HIGH COURT OF CHljlA'T_TISGARH AT BILASPUR i 1 (DIVISIon Bench) A Coram : Hon’ble Shri T.P. Sharma & Hon’ble Shri Rangnath Chandrakar, JJ, Criminal Appeal No. 494 of 2005 Appellants Devnarayan @ Devlal Vs. Respondent Stéte of Chhattisgarh through Police Station Baikunthpur, Dist. Koriya. £ JUDGMENT FOR CONSIDERATION Sdl- KN.Chandrakar Judge ’ "‘ (am/2011 Hon’ble Shri T.P. Sharma, J. i Sd/— T. P. Sharma l 6' W i Judge? 76/9/2011 1‘ POST FOR JUDGMENT ON m .9-2011 Sdl- T. P. Sharma ll Judge (g I9/2o11 Lqfi$@ HIGH COURT OF CHHATTISGARH AT BILASPUR (Division Bench) Coram: Hon’ble Shri T.P. Sharma & Hon’ble Shri R.N. Chandrakar, JJ. Criminal Appeal No. 494 of 2005 ppellant Devnarayan @ Devlal aged 41 (in jail) years s/o. ltwarsai, r/o. village Ketka, Police Station Machadoli at present residing in village Badesalhi, Police Station Khadgawa, Baikuntpur, Dist. Koriya. Vs. Respondent State of Chhattisgarh through Police Station: Baikuntpur, Dist. Koriyha. (CG). (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Present: ll Mr. Abhay Tiwari, counsel for the appeant. Mr. J.A. Lohani, Panel Lawyer forthe State. JUDGMENT (Delivered on I 6 —9—2011) Per Rangnath Chandrakar, J. 1. This criminal appeal under Section 374 (2) of the Code of Criminal Procedure is directed against the judgment of conviction and order of sentence dated 12-5—2005 passed in Sessions Trial No.449 of 2004, whereby learned Additional Sessions Judge, Baikunthpur, District Koriya, after holding the appellant guilty for committing \ wwm.muw«tamju - w ’> ' ,. t A « @ murder of his wife ‘Dhanmat Bai and conceaiing the evidence of criminal case, convicted him under Sections 302 and 201 of the IPC and sentenced him to undergo imprisonment for iife and to pay fine of Rs.1000/-‘ in default of payment of fine to further undergo RI for six months and RI for one year respectiveiy. All the sentences are directed to run concurrentiy. Prosecution case, in short, is that deceased Dhantmat Bai was the v wife of the appellant. She was living with her husband — appellant im village Govindpur in the house of Somarsai (PW/9). Deceased Dhanmat Bai was cousin of Somarsai (PW/9). Rameshwar (PW?10) father‘ of deceased was also residing in village Govindpur separately. On 23—11-2003 accused/appellant and his wife Dhanmat Bai went to Baikuntpur market at 8.00 a.m, thereafter they did not return to their house from the market. On 29-1 1-2003 Rajaram (PW/7) saw the dead body of one woman in his field near “Gadaguda nala" and informed the villagers about the incident. Thereafter, Heera Singh (PW/1) and Narayan Singh (PW/8) went to the spot and also saw the dead body. Narayan Singh (PW/8) went to Police Station Baikunthpur and lodged merg intimation vide EXP/12 which was recorded by Lav Kumar Pandey (PW/17) on 29-11-2003 as crime No. 67/2003. After summoning witnesses vide EXP/3, inquest over the dead body of the deceased was prepared vide Ex.P/4. Requisition for conducting autopsy of the dead body was sent to Community Health Centre, Baikunthpur, fromwhere Doctor D.K. Chikenjuri (PW/14) along with Doctor Neelam Tirkey came and conducted @ autopsy on the spot. They gave their report vide Ex.P/17 and found the dead body in following condition. i) Dead body was in State of decomposition Iying supination oVer ground; ii) No .ciothings present, head unvisible due to turndown beneath the body on removal skeletonised and no organ remained, lower jam; completeiy separated. Loss of teeth except molar iii) Half of chest ribs lost, heart, lungs, liver and spleen lost. Breast and perineal region blackish colour and loss of skin and muscle over lower limbs and upper limbs. v)& Loss“ of greater toe intact at right side at metatarsal broken, and left side greater toe intact remaining lost. Maggot rolling over body, except linear, piece of petticoat torn and wrapped around loin. Internal : i) Bodyskeletonised at chest, head, neck. Skull bone fully skeletonised, no brain matter separated; lower jaw separated. ii) Clevical bone badly intact and adhered. iii) Clavical anterior ribs separated and broken. iv) Upper limbs and lower limbs. Loss of muscle, Bangles over upper limb and tattoo present over lower limb and loss of tarsal bone. Blackish discolouration over breast perineum petticoat tied around loin. After washing reddish spin & material present; vi) Perineum region, blakish and maggots present. The Doctor opined that cause of death was due to cardio respiratory arrest and homicidal in nature. @ 4. Spot maps were prepared vide Ex.P/9 & P/10, half burnt blouse and saree of deceased were seized from the spot vide EX.P/1 & P/2. On the basis of merg intimation vide Ex.P/12, first information report was lodged by Investigating Officer I.Tirkey (PW/6) vide Ex.P/12. During the course of investigation, accused/appeilant was arrested on 16-8—2004 vide EXP/20 and he made a discioser statement of 30 grams of kerosene oil in a plastic bottle vide v Ex.P/14 and the same was seized at the instance of the appeilant videt‘Ex.P/8. Clothes of the appellant were seized vide Ex.P/15. Seized articles were sent for chemical examination to FSL, Raipur vide EXP/18 but report thereof was not received. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Baikunthpur, who in turn committed the case to the Court of Sessions Judge Baikunthpur and the same was received on transfer by learned Additional Sessions Judge, Baikunthpur, who framed charges under Sections 302 & 201 of the IPC against the appellant who abjured the guilt. In order to prove the guilt of the appellant, prosecution examined as many as seventeen witnesses. Accused person was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and pleaded innocence and false implication. However, he did not examine any witness in his defence. @ After affording an opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appeiiant as aforementioned. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment. Mr. Abhay Tiwari, learned counsel appearing for the appellant vehemently argued that the case is based on circumstantial v evidence of last seen together. Ramkushal (PW/2) and Hari Om (PW74) are the witnesses of the fact but Ramkushal (PW/2) turned hostile and had not supported the case of prosecution. Learned 4 counsel further‘submits that merg intimation (EXP/12) was lodged by Narayan Singh (PW/8) but Lav Kumar Pandey (PW/17), the writer of merg intimation stated that name of the deceased was mentioned as unknown person and he did not know as to how the name of Dhanmat Bai was added later on in EXP/12. Thus, the merg intimation becomes doubtful. Learned counsel for the appellant further submits that the prosecution has failed to establish the factum of last seen theory by cogent evidence. The next submission of learned counsel for the appellant is that dead body of the deceased was also not properly identined by the relatives and there was no missing repot in the case. Therefore, the trial Court was not justified in convicting and sentencing the appellant only on the basis of weak type of circumstantial evidence like last seen theory. The evidence adduced on behalf of the prosecution is not sufficient for drawing inference that the present appellant has caused homicidal death of deceased Dhanmat Bai. i 6 @ 10. Per contra Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State supporting the judgment impugned submitted that conviction of the appeilants is based on the evidenoe of Ramkushal (PW/2), Hari Om (PW/4), & Narayan Singh (PW/8). After appreciating the evidence available on record, the court below has rightly convicted and sentenced the appellant as aforementioned. 11. In order to appreciate the arguments advanced by learned counsel fonthe parties, we have examined the evidence adduced on behalf of the prosecution. 12. The present ca‘se rests upon the identification of the dead body, last seen theory and autopsy report. So far as the identification of the dead body is concerned, it was said to be identified by PW/9 ; Somarsai, cousin of the deceased, PW/10 — Rameshwar, father of the deceased and PW/11 Mangli Bai, mother of the deceased. PW/9 Somarsai stated in his deposition that he, being informed by Dheer Singh and Pancham Bai he went to “Gadaguda” (Gadabuda) forest to see the dead body and identified the same to be of Dhanmat Bai on the basis of her wearing apparels. In his cross-examination he has specifically admitted that one day before the identification of the dead body, Rameshwar (PW/10) and Mangli Bai (PW/11) had gone to the forest to see the dead body but they could not identify as the dead body was in the shape of u skeleton and there was no flesh. He further admitted that the clothes found over the dead body were red coloured and usually worn by many persons in the village. He had not seen the v \ ,,\ @ deceased Dhanmat Bai going to market with the appellant and the dead body was recovered after eight days since she Ieft the house with the appeiiant. Thus, the testimony of this witness regarding the identification of the dead body is doubtfui as he identified the dead body only on the basis of wearing appareis of the deceased which is generaiiy used by common peopie. PW/1O Rameshwar, father of the deceased deposed that her s daughter (deceased) lived with the appellant in the house of Somarsai (PW/9). Prior to eight days of the identification he was informed by Somarsai (PW/9) that his daughter had gone to market with the appellant and thereafter the dead body of his daughter was found in Gadaguda forest. He went to see the dead body and found the same in almost nude condition. There were some clothes over the waist. He identified he dead body on the basis of t wearin appareis generally wor by other women in the village. In g n his cross-examination he admitted the fac that hair over the head, t ears and chin were mssing from the dead ody and there was i b flesh at some places. He spifically admitted that the dead body ' ec was not identifiable. He further admittd that on the date on which e er dughter left the house with the appellant, neither he met thm h a e nor he saw that what was worn by her. He admitted the suggestion that one day before the identificaion when they went to see the t dead body they could not identify the same. This witness himself stated that h had not gone on that day but hi wife (Mangli Bai— e s PW/11) and Somar Sai (PW/9) had gone to see the dead body who could not intify. de -—hk‘ 14. The other witness of the identification is Mangli Bai (PW/11), the mother of deceased who also stated to identify the dead body on the basis of wearing apparels and “Godna"(Tattoo) whereas in her cross-examination she admitted that the wearing apparels found over the dead body were commonly worn by many women of the village and the ditto Godna mark was common over the bodies of the women belonging to his caste. That apart, she admitted that one day prior to the identification when they had gone to see the de‘aa body they could not identify the same. She had not seen her daughter going to market with the appellant and she did not have s any talk with .