This Common Review Appeal concerned a murder conviction based on a last seen theory. The High Court set aside the life sentence, holding that the time gap and lack of forensic corroboration failed to conclusively link the appellants to the crime.
The judgment below is set aside and the accused are acquitted of the charge.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 522 of 2014
Vijay Chelkar S/o Shri Sakhuram Chelkar, aged about 26 years, R/o Village Parsada, Police Station - Chakarbhata, District Bilaspur, CG
---- Appellant
Versus
State Of Chhattisgarh through Police Station–Chakarbhata, District Bilaspur, CG --- Respondent
with
CRA No. 516 of 2014
Amar Kaushik @ Golu S/o Gorelal Kaushik, aged about 20 years, R/o Village Parsada, Police Station - Chakarbhata, District Bilaspur, CG
---- Appellant
Versus
State Of Chhattisgarh through District Magistrate, Bilaspur, District (Civil & Revenue) - Bilaspur , CG --- Respondent
with
CRA No. 898 of 2015
Santosh Rajak @ Tiger son of Khamhan Rajak, aged about 35 years, R/o Village Parsada, Police Station - Chakarbhata, District Bilaspur, CG
---- Appellant
Versus
State Of Chhattisgarh through Police Station – Chakarbhata, District Bilaspur, CG --- Respondent
For Appellants : Shri Umakant Singh Chandel and Shri Rishi Rahul Soni, Advocates For Respondent/State : Shri Ashish Tiwari, GA
Hon’ble Shri Sanjay K. Agrawal and Hon’ble Shri Sachin Singh Rajput, JJ
Judgment On Board (09.03.2023)
Sanjay K. Agrawal, J.
Since all three aforesaid appeals arise out of the same judgment
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dated 28.03.2014 passed by Additional Sessions Judge Bilaspur, CG in Sessions Trial No. 110/2013, they are disposed of by this common judgment.
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to the efect that on 25.02.2013 at about 7-7.30 PM his only son (the deceased herein) had kept one bag of paddy in the house of Vasudev Kaushik and left his house, but did not get back thereafter. Merg also goes to show that on 26.02.2013 at about 10-11 AM he came to know that the body of his son was lying in a grainyard at Parsada and when he went there, he saw his son lying there with multiple bleeding injuries on his head, chin, nose and ear. On inquest being made, the deadbody was sent for postmortem examination which was conducted by Dr. S.S. Gupta (PW-11) who gave his report (Ex.P-12). After merg inquiry, FIR (Ex.P-25) was registered against the accused/appellants herein and the juvenile accused Shivgopal Shrivas for the ofence under Section 302/34 IPC. On the memorandum of accused Vijay Chelkar (Ex.P-16), seizure of iron rod having blood-like stains was made under Ex.P-17. Similarly, on the memorandum of accused Santosh Rajak (Ex.P-18), seizure of brickbats having blood-like stains was made under Ex.P-19. The seized articles were sent to Forensic Science Laboratory from where report (Ex.P-30) was received which shows that no blood was found on the iron rod. FSL report further goes to show that though the blood was found on the brickbats yet on account of it being disintegrated, it could not be conclusively said whether it was human blood or not. After thus completing investigation, the charge-sheet was fled by the police followed by framing of charge against all the accused persons under Section 302/34 IPC.
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mother of the deceased. This witness has stated that on the date of incident at about 4-5 PM her son (deceased) had left the house saying that he was going to the plot and that the accused/appellants herein and the juvenile accused Shivgopal were also with him. On being confronted with her statement recorded under Section 161 CrPC, this witness has stated that she disclosed to the police that Vasudev Kaushik (PW-1) had told her that accused Santosh and Vijay were also in the company of the deceased, but if it is not mentioned therein, she cannot tell the reason for that. When the attention of the Investigating OfÏcer (PW-15) was invited to this version of Moharbai (PW-12), he has stated that according to the disclosure statement made by Moharbai (PW-12), Vasudev Kaushik (PW-1) had not disclosed to her the names of the accused/appellants Santosh and Vijay. Vasudev Kaushik (PW-1) has also categorically stated in his evidence that the deceased alone had come to his shop in between 7:00 and 7.30 PM with a bag of paddy. Thereafter, on 26.02.2013 at about 11 AM the body of the deceased was recovered. Similarly, Shriram Dhritlahre (PW-13) has stated that while searching for his son (deceased) he went to the shop of Vasudev Kaushik (PW-1) where he told him that at about 6-7 PM the deceased had come to his shop with a bag of paddy, and after leaving the said bag in his shop, he got back without taking money. He has further stated that accused Amar Kaushik had come to his house and took the deceased with him, and that while leaving the house the deceased had told that he was going to the plot. He has stated that at that time accused Santosh, Vijay and juvenile accused Shivgopal were sitting near a culvert and from there they moved ahead together with accused Amar and the deceased. He has further stated that if this version does not fnd place in his police statment Ex. D-2, he cannot tell the reason therefor. When attention of the investigating ofÏcer was invited to this statement of PW-13, he has
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stated that no such statement was given before him during investigation. Thus from the testimony of PW-1, PW-12 and PW-13 the last seen theory put forth by the prosecution is not established as the prosecution has not been able to substantiate that the appellants were in the company of the deceased in the previous night of incident at about 7 PM.
“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 fnding 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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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 fnding the accused guilty of the ofence 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 fxed 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
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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 afect the prosecution case. ”
“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 .
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giving beneft of doubt. He is directed to be released from the custody forthwith unless required otherwise.”
“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 efect 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 confdence, 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
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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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of circumstances, only the theory of ‘last seen together’ cannot be made the sole basis for conviction of the appellants as it would be unsafe to rest conviction only on the theory of ‘last seen together’. Therefore, we are of the considered opinion that the learned trial Court is absolutely not justifed in convicting the appellants under Section 302/34 IPC only on the basis of the theory of ‘last seen together’ particularly looking to the considerable time gap of about 18 hours between the deceased being seen alive last and the recovery of the dead body.
“23. From the aforementioned discussion, we can summarise that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufÏcient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The Court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fxed formula that the prosecution has to prove, or need not prove, that the blood groups match.”
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As regards the case in hand, no blood was found on the iron rod seized on the memorandum of accused/appellant Vijay Chelkar. As regards brickbats, though the blood was found but it being disintegrated was not enough to prove whether it was the human blood and that too of the blood group of the deceased.
Sd/Sd/-
(Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge
Jyotishi
3 issues framed by the court
Whether conviction under Section 302/34 IPC can be based solely on the last seen theory without corroboration in presence of a long time gap.
Whether absence of conclusive forensic proof of blood group on seized weapons vitally affects the prosecution case.
Whether the evidence on record establishes the complicity of the accused in the murder beyond reasonable doubt.
Colour shows how this judgement treated each authority
Arjun Marik v. State of BiharFollowed¶45
Arjun Marik v. State of Bihar 1994 Supp (2) SCC 372 · Who else cites this
State of Goa v. Sanjay ThakranApplied¶47
State of Goa v. Sanjay Thakran (2007) 3 SCC 755 · Who else cites this
Kanhaiya Lal v. State of RajasthanFollowed¶53
Kanhaiya Lal v. State of Rajasthan (2014) 4 SCC 715 · Who else cites this
Anjan Kumar Sarma v. State of AssamDistinguished¶58
Anjan Kumar Sarma v. State of Assam (2017) 14 SCC 359 · Who else cites this
Navaneethakrishnan v. StateDistinguished¶59
Navaneethakrishnan v. State by Inspector of Police (2018) 16 SCC 161 · Who else cites this
Balwan Singh v. State of ChhattisgarhExplained¶67
Balwan Singh v. State of Chhattisgarh (2019) 7 SCC 781 · Who else cites this
3 provisions across 2 enactments
Vijay Chelkar (also Amar Kaushik, Santosh Rajak)
State Of Chhattisgarh
Sanjay K. Agrawal
Sachin Singh Rajput
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
