Hulas @ Khulas @ Khubu And Anr vs State Of Chhattisgarh
2023 Latest Caselaw 193 Chatt

                                                                          CRA-1186-2013
                                       Page 1 of 15


                                                                                    NAFR

        HIGH COURT OF CHHATTISGARH, BILASPUR
                       Criminal Appeal No. 1186 of 2013
1.     Hulas @ Khulas @ Khubu, S/o Chamruram, aged about 26
       years,
2.     Sunder Kahra, S/o Ramratan Kahra, aged about 22 years,
[Both Resident of Village Kashigarh, Police Station Jaijaipur, District
Janjgir-Champa (Chhattisgarh)]
                                                                        ---- Appellants
                                         Versus
State of Chhattisgarh, through Station House Officer- Jajaipur, District
Janjgir-Champa (Chhattisgarh)
                                                                      ---- Respondent
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For Appellants : Mr. Akhtar Hussain, Advocate For Respondent-State : Mr. Avinash Singh, Panel Lawyer

----------------------------------------------------------------------------------------------

Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Rakesh Mohan Pandey, JJ

Judgment on Board (11.01.2023) Sanjay K. Agrawal, J

(1) By way of this criminal appeal filed under Section 374(2) of

Cr.P.C., the accused-appellants are calling in question the legality,

validity and correctness of the impugned judgment of conviction and

order of sentence dated 28.11.2013, passed by the Court of learned

Addl. Sessions Judge, Sakti, District Janjgir-Champa (Chhattisgarh),

in Sessions Trial No.104/2011, whereby they have been convicted for CRA-1186-2013

offence under Section 302 read with Section 34 of IPC and sentenced

to undergo life imprisonment with fine of Rs.80,000/- and, in default of

payment of fine, additional rigorous imprisonment of 04 years.

(2) The case of the prosecution, in short, is that between

13.02.2011, at about 07:00 AM, to 17.02.2011, at about 09:30, at

Village Kashigarh within the ambit of Police Station Jaijaipur, District

Janjgir-Champa (Chhattisgarh) the accused-appellants herein

assaulted Dharam Chandra (hereinafter referred to as the

"deceased") by means of 'lathi' and iron rod, due to which he suffered

grievous injury and died and, thereby, committed the offence under

Section 302, 34 of IPC.

(3) The further case of the prosecution is that on 13.02.2011 at

about 09:00 PM the two accused-appellants herein visited the house

of the deceased and requested him to accompany them for repairing

the electricity line, as he was an electrician, pursuant to which

deceased accompanied both of them but did not return back to his

house. Thereafter, on 17.02.2011, the dead-body of deceased was

noticed by Dharmu Chandra (PW-11), brother of the deceased, and

he immediately lodged marg intimation (Ex.P/13). Panchanama for

identification of the dead-body of deceased was prepared vide

Ex.P/12. Spot map was prepared vide Ex.P/10 and inquest was also

conducted vide Ex.P/02. Thereafter, the dead-body of deceased was

sent for postmortem examination and in the postmortem examination CRA-1186-2013

report (Ex.P/12), conducted by Dr. Rajkumar Singh (PW-20), the

cause of death of deceased remains open, as the dead-body was

found in decomposed condition. The appellants-accused were

arrested and their memorandum statements were recorded vide Ex.P/

05 & P/07 respectively and pursuant to memorandum statement of

appellant No.01- Hulas recorded vide Ex.P/05, motor-cycle, jacket

and full-pant were seized vide Ex.P/06 and, similarly, pursuant to

memorandum statement of appellant No.02- Sunder Kahra, iron plier

and full-pant were seized vide Ex.P/08. Further, from the place of

incident, one iron rod was recovered vide Ex.P/04. Thereafter, all the

aforesaid seized articles were sent for FSL examination vide Ex.P/20,

but no FSL report has been brought on record for the reasons best

known to the prosecution. Further, visara from the dead-body of

deceased was also preserved vide Ex.P/21 and same was sent for

FSL examination vide Ex.P/22 and in the FSL report (at Page 59 of

the paper-book) it was opined that no poisonous substance was

found in the said visara. Thereafter, statements of witnesses were

recorded and, after due investigation, the police filed charge-sheet in

the Court of Chief Judicial Magistrate, Jaijaipur and, the case was

committed to the Court of Sessions for trial in accordance with law, in

which the appellants/accused abjured their guilt and entered into

defence by stating that they are innocent and have been falsely

implicated.

CRA-1186-2013

(4) The prosecution in order to prove its case examined as many

as 20 witnesses and exhibited 27 documents apart from the FSL

report, whereas the appellants-accused in support of their defence

has not examined any witness, but exhibited 08 documents (Ex.D/01

to D/8).

