8;^l;af(ltl»i&N>i ^' M.(Cri.) »< * ' <•.; 1, /200J 9 INTHE H3NRABLEHtGHa^IRTOFJXl3CATL'RE AT BILASPLiR Cri...A. .-M.»?^»^?</^> . BB Uif(a-idra»s/oGuhaam^^day. ( 25 is. Bio3sainuda distt- Rapur. Versus . ( toj il8 Stete of C.G. < / XI-HC-22 an^r^ R.'IWSTI^T' Still'shH^T 'l^- :.3r j^ •^li'tilc'l'il, a'a'K'f'Ko, RifiiMy OT^Tq^W .^^(^.jfctao^^p^oo ft^g' WI-IffT aiffl^h 3<i^i gwiig'i^rfstr 41'illri'ifl-t iniRTT'ff fWt <R|'KK ^iaiRftiaT'cST t5.B.; HON'BLE SHRI L.C. BI-IADOO& HON'BLE SHRI DILIP 'RAO SAHEB DESHMUKH. JJ. 20-6-2005 Shri Abhay Tiwari, coun^el forthe appellants. Shri U.N.S. &eo, PuU aggrieved by the judgment (^ lic Prosecutor for the State/ respondent, ' Oralorder. The qccused/appellant^ have preferred this criminol appegl throygh Superintend^nt, Central Jail, Raipur, being f conviction and sentence dated 29-6-98 passed byJths Speci^il Judge, SC/ST, Raipur, whereby learned Special Judge aftei^ hotding the accu^d/appellants guilty under Section 302 of ^t+ie I.P.C., sentenced each of the accused/appellants to undergj) ;imprisonmen1" for iife. At the same time, he acquitted t(ie accused/dppellants from the offence under'Sgctions 3(2)d ;~*v Castesand Scheduled Tribes y) and 3(2)(vi) of the Scheduled [Prevsntion of Atrocifies) Act and Section 201 of the I.P.C. We have heard 6hri Ab|iay Tiwari, tearned counsel for the appeljaiyts ouid Shri U.N.S. C)e((, Public ProseGutor for the State/ (Aii>|.iUHfcltifll.— Pi4 XI-HC-22 3n^!TS|iT fSFTRsn^T wti trf^a % ^-kiwict'ii, <sTiTwi«, ficiiyy. ;3T^T^?rar. . .. v HIHMI StlHltt) "" "" •••••••••••••••^ 200 3f^RT?TgW:Bf?(t _, <*i-!<Icf4)-<nTOTr ?' tssit <Rit<i< ^;3Ti^lTaT!^T Brief facts leading 1^o filing of this aippeal are that Mangtin Bai was mdrried-to cjne Bhagatram (PW-17) and she was residing vuith him at viltage;4haroda. However, in the month of February 1997 accused/appejlants Umend Yadav or\d Khileshwar Yadav took Moaigtin Bai wi1}h them. Thereafter, Shagatram, husband of Mdngtin Bai, st4rted searching her in the villages \ . - 1 ' Dhamandeeh, Kherjhiti and A^udagaon, but hecould not traceout her. However, in the montl^ of March, 1997 Mangtin Bai nnd accused Umend came to vil caught them and hqnyed o^er them to. Police Constable Ram Kumar who happens to be ^n duty in the school during the examination. Thereafter, cfonstable Ram Kumar handed over them to yillage Kotwar Prem Station Chura. As the head Shankar who took them to Police fconstable of the*Police Station was Nagoi to the residen£eof his] and Mangtin Bai stayed ther -.: / age .Mudagaon, then 'the viiio,gers not in the police station, the^efore, Kotw'ar left accused Umend and Mangtin Bai at the polic^e station and they went to village brother AAaniram. Accused Umend ther^ for one day. Brother of Umend Maniram expressed displeoiSi^re cbout the conduct of Umend, therefpfre, Umend Yadav anfcl AAangtin Bai left the house of -3< XI-HC-22 s^t -^Mivi^, •STS'W'W, Rictiy^ 3n^Tq?^ ([mc'iT shww WI; 200 f^Rg: sn^T?>r f^i'b a'n^r snxi'* flf^tT ^R 'sbl*l(<1<fl-1 HW(lT^:te'^'<R]t<K ^.3l1^T317^T a^ Maniram. However, ISulari suitcase to Mangtin Bai. . Bai, wife of Maniram, gave one On 23-4-97, in betwe,yn 1:30 pm to 2 pm,PW-16 Sirish Jain saw AAangtin Bai <ind th^ Bai that she will get liquor at 97, Kuni Bai (PW-7) saw the she informed PW-1 Bpjjlal. reached dn the spot ond the Station Chura. On receiving spot and recorded Dehdti Ex. plan, after giving notice to body Ex.