Loknath Vs State Of Chhattisgarh

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NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 443 of 201 7

(Arising out of judgment dated 16.01.2017 passed in Sessions Trial No. 90/2016 by the learned Sessions Judge, Janjgir-Champa)

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Loknath S/o Amritlal Tandon, Aged About 27 Years R/o Junadih Jhilmili, Police Station Pamgarh, Civil And Revenue District Janjgir Champa, Chhattisgarh.

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---Appellant

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Versus

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State Of Chhattisgarh Through Station House Officer, Police Station Pamgarh, District Janjgir Champa, Chhattisgarh.

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---Respondent

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For Appellant For State-Respondent	:- Ms. :- Mr.	Seema Singh , Advocate S. S. Baghel, Dy. G.A.

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

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Judgment on Board

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(06.02.2024 )

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Sanjay K. Agrawal, J.

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1 . This criminal appeal filed by the appellant-accused,

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under Section 374(2) of Cr.P.C., is directed against

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the impugned judgment of conviction and order of sentence dated 16.01.2017, passed by learned Sessions Judge, Janjgir-Champa (C.G.) in Sessions Trial No. 90/2016, whereby the appellant has been convicted for offence punishable under Section 302 of IPC and sentenced to undergo rigorous imprisonment for life with fine of Rs.100/- and, in default of payment of fine, to undergo additional rigorous imprisonment for five days.

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2 . The case of the prosecution, in short, is that on 26.02.2016 at about 03.30 p.m., near Uraiha Nala in village Chandipara, Police Station Pamgarh, District – Janjgir-Champa, the appellant is alleged to have assaulted Sonu @ Tanmay by stone on his head and face, as a result of which, he suffered grievous injuries and died, thereby committed the offence of murder punishable under Section 302 of IPC. It is the case of prosecution that on 26.02.2016, Shanichram (PW-1) along with Dileram Banjare (PW7) and Basant Suman made an oral information to Police Station, Pamgarh stating that on the date of offence at around 3.30 p.m., the Appellant took the deceased Sonu @ Tanmay Banjare with him on the

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motorcycle towards Chandipara saying that he was taking him for a ride. When the appellant and the deceased did not return home by 5 pm, Shanichram (PW-1) called the Appellant on his mobile but the phone of appellant was switched off. Then he, along with Dileram Banjare (PW-7) and Basant Suman, went to Chandipara Uraiha and found Sonu @ Tanmay (deceased) dead lying near the Nala (brook) whose head was crushed with stone. Based on the oral information of Shanichram (PW-1), Merg Intimation (Ex. P-1) was recorded and FIR (Ex. P-2) was registered. Inquest was conducted vide Ex. P/4 and the dead body was sent for postmortem examination which was conducted by Dr. R. Dahire (PW-11) vide Ex. P/16 in which the cause of death is opined to be antemortem head injuries leading to excessive haemorrahage, sudden cardio respiratory arrest shock and the nature of death was homicidal. Memorandum statement of the appellant was recorded vide Ex. P/11, pursuant to which, a large stone was seized vide Ex.P/14. In addition, Full pant and full shirt of appellant were seized vide Ex. P-15. All the seized articles including the clothes of

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deceased were sent for chemical examination to the FSL and as per FSL report (Ex. P/22A) human blood was found on the stone and clothes of the deceased.

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3 . After completion of 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, JanjgirChampa 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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4 . During the course of trial, in order to bring home the offence, the prosecution has examined as many as 12 witnesses and exhibited 28 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 examined one witness but no document has been

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exhibited.

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

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6. Learned counsel for the appellant, submits that the theory of last seen together has not been established beyond reasonable doubt and on the basis of last seen together, the appellant cannot be convicted as it requires corroboration. He would further submit that the appellant was suffering from insanity and therefore, he is entitled for the protection under Section 84 of the IPC. As such, the impugned judgment is liable to be set aside and the appellant is entitled for acquittal.

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7. 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

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offence under Section 302 of I.P.C. is well merited, as such, the appeal deserves to be dismissed.

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

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9. The trial Court has convicted the appellant by finding five circumstantial evidences against the appellant recorded in para-18 of the impugned judgment which are as under:

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मृतक सोनू उ्ቛ� तन्मय की मृत्यु दि�नाँक-26/02/2016 की ्ቚकृतित मानवघाती या हत्यात्मक थी ।

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मृतक की हत्या का हेतुक यह था दिक आरोपी अपनी पत्नी के चरिर्ቔ पर शंका करता था ।

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मृतक सोनू उ्ቛ� तन्मय को उसकी मृत्यु के लगभग एक घंटे पहले आरोपी के साथ अ०सा०-1 शदिनचराम, अ०सा०-2 राधाबाई एवं अ०सा०-5 िሬपकी टण्डन ्ቛारा �ेखा गया था और उसके एक घंटे बा� मृतक का शव उरैहा नाला के पास पाया गया ।

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आरोपी ने मृतक की मृत्यु के कारण के संबंध में कोई भी स्प्ቖीकरण नहीं दि�या है ।

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आरोपी ्ቛारा बताये जाने पर हत्या के अपराध में ्ቚयु्ሹ पत्थर की बराम�गी की गयी, जिजसमें र्ሹ पाया गया लेदिकन आरोपी ने कोई स्प्ቖीकरण नहीं दि�या दिक उसके बताये अनुसार बराम� दिकये गये पत्थर में र्ሹ कहां से आया?

