Golak @ Pratap vs State Of Chhattisgarh

Judgment On Board by Pritinker Diwaker, J 07/04/2018

This appeal has been filed against the judgment of conviction and order of sentence dated 30.06.2011 passed by Additional Sessions Judge

Mahasamund in Sessions Trial No. 54/2010 convicting the accused/appellant under Section 302 IPC and sentencing him to undergo imprisonment for

life and pay fine of Rs. 1000/-, plus default stipulation.

As per the case of prosecution, on 02.08.2010 in between 7 and 8 PM deceased Ganga Prasad Dhimar and the accused/appellant herein were seen

quarreling and on the next day i.e. 03.08.2010 body of the deceased was found near a culvert. Merg Ex. P-1 was recorded at the instance of village

Kotwar namely Gothuram (PW-1). After drawing inquest Ex. P-5, dead-body was sent for postmortem examination which was conducted by Dr. J.P.

Soni (PW-11) who gave his report Ex. P-

After this, FIR Ex.P-12 came to be recorded on 04.08.2010 against an unknown person for the offence punishable under Section 302 IPC. On the

memorandum of accused/appellant Ex. P-2 seizure of club and a scarf (gamchha) was made under Ex. P-3 and that of full pant and a piece of blade

was made under Ex. P-7. As per FSL report Ex. P-18, full pant seized under Ex. P-7 was stained with blood. However, there is no serological report

on record. Allegation against other three accused persons was that they helped the accused/appellant in cocealing the dead-body. Court below framed

the charge against the accused/appellant u/s 302 IPC whereas against other three it was under Section 201 IPC.

In order to prove the complicity of the accused persons in the crime in question, the prosecution has examined 12 witnesses. Statements of the

accused persons under Section 313 Cr.P.C. were also recorded in which they denied their guilt and pleaded innocence and false implication in the

case.

After hearing the parties, the Court below acquitted the other three accused persons of the charge levelled against them but has convicted and

sentenced the accused/appellant herein as mentioned above.

Counsel for the accused/appellant submits as under:

(i) That there is no eyewitness to the incident and the entire case of the prosecution is based on circumstantial evidence which is very weak in nature.

(ii) That when on the same set of evidence other three accused persons have been acquitted by the Court below, the accused/appellant herein is also

entitled for the same relief.

(iii) That the evidence with respect to accused and the deceased being last seen together by Mohd. Jameel (PW-6) and Chhannulal (PW-8) is not

conclusive as the deceased was not known to them. It is most importantly because PW-8 did not even see the dead body of the deceased but yet he

becomes the witness to last seen which unfortunately has been relied upon by the trial Court also.

(iv) That though the full pant seized under Ex. P-7 contained blood as per FSL report Ex. P-18 yet in the absence of serological report to establish the

origin of the said blood, such seizure has no value in the eye of law.

State counsel however supports the judgment impugned and submits that the findings recorded by the Court below convicting the accused/appellant

under Section 302 IPC are based on due appreciation of the evidence on record and there is no infirmity in the same.

Heard counsel for the parties and perused the material available on record.

Mohd. Jameel (PW-6) â€" the witness to last seen has stated that he knew the accused persons but did not know the deceased. He has stated that

at about 7 PM when the deceased was lying over the pulpit near his puncture repairing shop, accused/appellant herein came there and took him along.

Some hot talk and scuffle is also stated to have ensued between the two and on intervention by the people present there they got apart. What

happened thereafter, was not within the knowledge of this witness. Chhannulal (PW-8) â€" another witness to last seen has also stated that he knew

all the accused persons but did not know the deceased either by name or by face. He has then stated that when he was going to supply milk to Paal

Dhaba, accused/appellant herein and the deceased were seen quarreling by the road side and on his intervention they got separated and went away.

