Allowed

Tariq Anwer v. State Of Chhattisgarh

Chhattisgarh HC4 Feb 2024CRA/1069/2016

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed the criminal appeal, acquitting the appellant of murder charges. The Court held that the conviction could not be sustained as 'last seen together' theory was explained away by the accused and lacked corroboration, and the extra-judicial confession was contradictory and uncorroborated, failing to prove guilt beyond reasonable doubt.

What did the court decide?

Impugned judgment of conviction and sentence set aside; appellant acquitted of the charge under Section 302 IPC and released from jail.

Tariq Anwer Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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Cr.A. No. 1069/2016

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRIMINAL APPEAL NO. 1069 OF 2016

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(Arising out of judgment dated 26.07.2016 passed in Sessions Trial No. 33/2015 by 2^nd Additional Sessions Judge, Surajpur, Chhattisgarh)

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Tariq Anwer S/o Rais Ajam, Aged About 22 Years R/o Mahuwadih, P. S. Shankargarh District - Balrampur Chhattisgarh, Civil District Surguja, Revenue District Balrampur Ramanujganj, Chhattisgarh.

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… Appellant(s)

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Versus

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State Of Chhattisgarh Through, Police Station Jainagar, District – Surajpur, Chhattisgarh

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… Respondent(s)

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For Appellant :- Mr. A. K. Prasad, Advocate For Respondent :- Mr. Rahul Tamaskar, Govt. Advocate.

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Division Bench

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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 (05.02.2024)

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Sanjay K. Agrawal, J.

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1. This criminal appeal preferred by the appellant, under

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Section 374(2) of CrPC, is directed against the judgment

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of conviction and order of sentence dated 26.7.2016 passed by 2^nd Additional Sessions Judge, Surajpur District Surajpur, Chhattisgarh in Sessions Trial No.33/2015, by which the appellant herein has been convicted for the offence punishable under Section 302 of IPC and sentenced to undergo Imprisonment for Life and fine of Rs.100/- and in default of payment of fine amount, to undergo additional rigorous imprisonment for 2 months.

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2. Case of the prosecution, in short, is that on 10.03.2015 at about 2 p.m. the appellant herein took Varsa Chaturvedi (now deceased) on the motorcycle of his friend Beeru Chouhan (PW-7) to an incomplete poultry farm near Kali Ghat on Manendragarh road and strangulated her to death with the scarf/Chunni of the deceased, thereby committed the offence of murder punishable under Section 302 of IPC. Further case of the prosecution is that after commission of offence, the appellant is said to have come to the rented house of his friend Raju Ranjan (PW-8) and told him that he had killed Varsha Chaturvedi because even having affair with him she developed relationship with another

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person and ran away from there. It is alleged that the Appellant called on the mobile phone of Raju Ranjan (PW-8) and told, “I have killed Varsa Chaturvbedi on Manendragarh road in the incomplete poultry farm near Kali Ghat and her breathing is going on, go and check.” Upon this information, Raju Ranjan (PW-8) and his friends Ashutosh (PW-10), Akant (PW-2), Beeru chouhan (PW-7) went to the place as informed by the appellant and found Varsha Chaturvedi dead. The matter was reported by Beeru Chouhan (PW-7) to the Police Station, Jay Nagar on 10.03.2015 at about 5 p.m. pursuant to which Merg Intimation (Ex. P-7) and FIR (Ex. P-8) were registered. Inquest proceeding was conducted vide Exhibit P-6 and dead-body of deceased Varsa Chaturvedi was subjected to post-mortem which was conducted by Dr. J. B. Singh (PW-3) who proved the post-mortem report (Ex. P-3) in which the cause of death was opined to be asphyxia due to strangulation and the death was homicidal in nature.

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3. After completion of investigation, the appellant was charge-sheeted for the offence punishable under Section 302 of IPC before the concerned jurisdictional Criminal

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Court from where the case was committed to the Additional Sessions Court, Surajpur for trial and its disposal in accordance with law, in which the appellant abjured his guilt, took a plea of false implication and entreated for trial.

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4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 14 witnesses and exhibited 13 documents. In defence, no witness has been examined but 2 documents have been exhibited. Statement of the accused/appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.

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5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted and sentenced the appellant / accused for the offence as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred by the appellant questioning the legality, validity and correctness of the impugned judgment and order.

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6. Mr. A. K. Prasad, learned counsel for appellant would submit that the trial Court has convicted the appellant only on the basis of the incriminating circumstances culled out in paragraph-13 of the impugned judgment, however, the prosecution has utterly failed to bring home the offence beyond reasonable doubt as the said incriminating circumstances held in paragraph-13 of the impugned judgment are not established at all. Learned counsel would submit that the incriminating circumstance of last seen together of the appellant and the deceased as held by the trial Court is not sustainable as the same has been explained by the appellant in his statement given under Section 313 of CrPC while answering question no.51. He would further submit there is no further incriminating circumstance except for extra judicial confession made by the appellant to Raju Ranjan (PW-8) which has also not been proved in accordance with law and even otherwise, the same is a very weak piece of evidence and which is not reliable. Therefore, the impugned judgment is liable to be set-aside and the appellant is entitled for acquittal on the basis of benefit of doubt.

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7. Per contra, Mr. Rahul Tamaskar, learned State Counsel, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt, more particularly, the theory of last seen together has been fully established and therefore the trial Court has rightly convicted the appellant under Section 302 of the IPC, as such the appeal deserves to be dismissed.

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8. We have heard learned counsel for parties, considered their rival submissions made herein-above and have also gone through the records with utmost circumspection.

