HIGK CGiiRT Q? JUDICA’THEE AT EILAS?1?R€ gCHHATTIseAm-Ig ' TiiViSIiiI‘i EENCH*: HQE’BLE 3E‘ERI L42. BHADO§ &: HOEI’BLE $HRI V.K. $HRIVASTA¥A JJ. CRH¥HHAL AFFEAL ?}o.§54 OF 1995 Shobhnath Vsrsus ~ ‘, State of MP. {ncw ChhattiSgarh) JiiDGMENT F‘GR C§ESIDERATIGE sdl- L.C. Bhadoo Judge GH’BLE MR. JUSTICE Vii. SHRIVASTA‘V’A \A WK 5d,- V.K.Shrivastava ° Judge 13- ms'r mm JEEDGMENT an yyinééE‘MBERg 2005 Sdl— L.C.BHADOO Juge d a}: .1- ._2_,O_. an EV 1 w N HIGH COURT OF CHHATTISGARH. BILASPUR Criminal Apnea! No.854 of 1995 Shobhnath - Versus - State of Madhya Pradesh (110W Chhattisgarh) Pmsent: — Mr. AK. Prasad, Advocate Mr. G.K. ‘Ben'wal, Additional Public Praisecutor with Mr. Ravindra Agmwal, Panel Lawyer : For the respondent. For the appellant. W . DIVISION BENCH: — k HON’BLE MR. L.C. BHADOO AND A HGN’BLE MR. V.K. SHRIVASTAVA JJ. ‘ " J U D G M E N T (Delivered on 23M December, 2005) The following iudament of the Court was delivered bu LC. Bhadoo, J:- .By this appeal accused Shobhnath has questioned the legality of judgment of conviction 8,5 sentence dated 1.6. 1995 passed by learned Sessions Judge, Ambikapur District Sar‘guja in Sessions Trial No.381/94 whereby learned Sessions Judge after holding the accused guilty for commission of murder of Billiya Bai convicted him under Section 302 of the Indian Penal Code and sentenced him to '% undergo imprisonment for life. .The prosecution case, in brief, is that Tenai, father of Kumari Billiya, gave merg intimation (EX.P~10) in the Police Station Kusmi, District Sarguja on 22.7.1994 to the effect that on 17.7.1994 at about 9.00 p.111. in the night after “taking dinner Kumari:«:\Billiya along with her elder sister namely Budhni went for sleep in a separate room, he also went for sleep in his room and his wife had gone to Village Bhawanipur. At about 12.00 in’the midnight Budhni informed him that Billiya is not in the house, therefore, a search was made by him in the night to trace, Billiya. He \al_so enquired from the relatives, but Billiya could not be \ \ traced out. Today at about 3.30 pun. Faiku came and informed him that a dead body of fomalo i$ lying near the Galphula drain (Nala) and flosh of legs 8a hands héfVC besn eatsn by the wild ahimals, however, her face. its intact and l l from the. face it can be identified that the. body is of Billiya Bai. Kumari Billiya Bai was having illicit relations with Shobhuath and she. was pregnant by ,four months. A Panchayat in the village was.convened in which Shobhnath was also called and on enquiry, he informed that in the fateful night Billiya Bai hame to his house and in the same V.‘ night. he left Billiya Bai near her house. On receiving the merg intimation, Dehati Nalishi (EXP-13) was prepared and based bn that‘ F.I,R. (EX.P-13A) was registered. The Investigating Officer left for the scene of occurrence and after giving notice to the Panchas (EX.P~3)‘:‘prepared the Panchnama (EX.P‘4) of the body. Dead body of Billiya Bai Was sent for postmortem examination to the Primary Health Centre, Kusmi, Where PW—6, Dr.T.Sai conducted the postmortem on the body of deceased Billiya Bai and prepared the postmortem report EXZP~8 in which he opined that cause 65 mode of death is not known in absence of Vital organs 85 bones and duration of death is about 6—7 days. Site lplan (Ex,P—12) was also prepared by the Investigating Officer. During investigation it was found that Billiya Bai was ‘having illicit relations with Shohhnatlr and in the fateful night she went to house of accused Sl‘fobhnath from where Shobhnath took her towards the Galphula Drain (Nala) and pushed her in the drain. . After completion of investigation, the charge sheet was filed in the Court of learned Chief Judicial Magistrate, Ambikapur, who ‘in turn committed the case to learned Sgssions Judge, Ambikapur for trial. .The prosecution in order to prove the. charge against the accused examined 10 Witnesses. The statement of accused was also recorded by learned Sessions Judge under Section ()A 313 of the Cr.P,C. in which he denied the material appearing against him and stated that he is innocent and has been falsely implicated in th€ crims and the Witnesses had deposed against him on account of the animosity. '.Lear11ed Sessions Judge after hearing the argun’lents