(7 HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri Rajeev Gupta, C.J. 8a Hon’ble Shri Sunil Kumar Sinha J. Criminal Appeal No. 717/ 2006 Sudhram Madiya Vs. State of Chhattisgarh Criminal Appe'al No.718/2006 Ramuram Vs. State of Chhattisgarh <§ ‘ ~ a Criminal Appeal No.7 19/ 2006 Budhram Madiya Vs. State of Chhattisgarh JUDGMENT For consideration §d/= ‘Smmil Kumar Shim HON’BLE SHRI JUSTICE RAJEEV GUPTA 9 W\\ Sdl Sd/ SUNIL KUMAE SINHA ' udge J HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri Raieev Gupta, C.J. 85 Hon’ble Shri Sunil Kumar Sinha, J Criminal Appeal No. 717 of 2006 APPELLANT Sudhram Madiya, son of Sonsaj, aged about 26 years, Occupation Agriculture res1dent of Vlllage A1rpund Dulempara P S Mardum Dlstt Bastar (C G) Versus V f RESPONDENT _ State of C.G. Through RS. Mardum, Distt. Bastar (C.G.) Criininal Agpeal No. 71s cf 2006 APPELLANT Ramuram, son of Dhanaru, aged about 4O years, Occupation Agriculture, resident of Village Airpund Dulempara, P.S. Mardum, Distt. Bastar (C.G) Versus RESPONDENT State of C.G. Through P.S. Mardum, Distt. Bastar (C.G.) Criminal Appeal No. 7 19 of 2006 APPELLANT Budhram Madiya, son of Lalsai Madiya, , aged about 22 years, Occupation Agriculture, resident of village Airpund Dulempara, P.S. Mardum, Distt. Bastar (CG). Versus RESPONDENT State of C.G. Through RS. Mardurn, Distt. Bastar (C.G.) (APPEALS UNDER SECTION 374 (2l OF THE CODE OF CRIMINAL PROCEDURE) 2 @ Cr.A.No.71 7/2006‘r Cr.A.7 1 8/2006 & Cr.A.7 1 9/2006 Appearance: Mr. Jameel Akhtar Lohani, Counsel for the appellants. Mr. Ashish Shukla', Govt. Advocate, for the State. JUDGMENT (15 .o7.2009) Following judgment of the Court was delivered by Sunil Kurnar Sinha, J, ‘ r (1) The appellants have been convicted u/ ss 302 read with 34 a f 201 IPC and sentenced to undergo imprisonment for life and & R.I. for§two years respectively by the sessions Judge, Bastar at Jagdalpur in Sessions Trial No.7/2006 on 13.09.2006. (2) The facts, briefly stated, are as under: Butu Ram (P.W.1) is son of deceased Budhu Madiya. He lodged a report on 18.11.2005 that his father was called on 12. 1 1.2005 in day time in a Mandli (group of religious persons) by appellants Budhu Ram and Sudh Ram. He was assaulted in Mandli on the allegations that he practices witchcraft. Thereafter, he was left in the house. In the night at about 10.00 p.m., appellants Ramu Ram, Budh Ram and Sudh Ram came to his house and took his father again. Since then, he is missing till date. On 21.1 1.2005, the dead body of the deceased was found in hidden condition in a forest area, on which, Dehati Nalishi EX.P.4(A) and the First Information Report (EX.P.5) were recorded. The inquest on the body of the deceased was prepared under EX.P.4 and the Merg intimation was registered under EX.P.7. The dead body of the deceased was sent for its postmortem to Primary Health Center, Barsur, where the postmortem examination was conducted by Dr. P. S. Komre, (P.W.6) who prepared his report (EX.P.18). The autopsy surgeon noticed external injuries on” the face which were antemortem in nature. The neck of the deceased was tied with 3 Cr.A.No.717/2006. Cr.A.718/2006 & Cr‘A.719/2006 § towel. He opined that the cause of death was asphyxial shock, as a result of failure of respiratory track due to compression of neck and it was homicidal in nature. After completion of the usual investigation charge sheet was filed in the Court of J.M.F.C., Jagdalpur, who in turn r committed the matter to the Sessions Court, Jagdalpur, where the trial was conducted and the appellants were convicted and sentenced as aforementioned. ‘ (3) Admittedly, there is no direct evidence in this case and the conviction of the appellants is based on circumstantial evidence i of last seen together. The evidence of last seen is based on the testimon§ of the s6n of the deceased namely Butu Ram (P.W. 1). (4) Mr. Jameel Akhtar Lohani, learned counsel appearing on behalf of the appellants argued that Butu Ram (P.W.l) is an unreliable Witness, therefore, the evidence of last seen put—forth by him, cannot be relied on. He also argued that even if his evidence is held to be reliable on the point of last seen, the time gap between the date on which the deceased was allegedly last s'een with the appellants and the date on which the dead body was recovered is so long that such evidence would not be incriminating against them. (5) On the other hand, Mr.Ashish Shukla, learned Govt. Advocate, appearing on behalf of the State opposed these arguments and supported the judgment and order passed by the Sessions Court. 