HIGHCOURT OF CHHATTISGARH AT BILASPUR Criminal Aooeal No. 482 of 1904 CORAM: HON'BLE MR.T.P.SHARMA Ss HON'BLE MR. N.K. Agarwal, JJ. APPELLANT RESPONDENT Mohammad Siraj alias Sirajul son of Abdul Rajjak, aged about 35 years, Resident of village Dewariya Kofhi, District Mujapharnagar (Bihar) Present resident Tahsil Sakti, District Bilaspur (M.P.) Versus State of Madhya Pradesh through the Police Station Sakti, Distriiyt Bilaspur (M.P.) (CRMINAL APPEAL UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- Shri Vishnu Koshta, Adv. for the appellant. Shri Ashish Shukla, Govt. Adv. for the State. JUDGMENT ( 07-4-2010) The judgm.ent ofthe Court was delivered by N.K. Agarwal, J.:- 1. The accused/appeUant has preferred this criminal appeal questioning legality and correctness of the judgment of conviction and order of sentence dated 8-4-94 passed by the Additional Sessions Judge, Sakti, Distt. Bilaspur in Sessions Trial No. 483/91 whereby and whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Bhurthu aged about 8-9 years and concealing the evidence of criminal case, convicted the appellant under Sections 302 and 201 of I.P.C. and sentenced to undergo imprisonment for life with fine of Rs. 1000/-, in defaiilt of payment of fine, to further undergo R.I. for 6 months; and to undergo R.I. for 5 years with fine of Rs. 500/-, in default of payment of fine, to further undergo R.I. for 3 months. Both the sentences are to run concurrently. 2. The prosecution case, in brief, is that attempt of carnal intercourse against the order of nature when opposed, the // : Bi. —^^ ,, ,,, , _ appellant raurdered deceased Bhurthu, a child of 8-9 years by throttling, pressing mouth and by causing head injury. On 26-9-91 at 13.20 hrs P.W. 2 Kaniram lodged merg intirnation vide Ex. P-17 in Police Station that in the evening of 25-9-91, when he went to his field, there was no person or dead body. On 26-9-91 in niorning at 7.00 a.in. when his cousin Moharsai went to the field, he found a dead body of a child aged about 8-9 years in Nali of field. Kaniram was informed by him about the above fact. Knowing it, Kaniram went to the field where Dhanirara, Bangiha, Kariya and Metwar were also present and saw the dead body of a child aged 8-9 years and near the dead body, Rs. 2 1 were lying at a distance of 10-15 meter. On the basis of Merg intimation, F.I.R. was registered vide Ex. P-22. On receiving the merg intiniation, the Investigating Officer left for the scene of occurrence. After summoning vide Ex. P-18, inquest over the dead body was conducted vide Ex. P-1. The body was looking like child of missing report No. 9/91. Father of the missing child namely Karam.aha was called and he identified the body as body of his son Shivcharan alias Bhurthu. During panchanama proceeding, injuries were found over head, neck, forehead, ear, buttock and back. According to Karamaha (P.W. 1), who lodged missing report on 25-9-91, deceased Bhurthu was playing near his house and at that time, there was no injury on his body. In the opinion of Panchas, deceased Bhurthu was murdered by throttling and by pressing of mouth. 3. In order to ascertain the cause of death, the dead body was sent for autopsy vide Ex. P-10 to Community Health Centre, Sakti. Dr. D.D. Mishra (P.W. 7) conducted autopsy vide Ex. P-9, who found following injuries over the dead body ofthe deceased:- i. Hand and leg of the deceased were stiffed. Blackish stains were present over abdomen, face including eye, mouth, nose, chin and character of stain was like that of automobile tyre tube stain. Maggots were .^ m ll present over head and face. Fluid blood was present over nostrils. NaUs were bluish. Black stains were also present over elbow area of left arm and on back and thigh. ii. Abrasion of different shapes and size extending from neck to face, eyes and chin and right shoulder. iii. Abrasion of 2cm x 2cm neck and clavicle. Similar abrasions were present over both legs. iv. All the injuries including head injury were ante- mortem caused within 18 to 24 hours by hard and blunt object. In his opinion cause of death was syncope due to injury over brain and probably accidental in nature. In reply to query made by the Investigating Officer vide Ex. P-11, Dr. D.D. Mishra (P.W. 7) opined vide Ex. P-12 that injuries found on face and mouth could be due to throttling and pressing of mouth. In reply to query vide Ex. P-13, he opined vide Ex. P-14 that the injuries found over the body may be homicidal in nature. 4. Rupees 21/- were seized from the spot vide Ex. P-2. Accused was taken into custody. He made confessional statement under Section 27 of the Evidence Act of mud stained clothes and cycle vide Ex. P-3. Same were recovered at the instance of the accused vide Ex. P-4 and P-5. The accused was arrested vide Ex. P-27. Spot map was prepared vide Ex. P-6. Panchnama of place of occunrence was also prepared vide Ex. P-21. Statement of witnesses under Section 161 ofCode ofCriminal Procedure, 1973 (briefly, the Code'.) was recorded. The accused was identified vide Ex. P-8 by P.W. 4 Chasiyaram, Chherka Ram and Rajonau Ram. Viscera of the accused was handed over to Investigating officer vide Ex. P-19. Seized articles were sent to the Forensic Science Laboratory, Sagar for chemical exEunmation vide Ex. P-20. 5. After completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Sakti who in ^•K^ ' '"T'^i:^' tum committed the case to the Court of Sessions, Bilaspur from where the Additional Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of appeUant, prosecution examined as many as 13 witnesses. Statement of the accused was also recorded under Section 313 of the Code wherein he denied his involvement in the alleged offence and claimed innocence and false implication. Specific defence of alibi that on the date of incident he was not present in the village and he had gone to Bihar, has been taken. 