••-'%. ^ nl? 1 m3^. ! t /"^"""'i^ J HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Sunil Kumar Sinha. J & Hon'ble Shri Radhe Shvam Sharma, J Criminal Appeal No. 1401 of 1996 Balluram alias Kumbhaialal Vs. State of Madhya Pradesh (NowState of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RADHE SHYAM SHARMA.J ^ °Y^ Sd/- R.S. Sharma Judge Post for Judgment : ^ 709/2011 Sd/- Sunil Kumar Sinha Judge HIGH COURT OF CHHATTISGARH, BILASPUR DB: Hon'ble Shri Sunil Kumar Sinha, J & Hon*ble Shri Radhe Shvam Sharma,J. APPELLANT Criminal Appeal No. 1401 of 1996 Balluram alias Kumbhajalal s/o Karam Singh, aged 19 years, R/o Gram Tendudarha, Thana Sarsiwa, Raipur (MP) (now CG) RESPONDENT Versus State of Madhya Pradesh (now CG) Through Police Station Chakradhar Nagar, Raigarh (Criminal Appeal u/s 374 (2) ofthe Code ofCriminal Procedure, 1973) Appearance: Shri Suryakant Mishra, Advocate for the appellant. Shri Ashish Shukla, Government Advocate for the State. JUDGMENT (0^.09.2011) The following judgment of this Court was delivered by Sunil Kuinar Sinha, J, (1) This appeal is directed against the judgment dated 28th of June, 1996, passed in S.T. No. 30/95 by the 1st Additional Session Judge, Raigarh. By the impugned judgment, the appellant has been convicted under Sections 302 and 201 IPC and sentenced to undergo R.I. for life and R.I. for 2 years. '"~>Y- CRA 140V96 In-iiiUh. •^' (2) The facts, briefly stated, are as under:- Deceased- Sumitra Bai was living as wife of the appellant. In September, 1994, they were residing in a Hut in Raigarh, which was constructed over the plot of Tekchand (PW-1). In fact, levelling of the plot was going on and the appellant was appointed as a Chowkidar by the land owner. On 9.4.1994, the appellant informed Tekchand (PW-1) that he is going to his native place along with Sumitra Bai. Thereafter, the appellant and deceased Sumitra Bai were 'not seen in Raigarh. On 15.9.1994, the labourers working on the plot felt foul smell from a place on the plot. They immediately informed Tekchand. Tekchand lodged a report in Police Station Chakradhar Nagar, which was reduced into writing in Rojnamcha Sanha dated 15.9.1994(Ex.P/ll). The Investigating Officer reached to the place of occurrence and the dead body of the deceased was exhumed from that place. Panchanama (Ex. P/7) was prepared. After giving notice to the Panchas (Ex. P/l),inquest on the dead body of the deceased (Ex. P/2) was also prepared and the dead body was sent for postmortem. The postmortem examination was conducted by Dr. R.K. Agrawal (PW-17), who noticed many injuries on the body of the deceased. The postmortem report is Ex. P/21. In further investigation, the appellant was taken into custody and his memorandum statement under Section 27 ofthe Evidence Act (Ex. P/5) was recorded and one sickle was seized at the instance of the appellant vide seizure memo Ex. P/6. Prosecution came with the case that on account of illicit relations between the appellant and deceased, the deceased conceived pregnancy of 3 months, therefore, the CRA 140^6 appellant brought the deceased from their village and started residing at Raigarh, where he committed murder of the deceased and buried the dead body and fled away, leaving possession of the hut. (3) There was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. The appellant came with the defence that after informing Tekchand (PW-1), he went to Korba in search of some other job and the deceased was left at Raigarh, therefore, he was not responsible for commission of murder of the deceased. (4) The learned Sessions Judge did not accept the above defence of the appellant and convicted and sentenced him on the evidence of last seen. (5) Shri Suryakant Mishra, learned counsel for the appellant argued that the deceased was lastly in the company of the appellant on 9.9.1994 and thereafter, her dead body was seen on 15.9.1994. There was a long gap between the last seen and the dead body recovered, therefore, the conviction based on the solitary ^' evidence oflast seen, cannot be sustained.. (6) On the other hand, Shri Ashish Shukla, learned Govemment Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. CRA 140^96 hmn1"^ (7) We have heard learned counsel for the parties at length and have also perused the records of the court below. (8) Admittedly, there is no eye-witness to the incident and the case of the prosecution is based on circumstantial evidence. The solitary circumstance is that of last seen. The deceased was lastly seen in the company of the appellant on 9.9.1994 and thereafter, •r' her dead body was recovered on 15.9.1994. Therefore, there was a long gap of 6-7 days in between the deceased seen alive in fhe company of the appellant and her dead body recovered, hence a possibility of any other event in between this period cannot be fully ruled out. (9) The appellant has explained that after the talk with Tekchand(PW-l), he left the hutment all alone and went to Korba. Kanhaiyalal Chouhan (DW-1) has been examined by the appellant in this regard. He deposed that the appellant at the relevant time on Saturday, came to his place in search ofjob; he said that he is coming from Raigarh and after managing a job at Korba, he shall go to Raigarh and shall bring his wife. (10) In Dhananioii Chhatteriee -Vs- State of W.B. f1994) 2 SCC 22 the Supreme Court held aln a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not [ A""^. ;/'"^^ "'•%, CRA 1401/96 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." (11) In Bodh Raf alias Bodha and others -vs' State ofJammu and K'ashmir. 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: 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 CRA 140^/96 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. About the last 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 when there is a long gap and possibility of other persons coming in between exists. In the absence of any 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. (12) The learned Sessions Judge did not accept the above defence of the appellant and held that the above solitary evidence of last seen was sufficient to hold that the appellant was the culprit in crime. Apart from the above evidence of last seen, there is no other incriminating evidence against the appellant. The learned Sessions Judge appears to have been impressed by the evidence of village Panchayat held in the native place of the appellant after disclosure of carrying pregnancy of 3 months by the deceased and thereafter, bringing the deceased from their native place (village Tendudarha) CRA 1401/96 @? to Raigarh, and taking that, on the above motive,' the appellant must have committed the murder of the deceased. The above facts may give rise to suspicion. But, the suspicion, howsoever strong, cannot take the place of proof. (13) After going through the entire material on record, we are of y the view that the conviction based on the solitary evidence of last scen in light of the long time gap in between the last seen and the dead body recovered, cannot be sustained and the appeal deserves to be allowed. (14) Accordingly, the appeal is allowed and the conviction and sentences awarded to the appellant under Sections 302 and 201 IPC are set aside. The appellant is acquitted of the charges framed against him. The appellant was taken into custody on 15.9.1994. He was through out injail during the trial and was released on bail by order of this Court dated 11.7.2002. However, on some default, he has been rearrested on 9.5.2011. Presently, he is injail. He be released forthwith, if not required in any other case. I Sd/- | Sunil Kumar Sinha Judge i Sd/- R.S. Sharma Judge