(5) The learned trial Court after appreciating the oral and

documentary evidence available on record proceeded to convict the

appellants for offence under Section 302/34 of IPC and sentenced

them as mentioned herein-above, against which this appeal has been

preferred by the appellants-accused questioning the impugned

judgment of conviction and order of sentence.

(6) Mr. Akhtar Hussain, learned counsel appearing for the

appellants submits that the learned trial Court is absolutely unjustified

in convicting the appellants for the offence under Section 302/34 of

IPC, as the prosecution has failed to prove the offence beyond

reasonable doubt. He submits that the conviction of the appellants is

premised on following three incriminating circumstances: (i) theory of

last seen together, (ii) extra-judicial confession made by the appellant

No.01 before Dharmu Chandra (PW-11) and (iii) recovery of iron plier

pursuant to memorandum statement of accused-appellant No.02. All

three incriminating circumstances are inadmissible, unsustainable

and bad in the eyes of law, as the theory of last seen together was

found proved by the learned trial Court in absence of any CRA-1186-2013

corroboration; the alleged extra-judicial confession made by the

appellant No.01 before Dharmu Chandra (PW-11) does not find

mention in the marg intimation (Ex.P/13) lodged by him and also in

his Section 161 CrPC statement and, further, there is no FSL report

with regard to existence of human blood on the seized item, therefore,

seizure of iron plier pursuant to memorandum statement of accused-

appellant No.02 and seizure of iron rod from the place of

occurrence/spot are of no help to the prosecution. Hence, the present

appeal deserves to be allowed and the appellants are liable to be

acquitted/discharged from the said offence.

(7) Per-contra, learned State counsel supported the impugned

judgment of conviction and order of sentence and submits that the

prosecution has proved the offence beyond reasonable doubt by

leading evidence of clinching nature. The learned trial Court has

rightly convicted the appellant for the offence mentioned hereinabove.

Therefore, the present 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 and foremost question is as to whether the death of the

deceased was homicidal in nature, which the learned trial Court has

recorded in affirmative by taking into consideration the postmortem

report (Ex.P/12), duly proved by Dr. Rajkumar Singh (PW-20), who CRA-1186-2013

has conducted the postmortem of the dead-body of the deceased.

Accordingly, taking into consideration the postmortem report

(Ex.P/12) and the statement of Dr. Rajkumar Singh (PW-20), we are

of the considered opinion that the learned trial Court is absolutely

justified in holding that the death of deceased is homicidal in nature,

as the same is correct finding of fact based on evidence and same is

neither perverse nor contrary to the record. Accordingly, we hereby

affirm the said finding.

(10) Now the next question would be whether the learned trial Court

has rightly held the accused-appellants herein as perpetrator of the

crime in question ?

(11) In order to convict the two appellants herein the learned trial

Court has found proved the following three incriminating

circumstances: (i) the evidence of last seen together, (ii) the extra

judicial confession made by the accused-appellant No.01 before

Dharmu Chandra (PW-11) and (iii) the recovery of iron plier pursuant

to memorandum statement of accused-appellant No.02, as projected/

relied upon by the prosecution. We will deal/consider each of the

aforesaid incriminating circumstances one by one.

(12) As regards incriminating circumstance No.(i) vis-a-vis theory of

last seen together: In order to prove the story of last seen together,

the prosecution has adduced the evidences of Sushila Chandra (PW-

02), wife of the deceased and Dooj Bai (PW-04), wife of deceased's CRA-1186-2013

younger brother, namely, Dharmu Chandra (PW-11), as they have

seen the appellants and the deceased alive lastly as on 13.02.2011 at

at about 09 PM, when deceased, Sushila Chandra (PW-02) and Dooj

Bai (PW-04) all were in the house and the accused-appellants herein

came to their house and took the deceased alongwith them on the

pretext of repairing the electricity line, as the deceased was an

electrician, but thereafter deceased did not return back to home and,

thereafter, on 17.02.2011, at 09:30 AM the dead-body of deceased

was noticed by Dharmu (PW-11), pursuant to which marg intimation

(Ex.P/13) was lodged.

(13) In the matter of Jaharlal Das v. State of Orissa1, 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) In the matter of Arjun Marik v. State of Bihar 2, 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 :-

1 (1991) 3 SCC 27 2 1994 Supp (2) SCC 372 CRA-1186-2013

"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."

(15) Likewise, in the matter of State of Goa v. Sanjay Thakran 3, 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

3 (2007) 3 SCC 755 CRA-1186-2013

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. "

(16) Similarly, in the matter of Kanhaiya Lal v. State of Rajasthan 4,

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

4 (2014) 4 SCC 715 CRA-1186-2013

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."

