(^' T HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA 6& HON'BLE MR. R.L. JHANWAR, JJ. Crimjnal AiapealNo. 828/1993. APPELLANT IN JAIL RESPONDENT VERSUS Dinesh. State of Madhya Pradesh. JUDGEMENT FOR CONSIDERATION Hon'ble Mr. R.L. JHANWAR J. Sd/- T.R Sharma Judge Sd/- R.L. Jhanwar Judge Post for Judgment on: 03/05/2010 Sd/- T.P. Sharma Judge BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.07 11:57:23 +0530 HIGH COURT OF CHHATTLSGARH AT BILASPUR DIVISION BENCH CORAM: 7 r • ' ^ A HON'BLE MR. T.P. SHARMA 8& HON'BLE MR. R.L. JHANWAR, JJ. APPELLANT IN JAIL Criminal Appeal No. 828/1993. Dinesh S/o Sahdur Gond, aged22 years, Occupation- Agriculturist, R/o Village Satelli, Police Station Bhanupratappur, Distt. Bastar (M.P.). VERSUS RESPONDENT State of Madhya Pradesh, through P.S. Bhanupratappur, Distt. Bastar (M.P.). CRIMINAL APPEAL UNDER_SECTION 374 OF THE CRIMINAL PROCEDURE CODE, 1973. Present:- Shri N.K. Chatterjee with Shri Anurag Shrivastava,. Advocate for the appellant. Shri Sudhir Bajpai, Dy. G.A. for the State/respondent. JUDGEMENT (Passed on 03/05/2010) The following judgment of the Court was passed by T.P. Sharma, J:- 1. Challenge in tjnis appeal is to the judgment of conviction and order of sentence dated 03/03/1993 passed by Additional Sessions Judge, Kanker, District Bastar in Sessions Trial No. 14/92 whereby and where under after holding the appellant guilt}^ for the commission of culpable homicide amounting to murder of deceased Bihauram and concealing the evidence of criminal case, ^ T ^ .< convicted the appellant under Sections 302 & 201 of the Indian Penal Code and sentenced imprisonment for life and rigorous imprisonment for 2 years. 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 as aforementioned and thereby committed an illegality.' Prosecution case in brief is, on 12/8/91 at evening time appellant called Bihauram (since deceased) took with him, they were standing near the well for some time, they quarreled thereafter appellant throttled his neck and caused his death. After causing his death, appellant threw the dead body in the well with a view to conceal the evidence of criminal case. Bihauram did not come back to his house, their fainily members searched ultimately on 15/8/91 the dead body of Bihauram was found in the well. PW3 Navluram, father of Bihauram went to the Police Station and lodged Marg vide Ex. P-3. Investigating Officer left for scene of occurrence, after summoning the witnesses vide Ex. P-1 . After taking out the dead body from the well inquest over the dead body of the deceased Bihauram was prepared vide Ex. P-2. Two liters water of well was seized vide Ex. P-4. Spot map was prepared vide Ex. P-7. Dehatinalisi was recorded vide Ex. P-11. Dead body was sent for autopsy to Government Hospital, Fr^- ^ [^ _ < •A Bhanupratappur vide Ex. P-1 OA. PW9 Dr. R.S. Thakur conducted autopsy vide Ex. P-10 and found injury over the neck, fracture of cornea of hyoid bone and femur bone was preserved along with viscera for diatom test. Cause of death was asphyxia as a result of throttling. Death was homicidal in nature. Finally numbered First Information Report was lodged vide Ex. P-11A. Accused was arrested vide Ex. P-12. Sealed femur bone and viscera were seized vide Ex. P-13. Seized articles were sent for chemical examination vide Ex. P-14. Statements of the witnesses were recorded under Section 161 ofthe Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Bhanupratappur who in turn committed the case to the Court of Sessions, Kanker District Bastar from where learned Additional Sessions Judge, Kanker District Bastar received the case on transfer for trial. In order to prove the guilt of the appellant/accused prosecution examined as many as 10 witnesses. Appellant/accused was examined under Section 313 of the Code where he denied the circumstance appearing against hira/innocency and false implication is claimed. :J""':^... ^^ ^ ^ ? ^tefe, "'^^ \t>-^ '"Nr-i T ^ 6. After affording an opportunity of hearing to the parties, learned Additional Sessions Judge, Kanker District Bastar, convicted and sentenced the appellant as aforementioned. 7. Learned counsel for the appellant Shri N.K. Chatterjee with Shri Anurag Shrivastava and learned counsel for the respondent/State Shri Sudhir Bajpai, Dy. G.A. are heard. Judgment impugned and record of Court below perused. 8. Learned counsel for the appellant vehemently argued that substantially conviction is based on last seen theory. Last seen theory itself is not sufficient for the conviction of the accused in absence of any further corroboration from independent source even otherwise if accused offers explanation that when he parted the company then last seen theory i.e. evidence of last seen alive of the deceased in the company of accused looses its importance.In the present case even otherwise appellant has offered explanation that he has parted the company of deceased. 9. Learned counsel for the appellant further argued that accused is not required to adduce any evidence in his support, the suggestion given to the .prosecution witnesses relating to his defence is sufficient for proving his defence. 10. On the other hand, learned counsel for the respondent/State opposed the appeal and submits that ^^^.,,: ^^, v'^ .^.r^ "^1 ^' Ite, 1 'l :'"% t 'k vv.: ^ w '•"•.v^f conviction is based on last seen theory. Appellant has present with the deceased near the well and thereafter deceased was missing and his dead body was found in the well. This evidence is sufficient to proof the fact that only appellant was the person whd has committed the offence and except appellant no one has committed the offence. 11. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalfofthe prosecution. 12. In the present case, homicidal death as a result of ante- mortem throttling injury of deceased Bihauram has not been substantially disputed on behalf of the appellant on the other hand also established by the evidence of PW9 Dr. R.S. Thakur 85 autopsy report Ex. P-10 which reveals the injury over the neck including the fracture of cornea of hyoid bone & femur bone. Death was homicidal in nature. 13. As regard the complicity of the appellant in crime in question, conviction is based on last seen theory. As per evidence of PW2 Birjhuram while he was going to house of Dhaniram and passing beside the well he saw the deceased Bihauram and accused near the well. They were standing being asked them told about personal talk thereafter after lapse of one week dead body of deceased ^ Bihauram was found beside .well. PW3 Navluram father of the deceased has deposed that on the date of incident Monday appellant called his son Bihauram thereafter he did not come back and his dead body was found in the well. On Thursday he has lodged the Marg vide Ex. P-3. PW7 Latel has also deposed that on the date of incident accused called Bihauram thereafter he did not come back to his house alive. He has admitted in Para-7 to his cross- examination , that being asked by the Police appellant confessed his guilt. 14. PW8 Shivlal has substantially corroborated the evidence of PW2 Birjhuram both were going to the house of Dhaniram for taking meal, if this evidence is accepted then it may be presumed that on Monday probably on 12/8/91 at 8 P.M. appellant called Bihauram. Bihauram was seen in the company of the appellant near the well. They were discussing and thereafter on 15/8/91 his dead body was seen in the well at about 6 P.M. i.e. after 3 days ofthe alleged evidence oflast seen. 15. In case of Sahadevan alias Saeadevan v. State represented by Inspector of Police, Chennai1 Apex Court has held that in case of last seen the accused is under obligation to explain when he parted the company of the deceased and if accused failed to offer explanation ' (2003) 1 SCC 534 ^p ^' ^•-<. ^...}' then same shall be adverse circumstance against the accused. 16. While dealing with the conviction on the basis of last seen theoiy in case of State of Goa v. Saniav Thakran and another and another connected appeaP Apex Court has held that prosecution is required to proof 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. 17. In the present case as per documentary and ocular evidence of the prosecution the deceased was seen alive last time in the company of the appellant on 12/8/91 at about 8 P.M. thereafter his dead body was recovered/seen on 15/8/91 at about 6 P.M., the time gap between deceased seen in the company of appellant and knowledge of dead body of the deceased is about 72 hours about 3 days. PW7 Latel has deposed in Para-4 of his evidence that Magtebai probably mother of the deceased went to the house of appellant and asked him then 2 (2007) 3 SCC 755 "l:" appellant told her that Bihauram has gone to his house at night. This statement is sufficient explanation on behalf of the appellant that Bihauram has parted the company at night on the date when they were standing near the well. Investigating Officer has prepared the Map vide Ex. P-7 which clearly shows that well is within the vicinity and inside the village. 18. As per evidence of the prosecution, especially the evidence of PW1 Birjhuram the dead body was noating in the well. Prosecution evidence further reveal that it was not tied with stone or any heavy article, well was not situated at lonely place where the public or villagers normally do not go, it was situated inside the village near the vicinity. The dead body was not tied with heavy article it was floating in the water. The time gap between last seen theory and recovery of dead body is about 3 days that too not from lonely place or forest. 19. As per evidence of the prosecution both the persons were standing near the well and even as per story of the prosecution they quarreled near the well and they pushed down to each other (^CT TT?^) near the well but nobody was tried to see inside the well where the dead body was floating. If aforesaid circumstances are considered together then it is difficult to hold that there was no any /f"^ '\ ?^m. 1 '^-•^--•;':1 S '^ ?'j t.^' /^) 20. third person between appellant and deceased and only appellant has committed the aforesaid offence although no straightjacket formula would be possible relating to time gap and even considerable long time gap may be treated as small gap. In particular the facts and circumstances of the case but in the present case the time gap is not small. The fact that well situated in the vicinity and inside the village where alleged dead body was floating has not seen by any villagers specially in the circumstance that quarrel took place near the well and deceased was found missing does not appears to be natural. Appellant has offered explanation. Considering the aforesaid circumstances the conviction of the appellant only on the basis of last seen theory. In the present case is not safe while convicting the appellant Court below has not considered the aforesaid circumstances and thereby committed an illegality. For the foregoing reasons, this criminal appeal is allowed. Conviction and sentence of the appellant under Sections 302 & 201 of the Indian Penal Code is hereby set aside. He be set at liberty at once. He is in custody. He be released if not required in any other case. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge