1 2025:CGHC:30858-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1226 of 2017 {Arising out of judgment dated 26.07.2017 passed in Sessions Trial No.04/2017 by the learned Third Additional Sessions Judge, Bastar, Place Jagdalpur} 1- Rahul @ Bittu Tiwari, S/o. Pramod Kumar Tiwari, Aged About 28 Years, R/o. Dharampura No.-1, Jagdalpur, Police Station Kotwali Jagdalpur, District Bastar, Chhattisgarh. 2- Kumbhakaran Nishad, S/o. Dhansingh Nishad, Aged About 32 Years, R/o. Dharampura No.-1, Jagdalpur, Police Station Kotwali Jagdalpur, District Bastar, Chhattisgarh. ... Appellants versus State Of Chhattisgarh, Through The Police Station Kotwali Jagdalpur, District Bastar, Chhattisgarh. ... Respondent For Appellants : Mr. S.C.Verma, Senior Advocate with Mr. Manharan Lal Sahu, Advocate For Respondent : Mr. Amit Buxy, Panel Lawyer ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.07.09 15:21:26 +0530 2 (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (07.07.2025) Sanjay K. Agrawal, J. 1. The two appellants herein Rahul @ Bittu Tiwari (A-1) & Kumbhakaran Nishad (A-2) had preferred this criminal appeal under Section 374(2) of Cr.P.C. calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 26.07.2017, passed by the learned Third Additional Sessions Judge, Bastar, Place Jagdalpur, in Sessions Trial No.04/2017, by which they have been convicted and sentenced as under : CONVICTION SENTENCE U/s. 302 of I.P.C. : Imprisonment for life and fine of Rs.1000/- each, in default of payment of fine, 1 month’s additional rigorous imprison- ment. U/s. 201 of I.P.C. : Simple Imprisonment for 1 year and fine of Rs.1000/- each, in default of payment of fine, 1 month’s additional rigorous imprisonment. Both the sentence to run concurrently. 3 2. Case of the prosecution, in short, is that, on 02.11.2016 at 11:30 A.M. the two appellants herein assaulted Vikash Kumar Sonwani (now deceased) and thrown the dead body to Dalpat Sagar lake and thereby, committed the aforesaid offences. The missing report was lodged by father of deceased Rameshwar Sonwani (PW-2) vide Ex.P-7. Thereafter, on 04.11.2016 at 11:00 A.M., the dead body of deceased was noticed in Dalpat Sagar lake and Dehati Merg was registered vide Ex.P-6, FIR was lodged vide Ex.P-21, Inquest was conducted vide Ex.P-2 and dead body of deceased Vikash Kumar Sonwani was subjected to post-mortem, which was conducted by Dr. Kiran Patil (PW-14) who proved the post-mortem report vide Ex. P-31, in which, seven injuries were found over the body of the deceased and cause of death was stated to be head injury and the manner of death as per post-mortem is accidental. After due investigation, the appellants were charge-sheeted for the aforesaid offences before the jurisdictional criminal court, which 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 not committed any offence and they have been falsely implicated. 4 3. In order to bring home the offences, prosecution examined as many as 14 witnesses and exhibited 33 documents and the appellants-accused 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 this judgment against which the present appeal has been preferred. 5. Mr. S.C.Verma, learned senior counsel along-with Mr. Manharan Lal Sahu, learned counsel for the appellants, would submit that the theory of last seen together is not established. He would further submit that Prakash @ Golu, who organized the party where the appellants and deceased were present, has been examined as PW-11, but he has not supported the case of the prosecution and only on the shirt of deceased, human blood was found, but the blood group could not be ascertained. It is again submitted that Gaurav Yadav (PW-5) and Rajendra Mahulkar (PW-7) both have turned hostile and they have not supported the case of the prosecution. As such, 5 the prosecution has failed to establish the offences beyond reasonable doubt and, therefore, the appellants are entitled for acquittal and the appeal deserves to be allowed. 6. On the other hand, Mr. Amit Buxy, 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 appellants for the aforesaid offences and, as such, the appellants are 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 Vikash Kumar Sonwani was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-31) proved by Dr. Kiran Patil (PW-14), according to which, seven injuries were found over the body of the deceased and cause of death was stated to be head injury, which in our considered opinion is a correct finding of fact based on evidence available on record, it is 6 neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 9. The case of the prosecution is mostly 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 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: 1 (1984) 4 SCC 116 2 (1973) 2 SCC 793 7 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.” 