Ram Singh Marko Vs State of Chhattisgarh

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(Cr.A.No.1054/2019)

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Digitally signed 2024:CGHC:43902-DB by SISTA SISTA SOMAYAJULU SOMAYAJULU Date: NAFR 2024.11.14 10:59:18 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1054 of 2019

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{Arising out of judgment dated 24-11-2018 in Sessions Trial No.17/2018 of the Additional Sessions Judge, Pendra Road, District Bilaspur}

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Ram Singh Marko, S/o Dhanlal Singh Marko, Aged about 46 years, R/o Harratola, Police Station Gourela, District Bilaspur, Chhattisgarh.

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(In Jail) ... Appellant

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versus

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State of Chhattisgarh, through the Station House Officer, Police Station Gourela, District Bilaspur, Chhattisgarh.

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... Respondent

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For Appellant : Mr. Anil Tripathi, Advocate. For Respondent/State : Mr. Sharad Mishra, Panel Lawyer.

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Division Bench: - Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Radhakishan Agrawal, JJ.

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Judgment On Board

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(12/11/2024)

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Sanjay K. Agrawal, J.

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This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 24-11-2018 passed by the Additional Sessions Judge, Pendra Road, District Bilaspur in Sessions Trial No.17/2018, by which the sole appellant has been convicted under Section 302 of the IPC and sentenced

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to undergo imprisonment for life and pay a fine of 1,000/-, in default of₹ payment of fine to further undergo additional rigorous imprisonment for three months.

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Case of the prosecution, in short, is that on 7-4-2018 in between 12 noon and 4 p.m., at Village Harratola (Bardandtola), Police Station Gourela, District Bilaspur, the appellant assaulted his wife Kamla Bai by wooden stick by which she suffered grievous injuries and died, and thereby committed the offence pursuant to which Rakesh Marko (PW-9) – son of the deceased & the appellant, reported the matter to Police Station Gourela whereupon merg intimation Ex.P-9 was registered on the basis of which FIR was lodged vide Ex.P-14. Spot map was prepared by the Patwari vide Ex.P-1. The Investigating Officer also prepared spot map vide Ex.P-13. Inquest over the dead body of the deceased was conducted vide Ex.P-4. Dead body of the deceased was subjected to postmortem which was conducted by Dr. B.S. Paikra (PW-12) vide Ex.P-12 according to which cause of death was head injury, mode of death was coma and nature of death was homicidal. Pursuant to the memorandum statement of the appellant recorded vide Ex.P-6, wooden stick was seized vide Ex.P-7. Seized articles were sent for chemical examination to the FSL, Raipur from where report dated 31-7-2018 was received, though not exhibited, according to which blood was found on the wooden stick Art. D.

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Statements of witnesses were recorded under Section 161 of the CrPC and after usual investigation, the appellant was charge-sheeted for

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offence under Section 302 of the IPC before the Judicial Magistrate First Class, Pendra Road, who committed the case to the Court of Session, Bilaspur from where the learned Additional Sessions Judge, Pendra Road received the case on transfer for trial and for hearing and disposal in accordance with law.

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The prosecution, in order to prove the offence against the appellant, examined as many as 13 witnesses and brought on record 20 documents Exs.P-1 to P-20. The defence has not examined any witness, but exhibited one document Ex.D-1 i.e. the statement of Ku. Sweta Marko recorded under Section 161 of the CrPC to prove its case. The accused was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question.

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The trial Court after appreciating oral and documentary evidence on record, proceeded to convict the appellant for offence under Section 302 of the IPC, against which he has preferred this appeal.

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Mr. Anil Tripathi, learned counsel appearing for the appellant, submits that the theory of last seen together has not been established as such, it cannot be concluded that the appellant is the author of the crime, therefore, the appeal deserves to be allowed and the appellant deserves to be acquitted.

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Mr. Sharad Mishra, learned State counsel, supports the impugned judgment and submits that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt and the trial

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Court has rightly convicted and sentenced the appellant under Section

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302 of the IPC, as such, the appeal deserves to be dismissed.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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The first question for consideration would be, whether the death of the deceased was homicidal in nature to which the trial Court after appreciating the medical evidence on record, particularly the statement of Dr. B.S. Paikra (PW-12) and taking into account the postmortem report Ex.P-12 has rightly come to the conclusion that the death of the deceased was homicidal in nature which is a pure and correct finding of fact based on the evidence available on record and which is neither perverse nor contrary to the record. Even otherwise, homicidal death of the deceased has not been seriously disputed on behalf of the appellant. In view of the aforesaid analysis, we hereby accept and hold that death of the deceased was homicidal in nature and we also hereby affirm the finding recorded by the trial Court that death of the deceased was homicidal in nature.

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Now, the question is whether, the appellant has been rightly convicted for offence under Section 302 of the IPC?

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11.The trial Court has recorded a finding in its judgment that the appellant has been seen lastly together with the deceased by Sweta Marko (PW-7), Sushma Marko (PW-8) & Rakesh Marko (PW-9) – children of the appellant & the deceased. The trial Court has further recorded a finding

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that the statements of aforesaid witnesses clearly reveal that on the fateful day, in the morning, the appellant and the deceased both had gone together to their old house at Bardandtola to pluck mahuwa flowers and thereafter, the dead body of deceased Kamla Bai was found in the old house at 5-5.30 p.m.. As such, the appellant has been convicted solely on the basis of last-seen theory as recorded by the trial Court in paragraphs 35 & 36 of the judgment.

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12.Now, the question for consideration is, 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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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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Similarly, in the matter of Paramjit Singh and others v. State of Punjab and others 2, there is delay of 4½ months in recording the statements of the two police officials under Section 161 of the CrPC and no explanation was given by the investigating officer therein as to why the statements could not be recorded earlier.

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1 (1991) 3 SCC 27

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2 (1997) 4 SCC 156

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In the matter of Arjun Marik v. State of Bihar 3, 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. 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 4, 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

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4 (2007) 3 SCC 755

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3 1994 Supp (2) SCC 372

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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 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 5, their

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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 5 (2014) 4 SCC 715

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considered opinion, by itself cannot lead to proof of guilt against the

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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 Rajasthan⁶ .

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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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In the matter of Anjan Kumar Sarma v. State of Assam 7, 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 8, the Supreme Court has held that though the evidence of last seen

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6 (2010) 15 SCC 588

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7 (2017) 14 SCC 359

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8 (2018) 16 SCC 161

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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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In the matter of State of Goa v. Sanjay Thakran and another 9, their

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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

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9 (2007) 3 SCC 755

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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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21.Reverting to the facts of the present case in light of the aforesaid decisions rendered by their Lordships of the Supreme Court noticed herein, it is quite vivid that first of all, Sweta Marko (PW-7) – daughter of the appellant & the deceased, has stated in her statement before the Court that on the date of offence, both the appellant & the deceased had gone to their old house at Bardandtola to pluck mahuwa flowers and from there, her father came back after murdering her mother. However, she has contradicted in her statement recorded before the police i.e. Ex.D-1 to some extent, but she did not say that the appellant and the deceased i.e. his father & mother both had gone together to the old house at Bardandtola.

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22.Sushma (PW-8) – another daughter of the appellant & the deceased, has turned hostile and permission to put leading questions to her has been granted in which she has stated that on the date of offence, her mother and father had gone to their old house to pick mahuwa flowers and at that time, she (PW-8) and her brother Rakesh (PW-9) were in the house.

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23.However, Rakesh Marko (PW-9) – son the appellant & the deceased, has stated in his statement before the Court that on the date of offence, at 4 a.m., his father had gone to Bardandtola to pluck mahuwa flowers and thereafter, his mother went there at 7 a.m.. He has further stated that he came to Gourela at 10 a.m. and returned to his home Harratola at 11.30 a.m., thereafter, at 12 noon, his father came and made misleading

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statements about the whereabouts of his mother. He has been partly declared hostile and in paragraph 3, he has stated that his mother and father had gone to the old house to pluck mahuwa flowers. However, on a careful perusal of the statement of this witness before the Court, it would be vividly clear that he has specifically stated that on the fateful day, his father had gone to their old house at Bardandtola at 4 a.m., whereas, his mother had gone there at 7 a.m. and thus, both had gone to their old house separately.

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24.It is not the case of the prosecution that the appellant and his wife i.e. the deceased had gone to their old house together to pluck mahuwa flowers and any of the prosecution witnesses had seen them together in the house in question. Rakesh Marko (PW-9) has clearly stated that both had gone to their old house at Bardandtola in different times, the appellant had gone at 4 a.m.,whereas the deceased had gone at 7 a.m., as such, the appellant was never seen in the company of the deceased at the place of occurrence, though it is stated to be owned by the appellant. The only evidence available in this case is the theory of last-seen together and in order to convict the accused, the said evidence of last seen together of the appellant and the deceased at the place of occurrence must be clearly established beyond reasonable doubt. In that view of the matter, the trial Court is absolutely unjustified in holding that the theory of last-seen together is established.

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25.Even otherwise, the Supreme Court in Navaneethakrishnan (supra) has held that though the evidence of last seen together could point to the

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guilt of the accused, but this evidence alone cannot discharge the burden of establishing the guilt of the accused beyond reasonable doubt and it requires corroboration. Coming to the facts of the present case, even though if it is assumed that the appellant and the deceased were last-seen together, but in absence of corroboration, it cannot be held that the appellant has caused the death of the deceased i.e. his wife.

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26.In that view of the matter, the appellant is entitled for acquittal on the basis of benefit of doubt. Therefore, we are of the considered opinion that the learned trial Court is absolutely unjustified in convicting the appellant under Section 302 of the IPC only on the basis of the theory of ‘last seen together’ finding it fully established. As such, the appellant is entitled for acquittal on the ground of benefit of doubt.

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In view of the aforesaid discussion and finding, we are unable to sustain the conviction of the appellant under Section 302 of the IPC. As such, conviction and sentences imposed upon him under Section 302 of the IPC are liable to be set-aside and are hereby set-aside. The appellant is acquitted of the said charge extending him the benefit of doubt. Since he is in jail from 9-4-2018, he be set at liberty forthwith if not required to be detained under any other process of law.

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The criminal appeal is allowed.

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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. A certified copy of the judgment may also be sent to the

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concerned Jail Superintendent forthwith wherein the appellant is

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suffering the jail sentence.

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Sd/Sd/(Sanjay K. Agrawal) (Radhakishan Agrawal) JUDGE JUDGE

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Soma

Ram Singh Marko v. State of Chhattisgarh

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