7. After affording opportunity of hearing to the parties, learned additional Sessions Judge has convicted and sentenced fhe appellant as aforementioned. 8. We have heard Shri Vishnu Koshta, learned coz-insel for the appellant and Shri Ashish Shukla, learned Govt. Advocate, for the State/respondent and perused the judgment impugned and fhe record of the Court below. 9. Learned counsel for the appellant vehemently argued fhat conviction of the appellant is based on last seen theory. In the case of last seen theory, the prosecution is required to prove that soon before the death of deceased, the deceased was seen last time alive with the appellant and soon after he was found dead and there was no considerable time gap between last seen with the appellant and recovery of dead body or death of the deceased and tinie gap was so small that possibility of any other person being with the deceased could completely be ruled out. He would further contend that as per the opinion of the doctor, the death is not homicidal but is accidental in nature. It was further submitted that the identification parade conducted by the Naib Tehsildar was not proper. The prosecution has not adduced any evidence that fhe appellant is the only person last seen with the deceased when the deceased was aUve. Therefore, if the evidence of the prosecution is admitted at its face value, then the same would not be stifficient for drawing inference that the present appellant is the person who has caused homicidal death amounting to murder of the deceased. 10. On the other hand, learned State Counsel supported the impugned judgment and argued that in the present case, the prosecution has proved circuinstances sufficient for conviction of the appellant. He further argued that Ghasiyaram (P.W. 4) and Sonauram. (P.W. 5) have deposed in their evidence that they have seen the deceased alive last time along with the appellant. Ghasiyaram (P.W. 4) has deposed in his evidence that the appellant along with the deceased Bhurfhu came to his Chana Murra shop and purchased Chana Murra, gave it to Bhurthu and both walked towards West. P.W. 5 Sonauram has deposed that the appellant along wifh deceased Bhurthu came to his Pan shop at about 5 to 6 p.m. and both prdceeded by bicycle towards residential area of Bhurthu. It was further submitted that Ghasiyaram (P.W. 4) and Sonauram (P.W. 5) have identified fhe appellant/accused in the Court and during identilication parade. It was furfher argued that the appellant has taken false defence of alibi that he was not present on the date of incident in the village or near the place of incident. It was further argued that during cross- examination of Vipin Kishore Pahwa (P.W. 6) false defence through suggestion has been taken by the appellant accused that on the date and time of incident, he was working at the site but Vipin Kishore Pahwa (P.W. 6) i.e. appellant's employer specifically denied the said suggestion and deposed that Wednesday i.e. the date of incident was holiday and these circumstances are sufficient to establish that the appeUant is' the person who has committed the aforesaid offence. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the material available on record. 12. In the present case, looking to the injuries found on the body of the deceased, the location of the place where the , ,; r'R'^r-3 dead body was found which is not the road side, homicidal death as a result of ante mortem injuries of deceased Bhurthu could not be substantially disputed. Merely because of signs of friction it cannot be said that injunes are accidental in nature, in the light of the fact that the said signs could appear by cycle tyre. The combined effect of autopsy report Ex. P-10, replies to the queries given by the doctor vide Ex. P-12 and P-14, evidence of Dr. D.D. Mishra (P.W. 7) coupled with the nature of injuries found on the body of the deceased would clearly establish that fhe death of the deceased was homicidal in nature. 13. In the present case, the prosecution has adduced evidence of Ghasiyaram (P.W. 4) and Sonauram (P.W. 5) as evidence of last seen and identification, Kheekrani (P.W. 3) as evidence of disclosure statement made by the accused, and evidence of B.S. Parihar, Investigating officer (P.W. 13) who has recorded F.I.R. 14. For resting the conviction solely based on the circuinstantial evidence, the law laid down by the Apex Court in the matter of Dhananjay Chhatterjee Vs. State of W.B.1 is that "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 circurastances 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 innoGence 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." ' (1994) 2 SCC 220 SS^SSi •Tf^- /?' 15. In case of Both Raj alias Bodha and others Vs. State of Jammu and Kashmir2, the Apex 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 circurastances from which the conclusion of guilt is to be drawn should be fu.Uy estabUshed. The circumstances concemed 'm.ust' or 'should' and not 'may' be established; (2)the facts so estabUshed should be consistent only with the hypothesis of fhe guilt of fhe 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 (5) there must be a chain of evidence so complete as not to leave any reasonable ground for fhe 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." 16. Purpose of Section 313 of the Code is set out in its opening words - for the purpose of enabling the accused to explain any circumstance appearing in the evidence against him. In Hate Singh, Bhagat Singh Vs. State of Madhya Pradesh3, it has been laid down by Bose, J that the statements of accused persons recorded ynder Section 313 of the Code 'are among the most important matters to be considered at the trial'. It was pointed out that the statements of the accused recorded by the committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box and that 2AIR2002SC3164 'AIR. 1953 SC 468 :! <•.