Allowed

Shashi Pratap Singh @ Sonu and Anrs. v. The State Of Chhattisgarh

Chhattisgarh HC12 Jan 2023CRA/856/2013

Case brief

AI extract

What is this about?

High Court of Chhattisgarh allowed criminal appeal filed by two appellants convicted of murder and burying the dead body. The Court held conviction unsustainable as prosecution failed to prove guilt beyond reasonable doubt relying solely on 'last seen together' theory without corroboration, amidst conflicting evidence regarding seized rings.

What did the court decide?

Conviction and sentences set aside; appellants acquitted of charges under Sections 302/34 and 201/34 IPC; bail bonds to remain valid for six months.

Shashi Pratap Singh @ Sonu and Anrs. Vs… — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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Cr.A. No. 856 of 2013

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 856 of 2013

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1. Shashi Pratap Singh @ Sonu, S/o Shiv Pratap Singh, Aged about 18 years, R/o Quarter No. M-1110, Adrsh Nagar Kushmunda, Korba (Civil and Revenue) District Korba (C.G.)

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2. Amit Kumar Lahre, S/o Prem Lal Lahre, Aged about 18 years, R/o Quarter No. M-1107, Adrsh Nagar Kushmunda, Korba (Civil and Revenue) District Korba (C.G.)

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---- Appellants

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Versus

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State of Chhattisgarh Through- P.S. Kushmunda, (Civil and Revenue) District Korba (C.G.)

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---- Respondent

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For Appellant No.1 : Mrs. Kiran Jain, Advocate For Appellant No.2 : Mr. Rajeev Kumar Shrivastava, Advocate For Respondent : Mr. Sudeep Verma and Ms. Ruchi Nagar, Deputy Government Advocates

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Division Bench: Hon’ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Rakesh Mohan Pandey Judgment on Board (12.01.2023)

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Rakesh Mohan Pandey, J.

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1. The instant criminal appeal filed by the appellants herein under Section 374(2) of the Cr.P.C. challenging therein judgment of conviction and order of sentence passed by the Additional Sessions Judge, Katghora, District Korba (C.G.) dated 14.08.2013 in Sessions Trial No. 67/2012, whereby each of the appellants has been convicted and sentenced as under:-

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	Conviction		Sentence
Under Indian 'IPC')	Section 302/34 of the Penal Code (for short	Rigorous and fine of paym rigorous months.	Imprisonment for life of Rs.1,000/-, in default ent to further undergo imprisonment for six

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Under Section 201/34 of IPC Rigorous Imprisonment for three years and fine of Rs.500/, in default of payment to further undergo rigorous imprisonment for five months. It is also directed that all the sentences shall run concurrently

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2. Case of the prosecution, in short, is that the appellants along with coaccused Vikky Lakra (acquitted by the trial Court) in furtherance of their common intention in between 11.05.2012 and 21.05.2012 near tipper-road, railway-track in field of Gopal Singh Kanwar committed murder of Moses Joseph assaulting him by fists, kicks over his mouth, jaw and chest and thereafter, his dead body was buried in mud. It is also alleged that the appellants took the rings of the deceased. Information was received by Police Station on 21.05.2012 to the effect that hand of the dead body was visible in a mud field and consequently, Roznamcha Sanha No. 24/2012 (Ex.-P/39) was recorded. The police party reached to the spot and report was sent to Sub-Divisional Magistrate, Katghora to exhume the dead body vide Ex.-P/43. Panchnama of the dead body was prepared vide Ex.-P/2, dead body was exhumed on 22.05.2012 at 09:30 hours vide Ex.-P/3 and dead body was recovered on 22.05.2012 at 10:15 hours vide Ex.P/4. The dead body was identified by S.D. Joseph (PW-4, father of the deceased) vide Ex.-P/5. Dehati merg intimation was registered and thereafter, numbered merg intimation was registered vide Ex.-P/36. The dead body was sent for postmortem vide Ex.-P/44. Site plan was prepared vide Ex.-P/11. Wet soil and dry soil were seized from the spot vide Ex.-P/9. F.I.R. (Ex.-P/46) was registered. The postmortem of

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the body was conducted by Dr. P.S. Kanwar (PW-16) and his report is Ex.-P/38. Statement of the witnesses was recorded under Section 161 of the Cr.P.C. One silver like ring and one motorcycle were seized from appellant No.1 vide Ex.-P/16 on the basis of his memorandum statement (Ex.-P/15). Memorandum statement of appellant No.2 was recorded vide Ex.-P/17 and one silver like ring, his shirt & trousers were seized vide Ex.-P/18. Memorandum statement of co-accused Vikky Lakra was recorded vide Ex.-P/19 and his clothes were seized vide Ex.-P/20. Blood stained soil and one broken SIM was seized vide Ex.-P/24. The application was sent to Sub-Divisional Magistrate for identification of the rings of the deceased vide Ex.-P/32. An application was made to Tehsildar for preparing site map through Patwari vide Ex.-P/33. The seized articles i.e. trousers, shocks, underwear, shoes, one garland and other articles were sent for FSL vide Ex.-P/53. On 17.05.2012 missing report was lodged by father of the deceased (PW4).

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3. After completion of the investigation, charge-sheet was filed against the present appellants and co-accused Vikky Lakra for offence punishable under Sections 302, 201 read with Section 34 of the IPC before the Judicial Magistrate First Class, Katghora which was committed to the Court of Additional Sessions Judge, Katghora for hearing and disposal in accordance with law.

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4. The trial Court framed charge under Sections 302/34 and 201/34 of the IPC on 12.09.2012 against the present appellants and co-accused Vikky Lakra. The accused/appellants abjured the guilt, pleaded nonguilty and entered into defence. The prosecution in order to bring

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home the offence examined as many as 18 witnesses and exhibited 55 documents in support of the case, whereas appellants exhibited documents D1 to D6. Statement of the accused/appellants under Section 313 of Cr.P.C. was recorded in which they abjured the guilt and pleaded innocence; however, no defence witness was examined by the accused/appellants.

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5. The trial Court after appreciation of oral and documentary evidence available on record convicted the present appellants as mentioned in opening paragraph of this judgment. However, the trial Court has acquitted co-accused Vikky Lakra of charges punishable under Sections 302/34 and 201/34 of the IPC. Hence, the present appellants have preferred the instant appeal under Section 374(2) of Cr.P.C. against the impugned judgment of conviction and order of sentence recorded by the trial Court.

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6. Mrs. Kiran Jain, learned counsel appearing for appellant No.1 and Mr. Rajeev Kumar Shrivastava, learned counsel appearing for appellant No.2, would submit that the appellants are innocent and they have falsely been implicated in this case. The deceased was missing from 11.05.2012 and his dead body was seen on 21.05.2012. The learned trial Court has convicted the appellants on the basis of seizure of silver like rings and theory of last seen together. They would further submit that last seen together is a weak piece of evidence and the dead body was recovered after lapse of 10 days, therefore, it cannot be inferred that the appellants are the author of the crime. They would further submit that seizure has not been proved and the seizure of rings has not been identified by any of the witnesses and there is no

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incriminating material against the present appellants. They would pray for acquittal of the present appellants.

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7. Per contra, Mr. Sudeep Verma and Ms. Ruchi Nagar, learned Deputy Government Advocates appearing for the State/Respondent, would submit that prosecution has proved its case beyond reasonable doubt. The deceased was seen in the company of the present appellants on 11.05.2012 and thereafter his dead body was found. They would further submit that silver like ring belonging to the deceased was recovered from the possession of appellant No.2. They would support the judgment passed by the learned trial Court and would submit that the instant appeal preferred by the appellants deserves to be dismissed.

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8. 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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9. Upon hearing learned counsel for the parties and after going through the records, the following two questions arise for consideration :-

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(i) Whether the prosecution has been able to prove death of deceased Moses Joseph to be homicidal in nature?

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(ii) Whether the accused/appellants are the perpetrator/author of the crime in question?

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Answer to Question No.(i) :-

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10. The learned trial Court has recorded a finding that the death of the deceased was homicidal in nature and the said finding is based upon

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the evidence of Dr. P.S. Kanwar (PW-16) and postmortem report (Ex.P/38). The finding recorded by the trial Court is based on relevant material available on record which cannot be said to be improper, therefore, the answer to first question would be that the death of the deceased was homicidal in nature.

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Answer to Question No. (ii) :-

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11. The appellants have been convicted on the ground of last seen together with the deceased by father, mother and brother of deceased on 11.05.2012. However, the learned trial Court has placed reliance upon the seizure of silver like rings which was seized from the possession of the appellants and the same has been identified by father of the deceased. Likewise, mud stained clothes and motorcycle have been seized on the instance of appellants. Regarding motive, the learned trial Court has held that there was dispute between the appellants and the deceased pertaining to one girl namely Babita Diwakar which has been held as motive for commission of offence.

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12. PW-1 Ashish Kumar Nath has stated that appellant No.1 and one guy had come to his shop to buy cigarette, but he does not remember the date.

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13. PW-3 Vinod Kumar who is witness of seizure and memorandum statements of the appellants, has admitted his signature over Ex.-P/17 to Ex.-P/24, but he has stated that he was not inquired by the police and his signatures were taken by police at Police Station Kushmunda.

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14. PW-4 S.D. Joseph is an important witness being father of the deceased. He has stated that on 11.05.2012 at about 06:00 pm his

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son left the house and thereafter, he did not return. On 14.05.2012 he went to Police Station Kushmunda to lodge missing report, but he was advised to wait for 02-04 days. Thereafter, on 17.05.2012 missing report was lodged. On 21.05.2012 he was informed about recovery of dead body near railway-track. On 22.05.2012, he went to place of recovery, where he identified the dead body on the basis of shoes of the deceased. In para-4, he has stated that on 28.05.2012 when he met the appellants and Vikky (co-accused) in the Police Station they made extra-judicial confession to the effect that they have committed murder of the deceased. In para-22 he has stated that vide Ex.-P/27 identification of the rings was conducted by Tehsildar.

