1 CRA No. 1150 of 2019 2025:CGHC:590-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1150 of 2019 (Ari sing out of judgment dated 22.06.2019 passed in Sessions Trial No.11/2018 by the Additional Sessions Judge, Gharghoda, District Raigarh, Chhattisgarh. )  Tikeshwar Yadav S/o Shri Chudamani Yadav, aged about 40 years, R/o Village – Sihardhar, P.S. Lailunga, District Raigarh, Civil and Revenue District Raigarh, Chhattisgarh. ... Appellant versus  State of Chhattisgarh through Police Station – Lailunga, District Raigarh, Chhattisgarh. ... Respondent For Appellant :- Mr. Ajeet Kumar Yadav, Advocate. For Respondent-State :- Mr. Ashish Shukla, Additional Advocate General & Mr. Ashutosh Shukla, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (06.01.2025) 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, ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.01.08 10:48:15 +0530 2 CRA No. 1150 of 2019 is to the legality, validity and correctness of the judgment dated 22.06.2019 passed by the Additional Sessions Judge, Gharghoda, District Raigarh, Chhattisgarh, in Sessions Trial No. 11/2018 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 ₹ 500/-; in default of payment of fine amount to undergo additional rigorous imprisonment for two months and also convicted for offence under Section 201 of the IPC and sentenced to undergo imprisonment for 5 years with fine of ₹ 500/-; in default of payment of fine amount to undergo additional rigorous imprisonment for two months. Both the sentences were directed to run concurrently. Prosecution story:- 2. Between 14.04.2018 at about 10:00 pm to 15.04.2018 at about 6:20 pm at Auragudi forest, Jatara, Police Station Lailunga, District Raigarh, Chhattisgarh, the appellant caused the death of Kumari Yadav with the help of sharp edged stone and thereafter to screen himself from the legal punishment, hide the dead body of the deceased with leaves and thereby committed the offence. On the report of Nanak Singh complainant (not examined) dead body of the 3 CRA No. 1150 of 2019 Kumari Yadav was found on 15.04.2018 at 6:20 pm vide Ex.P/15 (unnumbered dehati nalsi). Unnumbered dehati merg intimation was was registered vide Ex.P/12. Merg intimation was registered vide Ex.P/14. On the basis of dehati nalsi FIR was registered vide Ex.P/16. Wheels of investigation started running and the appellant was arrested. Crime details form was prepared vide Ex.P/9. Inquest proceedings (Ex.P/5) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/11) proved by Dr. N. Lakra (PW-5) cause of death was haemorrhagic and neurogenic shock due to excessive bleeding and nature was homicidal. Pursuant to memorandum statement of the appellant (Ex.P/11) weapon of offence i.e. two stones and T.V.S. bike & loincloth (ुሴगी) were seized vide Exs.P/2 & P/3, respectively. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (not exhibited) dated 28.07.2018 blood was found on one stone (article A), loincloth (ुሴगी) of the appellant (article C) and on the clothes of the deceased (articles D1, D2 & D3) and on the other stone (article B) & soil (article E) human blood was found. As per query report (Ex.P/18) proved by Dr. Gulshan Sidar (PW-7), injuries which were 4 CRA No. 1150 of 2019 found over the body of the deceased could be caused by the seized two stones. 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 8 witnesses and exhibited 18 documents & FSL report, whereas, defence, in support of its case, has examined 1 witness, but not exhibited any 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 offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein 5 CRA No. 1150 of 2019 questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 6. Mr. Ajeet Kumar Yadav, 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 theory of last seen together, the appellant has been convicted for offences in question whereas, as per statement of Champa Yadav (PW- 2), daughter of the deceased, Stifan Tigga (PW-1) was also present in the house of the deceased, but PW-1 has not supported the case of the prosecution and further, it has not been corroborated by other piece of evidence and only on the basis of theory last seen together which is also doubtful the appellant could not be convicted that too for offence under Section 302 of the IPC and even otherwise, there is a considerable time gap of about 25 hours when the appellant was seen last with the deceased and when the dead body of the deceased was found and, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt and the instant appeal deserves to be allowed. 6 CRA No. 1150 of 2019 7. Per contra, Mr. Ashish Shukla and Ashutosh Shukal, learned State counsel, support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt. They also submit that on the weapon of offence i.e. stones and also on the loincloth of the appellant, which were seized pursuant to memorandum statement of the appellant, human blood and blood, respectively, was found in the FSL report dated 28.07.2018 and, therefore, the conviction of the appellant is well merited and the instant appeal deserves to be dismissed. 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 relying upon the postmortem report (Ex.P/11) proved by Dr. N. Lakra (PW-5), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse 7 CRA No. 1150 of 2019 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 theory of last seen together which the trial Court has found established on the basis of statement of Champa Yadav (PW-2), daughter of the deceased, and further on the fact that pursuant to memorandum statement of the appellant weapon of offence i.e. two stones and on the loincloth of the appellant were seized and on which in the FSL report human blood and blood, respectively, was found. 12. Now, question for consideration would be whether the trial Court is justified in convicting the appellant on the basis of last seen together? 13. At this stage, it would be appropriate to notice the relevant decisions qua the theory of last seen together. 8 CRA No. 1150 of 2019 14. In the matter of Kanhaiya Lal v. State of Rajasthan1, 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 Rajasthan2. 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.” 1 (2014) 4 SCC 715 2 (2010) 15 SCC 588 9 CRA No. 1150 of 2019 15. In the matter of Anjan Kumar Sarma v. State of Assam3, 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 Police4, 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 3 (2017) 14 SCC 359 4 (2018) 16 SCC 161 10 CRA No. 1150 of 2019 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 another5, 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. 5 (2007) 3 SCC 755 11 CRA No. 1150 of 2019 18. 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 from the statement of Champa Yadav (PW-2), daughter of the deceased, that on 14.04.2018 at about 5:00 pm the appellant came to the house of the deceased and took her mother (deceased) on his two wheeler. She has also stated that the deceased had relationship other than marriage with the appellant, whereas, the dead body of the deceased was recovered on 15.04.2018 at about 6:30 pm vide Ex.P/15 (dehati nalsi) with a time gap of 25 hours and, therefore, there is considerable time between the appellant and the deceased were seen together and the proximate time of crime. However, it is also pertinent to mention here that as per the statement of Champa Yadav (PW-2) on the date when her mother had gone with the appellant i.e. 14.04.2018, Stifan Tigga (PW-1) was also present in the house, but PW-1 has not supported the case of the prosecution and did not state that the appellant had taken the deceased along with him. As such, the statement of PW-2 is untrustworthy and, therefore, we do not affirm the finding of the trial Court in this regard to base the conviction of the appellant that too for offence under Section 302 of the IPC. 12 CRA No. 1150 of 2019 19. Further in shape of corroboration, the prosecution has alleged that pursuant to memorandum statement of the appellant two stones and loincloth of the appellant were seized and as per the FSL report dated 28.07.2018 human blood was found on one stone (article B) and on the other stone (article A) & loincloth (article C) blood was found. However, the trial Court in paragraph No.22 of its judgment has clearly recorded a finding that at the time of seizure, which was made pursuant to memorandum statement of the appellant, the presence of the appellant is not established. 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, 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 6 ]. 20. Furthermore, it is the case of the prosecution that the appellant and the deceased were in relationship other than marriage, except this fact nothing has been brought on record by the prosecution to prove the clear motive of 6 (2011) 11 SCC 724 13 CRA No. 1150 of 2019 offence for causing death of Kumari Yadav to prove its case beyond reasonable doubt. Conclusion:- 21. In view of the aforesaid discussion and analysis, we are of the considered view that the appellant could not be convicted only on the basis of theory of last seen together which is untrustworthy and even otherwise, seizure pursuant to memorandum statement of the appellant and the motive as well are of no use to the prosecution as the prosecution has failed to discharge its primary burden of proving its case 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 v. State of Maharashtra 7 , 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 22.04.2018. Accordingly, the appellant be released from jail forthwith, if not required any other matter. 22. This criminal appeal is allowed. 7 (1984) 4 SCC 116 14 CRA No. 1150 of 2019 23. 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) (Sanjay Kumar Jaiswal) Judge Judge Ankit