HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.700 of 2006 Rengsu Gond S/o Paklu Gond, Aged aout 5O yrs. R/o Village Kotripani Police Station Bagbahara, District Mahasamund (C.G.) Versus RESPONDENT: State of Chhattisgarh Throug Police Station Bagbahara, Distri Mahasamund (C.G.) {Appeal under Section 374 (2) of the Code of Criminal Procedure} APPELLANT: (In Jan) r” Present: Mr. Akhilesh Mishra, counsel for'the appellant, Mr; §anjeev Kumar Agrawal, Panel Lawyer for th State/respondent. Division Bench: - Hon’ble Ma. T.P. Sharma and Hon’ble Mr. R.L. Jhanwar, JJ ORAL JUDGMENT (1 8-3-201 1) T P Sharma J' - Challenge in this appeal is to the Judgment of conVIctIon & order of . sentence dated 6 7 2006 passed by the 15‘ Additional Sessmns Judge Mahasamund in SeSSions Trial No.153/2006, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of his wife Phala Bai, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.200/'-, in default of payment of fine to further undergo RI for one month. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, on the fateful day of 7—3—2006 at about 7 am. the appellant along with his wife Phala Bai (since deceased) left his house for BhalUchua forest for collecting mahua, the appellant was holding axe, thereafter Phala Bai — wife of the appellant, did not return to her house, her son Tulsiram (PW—1) along with her another son BiSambhar (PW-3) and oth'ers went for search of Phala Bai. Dead body of Phala Bai was found in Bhaluchua hilly area, neck was found cut. The b h ct e ‘ appellant was not present, they also searched for the appellant but they did not find the appellant. Thereafter, Tulsiram (PW—1) lodged dehati nalsi vide Ex.P-1. The lnvestigating Officer left for the scene of occurrence and after summoning the witnesses vide EXP-2, prepared inquest over the dead body of the deceased vide Ex.P—3. Spot map was / prepared vide Ex.P-6. Bloodstained and plain soil were recovered from the spot vide Ex.P-7. One axe stained with blood lying near the place of incident was seized vide Ex.P—8. Clothes of the deceased were seized vide EXP-9. Two baskets of bamboo were seized from the spot vide Ex.P-10., Finally FIR was lodged vide EXP-13 and merg was recorded vide Ex.P—14. Dead body was sent for autopsy to Community Health Centre, Bagbahara vide EXP-15. Dr. R.K. Kuruvanshi (PW-10) conducted autopsy vide Ex.P-15A and found following injuries: - (1) Deep incised wound of 3 1/2” long in front of neck. (2) Deep incised wound of 3 1/2" long in front of neck. (3) Deep-incised wound of 3" long in frontvof neck. (4) internal organs, trachea, cervical bone were cut. (5) Deep incised injury of 3” x 1/2” over back. Mode of death of the deceased was shock and death was homicidal in nature. Patwari prepared spot map vide Ex.P-18. During the course of ‘ investigation, the accused was taken into custody, he made discloser statement of clothes vide Ex.P—4 and same were recovered at the instance of the accused vide Ex.P-5. Seized aiticles were sent for chemical examination vide Ex.P-17. . Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Mahasamund who committed the case to the Court of Sessions, Raipur, from where learned Additional Sessions Judge received the case on transfer for trial. . In order to prove the guilt of the accused, the prdsecution has examined as many as twelve witnesses. The accused was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. 6. After providing opportunity of hearing to the pariies, learned Additionai Sessions Judge, convicted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that conviction of the appellant is based on circumstantial evidence. ln order to convict the l accused on the basis of circumstantial evidence, the prosecution is required to satisfy the followrng tests - (1) the Circumstances from which an Inference of gurlt is sought to be drawn, must be cogently and firmly established, (Zitbose circumstances should of a definite tendency unerringly pointing towards the guilt of the accused; (3)the circumstances taken cumulatively'should form a chain so complete t» that - . there . is no escape from the conclusmn . 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. 9. Learned counsel for the appellant further argued that in the present case, the prosecution has examined Tulsiram (PW-1) & Bisambhar (PW-3) - sons of the deceased & the appellant, relating to last seen theory which does not inspire confidence and which is not trustworthy, even otherwise, last seen theory itself is not sufficient for conviction of the appellant; in case of conviction based on circumstantial evidence, the prosecution is required to establish strong motive for commission of the offence. ln the present,the prosecution has not proved strong motive for commission of such offence. Learned counsel placed reliance in the matter of Niranjan c Panja v. State of West Bengal1 in which the Supreme Court has held that in order to convict the accused on the basis of circumstantial evidence, the prosecution is required to prove strong motive and in case of last seentheory, the prosecution is required to prove the time of death s] 2010 (3) Supreme 783 K t H l / of the deceased and required to produce convincing and clinching evidence. 