4 Cr.A.No.7l7/2006, Cr.A.7I8/2006 & Cr.A.719/2006 (6) We have heard learned counsel for the parties at length and have also perused the records of the Sessions Case. (7) In the matter of Dhanan'o Chhatter'ee —Vs- State o W.B, (19941 2 SCC 22 the Apex Court held that “In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but I also that all the circumstances, so established should be of a conclusive nature and consistent only With the hypothesis of the guilt of the accusedl Those circumslances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof.” '(8) In Bodh Rai alias Bodha and others —vs- State of Jammu and Kashmir AIR 2002 SC 3164, the Apex Court laid down that there is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: 5 M Cr.A.No.717/2006, Cr.A.718/2006 & Cr.A.719/2006 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) v: 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. they should exclude every possible hypothesis except the one to be proved; and <§ About the ast seen theory,’ the Apex Court held that the last l seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the 'author of 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 accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. (9) Almost similar View was again taken by the Apex Court in the matter of State of Goa —vs- Sanjay Thakran & ann, (2007 (4) SBR 321. While passing the said judgment, the Apex Court has also referred to the decision of Bodh Raj case (supra) and finally about the circumstance of last seen together, again it was reiterated that it 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. These 3 principles have ‘been further reiterated in many decisions including the decisions of Manivel and others -vs- State of Tamil Nadu, {2008) 12 SCC 748 and Vithal Eknath Adlinge —vs- State ofMaharashtra 2009 AIR SCW 1831. 6 Cr.A.N0.7I7/2006, Cr.A.718/2006 & Cr.A.719/2006 (10) Now we shall analyze the evidence of prosecution on these points. ' (11) P.W.‘1 Butu Ram deposed that his father was called in the day time in Mandli on the pretext that he plays witchcraft. He was present in the house when his father was called. He had also gone to Mandli. The appellants had assaulted his father by Danda, hands and fists. Many other persons were present in the Mandli. His father was assaulted by a knife on his cheek. Thereafter, the appellants left his father to his house. In the night at about 10.00 p.m., the appellants again came to his house and took his father with them. His father did not return Cr.A.No.7l7/2006= Cr.A.718/2006 & Cr.A.719/2006 in the night, on which, he organized a village Panchayat in the morning and in the said Panchayat, the appellants made extra judicial confession. Thereafter, he went to the Police Station and lodged the report. Butu Ram (P.W.1) was confronted with his case diary statement EX.D.1 as the said statement does not contain the facts relating to extra judicial confession made by the appellants in village Panchayat or at any different place. He could not explain as to why these facts have not been mentfdiied in his case diary statement. He stated that he had told all this to the Police. s \ (12) Ram Prasad (P.W.3) is a Witness of Panchayat. He deposed that he was present in the Panchayat. The appellants were also present in Panchayat. In Village Panchayat Butu Ram ‘ (P.W. 1) stated that somebody has kidnapped his father. Hearing this, the Panchayat people suggested him to report the matter in police station. ‘ r ‘ (13) In appreciation, we find that the evidence relating to extra judicial confession in village Panchayat was an exaggeration on the part of Butu Ram (P.W.1) as the same was an omission in his case diary statements (Ex.D-1). Admittedly, the incident took place on 12.11.2005, the report was lodged by P.W.1 Butu Ram on 18.11.2005 and thereafter, the dead—body of the deceased was found on 21.11.2005. P.W.1 Buturam has not explained as to why the report was lodged after a delay of about six days. P.W.3 Ram Prasad has not been declared hostile by a l 8 Cr.A.No.717/2006 Cr.A.718/2006 & Cr.A.719/2006 the prosecution. According to his version, P.W.1 Buturam himself said in Panchayat that somebody has kidnapped his father. He did not mention that the appellants, who were present in the Panchayat, made extra judicial confession. Therefore, on account of the fact that P.W.1 made allegations regarding extra judicial confession by the appellants in village Panchayat for the first time ‘before the Court, and his such allegations are not supported by independent witness Ram Pras‘e‘ld’ (P.w.3), and further that according to P.W.3, he himseh mentioned that his father was kidnapped by somebody, we do t not rely on the testimony of Buturam (P.W.1) on the point that his father was taken by the appellants in the night of 12.11.2005 and thereafter he was not seen alive and his dead body was found on 21.11.2005. ¢ (14) Admittedly, in the present case, the deceased was alleged to be taken by the appellants on 12.1 1.2005 and his dead body was found on 21.1 1.2005. It was found in hidden condition at a distant place from the village. Therefore, even assuming that the deceased was allegedly seen in the company of the appellant on 12.11.2005 by P.W.1, the time gap between the deceased seen alive and the discovery of his dead body is of more than 9 days and in such a situation, a possibility of any person other than the appellants coming in between, cannot be fully ruled . v l out and in absence of any other positive evidence to conclude ‘l l that the appellants and the deceased were last seen together, ’ i3 the conviction on thisevidence only cannot be sustained. 9 4@ Cr.A.No.717/2006 Cr.A.71 8/2006 & Cr.A.719/2006 (15) For the foregoing feasons, the appeals are allowed. The conviction and sentence awarded to the appellants are set aside. They are acquitted of the charges framed against them. The appellants are continuously in jail since 22.11.2005. They be set at liberty forthwith, if not required, in any other case. ¥.¥¥. V .l a Sd/~ SUNIL KUMP-R SINHA ‘ Judge‘ R‘ao