rr_^-F. HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Guota. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Criminal ARpeal No. 975 of 1991 ? ^-o^', I& Jatioorlal Vs. The State of Madhya Pradesh (Now Stateof Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICERAJEEV GUPTA . ^ „ ^ Sd/- Chief Justice Post for Judgment ,2.0/07/2010 Sd/- SunilKumarSinha Judge -z^ -Ki, dl§»,1 "^s-'^ ^:-.'^^"' HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha. J. APPELLANT RESPONDENT Criminal Appeal No. 975 of 1991 Jahoorlal S/o Dhanaram, aged 19 years, R/o Semariya, P.S. Ahiwara, District Durg (M.P.) (Now C.G.) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure. 1973) Appearance: Mr. Anand Prakash Sharma, Advocate for the appellant. Mr. Akhil Mishra, Dy. Govt. Advocate for the State. JUDGMENT (2.0.07.2010) Following judgment of the Court was delivered by Sunil Kumar Sinha^ !l (1) Appellant- Jahoorlal stands convicted u/ss 302 & 201 IPC and sentenced to undergo imprisonment for life and R.l. for 1 years, by the First Additional Sessions Judge, Durg in Sessions Trial No. 284/90 on 21.10.91. (2) The facts, br-iefly stated, are as under:- Deceased-Kishanlal was the real brother of the appellant. On 9.11.89, his dead bodyWas found at an open place near a river site in village Gadadih in highly decorhposed condition. The matterwas reported by village Kotwar- Purijishottamlal (PW-7) to the police. Panchnama was prepared. A so/apuri bed-sheet (chadar) was also found near the dead body. Sopie other artides like dhoti and cloths, a bundle of bidi, a tobaeco packet, a comb, slipper and •••:s>>- Criminal Appeal No. 975 of 1991 some loose hairs were also found below the bed-sheet. The body could be identified on account of various articles. The prosecution came with the case that the deceased and his wife Hemin Bai (PW- 9) had gone to village Aarang for purchasing oxen. The appellant met them and said that good oxen can be purchased on reasonable price from village Dhamdha. On his advised, the deceased accompanied the appellant and both left village Aarang for going to village Dhamdha. They boarded a bus. This was an incident of 18/19.10.89. As per evidence of Hemin Bai (PW-9), the deceased was missing since that date. The further case of the prosecution is that 3-4 days prior to Deepawali Festival i.e. 30.10.89, the deceased was seen in village Gadadih by Bhurwa (PW-1) and thereafter he was never seen alive. The solapuri bed- sheet was identified by the wife of the deceased to be the bed- sheet of the appellant. Later on, the appellant was taken into custody and at his instance a knife was seized. The further case of the prosecution is that the wife of the deceased visited the house of the appellant after 20-25 days of leaving him with the appellant in search of her husband, but the appellant was not found in the village. It is on all this account, the charge-sheet was filed against the appellant. The case of the prosecution was based on circumstantial evidence. Following are the circumstances, on which, the appellant was held guilty of the offence punishable u/ss 302 & 201 IPC:- (i) The appellant was of the belief that his wife died on account of witchcraft played by the deceased, therefore, he had a motive to kill the deceased; (it) 'The deceased went along with the appellant from village Aarang to village Dhamdha having Rs.5,000/- for purchastng oxen; (iii) The deceased was seen in the company of appellant and other persons irj village Gadadih by Bhurwa (PW- 1); ^. Criminal Aopeal No. 975 of 1991 (iv) A solapuri bed-sheet (chadar) was seized from a place near the dead body and was identified to be that of the deceased; (v) A knife was seized at the instance of the appellant & (vi) When the wife of the deceased visited village Semariya (where the appellant was residing), the appellant was not found there and the appellant did not inform the wife ofthe deceased that the deceased was missing, which conduct of the appellant was suspicious. (3) Mr. Anand Prakash Sharma, learned counsel appearing on behalf of the appellant, argued that none of the circumstances were conclusive; they were not fully established; even if they are taken to be established, no conclusion can be drawn that the appellant committed murder of the deceased. Therefore, the conviction was bad-in-law. (4) On the other hand, Mr. Akhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (5) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (6) In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances so established should be consistentonly with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis. TIhe circumstances should be of a conclusive nature and tendency and th hypothesis except the one to be prc^ved and chain of circumstantial ^evidence should be so complete as noj: to leave any reasonable ground ;y should exclude every possible i^A Criminal Appeal No. 975 of 1991 p 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. (7) About the last seen theory, it is well settled that the last seen theory comes into play where the time gap between the point of time when the accused and 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 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 unreasonable to come to a conclusion of guilt in those cases. (8) Hemin Bai (PW-9) deposed "That the appellant met them in village Aarang, and thereafter the appellant accompanied the deceased and one Lakhan and they boarded a bus for going to Dhamdha. According to calculation made on her evidence, it was 18 /19th October, 1989.She further deposed that her husband was carrying Rs.5,000/-. She deposed that when her husband did not return even after 20-25 days after Deepawali, she had gone to the house of the appellant in village Semariya but the appellant was not pre^ent in his house". This cannot be a circumstance of last seen together, because, according to the Rrosecution, the deceased was seeip by Bhurwa (PW-1) in village Q^dadih 4 days prior to Deepawali and ^ thereafter he was not seen alive. ...