~'\ ''{"• f ;" *;e.a ^ ''^ft'S^ i!;"i:^ (In Jail) . T.P, S: R.L. Hariram soii of Budhava Kanwar aged about 32 years, residence of vUlage Nawapara, Tahsil Ghai^hoda Distt. Raigarh M.P. Vs. itate of M.P. !.S. Gharghoda through the 8.0. (Ralgarh). Present:- Siiit.IndiraTripafhi, Advocate forftie appellaat. Shri Sandeep Yadav, Dy, G.A. for fhe State/resp.ondent. 1. The foUowing iudgment of the Court was passed bv c'hallenge in this appeal is to fhe judgment of convection and order of sentence dated 7/9/92 passed by First Additional Sessions Judge, Raigarh m Sessions Trial No. 60/92 whereby and where iinder after holduis the appellaiit guilty for fhe comiitission of culpable homicide amounting to murder of deceased Baharteen Bai convlcted fhe appeUant under Section 302 of the Indian Penal Code and sentenced imprisonment for life 3^1 and Gne of Rs. 100/- ta default of payment of fine amount; additional rigorous imprisortment for 1 monfh.. 2. The judgment is impugned on fhe ground fhat wifhout any clinching and credible evidence Court below has convicted and sentenced fhe appellant aforementioned and thereby comm.itted an Ulegaltty. 3. Case of fhe prosecution tn brief is that. on fateful interveniag night of 3/1/92 & 4/1/92 before her deafh deceased Baliarteen Bal was present tn the house of PW4 Baddu deceased Baharteen Bai and appeHant let the house of the Baddu and deceased was seen alive last ttme in tlie coinpany of appellaat by fhe Baddu day on 4/1/92 at about moming the dead body of deceased was found in the bam of fhe Tilakram.. The marg was mtimated vide Ex. P-1. Pirst Information Report was lodged vide Ex. P-2, after summ.oning of fhe witnesses vide Ex. P-3. Inquest over the dead body of deceased was prepared vide Ex. P-4. Dead body was sent for autopsy vide Ex. P-22. Autopsy was conducted by FW16 Dr. Nalin Chandra Rai vide Ex. P-24 and foiind foUowmg injuries:- (1) abrasion over head, Bp, bofh fhe breasts, right elbow and over back. Injury were ante-m.ortem hi natnre. The cause of deafh was suffocation and death was homicide in nature. ^:.3.^|.A,, g "!'ffl /t' 4 w One San., one undergai'ment and broken piece of bangle were found on fhe spot were recovered vide Ex. P-6. Spot ruap was prepared vide Ex. P-9. One Lungi of the appenaat taken out by witness PW6 Rasmati was seized vide Ex. P-10. Pativari also prepared spot map videEx. P-19. Statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (m short fhe Code'). After completion of the investigation charge sheet v/as ffled before the Judicial Magistrate First Class, Gharghoda who m turn committed fhe case to fhe Couil of Sessions, Raigarh, learned Sessions Judge received fhe case on ti'ansfer for trial. In order to prove fhe guilt of the appellant/accused prosecution exam.tned as weH as 16 witnesses. Accused was examtned under Section 313 of the Code where he denied the circumstances appearing against him, ianocency and false implication is claimed. After aEfording an opporturuty of hearing to the pardes leamed Additional Sessions Judge convicted and sentenced the appellant aforementioned. Leamed counsel for the parties are heard. Judgment impugned aad record of Court below perused. Leamed cormsel for the appellant vehemently argued that prosecution has not adduced any evideuce to connect the appeUant wifh crune m question. Conviction is solelv based on fhe evidence of last seen together but aU the wltnesses have specifically deposed that deceased was present tn fhe house of PW4 Baddu along wifh other persons mcludmg the appellant and all persons left the house of Baddu aloiig wi't3 deceased. This evidence is not sufilcient to connect the appellant with crime in question on fhe ground th.at appeUant was tfae only person in corapany of deceased seen last time alive. Prosecution has not adduced any oUier set of evidence in absence of any evidence the conviction of fhe appeUant is not sustaiaable. Leamed counsel for the appeUant placed reliance in fhe matter of Inderfit Singh and euvothw, Aptfellant v. tate of Puni'eib, Respondent1 in which Apex Court has held that in absence of dtrect evidence to connect the accused with crmie and fhat there was any emnity between accused and deceased, the accused cannot be convicted under Section 302 ofthe I.P.C. merely on fhe ;round fhat he was last seen in the corapany of fhe further placed int v. 11. Leamed counsel for fhe rellaace in fhe raatter of ' AIR 1991 SC 1574 tSWSSI^SWF^ 's^: LesnoHdent2 in which Apex Court held that ui case of circumstantial evidence prosecution is required to prove the coiiiplete chatn of circumstantial evidence sufEicient for drawing tiie presi.miption ofgTiilt ofthe appellant. 12. On the other hand, learned Counsel for the respondent/State opposed fhe appeal and submits that conviction is based last seen theory and in fhe present case endence adduced on behalf of fhe prosecution is sufficient for drawing an inference that appellant was a person who has committed homicidal deafh of the deceased Baharteen Bai. 13. In order to appreciate the argiiment advanced on behalf of fhe parties we have examined fhe evidence adduced on behalf of the prosecution. 