1 CRA No. 1791 of 2019 2025:CGHC:3078-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1791 of 2019 (Ari sing out of judgment dated 27.08.2019 passed in Sessions Trial No.23/2019 by the 5 th Additional Sessions Judge, Bilaspur, District Bilaspur, Chhattisgarh. )  Dilip Yadav S/o. Ramfal Yadav, aged about 35 years, R/o. Chilhati, P.S. Sarkanda District Bilaspur, Chhattisgarh. ... Appellant versus  State of Chhattisgarh through – P.S. Sarkanda, District Bilaspur, Chhattisgarh. .. Respondent For Appellant :- Mr. Pawan Shrivastava, Advocate. For Respondent :- Mr. Sharad Mishra, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (17.01.2025) 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 ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.01.27 12:09:51 +0530 2 CRA No. 1791 of 2019 dated 27.08.2019 passed by the 5th Additional Sessions Judge, Bilaspur, District Bilaspur, Chhattisgarh, in Sessions Trial No. 23/2019 by which the 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 simple imprisonment for one month. Prosecution story:- 2. On 17.10.2018 at about 1:45 pm at village Chilhati, behind the chicken shop of Ramzan, Police Station Sarkand, District Bilaspur, Chhattisgarh, the appellant assaulted his friend Rajesh Kashyap, with sharp edged weapon i.e. axe (ग़቟सा/कቈኋ) on his head and neck, by which he suffered grievous injuries and died and thereby committed the aforesaid offence. 3. Further case of the prosecution is that on 17.10.2018 at about 3:00 complainant Seetaram (PW-5), brother of the deceased, reported the matter to the police that he is working as a watchman in the trolley factory of Khan. Today i.e. 17.10.2018 when he was taking rest after having his lunch at about 2:00 pm one villager Kallu Yadav (PW-2) 3 CRA No. 1791 of 2019 informed in the factory that the appellant has caused the murder of Rajesh Kashyap behind the chicken shop of Ramzan, then he went to the spot and after reaching on the spot he saw the dead body and also village Sarpanch and villagers informed him that at about 1:45 pm after causing the murder of Rajesh Kashyap, the appellant had absconded from the spot, pursuant to which merg intimation and FIR were registered vide Exs.P/7 & P/8, respectively. Wheels of investigation started running and the appellant was arrested. Spot map 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 (Exs.P/16 & P/16A) proved by Dr. S.N. Gole (PW-12) cause of death was cardio-respiratory arrest with hemorrhagic shock due to cut-throat injury and head injury by sharp, hardened and heavy objects and homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P/12), motorcycle was seized vide Ex.P/13 and blood stained clothes of the appellant and weapon of offence i.e. axe (ग़቟सा/कቈኋ) were seized vide Ex.P/14. Other articles were also seized. Seized articles were sent for chemical analysis to FSL. As per FSL report (Ex.P/23) on the clothes of the deceased (articles A & B) 4 CRA No. 1791 of 2019 and on the clothes of the appellant (articles E1 to E4) human blood was found and on the weapon of offence i.e. axe (ग़቟सा/कቈኋ) (article F), kada [bracelet (article E5)] of the appellant and mala of the appellant blood was found. 4. After due investigation, appellant was charge-sheeted for the aforesaid offence 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. 5. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 15 witnesses and exhibited 24 documents, whereas, the appellant in defence has examined 2 witnesses and exhibited 2 documents. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. 6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has 5 CRA No. 1791 of 2019 been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 7. Mr. Pawan Shrivastava, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. He would also submit that the prosecution has failed to bring home the offence as the theory of last seen together has not been established. He would further submit that the prosecution has failed to prove the incriminating circumstances, culled out by the trial Court in paragraph No.14 of its judgment in light of the decision of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 1 . He further submits that only on the basis of surmises and conjectures the appellant has been convicted for offence in question, therefore, the appeal deserves to be allowed and the appellant is liable to be acquitted of charges on the basis of benefit of doubt. 8. On the other hand, Mr. Sharad Mishra, learned State counsel, would support the impugned judgment and submit that prosecution has been able to prove the offence 1 (1984) 4 SCC 116 6 CRA No. 1791 of 2019 beyond reasonable doubt. He would also submit that theory of last seen together has been found established and the motive of the offence has also been found proved by the trial Court. He would further submit that pursuant to memorandum statement of the appellant weapon of offence i.e. axe (ग़቟सा/कቈኋ) and clothes were seized on which in chemical examination blood and human blood were found in the FSL report (Ex.P/23), therefore, the trial Court has rightly convicted the appellant for the aforesaid offence. Thus, the instant appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely. Discussion & Analysis :- 10. 