Page No.1 of 14 IN CRA-1544-2015 CGHC010020842015 2026:CGHC:29866-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1544 of 2015 [Arising out of judgment dated 18.11.2015, passed in Sessions Trial No.66/2014 (State of Chhattisgarh v. Narsingh Yadav and another) by the Sessions Judge, Balodabazar (CG)] 1 - Narsingh Yadav @ Shera, S/o Santru Yadav, aged about 27 years, R/o Village Chherkapur, Police Station Palari, Civil and Rev. District Balodabazar-Bhatapara (Chhattisgarh) 2 - Topbai Aadil, W/o Sumer Singh Aadil, aged about 35 years, R/o Village Chherkapur, Police Station Palari, Civil and Rev. District Balodabazar-Bhatapara (Chhattisgarh) ... Appellants On Bail Versus State of Chhattisgarh, through S.H.O. Palari, Police Station Palari, Civil and Rev. District Balodabazar-Bhatapara (Chhattisgarh) ... Respondent [Cause-title taken from Case Information System (CIS)] ----------------------------------------------------------------------------------------------- For Appellant : Mr. Kabeer Kalwani, Advocate on behalf of Mr. Viabhav A. Goverdhan, Advocate For Respondent : Mr. HAPS Bhatia, Panel Lawyer ----------------------------------------------------------------------------------------------- Division Bench Hon'ble Mr. Justice Sanjay K. Agrawal, and Hon'ble Mr. Justice Sanjay Kumar Jaiswal Judgment on Board (15.07.2026) Sanjay K. Agrawal, J (1) Invoking criminal appellate jurisdiction of this Court, two SAIFAN KHAN Digitally signed by SAIFAN KHAN Page No.2 of 14 IN CRA-1544-2015 appellants herein have preferred this criminal appeal under Section 374(2) of Cr.P.C., calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 18.11.2015, passed in Sessions Trial No.66/2014 (State of Chhattisgarh v. Narsingh Yadav and another) by the Sessions Judge, Balodabazar (CG), whereby they has been convicted and sentenced as under: As regards appellant- Narsingh Yadav (A-1): Conviction Sentence U/s. 302 r/w 120-B of IPC Imprisonment for life with fine of Rs.100/- and, in default of payment of fine, additional simple imprisonment for 03 months. U/s. 201 of IPC Rigorous imprisonment for 07 years with fine of Rs.100/- and, in default of payment of fine, additional simple imprisonment for 03 months. [Both the sentences are directed to run concurrently] As regards appellant- Topbai Aadil (A-2): Conviction Sentence U/s. 120-B of IPC Imprisonment for life with fine of Rs.100/- and, in default of payment of fine, additional simple imprisonment for 03 months. (2) The case of the prosecution, in short, is that appellant- Topbai (A-2) is wife of Sumer Singh Aadil and since appellant- Topbai (A-2) was having illicit relationship with appellant- Narsingh Yadav (A-1), they both conspired with each other and committed murder of Sumer Singh Aadil (hereinafter referred to as the “deceased”), whose Page No.3 of 14 IN CRA-1544-2015 dead-body was found on 27.07.2014 at about 07:30 AM lying in Korsi Nala of Village Magarchaba and, thereby, the appellants are said to have committed the aforesaid offences. (3) It is further case of the prosecution that when Munindra Das (PW-06) reported the matter to the police that a dead-body of unknown person is found lying in the Korsi Nala, merg intimation (Ex.P/04) was registered and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/05 and inquest proceedings were conducted vide Ex.P/06. Spot map was prepared vide Ex.P/08. Identification panchnama of the dead-body of the deceased was also prepared vide Ex.P/07. The dead-body of the deceased was sent for postmortem examination, which was conducted by Dr. Abhijit Banerjee (not examined) and, as per PM report (Ex.P/20), cause of death of the deceased is opined to be strangulation leading to asphyxia and cardio-respiratory arrest. The appellants-accused were arrested vide Ex.P/01 & Ex.P/14 and their memorandum statements were recorded vide Ex.P/09 & Ex.P/10. Pursuant to the memorandum statement of the appellants, mobile phones were seized vide Ex.P/12 & Ex.P/13. After statements of witnesses were recorded and due investigation, the police filed charge-sheet against the appellant in the competent criminal court having jurisdiction and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into Page No.4 of 14 IN CRA-1544-2015 defence by stating that he is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 13 witnesses and exhibited 20 documents, whereas the appellant- accused in support of their defence though not examined any witness but exhibited 05 document. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict appellant- Narsingh Yadav for offence under Section 302 r/w 120-B & 201 of IPC and appellant- Topbai for offence under Section 120-B 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. Kabeer Kalwani, learned counsel appearing for the appellants submits that the learned trial Court is unjustified in convicting the appellants for the aforesaid offences, as the prosecution has failed to prove the same beyond reasonable doubt. The appellants have been convicted on the basis of theory of last seen together by Lokeshwar (PW-05), however, the same has not been proved. Even, the motive of the offence is also not established and same is also a weak piece of evidence. Hence, the present appeal deserves to be allowed and the appellant is liable to be acquitted of Page No.5 of 14 IN CRA-1544-2015 the said charges on the basis of benefit of doubt. (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. In view of the statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellants for offence in question. Thus, 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/20), wherein it has been opined that cause of death of the deceased is strangulation leading to asphyxia and cardio-respiratory arrest, which is duly proved by the statement of Dr. Pramod Kuamr Tiwari (PW-13), who has been examined on behalf of the doctor who has conducted postmortem of the dead-body of the deceased, namely, Dr. Abhijit Banerjee. Accordingly, taking into consideration the postmortem report (Ex.P/20) and the statement of Dr. Pramod Kuamr Tiwari (PW-13), we are of the Page No.6 of 14 IN CRA-1544-2015 considered opinion that the death of the 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. We hereby affirm the said finding. (10) Now, the next question for consideration would be whether the appellants herein are authors of the crime or not, which the learned trial Court has answered in affirmative by relying upon following two circumstances: “(i) theory of last seen together on basis testimony of Lokeshwar (PW-05); and (ii) motive of the offence.” (11) We shall now consider the above circumstances one by one in light of the evidence available on record, in order to ascertain whether the appellants herein have rightly been held guilty for offence in question by the learned trial Court or not. Theory of last seen together: (12) In the case at hand, the date of offence is 25.07.2014 at about 07 PM and the dead-body of the deceased was found lying in Khorsi Nala on 27.07.2014 at about 07:30 AM and it is the case of the prosecution that appellant- Narsingh Yadav (A-1) was lastly seen with the deceased by Lokeshwar (PW-05) on 25.07.2014 at about 8- 8:30 AM and thereafter the deceased went missing and his dead- body was found on 27.07.2014 at about 07:30 AM. Page No.7 of 14 IN CRA-1544-2015 (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 Bihar2, it has been held by their Lordships of the Supreme Court that conviction cannot be made solely on the basis of theory of 'last seen together' and observed in paragraph 31 as under :- “31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount tothough a number of witnesses have been examined be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.” (15) Likewise, in the matter of State of Goa v. Sanjay Thakran3, the Supreme Court has held that the circumstance of last seen together 1 (1991) 3 SCC 27 2 1994 Supp (2) SCC 372 3 (2007) 3 SCC 755 Page No.8 of 14 IN CRA-1544-2015 would be a relevant circumstance in a case where there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was observed in paragraph 34 as under :- “34. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the 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 Page No.9 of 14 IN CRA-1544-2015 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 Rajasthan4, their Lordships of the Supreme Court have clearly held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime and there must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant in our considered opinion, by itself cannot lead to proof of guilt against the appellant. It has been held in paragraphs 15 and 16 as under :- “15. The theory of last seen – the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was 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 4 (2014) 4 SCC 715 Page No.10 of 14 IN CRA-1544-2015 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 Assam5, their Lordships of the Supreme Court have clearly held that in a case where other links have been satisfactorily made out and circumstances point to guilt of accused, circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In absence of proof of other circumstances the only circumstance of last seen together and absence of satisfactory explanation, cannot be made basis of conviction. (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, 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 5 (2017) 14 SCC 359 6 (2018) 16 SCC 161 Page No.11 of 14 IN CRA-1544-2015 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) Recently, the Supreme Court in the matter of Padman Bibhar v. State of Ordisha 7 has held as under: “22. In the case at hand also the only evidence against the appellant is of ‘last seen together’. The evidence of motive does not satisfy us to be an adverse circumstance against the appellant inasmuch as if the appellant has any doubt about his wife’s chastity, he would have caused injury or harm to his wife rather than to wife’s cousin with whom he had no animosity. Moreover, the so-called weapon of the offence i.e. the stone has not been recovered at his instance nor there is any memorandum statement of the appellant. 23. On the basis of above discussion, we are of the opinion that the nature of circumstantial evidence available against the appellant though raises doubt that he may have committed murder but the same is not so conclusive that he can be convicted only on the basis of evidence on ‘last seen together’.” 7 2025 SCC Online SC 1190 Page No.12 of 14 IN CRA-1544-2015 (20) Reverting to the facts of the present case in light of the aforesaid decisions rendered by the Supreme Court, it is quite vivid that the prosecution has only established that appellant- Narsingh (A-1) was lastly 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 appellant has been proved. Witness to the story of last seen together i.e. Lokeshwar (PW-05) has also not specifically stated that he has seen appellant Narsingh (A-1) committing murder of the deceased, indeed, in Para-01 he has only stated that at about 08-8:30 Am on the date of incident, appellant- Narsingh and the deceased visited his Pan Shop and thereafter where they have gone he has no knowledge about it. Furthermore, according to the PM report (Ex.P/20) of the deceased, though cause of death has been opined to be strangulation but no bodily injuries were found on the dead-body of the deceased and it is not clear whether appellant- Narsingh (A-1) has strangulated the neck of the deceased or some other person has committed the same and, consequently, it cannot be said that appellant Narsingh (A-1) has committed murder of the deceased. Accordingly, in view of aforementioned reasons, the theory of last seen together is not found established in the present case and it would be totally unsafe to rest the conviction of the appellants herein on the basis of the theory of ‘last seen together’. We hereby hold accordingly. Page No.13 of 14 IN CRA-1544-2015 Motive: (21) It is the case of the prosecution that appellant- Topbai (A-2) is wife of the deceased and since appellant- Topbai (A-2) was having illicit relationship with appellant- Narsingh Yadav (A-1), they both conspired with each other and committed murder of the deceased and, for which, the learned trial Court attributed motive of the offence on the appellants. However, it is well settled law that motive may be an important circumstance in a case based on circumstantial evidence, but it cannot take place of conclusive proof. (See: Sampath Kumar vs. Inspector of Police, Krishnagiri 8 ). Further, the decision rendered in the matter of Mahendra Singh vs. State of M.P. 9 their Lordships of the Supreme Court reiterated the law on the point stating that merely because motive is established, solely on that basis accused cannot be convicted that too for offence under Section 302 of IPC. We hereby hold accordingly. (22) In view of foregoing analysis, we are unable to hold that the prosecution has been able to prove its case beyond all reasonable doubt, in absence of which, the learned trial Court is unjustified in convicting appellant- Narsingh Yadav for offence under Section 302 r/w 120-B & 201 of IPC and appellant- Topbai for offence under Section 120-B of IPC being the authors of the crime in question in light of the findings recorded in the impugned judgment and same 8 (2012) 4 SCC 124 9 (2022) 7 SCC 157 Page No.14 of 14 IN CRA-1544-2015 are liable to be set aside. (23) Accordingly, we hereby set aside the conviction so recorded and the sentence so awarded by the trial Court to the appellants vide the impugned judgment dated 18.11.2015. Appellant- Narsingh Yadav is acquitted for offence under Section 302 r/w 120-B & 201 of IPC and appellant- Topbai Aadil is also acquitted for offence under Section 120-B of IPC on the basis of benefit of doubt. The appellants are reported to be on bail, therefore, they need not to surrender. However, their bail bonds shall remain in force for a further period of six months in view of the provision contained in Section 437-A of the CrPC. (24) This criminal appeal is allowed. (25) Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned for necessary information and action, if any. Sd/- sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge s@if