-P/3 was prepared. accused persons. He also saw one cycie ouid suitcase with therp. All the three were in drunken condition. Mangtin Bai was jisking for more liquor. When she asked fbr more liquor, then t^e accused persons asajred Mangtin ^iltage Nagoi. Thereafter, on 26-4- plead body and suitcase, therefore, \', On hearing this, some yillagers matter was reported to the Potice this report, Police reached on the I-P/1 on 27-4-97 auid preparedasite [Panchas, .Panchanama of the dead The postmortem wsss conducted on into poss^ssion blood stained .s / banglea, suitcose and empt/ the site itseif by PW-19 Ej>r- Sanjay Dadu and he prepared '-» postmortem report~Ex<P/2^ in which he mentioned that the dead body is 2-4 week old. During the investigatii^n, the Investignting Officer took soil, plain sojl, clothes, hair, broken liquor bottle. He took one Avo" tl-f-XS-i'S ^!Gt)CTS t| |ci-y^t»"^l<ti*ic&J^l<»K-f!^ W^t^HT^ 3flit?T:1CR^(^rfg5Rg) ai^IWlS-fi'hi' wiTan^ilsP'iw -sCTsN^ifia SII^ST itBtltnA-l ITTBfi|ffe^i? !|?3|Ri*13II^?T .:.(- :..'^ cycle into possession and charge sheet'was filed commission of the offencSl 34 of the I.P.C. ond Sectidri Scheduled Trihes (Preventfon Perusal of the jud9rjient accused/appellonts have b^ the deceased ond the togetHer on 23-4-97 by coriviction rests on the cir|< no eyewitness to the incid4nt. circumstantial evidence, based on circun'ss+cin+ial eiA but it must satjsfy-itself inference of guilt could unimpeachable eyidence circums+ances put'tageth^r bu+also complete 'the chailp theguitt of •the aecused d(id vthich js not consistent w\ acci/sed. . : |after completion of the investigation, agaipst the accused/appellants for under Section.302 read with Section 3(2)(v) of the Scheduled Castes and of Atrocities) Act. ; of the trial CouF-t shows thqt the ien convicted on the sple ground that laccuieci/appellants were tast seen PW-16 ©irish Jain, therefore, the ^cumstantial evidence only, as fhere' is r. In order to pest the conviction on liaw on the poinf isthat ina ciase \dence the Courtcan record com/ction }fhat 1he circums+ances from which an ^se drawn have been established by. by the prosecution and that all the are not only of a conclusive nature so fullyas to unerringly poinf only to are not capable of any explcination ^ii ihe hypoihesis of •the guilt of the seh-tled fet/ Sr IHl; -3. XI-HC-22 3I1^?I?iT feiR;sn^T airi^gSg' »t SRi II I; i •T^ •<iwid<<, (STfiy'is, Riniyy (fTqcffSKHIW STT^rq^W ^Fg. W[. 2.00 311^T SRIRR gf?(T -$' In the lightof the abc^ *wlrf-!ti^ WI??f ^' fec^ <Rt^K ^.sf^ITSTi^T ve principte, if we examine evidence available on record, then-the^e is,pniy one witness who issaid to I i , have seen the accused with it'he deceased fast time on 23-4-97. PW-16 (Sirish Kumar Jain hasl 97, Wednesday, he was goino^ thinking that these persons Istated in his evidence that on 23-4- .from village Kosami to Bamhani for coii'ecting rnoney. When he i^as mid way, he saw a lady who was undre'ssing herself. Two per^ons were standing nearby. When he thought as to why these p^rsons are standing in the forest, must be teasing the lady, he went tqwards them in order to he p that lady. When he reached near them, he saw that iady v^as in drunken condition ond the accused/appellants were thei^e. Accuse-d Channu Sahu asked her that let us go to the house. The lady was repeatediy asking for more iiquor, then the accu^ed persons said that let'us go to » village Nagoi, there they witl provide her liquor. Accused Umend Yadav was abusing the ia^ly. However, he left the scene. Thereafter, on SundSy he co^me to know.through one Saneshram Deewan that one dead body (las been found. He became anxious to see the body and when h^ <)uent to the spot, ha saw the dead body »yds in advance stage of decomposition and one suitcase was lying at some distance of the body. After seeing the suitcoise, he li'il. »,i...:'"' XI-HC-22 -ys?