Sundar Ram Rathiya And Anr vs State Of Chhattisgarh
2023 Latest Caselaw 365 Chatt

                                  1



                                                               NAFR
         HIGH COURT OF CHHATTISGARH AT BILASPUR
                   Criminal Appeal No. 1104 of 2013


1.   Sundar Ram Rathiya, S/o. Shri Ghasiya @ Thagwa Rathiya,
     Aged About 30 Years, Occupation- Agriculturist Labour.

2.   Hulasram Kumhar, S/o. Tikaram Kumhar, Aged About 30 Years,
     Occupation- Agriculturist Labour.

     Both are R/o. Village Barbhouna, Police Station- Chhal, Tahsil
     Dharamjaigarh, Civil & Revenue Distt. Raigarh, Chhattisgarh
                                                      ---Appellants
                               Versus

     State Of Chhattisgarh, Through Station House Officer, Police
     Station Chhal, Distt. Raigarh, Chhattisgarh

                                                     ---Respondent


For Appellants          :-   Mr. Prahalad Panda, Advocate
For State-Respondent :-      Mr. Soumya Rai, Panel Lawyer


             Hon'ble Shri Justice Sanjay K. Agrawal
            Hon'ble Shri Justice Radhakishan Agrawal

                         Judgment on Board
                            (18.01.2023)

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 22.10.2013 passed by learned Sessions Judge, Raigarh,

in Sessions Trial No.115/2013, by which the appellant herein

has been convicted for the offence under Section 302 read with

Section 34 and Section 201 read with Section 34 of Indian Penal

Code and sentenced as under :

Conviction Sentence Sec. 302/34 of I.P.C. : Life imprisonment with fine of Rs.5000/- and in default of payment of fine, further R.I. for 2 years.

Sec. 201/34 of I.P.C. : Rigorous imprisonment for 3 years with fine of Rs.2000/- and in default of payment of fine, further imprisonment for 6 months.

2. Case of the prosecution, in short, is that in the intervening night

of 09.03.2013 and 10.03.2013 and from 9:30 P.M. to 6:00 A.M.

at village Barbhouna P.S. Chhal, District Raigarh, the appellants

assaulted the deceased Chhabiram Rathiya by axe and thereby

committed his murder and thereafter, they poured kerosene oil

on his body and then burnt dead body; thereby, the aforesaid

offence has been committed.

3. It is the further case of the prosecution that the appellant No.1

Sundar Ram Rathiya had kept the legally wedded wife of the

deceased Chhabiram namely Jaharo Bai as prior to 3-4 days of

the date of incident, Jaharo Bai left the company of Sundar Ram

(A-1) which he suspected to have been abducted by deceased

on account of which, the appellants in furtherance of common

intention caused the death of deceased by spade and burnt the

dead body by pouring kerosene oil and thereby, they committed

the offence. Rampyari Rathiya (PW-1), Buwa of the deceased

made missing report to the Police Station Chhal, pursuant to

which the dead body of the deceased was traced in Barbhauna

forest canal. Dehati Merg Intimation Ex. P-12 and Ex.P-13 was

registered and panchanama was prepared by Ex.P-2 and on the

recommendation of the panchas, the dead body was sent for

post-mortem vide Ex.P-14 and the post-mortem was conducted

by Dr. S.S.Bhagat (PW-4) who proved the post-mortem report

by Ex.P-24. According to the post-mortem report, the cause of

death was excessive bleeding and death was homicidal in

nature. Pursuant to the memorandum statement of the appellant

No.1, the bloodstained axe was seized and also spade was

seized vide Ex.P-7 and clothes were seized vide Ex.P-8 and all

were sent to FSL. The shirt was also seized by Exs.P-10 & P-11,

which were also sent to FSL, but FSL report was not brought on

record. After usual investigation, the appellants were charge-

sheeted for the aforesaid offences, which was ultimately

committed to the Court of Sessions for trial in accordance with

law, in which the accused persons abjured their guilt and

entered into defence and stating that they have not committed

any offence.

4. In order to bring home the offence, prosecution examined as

many as 04 witnesses and exhibited 25 documents and the

appellant-accused in support of his defence has neither

examined any witness nor exhibited any document.

