1 CRA No. 1042 of 2019 2025:CGHC:303-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1042 of 2019 (Ari sing out of judgment dated 23.05.2019 passed in Sessions Trial No.51/2017 by the Sessions Judge, Kondagaon, District Kondagaon, Chhattisgarh. )  Dhineshwar Nag S/o Baliram, aged about 23 years, R/o Village Ghodagaon, Maripara, Police Station and District Kondagaon, Chhattisgarh. ... Appellant versus  State of Chhattisgarh through Police Station House Kondagaon, District Kondagaon, Chhattisgarh. ... Respondent For Appellant :- Mr. Gajendra Kumar Sahu, Advocate. For Respondent-State :- Mr. H.A.P.S. Bhatia, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sachin Singh Rajput Judgment On Board (03.01.2025) Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the sole appellant-accused, is to the legality, validity and correctness of the judgment dated 23.05.2019 passed by the Sessions Judge, ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.01.06 13:30:02 +0530 2 CRA No. 1042 of 2019 Kondagaon, District Kondagaon, Chhattisgarh, in Sessions Trial No. 51/2017 by which the sole appellant herein has been convicted for offence under Section 302 of the IPC and sentenced thereunder to suffer imprisonment for life with fine of ₹ 200/-; in default of payment of fine amount to undergo additional rigorous imprisonment for three months and also convicted for offence under Section 201 of the IPC and sentenced to undergo rigorous imprisonment for 5 years with fine of ₹ 200/-; in default of payment of fine amount to undergo additional rigorous imprisonment for three months. Both the sentences were directed to run concurrently. Prosecution story:- 2. From the intervening night of 04.02.2017 about 7:00 pm to 07.02.2017 about 6:00 am, at village Maripara Makdi, Police Station Kondagoan, District Kondagaon, Chhattisgarh, the appellant caused the death of his wife Purani Nag by pushing her into the well and thereafter to screen himself from the offence lodged the false report that his wife had left the house. During investigation, the dead body of the deceased was found on 07.02.2017. Merg intimation and FIR were registered vide Exs.P/13 & P/16, 3 CRA No. 1042 of 2019 respectively. Appellant was arrested vide Ex.P/7. Spot map was prepared vide Ex.P/9. Inquest proceedings (Ex.P/2) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/27) proved by Dr. Rupendra Kumar Sahu (PW-16), cause of death was asphyxia due to drowning confirmation after diatom test and as per the forensic report (Ex.P/25) bone and water are found positive for diatom test. Pursuant to memorandum statement of the appellant (Ex.P/5) wooden stick was seized vide Ex.P/6. Other articles were also seized. Seized articles were sent for chemical analysis to the FSL, but the FSL report has not been brought on record for the reasons best known to the prosecution. 3. After due investigation, appellant herein was charge- sheeted for the aforesaid offences 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 27 documents, whereas, defence, in support of its case, has neither examined any witness nor exhibited any document. 4 CRA No. 1042 of 2019 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 offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 6. Mr. Gajendra Kumar Sahu, learned counsel for the appellant, submits that the trial Court is absolutely unjustified in convicting the appellant for the offences in question as the prosecution has failed to bring home the offences. He also submits that only on the basis of last seen together the appellant has been convicted for offences in question whereas, the appellant and the deceased were seen last together on 04.02.2017 at about 6:00 pm and as per merg intimation (Ex.P/13) the dead body of the 5 CRA No. 1042 of 2019 deceased was found on 07.02.2017 at about 6:00 am, as such, there is a considerable time gap of 60 hours between the last seen together of the appellant and the deceased and when the dead body was recovered. He further submits that the prosecution has also failed to produce corroborative piece of evidence to prove its case and the case of the prosecution is only based on the surmises and conjectures, therefore, in absence of other corroborative piece of evidence it cannot be held that the appellant is the perpetrator of the crime in question. Thus, the instant criminal appeal deserves to be allowed and the appellant deserves to be acquitted on the basis of benefit of doubt. 7. Per contra, Mr. H.A.P.S. Bhatia, learned State counsel, supports the impugned judgment and submits that prosecution has been able to bring home the offence beyond reasonable doubt. He also submits that the incriminating circumstances culled out by the trial Court in paragraph No.45 of its judgment are well established and, therefore, the conviction of the appellant is well merited and the instant appeal deserves to be dismissed. 6 CRA No. 1042 of 2019 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely. 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 in paragraph No.16 of its judgment relying upon the postmortem report (Ex.P/27) proved by Dr. Rupendra Kumar Sahu (PW-16), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature. 10. Now, the question for consideration would be whether the appellant has assaulted the deceased? 11. The case of the prosecution is based on the circumstantial evidence and the trial Court has found incriminating circumstances established. The five golden principles which constitute panchsheel of the proof of a case based on circumstantial evidence have been laid down by their 7 CRA No. 1042 of 2019 Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 1 in paragraph 153 which state 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, (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.” 1 (1984) 4 SCC 116 2 (1973) 2 SCC 793 8 CRA No. 1042 of 2019 12. To base the conviction of the appellant the trial Court has catalogued the following incriminating circumstances, which state as under:- 45. अत: उ्ሹ विचन उपाሲ त न्यायालया इस विनष्क्ቧ पाሲ पुሻ चत ुሻ विक परिाሲቝኌवितजन्या सቌኚया स विनम्नलिललि#त तथ्या ्ቚमावि'त ुሻ( ाሲुሻ ुሻ)- a. वि*न क 04/02/2017 क( शामा आाሲ(प अपन पत्न प.ाሲनबाई क( अपन सस.ाሲल ቇኋमा माक़ቡ मााሲपाሲ स लकाሲ अपन घाሲ क(ण्डााሙ जन क लिलया विनकल। b. वि*न क 04/02/2017 क( शामा 4 बाज मा*नाሲमा माया ( अ०स० 3) न अपन *.कन क पस आाሲ(प औाሲ प.ाሲनबाई क( झाሙ़ቡ काሲत *#, ुሻ आाሲ(प न प.ाሲनबाई क( *(- तन प्प़ቡ मााሲ । c. वि*न क 04/02/2017 क( शामा काሲबा 6 बाज क तलल प डा ( अ०स० 4) न आाሲ(प औाሲ प.ाሲनबाई क( रुपन प डा क क. आ क पस कच्च स़ቡक ाሲत मा> #़ቡ *# । d. रुपन प डा क क. आ क पस कच्च ाሲत मा> स घ्ቧ क विनशान ए मा@तक प.ाሲनबाई कA टूCटू ुሻई च.़ቡ, ቝኌDलप, ब्लउज क ऩቡ बााሲमा* ुሻआ, उस न क( *#काሲ ऐस लाሙ ाሲुሻ विक आाሲ(प न प.ाሲनबाई क( क. ए मा> ढक ल ुሻ । e. प(टूमाटूमा रिाሲप(टू ए एफ०एस०एल० रिाሲप(टू क अन.साሲ प.ाሲनबाई कA मा@त्या. पन मा> डाCबान स ुሻई , ज( मान धात्माक ्ቚक@ वित कA । मा@तक प.ाሲनबाई क शााሲाሲ पाሲ मा@त्या. पC च(टू क विनशान पया ाሙया । f. आाሲ(प कA सC@चन क आधााሲ पाሲ अपाሲधा मा> ्ቚया.्ሹ डा डा आाሲ(प क कब्ज स बााሲमा* ुሻआ । विचविकत्सक कA सቌኚया क अन.साሲ इस डा डा स मा@तक प.ाሲनबाई क( आया च(टू> पुሻ चया ज सकत । g. आाሲ(प कA क(ई बाच कुሻन विपत नुሻJ ुሻ । 13. Now, we will discuss the above-stated incriminating circumstances one by one in light of the principles of law laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhchand Sarda (supra). 9 CRA No. 1042 of 2019 14. The incriminating circumstance No. e which has been found proved by the trial Court is that the death of the deceased was homicidal in nature which we have already held in the foregoing paragraph that the finding with regard to nature of death recorded by the trial Court is correct finding of fact based on evidence available on record which is neither perverse nor contrary to the record and we hereby affirm the finding of the trial Court. 15. The incriminating circumstance No. f which has been found proved by the trial Court is that pursuant to memorandum statement of the appellant wooden stick was seized and as per query report (Ex.P/12) proved by Dr. Suraj Singh Rathore (PW-13) the injuries/abrasions which were found over the body of the deceased could be caused by the said wooden stick. However, seizure witnesses Lakhmu Ram Maurya (PW-2) and Shaymlal Kashyap (PW-5) have turned hostile and not supported the case of the prosecution, as such, the prosecution has failed to establish that the weapon of the offence i.e. wooden stick was seized pursuant to memorandum statement of the appellant, even otherwise, it is well settled law that the disclosure alone would not automatically lead to conclusion that offence was also committed by the accused and, 10 CRA No. 1042 of 2019 therefore, the burden lies on prosecution to establish a close link between the discovery of material object and its use in commission of offence. [See: Mustkeem alias Sirajudeen v State of Rajasthan 3 ]. 16. Now, incriminating circumstances No. a, b, c and d are interlinked and, therefore, we will discuss them together. 17. It is the case of the prosecution and the trial Court has found established that on 04.02.2017 at about 4:00 pm firstly Madam Ram Maurya (PW-3) had seen the appellant and the deceased quarreling with each other and appellant slapped the deceased. In this regard statement of PW-3 may be noticed herein as he has also stated that at that time mother of the deceased Cherobai (PW-9) was also present. However, PW-9 did not support the case of the prosecution to the extent that the appellant had slapped her daughter (deceased) and she has clearly stated that she did not know who caused the death of her daughter (deceased). As such, this witness is of no use to the prosecution. 3 (2011) 11 SCC 724 11 CRA No. 1042 of 2019 18. Next, the appellant and the deceased were last seen together on 04.02.2017 by Kantilal Pandey (PW-4) near the well of Roopnath Pandey (not examined). 19. Now, question for consideration would be whether the trial Court is justified in convicting the appellant on the basis of last seen together? 20. At this stage, it would be appropriate to notice the relevant decisions qua the theory of last seen together. 21. 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, 4 (2014) 4 SCC 715 12 CRA No. 1042 of 2019 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. 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 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. 23. 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 5 (2010) 15 SCC 588 6 (2017) 14 SCC 359 7 (2018) 16 SCC 161 13 CRA No. 1042 of 2019 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.” 24. In the matter of State of Goa v. Sanjay Thakran and another8, their Lordships of the Supreme Court found that there was considerable time gap of approximately 8½ hours 8 (2007) 3 SCC 755 14 CRA No. 1042 of 2019 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. Coming to the facts of the present case in light of principle of law laid down by their Lordships of the Supreme Court in the aforesaid judgments, it is quite vivid that the appellant and the deceased were last seen together alive on 04.02.2017 at about 6:00 pm whereas, the dead body of the deceased was found on 07.02.2017 at about 6:00 am vide Ex.P/13 with a gap of 60 hours and, therefore, there is considerable time between the appellant and the deceased were seen together and the proximate time of crime and more particularly, it was an open well belonging to one Roopnath Pandey who has not been examined. As such, the theory of last seen together is not established and also the prosecution has failed to produce other corroborative or connecting piece of evidence to prove its case. Conclusion:- 26. In view of the aforesaid discussion and analysis, we are of the considered view that the prosecution has failed to 15 CRA No. 1042 of 2019 discharge its primary burden of proving its case beyond reasonable doubt and also failed to complete the chain of circumstances in light of the decision of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), therefore, the conviction of the appellant for offence under Sections 302 and 201 of the IPC as well as their respective sentences are hereby set aside and he is acquitted of the said charges on the basis of principles of benefit of doubt. He is reported to be in jail since 11.02.2017. Accordingly, the appellant be released from jail forthwith, if not required any other matter. 27. This criminal appeal is allowed. 28. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge Ankit