^3^ "V/'/ WSf L.;? HJGH:CQURTC)FlGMHATT(SCSftRH.BlLASPUR i^0^ it D.B: Hon'lileShri Rajeev Gupta, C.J., & Hon'ble Shri SunilKumarSinha, J. Crjminaj Adpeal No. 1S4 of 2003 Kailash Loahi &an6ther ..Vs.<^ The StateOf Ghhattisgarh JUDGMENT ForcOnsidqration 1 Sd/- , Sunil Kumar Sinha Judge HON'BLESHRIJUSTICERAJEEVGUPTA ISCs 3 A^rr^-^-r d ; ^..sd/- ? i ChiefJustice I ^ ^ /09/2008 -A PostforJudgment /2-/09/2008 SdA , ;, il.KumarSinha^—r-3 'y;Judge •l!i, i l!-t V. Sff VSK'!" a S9S Nffiil: Iffl !|;!|!l !.IN! ttl ~-'»1 HIGHCOURTOFeHHATTISGARH.BILASPUR D.B: Hon'ble Shri RajeevGupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. APPELLANTS RESPONDENT CriminalADDealNo. 164of20Q3 1. Kailash Lodhi S/o Pitamber Lodhi, ^aged 27 years, R/o Village- Patharrikhurd, P.S. & Tahsil-Saaja, Distt. Durg(C.G.) 2. Jeevan Lodhi, S/o Latmar Lodhi Age ,.25 ^years, R/o Surodabri, Tahsil Chf'iuikhadan, Distt. Rajnandgaon (C.G.) \, Versus The State of Chhattisgarh, Through Police of P.S. Chhuikhadan, Distt. Rajnahdgaon (G.G.) (ADpeal UnderSeCtion 374 (2V Of The Code Of Criminal Procedurel -<______;. . ________^.'. .••._________-:.-__ ADDearartGe: Shri R.N. Jha, CouhSel for the appellants. Shri Praveen Das, Dy.Govt. Advocate, fortheState. JUDGMENT (12-.09.2008) Following judgment of the Gourt was delivered by SunilKumarSinha, J. # 1 !fj"'" (1) Challenge is made to the judgment of conviction and order of sentence dated 16.1.2003 passed by the Additional Sessions Judge, Khairagarh, District Rajnandgaon in Sessiohs Trial No. 114/20Q2, whereby, the appellants have been convicted under Sections 302 & 201 I.P.C. and sentenced to undergo imprisonment for lifeand to pay a fineof Rs.2,000/-, in defaultOfpaymentoffinetofurtherundergoR.I. for 10 monthsand R.l. for 7 years and to pay a fine-of Rs.1,000/-, in ;lSU=Et"c=^==S^^^^=^-:;,^3^^@KBaiBtS=-^ m: Wi!l: 'i ~r /> erirEUDalADpealNo. 164 of2003 default of psiyment of fine to further Undergo R.l. for 5 months with further direetion to run thg sentences concurrently. (2) Deceased- Basant Lodhi was working in the shop of Bhuwan and Jagannath (PW-6) sityated invillage Parppdi. He was residentof village Patharrikhurd, Heused to goto the shop on every morning. On 7.4.2002, he did not'returnto his house, search was made and <i ultimately, on 11.4.2002, his dead body was found in a fietd in village >l, Suradabri. The matter was reported to the police by Bhojram (PW-1) and a merg intimation (Ex.-P/1) was recorded. On 11.4.2002, the Investigating Officer prepared inquest (Ex.-P/2) on the body of the deceased. The dead body was sent for postmortem to P.H.C., Chhuikhadai;! and the postmortem examination wasconducted by Dr. Ashok Khare (PW-4),who prepared hisreport (Ex.-P/S). The Autopsy Surgeon noticed that the body was in highly decomposed condition, his face had disfiguredand hands & legs were mummified. Eyes were Glosed, tongue was prdtruding out of mouth and theneckwas freely mbving around. Oninternalexamination, he found that axis bonewas fractured, spinal cord was cut at 2" & 3 vertibra positions and there were injuries on the upperside of right lung. The left jsiwwas also fractured. He opined that the cause of death was cervical fracture leading to respiratory failure and the death has occurred in the period 5 to 7 days'back. On 14.4.2002, appellant- Kailash was taken into custOdyand a discovery memo (Ex.-P/3) u/s27 ofThe Evidence Act was recordeci and empty bottles of liquor etc. were seized from the placeindicated by him, which wasa placein the field where the dead fcodywasfound. Sr'Fi3Kt«ai»»!» Bl i CriminalAppealNo. 164 of2003 (3) The case of the prosecution is that 3 years prior to the date of incident.the deceased l^ad purchased a land from the appellant- Kailash Lodhi fora consideration of Rs.25,000/-. Though the consideration was fully paicrand the possession ofthe land was also delivered to the deceased' but the execution of registered sale-deed had not taken place-and appellant- Kailash Lodhi was denying to executing thesale-deed.,. It 4S for this reason, on 7.4.2002, the appellants went to the shop of\,Jagannath (PW-6) and took the deceased on their bicycles, whereafter, the deceased was not seen alive. Since the deceased was lastly seen'alivewith theappellants, on the circumstance of 'last seen together'the appellants were arrested, the charge-sheet was filed against them and after the trial they were convicted andsentenced as aforementioned. (4) Admittedly, there are no eye witnesses in thiscaseand the conviction of the appellants is based upon the solitary circumstanceof lastSeen together coupled with the motiveto committhe murder ofthe deeeased on account of the land sale dispute between them. (5) Shri R.N. Jha, learned counsel for the appellants, has not disputed the homicidal death of the deceased. He argued that the conviction based on the solitary eircumsfance of last seen together cannot be sustained. He also arguedthat the circumstance does not appearto have been established by the prosecution and even if it is heldto be proved, looking to the long time gap between lastseen and the dead botty discovered, possibility of third person coming in between cannot be fully ruled out in this case. ' 'ii; |a:ll!' sws iJ^);i:Ni ...^- --S ./ n CrimirialAOBealNo. 164of2003 (6) Onffieotherhand, leamed counselforthe Stateopposedthese 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 oftheSessions Court. (8) For resting the conyicticsi solely based on the circumstantial evidence, the law laid down. b^the Apex court in the matterof Dhananiov Chhaftenee-Vs-State 6fW.B,fl994)2SCC22 is that "In a case based on circunristantial evidence, the circumstances from which the Gonclusionof guilt is to be drawn have notonlyto be fully established but also that all the cirGumstanees so established should beof a conclusive natureand consisitent only with the hypothesis ofthe guilt of the accused. Those circumstances should not be capable of being explairied 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 theaccused. It needs no remihder that legally established 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 lest suspicion taKes the place of proof." (9) In Bodh Rai aliasBodha and others -vs- State 6f JaHimu andKaslimir.AIR 2002 SC3f64,the ApexCourtlaid down that there is no doubt that conviction cah be basedsolely on circumstantial /^ '?^^saascw-s -f Criininal Aopeal No. 164 of2003 evidence but the conclitions precedent before conviction could be basedon Circumstantial evidence.must be fully established. Theyare: 1) the circumstances fromwhieh the conclusion of guilt is to be-drawn stiould be fully established. The circumstances concerned 'must' or 'should' and not 'may; be established; — 2) the facts so establishedshould be consistent only with the hypothesis of the guilt of the accused, thatis.to Say, they Should not be explainable &n si^y other hypothesis except that the accused is guilty; 3) the circumstances should be of a conclysive 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 consistentwith the innocence of the accused and must show that in all human probability the act must have been done by the accused. About the last seen theory, the Apex Court held that the last seeri theory comes intoplay where the time gap between the pointof time when the accused and deceased wereseen last alive ahd when the deceased is found dead is sosmall that possibilityof any person other than the accused being the author of crime becomes impossible. 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 ofother persons coming in between exists. In the gbsence df any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous tocome to aconclusion ofaguilt in those cases. 'i: ^' !iiw ^•^. •^ Criminal ADpealNo. 164 of2003 '^. (10) Almost similar view was again taken by the Apex Court in the 'S matter of State of Goa -vs- Saniav Thakran & anr., (2007 (4) SBR 321. While passing the ,said judgment, the Apex Court has also referred to the decision of.Bodh Raj case (supra) and finally about the circumstance of last seen together.again it was reiterated that it would normally be taken into corisideration for finding theaccused guilty of ?t .^'•., the offence charged with when it ig established by the prosecution that the time gap between the point of time wheh the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility.ofany other person beihg with the deceased coutd completely be ruled out. i. • . • ' ' . • - (11) Shrawan Kumar (PW-3) and Jagannsith (PW-6) have been examined on the pointof last seen. PW-3, ShrawanKumar.deposed that on the fateful day at about 6.00 p.m., he was in the pesticide shop in village Parpodi. Jagnnath (PW-6), Kailash, Jeevan & Basant (deceased) were also sittirig in theshop. The deceased told him thathe is going along with Kailsah. Thereafter, the deceased, appellant- Jeevan and appellant- Kailash went towards village Patham on their bicycles. After4-5 days, he received message thatthe dead body of the deceased was fouhd in village Suradabri. PW-6, Jagannath, deposed that on thefateful day at about 6.00 p.m. both theappellants came to his shop and the deceased went along with the appellants. They had gone on their bicycles, he had seen them going towards village Suradabri. .^i.::^' .;' t i!ii i'l" /• Criminal AouealNo. 164 of2003 (12) In appreciation 6f evidence of these 2 witnesses, we fihd that tHeir 161 statements (Ex.-D/2 & D/4)were recorded on 5.5.2002 i.e. almost after about a period of 1 mohth and they had disclosed these facts at a belated stage. Jhe proseGUtion has not genuinely explained as to why such delay ^n/as caused in recording-evidenee of these witnesses. It comes in the evidence of Investigating Officer, B.S. Meravi (PW-7), in Para-27 that sirice;the 2 witnesses were residenteof District ,^.. • Durg and they had not met witKhim at an earlieroccasion, therefore, their statements eould not be recorded ori some early date.In light of the evidence of the lnv6Stigating Officer, when we examine the contents of the evidence df PW-3, Shrawan Kumar, he deposed in Para-8 of hiscross examination thatthe dead bociy of the deceased was reGovered before himand fhe Panc/inama ofthe dead body was prepared in his presence as he had gone to village. Suradabri after hearing that the body ofthe deceased has been found. He has further stated thathisstatement was recorded after 1-2 days after recovery of the body. PW-6, Jagannath, has also deposed vide Para-7 ofhiscross examination that he was present ih village Suradabri on the date of recovery of thedead body along with Shrawan Kumar and in village itself, on the very same day, he told to thepolice that he had seen the deceased goingatong with appellants. In light of this stateofevidence of these witnesses, we are afraidto place our reliance on the testimonies of these witnesses. (13) Even assuming that these witnesses had lastlyseen the decea^ed going'^long with theappellants, in our opinion, this solitary eircumstance would notlead to irresistible conGlusion that thS (' Crimin& AcBeal No. 164 of2003 appellants and none else had committed the murder of the deceased. As laid down by the Ap^ex Court in above judgments, the last seen theory comes into play where the time gap between the pointoftime When the accused and deceased were seen lasf alive ahd when the deceased was found dead is sosmall that possibility of any person other than the accused being theauthor of crime becomes impossible. Admittedly no straight jacket formula about the time gap can be fixed but the time gap must be reasonably short to rule outthe possibility of indulgence ofany person. In the presentcase even if we assume that the deceased was lastly seen aliveon 7.4.2002, then, as his dead body was discovered on 11.4.2002, looking to the long time gap of about 5 days, a possibility of any third person cbming in between cannot be V. fully ruled out in this case. (14) In our considered view, in the factsand circumstances of the case, the leamed Sessions Court erred in law in convicting the appellants on the solitary circumstance of last seen together. (15) In the result, the appeal is allowed. The conviction andsentences awarded to the appellants are setaside. The appellants areacquitted of the charges framed against them. (16) It is stated thatthe appellants are injail since 14.4.2002. Theybe set atliberty.forthwith, if not required in any other case. Sd/- .[ ChiefJustice '^ Sd/- , Sunil Kumar Sinha Judge vatti 1