Sushil Kumar Cherwa Fand Ors vs State Of Chhattisgarh
2022 Latest Caselaw 7195 Chatt

                                                                            Cr.A.No.987/2013

                                          Page 1 of 17

                                                                                            NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                          Criminal Appeal No.987 of 2013

  {Arising out of judgment dated 5-9-2013 in Special Sessions Trial
 No.11/2012 of the Special Judge under the Scheduled Castes and the
   Scheduled Tribes (Prevention of Atrocities) Act, 1989, Koriya,
                            Baikunthpur}

    1. Sushil Kumar Cherwa, S/o Late Amarsai Cherwa, aged about 20
        years, R/o Village Chhigura, Tahsil and P.S. Sonhat, Civil and
        Revenue District Koria (C.G.)

    2. Rajman Cherwa, S/o Gulab Ram Cherwa, aged about 18 years, R/
        o Village Chhigura, Tahsil and P.S. Sonhat, Civil and Revenue
        District Koria (C.G.)

    3. Kunjlal Cherwa, S/o Late Ramkaran Cherwa, aged about 35 years,
        R/o Village Chhigura, Tahsil and P.S. Sonhat, Civil and Revenue
        District Koria (C.G.)

    4. Laxman Nai, S/o Bandhu Nai, aged about 40 years, R/o Village
        Jogiya, Tahsil and P.S. Sonhat, Civil and Revenue District Koria
        (C.G.)
                                                          ---- Appellants

                                             Versus

        State of C.G., through Police Station Sonhat, District Koria (C.G.)
                                                             ---- Respondent

----------------------------------------------------------------------------------------------------
For Appellants:                 Mr. Syed Majid Ali, Advocate.
For Respondent/State: Mr. Afroz Khan, Panel Lawyer.
----------------------------------------------------------------------------------------------------

                        Hon'ble Shri Sanjay K. Agrawal and
                       Hon'ble Shri Rakesh Mohan Pandey, JJ.

Judgment On Board (01/12/2022)

Sanjay K. Agrawal, J.

Cr.A.No.987/2013

1. Four appellants herein (A-1 to A-4) have preferred this appeal

under Section 374(2) of the CrPC calling in question legality,

validity and correctness of the impugned judgment and order dated

5-9-2013, by which they have been convicted under Sections 302

read with Section 34 & 201 of the IPC and sentenced to undergo

imprisonment for life & pay a fine of ₹ 1,000/- each, in default of

payment of fine to further undergo additional rigorous

imprisonment for six months and rigorous imprisonment for seven

years & pay a fine of ₹ 1,000/- each, in default of payment of fine

to further undergo additional rigorous imprisonment for six

months, respectively, and in addition to that, appellant No.4 -

Laxman Nai has also been convicted under Section 3(2)(v) of the

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (for short, 'the Act of 1989') and

sentenced to undergo imprisonment for life & pay a fine of ₹

1,000/-, in default of payment of fine to further undergo

additional rigorous imprisonment for six months.

2. Case of the prosecution, in brief, is that on 16-10-2011 at about

8.00 p.m. on the bank of Turra river, near Lolki Approach Road,

in furtherance of common intention, the appellants herein had

strangulated deceased Bihari Singh who was a member of Scheduled

Tribe and caused his death and thereby committed the aforesaid

offences. Appellant No.4 not being a member of Scheduled Cr.A.No.987/2013

Caste / Scheduled Tribe committed the offence and therefore he

was also charged of the offence under Section 3(2)(5) of the Act

of 1989. Further case of the prosecution is that on 23-10-2011,

Triveni Singh (PW-2) - son-in-law of deceased Bihari Singh, lodged

missing report vide Ex.P-32 before Police Station Sonhat, Distt.

Koria to the effect that deceased Bihari Singh went missing and

thereafter, on 27-11-2011 Mahesh Singh (PW-15) - Forest

Guard, submitted a written information that during forest visit, he

has seen the dead body of an unknown person in Rajbevra Forest,

Balamghati pursuant to which police party reached there and the

information was found true whereupon un-numbered (dehati)

morgue intimation was registered vide Ex.P-29 and after reaching

to the police station, it was registered as numbered morgue

intimation Ex.P-30 and thereafter, missing person Bihari Singh's

relatives were requisitioned to identify the dead body and

identification proceeding was conducted vide Ex.P-2 in which the

dead body was identified to be of deceased Bihari Singh.

