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2008(1) Crimes 383 (Chhatt.)
CHHATTISGARH HIGH COURT
L.C. Bhadoo and Sunil Kumar Sinha, JJ.
Gendu —Appellant
versus
State of Chhattisgarh —Respondent
Criminal Appeal No. 435 of 2001
Decided on 13.12.2007
Counsel for the Parties:
For the Appellant:Shri Sandeep Dubey, Advocate.
For the Respondent:Shri Satish Gupta, Dy. Government Advocate.
IMPORTANT POINT
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.
Headnote:Indian Penal Code, 1860—Section 302 and 201—Conviction of appellant on circumstance of last seen together—Appeal—Deceased and appellant with other two accused consumed liquor in house of PW3 in night—Some quarrel took place—Deceased and appellant left the house and appellant came back to the house after some time—Other two accused then left the house—Dead body of deceased was noticed by PW3 in the well—Last seen theory came into play where time gap between point of time when the accused and deceased were seen last alive and when deceased was found dead was so small that possibility of any other person being author of crime became impossible—PW2 contradicted PW3 and her husband PW1 that deceased and appellant left the house of PW3 deposing that deceased left the house and then all three accused left the house together—Incident of deceased and accused leaving the house was in the night of 5.9.1997 and dead body was found in the well on 7.9.1997 morning—Conviction could not be sustained. (Paras 9 and 11 to 13)
Result: Appeal allowed.
JUDGMENT
Sunil Kumar Sinha, J.— Being aggrieved with the judgment of conviction and order of sentence dated 15th March, 2001 passed by the Additional Sessions Judge, Kanker, in Sessions Trial No. 444/ 1997, the appellant has preferred this appeal. The appellant and two other accused persons namely Digvijay and Sudama were charged with the offences punishable under Sections 302/34 and 201 I.P.C. The appellant has been convicted under Sections 302 & 201 I.P.C. and sentenced to undergo imprisonment for life and R.I. for two years and to pay a fine of Rs. 5,000, in default thereof, to further undergo 4 months imprisonment with a further direction that the sentences shall be served according to the provisions of Section 427(2) of the Code of Criminal Procedure. The other two accused persons have been acquitted.
2. The brief facts are that in the night of 5.9.2007, the deceased namely Narayan Das Meshram and all the 3 accused persons as also Kailash (PW1) went to the house of Girja Bai (PW3) where they consumed liquor. Some quarrel took place there. Thereafter the deceased and the appellant firstly left the house, the appellant returned back after a shortwhile whereas the deceased did not return back and then other accused persons also left the house of Girja Bai. After that the deceased was not seen in the village and ultimately the dead body of the deceased was seen by Girja Bai in her well on 7.9.2007 at about 8 a.m. She disclosed this fact to the villagers including Kailash (PW1), who reported the matter to the Police, on which, merg intimation (Ex. P1) was recorded, the body recovery Panchnama was prepared under Ex. P5. During the investigation, inquest (Ex. P3) on the body of deceased was prepared. Site plan (Ex. P4A) was prepared. The S.H.O. also prepared a site plan under Ex. P6. One pair of sleepers were seized vide seizure memo (Ex. P2). Some pieces of clothes (which the deceased used to sell as a clothe vender), one Bicycle and a pair of plastic sleepers were seized under Ex. P7. One towel was also seized under Ex. P11. One torch was seized under Ex. P12. The body was sent for post-mortem examination to District Hospital, Kanker, under Ex. P16. The post-mortem examination was conducted by Dr. M.A. Naseem (PW16) who noticed the following injuries/features on the body of the deceased:
(i) the dead body was in the stage of high decomposition. The skin was peeled of on most of the parts. Micro organisms were present on both the eyes, left ear and left side of the neck.
(ii) Tongue was protruded from mouth and was pressed between the teeth.
(iii) There was a contusion, size 2 cm x 5 cm on right supra clavicular rigor, which was ante-mortem.
(iv) A clear ligature mark was present on the front side of the neck, which was placed in between thyroid and hyoid cartilage and was extending towards right and left muscles of the neck. Upper skin of the ligature mark has become white. The underlying tissues were compressed with ecchymoses present. This was also ante-mortem in nature.
(v) The entire body was swollen. Private part and anus were also swollen.
In the internal examination, ecchymoses was present beneath the ligature mark. Both the lungs were congested and putrification has started. Right chamber of the heart was filled with clotted blood. Left chamber was empty. Stomach, small intestine and large intestine were empty. Putrification has also started in lever, spleen and kidneys. The autopsy surgeon opined that the cause of death was asphyxia due to constriction of ligature around the neck during throttling. It was homicidal in nature. He prepared his report Ex. P16A. Based on all this a First Information Report Ex. P1A was registered.
3. After completion of the usual investigation, charge-sheet was filed in the Court of Additional Chief Judicial Magistrate, Kanker, who in turn committed the case to the Court of Sessions Judge, Kanker, from where it was received by the Additional Sessions Judge, who conducted the trial and
