Chattisgarh High Court
Chaitram Ambade And Ors vs State Of Chhattisgarh on 13 February, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 158 of 2014
1. Chaitram Ambade, S/o. Gopichand Ambade, Aged About 50
Years.
2. Mahendra Ambade, S/o. Chaitram Ambade, Aged About 22
Years.
3. Anupama Bai, W/o. Chaitram Ambade, Aged About 50 Years.
All R/o. Village Halamkodo, Police Station Gaindatola, District :
Rajnandgaon, Chhattisgarh
---Appellants
Versus
State Of Chhattisgarh, Through The Aarakshi Kendra
Gaindatola, District Rajnandgaon, Chhattisgarh.
---Respondent
For Appellants :- Mr. Shalvik Tiwari, Advocate
For State/Respondent :- Mr. Avinash Singh, Panel Lawyer
(Division Bench)
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Radhakishan Agrawal
Judgment on Board
(13.02.2023)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellants under Section
374(2) of Cr.P.C. is directed against the impugned judgment
dated 06.12.2013, by which the learned Second Additional
Sessions Judge, Rajnandgaon has convicted the appellants
herein for the offence under Section 302 read with Section 34 of
I.P.C. and sentenced to life imprisonment with fine of Rs.200/-
each, in default of payment of fine, further three months rigorous
imprisonment.
2. Case of the prosecution, in brief, is that on 03.11.2012 during
day time at village Halmakodo, Police Station- Gaindatola,
Rajnandgaon, the appellants in furtherance of common intention
assaulted Suresh Ambade (now deceased) by bamboo stick
and iron rod, by which he suffered grievous injury and died. (The
co-accused Motin Bai had already died during pendency of trial
and case against her had abated already).
3. Further case of the prosecution, in brief, is that on 03.11.2012,
Ahit Ambade along with his wife Santri Bai and son Dharmendra
were returning to his home by bullock cart and when they
reached near School, then Indal Singh (PW-11) informed them
that his brother has been assassinated near field of Dilip
Ambade, then he reached immediately to the spot in the field of
Dilip and noticed the dead body of his brother Suresh Ambade
who has suffered injury on his head and bloodstained stone and
bambloo stick were lying there. Thereafter, the matter was
immediately reported by Ahit (PW-1) to Police Station
Gaindatola, pursuant to which merg intimation was registered
vide Ex.P-1 and against unknown persons the FIR was
registered vide Ex.P-6. Inquest was conducted vide Ex.P-3 and
on recommendation of panchas, dead body of the deceased
was sent for post-mortem, which was conducted by Dr.
R.R.Dhruw (PW-18). The post-mortem report is Ex.P-7, in which
cause of death is stated to be shock due to head injury massive
hemorrhage and death was homicidal in nature. The Najri-
naksha was also prepared and pursuant to memorandum
statement of the appellant No.1, bamboo stick was seized vide
Ex.P-17, pursuant to memorandum statement of the appellant
No.2, bamboo stick was seized vide Ex.P-18 and then on the
memorandum statement of the appellant No.3, one iron rod was
seized vide Ex.P-19 and stone was also seized. All the seized
articles were sent for FSL and in FSL report, no blood was
found on the bamboo stick and iron rod seized from appellants,
however, on the stone seized from the spot vide Ex.P-28,
human blood was found. After due investigation, the appellants
were charge-sheeted for the aforesaid offences before the
jurisdictional criminal court and ultimately it was committed to
the Court of Sessions for trial in accordance with law, in which
the appellants abjured their guilt and entered into defence
stating that they have not committed the offence and they have
been falsely implicated.
4. In order to bring home the offence, the prosecution has
examined as many as 22 witnesses and exhibited 56
documents and the appellants/accused in support of their
defence have examined DW-1 & DW-2 and the documents
Exs.D-1 & D-2 were brought on record.
5. The trial Court, after appreciation of oral and documentary
evidence on record, convicted the appellants for the aforesaid
offence and sentenced as mentioned in the opening paragraph
of this judgment, against which the present appeal has been
preferred.
