Nanka @ Bhagwandas vs State of C.G.

T.P. Sharma, J.—Criminal Appeal No. 252/2001 filed by Appellant-Nanka @ Bhagwandas and Criminal Appeal No. 157/2001 filed by Appellant-Munna alias Shivjal are arising out of the judgment of conviction and order of sentence dated 2.2.2001 passed by the Additional Sessions Judge, Surajpur, in Sessions Trial No. 93/99, therefore, they are being disposed of by this common judgment.

The aforesaid criminal appeals are directed against the judgment of conviction and order of sentence dated 2.2.2001 passed by the Additional Sessions Judge, Surajpur, in Sessions Trial No. 93/99, whereby and where under learned Additional Sessions Judge after holding the Appellants guilty for causing homicidal death of Bhuneshwar amounting to murder, convicted them u/s 302 of the Indian Penal Code and each of them have sentenced to undergo imprisonment for life and to pay a fine Rs. 1000/-, in default of payment of fine to further undergo rigorous imprisonment for 5 months.

Judgment is impugned on the ground that without there being any credible and clinching evidence relating to last seen, the Court below has convicted arid sentenced the Appellants and thereby committed illegality.

Case of the prosecution, in brief, is that on fateful day of 31.7.98 at about 6 p.m., the deceased Bhuneshwar, Fire Watcher (employee of the forest) was present near the forest nursery, the Appellants were coming by cycle with forest products i.e. saraiwood and axe from forest. The deceased stopped them, Appellant Munna assaulted the deceased by axe over his neck, the deceased fell down. Appellant Nanka also assaulted the deceased over his legs by axe. The deceased died on the spot. The F.I.R. was lodged vide Ex.P/1 by Bal Bhagwan Yadav (P.W. 1). Merg intimation was recorded vide Ex.P/15. Investigating officer proceeded for the scene of occurrence.

After summoning the witnesses vide Ex.P/4, inquest over the dead body of the deceased Bhuneshwar was prepared vide Ex.P/5. Dead body was sent for autopsy to Community Health Centre, Vishrampur vide Ex.P/12 A where autopsy was conducted by Dr. Pawan Kumar Sharma (P.W. 11) vide Ex.P/12 and found the following injuries:

(i) Incised wound over back side of the neck of 6 cm. x 2 cm. x 8 cm. and internal mussels, blood vessels, 7th cervical vertebra and spinal cart were found cut.

(ii) Incised wound over back side of left leg of 6 cm. x 3 cm. x 4 cm and blood vessels were found cut.

(iii) Incised wound over left leg of 6 cm. x 2 cm. x 5 cm, blood vessels were found cut. Cut fracture over tibia bone beneath the aforesaid injury was found

(iv) Multiple incised wound was found near right knee of 19 cm. x 10 cm. x 7 cm and blood vessels and right tibia were found cut.

Injuries were fatal in nature. Cause of death was shock as a result of excessive heamorrhage and death was homicidal in nature.

Bloodstained soil and plain soil were recovered from the spot vide Ex.P/2. Spot map was prepared by investigating officer vide Ex.P/3. Cycle of the deceased was recovered from kitchen garden of Bhajan Ram vide Ex.P/6. Spot map was also prepared by patwari vide Ex.P/8. Accused Nanka was taken into custody. He made disclosure statement of axe and bloodstained lungi vide Ex.P/9, same were seized at the instance of Appellant Nanka vide Ex.P/10. Sealed clothes of the deceased were seized vide Ex.P/11. Earlier the deceased has purchased cycle vide receipt Ex.P/17 and same was recovered from Ramkishun Yadav vide Ex.P/16. Seized articles were sent for chemical analysis vide Ex.P/18. Presence af blood over bloodstained lungi of Appellant Nanka was confirmed vide chemical report Ex.P/19 and presence of human blood was confirmed by serologist report vide Ex.P/20.

Statements of the witnesses were recorded u/s 161 of the Code of Criminal Procedure, 1973 (in short ''Code''). After completion of investigation, charge sheet was filed before the Additional Chief Judicial Magistrate, Surajpur, who in turn committed the case to the Court of Sessions Judge, Ambikapur from where learned Additional Sessions Judge, Surajpur, received the case on transfer for trial.

In order to prove the guilt of the accused/Appellants, the prosecution examined as many as 17 witnesses. Statements of the accused/Appellants were recorded u/s 313 of the Code where they denied the circumstances appearing against them and innocency and false implication is claimed. Appellant Munna has taken defence of elibi that on the date of incident he was not present (sic)n the village and he had gone to his in-law''s house. Appellant Nanka has also taken defence of elibi that on the date of incident, he was not present in the village, le was present at Ambikapur and at about 9.30 p.m. he went back to village Ranpurkala.

After affording an opportunity of hearing to the parties, learned Additional Sessions Judge, Surajpur has convicted and sentenced the accused/Appellants as aforementioned.

We have heard Mr. V.K. Pandey and Mr. Rakesh Pandey, counsel for the Appellants and Mr. Rakesh Jha, Dy. Govt. Advocate for the State/Respondent and perused the judgment impugned as also record of the court below.

Learned Counsel for the Appellants vehemently argued that conviction of the Appellants is based on last seen theory. In case of last seen theory, the prosecution is required to prove that soon before the death of the deceased, the deceased was seen last time alive with the Appellants and soon after he was found dead and there was no considerable time gap between last seen with the Appellants and recovery of dead body or death of the deceased and time gap was so small that possibility of any other person being with the deceased could completely be ruled out. Learned Counsel further argued that the prosecution has not adduced evidence of eyewitnesses. According to the case of the prosecution, the accused persons were coming towards forest along with forest product i.e. saraiwood in cycle and they were holding axe. The deceased was also coming towards forest. There was some altercation between the accused persons and the deceased and after sometime the deceased was found dead as a result of injuries. Only these witnesses are not sufficient to connect the Appellants in the crime in question. The deceased was having enmity with so many persons and the place of incident is not lonely place. The prosecution has not adduced any evidence that the Appellants are the only persons seen last time with the deceased when the deceased was alive, therefore, if the evidence of the prosecution is admitted in its face value, then same would not be sufficient for drawing inference that the present Appellants are the persons who have caused homicidal death amounting to murder of the deceased.

Learned Counsel placed reliance in the case of Hatti Singh v. State of Haryana (2007) 12 SCC 471 , in which the Apex Court has held that evidence of last seen by itself is not of much significance. It may, however, provide for a link in the chain and unless the time gap between the deceased of having been last seen in the company of the accused persons and the murder is proximate, it is difficult to prove the guilt of the accused only on that basis. Learned Counsel further placed reliance in the case of State of Goa Vs. Sanjay Thakran and Another, in which the Apex Court has held that in case of conviction based on circumstantial evidence, the prosecution is required to prove complete chain of circumstances incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with the innocence. It has also been held by the Apex Court that duration of time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration and if the prosecution establishes that the said time gap was so small that possibility of any other person being with the deceased could completely be ruled out.

On the other hand, learned State/Respondent counsel supported the impugned judgment and argued that in the present case, the prosecution has proved circumstantial evidence sufficient for conviction of the Appellants. Learned Counsel further argued that Ramlakhan (P.W. 12) has deposed in his evidence that he has seen the deceased alive last time along with the Appellants, they were discussing with the deceased. They were in possession of forest product. The deceased was employee of the forest. After sometime, dead body of the deceased was found with injuries in the same place. Learned Counsel also argued that the accused persons have taken defence of elibi that they were not present on the date of incident in the village or near the place of the incident. These circumstances are sufficient to establish that the Appellants are the persons who have committed the aforesaid offence.

In order to appreciate the arguments advanced on behalf of the parties, we have examined the material available on record. In the present case, homicidal death as a result of ante-mortem injuries of deceased Bhuneshwar is not substantially disputed by the Appellants; otherwise established by the evidence of Dr. Pawan Kumar Sharma (P.W. 11) who has conducted autopsy and autopsy report vide Ex.P/12 which reveals that four injuries were found over body of the deceased and death was homicidal in nature.

As regards the complicity of the Appellants in the crime in question, the Appellant Nanka @ Bhagwandas has taken defence in his examination u/s 313 of the Code that on the date of incident he was not present in the village or near the place of the incident. He used to go to Ambikapur to sale milk. On the date of the incident, he has gone to Ambikapur at about 11 a.m. to sale milk. At about 8 p.m. he purchased fodder (khali and daliya) for cattle and came back to his village at about 9.30 p.m. Appellant Munna has taken defence that two days prior to the incident he has gone to his in-law''s house at Bhuidand where he stayed and came back to his village after 5 to 6 days of the incident. The accused persons have specifically taken defence of elibi, but the prosecution is required to prove its case beyond all shadow of doubt. The prosecution cannot take the benefit of weakness of defence and the prosecution is required to stand on its own legs.

