RESPONDENT: Present: Mr. R.K. Jain, counsei for the apbellant. Mr. Sanjeev Kumar Agrawai, Panei Lawyer for the State/respondent. HIGH COURT OF CHHATTISGARH BILASPUR Criminal Appeal No.876 of 2005 Caste Halba aged about 22 years R/o Kakrel, P.S. Mahamaya, District Durg C.G. Versus The State of Chhattisgarh Through P.S. Mahamaya‘, District Durg C.G. ' {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure} Division Bench: - Hon’hle Mn T.P. Sha‘rma and .Hon’bie Mr. R.L. Jhanwar, JJ T.P. Sharma, J: - 1. ORAL JUDGMENT (1-3—2011) Challenge in this appeal is to the judgment of conviction & order of sentence dated 28—10-2005 passed by the Additional Sessions Judge, Balod in Sessions Trial No.164/2005, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Kum. Sagan Bai, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.1,000/-, in default of payment of fine to further undergo Rl for one year. . Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. As per case of the prosecution, on account of love affair and physical relation of the appellant with Kum. Sagan Bai (since deceased), Sagan \Bai was carrying pregnancy of 4-5 months, on 15-3—2005 Sagan Bai was seen last time in the company of the appellant near the field of Kachra Bai (PW-1), thereafter on second day morning dead body of Sagan Bai was found in the forest. Merg was recorded vide Ex.P-12 by Halal Khor (PW—12) and on the basis of merg and enquiry, FIR was recorded vide APPELLANT: Ruman Lal Bhuaayr S/o Shriram Bhuaayr, (ln Jail) Ex.P-18. The Investigating Officer left for the scene of occurrence ‘and after summoning the witnesses vide Ex.P-17, prepared inquest over the dead body of the deceased vide Ex.P-14. Spot map was prepared vide EXP-13. Photographs were taken vide Articles A, B, C & D. Dead body was sent for autopsy to Government Doctor, Chikhlakasa, Dallirajhara ‘vide Ex.P-3A. Autopsy Was conducted by team of doctors namely, Dr B.R. Sahu (PW—5) & Dr. (Smt.) S. Sahu vide EXP-3 and found one ligature over neck of the deceased, neck was tied by ligature i.e. dupatta and ligature mark was found below the ligature. The deceased was pregnant. Mode of death of the deceased was asphyxia as a result of strangulation by dupatta and death was homicidal in nature. Patwari prepared spot map vide Ex.P-5. Viscera and mark sheet of the deceased were seized vide Exs.P-6 & P—10. Seized articles were sent for chemic‘al examination vide Ex.P—1 ‘l. . Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed against W the appellant before the Court of Judicial Magistrate First Class, Balod " who committed the case to the Court of Sessions, Durg, from where learned Additional Sessions Judge received the case on transfer for trial. . In order to prove the guilt of the accused, the prosecution has examined as many as fifteen witnesses. The accused was examined under Section 313 of the CrPC» in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. . After affording opportunity of hearing to the' parties, learned Additional Sessions Judge, convicted & sentenced e appellant as aforementioned. . We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. . Mr. R.K. Jain, learned counsel for the appellant, submits that conviction of the appellant is based on circumstantial evidence. ln order to convict an accused based on circumstantial evidence, the prosecution is required to prove the complete chain of circumstances so as to unerringly point towards the guilty of the accused. ln 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 also that all F th the circumstances so established should be of a conciusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances 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 innocen'ce of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of‘bonviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof. Learned counsel further submits that in the present case, as per evidence of the prosecution, Kachra Bai (PW-1) is witness of last seen, but her evidence does not inspire confidence and is not trgstworthy. Other witnesses Phool Singh (PW-2) & Shiv Prasad (PW-3) have seen the appellant while he was coming from the forest opposite to the direction where dead body of the deceased was found. Mangal‘Singh (PW—6) is hearsay witness relating to pregnancy of the deceased through the appellant. Likewise, evidence of Smt. Dheliya Bai (PW—14) does not inspire confidence and is not trustworthy her evidence is self-contradictory to her previous statement recorded under Section 161 of the CrPC Ex.D-1. Even she has not stated anything relating to pregnancy of the deceased to any person, but the police has recorded her statement without any knowledge of the fact that this witness is having knowledge about pregnancy of deceased Sagan Bai. Learned counsel also submits that in the present case, evidence adduced on behalf of the prosecution may be sufficient for casting suspicion that the appellant may have committed the offenceon account of his illicit relationship, but same is not sufficient for conviction of the appellant that too for commission of heinous offence of murder. Learned counsel placed reliance in the matter of Govind Lal & another v. State of C.G.1 in which this Court has held that last seen theory is a weak type of evidence, but if it is proved and if the time gap between last seen the deceased in the'company of the accused and commission of the offence or death of the deceased is so short to exclude the possibility of third “person between the accused & the deceased, that may be sufficient for drawing inference that the accused who was in the company of the ~w i 1 2010 (2) c.G.L.J. 122 (DB) i i i (Q deceased is the person who has committed the homicidal death of the deceased. 9. On the other hand, Iearned State counsel opposes the appeal and submits that conviction of the appellant is based on circumstantial evidence. The appellant was having motive for commission of offence l on account of pregnancy of the deceased. The deceased was seen last time alive in the company of the appellant and‘thereafter her dead body was seen on second day, time gap between last seen the deceased in the company of the accused and recovery of dead body is so short and sufhcient to exclude the possibility of third person between the accused and the deceased. Learned State counsel further submits that the trial Court has rightly convicted & sentenced the appellant as afofementioned. ‘ 10.