(Cr.A.Nos.1181/2014 & 1033/2014) 2025:CGHC:15651-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1181 of 2014 {Arising out of judgment dated 24-9-2014 in Special Sessions Trial No.24/2012 of the Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Koriya, Baikunthpur} 1. Prakash Singh, S/o Chhotelal, Aged about 34 years, 2. Arvind Singh, S/o Chhotelal, Aged about 32 years, 3. Jambala Singh, S/o late Dharmajeet Singh, Aged about 62 years 4. Shiv Kumar, S/o Ramsay, Aged about 57 years, 5. Ganeshiya Bai, W/o Shivkumar Gond, Aged about 30 years, All are resident of Chanwaridand, Police Station Khadgawan, Civil and Revenue District Koriya, Chhattisgarh --- Appellants Versus The State of Chhattisgarh, through the Station House Officer, Police Station Khadgawan, District Koriya, Chhattisgarh --- Respondent For Appellants : Mr. Jugal Kishore Gilda, Senior Advocate with Mr. Syed Majid Ali and Mr. Avinash Singh, Advocates. For Respondent/State : Mr. Arvind Dubey, Government Advocate. SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2025.04.07 14:58:58 +0530 (Cr.A.Nos.1181/2014 & 1033/2014) AND CRA No. 1033 of 2014 Sokhlal (dead) through LRs 1. Kailasho, Wd/o late Sokhlal, Aged about 50 years, 2. Devnarayan, S/o late Sokhlal, Aged about 32 years, 3. Ayodhya Prasad, S/o late Sokhlal, Aged about 21 years, 4. Anita, D/o late Sokhlal, Aged about 18 years, All are R/o Village Pondidih, P.S. Khadgawan, District Koriya, Chhattisgarh 5. Kavita @ Sunita, D/o late Sokhlal, Aged about 28 years, R/o Siroyakhoh, Nagpur, District Koriya, Chhattisgarh 6. Savita, D/o late Sokhlal, Aged about 23 years, R/o Pondikala, P.S. Pasan, District Korba, Chhattisgarh --- Appellants versus State of Chhattisgarh, Through Police Station Khadgawan, Civil and Revenue District Koriya, Chhattisgarh --- Respondent For Appellants : Ms. Yashasvi Singhi, Advocate on behalf of Mrs. Hamida Siddique, Advocate. For Respondent/State : Mr. Arvind Dubey, Government Advocate. Division Bench: - Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Deepak Kumar Tiwari, JJ. Judgment On Board (03/04/2025) Sanjay K. Agrawal, J. (Cr.A.Nos.1181/2014 & 1033/2014) 1. Since both the above criminal appeals have arisen out of one and same judgment dated 24-9-2014 passed by the Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Koriya, Baikunthpur in Special Sessions Trial No.24/2012, and since common question of fact and law is involved in both the appeals, they have been clubbed together, heard together and are being disposed of by this common judgment. 2. Prakash Singh (A-1), Arvind Singh (A-2), Jambala Singh (A- 3), Shivkumar (A-5) & Ganeshiya Bai (A-6) have preferred Criminal Appeal No.1181/2014, whereas Sokhlal (A-4) (now deceased), whose legal heirs have been brought on record, has preferred Criminal Appeal No.1033/2014 under Section 374(2) of the CrPC calling in question legality, validity and correctness of judgment dated 24-9-2014 passed by the Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Koriya, Baikunthpur in Special Sessions Trial No.24/2012, by which all the appellants have been convicted for offence under Sections 302 read with Section 34, 201 read with Section 34 & 120B read with Section 34 of the IPC and sentenced to (Cr.A.Nos.1181/2014 & 1033/2014) undergo imprisonment for life and pay fine of 1,000/- each, ₹ in default, additional rigorous imprisonment for six months; rigorous imprisonment for seven years and pay fine of ₹ 1,000/- each, in default, additional rigorous imprisonment for six months; and imprisonment for life and pay fine of ₹ 1,000/- each, in default, additional rigorous imprisonment for six months, respectively, with a direction that all the sentences shall run concurrently. However, the appellants have been acquitted of the charge under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. Case of the prosecution, in short, is that prior to 3 p.m. of 2- 10-2011, at Podidih Bhata Forest, Near Gurdhela Nala, Police Station Khadgawan, District Koriya, all the appellants conspired together and caused the death of Sunita Singh (deceased) by strangulating her knowing well that she is a member of Scheduled Tribe and thereafter, in order to screen themselves from the offence, they hanged her dead body, and thereby committed the offence. Marg was registered vide Ex.P-1 on 2-10-2011 at 5 p.m. by Satyanarayan (PW-1), Village Sarpanch, informing the police that one Rajesh (Cr.A.Nos.1181/2014 & 1033/2014) Pandey, at