•• they have to be received in evidence and treated as evidence and be duly considered at the trial. This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there. 17. The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guUt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. 18. The Apex Court in the case of State of Goa v. Sanjay Thakran and another and another connected appeal held that in case of last seen together the proof of last seen together would be relevant if the prosecution establishes that in the intervening period there was no possibility of any other person meeting or approaching the deceased at the place of incident or before fhe comraission of the crirae. Para 34 of the said judgment reads thus:- "34. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found togefher alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and fhe detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because fhe time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket fonnula for the duration of time gap in this regard and it would depend upon <(2007) 3 SCC 755 the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being fhe author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circi-tmstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the Ught of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occiirred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider finie gap would not affect the prosecution case." 19. The Apex Court in the case of Sahadevan alias Sagadevan v. State represented by Inspector of Police, Chennai5 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 partingcompany with Vadivelu. Here we must notice that as discussed hereinabove, the prosecution has established the fact that Vadivelu was seen in the company of the appellants from 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 '(2003) 1 SCC 534 iii iat 10 person who is last found in the company of another, if later found missing, fhen the person with whom he was last found has to explain the circumstances in which they parted company. In the instant case fhe appellants have failed to discharge this onus. In their statement under Section 313 Cr.P.C. they have not taken any specific stand whatsoever. In the evidence of PW-25, it is elicited that on 5.3.1985 in the afternoon when Vadivelu was produced before the said witness, he after interrogation allowed Vadivelu to go, but then it is found from his evidence that he instructed A-l to keep a watch over Vadivelu. In such circumstances, it was incumbent upon A-l to have explained to the coi.irt 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 very day at about 5 p.m., Vadivelu was brought to the house of PW-1 by the appellants which was seen by PW-5. This part of the evidence of PW-5 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 p.m. Vadivelu was stiU 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 inissing 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 theu- statement under Section 313 Cr.P.G., it is seen from the evidence of PWs.l 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 from the Police Station when he was allowed to sleep in the verandah of the Police Station. This explanation given by A-1 to PW- 1 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-1 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 11 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." 20. By applying the aforesaid proposition of law in the facts and circumstances of the present case, it is clear that the conviction of the appellant is mainly based on evidence of Ghasiyaram (P.W. 4), Sonauram (P.W. 5), Vipin Kishore Pahwa (P.W. 5) and Kapur Sharma (P.W. 12). A bare perusal of the above statements would reveal that on 25-9-91 in the evening, the appellant was last seen with deceased Bhurthu, a child of 8 to 9 yeeirs. Sonauram (P.W. 5) has seen them going together on bicycle. As per Kararaaha (P.W. 1), said child was missing since 25-9-91 and was not found till 26-9- 91 at 11.50 am. As per Kaniram (P.W. 2), the dead body of the deceased was found in the Nali of his field on 26-9-91 at about 7.00 am. Ghasiyaram (P.W. 4) and Sonauram (P.W. 5) have identified the appeUant during identification parade and also in the Court. Vipin Kishore Pahwa (P.W. 6) has deposed that the appeUant was working with hira as mason and was employed in construction of house of Tekchand Jaiswal situated at Station Road, Sakti. The appellant met him at about 4 to 5 a.m. and informed him that his father had coine to inform him about illness of his wtfe and he has to go to Bihar. Then he (Vipin Kumar Pahwa) said to appellant to employ the workers on the work and come to him at Raigarh by Utkal Express and thereafter the appellant should go after getting money. Then this witness went by passenger to Raigarh at about 11.00 am. The accused on the sarrie day came to Raigarh at about 2.30 p.m. and after getting money went to his house at Mujaffarpur in the evening at about 5 to 5.30 p.m. He has further deposed that while talking with him, the appellant was much depressed. He denied the suggestion given on behalf of the appellant th.at in the evening of 25th, the appellant was working at ,,»**.' " ^w€S i •<»•'' '" ^ 12 work site from 4.00 p.m. to 11.00 p.m. Dr. D.D. Mishra (P.W. 7) has categorically opined in para 14 of his statement that the injuries found in the brain is sufficient to cause death, the death may be due to head injury and also opined that the death may be homicidal. The appellant has not offered any explanation relating to parting of the company and regarding specific defence of alibi taken that he was not present at the time of incident in the place of incident