ft X\'}- ^ HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hoji'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shyam Sharma CriminaLAppeaLNo.169 of 1995 Satyarao alias Sairao versus State of Madhya Pradesh (now State of Chhattisgarh) JUDGMENT FOR CONSIDERATJON Sd/- 30-06-2011 Hoj^ble Shri Sunil Kumar Sinha, J.: 3 (^^~ Sd/- «"nilKumar Sinha Judge Postfor i-07-2011 Sd/- R.S. Sharma Judge HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.169 ofj995 Appellant versus Respondent Satyarao alias Sairao, son of Krishna Rao, aged 22 years, Student (Private), R/o Adka, Chhaparapara, Kondagawon, District Bastar (MP) (now Chhattisgarh) State of Madhya Pradesh (now State of Chhattisgarh) through Police Kondagawon, District Bastar (MP) (now Chhattisgarh) Present: Smt.Kiran Jain, counsel forthe appellant. Shri Ajit Singh, Panel Lawyer for the State/respondent. Criminal Appeal under Section 374(2) of the Code of Criminal Procedure JUDGMENT (Deliveredon isfc July,2011) Per Radhe Shyam Sharma, J.: This appeal is directed against the judgment dated 1-10-1994 passed by the Sessions Judge, Bastar at Jagdalpur in Sessions Trial No.5/91, whereby the appellant has been convicted under Sections 302 and 201 of the Indian Penal Code and sentenced to undergo imprisonment for life and pay fine of Rs.500/-, in default to further undergo simple imprisonment for three months; and rigorous imprisonment for five years and pay fine of Rs.500/-, in default to further undergo simple imprisonment for six months. The sentences are directed to run concurrently. \ 2. The case of the prosecution is as under: The accused/appellant Satyarao alias Sairao was residing near the house of the complainant Sukhnath (PW-1). A pond (Dabari) is situated near the house of the complainant. On the date of incident, i.e., 30-8-1990, when deceased Girish Kumar and his sister Malti Kumari (PW-5) were taking bath in the pond, the appellant was sitting at the bank of the pond. The appellant showed them a pen. Deceased Girish Kumar was asked by the appellant to come to his house to take a pen. At about 9 A.M., when Girish Kumar and Malti Kumari were going to school, Girish Kumar gave his school bag to Malti Kumari and said her that he will come back after taking pen from the house of the appellant. On this, taking the. school bag of Girish Kumar, Malti Kumari went to the school. When she searched Girish Kumar during lunch-hour at about 1:30 P.M., she found that Girish Kumar was not present in his classroom. Malti Kumariwent to the appellant and asked him about Girish Kumar. The appellant told her that Girish Kumar has gone towards Naka. Malti Kumari went to the Naka. She did not find Girish Kumar there. Then, the brother of the appellant told that he had seen Girish Kumar going towards Dogariguda. Malti Kumari went to Dogariguda, but she did not find Girish Kumar there. Thereafter, Malti Kumari went to her home and narrated the story to her parents. On this, father of Malti Kumari, i.e., complainant Sukhnath (PW-1) asked the appellant about Girish Kumar, but he did not tell anything. Thereafter, Sukhnath (PW-1) went to the Police Station Kondagaon for lodging a report. In the meantime, Malti Kumari (PW-5), her mother Laxmibai (PW-6) and Basant (PW-7) went to the house of the appellant and having opened the door of the house forcibly entered the house. They saw that Girish Kumar was lying in the house of the appellant. The allegations are that having seen them, the appellant lifted Girish Kumar and ran away to throw him into the pond. On this, Laxmibai (PW-6) stopped him, but the appellant threw the dead-body of Girish Kumar into the pond behind his house. The dead-body was taken out of the pond. There were injuries on his head. There was ligature mark on the neck and there were injuries below the left eye. Sukhnath (PW-1) lodged first information report (Ex.P-1) with Police Station Kondagaon and ultimately the investigation commenced. Inspector A.N.Mishra (PW- 11) left for the place of occurrence on 30-8-1990, prepared inquest (Ex.P-2) on the body of deceased Girish Kumar and sent the dead- body to R.N.T. Hospital, Kondagaon for post mortem examination. Dr. P.N.Awadhiya (PW-9) conducted autopsy on the dead-body. He found following injuries on the dead-body: (i) Abrasion 2.5 cm x 0.5 cm over right pre-auricular region. (ii) Abrasion 2.5 cm x 0.5 cm lateral to left eyebrow. (iii) Abrasion 1.5 cm x 0.5 cm over right sub- mandibular region. (iv) Blood clots were seen in the deeper plane of neck anteriorly when it was cut open. (v) Linear abrasion seen in the anterior wall of anal canal 1.5 cm x 0.5 cm. The autopsy surgeon opined that the cause of death was asphyxia due to strangulation. The death was homicidal in nature. Post mortem report is Ex.P-8. Seizure of blood stained soil and plain soil was made and cloth-strip of the appellant, which was allegedly stained with blood, was also seized under Ex.P-4. The seized articles were sent for chemical examination. According to the chemical examiner's report (Ex.P-11), blood stains were found in the cloth-strip seized from the appellant. After completion of the investigation, a charge-sheet was filed in the Court of Chief Judicial Magistrate, Bastar at Jagdalpur, who, in turn, committed the case to the Court of Session, where the trial of the appellant was conducted. The learned Sessions Judge acquitted the appellant of the charge under Section 377 of the Indian Penal Code, however, he was convicted underSections 302 and 201 ofthe Indian Penal Code and sentenced as above. 