Chattisgarh High Court
State Of Chhattisgarh vs Dharampal Singh And Another on 12 May, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Acquittal Appeal No. 306 of 2010
State of Chhattisgarh through District Magistrate
Korea, Distt. Korea, Chhattisgarh.
Appellant
Versus
1. Dharampal Singh, Aged about 24 years, S/o Laxman
Singh Gond, R/o Village Adhinapur, P.S. Khadgawan,
Distt. Korea, Chhattisgarh.
2. Maan Singh, Aged about 20 years, S/o Mangal Singh
Gond, R/o Village Bilaidand (Semar Darro), P.S.
Marwahi, Distt. Bilaspur, Chhattisgarh.
Respondents
For Appellant/State : Mr. Sudeep Verma, Dy. G.A.
For Respondents : None though served
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Smt. Justice Rajani Dubey
Judgment on Board
12/05/2022
Sanjay K. Agrawal, J.
1. This acquittal appeal is directed against the
impugned judgment dated 19/06/2007 by which
respondents/accused persons have been acquitted
from the charges punishable under Section 302 read
with Section 34 of IPC.
2. The case of the prosecution, in brief is that on
15/12/2005 at about 6:30 PM, the
respondents/accused persons with the common
intention of causing death of Ramcharan, assaulted
him due to which he died on 07/01/2006 and they
thereby committed the aforesaid offence punishable
under Section 302 read with Section 34 of IPC.
3. Further case of the prosecution, in brief, is that
on 15/12/2005 at about 6:30 PM, the soninlaws of
Chain Singh namely Dharampal Singh and Maan Singh
i.e. the respondents herein went to the house of
Ramcharan and took him towards Village Amadand. On
16/12/2005 at about 10:00 AM, Bhomsingh Pando
informed the family of Ramcharan that he has seen
Ramcharan lying on the road in Amadand square and
he had suffered injuries in head, ears and near his
eyes. Thereafter, Ramcharan was taken to Khadgawan
Hospital from wherein he was referred to
Baikunthpur Hospital and from there he was then
referred to Ambikapur Hospital. During his
treatment, Ramcharan succumbed to death on
07/01/2006 which was informed by the Doctor to the
Police at Police Station, Ambikapur. Thereafter,
merg intimation (Ex. P/4) was registered and the
wheels of investigation started running. During
investigation, in the presence of witnesses,
Inquest (Ex. P/9) was conducted and the postmortem
of deceased Ramcharan was also conducted wherein
the nature of death is said to be homicidal in
nature vide the postmortem report (Ex. P/6).
Thereafter, FIR (Ex. P/8) was lodged against the
respondents/accused persons at Police Station
Khadgawan. Spot map (Ex. P/1) was prepared and the
statements of witnesses were recorded. After due
investigation, the respondents/accused persons were
chargesheeted for offence punishable under Section
302 read with Section 34 of IPC which was submitted
before the Court of Judicial Magistrate 1st Class,
Manendragarh which was then committed to the Court
of Session, Manendragarh for hearing and disposal
in accordance with law. The respondents/accused
persons abjured their guilt and entered into
defence.
4. In order to bring home the offence, the prosecution
examined as many as 14 witnesses and brought on
record 11 documents. Statements of the accused
persons were recorded under Section 313 of CrPC
wherein they denied guilt and examined one witness
in their defence.
5. Learned trial Court, upon appreciation of oral and
documentary evidence on record, acquitted the
respondents/accused persons from the charges
punishable under Section 302 read with Section 34
of IPC holding that Pyarelal (P.W.3), who is said
to be eyewitness to the incident has turned
hostile and has not supported the case of the
prosecution, as such, there is no direct evidence
available on record and so far as circumstantial
evidence is concerned, only the theory of last seen
together is established on the basis of testimony
of Somaru (P.W.1), Rambai (P.W.2), Ahibaran
(P.W.4), Gangadeen (P.W.5) and Kalawati (P.W.9)
and no other incriminating circumstantial evidence
is available in the shape of memorandum or seizure,
as such, the respondents/accused persons cannot be
convicted only on the basis of theory of last seen
together and proceeded to acquit the
respondents/accused persons from the aforesaid
charges.
