Allowed

Bali @ Bali Ram v. State Of Chhattisgarh

Chhattisgarh HC12 Jul 2023CRA/1227/2014

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed an appeal against conviction under Section 302 IPC, holding that acquittal was warranted as the prosecution failed to prove guilt beyond reasonable doubt beyond the 'last seen together' theory due to a 60-hour time gap and lack of corroborating evidence or motive.

What did the court decide?

The impugned judgment of conviction and sentence dated 14.10.2014 is set aside; the appellant is acquitted and released forthwith.

Bali @ Bali Ram Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1227 of 2014

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Judgment Reserved on 05.07.2023

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Judgment Delivered on 12.07.2023

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Bali @ Bali Ram, S/o Hetram Dewangan, aged about 36 Years, R/o Ward No. 3 Chandrapur, Shashipur, P.S. Chandrapur, Distt. Janjgir Champa, C.G.

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----Appellant

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Versus

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State of Chhattisgarh, Through P.S. Chandrapur, District Janjgir Champa, C.G.

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---- Respondent

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For Appellant Mr. Siddharth Dubey, Advocate. For State Mr. Sameer Oraon, Government Advocate.

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Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Radhakishan Agrawal, JJ. CAV Judgment

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Per Radhakishan Agrawal, J.

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This criminal appeal preferred by the appellant herein under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 14.10.2014 passed in Sessions Trial No.98/2013 by the First Additional Sessions Judge Sakti, District Janjgir-Champa, C.G., by which the appellant stands convicted & sentenced as under:-

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Conviction	Sentence
Under Section 302 of Indian Imprisonment	for life and fine of
Penal Code (for short, ‘IPC’) Rs.50,000/-,	in default of

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	payment rigorous months	of fine additional imprisonment for six
Under Section 201 of IPC	Rigorous years and default additional for three	Imprisonment for five fine of Rs.20,000/-, in of payment of fine rigorous imprisonment months

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(Both sentences were directed to run concurrently)

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Case of the prosecution, in brief, is that on 07.04.2013 at about 8:00 – 9:00 pm at village Mahanadi Chandrapur, Police Station Chandrapur, District Janjgir-Champa, appellant herein committed murder of deceased- Guddu @ Chandresh Yadav by throttling his neck. Appellant in order to conceal the evidence, buried the dead body of the deceased in the sand of Mahanadi river. It is further case of the prosecution that on 10.04.2013, PW-1 Laxmi Prasad Chouhan, Kotwar, informed the police stating that dead body of unknown person is buried in the sand of Mahanadi river, pursuant to which merg intimation Ex.P-1 was recorded and FIR Ex.P-12 was registered against the unknown person. Identification panchnama & inquest proceedings were conducted, whereby dead body of the deceased- Guddu @ Chandresh Yadav was identified by his father PW-4 Dular Yadav. Thereafter, dead body of the deceased was sent for postmortem examination which was conducted by PW-11 Dr. N.P. Mishra, who has proved the postmortem report Ex.P-11, in which cause of death was stated to be asphyxia due to strangulation and the death was homicidal in nature. During investigation, it was found that there was some

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land and property dispute between the appellant and deceased, on that basis, appellant was arrested vide Ex.P-7. Memorandum statement of the appellant was recorded vide Ex.P-8, consequent to which one handkerchief was seized vide Ex.P-6.

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After due investigation, the appellant was charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.

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In order to bring home the offence, prosecution examined as many as 14 witnesses and exhibited 16 documents and the appellant-accused in support of his defence has not examined any witness but exhibited the documents Ex.D-2 to Ex.D-4.

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The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for the aforesaid offences and sentenced as mentioned in the opening paragraph of this judgment against which the present appeal has been preferred.

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Learned counsel for the appellant submits that the trial Court has not properly appreciated the overall material available on record for holding the appellant guilty. He further submits that the theory of last seen together is also not established as the date of incident was 07.04.2013, whereas the dead body of the deceased was found on 10.04.2013 and, as such, there is a long

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time gap between the date of incident and recovery of dead body of deceased and it cannot be said that only the appellant is the author of the crime. He further submits that no evidence has been established by the prosecution regarding motive of the appellant to commit murder of the deceased. Therefore, the impugned judgment of conviction and order of sentence deserves to be set aside and the appellant be acquitted of the said charges by extending him benefit of doubt.

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Learned counsel for the State supports the impugned judgment and submits that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt and learned trial Court has rightly convicted and sentenced the appellant herein for the aforesaid offences, therefore, the appeal deserves to be dismissed.

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We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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The first question for consideration as to whether the death of the deceased- Guddu @ Chandresh Yadav was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-11 proved by Dr. N.P. Mishra (PW-11), which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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10. Now, the question would be whether the appellant is the author of the crime in question for which the trial Court has relied upon the circumstantial evidence by delving into the incriminating evidence which has been found to be proved by the trial Court resulting into conviction of the appellant.

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11. Admittedly, the present case is based on circumstantial evidence. The five golden principles to constitute the panchsheel of the proof of a case based on circumstantial evidence have been narrated by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra1 , in which it was

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observed in paragraph 153 as under :-

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“ 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 :

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(1)the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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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 : [SCC para 19, p. 807 : SCC (Cri) p. 1047]

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Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

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(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,

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(3)the circumstances should be of a conclusive nature

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1(1984) 4 SCC 116

2(1973) 2 SCC 793

and tendency,

(4)they should exclude every possible hypothesis except the one to be proved, and

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(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.”