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15. PW-5 Smt Jasinta is mother of the deceased. She has raised doubt against the present appellants.

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16. PW-6 Bhawani Kumar Chauhan is witness of memorandum statements of the appellants vide Ex.-P/15 & Ex.-P/17 and seizure of silver like rings vide Ex.-P/16 & Ex.-P/18 which were seized from the present appellants. PW-6 is also witness of memorandum statement of co-accused Vikky Lakra vide Ex.-P/19 and seizure vide Ex.-P/20.

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17. PW-7 Babita Diwakar has stated that she knows the appellants. She has stated that she was friend of the deceased too and there was love affair between them.

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18. PW-8 Shiv Kumar Kashyap is a witness, who had seen the deceased in the company of the appellants on 11.05.2012 at about 10:45 – 11:00 pm near Day-Night shop.

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19. PW-9 Smt. B. Ekka, Naib Tehsildar, who proved recovery memo of

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dead body (Ex.-P/4) and conducted identification of rings vide Ex.P/27. In cross-examination, in para-13, she has admitted that at the time of preparation of dead body memo (Ex.-P/7), she had noticed the rings in the hand of the deceased. She has further stated that she could not describe this fact in Ex.-P/7. She has further stated that she does not know whose rings were sent for identification.

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20. PW-16 Dr. P.S. Kanwar has found various lacerated wounds and one incised wound on various parts of body of the deceased. Doctor found fracture of skull of the deceased and his five teeth were broken. The clothes of the deceased were preserved. This witness has opined that cause of death was shock due to head injury and nature of death was homicidal.

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21. PW-17 Maris Joseph is elder brother of the deceased. He is a hearsay witness. PW-18 Ms. Manjulata Rathore is an Investigating Officer and has conducted the investigation.

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22. In the present case, deceased- Moses Joseph was missing from 11.05.2012, his dead body was seen on 21.05.2012 and it was identified on 22.05.2012. Memorandum statements (Ex.-P/15 & Ex.P/17) of the present appellants were recorded on 28.05.2012 and one silver like ring was seized from each of the appellants. On instance of co-accused Vikky Lakra (acquitted by the trial Court) clothes were seized vide Ex.-P/20. Vide Ex.-P/27 rings were identified by S.D. Joseph (PW-4). Smt. B. Ekka, Naib Tehsildar, (PW-9) has stated that at the time of recovery of dead body, she noticed the rings in the hand of the deceased. Further, neither father nor brother of the deceased has stated that the seized rings belonged to the deceased and they

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had seen the rings in the hand of the deceased. Further, the rings are not of unique character which is available in the market; therefore, the seizure of rings and its identification are not sufficient, particularly when Naib Tehsildar has specifically stated in the cross-examination that the rings were present on the fingers of the deceased at the time of recovery of dead body.

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23. The next circumstance of last seen together which has been stated by Shiv Kumar Kashyap (PW-8) according to which on 11.05.2012 at about 10:45 – 11:00 pm, he had seen the deceased in the company of the present appellants and co-accused Vikky Lakra. The dead body of the deceased was seen on 21.05.2012 and it was identified on 22.05.2012, there is considerable time gap between last seen alive together and the time when the dead body of the deceased was recovered which is about after 10 days. Therefore, it cannot be held that the appellants are perpetrator/author of the offence in absence of corroboration.

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24. In the case of Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 , their Lordships of the Supreme Court have 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. 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

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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 the in Madho Singh v. State of Rajasthan, (2010) 15 SCC 588.

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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.”

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25. In the matter of Anjan Kumar Sarma v. State of Assam, (2017) 14

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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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26. In the matter of Naveneethakrishnan v. State by Inspector of

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Police, (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, 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 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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27. Considering the judgments passed by the Hon'ble Supreme Court in above referred cases and after going through the evidence led by the prosecution, it is held that the prosecution has failed to prove other incriminating circumstances which lead to hypothesis of guilt against the appellants. Further, the learned trial Court has acquitted co-

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accused Vikky Lakra on same set of facts and evidence, therefore, we are of the considered opinion that the learned trial Court is absolutely unjustified in convicting the appellants under Sections 302/34 & 201/34 of the IPC in absence of other incriminating material against the appellants.

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28. Consequently, we hereby set aside the conviction so recorded and the sentences so awarded by the trial Court to the appellants vide the impugned judgment dated 14.08.2013. The appellants are acquitted of charges punishable under Sections 302/34 & 201/34 of the IPC. Presently they are on bail, therefore, they need not surrender, however, their bail bonds shall remain in force for a further period of six months in view of the provisions contained in Section 437A of Cr.P.C.

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29. Accordingly, the criminal appeal is allowed.

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(Sanjay K. Agrawal) (Rakesh Mohan Pandey) Judge Judge

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vatti

Shashi Pratap Singh @ Sonu and Anrs. v. The State Of Chhattisgarh

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Shashi Pratap Singh @ Sonu and Anrs. v. The State Of Chhattisgarh

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