HIGH COURT QFCHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. APPELLANTS: RESPONDENT: Criminal Appeal No.266 of 2003 Govind Lal and another Versus StateofC.G. JUDGMENT FOR CONSIDERATION ^i' ^^ Sd/- T.P. Sharma Judge 27-1-2010- HON'BLE MR. JUSTICE R.L. JHANWAR Sd/- ^.L. J^anwar 5udge Post for Dronouncement ofjudgment on 28th Januarv. 2010 plNUII— Sd/- T.P. Sharma Judge ?IN"^& HIGH COURT OF CHHATTISGARH. BILASPUR DIVISIONBENCH AP^ ^ CORAM: HON'BLE MR.T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. APPELLANTS: (In Jail) RESPONDENT: Criminal Appeal No.266 of 2003 1. Govind Lal S/o Kanhaiya Ram Sahu, aged about 37 years, R/o Village Madhi, Police Chowki Siliyari, P.S. Dharsinva, Distt. Raipur (C.G.) 2. Bhaktu Ram S/o Deendayal Sahu aged about 28 years, R/o Village Madhi, Police Chowki Siliyari, P.S. Dharsinva, Distt. Raipur (C.G.) Versus StateofC.G. {Appeal under Section 374 ofthe Code ofCriminal Procedure, 1973} Present: Mr. Somnath Verma, counsel for the appellants. Mr. Rakesh Jha, Deputy Govt. Advocate for the State/respondent. JUDGMENT (28th January, 2010) The followina iudament ofthe Courtwas passed bv T.P. Sharma. J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 16-1-2003 passed by the 3rd Additional Sessions Judge, Raipur in Sessions Trial No.183/2002, whereby & whereunderlearned Additional Sessions Judge after holding the appellants guilty for causing the homicidal death of Kuleshwar amounting to murder & concealing the evidence of criminal case, convicted the appellants under Sections 302 & 201 of the I.P.C. and sentenced each of them to undergo imprisonment for life & pay fine of Rs.10,000/-and to undergo R.i. for five years & pay fine of Rs.1,000/-, in default of payment of fine on both counts to further undergo R.l. forfour months, respectively. 2. Judgment is impugned on the ground that without any credible and clinching evidence the Court below has convicted & sentenced the appellants as aforementioned and thereby committed illegality. 3. Case of the prosecution, in brief, is that Kuleshwar (since deceased) was having illicit relation with the wife of appellant No.1 Govind Lal. Previously, Kuleshwar was working as servant in the house of appellant No.1 Govind and when the fact that Kuleshwar was having illicit relation with his wife, came to the knowledge of Govind, Govind removed Kuleshwar from service, but even thereafter, Kuleshwar continued to visit the house of appellant Govind especially, in the absence of Govind. On the fateful day of 5-3-2002 at about 7 p.m. deceased Kuleshwar came to the house of appellant No.1 Govind, Kuleshwar was in drunken state, son of appellant No.1 Govind namely, Hariram was present in the house, Kuleshwar asked about the appellant & his wife. After some time at about 8.30 p.m. Kuleshwar again came to the house ofappellant No.1 Govind byjumping the wall and started shouting, Govind tried to remove Kuleshwar from his house, appellant No.2 Bhaktu Ram was standing outside the house and some how, Govind succeeded in ousting Kuleshwar from his house. Again at about 10.30 p.m. Kuleshwar knocked the door of Govind, Govind opened the door on which Kuleshwar abused him, Govind draggedKuleshwar inside his room and called co-accused Bhaktu inside the house. Thereafter, Govind along with Bhaktu tied the neck of Kuleshwar with a rope {kasda used for cattle) and caused his death by strangulation. Govind along with Bhaktu took the dead body of Kuleshwar on their shoulders and thrown in the field of Sanatram Verma, thereafter, they went to see the programme. On 6-3-2002, dead body of Kuleshwar was found in the field of Sanatram Verma. Beniram Verma (PW-11) informed Ramprasad (PW-2) that one r @- -.-.-.-..^=;-- ^ ^NNI dead body was lying in the field of Sanat on which Ramprasad along with other persons went to the filed and identified the dead body as the dead body of Kuleshwar, nephew of Ramprasad (PW-2), whereupon Ramprasad went to the Police Station and lodged merg vide Ex.P-20. Dehati Nalishi was recorded vide Ex. P-22. Registered merg was recorded vide Ex.P-24 and finally, registered F.l.R. was lodged vide Ex.P-25. 4. After summoning the witnesses vide Ex.P-1, inquest over the dead body of Kuleshwar was prepared vide Ex.P-2. Spot map was prepared by the Investigating Officer vide Ex. P-4. Dead body of Kuleshwar was sent for autopsy to Medical College Hospital, Raipur vide Ex.P-21. Autopsy was conducted by Dr. S.K. Dadu (PW-15) vide Ex.P-14 and following injuries were found: - (1) Handswere clinching. (2) Multiple abrasions over forehead. (3) Multiple abrasions on antero lateral aspect of right arm. (4) Multiple abrasions on doesum of right hand. (5) Multiple abrasions on left shoulder. (6) Abrasion on left leg anteriorly on upper 1/3rd region. Size 2.5 cms. x 0.5cm. (7) Multiple abrasions on left medial. (8) Abrasion one above other on left shoulder posteriorly. Size 1.5 cms. x 1 cm. & 1 cm. x 0.5 cm. obliquely vertical irregular. (9) Multiple ligature marks on anterior aspect of neck. (lO)Blood was found under ligature marks in huge quantity. (ii)Hyoid bonewas found fractured. Cause of death of the deceased was asphyxia due to strangulation and the death was homicidal in nature. 