Brijbhan Singh vs State Of Chhattisgarh
2023 Latest Caselaw 2 Chatt

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                                                           NAFR
    HIGH COURT OF CHHATTISGARH AT BILASPUR
              Criminal Appeal No. 116 of 2015


1. Nanku Uraon S/o Udal Uraon, Aged about 40 years, R/o
  Village Cherhapara, P.S. Charcha, District Koriya, Civil
  and Revenue District Koriya, Chhattisgarh.

2. Gajanand S/o Kanhaiya Lal Panika, Aged about 35 years,
  R/o Village Shivpur, P.S. Charcha, District Koriya, Civil
  and Revenue District Koriya, Chhattisgarh.

                                               ---Appellants

                          Versus

  State of Chhattisgarh through Station House Officer,
  Police Station Charcha, District Koriya, Chhattisgarh.

                                               ---Respondent




  For Appellants   :-   Mr. Anil Gulati, Advocate
  For State        :-   Mr. Avinash Singh, P.L.




              Criminal Appeal No. 655 of 2013


  Brijbhan Singh S/o Late Gulab Singh Rajpoot, Aged about
  40 years, R/o Chehara Para P.S. Charcha, District Koriya,
  Chhattisgarh. Permanent Address: Ledari, Badi Dafai, P.S.
  Jhagarakhand, District Koriya, Chhattisgarh.

                                               ---Appellant

                          Versus

  State of Chhattisgarh through Police Station Charcha,
  District Koriya, Chhattisgarh.

                                               ---Respondent
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          For Appellant    :-     Dr. Kumaresh Tiwari, Advocate
          For State        :-     Mr. Avinash Singh, P.L.




               Hon'ble Shri Justice Sanjay K. Agrawal
             Hon'ble Shri Justice Rakesh Mohan Pandey
                        Judgment on Board
                            02/01/2023


Sanjay K. Agrawal, J.

1. Since common question of law and fact is involved in both

of these appeals and since both of them have arisen out of

the impugned judgment dated 22/25/2013 passed by

learned Special Judge, Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989, Koriya,

Baikunthpur in Special Sessions Trial No. 15/2009,

therefore, both of these appeals have been clubbed

together, heard together and are being decided by this

common judgment.

2. The two appellants namely Nanku Uraon (A-1) and

Gajanand (A-2) have preferred Criminal Appeal No.

116/2015 whereas the sole appellant namely Brijbhan

Singh (A-3) has preferred Criminal Appeal No. 655/2013

calling in question the legality, validity and correctness of

the impugned judgment by which they have been

convicted for offences punishable under Sections 302 read

with Section 34 of IPC and Section 201 of IPC and they

have been sentenced to undergo life imprisonment with

fine of Rs. 1000/- and in default of payment of fine,

additional R.I. for 6 months; and R.I. for 7 years with fine

of Rs. 1000/- and in default of payment of fine, additional

R.I. for 6 months, respectively.

3. Case of the prosecution, in brief, is that on 05/04/2008 at

about 9 PM at Shivpur (Kathoutiyapara) within the ambit

of Police Station Charcha, the appellants herein, in

furtherance of their common intention, assaulted

Heerasingh Gond and murdered him, knowing fully well

that he belonged to Scheduled Tribe and in order to screen

themselves from the offence, they threw his dead body on

railway line and they, thereby, committed the aforesaid

offences.

4. Further case of the prosecution is that on 05/04/2008 at

noon, deceased Heerasingh, son of complainant Patango

Bai (P.W.-13) left his house to go the house of his maternal

uncle Hariprasad, but did not return to his house in the

next two days upon which his mother and family members

thought that he must still be at his uncle's house. On

07/04/2008, Sohan (P.W.-5), brother of Patango Bai

(P.W.-13), informed her that deceased was in the company

of Nanku Uraon (A-1) and Brijbhan Singh (A-3) and on

05/04/2008, deceased consumed liqour at the house of

Gajanand along with the appellants/accused persons.

Thereafter, on 06/04/2008, information was received by

the Police from the Stationmaster that a dead body of

unknown person was lying on the railway line pursuant to

which merg intimation was registered vide Ex. P/14 and

panchnama proceeding was conducted vide Ex. P/4 and

the dead body was cremated. Pursuant thereof, a written

report was lodged by Patango Bai (P.W.-13) at the Police

Station regarding murder of her son Heerasingh

committed by the three appellants/accused persons and

she also identified the clothes of the deceased on the basis

of which first information report was lodged against them

vide Ex. P/27 for offences punishable under Sections

302,201/34 of IPC and Section 3(2)(v) of the Act of 1989.

