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2014 DIGILAW 199 (CHH)

Diyar v. State of C. G.

2014-05-05

CHANDRA BHUSHAN BAJPAI, SUNIL KUMAR SINHA

body2014
JUDGMENT Sunil Kumar Sinha, J. 1. These appeals are directed against the judgment dated 25th of October, 2008, passed in Sessions Trial No. 133/2008 by the 11th Additional Sessions Judge, Raipur (CG). By the impugned judgment, the appellants have been convicted under Sections 302 and 201, both read with Section 34 IPC, and sentenced to undergo imprisonment for life and fine of Rs. 1000/- and R.I. for 3 years and fine of Rs. 500/-, respectively, with default sentences under each count with a further direction to run the sentences concurrently. The facts, briefly stated, are as under:-- 1.1. On 16.05.2008 at about 8.45 am, Rajkumar Pandey (PW-1), lodged Merg Intimation (Ex. P/1) that he had seen dead body of the deceased in a dry well in Dixit Bada. 1.2. The Investigating Officer reached to the place of occurrence, gave notice (Ex. P/2) to the Panchas and prepared inquest (Ex. P/3) on the dead body. The dead body was sent for postmortem. The postmortem examination was conducted by Dr. Rajkumar Singh (PW-11), who found following injuries on the dead body of the deceased: i. Abrasion of 6 x 2 cm, bluish in colour on right thigh; ii. Abrasion of 7 x 5 cm, bluish in colour on right thigh; iii. Abrasion of 3 x 2 cm, bluish in colour on lower portion of right leg; iv. Abrasion of 4 x 0.5 cm, bluish in colour on lower portion of left thigh; v. Abrasion of 1.5 cm, bluish in colour on left elbow; vi. Abrasion of 7 x 2 cm, bluish in colour on left portion of waist; vii. Bluish mark of 4 x 5 cm on the left portion of chest; viii. Multiple abrasions, bluish in colour in the area of 11 x 3 cm on the right forearm; ix. Lacerated wound of 1 x 0.5 x 0.5 cm on the left toe; x. Lacerated wound of 2 x 0.5 x 0.5 cm on the lower portion of the left leg; and xi. Lacerated wound of 4 x 1.5 cm, bluish in colour on front portion of skull. On internal examination, it was found that there were fractures over temporal and parietal bones. Corresponding muscles were also injured. There was also a depressed fracture on the right frontal region, and a fracture over right temporal bone. There were also fractures over right 2nd, 3rd, 4th, 5th and 6th ribs. On internal examination, it was found that there were fractures over temporal and parietal bones. Corresponding muscles were also injured. There was also a depressed fracture on the right frontal region, and a fracture over right temporal bone. There were also fractures over right 2nd, 3rd, 4th, 5th and 6th ribs. The Autopsy Surgeon opined that the above injuries were ante-mortem, caused by hard and blunt object and were sufficient to cause death in ordinary course of nature, and the death was homicidal. The postmortem report is Ex. P/19. 1.3 The diary statements of Vishwanath Vaishnav (PW-2) and Budhyarin (PW-7) were recorded on 17.05.2008. They stated that they had seen the deceased in the company of the appellants in the last night on 16.05.2008, at about 11-11.30 pm. 1.4 in further investigation, the appellants were taken into custody and their memorandum statements (Exs. P/8, P/9 and P/10) were recorded under Section 27 of the Evidence Act and clothes were seized at the instance of appellants Diyar @ Dwarika (A-1) and Anil (A-2); and clothes and Tiffin box, allegedly belonging to the deceased, were seized from the possession of appellant Tilak Ram (A-3), vide seizure memos Exs. P/11, P/12 and P/13. The seized articles were sent for chemical examination to Forensic Science Laboratory (FSL), Raipur, from where, report Ex. P/27 was received. According to the FSL report, blood stains were found on almost all the articles seized from the possession of the appellants. Though, these articles were sent their Serologist examination, but no report could be filed. 1.5 Admittedly, there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. Following are the main circumstances, on which, the Sessions Judge has relied and convicted and sentenced the appellants, as above: i. The deceased was 'lastly seen' in the company of the appellants; ii. Blood stained clothes were seized from the possession of the appellants on their discovery statements; and iii. A Tiffin box, allegedly belonging to the deceased, was seized from the possession of appellant Tilak Ram (A-3). 2. Mr. Samir Singh, learned counsel appearing on behalf of the appellants, has argued that the 'last seen' circumstance was not fully established; except their own clothes, no other incriminating articles were seized from the possession of the appellants. A Tiffin box, allegedly belonging to the deceased, was seized from the possession of appellant Tilak Ram (A-3). 2. Mr. Samir Singh, learned counsel appearing on behalf of the appellants, has argued that the 'last seen' circumstance was not fully established; except their own clothes, no other incriminating articles were seized from the possession of the appellants. Though it was proved that blood stains were found on the clothes belonging to the appellants, but the origin and the group of the blood stains were not determined; it was not proved that the Tiffin box, allegedly seized from the possession of appellant Tilak Ram (A-3), was belonging to the deceased, as there was no identification of the same. 3. On the other hand, Mr. A.S. Kachhawaha, learned Dy. Advocate General appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court. 4. We have heard counsel for the parties. 5. In Dhananjoy Chhatterjee v. State of W.B. (1994) 2 SCC 22, 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 of 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 and others v. State of Jammu and Kashmir AIR 2002 SC 3164, 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. 7. In Sk. Yusuf v. State of West Bengal AIR 2011 SC 2283 , the Supreme Court further reiterated the same principle and held that the last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. 8. In the instant case, the prosecution has examined 3 witnesses to prove 'last seen'. They are Vishwanath Vaishnav (PW-2), Budhyarin (PW-7) and Fulkunwar (PW-6). 9. Vishwanath Vaishnav (PW-2) was a worker in Kali Temple, which was situated in the same locality. 8. In the instant case, the prosecution has examined 3 witnesses to prove 'last seen'. They are Vishwanath Vaishnav (PW-2), Budhyarin (PW-7) and Fulkunwar (PW-6). 9. Vishwanath Vaishnav (PW-2) was a worker in Kali Temple, which was situated in the same locality. In the intervening night of 16th and 17th of May, 2008, at about 11-11.30 pm, he was present in the Temple. According to him, he saw that the appellants and the deceased were present near the Temple and they were quarrelling. Thereafter, his mother came there and he went to his house along with his mother. Mr. Samir Singh, has drawn our attention to para 9 of his cross-examination, in which, he deposed that he had asked the appellants and the deceased not to quarrel and thereafter, appellant Diyar @ Dwarika (A-1) had already departed the company of the deceased. That is to say that the deceased lastly remained there along with the 2 other appellants (A-2 and A-3). 10. Fulkunwar (PW-6) is mother of Vishwanath Vaishnav (PW-2). She deposed that in the fateful night, at about 11-12.00 pm, she had seen appellant Diyar @ Dwarika (A-1), who was assaulting a person. She denied to identify the other appellants. She deposed that she had not seen them earlier. She had also not identified the deceased. According to her, Diyar @ Dwarika (A-1) was assaulting somebody. She clearly deposed in para 2 of her evidence that at that time, Diyar @ Dwarika (A-1) alone, was assaulting that person. However, after some time, 3 other boys also came there. But, she denied to identify them. 11. Budhyarin (PW-7) has completely denied to see the incident. Budhyarin (PW-7) and Fulkunwar (PW-6), therefore, were declared hostile and were permitted to be cross-examined by the Public Prosecutor. They were cross-examined at length by the Public Prosecutor, but nothing material could be elicited in favour of the prosecution in their cross-examinations. In appreciation of the evidence of these 3 witnesses, we find that it was established by the evidence of Vishwanath Vaishnav (PW-2), that the deceased was seen in the company of the appellants in the night, but before his departure from to the house, Diyar @ Dwarika (A-1) had already departed from the company of the deceased. Thereafter, what happened nobody knows and ultimately, on the next day, dead body of the deceased was found in a nearby dry well. 12. Thereafter, what happened nobody knows and ultimately, on the next day, dead body of the deceased was found in a nearby dry well. 12. Admittedly, the incident took place at about 11-11.30 pm on 16.05.2008 and the dead body of the deceased was found at 8-8.30 am on 17.05.2008. Thus, there was a long time gap between the deceased seen in the company of the above appellants in the night and the dead body found. Looking to the long time gap, a possibility of any 3rd person coming in between this period cannot be fully ruled out. In the above facts situation, the circumstance of 'last seen together' was not of conclusive nature and tendency and it was capable of being explained. 13. The other circumstance is of seizure of blood stained clothes from the possession of the appellants. According to the prosecution, these clothes were belonging to the appellants. If blood stains were found on their own clothes, that would hardly be incriminating circumstance in absence of any other positive evidence to suggest that the appellants were the authors of the crime. Moreover, it was not proved by the prosecution that what was the origin of the blood stains. Whether they were of human blood or not, as the prosecution could not file any Serologist report. 14. In State of Rajasthan v. Teja Ram and Others (1999)3 SCC 507 , the Supreme Court held that it cannot be said that in all cases where there was failure of detecting the origin of the blood, the circumstance arising from recovery of the weapon would stand relegated to disutility. The principle is that it would depend on facts and circumstances of each case and the effect of the above circumstance has to be judged in light of the facts situation of each case. 15. In the instant case, the other circumstance held incriminating is of 'last seen'. The appellants were lastly seen in the company of the deceased at about 11-11.30 pm and the dead body was found in the next morning i.e. after a long time gap. On this reason, we have held that the above circumstance was not of conclusive nature and tendency and it was capable of being explained. In this background, if we look into the circumstance of seizure of blood stained clothes of the appellants, that would hardly be incriminating against them. On this reason, we have held that the above circumstance was not of conclusive nature and tendency and it was capable of being explained. In this background, if we look into the circumstance of seizure of blood stained clothes of the appellants, that would hardly be incriminating against them. We must note that it is not a case, in which, certain weapons seized from the possession of the appellants, were blood stained. The articles seized from the possession of the appellants were only their own clothes. 16. So far as the seizure of Tiffin box, allegedly belonging to the deceased, from the possession of Tilak Ram (A-3), is concerned, the prosecution has utterly failed to prove that the Tiffin box was belonging to the deceased. There is no identification of the Tiffin box, therefore, it was not proved that the said Tiffin box, which was seized from the possession of appellant Tilak Ram (A-3), was an article belonging to the deceased. Thus, the said circumstance was not proved at all. 17. As it is held by the Supreme Court in many cases, including the cases referred to above, that in a case based on circumstantial evidence, the circumstances must be fully established. The circumstances so established must be of conclusive nature and tendency and none of the circumstances should be capable of being explained and the chain of circumstantial evidence also must be complete. In the instant case, the circumstances were not fully established by the prosecution and they were not of conclusive nature and tendency and almost all the circumstances were capable of being explained. 18. On due consideration of the entire material available on record, we are unable to sustain the conviction of the appellants on the above set of circumstantial evidence and the same deserve to be set-aside. Accordingly, the appeals are allowed. The conviction and sentences awarded to the appellants under Sections 302 and 201 read with Section 34 IPC are set-aside. The appellants are acquitted of the charges framed against them. It is stated that the appellants are in jail since 18.05.2008 and 29.05.2008. They be released forthwith, if not required in any other case. Appeal allowed.