1 CRA No. 1877 of 2018 2025:CGHC:55613-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1877 of 2018 [Arising out of judgment dated 25.10.2018 passed in Sessions Trial No.01/2018 by the 3 rd Additional Sessions Judge, Janjgir, District Janjgir-Champa, Chhattisgarh.]  Rakesh Kurre S/o Mahesh Ram Kurre, aged about 33 years, R/o Parsabhata Middle Gali, Police Station Baloda, District Janjgir Champa Chhattisgarh. ... Appellant versus  State of Chhattisgarh through Police Station Out Post Naila, Police Station Janjgir District Janjgir Chanmpa, Chhattisgarh. ... Respondent For Appellant :- Mr. Mirza Kaiser Baeg, Advocate. For Respondent :- Mr. Pankaj Singh, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (14.11.2025) Sanjay K. Agrawal, J 1.Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the appellant herein, is to the legality, ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.11.17 16:51:30 +0530 2 CRA No. 1877 of 2018 validity and correctness of the judgment dated 25.10.2018 passed by the 3rd Additional Sessions Judge, Janjgir, District Janjgir-Champa, Chhattisgarh, in Sessions Trial No.01/2018, 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 ₹10,000/-; in default of payment of fine, he has to undergo rigorous imprisonment for one year. Prosecution story:- 2.Case of the prosecution in nutshell is that from intervening night of 19.10.2017 at about 4:00 pm to 20.10.2017 at about 8:00 am, the appellant assaulted Dvendra Kumar Harbansh by sharp edged blade by which he suffered grievous injuries and died. The dead body of the deceased was recovered vide Exs.P/11 & P/59 (merg intimation reports). FIR was registered vide Ex.P/12. Spot map was prepared vide Ex.P/4. Dead body was identified by Vinod Harbansh (PW-10) vide Ex.P/39. Inquest proceedings (Ex.P/2) were 3 CRA No. 1877 of 2018 conducted and the dead body of the deceased was sent for postmortem. As per the postmortem report (Ex.P/43), proved by Dr. H.K. Chouhan (PW-16) cause of death was cardio-respiratory arrest as a result of asphyxia due to aspiration of blood due to cut throat injury and homicidal in nature. Wheels of investigation started running and the appellant was arrested. Pursuant to memorandum statement of the appellant (Ex.P/6) clothes of the appellant and weapon of offence sharp edged blade were recovered vide Exs.P/8 & 9, respectively. Other articles were also seized. Seized article were sent for chemical analysis to FSL. In the FSL report (not exhibited) clothes of the appellant and the weapon of offence blood was found. 3.After due investigation, appellant herein 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. 4 CRA No. 1877 of 2018 4.In order to bring home the offence, prosecution has examined as many as 16 witnesses and exhibited 66 documents, whereas, defence, in support of its case, has neither examined any witness nor 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 offence as mentioned in the opening paragraph of the judgment, against which the instant appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 6.Mr. M.K. Baeg, learned counsel for the appellant, would submit that the trial Court is 5 CRA No. 1877 of 2018 absolutely unjustified on convicting appellant for offence in question. He would also submit that the theory of last seen together is found to be established by the trial Court on the basis of statements of Kaushalyabai (PW-5) and Laxminarayan (PW-9) which is not reliable as the time gap between the last seen together of the appellant & deceased and recovery of dead body is more than 12 hours, therefore, it cannot be said that only the appellant is the author of the crime. He would further submit that though the seizure of weapon of offence i.e. sharp edged blade proved by Bhuvneshwar Kashyap (PW-1) and Rajuraj Tamrakar (PW-7) and it was subjected to the FSL, but the FSL report (not exhibited) was not put to the appellant, therefore, it could not be taken against the appellant as an evidence and furthermore motive of the offence has also not been proved. Thus the appeal deserves to be allowed and the appellant is entitled for acquittal on the basis of benefit of doubt. 6 CRA No. 1877 of 2018 7.Mr. Pankaj Singh, learned State counsel, would oppose the prayer made by learned counsel for the appellant and submit that the trial Court has rightly convicted the appellant for the offence in question as the theory of last seen together has rightly found to be established by the trial Court and also pursuant to memorandum statement of the appellant blood stained weapon of offence was seized on which in FSL report blood was found, therefore, the appeal deserves to be dismissed. 