3. Smt. Kiran Jain, learned counsel appearing for the appellant argued that finding recorded by the Sessions Judge is based on the evidence of last seen together, which is not proved beyond reasonable doubt; the Sessions Judge overlooked material omissions, contradictions and discrepancies in the evidence on record; the Sessions Judge also overlooked the improvements made by the prosecution witnesses in their evidence; there are material omissions and contradictions in the evidence of Sukhnath (PW-1), Radhabai (PW-2), Malti Kumari (PW-5), Laxmibai (PW-6) and Basant (PW-7). The finding based on their evidence is perverse and liable to be set aside. Statements of Laxmibai (PW-6) and Radhabai (PW-2) under Section 161 of the Code of Criminal Procedure were recorded after three days of the incident, whereas they were present at their house. This delay is not explained by the prosecution. Want of explanation causes a serious doubt against the prosecution and testimony of these two witnesses cannot be relied upon. Learned counsel further argued that even strong suspicion is no substitute for proof, therefore, the finding recorded by the learned Sessions Judge is not sustainable and the appellant deserves to be acquitted of the charges under Sections 302 and 201 ofthe Indian Penal Code. 4. On the other hand, Shri Ajit Singh, learned Panel Lawyer for the State/respondent, supporting the impugned judgment of conviction, argued that the prosecution witnesses are natural witnesses; their testimonies are wholly reliable and the prosecution has proved the circumstantial evidence of last seen together by cogent and reliable evidence. 5. We have heard learned counsel appearing for the parties and perused the impugned judgment as also the evidence available on record. The case of the prosecution is based on circumstantial evidence. It is well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence. The circumstances from which the conclusion of guilt is to be drawn should be fully established. It is also well settled that suspicion, however grave it may be, cannot be substitute for a proof and the Court shall take utmost precaution in finding an accused guilty only on the basis ofthe circumstantial evidence. a»ei 6. In Bodhraj alias Bodha and others vs. State of Jammu and Kashmir, (2002) 8 SCC 45, the Hon'ble Supreme Court has observed as under: "17. ........ The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153) (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved;and (5) there must be a chain of evidence so complete as not to leave any reasonable ground 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. In the instant case, the circumstantial evidence led by the prosecution are that— (i) the deceased was last seen together with the appellant; and 7 (ii) on being asked from the appellant, he threw the dead-body of the deceased into the pond. 8. Now the question arises for consideration is whether the prosecution has proved the circumstantial evidence beyond reasonable doubt? For proving the circumstantial evidence of last seen together, the prosecution has examined Malti Kumari (PW-5). Malti Kumari (PW-5) has stated that when she was taking bath along with her brother Girish Kumar (deceased) in the poncl, the appellant showed them a pen and Girish Kumar was asked by the appellant to come to his house to take pen. Malti Kumari (PW-5) has further stated that Girish Kumar had told her at the home that the appellant had said him that he will give pen for both of them, therefore, Girish Kumar went to the appellant. Girish Kumar had told Malti Kumari (PW-5) that if the appellant will give pen for her also, then he will call her there and she is not required to come with him now. Saying so, Girish Kumar went to the house of the appellant to take pen. Malti Kumari (PW-5) has stated that she thought that Girish Kumar, after taking pen from the appellant, would have gone to the school, therefore, she directly went to the school from her house. Malti Kumari (PW-5) has further stated that when lunch period was declared at 1:30 P.M., she went to search Girish Kumar. She did not find Girish Kumar in his classroom. His school bag was kept in his place. Taking his school bag, she came back to the home. She has further stated that the appellant was at his house. She asked him about Girish Kumar saying him that Girish Kumar had not gone to the school. The 'appellant replied that he had seen Girish Kumar towards Naka. She went to the Naka, but she did not find Girish i,^^!^-BiBiqp< Kumar there. She has further stated that when her father came home, she narrated everything to him. Her mother, her sister Radha, Radhi and Satish were present at her home. 9. In Hatti Singh vs. State of Haryana, (2007) 12 SCC 471, the Hon'ble Supreme Court has observed as under: "27. In Ramreddy Rajesh Khanna Reddy v. State of /\.P., (2006) 10 SCC 172, this Court noticed: (SCC p. 181, paras 27-28) "27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and 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. Even in such a case courts should look for some corroboration. 