HIGH COURT OF CHHATTISGARH, BILASPUR D.B.: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI SUNIL KUMAR SINHA, J. \ Criminal Aooeal No. 958 of 1995 Bhagwat Yadav & Another Vs. State of M.P. (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON»BLE SHRI JUSTICE RAJEEV GUPTA 3 Sd/- Chief Justice T^lU^ Post for Judgment :^^M72011 Sd/- Sunil Kumar Sinha Judge ^^ ^ HIGILCOURT QF CHHATTISGARH ATBILASPUR D.B.: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI SUNIL KUMAR SINHA, J. Criminal Appeal No. 958 of 1995 ^ 1 6 ^ APPELLANTS RESPONDENT Bhagwat Yadav son of Ramsakela Yadav, aged 26 years, R/o Village Birkona Kallu Yadav alias Narendra Yadav, son of Babulal Yadav, aged 25 years, R/o Birkona, Police Station: University Koni, District Bilaspur, MP, (Now Chhattisgarh) Versus State of M.P. (Now State of Chhattisgarh) Through Station House Officer, Police Station University Koni, District Bilaspur (C.G.) APPEAL UNDER SECTION 374 12} OF THE CODE OF CRIMINAL PROCEDURE Aooearance : Mr. Rajeev Shrivastava, Advocate for the appellants. Mr. Jameel Akhtar Lohani, Panel Lawyer for the State. JUDGMENT (1.2.2011) Following judgment of the Court was delivered by Sunil Kumar Sinha.J: (1) This appeal is directed against the judgment dated 4th of July, 1995 passed in Sessions Trial No. 44/93 by the Fifth Additional Sessions Judge, Bilaspur. By the impugned judgment, ~1 ^y^^ ^< '"\ •^ g Criminal Apoeal No. 958 of 1995 the appellants have been convicted u/s 302 IPC and sentenced to undergo imprisonment for life. ^ i^ (2) The facts, briefly stated, are as under:- Deceased- Chamru Singh was having 2 wives. Jamuna Bai (PW-9) was first wife and Gouri Bai (PW-8) was second wife. Both were residing in different houses in different localities of the village. On 3.2.92 at about 8.45 p.m. the deceased took his meal in the house of his first wife and thereafter he came for sleeping to the house of his second wife-Gouri Bai. The case of the prosecution is that at about 9.30 p.m., the appellants came to the house of Gouri Bai and took the deceased saying thatthey have to attend a village Panchayat in Ramchouraha. Thereafter the deceased did not return to his house and in the morning at about 6.00 a.m., his dead body was found in front of the house of Mohan Sahu. There were many injuries on the body. The villagers^including the sons & wives of the deceased^gathered and Devendra Singh (PW-11) lodged the First Information Report (Ex.-P/ll). The Investigating Officer reached to the place of occurrence, gave notice (Ex.-P/l) to the Panchas and prepared inquest (Ex.-P/2) on the body of the deceased. The dead body of the deceased was sent for post-mortem to Dharam Hospital, Bilaspur, where the post-mortem examination was conducted by Dr. V.K. Verma (PW-13). He noticed inany incised and lacerated wounds on the body of the deceased. There were many fractures including compound fracture of both parietal, both temporal and frontal bones. There was also fracture of occipital bone which had broken into 2 pieces. Other fractures were also there. The Autopsy Surgeon opined that the deceased died due to external and internal haemorrhage & shock as a result of multiple fractrures of skull bones. The death was homicidal. The post-mortem report is Ex.-P/14. In further ^. ^ '•'^••^ --."%.. '%. ^_ ,^ ^k ''^;-.....--': .,:"3a< A*.-!-' t ^ Criminal Appeal No. 958 of 1995 @ investigation, the appellants were taken into custody and their memorandum statements (Ex.-P/3 & P/5) u/s 27 of the Evidence Act were recorded and tabbal, tangia SE, lathi were seized at the instances of the appellants vide seizure memos Ex.-P/4 & P/6. The seized articles were sent for their chemical examination to ^orensic Science Laboratory, Sagar, from where a report was received. According to the F.S.L. report blood stains were found on tabbal, tangia & lathi,b\it no report relating to origin or group of blood etc. was filed by the prosecution. (3) Admittedly, there were no eye-witnesses to the incident and the case of the prosecution was based on circumstantial evidence. Following are the circumstances, on which, the prosecution relied:- (A) The deceased had inimical relations with the appellants; (B) The conduct of the appellants was suspicious prior to the incident; (C) The appellants and the deceased were last seen together; 85 (D) Seizure of the weapons at the instances of the appellants. (4) On a close scrutiny of evidence led by the prosecution, the Sessions Judge held that the circumstances (B) 85 (D) were not established against the appellants. However relying on the circumstances (A) & (C), it was held that the appellants were guilty of the offence punishable u/s 302 IPC/for comniission of murder of deceased- Chamru Singh. s^ fc. 6 Criminal Appeal No. 958 of 1995 (5) Mr. Rajeev Shrivastava, leamed counsel appearing on behalf of the appellants, argued that so far as circumstance (A) is concerned that is not incriminating and the conviction is mainly based circumstance (C) i.e. last seen together. He argued that the above circumstance of last seen was held to be proved on the evidence of Gouri Bai (PW-8). Gouri Bai was not reliable asthere are many material discrepancies in her evidence. He also argued that there is long tinie gap between the deceased allegedly seen alive in the company of the appellants and the dead body found, therefore, a possibility of any other person coming in between cannot be fully ruled out. (6) On the other hand, Mr. Jameel Akhtar Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgnient passed by the Sessions Court. (7) We have heard the learned counsel for the parties at length and have also perused the records ofthe sessions case. (8) A perusal of the judgment would showthat the conviction is mainly based on the circumstance of last seen together. (9) Gouri Bai (PW-8) deposed that at about 8-9.00 p.m., the appellants came to her house and asked the deceased to accompany them to attend a Panchayat. Thereafter the deceased went along with the appellants. In the next raorning, the dead body of the deceased was found in front of the house of Mohan J <:. \-\ Criminal Appeal No. 958 of 1995 Sahu. She further deposed that on the fateful night at about 8.00 p.m.., she had gone for visit to the house of Kisunram. When she was returning to her house, she was accoinpanied by Jagendra. On the way, she saw the appellants. Appellarit- Kallu was armed with tabbal and appellant- Bhagwat was armed with lathi. Bhagwat was saying that "Let us go, today the work will be done." On this, she told Jagendra to tell all this to her husband and also tell him that he should not come to her house because the appellants are annoyed and they are abusing. Thereafter her husband came to her house. The facts relating to meeting of the appellants prior to the incident; they were armed with weapons; and they talked in the above manner are the omissions in 161 statement (Ex.-D/l) of PW-8- Gouri Bai. There are other omissions also in her 161 statenient. The learned Sessions Judge has also held that the evidence of Gouri Bai (PW-8) was not reliable to the extent that she had seen the appellants armed with deadly weapons and the appellants were talking in the manner indicated above. The Sessions Judge has also obser^ed the conduct of PW-8 on the above account and has held that if a wife will know all above facts about the conduct of the appellants and would keep suspicion against the appellants that they will kill her husband, she would never allow her husband to go with them. On the above analysis of the evidence of PW-8, the Sessions Court has clearly held that she was not reliable so far as circumstance of seeing the appellants in suspicious condition is concerned. However, relying on her testimony for last seen togetiier, the ^^y^^ /y:^\ g vs^ l I,""'!5 J ^-,2::^' fG; r ^ 6 Criminal Appeal No. 958 of 1995 conviction has been awarded to the appellants. When ttie Sessions Judge has held that Gouri Bai (PW-8) was not fully reliable, in our opinion, it was not safe to rest the conviction of the appellants on the solitary circumstance of last seen together holding it to be proved by the sole evidence of the above witiiess who was wife of the deceased and was partly unreliable. (10) In Lallu Manihi and Another -Vs- State of Jharkhand, (2003) 2 SCC 401, relving on the iudgment of Vadivelu Thevar - Vs- State ofMadrcis^ AFR 1957 SC 614, the Supreme Court held that "The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there niay be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness." (11) In the present case, Gouri Bai (PW-8) was not wholly reliable. There is no corroboration of the evidence of Gouri Bai (PW-8), therefore, it was not safe to rely on the uncorroborated testimony of Gouri Bai (PW-8), for the solitary circumstance of last \seen together. ;£t^^:-;:L -"^^ kf y- ^ ^^^ .^. ^.^,;^; I, ,IIBB^\ <<-: \ Criminal Apoeal No. 958 of 1995 (12) In Dhananiov Chhatteriee -Vs- State of W.B. f1994^ SCC 22 the Supreme Court held "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 circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, ttie greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof." (13) In Bodh Rai alicis Bodha and others -vs- State ofJam.mu and Kcishmir. AIR 2002 SC 3164, the Supreme Court laid down that there is no doubt that conviction can be based solely on circumstantial 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 concemed <must? or 'should' and not 'may' be established; 2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be ^.J Criminal Appeal No. 958 of 1995 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 raust have been done by the accused. (14) About the last seen theory, in niany cases, the Supreme Court held that the last seen theory comes into play where the tinie gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes irapossible. It would be difficult in some cases to positively establish 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 lastseen together, it would be hazardous to come to a conclusion of a guilt in those cases. (15) In the present case, as stated above, the prosecution has tried to prove the circumstance of last seen on the solitary evidence of Gouri Bai (PW-8). She was not fully reliable. She was the wife of the deceased. Even if we hold that the deceased was taken by the appellants, we find that the deceased was allegedly 'seen alive at about 9.00 p.m. on 3.2.92 and his dead body was , .^'.•. ;i^-.^ :'-^^ Criminal Appeal No. 958 of 1995 seen at about 6.00 a.m. on 4.2.92. This shows that there was long time gap between the deceased allegedly seen alive and the dead body found. Therefore, a possibility of any third person coming in between cannot be fully ruled out and in absence of any other positive evidence to conclude that the appellants and the deceased were last seen together, it would be hazardous to conie to the conclusion of guilt of the appellants in this matter. (16) For the foregoing reasons, we allow the appeal and set-aside the conviction and sentences awarded to the appellants u/s 302 IPC. The appellants are acquitted of the charges framed against them. The appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti