@ Mb HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal A eal No. 941 of 2003 APPELLANT (In Jail) Paharik Age 47 Yrs. S/o Anjor Kewat R/o Bhatree, PS. Hirri, Bilaspur, CG. Versus State of Chhattisgarh. RESPONDENTS Crirfminal Aggeal under Section 374 of Criminal Procedure Code, 1973 DB: Hon’bie Shri JusEIce T.P. snarma & Hon’ble Shri Justice N. K. Agarwal, JJ Present : *‘Shri Ram Krishna Sharma, Advocate for appellant. Shri Rakesh Jha, Deputy Govt. Advocate for the State. x r ‘ ORAL JUDGMENT (Passed on 11“ day of January, 201 O) Per T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 09.04.2003, passed by the Additional Sessions Judge Mungeli, in Sessions Trial No. 220/02, whereby & whereunder learned Additional Sessions Judge, after holding the appellant guilty for the offence punishable under section 302 of the lndian Penal Code, convicted the appellant, and sentenced to undergo imprisonment for life and to pay a tine of P5 2,000/-, in default of payment of fine to further undergo rigorous l A l i . imprisonment for one year. 2. Judgment is impugned on the ground that without there being credible evi ence to connect the appellants in the crime in question, the Court below a has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. Casfe of the prosecution, in brief, is that on the fateful day of 04.03.2002 at abzlt 10 AM the appellant was collecting wood. Ku. Rajni (PW-1) 9 years old xhild witness was also present with him. After sometime the appellant and eceased Dhelau went from the place where they collecting wood and -aem whe the deceased did not come back, the villagers made a search and on 05 R vide Ex. P/12 and Merg intimation was recorded vide Ex. P/23. The s O m i D t b e E un g a ) ‘, t e 06..2002 dead body was found near the bank of river. FI was lodged l invetigating flicer proceeded for the scene of occurrence and after sumoning the witnesses, inquest over the dead body of deceased Dhelau wasprepared vide Ex. P/5. ead body of the deceased was sen for autosy to Public Heath Centr, Saragaon. Autopsy was conducted by Dr. AR Banjare (PW—5) and fod followin injury- i ‘k Lacerated wound over righ sid of the head including fracture of tempore occipital region. Cause of death as a result of fracture of the scalp bone and dead body was found 3 to 5 days from the conduction of autopsy report i.e. from 07.03.02; 4. Plain soil and bloodstained Soil were recovered from the spot vide Ex. P/14 & P/17. Sealed cloth and shoes of deceased was recovered vide Ex. P/1 7. The appellant was taken into custody on 25.03.2002 vide Ex. P/1. Axe was rdcovered at the residence'of appellant vide Ex‘. P/2. Blood stain shirt was recovered from the appellant vide Ex. P/3. Seized articles were sent for chemical analysis vide Ex. PI18. Presence of blood was contirmed over the aLe and shirt vide Ex. PI20 which was recovered from the appeilant. 5. Statement of witnesses were recorded under Section 161 of the Criminal rocedure Code, 1973 (in short ‘the Code'). After completion of investigation, charge sheet was filed before the Judicial Magistrate First Glass. Mungeli, who in tum, committed the case to the court of Sessions udge, Bilaspur from where the Additional Sessions Judge, Mungeli, u received the case on transfer for trial. 6. ln order to prove the guilt of the appellantlaccused, the prosecution has amined as many as 13 witnesses. Statement of the accusedfappellant l": l x @ wa also recorded under Section 313 of the Code where he denied the s‘ circmstances appearing against him and claimed innocence and false imication. pl Afte affording opportunity of hearing to the parties, the Additional Sessions Jude, Munge has convicted and sentenced the appellant as aformentioned. e Wehave heard Shri Ram Krishna Sharma, counsel for the appellant and i Shri Rakesh Jha, Det puy Govt. Adi/ocate for the State/respondent and persgd the judgment mpugned as also record of the Court below. Learned counsel~ appearing for the apellt vehemently argued that convictiqi is based_ o last sen theory and substantial evidence of child n e witss Rajni (PW-1) i.e. granddaughter of deceased. ln case of conviction ne based on last seen theory, the rosecution is requiredto prove that the time p gap between the point of time when the accused and deceased were seen lt alive and when the deceased i found dead would be so small so that as s ossibility of any person other than the accused being the author of the ime become impossibl. The court below has committed wrong and cr e sntenced the appellant aforementioned. e 10. On the other hand, learned sate counsel supported the judgment impugned and argued that the prosecution has proved its case beyond all s adow of doubt which is suflicient for holding the. appellant guilty. He f rther submits evidence of Rajni (PW‘1) i.e.‘granddaughter of deceased is sufficient for drawing an inference that the appellant has committed death of deceased Dhelau. The deceased was seen alive last time with the appellant a d thereafter dead body of deceased was found near the bank of river. 11. tin order to appreciate the contentions of the parties, we have examined the e idence available on record. ln the present case, homicidal death of the eceased Dhelau as a result of fetal injury found over the headregion have not been substantially disputed by the appellant, otherwise it is also \ \ u ‘r g ii / u i pan p esta‘biished by the evidence of Dr. AR. Banjare (Pwo5) and autopsy report \ Ex. jP/7, in which it reveal that as a result of ante-mortem fetal injury was founH over the head of thevdeceased and the same was sufficient for causlng death of deceased. As regards the complicity of the accused/appellant in the crime in question is concerned. in the present case, Rajni (PW-1) 9 years old child witness has deposed that she alongwith her grandfather and the appellant went Bar Ghat; to collect wood. After collecting the wood, the appellant and deceased went from the place and the appellant directed her to go to the house. She went to her house but the deceased did not come back then she asked to the appellant about her grandfather then he annoyed. She alongwith other persons started to search her grandfather. Dead body was first time seen by PW-12 Jhagar Ram after two days'of the alleged last seen incident near the bank of river. 13. Prosecution has also collected the evidence relating to disclosure of the fact i.e. lrecovery of weapon at the instance of appellant vide Ex. P/1 & Pl2 and recojvery of bloodstain cloth vide Ex. P/3, the same were sent for chemical analysis vide Ex. P/18 and the blood was not found over the axe and shirt whidh were recovered from the appellant. In the absence of bloodstain over the axe and cloth, the evidence relating to disclosure of statement is of no use. In case of conviction based on last seen theory, the prosecution is req ired to prove that the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead would be so small, sufficient to rule out the possibility of any s l i persLn other than the accused being author of the crime. é; 14. While dealing with the same question in case of Bodhraj alias Bodha and others v. State of Jammu and Kashmir’, the Supreme Court observed in para 31 as under : r “31. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were i seen iast alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime become impossible. It would be difticult in some cases r to positively establish that the deceased was last seen with the § accused when there is a long gap and possibility of other persons V coming in between exists. lnr the absence of any other positive : evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt imthose cases. In this case there is positive evidence that the. deceased, A-1and A-2 were seen together by witness i.e. PWs. 14. i 15 and 18; ih addition to the evidence of PWs 1* and 2.” 15. In case of State of UP v. Satishz, the Supreme Court observed in para 22 ‘ as under : “22. The last-seen theory comes into play Where the time-gap betweenthe point of time when the accused and the 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 the crime become impossible. lt would be difticult 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. ln the absence of any other positive evidence to conclude‘that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. ln this case there is positive evidence'that the deceased and the accused were seen together by witness PWs 3 l In the present case, if the evidence of Rajni (PW—1) child witness and Jhagar Ram (PW-1 2) are admitted then the inference may be drawn that deceased was seen alive last time with the appellant on 04.03.02 and he was found dead on 06.03.02, and in between i.e. 04.03.02 and 06.03.02 the appellant was present in village and. has categorically denied that the dgleased was with him during those days as held in cases of Bodhraj a. (Slpra) and State of UP v. Satish (Supra), and considering the long time l gap between last seen theory and death of deceased, it is difficult to hold l i (8)s C45 l l and 5, in addition to the evidence of PWZ.” hra. 1‘ JF(3)s c114 r e Qt? that ‘the appellant is person author of the crime‘ Suspicious however, cann‘ot take place of the evidence and prosecution is under obligation to prove its case beyond all shadow of doubt. In the present case, evidence adduced on behalf of the prosecution relating to last seen theory which is not sufficient for drawing an inference that the appellant has committed homicidal death of deceased Dhelau amounting to murder. The ‘Additional Sessions Judge, Mungeli has convicted and sentenced the appellant as aforementioned withodt appreciating the long time gap betweerylast seen theory and death of deceased and thereby committed illegality in the impugned judgment. 18. For the féregoing reasons, we are of the view that the conviction & order of sentence dated 09.04.2003, passed by the Additional Sessions Judge Mungeli, in Sessions Trial No. 220/02 is not sustainable‘under the law. The appeal is allowed. The judgment of conviction under Section 302 of the lndian Penal Code and sentence to undergo imprisonment for life and to pay a tine of Rs. 2000/— imposed upon the appellant is hereby set aside. The appellant is in custody.‘ He be set at liberty‘at once and be released if ’ ‘ Sahu ndt required in any other case. 1 Sdl- Sd/— E T.P. Shanna N.K. Agrawal Judge Judge