Ram Kumar Mishra vs State Of Chhattisgarh
2022 Latest Caselaw 6227 Chatt

                                                                            Cr.A.No.484/2012

                                          Page 1 of 13

                                                                                            NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                          Criminal Appeal No.484 of 2012

        {Arising out of judgment dated 22-5-2012 in Sessions Trial
        No.88/2011 of the 1st Additional Sessions Judge, Bilaspur}

Ram Kumar Mishra, S/o Makhan Lal Mishra, aged about 40 years, R/o
Koni, P.S. Masturi, District Bilaspur (C.G.)
                                                     ---- Appellant

                                             Versus

State of Chhattisgarh, Through Police Station Masturi, District Bilaspur
(C.G.)
                                                       ---- Respondent

----------------------------------------------------------------------------------------------------
For Appellant:                  Mr. Ashutosh Trivedi, Advocate.
For Respondent/State: Mr. Ashish Tiwari, Govt. Advocate.
----------------------------------------------------------------------------------------------------

                        Hon'ble Shri Sanjay K. Agrawal and
                       Hon'ble Shri Deepak Kumar Tiwari, JJ.

Judgment On Board (13/10/2022)

Sanjay K. Agrawal, J.

1. By this appeal under Section 374(2) of the CrPC, the appellant

herein calls in question legality, validity and correctness of the

impugned judgment dated 22-5-2012, by which he has been

convicted under Section 302 of the IPC and sentenced to undergo

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

payment of fine to further undergo rigorous imprisonment for one

month.

Cr.A.No.484/2012

2. Case of the prosecution, in brief, is that on 5-10-2010 at 8.45

p.m., the appellant strangulated the deceased and thrown the dead

body near road at Chilhati in order to screen himself from the

offence and thereby committed the offence. Further case of the

prosecution is that deceased Kaleshwar Prasad was working as

driver with the appellant and they were friends also. On 5-10-

2010, in the afternoon, the appellant and the deceased came along

with liquor in the house of Ramprasad Kewat (PW-13) and they

have consumed drinks together and thereafter, deceased Kaleshwar

Prasad and appellant Ramkumar Mishra left the company of

Ramprasad Kewat (PW-13) in the night and thereafter, in the

morning at 4 a.m., the appellant said to have come back in the

house of Ramprasad Kewat and informed him about the accident

which he suffered and also told him that some how he managed to

come back pursuant to which Ramprasad Kewat informed to the

son of the appellant who came and taken his father, meanwhile,

whereabouts of Kaleshwar Prasad were being traced by one and all

and thereafter, on 9-10-2010, at Chilhati forest, dead body of

Kaleshwar Prasad was noticed in naked condition which was

informed by Deputy Sarpanch Ramkumar Chaudhary to the police

pursuant to which morgue intimation was recorded at the instance

of Kotwar Manharan on 9-10-2010 vide Exs.P-21 & P-22. Dead

body of Kaleshwar Prasad was identified by his brother Krishna

Kumar Kewat (PW-11) and his dead body was subjected to Cr.A.No.484/2012

postmortem vide Ex.P-8 conducted by Dr. J.P. Arya (PW-7) who

opined that cause of death was asphyxia due to throttling and

compression of of chest wall, duration from death to postmortem is

2-4 days. Thereafter, vide Ex.P-9, spare parts of motorcycle were

recovered vide Ex.P-9. Statements of the witnesses were recorded

under Section 161 of the CrPC and the matter was investigated.

3. After completion of investigation, charge-sheet was filed against the

appellant for offence under Section 302 of the IPC before the

jurisdictional criminal court which was committed to the Court of

Sessions for hearing and disposal in accordance with law.

4. The trial Court has framed charge under Section 302 of the IPC

against the appellant and proceeded on trial. The accused /

appellant abjured guilt and entered into trial. The prosecution in

order to bring home the offence examined as many as 23 witnesses

and exhibited 23 documents Exhibits P-1 to P-23. Krishna Kumar

Mishra - brother of the appellant has been examined by the

defence as DW-1. Two documents Exhibits D-1 & D-2 -

statements of Krishna Kumar and Laljee, respectively, have been

exhibited on behalf of the defence. Statement of the appellant was

recorded under Section 313 of the CrPC in which he abjured guilt

and pleaded innocence.

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

and documentary evidence on record, convicted the appellant Cr.A.No.484/2012

under Section 302 of the IPC and sentenced him to undergo

imprisonment for life as noticed in the opening paragraph of this

judgment against which this appeal under Section 374(2) of the

CrPC has been preferred by him.

6. Mr. Ashutosh Trivedi, learned counsel appearing for the appellant,

would submit that only on the basis of evidence of last seen

together of Ramprasad Kewat (PW-13), the appellant has been

convicted, whereas, in morgue intimations Exs.P-21 & P-22, the

appellant has not been named and he has been last seen together

with Ramprasad Kewat (PW-13) on 5-10-2010, whereas dead

body was recovered on 9-10-2010 at 10 a.m., thus there is more

than 4 days delay and furthermore, the statement of Ramprasad

Kewat (PW-13) under Section 161 of the CrPC was recorded on

11-3-2011, as such, even if the case of the prosecution i.e. the

evidence of last seen together is taken as it is, in absence of other

piece of corroborative evidence, conviction and sentences imposed

upon the appellant are liable to be set aside.

7. Mr. Ashish Tiwari, learned State counsel, would support the

impugned judgment and submit that the motive of offence is also

established as deceased Kaleshwar Prasad has illicit relationship with

the wife of the appellant, that is why the appellant has taken the

deceased to Chilhati forest and murdered him and thrown his body,

as such, last seen theory is proved. Therefore, the trial Court has Cr.A.No.484/2012

rightly convicted the appellant under Section 302 of the IPC and

the appeal deserves to be dismissed.

