Chattisgarh High Court
Dilbodh Nagesia vs State Of M.P. (Now Chhattisgarh) on 28 July, 2003
Equivalent citations: 2004CRILJ2347, 2004(1)MPHT26(CG)
Author: L.C. Bhadoo
Bench: L.C. Bhadoo
JUDGMENT L.C. Bhadoo, J.
1. These two appeals, i. e., Criminal Appeal No. 454/2000 preferred by Dilbodh Nagesia and Criminal Appeal No. 1271/2000 preferred by Tijan Nagesia are arising out of the same judgment therefore they are being disposed of together by this common judgment.
2. The accused/appellants have preferred these criminal appeals under Section 374(2) of the Criminal Procedure Code being aggrieved by the judgment dated 15th December, 1998 passed by the learned First Additional Sessions Judge, Ambikapur District Sarguja in Sessions Trial No 389/97 by which the learned Additional Sessions Judge after holding accused/appellants guilty of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code sentenced both of them to undergo imprisonment for life.
3. The prosecution case is that on the intervening night of 30th November and 1st December, 1997 at about 9 p.m. deceased Pradeep was at the residence of his brother Ram Narayan. The three accused persons namely Tijan, Gulab and Dilbodh came to the house of Ramnarayan. They wanted to take Pradeep along with them but Ram Narayan told them that Pradeep would not go. But after 10 minutes they came back and took Pradeep along with them. Pradeep had not returned to his residence in the night. Next day morning Ved Ram informed Ghashi Ram (P.W. 1), cousin brother of the deceased, that one dead body of a person was lying by the side of the road. On this information Ghashi Ram along with Vilas, Sobran Singh, Manju, Budhan and other villagers went to the site and saw that the dead body of Pradeep was lying there. Blood was oozing out of the head and injuries were present on the mouth and cheek. Ghashi Ram immediately reported the matter to the Police Station, Darima vide Ex. P-2, raising doubt on all the three accused persons. C.S. Sharma (P.W. 10), Assistant Sub Inspector reduced into writing the merg intimation (Ex. P-2) and left for the site of occurrence. He prepared Panchnama (Ex. P-3) and site plan (Ex. P-19). After giving notice to the witnesses (Ex. P-5) he prepared inquest Panchnama of the dead body (Ex. P-6). The dead body of Pradeep was sent for post-mortem to the hospital at Ambikapur along with Jagjeevan Chandra (P.W. 9) vide Ex. P-16. One pair of chappals, the soil found on the scene, blood stained soil and plastic shoe were seized under Ex. P-8. The Patwari Daya Shankar (P.W. 8) prepared the site plan (Ex. P-13). Mr. Manoj Jaiswal (P.W. 11) conducted the post-mortem on the dead body of deceased Pradeep and prepared the post-mortem report (Ex. P-21). Accused Tijan gave memorandum (Ex. P-9) and pursuant to that he got recovered a bamboo stick vide Ex. P-10. Half shirt of Tijan stained with blood was seized under Ex. P-12. Jagjeevan Chandra brought a sealed packet of articles, which was sent to the Forensic Science Laboratory, Sagar vide Ex. P-22. The report of the Serologist was received vide Ex. P-23. After completion of the investigation, charge-sheet was filed against the accused appellants. Accused Gulab being juvenile his matter was referred to the Juvenile Court.
4. Learned Additional Sessions Judge framed the charge against the accused/appellant for the commission of the offence punishable under Section 302 read with Section 34 of the IPC. They denied the charge and claimed to be tried.
5. The prosecution in order to prove the offence against the accused persons examined in all 11 witnesses. The statements of the accused persons were recorded under Section 313 of the Cr.PC in which they have stated that the evidence of the prosecution witnesses are false, they have been implicated in a false case and they are innocent.
6. After hearing the arguments of learned Additional Public Prosecutor and learned Counsel for the accused/appellants and after believing the evidence of the prosecution the learned Additional Sessions Judge convicted and sentenced the accused/appellants for the commission of the offence under Section 302/34 of IPC as mentioned above.
7. We have heard Shri A.K. Prasad and Smt. Kiran Jain, learned Counsel appearing on behalf of the appellants and Shri Ashok Kumar Verma, learned Deputy Advocate General appearing on behalf of the State.