^ l4lcf^, ESrfi y' i<s, Rini+i y< STT^T'^W Hpicii ghw*) V^ 200 sn^r^r fs7N;3.n^?T Sll1 ?fN' is recollected that the body two persons and those. in the Court. In order t6 ho!d a eyidence the Hon'ble Ape^ AilAS 30WA ANQ KASHMIR reported in (20^2) "the theory of the time-gap the accused and alive and when so small that than the accu; crime becomes i^ ^^lfeTsft^ ITOICTT tf fecA'fi^TtOT; ^grf^irsR^r. of that lady which he saw along with Lpersins^vere the accused persons present p^rson guilty on the basis of last seen Court in the matt-er of BOESHR^J OTI^ERS V. ST^TE OF JAMMU AN& 8 SCC 45 held that: libst seen comes into play where the point of time when the deceased were seen last the deceased is found dead is ijissibility of any person other id being theauthor of the tpossible." beltween pjissibil w The Hon'ble Apex "It would be| conetusion of other posftive accused and together. irt further Held that: hazardous to come to a g^ilt in cases where there is no 4vidence to conclude that-.'fhe deceased were last seen J^refore, last seen tHie evidence is a weak type of evidence oind wjfhput corroboration fromother evidence it is not always _{^_?fsit) 3n^?r^r iS?ITO3tI^3T irfStf S*KW s v !? . 3:q'.'<<i<)ts't<i,^'TiraTR^Rdiy^< 3TT^rT5T^ flWc'(T5h*ilfln W[ 200 an^?TrorRFtsfer -^ particularly, when the time <*i-iifa-ift-i uiiiat'irterA<,i(aiyii< ^ aif^ir 3:f^?r safe to convict the accused ^olely on the grpund of tast seen ond gop^between the offerice ond last seen is of oibout 3 days, fhen it is not safe to convict the o.ccused/appeltonts on the Vps\s o-f last seen evidence of Sirish Jain because there is noevitpence on record as to what happened in between 3 days where the deceased went and in whose, compafty she Vms. In order accused/appellonts. Even th opinion that the evidence to connect the appeilants with the murder of Mangtin Bci, the^re is no other evidence except the evidence of Sirish Kumar jrain. No articies belonging to -t+ie decaased have been. reco^ered from the possession of the 2 trial Court at one stage was of the is a weak type of evidence, but ultimately believing tha^ evidence has convicted the accused/appeliants for the ^nurder of Mangtin Bai on the basis of tast seen. I In our'coQSidered opi^tion, ih view of the above settied law and evidence avgitable on ^ecord, the prosecutiop, has utl'erly fgiled in connecting the ac^used/appellants with the murder of Ma^Stin Bai as such the ju|Jgment of the tricl Courtcannot be I,therefore,there |s no alternative before us except to allow this appeal and set asjide the judgment of the triai Gourt XI-HC-22 sniSTW f^icbgn^T ai'<i?h?rf6g' Bqrve 3^ ^H^T^, STflVFS; :lat'11«y 3n^TT;W • .^^^.^..s^/a^ i^ps HTHMI StiHrai 2QO <^i<<Ici4i'i iTm^rf^' te^f <[^<<:,i< ^afKitisn^T convicting the accused/appell^n^-s for commission of the offence under Section 302 of the I.p.C. for cornmitting the murder of i Mangtjn Bai. In the Fesult, the ap^peal is allowed and the accused/ f. x^fcA'14*- the effenee under Section 302 of <t/ ~ . ^ oppellaints are acquitted the I.P.C.. They be set at libprty with immediate effect, if not require^ iri dnyother case. Sd<- L.C.BHADOO Judge < / ~^ Sd/- Dilip Raosaheb Deshmukh Judge / :^/'1i i:M ^ s^l %il ([ft^^2r)