:-:'::°s^ 8 §5A-.<<° •""'"^^' yj HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri SunilKymar^inhaijJ. Criminal Appeal No. 393 of 1993 Harprasad alias Kariya Patel & Another Vs. The State of M.P. (Now State of Chhattisgarh) JUDGMENT !3stSi'fi. For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA Sd/- Chief Justice / I 1/&.V 1 w Post for Judgme"L^''x/^U3^irl Sd/- Judge ^ /11/2010 RAJESH KUMAR SONTEKE Digitally signed by RAJESH KUMAR SONTEKE Date: 2025.02.06 12:32:45 +0530 HIGHCOURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieey Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. APPELLANTS RESPONDENT Criminal Appeal No. 393 of 1 993 1 Harprasad alias Kariya Patel S/o Jageshwar Patel, aged about 28 years, agriculturist, R/o Village Basantpur, P.S. Pachhpedi (Masturi), District Bilaspur, M.P., (Now Chhattisgarh) 2 Shri Gorelal Kewat, S/o Ramdayal Kewat, aged about 25 years, agriculturist, R/o Village Kharkhod, P.S. Pamgarh, District Bilaspur Versus The State of MP (Now State of Chhattisgarh), Through Officer-ln-Charge Police Station Kasdol, District Raipur (Criminal Appeal under Section374 (2) of The Code of Criminal Procedure, 1973) Appearance: Mrs. Kiran Jain, Advocate for the appellants. Mr. Jameel Akhtar Lohani, Panel Lawyer for the State. JUDGMENT (10.11.2010) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. th This appeal is directed against the judgment dated 12"' of February, 1993 passed in Sessions Trial No. 88/91 by the Additional Sessions Judge, Baloda Bazaar, District Raipur. CruninalAripealNo. 393 of 1993 altljS3' ,.(--?& (2) By the impugned judgment, the appellants have been convicted u/s 302 IPC and sentenced to undergo imprisonment for life. The facts, briefly stated, are as under:- Deceased- Tiharuram Sahu was a resident of village Pakariya. Appellant- Harprasad @ Kariya Patel was a resident of village Basantpur. They were engaged in the work of supply of labour on commission basis. According to the prosecution, the deceased had to pay Rs.20,000/- to appellant No.1 - Harprasad, which he was not paying, therefore, Harprasad was keeping ill-will against him. The allegations are that on account of said ill-will, the appellants committed murder of the deceased on 15.12.90 in village Narayanpur. The case ofthe prosecution is that on 15.12.90 at about9.DO a.m., the appellants and the deceased visited the house of Dhanauram (PW-3) which is situated in village Narayanpur. After taking tea, they left the house of PW-3. At about 12 in the Noon, the deceased was found in injured condition near a na/a in outer area of the village. He had received many injuries. He was unable to speak. Later on, the deceased died. The further case of the prosecution is that Brijmohan Singh (PW-1), at about 12 in the Noon, heard some noise from the na/a side and saw that the 2 persons were running away towards eastern side. When he reached to the place of occurrence, he found the deceased in injured condition. However, he could not identify those 2 persons. It is also the case of the prosecution that while the appellants and the deceased left the house.of Dhanauram (PW-3), appellant- Harprasad also took a tangia from Rajau (PW-4) which was later on seized at his instance on his memorandum statement recorded u/s 27 of the Evidence Act. •a i^^^^s^^^^^?i%^^if^?^^^^:^^%^^^?^^^|si^s^%§lM^itii^ls;i%lss 1^''^K:-<;^^^;^^^;':^31^®%^'%^^:::i'%^:^;L:^':^ l;?WM¥^;^B®^:;§l^®^!i?:^ 3t GnmmaI DealI'IcK393ofig93 BiIH K^S •^;3i:|^ ;/;'| Admittedly, there were np eye-witnesses to the incident and the case of the prosecution was based on circumstantial evidence. The learnedSessions Judge held the following circumstances to be proved against the appellants and convicted & sentenced them as aforementioned:- (i) The deceased was lastly seen in the company of the appellants at about 9.00 a.m. on 15 of December, 1990 when they visited the house of Dhanauram (PW-3) and Rajau (PW-4). (ii) Appellant- Harprasad took a tangia from Rajau (PW-4), which was later on recovered on his memorandum statement u/s 27 of the Evidence Act. (iii) On the same day at about 12 in the Noon, the deceased was found in injured condition near the nala and Brijmohan Singh (PW-1) saw that 2 persons were running towards eastern side. (iv) Some cloths were seized from the possession of the appellantson which blood stains were found. ,,^1 Mrs. Kiran Jain, learned counsel appearing on behalf of the appellants, argued that the conviction is mainly based on last seen evidence but the time gap when the deceased was lastly seen alive in the company of the appellantsand the time when he was found dead, is long, therefore, that cannot be incriminating against the appellants. She also argued that thought the blood stains were found on the cloths of the appellants and tangia recovered on the instance of Harprasad, but it was not established that it was human blood. She referred to the judgment of Tioparam Prabhakar -Vs- The State ofAndhra Pradesh. 