8. As far as the nature of death of deceased Pradeep Kumar being homicidal is concerned, learned Counsel for the accused/appellants have not disputed this fact. Dr. Manoj Jaiswal (P.W. 11) has stated that on 2nd December, 1997 he was posted as Medical Officer in District Hospital, Ambikapur. On that day at about 8.30 a.m. he conducted post-mortem on the dead body of Pradeep. On examination the following injuries were found :--
(1) Lacerated wound on the right side of the jaw below the ear in the size of 1 x 1/1 c.m. skin deep. Another lacerated wound was also at this place.
(2) Abrasion with contusion on the left shoulder in the size of 1 x 1 c.m.
(3) Abrasion with contusion on the left side of the chest. On opening the body it was noticed that the first and the second ribs were fractured and the left side cavity of the chest was full of blood. The trachea was found crushed, smell of alcohol was coming out from the stomach and the cause of death of the deceased was asphyxia on account of strangulation. The death of deceased was homicidal in nature. His report is Ex. P-21.
9. In view of the above evidence of the doctor, it stands proved that the nature of death of deceased Pradeep was homicidal.
10. On the point of involvement of the accused persons in committing the murder of Pradeep, there is no eye witness to the incident and the whole case rests on circumstantial evidence. The law on the point is that in a case based on the circumstantial evidence the Court can record conviction but it must satisfy itself that the circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but also complete the chain so fully as to unerringly point only the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused.
11. Now we shall proceed to examine the prosecution evidence. In order to prove the guilt of the accused/appellants the prosecution has adduced the evidence regarding the following circumstances :--
(i) Chappals of the accused Tijan were found near the body of the deceased.
(ii) The accused persons were last seen with the deceased before his death.
(iii) The blood-stained shirt of accused Tijan was seized from him and one bamboo stick was also seized from the accused Tijan.
12. As far as the recovery of chappals of accused Tijan from the place of occurrence is concerned, the said chappals were recovered under Panchnama (Ex. P-7). A perusal of the Ex. P-7 reveals that Udai Kumar and Ram Shankar residents of Khasoli identified the chappals of Tijan. Unfortunately both these witnesses have not been produced as witnesses in the case. Therefore, virtually there is no evidence on the point that the chappals belonged to accused Tijan. Ramjit Singh (P.W, 4) is the witness to recovery of chappals. He has stated that he knows the accused Tijan and the accused had not disclosed anything to the police in his presence. In the cross-examination, this witness has stated that he is unable to say as to whom the chappals and shoe belongs as such, virtually there is no evidence, which goes to show that the chappals which were recovered from the scene of occurrence and lying near the dead body of the deceased Pradcep, belonged to the accused Tijan.
13. As far as the circumstance of last seen together is concerned, Ghashi Ram (P.W. 1) has stated that Ram Narayan told him that on the previous night Gulab, Tijan and Dilbodh had taken the deceased Pradeep along with them. In the cross-examination, he has stated that he had not seen the accused persons taking Pradeep along with them. Ram Narayan (P.W. 2), the real brother of deceased Pradeep, in his examination in chief has stated that at about 9 p.m. all the three persons came and called his brother Pradeep, but he had not allowed Pradeep to go along with them. After 10 minutes they again came and took Pradeep along with them. In the cross-examination in Para 3 of his evidence, he has stated that when the accused persons came to call Pradeep, he had gone to sleep, his mother and wife told him that the accused persons came and they took the deceased Pradeep along with them. Therefore, this witness had also not seen the accused persons taking the deceased along with them. Bafaiya Bai (P.W. 3), mother of the deceased, has stated that even though she was residing separately from her son Ram Narayan but on the fateful night she was present at the house of Ram Narayan and at about 7 p.m. accused persons came and took the deceased Pradeep along with them. When Pradeep had not returned in the night, next day morning she along with another person Jagnarayan went to the village in search of Pradeep and they saw his dead body. In Para 5 of her cross-examination she has stated that earlier also Pradeep used to go along with accused persons for stroll. She stated that deceased Pradeep invariably used to go along with the accused persons for stroll and on the fateful night also the accused persons took the deceased along with them. The accused persons and Pradeep must be friends that is why they used to go together for stroll. In order to establish the crime of murder against the accused persons based on the circumstance of last seen, the prosecution has to prove that the time gap between the last seen and murder must be so proximate and so close that there should not be any possibility of drawing any inference of innocence of the accused persons and there should not be any possibility of meeting of any one else with the deceased in between. In other words, there should not be any other possibility than that the accused persons have committed the heinous crime. The last seen circumstance is a very weak type of evidence. It should be corroborated by some other independent material evidence. The Apex Court in the case of Bodhraj alias Bodha and others v. State of Jammu & Kashmir, reported in (2002) 8 SCC 45, has held that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive together 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. The Apex Court further held that it would be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together. Similarly the Apex Court in the case of Subhash Chand v. State of Rajasthan, reported in (2002) 1 SCC 702, has specifically held that last seen together must be near about the date and time of the incident. Merely on the basis of last seen, the accused persons can not be held guilty.
