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2010 DIGILAW 244 (CHH)

Jethu v. State of M. P.

2010-10-07

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2010
Judgment SUNIL KUMAR SINHA, J. (1) This appeal is directed against the judgment dated 12-9-1991 passed in Sessions Trial No. 258/ 90 by the First Additional Sessions Judge, Raipur, whereby, the appellant has been convicted u/S. 302, IPC and sentenced to undergo imprisonment for life. (2) The facts, briefly stated, are as under :- Deceased - Santosh was the brother-in- law (Jija) of the appellant. On 27-7-1990 his dead body was found in a field in outer area of village Gogaon. A merg intimation (Ex. P/13) was lodged by village-Kotwar- Kanhaiyalal (P.W 4). The Investigating Officer reached to the place of occurrence, gave notice (Ex. P/14) to the Panchas and prepared inquest (Ex. P/12) on the body of the deceased. The dead body of the deceased was sent for post-mortem to D. K. Hospital, Raipur. The post-mortem examination was conducted by Dr. D. C. Jain (P.W. 15).The post-mortem report is Ex. P/10. He noticed following external injuries on the body of the deceased :- (i) Abrasion, 8 inch x 4 inch on the clevicular region; (ii) Abrasion'2 inch x 1 inch on the" right hypochondria;'1' (iii) Lacerated wound 2 inch x 1 inch x bone deep oh the right temporal region and (iv) Contusion, 4 inch x 2 inch on the right side of the face. On internal examination, he found that there was fracture in skull bone and huge amount of blood was present in brain. There was injury on the brain also. He opined that all the injuries were ante-mortem and were caused by hard and blunt object. The injury on the head was sufficient to cause death in ordinary course of nature. The cause of death was coma due to injury to the brain and it was homicidal in nature. Till the post-mortem examination, the dead body of the deceased was not identified. Later on, on the basis of wrist-watch, kurta and ring, it was identified that the body which was found on 27-7-90 was that of deceased-Santosh, who was missing since night of 25-7-1990. The case of the prosecution is that the deceased had developed illicit relations with his sister-in-law (Bhabhi-Chandrika Bai) and the appellant was unhappy with the said act of the deceased. The deceased and his wife Ramkunwar Bai (P.W. 11) had come to the house of the appellant. The case of the prosecution is that the deceased had developed illicit relations with his sister-in-law (Bhabhi-Chandrika Bai) and the appellant was unhappy with the said act of the deceased. The deceased and his wife Ramkunwar Bai (P.W. 11) had come to the house of the appellant. On 25-7-1990, after taking the meals, the appellant took the deceased with him for a visit. They went to village Gogaon to the house of Derharam (P.W. 2) who was friend of the appellant. They remained there for sometime and thereafter they returned for their village but the appellant alone returned to his house. When his sister Ramkunwar Bai asked about her husband, he said that he has gone to Pandri. On the next day i.e. on 26-7-1990, the appellant went to house of Derharam (P.W. 2) and made extra-judicial confession before him that he has committed murder of his brother-in-law Santosh by assaulting him by stone. In further investigation, the appellant was taken into custody on 31-7-1990 and his memorandum statement (Ex. P/1) u/S. 27 of the Evidence Act was recorded and stone was seized at the instance of the appellant vide Ex. P/3. On another memorandum statement (Ex. P/2) recorded on 31-7-1990, a shirt of the appellant was seized vide seizure memo Ex. P/4. After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate First Class Raipur, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the First Additional Sessions Judge, Raipur, who conducted the trial and convicted and sentenced the appellant as aforementioned. Admittedly, there are no eye-witnesses to the incident and the conviction of the appellant is based on circumstantial evidence. These circumstances are of last seen together and extra-judicial confession of the appellant before Derharam (RW. 2). (3) MR. Devershi Thakur, learned counsel appearing on behalf of the appellant, argued that none of the circumstances were proved against the appellant so as to hold him guilty of the offence punishable u/S. 302, IPC. He submitted that looking to the long time gap between the last seen and the dead body recovered, the circumstance of last seen together cannot be said to be incriminating in the facts and circumstances of the case. He submitted that looking to the long time gap between the last seen and the dead body recovered, the circumstance of last seen together cannot be said to be incriminating in the facts and circumstances of the case. He also argued that the evidence of extra-judicial confession made before Derharam (P.W. 2) appears to be doubtful as Derharam was not a reliable witness. (4) On the other hand, Mr. J. A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (5) IN Dhananjoy Chhatterjee v. State of W.B. (1994) 2 SCC 22 : (1995 AIR SCW 510) the Supreme Court held "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 also that all the circumstances so established should be a conclusive 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 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." (6) IN Bodh Raj alias Bodha v. State of Jammu and Kashmir. AIR 2002 SC 3164 : (2002 Cri LJ 4664), the Supreme 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 : 1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. They are : 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) they should exclude every possible hypothesis except the one to be proved; and 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. About the last seen theory, the Supreme 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 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 a guilt in those cases. Almost similar view was taken by the Supreme Court in State of Goa v, Sanjay Thakran, 2007 (4) SBR 321 : (AIR 2007 SC (Supp) 61) by taking note of the decision of Bodh Raj (supra). About the last seen, the Supreme Court has taken same views in State of U. P. v. Satish, (2005) 3 SCC 114 : (AIR 2005 SC 1000 : 2005 Cri LJ 1428), Ramreddy Rajesh Khanna Reddy v. State of A. P. (2006) 10 SCC 172 : (AIR 2006 SC 1656) and State of Goa v. Pandurang Mohite, AIR 2009 SC 1066. (7) Now we shall examine the evidence of last seen in light of the principles laid down in the above judgments. (8) RAMKUNWAR Bai (P. W. 11) deposed that appellant-Jethu is her brother. (7) Now we shall examine the evidence of last seen in light of the principles laid down in the above judgments. (8) RAMKUNWAR Bai (P. W. 11) deposed that appellant-Jethu is her brother. On the fateful day, she had gone to the house of appellant for taking meals along with her husband (deceased). The appellant took her husband to some place for visit. The appellant returned in the night but her husband did not return with him. She asked from the appellant about her husband, on which, he told that her husband had gone to Pandri on a Rickshaw. She started weeping. She remained in the night in the house of the appellant. In the morning, she went to the house of Kriparam, her other brother. Even after the search, they could not find the deceased. She also sent Kriparam to Nagpur. She further deposed that when she send the appellant to make search of the deceased, the appellant denied to make his search. Later on, a watch, a ring and a kurta was identified in police station by her brother-in-law (jeth) which was that of her husband and then she came to know that her husband had died. The above evidence of RAMKUNWAR Bai (P.W. 11) cannot be the evidence of last seen together, because according to the prosecution, the appellant and the deceased had gone to the house of Derharam (P.W. 2). According to Derharam (P.W. 2), appellant and his brother-in-law both came to his house in the night. They were in drunken condition, he offered them meals, but, they denied. He requested them to stay in his house in the night but they did not stay there and thereafter all of them went to a betel-shop, from where the appellant and the deceased went towards Ashok Nagar. If the evidence of Derharam (P.W. 2) is taken to be true, he saw the deceased in the company of the appellant in the night of 25-7-1990 and thereafter the deceased was not seen alive and his dead body was found in a field in the outer area of village Gogaon. If the evidence of Derharam (P.W. 2) is taken to be true, he saw the deceased in the company of the appellant in the night of 25-7-1990 and thereafter the deceased was not seen alive and his dead body was found in a field in the outer area of village Gogaon. If we reconcile all this, it is clear that RAMKUNWAR Bai (P.W. 11) was not the witness of last seen and according to the evidence of Derharam there was a gap of about two days in between the period when the deceased was seen alive in the company of the appellant and his dead body was seen by village Kotwar- Kanhaiyalal (P.W. 4). The time gap between the point of time when the appellant and the deceased were seen last alive and the deceased was found dead is long and a possibility of other person coming in between cannot be fully ruled out. According to RAMKUNWAR Bai (P.W. 11), the appellant had given immediate explanation to her that her husband had left his company saying that he is going to Pandri and he had gone on a rickshaw. Therefore, this solitary circumstance of last seen together, in the present facts and circumstances of the case when the time gap is reasonably long, cannot be said to be incriminating against the appellant. Now we shall examine the evidence of extra-judicial confession. (9) DERHARAM (P.W. 2) deposed that the appellant made extra-judicial confession before him in the night of 26-7-1990. His 161 statement was recorded on 31-7-1990. In between this period he did not disclose this fact to any body. In the cross-examination, he admitted that he was taken by the police and was detained in police station for 3-4 days. He further admitted that he was scolded and threatened by the police in the police station. He became frightened. In further cross- examination, he deposed that he was. taken by the police on Friday and he gave his statement in the night of the said day. Hi,s, statement was again recorded on the next 4ay. His both statements were reduced into writing. He further added that on Wednesday, the appellant and his brother-in-law had visited his house. On Friday the appellant was caught by the police and on the same day, he was also taken to the police station. He claims to be the friend of the appellant. His both statements were reduced into writing. He further added that on Wednesday, the appellant and his brother-in-law had visited his house. On Friday the appellant was caught by the police and on the same day, he was also taken to the police station. He claims to be the friend of the appellant. The above evidence of this witness shows that even after knowing about the alleged offence committed by the appellant, as he claims, on 26-7- 1990, he did not disclose the same prior to 31-7-1990 and the disclosure was made by him when he was detained in the police station for 3-4 days and he was threatened by the police. Why the police will detain a witness like that and why he will be threatened? This shows that his evidence about confession was not voluntary and the same was given under pressure and threats of the police. All this create a shadow of doubt on the testimony of this witness and we afraid to rely on the evidence of extra-judicial confession allegedly made before this witness by the appellant. (10) ACCORDING to the prosecution, the motive for commission of murder of the deceased was, that the deceased had developed illicit relations with Chandrika Bai who was daughter of the elder brother of father of appellant (Tauoo), and the appellant was unhappy .on account of all this. They were residents of village Bhandarpur. Wife of the deceased (Ramkunwar Bai-P.W. 11) deposed that the appellant was residing separately in Raipur since last 20 years.. Other brother of the appellant namely Kriparam was also residing separately in Raipur since last 10 years and she was residing with,the deceased (Santosji) in Nagpur since last 4 years. This shows that the appellant was not in touch with his family since last 20 years and even if there was illicit relations with the deceased and Chandrika Bai who was daughter of the uncle of the appellant, it would hardly be a motive for commission of murder of the deceased. Moreover, there is no evidence of such motive in this matter and all this we find in the introductory part of the memorandum statement of the appellant recorded u/S. 27 of the Evidence Act, which cannot toe admissible in evidence for any purpose, particularly for proving the motive of the crime. Moreover, there is no evidence of such motive in this matter and all this we find in the introductory part of the memorandum statement of the appellant recorded u/S. 27 of the Evidence Act, which cannot toe admissible in evidence for any purpose, particularly for proving the motive of the crime. For the foregoing reasons, the conviction and sentence awarded to the appellant u/S 302, IPC cannot be sustained and the same deserves to be set-aside. (11) ACCORDINGLY, the appeal is allowed. The conviction and sentence awarded to the appellant u/S. 302, IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is in jail. He be set at liberty, forthwith, if not required in any other case. Appeal allowed.