Champat Bareth vs State Of Chhattisgarh
2023 Latest Caselaw 514 Chatt

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                                                                NAFR
         HIGH COURT OF CHHATTISGARH AT BILASPUR
                    Criminal Appeal No. 382 of 2014


     Champat Bareth, S/o. Parasram Bareth, Aged About 21 Years,
     R/o. Village Kapisda (B), Police Station- Sarangarh, Civil And
     Revenue Distt. Raigarh, Chhattisgarh
                                                       ---Appellants
                               Versus

     State Of Chhattisgarh, Through Police Station- Sarangarh, Distt.
     Raigarh, Chhattisgarh

                                                     ---Respondent


For Appellant         :-     Mr. Krishna Tandon, Advocate
For State-Respondent :-      Mr. Avinash Singh, Panel Lawyer


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

                       Judgment on Board
                          (25.01.2023)

     Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellant under Section

374(2) of Cr.P.C. is directed against the impugned judgment

dated 19.02.2014 passed by learned Additional Sessions Judge,

Sarangarh, District Raigarh, in Sessions Trial No.01/2013, by

which the appellant herein has been convicted for the offence

under Section 302 of Indian Penal Code and sentenced to life

imprisonment with fine of Rs.2000/- and in default of payment of

fine amount, six months further imprisonment.

2. Case of the prosecution, in short, is that on 20.11.2012, in the

evening 5:15 p.m. at village Kapisda, the appellant took the

daughter of the complainant near Lat Nala and thrown her into

deep water, by which she died by drowning and thereby

committed the offence. Further case of the prosecution is that

the appellant used to work as labourer in the house of the

complainant and also involved in his agricultural operation in his

field and used to take care of her minor daughter Ku. Roshni,

aged about 1 ½ years. Further case of the prosecution is that on

the fateful day, Kanhaiya Lal Verma (PW-3) paid only Rs.50/- to

the appellant as wages on account of which, the appellant was

unhappy and took his minor daughter Roshni to nearby nala/

deep water and thrown her to the said deep water, by which,

she died by drowning due to asphyxia and thereby committed

the offence. Smt. Kaushalya Yadav (PW-2) and Tilkaram Verma

(PW-15), grand-father of the deceased, have seen the appellant

taking the deceased along with him on 20.11.2012 at 4:00 p.m.

and dead body was recovered on 21.11.2012 at 3:00 a.m. in the

morning. Thereafter, the villagers along-with Chovan Prasad

Tiwari (PW-1) and Kanhaiya Lal Verma (PW-3) enquired the

matter from the appellant and he admitted his guilt, pursuant to

which the merg intimation (Ex.P-1) and FIR (Ex.P-2) was

registered and after panchnama, the dead body was subjected

to post-mortem, which was conducted by Dr. Amrit Rohledar

(PW-7), who proved the post-mortem report vide Ex.P-7, in

which cause of death was stated to be asphyxia due to

drowning. After due investigation, the appellant was charge-

sheeted for the aforesaid offence, which was ultimately

committed to the Court of Sessions for trial in accordance with

law, in which the accused person abjured his guilt and entered

into defence stating that he has not committed any offence.

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

many as 16 witnesses and exhibited 21 documents and the

appellant-accused in support of his defence has exhibited only

one document i.e. Ex.D-1.

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

evidence on record, convicted the appellant herein for the

offence as mentioned in the opening paragraph of the judgment,

against which the present appeal has been preferred.

5. Mr. Krishna Tandon, learned counsel for the appellant, submits

that the extra judicial confession made to Kanhaiya Lal Verma

(PW-3) and Tilakram Verma (PW-15) are not voluntarily and is a

weak piece of evidence and furthermore, on the basis of

evidence of last seen together by Kaushalya Yadav (PW-2) and

Tilakram Yadav (PW-15), conviction could not have been

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

legally admissible evidence against the appellant to convict the

appellant, therefore, his conviction is liable to be set aside.

6. Mr. Avinash Singh, learned State counsel submits that the

evidence of Kaushalya Yadav (PW-2) and Tilakram Verma (PW-

15) about last seen of the appellant and deceased together

coupled with the extra judicial confession to Kanhaiya Lal Verma

(PW-3), Dayaprasad Verma, (PW-5) and Tilakram Verma, (PW-

15) are admissible in evidence, as such, conviction is well

merited and appeal deserves to be dismissed.

7. We have heard learned counsel for the parties, considered their

rival submissions made herein-above and went through the

records with utmost circumspection.

8. In the instant case, there is no direct evidence and case is

based on circumstantial evidence. The Supreme Court in the

matter of Sharad Birdichand Sarda v. State of Maharashtra 1

laid down the five golden principles to constitute the panchsheel of

the proof of a case based on circumstantial evidence, which states

as under :

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra2 where the following observations were made:

1 AIR 1984 SC 1622 2(1973) 2 SCC 793

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

9. Now, we will consider the circumstantial evidence as projected

by the prosecution and found proved by the trial Court.

10. The appellant is said to have given extra judicial confession to

Kanhaiya Lal Verma (PW-3), Dayaprasad Verma, (PW-5) and

Tilakram Verma, (PW-15). Bare perusal of their statements

would show that the extra judicial confession is not true and

voluntarily. Kanhaiya Lal Verma (PW-3) in his statement in para

5 has clearly stated that 100 villagers assembled in the place

and they forcibly enquired from the appellant then he admitted

the guilt. Similar statement has also been made by Dayaprasad

Verma (PW-5) and Tilakram Verma (PW-15). As such, the

Supreme Court in the matter of Subramanya v. State of

Karnataka3 has laid down the principles when extra judicial

confession is admissible in evidence and held that the extra

judicial confession is weak piece of evidence and requires

corroboration :

54. Extra judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. It is considered to be a weak piece of evidence as it can be easily procured whenever direct evidence is not available. In order to accept extra judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra judicial confession is voluntary, it can be acted upon to base the conviction.

