l^ HiGH COURT OF CHHATTiSGARH AT BILASPUR CrimlnaiApReai NoJ59 of 2005 Dlvsslon Bench^ Appeiiant (}n Jail) Respondent HON'BLE iVJR.T.P.SHARIM & HON'BLE MR.R.L.JHANWAR, JJ. Sham Saj S/o Budharam, Aged about 35 years, Resident of Viiiage-MachpalSJ; P.S. Pakhanjore, District-Kanker. Versus State of Chhattlsgarh, Through : Dlstrtet Magistrate, Kanker (APPEAL UNDER SECTSON 374 (2) OF THE Cr.P.C.) Present:- Mr.Mukesh Shrivastava, counse! forthe appeliant Mrs.Madhunjsha Slngh, Panel Lawyerforthe State. JUDGS\4ENT (ORAU (Passed on 14th January, 2011) T.P.Sharma, J.:- 1. Chaiienge in thss appeal Is to the judgment of convictlon and order of sentence dated 30.7.2005 passed by the First Additional Sesslons Judge, Kanker in Sesslons Triai No.346/2004 whereby & whereunder iearned Flrst AddltionaJ Sessions Judge aftsr holding the appeiiant guiity for commissson of cuipable homlcide of Ramjs amountjng to murder convicted hlm under Section 302 of the t.P.C. and sentenced to undergo imprisonmsnt for iife and to pay fsne of Rs.500/-, sn defauit of payment of flne to further undergo R.j. for one month. 2. Conviction is impugned on the ground that vvithout there belng any iota of evidence, the trial Court has convicted and sentenced the appeiiant as aforementioned and thereby committed iilegality. 3. As per case of the prosecutjon, on 12.9.2004 deceased Ramji consumed iiquor w'rth the present appeiiant in the house of the appeiiant, thereafter, on 13.9.2004 injured dead body of Ramjl was found near Kuwapara of vsiiage Machpaiij, Pollce Station Pakhanjur. ^^f* /if"\ ! %^'^. 1 ,^^::'1;^ ^ ^•^€/ ^^,3^',J @ Merg was intlmated vide Ex.P/15 and on the basis of merg, F.i.R. was iodged vide Ex.P/16. After summoning the witnessss vide Ex.P/5, inquest over dead body of Ramji was prepared vide Ex.P/6. Spot panchnama was prepared vide Ex.P/8. Dead body was sent for aytopsy to Clvl! Hospitai, Pakhanjur vide Ex.P/10 where Dr.N.R.Navratna (PW-6) conducted autopsy vide Ex.P/11 and found fo!iowlng injuries:- (1) Nasai bone was depressed. (ii) Two teethes were broken, iip was found cut. Inclsed wound over head of 4 x 4 cm. Cause of death was cardio respiratory arrest due to nasal bone fracture. Death was homicida! in nature. During the course of investigation, the appeliant was taken in custody, he made disdosure statement of stone and place where the offence has been committed vide Ex.P/1. Stones were seized aiong wlth bloodstalned soii vide Ex.P/2. Patwari prepared spot map vide Ex.P/4. Ciothes of the deceassd were seized vlde Ex.P/9. Spot map was prepared by investlgating officer vide Ex.P/18. Seized artldes were sent for chemicai examinatlon vide Ex.P/17. 4. Statements of the Vv'ltnesses were recorded under Sectlon 161 of the Cr.P.C. and after compietlon of investlgatlon charge sheet was fljed before the Court of Judiclai Magistrate First Ciass, Bhanupratappur y/ho in turn committed the case to the Court of Sessions, Jagdaipur, from where iearned First AdditionaS Sessions Judge, Kanker received the case on transfer for triai. 5. In order to prove the guilt of the accused/appellant, the prosecution examined as many as ten wltnesses. Statement of the accused/appeiiant was recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and ciaimed innocence and false impiicatjon in the crime sn questlon. 6. After affording an opportunity of hearing to the parties, iearned First Additional Sessions Judge, Kanker has convlcted and sentenced the appellant as aforementioned. "%.. ^. ^:^^ '^ ^; • ^ .^ ^. i%-^'.iy c ^., 7. We have heard ivtr.Mukesh Shrivastava, counssf for ths appeiiant and Mrs.Madhunisha Singh, PaneS Lawyer for the State, perused the jucigment impugned and record ofthetrial Court. 