of Additional Public Piosecutor and counsel for the accused, convicted and sentenced the accused in the manner as mentioned in Para~1 of this judgment. .We. have heard Mr. Prasad, learned counsel for the accused/appellant 65 Mr. ' Beriwal, Additional Public Prosecutor with Mr. xAgarWal, Panel Lawyer for the. State‘liespondent. . As far as the question of involvement of accusediappellant in committing‘ the murder of Kumari éilliya Bai is concerned, learned counsel for the accused/appellant argued that the Whole case rests on the'€circumstantial evidence, there is no direct evidence in this case and as per prosecution case itself Kumari Billiya Bai left her paternal house in the night of 17.7.1994, Whereas her dead body was found on 22.7.1994 near the Galphula Drain (Naia) and there is no evidence that What happened in between i.e. between 17th to 22nd July, 1994. He further argued that even the doctor (PW-6) could not give the definite opinion regarding cause of death on account of missing of limbs and bodv was eaten bV the Wild animals. d . On the other hand, learned Additional Publie Prosecutor for the State supported the judgment of the trial Court. .Having heard learned counsel for the parties, we have perused the impugned judgment and evidence available on recbrd. It is true that the Whole case rests on the circumstantiai evidence and there is no direct and ocular :(x gvidence in this case to connect the accused/appellant with the crime in question. In order to con‘vict an accused. based on the. circumstantial evidence, the Hon’ble Apex Court in the matter of Dhananjoy Chatterjee Vs. State of W.B. reported in (1994) 2 SCC 220 has held that; “In a case based on circumstantial the circumstances from which evidence, the: conclusion of guilt is to b6 drawn hava not only to b6 fully establishéd but also that all tho circumstanccs so established 9 should b6 of a conclusive naturo and consistent only with the hypothoSis of tho guilt of the accused. Thoso circumstances should not b6 capable of busing cxplaincd by any othcr hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any u ‘ masonable ground for the bclief consistcnt 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, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof.” c 10. Now, we shall proceed to examine the evidence, which has been adduced by the prosecution in order to connect the accused/appellant with the crime in question i.e. The deceased Kumari Billiya Bai was last seen together alive with the accused/appellant in the night of V Q 17.7.1994. 'é'.‘ The accused/appellant was having illicit relations with deceased Billiva Bai, on account of that she was pregnant by four months and as such deceased Billiya Bai was pressing him to keep her as his Wife and as the accuse‘diappellant was already married, therefore, in the fateful night, accused/appellant took Billiya Bai towards Galphula drain (nala) and’ committed her murder by pushing her in the said Galphula Nala. 11. As far as Point No.1 is concerned, PW-2 Parvati—mother of accused/appellant, even though she has turnedhostile, has stated in her evidence that in the fateful night she along u», with her husband, accused/appellant and his wife namely éQ Savatri was at 1161‘ r€sidenca D€C€a86d Billiva Bai came to her rasidenca in th€ night, themaftar accusedfapp€1lant went out of the housc: along with Billiya Bai and at about 12,00 in the midnight he returned. In the cross-exagnination by the Additional Ppblie Prosecutor this witness has further stated that accused/appellant went with Billiya Bai to leave her at her residence and later on, she came. to know that dead body of Billiya Bai was found in the drain. The distance from her house upto Galphula drain is of one hour. It is also correct that Biiliya‘Bai was pregnant 0n account of physical relations with,the accused. PW-3 Bhagal has also turn‘ed hostile and he has not supported the prosecution case. PW—5 Ramsai, who was Sarpanch of Village Civildaang, has stated that the Panchayat was convened‘on the request of Tenai (PW—8),. father of deceased Billiya Bai, as Tenai was suspecting Shobhnath behind the murder. This witness has also turned hostile, however, in the cross—examination by learned Additional Public Prosecutor