5. During the course of investigation, appellant Govind was taken into custody, he made discloser statement of rope used for cattle vide Ex.P- 5, he produced the rope after taking out the same from under the dry r ,..'\" ~":^ ^^'^ '-<\. % I ^.JlJ grass {pairawat) and the same was recovered vide Ex. P-7. Blood stained & plain soil were recovered from the spot vide Ex. P-6. Clothes of Govind were seized vide Ex. P-8. Clothes of Bhaktu were seized vide Ex.P-9. Second spot map was prepared by the Investigating Officer vide Ex.P-10. The rope was sent for examination to the doctor and the doctor has opined vide Ex.P-16 that the legislature marks found over the neck of the deceased may be caused by the rope produced for examination. Patwari prepared spot maps vide Exs.P-18 & P-19. 6. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Raipur, who in turn, committed the case to the Court of Sessions, Raipur, from where learned Additional Sessions Judge received the case on transfer for trial. 7. In order to prove the guilt of the appellants the prosecution has examined as many as nineteen witnesses. The accused persons were also examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them and pleaded innocence & false implication. 8. After providing opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced the appellants in the aforesaid manner. 9. We have heard learned counsel for the parties, perused the judgment and record of the trial Court. IQ.Learned counsel for the appellants vehemently argued that conviction of the appellants is based on circumstantial evidence and in case of circumstantial evidence, the prosecution is required to prove the following ingredients: - (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (3) 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 (4)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. In the present case, evidence adduced on behalf of the prosecution is not sufficient for drawing inference that the appellants are the persons who have committed the offence and have concealed the evidence of criminal case. Learned counsel further argued that in the present case, the deceased was not seen in the company of the appellants last time alive and thereafter, he wound found dead. The appellants have not made any extra judicial confession or have not made any discloser statements and the doctor has not opined that the ligature marks found over the dead body were possible to be caused only by the rope recovered at the instanceof the accused. Suspicion however grave cannot take the place of evidence in absence of any credible evidence, conviction of the appellants is not sustainable under the law. Learned counsel placed reliance in the matter of Tarseem Kumar v. The Delhi Administration in which it has been held by the Apex Court that in case of conviction based on circumstantial evidence, motive for committing crime on part of accused assumes greater importance. Learned counsel ,1 AIR1994 SC 2585 / further placed reliance in the matterof Shripad Shivram Kulkarni v. State of Maharashtra in which the Apex Court hasheld that in case of circumstantial evidence, the circumstances must definitely point towards the guilt of the accused. Learned counsel also placed reliance in the matter of Anter Singh v. State of Rajasthan3 in which it has been held by the Apex Court that in case of discloser of facts, the prosecution is required to prove that relevancy of facts discovered can be proved and rest statement given by the accused is not admissible in terms pf Sections 24, 25, 26 & 27 of the Evidence Act. Relevant portion of the \ said judgment reads thus, "......The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by accused's own act. (4) The persons giving the information must be accused of any offence. He must be in the custody of a police officer. (5) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (6) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved....." Learned counsel for the appellants relied upon the matter of Ratan Gond v. The State of Bihar4 in which the Apex Court has held that confession of the accused must be free from threat, promise and inducement. Learned counsel further relied upon the matter of Lakhanpal v. The State of M.P. in which it has been held by the Apex 2 AIR 1981 SC34 3 AIR 2004 SC 2865 4AIR1959SC18 5AIR1979SC1620 Pn88NB -^ ^ Court that confession made to the police first time and then to others is not safe to rely. 11.0n the other hand, learned State counsel opposed the appeal and vehemently argued that unnatural death of deceased Kuleshwar as a result of strangulation/throttling is not disputed. The prosecution has adduced sufficient evidence to show that the appellants were in the company of the deceased and thereafter, the deceased was not seen alive. The deceased was not only in the company of the appellants, but the appellants had called the deceased and took him with them, however, no explanation has been offered on behalf of the appellants as to when they parted the company of the deceased. These circumstances alone are sufficient for drawing inference that the appellants are the persons who have caused homicidal death of the deceased. 12.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalfofthe prosecution. 13.1n the present case, homicidal death of the deceased as a result of strangulation/throttling has not been substantially disputed by the appellants, otherwise also established by the evidence of Dr. S.K. Dadu (PW-15) and autopsy report Ex.P-14 which reveal that there were multiple ligature marks over neck of the deceased, abrasions over different parts of the body, death of the deceased was as a result 6f strangulation and it was homicidal in nature. 14.As regards complicity of the appellants in the crime in question, conviction of the appellants is based on (1) last seen theory; (2) extra judicial confession made by the appellants; and (3) discloser of fact of rope at the instance of appellant No.1 Govind. L 8 ^I 15.Asharam (PW-1), father of the deceased, has deposed in his evidence that prior to the incident the deceased worked in the house of appellant No.1 Govind for 4-5 years; on the date of incident the deceased was present in his house; appellant No.2 Bhaktu, Jhariar & Santanu came to his house; they took meals at night but the deceased did not take meals; after some time, Jhariar & Santanu went away from his house; Bhaktu told the deceased that they will take meals in the house of Govind on which the deceased went with Bhaktu but did not come back alive and on second day his dead body was found in injured condition. 16. Ramprasad (PW-2) has deposed that on second day of the incident the dead body of the deceased was found in the field of Sanat on which he has lodged the report. 17.Ashok Kumar Sahu (PW-3), brother of the deceased, has deposed that some programme was organized in the village and he was present in that programme in the night, he came to his house at 5 a.m. and wentto sleep, after some time, his wife woke him up and told that his younger brother Kuleshwar has not come back and his dead body is lying in the field of Sanat. He has further deposed that his brother has gone with Bhaktu to the house of Govind for taking meals. He has also deposed that there was illicit relation of deceased Kuleshwar with wife of appellant Govind and the appellants have killed his brother. 18-Jhariar (PW-6) has deposed in his evidence that he was invited by father of the deceased Chowaram for dinner, he went along with Santanu to the house of the deceased and they took meals, appellant Bhaktu was also present there and after taking liquor, Bhaktu & Santanu also took their meals, but Kuleshwar has not taken the meals, thereafter, Santanu, -<, Bhaktu & Kuleshwar went away from the house, Bhaktu went to the betel shop and second day he came to know that Kuleshwar has died. 19.ToplalSahu (PW-8), brother of thedeceased, has deposed that Bhaktu, Santanu & Jhariar came to his house, they took meals with Kuleshwar, thereafter, Santanu, Jhariar & Bhaktu went away from his house and second day he came to know that his brother Kuleshwar has been killed. In para 3 of his evidence he has deposed that two months prior to the incident, his brother had left service from the house of appellant Govind and his brother was having illicit relation with the wife of Govind. 20.Parvati Bai (PW-12), mother of the deceased, has deposed in her evidence that Jhariar & Santanu came to her house, sheprovided meals to them, but Kuleshwar has not taken meals, all the three persons consumed liquor, Santanu & Jhariar went towards the pond and Bhaktu took her son Kuleshwar from her house towatch the programme, but her son did not come alive and his body was found onsecond day. She has further deposed that Govind has killed Kuleshwar on the ground of illicit relation with his wife. 21.As regards last seen theory, last seen theory is a weak type of evidence, but if it is proved and if the time gap between last seen the deceased in the company of the accused and commission of the offence or death of the deceased is so short to exclude the possibility of third person between the accused & the deceased, that may be sufficient for drawirig inference that the accused who was in the company of the deceased is the person who has committed the homicidal death ofthedeceased. 22.1n the matter of Hatti Singh v. State of Haryana the Apex Court has held that evidence of last seen by itself is not of much significance. It . "^^ 6 (2007)128cc 471 ^. 1— 10 may, however, provide for a link in the chain and unless the time gap between the deceased of having been last seen in the company of the accused persons and the murder is proximate, it is difficult to prove the guilt of the accused only on that basis. 