Comm: Hon'b!e Mr.T.P.Shar'rna & Hon'ble Mr.R.L.Jhanwar-, JJ. Criminal Aggeal No.252 of 2001 Nanka @ Bhagwandas Versus Sfafe of Chhaffisgarh And Criminal Aggal No.157 of 2001 Munna alias Shivjal Versus Sfafe of ChhaTTisgurh J\\ UDGMENT FOR CONSIDERATION R Sd/_ 0 T. P. Sharma Judge Hon'ble Mr.R.L.Jhanwar W R.L. Jhanwar Judge w -1-2010 7 § f Pas? for- J‘udgmen‘r on : 22-1—2010 J \ ‘ Sd/- ? T. P. Sharma Judge ‘ / HIGH COURT OF CHHATTISGARH AT BILASPUR (APPEALS UNDER $ECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Presen’r; Mr.V.K.Pandey, counsel for appellanT-Nanka @ Bhagwandas. MrRakesh Pandey, counsel for appellan’r Munna alias Shivjol. Mr.Rakesh Jha, Depu’ry Governmen‘l Advocate for fhe Slate/respondent. Comm: Hon’ble Mr.T.P.5HARMA & Hon’ble Mr.R.L.JHANWAR, JJ'. Criminal Aggeal No.252 of 2001 APPELLANT Nanka @ Bhagwundas s/o Jhuman (In Jail) Vadav, age abom 31 years, r/o Village Ranpur'kala, P.$. Jain'agar' Dis’rT‘Surguja, Chhtmisgarh. Versus RESPONDENT Sfafe of Chha’r’risgur‘h Through Police > Sfa’rion Jainagar, DisttSurguja. Criminul Agged No.157 of 2001 APPELLANT (In Jail) Munna ulias Shivjal, Son of Lal Man Vadav, aged abouf 32 yrs, Residen'r of Village Runpur' Kala, ‘P.$.Jainagar, DistiSurguja (6.6.) Versus REsPONDENT S’ra‘le of Chha‘tl‘isgarh, Through Police Sfa’rion, Jainagar Distric’r Surguja (C.G.) JUDGMENT (Delivered on 22“ January, 2010) The judgmem‘ of The Court was delivered by T.P.$harma, J's— 1. Criminal Appeal No. 252/2001 filed by appeHan‘r-Nanka @ Bhagwandas and Criminal Appeal No.157/2001 filed by appellant—Munna alias Shivjal ar-e arising ou1’ of The judgmen’r of convic‘rion & order of sem‘ence dafed 2.2.2001 passed by ’rhe Additional Sessions Judge, Surajpur, in Sessions Trial No.93/99, Therefore, They are being disposed of by This common judgmenT. The aforesaid criminal appeals are direcTed againsT The judgmenT of convicTion & order of senTence daTed 2.2.2001 passed by The AddiTional Sessions Judge, Surajpur, in Sessions Trial No.93/99. whereby 6i whereunder learned AddiTional Sessions Judge afTer holding The appellanTs guilTy for causing homicidal deaTh of Bhuneshwar amounTing To murder, convicTed Them under SecTion 302 of The Indian Penal Code and each of Them have senTenced To undergo imprisonmenT for life and To pay a fine Rs.1000/-, in, defauIT of paymenT of fine To furTher undergo rigorous imprisonmenT for 5 monThs. 3. JudgmenT is impugned on The ground ThaT wiThouT There being any credible and clinching evidence relaTing To lasT seen, The CourT below has convicTed and senTenced The appellanTs and Thereby commiTTed illegaliTy. 4. Case of The prosecuTion, in brief, is ThaT on faTeful day of 31.7.98 aT aboUT 6 p.m,, The deceased Bhuneshwar, Fire WaTcher (employee of The foresT) was presenT near The foresT nursery, The appellanTs were coming by cycle wiTh foresT producTs i.e. Sara/Wood and axe from foresT. The deceased sTopped Them, appellanT Munna assaulTed The deceased by axe over his neck, The deceased fell down. AppellanT Nanka also assaulTed The deceased over his legs by axe. The deceased died on The spoT. The FIR. was lodged Vide Ex.P/1 by Bal Bhagwan Yadav (PW-1). Merg inTimaTion was recorded vide EXP/15. InvesTigaTing officer proceeded for The scene of occurrence. p 3 / Af’rer summoning ’rhe wifnesses vide Ex.P/4, inquesf over The dead body of fhe deceased Bhuneshwar' was prepared vide EXP/5. Dead body was senT for autopsy ‘ro Communi'ry Heah‘h Cenfre, Vishrampur vide EXP/12A where aufopsy was conduc’red by Dr.Pawan Kumar Sharma (PW-11) vide EXP/12 and found The following injuries:- i) Incised wound over back side of The neck of 6 cm. x 2 cm. x 8 cm and infernal mussels, blood vessels, 7m cervical verfebra and spinal carf were found cut ii) Incised wound over back side of leff leg of 6 cm.‘x 3 cm. x 4 cm and blood vessels were found cu’r. iii) Incised wound over leff leg of 6 cm. x 2 cm. x 5 cm, blood vessels were found cu’r. Cuf fracfure over Tibia bone beneaTh The aforesaid injury was found iv) MulTiple incised wound was found near righT knee of 19 cm. x 10 cm. x 7 cm and blood vessels and righT Tibia were found cuT. Injuries were faTal in naTure. Cause of deaTh was shock as a resulT of excessive heamorrhage and deaTh was homicidal in naTure. 