;—78 -S^^Tm^ai, ^W^S, ^wy. ^ _......(L^A.>^°~A-.'A-- •qmW "*MI* gn^r ^raw (4»if-i,«i<w) '•'•••^ 200 & qirtfepiN •roaf•if.featil^n ^affimai^l 3II^[?it1?;1R7 wnsii^rwRra Pratap Gond, Son of Shri Viru Gond, aged about 54 years, resident of Village Bayanar, Police StaUon Bhanupratappur, District Kanker (M.P.) (now Chhattisgarh). The ^ate cf Madhya Pradesh (now ChhatUsgarh), through the Poltee Statton Bhanupratappur, Di^rict Kanker. (Criminal appeal uncfler Section 374 (2) ofthe Cr-P.C.) D.B.: - Hon'ble Shri LC. Bhadoo & Hon'ble Shri Dhirendrdi Mishra. JJ. 19-7.M07:. Shri Pantay Shrivastova, jcounsel for the appellant. Shri G.D. Vasvani, Govt. ^dvocate for Ihe State/ respondent. Oral judgment dictated w\ Das. L.C. Bhadoo. J. 1. This appeal is directed agajn^t the judgment of convteUon and order trf serrtence datsd 22nd August,|2000 passed by the Additfonal Sessfons Judge, Kanker, in S.T. No.15^/98 whereby leamed Additkmd Sesstens Judge after holding the ac4ised/appellant guitty for commiwion of \ SBWMIIfl XI-^C—78 yg^ ^w\v^^, f<iTS\W4, ^'yw'y. t<l*1dl *Hi<* sw^tv R-fi'* 'aan 3;n^r ^H wi?r''ra^? (ijcit^«<<iis() -^ offence under Section 3Q imprisonmentforlife. Hovt of the I.P.C., sentenced him to undergo ever, acquitted co-accused Sonau @ Sonu. 2. The case crf the prosecutjc deceased Maluram gave Bhanupratappur on 2-8-^7 Wednesday, at about 104 gone to attend last rites Bayanar, but till Thursdayl Friday, whereabouts of M^ whereabouts could not be| Patel and Kotwar of villa^ Kanechur went to wllage time Chamraram, Kotwar the body Gf a pereon is lyir) be body of Maluram. 3. Recehnng this report, me after ghrfng noSce Ex.P/2, Maluram. Ctothes <tf (he plan Ex.P/5 was prepared mortem examinafion to the ^bi^cr'41'i 'RP^I '^.'f^^ <^*i^x ^ajRiHsn^T »n, in brief, is that Shw Prasad, nephew of (nerg intimation Ex.P/7 in the Polic®Station to the effect thsrt on 30th July, 1997, |.m. his uncte ^4aluram (since deceased) had c^remony in the house <rf Sonaram <rf viBage |he dkl not retum. Therefore, tomorrow i.e. iluram was searched in village Bayanar but traced. Today moming he met Sarpanch, Kanechur. Number of persons of viltage iayanar and collected the viltagers, at ttiat jaf village Bayanar came and informed that 1g in the water in Vyaparipara. It appears to No.22/97 was r^istered. Stadon House OfRcer, Police Station, Bh^nupratappur, left for sc«>eof occurrence, prepared inquest EX.PO on tte body of ^ieceased were seized under Ex.P/4. Sjte The body <rf Maluram was sent for post- pommunity Heatth Cenfre, Bhanupratappur under Ex.P/8 where Dr. A^. Gota (PW-12) conduded post-mortem, opined that cause of deathj was asphyxia as a resutt of strar^ulatton and death was homteidal i^ nature. He prepared post-mortem report 3^;?OT[^.5^pl^ ^Wdl WllW— siitn.'w wrsn^F'^iipF ^*' BA "^. 200 3'n^r I)H% ( '(WIW^f^RSF Ex.P/fcA. Based on that! registered. <*w!<!!pi^in^t KMt ifa^j, ^'af&fSn^i firet infwmatton report Ex.-P® was 4, After coniptetion <rf the inve^igatton, chaige she^ was ffled against the accused/appeltent don^ with Sonau @ Sonu m the Court <rf Judicial Magistrato, 1 Classj, Bhanupratapiwr, who bi tum commMed the case to the Sessions Jutee Bastar from Where leamed AddWonal Sessions Judge recewed thejcase on transfer for trial. 