(17) In the matter of Anjan Kumar Sarma v. State of Assam 5, 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) 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, 5 (2017) 14 SCC 359 6 (2018) 16 SCC 161 CRA-1186-2013

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 beyond reasonable doubt and requires corroboration."

(19) 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 CRA-1186-2013

(20) Reverting to the facts of the present case in light of principle of

law laid down by their Lordships of Supreme Court in above-stated

cases, it is quite vivid that the accused-appellants and the deceased

were lastly seen alive on 13.02.2011 at about 09:00 PM by Sushila

Chandra (PW-02) and Dooj Bai (PW-04) and the dead-body of the

deceased was recovered on 17.02.2011 at about 09:30 AM i.e. with a

gap of more than 04 days, as such, there is considerable time gap

between the last seen together evidence and the recovery of dead-

body. Therefore, it cannot be held that the appellants are the

perpetrator of the offence and, in absence of corroboration, it cannot

be held that it is only and only the present appellants who are the

authors of the crime. We hereby hold accordingly.

(21) As regards incriminating circumstance No.(ii) vis-a-vis alleged

extra judicial confession made by the appellant No.01 before Dharmu

Chandra (PW-11) : A bare perusal of the statement given by Dharmu

Chandra (PW-11), who is brother of the deceased, before the Court

would show that in Para-5 of his statement he for the first time has

stated that the appellant No.01- Hulas @ Khulas has confessed

commission of murder of his brother- Dharam Chandra (deceased),

which statement does not find mention in the marg intimation

(Ex.P/13) lodged by him as also in his Section 161 CrPC statement.

Furthermore, it is quite unnatural that after committing murder of

deceased, the appellant No.01 would go back and make confession CRA-1186-2013

of his crime before the real brother of the deceased i.e. Dharmu

Chandra (PW-11) that he has committed murder of his brother

(deceased). Even otherwise, neither the exact words uttered by the

appellant No.01 nor the date, time and place have been

mentioned/specified with regard to the alleged extra-judicial

confession made by the appellant No.01 before Dharmu Chandra

(PW-11). As such, the alleged extra-judicial confession made by the

appellant No.01 to Dharmu Chandra (PW-11) is a weak piece of

evidence and does not found to have been proved. We hereby hold

accordingly.

(22) As regards incriminating circumstance (iii) vis-a-vis recovery of

iron plier pursuant to memorandum statement of accused-appellant

No.02- Sunder: The aforesaid iron plier seized vide Ex.P/08 pursuant

to the memorandum statement of the appellant No.02 recorded Ex.P/

07 was sent for FSL examination vide Ex.P/20 alongwith other items

seized vide seizure memos (Ex.P/04, P/06 & P/09), but no FSL report

with respect to the aforesaid seized articles is brought on record for

the reasons best known to the prosecution.

(23) The Supreme Court in the matter of Balwan Singh vs. State of

Chhattisgarh and another8 held that if the recovery of bloodstained

articles is proved beyond reasonable doubt by the prosecution, and if

the investigation was not found to be tainted, then it may be sufficient

8 (2019) 7 SCC 781 CRA-1186-2013

if the prosecution shows that the blood found on the articles is of

human origin though, even though the blood group is not proved

because of disintegration of blood and held in Para-24 as under:

"24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution."

(24) Reverting to the facts of the present case in light of principle of

law laid down by their Lordships of the Supreme Court in the matter of

Balwan Singh (supra), it is quite vivid that there is no evidence

available on record to show that human blood was found on the iron

plier seized pursuant to the memorandum statement of appellant

No.02, in absence of which, such a recovery is of no help to the

prosecution. We hereby hold accordingly.

(25) In that view of the matter, we are unable to hold that the

prosecution has been able to prove the five golden principles to

constitute the 'panchsheel' of proof of a case based on circumstantial

evidence, as laid down by their Lordships of the Supreme Court in the

matter of Sharad Birdhichand Sarda vs. State of Maharashtra 9, in

absence of which, the appellants are entitled to benefit of doubt.

Consequently, the impugned judgment of conviction and order of 9 (1984) 4 SCC 116 CRA-1186-2013

sentence dated 28.11.2013, passed by the learned trial Court in

convicting the appellants for offence under Section 302/34 of IPC is

not sustainable.

(26) Accordingly, the conviction of the appellants for offence

punishable under Section 302 read with Section 34 of IPC as well as

the sentence imposed upon them by the learned trial Court is hereby

set aside. They are acquitted of the said charges. Since the

appellants are already on bail, they need not surrender. However,

their bail bonds shall remain in force for a period of six months in view

of the provision contained in Section 437-A of CrPC.

(27) This criminal appeal is allowed to the extent indicated herein-

above.

                  Sd/-                                         Sd/-
           (Sanjay K. Agrawal)                       (Rakesh Mohan Pandey)
                 Judge                                       Judge
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