°Somarsai (PW/9) for this period of eight days regarding whereabouts of her daughter and the appellant. She also admitted that the dead body was nothing but skeleton and there t was flesh at some places. On a minute scrutiny of the testimonies of the aforesaid witnesses, it reveals that the dead body was identified to be of Dhanmat Bai only on the basis of her wearing apparels which are commonly worn by other women of the village and on the basis of Tattoo (Godna) that too is common to the women of the caste of deceased. Admittedly, the dead body was nothing but skeleton which was not identifiable. Moreover, there was no missing report about the deceased in which description about the age, colour, height, physique and wearing apparels are given which would have been helpful for identification after recovery of the dead body. It is pertinent to mention here that none of the aforesaid witnesses had seen the deceased going with the appellant to the market, thus, ¥\ \ their identification through the wearing appareis is doubtful and becomes irrelevant. Corroborating te versis of the aforesaid h on witnesses, P Narayan Singh, who lodged the merg intimaion W/8 t (EXP/12) also sated that th dead body was nothing but skeleton. t e ln view of the above, it cannot be held that the dead body was properly identified and was of the deceased. 1 6. The other circumstance is the theory of last seen together. In this regard, Ramkushal (PW/2) and Hari Om (PW/4) were examined. PW2 Ramkushal turned hotile and put to leading questions / s wherein he admitted that the dead body of wife of appellant was, recoV‘ered afte‘r one week of the day of Baikunthpur market when they had come to his shop. Except this, he denied almost all the suggestions given by the prosecution. Finally in his cross- examination, para 7, even he denied to identify the appellant. As per evidence of PW/4 Hari Om, prior to the incident, while he was grazing his cattle, he had seen the appellant and his wife returning from Baikunthpur market in the evening at the time of sunset from the distance of 100 — 150 ft., and after 15 days of the incident he came to know that a dead body of a woman was found in Gadaguda nala. In his cross-examination he admitted that he did not have any talk with the appellant. He further admitted that he did not identify the woman accompanied to the appellant and he stated the woman to be the wife of appellant by guessing. The woman was wearing sari and blouse but he could not mention her body and physique. He could not describe the clothes worn by the appellant on that day. The aforesaid witnesses are father and son i . “Awe-1 I f : »».nwwwmmad .,.. 7,. ,7 A_a. .. ....,,,, u 10 @ v and they have not corroborated each other. PW/2 Ramkushal has ~, clearly denied to identify the appeilant and his wife as also to give statement of Ex.P/6 marked from “A to A" whereas PW/4 Hari’Om, son of PW/2 Ramkushal though admitted to see the appellant and deceased from the distance of 100 — 150 ft., created doubt on identitication stating that he did not identify the woman accompanied to the appellant and he stated the woman to be the wife of appellant by guessing. Thus, from the above circumstance, there is no credible and cogent evidence regarding the theory of last seen together, so it looses its credibility and significance. Apart from§this, there” is eight days time gap between the date of recovery of body and the appellant was last seen together with the deceased. 17. In order to establish the offence of murder against the accused based on circumstantial evidence of last seen, the prosecution is obliged to prove that the time gap between the last seen and the murder is so proximate and so close that there should not be any possibility of drawing any inference of the innocence of the accused ’ and there should be no possibility of meeting of anyone else to the deceased in between. The last seen circumstance is a weak type of evidence, requires corroboration from some other independent evidence about the guilt of the accused. There is difference between “seen together” and last seen together", therefore, the prosecution is required to prove by a cogent and firm evidence that the gap between the death of deceased and the fact of last seen had proximate and close nexus. Hon’ble the Supreme Court in 11 the matter of Bodhraj @ Bodha and others vs. State of Jammu and Kashmir, reported in 2002 (8) SCC 45, held that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive together and when the deceased is found dead is so small, that possibility of any person other than the accused being the author of crime becomes impossible. Hon’ble the Supreme Court further held that it would be hazardous to come to a conclusion of guilt in oases where there is no other positive evidence to conclude that t the accused‘and the deceased were last seen together. Similarly, Hon;ble the supreme Court in the matter of‘Subhash Chand vs. State of Rajasthan, reported in 2002 (1) SCC 702 observed that last seen together must be near about the date and time of the .. incident. Merely on the basis of last seen, the accused cannot be held guilty. 