Father of the deceased, Prahlad Singh (P.W.-15) moved an

application before the SDM and after his permission, the

dead body of deceased Heerasingh was exhumed, which

was identified by Patango Bai (P.W.-13). Pursuant thereof,

the dead body was subjected to postmortem which was

conducted by Dr. Rameshwar Sharma (P.W.-7) and as per

the postmortem report (Ex. P/8), cause of death is said to

be coma due to head injury. Memorandum statement of

appellant/accused Brijbhan Singh (A-3) was recorded vide

Ex. P/10 and pursuant thereof recovery of wooden club

was made at his instance vide Ex. P/11. After due

investigation, the three appellants/accused persons were

charge-sheeted for offences punishable under Sections

302/34 and 201 of IPC and Section 3(2)(v) of the Act of

1989 which was committed to the Court of Special Judge

for trial in accordance with law. The appellants/accused

persons abjured their guilt and entered into defence.

5. In order to bring home the offence, prosecution examined

as many as 26 witnesses and brought on record 45

documents. Statements of the appellants/accused persons

were taken under Section 313 of CrPC wherein they

denied guilt, however, they examined none in their defence

and exhibited three documents.

6. Learned Special Judge, after appreciating the oral and

documentary evidence on record, though acquitted the

three appellants/accused persons for offence punishable

under Section 3(2)(v) of the Act of 1989, however,

convicted them for offences punishable under Sections

302/34 and 201 of IPC and sentenced them as aforesaid.

7. Mr. Anil Gulati and Dr. Kumaresh Tiwari, learned counsel

for the appellants/accused persons, would submit that

the appellants/accused persons have been erroneously

convicted by the trial Court without there being any

evidence of prosecution proved beyond reasonable doubt.

The only evidence of last seen given by Kalawati (P.W.-16)

is not direct evidence rather it is hearsay evidence.

Moreover, though pursuant to the memorandum

statement of Brijbhan Singh (A-3), recovery of wooden club

has been made vide Ex. P/11, but it has not been sent for

FSL in order to prove whether it contained any human

blood, much less, any blood at all and thus, it would not

corroborate the evidence of last seen. As such, the

appellants/accused persons deserve to be acquitted of the

charges levelled against them.

8. Per contra, Mr. Avinash Singh, learned State counsel,

would submit that prosecution has been able to prove the

offence beyond reasonable doubt and as such, learned

Special Judge has rightly convicted the

appellants/accused persons for the aforesaid offences.

Therefore, both of the instant appeals deserve to be

dismissed.

9. We have heard learned counsel for the parties, considered

their rival submissions made herein-above and went

through the records with utmost circumspection.

10. The first question for consideration would be whether the

death of deceased Heerasingh was homicidal in nature ?

11. Learned Special Judge has recorded an affirmative finding

in this regard and held the death of deceased Heerasingh

to be homicidal in nature relying upon the postmortem

report (Ex. P/7) which has been proved by Dr. Rameshwar

Sharma (P.W.-7) wherein he has clearly stated that the

cause of death is coma due to head injury, however, he

has not opined as to whether the death of the deceased

was homicidal in nature or not. In his cross-examination,

he has stated that the death of the deceased could have

been caused by train accident, however, looking to the

description of the injury that the deceased had suffered in

his head as described in the postmortem report (Ex. P/7),

we are of the considered opinion that the trial Court has

rightly held the death of the deceased to be homicidal in

nature, more so, when it has not been seriously disputed

by learned counsel for the appellants. We hereby affirm

the finding recorded by the trial Court that the death of

deceased Heerasingh was homicidal in nature.

12. The next question for consideration would be whether the

trial Court has rightly convicted the appellants/accused

persons for offence punishable under Section 302 of IPC,

holding them to be the perpetrators of the crime in

question ?

13. The conviction of the appellants/accused persons is

mainly based upon the evidence of last seen together given

by Kalawati (P.W.-16).

14. 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 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 In the matter of Arjun Marik v. State of

Bihar2, it has been held by their Lordships of the

Supreme Court have held that conviction cannot be

1 (1991) 3 SCC 27 2 1994 Supp (2) SCC 372

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

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 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 3 (2007) 3 SCC 755

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

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

4 (2014) 4 SCC 715

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 Rajasthan5.

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 absence of satisfactory explanation, cannot

be made basis of conviction.

