Allowed

Devendra Kumar Thakur v. State Of Chhattisgarh

Chhattisgarh HC1 Mar 2023CRA/716/2014

Case brief

AI extract

What is this about?

The High Court allowed the appeal against conviction for murder. The court held that convicting the appellant solely on the 'last seen together' theory was unsustainable as the prosecution failed to establish a complete chain of circumstances, particularly due to the time gap and lack of corroborative evidence linking the accused to the crime scene.

What did the court decide?

The judgment impugned was set aside, conviction under Section 302 IPC was quashed, and the appellant was acquitted.

Devendra Kumar Thakur Vs State Of… — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 716 of 2014

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Devendra Kumar Thakur S/o Late Manharan Lal Aged About 29 Years R/o Borsibhatha, Near Mahesh Kirana Store, PS Pulgaon, Civil And Rev. District Durg, C.G. ---- Appellant

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Versus

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• State Of Chhattisgarh Through Ps, Bhilai Nagar, Civil And Rev. Distt. Durg C.G. ---Respondent -----------------------------------------------------------------------------------------------------For Appellant: Shri Rahil Arun Kochar, Advocate For Respondent/State: Shri Wasim Miyan, PL

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Hon’ble Shri Sanjay K. Agrawal and Hon’ble Shri Sachin Singh Rajput, JJ

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Judgment On Board (01.03.2023)

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Sanjay K. Agrawal, J.

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By way of this appeal filed under Section 374(2) of the Code of Criminal Procedure the appellant has assailed the judgment impugned dated 30.06.2014 passed by First Additional Sessions Judge, Durg, District Durg, CG in Sessions Trial No. 272/2013 convicting him under Section 302 IPC and sentencing to undergo imprisonment for life with fine of Rs. 1000/-, in default of payment of fine, to further undergo RI for 06 months.

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Facts of the case in brief are that in the intervening night of 10/11.08.2013 deceased Naresh Thakur was done to death by the appellant by hitting with stone and also by way of strangulation, near a liquor shop at Bhilai. It is alleged that on the date of incident, the appellant herein, the deceased and one Narad Lal Tandon (PW-3) went to the liquor shop where they all consumed liquor. Thereafter, at about 9 pm, Narad Lal Tandon (PW-3) left the company of the deceased and the accused/appellant. On the next day i.e. 11.08.2013 at about 8:30 am body of the deceased was found near the said liquor shop . It is alleged that as the accused/appellant was having illicit affairs with the wife of the deceased, he

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wanted to eliminate him for ever, and for that he caused injuries on his head with the help of the stone lying nearby, and thereafter subjected him to throttling also. On that very day the accused/appellant and his brother went to the house of the deceased and informed his wife Mamta Thakur (PW-1) that her husband (the deceased) was lying unconscious near the liquor shop after consuming liquor. It is alleged that when the wife of the deceased went to the spot, she saw her husband lying there with blood coming out of his ear and froth coming out from his nostrills and mouth. The information to this effect was given by Sundar Singh Thakur (PW2) to the concerned police station where merg (Ex.P-4) was reduced to writing followed by registration of FIR (Ex.P-17) for the offence under Section 302 IPC. After making inquest under Ex.P-3, the dead body was sent for postmortem examination which was conducted by Dr. N.C. Rai (PW-7) who gave his report (Ex.P-10). On the memorandam of accused (Ex.P-8), seizure of stone was made under Ex.P-6. After completion of investigation, charge-sheet was filed against the accused/appellant under Sections 302 and 201 IPC followed by framing of charge accordingly.

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So as to prove the complicity of the accused/appellant in the crime in question, prosecution has examined as many as 10 witnesses. Statement of the accused/appellant under Section 313 Cr.PC was also recorded in which he pleaded his innocence and false implication in the case. Defence however has not examined any witness in support of its case.

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After hearing the parties and going through the material available on record including the evidence of the witnesses, learned Additional Sessions Judge acquitted the appellant under Section 201 IPC but has convicted and sentenced him as detailed in paragraph No. 1 of this judgment. Hence this appeal.

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Learned counsel for the appellant submits that even if the entire case of the prosecution is taken as it is, the conviction of the accused/appellant under Section 302 IPC is not made out. He submits that the conviction is based on a doubtful last seen evidence and except that, there is no other incriminating circumstantial

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evidence against the appellant. He further submits that the stone alleged to have been recovered on the disclosure statement of the appellant does not contain the factum of any blood stain thereon. According to counsel for the appellant, the evidence of wife of the deceased with regard to talking to the accused in the night are all improvements in her diary statement. He further submits that the evidence is also there to the effect that the liquor shop where the appellant and the deceased were consuming liquor, was a crowded place with about 100 persons present there, and it is the said place where the dead body was found.

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On the other hand, learned counsel appearing for the State supports the judgment impugned and submits that the findings recorded by the trial Judge holding the accused/appellant guilty under Section 302 IPC being based on proper appreciation of the evidence on record are fully justified and do not call for any interference in this appeal, and being so the appeal is liable to the dismissed. He submits that according to the evidence of Narad Lal Tandan (PW3) the deceased was in the company of the appellant in the previous night in the liquor shop where the body was found in the next morning. He further submits that the stone was seized at the instance of the appellant, that the decesed suffered number of injuries and that the cause of death is strangulation therefore, defence taken by the appellant that it could possibly be a case of accident, is completely ruled out.

