Allowed

Chandrapal Chakradhari v. State Of Chhattisgarh

Chhattisgarh HC3 Jul 2023CRA/881/2014

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh quashed the conviction and sentence of an appellant convicted under sections 302 and 201 IPC. The court held that the 'last seen together' evidence was insufficient to prove guilt beyond reasonable doubt due to a considerable time gap between the last sighting and the recovery of the body.

What did the court decide?

The impugned judgment convicting and sentencing the appellant is set aside; he is acquitted of the offences under Sections 302 and 201 IPC and granted a free and safe pass.

Chandrapal Chakradhari 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 Criminal Appeal No. 881 of 2014

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Chandrapal Chakradhari, S/o. Devraj Chakradhari, Aged About 21 Years, R/o. Badedamali, Pasena Pani, P.S. Darima, Ambikapur, Civil And Revenue District Surguja, Chhattisgarh.

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---Appellant

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Versus

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State Of Chhattisgarh, S/o. Through P.S. Darima, Ambikapur, Civil And Revenue District Surguja, Chhattisgarh

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---Respondent

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For Appellant :- Mr. Vivek Kumar Shrivastava, Advocate For State/Respondent :- Mr. Sameer Oraon, Govt. Advocate

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Radhakishan Agrawal

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Judgment On Board (03.07.2023)

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Sanjay K. Agrawal, J.

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1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 08.09.2014, passed by the learned Third Additional Sessions Judge, Ambikapur, District Sarguja, in Sessions Trial No.206/2012, by which the appellant herein has been convicted and sentenced as under with a direction to run the sentences concurrently.

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CONVICTION	SENTENCE
U/s. 302 of I.P.C.	: Life imprisonment and fine of
	Rs.200/- and in default of payment
	of fine amount, additional rigorous imprisonment for 3 months.

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U/s. 201 of I.P.C. : Rigorous imprisonment for 7 years and fine of Rs. 200/- and in default of payment of fine, additional rigorous imprisonment for 3 months

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2. Case of the prosecution, in short, is that on 21.02.2012 in between 6:00 pm to 9:00 p.m. at Badedamali, Police Station Darima, the appellant assaulted his step brother Somdatt (now deceased), aged about 8 years, by sharp edged weapon and caused his murder and in order to screen himself from the offence, hide the dead body into the shrubs in the forest; thereby offence has been committed. Further case of the prosecution is that the appellant is son of Devraj (PW-4) from his first wife Urmila and the deceased is also a son of Devraj (PW-4) from his second wife Shobha Bai and Devraj (PW-4) had three other daughters namely Jagat Janani (PW-2), Lubhana (PW-1) and Muskan. Further case of the prosecution is that Shobha, second wife of Devraj (PW-4) always alarmed the appellant herein to do some work for earning on account of which, the appellant had grudge and he also used to scold his step brother i.e. deceased Somdatt. It is further case of the prosecution that on the fateful day on 21.02.2012 at 6:00 p.m., he had taken Somdatt along with him and in the late night, he came to house and Somdatt was found missing and appellant and deceased were last seen together by Lubhana (PW-1), Jagat Janani (PW-2), Shobha Bai (PW-3) and Devraj (PW-4). Thereafter, when the deceased was not found, his father Devraj (PW-4) lodged a report to Police Station Darima, pursuant to which, FIR was registered vide Ex.P-1 and merg was registered

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vide Ex.P-2 and inquest was conducted vide Ex.P-5 and thereafter, dead body was sent for post-mortem, which was conducted by Dr. J.Singh (PW-7), who proved the post-mortem report Ex.P-16, in which cause of death was stated to be shock due to extensive hemorrhage leading to cardio respiratory arrest and death was homicidal in nature. Pursuant to memorandum statement of the appellant Ex.P-11, the sharp edged weapon Tangi was seized vide Ex.P-12. After due investigation, appellant was charge-sheeted for the aforesaid offence under Sections 302 & 201 of I.P.C. before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

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3. In order to bring home the offence, prosecution examined as many as 12 witnesses and exhibited 21 documents and the appellant-accused in support of his defence has not examined any witness but has exhibited the documents Ex.D-1 & Ex.D-2.