6. Mr. Shalvik Tiwari, learned counsel for the appellants would
submit that only on the basis of alleged evidence of Pramila
(PW-6) as a witness of last seen together of the appellants
along with the deceased, appellants have been convicted;
whereas on the basis of evidence of last seen together, unless it
is corroborated, conviction cannot be accorded. Furthermore,
from the appellants No.1 to 3, weapon of offence is alleged to
have seized but no blood much less human blood has been
found in FSL report vide Ex.P-55 and therefore the recovery is
of no use. Furthermore, the extra judicial confession given by
the appellant No.1 to Indal Singh (PW-11) is also of no use as it
is a weak piece of evidence and no such extra judicial
confession can be said to have been given to Indal Singh (PW-
11), as such, the impugned judgment of conviction is liable to be
set aside and appeal deserves to be allowed.
7. On the other hand, Mr. Avinash Singh, learned State counsel,
would support the impugned judgment and submit that
conviction is well founded and based on the extra judicial
confession made by the appellant No.1 - Chaitram Ambade
before Indal Singh Mandavi (PW-11). He would further submit
that presence of appellants along with the deceased i.e.
deceased was seen last time in the company of the appellants,
finds support from the evidence of Pramila (PW-6) and presence
of appellant No.2 Mahendra Abade with stone finds support
from the evidence of Sumitra Bai (PW-7); therefore, the appeal
deserves to be dismissed.
8. We have heard learned counsel for the parties, considered their
rival submissions made herein-above and went through the
records with utmost circumspection.
9. The first question as to whether the death of the deceased
Suresh Ambade was homicidal in nature, has been answered by
the trial Court in affirmative holding the death to be homicidal in
nature, relying upon the post-mortem report Ex.P-7, proved by
Dr.R.R.Dhruw (PW-18), which in our considered opinion is a
correct finding of fact based on evidence available on record, it
is neither perverse nor contrary to the record and accordingly
we hereby affirm the said finding.
10. Now the question is whether the appellants are authors of crime
in question, which the trial Court has also held in affirmative
relying upon the following incriminating piece :-
(i) that the appellants and deceased were last seen together
on 03.11.2012 by Pramila (PW-6), Sumitra Bai (PW-7) and
Pushpa Bai (PW-8).
(ii) that pursuant to memorandum statement of appellant
No.1, bamboo stick has been seized vide Ex.P-17 and also from
appellant No.2, bamboo stick has been seized vide Ex.P-18 and
from appellant No.3, iron rod has been seized vide Ex.P-19,
which were used for commission of offence.
(iii) that the appellant No.1 has given extra judicial confession
to Indal Singh (PW-11).
11. We will consider all three incriminating circumstances found
proved by the trial Court, one by one.
12. Evidence of last seen together : Pushpa Bai (PW-8) in her
statement before the Court has only stated that she along with
Sumitra Bai (PW-7) and Pramila (PW-6) were going to village
Admagondi for collecting lime-stone and they have noticed the
presence of appellant No.3 and Motin Bai (now died) and they
were throwing stone, but she could not see correctly and when
they came back to the village, they saw the dead body of
Suresh (deceased herein). From a careful perusal of the
statement, it cannot be said that she has seen the appellants or
anyone of the three appellants alongwith deceased on
03.11.2012. Similar statement has been made by Sumitra Bai
(PW-7) and she has also stated that she has seen the accused
persons in the field of Dilip Ambade (PW-13), but in cross-
examination, she further states that the place where the
appellants were standing, they had their field nearby and at that
time, the paddy was not harvested. As such, these witnesses
cannot be branded as witnesses of last seen, as they nowhere
state that they have seen the appellants and deceased standing
together in the field of Dilip, so these witnesses are also not the
witnesses of last seen.
13. The next witness is Pramila (PW-6) who has been relied upon
by the trial Court as a witness of last seen, she in her statement
before the Court has stated that on the date of offence she
along-with Sumitra seen the appellants in the field along with the
deceased but she had not seen any further incident and this
witness has been declared hostile, but she maintained that she
has seen the appellants only in the field and when they returned
back from the village Admagondi after collecting lime-stone,
they have seen the dead body of Suresh. This witness though
has been relied upon by the trial Court as a witness of last seen
of the appellants and deceased but date and more particularly
time at which she has seen the appellants and deceased
together has not been stated and the same has not been
corroborated by Sumitra Bai (PW-7) and Pushpa Bai (PW-8)
though they were with Pramila (PW-6) and they have seen the
appellants and deceased together. As such, it would be unsafe
to rely upon the evidence of Pramila (PW-6) that they have seen
the appellants and deceased together and thereafter the dead
body of the deceased was noticed on 03.11.2012 at 6:00 p.m.
vide merg intimation (Ex.P-1). Assuming that she has seen the
appellants and deceased lastly together, the question would be
whether the trial Court is justified in convicting the appellants on
the basis of theory of last seen together finding it to be duly
established.