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11.ln the present case, homicidal death of deceased Kum. Sagan Bai as a 1‘ result of strangulation by dupatta of the deceased has not been substantially disputed on behalf of the appellant, otherwise also, it is established by evidence of Dr. B.R. Sahu (PW-5) and autopsy report EX.P-3 that death/of the deceased was homicidal in nature. 12.As regards complicity of the appellant in the crime in question, the prosecution has tried to establish following circumstances against the 1" appellant: — (1) The‘ appellant was having physical “relation with deceased Sagan Bai. ‘ (2) As a result of such physical relation, Sagan Bai conceived and was carrying pregnancy of 4-5 months. (3) On 15—3—2005 the appellant & the deceased were present near the field of Kachra Bai (PW-1) and thereafter they proceeded towards the forest. (4) In the evening time, the appellant alone returned from the forest. g i (5) Sagan Bai did not return back to her house. (6) On second day, dead body of the deceased was found in the forest. Kx. t (7) Death ofSagan Bai was homicidal in nature. n .5: 13.ln order to convict an accused on the basis of circumstantial evidence, as heid by the Supreme Court in the matter of Kusuma Ankama Rao v. State of A.P.2 in case of conviction based on circumstantiai evidence, the prosecution is required to satisfy the following circumstances, (i) the circumstances from which the conciusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may be’ established; (ii)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; (iii) the circumstances should be of a conclusive nature and tendency; (ivlthey should exclude every possible hypothesis except the one to s be proved;and (v) there mustrbe a chain of evidence so complete as not to leave any l (kg z 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. 14.Conviction of the appellant is substantially based on last seen theory. As per evidence of Kachra Bait (PW-1), while she was working in her field, she saw that the appellant & the deceased were standing beside her :- fleld, thereafter they proceeded towards the forest, the appellant was hiding himself while he was going towards the forest, on that day, Sagan Bai did not return back to her house and on second day, her dead body wasfound in the forest. Defence has Cross—examined this witness at V length and in para 5 of her cross-examination she has deposed that on account of height of bund as she was not in a position to see the appellant, but the deceased was moving upon the bund, therefore, she has seen the deceased while she was going towards the forest. Evidence of this witness, especially paras 1, 2, 3 & 5, reveals that the appellant & the deceased were present near her field and thereafter they proceeded. But her evidence further reveals that she is not sure whether the appellant has also proceeded towards the forest with the deceased ornot, because the appellant was not visible while he was going besides the heighted bund. l , 2 2008 AIR sow 4669 i i l 15.Phool Singh (PW-2) & Shiv Prasad (PW-3) have deposed that on the fateful day at about 4 p.m. while they were coming from forest they saw that the appellant was also coming from the forest and he went towards his house. As per their evidence, on second day dead body of the deceased was found in the forest. Phooi Singh (PW-2) has deposed in para 6 of his evidence that direction of the forest from where the appeiiant was coming and direction of the forest where dead body of the deceased was found are in opposite directions. Evidence of Kachra Bai (PW-1), Phooi Singh (PW-2) & Shiv Prasad (PW—3) are not sufficient for drawing inference that the appeiiant & the deceased had gone towards the forest and that Kachra'Bai (PW-1) has seen the deceased alive last time in the company of the appellant. 16.As rég‘érds last seen theory, last seen theory is a weak type of evidence, but if it is proved and if the time gap between last seen the deceased in k the congpany of the accused and commission of the offence or death of the deceased is so short to exclude the possibility of third person between the accused & the deceased, that may be sufficient for drawing inference that the accused who was in the company of the deceased is the person who has committed the homicidal death of the deceased. 17.Definitely, evidence of last seen is a week typeof evidence, but if it is proved and corroborated, same may be sufficient for conviction. ln the present case, the prosecution has failed-to prove the evidence of last seen. 18.As regards the question of motive, evidence of Mangal Singh (PW-6) is hearsay evidence. He was informed by Sant Kumar and the prosecution has not examined Sant Kumar. Likewise, evidence of Smt. Dheliya Bai (PW-14) reveals that she was informed by deceased Sagan Bai one day before the incident that she was pregnant through the appellant, .but as per para 4 of her evidence and her statement recorded under Section 161 ofthe CrPC Ex.D—1, she was informed by Sagan Bai 15 days prior to the alleged incident. Even otherwise, as per para 6 of her evidence, she has not stated the factum of pregnancy of the deceased through the appellant to any person, but for the reasons best known to the investigating agency, the investigating agency has recorded her statement which itself creates doubt upon her testimony. mt i 19.ln case of conviction based on circumstantial evidence, as held by the Supreme Court in the matter of C. Changa Reddy v. State of A.P.3, the prosecution is required to adduce evidence and such evidence must satisfy the foilowing tests: - 1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly estabiished; 2. those circumstances should of a definite tendency unerringly pointing towardsthe guitt of the accused; 3. 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 4. '4‘ we 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 o‘nly be co‘nsistent with the guilt of the accused but should be inconsistent with his innocence. 20.ln the present case, the prosecution has failed to establish any‘of the circumstances against the appellant. in absence of any circumstances, conviction & sentences of the appellant under Section 302 of the IPC is not sustainable under the law. 21.Consequently, the appeal is allowed. Conviction & sentences of the appellant under Section 302 of the IPC are hereby set aside and the appellant is acquitted of the said charge. He be set Imerty forthwith, .if xi’’tiefgred case. Sd/— :angthger I 5w. R.L. Jhanwar '7 T- P Sharma \»\Juqge i ‘2 Judge 3 AIR 1996 SC 3390 : (1 996) 10 SCC 193