HIGH COURT OF CHHATTISGARH BILASPUR la Cr Appeal No 77/1996 {DB HON BLE $HRI SUNIL KUMAR SINHA, J & f HON’BLE SHRI RADHE SHYAM SHARMA, J. IAPPELLANT Ramjeevan S/o Mahkam Sai, aged about 27 years, resident of village Ghaurasad Police Station Pharsabahar, District Raigarh (MP) (Now CG) ‘V‘ Versus State of Madhya Pradesh, through District Magistrate, Raigarh RESPONDENT r CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE Appearance shri Aditya Tiwarl Advocate for the appellant ShriRavmdra Agrawal, Panel Lawyer for the State. ORAL JUDGMENT (3.11.2011) rat’s iSunIl Kumar Sinha, J. E(1) This appeal is directed against the judgment dated 42.12.1995, passed in S.T. No‘174/1995 by the Additional iSessions Judge Jashpur Nagar District Raigarh Bythe impugned {Judgment the appellant has been convrcted under Sections 302 tand 201 IPC and sentenced to undergo imprisonment for life and l R‘l. for 3 years With fine of Rs.3,000/- respectively, wrth a further direction to run the sentences concurrently. i; It 2 CRA 77/1996 (2) The facts, briefly stated, are as under : The dead body of deceased- Tuleshwar was found in hanging condition in the forest on 10.6.1995. Merg intimation (Ex. P11) was lodged by Kodaram (PW—9) on 10.6.1995 at about 11.00 am. The prosecution came with the case that the deceased was taken by the appellant and other accused persons for watching a video show in the evening of 9.6.1995 and thereafter, the deceased did not return to the house, therefore‘Fthe accused persons were responsible for the death of the deceased, which Was found to be homicidal death on account of 'postmmtem examination conducted by Dr. G.S.Painkara (PW-12), who gave the postmortem report Ex. P/1 1. The Sessions Judge, relying on the testimony of Chaspabai (PW-5, aunt of the deceased), held that the deceased was lastly seen alive with the appeilant, therefore, on the basis of last seen together, the appellant was liable for punishment for the homicidal death of the deceased. The appellant, therefore, was convicted under the aforementioned sections of the IPC. However, the other 3 accused persons namely-Mahkam Sal (A-1), Saigkam Sai (A-2) and Khutaruram @ Rajkumar (A-4) were acquittediiof the charges framed under Sections 302/34 and 201 IPC. (3) Shri Aditya Tiwari, learned counsel appearing on behalf of the appellant argued that there is no eye-witness to the incident and the case of the prosecution is based on circumstantial evidence; exceptsthe alleged circumstance of last seen together, there is not other incriminating circumstance against the appellant; there is a long time gap between the deceased allegedly seen alive in the company of the appellant andthe dead body seen, and a l; J 3 CRA 77/1996 possibility of any third person coming in between, cannqtabe fully ruled out, therefore,'the appeuant cannot be convicted on the basis of above set of circumstantial evidence. (4) On the other hand, Shri Ravindra Agrawal, learned Panel Lawyer appearing on behalf of the State opposed these arguments and supported the judgment passed by the Sessions Court. (5; ‘ We have heard learned counsel for the parties at length and have also perused the records of the Sessions Case. (6) ‘ ln Bodh‘Ral alias Bodha and omers Vs, State 'of gamma 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 : the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘musf’ or ‘should’ and not “may’ be established; the facts so established should be consistent only widt 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; the circumstances should be of a conclusive nature and tendency; they should exclude every possible hypothesis except theone to be proved; and 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 1) 2) 3) 4) 5) CRA 77/1996 must show that in all human probabiiity the“act must have been done by the accused. About the last seen theory, the Supreme Court hetd that the last i seen theory comes into play where the time gap between the point j of time when the accused and the deceased were seen last alive t 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 accAused when there is a long gap and possibilityuof other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen ogether, it would be hazardous to come to a conclusion of a guilt in those cases. (7) Admittedly, there is no-eye-witness to the incident and case of the prosecution is based on circumstantial evidence. The solitary circumstance, which the prosecution has relied in this case, ls the circumstance of last seen together. Chaspa‘Bai (PW-5) is the aunt of the deceased. She deposed that one day prior to the date of recovery of the dead body, in the evening, the appellant came to the house of deceased- Tuleshwar and took him for watching a video show in the village. Other persons of thewillage were also with him. She could not tell the names of other persons. When deceased Tuleshwar did not return in the night, they made a search in the morning. ln the evening they could come to know that ' a dead body has been found and ultimately, when they went to see the dead body, they found, it was the dead body of deceased- Tuleshwar. 5cm, // ; t g ; n 5 CRA 77/1996 (8) We gather from the records that the dead body of the deceased was seen for the first time at about 7.00 am on $10.6.1995, whereas, the deceased was allegedly seen in the fcompany of the appeliant and other vinagers in the evening of 9.6.1995. Therefore, the time gap between the point of time when the appellant and the deceased were seen last alive and when the ideceased was found dead is long and a possibility of any person other than the appellanti'accused being author of crime, cannot be fully ruled out. Moreover, it is not a case in which the deceased wasAseen in the exclusive company of the appellant, because lt is the case of the prosecution that the deceased had gone to see video show along with many villagers (allegedly other accused persons, who could not be identified and acquitted) and appellant was one of them. (9) The Supreme Court said that in such cases, it would be dimoult 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. We are of the view that in absence of any other positive evidence to conclude that the appellant/accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in the instant case. (10) For the foregoing reasons, we are unable to sustain the conviction of the appellant on the above solitary circumstance. ‘ We are of the view that the learned Sessions Judge fell into error by convicting the appellant under Sections 302/201 .IPC on the i above set of circumstantial evidence. 6 CRA 77/1996 (11) The appeal fiied by the appeliant, therefore. is allowgd. The conviction and sentence awarded to the appellant under Sections 302/201 IPC are set-aside. The appenant is acquitted of the charges framed against him. (12) It is stated that the appellant is on bail. His ball bonds are cancelled and surety stands discharged. Sdl- > / Shhil Kumar Sinha s; - Rs. Shawna JUdge J/ SUnlta £ a