Chattisgarh High Court
Santosh Prasad Yadav vs State Of Chhattisgarh on 6 May, 2022
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 1118 of 2014
Ram Prasad Yadav S/o Nanduram Yadav, Aged about 24
years, R/o village Gangapur, P.S. Katghora (Civil
and Revenue) District Korba, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through P.S. Katghora, (Civil
and Revenue) Distt. Korba, Chhattisgarh.
Respondent
For Appellant : Mr. Rajesh Jain, Advocate
For State : Mr. Sudeep Verma, Dy. G.A.
Criminal Appeal No. 283 of 2015
Santosh Prasad Yadav S/o Shri Vishal Ram Yadav,
Aged about 21 years, R/o Village Gangpur, Police
Station Katghora, Distt. Korba, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through P.S. Katghora,
Distt. Korba, Chhattisgarh.
Respondent
For Appellant : Mr. Rishi Rahul Soni, Advocate
For State : Mr. Himanshu Kumar Sharma, P.L.
2
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Smt. Justice Rajani Dubey
Judgment on Board
06/05/2022
Sanjay K. Agrawal, J.
1. Since both of these criminal appeals have arisen
out of common impugned judgment dated 17/10/2014,
therefore, they have been heard together and are
being decided by this common judgment.
2. The two appellants namely Ram Prasad Yadav and
Santosh Yadav have preferred these two criminal
appeals under Section 374(2) of CrPC questioning
the impugned judgment dated 17/10/2014 passed by
learned Additional Session Judge, Katghora in
Sessions Trial No 21/2014 by which they have been
convicted for offence punishable under Section 302
read with Section 34 of IPC as well as Section 201
read with Section 34 of IPC and sentenced to life
imprisonment along with a fine of Rs. 1,000/ in
default of payment of fine, further R.I. for six
months and imprisonment for three years and fine of
Rs. 500/ in default of payment of fine, further
R.I. for three months, respectively.
3. The case of the prosecution, in brief, is that on
the intervening night of 12/11/2013 and 13/11/2013
(in between 10 PM to 7 AM) at village Gangapur, the
two appellants herein namely Ram Prasad Yadav and
Santosh Yadav, in furtherance of their common
intention, assaulted one Mohpal Yadav (hereinafter
called the deceased) and caused his death and
thereafter, hung his dead body on a Char tree near
Vijay Ghati Jhora and further caused disappearance
of the evidence of crime and they thereby committed
the offences punishable under Sections 302 read
with Section 34 of IPC and Section 201 read with
Section 34 of IPC.
4. It is admitted position on record that both the
appellants herein as well as deceased Mohpal Yadav
were residents of Village Gangapur, Police Station
Katghora and Jivanpal Yadav (P.W.2), Bhuvanpal
Yadav (P.W.6) and Khilavan Yadav (P.W.8) are
brothers of the deceased and Narayan Yadav (P.W.5)
is father of the deceased.
5. Further case of the prosecution is that on
13/11/2013 at about 09:00 AM, Sahasram Yadav (P.W.
4), while returning back from forest after chopping
wood, noticed the dead body of deceased Mohpal
Yadav hanging from a tree near Vijay Ghati Jhora.
He informed about the same to the Police pursuant
to which merg intimation (Ex. P/3) was registered
and First Information Report bearing Crime No.
301/2013 (Ex. P/4) was lodged and thereafter,
Police took up the matter for investigation. On the
same day i.e. 13/01/2013, Police reached the crime
spot and prepared inquest report (Ex. P/2) and sent
the dead body of the deceased for postmortem which
was conducted by Dr. K.S. Kanwar (P.W.12) and the
postmortem report has been filed as Ex. P/22
wherein the cause of death is shown to be Asphyxia
due to smothering. Thereafter, certain articles
including plain soil as well as blood stained soil,
tshirt and slippers, deceased's underwear were
seized by the Police from the spot vide Ex. P/5.
Pursuant to the memorandum statement of
appellant/accused Ram Prasad Yadav vide Ex. P/8,
one suzuki motocycle bearing registration No. CG 13
G 5895 as well as one mobile phone of Celkone
company containing one sim of airtel with No.
9585964946 and another sim of reliance with No.
8103524229 were seized and pursuant to the
memorandum statement of appellant/accused Santosh
Yadav vide Ex. P/9, lower of the deceased as well
as mobile phone of the deceased were seized along
with his own mobile phone of Micromax company
containing one sim of airtel with No. 8085471835
was seized and thereafter, the two appellants
herein were arrested vide Ex. P/16 and P/17.