5. In order to establish the cfiarge against Ihe accused persons the prosecution examined 13 pereons were recorded ui denied material appearing stated ttiat they are ini crime. Statements of the acuised Secfion 313 Cr.P.C. in whteh thsy them in the prosecuUon evklaice, and have been falssly Implic^d In the 6. Leamed AddiUonal Sessio^s Judge after hearing toamed (»unselfor the respecBve partiw, conipcted and sentenced the aeciKed/appellart as aforesakl. However, s^qultted co-accused Sonau @ Sonu ofthei charge under SecUon 3(C ^the I.P.C. 7. We have heard Shri Paiilcij Shrhastawa, teamed coui^el fWit^i appellant and Shri G.D.j Vsewini, Govt. Mvocato for ^ie ^ate/| respondent j j , j 8. Having heaid leamed jut^ment of the trid We tiinre rto Coilrt hav^! 4>unsel for the paiUes, we as weB as evldence inaUiAte 1 a conduston ttat ln! :3^^m^[,9€ s,i^Rjy '^ 3II^.¥I^;iW w an^r -%I|R!- !^-' ;.<:A.^fcii:(a4lll ^Wff ^Rqi*- Wf an^rwRs ( TOiRK^teFsn^r not an iota of evktence to wferiN•maftft^•!^R ^sflmsn^ connect ttie accused wtt ttie crime bi quesBon. It app^irs that (j^iiring invesfigatton PW-1 Phoolbati, wife of the accused/appellarrt, trtwi|ied that after attendng tE®trites cerenwny at Bayams, the appeUant ^ilong with Sonau and deceaaed Maluram came to tfte house of Prat|u>> accic^d, from there in the night Bsetf »,thweafter, accused/Ewellant ahw^ wBh <fid not retwn. Butduring her court ted the vwston <rf the prosecitfiwi. She they toft for some rther Sonau retumed and Maki evklence she has not sui has stated that Maluram did not come to their house. CTher evidence of PW-4 Devlal has been ifessed irto seivfce in order to edabUsh that deceased Maluram was ^een alive just before hfe deatti with the to connert the accused witti the cmne on i, the settted law on the point te ttat tlme accused/appellant In on the baste of last sesn gap between when body dfVne deceased was Ibund and when he was last ssen aVve wtth the seen must be so prc drawn that the accused should not beany lastseen and d^ien must be so small and death and faKt from vrtuch an irresistibte biferenc®cah be author of 8ie crime in questloh. There Bty <rf comlng any thlrd peraon in between was found. The above principte has been lakl down by the ApexfCourt jn the matter <rf B^WRAJ AUAS BODHA AND OTHERSJ Vereus STATE OF JAMMU & K^HMIR reported in (2002) 8 SC& 45. In the matter ofSubhash Chand V». State of Rajasthan rep^rted in (2002) 1 Supreine Court Cas^ 702 the Hon'bte Apex Court t^ekl that: XI-^IC—78 d-cq "•<iqi<?»<i,t$ij)-9'l , ft^l-yy l3|iS?T?lRMi+ ^T •3il^?r sn+ii^ ^-1- 'WI 3^f 1BR; (y,rf^«l<W) ^OTWHfel 3)i^5T ^~- <*w(<'f'jil-i ^MvS ^^Sl <F>14<;l't ^ ajSpT 3l)^[ ".....To const(ute evidence of last seen together, the evidence|must drfinitely permlt ai inference being drawn fiat Ure vicUm and the accused were seen togeUiaj at a point of time in ctose proximity withthetime^ 9. In the mattBr of State nd date <rf commlssfon <rf crime...." »fKamataka Vs. M.V. Mahesh rqwrted In (2003) 3 Supreme Couijt Cases 353 the Hon'bte Apex Court held that: "...... Merely bjeing seen test tog^tor is iwt erwugh. What has to b|a established in a case <rf this nature is d^inite evidence to mdicate that Beena had been done to death of which the respondent Is or must be aware as als^ proximate to the time of beii^ test seentogeUier.)..." 