Gaya Prasad Sen vs State of M.P.

The appellant is aggrieved by his conviction under Sections 364 and 302 of Indian Penal Code handed down by the 16th Additional Sessions

Judge, Jabalpur. By the impugned judgment, the trial Judge found the appellant guilty on both counts and sentenced him to life imprisonment under

Section 302 of IPC and ten years rigorous imprisonment under Section 364 of IPC. Both sentences to run concurrently.

The prosecution case, in short, is as under:

On 26.1.2006, Gautam @ Gunnu had gone to attend the Republic Day function in the school and did not return home. At about 2 p.m., his

guardian Rajaram (PW-1) went to Police Station-Bargi to lodge report of missing person and also informed co-brother-in-law Santosh (PW-5)

father of Gautam, who reached Bargi same evening in search of Gautam. Next day, they made enquires from school boys and learnt from

Shubham (PW-4) that on previous day appellant lured away. On this information, police recorded F.I.R. for offence punishable under section 364

of the IPC and started investigation. During Investigation, on memorandum of appellant under Section 27 of the Evidence Act, dead body of

Gautam was recovered from a well. After inquest, dead body was sent for postmortem. Dr. Sharma (PW-6) performed the autopsy and in his

opinion death was due to drowning within five days of postmortem. After investigation, the charge-sheet was filed and accused was committed to

face trial. As stated above, the trial Judge by the impugned judgment found appellant guilty of offences punishable under Sections 302 and 364 of

the IPC. Hence, this appeal.

There is no direct evidence to connect the appellant with the crime alleged to have been committed by him. Prosecution case is based on

circumstantial evidence. It is well settled that when dealing with the serious question of guilt of persons charged with crime, there must be clear and

unequivocal proof of the corpus delicti and the hypothesis of delinquency should be consistent with all the facts proved. It is also well settled that

when a case rests on circumstantial evidence, such evidence must satisfy three tests -(i) the circumstances from which an inference of guilt is sought

to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt

of the accused; (iii) the circumstances, taken cumulatively, should form a complete chain so there is no escape from the conclusion that within all

human probability, the crime was committed by the accused and none else. In Brijlal Prasad Sinha V/s. State of Bihar : (1998) 4 SCALE 25

(S.C.) , Pattanaik, J. speaking for the Bench, held as under:-

In a case of circumstantial evidence the prosecution is bound to establish the circumstances from which the conclusion is drawn must be fully

proved; the circumstances should be conclusive in nature; all the circumstances so established should be consistent only with the hypothesis of guilt

and inconsistent with the innocence; and lastly the circumstances should to a great certainty exclude the possibility of guilt of any person other than

the accused. The law relating to circumstantial evidence no longer remains res integra and it has been held by catena of decisions of this Court that

the circumstances proved should lead to no other inference except that of the guilt of the accused, so that, the accused can be convicted of the

offences charged. It may be stated as a rule of caution that before the court records conviction on the basis of circumstantial evidence it must

satisfy that the circumstances from which inference of guilt could be drawn have been established by unimpeachable evidence and the

circumstances unerringly point to the guilt of the accused and further all the circumstances taken together are incapable of any explanation on any

reasonable hypothesis save the guilt of the accused.

It is equally well settled that where the entire prosecution case hinges on circumstantial evidence, the Court should adopt a cautious approach

for basing the conviction on circumstantial evidence and unless the prosecution evidence points irresistibly to the guilt of the accused, it would not

be sound and safe to base the conviction of an accused person. Keeping this settled position in mind, we have examined the prosecution evidence

adduced in the case in hand.

At this stage, it is not in dispute that the deceased died due to drowning. In this context, we may refer to evidence of Dr. Sharma (PW-6) who

performed the postmortem. The autopsy report is Exhibit-P/6. Perusal of the postmortem report reveals that deceased had sustained no injuries on

the vital part of the body or he died a homicidal death. The question, therefore, is whether the prosecution has brought home the offences alleged

against appellant?

As stated above, the trial Judge held that the deceased was last seen alive in the company of appellant and thereafter he was missing till dead

body was found in a well on 30.1.2006. For this purpose, prosecution has not adduced any evidence except the evidence of Shubham (PW-4).

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 other person other than the accused being the author of crime becomes

impossible. In absence of any positive evidence to conclude that the appellant was the author of crime, it would be hazardous to come to the

conclusion of the guilt in the present case. In the instant case, there is no positive evidence. We are unable to reach an irresistible conclusion on the

basis of nebulous evidence of Shubham that appellant is the author of crime.

In view of the foregoing discussion, we find it difficult to sustain the judgment of conviction. Accordingly, we allow this appeal and direct that the

appellant be released from custody forthwith, if not required in any other cause. The fine amount, if any, paid by the appellant, be refunded to him.

Let a copy of this judgment along with record be transmitted to the trial Court immediate for taking necessary follow up action under intimation

to this Court.

Ordered accordingly.