6. Mr. Sudeep Verma, learned Deputy Government
Advocate for the appellant/State, would vehemently
submit that the trial Court is absolutely
unjustified in acquitting the respondents/accused
persons from the aforesaid charges by recording a
finding which is perverse and contrary to the
record and by ignoring material evidence
particularly, the theory of last seen together
which has been found established on the basis of
testimony of Somaru (P.W.1), Rambai (P.W.2),
Ahibaran (P.W.4), Gangadeen (P.W.5) and Kalawati
(P.W.9) and it is not the case that conviction of
the respondents/accused persons cannot rest only on
the theory of last seen together having been found
established, as such, the impugned judgment of
acquittal is liable to be set aside.
7. None for the respondents though served.
8. We have heard learned counsel for the
appellant/State and perused the records with utmost
circumspection.
9. Learned trial Court has held that the death of
deceased Ramcharan was homicidal in nature relying
upon the postmortem report (Ex. P/6) and the
medical evidence of Dr. B.P. Chandra (P.W.12). The
death of deceased Ramcharan was homicidal in nature
is not in dispute and it has not even been
challenged.
10. The question for consideration is whether the death
of deceased Ramcharan was caused by the respondents
herein ?
11. From a careful perusal of the record, it is evident
that there is no evidence let in by the prosecution
to establish that the death of deceased Ramcharan
was caused by the respondents herein and only the
theory of last seen together has been found
established on the basis of the testimony of Somaru
(P.W.1), Rambai (P.W.2), Ahibaran (P.W. 4),
Gangadeen (P.W.5) and Kalawati (P.W.9). Moreover,
Pyarelal (P.W.3), who is said to be the eye
witness, has turned hostile and has not supported
the case of the prosecution. No other material
evidence has been brought on record either in the
shape of disclosure statement or seizure of weapon
used in the offence. As such, from a careful
perusal of the record, it is quite vivid that
prosecution has failed miserably to establish that
the death of deceased Ramcharan was indeed caused
by the respondents herein.
12. Now, the question is whether the trial Court is
justified in acquitting the respondents from the
aforesaid charges even though the theory of last
seen together has been found to be established ?
13. The Supreme Court, in the matter of Sharad
Birdhichand Sarda v. State of Maharashtra1, has
clearly laid down the factors to be taken into
account in adjudication of cases of circumstantial
evidence, which states as under :
1 (1984) 4 SCC 116
"(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 Bihar2, 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 1971985
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 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,
2 1994 Supp (2) SCC 372
therefore, no conviction on that basis alone
can be founded."
15.Likewise, in the matter of State of Goa v. Sanjay
Thakran3 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 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
3 (2007) 3 SCC 755
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. "
16. 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 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 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."
17. Finally in the matter of Anjan Kumar Sarma v. State
of Assam5 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 decisions rendered by the Supreme
Court particularly in the matter of Anjan Kumar
Sarma (supra), it is quite vivid that prosecution
4 (2010) 15 SCC 588
5 (2017) 14 SCC 359
has only proved that the death of deceased
Ramcharan was homicidal in nature and that the
deceased was last seen with the
respopndents/accused persons and no other
connecting links have been satisfactorily made out
and no other incriminating circumstance which leads
to the hypothesis of guilt against the
respondents/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
respondents 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 justified in
acquitting the respondents herein from the charges
punishable under Section 302 read with Section 34
of IPC despite finding the theory of last seen
together fully established as in absence of motive
for offence on the part of the respondents and in
absence of other incriminating material against the
respondents, their conviction cannot rest solely on
the theory of last seen together 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).
19. Accordingly, the instant acquittal appeal, being
devoid of merits, stands dismissed.
Sd/ Sd/
(Sanjay K. Agrawal) (Rajani Dubey)
Judge Judge
Harneet
