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2017 DIGILAW 126 (RAJ)

CHHINDER RAM BHAT v. STATE OF RAJASTHAN

2017-01-10

GOVERDHAN BARDHAR, NAVIN SINHA

body2017
JUDGMENT : Navin Sinha, J. The appellants stand convicted under Section 302/34 IPC to life imprisonment by the Additional District and Sessions Judge, Raisinghnagar dated 24.04.1989 in Sessions Trial No. 24/1987. 2. According to the FIR Exhibit P/3 lodged by PW/4 Kishan Singh, brother of deceased Radhey Shyam on 14.08.1986, the deceased was last seen in the company of Appellant no.1 Chhinder drinking liquor at about 7:30 pm as informed by PW/2 Ganpat when the dead body of the deceased was discovered on the next evening around 6 pm. As per allegation, the informant suspected Appellant no.1 because he had been arrested with an illegal fire arm at the behest of the deceased and had illicit relations with the wife of the deceased. The witness claimed to have gone to the place of occurrence with PW/5 Mohan lal and others who were not examined when the body was discovered. 3. The postmortem Exhibit P/2 was conducted by PW/3 Dr. Suresh Kumar Agarwal who opined that death was due to shock and asphyxia caused by respiratory distress as a result of chest injury. The viscera was preserved and the report Ex.P/22 was negative with regard to presence of alcohol. 4. Learned counsel for the Appellants submitted that there is no eye-witness to the occurrence. The entire case of prosecution is based on circumstantial evidence invoking the last seen theory. The time gap between when the deceased was last seen with appellant no.1 and the recovery of body is more than 23 hours because of which it will not be safe to uphold the conviction as all intervening circumstances remain a possibility. The enmity mentioned in the FIR as the motive because the deceased had appellant no.1 arrested for illicit arms is falsified by the fact that both the deceased and the Appellant no.1 were arrested together at Haryana possessing illegal fire arm as evident from the evidence of PW/4 Kishan Singh himself. The viscera report is in the negative with regard to the presence of alcohol. The FIR which is the first rendition of the episode does not mention the name of Appellants No.2 & 3 as having been seen with the deceased the previous evening. PW/5 Mohan Lal has stated having seen the Appellants and deceased drinking together even earlier at 6:00 pm in the evening which is again of no help to the prosecution. The FIR which is the first rendition of the episode does not mention the name of Appellants No.2 & 3 as having been seen with the deceased the previous evening. PW/5 Mohan Lal has stated having seen the Appellants and deceased drinking together even earlier at 6:00 pm in the evening which is again of no help to the prosecution. The mere recovery of a radio antenna from Appellant No.3 Jeet Singh Exhibit P/13, is irrelevant. The seizure does not even mention the make of the radio which makes it highly suspicious. 5. Counsel for the State submitted that the Trial Court has rightly invoked the last seen theory as there is nothing to demonstrate that the accused parted company with the deceased at any time. The fact that no alcohol may have been found in the viscera is inconsequential as it may have been absorbed in the body during 48 hours till postmortem. Enmity as a motive is said to have existed. 6. We have considered the submissions on behalf of parties and perused the evidence on record. There is no eye-witness to the occurrence and the prosecution case is based purely on circumstantial evidence invoking the last seen theory. 7. Motive can always be a corroborative factor in a case of circumstantial evidence. But the theory of motive with regard to arrest of Appellant No.1 at the behest of the deceased stands falsified from the evidence of PW/4 Kishan Singh himself that both were arrested together with illegal fire arms and had to be bailed out. The second aspersion with regard to Appellant No.1 having illicit relations with the wife of deceased is not supported by any evidence whatsoever. 8. PW/5 Mohan lal and PW/2 Ganpat are stated to have seen Appellants with the deceased at about 6:00 pm and 7:30 pm respectively in the evening. The body has been recovered from the place where they were last seen the next evening at 6:00 pm. The time gap is too large for invoking the last seen theory as all possibilities of intervening circumstances remain open. The body has been recovered from the place where they were last seen the next evening at 6:00 pm. The time gap is too large for invoking the last seen theory as all possibilities of intervening circumstances remain open. The theory is invoked when the time gap between when the accused were last seen with the deceased and the recovery of the body is so short that the possibility of the accused being the assailant becomes a serious possibility casting the duty on them under Section 106 of the Evidence Act to demonstrate in what circumstances the deceased may have died. The doctor has deposed that only one penetrating injury was found on the chest area. If the deceased was with the three appellants, which one of them made the fatal assault on the deceased also remains in the realm of doubt and suspicion and those who did not assault cannot be convicted under Section 302/34 IPC as there is nothing to demonstrate common intention for the killing of the deceased. Till such time the prosecution establishes these facts beyond all reasonable doubt, all possibilities remain open that they may have parted company and death may have occurred in some other manner caused by another. We do not consider it safe to uphold the conviction with facts on the evidence available. The Trial Court has simply invoked the last seen theory without consideration of the time factor and the singular injury found when the accusations were against three persons. 9. In the result, the appeal is allowed and conviction is set aside. The appellants are acquitted but subject to their executing bail bond of Rs.20,000/- each with two sureties of like amount to the satisfaction of the Trial Judge under Section 437-A of the Code of Criminal Procedure.