Akbar Kachlaam @ Raju Kashlaam And ... vs State Of Chhattisgarh
2022 Latest Caselaw 3576 Chatt

                                       1

                                                                         AFR
         HIGH COURT OF CHHATTISGARH, BILASPUR
                          CRA No. 1252 of 2014

     1. Akbar Kachlaam @ Raju Kachlaam, aged about 26 years, S/o
        Gautam     Kachlaam,    Bhursapara,   Kacche,    Thana
        Bhanupratappur.
     2. Keshavram Kachlaam, aged about 40 years, S/o Gautam
        kachlaam,   R/o    village   Bhursepara, kacche Thana
        Bhanupratappur, District Kanker (C.G.)
                                                               ---- Appellants
                                 Versus
        State  of   Chhattisgarh     Through            :    Police    Station
         Bhanupratappur, District Kanker (C.G.)
                                                             ---- Respondent

For Appellants : Mr. R.K. Jain and Ms. Kiran Jain, Advocates For Respondent : Mr. Himanshu Sharma, P.L.

DB : Hon'ble Shri Sanjay K. Agrawal & Hon'ble Smt Justice Rajani Dubey

Judgment on Board (13.05.2022)

Sanjay K. Agrawal, J

1. This criminal appeal preferred by the Appellant under

Section 374 (2) of Cr.P.C. is directed against the impugned

judgment of conviction and order of sentence dated

25.11.2014 passed by the Additional Sessions Judge, North

Bastar Kanker (C.G.), in S.T. No.81/2014 by which the

Appellants herein have been convicted for the offence

punishable under Sections 364, 302, 201 of the Indian Penal

Code and sentenced them to undergo R.I. for ten years with

fine of Rs.2,000/-, imprisonment for life with fine of Rs.2,000/-

& R.I. for five years with fine of Rs.2,000/- each respectively,

with default stipulation.

2. It is the case of the prosecution that on 26.06.2013, in

furtherance of common intention of the accused/appellants

herein, abducted one Ramcharan (deceased) from village

Kacche Chowki, Police Station Bhanupratappur, and thereafter

committed his murder, and further in order to destroy the

evidence of crime, dead body of deceased was buried near

Chilam Ghati, village Jhurhatola Rajolidih road, and thereby

committed the offence punishable under Sections 364, 302

and 201 of IPC. Further case of the prosecution is that

Ramchandra (PW/4), elder brother of deceased, informed the

Police Choki Kacche that his younger brother Ramcharan is

missing from 26.06.2013, upon which missing person report

No.12/13 was lodged. Thereafter, he received an information

that one person is suspected to be buried near Chilam Ghati

(at village Jhurhatola) and he apprehends that it might be of

his brother Ramcharan, informed the police station and taking

the cognizance of that report, on 28.06.2013, dehati merg

No.0/2013 (Ex.P/29) was registered. An application (Ex.P/30)

was filed before the Sub Divisional Officer, Dondilohara,

District Balod, for exhumation of body, who permitted

Rupendra Singh Verma (PW/7), Nayab Tahsildar, Doundi, and

authorized for that purpose and, accordingly, the dead body

was exhumed, which was sent to the Community Health

Center, Doundi, for medical examination and on 29.06.2013,

zero FIR (Ex.P/32) and merg intimation No.51/2013 (Ex.P/18)

was registered. Thereafter, on same day numbered FIR

(Ex.P/17) was registered at Police Station Bhanupratappur,

District Kanker, and the dead body was identified by

Ramchandra (PW/4) to be of his younger brother Ramcharan

vide identification panchanama (Ex.P/7). On 01.07.2013,

memorandum statement (Ex.P/10 & P/11) of Akbar Kachlaam

@ Raju (A-1) and Keshavram (A-2) respectively, was taken but

no recovery was made from them pursuant to that, however,

on 01.07.2013, at the instance of Ramchandra (PW/4),

motorcycle of deceased was seized vide Ex.P/6. An

identification panchanama (Ex.P/18) of motorcycle was

prepared and the motorcycle of the deceased was duly

identified by Akbar Kachlaam (A-1). Seizure memo of spade

and crowbar was obtained from Akbar (A-1) and Keshavram

(A-2) but the same was recovered from the house of Chetan

(PW/2) and nothing has been found on that & the

accused/appellants were arrested on 01.07.2013. Inquest on

the body of deceased was prepared vide Ex.P/8 and dead

body was sent for postmortem examination to C.H.C., Doundi,

which was conducted by Dr. Abhishek Ramteke (PW/14) who

gave his report Ex.P/24, according to which, the mode of

death of deceased was asphyxia due to strangulation and it

was homicidal in nature.