5. 3loodsTained soil and plain soil were recoVered from The spoT vide EXP/2. SpoT map was prepared by invesTigaTing officer vide Ex.P/3. Cycle of The deceased was recovered from kiTchen garden of Bhajan Ram vide EXP/6. SpoT map was also prepared by paTwari vide Ex.P/8. Accused Nanka was Taken inTo cusTody. He made disclosure sTaTemenT of axe and bloodsTained lungi vide Ex.P/9, same were seized aT The insTance of appellanT Nanka vide EXP/10. Sealed cloThes of The deceased were seized vide EXP/11. Earlier The deceased has purchased cycle vide receipT Ex.P/17 and same was recovered from Ramkishun Yadav vide Ex.P/16. Seized arTicles were senT for chemical analysis vide EXP/18. Presence of blood over bloodsTained lungi of appellanT Nanka was confirmed vide chemical reporT Ex.P/19 arld presence of human blood was confirmed by serologisT reporT vide Ex.P/ZO. 6. STa‘remen’rs of The wi‘l‘nsses were recorded under Section 161 of ’rhe Code of Criminal Procedure 1973 (in shorf ‘de’). Affer comple‘Hon of ives’riga‘rion, chage sh‘r was file efore fhe Addi’rional Chief Juicial Maistrafe, Surajpur, who in furn commiffed ’rhe case To The CourT o n r ee d b d g f Sessons Judge, Ambikapur from where lrned AddiTional Sessions Judge, Surajpur, received The case on Transfer for Trial. 7. In rder To prove The guilT of The accused/appeHanTs, The prosecuTion examined as many as 17 wiTnesses. STaTemenTs of The accused/apellanTs were recorded under SecTion 313 of The Code where They denied Te ccusTances appearing againsT Them and innocency and faise implicaTion is claimed. AppeiianT Munna has Takn efence of e/Ibl'ThaT on The daTe of incidenT he was noT presenT in The village and he had one To his in—law' g s house. AppellanT Nanka has also Taken defence of e/Ibl'ThaT on The daTe of incidenT, he was noT presenT in The village, he was prenT aT Ambikaur and aT abuT 9.30 p.m. wenT back To village Ranpurkala. 8. AfTer affording an opporTuniy of hearing To The arTies, learned ddiTional essions Judge, Surajpur has convicTed and senTenced The accused/apellanTs as aforemenTioned. p 9. We have heard Mr.V.K.Pandey an MrRakesh Pandey, counsel for The appellanTs and Mrakesh Jha, Dy.GovT.AdvocaTe for Te STaTe/respondenT and perused The judgmenT impugned as also record of The courT below. 10. Learned counsel for The aellanTs vehemenTly aued ThaT convicTion of The appellanTs is based on lasT een Theory. In case of lasT seen Theory, Te prosecuTion is required To prove ThaT soon before The deaTh o Te deceased, Th decease was en lasT Time alive wiTh The appellanTs and soon afTer he was found dea and There was no considerable Time gap beTween lasT seen wiTh The appellanTs’ and recovery of dead body or deaTh of The deceased and Time gap was so small ThaT possibiliTy of any oTher ‘ person being wiTh The deceased could compleTely be ruled ouT. Learned e , Co i ea o p h irm e d se p o he T p A S d R h pp rg s h f h e d se d counsel further argued ’rha’r fhe prosecu‘rion has no’r adduced evidence of eyewi‘l‘nesses. According fo fhe case of fhe prosecufion, The accused persons wer'e coming Towards foresf along wifh foresf product i.e. saw/Wood in cycle and They were hoiding axe. The deceased was also coming Towards foresT. There was some alTercaTionrbeTween The accused persons and The deceased and afTer someTime The deceased was found dead as a resulT of injuries. Only These wiTnesses are noT sufficienT To connecT The appeIIanTs in The crime in quesTion. The deceased was having enmiTy wiTh so many persons and The place of incidenT is noT Ionely place. The prosecuTion has noT adduced any evidence ThaT The appellanTs are The only persons seen lasT Time wiTh The deceased when The deceased was alive, Therefore, if The evidence of The prosecuTion is admiTTed‘ in iTs face value, Then same would noT be sufficienT for draWing inference ThaT The presenT appellanTs are The persons who have caused homicidal deaTh amounTing To murder of The deceased. 