1 2025:CGHC:1143-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 704 of 2019 {Arising out of judgment dated 10.04.2019 passed in Sessions Trial No.78/2018 by the learned Fourth Additional Sessions Judge, Raipur} 1 - Dallu Barle, S/o. Baisakhuram Barle, Aged About 32 Years, R/o. Village- Pathrakundi, Police Station- Kharora, District- Raipur, Chhattisgarh. 2 - Prakash Kumar Barle, S/o. Dayaram Barle, Aged About 22 Years, R/o. Village- Pathrakundi, Police Station- Kharora, District- Raipur, Chhattisgarh. ... Appellants versus State Of Chhattisgarh, Through Station House Officer, Police Station- Kharora, District- Raipur, Chhattisgarh. ... Respondent (Cause Title taken from Case Information System) For Appellants : Mr. Anchal Kumar Matre, Advocate For Respondent : Mr. Sharad Mishra, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.01.10 10:41:14 +0530 2 Judgment on Board (08.01.2025) 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 10.04.2019, passed by the learned Fourth Additional Sessions Judge, Raipur, in Sessions Trial No.78/2018, by which, the two appellants herein have been convicted and sentenced as under : For Appellant No.1 CONVICTION SENTENCE U/s.302 of I.P.C. : Rigorous imprisonment for life and fine of Rs.1000/-, in default of payment of fine, additional rigorous imprisonment for 6 months. U/s. 201 read with Section 302 read with Section 34 of I.P.C. : Rigorous imprisonment for 3 years and fine of Rs.300/-, in default of payment of fine, additional rigorous imprisonment for 3 months. Both the sentence to run concurrently. For Appellant No.2. U/s. 201 read with Section 302 read with Section 34 of I.P.C. : Rigorous imprisonment for 3 years and fine of Rs.300/-, in default of payment of fine, additional rigorous imprisonment for 3 months. 3 2. Case of the prosecution, in short, is that on 13.12.2017 in the morning at 7:45 A.M. at village Pathrakundi, Police Station- Kharora, District Raipur, the appellant No.1 strangulated his wife Sunita Barle (now deceased) and in furtherance of common intention with appellant No.2, they burnt the dead body of deceased and thereafter concealed it near Kanhar Talab; thereby, the aforesaid offences have been committed. Dehati Merg Intimation was registered vide Ex.P-15, Merg Intimation was registered vide Ex.P-17, FIR was registered vide Ex.P-20, Inquest was conducted vide Ex.P-2 and dead body of deceased Sunita Barle was subjected to post-mortem, which was conducted by Dr. Ulhas Gonnade (PW-11), who proved the post-mortem report vide Ex.P-12, in which, no definite opinion can be given regarding cause of death as the dead body putrefied. Pursuant to memorandum statement of the appellant No.1 vide Ex.P-5, gunny bag and jerrycan containing kerosene oil were recovered vide Ex.P-7, which were sent for chemical examination to FSL. After due investigation, the appellants were charge-sheeted for the aforesaid offences 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 appellants abjured their guilt and entered into defence stating that they have 4 not committed any offence and they have been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 14 witnesses and exhibited 32 documents and the accused/ appellants in support of their defence have not examined any witness but have exhibited the document Ex.D-1. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellants herein for the aforesaid offences as mentioned in the opening paragraph of his judgment, against which the present appeal has been preferred. 5. Mr. Anchal Kumar Matre, learned counsel appearing for the appellants, would submit that the prosecution has not been able to bring home the offences beyond reasonable doubt and the incriminating circumstances as pointed out and found proved by the trial Court in 16 of its judgment are not at all established; therefore, the appellants are entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed. 6. Mr. Sharad Mishra, learned State counsel would submit that the prosecution has been able to bring home the 5 offences beyond reasonable doubt and the trial Court has rightly convicted the appellants for the aforesaid offences as all the incriminating circumstances No.1 to 5 were found to be established 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 Sunita Barle was homicidal in nature, has been answered by the trial Court in affirmative in para 15 of its judgment relying upon the post-mortem report (Ex.P-12) proved by Dr. Ulhas Gonnade (PW-11), which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse 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 6 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 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, 1 (1984) 4 SCC 116 2 (1973) 2 SCC 793 7 (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 culled out the following five incriminating circumstances in paragraph 16 of its judgment, which states as under : “16. vfHk;kstu ds }kjk izdj.k esa izLrqr fd;s x;s lk{; ls ;g rks Li"V gS fd izdj.k esa dksbZ Hkh izR;{kn’khZ lk{kh ugha gS] vfirq vfHk;kstu dk ;g izdj.k ifjfLFkfrtU; lk{; ij vk/kkfjr gS] vr% bl ifjizs{; esa vfHk;kstu lk{; ij lq{erk ls fopkj fd;k tkuk gSA tgka izdj.k esa mifLFkr lk{; ifjfLFkfrtU; izd`fr dk gS] ogka ifjfLFkfr;ksa ls nks"k dk fu"d"kZ fudkys tkus ds fy, iw.kZ :i ls lk{; ls lkfcr fd;k tkuk pkfg;sA bl izdkj lkfcr leLr rF; vkjksih dh nks"k dh ifjdYiuk ls lqlaxr gksuk pkfg;sA ifjfLFkfr;ka fu'p;kRed izd`fr vkSj izo`fRr ls lqlaxr gksuk pkfg;s vkSj mUgsa ,slk gksuk pkfg;s] tks lkfcr fd;s tkus okyh izLrkfor ifjdYiuk ds flok; izR;sd ifjdYiukvksa dks ifjoftZr djsA vfHk;kstu i{k dh vksj ls izLrqr fd;s x;s ekSf[kd ,oa nLrkosth lk{; ij vk/kkfjr izek.k ds vuqlkj tks ifjfLFkr;ka LFkkfir gqbZ gSa muds vuqlkj %& 1- vfHk;qDr nYyw ckjys ,oa e`frdk ds e/; ?kVuk fnukad ls iwoZ oSokfgd laca/k vPNs ugha Fks vkSj muds e/; ekjihV tSlh ?kVuk;sa gksrh FkhaA 8 2- ?kVuk ds dqN fnu iwoZ lkekftd cSBd ds nkSjku vfHk;qDr nYyw ckjys ds }kjk e`frdk dks ?kj pyus ij ns[k fy;s tkus dh /kedh fn;k tkukA 3- e`frdk dks fnukad 13-12-2017 dks vfHk;qDr ds ?kj ls pys tkus ds ckn mldk 'ko fnukad 16-12-2017 dks feyus ds iwoZ vfHk;qDr nYyw ckjys ds }kjk mls [kkstus dk dksbZ izHkko'kkyh iz;kl ugha fd;k tkukA 4- fnukad 13-12-2017 dks e`frdk dks vafre ckj thfor voLFkk esa vfHk;qDr nYyw ckjys ds lkFk jguk] ftlds i'pkr~ fnukad 16-12- 2017 dks mldk 'ko cjken gksuk] bl chp fdlh Hkh vU; O;fDr ds }kjk mls thfor voLFkk esa ugha ns[kk tkukA 5- vfHk;qDr ds eseksjaMe dFku ds vk/kkj ij 'ko dks ys tkus esa iz;qDr cksjk o mls tykus gsrq iz;qDr feV~Vh rsy ds fMCcs dh tIrh gksukA ” 11. We will take up the aforesaid incriminating circumstances one by one in order to consider the correctness of the impugned judgment. 12. The first incriminating circumstance that the relationship between the appellant and his wife (deceased) was not cordial appears to have been established and that can be taken as motive for commission of offence, which is a correct finding of fact based on evidence available on record. 13. The second incriminating circumstance that during the social meeting held prior to incident, the appellant has 9 threatened his wife, which the trial Court has found proved, but no date has been given and there is no FIR lodged against the appellant alleging that the appellant has threatened his wife and it is not acceptable as thereafter both appellant and deceased resided together. As such, it is not established that the appellant has threatened his wife. 14. The third incriminating circumstance is that after deceased having left the house and company of the appellant, the dead body was recovered on 16.12.2017, but the appellant did not take any effective steps to trace out his wife. However, in this regard, the statement of Khopchand Mande (PW-1), brother of deceased, may be noticed herein, in which, it has been clearly stated that on 13.12.2017, appellant No.1 Dallu Barle & appellant No.2 Prakash Barle both came personally and informed that deceased Sunita Barle absconded from their home and thereafter, both have gone to village Pathrakundi. Though, the appellant No.1 had not lodged the missing report, but he immediately informed the brother of deceased about missing of his wife Sunita. As such, it is not correct to say that the appellant has not taken any steps to trace out his missing wife, as he had informed the brother of deceased immediately on the same day when she went missing and, as such, this incriminating circumstance is not established. 10 15. The fourth incriminating circumstance is that on 13.12.2017, the appellant and deceased were last seen together. As per the statement recorded in Ex.P-15 (Dehati Merg Intimation), it is the case of the prosecution that the appellant was seen along-with his wife Sunita (deceased) on 13.12.2017 and on the same day, she left his company and thereafter, the dead body was recovered on 16.12.2017 at 6:30 P.M. vide Ex.P-16 (Identification Panchnama). 16. Now, the question is, whether the theory of last seen together has been established and that can be made basis for conviction of the appellant ? 17. At this stage, it would be appropriate to notice the decisions with regard to theory of last seen together rendered by the Supreme Court. 18. 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. Thereafter, in that view of the above fact and other evidence on record, their Lordships have held that the deceased was 3 (1991) 3 SCC 27 11 last seen in the company of the accused is not established beyond reasonable doubt. 19. 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.” 20. 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 any other person meeting or approaching the deceased at the place of incident or before the commission of crime in 4 1994 Supp (2) SCC 372 5 (2007) 3 SCC 755 12 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 13 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. ” 21. 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. 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 6 (2014) 4 SCC 715 14 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.” 22. 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. 23. 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 7 (2017) 14 SCC 359 8 (2018) 16 SCC 161 15 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.” 16 24. 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. 25. In the instant case, admittedly the deceased was with the company of the appellant on 13.12.2017 till evening and thereafter, she was found missing and the appellant No.1 had informed the brother of deceased (PW-1) about her missing and thereafter, the dead body was recovered vide Ex.P-16 on 16.12.2017 at 6:30 P.M. As such, there is considerable time gap of more than 80 hours between the last seen together of appellant and deceased and the date and time of recovery of the dead body. 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 the matter of Navaneetha-krishnan (supra). 9 (2007) 3 SCC 755 17 26. The last incriminating circumstance that has been found proved by the trial Court is that pursuant to memorandum statement of the appellant No.1, the gunny bag which was used for carrying the dead body was recovered and jerrycan containing kerosene oil was also recovered, but nothing was found in the gunny bag as per the FSL report (Ex. P-30) and in jerrycan, only kerosene oil was found, which is not sufficient to connect the appellants for the offences in question. Even otherwise, the recovery of gunny bag was not proved as the seizure witness Makhanlal Sonwani (PW-3) has turned hostile. 27. Lastly, the trial Court has invoked Section 106 of the Indian Evidence Act, which in our considered opinion could not be applicable as the deceased was in company of the appellant in the morning and thereafter, the deceased was missing, which the appellant had immediately informed to brother of deceased Khopchand Mande (PW-1) and the dead body was recovered on 16.12.2017. As such, the trial Court has committed grave error in invoking Section 106 of the Indian Evidence Act to base the conviction of the appellant. In that view of the matter, the appellants are entitled for acquittal on the basis of benefit of doubt, as only on the basis of proving the motive for commission of 18 offence, appellants cannot be convicted for offence under Sections 302 & 201 of I.P.C. 28. In view of the above discussion, we are unable to maintain the conviction of the appellants for offences as mentioned in the opening paragraph of this judgment. Accordingly, the impugned judgment of conviction and order of sentence dated 10.04.2019 is hereby set aside and the appellants stand acquitted of the offences under Section 302 and Section 201 read with Section 302 read with Section 34 of I.P.C. extending them the benefit of doubt. The appellants are stated to be in jail since 07.01.2018, they are directed to be released forthwith from jail, unless their detention are required in connection with any other offence. 29. In the result, the appeal is allowed. 30. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellants are suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ashok