3. After completion of usual investigation, charge sheet

under Sections 302, 201, 364, 120(B), 34 of IPC was filed

before the Court of Judicial Magistrate First Class,

Bhanupratappur, who in turn, committed the case to the Court

of Sessions for hearing and disposal in accordance with law.

After filing of the charge sheet, the trial Judge has framed the

charge against the accused/appellants under Sections 364,

302, 201, 120(B) read with section 34 of the IPC.

4. In order to prove the guilt of the accused/appellants, the

prosecution examined as many as 16 witnesses and exhibited

32 documents from Exs.P/1 to P/32. Statements of the

accused/appellants were also recorded under Section 313 of

Cr.P.C. in which they abjured their guilt, pleaded innocence

and false implication & entered into defence.

5. The trial Court, after hearing counsel for the respective

parties and appreciating oral and documentary evidence on

record, found the death of deceased to be homicidal in nature

and further held that since the theory of last seen together

has been established and the motorcycle of the deceased was

seized in the house of the deceased and accused/appellants

have not given any plausible explanation about that,

proceeded to convict the accused/appellants for the offence

punishable under Sections 364, 302, 201, 120(B) read with

section 34 of the IPC. and sentenced them as mentioned in

para 1 of the judgment against which the instant appeal has

been preferred.

6. Mr. R.K. Jain, learned counsel for the appellants would

submit that the prosecution has failed to bring home the

offence beyond reasonable doubt. He further submits that

even the theory of last seen has been established but merely

on the basis of last seen together, appellants could not have

been convicted. Learned counsel would rely upon the

decisions of Supreme Court in the matter of Kanhailal Vs.

State of Rajasthan1 and Tipparam Prabhakar V. The

State of Andhra Pradesh2, as such, the criminal appeal

deserves to be allowed.

7. On the other hand, learned State counsel supporting the

impugned judgment of conviction and order of sentence

submits that the prosecution has proved the offence beyond

reasonable doubt and even Santoshi (PW/9), wife of the

deceased, has clearly proved the theory of last seen together

and merely because of other circumstances have not found

proved, on the basis of last seen together, conviction has

been made, as such, the instant appeal deserves to be

dismissed.

8. We have heard learned counsel for the parties,

considered the rival submission made herein above and went

through the record with utmost circumspection.

9. The first question for consideration is whether the death

1 2014 (4) SCC 715 2 (2009) 13 SCC 534

of the deceased was rightly held by the trial Court to be

homicidal in nature ?

10. The learned trial Court, in order to hold the death of the

deceased to be homicidal in nature, has relied upon the

postmortem report (Ex.P/24), in which upon internal

examination, he found fracture below thyroid cartilage and

fracture was also distorted, as such, the mode of death of the

deceased was asphyxia that was caused due to strangulation.

The autopsy surgeon (PW/14) has refuted the suggestion

made on behalf of the defence that it was on account of

accident falling down from the motorcycle and the fracture

can occur. As such, it has duly been established that the

death of the deceased was homicidal in nature, We hereby

affirm the finding recorded by the learned trial Court holding

that the death of the deceased was homicidal in nature.

11. Now the question is whether the learned trial Court has

rightly held that the appellants have abducted the deceased

in order to murder and, accordingly, murdered & caused

disappearance of evidence of murder, thereby rightly

convicted the appellants for the offence punishable under

Sectinos 364, 302, 201, 120(B) read with section 34 of the

IPC ?

12. In order to bring home the offence, the prosecution has

examined his star witness Santoshi (PW/9), wife of the

deceased. In her statement before the Court, she has clearly

proved that on 28.06.2013, Akbar (A-1) had come personally

in absence of her husband inquiring whereabouts of her

husband and when she informed that her husband has not

come from duty, then accused Akbar demanded food, which

she served him. In the meanwhile, Keshav (A-2) also came

there and after having food, they were waiting for the

deceased to come and thereafter when the deceased came,

they asked her (this witness) husband to leave them to bus

stand to which her husband readily agreed and left the house

along with two accused persons to bus stand. She has further

stated that on very day at about 8.00 pm, Akbar (A-1) came

back to her house to return the motorcycle of the deceased

and on being inquired by her about her husband, the accused

Akbar (A-1) informed that her husband is with Keshav (A-2)

and left the motorcycle in her house. Thereafter, when her

husband did not come to house till 10.00 pm, she informed

her relative Pournima and searching her husband went to the

house of Keshav (A-2) who informed her that her husband had

gone with Akbar (A-1) leaving Keshav (A-2) on the way. This

witness has been cross-examined to some extent but she has

remained firm and maintained that her husband had gone

along with the accused persons and thereafter did not return.

As such, the theory of last seen together has rightly been held

to be established by the learned trial Court, which we do not

find any illegality or perversity in that finding recorded by the

learned trial Court.