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10. In the instant case, there is no direct evidence available on record and the case of prosecution is solely based on circumstantial evidence. The five

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golden principles which constitute the Panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand

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Sarda v. State of Maharashtra¹ 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'

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1(1984) 4 SCC 116 2(1973) 2 SCC 793

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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,

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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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11. Now we consider the circumstances recorded by

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the trial Court in the light of the principles of law laid down by the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda (supra). The first and foremost circumstance for consideration is as to whether the death of deceased Sonu @ Tanmay was homicidal in nature?

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12. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem

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report Ex. P-16 proved by Dr. R. Dahire (PW-11) 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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13. As regards motive, the wife of the appellant Pinky Tandan (PW-5) in her court statement has clearly stated that the appellant used to demand money from her and always doubted her character and therefore , the trial Court has rightly found the motive of offence to be established, in paragraph-19 of its judgment, which is in our opinion a correct finding of fact.

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14. The next circumstance is that the appellant and the deceased were last seen together, one hour prior to the commission of offence, by Shanichram (PW-1), Radha Bai (PW-2) and Pinki Tandan (PW-5) and within one hour thereafter Sonu (deceased) was found dead near Uraiha Nala and in this regard the appellant has not given any explanation in his statement under 313 CrPC.

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15. A careful consideration of the statement of Shanichram

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(PW-1) who is the father of the deceased would show that on the date of offence, at about 3 p.m., the appellant asked for the key of his motorcycle and also demanded Rs.200 from his wife i.e. Radha Bai (PW-2) by saying that he would take Sonu (deceased) for a ride. The appellant after taking Rs.200 from Radha Bai (PW-2) took the deceased along with him on the motorcycle for a ride but he did not return. Thereafter, on contact being made with Mulmula Police Station, they came to know that the appellant had told in the Police Station that he had committed murder of Sonu whose dead body was lying near Uraiha Nala. On this information, they went to Uraiha Nala and found the dead body of Sonu whose head was crushed. The mother of the deceased Radha Bai (PW-2), corroborating the statement of Shanichram (PW-1), has clearly stated that on the date of offence, at about 3-4 p.m., taking the key of motorcycle and Rs.200 from her, the appellant took the deceased along with him on the motorcycle for a ride. However, when the deceased did not return, they searched for him and from the police station,

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they came to know that the appellant had murdered Sonu near Uraiha Nala. Pinky Tandan (PW-5), the sister of the deceased and the wife of appellant has stated that on the date of offence at about 3 p.m. the appellant took the deceased along with him on the motorcycle by saying that he was taking him for a ride. When the appellant did not return along with the deceased, they searched for him and came to know from Police Station, Mulmula that the appellant had murdered Sonu near Uraiha Nalal. When the appellant was put to question as to how and where he parted the company of the minor child Sonu @ Tanmay, he has not given any explanation in this regard in his statement made under section 313 CrPC. The trial Court has also considered, in para 24 of its judgment, that the time gap between the last seen together of the appellant and the deceased and the recovery of dead body is so short a period i.e. within an hour, that possibility of any person other than the appellant being the perpetrator of the crime becomes impossible. Furthermore, as per FSL report (Ex. P/22A) human blood was found on ‘E’ which is the stone seized on the memorandum statement of

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appellant & on F1 which is the full shirt of the deceased. Thus, the theory of last seen together has clearly been established by the prosecution and dead body was recovered within one hour.

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16. The Supreme Court in the matter of Sucha Singh vs. State of Punjab³ while dealing with a case where two persons were taken away by armed assailants from their house at night and their dead bodies, studded with gunshot injuries, were found next morning lying near their house and the abductors did not explain and furnish any information, which was within their exclusive knowledge as to what happened to the deceased therein after they were abducted, it was held that presumption can be drawn and the abductors were responsible for murder of the deceased therein and observed in Para-15, 18, 19 & 20 as under:

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“15. The abductors alone could tell the court as to what happened to the deceased after they were abducted. When the abductors withheld that information from the court there is every justification for drawing the inference, in the light of all the preceding and succeeding circumstances adverted to above, that the abductors are the murderers of the deceased.

3(2001) 4 SCC 375

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Learned senior counsel contended that Section 106 of the Evidence Act is not intended for the purpose of filling up the vacuum in prosecution evidence. He invited our attention to the observations made by the Privy Council in Attygalle and anr. vs. The King (AIR 1936 PC 169) and also in Stephen Seneviratne vs. The King (AIR 1936 PC 289). In fact the observations contained therein were considered by this Court in an early decision authored by Vivian Bose, J, in Shambhu Nath Mehra vs. State of Ajmer (AIR 1956 SC 404). The statement of law made by the learned Judge in the aforesaid decision has been extracted by us in State of West Bengal vs. Mir Mohammad Omar (supra). It is useful to extract a further portion of the observation made by us in the aforesaid decision:

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“33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”

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We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference.

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We have seriously bestowed our consideration to the arguments addressed by the learned senior counsel. We only reiterate the legal principle adumbrated in State of West Bengal vs. Mir Mohammad

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Omar, AI 1936 PC 169 that when more persons than one have abducted the victim, who was later murdered, it is within the legal province of the court to justifiably draw a presumption depending on the factual situation, that all the abductors are responsible for the murder. Section 34 of the IPC could be invoked for the aid to that end, unless any particular abductor satisfies the court with his explanation as to what else he did with the victim subsequently, i.e. whether he left his associates en-route or whether he dissuaded others from doing the extreme act etc. etc.”

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17. Very recently, the Supreme Court in the matter

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of Ram Gopal vs. Madhya Pradesh (2023) 5 SCC

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534 by relying upon its earlier decisions in the matter of Rajender vs. State (NCT of Delhi)4 and Satpal vs. State of Haryana5 held that in a case based on circumstantial evidence furnishing or nonfurnishing of explanation by accused would be very crucial fact and theory of last seen together as propounded by the prosecution has to be proved against him and observed in Para-06 & 9 as under:

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“6. It may be noted that once the theory of “last seen together” was established by the prosecution, the accused was expected to offer some explanation as to when and under what circumstances he had parted the company of the deceased. It is true that the burden to prove the guilt of the accused is always on the prosecution, however in view of Section 106 of the Evidence Act, when any fact is within the knowledge of any person, the burden of proving that fact is upon him. Of course, Section 106 is certainly not intended to relieve the prosecution of its duty to prove the guilt of the

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5(2018) 6 SCC 610

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4(2019) 10 SCC 623

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accused, nonetheless it is also equally settled legal position that if the accused does not throw any light upon the facts which are proved to be within his special knowledge, in view of Section 106 of the Evidence Act, such failure on the part of the accused may be used against the accused as it may provide an additional link in the chain of circumstances required to be proved against him. In the case based on circumstantial evidence, furnishing or non- furnishing of the explanation by the accused would be a very crucial fact, when the theory of “last seen together” as propounded by the prosecution was proved against him.

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In view of the afore-stated legal position, it is discernible that though the last seen theory as propounded by the prosecution in a case based on circumstantial evidence may be a weak kind of evidence by itself to base conviction solely on such theory, when the said theory is proved coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused does owe an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death might have taken place. If the accused offers no explanation or furnishes a wrong explanation, absconds, motive is established and some other corroborative evidence in the form of recovery of weapon etc. forming a chain of circumstances is established, the conviction could be based on such evidence.”

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18. Reverting to the facts of the present case, in the light of the aforesaid proposition of law laid down by their Lordships of the Supreme Court, it is quite vivid that the death of the deceased as has already been held is homicidal in nature. Admittedly and un-disputedly, as per the statement of Shanichram (PW-1), Radha Bai (PW-2) and Pinki Tandan (PW-5) it is clearly

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established beyond doubt that on the date of offence, at about 3 pm, it is the appellant who had taken the deceased on the motorcycle for a ride and thereafter, within an hour, his dead body was found near Uraiha Nala. Therefore, the appellant could have clearly and easily informed/explained before the Court as to what transpired or what happened to the deceased after he was taken along with the appellant, which the appellant failed to do so in his statement recorded under Section 313 of CrPC. Therefore, in view of the decision of the Hon’ble Supreme Court in the case of Sucha Singh (supra) and Ramgopal (supra) it has to be held that it is the appellant who has committed the murder of Sonu @ Tanmay (the deceased), as no explanation in the statement under Section 313 of CrPC has been made by him as to what happened to the deceased or where he had gone after his company on 26.02.2016 at 3 pm. The appellant has also failed to explain in his statement under Section 313 CrPC as to how human blood was found on the stone which was seized as per his memorandum statement and the trial Court has rightly held in para-31 of its judgment that the

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prosecution has been able to prove the 5 th circumstance against the appellant.

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19. In that view of the matter, we are of the considered opinion that the chain of circumstances is complete and leads only to one conclusion that it was the appellant herein who committed the murder of Sonu @ Tanmay (the deceased), as the prosecution has been able to prove the five golden principles which constitute the “Panchsheel” of proof of a case based on circumstantial evidence, as laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda (Supra). Hence, the trial Court is justified in convicting and sentencing the appellant for the offence punishable under Section 302 of IPC and we do not find any merits in the appeal.

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20. Thus, the present criminal appeal deserves to be and is accordingly dismissed.

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

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Khatai

Loknath v. State Of Chhattisgarh

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Loknath v. State Of Chhattisgarh

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