14. 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.
15. 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 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."
1(1991) 3 SCC 27
21994 Supp (2) SCC 372
16. 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 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 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
3(2007) 3 SCC 755
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 Rajasthan4,
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
4(2014) 4 SCC 715
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 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.
19. In the matter of Navaneethakrishnan v. State by Inspector of
Police6, 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
5(2017) 14 SCC 359
6(2018) 16 SCC 161
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 beyond reasonable
doubt and requires corroboration."
20. In the matter of State of Goa v. Sanjay Thakran and another 7,
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.
7(2007) 3 SCC 755
21. In the instant case, the appellants and the deceased were last
seen by Pramila (PW-6) on 03.11.2012 and as per the FIR and
merg intimation, dead body was recovered on 03.11.2012 at
6/6:05 p.m., which is a gap of more than 7-8 hours and even if it
is seen at 10 O'clock in the morning, the dead body was
recovered after a period of 8 hours, as such, there is
considerable time gap of last seen together and dead body of
the deceased recovered, therefore, it cannot be held that only
the appellants are authors of the crime in absence of
corroboration.
22. Second incriminating circumstance i.e. memorandum statement
and subsequent recovery :- Pursuant to memorandum
statement of the appellant No.1 & 2, bamboo stick has been
seized vide Ex.P-17 & P-18 and from memorandum statement
of appellant No.3, iron rod has been seized, but surprisingly in
FSL report Ex.P-55, no blood has been found. In view of the
decision of the Supreme Court in the matter of Balwan Singh v.
State of Chhattisgarh & Anr 8 in absence of any human blood
on the weapon in question, the recovery is of no use, even if the
seizure pursuant to memorandum is established beyond
reasonable doubt. Even Pramila (PW-6), Sumitra Bai (PW-7)
and Pushpa Bai (PW-8), prosecution witnesses have not
established that the appellants were armed with such a deadly
weapons bamboo stick and also rod.
8 (2019) 7 SCC 781
23. The third incriminating circumstance found established by the
trial Court is that the appellant No.1 has given extra judicial
confession to Indal Singh (PW-11). Careful perusal of the
statement would show that Indal Singh simply stated that the
appellant No.1 crossed him stating that marpeet has taken place
with Suresh and in cross examination, he further improved the
statement saying that he was shouting. However, Indal Singh
(PW-11) while firstly informing to deceased brother Ahit (PW-1)
did not name the appellant No.1 that he has given extra judicial
confession to him. Consequently, the FIR (Ex.P-6) and Merg
Intimation (Ex.P-1) which were lodged by Ahit (PW-1) are silent
about this and name of the appellant No.1 has not been there
alleging that he has made any extra judicial confession to Indal
Singh (PW-11) and, as such, making of extra judicial confession
by the appellant No.1 to Indal Singh (PW-11) is not established
on record and even otherwise, the extra judicial confession is
weak piece of evidence and conviction cannot be made solely
on the basis of extra judicial confession and no other evidence
is found proved by the trial Court.
24. In view of the aforesaid discussion, we are unable to uphold the
conviction and sentences awarded to the three appellants
herein. The conviction and sentences awarded to the appellants
for offence under Section 302 read with Section 34 of I.P.C. are
hereby set aside. They are acquitted of the charge under
Section 302 read with Section 34 of I.P.C. Appellant No.1 & 2
are in jail, they are directed to be released forthwith, if not
required in any other offence. Appellant No.3 is on bail, she
need not surrender, however, her bail bond shall remain in
operation for a period of 6 months in view of the provisions
contained in Section 437-A of Cr.P.C.
25. The appeal is allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Ashok
