Judgment:
Sunil Kumar Sinha, J.
1. Challenge is made to the judgment of conviction and order of sentence dated 16-1-2003 passed by the Additional Sessions Judge, Khairagarh, District Rajnandgaon in Sessions Trial No. 114/2002, whereby, the appellants have been convicted under Sections 302 and 201, IPC, and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2,000/-, in default of payment of fine to further undergo R.I. for 10 months and R.I. for 7 years and to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo R.I. for 5 months with further direction to run the sentences concurrently.
2. Deceased-Basant Lodhi was working in the shop of Bhuwan and Jagannath (P.W. 6) situated in Village Parpodi. He was resident of Village Patharrikhurd. He used to go to the shop on every morning. On 7-4-2002, he did not return to his house, search was made and ultimately, on 11-4-2002, his dead body was found in a field in Village Suradabri. The matter was reported to the police by Bhojram (P.W. 1) and a merge intimation (Exh. P-1) was recorded. On 11-4-2002, the Investigating Officer prepared inquest (Exh. P-2) on the body of the deceased. The dead body was sent for post-mortem to P.H.C., Chhuikhadan and the post-mortem examination was conducted by Dr. Ashok Khare (P.W.4), who prepared his report (Exh. P-8). The Autopsy Surgeon noticed that the body was in highly decomposed condition, his face had disfigured and hands & legs were mummified. Eyes were closed, tongue was protruding out of mouth and the neck was freely moving around. On internal examination, he found that axis bone was fractured, spinal cord was cut at 2nd and 3rd vertebra positions and there were injuries on the upper side of right lung. The left jaw was also fractured. He opined that the cause of death was cervical fracture leading to respiratory failure and the death has occurred in the period 5 to 7 days back. On 14-4-2002, appellant-Kailash was taken into custody and a discovery memo (Exh. P-3) under Section 27 of the Evidence Act was recorded and empty bottles of liquor etc. were seized from the place indicated by him, which was a place in the field where the dead body was found.
3. The case of the prosecution is that 3 years prior to the date of incident, the deceased had purchased a land from the appellant-Kailash Lodhi for a consideration of Rs. 25,000/-. Though the consideration was fully paid and the possession of the land was also delivered to the deceased but the execution of registered sale-deed had not taken place and appellant-Kailash Lodhi was denying to executing the sale-deed. It is for this reason, on 7-4-2002, the appellants went to the shop of Jagannath (P.W. 6) and took the deceased on their bicycles, whereafter, the deceased was not seen alive. Since the deceased was lastly seen alive with the appellants, on the circumstance of 'last seen together' the appellants were arrested, the charge-sheet was filed against them and after the trial they were convicted and sentenced as aforementioned.
4. Admittedly, there are no eye-witnesses in this case and the conviction of the appellants is based upon the solitary circumstance of last seen together coupled with the motive to commit the murder of the deceased on account of the land sale dispute between them.
5. Shri R.N. Jha, learned Counsel for the appellants, has not disputed the homicidal death of the deceased. He argued that the conviction based on the solitary circumstance of last seen together cannot be sustained. He also argued that the circumstance does not appear to have been established by the prosecution and even if it is held to be proved, looking to the long time gap between last seen and the dead body discovered, possibility of third person coming in between cannot be fully ruled out in this case.
6. On the other hand, learned Counsel for the State opposed these arguments and supported the judgment and order passed by the Sessions Court.
7. We have heard the learned Counsel for the parties at length and have also perused the records of the Sessions Court.
8. For resting the conviction solely based on the circumstantial evidence, the law laid down by the Apex Court in the matter of Dhananjoy Chhatterjee v. State of W.B. (1994) 2 SCC 22, is that '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.'
9. In Both Raj alias Bodha and Ors. v. State of Jammu and Kashmir : 2002CriLJ4664 , the Apex 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. 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 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 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.
10. Almost similar view was again taken by the Apex Court in the matter of State of Goa v. Sanjay Thakran and Anr. 2007 (4) SBR 321. While passing the said judgment, the Apex Court has also referred to the decision of Bodh Raj case (supra), and finally 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 offence charged with then 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 completed be ruled out.
11. Shrawan Kumar (P.W. 3) and Jagannath (P.W. 6) have been examined on the point of last seen. Shrawan Kumar (P.W. 3), deposed that on the fateful day at about 6.00 p.m., he was in the pesticide shop in Village Parpodi. Jagannath (P.W. 6), Kailash, Jeevan & Basant (deceased) were also sitting in the shop. The deceased told him that he is going along with Kailash. Thereafter, the deceased, appellant-Jeevan and appellant-Kailash went towards Village Patharri on their bicycles. After 4-5 days, he received message that the dead body of the deceased was found in Village Suradabri. Jagannath (P.W. 6), deposed that on the fateful day at about 6.00 p.m. both the appellants came to his shop and the deceased went along with the appellants. They had gone on their bicycles, he had seen them going towards Village Suradabri.
12. In appreciation of evidence of these 2 witnesses, we find that their 161 statements (Exhs. D-2 and D-4) were recorded on 5-5-2002, i.e., almost after about a period of 1 month and they had disclosed these facts at a belated stage. The prosecution has not genuinely explained as to why such delay was caused in recording evidence of these witnesses. It comes in the evidence of Investigating Officer, B.S. Meravi (P.W. 7), in Para 27 that since the 2 witnesses were residents of District Durg and they had not met with him at an earlier occasion, therefore, their statements could not be recorded on some early date. In light of the evidence of the Investigating Officer, when we examine the contents of the evidence of Shrawan Kumar (P.W. 3), he deposed in Para 8 of his cross-examination that the dead body of the deceased was recovered before him and the Panchanama of the dead body was prepared in his presence as he had gone to Village Suradabri after hearing that the body of the deceased has been found. He has further stated that his statement was recorded after 1-2 days after recovery of the body. Jagannath (P.W. 6), has also deposed vide Para 7 of his cross-examination that he was present in Village Suradabri on the date of recovery of the dead body along with Shrawan Kumar and in village itself, on the very same day, he told to the police that he had seen the deceased going along with appellants. In light of this state of evidence of these witnesses, we are afraid to place our reliance on the testimonies of these witnesses.
13. Even assuming that these witnesses had lastly seen the deceased going along with the appellants, in our opinion, this solitary circumstance would not lead to irresistible conclusion that the appellants and none else had committed the murder of the deceased. As laid down by the Apex Court in above judgments, 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 was found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. Admittedly no straitjacket formula about the time gap can be fixed but the time gap must be reasonably short to rule out the possibility of indulgence of any person. In the present case even if we assume that the deceased was lastly seen alive on 7-4-2002, then, as his dead body was discovered on 11-4-2002, looking to the long time gap of about 5 days, a possibility of any third person coming in between cannot be fully ruled out in this case.
14. In our considered view, in the facts and circumstances of the case, the learned Sessions Court erred in law in convicting the appellants on the solitary circumstance of last seen together.
15. In the result, the appeal is allowed.
16. The conviction and sentences awarded to the appellants are set aside. The appellants are acquitted of the charges framed against them.
17. It is stated that the appellants are in jail since 14-4-2002. They be set at liberty forthwith, if not required in any other case.