HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shn Raleev Gugta, C J & Hon’ble Shrl Suml Kumar Smha, J. Criminal Aggem No. 465 of 2008 Amrit Vs. State of Ghh‘attisgarh JUDGMENT -F9{£ns,id,e/raticm/ * % ‘ Swa §am§§ Kunmm ‘s‘im Em‘ige HON BLE SHRI JUSTICE RAJEEV GUPTA J sdl- " Chlef Jusuce ’ C , r V ,,, A Post for_ Judgment :23/1 0/2008 ....‘...‘_/l-/—‘ HJ’ SdL SUNIL KUMAR SINaA Judge > ' ‘ @ HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Raieev Gugta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. Crimirial Aggeal No. 465 of 2008 ’ Amrit S/o Ram Sunder Loniya, Aged about 4O years, R/o Village Barpali, P.S. Koni, Distt, Bilaspur (C.G.) APPELLANT Versus Smt. Usha Chandrakar, Advocate for the appeHant. Mr. Ashish Shukla, Govt. Advocate, for the State. JUDGMENT (23.10.2008) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Appellant— Amrit stands convicted under Section 302 IPC by the Fourth Additional Sessions Judge, Bilaspur in Sessions Trial No. 33/99, and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default of payment of fine to further undergo R.l. for 1 year. (2) The case of the prosecution is that about 1 month prior to the date of incident i.e. 9.11.98, deceased- Jaikunwar Bai had lodged a report (Ex.—PI16) against the appellant in police station Koni, on which, an offence u/ss 354 & 506 Part-ll IPC was registered and a charge— , sheet was filed. The allegation are that on 9.11.98 at about 12.00 - 1.00 p.m., the appellant murdered the deceased in a field,where the deceasedvwas grazing her cattle,by causing injuries by a tangia. La U. Thereafter, he made an extra judicial confessiOn’before Ashok Loniya ' (PW-4), whotold about the extra judiciai confession to the brother of the deceased Sukhiram (PW-1). Sukhiram and his brother Amar Singh (PW-6) went to the scene of occurrence, saw the dead body and lodged the First Information Report (Ex.~P/1) in the police station. The investigating Officer reached to the scene of occurrence, gave notice (Ex.—P/2) to the Panchas and prepared inquest (Ex.-P/3) on the body of the deceased. He seized blood stained soil and plain soil from the place of occurrence vide Ex.—P/10. The dead body was sent for its postmortem to Sardar Patel Hospital, Bilaspur, where the postmortem examination was conducted by Dr. Vinay Gupta (PW—7), who prepared his report Ex.-P/12. The Autopsy Surgeon found that there were 5 incised wounds on the skull of the deceased and the brain matter has also come 'out. All the injuries were antemortem and were caused by sharp and heavy object. He opined that the cause of death was hemorrhage and shock on account of multiple head injuries sustained by the deceased and it was homicidal in nature. (3) (4) ln further investigation, after taking the appellant into custody, his memorandum (Ex.-P/6) was recorded regarding discovery of the tangia, in pursuance of which, blood stained tangia was seized Under Ex.-P/7 by the Investigating Officer from the place indicated by the appellant near the bushes in the village. He also seized blood stained clothes (shirt and Ioongl) of the appellant under Ex.-P/5. The seized articles were sent for their chemical examination to Forensic Science Laboratory, Sagar, from where a report (Ex.-P/17) was received. According to the F.S.L. report, blood stains were found on the stained soil, tangia and clothes of the appellant & the deceased. For determination of the origin and the blood group of the blood found on the seized articles, they were sent for their serologist examination to laboratory at Calcutta vide Ex.-P/18 but no report could be received. After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate, First Class, Bilaspur, who in tum committed the matter to the Court of Sessions, from where it was received on transfer by the Fourth Additional Sessions Judge, Bilaspur, (5) who conducted the trial and convicted and sentenced the appellant as aforementioned. (6) dmittedly, there are no eye witnesses in this case and the conviction of the appellant is based upon the circumstantial evidence. (7) Following are the circumstances, on which, the trial Court has based the conviction: (A) Extra judicial confession made by the appellant to Ashok Loniya (PW-4); (B) The appellant and the deceased were last seen together in the filed by Chetram (PW-5), where the deceased was grazing her cattle; (C) The appellant himself surrendered before the police station in blood stained clothes after the incident & (Dv Human blood was found on the clothes of the appellant and also on the tangia seized at the instance of the appellant. (8) Smt. Usha Chandrakar, learned counsel for the appellant, has not disputed the homicidal death of the deceased. Moreover, it comes in the evidence of the Autopsy Surgeon, Vinay Gupta’ (PW-7), that the deceased received as many as 5 external injuries on her skull and the injuries were incised wounds and were caused by a sharp edged weapon. Even the brain matter has come out. The Autopsy Surgeon has opined in. clear words that the death was caused due to hemorrhage and shock as a result of multiple head injuries and it was homicidal in nature. Therefore, it is established that the death of the deceased was homicidal in nature and there is no infirmity in the judgment of the trial Court to this extent. (9) Smt. Usha Chandrakar, then, vehemently argued that none of the circumstances, setforth by the prosecution, have been proved in this case. (10) On the other hand, Mr. Ashish Shukla, learned Govt. Advocate, for the State opposed these arguments and supported the judgment TM passed by the trial Court. Criminal Appeal No. 465 of 2008 A ) 4 , Criminal Appeal No. 465 of 2008 (11) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (12) In the matter of Dhananioy Chhatteljee —Vs- State of W._§, £1994) 2 SCC 22, the Apex Court held that “In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent 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.” (13) In Bodh Rai alias Bodha and others —vs- State of Jammu and Kashmir, AIR 2002 SC 3164, the Apex Court laid down that there is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: 1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may’ be established; 2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3) the circumstances should be of a conclusive nature and tendency; 4) they should exclude every possible hypothesis except the one to be proved; and 5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. w Criminal Appeal No. 465 of 2008 About the Iast seen theory, the Apex 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 impossible. it would be difficult in some cases to positively establish that the deceased was last seen with the accused whenthere is a long gap and possibility of other persons coming in between exists. ln 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 conclul of a guilt in those cases. (14) Almost similar view was ag‘ain taken by the Apex Court in the matter of State. of Goa —vs- Sanigy Thakran & anr., (2007 (4) SBR 321. While passing the said judgment, the Apex Court has also referred to the decision of Bodh Raj case supra). (15) Now we shall examine each circumstance individually, held to be proved by the trial Court: First Circumstance: (A) The first circumstance i.e. extra judicial confession has been held to be proved by the trial Court. The case of the prosecution is that just after commission of murder of the deceased, when the appellant was going to the police station Koni, he met Ashok Loniya (P' the way and made an extra judicial confession to him. PW—4 deposed that at about 1.30 — 2.00 p.m., when he was near the brick-kiln of Motumal, he saw that the appellant is coming running from the village side. He asked to him that where he is going ? The appellant stated that he is going to Koni police station and he also added the following words‘waota‘rgsmwaswms,asmmmsiitaattém".t He further deposed that thereafter he went to the brothers of the deceased-Jaikunwar Bai, and asked them to nnd out the whereabouts of their sister because he was knowing that Jaikunwar Bai had earlier I made a report against the appellant and the appellant was in inimical relations with her. On this information, brothers of Jaikunwar Bai went 5 - ( I‘ Criminal Appeal No. 465‘of 2008 in search of their sister. After half an hour, the viHagers came to know that deceased Jaikunwar Bai has been murdered and her dead body is lying in the held of father of this witness namely— Chandrika. In the cross examination, in Para-8, this witness has categorically admitted that the appellant had only said that “Eh g? W 2H § W W i Giff 313i W GIT T51 i and he was running with tangia. So far as the law on the point of extra judicial confession is concerned, it is well settled that if the evidence to this effect is given by a truthful witness who appears to be unbiased, not even remotely inimical to accused and in respect of whom nothing is brought LA. .' which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, words spoken are clear, and unmistakably that the accused is the offender and nothing is omitted by the witness which may militate against it, after subjecting the evidence to rigorous test on the touchstone of credibility, if it passed the test, it can be accepted and can be the basis for conviction. In appreciation of evidence of this witness, we find that the words spoken to this witness are not clear. Even if we take his entire {é evidence as it is, it does not appear that the appellant had made an ‘ extra judicial confession to this witness as the appellant had not said that he has killed the deceased or even he has killed somebody or in fact, what was done by him. But he simply said that what he had to do, he had done it. That is to say that he never made confession incl, M j _ words before this witness that he has committed murder of the deceased. In our considered opinion, the alleged statement given by the appellant to this witness, on its face value, does not fulfill the ‘requirement of extra judicial confession and the