Kumbhaj vs State of C.G.

Sunil Kumar Sinha, J.

These 2 appellants have been convicted under Sections 302/34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 500/- with default sentence of R.I. for 6 months. The judgment and finding has been recorded in ST. No. 37/2001 by the 2nd Additional Sessions Judge, Baloda Bazar, District Raipur (CG) on 31st of August, 2001. The facts, briefly stated, are as under:--

1.1. Deceased-Nandu Sahu was a Bore-well Contractor. The appellants were labourers. They were engaged by the deceased for boring, which was going on in village-Boirdih. The work was going on in the outskirts of the village. A small Tent was prepared for staying the labourers near the boring site. The work of boring was going on since last 4-5 days prior to the date of incident.

1.2. The case of the prosecution is that in the intervening night of 4th-5th of October, 2000, the appellants and the deceased were present in the Tent. However, in the morning, dead body of the deceased was found at a distance of about 2200 feet from the boring site and the appellants were absconding. The deceased had sustained multiple serious injuries. The Autopsy Surgeon found that the injuries were ante-mortem caused by hard and blunt object and were sufficient to cause death in ordinary course of nature and the cause of death was shock and haemorrhage due to head injury and it was homicidal in nature. The postmortem report is Ex. P/9.

1.3. In further investigation, the appellants were taken into custody and their memorandum statements (Exs. P/3 and P/5) were recorded u/s 27 of the Evidence Act and a piece of iron pipe was seized at the instance of appellant-Kumbhaj (A-1) vide seizure memo Ex. P/4 and a hammer was seized at the instance of appellant-Milan (A-2) vide seizure memo Ex. P/6. The seized articles were sent for their chemical examination to Forensic Science Laboratory (FSL), Raipur, from where a report (Ex. P/34) was received. According to the FSL report, blood stains were not found on the iron pipe and hammer seized at the instance of the appellants. However, blood stains were found on Full-pant seized from appellant-Kumbhaj (A-1) and Shirt seized from appellant-Milan (A-2). Though, these articles were sent for further examination to Serologist Laboratory, but no report could be filed.

1.4. Admittedly, there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. Following are the main circumstances, on which, the Sessions Judge relied and convicted and sentenced the appellants as above:

(i) The death of the deceased was homicidal;

(ii) The appellants were lastly present with the deceased in the Tent;

(iii) The appellants were absconding in the morning;

(iv) The appellants gave discovery statements, on which, piece of iron pipe and hammer were seized on their instances; and

(v) Kheduram father of Kumbhaj (A-1), has quarrelled with the deceased, just one day prior to the date of incident, therefore, the appellants had ''motive'' to commit murder of the deceased.

Learned counsel for the appellants, have argued that the circumstances were not fully established; they were not of conclusive nature and tendency; the circumstance of ''last seen'' itself was not sufficient to convict the appellants as there was a long time gap between the deceased allegedly seen alive in the company of the appellants and the dead body found; other circumstances were also not fully established, therefore, the conviction based on insufficient circumstantial evidence cannot be sustained.

On the other hand, learned counsel for the State, has opposed these arguments and supported the judgment passed by the Sessions Court.

We have heard counsel for the parties.

In Manjunath Chennabasapa Madalli Vs. State of Karnataka, , it was held vide para 11 as under:

It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh Vs. State of Rajasthan, ; Eradu and Others Vs. State of Hyderabad, ; Earabhadrappa Vs. State of Karnataka, ; State of U.P. Vs. Sukhbasi and Others, ; Balwinder Singh alias Dalbir Singh Vs. State of Punjab, ; Ashok Kumar Chatterjee Vs. State of M.P., ). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram Vs. State of Punjab, , it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

About the ''last seen theory'', the Supreme Court held in Bodh Raj @ Bodha and Others Vs. State of Jammu and Kashmir, and State of Goa Vs. Sanjay Thakran and Another, , 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. Similar view was also taken in Sk. Yusuf Vs. State of West Bengal, .

In Sahadevan and another Vs. State of Tamil Nadu, , which was also relied by the counsel for the appellants, it was held vide para 31 that:

With the development of law, the theory of last seen has become a definite tool in the hands of the prosecution to establish the guilt of the accused. This concept is also accepted in various judgments of this Court. The Court has taken the consistent view that where the only circumstantial evidence taken resort to by the prosecution is that the accused and deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt. In Arjun Marik and Others Vs. State of Bihar, , this Court took the view that where the appellant was alleged to have gone to the house of one Sitaram in the evening of 19th July, 1985 and had stayed in the night at the house of deceased Sitaram, the evidence was very shaky and inconclusive. Even if it was accepted that they were there, it would, at best, amount to be the evidence of the appellants having been last seen together with the deceased. The Court further observed that it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record a finding that it is consistent only with the hypothesis of guilt of the accused and, therefore, no conviction, on that basis alone, can be founded.

If we examine the circumstance of ''last seen'' in light of the above principles, we find that in the instant case, on 04.10.2000, 4 villagers namely Ganesh (PW-6), Ramnath (PW-8), Sitaram (PW-11) and Manakram (not examined) had visited the place of boring in the evening. There, the 2 appellants (A-1 and A-2) were working. The deceased was also there. The deceased had offered them meals and they said Manakram to bring chicken and liquor. According to these witnesses, chicken and liquor were brought and after preparation of the meals, all these witnesses, 2 appellants (A-1 and A-2) and the deceased had taken their meals and drinks and then these witnesses had come back and 3 persons remained in the Tent near the boring place. Out of these witnesses, Sitaram (PW-11) has turned hostile and he has not supported the case of the prosecution, however, the other witnesses have supported to the above extent. There is no evidence on record as to what happened thereafter. There is also no evidence to show as to whether the deceased also stayed in the Tent or he left the company of the appellants from the Tent or the appellants themselves had left the deceased in the Tent in the night and had gone somewhere. The dead body of the deceased was found on 05.10.2000. It was lying at a distance of about 2200 feet from the boring place. Therefore, even if we take the evidence of Ganesh (PW-6) and Ramnath (PW-8) that the deceased was in the company of the appellants in the night, since his dead body was found after a very long time, the above evidence of ''last seen'' itself would not be conclusive for holding the appellants guilty of murder of the deceased, as a possibility of any third person coming in between this period cannot be fully ruled out.

That apart, the dead body of the deceased was not found in the Tent, where the appellants and the deceased were lastly seen alive. The dead body was found at an open place, which was at a distance of about 2200 feet from the boring place. We are of the view that in the above facts and circumstances, this solitary circumstance in light of the above judgments of the Supreme Court, was not sufficient.

Now we shall examine the other circumstances.

The Sessions Judge has also relied on the circumstance of abscondance of the appellants. Dashrath (PW-1) was the person, whose Buffalo-cart was engaged for bringing water to the boring site. He deposed that on 05.10.2000, in the morning, when he went to the boring site, he found that the appellants were not there. This circumstance is also held to be incriminating. We find that the appellants were taken into custody on 06.10.2000 i.e. just on the next date after the dead body was seen. Thus, it was not a case, in which, the appellants were absconding for a long period. Moreover, it is a settled legal position that in case, a person is absconding after the commission of offence of which, he may not even be the author, such a circumstance, alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely being suspected, out of fear of police arrest and harassment. (Vide: Matru alias Girish Chandra Vs. The State of Uttar Pradesh, ; Paramjeet Singh @ Pamma Vs. State of Uttarakhand, and Rabindra Kumar Pal @ Dara Singh Vs. Republic of India, . Thus, only on account of the fact that in the morning, the appellants were not present in the Tent, it cannot held that their such conduct was incriminating against them, particularly, when they were taken into custody by the Police on the very next day. That apart, we also note that bicycle of the deceased was seized at the instance of appellant-Kumbhaj (A-1) on 05.10.2000 vide Ex. P/29. This also shows that the appellant was not absconding.

The appellants were taken into custody on 06.10.2000 and their discovery statements (Exs. P/3 & P/5) were recorded u/s 27 of the Evidence Act. According to the prosecution, appellant-Kumbhaj (A-1) stated about a piece of iron pipe and appellant-Milan (A-2) stated about a hammer and these 2 articles were found from the pit nearby the boring site.

Buffalo-cart of Dashrath (PW-1), as we have stated, was engaged for bringing water to the boring site. He says that he used to bring water on his buffalo-cart for boring machine and store it in a pit, which was situated near the boring site so that it could be frequently, used at the time of running of the boring machine. According to his evidence, the pit was having size of 4ft diameter and 4ft depth. Dashrath (PW-1) has further deposed that on 05.10.2000, in the morning he had gone to fill water in the pit. At that time, at the most, one Ghundi (pitcher) water was there in the pit. He admitted that the place was muddy and there was no article in the pit. According to the prosecution, the hammer and the iron pipe were seized from the pit. But, this creates a doubt on the seizure from that place because if the hammer and rod would have been thrown in the night of 04.10.2000, then Dashrath (PW-1) must have seen those articles in the morning of 05.10.2000. That apart, we also note that no blood stains were found on these articles in their chemical examination by the FSL. Therefore, the seizure of above articles on the alleged discoveries made by the appellants was doubtful.

So far as ''motive'' is concerned, the prosecution came with the case that father of appellant Kumbhaj (A-1) had quarrelled with the deceased, one day prior to the incident and he had threatened to commit his murder. Gomtibai (PW-12), mother of the deceased, has been examined in this regard. She has simply deposed that on Tuesday evening (one day prior to the incident), Kheduram (father of appellant-Kumbhaj, A-1) had abused the deceased in the above manner. She was declared hostile by the prosecution and was put to lengthy cross-examination. Even if we take her evidence to be reliable, the alleged threat was not given by the appellants. The prosecution has not brought any evidence on record to show that after the alleged threat given by Kheduram to the deceased, Kheduram had managed the 2 appellants to commit murder of the deceased. It is not a case that the appellants had given any threat to the deceased or his family members. Therefore, the said evidence of Gomtibai (PW-12) was not of much importance. So far as the appellants are concerned, it only creates suspicion against them.

In Ramesh Baburao Devaskar and Others Vs. State of Maharashtra, , it was held that suspicion against accused on the basis of ''motive'' to commit the crime cannot by itself lead to his conviction. Proof of motive by itself may not be a ground to hold the accused guilty. Similar view was taken by the Supreme Court in Sampath Kumar Vs. Inspector of Police, Krishnagiri, , that presence of the strong ''motive'' by itself would not be enough to support a conviction especially in a case where the sentence can be capital punishment. Reference was made to the case of N.J. Suraj Vs. State represented by Inspector of Police, . Reference was also made to the decision of Sunil Rai @ Paua and Others Vs. Union Territory, Chandigarh, , in which, it was held that "in any event, motive alone can hardly be a ground for conviction. On the materials on record, there may be some suspicion against the accused but as is often said suspicion, howsoever, strong cannot take the place of proof."

In a case based on circumstantial evidence, as it conies in many judgments, the circumstances set-forth by the prosecution must be fully established; the circumstances so established should be of conclusive nature and tendency; they should not be capable of being explained and the chain of circumstantial evidence also must be complete.

In the instance case, the circumstances were not fully established; they were not of conclusive nature and tendency; almost all the circumstances were capable of being explained and the chain of circumstantial evidence was also not complete.

We are of the view that in the above facts and circumstances, the appellants were entitled to benefit of doubt and their conviction cannot be sustained. For the foregoing reasons, the appeals are allowed. The conviction and sentences awarded to the appellants under Sections 302/34 IPC are set aside. The appellants are acquitted of the charges framed against them. It is stated that the appellants are on bail. Their bail bonds shall continue for a period of 6 months in view of Section 437A Cr. P.C.