23.Further, in the matter of State of Goa v. Sanjay Thakran and another and another connected appeal the Apex Court has held that In case of conviction based on circumstantial evidence, the prosecution is required to prove complete chain of circumstances 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 the innocence. Para 34 of the 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 the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend (2007) 3 SCC 755 11 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 likelihood of any person other than the accused, being the author ofthe 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." 24.1n the present case, Asharam (PW-1), father of the deceased, has specifically deposed that appellant No.2 Bhaktu has taken Kuleshwar with him for taking meals in the house of appellant No.1 Govind. Ashok Kumar Sahu (PW-3), brother of the deceased, has deposed that at the instance of Bhaktu, Kuleshwar went with Bhaktu for taking meals in the house of Govind. In para 5 of his evidence he has deposed that on the fateful day at about 8-9 p.m. the deceased & Bhaktu went from his house. 25.Jhariar (PW-6) has deposed that healong with Bhaktu & Santanu took meals in the house of the deceased, but the deceased has not taken meals. After taking meals, he went along with Santanu, Bhaktu & "^ ^^s 12 Kuleshwar towards betel shop and the place of function, thereafter Santanu went to his house and Bhaktu was present near the betel shop. In para 4 of his cross-examination, he has admitted that Bhaktu told him that Kuleshwar has consumed drink in excess quantity. He has further deposed that father of the deceased Asharam took the deceased inside the room for sleep. 26.Toplal Sahu (PW-8), another brother of the deceased, has deposed in his evidence that Santanu, Jhariar & Bhaktu took meals along with deceased Kuleshwar and after taking meals, Santanu, Jhariar & Bhaktu went to watch the programme. In para 6 of his cross-examination, he has deposed that afterwards he came to know that firstly, Jhariar & Santanu went from the house and then, Bhaktu & Kuleshwar had gone. 27.Parvati Bai (PW-12), mother ofthe deceased, who had provided meals to Bhaktu, Jhariar & Santanu, has deposed that at that time, Kuleshwar had not taken the meals, all the three persons consumed liquor, Santanu & Jhariar went towards the pond and Bhaktu took her son Kuleshwar to watch the programme. 28.There are some discrepancies in the evidences of these witnesses, but the evidences of these witnesses reveal that on the fateful day Santanu, Jhariar & Bhaktu were present in the house of Kuleshwar, they took their meals and after taking meals, Bhaktu & deceased Kuleshwar went away from the house of Kuleshwar, but Kuleshwar did not come back to his house and second day, his dead body was found in the field of Sanat. ilf the evidences of these witnesses are considered together, it may be presumed that on 5-3-2002 at about 8-9 p.m. deceased Kuleshwar went with appellant No.2 Bhaktu and deceased Kuleshwar was seen alive with Bhaktu when Bhaktu went from the house of Kuleshwar. However, these ^.> 13 evidences are not sufficient for drawing inference that the deceased was seen last time alive in the company of appellant No.1 Govind. 29.The prosecution has adduced evidence relating to other circumstance i.e. extra judicial confession of the appellants. Digamber Kashyap (PW- 5) has deposed that after the incident, during the course of enquiry, he himself has asked Govind on which Govind told him that Kuleshwar was having illicit relation with his wife, therefore, he along with Bhaktu has killed Kuleshwar by throttling. Narendra Kumar (PW-7) has deposed that at the time of enquiry he asked Bhaktu on which Bhaktu told him that he has killed and thrown the dead body in the field of Mandal and Govind has told that Kuleshwar was having illicit relation with his wife, therefore, eartier he has removed Kuleshwar from work. 30. Defence has cross-examined Digamber Kashyap (PW-5) in detail. In para 6 of his cross-examination, he has admitted that Bhaktu Ram was present in the function. In para 13 of his cross-examination he has admitted that the police has taken Govind to the Police Chowki first day and second day they came with Govind,police was interrogating Govind inside the Panchayat building, he also interrogated Govind in another room at that time police were not present in that room, but they were sitting out of the room in the Verandah and Govind made extra judicial confession before him. In para 16of his cross-examination, he has further admitted that Govind has made extra judicial confession in his house while the police were searching the rope in the house of Govind. 31.Narendra Kumar (PW-7) has deposed in his evidence that when the police were interrogating, at that time, he has also asked Bhaktu & Govind on which they made extra judicial confession before him. In para 6 of his cross-examination he has admitted that investigating officer Miss 1 14 Kumari Chandrakar has already told him & other persons that appellants Govind & Bhaktu have admitted their guilt, then first time he came to know that the appetlants have admitted their guilt. 32.Evidences of Digamber Kashyap (PW-5) & Narendra