he has stated that before the Panchavat accused Shobhnath had admitted that in the Sunday/night Billiya came to his house and thereafter he. dropped her near the culvert by a cycle. PW~7 Narayan Ram has also stated that a Panch'ayat was convened on the request of Tenai- father of Billiya Bai, in which accused Shobhnath was also called and he admitted that he was haying illicit relations with Billiya Bai since last two years. This witness has also turned hostile. PW—8 Tenai, father of deceased has stated that accused Shobhnéith was having illicit relations with his daughter, he used to roam along with his daughter, she was pregnant by four months on account of physical relations with the accused and before the Panchavat accused Shobhnath had admitted the relations with his daughter and he also informed the Panchayat that‘he went along with Billiya Bai in the fateful night upto the culvert. PW—9 Savitri Bai, wife of accused/appellant, has also turned hostile and she has not supported the prosecution case. 1‘2. The law regarding connecting an accused with the crime based on the last seen theory, as has been ’laid by the . G ,. h 649 Hon‘ble Apax Court in tha matter of BODHRAJ ALIAS BODEA AND OTHERS Versus STATE OF JAMMU 85 KASHMIR reported in (2002) 8 SCC 45, is that; “the theory of last seen comes into play 5 where the time—gap between the 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 becomes x u‘ impossible. It would be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together. ” In the matter of Subhash Chand Vs. State of Rajasthan reported in (2002) 1 Supreme Court» Cases 702 the Hon'ble Apex Court has held that; ".‘...’I‘o constitute evidence of last seen together, the evidence'must definitely permit an inference being drawn that the Victim and the accused were seen together at a point of time in close proximity with the time and date of commission of ' 9 crimem.” 'd‘é In the matter of State of Karnataka Vs. M.V. Mahesh reported in (2003) 3 Supreme Court Cases 353 the Hon'ble Apex Court has held that: " ...... Merely being seen last together is not enough. What has to be established in a case of this nature is definite evidence to indicate that Beena had been done to death of Which the respondent is or must be aware as also proximate to the time of being last seen together... ." @ 13. In View of th€ abovs law laid down by the Hon‘ble Apex Court b€f0re convicting an accu3€d basal 011 the. last seeH together thsory, the Court is requirod to asccrtain from the. lagal clinching evidence that the. timo—gap betwean tho point of time when the deceased and the accused were seen last together alive and the death of deceased must be so close and proximate that an inference regarding the guilt of accused can be drawn and there is no possibility of coming any third person in between the last seen together and death of the deceased. There must be unerringly clinching legal evidence that should point towards the involvement of the acgtised in commission of mrder. Furher it is unsafe 1 to convict a person based on the last seen theory unless the last seem coupled with other cirumstances isv-indieator of th fact that the accused is the author of the cime. Based on this principle if we look into the above evidence, from the evidence of mother of accused namely Parwati (PW—2) and PW—S Ramsai, Sarpanch of Village who convened the Panchayat, it is established that the accused/appellant had admied that deceased illiya Bai came to his house in the / night of Sunday i.e. on 17.7.1994 and thereafter he along with Billiya Bai left the house and accused/appellant retured in the same night all alonev However, the body of deceed was found in dead condition on 22.7.1994. Wheter based on the above fact the accuse/appellant can be conected with the crime in question shall he dealt with later n? s 14. As far as the second point is oncerned, regaing this fact also there is evidence on the record that the accused/appellant was having illicit relations with Billiya Bai (since deceased) and she was pregna by four months. This fact can be’inferre fom the evidence of W—2 Parvati, mdther of accused in which she has stated at the Billiya Bai came to their house and from there accused/appellant left along with Billiya. PW-4 