(i^ HIGH COURT OF CHHAmSGARH : BILASPUR DB: Hon?ble Shri T.P. Sharma & Hon'ble Shri Manindra Mohan Shrivastava^JJ. APPELLANTS RESPONDENT: Criminal Appeal No.348 of 2005 1. Shivratan Mar, S/o Bholaram Mar, aged 60 years, Occupation- Agriculture, Caste- Mar, 2. Syam Dev alias Sandev, S/o Shivratan Mar, aged 35 years, Occupation- Agriculture, Caste- Mar Both resident of Village- Parsa, P.S.- Kusmai, District Sarguja Versus State of Chhattisgarh Appearance: Shri H.P. Agrawal, counsel for the appellants. Shri Sandeep Yadav, Dy. Govt. Advocate for the State. ORAL-JUDGMENT (Delivered on 8thNovember, 2010) The following iudgment of the Court was delivered bv T.P. Sharma, J. 1. The challenge in this appeal is to the judgment of conviction and order of sentence dated 4.4.2005 passed by learned Sessions Judge, Sarguja (Ambikapur) in S.T. No.453/04, whereby and whereunder learned Sessions Judge, after holding the appellants guilty for commission of culpable homicide amounting to murder of Makardhwaj and concealing the evidence of criminal case in sharing the common intention, convicted the appellants under Section 302 read with Section 34 & Section 201 read with Section 34 of the IPC "^. ^ and sentenced to undergo imprisonment for life under Section 302/34 with fine of Rs.500/-, in default of payment of fme, additional R.I. for 1 year; R.I. for 3 years under Section 201/34 IPC with fine of Rs.500/-, in default of payment of fine additional R.I. for 1 year. 2. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of the appellants, the Court below has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 3. Case of the prosecution, in brief, is that in the inter^ening night of 25th - 26th June, 2004, deceased - Makardhwaj was sleeping in the house of appellants, who are father and son. Appellant- Shyam Dev assaulted deceased- Makardhawaj by axe and caused his death. Thereafter, both the appellants concealed the dead body in their house and finally they secretly disposed of the dead body in the pond. On 29th June, 2004 dead body of deceased - Makardhwaj was found noating in the pond which was seen by villagers. Merg was recorded vide merg intimation (Ex.P-12) at the instance of Mukesh Kumar (P.W.3). The investigating officer left for Scene of occurrence and after summoning the witnesses vide Ex.P-2, inquest over the body of deceased was prepared vide Ex.P-3. Spot map was prepared by investigating officer vide Ex.P-5. Dead body was sent for autopsy to Community Health Center, Kusumi, where, Dr. T. Sai (P.W.5) conducted autopsy vide Ex.P-14 and found following injuries:- External Iniury i. lacerated wound on left side of parietal region of size of 6 cm. x 4 cm. ii. lacerated wound 1 cm. below of first wound of 4 cm. x 3 cm. (^ -/ iii. lacerated wound over left side ofjaw of 5 cm. x 4 cm. iv. swelling over the right side of chest, size 6 cm. x 4 cm. Internal Injur^ i. fracture of left parietal bone and mandible bone was found. Cause of death was coma and death was homicidal in nature. 4. Deceased- Makardhawaj was residing in the house of appellants. Appellant-Shivratan Mar was interrogated by villagers, who made statement before villagers that his son/co-appellant Shyam Dev has committed murder of Makardhwaj and both the appellants have secretly disposed of the dead body which was recorded by the villagers vide panchnama Ex.P-1. During course of investigation, accused Shivratan was taken into custody, he made disclosure statement of articles of the deceased vide Ex.P-7. Same were recovered at the instance of appellant Shivratan vide Ex.P-11. Shivratan also made disclosure statement of axe vide Ex.P-6 and same was recovered at his instance vide Ex.P-9. Blood stained piece of Newad was seized from the house of appellants vide Ex.P-8. Blood stained and plain soil were recovered from the spot i.e. house of the appellants vide Ex.P-10. Axe was recovered vide Ex.P-13. Spot map was prepared by Patwari vide Ex.P-16. Dehati nalishi was recorded vide Ex.P-17 and on the basis of said dehati nalishi, finally, FIR was registered vide Ex.P-19. 5. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure Code, 1973 (in short "the Code"). After completion of investigation, charge sheet was filed before Judicial Magistrate First Class, Ambikapur, who, in turn committed the same to the Court of Sessions Judge, Ambikapur. 'w. 6. In order to prove the guilt of the appellants, prosecution has examined as many as 8 witnesses. Accused were examined under Section 313 of the Code in which they denied circumstances appearing against them, pleaded innocence and false implication in the crime in question. 7. After affording opportunity of hearing to the parties, learned Sessions Judge convicted and sentenced the appellants as aforesaid manner. 8. We have heard learned counsel for the parties, perused thejudgment impugned and records of the trial Court. 9. Learned counsel for the appellants vehemently argued that the case is based on circumstantial evidence of last seen theory and extrajudicial confession of the appellant - Shivratan, but the prosecution has utterly failed to prove the evidence of last seen theory. and extrajudicial confession made by the appellant- Shivratan. 10. On the other hand, learned counsel for the State-respondent has opposed the appeal and su,bmitted that the prosecution has proved its case beyond all reasonable doubt and the learned Court below has rightly convicted the appellants for the alleged commission of offences. 11. In order to appreciate the arguments advanced on behalf of learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. 12. In the present case, homicidal death of deceased -- Makardhwaj as a result of fatal injuries has not been substantially disputed by the .