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4. 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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5. Mr. Vivek Kumar Shrivastava, learned counsel for the appellant would submit that the theory of last seen together allegedly seen

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by Lubhana (PW-1), Jagatjanani (PW-2), Shobha Bai (PW-3) and Devraj (PW-4) stating that appellant had taken deceased alongwith him has not been established and even the incident is of 21.02.2012 and the dead body was recovered on the next day 22.02.2012 at 9:00 a.m. as per the statement of Devraj (PW-4) and, as such, there is time gap in between of 12 hours and there is no corroboration of the said fact from the prosecution witnesses and therefore, it is a case where the appellant is entitled for acquittal on the ground of benefit of doubt and the appeal deserves to be allowed.

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6. Mr. Sameer Oraon, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and learned trial Court has rightly convicted the appellant herein for the aforesaid offences; therefore, the appeal deserves to be dismissed.

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7. 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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8. The first question for consideration as to whether the death of the deceased Somdatt was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report Ex.P-16 proved by Dr. J.Singh (PW-7), 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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9. Now, the question for consideration is, whether the appellant is the author of the crime, for which the trial Court has adduced the evidence of last seen together of the appellant with the deceased and the statement of Lubhana (PW-1), Jagatjanani (PW-2), Shobha Bai (PW-3) and Devraj (PW-4) have been relied upon. The trial Court has found proved that pursuant to memorandum statement of appellant, the sharp edged weapon has been seized, which has been proved by the prosecution witnesses.

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10. 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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11. In the matter of Jaharlal Das v. State of Orissa 1, 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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12. In the matter of Arjun Marik v. State of Bihar 2, 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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1 (1991) 3 SCC 27 2 1994 Supp (2) SCC 372

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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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13. Likewise, in the matter of State of Goa v. Sanjay Thakran 3, 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 :-

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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

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3 (2007) 3 SCC 755

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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. ”

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14. Similarly, in the matter of Kanhaiya Lal v. State of Rajasthan 4,

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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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4 (2014) 4 SCC 715

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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 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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15. In the matter of Anjan Kumar Sarma v. State of Assam 5, 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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16. In the matter of Navaneethakrishnan v. State by Inspector of

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Police 6, 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

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5 (2017) 14 SCC 359

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6 (2018) 16 SCC 161

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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 crossexamination 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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17. In the matter of State of Goa v. Sanjay Thakran and another 7,

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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

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7 (2007) 3 SCC 755

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crime, the circumstance of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused.

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18. In the instant case, the appellant and the deceased were seen alive on 21.02.2012 at 6:00 p.m. to 9:00 p.m., whereas the dead body was recovered on 22.02.2012 at 9:00 a.m., as stated by Devraj (PW-4) father of the deceased and appellant, 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 and more particularly there is absence of corroboration, though the Tangi has been recovered pursuant to memorandum statement which was duly proved but it was not found stained with human blood as the FSL report has not been brought and in view of the decision of the Supreme Court in the matter of Balwan Singh vs. State of Chhattisgarh8 , recovery is of no use in case no human blood is found on weapon of offence.

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19. Reverting to the facts of the case even the theory of last seen together cannot be said to be established beyond reasonable doubt, as Ku. Lubhana (PW-1), sister of the deceased, though in the examination-in-chief, has supported the case of the prosecution that the appellant had taken her brother deceased alongwith him, but in para 5 of her statement, it has been stated that she did not have an opportunity to meet her brother Somdatt on that date and also the appellant. Jagatjanani (PW2) other sister of the deceased and step sister of the appellant

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8 (2019) 7 SCC 781

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though has supported the case of the prosecution, but in para 12 has stated that on the date of incident, she did not have any conversation with his brother appellant herein and she also stated that the appellant and her family had cordial relationship in between them. Devraj (PW-4), who is father of the deceased has supported the case of the prosecution that he has seen the appellant and deceased going together on the date of incident in the late night, but it would be unsafe to rely upon the statement of this witness, as he has seen the appellant and deceased late in the night but did not enquire as to where they were going in night and allowed them to go particularly when there is evidence on record that relationship between the father of the deceased and the appellant was estrange and not good. In that view of the matter, it would be unsafe to convict the appellant on the basis of theory of last seen together; more particularly, the dead body was recovered after a time gap of more than 12 hours and the motive is also not clearly established.

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20. In view of the aforesaid discussion, the appellant is entitled for acquittal on the ground of benefit of doubt. Accordingly, the impugned judgment of conviction and order of sentence dated 08.09.2014 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. and he shall be forthwith set at liberty, unless he is required in connection with any other case.

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21. The appeal is allowed to the extent indicated herein-above.

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22. 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/Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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Ashok

Chandrapal Chakradhari v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Chandrapal Chakradhari v. State Of Chhattisgarh

Case brief

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