Thereafter, on the recommendation of panchas, dead body was

subjected to postmortem which was conducted by Dr. R.P. Singh

(PW-16) vide his report Ex.P-5 in which cause of death was stated

to be shock (haemorrhage) due to fracture and haemorrhage and

death was homicidal in nature. During enquiry, appellant No.4

being suspect was called for interrogation and during interrogation,

he said that he along with appellants No.1 to 3 have strangulated Cr.A.No.987/2013

the deceased and caused his death pursuant to which first

information report (FIR) was registered for offences punishable

under Sections 302 & 201 read with Section 34 of the IPC vide

Ex.P-35. Pursuant to the memorandum statement of appellant

No.1, jute bag was recovered from him; pursuant to the

memorandum statement of appellant No.2, bamboo stick was

recovered from him; and pursuant to the memorandum statement

of appellant No.4, gamcha & lungi were recovered from him.

Underwear, half T-shirt and half shirt were recovered from the

body of deceased Bihari Singh. Seized articles were sent for

chemical analysis to the Forensic Science Laboratory, Raipur, vide

Ex.P-45 and acknowledgment receipt of the same was also received

from the FSL, Raipur, vide Ex.P-46, but the FSL report was not

brought on record.

3. Statements of the witnesses were recorded under Section 161 of

the CrPC.. After completion of investigation, charge-sheet was

filed against the appellants before the jurisdictional criminal court

and the case was committed to the Court of Sessions for trial from

where the learned Special Judge under the Act of 1989, Koriya

(Baikunthpur) received the case on transfer for trial and for hearing

and disposal in accordance with law.

4. The trial Court has framed charges against the appellants for

offences punishable under Sections 302 & 201 read with Section Cr.A.No.987/2013

34 of the IPC and also against appellant No.4 under Section 3(2)

(5) of the Act of 1989 and proceeded on trial. The appellants

abjured guilt and entered into defence stating that they have not

committed the offence and they have been falsely implicated.

5. The prosecution in order to bring home the offence examined as

many as 23 witnesses and exhibited 46 documents Exhibits P-1 to

P-46 and also Articles A1, A2 and B1 to B9. No witness has been

examined on behalf of the defence and no document has been

exhibited. Statements of the appellants were recorded under

Section 313 of the CrPC in which they abjured the guilt and

pleaded innocence.

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

and documentary evidence available on record, convicted and

sentenced the appellants in the manner mentioned in the opening

paragraph of this judgment against which this appeal under Section

374(2) of the CrPC has been preferred by them calling in question

the impugned judgment.

7. Mr. Syed Majid Ali, learned counsel appearing for the appellants,

would submit that this is a case of no evidence. Initially the case is

based on circumstantial evidence i.e. last seen theory, extra-judicial

confession and recovery of unidentified articles on the basis of

disclosure statements of the appellants. He would further submit

that the prosecution has not recorded any disclosure statement of Cr.A.No.987/2013

appellant No.3 Kunjlal. Virtually, articles seized from Kunjlal and

other articles seized at the instance of other appellants are not of

any use in the present case because, the prosecution has failed to

connect the aforesaid articles with commission of murder or with

the appellants or with the deceased. He would also submit that the

prosecution has examined Triveni Singh (PW-2), who is son-in-law

of the deceased, as witness of last seen theory, but as per his

evidence and rojnamcha-sanha written at his instance as Ex.P-32,

his father Lalman Singh was the witness of last seen theory whom

the prosecution has not examined. The prosecution has examined

other witnesses - Chandrabhan (PW-7) & Devi Singh (PW-10) to

prove the last seen theory and extra-judicial confession, but they

have not stated anything in support of the aforesaid circumstances.

Their statements are not well founded and even except Laxman Nai

- appellant No.4, other appellants were on bail during trial. As

such, the impugned judgment deserves to be set aside and the

appeal deserves to be allowed by acquitting the appellants of the

charges levelled against them.

8. Mr. Afroz Khan, learned State counsel, would support the

impugned judgment and would submit that conviction of the

appellants is well founded and well supported by the circumstantial

evidence leading to inference that the appellants have committed

the aforesaid offence, as such, the trial Court has rightly convicted Cr.A.No.987/2013

the appellants and therefore conviction cannot be competently

questioned by the appellants herein and the appeal deserves to be

dismissed.

9. 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.

10. The first question is, whether the death of the deceased was

homicidal in nature, which the trial Court has recorded in

affirmative relying upon the statement of Dr. R.P. Singh (PW-16)

proved by his postmortem report Ex.P-5 holding the death of the

deceased to be homicidal in nature, which is a finding of fact based

on the evidence available on record, it is neither perverse nor

contrary to the record and we hereby affirm the said finding.

11. Now, the question is, whether the trial Court is justified in holding

that the appellants are perpetrators of the crime?

12. The trial Court has relied upon two sets of evidence, one is based

on last seen theory i.e. the statement of Triveni Singh (PW-2) that

accused / appellant No.4 Laxman Nai was last seen with the

deceased and second is extra-judicial confession allegedly made by

accused / appellant No.1 before Devi Singh (PW-10), and also

circumstantial evidence based on recovery of articles from the

possession of appellants No.1, 2 & 4.

13. We will discuss both sets of evidence one by one.

Cr.A.No.987/2013

14. So far as the extra-judicial confession allegedly made by appellant

No.1 before Devi Singh (PW-10) is concerned, in the statement

before the Court, Devi Singh (PW-10) has retracted from his

statement recorded under Section 161 of the CrPC and has not

supported the case of the prosecution that appellant No.1 had

given any kind of extra-judicial confession to him. The trial Court

has permitted to put leading questions to him, but he has not at all

supported the case of the prosecution stating that appellant No.1

has not given any kind of extra-judicial confession to him.

15. The next piece of evidence that the prosecution has sought to rely

upon is the theory of last seen of the deceased and appellant No.4

for which the prosecution has examined Triveni Singh (PW-2) who

is son-in-law of the deceased and has been examined as witness of

last seen theory. In his statement before the Court, he has stated

that the deceased was his father-in-law and on 14-10-2011, the

deceased has started from Village Tanjra to Lolki where his father-

in-law has some relatives and on 16-10-2011, appellant No.4 and

one Chandrabhan both had taken his father-in-law to Village Jogiya

Rajhai for witchcraft and thereafter, his father-in-law went missing.

However, document Ex.P-32 - copy of rojnamcha-sanha, has been

brought on record which has been proved by Shivendra Rajput

(PW-18) and which has been registered at the instance of Triveni

Singh (PW-2) stating therein that his father Lalman has informed Cr.A.No.987/2013

that appellant No.4 had gone to Village Jogiya with Chandrabhan

Yadav on 21-10-2011. Father of Triveni Singh - Lalman could

be an important witness to prove the said fact, but for the reasons

best known to the prosecution, Lalman has not been examined,

however, even assuming that the deceased was last seen together

with Laxman Nai - accused / appellant No.4, but as per the

evidence of Buddhsen Napit (PW-9), dead body was recovered on

27-11-2011, after one month, whereas they were last seen on 21-

10-2011. As such, there is considerable time gap between last

seen together of appellant No.4 & the deceased and recovery of

the dead body of the deceased. Therefore, it cannot be held that

accused / appellant No.4 is the perpetrator of the crime in view of

the decisions of the Supreme Court which are being noticed herein-

below.

16. In the matter of Arjun Marik v. State of Bihar1, it has been held by

their Lordships of the Supreme Court 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 settled law that the only circumstance 1 1994 Supp (2) SCC 372 Cr.A.No.987/2013

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."

17. Likewise, in the matter of State of Goa v. Sanjay Thakran2, 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 person 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

2 (2007) 3 SCC 755 Cr.A.No.987/2013

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 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. "

18. Similarly, in the matter of Kanhaiya Lal v. State of Rajasthan3, 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

3 (2014) 4 SCC 715 Cr.A.No.987/2013

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 Rajasthan4.

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

19. In the matter of Anjan Kumar Sarma v. State of Assam 5, 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.

20. In the matter of Navaneethakrishnan v. State by Inspector of

Police6, the Supreme Court has held that though the evidence of

last seen together could point to the guilt of the accused, but this

4 (2010) 15 SCC 588 5 (2017) 14 SCC 359 6 (2018) 16 SCC 161 Cr.A.No.987/2013

evidence alone cannot discharge the burden of establishing the guilt

of the accused beyond reasonable doubt and requires

corroboration, and observed in paragraph 22 as under: -

"22. PW 11 was able to identify all the three accused in the court itself by recapitulating his memory as those persons who came at the time when he was washing his car along with John Bosco and further that he had last seen all of them sitting in the Omni van on that day and his testimony to that effect remains intact even during the cross-examination in the light of the fact that the said witness has no enmity whatsoever against the appellants herein and he is an independent witness. Once the testimony of PW 11 is established and inspires full confidence, it is well established that it is the accused who were last seen with the deceased specially in the circumstances when there is nothing on record to show that they parted from the accused and since then no activity of the deceased can be traced and their dead bodies were recovered later on. It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone cannot discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration."

21. In Sanjay Thakran's case (supra), their Lordships of the Supreme

Court found that there was considerable time gap of approximately

8½ hours when the deceased was last seen alive with the accused

persons and their Lordships held that there being a considerable

time gap between the persons seen together and the proximate Cr.A.No.987/2013

time of crime, the circumstance of last seen together, even if

proved, cannot clinchingly fasten the guilt on the accused.

22. The next circumstance that has been pointed out by the

prosecution is the circumstantial evidence.

23. The most celebrated decision in this regard is the judgment of the

Supreme Court in the matter of Sharad Birdhichand Sarda v. State

of Maharashtra7 in which their Lordships have underlined the

conditions which must be fulfilled for convicting an accused on the

basis of circumstantial evidence in paragraph 153 as under: -

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra 8 where the following observations were made:

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that

7 (1984) 4 SCC 116 8 (1973) 2 SCC 793 Cr.A.No.987/2013

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."

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

principles of law, it is quite vivid that in the instant case, pursuant

to the memorandum of the accused / appellants, jute bag was

recovered from appellant No.1, wooden stick was recovered from

appellant No.2 and gamcha & lungi were recovered from appellant

No.4, however, nothing has been recovered from appellant No.3

and all the recovered articles were sent for chemical analysis to the

FSL, Raipur, vide Ex.P-45, but no chemical analysis report has

been brought on record to connect the appellants with the offence

in question.

25. In the matter of Balwan Singh v. State of Chhattisgarh and

another9, it has been held by the Supreme Court 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

9 (2019) 7 SCC 781 Cr.A.No.987/2013

the blood found on the articles is of human origin though, even

though the blood group is not proved because of disintegration of

blood. It was further held that 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. In that

case, their Lordships observed in paragraph 24 as under: -

"24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution."

26. Reverting to the facts of the present case finally, it is quite vivid

that though articles have been seized and sent for chemical analysis

to the FSL, but no FSL report has been brought on record to

connect the appellants with the offence. As such, there is no

corroboration and no FSL report to connect the appellants with the

offence in question and only on the basis of alleged recovery of

some articles, in absence of corroboration and FSL report, it would

be unsafe to convict the appellants for the offences punishable

under Sections 302 read with Section 34 & 201 of the IPC.

Cr.A.No.987/2013

Since the offences under the Indian Penal Code alleged against the

appellants are not proved, it would also be unsafe to convict

appellant No.4 under Section 3(2)(v) of the Act of 1989, as the

penal provisions of the IPC alleged against him have already been

found to be not proved.

27. Accordingly, we set aside the conviction so recorded and the

sentences so awarded by the trial Court to the appellants vide the

impugned judgment dated 5-9-2013. The appellants are acquitted

of the charges under Sections 302 read with Section 34 & 201 of

the IPC, and appellant No.4 is also acquitted of the charge under

Section 3(2)(v) of the Act of 1989. They are on bail. They need

not surrender. However, their bail bonds shall remain in force for

a period of six months in view of the provision contained in Section

437A of the CrPC.

28. The appeal stands allowed.

                 Sd/-                                           Sd/-
          (Sanjay K. Agrawal)                        (Rakesh Mohan Pandey)
                Judge                                          Judge
Soma