Pursuant thereof, telephone details were gathered
from the Cyber Cell of the Police which are filed
as Ex. P/28 and P/29. After completing the due
investigation and after collecting incriminating
material against the appellants herein, the Police
proceeded to submit the chargesheet before the
Criminal Court which was committed before the Court
of Session for hearing and disposal in accordance
with law. The appellants abjured their guilt and
entered into defence.
6. In order to bring home the offence, prosecution
examined as many as 15 witnesses and brought on
record 29 documents whereas the appellants/accused
persons, though examined none, but brought on
record 4 documents in their defence.
7. Learned trial Court, after appreciating the oral
and documentary evidence on record, proceeded to
convict the appellants herein for offences
punishable under Sections 302 read with Section 34
of IPC and Section 201 read with Section 34 of IPC
and also awarded the sentence as aforesaid finding
the following incriminating circumstances against
the appellants herein :
i) that, the death of deceased Mohpal Yadav was
homicidal in nature.
ii) that, the theory of 'last seen together' of the
appellants with the deceased is clearly established
on the basis of the testimony of Jivanpal Yadav
(P.W.2) and Khilawan Yadav (P.W.8) [brothers of
the deceased].
iii) that, the motive of the offence is also
established as deceased Mohpal Yadav was in a love
affair with one Sunita Yadav, sister of appellant
Ram Prasad Yadav.
However, the following facts were not found proved
by the trial Court :
i) that, the FSL report has not been brought on
record and the memorandum and seizure has not been
duly proved by the prosecution (see: paragraph 20
of the impugned judgment).
ii) that, the prosecution has failed to prove that
deceased Mohpal Yadav was called by appellant
Santosh Yadav by the call details extracted by the
Cyber Cell vide Ex. P/28 and P/29 (see: paragraph
22 of the impugned judgment).
8. Mr. Rajesh Jain, learned counsel appearing for the
appellant Santosh Prasad Yadav in CRA/1118/2014,
would submit that the appellants have only been
convicted by the trial Court on the basis of the
theory of 'last seen together' finding it to be
proved by the prosecution, which in fact has not
been established which is apparent from the
statements of Jivanpal Yadav (P.W.2) and Khilavan
Yadav (P.W.8). He would further submit that even
if the theory of 'last seen together' is found
established by this Court, the conviction of the
appellants cannot rest merely on that in view of
the decision rendered by the Supreme Court in the
matter of Kanhaiya Lal v. State of Rajasthan1. He
would also submit that the motive of the offence
has also not been established though Sunita Yadav
is the sister of appellant Ram Prasad Yadav, but
there is no evidence on record to hold that there
was bitterness between the appellant and the
deceased on account of the alleged love affair
existing between Sunita Yadav and the deceased, as
such, the conviction of the appellant is liable to
be set aside.
9. Mr. Rishi Rahul Soni, learned counsel for the
appellant Santosh Yadav in CRA/283/2015, would
submit that merely on the basis of the theory of
'last seen together', conviction of the appellants
under Section 302 of IPC cannot be maintained as
the seizure and memorandum have not been proved and
no other incriminating circumstances have been
found to be established by the prosecution against
the appellants herein. As such, his conviction is
1 (2014) 4 SCC 715
liable to be set aside. He would further submit
that though the motive of the offence has been
alleged to be the dispute that arose between the
appellant Santosh Yadav and deceased on account of
money owed by Santosh Yadav in lieu of 50 litres
diesel that he had given to the appellant, but
there is no such evidence on record except some
statement in the memorandum statement of appellant
Santosh Yadav (Ex. P/9) to connect the appellants
with the offence punishable under Section 302 of
IPC. As such, the impugned judgment of conviction
resting only on the theory of 'last seen together'
is liable to be set aside.
10. Per Contra, Mr. Sudeep Verma and Mr. Himanshu Kumar
Sharma, learned counsel for the respondent/State,
would support the impugned judgment of conviction
recorded and sentence awarded by the trial Court
and submit that prosecution has brought ample
evidence on record to hold the appellants guilty
for offences punishable under Section 302 read with
Section 34 and Section 201 read with Section 34 of
IPC and they have rightly been convicted relying
upon the death of deceased Mohpal Yadav being
homicidal in nature and on the basis of the theory
of 'last seen together' which has fully been
established it cannot be held that on the basis of
'last seen together' theory only, conviction cannot
rest, as such, the conviction of the appellants
recorded and sentence awarded is strictly in
accordance with law and the instant appeals deserve
to be dismissed.
11. We have heard learned counsel for the parties,
considered their rival submissions made herein
above, and went through the records with utmost
circumspection.
12. The first question for consideration is whether the
death of deceased Mohpal Yadav was homicidal in
nature ?
13. Learned trial Court has recorded an affirmative
finding with regard to the aforesaid question
holding that the death of deceased Mohpal Yadav was
indeed homicidal in nature relying upon the medical
evidence of postmortem report (Ex. P/22) which has
been proved by Dr. K.S. Kanwar (P.W.12) stating
that deceased died due to asphyxia by smothering. A
careful perusal of the statement of Dr. K.S. Kanwar
(P.W.12) would show that he has clearly stated
that the deceased Mohpal Yadav died on account of
asphyxia due to smothering (see: paragraph 5). As
such, after hearing learned counsel for the parties
and after going through the record particularly the
statement of medical witness Dr. K.S. Kanwar (P.W.
12) and postmortem report (Ex. P/22), we are of the
considered opinion that learned trial Court is
absolutely justified in holding that the death of
deceased Mohpal Yadav was homicidal in nature. We
hereby affirm the said finding recorded by the
trial Court.
14. The aforesaid finding would bring us to the next
question which is, whether the death of deceased
Mohpal Yadav was caused by the appellants herein ?
15. As noticed above, learned trial Court has clearly
recorded the finding that death of deceased was
homicidal in nature and on the basis of the theory
of 'last seen together' the appellants have been
convicted for offence punishable under Section 302
read with Section 34 of IPC and for causing
disappearance of evidence of crime offence
punishable under Section 201 read with Section 34
of IPC.
16. It has firstly been contended by learned counsel
for the appellants that the theory of 'last seen
together' has not been established. Jivanpal Yadav
(P.W.2) and Khilavan Yadav (P.W.8), who are the
brothers of deceased Mohpal Yadav, are the
witnesses who have proved the theory of 'last seen
together'. Jivanpal Yadav (P.W.2) has clearly
stated in paragraph 2 of his statement before the
Court that on the night of the incident, Mohpal
Yadav ate his meal with his father Narayan Yadav
(P.W.5) and his brothers Bhuvanpal Yadav (P.W.6)
and Khilavan Yadav (P.W.8) and after receiving a
phone call, he went out of the house wearing a T
shrit and Lower and the deceased along with the two
appellants were sitting around a bonfire warming
their hands nearby their house as it was a cold
night. A similar statement has been made by
Khilavan Yadav (P.W.8). He has further added that
his friends Bajrang and Komal were also present but
thereafter the three of them left leaving behind
the deceased and the two appellants sitting around
the bonfire. On the next morning, the people
returning from Village Jhora informed that there is
someone's dead body hanging from a tree and when
their father Narayan Yadav (P.W.5) went to the
spot, he came back and informed them that the dead
body hanging from the tree is of deceased Mohpal
Yadav. Though both the witnesses have been
subjected to crossexamination but nothing has come
on record to disbelieve their testimony before the
Court or to say that they have not seen the
deceased and the appellants sitting together before
the incident had taken place. As such, it cannot be
held that the theory of 'last seen together' is not
established. In the considered opinion of this
Court, learned trial Court has rightly held that
the theory of 'last seen together' has fully been
established.
17. Now, before considering the question as to whether
the conviction of the appellants under Section 302
of IPC can rest solely on the theory of 'last seen
together', it would be appropriate to consider the
finding recorded by the trial Court that there was
motive of the offence which has duly been
established by the prosecution.
18. Admittedly, Sunita Yadav is the sister of appellant
Ram Prasad Yadav and as per the statement of
Jivanpal Yadav (P.W.2), deceased Mohpal Yadav was
having a love affair with Sunita Yadav, which is
said to be the motive of appellant Ram Prasad Yadav
for causing death of Mohpal Yadav. Similarly,
brother of deceased Bhuvanpal Yadav (P.W.6) has
also stated that after the death of Mohpal Yadav,
he got to know that Sunita Yadav, sister of
appellant Ram Prasad Yadav, had a love affair with
the deceased. Navmichand (P.W.7), with whom
deceased Mohpal Yadav had worked, has also stated
before the Court that the deceased had informed him
that he was having a love affair with Sunita Yadav,
sister of Ram Prasad Yadav, and on account of some
dispute that took place between appellant Ram
Prasad Yadav and deceased Mohpal Yadav, the
appellant Ram Prasad Yadav was arrested by the
Police. Likewise, Khilavan Yadav (P.W.8) has also
stated in paragraph 9 of his statement that he
suspects that a love affair existed between his
brother Mohpal Yadav and Sunita Yadav, sister of
Ram Prasad Yadav and that is why the appellants
caused the death of deceased and hung his dead body
on the tree.
19. A careful perusal of the aforesaid statements of
prosecution witnesses would show that only fact
that deceased Mohpal Yadav was in a love affair
with Sunita Yadav, sister of Ram Prasad Yadav has
been established, but there is no such evidence on
record to establish that on account of said love
affair, there was bitterness between appellant Ram
prasad Yadav and deceased Mohpal Yadav and it is
the cause of death. Prosecution was obliged to
bring clear cut evidence on record that due to
their love affair existing between deceased Mohpal
Yadav and Sunita Yadav, there was some dispute
between the two families and they warned the two
not to continue their relationship or that since
they were in an illicit relationship which was
objected by Ram Prasad Yadav and his family. Except
for the evidence of relationship between deceased
Mohpal Yadav and Sunita Yadav, no further evidence
has been brought on record qua bitterness between
appellant Ram Prasad Yadav and deceased Mohpal
Yadav on account of the relationship between Mohpal
Yadav and Sunita Yadav. Though Narayan Yadav (P.W.
5) father of deceased as well as three brothers of
the deceased namely Jivanpal Yadav (P.W.2),
Bhuvanpal Yadav (P.W.6) and Khilavan Yadav (P.W.
8) have stated in their testimony about the
relationship between deceased Mohpal Yadav and
Sunita Yadav, but they have nowhere stated that on
account of their relationship, there was bitterness
between their family and the family of appellant
Ram Prasad Yadav. As such, we are of the considered
opinion that the motive of offence on the part of
appellant Ram Prasad Yadav has not been established
by the prosecution.
20. Likewise, it has been faintly argued by learned
counsel for the respondent/State that appellant
Santosh Yadav has stated in his memorandum
statement (P.W.9) that deceased Mohpal Yadav owed
him the money for 50 litres of diesel which he had
given to Mohpal Yadav, as such, there is motive for
offence on the part of appellant Santosh Yadav.
This submission made by learned counsel for the
respondent is not acceptable as it is settled legal
position that Section 27 of the Evidenct Act, 1872
is applicable only if confessional statement leads
to discovery of some new fact. The relevance is
limited as relates distinctly to fact thereby
discovered in relation to the crime (see :
Navneethakrishnan v. STATE by Inspector of
Police2). Furthermore, though as many as 15
witnesses have been examined by the prosecution but
no such evidence has been brought on record to
demonstrate that deceased Mohpal Yadav had taken
any diesel from the appellant Santosh Yadav and he
has not paid money to the appellant for the same.
As such, the motive of offence on the part of
appellant Santosh Yadav has also not been
established and the submission made by learned
counsel for the respondent/State in this regard is
hereby rejected.
21. The last question for consideration would be
whether learned trial Court is justified in
convicting the appellants only on the basis of the
theory of 'last seen together' finding it to be
duly established ?
2 (2018) 16 SCC 161
22. The Supreme Court, in the matter of Sharad
Birdhichand Sarda v. State of Maharashtra3, 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."
23. In the matter of Arjun Marik v. State of Bihar4, 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 1971985
and had stayed in the night at the house of
deceased Sitaram is very shaky and
3 (1984) 4 SCC 116
4 1994 Supp (2) SCC 372
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 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."
24. Likewise in the matter of State of Goa v. Sanjay
Thakran5 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 lastseen 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
5 (2007) 3 SCC 755
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
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. "
25. Similarly in the matter of Kanhaiya lal (supra),
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 nonexplanation 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 Rajasthan6.
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 appellantaccused 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."
26. Finally in the matter of Anjan Kumar Sarma v. State
of Assam7 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
6 (2010) 15 SCC 588
7 (2017) 14 SCC 359
absence of satisfactory explanation, cannot be made
basis of conviction.
27. Reverting to the facts of the present case in light
of the aforesaid decisions rendered by the Supreme
Court particularly in the matter of Anjan Kumar
Sarma (supra), it is quite vivid that prosecution
has only proved that the death of deceased Mohpal
Yadav was homicidal in nature and that the
appellants were 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
appellants/accused persons have 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
appellants herein as it would be unsafe to rest
conviction only on the theory of 'last seen
together'. We are of the considered opinion that
learned trial Court is absolutely unjustified in
convicting the appellants herein for offence
punishable under Section 302 read with Section 34
of IPC and Section 201 read with Section 34 of IPC
only on the basis of the theory of 'last seen
together' finding it fully established in absence
of motive for offence on the part of the appellants
and in absence of other incriminating material
against the appellants 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
17/10/2014. The appellants herein are acquitted of
the charges of Sections 302, 201 read with Section
34 of IPC and they be released forthwith, if not
required in any other case.
28. These appeals are allowed to the extent indicated
hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Rajani Dubey)
Judge Judge
Harneet