14. Based on these principles we proceed to examine the evidence of the present case. The only evidence on record is that of Bafaiya Bai (P.W. who has stated that on the fateful night the accused persons took the deceased along with them. As per the prosecution case the accused persons took the deceased at 9 p.m. in the night and the body of the deceased was found near the road next day morning, although Bafaiya Bai (P.W. 3) has stated that they took the deceased at 7 p.m. So there is no clinching evidence, which shows that the accused persons and the deceased were seen together near the scene of occurrence during that night. The evidence of Bafaiya Bai (P.W. 3) is that the accused persons and deceased often used to go together for stroll and as they were friends, they went together. It shows that there was no motive or immediate cause for the accused persons to commit the murder of the deceased. In a case, which wholly rests on the circumstantial evidence, the motive plays a very vital role and in the absence of motive it becomes more difficult to connect the accused with the commission of murder of the deceased. No clinching evidence is available against the accused persons by which an inference can be drawn that the accused persons are the only persons who have committed the murder of the deceased and that there is no possibility of excluding them from the crime.
15. In this case, the prosecution has utterly failed to establish the crime against the accused/appellants based on the circumstance of last seen together. The motive behind the crime is also not established against the accused persons. Therefore, it is not safe to hold the accused/appellants guilty of the charge on the basis of the evidence of last seen that too not immediately before the death. The only circumstance against the accused/appellants is that they have not explained as to when the deceased had departed their company after they took him from his house. But merely on this count, looking to the facts and circumstances of the case, it is not safe to draw an inference that the accused persons are the only persons who committed the heinous crime of murder of Pradeep.
16. As far as the recovery of bamboo stick, which has been recovered at the instance of the accused Tijan, is concerned, such bamboo sticks are normally found in every house. Even otherwise, on enquiry, Dr. Manoj Jaiswal (P.W. 11) has opined that the injuries, which were found on the dead body of the deceased, were not possible by this object. His report is Ex. P-18-A. In view of the evidence of the doctor it is difficult to connect the accused Tijan with the murder of Pradeep based on this evidence of recovery of bamboo stick.
17. As regards the recovery of the shirt of the accused Tijan on which the human blood was found, first of all there is no report that the group of blood, which was found on the shirt and the blood group of the deceased, was the same. Otherwise, also there is no evidence that the blood was not of accused himself. Therefore, merely on this circumstantial evidence that the human blood was found on the shirt of the accused, the accused can not be connected with the murder of Pradeep.
18. For the reasons given hereinabove, we are of the opinion that the prosecution has not been able to establish the case against the accused persons based on the circumstantial evidence as per the settled principles of resting conviction on the circumstantial evidence. The judgment of the Trial Court convicting and sentencing the accused/appellants after holding guilty of murder of deceased Pradeep is not based on convincing and legal evidence and sound reasoning. Therefore it can not be sustained. The learned Trial Court has not appreciated the prosecution evidence properly according to the settled principle of law.
19. In the result the appeals of the accused/appellants are allowed. The judgment of conviction and sentence passed by the Trial Court is set aside. They are acquitted of the charge for the offence punishable under Section 302 read with Section 34 of the IPC. They be set at liberty immediately if not required in any other case.