rx HIGH COURT OF CHHATTISGARH AT BILASPUR 3 LN D.B.: HON’BLE SHRI RAJEEV GUPTA, C.J. 88 HON’BLE SHRI SUNIL KUMAR SINHA, J. Criminal Appeal No. 579 of 1991 APPELLANT Inder aged about 50 years, sOn of Hadma Madia, resident of Village Bandaji, Tomsiguda, ’ Police Station Lohandiguda, District Bastar Versus State of Madhya Pradesh (Now State of Chhattisgarh) Through Police? Station Lohandiguda, District Bastar (CG) ¢ i RESPONDENT . APPEAL UNDER SECTION 374 ]2[ OF THE CODE OF CRIMINAL PROCEDURE Appearance : Mr. Vishnu Koshta, Advocate for the appellant. ; Mr. Akhil Mishra, Dy. Govt. Advocate for the State. JUDGMENT a (10 .01.2o11) a Following judgment of the Court was delivered by Sunil Kumar Sinha, g: (1) This appeal is directed. against the judgment dated 11.5.94 passed in Sessions Trial-“No. 270/93 by the Second Additional Sessions Judge, Jagdalpur, Bastar. By the impugned judgment, the appellant has been convicted u/ss 376 (1) & 302 IPC and 2 (5)73 Criminal Agpgal No. 579 of 1994 sentenced to undergo R.I. for 10 years 85 imprisonment for’life with a further direction to run the sentences concurrently. r The facts, briefly stated, are as under:- Three accused persons were trial u/ss 363, 366, 376 (2) (g) 8L 302 in alternative 302/34 IPC for commission of gang rape and murder of Muchaki Mase. On 6.4.93, the dead body of deceased— Muchaki Mase was found in a nala near village— Badanji. There were many injuries on the body. 1 uVillage kotwar— Mangluram (PW-3) lodged dehatinalishi (Ex.— P/l). The Investigation Officer gave notice to the Panchas and prepared inquest (Ex.—P/7) on the body of the deceased. The dead body was sent for post—mortem to Primary Health Centre, Lohandiguda, where the post—mortem examination was conducted by Dr. R.K. Naag (PW—6). He noticed many external injuries on the body of the deceased. The hymen was ruptured and there were injuries in vagina. All the injuries were ante—mortem caused by hard and rough object. There was fracture on the temporal bone. He opined that the cause of death was shock due to excessive haemorrhage and the fracture of skull and it was homicidal in nature. He also opined that the girl was subjected to forcible sexual intercourse. The post—mortem report is Ex.-P/9. The case of the prosecution is that in the interveningjnight of 5.4.93 85 6.4.93, Nata (a customary dance—drama usually organized in Bastar) was organized in village Badanji. The deceased and her friend Sukaldei (PW—2) had also gone to see Nata. The allegations are that the appellant, who is brother—in—law (jija) of the deceased, came there, talked with the deceased, and thereafter he took‘The deceased with him. The two other accused persons immediately followed him. Thereafter the deceased did not return either to the Nata place or to the village and inthe next morning i.e. on 6.4.93 her dead body was found in the nala. The prosecution came with the case i l ‘ ‘ (5‘3 1 Criminal Appeal No. 579 of 1994 that the deceased was taken by the appellant and she was subjected to forcible sexual intercourse by the appellant and other co—accused persons and thereafter they committed murder of the deceased. ‘ g (3M There are no eye-witnesses to ‘the incident and the case of thel prosecution is based on circumstantial evidence. The main circiumstance, on which the Sessions Judge relied, is the circumstance of last seen together. It was held that since the i V ‘ appellant took the deceased when she was seeing Nata alongwith her friend Sukaldei (PW—2) and it was established that the deceased was subjected to forcible sexual intercourse and she dieid homicidal death, therefore, the appellant was liable for puhishment u/ss 376 (1') and 302 IPC. The Sessions Judge, therefore, convicted and sentenced the appellant as aforementioned. However, other two accused persons were acquitted. (4) To prove the circumstance of last seen together the pr0secution relied on 3 witnesses namely Jagannath (PW—1 — real brother of the deceased), Sukaldei (PW—2) andé‘Ramu (PW-4). The learned Sessions Judge, on a close scrutiny of the evidence of the above witnesses, held that Jagannath (PW—1) and Ramu (PW—4) were unreliable. However, the testimony of Sukaldei (PW—2) was "' held reliable and it washeld that the appellant took the deceased with him from the place of Nata and thereafter the deceased was found dead. } (5) Mr. Vishnu Koshta, learned counsel appearing on behalf of the appellant, argued that Sukaldei (PW—2) is not a reliable witness; there are many material discrepancies in hei; evidence; she did not disclose the story to anyone till 8.4.93 when her 161 statement was recorded; and her conduct appears to be unnatural. He also argued that the deceased was sister-in—law (sali) of the appellant, therefore, even if she was seen in the company of the appellant in a Mela where 1000—2000 persons were visiting, that itself would not lead to the conclusion that the appellant was author of crime. He further argued that even othierwise also looking to the time gap between the deceased lastly sedn in the company of the appellant and dead body found, a possibility of any other person coming in between cannot be fully ruled out, therefore, the conviction based on the solitary circumstance of last seen cannot be sustained. (6)} On the other hand, Mr. Akhil Mishra, learned Dy. Gov. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passeti by the Sessions Court. 6‘ (7) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. ..1\ (8) In Dhananjoy Chhatterjee —Vs~ State of W.B, (1994) ? SCC 22 the Supreme Court held “In a case based on circumstantial evidence, a the circumstances from which the t 5 Criminal Agpeal No. 579 of 1994 conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established I 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 3 V ‘ 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 scruitinize the evidence lest suspicion takes the plhce of proof.” (9) In Bodh Rai alias Bodha and others -vs- State ofJammu and Kashmir, AIR 2002 SC 3164, the Supreme 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: é 6 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; 6 Criminal Appeal No. 579 of 1994 4) they shbuld 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. 110): About the last seen theory, in many cases, 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 .t t V l deceased were seen last alive and when the deceased is found dead is so small that possibility of any person. other than the acc1ised being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased wasilast 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. s . (11)§ Sukaldei (PW=2) was‘aged about 13—14 years. She deposed that on the fateful night, she had gone to Village Badanji to see v Nata along with the deceased. Ramu etc. had also gone to village Badanji. She was sitting along with the deceased.~Jagannath (PW— 1) was also sitting at some distance from them. Appellant— Inder came to them and dragged-\the deceased. Thereafterthe deceased did not return back. In the morning, she returned all alone to her village. She admitted in her cross-examination that on the next é 7 day police came to their village and took Jagannath (PW—1), Ramu (PW—4), Dashru, Jhimtu and this Witne‘ss (PW2) to the police statn. We note that her 161 Cr.P.C. statement was regorded by io the police on 8.4.94. She further admitte in the cross- d eaination that she did not disclose the name of the appellant to xn'i any body else till the arrival of th police. If, in fact, she was e knoing all this and n the ne morning sh came to know that v‘v o xt e the ead body o the deceased was found in nala, she would have a " discosed the facts that the deceased was taken by the appellt l an in te night, on the next day itself when she met with the police. h But he did not do so and ultimately, she disclose all this after 2 .s d day. According to Sukaldei P—2) about 1000—20 persons wer present in Nata. The ta wa going on at 3 places. The aboe persons were vising all the plae and were enjoying the v ti c Nat. She also admitted that Inder and the deceased wer a e chating with each other at the Nata place and she was present at t a ditance of about 20—25 steps from tem, therefore, sh doubted s h e tha Inder had taken the deceased. On appreciation f the entire evince of Sukaldei (P~2), it appears that her evidence de W regarding last seen is shaky. Though ‘she had seen the deceased chatting with the appellant, but she was not sure that the appellant took the deceased with him, therefore, her version of examination-in4chief, in‘which, she deposed that the appellant v had dragged the deceased becomes doubtful. Admittedly the deceased was the sister—in—law (salt) of the appellant. Even if she was seen in the company of the appellant in Mela where IOOO- r Criminal Appeal No. 579 of 1994 — d f i s (W 00 e Na s t o Criminal Appeal N0. 579 of 1994 2000 persons had gathered, it would hardly be an incriminating circumstance to hold that it was the appellant who committed murder of the deceased. Moreover, we also find that according to £ Sukaldei (PW—2), the} appellant and the deceased were seen together in the night and the dead body of the deceased was l found on the next morning at about 7-8.00 a'.m. Therefore, there was ‘a long time gap between the deceased allegedly seen alive in the dompany of the appellant and the time when her dead body t a ‘ found. Looking to the time gap between the above two events a possibility of any person other than the appellant being author of crime cannot be said to be impossible. In the absence of any other positiive evidence to conclude that the appellant ahd the deceased i werellastly seen together, in our opinion, it would be hazardous to come to the conclusion of the guilt of the appellant on solitary evidence of Sukaldei (PW—2). (12y For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellant u/ss 376 (1) 8c 302 IPC are set~aside. It is stated that the appellant was taken v" into Custody on 10.4.93 and he was directed to be released on bail on 9.4.2003 and presently he is on bail. His bail bonds are cancelled and surety stands diSCharged. i vatti ’Sd/- I'zmt;}:-:;_; ‘ ‘ Sd/— Chief Justice ' .VSunil Kumar Sinha Judge l,‘,J..L;"