Dilharan Navratna Vs State Of Chhattisgarh

judgment of conviction and order of sentence dated 27.02.2017, passed by learned 3^rd Additional Sessions Judge, Balodabazar, District - Balodabazar-Bhatapara (C.G.) in Sessions Trial No. 31/2016, whereby the appellant has been convicted for offences punishable under Sections 302 & 364 of IPC and sentenced as under:-

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CONVICTION	SENTENCE
U/s 302 of IPC	Life imprisonment and fine of Rs.
	3000/-, in default of payment of fine
	amount, additional R.I. for 6 months.
U/s 364 of IPC	Rigorous imprisonment for 10 years and
	fine of Rs. 2000/-, in default of payment
	of fine amount, addition R.I. for 6 months.

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(Both the sentences were directed to run concurrently).

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The case of the prosecution, in short, is that on 25.05.2016, between 11:00 am. to 06:00 pm. in village Baglota, Police Station Bilaigarh, District – BalodabazarBhatapara, the appellant kidnapped the minor victim Vishal Navratna aged about 13 years and strangulated till death, thereby, committed the aforesaid offences.

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Further, the case of the prosecution in a nutshell, is that on 28.05.2016 at 06:00 pm, Arun, nephew of the complainant informed the complainant that Vishal (now deceased) had gone to the pond to take a bath and appellant - Dilharan of the village called Vishal, took him to Hardayal’s field, strangulated him to death and also assaulted the deceased

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with stone. On the basis of the information merg intimation was registered vide Ex.P-1 and FIR was registered vide Ex.P-2. Thereafter, Najari Naksha was prepared vide Ex. P- 4, Inquest was conducted vide Ex.P-6 and the dead body was sent for postmortem examination which was conducted by, Dr. Lokesh Sahu (PW-15) vide Ex.P-20 in which the cause of death was opined to be cardio-respiratory failure because of hemorrhagic & Asphyxia and the nature of death was homicidal. The appellant-accused was arrested vide Ex.P-17. Memorandum statement of the appellant was recorded vide Ex.P-8, pursuant to which, shirt and pant of the deceased were seized vide Ex.P-9. A stone was seized vide Ex.P-10 from the spot. Clothes of the deceased were seized vide Ex.P-13 and sent for chemical examination to FSL. In FSL report, no blood was found on the shirt and pant (Articles D1 & D2) of the appellant, however, human blood was found on the clothes (E1 & E2) of the deceased. After due investigation, the appellant was charge-sheeted for the aforesaid offence before the jurisdictional criminal court and the case was ultimately committed to the Sessions Court, Balodabazar for trial and its 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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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 15 witnesses and exhibited 21 documents. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, appellant-accused in support of his defence has exhibited only 4 documents (Exs.D-1 to D-4).

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After conclusion of the trial, the trial Court, on appreciation of the oral and documentary evidence available on record, convicted the appellant for the offences punishable under Sections 302 & 364 of I.P.C. and sentenced him as mentioned above in the opening para of this judgment against which the present appeal has been preferred by the appellant.

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Learned counsel for the appellant, submits that the prosecution has failed to bring home the offence beyond reasonable doubt as the incriminating circumstances drawn by the trial Court in para 14 are not established at all, and the appellant has been convicted only on the basis of surmises and conjectures. As such, the impugned judgment is liable to be set aside and the appellant is entitled for acquittal as there is no evidence in this case against the appellant.

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Learned State counsel supports the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt, and the conviction of the appellant for the offences under Section 302 & 364 of I.P.C. is well merited, as such, the appeal deserves to be dismissed.

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

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The first question for consideration is, whether the death of deceased was homicidal in nature?

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10. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex.P-20 proved by Dr. Lokesh Sahu (PW-15) that the death of the deceased was homicidal in nature, which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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11. Now, the question would be whether the appellant is the author of the crime in question?

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12. In the instant case, there is no direct evidence available on record and case of the prosecution is solely based on circumstantial evidence. The five golden principles which constitute the panchsheel of the proof of a case based on

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circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 1 which must be fulfilled for convicting an accused on the basis of circumstantial evidence. The relevant paragraph 153 of the said judgment reads as under: -

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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.

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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 Maharashtra² where the following observations were 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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(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,

1 (1984) 4 SCC 116

2 (1973) 2 SCC 793

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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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13. Now the circumstantial evidence against the appellantaccused is as under which the trial Court has called out in para 14:-

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“14. अभि�योजन का ्ቚकरण परिरቝኌ��ति� जन्य साቌኚय पर आधारिर� है । हत्या के हे�ु निनम्नानुसार परिरቝኌ��ति�याँ हैंः-

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1/ अभि�यु्ሹ का मृ�क नि.शाल के निप�ा ्ቛारिरकेश कुमार न.रत्न की पत्नी सरोजनी बाई के सा� छेडछाड के नि..ाद लेकर रंजिजश है?

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2/ अभि�यु्ሹ को मृ�क नि.शाल को �ालाब से ले जा�े हुए घटना के �त्काल बाद देखा जाना?

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3/ अभि�यु्ሹ के मेमोरेण्डम के आधार पर सम्पቈኌCयों का ज्቎ निकया जाना और ज्቎ कपडे ए.ं पत्�र में मान. र्ሹ पाया जाना?

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14. Reverting to the facts of this case, so far as the first incriminating circumstance is concerned, the appellant had outraged the modesty of Sarojni Bai (PW-2), mother of the deceased prior to the date of the incident, it is stated by the Dwarkesh Kumar Navratna (PW-1), father of the deceased and Sarojni Bai (PW-2), mother of the deceased. However, it is clear from the statement of Sarojni Bai (PW-2) that the appellant is said to have out-raged the modesty of Sarojni Bai (PW-2) for the number of times but in fact, no FIR was

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lodged till date, therefore, it is unnatural that for an offence like out outraging the modesty the victim and her husband would not lodge report against the appellant, on that basis, it cannot be held that the motive of offence has been established.

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15. The next circumstance is the theory of ‘last seen together’ which the trial Court has found established.

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16. 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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17. In the matter of Jaharlal Das v. State of Orissa 3, 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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18. Similarly, in the matter of Paramjit Singh and others v. State of Punjab and others 4, 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

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3 (1991) 3 SCC 27

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4 (1997) 4 SCC 156

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the investigating officer therein as to why the statements could not be recorded earlier.

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19. In the matter of Arjun Marik v. State of Bihar 5, it has been

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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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20. Likewise, in the matter of State of Goa v. Sanjay

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Thakran 6, 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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5 1994 Supp (2) SCC 372

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6 (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 together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused

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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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21. Similarly, in the matter of Kanhaiya Lal v. State of

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Rajasthan 7, their Lordships of the Supreme Court have clearly held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime and there must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant in our considered opinion, by itself cannot lead to proof of guilt against the appellant. It has been held in paragraphs 15 and 16 as under :-

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“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 Rajasthan¹ .

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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

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7 (2014) 4 SCC 715

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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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22. In the matter of Anjan Kumar Sarma v. State of Assam 8, 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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23. In the matter of Navaneethakrishnan v. State by Inspector of Police 9, 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 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

8 (2017) 14 SCC 359

9 (2018) 16 SCC 161

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

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another 10, their Lordships of the Supreme Court found that there was considerable time gap of approximately 8½ hours when the deceased was last seen alive with the accused persons and their Lordships held that there being a considerable time gap between the persons seen together and the proximate time of crime, the circumstance of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused.

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10 (2007) 3 SCC 755

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25. In the instant case, as per the statement of Karan Kumar Navratna (PW-9), the appellant had taken the deceased along with him alive on 28.05.2016 at 11:00 am. and the dead body of the deceased was recovered on 29.05.2016 at 02:10 am. vide Ex. P-1, Merg Intimation with a gap of more than 12 hours, as such, there is a considerable time gap between the last seen together and the time when the dead body of the deceased was recovered. Therefore, it cannot be held that only the appellant is the perpetrator of the offence and in the absence of corroboration, it cannot be held that the appellant is the author of the crime as per the decision of the Hon’ble Supreme Court in the matter of Navaneethakrishnan (supra). However, in shape of corroboration, it is quite vivid that the blood-stained stone was recovered from the spot vide Ex.P-10 but it was not recovered pursuant to the memorandum statement (Ex.P-8) of the appellant. In the FSL report no blood stain was found on the shirt and pant of the appellant which was recovered pursuant to the memorandum statement of the deceased, however, certainty on the Capri-pant and shirt of the deceased human blood was found but merely on the basis of this, the appellant cannot be convicted for the offence punishable under Section 302 of IPC as the circumstances are not complete as per the judgment in matter of Sharad Birdhichand Sarda (supra). As such, in the absence of proof of circumstances or chain of circumstances, only the theory of

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‘last seen together’ cannot be made the sole basis for the conviction of the appellant as it would be unsafe to rest conviction only on the theory of ‘last seen together’.

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26. Accordingly, we are of the considered opinion that the appellant is entitled for acquittal on the ground of benefit of doubt. The conviction of the appellant for the offences under Sections 302 & 364 of I.P.C. is hereby set aside and he is acquitted of the said charge. Since the appellant is in jail from 29.05.2016, we direct that he be released from jail forthwith, if not required in any other case.

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27. Accordingly, this Criminal Appeal is allowed.

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28. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned and to the Superintendent of Jail where he lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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

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H.L. Sahu

Dilharan Navratna v. State Of Chhattisgarh

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Dilharan Navratna v. State Of Chhattisgarh

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