witnesses. "ci‘ (5) Mr. Yogeshwar Sharma, Iearned counselgappearing on behalf of the appellant, has. argued that none of the circumstances have been proved against the appellant, therefore, the appellant deserves to be " acquitted.‘ (6) On the other hand, Mr. Ashish Shukla, Iearned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by,the Sessions Court. (7) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (8) In the matter of Dhananjoy Chhattériee —Vs- State of W.B, (1994) 2 SCC 22, the Apex Court held that “In a case based on circumstantial evidence, the circumstances from which the conclusion'of guilt is to be drawn have not only to be fully established but also that all the 4 circumstances so established should be of a conclusive nature and // consistent only with the hypothesis of the guilt of the accused. Those /.\ ,circ'umstances ‘ should not be capable of being explained by any other l / l / / l l l / l l 4 Criminal Appeal No. 910 of 2003 hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to Ieave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that iegaliy estabiished circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence Iest suspicion takes the place of proof.” (9) Vin Bodh Raj alias Bodha and others —vs- State of Jammu and Kashmir, AIR 2002 SC 3164, the Apex Court Iéid down that there is no doubt tifat conviction can be based solely on circumstantiai evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: 1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may’ be established; 2) the facts soestablished should be consistent only with the hypothesis of the guilt'of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3) the circumstances should be of a conclusive nature and tendency; 4) they should exclude every possible hypothesis except the one to be proved; and 5) 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 accused and must show that in all human probability the act must have been donev by thé accused. ”About the last seen theory, the Apex Court held that the last seen theory l. cpmes into play Where the time gap between the point of time when the a l l l l l ccused and deceased were seen last alive and when the deceased is i 5 found dead is so small that possibility of any person other than the accused being the author of crime becomes impossibie. it would be difhcuit in some cases to positively estabiish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen togfether, it would be hazardous to come to a conclusion of a guilt in those Criminal Appeal No. 910 of 2003 t cases; u *5 (10) The above view was further reiterated By the Apex Court in the matter éf State of Goa —vs- Sanjay Thakran & anr., (2007 (4) SBR 321. (11) Now we shall firstly consider the circumstance of last seen together. Bhajoram Patel (PW—1) deposed that on 29.12.2002, the appellant came to his house and in the evening, at about 7.00 p.m., he left his house saying that he is going back to his village. When they noticed that deceased Annapurna was missing, his grand-son Ramsagar (appellant’s son) told that Annapurna has gone along with his father. PW—5, Devki Kumari Patel, is sister of Annapurna. She also deposed that she had seen Annapurna going along with the appellant in the evening of 29.12.2002. She further deposed that when her father was searching Annapurna, she has told all this to him. The other witness of last seen is Vijay/Patel (PW- 6), who deposed that on 29.12.2002, the appellant andthe deceased met him on the way. He asked the deceased as to where she is going, on l l which, she replied that she is going to Bhilai with her brother-in-law and Lg he should inform this to her mother. Thereafter, he went to the house of Annapurna and informed all this to her mother Rambai (PW—2). Another l r / 6 Criminal Appeal N0. 910 of 2003 witness of last seen is real brother of the deceased namely Ramdulare Patel (PW-9). He deposed that on 29.12.2002, when the appellant and the deceased were going toBhiIai, his father Bhajoram (PW-1) said him to " dropthem to Bhilai on his motorcycle. He went and asked the appellant to go on his motorcycle but the appellant denied and the appellant and the deceased went together. PW-15, Leeladhar Prasad, deposed that on 29.12.2002 at about 7.00 p.m., he saw the deceased and the appellant ‘i near Balco bus stand. He had a talk with them. He saw the deceased goung With the appellant on an auto rickshaw He had told all this to the brother of the deceased Ramdulare Patel (PW 9) a « (12) If we rely on the testimonies of these witnesses, it would be evident thattthe very fact of deceased Annapurna going along with the appellant was well within the knowledge of the family members of the deceased, including her father Bhajoram (PW—1). Bhajoram made a missing person report on 4.1.2003 at about 14.00 hours, which is proved by entry of Roznamchasahna No. 194 (Ex.—P/13—C). ln this document, there is no whisper about the fact that the deceased, in fact, had gone with the J . appellant. Rather it comes in the report that on 29.12.2002, the appellant had visited his house and he left the house in the evening by saying that he is returning back to his village. If the fact relating to seeing the deceased in the company of the appellant was correct, there ’must have been some indication in this report. Not only this, the-evidence of the ‘ prosecution witnesses would show that the familylmembers of the l deceased were searching the deceased and upto 4.1.2003 they did not lgejt any clue about her and ultimately they came to know about the ,l dejceased when the appellant made extra-judicial confession before them, ll l’i )(I \/\ 7 @ Criminal Appeal N0. 910 of 2003 including PW-1, Bhajoram on 4.1.2003. For the above reasons, in appreciation, we do not find these witnesses to be reliable on the circumstance of last seen together. Moreover, the deceased was seen ’alive on 29.12.2002 and her dead body was discovered on 5.1.2003, therefore, there is a iong time gap between the deceased said to be seen in the company of the appellant and the discovery of her dead body. Therefore, the circumstance of last,seen together was not established against the appellant. u f (13) As far as circumstance of extra-judicial confession is concerned, that gets falsihed from the contents of Roznamchasahna (Ex.-P/13-C). It comes in Para-7 of the evidence of PW—1, Bhajoram, that when his daughter could not be searched till 4.1.2003, they decided to report the matter to the police. Before lodging the report, they had asked the appellant about the deceased, on which, he made extra-judicial confession before them. Rathram Patel (PW-4), Tikamlal Sahu (PW-3), Ramnath and Suruti were also there. Rathram Patel (PW—4) and Tikamlal Sahu (PW-3) have also stated that on 4.1 .2003, the appellant made extra- judicial confession before them. if we rely on the testimonies of these _ witnesses on this point, it would be established that on the basis of extra- judicial confession, Bhajoram (PW-1) came to know that her daughter was murdered by the appellant, but this fact is missing“ in:the Rozhamchasahna report (Ex.-P/13-C), which was admittedly lodged after theg alleged extra—judicial confession made by the appellant to these witnesses. Not only this, the merg intimation Ex.—P/3 was lodged by Bhaj‘oram (PW-1) on 5.1.2003 but in the merg intimation,in the relevant column relating to reasons of death,it has been shown as “unknown" and l l $ in: 8 Criminal Appeal No. 910 of 2003 the fact relating to commission of crime by the appellant was missing in the merg intimation. Even in inquest (Ex.-P/1) also the above fact is missing, whereas Bhajoram (PW-1) was a party to the inquest and he had received the dead body of the deceased. The fact of extra-judicial confession comes for the first time in the First Information Report (Ex.- P/9), which was registered on 6.1.2003 after completion of the entire investigation. AII the above circumstances falsify the circumstance of extra-judicial confession and in appreciation, for the reasons stated above: we. do not find this circumstance to be proved against the appellant. $ « (14) In the considered opinion of this Court, the learned Sessions Judge erred in law in convicting the appellant on the above circumstances, which were not proved against him. (15) For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is in jail since 6.1.2003. He be set at liberty, forthwith, if not required in any other case. ’5; Sdl- Sunil Kumar Sinha Judge \ Sd/- i Chief Justice ym vatti