HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 818 of 1993 Devendra Kumar ;"'Y Vs. State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA 3 ^y^ J(5>_ ' Sd/- Chief Justice Post for Judgment : ^ /09/2010 Sd/- Sunil KumarSinha Judge BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.07 11:57:23 +0530 :iN^: "'%. HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil KumarSinha.J. L.. APPELLANT RESPONDENT Criminal Appeal No. 818 of 1993 Devendra Kumar S/o Milandas Panka, Aged 19 years, R/o Sehradabri, P.S. Arjuni, District Raipur (M.P.) (Now Chhattisgarh) Versus State of Madhya Pradesh (Now State of Chhattisgarh) Through P.S. Charama, District Bastar (Criminal Appeal under Section 374 (2) of The Code ofCriminal Procedure, 1973) Appearance: Mr. Parag Kotecha, Advocate for the appellant. Mr. Akhil Mishra, Dy. Govt. Advocate forthe State. JUDGMENT (2.(.09.2010) Following judgment of the Court was delivered by Sum 1 KumarSinha,J. (1) This appeal is directed against the judgment dated 1.2.93 passed in Sessions Trial No. 375/91 by the Additional Sessions Judge, Kanker, District Bastar, whereby, the appellant has been convicted u/ss 302 & 201 IPC and sentenced to undergo ^ '5'A: "^,^ ^ .r :^.-".^ ^M^^y^ € Criminal Appeal No. 818 of 1 993 imprisonment for life and R.l. for two years with a further direction to run the sentences concurrently. (2) The facts, briefly stated, are as under:- Deceased- Nirmala was aged about 22 years. She was carrying pregnancy of about 30 weeks. The pregnancy was on account of her illicit relations with the appellant. When this was disclosed in the village she started living with the appellant as his wife. The allegations are thaton 30.6.91, the appellant took the deceased with him and thereafterthe dead body of the deceased was seen hanging from a tree near the field of Ramdayal (PW-1). The matter was reported to police station Charama and a First Information Report (Ex.-P/1) was registered. The Investigating Officer reached to the place of occurrence, gave notice (Ex.-P/2) to the Panchas and prepared inquest (Ex.-P/S) on the body of the deceased. The dead body of the deceased was sent for its post-mortem to Govt. Hospital Chprama. The post-mortemexamination was conducted by Dr.(Smt.) Tara Agrawal (PW-6). The post- mortem report is Ex.-P/11. The Autopsy Surgeon found many injuries on the neck of the deceased and opined that the deceased died on account of asphyxia caused by strangulation (throttling). Thecase of the prosecution is that the appellant took the deceased with him, caused her death by strangulation, and hanged her dead body with the tree with intention to cause disappearance of the evidence. Then on 1.7.91, he came back to his village-Sehradabri and made extra-judicial confession before his father Milandas and village-kotwar Shobhadas (PW- 4). r':- Criminal Aweal No. 818 of 1993 ^!^ (3) The learned Sessions Judge held that the appellant took the deceased with him and committed her murder which he confessed before his father Milandas and Shobhadas (PW-4) and he also made written confession addressed to S.H.O., police station Arjuni videEx.-P/9. <...- '?; ^fcuw<s (4) Mr. Parag Kotecha, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. He argued that there was no direct evidence in this matter; the case of the prosecution was based on circumstantial evidence; the prosecution mainly relied on the circumstances of last seen together and extra-judicial confession, but the same were not established; Milandas (father of the appellant) was not examined and according to Shobhadas (PW-4), the said confession was allegedly made before the police officers; the written confession was also made before the police officer; therefore, the above circumstantial evidence were not sufficient to hold the appellant guilty of the offences punishable u/ss 302 & 201 IPC. (5) On the other hand, Mr. Akhil Mishra, learned Dy. Govt. Advocate appearing on behatf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. -T^ Criminal Appeal No. 818 of 1993 (6) We have heard the learned counsel for the parties at length and have atso perused the records of the sessions case. ^ (7) Admittedly, there are no eye-witnesses in this case and the case of the prosecution is based on circumstantial evidence. Following are the main circumstances, on which, the reliance has been placed:- (i) The appellant had developed illicit relations with the deceased and the deceased was carrying pregnancy of about 30 weeks; (ii) The appellant and the deceased left the house of the appellant inthe night of 30.6.91 and thereafter the deceased was not seen alive & (iii) On 1.7.91, the appellant made extra-judicial confession before his father Milandas and village-kotwar Shobhadas (PW-4) and he also gave a writtenconfession (Ex.