14. In the present case, deafh of fhe deceased has not beeu substaiitially disputed by the appeUant on the other hand, otherwnse also established by the evidence of PW16 Dr. Nalin Chandra Rai and autopsy report P-26 in which it r^veal that death was suffocation and some '». superflcial abr.p.sions were fouiid over the breasts, right elbow, back lip and head. 15. As regard the complicity of the appellant/accused in crime in question is concemed the conviction is based 2001 CRI.L.J 4048 ^>7 , 16. on last seen ttieory PW1 Mahesh, husband of the deceased has deuosed m. his evidence that his wife Baharteen Bai was present ui the house of the PW4 Baddu but even after haif an houj- she did not come back then Karamwati wtfe of the appeUant csjiie to his house and told that his wife has consumed liquor in. excessive quantity fherefore she is not in posifion to walk fhen he went wifh his sister PW6 Rasmoti for taking his wtfe but he does not find his wtfe- He seai'ched his wtfe even they went to the house of the appeUant and asked to fhe wife of fhe appellant about wife then she told fhat deceased and appeUant. had not corae to her house whUe he was cominR back to his house, he saw the appellant whom his sister asked the appeUant fhat where he had gone then he told that earlier he had gone to Ghai^hoda. During course of search ihey found one Lungi of the appeUant lying in the way. On second day fhey went to the place where dead body of deceased was lyitig in fhe bam of Aghan Sal in tnjured condition. She was bearing only Petticoat, Sari was layiag at another He went to the PolicR Station and lodged the report. PW2 Jaylal Patel has only supported the case that dead body of ttie deceased was foui-id in second day. PW6 Rasmoti sister of PW1 Maliesh has also deposed that. •^'^.K'-;\:, j .-;;-; - S:'ilr" 7J wife of fhe appeUant requested her to take the deceased then she along with his brother Mahesh went to the house of PIV4 Baddu where appellant and deceased were not present. PW8 Karamvati, wife of appellant has not corroborated.fhe evidence of prosecution. 17. Case of tlie prosecution is substantiaUy based on evidence of PW4 Baddu from. whose house appellant odv of and deceased went away and the deceased was found. PW4 Baddu hostile witaess has deposed that deceased, son of the deceased, appellant, wtfe of fhe appeUant and his son were caiiie to his house to see the tnjury of his daughter. After some Uiue husband of the deceased Mahesh along wifh his child went to his house. PW4 Baddu has further deposed that all persons including the deceased and her husband left her house sim.ultaneously although prosecution has declared PW4 Baddu hostile but even in his cross exainination prosecution has not been able to illicit anyttang to show that appellant and deceased left the house of this witness togefh.er. Ofher wdtnesses have speci&caUy deposed that deceased and appellant left the house of fhe Baddu at fhat ttme they were not present. The conviction of tt-ie appellant. is based last seen theory accordinR to evidence adduced on behatf of fhe 's^) prosecution appeUaiit and deceased left the hoiise of the Baddu but prosecution had failed to adduce any evidence to support this fact. According to the stateiuent of fhe evidence of PW 1 Mahesh husband of the deceased he searched his wife at night even he rn.et with appeHant, his wife (wife of appellant) and his sister found one Lungi of fhe appeUant which was lymg in a way but they have not interrogated fhe seriouslv. AUeged Lunai was not placed for identification even according to the case of the prosecution the deafh of the deceased was as a result of sufibcation but no fatal injiiry was found over the body of the deceased. 20. Prosecution has also not proved fhe inotive of the criine tn absence of evidence relating to last seen theory, motive of the crime, cause deafh whether it was honiicidal. It is difBcult to hold that appellant had committed the offence. Leamed Additional Sessions Judge has convicted the appeUant under Section 302 of fhe I.P.C. but has not considered these material facts and thereby committed an iUegality. 21. In the present case; evidence adduced on behalf of the prosecution is not sufBcient for drawing an inference that deceased was seen alive tn fce company of appeUant last time. Secondly, deceased died as a result of injz.uy and deafh was homicidal in nature. In absence of aforesaid evidence the conviction and sentence uiider Section 302 of I.P.C is not sustainable under the law whUe convictiag the appellant under Section 302 of flie Indian Penal Code com't. below has not considered the aforesaid material facts aad fhereby coiamitted aii illegality. )2. For the foregotng reason, Appeal is aUowed. Conviction of the appellant under Section 302 of fhe Indian Penal Code is herebv set aside. He be set at liberti7 at once. Sd/-~"~. T- p- Sharma Judge Sd/- R.L. Jhanwar Judge