Wlb HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appea! No.1335/2003 v Vinod son of Birju Soum aged 25 years, residenf of village, Tefia, P.5. ?usour, Roigarh, Disfr-icf, Cinhaf‘risgarh. APPELLANT (Iri Jail) - VERSUS Sfafe o‘f Chhaffisgarh Through : P.5. Pusour, Dish‘ic'r Raigarh. S‘m‘l‘e. Division Bandu- ‘Hon'ble Shri T.P. Shanna 8‘ ‘Hon’bie Shri RLJhanwarJJ ORAL JUD9M&NT (23.03.2010) ‘Per T.P.5harma. J. 1. Challenge in This appeal is 10 'rhe judgmenf of conviction and larder- of sen‘l'ence da'red 18.7.2003, passed by “rhe Sessions Judge, a i Raigarh in 5.T.No.139/2002, whereby and whereunder, The learned ‘ Sessions Judge, affer' holding The appellam’ guil'iy for commission of lculpable homicide amounfing 1’0 murder of his wife -l(ajli and son Kanhu, convic‘l’ed The appeHanf under- Sgcfion 302, of the IPC and sentenced To undergo- imprisonmenf for life and 'l'o pay a fine of Rs.2000/—, in defaul‘r of paymen‘r of fine +0 further undergo RI. for 6 imon‘l'hs for murder of his wife-Kajii and also convicfed under Secfi’on 302 of The IPC and sentenced fa undergo imprisonment for life and +0 pay a fine of Rs.2000/-, in defauh’ of payment of fine To fur'i‘hér undergo R.I. for 6 mon‘l’hs for murder of his son - Kanhu respectively. The sentences were directed to run concurrently. i 2. The conviction is impugned on the ground that without any iota of evidence sufficient for conviction of the appellant, Court below has convicted and sentenced the appellant asaforementioned and thereby committed illegality. 3. Brief case of the prosecution is that the present appellant was having love affair with the deceased - Kajli and finally he got married with Kajli, as a result of their love, son Knnhu born. The appellant was having suspicion on the character of his wife Kajli. On Tuesday, 18.12.2001, the appellant came to the house of his mother in law Rukhnibai (PW-1), where his wife Kajli and son Konhu were residing. He took his wife and son with him and proceeded from ivillage Konpali to his village Tetla. While going to their village, on the way, the appellant along with his wife Kajli and son Kanhu stayed ‘in the house of Sahodra (maternal aunt( Mausi) of Kajli) at village ‘Chapora. There they ate meal and proceeded for village Tetla at ”about 3.00 p.m. Kajli demanded 2 broom sticks (Jhadu) from jSahodra and took the broom sticks with her. 'On second day i.e. i19.12.2001, they went to the house of Panchusar (PW-4). On 20.12.2001, dead bodies of Kajli and Kunhu were found in fhe viHage near Bahaladipa Nalo, where villagers of Te'Ho (Tardo) sow the dead bodies and went fo Police $fo‘rion. F.I.R. was registered vide Ex. P/16. Ponchusof' (PW—4) lodged fhe merg vide Ex. P/6 and Ex. P/7. The Invesfigo‘ring Officer- Ieff {or ‘Hne scene of occurrence and offer summoning fhe wimesses, inquesf over fhe dead body of Knjli and Yanhu was prepared vide Ex. P/10 and Ex. P/11. During fhe course of inquest fhe dead bodies were iden‘rified as fhe bodies of Kajii arid Kanhu. Dead bodies were sen‘r for aufopsy fo C.H.C. Pusaur vide Ex. P/14-A c‘md Ex. P/15-A, where or. RN. Mandavi (PW-9) conducfed au‘ropsy on fhe dead body of Kajli vide Ex. P/14 and found foiiowing injuries : i. Moufh and face was cyanosed ii. Liga'rure mark was found over the neck‘ iii. Abrasion was found over ‘rhe neck iv. Second and fourfh ribs of leff side were found fractured Mode of dea‘rh was asphyxia and dea'rh was homicidal in nafure. Dead body of Kanhu was examined by Dr. RN. Mandavi (PW-9 vide Ex. P/15 and found following injuries : . Three signs of pressing of neck of‘1.5 x é- “, 1.25 x 0.75 " and 2 x .5". ii. Liga‘rure mark was found over the right hand and righf’ihigh of3"x%cmand4”x-1§cm iii. 12*“ rib was found frac‘l'ured. Docfor opined ‘rhat fhe cause of death was as a result of lpressing of neck and death was homicidal in nature. ) i Spm‘ map was prepared vide Ex. P/9. Broken pieces of bangles, plain soil and*2 pieces of broom s'ricks (J'hadu) were seized from The spo‘l' vide Ex. P/12. Seaied clofhes of Kajli were seized viide Ex. P/13. Pa'rwar-i prepared spof map vide Ex. P/14. Rope found over The neck of Kajli wqs sent'for‘ examination vide Ex. P/17 and Doctor opined fhat The injuries found over- 1he neck of. Kajli may be ca‘u‘séd by The rope. Sealed ar‘ricles were sen? for chemicai examination vide Ex. P/19. Presence of blood found over fhe rope was found over arhe neck of Kajli. Sfa'remen'rs of The witnesses were recorded under becTion 161 of The Code of Criminal Procedure, 1973 (in shorf The Code). 4. AfTer compleTion of invesTigaTion, charge sheeT was filed before The Judicial MagisTraTe FirsT Class, Raigarh, who in Turn, commiTTed The case To The CourT of Sessions, where The Trial was conducted. 5. In order To prove The guil‘i' of The accused/appellant prosecuTion has examined as many as 12 wiTnesses. Accused/ appellanT was examined under SecTion 313 of The Code, in which, he e denied The circumsTances appearing againsT him, innocence and false implicaTion in crime in, quesTion was claimed. The accused has examined Premanand (DW-1)I, who deposed ThaT he was working in a Bricks FacTory aT Jammu and Kashmir and during. The course of incidenT, he along wiTh The accused/appellanT, were aT Jammu and Kashmir and when They came back from Jammu and Kashmir afTer 3 \ monThs, The accused/appellanT was arresTed by The Railway Police. \ \ and in The presenT case, prosecuTion has failed To prove The chain of‘ ' ‘ circumsTances of lasT seen Theory. There was long Time gap beTween Whe aHeged las‘r seen fheor‘y and recové‘y of fhe dead bodies and l prosecuTion has noT proved any moTive for commission of offence. l 9. On The oTher hand, learned counsel for The 5TaTe opposed The ; peTiTion and submiTTed ThaT in The presenT case, appellanT was having § suspicion upon his wife Kajli relaTing To her characTer, especially, The birTh of Kanhu wiThin 9 monfhs of Their marriage and on accounTof, , “/ \ \ 6.: Af‘rer affording opporfunify of hearing To The parfies, fhe iearned Sessions Judge has convicfed and senfenced ‘rhe oppellan? as aforementioned. 7.} We have heard learned counsel for The pan'ries a? leng'rh, perused fhexjudgmen‘r impugned and record of fhe Cour‘rbelow. u f 8. Learned eounsel for fhe appellanf vehemen'fly argued fhaf 1'he conviction is based on fhe circumsfanfial evidence, subsi'an‘riaHy on $ a fhe aileged lasf seen fheory. In case of conviction based on circums‘ran‘riai evidence and ias1' seen Theory, prosecui’ion is required +0 prove comple-re chain of circumsfances sufficient for drawing an inference Thaf fhe appeilan‘r has commif'red fhe offence and excep‘i' fhe appeilan‘r no ofher person has commi‘h‘ed The offence. Last seen Theory is a weak Type of evidence and prosecufion is required To prove The fac’r Thaf There was no Time gap beTween The lasT seen Theory and aiieged recovery of dead body 5f The deceased. In case of circumsTanTial evidence, prosecuTion is required To prove The inTenTion and moTive of The appellanT for commission of The offence @ such suspicion, he has commif‘fed 'I'he murder 0f his wife and child. The evidence adduced on behalf of 1he prosecution is wfficien't for drawing an inference fhnf on ihe dafe of offence, The appellanf was presen'r along wi‘rh Kajli and Kanhu (since deceased) in The house of Sahddr'a (PW-3). Kajii fook 2 broom sficks (Jhadu) from Sahodra f and on second day, dead bodies of Kajli and Kanhu were found; The appeiiémi has no‘r offered any explanafion, especiaily, when he discarded fhe conipany of The deceased. On fhe basis of aforesaid circumsi‘hnces adduced on behalf of 1'he prosecufion, if is sufficien'l' for drawing an inference 'rhaf only fhe appellan‘l has commiffed fhe offence and excep‘l' him no ofher person has commi‘ri'ed fhe offence. 10. In The presenT case, homicidal deaTh as a resulT of anTe morTem faTal injury To The deceased Kajli and Kanju hasnoT been subsTanTially dispuTed by The appellant On The oTher hand, iT is esTablished by The evidence of Dr. RN. Mandavi (PW—9) and auTopw reporTs Ex. P/14 and Ex. P/15, which revealed ThaT anTe morTem faTal injuries were found over The neck of The deceased Kajli and Kanhu and The deaTh was homicidal in naTure. 