Sahani Ram Agariya vs State Of Chhattisgarh
2022 Latest Caselaw 2548 Chatt

                                                                              Cr.A.No.1051/2012

                                           Page 1 of 11

                                                                                              NAFR

                  HIGH COURT OF CHHATTISGARH, BILASPUR

                            Criminal Appeal No.1051 of 2012

 {Arising out of judgment dated 12-10-2012 in Sessions Trial No.92/2011 of
                       the Sessions Judge, Raigarh}

Sahani Ram Agariya, S/o Rajau Ram Agariya, Aged 50 years, Occupation
Agriculture (Labour), R/o Village Junvani Kudari Para, P.S. Dharamjaigarh,
Distt. Raigarh (C.G.)
                                                                    (In Jail)
                                                              ---- Appellant

                                              Versus

State of Chhattisgarh, Through D.M. Raigarh (C.G.)
                                                                                 ---- Respondent

------------------------------------------------------------------------------------------------------
For Appellant:                   Mr. Vineet Kumar Pandey, Advocate.
For Respondent/State: Mr. Himanshu Kumar Sharma, Panel Lawyer.
------------------------------------------------------------------------------------------------------

                           Hon'ble Shri Sanjay K. Agrawal and
                             Hon'ble Smt. Rajani Dubey, JJ.

Judgment On Board (21/04/2022)

Sanjay K. Agrawal, J.

1. This criminal appeal preferred under Section 374(2) of the CrPC is

directed against the judgment of conviction recorded and sentence

awarded against the appellant herein for offence under Section 302 of

the IPC sentencing him to undergo imprisonment for life and pay a

fine of ₹ 5,000/-, in default of payment of fine to further undergo

rigorous imprisonment for two years, vide judgment dated 12-10-2012

passed by the Sessions Judge, Raigarh in Sessions Trial No.92/2011.

2. Case of the prosecution, in brief, is that on 4-6-2011 at about 1 p.m. at

Village Chulhakhol (Singramuda), in dense forest, near Singramuda

talab, the appellant assaulted his wife Usnendi Bai by farsa (sharp

edged weapon) and chopped her head from the rest of her body and Cr.A.No.1051/2012

thereby committed the offence punishable under Section 302 of the

IPC. It is admitted position on record that deceased Usnendi Bai was

second wife of the appellant herein whom he has married in chudi

form and they were living together. Further case of the prosecution, in

brief, is that on 4-6-2011 at about 6.10 p.m. Mehattar (PW-2) lodged

report that on 4-6-2011, at about 1 p.m. his mother Phulkumari (PW-3)

came back from field located at Singramuda forest and informed that

the appellant herein has quarrelled with his wife and made injury by

axe on her neck and chopped her head from the rest of the body and

the dead body is lying therein and when his mother shouted, as to why

the appellant has killed his wife Usnendi Bai, the appellant ran way

from the scene of occurrence towards forest. It is the further case of

the prosecution that Mehattar (PW-2) came on the spot along with

Vijay, Shuklal, Malikram etc., and reported the matter and as per his

report, FIR Ex.P-1 under Section 302 of the IPC was registered and

morgue intimation was also registered vide Ex.P-2. The matter was

taken-up for investigation and spot map was prepared. Inquest was

conducted and dead body was sent for postmortem to Civil Hospital,

Dharamjaigarh. Postmortem was conducted by Dr. S.S. Bhagat (PW-

10) and postmortem report (Ex.P-13) was recorded in which cause of

death was said to be syncope due to excessive bleeding (whole blood

of body) as a result of incised of head at the neck from the body and

further, death is said to be homicidal in nature. Thereafter, the

accused was taken into custody and his memorandum statement

Ex.P-4 was recorded pursuant to which farsa / axe was recovered

vide Ex.P-3 in presence of witnesses. Seizure Ex.P-3 was made at

the instance of the accused at his residence in Village Junvani, Kudari Cr.A.No.1051/2012

Para and apart from plain soil and bloodstained soil, ladies footwear

and other articles were also seized and sent to the Forensic Science

Laboratory, but the FSL report was not brought on record. Statements

of witnesses were recorded under Section 161 of the CrPC..

3. After completion of investigation, charge-sheet was filed against the

appellant for offence under Section 302 of the IPC before the

jurisdictional criminal court which was committed to the Court of

Sessions for hearing and disposal in accordance with law.

4. The trial Court has framed charge under Section 302 of the IPC

against the appellant and proceeded on trial. The accused / appellant

abjured guilt and entered into trial. The prosecution in order to bring

home the offence examined as many as 12 witnesses and exhibited

23 documents Exhibits P-1 to P-23. Statement of the appellant was

recorded under Section 313 of the CrPC in which he abjured guilt and

pleaded innocence. Defence of the accused was that he was not with

his wife on the date of incident, he was in his house, she had gone

alone to the forest to pluck one kind of fruit ( dori) which is used for

preparing oil, he has not committed the murder of his wife and he has

been falsely implicated.

5. The trial Court after completion of trial and after appreciating oral and

documentary evidence on record, convicted the appellant under

Section 302 of the IPC and sentenced him to undergo imprisonment

for life as noticed in the opening paragraph of this judgment against

which this appeal under Section 374(2) of the CrPC has been

preferred by him.

