1 2025:CGHC:7700-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 494 of 2019 {Arising out of judgment dated 14.02.2019 passed in Sessions Trial No.H-16/ 2017 by the learned Additional Sessions Judge Bhatapara, District Baloda Bazar-Bhatapara} Jagatram Dhruv, S/o. Rasuram Dhruv, Aged About 36 Years, R/o. Village- Mopki, P.S. Bhatapara Grameen, District- Baloda Bazar-Bhatapara, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through- P.S. Bhatapara City, District- Baloda Bazar-Bhatapara, Chhattisgarh. ... Respondent (Cause Title taken from Case Information System) For Appellant : Mr. Adil Minhaj, Advocate For Respondent : Mr. Vivek Mishra, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (12.02.2025) ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.02.17 10:14:44 +0530 2 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 14.02.2019 passed by learned Additional Sessions Judge, Bhatapara, District Baloda Bazar- Bhatapara, in Sessions Trial No.H-16/2017, by which the appellant herein has been convicted for offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.1000/- in default of payment of fine, additional rigorous imprisonment for 1 year. 2. Case of the prosecution, in short, is that in between 20.06.2017 to 21.06.2017 at Hathnikhar, Police Station - Bhatapara, the appellant herein has assaulted Ramshyam Yadav (now deceased) by stone on his head, by which he suffered grievous injuries and died; thereby the offence has been committed. The matter was reported to the police, pursuant to which, Merg Intimation was registered vide Ex.P-1, FIR was registered vide Ex.P-2, Inquest was conducted vide Ex.P-5 and dead body of deceased Ramshyam was subjected to post-mortem, which was conducted by Dr. R.N.Das (PW-10), who proved the post- mortem report Ex.P-17, according to which, cause of death 3 was stated to be cardio respiratory arrest due to cessation of function of the brain due to compression by blood resulting into intracranial vessels and death was homicidal in nature. Pursuant to memorandum statement of the appellant Ex. P-10, cash of Rs.49,000/- has been recovered vide Ex.P-11 & Ex.P-12 from the appellant and the weapon of offence i.e. stone was recovered from the spot, which were sent for chemical examination to FSL along-with other seized articles and as per the FSL report (Ex.P-31), blood was found on the seized stone. After due investigation, the appellant was charge-sheeted for the aforesaid offence to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 15 witnesses and exhibited 32 documents along- with Article A-1 & A-2 and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the 4 offence under Section 302 of I.P.C. and sentenced to undergo life imprisonment, against which the present appeal has been preferred. 5. Mr. Adil Minhaj, learned counsel for the appellant, would submit that the theory of last seen together has not been proved as Chunnilal Dhruv (PW-7), Clerk of the Bank, had seen the appellant in the Bank where the deceased was there for withdrawal of the amount on 19.06.2017 at 11 to 12 A.M. whereas the dead body was recovered on 21.06.2017 at 8:00 A.M. As such, there is considerable time gap between the alleged last seen together and recovery of the dead body, therefore, the theory of last seen together cannot be relied upon to base the conviction. Furthermore, FulKuwar (PW-15), who is the wife of deceased is said to have enquired from the deceased, but no time and date and no records have been filed to establish that the appellant was along-with deceased. Furthermore, pursuant to memorandum statement of the appellant, Rs.49,000/- was recovered, but there is no matching of the currency which has been allegedly withdrawn from the Bank and was found in possession of the appellant and therefore, it could not be held that it is the amount of deceased, which the appellant had looted or snatched and, as such, it is of no use to the prosecution. 5 Furthermore, on the full pant and shirt of the appellant no blood has been found as per FSL report Ex.P-31 and, as such, the appellant is entitled for acquittal on the ground of benefit of doubt and the appeal deserves to be allowed. 6. Mr. Vivek Mishra, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence and, as such, the 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. The first question for consideration as to whether the death of deceased Ramshyam was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-17, proved by Dr. R.N.Das (PW- 10), according to which, cause of death was stated to be cardio respiratory arrest due to cessation of function of the brain due to compression by blood resulting into intracranial vessels and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse 6 nor contrary to the record and accordingly, we hereby affirm the said finding. 9. The case of the prosecution is not based on direct evidence, it is based on circumstantial evidence. The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 1 , which must be fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153 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: Certainly, it is a primary principle that the accused must be and not merely may be 1 (1984) 4 SCC 116 2 (1973) 2 SCC 793 7 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.” 10. The trial Court has found the following incriminating circumstances to base the conviction of the appellant. (i) The appellant was seen along-with the deceased by Chunnilal Dhruv (PW-7), Clerk of the Oriental Bank, Bhatapara on 19.06.2017 at about 11 to 12 A.M. (ii) The wife of deceased Fulkuwar (PW-15) has stated before the Court that on enquiry by her, deceased has informed that he was along-with the appellant. (iii) Pursuant to memorandum statement of the appellant, Rs.49,000/- has been recovered vide Ex.P-11 & Ex.P-12, which was of the deceased. 8 11. The first incriminating circumstance is the theory of last seen together, which has been found proved by the trial Court though on the basis of statement of Chunnilal Dhruv (PW-7). However, PW-7, Clerk of the Oriental Bank, Bhatapara, has only stated that on 19.06.2017, deceased has withdrawn Rs.49,000/- and at that time, he was all alone but appellant was also present in the Bank. However, in paragraph 6 he has stated that when the deceased has come to Bank to withdraw the amount, he was all alone and he has left the Bank all alone. He also stated that he could not see along-with whom the deceased came and further did not make clear statement from whom the deceased has left the Bank. However, he clearly stated that he had seen the appellant along-with deceased and, as such, at the most he has only seen the appellant in the Bank and he did not say that the appellant came along- with the deceased or appellant left the Bank along-with deceased. 12. In the matter of Jaharlal Das v. State of Orissa3, 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. 3 (1991) 3 SCC 27 9 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. 13. In the matter of Arjun Marik v. State of Bihar4, 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 to though 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.” 14. Likewise, in the matter of State of Goa v. Sanjay Thakran5, 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 4 1994 Supp (2) SCC 372 5 (2007) 3 SCC 755 10 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 11 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. ” 15. Similarly, in the matter of Kanhaiya Lal v. State of Rajasthan6, 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. 6 (2014) 4 SCC 715 12 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 Rajasthan. 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.” 16. In the matter of Anjan Kumar Sarma v. State of Assam7, 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. 7 (2017) 14 SCC 359 13 17. In the matter of Navaneethakrishnan v. State by Inspector of Police8, 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 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 8 (2018) 16 SCC 161 14 certainty. However, this evidence alone cannot discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration.” 18. In the matter of State of Goa v. Sanjay Thakran and another9, 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. 19. 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 theory of last seen together is not proved beyond reasonable doubt and even it is assumed that Chunnilal Dhruv (PW-7), Clerk of the Oriental Bank, had seen the appellant along-with deceased, there is considerable time gap between the last seen together of appellant along-with deceased and recovery of the deceased body of deceased, as the appellant was seen along-with deceased on 19.06.2017 at about 11 to 12 A.M. and dead body of deceased was recovered on 21.06.2017 at about 9 (2007) 3 SCC 755 15 8:00 A.M. and according to the Dr. R.N.Das (PW-10) who conducted the post-mortem on 21.06.2017 at 11:30 A.M., the deceased died 18 to 72 hours prior to the post-mortem. Therefore, the theory of last seen together cannot be relied upon to base conviction for offence under Section 302 of I.P.C. in absence of other corroborative piece of evidence, as required by their Lordships of the Supreme Court in Navaneetha-krishnan (supra). 20. The second incriminating circumstance is that wife of the deceased Fulkuwar (PW-15) has stated before the Court that on enquiry, deceased has informed her that he was along-with the appellant. On perusal of the statement of Fulkuwar (PW-15), wife of deceased, no details as to when i.e. date and time and manner in which he was informed by the deceased that he was along-with the deceased could not be established, therefore, it is of no use to the prosecution. 21. The third incriminating circumstance is that pursuant to memorandum statement of the appellant, Rs.49,000/- was recovered vide Ex.P-11 & Ex.P-12, but it could not be established that Rs.49,000/- which was recovered from the appellant was that of the deceased, as there is no statement from Chunnilal Dhruv (PW-7), Clerk of the 16 Oriental Bank, that those notes were delivered to the deceased from the Bank on 19.06.2017 and, as such, it is also of no use to the prosecution. 22. In view of foregoing analysis, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the 'panchsheel' of proof of a case based on circumstantial evidence, as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), in absence of which, the learned trial Court is unjustified in convicting the appellant for offence under Section 302 of I.P.C. being the perpetrator/ author of the crime in question in light of the aforesaid incriminating circumstances found proved by the trial Court. 23. Accordingly, the impugned judgment of conviction and order of sentence dated 14.02.2019 is set aside. The appellant stands acquitted giving him benefit of doubt from the charge framed against him for the offence punishable under Section 302 of I.P.C. The appellant is reported to be in jail, therefore, we direct that he be released from jail forthwith, if not required in any other offence. 24. In the result, the appeal is allowed. 17 25. Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court for necessary information and action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ashok