HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Aggeal 3057212001 Bali Ram @ Raju @ Suresh @ Balram s/o Nakul aged 35 years, R[0 Parsulidih, RS. Abhanpur, District Raipur (Chhattisgarh) APPELLANT VERsus‘ ' 6F kEéPGNDENT State Chhamsgarh RIMINAL APPEAL UNDER SECTION 374 i 2 I OF THE CODE “ OF CRIMHVAL PROCEDURE ‘Apyearance Shn Anan+ BaJpal, counsel for the appellant Skua Qamarul Am, Panel Lawyer for the State. Division Benet- ‘Hon’ble Shri T.P. Sharma 85 Han’ble Shri R.L.Jhanwar,JJ ORAL JUDGMENT (1 1.02.2010) Per T.P.Sharma, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 19.1.2001, passed by the First Additional Sessions Judge, Raipur in Sessions Trial No.408/2000, whereby and whereunder the leamed Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide, amounting to murder of Shiv Kumar, convicted the appellant under Section p302 of the I'PC and to pay a nne of Rs.1000/ —, in default of payment of nne to further undergo RI. three months. 2. The judgment impugned is challenged on the ground that without any legal and clinching evidence, the learned Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. i 3. Prosecution case in bn'ef is that on the fateful day of 27.7.2000 in the night at about 11.00 p.m., the appellant and the deceased came to the house bf Chiranjivi (PW~3) from where they ltook some clothes and went together to the tea shop in the hut of B‘aliram for sleeping. On the second day moming i.e. 28.7.2000, dead body of Shiv Kumar was found in the. teashop of Baliram in injuted condition. Thereafter, brother of Shiv Kumar, Chimnjivi (PW-3) went to‘the Police Station and lodged merg intimation vide Ex. P/6 and Dehati Nalishi vide Ex. P/7. [On the basis of Dehati NaJishi, RI. R. was lodged vide Ex.“ P] 19. The Investigating Ohicer left for the scene of occurrence and after summoning witnesses vide EX. Pf 1, inquest over the dead body of Shiv Kumar was prepared vide Ex. P/2. Blood stained soil, plain soil, blood stained lungi, blood stained plastic bag and jute bag, blood stained wool shawl, piece of used.bidi, one blood stained stone was recovered from the spot vide Ex. P/3. The dead body was sent for Medical College Hospital, Raipur vide Ex. P] 14. Autopsy was conducted by Dr. S. K. Dadu (PW-7) vide EX. P] 11 and found following injuries : i. One lacerated wound over left side of head of 6 cm x 3 cm long scalp deep. 11 One lacerated wound over the back part of left ear of 4 cm diameter n1 One lacerated wound over the ear lobule of 2 cm x V2 cm iv. One abrasion over right side of chest of 6 cm X 1 cm obliquely transverse. Another abrasion of 4 cm x 1 cm over the neck. Bone ’of head was found fractured. Blood was present inside the brain. Injuries were ante mortem and death was due to shock as a result of excessive haemorrhage and death was homicidal in @ nature. Spot map was prepared vide Ex. P/ 15. The accused] appellant was taken into custody. He made disclosure statement of blanket and one cycle vide Ex. P] 16. Blanket was recovered at the instance of the accused/appellant vide Ex. P/ 17" Blood ‘ stained clothes of the accused/appellant were seized from the . appellant vide Ex. P/ 18. One Hero Cycle receipt was seized Vide ‘ Ex. P/9. One Hero Cycle and the receipt was seized at the instance of the accused/appellant from Lakhan~vide EX. P] 10. Seized articles were sent for chemical examination vide Ex. P/ 21. ¥ §tfatements of the witnesses were recorded under Section 161 of t ‘ the Code of Criminal Procedure, 1973 (in short “the Code”). t 4. After completion of investigation, charge sheet was tiled before the Judicial Magistrate First Class, Raipur, who in turn, committed the case to the Court'of Sessions, Raipur, from where the learned First Additional Sessions Judge received the case on transfer for trial. < \ \ i XL 5. In order to prove the guilt of the accused/appellant, prosecution has examined as many as 13 witnesses. The accused/ appellant was examined under Section 313 of the Code, in which, he denied the circumstances appearing against him and pleaded innocence and false implication. He has examined defence witness Preminbai (DW- 1), his wife, who has deposed that Police came to her house and they took the appellant for interrogation. They also took out RS300] ~ from the pocket of the appellant and nothing was seized other than money. 6. After aEording opportunity of hearing to the parties, the learned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. 7. We have heani Shri Anant Bajpai, learned counsel for the appallant and Shri Qamarul Aziz, lealnCd Pand Lawyer for the State, pcmsed the judgment and record of the trial Court. 8. ‘ Learned counsel for the appellant vehemently argued that the conviction of the appellant is based on ‘last seen theory’. Last seen theory itself is a weak type of evidence and is not safe for conviction Without any further‘vcorroboration. Acc0rding to the evidence of Chimnjivi (PW-3), the appellant and the deceased went to ‘the‘teashop of Balira'm from his house at about 11.00 p.111. and the dead body ‘was found at about 7.00 am. on the next morning. There yvas a long gap between last seen together and recovery of dead body of the‘deceased and there was every possibility of third person between the last seen theory and death of the deceased. Therefore, only on the basis of last seen theory and in absence of any legal evidence, the conviction of the appellant is not sustainable under law. 9. On the other hand, learned counsel for the State opposed these arguments and submitted that the conviction is based on circumstantial evidence of last seen theory. Evidence of Chiranjivi (PW-3), brother of the deceased is suilicient for drawing an inference that appellant and the deceased went from his house for sleeping in teashop and on second day morning, dead body of Shiv Kumar was found in the teashop. The appellant was not present there and he has not oh‘ered any explanation for that as to when he parted the company of the deceased. In absence of such explanation, circumstances of last seen theory are suhicient for drawing an inference that the appellant was the only person and author of the crime. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11. In the present case, homicidal death of the deceased-Shiv Kamar as a result ante mortem fatal injury has not been substantially disputed by the accused/appellant On the other hand 1t 1s established by the eVIdence of Dr S K Dadu (PW-7) and autopsy report Ex P/ 11 which revealed that the head mJuIy was found‘fatal and death was hom1c1dal 1n namre. 12. As regards comphcity of the accused/appellant in crime in questidn is concerned, the conviction is substannally based on the evidence of Chirailjivi (PW-3), who has deposed that on the date of incident, the appellant along With the deceased Shiv Kumar, brother of the Witness, came to his house. They had consumed liquor. His brother demanded beddings from him then he provided blanket and shawl to them and they went from his house to the teashop and on second day morning at about 7.00 a.m., he came to know that somebody has murdered one person in the teashop, on which, he went to the teashop where he saw the injured dead body of his brother. Then he went to Police Station and lodged FIR Vide Ex P/ 19 The appellant was not present 1n the teashop Blanket was not found 1n the teashop 13. Defence has cross examined the wimess Chimnjivi»(PW~3) at length. In para 4 of his cross examination, he has specified the clothes which his brother was wearing and when he came to his house. He has specihcally deposed that the appellant and the A deceased went fmrn his house together. In para 5 of his cross examination he, has stated that his brother came by rickshaw and w‘\ zone person who came with his brother also came by rickshaw to \ his house. His brother get down from the rickshaw and after \ k \ taking beddings, he again boarded in the rickshaw. Defence has cross—examined this witness at length, but has not been able to elicit anything in his cross examination to Show that the appellant did not come with the deceased to his house and the deceased has not been seen in the company of'the appellant last time alive. Other evidence adduced on behalf of the prosecution is corroborative in nature. ‘ Considering pata 3 of his evidence relating to identification 'of blanket in presence of'Police Ohicer, the evidence of identjjication is of no use. Although, the evidence of last seen together is a weak type of evidence and it requires further corroboration hem an independent source. x 14. While dealing with the question of evidentiaiy value of last. seen theory, in case of Bodhraj alias Bodha and others Vs. State of Jammu and Kashmir (2002 (8) SCC 45), the Apex Court observed in para 3 l as under : we "31.The last seen theory comes into play Where the time-gap between the point of time when the accused and the 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 the crime become impossible. It would be diflicult 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 other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased, A-l and A—2 were seen together by Witness i.e. PWs 14, 15 and 18; in addition to the evidence of PWs 1 and 2.” 15. in qase of State of UP v. eatish (2005 (a) scc 114), the 9 Apex Court observed in para 22 as under : “22. The last-seen theory comes into play where the time—gap between the point of time when the accused and th€ 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 the crime become impossible. It would be di$cu1t 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 other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in‘those cases. In this case there is positive evidence that the deceased and the accused 3 were seen together by witness PWs 3 and 5, in i addition to the evidence of PW2”. i 15.A. While dealing with the question of last seen together, the IApex Court in the case of Sahadevan alias Sagadevan v. State represented by Inspector of Police, Chennai { (2003) 1 SCC " 534-} has held that if the prosecution on the basis of reliable evidence establishes that the missing person was last seen in the company of the accused and was never seen thereafter, then it would be obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. Para 19 of the said judgment reads thus:- “19. The last circumstance relied on by the courts below pertains to the stand taken by the appellants in the trial as to parting company with Vadivelu. Here we must notice that as discussed hereiuabove, the prosecution has established the fact that Vadivelu Was seen in the company of the appellants hom the morning of 5.3. 