6. Mr. Vineet Kumar Pandey, learned counsel appearing for the

appellant, would submit the plea of last seen together of the appellant Cr.A.No.1051/2012

with the deceased has not been established and therefore conviction

is bad in law. Statements of Mehattar (PW-2) and Phulkumari (PW-3)

are not trustworthy and liable to be rejected. Memorandum statement

of the accused Ex.P-4 and consequent seizure of axe vide Ex.P-3 has

not been established, as the prosecution witnesses Mehattar (PW-2)

and Shuklal Uraon (PW-7) have not supported the seizure and

memorandum. Blood found on the farsa seized at the instance of the

accused has not been proved to be human blood and furthermore,

blood group has not been ascertained. As such, there is no evidence

on record to convict the appellant for offence under Section 302 of the

IPC and therefore conviction is liable to be set aside.

7. Mr. Himanshu Kumar Sharma, learned State counsel, would submit

that the theory of last seen together has been duly established on the

basis of the testimony of Phulkumari (PW-3) and Mehattar (PW-2) -

son of Phulkumari (PW-3), and furthermore, Mehattar (PW-2) has duly

proved the memorandum and consequent seizure of axe. Even K.P.

Jaiswal (PW-12) - investigating officer has proved the fact of

memorandum and seizure and his statement cannot be discarded only

on the ground that he is the police officer who has made investigation.

Even otherwise, non-submission of FSL report is not fatal to the

prosecution, particularly when the theory of last seen together and

thereafter seizure of axe which has been made on the basis of the

memorandum statement made by the accused, has duly been

established. As such, the appeal is liable to be dismissed.

8. We have heard learned counsel for the parties and considered their

rival submissions made herein-above and also went through the

record with utmost circumspection.

Cr.A.No.1051/2012

9. The first question would be, whether the death of deceased Usnendi

Bai was homicidal in nature which the trial Court has answered in

affirmative. A careful perusal of the postmortem report Ex.P-13 would

show that cause of death is syncope due to excessive bleeding as rest

of the body was separated from neck. Furthermore, taking into

account the statement of Dr. S.S. Bhagat (PW-10) - medical officer

who has clearly stated that since neck of deceased Usnendi Bai was

separated from rest of the body on account of which there was

excessive bleeding, death was homicidal in nature. Considering the

nature of medical evidence available on record and considering the

finding recorded by the learned trial Court, we are unable to take other

view of the matter to hold that death of deceased Usnendi Bai was not

homicidal in nature and we hereby affirm the finding that death was

homicidal in nature. Even otherwise, it has not been seriously disputed

by learned counsel for the appellant. We accordingly hold that the

death of the deceased was homicidal in nature.

10. Now, the next question is, whether the death of the deceased was

caused by the appellant which the trial Court has also recorded in

affirmative and it has been seriously disputed by learned counsel for

the appellant.

11. The basic finding which the trial Court has recorded is that the

appellant and his wife both were last seen together on the date of

offence at the dense forest (Singramuda) near the field of Phulkumari

(PW-3) and Mehattar (PW-2) - son of Phulkumari (PW-3).

12. It is admitted position on record that the incident occurred in

Singramuda forest and near the place of incident, Phulkumari (PW-3)

and Mehattar (PW-2) had their fields. In the statement recorded Cr.A.No.1051/2012

under Section 161 of the CrPC, Phulkumari (PW-3) has clearly stated

that she has seen the appellant assaulting his wife Usnendi Bai by

axe after brief quarrel, but in her statement before the Court, she has

only stated that she was sitting in the field near a tree then the

appellant and the deceased came near Singramuda river and when

his wife i.e. the deceased after taking bath was going to her house,

the appellant chased her holding axe in his hand, and on hearing the

voice of the deceased, when this witness (PW-3) shouted on the

appellant stating, "why you were quarrelling", the appellant ran away

from the field. At that stage, Phulkumari (PW-3) has been declared

hostile. In cross-examination also, she has stated that she has not

seen the appellant causing farsa blow to the deceased. But on the

question put to her by the court in paragraph 5 of her statement, she

has clearly replied that she has identified the appellant and the

deceased quarrelling, though much has been sought to be taken from

paragraph 6 of her statement, but statement of witness has to be read

as a whole and it cannot be read by picking one sentence and

accordingly, statement of witness cannot be disbelieved by picking

one sentence or one word from the entire statement.

13. A careful perusal of paragraphs 4, 5 and 6 of the statement of

Phulkumari (PW-3) would clearly establish that on the fateful day, in

Singramuda forest, near the field of Mehattar (PW-2) and Phulkumari

(PW-3), the deceased and the appellant both were quarrelling and the

appellant was having farsa in his hand and the said incident was

reported by Phulkumari (PW-3) to his son Mehattar (PW-2), though he

has been declared hostile, but the fact that the appellant was

quarrelling with his wife near their field is duly established. As such, Cr.A.No.1051/2012

the theory of last seen together of the appellant and the deceased has

duly been established.