2009 CRI.L.J. 3032. Criminal Apoeal No. 393 of 1993 (5) On the other hand, Mr. Jameet Akhtar Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. .tfp i'.^^" (7) In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be established and they should exclude every possible hypothesis except the guitt of the accused. The chain of circumstantiat evidence must be so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in atl human probability the act must have been done by the accused, that a part the circumstances should be of conclusive nature and tendency. In Tipparam (supra), the Supreme Court held vide Para-8 that "The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen tast alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the 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 Criminal ApoealNo. 393 of 1993 /^ evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases". In the said case, the deceased was lastly seen alive at 10-10.30 p.m. in the company ofthe appellant and the dead body of the deceased was found at about 11.00 p.m. Mrs. Jain has argued that in such time gap the benefit was given to the appellant and the appellant was acquitted. The argument on fact is cbrrect but it does not appear that the Supreme Court acquitted the appellant only on the ground of the. time gap. The Supreme Court took into consideration various other circumstances and then the appellant has been acquitted in the said case. Thought the said judgment is not fully applicable in the facts and circumstances of this case, but it is helpful for the principle laid down vide Para-8 for last seen theory. (9) In the present case, according to Dhanauram (PW-3) and Rajau (PW-4), the deceased visited their house along with the appellants at about 9.00 a.m. and the dead body of the deceased was found near the nala at about 12 in the Noon. Therefore, there was a time gap of 3 hours. What happened in this period is not on record. In fact, when Dhanauram (PW-3) asked to his brother Rajau (PW-4), Rajau told him that the appellants and the deceased have already gone. Rajau (PW-4) simply deposed that the appellants and the deceased visited his house in the morning and they left his house after taking tea. Therefore, tooking to the time gap in between the deceased was seen alive in the companyof the appellants and '<q-s Criminal Appeal No. 393 of 1993 seeing his dead body near the nala, a possibility of any person other than appellants being author of crime cannot be said to be impossible. (10) As far as seizure of tangia at the instance of appellant- Harprasad is concerned, the same cannot be held to be incriminating, as the origin of the blood stains found in tangia could not be ascertained by Serologist. Similar is the position about the cloths said to be seized from the possession of the appellants as the origin of the blood stains found on the cloths also could not be determined on accountoftheirdisintegration. (11) Brijmohan Singh (PW-1) is village Kotwar. He deposed that at about 12 in,the Noon, he was working in a field near nala. He heard cries like 'cTcTrafr-ETErrsft'. When he reached near the nala, he saw that 2 persons were running away towards the eastern side. He found that the deceased was lying in injured condition but he was not in a position to speak. Brijmohan (PW-1) could not identify as to who were those 2 persons. We find that in his evidence, he even could not give such details about those 2 persons on which it may be said that they were none else than the present 2appellants. (12) In appreciation of the entire evidence available on record, we find that the circumstantial evidence pressed into motion raises suspicion against the appellants, but only on account of such ^ Criminal Appeal No. 393 of 1993 suspicion conviction cannot be awarded to the appeltants as the suspicion how so ever strong cannot take the place of proof. (13) In the above facts and circumstances of the case, in our considered view, the learned Sessions Judge erred in law in convicting the appellants u/s 302 IPCon the above setof circumstantial evidence. (14) In the result, the appeal is allowed. The conviction and sentence awarded to the appellants u/s 302 IPC are set-aside. They are acquitted of the charges framed against them. The appellants were taken into custody on 15.12.90 and they were directed to be released on bail on 1 1.2.2002. It is stated that presently they are on bail. Their bail bonds are cancelled and sureties stand discharged. u Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge V3'I!