Bhagwat Prasad Prajapati vs State Of Chhattisgarh
2022 Latest Caselaw 5240 Chatt

                                       Page 1 of 9


                                                                                   NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                          Criminal Appeal No. 292 of 2016

Bhagwat Prasad Prajapati S/o Sakhiya Prajapati, aged about 48 years,
caste-Kumhar, R/o Kotadol, Dakshinpara, Police Station Kotadol, District
Koriya (CG)
                                                                          ---- Appellant
                                                                                (In Jail)
                                        Versus
State of Chhattisgarh Through Station House Officer, Police Station Kotadol,
District Koriya (CG)
                                                                       ---- Respondent
-------------------------------------------------------------------------------------------

For Appellant : Mr.Arjunlal Singhroul, Advocate For Respondent-State : Mr.Arijit Tiwari, Panel Lawyer

-------------------------------------------------------------------------------------------

DB: Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sachin Singh Rajput

Judgment on Board (18.8.2022) Sanjay K. Agrawal, J

1. This criminal appeal filed by the appellant-accused under Section

374(2) of CrPC is directed against the impugned judgment of

conviction and order of sentence dated 5.8.2015, passed by the

learned First Additional Sessions Judge, Manendragarh in Sessions

Trial No.20/2014, whereby the appellant-accused has been convicted

for offence under Section 302 of the IPC and sentenced to undergo

imprisonment for life and further sentenced to fine of Rs.500/-, in

default of payment of fine, to further undergo S.I. for 3 months.

2. Case of the prosecution, in brief, is that on 18.10.2013 at about 11

a.m. at Bhumka Forest, Police Station Kotadol, the appellant

strangulated his wife Gujratia Bai and thereby committed the offence

under Section 302 of the IPC. It is further case of the prosecution that

on 18.10.2013 the appellant & his wife Gujartiya Bai both came into

the house of his son Sudama Prasad (PW-1) at Dakshinpara, village

Kotadol, some quarrel took place between the appellant & his wife and

thereafter they have gone to forest and at about 11.30 a.m. the

appellant informed to Ramratan (PW-2) that his mother-in-law Gujratia

Bai has died by hanging and thereafter Ramratan (PW-2) informed to

Sudama Prasad (PW-1). Thereafter, Sudama Prasad (PW-1) reported

the matter to the Police Station- Kotadol vide Ex.P-5. Merg intimation

was registered vide Ex.P-6. Spot map was prepared by patwari vide

Ex.P-7. Inquest was conducted. Dead body of deceased Gujratia Bai

was sent for postmortem to Community Health Center, Janakpur,

where Dr.Abhaya Gupta (PW-14) conducted postmortem vide Ex.P-20

and opined that cause of death was asphyxia due to strangulation and

death was homicidal in nature. Sari and footwear were seized from the

spot vide Ex.P-11. The appellant was arrested vide Ex.P-13. After due

investigation, the police filed charge-sheet in the Court of Judicial

Magistrate First Class, Janakpur, who in turn, committed the case to

the Court of Sessions, Koriya (Baikunthpur), from where the First

Additional Sessions Judge, Manendragarh received the case on

transfer for trial. The appellant-accused abjured his guilt and entered

into defence that he has not committed any offence and he has falsely

been implicated in crime in question.

3. In order to bring home the offence, the prosecution examined as many

as 14 witnesses and exhibited 21 documents. The appellant-accused

examined none in his defence and no document has been exhibited in

his support.

4. The trial Court upon appreciation of oral and documentary evidence

available on record, by its judgment dated 5.8.2015, came to the

conclusion that death of Gujratia Bai was homicidal in nature and

theory of last seen together has been proved and proceeded to convict

the appellant for offence under Section 302 of the IPC and sentenced

him as aforementioned, against which, this criminal appeal has been

filed.

5. Mr.Arjunlal Singhroul, learned counsel for the appellant, would submit

that there is no evidence against the appellant to connect him in

offence in question and he has been convicted by recording perverse

finding. Even otherwise, only on the basis of theory of last seen

together, the appellant cannot be convicted for offence under Section

302 of the IPC as statement of Sudama Prasad (PW-1) is shaky and

his version is not acceptable. Therefore, the impugned judgment is

liable to be set aside.

6. On the other hand, Mr.Arijit Tiwari, learned Panel Lawyer for the

respondent/State, would support the impugned judgment and submit

that death of deceased Gujratia Bai to be homicidal is established and

furthermore, theory of last seen together has been established and the

appellant has not offered any explanation how the deceased has died

and as such, the prosecution has proved its case beyond reasonable

doubt and therefore, the appeal deserves to be dismissed.

7. We have heard learned counsel appearing for the parties and

considered their rival submissions made herein-above and also went

through the records with utmost circumspection.

8. The first question for consideration would be, whether death of

deceased Gujratiya Bai was homicidal in nature ?

9. The trial Court after appreciating oral and documentary evidence

available on record particularly relying upon the evidence of Dr.Abhaya

Gupta (PW-14), who has conducted postmortem vide Ex.P-20, has

come to the conclusion that cause of death was asphyxia due to

strangulation and death was homicidal in nature. After hearing learned

counsel for the parties and after considering the submissions, we are

of the considered opinion that the finding recorded by the trial Court

that death of deceased Gujratia Bai was homicidal in nature is a

finding of fact based on evidence available on record. It is neither

perverse nor contrary to record. We hereby affirm that finding..

10. The next question for consideration would be, whether the

appellant is author of the crime ?

11.The trial Court has recorded that theory of last seen together has been

proved by the prosecution on the statement of Sudama Prasad (PW-1)

(son of the deceased & the appellant) and footwear, sari and tobacco

box were recovered from the spot, but witnesses of seizure namely

Ghuranram (PW-4) and Sukhdeo Singh (PW-7) have not supported the

seizure proceeding. As such, it is no use of the prosecution.

12. The question for consideration would be, whether learned trial

Court is justified in convicting the appellant only on the basis of theory

of 'last seen together' finding it to be duly established ?

13. The Supreme Court, in the matter of Sharad Birdhichand

Sarda v. State of Maharashtra 1, has clearly laid down the factors to

be taken into account in adjudication of cases of circumstantial

evidence, which states as under :-

"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

14. In the matter of Arjun Marik v. State of Bihar 2, it has been held

by their Lordships of the Supreme Court have held that conviction

cannot be made solely on the basis of theory of 'last seen together'

and observed in paragraph 31 as under :-

"31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount tothough a number of witnesses have been examined be the evidence of the appellants having been seen last together with the deceased. But it is 1 (1984) 4 SCC 116 2 1994 Supp (2) SCC 372

settled law that the only circumstance of last seen will not complete the chain of circumstances to record the 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."

15. Likewise in the matter of State of Goa v. Sanjay Thakran 3 the

Supreme Court has held that the circumstance of last seen together

would be a relevant circumstance in a case where there was no

possibility of any other persons meeting or approaching the deceased

at the place of incident or before the commission of crime in the

intervening period. It was observed in paragraph 34 as under :-

"34. 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 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

3 (2007) 3 SCC 755

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. "

16. Similarly in the matter of Kanhaiya Lal v. State of Rajasthan 4,

their Lordships of the Supreme Court have clearly held that the

circumstance of last seen together does not by itself and necessarily

lead to the inference that it was the accused who committed the crime

and there must be something more establishing connectivity between

the accused and the crime. Mere non-explanation on the part of the

appellant in our considered opinion, by itself cannot lead to proof of

guilt against the appellant. It has been held in paragraphs 15 and 16

as under :-

"15. The theory of last seen - the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the 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 the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan5.

16. In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment and sentence.

This appeal is allowed and the conviction and sentence imposed on the appellant-accused Kanhaiya Lal are set aside and he is acquitted of the charge by giving benefit of

4 (2014) 4 SCC 715 5 (2010) 15 SCC 588

doubt. He is directed to be released from the custody forthwith unless required otherwise."

17. Finally, in the matter of Anjan Kumar Sarma v. State of

Assam 6 their Lordships of the Supreme Court have clearly held that in

a case where other links have been satisfactorily made out and

circumstances point to guilt of accused, circumstance of last seen

together and absence of explanation would provide an additional link

which completes the chain. In absence of proof of other circumstances

the only circumstance of last seen together and absence of

satisfactory explanation, cannot be made basis of conviction.

18. Reverting to the facts of the present case in light of the aforesaid

judgments rendered by the Supreme Court particularly in the matter of

Anjan Kumar Sarma (supra), it is quite vivid that the prosecution has

only proved that the death of deceased Gujratia Bai was homicidal in

nature and that the appellant was last seen with the deceased and no

other connecting links have been satisfactorily made out and no other

incriminating circumstance which leads to the hypothesis of guilt

against the appellant-accused has been proved. As such, in absence

of proof of other circumstances, only the theory of 'last seen together'

cannot be made the sole basis for conviction of the appellant herein as

it would be unsafe to rest conviction only on the theory of 'last seen

together'.

19. We are of the considered opinion that learned trial Court is

absolutely unjustified in convicting the appellant herein for offence

under Section 302 of the IPC only on the basis of theory of 'last seen 6 (2017) 14 SCC 359

together' finding it fully established in absence of motive for offence on

the part of the appellant and in absence of other incriminating material

against the appellant in light of the principles of law laid down by their

Lordships of the Supreme Court in the matters of Arjun Marik, Sanjay

Thakran and Kanhaiya lal (supra). We hereby set aside the

conviction so recorded and the sentence so awarded by the trial Court

vide impugned judgment dated 5.8.2015. The appellant herein is

acquitted of the charge under Section 302 of the IPC. It is stated at the

Bar that the appellant is in jail, he be released forthwith, if not required

in any other case.

20. The criminal appeal is allowed to the extent indicated herein-

above.

                   Sd/-                                       Sd/-

            (Sanjay K. Agrawal)                      (Sachin Singh Rajput)
                Judge                                       Judge
B/-