In cross-examination also he has stated that he did not know the deceased nor did he see him dead. Gothuram (PW-1) â€" the village Kotwar is the

witness who lodged merg Ex. P-1 at police station Mahasamund. Shambhu (PW-2) â€" the father of the deceased and witness to memorandum Ex.P-

2, seizure made under Ex. P-3, P-4, P-6 and P-7 as also to that of inquest Ex. P-5 has not stated anything against the accused/appellant. Basant (PW-

3) â€" the brother of the deceased has also not stated anything specific against the accused/appellant. Kanhaiyalal Sahu (PW-4) has not supported the

case of prosecution and has been declared hostile. Ghanshyam (PW-5) is the witness to inquest Ex.P-5 has admitted his signature thereon. Arvind

Soni (PW-7) is the witness to memorandum Ex. P-2 and seizure made under Ex. P-3, P-4, P-6 and P-7 who too has admitted his signature on all these

documents. Darshan Singh (PW-9) and Dhool Singh (PW-10) are the witnesses who assisted in the investigation. Dr. J.P. Soni (PW-

11) is the witness who conducted postmortem examination on the body of the deceased and gave his report Ex. P-11 mentioning therein the presence

of lacerated wound on the middle forehead â€" size 1.5x0.5 cm, abrasion xygomatic arch â€" size 1x1 cm and incised wound on the right side of back

â€" size 11x0.2 cm; ligature made up of cloth found around throat above thyroid cartilage just below the mandible with knot on left side just below the

left ear. Cause of death was cardio respiratory failure due to asphyxia as a result of strangulation. Death has also been opined to be homicidal in

nature. Pramila Mandavi (PW-12) is the investigating officer who has duly supported the case of prosecution.

Having thus gone through the entire material on record what this Court feels is that the main evidence against the accused/appellant is the evidence

of last seen. PW-6 and PW-8 are the two witnesses who claim to have seen the accused /appellant and the deceased together. However, if the

statement of PW-6 is seen it becomes apparent that he did not know the deceased. Further, he saw accused and the deceased together in the evening

at about 7-8 o'clock but the dead-body was found in the next morning. Likewise, PW-8 also did not know the deceased nor did he see him dead. Time

gap between the deceased and the accused being last seen together in the evening at 7-8 PM and the dead-body being located in the next morning is

so huge to connect the accused with the crime in question. In so many cases the Apex Court has categorically held that the last seen theory comes

into play where the time-gap between the point of time when the deceased was seen alive with the accused and when he is found dead should be so

small that possibility of any person other than the accused being the author of the crime becomes impossible. In the absence of any other positive

evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt of the

accused. Furthermore, though the full pant seized on the memorandum of the accused/appellant was stained with blood as is clear from FSL report

Ex. P-18 but in the absence of serological report establishing the origin of blood, such seizure is of no consequence. Thus apart from the fragile and

inconclusive evidence of last seen and seizure of blood stained full pant not coupled with the serological report, the prosecution has not led any

evidence to arrive at the conclusion of the guilt of the accused. In these circumstance, the accused/appellant deserves benefit of doubt.

Thus in the considered opinion of this Court, the judgment impugned passed by the Court below is not a merited one as it is not based on due

appreciation of the evidence on record. It is accordingly set aside by allowing this appeal and the accused/appellant stands acquitted of the charge

levelled against him.

At this stage, it has been pointed out to this Court that by order dated 11.11.2011 the accused/appellant was granted bail but from the report

received from the Superintendent, Central Jail Raipur dated 15.2.2018 in pursuance of the order passed by this Court on 13.1.2018 it appears that the

accused/appellant is still under detention. State counsel also confirms that the accused/appellant is still in jail. It is indeed shocking that even 7 year

after passing of order granting bail, the accused/appellant could not be set free. Director General (Jail) is directed to ensure that in the cases where

bail is granted but the accused has not been released from jail, the jail authorities must send information to this effect to the Court granting bail. Let a

detailed report as to how the accused in this case could not be released even 7 year after the bail grated to him, be submitted before this Court by the

Director General (Jail) within six weeks from today. Report of the Director General (Jail) should also clearly state as to in how many more jails of

Chhattisgarh State the situation is like this where accused persons are languishing in jail even after grant of bail. Let a copy of this order be sent to

Director General (Jail), Raipur and the Superintendent, Central Jail, Raipur to ensure its compliance.

Needless to say that consequent upon acquittal the accused/appellant be set free immediately.

Appeal allowed.