8. 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.

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

homicidal in nature, which the trial Court has recorded in

affirmative by relying upon the statement of Dr. J.P. Arya (PW-7)

and postmortem report Ex.P-8. As such, the finding recorded by

the trial Court is a finding of fact based on the evidence available

on record which is neither perverse nor contrary to record.

10. Now, the question is, whether the trial Court is justified in

convicting the appellant on the basis of evidence of last seen

together with Ramprasad Kewat (PW-13)?

11. Admittedly, as per the statement of Ramprasad Kewat (PW-13),

the appellant and the deceased left his company on 5-10-2010

preferably in the evening / night, as no exact time has been stated,

but thereafter, dead body of the deceased was found in Chilhati

forest on 9-10-2010 vide Ex.P-21 - morgue intimation at 10

a.m. in which name of the appellant does not find place. Dead

body was recovered after more than 4 days from the date of last

seen together of the appellant with the deceased. In the statement

of Ramprasad Kewat (PW-13) recorded under Section 161 of the Cr.A.No.484/2012

CrPC on 11-3-2011 with delay of five months for which there is

no explanation, for the first time, the theory of last seen of the

appellant with the deceased came in light.

12. In that view of the matter, now, the question for consideration

would be, whether the trial Court is justified in convicting the

appellant only on the basis of the theory of last seen together

finding it to be duly established?

13.In the matter of Jaharlal Das v. State of Orissa 1, the Supreme

Court has noted the fact that at the stage of inquest, the important

incriminating circumstance namely, the deceased was last seen in

the company of the accused, was not noted and that is not there in

the inquest report. Thereafter, in that view of the above fact and

other evidence on record, their Lordships have held that the

deceased was last seen in the company of the accused is not

established beyond reasonable doubt.

14.Similarly, in the matter of Paramjit Singh and others v. State of

Punjab and others2, there is delay of 4½ months in recording the

statements of the two police officials under Section 161 of the

CrPC and no explanation was given by the investigating officer

therein as to why the statements could not be recorded earlier.

15.In the matter of Arjun Marik v. State of Bihar3, it has been held by

1 (1991) 3 SCC 27 2 (1997) 4 SCC 156 3 1994 Supp (2) SCC 372 Cr.A.No.484/2012

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 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."

16.Likewise, in the matter of State of Goa v. Sanjay Thakran4, 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 4 (2007) 3 SCC 755 Cr.A.No.484/2012

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 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. "

17. Similarly, in the matter of Kanhaiya Lal v. State of Rajasthan5, 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 5 (2014) 4 SCC 715 Cr.A.No.484/2012

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 Rajasthan1.

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."

18. In the matter of Anjan Kumar Sarma v. State of Assam6, 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 (2017) 14 SCC 359 Cr.A.No.484/2012

absence of satisfactory explanation, cannot be made basis of

conviction.

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

Police7, the Supreme Court has held that though the evidence of

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

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

7 (2018) 16 SCC 161 Cr.A.No.484/2012

beyond reasonable doubt and requires corroboration."

20. In the matter of State of Goa v. Sanjay Thakran and another 8, 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 time of crime, the circumstance of last

seen together, even if proved, cannot clinchingly fasten the guilt on

the accused.

21. Reverting to the facts of the case in light of the aforesaid principles

of law, it is quite vivid that the appellant and the deceased were last

seen together by Ramprasad Kewat (PW-13) on 5-10-2010 up to

evening / night and thereafter, dead body of the deceased was

recovered on 9-10-2010 at 10 a.m. in Chilhati forest. As such,

the time gap is 4 days, thus there is considerable time gap between

last seen together and the time when the dead body of the

deceased was recovered. Furthermore, in morgue intimations

Exs.P-21 & P-22, the appellant has not been even named as

suspect. Statement of the witness of last seen Ramprasad Kewat

(PW-13) has been recorded under Section 161 of the CrPC on

11-3-2011 i.e. after more than five months which creates doubt

on the mind of the court as to whether he has actually seen the

deceased with the appellant on 5-10-2010 and in absence of

8 (2007) 3 SCC 755 Cr.A.No.484/2012

corroboration, it cannot be held that the appellant is the author of

the crime. No other circumstances have been brought on record.

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

aforesaid decisions rendered by the Supreme Court particularly, in

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

has only established 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 has been proved. Even

the prosecution in the present case has failed to prove the death of

the deceased to be homicidal in nature. As such, in absence of

poof of other circumstances or chain of circumstances, only the

theory of 'last seen together' cannot be made the sole basis for

conviction of the appellant as it would be unsafe to rest conviction

only on the theory of 'last seen together'. Therefore, we are of the

considered opinion that the learned trial Court is absolutely

unjustified in convicting the appellant under Section 302 of the

IPC only on the basis of the theory of 'last seen together' finding it

fully established 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 Arjun Marik (supra), Sanjay Thakran's case (supra) and

Kanhaiya Lal (supra).

Cr.A.No.484/2012

23. We hereby set aside the conviction so recorded and the sentences

so awarded by the trial Court to the appellant vide the impugned

judgment dated 22-5-2012. The appellant is acquitted of the

charge under Section 302 of the IPC. He is on bail. He need not

surrender. However, his bail bonds shall remain in force for a

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

437A of the CrPC.

24. The appeal is allowed to the extent indicated herein-above.

                  Sd/-                                         Sd/-
           (Sanjay K. Agrawal)                      (Deepak Kumar Tiwari)
                 Judge                                        Judge
Soma