1 CRA No. 1285 of 2017 2026:CGHC:27382-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1285 of 2017 [Arising out of judgment dated 25.02.2017 passed in Sessions Trial No.160/2016 by the 4 th Additional Sessions Judge Raipur, Chhattisgarh.]  Beniram @ Chhotu Baghel S/o Shri Balaram Baghel, Aged About 19 Years, R/o Village Siltara, Meharpara, Police Station Dhrsiva, District Raipur Chhattisgarh. ... Appellant versus  State of Chhattisgarh Through Police Station Dharsiva, District Raipur, Chhattisgarh. ... Respondent For Appellant :- Mr. C.R. Sahu, Advocate. For State/Respondent :- Mr. Rahul Tamaskar, Government Advocate & Mr. Sharad Mishra, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (03.07.2026) Sanjay K. Agrawal, J 1. Feeling aggrieved and dissatisfied with the judgment of conviction and order of sentence dated 25.02.2017 passed ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH 2 CRA No. 1285 of 2017 by the 4th Additional Sessions Judge, Raipur, Chhattisgarh in Sessions Trial No.160/2016 by which the appellant has been convicted for offence under Section 302 of the IPC and sentenced thereunder to suffer imprisonment for life with fine of 500/-; in default of payment of fine, he has to ₹ undergo simple imprisonment for three months. Prosecution story:- 2. The case projected by the prosecution and accepted by the trial Court is that on 21.04.2016 at about 8:00 pm, in the agricultural field near Naya Talab at village Siltara, Police Station – Dharsiva, Raipur, District Raipur, Chhattisgarh, appellant in drunken state, started quarrel with Rahmuddin @ Monu, and during that quarrel appellant pushed Rahmuddin due to which he fell on the ground and thereafter, appellant assaulted on his head by stone on account of which he suffered grievous injuries and died. About the death of Rahmuddin, unnumbered dehati merg intimation and numbered merg intimation were registered vide Exs. P/5 & P/25, respectively. FIR was registered against unknown person vide Ex.P/29. Crime details form and nazari naksha were prepared vide Exs.P/6 & P/22, respectively. Inquest proceedings (Ex.P/8) were conducted 3 CRA No. 1285 of 2017 and the dead body of the deceased was subjected to postmortem. As per postmortem report (Ex.P/18) proved by Dr. Manju Tirkey (PW-13), cause of death was shock due to external and internal bleeding. Wheels of investigation started running and the appellant was arrested. Pursuant to memorandum statement of the appellant (Ex.P/9) weapon of offence i.e. stone was seized vide Ex.P/13. Other articles were also seized. As per the query report (Ex.P/21) proved by Dr. Manju Tirkey (PW-13) the injuries found over the body of the deceased could be caused by the seized stone. Seized articles were sent for FSL, however FSL report has not been brought on record for the reason best known to the prosecution. 3. After due investigation, appellant herein was charge- sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution has examined as many as 16 witnesses and exhibited 34 documents and Article-A whereas, defence, in support of its case, has neither examined any witness, nor exhibited any 4 CRA No. 1285 of 2017 document. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which the instant appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 6. Mr. C.R. Sahu, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. He would also submit that theory of last seen together is not established on the basis of statements of Chandrika Sen (PW-4) and Mohd. Ayub (PW-5). He would further submit that and even otherwise, only on the basis of theory of last seek together appellant could not be convicted that too for offence under Section 302 of the IPC in absence of other 5 CRA No. 1285 of 2017 corroborative piece of evidence. Thus, the appeal deserves to be allowed and the appellant is entitled for acquittal on the basis of benefit of doubt. 7. Mr. Rahul Tamaskar and Sharad Mishra, learned State counsel, would oppose the prayer made by learned counsel for the appellant and submit that the trial Court has rightly convicted the appellant on the basis of theory of last seen together proved by PW-4 & PW-5. Therefore, the appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submission made herein above and gone through the records precisely. Discussion & Analysis:- 9. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the statement of Dr. Manju Tirkey (PW-13) and postmortem report (Ex.P/18) proved by Dr. Manju Tirkey (PW-13) and the same has not been questioned by the defence, which, in our considered opinion, is a correct finding of fact based on evidence available on record and the same is neither perverse nor contrary to the record. Accordingly, we hereby affirm the 6 CRA No. 1285 of 2017 finding of the trial Court holding that the death of the deceased was homicidal in nature. 10. Now, the next question is, whether the appellant is author of the crime in question? 11. The case of the prosecution is only based on the theory of last seen together which the trial Court has found established on the basis of statement of Chandrika Sen (PW-4) and Mohd. Ayub (PW-5). 12. Now, question for consideration would be, whether the trial Court is justified in convicting the appellant only on the basis of last seen together finding it to be duly established? 13. At this stage, it would be appropriate to notice the relevant decisions qua the theory of last seen together. 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 that view of the above fact and other evidence 1 (1991) 3 SCC 27 7 CRA No. 1285 of 2017 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 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.” 16. Likewise, in the matter of State of Goa v. Sanjay Thakran and another3, 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 2 1994 Supp (2) SCC 372 3 (2007) 3 SCC 755 8 CRA No. 1285 of 2017 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 9 CRA No. 1285 of 2017 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. 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 Rajasthan5. 4 (2014) 4 SCC 715 5 (2010) 15 SCC 588 10 CRA No. 1285 of 2017 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. 19. In the matter of Navaneethakrishnan v. State by Inspector of Police7, 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 6 (2017) 14 SCC 359 7 (2018) 16 SCC 161 11 CRA No. 1285 of 2017 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.” 20. Recently, in the matter of Padman Bibhar v. State of Odisha 8 , where except for the evidence of ‘last seen together’ there is no other incriminating material against 8 2025 SCC OnLine SC 1190 12 CRA No. 1285 of 2017 the appellant the Supreme Court has held that only on the basis of last seen together appellant could not be convicted in absence of other circumstantial evidence which are conclusive. [See paragraph Nos. 19 to 25]. 21. In the instant case, the trial Court has relied upon the statements of Chandrika Sen (PW-4) and Mohd. Ayub (PW- 5) to base the conviction of the appellant on the basis of theory of last seen together. However, PW-5 has turned hostile and not supported the case of the prosecution. PW- 4, before the Court has stated that on the date of incident at about 8:00 pm, he (PW-4) had seen the appellant and the deceased as at that time he (PW-4) and one Ghondul were eating chicken in his shop and deceased entered into his shop and comb his hairs and appellant was standing outside the shop and shutter of his (PW-4) shop was half closed. However, he has not stated that the deceased and the appellant both left his shop together. As such, PW-4 & PW-5 are not the witness of theory of last seen together and further there is no other corroborative piece of evidence in support of last seen theory. In light of the decision of the Supreme Court in the matters of Navaneethakrishnan (supra) & Padman Bibhar (supra) the appellant could not 13 CRA No. 1285 of 2017 be convicted only on the basis of theory of last seen together in absence of other corroborative piece of evidence, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt. Conclusion:- 22. In view of the aforesaid discussion and analysis, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 25.02.2017 passed by the trial Court convicting and sentencing the appellant for the offence in question, is hereby set aside and the appellant is entitled for acquittal on the basis of principle of benefit of doubt. Since the appellant is stated to be on bail, he need not surrender. However, his bail bond shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC. 23. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ankit