11. Learned counsel placed reliance in The case of HaTTI' 'Singh v. STaTe of Haryana‘ in which The Apex CourT has held ThaT evidence of lasT seen by iTself is noT of much significance. IT may, however, provide for a link in The chain and unless The Time gap beTween The deceased of having been lasT seen in The company of The accused persons and The murder is proximaTe, iT is difficulT To prove The guilT of The accused only on ThaT basis. Learned counsel furTher placed reliance in The case of STaTe of Goa v. sanjay Thakran and anoTher and anoTher connecTed appealz in which The Apex CourT has held ThaT in case of convicTion based on circumsTanTial evidence, The prosecuTion is required To prove compleTe chain of circumsTances incapable of explanaTion of any oTher hypoThesis Than ThaT of The guilT of The accused and such evidence should noT only be consisTenT wiTh The guilT of The accused buT should be inconsisTenT wiTh The innocence. IT has also been held by The Apex CourT ThaT duraTion of Time gap beTween The .\ 1 (2007) 12 SCC 471 2 (2007) 3 SCC 755 \ accusad persons seen in The company of the deceased and The de’recTion of fhe crime would be a mafer‘ial considera'rion and if ‘rhe prosecu‘rion esfablishes fha‘r fhe said Time gap was so small ’rha‘r possibiliTy of any other person being wi’rh ’rhe deceased could comple’rely be ruled out 12.0n the other hand, learned State/respondent counsel supported the impugned judgment and argued that in the present case, the prosecution has proved circumstantial evidence sufficient for conviction of the appellants. Learned counsel further argued that Ramlakhan (PW—12) has deposed in his evidence that he has seen the deceased alive last time along with the appellants, they were discussing with the deceased. They were in possession of forest product. The deceased was employee of the forest. After sometime, dead body of the deceased was found with injuries in the same place. Learned counSel also argued that the accused persons have taken defence of e/I'bl'that they were not present on the date of incident in the village or near the place of the incident. These circumstances are sufficient to establish that the appellants are the persons who have committed the aforesaid offence. 13.In order to appreciate the arguments advanced on behalf of the parties, we have examined the material available on record. In the present caSe, homicidal death as a result of ante—mortem injuries of deceased Bhuneshwar is not substantially disputed by the appellants; otherwise established by the evidence of Dr.Pawan Kumar Sharma (PW—11) who has conducted autopsy and autopsy report vide EXP/12 which reveals that four injuries were found over body of the deceaSed and death was homicidal in nature. 14.As regards the complicity of the appellants in the crime in question, the appellant Nanka @ Bhagwandas has taken defence in his examination under Section 313 of the Code that on the date of incident he was not present in the village or near the place of the incident. He used to go to Ambikapur to sale milk. On the date of the incident, he has gone to Ambikapur at \ wwmw; ;«~:wm~ < abouf 11 a.m. ’ro sale milk. Af about 8 p.m. he purchased fodder (khali and daliya) for ca‘r‘rle and came back To his village a‘r abouf 9.30 p.m. Appellanf Munna has faken defence Tha’r fwo days prior To The incidenT he has gone fo his in-law's house of Bhuidand where he stayed and came back ’ro his village offer 5 1’0 6 days of fhe incident The accused persons have specifically Taken defence of e/Ibl', buf The prosecufion is required fo prove ifs case beyond all shadow of doubf‘ The prosecufion cannof fake fhe benefif of weakness of defence and fhe prosecufion is required fo sfand on ifs own legs. 15.In fhe presenf case, fhe prosecufion hos adduced evidence of Vijay Narayan (PW—2), evidence of losf seen Theory l2omlokhan (PW-12) and recovery of weapon and bloodsfained clofhes oT The insfance of appellanf Nanka. Bal Bhagwan Yodav (PW-1), who has lodged The F.I.R., has deposed in his evidence fhaT of abouf 6 p.m. on The dafe of incidenT, Vijay Yadav informed him fhaT Bhuneshwar has been killed, fhen he wenf To The place of incidenf along wifh ofher persons and saw injured dead body of fhe deceased and has lodged fhe F.I.R. vide Ex.P/1. DisTonce of police sTafion from The place of- incidenT is 25 kilomeTers (according To The F.I.R.). Vijay Narayan (PW-2) has deposed in his evidence ThoT on The daTe of incidenf, fhe appellanTs had gone To cuf wood from fhe foresf. The deceased Bhuneshwar was posfed as Fire Wafcher To profecT The foresf. The deceased profesfed The appellanfs, fhe appellanfs resisTed The some, Then The deceased wenf fo village Sakri. While The deceased was coming To his village and passing from The foresT, he saw ThaT The appellanfs were carrying foresf wood, of ThaT Time There was some alTercaTion befween The appellanfs and The deceased and appellanf Munna assaulfed Tile deceased by axe and wenT To his village by cycle. AppellanT Nanka also assaulTed The deceased over his legs and neck by axe and Took cycle of The deceased and wenT Towards The village. Ram Kishun (PW—4), fafher of The deceased, has deposed in his evidence ThaT on The daTe of incidenT, Vijdy Yodav came To him and informed fhaf The accused persons have killed his son Bhuneshwar‘, Then he along wiih ofher‘ villagers wenf f0 The place of incidenf where he saw 1’he injured dead body of his son. 16.Lear‘ned Addi1‘ional Sessions Judge has disbelieved The evidence of Vijay Narayan (PW-2) on The ground ThaT he has noT sTaTed The aforesaid facT ThaT he has seen The incidenT in his sTaTemenT recorded under- SecTion 161 of The Code (Ex.D/2) which has been recorded afTer 3 monThs of The incidenT. The evidence of'This wiTness cannoT be discarded only on The ground ThaT The police has recorded his sTaTemenT afTer Iong Time of The incidenT or sTaTemenT recorded by The police does noT conTenTs The facT which he has deposed in The CourT. Vijay Narayan (PW-2) has admiTTed in paragraph 2 of his evidence ThaT he is broTher of The deceased (noT real broTher buT relaTive) and according To his evidence, he has seen The incidenT, buT he has noT sTaTed The facT To The police during The course of invesTigaTion. His conducT appears To be unnaTural. EXD/Z is his police sTaTemenT which reveals ThaT he has noT seen The incidenT, buT he had heard The incidenT. AfTer considering The conducT of Vijay Narayan (PW- 2) and Ex.D/2, The CourT below has righTly rejecTed The evidence of Vijay Narayan (PW-2). 17.The convicTion of The appellanTs is solely based on The evidence of Ramlakhan (PW-12). Defence has cross-examined This wiTness aT IengTh, in which he has admiTTed Thaf disfance of nursery where The incidenT Took place is one furlong away from his house. The deceased was waTchman of nursery. He has denied The suggesTion ThaT he has quarreled wiTh Bhuneshwar on accounT of grazing The grass of nursery. He has also denied The suggesTion ThaT The deceased was having enmiTy wiTh oTher l persons. The evidence of Ramlakhan (PW—12) reveals ThaT aT The Time of evening, The appellanT Nanka was coming by cycle from The foresT, he was carrying Sara/Wood removed from The foresT, appellanT Munna is also accompanying him, The deceased Bhu’neshwar also came and There was some alTercaTion beTween boTh The parTies. Then he wenT To his house To chaln The caTTle and afTer chaining The caTTle, he came ouT from his house, aT .g Thu? fime he saw Tha‘r fhe deceased Bhuneshwar' was lying where Bhuneshwar and fhe appelkmfs were presenf a’r fhe fime of ah‘er-ca’rion. He narrawd The inciden’r To Bishunmm and Then he wenT To The place of The incidenT and saw body of deceased Bhuneshwar. This evidence has gone unchallenged in his cross—examinaTion and subsTanTialIy This is The evidence reIaTing To circumsTances of lasT seen TogeTher. 