13. Now, the question is whether merely on the basis of

theory of last seen together, the conviction for the offence

under Section 302 of IPC can rest ?

14. It is apparent on the face of the record that the learned

trial Court did not find prove seizure of crowbar and spade

made under Ex.P/3, which has been used for digging soil and

that has not been proved by the prosecution. Similarly,

though pursuant to the memorandum statement (Ex.P/10 &

P/11), nothing has been recovered but it has also not been

found proved. As such, no other incriminating circumstances

has been found proved but the learned trial Court, in para 17

of its judgment, recorded the finding that it was for the

accused to explain under what circumstances the deceased

died and the incident occurred and in absence of that the

offence under Section 302 of the IPC is established.

15. The 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 ?

16. The Supreme Court, in the matter of Sharad

Birdhichand Sarda v. State of Maharashtra 3, 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

3 (1984) 4 SCC 116

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."

17. 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 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 to though 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."

18. Likewise in the matter of State of Goa v. Sanjay

4 1994 Supp (2) SCC 372

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 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 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

5 (2007) 3 SCC 755

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. "

19. 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 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 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 appellant accused Kanhaiya Lal are set aside and he is acquitted of the charge by giving benefit of doubt. He is

6 (2010) 15 SCC 588

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

20. 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 absence of

satisfactory explanation, cannot be made basis of conviction.

21. Similarly, Supreme Court in the matter of Tipparam

(supra), in para 16, has held that last seen together comes

into play where time gap between the point of time 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

person 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.

22. Reverting to the facts of the present case in the light of

aforesaid judgment rendered by Their Lordship of Supreme

Court in the matter of Anjan Kumar (supra) and Tipparam 7 (2017) 14 SCC 359

(supra), it is quite vivid that prosecution has only proved that

the death of deceased was homicidal in nature and that the

appellants were last seen with the deceased and no other

connecting link have been satisfactorily established and no

other incriminating circumstances which leads to the

hypothesis of guilt against the appellants persons have been

proved particularly when the accused persons and the

deceased were last seen together on 26.06.2013 at evening

and the dead body of the deceased was recovered on

28.06.2013 at 2.00 pm vide Ex.P/7. As such, there was long

gap of about 40 hours when the accused persons and the

deceased were last seen alive and the dead body of the

deceased was found. There is no other such evidence that the

deceased and the appellants were seen together just before

his death and as such, there was long gap and possibility of

other person coming in between cannot be ruled out. In

absence of any positive evidence it would be unsafe to convict

the appellants only on the basis of theory of last seen

together. Even otherwise, in absence of availability of other

incriminating circumstances, the theory of last seen together

cannot be made sole basis of conviction of the appellants

under Section 302 of the IPC.

23. So far as conviction of the appellants under Section 364

IPC is concerned, evidence of Santoshi (PW/9) would show that

the relationship between the appellants and the deceased

though may not be cordial but it was also not bad. Even in

absence of the deceased, one of the accused Akbar (A-1)

came to the house of the deceased and asked for food, which

was served by his wife Santoshi (PW/9) and after having food,

he (A-1) was waiting for the deceased to come and on the

request of the appellants, the deceased had gone to the bus

stand to help them. Even in para 5 of her cross-examination,

she has clearly admitted the relationship was good and there

was no such quarrel between the appellants and the deceased

and there is no evidence that there was motive for the offence

and the prosecution has failed to bring home the offence that

the deceased was abducted with the object of being murdered

as relationship of the deceased and the appellants were quite

good and they were not in quarreling terms.

24. Even after the incident, Akbar (A-1) again came back to

the house of deceased and gave his motorcycle to Santoshi

(PW/9) (wife of deceased husband), as such, there is no

ingredient of offence under Section 364 of the IPC is available

in the instant case. As such, We are of the considered opinion

that the learned trial Court is absolutely unjustified in

convicting the appellants for offence under Section 302 read

with section 34 of the IPC and Section 201 read with section

34 of IPC only on the basis of last seen together finding it fully

established in absence of motive for offence on the part of the

appellants and in absence of any incriminating evidence

against the appellants in the light of principles laid down by

Supreme Court in the matters of Arjun Marik, Sanjay

Thakran, Kanhaiya Lal and Tipparam (supra), We hereby

set aside the conviction so recorded and the sentence so

awarded by the trial Court vide impugned judgment dated

25.11.2014. The appellants herein are acquitted of the

charges of Sections 364, 302, 201 read with section 34 of IPC.

The appellants are in jail. They be released forthwith, if not

required in any other case.

25. The appeal is allowed to the extent indicated herein-

above.

                    Sd/-                               Sd/-

            (Sanjay K. Agrawal)                  (Rajani Dubey)
                  JUDGE                               JUDGE
pkd