8. Learned counsel for the appeiiant submlts that in the present case conviction is only based on iast seen theor^ of evidence of Ranai Bai (PVV-10), wife of the deceased, whose evidence does not inspire confidence and trustworthy and there Is long tlme gap between recovery of dead body and iast seen theory, therefore, only on the basis of aiSeged last seen theory, conviction of the appeiiant is not sustainabSe under the Saw. 9. Learned counsel piaced reiiance sn the matter of Gendu v. State of Chhattssgarh reported sn 2008(1) AcqiiStSaS 1Q4 (Chhatt.) In which th® Court has held that in case conviction based on last seen theory, the prosecution is required to show that that tlme gap betv^een the deceassd seen in the company of the appeilant Sast tsme and recovery of dead body i.e. commsssion of murder would be so small to ruie out the possibility of thlrd person between the accused and the deceased. 10. On the other hand, iearned State counsel supported the judgment impugned and submits that the deceased was seen in the company of the appellant iast time and the appeilant has not offered any expSanation that v</hen the deceased parted hSs company. in the absence of such expfanation, the only jnference wouid be possibte that the appeliant hss caused the aforesaid homicidaS death of the deceased. 11. in order to appreciate the arguments advanced on behalf of the partles, we have examined the evidence adduced onbehaSfoftheprosecutton. 12. in the present case, homicidai death as a resuit of injurles found over the body of deceased Ramji has not been substantlaiiy disputed on behajf of the appeliant, on the other hand, ateo established by the evidence of Dr.N.R.Navratna (PW-6) and autopsy report Ex.P/11. Death was homicidai in nature. 13. As regards the complicity of the appeiiant in the crime in question, conviction is substantialiy based on iast seen theory. As per evidence .'i", c' of Ranai Bai (PW-10), wsfe ofthe deceased, the deceased was drsnking iiquor with the appeilant at about 4 p.m., but he did not come back to his house, then she went for search for her husband and dead body of her husband was found iying near tree. Sn her cross-examlnatson she has admitted that at about 4 p.m., the deceased was drinRlng Siquor with the appeliant in the house of father of the appeilant where so many persons were also present. 14. Except this evidence, the persecution has not coHected any other set of evldence to connect the appeliant in the crime in questlon. As per evidence of Ranai Bal (PW-10), deceased was present in the house of the appeilant who was drinking iiquor with the appeSlant, other persons were aiso present there and on second day, dead body of the deceased was found away from the house of the appeltant. Time gap between the fact that the deceased was seen along with the appeiSant and recovery of dead body is so iong. The proseeution has aiso coiiected evidence relating to disclosure statement and recovery of stone, but as per evidence of the prosecution, dead body aiong with bloodstained stone vvas found in the same place and it was not m hidden posltion, even the viiSagers have brought the dead body and inquest has been prepared in hospital, in these circumstances, disciosure statement anci recovery of any articie is of no use, although the appeliant was under obilgation to offer expianatlon that when he parted the company of the deceased, but considering the evidence of Ranai Bai (PW-10) that so many other persons were aiso present in the same house, it is difficuit to hoid that the deceased was present only with the appeSSant and he was onSy in the company of the appeilant. In these circumstances, oniy on the ground of non-expianatton by the appeSSant that when he parted the company, no any adverse would be possible against the appeilant. 15. As heid by this Court in the matter of Gendu (supra), the deceased seen aiive in the company of the appeliant and recovery of dead body are not so small, inter aSia, there is long time gap. tn these circumstances, conviction oniy on the basis of evidence of Ranai Bal (RA/-10)isnotsafe. •f":A./ -y •^.. @ B/- L- 16. Whlle convicting the appellant under Section 302 of the i.P.C., the tria! Court has not considered the insufficiency of evidence and thereby committed iSiegaiity. 17. Consequentiy, the appeai is ailowed. Conviction & sentence of the appeiiant under Section 302 of the J.P.C. are hereby set aside. He be set at iiberty and be reieased, forthwlth if not required in any other case. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge