1 CRA No.1920 of 2022 2025:CGHC:57415-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1920 of 2022 1. Gitesh Bhaskar S/o Shri Nandu Bhaskar Aged About 23 Years R/o Karrepara, Nelsanar, Thana- Nelsanar, District : Bijapur, Chhattisgarh 2. Raju Atami S/o Shri Somlu Atamni Aged About 29 Years R/o Talabpara, Nelsanar, Thana Nelsanar, District : Bijapur, Chhattisgarh 3. Raghu Oyami Alias Kola S/o Shri Somlu Oyami Aged About 24 Years R/o Talabpara, Nelsanar, Thana Nelsanar, District : Bijapur, Chhattisgarh ... Appellant(s) versus State Of Chhattisgarh Through Police Station Nelsanar, District : Bijapur, Chhattisgarh ... Respondent(s) For Appellant : Mr. Bishnu Muni, Advocate For Respondent/State : Mr. S.S. Baghel, Dy. G.A. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Bibhu Datta Guru, Judge 26.11.2025 JYOTI SHARMA Digitally signed by JYOTI SHARMA Date: 2025.11.27 17:12:15 +0530 2 CRA No.1920 of 2022 This criminal appeal filed by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 11.10.2022, passed by the learned Additional Sessions Judge, Fast Track Special Court, Dantewada, C.G. in Special Sessions (POCSO) Case No. 35/2018, whereby the appellants/accused have been convicted for the offence and sentenced as under:- Conviction Sentence Under Section 376 (D), 302 r/w 201 & 34 of the IPC Imprisonment for life which shall mean imprisonment for remaining of natural life and fine of Rs. 11,000/- for each accused. 1. Facts of the case in brief is that a complaint was lodged on 08.10.2018 by Smt. B.N. Netam, (PW-12) stating that a deceased woman in a decomposed state was found in a newly constructed room of Kanya Residential School. Following this information, a case (No. 12/2018) was registered regarding the death of an unknown woman. During the investigation, the body was identified by relatives, and blood samples, pieces of the floor, cement, bricks containing blood, hair of the deceased, and beer bottles were seized. The left wrist of the deceased was missing at the scene. After completing the investigation, the appellants were arrested and a charge sheet was filed. 3 CRA No.1920 of 2022 2. The trial court has framed charges against the appellants for the aforementioned offence and the appellants abjured their guilt and pleaded innocence. 3. In order to establish the charge against the appellants, the prosecution examined as many as 16 witnesses and exhibited 73 documents. The statement of the appellants under Section 313 of Cr.P.C. was also recorded in which they denied the material appearing against them and stated that they are innocent and they have been falsely implicated in the case. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellants and sentenced them as mentioned in para 1 of the judgment. Hence, this appeal. 4. Learned counsel for the appellants submit that the impugned judgment of conviction is wholly unsustainable, as there is no evidence whatsoever connecting the appellants with the alleged offence and the entire prosecution case rests merely on conjectures and surmises. It is contended that there is no eyewitness to the incident and the prosecution has relied solely on the theory of last seen and circumstantial evidence, which too has completely failed to establish an unbroken chain pointing towards the guilt of the appellants. Learned counsel further submits that the medical evidence does not support the prosecution case, as the doctor has given no opinion regarding rape, nor is there any DNA report, blood group determination, or 4 CRA No.1920 of 2022 any sign suggestive of sexual assault, thereby demonstrating that the prosecution and investigation were conducted in a malicious and arbitrary manner. It is argued that no incriminating article or material was seized from the possession of the appellants. Also, looking to the entire evidence adduced by the prosecution, the alleged offence is not made out against the appellants and they have been falsely implicated in the present case. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside. 5. On the other hand, learned counsel for the State opposes the submissions made by the learned counsel for the appellants and submits that the prosecution has proved its case beyond reasonable doubt and the learned trial Court after considering the material available on record has rightly convicted and sentenced the appellants, in which no interference is called for. 6. We have heard the learned counsel for the parties and perused the record with utmost circumspection. 7. Now, the question which arises for consideration is, what are the circumstances which show that the victim was raped and murdered by the appellants/accused. 8. From the memorandum of Appellant No. 1, it is evident that on 04.10.2018 he, along with the deceased and her grandmother, had gone to the society to bring rice. He stated that he thereafter met his friends Raju Atami (appellant No. 2) and Raghu Oyami 5 CRA No.1920 of 2022 (appellant No. 3), and Raghu brought liquor which they consumed together. During drinking, Raghu mentioned that the deceased used to tease him by calling “Kolwa-Kolwa”, and Appellant No. 1 further stated that he was also in love with the deceased but she was allegedly involved with others; consequently, they planned to rape her. He stated that Appellant Nos. 2 and 3 went towards the pota cabin while he waited for the deceased on the way. When she arrived, he engaged her in conversation and sent her sister and friend to bring food. He further disclosed that he and the deceased consumed liquor and thereafter he took her behind the pota cabin where Appellant Nos. 2 and 3 were already present. He stated that the appellants, after gagging the deceased with her dupatta and scaling the wall, entered in an empty room of the pota cabin and committed rape on her one after another. He also stated that fearing that the deceased might disclose the incident to the villagers, Appellant No. 2 strangulated her, and believing she might still survive, Appellant No. 1 struck her head with a brick. Appellant No. 3, out of anger as the deceased allegedly teased him, cut her hand with the tangia he was carrying. 9. PW-1, the sister of the deceased, deposed that while she, along with her sister (the deceased) and their friends PW-8 & one another, was on the way to collect food from the Potacabin Ashram, the accused/appellant No. 1, Gitesh, met them and told her that he was speaking with her sister near the bridge and that 6 CRA No.1920 of 2022 they could proceed to collect the food. She further stated that upon their return, neither her sister nor the accused was present near the bridge. She added that they called out their names, but receiving no response and finding no one there, they returned home. 10. PW-4, the father of the deceased, deposed that about three to four months prior to the incident, his daughter had gone to the Potakebin Balika Ashram along with her sister and another girl, stating that they were going to collect leftover food for the pigs. He stated that his younger daughter returned at around 7:00 p.m., and upon being asked about the deceased, she informed him that the deceased had not returned. He further stated that as he was suffering from tuberculosis, he was unable to go out that night to search for his daughter. On the following day, he searched the village for her whereabouts. During the search, he also questioned Gitesh (appellant No. 1) regarding the deceased. According to him, appellant No. 1 told him that his daughter had gone to Bijapur. Relying on this information, he went to Bijapur to look for her but was unable to trace her there. He further stated that later he came to know that the body of a girl was lying in the Pota Cabin. Upon going to the Pota Cabin Ashram to verify, he found that the body was that of his daughter. 11. PW-8, friend of the deceased, stated that prior to the incident, she, the deceased and her sister were on their way to the Pota 7 CRA No.1920 of 2022 Cabin to collect leftover food for the pigs. On the way, they encountered accused Gitesh/ appellant No. 1, who began talking to the deceased. He then sent PW-8 and PW- 1 ahead to the Pota Cabin to bring the food. However, when they returned, neither the deceased nor Gitesh was present. 12. PW-17 Dr. Gyanendra Kumar stated that on examination of the body of the deceased, he found that face decomposed, orbital cavity filled with maggot, scalp hair loosen and pluckable, mouth filled with maggots, teeth loosen, nails fallen off, both upper and lower limb swollen, flexed at elbow and knee joint due to gas stiffening. Rigor mortis passed off, hypostasis disappears with decomposition. Skull sutures loosen, Abdomen distended, epidermis peeled off at places, degloving of right hands. Maggot size about 14-16 mm crawling all over body, and present on natural open cavity part. Clothing's are smudged with decomposed fluid. Foul smelling evident. A tattoo mark on flexure aspect of left forearm at middle 1/3 part and hand missing. Further, he stated that the following injuries were found:- a. A red-green-blue multicolour scarf encircled around neck, threes in turn, skin of that part preserved, underneath outward fractures of greater horn of hyoid bone evident. b) Left forearm at the junction of middle and lower 1/3 part, amputated, radius and ulna bone amputated, redness evident. He further deposed that dealt was due to asphyxia, as a result of ligature strangulation. 8 CRA No.1920 of 2022 13. Medical Examination of the appellants/accused were conducted by Dr. Aditya Sahu (PW-11) and submitted a report vide Ex.P/24, P/25 and P/26 and opined that there is no evidence to suggest that the appellant/accused cannot perform sexual intercourse. 14. In FSL report is positive and semen stains and human sperm were found. Upon the articles N1, N2 & N3, which are slides of accused and the article ‘R’ i.e. panty of the deceased human sperm was found. Bloodstains were also found upon the clothes of the accused and deceased. 15. The case of the prosecution in the present case heavily relies upon the principle of ‘last seen theory’. Briefly put, the last seen theory is applied where the time interval between the point of when the accused and the deceased were last seen together, and when the victim is found dead, is so small that the possibility of any other person other than the accused being the perpetrator of crime becomes impossible. Elaborating on the principle of “last seen alive”, a 3-judge bench of the Supreme Court in the matter of Satpal v. State of Haryana1 has, however, cautioned that unless the fact of last seen is corroborated by some other evidence, the fact that the deceased was last seen in the vicinity of the accused, would by itself, only be a weak kind of evidence. The Court further held: “.................Succinctly stated, it may be a weak kind of evidence by itself to found conviction 1 (2018) 6 SCC 610 9 CRA No.1920 of 2022 upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time,the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.” 16. We may hasten to clarify that the fact of last seen should not be weighed in isolation or be segregated from the other evidence led by the prosecution. The last seen theory should rather be applied taking into account the case of the prosecution in its entirety. Hence, the Courts have to not only consider the factum of last seen, but also have to keep in mind the circumstances that preceded and followed from the point of the deceased being so last seen in the presence of the accused. 10 CRA No.1920 of 2022 17. The prosecution in the present case has undoubtedly established that the deceased was last seen alive in the company of the appellant and has also adduced evidence about the events leading up to and following the point of last seen. PW-1 and PW-8 are the persons who lastly saw the deceased alive on 04.10.2018, and they have categorically deposed that they had seen the deceased along with the appellant No.1. 18. It is trite in law that the job of the prosecution is to put forth the best evidence that is collected during the investigation. Although it is ideal that the prosecution case is further substantiated through independent witnesses, but it would be unreasonable to expect the presence of third-parties in every case. 19. Upon considering the prosecution evidence in its entirety and having meditated on the grounds raised by the appellants to every possible extent, we find no reason to disbelieve the prosecution version of last seen theory. 20. From the evidence available on record, it is an undisputed fact that the deceased was last seen in the company of Appellant No. 1 shortly before she went missing, as is clearly established from the consistent testimonies of PW-1 and PW-8, who categorically stated that the deceased remained behind with Appellant No. 1 while they proceeded to collect food and, upon their return, both had disappeared. This circumstance, coupled with the disclosure made in the memorandum of Appellant No. 1, wherein he has 11 CRA No.1920 of 2022 given a detailed account of the manner in which the appellants lured, sexually assaulted, strangulated, and thereafter mutilated the deceased, provides a strong and incriminating link connecting the appellants to the crime. The medical evidence further corroborates the prosecution case, as PW-17 has opined that the cause of death was asphyxia due to ligature strangulation, with corresponding injuries on the neck consistent with the act described in the memorandum, and also noted the amputation injury inflicted on the left forearm, matching the prosecution version. 21. The FSL report too fully supports the case of the prosecution, inasmuch as human sperm and semen stains were detected on the slides of the accused (Articles N1, N2, N3) as well as on the panty of the deceased (Article R), and bloodstains were also found on the clothes of the deceased and the appellants, thereby completing the chain of evidence. These circumstances, taken cumulatively, form a complete and unbroken chain leading solely to the guilt of the appellants, ruling out any hypothesis of innocence. 22. In view of the aforesaid facts and circumstances of the case, we find no error or infirmity in the impugned judgment. The same is well-reasoned judgment of conviction passed by the learned trial Court. Accordingly, the criminal appeal merits dismissal and is hereby dismissed. The appellants are in jail. They shall serve 12 CRA No.1920 of 2022 out the remaining period of jail sentence as awarded to them by the learned trial Court. 23. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing the jail sentence to serve the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon'ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 24. The Registry is directed to transmit the certified copy of this judgment along with the record to the trial Court concerned for necessary information and compliance. SD/- SD/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Jyoti