5 (2010) 15 SCC 588 6 (2017) 14 SCC 359

19. Finally in the matter of Navneethakrishnan v. State by

Inspector of Police7, 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 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."

20. In the matter of State of Goa v. Sanjay Thakran and

another8, 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. In the instant case, as per the statement of Kalawati

(P.W.-16), deceased Heerasingh was last seen with

7 (2018) 16 SCC 161 8 (2007) 3 SCC 755

Nanku (A-1) on 05/04/2008 at 4 PM whereas the dead

body of the deceased was recovered on 06/04/2008 at

10:30 PM and thereafter, merg intimation was registered

vide Ex. P/14 and the body was cremated holding it to

be the body of an unknown person. As such, there is a

considerable time gap between the time when the

deceased was last seen with Nanku (A-1) and the time

when his dead body was recovered. Furthermore, as per

the statement of Kalawati (P.W.-16), on 05/04/2008,

when the deceased had come to her house, only Nanku

(A-1) came and called him and deceased Heerasingh left

the house with him and after two days, a village boy

named Babua informed Kalawati (P.W.-16) that

someone has killed Heerasingh and left his body on the

Shivpur railway line. She has further stated that

thereafter, she went to the said railway line along with

her husband Hariprasad but did not find the body of the

deceased and then she went to the house of the

deceased and informed his mother Patango Bai (P.W.-

13) that on 05/04/2008, Nanku (A-1) had come to her

house to call the deceased and he left with him at 4 PM

and thereafter, she did not know anything about the

deceased. Pursuant to that, she visited the house of

Gajanand (A-2)) wherein his wife informed her that

deceased was at their house and he was drinking

alcohol along with Gajanand (A-2), Nanku (A-1) and

Brijbhan (A-3) and some dispute arose between them

and thereafter, she did not know where all the four of

them went. As such, though Kalawati (P.W.-16) has

proved that deceased was last seen with Nanku (A-1)

but there is a considerable time gap between last seen

together and the time when the dead body of the

deceased was recovered, which is more than 12 hours.

Therefore, it cannot be held that only appellant/accused

Nanku (A-1) is the perpetrator of the offence and

moreover, Kalawati (P.W.-13) has stated that wife of

Gajanand (A-2) told her that deceased was last seen

with Nanku (A-1), Gajanand (A-2) and Brijbhan (A-3),

however, wife of Gajanand has not been examined

before the Court for the reasons best known to

prosecution. As such, we are of the considered opinion

that prosecution has failed to prove the circumstance of

last seen together beyond reasonable doubt and on that

basis, it cannot be held that appellants/accused

persons are the perpetrators of the crime in question.

22. It is also the case of the prosecution that pursuant to

memorandum statement of Brijbhan Singh (A-3)

recorded vide Ex. P/10, recovery of wooden club has

been made at his instance vide Ex. P/11, which

corroborates the evidence of last seen together.

However, though the recovery of wooden club was made

from Brijbhan Singh (A-3), but the said wooden club

has not been sent for FSL to prove that it was stained

with human blood and to prove that it was used by the

appellants/accused persons in commission of the crime

in question. As such, there is no other corroborating

evidence available on record to connect the

appellants/accused persons with the crime in question

and therefore, it cannot be held that appellants/accused

persons are the perpetrators of the crime in question.

23. Reverting to the facts of the case in light of the aforesaid

legal position, it is quite vivid that prosecution has only

been able to establish that deceased Heerasingh was

last seen with Nanku (A-1) and except that, no other

incriminating links have been satisfactorily made out

and no other incriminating circumstance which leads to

the hypothesis of guilt against the appellants/accused

persons has been proved. As such, in absence of proof

of other circumstances or chain of circumstances, only

the theory of last seen together cannot be made sole

basis for conviction of the appellants/accused persons

as it would be unsafe to rest conviction only on the

theory of last seen together. Therefore, we are of the

considered opinion that learned Special Judge is

absolutely unjustified in convicting the

appellants/accused persons for offences punishable

under Sections 302/34 and 201 of IPC. We hereby set

aside the conviction so recorded and the sentences so

awarded by the Special Judge to the appellants/accused

persons vide the judgment impugned. The

appellants/accused persons are acquitted of the

charges levelled against them and since they are already

on bail, they need not surrender, however, their bail

bonds shall remain in operation for a period of six

months in view of the provision contained under Section

437A of CrPC.

24. Accordingly, both of these criminal appeals stand

allowed.

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




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