0‘ 11. As regards complicity of The accused/appellanT in crime in quesTion is concerned, The convicTion isrsubsTanTially based on The circumsTanTial evidence, especially, The evidence of lasT seen theory. Rhkhmbal (PW 1) mO'l’l'Ier of Kajli has deposed in her evidence ThaT‘L‘H: The appellanT was married To her daughTer KaJll KaJli gave birTh To Kanhu On Tuesday, appellanT Took his Wife Kalil and son Kanhu from her house To Village TeTla and ThereafTer, KaJli and Kanhu were noT i i, \ found alive and she came 1'0 know 'rhotj'he appellan'r has killed his wife Kqjli and son Knnhu near village Tardq. Sm'remen‘r of Bhugwano (PW—2), brother cf Kajli has also subs‘ran'rially corrobora'red 'rhe evidence of Rakhnibai (PW-1) and specificaHy deposed in his evidenge fhaf last Time Kajli went wi‘rh fhe appellant on Tuesday af abou‘r 8 a.m. and second day Le. on Wed‘hésday, he came To know Tha‘r fhe appellanf has killed Kajii and Kanhu near- viilage Tarda. Then he wenf 1‘0 1'h'e spar, where dead bodies‘of Kajli and Kanhu Were lying. Sahodra (PW-3), anol'her' wifness has also deposed *haf af about 1.00 p.m. 'rhe appellanl' along wifh KaJ'li and son Kanhu came fa her- house and may Took meal a-r abou'r 3.00 p.m. The appellan‘l‘ wenf along wifh his wife and son To village Tefla. On fhaf day, Kajli demanded 2 broom sficks (Jhadu) from her, which she provided, 'rhereaf‘l'er, Kajli has died and appellan‘r has absconded. She hear-d fha‘r The appellanf has murdered Kajli and Kanhu and absconded. ’Panchusar (PW—4), who has lodged merg vide Ex. P/6 and Ex. P/7 has deposed fha'r 'l'hey have seen 'i'wo dead bodies near Bahala Dipa Nala fhen he lodged fhe merg in'rimafion as above. Merg in'rimaTion Ex. P/6 and Ex. P/7 found lodged on 22.12.2001 a1' abou‘i 6.45 p.m. On ‘l‘he basis of merg, inques? over bofh fhe dead bodies was prepared vide Ex. P/10 and Ex. P/11. During 'i'he course of inquesf, dead bodies were iden‘l'ified as ‘rhe bodies of Kajli and Kanhu. Convic‘l’ion in fhe present case is based on subs‘l'an‘l'ially las'l' seen fheory. ‘iKi/ 12. In order +0 apprecim'e 'rhe nrgumgnfs, advanced on beha!f of fhe parfies, we have examined fhe evidence adduced on-behalf of ‘rhe: parfies. 13. The convicfion is bdsed on subs‘rqn‘rially Ins? seen fheory. In case of The conviction, based on'las‘r seen fheor-y, pmsecufion is requw'ed 1’0 prove fhe fac‘r Thaf fhe deceased was seen Ins? fime in the company of 1+1e appellam and ‘l’hereaf‘rer, wifhin a shorf ‘Hme gap, fhe deceased was found dead. In fhe presen'l' case, evidence of Qakhnibai (PW-1),omo1'her of fhe deceased and Bhagwano (PW-2), brofher of ‘rhe deceased Kajli clearly esfablishes 1'ha'r Jus'r few days before The date of incident fhe appellant fook his wife Kajli and son Kanhu with him and proceeded for his village Tetla.‘ Sahodra (PW-3) has deposed in her evidence that her sister’s daughter deceased Kajli, her son and the appellant came to her house at 1.00 p.m. They stayed and took meal. ‘ Deceased Kajli demanded 2 broom sticks (Jhadu) from her and she provided that to her. Then the appellant along with Kajli and son Kanhu proceeded for village Tetla, residence of therappellant, but afterwards, dead bodies of both the persons were found near village Tarda. 1 14. While dealing with the question of evidentiary value of last seen theory, the Apex Court has held in the matter of Haffi 5mg}: V. sfafe of Hat-yam, (2000 12 .566 471 that the evidence of 1 last seen by itself is not of much significance. It may, however, l , provide for a link in the chain. But unless the time gap between the \\ \\ i l » deceased of having been last seen in the company of the accused a, i persons and *he murder is proximafe, ij’ is difficuH fo prove The guilf of *he accused only on ‘rhaf basis. 15. While dealing wi‘rh The same question, fhe Apex Cour? in ‘the case of 5mm of 60a V. 5am‘ay Thakran and anarher and anofher cannecfed appeal (200$ 3 566 kg held Tho? in case of las'r seen fogether' fhe proof of las'r seen foge‘ther would be relevant if 1he prosecution establishes that in the intervening period there was no possibility of any other person meeting or approaching the deceased at 'lhe 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 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 seeh 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 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 10 evidence 'rhm' iikehhood of anyxper-son ofher Than 'Hne' accused, being ‘rhe amhor' of fha crime, becomes impossible, fhen The evidence of circumsmnce of inst seen ioge‘rher, alfhough fher'e is long dumfion of Time' can be considered as one of the circumsfances in 1'he chain of circumsi'ances 'ro prove ‘l'he guilT agninsf such accused persons. Hence,jf +he prosecufion proves fha‘l' in The light of ihe facfs and circumsmnces of fhe case, there was no possibility of any other person meeting or “f approaching the deceased at the place of incident or before‘the commission of the crime, in the intervening v» period, the proof of last seen together would be \‘ 4 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 intrusion to that place by any third party, then a relatively wider time gap would not effect the prosecution case". 16. While dealing with the question of last seen together, the Apex Court in the case of 5ahad¢van alias 5agadevan V. 5fafe represented by Inspecfor of Police, €hennai (2003) 1 562' 534 t: 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 :- 1 , “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 l from The morning of 5.3.1985 fill a'r lens? 5 p.m. on fhe some dQy, when he was broughf 1‘0 his house and fhereaffer- his dead body was found in 1+:e morning of 6.3.1985. Therefore, if has become obligatory on 1'he appellanfs To safisfy ‘the cour‘r as to how, where and in whaf manner Vadivelu par‘l'ed company wi'l'h Them. This is on fhe principle 'rhaf a person who is los‘r found in fhe company of ano‘l’her, if lafer found missing, 1hen fine person wi‘rh whom he was las‘r found has ‘ro explain The circumstances in which they parted company. In the instant case, the 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 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 such circumstances, it was incumbent upon A—1 to have explained to the court in what circumstances they parted company. He has not given any ekpianation in this‘ regard. On the contrary, the prosecution has established the fact that on the very day at about 5.00 p.m., Vaidvelu 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 cor-ss- 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 still 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 missing of Vadivelu. At this point, it may be relevar 'ro nofe 1-ha1- 1'hough no specific sfand has been Taken by 'I'he appellan'rs as To 'fheir purring company with Vadivelu, in fheir sm‘remem under Sec‘rion 313 C.P.C. If is seen rom 1he evidence f PWs.1 and 5 The? A-1 fold fhe said witnesses on The nigh? in‘iervening ‘e‘l'ween 5.3.1985 and 6.3.1985 fha‘r Vudilu had essgped from *he'Police Sfc‘rion when he was allowe f0 sleep in the veranda of The Police 5+a1'io'n. This eiann‘rion given by A-l 1'0 W— _1 which was also heard by PWs. 5 and 14, clearly shows fhaf ‘rhe same is fotally false and obviously was an excuse made by The appellan‘rs io concea fhe ‘rrue fads d, fherefore, This circumsfance of A-l making a false sfafemenf ‘io PW—1 can also be ‘raken as a circumsfance againsf fhe apellant, in esfablishing fhe appellants guilt This ourt more 1han one case has held, fhaf i 1'he rosecufi, based on reliable evidence, es'rablishes “rhai' The issing person was lasf seen in the company of th accused and was never seen thereafter, i is obligatory on the accused to explain the circumstances in which the issing-person and the accused pared company. See'Joseph V. State of Kerala (2000 5 SCC 197). Therefore, we are in agreemen wit th finding of the Courts below that circumstance No.7 also stands established against the appellants". In the