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Heard learned counsel for the parties at length and went through the evidence on record with utmost care and caution. 8. The first question to be decided by this Court is whether the death of the deceased was homicidal in nature or not? Dr. N.C. Rai (PW-7) who conducted the postmortem examination on the body of the deceased and gave his report (Ex.P10) has stated that blood was oozing from the ear of the deceased which goes to show that there was fracture on the lower side of his skull. He also noticed haematoma in the brain in the size of 8 cm, two lacerated wounds on the left side of the neck each in the size of 3 x 1 cm, and four scratch marks on both sides of the neck caused by a sharp object. All these injuries caused to the deceased are

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opined to be antemortem in nature. This witness has opined that mode of death was asphyxia, the cause was throttling, and the death was homicidal in nature. Thus from the evidence of doctor (PW-07) it is established that death of the deceased was homicidal in nature.

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Now the second question to be answered by this Court is whether it is the accused/appellant who was involved in causing the death of the deceased? The only circumstance relied upon by the trial Court while convicting the accused/appellant under Section 302 IPC is the last seen theory given by Narad Lal Tandon (PW-3). According to this witness, on the date of incident in the evening he accompanied the deceased and the accused/appellant to the liquor shop where they all consumed liquor. He has also stated that after consuming liquor, he left the company of the accused and the deceased at about 9 PM, and on the next day at about 1 PM he came to know through some crime branch official that the deceased was done to death. It has also come in the cross examination of this witness that when he left the liquor shop, about 100 other persons were also present there. Thereafter, in the next morning as per the merg intimation (Ex.P-4) which has been duly proved by Sundar Singh Thakur (PW-2), the body of the deceased was found adjacent to the said liquor shop. It is not the case of the prosecution that when Narad Lal Tandon (PW-3) left the said liquor shop, the deceased and the accused alone were present there, rather in cross-examination he has categorically stated that at that point of time about 100 other persons were also there.

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The appellant has been convicted on the basis of last seen theory, therefore it would be appropriate to deal with the same in the light of decision of the Supreme Court. In the matter of Arjun Marik v. State of Bihar reported in 1994 Supp (2) SCC 372 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.

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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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Likewise, in the matter of State of Goa v. Sanjay Thakran reported in (2007) 3 SCC 755 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 :-

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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

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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. ”

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Similarly, in the matter of Kanhaiya Lal v. State of Rajasthan reported in (2014) 4 SCC 715 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 bears great similarity to that in Madho Singh v. State of Rajasthan¹ .

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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

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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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In the matter of Anjan Kumar Sarma v. State of Assam reported in (2017) 14 SCC 359 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.

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

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(2018) 16 SCC 161 the Supreme Court has held that though the evidence of last seen together could point to the guilt of the accused, 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 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

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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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In the matter of State of Goa v. Sanjay Thakran and another reported in (2007) 3 SCC 755 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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In the instant case also, the appellant and the deceased were seen alive on 10.08.2013 at 9 PM, whereas the dead body was recovered on 11-08-2013 at 8.30 AM with a gap of more than 10 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, it cannot be held that it is the appellant alone who is the perpetrator of the offence and in absence of corroboration, it cannot be held that the appellant is the author of the crime. It is not the case of the prosecution that the appellant had taken the deceased to the liquor shop and PW-3 had left the appellant and the deceased alone at that place. Admittedly, when PW-3 Narad Lal Tandon left the liquor shop, about 100 other persons were also present there. Thereafter, the dead body was found near the liquor shop with a considerable time gap of about 8-10 hours.

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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 crystal clear that the prosecution has only established that the appellant was last seen with the deceased and at that time about 100 other persons were also present in the liquor shop. This apart, no other connecting links have been satisfactorily made out leading to the hypothesis of guilt of the appellant. As such, in absence of proof of other circumstances or chain of circumstances, only the

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theory of ‘last seen together’ 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’. Therefore, we are of the considered opinion that the learned trial Court is absolutely not justified in convicting the appellant under Section 302 IPC only on the basis of the theory of ‘last seen together’ particularly keeping in mind the evidence of PW-3 according to whom when he left the liquor shop, 100 other persons were also present there.

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The motive as per the case of the prosecution is that as the accused was having illicit affair with the wife of the deceased namely Mamta Thakur (PW-1) and one mobile said to be purchased by the appellant was also recovered from her. However, the trial Court has not found this circumstance of existence of any illicit connecton between the accused and the wife of the deceased to be duly established. Likewise, though on the memorandum of the accused (Ex.P-8), seizure of a stone was made under Ex.P-6 yet there is nothing on record to show that there was any blood on the said stone, much less the human blood, as there is no FSL report on record. While dealing with the identical question it has been held by the Apex Court in the matter of Balwan Singh v. State of Chhattisgarh reported in (2019) 7 SCC 781 as under:

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“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 sufficient 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 fixed 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, though the stone was recovered on the memorandum

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of the accused/appellant, there is nothing to show that it was stained with any blood, much less the human blood as the said stone was not even subjected to forensic test.

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Having thus undertaken the considerably detailed discussion of facts and circumstances involved in the case in the light of the judicial pronouncements of the Apex Court referred to above, this Court has no hesitation to say that the Court below has not appreciated the evidence adduced by the prosecution in its proper perspective, and being so the findings of conviction of the accused/appellant under Section 302 IPC and the resultant sentence of imprisonment for life coupled with fine recorded by it cannot be allowed to stand.

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Consequently, the appeal is allowed , judgment under assail is hereby set aside, and the accused/appellant stands acquitted of the charge levelled against him. Since the accused/appellant is already on bail, he need not surrender. However, his bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437-A CrPC.

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Sd/Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge

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Jyotishi

Devendra Kumar Thakur v. State Of Chhattisgarh

Case brief

What is this about?

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Devendra Kumar Thakur v. State Of Chhattisgarh

Case brief

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