^•~ HIGH COURT OF CHHATTISGARH : BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI N.K.AGRAWAL, JJ. APPELLANTS (in jail) RESPONDENT Criminal Appeal No. 583 of 2010 1. Anand Kumar @ Raja S/o Pannalal, aged 22 years, Occupation Cultivation, R/o Rajmilan, Mainhawapara, Police Station Bijpur, District Sonbhadra (U.P.) 2. Umashanker, S/o Laxman, aged about 27 years, Occupation Cultivation, R/o Rajmilan, Mainhawapara, Police Station Bijpur, District Sonbhadra (U..P.) VERSUS State of C.G. through Police Station Raghunathnagar, Distt. Surguja (C.G.) CRIMINAL APPEALUNDER SECTION 374 (2) THE CRIMINAL PROCEDURE CODE Appearancg: Shri Dayaram Sharma,Senior Counselwith Smt.Rani Pathak, counse! for the appellants. Shri Sanjeev Kumar Agrawal, P.L. for the State. ORALJUDGMENT (Passedon31.01.2011) Per T.P.Sharma, J. Challengein this appealis to the judgment of conviction an^-erder of sentence dated 27.07.2010 passed by the AdditiongL-SeSsions Judge (F.T.C.), Pratappur, Dist. Surguja (C.G.) in Sessions Trial No. 109/2009 whereby and whereunder after holding the appellants guilty for the commission of culpable homicide amounting to murder of Shakti Singh, tKe Court below convicted the appellan'ts under Section 302/34 of the I.P.C. and sehtenced to life imprisonment with fine of Rs.1000/- and in default to undergo further onempnth'Rrh-each- rfys^ '^ti 2. The conviction is impugned on the ground that there is not even iota of evidence against appellants and despite that the Court below has convicted and sentenced the appellants as aforesaid and thereby committed illegality. 3. As per the case of prosecution, on 5.3.2008 at about 7.00 P.M. both the appellants came to the house of thedeceased Shakti Singh, who was inside his house. Both the appellants called Shakti Singh and after having some discussion, they took Shakti Singhalong with them on their motor cycle. Thereafter, Shakti Singh did not return till night. On second day morning oneletter Ex.P.12 demanding ransom was found in front of the house ofthedeceased. Thereafter, Shakti Singh was notfound alive. During investigation of missing person, accused Anand KCimar @ Raja was taken into custody. He made disclosure statement vide Ex.P.1 of motor cycle and dead body of Shakti Singh. Father of Shakti Singh and other persons made search, then dead body of Shakti Singh was found in forest. Dehati Merg was recorded vide Ex.P.24. Finally, merg was recorded-ylete Ex.P.25. F.1.R. was lodged vide Ex.P.21. Dead body of Shakti Singfi was recovered at the instance of both the appellants vide Ex. P.2. Motor cycle was recovered at the instance of appellant Anand Kumar vide Ex.P.3. One marriage card was also seized vide Ex.P.5. After summoning witnesses vide Ex.P.26, inquest over the dead body of the deceased was preparedvide Ex.P.27. Spot map was prepared vide Ex.P.8 and P.11. Patwari prepared spot maps vide Ex.P.13 and P.14. Registration document of motor cycle was seized vide Ex.P.15. Dead body was sent for autopsy to Government Hospital, Wadraf Nagar vide Ex.P.27. Dr. R.B. Prajapati P.W.12 conducted autopsy vide Ex.P.23 and found the following symptpms / injuries: 1) -Dead body was decomposed. 2) Hyoid bonewas dislocated. 3) Bones were separated. Cause of death was opined to be Asphyxia as a result ofthrottling. M °^t"; 4. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short 'the Code'). Sealed articles of the deceased were seized. After completion of investigation, charge sheet was filed before the JudicialMagistrate First Class, Wadraf Nagar, who in turn committed the case to the Sessions Judge.Ambikapur. The learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the appellants, prosecution examined as many as 13 witnesses. Accused were examined under Section 313 of the Code where they denied the circumstances appearing against them and pleaded their innocence and false implication in crime in question. 6. After providing opportunity of hearing to the parties, the learned AdditionalSessions Judge convicted and sentenced the appellants as aforementioned. 7. We have heard Shri Dayaram Sharma, learned Senior Counsel with Smt. Rani Pathak, counsel forthe appellants and Shri Sanjeev Kumar Agrawal, learned counsel for the State and perused the record of the Court berlow and impugned judgment. 8. Learned counsel for the appellant vehemently argued thatln the present case, prosecution has utterly proved the intention or mofive for gausin9,,c.u.lpab|9,^p,miej.d^,w,i^tjng.to,,(r)yrder otShakti Singh, As per evidence P.W.2 Ram UdaySingh.fatherofthedeceased and P.W.3 Qabil Singh, brother of the deceased, both the appellants had called the deceased some days before his death but there was considerable time difference between the last seen theory and recovery of dead body, therefore, the possibility of their presence in the company of the deceased cannot be ruled out. Even otherwise.-last seen theory is not considering circumstarrce or sufficient circumstance for conviction of the appellants that too for the commission of heinous offence punishable under Section 302/340fthel.P.c. 9. On the other hand, learned counsel for the State/respondent vehemently opposed the appeal and submitted that presence of the .fc^.-———• r3 appellants has not only beenseen in the company of the deceased who was alive last time, but virtually the appellants had kidnapped/taken the deceased with them and thereafter the deceased was not found alive. In these circumstances, present appellants were under obligation to offer explanation as to why they left the company of the deceased and in the absence of such explanation, the only inference would be possible that only the present appellants have committed culpable homicide amounting to murder of Shakti Singh. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death as a result of throttling of Shakti Singh has not been substantially disputed on behalf of the appellants, on the otherhand alsbestablished bythe evidence ofDr. R.B. Prajapati P.W.12 and his autopsy report Ex.P.23 and death of Shakti Singh was homicidal in nature. ' 11. As regards the complicity of the appellants in crime in question, conviction gf the appellants is substantially based on the circumstantial evidencer ^ The prosecution has tried to adduce the following circumstances: 1. On 5.3.2008 at about 7.00 P.l\4. Shakti Singh was alive. Shakti Singh was present in his house at village Kamalpur. 2. 3. 4. 5. 6. 7. Present appellants came to the house of the deceased ShaktiSingh. , . . ] ShaktiSinghwascalledbyboththeappellants.; : After having some discussion, both theappellants took Shakti Singh with them in presence of P.W.2Ram Udai Singh and P.W.3 Qabil Singh from the houseof Shakti Singh. Thereafter, dead body of Shakti Singh was found in the ! ••-.'^>0</l.MlU).f .Ui.;t-~? rit.;'' --. -:-.;• •..••'•. •,• ". .•'..;.,' Dead body of Shakti Singh.has been recovered at the instance of the appellant Anand Kumar @ Raja. 12. In ordei; to prove conviction of the appellants on the basis of circumstantial evidence, as held in S(a(e of Goa vs. Sanjay Thakran & Anr. AND Subhash-.Chandra N^nda vs. Sanjay Thakran and Anr. 2007 AIR SCW2226, in which the principles of appreciation of circumstantial evidencewere reiterated in paragraph 13 as under: "13. The prosecution case is based on the circumstantial evidence and it is a well-settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests: \ (1) The circumstances, from which aninference of guilt is sought to be drawn, must be cogently and firmly established. (2) Those circumstances should be of a definite tendency unerringly pointing towards guilt ofthe accused; (3) The circumstances, taken cumulative, should from a chain so complete that there is no escape from the conclusion 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 andincapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not gnly be consistent with the guilt of the accused but should be inconsistent with his innocence". 13. In the present case, prosecution has substantially relied upon the evidenceof P.W.2 Ram Udai Singh and P.W.3 Qabil Singh, father and brother of the deceased Shakti Singh relating to last seen theory. P.W.2 Ram Udai Singh and P.W.3 Qabil Singh have categorically deposed that at the time of first part of incident, both himself and his father - Ram Udai Singh were present in the house. Both the above appellants, to whom they knew prior to the incident on account of marriage and negotiations of Shakti Singh, came to their house, they called Shakti Singhand after having some discussion both the appellants took Shakti Singh by their motor cycle before them. However, Shakti Singh did not return to his house and on second day moming one letter relating to demand of •ransom Ex.P.12 was found in front af their house. Finally, they made search for Shakti Singhand dead body was recovered at the instance of the appellants. The defence has cross-examined these witnesses at length but has not been able to elicit anything from their cross-examination ')•.,-'.•• i- to discredit their testimony relating to taking of Shakti Singh by both the appellants in their motor cycle. In their detailed cross-examination, they specifically admittedthat they knew these appellants prior to the occurrence of incident on account of marriage and negotiations of Shakti Singh. 14. P.W.1 Lanka Singh has also substantially corroborated the evidence of P.W.2 Ram Udai Singh and P.W.3 Qabil Singh: P.W.1 Lanka Singh has further deposed that appellant Anand Kumar @ Raja was interrogated by the police where he made disclosure statement of dead body of Shakti Singh vide Ex.P.1, despite he has denied the same in paragraph12 of his cross-examination: P.W.13 Investigating Officer N.S.Netam has deposed in paragraph 8 and 9 of his evidence that he had interrogated appellant Anand Kumar @ Raja and during the course of investigation appellant Anand Kumar made a disclosure statement of dead body of Shakti Singh vide Ex. P.1 and the same has been recovered at his instance vide Ex.P.2. Defence hasalso cross-examined this witness but has not been able to elicit anything in his cross-examination relating to disclostire'Statement of recovery of dead body at the instance of Anand @ Raja. 15. In the present case, as per evidence of P.W.1 Lanka Singh, P.W.2 Ram Udai Singh and P.W.3 Qabil Sihgh, the deceased was not only seen in the company of the appellants and was a!ive last time but also the present appellants had taken the deceased with them in their motor cycle from his house and thereafter the deceased was not found alive. Last seen theory is also one of the considering circumstances against the appellants: While dealing with-the eviderttiary value of last sben theory; ih thecase of Stateof Goa (supra) the Supreme Court held that in case of last seen together the proof of last seen together would be relevant if the prosecution establishes that in the intervening period there was no possibility of anyother person meeting or approaching the deceased at We place of incident pr befpre the cpmmission of the crime. Para 34 ofthe said judgment 'reads thus:- "34. From the principle laid down by this Court, the circumstance of last-seen together would normally be :^- ;L- .". /' (fp 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 and the deceased were found together alive and when the deceased was found dead is so smal! that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a 