present case, merg Ex. P/6 and Ex.P/7 revealed that both the dead bodies were found on 22.10.2001 near l Bahaladipa Nala at village Tarda. Rakhnibai (PW-1) is a rustic ‘ villager, who has only stated the day i.e. Tuesday when the i appellant took the deceased with him. Her statement under w‘ Section 161 of the Code was recorded on 27.12.2001, which revealed the date 18.12.2001 when the appellant took the deceased and his son with him. Same thing also finds place in rr r f o b ve d h' xp P l an ps C in f pon m e t m t t h e @ E‘x. P/2 Sfa'remen‘r recorded under section 161 of fhe Code of Bhagweno (PW-2). Sehodm's (PW-3) Police s‘ra‘remenf also revealed Thaf on 19.12.2002, *he appeilan‘r come To her house along wifh his wife and son and offer faking meal, he wen‘l' along wifh his wife and son for his village Te‘rla. This clearly shows 11m on 18.12.2001, appellam Ian m house of Rakhnibdi (PW-1) alohgf with his wife and son and finally he lefi' fhe house of sahodm (PW-‘3) on 19.12.2001 o1 aboui 3.00: p.m. along wmo bo‘rh ihe deceased persons and second day, dead bodies of Kajli and Kanhu were found near Bahaladipa Nala. The appellan‘l' was The husband of Kajli and father of Kanhu and he fook his wife and son lasfly from fhe house of Snhodra (PW-3). AT 1he fime of leaving fhe house of Sahodra, Kajli demand 2 broom sficks (Jhadu) from her and she provided if, Kajli fook The broom sficks with her, which is exhibifed as Ex. P/12. Seizure of blood sfained soil, plain soil and 2 broom sh'cks near 'rhe place ‘ of incidenf, where fhe dead body of Kajli was lying along wifh broken pieces of bangles, revealed fha‘r 2 broom sficks were l also found with fhe deceased Kajli. If shows fha‘r before _ reaching fhe house of appellanf of village Tefla Kajli and Kanhu ; have been murdered in ‘rhe way while fhey were going fo “rheir village Tefla from village Chapora. 18. In The presenT case, Time gap beTween The recovery of The dead bodies of The deceased persons and lasT seen Theory ‘. is noT so shorT, buT in This case, appellanT was noT a sTranger or \ \\ \ t') 14 @ no’r a friend, buT was The husband of Kajli and fafher of Kmhu, 3 monfhs small child. W 19L Du'ry of care of wife and 3 monfhs small child was higher on} 1he appellant and he was under obligai'ion To take his wife and son safely 1'0 his house, bul‘aur'ing 'l‘he course of journey, wife and son of fhe appellan'r- died, as a resul'r of culpable homicide. ‘Preseni appellant has no‘r lodged any reporf nor he has offered any explanafion 'rha'r how They died. As is held in The case of Sahadevan (supra), presenT appellanT has noT offered any explanaTion ThaT when he parTed The company of his wife and 3 monThs small child. Defence has cross examined Rakihnibai (PW-1) in deTaiIed and Tried To suggesT ThaT KoJli was cdnceived Through anoTher person Sahan Soura and Thereby Tried To suspecT upon The characTer of Kajli, which appears To be moTive for commission of The offence. In The presenT case, prosecuTion has proved The following circumsTances : i. AppellanT Took his wife and son from his moTher in law's house and proceeded for his village TeTla. ‘ii. On second day, he wenT To The house of Sahodra aT j village Chapora along wiTh his wife Kajli and son Kanhu. iii. Deceased Kajli and son Kanhu were seen lasT Time in The company of The appellanT aT abouT 3.00 p.m. on 19.12.2001 iv. Deceased Kajli demanded 2 broom sTicks from ’Sahodra, which she was having wiTh her during The course of journey. v. b Appellant his wife and son did noT reach To Their house aT village TeTla. i. i l l l \ \ \ \ O \\ 15 vi. Affer 19.12.2001, appeilan‘r has noj' lodged any reporf 1'0 Police ahouT missing ofhis wife and son. vii. 0n 20.12.2001, dead body of Kajli imd her son ‘Kanhu found neur- Bahaladipa Nala in injured condifion. viii.‘ Deafh of Kajli and Kanhu wasrhomicidal in nafure. ix. . Appellant has nof offered any explanafion Thu? when he parlédt‘rhe company of his wife and son. x. ' Appellan‘r ‘was under obligo‘l'ion To fake his wife and son safely To his house, buT he has