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 (Exs.P/16 & P/16A) proved by Dr. S.N. Gole (PW-12), 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 7 CRA No. 1791 of 2019 affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature. 11. Now, the question for consideration would be whether the appellant has assaulted the deceased? 12. 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 Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra) 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 2 (1973) 2 SCC 793 8 CRA No. 1791 of 2019 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.” 13. The trial Court has culled out the following incriminating circumstances in paragraph No. 14 of its judgment, which state as under:- “14. उपरो ्ሹ सिसाኋ᭏तो क आधारो परो इसा ्ቚकरोण ेሰ अभियो जन ቛኋरो ्ቚस्तो तो भिकयो गयो परिरोቝኌस्#भितोजन्यो साቌኚयो क परो&्ቌण भिकयो जएग। अभियो जन ቛኋरो अभियो ्ሹ क भि*रुኋ᭏ भिनቝኌ,नसि-सि.तो परिरोቝኌस्#भितोजन्यो साቌኚयो क अ*-बन सि-यो गयो है1 - 1. ेሰ2तोक क3 ेሰ2त्यो क3 ्ቚक2 भितो हैत्योत्ेሰक है न। 2. ेሰ2तोक क अभितोेሰ बरो ज&भि*तो अ*स्# ेሰ अभियो ्ሹ क सा# दे. जन। 3. अभियो ्ሹ क ेሰेሰ रोण्डेሰ क#न (सा8चन) ए* उसाक3 भिनशानदेहै& परो अपरोधा ेሰ ्ቚयो ्ሹ साेሰቇኍ&यो< क3 बरोेሰदेग& (ज቎ኍ&) तो# उनसा च ट आन साबधा& भिचभिकत्सा&यो साቌኚयो। 4. ज቎ኍशा दे *स्तो ओं ेሰ ेሰन* रो्ሹ क3 उपቝኌस्#भितो। 5. हैतो क।" 14. Now, we will discuss the above-stated incriminating circumstances one by one in light of the principles of law 9 CRA No. 1791 of 2019 laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhchand Sarda (supra). 15. The first incriminating circumstance 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. Motive of the offence:- 16. It is well settled that motive of the offence in case of circumstantial evidence is relevant fact under Section 8 of the Indian Evidence Act, 1872. 17. In serious offences like murder, the Court always searches for the motive and the motive always plays an important role. Motive is of great importance in cases based on circumstantial evidence, and there is absence of such motive, it is always a circumstance in favour of the accused and against the prosecution. Motive, however adequate, cannot sustain a criminal charge in absence of clear and 10 CRA No. 1791 of 2019 cogent evidence pointing to the guilt of the accused and motive alone can hardly be a ground for conviction in absence of any other circumstantial evidence. [See: Sampath Kumar v. Inspector of Police, Krishnagiri 3 ] 18. The trial Court has found established the motive of offence on the basis of statement of Rukmani (PW-6) who is sister- in-law of the deceased. The said witness in her statement before the Court has stated that the appellant had borrowed some money from Rajesh Kashyap and one year prior to the incident a dispute was arose between them regarding transaction of the money. She has been subjected to some extent of cross-examination, but nothing has been extracted to hold that she has falsely implicated the appellant in crime in question. Similarly, Seetaram (PW-5), brother of the deceased, has stated in his police statement (Ex. P-11) that two days prior to the incident, the appellant had quarrled with the deceased on account of previuos enminity between them. As such, the finding recorded by the trial Court that the appellant had strong motive to commit the murder of Rajesh Kashyap is duly established 3 (2012) 4 SCC 124 11 CRA No. 1791 of 2019 and we hereby affirm the said finding recorded by the trial Court. 19. Theory of last seen together:- On the basis of statements of Rukmani (PW-6), sister-in-law of the deceased and Shyama Bai (PW-7), wife of the deceased, the theory of last seen together has been found established by the trial Court. 20. Now, question for consideration would be whether the trial Court is justified in convicting the appellant on the basis of last seen together? 21. At this stage, it would be appropriate to notice the relevant decisions qua the theory of last seen together. 22. 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 4 (2014) 4 SCC 715 12 CRA No. 1791 of 2019 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 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.” 23. 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 5 (2010) 15 SCC 588 6 (2017) 14 SCC 359 13 CRA No. 1791 of 2019 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. 24. 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 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 7 (2018) 16 SCC 161 14 CRA No. 1791 of 2019 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.” 25. 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 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. 