Chattisgarh High Court
Kavilas vs State Of Chhattisgarh on 27 July, 2021
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 593 of 2020
Kavilas S/o Late Babulal Kunjam Aged About 32 Years R/o Village Dihipara Ghathula,
Police Station Sihava, District Dhamtari Chhattisgarh., District : Dhamtari,
Chhattisgarh
---- Appellant
Versus
State Of Chhattisgarh Through Station House Officer, Police Station Sihava, District
Dhamtari Chhattisgarh., District : Dhamtari, Chhattisgarh
---- Respondent
27/07/2021 Shri Qamrul Aziz, counsel for the appellant.
Shri Rajendra Tripathi, Panel Lawyer for the State.
Heard on IA No.1/20, application for suspension of sentence
and grant of bail to the appellant.
The appellant has been convicted under Sections 302, 376,
201 IPC and sentenced to undergone life imprisonment with fine of
Rs.500/-under Section 302 IPC, RI for 7 years with fine of Rs.500/-
under Section 376 IPC and RI for 7 years with fine of Rs.500/- under
Section 201 IPC, vide judgment of conviction and order of sentence
dated 3.3.2020 passed in ST No.55 of 2018 by learned Additional
Sessions Judge (FTC), Dhamtari, District- Dhamtari (CG).
Learned counsel for appellant would argue that the conviction
of the appellant is founded on extremely doubtful evidence which
only creates suspicion and nothing more. He would argue that the
evidence of prosecution witness of last seen is to the effect that the
appellant was found present in the house with the deceased in the
morning of 27.7.2018 and this witness of last seen also states that in
the afternoon, the house was found locked. Dead body was seen
next day sometime in the morning or afternoon in an open house
where the deceased was found lying dead. The postmortem was
conducted on 29.7.2018 at 11:40 AM and according to doctor, the
time elapsed since death was 24 to 30 hrs. That means the deceased
died sometime between 11:30 night of 27 th July 2018 to 11:30
morning of 28th July 2018, whereas, the appellant was found in the
company of the deceased only in the morning of 27 th July 2018 and,
thereafter, he was not seen with her. He would further submit that
recovery of various articles do not connect the appellant with the
alleged commission of offence and no connection could be
established between the SIM card and battery alleged to be
recovered on the memorandum of the appellant with commission of
offence. The call records which have been brought on record also
did not lead to any conclusion towards involvement of the appellant
in the alleged commission of offence and thus, the entire case of the
prosecution is based only on last seen theory which is not in the
proximity of the time of death of the deceased.
On the other hand, learned counsel for the State opposed the
application. He submits that the evidence as led by the prosecution
on which basis conviction is founded is that the appellant and the
deceased were known to each other and the appellant was frequent
visitor in the house of the deceased. There is evidence of last seen
of the appellant with the deceased in the morning of 27.7.2018 and
thereafter the house of the deceased was found locked and the
deceased was not seen thereafter. Next day, her dead body was
found in her house. Another witness of the prosecution Rambai
(PW10) has stated that in the evening, the appellant had come and
there was a quarrel. He had thrown his mobile phone on the floor
due to which the SIM card and battery were torn apart and,
thereafter, the appellant had collected and kept these articles with
him and went away. Mobile phone found on the spot was not having
any SIM card or battery and the SIM and battery was found at
another place on the basis of the disclosure statement given by the
appellant. Even though there is no other evidence to connect the
appellant, the aforesaid evidence, coupled with the evidence of last
seen, proves involvement of the appellant in the commission of
offence.
Taking into consideration the submissions made by learned
counsel for the parties, particularly taking into consideration that
the conviction is mainly founded on the evidence of last seen,
appellant last seen with the deceased in the first half of the day and
according to postmortem report deceased died sometime in the
night after 11:40 pm on 27th July 2018 and there being no other
clinching evidence, we are inclined to allow the application.
The application is accordingly allowed and it is directed that
the substantive jail sentence imposed upon appellant shall remain
suspended during pendency of the appeal and he shall be released
on bail on his furnishing a personal bond of Rs.25,000/- along with
two local sureties of the like amount to the satisfaction of the
concerned trial Court, for his appearance before the concerned trial
Court on 28 th September 2021 and on all such further dates as
may be directed by the said Court, interval being not less than six
months, till final disposal of this appeal.
Post the appeal for final hearing in its due turn.
Sd/- Sd/-
(Manindra Mohan Shrivastava) (Vimla Singh Kapoor)
Judge Judge
Praveen
