Baishakhu Verma Vs State Of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No. 1042 of 2015

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{Arising out of judgment dated 01-07-2014 passed in Sessions Trial No.1/2014 by the learned Additional Sessions Judge (FTC) Kabirdham}

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Baishakhu Verma, S/o. Shri Kushal Verma, Aged About 24 Years, R/o.Village- Daihandih, Police Station Sahaspur Lohara, District – Kabirdham, Chhattisgarh.

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State Of Chhattisgarh, Through Station House Officer, Police Station Sahaspur Lohara, District – Kabirdham, Chhattisgarh.

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---Respondent

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(Cause Title taken from Case Information System)

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For Appellant : Mr. Amit Singh, Advocate For State-Respondent : Mr. Arvind Dubey, Govt. Advocate

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

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(Judgment On Board)

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(06.02.2024)

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Sanjay K. Agrawal, J.

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1. This criminal appeal filed under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 01.07.2014, passed by the learned Additional Sessions Judge (F.T.C.) Kabirdham, Kawardha, in Sessions Trial No.1/2014, by which, the appellant herein has been

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convicted for the offence under Sections 363, 364(A) & 302 of the Indian Penal Code and sentenced as under with a direction to run all the sentences concurrently :

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CONVICTION		SENTENCE
U/s. 363 of IPC	:	Rigorous imprisonment for 7 years and fine of Rs.2000/-, in default of payment of fine, 1 year additional rigorous imprisonment.
U/s. 364(A)of IPC	:	Life imprisonment and fine of Rs.5000/-, in default of payment of fine, 1 year additional rigorous imprison- ment.
U/s. 302 of IPC	:	Life imprisonment and fine of Rs.5000/-, in default of payment of fine, 1 year additional rigorous imprison- ment.

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2. Case of the prosecution, in short, is that on 15.09.2013 at

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1:00 p.m., the appellant herein abducted the minor Takeshwar Sahu from his lawful guardianship and strangulated to death; thereby the offence has been committed. Thereafter, the dead body was recovered on 17.09.2013 at 10:00 a.m. vide Merg Intimation (Ex.P-3) and thereafter, FIR was registered vide Ex.P-19, Panchnama was prepared vide Ex.P-9, inquest was conducted vide Ex.P-5 and dead body of Takeshwar (now deceased) was subjected to post-mortem, which was

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conducted by Dr. Sanjay Kharsan (PW-13), who proved the post-mortem report vide Ex.P-13, in which, cause of death was stated to be asphyxia due to strangulation. After due investigation, the appellant was charge-sheeted for the aforesaid offences 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 20 witnesses and exhibited 33 documents and the appellant-accused in support of his defence has examined only one witness DW-1, but has not exhibited any document.

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

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5. Mr. Amit Singh, learned counsel for the appellant, would submit that the theory of last seen together between the appellant and deceased is not established beyond reasonable doubt, as the date of incident is 15.09.2013 at

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1:00 p.m. and dead body was recovered on 17.09.2013 at 10:00 a.m. i.e. after more than 45 hours and, as such, the time gap between last seen together of appellant and deceased and recovery of dead body is so much that it cannot be said that only the appellant is the author of the crime and particularly in absence of any corroboration, the appellant cannot be convicted and, as such, the impugned judgment is liable to be set aside and the appeal deserves to be allowed.

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6. Per contra, Mr. Arvind Dubey, learned State counsel would submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the learned trial Court has rightly convicted the appellant for the aforesaid offences and, as such, the instant 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 deceased Takeshwar Sahu was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-13 proved by Dr. Sanjay Kharsan (PW-13), which in our considered opinion is a correct finding of fact based on

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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. The appellant has been convicted mainly on the ground that he has taken the minor deceased on 15.09.2013 at 1:00 p.m. and dead body of deceased was recovered on 17.09.2013 at 10:00 a.m., which he has not explained as to how and in what circumstances he has died; therefore, he is the author of the crime.

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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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1 (1991) 3 SCC 27

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12. In the matter of Arjun Marik v. State of Bihar 2, it has

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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 to though 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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2 1994 Supp (2) SCC 372

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3 (2007) 3 SCC 755

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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 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

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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

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Rajasthan 4, 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 nonexplanation 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

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4 (2014) 4 SCC 715

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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 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

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Inspector of 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 the guilt of the

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5 (2017) 14 SCC 359

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6 (2018) 16 SCC 161

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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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17. In the matter of State of Goa v. Sanjay Thakran and

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another 7, their Lordships of the Supreme Court found that there was considerable time gap of approximately 8½

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7 (2007) 3 SCC 755

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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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18. Reverting to the facts of the present case in light of the aforesaid decisions rendered by the Supreme Court, it is quite vivid that the trial Court has found the theory of last seen together between the appellant and deceased established on the statement of Gulab (PW-12), who had seen the appellant and deceased on 15.09.2013 at 1:00 p.m. However, the said witness was minor on the date of offence and no question with regard to competency of this witness has been asked, he simply stated on the date of offence he had seen the appellant and deceased going from Bundeli to Manpur by his cycle, but he has not informed the said fact to his parents. Similarly, Deepak (PW-7), who is also minor, said that on the date of offence, the appellant has asked him to bring Sonu to him, but he did not say that the appellant has taken Sonu along-with him. As such, the theory of last seen together is not clearly established beyond reasonable doubt so as to base conviction for offence under Section

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302 of I.P.C. and more particularly, the deceased was last seen together with appellant on 15.09.2013 at 1:00 p.m. and the dead body was recovered on 17.09.2013 at 10:00 a.m. after lapse of 45 hours. Therefore, it cannot be held that only the appellant is author of the crime, even there is no other corroborative piece of evidence. As such, in absence of corroboration, as required by their Lordships of the Supreme Court in Navaneethakrishnan (supra), the appellant is entitled for acquittal on the basis of benefit of doubt.

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19. Accordingly, impugned judgment of conviction and order of sentence dated 01.07.2014 is set aside. The appellant stands acquitted giving him benefit of doubt from the charges framed against him for offence punishable under Sections 363, 364(A) & 302 of I.P.C. Accordingly, the appellant is directed to be released forthwith from jail, unless he is required in any other offence.

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20. In the result, the appeal is allowed.

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21. Let a certified copy of this judgment along-with the original record be transmitted forthwith to the concerned trial Court and also to the Jail Superintendent for information and necessary action, if any, at the earliest.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Ashok

Baishakhu Verma v. State Of Chhattisgarh

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Baishakhu Verma v. State Of Chhattisgarh

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