HIGH COURT OF CHHATTISGARH. BILASPUR D.B.: HON’BLE SHRI RAJEEV GUPTA, C.J. 86 HON’BLE SHRI SUNIL KUMAR SINHA, J. Criminau Appeél No. 619 or 1994 Gangadhar & Others ‘Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration ' Sd/- ‘ SUNIL KIMAR SINHA -' Jude ~ HON’BTIE SHRI JUSTICE RAJEEV GUPTA ’f/ ¥ K9, sdl- W Chxef Justlce Judge 5L z Post for Judgment /2/é_//0r1’/ 2011 Sul- ' f Sunil; Kumar Sinha 1‘ .Judge g ‘ x HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: M HON’BLE SHRI RAJEEV GUPTA C.J. & M HON’BLE SHRI SUNIL KUMAR SINHA J. Criminal Aggeal No. 619 of 1994 APPELLANTS 1 Gangadhar son of Sudharam Satnami, aged 50 years 2 Jeewanlal son of Gangadhar Satnami, aged 32 years 3 Mukesh Kumar son of Gangadhar Satnami, aged 25 years 4 Devkumar son of Gangadhar Satnami, aged 21 years {I All Agriculturists, residents of ‘ Village Chhotesipat, Police Station Malakhroda, District Bilaspur, M.P. (Now Chhattisgarh) Versus RESPONDENT The State ‘of Madhya Pradeéh (Now State of Chhattisgarh) APPEAL UNDER SECTION 374 ‘2) OF THE CODE OF CRIMINAL PROCEDURE Appearance : Mr. Yogeshwar Sharma, Advocate for the appellants. Mr. Akhil Mishra, Dy. Govt. Advocate for the State. JUDGMENT ( 1 .2 .2011) Following judgment of the Sunil Kumar Sinha, J: Court was delivered by (1) This.appeal is directed against the judgrnent Hated 9th of June, 1994 passed in Sessions Trial No. 161 /92 by the Additional Sessions Judge, Sakti. By the impugned judgment, the appellants \ \ 2 Criminal Appeal N0. 619 0f 1994 have been convicted u/s 302 IPC and sentenced to undergo imprisonment for life and pay fine of Rs.2,000/—,.in default of payment to further undergo R.I. for 1 year. (2) The facts, brief1y stated, are as under:— Two deceased persons namely Koduram and Sarhu were father. and son. They were residents of village— Chotesipat. In the early morning on 11.1.92, their dead bodies were found in the outer area of the Village. Kotwar, Baratrarn (PW—6), went to their house and told Dhanmat Bai (PW-1 — wife of deceased— Koduram). Dhanmat Baj lodged the First Information Report (Ex.-P/ 1) on 11.1.92 at about 9.30 a.m. The Investigating Officer reached to the place of occurrence, gave notices to the Panchas and prepared inquests (EX.—P/2 & P/3) on the bodies of the deceased persons. The dead bodies of the deceased persons were sent ‘for their post—mortem to PHC, Malkharoda. The post—mortem examinations were conducted byvDr.(Smt.) U.J’ Alen (PW— 11). She noticed multiple injuries on the dead bodies and opined that the causes of death were shock on account of haemorrhage caused by injuries sustained by the deceased persons. The deaths were homicidal in nature. The post— mortem reports are EX.—P/33 & P/34, During the course of further investigation, the appellants were taken into custody and their memorandum statements (Ex.—P/10, P/11, P/12 85 P/13) were recorded u/s 27 of the Evidence Act and various articles, including the cloths and tangi were seized at the instances of the appellants. The seized articles were sent for their chemical examination to Forensic Scienée Laboratory,% Sagar, from where, a report (Ex.—P/32) was received. According to the F.S.L. report, blood stains were found on the cioths and 3 Criminal Appeal No. 619 of 1994 @ 9 tangia seized at the instances of the appellants, but no report relating to their origin or group etc. could be filed. The prosecution came with the case that the relations between the two families i.e. the family of the appellants and the family of the deceased persons were not cordial on account of a land dispute therefore the appellants Who are father and sons committed murder of the deceased persons after 7 00 p m on 10 1 92 and the dead bodies were found 1n the next mornlng. (3) Admittedly, there were no eye-witnesses to the incident and the case of the prosecution was based on circumstantial evidence. Following are the circumstances, on which, the learned Sessions Judge relied for convicting the appellants for commission of murder of the deceased persons:- ‘(i) ’ The relations between the family of the appellants and the family of the deceased were inimical; (ii) At about 7.00 p.m. on 10.1.92, the appellants took the deceased persons with them and thereafter in the next morning, the dead bodies of the deceased persons were r t found, therefore, the deceased persons were lastly seen in the company of the appellants; 8L (iii) Blood stains articles, including tangia, were seized at the instances of the appellants. 4 (4) Mr. Yogeshwar Sharma, learned counsel appearing on behalf of the appellants, argued that the solitary witness of last seen namely Dhanmat Bai (PW-1) is wholly unreliableAShe has put theory of last seen for the first time in the Court. She lodged the F.I.R. (Ex.—P/ 1), in which, there is omission about the last seen. 4 @ He also argued that in absence of origin and group test of the blood stains found on the articles seized at the instances of the appellants, the said circumstance cannot be held to be incriminating against them. Criminal Awal No. 619 of 1994 (5) On the other hand, Mr. Akhil Mishra, learned DypGovt. Advocate appearing on behalf of the State, opposed these argumentsand supported 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 Dhananjoy Chhatte_rjee —Vs- State of W.B, (1994) 2 SCC ~ 22‘ the Supreme Court held “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 5 Criminal Appeal No. 619 of 1994 more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof.” (8) In Bpdh Raj alias Bodha and others —vs- State of Jammu and Kashmir, AIR 2002 SC 31 64, the Apex Court laid down that there is no doubt that conviction can be based solely on circumstantial evidence but the c0nditions 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 hypothesisof the guilt of the accused, that is to say, they. should not be explainable on any other hypothesis except that the accused is guilty; the circumstances should be of a conclusive nature and tendency; 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. 4) About the last seen theory, the Apex Court held that the last seen s. theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when th‘e 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 6 g 4 Criminal Agpeal No. 619 of 1994 ' positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons comlng 1n between emsts In the absence of any other pos1t1ve ev1dence to conclude that accused and deceased were last seen together, 1t would be hazardous to come to a conclusion of a guilt in those cases. (9) In the present case, the conviction is mainly based on circumstance of last seen. Dhanmat Bai (PW—1) is the Wife ’of deceased— Koduram. She deposed that on the fateful night Kotwar Baratram (PW-6), and-the appellants came to her house and took her husband with them saying that they will drink and eat together. They also took her son (deceased- Sarhu}. Her husband and son did not return in the night. In the early morning of next day, Baratram—Kotwar (PW—6) came to her house and told that the dead bodies of the deceased persons are lying in the fields. She went to that place and saw the dead bodies. There Were injuries on the dead bodies. She became unconscious, She deposed that W she cannot say as to where she lodged the F.I.R. (Ex.—P/ 1) or not. In fact, she denied the entire FIR. (Ex.—P/l) lodged by her on 11.1.92. H.P. Singh (PW—10) is the Investigating Officer. He categorically deposed that the F.I.R. (EX.—P/1) was lodged by Dhanmat Bai (PW— l) who put her thumb impression at portion ‘A to A’ In fact he reduced 1nto writing the contents of the FIR lodged by Dhanmat Bai (PW 1) In the F I R which 1s 1n much detail, there 1s om1ss1on of the fact that the appellants and \(Bara‘tram—Kotwar (PW—6) came to the house of Dhanmat Bai (PW— ‘\ a / 7 Criminal Appeal No. 6 1 9 of 1994 hD 1) and they took the deceased persons saying that they will drink & eat together. It appears that Dhanrnat Bai (PW-1) brought the theory of last seen for the first time in the Court itself. The above omission in the F.I.R. (EX.—P/ 1) was fatal to the prosecution. The learned Sessions Judge has dealt with this aspect in Para-21 of the judgment and has held that since Dhanmat Bai (PW-1) was shocked on account of death of her husband 8a son, therefore, she might have omitted this fact in the F.I.R. The said approach _of the Sessions Judge does not appear to be reasonable and justified. Dhanmat Bai (PW—l) was the sole witness of the alleged circumstance of last seen. If, in fact, the deceased persons were z taken by the appellants and Kotwar—Baratram (PW—6), she must have mentioned this fact in the F.I.R. (Ex.-P/ l) promptly lodged by her. The evidence of Dhanmat Bai is also not.corroborated by the evidence of Kotwar—Baratram (PW—6). He never deposed that he had gone to the house of the deceased persons with the appellants as claimed by Dhanmat Bai (PW-1). He simply deposed 7 r that he came to know about two dead bodies in the morning and he informed about the said incident to the wife of deceased- Koduram in the morning itself. On appreciation of the entire evidence available on record, we are of the view that the prosecution utterly failed to prove the alleged circumstance of last seen in this matter. x a (10) So far as inimical relations between the two families are \ concerned, that itself would not be sufficient to hold that the / 8 @ appellants must have committed murder of the deceased persons. The circumstance of seizure of blood stained articles at the instances of the appellants, in the facts and circumstances of the case, would not be sufficient to hold them guilty of the offence of murder of the two deceased persons, as the prosecution could not establish the origin of the blood stains found on the said articles. Criminal Appeal No. 619 of 1994 (11) FOr theforegoing reasons, we are unable to sustain the conviction of the appellants on the above set of circumstantial evidence and the judgment of conviction deserves to be set—aside. (12) Accordingly, we allow the appeal and set—aside the conviction and sentences awarded to the appellants u/s 302 IPC. The appellants are acquitted of the charges framed against them. It is stated that the appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. \\ .S(‘ill- gin Sdl— Sunii- Kumar Sinha 7 Chief Justice Judge Judge vatti