28, In State of U.P. v. Satish, (2005) 3 SCC 114, this Court observed: (SCC p.123,para 22) '22. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen 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 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. ..........." (See also State of Goa vs. Sanjay Thakran and another, (2007)3 SCC 755 ) 10. In the instant case, according to Malti Kumari (PW-5), deceased Girish Kumar had told her that he will go to the house of the appellant to take pen, but whether Girish Kumar went to the house of the appellant or not was not seen by her. Malti Kumari (PW-5) has further stated that she thought that Girish Kumar, after taking pen from the appellant, would have gone to the school and, therefore, she directly went to the school from her house. From this, it appears that Malti Kumari (PW-5) did not actually see Girish Kumar going to the house of the appellant or in the company of the appellant. 11. Apart from the above, deceased Girish Kumar is stated to have gone out of the home at about 9 A.M. and thereafter his dead- body was found in afterhoon. The time-gap between the period of going out of Girish Kumar from home and finding his dead-body from the pond is not explained by the prosecution. 12. Laxmibai (PW-6) has stated that Girish Kumar was her son. When she went to the house of the appellant, the appellant was sitting near the door of his house and the door was closed. On being opened the door by her forcibly, she found that her son was lying dead inthehouse. The appellant lifted Girish Kumar up. On 10 this, she caught his legs. The appellant pushed her away and threw dead-body of her son in the pond. She became unconscious. When she became conscious, she found dead-body of her son in her courtyard. 13. Basant (PW-7) has deposed that the mother of Girish Kumar (Laxmibai - PW-6) forcibly entered the house of the appellant. The appellant also entered his house behind her. He heard the sound of opening of back door of the house of the appellant. Laxmibai (PW- 6) had caught the legs of the appellant and she was saying that the appellant is taking her son away and throwing him. Having heard this, he went behind the house of the appellant. He saw the appellant throwing the son of Laxmibai (PW-6) and entering back his house. Laxmibai (PW-6) had become unconscious there. 14. The complainant Sukhnath (PW-1) has stated that he went to the appellant and asked him about his son Girish Kumar. On this, the appellant was trembling with fear. When he lodged report, Basant (PW-7) reached there and told him that the appellant has thrown dead-body of deceased Girish Kumar in the pond. 15. Radhabai (PW-2) has stated that her neighbourer Padum said her mother Laxmibai (PW-6) that if she has courage she should open the door of the house of the appellant. Then, her mother went to the house of the appellant. Becoming unconscious, her mother had fallen in the house of the appellant. Her mother had cried that her son Girish Kumar was lying there. The appellant threw Girish 11 Kumar in the pond. Then, with the assistance of Basant (PW-7), she took the deceased out of the pond and brought to the courtyard. 16. Now the question arises for consideration is whether the testimonies of the abovementioned four witnesses are reliable and their testimonies can be based for conviction of the appellant. 17. A perusal of paragraph 8 of the deposition of Sukhnath (PW-1) would reveal that there is material omission in the First Information Report (Ex.P-1) about the fact that Basant (PW-7), at the time of recording the First Information Report, had told that he had seen the appellant throwing Girish Kumar in. the pond. A perusal of paragraphs 12, 13, 14 and 16 ofthe deposition of Malti Kumari (PW- 5) clearly indicates that there is material omission and contradiction in her evidence. Laxmibai (PW-6), in paragraph 6 of her deposition, has stated that when she saw the dead-body of her son, it seemed to her that the appellant would have assaulted her son and she became unconscious. This establishes her assumption. 18. Statements of Laxmibai (PW-6), Radhabai (PW-2) and Basant (PW-7) under Section 161 of the Code of Criminal Procedure were recorded on 2-9-1990, whereas the incident took place on 30-8- 1990, i.e., their statements were recorded after lapse of three days from the date of incident. There is no explanation by the prosecution for recording their statements after a delay of three days. 19. In BalakrushnaSwain vs. The State of Orissa, AIR 1971 SC 804, the Hon'ble Supreme Court held that unjustified and 12 unexplained long delay on part of investigating officer in recording statement of material eye-witness, under Section 161 ofthe Code of Criminal Procedure, during investigation of murder case will render evidence of such witness unreliable because the delay would give an opportunity to concoct a different version than what actually took place. 