-j:;^K^^,. '.^Bi. ~% ^i ;-~c<i. ^ I 1 •t : ^i^^^^^l ^ ^ siaiiy--—^^ E1 v<^ Criminal Appeal No. 975 of 1991 Bhurwa (PW-1) deposed that 4 days prior to Deepawali, 3 persons came to his tea/betel-shop. They were asking about some cattle. Out of 3 persons, he could identify one as Tisrilal. In Para-3 of his evidence, he deposed that the accused present in the Court was also one of them. All the 3 persons stayed in his shop for VA -2 hours, and thereafter they went away. It was not established by his evidence that the 3 person, whom he could not identify, was in fact, the deceased. Therefore, the circumstance of last seen together at all was not established by the prosecution either by evidence of Hemin Bai (PW-9) or Bhurwa (PW-1). Even if the appellant was lastly seen. in the company of the deceased 4 days prior to Deepawali which was on 30.10.89 and his dead body was found on 9.11.89, the time gap between the two events was long, therefore, in absence of any positive evidence to conclude that the accused and the deceased were lastseen together, it would be hazardous to come to conclusion of guilt of the accused on the basis of above circumstance. (9) So far as circumstance of seizure of solapuri bed-sheet (chadar) from the place near the dead body is concerned, we have a doubt that such seizure, in fact, was made. Purushottamlal (PW-7) is village Kotwar. He along with the other villagers had seen the dead body and then only a report was lodged in the concerned police station. He is also a witness of Panchnan^a ofthe dead body, Ex.-P/10. In his cross-examination, hehas categorically deposed that he had n&t seen any articles near the dead body of the deceased. The identifica;tion of the bed-sheet was eonducted by the Executive Magistrate, R.K. Salhu (PW-4). He deposed that the wife of the deceased identified the bed-sheet saying that it belongs to the ''^ l:^^^-.' "•"^.^ Criininal Apueal No. 975 of 1991 appellant. How the wife of the deceased can identify the bed-sheet belonging to the appellant. It is an admitted position that the appellant and the deceased both were residing separately in two different villages. The appellant was residing in village Semariyaand the deceased was residing in village Gullu. [n our opinion, it was difficult for thewife ofthe deceased to know about the things like bed-sheet ete. used in the house of the appellant. The prosecution has not brought any other circumstance which would show that Hemin Bai (PW-9) had ever an occasion to see the bed-sheet in the possession of the appellant. Therefore, the seizure of the bed-sheet from a place near the dead body and its identification both are doubtful and the above circumstancecannot be held proved against the appellant. (10) So far as seizure of knife at the instance of the appellant is concerned, that hardly would be an incriminating circumstance in this case. It was a common knife and it was seized from an open place accessible to all and it comes in the evidence that it was badly rusted, therefore, such seizure even at the instance of the appellant was of no use for the prosecution. (11) The wife of the deceased deposed that when she went to the house of the appellant, the appellant was not present. That by itself would not be anjn^riminating circumstance on account of relevant conduct of the appellant. There may be'-many reasons for absence of the appellant at the time when the wife of the dece^sed visited his house. The other circumstance that the appellant did no( inform the wife of the deceased that the deceased was missing, was not at all established by the s°?i, •l'.^."^ Criminal Aooeal No. 975 of 1991 vatti prosecution. It does not come in the evidence that when the deceased parted from the company of the appellant and the appellant was having a knowledge that the deceased was missing. Nothing of the kind has been brought on record. (12) On due consideratio'n ofthe entire evidence led by the prosecution, we do not find that the above circumstances were fully established against the appellant and they were consistent only with the hypothesis of the guilt of the appellant. Every circumstance is explainable. The circumstances are not of conclusive nature and tendency and in all human probability, on the basis of above circumstances, it cannot be said that the appellant was the person who committed murder of the deceased. There was also not complete chain of circumstances to hold as above. (13) For the reasons stated above, we are unable to accept the finding of conviction recorded by the Sessions Court. The Sessions Court erred in law in holding that the appellant committed murder of thedeceased. The conviction awarded by the Sessions Court, therefore, cannot be sustained. (14) In the result, the appeal is allowed. The conviction and sentences awarded to the appellant are set-aside. He is acquitted of the charges framed agalnst him. It is stated that| the appellant in on bail. His bail bonds are cancelled and surety standq discharged. Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge