Allowed

Rakesh Dhruv v. State Of Chhattisgarh

Chhattisgarh HC15 Jan 2024CRA/1295/2016

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed the criminal appeal and acquitted the appellant of murder. Holding that the theory of last seen together required corroboration which was wholly absent due to hostile witnesses and lack of authenticated seizure of the knife, the court set aside the trial court's conviction and sentence.

What did the court decide?

Impugned judgment and order dated 30.6.2016 set aside; appellant acquitted of charge under Section 302 IPC and granted liberty forthwith.

Rakesh Dhruv Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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(Cr.A. No. 1295 of 2016)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRIMINAL APPEAL NO. 1295 OF 2016

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Rakesh Dhruv, S/o Antram Dhruv, aged about 30 years, R/o Pandit Dindayal Upadhyay Ward, Shanti Nagar, Bhatapara, District Balodabazar-Bhatapara (C.G.)

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... Appellant(s)

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Versus

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State of Chhattisgarh, through: Police Station - Bhatapara (Gramin), District Balodabazar-Bhatapara (C.G.)

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... Respondent(s)

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_____________________________________________________ :- For Appellant Mr. Chitendra Singh, Advocate. For Respondent/State :- Mr. Ravi Maheshwari, Panel Lawyer.

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Division Bench

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

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Judgment on Board (16.01.2024)

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Sanjay K. Agrawal, J.

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This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant herein against the judgment and order dated 30.6.2016 passed by the Additional Sessions Judge, Bhatapara, District Balodabazar in Sessions Case No.H-14/15, by which the appellant has been convicted for the offence punishable under Section 302 of IPC and sentenced to

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(Cr.A. No. 1295 of 2016)

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undergo R.I. for Life and to pay fine of Rs.1000/- and in the event of payment of fine amount, to undergo additional R.I. for three months.

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In a nutshell, case of the prosecution is that on 23.3.2015 at about 4:00 p.m. at Bodtara Khar Railway Line under Police Station Bhatapara (Gramin), the appellant caused death of his wife, Shanti Bai, by assaulting her with stone and knife and strangulating her. The matter was informed at the Police Station Bhatapara (Gramin). Dehati Nalishi (Exhibit P-1) and Dehati Merg Intimation (Exhibit P-2) were recorded. Memorandum statement of the appellant was recorded vide Exhibit P-5 pursuant to which, bloodstained stone and knife were seized vide Exhibit P-6 and other articles were also seized vide Exhibits P-7 & P-8. Spot Map was prepared vide Exhibit P-17. Inquest proceeding was conducted vide Exhibit P-4 and the dead-body of Shanti Bai was subjected to post-mortem conducted by Dr. Ajay Kumar Gupta (PW-8) vide Exhibit P-11 in which the cause of death has been opined to be cardio-respiratory arrest due to asphyxia and the nature of injuries were ante-mortem. F.I.R. was registered vide Exhibit P-16 and the appellant was

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(Cr.A. No. 1295 of 2016)

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arrested vide Exhibit P-9. Though F.S.L. report has been brought on record but it has not been exhibited and in the F.S.L. report, human blood has been found on the seized knife and stone.

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After completion of the investigation, the appellant was charge-sheeted for the offence punishable under Section 302 of IPC before the concerned jurisdictional Criminal Court and thereafter the case was committed to the Court of Additional Sessions Judge, Bhatapara 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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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 10 witnesses as PW-1 to PW-10 and exhibited 21 documents from Exhibits P-1 to P-21. In defence, neither any witness has been examined nor any document has 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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(Cr.A. No. 1295 of 2016)

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After conclusion of the trial, the Trial Court, by impugned judgment dated 30.6.2016, on appreciation of the oral and documentary evidence available on record, has convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to undergo R.I. for Life and to pay fine of Rs.1000/- with default stipulation, against which the present appeal has been filed by the appellant calling in question the legality, validity and correctness of the impugned judgment.

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Mr. Chitendra Singh, learned counsel appearing for the appellant, would submit that the theory of last seen together is not established and even if it is established there is no corroboration. He would further submit that only stone has been seized from the place of incident and the memorandum and seizure witnesses have turned hostile. Furthermore, the alleged confession made by the appellant is inadmissible in evidence in view of Section 25 of the Evidence Act. As such, the appellant is entitled to be acquitted on the basis of benefit of doubt and the appeal deserves to be allowed.

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(Cr.A. No. 1295 of 2016)

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Mr. Ravi Maheshwari, learned State Counsel, per contra, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the Trial Court has rightly convicted the appellant for the aforesaid offence. As such, the appellant is not entitled to be acquitted on the basis of benefit of doubt and the appeal deserves to be dismissed.

