2019 Supreme(Jhk) 380

IN THE HIGH COURT OF JHARKHAND
Aparesh Kumar Singh, Kailash Prasad Deo, JJ.
Jalendra Ganjhu @ Jalendhar Ganjhu - Appellant
Versus
The State of Jharkhand - Respondent
Criminal (Jail) Appeal (D.B.) No. 1021 of 2008 With Criminal Appeal (D.B.) No. 567 of 2009
Decided On : 22-01-2019

Headnote:

Indian Penal Code - Sections 302/34 – Criminal Procedure Code - Section 313 – Offence of murder - Imprisonment for life – Appeal against conviction - Informant is father of deceased upon whose recorded by Sub Inspector Officer-in-Charge, Police Station, formal FIR was registered being P.S. Case for offence under sections 302/34 of Indian Penal Code - Informant inter-alia alleged that his son was a daily wager who had been engaged in manual lab our and working in village in relation to construction of house for last two days - Yesterday Friday in morning his son along with his cousin brother had gone to receive wages for two days and to bring certain articles construction materials in connection with house - After meeting contractor construction materials such as Asbestos sheet cement lime indigo doors windows etc were loaded on tractor - While returning they reached village in evening - Who were also travelling on tractor had got down – Thereafter his son along with tractor driver son proceeded on tractor with articles loaded on it - At around in night he heard sound of tractor but his son did not return - In morning he was worried about him when certain villagers who had gone to forest to bring woods informed him on return that his son’s body was lying drenched with blood and he was found dead near dam - On this information he along with villagers went towards Dam and found dead body of his son by side of road near dam drenched in blood - It was alleged that tractor driver have killed his son and thrown his body on road - He put his thumb impression on fardbeyan in presence of villager – Held, Entire prosecution case hinges upon last seen theory as observed hereinabove - Circumstance of last seen together does not by itself and necessarily lead to inference that it was accused who committed crime - There must be something more establishing connectivity between accused and crime - Mere non-explanation on part of appellant by itself cannot lead to proof of guilt against appellant - These facts assume further importance on account of absence of proof of motive particularly when prosecution has failed to prove that there was any previous enmity between accused and deceased or any dispute prior in point of time - In facts of case in absence of proof of other circumstances only circumstance of last seen together and absence of satisfactory explanation by accused on their return while crossing village to informant father of deceased cannot be made basis of conviction - Circumstance of last seen together does not by itself and necessarily lead to inference that it was accused who committed crime - There must be something more establishing connectivity between accused and crime - Mere non-explanation on part of appellant in court considered opinion by itself cannot lead to proof of guilt against appellant - Theory of last seen—appellant having gone with deceased in manner noticed hereinbefore is singular piece of circumstantial evidence available against him - Conviction of appellant cannot be maintained merely on suspicion however strong it may be or on his conduct - These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between accused and deceased for a long time - Evidence that appellant had gone in evening and had stayed in night at house of deceased is very shaky and inconclusive - Even if it is accepted that they were there it would at best amount to be evidence of appellants having been seen last together with deceased - But it is settled law that only circumstance of last seen will not complete chain of circumstances to record finding that it is consistent only with hypothesis of guilt of accused and therefore no conviction on that basis alone can be founded - This Court held that failure of accused to offer any explanation in his statement under Section 313 Criminal Procedure Code alone was not sufficient to establish charge against accused - In facts of present case High Court committed an error in holding that in absence of any satisfactory explanation by accused presumption of guilt of accused stood unrequited and thus appellants were liable to be convicted - In absence of any definite motive or previous enmity between accused appellants and deceased or informant there could not be any basis to allege such intention on part of accused persons to cause death of son of informant - Having carefully scanned material evidence on record court are of considered opinion that conviction of appellants based upon last seen theory is fraught with grave doubt more so in absence of clear motive and categorical opinion of Medical Expert that all these injuries could be caused by fall from rolling vehicle - As such court are of view that it is not safe to uphold conviction of these appellants on basis of these circumstantial evidences on record primarily based on last seen theory - Court are therefore inclined to accord benefit of doubt to these two appellants - They are acquitted from charges - As such impugned judgment of conviction and order of sentence is set aside - Appellants who are in custody be released forthwith if not wanted in connection with any other case - Appeals are allowed