1985 till at least 5 p.m. on the same day, when he was brought to his house and thereafter his dead body was found in the morning of 6.3.1985. Therefore, it has become obligatory on the appellants to satisfy the court as to how, where and in what manner Vadivelu parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person With whom he was last found has to explain the circumstances in which they’parted company. In the instant case the appellants have failed to discharge this onus. In their statement under Section 313 Cr.P.C. they have not taken any specinc stand whatsoever. In the evidence of PW—25, it £ a m« is elicitsd that on 5.3.1985 in the afternoon whsn Vadivclu was produced beforc the said Witness, he after mterrogan'on allowed Vadivelurto go but then it is found mm his evidence that he instructed A— 1 to keep a watch over Vadivelu'i In such circumstances, it was incumbent upon A—l to have expiained to the court in what circumstances they parted company. He has not given any explanation in this regard. On the contrary, the prosecution has established the fact that on the vexy day at about 5 p.m., Vedivelu was brought to the house of PW-l by the appellants which was seen ”by PW-S. This palt of the evidence of PW—S has gone unchallenged in the cross—examination and, therefore, we will have to proceed on the basis that, What is stated by PW-5 in this regard is true. If that be so, the prosecution has established the fact that on 5.3. 1985 at 5 pm. Vadivelu was still in the company of these appellants and, therefore, in the absence of any specific explanation from the appellants in this regard, and in vieW of the other incriminating circumstances against the appellants having been proVed by the prosecution, an adverse inference will have to be drawn against these appellants as to their part in the missing of Vadivelu. At this point, it may be relevant to note that though no specific stand has been taken by the appellants as to their parting company with Vadivelu, in their statement under Section 313 Cr.P.C., it is seen from the evidence of PWs. 1 and 5 that A—l told the said witnesses on the night intervening between 5.3.1985 and 6.3.1985 that Vadivelu had escaped nom the Police Station when he was allowed to sleep in the verandah of the Police Stah'on. This explanation given by A-l to PW-l which was also heard by PWs 5 and 14,clearly shows that the same is totally false and obviously was an excuse made by the appellants to conceal the true facts and, therefore, this circumstance of A—l making a false statement to PW—l can also be taken as a circumstance against the appellants, in establishing the appellants’ guilt. This Court in more than one case has held, that if the prosecution, based on reliable evidence, establishes that the missing person was last seen in the company of the accused and was never seen thereafter, it is obligatory on'the accused to explain the circumstances in which the missing person and the accused parted company. See Joseph v. State of Kerala (2000 5 SCC 197). Therefore, we are in agreement with the finding of the courts below that circumstance No.7 also stands established against the appellants”. ta 3 17. As is held in cases of Bodhraj (Supra) and State of UP V. Sah'sh (Supra), in case of 'last seen theo1y, the fact that the accused] appellant and the recovery of dead body, there should not 1 be long time gap between the factum of last seen together and 1 recovery of dead body. « 18. In the present case, admittedly, the appellant was seen in ‘ the teashop along with the deceased where they went for sleeping ‘ and on second day morning, dead body of the deceased was found there in injured condition. The appellant was not present in the teashop and he has not oh'ered any explanation for that as to when he parted the company of the deceased. This is not a case where the appellant and the deceased were going together and have seen by some person, but this is a case where the appellant and the deceased went horn the house of Chimnjivi (PW-3), brother of the deceased with some articles for sleeping in the teashop. As is held in the case of Sahadevan (Supra), the appellant was under obligation to Oder explanation that when he parted the company of the deceased but, the appellant has not otfered any explanation that Why he fled. away from the teashop, when he fled If these 16. The Apex Court has held that last seen cimumstance is also adverse circumstance against the appellant and the person with whom the deceased was seen last time alive is requhed to oh‘er explanation relating to the fact that when he parted the company of the deceased. i deceased was seen last time alive in the company of the u f away and who has caused injury to the deceased. circumstances .are. considered together then the only hypothesis would ‘be possible that the appellant was'a person who had committed the offence of murder of the deceased and except the appellant nobody has committed the murder of the deceased. 10 19. After appreciation of the evidence available on record, the leamed First Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. 20. In the present case, the circumstantial evidence adduced against the appellant is sumcient for drawing an inference that the appellant has committed murder of the deceased. The conviction of the appellant is based on legal and clinching evidence sustainable under law. ‘ u g 21. 0n close scrutiny of the evidence, we do not nnd any illegality or infirmity in the judgment impugned. The appeal is devoid of men'fs and is liable to be dismissed and is accordingly a sunita w dismissed. Sdl— Sd# R.L. Jhanwar Tr. Sharma Judge