10. The trial Court has culled out the following four incriminating circumstances in para 37 of its judgment, which states as under : “(1). e`rd dks vkjksihx.k ds lkFk vafre :i ls ns[kk x;kA (2). ?kVuk fnukad dks izdk’k us tUe fnol dk ikVhZ fn;k Fkk ftlesa vkjksihx.k ,oa e`rd mifLFkr FksA (3). vkjksihx.k us mDr ikVhZ esa 'kjkc ihus ds fookn ij e`rd ls ekjihV fd;s ftlls vR;f/kd [kwu cgdj e`rd ds 'kVZ esa yxk FkkA 8 (4). xkSjo ;kno us jktsUnz ekgqydj firk lq/kkdj ds ?kj ls 'kVZ ekaxdj yk;k ftls vkjksihx.k us e`rd dks iguk;k FkkA ” 11. In order to find out the correctness of the findings recorded by the trial Court for convicting the appellants for the aforesaid offences, we will discuss each of incriminating circumstances one by one. 12. The first incriminating circumstance found proved by the trial Court is that the appellants were lastly seen with the deceased on 02.11.2016. At this stage, it would be appropriate to notice the decisions with regard to theory of last seen together rendered by the Supreme Court. 13. 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 last seen in the company of the accused is not established beyond reasonable doubt. 3 (1991) 3 SCC 27 9 14. 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.” 15. 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 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 4 1994 Supp (2) SCC 372 5 (2007) 3 SCC 755 10 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 was no possibility of any intrusion to that place by any third 11 party, then a relatively wider time gap would not affect the prosecution case. ” 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 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 6 (2018) 16 SCC 161 12 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. 18. Now, coming to the facts of the case, PW-1 (Sumit Sahu), PW-4 (Sandeep Pille), PW-6 (Somesh Panigrahi) & PW-11 (Prakash Jha) they are the witnesses of last seen together but they have turned hostile and have not supported the case of the prosecution. 19. The trial Court has relied upon the confessional panchnama, which is alleged to have been confessed by the appellant (A-1) by Ex.P-13 and appellant (A-2) by Ex.P-12. In this regard, the trial Court in para 36 of its judgment only recorded a finding that no recovery has been made pursuant to confessional 7 (2007) 3 SCC 755 13 panchnama and the statement made before the police for commission of offence is inadmissible in evidence under Section 25 of the Indian Evidence Act. Therefore, the trial Court has committed grave error by relying upon the confessional panchnama vide Ex.P-12 & Ex.P-13, which is inadmissible in evidence. Furthermore, the appellants and deceased were lastly seen together on 02.11.2016 at 11:30 A.M. and the dead body was recovered on 04.11.2016 at about 11:00 A.M. vide Ex.P-19 and, as such, there is more than 48 hours time gap between the last seen together of appellants with deceased and the date and 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 as held in Navaneetha-krishnan (supra). As such, the first incriminating circumstance is not established. 20. The second incriminating circumstance is that on the date of offence, Prakash Jha (PW-11) has organized his birthday party in which the appellants and deceased were also present. Prakash Jha @ Golu (PW-11) has clearly stated that his date of birth is 23rd November, 1982 and on the date of offence i.e. 14 02.11.2016, he did not celebrate his birthday and he did not offer any party to his friends and no such assault was made in his presence to deceased Vikash Sonwani. It is also stated that his nick name is Golu. As such, this incriminating circumstance is also not established and finding recorded in this regard is liable to be set aside. 21. The third incriminating circumstance is that the appellants in the said party had assaulted Vikash Sonwani by which his blood was oozing and his shirt was stained with the blood. However, as per the FSL report (Ex.P-29) only human blood was found in the shirt and blood group could not be ascertained and merely on that basis, the appellants could not be convicted in light of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh & Anr.8 22. The last incriminating circumstance is that Gaurav Yadav (PW-5) has brought shirt from the house of Rajendra Mahulkar (PW-7) to which the appellants had wore to the deceased. However, PW-5 & PW-7 both have turned hostile and they have not supported the case of the prosecution. Gaurav Yadav (PW-5) has also said in his statement that he 8 (2019) 7 SCC 781 15 has not seen the deceased Vikash Sonwani in the party. In that view of the matter, this incriminating circumstance is also not established. 23. In view of the foregoing analysis, we are of the considered opinion that the prosecution has failed to bring home the offences beyond reasonable doubt, the appellants are entitled for acquittal and the appeal deserves to be allowed. Accordingly, the impugned judgment of conviction and order of sentence dated 26.07.2017 is hereby set aside and the appellants stand acquitted giving them benefit of doubt from the charges framed against him for the aforesaid offences. The appellants are already on bail, they need not surrender; however, their bail bonds 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. 24. 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