i?v @ HIGH‘COURT OF CHHATTISGARH, BILASPUR Criminai Apyeal No.603 [2002 Somra, s]o Sohaxx Pahadi Korva, aged about 35 years, Occupation Labour, r/o ViHage Kota Gahna Baherapara, District Sarguja (C.G.) APPELLANT Versus The State of Chhattisgarh, Through the Station House Off1cer, Rajpur, Diett. Sarguja (co) RESPONDENT DB: HON’BLE SHRI L.C, BHADOG 85 HON’BLE SHRI SU§IL KUMAR SINHA, JJ. Apyeaxance: Shri Vijay Deshmukh, Counsel for the appellant. Shm' D.K. Gwalre, Govt. Advocate for the State. ORAL JUDGMENT $912200?) Following jmigment of the Court was passed by SUL‘EL KUMAR SINE‘IA, J, §1§ ThiS appeal is directed against the judgment of comziction axld order of sentence dated 24.5.2002 passed by the lst Addl. Sessions Judge, Ambikapur, in Sessions Triai No.124/2001 whereby the appellant has been convicted u/ss 302 & 201 LRC. and sentenced to undergo impxisonment for Hfe and to pay a iine of Rs.1000]v, in default thereof to further undergo RX. for 6 months; 85 RI. for 3 years and to pay a iine of Rs,500,’—, in default thereof, to further undergo RI. for 3 months, with a further direction to run the sentences concunently. t2) The case of the prosecution is that on 28. 1.2001 at about 4 p.m., the deceased namely Smt. Sanjhiya Bai and her husband nameiy Somra (accused/appellant) left. their house saying that they are going to sell milk and they have to realize some money from one Jugiya Seth of Rajpur and after doing this they will go to the in—laws place of the appellant. On 31.1.2001 Ropni Bai (P.\V.6), mother of the appellant went to the forest for picking t 2 gzv C1'.A~No.603 of 2002 wood. Sha saw that the dead body of the dCCEased was lying 1'11 a pit in the forast. Since the a9pellant had also not returned back 'to the house, she went to the Police Statitm and lodged Merg intimation EX.P.14. After receiving the Merg, the 1.0‘ left for the scene of occurrence. The body was exhumed on 01.2.2001 vide EX.P.5. Thereafter, after giving notice (EX.P.1) to the Panchas, he prepared inquest on the body of the deceased under EX.P.2. Site plan was prepared under EX.P.4. Samples of soil near the dead body were collected under EX.P.3. Clothes of the appellant were seized under EX.P.6. Another site plan Ex.P.7 was also prepared. After taking the accused appellant in custody, his memorandum was recorded vide EX.P.9, in pursuance ofwhieh, a piece of stone was seized under EX.P.10. The body was sent for postmortem t /y examination under EXP. l7. The postmortem was conducted by DnPreetam Sai (P.W,13), who prepared his repoit under EXP. 18. He noticed the following injuries on the body of the deceased: (i) the right portion of the chest was cpressed and there was slightly dark colour on it. After dissection, it was detected that clotted blood was present. and 7th, 8th, & 9&1 ribs were fractured; (ii) Nos and upper lip were swollen and the blood was oozing out of them; (iii) There was a contusion on the left elbow joint, it was blackish in colour; (iv) There was an antemortem abrasion on the rigt scapular region which-as stained with blood; There were many abrasions on the right arm d elbow joint extending upto shoulder joint; (vi) Left wrist and palm were sined with blood; (vii) There was antemortem lacerated wound on the left leg admeasun'ng 3cm X 2 cm with clotted l l blood present; (viii) There were antemortem abrasions on the back; (ix) There were many abrasions on the back side of the buttock wry “4-. r, s a, ‘4 om e h w ta 3 Cr.A.N0.603 of 2002 (X) There was a contusion on the right side of th€ back. After disswtion, clotted blood was present there. According to the Autopsy Surgeon, all the injun'es were antemortem in nature. He opined that cause of death was syncope due to severe hemorrhage from right ruptured lung. The death was homicidal 1'11 nature. (3} After completion of usual investigation, the charge sheet was filed in the Court of J.M.F.C., Ambikapur, who in turn committed the case to the Sessions Judge, Ambikapur, from where it was received on transfer by the First Addl. Sessions Judge, who after conducting the tiial, convicted and sentenced the accused/ appellant as aforementioned. i4) Admittedly, there is no direct evidence in this case and the conviction of the appellant is based upon the circumstantial evidence i,e., the evidence of lastly seeing the appellant with the deceased. €53 Learned counsel for the appellant argues that the appellant and the deceased were husband and wife and according to the prosecution, they had left their house for selling milk and going to the market on 28.1.2001 and the dead~body of the deceased was seen in the forest by P.W.6 Ropni Bai on 31.1.2001, therefore, there is a long 11'me gap between the two points of time when the deceased was last seen in the company of the accused and when she was found dead by her mother—m—law namely Ropni Bai (PM/.6). Therefore, a possibility of a third person coming in contact with the deceased cannot be fully ruled out in this case and solely on this circumstance, conviction of the appellant cannot be sustained. {6) On the other hand, learned State Counsel opposes this argument and supports the judgment of conviction and order of sentence passed by the trial Court. . {7) We haveheard Mr. Vijay Deshmukh, learned counsel for the appellant and Mr. D.K. Gwalre, learned Govt. Advocate for the state and have also perused the 1%cords of the sessions case. 4 [%/ Cr.A.N0.603 of 2002 (3) Admittedly, there aye no eye—Mmesses in this case and the conviction of the appella11t is baSed upon the sole circumstance of last seen together. The case of the prosecution is that the deceased and the appellant both had left their house on 28. 1.2001 at about 4 p.131, P.W,5 Lachhu, son of the appellant and P.W.6 Ropni Bai, mother of the appellant were the two witnesses of last seen together. Though the prosecution case regarding last seen together is based upon their evidence, but both these witnesses have turned hostile before the Court. P.W.5 Lachhu has deposed that the appellant is his father and the deceased was his mother. The deceased has died 8-9 months prior to the date of deposition. He has deposed that he cannot say as to how she died. According to him, he has not seen any Marpit between the appellant and the deceased and he had never heard any hue and cry. In para 2 of his evidence, he has deposed that he had never seen quarrel between his mother and father. He had only stated that his mother and father had gone to the market and except this he does not know anything. They had gone to the market at about 1 1 am. This Witness has been declared hostile and 'a lengthy cross examination has been done by the Public Prosecutor but nothing material could be brought in his cross examination. {9) P.W.6 Ropni Bai, mother of the appellant, has also deposed in similar fashion. She has deposed that the appellant. is her son and deceased was her daughter—in-law, who has died one year prior to the date of deposition; she had not seen Mmpit between them, her daughter-in-law has died but she does not know how she has died. She has gone to the police station and told about the death of her daughter-in-law. She has admitted her signature on the Merg intimation EXP. 14. This witness was also declared h6stile by the prosecution and she was also put to a lengthy cross examination by the public prosecutor but nothing material could be brought on record from this witness also. (10) Besides the above evidence, there is evidence of memorandum of this appellant under Ex.P.9, in pursuance of which, a piece of stone was recovered under Ex.P.10. The said piece of stone, alongwith other articles, was sent for chemical i/« 1 examination to Forensic Science Laboratory, Sagar, from where b treport Ex.P.26 was received, but in the said report blood stains \ 5 @ were not found on ths stona It is on this Evidenca only; T116 S6ssions Court has convicted ”The appEHant mamly faking th6 ground of last seen together. (11) It has been laid down by the Apex Court in the matter of Bodh Raj alias Bodha and others -Vs- State of Jammu‘ and Kashmir, Am 2002 SC 3.154 that there is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on the circumstantial evidence, must be fully established They are: (i) the circumstances fmm which the conclusion of guilt is to be drawn should be fully established. The circumstances conceined ‘inust’ 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 s’ay, 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; (iv) they should exclude evely possmle hypothesis except the one to be proved; and (v) 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. About the last seen theOIy, the Apex Court held that the last 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 didicult 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 CaSCS. a Cr.A.N0.603 of 2002 6 Cr.A.N0.603 0f 2002 {12) Almost similar View was again taken by the Apex Court 1'11 the matter of State o Goa -Vs~ Saniag Thakran & arm, (2007 L41 SBR 321. While passing the éaid judgment, the Apex Couxt has also referred to the decision of Badh Raj case (supra) and ‘fmally 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 oiTence 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, (13) If We examine the evidence on record, in light of the above principles, it would appear that even according to the prosecution the deceased and the appellant were last seen together on 28.1.2001 and the dead body of the deceased was found in the forest on 81, 1.2001, therefore, admittedly there is long time gap between the two points of time that is when the deceased was last seen in the Company of the accused/appellant and when the deceased was found dead in the forest. In the facts and circumstances of this case, a possibility of any third person coming in between cannot be fully ruled out in this case. Therefore, we are of the considered opinion that the conviction of the accused appellant, on the basis of sole circumstances of last seen together, cannot be sustained. {14) In the result, the appeal is allowed. The conviction and sentence imposed upon the appellant are set aside. He is acquitted of the charges framed against him‘ It is stated that the appellant u is in jail since 06.2.2001. He be set at liberty forthwith, if not required in any other case; \ Sd/— i ¥\ i 7’ " Sd/— L.C. BHADOO SUNIL KUMAR SINHA Judge I Judge /Rao/ v