8.We have heard learned counsel for the parties, considered their rival submission made herein above and gone through the records precisely. 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/43) proved by Dr. Harish Kumar Chouhan (PW-16), which, in our considered opinion, is a correct finding of fact based on evidence available on 7 CRA No. 1877 of 2018 record and which is neither perverse 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 Kaushalyabai (PW-5) and Laxminarayan (PW-9), and further on the fact that pursuant to memorandum statement of the appellant weapon of offence i.e. blood stained sharp edged blade and his clothes were seized on which in the FSL report blood 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? 8 CRA No. 1877 of 2018 13. At this stage, it would be appropriate to notice the relevant decisions qua the theory of last seen together. 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 1 (2014) 4 SCC 715 9 CRA No. 1877 of 2018 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.” 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. 2 (2010) 15 SCC 588 3 (2017) 14 SCC 359 10 CRA No. 1877 of 2018 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 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 4 (2018) 16 SCC 161 11 CRA No. 1877 of 2018 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. 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 statements 5 (2007) 3 SCC 755 12 CRA No. 1877 of 2018 of Kaushalyabai (PW-5) and Laxminarayan (PW-9) that the appellant and the deceased were seen alive together on 19.10.2017 by them at 6:00 pm and 4:00 pm respectively, whereas the dead body was recovered vide Exs.P/11 & P/59 (marg intimations) on 20.10.2017 between 8:00 – 8:30 am with a gap of more than 12 hours, as such, there is considerable time gap between last seen together and the time when the dead body of the deceased was recovered. Therefore, only on the basis of last seen together it cannot be held that the appellant is the author of crime in question unless its is corroborated by other important evidences. 19. In the shape of corroboration, the trial Court has relied upon the motive and also fact that pursuant to memorandum statement of the appellant weapon of of offence i.e. sharp edged blade and clothes were seized on which in the FSL report blood was found. 20. However, with regard to motive no clinching evidence has been led by the prosecution and 13 CRA No. 1877 of 2018 even otherwise it is well settled that the motive is a weak piece of evidence, therefore, the appellant could not be convicted only on the basis of motive in absence of other corroborative piece of evidence that too for offence under Section 302 of the IPC. Furthermore, though the seized articles pursuant to memorandum statement of the appellant subjected to chemical analysis (FSL report not exhibited) in which blood was found on the blade and clothes of the appellant and human blood was found on the wrapper of the blade, but it was not put to the appellant/accused under Section 313 of the CrPC, therefore, the FSL report (not exhibited) cannot be taken into consideration to base the conviction of the appellant. Even otherwise, the seizure of the blade is of no use to the prosecution in light of decision of the Supreme Court in the matter of Mustkeem alias Sirajudeen v State of Rajasthan 6 in which their Lordships of the Supreme Court have held that the disclosure alone would not automatically 6 (2011) 11 SCC 724 14 CRA No. 1877 of 2018 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 and observed in paragraph No.25 as under:- “25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.” Conclusion:- 21. In view of the aforesaid discussion and analysis, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 25.10.2018 passed by the trial Court convicting and sentencing the appellant for the offences in question, is hereby set aside and the appellant is entitled for acquittal on the basis of principle of benefit of doubt as the 15 CRA No. 1877 of 2018 prosecution has failed to complete the chain of circumstances in light of decision of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 7 . Appellant is stated to be on bail. He need not surrender. However, his bail bond shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC. 22. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ankit 7 (1984) 4 SCC 116