1 2025:CGHC:30789-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 482 of 2017 {Arising out of judgment dated 28.02.2017 in Sessions Trial No.35/2016 of the Additional Sessions Judge, Pendra Road, Bilaspur} 1. Chotelal Khairwar S/o Samhan Singh Khairwar, Aged About 20 Years, R/o Village Beljhiria, Kansbahra, Tehsil and Police Station Marwahi, District Bilaspur, Chhattisgarh. 2. Bahadur Singh Aayam, S/o Late Ramprasad Gond, Aged About 47 Years R/o Village Beljhiria, Kansabahra, Tehsil and Police Station Marwahi, District Bilaspur, Chhattisgarh. ... Appellants. versus State Of Chhattisgarh Through Police Station Incharge, Police Station Marwahi, District Bilaspur, Chhattisgarh. ... Respondent. For Appellants : Mr. Ankit Singhal, Advocate. For Respondent/State : Mr. Ashutosh Shukla, Panel Lawyer. Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Deepak Kumar Tiwari, JJ. Judgment On Board (07/07/2025) Digitally signed by AJAY KUMAR DWIVEDI DN: cn=AJAY KUMAR DWIVEDI, ou=HIGH COURT OF CHHATTISGARH, o=HIGH COURT OF CHHATTISGARH, st=CHATTISGARH, c=IN Date: 2025.07.09 16:18:31 +0530 2 Sanjay K. Agrawal, J. 1. By this appeal under Section 374(2) of the CrPC, the appellants herein have called in question legality, validity and correctness of the impugned judgment dated 28.02.2017 passed by the Additional Sessions Judge, Pendra Road, District Bilaspur in Sessions Trial No.35/2016, by which they have been convicted and sentenced as under :- Conviction Sentence Section 302/34 IPC Life imprisonment with fine of Rs.500/- each, in default of payment of fine, RI for two months. Section 201/34 IPC Rigorous Imprisonment for 3 years with fine of Rs.200/- each, in default of payment of fine, RI for one month. 2. Case of the prosecution, in brief, is that on 06.09.2010 at about 5 to 5:30 pm at Village Koptinala, Dhihaitola, Beljhiriya which falls within the jurisdiction of Police Station Marwahi, District Bilaspur, the accused/appellants in furtherance of the common intention assaulted the deceased Makhan Singh by wooden-log, as a result of which, he sustained grievous injuries and died. Thereafter, in order to conceal the evidence of crime, they had thrown the dead body in the water and 3 thereby, committed the offence. It is the further case of the prosecution that on 07.09.2016 Geeta Bai (PW-1) lodged Merg Intimation (Ex.P-1). Inquest report (Ex.P-4) was prepared and dead body was subjected to postmortem which was conducted by Dr. K. K. Dhruv (PW-15) who submitted his report vide Ex.P-10. Thereafter, FIR (Ex.-19) was lodged by S.R. Sahu (PW-16) on 08.09.2016. Memorandum statements of the accused/ appellants were recorded on the basis of which wooden-log was seized which was sent for examination to the FSL, however, the FSL report has not been brought on record. 3. After completion of investigation, charge-sheet was filed against the appellants for offence under Sections 302/34 and 201/34 of the IPC. The trial Court after framing the said charges proceeded for trial. 4. The prosecution in order to bring home the charges examined as many as 16 witnesses and exhibited 27 documents vide Exhibits P-1 to P-27. Statements of the appellants were recorded under Section 313 of the CrPC in which they abjured guilt and pleaded innocence. 5. The trial Court after completion of trial and after appreciating oral and documentary evidence on record, convicted and 4 sentenced the appellants as stated in the opening paragraph of this judgment against which this appeal under Section 374(2) of the CrPC has been preferred by them. 6. Mr. Ankit Singhal, learned counsel for the appellant submits that there is no eye-witness account and the appellants have been convicted solely on the basis of circumstantial evidence which is a very weak type of evidence. He further submits that the only evidence against the accused/appellants is the statement of Ramrati (PW-2) who allegedly lastly saw the deceased in the company of the accused persons. He also submits that this witness is wholly unreliable and even did not see the appellants and the deceased together. He lastly submits that the trial Court has failed to appreciate that there was no motive available to the appellants to cause murder of the deceased. In view of such submission, he prays to allow the appeal and to set-aside the impugned judgment. 7. On the other hand, Mr. Ashutosh Shukla, learned State counsel would support the impugned judgment and submits that the trial Court is absolutely justified in convicting the appellants under Sections 302/34 and 201/34 of the IPC and the prosecution has been able to bring home the offence 5 beyond reasonable doubt, as such, the appellants are not entitled for acquittal and the appeal deserves to be dismissed. 8. 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. 9. The first question is, whether the death of the deceased was homicidal in nature, which the trial Court has recorded in affirmative relying on the postmortem report (Ex.P-10) which was proved by Dr. K.K. Dhruv (PW-15) who opined that the death was homicidal in nature, and we do not find any illegality in the said finding as the same is neither perverse nor contrary to the record. 10.The next question would be whether the accused/appellants herein are the author of crime in question. 11.The case of the prosecution is not based on direct evidence and same is based on theory of 'last seen together' and recovery of the weapon at the instance of the appellants. 