5. The trial Court, after appreciation of oral and documentary

evidence on record, convicted the appellants herein for the

offence as mentioned in the opening paragraph of the judgment,

against which the present appeal has been preferred.

6. Mr. Prahalad Panda, learned counsel for the appellants submits

that appellant No.2 has been convicted only on the basis of

evidence of last seen by Rampyari Rathiya (PW-1), but merely

on the basis of said evidence, the appellant cannot be

convicted. He further submits that as against the appellant No.1,

the evidence is of recovery of an axe, rapa, half shirt and lungi,

on the basis of his disclosure statement, but there is no FSL

report. He also submits that considering the nature of evidence,

the conviction of the appellants is liable to be set aside and the

appeal deserves to be allowed.

7. Mr. Soumya Rai, learned State counsel submits that on the

basis of evidence of last seen together by Rampyari Rathya

(PW-1) and evidence of Vedram Dansena (PW-2) and pursuant

to the recovery made from the appellant No.1 i.e. blood-stained

axe, they have rightly been convicted, as such, 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 for consideration whether the death of

deceased Chhabiram Rathiya was homicidal in nature has been

answered by the trial Court in affirmative, holding the death of

the deceased to be homicidal in nature on the basis of

statement of Dr. S.S.Bhagat (PW-4) who has proved the post-

mortem report Ex.P-24. In our considered opinion, such finding

is finding of fact based on evidence available on record, which is

neither perverse nor contrary to the facts on record and

therefore, we hereby affirm the said finding.

10. Now the appellant No.1 has been convicted on the basis of

recovery of blood-stained axe, which has been recovered

pursuant to his memorandum statement vide Ex.P-6 & P-7,

which was sent to Dr. S.S.Bhagat (PW-4) inviting his opinion

and according to the query report, it has been held that incised

wound suffered by Chhabiram may be possible by sharp edged

weapon i.e. tangi seized from the possession of the appellant

No.1. The axe was sent for FSL to find out whether the blood-

stain was human blood or not vide memo Ex.P-22, but the FSL

report has not brought on record; as such, it could not be

established that axe was stained with blood and that too human

blood.

11. In case of Balwan Singh v. State of Chhattisgarh & Anr. 1 the

Supreme Court has held that if the recovery of bloodstained

articles is proved beyond reasonable doubt by the prosecution,

then it may be sufficient if the prosecution shows that the blood

found on the articles is of human origin, even though the blood

group is not proved and held as under :-

"24. In the instant case, then, we could have placed some reliance on the recovery, had the 1 (2019) 7 SCC 781

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."

12. In the instant case also, though the recovery of axe has been

proved by (PW-2) namely Vedram, but the blood much-less

human blood has not proved on the said axe. Therefore, the

recovery, if any, from the appellant is of no use to the

prosecution and there is no other incriminating evidence brought

on record against the appellant No.1 except the motive that he

has kept the wife of the deceased Chhabiram namely Jaharo

Bai, who had left the company of the appellant No.1, prior to 2-3

days of the incident, and except the self serving statement of

Rampyari (PW-1), there is no other evidence to this effect,

particularly motive is a weak piece of evidence and conviction

cannot be made on establishing the motive, as such, there is no

evidence against the appellant No.1 for convicting him for the

offence under Section 302 read with Section 34 & Section 201

read with Section 34 of I.P.C.

13. The appellant No.2 has been convicted on the sole basis that he

was last seen together with the deceased Chhabiram. As per

the statement of Rampyari (PW-1), Buwa of the deceased, it is

the appellant No.2 who came to the house of Rampyari on

09.03.2013 and taken the deceased alongwith him at 7 to 8 P.M.

and thereafter his dead body was recovered on 11.03.2013 at

6:30 P.M. as per merg intimation vide Ex.P-20.

14. 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?

15. In the matter of Jaharlal Das v. State of Orissa 2, 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.

16. In the matter of Arjun Marik v. State of Bihar3, 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

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

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."

17. Likewise, in the matter of State of Goa v. Sanjay Thakran 4, 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 4(2007) 3 SCC 755

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. "

18. Similarly, in the matter of Kanhaiya Lal v. State of Rajasthan 5,

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 :-

5(2014) 4 SCC 715

"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."

19. 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.

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

Police7, the Supreme Court has held that though the evidence

6(2017) 14 SCC 359 7(2018) 16 SCC 161

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 beyond reasonable doubt and requires corroboration."

21. 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

8(2007) 3 SCC 755

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.

22. In a very recent decision, in case of Jabir & Ors. v. The State

of Uttarakhand9 relying upon his earlier decision in Rambraksh

v. State of Chhattisgarh {2016 (12) SCC 251} in para 22 to 24, it

is held as under :

"23. This court is also of the opinion that apart from the above serious infirmities, there is no evidence, oral or any material object, which connects the appellant-accused with the crime. It has been repeatedly emphasized by this court, that the "last seen" doctrine has limited application, where the time lag between the time the deceased was seen last with the accused, and the time of murder, is narrow; furthermore, the court should not convict an accused only on the basis of the "last seen" circumstance. In Jaswant Gir vs. State of Punjab {2005 (12) SCC 438} this court explained the soundness of such a rule:

"Without probing further into the correctness of the "last-seen" version emanating from P.W.

14's evidence, even assuming that the deceased did accompany the accused in their vehicle, this circumstance by itself does not lead to the irresistible conclusion that the Appellant and his companion had killed him and thrown the dead body in the culvert. It cannot be presumed that the Appellant and his companions were responsible for the murder, though grave suspicion arises against the 9 (2023) Live Law (SC) 41

accused. There is considerable time-gap between the deceased boarding the vehicle of the Appellant and the time when P.W. 11 found the dead body. In the absence of any other links in the chain of circumstantial evidence it is not possible to convict the Appellant solely on the basis of the "last-seen" evidence, even if the version of P.W. 14 in this regard is believed. In view of this, the evidence of P.W. 9 as regards the alleged confession made to him by the Appellant assumes importance.

25. In the present case, save the "last seen" theory, there is no other circumstance or evidence. Importantly, the time gap between when the deceased was seen in the company of the accused on 09-10- 1999 and the probable time of his death, based on the post mortem report, which was conducted two days later, but was silent about the probable time of death, though it stated that death occurred approximately two days before the post mortem, is not narrow. Given this fact, and the serious inconsistencies in the depositions of the witnesses, as well as the fact that the FIR was lodged almost 6 weeks after the incident, the sole reliance on the "last seen" circumstance (even if it were to be assumed to have been proved) to convict the accused-appellants is not justified."

23. Reverting to the facts of this case, it is quite vivid that in the

present case, the appellant No.2 and deceased were last seen

together by Rampyari (PW-1) on 09.03.2013 at 7:00- 8:00 P.M.

whereas the dead body of the deceased was recovered on

11.03.2013 at 6:30 P.M., as such there is a considerable time

gap between the last seen together and the time where the

dead body of the deceased was recovered. Therefore, it cannot

be held that the appellant No.2 is the author of the crime,

particularly there is no corroboration, and as such in absence of

corroboration, it cannot be held that the appellant No.2 is author

of the crime only on the basis of last seen circumstance, even if

it is to be assumed to have been proved.

24. Reverting to the facts of the present case in light of the aforesaid

decisions rendered by the Supreme Court particularly, in Anjan

Kumar Sarma & Jabir (supra), it is quite vivid that the

prosecution has only established that the appellant No.2 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

appellants has been proved. 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 No.2 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 No.2 under

Section 302 read with Section 34 and Section 201 read with

Section 34 of I.P.C. only on the basis of the theory of 'last seen

together' on the part of the appellant No.2 and in absence of

other incriminating material against the appellant No.2 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), Kanhaiya Lal & Jabir (supra).

25. In view of the aforesaid discussion, we are unable to sustain the

conviction and sentence awarded to the appellants herein for

the offence under Section 302 read with Section 34 and Section

201 read with Section 34 of I.P.C. Accordingly, the conviction

and sentence is set aside, they are acquitted of the charges

under Section 302 read with Section 34 and Section 201 read

with Section 34 of I.P.C. The appellants are on bail, they need

not surrender; however, their bail bonds shall remain in

operation for a period of 6 months in view of the provisions

contained in Section 437-A of Cr.P.C.

26. Accordingly, the criminal appeal is allowed.

                        Sd/-                             Sd/-
                 (Sanjay K. Agrawal)               (Radhakishan Agrawal)
                      Judge                              Judge
Aks