Page No.1 of 13 IN CRA-880-2015 2025:CGHC:53520-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 880 of 2015 [Arising out of judgment dated 24.06.2015, passed in Sessions Trial No.01 of 2015 (State of Chhattisgarh v. Ghanshyam Dhuv and another) by the Additional Sessions Judge, Dhamtari (CG)] 1 - Ghanshyam Dhruv (Abated) As Per Honble Court Order Dated 25-08-2025. 2 - Lachchan Dhruv, S/o Narsingh Dhruv, aged about 27 years, R/o Village Achhota, Police Stastion Arjuni, Civil and Revenue District Dhamtari (Chhattisgarh) ... Appellant Versus State of Chhattisgarh, through Station House Officer, Police Station Arjuni, Civil and Revenue District Dhamtari (Chhattisgarh) ... Respondent ----------------------------------------------------------------------------------------------- For Appellant : Mr. Mukesh Shrivastava, Advocate For Respondent-State : Mr. Ankur Kashyap, Panel Lawyer ----------------------------------------------------------------------------------------------- Division Bench Hon'ble Mr. Ramesh Sinha, Chief Justice and Hon'ble Mr. Bibhu Datta Guru, Judge Judgment on Board (03.11.2025) Per: Ramesh Sinha, CJ (1) At the very outset, it would be appropriate to mention that since appellant No.01- Ghanshyam Dhruv died on 15.01.2023 and this appeal stood abated against him vide order of this Court dated SAIFAN KHAN Digitally signed by SAIFAN KHAN Page No.2 of 13 IN CRA-880-2015 25.08.2025, this appeal is now being considered only with respect to appellant No.02- Lachchan Dhruv. (2) By way of this criminal appeal filed under Section 374(2) of Cr.P.C., the appellant is calling in question legality, validity and correctness of impugned judgment of conviction and order of sentence dated 24.06.2015, passed in Sessions Trial No.01 of 2015 (State of Chhattisgarh v. Ghanshyam Dhuv and another) by the Additional Sessions Judge, Dhamtari (CG), whereby he has been convicted for offence under Section 302/34 of IPC and sentenced to undergo imprisonment for life with fine of Rs.100/- and, in default of payment of fine, additional rigorous imprisonment of 03 months. (3) The case of the prosecution, in short, is that on 25.10.2014, between 07-08 PM, at Mata Pond, situated in Village Achhota, which comes within the ambit of Police Station Arjuni, District Dhamtari (CG), the accused-appellant No.2 herein firstly shared common intention with another accused-appellant No.01 (now dead) and, in furtherance thereof, committed murder of Tulsiram (hereinafter referred to as the “deceased”) by throwing him into Mata Pond and, thereby said to have committed the aforesaid offence. (4) It is further case of the prosecution that when the matter was reported by Nagendra (PW-02) [son of the deceased] to the police, merg intimation (Ex.P/01) and FIR (Ex.P/02) were registered and wheels of investigation started running, in which, summons under Page No.3 of 13 IN CRA-880-2015 Section 175 of CrPC were issued and inquest proceedings were also conducted vide Ex.P/05. Spot map was prepared vide Ex.P/06. Thereafter, the dead-body of the deceased was sent for postmortem examination and, in the postmortem examination report (Ex.P/12), conducted by Dr. TR Dhruv (PW-13), it was opined that the cause of death of deceased is asphyxia due to drowning. The accused persons were arrested vide Ex.P/14 & Ex.P/15. Certain articles were seized vide Ex.P/08 & Ex.P/11 respectively, which were also sent for chemical examination vide Ex.P/18, but no FSL report has been brought on record for the reasons best known to the prosecution. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet in the competent criminal court having jurisdiction and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. (5) The prosecution in order to prove its case examined as many as 14 witnesses and exhibited 18 documents, whereas the appellant- accused in support of his defence has examined 02 witnesses and exhibited 03 documents. (6) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the Page No.4 of 13 IN CRA-880-2015 appellant for offence under Section 302/34 of IPC and sentenced him as mentioned in Para-02 of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (7) Mr. Mukesh Shrivastava, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for the offence under Section 302/34 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that the conviction of the appellant is premised on the story of last seen together, which has not been clearly proved/established. Learned counsel vehemently argued that all the prosecution witnesses have turned hostile and, even the witness to the story of last seen together i.e. Nagendra (PW-02) [son of the deceased] has also not specifically stated that he has seen the appellant herein throwing the deceased into the pond, indeed, he has only stated that he has seen the appellant alongwith the deceased on the date and time of the incident. Moreover, the deceased was habitual drinker and he used to found lying roadside under intoxicate state very frequently and, on the date of incident also, when he was found in the same condition, the appellant herein under good faith and in order to save his life, has shifted the deceased from roadside to a safer place (i.e. near the pond) and, therefore, it cannot be said that the appellant Page No.5 of 13 IN CRA-880-2015 has committed murder of the deceased that too when there was no motive or intention on the part of the appellant herein to cause his death. Even otherwise, according to the PM report (Ex.P/12) of the deceased, the cause of death of the deceased has been opined to be asphyxia due to drowning and in the abdomen of the deceased mud colour water having alcohol like smell was also found. Hence, in view of the aforesaid reasons, the present appeal deserves