-P/9) to S.H.O., police station Arjuni. (8) In Dhananiov Chhatteriee -Vs- State of W.B. (1994) 2 SCC 22 the Supreme Court held "In a case based on circumstantial evidence, the circumstances from which the conclusiori of guilt is to be drawn have notonly tobe 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. rm~ ^-^'^^ '/^'\ 1 '^^^- 5 Criminal Appeal No. 818 of 1993 It needs no reminder that legally establishedcircumstances and not merely indignationof 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." ^ (9) In Bodh Rai alias Bodha and others -vs- State of Jammu 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: 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 estabtished should be consistent only with the hypothesis of the guilt of the accused, that is to say, they shoutd 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 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 Supreme Court held that the last seen theory comes into play where the timegap between the point of time when the accused and deceased were seen last alive and ^' Criminal Appeal No. 818 of 1993 when the deceased isfound 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 other 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. (10) Almost similar view was taken by the Supreme Court in State of Goa -Vs- Saniav Thakran & anr.. 2007 (4] SBR 321 by taking note ofthe decision o\ Bodh /?a/(supra). (11) So far as evidence of last seen together is concerned, the case of the prosecution is that the appellant and the deceased left the house of the appellant in the night of 30.6.91. The main witness of this fact was father of the appellant namely Milandas. Milandas has not been examined in this case. Shobhadas (PW-4) deposed that Milandas came to his house alQng with the appeltant and stated that the appellant has left the deceased somewhere. The appellant was carrying a bag. The bag was containing shirt & saree. Milandas said him to take the appellant to police station. Thereafter the appellant was taken to the police station, where the appellant made extra-judicial confession before the police. This makes it clear that, in fact, Shobhadas (PW-4) himself had not seen the deceased in Criminal Apueal No. 818 of 1993 the company of the appellant. It was told to him by the father of the appellant. Therefore, last seen was not established by the evidence of Shobhadas (PW-4). (12) According to Shobhadas (PW-4), the confession was made by the appellant before the police. About the document (Ex.-P/9), he deposed that the said document was written by the appellant before him in presence of one Rajkumar in the police station itself. This was all in his examination-in-chief. In the cross-examination, he admitted that when the appellant was taken to the police station, he was immediately hand-cuffed and after the threats of the police officers, the appellant made extra-judicial confession befpre them, He also admitted in his cross-examination that he himself had never seen the deceased in the company of the appellant. He very specifically admitted in his cross-examination that Ex.-P/9 was written bythe appellant on account of pressure and threats given by the police officers in the police station. In light of the above facts and circumstances, the evidence of extra-judiciat confession carries no weight and the same would not have been taken as an incriminating circumstance against the appellant. (13) Besides the above, we find in the evidence of prosecution witnesses that there was no dispute between the appellant and the deceased. It was father ofthe appellant who wasnot happy with the .r-"^..' "X ,/'/^^, \ ' 1 x—-^ ^ -^J'/ V. ^^^.; Criminal Appeal No, 818 of 1993 relations of the appellant with the deceased. Therefore, the motive is also lacking in this matter. (14) After going through the entire facts and circumstances of the case, we are of the view that the learned Sessions Judge completely erred in law in convicting the appellant u/ss 302 & 201 IPC and the conviction based on the above set of circumstantial evidence cannot be sustained. ^atiwt- (15) For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellant u/ss 302 & 201 IPCare set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant was taken into custodyon 4.7.91. He was throughout in jail during the trial and was directed to be released on bail by the High Court on 29.2.96. Presently he is on bail. His bail bonds are cancelled and surety stands discharged. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti