1 2025:CGHC:31505-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 624 of 2016 {Arising out of judgment dated 31.03.2016 passed in Sessions Trial No.96/2014 by the learned Additional Sessions Judge, Katghora} Anil Kumar Singh, S/o. Kundan Singh, Aged About 22 Years, R/o. Shakti Nagar, Railway Colony, Dipika, Thana Dipika, Civil And Revenue District Korba, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through Thana Bango, District Korba, Chhattisgarh. ... Respondent For Appellant : Dr. N.K.Shukla, Senior Advocate with Ms. Priya Mishra & Mr. Barun Kumar Mishra, Advocate For Respondent : Mr. Ashutosh Shukla, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Deepak Kumar Tiwari ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.07.14 10:00:51 +0530 2 Judgment on Board (09.07.2025) 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 of conviction and order of sentence dated 31.03.2016, passed by the learned Additional Sessions Judge, Katghora, District Korba in Sessions Trial No. 96/2014, by which the appellant herein has been convicted for the offence under Section 302 & 201 of Indian Penal Code and sentenced as under : CONVICTION SENTENCE U/s. 302 of IPC. : Life imprisonment and fine of Rs. 5000/-, in default of payment of fine, 1 year additional rigorous imprisonment. U/s. 201 of IPC. : Rigorous imprisonment for 2 years and fine of Rs.1000/-, in default of payment of fine, 6 months’ additional rigorous imprisonment. Both the sentence to run concurrently 2. Case of the prosecution, in short, is that, on 30.06.2014 at 8:00 A.M. to 05.07.2014 at 11:00 A.M., the appellant 3 herein along-with one juvenile co-accused assaulted Surendra Das (now deceased) by wooden stick and in order to screen himself from the offence, hide the dead body near canal; thereby the aforesaid offences have been committed. It is the case of the prosecution that from the custody of Smt. Savitri Bai (PW-4) and Pancham Das (PW-5), the appellant had taken the deceased along-with him in his motorcycle on 30.06.2014 at 8:00 A.M. and thereafter, dead body was recovered on 05.07.2014 at 11:00 A.M. vide Ex.P-8 and thereafter the wheels of investigation was started running. The dead body of deceased Surendra Das was identified by his father vide Ex.P-9, Merg Intimation was registered vide Ex.P-16 & Ex.P-18, FIR was registered vide Ex.P-17, inquest was conducted vide Ex.P-2 and dead body of deceased Surendra Das was subjected to post- mortem, which was conducted by Dr. G.S.Jatra (PW-3), who proved the post-mortem report vide Ex.P-4, in which cause of death was stated to be hemorrhagic shock due to rupture of left lung, spleen and liver and death was homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P-11), motorcycle, pieces of wooden sticks and mobile phone were recovered vide Ex.P-12, Ex. P-13 & Ex.P-3. After due investigation, the appellant was charge-sheeted for the aforesaid offences to the 4 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 offences, prosecution examined as many as 15 witnesses and exhibited 42 documents along-with Article-A to C and the appellant-accused in support of his defence has not examined any witness but exhibited the document Ex.D-1. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offences under Section 302 & 201 of Indian Penal Code and sentenced him as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred. 5. Dr. N.K.Shukla, senior counsel along-with Ms. Priya Mishra & Barun Kumar Mishra, learned counsels for the appellant, would submit that the appellant has been convicted only on the basis of the theory of last seen together and the call details. They would further submit that the call details i.e. Article-A to C are not supported by a certificate required 5 under Section 65B(4) of the Indian Evidence Act, therefore, it is inadmissible in evidence. The theory of last seen together has also not been proved as the dead body was recovered after more than 100 hours time gap between the last seen together of appellant with deceased, therefore, in absence of corroboration, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed. 6. Mr. Ashutosh Shukla, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offences. As such, the appellant is not entitled for acquittal and 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 Surendra Das was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-4) proved by Dr. G.S. Jatra (PW-3), according to which, cause of death was stated 6 to be hemorrhagic shock due to rupture of left lung, spleen and liver 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 nor contrary to the record and accordingly, we hereby affirm the said finding. 9. 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 ? 10. At this stage, it would be appropriate to notice the decisions with regard to theory of last seen together rendered by the Supreme Court. 11. 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. 1 (1991) 3 SCC 27 7 12. 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 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.” 13. Likewise, in the matter of State of Goa v. Sanjay Thakran3, 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 the intervening period. It was observed in paragraph 34 as under :- 2 1994 Supp (2) SCC 372 3 (2007) 3 SCC 755 8 “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 9 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. ” 14. 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 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 4 (2014) 4 SCC 715 10 from the custody forthwith unless required otherwise.” 15. 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. 16. 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 5 (2017) 14 SCC 359 6 (2018) 16 SCC 161 11 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.” 17. In the matter of State of Goa v. Sanjay Thakran and another7, 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. 7 (2007) 3 SCC 755 12 18. Coming to the facts of the case, it is quite vivid that the appellant and deceased both were last seen together by Smt. Savitri Bai (PW-4) and Pancham Das (PW-5), mother and brother of the deceased on 30.06.2014 at 8:00 A.M. and at that time, appellant came along-with one juvenile co-accused and taken the deceased along-with him and thereafter, the dead body was found on 05.07.2014 at 11:00 A.M. As such, there is considerable time gap of more than 100 hours between the last seen together of appellant with deceased and the date & time of recovery of the dead body. Therefore, in absence of corroboration, it would be unsafe to rely upon the theory of last seen together to base the conviction. 19. In shape of corroboration, the call details has been brought on record vide Article-A to C, however, it has not been supported by the mandatory certificate required under Section 65B(4) of the Indian Evidence Act, which is a condition precedent to the admissibility of secondary evidence by way of electronic evidence. (See: Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal8). Furthermore, there is no other evidence available on record to base the conviction of the appellant and in that view of the matter, the trial Court is absolutely unjustified in 8 (2021) 7 SCC 1 13 convicting the appellant for offence under Sections 302 & 201 of I.P.C. and, as such, he is entitled for acquittal on the ground of benefit of doubt. 20. Accordingly, the impugned judgment of conviction and order of sentence dated 31.03.2016 is hereby set aside. In the result, the appeal is allowed. The appellant stands acquitted giving him benefit of doubt from the charges framed against him for the offences punishable under Sections 302 & 201 of Indian Penal Code. 21. The appellant is already on bail, he need not surrender; however, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 22. 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. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Ashok