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 cpnsiderable long duration. There can be nofixed or'straightjacketformulaforthe duration oftime gap in this regard and itwould 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 perspn other than the accused, being the author of the crime; becomes impossible, then. the evidence of circumstance of last seen together, althbugh there is long duration oftime, can be considered as one ofthe 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 rio possibilityof any other person meeting or approaching the deceased at the place of incident or before the commission pf.thecrime.Jn the i.ntervening period, the proof of last seeri fogether would be relevant evidence. For instance, if it can be demonstrated by showing' that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility ofany intrusion to that place by anythirdparty, then a relatively wider time gap would not affect the prosecutipn case," While dealing with the question of last seen, the Apex Court held in the case oftiatti Singh v.State of Haryana, (2007) 12 SCC 471 that in case of last seen together the evidence of last seen by itself is not of much significance. It may, however, providefor a link in the chain. But unless the time gapvbetv/een the'-^lecease'd of havihg 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. r 16. In case of last seen theory, the accused / appellant is under obligation to explain the circumstances as to why the deceased received injuries and how he died. While dealing with the question of last seen together, the Apex Couri: in the case of Sahadevan alias Sagadevan v. State represented by Inspector of Police, Chennai, (2003) 1 SCC 534 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 accused 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 19ofthe said judgment reads thus:- "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 thesame 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 theappellants to satisfy the court as to how, . ^ where and in what manner Vadivelu parted company with *'- -^them. This is on the principle that a person who is last " found in thecompany of another, if later found missing, then the person with whom he was last found has to explainthe circumstances in which they parted company. In the^instant case the appellants have failed to discharge this onus.lntheirstatement under Section 313 Cr.P.C. they have nottaken 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 yponA-1 tp haye explained tp thecourt in what'circumstances-theypartedcompany. He has not given 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 appellants 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. lf';lthat be so, the prosecution has testablished the fact that on 5.3.1985 at 5 p.m. Vadivelu was still in the company of these appellants and, therefore, in the absence of any specific explanation from .?-.-• ;'''-tC~t'-~|l-'r'r'"t<'. tf~f~.' theappellants 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 ofVadivelu. At this point, it may be relevant to note that though no specific stand has been taken by the appellants as to their parting company with Vadivelu, in their statement under Section 313Cr.P.C., it is seen from the evidence of PWs.1 and 5 that A-1 told the said witnesses on the nightintervening between 5-3-1985 and 6-3-1985 that Vadivelu 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 tieard by PWs.5 and 14, clearly shows that the same is totally false and obviously wasan excuse made by the appellants to conceal the true facts and, therefore, "fhis 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 cbmpany of the accused and was never seen thereafter, it is obligatory on the accused tp explain the circumstances in which the'missihg: person and the 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 •'' establishedagainst the appellants." 17. In the present case, the appellants were seen along with the deceased whp^was.jn the.comp.any.crf.the. appellants - Anand Kumar @ Raja and Umashanker. The present appellants had taken the deceased with them from the house of the deceased. Therefore, in view of the above dictum, the appellants. were under obligation to explain why they took the deceased from the house of the deceased and whe'n thev left the ]• company of the deceased as also who has caused the injury to the deceased. However, the appellants did not offer any such explanation. 18. If the aforesaid circumstances i.e; i) the deceased was seen alive in the company of the appellants; ii) the appellants have taken the deceased by their motor cycle and iii) the dead body of the deceased has been recovered attheinstanceofappellantNo.li.e. AnandKumar@ Raja; iv) cause of deafh of Shakti Singh was Asphyxia as a result of strangulation, are considered together, then the on!y inference would be possible that )B&:::. ~.:-Y &- 10 •et: only the present appellantshave committed the culpable homicide amounting to murder of Shakti Singh and none other than the appellants have committed the aforesaid offence and the same is also sufficient to exclude the possibility of innocence ofthe appellants. 19. After appreciating the evidence availableon record, the learned Court below has rightly convicted and sentenced the appellants. The findings of learned Court below are purely based on clinching, cogent and reliable evidence available on record sustainable under law. 20. On close scrutiny of the evidence available on record, we do not find.any,illegaltty,jnthe,,cp,nvJ,c{io,^,Q.tthe.sppe)lants,,,. . ,, , 21. Consequently, the appeal being devoid of merit and substance is liable to be and is hereby dismissed. — T.P. Sfcarma Judge Sd/- N.K. Agrawal Judge