Mukund, ho was present in the Panchayat, has stated that th accused has admitted in the Panchayat that he was havin illicit relations with Billiya Bai. PW—5 Ramsai has stated that the accused u t c e r tt B n as h d n o 4 c rd nt d r P i th w e g admittad before thE Panchayat that he Was having illicit relations; with Billiya Bai and PW—7‘ has corroboratfgd the above evidence. PW—8 Tenai, father of deceased has gsiated that accused Shobhram wae having illicit relations €wiih~ her daughter Billiya Bai. Therefore, this fact stands established from the above evidence that the accused/appellant was having illicit relations with Billiya Bai. 15. Now based on the principle laid down by the Hon'ble Apex Court in the Dhananjoy Chatteijee’s case we have to examine whether the prosecution has been able to establish I. crime‘against the accusedfappellant. It is true that it has been proved by the prosecution that in the night of 17.7.1994 deceased came to the house of accused, from where § accused 85 deceased left together ‘and thereafter accused returned in the night to his house after leaving Billiya Bai. It is also established that the ac’é'used/appellant was having illicit relations with Billiya Bai. Now the question remains that Whether on the above facts it can be inferred that the accused was the author of crime in question. If we look into the totality of facts and circumstances of the case, we are‘of the considered opinion that the prosecution has not been able to connect the accused with the murder of Billiya Bai, for the reasons, there is nothing on record to show that the accused]appellant had ever any intention/plan to commit murder of Billiya Bai and there is nothing 6n record which indicate that why the accused]appellaiit'i‘liad committed murder of Billiya Bai. It is true that in Sunday night accused left with Billiva Bai from his house where Billiy‘a Bai came, thereafter he returned all alone and the explanation given by the accused]appellant in this regard before the Panchayatgwas that he left Billiya Bai near the Uculvert to ensure that she went'back to her house. Dr.T.Sai (PW-6) who conducted the postmortem has’not been able to establish through medical evidence i.e. postmortem report that Billiva Bai was murdered and what was the cause of death.‘When Tenai (PW—8) was knowing fully well that Billiya Bai and the accused was having illicit relations, she left the @ hous€ in the night of 17.7.1994 and 51m did not mturn and her whereabouts were not known, thon Why ht: had not iodged tho roport in the polico station on 18.7.1994 and why he had waited for five days till the body of Billiya Bai was found in tho Galphula drain (nala). Tho possibility of tha fact cannot be. rulod out that when the accused left Billiya Bai, she out of frustration must have gone somewhere e1se and thereafter she died. As has been held by the Hon'ble Apex Court that for connecting an accused in a crime based on the circumstantial evidence each of the circumstance must‘lge independently’ proved and chain of all the circumstances must be established that should point towards the guilt of the accusedland there is no possibility of innocence of ‘the accused and involvementof any other person in crime in question, 16. Looking to the time-gap between the pointvfof time when Billiya Bai was found missing and her dead body was found, cause of death could not be ascertained by the medical evidence and there is nothing on record which establishes that the accused was determined to finish Billiya Bai, we are of the considered opinion that the prosecution has not been able to establish the crime against the accused/appellant based on the circumstantial evidence. Therefore for the above reasons, the finding of the trial Court convicting the accused/appellant for committing the murder of Billiya Bai . d cannot be sustained. l7. In the result, the appeal succeeds and same is allowed. Appellant Shobhnath is acquitted of the charge under Section 302 of the Indian Penal Code and conviction 63 sentence imposed upon him are hereby set aside. Appellant Shobhnath be; set at liberty forthwith if not required in any ‘ ~ ‘An 7 other case. d5 Roshanf- {i Sdl- l 5d,- L.C. Bhadoo 1 V i V.K.Shrivastava JUdge Judge '"'_"2}‘i7262605' Q_3-12.2005