HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH ) CORAM: HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.829 of 1990 APPELLANTS: Ram Singh and another Versus RESPONDENT: The State of M.P. (now C.G.) ; V . JUDGMENT FOR CONSIDERATION S T. P. Judge 1 4—1 2- HON’BLE MR. JUSTICE R.L. JHANWAR W $6‘ g3) / ost for pronouncement of iudqment on 14th Decembe&2&J Sdl- T. P. Sharma Judge 1 4-1 2-2009 w“ §o§&/ \ g d/- Sharma 209 0 P HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: I HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.L. JHANWAR, JJ. G Criminal AQQeaI No.829 of 1990 I APPELLANTS/: 1. Ram Singh aged 27 years, son of Shri § (Accused persons) Dhan Singh, Gond, ‘ (In Jail) 2. Ram Deen aged about 30 years, sdn of Samaylal Gond, Both r/o village Gidmudi, P.S. Khadgawan, Distt. Sarguja M.P. (now C.G.) ‘* ‘ Versus tRESPONDENT: The State of M.P. (now C.G.) {Criminal anpeal undeLSection 374 of the Code of Criminal Procedure, 1973} Present: Mr. N.P. Koshta, counsel for the appellants. Mr. Ravindra Agrawal, Panel Lawyer for the State/respondent. JUDGMENT (14m December, 2009) The following iudgment of the Court was passed by T.P. Sharma, J: - 1. Mr. N.P. Koshta, learned counsel for the appellants, pleads no instructions from the appetlants. 2. Challenge in this appeal is to the judgment of conviction & order of sentence dated 9-8-90 passed by the Additional Sessions Judge, Manendragarh, in Sessions Trial No.15/89, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of offence under Section 302 read with Section 34 of the 9l.P.C., sentenced each ofthem to undergo imprisonment for life. 3. Judgment is impugned on the ground that without any evidence, the Additional Sessions Judge has convicted & sentenced the appellants as aforementioned and thereby committed illegality. v’ I} :-- i vmk 4. Case of the prosecution, in brief, is that on 30-3-88‘Amar Singh (since deceased) was last seen alive with the appellants before his death. Dead body of Amar Singh was found in the pond. The matter was informed to Police Station Khadgawan. The police recqorded merg intimation vide Ex.P—9 and also registered F.l.R. vide Ex.P-11. After summoning the witnesses vide Ex.P-1, inquest over the dead body of the deceased was prepared vide Ex.P-2. Clothes were seized vide EXP-3. The dead body was sent for autopsy to the Assistant Surgeon, Community Health Centre, Chirmiri vide Ex.P—8A and autopsy was conduCted by Dr. S.N. Suhane (PW-19) vide Ex.P-8 who found bleeding from nose, abrasions over left arm, left elbow joint & right shoulder. internal organs were congested mud wooden piece and pieces of leaves were found in trachea case of death was asphyxra and the death was ‘homicrdal in nature Accused Ram Singh was taken into custody, he made discloser statement of batmga, one long wooden object used for agricultural purpose, and the same was recovered at the instance of Ram?Singh Vide Ex.P-5. One wooden chaukhat was also seized from accused Ram Singh vide Ex.P—6. Statements of the witnesses were recorded under Section 161 of the CrPC and after completion of investigation charge sheet was fled before the Court of Judic1al Magistrate First Class Manendragarh who in turn committed the case to the Court of Sessmns, Ambikapur, from where the Additional Sessions Judge, Manendragarh received the case on transfer for trial. . ln order to prove the‘guilt of the accused persons, the prosecution has examined as many as twenty one witnesses. The accused persons were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication. u . After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellants as aforementioned and acquitted co—accused Narayan Singh. . Mr. N.P. Koshta, Iearned counsel for the appellants, epleads no instructions from the appellants. The appellants are on bail and the appeal is pending since 1990. In absence of any argument on behalf of .thefappellants, we are not inclined to dismiss the appeal for want of prosecution and we are deciding the appeal on merits. . We Qaye heard learned Panel Lawyer appearing on behalf of the State/ respondent, perused the judgment impugned and record of the trial Court. t . Learned State counsel opposed the appeal and argued that the prosecution has proved this case beyond all reasonable doubts and the acoused/appellants are the persons who have committed the homicidal death of Amar Singh amounting to murder. The circumstances proved against the appellants are sumcient for drawing irresistible conclusion that the appellants are the persons who have committed the aforesaid offence and except the appellants, no other person has committed the aforesaid offence. v“- 9 10. in order to appreciate the contentions of the State/respondent, we have examined the evidence available on record. 11.ln the present case, according to the case of the prosecution and the defence taken by the accused/appellants, the death of Amar Singh is not G disputed, otherwise, proved by the witnesses who have seen the dead body in the pond, the evidence of Dr. S.N. Suhane (PW-19) and the autopsy report Ex.P—8 in which Dr. S.N. Suhane (PW-19) has categorically deposed that blood was coming from the nose of the ‘ 4 deceased, pieces of leaves, piece of wood & mud were found in trachea, internal organs were congested, the death was as a resuit of asphyxia, the death was homicidal in nature and certain injuries were also found over hands & shoulders of the deceased These are suffcrent for drawrng Inference that Amar Smgh died as a result of homrcudal death 12 As regards complicrty of the appellants In the crime In question the fact that the dead body of the deceased was found in the pond In mud was not disputed and othen/vrse proved by the evidence of Sumer Singh (PW- 1) & Lala Smgh (PW 6) Convrction of the appellants rests upon the theory of last seen and drscloser statements of the weapons used at the time of commission of the offence. Evidence of discloser of facts and last seen theory‘are weak type of evidence and without corroboration, conviction would not safe, but once it is corroborated from the material facts same would be sufficient for warranting conviction. 