10.0n the other hand, learned State ,counsel opposed the appeal and submitted that the appellant is husband of deceased Phala Bai and he was under obligation to save her. As per the evidence adduced on behalf of the prosecution, the deceased was not only seen in the company of the appellant last time, but the appellant has taken his wife Phala Bai (since deceased) from his house to Bhaluchua forest for collecting mahua and the accused was holding axe, but deceased Phala Bai did not return to her home and her dead body was found in Bhaluchua forest, two baskets taken for collecting mahua and axe which the appellant was holding, were found near the place of incident. The appellant was not present there, he has not offered any explanation and he escaped fromthe place of incident. This evidence is sufncient for drawing ihference that only the appellant has committed the offence and no other person has:committed the offence. 11.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 12.ln the present case, homicidal death of deceased Phala Bai as a result of: fatal injuries found over vital part of‘her body has not been substantially disputed on behalf of the appellant, even otherwise, it is established by evidence of Dr. R.K. Kuruvanshi (PW-10) and autopsy report Ex.P—15A that death of deceased Phala Bai was homicidal in nature. 13.As regards complicity of the appellant in the crime in question, conviction is substantially based on circumstantial evidence. In order to convict an accused on the basis of circumstantial evidence, as held by the Supreme ‘Court in the matter of Kusuma Ankama Rao v. State of A.P.2, in case of conviction based on circumstantial evidence, the prosecution is required tosatisfy the following circumstances, (i) 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; (ii)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 explainable on any other hypothesis except that the accused is guilty; (iii)the circumstances should be of a conclusive nature and tendency, (Iv)they should exclude every pOSSIbIe hypothesus 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 accused and must show that in all human probability the act must have been done by the accused. 14 ln the present case the prosecution has tried to establish the followmg r facts — ‘ (1) The appellant has taken his Wife Phala Bai (Since deceased) With V him for collecting mahua and they left their house for Bhaluchua (2) The appellant was holding axe. (3)The appellant & the deceased — wife of the appellant, did not return from forest after collecting mahua._ (4) On same day, sons of the appellant & the deceased went for search of their mother &father. (5) Dead body of Phala Bai was found near Bhaluchua forest in injured condition. (6) The appellant has not lodged any report, even he did not return back to his home, and he has not offered any explanation as to when he parted the company of the deceased. 15.The prosecution has examined Tulsiram (PW 1) & Bisambhar (PW-3) sons of the appellant & the deceased regarding last seen theory Both the Witnesses have deposed that on the date of inCident at about 6 7 a m the appellant along With his Wife i.e. Phala Bai (Since deceased) left the house for forest for collecting mahua, the appellant was holding axe at the time of leaving house the appellant & the deceased did not return back to their house thereafter at 10 a m they proceeded towards the forest for search of their parents and at about 2 p m they found the dead body of their mother and injuries upon the dead body The appellant was not present there and he did not return back to his house Defence has cross examined these Witnesses at length but has not asked any question to these Witnesses that the deceased has not forest. ‘ ’ [I accompanied the appellant or the appellant has not taken his Wife to H forest for collecting mahua and that he was not holding axe. \ The ‘appellant has also admitted in his examination under Section 313 of the CrPC, while answering question Nos.3, 4 & 5, that the deceased has accompanied him for collecting mahua and they left their house for Bhaluchua forest. 16.Unrebutted evidence of these witnesses corroborated by the answers of the appellant are sufficient for drawing inference that the appellant has taken his wife with him for collecting mahua and they went to Bhaluchua forest for collecting mahua, at that time, the appellant was holding axé. "17.Last seen theory is also a strong circumstance. While dealing with the question of last seen together, the Supreme Court in the matter of Sahaq‘eyan alias Sagadevan v. State represented by Inspector of Police, Chennai? has held that if the prosecution on the basis of reliable evidence establishes that the missing person was last seen in the company? of the acéUsed 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 judgment reads thus:- A, "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 become obligatory on the appellants to satisfy the court as to how, where and in what manner Vadivelu parted companywith them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they patted company. ln 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 Vadivelu. In such circumstances, it was incumbent upon A-1 t‘o have explained to the court in what circumstances they patted company...