55. Considering the admissibility and evidentiary value of extra judicial confession, after referring to various judgments, in Sahadevan and Another v. State of Tamil Nadu, (2012) 6 SCC 403, this Court held as under:

"15.1. In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259 : 1996 SCC (Cri) 59] this Court stated the principle that: (SCC p. 265, para 10) "10. An extrajudicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance."

xxxx 15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extrajudicial confession, this Court in State of Rajasthan v. Raja Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965] stated the principle that: (SCC p. 192, para 19) "19. An extrajudicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value 3 AIR 2022 SC 5110

of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made."

The Court further expressed the view that: (SCC p. 192, para 19) "19. ... Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused...."

xxxx 15.6. Accepting the admissibility of the extra- judicial confession, the Court in Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604 : (2011) 1 SCC (Cri) 79] held that: (SCC p. 611, paras 29-

30) "29. There is no absolute rule that an extra- judicial confession can never be the basis of a conviction, although ordinarily an extrajudicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore[(1970) 2 SCC 105 : 1970 SCC (Cri) 320] , Mulk Raj v. State of U.P. [AIR 1959 SC 902 : 1959 Cri LJ 1219] , Sivakumar v. State [(2006) 1 SCC 714 : (2006) 1 SCC (Cri) 470] (SCC paras 40 and 41 : AIR paras 41 and

42), Shiva Karam Payaswami Tewari v. State of Maharashtra [(2009) 11 SCC 262 : (2009) 3 SCC (Cri) 1320] and Mohd. Azad v. State of W.B.[(2008) 15 SCC 449 : (2009) 3 SCC (Cri) 1082] ]""

[Emphasis supplied]

56. It is well settled that conviction can be based on a voluntarily confession but the rule of prudence requires that wherever possible it should be corroborated by independent evidence. Extra judicial confession of accused need not in all cases be corroborated. In Madan Gopal Kakkad v. Naval Dubey and Another, (1992) 3 SCC 204, this Court after referring to Piara Singh and Others v. State of Punjab, (1977) 4 SCC 452, held that the law does not require that the evidence of an extra judicial confession should in all cases be corroborated. The rule of prudence does not require that each and

every circumstance mentioned in the confession must be separately and independently corroborated.

57. The sum and substance of the aforesaid is that an extra judicial confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance like the case in hand. The Courts generally look for an independent reliable corroboration before placing any reliance upon an extra judicial confession.

11. Reverting to the facts of this case in light of the aforesaid

principles laid down, since the extra judicial confession given to

Kanhaiya Lal Verma (PW-3), Dayaprasad Verma, (PW-5) and

Tilakram Verma, (PW-15) are not true and voluntarily, which has

been confessed by the appellant on being pressurized by the

villagers, therefore, it is not a valid piece of evidence and it is

not accepted as one of the incriminating circumstances against

the appellant herein. It is held so accordingly.

12. The next circumstance that has been found proved by the trial

Court is that appellant has been seen along with the deceased

lastly on 20.12.2012 at 4:00 p.m. by Kaushalya Yadav (PW-2)

and Tilakram Verma (PW-15) and thereafter, dead body of the

deceased was recovered on 21.12.2012 at 3:00 am as per the

merg intimation (Ex.P-1), which has been relied upon by the trial

Court as one of the basis for conviction.

13. 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?

14. In the matter of Jaharlal Das v. State of Orissa 4, 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 Bihar5, 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."

16. Likewise, in the matter of State of Goa v. Sanjay Thakran 6, the

Supreme Court has held that the circumstance of last seen

together would be a relevant circumstance in a case where

4 (1991) 3 SCC 27 5 1994 Supp (2) SCC 372 6(2007) 3 SCC 755

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 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 Rajasthan 7,

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 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.

7(2014) 4 SCC 715

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 Assam8, 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

Police9, 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 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 8(2017) 14 SCC 359 9(2018) 16 SCC 161

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 10,

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

of Uttarakhand11 relying upon its earlier decision in Rambraksh

10(2007) 3 SCC 755 11 (2023) Live Law (SC) 41

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 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."

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

present case, the appellant and deceased were last seen

together by Kaushalya Yadav (PW-2) and Tilakram Verma (PW-

15) Rampyari on 20.11.2012 at 4:00 p.m., whereas the dead

body of the deceased was recovered on 21.11.2012 in the early

morning at 3:00 a.m., as such, there is a considerable time gap

of 11 hours between last seen together and time when the dead

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

said that it is only the appellant who has caused murder of the

deceased and he is the author of the crime. Particularly there is

no corroboration at all and in absence of corroboration, it cannot

be held that the appellant is author of the crime only on the

basis of last seen evidence, even if it has been proved.

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

conviction and sentence awarded to the appellant herein for the

offence under Section 302 of I.P.C. Accordingly, the conviction

and sentence is set aside, he is acquitted of the charge under

Section 302 of I.P.C. The appellant be released from jail

forthwith, if not required in any other case.

24. Accordingly, the criminal appeal is allowed to the above-extent.

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