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9. The trial Court in paragraph 13 of its judgment has recorded the following incriminating circumstances against the appellant:

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I) यह कि� तारी� अनवर एवं मृत�ा वቧኋा� चतुव�दी �े मध्य ्ቚेम ्ቚसंग था । II) मृत�ा आरोपी �ो ्ቚेम ्ቚसंग में धोखा देने �ा हेतु� । III) मृत�ा �ो आरोपी तरी� अनवर �े साथ अंतितम बार जीकिवत देखा गया था । IV) आरोपी ्ቛारा वቧኋ� चतुव�दी �ी मृत्यु �े संबंध में किदया गया �ोई समाधान्ቚद स्प्ቖी�रण नहीं है ।

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V) आरोपी �ा अपनी ्ቚेकिम�ा वቧኋा� चतुव�दी �ी हत्या �ारिरत �रने �े संबंध में अपने दोस्तों �ो कि�या गया न्यातिय�े्ቈर संस्वी�ृतित �थन । VI) आरोपी �े न्यातिय�े्ቈर संस्वी�ृतित �े आधार पर किनज�न स्थल से घटना �े तत्�ाल प्ቐात् शव �ी बरामदगी । VII) मृत�ा �ी हत्यात्म� मृत्यु ।

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10. The seventh incriminating circumstance as to whether the death of deceased Varsa Chaturvedi was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of Dr. J. B. Singh (PW-3) who has proved the post-mortem report (Exhibit P-3) in which the cause of death has been opined to be asphyxia due to strangulation and the nature of death has been stated to be homicidal, which, in our considered opinion, is correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the Trial Court.

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11. The first circumstance that has been relied upon by the trial Court is the relationship between the appellant and the deceased. However, there is no specific evidence available on record to show that there was relationship between the appellant and the deceased and only for which the appellant committed the said offence. The second circumstance recorded by the trial Court is the motive of cheating in love by the appellant to the deceased. However, there is no clear evidence available on record in respect of cheating in love by the appellant.

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Therefore, the motive which has been stated by the prosecution has not been proved.

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12. Now, the question for consideration would be, whether the trial Court is justified in convicting the appellant on the basis of the theory of last seen together finding it to be duly established?

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13. In the matter of Jaharlal Das v. State of Orissa¹ , the

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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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14. 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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“31. Thus the evidence that the appellant had gone to Sitaram in the

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1 (1991) 3 SCC 27

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2 1994 Supp (2) SCC 372

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evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is and very shaky 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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15. Likewise, in the matter of State of Goa v. Sanjay

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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

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3 (2007) 3 SCC 755

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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

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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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16. 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

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4 (2014) 4 SCC 715

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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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17. In the matter of Anjan Kumar Sarma v. State of

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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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18. In the matter of Navaneethakrishnan v. State by

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Inspector of Police⁶ , the Supreme Court has held that though the evidence of last seen together could point to

5 (2017) 14 SCC 359

6 (2018) 16 SCC 161

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

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another⁷ , their Lordships of the Supreme Court found that there was considerable time gap of approximately

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7 (2007) 3 SCC 755

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8 ½ 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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20. In the instant case also, the appellant and the deceased were seen together by Akant (PW-2) & Beeru Chouhan (PW-7) on 10.03.2015 at about 2 p.m., whereas the dead body was recovered on the same day at about 5 p.m. with a gap of about 3 hours, as such, there is no considerable time gap between last seen together and the time when the dead body of the deceased was recovered. However, while answering question No.51, the appellant, in his 313 CrPC statement, has clearly stated that he had gone to the bus stand at around 12.30 pm to drop deceased Varsa Chaturvedi and after dropping her at the bus stand, he immediately returned. As such, even if the theory of last seen together is established but the incriminating circumstance of last seen by Akant (PW-2) and Beeru Chouhan (PW-7) has been explained by the appellant in his statement made

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under Section 313 CrPC and there is no further evidence in this regard. In that view of the matter, the last seen theory is of no use.

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21. So far as the extra judicial confession made by the appellant before Raju Ranjan (PW-8) is concerned, Raju Ranjan (PW8) in para-4 of his court statement has stated that the appellant told him that he had killed Varsa Chaturvedi, whereas in para-34 he has stated that on the basis of suspicion he was stating that the appellant had murdered Varsa Chaturvedi. Subsequently, of his own, he has further stated that the appellant himself told him by phone, hence, he came to know that the appellant had committed murder of Varsa Chaturvedi. As such, there is contradiction in the statement of Raju Ranjan (PW-8) in respect of the extra judicial confession made by the appellant before him. Even otherwise the extra judicial confession is a weak piece of evidence and unless it is corroborated by further evidences it cannot be made basis of conviction and in present case there is no such corroborating piece of evidence.

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22. In that view of the matter, the prosecution has filed to bring home the offence against the appellant beyond reasonable doubt and therefore, we are unable to sustain conviction and sentence imposed upon the appellant under Section 302 of IPC.

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23. Accordingly, the impugned judgment dated 26.7.2016 passed by the Trial Court convicting and sentencing the appellant for the offence under Section 302 of IPC, is hereby set aside/quashed and the appellant is acquitted from the said offence on the benefit of doubt. Appellant is stated to be in jail since 11.03.2015. He be released from jail forthwith, if his detention is not required in connection with any other offence.

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24. This criminal appeal, accordingly, stands allowed.

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25. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned Trial Court and the Superintendent of Jail where the appellant is presently lodged and suffering his jail sentence, for information and necessary action.

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

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Khatai

Tariq Anwer v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Tariq Anwer v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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