to be allowed and the appellant is liable to be acquitted/discharged from the offence in question. (8) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court has rightly convicted the appellant for the offence mentioned herein- above. Therefore, the present appeal deserves to be dismissed. (9) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (10) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/12), duly proved by Dr. TR Dhruv (PW-13), who has conducted the postmortem of the dead-body of the deceased, Page No.6 of 13 IN CRA-880-2015 wherein it has been opined that the cause of death of the deceased is is asphyxia due to drowning. Accordingly, taking into consideration the postmortem report (Ex.P/12) and the statements of Dr. TR Dhruv (PW-13), we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of the deceased to be homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding. (11) Now the next question would be whether the accused-appellant herein is the perpetrator of the crime in question or not ? (12) The appellant has been convicted on the basis of theory of last seen together, which the learned trial Court has found proved on the basis of the statement of Nagendra (PW-02) [son of the deceased]. However, in this regard, firstly it would be relevant to notice the principles governing the theory of last seen together. (13) In the matter of Jaharlal Das v. State of Orissa1, 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 1 (1991) 3 SCC 27 Page No.7 of 13 IN CRA-880-2015 established beyond reasonable doubt. (14) In the matter of Arjun Marik v. State of Bihar2, 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.” (15) Likewise, in the matter of State of Goa v. Sanjay Thakran3, 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 between the point of time 2 1994 Supp (2) SCC 372 3 (2007) 3 SCC 755 Page No.8 of 13 IN CRA-880-2015 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. ” (16) Similarly, in the matter of Kanhaiya Lal v. State of Rajasthan4, their Lordships of the Supreme Court have clearly held that the 4 (2014) 4 SCC 715 Page No.9 of 13 IN CRA-880-2015 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.” (17) In the matter of Anjan Kumar Sarma v. State of Assam5, 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 5 (2017) 14 SCC 359 Page No.10 of 13 IN CRA-880-2015 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. (18) 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 6 (2018) 16 SCC 161 Page No.11 of 13 IN CRA-880-2015 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.” (19) Reverting to the facts of the present case in light of the aforesaid decisions rendered by the Supreme Court particularly, in Anjan Kumar Sarma (supra), it is quite vivid that the prosecution has only established that the appellant was lastly seen with the deceased and no other connecting links have been satisfactorily made out and no other incriminating circumstance which leads to the hypothesis of guilt against the appellant has been proved. Witness to the story of last seen together i.e. Nagendra (PW-02) [son of the deceased] has also not specifically stated that he has seen the appellant herein throwing the deceased into the pond, indeed, in Para-02 he has only stated that he has seen the appellant alongwith the deceased on the date and time of the incident while the deceased was lying roadside under intoxication. Moreover, from the statement of Nagendra (PW-02) it is quite clear that the deceased was a habitual drinker and he used to found lying sleeping roadside under intoxicate state, as on account of heavy drinking, deceased’s family members does not allow him to sleep in the house. Furthermore, according to the PM report (Ex.P/12) of the deceased, in the abdomen of the deceased, mud colour water having alcohol like smell was also found. Therefore, the defence of the appellant that on the Page No.12 of 13 IN CRA-880-2015 date of incident, when he found the deceased lying roadside under intoxicate state, he under good faith and in order to save deceased’s life, has shifted the deceased from roadside to a safer place (i.e. near the pond), appears to be quite reasonable and, consequently, it cannot be said that the appellant has committed murder of the deceased. Accordingly, in view of aforementioned reasons, the theory of last seen together is not found established in the present case and it would be totally unsafe to rest the conviction only on the basis of the theory of ‘last seen together’. Therefore, we are of the considered opinion that the learned trial Court is absolutely unjustified in convicting the appellant under Section 302/34 of the IPC on the basis of the theory of ‘last seen together’ finding it fully established in absence of motive for offence on the part of the appellant and in absence of other incriminating material against the appellant in light of the principles of law laid down by their Lordships of the Supreme Court in Arjun Marik (supra), Sanjay Thakran’s case (supra) and Kanhaiya Lal (supra). (20) In view of foregoing analysis, it cannot be held that the appellant is the perpetrator of the offence, therefore, we hereby set aside the conviction so recorded and the sentences so awarded by the trial Court to the appellant vide the impugned judgment dated 24.06.2015. The appellant is acquitted of the charge under Section 302/34 of the IPC. Since the appellant is already on bail, he need Page No.13 of 13 IN CRA-880-2015 not to surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC. (21) The appeal is allowed to the extent indicated herein-above. (22) Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned for necessary information and action, if any. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice s@if