In the present case, the prosecution has adduced evidence of Vijay Narayan (P.W. 2), evidence of last seen theory Ramlakhan (P.W. 12) and recovery of weapon and bloodstained clothes at the instance of Appellant Nanka. Bal Bhagwan Yadav (P.W. 1), who has lodged the F.I.R., has deposed in his evidence that at about 6 p.m. on the date of incident, Vijay Yadav informed him that Bhuneshwar has been killed, then he went to the place of incident along with other persons and saw injured dead body of the deceased and has lodged the F.I.R. vide Ex.P/1. Distance of police station from the place of incident is 25 kilometers (according to the F.I.R.). Vijay Narayan (P.W. 2) has deposed in his evidence that on the date of incident, the Appellants had gone to cut wood from the forest. The deceased Bhuneshwar was posted as Fire Watcher to protect the forest. The deceased protested the Appellants, the Appellants resisted the same, then the deceased went to village Sakri. While the deceased was coining to his village and passing from the forest, he saw that the Appellants were carrying forest wood, at that time there was some altercation between the Appellants and the deceased and Appellant Munna assaulted the deceased by axe and went to his village by cycle Appellant Nanka also assaulted the deceased over his legs and neck by axe and took cycle of the deceased and went towards the village. Ram Kishun (P.W. 4), father of the deceased, has deposed in his evidence that on the date of incident, Vijay Yadav came to him and informed that the accused persons have killed his son Bhuneshwar, then he along with other villagers went to the place of incident where he saw the injured dead body of his son.

Learned Additional Sessions Judge has disbelieved the evidence of Vijay Narayan (P.W. 2) on the ground that he has not stated the aforesaid fact that he has seen the incident in his statement recorded u/s 161 of the Code (Ex.D/2) which has been recorded after 3 months of the incident. The evidence of this witness cannot be discarded only on the ground that the police has recorded his statement after long time of the incident or statement recorded by the police does not contents the fact which he has deposed in the Court. Vijay Narayan (P.W. 2) has admitted in paragraph 2 of his evidence that he is brother of this deceased (not real brother but relative) and according to his evidence, he has seen the incident, but he has not stated the fact to the police during the course of investigation. His conduct appears to be unnatural. Ex.D/2 is his police statement which reveals that he has not seen the incident, but he had heard the incident. After considering the conduct of Vijay Narayan (P.W. 2) and Ex.D/2, the Court below has rightly rejected the evidence of Vijay Narayan (P.W. 2).

The conviction of the Appellants is solely based on the evidence of Ramlakhan (P.W. 12). Defence has cross-examined this witness at length, in which he has admitted that distance of nursery where the incident took place is one furlong away from his house. The deceased was watchman of nursery. He has denied the suggestion that he has quarreled with Bhuneshwar on account of grazing the grass of nursery. He has also denied the suggestion that the deceased was having enmity with other persons. The evidence of Ramlakhan (P.W. 12) reveals that at the time of evening, the Appellant Nanka was coming by cycle from the forest, he was carrying saraiwood removed from the forest, Appellant Munna is also accompanying him, the deceased Bhuneshwar also came and there was some altercation between both the parties. Then he went to his house to chain the cattle and after chaining the cattle, he came out from his house, at that time he saw that the deceased Bhuneshwar was lying where Bhuneshwar and the Appellants were present at the time of altercation. He narrated the incident to Bishunram and then he went to the place of the incident and saw body of deceased Bhuneshwar. This evidence has gone unchallenged in his cross-examination and substantially this is the evidence relating to circumstances of last seen together.

As held by the Apex Court in the case of Hatli Singh) (2007) 12 SCC 471 (supra), in case of last seen together the evidence of last seen by itself is not of much significance. It may, however, provide for a link in the chain. But unless the time gap between the deceased of having been last seen in the company of the accused persons and the murder is proximate, it is difficult to prove the guilt of the accused only on that basis.

While dealing with the same question, the Apex Court in the case of State of Goa Vs. Sanjay Thakran and Another, held that in case of last seen together the proof of last seen together would be relevant if the prosecution establishes that in the intervening period there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime. Para 34 of the said judgment reads thus:

From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when 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 completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.

While dealing with the question of last seen together, the Apex Court in the case of Sahadevan @ Sagadevan Vs. State rep. by Inspector of Police, has held that if the prosecution on the basis of reliable evidence establishes that the missing person was last seen in the company of the accused and was never seen thereafter, then it would be obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. Para 19 of the said judgment reads thus:

The last circumstance relied on by the courts below pertains to the stand taken by the Appellants in the trial as to parting company with Vadivelu. Here we must notice that as discussed hereinabove, the prosecution has established the fact that Vadivelu was seen in the company of the Appellants from the morning of 5.3.1985 till at least 5 p.m. on the same day, when he was brought to his house and thereafter his dead body was found in the morning of 6.3.1985. Therefore, it has become obligatory on the Appellants to satisfy the court as to how, where and in what manner Vadivelu parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. In the instant case the Appellants have failed to discharge this onus. In their Statement u/s 313 Code of Criminal Procedure they have not taken any specific stand whatsoever. In the evidence of P.W. 25, it is elicited that on 5.3.1985 in the afternoon when Vadivelu was produced before the said witness, he after interrogation allowed Vadivelu to go, but then it is found from his evidence that he instructed A-1 to keep a watch over Vadivelu. In such circumstances, it was incumbent upon A-1 to have explained to the court in what circumstances they parted company. He has not given any explanation in this regard. On the contrary, the prosecution has established the fact that on the very day at about 5 p.m., Vadivelu was brought to the house of P.W. 1 by the Appellants which was seen by P.W. 5. This part of the evidence of P.W. 5 has gone unchallenged in the cross-examination and, therefore, we will have to proceed on the basis that, what is stated by P.W. 5 in this regard is true. If that be so, the prosecution has established the fact that on 5.3.1985 at 5 p.m. Vadivelu was still in the company of these Appellants and, therefore, in the absence of any specific explanation from the Appellants in this regard, and in view of the other incriminating circumstances against the Appellants having been proved by the prosecution, an adverse inference will have to be drawn against these Appellants as to their part in the missing of Vadivelu. At this point, it may be relevant to note that though no specific stand has been taken by the Appellants as to their parting company with Vadivelu, in their statement u/s 313 Cr.P.C, it is seen from the evidence of P. Ws. 1 and 5 that A-1 told the said witnesses on the night intervening between 5-3-1985 and 6-3-1985 that Vadivelu had escaped from the Police Station when he was allowed to sleep in the verandah of the Police Station. This explanation given by A-1 to P.W. 1 which was also heard by P.Ws.5 and 14, clearly shows that the same is totally false and obviously was an excuse made by the Appellants to conceal the true facts and, therefore, this circumstance of A-1 making a false statement to P.W. 1 can also be taken as a circumstance against the Appellants, in establishing the Appellants'' guilt. This Court in more than one case has held, that if the prosecution, based on reliable evidence, establishes that the missing person was last seen in the company of the accused and was never seen thereafter, it is obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. See Joseph Poulo Vs. State of Kerala, . Therefore, we are in agreement with the finding of the courts below that circumstance No. 7 also stands established against the Appellants.

In the present case, according to the evidence of Ramlakhan (P.W. 12), he has seen the Appellants along with the deceased and there was some altercation between both the parties, he came to his house to chain his cattle and after chaining his cattle he came out from his house and saw that body of Bhuneshwar was lying where altercation between the Appellants and deceased took place which was one furlong away from his house. The evidence of this witness reveals that virtually there was no time gap between the fact that the Appellants were in company of the deceased and there was some altercation between them relating to forest product which they were taking and commission of murder of the deceased. Distance of the house of this witness and the place of incidents also short.

The Appellants have not offered any explanation relating to parting of the company, inter alia, they have taken specific defence of elibi that both the Appellants were not present at the time of incident in the place of incident or even in the village. In their examination u/s 313 of the Code, the Appellants have not adduced any evidence to show that Appellant Nanka was present at Ambikapur in some shop to purchase fodder (khali and daliya) or Appellant Munna was present in his in-law''s house at Bhuidand, though they were in position to adduce such evidence. It reveals that the Appellants have not offered any reasonable explanation that when they have parted the company of the deceased, but they have taken defence that they were not present which is false in the light of the evidence of Ramlakhan (P.W. 12) and in the light of the evidence of other witnesses who have specifically deposed that they have heard that the Appellants were present at the time of commission of offence with the deceased. The evidence ofRamlakhan (P.W. 12) is sufficient for drawing inference that he has seen the Appellants along with the deceased and there was some altercation between the Appellants and the deceased and within few minutes he found body of Bhuneshwar (dead body was lying) at the place where altercation took place.

In case of conviction based on circumstantial evidence, the prosecution is required to prove the motive. In the present case, admittedly, the deceased was working as Fire Watcher and was watchman of nursery. The accused persons were carrying forest product i.e. saraiwood which the deceased has objected. It shows that the deceased has caught hold the Appellants while they were coming towards the forest after committing forest offence and carrying forest product and when they were caught red-handed by the deceased, then they have caused fatal injuries resulting into death of the deceased.

After appreciating the evidence available on record, learned Additional Sessions Judge has convicted the Appellants u/s 302 of the Indian Penal Code and sentenced them to undergo imprisonment for life and fine of Rs. 1000/-, in default of payment of fine to further undergo rigorous imprisonment for 5 months. The conviction is based on the evidence ofRamlakhan (P.W. 12). The evidence of Ramlakhan (P.W. 12) inspires confidence, trustworthy and sufficient for drawing inference that the Appellants are the persons who have caused fatal injuries resulting into death of the deceased Bhuneshwar with intent to causing his death when they were caught red-handed by the deceased while they were removing forest product from the forest. The conviction and sentence imposed upon the Appellants are based on clinching and credible evidence of solitary witness sufficient for drawing inference1 and is sustainable under the law. The Court below has rightly convicted and sentenced the Appellants.

For the foregoing reasons, we do not find any infirmity in the impugned judgment warranting any inference. Consequently, Criminal Appeal Nos. 252/2001 and 157/2001 being devoid of merit are liable to be dismissed and are dismissed accordingly.