13.Parmeshwar Lal Chauhan (PW-3) has deposed in his evidence that before the death of Amar Singh, he has seen Ram Singh in the house of Shivmangal, Ram Singh was in the state of intoxication and one another person Ramdin was also present, he was also in the state of intoxication. Lal Singh (PW-6) has deposed that Amar Singh & Ramdin came to his house and they went towards Lakdapara, the in-la‘w’s house of Amar Singh, thereafter, he has not seen Amar Singh alive and heard that the dead body of Amar Singh was found in the pond. Sukhnath Singh (PW- ' 7) has also deposed that Ramdin & Ram Singh came to his house along , with Amar Singh and aftertsitting for an hour they consumed liquor and went away. Shivmangal Singh (PW-8) has supported the evidence of Sukhnath Singh (PW-7) and he has stated that second day he came to know that Amar Singh was murdered. Ram Prasad (PW-9) has also corroborated the evidence of Sukhnath Singh (PW-7). Presence of both we O the accused w1th Amar Singh Is also supported by Maankunwar (PW-12) & Ramvatl (PW_13) 14.The prosecution has also adduced the evidence of discloser statement‘of a1 accused Ram Singh. According to the case of the prosecution and the evidence adduced on behalf of the prosecution, one batinga, wooden object used for agricultural purpose, was recovered from accused Ram Singhiat his instance vide Ex.P-5. Batinga is a common article/object found in the house of agriculturists and it is used for transporting/carrying out the bundles of agriculturaJ crop. Only recovery of Batinga at the instancgof appellant Ram Singh is of no use in the present case and in absence of any other connecting evidence, it cannot be presumed that the injuries found over the body of Amar Singh would have been caused by the use of such heavy article Batinga. 1§.On close scrutiny of the evidence relating to last seen, it is clear both‘the accused/appellants & Amar Singh went to the houses of different persons, they consumed liquor in excess quantity, they were under mtOXIcation and went towards the house of m laws of Amar Singh thereafter Amar Singh was not found alive According to the ewdence of Sumer‘Singh (PW-1), he has seen the dead body of Amar Singh in the morning. According‘to the evidence of other witnesses of last seen, both the accused persons & the deceased were last seen alive at about 3-4 p.m. According to the spot map Ex.P-7, the place where the dead body was found is not far away from the residence of other witnesses who have last seen the deceasedalive with the appellants. 'lt appears that the alleged pond is surrounded by the houses of witnesses. ln case of incident taken place at about 4-5 p.m., it must have been seen by the persons residing near the pond which is of common use for taking water & bath and accessible to all, or at least the dead body would have been @ f 1 ‘ 6 @: seen by the persons reSIdIng near the VICInlty, but for the first time the dead body was seen In the morning after about 16 hours of the alleged Iast seen evidence. 16.ln case of conviction on the basis of Iast seen theory, the prosecution is required to prove strictly the fact that there was no unreasonabie time 1 gap between the last seen evidence and the death of the person or cornmission of the offence, but in the present case, the time gap is of about 16 hours and the place where the dead body was found is not the lonjely place, same is surrounded by the residence of other persons and the po‘nd is of common use for the villagers, who used to take’water and bath from the said pond. If the evidence of the witnesses relating to Iast seen that they have Iast seen the deceased alive with the appellants at about 3-4_ p.m. and thereafter, they saw the dead body on second day morning near their residence is admitted as a gospel truth, even then, in absence of any corroborative evidence, it is difficult to infer that the appellants are the persons who have caused the homicidal death of the G deceased. 17.0n close scrutiny, we are of the view that the evidence adduced o_n behalf of the prosecution is not sufficient for drawing inference that on the basis of last seen theory, conviction would be pdssible in the present case. Suspicion howsoever grave cannot take the place of evidence. The Additional Sessions Judge after considering the evidence of the prosecution has convicted & sentenced the appellants in the aforesaid manner, but has not considered the most material aspect of the case i.e. the time gap between the deceased Iast seen alive with the accused persons and the dead body found in the pond, and thereby committed illegality. ln our considered view, conviction & sentence imposed upon the appellants are not sustainable under the law. ’~.‘:\ @ 18.Consequently, the appeal is allowed. Conviction & sentence imposed upon the appellants under Section 302 read with Section of the l.P.C. are hereby set aside. The appellants are on bail, their bail bonds are discharged and they need not surrender before the Court. Sd/- Sd/- ‘ w 7 “Al re T. P. Sharma i ‘ u R.L. Jhanwar Judge Judge So‘ma