8 (2007) 3 SCC 755 15 CRA No. 1791 of 2019 26. Returning to the facts of the case in light of the decision of the Supreme Court in the above stated judgments, it is quite vivid from the statement of Rukmani (PW-6) in which she has clearly stated that the appellant and the deceased were friends and on the date of offence i.e., 17.10.2018, at about 1:00 pm, the appellant came to her house and took the deceased with him on his motorcycle and after half an hour her son Shiva (not examined) had received information about the murder of his uncle (deceased) on phone call which was made by Priyanshu (not examined), thereafter, she reached to the spot and saw the dead body of the deceased. Similarly, Shyama Bai (PW-7) in her statement before the Court has stated that on the date of offence i.e., 17.10.2018, at about 1:00 pm, when her husband (deceased) was sleeping, the appellant came to the house and asked the deceased to come with him and the deceased went along with the appellant on the appellant's motorcycle and after half an hour she got the news of murder of her husband. They have been subjected to some extent of cross examination, but nothing has been extracted to hold that they had not seen the appellant along with the deceased. As such, from the statements of Rukmani (PW-6) and Shyama Bai (PW-7), the theory of last- 16 CRA No. 1791 of 2019 seen together is clearly established as they had seen the appellant on the date of offence i.e., 17.10.2018, at about 1:00 pm, along Rajesh Kashyap (deceased) when they were going somewhere on the appellant’s motorcycle and after half an hour Rajesh Kashyap was found dead. Even otherwise, the time gap between the appellant and the deceased when they were last seen together and when the dead body of the deceased was found is too short i.e. half an hour and as such it can safely be held that it is none other than the appellant who has caused death of Rajesh Kashyap. 27. Now, we will consider the other corroborative piece of evidence on which the trial Court has relied upon to base the conviction of the appellant for offence under Section 302 of the IPC. 28. In shape of corroboration, the trial Court has held that pursuant to memorandum statement of the appellant (Ex.P/12), blood stained weapon of offence i.e. axe (ग़቟सा/कቈኋ) & blood stained clothes of the appellant were seized vide Ex.P/14 and his motorcycle was also seized vide Ex.P/13. Mukesh (PW-8) and Ramsagar Chandrakar 17 CRA No. 1791 of 2019 (PW-11), who are the memorandum and seizure witnesses, both have supported the case of the prosecution. Moreover, in the query report (Ex.P/17) proved by Dr. S.N. Gole (PW- 12), it has been opined that the injuries caused over the body of the deceased could be caused by the said seized axe (ग़቟सा/कቈኋ). Even otherwise, in corroboration, the trial Court has found proved that in the chemical analysis of the seized articles [FSL report (Ex.P/23)] blood was found on the axe (ग़቟सा/कቈኋ), bracelet and mala (string) of the appellant and human blood was found on the clothes of the appellant and deceased as well. As such, the seizure of the aforesaid incriminating articles pursuant to the memorandum statement of the appellant, on which blood and human blood have been found in the FSL report, also connects the appellant with the commission of the crime and, therefore, the finding of the trial Court in this regard also a correct finding of fact based on evidence available on record and we hereby also affirm the said finding of the trial Court. Conclusion:- 29. In view of the aforesaid discussion and analysis, firstly the nature of death of deceased to be homicidal in nature has 18 CRA No. 1791 of 2019 been duly found to be established from the evidence of Medical Officer, PW-12 Dr. S.N. Gole. The motive of the offence also stands proved on the basis of the statement of PW-6 Rukmani as well as from the police statement of PW- 5 Seetaram. Further, the theory of last-seen together on the basis of the statements of PW-6 Rukmani and PW-7 Shyama Bai has also been found to be established beyond doubt. Similarly, on the incriminating articles i.e. axe (weapon of offence), bracelet and string, blood was found and on the clothes of the appellant, human blood was found in the FSL report (Ex. P-23) which also establishes the involvement of the appellant in the crime in question in shape of corroboration of the other incriminating circumstance which have been found proved and estalbshed. As such, in our considered opinion, the prosecution has discharged its primary burden of proving its case and also completed the chain of circumstances in light of decision of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra). 30. In that view of the matter, the trial Court is absolutely justified in convicting the appellant for offence under Section 302 of the IPC and we 19 CRA No. 1791 of 2019 do not find any merit in the instant appeal and appeal deserves to be and is accordingly, dismissed. 31. The Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal under Article 136 of the Constitution of India before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ankit