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We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. 9. The first question, as to whether the death of Shanti Bai was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of Dr. Ajay Kumar Gupta (PW-8) who has proved the post-mortem report (Exhibit P-11) in which the cause of death has been opined to be cardiorespiratory arrest due to asphyxia from trachea injury and the nature of injuries were ante-mortem, which, in our considered opinion, is a 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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(Cr.A. No. 1295 of 2016)

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Case of the prosecution is based on circumstantial evidence. The Supreme Court in the matter of Sharad Birhichand Sarda v. State of Maharashtra 1 has laid down the following five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence:-

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“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were following made:

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Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

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1 (1984) 4 SCC 116

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(Cr.A. No. 1295 of 2016)

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(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. ”

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As regards the next question as to whether the appellant is author of the crime and has caused death of his wife, Shanti Bai, the Trial Court has relied upon the evidence of PW-5 Kaushilya Dhruv, who has seen the appellant and the deceased together in the afternoon on the date of incident and then immediately after one hour, dead-body of Shanti Bai was found and the appellant has not explained in his statement recorded under Section 313 of CrPC as to how and under what circumstances his wife died. However, a careful perusal of the statement of PW-5

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(Cr.A. No. 1295 of 2016)

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Kaushilya Dhruv would show that on the date of incident, in the afternoon, the appellant and his wife, Shanti Bai, both had left their home to go out and thereafter dead-body of Shanti Bai was found in the evening.

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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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In the matter of Jaharlal Das v. State of Orissa 2 , 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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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

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2 (1991) 3 SCC 27 3 1994 Supp (2) SCC 372

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(Cr.A. No. 1295 of 2016)

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basis of theory of 'last seen together' and observed in para 31 as under:-

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“31 . Thus the evidence that the appellant had gone to Sitaram in the evening of 19-71985 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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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 para 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

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4 (2007) 3 SCC 755

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(Cr.A. No. 1295 of 2016)

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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 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

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(Cr.A. No. 1295 of 2016)

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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 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 paras 15 & 16 as under :-

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“15 . The theory of last seen – the appellant having gone with the deceased in the manner noticed herein before, 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 6 .

5 (2014) 4 SCC 715

6 (2010) 15 SCC 588

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(Cr.A. No. 1295 of 2016)

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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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In the matter of Anjan Kumar Sarma v. State of Assam7 , 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 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 para 22 as under: -

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7 (2017) 14 SCC 359

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8 (2018) 16 SCC 161

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(Cr.A. No. 1295 of 2016)

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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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Reverting to the facts of the present case, in light of the aforesaid decisions rendered by the Supreme Court, it is quite vivid that except for the statement of PW-5 Kaushilya Dhruv there is no other evidence on record to hold that the appellant and the deceased

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(Cr.A. No. 1295 of 2016)

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were last seen together. It has not come on record that at which time the appellant and the deceased both had gone out together. The theory of last seen together is to be established beyond reasonable doubt and even if it is established beyond reasonable doubt, in light of of Navaneethakrishnan (supra), it requires corroboration and for which the Trial Court has relied upon the memorandum statement of the appellant pursuant to which, knife and stone were seized and on which human blood was found in the F.S.L. report. However, a careful perusal of the statement of the memorandum and seizure witness, PW-2 Bhuneshwar Prasad Sahu would show that only stone was seized in his presence and he refused the seizure of knife in his presence. Similarly, the another memorandum and seizure witness, PW-1 Tekram, has stated that the police had got his signature on the papers stating that the appellant has killed his wife and he had signed some papers on the spot and some in the police station. PW-2 Bhuneshwar Prasad Sahu has also stated that he along with PW-1 Tekram and some other persons were just roaming around the village and when they reached at the place of incident, the

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(Cr.A. No. 1295 of 2016)

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police party was already there and the appellant was sitting in the police vehicle and no enquiry was made from the appellant in his presence. Even if it is held that seizure has been proved by the Investigating Officer but the knife and stone on which human blood was found in the F.S.L. report, dated 28.4.2016, have not been put to the accused to explain under Section 313 of CrPC. Therefore, the F.S.L. report cannot be used against the appellant in absence of an opportunity being given to him to explain under Section 313 of CrPC. Furthermore, though the Trial Court has found that the appellant was present at the spot with the dead-body of the deceased, however, according to the statement of PW-2 Bhuneshwar Prasad Sahu, the appellant was sitting in the police vehicle and the dead-body of the deceased was lying at the spot and other persons were also present there. In that view of the matter, the finding recorded by the Trial Court that the appellant was sitting with the dead-body is incorrect finding and is not based on the evidence available on record. Even otherwise, a confession made to the police is inadmissible in evidence under Section 25 of the Evidence Act.

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(Cr.A. No. 1295 of 2016)

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Under the circumstances, the prosecution has failed to establish its case beyond all reasonable doubts and therefore the appellant is entitled to acquittal from the offence punishable under Section 302 of IPC on the basis of benefit of doubt.

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Accordingly, the impugned judgment and order dated 30.6.2016 is set aside/quashed. The appellant is acquitted of the charge under Section 302 of IPC. He is stated to be in jail since 24.3.2015. He be set at liberty forthwith, if not required in any other offence.

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Resultantly, this criminal appeal is allowed.

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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 for necessary information and action, if any, at the earliest.

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Sd/Sd/(Sanjay K. Agrawal) (Sanjay S. Agrawal) Judge Judge

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sharad

Rakesh Dhruv v. State Of Chhattisgarh

Case brief

What is this about?

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Rakesh Dhruv v. State Of Chhattisgarh

Case brief

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