HiGKCOURT OFCHHATTISGARH. BILASPUR CORAM: Hon'bleShriRaieevGuDta.C.J. & Hon'bleSJirLSunilKymar Sinha, J, Criminal AppealNo. 1257 of 1993 Gudda alias Sanuallah @' Salim Khan & Another Vs. State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUST1CE RAJEEV GUPTA Cl \ / 'HII'li Sd/- ChiefJustice /" ^" Post for Judgment :/^/10/2010 Sd/- Sunii Kuniar Srnha Judge HIGH COURTOF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha, J. APPELLANTS RESPONDENT CriminaLAppealNo. 1257 of 1993 1 Gudda alias Sanuallah alias Salim Khan alias Munna, aged about 21 years, son of Abdul Gaffar, R/o Village Balgahna, District Bilaspur M.P., (Now Chhattisgarh) 2 Azam Hussain son of Nawejan, aged about 19 years, resident of Bishrampur.iDistrict Palangu (Bjhar) Versus State of Madhya Pradesh (Now State ofChhattisgarh) Through Police Station Gorella, District Bilaspur (Criminal Appeal under Section 374 12) of The Code of Criminal Procedure, 1973) Appearance: ^ Mr. Malay KumarBhaduri, Advocate for the appellants. Mr. Akhil Mishra, Dy. Govt. Advocatefor theState. JUDGMENT (/8.10.2010) Fpllpwing judgment of the Court was delivered by Sun i 1 Kumar Sinha. J. th ,(1). This appeal is directedagainst the judgment dated 16"' of December, 1993 passed in SessionsTrialNo; 305/91; by the Seventh Addittonal Sessions Judge, Bilaspur. 'i(li':il:'f s'l ll' .:i ^jJ^-'J^^fflJ^T^^'^fl^^^^^^^^^ Criminal Aweal No. 1257 of 1993 (2) By the impugned judgment, the appellants have been convicted u/s 302/34 IPC and sentenced to undergo imprisonment for life. >- i (3) The facts, briefly stated, are as under:- On 9.12.90, a dead body of unknown person was found in the outer area of village Jogisar. A merg intimation (Ex.- P/16) was lodged in thepolice station Gorella at about 17.30 hours. Receiving theintimation, the Investigating Qfficer reached to the place of occurrence and a dehatinalishi (Ex.- P/17) was recorded, based on which a First Information Report (Ex.-P/17-A) was also registered later on. The Investigating Officer gave notice (Ex.-P/1) to the Panchas and prepared inquest (Ex.-P/2) on the body of the deceased. The dead body of- the deceased was sent for post-mortem examination. The post-mortem examination was conducted by Dr.R.C. Mishra (PW-15). He noticed multiple injuries on the body ofilhe deceased and found that' there was a compound fracture of right parietal bone. He also found intra-dural haemorrhage. According.to the Autopsy Surgeon, the cause of death was intra-dural haemorrhage due to head injury and it was homicidal in natyre.Later on the body was identified to be thatof Mulayam Singh. IB further investigation it reveal that deceased-Mulayam Singh and the two appellants were residents of village Pourakar, P.S. Bijri, Sub-Police Station Ramnagar, Tehsil Kotma, District Shadol (M.P.). The » deceased was runnin^a betel-shop in Pourakar: Appellant- Gudda @ Sanuallah @ Salim Khan was a motor-mechanic. His work-shop was near the shop of the deceased.Appellant- Azam hlussain was servant/helper in the Work-shop of Sanuallah. The case of the prosecution is that Gudda @ Sanuallah used to take betel from the betel-shop of the y'. llt!-1i'li 1I|{::''-''^"-?!?f1I:'H^? ^1i^^^?s!^s5s^^i^^'^1^ ^- "J' ^ .<y Criminal Auoeal No. 1257 of 1993 1 deceased. Some amount was to be paid by him to the deceased. Few days prior to the incident, there was a quarrel between them. The allegations are that on 4.12.90, the appellants arranged a bullet-motorcycle and took the deceasedon their motorcycle. They went to village Jogisar. Firstly they went to the house of Harnand Sngh (PW-18). They asked him for arranging chicken for them. Harnad said that he is unable to arrange chickeh. Thereafter they went to the house of Ramkaran(PW-14), there also they made request to arrange chicken. ^Ramkaran said that chicken may be arranged from the village. Thereafter they went to the house of Rehman (PW-1) and purchased chicken. The chicken was brought in the house of Ramkaran (PW-14). It was prepared there. After taking the meals in the house of Ramkaran, the appellants/ and the 'deceased left his house in the night and thereafter the deceased wasnot seen alive and his dead body was found in theouter area ofthe village on 9.12.90. The case of the prosecution was mainly based on the circumstantial evidence and the main circumstancewas that of last seen. The learned Sessions Judge relied on the circumstance of last seen and held that the deceased was seen in the companyofthe appellantsibyHamadSingh(PW-18),Rehman --(PW-1) and lastly by Ramkaran (PW-14), therefore, the appellants were liable for punishment for committing murder of deceased- Mulayam Singh. J^l (4), Mr. Malay Kumar •Bhaduri, learned counsel appearing on behalf of the appellants, argued that the evidence of last seen ^together was not at all established as none of theabove witnesses •-^eposed that the person who was accompanying the appellants at |!i]]']lit: [iiF'^'wafiBw'inmBiBii'swi'N'agifi'BB'ff! Cruninal Aroeal No. 1257 of 1993 their places was deceased- Mulayam Singh. He also argued that according to the prosecution, the deceased was last seen alive on 4.12.90, whereas, the dead body of the deceased was found on 9.12.90, therefore, there 1s long time gap between these two incidents and even if it 1s held that the deceased was in the company of the appellants on 4.12.90, a possibility of any other person coming in between cannot be fully ruled out. (5) On the> other hand, Mr. Akhil Mjshra, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments andsupported the judgment passed by the Sessions Court. (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) In a case based on circumstantial evidence, the circumstances '*. from which the conclusion of guilt is to be drawn should be fully established. The facts so establjshed shauld be consistent only with '•^ the guilt of the accused and they should not be explainable on any account. Notoniy this, circumstance so established, should be of /• eonclusive'n6ture and tendency so as to exclude every possible 'ir . J^l hypothesis except the one to be proved. The chainof circumstances must be complete as not to leave any reasonable ground for the conclusion consistent with the innocence ofthe accused and must sh0v6rthat in all human probability the act must have been done by .lf Cnmmal Apceal No. 1257 of 1993 the accused. About the last seen theory, the Supreme Court held that the last seen theory comes into play where the time gap between the point of time when the accused and 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 crime becomes impossibl.e. It would be difficult 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. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of a guilt in those cases. (8) Now we shall examine the evidence of last seen in light of the above principles. '-/•••r". •• (9) Harnad Singh (PW-18)'deposed that on the fateful day the appellants visited his house and asked him for arrangiag chicken for them. When he denied, they ^fent on their motoreycle. They were three persons. He had identified appellant- Azam Hussain in test identification'" parade (T.I.P.) arranged in Tehsil Office. The document relating to T.I.P>4.Ex.-P/9) bears his signature. After going thrpugh his entire evidence, we find that he does not depose that the 3 man.who was accompanyihg the appellarits, was the deceased, Ramkaran (PW-14) also deposed that the appellants ^: • • • ! • ''^.. % fj j a ^y^ CrimmalADpeaINo. 1257 of 1993 along with another person came to his house on a motorcycle. They asked him for arranging chicken. He advised that the chicken may be arranged from the village. Thereafter they arranged chicken from the village which was prepared in his house. They took their meals and left his house on the same night. He also did not depose that the 3 person who was accompanying the; appellants was the deceased. Rehman (PW-1) is the person from whose house the chicken was purchased. Though hestated that the appellants were four persons but he also did not depose that the deceased was one ofthem. After going thrbugh the entire evidence relating to last seen together, we find that it was not established by the prosecution that the deceased was seen in the company of the appellants in the evening/night of 4.12.90. lnfact,theidentify of the deceased as a person accompanying the appellantswas not established by the witnesses of the circumstance of last seen together. <10) So faras motive ofthecrime;isconcemed,thatalsodoes not appear to be reasonabte or aceeptable. The case of the prosecution is that since some outstanding amount was pending to be paid by appellant- Gudcla^@ Sanuallah, therefore, tlieappellants planned to / commit mtirderof the deceased in the above manner. tt does not .l' • - '•—- appear reasonable thatonly for such petty reason, the appellants *ou1d have committed murder of the deceased by taking him to a distanGe of aboutQO Kms as alieged by the prbsecution. Tt also cp.mes in the prosecution'case that the deceased used to sell loose .^' Criminal Appeal No. 1257 of 1993 petrol in his betel-shop and he used to bring petrol from nearby petrol pump.It comes in the evidence of Bhanu Prakash Shrivastava (PW-7) that Salim Khan had said the deceased to meet on the chowk (central point) for going to purchase the petrol. (11) Apart from the above, even if it is held that the deceased was seen in the company of the appellants in the evening of 4.12.90 by these witnesses in village Jogisar, ,by thjs .alone the appellants cannot be hold responsible for the death of the deceased when the deceased was found dead on 9.12.90. We may note from the contents of the merg intimation (Ex.-P/16) that the dead body was found just by theside of the village road. That means it was not in hidden condition. Therefore, it indicates that the it was a recent murder. Looking to the long time gap of about 5 days between the point of time when the appellants and the deceased were allegedly seen last alive and the deceased was found dead, a possibility of any person other than the appellants being the author of crime cannot be taken as impossiblp. The Supreme Court said that in absence of any other positive evidence to conclude that the appellants and the deceased were last seen together it would be ^ ./ . . . - .. ... . hazardous focome to conclusion ofthe guilt in such eases. ,(12) We find that there is no other circumstantial evidence against the appellant excepttheabove. A memorandum statement (Ex.-P/7) of sippellant-Azam Hussain u/s 27 of the Evidence Act was recorded .'<- !lll'i!! l'nl "'w^'ii'Tnpg'waii'wi" roa^^^^SS^^^t ^?i@IS^tT^T" CnmmalAoDealNo. 1257 of 1993 on 19.4.91, and one hook of the full-pant and buttons was seized fromthe badi of the house of appellant- Gudda @ Sanuallah saying that they had burnt doths of the deceased there, but that does not connect the appellants with the above crime.Why they will bring the cloths of the deceased from 90 Kms and burn it in their house. Moreover, the hook of the full-pant and buttons, like above, are very common articles which never connect the appellant with the above incident. The learned Sessions Judge also observed that in the aforesaid memorandum statement of Azam Hussaih, he also disclosed about the weapon of offence i.e. pharsa but no such weapon was seized by the police. (13) For the.foregoing reasons,,,we. do BOt find.any. incriminating evidence against theappellants on which their conviction u/s 302/34 IPCcan be sustained. We are ofthe yiew that the learned Sessions Judge erred in law in resting the convjction Qf.theappellants on the above set of circumstantial evrdence. (14) In the result, the appeal is allowed. The conviction and sentence awarded tp the appellants, u/s 302/34 IRC are set-aside. The appellants are acquitted of the charges framed against them. / Tl-re appellants are on l?ail. Their bail bondsare cancelled and sureties'stand dischargsd. Sd/- ChiefJustice // Sd/- Sunil Kumar Sinha Judge \<attij 'niiffl1