10.<n the present case, E^vtal (PW-4) has stated thert In the house of Balsingh there was some last rltes cerwiony. All the vMagere came there. Maluram was al^o there along wUh Prsdap. They teiok meal at about 12 noon. Theres^er, Maluram teft atong with Prartap. On Friday there was news Vhat Ma(uram has died. Evictence of this wftne»does not inspire confidence f<^ the reason thgt ottier witness namely, FW-3 Laxman tas stated tha| in the last rites ceremony in the house o( Sonuram there was dintier. In the night people took Vnev maal and thereafter they teft. M^luram wa®also present and after taMng his meeA he Mt. RW-3 h^s not stated that accused Pratap was with Maluram. PW-5 Dabsii|gh has sterted that in the nght he along with XI-BC—78 'SvSf "Mi<iiwi,»Tfl+f*is,R«i+fy €) HW^ **41* •V^ 200 3II^?r?il1iF1RT gqr 3n^?T ^qN? j-hnfc- ai^r vsv CySy^s) «iii'l<fi-i'IA-) w^vS iffs^S ^ngR '^sT&Haii^r Makiram, Ratan and village, then he said fti the accused was wtth stated that they saw that they took meal jn (PW-4) has stated Uiat| house in ttie noon. that this wibiess had anj evidence that after tali Pratap and Maluram hs legatly admissibte ev seen alive with the accil his body was found. cannot be connected iruram took meal. HeaskedMaluramtogoto he will come later on. He has not stated that laluram. Therefbre, othsr witnasses havs n<A luram wrilh Pratap. Mweover, they have ^ated night and not in the noon whereas, Devlal Qwy saw Pratap and Maluram at Bdsingh's rt ftom that, in Gross-exambtatton, tt has come iity wlth ttie accused/appetlant. Thereisno meal In the house <rf telsjngh to whteh skte left. Therefore, there is no definite cVnching ice on record that deceased Maluram was Isst ised just btfore his death nearby ptace where snce, based on Uiis evidence, the accused 1 the crime in queslion. ;.t.-;^(,t.:lttjltti^ 11 .Th®trial Court has ate^) relied upon the evklence of PW-10 Samaru regarding motive. Pen^al of the evktence of this wftness reveals ttiat there is nothing to showjthat the accused had mrtive to commtt murder of the deceased. The <^her aspect on which the trial Court has reUed upon is the evidence ^>f PW-7 Shivprasad and PW-11 Prteam <hat Phoolbati, wife of Uie a^cused, toM ttat 8ie deceased was atong wth the accused but PW-1 phoolterti, as has been merttoned eariier, has categorically denied thi^fect. PW-7 Shivprasad and PW-11 Pritram themselves havs not se|en the accussd wiUi the decereed. Ther^ore, in thfe case, there fe r<o evktonce to connect the aectreed wtth tt® crime in quesflon. A<aotidlngly. conwdfon and ^ntenre hnpwed upon •'\ ay -7S T"T -^WKft-l, •iS-^W'W, {^'flWy. ; s^!V ^I R-fW) ^T!3TR?T sh^lcti Bat t!L:!^liia.&t;^ ^iit^ ;a^j sn^r 'vsv; CyS^^si, 200 WIIW ^lfttT 3n^T -^- °hi'IiI<')41-i tiitid'i ii.test <i«i^i< ^? aifgir sn^r the accused/appellant flw commissfon of dfence undar Section 302 of the IP.C,. cannot be su|rtained. 12.1n the resuft, the appeaf succeeds. Cwwictfon and sentence imposed upon the axused/app^llant under Sectton 302 of the I.P.C. are set askte. HeisacquHted^th®sa'dchaI®B-ft is statad that the accused is in detentfon from d|ie data <rf jut^mart i.e. 22ri August, 2000, ttierefore, he be s^ at |iberty forthwith unless requlred to be d^imed in any other case. Sd/- L.C.BHADOO Judge DHIRENDBA MBHRA i Judge