Chattisgarh High Court
Sohan @ Jaiha vs State Of C.G on 15 September, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 648 of 2012
• Sohan @ Jaiha S/o Ghasiram Rathiya Aged About 30 Years R/o Village -
Godi, Ps Tamnar, Distt. Raigarh C.G. ---- Appellant
Versus
• State Of C.G. S/o Through Ps - Tamnar, Distt. Raigarh C.G.
----Respondent
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For Appellant: Shri Manoj Kumar Sinha, Advocate
For Respondent/State: Shri Afroz Khan, PL
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Sachin Singh Rajput, JJ
Judgment On Board
(15.09.2022)
Sanjay K. Agrawal, J.
1. By way of this appeal filed under Section 374(2) of the Code of
Criminal Procedure the appellant has assailed the judgment impugned dated
27.07.2012 passed by Additional Sessions Judge, Raigarh in Sessions Trial
No. 132/2010 convicting him under Section 302 IPC and sentencing to
undergo imprisonment for life with fine of Rs. 2000/-, in default of payment of
fine, to further undergo RI for 06 months.
2. Facts of the case in brief are that on 21.07.2010 there was a Rath
Festival, and while celebrating the same the deceased namely Kundu @
Sadashiv was dancing there along with other villagers. At about 10 pm when
the deceased was going towards the pond, the accused/appellant met him
on the way and over some old matter, a dispute arose between the two and
in furtherance thereof, the deceased slapped him. Thereafter,
accused/appellant forcibly took the deceased to a secluded place and
casued his death by assaulting with the help of club. On the next morning
when the brother of the deceased namely Jugnu (not examined) went to the
pond side he saw the deceased lying in the field of village Kotwaar with
bleeding injuries on foot, head, forehead and chest. After getting back
home, Jugnu informed about the incident to his another brother Sagun (PW-
1) who in turn reported the matter to the police which led to registration of
FIR (Ex.P-7). Merg (Ex.P-8) was registered at Crime No. 127/2010 for the
offence under Section 302/34 IPC. Plain as well as blood stained soil and
the club were seized in presence of the witnesses under Ex.P-1 & Ex. P-2.
Seized articles were sent to the Forensic Scince Laboratory but the report
has not been obtained therefrom. Diary statements of the witnesses were
recorded by the Police; inquest on the body of the deceased was conducted
vide (Ex.P-3); and the body was sent for postmortem examination, which
was conducted by Dr. S. Tigga (PW-12) who gave his report (Ex.P-6). After
completion of investigation charge-sheet was filed against the
accused/appellant under Section 302 IPC followed by framing of charge
accordingly.
3. So as to prove the complicity of the accused/appellant in the crime in
question, prosecution has examined as many as 14 witnesses. Statement of
the accused/appellant under Section 313 Cr.PC was also recorded in which
he pleaded his innocence and false implication in the case. Defence
however has not examined any witness in support of its case.
4. After hearing the parties and going through the material available on
record including the evidence of the witnesses, learned Additional Sessions
Judge has convicted and sentenced the accused/appellant as detailed in
paragraph No. 1 of this judgment. Hence this appeal.
5. Counsel for the appellant submits that conviction of the
accused/appellant is based on the sole testimony of Karmu Sidar (PW-11)
which is absolutely unreliable and does not inspire the confidence. He
submits that the testimony of the eye-witness has not been corroborated by
the statement of other witnesses examined by the prosecution and therefore
the findings recorded by the trial Court convicting and sentencing the
accused/appellant as mentioned above are fully unjustified.
6. On the other hand, counsel appearing for the State supports the
judgment impugned and submits that the findings recorded by the Sessions
Judge holding the accused/appellant guilty under Section 302 IPC being
based on proper appreciation of the evidence on record are fully justified and
do not call for any interference in this appeal, and being so the appeal is
liable to the dismissed.
7. Heard counsel for the parties at length and went through the evidence
on record with utmost care and caution.
8. The first question to be decided by this Court is whether the death of
the deceased was homicidal in nature or not ? Dr. S. Tigga (PW-12) who
conducted the postmortem examination on the body of the deceased and
gave his report Ex.P-6 has stated that he noticed abrasion on his face,
shoulders, knees, wrist and left foot and there was rigor mortis on the dead
body, froth was coming out of the mouth and faeces had also come out. On
internal examination he found that trachea was congested, both the lungs
and kidney had turned pale, half digested food was there in the stomach and
odour of alchohal was emanating. This witness has opined that the cause of
death was shock due to internal bleeding leading to cardio respiratory arrest,
and the death was homicidal in nature. Thus from the evidence of doctor
(PW-12) it is established that death of the deceased was homicidal in nature.
9. Now the second question to be answered by this Court is whether it is
the accused/appellant who was involved in causing the death of the
deceased? Admittedly, the appellant has been convicted on the sole
testimony of Karmu Sidar (PW-11) who is said to have last seen the
accused/appellant and the deceased together. PW-11 has stated that when
he was about to sleep, the accused/appellant and the deceased had come
there together. He has further stated that accused was insisting upon the
deceased to accompany him towards Dhodihadipa which was refused by the
deceased but the accused/appellant forcibly took him to the said place, and
on the next day he came to know that his dead body was found in the field.
Apart from this witness, the prosecution has not examined any other witness
who could have corroborated the testimony of PW-11 or could have spoken
something in support of the case of prosecution. It is a settled legal position
that the conviction cannot be based solely on the testimony of the last seen
unless the same gets corroborated by other sources.
10. The question that needs consideration now is, whether
the theory of last seen together has been duly proved by the prosecution
against the appellant and whether the trial Court is justified in convicting the
appellant for offence punishable under Section 302 of IPC on that basis ?
11. In the matter of Arjun Marik v. State of Bihar1, 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 197 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 onthat basis alone can be founded."
12. 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 persons meeting or approaching the deceased at
1 1994 Supp (2) SCC 372
2 (2007) 3 SCC 755
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 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. "
13. 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 15 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 Rajasthan3.
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."
14. In the matter of Anjan Kumar Sarma v. State of
Assam4 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.
15. Finally in the matter of Navneethakrishnan V. State by
Inspector of Police5, their Lordships of the Supreme Court have
clearly held that evidence of last seen is an important piece of
evidence, but accused cannot be convicted solely on the basis of
evidence of last seen together and it requires corroboration and held as
under :
"18. ... 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
3 (2010) 15 SCC 588
4 (2017) 14 SCC 359
5 AIR 2018 SC 2027
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 can't discharge the burden of
establishing the guilt of accused beyond reasonable doubt
and requires corroboration."
16. As regards the case in hand, apart from the evidence of PW-11
who is said to have the deceased and the accused together, there is not
even a single evidence to corroborate the testimony of last seen. Thus,
looking to the facts and circumstances of the case, the conviction of the
accused/appellant u/S 302 IPC based on the sole testimony of PW-11
cannot be made to stand, as has been held by the Apex Court in series
of decisions. No other links have been satisfactorily made out by the
prosecution pointing to the guilt of the accused.
17. Thus in view of the aforesaid factual and legal discussion, this
Court is of the considered opinion that the prosecution has not been
able to establish its case beyond all reasonable doubts and being so
the conviction of the accused/appellant u/S 302 IPC is liable to be set
aside.
18. Accordingly, the appeal is thus allowed, the judgment impugned
is set aside, and the accused/appellant is acquitted of the charge
levelled against him. As the appellant is already on bail, the bail bonds
furnished by him stands discharged.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Jyotishi