14. The Supreme Court in the matter of State of Karnataka v. M.V.

Mahesh1 while dealing with the theory of last seen together has held

as under: -

"3. ... Merely being seen last together is no enough. What has to be established in a case of this nature is definite evidence to indicate that Beena had been done to death of which the respondent is or must be aware as also proximate to the time of being last seen together. No such clinching evidence is put forth. It is no doubt true that even in the absence of the corpus delicti it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the court."

15. In the matter of Arjun Marik v. State of Bihar2, their Lordships of the

Supreme Court have held that where the appellant was alleged to

have gone to the house of one Sitaram in the evening of 19-7-1985

and had stayed in the night at the house of deceased Sitaram and

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 Supreme Court held as under: -

"31. ... 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 the guilt of the accused and, therefore, no conviction, on that basis alone, can be founded."

16. So far as the last seen aspect is concerned, it is necessary to take

note of the two decisions of the Supreme Court. First one is State of

U.P. v. Satish3 in which it was noted as follows: - (SCC p. 123, para

22)

1 (2003) 3 SCC 353 2 1994 Supp (2) SCC 372 3 (2005) 3 SCC 114 Cr.A.No.1051/2012

"22. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the 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 the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2."

17. Second decision of the Supreme Court in respect of last seen aspect

is Ramreddy Rajesh Khanna Reddy v. State of A.P.4 in which it was

noted as follows: -

"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration."

18. In the matter of State of Rajasthan v. Kashi Ram5, the Supreme Court

while dealing with last seen theory held as under: -

"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him

4 (2006) 10 SCC 172 5 (2006) 12 SCC 254 Cr.A.No.1051/2012

by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re.6"

19. The Supreme Court in the matter of Bodhraj v. State of J&K7, held

that: (SCC p.63, para 31)

"31. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible."

20. Now, the next circumstance against the appellant is that pursuant to

his memorandum statement vide Ex.P-4, bloodstained axe has been

recovered vide Ex.P-3. Memorandum statement has been recorded

in presence of two witnesses namely, Mehattar (PW-2) and Shuklal

Uraon (PW-7) and investigation has been conducted by K.P. Jaiswal

(PW-12). It has seriously been contended by learned counsel for the

appellant that the memorandum statement Ex.P-4 is not proved in

accordance with law as both the prosecution witnesses have not

proved the fact of memorandum statement having been made and

recovery has been made pursuant to the said memorandum

statement. Though on some other point, the prosecution has declared

Mehattar (PW-2) hostile, but in paragraph 4 of his statement before 6 AIR 1960 Mad 218 : 1960 Cri LJ 620 7 (2002) 8 SCC 45 Cr.A.No.1051/2012

the Court, on being asked, he has clearly stated that the axe / tangi

(farsa) was seized by the police on being produced by the appellant

from his residence. Likewise, K.P. Jaiswal (PW-12) has clearly stated

in paragraph 4 of his statement that on being enquired pursuant to the

memorandum statement Ex.P-4, tangi / farsa was seized. He has

clearly stated that pursuant to the memorandum statement, the

appellant has produced the axe from his house and on being cross-

examined, he has maintained his version that axe was seized on

being produced by the appellant. As such, it is quite established that

on the memorandum statement of the appellant herein, recovery of

axe was made by the police which is duly established and merely

because one of the witnesses Shuklal Uraon (PW-7) has not

supported the fact of recovery and seizure of axe from the appellant, it

cannot be concluded that the memorandum statement and seizure

has not been proved. We hereby reject the argument as submitted by

learned counsel for the appellant.

21. Lastly, it was submitted that though bloodstained axe was recovered

and was sent for chemical analysis to the FSL, but report was not

brought on record duly establishing that no human blood was found

on axe and no blood grouping was made, therefore the offence in

question is not proved.

22. The Supreme Court in the matter of Balwan Singh v. State of

Chhattisgarh and another8 has clearly held that non-confirmation of

blood group or origin of the blood may assume importance in cases

where the accused pleads a defence or alleges mala fides on the part

of prosecution, or accuses the prosecution of fabricating the evidence

8 (2019) 7 SCC 781 Cr.A.No.1051/2012

to wrongly implicate him in the commission of crime and observed as

under: -

"23. From the aforementioned discussion, we can summarise that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The Court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match."

23. Furthermore, since the theory of last seen together has duly been

established, the explanation offered by the appellant qua question

No.70 of his statement recorded under Section 313 of the CrPC that

on the date of incident he was not with his wife, is not acceptable as

from the statements of Mehattar (PW-2) and Phulkumari (PW-3) it has

clearly been established that the appellant has duly been identified

and seen by Phulkumari (PW-3) quarrelling with his wife Usnendi Bai.

As such, the plea of last seen together on that day has duly been

found established. The appellant has offered false explanation taking

the plea of alibi.

24. In view of the aforesaid discussion, we are unable to hold that the

learned Sessions Judge is unjustified in convicting the appellant under

Section 302 of the IPC. We accordingly dismiss the appeal.

                 Sd/-                                              Sd/-
          (Sanjay K. Agrawal)                               (Rajani Dubey)
                Judge                                             Judge
Soma