trial Court erred in law in holding that the appellant had made an extra judicial confession before this witness and treating it as an incriminating circumstance against the appellant. Second Circumstance: (B) The second circumstance, relied on by the trial Court, is the cu f ircmstance o last seen together. The witness of last seen is‘ Chetram (PW-5). Chetram depose tha 10 -11 boys were playing d t Criminal Appeal No. 465 of 2008 cricket in the village. About 12.00 — 12.30 p.m., he saw that at a distance of about 1‘00 steps from them, the deceased was grazing her she-goats and the appellant was cutting bushes by tangia near the piace where they were playing. We ‘fail to understand that how that would be a circurnstance of last seen together. lf We rely on the testimony of this witness, it only establishes that he had seen the appellant and the deceased in the sarne locality of the village at day time about 12.00 — 12.30 p.m. and nothing more. It does not come in his evidence that the deceased was in the company of the appellant and she was together with the appellant If two persons are doing tw work at 2 different places In the same locality, but at a reasonable distance from each other even by a common sense It cannot be said that they were seen together. Therefore, this would not constitute a circumstance of last seen together as required in the realm of criminal law and the trial Court erred in law in holding it to be a circumstance of last seen together and taking it against the appellant. Third Circumstance: (C) I The third circumstance is that the appellant himself surrendered in the police stations in blood stained cloths. ln this regard, Investigating Officer, ASL, L.P. Dwivedi (PW—9) deposed. that on 9.11.98, the appellant came to the police station with blood stained cloths and surrendered himself. He deposed vide Para-5 that jut 10 minutes of reaching of the appellant to thevpolice station, Sukhiram (PW-1) also reached to the police station and lodged the First information Report (Ex.-P/1). The prosecution has not tiled any document to prove the fact that the appellant had surrendered in the police station at a particular time. If we look into the seizure memo Ex.— P/5 which is seizure of the cloths which the appellant was wearing at the time of surrender the time mentioned therein Is 6 45 p m LikeWIse the time mentioned in the seizure of tang/a (Ex P/7) in pursuance of the memorandum of the appellant is 6 30 p m The memorandum of the appellant (Ex.-P/6) does not bear the time of its recording. AII this create a doubt to believe that the appellant had himself surrendered - w r r_}/,xbefore the police 10 minutes prior to the lodging of the First Information 7 , Report, hh was lodged at 3.30 p.m. Had the appellant gone to th poli station prior t Iodging of the First Informatin Report in blood stained cloths, the cloths would have been eized at oe and he woul have been taken ito custody imediately because at least after 1O minutes of his‘aiieged surrender efore the police, the entire story was made ciear to the police by P-1, Sukhiram. The arrest memo (Ex.-/8) of the appeilant would show tha was arrested at 6.00 p.m. on the same day. Had the appellant, in fact, one to the police station, his surrender must have been recorded in the concerned Ronamcha of the police, but, the ame was not done as no such document has been tiled before the Court. Another fact which is appealing to us is that when a person will go to the police to uenr in blood stained cloths after committing murder, why he will firstly hide the weapon at a particular place and thereafter he will g to the police station ? If an accused makes his mind to immediately surrender before the police after commission of the offence, even in lood stained cloths, as a normal uman conduct, he will not choose to hide the apon fitly, and then to go to the police station and then after surrnder, in a reverse action, he will give discovery memo to the police and then will get the weapon recovered at his instance. This would not be a normal human conduct and this circumstance, setforth by the prosecution, also appears to be doubtful. Fourth Circumstance: (D) The fourth circumstance relied on by the trial Court is presence of human blood on the cloths and tangia seized at the instance of the appellant. At the very outset, we may note that the human blood was never found on the cloths or the weapon of offence. Learned trial Court has discussed the said circumstance in Para-26 of the impugned judgment. It has held that on the basis of F.S.L. report (Ex.-P/17 & P/18), it is proved that the human blood was found on these articles. if we look into the F.S.L. report Ex.-P/17, it only makes an endorsement that blood stains were found on these articles and not that human blood stains. It comes in Para-4 of the report that thearticles are being sent for determination of origin and blood group to laboratory at _ i ,rmw Qiiminal Appea1,No;465 of2008 ' wic e ce o o s nc d n m b W P t he g j s srrde o b h we rs e /