-He has not given 3 (2003) 1 scc 534 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 appetlants 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. Vadiveiu 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 Vadiveiu. At this point, it may be relevant to note that though no specific stand has been taken by the a ‘tappella’nts as to their parting company with Vadiveiu, 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 yvitnesses on the night intervening between 5-3—1985 'and 6—3-1‘985 that Vadiveiu 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 andthe 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." ,l A, 18.While dealing with same question, the Supreme Court in the matter of Hatti Singh v. State of Haryana" has held that in case of last seen together the evidence of last seen by itself is not of much significance. lt-may, however, provide for a link in the chain. But unless the time k v 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. 19.While dealing with same question, the Supreme Court in the matter of State of Goa v. Sanjay Thakran and another5 has held that in case of last seen together the proof of Iast seen together wouid be relevant if the prosecution establishes that in the intervening period there was no i 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:- “34A 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 andrthe deceased were found together alive and 'when the deceased was found dead is so small that possibility of any other person being with ’j, <. 1‘ the deceased could completely be ruled out. Thetime gap between the accused persons seen in the company of the deceased and the detection of the crime would be 1a 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 nxed or straight jacket formula for the duration of time gap in this reg'ard 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 likelihood 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 v where the incident occurred or where they were last seen together with thedeceased, 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.” w‘x \\ x x / 5 (2007) 3 scc 755 t 9 20.As per evidence‘of Tulsiram (PW-1), Bisambhar (PW-3) & other witnesses, ead body of the deceased was found in Bhaluchua forest, same also finds corroboration fro inquest EXP—3, dehati nalsi Ex.P-1, merg Ex.P-4, spot map EXP-6 and recovry of two basket near the place of incident vide EXP-10. 21.The appellant has not ofered any explanaion as to when he has parted the company the deceased, inter alia, he himself has not returned back to his house and his sons searched for him but they did not find him. In the present case, t appellant & the deceased were seen alive at 7 a.m., thereafter their sons went for their search at 10. a.m. and dead body of the deceased was seer‘trfirst time at 2 p.m. on same day i.e. within ven hours of last seen theory. 1.4 a” 22.ln cae of circumstantial evidence, motive is an important circumstance, but motive can be inferred on he basis of other circumstances. It is not possibl% to frameany straightjacket formula relating to motive. Motive is a mental element of the person and it c be well explained by the & person concerned or it can be inferred on the asis of surounding circumstances. 23. ln the present case, the appellant — usband o the deceased, was und- obligation to protect his wife he himself has taken his wife to forest or collecting mahua, his wife was found dead near the place where they /i, have gone for collecting mahua that too as a result of injurie and death was homicidal in nature. The apellant was not required t leave his § wife alone that too in the forst without any just and proper caus. ln normal course, the appellant was required to return back to his house for taking meals, at least in the evening time, but he did not return back to his ouse. He himself has not lodged an report to the police relating to death of his wife. The appellant & the deeased, only two persons, were present in Bhaluchua forest. The appellant wa under obligation to offer explanatiOn in terms of Section 106 of the dn Evidence Act that as to who has caused injuries to his wife and how she died, but the appellant ,has not offered any explanation. 4.These circumstantial evidences are convincing and clinching and in absence of any explanation as required under Section 106 of the Indian Evidence Act and relating to the fact that when the appellant parted the company of the deceased, the only inference would be drawn that only d m e s f t of he s se t ‘ an b r h f er- , f s p o e e h y c Inia s 2 the appellant has committed culpab|e homicide amounting to murder of his wife. The case of Niranjan (supra) is distinguishabie on facts to that of the present case. 25.Evidence adduced on‘behalf of the prosecution is sufficient to establish that only the appellant has committed culpable homicide amounting murder of his wife, except the appellant nobody has committed the murder of his wife and same is also sufficient to exclude the innocence of the appellant. 26.After appreciating the evidence available on record, learned Additional Sessions Judge has rightly convicted & sentenced the appellant. 27.0n close scrutiny, we do not find any substance in the appeal, same is liabletofbe dismissed and it is hereb ha y dismissed. ./ / .&‘