about 3 p.m., informed him that one girl, whose age is about 17-18 years, was found dead in hanging position. Identification of the dead body was done by Tribhuwan (PW- 3) – father of the deceased, vide Ex.P-2. Inquest was conducted vide Ex.P-4. First postmortem was conducted on 3-10-2011 by Dr. Ashwini Patel, who has not been examined, vide Ex.P-11 and cause of death was stated to be shock due to antemortem hanging. Query report regarding cause of death was obtained vide Ex.P-22 on 8-10-2011 according to which cause of death is due to antemortem hanging, which may be suicidal. Similarly, query report regarding ligature mark on neck was also obtained vide Ex.P-23 on 24-11-2011 in which explanation has been given by the doctor that whole body was swelled and black in colour due to putrefaction process and ligature mark is not well to differentiate from black colour skin and ligature mark. Query report regarding injury on ribs and also about death, whether it is murder or suicide, has also been obtained vide Ex.P-27 on 11-11-2011, according to which ribs fracture cannot be well defined during postmortem and no any calot’s are present in left side of chest region, and nature of death may be suicidal. Second postmortem was conducted vide Ex.P-12 on 18-10-2011 in (Cr.A.Nos.1181/2014 & 1033/2014) which it has been mentioned that cause and mode of death cannot be given as the putrefaction advanced, however, dangerous antemortem left sided ribs injury found. Query report by a team of three doctors was obtained vide Ex.P-13 on 20-12-2011 according to which injuries were antemortem in nature and cause of death may be homicidal. Further query report whether injuries found on the dead body may be caused at the time of its exhumation, has been obtained vide Ex.P-15 on 11-11-2011 in which it has been opined that injury would not come while digging the body and also not due to decomposition of the body and regarding cause of death, it has been opined that the body is in decomposed position, hence it cannot be possible to declare death as homicidal or suicidal. Query report regarding injuries was also obtained vide Ex.P-16, which states that fracture of ribs are antemortem injuries and dangerous to life. FIR was registered vide Ex.P-25 on 24-12-2011 and call details were obtained vide Ex.P-40. Statements of Anup Pratap (PW-9) & Kashiram (PW-10) under Section 161 of the CrPC were recorded on 12-6-2012 and statement of Bali Kumar (PW-14) under Section 161 of the CrPC was recorded on 3-7-2012. They are the witnesses of last seen together. Page 7 of 21 (Cr.A.Nos.1181/2014 & 1033/2014) 4. Statements of witnesses were recorded under Section 161 of the CrPC. Thereafter, after usual investigation, the appellants were charge-sheeted before the jurisdictional criminal court and the case was committed to the Court of Sessions from where the learned Special Judge received the case on transfer for hearing and disposal in accordance with law. 5. In order to bring home the offence, the prosecution has examined as many as 24 witnesses and brought on record 40 documents Exs.P-1 to P-40 apart from Articles A-1 to A-5. The accused / appellants abjured the guilt and entered into defence by stating that they have not committed the offence and they have been falsely implicated. They have not examined any witness, however, exhibited 12 documents Exs.D-1 to D-12 in support of their defence. 6. The trial Court after appreciating oral and documentary evidence, convicted and sentenced the appellants in the manner mentioned in the opening paragraph of this judgment against which these appeals have been preferred. 7. Mr. Jugal Kishore Gilda, learned Senior Counsel appearing on behalf of the appellants in Cr.A.No.1181/2014, would submit as under: - (Cr.A.Nos.1181/2014 & 1033/2014) 1. Motive of the offence, allegedly, that accused/appellant Prakash Singh (A-1) had love affair with deceased Sunita is not established at all and even otherwise, motive of the offence cannot be made the sole basis of conviction. 2. Furthermore, theory of last seen together of the appellants and the deceased is not established beyond reasonable doubt. Statements of the witnesses of last seen together namely, Anup Pratap (PW-9), Kashiram (PW-10) & Bali Kumar (PW-14) were recorded after an enormous delay of 9 months, as their statements under Section 161 of the CrPC were recorded on 12-6-2012 & 3-7-2012, whereas the incident took place on 2-10-2011 and the FIR was registered with a huge delay of more than two months on 24-12-2011 vide Ex.P-25, even the date of last seen together is not mentioned in the statements of the alleged witnesses of last seen together. Furthermore, time-gap between the appellants and the deceased were last seen together and the deceased was found dead is too long that it cannot be believed by any stretch of imagination that the appellants are the (Cr.A.Nos.1181/2014 & 1033/2014) authors of the crime, more particularly, when no corroborative piece of evidence has been brought on record. The Supreme Court in the matter of Navaneethakrishnan v. State by Inspector of Police1 had already held that conviction cannot be based solely on the theory of last seen together and it requires corroboration, which is absolutely missing in the present case. 3. The trial Court has placed reliance on call details Ex.P- 40, whereas investigating officer Arvind Kaul (PW-23) has clearly stated in his evidence that no documents have been filed supporting the case that mobile No.9584210271 was owned by deceased Sunita. Even otherwise, no certificate under Section 65B of the Evidence Act, 1872 has been brought on record which is absolutely necessary in view of the decision of the Supreme Court in the matter of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and others2. 1 (2018) 16 SCC 161 2 (2020) 7 SCC 1 (Cr.A.Nos.1181/2014 & 1033/2014) 4. In that view of the matter, the appeal deserves to be allowed and the appellants are entitled for acquittal on the basis of benefit of doubt. 8. Ms. Yashasvi Singhi, Advocate, appearing on behalf of Mrs. Hamida Siddique, learned counsel for the legal heirs of accused/appellant Sokhlal (A-4) (now deceased) in Cr.A. No.1033/2014, would submit that she would adopt the arguments of learned Senior Counsel Mr. Gilda. 9. Mr. Arvind Dubey, learned State counsel, would submit that the theory of last seen together is duly established by Anup Pratap (PW-9), Kashiram (PW-10) & Bali Kumar (PW-14) and furthermore, motive of the offence that Prakash Singh (A-1) had love affair with deceased Sunita is clearly established, as A-1 was already married, and, therefore, he along with other co-accused persons murdered deceased Sunita. As such, both the appeals deserve to be dismissed. 10.We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 11.Case of the prosecution is not based on direct evidence. It is based on circumstantial evidence. The prosecution was (Cr.A.Nos.1181/2014 & 1033/2014) required to establish the five golden principles which constitute the panchsheel of a case based on circumstantial evidence as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra3 in which it has been held 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 Maharashtra4 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, 3 (1984) 4 SCC 116 4 (1973) 2 SCC 793 (Cr.A.Nos.1181/2014 & 1033/2014) (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.” 12.The trial Court has found following three circumstances established: 1. Motive of offence that Prakash Singh (A-1) had love affair with deceased Sunita, which led to her murder, has been established. 2. Theory of last seen together of the appellants and the deceased is also established on the basis of the evidence of the witnesses of last seen namely, Anup Pratap (PW- 9), Kashiram (PW-10) & Bali Kumar (PW-14). 3. Call details Ex.P-40 establish that Prakash Singh (A-1) and deceased Sunita had just before her disappearance, called each other. 13.We will consider the above incriminating circumstances one by one to decide as to whether the trial Court has rightly convicted all the appellants for offence under Section 302 of the IPC. Page 13 of 21 (Cr.A.Nos.1181/2014 & 1033/2014) 14. First of all, the trial Court has recorded a finding that there was love affair between Prakash Singh (A-1) and deceased Sunita which led to murder of Sunita, which is also not seriously disputed on behalf of the appellants, but there is no evidence on record that A-1 was married. However, it is well settled that only on the basis of motive, accused cannot be convicted for offence, motive is one of the incriminating circumstances, but that cannot be made sole basis for conviction of offence under Section 302 of the IPC (see Sampath Kumar v. Inspector of Police, Krishnagiri5). Theory of Last Seen Together 15.The trial Court has held that the theory of last-seen together is proved by the witnesses of last seen namely, Anup Pratap (PW-9), Kashiram (PW-10) & Bali Kumar (PW-14). 16.Anup Pratap (PW-9) has been cited as witness of last-seen of Ganeshiya Bai (A-6) and deceased Sunita. The date when deceased Sunita was last seen is 28-9-2011 and her dead body was recovered on 2-10-2011. However, the statement of Anup Pratap (PW-9) under Section 161 of the CrPC was admittedly recorded on 12-6-2012. In his statement before the Court, he has stated that there exists a temple of Kali Mai 5 (2012) 4 SCC 124 (Cr.A.Nos.1181/2014 & 1033/2014) at Village Banwaridand, Singhpur, where he used to perform puja and in the month of kunwar (Ashwin) of the preceding year at 10 p.m., he had seen deceased Sunita along with Ganeshiya Bai (A-6) going towards chapar. However, in paragraph 7 of his statement, he has further stated that there is land dispute between him (this witness Anup Pratap – PW- 9) and Ganeshiya Bai (A-6). Furthermore, Anup Pratap (PW- 9) has not seen the other accused persons accompanying the deceased and there is considerable delay of eight months in recording the statement of Anup Pratap (PW-9) under Section 161 of the CrPC, as his statement was recorded after almost a delay of 7-8 months and as such, reliance cannot be placed on his statement to hold that he has seen Ganeshiya Bai (A-6) along with the deceased together lastly on the date and time of offence. 17.The next witness of last-seen is Kashiram (PW-10), whose statement under Section 161 of the CrPC, has also been recorded with a delay of 7-8 months on 12-6-2012. He has stated in his statement before the Court that he used to stay in the house, which was constructed for safeguarding iron bars, cement, etc., and which is situate in front of the house (Cr.A.Nos.1181/2014 & 1033/2014) of Jambala (A-3); on the fateful night, deceased Sunita along with Ganeshiya Bai (A-6) came to the house of Jambala and after some time, cry of one girl came from his house and thereafter, at 1 O’ clock in the mid night, Prakash Singh (A-1), Arvind Singh (A-2) & Shiv Kumar (A-5) have gone along with the girl, but he could not remember the name of the servant of Jambala who is husband of Ganeshiya and they had gone towards nala on the motorcycle. After a long time, A-1, A-2 & A-5 came back, but the girl did not come with them. He has further stated that elder son of Jambala namely Prakash (A-1) had illicit relationship with that girl. However, in the statement before the police (Ex.D-12), he has taken U-turn and has clearly stated that he has not seen Ganeshiya (A-6) and Sunita (deceased) in the house of Jambala (A-3) and also stated that he has not seen Prakash Singh (A-1), Arvind Singh (A-2) & Shiv Kumar (A-5) while taking Sunita (deceased) on the motorcycle, however, on suggestion by the court, he has stated that he had seen A-1, A-2 & A-5 with Sunita on the motorcycle. As such, he had completely taken U-turn to the version which he had made in the statement recorded by the police under Section 161 of the CrPC vide Ex.D-12. Therefore, it cannot be held that he is the witness of last-seen (Cr.A.Nos.1181/2014 & 1033/2014) of the appellants and the deceased together and reliance cannot be placed on his evidence for recording conviction under Section 302 of the IPC. 18.The third and last witness of last-seen evidence relied upon by the prosecution is Bali Kumar (PW-14). Admittedly, his statement under Section 161 of the CrPC has been recorded on 3-7-2012 with a delay of eight months and there is no explanation forthcoming either from the investigating officer or by way of other evidence as to why there is such an enormous delay in recording the statement under Section 161 of the CrPC, however, on being asked from Investigating Officer Sanjay Dhruv (PW-21), he has stated that the statement of Bali Kumar (PW-14) was recorded on 3-7-2012. Bali Kumar has stated before the Court that on the fateful day at about 4 p.m., he along with one Ram Prasad (not examined) had gone to the forest for collecting firewood and while returning, at about 5-6 p.m., they had seen that fishes were bouncing in the Gudhbhela nala on which they kept the firewood in the house and after taking dinner, they went to the nala to catch fish, at about 12-1 a.m. in the mid night, they had seen one motorcycle coming towards them, they hid (Cr.A.Nos.1181/2014 & 1033/2014) on the back of akol bushes and they had also seen that another motorcycle was also coming, the first motorcycle was being driven by Arvind (A-2), Sunita (deceased) sat on the middle and Shiv Kumar (A-5) sat on the back, whereas the second motorcycle was being driven by Sokhlal (A-4) (now deceased) and Jambala (A-3) was sitting as pillion rider. He has also stated that he had seen the persons sitting on the first motorcycle with the help of the headlight of the second motorcycle and the girl sitting in the middle of the first motorcycle was in unconscious condition. However, in paragraph 18, he has stated that the persons sitting on the motorcycle were not clearly visible, but they could identify them as they were from his village. He has also admitted that no light was there to identify the persons sitting on the second motorcycle. As such, considering the fact that there is eight months’ delay in recording the statement of Bali Kumar (PW-14) under Section 161 of the CrPC and further considering that it was dark night and he has allegedly identified the persons sitting on the first motorcycle with the help of headlight of the second motorcycle, that too in the late night at 12-1 a.m., as such, in absence of test identification parade, it would be risky to hold that Bali (Cr.A.Nos.1181/2014 & 1033/2014) Kumar (PW-14) had seen the appellants carrying deceased Sunita on the motorcycle. However, in this regard, recent decision of the Supreme Court in the matter of Boby v. State of Kerala6 may be noticed herein in which it has been held that the last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. If the gap between the time of last seen and the deceased found dead is long, then the possibility of other person coming in between cannot be ruled out. 19.Coming to the instant case, assuming Anup Pratap (PW-9), Kashiram (PW-10) & Bali Kumar (PW-14) had seen the appellants along with the deceased on the date and time of offence accepting the case of the prosecution for the sake of arguments it is believed that they had allegedly seen the deceased and the appellants together lastly on 28-9-2011, but dead body of the deceased was recovered on 2-10-2011 as recorded in the marg Ex.P-1 by Satyanarayan (PW-1), Village Sarpanch, informing the police that one Rajesh Pandey had 6 (2023) 15 SCC 760 (Cr.A.Nos.1181/2014 & 1033/2014) informed him that one girl, aged about 17-18 years, was found dead in the forest in hanging position, the time-gap between the alleged last-seen together of the appellants and the deceased and recovery of dead body, is more than 90 hours and thereby it cannot be held that the appellants are perpetrators of the offence. The Supreme Court in Navaneethakrishnan (supra) 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, which is absolutely missing in the instant case. 20.Lastly, the trial Court has relied upon Ex.P-40 – call details holding that mobile No.9584210271 was owned and possessed by Sunita – deceased on the date and time of offence and on 28-9-2011, from 8.54 p.m. to 9.18 p.m. accused / appellant Prakash Singh (A-1) has called eight times. However, Arvind Kaul (PW-23) has admitted in paragraph 3 as well as in paragraph 7 of his evidence that no document has been filed that such mobile number was owned by Sunita. Further, he has also admitted that on the basis of (Cr.A.Nos.1181/2014 & 1033/2014) call details Ex.P-40, it could not be said as to who had talked with whom on the said mobile number. Furthermore, no certificate under Section 65B of the Evidence Act has been filed by the prosecution to support the call details Ex.P-40 which was absolutely mandatory in view of the decision of the Supreme Court in Arjun Panditrao Khotkar (supra). 21.As such, the chain of circumstances is not complete as laid down by the Supreme Court in Sharad Birdhichand Sarda (supra) and therefore all the appellants are entitled for acquittal on the principle of benefit of doubt. 22.In that view of the matter, conviction and sentences imposed upon the appellants under Sections 302 read with Section 34, 201 read with Section 34 & 120B read with Section 34 of the IPC are set-aside and they are acquitted of the said charges on the ground of benefit of doubt. The appellants are on bail. They need not surrender. However, their bail bonds will remain in force for a period of six months in view of Section 437-A of the CrPC. 23.Both the appeals are allowed to the extent indicated herein- above. Page 21 of 21 (Cr.A.Nos.1181/2014 & 1033/2014) 24.Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) JUDGE JUDGE Soma