18. PW/8 Narayan Singh has deposed that on being informed by Dheer Singh that dead body of a woman was lying in the field of Rajaram (PW/7), he went to the spot and seeing the dead body of a woman went to Police Station Baikunthpur and lodged merg intimation vide EXP/12. The dead body was not in a position to bring for postmortem, therefore, police took the Doctors to the spot on the next day. The dead body was in the shape of skeleton and flesh was not appearing. He did not disclose the name of deceased in his deposition but on perusal, name of deceased was found in EXP/12 whereas Lav Kumar Pandey (PW/17), writer of the merg intimation (EXP/12) corroborating the version of Narayan Singh ,, q\_\r \\ 12 I K f @ stated that on 29-11-2003 merg intimation (EXP/12) was lodged by Narayan Singh (PW/.8) and in his cross examination he admitted that the merg was recorded in the name of unknown person and name of deceased was not mentioned in it. He further stated that in merg intimation (Ex.P/12) in “C to C", the name of Dhanmat Bai was added Iater on which was not written by him. He was unable to say that by whom the name of Dhanmat Bai was added in merg intimation (EXP/12). Thus, on analysis of the evidence of the aforesaid witnesses, it is clear that neither the name of the deceased was disclosed by Narayan Singh (PW/8). while iodging th‘e merg intimation nor it was written by Lav Kumar Pandey (PW/17) but the inquest (EX.P/4) and autopsy report prepared on the next day i.e., 30—11-2003 show the name of the deceased Dhanmati Bai which was not explained by the prosecution as to how the name of deceased found place in inquest (Ex.P/4) as well as in merg intimation (Ex.P/’l2), specifically in view of the fact that the dead body was nothing but skeleton and it was not identifiable as discussed above. 19. So far as the memorandum of appellant and seizure of 3O grams of kerosene oil in a plastic bottle Ex.P/8 is concerned, the memorandum was recorded on 16-8-2004 after about nine months from the open field and the witnesses namely Bhuvanswar Pandey (PW/12) and Siyamber (PW/13) of memorandum and seizure Ututned hostile and did not support the case of prosecution. That apart, it is highly improbable that a bottle of alleged kerosene was found protected and preserved in the open place for such a long u 13 period of about nine months. it is pertinent to mention here that the seizure of kerosene oil was tried to bring into picture from the evidence of PW/2 Ramkushai and PW/4 Hari Om. PW/2 Ramkusai turned hostile and PW/4 Hari Om admitted the fact that h he had not sen the articles carrying by the appellant in his bag. e Thus, the seizure of kerosene oil from possession of appellant also goes in vain and does ot appear trustworthy. n v Th other circumstance which we find fit to discuss in he case is e t thee motive. this regard, the evidence of PW/11 Mangli Bai, mother of deceas is noticeable who clearly admitted that there wasglove mariage between the appellant and deceased and they were leading happy and peaceful mared life. From the evidence ri of PW/9 Somarsai and PW/10 Rameshwar, it is clear that the ppellant was having houses in village Badesalh, Ketma and a i Korba. He used to visithis houses ataforementioned laces with p the deceased Thus, oy on the basis of absconding from the . nl village where the inident took place the appellant cat be held c nno guilty for commission of murder of his wife without any motive. On re-appraisal of the evidence t is found tat the prosecuti faid to establish that th alleged dead body was of Dhanmat Bai le e and thus the autopsy repo also becomes irrelevant as no FSL rt report about the viscera or the other seized articles was obtained in the case. The prosecution als faile to establsh th theory of last o d i e seen together by cogent an firm evidence as discussed above. d On a close scrutiny of the evidence available on reord and . c considering al the apects of e matter, we find that the trial Court l s th In ed r i h on 14 2 {27 hile convicting and sentecing the appellt has not considered w n an all the materiai aspects of the matter and thereby committed illegality. The evidence adduced on behalf of the prosecution i not s sufficient for drawing a definite conclusion that the present appellt has committed murder of his wife. an Accordingly, the ppeal is aowed. Jdment of conviction and a ll ug sentence passed by the court below is set aside and th appellant e is acquitted of both the harges. Appelant is in custody and he be c l eleased forthwith, if not rquired in any other case. Sdf- T. P. Sha’rma Judge ,__ WW Sdl- R.N.Crakar \ 7 r e £ l i _ - hand c l