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12. Reverting to the facts of the case in light of the aforesaid principles of law, it is the finding of the trial Court recorded in para 30 of the judgment to the effect that deceased- Guddu @ Chandresh Yadav used to earn his livelihood by selling snacks item ( chakana) . Appellant and deceased were friends and they used to meet off and on and on the date of incident, there is dispute ensued between the appellant and deceased regarding transaction of money with respect to land and house property. On the date of incident i.e. 07.04.2013, appellant was last seen with the deceased at about 8:00-9:00 pm by PW-7 Mohan Yadav, PW-9 Leeladhar Yadav & PW-10 Fagulal, and thereafter, 2-3 days i.e. 10.04.2013, dead body of the deceased was found buried in the sand of Mahanadi river at 9:00 am, as such, there is time gap of about 60 hours between the time when the appellant was seen with the deceased and dead body of deceased- Guddu @ Chandresh Yadav was recovered after exhumation.

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13. Now, the question for consideration would be, whether the trial Court is justified in convicting the appellant only on the basis of the theory of last seen together finding it to be duly established?

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14. In the matter of Jaharlal Das v. State of Orissa 3, 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 established beyond reasonable doubt.

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15. In the matter of Arjun Marik v. State of Bihar 4, 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 :-

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“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.”

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16. Likewise, in the matter of State of Goa v. Sanjay Thakran 5, the

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Supreme Court has held that the circumstance of last seen together would be a relevant circumstance in a case where there

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3 (1991) 3 SCC 27

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4 1994 Supp (2) SCC 372

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5 (2007) 3 SCC 755

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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 :-

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“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 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

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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. ”

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17. Similarly, in the matter of Kanhaiya Lal v. State of Rajasthan 6,

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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 :-

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“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

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6 (2014) 4 SCC 715

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bears great similarity to that in Madho Singh v. State of Rajasthan .

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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.”

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18. In the matter of Anjan Kumar Sarma v. State of Assam 7, their

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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.

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19. In the matter of Navaneethakrishnan v. State by Inspector of

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Police 8, 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: -

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“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

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7 (2017) 14 SCC 359

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8 (2018) 16 SCC 161

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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 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.”

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20. In the matter of State of Goa v. Sanjay Thakran and another 9,

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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.

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9 (2007) 3 SCC 755

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21. In the instant case, the appellant and deceased were seen alive on 07.04.2013 at 8:00 pm - 9:00 pm, whereas the dead body was recovered on 10.04.2013 at 9:00 am i.e. with a gap of 60 hours, as such, there is considerable time gap between the last seen together and the time when the dead body of the deceased was recovered. Therefore, it cannot be held that only the appellant is the perpetrator of the offence. PW-4 Dular, father of the deceased, has stated in his deposition that last time he had seen his deceased-son in the company of appellant, but in his cross-examination, he has stated that he has no idea as to with whom and where his son was roaming on the date of incident. He also stated that many persons used to come to the shop of his sondeceased. Furthermore, the evidence of PW-7 Mohan Yadav and PW-10 Fagulal would show that they have only seen appellant with deceased on 07.04.2013 at about 7:00-8:00 pm under the influence of liquor but after that where appellant and deceased had gone, they have no knowledge and they could not state anything about the incident in absence of knowledge. PW-9 Leeladhar Yadav has stated that he has seen the appellant on 07.04.2013 at about 8:30-9:00 pm but in his cross-examination, he has stated that he does not know as to on which date appellant and deceased had come to his shop and it is PW-7 Mohanlal who told him that the date of incident is 07.04.2013. Thus, in our considered opinion, prosecution has only established that the appellant was seen with the deceased and no other incriminating circumstance which leads

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to the hypothesis of guilt against the appellant has been proved. Although one handkerchief has been recovered pursuant to memorandum statement of appellant but it has not been sent to FSL for chemical examination. As such, in absence of proof of other circumstances or chain of circumstances, only the theory of 'last seen together' which was 60 hours prior to the dead body of deceased found buried in the sand of Mahanadi river in a public place, cannot be made the sole basis for conviction of the appellant as it would be unsafe to rest conviction only on the theory of 'last seen together'. This apart, prosecution has not been able to prove any motive of the appellant behind the commission of the crime in question. Most importantly, PW-4 Dular, father of deceased, has admitted in his cross-examination that his son did not have enmity or quarrel or dispute with anyone. Thus, the prosecution has utterly failed to prove the guilt of the appellant either by direct evidence or through circumstantial evidence as required under the law.

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22. In that view of the matter, the appellant is entitled for acquittal on the ground of benefit of doubt. Accordingly, the impugned judgment of conviction and order of sentence dated 14.10.2014 is set aside. The appellant stands acquitted giving him benefit of doubt from the charges framed against him for the offences punishable under Sections 302 & 201 of I.P.C. Appellant is reported to be in jail, he be set at liberty forthwith, if not required to be detained in connection with any other case.

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23. In the result, the present criminal appeal is allowed.

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24. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any.

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Sd/-

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Sd/-

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(Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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Akhilesh

Bali @ Bali Ram v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Bali @ Bali Ram v. State Of Chhattisgarh

Case brief

What is this about?

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