^:^ appellants, otherwise, also established by the evidence of Dr. T. Sai (P.W.5) and autopsy report Ex.P-14, which reveal that fatal injuries were found over the body of the deceased and death was homicidal m nature. ^ ^,' 13. In the present case, conviction of the appellants is substantially based on circumstantial evidence. In case of conviction based on circumstantial evidence, as held by the Apex Court in the matter of C. Changa Reddy Vs. State ofA.P.1, the prosecution is required to adduce evidence and such evidence must satisfying the following tests: i. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; ii. those circumstances should of a definite tendency unerringly pointing towards the guilt of the accused; iii. the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and iv. the circumstantial evidence in order to sustain conviction must be complete and 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 his innocence. 14. In the present case, prosecution has adduced evidence relating to last seen theory of presence of deceased in the house of appellants last time alive and extrajudicial confession made by appellant - Shivratan Mar. AIR 1996 SC 3390 : (1996) 10 SCC193 .^.^,,»»^.,^., 't 11"-"-^ 1 ^. %^Jy/ '%.JVS^^ ./:- -. ^ 15. As per the evidence ofArab Sai (P.W.l), Jeetu Ram (P.W.2), Rangilal (P.W.4) and also Jileshwar Prasad (P.W.7), appellant/accused- Shivratan Mar has made extrajudicial confession before them and villagers that while he was sleeping in his house, at that time, his son Shyam Dev has committed murder of Makardhwaj and both the appellants have secretly disposed of the dead body of Makardhwaj. 16. As per Ex.P-1 and evidence ofArab Sai (P.W.l), Jeetu Ram (P.W.2) 85 Rangilal (P.W.4), appellants Shyam Dev @ Sandev has not made any extrajudicial confession relating to his guilt, but his father, co- appellant -Shivratan has made statement that his son has committed murder of Makardhwaj. If these evidence is accepted as a gospel truth, then even, same cannot be treated as extrajudicial confession made by the person who has committed the offence i.e. by appellant- Shyam Dev and this statement cannot be treated extrajudicial confession for appellant Shivratan, who has not caused homicidal death of Makardhwaj as per Ex.P-1 and evidence of prosecution witnesses. Therefore, in the present case, Ex.P-1 or fact of extrajudicial confession is of no use for drawing any inference against the appellants. 17. As per evidence of Arab Sai (P.W.l), deceased Makardhwaj used to reside in the house of appellants. Rangilal (P.W.4) has stated that after taking meal, Makardhwaj went to the house of appellants. On next day, he was not found in the house of appellants and after 5 days, dead body of the deceased was found in the pond. As per evidence of these witnesses, the deceased has taken meal with Rangilal (P.W.4) in his house at late night. Thereafter, he went from the house of Rangilal for the house of appellants. This shows that deceased was present with Rangilal (P.W.4). These facts may be ^^^€. —^^ t^ 'v^:, .^- "^^•y-^^^ 1 sufficient to prove the fact that, the deceased was present with Rangilal and has proceeded for the house of appellanfs, but these facts are not sufficient to prove the fact that deceaed Makardhwaj had gone to the house of appellants and stayed in the house of appellants in the intervening night of 25-26th June, 2004 when alleged incident took place. 18. These evidence may be sufficient for creating suspicion that on the date of incident, the deceased was in the house of appcllants, but is not sufficient for drawing definite inference that the deceased was present in the house of appellants at the time of alleged commission of offence and that too stayed with the appellants. 19. The evidence adduced on behalf of the prosecution is not sufficient for drawing inference that the appellants are the persons who have committed the murder of the deceased. Suspicion howsoever grave cannot take the place of legal proof and only on the ground that the offence committed is heinous, liability cannot be fastened upon the appellants without any clinching and credible evidence. In case of conviction based on circumstantial evidence, the prosecution is required to prove the complete chain of circumstances sufficient for drawing inference, beyond shadow of doubt, that the appellants have committed the offence and except the appellants, nobody has committed the offence and also exclude the possibility of innocence of the appellants. But in the present case, the evidence adduced on behalf of the prosecution is not sufficient for drawing inference that the deceased was seen last time alive with the company of appellants or deceased was present in the house of the appellants at the time of commission of offence and the appellants have failed to offer any ^ explanation in terms of Section 106 of the Evidence Act. In these .^.^-^"'-.^t... •^.-^' ':-^ '^•, ."??.^- --Ij- w circumstances, the conviction and sentence of the appellants under Section 302 read with Section 34 and Section 201 read with Section 34 of the IPC are not sustainable under the law. 20. While convicting and sentencing the appellants, the learned Court below has not considered fhe aforesaid aspects and the fact that prosecution has not proved the complete chain of circumstances sufficient for warranting conviction and thereby committed illegality. 21. On close scrutiny of evidence adduced on behalf of theprosecution, we are of the considered view that conviction of the appellants for the alleged commission of offence is not well founded and not sustainable under the law. 22. Consequently, the appeal is allowed. Conviction and sentence of the appellants under Section 302 read with Section 34 and Section 201 read with Section 34 of the IPC are hereby set aside and they are acquitted of the charges levelled against them. They be set at liberty at once. The appellants are in custody, they be released, if not required in any other cases. l)raveen Sd/- T.P. Sharma Judge Sd/- IVIanindra Mohan Shrivastava Judge