18. As held by The Apex CourT in The case of HaTTi Singh (supra), in case of if IasT seen TogeTher The evidence of lasT seen by iTself is noT of much significance. IT may, however, provide for a link in The chain. BUT unless The Time gap beTween The deceased of having been IasT seen in The company of The accused persons and The murder is proximaTe, iT is difficuiT To prove The guiIT of The accused only on ThaT basis. 19, While dealing wiTh The same quesTion, The Apex CourT in The case of $TaTe of Goa (supra) held ThaT in case of lasT seen TogeTher The proof of lasT seen TogeTher would be relevanT if The prosecuTion esTabIishes 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 The commission of The crime. 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 i‘ The accused and The deceased were found TogeTher 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 The 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 The 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 formula for The duraTion of Time gap in This regard and iT would depend upon The evidence led by The i prosecution To remove fhe possibili’ry of any ofher‘ person meefing fhe deceased in The intervening period, *hai is To say, if The prosecuTion is able To Iead such an evidence ThaT likelihood of any person oTher Than The accused, being The auThor of The crime, becomes impossible, Then The evidence of circumsTonce of lasT seen TogeTher, aIThough There is Iong duraTion of Time, can be considered as one of The circumsTances in The chain of circumsTances To prove The guilT againsT such accused persons. Hence, if The prosecuTion proves ThaT in The IighT 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 occurred or where They were lasT seen TogeTher wiTh The deceased, and There was no possibiliTy of any inTrLision To ThaT place by any Third parTy, Then a relaTiveIy wider Time gap would noT affecT The prosecuTion case." 20. While dealing wiTh The quesTion of lasT seen TogeTher, The Apex CourT in The case of Sahadevan alias Sagadevan v. STaTe represenTed by InspecTor of Police, Chennai3 has held ThaT if The prosecuTion on The basis of reliable evidence esTablishes ThaT The missing person was lasT een 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 ' parTing company 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 person who is lasT found in The company of anoTher, if laTer found missing, Then //. \ 3(2003) 1 scc 534 s 11 ’rhe per-son wi1'h whom he was lasf found has fo explain The circumsmnces in which fhey par‘red company. In The insfam‘ case The appellam‘s 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 afTer'noon 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—1 To keep a waTch over Vadivelu. In suchr circumsTances, iT was incumbenT upon A-l To have explained To The courT in whaT circumsTances They parTed company. He has noT given any expIanaTion in This regard. On The conTrar‘y, The prosecuTion has esTabIished The facT ThaT on The ver'y day aT abouT 5 p.m., Vadivelu was broughT To The hou3e of PW—l by The appellanTs which was Seen by PW-5. This parT of The evidence of PW-5 has gone unchailenged 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 sTiIl 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 appelianTs as To Their parT in The missing of Vadivelu. AT This poinT, iT may be reievanT To noTe ThaT Though no specific sTand has been Taken by The appellanTs as To Their parTing company wiTh Vadivelu, in Their sTaTemenT under SecTion 313 Cr.P.C., iT is seen from The evidence of PWs.1 and 5 ThaT A-1 Told The said wiTnesses on The nighT inTervening beTween 5-3—1985 and 6-3-1985 ThaT Vadivelu had escaped from The Poiice 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—1 making a false sTaTemenT To PW—l can also be Taken as a circumsTance againsT The appellanTs, in esTabIishing 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 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 M duW I g! 4 \ finding of The courts below tha’r circumsfunce No.7 alsa s‘rands established against ’rhe appellants." 21.In fhe presam‘ case, according To The evidence of Ramlakhan (PW—12), he