12.Now, the question for consideration would be, whether the trial Court is justified in convicting the appellants on the basis of theory of 'last seen together' finding it to be duly established. 6 13.In the matter of Arjun Marik v. State of Bihar1, 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 tothough 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.” 14.Likewise, in the matter of State of Goa v. Sanjay Thakran2, 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 taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap 1 1994 Supp (2) SCC 372 2 (2007) 3 SCC 755 7 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 party, then a relatively wider time gap would not affect the prosecution case. ” 8 15. Similarly, in the matter of Kanhaiya Lal v. State of Rajasthan3, 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 between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan1. 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.” 3 (2014) 4 SCC 715 9 16. In the matter of Anjan Kumar Sarma v. State of Assam4, 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. 17. In view of the settled principles laid down by the Hon'ble Supreme Court in the aforesaid cases, if we examine the facts of the present case, it appears that Ramrati (PW-2), Indraniya Bai (PW-6) and Munna Singh (PW-10) are the witnesses of last seen together. However, PW-2, PW-6 as well as PW-10, all three witnesses have turned hostile and not supported the case of the prosecution. They have only stated that they have seen the deceased grazing cattles, however, they have not seen the deceased and the appellants together at the relevant point of time. Therefore, the theory of 'last seen together' is not established. In the circumstances, we are of the view that the trial Court has erred in holding that the theory of 'last seen 4 (2017) 14 SCC 359 10 togther' is proved on the basis of evidence of Ramrati (PW-2), Indraniya Bai (PW-6) and Munna Singh (PW-10). 18. The trial Court, while convicting the appellants, has relied upon the recovery of blood stained weapon. 19. In the matter of Raja Naykar Vs. State of Chhattisgarh 5 , the Hon'ble Supreme Court observed that the sole circumstance of recovery of bloodstained weapon cannot form the basis of conviction unless the same was connected with the murder of the deceased by the accused. At para 29 the following was materially observed:- "19. It can thus be seen that, the only circumstance that may be of some assistance to the prosecution case is the recovery of dagger at the instance of the present appellant. However, as already stated hereinabove, the said recovery is also from an open place accessible to one and all. In any case, the blood found on the dagger does not match with the blood group of the deceased. In the case of Mustkeem alias Sirajudeen v. State of Rajasthan[(2011) 11 SCC 724], this Court held that sole circumstance of recovery of blood-stained weapon cannot form the basis of conviction unless the same was connected with the murder of the deceased by the accused. Thus, we find that only on the basis of sole circumstance of recovery of blood- stained weapon, it cannot be said that the prosecution has discharged its burden of proving the case beyond reasonable doubt." 20.In the present case, in pursuance of the memorandum of Appellant No.1 vide Ex.P/13, one club and one white coloured 5 (2024) 3 SCC 481 11 full shirt were seized vide Ex.P/14. Pursuant to the memorandum given by Appellant No.2 vide Ex.P/15, one club was seized vide Ex.P/16. The seized articles were sent to the Forensic Science Laboratory, Bilaspur for examination vide Ex.P/26. However, report of the FSL is not available on record. Admittedly, the white coloured shirt seized from Appellant No.1 Chotelal contains blood stains, but report of the FSL is not available on record to establish that the blood which was found on the shirt of Appellant No.1 was that of the deceased. In the absence of FSL report, it would be unsafe to connect the appellants with the crime in question. It is well settled that recovery of blood stained weapon cannot form the basis of conviction unless the same was connected with the murder of the deceased by the accused and, therefore, it cannot be said that the prosecution has discharged its burden of proving the case beyond reasonable doubt. 21. In view of the above and in light of the aforesaid decisions rendered by the Hon'ble Supreme Court, this Court reaches to the conclusion that the prosecution has failed to establish that the appellants were last seen with the deceased and no other connecting links have been satisfactorily made out and no other incriminating circumstance which leads to the 12 hypothesis of guilt against the appellants has been proved. As such, in absence of poof of other circumstances, we are of the considered opinion that the trial Court is absolutely unjustified in convicting the appellants under Section 302/34 and 201/34 of the IPC only on the basis of theory of ‘last seen together’ and recovery of weapon. 22. In the result, the Appeal is allowed. Conviction and sentences imposed upon the appellants under Sections 302/34 & 201/34 of IPC are hereby set aside and the appellants are acquitted of the said charges. The appellants are on bail. They need not surrender. The bail bonds earlier furnished by the appellants shall remain in force for a period of 6 months in view of the provision contained under Section 437-A of the Cr.P.C. 23. Let a certificate copy of this judgment along with original record be transmitted to the trial Court forthwith. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Ajay