20. In State of Orissa vs. Mr Brahmananda Nanda, AIR 1976 SC 2488, eye-witness did not disclose the name of assailant for a day and a half. The Hon'ble Supreme Court held that where in a murder case the entire prosecution case depended on the evidence of a person claiming to be eye-witn'ess and this witness did not disclose the name of the assailant for a day and a half after the incident and the explanation offered for non-disclosure was unbelievable, such non-disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness and the High Court was correct in rejecting it as untrustworthy and acquitting the accused. 21. In Bachhu Narain Singh vs. Naresh Yadav and others, AIR 2004 SC 3055, for over period of one hour while Investigating Officer was preparing inquest report, no one coming before him claiming to be eye-witness and to lodge report about occurrence though there were alleged to be ten eye-witnesses. The report was lodged after more than one hour and half hour after Investigating Officer came to place of occurrence. The Hon'ble Supreme Court said that the presence of informant and alleged eye-witness at the time of l.i,,...i.Rn!T 13 occurrence appears to be doubtful. There was serious doubt about presence of the eye-witness at the time of occurrence. 22. The investigating officer had reached the place of occurrence on the date of incident itself, i.e., on 30-8-1990 and on that date, Laxmibai (PW-6) and Radhabai (PW-2) were at their home. In spite of this, non-recording of their statements on the date of incident itself creates a doubt on the prosecution story. Recording of their statements after lapse of three days from the date of incident makes their statements suspicious. The prosecution has tried to establish that conduct of the appellant showed that the death of the deceased was caused by him because on being asked about the deceased he was trembling with fear and was giving wrong explanation. The contentions raised by the prosecution are unacceptable. They may raise suspicion regarding the conduct of the appellant, but the same cannot, in any manner, establish that it is the appellant who committed murder of the deceased. ^> !-.; ^ 23. From the evidence of Malti Kumari (PW-5), it is not proved conclusively that the deceased had gone to the house of the appellant and he was last seen together with the appellant. The time-gap between the period of going out of deceased Girish Kumar from home and finding his dead-body from the pond is excessive. Though, Malti Kumari (PW-5), Radhabai (PW-2), Laxmibai (PW-6) and Basant (PW-7) have stated that dead-body of the deceased was lying in the house of the appellant, which, the appellant had thrown in the pond, but, this statement of these witnesses is omitted in their 14 statements given to the police under Section 161 of the Code of Criminal Procedure. Laxmibai (PW-6) is the mother of the deceased, Radhabai (PW-2) is sister of the deceased and complainant Sukhnath (PW-1) is the father of the deceased. If the appellant would in fact have thrown the dead-body of the deceased in the pond, or it was seen in his house, then these witnesses would have stated these facts before the police, but these facts have not been told in their statements recorded by the police. This is material omission and for this reason, their testimonies are not reliable. Therefore, the circumstantial evidence led by the prosecution is not conclusive and is insufficient to establish that death of the deceased was caused by the appellant. The appellant cannot be convicted only on the basis of suspicion. 24. As stated above, initially, the case of the prosecution was based on circumstantial evidence, however, these witnesses tried before the Court to make it a case of eye-witnesses relating to allegedly seeing the dead-body in the house of the appellant and throwing it into the pond by the appellant before them. We further note that the First Information Report was lodged by the father ofthe deceased, Sukhnath (PW-1), at about4:00 P.M. after recovery ofthe dead-bbdy from the pond. The above witnesses, i.e., his daughter and wife, all were with him. The First Information Report was lodged on various informations given by the above witnesses, but the facts relating to seeing the dead-body in the house of the appellant and throwing it by the appellant into the pond are omitted in the First Information Report. Therefore, the improved story by the above 15 witnesses, which was neither told by them to the police nor to the father of the deceased, was totally false. 25. Having regard to the peculiar facts and circumstances of the case, the impugned judgment, based on above circumstantial evidence, is unsustainable. Accordingly, the judgment under appeal, being unsustainable, is set aside and the appeal is allowed. The conviction of the appellant under Sections 302 and 201 of the Indian Penal Code is set aside and he is acquitted of the charges framed thereunder. It is stated that the appellant was taken into custody on 31-8-1990 and since then he remained in jail till 13-12- 2001. At present, he is on bail. His bail bonds are cancelled and suretystands discharged. Sd/- Sunil Kumar Sinha Judge Sd/- R.S. Sharma Judge >--. ./- (;3pal